lill 


LIBRARY 


UNIVERSITY  OF  CALIFORNIA. 


Class 


OOCUMEHT3 


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\  of  H  v^?  OOT- 

EEPORT 


OF  THE 


DEBATES   AND    PROCEEDINGS 


OF  THE 


CONVENTION 

FOR  THE 

REVISION    OF   THE    CONSTITUTION 

OF  THE  STATE  OF  NEW-YORK, 
184ft. 


REPORTED  BY 
WILLIAM  G.   BISHOP   AND  WILLIAM   H.  ATTREE, 


ALBANY \ 


AT  THE   OFFICE   OF  THE   EVENING 

1846. 


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THE 


CONSTITUTION 

OF  THE 

STATE    OF    NEW-YORK, 

AS    AMENDED. 


WE  THE  PEOPLE   of  the  State  of  New- York,  grateful  to  Almighty  God  for  our  Freedom:  in 
order  to  secure  its  blessings,  DO  ESTABLISH  this  Constitution* 


ARTICLE  I. 

SEC  now  1.  No  member  of  this  State  shall  be  disfranchis- 
ed, or  deprived  of  any  of  the  rights  or  privileges,  secured 
to  any  citizen  thereof,  unless  by  the  law  of  the  land,  or 
the  judgment  of  his  peers. 

&  ±  The  trial  by  jury  in  all  cases  in  which  it  has  been 
heretofore  used  shall  remain  inviolate  forever;  but  a  jury 
trial  may  be  waived  by  the  parties  in  all  civil  cases  in  the 
manner  to  be  prescribed  by  law.  jj 

&  3.  The  free  exercise  and  enjoyment  of  religious  pro, 
fession  and  worship,  without  discrimination  or  preference 
shall  forev  T  be  allowed  in  this  State  to  all  mankind:  and 
no  person  shall  be  rendered  incompetent  to  be  a  witness 
on  account  of  his  opinions  on  matters  of  religious  belief, 
but  the  liberty  of  conscience  hereby  secured  shall  not  be 
so  construed  as  to  excuse  acts  of  licentiousness,  or  justify 
practices  inconsistent  with  the  peace  or  Safety  of  this  State. 

!j  4.  The  privilege  of  the  writ  of  habeas  corpus  shall  not 
be  suspended,  unless  when,  in  cases  of  rebellion  or  inva- 
sion, the  public  safety  may  require  its  suspension. 

6  5.  Excessive  bail  shall  not  be  required,  nor  excessive 
fines  imposed,  nor  shall  cruel  and  unusual  punishments 
be  inflicted,  nor  shall  witnesses  be  unreasonably  detained. 

^  6.  No  person  shall  be  held  to  answer  for  a  capital  or 
otherwise  infamous  crime  (except  in  cases  of  impeach- 
ment, and  in  cases  of'militia,  when  in  actual  service; 
and  the  land  and  naval  forces  in  time  of  war,  or  which  this 
State  may  keep  with  the  consent  of  Congress  in  time  oi 
peace;  and  in  cases  of  petit  larceny,  under  the  regulation 
of  the  Legislature),  unless  on  presentment  or  indictment 
of  a  grand  jury,  and  in  any  trial  in  any  court  whatever, 
the  party  accused  shall  be  allowed  to  appear  and  defend 
in  person  and  with  couasel,  as  in  civil  actions.  No 
person  shall  be  subject  to  be  twice  put  in  jeopardy  for  the 
same  oflence;  nor  shall  he  be  compelled  in  any  criminal 
case,  to  be  a  witness  against  himself;  nor  be  deprived  of 
life,  liberty  or  property  without  due  process  of  law:  nor 
;?h  ill  private  property  be  taken  for  public  use,  without 
just  compensation. 

ij  7.  When  private  property  shall  be  taken  for  any  pub 
ic  use,  the  compensation  to  be  made  therefor,  when  such 
compensation  is  not  made  by  the  State,  shall  be  ascertain- 
ed by  a  jury,  or  by  not  less  than  three  commissioners  ap- 
pointed  by  a  court  of  record,  as  shall  be  prescri- 
bed  by  law.  Private  roads  may  be  opened  in  the  manner 
to  be  prescribed  by  law;  but  in  every  case  the  necessity 
ol  the  road,  and  the  amount  of  all  damage  to  be  sustained 
by  the  opening  thereof,  shall  be  first  determined  by  a  jury 


of  freeholders,  and  such  amount,  together  with  the  expen- 
ses of  the  procesding,  shall  be  paid  by  the  person  to  be  be- 
nefitted. 

^  8.  Every  citizen  may  freely  speak,  write,  and  publish 
his  sentiments  on  all  subjects,  being  responsible  for  the 
abuse  of  that  right;  and  no  law  shall  be  passed  to  restrain 
or  abridge  the  liberty  of  speech,  or  of  the  press.  In  all 
criminal  prosecutions  or  indictments  for  libel,  the  truth 
may  be  given  in  evidence  to  the  jury;  and  if  it  shall  ap- 
pear to  the  jury,  that  the  matter  charged  as  libellous  is 
true,  and  was  p'ublished  with  good  motives,  arid  for  justifi- 
able ends,  the  .party  shall  be  acquitted:  and  the  jury  shall 
have  the  right  to  determine  the  law  and  the  fact. 

$}9.  The  assent  of  two-thirds  of  the  members  elected  to 
each  branch  of  the  Legislature,  shall  be  requisite  to  every 
bill  appropriating  the  public  moneys  or  property  for  local 
or  private  purposes. 

§  10.  No  law  shall  be  passed  abridging  the  right  of  the 
people  peaceably  to  assemble  and  to  petition  the  govern 
ment,  or  any  department  thereof,  nor  shall  any  divorce  be 
ranted  otherwise  than  by  due  judicial  proceedings,  nor 
hall  any  lottery  hereafter  be  authorised  or  any  sale  of 
lottery  tickets  allowed  within  this  state. 

§  11.  The  people  of  this  state  in  their  right  of  sovereign- 
ty, are  deemed  to  possess  the  original  and  ultimate  proper- 
ty'in  and  to  all  lands  within  the  jurisdiction  of  the  state; 
a'nd  all  lands  the  title  to  which  shall  fail,  from  a  delect  of 
heirs,  shall  revert  or  escheat  to  the  people. 

§  12.  All  feudal  tenures  of  every  description,  with  all 
their  incidents,  are  declared  to  be  abolished,  saving  how- 
ever all  rents  and  services  certain  which  at  any  time  here- 
tofore have  been  lawfully  created  or  reserved. 

§  13.  All  lands  within  this  state  arc  declared  to  be  allo 
dial,  so  that,  subject  only  to  the  liability  to  escheat,  the  en- 
rte  and  absolute  property  is  vested  in  the  owners  accord- 
ng  to  the  nature  o;  their  respective  estates. 

§  14.  No  lease  or  grant  of  agricultural  land  [for  a.  longer 
i)eiiod  than  twelve  years  hereafter  made,  in  which  shal 
>e  reserved  any  rent  or  service  of  any  kind,  shall  be  valid* 

ij  15.  All  fines,  quarter  sales,  or  other  like  restraints  up. 
on  alienation  le-ervcd  in  any  grant  of  land,  hereafter  to 
be  made,  shall  be  void. 

§  Iti.  No  purchase  or  contract  for  the  sale  of  lands  in  this 
State,  made  since  the  fourteenth  day  of  October,  one  thou- 
sand seven  hundred  and  seventy-five;  or  which  may  here- 
after be  made,  of,  or  with  the  Indians,  shall  be  valid,  unless 
made  under  the  authority,  and  with  the  consent  of  the  Leg- 
islature. 


8 


fijl7.  Such  parts  of  the  common  law,  and  of  the  acts  the  of 
Legislature  ot  the  colony  of  New- York,  as  together  did 
form  the  law  of  the  said  colony,  on  the  nineteenth  day  of 
April  one  thousand  seven  hundred  and  seventy-five,  and 
the  resolutions  of  the  Congress  of  the  said  colony,  and  of 
the  Convention  of  the  State  of  New-York,  in  force  on  the 
twentieth  day  ot  April,  one  thousand  seven  hundred  and 
seventy-seven,  which  have  not  since  expired,  or  been  re- 
pealed or  altered;  and  such  acts  of  the  Legislature  of  this 
State  as  are  now  in  force,  shall  be  and  continue  the  law  of 
this  state,subject  to  such  alterations  as  the  legislature  shall 
make  concerning  the  same.  But  ail  such  parts  of  the  com- 
mon law,  and  such  of  the  said  acts,  or  parts  thereof,  as  are 
repugnant  to  this  Constitution,  are  hereby  abrogated,  and 
the  legislature,  at  its  first  session  after  the  adoption  of  this 
Constitution,  shall  appoint  three  .commissioners,  whose 
duty  it  shall  be  to  reduce  into  a  written  and  systematic 
code  the  whole  body  of  the  law  of  this  state,  or  so  much 
and  such  parts  thereof  as  to  the  said  commissioners  shall 
seem  practicable  and  expedient.  And  the  said  commission- 
ers shall  specify  such  alterations  and  amendments  therein 
as  they  shall  deem  proper,  and  they  shall  at  all  times  make 
reports  of  their  proceedings  to  the  legislature,  when  called 
upon  to  do  so  ;  and  the  legislature  shall  pass  laws  regula- 
ting the  tenure  of  office,  the  filling  of  vacancies  therein, 
and  the  compensation  of  the  said  commissioners;  and  shall 
also  provide  for  the  publication  of  the  said  code,  prior  to 
its  being  presented  to  the  legislature  for  adoption. 

§  18.  All  grants  of  land  within  this  State,  made  by  the 
King  of  Great  Britain,  or  persons  acting  under  his  author- 
ity, after  the  fourteenth  day  of  October,  one  thousand  sev- 
en hundred  and  seventy-five,  shall  be  null  and  void;  but 
nothing  contained  in  this  Constitution  shall  affect  any 
grants  of  land  within  this  State,  made  by  the  authority  of 
the  said  king  or  his  predecessors,  or  shall  annul  any  char- 
ters to  bodies  politic  and  corporate,  by  him  or  them  made, 
before  that  day;  or  shall  affect  any  such  grants  or  charters 
since  made  by  this  State,  or  by  persons  acting  under  its 
authority;  or  shall  impair  the  obligation  ot  any  debts  con- 
tracted by  this  State,  or  individuals,  or  bodies  corporate,  or 
any  other  rights  of  property,  or  any  suits,  actions,  rights 
of  action,  or  other  proceedings  in  courts  of  justice. 

ARTICLE  II. 

SECTION  1.  Every  male  citizen  of  the  age  of  twen- 
ty one  years,  who  shall  have  been  a  citizen  lor  ten  days 
and  an  inhabitant  of  this  state  one  year  next  preceding 
any  election^  and  lor  the  last  four  moaths  a  resident  of  the 
county  where  he  may  offer  his  voto,  shall  be  entitled  to 
vote  at  such  election,  in  the  election  district  of  which  he 
shall  at  the  time  be  a  resident,  and  not  elsewhere,  lor  all 
officers  that  now  are,  or  hereafter  may  be,  elective  by  the 
people  :  But  such  citizen  shall  have  been  for  thirty  days 
oext  preceding  the  election,  a  resident  of  the  district  from 
which  the  officer  is  to  be  chosen  for  whom  he  offers  his 
vote.  But  no  man  of  color,  unless  he  shall  have  been  for 
three  years  a  citizen  of  this  state,  and  for  one  year  next 
receding  any  election,shall  have  been  seized,  and  posses- 
sed  of  a  freehold  estate  of  the  value  of  two  hundred  and  fitty 
dollars,  over  and  above  all  debts  and  incumbrances  charg- 
ed  thereon;  and  shall  have  been  actually  rated,  and  paid  a 
tax  thereon,  shall  be  entitled  to  vote  at  such  election. 
And  no  person  of  color  shall  be  subject  to  direct  taxation, 
unless  he  shall  be  seized  and  possessed  of  such  real  estate 
aforesaid. 

&  2.  Laws  may  be  passed  excluding  from  the  right  of 
suffrage  all  persons  who  have  been,  or  may  be  convicted 
of  bribery,  of  larceny,  or  of  any  infamous  cnme  ;  and  for 
depriving  every  person  who  shall  make  or  become  direct- 
ly or  indirectly  interested  in  any  bet  or  wager  depending 
upon  the  result  of  any  election,  from  the  right  to  vote  at 
such  election. 

63.  For  the  purpose  of  voting,  no  person  shall  be 
deemed  to  have  gained  or  lost  a  residence,  by  reason 
of  his  presence  or  absence,  while  employed  in  the 
service  of  the  United  States;  nor  while  engaged  in  the 
navigation  of  the  waters  of  this  state,  or  of  the  United 
States,  or  of  the  high  seas;  nor  while  a  student  of  any 
seminary  of  learning;  nor  while  kept  at  any  alms  house, 
or  other  asylum,  at  public  expense;  nor  while  confined  in 
any  public  prison. 

h4.  Laws  shall  be  made- -for  ascertaining  by  proper 
proofs  the  citizens  who  shall  be  entitled  to  the  right  of 
suffrage  hereby  established. 

&  5.  All  elections  by  the  citizens  shall  be  by  ballot,  ex- 
cept for  such  town  officers  as  may  by  law  be  directed  to 
be  otherwise  chosen. 


ARTICLE  III. 

SECTION  I.  The  legislative  p%wer  of  this  state  shall  b** 
vested  in  a  Senate  and  Assembly. 

§  2.  The  Senate  shall  consist  of  thirty-two  members,  and 
the  Senators  shall  be  chosen  for  two  years.  The  Assem- 
bly shall  consist  of  one  hundred  and  twenty-eight  mem- 
bers, who  shall  be  annually  elected. 

$  3.  The  state  shall  be  divided  into  thirty-two  districts;, 
to  be  called  Senate  districts,  each  of  which  shall  choose 
one  Senator.  The  districts  shall  be  numbered  from  one  to 
thirty-two  inclusive. 

District  No.  1  shall  consist  of  the  counties  of  Suffolk, 
Richmond  and  Queens. 

District  No.  2  shall  consist  of  the  county  of  Kings. 

Districts  No.  3,  No.  4,  No.  5  and  No.  6,  shall  consist  of 
the  city  and  county  of  New  York.  And  the  board  of  Su- 
pervisors of  said  city  and  county  shall,  on  or  before  the 
first  day  of  May  1847,  divide  the  said  city  and  county  into 
the  number  of  senate  districts  to  which  it  is  entitled  as 
near  a&  may  be  of  an  equal  number  of  inhabitants,  exclu  - 
ding  aliens  and  persons  of  color  not  taxed,  and  consisting 
of  convenient  and  contiguous  territory,  and  no  Assem- 
bly District  shall  be  divided  in  the  formation  of  a  Senate- 
District.  The  board  of  supervisors  when  they  shall  have 
completed  such  division,  ehall  cause  certificates  thereoi 
stating  the  number  and  boundaries  of  each  district  and  the 
population  thereof,  to  be  filed  in  the  office  of  the  Secretary 
of  State  and  of  the  Clerk  of  the  said  city  and  county. 

District  No.  7  shall  consist  of  the  counties  of  Westches- 
ter,  Putnam  and  Rockland. 

District  No.  8  shall  consist  of  the  counties  ofDutchess 
and  Columbia. 

District  No.  9  shall  consist  of  the  counties  of  Grange 
and  Sullivan. 

District  No.  10  shall  consist  of  the  counties  of  Ulster  and 
Greene, 

District  No.  11  shall  consist  of  the  counties  of  Albany 
and  Schenectady. 

District  No.  12  shall  consist  of  the  county  of  Rensselaer. 

District  No.  13  shall  consist  of  the  counties  of  Washing- 
ton and  Saratoga. 

District  No.  14  shall  consist  of  the  counties  of  Warren, 
Essex  and  Clinton. 

District  No.  15  shall  consist  of  the  counties  of  St.  Law- 
rence and  Franklin. 

District  No.  16  shall  c  onsist  of  the  counties  of  Herkimer 
Hamilton,  Fulton  and  Montgomery. 

District  No.  17  shall  consist  of  the  counties  of  Scho 
harie  and  Delaware. 

District  No  18  shall  consist  of  the  counties  of  Otsego 
and  Chenang.o. 

District  No.  19  shall  consist  of  the  county  ofOneida, 

District  No.  20  shall  consist  of  the  counties  of  Madisorr 
and  Oswego. 

District  No.  21  shall  consist  of  the  counties  of  Jefferson 
and  Lewis. 

District  No.  22  shall  consist  of  the  county  of  Onondaga 

District  No.  23  shall  consist  of  the  counties  of  Cortland, 
Broome  and  Tioga. 

District  No.  24  shall  consist  of  the  counties  of  Cayuga 
and  Wayne. 

District  No.  25  shall  consist  of  the  counties  of  Tompkins 
Seneca  and  Yates. 

District  No.  26  chsll  consist  of  the  counties  of  Steuben 
and  Chemung. 

District  No.  27  shall  consist  of  the  county  of  Monroe. 

District  No.  28  shall  consist  of  the  counties  of  Orleans, 
Genesee  and  Niagara. 

District  No.  29  shall  consist  of  the  counties  of  Ontario- 
find  Livingston. 

District  No.  30  shall  consist  of  the  counties  of  Allegany 
and  Wyoming. 

District  No.  31  shall  consist  of  the  county  of  Erie. 

District  No.  32  shall  consist  of  the  counties  of  Chautau- 
que  and  Cattaraugus. 

^  4.  An  enumeration  of  the  inhabitants  of  the  State  shall 
betaken,  under  the  direction  of  the  Legislature,  in  the 
year  one  thousand  eight  hundred  and  fifty-five,  and  at  the 
end  of  every  ten  "years  thereafter;  and  the  said  districts 
shall  be  so  altered  by  the  Legislature,  at  the  first  session, 
after  the  return  of  every  enumeration,  that  each  Senate 
district  shall  contain,  as  nearly  as  may  be,  an  equal  num- 
ber of  inhabitants,  excluding  aliens,  and  persons  of  color 
not  taxed;  and  shall  remain  unaltered  until  the  return  of 
another  enumeration,  and  shall  at  all  times  consist  of  con 
tiguous  territory,  and  no  county  shall  be  divided  in  the 
formation  of  a  Senate  district,  except  such  county  shall  be 
equitably  entitled  to  two  or  more  senators. 

<j  6.  The  members  of  Assembly  shall  be  apportioned 


9 


among  the  several  counties  of  this  State,  by  the  legisla- 
ture, as  nearly  as  may  be,  according  to  the  number  of 
their  respective  inhabitants,  excluding  aliens,  and  persons 
of  color  not  taxed,  and  shall  be  chosen  by  single  districts. 
The  several  boards  of  supervisors  in  such  counties  of 
this  State,  as  are  now  entitled  to  more  than  one  member  of 
Assembly,  shall  assemble  on  the  first  Tuesday  of  January 
next,  and  divide  their  respective  counties  into  Assembly 
districts  equal  to  the  number  of  members  of  Assembly  to 
which  such  counties  are  now  severally  entitled  by  law, 
and  shall  cause  to  be  filed  in  the  offices  of  the  Secretary  of 
State  and  the  clerks  of  their  respective  counties,a  descrip- 
tion of  such  Assembly  districts,  specifying  the  number  of 
each  district,  and  the  population  thereof,  according  to  the 
last  preceding  State  enumeration,  as  near  as  can  be  ascer- 
tained. Each  Assembly  district  shall  contain,  as  nearly 
as  may  be,  an  equal  number  of  inhabitants,  excluding 
aliens  and  persons  of  color  not  taxed,  and  shall  consist  of 
convenient  and  contiguous  territory,  but  no  town  shall  be 
divided  in  the  formation  of  Assembly  districts. 

The  Legislature,  at  its  first  session  after  the  return  of 
every  enumeration,  shall  re-apportion  the  members  of  As- 
sembly  amon^  the  several  counties  ol  this  State,  in  man- 
ner aforesaid, "and  the  boards  of  supervisors  in  such  coun- 
ties as  may  be  entitled,  under  such  re-apportionment,  to 
more  than  one  member,  shall  assemble  at  such  time  as  the 
Legislature  making  such  re-apportionment  shall  prescribe, 
and  divide  such  counties  into  Assembly  districts,  in  the 
manner  herein  directed;  and  the  apportionment  and  dis- 
tricts so  to  be  made,  shall  remain  unaltered  until  another 
enumeration  shall  be  taken  under  the  provisions  of  the 
preceding  section. 

Every  county  heretofore  established  and  separately  or- 
ganized, except  the  county  of  Hamilton,  shall  always  be 
entitled  to  one  member  of  the  Assembly,  and  no  new  coun- 
ty shall  be  hereafter  erected,  unless  its  population  shall  en- 
title it  to  a  member. 

The  county  of  Hamilton  shall  elect  with  the  county  of 
Fulton,  until  the  population  of  the  county  of  Hamilton 
shall,  according  to  the  ratio,  be  entitled  to  a  member. 

§  6.  The  members  of  the  Legislature  shall  receive  for 
their  services,  a  sum  not  exceeding  three  dollars  a  day, 
from  the  commencement  of  the  session ;  but  such  pay  shall 
not  exceed  in  the  aggregate,  three  hundred  dollars  ibr  per 
diem  allowance,  except  in  proceedings  for  impeachment. 
The  limitation  as  to  the  aggregate  compensation  shall  not 
take  effect  until  1843.  When  convened  in  extra  session  by 
the  Governor,  they  shall  receive  three  dollars  per  day. 
They  shall  also  receive  the  sum  of  one  dollar  for  every 
ten  miles  they  ahall  travel,  in  going  to  and  returning  from 
their  place  of  meeting,  on  the  most  usual  route.  The 
Speaker  of  the  Assembly  shall,  in  virtue  of  his  office,  re- 
ceive an  additional  compensation  equal  to  one-third  of  his 
per  diem  allowance  as  a  member. 

t)  7.  No  member  of  the  Legislature  shall  receive  any 
civil  appointment  within  this  state,  or  to  the  Senate  of  the 
United  States,  from  the  Governor,  the  Governor  and  Sen- 
ate, or  from  the  Legislature,  during  the  term  tor  which  he 
shall  have  been  elected;  and  all  such  appointments,  and  all 
votes  given  for  any  such  member,  for  any  such  office  or 
appointment,  shall  be  void. 

(j  8.  No  person  being  a  member  of  Congress,  or  holding 
any  judicial  or  military  office  under  the  United  States,  shall 
hold  a  seat  in  the  Legislature.  And  if  any  person  shall, 
after  his  election  as  a  member  oftheLegislature.be  elected 
to  Congress,  or  appointed  to  any  office,  civil  or  military, 
under  the  government  of  the  United  States,  his  accept- 
ance thereof  shall  vacate  his  seat. 

§9.  The  elections  of  Senators  and  members  of  Assembly, 
pursuant  to  the  provisions  of  this  Constitution,  shall  be  held 
on  the  Tuesday  succeeding  the  first  Monday  of  November, 
unless  otherwise  directed  by  the  Legislature. 

<J  10.  A  majority  of  each  house  shall  constitute  a  quorum 
to  do  business.  Kach  house  shall  determine  the  rules  of  its 
own  proceedings,  and  be  thejudge  of  the  elections,  returns 
and  qualifications  of  its  own  members,  shall  choose  its  own 
officers,  and  the  Senate  shall  choose  a  temporary  president, 
when  the  Lieutenant  Governor  shall  not  attend  as  presi- 
dent, or  shall  act  as  Governor. 

§  11.  Each  house  shall  keep  a  journal  of  its  proceedings, 
and  publish  the  same,  except  such  parts  as  may  require 
secrecy.  The  doors  of  each  house  shall  be  kept  open, 
except  when  the  public  welfare  shall  require  secrecy.— 
Neither  house  shall,  without  the  consent  of  the  other,  ad 
journ  lor  more  than  two  days. 

(5 12.  For  any  speech  or  debate  in  either  house  of  the  Le- 
gislature, the  members  shall  not  be  questioned  in  any  other 
place. 
§  13.  Any  bill  may  originate  in  either  house  of  the  Le- 


gislature, and  all  bills  passed  by  one  house  may  be  amend- 
ed by  the  other. 

^  14.  The  enacting  clause  of  all  bills  shall  be  "  The  peo- 
ple of  the  State  of  New  York,  represented  m  Senate  and 
Assembly,  do  enact  as  lollows,"  and  no  law  shall  be  en- 
acted except  by  bill. 

vj  15.  No  bill  shall  be  passed  unless  by  the  assent  of  a 
majority  of  all  the  members  elected  to  each  branch  of  the 
Legislature,  and  the  question  upon  tfee  final  passage  shall 
be  taken  immediately  upon  its  last  *4eding,  and  the  yeas 
and  nays  entered  on  the  journal. 

§  16.  No  private  or  local  bill,  which  may  be  passed  by 
the  Legislature,  shall  embrace  more  than  one  subject,  and 
that  shall  be  expressed  in  the  title. 

^  17.  The  legislature  may  confer  upon  the  boards  of  su- 
pervisors ol  the  several  counties  of  the  state,  such  further 
powers  of  local  legislation  and  administration,  as  they 
shall  from  time  to  time  prescribe. 

ARTICLE  IV. 

SECTION  1.  The  executive  power  shall  be  vested  in  a 
Governor,  who  shall  hold  his  office  tor  two  years;  a  Lieu- 
tenant Governor  shall  bo  chosen  at  the  same  time,  and  lor 
the  same  term. 

^  2.  No  person  except  a  citizen  of  the  United  States,  shall 
DC  eligible  to  the  office  of  Governor;  nor  shall  any  person 
be  eligible  to  that  office,  who  shall  not  have  attained  the 
age  of  thirty  years,  and  who  shall  not  have  been  five  years 
next  preceding  his  election,  a  resident  within  tliis  state. 

^  3.  The  Governor  and  Lieu*enant  Governor  shall  be 
lected  at  the  times  and  places  of  choosing  members  of  the 
Assembly.  The  persons  respectively  having  the  highest 
number  of  votes  for  Governor  and  Lieutenant  Governor, 
shall  be  elected;  but  in  case  two  or  more  shall  have  an 
equal  and  the  highest  number  of  votes  for  Governor,  or 
for  Lieutenant  Governor,  the  two  houses  of  the  Legisla- 
ture, at  its  next  annual  session,  shall,  forthwith,  by  joint 
ballot,  choose  one  of  the  said  persons  so  having  an  equal 
and  the  highest  number  of  votes  lor  Governor,  or  Lieu- 
tenant Governor. 

§  4.  The  Governor  shall  be  commander-in-chief  of  the 
military  and  naval  forces  of  the  state.  He  shall  have  pow- 
er to  convene  the  Legislature  (or  the  Senate  only)  on  ex- 
traordinary occasions.  He  shall  communicate  by  message 
to  the  Legislature  at  every  session,  the  condition  of  the 
State,  and  recommend  such  matters  to  them  as  he  shall 
judge  expedient.  He  shall  transact  all  necessary  business 
with  the  officers  of  government,  civil  and  military.  He 
shall  expedite  all  such  measures,  as  may  be  resolved  upon 
by  the  Legislature,  and  shall  take  care  that  the  laws  are 
faithfully  executed.  He  shall,  at  stated  times,  receive  for 
his  services,  a  compensation  to  be  established  by  law, 
which  shall  neither  be  increased  nor  diminished  alter  his 
election  and  during  his  continuance  in  office. 

^  5.  The  Governor  shall  have  the  power  to  grant  re- 
prives,  commutations  and  pardons  after  conviction,  for 
all  offences  except  treason  and  cases  of  impeachment,  up- 
on such  conditions,  and  with  such  restrictions  and  limita- 
tions, as  he  may  think  proper,  subject  to  such  regulation 
as  may  be  provided  by  law  relative  to  the  manner  of  ap- 
plying for  pardons .  Upon  conviction  for  treason,  he  shall 
liavR  power  to  suspend  the  execution  of  the  sentence,  un- 
til the  case  shall  be  reported  to  the  legislature  at  its  next 
meeting,  when  the  legislature  shall  either  pardon,  or  com- 
mute the  sentence,  direct  the  execution  of  the  sentence, 
or  grant  a  further  reprieve.  He  shall  annually  communi- 
cate to  the  legislature  each  case  of  reprieve,  commutation 
or  pardon  granted;  stating  the  name  of  the  convict,  the 
crime  of  which  he  was  convicted,  the  sentence  and  its 
date,  and  the  date  of  the  commutation,  pardon  or  reprieve. 
tj  6.  In  case  of  the  impeachment  of  the  Governor,  of  his 
removal  from  office,  death,  inability  to  discharge  th«  pow- 
ers and  duties  of  the  said  office,  resignation  or  absence 
from  the  State,  the  powers  and  duties  of  the  office  shall 
devolve  upon  the  Lieutenant  Governor  for  the  residue  of 
the  term,  or  until  the  disability  shall  cease.  But  when 
the  Governor  shall,  with  the  consent  of  the  legislature,  be 
out  of  the  State  in  time  of  war,  at  the  head  of  a  military 
force  thereof,  he  shall  continue  commander-in-chief  of  all 
the  military  force  of  the  State. 

§  7.  The  Lieutenant  Governor  shall  possess  the  same 
qualifications  of  eligibility  lor  office  as  the  Governor.  He 
shall  be  President  of  the  Senate,  but  shall  have  only  a  cast- 
ing vote  therein.  If  during  a  vacancy  of  the  office  ol  Go- 
vernor, the  Lieutenant  Governor  shall  be  impeached,  dis- 
placed, resign,  die,  or  become  incapable  of  performing  the 
duties  of  his  office,  or  be  absent  from  the  State,  the  President 
of  the  Senate  shall  act  as  Governor,  until  the  vacancy  be 
filled,  or  the  disability  shall  cease. 


10 


<5«.  Ine  Lieutenant  Governor  shall,  while  acting  as 
such,  receive  a  compensation  which  shall  be  fixed  by  law 
and  which  shall  not  be  increased  or  diminished  durin"-  his 
continuance  in  office. 

§  9.  Every  bill  which  shall  have  passed  the  Senate  an 
Assembly,  shall,  before  it  becomes  a  law,  be  presented  to 
the  Governor:  if  he  approve,  he  shall  sign  it;  but  if  not, 
he  shall  return  it  with  his  objections  to  that  house  ii 
which  it  shall  have  originated;  who  shall  enter  the  objec 
tions  at  large  on  their  journal,  and  proceed  to  reconsider 
it.  If  after  such  reconsideration,  two-thirds  of  the  mem- 
bers present  shall  agree  to  pass  the  bill,  it  shall  be  sent 
together  with  the  objections,  to  the  other  house,  by  which 
it  shall  likewise  be  reconsidered;  and  il  approved  by  two- 
thirds  of  all  the  members  present,  it  shall  become  a  law, 
notwithstanding  the  objections  of  the  Governor  But  in 
all  such  cases,  the  votes  of  both  houses  shall  be  deter- 
mined by  yeas  and  nays,  and  the  names  of  the  members 
voting  for  and  against  the  bill,  shall  be  entered  on  the 
journal  of  each  house  respectively.  If  any  bill  shall  not 
be  returned  by  the  Governor  within  ten  days  (Sundays 
excepted)  after  it  shall  have  been  presented  to  him,  the 
same  shall  be  a  law,  in  like  manner  as  if  he  had  signed  it. 
unless  the  legislature  shall,  by  their  adjournment,  prevent 
its  return;  in  which  case  it  shall  not  be  a  law. 

ARTICLE  V. 

SECTION  1.  The  Secretary  of  State,  ^Comptroller,  Trea- 
surer aid  Attorney  General  shall  be'chosen  at  a  general 
election,  and  shall  hold  their  ofiices  for  two  years.  Each 
of  the  officers  in  this  Article  named  (except  the  Speaker 
of  the  Assembly)  shall,  at  stated  times,  during  his  coniinu- 
ance  in  office,  receive  for  his  services,  a  compensation, 
which  shall  not  be  increased  or  diminished  during  the 
term  for  which  he  shall  have  been  elected  ;  nor  shall  he 
receive,  to  his  use,  any  fees  orperquisites  of  office,  or  oth- 
er  compensation. 

§2.  The  State  Engineer  and  Surveyor  shall  be  chosen 
at  a  general  election,  and  shall  hold"  his  office  for  twu 
years,  but  no  person  shall  be  elected  to  said  office  who  is 
not  a  practical  engineer. 

' 


culling  or  inspecting  any  merchandise,  produce,  manufac- 
ture or  commodity  whatever,  are  hereby abolished,  and  no 
such  office  shall  hereafter  be  created  by  law;  but  nothing 
m  this  section  contained,  shall  abrogate  any  office  created 
tor  the  purpose  of  protecting  the  public  health  or  the'nte- 
rests  ot  the  state  in  its  property,  revenue.tolls  or  purchases 
or  of  supplying  the  people  with  coirect  standards  oi 
weights  and  measures,  or  shall  prevent  the  creation  of  any 
office  lor  such  purposes  hereafter. 

ARTICLE  VI. 

SECTION  1  TheAssembly  shallhave  the  power  ofimpeach- 
ment  by  the  vote  of  the  majority  oi  all  the  members  elected 
1  he  court  lor  the  trial  ol  impeachments,  shall  be  composed 
of  the  president  of  the  Senate,  the  Senators  or  a  major  part 
of  them,  and  th*  judges  ofthe  court  of  appeals,  or  the  major 
pan,  01  them.  On  the  trial  of  an  impeachment  against  the 
Governor,  the  Lieut.  Governor  shajl  not  act  as  a  member 
01  the  court  No  judicial  officer  shall  exercise  his  office  al- 
ter  he  sauilhave  been  impeached,  until  be  shall  have  been 
acquitted.  Before  the  trial  of  an  impeachment,  the  members 
of  the  court  shall  take  an  oath  or  affirmation  truly  and  impar. 
tially  to  try  the  impeachment,  according:  to  evidence,  and 
no  person  shall  be  convicted  without  the  concurrence  oi 
two-thirds  of  the  members  present.  Judgment  in  cases  ot 
impeachment  shall  not  extend  further  than  10  removal 
from  office,  or  removal  from  office  and  disqualification  to 
hold  and  enjoy  any  office  of  honor,  trust  or  profit  under 
this  state;  but  the  party  impeached  shall  be  liable  to  in- 
dictment, and  punishment  according  to  law. 

§  2  There  shall  be  a  court  of  appeals,  composed  ofeight 
uilges  of  whom  four  shail  be  elected  by  the  electors  of  the 
state  for  eight  years,  and  four  selected  from  the  class  of  jus- 
*ices  of  the  supreme  court  having  the  shortest  time  to  serve, 
'revision  shull  be  made  by  law,  lor  designating  one  ofthe 
lumber  elected,  as  chief  judge,  and  lor  selecting  such  Jus- 
ices  ofthe  Supreme  Court,  Irom  time  to  time,  and  for  so 
lassifying  those  elected,  that  one  shall  be  elected  every 
econd  year. 

§  3.  There  shall  be  a  Supreme  Court  having  general  ju- 


§  3.  Three  Canal  Commissioners  shall  be  chosen  at  the  '  risdiction  in  law  and  equity. 
general  election  which  shall  be  held  next  after  the  adop-  i  §  4.  The  State  shall  be  divided  into  eight  judicial  dis- 
tion  of  this  Constitution,  one  of  whom  shall  hold  his  office  j  tricts,  of  which  the  city  of  New  York  shall  be  one;  the 
for  one  year,  one  for  two  years,  and  one  for  three  years.  !  others  to  be  bounded  by  county  lines;  and  to  be  compact 
The  Commissioners  of  the  Canal  Fund  shall  meet  at  the  j  aQd  equal  in  population  as  nearly  as  may  be.  There  shail 
Capitol  on  the  first  Monday  of  January,  next  after  such  !  be  four  justices  of  the  Supreme  Court  in  each  district,  and 


election,  and  determine  by  lot  which  of  said  Commission 
ers  shall  hold  his  office  for  one  year,  which  for  two,  an 
which  for  three  years;  and  there  shall  be  elected  annuall 
thereafter,  one  Canal  Commissioner,  who  shall  hold  h: 
office  for  three  years. 

^  4.  Three  Inspectors  of  State  Prisons  shall  be  elected  a 
the  general  election  which  shall  be  held  next  alter  th 
adoption  of  this  constitution,  one  of  whom  shall  hold  hi 
office  lor  one  year,  one  for  two  years  and  one  for  three 
years.  The  Governor,  Secretary  of  State  and  Comptrol 
ler,  shall  meet  at  the  Capitol  an  the  first  Monday  of Jauu 
ary  next  succeeding  such  election,  and  determine  by  lo 
which  of  said  inspectors  shall  hold  his  office  lor  one  year 
•which  for  two  and  which  for  three  years;  and  there  shaJ. 
be  elected  annually  thereafter  one  inspector  of  State  Pi  j 
sons,  who  shall  hold  his  office  lor  three  years;  said  inspec 
tors  shall  have  the  charge  and  superintendence  of  the  state 
prisons,  and  shall  appoint  all  the  officers  therein.  All 
cancies  in  the  office  of  such  inspector  shall  be  filled  by  the 
Governor  till  the  next  election. 

§5.  The  Lieutenant  Governor,  Speaker  of  the  Assembly, 
Secretary  of  State,  Comptroller,  Treasurer,  Attorney  Ge. 
neral,  and  State  Engineer  and  Surveyor,  shall  be  the  Com 
missioners  ofthe  Land  Office. 

The  Lieutenant  Governor,  Secretary  of  State,  Comptrol- 
ler, Treasurer  and  Attorney  General,  shall  be  the  Com- 
missioners ofthe  Canal  Fund. 

The  Canal  Board  shall  consist  of  the  Commissioners  of 
the  canal  fund,  the  state  engineer  and  surveyor,  and  the 
canal  commissioners. 

^  6.  The  powers  and  duties  ofthe  respective  boards,  and 
of  the  several  officers  in  this  article  mentioned,  shall  be 
such  as  now  are  or  hereafter  may  be  prescribed  by  law. 

§  7.  The  Treasurer  may  be  suspended  from  office  by  the 
Governor,  during  the  recess  of  the  legislature,  and  until 
thirty  days  after  the  commencement  ofthe  next  session  of 
the  legislature,  whenever  it  shail  appear  to  him  that  such 
Treasurer  has,  in  any  particular,  violated  his  duty.  The 
Governor  shall  appoint  a  competent  person  to  discharge 
the  duties  ol  the  office,  during  such  suspension  ofthe  Trea- 
surer, 
^  8.  AH  offices  for  the  weighing,  guaging,  measuring, 


as  many  more  in  the  district  composed  of  the  city  of  Ne\. 
York,  as  may  from  time  to  time  be  authorized  by  law,  but 
not  to  exceed  in  the  whole  such  number  in  proportion  to 
its  population,  as  shall  be  in  conformity  with  the  number 
of  such  judges  in  the  residue  of  the  state  in  proportion  to 
its  population.  They  shall  be  classified  so  that  one  of  the 
justices  of  each  district  shall  go  out  of  office  at  the  end  of 
every  two  years.  After  the  expiration  of  their  terms  under 
such  classification,  the  term  01  their  office  shall  be  eight 
years. 

—  ^  o.  The  legislature  shall  have  the  same  powers  to  alter 
and  regulate  the  jurisdiction  and  proceedings  in  law  and 
equity,  as  they  have  heretofore  possessed. 

§  6.  Provision  may  be  made  by  law  for  designating  from 
time  to  time  one  or  more  of  the  said  justices  who  is  not  a 

dge  of  the  Court  of  Appeals  to  preside  at  the  general 
terms  of  the  said  court  to  be  held  in  the  several  districts. 
Any  three  or  more  ofthe  said  justices,  of  whom  one  of  the 
said  justices  so  designated  shall  always  be  one,  may  hold 
such  general  terms.  And  any  one  or  more  of  the  justices 
may  hold  special  terms  and  Circuit  courts,  and  any  one  of 
them  may  preside  in  Courts  oV  Oyer  and  Terminer  in  any 
county. 

§7.  The  Judges  of  the  Court  of  Appeals  ar^d  Justices  of 
;he  Supreme  Court,  shall  severally  receive,  at  stated 
imes,  for  their  services,  a  compensation  to  be  establish- 
ed by  law;  which  sh;ill  not  be  increased,  or  diminished 
during  their  continuance  in  office. 

§  8.  They  shall  not  hold  any  other  office  or  public  trust. 
All  votes  for  either  of  them  lor  any  elective  office,  (ex- 
cept that  ot  Justice  ofthe  Supreme  Court,  or  Judge  ofthe 
'Jourt  oi  Appeals,)  given  by  the  legislature  or  the  people 
hall  be  void.  They  shall  not  exercise  any  power  of  ap 
lointment  to  public  office.  Any  male  citizen  of  the  age 
)f  twenty-one  years,  of  good  moral  character,  and  who 
>ossesses  the  requisite  qualifications  of  learning  and  abil- 
ty,  shall  be  entitled  to  admission  to  practice  ^in  all  the 
ourts  of  this  State. 

^  9.  The  classification  of  the  justices  of  the  Supreme 
"ourt;  the  times  and  place  of  holding  the  terms  of  the 
Jourt  of  Appeals,  and  of  the  general  and  special  terms  of 
he  Supreme  Court  within  the  several  districts,  and  the 


11 


<  ircuit  Courts  and  Courts  of  Oyer  and  Termiuer  \vithii 

•-oral  counties,  shall  be  provided  lor  by  law. 
§  10   The  testimony  in  equity  cases  shall  be  taken  in 

Banner  as  in  cases  at  law. 

§11.  Justices  of  the  Supreme  Court  and  Judges  of  the 
Court  of  Appeals,  may  be  removed  by  concurrent  resolu 
tion  of  both  houses  of  the  legislature,  if  two-thirds  of  al 
the  members  elected  to  the  Assembly,  and  a  majority  o 
all  the  members  elected  to  the  Senate  concur  therein.  Al 
judicial  officers,  except  those  mentioned  in  this  section, 
^cept  Justices  of  the  Peace,  and  Judges,  and  Justices 
of  inferior  courts  not  of  record,  may  be  removed  by  the 
Senate,  on  the  recommendation  of  the  Governor ;  but  no 
removal  shall  be  made  by  virtue  of  this  section,  unless  the 
thereof  be  enteied  on  the  journals,  nor  unless  the 
party  complained  of  shall  have  been  served  with  a  copy 
of  the  complaint  against  him,  and  shall  ifave  had  an  op- 
portunity of  being  heard  in  his  defence.  On  the  ques- 
tion of  removal,  the  ayes  and  noes  shall  be  entered  on  the 
journals. 

v}  1-2.  The  judges  of  the  Court  of  Appeals  shall  be  elect- 
ed by  the  electors  of  the  State,  arid  the  justices  ol  the  Su 
prerae  Court  by  the  electors  ot  the  several  judicial  dist 
ricts,  at  such  times  as  may  be  prescribed  by  law. 

§  13.  In  case  the  office  of  any  judge  of  the  Court  of  Ap- 
peals or  justice  of  the  Supreme  Court  shall  become  va- 
cant before  the  expiration  ol  the  regular  term  for  which  he 
looted,  the  vacancy  may  be  tilled  by  appointment  by 
the  Governor,  until  it  shall  be  supplied  at  the  next  general 
election  of  judges,  when  it  shall  be  failed  by  election  ior 
the  residue  of  the  unexpired  term. 

^  14  There  shall  be  elected  in  each  of  the  counties  of 
this  State,  except  the  city  and  county  of  New  York,  one 
county  judge,  who  shall  hold  his  office  for  four  years. 
He  shall  hold  the  county  court,  and  perform  the  duties  of 
the  office  of  Surrogate.  The  county  court  shall  have  such 
jurisdiction  in  cases  arising  injustices'  courts  and  in  spe- 
cial cases,  as  the  legislature  may  prescribe,  but  shall  have 
no  original  civil  jurisdiction  except  in  such  special  cases. 
The  county  judge,  with  two  justices  of  the  peace,  to  be 
designated  according  to  law,  may  hold  courts  of  sessions 
with  such  criminal  jurisdiction  as  the  Legislature  shall 
prescribe,  and  perform  such  other  duties  as  may  be  requir- 
ed by  law. 

The  county  judge  shall  receive  an  annual  salary,  to  be 
fixed  by  the  board  of  supervisors,  which  shall  be  neither 
increased  nor  diminished  during  his  continuance  in  office. 
The  justices  of  the  peace,  for  services  in  courts  of  sessions, 
shall  be  paid  a  per  diem  allowance  out  of  the  county  trea- 
sury. 

In  counties  having  a  population  exceeding  forty  thou- 
sand, the  Legislature  may  provide  for  the  election  of  a 
separate  officer  to  perform  the  duties  of  the  office  of  surro- 
gate. 

The  legislature  may  confer  equity  jurisdiction  iu  special 
casc.s  upon  the  county  juJge. 

Inferior  local  couits,  of  civil  and  criminal  jurisdiction 
may  be  established  by  the  legislature  in  cities;  and  surh 
courts,  except  for  the  cities  ol  New  York  and  Buffalo,  shall 
have  an  uniform  organization  aud  jurisdiction  in  such 
cities. 

fj  15.  The  legislature  may,  on  application  of  the  board 
of  supervisor.-,  provide  lor  the  election  of  local  officers, 
not  to  exceed  two  in   any  county,  to  discharge  the  duties 
of  county  judge  and  of  surrogate,  in  cases  oftheir  inability 
or  of  a  vacancy,  and  to  exercise  such  other  powers  in  spe- 
cial rases  as  may  be  provided  by  law 
•5)  16.  The   legislature  may  reorganize   the  judicial  dis. 
it  the  first  session  alter  the  return  of  every  enume- 
ration under  t'ois   Constitution,    in  the  manner  provided 
tprtn  the  fourth  section  of  this   article,  and  at  no  other 
time;  and  they  may,  at  such  session,  increase  or  diminish 
th"  number  of  districts,  but   such  increase  or  diminution 
•it  be  more  than  0110  district  at  any  one  time.    Each 
•  shall  have  four  Justices  of  the  Supreme  Court;  but 
no  diminution  of  the  districts  shall  have  the  effect  to  re- 
move a  judge  from  office. 

•lectors  of  the    several  towns  shall,  at  their 
annual  town  meeting,  and  in  such  manner  as  the  legisla- 
ture may  direct,  elect  justices  of  the  peace,   whose  term 
ot  office  .shall  be  four  years.    Incase  of  an  election  to  fill  a 
vacancy  occurring  before  the  expiration  of  a  full  term, 
they  shall  hold  for  the  residue   of  the  unexpired  term.— 
Their  number  and  classification  may  be  rtgulatedby  law. 
Justices  of  the  peace  and  judges  or  justices  of  inferior  I 
courts  not  of  record  and  their  clerks  may  be  removed  after  i 
due  notice  and  an  opportunity  of  b?ing  heard  in  their  de-  ! 
fence  by  such  county,  city  or  state  courts  as  may  lie  pre- 


scribed by  law,  lor  causes  to  be  assigned  in  the  order  of  re 
moval. 

§18  All  judicial  officers  of  cities  and  villages  and  all 
surh  judicial  officers  as  may  be  created  therein  by  law, 
shall  be  elected  at  such  times  and  in  such  manner  as  the 
legislature  inny  diiect. 

^  r.i.  The  clerks  of  the  several  counties  of  this  state 
shall  be  clerks  of  the  supreme  court,  with  such  powers 
ana  duties  as  shall  be  prescribed  by  law.  A  clerk  for  the 
court  of  appeals  to  be  ex-ollicio  clerk  of  the  Supreme 
court,  and  to  keep  his  office  at  the  .seat  of  government, 
shall  bt:  chosen  by  the  electors  of  the  state;  he  shall  hold 
his  office  for  three  years,  and  his  compensation  shall  be 
fixed  by  law  and  paid  out  of  the  public  treasury. 

^-20.  No  judicial  officer,  except  justices  of  the  peace, 
shall  receive,  to  his  own  use,  any  fees  or  perquisites  of 
office. 

§  21.  The  legislature  may  authorize  the  judgments,  de- 
crees and  decisions  of  any  local  inferior  court  of  record  of 
original  civil  jurisdiction,  established  in  a  city,  to  be  re- 
moved tor  review  directly  into  the  court  of  appeals. 

§  '2-2.  The  legislature  shall  provide  for  the  speedy  publi- 
cation of  all  statute  laws,  and  of  such  judicial  decisions 
as  it  may  deem  expedient.  And  all  laws  and  judicial 
decisions  shall  be  free  for  publication  by  any  person. 

^•23.  Tribunals  of  conciliation  may  be  established,  with 
such  powers  and  duties  as  may  be  prescribed  by  law;  but 
such  tribunals  shall  have  no  power  to  render  judgment  to 
be  obligatory  on  the  parties  except  they  voluntarily  sub- 
mit their  matters  in  difference  and  agree  to  abide  the  judg- 
ment, or  assent  thereto  in  the  presence  of  such  tribunal  in 
such  cases  as  shall  be  prescribed  by  law. 

^  -24.  The  legislature  at  its  first  session  after  the  adop- 
tion of  this  Constitution,  shall  provide  for  the  appoint 
ment  of  three  commissioners,  whose  duty  it  shall  be  to  re- 
vise, reform,  simplify  and  abridge  the  rules  and  practice, 
pleadings,  forms  and  proceedings  of  the  courts  of  record 
of  this  State,  arid  to  report  thereon  to  the  legislature,  sub- 
ject to  their  adoption  and  modification  from  time  to  time. 

§  26  The  Legislature  at  its  first  session  after  the  adop- 
tion of  this  Constitution,  shall  provide  for  the  organization 
of  the  court  of  appeals,  arid  for  transferring  to  it  the  busi- 
ness pending  in  the  court  for  the  correction  of  errors,  and 
'.'or  the  allowance  of  writs  of  error  and  appeals  to  the  court 
of  appeals,  from  the  judgments  and  decrees  of  the  present 
court  of  chancery  and  supreme  court,  and  of  the  courts 
hat  may  be  organized  under  this  constitution. 

sfS'  ARTICLE  VH. 

SKCTION  1.  After  paying  the  expenses  of  collection,  su- 
perintendence and  ordinary  repairs,  there  shall  be  appro- 
riatedand  setapartin  each  fiscal  year,  out  of  the  revenues 
of  the  State  canals,  commencing  on  the  first  day  of  June, 
S46,  the  sum  of  one  million  and  three  hundred  thousand 
dollars,  until  the  first  day  of  June  1855;  and  from  that  time 
he  sum  of  one  million  and  seven  hundred  thousand  dollars 
n  each  fiscal  year  as  a  sinking  fund  to  pay  the  interest  and 
redeem  the  principal  of  that  part  of  the  State  debt  called 
he  canal  debt,  as  it  existed  at  the  time  first  aforesaid,  and 
ncluding  three  hundred  thousand  dollars  then  to  be  bor 
•owed,  until  the  same  shall  be  wholly  paid;  and  the  prin 
:ipal  and  income  ot  the  said  sinking  f  und*shall  be  sacredly 
applied  to  that  purpose. 

^  -2.  Altjr  complying  with  the  provisions  of  the  first 
ection  of  this  article,  there  shall  be  appropriated  and  set 
ipart  out  of  the  surplus  revenues  of  the  State  canals,  in  each 
iscal  year,  commencing  on  the  first  day  ol  Juu  •,  It-Jo',  the 
sum  of  three  hundred  and  fifty  thousand  dollars,  until  the 
time  when  a  suili'-iont  sum  shall  have  been  appropriated 
ii!)  1  «et  apart,  underthosaidfirst  section,  to  pay  the  interest 
and  extinguish  the  entire  principal  of  the  canal  debt;  and  af- 
ter that  period,  then  the  sum  ot  one  million  and  five  hun- 
dred thousand  dollars  in  each  fisr;p '  yea  r,  ?-s  a  sinking  fund, 
to  pay  the  interest  and  redeem  the  principal  of  that  part  of 
the  State  debt  called  the  General  Fund  debt— including  the 
debt  for  loans  of  the  State  credit  to  rail  road  companies 
which  have  failed  to  pay  the  interest  thereon,  and  also  the 
contingent  dobt  on  State  stocks  loaned  to  incorporated 
companies  which  have  hitherto  paid  the  interest  thereon, 
whenever  and  as  far  as  any  part  thereof  may  become  a 
charge  on  the  Treasury  or  General  Fund,  until  the  same 
shall  be  wholly  paid  ;  and  the  principal  and  income  of  the 
said  la>t  mentio:  c<i  sinking  fund  shall  be  sacredly  applied 
to  the  purpose  ;:lon;-nid  ;  and  if  the  payment  ot  any  part 
of  the  monies  to  the  said  sinking  fund  shall  at  any  time 
be  deferred,  by  reason  of  the  priority  recognized  in  the 
lirst  section  of  Ibis  article,  the  sum  so  deferred,  with  quar- 
terly interest  thereon,  at  the  then  current  rate,  shall  be 


12 


paid  to  the  last  mentioned  sinking  fund,  as  soon  as  it  can 
be  done  consistently  with  theju»t  rights  of  the  creditors 
holding  said  canal  debt. 

^  3.  After  paying  the  said  expenses  of  superintendence 
and  repairs  of  the  canals,  and  the  sums  appropriated  by 
the  first  and  second  sections  of  this  Aiticle,  there  shall  bV 
paid  out  of  the  surplus  revenues  of  he  canals,  to  the 
Treasury  of  the  State,  on  or  before  the  thirtieth  day  of 
September,  in  each  year,  for  the  use  and  benefit  of  the 
General  Fund,  such  sum,  not  exceeding  $200,000,  as  may 
be  required  to  defray  the  necessary  expenses  of  the  State  ; 
and  the  remainder  of  the  revenues  of  the  said  canals  shall, 
in  each  fiscal  year,  be  applied,  in  such  manner  as  the 
Legislature  shall  direct,  to  the  completion  of  the  Erie 
canal  enlargement,  and  the  Genesee  Valley  and  Black 
River  canals,  until  the  said  canals  shall  be  completed. 

If  at  any  time  after  the  period  of  eight  years  from  the 
adoption  of  this  Constitution,  the  revenues  of  the  State,  un- 
appropriated by  this  article,  shall  not  be  sufficient  to  defray 
the  necessary  expenses  of  the  government,  without  con- 
tinuing or  laying  a  direct  tax,  the  Legislature  may,  at  its 
discretion,  supply  the  deficiency,  in  whole  or  in  part,  from 
the  surplus  revenues  of  the  canals,  after  complying  with 
the  provisions  of  the  first  two  sections  of  this  article,  for 
paying  the  interest  and  extinguishing  the  principal  of  the 
Canal  and  General  Fund  debt;  but  the  sum  thus  appropri- 
ated from  the  surplus  revenues  of  the  canals  shall  not  ex- 
ceed annually  $350,000,including  the  sum  of  $  200,000  provi- 
ded for  by  this  section  for  the  expenses  of  the  government, 
until  the  General  Fund  debt  shall  be  extinguished,  or  until 
the  Erie  canal  enlargement  and  Genesee  Valley  and  Black 
River  canals  shall  be  completed;  and  after  that  debt  shall 
be  paid,  or  the  said  canals  shall  be  completed,  then  the  sum 
of  $672,500  or  so  much  thereof  as  shall  be  necessary,  may 
be  annually  appropriated  to  defray  the  expenses  of  the 
government. 

§  4.  The  claims  of  the  State  against  any  incorporated 
company  to  pay  the  interest  and  redeem  the  principal  of 
the  stock  of  the  State  loaned  or  advanced  to  such  company 
shall  be  fairly  enforced,  and  not  released  or  compromised; 
and  the  moneys  arising  from  such  claims  shall  be  set  apart 
and  applied  as  part  of  the  sinking  fund  provided  in  the  se- 
cond section  of  this  article.  But  the  time  limited  lor  the 
fulfilment  of  any  condition  of  any  release  or  compromise 
heretofore  made  or  provided  for,  may  be  extended  by  law. 
§5.  If  the  sinking  funds,  or  either  of  them  provided  in 
this  article,  shall  prove  insufficient  to  enable  the  State,  on 
the  credit  of  such  lund,  to  procure  the  means  to  satisfy  the 
claims  of  the  creditors  o(  the  State  as  they  become  pa)  able, 
the  legislature  shall,  by  equitable  taxes,  so  increase  the  re- 
yenues  oi  the  said  funds  as  to  make  them,  respectively, 
sufficient  perfectly  to  preserve  the  public  iaith.  Every 
contribution  or  advance  to  the  canals  or  their  debt,  from 
any  source,  other  than  theii  din  ct  revenues,  shall,  with 
quarterly  interest,  at  the  rates  then  current,  be  repaid  into 
the  Treasury,  ior  the  use  oi  the  State,  out  of  the  canal  re- 
venues, as  soon  as  it  can  be  done  consistently  with  the  just 
rights  of  the  creditors  holding  the  said  canal  debt. 

§6.  The  Legislature  shall  not  sell,  lease,  or  otherwise 
dispose'of  any  of  the  canals  of  the  State;  but  they  shall 
remain  the  property  of  the  state  and  under  its  manage- 
ment, forever. 

^7.  The  Legislature  shall  never  sell  or  dispose  oi  the 
salt  springs,  belonging  to  this  State.  The  lands  contiguous 
thereto  and  wliich  may  be  necessary  and  convenient  for 
the  use  of  the  salt  springs,  may  be  sold  by  authority  of 
law  and  under  direction  of  the  commissioners  of  the  land 
office,  for  the  purpose  of  investing  the  moneys  arising 
therefrom  in  other  lands  alike  convenient;  but  by  such 
sale  and  purchase  the  aggregatequaiitityof  these  lands  shall 
not  be  diminished. 

§  8.  No  moneys  shall  ever  be  paid  out  of  the  Trea- 
sury of  this  State,  or  any  of  its  funds,  or  any  of  the 
funds  under  its  management,  except  in  pursuance  of  an 
appropriation  by  law;  nor  unless  such  payment  be  made 
within  two  years  next  after  the  passage  of  such  appropria- 
tion act;  and  every  such  law  making  a  new  appropriation, 
or  continuing  or  reviving  an  appropriation,  shall  distinctly 
specify  the  sum  appropriated,  and  the  object  to  which  it  is 
to  be  applied;  and  it  shall  not  be  sufficient  for  such  law  to 
refer  to  any  other  law  to  fix  such  sum. 

§  9.  The  credit  of  the  State  shall  not,  in  any  manner,  be 
given  or  loaned  to,  or  in  aid  of  any  individual,  association 
or  corporation. 

§  10.  The  State  may,  to  meet  casual  deficits  or  failures  in 
revenues,  or  for  expenses  not  provided  for,  contract  debts, 
but  such  debts,  direct  and  contingent,  singly  or  in  the  ag- 
gregate, shall  not,  at  any  time,  exceed  one  million  of  dol- 
lars; and  the  moneys  arising  from  the  loans  creating  such 


debts,  shall  be  applied  to  the  purpose  for  which  they  were 
obtained,  or  to  repay,  the  debt  ^o  contracted,  and  to  no 
other  purpose  whatever. 

(j  11.  In  addition  to  the  above  limited  power  to  contract 
debts,  the  State  may  contract  debts  to  repel  invasion,  sup- 
press insurrection,  or  defend  the  State  in  war;  but  the  mo- 
ney arising  from  the  contracting  of  such  debts  shall  be  ap- 
plied to  the  purpose  for  which  it  was  raised,  or  to  repay 
such  debts,  and  to  no  other  purpose  whatever. 

<j  12.  Except  the  debts  specified  in  the  tenth  and 
eleventh  sections  of  this  article,  no  debt  shall  be  hereaf- 
ter contracted  by  or  ou  behalf  ol  this  State,  unless  such 
debt  shall  be  authorized  by  a  law  for  some  single  work  or 
object  to  be  distinctly  spcciiiedtherein,  and  such  law  shall 
impose  and  provide  for  the  collection  of  a  direct  annual 
tax  to  pay,  and  sufficient  to  pay  the  interest  on  such  debt 
as  it  falls  due,  and  also  to  pay  and  discharge  the  principal 
of  such  debt  within  eighteen  years  from  the  time  of  the 
contracting  thereof. 

No  such  law  shall  take  effect  until  it  shall,  at  a  general 
election,  have  been  submitted  to  the  people,  and  have  re- 
ceived a  majority  of  all  the  votes  cast  for  and  against  it,  at 
such  election. 

On  the  final  passage  of  such  bill  in  either  house  of  the 
Legislature,  the  question  shall  be  taken  by  ayes  and  noes, 
to  be  duly  entered  on  the  journals  thereof,  and  shall  be: 
'Shall  this  bill  pass,  and  ought  the  same  to  receive  the 
sanction  of  the  people." 

The  Legislature  may  at  any  time,  after  the  approval  of 
such  law  by  the  people,  if  no  debt  shall  have  been 
contracted,  in  pursuance  thereof,  repeal  the  same  ; — 
and  may  at  any  time,  by  law,  forbid  the  contracting 
of  any  further  debt  or  liability  under  such  law;  but 
the  tax  imposed  by  such  act,  in  proportion  to  the  debt  and 
liability  which  may  have  been  contracted  in  pursuance  of 
such  law,  shall  remain  in  force  and  be  irrepealable,  and  be 
annually  collected,  until  the  proceeds  thereof  shall  have 
made  the  provision  herein  before  specified,  to  pay  and  dis- 
charge the  interest  and  principal  of  such  debt  and  liability. 

The  money  arising  from  any  loan  or  stock  creating  such 
debtor  liability,  shall  be  applied  to  the  work  or  object 
specified  in  the  act  authorising  such  debtor  liability,  or 
for  the  repayment  of  such  debt  or  liability,  and  lor  no 
other  purpose  whatever. 

No  such  law  shall  be  submitted  to  be  voted  on,  within 
three  months  alter  its  passage,  or  at  any  general  election, 
when  any  other  law,  or  any  bill,  or  any  amendment  to  the 
Constitution,  shall  be  submitted  to  be  voted  for  or  against 

§  13.  Every  law  which  imposes,  continues,  or  revives  a 
tax,  shall  distinctly  state  the  tax  and  the  object  to  which 
it  is  to  be  applied,  and  it  shall  not  be  sufficient  to  refer  to 
any  other  law  to  fix  such  tax  or  olject. 

§  14.  On  the  final  passage,  in  either  house  of  the  legisla- 
tuie,  of  every  act  which  imposes,  continues,  or  revives  a 
tax,  or  creates  a  debt  or  charge,  or  makes,  continues  or  re- 
vives any  appropriation  of  public  or  trust  money,  or  prop- 
erty;or  leleases,  discharges  or  commutes  any  claim  or  de. 
inand  of  the  State,  the  question  shall  be  taken  by  ayes  and 
noes,  which  shall  be  duly  entered  on  the  journals,  and 
three  fifths  of  all  the  members  elected  to  either  house,  shall 
in  all  such  case?,  be  necessary  to  constitute  a  quorum 
therein. 

ARTICLE  VIII. 

SKC.  1.  Corporations  may  be  formed  under  general  laws; 
but  shall  not  be  created  by  special  act.except  for  municipal 
purposes,  and  in  cases  where  in  the  judgement  of  the  Le- 
gisla'ure,  th«  objects  of  the  corporation  cannot  be  attaired 
under  general  laws.  All  general  laws  and  special  acts 
passed  pursuant  to  this  section,  may  be  altered  from  time 
to  time  or  repealed. 

§  2.  Dues  from  corporations  shall  be  secured  by  such 
individual  liability  of  the  corporators  and  other  means  as 
may  be  prescribed  by  lew. 

^~3.  The  term  corporations  as  used  in  this  article  shall 
be  construed  to  include  all  associations  and  joint-stock 
companies  having  any  of  the  powers  or  privileges  oi  cor- 
porations not  possessea  by  individuals  or  partnerships. — 
And  all  corporations  shall  have  the  right  to  sue  and  shall 
be  subject  to  be  sued  in  all  courts  in  like  cases  as  natural 
persons. 

^  4.  The  Legislature  shall  have  no  power  to  pass  any 
act  granting  any  special  charter  for  banking  purposes; 
put  corporations  or  associations  may  be  formed  for  such 
burposes  under  general  laws. 

§  5.  The  Legislature  shall  have  no  power  to  pass  any 
law  sanctioning  in  any  manner,  directly  or  indirectly,  the 
suspension  of  specie  payments,  by  any  person,  association 
or  corporation  issuing  bank  notes  of  any  description. 


13 


§  6.  The  legislature  shall  provide  by  law  for  the  regis- 
try of  all  bills  or' notes,  issued  or  put  in  circulation  as  mo- 
ney,  and  shall  require  ample  security  for  the  redemption 
of  the  same  in  specie. 

§7.  The  stockholders  in  every  corporation  and  joint- 
stock  association  for  banking  purposes,  issuing  bank  notes 
or  any  kind  of  paper  credits  to  circulate  as  money,  alter  the 
first  day  of  January  1850,  shall  be  individually  responsible 
to  the  amount  of  their  respective  share  or  shares  oi  stock 
in  any  such  corporation  or  asssciation,  for  all  its  debts  and 
liabilities  of  every  kind,  contracted  after  the  said  first  day  of 
January  1S50. 

§  8.  In  case  of  the  insolvency  of  any  bank  or  banking  as- 
sociation, the  bill-holders  thereof  shall  be  entitled  to  pre- 
ference in  payment,  over  all  other  creditors  of  such  bank 
or  association. 

^  9.  It  shall  be  the  duty  of  the  legislature  to  provide  for 
the  organization  of  cities  and  incorporated  villages,  and 
to  restrict  their  power  of  taxation,  assessment,  borrowing 
money,  contracting  debts  and  loaning  their  credit,  so  as 
to  prevent  abuses  in  assessments  and  in  contracting  debt 
by  such  municipal  corporations. 

ARTICLE  IX. 

SECTION  1.  The  capital  of  the  conynon  school  fund,  the 
capital  oi  the  literature  fun.l,  and  the  capital  of  the  United 
States  deposit  fund,  shall  be  respectively  preserved  invio- 
late. The  revenue  of  the  said  common  school  fund  shall  be 
applied  to  the  support  of  the  common  schools;  the  revenues 
of  the  sai<l  literature  fund  shall  be  applied  to  the  support 
of  academies  and  the  sum  of  $25,000  of  the  revenues  of  the 
U.  States  deposit  fund  shall  iach  year  be  appropriated  to 
and  made  part  of  the  capital  of  the  said  common  school 
fund. 

ARTICLE  X. 

SECTION  1.  Sheriffs,  clerks  of  counties,  including  the 
register  and  clerk  of  the  city  and  county  of  New  York,  co- 
roners and  district  atterneys,  shall  be  chosen  by  the  elec- 
tors of  the  respective  coumies,  once  in  every  three  years 
and  as  often  as  vacancies  shall  happen.  Sheriffs  shall  hold 
no  other  office,  and  be  ineligible  for  the  next  three  years 
after  the  termination  of  their  offices.  They  may  be  re- 
quired by  law,  to  renew  their  security,  from  time  to  time 
and  in  default  of  giving  such  new  security,  their  offices 
shall  be  deemed  vacant.  But  the  count3r  shall  never  be 
made  responsible  lor  the  acts  of  the  Sheriff. 

The  Governor  may  remove  any  officer  in  this  section 
mentioned,  with  in  the  term  for  which  he  shall  have,  been 
electt d;  giving  tr>  such  officer  a  copy  of  the  charges  against 
him,  and  an  oppoiumity  of  being  heard  in  his  defence. 

^  "2  All  county  ofdcers  whose  electionor  appointmentis 
not  provided  :'or  by  this  constitution,  shall  be  elected  by 
the  electors  of  the  respective  counties,  or  appointed  by  the 
boards  of  supervisors,  or  other  county  authorities,  as  the 
legislature  shall  direct.  All  city,  town  and  village  offi- 
cers whose  election  or  appointment  is  not  provided  for  by 
this  constitution,  shall  be  elected  by  the  electors  of  such 
cities,  towns  and  villages,  or  of  some  division  thereof,  or 
appointed  by  such  authorities  thereof  as  the  legislature 
shall  designate  for  that  purpose.  All  other  officers  whose 
election  or  appointment  is  not  provided  for  by  this  consti- 
tution, and  all  officers  whose  offices  may  hereafter  be  cre- 
ated by  law,  shall  be  elected  by  the  people  or  appointed, 
as  the  Legislature  may  direct. 

^3.  When  the  duration  of  any  office  is  not  provided  by 
*his  constitution,  it  may  be  declared  by  law,  and  if  not  so 
declared,  such  office  shall  be  held,  during  the  pleasure  of 
the  authority  making  the  appointment. 

\j  4.  The  time  of  electing  ail  officers  named  in  this  arti- 
cle shall  be  prescribed  by  law. 

^5  The  Legislature  shall  provide  for  filling  vacancies 
in  office,  and  in  case  of  elective  officers,  no  person  appoin- 
ted to  fill  a  vacancy  shall  hold  his  office  by  virtue  oi  such 
appointment  longer  than  the  commencement  of  the  politi- 
cal year  next  succeeding  the  first  annual  election  after  the 
happening  of  the  vacancy. 

()  6.  The  political  year  and  legislative  term,  shall  begin 
on  the  first  day  of  January ;  and  tlie  legislature  shall,  every 
year,  assemble  on  the  fir^t  Tuesday  in  January,  unless  a 
different  day  shall  be  appointed  by  law. 

<}  7.  Provision  shall  be  made  by  law  for  the  removal  for 
misconduct  or  malversation  in  office  of  all  officers  (except 
judicial)  whose  powers  and  duties  are  not  local  or  legisla- 
tive und  who  shall  be  elected  at  general  elections  arid  also 
for  supplying  vacancies  created  by  such  removal. 

Jj  8.  The  Legislature  may  declare  the  cases  in  which  any 
office  shall  be  deemed  vacant,  when  no  provision  is  made 
for  that  purpose  in  this  Constitution. 


ARTICLE  XI. 

SECTION!.  The  militia  of  this  State  shall  at  all  times 
hereafter  be  armed  and  disciplined,  and  in  readiness  for 
service;  but  all  such  inhabitants  of  this  State  of  any  reli- 
gious denomination  whatever,  as  from  scruples  of  con- 
science may  be  averse  to  bearing  arms,  shall  be  excused 
therefrom,  upon  such  conditions  as  shall  be  prescribed  by 
law. 

§  2  Militia  officers  shall  be  chosen,  or  appointed,  as  fol- 
lows: Captains,  subalterns,  and  non-commissioned  offi- 
cers, shall  be  chosen  by  the  written  votes  of  the  members 
of  their  respective  companies.  Field  officers  of  regiments 
and  separate  battalions,  by  the  written  votes  of  the  com- 
missioned officers  of  the  respective  regiments  and  sepa- 
rate battalions;  Brigadier  Generals  and  Brigade  Inspectors 
by  the  field  officers  of  their  respective  brigades.  Major 
Generals,  Brigadier  Generals  and  commanding  officers  of 
regiments  or  separate  battalions,  shall  appoint  the  staff  of- 
ficers to  their  respective  divisions,  brigades,  regiments  or 
separate  battalions. 

^  3.  The  Governor  shall  nominate,  and  with  the  consent 
of  the  Senate,  appoint  all  major  generals,  and  the  commis- 
sary general.  The  adjutant  general  and  other  chiefs  of 
staff  departments,  and  the  aids  de-camp  of  the  commander- 
in  chief  shall  be  appointed  by  the  Governor,  and  their 
commissions  shall  expire  with  the  time  for  which  the  Gov- 
ernor shall  have  been  elected.  The  commissary  general 
shall  hold  his  office  for  two  years.  He  shall  give  security 
for  the  faithful  execution  of  the  duties  of  his  office  in  such 
manner  and  amount  as  shall  be  prescribed  by  law. 

^  4.  The  Legislature  shall  by  law,  direct  the  time  and 
manner  of  electing  militia  officers,  and  of  certifying  their 
elections  to  the  Governor. 

§  5.  The  commissioned  officers  of  the  militia  shall  be 
commissioned  by  the  Governor;  and  no  commissioned  offi- 
cer shall  be  removed  from  office,  unless  by  the  Senate  on 
the  recommendation  of  the  Governor,  stating  the  grounds 
on  which  such  removal  is  recommended,  or  by  the  deci- 
sion of  a  court  martial,  pursuant  to  law.  The  present  offi- 
cers of  the  militia  shall  hold  their  commissions  subject  to 
removal,  as  before  provided. 

§  6.  In  case  the  mode  of  election  and  appointment  of  mi- 
litia officers  hereby  directed,  shall  not  be  found  conducive 
to  the  improvement  of  the  militia,  the  Legislature  may 
abolish  the  same,  and  provide  by  law  for  their  appoint- 
ment and  removal,  if  two-thirds  of  the  members  present 
in  each  house  shall  concur  therein. 

ARTICLE  XII. 

SECTION  1.  Members  of  the  legislature  and  all  officers, 
executive  and  judicial,  except  such  inferior  officers  as  may 
be  by  luw  exempted,  shall,  belore  they  enter  on  the  du- 
ties of  their  respective  oilice.-:,  take  and  subscribe  the  fol. 
lowing  oath  or  affirmation  : 

"I  do  solemnly  swear  (or  affirm,  as  the  case  may  be), 
that  I  will  support  the  Constitution  of  the  United  States, 
and  the  Constitution  of  the  State  of  New  York;  and  that  I 
will  faithfully  discharge  the  duties  of accord- 
ing to  the  best  of  my  ability." 

And  no  other  oath,  declaration  or  test  shall  be  required 
as  a  qualification  tor  any  office  or  public  trust. 

ARTICLE  XIII. 

SECTION  1 .  Any  amendment  or  amendments  to  this  Con- 
stitution may  be  proposed  in  the  Senate  and  Assembly;  and 
it  the  same  shall  be.  agreed  to  by  a  majority  of  the  members 
elected  to  each  of  the  two  houses,  such  proposed  amend- 
ment or  amendments  «hall  be  entered  on  their  journals 
with  the  yeas  and  nays  taken  thereon,  and  referred  to  the 
legislature  to  be  choswn  at  the  next  general  election  of  Se- 
nators, and  shall  be  published  lor  three  months  previous  to 
the  time  of  making  such  choice,  and  if  in  the  legislatu.e  so 
next  chosen,  as  aforesaid,  such  pn  posed  amendment  or 
amendments,  thall  be  agreed  to,  by  a  majority  of  all  the 
members  elected  to  each  house,  then  it  shall  be  the  duty 
of  the  legislature  to  submit  such  proposed  amendment  or 
amendments  to  the  people  ,iu  sucli  manner  and  at  such  time 
as  the  legislature  shall  prescribe;  andif  the  people  shall 
approve  and  ratify  such  amendment  or  amendments,  by  a 
majority  of  the  electors  qualified  to  vote  for  members  of  the 
legislature,  voting  thereon,  such  amendment  or  amend- 
ments shall  become  part  of  the  Constitution. 

§2.  At  the  general  election  to  be  held  in  the  year  eigh- 
teen hundred  and  sixty. six,  and  in  each  twentieth  year 
thereafter,  and  also  at  such  time  as  the  legislature  may  by 
law  provide,  the  question  "  Shall  there  be  aConventionto 
revise  the  Constitution,  and  amend  the  same?"  shall  be  de- 
cided by  the  electors  qualified  to  vote  for  members  of  the 


14 


legislature;  arid  in  case  a  majority  of  theelectors  so  qual- 
ified, voting  at  such  election,  shall  decide  in  favor  of  a  Con- 
venliun  for  such  purpose,  the  legislature  at  its  next  ses- 
sion, shall  provide  by  law  for  the  election  of  delegates  to 
*uch  Convention. 

ARTICLE  XIV. 

SECTION  1.  The  first  election  of  senators  andmembers  of 
Assembly,  pursuant  to  the  provisions  ot  this  Constitution, 
shall  be  held  on  the  Tuesday  succeeding  the  first  Monday 
ot  November,  one  thousand  eight  hundred  and  forty-seven. 
The  senators  and  members  of  Assembly  who  may  be  in 
office  on  the  lirst  day  of  January,  one  thousand  eight  hun- 
dred and  forty-seven,  shall  hold  their  offices  until  and  in 
eluding  the  thirty-first  day  of  December  following,  and  no 
longer. 

§  -2.  The  first  election  of  Governor  and  Lieutenant  Gov- 
ernor under  this  Constitution,  shall  be  held  on  the  Tuesday 
succeeding  the  first  Monda\  of  November,  1848;  and  the 
Governor  and  Lieutenant  Governor  in  office  when  this 
Constitution  shall  take  effect,  shall  hold  their  respective 
offices  until  and  including  the  31st  day  of  December  of  that 
year. 

§  3.  The  Secretary  of  State,  Comptroller,  Treasurer,  At- 
torney General,  District  Attorney,  Surveyor  General,  Ca' 
nal  Commissioners,  Inspectors  of  State  Prisons,  in  office 
when  this  Constitution  shall  take  effect,  shall  hold  their 
respective  offices  until  and  including  the  31st  day  of  De- 
cember, 1847,  and  no  longer. 

§4.  The  first  election  of  judges  and  clerk  of  the  Court 
of  Appeals,  justices  of  the  Supreme  Court,  and  county 
judges,  shall  take  place  at  such  time  between  the  first 
Tuesday  of  April  and  the  second  Tuesday  of  June,  1847, 
as  may  be  prescribed  by  law.  The  said  courts  shall  re- 
spectively enter  upon  their  duties,  on  the  first  Monday  of 
July,  next  thereafter;  but  the  term  of  office  of  said  judges, 
clerk  and  justices  as  declared  by  this  Constitution,  shall 
be  deemed  to  commence  on  the  first  day  of  January,  1848 

§  6.  On  the  first  Monday  of  July,  1847,  jurisdiction  of  all 
suits  and  proceedings  then  pending  in  the  present  Supreme 
Court  ant  Court  of  Chancery,  and  all  suits  and  proceed- 
ings originally  commenced  and  then  pending  in  any  court 
of  common  pleas,  (except  in  the  city  and  county  of  New. 
York,)  shall  become  vested  in  the  Supreme  Court  hereby 
established.  Proceedings  pending  in  courts  of  common 
pleas  and  insults  oiiginally  commenced  in  justices'  courts, 
shall  be  transferred  to  the  county  courts  provided  for  in 
this  Constitution,  in  such  manner  and  form,  and  under 
such  regulations,  as  shall  be  provided  by  law.  The  courts 
of  Oyer  and  Terminer  hereby  established,  shall  in  their 
respective  counties  have  jurisdiction  on  and  after  the  day 
last  mentioned,  of  all  indictments  and  proceedings  then 
pending  in  the  present  courts  of  Oyer  and  Terminer;  and 
also  of  all  indictmenis  and  proceedings  then  pending  in  the 
present  courts  of  General  Sessions  of  the  Peace,  except  in 
the  city  of  New-York,  and  except  in  cases  of  which  the 
Courts  of  Sessions  hereby  established,  may  lawfully  take 
cognizance;  and  of  such  indictments  and  proceeding  the 
Courts  of  Sessions  hereby  established,  shall  have  jurisdic- 
tion on  and  after  the  day  last  mentioned. 

§  6.  The  Chancellor  and  the  present  Supreme  Court 
shall,respectively,have  power  to  hear  and  determine  anyof 
such  suits  and  proceedings  ready  on  the  first  Monday 
of  July,  1847,  forbearing  or  decision,  and  shailfor  their  Cer- 
vices therein,  be  entitled  to  their  present  rates  of  compen- 
sation until  the  first  day  of  July,  1848,  or  until  all  such 
suits  and  proceedings  shall  be  sooner  heard  and  de- 
termined. Masters  in  chancery  may  continue  to  ex- 
ercise the  functions  of  their  office  in  the  court  of  chance- 
ry, so  long  as  the  Chancellor  shall  continue  to  exercise 
the  functions  of  his  office  under  the  provisions  of  this  con- 
stitution. 

And  the  Supreme  Court  hereby  established,  shall  also 
have  power  to  hear  and  determine  such  of  said  suits  and 
proceedings  as  may  be  prescribed  by  law. 

k  7.  In  case  any  vacancy  shall  occur  in  the  office  of  chan- 
cellor or  justice  of  the  present  Supreme  Court,  previously 
to  the  1st  day  of  July,  1848,  the  Governor  may  nominate, 
and  by  and  with  the"  ad  vice  and  consent  of  the  Senate,  ap- 
point a  proper  person  to  fill  such  vacancy.  Any  judge  of 
the  Court  of  Appeals  or  justice  of  the  Supreme  Court,  elec- 
ted under  this  Constitution,  may  receive  and  hold  such 
appointment. 

§  8.  The  offices  of  Chancellor,  Justice  of  the  existing 
Supreme  Court,  Circuit  Judge,  Vice  Chancellor,  Assist- 
ant Vice  Chancellor,  Judge  of  the  existing  county  courts 
of  each  county,  Supreme  Court  Commissioner,  master  in 
chancery,  examiner  in  chancery,  and  surrogate  (except 


as  herein  otherwise  provided),-^re  abolished  from  and  af- 
ter the  1st  Monday,  July,  1H47. 

^  9.  The  Chancellor,  the  justices  of  the  present  Supremo 
Court,  and  the  circuit  judges,  are  hereby  declared  to  be  se- 
verally eligible  to  any  office  at  the  first  election  under  this 
Constitution. 

tjlO.  Sheriffs,  and  clerks  of  counties  (including  the  reg- 
ister and  clerk  of  the  city  and  county  of  New-York) ,  and 
justices  of  the  peace,  and  coroners,  in  office  when  this 
Constitution  shall  take  effect,  shall  hold  their  respective 
offices  until  the  expiration  of  the  term  for  which  they  were 
respectively  elected 

§  11.  Judicial  officers  in  office  when  this  Constitution 
shall  take  effect,  may  continue  to  receive  such  fees  and 
perquisites  of  office  as  are  now  authorized  by  law,  until 
the  first  day  of  July,  1847,  notwithstanding  the  provisions 
of  the  20th  section  of  the  sixth  article  of  this  Constitution. 
§  12.  All  local  courts  established  in  any  city  or  village, 
including  the  Superior  Court,  Common  Pleas,  Sessions, 
Surrogates'  Courts  of  the  city  and  county  of  New-York, 
shall  remain,  until  otherwise  directed  by  the  legislature, 
with  their  present  powers  and  jurisdiction  ;  and  the  judges 
of  such  courts,  and  any  clerks  thereof  in  office  on  the  first 
day  of  January,  1847,  shall  continue  in  office  until  the  ex- 
piration of  their  terms  of  office,  or  until  the  legislature  shall 
otherwise  direct. 

§13.  This  Constitution  shall  be  in  force  from  and  includ- 
ing the  first  day  of  January,  1847,except  as  is  herein  other- 
wise provided. 

Done  in  Convention,  at  the  Capitol,  in  the  City  of  Al- 
bany, the  ninth  day  of  October,  in  the  year  one  thou- 
sand eight  hundred  and  forty-six,  and  of  the  Indepen- 
dence of  the  United  States  of  America  the  seventy- 
first. 

In  witness  whereof,  we  have  hereunto  subscribed  our 
names.  JOHN  TRACY,  President, 

And  delegate  from  the  county  of  Chenango. 
JAMES  F.  STARBUCK,  } 
FRANCIS  SEGER,          >  Secretaries. 
HENRY  W.  STRONG,   ) 
STATF.  OF  NEW- YORK,  ) 
SECRETARY'S  Office.  $ 

I  have   compared  the  preceding  with  the    original  en- 
grossed  Constitution  deposited  in   this  office  on  the  ninth 
day  of  October,  1846,  and  Do  Certify,  that  the   same  is  a 
correct  transcript  therefrom,  and  of  the  whole  of  said  ori. 
nal* 

Given  under  my  hand  and  seal  of  office,  at  the 
city  of  Albany,  the  tenth  day  of  October,  1,1  the 
ye;irofour  Lord,  one  thousand  eight  hundred 
and  forty  six.  N.  S.  BLNTON, 

Secretary  of  State. 

The  names  of  the  following  Delegates  are  appended  to 
the  said  engrossed  Constitution: — 


ROBEB/T  CAMPBELL,  jr., 
GEORGE  C.  CLYDE, 
CHARLES  P.  KIRKLAND, 
SAMUEL  RICHMOND, 
FEDERAL  DANA, 
JOHN  MILLER, 
ROBERT  C.  NICHOLAS, 
ORNON  ARCHER, 
PETER  YAWGER, 
MOSES  TAGGART, 
STEPHEN  ALLEN, 
JOHN  T.  HARRISON, 
DANIEL  JOHN  SHAW, 
JOHN  J.WOOD, 
JULIUS  CANDEE, 
B.  S.  BRUNDAGE, 
GEO.  W.  PATTERSON, 
WM.  B.  WRIGHT, 
ABSALOM  BULL, 
BENJ.  F.  BRUCE, 
W.  MAXWELL, 
JOHN  YOUNGS, 
JOHN  L.  STEPHENS, 
CAMPBELL  P.  WHITE, 
W.  G.  ANGEL, 
HARRY  BACKUS, 
GEO.  S.  MA.NN, 
CYRUS  H.  KINGSLEY, 
ENOCH  STRONG, 
ROBT.  H.  MORRIS, 
DAVID  MUNRO, 
RUSSEL  PARISH, 
AARON  SALISBURY, 


GOUV.  KEMBLE, 
SAMUEL  J.  T1LDEN, 
ELIJAH  SPENCER, 
ELIJAH  RHOADES, 
HEN.  C   MURPHY, 
JOHN  NELLIS, 
ELISHA  W.  SHELDON, 
HENRY  NICOLL, 
W.H.V'N  S(  HOONHOVEN. 
E.  M.  McNEIL, 
ARPHAXED  LOOMIS, 
CHARLES  H.  RUGGLES, 
JOHN  K.  PORTER, 
J.  L.  RIKER, 
JAMES  TALLMADGE, 
WILLIAM  TAYLOR, 
GEORGE  W.  TUTH1LL, 
AB  R  A  M  W I TB  E  C  K , 
PERRY  WARREN, 
L.  B  SHEPAE1), 
TUNIS  G.  BERGEN, 
ALBERT  L.  BAKER, 
ANSEL  BASCOM, 
JOHN  BOWDI8H, 
IIERVEY  BRAYTON, 
ISAAC  BURR, 
JAMES  M.  COOK, 
B.  F.  CORNELL, 
GEO.  A.  S.  CROOKER, 
LEWIS  CUDDEBACK, 
RT.  DORLON, 
GEO.  G.  GRAHAM, 
A.  S.  GREENE, 


15 


C.  SWACKHAMER, 
HORATIO  N.  TAFT, 
SOLOMON  TOWNSEND, 
WM.  C.  BOUCK, 
FREDERICK  F.  BACKUS, 
JOHN  li.  HUNT. 

WM.  S  (JON ELY, 
ALLEN  AYRAULT, 
JOHN  J.  TAYLOR, 
JONAH  SANFORD, 
JNO.  LESLIE  RUSSEL, 

D.  R.  FLOYD  JONES, 
C.  C.  CAMBRELENG, 
G.  T.  CHAMBERLAIN, 
ANDREW    \V.   YOI..NG, 
A.    \V  .  DAN  FORTH, 
EDWARD  DOUD, 
I'KTEK  K.  DUB01S, 
JOSEPH  R.  FLANDERS, 
JA.MKa  C.  FORSVTH, 
JOHN  GEBHARD.  Jr. 
THOMAS  B.  SEARS, 
DAVID  B.  ST.  JOHN, 


IRA  HARRIS, 
ORRIS  HART, 
ALONZO  HAWLEY, 
MR  HAEL  HOFFMAN, 
WILLIAM  HOTCHK1SS, 
ABEL  HUNT1NGTON, 
EDWARD  HUNT1NGTON 
J.  L.  HUTCH1NSON, 
JOHN  HYDE, 
PETER  SHAVER, 
DAVID    S.  WATERBURY 
WILLIAM  KERNAN, 
CH.  O'CONOR, 
RICH.  P.  MARVIN, 
H.  K.  WILLARD, 
BISHOP  PERKINS, 
JAMES  POWERS, 
BENJAMIN  STANTON, 
L.  STETSON, 
JOHN  W.  BROWN, 
AARON  WARD, 
ALVAH  WORDEN, 
AMOS  WRIGHT, 


SECRETARY'S  OFFICE.  I 

ALBANY,  October  12th,  1846.  $ 

Instructions  and  forms  prepared  by  the  Secretary 
State,  in  obedience  to  the  following  resolution,  adopted  bj 
the  Convention  to  revise  the  constitution,  and  of  the  ac 
recommending  a  convention  of  the  people  of  this  state:— 
Resolved,  That  it  shall  be  the  duty  of  the  Secretary  o 
State  to  cause  the  constitution,  as  proposed  to  be  amend 
ed,  together  with  the  forms  of  the  ballots,  to  be  publishe 
at  least  twice,  prior  to  the  election,  in  each  of  the  publi 
newspapers  published  in  this  state,  provided  the  same  shal 
be  published  for  such  reasonable  compensation  as  shall  be 
fixed  by  the  Secretary  of  State  and  Comptroller,  but  no  ne 
gleet  to  publish  the  s'ame  in  any  of  the  papers  of  this  stati 
shall  impair  the  validity  of  the  notice. 

Form  of  the  ballot  to  be  used  by  those  electors  who  vote 
for  the  constitution,  as  proposed  to  be  amended: 

CONSTITUTION. 

If  Amended  Constitution,  Yes." 
Form  of  the  ballot  to  be  used  by  those  electors  who  vote 
against  the  constitution,  as  proposed  to  be  amended: 

CONSTITUTION. 

"  Amended   Constitution,  No." 

An  amendment  in  relation  to  the  equal  suffrage  of  color 
ed  persons,  separate  from  those  incorporated  m  the  en. 
grossed  Constitution,  is  also  submitted  to  be  voted  upon  at 
tlie  same  time,  with  a  separate  ballot,  which  is  to  be  de- 
posited in  3  .separate  box. 

Form  of  tae  hallo  t  to  be  used  by  those  electors  who  vote 
for  this  proposed  amendment: 

CONSTITUTION:  SUFFRAGE. 
"  Equal  Suffrage  to  Colored  Persons,  Yes." 
Form  of  the  ballot  to  be  used  by  those  electors  who  vote 
against  this  proposed  amendment: 

CONSTITUTION:  SUFFRAGE. 

"  Equal  Suffrage  to  Colored  Persons,  No." 

Form  of  the  poll  lists  to  be  kept  by  the  clerks  of  election: 


Names  of 

State  Box.      Constitutional     Constitutional 

Voters. 

Box.                     Box. 

Amended      >    Suffrage  to 

Constitution. 

colored    per- 

sons: 

Separate  A- 

mendmtnt. 

No.  1. 
CERTIFICATE  OF  CANVASS. 

We,  the  board  of  inspectors  of  election  in  and  for  the 

election  district  of  the  town  of  (or  of  the 

ward  of  the  city  of  ,)  in   the   county   of  ,  do 

certify  that  the  following  is  a  correct  statement  of  the 
votes  taken  at  the  general  election  held  in  said  district  on 
the  day  of  November,  one  thousand  eight  hundred  and 
forty-six,  pursuant  to  the  act  entitled  "An  act  recommend- 
ing a  convention  of  the  people  of  this  state,"  passed  May 
13th,  1845,  chapter '26-2,  to  wit : 

That  the  whole  number  of  ballots  received  at  the  said 
election  having  thereon  the  words  "  amended  constitution 
Yes,"  was 

And  that  the  whole  number  of  ballots  also   received  at 


the  said  election  having  thereon  the  words  "  amended 
constitution,  No,"  was 

That  the  whole  number  of  ballots  received  at  the  same 
election  having  thereon  the  words  "  equal  suffrage  to  co 
lored  persons  7  Yes,"  was 

And  that  the  whole  number  of  ballots  received  at  the 
said  election  having  thereon  the  words  "  equal  suffrage  to 
colored  persons  1  No,"  was 

We  do  hereby  certify  that  the  above  statement  is  cor- 
rect in  all  respects.  Dated  at  ,  November  A  D. 
1846. 

The  number  of  ballots  or  votes  must  be  written  at  full 
length,  and  must  not  be  put  down  in  figures  or  abbrevi- 
ated. 

No.  2. 
COUNT  ST  CANVASS. 

Statement  in  relation  to  the  amended  constitution  and 
the  amendment  separately  submitted  relating  to  equal  suf- 
frage to  colored  persons  :  — 

The  board  of  county  canvassers  of  the  county  of  , 

having  met  at  the  office  of  the  clerk  of  said  county,  on  the 
—  of  November,  1S46,  to  canvass  and  estimate  the  votes 
given  in  the  several  election  distiicts  in  said  county  at  the 
general  election  held  on  the  —  day  of  November.iu  the  year 
aforesaid,  and  having  received  the  statements  of  the  votes 
taken  in  each  election  district  of  the  said  county  in  pur- 
suance of  the  act  chapter  262,  entitled  an  act  recommend- 
ing a  Convention  of  the  people  of  this  state,"  passed  May 
13th,  1845,  do  certify  that  the  whole  number  of  votes  or 
ballots  given  at  the  said  election  and  having  thereon  the 
words  "amended  Constitution,  Yes,"  was 

And  that  the  w:hole  number  of  votes  or  ballots  given  at 
the  s'ame  time,  and  having  thereon  the  words  "  amended 
Constitution,  No,"  was 

That  the  whole  number  of  votes  or  ballots  given  at  the 
same  election  and  having  thereon  the  words,  "  equal 
suffrage  to  colored  persons'?  \  es"  was 

Ana  the  whole  number  of  votes  or  ballots  given  as  afore- 
said and  having  thereon  the  words,  "  equal  suffrage  to  col- 
ored persons'?  No"  was 

In  witness  whereoi  we  have  caused  this  statement  to  be 
Httcsted  according  to  law  by  the  signatures  of  our  Chair- 

an  and  Secretary.  A.  B.,  Chairman. 

C.  D  ,  County  Clerk  and  Secretary. 

Care  must  betaken  to  iiii  the  blanks  with  words  writ- 
ten out  at  full  length  and  not  with  figures. 

If  there  were  not  any  votas  given  for  or  against  the 
''  amended  Constitution"  or  lor  or  againit  the  provision  re- 
lating to  "  equal  suffrage  to  colored  persons, "  the  fact 
should  be  stated,  and  usiug  the  words  "  not  any"  in  the 
blank  alter  the  printed  word  '<  was"  will  be  sufficient. 

The  Secretary  of  State  and  Comptroller  have  fixed  the 
compensation  to  be  paid  to  the  publisher  ol  any  newspa- 
per, in  this  state,  who  may  p  ibJish  the  foregoing  amend- 
ed  constitution  twice  in  two  consecutive  weeks  with 
hese  instructions  and  forms,  at  twenty-five  dollars,  which 
sum  will  be  paid  at  the  treasury  on  producing  due  proof 
*o  the  Comptroller  of  the  said  publication. 

Those  who  desire  to  publish  the  said  constitution  and 
nstructions  upon  the  foregoing  terms  must  copy  thein- 
itrumunt  published  in  the  Albany  Argus  of  this  date,  as  it 
s  not  intended  to  send  from  this  office  a  circular  contain- 
ng  the  constitution  and  these  instructions  addressed  to  the 
everal  newspaper  publishers. 

N.  S.  BENTON,  Secretary  of  State. 
N  CONVENTION  OF   THE  PEOPLE  OF  THE  STATE   OF  NEW. 

YORK,  assembled  at  Albany,  on  the  first  day  of  June,  in 

the  year  of  our  Lord,  one  thousand  eight  hundred  and 
forty-six,  pursuant  to  an  act  of  the  kgislature  of  said 
state,  entitled  '•  An  act  recommending  a  Convention  of 
the  People  of  this  State,"  passed  Aiay  f3,  1845. 
Resolved.  That  in  the  judgment  of  this  convention,  the 
everal  amendments  to  the  constitution  agreed  to  by  this 
ony  miorij  cannot  be  prepared  so  as  to  be  voted  upon  se- 
arately. 

Resoived,  That  the  form  of  the  ballots,  to  be  given  for 
lie  adoption  or  rejection  of  the  said  amendments  shall  be 
s  follows;  on  such  ballots  as  are  given  in  favor  of  the 
doption  of  the  said  amendments  shall  be  written  or  print- 
d  or  partly  written  and  partly  printed,  the  words— 
'Jlmended  Constitution,  yes;"  and  on  such  ballots  as  are 
iveii  against  the  adoption  of  said  amendments  shall  bo 
n-itten  or  printed  or  partly  written  or  partly  printed  -the 
rords  '•  intended  Constitution,No,"  and  the  word  "  COH 
Utution"  shall  be  written  or  printed  or  partly  written  and 
artly  printed  upon  the  said  ballots  in  such  manner  as  that 
/hen  such  ballots  are  folded  it  shall  appear  upon  the  out 
:de  thereof. 


16 


Resolved,  That  10,000  copies  of  these  resolutions,with  the 
said  amendments,  with  the  Address  of  the  Convention  and 
also  the  present  constitution  subjoined,  be  printed;  and 
that  the  Comptroller  cause  fifty  copies  thereof  to  be  for- 
warded without  delay,  and  at  the  expense  of  the  slate,  to 
each  member  of  this  convention,  and  that  the  remainder  in 
like  manner  be  transmitted  by  him  to  the  several  county 
clerks,  whose  duty  it  shall  be  to  distribute  the  same  among 
the  different  towns  and  wards  in  this  state;  also  that  said 
amendments  be  published  in  the  State  paper  weekly,  un- 
til the  next  election. 

Resolved,  That  the  Secretary  of  State  forward  immedi- 
ately, to  the  several  county  clerks  and  sheriffs  of  this  state, 
a  copy  of  the  foregoing  first  and  second  resolutions.— 
And  the  said  clerks  and  sheriffs  shall  cause  the  said  reso- 
lutions to  be  published  once  in  each  week  in  each  news 
paper  published  in  their  respective  counties,  until  the  next 
election,  and  also  a  notice  that  the  said  amendments  will 
be  voted  upon  at  the  next  general  election  in  the  several 
election  districts  ot  the  state. 

Resolved,  That  it  shall  be  the  duty  of  the  Secretary  of 
State  to  cause  the  constitution  as  proposed  to  be  amended, 
together  with  the  forms  of  the  ballots,  to  be  published  at 
least  twice  prior  to  the  election  in  each  of  the  public  news- 
papers published  in  this  state,  provided  the  same  shall  be 
published  for  such  reasonable  compensation  as  shall  be 
fixed  by  the  Secretary  of  State  and  Comptroller;  but  no 
neglect  to  publish  the  same  in  any  of  the  papers  of  this 
state  shall  impair  the  validity  of  the  notice. 

Resolved,  That  the  Secretary  of  State  examine  and 
compare  the  printed  copies  of  the  constitution  order- 
ed by  this  convention,  with  the  engrossed  copy,  this  day 
filed  in  the  Secretary's  office,  and  certify  the  same  offi- 
cially. 

Resolved,  That  at  the  next  general  election,  and  at  the 
same  time  when  the  votes  of  the  electors  shall  be  taken 
for  tne  adoption  or  rejection  of  the  amended  Constitution, 
the  additional  amendment  in  the  words  following: 

"  ^  .  Colored  male  citizens,  possessing  the  qualifica- 
tions required  by  the  first  section  of  the  second  article  oi 
the  Constitution,  other  than  the  property  qualification, 
shall  have  the  right  to  vote  for  all  officers  that  now  are,  or 
hereafter  may  be,  elective  by  the  people  after  the  first  day 
of  January, 1847," 

Shall  be  separately  submitted  to  the  electors  of  this  State 
for  adoption,  or  rejection,  in  form  following,  to  wit: 

A  separate  ballot  may  be  given  by  every  person,  hav- 
ing the  right  to  vote  for  the  amended  Constitution,  to  be 
deposited  in  a  separate  box. 

Upon  the  ballots  given  for  the  adoption  of  the  said  sepa- 
rate amendment,  shall  be  written  or  printed,  or  partly 
written  and  partly  printed,  the  words,  «•  Equal  suffrage  to 
colored  persons?—  Yes." 

And  upon  the  ballots  given  against  the  adoption  of  tne 
said  separate  amendment,  in  like  manner  the  words, 

"  Equal  suffrage  to  colored  persons  ? — No." 

And  on  such  ballots  shall  be  written  or  printed,  or  partly 
written  and  partly  printed,  the  words, 

"  Constitution :  Suffrage?' 

In  such  manner  that  such  words  shall  appear  on  the  oth- 
er side  of  such  ballot  when  folded. 

If,  at  the  said  election,  a  majority  of  all  the  votes  given 
for  ;>nd  against  the  said  separate  amendment  shall  contain 
the  words  "  Equal  suffrage  to  colored  persons?— Yes,"  then 
the  said  separate  amendment,  after  the  first  day  of  Jauua- 

2,  1847,  shall  be  a  separate  section  of  article  second  of 
e  Constitution,  in  full  force  and  effect,  any  thing  con- 
tained in  the  Constitution  to  the  contrary  notwithstanding. 
Resolved,  That  the  last  preceding  resolution  be  caused 
to  be  published,  in  the  manner  specified  in  the  resolution 


of  the  Convention  relative  tosthe  notice  of  the  time  and 
manner  of  voting  for  the  amended  Constitution. 
By  order  of  the  Convention. 

JOHN  TRACY,  President, 
And  Delegate  from  the  county  of  Chenango. 
JAMES  F.  STARBUCK,  ) 
FRANCIS  SEGER,         >  Secretaries. 
HENRY  W.  STRONG,    ) 


IN    CONVENTION, 

ALBANY,  October  9,  1846. 

The  Delegates  of  the  People  in  Convention,  having  ter- 
minated their  deliberations,  present  to  you  the  result  of 
their  labors  in  an  amended  Constitution  of  fourteen  Arti- 
cles, to  be  considered  together,  for  your  adoption.  They 
have  presented  for  your  separate  consideration,  a  section 
relative  to  suffrage,  equally  applicable  to  the  present  and 
proposed  constitution. 

In  these  fourteen  articles,  they  have  reorganized  the  le- 
gislature; established  more  limited  districts  for  the  elec- 
tion ot  the  members  of  that  body,  and  wholly  sepaiated  it 
from  the  exercise  ofjudicial  power  The  most  important 
state  officers  have  been  made  elective  by  the  people  of  the 
state;  and  most  of  the  officers  ol  cities,  towns  and  counties, 
are  made  elective  by  ton  voters  of  the  locality  they  serve. 
They  have  abolished  a  host  of  useless  offices.  They  have 
sought  at  once  to  reJuce  and  decentralize  the  patronage 
of  the  Executive  government.  They  have  rendered  invi- 
olate *he  funds  devoted  to  Education.  After  repeated  fail- 
ures in  the  legislature,  they  have  provided  a  Judicial  Sys- 
tem, adequate~to  the  wants  of  a  free  people,  rapidly  in- 
creasing  in  arts,  culture,  commerce  and  population.  They 
have  made  provision  for  the  payment  of  the  whole  State 
Debt,  and  the  completion  of  the  Public  Works  begun. — 
While  that  debt  is  in  the  progress  ol  payment,  they  have 
provided  a  large  contributcon  from  the  canal  revenues  to- 
wards  the  current  expenses  of  the  state,  and  sufficient  for 
that  purpose,  when  the  state  debt  shall  have  been  paid  ; 
and  have  placed  strong  safeguards  against  the  recurrence 
of  debt,  and  the  improvident  expenditure  of  the  public  mo- 
ney. They  have  agreed  on  important  provisions  in  relatiun 
to  'the  mode  of  creating  incorporations,  and  the  liability  of 
their  members;  and  have  sought  to  render  the  business  of 
banking  more  safe  and  responsible.  They  have  incorpo- 
rated many  useful  provisions  more  effectually  to  secure 
the  people  in  their  rights  of  person  and  property  against 
the  abuses  of  delegated  power.  They  have  modified  the 
power  of  the  Legislature,  with  the  direct  consent  of  the 
people,  to  amend  the  Constitution  from  time  to  time,  and 
have  secured  to  the  people  ot  the  state,  the  right  once  in 
twentv  years  to  pass  directly  on  the  question,  whether 
they  will  call  a  Convention  for  the  revision  of  the  Con- 
stitution. 

These  articles  embrace  all  the  provisions,  agreed  upon 
by  the  Convention,  to  constitute  the  Constitution  of  the 
State.  They  are  of  course  very  numerous,  often  depend- 
ent one  upon  aaother,  and  can  be  best  considered,  as  a 
whole;  and  the  Convention  have  not  found  it  practicable 
to  separate  them  into  parts  to  be  separately  passed  upon  by 
the  people. 

The  Convention  have  therefore  presented  the  subject 
in  the  form  that  will  best  enable  the  people  to  judge  be- 
tween the  old  and  the  new  Constitution.  If  the  Constitu- 
tion now  proposed  be  adopted,  the  happiness  and  progress 
of  the  People  of  this  State,  will,  under  God,  be  in  their 
own  hands.  By  order  of  the  Convention, 

JOHN  TRACY,  President, 
And  Delegate  from  the  county  of  Chenango. 


JAMES  F.  STARBUCK,  ) 

FRANCIS  SEGER,         >   Secretaries. 

HENRY  W.  STRONG,    ) 


CONVENTION 


OF  THE 


STATE  OF  FEW-YORK. 


ASSEMBLY  CHAMBER, 
ALBANY,    Monday,  June  1,  1846. 

In  pursuance  of  the  Act  recommending  a  Convention  of  the  People  of  this 
State,  passed  May  13,  1845,  the  Delegates  assembled  at  the  Capitol, 
in  the  City  of  Albany,  on  this  day. 


At  12  o'clock,  the  Hon.  NATHANIEL  S.  BEN- 
TON,  Secretary  of  State,  appeared  and  stated  that 
in  obedience  to  the  aforesaid  Act,  he  was  in  at- 
tendance with  a  certified  List  of  the  Delegates 
elected  to  the  Convention,  He  then  proceeded 
to  call  the  List. 

All  the  members  elected  to  the  Convention 
were  present  and  answered  to  their  names,  except 
SAMUEL  NELSON,  of  Otsego,  JOHN  K.  PORTER, 
of  Saratoga,  and  ANDREW  W.  YOUNG,  of  Wyo- 
ming. These  not  answering,  the  Secretary  de- 
clared that  125  out  of  128  delegates  were  present, 
and  that  those  above  named  alone  were  absent. 

Mr.  HOFFMAN  then  said  that  a  quorum  be- 
ing present,  and  that  all  the  necessary  forms  pre- 
paratory to  the  organization,  as  required  by  the 
act,  having  been  fully  complied  with,  he  now 
thought  the  next  duty  was  to  proceed  to  the  ap- 
pointment of  officers  and  to  complete  their  organ- 
ization. He  therefore  moved  that 

CHARLES  H.  RUGGLES,  of  Dutchess,  be  ap- 
pointed Chairman  pro  tern,  to  preside  over  the  de- 
liberations of  the  Convention  until  its  organization 
was  completed ;  and  that  the  Hon.  Secretary  of 
State  act  as  Secretary  pro  tern.,  either  by  himself 
or  his  clerks. 

Mr.  RUGGLES'  name  being  put  to  the  meet- 
ing by  the  Secretary  of  State,  he  was  unanimously 
elected. 

Mr.  RUGGLES  then  took  the  Chair. 

The  CHAIRMAN:  The  next  business,  gentle- 
men, will  be  to  prepare  your  ballots  for  a  Presi- 
dent of  the  Convention ;  and  as  your  names  are 
called  over  by  the  Secretary,  by  counties,  you 
will  deposite  your  ballots  in  the  box. 

The  members  were  then  called  over  by  coun- 
ties, alphabetically,  and  125  ballots  were  depo- 
sited. 

IB 


The  CHAIRMAN:  All  the  members  present 
having  voted,  and  the  ballots  having  been  de- 
posited in  the  box,  Mr.  O'CONOR,  of  New- York, 
Mr.  BROWN,  of  Orange,  and  Mr.  STETSON,  of 
Clinton,  are  appointed  Tellers  to  count  the  same. 
These  three  gentlemen  then  reported  their  count 
to  result  thus : 

John  Tracy,  of  Chenango,  69 

John  Miller,  of  Cortland,  6 

Charles  P.  Kirkland,  of  Oneida,  5 

Ambrose  L.  Jordan,  of  Columbia,  5 
George  C.  Clyde,  of  Columbia,  9 

James  Tallmadge,  of  Dutchess,  7 

Alvah  Worden,  of  Ontario,  11 

Elijah  Rhoades,  of  Onondaga,  1 

Blank,  6 

Charles  H.  Ruggles,  of  Dutchess,  1 
George  W.Patterson,  of  Chautauque,  3 
George  A.  Simmons,  of  Essex,  .  2 

125 

Necessary  to  a  choice,  63. 

Mr.  TRACY,  of  Chenango,  was  declared  elec- 
ed,  and  Messrs.  ALLEN,  of  N.  York,  and  TALL- 
MADGE,  of  Dutchess,  were  appointed  a  committee 
to  conduct  him  to  the  chair. 

The  Hon.  Mr.  TRACY,  on  taking  his  seat,  said: 
Gentlemen,  in  returning  you  my  sincere  thanks 
for  the  honor  you  have  done  me  in  electing  me  as 
your  presiding  officer,  I  can  only  assure  you  that 
it  shall  be  my  earnest  and  constant  endeavor  to 
execute  the  duties  thereof  with  a  deep  sense  of 
their  importance,  and  of  the  great  responsibility 
attached  to  them,  and  faithfully  and  impartially. 
And  I  rely,  gentlemen,  upon  your  giving  me  your 
valuable  assistance  to  enable  me  to  carry  into  ef- 
fect such  rules  and  orders  as  you  may  adopt,  and 


18 


in  carrying  out  the  business  of  this  Convention. 
And  in  conclusion,  allow  me  to  express  the  sin- 
cere hope  that  our  labors  may  extend  to  the  pro- 
motion of  the  happiness  and  to  the  enduring  pros- 
perity of  our  people. 

Mr.  STETSON  then  offered  a  resolution  that 
JAMES  F.  STARBUCK,  of  Jefferson,  and  HEN- 
RY W.  STRONG,  of  Rensselaer,  be  appointed 
Secretaries  of  the  Convention,  without  going  into 
a  ballot.  This  was  carried. 

Mr.  M'NEIL  offered  a  resolution  appointing 
HIRAM  ALLEN,  of  Columbia,  Serjeant-at-Arms 
of  this  Convention. 

Mr.  HOFFMAN  seconded  it,  although  there 
was  no  provision  in  the  law  therefor;  yet  such  an 
officer  was  highly  necessary.  It  was  carried. 

Mr.  CAMBRELENG  then  nominated  HER- 
MAN R.  HOWLETT,  as  Doorkeeper  to  the  Conven- 
tion. It  was  carried. 

Mr.  WARD  then  offered  a  resolution  that  a 
committee  of  5  be  appointed  to  prepare  rules  and 
regulations  for  the  government  of  the  Convention. 

Mr.  HOFFMAN  said  he  wished  a  commit- 
tee of  7,  as  this  was  a  very  important  matter, 
and  they  were  to  make  rules  by  which  the  Con- 
vention must  act  throughout.  He  wished  the 
number  enlarged,  and  was  not  tenacious  of  any 
particular  number. 

Mr.  WARD  agreed  to  7.     It  was  carried. 

Mr.  HOFFMAN  said  as  they  were  now  pretty 
well  organized,  he  wished  to  fix  a  time  for  ad- 
journing to;  he  moved  that  when  they  adjourned, 
it  should  be  until  11  o'clock  to-morrow. 

Mr.  BOUCK  offered  a  resolution  to  direct  the 
Secretaries  to  dll  on  the  Clergy  of  this  city  to 
ask  them  to  make  such  arrangements  amongst 
themselves,  so  that  one  of  their  number  should 
open  the  Convention  each  day  with  prayer.  This 
was  carried. 

Mr.  MANN,  of  New-York,  offered  a  resolution, 
that  the  members  now  go  into  a  draft  for  their  re- 
spective  seats,  which  subject  occupied  the  time 
of  the  Convention  till  it  adjourned. 

TUESDAY,  (2d  day,)  June  2. 

The  Convention  met  this  day,  pursuant  to  re- 
solution, and  at  11  o'clock  the  President  took  the 
chair. 

The  proceedings  were  opened  with  pra\er  by 
the  Rev,  Mr.  WYCKOFF. 

The  minutes  ot  yesterday's  proceedings  were 
read  by  Mr.  STRONG,  one  of  the  Secretaries. 

Mr.  TALLMADGE  said  that  the  condition  and 
action  of  the  Secretary  of  State,  as  stated  in  the 
minutes,  was  not  as  it  ought  to  be;  he  wished  to 
amend  them  by  saying  that  the  Secretary  of  Slate 
attended  them  in  person,  called  the  Convention  to 
order,  and  delivered  the  official  list  and  read  it. — 
This  proceeding  added  great  dignity  to  the  organi- 
zation of  yesterday. 

The  minutes  were  so  amended  and  approved. 

The  President  named  thecomminittee  on  Rules : 

Messrs.  WARD,  TALLMADGE,  LOOMIS,  PAT- 
TERSON, CAMBRELENG,  PERKINS,  SIMMONS. 

Mr.  CHATFIELD  offered  a  resolution  that  each 
member  be  furnished  with  a  copy  of  the  State 
Constitution,  printed  in  proper  size,  to  be  presei- 
ved  with  the  proceedings  of  this  Convention. 

Mr.  WARD  suggested  that  all  the  Constitu- 
ions  of  the  State,  be  furnished,  &c. 


Mr.  STRONG  wished  added  the  Constitution  of 
the  U.  S. 

Mr.  TALLMADGE  wished  to  have  it  in  an  oc- 
tavo form. 

Mr.  MURPHY  wished  the  Act  calling  the  Con- 
vention, to  be  printed  with  it,  and  also  the  amen- 
datory Act. 

Mr.  RUSSELL  thought  the  icsolution  and 
amendments  not  comprehensive  enough.  Few  of 
us  have  seen  the  various  new  Constitutions  of  the 
other  States.  These  were  very  necessary  to  aid 
us  in  our  labors.  He  wished  all  these  State  Con- 
stitutions with  all  the  other  matters  of  reference 
that  were  necessary  for  the  guidance  of  members, 
to  be  printed  in  the  form  ot  a  manual.  He  moved 
to  lay  the  resolution  on  the  table,  but  withdrew 
it  at  the  request  of  the  mover. 

Mr.  CHATFIELD  supposed  the  Convention 
were  to  furnish  the  members  with  the  ordinary 
supplies,  and  he  moved  to  so  amend  the  resolu- 
tion. If  we  waited  to  print  all  the  matters  named 
here,  we  should  not  get  it  till  we  are  about  to  ad- 
journ. 

Mr.  RUSSELL  asked  if  the  old  works  on  these 
subjects  contained  (he  recent  new  Constitutions  of 
New  Jersey,  Florida,  &.c.  &c. 

Mr.  CHATFIELD  :  No,  sir,  nor  ot  Texas.— 
(Laughter.) 

Mr  CAMBRELENG  said  the  old  work  con- 
taining the  State  Constitutions,  had  hardly  one  of 
the  present  State  Constitutions.  It  had  not  those 
of  Florida,  Texas,  Missouri,  or  Louisiana,  nor  any 
of  the  amended  Constitutions. 

The  resolution  to  appoint  a  committee  to  refer 
all  these  amendments  to,  was  carried,  and  Messrs. 
RUSSELL,  BOWDISH,'  and  KIRKLAND,  were  ap- 
pointed such  committee. 

Mr.  TAYLOR,  of  Onondaga,  offered  a  resolu- 
tion that  the  Secretaries  emploj  the  present  con- 
tractors for  legislative  printing,  to  print  for  this 
Convention,  at  the  same  rates  as  their  present  con- 
tract prices. 

Mr.  HOFFMAN  wished  the  printer  to  this 
Convention  to  enter  into  a  contract  with  the  Comp- 
troller, precisely  similar  to  the  present  contract 
for  legislative  printing.  He  wished  the  resolu- 
tion to  be  so  amended.  He  had  not  the  act  by 
him. 

Mr.  MORRIS  read  that  section  of  the  act.  He 
objected  to  the  Comptroller  being  named  here. — 
The  Comptroller  was  no  officer  of  this  Conven- 
tion. He  preferred  the  contract  to  be  made  by 
our  own  officers.  It  should  be  made  by  the  Se- 
cretary here  ;  but  let  it  be  similar  in  spirit  to  the 
legislative  contract. 

Mr.  HARRIS  moved  to  insert  the  name  of 
Charles  F.  Boughton  instead  of  the  present  con- 
tractors. 

Mr.  JONES  called  the  ayes  and  noes. 

Mr.  PATTERSON  wished  the  8th  section  of 
the  act,  calling  the  Convention  to  be  read. 

It  was  read,  and  says  that  the  Convention  it- 
sell  shall  appoint  a  printer.  The  name  of  the 
printer  thus  appointed,  should  appear  in  the  re- 
solution. 

Mr.  CHATFIELD  wished  to  strike  out  "pres- 
ent contractors,"  and  insert  "Carroll  &  Cook." 

Mr.  JONES  withdrew  the  call  for  the  ayes  and 
noes,  as  there  was  no  printed  list. 

Mr.  HARRIS  resumed  the  call. 


19 


Mr.  PERKINS  called  for  a  division  of  the  ques. 
tion 

The  CHAIR  said  the  first  question  would  be  on 
striking  out. 

Mr.  CHATFIELD  said  the  ayes  and  noes  must 
be  called  for  by  a  majority  of  the  members;  and 
we  have  now  no  rules, 

Mr.  RICHMOND  contended  this  was  not  the 
case  ;  if  so  the  small  minority  never  could  get  the 
ayes  and  noes. 

Mr.  TAYLOR,  of  Onondaga,  said  in  the  ab- 
sence of  rules,  it  must  require  a  majority — with 
rules,  10,  15  or  20  might  demand  them. 

Mr.  RICHMOND  contended  that  his  position 
was  right. 

Mr.  TAYLOR  reiterated  his  opinion;  and  con- 
sented to  have  the  names  of  "Carroll  &  Cook"  in- 
serted. 

Mr.  LOOMIS  wished  the  Convention  itself  to 
appoint  the  printer  direct,  and  not  the  Secreta- 
ries. 

Mr.  PERKINS  thought  that  perhaps,  without 
a  new  contract,  these  printers  might  be  entitled  to 
charge  the  same  as  the  old  prices.  He  wished  the 
resolution  distinctly  to  state  this  point. 

Mr.  TILDEN  wished  nothing  struck  out.  This 
Convention  was  competent  to  have  their  Secreta- 
ries select  a  printer  or  do  it  directly.  The  object 
of  this  resolution  is  to  have  the  present  printers  do 
the  work  at  the  present  contract  prices.  For  no 
one  could  do  the  work  at  those  prices  without 
loss,  unless  they  had  other  business  to  assist  them. 
The  resolution  might  authorize  the  present  con- 
tractors to  do  the  work  of  the  Convention,  provi- 
ded they  would  do  it  at  their  present  contract 
prices  for  legislative  printing.  He  proposed  there- 
fore, to  save  time,  to  pass  the  resolution  in  its  ori- 
ginal torm. 

Mr.  HOFFMAN  was  entirely  satisfied  with  the 
resolution  as  i"  stands.  For  it  contained  the  pro- 
per limit?-iion.  However,  to  give  his  friend  from 
Albany  a  (air  chance,  hs  hoped  the 'words  would 
be  stricken  out,  and  the  name  of  his  man  (Bough- 
ton)  inserted,  to  give  him  a  fair  chance  in  the 
race. 

Mr.  PERKINS  did  not  wish  to  press  his  point. 

Mr.  HARRIS  preferred  the  parliamentary  course 
to  be  taken,  and  the  place  for  the  name  ot 
the  printer  to  be  left  blank.. 

Mr.  TAYLOR :  How  can  we  get  a  blank  there 
without  striking  out? 

The  CHAIR:  The  resolution  can  be  consider, 
ed  as  "in  blank,"  unless  otherwise  insisted  on. 

Mr.  HARRIS  wished  that  no  names  at  all  should 
be  inserted  in  the  resolution  on  its  passage. 

The  CHAIR  first  pul  the  question  on  the  ayes 
and  noes.  This  was  carried. 

The  motion  for  a  division  of  the  question  being 
withdrawn,  the  question  was  taken  on  striking 
out  and  inserting. 

The  ayes  and  noes  resulted  thus — ayes  39,  noes 
34. 

The  amendment  was  lost. 

The  resolution  was  then  adopted. 

Mr.  JONES,  of  New  York,  moved  that  WM.  S. 
Ross,  of  New  York,  be  appointed  an  Assistant 
Doorkeeper. 

This  was  carried  by  a  count. 

Mr.  PERKINS  moved  that  FRANCIS  BRATT,  be 
2d  Asasistant  Doorkeeper. 


Mr.  TALLMADGE  said  that  they  did  not  need 
so  many  Doorkeepers.  He  would  rather  multi- 
ply the  number  of  the  boys. 

Mr.  PERKINS  did  not  see  how  the  boys  could 
keep  order  at  the  doors.  We  needed  all  the  door- 
keepers that  we  were  about  to  appoint. 

Mr.  RICHMOND  thought  that  we  had  better 
order  under  two  doorkeepers,  than  when  we  had 
three.  Up  to  1841  we  had  only  two. 

Mr.  PERKINS  said  that  up  to  1841  we  had  but 
two  doors  to  the  house,  therefore  the  gentleman 
had  better  also  move  to  have  one  of  the  doors  shut 
up. 

Mr.  RUSSELL  moved  that  the  president  ap- 
point such  door-keepers  for  the  gallery  and  such 
messengers  as  he  may  think  proper. 

Mr.  PATTERSON  thought  they  had  gone  far 
enough  in  appointing  door-keepers.  There  was 
no  provision  in  the  law  for  a  serjeant-at-arms,  yet 
he  did  not  want  to  oppose  the  Captain  of  the 
Convention  on  that  point,  and  so  went  for  it. — 
He  moved  to  strike  out  "door-keepers  for  the 
gallery,"  and  let  the  president  appoint  such  mes- 
sengers as  he  thought  necessary,and  also  messen- 
gers for  the  gallery,  but  not  to  give  them  door- 
keeper's pay. 

The  ayes  and  nays  were  called  for  by  Mr.  PAT- 
RERSON,  on  his  resolution  to  strike  out  the  gal- 
lery door-keepers,  and  ordered.     The  result  was 
Ayes,  -  63 

Noes,  -  57 

The  motion  to  "  strike  out  '*  therefore  pre- 
vailed ;  and  the  resolution  on  the  messengers 
came  up. 

Mr.  CHATFIELD  moved  to  insert  not  more 
than  five  messengers. 

Mr.  JONES  thought  11  were  not  too  many,  the 
Assembly  last  year  had  15.  He  wished  it  left 
discretionary  with  the  president. 

Mr.  PATTERSON  said  the  President  would 
meet  with  much  embarrassment  unless  the  num- 
ber was  limited  ;  he  therefore  wished  to  have 
the  number  limited  ;  whatever  number  is  abso- 
lutely necessary,  name  them,  but  let  there  be  a 
limit. 

Mr.  TILDEN  said  the  number  of  boys  last  year 
was  not  more  than  was  absolutely  necessary.  If 
we  had  too  few,  much  delay  will  occur  in  the 
public  business,  and  will  be  anything  but  eco- 
nomical to  have  too  few. 

Mr.  RICHMOND  said  there  would  not  be  so 
many  resolutions  offered  here  as  there  were  in 
the  Legislature. 

Mr.  CHATFIELD  thought  five  boys  were  suf- 
ficient. If  five  was  not  enough,  the  number 
could  be  increased  hereafter. 

Mr.  TILDEN  said  that  seven  or  eight  would  be 
enough. 

Mr.  RUSSELL  accepted  Mr.  CHATFIELD'S  a- 
mendment,  that  the  number  of  messengers  should 
be  designated  and  limited  to  five. 

Mr.  TILDEN  moved  to  strike  out  five  and  in- 
sert seven. 

Mr.  SHEPARD  seconded  it. 

A  count  was  called  for.  The  result  was,  that 
Mr.  TILDEN'S  amendment  was  lost,  and  the  reso- 
lution, as  amended,  (for  five  messengers)  was 
carried. 

Mr.  WARD  moved  that  provision  be  made  for 


20 


printing  600  copies  of  the  Journal  of  the  Conven- 
tion, for  the  use  of  the  members. 

Mr.  PATTERSON  wished  to  know  how  they 
were  to  be  disposed  of.  Were  they  to  be  dis- 
tributed through  the  state,  or  left  in  the  public 
library,  or  are  they  all  to  be  given  to  the  mem- 
bers ? 

Mr.  WARD  said  a  portion  would  be  sent  to 
every  county  in  the  State,  another  portion  left  in 
the  library,  and  another  for  the  members.  600 
copies  were  printed  for  the  legislature.  Since 
the  last  Convention  there  were  many  new  towns 
and  counties  added  to  the  state. 

IVl  r.  STRONG  wished  to  save  expense,  and  to 
have  no  more  printed  than  were  necessary. 

Mr.  TALLMADGE  said  the  greatest  expense 
was  the  setting  up  of  the  type,  and  that  300 
would  cost  nearly  as  much  as  500  or  600. 

Mr.  BRUCE  said  that  they  were  sent  here  to 
set  a  pattern  of  economy  and  reform  for  the  state, 
and  he  objected  to  more  than  250,  the  usual  num- 
ber printed  of  the  Assembly  Journal. 

Mr.  MURPHY  moved  to  refer  the  subject  to 
the  committee  appointed  this  day  to  take  charge 
of  all  these  matters  ;  particularly  as  there  was 
much  different  information  on  the  subject. 

Mr.  WARD  said  that  230  copies  were  laid  on 
the  tables  of  the  legislature  daily,  and  over  300 
copies  were  preserved  in  the  library,  to  be  bound 
up,  &c. 

The  motion  of  Mr.  MURPHY  was  carried. 
Mr.  JONES  moved  that  a  committee  of  16— 
two  from  each  Senate  district — be  appointed  by 
the  President  to  consult  and  report  upon  the 
best  mode  of  proceeding  to  revise  the  Consti- 
tution. 

This  was  laid  on  the  table  for  the  present,  by 
consent  of  the  mover. 

Mr.  PERKINS  moved  that  the  rules  of  the 
Convention  of  1821,  be  adopted  as  rules  of  this 
Convention,  until  the  committee  report  the  new 
rules. 

Mr.  BERGEN  moved  that  the  rules  of  1821  be 
read.  And  he  sent  the  book  to  the  Secretary. 

The  motion  of  Mr.  PERKINS,  however,  was 
laid  on  the  table. 

Mr.  PERKINS  moved  that  ABNER  S.  BEARDS 
X.EY,  be  continued  a  librarian,  and  to  perform  the 
same  duties  to  this  Convention  as  he  has  hereto- 
fore done  to  the  members  of  the  legislature. 

A  few  remarks  were  made  relative  to  this  pow 
er  being  vested  in  the  Comptroller. 

The  resolution,  however,  was  ultimately  car 
Tied. 

Mr.  KIRKLAND,  of  Oneida,  said  that  there 
was  certain  information  very  necessary  to  be  laid 
before  the  Convention,  and  he  moved  that  the 
County  Treasurer  of  each  county  be  directed  to 
send  to  the  Secretary  of  this  Convention,  a  state- 
ment of  the  amount  that  has  been  paid  to  the 
judges  of  the  county  courts  in  each  county,  in 
1844  and  1845. 

Mr.  RUSSELL  thought  it  would  not  be  in  the 
power  of  the  county  treasurer  to  furnish  this. 

Mr.  RHOADES  said  he  only  wished  to  get  ac- 
curate information  as   to  the  sums   paid   to  the 
judges  for  actual  judicial  duties  ;  not  for  what  he 
termed  ministerial  duties. 
Mr.  SMITH  of  Chenango,  suggested  that  this 


nformation  could  be  better  obtained  from  the 
Clerks  of  counties. 

Mr.  RUSSELL  said  that  it  would  be  better  to 
ask  for  the  precise  number  of  days  these  court* 
were  held  in  each  year  in  the  several  counties. 

Mr.  RHOADES  said  that  in  different  counties, 
he  differentfclerks  adopted  different  rules  in  com- 
mting  the  time  or  service  of  the  judges. 

Mr.  RUSSELL  moved  to  strike  out  •«  Treasu- 
ers,"  and  insert  **  Clerks." 

Mr.  BROWN  of  Orange,  said  the  mere  cora- 
)ensation  paid  to  judges,  formed  a  small  part  of 
he  expenses  of  these  County  Courts.  The  at- 
endance  of  jurors  was  often  heavy.  The  sum  of 
j>36  a  day  was  paid  to  the  jurors  of  the  Court  of 
Common  Pleas,  in  his  county,  and  there  was  the 
compensation  to  poor  witnesses,  constables,  &c. 
le  wished  to  have  all  the  information  connected 
with  this  subject,  obtained  if  possible  by  this 
resolution,  and  brought  before  the  Convention. 

The  resolution  was  laid  on  the  table  by  consent 
of  the  mover. 

Mr.  RHOADES  moved  that  the  Secretary  of 
State  be  directed  to  prepare  and  present  to  the 
Convention,  a  list  of  all  the  officers  of  this  state, 
hat  are  appointed  by  the  Governor,  alone,  or  by 
him  and  the  Senate  jointly. 

It  was  amended  so  as  to  read  **  and  all  officers 
appointed  by  the  Canal  Board." 

Mr.  STOW  moved  to  lay  this  on  the  table,  in 
order  to  make  it,  as  well  as  the  other,  compre- 
lensive  enough  to  bring  out  all  the  information 
necessary,  on  the  subject. 

The  resolution  was  laid  on  the  table,  with  con- 
sent of  the  mover. 

A  motion  to  print  these  resolutions  was  offered 
>ut  withdrawn. 

On  motion  of  Mr.  CHATFIELD,  the  Conven- 
tion adjourned  till  to-morrow  morning  at  11 
o'clock. 


WEDNESDAY,  (3d  day,)  June  3. 

The  PRESIDENT  took  the  Chair  precisely  at 
11  o'clock. 

Prayer  by  the  Rev.  Mr-  WYCKOFF. 

Messrs.  NELSON  and  PORTER  appeared  and 
took  their  seats.  These,  with  Mr.  A.  W.  YOUNG, 
who  arrived  yesterday,  complete  the  number  of  de- 
legates, viz  : — 128. 

The  Secretary  read  theminutes  of  the  last  meet- 
ing,  and  they  were  approved,  after  two  amend- 
ments, as  t.o  a  change  of  the  names  of  movers  of 
resc.lutions. 

Mr.  CHATFIELD  moved  that  the  names  of  the 
three  absentees  be  called.  Messrs.  NELSON,  POR- 
TER, and  A.  W.  YOUNG,  were  called,  and  they 
answered. 

Mr.  WARD  was  directed  by  the  committee  on 
Rules  to  present  their  report,  which  he  did. 

The  Secretary  read  them. 

Mr.  WARD  then  moved  that  the  vote  betaken 
on  each  rule  separately. 

1st.  Rule.  On  the  appearance  of  a  quorum  the  President 
shall  take  the  Chair,  and  the  Con ventiom  be  called  to 
order.  Carried. 

2d    Reading  of  the  minutes  and  corrections.    Carried. 

3d.  The  President  shall  \  reserve  order  and  decorum, 
and  decide  questions  ot  order  subject  to  an  appea>.  to  tiie 
Convention.  He  shall  have  the  right  to  name  any  mem. 
ber  to  penorm  the  duties  of  the  Chair  ;  but  such  substi- 
tution shall  not  extend  beyond  the  hour  of  adjournment. 
Carried, 


21 


4th.  All  motions  and  addresses  to  be  made  to  the  Presi 
dent.    Carried. 

6th.  No  notice  to  be  debated  or  put,  unless  seconded  ; 
and  all  to  be  reduced  to  writing.  Carried. 

6th.  Ayes  and  noes,  to  be  called  tor  by  10  members.— 
Carried. 

7tb.  President  to  name  who  has  the  floor.    Carried. 
8th.  No  interruption,  and  on  a  call  to  order,  a  member 
must  sit  down.    Carried. 

9th.  No  conversation  whilst  a  member  is  speaking,  and 
no  passing  between'*  member  who  is  speaking  and  the 
Chair.  Carried. 

lOih.  No  reference  to  members'  names  in  debates.— 
Canied. 

llth.  Motion  can  be  withdrawn  by  mover  before 
question  is  put,  and  amendment  made,  and  another 
member  may  put  the  same.  Carried. 

ISth.  All  committees  to  be  appointed  by  the  President, 
unless  otherwise  ordered.  Carried. 

13th.  None  to  be  admitted  inside  of  the  bar  except 
members  or  officers ,  without  permission  of  the  President, 
or  on  the  invitation  of  a  member. 

Mr.  MORRIS  said  if  this  passed  so,  he  would 
invite  every  man,  woman  and  child  on  the  floor, 
who  asked  him  to  do  so.  If,  might  do  in  the  win- 
ter season,  but  not  now.  The  deep  recesses  of 
the  vitality  of  some,  enabled  them  to  stand  win- 
ter's blast,  and  summer's  scorching  heat;  but 
others  were  more  delicate.  He  wished  the  rule 
amended  so  as  to  prevent  the  members  trom  hav- 
ing any  power  to  invite  their  friends.  He  moved 
to  amend  so  as  to  allow  only  Governors,  Lieure 
nant  Governors,  Presidents,  Members  of  Congress 
officers  of  the  Army  and  Navy,  &c.,  including  the 
whole  string  of  persons  that  are  usually  allowed 
on  the  floor  of  the  House  of  Representatives,  in 
Washington,  amounting  to  about  2,000  persons. — 
(Laughter.) 

Mr.  PATTERSON  was  surprised  to  find  that 
the  amendment  would  admit  ten  times  as  many  as 
the  member*  would  invite.  (Laughter.) 

Mr.  MORRIS  declared  that  he  had  not  read  the 
amendment  It  was  handed  to  him  by  some  kinc 
friend,  (langhcer)  and  he  should  now  like  to  know 
in  whose  hand  writing  it  was.  (Much  laughter.' 
Mr.  WARD  said  it  was  in  his;  he  had  merely 
drawn  out  the  usual  rule  of  the  House  of  Repre- 
sentatives. 

Mr.  PATTERSON  thought   the  persons  named 
in  the  amendment   were  no  better  entitled  to  th 
floor,  than  any  honest  citizen  of  the  State  of  New 
York.     He  wished   the   power  to  admit  persons 
to  be  left  to  the  discretion  of  the  President. 

Mr.  A.  W.  YOUNG  thought  the  discretion  o 
the  members  was  a  sufficient  guarantee  to  guarc 
against  any  unnecessa-y  number. 

Mr.  WORDEN  called  for  the  reading  of  th 
rule.  It  was  read.  He  moved  this  amendment 
"That  none  be  admitted  within  the  bar,  unless  bj 
the  permission  of  the  President — except  the  mem 
bers  of  the  Convention  and  its  attendants."  H 
thought  if  the  matter  was  left  to  the  members 
discretion,  there  would  be  no  bounds.  He  woul< 
invite  all  who  asked  him  to  do  so.  And  then 
would  be  no  end  to  the  number;  and  the  prope 
business  of  legislation  would  be  greatly  interrupt 
ed;  besides  the  season  of  the  year,  would  not  al 
low  of  such  numbers  being  on  the  floor. 

Mr.  STETSON  moved  to  strikeout  all  afte 
"except"  and  including  that  word. 

Mr.  WORDEN  accepted  the  amendment. 
Mr.  BASCOM  moved  to  amend,   "aud  citizen 
upon  the  invitation  of  the  President." 


Mr.  SWACKHAMER  suggested  that  the  Gov- 
rnor  of  Canada  was  coming  this  way  soon  ;  and 
nth  this  amendment  in  force,  the  President  would 
ot  have  the  power  to  invite  him  ;  and  he  thinks 
ome  of  becoming  an  American  citizen. 
Mr.  TAYLOR  of  Onondaga,  thought  the  origi- 
al  rule  best  as  it  stood. 

Mr.  HOFFMAN  suggested  as  a  compromise, 
hat  the  Governor  of  the  State,  Lieut.  Governor, 
he  State  officers,  the  Judicial  officers  of  the  State, 
hould  be  admitted.  They  would  be  here  fre- 
luenlly,  and  ought  to  be  allowed  the  freedom  of 
he  floor.  If  former  Presidents,  distinguished 
oreigners,  &c.,  should  come  here,  it  would  be 
he  most  agreeable  to  them  to  be  invited  by  the 
'resident  of  this  Convention. 

The  following  amendment  was  read:  "That  the 
Governor  of    the  State,  the  Lieut.  Governor  and 
he  State  officers  be  admitted  " 

Mr.  CHATF1ELD  vindicated  the  original  rule. 
The  matter  was  fully  discussed  in  committee  ;  and 
ill  limitation  would  be  embarrassing,  and  the  mat- 
er was  best  left  in  the  discretion  of  the  members 
and  President  of  the  Convention.  Mr.  HOFFMAN'S 
)roposition  would  lead  to  invidious  distinction  > 
t  excluded  the  President  of  the  U.  S.,  Ex-Presi- 
dents, members  of  Congress,  &c.  There  were  as 
many  out  of  office  worthy  of  admission  within  the 
bar,  as  those  who  now  "held  office.  No  trouble 
would  grow  out  of  the  rule  as  originally  repotted. 
No  member  would  abuse  the  courtesy  of  the  Con- 
vention ;  and  it  was  intended  to  relieve  the  Presi- 
dent from  too  large  a  number  of  applications. 

Another  proposition  was  sent  up  to  the  Chair, 
to  the  effect  that  none  but  members  of  the  Con- 
vention, Governor  of  New  York,  Lieut.  Governor, 
State  officers,  and  Judicial  officers  of  the  State 
should  be  admitted. 

Mr.  RUSSELL  moved  that  none  should  be  ad- 
mitted except  on  the  written  invitation  of  a  mem- 
ber, which  invitation  should  be  preserved  by  the 
doorkeeper. 

The  13th  rule  of  the  Convention  of  1821  was 
read. 

Mr.  RICHMOND  then  moved  to  admit  none 
but  the  members  and  the  attendants  of  the  Conven- 
tion, the  Governor  of  New  York,  the  Lieut.  Gov- 
ernor, Chancellor,  Vice  Chancellor,  Justices  of 
Supreme  Court,  Attorney  General,  Treasurer, 
Comptroller^  Secretary  of  State,  and  Surveyor 
General, 

Mr.  BRUCE,  of  Madison,  moved  to  strike  out 
all  after  "attendants." 

Mr.  HOFFMAN  objected  to  this.  We  must 
have  daily  intercourse  with  the  existing  govern- 
ment to  consult  its  members  in  the  discharge  of 
our  duties,  This  courtesy  was  due  to  them,  but 
could  not  be  extended  to  all ;  butsuch  distinguish- 
ed persons  as  might  be  entitled  by  their  position, 
to  expect  this  courtesy,  could  very  properly  be  in- 
vited  by  the  President  of  the  Convention.  We 
might  even  extend  the  courtesy  to  the  existing 
members  of  the  State  Senate  and  Assembly. 

Mr.  CAMPBELL,  of  Steuben,  thought  that  pri- 
vate citizens  (the  sovereigns)  were  as  much  enti- 
tled to  admission  as  the  servants  of  the  people. 
He  was  in  favor  of  the  original  rule.  We  ought 
not  to  make  an  invidious  distinction  between  the 
servant  and  the  sovereign. 


Mr.  W.  TAYLOR  wished  lo  relieve  the  Presi- 
dent from  unnecessary  responsibility,  and  throw  it 
on  the  members,  to  whose  discretion  this  matter 
might  safely  be  left,  and  no  inconvenience  would 
arise  from  it.  He  supported  the  original  resolu- 
tion. 

Mr.  WATERBUKY  thought  we  ought  not  to 
exclude  the  State  officers  j  we  wanted  their  ad- 
vice and  counsel,  their  suggestions,  and  their  as- 
sociations. 

Mr.  SIMMONS  thought  it  would  be  an  intoler- 
able burden  to  the  President  if  lelt  to  him  alone; 
he  saw  no  difficuliy  likely  to  arise  under  the  ori- 
ginal rule  j  he  wished,  however,  that  the  invita- 
tion should  include  all  the  State  officers  proper. 

Mr.  PATTERSON  asked  what  was  the  ques- 
tion. 

The  PRESIDENT  said  it  was  on  Mr.  BRUCE'S 
amendment  to  Mr  RICHMOND'S  motion  to  strike 
out  all  after  the  word  "attendants." 

A  count  resulted  thus : — ayes  70,  noes  not 
counted. 

Mr.  BRUCE'S  amendment  to  Mr.  RICHMOND'S 
amendment  to  "strike  out,"  was  carried. 

The  amendment  of  Mr  RICHMOND,  as  amend- 
ed, to  the  original  resolution  was  lost — ayes  44, 
noes  67. 

The  question  recurred  on  the  original  rule  ol 
the  committee. 

Mr.  RUSSELL  called  attention  to  his  amend- 
ment, that  all  invitations  by  members,  should  be 
in  'writing,  and  be  presented  by  the  doorkeeper. 

The  question  on  this  was  lost — ayes  2,  noes  not 
counted. 

Two  other  amendments  were  then  put,  varying 
scarcely  anything  from  Mr.  RICHMOND'S,  but 
they  received  less  than  20  votes. 

Mr.  MARVIN  moved  that  none  be  admitted 
but  the  Governor  of  New  York,  Lieut.  Governor, 
Ex-Governors,  Chancellor  and  Vice  Chancellors, 
Justices  of  the  Supreme  Court,  Circuit,  &c.,  State 
officers,  and  members  of  the  former  State  Conven- 
tion, except  on  invitation  of  the  President.  Mr. 
M.  contended  that  this  courtesy  was  due  to  the 
members  of  our  former  State  Convention.  This 
would  include  the  ex-President  of  the  United 
States,  (Mr.  VAN  BUREN,)  a  member  of  a  former 
Convention. 

Mr.  RICHMOND  thought  we  were  under  more 
obligations  to  invite  past  members  of  the  Assem- 
bly and  Senate  than  Circuit  Judges. 

Mr.  MARVIN'S  amendment  was  lost ;  only  a 
few  voting  for  it. 

Mr.  PERKINS  wished  to  have  the  previous 
question  put  in  force. 

He  was  answered  that  it  could  not  be  ;  they  had 
no  rules  at  all  in  force. 

Mr.  SHEPARD  wished  to  strike  out  of  the 
original  rule,  the  words  "  except  on  the  invitation 
of  a  member," 

A  motion  to  postpone  the  subject  till  to-mor- 
row had  only  2  votes. 

Mr.  SHEPARD  wished  the  discretion  left  en- 
tirely in  the  hands  of  the  President— the  matter 
was  safe  in  his  hands — he,  of  course,  would  invite 
all  those  to  whom  the  courtesy  ought  to  be  ex- 
tended. 

Mr.  RHOADES  supported  Mr.  SHEPARD'S  mo- 
tion—for,  during  the  Legislative  sessions,  the  cit- 


izens of  Albany  would  wa!k  inside  the  bar,  with- 
out any  invitation. 

Mr.  LOOM1S  was  opposed  to  leaving  this  in          ' 
the   hands  of  the   President — there    would  be  no 
danger  of  a  violation  of  propriety  to  allow  a  dis- 
cretionary power  to  the  members. 

Mr.  RHOADES  did  not  fear  that  members 
would  abuse  this  privilege — but  he  feared  that  cit- 
izens who  used  to  come  here,  would  abuse  their 
former  privileges,  and  crowd  the  aisles  on  every 
important  debate. 

Mr.  BRUCE  went  for  equal  rights  and  privi- 
leges ;  if  we  were  to  admit  any  dignitaries,  let  us 
admit  all  whom  the  members  might  choose  to  in- 
vite here. 

Mr.  PERKINS  thought  that  the  former  diffi- 
culties arose  from  the  neglect  of  the  door-keep- 
ers to  do  their  duty.  We  might  this  session  reg- 
ulate that  matter,  and  have  the  floor  cleared  at 
any  time. 

Mr.  MORRIS  said  that  it  would  be  impossible 
for  one  member  to  know  whom  another  member 
had  invited,  if  this  privilege  was  allowed ;  and 
where  was  the  evil  to  end  ? 

Mr.  STOW  proposed  that  all  who  are  admitted 
should  have  their  names  and  the  names  of  the 
members  who  invited  them  placed  in  the  hands 
of  the  doorkeeper. 

The  proposition  that  persons  should  be  invited 
"  by  the  Convention"  instead  of  "  by  member," 
was  lost. 

Mr.  STOWS  proposition  was  then  read. 

Mr.  RUSSELL  did  hope  that  this  would  pass ; 
for  persons  who  were  never  invited  by  any  one, 
would  frequently  come  to  the  door-keeper,  and 
say  they  were  invited  by  a  member. 

Mr.  E.  B.  SMITH  hoped  it  would  not  pass ; 
we  should  have  to  have  baskets  to  keep  all  these 
written  invitations  in,  and  a  clerk  to  sort  them. 

Mr.  STOWS  proposition  was  lost — ayes  33, 
noes  59. 

The  original  resolution  of  the  committee  was 
then  put  and  carried — ayes  91,  noes  not  counted. 

14.  The  previous  question  shall  always  be  in  order  in 
Convention,  if  seconded  by  a  majority,  and  until  it  is  deci- 
ded all  amendments  and  debates  shall  be  precluded.     The 
question  shall  be  put  in  this  form,  "  shall  the  main  ques- 
tion be  now  put?"    It  it  should  be  decided  that  the  ques- 
tion should  not  now  be  put,  the  main  question  shall  still 
remain  under  consideration.    If  seconded,  the  questions 
will  then  be  taken  in  their  order  without  further  debate. 
Amendments  proposed  in  committee  of  the  whole  shall  be 
deemed  pending,  and  in  order  if  called  for  by  a  member. — 
Carried. 

15.  A  motion  to  adjourn  shall  always  be  in  order,  and  be 
decided  without  debate.    Carried. 

16.  In  forming  committees  of  the  whole,  the  president, 
before  leaving  the  chair,  shall  appoint  a  chairman.  Carried. 

17.  No  member  shall  speak  more  than  twice  to  the  same 
question  without  leave,  nor  more  than  once  until  every 
other  member  rising  to  speak  shall  have  spoken.   Carried. 

18-  A  motion  lor  reconsideration  shall  be  in  order  at  any 
time,  and  may  be  moved  by  any  member  of  the  Convention. 
But  the  question  shall  not  be  taken  on  the  same  day,  un- 
less by  unanimous  consent,  and  if  lost,  it  shall  not  be  re- 
newed, or  any  vote  taken  on  a  reconsideration  a  second 
time,  unless  with  the  consent  of  the  Convention.  If  the 
motion  to  reconsider  is  not  made  on  the  same  day,  three 
days  shall  be  required  to  be  given  of  the  intention  to 
make  it. 

Mr.  TILDEN  asked  why  the  form  was  changed, 
viz :  That  a  person,  to  move  to  reconsider,  must 
have  voted  in  the  affirmative. 

Mr.  CHATFIELD  said  the  committee  did  not 
expect  any  abuse  of  the  rule,  from  the  way  in 


23 


which  it  was  framed — it  was  sufficiently  guarded 
by  the  "  three  days'  notice"  to  be  given  before  a 
question  could  be  reconsidered.  He  believed  the 
rule  would  be  found  exceedingly  convenient  by 
all  the  members.  He  had  known  members  vote 
in  the  affirmative  expressly  to  be  able  to  move  a 
reconsideration  directly,  and  to  press  that  whilst 
the  house  was  in  the  same  frame  of  mind,  so  that 
no  change  could  take  place — and  this  was  a  great 
abuse. 

The  rule  was  carried. 

19.  The  preceding  rules  shall  be  observed  in  committee 
of  the  whole  so  far  as  they  are  applicable,  except  so  much 
of  the  17th  rule  as  restricts  the  speaking  to  more  than 
twice.  A  call  for  the  ayes  and  noes  and  a  motion  to  ad- 
journ shall  not  be  applicable;  but  a  journal  of  the  pro- 
ceedings in  committee  shall  be  kept.  Carried. 

•20.  The  President  may  admit  such  and  as  many  report- 
ers within  the  bar  as  he  may  deem  proper.  Carried! 

All  the  rules  of  the  Committee,  therefore,  were 
adopted,  as  originally  reported. 

Mr.  WORDEN  moved  that  when  in  commit- 
tee of  the  whole,  a  quorum  should  not  be  present, 
that  fact  should  be  made  known  to  the  President. 

Mr.  WORDEN  withdrew  his  resolution,  but 
intended  hereafter  to  offer  a  resolution  to  the  ef- 
fect that  these  resolutions  thus  adopted,  should 
not  be  entirely  beyond  the  control  of  this  Conven- 
tion. 

A  communication  was  received  from  the  Sec- 
retary of  State,  enclosing  135  copies  of  the  Cen- 
sus of  the  State. 

The  committee  on  that  subject  reported  a  reso- 
lution that  600  copies  of  the  journal  of  the  Con- 
vention should  be  printed. 

This  resolution  and  report  was  adopted. 

Mr.  KIRKLAND  moved  the  consideration  of 
his  resolution  relative  to  the  call  on  county  trea- 
surers for  information. 

The  CHAIR  wished  members  to  preserve  their 
seats,  as  there  was  a  person  about  to  take  a  dia- 
gram of  the  House. 

Mr.  KIRKLAND'S  resolution  (offered  yester- 
day) relative  to  a  call  on  county  treasurers  for  the 
amount  of  moneys  paid  to  county  judges  was  then 
called  up. 

Mr.  KIRKLAND  made  this  motion  with  ^spe- 
cific object — to  ascertain  the  amount  paid  to  judg- 
es of  county  courts  for  judicial  services.  At  the 
suggestion  of  the  gentlemen  from  St.  Lawrence, 
Orange  and  others,  who  were  desirous  to  have 
still  further  information  in  reference  to  the  ex- 
penses of  county  courts,  he  proposed  to  amend  his 
resolution. 

AJr.  BASCOM"  said  that  to  ascertain  also  the 
expenses  of  the  circuit  courts,  he  would  offer  a 
resolution  calling  for  precisely  the  same  informa- 
tion in  relation  to  these  courts  as  that  of  the  gen- 
tleman in  relation  to  the  county  courts.  He  asked 
the  gentleman  to  accept  the  amendment. 

Mr.  KIRKLAND  had  no  objection  to  the  pro- 
curing of  any  information  that  might  be  required. 
He  was  apprehensive,  however,  that  his  resolu- 
tion might  be  so  loaded  down,  as  that  the  infor- 
mation could  not  be  received  in  time  for  action. 

Mr.  PERKINS  suggested  that  in  the  resolution 
as  amended,  there  were  some  questions  which  he 
apprehended  the  county  clerks  would  not  be  able 
to  answer.  As  the  accounts  were  kept  in  St. 
Lawrence,  he  knew  that  they  would  not  have  the 
means  of  answering  all  the  questions  by  their  re- 


cords. So  far  as  that,  in  respect  to  the  payment 
of  judges'  fees,  grand  and  petit  jurors,  &c.,  he  be- 
lieved the  county  clerks  could  answer.  But  in  re- 
lation to  the  expenses  for  lights,  fuel,  drawing  ju- 
rors, those  accounts  were  a  matter  of  audit  by  the 
boards  of  supervisors,  and  out  of  the  hands  of  the 
clerks. 

Mr.  KIRKLAND  said  that  'for  convenience 
sake,  he  would  move  that  his  resolution  and  all 
the  amendments,  should  be  referred  to  a  commit- 
tee of  five,  who  shall  be  required  to  report  to- 
morrow morning, 

Mr.  RHOADES  wished  to  know  if  we  were  to 
get  the  amount  of  damages  and  costs  separately 
stated  ? 

Mr.  KIRKLAND  said,  notexactly. 

The  following  is  the  resolution  of  Mr;  KIRK- 
LAND as  modified  by  him,  to  meet  the  wishes  of 
the  various  gentlemen,  who  offered  amendments 
to  it  yesterday  : — 

Resolved,  That  the  Secretary  of  the  Convention  be  di- 
rected to  address  a  letter  to  the  county  clerk  of  each  county 
in  this  State,  requesting  an  immediate  answer  to  the  fol- 
io wing  questions  : 

1st.  What  was  the  amount  allowed  during  each  of  the 
years  1844  and  1845,  to  the  judges  of  the  county  court  of 
your  county  as  compensation  for  attendance  at  court? 

2d.  What  during  the  same  period  was  the  amount  al- 
lowed for  fees  of  grand  jurors,  of  petit  jurors,  of  constables, 
of  crier,  of  poor  witnesses,  stating  each  separately? 

3d.  What  was  the  aggregate  expense  during  those  years 
for  said  county  courts,  of  drawing  and  summoning  jurors, 
lights,  fuel,  &c.,  for  the  court  rooms,  and  of  any  other  char- 
ges on  the  county  incurred  by  holding  these  courts? 

4th.  For  how  many  days  during  each  of  said  years  were 
said  county  courts  in  session? 

5th.  What  was  the  number  of  civil  causes  tried  at  said 
courts  in  each  of  said  years,  and  what  was  the  aggregate 
amount  of  verdicts  therein? 

Mr.  STRONG  pioposed  a  committee  of  8,  in- 
stead of  3  or  5 — one  from  each  Senate  district. 

This  was  accepted  by  Mr.  K.,  and  the  resolu- 
tion thus  modified,  was  carried. 

Mr.  PATTERSON  moved  that  the  Secretaries 
of  the  Convention  procure  diagrams  of  this  cham- 
ber, for  the  use  of  the  members*  Carried. 

Mr.  SHEPARD  moved  that  a  list  of  the  sala- 
ries of  all  judicial  officers  in  the  State  be  prepared 
and  submitted  to  this  Convention. 

This  resolution  was  referred  to  the  same  com- 
mittee of  eight,  as  the  last. 

Mr.  NICOLL  moved  a  resolution  to  the  effect 
of  obtaining  from  all  the  Judges,  &c.,  in  the  State 
the  amount  of  fees  received  for  what  is  called 
chamber  business. 

A  VOICE  :  '  They  won't  tell ! 

It  was  modified  so  as  to  include  Masters  and 
Examiners  in  Chancery,  and  referred  to  the  same 
committee  of  eight. 

Mr.  BROWN  moved  to  take  up  the  resolution 
relative  to  furnishing  the  members  with  newspa- 
pers. It  was  taken  up  and  passed,  nem  con. 

Mr  .CHATF1ELD  thought  it  time  to  take  up 
Mr.  JONES'  resolution  offered  yesterday,  relative 
to  a  committee  of  IS  to  prepare  the  order  of  busi- 
ness of  the  Convention: 

Mr.  SMITH  moved  to  adjourn.  Lost — ayes 48, 
noes  55. 

Mr.  JONES'  resolution  of  yesterday  was  then 
read. 

Mr.  CHATFIELD  moved  to  amend,  by  making 
the  number  17  instead  of  16. 

Mr.  JONES  accepted  the  modification. 


24 


Mr.  LOOMIS  thought  that  this  was  too  impor 
tant  a  matter  to  be  taken  up  just  at  the  hour  o 
adjournment,  and  he  therefore  moved  to  adjourn 

This  was  carried,  just  before  2  o'clock. 


THURSDAY,  (4th  day,}  June  4. 
Prayer  by  the  Rev.  Mr.  BATES. 
The  PRESIDENT  announced  the  committee  o 
Mr.  KIRKLAND'S  resolution,  relative  to  "  Count 
Court  expenses,"  &c.,to  consist  of  Messrs.  KIRK 
LAND,  BROWN,  HARRIS,  PERKINS,  SMITH,  BAS 
COM,  RICHMOND. 

Mr.  KIRKLAND  said  that  he  was  requested  b. 
the  chairman  of  the  committee  to  whom  was  re' 
ferred  the  subject  of  printing  the  constitutions 
the  several  States  (particularly  the  amended  ones 
for  the  use  of  the  members,  to  make  a  statemen 
for  the  information  of  the  convention.  He  ha( 
been  in  correspondence  with  a  person  in  Nev 
York,  named  Walker,  who  informed  him  that  h< 
(Mr.  W.)  was  now  in  process  of  printing  in  om 
book  all  the  existing  constitutions  of  the  severa 
States,  for  his  own  especial  purpose ;  andWalke 
had  sent  him  (Mr.  K.)  some  33  pages  of  his  new 
book  as  a  specimen  of  the  work.  Walker  agreec 
to  furnish  200  or  300  copies  bound  in  muslin  foi 
$1  a  copy  ;  and  he  would  have  them  ready  in  < 
week.  This  was  edited  by  a  gentleman  of  well 
known  talent,  named  Edward  Williams.  He  (Mr 
K.)  proposed  to  lay  these  pages  on  the  Clerk's 
desk,  so  that  members  could  see  and  examine  foi 
themselves.  The  committee  propose  to  repor 
that  the  convention  purchase  copies  of  this  work 
so  as  to  supply  each  member  with  one ;  becaus< 
doubtless  from  the  aggregate  wisdom  of  the  con- 
ventions of  28  States,  we  may  obtain  a  vast  amoun 
of  information  that  may  be  of  service  to  the  mem- 
bers of  this  convention.  And  the  committee  pro- 
pose also  to  have  another  volume  printed  uniform 
with  this,  which  shall  contain  the  constitutions 
of  the  Territories  connected  with  the  Union,  and 
of  others  that  are  likely  to  come  into  it;  also  the 
convention  acts  of  1845  and  of  1821 ;  the  names 
and  residences  of  all  delegates,  and  of  all  the  offi- 
cers of  the  convention;  together  with  all  the  va- 
rious statistical  information  which  can  be  collect- 
ed that  is  likely  to  be  of  service  to  this  conven 
tion.  He  would  lay  this  on  the  Clerk's  desk,  and 
request  in  the  name  of  the  committee  that  it  be 
accepted  as  an  excuse  for  not  making  a  report  this 
morning. 

It  was  accepted. 

Mr.  BROWN  then  moved  to  take  up  Mr. 
JONES'S  resolution  for  a  committee  of  17,  who 
should  consult  and  report  on  the  best  practicable 
mode  of  proceeding  to  revise  the  constitution. — 
If  the  convention  did  take  it  up,  then  he  believed 
that  the  honorable  gentleman  from  Herkimer 
(Mr.  LOOMIS)  had  the  floor.  The  motion  was  ta- 
ken up. 

Mr.  LOOMIS  said  that  he  would  merely  state 
to  the  Convention  a  few  of  the  particular  views 
which  he  had  entertained  in  regard  to  this  reso- 
lution; and  in  relation  to  which  the  mover 
(Mr.  JONES)  had  failed  to  assign  his  reasons  for 
offering.  This  resolution  was  very  comprehen- 
sive ;  and  in  some  respects  it  embraced  all  that 
which  should  be  done  by  the  body  of  the  conven- 
tion itself.  He  was  fearful  that  this  committee  if 
appointed  might  feel  called  upon  to  report  a  plan 


of  action — might  so  arbitrarily  divide  up  the  sub- 
jects to  be  considered— a>  to  place  the  matter 
comparatively  beyond  the  wholesome  and  legiti- 
mate control  of  the  convention  hereafter.     He 
could  scarcely  suppose  that  Mr.  JONES  had   such 
a  result  in  view  ;  but  it  looked  a  little  like  it, 
from  the  number  named.     The  committee  was  a 
very  large  one ;  a  body  of  17  was  large  enough 
for  purposes  of  legislation.     It  was  much   too 
large  for  mere  informal  movements ;  too  large  if 
it  was  intended  to  report  merely  specific  propo- 
sitions ;  and  yet  too  small  if  it  was  to  embrace  the 
whole  general  scope  of  the  subject  to  come  be- 
fore the  convention.    Any  member,  however  can 
offer  specific  propositions,  and  the  House  can  pass 
upon  them,  as  well  as  a  committee.     And  if  the 
committee  report  specific  propositions  they  have 
to  be  submitted  to  the  house  for  future  considera- 
tion.    It  would  be  much  better  to  submit  this 
whole  matter  to  the  house  itself  at  once  ;  and  then 
all  can  hear  and  have  a  voice   in  discussing  the 
subjects  that  are  to  be  considered.     Every  mem- 
ber is  sent  here  to  speak  for  and  to  represent  his 
constituents,  and  they  expected  them  to  speak 
themselves  in  their  behalf,  and  not  to  be  guided 
by  others.    Why  ask  us  then  to  delegate  these 
duties  to  a  committee  ?    We  ordinarily  form  com- 
mittees to  report  bills,  &c.   &c. ;  but  merely   to 
make    ordinary    simple    propositions,   as  to  the 
mode  of  proceeding  to  business,  we  do  not  want 
a  special  committee.     Let  the  house  resolve  itself 
into  a  committee  of  the  whole  on  the  Constitu- 
tion.    Then  let  each  man  get  up  and  state  his 
proposition.     Some  one  must  do  it  even  in  a  spe- 
cial committee.    And  why  not  as  well  do  it  here 
as   there  ?   for  after  all  it  has  yet  to   come  back 
here  and  to  be  agreed  upon  by  the  House.     He 
had  another  very  strong  objection  to  having  this 
committee  of  17.     Such  a  body,  composed  as  it 
.vould  be  of  the  best  talent  and  experience  in  the 
rlouse,  would  carry  too  much  weight  with  what- 
ever propositions  they  might  offer  for  our  future 
consideration.     This  influence  would  be  far  too 
strong  to  be  salutary.     But  a  naked  proposition 
"rom  a  single  individual  would  carry  comparative- 
y  little  weight  with   it.     It  would  go  merely  for 
vhatlt  was  worth.     Mr.   L.  presumed  that  this 
resolution  of  the  gentleman  from  New  York  (Mr. 
TONES)  is   taken  from  a  proposition  that  was  of- 
ered  in   the  Convention  of  1821,   by  Mr.  Rufus 
King;  which  was  adopted  instanter,  and  without 
a  moment's  consideration  as   to  its  results.     But 
t  was  no  sooner  adopted  than   several  members 
egretted  that  it  had  been  ;  and  thought  that  much 
he  better  course  would  have  been  to  have  taken 
he  subject  up  at  once  in  committee  of  the  whole 
louse.     Amongst  others,  Col.  Young  of  Saratoga, 
who  moved   a  reconsideration,   and  this  was  se- 
onded  by  Gen.  Root.     Peter  R.  Livingston  also 
Deeply  regretted  that  such  a  special  committee 
of  13)  had  been  so   chosen.     The  weight  there- 
ore  of  that  precedent  amounts  to  nothing.     And 
ven  that  committee  however  did  not  pretend  to 
ssume  the  power  of  dictating  what  course  should 
e  adopted  by  the  House  ;  they  did  not  see  fit  to 
o  aught  but  dissect  the  subject ;  they  propose  to 
ave  a  committee   on  the  judiciary  ;   another  on 
ic  executive  ;  another  on  the  elective  franchise ; 
another  on  the  financial  parts  of  the  Constitution, 
&c.,  &c.,  &c.    And  in  fact  they  proceeded  in 


25 


merely  the  same  way  that  an  individual  would  in 
committee  of  the  whole  House,  and  they  did  no 
more.  Now  for  the  mere  purpose  of  saying  or 
deciding  what  shall  be  done  or  what  shall  not  be 
done,  or  how  we  shall  proceed  to  conduct  our 
ess  here,  such  a  committee  most  assuredly 
is  not  necessary.  We  have  to  consider  and  to  pro- 
ceed direct  to  a  revision  of  the  Constitution  of 
the  St,ate  of  New  York.  Let  us  each  go  on  and 
act  independently  in  the  discharge  of  this  great 
duty  which  has  been  committed  to  our  individual 
care  ;  and  the  more  we  have  perfect  freedom  of 
discussion,  (which  always  prevails  in  the  commit- 
tee of  the  whole,)  the  better  we  shall  be  able  to 
come  to  a  proper  conclusion  on  the  subject.  We 
had  much  better  have  a  committee  of  the  whole 
at  once.  Some  might  apprehend  that  a  commit- 
tee of  the  whole  would  wraste  time  in  endless  dis- 
cussion and  leave  nothing  definite  at  last  to  act 
upon.  He  had  provided  against  this  ;  for  if  no 
one  «lse  would  move  on  the  subject,  he 
would  move  in  committee  of  the  whole  to 
refer  the  differen  portions  of  the  Constitution 
to  appropriate  committees.  He  had  prepared  a 
proposition  to  divide  the  subject  up  into  commit- 
tees ;  any  one,  it  is  true,  can  do  this  ;  and  if  no 
other  was.  prepared  he  would  submit  his  plan. 
Perhaps  it  would  be  better  after  all  to  present 
this  to  the  House  at  once  ;  and  to  state  his  views 
more  fully,  he  would  now  read  them  to  the  House. 
He  offere'd,  as  an  amendment  to  Mr.  JONES'  reso- 
lution, to  strike  out  all  after  the  word  "  Re- 
solved," and  insert  the  following  : 

Resolved,  That  a  committee  consisting  of  five  or  seven 
members  each  be  appointed  to  consider  and  report  on  the 
following  matters  respectively: 

1.  On  the  appointment,  Election,  Tenure  of  office  and 
compensation  of  the  Legislature. 

2.  On  the  organization,  tenure  of  office  and  compensa- 
tion of  the  Judiciary. 

3.  On  the  anointment  or  election  of  the  Judiciary  and 
of  all  State  officers,  whose  duties  and  powers  are  not  local, 
except  the  J^gislauire  and  judiciary. 

4.  On  the  appointment  or  election  of  all  officers,  whose 
powers  arid  duties  are  local,  and  their  tenure  of  office  and 
compensation 

5.  On  the  powers  to  be  vested  in  the  State  Legislature 
on  tae  same,  except  as  to  the  public  debt. 

6.  On  the  public  debt  generally,  including  restrictions 
on  the  power  of  the  legislature,  in  relation  thereto,  and  on 
public  revenue,  canals,  and  internal  improvements. 

7.  On  legislation  for  local  purposes,  and  on  the  powers 
-of  municipal  corporations  with  reference  to  debt  and  taxa- 
tion. 

3 .  On  banking  business,  and  on  incorporations  generally. 
9.  On  the  Elective  franchise,  and  the  qualifications  to 
vote  and  hold  office. 

All  that  he  could  say  was  that  these  were  his 
best  thoughts.  Every  other  individual  might 
have  his  own  propositions,  but  whether  this  was 
so  or  not  he  at  any  rate  should  propose  these.  He 
•I'd  not  design  going  into  any  discussion  of  them 
at  this  time,  but  wished  merely  to  suggest  the 
consideration  that  it  was  better  not  to  organize  a 
formidable  committee  with  extraordinary  powers, 
for  the  mere  purpose  of  suggesting  subjects  for 
the  consideration  of  the  Convention.  Each  mem- 
ber was  competent  to  do  this,  and  then  when  a 
vole  was  had  it  would  not  be  under  the  authori- 
tative influence  which  a  formidable  committee 
of  16  or  17  men  would  exercise.  He  would  move 
these  propositions  as  an  amendment  to  the  reso- 
lution and  then  ask  the  Convention  to  resolve  it- 
self into  a  committee  of  the  whole  on  the  Con- 
stitution, to  take  them  up. 


Mr.  BROWN  desired  to  express  his  obligations 
to  the  gentleman  from  New- York  (Mr.  JONES) 
for  introducing  this  resolution,  because,  although 
he  did  not  concur  with  him  as  to  the  propriety  of 
its  adoption,  it  would  serve  all  the  purposes  that 
such  a  proposition  should  serve — to  create'discus- 
sion  and  enquiry  on  this  subject.  He  regarded 
this  resolution  as  touching  one  of  the  most  im- 
portant, if  not  the  most  important  subject  that 
could  arise  for  the  consideration  of  this  Conven- 
tion at  this  time,  and  he  was  unwilling  for  one 
that  it  should  go  to  a  committee  of  16  or  17  or  of 
any  other  number,  without  having  first  passed 
through  the  ordeal  of  examination  and  discussion, 
for  the  purpose  of  eliciting  the  best  opinions  and 
judgment  on  the  floor  in  the  matter.  He  was  in 
a  great  measure  indifferent  as  to  the  ultimate  dis- 
position of  it — whether  it  should  go  to  a  commit- 
tee of  the  whole,  or  whether  all  the  proposi- 
tions after  having  the  various  opinions  of  gen- 
tlemen should  be  sent  to  a  committee.  What 
he  did  desire  most  earnestly,  and  deemed 
essential  was  a  full  and  free  expression  of 
opinion  and  judgment  upon  the  subject.  If 
these  propositions  go  to  a  committee,  what  is 
tobe'the  result?  In  effect,  it  is  to  enable  this 
committee  to  say,  in  a  resolution  or  report,  upon 

what  subject  the  Constitution  is  to  be  amended 

thus  placing  in  their  hands  one  of  the  most  im- 
portant questions  the  Convention  was  called  up- 
on to  decide,  at  the  outset.  He  knew  very  well 
that  he  might  be  told,  that  when  the  report  came 
in  that  it  could  be  amended.  He  was  sensible  of 
that — and  he  was  aware,  also,  that  every  gentle- 
man experienced  in  parliamentary  debates  and 
action,  and  feeling  a  degree  of  confidence  in  him- 
self, might  rise  up  and  make  his  proppsitions,but  if 
he  does,  he  has  to  encounter  the  weight  of  autho- 
rity which  this  committee  would  have,  and  gen- 
tlemen, too,  would  feel  a  reluctance  at  undertak- 
ing to  overthrow  such  a  report.  But  those  who 
know  what  it  is  to  take  a  seat  in  a  deliberative 
body  for  the  first  time,  unaccustomed  to  appear  as 
public  speakers — (and  this,  he  knew,  bore  down 
many  a  man  capable  of  instructing  his  fellow- 
men) — could  appreciate  the  difficulties  that  would 
occur.  He,  therefore,  concurred  with  the  gen- 
tleman from  Herkimer,  (Mr.  LOOMIS)  that  this 
question  should  be  referred  to  the  committee 
of  the  whole,  its  appropriate  place.  Then 
there  eould  be  a  free  interchange  of  opinion, 
and  efery  individual  could  make  his  propo- 
sition, without  having  it  put  down  before  it  was 
fairly  acted  upon.  He  hoped,  therefore,  the  a- 
mendment  would  prevail,  for  if  the  whole  funda- 
mental law  was  to  be  overturned,  and  an  entire 
new  instrument  substituted,  or  if  a  portion  of  the 
old  was  to  be  retained  and  a  portion  of  it  to  be 
amended,  let  us  know  the  opinions  of  members 
from  every  part  of  the  State,  on  the  subject.  He 
(Mr.  B.)  had  his  own  opinions  as  to  what  the  a- 
mendments  should  be.  He  might  differ  from  oth- 
er gentlemen,  and  if  he  did,  he  desired  to  know 
it,  and  upon  what  point.  Let  every  proposition 
be  submitted,  and  then  if  they  are  so  multifari- 
ous that  it  would  be  impossible  for  the  commit- 
tee of  the  whole  to  come  to  a  decision,  he  was 
willing  to  refer  it  to  a  committee,  having  had  the 
benefit  of  the  discussion  and  the  suggestions  of  the 
Convention.  There  was  another  consideration  to 
which  he  was  not,  and  he  trusted  no  gentleman 


26 


was  indifferent.  It  was  impossible  for  gentlemen 
to  conceal  from  themselves  or  the  public,  that 
there  were  two  great  parties  who  had  some  con- 
nection with  members  here — it  was  evident  in 
the  vey  organization  of  this  body — the  one  large- 
ly represented,  and  the  other  portion  not  so  large- 
ly. And  although  he  congratulated  himself  that 
there  had  been  evinced  so  little  of  party  feeling 
here,  to  disturb  the  good  feeling  and  harmony 
that  prevailed;  yet  it  was  due  to  the  minority, 
to  the  character  of  the  majority  themselves,  and 
to  the  success  of  the  deliberations  of  the  Conven- 
tion, that  all  the  steps  that  should  be  taken  at  the 
outset,  should  fully  respect  the  rights  of  the  mi- 
nority. He  therefore  desired  to  place  this  ques- 
tion where  every  gentleman  should  have  an  op- 
portunity to  be  heard  fully  and  freely.  Let  us, 
(said  Mr.  B.)  look  at  the  matter  a  little  further: 
Supposing,  the  committee  to  which  the  question 
should  be  referred,  should  undertake  to  say  that 
the  judicial  system  of  the  State  needed  no  amend- 
ment. It  certainly  was  an  extravagant  supposi- 
tion, for  he  supposed  that  a  sense  of  the  necessity 
for  its  amendment  prevailed  every  where.  But 
suppose  it  to  be  so — we  should  have  to  enter  up- 
on a  discussion  to  demonstrate  the  folly  of  such  a 
conclusion,  and  its  injustice  to  the  community. 
Suppose  again,  upon  the  question  of  suffrage, 
where  there  is  not  so  great  a  unanimity  of  opin- 
ion— is  the  committee  to  come  in  here,  and  en- 
tirely suppress  this  question?  This  no  man  de- 
sired. Let  all  the  propositions  be  submitted  here, 
and  allow  every  man  however  humble  and  unused 
to  public  speaking,  a  full,  free  and  ample  oppor- 
tunity to  make  any  suggestions  that  he  may  deem 
to  be  required.  He  (Mr.  B.)  therefore  concurred 
entirely  with  the  honorable  gentleman  from  Her- 
kimer,  that  if  any  gentleman  had  propositions  to 
make  he  should  make  them  here,  and  during  this 
discussion;  and  he  would  be  permitted  to  say  that  if 
the  sense  of  the  Convention  differed  from  his,  (Mr. 
B's)  and  they  should  decide  not  to  refer  this  matter 
to  a  committee  of  the  whole,  he  should  feel  it  his 
duty  whenever  the  question  was  settled,  to  ask 
that  the  committee  should  be  instructed.  But 
he  apprehended  the  Convention  would  not  reject 
the  proposition  to  have  these  questions  discuss- 
ed. In  all  legislative  bodies,  when  a  bill  is  re- 
ported, the  general  disposition  of  it  is  to  a  commit- 
tee of  the  whole.  In  the  House  of  Representa- 
tives, propositions  submitted  there,  especially  re- 
venue bills,  and  others  which  affect  the  Union  at 
large,  take  that  direction.  The  President's  mes- 
sage takes  the  same  direction,  and  for  the  purpose 
of  obtaining  elaborately  and  fully  the  considera- 
tion of  all  the  members  of  the  house.  And  when 
we  stand  here  to  say  what  changes  shall  be  intro- 
duced into  the  fundamental  law  of  the  state,  was 
it  not  a  question  of  greater  magnitude  and  impor- 
tance than  these.  He  apprehended  the  House  of 
Representatives  seldom  entered  upon  the  delibe- 
rations of  subjects  of  greater  magnitude  or  fraught 
with  results  of  greater  importance  to  posterity,  as 
that  upon  which  did  this  body  to-day;  and  before 
a  step  was  taken,  which  might  preclude  or  em- 
barrass enquiry  to  all,  there  should  be  great  hesi- 
tation and  deliberation.  Mr.  B.  said  he  had 
drawn  up  briefly  some  propositions,  which,  if  the 
house  should  refuse  to  go  into  committee  of  the 
whole,  he  would  take  the  liberty  of  proposing  by 
way  of  instruction  to  the  cwamittee  that 


should  be  raised  to  take^charge  of  the  subject, 
to  be  attached  to  the  resolution  of  the  honor- 
able gentleman  from  New- York,  (Mr.  JONES). 
They  did  not  embrace  all  the  subjects  he  had 
desired,  still  it  would  bring  the  question  before 
the  Convention  and,  perhaps,  be  the  means 
of  elicting  similar  propositions. 

Mr.  WARD  called  for  the  reading  of  the  origi- 
nal resolution. 

It  was  read  as  follows : 

"  Resolved,  That  a  committee  of  17,  two  from  each  se- 
nate district,  and  one  Irom  the  State  at  large,  be  appointed 
by  the  president  of  the  convention  to  report  as  to  the  best 
mode  of  proceeding  to  the  revision  of  the  Constitution  of 
the  State," 

Mr.  BROWN  :  Now  add  to  it  "with  instructions 
to  report  the  following  resolutions  :" 

Resolved,  That  so  much  of  the  Constitution  as  relates 
to  the  finances  of  the  State  and  the  powers  of  the  Legisla- 
ture to  create  debts  and  to  loan  the  credit  of  the  State,  be 
referred  to  a  committee  to  take  into  consideration  and  re- 
port what  amendments  if  any,  are  necessary  to  be  made  in 
respect  to  them. 

Resolved,  That  so  much  as  relates  to  the  power  of  the 
Legislature  to  appropriate  the  public  moneys  or  property 
for  private  or  local  purposes,  and  for  creating,  continuing, 
altering  or  renewing  any  body  politic  or  corporate,  and  to 
prescribe  the  powers,  privileges,  duties  and  obligations  of 
such  bodies  politic  or  corporate,  or  of  the  members  and 
stockholders  thereof,  be  referred  to  a  committee  to  take 
into  consideration  and  report,  Sic. 

Resolved,  That  so  much  as  relates  to  the  Judicial 
Department,  the  manner  of  appointment  or  electing  judi- 
cial officers,  and  the  tenure  and  duties  of  the  judicial  offi- 
cers, be  referred,  &c. 

5th.  That  so  much  as  relates  to  the  Executive  Department 
and  the  powers  of  appointment  to  office  (other  than  judi> 
cial  officers,  and  the  tenures  thereof,)  be  referred,  &c. 

6th.  That  so  much  as  relates  to  the  members  of  Assem- 
bly, the  tenure  and  duration  of  [the  legislative  office,  the 
division  of  the  State  into  separate  Senate  and  Assembly 
districts,  be  referred,  8tc. 

7th.  That  so  much  as  relates  to  provisions  for  future  al- 
terations and  amendments  in  the  Constitution,  be  refer- 
red, &c. 

8.  That  all  parts  of  the  Constitution  not  embraced  in 
the  preceding  resolution,  be  referred  to  a  committee,  to 
take  into  consideration  and  report  what  further  alterations 
or  amendments  should  be  made  therein. 

Mr.  WARD  apprehended  gentlemen  had  mis- 
conceived the  object  of  the  mover  of  the  resolu- 
tion. If  this  matter  was  referred  to  a  committee 
of  the  whole  for  consideration,  his  impression 
was  that  the  convention  would  be  detained  here 
in  discussing  various  propositions,  from  this  time 
until  the  end  of  July,  and  then  arrive  at  no  defi- 
nite conclusion.  He  was  perfectly  satisfied  from 
what  he  saw  about  him,  that  it  was  the  desire  of 
every  gentleman  to  get  the  several  propositions 
into  a  distinct  form,  and  it  seemed  to  him,  if  the 
resolution  was  adopted,  that  the  committee 
could  make  a  report  to-morrow  morning,  and 
if  gentlemen  felt  inclined,  they  could  take 
up  one  proposition  then,  and  begin  the 
discussion  at  once.  But  to  take  up  each 
proposition  which  might  be  offered  in  commit- 
tee of  the  whole,  he  did  apprehend  would  lead 
to  a  discussion  that  would  be  endless.  He  much 
preferred  the  course  recommended  by  the  gen- 
tleman from  Herkimer,  (Mr.  LOOMIS)  that  of 
settling  the  question  in  the  Convention — taking 
up  his  resolution  if  the  Convention  pleased, 
and  saying  so  much  as  relates  to  the  Judiciary 
shall  be  referred  to  one  committee,  so  much  as 
relates  to  the  Legislative  department  to  another, 
and  so  on  through  the  whole  of  the  resolutions. 
It  might  thus  be  done  simply  and  effectually,  but 
the  idea  of  going  into  committee  of  the  whole  and 


27 


discussing  these  propositions  would  lead  to 
endless  discussions.  Indeed,  he  would  refer 
to  the  Convention  which  framed  the  Federal 
Constitution  in  1787.  That  Convention  met  in 
the  early  part  of  May.  The  first  thing  heard  of 
their  proceedings  was  the  submission  of  a  provis- 
ion for  an  entire  Constitution  by  EDMUND 
RANDOLPH.  The  same  day  Mr.  PINCKNEY  sub- 
mitted another  entire  plan  for  a  Constitution  ;  a 
few  days  after,  Mr.  PATTERSON  of  New  Jersey 
submitted  another,  and  shortly  after  that  ALEX. 
HAMILTON  presented  his  constitution.  These 
were  referred  to  a  committee  of  the  whole,  as  is 
now  proposed.  The  first  taken  up  was  that  of  Mr. 
RANDOLPH'S,  and  according  to  his  (Mr.  W.'s)  re- 
collection, they  entered  upon  its  examination  sec- 
tion by  section,  clause  by  clause,  and  were 
engaged  upon  it  until  the  first  of  August  without 
making  any  progress;  and  then,  a  committee  was 
raised,  who  a  few  days  after  reported  to  the  con- 
vention. Then,  and  not  till  then  was  any  pro- 
gress made.  He  was  happy  to  see  now  the  har- 
mony  which  prevailed,  and  the  disposition  that 
Was  manifested  to  go  on  with  business.  The 
course  recommended  in  the  resolution  of  the  gen- 
tleman from  New  York,  (Mr.  JONES)  is  the  same 
as  that  pursued  by  the  convention  of  1823 .  What 
was  the  result  ?  In  a  little  over  two  months,  all 
their  labors  were  ended,  and  they  remodelled  an 
entire  new  constitution.  His  own  impression 
was  that  if  the  resolution  was  adopted,  and  a  com- 
mittee was  chosen — not  for  the  purpose  of  saying 
how  the  constitution  shall  be  amended,  but  to 
state  how  many  committees  should  be  raised, 
business  would  be  got  through  with,  and 
every  opportunity  given  for  free,  liberal  and  ho- 
norable discussion.  He  said  that  if  this  resolu- 
tion was  not  adopted,  then  he  hoped  the  resolu- 
tion of  the  gentleman  from  Herkimer,  (Mr.  LOO- 
MIS)  would  be  Let  each  resolution  be  taken  by  it- 
self, and  passed  -at  once,  without  going  into  com- 
mittee of  the  whole. 

Mr.  LOOMIS  moved  to  refer  the  whole  sub- 
ject to  a  committee  of  the  whole  on  the  constitu- 
tion— the  original  resolutions  and  the  amend- 
ments. While  up  he  would  make  a  single 
remark  in  reply  to  the  gentleman  from  West- 
chester  (Mr.  WARD.)  He  has  alluded  to 
the  proceedings  of  the  convention  which 
framed  the  federal  constitution,  and  has  shown 
that  in  that  convention  individual  propositions 
had  been  made  and  discussed  by  the  whole  body. 
That  one,  two,  three  and  four  whole  constitutions, 
were  presented  by  different  individuals.  That 
one  of  them  was  taken  up  and  formed  the  nucleus 
upon  which  that  wise  and  learned  convention 
proceeded  until  they  had  settled  nearly  every 
distinct  proposition.  Yes,  they  thus  settled  every 
proposition  in  the  manner  now  adopted  in  the 
constitution,  and  when  they  had  done  this  al- 
though it  did  take  them  until  the  first  of  August, 
they  were  then  prepared  with  the  foundation  of  a 
constitution.  Then  they  referred  it  to  a  committee 
for  arrangement,  the  proper  business  of  commit- 
tees, and  to  reduce  the  points  upon  which  they  had 
all  agreed  to  the  form  of  a  constitution.  The  pre- 
cedent (said  Mr.  L.)  was  precisely  analagous  to 
the  proposition  which  he  made,  that  the  discus- 
sion should  go  on  in  committee  of  the  whole  un- 
til all  questions  were  settled. 


Mr.  WARD  was  perfectly  ready  and  willing  to 
have  the  question  taken  on  the  first  proposition 
of  Mr.  LOOMIS,  now.  Let  us  settle  the  question 
at  once.  It  was  exceedingly  unwise,  to  say  the 
least  of  it,  to  waste  time  in  unnecessary  debate. 
The  question  could  be  settled  in  a  very  few  min- 
utes, and  he  wished  the  sense  of  the  Convention 
to  be  taken  on  it  at  once.  For  else  the  moment 
that  we  get  into  committee  of  the  whole,  the  en- 
tire subject  in  all  its  various  phases  will  come 
up,  and  we  shall  receive  50  propositions  at  least, 
and  to  the  discussion  on  these  there  will  certain- 
ly be  no  reasonable  termination.  Let  us  take  up 
then  the  gentleman's  first  resolution,  or  the  first 
part  of  his  proposition  and  pass  on  that,  then  take 
up  the  second  and  pass  on  that,  then  the  third; 
and  so  on  until  we  have  disposed  of  the  whole  of 
them.  Then  if  other  gentlemen  feel  desirous 
that  other  committees  should  be  raised  than  those 
named  by  the  gentleman  from  Herkimer,  let  them 
be  proposed  and  decided  upon;  but  do  not  let  us 
at  this  stage  of  the  proceedings  waste  time  by  go- 
ing into  a  committee  of  the  whole. 

Mr.  JONES  said  he  had  not  offered  his  resolu- 
tion without  reflection  or  consultation.  When 
ne  drew  it  up  originally,  it  was  much  wider  in  its 
scope  than  it  is  now.  And  as  he  first  drew  it,  in 
order  to  give  the  committee  more  scope  and  pow- 
er, he  had  proposed  that  its  members  should 
not  only  consult  and  report  what  was  the  best 
practicable  mode  of  proceeding  to  revise  the  Con- 
stitution, but  that  they  should  consult  and  report 
whether  it  would  best  meet  the  popular  will  and 
the  real  interests  of  the  people,  to  present  to  them 
an  entire  new  Constitution  for  their  approval,  or 
whether  amendments  only  to  that  Constitu- 
tion should  be  submitted  to  the  people.  He  had 
showed  this  to  the  gentleman  from  Onondaga  (near 
him)  in  its  original  shape,and  that  gentleman  sug- 
gested that  it  might,  if  so  worded,give  rise  to  a  pre- 
mature discussion,  and  that  the  Convention,  in  this 
early  stage  of  its  proceedings,  would  not  be  capa- 
ble of  deciding  whether  it  would  be  best  to  have 
an  entirely  new  Constitution,  or  only  amendments 
to  the  present  one  ;  and  that  gentleman  suggested 
that  he  should  strike  out  the  last  part  of  the  reso- 
lution, and  leave  the  first  part  as  it  is,  in  the  form 
he  had  originally  presented  it  to  the  Convention, 
making  it  merely  a  resolution  of  inquiry,  as  to 
the  best  mode  of  proceeding  to  the  revision  of  the 
Constitution.  He  concurred  with  the  gentlemen, 
adopted  his  views,  and  in  that  shape  presented 
the  resolution.  The  gentleman  from  Herkimer, 
with  great  fairness  and  ability,  (qualities  which 
are  eminently  characteristic  of  him,)  says,  that 
perhaps  he  (Mr.  J.)  was  influenced  in  the  course 
he  adopted  by  the  resolution  passed  in  the  Con- 
vention of  1821.  He  would  admit  that  he  was  so 
influenced;  and  he  found  on  looking  at  the  proceed- 
ings of  that  Convention,  (marked  as  they  were  by 
ability,  moderation,wisdom,  candor,  foresight,  and 
integrity,  which  he  hoped  this  Convention  would 
follow  as  nearly  as  possible,)  that  one  of  the  most 
distinguished  members  of  that  body  (Mr.  Rurus 
KING)  presented  a  somewhat  similar  resolution 
to  that  which  he  (Mr.  J.)  presented  here  ;  and  it 
met  with  the  general  concurrence  of  the  mem- 
bers of  that  Convention.  The  number  of  that 
committee  was  13,  instead  of  16,  as  he  (Mr.  J.) 
proposed.  In  the  discussion  which  followed  im- 


28 


mediately  afterwards,  as  to  the  mode  of  appoint- 
ing that  committee,  Col.  YOUNG  changed  his 
views  as  to  the  manner  in  which  he  thought  the 
Convention  ought  to  proceed  to  business  and 
said  he  thought  the  best  mode  would  be  to  refer 
the  matter  at  once  to  the  committee  of  the  whole. 
Gen.  ROOT  concurred  with  him  in  this  view. — 
But  these  views  were  instantly  met  and  over- 
thrown by  the  mover  (Mr.  KING.)  It  does  not 
appear  that  any  one  else  spoke  on  the  subject. 
After  these  gentlemen  had  spoken,  and  a  recon- 
sideration moved,  the  question  was  taken,  and 
the  motion  was  lost ;  and  in  fact  it  must  have 
been  by  a  large  majority,  for  the  vote  for  recon- 
sidering was  not  large  enough  to  be  stated,  and 
Mr.  KING'S  resolution  was  unanimously  adopted. 

Mr.  LOOMIS  here  read  from  the  "  Debates  in 
the  Convention"  a  statement  that  Mr.  P.  R.  LIV- 
INGSTON had  expressed  his  deep  regret  of  the 
course  which  had  been  adopted. 

Mr.  JONES  :  That  was  the  next  day,  after  the 
motion  to  reconsider  had  been  put  and  lost ;  and 
therefore  Mr.  L.'s  remarks  could  have  no  practi- 
cal application  thereto.  Mr.  L.  was  merely  sug- 
gesting to  the  then  President.  It  would  be  found 
also,  (said  M  J.)  that  that  committee  was  appoint- 
ed on  a  Friday  ;  on  Friday  afternoon  it  reported  on 
the  different  subjects  which  should  be  appropriat- 
ed to  certain  committees ;  on  Saturday,  the  Presi- 
dent named  his  appointments  to  those  committees : 
and  on  Monday  morning,  Gen.  ROOT  and  Gen. 
TALLMADGE  presented  reports  from  their  several 
committees  on  the  subjects  which  had  been  com- 
mitted to  them — the  latter  on  the  Council  of  Re- 
vision. This  shows  most  conclusively  how  ad- 
mirably this  plan  worked  for  expediting  the  bu- 
siness. It  showrs  that  we  could  scarcely  adopt  a 
wiser  or  more  judicious,  or  expeditious  prece- 
dent ;  and  this  influenced  him  in  presenting  the 
resolution,  and  he  hoped  that  excellent  precedent 
would  be  followed  in  this  convention.  The  gen- 
tleman from  Herkimer  objects  that  this  commit- 
tee was  either  too  large  or  too  small.  That  if  it 
was  to  embrace  subjects  generally,  it  was  too 
small — and  that  if  it  was  intended  merely  to  pre- 
sent specific  propositions,  that  it  would  be  found 
to  be  too  large.  He  (Mr.  J.)  trusted  that  the 
gentleman  from  Herkimer  would  be  found  not  to 
be  right  in  either  case.  If  the  report  of  the  com- 
mittee is  to  be  considered  as  binding  on  the  Con- 
vention, (which  the  gentleman  seems  to  urge  as 
an  objection)  then  most  certainly  it  was  not  too 
large.  If  he  designs  to  have  a  report  as  to  what 
part  of  the  constitution  shall  be  touched  or  amend- 
ed, and  what  part  shall  not  be  so  touched,  then 
certainly  it  is  not  too  large.  The  two  from  each 
Senate  district  would  bring  with  them  and  repre- 
sent, the  wishes  of  their  constituents  and  act  in 
accordance  with  the  popular  will;  and  we  should 
thus  have  a  proper  and  fair  combination  of  the 
views,  wishes,  antipathies  and  desires  of  the  peo- 
ple of  every  portion  of  the  State.  If  the  gentle- 
man wishes  to  have  the  committee  examine  what 
parts  of  the  constitution  it  is  necessary  for  us  to 
alter,  amend,  reform,  &c.,  and  to  report  fully  and 
fairly  thereon,  (for  such  is  what  he  intended)  then 
certainly  this  committee  will  not  be  too  large.  If 
it  is  to  present  these  subjects  properly  for  the 
consideration  of  the  Convention,then  it  is  not  too 
large.  What  \ve  wrant  is  a  proper  combination  of 


the  wisdom,  wants,  andintelligence  of  the  whole 
people,  and  .how  can  we  possibly  better  obtain 
this  desideratum  than  by  the  formation  of  such  a 
committee  composed  of  the  most  intelligent  and 
practical  men  from  every  section  of  the  State  ? — 
But  if  we  go  into  committee  of  the  whole,  in 
what  state  would  this  matter  be  found  ?  Wt- 
have  two  different  sets  of  propositions  before  u> 
now — there  is  that  of  the  gentleman  from  Herki- 
mer (Mr.  LOOMIS,)  and  a  different  one  from  the 
gentleman  from  Orange  (Mr.  BROWN).  And  he 
also  had  a  set  of  propositions  which,  in  that  case, 
he  should  present ;  and  he  dared  say  that  almost 
every  gentleman  here  has  a  set,  that  he  would 
wish  to  offer,  on  different  parts  of  the  consti- 
tution which  they  desire  to  see  amended* 
from  having  seen  their  practical  defects.  Now 
where  is  all  this  to  end  if  we  adopt  that  course  ? 
The  object  of  the  appointment  of  this  committee 
is  to  concentrate  all  the  various  propositions 
which  gentleman  have  to  offer  bearing  on  the  sub- 
jects that  are  to  be  taken  into  consideration. — 
When  theymake  their  report,we  shall  have  all  that 
is  valuable  in  these  propositions  presented  to  us  in 
a  concentrated  form  ;  and  we  shall  have  the  con- 
centrated wisdom  in  this  way,  of  the  whole  con- 
vention displayed  in  that  report.  But  the  gentle- 
man from  Orange  (Mr.  BROWN)  says  that  a  dif- 
ferent course  is  adopted  with  respect  to  the  Gov's. 
Message;  that  it  is  referred  at  once  to  the 
committee  of  the  whole.  Very  true.  But  the 
object  in  those  cases,  is  not  to  amend  those  docu- 
ments, but  to  discuss  them.  And  where  is  there 
a  better  place  to  discuss  them  than  in  committee 
of  the  whole.  But  let  it  be  remembered,  that  ex- 
perience shows  us  that  these  messages  generally 
remain  there  a  great  length  of  time — even  at  the 
last  session  of  the  legislature  we  saw  that  the 
Governor's  message  was  not  taken  out  of  the  com- 
mittee of  the  whole  until  3  or  4  weeks  before  the 
close  of  the  session,  tho'  referred  to  it  at  the  first 
or  seeond  week.  It  thus  remained  there  some  4 
months  for  prolonged  discussion  and  elaborate  ex- 
amination. And  does  the  gentleman  from  Her- 
kimer or  from  Orange,  wish  a  similar  course  to 
be  pursued  here  with  regard  to  the  Constitution 
of  the  State.  He,  Mr  J.  trusted  not.  What  is  his 
object  ?  He  hoped  that  the  main  design  of  every 
member  of  this  honorable  body  is  not  to  consume 
precious  time  in  needless  discussion  of  the  Con- 
stitution—but  that  their  main  object— their  sole 
and  earnest  desire  is  so  effectually  and  judicious- 
ly to  amend  it,  as  to  secure  to  their  constituents 
additional  security  and  happiness,  and  to  them- 
selves the  lasting  thanks  of  the  whole  community. 
The  proper  place  for  discussion  it  is  true,  is  the 
committee  of  the  whole.  But  it  cannot  be  pro- 
perly discussed  until  we  have  the  reports  of  thi^ 
committee,  and  the  subsequent  reports  of  the 
various  committees  appointed  upon  their  sug- 
gestion. And  when  these  shall  all  have  given 
their  concentrated  talent,  energy,  industry  and 
wisdom?. to  the  consideration  of  the  various  sub- 
jects submitted  to  them,  then  there  will  be  am- 
ple room,  ana*. time  enough,  and  the  proper  place 
thoroughly  to  discuss  the  result  of  their  labors. 
With  regard  to  the  proposition  of  the  gentleman 
from  Orange,  to  instruct  the  committee  in  rela- 
tion thereto — if  his  proposition  should  be  adopt- 
ed— to  report  particular  subjects  for  reference — 


29 


all  he  (Mr.  .1.)  could  ask  was  that  the  commit- 
tee may  not  be  instructed  to  report  any  gentle- 
man's proposition  in  particular.  Let  the  matter  be 
guarded  carefully  in  this  respect — let  all  send  up 
their  individual  propositions  to  the  President — 
let  these  be  given  to  the  committee  of  seventeen; 
leave  them  to  discuss  them  with  that  ability  and 
candor  which  they  will  of  course  possess;  and 
then  let  them  report  to  this  Convention,  that 
which  in  their  judgment  is  the  wisest  and  best. 

Mr.  LOOMIS  said  that  he  had  moved  his  pro- 
position as  an  amendment  to  the  resolution  of  the 
gentleman  from  New  York,  (Mr.  JONES,)  and  not 
for  the  purpose  of  committing  the  Convention  to 
any  particular  line  of  action.  He  wished  to  test 
the  sense  of  this  question  merely,  by  taking  the 
question  as  between  the  special  committee,  or  re- 
ferring from  the  committee  of  the  whole  the  vari- 
ous parts  of  the  Constitution  to  the  several  appro- 
priate committees.  He  would  therefore  move  the 
first  branch  of  it  first,  and  if  that  was  adopted, 
then  he  would  propose  immediately  to  take  up 
the  balance  of  it. 

Mr.  WILLARD  wished  the  original  resolution 
to  be  read  again.  (It  was  read.)  He  was  satis- 
fied that  it  proposed  merely  that  a  committee  shall 
report  upon  the  best  plan  for  expediting  their 
business.  He  thought  it  better 'to  let  this  com- 
mittee report  on  some  plan  to  bring  us  at  once 
right  to  business;  all  this  discussion  is  irrelevant, 
it  amounts  to  nothing.  It  has  nothing  to  do  with 
the  matter.  He  preferred  to  have  the  resolution 
of  the  gentleman  from  New- York,  (Mr.  JONES,) 
put  at  once ;  and  then  to  go  on  with  our  busi- 
ness ;  cease  all  this  idle  and  random  talk,  and  dis- 
pose of  the  subject  in  a  manner  that  becomes  us. 

Mr.  CAMPBELL  P.  WHITE,  offered  a  sub- 
stitute, which  he  thought  would  amicably  ar- 
range the  whole  matter : 

Resolved,  That  a  committee  be  appointed  to  take  into 
consideration  f  nd  report  the  manner  in  which  it  is  expedi- 
ent to  proceed  with  the  business  of  this  Convention,  in  or- 
der that  such  alterations  in  and  amendments  to  the  Con- 
stitution may  be  made,  as  the  rights  of  the  people  demand. 

Mr.  TILDEN  was  conscious  that  the  -natural 
predisposition  in  this  body  would  be  to  follow  the 
course  pointed  out  by  his  colleague  (Mr.  JONES.) 
It  had  had  the  sanction  of  a  good  precedent  in  be- 
ing adopted  by  a  previous  Convention,  and  it  ap- 
peared very  plausible  also,  by  holding  out  a  pros- 
pect of  proceeding  directly  to  the  subject  of 
their  deliberations,  without  useless  discussion. — 
But  in  regard  to  the  effects  it  will  have  upon  the 
deliberations  of  this  body,  he  deemed  it  a  matter 
of  the  highest  importance  for  us  to  settle  at  once, 
and  to  settle  correctly.  The  usual  parliamentary 
course  with  regard  to  the  President's  and  Govern- 
or's messages  was  to  refer  them  to  the  committee 
of  the  whole ;  but  not  for  the  purpose,  as  his  col- 
league had  alleged  or  supposed,  of  a  rambling 
discussion,  but  to  distribute  their  several  parts  to 
appropriate  committees,  constituted  by  order  of 
the  House  for  the  consideration  of  the  subject 
matter  of  those  documents,  in  a  parliamentary 
manner.  We  may  safely  presume  in  this,  as  in 
similar  cases,  that  parliamentary  usages  have 
some  significancy  and  some  utility;  and  he 
thought  that  if  any  gentleman  now  entertained 
any  doubts  on  this  subject,  that  before  the  end  of 
the  Convention,  he  would  find  this  to  be  the 
right  and  proper  course.  The  first  thing  they 
ought  to  do  in  order  to  expedite  business  and  to 


come  to  a  satisfactory  conclusion  was  to  refer  all 
the  matters  on  which  we  arc  to  act,  to  appropriate 
committeess,  and  in  order  properly  to  effect  this 
important  object,  it  is  highly  necessary  and  in- 
dispensable that  we  should  have  a  careful  and 
accurate  classification  of  all  these  matters.  If  we 
do  not — if  we  commence  with  an  imperfect  clas- 
sification— we  shall  find  ourselves  wandering  in 
confusion  through  them  unto  the  close  of  the  ses- 
sion. We  had  better  know  at  the  outset  what  it 
is  to  be  proposed  for  us  to  consider.  We  had  bet- 
ter go  at  once  into  committee  of  the  whole,  where 
every  gentleman  here  can  present  any  proposition 
he  has  to  offer,  state  his  views  thereon  fully,  and 
suggest  any  mode  of  classification  he  may  wish  to 
have  made.  Then,  when  suggestions  have  been 
fully  made  and  freely  discussed  for  two  or  three 
hours,  or  a  day  or  two,  we  will  readily  be  able 
to  come  to  a  satisfactory  conclusion  as  to  the 
course  to  be  adopted ;  or  if  there  should  be  found 
nay  difficulty,  we  can  refer  them  to  the  appropri- 
ate committees.  He  sustained  this  course,  because 
it  would  facilitate  the  transaction  of  business, 
because  it  would  give  a  full  and  complete 
classification  of  the  business,  or  be  likely  to  do 
so,  and  because  it  would  enable  the  President, 
when  he  comes  to  form  the  committees,  to  distri- 
bute them  in  such  manner  as  to  submit  to  their 
consideration  all  the  subjects  upon  which  the 
Convention  is  called  to  act.  There  is  a  still  more 
important  point  of  view  in  which  this  subject  is 
to  be  considered,  and  it  is,  that  the  action  of  this 
committee  will  be,  to  a  considerable  extent,  in 
part  restrictive  of  the  subjects  for  the  considera- 
tion of  this  body,  not  directly,  not  necessarily  in 
terms,  but  in  its  inevitable  effects.  Suppose  in 
the  committee,  a  majority  of  it,  composed  of  nine 
individuals,  think  that  a  particular  proposition 
is  not  of  sufficient  importance,  or  is  not  sufficient- 
ly desirable,  to  justify  them  in  raising  a  commit- 
tee for  the  purpose  of  its  consideration ;  they 
therefore  form  a  classification  which  does  not 
embrace  the  subject,  and  thus  have  nine,  perhaps 
seventeen,  of  the  most  influential  members  of  this 
body  been  committed  to  the  opinion  that  the  sub- 
ject ought  not  to  be  considered.  From  what  little 
experience  he  (Mr.  T.)  had  been  "enabled  to 
have  in  parliamentary  proceeding,  he  thought 
that  any  proposition  in  which  his  constituents 
were  interested  would  have  25  per  cent,  at 
least,  less  of  a  chance  for  consideration  by 
this  body,  if  the  committee  should  happen  to 
form  an  unfavorable  judgment  in  relation  to 
it.  And  here,  without  any  discussion,  without 
consideration,  without  even  any  suggestion  of  the 
various  propositions  upon  which  we  may  be  call- 
ed upon  to  act,  it  is  proposed  to  submit  the  whole 
action  of  this  body,  in  a  considerable  degree,  to 
the  entire  power  of  a  committee  composed  of 
some  seventeen  of  its  members.  His  (Mr.  T.'s) 
friend  and  colleague  from  New  York  (Mr.  JONES) 
said  that  by  the  proposition  as  originally  drawn 
it  was  intended  that  this  committee  should  con- 
sider and  report  upon  what  subject  it  was  expe- 
dient for  this  Convention  to  act,  but  that  upon 
consultation  with  other  gentlemen  he  modified  it 
by  striking  out  that  part  of  it.  His  (Mr.  T.'s)  ob- 
jection to  the  form  in  which  the  resolution  now 
stood,  was,  that  although  not  in  terms,  yet  cer- 
tainly it  had  in  substance  to  a  large  degree  the 
same  effect.  And  if  his  friend  had  been  dis- 


30 


posed,  as  he  would  not  believe  he  was,  to 
limit  the  range  of  discussion  and  of  ac- 
tion in  this  body,  he  would  more  wisely  and 
certainly  have  accomplished  his  object  by  his 
present  proposition,  the  effect  of  which  is  not 
likely  to  be  seen  and  appreciated,  than  in  the 
form  in  which  it  was  originally  made.  There  is 
great  reason  to  fear  that  the  effect  of  this  course 
of  proceeding  would  to  some  extent  at  least,  be  to 
organize  an  inferior  body  within  the  convention, 
and  if  any  man  here  has  seen  the  effect  of  the 
united  and  concerted  action  of  15  or  20  men  in  a 
body  of  this  kind  he  can  judge  what  may  be  the 
effect  of  it.  It  would  have  to  some  degree  the 
effect  of  the  application  of  the  caucus  system  to 
the  deliberations  here.  It  was  for  this  reason 
he  was  opposed  to  it.  He  (Mr.  T.)  came  here 
resolving  to  have  the  widest  latitude  for  considera- 
tion and  discussion  of  propositions  whether  adopt- 
ed or  not.  If  15  or  20  men  in  this  convention 
might  think  a  particular  proposition  ought  to  be 
adopted,  there  should  be  constituted  some  appro- 
priate committee  to  which  the  question  should 
be  referred,  by  whom  it  might  be  considered,  and 
presented  to  the  convention,  on  free  and  equal 
terms  with  any  and  every  other  proposition  sub- 
mitted for  deliberation.  Take  a  possible  case  of 
one  question  on  this  classification.  There  are  a 
considerable  number  of  persons  who  suppose  that 
the  rights  of  property  of  half  the  community 
are  not  sufficiently  protected  by  existing  laws, 
who  think  that  the  same  object  which  by  a  re- 
fined and  complicated  system  of  artificial  law, 
is  secured  to  the  few  who  are  wealthy  enough  to 
pay  its  price,  should  be  given  for  a  common  right 
without  price  to  every  member  of  the  community. 
Who  think,  in  a  word,  that  what  is  accomplished 
in  regard  to  the  separate  property  of  married  wo- 
men by  a  system  of  trust,  should  be  plainly  and 
openly  accomplished  by  the  ordinary  law  of  re- 
medy. Suppose  an  organization  in  which  no  one 
question  of  this  kind  should  be  appropriately  re- 
ferred. Is  it  to  be  supposed  that  individuals  of  this 
Convention  will  be  so  wisely  distributed  among 
these  several  committees,  or  that  propositions  by 
individuals  would  stand  an  even  chance,  as  though 
they  had  been  argued  at  the  commencement  of 
the  organization.  He  apprehended  not. 

One  word  as  to  the  despatch  of  business.  It 
seemed  to  him  that  if  a  committee  was  formed  as 
proposed  in  the  first  instance,  upon  bringing 
their  report  into  the  Convention,  the  question 
will  then  arise  on  their  report,  whether  it  should 
be  amended.  Any  gentleman  who  has  a  proposi- 
tion to  make,  which  he  shall  not  deem  fairly  in- 
cluded in  the  organization  proposed,  could  then 
offer  the  proposition  or  some  amendment  to  pro- 
vide for  it,  as  an  amendment  to  the  report  of  this 
committee,  and  the  Convention  might  then  have 
at  least  as  long  a  discussion,  and  in  all  probabili- 
ty a  longer  one  than  if  gentlemen  had  been  al- 
lowed free  latitude  for'discussion  for  a  day  or  two, 
without  being  committed  to  any  particular  course 
of  action.  He  did  not  mean  to  say,  and  it  would 
certainly  not  be  so,  that  the  propositions  would 
not  have  an  equal  chance  for  adoption,  but  that 
there  would  be  a  larger  chance  for  a  struggle  for 
their  adoption.  Alf  that  would  be  gained  would 
be  a  longer  discussion  with  a  less  desirable 
mode  of  disposing  of  business.  Undoubtedly 


there  would  be  propositions  with  instructions 
upon  questions  on  which  gentlemen  were  suffi- 
ciently prepared  to  make  them,  and  much  time 
would  thereby  be  consumed.  It  was  very  clear 
that  much  more  time  would  thus  be  consumed  than 
even  by  the  mode  proposed  by  the  gentleman 
from  Herkimer.  If  it  should  so  happen  that  un- 
der this  mode,  some  slight  indication  of  the  opin- 
ions of  members  should  be  given,  although  he 
did  not  suppose  it  was  desired  to  go  into  a  gene- 
ral discussion,  he  should  not  for  one  regret  it.  It 
would  tend  very  much  to  inform  the  Chair  in  so 
forming  the  select  committees,  as  to  represent  all 
the  various  opinions  on  subjects.  In  every  re- 
spect he  thought  it  would  be  the  most  preferable 
mode  in  which  one,  two  or  three  days  at  the  com- 
mencement of  the  session  could  be  expended. 

Before  he  concluded,  he  ought  perhaps  to  cor- 
rect one  misapprehension  into  which  his  col- 
league had  fallen,  as  to  the  course  pursued  by 
the  present  House  of  Assembly  in  reference  to 
the  Governor's  message.  It  was  true  that  at  the 
commencement  of  the  session  the  message  was 
referred  to  a  committee  of  the  whole,  and  that 
some  parts  of  it  were  not  taken  out  of  that  com- 
mittee until  nearly  the  close  of  the  session.  But 
all  the  material  parts,  all  on  which  discussion 
and  action  were  had,  were  taken  from  it  within 
the  first  month.  In  that  case  he  was  averse,  as 
he  was  now,  to  going  into  a  general  discussion  in 
that  committee.  He  thought  it  would  be  wiser 
to  refer  originally,  and  to  discuss  the  specific 
propositions.  He  thought  now  that  after  there 
had  been  discussion  enough  to  enable  a  classifica- 
tion of  the  propositions,  it  would  be  wiser 
to  refer  them  to  special  committees  than 
to  go  into  a  general  discussion;  but  for  the 
purpose  of  an  accurate,  comprehensive  clas- 
sification, propositions  from  every  member 
should  be  freely  received.  There  is  in  this 
case,  stronger  reasons  than  in  that  of  the 
Governor's  message.  There  all  the  subjects  upon 
action  was  to  be  had,  were  contained  in  the  doc- 
ument, and  it  was  but  a  brief  labor  to  analyze,  se- 
parate and  refer  its  various  parts.  Here,  there 
were  a  great  many  propositions  not  to  be  found  in 
the  Constitution— as  the  provision  in  regard  to 
State  debts — and  it  was  important  therefore,  that 
every  member  should  have  an  opportunity  of  sug- 
gesting the  subject  on  which  he  might  deem  it 
proper  for  the  Convention  to  act.  When  that 
was  done,  if  there  was  any  difficulty  in  coming  to 
definite  conclusions  in  committee  of  the  whole, 
they  could  readily  adopt  resolutions  referring  the 
various  propositions  to  a  select  committee,  or 
when  the  committee  rose  and  got  into  the  house 
refuse  leave  for  it  to  sit  again,  and  then  refer  the 
subjects  to  a  committee.  The  committee  would 
then  be  informed  of  the  disposition  of  most  of  the 
individuals  of  the  Convention,  and  would  be  en- 
abled to  make  such  a  classification  as  would 
meet  the  approbation  of  nearly  the  entire  body, 
and  enable  the  Convention  to  proceed  to  business 
in  the  most  intelligent  and  expeditious  manner. 

Mr.  SWACKHAMER  rose  to  make  an  enquiry 
— to  ascertain  the  question  now  before  the  Con- 
vention? If  he  understood  it  aright  he  was  incli- 
ned to  the  opinion  that  the  gentleman  last  up  had 
not  been  speaking  to  the  question. 

The  PRESIDENT  stated  the  question  to  be  on 


31 


amending  the  original  resolution  by  substituting 
the  proposition  of  Mr.  LOOMIS. 

Mr.  SWACKHAMER  thought  then  that  the 
question  of  reference  was  not  involved  in  that 
motion.  To  prevent  this  random  discussion  he 
would  move  that  the  whole  subject  be  referred  to  a 
committee  of  the  whole  on  the  constitution,  then 
this  discussion  he  apprehended  would  be  in  order. 

Mr.  W.  TAYLOR  said  that  it  was  his  intention 
not  to  have  said  anything ;  but  having  been  inci- 
dentally alluded  to  as  having  been  consulted  as  to 
the  original  resolution  by  the  gentleman  from 
New- York  (Mr.  JONES),  it  was  perhaps  due  to 
himself  that  he  should  explain  his  relationship, 
so  far  as  he  had  any  to  it.  The  resolution,  as  the 
gentleman  had  correctly  stated,  was  submitted  to 
(him)  the  gentleman  from  Onondaga.  It  was  laid 
before  him  and  he  read  it.  It  was  a  subject  upon 
which  he  had  not  much  reflected,  but  he  knew  the 
course  taken  by  the  Convention  of  1821,and  deem- 
ing that  course  suitable  and  proper,  aid  supposing 
that  the  action  of  this  special  committee  would  be 
very  limited,  he  suggested  to  the  gentleman  to 
strike  out  all  that  would  be  likely  to  give  rise  to 
debate,  in  order  to  present  the  simple  proposition 
of  appointing  a  committee  for  the  purpose  of  bring- 
ing the  matter  that  had  called  the  Convention  to- 
gether, in  a  suitable  shape  before  them  for  their  ac- 
tion. It  has  been  stated  that  it  was  the  practice  of 
Congress  and  of  the  Legislature  to  go  into  commit- 
tee of  the  whole  on  the  Message,  and  in  that  com- 
mittee to  refer  the  various  topics  on  which  it  trea- 
ted, to  appropriate  committees.  But  what  is  the 
condition  here  ? — we  have  no  such  committees. 
His  idea  was,  that  it  was  proper  to  appoint  a  com- 
mittee for  the  purpose  of  designating  the  various 
committees  to  which  different  subjects  ought  to  be 
referred,  which  would  occupy  but  a  short  time. 
When  these  committees  were  reported  to  the  Con- 
vention, if  ii  \vas  thought  advisable  to  go  into 
committee  ri  the  whole,  for  the  purpose  of  dis- 
tributing the  various  parts  of  the  Constitution,  it 
would  be  proper  to  do  so.  He  had  no  objection 
if  gentlemen  wished  to  discuss  these  questions  of 
Constitutional  Reform,  and  to  give  their  views, 
that  they  should  take  this  opportunity,  or  go  now 
into  committee  to  do  so.  He  was  for  the  broadest 
latitude  of  debate,  and  he  was  for  taking  no  steps 
that  would  curtail  it:  But  it  appeared  to  him 
that  a  committee  of  eight  would  be  a  sufficient 
number  to  point  out  the  various  committees  which 
should  be  appointed.  And,  afterwards,  if  all  the 
questions  that  should  arise  could  not  be  referred 
to  these  standing  committees,  as  they  might  be 
termed,  it  would  be  very  easy  and  proper  to  raise 
select  committees.  It  seemed  to  him,  that  if  the 
committee  was  limited  in  its  duties  to  the  sim- 
ple matter  of  designating  these  committees,  and 
made  them  numerous  enough  to  cover  the  whole 
ground^  that  then  the  Convention  could  go  in- 
to committee  of  the  whole  on  the  Constitution, 
and  there  refer  the  various  parts  of  the  Constitu- 
tion to  such  committees  as  might  be  deemed  pro- 
per. 

Mr.  O'CONOR  had  listened  very  attentively 
to  all  the  arguments  that  had  been  offered  pro. 
and  con.  on  this  question  of  reference  to  a  com- 
mittee, and  although  unable  to  bring  to  his  aid, 
in  forming  a  judgment  upon  it,  any  amount  of 
parliamentary  learning  and  law,  yet  he,  as  a 


member  of  this  body — the  question  being  treated 
as  one  of  some  importance — felt  bound  to  express 
his  views  upon  it.  They  might  be  in  some  re- 
spects different  from  any  he  had  heard  expressed 
by  any  one  gentleman,  though  perhaps  not  essen- 
tially, from  a  true  view  of  all  the  arguments  pre- 
sented on  all  sides.  He  understood  the  proposi- 
tion to  be  very  analagous  to  the  first  important  pro- 
position connected  with  our  organization — with 
which  we  commenced  this  session — the  estab- 
lishment of  certain  rules  of  order.  We  have  a 
vast  subject  spread  before  us. — and  how  to  ap- 
proach that  subject  is  the  question.  To  take  a 
view  of  the  whole  of  it  at  once  was  impossible — 
where  we  shall  commence  and  how  we  shall  pro- 
gress is  the  question  now  before  us.  What  me- 
thod should  be  adopted  for  the  purpose  of  giving 
our  judgments  as  to  the  place  at  which  we  should 
commence,  and  the  manner  in  which  we  should 
progress  in  traversing  the  whole  of  this  vast  sub- 
ject. Now,  in  relation  to  the  appointment  of 
committees,  he  had  entertained  precisely  the 
opinions  which  were  expressed  by  the  gentle- 
men who  are  opposed  to  the  reference  to  this 
committee  of  17,  and  yet  he  was  in  favor  of  the 
appointment  of  that  committee.  And  to  make 
himself  understood,  it  might  be  somewhat  im- 
portant to  look  at  the  two  propositions  now  be- 
fore us  and  see  in  what  consisted  the  distinc- 
tive character  of  each.  The  first  proposition  was 
an  open,  general  one,  that  it  be  referred  to  a  com- 
mittee to  consist  of  a  certain  number  of  persons 
from  each  Senate  district,  to  lay  before  the  Con- 
vention a  plan  of  operation.  That  is  the  propo- 
sition upon  the  one  side.  That  upon  the  other 
is,  that  this  Convention  do  now  in  its  collective 
capacity  proceed  to  the  classification  of  subjects, 
and  to  the  appointment  of  committees,  to  whom 
these  particular  subjects  shall  be  referred.  Now 
let  us  look  at  what  would  be  the  proper  course  of 
operation  of  the  first  committee  proposed,  and 
what  it  would  be  under  the  appointment  of  the 
several  classes  of  committees  proposed.  He 
should  infer,  if  this  matter  was  submitted,  ac- 
cording to  the  proposition  of  his  colleague,  as 
amended  by  another,  to  the  committee  of  17,  it 
would  become  them  to  determine  whether  the 
Constitution  should  be  divided,  the  amendments 
expected  to  be  presented,  classified  and  referred 
to  distinct  committees,  or  whether  the  proposi- 
tions should  be  discussed  before  the  Convention 
in  Committee  of  the  whole  in  the  first  instance. 
Or  whether  a  plan  might  not  be  adopted  by  which 
both  modes  of  proceeding  could  be  introduced 
and  the  advantages  of  each  secured.  That  is  the 
duty  of  the  large  committee.  They  would  bring 
us  a  classification,  and  we  could  vary  it  according 
to  our  good  judgment.  It  would  also  be  the  duty 
and  privilege  of  any  member  who  might  think 
they  had  left  out  some  important  point,  to  bring 
forward  a  distinct  proposition,  or  a  modification. 
As  for  instance,  in  regard  to  the  property  qualifi- 
cation, to  be  abolished  in  all  instances,  in  regard  to 
voting  or  holding  office,  or  any  other  of  the  nu- 
merous plans  that  have  been  proposed,  it  would 
be  competent  for  any  one  to  move  such  a  proposi- 
tion and  to  have  it  properly  referred.  This  com- 
mittee appointed  to  chalk  out  a  course  of  proced- 
ure, would  doubtless  secure  to  us  the  appoint- 
ment of  all  proper  committees  and  also  a  proper 


32 


rule  of  order  and  a  proper  classification  and  dis- 
position of  all  subjects  that  had  not  otherwise 
been  correctly  and  distinctly  classified,  and  give 
a  construction  to  that  classification  which  should 
regulate  it  hereafter.  And  we  might  argue  upon 
any  broad  and  general  proposition  before  it  went 
to  such  committee,  and  so  greatly  curtail  their  la- 
bors, reducing  the  same  to  a  mere  mechanical 
duty.  The  amendment  of  Mr.  LOOMIS  is  open  to 
this  objection ;  a  single  gentleman  here  executes 
the  duties  that  ought  to  employ  a  number  of 
minds.  Mr.  L.  for  instance,  offers  a  plan  of  his 
own,  and  makes  a  classification  for  himself.  Ev- 
ery other  member  may  do  the  same  on  his  owrn 
individual  responsibility.  But  how  much  more 
safe  and  satisfactory  the  other  mode  !  We  shall 
get  a  much  better  classification  by  having  the  sub- 
ject discussed  by  a  number  of  minds,  than  by  one ; 
and  we  shall  have  progressed  a  great  way  in  our 
work  when  we  shall  have  got  the  opinion  of  a 
committee  of  several  gentlemen  united  in  the 
classification  of  even  one  or  two  subjects;  for  he 
believed  and  hoped  that  at  this  early  stage  every 
gentleman  is  influenced  by  nothing  but  good  mo- 
tives and  a  desire  to  come  forward  in  a  manly  and 
honorable  manner  to  expedite,  and  not  embarrass, 
the  business  of  the  Convention.  Mr.  LOOMIS 
proposes  that  at  the  outset  the  whole  body  should 
proceed  to  classify.  That  would  be  exceedingly 
difficult.  We  should  have  1000  propositions  and 
conflicting  opinions.  No  gentleman  should 
thrust  his  individual  views  before  this  house  un- 
til the  proper  order  of  proceeding  shall  have 
been  settled.  Nor  should  opinion  be  forestalled 
by  the  weight  of  any  committee  report.  A  small- 
er committee  might  answer,  one  from  each  sen- 
ate district,  and  thus  let  the  matter  be  brought  in 
a  matured  shape  before  us.  He  thought  it  exceed- 
ingly advisable  that  when  we  came  to  appoint 
committees  for  classified  subjects,  that  each  mem- 
ber should  have  an  opportunity  of  advocating  his 
amendment,  before  either  a  large  or  a  small  com- 
mittee should  have  had  an  opportunity  to  report  on 
or  to  forestal  opinion  on  that  point.  He  did  not 
at  all  fear  that  even  a  committee  of  17  would  over- 
awe any  member,  and  he  trusted  that  no  commit-, 
tee  would  band  themselves  into  a  party  to  sustain 
any  particular  report  they  might  make.  He  was 
in  favor  of  a  committee  of  8  or  16  to  call  out  a 
plan  of  proceeding  to  business  as  under  Mr. 
JONES'S  resolution.  When  they  present  the 
plan  we  may  and  shall  vary  many  parts  of  it. — 
And  he  (Mr.  O'C.)  wrould  for  one  move  to 
vary  any  part  of  it  that  did  not  agree  with  the 
wishes  of  his  constituents.  And  after  we  have 
debated  on  and  modified  their  report,  we  then 
can  get  fairly  to  work  at  the  business  before  us — 
not  upon  mere  questions  of  form — or  mere  classi- 
fication— but  on  distinct  propositions — not  at  all 
technical — touching  the  special  reform  which 
each  member  may  be  instructed,  or  may  deem  pro- 
per to  present  to  us. 

Mr.  HOFFMAN  was  much  obliged  to  Mr. 
JONES  for  bringing  this  question  before  the  Con- 
vention, directly,  by  his  resolution  at  this  early 
hour  or  stage  of  its  proceedings — calculated  as  it 
most  certainly  was  to  bring  the  minds  of  gentlemen 
here  distinctly  to  the  question — to  enquire  how 
we  can  best  proceed  to  cut  up,  dissect,  separate 
and  classify  the  subjects  upon  which  the  Con- 
vention has  to  act.  And  he  was  still  more  in- 


debted to  his  friend  from* Kings  (Mr.  SWACK- 
HAMER)  who  had  moved  a  most  proper  refer- 
ence of  the  subject  as  he  thought.  He  (Mr.  H.) 
made  no  great  claims  to  legislative  experience. 
It  was  true  that  he  had  had  something  to  do  in  that 
way  ;  and  he  should  be  wanting  in  his  duty  to  the 
Convention,  if  he  did  not  distinctly  state  at  the 
outset,  that  upon  a  question  like  this  he  preferred 
a  direct  reference  to  the  committee  of  the  whole. 
By  adopting  this  course,  it  is  a  direct  and  an  im- 
portant advantage  gained  immediately.  It  also 
leaves  to  us  every  other  mode  that  may  be  sug- 
gested hereafter.  We  are  free  to  choose.  No- 
thing is  lost  by  it ;  and  we  gain  all  that  can  be 
gained  by  a  special  committee  and  a  good  deal 
more.  We  are  engaged  in  a  great  labor,  and 
when  he  recollected  that  in  all  the  great  legisla- 
tive contests  for  freedom,  the  grand  committee — 
the  committee  of  the  whole— had  been  the  instru- 
ment by  whkh  victory  had  been  achieved,  he 
could  not  sit^uietly  by  and  leave  his  friend  unpro- 
tected. What  is  to  be  gained  by  a  special  commit- 
tee? Submit  this  question  to  such  a  committee,  and 
they  would  only  then  be  in  the  precise  condition 
we  are  in  now — for  we  have  before  us  the  con- 
stitution of  the  State  and  the  existing  government, 
in  all  its  complicated  workings.  Refer  it  to  the 
committee  of  the  whole,  and  they  have  the  same 
before  them.  Will  it  not  be  admitted  that  the 
entire  body  of  the  convention  must  give  wiser  and 
better  instructions  and  come  to  wiser  and  better 
conclusions  that  any  special  committee  ?  The 
gentleman  who  moved  the  resolution  very  justly 
and  properly  admitted  that  the  select  committee 
could  not  rely  altogether  upon  its  own  knowledge 
— but  must  derive  most  of  its  information  from 
the  other  members  of  the  convention.  And  yet 
he  gave  as  a  reason  for  not  having  a  committee  of 
the  whole,  that  each  member  would  be  at  liberty 
to  present  his  own  projet.  Now,  compare  the 
condition  of  a  member  presenting  his  projet  to  a 
select  committee,  with  that  of  one  presenting  his 
projet  to  a  committee  of  the  whole.  For  this 
must  be  done,  or  how  is  a  select  committee  to  get 
at  the  views  of  the  members  ?  Shall  the  special 
committee  travel  round  from  room  to  room  in  this 
hall,  or  from  member  to  member  at  his  dwelling 
or  elsewhere,  to  ascertain  what  are  their  wishes  ? 
Shall  the  members  stand  here  with  propositions 
and  the  special  committee  there,  and  have  them 
sent  to  them  ?  Can  anything  be  more  unr,easona- 
ble  or  disorderly  than  such  a  mode  of  proceeding? 
But  in  committee  of  the  whole  each  gentleman  can 
present  his  plan  and  .at  the  same  time  advocate  it, 
and  defend  it;  and  not  be  placed  as  they  would 
be  before  a  special  committee,  where  he  would 
be  told  to  wait  until  some  gentleman,  who  was 
in  before  him,  had  given  his  views  and  reasons. 
How  preferable  to  this  would  be  a  committee 
of  the  whole  ?  If  the  individual  or  aggregated 
opinion  of  the  Convention  is  to  assist *he  judg- 
ment of  the  special  committee,  it  can  only  be  ob- 
tained here  in  committee  of  the  whole.  Gentle- 
men seem  to  think  that  they  are  going  to  expe- 
dite business  by  taking  this  short  cut.  But  gen- 
tlemen familiar  with  legislation  know  by  expe- 
rience here,  how  poorly  they  can  get  their  in- 
structions before  a  special  committee.  And  be- 
fore the  resolution  could  be  referred,  instruction 
after  instruction  would  be  moved — and  debate  af- 
ter debate  had  upon  each  instruction.  And  so 


33 


would  it  be  upon  the  report  when  it  came  in  and 
the  resolutions  accompanying  it;  amendment  af- 
ter amendment  would  be  proposed  and  then  still 
further  debate  arise  on  each,  to  an  almost  intermi- 
nable length ;  for  no  one  supposes  thatfot  this  ear- 
ly stage  of  the  session  the  previous  question  will 
be  very  freely  resorted  to.  Then  if  despatch 
is  the  object  of  this  Convention,  the  most  certain 
way  to  get  it  is  by  going  into  committee  of  the 
whole  at  once.  Each  one  will  not  have  to  argue 
his  proposition  or  defend  them,  because  many  a 
person  will  hear  precisely  his  own  argument  and 
train  of  reasoning  advanced  by  another.  He 
did  not  desire  to  inflict  anything  like  a  speech 
upon  this  committee,  but  he  did  most  earnestly 
desire  to  see  the  highly  important  business  which 
brought  us  together,-  properly  and  expeditiously 
disposed  of.  A  day  or  two  spent  in  committee 
of  the  whole  will  effect  all  that  we  desire. 
It  will  give  all  the  members  an  opportunity  to 
show  on  what  subjects  they  desire  to  have  com- 
mittees of  investigation  appointed ;  and  it  will  en- 
able them  to  draft  resolutions  as  to  the  best  mode  of 
conducting  the  business  of  the  Convention  here- 
after. And  if  it  should  happen  to  be  the  case, 
(which  he  Mr.  H.  did  not  anticipate,)  that  there 
should  be  no  concentration  of  views  among  the 
members,  then  the  subject  can  at  once  be  taken 
out  of  the  committee  of  the  whole,  and  all  would 
be  entirely  satisfied,  and  each  one  of  a  special 
committee  (whether  formed  of  8  or  16)  will  have 
heard  enough  of  the  subject,  and  be  able  to  form 
such  a  judgment,  as  to  the  proper  distribution  of  it 
as  will  be  as  satisfactory  to  every  member  as  can  be 
desired  by  any  gentleman  in  the  Convention. — 
He  (Mr.  H.)  did  not  fear  that  we  should  have 
what  has  been  termed  an  endless  debate,  in 
committee  of  the  whole  on  the  merits  of 
the  various  propositions  to  be  submitted  to 
us.  But  it  is  better  that  there  should  be  occa- 
sional departures  from  the  strict  rules  of  order ; 
better  that  we  should  have  a  large  and  varied  de- 
bate, than  that  gentlemen  unaccustomed  to  this 
mode  of  deliberation  should  be  trammelled  and 
cut  short  by  unnecessary  calls  to  order.  This 
would  injure  no  one,  but  might  elicit  many  use- 
ful truths ;  and  there  is  no  other  way  in  which 
all  can  have  an  impartial  opportunity  of  partici- 
pating in  the  discussion  and  settlement  of  this 
important  question.  In  no  way  can  you  so  spee- 
dily expedite  this  business  as  by  going  into  com- 
mittee of  the  whole.  You  will  then  have  each 
man's  proposition  before  you,  and  the  reason  he 
has  to  assign  for  it.  It  may  be  feared  that  if  we 
should  go  intocommitte  of  the  whole,  we  should 
wrangle  with  each  other,  or  approximate  near  to 
it.  But  he  had  no  fears  of  this  kind ;  no  fear  of 
any  personalities  being  resorted  to,  or  of  any  de- 
parture from  the  wholesome  rules  of  decorum,  in 
this  body.  From  what  he  had  seen  here,  he  was 
quite  satisfied  that  this  Convention  cauld  and 
would  preserve  perfect  order  and  decorum.  We 
had  no  reason,  no  inducement,  to  depart  from  it. 
It  is  true  that  many  of  us  have  been  actors  in  the 
past;  but  that  action  cannot  be  recalled,  and 
whether  it  has  been  for  good  or  evil,  it  is  gone  for 
ever!  We  are  called  hereto  make  a  Constitu-' 
•tion,  not  only  for  the  3,000,000  of  people  now  in" 
this  State,  but  for  the  millions  that  are  to  come 
after  them.  As  those  who  preceded  us  have  gone, 


so  those  now  here  shall  go,  and  be  succeeded  by 
others.  And  shall  we,  in  view  of  this,  depart 
from  that  love  of  truth  and  justice  which  should 
guide_  us  in  endeavoring  to  frame  the  best  Con- 
stitution that  human  wisdom  can  devise  ?  This 
consideration  alone  ought  to  control  any  disposi- 
tion here  to  indulge  in  animosities  against  each 
other  in  any  way  This  principle  is  the  heart  and 
soul  of  our  meeting,  and  should  induce  us  to  aim 
at  but  one  great  end  :  that  of  honestly  endeavor- 
ing to  benefit  our  fellow-men  and  our  posterity  ! 
We  commence  then,  with  that  great  instrument 
of  public  freedom,  the  Committee  of  the  Whole, 
and  if  we  strictly  adhere  to  it,  we  shall  most 
surely  succeed  in  obtaining  our  end. 

Mr.  KIRKLAND  enquired  the  question  before 
the  Convention? 

The  PRESIDENT  stated  it  to  be  on  the  motion 
to  refer  the  whole  subject  to  a  committee  of  the 
whole. 

Mr.  CAMBRELENG  had  but  one  word  to  say 
on  this  very  important  question.'  Jt  was  a  mere 
question  of  time  and  business.  His  friend  over 
the  way,  (Mr.  HOFFMAN,)  must  be  too  familiar 
with  public  business  not  to  understand  the  ne- 
cessity of  parliamentary  organization,  and  how 
these  things  were  done  in  Congress.  We  had  no 
eaucus  there,  but  a  few  prominent  men  of  the 
body  meet  logether  and  arrange  the  business,  and 
some  gentlemen  were  selected  to  carry  the  ar-- 
rangement  out,  and  that  was  the  end  of  it.  This 
was  the  design  of  the  resolution — not  to  suppress 
any  enquiries,  but  merely  to  arrange  our  business. 
No  principle  was  involved  in  it.  If  there  had 
been  any  expression  of  a  wish  for  one  moment, 
to  suppress  propositions  that  might  be  desired  to 
be  presented,  it  would  be  a  different  thing;  but 
all  of  us  know  that  there  would  not  be  a  member 
on  the  committee  who  would  desire  to  do  any 
such  thing.  The  usual  design  of  a  committee 
was  to  prepare  the  order  of  business — the  same 
course  was  pursued  universally  by  every  parlia- 
mentary body  throughout  the  world.  But  if  we 
should  go  into  committee  of  the  whole,  what 
would  be  the  result?  We  should  have  forty  dif- 
ferent propositions,  and  at  the  end  of  three  weeks 
perhaps,  then  have  all  these  propositions  refer- 
red to  a  select  committee  to  do  precisely  what  is 
proposed  to  be  done  now. 

Mr.  HOFFMAN  begged  leave  to  reply  to  an  al- 
lusion of  the  gentleman  from  N.  York  to  himself. 
The  gentleman  supposes  that  it  is  customary  in  a 
deliberative  body  to  have  informal  committees,  to 
dissect  the  Executive  messages.  He  (Mr.  H.) 
had  done  that  labor,  but  he  had  never  heard  of 
any  such  informal  conference  or  committee  out  of 
doors  having  any  thing  to  do  with  it. 

Mr.  CHATFIELD  asked  the  convention  to  par- 
don him  for  a  moment,  while  he  said  what  he 
could  towards  presenting  this  question  as  it  was. 
It  had  been  very  much  misconceived  by  gentle- 
men who  had  urged  the  proposition  to  go  into 
cqpimittee  of  the  whole,  he  would  not  say  design- 
edly. Gentlemen  seem  to  have  understood  that 
ay  referring  this  matter  to  a  committee  of  17 
to  report  a  projetfor  the  arrangement  of  busi- 
ness, that  they  were  to  report  a  constitution  al- 
ready prepared,  and  were  about  to  smuggle  it 
through  the  convention  and  no  body  find  out  any 
thing  about  it.  He  did  not  believe  that  the  gen* 


34 


tleman  from  Herkimer  would  ever  be  found 
asleep  on  such  an  occasion.  He  was  always  too 
wide  awake. 

Mr.  HOFFMAN,  had  heard  no  one  entertain 
such  a  supposition.  He  supposed  it  was  under- 
stood every  where,  to  be  a  question  of  mere  par- 
celling and  distribution. 

Mr.  CHATFIELD  did  not  know  that  any  such 
proposition  had  been  made  in  terms,  but  that  was 
the  result  and  conclusion  of  the  arguments  on 
that  side.  He  had  an  entirely  different  view  of 
the  matter.  The  only  thing  proposed  to  be  done 
was  to  take  up  the  existing  constitution  and  refer 
its  different  parts  and  the  amendments  that  were 
necessary  to  appropriate  committees — there  was 
nothing  beyond  that.  Now  he  would  ask  whe- 
ther there  was  any  danger  to  be  apprehended 
with  the  controlling  force  of  the  opinion  of 
gentlemen  here  expressed.  He  would  be  very 
glad  to  have  them  show  to  him  where  this  dan- 
ger was  to  be  looked  for.  This  committee  would 
report  no  opinion  except  such  as  was  implied 
in  their  resolution  of  reference.  And  if  any  gen- 
tleman thought  there  was  a  subject  not  embraced 
in  their  report,  it  would  be  very,  easy  for  him  to 
move  an  amendment.  The  gjgnileman  from 
New  York,  (Mr.  TIL.DEN,)  had  undertaken  to 
say  that  no  subject  but  what  the  committee  pro- 
posed could  be  referred.  He  (Mr.  C.)  did  not  so 
understand  it.  These  propositions  would  be  pure- 
ly affirmatory,  none  of  them  would  be  negative. 
Every  thing  not  included  would  be  left  to  the 
Convention  to  act  upon.  His  opinion  was  that  this 
course  would  greatly  facilitate  the  business,  and 
he  believed  that  by  to-morrow  morning  they  could 
report,  and  the  various  subjects  be  sent  off  to  their 
appropriate  committees.  Suppose  that  the  other 
course  was  taken.  We  are  afloat  on  a  wide  sea, 
without  any  helm  or  compass,  or  land-mark — the 
debate  might  continue  till  July,  and  then  we  be 
obliged  to  come  back  to  where  we  started,  so  far 
as  the  labor  we  were  sent  here  to  perform  was 
concerned.  He  did  not  believe  we  had  that  time 
to  waste,  nor  that  any  great  advantage  would  be 
derived  from  discussion  at  this  stage.  When  the 
committee  report,  it  was  not  expected  that  their  re- 
solutions would  pass  sub  silentio ;  they  would  then 
be  discussed,  and  as  fully  too  as  in  committee 
of  the  whole.  He  had  some  evidence  that  this 
could  be  as  well  done  here  as  in  committee 
of  the  whole.  The  gentleman  from  Orange  and 
Herkimer  had  already  introduced  propositions. 
What  can  we  gain  by  going  into  committee  ?— 
Nothing  but  a  waste  of  time ;  almost  a  criminal 
waste  of  the  time  of  the  people.  There  were 
some  portions  of  the  remarks  of  the  gentleman 
from  Herkimer,  (Mr.  HOFFMAN)  which  he  (Mr. 
C.)  apprehended  had  very  little  to  do  with  the 
propositions  before  us.  Our  position  in  regard 
to  the  present  and  coming  generations,  was  a 
matter  perhaps  to  be  discussed  hereafter.  But 
he  apprehended  it  had  nothing  to  do  with  this 
question,  and  that  it  was  thrown  in  to  mislead 
the  minds  of  gentlemen.  He  did  not  know  but 
the  resolution  was  too  broad  in  its  form,  and 
might  give  the  committee  too  much  power,  if  it 
did,  it  ought  to  be  amended. 

Mr.  JONES  had  a  substitute  for  his  resolution, 
which  perhaps  would  obviate  many  of  the  objec- 
tions that  had  been  raised. 
Mr.  SWACKHAMER  apprehended  it  would 


not  be  in  order.  He  should  object  to  this  piling 
up  of  resolutions. 

Mr.  JONES  said  at  the  suggestion  of  several 
gentlemen  he  should  not  offer  his  amendment. 

Mr.  TILDEN  preferred  the  resolution  as  it  was. 
He  did  not  design  to  detain  the  Convention,  but 
merely  to  say  that  he  had  been  very  unfortunate 
in  making  himself  understood  to  his  friend  from 
Otsego.  IT  he  supposed  that  his  (Mr.  T.'s)  design 
in  favoring  the  reference  to  the  committee  of  the 
whole  was  to  go  into  a  prolonged  discussion,he  was 
mistaken.  He  supposed  it  if  was  sent  there,  it 
would  give  to  the  111  members  on  this  floor, 
not  embraced  in  the  committee,  a  chance  du- 
ring a  short  period  to  offer  any  and  all  propo- 
sitions that  they  might  deem  proper.  And  if 
there  was,  as  he  did  not  believe  there  would 
be,  any  difficulty  in  adopting  a  classification, 
then  there  could  be  made  such  a  reference  as 
was  proposed  by  his  colleagues,  and  the  sub- 
committees would  be  sufficiently  informed  of  the 
opinions  of  members  to  make  a  classification  com- 
plete and  comprehensive.  Certainly,  these  17 
gentlemen  will  embrace,  in  the  propositions  they 
may  submit  here,  only  such  as  may  offer  them- 
selves to  their  own  minds,  without  respect  to 
what  might  appear  proper  to  any  other  of  the  111 
members.  It  seemed  to  him  that  but  a  very  short 
time  would  be  employed  in  presenting  these  pro- 
positions, and  they  could  ultimately  be  classified 
by  the  committee.  As  to  the  apprehension  that 
if  we  go  into  committee,  we  shall  not  be  able  to 
get  out  of  it,  the  gentleman  is  perfectly  aware 
that  a  motion  to  rise  and  report  progress  is 
not  debateable,  and  that  if  it  is  the  will  of  the 
majority,  leave  can  be  refused  to  sit  again, 
and  the  debates  be  terminated.  We  shall  un- 
doubtedly have  all  these  propositions  in  the  Con- 
vention, and  the  question  is  whether  the  com- 
mittee shall  be  in  possession  of  all  the  matter  they 
shall  undertake  to  classify,  or  only  17-128ths  of 
that  matter.  That  is  simply  the  question  for  this 
body  to  determine,  and  it  seemed  to  him  so  plain 
and  simple  that  he  was  at  a  loss  to  assign  any  rea- 
son for  departing  from  it  on  this  occasion  if  he 
were  not  aware  of  the  almost  morbid  anxiety  on 
the  part  of  gentlemen  to  despatch  business  rapid- 
ly. He  was  not  less  anxious  to  bring  our  labors 
to  a  termination,  but  in  his  judgment  the  object 
would  not  be  attained  by  a  leap  in  the  dark. — 
Such  a  leap  he  considered  this  proposition  to  re- 
fer to  a  committee  of  17. 

Mr.  SHEPARD  moved  an  adjournment. 

Mr.  CHATFIELD  wished  to  ask  leave  of  ab- 
sence, before  that  motion  was  put,  for  one  week, 
for  Mr.  NELSON  of  Otsego.  Leave  was  granted. 

And  then  the  Convention  adjourned. 


FRIDAY,  (5th  day,)  June  5. 

Prayer  by  the  Rev.  Mr.  BATES. 

Mr.  KIRKLAND,  from  the  select  committee  of 
8,  in  relation  to  the  expenses  of  Judiciary  pro- 
ceedings, submitted  the  following  resolutions: — 

COUNTY,  MAYOR'S  AND  RECORDER'S  COURTS. 

Resolved,  That  the  Secretaries  of  the  Convention  be  di- 
rected to  address  letters  to  the  County  Clerk  of  each  coun- 
ty in  the  State,  requiring  an  immediate  answer  to  the  fol- 
lowing questions: — 

1.  How  many  terms  of  the  County  Courts  of  your  coun- 
ty were  held,  and  for  how  many  days  did  said  courts  sit 
during  the  year  1845? 


35 


2  How  many  civil  causes  were  on  the  calendars  at  sai 
terms  for  trial;  how  many  wn-o  tried;  and  what  was  the 
aggregate  amount  of  verdicts  therein. 

3.  How  many  of  said  causes  \v  ere  on  appeal  from  Justi 
ces'  Courts;  un'd  in  cases  of  appeal,  in  which  verdicts  were 
rendered,  state  in  each  case  the  amount  of  the  recovery  for 
debt  or  damages  before  the  justice,  and  the  amount  of  the 
verdict  in  the  County  Court? 

4.  How  many  causes  arising  on  certiorari  were  on  the 
calendars  at  said  terms?    How  many  judgments  were  re 
rersed?    How  many  affirmed? 

5.  What  was  the  amount  allowed  during  said  year  to  thi 
Judges  ofthe  County  Courts  and  Common  Pleas,  (or  thei 
fees  or  salaries  as  compensation  for  travel  and  attendance 
at  the  Courtsof  Oyer  and  Terminer? 

6.  What  amount  was  allowed,  and    chargeable  to  the 
County,  for  fees,  during  said  year,  in  said  County  Courts 
of  grand  jurors,  of  petit  jurors,  of  sheriffs  and  constables 
of  crier,  of  county  clerk,  for  services  in  said  courts,  stating 
each  separately? 

Resolved,  That  the  Secretaries  address  similar  letters  t 
the  Clerks  of  the  several  Mayor's  and  Recorder's  Courts  in 
this  State,  except  the   Recorders  Court  of  the  city  ant 
county  of  New  York,  asking  for  similar  information,  sc 
far  as  applicable  to  their  courts 

CIRCUIT  COURTS. 

Resolved,  That  the  Secretaries,  in  their  said  letters  t( 
the  County  Clerks,  and  also  in  a  letter  to  be  addressed  by 
them  to  the  Clerk  ofthe  Circuit  Court  in  and  for  the  citj 
and  county  of  New- York,  request  answers  to  the  follow 
ing  questions: — 

1.  How  many  terms  of  the  Circuit  Court  were  held  in 
your  county  during  the  year  1845,  and  for  how  many  day, 
did  said  terms  continue? 

2.  How  many  civil  causes  were  on  the  calendar  at  eaic 
terms;  how  many  were  tried  ;  what  was  the  aggregatt 
amount  of  verdicts  rendered  at  each  term? 

3.  What  amount  was  allowed  for  fees  at  said  terms,  o 
Grand  Jurors,  of  Petit  Jurors,  of  Sheriff  and  Constables,  o 
Crier,  stating  each  separately? 

Resolved,  That  the  Comptroller  be  requested  to  prepare 
for  the  use  of  the  Convention  a  statement  showing  the 
amount  of  salary  or  compensation  paid  or  accrued  during 
the  year  1845,  to  the  Chancellor,  the  Vice  Chancellor,  the 
Assistant  Vice  Chancellor,  the  Justices  of  the  Supreme 
court,  the  Circuit  Judges,  the  State  Reporters,  the  Regis 
ter,  including  Clerk  hire  and  other  expenses  allowed  to 
him,  the  Assistant  Register,  including  Clerk  hire  and  oth- 
er expense*  allowed  to  him;  the  Clerks  in  Chancery;  the 
Chancellor's  <"lerk;  the  Clerks  of  the  Supreme  Court,  in- 
cluding hue  and  other  expenses  allowed  to  them;  the 
criers  and  constables  attending  the  Supreme  Court;  the 
Sergeants-at-arms  of  the  Court  of  Chancery;  the  members 
of  tne  Court  for  the  Correction  of  Errors,  its  officers  and 
attendants,  and  all  other  charges  or  expenses  during  said 
year  paid  by  the  State,  or  incurred  and  chargeable  to  the 
State,  for  the  Court  for  the  Correction  of  Errors,  the  Court 
of  Chancery,  the  Supreme  court  and  the  Circuit  courts 

Resolved,  That  the  Secretaries  of  the  Convention  be  di- 
rected to  address  a  letter  to  the  Vice  Chancellors,  the  As- 
«istant  Vice  Chancellor,  each  ofthe  Circuit  Judges  and  Su- 
preme Court  Commissioners,  the  First  Judge  of  each  coun- 
ty, each  of  the  Judges  of  the  Superior  Court  and  of  the 
court  of  Common  Pleas  ofthe  city  and  county  of  New-York 
and  of  the  Justices  of  the  Marine  Court  in  said  city,  the 
Recorders  of  each  of  the  cities  of  the  State,  the  Clerk  of 
the  Supreme  court  in  the  city  of  New. York,  and  also  to 
ths  several  Masters  and  Examiners  in  Chancery  in  the 
state,  requesting  them  severally  to  comrrunicate  to  this 
Convention  without  delay,  the  amount  of  fees  and  perqui- 
sites of  office  received  or  charged  by  them  respectively, 
for  services  rendered  during  the  year  1845. 

Mr.  STRONG  thought  that  part  relating  to  "fees 
of  County  Judges"  was  not  strong  enough.  He 
wished  that  part  read  again. 

It  was  read  again,  as  "follows  : 
"  What  was  the  amount  allowed  for  fees  for  travel  and 
attendance  on  the  County  Court,  and  also  the  same  for  the 
Court  of  Oyer  and  Terminer." 

Mr.  STRONG  said  that  some  judges  had  a  sala- 
ary,  and  some  of  the  fees  go  in  some  places  to- 
wards the  salary  ;  but  this  was  regulated  by  the 
Board  of  Supervisors.  He  did  not  think  this 
would  reach  that  matter. 

Mr.  RICHMOND  said  that  if  the  First  Judge 


was  a  salaried  officer,  the  report  of  the  County 
Treasurer  would  reach  it.      • 

Mr.  STRONG  moved  to  amend,  so  as  to  read — 
**  fees  or  salaries." 
It  was  so  amended. 

Mr.  SHEPARD  said  there  was  an  omission ; 
because  in  New  York  city  the  County  Court  was 
distinct  from  the  Court  of  Common  Pleas.  He 
moved  to  insert,  "  and  Court  of  Common  Pleas  of 
New  York." 

This  was  carried. 

Mr.  RHOADES  moved  the  following  as  an 
amendment : 

Resolved,  That  the  Clerks  of  the  Supreme  Court  be  re- 
quested to  furnish  to  this  Convention  a  statement  of  the 
number  of  judgments  rendered  in  that  Court  during  the 
year  1845,  with  the  aggregate  amount  of  damages  and 
costs,  stated  separately. 

It  was  carried  as  an  amendment  to  the  report. 
Mr.  J.  J.  TAYLOR  moved  as  an  amendment, 
to  include  the  number  of  enumerated  and  non- 
enumerated  motions  made  and  recorded  in   the 
Court  of  Common  Pleas. 
This  was  ultimately  lost. 

Mr.  PERKINS  thought  we  should  not  get  an 
answer  to  all  these  enquiries  before  it  was  time 
for  the  convention  to  adjourn.  We  ought  not  thus 
to  spread  out  all  these  enquiries.  For  that  rea- 
son, the  year  1844  was  omitted. 

Mr.  KIRKLAND  said  they  had  deliberately 
considered  all  the  interrogatories  necessary  to  in- 
clude all  the  information  essential  for  the  Con- 
vention to  know — and  they  lopped  off  all  those 
minor  matters  for  fear  that  there  would  not  be 
time  to  get  an  answer  to  the  queries  for  several 
months.  The  results  of  his  report  would  furnish 
a  voluminous  book  of  information  for  the  Conven- 
tion, and  give  the  facts  on  all  the  great  points 
they  wished  to  get  at.  He  hoped  they  would  not 
load  down  the  report  any  further,  so  as  to  destroy 
its  utility. 

Mr.  J.  J.  TAYLOR  thought  that  the  facts  about 
the  "  enumerated  motions,  &c.,"  which  he  called 
for,  could  be  looked  up  by  the  clerk  of  a  court  at 
the  same  time  that  he  was  looking  up  in  his 
book  for  the  information  that  was  asked  for.  He 
would  not  for  a  moment  press  his  amendment,  did 
he  think  it  would  prevent  a  full  answer  to  the  re- 
port in  time  ;  but  he  did  not  think  it  would ;  and 
it  was  highly  necessary  for  us  to  have  the  amount 
of  these  special  motions  and  enumerated  motions, 
fee.,  so  as  to  be  able  to  compare  the  amount  of 
Dusiness  done  with  the  aggregate  annual  expense 
of  the  court,  and  to  compare  its  efficiency  with 
its  cost  per  annum. 

Mr.  LOOMIS  asked  if  there  were  any  enqui- 
ries as  to  the  criminal  business  of  the  courts — the 
'ees  of  district  attornies,  &c. 

Mr.  KIRKLAND  said  that  the  committee  had 
not  intended  to  enquire  as  to  the  fees  of  district 
attornies  in  this  respect,  at  all.  It  was  supposed 
that  some  member  of  the  Convention,  if  it  was 
deemed  desirable,  would  propose  the  enquiry  in 
xe  form  of  a  separate  resolution. 

Mr.  LOOMIS  thought  it  competent  for  the 
clerks  of  the  Boards  of  Supervisors  to  answer  that 
question. 

Mr.   BERGEN  thought  it  would  take  up  a 

great  deal  of  the  time  of  these  officers  to  answer 

he  enquiries.     He  knew  it  would  certainly  in 

lis  (Kings)  county. 

Mr.  STRONG  said  it  would  save  a  good  deal  of 


36 


time,  and  permit' an  examination — as  it  was 
very  desirable  tha*  these  enquiries  should  be 
right — if  the  report  was  laid  on  the  table  until 
to-morrow  morning,  and  printed.  The  report 
and  amendments  could  then  be  better  understood, 
and  at  the  end  it  would  be  a  saving  of  time. 

Mr.  RHOADES  moved  to  amend  so  as  to  pro- 
cure further  information  which  he  deemed  of 
great  importance  to  the  Convention.  He  wished 
to  require  of  the  county  clerks,  statements  of  the 
amount  of  judgments  docketed  in  their  offices  du- 
ring those  years,  together  with  a  statement  of 
the  damages  and  costs  separately. 

Mr.  RUSSELL  hoped  the  report  of  the  com- 
mittee would  be  adopted  to-day,  in  order  that 
the  earliest  intimation  might  be  received  by  these 
officers,  that  this  information  would  be  required 
of  them.  He  doubted  much  whether  it  would  be 
received  from  all  the  counties  before  this  body 
adjourned.  A  committee  of  8  had  been  appoint- 
ed, conversant  with  all  branches  of  the  subject, 
and  they  have  reported  extended  enquiries,  and 
he  thought  under  the  circumstances  it  would  be 
rather  uncourteous  to  this  committee  to  delay  im- 
mediate action  upon  their  report.  Propositions 
for  further  enquiries  can  afterwards  be  made. — 
He  thought  himself  that  there  should  be  an  en- 
quiry instituted  into  the  expenses  of  our  crimi- 
nal courts,  so  that  we  could  know  the  whole  ex- 
penses of  our  courts.  He  thought  it  also  desira- 
ble that  this  same  committee  should  be  charged 
with  the  duty  of  compiling  these  returns,  and  the 
publication  of  an  abstract  of  them  for  the  use  of 
the  convention  at  as  early  a  day  as  possible.  And 
although  not  strictly  in  order  he  proposed  to  send 
up  an  additional  resolution  charging  the  commit- 
tee with  this  duty. 

Mr.  J.  TAYLOR  sent  to  the  chair  his  amend- 
ment. 

The  amendment  was  rejected. 

Mr.  RUSSELL  sent  up  his  resolution  in  rela- 
tion to  the  compilation  and  printing  of  the  returns. 

Mr.KIRKLAND  might  well  be  supposed  to  have 
a  word  or  two  to  say  for  himself  and  his  brethren 
on  the  committee  in  reference  to  that  resolution. 
It  was  impossible  for  them  to  attend  to  such  a  mat- 
ter. There  were  other  officers  of  that  convention 
whose  duty  required  them  to  do  it ;  at  all  events 
the  convention  had  full  power  to  require  it  of  them. 
He,  therefore,  proposed  to  amend  the  resolution, 
so  as  to  require  the  secretaries  to  have  this  labor 
done,  and  he  hoped  the  mover  would  not  object 
to  this. 

Mr.  RUSSELL  concluded  that  the  secretaries 
would  be  engrossed  with  their  general  business, 
and  he  apprehended  it  would  be  necessary  to  ap- 
point pro-tempore  secretaries  to  aid  certain  com- 
mittees. He  had  no  doubt  that  whenever  the 
chairman  of  a  committee  should  suggest  that  a 
special  secretary  was  required,  that  the  convention 
would  cheerfully  allow  one.  This  was  the  proper 
course  to  be  taken,  and  he  hoped  the  objections 
to  his  resolution  would  be  withdrawn. 

Mr.  KIRKLAND  would  withdraw  his  objec- 
tions if  the  gentleman  would  make  a  motion  in 
accordance  with  the  substance  of  the  last  part  of 
his  remarks. 

Mr.  RUSSELL,  had  no  doubt  the  Convention 
would  furnish  the  committee  the  additional  labor 
required.  They  were  only  instructed  to  superin- 
tend it. 


Mr.  R's  resolution  was  rejected. 

Mr.  HARRIS  sent  up  the  following  amend- 
ment : 

Resolved,  That  the  Clerks  of  the  Supreme  Court  be  re- 
quested tomform  this  Convention  of  the  number  of  causes 
upon  the  Calendar  for  argument  at  each  of  the  terms  of  the 
said  court,  during  the  year  1845;  the  number  of  such  causes 
whose  issue  bears  date  in  the  year  1845  ;  and  the  number 
whose  issue  bears  date  in  each  preceding  year  ;  and  the 
number  of  causes  heard  and  decided  at  each  of  said  terms. 

Resolved,  That  the  Register  and  Assistant  Register  be 
requested  to  furnish  similar  information  with  respect  to 
the  Court  of  Chancery. 

Mr.  NICOLL  desired  to  propose  a  substitute 
for  that  amendment  of  a  more  comprehensive 
character. 

Mr.  KIRKLAND  said  this  resolution  proposed 
a  very  proper  enquiry  in  itself,  but  should  not  be 
attached  to  this  report.  He  hoped  this  report 
would  be  adopted  as  it  stood,  then  he  would  be 
willing  to  vote  for  any  resolution  that  would  call 
for  accurate  information  for  the  Convention.  But 
he  apprehended  it  would  be  impolitic  to  load 
down  the  report  with  these  amendments. 

Mr.  HARRIS  could  not  see  how  the  result  an- 
ticipated by  his  friend  from  Oneida,  (Mr.  KIRK- 
LAND) could  be  produced  by  adding  some  enqui- 
ries to  those  proposed  in  the  report.  He  did  not 
recollect  that  there  were  any  very  important  en- 
quiries addressed  to  the  clerks  of  the  Supreme 
Court  or  the  registers.  To  oblige  the  gentleman, 
who  seemed  to  be  tenacious  about  the  report  as 
made,  he  would  withdraw  his  amendment  and 
offer  it  as  a  separate  proposition.  But  while  he 
did  so  it  still  seemed  to  him  more  appropriate 
that  all  these  enquiries  should  be  embodied  in  the 
same  report,  as  it  would  save  the  trouble  to  the 
secretaries  of  preparing  different  sets  of  interrog- 
atories. 

Mr.  NICOLL  merely  offered  his  resolution  be- 
cause he  believed  it  to  be  more  comprehensive 
than  that  of  the  gentleman  from  Albany.  That 
having  been  withdrawn  he  would  also  withdraw 
his. 

Ms.  RHOADES'  amendment,  extending  the 
same  enquiry  to  the  county  courts  as  the  Su- 
preme Court,  was  then  adopted. 

Mr.  STOW  wished  to  make  some  enquiries  of 
the  chairman  of  the  committee  whether  there 
were  any  interrogatories  proposed  in  the  case  of 
officers  who  act  ex-officio  as  Judges — as  Alder- 
men who  act  as  Judges  of  Recorder's  courts.  Also, 
as  to  cases  of  incidental  payments  which  were 
not  strictly  salaries — as  in  cases  of  Recorders  of 
cities  who,  in  addition  to  their  salary,  receive 
compensation  from  the  Board  of  Supervisors.  He 
would  point  out  a  verbal  error  in  the  report. — 
In  the  cities,  there  was  a  Mayor's  Court,  and  not 
a  Recorder's  Court,  as  styled  in  the  resolution. — 
The  fees  of  Criers  were  also  alluded  to.  These 
were  abolished  by  law,  and  a  per  diem  compensa- 
tion established  in  lieu  thereof. 

Mr.  KIRKLAND  said  the  gentleman  was  un- 
doubtedly correct  in  relation  to  his  verbal  criti- 
cism as  to  the  Mayor's  Court,  and  the  report 
could  be  amended  in  that  particular  by  the  secre- 
taries. These  courts  were  some  of  them  called 
Mayor's  Courts.  The  committee  had  taken  into 
consideration  all  the  subjects  alluded  to  by  the 
gentleman,  but  considering  that  all  the  cour'ts  of 
the  State  nearly  had  a  similar  organization,  they 
did  not  wish  to  elaborate  the  enquiries  by  pro- 
viding for  these  particular  cases.  In  relation  to 


37 


the  fees  of  Criers,  their  fees  were  undoubtedly 
abolished,  as  the  gentleman  had  stated. 

Mr.  SMITH  moved  to  lay  the  report  on  the  ta- 
ble. There  were  more  important  subjects  before 
the  Convention — that  of  yesterday  for  instance. 

The  motion  wag  rejected. 

Mr.  MORRIS  had  an  amendment  he  desired  to 
offer — not  making  any  alteration  in  the  report, 
but  only  designating  the  proper  officers  in  New 
York  to  whom  these  inquiries  should  be  address- 
ed, in  order  to  procure  the  necessary  information. 

Mr.  KIRKLAND,  considering  the  object  for 
which  the  amendment  was  proposed,  being  to  car- 
ry out  the  interrogatories  in  this  matter,  hoped 
there  would  be  no  objection  to  it. 

Mr.  SHEPARD  objected  to  Mr.  MORRIS'S 
amendment,  because  it  did  not  call  for  the 
asnount  of  fees.  Several  officers  in  New  York 
city  had  large  fees— the  3  Judges  of  Supreme 
Court,  the  3  Judges  of  Court  of  Common  Pleas, 
the  Recorder,  the  Vice  Chancellor,  the  Assistant 
Vice  Chancellor,  and  other  officers. 

This  was  carried  as  an  amendment,  and  the  re- 
port was  then  adopted. 

Mr.  HOFFMAN  wished  the  action  of  this  re- 
port indicated,  so  that  the  Secretary  could  get  his 
letters  written. 

Mr.  KIRKLAND  said  the  Secretary  would  send 
off  the  letters  directly,  so  as  to  get  the  answers  as 
soon  as  possible. 

SURROGATES— THE  DUTIES,  &c. 

Mr.  CLYDE  offered  the  following  resolution : 

Resolved,  That  the  Secretaries  of  this  Convention  be 
and  they  are  he;eby  directed  to  address  a  letter  to  each  of 
the  Surrogates  of  this  State, ^requesting  from  them  and  each 
»f  them  an  immediate  answer  to  the  following  enquiries; 

1.  What  was  the  total  amount  of  lees  and  compensation 
receive;!  by  you  as  a  Surrogate  tor  the  year  1845. 

ii.  How  many  applications  were  made  to  youduring  said 
year  tor  the  proof  of  wills  and  for  letters  testamentary. 

3.  How  many  applications  were  ma.leto  you  during  sait 
year  for  letters  of  administration  in  cases  of  persons  dying 
intestate 

4.  Ho -v  many  letters  testamentary  and  -of  administra 
tion  were  granted  by  you  during  said  year. 

5.  ID  how  many  cases  did  you  appoint  guardians  for  mi 
nors  during  said  time. 

6.  In  how  many  cases  were  there  settlements  of  the  ac- 
counts of  executors  and  administrators  before  you  during 
that  time,  and  how  many  of  them  were  final. 

7-  How  many  applications  were  made  to  you  for  the 
sales  of  real  estate  during  said  time. 

Mr.  WARD  did  not  wish  to  oppose  any  whole- 
some resolution  that  any  gentleman  might  offer 
but  he  would  suggest  to  the  Chair  that  no  other 
one  than  this  might  be  entertained  at  present — 
for  certainly  the  unfinished  business  of  yesterday 
must  take  precedence  of  any  new  resolution  of- 
fered to-day. 

Mr.  SWACKHAMER  moved  the  reference  o: 
the  resolution  to  a  new  committee  of  8,  with  a 
view  to  expedite  the  business.  Agreed  to. 

The  PRESIDENT  said  that  the  unfinished  busi 
ness  of  yesterday  took  precedence  of  any  new  re 
solution  to-day. 

Mr.  KIRKLAND  moved  that  the  secretarie 
have  power  to  get  as  many  copies  of  their  letter 
of  inquiry  printed,  (as  per  resolutions,  adopted  to 
day,)  as  were  necessary  to  send  all  over  the  State 
to  the  proper  officers,  with  a  view  to  expedite 
this  business,  and  to  carry  that  resolution  into  ef 
feet. 

Mr.  PERKINS  said,  as  there  was  so  much  busi 
ness  on  hand,  he  moved  that  the  secretaries  havi 
power  to  employ  as  many  assistants  as  they  want 


ie  withdrew  it,  however,  and  the  motion  vvu- 
arried. 

Mr.  KIRKLAND  moved  that  the  requisite  num- 
er  of  copies  of  the  report  that  he  had  presented 
hat  morning,  be  printed.  Agreed  to. 

ARRANGEMENT  OF  BUSINESS. 

Mr.  WARD  called  up  the  unfinished  business 
f  yesterday,  being  Mr.  JONES'  resolution  for 

committee  of  17,  and  Mr.  LOOMIS'  amendment* 
o  go  into  the  committee  of  the  whole,  in  refer- 
ence to  how  the  convention  should  proceed  in  the 
>est  practicable  mode  of  revising  the  constitution. 
This  was  a  highly  important  matter,  and  it  waa 
rery  essential  that  some  definite  action  be  had  on 
t  to-day,  if  possible. 

Mr.  DANFORTH  said  that  the  committee  of 
17,  would  be  sure  to  have  an  influence  that  would 

e  felt  in  all  after  deliberations.  True,  the  sev- 
eral members  might  suggest  topics  for  delibera- 
ion.  But  here  would  be  a  large  committee  em- 
jodying  much  knowledge  and  talent,  and  it  would 
>e  inferred  that  they  would  be  fully  competent 
to  chalk  out  all  the  reforms  necessary  to  be  made. 
And  he  hoped  the  Convention  would  pause  before 
they  appointed  this  committee.  True,  some  time 
might  be  lost  in  debate,  but  that  would  be  the 
setter  course.  And  that  was  his  solemn  judg- 
ment. 

Mr.  MANN,  of  N.  Y.  said  it  would  not  come 
out  of  the  committee  of  the  whole  for  six  weeksr 
if  it  once  got  there.  The  whole  Constitution  would 
De  discussed*  and  a  great  deal  else.  He  would  move 
hereafter  to  reduce  the  committee  to  7  instead  of  1 7 
— A  word  more  and  he  had  done.  He  wished  to 
be  understood  distinctly  that  he  had  no  question 
about  the  PRESIDENT'S  framing  an  excellent  com- 
mittee— his  remarks  were  only  suggested  under 
the  impression  that  we  all  were  human  and  liable 
to  err.  He  had  never  known  a  case  where  a  man 
went  into  committee  to  consult,  that  he  did  not 
come  out  still  more  convinced  of  the  correctness- 
and  superiority  of  his  own  suggestions,and  we  here 
might  find  it  a  very  hard  task  to  alter  or  modify 
the  report  of  the  committee,  even  in  the  most  tri- 
vial particulars.  For  these  reasons,  he  objected 
to  such  a  course  of  action. 

Mr.  SWACKHAMER  said  that  as  he  had 
made  the  motion  for  a  reference  it  might  not  be 
out  of  place  for  him  to  say  a  few  words  in  rela- 
tion thereto.  He  would  detain  the  Convention 
but  a  very  few  minutes.  If  his  motion  (for  refer- 
ring the  original  resolution  of  Mr.  JONES,  and 
the  amendment  of  Mr.  LOOMIS,  to  the  committee 
cf  the  whole)  should  not  be  adopted,  then  the 
gentleman  from  Herkimer,  (Mr.  LOOMIS)  ha« 
said  that  he  will  urge  his  propositions  in  some 
other  way  or  form ;  and  however  this  is  done,  in 
my  judgment  (with  all  due  deference  to  his  abili- 
ty and  great  parliamentary  experience)  it  will  in 
any  event  prejudge  the  whole  question  as  to 
what  we  are,  and  on  what  we  are  not  to  act,  in  re- 
lation to  a  revision  and  amendment  of  the  Con- 
stitution of  the  State.  If  the  motion  for  a  refer- 
ence should  not  prevail,  then  the  next  question 
will  be  to  divide,  and  dissect  up  the  various  propo- 
sitions that  may  be  offered,for  laying  down  the  plan 
of  action ;  and  that,  too,  must  be  done  here  in  this 
Convention.  And  such  a  result  will  go  far  to  de- 
stroy that  freedom  for  offering  amendments,  a 
point  so  desirable  in  a  matter  of  so  much  impor- 
tance1 as  this.  When  we  speak  of  prejudice  and 


38 


of  prejudging  a  question,  let  us  take  a  view 
What  we  have  seen  to-day   and  of  what  we  hav 
seen  before.      Members,  from  this  course,  mu< 
see  the  propriety  of  freely  discussing  such  an  ar 
rangement  of  business  as  will  conduce  to  the  per 
manent  interests  of  the  constituents  of  all  thos 
who  come  here  to  revise    the   Constitution.— 
Should  the  House  vote  down  the  reference  to 
committee  of  the  whole,  he  would  ask  in  all  can 
dor,  whether  members  really  believe  that  the  spe 
cial  committee  of  17,  as  proposed,  will  not  b 
prejudiced  to  a  very  great  extent,  in  favor  of  thei 
own  plans,  when  they  shall  have  reported  them 
and  against  those  of  individual   members.     Wlr 
even    here,  to-day,    we    have    seen  an  unirn 
portant     committee     comparatively,     certainly 
greatly    inferior,    in    point    of    importance,    t 
the  proposed  committee  of  17— *one   merely   t 
prepare  certain  inquiries,and  We  have  seen  no  pro 
position  that  was  offered  as  an  amendment  to  the 
report  of  that  committee,  adopted,  without  the  en 
dorsement  of  the  Honorable  Chairman,  and  ther 
only  in  one  or  two  instances.     Let  these  facts 
then,  be  conclusive  on  the  minds  of  all  here."^ 
For,  however  unprejudiced  each  member  may  go 
into  that  committee,  he  will  be  influenced  by  the 
collision  of  mind  and  intellect  that  he  will  en 
counter  there  ;  he  will  be  influenced  by  the  minds 
of  that  small  committee  of  17— far  more  so  than 
he  would  be  by  a  committee  composed  of  128  !— 
We  have  heard  complaints   made  here,  of  delay 
and  of  talking  members ;  but  as  they  had  a  certain 
great  work  to  do — no  less  than  the  revision  of  the 
constitution— he  fully  believed  that  if  that  work 
was   done  properly,  a»d  within  any  reasonable 
time,  that  no  complaint  would   come  up  against 
them  from  any  quarter  whatever.     And  as,  unless 
his  resolution  was  adopted,  we  shall  have  propo- 
sition after   proposition  and   amendment  after   a- 
mendment,  in   the  House,  he  did  most  certainly 
think  that  the  best  Way  to  save  the  valuable  time 
of  the  convention,  was  to  go  at  once  into  commit- 
tee of  the  whole.     And  there  every  person  will 
have  a  full  opportunity  of  expressing  their  views 
and  opinions  on  the  matters  bro't  before  the  con- 
vention, in  accordance  with  the  wants  and  wishes 
of  his  constituents,  in  every  part  of  this  great  State. 
He  had  said  this  committee  would  be  liable  to  be 
influenced  by  various  extraneous  causes ;  and  he 
would  repeat,  that  such  will  be  the  case.     Now 
with  regard  to  the  influence  of  local  causes  ;  let 
us   see   how  the  case  stands.     Gentlemen   have 
said  here  that  this  committee  will  represent  every 
locality  in  the  State.     Is  this  so  ?    This  may  be 
correct  in  one  point  of  view,  perhaps — but  cer- 
tainly not  in  another.    For  example,  let  us  take 
the  1st  Senate  District,  under  the  old  apportion- 
ment.    The  Hon.  Chairman  (and  he  spoke  with 
all  due  respect  to  that  gentleman,  whose  integrity 
aud   impartiality  are  far   above  suspicion,)   may 
perhaps  select  men  to  serve  on  a  committee— in 
connection  with  the  affairs  of  that  District — en- 
tirely from  the  city  of  New  York.    Now  it  may 
be  the  case  that  the  city  of  New  York  is  suffi- 
ciently interested  in  internal  improvements  to 
bear  taxation  for  the  construction  of  an  Erie  or  an 
Albany  Railroad,  on  the  ground  that  they  will  re- 
ceive an  equivalent  in  the  cheapness  of  country 
produce,  through  the  additional  facilities  those 
roads  would  afford  for  sending  the  same  to  mar- 
ket.   On  the  contrary,  Long  Island  is  injured  in 


her  agricultural  and  marketing  interest  in  conse- 
quence of  the  reduction  of  me  price  of  her  pro- 
ducts; and  doubly  injured  by  being  taxed  for  im- 
provements Which  can  only  build  up  the  inte- 
rests of  other  sections  of  the  State  at  the  expense 
of  her  own  citizens.     It  must  be  clear,  therefore, 
in  view  of  these  facts,  that  his  constituents  would 
be  interested  in  having  this  Convention  limit  the 
power  of  the  Legislature  to  run  them  in  debt,  to 
tax  their  property  to  pay  this  for  the  benefit  of 
others.     He  was  aware  that  this  might  be  con- 
sidered  a  narrow  view  of  the  question,  but  h'e  had 
merely  referred  to  it,  by  way  of  illustration ;  be- 
ing convinced  from  what   he   had   already  seen 
here,  that  every  member  is    above    being  ac- 
tuated by  local  prejudices  or  private  interests. 
You  go,  on  the  other  hand  into  a  committee  of 
the  whole,  and  every  county  and  town — aye,  ev- 
ery foot  of  land  will  be  fully  and  effectually  rep- 
resented there,  and  not  only  so,  but  will  be  rep- 
resented on  the  true,  honest,  and  liberal  princi- 
ples under  which  we  come  here  to  act.    But,  then 
we  are  not  here}   he  said,   to  act  for  Long  Island 
alone,  but  for  the  whole  State  ;  and  what  he  con- 
tended for  is  that  there  shall  be  no  sectional  partial - 
ty  or  advantages,  but  that  all  shall  be  placed  on 
an  equal  footing.     He  did  not  charge  that  the 
President  will   knowingly  act  with  the  slightest 
partiality.     He  did  not  merely  complain  of  these 
jvils  in  the  abstract ;  but  he  did  complain  of  the 
system  out  of  which  these  evils  have  grown.     And 
hese  Very  evils,  therefore,  show  us  the  necessity 
hat  there  is  for  our  going  at  once  into  committee  of 
he  whole.     And,  after  we  have  fully  convin- 
ced members  hereof  thefiecessity  of  investigating 
these  matters  thoroughly — of  concentrating  their 
views— and  of  striking  at  the  foundation  of  these 
evils— we  have  accomplished  half  the  great  work 
vhich  our  constituents  sent  us  here  to  perform.— 
And,  sir,  as  the  gentleman  from  Herkimer  (Mr. 
^OOMIS)  observed,if  precedents  have  any  influence 
lere ,  we  have  a  noble  one  in  the  example  of  one 
he  most  august  deliberative  bodies  that  have  ey- 
r  assembled  on  this  earth — the  men  who  met  in 
onvention  to  frame  the  Constitution  of  the  United 
States.     That  noble  instrument  which  must  stand 
is  a  glorious  land  mark  to  freemen  for  ever  I—- 
And if  we  do  but  follow  the  principles  laid  down 
n  that  instrument — and  the  example  of  those 
men  whose  principles  guided  our  fathers,  and 
-vhose  example  have  incited  our  countrymen  to 
tie  accomplishment  of  all  that  is  truly  illustrious 
n    our  history,    then    we    shall    perform    the 
most  commendable  act  that  can  possibly  occur  in 
ur  proceedings  here. 

Mr.  LOOMIS  said  that  had  he  anticipated  when 
e  made  his  proposition  to  amend,  that  a  discus- 
ion  of  this  length  would  have  followed,  he  should 
ave  felt  constrained  to  take  a  different  course.  He 
ad  made  it  in  conformity  with  what  he  believed 
ras  the  usual  and  safe  precedent,  never  departed 
•om  in  ordinary  legislation,  in  arranging  subjects 
T  their  committees  to  bring  before  thewhole  body . 
[e  had  never  heard  of  but  one  instance  of  a  de- 
arture  from  it  and  that  was  in  the  last  Conven- 
on.  His  course  therefore  was  the  ordinary  one 
nd  not  the  exception.  The  course  suggested  by 
.e  gentleman  from  New  York  (Mr.  JONES)  was 
e  exception.  He  would  make  this  comment 
pon  the  general  turn  of  the  debate.  He  appre- 
ended  that  if  the  Convention  either  in  commit- 


39 


whole  or  not  would  take  it  upon  itself  I  the  distinction.     It  had  been  suggested  that  in  or- 

^ 

SS  in  thTs-ire "Ire  some  three  p™  tion  wai  Lt  the  appointment  of  committees  but 
-and  instead  of  there  being  50  or  100  as  the  distribution  of  the   subjects^the  same  as  of 
had  been  suggested,  he  had  aright  to  presume  an  Executive  message. 

that  these  were  all  that  were  prepared.  Either  Mr  CHATFIELD,  if  he  understood  the  gen* 
of  those  he  had  heard  read  he  would  consent  to,  tleman  from  Herkimer,  (Mr  LOOMIS,  would  feel 
perhaps,  with  slight  modifications.  He  had  no  &g  much  bound  now  to  dissent  from  his  views,  as 
idea  that  this  subject  would  open  the  whole  de-  he  had  before.  He  (Mr.  C.)  did  not  believe 
bate— he  had  certainly  no  idea  of  goin^  into  it.—  tnat  tne  onjy  business  before  a  legislate  body 
He  would  propose  then,  that  now  either  in  the  I  ^  tjie  ExeCutive  message.  In  the  course  of  his 
House  or  the  committee,  one  of  these  proposi-  fom.  years'  experience,  as  a  member  of  the  legis- 
tions  should  be  taken  up  and  gone  through  with.  lature}  he  could  not  remember  a  single  in- 
There  was  time  enough  to  do  it  before  the  hour  stance  where  the  committees  to  whom  "he  mes* 
of  adjournment.  He  knew  of  no  one  who  desired  gao.e  wag  referred,  had  reported  a  bill  for  the  ac- 
to  make  a  speech— it  was  merely  a  question  of  tion  Of  the  House.  The  ordinary  source  of  legis- 
havins;  the  sub-committees  so  presented,  as  not  to  iatjon  wag  petitions.  Suppose  that  the  gentle- 
interfere  with  each  other— and  to  be  as  distinct  as  man>g  position,  that  the  message  was  the  only  bu- 
possible.  If  the  Convention  would  make  a  trial  sjness  Of  legislation,  was  correct,  he  would  ask  if 
of  this  for  three  or  four  hours,  and  if  the  object  wewere  to  consider  the  present  constitution,  and 
failed  to  be  accomplished,  then  he  would  be  per-  tnat  alone  ?  In  the  language  of  another  gentle- 
fectly  content  to  have  the  committee  of  17.  man,  we  stand  here  upon  the  foundations  of  soci* 

Mr.  CHATFIELD  said  that  unless  he  was  en-  ety>  with  the  elements  of  the  constitution  scatter- 
tirely  mistaken  in  his  idea  of  parliamentary  law,  ed  around  USj  in  disorder  perhaps,  for  the  purpose 
the  gentleman  from  Herkimer  (Mr.LooMis)  was,  Of  bringing  it  into  order.  Not  to  consider  the 


any  where,  to  go  into  committee  of  the  whole  to  a  committee  as  proposed  in  the  original  resolu- 
provide  merely  for  their  government  or  for  the  tion>  and  on  the  coming  in  of  their  report,  every 
appointment  of  their  committees.  This  resolu-  member  would  have  an  opportunity  of  voting  to 
tion  had  a  three-fold  object— the  action  of  the  ad0pt  or  to  amend  it.  Gentlemen  seem  to  misun- 
committee,  and  the  reference  of  subjects  to  ap-  del-stand  the  object  of  the  resolutions,  and  to  sup- 
propriate  committees.  What  was  the  ordinary  p0se  that  it  has  a  binding  range  of  inquiry^  of  ac- 
course  when  the  legislature  convened,  and  had  so  tiollj  entii-e}.y  beyond  its  purport.  The  business 
far  organized  as  to  appoint  the  officers  ?  It  was  of  the  committee  under  it  was  merely  to  suggest 
then  usual  and  customary — although  perhaps  it  tne  matters  to  be  referred  to  their  appropriate 
might  not  be  strictly  parliamentary — to  adopt  the  committees.  They  suggest  action,  when  they  have 
rules  of  the  former  body  until  they  had  provided  done  that,  their  power  ceases.  They  could  not 
new  ones  for  themselves.  The  next  step  Was  to  control  that  action.  The  only  question  was  one 
raise  a  committee  on  rules,  who  report  to  the  Lf  expediency — in  which  mode  can  we  get  at  some 
House,  who  then  adopt  it.  After  this,  when  a  tangible  plan  of  action  ?  Shall  it  be  by  going  in- 
matter  that  is  referrable  is  presented  to  the  house,  to  committee  of  the  whole;  where  the  whole  sub- 
the  presiding  officer,  without  asking  the  house  hect  win  be  under  discussion,  where  any  gentle- 
about  it,  sends  it  to  some  appropriate  committee.  man  can  suggest  a  proposition  ;  where  on  the  most 
No  man  ever  yet  heard  of  a  proposition  to  go  into  trifling  questions  discussions  for  two  or  three 
committee  of  the  whole  to  see  whether  they  should  days  wjn  Spring  up,  and  where  indeed  all  debate 
be  a  committee  of  reference.  Therefore  that  must  be  rambling  and  discursive.  Or  shall  it  be  a 
was  not  the  ordinary  parliamentary  course,  al-  committee  which  shall  set  down,  and  in  one  hour 
though  he  was  willing  to  concede  that  there  was  present  to  us  subjects  for  action  in  a  tangible 
little  in  parliamentary  legislation  analagous  to  the  form,  in  their  proper  order,  and  in  such  form  as 
proceedings  here.  wjn  ajd  the  Convention  in  coming  to  a  correct, 

Mr.  LOOMIS  did  not  differ  from  the  gentle-  and  proper  result  ?  These  were  the  only  ques- 
men  from  Otsego  (Mr.  CHATFIELD,)  in  point  of  tions  presented  in  the  resolution,  and  he  was  sor- 
fact  as  to  parliamentary  usage.  He  (Mr.  L.)  un-  ry  to  see  a  contrary  impression  thrown  out.  So 
derstood  that  the  Executive  message  was  the  sub-  far  ^  he  (Mr.  C.)  was  concerned,  he  cared  noth- 
ject  matter  before  the  legislature  for  legislation,  ing  about  the  matter.  He  was  willing  to  take  up 
and  the  only  subject  before  it.  That  officer  was  and  adopt  the  classification  of  the  gentleman  from 
required  to  present  such  subjects  as  ought  to  en-  Herkimer,  (Mr.  LOOMIS)  without  the  slightest 
gage  their  attention.  That  was  the  business  be-  examination,  as  to  whether  it  proposed  a  propel 
fore  such  a  body,  and  the  business  before  this  body  classification,  because  if  it  did  not  cover  the 
was  perfectly  analagous  to  it.  Here,  it  was  the  whole  ground,  he,  or  others  could  suggest  other 
constitution.  In  ordinary  legislation  a  member  committees.  It  could  just  as  well  be  done  now 
rises  and  moves  to  go  into  committee  of  the  whole  as  ^ev  spending  a  week  in  committee  of  the 
on  the  message,  or  in  other  words  the  subject  of  whole. 
legislation.  Now  then,  a  proposition  here  to  go 

into  committee  on  the  Constitution — our  business       The  question  was  then  taken  by  ayes  and  noes, 
—was  perfectly  analagous.    He  could  not  draw  I  (on  the  call  of  Mr.  PATTERSON,)  on  the  motion 


40 


to  go  into  committee  of  the  whole,   and  it  was 
lost,  ayes  30,  nays  91,  as  follows: 

AYES— Messrs.  Bascom,  Brown,  Burr,  Conely,  Cud. 
deback,  Daniorth,  Dubois,  Flanders,  Hoft'man,  A.  Hunt- 
ington,  Hutchinson,  Jordan,  Loomis,  McNeil,  Penniman, 
Perkins,  Russell,  Sanford,  Shepard,  Stetson,  Swackha- 
mer,  Taflt,  J  J.  Taylor,  Tilden,  To wnsend.Tuthill, Water- 
bury,  Witbeck,  Wood,  President— 30. 

NAYS— Messrs.  Allen,  Angel,  Archer,  Ayrault,  F.F 
Backus,  H.  Backus,  Baker,  Bergen,  Bouck,  Bowdish, 
Brayton,  Bruce,  Brundage,  Canjbreleng,  D.  D.  Campbell, 
R.  Campbell,  Jr.  Candee,  Chatfield,  Clark,  Clyde,  Cook, 
Cornell,  Crocker,  Dana.Dodd,  Dorlon,  Forsyth,  Gardiner, 
Gebhard,  Graham,  Greene,  Harris,  Harrison,  Hart,  Haw- 
ley,  Hotchkiss,  Hunt,  Hunter,  A.  Huntington,  E.  Hunting- 
ton,  Hyd^  Jones,  Kernan,  Kingsley,  Kirkland,  Mann,  Mc- 
Nitt,  Marvin,  Maxwell,  Miller,  Morris,  Munro,  Murphy, 
Nicholas,  Nicoll,  O'Conor,  Parish,  Patterson,  Porter, 
Powers,  Rhoades,  Richmond,  Riker,  Ruggles,  Salisbury, 
Sears,  Shatter,  Shaw,  Sheldon,  Simmons,  E  Spencer,  W. 
H.  Spencer*  St.  John.  St&nton,  Stephens,  Stow,  Strong, 
Taggart,  Tallmadge,  W  Taylor,  Vache.Van  Schoonho. 
yen,  Ward,  Warren,  White,  Willard,  A.  Wright,  W.  B. 
Wright,  Yawger,  A.  W.  Young,  J.  Youngs- 91. 

Mr.  LOOMIS  said  that  he  would  withdraw  his 
propositions  with  pleasure  if  he  supposed  the 
Convention  would  decide  now  to  designate  the 
several  committees.  Mr.  S.  made  such  motion. 

Mr.  JONES  supposed  that  the  question  was 
first  to  be  taken  on  the  amendment  of  the  gentle- 
man from  Orange,  (Mr.  BROWN,)  which  he  un-- 
derstood  was  an  amendment  to  that  of  Mr.  LOO- 
MIS',  and  should  therefore  be  voted  upon  first. 

The  PRESIDENT  stated  that  he  understood  it 
to  be  a  distinct  proposition,  to  be  acted  upon  af- 
ter the  amendment  of  the  gentleman  from  Herki- 
mer  was  disposed  of. 

Mr.  JONES  hoped  the  gentleman  from  Herki- 
mer  would  withdraw  his  proposition  for  the  pre- 
sent, in  order  to  allow  the  sense  of  the  Convention 
to  be  vested  as  to  whether  they  would  have  a 
committee  of  17  or  not.  If  they  refused,  then  we 
should  be  prepared  to  act  on  the  other  proposi- 
tion. He  had  himself  a  set  of  propositions  differ- 
ing materially  in  many  important  particulars  from 
those  that  had  been  presented.  But  he  thought 
it  would  expedite  the  business  to  take  the  ques- 
tion first  on  the  motion  to  appoint  the  committee. 

Mr.  DANA  suggested  whether  it  was  not  better 
to  strike  out  the  number  of  17,  and  have  the  reso- 
lution in  blank. 

Mr.  BROWN  regarded  the  determination  of 
the  Convention  as  already  an  expression  of  opin- 
ion on  the  very  question  involved  in  the  motion  of 
the  gentleman  from  Herkimer.  Certainly  if  they 
refused  to  go  into  committee  of  the  whole,  to  con- 
sider the  proposition,  they  would  hardly  be  dis- 
posed to  consider  them  in  the  House.  The  dis- 
tinction was  of  so  little  importance,  that  he  re- 
garded the  question,  in  effect,  as  disposed  of  by 
the  vote  just  taken.  He  hoped  the  question  would 
now  be  taken,  to  test  the  sense  of  the  Convention 
as  to  the  appointment  of  the  committee  of  17. — 
His  own  propositions  were  not  amendments,  but 
rather  a  distinct  plea,  which  he  would  with- 
draw. 

9  Mr.  TILDEN  was  quite  indifferent,  for  one, 
what  course  was  taken.  He  was  persuaded  yes- 
terday that  if  the  whole  matter  was  sent  to  the 
committee  of  the  whole,  it  could  have  been  dis- 
posed of  in  much  less  time  than  had  already  been 
occupied  in  the  discussion.  He  was  persuaded 
now  that  the  whole  matter  could  be  disposed  of  in 
the  House  to-day.  However,  he  should  offer  no 


obstacles  to  the  adoption  of  the  resolution  of  hi-* 
colleague  (Mr.  JONES.) 

Mr.  LOOMIS  concurred  with  Mr.  T.  in  the 
opinion  that  the  question  could  be  disposed  of  in 
the  House.  He  was  however  indifferent  about  it. 
He  had  not  considered  the  decision  not  to  go  into 
committee  as  one  on  the  main  question.  He  was 
willing  however,  to  please  the  gentleman,  to  with- 
draw his  proposition. 

Mr.  MANN  moved  to  strike  out  17  and  insert 
7,  as  the  number  of  the  committee. 

The  proposition  was  rejected. 

Mr.  TOWNSEND  was  opposed  to  allowing  this 
question  to  go  to  the  committee  now,  without  an 
opportunity  of  drawing  out  more  extensively  than 
had  yet  been  done,  some  indication  of  the  amend- 
ments. He  regretted  therefore  the  withdrawal 
from  the  consideration  of  the  house  of  the  amend- 
ments proposed.  He  was  aware  that  after  this 
question  was  decided  to  appoint  a  committee  of 
17,  it  was  perfectly  competent,  either  by  amend- 
ment of  the  resolution  or  by  instructing  the  com- 
mittee to  bring  up  many  and  various  questions  to 
occupy  the  attention  of  members.  But  fearing 
that  a  question  of  order  might  intervene,  he  would 
now  ask  leave  to  submit  an  amendment  to  the 
proposition  before  the  House,  as  follows  : 

1st.  That  the  committee  be  instructed  to  take  into  con- 
sideration the  propriety  ol  making  constitutional  provis- 
ions for  the  re-organization  of  the  militia. 

2nd.  To  take  into  consideration  the  propriety  of  making 
constitutional  provision  for  the  abolition  of  all  inspection 
laws. 

3rd.  What  other  medium  if  any  than  gold  and  silver 
should  constitute  the  currency  and  be  received  by  the 
State  inpayment  of  dues. 

4th.  In  relation  to  the  infringement  of  prospective  con- 
tracts—so that  legislation  shall  not  interfere  with  the 
remedy. 

5th.  Of  the  propriety  of  the  exemption  of  personal  and 
real  estate  from  judgments  where  no  fraud  was  estab- 
lished. 

Mr.  JONES  said  that  the  gentleman  could  come 
at  his  object  by  calling  for  a  division  of  the  ques- 
tion. 

Mr.  W.  TAYLOR  wished  the  gentleman  would 
withdraw  these  propositions,  after  the  house  had 
so  evidently  expressed  its  sense  in  favor  of  the 
committee.  And  when  that  committee  should 
report  he  had  no  doubt  it  would  cover  all  the 
ground  desired.  And  if  not,  for  one  he  should 
move  to  go  into  committee  of  the  whole  on  the 
report  so  as  to  afford  every  gentleman  an  oppor- 
tunity to  present  his  projet,  or  plan  of  distribution 
of  the  various  topics  he  wished  to  have  considered, 
Mr.  CHATFIELD  said,  that  if  the  gentleman  de- 
sired the  committee  to  consider  his  propositions,the 
proper  way  to  arrive  at  that,  without  embarrass- 
ing this  question,  would  be,  when  the  commit- 
tee was  appointed,  to  move  their  reference  to  the 
committee.  He  hoped  he  would  withdraw  it  now. 

Mr.  TOWNSEND  could  not  withdraw  it.  He 
thought  a  division  of  the  question,  as  suggested 
by  his  colleague,  (Mr.  JONES)  suggested  a  way  ot 
disposing  of  it.  If  he  thought  it  would  embar- 
rass the  action  on  this  question,  he  certainly  would 
withdraw  it,  but  he  could  not  see  how  it  would. 

Mr.  STRONG  was  glad  the  gentleman  had  not 
withdrawn  his  propositions.  They  could  be  vo- 
ted down  in  half  the  time  they  had  been  talked 
about.  There  were  some  most  important  ques- 
tions among  them.  The  gentleman  had  even  got 
to  the  sub-treasury.  He  supposed  the  judgment 


41 


of  the  house  had  already  been  passed,  and  he  be- 
lieved the  offering  of  these  amendments  to  be  di- 
rectly in  opposition  to  the  well  known  will  of  the 
Convention,  and  only  designed  to  take  up  time. — 
He  was  ready  to  vote  on  the  original  proposition. 

Mr.  TALLMADGE  rose  to  a  question  of  order. 
He  maintained  that  the  resolution  before  the  Con- 
vention could  not  be  divided.  This  was  a  pro- 
position whether  a  committee  should  be  appointed 
to  look  up  subject  matters  of  business  for  us,  and 
to  report.  He  could  not  therefore  regard  it  as  a  di- 
visible question.  It  was  not  necessary  to  ask  the 
withdrawal  of  these  propositions,  he  respectfully 
suggested  that  the  President  should  decide  them 
to  be  out  of  order.  After  the  committee  was  ap- 
pointed, it  would  be  competent  for  any  gentleman 
to  move  to  instruct  them  if  he  desired  it. 

The  PRESIDENT  said  a  proposition  to  amend 
the  resolution  was  in  order.  He  concurred  in  the 
opinion  that  the  gentleman  from  New- York  had 
a  right  to  call  for  a  division  of  the  question,  to  be 
taken  first  or  stricken  out.  That  was  now  the 
question. 

Mr.  HOFFMAN  said  that  the  house  having  de- 
cided to  raise  a  select  committee,  it  became  us 
now  to  shape  our  action  to  that  decision  the  best 
way  that  we  can.  He  had  no  doubt  as  to  the 
perfect  right  of  the  gentleman  from  New  York 
under  parliamentary  law,  to  ask  for  a  division  of 
the  question.  As  to  the  question  of  making  and 
filling  up  blanks,  he  would  admit  it  to  be  a  very 
proper  rule.  A  rule  requiring  questions  of  this 
kind  to  be  stated  in  blank  did  exist  elsewhere. — 
After  the  strong  indication  of  opinion  already  had, 
in  his  view  any  effort  to  make  instructions  here 
would  be  entirely  unavailing.  And  however 
pertinacious  he  might  be  in  his  own  opinions,  no- 
thing would  induce  him  to  take  a  course  of  the 
kind.  The  opportunity  of  adding  instructions 
to  the  present  resolutions,  although  it  exists  in 
form  has  passed  away  in  substance.  The  decis- 
ion not  to  go  into  committee  of  the  whole,  where 
this  could  be  done  with  all  propriety,  was  the 
strongest  decision  that  could  be  had  that  it  could 
not  be  done  in  the  house,  where  even  the  best 
manner  it  could  be  done  would  be  exceedingly 
difficult,  and  very  embarrassing.  What  other 
course  then  remains  ?  It  appeared  to  him  that 
there  was  only  one  of  two  courses  remaining. — 
One  was  to  amend  the  resolution  before  it  was  a- 
dopted,  and  the  other  to  instruct  the  committee. 
The  gentleman  from  Otsego  (Mr.  CHATFIELD) 
had  said  let  this  resolution  pass,  and  then  gentle- 
men could  instruct  the  committee,  or  send  their 
projects  to  it. 

Mr.  CHATFIELDdid  not  design  that  this  com- 
mittee should  be  instructed  at  all,  and  he  should 
certainly  vote  against  any  and  every  such  propo- 
sition. But  that  the  committee  might  have  the 
benefit  of  the  suggestions  of  gentlemen,  let  them 
be  put  in  the  form  of  resolutions,  and  referred  to 
the  committee  before  they  act  on  the  matter. — 
They  would  thus  have  the  different  propositions 
to  consider,  although  not  bound  by  any  instruc- 
tions. 

Mr.  HOFFMAN  understood  the  gentleman 
aright ;  not  as  expressing  any  opinion  as  to  whe- 
ther there  should  be  a  resolution  of  instruction, 
or  any  other,  but  only  as  indicating  the  power  anc 
course  members  might  take.  Gentlemen  may, 


after  the  resolution  has  passed,  move  instructions 
and  move  to  refer  them  to  the  committee.  That 
was  one  mode  of  getting  the  opinions  of  mem- 
jers  before  the  committee,  and  when  they  make 
their  propositions,  they  may  state  briefly  the  rea- 
sons for  proposing  them.  The  other  mode,  as  sug- 
gested by  the  gentleman  from  Onondaga,  was 
:hat  when  the  report  came  in,  either  to  move  to 
amend  it  in  the  House,  or  to  send  it  to  a  commit- 
tee of  the  whole.  At  this  time,  he  did  not  think 
any  practical  good  result  could  be  gained  by  pro- 
posing instructions  by  way  of  amendment. 

The  PRESIDENT  said  the  question  would 
now  be  on  striking  out  all  after  the  word  "  Re- 
solved," in  Mr.  JONES'  original  resolution. 

Mr.  TOWNSEND  said—"  And  to  insert  my 
substitute." 

The  PRESIDENT— A  division  of  the  question 
lias  been  called  for,  and  the  question  will  be  taken 
first  on  the  motion  to  "  strike  out." 

The  question  was  taken,  and  Mr.  TOWN- 
SEND'S  motion  was  lost. 

The  question  then  recurred  on  the  original  re- 
solution of  Mr.  JONES,  for  the  appointment  of  a 
special  committee  of  17. 

The  ayes  and  noes  were  called  for,  but  the  call 
was  withdrawn. 

The  question  was  then  put,  and  Mr.  JONES'  re- 
solution adopted. 

The  PRESIDENT  then  announced  the  follow- 
ing as  the  committee  of  17 : 

First  District — Messrs.  Jones,  Morris,  Allen. 

Second— Hunter,  Tallmadge. 

TAtYd -Bouck,  Clyde. 

Fourth— Hoffman,  Stetson. 

Fifth— Greene,  Brayton. 

Sixth— Campbell,  Sears. 

S«c<ntA-Miller,  Sheldon, 

Eighth— F.  F.  Backus,  Taggart. 

Mr.  HOFFMAN  asked  to  be  allowed  to  decline 
serving  on  that  committee.  If  personal  inconve- 
nience was  an  excuse,  he  had  it. 

Mr.  HUNTER  hoped  Mr.  HOFFMAN  would  not 
decline.  No  gentleman  was  better  qualified.  It 
was  inconvenient  for  many  others  to  serve ;  he 
(Mr.  H.)  could  well  plead  excuse  on  the  score  of 
ill  health.  And  he  hoped  that  he  would  not  be 
excused  for  mere  inconvenience. 

A  vote  was  taken,  and  he  was  excused  by  72 
ayes. 

Mr.  LOOMIS  was  substituted  for  Mr.  HOFF- 
MAN. 

MUNICIPAL  CORPORATIONS. 

Mr.  MURPHY  offered  the  following  resolution: 

Resolved,  That  it  be  referred  to  the  committee  of  seven, 
teen  to  inquire  into  the  expediency  ol  appointing  a  select 
committee  to  take  into  consideration  so  much  of  the  con- 
stitution as  relates  to  municipal  corporations. 

Mr.  MURPHY  was  induced  to  offer  the  reso- 
lution in  such  a  form  in  consequence  of  the  inti- 
mations recently  thrown  out  in  the  Convention, 
in  the  course  of  the  discussion  relative  to  ap- 
pointing this  committee  of  17,  viz:  that  unless 
propositions  were  properly  advocated  here,  that 
there  would  be  but  little  chance  before  the  com- 
mittee. And  therefore  he  would  very  briefly  state 
the  reasons  that  induced  him  to  offer  this  resolu- 
tion now.  He  would  not  trouble  the  committee 
had  we  not  had  intimations  in  the  different  pro- 
jets  which  have  been  thrown  out  by  the  gentle- 
man from  Herkimer,  and  the  gentleman  from  Or- 


42 


ange,  that  this  very  important  subject,  would  not 
receive  that  preliminary  investigation  in  the  com- 
mittee, which  the  importance  of  the  subject 
seems  to  me  at  least  to  require.  If  he  under- 
stood the  gentleman  from  Herkimer,  (Mr.  LOOMIS) 
correctly?  he  proposed  to  enquire  into  municipal 
corporations,  only  so  far  as  relates  to  debt  and  taxa- 
ation.  Now  this  is  too  limited;  too  circumscri- 
bed, and  he  could  well  conceive  how  the  mind  of 
the  gentleman  from  Herkimer,  intently  occupied 
as  it  had  been,  upon  the  great  question  of  debt 
and  taxation— may  have  overlooked — may  not 
have  fully  considered — the  other  great  questions 
that  must  come  before  us  in  relation  to  munici- 
pal corporations.  Why,  this  is  one  of  the 
most  important  questions  that  will  have  to  be 
agitated  in  this  Convention.  Your  municipal 
corporations  affect  one  fourth  of  the  entire 
population  of  this  State — even  if  we  confine  the 
same  merely  to  cities ;  but  if  you  include 
the  incorporated  villages,  then  they  affect  one 
third  of  the  whole  population  of  the  common- 
wealth. To  the  other  two-thirds  this  may  not  be 
considered  a  matter  of  much  moment ;  but  to  the 
one-third  it  is  a  question  of  vital  importance. — 
And  he  had  long  since  come  to  the  conclu- 
sion— to  the  decided  conviction— that  whether 
the  charters  of  these  corporations  derived  their 
existence  from  royal  grace,  or  State  legisla- 
tion, they  have  equally  usurped  powers,  legisla- 
tive and  judicial.  He  did  not  wish  to  go  into  de- 
tails in  connection  with  the  powers  and  abuses  of 
these  corporations;  but  merely  to  impress  the  im- 
portance of  this  enquiry  on  the  minds  of  the  com- 
mittee. The  proposition  of  the  gentleman  from 
Orange  differs  from  that  of  the  gentleman  from 
Herkimer,  and  at  the  same  time  it  seeks  to  em- 
brace too  much.  It  proposes  that  the  committee 
on  this  point  shall  investigate  the  appropriation 
of  public  monies  for  private  purposes,  also  the 
subject  of  private  corporations  and  of  municipal 
corporations.  What  a  field  of  enquiry  does  this 
present?  It  is  too  vast  for  the  powers  of  one 
committee.  The  very  first  branch  of  the  propo- 
sition opens  the  whole  subject  of  our  financial 
policy ;  and  the  subject  of  private  corporations  is 
one  on  which  the  public  mind  has  been  agitated 
almost  ever  since  the  adoption  of  the  constitution, 
as  to  their  provisions  and  their  powers.  Now,  if 
these  two  great  subjects  are  to  be  properly  inves- 
tigated by  any  one  committee,  how  much  chance 
did  his  proposition  in  relation  to  municipal  cor- 
porations stand  for  a  due  investigation. 

The  proposition  of  the  gentleman  from  Orange, 
(Mr.  BROWN,)  ought  to  be  divided  into  three  pro- 
positions ;  and  then  each  would  stand  a  chance  of 
being  fully  examined.  By  this  sub-division,  we 
should  be  greatly  the  gainers  in  other  points.  For 
he  felt  certain  that  there  were  gentlemen  here 
who  feel  themselves  fully  qualified  to  investigate 
and  decide  on  the  subject  of  private  corporations, 
who  perhaps  might  be  disposed  to  distrust  their 
knowledge  on  the  subject  of  municipal  corpora- 
tions. He  would  instance  the  honorable  gentle- 
man from  Suffolk,  (Mr.  CAMBRKLING,)  whose 
long  experience  in  the  national  legislature,  when 
this  very  subject  was  repeatedly  under  the  most 
searching  discussion — his  great  opportunities  for 
obtaining  information  in  relation  to  it,  and  his 
great  study  of  the  questions  connected  with  it — 


point  him  out  as  the  most  proper  person  to  take 
in  hand  the  subject  of  private  corporations,  whilst 
at  the  same  time  he  might  distrust  his  knowledge 
for  the  thorough  investigation  of  public  corpora- 
tions. And  the  honorable  gentleman  at  the 
head  of  the  list  of  the  New  York  delegation, 
though  he  may  not  have  been  able  to  devote 
so  much  of  his  time  thereto,  yet  having  seen 
probably  more  of  the  practical  workings  both  of 
private  and  municipal  corporations,  is  equally 
qualified  to  investigate  either.  He  would  beg 
pardon  for  thus  pointedly  alluding  to  these  gen- 
tlemen, but  he  had  done  so  merely  by  way  of 
illustration.  As  to  the  using  of  public  monies 
for  private  purposes,  there  were  many  gentlemen 
here  who  had  fully  studied  the  subject ;  but  who 
not  having  dwelt  in  cities,  had  never  felt  the 
power  from  the  throne,  greater  than  the  throne 
itself, — and  therefore  have  never  reflected  upon 
the  extraordinary  power  of  municipal  corpora- 
tions in  this  particular.  His  object  in  rising  at 
this  time,  was  not  to  detain  the  Convention  ;  but 
merely  to  impress  upon  the  minds  of  the 
Committee,  now,  the  vast  importance  of  the  sub- 
ject embraced  in  his  resolution;  and  he  would 
move  its  reference  to  that  committee  of  17. 

It  was  altered  so  as  to  read,  "the  committee  be 
directed  to  enquire  into  the  expediency,"  &c.  and 
then  it  was  adopted, 

Mr.  BASCOM  offered  the  following : 

Resolved,  That  the  committee  upon  the  order  of  busi- 
ness be  instructed  to  enquire  into  the  expediency  of  re- 
porting in  favor  of  appointing  committees  by  a  general  de- 
signation, without  undertaking  to  classify  the  several  sub- 
jects that  shall  be  referred  to  said  committees  respectively. 

A  new  or  additional  rule  to  govern  the  order  of 
business  was  read  and  ordered  to  lie  on  the  table 
and  to  be  printed. 

Mr.  TAGGART  asked  for  leave  of  absence  for 
10  days.  Granted. 

FREE  SCHOOLS. 

Mr.  MURPHY  moved  the  following  resolution : 

Resolved,  That  the  select  committee  just  ordered,  be 
directed,  or  requested,  to  enquire  into  the  expediency  of 
establishing  a  system  of  free  schools,  and  to  report  there- 
on for  the  consideration  of  the  Convention. 

Mr.  CHATFIELD  moved  that  from  and  after 
Saturday  next  this  Convention  do  meet  at  9  in  the 
morning. 

Mr.  RICHMOND  did  not  mind  meeting  at  9  if 
the  House  would  adjourn  at  12 — meet  again  at  3 
and  adjourn  at  6  P.  M. 

Mr.  BROWN  asked  if  the  House  met  at  9,  what 
time  were  the  committees  to  have  to  meet.  He 
was  willing  to  meet  at  10. 

The  resolution  lies  on  the  table  by  consent  of 
the  mover. 

On  motion  of  Mr.  STRONG,  the  Convention 
adjourned  till  to-morrow  at  11  o'clock. 

SATURDAY,  (6^  day)  June  6,  1846. 

Prayer  by  the  Rev.  Mr.  BATES. 

THE  ARRANGEMENT  OF  COMMITTEES. 

Mr.  JONES,  chairman  of  tne  committee  of  17, 
appointed  yesterday  snhmitted  a  report  as  to  the 
best  practical  mode  of  proceeding  to  revise  the  Con- 
stitution. Mr.  J.  then  stated  in  addition  to  this  re- 
port, that  in  their  resolutions  the  committee  had 
adopted  the  order  of  subjects  just  as  they  were  set 
forth  in  the  present  Constitution  of  the  State. — 


43 


They  have  divided  the  subjects  in  every  instance 
where  they  could  in  their  judgment  well  be  divi- 
ded ;  so  that  the  separate  action  of  the  various 
committees  might  not  so  interfere  with  each  other 
as  to  impede  progress.  But  in  relation  to  the 
subject  of  the  Judiciary  the  opinion  was  decided 
and  unanimous  that  there  should  be  but  one  com- 
mittee. With  regard  to  the  number  of  gentlemen 
to  be  placed  on  the  various  committees  proposed, 
they  had  not  thought  it  advisable  to  make  any 
suggestion.  He  would  now  read  the  15  Resolu- 
tions for  the  appointment  of  15  committees  to  re- 
vise the  15  sections  of  the  present  Constitution. 
Mr.  JONES  then  from  the  Clerk's  desk  read 
the  Resolutions  as  follows  : — 

1.  The  apportionment,  election,  tenure  of  office  andc^m- 
pensation  of  the  legislature. 

2.  The  powers  and  auties  of  the  legislature  except  as  to 
public  debt. 

3.  The  canals,  internal  improvements,  the  public  reve. 
nue   and  property,  and  public  debt,  and  the  powers  and 
duties  of  the  legislature  in  reference  thereunto. 

4.  The  elective  franchise  and  the  qualifications  to  vote 
and  hold  office. 

5.  The  election  and  appointment  of  all  officers,  other  than 
legislative  and  judicial,  whose  duties  and  powers  are  not 
local — their  powers,  duties  and  compensation. 

6.  The  appointment  or  election  of  all  officers  whose  pow . 
ers  and  duties  are  local,  their  tenures  of  office,  duties  and 
compensation. 

7.  The  militia  and  military  affairs. 

8.  Official  oaths  and  affirmations,  and  oaths  and  affirma- 
tions in  legal  and  equity  proceedings. 

9.  The  judiciary  system  of  the  state. 

10.  The  rights  and  privileges  of  citizens  of  this  state. 

11.  Education,   common  schools   and    the  appropriate 
funds. 

12.  Future  amendments  of  the  constitution  and  the  revis- 
ion thereof. 

13.  Th  ;  organization    and  powers    of  cities,  villages, 
towns,  counties,  and  other  municipal  corporations — their 
power  of  assessment,  taxation,  borrowing  moneyand  con- 
tracting debt. 

14.  The  currency,  and  banking  business  and  corpora- 
tions, 

15.  The  tenures  of  landed  estates. 

Mr.  PERKINS  said  that  in  the  distribution  of 
the  business  of  the  convention,  it  was  a  matter  of 
great  moment  that  no  committee  should  be  ap- 
pointed until  we  have  projets  presented  of  all  the 
business  that  is  to  come  before  the  convention. 
Some  others  may  have  subjects  to  propose  not 
embraced  in  the  report.  And  therefore  it  is  bet- 
ter not  to  appoint  committees  now,  until  we  have 
all  the  projets  before  us,  and  see  whether  the  con- 
vention approve  of  them,  or  not.  He,  therefore, 
in  order  to  give  time  to  examine  all  the  details 
of  the  report,  moved  to  lay  it  on  the  table  and 
to  have  it  printed. 

Mr.  CHATFIELD  heard  nothing  said  about  the 
executive  department,  and,  as  he  had  been  an  ad- 
vocate for  the  committee  of  17,  he  moved  to  have 
the  report  referred  to  the  committee  of  the  whole 
House  and  to  be  printed.  He  had  no  objection  to 
have  the  committee  of  17  discharged,  and  he 
made  that  motion. 

Mr.  PATTERSON  had  heard  no  reference  to 
the  executive  department,  its  duties,  &c. 

Mr.  JONES  said  they  had  taken  up  that  sub- 
ject in  all  its  parts— and  all  the  executive  officers 
both  local  and  general,  and  their  duties,  £,c. 

Mr.  PATTERSON  still  insisted  that  there  was 
no  allusion  made  to  the  executive  itself— the  Go- 
vernor— or  his  term  df  office.  He  would,  there- 
fore, at  the  proper  time,  offer  a  resolution  embrac- 
ing this  point. 


Mr.  LOOMIS  insisted  that  the  committee  had 
taken  cognizance  of  all  officers  in  the  State — their 
powers  and  duties — their  compensation  and  te- 
nure of  office — and  this  certainly  did  include  the 
Executive,  all  officers  appointed  by  him,  and  eve- 
ry matter  relating  to  him  in  his  official  capacity. 

Mr.  PATTERSON  on  further  examination  ad- 
mitted that  the  report  did  include  the  Executive, 
his  duties,  &c.,  &c. 

Mr.  WARD  thought  the  report  should  be  con- 
sidered here,  and  not  referred  to  a  committee. — 
To  read  it,  perhaps  to  discuss  it  here,  and  if  all 
concur  in  it,  to  adopt  the  first  resolution  at  once. 
Then  to  take  up  the  next,  and  so  on  until  we  had 
passed  through  the  15  which  had  been  given  us — 
and  if  they  should  be  concurred  in,  then  to  allow 
the  President  an  opportunity  to  select  these  com- 
mittees immediately.  If  hereafter  it  should  be 
found  necessary  to  provide  other  committees,  it 
can  be  done  either  on  this  day  or  on  another. — 
But  for  one,  he  did  not  see  the  necessity  of  going 
into  committee  of  the  whole.  Our  deliberations 
can  as  well  proceed  now  with  the  President  in 
the  Chair,  as  if  we  were  to  call  some  one  of  the 
members  to  occupy  his  place.  And  if  desired, 
votes  can  be  recorded  by  ayes  and  nays  here, 
which  cannot  be  done  in  committee  of  the  whole. 
He  hoped  we  should  proceed  at  once — this  being 
the  last  day  of  the  week,  and  then  having  agreed 
upon  the  committees,  allow  the  President  until 
11  o'clock  on  Monday  morning  to  select  the  com- 
mittees. He  hoped  his  friends  from  Otsego  and 
St.  Lawrence  would  withdraw  the  motion  for  the 
Printing. 

Mr.  CHATFIELD  said  it  was  due  to  himself 
to  say  that  his  better  judgment  inclined  him  not 
to  go  into  committee  of  the  whole.  But  as  so 
many  gentlemen  of  the  House  for  whom  he  had 
the  highest  esteem  had  intimated  a  great  deal 
of  solicitude  on  the  subject,  he  had  as  a  matter 
of  courtesy  yielded  his  opinions.  He  thought 
it  to  be  quite  immaterial  which  course  was  taken. 

Mr.  BROWN  said  it  was  unimportant  to  him 
whether  this  matter  was  examined  here  or  in 
committee  of  the  whole,  but  he  protested  on  his 
part  and  on  the  part  of  those  he  represented  here 
against  this  action  at  once,  as  his  friend  from 
Westchester  desired.  He  hoped  there  would  be 
no  hasty  action  of  this  Convention  on  a  subject 
so  important  as  this.  He  hoped,  that  those  gen- 
tlemen who  like  himself,  had  but  imperfectly 
heard  the  resolutions  read  from  the  clerk's 
desk,  might  have  an  opportunity  of  examin- 
ing them.  An  examination  upon  a  mere 
reading  was  wholly  out  of  the'  question.  These 
resolutions  should  be  printed,  laid  on  the  table 
of  members,  in  order  that  they  might  have  an  op- 
portunity to  take  them  home,examine  them  delibe- 
rately and  carefully,  and  see  what  subjects  were 
included  and  what  excluded.  The  gentleman 
from  Chatauque  (Mr.  PATTERSON)  was  led  to 
believe  that  all  that  portion  of  the  Constitution 
relating  to  the  executive  department  was  over- 
looked, and  he  (Mr.  B.)  confessed  such  was  his 
impression  too,  although  he  had  listened  atten-  ' 
tively  to  the  reading  of  the  resolutions.  What 
other  questions  might  be  omitted  in  them,  how 
far  he  had  been  misled  in  regard  to  them,  he  was 
wholly  unable  to  determine  until  he  could  see 
them  printed  and  have  an  opportunity  to  examine 


44 


them.  Therefore,  he  hoped  the  Convention 
would  take  no  hasty  action,  but  give  all  an  op- 
portunity to  do  so.  If  there  were  but  two  or  three 
only  who  desired  such  opportunity,  they  ought 
to  have  it,  and  he  trusted  the  Convention  would 
yield  it  to  them.  He  was  at  a  loss  to  perceive 
why  gentlemen  were  so  anxious  to  approach  this 
question.  Why  this  haste  ?  Where  the  necessi- 
ty for  this  rapid  action  ?  Why  hurry  through 
this  preliminary  arrangement  and  preparation 
of  business  before  time  has  been  had  to  con- 
sider what  to  do  ?  Do  gentlemen  expect  to 
gain  any  thing  by  it  ?  He  would  appeal  to  every 
person  who  heard  him,  if  any  one  was  prepared 
to  express  his  opinion  on  the  re-organization  of  the 
judiciary,  the  public  debt,  Executive  power,  and 
all  the  other  vast  and  momentous  questions. 

Mr.  CHATFIELD  said  that  the  motion  was  to 
refer  to  a  committee  of  the  whole,  not  to  go  into 
committee.  That  was  an  after  consideration. 

Mr.  BROWN  said  it  must  go  there,  before  the 
preliminary  steps  could  be  considered.  As  he 
stated  before,  he  was  indifferent  whether  the  re- 
solutions went  there  or  not,  all  he  desired  was 
time  to  examine  them.  He  wanted  information 
on  these  questions — he  wanted  to  hear  what  gen- 
tlemen had  to  say.  He  was  present  last  evening 
at  a  conversation  where  the  question  of  clothing 
the  boards  of  supervisors  with  additional  legisla- 
tive powers  came  up,  and  of  the  many  intelligent 
gentlemen  who  surrounded  him,  not  one  was  pre- 
pared to  say  what  course  should  be  taken,  what 
power  given  to  them,  and  what  withheld.  These 
were  the  matters  it  was  desirable  to  have  talked 
over,  and  those  who  thought  they  ought  not  to  be, 
he  apprehended  were  greatly  mistaken.  He  tho't 
three  or  four  days  ought  to  be  expended  in  the  ex- 
, animation  of  these  subjects.  But  whether  this 
was  allowed  or  not,  let  the  resolutions  be  print- 
ed, so  that  all  might  have  an  opportunity  to 
look  at  them.  Let  us  at  the  outset  lay  the  foun- 
dation for  such  a  course  of  proceeding  as  is  justi- 
fied and  demanded  by  the  labors  we  are  called 
upon  to  perform.  He  hoped,  therefore,  that  those 
who  voted  on  the  question  carried  yesterday 
would  yield  this  opportunity. 

Mr.  PERKINS  said  it  was  quite  immaterial 
whether  this  report  was  examined  in  Convention 
or  in  committee  of  the  whole.  The  gentleman 
from  Westchester,  (Mr.  WARD,)  for  whom  he  had 
a  very  high  regard,  he  was  satisfied  did  not  wish 
to  force  any  portion  of  the  Convention  into  a 
vote  or  action  until  they  had  had  an  oppor- 
tunity of  examining  the  report  which  has  been 
made  by  the  committee  this  morning,  and  of  read- 
ing it  carefully  and  attentively  with  a  view  to  see 
whether  the  subject  matters  embraced  all  the) 
desired  to  have  considered,  and  whether  they  ma) 
not  be  advantageously  sub-divided  and  substitute: 
for  others,  and  also  to  enable  them  if  desired 
to  frame  resolutions  of  amendment,  and  additions 
Intelligent  action  cannot  be  had  here  if  the  course 
proposed  by  the  gentleman  (Mr.  WARD)  is  pur 
sued,  for  it  is  evident  that  the  .Convention  mus 
.take  the  report  of  the  committee  as  they  find  it 
He  confessed  that  although  others  might  not  pos 
sess  the  same  infirmities  of  mind,  that  it  woulc 
be  impossible  for  him  to  take  the  scope  of  all  the 
propositions,  without  time  to  consider,  or  withou 
having  them  before  him  to  read.  But  the  grea 


Ejection  he  had  to  proceeding  at  once  to  the  ra- 
ification  of  the  report  of  this  committee  is  the  sup- 
>osition  entertained  by  the  gentleman  from  West- 
hester,  (Mr.  WARD)  that  if  one  of  the  resolutions 
s  passed  to-day,  one  committee  may  be  appointed 
in  Monday  morning  and  go  into  immediate  action 
m  the  subject.     This  was  precisely  the  result  he 
Mr.P.)  wished  to  avoid.  He  thought  the  President 
would  be  extremely  embarrassed  if  called  upon  to 
appoint  a  committee,  for  instance  on   the  first  of 
,he  resolutions,  not  knowing  whether  that  would 
)e  the  only  committee  raised   or  not.     If  there 
should  be  25  committees,  both  in  respect  to  the 
number  of,  and  the  persons  composing  it,  each 
would  be  differently  organised,   from  what  they 
,vould  if  there  were  only  ten  or  fifteen  of  them. 
!f  there  were  but  fifteen — and  before  organizing: 
;hem  at  all,  a  resolution  must  be  passed  determin- 
ing how  many  each  shall  be  composed  of — there 
would  probably  be  7  members  perhaps,  and  of  5  if 
there  should  be  25  committees,  which  would  place 
every  member  of  the  convention  upon  some  com- 
mittee. But  if  there  should  be  only  12  in  all,  then 
;he  committees  to  be  created  would  have  to  be 
larger,  or  a  large   portion  of  the  members  would 
36  without  employment  entirely,  until  their  re- 
ports were  received.     But  if  we  adopt  in  the  first 
instance  the  whole  projet  of  arrangement,  then  it 
can  be  intelligently  determined  what  number  they 
should  comprise,   and  the   President  could  act 
with  decision  and  intelligence  in  their  formation. 
He  proposed  to  lay  the  report  on  the  table,  and 
have  it  printed,  in  preference  to  going  into  com- 
mittee at  this  time,  for  if  we  should    it  would  be 
only  to  rise    and  report.    And  then  the  reso- 
lutions would  be  beyond  the  reach  of  the  House 
until  the  committee  were  discharged,  and  no  order 
could  be  taken  on  the  printing  unless  the  report 
was  agreed    to  in  Convention  according  to    the 
rules.     He  did  not  believe  the  business  of  the 
Convention  would  advance  a  single  step  by  hur- 
rying this  matter  on.     On  the  contrary,  if  the  ap- 
pointment of  committees    was  gone  into   before 
we  got  through  with  the  final  reference  of  the 
whole  matter,  we  should  have  to  reconsider  and 
discuss  again  many  of  the  votes  which  had  pass- 
ed, and  so  in  room  of  forwarding,  it  would  be  the 
means  of  delaying  business. 

Mr.  W.  TAYLOR  hoped  the  motion  to  refer  to 
the  committee  of  the  whole  would  prevail.  He 
fully  concurred  in  the  views  expressed  by  his 
friend  from  Orange,  (Mr.  BROWN)  of  the  import- 
ance and  necessity  of  deliberation  on  these  sub- 
jects before  action  was  had,  and  he  was  fully  per- 
suaded that  a  reference  to  that  committee  offered 
the  best  opportunity  for  the  deliberation  which 
the  subject  required,  and  for  any  gentleman  to 
present  any  additional  matter  or  any  suggestion 
he  desired  to  make,  with  reference  to  the  dispo- 
tion  of  the  subjects  embraced  in  any  one  of  the 
resolutions.  And  the  convention  would  be  better 
prepared  to  act  upon  them,  than  it  would  by  en- 
tering hastily  upon  the  consideration  of  the  sub- 
ject. It  was  not  necessary,  as  some  seemed  to 
suppose,  to  go  into  committee  of  the  whole  now; 
but  let  it  be  referred,  and  we  shall  be  able  to  go 
into  committee  at  any  time  the  convention  pleas- 
ed. After  the  report  was  printed  the  members 
could  examine  it,  and  would  then  be  prepared  to 


45 


act  upon  it    He  hoped  therefore  the  motion  would 
^  evail. 

Mr.  HOFFMAN  said  that  if  the  Convention 
failed  to  go  into  committee  of  the  whole  on  this 
motion,  he  should  feel  warranted  in  the  conclu- 
sion that  nothing  which  should  be  brought  into 
the  Convention  during  the  entire  session,  would 
in  its  judgment  be  deemed  worthy  of  being  so  re- 
ferred. He  thought  the  motion  to  be  entirely  the 
proper  one,  and  the  report  would  be  referred  to 
the  proper  committee,  but  at  what  time  and  at 
what  hour  it  should  be  considered  would  be  a  se- 
parate question.  Probably  not  until  the  printed 
report  was  before  the  members  of  the  Convention 
for  their  careful  examination.  He  supposed  from 
the  casual  reading  of  the  report,  and  from  what 
had  transpired  here,  that  so  far  as  the  committee 
were  able  to  judge  from  what  is  apparent  in  the 
existing  Constitution,  almost  every  matter  was 
referred.  But  whether  they  were  referred  in 
connection  with  other  matters,  which  a  majority 
here  might  desire  to  have  referred,  he  could  only 
suppose  from  the  mere  casual  reading  of  the  re- 
port. But  when  he  directed  his  mind  to  matters 
growing  out  of  the  actual  workings  of  the  gov- 
ernment, not  written  in  the  constitution  but 
in  action,  he  must  suppose  that  many  were 
omitted.  In  this  he  might  be  entirely  mistaken, 
but  with  the  printed  copy  of  the  report  at  his 
room,  where  he  might  read  it  with  the  benefit  of 
reflection  and  a  pencil,  and  perhaps  not  even 
then,  he  might  form  a  very  accurate  opinion  as  to 
the  best  form  in  which  the  matter  could  be  reach- 
ed. He  would  not  now  inflict  on  the  Convention 
a  speech  to  show  what  these  subjects  were,  but 
in  his  judgment  those  that  arise  out  of  the  exist- 
ing government  and  its  action  were  quite  as  im- 
portant to  be  attended  to,  and  included  in  any 
projet,  as  any  that  arose  directly  from  a  perusal 
of  the  Constitution  itself.  He  might  mention  ca- 
sually the  great  power  of  appropriating  money. — 
Shall  it  be  done  as  heretofore  for  long  years,  in 
an  endless  way,  or  shall  there  be  a  period  when 
money  appropriated  by  law  shall  cease  to  be  paid? 
In  his  judgment  an  answer  to  this  question  was 
of  vital  importance  to  the  continuance  of  free  re- 
presentative government.  Yet  he  did  not  hear  in 
the  programme  the  subject  referred  to.  There 
was  the  decision  of  the  question,  whether  we 
shall  fix  a  limit  in  the  Constitution  to  acts 
appropriating  money,  so  that  they  must  be 
renewed  at  temporary  periods.  He  had  oc- 
casion to  look  at  one  specimen  of  taxation 
of  the  State.  Having  travelled  in  the  West, 
and  having  seen  in  what  manner  the  salt  tax 
operated  as  a  bounty  to  raise  up  competition 
against  us,  he  had  been  compelled  to  say 
that  tax  was  as  impolitic  as  it  was  unjust,  and  he 
knew  of  none  in  the  history  of  human  taxation 
that  would  exceed  it  for  injustice.  Yet  he  did 
not  discover  in  the  programme,  whether  any  com- 
mittee was  proposed  as  the  proper  one  to  take 
care  of  this  subject.  Again,  in  the  course  o 
taxation  he  had  remembered  that  we  employ  on( 
directly  against  trade.  That  is  the  auction  tax 
In  his  poor  opinion,  if  there  be  not  already  in  the 
programme  a  committee  provided  to  take  the 
subject  into  consideration — it  ought  to  be  given 
over  to  some  committee  to  enquire  when  the  daj 
will  come  to  end  this  taxation  upon  commerce 


r  if  the  tax  must  continue,  when  it  shall  be 
iven  over  for  some  proper  purpose  to  the  locali- 
y  where  it  is  levied.  The  State  claims  to  be  a 
iroprietor  as  of  property,  in  the  sacred  right  of 
,vay  and  travel.  The  sovereign  does  not  claim  to 
lold  it  in  trust  for  the  million,  but  to  hold  it 
with  the  power  to  make  it  the  property  of  the 
overeign.  We  have  such  ways  now,  and  in 
a  few  years  many  of  those  constructed  will 
all  in  by  the  lapse  of  their  charters.  Do  we  in- 
end  to  adjourn  here  and  leave  the  question  open  : 
Whether  the  right  of  way  to  travel  and  transpor- 
,ation — a  right  without  which  there  could  be  no 
>roperty  in  the  land — shall  be  a  property  in  the 
sovereign  ;  or  whether  we  would  restore  it  in  so- 
ciety— its  place  in  nature — as  a  right  held  intrust 
'or  the  million  ?  The  sovereign  never  in  this  man- 
ner ought  to  make  a  revenue  from  it  beyond  a  fair, 
ust  indemnity  for  its  construction  and  mainte- 
nance. Now  whether  any  of  these  questions  were 
jroperly  referred  in  the  report  of  the  committee 
le  knew  not.  And  if  it  were  not  for  fatiguing 
the  convention  he  would  call  their  attention  to 
others,  that  he  deemed  entitled  at  least  to  as  much 
mportance  and  place  in  the  general  programme. 
They  may  all  now  be  included — the  difficulty  is 
that  we  do  not  know,  we  cannot  judge,  and  if 
compelled  to  vote  now  it  would  be  upon  faith  and 
not  upon  knowledge.  He  hoped  therefore,  the 
motion  of  the  gentleman  from  Otsego  would  pre- 
vail, and  that  as  the  report  was  printed  we  should 
50  into  committee  of  the  whole  and  consider  it. — 
[t  might  be  that  we  shall  be  entirely  satisfied  with 
it,  and  find  it  entirely  sufficient,  but  he  was  not 
prepared  now  to  come  to  any  such  conclusion. 

Mr.  SWACKHAMER  said  that  the  fears  he 
expressed  the  other  day  (in  relation  to  the  influ- 
ence of  the  special  committee  of  17  on  the  action 
of  members)  were  more  than  realized,  and  his 
predictions  fully  verified.  Even  his  friend  from 
Herkimer,  (Mr.  LOOMIS)  although  originally  op- 
posed to  the  committee,  had  come  out  of  it  fully 
wedded  to  the  propositions  and  the  course  of  ac- 
tion they  had  reported;  and  was  now  opposed  to" 
a  reference  to  the  committee  of  the  whole.  He 
deeply  regretted  to  see  this,  and  he  hoped  for  the 
sake  of  preserving  good  feeling  and  harmony,  and 
a  proper  understanding  among  the  members  of 
the  Convention  that  the  motion  of  the  gentleman 
from  Otsego  might  prevail.  We  knew  nothing 
as  yet  of  this  report,  except  by  hearing  it  hastily 
read  by  the  Clerk;  it  might  require  no  modifica- 
tion—it might  be  perfect ;  but  still  we  ought  to 
analyse  it  thoroughly  and  investigate  it  carefully, 
before  we  adopted  it.  If  it  was  not  thought  ad- 
visable (for  fear  of  unnecessary  delay)  to  commit 
the  subject  to  the  committee  of  the  whole  yester- 
day, surely  there  was  no  reason  why  it  might  not 
be  so  referred  to-day.  He  stated  yesterday  that  the 
report  of  this  committee  of  17  might  prejudge  the 
whole  matter ;  and  he  now  stated  without  fear  of 
contradiction  that  if  it  is  not  sent  to  the  commit- 
tee of  the  whole  before  the  Chair  can  form  these 
several  committees,  that  then  the  entire  subject 
will  be  prejudged  for  the  whole  of  the  session. — 
He  trusted  therefore,  that  for  the  sake  of  the  har- 
mony of  the  Convention,  and  that  candor  and  jus- 
tice which  is  due  to  the  minority  and  to  every 
member,  that  we  shall  be  allowed  at  once  to  de- 
bate this  fullv  in  committee  of  the  whole. 


46 


Mr.  WARD  said  that  he  was  the  last  man  there 
to  do  anything  which  should  curtail  the  privileges 
of  any  member  of  the  Convention.  For  the  min- 
ority's sake  he  would  not  object  to  allow  this  to 
go  to  the  committee  of  the  whole.  But  he  wished 
members  to  mark  well  what  he  said — that  if  this 
matter  was  not  settled  to-day,  there  would  be  no 
certainty  that  it  would  be  settled  during  the  whole 
of  the  next  week.  Shall  we,  or  are  we  likely,  to 
settle  it  either  on  Monday,  or  on  Tuesday,  or  even 
on  Wednesday,  or  any  other  day  ?  What  are  we 
to  gain  by  going  into  committee  of  the  whole  ? 
Who  imagines  that  we  can  settle  the  entire  ques- 
tion of  the  constitution  there,  whilst  engaged  in 
discussing  this  report  as  referred  ?  It  is  absurd 
to  suppose  it.  Who  supposes  that  any  real  or 
satisfactory  business  can  be  done  until  the  several 
committees  here  named  are  framed,  and  they  shall 
make  their  reports  ?  What  can  we  gain  by  dis- 
cussing this  subject  in  committee  previous  to  these 
reports  being  presented  for  our  investigation  ? — 
On  the  contrary  we  should  consume  at  least  one 
week  and  perhaps  more  of  the  session,  in  useless 
discussion  by  making  the  reference  proposed  by 
the  gentleman  from  Otsego  (Mr.  CHATFIELD). 
Let  these  committees  be  formed  at  once,  let  their 
reports  be  presented,  and  then  we  can  take 
them  up,  one  by  one,  in  committee  of  the 
whole,  and  propose  any  amendment  to  any  or  all 
of  them;  aye,  and  discuss  each  proposition  fully.  It 
must  be  done,  then,  under  any  circumstances,  and 
why  prematurely  plunge  into  it  now?  Nay,  more, 
a  member  could  call  on  his  friends  to  sustain  him 
in  any  objections  or  amendments  to  these  reports, 
and  compel  each  member  to  record  his  vote  there- 
on. What  more  could  be  desired?  Nothing  is  to 
be  obtained  by  letting  this  matter  go  into  commit- 
tee of  the  whole  now,  to  have  a  discussion  com- 
menced on  Monday.  And  he  (Mr.  W.)  asserted 
this  boldly  and  fearlessly.  He  was  not  one  of 
those  who  mean  at  the  outset  to  assert  that  this 
Convention  shall  not  extend  more  than  two  or 
three,  or  even  to  four  months  if  it  be  necessary. 
He  believed  that  our  constituents  have  the  fullest 
confidence  in  us — they  will  not  murmur  at  any 
reasonable  amount  of  time  that  we  consume,  it 
we  achieve  the  work  they  desire  to  see  perform- 
ed. They  do  not  regard  the  mere  matter  of  dol- 
lars in  connection  with  this  subj  ect — they  do  not 
care  whether  we  expend  $30  or  $'40  for  the  ser- 
vices of  the  pages  here — or  whether  we  have  3  or  4 
or  half  a  dozen  door-keepers — their  attention  will 
not  rest  on  any  matters  so  small  as  these — but 
they  do  wish  to  see  if  we  are  honestly,  and  earnest- 
ly, and  energetically  disposed  to  go  on  at  once, 
and  properly  transact  the  business  of  this  Conven 
tion,which  work  they  delegated  us  here  to  perform. 
And  in  carrying  out  this  point,  we  may  and  ought 
to  take  up  at  once  the  first  of  these  resolutions, 
order  a  committee  to  be  raised  under  it ;  then  take 
up  the  second,  and  have  a  second  committee  tor 
that ;  and  so  on  with  the  third,  and  fourth,  until 
we  have  similarly  disposed  of  the  entire  15  reso- 
lu^ions .  And  this  will  be  a  proper  commence- 
ment of  our  work.  Still  he  wished  no  feelings 
of  his  to  influence  the  action  of  the  house.  He 
had  not  been  one  of  this  select  committee  of  17  ; 
nor  had  he  suggested  to  any  of  his  honorable 
friends  on  that  committee  any  course  of  action  in 
relation  thereto ;  he  had  not  even  spoken  to  his 


Hon.  colleague  (Mr.  HUNGER)  on  the  subject. — 
He  should  desire,  and  feel  favored  if  the  Hon. 
President  of  this  Convention  would  assign  him  no- 
place on  any  of  these  committees,  for  he  desired 
to  come  to  the  discussion  of  all  these  subjects, 
hereafter,  entirely  untrammelled.  His  prefer- 
ences, therefore,  were  in  favor  of  appointing  the 
committees  at  once  ;  but  for  the  reasons  he  stated 
in  commencing  his  remarks,since  it  appeared  to  be 
the  wish  of  the  minority  connected  with  the  vote 
of  yesterday,  that  the  subject  shall  go  over  until 
Monday,  he  withdrew  his  proposition. 

Mr.  PATTERSON  said  that  too  much  impor- 
tance had  been  attached  to  this  matter  of  going 
into  committee  of  the  whole.  He  reviewed  the 
proceedings  of  the  past  four  days  in  relation  to 
this  matter.  Mr.  JONES'  resolution  was  offered 
on  Tuesday — laid  on  the  table  and  called  up  on 
Wednesday— again  laid  over  by  request — all 
Thursday  was  taken  up  in  discussing  the  matter 
as  to  a  special  committee  or  a  committee  of  the 
whole — besides  the  discussions  on  it  of  the  pre- 
vious day — and  yesterday  half  the  day  was  used 
up  in  the  same  way  before  they  got  a  vote  on  it; 
that  vote  was  three  to  one  against  going  into  com- 
mittee of  the  whole ;  it  was  sent  to  a  committee  of 
17,  and  they  to-day  report.  He  thought  at  first 
that  there  was  one  subject  that  was  not  covered ; 
but  he  was  now  satisfied  that  it  wss.  The-question 
now  is,  shall  we  go  into  committee  of  the  whole, 
or  take  up  these  resolutions  here  one  by  one,  and 
dispose  of  them,  As  far  as  he  or  the  minority  with 
whom  he  acted,  was  concerned,  it  was  a  matter 
of  indifference  which  course  was  taken,  except 
as  to  the  saving  of  time.  And  of  all  the  time 
consumed  in  talking  through  the  week,  none 
of  the  minority  had  taken  up  five  mi- 
nutes. The  majority  had  had  all  the  talk  so 
far,  as  he  believed.  And  the  question  now 
is  whether  we  are  to  use  up  another  whole 
week  in  this  idle  discussion  ?  He  agreed  with 
Gen.  WARD,  that  we  could  best  dispose  of  these 
resolutions  now  in  the  House,  and  send  them  to 
appropriate  committees,  and  wait  for  their  re- 
ports, before  we  renew  the  discussion.  Forfno 
matter  how  long  we  may  sit  and  talk  in  commit- 
tee of  the  whole  now,  before  we  send  the  subjects 
to  separate  committees,  when  we  rise  and  go 
out  of  committee,  the  whole  matter  will  have  to 
be  gone  over  again.  And  until  the  reports 
came  in  from  the  several  committees,  it  was  worse 
than  useless  to  talk  of  going  into  committee  of  the 
whole.  He  wished  the  report  and  resolutions  print- 
ed, and  then  we  can  take  them  up  here  in  the  house 
one  by  one,  and  decide  whether  we  will  have  such 
a  subject  referred  to  such  or  such  a  committee 
or  not.  Afterwards  we  shall  get  their  reports  and 
resolutions  and  then  fully  discuss  them  and 
amend  them.  This  is  the  only  sensible  course, 
unless  we  were  sent  here  to  do  little  else  but 
hear  ourselves  talk.  He  was  convinced  that, 
(if  what  had  been  seen  here  during  the  past 
week  was  a  sample  of  what  we  should  see 
hereafter,  or  might  expect,)  we  should  not  get  out 
of  the  committee  for  a  week  at  least,  if  we  went 
into  it  now ;  and  we  might  waste  many  weeks 
therein,  and  do  nothing  definite  there  after  all. — 
He  was  opposed  to  going  into  committee  of  the 
whole  therefore  until  we  had  the  reports  of  these 
committees  to  discuss  there ;  and  he  moved  to 


47 


lay  the  report  on  the  table  and  to  have  it  printed. 

'Mr.  CHATFIELD  said  there  would  be  no  dif- 
ference as  to  the  consumption  of  time,  between 
going  into  committee  of  the  whole  or  disposing  of 
it  in  the  House ;  or  if  there  was,  it  was  rather  in 
favor  of  the  committee  of  the  whole.  No  gentle- 
man who  had  a  proposition  to  submit  would  fail 
to  discuss  it  in  the  House  any  more  than  he  would 
in  committee  of  the  whole ;  and  to  discuss  it  there 
as  fully.  And  in  the  House  they  would  be  em- 
barrassed, and  much  time  wasted  in  calling  the 
ayes  and  noes.  In  the  committee  of  the  whole 
this  very  objectionable  feature  could  not  take 
place.  So  much  time  would  be  saved  by  deciding 
on  it  in  the  house. 

Mr.  WARD  suggested,  however,  that  when  the 
committee  of  the  whole  reported  to  the  conven- 
tion, that  every  resolution  of  that  committee  could 
be  debated  over  again,  and  on  each  one  the  ayes 
and  noes  could  be  called. 

Mr.  CHATFIELD  admitted  that  this  might  be 
done ;  but  he  did  not  believe  it  would  be  done  ; 
no  gentleman  would  feel  disposed  to  do  so,  or 
thus  to  embarrass  the  Convention  after  he  had 
had  full  opportunity  to  state  all  his  views  in  com- 
mittee of  the  whole.  Another  advantage  the'  com- 
mittee of  the  whole  had  over  the  House ;  a  great- 
er freedom  of  debate  was  allowed  there ;  many  of 
the  restrictive  rules  of  the  jjouse  had  no  applica- 
tion there.  A  gentleman  presents  his  proposition 
there  with  a  few  suggestions  in  its  advocacy  ;  he 
is  replied  to  by  an  objector;  and  the  mover  wish- 
es to  answer  this,  and  to  reply  again  and  again  to 
him  and  to  all  who  object ;  and  he  cannot  do  this 
in  the  House.  And  he  wished  all  members  to 
enjoy_the  fullest  and  freest  latitude  of  debate  on 
come  before  them — that  all 
to  state  their  views  as  often  and 
as  long  as  their  good  sense,  and  their  judgment,  and 
their  responsibility  to  their  constituents  might  dic- 
tate. Re  had  been  willing,  at  first,  to  adopt  the  re- 
port of  the  committee,  and  not  debate  it ;  but  he 
knew  there  were  many  gentlemen  who  had  many 
very  good  propositions  to  present  to  the  committee, 
which  they  considered  of  great  importance  to  their 
constituents — which  they  wished  to  discuss  and 
which  they  would  discuss — and  therefore  it  was 
best  to  give  up  the  hope  of  adopting  the  report  at 
once,  and  to  go  immediately  into  committee  of 
the  whole,  and  there  to  discuss  them  all  fully  and 
freely.  He  did  not  wish  to  move  to  go  into  com- 
mittee of  the  whole  but  merely  to  refer  the  report 
to  it,  and  to  have  it  printed,  so  that  there  shall 
be  no  fear  that  this  matter  will  be  hurried  im- 
properly through  the  Convention  without  all  due 
investigation. 

Mr.  RHOADES  thought  it  was  much  better  to 
have  all  the  propositions  that  gentlemen  intended 
to  introduce,  or  the  most  of  the  propositions  to 
appoint  committees,  brought  at  once  before  the 
house  ;  because  then  the  Chair  could  exercise  a 
better  judgment  in  forming  those  committees. — 
He  had  hoped  the  committee  of  17  would  not  have 
asked  to  be  discharged,  but  would  have  continued 
to  consider  new  propositions  which  gentlemen 
might  have  to  offer,  and  report  on  them,  wheth- 
er or  not  they  considered  them  deserving  the  at- 
tention of  a  special  committee.  But  as  the  state 
of  the  question  now  is,  he  preferred  to  refer  the 


all  subjects  that  might 
might  be  allowed  to  st 


propositions  of  members  be  presented  there  —  dis- 
cussed and  passed  upon.  And  it  would  be  much 
more  satisfactory  to  every  member  and  to  the 
Chair,  if  all  these  propositions,  as  far  as  they 
could  be,  should  be  decided  on  before  any  com- 
mittees shall  be  appointed.  Let  them  be  defer- 
red until  the  whole  subject  has  been  spread  be- 
fore us. 

Mr.  TILDEN  was  prepared  to  vote  on  these 
propositions,  and  was  indifferent  whether  he  did 
it  in  committee  or  in  the  house.  It  seemed  to  be 
apprehended  that  in  case  we  concurred  in  the 


^  of  a  large  number  of  members,  who  desire 
an  opportunity  to  consider  and  perhaps  to  amend 
these  propositions,  that  it  would  delay  the  busi- 
ness of  the  Convention.  Now  he  apprehended 
that  for  a  day  or  two,  in  the  probability,  that  a 
scheme  of  distribution  somewhat  similar  to  that 
recommended  by  the  committee,.  though  perhaps 
enlarged,  would  be  adopted,  the  Chair  could  not 
be  better  employed  than  in  considering,  as  he 
had  no  doubt  it  would  be,  how  to  constitute  the 
committees,  in  case  they  should  be  determined 
upon.  He  apprehended  the  Chair  must  have  a 
day  or  two  for  that  purpose  in  any  event,  and 
therefore  to  go  into  committee  of  the  whole, 
ivould  not  lead  to  any  delay  of  business.  He  was 
bound  to  say  that  he  thought  this  select  committee 
had  for  the  most  part  discharged  its  duty  wise- 
ly and  well—  but  he  was  not  prepared  however 
to  say  but  that  there  might  be  subjects  omitted,  — 
and  that  it  would  not  be  desirable  for  the  Con- 
vention to  look  over  the  whole  ground,  before 
entering  upon  action  on  this  subject.  There  was 
for  instance,  the  question  of  Eminent  Domain,  its 
definition  and  limitation.  Upon  that  subject  he 
he  was  free  to  confess,  that  he  had  no  very  pre- 
cise opinions  and  he  would  be  glad,  and  he  hoped, 
to  be  enlightened  by  the  mature  judgment  and 
reflection  of  other  members  of  the  Convention, 
and  it  seemed  to  him  very  proper  that  a  commit- 
tee should  be  constituted  to  consider  a  question 
so  important  as  this.  However,  he  was  indiffer- 
ent, if  the  Convention  was  prepared  to  come  to  a 
vote  on  the  report,  although  he  thought  it  would 
facilitate  the  business,  if  the  wishes  of  the  gen- 
tlemen who  desire  to  examine  the  subject  in 
committee  of  the  whole,  were  gratified. 

Mr.  ANGEL  said  that  he  was  one  of  those  who 
voted  yesterday  to  send  this  matter  to  a  commit- 
tee of  seventeen.  He  did  not  give  that  vote  be- 
cause he  wished  to  prevent  discussion  in  commit- 
tee of  the  whole.  He  wished  to  see  the  report  of 
that  committee  here,  and  upon  that  report  he  was 
desirous  of  going  into  committee  of  the  whole. 
It  was  thfit  mode  of  getting  into  committee  which 
he  preferred,  and  it  was  with  that  view  that  he 
voted  for  the  committee  of  17.  The  reason  why 
he  desired  that  they  should  be  discussed  in  com- 
mittee of  the  whole,  was  because  he  desired  to 
know  the  minds  of  all  the  members  of  the  Conven- 
tion upon  each  of  the  resolutions  ;  that  they  might 
if  necessary  be  amended,  and  the  judgment  of  the 
convention  had  upon  them  before  a  final  vote  was 
taken.  He  was  therefore  in  favor  of  the  motion 
of  the  gentleman  from  Otsego. 

Mr.  TALLMADGE  said  that  before  the  vote 
was  taken,  a  very  few  remarks  from  him  might 
perhaps  enlighten  gentlemen.  The  committee 


report  to  the  committee  of  the  whole.    Let  all  the  that  was  appointed  yesterday,  of  which  he  had  the 


48 


honor  to  be  a  member,  met  at  3  1-2  o'clock  the 
same  afternoon.  They  felt  that  the  occasion,  and 
the  fact  that  the  public  were  looking  at  us,  and 
that  we  had  been  here  a  week  without  making 
any  progress,  demanded  this  promptness.  Now 
be  could  not  consider  that  the  convention  had  en- 
tered upon  its  duties  at  all,  until  the  committees 
on  the  various  subjects  were  in  operation — and 
they  might  as  well  be  so  on  Monday  next  as  on 
any  other  day.  Allusions  have  been  made  to  a 
majority  here.  He  would  be  permitted  to  say 
that  four  of  this  committee  were  from  the  mi- 
nority here.  We  had  no  feeling  on  that  sub- 
ject in  the  committee  at  all — our  report  was 'a 
unanimous  one.  Again,  the  anxiety  of  gen- 
tlemen to  go  into  committee  of  the  whole, 
was  to  learn  the  sentiments  and  feelings  of  the 
members.  But  on  this  great  question,  the  commit- 
tee of  17  thought  that  no  opinion  should  be  drawn 
from  them,  and  hence  they  studiously  avoided 
even  a  suggestion  or  the  most  remote  intimation  of 
the  kind.  Then  again,  it  was  proposed  to  go  into 
committee  of  the  whole  for  the  interchange  of 
ideas.  But,  the  committee  did  not  mean  to  have 
that  until  the  select  committees  should  report  and 
until  the  subject  matter  was  before  us.  It  was  a 
rule  in  legislation  never  to  discuss  under  circum- 
stances where  it  was  impossible  to  call  a  vote. 
The  only  question  here  that  could  be  argued  in 
committee  was,  whether  there  should be'commit- 
tees  to  refer  the  various  articles  of  the  Constitu- 
tion to,  to  see  whether  they  required  any  amend- 
ment. The  principles  of  the  amendments  that 
might  be  desired  it  would  not  be  in  order  to  dis- 
cuss, and  no  vote  taken  could  be  a  test  one. — 
But  when  these  committees  were  appointed,  the 
moment  they  made  a  report — on  the  judiciary  for 
instance — then  the  merits  of  the  proposition  would 
come  up,  could  be  discussed,  amendments  offer- 
ed, and  a  vote  had  on  them.  You  cannot  have  a 
test  vote  on  a  mere  reference  to  a  committee.  For 
one,  he  was  anxious  that  the  public  should  under- 
stand that  we  had  gone  to  work  on  Monday.  As  to 
sympathy  for  the  chairman,  which  gentlemen  had 
expressed,  Mr.  T.  knew  that  he  would  not  feel 
embarrassed  by  any  responsibility  in  this  matter. 
He  knew  him  too  well  not  to  know  he  was  ade- 
quate to  meet  any  responsibility  in  the  appoint- 
ment of  these  committees.  What  have  the  com- 
mittee done  ?  They  have  divided  the  present 
constitution  into  fifteen  departments,to  be  referred 
to  fifteen  committees;  and,  as  had  been  said, they 
had  exhausted  their  judgment.  But  if  any  other 
gentleman  thinks  that  there  are  matters  which 
have  been  omitted,  he  could  move  to  have  another 
committee.  The  report  shut  out  nothing — no 
opinion  was  expressed — its  object  was  merely  to 
set  the  sub-committees  to  work,  so  that  we  could 
progress  with  business.  Why,  therefore,  go  for 
the  printing  of  a  paltry  list  of  committee-men  ? 
Why  send  it  to  the  committee  of  the  whole,  to 
waste  a  day,  and  perhaps  a  week,  in  discussion  ? 
Let  the  fifteen  committees  be  appointed,  and  let 
them  go  to  work.  If  any  body  has  others  to  add, 
let  them  be  added,  and  let  them  go  to  work,  too. 
We  have  materials  enough  in  this  convention.  And 
he  had  no  hesitation  in  adding,  that  it  was  his  pur- 
pose to  move  that  each  committee  should  consist 
of  seven  members,  except  the  judiciary,  which  he 
should  move  should  consist  of  17  members,  as  it 


was  one  of  momentous  importance.  Here,  in  re- 
lation to  the  judiciary,  it  might  be  said  that  we 
should  have  one  for  each  subject;  but  the  com- 
mittee, on  looking  at  it,  saw  that  it  could  not 
be  divided  without  hazarding  the  phraseology 
of  the  constitution,  and  the  unity  of  its  arti- 
cles. Let  four  men  write  on  the  same  sub- 
ject, and  it  will  at  once  be  seen,  how  variant 
would  be  the  construction  that  might  be  attached 
to  the  language  of  each.  If,  therefore,,  the  sub- 
ject was  sub-divided,  posterity  would  have  full 
occupation  in  construing  the  language  used. — 
Therefore  he  hoped  the  question  would  be  taken. 
The  committee  desired  to  express  no  opinion, 
other  than  that  the  several  subjects  should  all  be 
referred  to  committees.  The  printing  of  the  re- 
port would  give  us  no  information,  and  what  those 
committees  shall  do,  he  apprehended  was  a  ques- 
tion not  open  for  discussion.  It  was  a  mere  na- 
ked question  of  reference. 

Mr.  ANGEL  said  he  regretted  that  the  gentle- 
man who  had  just  taken  his  seat  had  misunder- 
stood him.  Certainly  if  he  (Mr.  A.)  used  the 
word  feeling,  he  did  not  intend  to  do  it  in  the 
odious  sense  in  which  the  gentleman  had  present- 
ed it.  He  only  intended  to  express  the  idea  that 
he  was  anxious  to  know  the  minds,  opinions,  and 
views  of  all  the  members  of  the  Convention,  be- 
fore he  gave  a  vote  £i  a  single  one  of  these  reso- 
lutions, and  he  hopea  a  contrary  impression  would 
not  go  abroad. 

Mr.  TALLMADGE  begged  the  gentleman's 
pardon.  He  certainly  did  not  intend  to  give  any 
such  impression. 

Mr.  STETSON  said  that  the  venerable  gen- 
tleman from  Dutchess,  (Mr.  TAKLMADGE,) 
had  made  an  allusion  to  the  action  of  the 
committee  of  17  in  which  he  did  not  fully  con- 
cur, perhaps  under  a  misapprehension  of  what 
passed.  It  was  very  true  that  the  action  of 
that  committee  was  most  harmonious,  and  for  the 
reason  that  its  duties  very  of  a  very  simple  and 
mechanical  character,  under  a  strict  construction 
of  the  resolution,  and  the  discussion  had  upon  it 
in  the  house.  The  action  of  the  Convention  in 
refusing  to  go  into  committee  of  the  whole  had  a 
very  broad  influence  on  the  action  of  the  com- 
mittee. It  necessarily  limited  its  duties  to  a  mere 
subdivision  of  the  existing  constitution  according 
to  its  general  parts.  It  did  not  pretend  to  assume 
to  cut  up  the  subjects  of  amendments  which  will 
come  before  the  Convention,  but  only  to  furnish 
subjects  to  amend  by.  And  yet  the  whole  duty 
of  this  Convention  was  in  part  not  touched  at  all 
by  the  committee.  We  have  drawn  these  conve- 
nient rules  for  the  first  action  of  the  body,  and  the 
question  is  whether  debate  may  now  arise  upon  the 
duty  to  be  performed  or  whether  it  shall  be  re- 
stricted until  that  duty  is  performed?  Whether  the 
committees  shall  go  out  enlightened  by  discussion, 
or  go  out  and  guess  at  the  intention  of  the  body, 
and  come  back  and  meet  opinions  wholly  unfor- 
seen.  This  whole  matter  has  been  discuss- 
ed by  the  people,  a  very  numerous  committee 
of  the  whole.  We  are  their  representatives,  a 
smaller  body,  and  yet  almost  the  first  action  we 
meet  on  this  floor  is  a  most  visible  distrust— not 
of  those  who  sent  us  here,  but  of  each  other. — 
We  dare  not  hear  each  other  talk.  As  he  under- 
stood the  report  of  the  committee  of  seventeen*  it 


49 


was  limited  entirely   to  the  distribution  of  the 
duties  of  those  committees,  mentioned  in  the  re 
port,    under    the    expectation    that   suggestion 
might  be  made  in  Convention,  which  would  im 
prove  it — and  without  intending  to  determine  the 
time,  or  way  it  should  be  adopted,  or  the  numbe: 
of  committees — whether  adopted  instanter,  laic 
on  the  table,  printed  and  referred  to  the  commit 
tee  of  the  whole,  or  in  any  other  manner,  which 
the  wisdom  of  the  body  might  determine.     Tha 
was    his    view,    and    he    could    not    cordiallj 
have  agreed  to  any  other  report.     For  himself,  h( 
wished  to  make  no  propositions  to  the  committee 
of  the  whole  or  to  the  Convention,  but  he  die 
ardently  desire  to  hear  such  arguments  and  pro 
positions  as  other  gentlemen   who  had  not  ye 
occupied  the    floor,  might  submit  for  consider- 
ation.    We    were  sent    here    for  that  purpose 
and  if  any  one  may  desire  to  submit  his  views 
and  we  now  refuse  him  the  opportunity,  it  woulc 
be  doing    injustice  to    him,  and  to  those  who 
stand  behind  and  support  him.      Let  it  be  the 
committee    of   the    whole,  he    had    confidence 
there.     Let  us  not  make  the  mistake  of  supposing 
this  a  legislative  body  with  general  powers.     Lei 
us  not  be  guided  by  resemblances  and  analogies, 
false  to  the   occasion   and   circumstances  under 
which  we  meet.     This  is  not  a  two  house  legis- 
lature, with  broad  legislative  powers ;  it  is  a  Con- 
vention, and  at  the  most,  the  house  of  Assembly, 
with  power  to  pass  a  single  bill.     And  yet  here  is 
a  proposition  to  refer,  with  instructions  to  the  com- 
mittees to  report  distinct  sections,  and  that,  too, 
without  combination   of  action,   or  any  previous 
consideration  of  the  bill  as  a  whole.     We  were  to 
send  a  committee  to  see  if  they  could  agree  upon 
what  we  ourselves   had  not  agreed.     Even  upon 
the  adoption  of  the  rules  he  was  almost  disposed 
to  rise  and  suggest  whether  we   ought  not  to  go 
into  committee  of  the  whole  on  the  whole  Consti- 
tution.   Net  for   the  consideration  of  its  simple 
parts,  but  of  the  whole   connected  instrument 
with  its  dependencies,  and  on  which  we  wish  to 
obtain  some    intimation  of  the  views  of  the  Con- 
vention, before  it  was  sent  to  a  committee  to  be 
guessed  at.     Therefore,  he  was  in  favor  of  a  dis- 
cussion, if  gentlemen  desired  it,  in  committee  of 
the  whole.     Let  us  not  distrust  each  other. 

Mr.  RUGGLES  said  that  if  the  only  object  in 
going  into  committee  of  the  whole  was  to  propose 
new  subjects  for  consideration  he  should  be  a- 
gainst  it,  on  the  ground  that  they  could  as  well  be 
proposed  in  the  house,  and  every  one  of  them  re- 
ferred by  the  convention,  without  difficulty  and 
almost  without  debate,  because  they  would  be 
mere  subjects  of  reference.  No  member  of  the 
body  could  vote  against  the  reference  of  any  sub- 
ject that  was  proposed  to  be  referred,  unless  it 
was  of  so  trivial  a  character  as  not  to  deserve  consi- 
deration, or  such  as  to  shock  our.sense  of  propriety. 
He  did  not  understand  that  to  oe  the  sole  object 
of  going  into  committee.  One  of  the  objects  pro- 
posed, as  he  understood  it,  was  to  enquire  wheth- 
er any  subject  referred  to  one  of  the  commit- 
tees might  not  with  greater  propriety  be  referred 
to  some  other  committee.  There  are  some 
subjects  dependent  upon  each  other,  and  there 
might  be  some  doubt  whether  it  should  be  refer- 
red to  one  committee  or  another.  For  instance, 
whether  the  question  as  to  the  power  of  appoint- 
ing judicial  officers,  should  go  to  the  committee 


on  the  judiciary  or  to  the  one  upon  the  appoint- 
ing power,  may  be  one  of  some  importance.  He 
had  observed  yesterday  when  the  gentleman  from 
Herkimer  (Mr.  LOOMIS)  presented  his  proposition 
that  he  proposed  to  refer  the  appointing  power 
of  judicial  officers  to  a  different  committee  from 
that  on  the  judiciary,  and  it  struck  him  that  that 
classification  had  much  to  recommend  it.  By  the 
report  of  the  committee  to-day  he  observed  that 
the  question  was  referred  to  the  judiciary  com- 
mittee. It  might  therefore  be  a  question  worthy 
of  consideration  whether  some  of  these  subjects 
dependent  upon  each  other  were  properly  refer- 
red, as  designated  in  the  report  of  the  committee. 
It  was  under  that  idea,  and  in  the  full  belief  that 
it  was  proper  to  allow  any  gentleman  who  might 
wish  to  make  a  proposition,  ample  opportunity  for 
the  consideration  of  it,  that  he  was  in  favor  of  go- 
ing into  committee  of  the  whole.  But  for  the 
purpose  of  merely  making  new  propositions  it  had 
not  struck  him  that  such  a  proceeding  was  neces- 
sary, as  it  appeared  to  him  that  there  was  no 
disposition  to  refuse  time  for  the  ample  conside- 
ration of  any  subject  which  gentlemen  might 
choose  here  to  propose.  But  because  it  might  be 
proper  to  consider  whether  all  these  references 
were  so  classified  among  the  different  committees, 
as  would  best  tend  to  the  object  in  view  he  should 
vote  for  the  committee  of  the  whole. 

Mr.  CHATFIELD  wished  to  suggest  a  divis- 
ion of  the  question.  He  would  move  to  take  it 
first  on  printing;  second  on  discharging  the  se- 
lect committee  ;  and  lastly  on  '  going  into  com- 
mittee of  the  whole. 

Mr.  PATTERSON  said  that  whatever  might 
be  the  action  on  this  report,  he  thought  all  would 
agree  that  the  Convention  had  taken  one  step 
which  had  saved  very  much  of  their  time. — 
That  was,  the  appointment  of  the  committee  of  17 
to  draw  up  and  frame  resolutions  in  relation  to 
the  various  subjects  to  be  referred  to  standing 
committees.  That  duty  had  been  accomplished 
by  the  committee  during  the  afternoon  of  yester- 
day, and  they  have  accomplished  more  work  in 
that  time  than  could  have  been  performed  in 
committee  of  the  whole  for  a  whole  week. — 
Therefore,  whatever  might  be  the  action  of 
the  Convention  hereafter,  it  had  accomplish- 
ed very  much  by  its  action  of  yesterday. — 
Now  as  to  the  length  of  time  that  may  be 
consumed,  he  disagreed  entirely  with  his  friend 
from  Otsego  (Mr.  CHATFIELD,)  when  he  said  that 
he  experience  of  both  of  them  ought  to  have  sa- 
isfied  both,  that  much  less  time  was  consumed  in 
committee  than  in  the  House.  His  experience 
was  entirely  to  the  contrary.  The  gentleman  said 
hat  the  matter  could  be  taken  up  in  the  house, 
md  the  ayes  and  noes  called  on  every  question, 
tfhich  could  not  be  done  in  committee.  His  (Mr. 
?.'s)  answer  to  that  was,  that  in  committee  of  the 
vhole  each  member  was  not  restricted  to  speak  - 
ng  twice,  but  could  speak  as  often  and  as  long  as 
he  pleased.  Then  when  the  question  came  into 
he  house,  he  had  a  second  chance  at  it,  could 
peak  twice  again  if  he  chose,  and  could  have  the 
iyes  and  noes .  called  on  every  question.  Some 
members  think  this  matter  should  be  referred  like 
he  Governor's  message  to  a  committee  of  the 
vhole.  What  is  the  experience  of  legislation  in 
he  matter  of  referring  the  Governor's  message. — 
Before  the  year  1839,  there  never  was  any  debate 


50 


on  the  message — it  was  merely  referred  to  the 
committee  of  the  whole  as  a  matter  of  courtesy  to 
the  Executive.  The  first  general  debate  on  the 
message  was  in  1839,  and  since  that  period  it  has 
been  made  a  peg  to  hang  speeches  upon,  not  for 
the  legislation  of  the  house,  but  for  sending  home. 
And  during  the  last  session,  the  message  was  un- 
der discussion  until  the  last  week  of  the  session — 
which  lasted  nearly  until  May.  If  we  had 
not  decided  as  we  did  yesterday,  to  have  the 
reference  to  the  committee  of  17,  we  might  have 
gone  into  committee  of  the  whole,  and  remained 
there  as  long  as  did  the  message  this  year.  He 
promised  that  if  the  convention  went  into  com- 
mittee, they  would  have  no  long  speeches  from 
him.  He  came  here  to  act  and  not  to  talk.  It 
was  the  most  simple  thing  in  the  world  to  dispose 
of  these  resolutions.  If  the  first  resolution  was 
taken  up  and  read  carefully,  so  that  all  might  hear, 
he  presumed  every  member  would  be  prepared  to 
vote  aye  or  nay  on  the  question.  It  was  not  a 
question  whether  we  are  in  favor  or  opposed  to 
certain  amendments  to  be  made  to  the  constitu- 
tion, it  was  merely  whether  we  would  raise  a 
committee  to  put  in  shape  the  action  of  the  con- 
vention. And  it  seemed  to  him  that  all  the  time 
that  should  be  occupied  in  committee  of  the  whole, 
would  be  just  precisely  so  much  time  lost.  We 
could  dispose  of  the  question  in  the  house. 

Mr.  SWACKHAMER  called  for  the  question  on 
the  motion  to  print. 

It  was  carried,  as  was  the  motion  to  discharge 
the  committee. 

Mr.  PATTERSON  called  for  the  ayes  and  noes, 
on  the  motion  to  go  into  committee  of  the  whole, 
and  the  House  ordered  them. 

Mr-  MORRIS  said  he  had  voted  for  the  com- 
mittee of  17,  because  he  considered  that  commit- 
tee would  fulfil  the  ordinary  duties  of  a  commit- 
tee on  rules,  such  as  are  usually  formed  in  legis- 
latures. Now  one  committee  had  already  report- 
ed rules,  (Gen.  WARD'S)  and  this  last  had  virtual 
ly  reported  the  standing  committees — thus  making 
a  division  of  the  ordinary  duties  of  such  commit- 
tees. He  had  not  intended  or  desired  that  they 
should  express  an  opinion  on  the  subjects  to  be 
referred,  but  merely  to  designate  the  several  com- 
mittees, and  the  subjects  to  be  specially  commit- 
ted to  them.  They  had  reported,  and  there  were 
but  two  points  for  the  committee  to  discuss :  Has 
this  committee  of  17  referred  to  any  one  commit 
tee,  two  or  more  subjects  that  might  clash  with 
each  other,  or  that  ought  to  be  sent  to  different  or 
separate  committees  :  and  secondly,  has  the  com- 
mittee omitted  to  name  a  large  enough  number  o 
committees.  That  is,  is  there  any  subject  omittec 
that  ought  to  have  a  special  committee  to  consid 
er  it.  These  were  the  only  two  points  to  consid 
er,  and  some  gentlemen  thought  this  would  bi 
done  best  in  committee  of  the  whole;  and  others 
feared  there  would  be  scarcely  any  end  to  the  de 
bate.  What  experience  he  had  had,  induced  hirr 
to  believe  the  debate  would  be  likely  to  be  a  pret 
ty  long  one — but  still  he  was  one  of  those  mer 
who  believe  that  an  ounce  of  experience  wai 
worth  a  pound  of  theory — and  he  was  willing  t< 
go'into  committee  of  the  whole  to  get  that  expe 
rience;  for  a  discussion  for  one  or  two  days — am 
short  ones  at  that— will  show  if  this  discussion  i: 
to  last  but  a  few  days,  or  to  last  some  weeks.  A 


.ny  rate,  any  member  c9n  at  any  time  move  that 
he  committee  rise,  and  then  the  House  can  stop 
iebate  by  refusing  leave  to  sit  again ;  and  to  get 
t  once  at  the  practical  views  and  ideas  of  gentle- 
men, he  should  vote  to  go  into  committee  of  the 
.vhole  at  once. 

The  question  was  then   taken  on   Mr.  CHAT- 
FIELD'S  motion  to  refer  the  report  of  the  commit- 
ee  of  17  to  the  committee  of  the  whole  and  to 
>rint  the  same. 
This  was  carried — ayes  71,  noes  39— as  follows : 

AYES— Messrs.  Allen,  Angel,  Baker,  Bajscom,  Bow- 
dish,  Brown.Cambreleng  R.  Campbell,  jr.,  Candee,  Chat- 
field,  Clarke,  Clyde,  Conely  Cornell,  Crooker  Cuddeback 
Dana,  Dorlon,  Dubois,  Flanders,  Gebhard,  Graham.Greene, 
larris,  Hart,  Hoffman,  Hunt,  Hunter,  A.  Huntington,  E. 
iuntington,  Hutchinson,  Jones,  Jordan,Kc>rnan,  Kirkland, 
Mann,  McNeil.  Maxwell,  Morris,  Murphy,  Nellis,  Nich- 
olas, Nicoll,  O'Connor,  Penniman,  Perkins,  Porter,  Pow- 
ers, Rhoades.Richmond,  Riker.Ruggles,  Russell,  St.  John, 
Sanford,  Shaver,  Shepard,  Stanton,  Stephens,  Stetson, 
Swackhamer,  Taft,  J.  J.  Taylor,  W.  Taylor,  Tilden,  Tut- 
hill,  Waterbury,  White,  VVitbeck,  Wood,  the  President— 71. 

NOES.— Messrs.  Archer,  Ayrault.  F.  F.  Backus,  H. 
Backus,  Bouck,  Brayton,  Bruce,  Burr,  Cook,  Dodd,  Gard- 
ner, Harrison,  Hawley.Hotchkiss,  Hyde.Kingsley.McNitt, 
Viarvin,  Miller,  Parish,  Patterson,  Salisbury,  Sears,  Shaw, 
Sheldon,  Simmons,  E.  Spencer,  W.  H.  Spencer,  Stow, 
Strong,  Tallmadge,  Van  Schoonhoven,  Ward,  Warren, 
Willard,  W.  B.  Wright,  Yawger,  A.  W.  Young,  J.  Youngg 
—39. 

CONSTITUTIONS  OF  OTHER  STATEH. 
Mr.  RUSSELL,  (on  leave  being  given,)  pre- 
sented the  report  of  the  committee,  to  whom  was 
referred  the  subject  of  having  all  the  existing 
State  constitutions  printed  for  the  use  of  the  mem- 
bers. The  report  states  that  Mr.  WALKER'S  Book 
is  merely  a  s^  nopsis  of  the  several  constitutions; 
and  recommends  the  purchase  of  150  copies  of  a 
book  called  "American  Constitutions,"  published 
in  Philadelphia,  and  to  have  printed  in  another 
volume  all  the  matters  stated  by  Mr.  KIRK- 
LAND  on  Thursday. 

Mr.  BROWN  said  the  Legislative  amendments, 
relative  to  "State  Debts  and  Liability,"  and  to 
the  "Judiciary;"  he  wished  to  have  embodied  in 
the  book  to  be  printed.  This  was  also  embodied 
in  the  report. 

Mr.  RUSSELL  said  that  the  report  says  "And 
such  other  matter  as  the  Convention  may  direct 
before  the  book  comes  to  be  printed." 

Mr.  CROOKER  moved  also  to  print  with  the 
rest  a  statement  of  the  finances  of  the  State — con- 
taining the  several  funds  separately — the  amount 
received  and  disbursed— how  invested  and  how 
otherwise  diposed  of. 

Mr.  HOFFMAN  said  that  this  would  be  a  most 
voluminous  book.  A  call  could  be  made  on  the 
Comptroller  for  all  the  information  required ;  but 
to  go  into  the  history  of  the  half  a  dozen  trust 
funds  controlled  by  the  State,  would  entail  great 
expense. 

Mr.  F.  F.  BACKUS  wished  to  know  the  ex- 
pense of  all  this  printing. 

Mr.  RUSSELL  said  the  "  constitutions"  would 
cost  $1  and  the  other  book  about  $1.25. 

The  report  was  accepted  by  the  House,  and 
agreed  upon. 

Mr.  MORRIS  asked  leave  of  absence  for  ten 
days  for  Mr.  SMITH,  of  Chenango.  Granted. 

Mr.  TAYLOR,  of  Onondaga,  asked  leave  of  ab- 
sence for  one  week  for  his  colleague.  Granted, 


51 


BUSINESS  OF  THE  COURTS. 

Mr.  NICOLL  offered  a  resolution  of  enquiry  to 
the  Clerks  of  the  Supreme  Court,  as  to  the  causes 
on  thetlalendar  of  said  Court  in  1844  and  1845; 
how  many  were  heard,  and  the  date  of  such  caus- 
es. The  same  information  as  to  causes  in  the 
Court  of  Chancery.  The  same  as  to  the  Superior 
Court  and  the  Marine  Court  of  the  city  of  New 
York. 

The  resolution  was  adopted. 

STENOGRAPHERS. 

Mr.  CROOKER  laid  on  the  table  a  resolution  for 
the  appointment  by  ballot  of  two  competent  ste- 
nographers to  report  the  debates  of  the  conven- 
tion. 

EXECUTIVE  PATRONAGE. 

Mr.  KIRKLAND  called  for  the  consideration  of 
his  resolution  offered  on  Tuesday  last,  calling  for 
information  from  the  Secretary  of  State  as  to  the 
amount  of  Executive  patronage.  He  presumed 
every  member  felt  the  importance  of  having  cor- 
rect information,  and  he  desired  that  this  resolu- 
tion might  be  adopted  without  amendments  being 
added  to  it.  The  report  of  the  Secretary  of  State 
on  this  subject  would  be  found  to  be  a  very  volu- 
minous one. 

Mr.  STOW  withdrew  his  amendment  calling 
for  the  same  information  in  relation  to  the  patron- 
age of  the  Canal  Board. 

Mr.  RHOADES  proposed  an  amendment  to 
ascertain  also  the  salaries,  fees,  and  compensation 
of  the  several  officers.  It  was  accepted  by  Mr. 
KIRKLAND. 

Pending  the  question  on  the  resolution  thus 
amended,  the  Convention  adjourned  until  Mon- 
day morning  at  11  o'clock. 

MONDAY,  (1th  day,')  June  8. 

Prayer  by  the  Rev.  Mr.  BENEDrer. 
RULES. 

Mr.  STRONG  wished  to  ask  the  PRESIDENT 
whether,  when  there  was  no  rule  on  a  particular 
point  that  had  been  reported  by  the  committee, 
the  convention  would  consider  itself  as  un- 
der the  usual  tenure  of  parliamentary  rules  in  that 
respect. 

The  PRESIDENT  said  that  upon  any  subject 
where  the  committee  had  reported  no  especial 
rule,  that  he  understood  the  usual  parliamentary 
rules  would  guide  in  all  such  cases. 

Mr.  STRONG  then  replied  that  in  several  in- 
stances resolutions  had  been  sent  up  to  the  Chair 
with  no  name  endorsed  thereon.  This  produced 
great  confusion.  The  parliamentary  rule  required 
that  when  any  member  presented  a  resolution,  he 
should  endorse  his  name  thereon.  But  the  PRE- 
SIDENT had  called  out  sometimes,  "  the  gentle- 
man from  Onondaga" — now  there  was  more  than 
one  gentleman  from  Onondaga.  Again,  he  would 
call  out,  "  the  gentleman  from  New  York" — now 
there  were  16  gentlemen  from  New  York.— 
(Laughter.)  And  this  produces  great  inconve- 
nience— particularly  to  the  Reporters — whose  la- 
bors being  exceedingly  arduous,  and  likely  to  be 
much  more  so,  ought  to  have  every  facility  af- 
forded them.  It  is  also  inconvenient  for  the 
Clerks,  inasmuch  as  the  name  of  the  mover  is 
required  always  to  appear  on  the  journal. 

The  PRESIDENT  then  stated  that  what  he 
(Mr.  STRONG,)  had  said  was  quite  correct — the 


rule  required  that  each  member  should  endorse 
his  name  on  his  own  resolution,  and  he  trusted 
that  gentlemen  would  govern  themselves  accord- 
ingly. 

ORDER  OF  BUSINESS. 

Mr.  W.  TAYLOR  called  for  the  consideration 
of  the  rule  for  the  order  of  business  which  was 
presented  last  week,  and  laid  on  the  table.  It  is 
as  follows : 

After  the  reading  and  approving  of  the  Journal,  the  or- 
der of  business  shall  be  as  follows: 

1.  Petitions,  and  communications  from  the  Governor, 
the  State  officers,  and  from  all  other  persons  to  whom  in- 
quiries may  be  addressed  by  order  of  the  Convention;  2. 
Reports  of  committees;  3.  Motions,  resolutions  and  notices; 
4.  Unfinished  business;  5.  Special  orders;  6.  General  or- 
ders. 

Mr.  MARVIN  doubted  the  propriety  of  adopt- 
ing this  as  one  of  the  standing  rules  of  the  Con- 
vention. It  would  lead  to  much  embarrassment. 
In  the  Convention  of  1821  no  standing  rules  were 
adopted,  or  any  others  to  regulate  the  order  of  bu- 
siness except  such  as  were  reported  by  the  com- 
mittee on  rules.  We  have  here  adopted,  substan- 
tially, the  rules  that  were  passed  in  that  Conven- 
tion ;  and  as  our  committee  have  reported  a  set  of 
rules,  and  we  have  adopted  them,  he  did  think  it 
would  be  but  a  proper  act  of  courtesy  to  refer  this 
rule  to  them.  He  saw  no  necessity  for  any  other 
rule  for  regulating  the  order  of  business  than  the 
usual  parliamentary  rule,  and  which  he  believed 
our  committee  will  report  to  us  in  a  day  or  two. 
These  special  rules,  for  regulating  the  order  of 
business,  frequently  produce  much  confusion. — 
If  we  were  to  adopt  this,  we  should  have  to  fol- 
low it  literally ;  no  resolution  could  be  offered  till 
all  reports  had  been  called  for  and  discussed  ;  and 
no  reports  presented  until  all  petitions  had  been 
disposed  of.  And  in  this  way  much  valuable 
time  would  be  lost  every  day  ;  also  in  discussing 
whether  such  and  such  a  motion  was  in  order  or 
not.  Such  would  certainly  be  the  case  here  if 
the  resolution  was  adopted.  It  might  be  neces- 
sary to  have  somewhat  such  a  rule  as  that  in  a  le- 
gislative body,  but  not  in  this  Convention.  He 
would  not,  however,  decidedly  oppose  the  resolu- 
tion at  this  time,  but  he  would  move  its  reference 
to  the  committee  on  rules. 

Mr.  TILDEN  said  that  committee  had  been 
dissolved. 

Mr.  W.  TAYLOR  said  he  did  not  desire  to 
press  his  motion  at  this  time,  particularly;  but  he 
did  not  consider  Mr.  MARVIN'S  arguments  on  this 
point  to  be  sound.  He  believed  that  this  very 
rule,  if  adopted,  would  be  the  means  of  prevent- 
ing those  very  discussions  on  points  of  order, 
which  the  gentleman  deprecated  so  much  as  the 
result  of  the  adoption  of  special  rules.  While 
no  such  thing  as  a  two-third  rule  exists,  a  ma- 
jority can  at  any  time  suspend  a  rule.  The  rule 
he  had  proposed  would  be  found,  he  believed, 
very  effective  in  facilitating  the  business  of  this 
Convention;  the  order  of  business  laid  down  in  it, 
was  that  which  was  usually  adopted  in  all  legis- 
lative bodies;  and  if  any  such  rule  for  the  order 
of  business  was  to  be  adopted  at  all,  he  could  not 
see  the  necessity  of  referring  this  to  a  committee, 
though  he  would  not  oppose  the  reference. 

Mr.  MARVIN  said  it  would  be  much  the  bet- 
ter course  that  the  resolution  should  take  that  di- 
rection. 

Mr.  HOFFMAN  said  that  when  a  set  of  rules 


52 


were  reported  to  any  deliberative  body,  and  no  spe- 
cial order  of  business  was  reported  with  them,  he 
had  always  supposed  that  the  members  should  be 
guided  in  the  matter  by  the  usual  parliamentary 
rules,  as  laid  down  in  Jefferson's  Manual.  And 
if  that  was  the  case — and  such  was  his  opinion — 
he  saw  no  necessity  for  any  further  action  on  the 
subj  ect.  However  he  would  like  to  have  the  gen- 
tlemen of  that  committee  say  what  their  opinion 
on  this  subject  was,  or  what  they  had  intended 
should  govern  the  order  of  business  here.  For  no 
doubt  those  gentlemen  had  discussed  this  point  in 
committee.  [No  one  answered.]  But  as  there 
were  no  members  of  that  committee  present,  he 
thought  it  best  that  the  resolution  should  be  re- 
ferred to  them. 

Mr.  C  AMBRELENG  said  that  there  were  some 
of  that  committee  present,  altho'  their  Hon.  chair- 
man was  not.  The  committee  had  not  thought 
it  advisable  to  adopt  any  such  rule  as  this,  and 
for  that  reason  did  not  report  one.  If  this  reso- 
lution should  be  adopted  it  would  produce  very 
great  inconvenience.  The  President  would  be 
compelled  each  morning  to  go  all  over  the  list — 
to  call  for  all  petitions — then  Reports,  Motions, 
Resolutions;  &c.  &c. ;  and  this  would  cause  a 
very  great  and  unnecessary  waste  of  time.  In 
the  preliminary  stages  of  this  convention,  it  was 
not  necessary  that  the  stringent  application  of 
strict  parliamentary  rules  should  be  observed. — 
But  when  we  get  well  a  going  with  the  business, 
they  could  then  adopt  the  usual  rules  of  all  legis- 
lative bodies.  He  did  not  however  object  to  the 
reference.  * 

And  by  consent,  the  rule  was  so  referred. 

Mr.  STRONG  said  that  he  wished  to  have  re- 
ferred to  the  same  committee  the  18th  rule  of  (he 
assembly  of  1843,  and  he  made  that  motion.Y— 
This  rule  requires  that  every  member  previous  to 
presenting  a  petition,  &c.,  shall  endorse  the  same 
with  his  name,  and  a  brief  statement  of  its  con- 
tents. 

It  was  so  referred. 

EXECUTIVE  PATRONAGE. 

Mr.  KIRKLAND  called  for  the  consideration 
of  his  resolution  which  the  convention  had  un- 
der consideration  at  the  time  of  the  adjournment 
on  Saturday  This  resolution  calls  on  the  Secre- 
tary of  the  State  for  a  list  of  all  the  officers  ap- 
pointed by  the  Gov.  of  this  State,  by  himself, 
or  with  the  consent  of  the  senate,  together  with 
the  total  amount  of  compensation  they  have  their 
duration  of  office,  their  duties  &c.  It  was  adopted. 

PRESERVING  DOCUMENTS. 

Mr.  RHOADES  said  that  they  had  had  the  pub- 
lic documents  laid  on  their  table  for  the  first  time 
that  morning.  These  would  be  very  valuable  and 
useful  to  the  members  during  the  progress  of  the 
convention,  to  guide  them  in  transacting  its  busi- 
ness ;  and  as  they  would  want  frequently  to  refer 
to  them,  he  hoped  the  usual  mode  of  preserving 
them  would  be  adopted. 

The  PRESIDENT  said  the  usual  covers,  &c. 
had  been   ordered  by  the  Secretary,  and  woulc 
probably  be  very  soon  placed  in  the  hands  of  the 
members. 
THE  ARRANGEMENT  OF  THE  COMMITTEES. 

Mr.  SWACKHAMER  said  that  the  report  of  the 
special  committee  of  17  had  not  been  laid  on  th 


able.  If  it  had  been,  lie  would  have  moved  to 
lave  gone  into  committee  of  the  whole  at  once, 
and  to  take  it  up  and  acted  on  it  without  delay. 
3ut  as  the  members  had  not  the  report  before 
hem,  he  did  not  know  whether  it  would  not  be 
rather  premature  to  do  so. 

The  PRESIDENT :— Does  the  gentleman  from 
king's  desire  to  make  that  motion  ? 

Mr.  SWACKHAMER:— Yes,  sir ;  I  now  move 
;hat  this  convention  do  go  into  committee  of  the 
whole.  Carried. 

The  PRESIDENT  then  called  Judge  RUG- 
nLES  to  the  Chair. 

Mr.  SWACKHAMER  called  for  the  reading  of 
the  report. 

This  having  been  done  Mr.  RICHMOND  said 
that  on  Saturday  previous  to  the  adoption  of  the 
reference  to  the  committee  of  the  whole,  the  re- 
3ort  of  the  committee  was  ordered  to  be  printed 
:br  the  purpose  of  having  it  laid  on  the  tables'  of 
members,  but  as  yet  this  had  not  been  done.  He 
had  not  thought  of  bringing  forward  any  proposi- 
tion himself  nor  should  he,  provided  all  that  he 
desired  was  embraced  in  those  of  others,  but  still 
aefore  any  action  was  had  he  was  desirous  of  hav- 
ing the  resolutions  in  a  printed  shape  so  as  to  see 
what  was  left  out  and  what  was  retained.  He 
would  therefore  move  that  the  committee  rise 
and  report  progress. 

Mr.  NICHOLAS  enquired  of  the  Secretaries  if 
the  report  had  yet  been  printed. 

The  CHAIR  said  that  the  Secretaries  informed 
him  that  the  report  went  to  the  printers  on  Sat- 
urday, immediately  after  it  was  ordered  to  be 
printed;  but  as  yet,  they  had  not  been  returned 
by  the  printer. 

The  committee  then  rose  and  reported  progress, 
and  asked  leave  to  sit  again,  which  was  granted. 

HOUR  OF  MEETING. 

Mr.  CHATFIELD  called  for  the  consideration 
o'f  the  resolution  in  relation  to  the  hour  of  meet- 
ing. 

Mr.  BROWN  moved  to  amend  so  that  the  hour 
o.f  daily  meeting  should  be  10  o'clock  instead  of 
9,  as  proposed  in  Mr.  C.'s  resolution. 

Mr.  PATTERSON  enquired  whether  the  reso- 
lution was  really  before  the  Convention  or  not  by 
a  vote,  or  whether  its  consideration  had  merely 
been  called  for. 

The  PRESIDENT  said  the  resolution  was  now 
under  consideration,  there  having  been  no  objec- 
tions raised  to  it. 

Mr.  SWACKHAMER  moved  to  amend  by  fix- 
ing  upon  the  hour  of  meeting  at  8  o'clock,  and 
the  adjournment  at  12  ;  but  at  the  suggestion  of 
others  modified  it  so  as  to  fix  the  session  from  9 
to  1  o'clock. 

Mr.  PERKINS  thought  if  the  Convention 
would  meet  at  10  and  adjourn  at  the  earliest  din- 
ner hour,  it  would  have  a  session  as  long  as  its 
present  exigencies  demand.  If  it  should  meet 
earlier  than  10  o'clock,  the  members  would  have 
no  time  to  do  any  business  in  the  morning,  and 
between  the  adjournment  and  2  o'clock,  there 
would  be  no  opportunity  in  the  heat  of  the  day 
for  the  committees  to  do  any  business.  So  in  re- 
lation to  the  hour  of  adjournment,  it  would  al- 
ways be  capable  without  a  formal  resolution,  to 
adjourn  at  12  or  any  other  hour  that  might  be  de- 
sired. Whenever  from  the  heat  of  the  weather, 


53 


or  any  other  cause  an  adjournment  was  desired, 
it  would  hardly  ever  fail  to  be  had. 

Mr.  PATTERSON  did  not  think  it  important 
at  this  particular  time  that  the  hour  of  meeting 
should  be  fixed  at  9  o'clock.  Our  committees 
were  not  yet  appointed,  and  until  they  were  there 
would  not  be  anything  requiring  the  action  of  the 
committee  of  the  whole.  But  it  seemed  to  him 
that  as  soon  as  there  was  business  before  the  Con- 
vention, it  would  be  better  for  the  health  of  the 
members,  that  the  hour  of  meeting  should  be  as 
early  as  9  o'clock,  and  continue  during  the  cool 
of  the  day,  rather  than  to  meet  at  1 1  and  continue 
until  2,  during  the  warmest  hours  of  the  day.  If 
the  session  was  to  be  but  for  three  hours,  then 
for  our  own  convenience  we  should  meet  at  9  and 
continue  until  12.  For  himself,  however,  he 
cared  not  what  the  Convention  agreed  to,  he  was 
willing  to  abide  by  it.  He  believed  he  could  stand 
it  as  well  as  others,  but  he  saw  gentlemen,  whose 
health  he  thought  would  not  permit  them  to  re- 
main. Mr.  P.  further  sustained  the  proposition 
to  meet  early  in  the  morning.  In  relation  to  the 
hour  of  adjournment,  he  was  not  quite  sure  that 
it  was  best  to  fix  any  particular  hour,  as  the  Con- 
vention could  adjourn  at  any  time  it  thought  pro- 
per. 

Mr.  W.  TAYLOR  supposed  that  for  a  few  days 
the  Convention  would  be  as  well  satisfied  with 
its  present  arrangement,  as  with  any  that  could 
be  adopted.  He  would  therefore  move  to  lay  the 
resolution  on  the  table. 

The  motion  prevailed. 

Mr.  SHEPERD  moved  that  the  Convention  do 
now  adjourn.  They  had  but  just  received  the  print- 
ed report,  and  as  none  of  the  members  seemed 
ready  or  disposed  to  proceed  at  once  to  the  con- 
sideration of  it,  he  thought  the  best  plan 
would  be  to  adjourn  now,  so  as  to  give  them  all 
time  to  consiu.;r  the  report.  He  had  not  had  5 
minutes  yet  to  examine  his  own  copy  of  it. 

Mr.  TOWNSEND  said  that  this  report,  as  it 
had  just  com*  from  the  printers,  contained  some 
most  ridiculous  typographical  errors  ;  (among 
others,  the  8th  resolution  reads — "  That  so  much 
of  the  constitution  as  relates  to  official  shoats") — 
he  therefore  moved  that  the  printers  have  leave 
to  withdraw  the  same,  and  replace  them  by  cor- 
rected copies. 

Agreed  to,  and  the  motion  to  adjourn  was  then 
put  and  lost. 

Mr.  CHATFIELD  then  moved  to  go  into  com- 
mittee of  the  whole,  for  the  purpose  of  consider- 
ering  the  report  of  the  special  committee  of  17. 

Carried,  and  Judge  RUGGLES  was  called  to 
the  Chair. 

THE  ARRANGEMENT  OF  THE  STANDING    COM- 
MITTEES. 

Mr.  JONES  moved  that  the  resolutions  of  the 
committee  of  17  be  taken  up  and  read  separately. 
The  following  are  the  15  resolutions: — 

1.  Resolved,  That  bo  much  of  the  Constitution  as  re. 
lates  to  the  apportionment,  election,  tenure  of  office  and 
compensation  of  the  legislature  be  referred  to  a  commit- 
tee to  consider  and  report  thereon. 

2.  Resolved,  That  so  much  of  the  Constitution  as  relates 
to  the  powers  and  duties  ol  the  Legislature,  except  as  to 
public  debt,  be  referred  to  a  committee  to  consider  and  re- 
port thereon. 

3.  Resolved,  That  so  much  of  the  Constitution  as  relates 
to  canals,  internal  improvements,  public  revenues  and  pro- 
perty and  public  debt,  and  the  powers  and  duties  of  the  le- 


gislature in  reference  thereto  be  referred  to  a  committee 
to  consider  and  report  thereon. 

4.  Resolved,  That  so  much  of  the  Constitution  as  relates 
to  the  elective  franchise— the  qualification  to  vote  and 
hold  office— be  relerred  to  a  committee  to  consider  andjre- 
port  thereon. 

5.  Resolved,  That  so  much  of  the  Constitution  as  relates 
to  the  election  or  appointment  of  all  officers  other  than  le- 
gislative and  judicial,  whose  duties  and  powers  are  not  lo- 
cal.and  their  powers,  duties  and  compensation,  be  relerred 
to  a  committee  to  consider  and  report  thereon. 

6.  Resolved,  That  so  much  of  the  Constitution  as  relates 
to  the  appointment  or  election  of  all  officers  whose  powers 
and  duties  are  local,  and  their  tenure  of  office,  duties  and 
compensation  be  referred  to  a  committee  to  consider  and 
report  thereon. 

7.  That  so  much  of  the  Constitution  as  relates  to  the  mi- 
litia and  military  aft'airs  be  relerred  to  a  committee  to  con- 
sider and  report  thereon. 

8.  Resolved,  That  so  much  of  the  Constitution  as  relates 
to  official  oaths  and  affirmations  and  to  oaths  and  affirma- 
tions in  equity  and  legal  proceedings,   be  relerred  to  a 
committee  to  consider  and  report  thereon. 

9.  Resolved,  That  so  much  of  the  Constitution  and  laws 
as  relates  to  the  judiciary  system  of  the  State,  be  referred 
to  a  committee  to  consider  and  report  thereon. 

10.  Resolved,  That  so  much  of  the  Constitution  and  laws 
as  relates  to  the  rights  and  privileges  of  the  citizens  of 
this  State,  be  referred  to  a  committee  to  consider  and  re- 
port thereon. 

11  Resolved,  That  so  much  of  the.  Constitution  and  laws 
as  relates  to  education,  common  schools,  and  the  appro- 
priate funds,  be  referred  to  a  committee  to  report  thereon. 

1-2.  Resolved,  That  so  much  of  the  Constitution  as  re 
lates  to  future  amendments  and  revisions  thereof,  be  re- 
ferred to  a  committee  to  consider  and  report  thereon. 

13.  Resolved,  That  a  committee  be  appointed  on  the  or- 
ganization and  powers  of  cities,  villages,  towns,  counties 
and  other  municipal  corporations;   and  especially  their 
powerofassessment,  taxation, borrowing  money,  and  con- 
tracting  debts,  to  consider  and  report  thereon. 

14.  Resolved,  That  a  committee  be  appointed  upon  the 
currency,  on  banking  business,  and  on  incorporations,  to 
consider  and  report  thereon. 

15.  Resolved,  That  a  committee  be  appointed  upon  the 
subject  of  the  tenure  of  landed  estates,  to  consider  and  re- 
port thereon. 

Mr.  HOFFMAN  suggested  that  the  question 
should  not  now  be  taken  on  the  resolutions  ;  but 
that  in  order  to  afford  every  member  an  opportu- 
nity to  reflect  on  them,  and  offer  any  amendment 
he  might  choose,  he  wished  to  have  them  all  read 
over  again  and  then  acted  on  separately. 

The  first  resolution  was  then  read  again. 

Mr.  HOFFMAN  said  that  in  order  to  afford  the 
largest  opportunity  for  amendments,  the  best  plan 
would  be  to  follow  the  practice  of  Congress,  and 
pass  them  over  informally  at  present. 

The  2d,  3d,  4th,  and  5th  resolutions  were  read. 

Mr.  BROWN  wished  to  ask  Mr.  JONES  to 
which  committee  he  designed  to  commit  that  por- 
tion of  the  constitution  which  related  to  the  ap- 
pointment or  election  of  judicial  officers? 

Mr.  JONES  said  that  it  would  be  seen  that  re- 
solution embraced  or  referred  to  all  officers  ex- 
cept legislative  or  judicial.  With  regard  to  the 
judicial  officers  as  well  as  the  judiciary,  the  com. 
mittee  designed  that  the  9th  resolution  should  em. 
brace  every  thing  connected  with  those  subjects 
the  appointment  of  the  judiciary  and  its  officers,: 
their  several  duties,  their  compensation,  fee's,  &c., 
as  well  as  the  tenure  of  their  office.  In  short, 
every  thing  appertaining  thereto.  The  gentle- 
man from  Herkimer — not  then  present — (Mr. 
LOOMIS)  had  proposed  a  resolution  for  the  ap- 
pointment of  a  separate  committee  on  this  very 
subject;  but  the  committee  of  17,  in  deliberating 
on  this  matter,  and  giving  it  mature  consideration, 
came  to  the  conclusion  that  the  wisest  course 
would  be  to  leave  every  thing  relating  to  judicial 


54 


officers  and  the  whole  system  of  the  judiciary,  t 
be  reported  on  by  one  committee. 

Mr.  BROWN  said  that  he  was  entirely  satisfie( 
with  the  disposition  of  this  important  part  of  th 
constitution,  as  indicated  by  the  Hon.  Chairmar 
of  that  committee ;  but  he  would  much  rathe 
have  nothing  whatever  left  for  implication  on  thi 
subject:  and  he  would  therefore  move  an  amend 
ment  so  as  to  designate  definitely  en  this  poin 
the  powers  and  duties  of  the  committee  wh< 
should  be  appointed  to  take  up  this  particula 
subject. 

Mr.  SWACKHAMMER  said  that  the  9th  reso 
lution  referring  to  this  matter  was  not  then  unde: 
consideration,  and  therefore  Mr.  BROWN'S  amend 
ment  would  not  be  in  order  until  that  section  was 
taken  up 

The  CHAIR  so  decided. 

LOANING  THE  CREDIT  OF  THE  STATE. 

Mr.  RICHMOND  said  that  he  saw  nothing  ir 
these  resolutions  about  loaning  the  credit  of  th< 
State  for  private  purposes. 

Mr.  JONES  said  that  matter  was  embraced  in 
the  resolutions. 

Mr.  RICHMOND  could  not  see  that  it  was.  He 
could  easily  show  that  gentleman  that  he  was  mis- 
taken. There  is  the  3d  resolution  which  relates  to 
the  public  revenues,  debt  and  canals ; — but  tha 
does  not  meet  this  question.  And  he  woulc 
tell  the  honorable  gentleman  that  this  subject  o] 
loaning  the  public  money  for  private  purposes 
forms  no  part  of  the  present  constitution.  That 
instrument  has  no  reference  to  loaning  the  State 
credit  to  individuals  or  to  corporations.  And  his 
constituents  and  a  large  majority  of  the  people  o] 
this  and  other  States,  are  of  the  same  opinion, — 
that  the  constitution  never  conferred  any  such  pow 
er  to  any  body  of  men.  He  knew  that  he  should 
be  met  with  the  argument  that  the  legislature  had 
at  various  times  granted  these  loans ;  but  that 
does  not  make  it  legal — that  the  legislature  has 
done  so,  does  not  make  it  any  part  of  the  consti- 
tution ;  and  he  was  sure  that  t'he  convention — 
that  the  committee,  would  all  agree  with  him  that 
the  legislature  had  transcended  their  powers,  in- 
asmuch as  the  constitution  had  never  conferred 
any  such  powers  upon  them.  But  as  the  exer- 
cise of  its  power  had  grown  up  to  become  a  le- 
gislative custom  for  some  few  years  past,  it  was 
highly  important  to  have  a  special  resolution  on 
this  matter,  and  a  separate  committee  formed  ;  so 
as  to  report  a  clause  in  the  new  constitution  pro- 
hibiting the  legislature  from  the  future  exercise 
of  this  power,  and  to  guard  against  such  abuses  of 
the  constitution  for  the  future ;  and  clearly  to  de- 
fine the  powers  of  the  legislature.  He  therefore 
sent  the  following  to  the  Chair : 

41  Resolved,  That  the  subject  of  loaning  the  credit  olthe 
State  to  corporations  or  individuals,  be  referred  to  a  com- 
mittee to  report  thereon." 

Mr.  BASCOM  wished  the  resolution  altered  so 
as  to  read,  "loaning  the  credit  or  monies  of  the 
State." 

Mr.  RICHMOND  accepted  this. 

Mr.  DANA  wished  that  Mr.  RICHMOND  would 
offer  his  resolution  as  an  amendment  to  the  13th 
Rule.  But  he  withdrew  his  proposition,  as  he 
was  under  a  mistake. 

Mr.  JONES  suggested  it  should  be  appended 


to  the  3d  resolution.     It  ^vould  effect  the  mov- 
er's object. 

Mr.  RICHMOND  objected  to  this;  for,  .he 
said,  if  it  was  placed  there,  it  would  be  a  virtual 
admission  that  the  Constitution  gave  that  power 
before ;  and  this  he  denied,  and  he  would  not 
have  this  inferred  or  stated  in  any  way ;  or  go 
abroad  even  by  implication  that  the  Constitution 
gave  any  such  power. 

Mr.  PATTERSON  thought  that  if  the  gentle- 
man from  Genesee,  (Mr.  RICHMOND)  looked 
again  at  the  latter  part  of  the  3d  resolution,  which 
in  alluding  to  the  finances,  and  to  debt,  speaks 
of  the  "powers  and  duties  of  the  Legislature  in 
reference  thereto";  that  he  would  find  that  this 
covered  the  ground  pointed  out  in  his  own  reso- 
lution. 

Mr.  RICHMOND  said  that  this  went  right 
back  to  the  original  point  of  the  constitution  on 
the  subject ;  and  he  had  once  for  all  denied  that 
the  constitution  contained  any  thing  conferring 
such  powers. 

Mr.  JONES  remembered  that  this  very  subject 
was  much  discussed  in  the  committee ;  and  Mr. 
LOOMIS  had  distinctly  asked  if  this  very  point 
was  fully  embraced  in  the  third  resolution,  and 
on  examination  he  was  satisfied  that  it  was.  The 
objection  of  Mr.  RICHMOND  might  be  met  by 
adding  the  word  "  and  laws,"  thus  :  "  Resolved 
that  so  much  of  the  constitution  and  laws  as  re- 
late, &c ;"  because  certainly  laws  have  been  made 
granting  loans  of  the  public  money,  &c.  And 
this  addition  would  affect  the  subject  in  all  its 
bearings. 

Mr.  RICHMOND  was  not  willing  to  have  this 
subject  represented  at  all  in  any  resolution  where 
there  is  any  reference  to  the  present  constitution ; 
he  desired  it  to  stand  simply  on  its  own  founda- 
tion ;  he  did  not  wish  to  have  it  said  or  thought 
even  by  implication,  that  this  power  formed  even 
the  slightest  part  of  the  present  constitution. — 
And  he  therefore  must  press  for  a  separate  com- 
mittee, the  16th.  He  therefore  rnovil  that  it  be 
referred  to  the  16th  standing  committee. 

Mr.  JONES  was  desirous  to  see  the  gentleman's 
object  effected;  and  was  as  equally  opposed  to 
oaning  the  State  credit ;  and  he  would  move  to 
amend  the  resolution  by  adding  "  and  laws  of 
.his  State,"  after  "  so  much  of  the  Constitution." 
Mr.  HOFFMAN  said — suppose  the  3rd  resolu- 
ion  should  be  so  amended,  as  while  it  met  the 
riews  of  the  committee  and  the  objections  of  the 
gentleman  from  Genesee  (Mr.  RICHMOND)  there 
ihould  be  added  to  it  the  words  of  his  friend  on  his 
eft,  "  and  the  subject  of  loaning  the  credit  of  the 
State,"  after  "  public  debt."  This  would  prevent 
any  implication  that  this  power  had  been  at  any 
ime  named  in  or  conferred  by  the  Constitution. 
?or  it  would  be  utterly  unpretendable,  as  it  was 
utterly  unfounded,  that  the  Constitution  had  ever 
ecognized  any  such  power.  And  the  gentleman 
rom  Genesee  was  right  in  the  strong  view  of,  and 
he  stand  he  had  taken  on  this  subject.  The 
amendment  of  the  chairman  of  the  select  com- 
nittee  of  17  he  did  not  consider  would  reach  his 
bjection  ;  it  would  not  get  rid  of  the  difficulty. 
?he  resolution  speaking  of  "  so  much  of  the  Con- 
titution  and  laws  of  the  State  relating  to  canals, 
nternal  improvements,  public  revenue  and  pro- 
erty  and  public  debt,"  would  only  say  that  it  was 


55 


unnecessary  to  have  these  loans.  But  these 
loaus  have  been  made  ;  the  credit  of  the  State  has 
thns  at  various  times  and  in  various  ways  been 
used  for  individual  purposes.  He  knew  also  that 
unfortunately  these  very  loans  had  been  made  the 
basis  of  a  circulating  medium.  But  it  was  not 
intended  by  him,  (nor  did  he  believe  it  was  by  any 
one)  that  after  these  loans  had  been  made  and  the 
credit  of  the  State  has  gone  forth,to  raise  a  question 
as  to  their  validity.  Certainly  not.  But  by  adding 
very  nearly  the  words  suggested  by  the  gentleman 
from  Genessee  (he  believed  entirely)  to  the  3d 
resolution,  "  and  the  subject  of  loaning  the  credit 
&c.,"  he  thought  that  this  third  standing  com- 
mittee would  then  have  full  charge  of  that  whole 
subject.  He  could  wish  to  have  the  resolution 
amended  still  farther,  (if  it  could  properly  be 
done,)  so  as  to  add  some  kindred  subjects  thereto ; 
such  as  the  power  of  loaning  this  credit  to  indi- 
viduals— the  power  of  making  gifts,  &c.  Because 
he  insisted  and  submitted  that  this  power  of  ma- 
king gifts  had  in  times  past  been  pursued  to  a 
very  large  extent;  and  its  results  had  been  of  the 
most  mischievous  character.  These  gifts  had 
'  been  made  in  various  ways.  Sometimes  by  pre- 
tending to  pay  a  debt ;  sometimes  under  cover  of 
pretending  to  discharge  a  debt ;  and  sometimes  by 
granting  what  was  called  "  relief;"  but  which  was 
in  truth  nothing  more  or  less  than  a  gift.  And  if 
the  gentleman  from  Genessee  had  time  to  attend 
to  it  as  this  matter  progressed,  he  hoped  he  would 
so  word  his  amendment  as  to  include  all  these 
kindred  subjects,  so  that  they  might  be  fully  con- 
sidered and  properly  disposed  of.  He  thought  it 
could  be  more  conveniently  annexed  to  the  third 
resolution  than  to  any  of  the  others,  though  he 
had  not  fully  examined  all  the  others. 

Mr.  SIMMONS  said  he  was  glad  to  see  these 
various  propositions  thus  spread  before  them  at 
this  time.  This  was  the  first  opportunity  he  had 
had  of  looking  ovar  the  resolutions,  and  he  was 
convinced  th  it  it  was  well  that  we  had  gone  into 
committee  to  perfect  them.  It  may  also  be 
that  many  of  these  subdivisions  should  be  still 
further  subdivided  with  advantage;  but  he  thought 
that  still  there  must  be  other  committees  differ- 
ently named,  for  he  liked  to  see  things  called  by 
their  right  names.  By  the  reading  of  the  2d  re- 
solution, he  saw  that  the  subject  referred  to  was 
therein  comprised,  and  that  the  committee  propo- 
sed to  be  raised  thereby  were  to  have  special 
charge  of  the  very  duty  the  new  resolution  of  Mr, 
RICHMOND,  sought  to  have  performed  by  a  16th 
committee,  viz: — the  powers  and  duties  of  the  le- 
gislature— of  course  to  grant  or  loan  money,  or 
other  purposes.  Another  resolution  merely  re- 
quired a  reference  to  a  committee  of  just  so  much 
of  the  Constitution  as  related  to  the  powers  and 
duties  of  the  legislature,  except  as  to  the  pub- 
lic debt.  Now  as  to  the  powers  and  duties  of 
that  body  generally,  he  had  supposed  that  the 
Constitution  of  this  and  of  other  States  was 
after  organizing  the  government,  a  mere  system  of 
restrictions — the  enumeration  of  restrictions  on 
power  which  the  legislature  would  otherwise 
possess  and  be  free  to  exercise,  (to  be  ascertained 
by  general  law)— were  restrictions  as  to  what  the 
legislature  shall  not  do,  just  as  the  enumeration 
of  powers  in  the  Constitution  of  the  United  States 
is  a  specific  grant  of  what  the  general  government 


may  do.  And  he  had  also  supposed  that  it  was 
utterly  impossible  for  a  committee  charged  with 
this  duty  of  considering  generally  these  powers 
and  duties  of  the  legislature,  thus-  enumerated,  to 
consider  that  they  had  performed  their  duty,  un- 
less they  had  made  full  and  thorough  enquiry  as 
to  whether  the  legislature  had  the  power  to  loan 
the  credit  or  the  monies  of  the  State,  either  to  fo- 
reign States,  to  capitalists,  individuals  or  corpo- 
rations, or  whether  they  had  no  such  power ;  and 
whether  if  any  such  power  had  been  exercised,  it 
did  not  require  thorough  revision  and  wholesome 
and  immediate  limitation.  The  gentleman  from 
Genesee  (Mr.  RICHMOND)  had  proposed  that  the 
committee  to  be  raised  by  the  2d  resolution  should 
take  charge  of  that  part  of  the  Constitution  that  re- 
lated to  the  powers  and  duties  of  the  legislature 
(except  as  to  public  debt.)  But  these  powers  in 
that  phrase  are  exceedingly  broad.  It  may  mean, 
the  committee  will  consider  it  does  mean,  all  the 
powers  and  duties  which  the  legislature  have 
been  in  the  habit  of  exercising,  or  may  exercise 
hereafter — and  what  restrictions  should  be  im- 
posed on  the  legislature  in  this  particular ;  and 
this  committee  would  feel  greatly  relieved  in  the 
performance  of  this  duty,  if  that  portion  relating 
to  the  power  of  loaning  the  money  or  credit  of 
the  State  was  to  be  referred  to  another  committee. 
He  did  not  object  even  to  a  further  subdivision  of 
the  subject  contained  in  the  second  resolution — 
that  is  if  the  abstract  power  of  the  legislature  to 
loan  money  at  all,  was  to  be  considered  separately 
— and  it  was  a  highly  important  one — to  raise  two 
committees ;  but  as  the  matter  now  stands  it 
clearly  belongs  to  the  committee  to  be  raised 
by  the  second  resolution,  which  reads  thus : — 
"Resolved,  That  so  much  of  the  Constitution  as 
relates  to  the  powers  and  duties  of  the  Legisla- 
ture, except  as  to  public  debt,  be  referred  to  a 
committee  to  consider  and  report  thereon."  But 
let  this  subject  be  taken  away  from  them,  and 
what  work  have  they  then  got  to  do  ? — take  away 
this  subject  and  all  the  considerations  collateral 
thereto,  and  what  do  you  expect  to  obtain  from 
them  ?  It  was  supposed  that  this  subject  would 
occupy  their  first  attention.  Many  gentlemen  had 
so  regarded  it.  It  has  been  generally  talked  about 
all  over  the  country,  as  one  which  the  committee 
of  the  Convention  that  regulated  the  powers  of 
the  Legislature,  would  have  to  take  early  in  hand. 
And  what  then  are  the  powers  of  this  committee, 
unless  to  take  charge  of  this  very  matter  ?  Is  it 
to  be  a  formal  committee — to  make  only  a  mere 
mechanical  report  ?  Was  this  vital  subject,  that 
has  attracted  so  much  public  attention,  to  be  taken 
away  from  it,  and  given  to  a  special  committee  ? 
But  he  only  threw  out  these  suggestions  for  the 
consideration  of  the  Convention — he  was  not  te- 
nacious of  the  course  to  be  pursued — he  had  no 
motion  to  make — but  it  was  highly  important  to 
divide  and  refer  all  the  subjects  in  a  proper  man- 
ner. 

Mr.  RICHMOND  wished  to  say  a  word  in  ex- 
planation of  his  remarks  made  when  first  up.— » 
He  stated,  and  he  repeated  it,  that  he  believed  all 
these  loans  to  have  been  unconstitutional,  but  he 
would  agree  with  the  gentleman  from  Herkimer, 
(Mr.  HOFFMAN,)  and  had  no  wish  to  disturb  them 
now — that  moment  had  gone  by,  and  many  inter- 
ests had  grown  up  under  them,  and  he  did  not 


56 


suppose  the  Convention  had  the  disposition,  if 
had  the  ability,  in  its  action  to  attempt  to  impa 
what  had  been  done.  He  had  only  spoken,  so  a 
to  call  attention  to  this  important  subject. — 
These  were  the  reasons  why  he  preferred  to  hav 
a  separate  committee  then.  By  the  resolutions 
so  much  of  the  constitution  as  related  to  the  pow 
ers  and  duties  of  the  legislature  is  referred  to  on 
committee.  Now  he  would  ask  the  chairman  o 
the  select  committee,  that  supposing  there  shoul 
be  appointed  on  the  committee  raised  by  this  re 
solution,  gentlemen  who  were  of  the  opinion  tha 
the  Constitution  never  gave  these  powers,  wheth 
er  they  could  take  up  the  question,  and  report  tc 
this  body.  In  his  judgment  they  could  not,  as 
the  resolution  said  expressly  so  much  of  thi 
f  Constitution,  &c.  A  portion  at  least  of  this  bo 
dy  believed  there  was  nothing  in  the  Constitu 
tion  giving  the  legislature  the  right  to  loan  the 
money  of  the  State.  He  was  inclined,  on  looking 
over  many  of  the  resolutions  adopted  at  the  dif 
ferent  Conventions  which  nominated  members 
and  observing  that  there  was  a  separate  resolu 
tion  on  this  subject — to  consider  that  it  would  b< 
as  proper  and  as  well  to  have  a  separate  commit- 
tee. He  had  no  disposition  however,  nor  did  he 
believe  any  man  here  had,  to  disturb  what  hac 
been  done  under  the  present  Constitution. 

Mr.  O'CONNOR  said  that  it  had  struck  him 
that  a  slight  modification  of  this  3d  resolution 
would  meet  all  the  objections  of  the  gentleman 
last  up,  and  at  the  same  time  prevent  us  from 
running  contrary  to  the  views  of  any  gentle- 
man on  this  floor.  That  is  to  say,  that  it  would 
involve  no  commitment  of  the  house  on  any  ques- 
tion as  to  the  constitutional  powers  of  the  leg- 
islature to  do  things  heretofore  done.  To  this  re- 
solution he  had  therefore  drawn  up  an  amend- 
ment which  embraced  the  idea  contained  in  l.he 
resolution  of  the  gentleman  last  up,  and  which  if 
incorporated  in  the  resolution^would  present  the 
whole  matter  in  this  way  : 

Resolved,  That  so  much  of  the  Constitution  as  relates  to 
canals,  internal  improvements,  public  revenues  and  prop. 
er*y  and  public  debt,  and  the  powers  and  duties  of  the  leg. 
islature  in  reference  thereto  [and  the  propriety  of  impo- 
sing  any  and  what  restrictions  upon  the  legislature,  ia  ma- 
king donations  of  the  public  funds  and  loans  of  the  moneys 
or  credit  of  the  State]  be  referred  to  a  committee  to  consider 
and  report  thereon.  (The  amendment  is  in  brackets, 
thus[.j.) 

Mr.  O'C.  said  that  it  struck  him  that  this  would 
meet  the  object,  unless  it  was  desired  to  have  two 
separate  committees. 

Mr.  RICHMOND  was  not  tenacious  as  to  the 
form,  if  he  only  got  the  subject  properly  up. 

Mr.  HAWLEY,  notwithstanding  he  believed 
that  there  was  nothing  exceptionable  in  any  of  the 
amendments  proposed,  held  them  to  be  entirely 
annecessary.  It  appeared  that  the  3d  resolution 
was  objected  to  on  the  ground  that  it  created  the 
implication  that  the  action  of  Legislatures  here- 
tofore had  been  constitutional.  He  however, 
held  that  in  any  view,  the  terms  of  the  resolution 
were  strictly  proper.  This  was  not  a  question  of 
constitutionality  or  unconstitutionally,  but 
whether  these  appropriations  and  donations  of 
the  public  funds  for  private  purposes,  should  be 
by  a  two-third  or  by  a  majority  vote.  If  all  that 
had  been  made  heretofore,  had  been  made  by  a 
two- third  vote,  this  question  would  not  have  aris- 


en.     The  amendment  seemed  to  him  to  be  en- 
tirely unnecessary. 

The  question  was  then  taken  on  the  amend- 
ment of  Mr.  O'C.,  and  it  was  rejected. 

Mr.  BROWN  thought  that  the  principle  of  this 
amendment  would  have  to  be   adopted  in   some 
form  or  other.     But  it  appeared  to  him  that  if  the 
3d  resolution  should  be  amended  by  the  adoption 
of  that  amendment,  leaving  the  second  resolution 
to  stand,  it  would  be  committing  to  the  commit- 
tee precisely  the  same  subject  matter.  We  should 
have  probably  conflicting  reports — one  from   one 
committee  going  one  way,  and  one  from  the  other 
going  directly  in   conflict  with  it.     He  trusted 
gentlemen  now  saw  and  felt  the  propriety  of  har- 
monizing this  subject  in  committee  of  the  whole. 
It  had  occurred  to  him  (without  assuming  any 
greater  sagacity  than  others   around  him,)  at  the 
outset,  that  no  committee  of  16  or  17  that  might 
be  selected  upon  a  business  of  this  kind,  would  be 
able,  without  the  suggestions  of  others,  to  report 
a  satisfactory  mode  for  the  distribution  of  the  bu- 
siness of  the  convention.     And  what  had   taken 
place  and  was  now  going  on,  was   a  perfect  de- 
monstration  of  the  fact.     The  committee   had, 
coubtless,  bestowed  every  attention  and  care  upon 
it — still,  when  it  came  here  and  was  submitted  to 
the  test  of  128  minds,  instead  of  17,  it  was  appa- 
rent that  the  report  was  defective.   He  hoped  that 
any  gentleman  to  whom  suggestions  might  occur, 
would  not  be  restrained  by  the  consideration  of 
lusbanding  time  from  making  them.     It  was  a 
duty  they  were  sent  here  to  perform — not  of  mere 
egislation,  changing  every  year,  but  of  forming 
an  instrument  to  prescribe  the  powers  and  duties 
of  the  agents  of  the  people  for  the  next  quarter  of 
a  century.     And  he  hopedtthen  that  full  and  free 
discussion  would  not  be  restrained  by  the  fear  of 
consuming  time,  for  in  his  belief,  it  would  be 
ime  wisely  and  usefully  applied.     Let  us  look 
at  the  second  resolution.     It  says  "that  so  much  of 
he  legislative  duties  and  powers,"  except  as  to 
mblic    debt    shall  be  referred  to  a  committee. 
Vow  what  are  we  to  do.    All  the  power  of  the 
egislature — not  over  the  revenue,  but  the  property 
>f  the  people,  except  so  far  as  it  may  be  exercised 
or  the  mere  purpose  of  creating  debt,  is  to  be  com- 
aitted  to  a  committee.     And  the  next  resolution 
eferred  all  the  powers  of  the  legislature  in  regard 
o  internal  improvements,   public  revenue  and 
>roperty,  to  another  committee.     Now  he  sub- 
mitted that  these  subjects  must  be  referred  to  one 
ommittee.     Their  separation  was   entirely  un- 
ecessary.     They  are  from  their  nature  one  and 
ndivisible,and  he  trusted  they  would  be  committed 
o  one  and  the  same  committee.    Itwas  very  appa- 
ent  that  doubts  on  the  subject  were  existing  in  the 
linds  of  gentlemen.     One  (Mr.  SIMMONS)  sup- 
oses  that  the  sovereign  power  resided  in  the  leg- 
slature,  except  where  expressly  forbidden — by  a 
beral  interpretation  of  the  instrument— and  that 
had  complete   and  absolute  power  over  the  pro- 
erty  of  the  people.  He  expressed  no  opinion  now 
n  this  subject — but  it  was  sufficient  for  him  to  say 
lat  if  that  power  did  reside  in  the  legislature, 
len  he  apprehended  the  time  had  come  when  we 
ught  to  consider  it.     If  it  is  in  the  power  of  the 
egislature  to  take  into  their  hands  the  disposition 
f  our  property  and  that  of  the  State — to  exercise 
le  most  unlimited  control  over  it — to  give  it  to 


57 


corporations — to  a  foreign  power  even,  as  had 
been  said — then  it  was  time  we  knew  it — time 
that  a  committee  considered  it — and  time  that  the 
people  of  the  State  should  know  it.  Another 
class  suppose  that  all  those  powers,  not  expressly 
granted  to  the  legislature,they  should  be  restrained 
from  exercising.  He  would  express  no  opinion 
on  this  subject,  because  it  would  not  be  in  order. 
He  suggested  then  that  the  powers  of  the  legisla- 
ture on  all  subjects  should  be  submitted  to  one 
committee.  Separate  them,  and  there  would 
most  undoubtedly  be  conflicting  reports.  He 
v  out  these  suggestions  for  the  consideration 
of  gentlemen,  because  the  subject  must  be  exa- 
mined. We  must  know  and  desire  to  know  be- 
fore we  take  any  steps,  what  are  to  be  the  results, 
and  what  the  power  and  authority  these  commit- 
tees are  to  exercise. 

Mr.  BASCOM  said  if  he  read  aright  the  propo- 
sitions in  the  2nd  and  3rd  resolutions,  there  were 
references  of  separate  and  distinct  subjects  propo- 
sed to  both  committees.  By  the  second  resolu- 
tions all  the  powers  and  duties  of  the  legislature 
except  in  relation  to  public  debt  were  referred  to 
one  committee.  In  the  next  resolution  there  was 
a  classification  of  four  distinct  subjects  embraced 
in  the  general  designation — in  the  first,  to  wit,  in- 
ternal improvements,  canals,  the  public  revenue 
and  property.  And  it  was  proposed  by  the  gen- 
tleman from  Genesee  to  embrace  another  subject. 
Perhaps  an  amendment  to  the  second  resolution — 
by  striking  out  the  exception  as  to  public  debts, 
and  substituting  the  words  excepting  the  sub- 
jects not  provided  for  in  the  preceeding  reso- 
lutions would  better  attain  the  end.  He  would 
like  it  better,  if  in  all  of  these  resolutions 
the  word  constitution  should  be  stricken  out, 
and  the  words  business  of  the  Convention,  in- 
serted, so  that  we  should  not  be  driven  back  at 
any  time  to  trie  consideration  of  the  constitution  ; 
and  so  that  :t  woald  be  considered  a  part  of  the 
business  of  the  Convention  to  take  up,  consider 
and  discuss,  and  appoint  a  committee  of  reference 
on  all  subjects  which  might  come  legitimately 
within  the  duties  of  the  Convention,  in  the  organ- 
ization of  a  new  constitution.  He  would  suggest 
that  the  report  of  the  committee  of  17  be  amen- 
ded as  he  had  indicated. 

Mr.  RICHMOND  suggested  that  Mr.  O'CoNOR 
should  engraft  his  amendment  on  the  2d  resolu- 
tion, instead  of  the  3d. 

Mr.  O'CONOR  had  not  the  slightest  objection 
to  placing  the  matter  in  the  2d  resolution,  pro- 
vided those  gentlemen  who  had  given  their  atten- 
tion most  especially  to  the  subjects  embraced  in 
the  3d  resolution,  agreed  to  it.  There  were  gentle- 
men, who,  in  the  course  of  our  deliberations,  had 
given  a  foreshadowing  of  their  views  on  the  sub- 
jects embraced  in  the  3d  resolution,  and  had  plain- 
ly evinced,  how  very  extensively  they  had  reflect- 
ed on  these  matters.  It  struck  him  that  the  a- 
mendment  which  he  had  presented  did  properly 
belong  to  the  3d  resolution,  but  if  the  honorable 
gentleman  from  Herkimer,  (Mr.  HOFFMAN)  who 
had  given  us  his  views  once  or  twice,  in  reference 
to  this  very  subject,  is  of  opinion  that  this  a- 
mendment  more  properly  belong  to  the  2d  than 
to  the  3d,  he  was  quite  willing  to  present  it  as 
such.  Otherwise,  he  should  be  disposed-to  add  it 
as  an  amendment  to  the  3d  resolution. 


Mr.  RUSSELL  suggested  that  the  resolutions- 
having  been  but  this  moment  laid  on  the  tables 
of  members,  it  was  almost  impossible  for  any  gen- 
tleman who  had  not  made  previous  preparation, 
to  suggest  in  its  precise  words,  the  idea  he  may 
himself  have  to  propose  for  the  amendment  of  the 
report.  And  with  a  view  to  enable  gentlemen  to 
confer  a  little  more  on  the  subject,  aud  to  allow 
the  member  from  Herkimer  (Mr.  LOOMIS)  on  the 
committee,  to  oe  here  when  the  subject  was  con- 
sidered, he  would  move  that  the  committee  rise 
and  report  progress.  Mr.  R.  waived  his  motion 
at  the  request  of 

Mr.  RICHMOND,  who  then  explained  that  the 
reason  why  he  wished  to  change  the  amendment 
from  the  2d  to  the  3d  resolution  was  this  :  The  3d 
spoke  of  the  power  of  the  legislature  to  create 
debt.  He  had  understood  that  various  proposi- 
tions were  to  come  in  here  in  regard  to  State  debt. 
But  on  one  thing  all  had  agreed — that  there  must 
be  power  in  the  legislature  to  raise  money  in  some 
way  or  other.  There  were  gentlemen  who  de- 
sired to  restrict  the  legislature,  so  that  power 
shall  not  be  given  it,  in  any  shape,  to  loan  the 
credit  of  the  State  to  corporations  or  individuals. 
But  no  body  wished  under  any  circumstances  that 
the  legislature  or  the  people  should  be  so  restrict- 
ed that  they  cannot  borrow  money  at  all.  All 
agree  on  that— the  only  question  was  as  to  the 
way  it  should  be  raised  and  appropriated.  Hence 
he  wished  to  see  these  two  propositions  separated. 

Mr.  HOFFMAN  said  that  it  would  undoubted- 
ly be  the  desire  of  the  Convention,  of  which  we 
were  a  committee,  to  group  together  the  subjects- 
sent  to  the  standing  committees,  in  such  a  way 
that  those  which  were  very  nearly  allied,  pro- 
ducing the  same  results,  the  same  mischiefs, 
and  originating  in  nearly  the  same  causes, 
should  go  to  the  same  committee.  So  far  as  he 
had  had  any  experience  in  this,  or  in  the  govern- 
ment of  the  Union,  the  power  of  making  gifts,  or 
of  loaning  the  credit,  or  of  contracting  debts,  ori- 
ginated very  much  in  the  same  causes,  and  ended 
in  the  same  mischiefs,  and  should  be  considered 
together,  and  by  very  nearly  the  same  rules.  If, 
therefore,  the  power  was  inserted  in  eith- 
er the  one  or  the  other  of  these  resolution,  it 
was  entirely  proper  that  it  should  belong  to  the 
3d  resolution,  where  the  debt  power  was  retain- 
ed, and  not  to  the  2d,  where  it  is  expressly  ex- 
cluded. His  colleague,  (Mr  LOOMIS,)  who  was 
familiar  with  this  matter,  and  a  member  of  this 
committee,  was  absent  through  domestic  circum- 
stances, and  would  not  be  here  until  2  o'clock, 
P.M.  He  had  devoted  his  attention  to  the 
matter,  and  he  (Mr.  H.)  earnestly1  desired  that 
his  colleague  should  have  an  opportunity  of 
presenting  his  views  and  reflections  on  the 
subjects  arising  out  of  these  resolutions. 

He  (Mr.  H.)  did  not  know  why  the  committee 
had  made  this  separation  between  the  1st  and  2d 
resolutions,  but  he  begged  leave  to  call  attention 
to  a  few  considerations  connected  with  the  sub- 
ject. The  Executive  and  Judicial  branches  of 
this  government  simply  were  the  administrators 
of  the  law — the  law  was  their  strict  rule  and 
guide.  It  was  therefore  unnecessary,  very  spe- 
cifically to  enumerate  the  duties  they  were  to 
perform  ;  the  Legislature  would  perfect  that  task. 
But  there  is  no  law  over  the  Legislature  but  the 


58 


Constitution  itself,  and  limitations  that  were  not 
set  forth  in  clear  and  definite  terms,  and  in  a  strong 
and  direct  manner,  would  scarcely  be  observed  by 
the  Legislature.  It  would,  therefore,  seem  very 
desirable,  if  we  refer  to  the  experience  of  our  own 
and  other  States,  that  we  should  come  to  the  con- 
clusion that  it  was  very  necessary  specifically  to 
enumerate  the  powers  of  the  legislature.  Two 
modes  of  proceeding  in  this  novel  work  of  Consti- 
tutional legislation  have  been  adopted.  In  gen- 
eral he  believed  it  was  true  of  the  constitutions 
of  every  State  in  the  Union,  that  either  from  a 
want  of  time  to  consider  the  subjects  or  from 
some  other  cause,  the  Conventions  have  given  the 
legislative  power  in  the  mass — in  general  terms — 
and  then  sought  to  restrain  it  within  the  bounds 
of  freedom,  and  to  secure  the  rights  of  individuals, 
by  express  limitations.  This  is  true  of  our  own 
constitution,  and  of  perhaps  every  one  in  the  union 
except  that  of  the  Union  itself.  What  constitut- 
ed legislative  power,  and  what  legislation  may 
properly  do,  was  itself  a  subject  in  some  de- 
gree undetermined.  In  the  history  of  this,  and 
other  states  and  countries,  where  a  constitutional 
government,  or  in  more  current  phrase  and  per- 
haps more  proper  one — a  responsible  government 
existed,  legislation'has  attempted  to  perform,  had 
performed  very  largely — not  legislative  duties  but 
duties  approximating  so  nearly  to  the  mere  exe- 
cutive, as  to  deserve  a  distinct  and  different  desig- 
nation from  that  of  administrative:  Such  are 
acts  of  attainder— bills  of  relief  on  past  matters, 
where  the  laws  do  not  reach — various  disposi- 
tions of  property — and  relief  to  individuals  on  va- 
rious subjects.  All  tl 
fit 

upon 

found  that  they,  were  not  legislative  powers,  but 
administrative  duties,  always  to  be  performed, 
whether  by  principals  or  subordinates,  under  the 
scourge  of  the  law,  by  a  fixed  and  iron  rule,  which 
no  passion,  temptation  or  interest  could  change. 
The  other  mode  of  proceeding  instead  of  adopting 
a  general,  sweeping  grant  of  power,  and  then 
seeking  in  limitations  to  restrict  it,  so  as  to  make 
safe  the  rights  of  labor,  property  and  person, 
would  be  to  adopt  the  course  of  specifying  di- 
rectly,  and  as  far  as  possible  affirmatively,  what 
the  powers  of  the  legislature  should  be — and  af- 
ter enumerating  them  in  the  best  way  the  uncer- 
tainty of  language  would  permit  us  to  do,  then  to 
say  that  all  powers  not  granted  to  the  legislature 
are  the  residuary,  reserved  powers  of  the  people, 
not  to  be  exercised  unless  they  make  an  express 
grant  of  them.  If  the  Convention  had  resolved 
itself  into  a  'committee  of  the  whole  at  an 
early  stage  of  the  business,  he  should  have  felt 
compelled  to  have  brought  this  question  before  it 
and  to  have  asked  its  judgment:— Will  you  so  ap- 
portion your  labors  as  that  the  committee  to  whom 
it  is  referred  shall  grant  legislative  power  in  the 
mass,  and  endeavor  then  to  draw  from  it  as  much 
as  may  be  necessary  for  the  security  of  individual 
life,  property  and  character ;  or  will  you  adopt 
the  other  side  of  the  alternative,  and  so  constitute 
your  committees,  as  that  some  one  of  them  shall 
be  charged  with  the  duty  of  attempting  to  specify 
the  powers  to  be  granted  to  the  legislature,  re- 
serving all  others  to  the  people,  until  they  shall 
be  especially  granted.  Under  such  a  course,  and 


these  had  been  treated  as  if 
and  proper  matters  of  legislation.  Perhaps 
>n  further  looking  into  this  matter,  it  would  be. 


where  there  was  a  reasonable  possibility  of  suc- 
cess, he  should  have  felt  compelled  to  inflict  upon 
the  Convention  various  arguments  to  bring  them 
over  to  the  other  course— to  haVe  answered  the 
common  allegation  of  the  impossibility  of  prepar- 
ing the  details,  in  an  amendment,  of  these  grants 
of  power.  After  the  Convention  had  agreed  to 
give  this  matter  to  a  committee,  he  had  supposed 
the  better  and  only  course  would  be  to  make  their 
programme  as  full  and  definite  as  possible.  As 
it  now  stands,  if  the  third  resolution  be  amen- 
ded as  proposed,  the  question  now  presented  will 
be  disposed  of,  and  it  would  yet  be  possible  for  the 
committee  charged  with  this  exclusive  question 
of  Legislative  power,  to  enumerate  the  powers  to 
be  granted,  and  if  they  should  fail  in  that  duty, 
he  trusted,  with  or  without  an  intimation  from 
the  Convention,  they  would  take  the  measures 
necessary  to  secure  in  any  future  Constitution 
that  may  be  produced,  a  fair  and  full  enumera- 
tion of  these  powers.  He  submitted  that  it  was 
clearly  in  their  power  to  report  a  provision  that 
prior  to  any  subsequent  Convention,  a  commis- 
sion charged  with  this  duty,  should  be  got  up 
by  the  government,  limited  and  confined  express- 
ly to  the  duty  of  arraigning  and  specifying  the 
subjects  of  Legislative  power  to  be  granted— to 
compel  its  submission  to  the  Executive  and  Leg- 
islative branches  of  the  government,  and  to  the 
public — and  compel  the  organized  portion  of  the 
government  to  suggest  their  approval  or  their 
objections  to  any  part  of  it,  and  show  its  imper- 
fections or  its  defects.  If  the  committee  and  the 
Convention  should  leave  this  second  committee  as 
it  was,  he  should  feel  it  his  duty  if  no  one  else 
did,  to  bring  the  subject  before  the  Convention  by 
a  resolution  to  instruct  the  committee  to  enquire 
into  the  expediency  of  an  express  enumeration  of 
the  legislative  powers.  And  if  that  did  not  suc- 
ceed, to  enquire  into  the  expediency  of  making  it 
necessary  on  the  part  of  the  government  before 
another  Convention  was  held,  to  institute  such  a 
commission,  as  he  had  indicated.  Whether  con- 
siderations like  these  had  moved  the  select  com' 
mittee,  in  their  views  and  apportionment  of  the 
matter,  he  knew  not.  He  had  never  had  an  op- 
portunity of  looking  at  a  programme,  not  even 
that  of  his  colleague,  nor  of  hearing  his  reasons, 
private  or  public,  for  any  part  of  this  apportion- 
ment. It  might  be  that  he  had  a  committee,  in 
which  this  high  duty  of  enumerating  the  legisla- 
tive powers  would  be  performed.  It  might  be 
that  these  considerations  lead  to  the  singling  out 
of  a  committee  for  the  purpose.  If  this  3d  com- 
mittee should  be  left  with  the  powers  it  now  has, 
there  were  other  subjects  which  seemed  appro- 
priate to  be  referred  to  it.  He  did  not  at  pre~ 
sent  feel  warranted  in  detaining  the  committee 
longer  in  hearing  observations  which  he  felt  it  his 
duty  to  make.  He  hoped  the  committee  might 
rise,  in  order  that  this  programme  might  be  more 
fully  examined — for  he  confessed  that  he  had  not 
had  an  opportunity  to  read  all  of  the  propositions. 
Mr.  TILDEN  said  that  he  would  suggest  an 
amendment  which  he  believed  would  meet  the 
objections  raised  by  gentlemen  to  the  form  and  lan- 
guage of  these  resolutions.  And  before  he  intro- 
duced it,  he  would  state  that  he  inferred  from  what 
had  been  said  by  one  gentleman,  that  the  commit- 
tee proposed  by  the  second  resolution  was  in- 


59 


tended  to  consider  the  legislative  power  general- 
ly, the  restrictions  to  be  imposed  on  it,  and  the 
duties  to  be  enjoined  on  it  to  perform — a  class  of 
subjects  so  multifarious  and  important,  as  to  re- 
quire and  occupy  a  distinct  committee.  The 
amendment  he  suggested  was  designed  to  obviate 
objections  entertained,  not  by  himself  but  by  oth- 
er gentlemen,  and  which  seemed  likely  to  arise 
successively,  to  each  resolution.  Gentlemen  said, 
and  truly,  that  in  regard  to  some  of  the  subjects 
which  it  was  proposed  to  raise  committees  to 
consider,  there  was  no  provision  in  the  constitu- 
tion, and  that  by  these  resolutions  nothing  was 
referred  to  those  committees  but  parts  of  the  con- 
stitution which  do  not  exist.  He  thought  that  the 
committees  would  feel  justified  in  examining  and 
reporting  on  the  general  subjects,  notwithstanding 
the  form  of  the  reference ;  but,  as  apprehension 
seemed  to  be  felt  that  matters  not  embraced  in  the 
constitution  might  be  excluded,  he  presented 
the  amendment.  It  was  this :  Prefix  to  the 
resolutions  of  the  committee  of  17 — "Resolved, 
that  standing  committees  be  appointed  to  consider 
and  report  on  the  following  subjects — and  that  the 
several  parts  of  the  constitution  which  relate  to 
these  subjects  respectively,  be  referred -to  the 
said  committees."  And  then  strike  out  from 
the  beginning  of  each  resolution  the  words  "  Re- 
solved, that  so  much  of  the  constitution  as  relates 
to,"  and  from  the  end  of  each  of  the  15  resolutions 
the  words  "be  referred  to  a  committee  to  consider 
and  report  thereon,"  He  moved  also  to  number 
the  subjects  from  1  to  15  ;  so  as  to  have  but  one 
resolution  for  15  standing  committees.  He  said 
that  if  gentlemen  desired  to  attain  verbal  accura- 
cy, he  thought  this  would  accomplish  that  object. 
Mr.  STETSON  remarked  that  he  was  in  duty 
bound  to  state  that  the  gentleman  from  Herkimer 
(Mr,  LOOMIS)  not  in  his  seat,  but  who  had  been 
called  home  very  suddenly,  expressed  to  him  (Mr. 
S.)  before  leaving,  his  hope  that  the  general  iden- 
tity of  the  first  3  or  4  resolutions  should  be  pre- 
served, if  it  was  practicable,  and  agreeable  to  the 
views  of  the  committee.  As  there  appeared  to 
be  some  slight  confusion  for  the  moment  as  to 
what  were  the  duties  of  the  legislature,  and  as  to 
the  legislative  power  generally,  he  would  call  at- 
tention to  the  2d  resolution  ;  and  this  they  could 
see  included  all  the  power  of  the  legislature  in  full 
sovereignty,  except  as  related  to  public  debt ; — 
and  all  so  far  as  this  power  is  to  be  derived  from 
the  constitution  ;  and  (not  to  say  anything  beyond 
it)  a  very  formidable  power  indeed  this  is.  And 
the  3d  resolution  w  ent  beyond  it — provided  an- 
other formidable  power  not  derived  from  the 
constitution.  It  goes  beyond  the  exception — it 
subdivides  the  legislative  power,  it  is  true,  but  it 
goes  beyond  the  exception.  The  2d  resolution 
exempts  the  public  debt ;  but  it  occurred  to  the 
committee  that  the  third,  which  was  intended  to 
provide  for  the  exception,  should  include  the  sub- 
ject of  internal  improvement,  the  public  revenue 
and  property,  and  all  those  powers  of  the  legisla- 
ture connected  with  the  public  debt.  So  in  the 
13th  resolution,  there  are  still  farther  details  rela- 
tive to  legislative  power,  with  a  still  wider  ex- 
ception. And  it  takes  hold  of  and  embraces  the 
organization  and  powers  of  cities,  villages,  towns, 
counties  and  other  municipal  corporations,  and 
especially  the  power  of  assessment,  borrowing  mo- 


ney, taxation,  and  the  contraction  of  debts.  And 
in»  abatement — 

Mr.  RICHMOND :— Will  the  gentleman  from 
Clinton  inform  me,  taking  these  resolutions  as 
they  are,  to  which  one  of  them  he  would  consider 
my  proposition  as  the  most  appropriate  amend- 
ment ? 

Mr.  STETSON  said  that  that  question  had  not 
been  fully  settled  in  the  committee  of  17.  Bt  he 
thought  it  would  belong  to  the  3d  subdivision. — 
The  objection  to  it  had  been  well  stated  by  the  gen- 
tleman himself — it  was  an  unconstitutional  pow- 
er—not given  to  the  Legislature  at  all ;  but  the 
proper  way  to  remedy  this,  was  to  add  to  the  3d 
resolution,  as  proposed  by  the  gentleman  from 
New-York,  the  words — "  and  Legislative  power:" 
This  would  blend  inquiry  into  the  constitutional 
power,  and  also  into  that  power,  which,  though 
exercised,  has  not  been  derived  from  the  consti- 
tution— and  which  has  gone  beyond  the  constitu- 
tion. There  was  really  no  other  legitimate  power 
than  that  derived  from  the  constitution.  [He  re- 
peated the  first  part  of  the  resolution,  added  the 
words  suggested,  and  then  stated  that  he  thought 
that  would  reach  the  objection.]  The  gentleman 
from  Genesee,  in  his  amendment,  speaks  of 
"  loaning  the  public  credit."  He  had  supposed 
that  the  public  credit  was  much  the  same  thing 
as  public  debt.  If  a  man  in  business  puts  his 
name  to  a  note — a  piece  of  paper,  promising  to 
pay — he  owes  that  amount  of  money,  and  that 
certainly  in  one  sense  must  be  looked  upon  as  a 
debt.  And  he  certainly  thought  public  debt 
must  include  the  loaning  of  the  credit  of  the 
State.  But  it  is  easy  to  change  or  to  increase  the 
powers  of  the  committee  so  as  to  include  all  the 
necessary  subjects  generally;  because  if  we  adopt 
a  special  enumeration,  we  may  leave  out  much 
that  we  are  desirous  to  include.  That  was  the 
principal  difficulty  as  it  struck  him. 

Mr.  RICHMOND  did  not  consider  this  subject 
to  be  of  the  same  nature  as  the  ordinary  debt  of 
the  State,  as  Mr.  STETSON  described  it.  Nor  did 
his  constituents  so  understand  it.  And  he  wished 
to  have  a  special  committee  for  it.  What  he  par- 
ticularly objected  to,  was  the  loaning  of  the  credit 
of  the  State  to  advance  private  improvements,  and- 
the  interest  only  of  certain  individuals.  There 
must  be  some  way  to  provide  for  the  public  debt, 
it  is  true,  when  required  for  public  purposes — ant 
some  way  to  create  a  public  debt — but  there  was 
a  very  wide  distinction  between  the  legitimate 
kind  of  State  debts,  and  the  loaning  public  mo- 
ney to  corporations,  for  private  purposes,  as  he 
before  stated;  and  what  he  wanted,  was  a  report 
on  this  system  of  loaning  the  State  credit;  and  he 
wanted  the  Constutution  so  amended  that  the  le- 
gislature would  be  utterly  restricted  from  ever 
creating  such  debts.  The  power  of  the  legislature 
to  create  a  debt  for  public  improvements  is  a  to- 
tally different  matter;  we  may  support  the  one; 
but  our  votes  will  most  certainly  be  given  against 
the  other.  He  wished  not  to  reflect  on  the  com- 
mittee of  17  at  all;  or  to  allude  to  any  inflence  it 
may  be  supposed  to  have;  he  believed  they  have 
done  as  well  as  they  could  under  the  circumstan- 
ces; and  if  we  can't  get  exactly  what  we  want,  we 
must  get  the  next  best  thing  to  it.  And  it  is  the 
wish  of  all  to  get  through  this  report  as  amicably 
and  speedily  as  possible.  But  the  committee  must 


60 


see  the  great  difference  between  these  two  sub- 
jects; and  he  hoped  no  attempt  would  be  made 
then  to  blend  them  together.  In  many  counties, 
the  people  in  their  primary  assemblies  had  voted 
on  both  these  subjects — and  against  the  one  he 
spoke  of — and  as  it  was  of  great  importance,  he 
hoped  a  separate  committee  would  be  granted  to 
report  upon  it. 

Mr.  RHOADES  said,  that  notwithstanding  the 
gentleman  from  Herkimer,  and  the  gentleman 
from  Clinton  were  desirous  that  these  resolutions 
should  stand  substantially  as  they  were  reported, 
yet  the  gentleman  from  Orange  had  very  clearly 
shown  that  the  resolutions  were  by  no  means 
consistent  with  each  other ;  and  doubtless  the 
various  committees  would  make  reports  and  reso- 
lutions thereon  greatly  conflicting  with  each  oth- 
er. The  two  subjects  alluded  to  were  not  at  all 
similar  and  ought  not  to  be  considered  by  any  one 
committee.  Whilst  he  was  listening  to  the  gen- 
tleman from  Genesee  he  had  drawn  up  2  resolu- 
itons  which  he  would  offer  as  substitutes  for  two 
of  the  special  committee's  resolutions  on  the  same 
subject.  It  included  constitutional  and  legisla- 
tive powers  relating  to  internal  improvements, 
public  debt  and  credit  and  the  loan  of  public  cred- 
it for  local  and  private  purposes,  and  the  other  in- 
cluded all  other  powers  and  duties  of  the  legisla- 
ture. He  believed  as  these  embraced  every  thing 
on  that  point,  they  would  satisfy  gentleman, — 
They  read  thus : 

Resolved,  That  so  much  of  the  Constitution  and  of  leg- 
islative power  as  relates  to  the  canals,  internal  improve- 
ments, public  revenues  and  property,  public  debt  and  pub- 
lic credit,  as  well  as  the  appropriation  of  public  moneys  or 
property,  by  way  of  gift  or  otherwise,  or  for  local  and  pri- 
vate purposes,  and  the  authority  and  duties  of  the  legisla- 
ture in  reference  thereto,  be  referred  to  a  committee  to  con- 
aider  and  report  thereon. 

Resolved,  That  so  much  of  the  Constitution  as  relates  to 
the  powers  and  duties  of  the  legislature  in  regard  to  sub- 
jects not  embraced  in  the  foregoing  resolution,  be  referred 
o  a  committee  to  report  thereon. 

Mr.  O'CONOR  said  that  he  believed  we  should 
have  a  large  number  of  amendments  to  the  reso- 
lutions and  in  relation  to  classifying  the  parts  of 
the  Constitution  and  .other  matters  that  would 
come  before  them ;  and  there  was  one  proposition 
before  the  committee  which  would  have  a  most 
confusing  effect  on  the  Convention  and  on  the 
other  amendments,  if  it  should  be  adopted ;  and 
would  at  least  require  them  to  be  altered.  The 
proposition  of  his  colleague  (Mr.  TILDEN)  was 
the  one  he  alluded  to — which  required  a  varia- 
tion in  their  general  structure,  in  order  to  avoid 
confusion  ;  to  wit,  in  the  making  the  entire  set  of 
resolves  to  be  but  one  resolution,  and  numbering 
the  committees,  at  the  same  time  it  got  rid  of  that 
continual  reference  to  the  Constitution  which  oc- 
casioned scruples  in  the  minds  of  many  of  the 
members  as  to  the  extent  of  the  powers  which  the 
original  resolutions  would  confer  on  the  commit- 
tees. Many  gentlemen  seemed  to  think  that  these 
references  to  the  Constitution  tied  down  the  com- 
mittees to  such  parts  as  were  actually  to  be  found 
in  the  present  Constitution,  To  get  rid  of  this 
difficulty  and  to  put  the  original  resolutions  in  a 
proper  shape  to  receive  the  amendments  suggest- 
ed, he  proposed  that  the  question  should  be  taken 
on' the  resolution  of  his  colleague  first  to  effect 
hat  general  alteration  ;  and  afterwards  they  could 
ct  on  the  specific  amendments.  It  appeared  that 


both  his  colleague  and  himself  however  had  failed 
to  make  the  proposition  understood  by  the  Con- 
vention ;  and  in  fact  it  was  of  such  a  character 
that  it  could  not  be  fully  understood  by  any  ver- 
bal description.  He  therefore  wished  it  printed, 
and  withdrew  the  amendment  he  had  before  su°-- 
gested. 

Mr.  NICHOLAS  asked  that  the  original  reso- 
lution should  be  read  again,  that  was  offered  by 
the  gentleman  from  Genesee,  (Mr.  RICHMOND.) 
He  asked  if  the  question  was  on  the  amendment 
of  the  gentleman  from  New  York  (Mr.  TILDEN.) 
He  had  asked  for  the  reading  of  the  original  res- 
olution for  the  information  of  several  of  the 
members,  who  had  not  nnderstood  how  the  ques- 
tion stood ;  and  with  a  view  that  if  the  various 
amendments  should  be  rejected,  a  distinct  com- 
mittee should  be  raised  for  the  reference  of  this- 
particular  subject.  All  these  amendments  are 
made  to  resolutions  that  refer  to  the  subject  of 
the  appropriation  of  the  public  money  for  public 
purposes.  This  loaning  money  on  credit  of  the 
state  for  "private  purposes,"  is  a  distinct  subject, 
so  far  as  the  action  of  this  Convention  is  concern- 
ed. He  considered  it  an  original  question,  as 
taken  in  connexion  with  the  old  subject. — 
He  agreed  fully  with  the  gentleman  from  Gen- 
esee, (Mr.  RICHMOND)  that  it  was  very  ques~ 
tionable  whether  any  such  power  could  be 
possessed  or  exercised  by  the  Legislature. — 
Many — aye,  a  large  majority  of  their  constituents 
entertained  the  opinion  that  it  was  positively  un- 
constitutional to  loan  the  credit  of  the  State  to 
private  corporations,  and  that  it  could  be  done 
under  no  circumstances  but  by  a  two-third  vote  ; 
and  therefore  it  was  a  most  proper  matter  for  an 
exclusive  committee  on  it,  and  he  hoped  one 
would  be  raised  for  the  purpose.  This  subject 
had  heretofore  excited  a  great  deal  of  interest 
throughout  the  country — it  had  been  agitated  very 
extensively  and  very  energetically — and  it  there- 
fore did  occur  to  him  to  be  a  very  appropriate 
subject  for  a  distinct  committee,  more  especially 
as-  the  other  resolutions  referred  solely  to  the 
expenditure  of  public  monies  for  public  purposes. 
But  he  had  another  reason  for  desiring  this  course 
to  be  pursued.  The  committee  of  the  whole 
should  keep  in  mind  that  the  fifteen  committees 
proposed  to  be  raised  were  to  be  standing  com- 
mittees ;  they  were  to  act  and  to  be  in  existence 
all  the  session  of  this  Convention,  and  they  ought 
not  to  be  burthened  with  any  thing  that  par- 
took of  the  character  of  special  instructions. — 
And  the  course  he  desired  to  see  pursued  would 
prevent  the  necessity  of  continually  offering  and 
voting  upon  special  instructions  to  be  sent  to  these 
committees.  They  would  have  abundance  to  do, 
by  considering  fully  all  subjects  appertaining  to 
the  particular  sphere  of  their  duty.  And  as  soon 
as  they  shall  respectively  report,  if  that  report 
should  be  found  defective,  and  gentlemen  found 
omitted  any  subject  that  had  been  greatly  discuss- 
ed over  the  State,  in  which  all  feel  a  very  deep  in- 
terest, or  that  any  particular  district  of  the  State 
feels  a  particular  interest  in,  then  it  will  compe- 
tent for  those  gentlemen  to  move,  and  the  Con- 
vention to  instruct  that  committee  on  those  par- 
ticular subjects.  Therefore,  he  suggested  that 
when  any  new  subject  (such  as  that  of  the  gen- 
tleman from  Genesee)  should  be  brought  forward?. 


61 


(not  included  in  the  consideration  of  those  15 
committees)  it  should  be  sent  immediately  to 
a  new  committee  to  be  raised  especially 
for  its  consideration.  If  the  Convention  do 
this,  then  our  labors  will  soon  be  brought 
to  a  close ;  but  if  we  go  on  as  we  have  be- 
gun, then  we  shall  be  involved  in  an  endless 
discussion,  and  our  labors  will  be  interminable. — 
Let  it  be  well  remembered,  then,  that  these  are 
to  be  standing  committees,  who  are  to  sit  and  act 
during  the  entire  term  of  the  committee,  and  any 
gentleman  who  wishes  to  have  any  subject  prop- 
erly connected  with  any  of  them  brought  under 
its  consideration,  has  only  to  name  it,  and  the 
Convention  will  so  order  it.  But  do  not  amplify 
the  duties  of  any  of  these  15  as  named  in  the  pro- 
gramme. Let  there  be  no  new  committee  unless 
in  the  case  of  a  new  and  entirely  distinct  subject 
presenting  itself;  and  then  always  raise  a  new 
one.  He  would  offer  no  amendment  now,  but  he 
hoped  the  amendment  of  the  gentleman  from  New 
York  (Mr.  TILDEN)  would  not  be  adopted  ;  he 
hoped  all  the  amendments  would  be  voted  down; 
he  was  not  prepared  to  vote  on  the  original  ques- 
tion just  now,  but  still  he  wished  it  to  come  up 
fairly  before  the  committee  to  be  examined  and 
discussed,  without  being  encumbered  with  un- 
necessary amendments. 

•  Mr.  W.  TAYLOR  thought  that  the  committee 

was  not  properly  prepared  at  this  time  to  vote  on 
his  amendment ;  and  as  it  was  near  the  time  of 
adjournment,  he  moved  that  the  committee  rise, 
report  progress  and  ask  leave  to  sit  again. 

The  motion  prevailed,  and  the  committee  ac- 
cordingly rose,  reported  progress,  and  had  leave 
to  sit  again. 

Mj^HOFFMAN  moved  to  print  all  the  amend- 
ments* Carried. 

Mr  O'CONOR  explained  the  character  of 
Mr.  TILDEN'S  amendment. 

Leave  -rf  absence  for  4  days  granted  to  Mr. 
POWERS,  and  the  Convention  adjourned. 


TUESDAY,  (8th  day,)  JUNE  10. 

Prayer  by  the  Rev.  Mr.  BENEDICT. 

RULES  AND  ORDER  OF  BUSINESS. 

Mr.  WARD,  from  the  committee  on  rules,  re- 
ported in  favor  of  the  two  rules  referred  to  that 
committee  yesterday,  relative  to  the  order  of  bu- 
siness (which  were  offered  by  Messrs.  TAYLOR 
and  STRONG).  When  the  committee  originally 
made  their  report  on  the  rules,  it  was  their  de- 
sire to  leave  the  Convention  entirely  untrammel- 
ed  with  regard  to  the  order  of  business  ;  they  left 
it  to  the  Convention  to  select  and  adopt  that  or- 
der which  would  best  conduce  to  the  dispatch  of 
the  business  of  the  Convention,  and  that  on  this 
a  majority  should  decide.  But  since  then  they 
had  deliberated  on  the  rules  now  reported  for  the 
order  of  business,  and  as  they  saw  nothing  to  ob- 
ject in  them,  they  reported  accordingly  in  favor 
of  them.  They  report  the  following  order  of  bu- 
siness, after  reading  the  journal : 

1.  Petitions  and  communications  from  the  Governor,  the 
State  officers,  and  from  all  other  persons  to  whom  inqui- 
ries may  he  addressed  by  order  of  the  Convention  ;  2.  Re- 
ports oi  committees  ;  3.  Motions,  resolutions  and  notices: 
4.  Unfinished  business ;  5.  Special  orders  :  6.  General 
orders. 


Mr.  CROOKER  moved  to  amend  by  inserting 
the  word  "  resolution"  after  "  petitions." 

This  was  accepted  by  Mr.  WARD. 

Mr.  STRONG  said  he  would  send  up  a  resolu- 
tion which  would  meet  the  viewrs  of  gentlemen. 
His  only  object  in  thus  amending,  was  always  to 
get  at  the  names  of  all  those  who  offered  resolu- 
tions. He  would  therefore  offer  an  additional 
rule,  thus : 

"  Resolved,  That  no  resolution  or  pap«r  should  be  re- 
ceivpd  by  the  President,  unless  accompanied  with  the 
name  of  the  mover."  Accepted. 

Mr.  KENNEDY  moved  to  vary  the  phraseolo- 
gy of  the  rule  for  the  order  of  business.  As  it 
now  read  it,  seemed  to  say  "petitions,"  as  well 
as  "  communications  from  the  Governor."  He 
moved  to  insert  "  1st,  petitions ;  2d,  communica- 
tions from  the  Governor,"  &c.  &c. 

The  report,  with  all  the  amendments,  was 
adopted. 

The  PRESIDENT  then  called  over  the  order 
of  business;  on  reaching  the  3d  section. 

STENOGRAPHERS. 

Mr.  CROOKER  moved  to  call  up  his  resolution 
to  appoint  two  stenographers  to  report  the  Con- 
vention debates  officially.  He  observed  that  Mr. 
PATTERSON  had  remarked  that  it  required  a  vote 
of  the  House  to  call  it  up  ;  but  he  thought  the 
mover  might  call  it  up  at  any  time,  if  it  had  been 
laid  on  the  table  with  his  consent. 

Mr.  CHATFIELD  opposed  the  resolution.  It 
was  entirely  unnecessary  for  the  committee  to 
appoint  two  stenographers;  and  it  would  be  very 
unfair  to  select  any  2  from  the  5  or  6  very  able 
gentlemen  now  present  reporting  these  debates. 
Thus  far,  most  certainly,  the  debates  of  this  Con- 
vention have  been  most  fully  and  fairly  reported 
by  those  gentlemen.  He  had  the  highest  confi- 
dence in  the  ability  of  the  gentlemen  reporting 
for  the  city  papers  (Atlas,  Argus  and  Journal,) 
now  present.  And  he  believed  some  of  them  had 
announced  that  they  would  publish  all  these  de- 
bates in  a  book  at  the  close  of  the  Convention. — 
There  was  no  necessity  to  pay  money  out  of  the 
Treasury  for  this  purpose;  it  could  not  possibly 
induce  these  gentlemen  now  engaged  to  make  any 
better  reports  than  they  now  publish;  and  it  would 
be  equally  impossible  to  obtain  two  other  report- 
ers from  any  other  place  that  could  surpass  them. 
For  this  reason  he  opposed  the  proposed  expen- 
diture of  money.  There  was  no  reason  for  it;  and 
nothing  in  the  circumstances  by  which  we  are 
surrounded,  to  warrant  such  outlay. 

Mr.  BROWN  wished  to  know  the  object  of  the. 
entleman  who  offered  the  resolution.  Was  it 
esigned  to  pay  any  of  the  public  money  to  these 
stenographers?  Or  was  it  intended  to  purchase 
this  book  of  reports  from  them,  out  and  out,  and 
make  it  the  property  of  the  State?  He  desired 
information.  He  was  willing  to  go  as  far  as  any 
member,  to  take  measures  to  ensure  the  publica- 
tion of  the  fullest  and  most  accurate  reports  of  this 
Convention.  But  up  to  the  present  time,  every 
thing  connected  with  this  subject,  has  gone  on  as 
admirably  and  perfectly  as  the  most  sanguine 
could  desire;  the  reports  given  daily  in  the  lead- 
ing journals  here,  had  been  most  excellent,  and 
given  entire  satisfaction  to  the  members.  How 
could  we  ensure  anything  better?  He  wished  the 


mover  to  explain.  He  might  eventually  vote  for 
the  resolution;  but  he  wished  first  to  know  its  ob- 
ject; he  must  first  see  the  propriety  and  ne- 
cessity of  it.  It  would  not  be  right  in  any  event, 
to  select  any  2,  to  the  prejudice  of  the  other  3  or 
4. 

Mr.  STRONG  asked  if  the  resolution  was  pro- 
perly before  the  house;  if  it  was  not,  then  we 
could  not  debate  it. 

Mr.  RHOADES  made  the  same  enquiry 

Mr.  CHATFIELD  moved  to  lay  the  subject  on 
the  table. 

The  PRESIDENT  said  the  question  was  on 
taking  the  resolution  from  the  table,  and  it  was 
not  debateable. 

Mr.  CROOKER  said,  that  having  been  called 
upon  for  his  reasons,  he  would  state  that  he  had 
no  object  in  view  on  this  matter,  except  to  have 
the  proceedings  of  this  Convention  published  in 
a  good  and  proper  manner ;  under  the  immediate 
supervision  and  sanction  of  the  Convention  itself. 
He  wished  to  have  the  reporters  of  the  debates 
and  proceedings  made  officers  of  the  Convention, 
and  responsible  to  it  for  their  reports.  As  to  the 
matter  of  the  expense,  he  had  limited  the  number 
to  two,  in  order  not  to  startle  gentlemen  with  the 
expense  of  paying  five  or  six.  But  he  was  not  at 
all  tenacious  on  this  point.  He  had  not  the  slight- 
est desire  to  make  any  invidious  distinction  be- 
tween the  very  able  gentlemen  now  engaged  in 
this  most  arduous  and  honorable  duty  of  reporting 
these  debates  ;  he  had  no  objection  to  have  them 
all  engaged  officially  as  reporters  to  this  Conven- 
tion ;  and  all  paid  liberally  for  their  professional 
services  to  the  same ;  what  he  desired  was  to  in- 
sure some  additional  responsibility  in  the  publi- 
cation of  the  important  debates  of  this  Conven- 
tion to  revise  the  Constitution  of  the  great  State 
of  New- York.  These  debates  would  be  deemed 
of  the  highest  importance  by  the  people  all  over 
the  State.  And  as  to  the  expense  of  the  same, 
he  was  certain  that  none  of  their  constituents 
would  ever  complain  of  that.  What  he  intended 
to  do  with  the  book  after  it  was  published  at  the 
close  of  the  session  was  this ;  every  member  of 
the  Convention  should  receive  a  copy  as  a  right ; 
and  he  had  no  fear  to  go  home  and  meet  his  con- 
stituents and  show  them  the  work  he  had  voted 
for  himself,  or  any  of  the  other  books  he  might 
receive. 

He  (Mr.  C.)  further  proposed  to  put  one 
copy  of  it  in  the  office  of  every  county  clerk 
in  the  State ;  this  was  highly  necessary  to  be 
done ;  and  he  might  go  even  so  far,  (and  he  tho't 
he  should,)  as  to  put  a  copy  in  the  office  of  every 
town  clerk  throughput  the  State.  And  he  was 
quite  sure  that  the  people  of  this  State  would  ful- 
ly sanction  such  a  proceeding  For  if  the  debates 
are  such  as  he  trusted  they  would  be,  worthy  of 
the  members  themselves,  and  of  the  great  objects 
which  called  them  together,  then  the  outlay  would 
be  one  of  the  most  judicious,  one  of  the  most 
profitable,  that  could  or  would  be  made  during  the 
entire  session  of  the  Convention.  We  print  the 
Journal,  which  is  worth  little  more  than  waste 
paper  in  comparison  with  the  importance  of  these 
debates.  What  do  we  know,  what  do  the  peo- 
ple of  the  State  know  of  the  Journal  of  the  Con- 
vention of  1821  ? — why,  it  is  not  only  not  read  at 
all  by  the  people  at  large,  but  it  is  scarcely  heard 


of  by  them,  while  the  debates  of  that  Conven- 
tion have  long  been  and  still  remain,  monuments 
of  the  wisdom  and  learning  displayed  there  ;  and 
they  are  to  be  found  and  are  read  in  every  section 
of  the  State  ;  they  served  as  a  guide  and  a  land- 
mark in  the  construction  of  the  Constitution,  and 
they  have  been  of  invaluable  service  for  the  last 
25  years  to  all  classes  of  our  fellow  citizens. — 
Our  Journal,  which,  by  law,  we  are  compelled  to 
keep,  is  merely  a  dry,  meagre,  record  of  the  bu- 
siness transacted  here  from  day  to  day,  while 
the  opinions,  the  views,  the  knowledge,1  and  expe- 
rience of  members,  elicited  from  day  to  day,  and 
hour  to  hour,  in  the  debates — and  which  are  so  vi- 
tally important  and  material  to  us  and  to  our  con- 
stituents now ;  and  will  be  to  all  our  descendants 
for  perhaps  a  century  to  come — and  which  should 
be  spread  freely  and  abundantly  all  over  the 
State — we  hesitate  to  print  at  all.  What  an  an- 
omaly is  this  ?  Can  anything  be  more  absurd  ?  If 
we  form  such  a  Constitution  as  he  hoped  and  ful- 
ly expect  that  we  shall ;  one  that  shall  last  a  cen- 
tury and  be  the  best  that  can  possibly  be  devised 
— then  these  debates  will  form  one  of  the  most 
interesting  and  valuable  books  that  has  ever  been 
published  in  this  State.  The  debates  at  this  pre- 
sent time,  it  is  true,  are  of  a  somewhat  desultory 
character,  and  upon  incidental  questions ;  they 
perhaps  are  not  so  very  material  as  to  require 
that  they  should  all  be  fully  embodied  in  this 
work  ;  but  by  and  by  we  shall  come  to  the  care- 
ful consideration  of  those  vital  questions  connect- 
ed with  the  heart  and  soul  of  this  Constitution  ; 
and  then  it  would  be  a  matter  of  the  last  import- 
ance to  have  these  debates  spread  out  before  us 
in  the  fullest  and  most  accurate  manner.  He 
had  no  feeling,  whatever,  as  to  which  of  the  very 
talented  and  experienced  gentlemen  (re^-ters) 
now  present,  were  chosen  for  this  important  and 
highly  arduous  and  responsible  duty;  but  he 
would  commence  the  selection  by  choosing,  first, 
the  very  best  reporter  that  could  be  found  for  the 
duties,  come  from  where  he  may  ;  then  choose 
the  next  best  to  him ;  and  so  on,  if  the  Conven- 
tion thought  proper,  until  they  had  chosen  the 
whole  of  those  now  present,  who  had  been  so  ful- 
ly and  ably  reporting  these  debates  up  to  the  pre- 
sent time. 

The  question  was  then  taken  on  considering 
the  resolution  and  it  was  agreed  to,  56  to  34. 

Mr.  WARD  would  feel  equally  gratified  with 
the  gentleman  from  Cattaraugus  (Mr.  CROOKER,) 
to  pass  this  resolution,  if  he  could  satisfy  his  mind 
that  this  Convention  possessed  the  power  to  make 
an  appropriation  for  the  appointment  of  these  ste- 
nographers. But  it  did  seem  to  him  that  they 
possessed  no  such  power.  They  had  it  was  true 
the  power  to  direct  the  publication  of  the  journal 
of  their  proceedings;  and  that  power  they  "had 
exercised;  and  that  seemed  to  be  all  that  was  re- 
quired of  them.  With  respect  to  the  present  re- 
porters, those  now  within  the  bar  of  this  Conven- 
tion, he  could  say  for  one,  from  the  long  experi- 
ence which  he  had  had  in  such  matters,  that  there 
was  not  in  America — he  believed  that  there  was 
not  in  the  whole  world — a  corps  of  reporters  so 
well  qualified — so  able  by  talent  and  experience, 
and  in  every  way  so  well  calculated  to  do  justice 
to  the  views  and  speeches  of  gentlemen  upon 
this  floor,  as  those  at  present  engaged  in  that  most 


63 


difficult  but  dignified  and  honorable  task  ;  and  as 
had  been  stated  by  the  Hon.  gentleman  from  Ot- 
sego  (Mr.  CHATFIELD,)  two  at  least  of  the  papers 
employing  these  highly  talented  gentlemen,  have 
already  announced  that  it  is  intended  by  them  to 
publish  a  book,  containing  the  whole  of  these  de- 
bates, carefully  revised,  at  the  end  of  the  session. 
And  if,  then,  after  the  close  of  our  labors  here, 
we  find  that  we  possess  the  power  or  authority  to 
vote  the  money  for  the  same,  we  can  select  from 
either  of  ihe  books  which  may  be  published  by 
these  repwters,  such  a  number  of  copies  as  will  be 
sufficient  to  supply  each  member  with  one.  For 
gentlemen  must  know  from  the  opportunity  they 
had  had  to  judge,  that  these  reports  would  be  given 
most  accurately.  They  could  go  farther  and  pur- 
chase enough  copies  to  send  one  to  th£  office  of 
every  town  and  county  clerk,  if  it  Should  be 
deemed  expedient  to  do  so.  But  they  could  not, 
by  merely  appointing  any  of  these  gentftmen  to 
the  position  of  Reporter  to  the  Convention,  and 
awarding  him  a  liberal  sum  for  his  services — at 
the  same  time  award  him  a  larger  amount  of  ex- 
perience, or  talent  in  his  peculiarly  difficult  pro- 
fession, than  he  now  possesses.  Neither  would 
the  payment  of  any  sum  induce  either  of  these 
reporters  to  make  any  better  or  more  faithful  re- 
ports than  they  now  do.  Their  personal  pride 
was  fully  enlisted  in  this  matter  now — their  pro- 
fessional reputation  was  involved  in  the  results  of 
their  labors ;  and  knowing  them  as  well  as  he 
had  the  honor  and  pleasure  to  know  them,  he 
could  assert  without  fear  of  contradiction  that 
these  feelings  would  be  a  far  greater  inducement 
to  their  attaining  excellence  in  their  line,  than 
all  emoluments,  or  all  the  intended  or  alleged, 
nominal  honors  which  the  Convention  could  pos- 
sible bestow  upon  them. 

Mr.  SIMMONS  said  that  he  certainly  could 
not  vote  for  ihis  resolution.  Heretofore,  it  had 
been  considerr-d  an  improper  stretch  of  power  for 
the  members  to  vote  themselves  many  of  the 
books  which  they  had  so  frequently  done ;  for  it 
had  in  times  past  been  the  practice  for  every 
member  of  the  Legislature  to  take  a  copy 
of  every  thing  that  was  published  by  the  Le- 
gislature;  and  sometimes  2  or  3  copies. 

There  was  the  case  of  the  Geological  Reports 
published  at  the  expense  of  the  people  of  the 
State.  He  had  voted  for  that  measure,  for  those 
works  to  be  printed  ;  he  had  done  so  at  the. time 
without  proper  thought  or  reflection — it  passed ; 
yet  he  was  not  able  to  get  a  single  copy  of  that 
work  for  himself.  And  at  any* rate,  it  was  very 
questionable  if  we  had  the  right  so  to  print  and 
appropriate  that  work ;  and  it  could  not  be  made 
a  precedent  for  future  action.  The  good  sense  of 
the  committee  must  tell  them  this  is  so.  They 
had  much  better  confine  themselves  entirely  to 
the  stationery.  It  would  be  highly  impolitic  al- 
so, for  them  to  print  the  debates;  for  if  at  this 
late  day,  in  1S46,  they  should  begin  to  print  all 
the  speeches  that  might  be  made  upon  that  floor  j 
he  was  very  much  afraid,  indeed,  that  they  would 
not  only  get  a  great  deal  too  many  of  them, 
[laughter]  but  a  very  large  majority  of  them  that 
would  be  positively  not  worth  the  paper  on 
which  they  were  printed.  [Increased  laughter.] 
This  subject  of  reporting  and  publishing  the  de- 
bates is  a  matter  of  fair  and  honorable  competi- 


tion among  the  three  leading  journals  here  ; 
most  competent  and  skillful  gentlemen  were  al- 
ready engaged  in  the  task ;  they  had  performed 
their  severe  labors  most  admirably  so  far,  and 
there  was  no  fear  but  that  they  would  do  so  to 
the  end;  and  there  was  not  the  slightest  danger, 
but  that  their  constituents  would  be  fully  ac- 
quainted with  their  labors  through  the  medium 
of  these  papers,  and  properly  appreciate  and  re- 
ward them  for  the  same.  He  must  vote  against 
the  resolution. 

Mr.  CROCKER  said  that  if  gentlemen  laid  so 
much  stress  upon  the  point  that  we  were  bound 
by  the  express  letter  of  the  law — the  act  of  1844 
calling  this  Convention — he  believed  that  we  had 
transcended  that  power  already.  We  certainly 
have  alread  violated  that  law.  There  is,  assured- 
ly, no  provision  therein  to  allow  us  to  vote  our- 
selves any  stationery  ;  or  if  this  was  contended 
for,  any  how  there  was  none  for  appointing  a 
Sergeant-at-Arms.  Our  constituents,  he  did 
not  believe,  however,  would  object  very  rrfuch  to 
those  matters ;  much  less  would  they  object  to 
having  the  light  of  these  debates  shed  on  them. — 
On  the  other  hand,  he  insisted  that  the  publica- 
tion of  these  debates  did  virtually  and  literally- 
come  within  the  meaning  and  letter  of  the  act. — 
The  law  required  them  to  keep  a  journal  of  their 
proceedings ;  and  these  details  are  as  legitimately 
apart  of  the  proceedings  of  this  body  as  any  mo- 
tion, resolution,  report,  or  any  part  of  the  pro- 
ceedings which  is  daily  entered  on  that  jourual ; 
and  how  much  more  important  are  they  to  a  pro- 
per understanding  of  the  proceedings  which  are 
now  entered  there  ?  Shall,  then,  the  proposition 
offered  here  be  spread  upon  that  journal, 
with  the  result,  perhaps,  that  such  a  proposition 
was  carried — and  not  the  opposing  remarks  made 
by  gentlemen  with  a  view  to  influence  votes  to 
cause  its  defeat  ?  or  those  remarks  which  might 
be  made  by  gentlemen  to  ensure  its  success  ? — 
How  absurd  would  such  a  course  be  on  the  face 
of  it.  The  remarks  were  engrafted  irremovably 
in  the  proceedings,  and  as  such  should  be  printed 
officially.  The  law  itself  certainly  requires  that 
these  speeches  should  all  be  published.  And 
therefore  we  ought  to  have  the  reports  of  these 
debates  made  by  officers  of  the  Convention — un- 
der our  supervision,  subject  to  our  order,  and 
published  by  our  sanction.  Then  we  should  only 
be  doing  our  duty  to  our  constituents.  As  to  the 
geological  reports  which  the  gentleman  from  Es- 
sex (Mr.  SIMMONS)  had  alluded  to,  all  who  were 
then  present  must  remember  that  the  members  of 
the  Legislature  voted  themselves,  not  one  copy, 
but  eighteen  or  twenty  copies  !  and  what  is  more, 
they  received  them,  at  least  nearly  all  must  have 
had  them,  and  if  the  gentleman  from  Essex  was 
so  unfortunate  as  not  to  get  a  copy  of  that  work, 
he  (Mr.  C.)  could  assure  him  that  he  got  18  or  20 
copies;  (laughter)  and  what  is  more,  he  considered 
it  to  have  been  a  valuable  and  legitimate  appro- 
priation. He  had  yet.  to  hear  that  this  was  not  a 
proper  expenditure.  The  books  were  distributed 
among  his  constituents,  as  was  doubtless  the 
case  with  the  copies  obtained  by  other  members 
of  the  Legislature — they  imparted  to  each  neigh- 
borhood a  vast  amount  of  invaluable  information — 
and  he  had  yet  to  learn  that  this  appropriation 
was  in  any  way  to  be  considered  as  a  waste  of 


64 


money.  The  object  of  the  survey  was  to  have 
the  results  distributed  over  the  country — not  lock- 
ed up  in  a  closet — to  spread  all  this  information 
abroad — and  the  appropriation  effected  it.  If  the 
gentleman  from  Essex,  or  his  constituents,  got  no 
copy  of  this  work,  he  was  sorry  for  it — he  cer- 
tainly ought  to  have  had  some.  (Laughter.)  As 
to  the  powers  of  the  Convention  upon  these 
subjects,  he  must  say  that  he  did  not  like  all 
these  stringent  notions  of  false  economy — the 
rigid  constructions  which  gentlemen  chose  to 
put  upon  these  points.  We  are  here  as  the 
people  of  the  State  in  their  sovereign  capacity  ; 
we  are  here,  only  because  they  cannot  all  come 
themselves  in  person  ;  but  still  the  whole  peo- 
ple are  here,  acting  here,  thro'  us,  their  represen- 
tatives. And  thus  we  possess  all  the  power 
which  the  whole  body  of  the  people  themselves 
possess— and  we  are  at  full  liberty  to  act  so  as  in 
our  judgment,  will  best  promote  the  interests  of 
the  whole  people.  It  was  admitted  we  had  th£ 

Sower  to  tear  the  Constitution  to  pieces,  and  to 
>rm,  if  we  thought  proper,  an  entirely  new  one, 
(for  the  people  to  decide  upon  hereafter)  and  yet, 
strange  to  say,  gentlemen  undertook  to  say  that 
we  had  not  the  power  to  vote  a  small  sum,  in  or- 
der to  inform  the  people  fully  and  fairly  what 
had  been  said  and  done  during  our  session  here ; 
or  to  show  them  the  grounds  assumed  and  main- 
tained why  certain  propositions  were  adopted, 
and  certain  others  were  rejected.  This  would 
not  bear  the  test  of  common  sense  reasoning. — 
Gentlemen  had  said  that  they  could  furnish  them- 
selves at  the  close  of  the  session  with  a  copy  of 
the  book  of  debates  that  one  of  the  papers  had 
proposed  to  publish  ;  but  this  would  not  furnish 
the  whole  people  of  the  State  with  a  knowledge 
of  how  their  business  had  been  transacted  here; 
which  information  ought  to  be  published  at  their 
expense,  so  as  to  assist  in  forming  a  judgment  on 
the  new  Constitution  when  they  should  come  to 
vote  on  it  hereafter.  By  this  means  they  could  at- 
tain a  proper  understanding  of  all  the  amend- 
ments we  should  adopt  and  not  otherwise,  and 
at  the  close  of  the  session  they  would  thank  us 
for  doing  so.  These  are  the  reasons  he  had  for 
offering  and  pressing  the  resolution,  which  gen- 
tlemen called  on  him  to  give.  It  was  not  his 
wish  to  take  up  the  time  of  this  Convention  ;  he 
offered  the  resolution  because  he  deemed  it  a  high- 
ly important  one  to  his  constituents ;  and  he 
thought  that  the  good  sense  of  the  members  (ena- 
bling them  to  See  its  importance)  would  induce 
them  to  pass  it  without  debate.  And  with  this 
explanation,  he  should  leave  it  in  the  hands  of  the 
Convention,  and  should  acquiesce  in  whatever 
dispositionit  might  please  them  to  make  of  it. 

Mr.  LOOMIS  said  that  he  was  not  able  to  find 
sufficient  reason  to  sustain  this  resolution ;  and 
he  thought  that  the  Convention  ought  not.  We 
we  were  already  surrounded  with  an  ample  array 
of  very  competent  Reporters ;  and  we  most  cer- 
tainly ought  not  to  complain — we  had  not  the 
slightest  reason  to  complain — of  their  accuracy  ; 
they  had  most  faithfully  discharged  th%  duties  as- 
signed them.  He  could  bear  full  testimony  to 
the  accuracy  and  faithfulness  of  their  reports  so 
far  as  he  had  examined  them.  And  these  gentle- 
men are  employed  by  those  who  sent  us  here — 
by  the  people  themselves.  They  are  the  agents 


of  the  people  who  sent  us — and  they  are  sent  here 
delegated  by  that  people  fb  watch  us — to  inform 
them  of  all  that  we  do  and  say.  They  are  sent 
by^the  people  in  their  primary  capacity — they  are 
paid  by  that  people  in  their  original  capacity — 
they  are  not  our  agents — we  do  not  pay  or  employ 
them — and  we  ought  not.  He  wished  to  allow 
the  fullest  and  freest  kind  of  competition  in  this 
matter ;  and  in  that  way  the  interests  of  the  pub- 
lic would  be  best  served,  and  the  duties  assigned 
them  be  best  discharged.  Nothing  that  was  done 
there  could  be  kept  from  the  peoj$e.  Every 
breath  of  wind  that  passes  this  Capitol,  carries  on 
its  wings  every  remark  that  is  made  here,  to  the 
remotest  corners  of  the  country.  We  are  fully 
and  amply  supplied  with  intelligent,  industrious, 
and  experienced  gentlemen  to  accomplish  all 
these  objects.  And  if  we  were  to  adopt  the  reso- 
lution, we  should  set  a  most  unwise  and  mischie- 
•vous  ppcedent  to  the  legislature,which  they  might 
follow  Hereafter  with  their  debates,  and  which 
he  would  be  very  sorry  to  see  done.  The  perfect 
freedom  of  speech  and  debate  which  is  indulged 
in  on  this  floor  by  members  of  the  Convention, 
should  induce  us  to  allow  the  same  freedom  to 
those  who  are  sent  here  by  the  people  to  give 
them  to  the  world.  He  wished  in  this  respect  to 
see  the  fullest  and  fairest  competition  without  any 
any  official  preference  or  patronage ;  this  was  al- 
lowed under  the  existing  arrangement,  and  he 
deemed  this  sufficient  reason  to  oppose  any  change 
therein. 

Mr.  BROWN  said  that  he  must  regard  this  pro- 
position as  somewhat  novel  and  extraordinary. — 
He  had  no  recollection  of  any  legislative  body 
isver  having  employed  stenographers  to  report  its 
debates.  It  certainly  was  not  the  practice  of  the 
British  Parliament,  of  the  Senate,  or  House  of 
Representatives  in  Congress,  nor  of  the  Legisla- 
ture of  this  State  to  do  so ;  neither  was  it  the 
course  of  the  Convention  of  1821 ;  they  did  not 
employ  any  reporters  to  report  their  debates. — 
And  the  reasons  therefor  were,  in  his  judgment 
very  obvious.  For  if  any  thing  could  take  away 
from  the  impartiality  of  these  reports — if  any  thing 
could  induce  the  reporters  to  deviate  from  strict 
accuracy  in  their  reports  (which  he  did  not  deem 
possible)  to  make  them  favorable  to  the 
members — to  flatter  gentlemen  in  their  speeches, 
it  would  be  the  official  sanction  and  preference 
given  to  them  by  their  selection  to  this  body. — 
Such  an  appointment  would  create  a  desire  to 
have  these  reports  of  speeches  all  made  as  fa- 
vorable and  flattering  as  they  could  be  made. 
And  this  was  one  great  evil  which  he  decidedly 
wished  to  avoid.  He  desired  that  each  gentle- 
man should  stand  here  on  his  own  responsibility; 
and  to  answer  for  all  that  he  should  say, — good, 
bad,  or  indifferent.  And  if  any  gentleman  should 
undertake  to  make  a  speech,  or  to  utter  opinions 
here,  that  might  be  deemed  a  waste  of  the  time 
of  the  Convention — or  that  might  be  deemed  irrel- 
evant to  the  subject  under  discussion — or  that 
might  be  deemed  idle  and  useless — then  he  de- 
sired that  such  gentlemen  should  take  the  respon- 
sibility of  so  doing;  and  not  that  he  should  be  at 
liberty  to  go  to  the  reporter  (who  perhaps  might 
be  indebted  to  him — to  his  vote — for  his  place) 
and  say  to  him  that  he  must  suppress  so  and  so, 
and  insert  so  and  so;  or  gloss  over,  or  highly  color 


65 


certain  other  parts.  He  desired  that  the  debates 
of  this  Convention  should  be  reported  and  pub- 
lished precisely  as  they  occur,  if  that  be  possible 
—  and  that  is  the  reason,  and  a  sufficient  one,  why 
we  should  reject  this  resolution.  The  reporters 
should  remain  as  they  are—  independent  and  un- 
influenced —  with  no  indycement  to  present  fa 
vorablc  or  unfavorable  reports  of  the  proceedings 
here  —  but  to  give  them  as  they  occur.  And  let 
every  gentleman  stand,  as  he  does  now,  on  his 
own  responsibility.  And  by  and  by  when  we 
come  to  engraft  these  propositions  on  the  Consti- 
tution, our  constituents  will  see  and  know  the 
reasons  and  motives  assigned  for  our  proceedings. 
He  admitted  that  it  was  proper  the  people  should 
have  spread  before  them  the  reasons,  motives, 
and  objects  we  have  in  view,  and  the  arguments 
adduced  to  sustain  them  —  that  induced  us  to  en- 
graft these  amendments  on  the  Constitution.  But 
the  resolution  of  the  gentleman  from  Cattaraugus 
(Mr.  CROCKER)  will  not  answer  that  end.  For  if 
these  reporters  were  officiallyemployed,  the  result 
of  their  labors  would  not  be  published  till  the 
close  of  the  session  —  till  the  Convention  rose  ;  — 
whereas  it  was  of  great  importance  that  these 
reasons  should  be  spread  before  them,  fully,  from 
day  to  day,  that  the  people  may  see  them  as  they 
hourly  transpire;  judge  of  their  value,  and  ap- 
prove or  object  to  them  as  they  shall  see  proper. 
But  this  proposition  of  the  gentleman  from  Chau- 
tauque  does  not  meet  this  object;  for  under  his 
resolution  these  facts  would  not  be  spread  before 
the  people  (in  time  for  them  to  read  and  digest 
them)  before  they  would  be  called  upon  to  vote 
upon  these  very  amendments  to  the  Constitution. 
But  if  anything  of  this  kind  was  to  be  done  —  if 
we  were  to  send  these  debates  abroad  under  our 
sanction,  he  would  rather  prefer  then  to  pursue 
the  course  indicated  by  the  gentleman  from  West- 
chester,  (Mr  WARD)  —  that  is,  to  wait  and  see 
what  these  reported  debates  are  —  whether  they 
are  good  or  bad.  If  good,  then  let  us  purchase 
them  and  send  them  all  over  the  State  ;  and  if 
bad,  reject  them.  But  if  we  thus  create  these 
stenographers  —  appoint  them  to  this  body  —  and 
have  their  reports  printed  at  the  public  expense, 
we  hold  out  direct  inducements  for  them  to  make 
it  a  great  book,  to  swell  it  unnecessarily  to  a 
ponderous  size  —  very  costly—  and  we  shall  have 
eck  upon  it.  As  to  the  expense  of 


no 
suc 


proper  ch 
h  a    roce 


proceeding,  or  the  power  of  the  commit- 
tee to  authorize  it,  he  had  no  doubt  that  we  pos- 
sessed this  power,  and  if  the  results  of  its  exercise 
should  be  valuable,  he  was  willing  to  exert  all 
necessary  power  to  effect  a  good  object.  As  to 
the  expense  of  such  a  work,  or  other  expenses, 
about  which  we  had  heard  so  much,  that  was  in 
his  estimation  a  very  small  item,  not  worthy  a 
thought—  and  he  trusted  that  gentleman  would 
not  so  insult  the  understandings  or  feelings,  or 
good  sense  of  their  constituents  by  such  ill-timed 


They  were  ordered,  and  resulted  as  follows— ayes 
5,  noes  103 : 

AYES— Messrs.  Crocker,  Gebhard,  Hawley,  Rhoad<«, 
Townsend. 

NOES— Messrs.  Allen,  Angel,  Archer,  Ayrault.  F.  F. 
Backus,  H.  Backus,  Baker,  Bascom,  Bouck,  Bowdish, 
Brayton,  Brown,  Bruce,  Bull,  Burr,  Cambrelensr,  D.  D. 


Campbell,  R.  Campbell,  jr  ,  Candeje,  Chajtfield,  Clark,  Co- 

ly,  Cook,  Cornell, 
Dubois,   Flanders,  Forsyth,    Gardner,   Green,    Harrison, 


nely,  Cook,  Cornell,  Cuddeback.  Dana,  Danforth   Dorlon, 


Hart,  Hofl'man,  Hotchkiss,  Hunt,  Hunter,  A.  Huntinptton, 
E.  Huntington,  Hutchinson,  Hyde,  Jones,  Kemble,  Kenne- 
dy, Kernan,  Kirkland,  Loomis,  Mann,  McNitt,  Marvin, 
Maxwell,  Miller,  Nicholas,  Nicoll,  O'Conor,  Parish,  Pat- 
terson, Penniman,  Perkins,  Porter,  Richmond,  Hiker,  Rug- 
gles,  Russell,  St.  John,  Salisbury,  Sanford,  Sears,  Shaver 
Shaw,  Sheldon,  Shepard,  Simmons,  E.  Spencer,  W.  H. 
Spencer,  Stanton,  Stephens,  Stetson,  Stow,  Strong,  Swack- 
hammer,  Taft,  Taggart,  Tallmadge,  J.  J.  Taylor,  W.  Ta 


agga 
thill, 


ay- 
rd, 


lor,  Tilden,   Tuthill,  Vache,  Van  Schoonhoven,    Wa 
Warren,  Waterhury,  White,  Willard,  Witbeck,  Wood,  A. 
Wright,  Yawger,  A.  W.  Young,  J.  Youngs,  President— 103. 

DOOR-KEEPER  FOR  LADIES'  GALLERY. 
Mr.  RUSSELL  then  offered  a  resolution  that  a 
door-keeper  be  appointed  by  the  President,  to 
take  special  charge  of  the  ladies'  gallery.  And 
he  thought  that  the  experience  of  the  last  few 
days  had  satisfied  members  that  such  an  appoint- 
ment was  absolutely  necessary.  The  other  three 
door-keepers  were  all  wanted  at  the  three  doors 
on  that  floor,  to  preserve  order — not  one  of  them 
could  be  spared.  And  he  had  observed,  and  many 
others  had  observed,  with  regret,  during  the  last 
week,  that  ladies  coming  to  this  house,  desiring, 
anxiously  and  commendably,  to  hear  the  debates 
and  witness  the  proceedings,  had  been  crowded 
out  of  their  legitimate  seats,  in  the  front  of  their 
gallery,  by  gentlemen,  and  been  obliged  to  take 
the  back  seats.  This  has  been  the  case ; — 
and  yesterday,  from  this  very  cause,  seve- 
ral ladies  were  compelled  to  take  seats  in  the 
gentlemen's  gallery,  in  order  to  hear  the  de- 
bates. And  he  had  heard  it  remarked — many 
ladies  in  this  city  had  said  to  him — that  they 
hould  not  be  able  to  attend  here  and  hear  the  de- 
bates, unless  the  front  seats  in  their  own  gallery 
were  kept  free  from  such  intrusion,  and  them- 
selves from  this  annoyance,  by  the  proper  officer. 
In  this  country,  where  the  sex  have  higher  privi- 
leges than  in  any  other  upon  the  face  of  the  earth, 
and  where  they  are  held  in  higher  estimation  by 
men,  (a  feeling  which  should  be  universal,)  the 
usages  of  society  alone  demanded  that  all  the  pri-  < 
vileges  accorded  should  be  fully  secured  to  them, 
and  he,  therefore,  trusted  that  the  good  sense  of 
the  members  would  see  the  necessity  of  passing 
this  resolution. 

Mr.  PATTERSON  said  that  it  was  very  neces- 
sary that  the  gentleman  from  St.  Lawrence  (Mr. 
RUSSELL)  should  designate  which  was  the  "  la- 
dies' gallery" — or  what  he  calls  the  "  ladies' gal- 
.ery."  It  is  true  that  there  is  a  place  so  designa- 
4ed  by  the  legislature  ;  and  the  Assembly  have  es- 
:ablished  a  rule,  insisting  that  no  gentleman  shall 

allusions.  But  looking  at  the  precedent  it  would  go  in  there,  or  occupy  a  seat  there,  unless  accom- 
afford  and  the  resulting  consequences,  with  the  I  panied  by  a  lady  ;  and  he  believed  that  if  the  Pre- 
considerations  he  had  suggested— he  must  vote  sident  was  to  direct  the  Sergeant-at-Arms  to  hang 
against  it.  up  a  mere  notice  to  that  effect  upon  the  door  of 

Mr.  CROOKER  desired  to  have  the  word  two  that  gallery,  it  would  meet  the  object  as  effectual- 
striken  out  in  the  resolution,  and  the  number.left  ly  or  more  so,  than  if  we  were  to  employ  a  hanger- 
in  blank.  He  had  no  objection  to  have  the  on  here,  and  pay  him  $3  a  day  for  taking  charge 
whole  body  of  Reporters  that  were  present  ap-  of  that  gallery  and  giving  the  like  notice.  -The 
pointed  ;  and  he  called  for  the  ayes  and  noes.—  j  gentleman  from  St.  Lawrence  has  told  us  a  great 


66 


deal  about  the  feelings  and  opinions  of  the  ladies 
on  this  matter.  Now,  he  doubtless  under- 
stands the  opinions  of  the  ladies  on  that  subject 
better  than  he  (Mr.  P.)  did.  (Laughter.)  For 
his  own  part,  he  had  not  had  the  pleasure  of  con- 
versing with  any  of  the  ladies  of  this  city  on  the 
subject,  but  it  appears  that  his  honorable  friend 
from  St.  Lawrence  (Mr.  RUSSELL)  had  been  more 
fortunate  than  himself  in  this  respect.  (Laugh- 
ter.) He  had  heard  no  complaints  on  the  part  of 
ladies  that,  as  the  gentleman  says  he  has,  they 
were  not  allowed  to  occupy  the  seats  which  have 
been  appropriated  to  them ;  but  if  this  be  the 
case,  still  he  was  opposed  to  the  expenditure  of 
the  public  money  for  that  purpose,  as  the  design  of 
the  Assembly  in  relation  to  those  ladies  could  be 
properly  carried  out,  by  merely  putting  up  the 
notice  he  had  suggested.  He  therefore  moved  to 
strike  out  all  after  the  word  "  Resolved,"  and  in 
sert, — "  That  the  south  gallery  be  set  apart  by  or- 
der of  the  Convention  for  the  use  of  ladies  and 
gentlemen  with  them." 

Mr.  SWACKHAMER  moved  to  amend  this  by 
adding — "  And  that  a  door-keeper  be  appointed 
there  to  see  that  the  same  regulation  be  put  in 
force." 

Mr.  PATTERSON— That  can't  be  any  amend- 
ment to  mine. 

Mr.  SWACKHAMER  said  he  had  at  first  voted 
against  this  doorkeeper  ;  but  he  now  saw  that  we 
must  have  him.  And  if  gentlemen  on  the  other 
side  could  only  sit  where  he  did,  and  see  the  do- 
ings, and  movements  and  carryings  on  in  that  la- 
dies' gallery  from  day  to  day,  they  would  vote  for 
it  as  cheerfully  as  he  would. 

Mr.  CHATFIELD— I  shall  be  most  happy  to 
change  seats  with  the  gentleman.  (Laughter.) 

Mr.  SWACKHAMER— Thank  you,  sir;  I'm 
perfectly  well  satisfied  with  my  present  position 
and  prospect.  (Laughter.) 

Mr.  PATTERSON  offered  a  resolution,  thus  : 

Resolved,  That  the  Sergeant-at-Arms  be  directed  to  put 
up  a  notice  on  the  door  of  the  south  gallery,  stating  that 
all  gentlemen  are  excluded  therefrom  unless  accompan- 
ied by  a  lady. 

Mr.  P.  said  that  there  was  a  Sergeant-at-Arms, 
and  for  his  part  he  really  did  not  see  what  his  du- 
ties were,  or  could  be ;  or  what  he  has  got  to  do 
besides  lounging  about.  We  had  much  better  put 
him  up  there  if  an  officer  is  wanted.  He  hoped  that 
that  officer  will  not  be  obliged  during  this  session 
to  put  on  his  broad  sword,  and  to  fetch  members 
from,  their  lodgings.  But  he  had  been  appoint- 
ed, any  how.  How  it  was  done,  he  (Mr.  P.)  did 
not  know.  But  since  we  had  got  him,  we  had 
better  use  him  ;  and  that  was  about  the  best  use 
that  we  can  put  him  to.  (Laughter.) 

Mr.  RUSSELL  was  opposed  to  the  substitute 
of  Mr.  PATTERSON  ;  and  it  was  idle  to  say  that 
persons  who  will  rudely  thrust  themselves  for- 
ward, and  take  the  front  seats  in  the  Ladies  gal- 
lery away  from  the  ladies  themselves,  when  they 
saw  the  latter,  sitting  uncomfortably  away  in  the 
back  seats,  would,  on  a  mere  notice,  such  as  men- 
tioned here,  retire  and  give  up  thosq  seats.  No, 
not  even  here  on  this  floor  could  we  prevent 
it,  even  by  putting  up  a  notice  at  these  doors 
that  none  should  be  admitted  except  accompan- 
ied .  by  a  member.  We  had  besides  many  la- 
dies from  the  country,  with  their  friends, 


who  did  not  know  where  the  appropriate  gal- 
lery for  them  to  sit  is  located.  This,  the  door- 
keeper could  tell  them;  and  also  tell  them  the 
names  of  the  memb'ers  speaking,  and  all  such  in- 
formation that  might  be  necessary,  or  that  they 
might  desire.  He  hoped  that  an  appeal  to 
the  spirit  of  gallantry  ,^f  not  of  justice  of  the  mem- 
bers, would  induce  them  to  vote  for  this  resolu- 
tion; so  that  the  ladies  might  be  accommodated 
with  appropriate  and  convenient  seats,  and  that  a 
proper  officer*  might  be  appointed  who  should 
see  that  those  seats  were  secured  to  them. 

Mr.  RUSSELL  would  state  further,  that  pre- 
isely  such  a  notice  as  that  alluded  to  by  the  gen- 
tleman from  Chautauque,  (Mr.  PATTERSON)  was 
posted  on  the   door  of  the  gallery  now,  and  has 
been  there  for  years. 

Mr.  PATTERSON :  Who  put  it  there? 

Mr.  RUSSELL  :  It  has  been  there  for  years. 

Mr.  PATTERSON  :  It  was  placed  there,  then 
by  the  Assembly.  It  has  not  been  placed  there 
by  the  order  of  the  Convention.  We  have  authori- 
sed nothing  of  the  kind. 

The  resolution  and  amendments  were  then 
re  ad. 

Mr.  PATTERSON  submitted  that  the  amend- 
ment was  precisely  the  original  resolution  as  of- 
fered. 

Mr.  RUSSELL  called  for  a  division  of  the 
question. 

Mr.  RHOADES  said  that  the  proposition  of  the 
gentlernan  from  St.  Lawrence  came  to  him  in 
such  a  form  that  he  found  it  impossible  to  resist 
it.  He  regarded  it  as  a  petition  from  the  ladies  that 
doorkeepers  should  be  appointed  to  superintend 
their  gallery,  and  that  they  had  chosen  the  gen- 
tleman as  their  organ  for  its  communication  to  the 
house.  And  he  was  only  surprised  to  find  the 
gentleman  from  Chautauque  (Mr.  PATTERSON) 
in  opposition  to  it — a  man  who  had  been  so  long 
the  object  of  the  admiration  of  the  ladies.  [Laugh- 
ter.] If  he  had  heard  one,  he  had  heard  one  hun- 
dred, ladies  since  he  had  been  here,  express  their 
admiration  of  that  gentleman, — and  now  for  the 
sake  of  saving  the  small  sum  of  $1,50  per  day,  he 
ought  not  to  resist  the  application  of  the  ladies  for 
a  doorkeeper  to  be  appointed  to  their  gallery. — 
[Laughter.]  He  hoped  the  appointment  would 
be  made,  and  that  the  President  would  exercise 
his  discretion  so  as  to  make  one  very  acceptable 
to  the  ladies.  He  hoped  all  opposition  to  the 
measure  would  be  withdrawn. 

Mr.  CROOKER  would  inform  the  gentleman 
from  Onondaga  (Mr.  RHOADES)  what  it  was  that 
influenced  the  gentleman  from  Chautauque  (Mr. 
PATTERSON)  against  this  measure.  He  had  a 
seat  under  the  gallery — where  he  could  have  no 
view  of  the  ladies.  Change  his  location  and  his 
support  to  .the  measure  was  secured.  [Laughter.] 
Mr.  PATTERSON  thought  it  made  very  little 
difference  to  him  whether  he  was  located  in 
Greenbush  or  in  any  other  part  of  the  house. — 
For  himself,  he  desired  that  the  ladies  should 
have  a  gallery  suitable  for  their  occupation  when 
they  came  here,  and  he  wished  that  gallery  to  be 
kept  in  good  order.  But  he  doubted  very  much 
whether  the  gentleman  froift  Onondaga  had  re- 
ceived the  petition  of  100  ladies,  that  a  door- 
keeper should  be  appointed  to  take  charge  of 
them. 


67 


Mr.  RHOADES  would  be  allowed  to  explain. 
What  he  said  was,  "  if  he  had  heard  one  lady 
speak — not  of  the  galleries — but  in  admiration  of 
his  friend  from  Chautauque,  he  had  heard  a  100." 
[Laughter.] 

Mr.  PATTERSON  said  that  the  gentleman's 
remark  was  very  unfortunaMly  qualified  by  the  lit- 
tle word  IF.  He  says  if  he  hm  heard  one  lady,  then 
he  had  a  hundred.  (He  (Mr.  P.)  had  no  doubt  of 
it.  [Laughter.]  Now  it  was  entirely  immaterial 
whether"the  ladies  gave  that  decided  approbation 
spoken  of  by  the  gentlemen  from  Onondaga  and 
St.  Lawrence,  to  the  gentleman  from  Chautauk, 
(as  the  gentleman  from  Orange  would  say,)  or  not 
— he  had  no  objection  to  the  ladies  being  ta- 
ken care  of.  But  he  did  object  to  the  employment 
of  a  hanger-on,  to  take  charge  of  that  gallery. — 
We  had  a  Sergeant-at-Arms,  who  had  little  or  no 
business  to  do ;  and  if  it  was  necessary  to  send  an 
officer  up  there,  send  him.  There  was  no  sort  of 
necessity  for  the  appointment  of  any  new  officer — 
and  he  would  enquire  what  authority  would  be 
found  in  the  Convention  act  for  such  appointment. 
There  were  officers  enough — more  messengers 
than  could  be  profitably  employed, — they  were 
in  each  other's  way,  and  it  was  better  to  send  one 
of  them  up  there.  He  saw  no  reason  to  change 
his  opinion  in  relation  to  this  appointment. 

Mr.  BASCOM  hoped  that  this  resolution  would 
not  be  adopted,  just  after  one  had  been  voted  down 
so  unanimously  for  the  diffusion  of  information 
among  the  people.  We  had  taken  liberal  ground 
enough  when  ourselves  were  to  be  provided  for, 
and  had  been  pretty  liberal  towards  the  officers — 
had  procured  whatever  newspapers  we  might  de- 
sire, but  when  we  came  to  say  whether  the  pro- 
ceedings of  the  Convention  should  go  into  every 
corner  of  the  State,  where  it  never  would  go  un- 
less so  provided  for,  we  could  refuse  to  do  it  with 
great  unanimity.  Mr.  B.  said  that  an  occasional 
intimation  firm  the  Chair  would  be  more  efficient 
for  the  prosen  ation  of  order  in  the  ladies'  gallery 
than  any  officer  who  could  be  put  there,  and 
would  be  more  complimentary  and  gratifying  to 
them.  But  Mr.  B.  did  not  believe  there  would 
be  a  very  strong  disposition  among  the  ladies  to 
witness  these  proceedings,  unless  the  work 
changed,  nor  was  he  desirous  that  the  trifling, 
technical  character  of  the  matters  which  had  been 
debated  should  be  thus  witnessed.  He  did  not 
believe  it  at  all  necessary  to  increase  the  number 
of  officers  around  the  Convention,  and  he  should 
therefore  vote  against  the  proposition. 

Mr.  STRONG  in  reply  to  the  remarks  of  Mr. 
B.,  that  the  debates  now  were  not  interesting, 
said  that  he  thought  them  to  be  very  much  so — 
particularly  those  which  had  arisen  this  morn- 
ing. He  was  at  the  organization,  opposed  to  the 
appointment  of  a  door-keeper  in  the  Ladies'  Gal- 
lery, from  the  fact  that  when  he  was  a  member 
of  the  Assembly,  gentlemen  observed  the  rule, 
and  it  was  unnecessary  for  an  officer  to  take 
charge  of  it.  But  experience  had  taught  him 
that  no  regard  whatever  was  now  paid  to  this 
rule — and  when  he  was  satisfied  that  he  was 
wrong,  he  was  willing  to  acknowledge  it.  He 
had  but  one  objection  to  the  resolution,  and  he 
trusted  his  amendment  would  be  accepted.  There 
was  a  young  lad  here  whom  he  thought  from  the 
little  he  had  seen  of  him,  would  be  precisely  the 


man  for  the  post.  His  name  was  George  C.  Gill, 
an  active,  young  lad,  and  about  the  right  age  and 
size.  He  would  move  to  amend  the  resolution  so 
as  to  appoint  this  lad  to  the  post. 

Mr.  BRUCE  hoped' that  the  original  resolution 
would  not  be  adopted,  and  that  the  amendment  of 
Mr.  P.  would  pass.  He  could  see  no  necessity 
for  a  gallery  doorkeeper — and  he  began  '  to  be 
somewhat  suspicious  of  the  gentleman  from  Onon- 
daga and  St.  Lawrence,  aware  as  he  was,  that 
they  had  had  many  years  experience  in  legisla- 
tion, and  had  never  until  this  moment  manifested 
such  a  zeal  for  the  ladies.  He  believed  that  there 
was  not  an  instance  known  of  the  appointment  of 
such  an  officer.  There  was  the  sergeant-at-arms, 
and  it  was  his  duty,  be  believed,  on  certain  occa- 
sions, and  in  cases  of  extreme  necessity,  to  put  on 
his  sword,  and  place  himself  in  battle  array;  and 
he  would  suggest  that  if  the  rights  of  the  ladies 
are  invaded,  that  he  be  allowed  to  march  in  de- 
fence of  women's  rights,  and  he  believed  the 
House  would  sustain  him. 

Mr  RUSSELL  wished  to  correct  the  gentle- 
man |(Mr.  B.)  in  one  point.  He  was  mistaken 
when  he  said  that  there  never  had  been  any  such 
or.ceras  doorkeeper  to  the  ladies' gallery.  He 
(Mr.  R.)  was  informed  that  at  the  last  session  of 
the  Legislature,  there  was  a  doorkeeper  for  each 
of  the  galleries.  At  the  request  of  ^  several,  he 
woulft  withdraw  his  call  for  a  division  of  the 
question. 

Mr.  SHEPARD  offered  an  amendment  which 
he  thought  would  meet  with  favor,  and  the  in- 
trinsic propriety  of  which  would  strike  the  Con- 
vention at  once.  It  was  to  strike  out  all  after  the 
word  "  Resolved,"  and  insert,  "  that  the  seats  on 
the  floor  of  the  house  under  the  galleries  should  be 
appropriated  for  the  use  of  ladies,  and  gentlemen 
accompanying  them,  and  the  whole  of  both  galle- 
ries for  the  use  of  gentlemen." 

The  PRESIDENT  said  the  amendment  was  not 
in  order  until  there  was  a  disposition  of  the  pre- 
sent question — which  was  on  the  amendment  pro- 
posed by  Mr.  SWACKHAMER. 

Mr.  PATTERSON  renewed  the  call  for  a  divi- 
sion of  the  question, 

The  question  first  being  on  striking  out,  it  was 
refused  to  strike  out — ayes  49,  nays  49. 

Some  conversation  here  ensued  on  a  question  of 
order,  as  to  whether  Mr.  SHEPARD'S  amend- 
ments was  now  in  order  or  not,  which  was  not 
decided  when 

Mr.  PERKINS  called  for  the  previous  ques- 
tion—which would  bring  the  vote  back  on  the 
original  motion. 

Mr.  STRONG  hoped  that  the  gag-law  would 
not  be  enforced  here. 

There  was  a  second  to  the  call  for  the  previous 
question — ayes  53,  nays  38 ;  and  the  mam  ques- 
tion was  then  ordered. 

The  resolution  as  originally  introduced  was  then 
adopted— AYES  61,  NAYS  47,  as  follows  : 

AYES— Messrs.  Angel,  Bouck,  Bowdish,  Cambreleng, 
D.  D.  Campbell,  R.  Campbell,  Jr.,  Clark,  Con«l) ,  Cook, 
Cornell,  Crocker,  Cuddeback,  Danforth,  Dodd,  Dorlon , 
Dubois,  Gvbbard,  Greene,  Hart,  Hoffman,  Hotchkiss,  Hunt- 
A.  Huntington,  Hutchinson,  Hyde,  Jones,  Kemble,  Kenne, 
dy,  KingsUy,  Kirkland,  Loomis,  Mann,  McNeil,  McNitt, 
Maxwell,  Murphy,  Nicoll,  O'Conor,  Parish,  Perkins,  Por- 
ter, Rhoades,  Riker,  Russell,  St.  John,  Sanford,  Shepard, 
Simmons,  Stevens,  Stetson,  Stow,  Swackhamer,  Tafft,  W. 


68 


Taylor,  Tilden.Townsend,  Tuthiil,  Vache.Ward,  J.  Young 
—61. 

NOES— Messrs.  Allen,  Archer,  Ayrault,  F.  F.  Backus, 
H.  Backus,  Baker,  Bascom  Bergen,  Brayton,  Bruce,  Bull, 
Burr,  Candeu,  Chatfield,  Dana,  Flanders,  Gardiaer,  Hard- 
son,  Hawley,  Hunter,  E.  Huntington,  Kernan,  Marvin. 
Miller,  Nicholas,  Patterson,  Penniman,  Richmond,  Salis. 
bury,  Sears,  Shaver,  Shaw,  Shelden,  E.  Spencer,  W  H. 
Spencer,  Stanton,  Strong,  TallmaOge,  J.  J.  Taylor,  War- 
ren, Waterbury,  White,  Willard,  Wood.  A.  Wright,  Yaw- 
£er,  A.  W.  Young-  47. 

THE  ARRANGEMENT  OF  COMMITTEES. 

And  then  on  motion  of  Mr.  JONES,  the  Con- 
vention went  into  committee  of  the  whole  on  the 
report  of  the  select  committee  of  seventeen — Mr. 
TALLMADGE  in  the  Chair. 

Mr.  SHEPARD  desired  to  offer  an  amendment 
to  the  3d  resolution — to  insert  after  the  word 
thereto  in  the  4th  line,  the  words,  "  and  all  proper 
piodes  to  secure  the  future  safe-keeping  and  dis- 
bursement of  the  public  revenue." 

Mr.  RICHMOND  said  the  question  was  on  his 
amendment. 

Mr.  TILDEN  asked  the  Chair  to  state  the  ques- 
tion pending  yesterday. 

The  CHAIR:  The  Clerk  will  read. 

The  CLERK :  On  the  amendment  offered  by 
Mr.  TILDEN  which  leaves  the  resolutions  as 
follows : 

Resolved,  That  standing  committees  be  appointed  to 
consider  and  report  on  the  iolbwing  subjects,  rfhd  that 
the  seveial  parts  of  the  existing  Constitution  which  re- 
late to  those  subjects  respec'ively,  be  also  referred  to  the 
same  committees  .- 

1.  The    apportionment,    election,   tenure  of  office  and 
compensation  of  the  Legislature. 

2.  The  powers  and  duties  of  the  Legislature,  except  as 
to  public  (iebt. 

3.  Canals,  internal  improvements,  public  revenues  and 
property,   and  public  debt,    and  the  powers  and  duties  of 
the  Legislature  in  reference  thereto. 

4.  The  elective  franchise— the  qualification  to  vote  and 
hold  office. 

5  Tht-  election  or  appointment  of  all  officers  other  than 
legislative  and  judicial  whose  duties  and  powers  are  ntt 
local,  and  their  powers,  duties  and  compensation. 

7   The  militia  and  military  iiflairs. 

8.  Official  oaths  and  affirmations,  and  oaths  and  affirma- 
tions in  legal  and  equity  proceedings. 

9.  Tue  judiciary  system  of  the  State. 

10.  The  rights  and  privileges  of  the  citizens  of  this  state. 

11  Education,    common    schools    and   the  appropriate 
funds. 

12  Future  amendments  and  revision  ofthe  Constitution. 

13.  The   organization   and    powers    of  cities,  villages, 
towns,  counties  and  oiher  municipal  corporations  ;   and  es- 
pecially   their  power  of  assessment,  taxation,  borfowirg 
mone\  ,  and  contracting  debts. 

14.  The  currency,  banking  business  and  incorporation. 

15.  The  subject  of  the  tenure  of  landed  estates. 

Mr.  TILDEN  said  that  his  amendments  were 
designed  to  simplify  the  resolutions  under  consid- 
eration, and  to  obviate  objections  which  ex- 
isted in  the  minds  of  some  gentlemen,  in  which 
he  did  not  himself  share.  The  form  of  the 
original  resolutions  was  a  mere  reference  of  the 
parts  of  the  Constitution  relating  to  particular 
subjects.  It  was  objected  that  there  were  sub- 
jects not  embraced  in  any  provision  of  the  ex- 
isting Constitution,  and  some  gentlemen  enter- 
tained doubts  as  to  the  authority  of  the  respective 
committees  over  subjects  not  thus  embraced. — 
He  did  not  himself  entertain  any  idea  that  the 
resolutions  would  be  hereafter  so  literally  con- 
strued, but  inasmuch  as  the  question  was  raised 
he  thought  it  should  be  put  at  once  to  rest, 
and  with  that  view  his  amendment  was  offered. 


It  at  least  had  the  effect  of  simplifying  very 
much  the  language  of  the  resolutions,  condensing 
it  one  half  and  putting  it  in  the  same  form  as  the 
rules  constituting  committees  of  the  legislature. 
He  was  not  strenuous  for  the  adoption  of  this 
amendment.  It  was  offered  as  he  had  before  stat- 
ed to  answer  the  scriples  entertained  not  by  him- 
self, but  by  others,  and  in  the  hope  that  it  might 
prevent  the  repetition  of  objections  which  would 
occasion  much  delaj  hereafter. 

Mr.  RICHMOND  supposed  that  the  amendment 
if  adopted,  would  not  materially  affect  the  pro- 
position introduced  by  himself,  and  which  he 
supposed  was  first  in  order.  His  amendment  was, 
that  this  matter  of  loaning  the  credit  of  the  State, 
should  be  referred  to  a  separate  committee,  to 
come  in  as  No.  16  in  the  classification. 

Mr.  SIMMONS  was  of  opinion  that  the  amend- 
ment proposed  by  the  gentleman  from  New  York, 
was  desirable,  as  it  admits  of  stating  the  other  re- 
solutions in  a  little  better  form,  and  more  easily 
of  contracting  the  three  first  resolutions  into  two; 
and  it  seemed  to  him  desirable  to  lessen  the  num- 
ber of  committees.  If  the  amendment  of  the  gen- 
tleman from  New  York  was  adopted,  then  he 
proposed  that  the  three  first  committees  should 
be  incorporated  into  two— each  of  which  would 
be  very  distinct,  and  would  reserve  to  them  dis- 
tinct landmarks.  It  will  read  then  after  enume- 
rating the  subject: — 

1.  The  constitution  of  1he  legislative  department,  with 
its  general  poweis  and  duties 

2.  The  particular  powers  and  limitations  of  the  legisla- 
ture concerning  canals  and  rail-reads,  the  public  property 
and  revenues,  and  the  public  debt  and  credit. 

Mr.  HOFFMAN  believed  that  the  motion  now 
was  to  strike  out  a  very  substantial  part  of  the 
projet  presented  by  the  committee  of  17,  and 
laid  upon  the  table  yesterday.  It  would  certain- 
ly be  entirely  competent  and  as  he  thought  very 
proper  to  go  through  with  the  projet,  and  allow 
any  gentleman  here  and  more  especially  the  mem- 
bers ofthe  committee,  after  hearing  all  the  opin- 
ions here  to  make  the  matter  sought  to  be  strick- 
en out,  as  perfect  as  possible.  He  had  laid  on 
his  table  yesterday  this  projet.  He  had  endeav- 
ored to  study  it  while  in  committee — had  taken 
it  home  to  his  room,  and  there  submitted  it  to 
the  best  reflection  in  his  power.  He  came  here 
this  morning  scarcely  knowing  what  the  amend- 
ments proposed  amounted  to,  and  he  had  to  study 
them  here  to  day  as  he  did  the  projet  yesterday. 
He  believed  it  to  be  entirely  in  the  power  ofthe 
committee  who  had  this  matter  in  charge,  with- 
out any  very  serious  change  in  the  form,  to  correct 
any  slight  inaccuracies  in  the  substance  ofthe  pro- 
jet  and  before  any  question  to  strike  out  was  taken, 
he  hoped  that  course  would  be  taken  with  it.  It 
seems  to  be  objected  to  in  the  form  of  the  projet 
as  presented  by  the  committee,  that  it  was  not 
entirely  artistic,  in  a  parliamentary  sense.  If  this 
be  so,  it  may  be  amended,  and  only  proves  that 
the  committee  had  devoted  more  attention  to  the 
subject  than  to  the  form,  of  the  matter  to  be  sub- 
divided. The  principal  objection  he  had  heard 
yesterday,  and  one  which  he  thought  very  pro- 
perly taken,  arose  from  the  double  sense  so  com- 
monly applied  to  the  word  Constitution.  It  might 
mean  precisely  the  written  Constitution  of  the 
country,  and  it  was  likely  that  the  gentleman  who 


69 


objected  to  it,  took  it  in  that  sense  ;  or  it  might 
mean,  in  a  broader  sense,  all  those  fixed  parts  in 
a  responsible  government,  which  are  deemed  un- 
changeable  and   are  unchanged.     Therefore,  he 
would  surest   to  the  committee  that  where  the 
word  Constitution   in  the  programme  occasioned 
any  difficulty  of  this  kind,4;o  insert  immediately 
after  it  the  words,  "  and  government."     This,  in- 
cluding the  actual  with  "that  which  they  had  in 
their  minds  in  its  broadest  sense, — and  making  it 
substantially,  so  far  as  casually  looking  at  it,  ena- 
bled him  to  judge,  as  it  would  be  when  amended 
by  his  friend  from  New  York,  over  the  way,  (Mr. 
TILDEN,)  would  free  it  from  all  difficulties  in 
his  mind,  in  regarding  it  as  a  full  and  fair  reference 
of  the  subject' named,  wrhether  embraced  in  the  old 
Constitution,  or  only  a  matter  in  the  actual  work- 
ings of  the  existing  government.     Among   other 
matters  proposed  yesterday,  was  the  transposition 
of  the  1st  and  3d   resolution— but  he  was  unable 
to  see  the  necessity.     The  committee  to  be  ap- 
appointed  by  the  3d  resolution   would  be  one  of 
the   most   important.     He  had   occasion  yester- 
day to  say  something  in  reference   to  one  of  the 
duties  it  would  have  to  perform :  One  so  as  even- 
tually,   now    or    hereafter  to  secure,    if  it  was 
in  human    effort,    an  affirmative,  specific,  enu- 
meration    of  legislative    power.     But    whether 
they     engage     in    that '  heavy    undertaking    or 
not,    the   committee   will  be  from  the  very  na- 
ture of  things,  and  its  designation  in  the  program- 
me, a  committee  to  consider  all  the  limitations  on 
the  legislative  power — all  the  proscription  of  leg- 
islative  duties, — not  specifically   transferred    to 
other  committees      And  it  must  strike  the  mind 
of  members  that  there  will  be  as  there  should  be, 
very  many  propositions  setting  such  safe  limits  to 
legislative  powers  as  will  make  the  right  of  labor 
and  property  secure — and   be  safe  to  free  govern- 
ment.    If  mere  was  any  obscurity  in  the  general 
words  used  by  the  committee  of  17,  that  might  be 
obviated  by  amending  the  exception  that  is  now  in 
the  third  resolution.     That  was  by  excepting  the 
specific   matters  contained  in   the  subsequent  01 
third  resolution.     An  amendment  was  moved  by 
his  friend  from  New- York  on  his  right,  to  sepa- 
rate what,  in  the  action  of  government,  and  in  the 
very  nature  of  things,  cannot  be  separated — that  is 
£  separation  of  the  debt,  finances  and  State  credit. 
He  thought  they  must  be  considered  together,  anc 
he   believed  it  would  be  impossible  to  separate 
them.  And  in  the  action  actual  of  the  government, 
he  knewthat  one  of  these  had  frequentlybeen  made 
a  substitute  for  the  other,  and  he  was  bound  to  say 
that  the  giving  away  of  the  State  credit  was   not 
perhaps  the  worst  form  of  giving  away  the   State 
effects,  and   of  creating    State  debts,   bad   as  it 
might  appear.     The   committee    would   excuse 
him  for  calling  their  attention  to  a  small  case  il- 
lustrative of  this  matter.     The  legislature  of  the 
State  passed  an  act  requiring  the  Canal  Commis- 
sioners, to  examine  and    to  certify  whether   it 
would  be  beneficial  to  the   State— to   purchase  a 
canal,  he  believed  called  the  Oneida  Lake  canal 
— a  canal  devised  by  individuals  to  open  a  com- 
munication between  the  Oneida  Lake   and   the 
Erie  canal,  and  overcoming  about  40  or  50  feet  of 
lockage.     The  bill  further  provided   that  if  the 
commissioners  gave  this  certificate,  that  the  State 
should  pay  the  owners  $50,000.    They  examined 


he  matter  and  they  gave  the  certificate.     In   the 
:ourse  of  his  official   duties,  the   question  came 
up  where  he  was  obliged  to  decide  upon  it.     Sup- 
)-jsing  it  to  be  utterly  impossible  that  such  a  cer- 
ificate  had  been  given,  he  said  to  the   applicant 
'hat  it  could  not  be  allowed  unless  the  paper  was 
ihown.     The  paper  was  produced  !  the  commis- 
sioners had  certified  that  it  would  be   advantage- 
ous to  the  people  to  give  $50,000   for  a  canal. — 
The  State  gave  not  a  dollar  in  money  for  it,  for 
t  had  none — it  gave  its  credit,  its  note,  bond  or 
scrip  in  the  place  of  payments,  and  possessed  it- 
self of  this  advantageous  speculation,   which   is 
said  to  yield  a  revenue  of  a  few  hundreds  a  year, 
and  to  cost  in  its  annual  expenses  of  repair  sever- 
al thousands.     Assuming  the  form  of  a  purchase 
and  payment,  it  was  in  reality  a  gift.   .  The  giv- 
ing outright,  fairly  and   aboveboard,  to  this   and 
thtt  man  or   •orporation,  of  a    few  $100,000  of 
State  credit,  might  be  less  objectionable  than  the 
conveying  of  it  away  in  this  form  of  bargain  and 
sale.    He  had  mentioned  this  case,  not  in  a  spirit  of 
reprobation,  but  to  illustrate   the  position  he  had 
taken — that  whatever    committee   was  charged 
with  the  question  of  finance  and  debt,  must  also 
be  with  all  the  ways  and   means,  by  which  reve- 
nues are  raised,  diminished,  distributed,  and  debt 
created  or  paid.     The  amendment  of  the  gentle- 
man from  New  York  yesterday,  seemed  to  him  to 
improve  the  3d  resolution,  by   making  it  more 
specific.    Making  this  amendment,  so  far  as  the 
programme  had  gone,  with  a  slight  alteration  in 
relation  to  judicial  officers,  it  seemed  to  him 
about  as  fair   as  we   could  expect  to  make  this 
matter.     There  must  and  will  be  necessary  addi- 
tions.    Of  these  additions,  he  did  not  feel  him- 
self at  liberty  now  to  speak.     When  the  commit- 
tee who  had  it  in  charge  had  made  the  matter  as 
perfect  as  they  could,  if  his  friend  from  New*  York 
(Mr.  TILDEN)  desired,  he  had  no  objection  to  the 
question  on  striking  out.     Until  they  had  that  op- 
portunity, he  supposed  the  question  to  strike  out 
ought  not  to  be  pressed.     If  the  amendment  of 
the  gentleman  from  New  York  was  pressed,  then 
those  who  desired  a  select  committee  on   State 
credit  would  undoubtedly  resist  it,  because  if  suc- 
cessful, it  would  not  give  them  a  fair  opportunity  to 
add  a  16th  resolution.  He  had  stated  his  opinions 
in  relation  to  the  formation  of  these  committees, 
but  he  had  no  very  serious  apprehensions  that 
there   would  be  any  great  collision  on  subjects 
that  might  come  up  between  any  two  committees. 

Mr.  JONES,  in  accordance  with  the  sugges- 
tions of  the  gentleman  from  Herkimer,  and  the 
wishes  of  others,  with  whom  he  had  conversed, 
would  move  the  amendment  to  add  the  words, 
'and  government'  after  the  word  Constitution  in 
each  resolution.  Not  because  he  deemed  it  ne- 
cessary, but  in  conformity  to  the  suggestions  he 
had  referred  to.  As  Chairman  of  the  select 
committee  he  ha^  a  right  to  make  these  amend- 
ments. 

Mr.  RICHMOND  believed  the  first  question  to 
be  on  his  proposition.  The  others  were  offered 
as  amendments  to  the  report  of  the  committee, 
while  his  was  offered  as  a  new  and  distinct 
proposition.  His  proposition  was  not  at  all  af- 
fected by  any  other  that  had  been  proposed. — 
Therefore  he  hoped  it  would  be  understood  that 
whatever  dispositiorFmight  be  made  of  his  propo- 


70 


sition,  it  would  not  effect  those  of  other  gentle- 
men. It  was  a  proposition  for  a  separate  com- 
mittee. 

The  CHAIRMAN,  (Mr.  TALLMADGE,) 
thought  the  amendment  providing  for  a  16th  rule 
not  to  be  in  order  until  the  consideration  of  the 
rule  preceding  it  should  be  reached.  The  Chan- 
went  on  to  explain  the  position  of  the  question 
as  it  understood  it.  The  committee  had  the  3d 
resolution  under  'consideration,  and  a  motion  to 
strike  out  and  amend  that  would  be  in  order,  but 
not  to  substitute  propositions  covering  the  whole 
series. 

Mr.  RICHMOND  inquired  if  it  would  reliere 
the  committee  from  any  difficulty  if  he  struck  out 
the  number  of  his  resolution. 

The  CHAIRMAN'S  impression  was,  that  the 
best  way  to  offer  it  would  be  as  a  supplement  to 
the  3d  resolution* 

Mr.  RICHMOND  would  then  modify  hie  reso- 
lution as  indicated. 

Mr.  PATTERSON  said  that  the  CHAIR  was 
clearly  right.  The  amendment  the  gentleman 
proposed  was  a  distinct  resolution.  It  had  given 
us  a  good  deal  of  trouble.  At  one  time  it  was  of- 
fered as  an  amendment  to  the  2d  resolution,  and 
sometimes  to  the  3d — then  as  a  16th  rule,  and 
now  it  was  nowhere  at  all. 

The  CHAIR  said  if  the  gentleman  would  only 
say  where  it  was  to  be  inserted,  it  should  be  so 
amended. 

Mr.  RICHMOND  said  that  he  had  been  too 
yielding  in  this  matter.  For  the  accommodation 
of  gentlemen,  he  had  yielded  yesterday;  but  still 
Ihe  was  willing  now  that  the  resolution  should  be 
said  on  the  taole  until  the  15th  resolution  was 
reached. 

The  CHAIR  stated  the  question  to  be  on  the 
amendment  of  the  gentleman  from  New  York, 
(Mr.  TIL.DEN.) 

Mr.  T1LDEN  further  explained  his  amend- 
ment,'when 

The  CHAIRMAN  remarked,  that  in  his  opinion 
the  question  should  be  taken  on  each  resolution. 

Mr,  T1LDEN  said  if  it  was  required  to  vote  15 
times  on  this  proposition,  he  must  consent  to  it 
of  course. 

Mr.  PATTERSON  said  that  the  hour  of  2  hav- 
ing arrived,  he  would  vote  to  rise  and  report  pro- 
gress. 

The  motion  was  carried,  and  the  question  be- 
ing on  granting  leave  to  sit  again, 

Mr.  NICHOLAS  said  that  the  experience  of 
the  past  two  days  must  have  convinced  gentle- 
men that  it  was  better  for  us  to  have  adopted  the 
report  of  the  committee  of  seventeen,  and  permit- 
ted the  several  committees  to  have  been  appoint- 
ed. If  this  course  had  been  adopted,  perhaps  by 
this  time  we  should  have  had  reports  made  by 
some  of  the  committees,  and  thij  convention  have 
work  to  occupy  itself  with.  It  appeared  to  him 
that  now  the  wiser  course  would  be  to  refuse  per- 
mission to  the  committee  of  the  whole  to  sit  again. 
This  would  be  bringing  the  whole  matter  direct- 
ly under  the  control  and  direction  of  the  conven- 
tion. The  report  could  be  adopted,  the  commit- 
tees appointed,  and  the  question  referred  forth- 
with, and  then  if  there  were  any  other  subjects 
not  included  in  the  programme,  it  would  be  com- 


>etent  for  any  gentleman  to  offer  new  proposi- 
'ions. 

Mr.  LOOMIS  said  that  it  appeared  to  him  that 
he  time  thus  far  spent  in  committee,  had  not 
>een  mis-spent.  He  thought,  therefore,  it  better 
to  take  the  usual  course,  for  it  would  not  be  a 
misuse  of  time  to  go  into  the  same  discussion  to- 
morrow. In  order  to  arrange  this  matter,  let  us 
take  what  time  was  necessary- — for  it  was  much 
more  important  that  this  thing  should  be  done 
right,  than  that  it  should  be  done  quick. 

Mr.  CHATFIELD  moved  that  the  Convention 
adjourn.  Carried. 


WEDNESDAY,  (9M  day)  June  10. 

Prayer  by  the  Rev.  Mr.  BENEDICT. 

After  a  verbal  correction  of  the  minutes, 

Mr.  CHATFIELD  said  that  he  had  a  propo- 
sition which  he  was  about  to  offer,  and  one  which 

trusted  would  meet  with  general  favor.  This 
was  the  3d  day  of  the  2d  week  of  the  Convention ; 
ndwe  had  made  but  very  little  progress  in  its  busi- 
ness. He  therefore  moved  that  all  previous  orders 
>e  laid  aside,  and  that  the  committee  proceed  to 
the  consideration  at  once  of  the  unfinished  busi- 
ness of  yesterday. 

This  motion  was  agreed  to. 

THE  ARRANGEMENT   OF  COMMITTEES. 

The  PRESIDENT  said  that  when  the  adjourn- 
ment took  place  yesterday,  the  question  before 
;he  house  was  on  granting  leave  to  the  committee 
of  the  whole  to  sit  again. 

Mr.  BERGEN  hoped  that  we  would  not  grant 
the  committee  leave  to  sit  again.  We  had  alrea^ 
dy  consumed  much  time  there  unnecessarily. 
The  work  just  immediately  before  them  could  as 
well  be  done  in  the  Convention  as  in  committee  ; 
and  he  thought  even  a  little  better ;  besides  it 
would  cause  a  great  saving  of  time,  if  they  did 
not  go  again  into  committee  of  the  whole. 

The  question  was  then  taken  on  granting  leave, 
and  lost.  Leave  was  refused — ayes  48,  noes  50. 

Mr.  WARD  then  moved  that  the  committee 
take  up  the  resolutions  (reported  by  the  com- 
mittee of  17,)  separately,  and  agree  to,  or  amend, 
or  reject,  or  present  substitutes  for  them. 

Mr.  MANN  hoped  that  they  would  be  takerf 
up  in  numerical  order,  and  disposed  of  separate- 
ly, as  they  came  up, 

Mr.  TILDEN  hoped  that  the  question  would 
not  be  taken  on  the  resolutions  separately. 

Mr.  NICHOLAS  said  he  thought  that  the  pro- 
per question  before  the  Convention  would  be  on 
adopting  the  report  of  the  special  committee  of 

Mr.  KIRKLAND  said  that  he  was  decidedly 
in  favor  of  the  proposition  of  the  gentleman  from 
New- York  (Mr.  TILDEN).  It  avoided  much  of 
the  unnecessary  verbiage  that  was  contained  in 
the  report  of  the  committee  of  17 — the  repetition 
of  the  words,  "  that  so  much  of  the  Constitution" 
and  "  be  referred  to  a  committee  to  consider  and 
report  thereon."  He  hoped  that  the  Convention 
would  first  take  the  question  upon  that  amend- 
ment to,  or  substitute  for,  the  report  of  the  com- 
mittee. It  contained,  after  all,  the  substance  of 
the  resolutions  reported  by  that  committee, 
whilst  it  avoided  the  constant  repetition  of  those 
points,  which  raised  conscientious  scruples  in 


71 


the  minds  of  many  of  the  members,  about  the 
powers  that  really  Were  conferred  by  the  Consti- 
tution. And  in  the  amendment  or  substitute  of 
the  gentleman  from  New- York,  (Mr.  TILDKN,) 
the  word  "  Constitution,"  by  being  used  in  con- 
nection with  the  word  "subject,"  obviates  all 
the  objections  that  have  been  raised  to  the  origi- 
nal resolutions  of  the  committee  of  17.  He 
hoped  the  committee's  report  would  not  be  con* 
sidered  first;  or  at  least  until  its  phraseology 
Was  changed. 

The  PRESIDENT  said  that  the  question  was 
upon  the  motion  of  the  gentleman  from  West- 
Chester,  (Mr.  WARD).  The  other  Would  not  be 
in  order. 

Mr.  KIRKLAND  asked  if  it  would  not  be  bet- 
ter first  to  adopt  the  phraseology  of  the  gentle- 
man from  New-York  (Mr.  TILDEN)  by  general 
consent,  or  otherwise.  It  would  not  change  the 
subject  of  the  resolutions— they  would  be  greatly 
simplified  thereby — not  at  all  injured-— and  it 
Would  be  much  more  satisfactory  to  have  them 
put  into  that  shape  before  they  proceeded  to 
consider  them. 

The  PRESIDENT  said  that  such  a  motion 
would  not  be  first  in  order. 

Mr.  CHATFIELD  thought  that,  with  all  due 
deference  to  the  Chair,  the  Chair  Was  in  error. 
He  considered  that  the  proposition  of  the  gentle- 
man from  New  York  (Mr.  TILDEN)  was  the  first  in 
order;  and  it  was  neither  the  intention  nor  the 
desire  of  any  gentleman  there  to  ride  over  it.  In- 
deed it  could  not  be  rode  over  unless  by  a  privi- 
leged motion;  and  the  motion  of  the  gentleman 
from  Westchester  Was  not  a  privileged  motion. 
(Mr.  C.  here  read  the  14th  rule,)  and  he  contend- 
ed that  the  motion  of  the  gentleman  from  N.  Y. 
(Mr.  TILDE??,)  having  been  first  in  order  in^com- 
mittee  of  the  whole,  was  first  in  order  in  the 
Convention. 

Mr.  WARD  said  that  it  was  with  very  great  re- 
luctance that  he  should  detain  the  committee  with 
any  remarks  about  rules  and  orders.  But  his 
friend  who  spoke  last,  was  in  error.  We  are  now 
in  the  House.  His  (Mr.  W.'s)  motion  was  the  first 
proposed  in  the  House,  consequently  it  must  be 
the  first  that  can  come  up  for  consideration  in  the 
House;  and  it  certainly,  therefore,  could  not  pos- 
sibly be  affected  by  any  motion  that  had  been 
made  in  committee  of  the  whole.  The  amend- 
ment of  the  gentleman  from  N.  Y.  (Mr.  TILDEN) 
to  have  been  first  in  order  here — to  have  preced- 
ed his  motion,  should  first  have  been  offered  here, 
instead  of  in  committee  of  the  whole.  Besides 
it  was  a  well  known  parliamentary  rule  that  a 
member  may  insist,  at  any  time  in  the  House,  on 
taking  up  the  business  before  it,  precisely  in  the 
order  in  which  it  stands.  It  is  so  in  all  Legisla- 
tures that  he  had  ever  heard  of — it  is  the  prac- 
tice in  Congress,  although  from  courtesy,  it  is 
not  always  strictly  adhered  to  in  the  Senate  of 
the  U.  S.  ^  He  would  not  pertinaciously,  by  any 
means,  insist  upon  the  strictest  adherence  to  thig 
rule.  He  was  desirous  to  accommodate  gentle- 
men— he  would  do  so  at  all  times,  when  vitally 
important  business  was  not  delayed  thereby.— 
The  parliamentary  rule  is,  that  if  you  take  up  a 
bill  you  must  read  the  whole  bill  through  first  in 
committee  of  the  whole  or  in  the  House,  and  af- 
ter that,  take  it  up  by  sections— read  it  by  sec- 


tions, and  so  act  upon  it.  We  are  here  now,  de- 
bating on  the  report  presented  by  the  Chairman 
of  the  committee  of  17.  And  he  had  a  right  to 
demand  that  the  resolutions  appended  to  that  re- 
port should  be  taken  up  and  disposed  of.  He 
would  therefore  assent  to  the  motion  of  his  friend 
from  N.  Y.  on  his  right,  (Mr.  MANT*.)  The 
amendment  of  the  other  gentleman  from  N.  Y. 
would  have  been  right  enough,  and  he  would 
have  had  no  objection  to  have  seen  it  put,  if  it 
had  been  offered  in  the  first  instance.  But  there 
Was  no  necessity  that  these  original  resolutions 
should  assume  at  first  the  phraseology  recomend- 
ed  by  Mr.  TILDEN .  He  was  not  tenacious  about 
it;  but  their  present  form  and  wording  is  the 
same  as  is  pursued  in  all  legislative  bodies, 

Mr.TlLDEN  said  that  the  refusal  to  grant  leave 
for  the  committee  of  the  whole  to  sit  again,  had 
brought  the  subject  into  the  Convention  in  the 
same  state  in  which  it  was  pending  in  committee. 
Under  the  general  parliamentary  law?  the  ques- 
tion would  be  on  the  amendments  adopted  in 
committee,  but  by  a  special  provision  of  our  rules 
amendments  offered  were  for  this  purpose  consi- 
dered as  adopted,  The  first  question  in  the  Con- 
vention, was  on  the  adoption  of  his  amendment, 

Mr.  MURPHY  rose,  but  gave  way  to 

Mr.  WARD,  who  said  that  he  would  not  detain 
the  Convention,  but  he  would  reiterate  the  views 
he  had  just  laid  before  the  Convention,  and  in- 
sist that  his  motion  Was  first  in  order.  He  wish- 
ed that  course  adopted  that  would  secure  a  deci- 
sion on  this  report  as  early  as  possible  ;  and  he 
appealed  to  the  Convention  to  proceed. 

Mr.  MURPHY  said  that  he  was  clearly  of 
opinion  that  the  decision  of  the  Chair  was  right, 
We  had  had  no  report  from  the  committee  of  the 
whole;  we  had  no  cognizance  of  any  business  that 
had  been  transacted  there,  and  consequently  no 
amendments  that  had  been  offered  there  could  be 
considered  as  being  now  before  the  Convention. 
We  have  refused  that  committee  leavelHo  sit 
again;  and  the  first  proposition  therefore  that 
has  been  offered  in  the  house  to-day,  is  the 
first  business  in  order.  But  still  he  hoped  that 
while  the'  gentleman  from  Westchester  (Mr, 
WARD,)  was  right  in  his  position,  he  would  allow 
the  question  to  be  taken  on  the  amendment  of  the 
gentleman  from  New- York  (Mr.  TILDEN).  For 
all  must  admit  that  the  proposition  of  the  latter 
gentleman  though  not  differing  in  substance,  was 
drawn  with  more  art  and  skill  and  was  more  sim- 
ple in  its  construction,  than  the  resolutions  pre- 
sented by  the  committee  of  17.  He  hoped  there- 
fore the  gentleman  from  Westchester  would  allow 
the  gentleman  from  New- York  to  renew  his  pro- 
position. 

Mr.  WARD  said  that  he  would  not  offer  any 
obstruction  to  the  progress  of  the  business  of  the 
Convention  ;  but  as  long  as  we  had  certain  rules 
for  the  guidance  of  the  Convention,  he  hoped 
that  they  would  be  adhered  to. 

Mr.  TILDEN  renewed  his  motion. 

Mr.  JONES  then  moved  his  anjendment^o  the 
amendment»(of  Mr.  TILDEN)  to  insert  after  the 
word  "  Constitution,"  in  that  of  the  original  reso- 
lutions of  the  committee  of  17,  the  words  "and  gov- 
ernment.." No  amendment  was  necessary,  but 
he  deferred  to  the  wishes  of  others.  He  said-  that 
this  committee  had  met  here  to  consider  prima 


72 


rily  the  Constitution  of  the  State,  and  the  best 
practicable  mode  of  proceeding  to  revise  the  same, 
and  he  wished  this  lact  to  appear  plainly  on  the 
face  of  the  resolutions.  The  amendment  of  his 
colleague  seemed  to  make  the  revision  of  the 
Constitution,  a  mere  secondary  matter.  It  pro- 
vided only  for  standing  committees  on  subjects  in 
general.  This  he  was  decidedly  opposed  to.  It 
may  be  said  that  the  difference  here  pointed  out 
is  only  a  mere  matter  of  form  in-  the  wording  of 
the  propositions  ;  but  after  all,  the  whole  was  a 
mere  matter  of  form  ;  and  the  question  was,  which 
is  the  most  important  form  to  be  adopted.  It  was 
certainly  proper  that  that  form  should  be  the 
right  one.  However,  he  was  not  at  all  tenacious 
about  mere  phraseology,  and  should  offer  no  im- 
pediment to  the  progress  of  business. 

The  PRESIDENT  said  that  the  regular  order 
of  parliamentary  proceedings  was,  on  the  intro- 
duction of  a  bill,  to  read  it  over ;  then,  to  take  it  up 
and  read  it  by  sections,  and  propose  amendments 
to  each  particular  section,  and  thus  avoid  confu- 
sion ;  thus  not  confounding  those  things  together 
which  did  not  belong  together.  The  proper  par- 
liamentary cours*  to  be  pursued  here,  would  be 
the  same  as  in  the  action  on  a  bill — to  take  up 
this  report  of  the  committee  of  17,  and  act  upon 
these  resolutions  as  you  ordinarily  would  upon 
the  sections  of  a  bill.  No  amendments  offered  in 
committee  are  now  in  order  ;  but  the  1st  resolu- 
tion is  ;  and,  unless  the  Convention  directs  other- 
wise, (and  the  Convention  unquestionably  has  the 
power  to  do  so,  if  it  thinks  proper,)  the  Chair  will 
take  up  the  1st  resolution  in  the  report  of  the 
committee  of  17.  The  amendment  of  the  gentle- 
man from  New- York,  (Mr.  TILDEN)  and  the 
amendment  to  that  amendment  of  the  gentleman's 
colleague,  (Mr.  JONES)  are,  at  the  present  time, 
both  out  of  order,  in  the  way  in  which  they  were 
offered. 

Mr.  TILDEN  said  that  then  he  should  move 
his  proposition  as  an  amendment  to  the  first  reso- 
lution of  the  committee  of  17.  To  strike  out  the 
words — "  so  much  of  the  Constitution,"  in  the 
beginning  of  the  resolution,  (and  afterwards  in 
each  resolution,)  and  at  the  close  of  it,  the  words 
— "  be  referred  to  a  committee  to  consider  and  re- 
port thereon."  These  separate  questions  on  the 
15  resolutions  could  be  dispensed  with  by  unani- 
mous consent. 

The  PRESIDENT  was  about  to  put  the  ques- 
tion on  this,  when 

Mr.  TILDEN  said  that  the  prefix  must  also  be 
added. 

The  following  is  the  prefix,  and  the  entire  re- 
solution, as  offered  by  Mr.  TILDEN  as  an  amend- 
ment to  the  report  of  the  select  committe  of  17  : — 

Resolved,  That  a  standing  committee  be  appointed  to 
consider  and  report  on  the  following  subjects.and  that  the 
several  parts  of  the  existing  Constitution  which  relates  to 
those  subjects  respectively,  be  also  referred  to  said  com- 
mittees. 

1.  The  apportionment,  election,  tenure  of  office  and  com- 
pensation of  the  Legislature. 

2.  The  powers  and  duties  of  the  Legislature,  except  as  to 
public  debt. 

2.  Canais,  internal  improvements,  public  revenues,  and 
property,  and  public  debt,  and  the  powers  and  duties  of 
the  Legislature  in  reference  thereto. 

4.  The  elective  franchise — the  qualification  to  vote  and 
hold  otiice. 

5.  The  election  or  appointment  of  all  officers  other  than 


legislative  and   judicial,  whose  Duties  and  powers  are  not 
local,  and  their  powers,  duties  and  compensation. 

6.  The    appointment  or   election  of  all  officers    whose 
powers  and  duties  are  local  and  their  tenure  of  office,  du- 
ties and  compensation. 

7.  The  militia  and  military  affairs. 

8.  Official  oaths  and  affirmations,   and  to  oaths  and  affir* 
mations  m  legal  and  equity  proceedings. 

9.  The  judiciary  sjstem'of  the  State. 

10.  The  rights  and  privileges  of  the  citizens  of  this  State. 

11.  Education,   common    schools,   and    the  appropriate 
funds. 

12.  Future  amendments  and  revisions  thereof. 

13.  The    organization  and   powers   of   cities,  Tillages, 
towns,  counties,  and  ether  municipal  corporations;  ami  es- 
pecially their  power  of  aseesment,  taxation,  borrowing 
money,  and  contracting  debts. 

14.  The   currency,  on  banking  business,  and  on   incor* 
porations. 

15.  The  subject  of  the  tenure  of  landed  estates. 

Mr.  MARVIN  was  very  desirous  to  avoid  any 
difficulty  which  he  saw  might  arise  in  this  mat- 
ter ;  this  would  be  done  if  the  gentlemen  from 
New  York,  instead  of  offering  his  proposition  as 
an  amendment,  should  offer  it  as  a  substitute  to 
the  whole,  and  we  should  then  vote  on  the  whole 
of  the  15  resolutions  of  this  committee  of  17.  It 
was  entirely  competent  for  him  to  do  so  ;  and  for 
the  convention  to  entertain  and  pass  upon  the 
same.  If  adopted,  this  substitute  is  before  us  as 
the  ground  work  of  action,  and  would  be  open  to 
any  amendment, 

Mr.  PATTERSON  said  that  much  valuable 
time  would  be  saved,  if  gentlemen  would  but  al- 
low the  question  to  be  taken  on  the  proposition 
of  the  gentleman  from  New  York  first,  although 
it  is  no  better  than  the  plain  one  from  the  com- 
mittee of  17.  (It  was  read  again.)  All  this  talk 
was  idle — it  amounted  to  nothing  ;  we  have  al- 
ready talked  2  or  3  days  upon  this  subject  with- 
out effecting  anything,  and  we  have  only  now 
just  got  back  where  we  started  from.  And  as  to 
the  particular  phraseology  of  the  gentleman  from 
New  York,  if  he  was  so  particularly  tenacious 
about  it  and  will  try  to  stick  it  on,  without  regard 
to  the  waste  of  time  here,  it's  a  great  pity  that  he 
had  not  been  a  member  of  this  committee  of  17, 
where  he  could  have  fixed  it  to  suit  himself.  It  is 
our  duty  to  dispose  of  this  matter  soon  ;  and  we 
had  therefore  better  go  to  work  like  men  of  sense, 
and  settle  it  at  once. 

Mr.  MARVIN  wished  to  take  up  Mr.  TILDEN'S 
proposition  as  a  substitute  for  the  entire  report  of 
the 'committee  of  17,  and  after  adopting  it,  then 
to  vote  such  amendments  as  the  committee  might 
think  proper,  to  each  one  of  the  resolutions  seria- 
tim, from  1  to  15.  The  question  is,  will  the  con- 
vention now  pass  upon  the  entire  substitute. — 
This  proposition  was  judicious  ;  and  it  was  fur- 
ther intended  to  relieve  the  minds  of  gentlemen 
from  the  doubts  they  had  about  the  name  of 
"  the  Constitution"  being  repeated  so  often  in 
the  original  report.  Some  had  thought  that 
the  committee  of  17  intended  by  using  the 
word  "  Constitution"  in  connection  with  the  sev- 
eral resolutions  and  committees,  to  refer  to  those 
committees  the  Constitution  of  the  State. — 
Whereas  many  of  the  subjects  those  resolutions 
proposed  for  consideration  were  not  only  not 
sanctioned  by  the  Constitution,  but  were  not  to 
be  found  in  the  Constitution  at  all.  Therefore 
the  word  "  subject"  had  been  added  in  Mr.  TIL- 
DEN'S  amendment;  besides  by  putting  in  thepe- 


73 


culiar  form  of  prefix  which   he  has,  they  woui 

dispense  with  the  surplusage   and  repetitions  i 

the  original  resolutions.     He  had   no  feeling  i 

the  matter — but  he  wanted  to  get  at  some  definii 

question. 
Mr.  NICOLL  asked  if  the  Chair  decided  M: 

TILDEN'S  proposition  to  be  out  of  order,  as  an  en 

tire  substitute  ? 
The  PRESIDENT  said  that  he  had  so  decided 

the   question  was  on  it  as  an  amendment  to  th 

1st  resolution. 
Mr.  NICOLL  then  moved  to  lay  aside  the  re 

port  of  the  committee  and  to  take  up  Mr.  TIL, 
DEN'S  proposition. 

Mr.  LOOMIS  said  that  he  believed  the  decisio 
of  the  Chair  to  be  right.  The  question,  was,  o 
may  be  put,  on  the  proposition  of  Mr.  TILDEN  as  a: 
amendment  to  the  1st  resolution  of  the  committe 
of  17  ;  and  it  will  perhaps  be  best  to  put  it  in  tha 
way  before  the  Convention  without  further  cere 
mony  ;  and  then  we  can  come  at  once  to  a  direc 
vote  on  it.  This  will  test  the  sense  of  the  Conven 
tion  between  the  two  forms ;  and  settle  the  orde 
of  business  without  any  more  delay.  There  was 
no  difficulty  about  it.  He  had,  as  one  of  the  com 
mittee  of  17,  assented  to  the  report  of  that  com 
mittee ;  but  he  had  entertained  a  preference  then 
in  committee  for  a  proposition  almost  precisely 
similar  to  Mr.  TILDEN'S  ;  and  such  a  one  he  hac 
offered  in  committee ;  but  he  yielded  to  the  wish 
es  of  others  in  that  particular.  Now  that  the  com 
mittee  had  been  discharged  and  the  question  was 
fairly  before  the  Convention,  he  felt  himself  at  ful 
liberty  to  make  these  statements,  and  to  assent  to 
the  substitution  of  his  (Mr.  TILDEN'S)  views,  not- 
withstanding he  had  assented  to  the  report  pre- 
sented originally  by  that  committee.  He  be- 
lieved then  and  believed  now,  that  the  proposition 
(Mr.  TILDEN'S)  is  the  most  simple  form  of  pass- 
ing the  resolution  to  raise  these  committees,  and 
much  the  easiest  to  be  got  along  with. 

Mr.  MORRIS  asked  whether,  if  they  adopted 
the  proposition  of  his  learned  colleague  J.Mr. 
TILDEN)  it  would  be  open  to  amendment  Here- 
after, 

The  PRESIDENT  said  it  would  be. 

The  question  was  on  this  part  of  Mr.  TIL- 
DEN'S proposition  to  amend  the  1st  resolution : — 

"Resolved,  That  standing  committees  be  appointed  to 
consider  and  report  on  the  following  subjects,  and  that  the 
several  parts  of  the  existing  Constitution  which  relates  to 
these  subjects  respectively,  be  al»o  referred  to  said  commit- 
tees:— 

"1.  The  apportionment,  election,  tenure  of  office,  and 
compensation  of  the  Legislature." 

Mr.  MORRIS  said  that  he  most  decidedly  pre- 
ferred the  original  resolution  of  the  committee  of 
17,  to  the  amendment  of  his  learned  colleague, 
(Mr.  TILDEN.)  That  resolution  defined  explicit- 
ly that  there  must  be— and  provided  for  the  ap- 
pointment of — a  separate  standing  committee  for 
each  separate  class  of  subjects ;  but  this  amend- 
ment did  not  provide  therefor.  No  doubt  his  col- 
league might  have  intended  that  there  should  be 
a  separate  committee  for  each  separate  class  of 
subjects ;  but  the  amendment  does  not  provide,  in 
language,  for  a  separate  committee  for  each  dis- 
tinct class  of  subjects.  It  merely  provides  for 
the  appointment  of  standing  committees,  and  does 
not  say  whether  one,  two,  or  more,  should  be 


raised  on  any  subject,  or  whether  two  or  more 
subjects  shall  be  classed  together  and  sent  to  a 
single  committee  ;  and  in  short,  it  is  not  definite 
enough.  As  it  reads  now,  there  might  be  a  doubt 
whether  each  single  subject  mentioned  in  the  re- 
solutions (without  any  reference  to  the  classifi- 
cation) might  not  be  referred  to  a  separate  com- 
mittee, to  consider  and  report  thereon ;  and  thus 
we  would  have  to  raise  above  50  committees. — 
He  would  therefore  move  to  amend  the  prefix  just 
passed,  by  inserting  as  follows  : — 

•Resolved,  That  o  standing  committee  bo  appointed,  to 
consider  and  report  on  each  of  the  following  subjects;  and 
that  the  several  parts,  &c." 

Mr.  TILDEN  said  that  he  had  used  the  precise 
phraseology  of  the  committee,  except  that 'he  had 
struck  out  the  surplusage.  He  certainly,  as 
his  friend  from  New- York  (Mr.  MORRIS)  suggest- 
ed, had  intended  to  have  a  separate  committee 
raised  for  each  class  of  subjects. 

Mr.  MORRIS  said,  so  he  had  supposed ;  but 
his  colleage  (Mr.  TILDEN)  had  struck  out  the 
surplusage,  as  he  termed  it,  and  having  done  so, 
tiad  not  supplied  that  which  made  the  amend- 
ment understandable  or  practicable ;  as  to  the 
raising  of  distinct  committees  on  each  class  of 
subjects.  He  must  therefore  move  to  amend,  as 
he  had  stated. 

Mr,  O'CONOR  thought  that  this  amendment  of 
Mr.  MORRIS,  would  compel  us  to  appoint  a  com- 
mittee on  each  of  the  40  or  50  subjects  named  in 
J;he  resolutions  ;  for  there  were  12  or  15  subjects 
n  some  jpf  the  resolutions. 

The  PRESIDENT,  by  request,  read  Mr.  TIL- 
DEN'S resolution  with  Mr.  MORRIS'  amendment. 

Mr.  TILDEN  begged  leave  to  correct  the  Chair 
and  his  amendment  again. 

The  PRESIDENT  requested  Mr.  TILDEN  to 
tate  his  amendment  and  the  resolution  as  it  would 
ead  when  amended, 

Mr.  TILDEN,  did  so,  and  said  he  did  not  sup- 
lose  it  capable  of  being  misconstrued  or  misun-  ' 
erstood  in  ti.e  manner  feared  by  his  colleague. 

Mr.  MORRIS  repeated  his  proposition,  when 

The  PRESIDENT  asked  Mr.  MORRIS  to  put 
is  resolution. 

Mr.  MORRIS  did  so,  and  said  that  he  would 
ary  it  so  as  to  meet  the  objection  of  his  learned 
olleague,  (Mr.  O'CONNOR)  to  this  effect : 
11  Resolved  that  a  standing  committee  be  appointed  to 
onsider  and  repoit  on  each  of  the  following  CLASSES  OF 
ubjects,"  &c.  &c. 

He  thought  that  would  meet  every  objection, 
nd  embrace  all  that  was  desired. 

Mr.  TILDEN  remarked,  that  the  phraseology 
f  the  resolution  was  the  same  as  the  standing 
ules  of  the  two  houses.  He  read  the  53d  rule  of 
le  Assembly.  The  language  was  well  settled  in 
s  meaning,  and  had  never  given  rise  to  doubts 
s  to  its  construction.  The  amendment  of  his 
olleague  would  not  make  it  more  perspicuous, 
r  definite  ;  but  he  had  no  objection  to  it  if  it 

ere  desired. 

Mr.  MORRIS'  amendment  was  adopted. 

Mr.  MARVIN  hoped  that,  having  disposed  of 
iis  rather  important  point,  the  House  would 
ike  up  the  rest  of  the  resolutions,  and  read 
icm  all  over,  as  was  suggested  by  the  gentleman 
om  Herkimer  (Mr.  HOFFMAN)  and  not  take 
question  separately  on  each  of  these  15 


74 


sub-divisions.  Take  them  up  one  by  one 
now,  amend  them  at  the  time  if  we  think 
proper,  and  so  go  through  them,  and  that  wil 
not  prevent  us  from  afterwards  going  back  to  ei- 
ther of  them,  and  amending  them,  if  that  course 
became  necessary.  He  would  move  that  the  en- 
tire substitute  of  the  gentleman  from  New- York 
(Mr.  TILDEN,)  be  accepted  for  the  report,  to  be 
subject  to  future  amendment ;  as  we  had  already 
tested  the  sense  of  the  house  on  this  point ;  and 
this  would  save  time,  by  bringing  the  whole  sub- 
ject immediately  before  us.  This  would  also 
meet  with  the  views  of  the  gentleman  from  Her- 
kimer  (Mr.  HOFFMAN,)  to  whose  extensive  par 
liamentary  experience  he  (Mr.  MARVIN,)  was 
quite  willing  to  defer  on  all  occasions. 

Mr.  HOFFMAN  said,  that  having  been  refer- 
ed  to  on  this  subject,  he  would  beg  leave  to  say 
a  few  words.  The  practice  which  he  recommen- 
ded the  other  day  in  committee  of  the  whole  was 
the  settled  practice  of  parliamentary  proceedings, 
in  every  legislative  body  in  this  Union,  except  in 
the  legislature  of  this  State — that  is,  the  commit- 
tee of  the  whole,  like  any  other  committee  only 
proceeds  by  way  of  amendment — they  pass  over, 
without  adopting,  propositions  as  they  may  come 
up,  with  or  without  amending  them— and  the  on- 
ly question  to  be  taken  there  is  on  an  amendment. 
But  as  no  final  question  can  be  taken  in  commit- 
tee of  the  whole,  when  we  come  to  report  on  the 
projet,  it  is  perfectly  competent  for  any  member 
to  go  back  to  any  question  proposed  to  be  amen- 
ded, or  to  any  amendment,  and  renew*it ;  and 
thus  a  measure  can  be  passed  amounting  to  what 
is  called  a  substitute  for  the  original  proposition. 
But  no  such  practice  is  ever  adopted  in  the  house, 
in  any  legislative  body.  It  cannot  be  done  here ; 
we  must  consider  the  propositions  in  the  order  in 
which  they  are  presented  here  in  the  house ;  and 
that  was  why  he  had  wanted  all  these  amendments 
perfected  in  committee  of  the  whole,  so  as  to  dis- 
.  entangle  the  question  from  the  perplexity  of  this 
rule ;  but  if  we  were  to  adopt  the  course  proposed, 
we  should  only  be  entangling  that  matter  in 
a  worse  way,  which  it  should  be  our  sole  ob- 
ject to  keep  disentangled,  as  much  as  possible. 
But  the  Convention  having  indulged  in  debate  in 
committee  of  the  whole  some  3  hours  on  one  day, 
and  14  hours  another  day,  he  was  not  disposed  to 
interpose  any  farther  delay  himself,  as  the  House 
had  decided  by  their  vote  not  to  grant  the  com- 
mittee leave  to  sit  again.  He  did  not  want  to  go 
back  again  into  committee  of  the  whole.  The 
House  has  adopted  this  new  proposition  ;  and  we 
must  take  up  the  subjects  one  by  one ;  and  pass 
upon  each,  before  we  proceed  to  another.  And 
gentlemen  will  find  no  serious  difficulty  in  get- 
ting through  with  these  amendments  if  they  will 
only  be  a  little  patient.  But  there  appeared  to 
be  such  an  extreme  anxiety  to  get  on  with  the 
discussion  of  serious  constitutional  legislation; 
while  the  members  were  yet  so  little  disciplined 
to  the  rules  of  their  own  framing,  that  they  could 
scarcely  contrive  to  get  along  with  the  considera- 
tion and  disposition  of  the  primary  order  of  busi- 
ness contained  in  the  report  of  the  committee  of 
17.  And  if  any  other  course  than  that  which  he 
thus  pointed  out,  should  be  pursued,  the  Conven- 
tion would  be  continually  in  a  state  of  entangle- 
ment and  confusion.  Put  the  question  then  on 


these  propositions,  one  by  one,  beginning  with 
the  first ;  and  if  any  meriroer  wishes  to  propose 
an  amendment  to  any  of  these  special  resolutions 
as  they  are  taken  up,  it  will  be  competent  for  him 
to  do  so ;  but  not  to  make  a  motion  to  take  up  in 
the  house,  the  entangled  matter  from  the  commit- 
tee of  the  whole  ;  for  if  we  did  so,  we  should  nev- 
er get  along  with  the  business,  unless  we  sent  it 
back  to  the  committee  of  the  whole,  or  to  a  spe- 
cial committee,  to  disentangle  it.  The  best  plan 
then  would  be  to  take  up  each  proposition  now, 
and  for  members  to  offer  amendments  to  each  as 
they  came  up,  to  suit  themselves  now  in  their  pre- 
sent views,or  to  suit  themselves  prospectively;  and 
the  house  can  dispose  of  them  as  it  sees  fit,  and 
so  we  can  go  through  the  whole  15  resolutions  or 
subdivisions  :  and  if  we  will  only  exercise  a  lit- 
tle patience  and  more  judgment,  we  shall  get 
along  easy  enough. 

Mr.  TILDEN  said  that  as  there  was  no  propo- 
sition of  amendment  to  the  resolution  before  the 
house,  he  hoped  the  question  on  it  would  be  taken 
at  once. 

Mr.  LOOMIS  said  it  was  true  that  the  subject 
was  now  in  the  house  :  but  he  thought  still  that 
we  were  acting  as  if  in  committee  of  the  whole : 
(and  in  this  he  agreed  with  Mr  MARVIN)— we 
ought  therefore  to  follow  the  course  of  the  com- 
mittee of  the  whole,  and  take  up  the  resolutions 
separately,  and  if  amended,  or  not  amended,  lay 
them  aside  to  be  reported  to  the  house.  (Laugh- 
ter.) When  we  had  got  through  if  they  all  agreed 
with  each  other  then  adopt  them. 

The  first  resolution,  or  rather  the  resolve  and 
first  subdivision  (as  given  above)  of  Mr.  TILDEN, 
as  amended  by  Mr.  MORRIS,  was  then  put  and 
adopted. 

The  2d  subdivision  was  then  called  up,  when 

Mr.  TILDEN  moved  to  strike  out  of  the  same 
words  which  had  been  stricken  out  of  the  first 
resolution. 

Mr.  TAYLOR  proposed  that  by  common  con- 
sent fchey  should  consider  Mr.  TILDEN'S  plan  as 
the  one  unanimously  adopted  for  the  action  of  the 
Convention  at  this  time;  and  then  go  on  and  con- 
sider each  proposition  in  it  separately,  amend 
and  adopt  them. 

Mr.  TILDEN  amended  the  2d  to  read  thus:— 

'2.  The  powers  and  duties  of  the  Legislature,  except  as 
to  matters  otherwise  referred." 

This  was  carried. 

Mr.  TILDEN  then  asked  unanimous  consent  to 
amend  all  the  other  resolutions,  so  as  to  conform 
their  phraseology  to  those  adopted.  He  did  so, 
to  avoid  the  necessity  of  taking  a  separate  vote 
on  each,  to  the  same  effect.  The  substance  of  the 
propositions,  remaining  in  the  language  of  the 
committee,  would  be  still  open  to  amendment. 

This  was  agreed  to  by  the  unanimous  consent  of 
the  Convention;  and  TILDEN'S  proposition,  as 
amended  by  MORRIS,  then  stood  before  the  Con- 
vention, as  the  entire  substitute  for  the  original 
report  and  resolutions  of  the  select  committee  of 
17. 

The  3d  subdivision  of  TILDEN'S  resolution  was 
hen  called  up: — 

"3.  Canals,  internal  improvements,  public  revenues,  and 
iroperty ,  and  public  debt,  and  the  powers  and  duties  of  the 
legislature  in  reference  thereto." 

Mr.  O'CONOR  moved  to  amend  this  3d  subdi- 


75 


rision,  by  adding  as  follows: — "And  the  restric- 
tions, if  any,  proper  to  be  imposed  upon  the  ac- 
tion of  the  Legislature  in  making  donations  from 
the  public  funds,  and  in  making  loans  of  the  mo- 

cmlit  of  the  State." 

Mr.  SWACKHAMER  considered  that  this 
ought  to  be  offered  as  a  distinct  proposition,  and 
be  referred  to  a  new  committee. 

Mr.  LOOMIS  said  that  he  had  no  objection  to 
the  principle  of  the  proposed  amendment,  because 
it  embraced  the  language  of  the  resolution  ;  but 
he  objected  that  tautology  and  repetition  would 
be  placed  thereby  in  the  resolution.  The  words 
"  canals,  internal  improvements,  public  revenues 
and  property,  and  public  debt,  and  the  powers 
and  duties  of  the  legislature  in  reference  there- 
to," must  necessarily  imply  the  powers  and  du- 
ties of  the  Legislature  in  reference  to  making 
loans  of  tne  property  and  funds  of  the  State  and 
all  appertaining  to  it.  He  merely  would  add  the 
words,  "and  public  credit"  after  the  word  "debt," 
if  anything  could  be  considered  as  wanting  to 
complete  the  resolution ;  this  would  meet  every 
difficulty.  He  considered  that  the  committee  to 
be  raised  under  this  proposition  was  the  proper 
one  to  take  charge  of  all  these  matters  j  and  he 
did  not  think  it  necessary  to  raise  a  separate  com- 
mittee to  consider  the  proposition  which  had  been 
submitted  here  in  relation  to  loaning  the  credit  of 
the  State  to  corporations  or  to  individuals ;  the 
power  of  the  legislature  to  do  this  has  been  fully 
discussed  and  disposed  of  by  the  people  all  over 
this  State.  The  day  for  that  had  gone  by  !  All 
parties  in  the  state  are  now  opposed  to  it.  Such 
a  proposition  as  that  could  find  no  favor  in  this 
Convention.  All  parties  in,  and  sections  of,  the 
State  have  so  distinctly  and  unhesitatingly  con- 
demned it,  that  it  is  not  necessary  for  us  to  raise 
a  separate  committee  to  consider  it.  The  entire 
question  of  the  public  debt,  in  all  its  ramifications 
was  embraced  in  the  third  sub-division,  as  he 
thought ;  and  if  he  voted  against  Mr.  O'CONOR'S 
amendment  it  was  not  because  he  desired  to  raise 
a  separate  committee  on  that  point,  but  because 
he  did  not  think  the  amendment  necessary.  He 
was  against  all  these  various  ways  of  loaning  the 
public  money  and  these  credits  from  first  to  last. 
And  he  would  move  to  add  merely  the  words 
"  public  credit,"  as  he  had  before  suggested. 

Mr.  TOWNSEND  said  that  he  did  not  consider 
the  amendment  of  his  colleague  (Mr.  O'CONNOR) 
as  at  all  necessary.  For  one  he  held  that  the  Le- 
gislature should  possess  no  power  other  than  that 
expressly  delegated.  Under  this  view  he  con- 
sidered the  action  of  those  committees  that  were 
to  be  raised  to  carry  out  the  principle  of  leaving 
to  the  towns,  cities  and  counties  much  of  the  le- 
gislation that  had  been  heretofore  used  by  if  not 
delegated  to  the  legislature,  of  the  greatest  im- 
portance, and  that  until  we  had  the  views  of  those 
committees  upon  this  point,  little  essential  pro- 
gress could  be  made  in  knowing  what  remaining 
powers  the  legislature  need  be  invested  with  in 
order  to  carry  on  properly  the  business  of  the 
State.  Some  would  require  that  there  should  be 
placed  in  the  Constitution  the  specified  clause  of 
granting  all  the  necessary  and  proper  powers  to 
carry  out  the  objects  of  the  government  .in  one 
section,  but  he  would  prefer  to  first  endeavor  to 
delegate  expressly  those  powers  that  were  deem- 


ed necessary  and  if  after  experience  should  show 
that  more  were  needed,  then  under  the  provisions 
for  amendment,  the  additional  powers  might  be 
granted. 

Mr.  RHOADES  was  pleased  with  the  proposi- 
tion of  the  gentleman  from  New-York.  He  was 
willing  to  see  these  propositions  loaded  with  spe- 
cifications, even  to  tautology,  as  it  would  obviate 
the  necessity  of  offering  separate  resolutions  to 
instruct  committees  to  the  consideration  of  par- 
ticular subjects.  He  saw  no  danger  in  proposing 
such  specific  and  distinct  specifications  to  any  pro- 
position, as  might  suggest  themselves  to  the  minds 
of  members.  These  propositions,  if  adopted,  were 
merely  for  our  own  convenience,  to  guide  and  di- 
rect our  deliberations,  and  when  we  have  done 
with  them;  are  of  no  use  to  any  future  body.  And 
it  is  unnecessary  then  to  waste  time  in  criticism 
on  the  precise  words  and  manner  in  which  the 
propositions  were  drawn.  They  are  sufficient  for 
our  purpose,  if  all  the  objects  of  Constitutional 
Reform,  in  the  minds  of  the  members  of  this  Con- 
vention, are  brought  before  these  committees. — 
And  as  it  was  obvious  that  that  they  ought  all  to 
be  brought  before  the  committees,  he  hoped  the 
amendment  would  succeed. 

Mr.  TILDEN  hoped  the  amendment  would  be 
adopted,  as  there  were  a  number  of  intelligent 
gentlemen  who  had  expressed  doubts  as  to  wheth- 
er this  matter  was  contained  in  the  original  reso- 
lution. He  had  no  doubt  about  it  himself,  and 
he  thought  none  ought  to  be  left  by  the  discussion 
which  arose  yesterday. 

The  amendment  was  then  adopted. 

The  PRESIDENT  stated  the  question  to  be  on 
the  3rd  resolution,  as  amended. 

Mr.  STOW  moved  to  strike  out  the  3rd  resolu- 
tion. 

Mr.  TILDEN  suggested  that  this  object  could 
be  attained  by  voting  down  the  resolution — the 
question  now  being  on  its  adoption. 

_Mr.  STOW  had  understood  that  the  resolution 
had  b'een  already  adopted. 

The  PRESIDENT  said  that  it  had  not  been 
adopted. 

Mr.  STOW  was  entirely  immaterial  as  to  the 
form  so  long  as  the  substance  of  his  motion  was 
contained  in  it.  It  was  with  great  reluctance 
that  he  rose  to  take  a  part  in  the  debates  of  the 
Convention  at  this  early  period  of  the  session, 
unaccustomed  as  he  was  to  speaking.  He  regret- 
ed  that  he  felt  compelled  in  this  instance  to  take 
part  on  the  discussion  of  these  matters,  but  as  he 
deemed  them  essential  in  their  substance,  he  un- 
willingly did  so.  It  was  with  somewhat  of  grief 
that  he  found  himself  differing  very  essentially 
in  the  views  he  entertained,  from  the  respectable 
committee  of  1 7,  and  indeed  differing  from  all 
that  he  had  heard  expressed.  But  he  had  this 
consolation,  the  rule  was  sustained  by  authority, 
he  would  be  pardoned  in  saying,  quite  as  respecta- 
ble as  any  committee  of  the  house ;  the  proceedings 
of  the  Convention  of  1821.  The  committee  in  their 
resolutions  differ  essentially  from  the  proceedings 
of  that  Convention,  and  he  trusted  he  would  be 
pardoned  in  saying,  had  been  inconsistent  with 
themselves.  How  so  ?  The  Convention  of  1821 
put  the  entire  legislative  departments  together — 
this  committee  proposed  to  separate  them — to 
subdivide  them,  and  thereby  they  essentially  dif- 


76 


fered  from  what  was  deemed  expedient  in  the 
last  Convention.  As  he  said  before,  they  had 
been  inconsistent  with  themselves.  How  so  ? 
The  committee  on  looking  at  the  Constitution, 
undoubtedly  undertook,  in  the  first  place,  to  con- 
template the  great  and  essential  purposes  of  gov- 
ernment. They  saw  all  governments  naturally 
and  necessarily  divided  into  Executive,  legisla- 
tive, and  judicial  departments.  Now  then,  when 
they  came  to  the  consideration  of  the  Executive 
department,  they  had  said,  substantially,  we  do 
not  deem  in  point  of  principle,  it  is  advisable  to 
subdivide  the  question,  so  that  the  tenure  of  of- 
fice, his  compensation,  or  his  relation  to  the  le- 
gislative authority,  should  be  placed  in  sepa- 
rate and  distinct  hands.  On  the  contrary,  they 
said  it  was  not  safe  so  to  divide  one  of  the  great 
elements,  if  he  might  be  allowed  the  expression, 
of  government.  The  same  they  said  in  re- 
gard to  the  Judiciary,  by  putting  the  whole  sub- 
ject together — the  jurisdiction  of  the  courts,  the 
selection  of  judges,  their  compensation  and 
tenure  of  office.  He  agreed  with  the  committee 
in  relation  to  the  executive,  and  also  in  the 
view  they  had  taken  of  the  Judiciary ;  but  he 
thought  they  had  departed  from  the  principle 
they  had  thus  laid  down  in  their  action  in 
regard  to  the  Legislative  department.  In  his 
view,  it  was  just  as  essential,  nay,  more  so, 
that  the  Legislative  department  should  go  to 
one  committee.  How  so  ?  It  would  he 
said,  perhaps  that  the  powers  and  duties  are 
multifarious,  and  that  there  are  a  vast  number  of 
subjects  upon  which  the  Legislature  must  have 
authority  to  act.  Concede  this  to  be  true,  and  for 
that  very  reason — because  tbey  are  so  multifari- 
ous, he  would  have  them  referred  to  one  com- 
mittee, and  avoid  the  reference  to  separate  com- 
mittees. It  was  for  this  very  reason,  when 
subjects  were  multifarious,  that  committees  here 
were  appointed  to  arrange  them.  Let  them 
come  before  us  in  a  systematic  form.  So 
in  this  matter,  he  would  have  but  one  committee. 
With  one  committee  entrusted  with  the  duties 
and  powers  of  the  legislature — and  another  with 
the  restrictions  on  those  duties  and  powers,  how 
would  it  practically  work?  He  would  appeal  to 
all  experience  on  this  subject.  In  one  report  the 
legislature  would  be  possessed  of  a  certain  power, 
which  in  the  other  it  would  not — and  thus  would 
clashing  and  conflicting  reports  be  received.  He 
would  submit  also  that  it  was  impossible  for  the 
committees  intimated  in  the  2d  resolution  to  act 
wisely  or  prudently,  without  having  cognizance 
of  the  subjects  referred  to  in  the  3d  resolution. 
He  would  endeavor  to  illustrate:  He  supposed 
that  the  first  and  perhaps  the  most  obvious  propo- 
sition for  the  committee  under  the  2d  resolution 
to  take  under  consideration,  would  be,  to  what 
extent,  or  rather,  how  long  the  members  of  the 
Legislature  should  hold  their  office — or  what 
powers  should  be  vested  in  that  particular 
department  of  the  government.  Suppose  it 
were  the  peculiar  duty  and  province  of  another 
committee,  for  instance,  to  determine  whether 
the  veto  power  should  be  qualified.  Now, 
then,  he  would  ask  how  it  was  possible  for  the 
one  to  determine  whether  they  should  restrict, 
enlarge,  or  entirely  abolish  the  veto  power,  un- 
less they  know  whether  the  legislature  is  going 


to  be  invested  with  that  power.  The  subject 
ought  to  be  considered  in  Shother  point  of  view. 
He  submitted  that  it  would'be  found  entirely  im- 
practicable to  refer  to  the  several  committees  dif- 
ferent branches  of  the  same  subject,  as  it  had 
been  found  impossible  for  this  house  to  do,  and  as 
had  already  been  made  manifest  in  the.  fact  that 
gentlemen  had  expressed  doubts  as  to  understand- 
ing now  whether  certain  subjects  or  limi- 
tations were  in  the  resolutions  or  not.  If 
this  was  so  now,  what  would  it  be  by  and  by, 
when  every  gentleman  came  to  propose  his  own 
peculiar  ideas  for  the  consideration  of  the  house. 
He  would  now  submit  by  way  of  illustration  anoth- 
er case  :  Suppose  he  (Mr.  S.)  should  propose 
that  the  present  restriction  in  the  Constitution 
upon  the  power  of  the  legislature  to  grant  lotte- 
ries should  be  continued,  to  which  committee 
ought  it  Jo  be  referred  ?  He  knew  gentleman 
would  say,  that  relating  to  the  revenu*  depart- 
ment, it  therefore  naturally  ought  to  go  to  that 
committee.  He  would  submit  that  so  far  as  the 
prohibition  of  lotteries  was  concerned,  it  was 
much  more  political,  more  a  matter  of  police  than 
of  revenue,  and  it  was  so  understood  by  the  last 
Convention.  It  was  a  matter  of  morals  rather 
than  of  finance.  He  used  this  by  way  of  il- 
lustration. Suppose  also  that  he  introduced 
a  resolution  into  the  Convention  prohibit- 
ing the  sale  of  the  products  of  State  Prison 
labor  except  by  auction ;  to  which  committee 
would  it  belong  ?  Would  it  not  be  to  the  com- 
mittee on  the  revenue  ?  And  yet  after  all  it  ap- 
pertained solely  to  State  Prison  discipline  and  the 
general  policy  of  the  State  prison.  He  could  il- 
lustrate further  the  difficulty  that  would  arise  un- 
der an  arrangement  so  essentially  and  palpably 
wrong.  The  legislative  powers  could  not  be  di- 
vided in  this  manner,  for  they  were  not  suscepti- 
ble of  it.  We  might  as  well  attempt  to  create  sep- 
arate legislatures,  as  to  cut  up  and  subdivide  these 
committees — giving  to  one  one  power,  to  another 
another,  and  to  a  third  a  third — and  all  parts  of 
one  great  whole.  The  only  safe  and  prudent 
course  was  to  submit  the  entire  range  of  subjects 
relating  to  the  legislature  to  one  committee.  Then 
whenever  they  contemplated  one  subject  of  po- 
wer, they  would  have  before  them  all  the  others, 
and  could  consider  the  proper  position  of  each  to 
the  other,  and  each  to  all.  These  were  his  views, 
and  he  must  again  express  his  regret  at  differing 
with  the  committee,  and  at  being  compelled  to 
take  part  in  the  debates  at  so  early  a  day. 

The  PRESIDENT  stated  the  question  to  be  on 
striking  out  the  3d  resolution. 

Mr.  LOOMIS  said  that  there  were  a  large  num- 
ber of  these  propositions  that  related  to  the  pow- 
ers and  duties  of  the  legislature,  and  the  gentle- 
man who  last  addressed  the  house  would  perceive 
that  if  the  whole  subject  is  referred  to  one  com- 
mittee, it  would  devolve  upon  it  the  details  of 
two-thirds  of  the  business  of  the  Convention. 
He  understood  the  gentleman's  argument  to 
be  that  it  would  be  difficult  for  the  committee 
to  divide  the  subjects  at  all — to  define  the 
difference  between  them.  There  might  be  points 
where  it  would  be  very  questionable  to  which 
department  it  should  belong.  The  powers  of  the 
legislature  extended  to  the  judiciary  and  the  re- 
gulation of  its  proceedings.  The  regulation  of 


77 


the  common  schools  belonged  to  the  legislative 
department — the  organization  of  cities  and  vil- 
lages— the  regulation  of  the  currency  and  bank- 
ing business — the  matter  of  the  tenure  of  landed 
estates — all  belonged  there.  These  committees 
might  possibly,  two  or  more  of  them  will  perhaps, 
embrace  in  their  reports  the  same  subject  matter. 
It  was  very  possible  that  it  may  be  difficult  for 
those  bodies  to  confine  themselves  to  their  own 
jurisdiction  of  the  matter,  because  observation 
shows  that  all  bodies  to  whom  belong  power  are 
apt  to  extend  their  jurisdiction,  and  therefore 
probably  two  of  them  will  report  propositions  on 
the  same  subject;  but  if  they  did  there  would  only 
be  two  instead  of  one,  and  if  they  are  conflicting, 
the  Convention  would  be  surely  not  less  likely  to 
be  embarrassed  than  if  there  was  but  one,  and  not 
less  likely  to  arrive  at  correct  conclusions.  It 
appeared  to  him  that  there  was  the  utmost  ne- 
cessity for  dividing  up  these  subjects.  He  was 
not  strenuous  as  to  the  peculiar  form,  but  those 
reported  by  the  committee  appeared  to  offer  the 
most  natural  divisions. 

The  motion  to  strike  out  was  rejected. 

Mr.  SHEPARD  moved  an  amendment  to  the 
3d  resolution.  To  insert  after  the  words  "  pub- 
lic revenues"  in  the  4th  line  "  and  the  safe  keep- 
ing and  disbursement  thereof."  Mr.  S.  wished 
to  say  one  word  in  favor  of  the  proposition.  He 
certainly  should  not  have  claimed  for  it  the  atten- 
tion of  the  Convention,  had  he  not  deemed  it  one 
of  considerable  importance.  He  did  not  know 
how  it  might  be  with  gentlemen  who  represented 
other  parts  of  the  State,  but  in  the  city  of  New- 
York,  there  is  a  clear,  distinct,  and  decided  feel- 
ing upon  this  proposition.  Its  signification  is 
distinctly  understood,  and  its  purposes  are  clear- 
ly sought  to  be  achieved  When  he  heard  it  sug- 
gested that  it  was  desirable  that  the  propositions 
of  every  delegate  should  go  to  this  committee,  and 
that  it  We-  •?  rather  better  to  risk  the  evil,  if  evil 
it  could  be  called,  of  surplusage,  than  that  any 
proposition  should  be  shut  out.  It  struck  him 
that  it  was  perfectly  proper  to  send  up  the  prop- 
osition which  he  had.  It  was  very  clear,  that  in 
the  signification  of  the  terms  of  the  3d  proposi- 
tion this  point  was  not  embraced;  and  as  it 
was  desired  by  a  large  portion  of  the  State,  he 
should  propose,  at  all  events,  that  it  should  be 
considered  by  the  committee.  And  it  was  for 
the  purpose  of  procuring  the  consideration  and 
judgment  of  the  committee  and  thg  Convention 
upon  the  subject,  that  he  submitted  it. 

Mr.  TOWNSEND  said  that  if  the  proposition 
suggested  by  his  colleague  was  not  comprehend- 
ed in  the  words  at  present  used  in  the  3rd  reso- 
lution, he  was  certainly  in  favor  of  inserting  it, 
or  whether  it  was  there  or  not — in  order  to  make 
the  thing  more  certain,  and  definite  beyond  per- 
adventure.  He  most  cheerfully  sustained  and 
concurred  fully  in  what  his  colleague  remarked 
in  reference  to  the  fixed  public  sentiment  in  the 
city,  and  from  the  tone  of  the  public  press  in  the 
interior  of  the  State,  he  had  supposed  the  neces- 
sity for  some  such  constitutional  provision  had 
become  apparent  in  the  minds  of  unprejudiced 
men  of  all  parties  throughout  the  State.  Cer- 
tainly the  connection  of  the  banks  and  the  govern- 
ment had  involved  a  loss  of  half  a  million  of  dol- 
lars upon  the  people,  and  they  required  addi- 


tional safeguards  to  be  thrown  around  the  offi- 
cers and  the  banking  institutions  of  the  State. 

Mr.  WORDEN  _said  that  before  he  was  called 
upon  to  vote  on  this  resolution,  he  would  be  very 
glad  if  the  gentleman  from  New  York  (Mr.  SHEP- 
ARD) would  define  its  meaning.  It  seemed  to  him 
now  to  be  perfectly  unintelligible,  or  to  say  the 
least,  without  any  meaning  whatever.  He  would 
enquire  of  that  gentleman  if  he  supposed  there 
was  to  be  no  power  vested  in  the  legislature  in 
regard  to  the  safe  keeping  or  disbursement  of  the 
public  revenue — or  if  he  deemed  it  necessary  that 
this  Convention  should  frame  a  special  clause  in 
order  to  confer  the  power  on  the  legislature.  If 
the  gentleman  had  that  idea,  it  certainly  was  not  an 
enlightened  notion  of  legislative  power ;  if  he  sup- 
posed that  this  Convention  would  adopt  a  rule  un- 
der which  for  all  time  to  come,  the  public  means 
and  revenues  of  the  State  were  to  be  governed  and 
controlled.  He  wished  the  gentleman  would  bring 
forward  his  proposition  somewhat  more  definitely 
and  clearly,  than  it  was  contained  in  this  abstrac- 
tion sent  to  the  chair.  That  proposition  in  his 
judgment  had  no  meaning  or  intelligence  of  pur- 
pose. If  as  he  said  before,  it  was  a  proposition 
that  we  should  adopt  a  rule  and  a  constitutional 
provision  which  was  to  govern  in  this  respect  and 
specify  legislative  power,  he  should  like  to  see  it 
submitted  in  some  tangible  shape  or  manner  by 
which  he  could  infer  that  such  was  its  design. 

Mr.  SHEPARD  did  not  entertain  any  such  ab- 
surd notion  as  that  the  same  Constitution  which 
creates  the  legislature — which  gives  to  it  power 
to  draw  from  the  people  all  the  revenues  ne- 
cessary to  conduct  the  government,  would  not 
give  by  implication,  if  not  in  express  terms,  it 
the  power  of  keeping  those  revenues  and  disburs- 
ing them.  He  supposed  that  the  power  to  col- 
lect fully  implied  the  power  to  keep  and  disburse. 
It  was  not  then  for  the  purpose  of  conferring  any 
new  and  unheard  of  power  upon  the  legislature 
that  he  offered  the  amendment  to  the  3d  resolu- 
tion. He  did  suppose,  and  he  said  this  in  answer 
to  the  gentleman,  that  within  the  last  ten  years 
some  change  in  the  public  opinion  might  have 
taken  place  in  regard  to  the  mode  of  safe  keeping 
and  disbursement  of  the  public  money.  He 
did  suppose  that  a  clear  and  decided  opinion  was 
entertained  by  a  large  and  respectable  number  of 
the  voters  of  the  State,  upon  the  subject  and  that 
a  reference  to  this  committee  directing  them  spe- 
cifically to  turn  their  attention  to  the  question, 
would  lead  them  to  examine  the  propositions  that 
might  be  offered  by  any  large  number  of  individ- 
uals in  the  State.  It  was  not  so  much  for  the 
purpose  of  instructing  the  committee  to  report 
any  plan  that  he  offered  the  amendment,  as  it  was 
for  the  purpose  of  calling  their  attention  expli- 
citly and  in  distinct  terms  to  the  subject,  in  order 
that  it  should  not  be  forgotten  amidst  the  multi- 
plicity of  labors ;  for  these  committees  were 
charged  with  a  vast  amount  of  labor.  The  third 
proposition,  includes  in  many  respects  the  most 
important  features  of  government,  and  he  was  de- 
sirous amidst  the  consideration  of  all  those  great 
questions  that  this  peculiar  one  should  not  be  lost 
sight  of.  The  gentleman  complained  that  the 
proposition  was  put  in  an  abstract  form.  That 
was  precisely  what  it  ought  to  have  been.— 
He  did  not  desire  to  instruct  the  com- 


78 


mitee  to  do  any  particular  thing — not  even 
to  express  their  views  on  the  subject — because 
they  were  not  discussing  substantial  principles, 
but  mere  questions  of  the  order  and  the  distribu- 
tion of  business.  He  desired  therefore  that  they 
should  go  to  them  in  an  abstract  form,  in  order 
that  they  should  be  untramelled,  and  report  their 
best  judgment  upon  the  proposition.  He  would 
add  this  other  consideration,  and  he  did  so  also 
from  motives  of  delicacy  towards  any  and  all  who 
might  differ  from  him  in  opinion  on  this  subject. 
The  gentleman  from  Ontario  knew  that  this  was 
a  matter  that  must  be  considered  in  some  com- 
mittee. Where  then  was  the  harm  in  naming  it? 
if  even  as  a  mere  matter  of  personal  gratification 
to  a  single  member  of  the  Convention;  being  one 
of  those  things  that  we  must  examine,  there  was 
clearly  no  impropriety  in  making  the  reference. 
Therefore  he  said  again  to  the  gentleman  from 
Ontario,  that  in  the  first  place  he  put  it  in  an  ab- 
stract form  to  avoid  any  appearance  of  instruc- 
tions ;  in  the  second  place  to  avoid  any  indelicate 
expression  of  opinion  on  his  own  part,  and  in  the 
third,  because  these  propositions  merely  related  to 
the  distribution  ot  business,  and  it  was  desirable 
to  frame  such  as  would  be  comprehensive  enough 
to  include  any  and  every  shade  of  opinion  that 
might  be  entertained  on  subjects.  He  hoped  the 
explanation  was  satisfactory. 

Tho  question  was  then  taken  on  the  amend- 
ments, and  a  count  being  ordered,  39  members 
rose  in  favor,  and  41  against  it — and  so  it  was 
lost. 

The  3d  proposition,  as  amended,  was  then 
agreed  to  nem.  con. 

The  4th  proposition  was  then  read  as  follows  : 

4.  The  Elective  iranchise— the  qualification  to  vote  and 
hold  office. 

It  was  adopted. 

Mr.  CHATFIELD  proposed  to  insert  after  the 
4th,  a  distinct  proposition,  to  come  in  as  the  5th, 
relating  to  the  Executive  department,  as  follows  : 

5.  The  election,  tenure  of  office,  compensation,  power 
and  duties,  except  the  power  to  appoint  or  nominate  to  of- 
lice,  of  the  Governor  and  Lieutenant  Governor. 

He  believed  the  subject  of  sufficient  importance 
to  warrant  the  proceedings  of  a  distinct  commit- 
tee, rather  than  to  leave  it  as  some  seemed  to 
suppose,  to  a  sort  of  omnium  gather um>  where 
all  the  subjects  were  grouped  together. 

The  proposition  was  agreed  to.  This,  of  course, 
changed  the  numbers  of  the  remaining  resolu- 
tions. 

Mr.  KIRKLAND  suggested  that  the  6th  reso- 
lution should  be  amended  so  as  to  conform  to  this 
change. 

Mr.  CHATFIELD  moved  to  add  after  the 
words  "  legislature  and  judicial,"  the  words 
"  governor  and  lieutenant  governor,"  which 
would  make  it  correspond  with  the  preceding  re- 
solution. 

Mr.  WORDEN  wished  to  make  a  suggestion  to 
the  gentleman  from  Otsego.  That  he  would  wait 
until  the  resolutions  were  gone  through  with, 
and  then  submit  in  a  substantial  form  the  speci- 
fication in  relation  to  the  Executive  department. 

Mr.  CHATFIELD  said  that  such  was  his  first 
view,  and  he  had  drawn  a  proposition  for  that 


purpose.     He  thought,  however,  the  object  could 
be  attained  by  the  course  ritew  adopted. 

The  resolution  as  amended  was  adopted — as 
follows : 

5.  The  election  or  appointment  of  all  officers  other  than 
Legislative  and  Judicial,  and  the  Governor  and  Lieutenant 
Governor,  whose  duties  and  powers  are  not  local,  and 
their  powers,  duties  and  compensation. 

The  7th  resolution  was  then  read  as  follows  : 

7.  The  appointment  or  election  of  all  officers  whose  pow  - 
ers  and  duties  are  local,  and  their  tenure  of  office,  duties 
and  compensation. 

Mr.  TILDEN  wished  to  make  two  verbal  a- 
mendments  to  correct  what  was  clearly  a  cleri- 
cal error.  After  the  word  "  office"  to  insert  the 
word  "  powers,"  and  to  substitute  for  the  words 
"  powers  and  duties"  in  the  first  and  second  line 
the  word  '"functions." 

There  was  no  objection,  and  the  resolution  as 
amended  was  agreed  to. 

The  8th  resolution  was  then  read — as  follows ; 

8.  The  militia  and  military  aflairs. 
It  was  agreed  to. 

The  9th  was  then  read,  as  follows : — 

9.  Official  oaths  and  affirmations,  and  oaths  and  affirma- 
ions  in  legal  and  equity  proceedings. 

Mr.  NICHOL  moved  to  insert  after  the  word 
"  affirmations"  the  words  "  and  competency  of 
witnesses."  This  was  agreed  to  and  the  resolu- 
tion thus  amended  was  adopted. 

The  llth  resolution  was  then  read  as  follows : 

10.  The  Judiciary  system  of  the  State. 

Mr.TlLDEN  moved  to  strike  out  the  words  "sys- 
tem of  the  State,"  as  a  number  of  gentlemen  had 
supposed  that  it  might  restrict  the  committee  to 
the  consideration  of  the  present  system.  This 
was  agreed  to. 

Mr.  BASCOM  moved  to  add — 
"And  the  appointment  and  election  of  judicial  officers 
and  their  tenure  of  office.". 

If  he  mistook  not,  there  was  no  proposition  that 
provided  for  the  consideration  of  the  question  sug- 
gested in  his  amendment. 

Mr.  JONES  thought  the  amendment  a  very  pro- 
per one,  for  as  the  gentleman  stated  this  peculiar 
matter  was  not  expressly  stated  in  the  proposition. 

Mr.  CHATFIELD  suggested  the  insertion,  af- 
ter the  word  "  duties,"  in  the  amendment,  of  the 
words  "  and  compensation." 

This  was  accepted  by  Mr.  B.  and  the  amend- 
ment, and  the  resolution  as  amended,  adopted. 

The  llth  resolution  was  then  read,  as  follows: 

11.  The  rights  and  privileges  of  citizpns  ol  this  State. 
Mr.  KENNEDY  said  it  would  probably  be  as 

well,  while  making  provision  for  persons,  citi- 
zens of  this  State,  to  make  provision  for  those 
who  were  not,  either  in  the  Constitution,  or  to 
give  the  power  to  the  Legislature,  if  it  were  not 
there  already  ;  to  protect  foreign  witnesses,  for  in- 
stance. It  was  the  usual  practice  now  to  incar- 
cerate them  if  they  did  not  happen  to  have 
friends.  There  were  quite  a  number  of  them  in 
the  New  York  city  prisons,  who  were  witnesses 
in  cases  of  assaults  at  sea.  The  parties  being 
seafaring  men,  had  attended  to  their  usual  voca- 
tion, and  left  the  witnesses  in  jail  until  their  re- 
turn. He  would  propose  an  amendment  himself 
if  he  had  it  prepared. 
Mr.  BASCOM  said  the  gentleman  could  at- 


79 


tain  his  object  by  adding  the  words  after  the 
word  "citizen,"  "and  persons  within  the  jurisdic- 
tion" of  this  State. 

Mr.  MORRIS  did  not  understand  these  resolu- 
tions as  embracing  every  thing  that  was  to  be 
sent  to  the  committees.  He  considered  them 
merely  as  forming  committees  to  which  gentle- 
men might  send  any  proposition  that  was  thought 
proper  to  be  considered.  Instead  of  amending 
these  resolutions,  when  the  propositions  were 
made,  send  them  to  the  committees.  Now,  to  ex- 
plain himself,  he  intended  offering  a  proposition 
that  the  rights  of  married  women  to  the  enjoy- 
ment and  control  of  their  individual  property, 
should  be  considered  by  this  Convention.  When 
he  introduced  it,  he  should  ask  to  have  it  referred 
to  the  committee  on  the  rights  and  privileges  of 
the  citizens.  He  would  suggest  to  his  learned 
colleague,  the  adoption  of  a  similar  course. 

Mr.  KENNEDY  withdrew  his  resolution. 

The  amendment  of  Mr.  BASCOM,  and  the  reso- 
lution as  amended  was  then  adopted. 

The  12th  and  13th  resolutions  were  then  read 
and  adopted — as  follows  : 

12.  Education,  common    schools,  and  the  appropriate 
funds. 

13.  Future  amendments  and  revisions  of  the  Constitu 
tion. 

The  14th  resolution  was  then  read — as  follows : 

14.  The  organization   and  powers  of  cities,  villages, 
towns,  counties,  and  other  municipal  corporations;  and 
especially  their  power  of  assessment,  taxation,  borrowing 
money,  and  contracting  debt.  • 

Mr.  BAKER  wished  to  call  the  attention  of  the 
Convention  to  the  fact  that  there  was  in  this  and 
in  the  proposition  originally  introduced  as  the  6th, 
(numbered  7,)  a  double  reference.  The  point 
was,  that  the  duties  of  all  local  officers  are  in- 
volved in  the  6th  resolution,  and  again  in  the  one 
under  consideration.  If  he  was  correct,  the  error 
might  be  avoided,  by  amending  the  proposition, 
by  inserting  after  the  word  "  corporations,"  "  in- 
cluding their  power  of  legislating  on  local  sub- 
jects." 

Mr.  RUSSELL  before  the  amendment  was  put 
desired  to  offer  a  distinct  proposition.  First,  to 
confine  the  attention  of  the  committee  to  the  pow- 
ers of  those  quasi  corporations  as  they  were  call- 
ed, of  cities,  villages,  towns,  and  counties  ;  and  to 
constitute  a  second  committee  whose  duty  should 
be  confined  exclusively  to  the  municipal  corpo- 
rations created  by  legislative  charters.  Towns 
and  counties  were  common  law  corporations.  It 
appeared  to  him  after  listening  to  the  eloquent 
remarks  of  the  gentleman  from  Kings  (Mr.  MUR- 
PHY) the  other  day,  that  the  subject  of  municipal 
corporations,  particularly  cities,  was  a  great  one, 
and  afforded  a  large  field  for  the  individual  labors 
of  a  separate  committee.  He  merely  threw  out 
these  suggestions  and  he  hoped  that  gentlemen  of 
the  cities,  would  suggest  an  appropriate  commit- 
mittee.  He  would  have  offered  an  amendment  to 
this  effect,  but  he  desired  not  to  do  so  unless 
those  interested  saw  its  fitness. 

Mr.  TOWNSEND  would  send  up  an  amend- 
ment hastily  prepared,  subdividing  the  resolu- 
tion, and  raising  three  committees  on  the  sub- 
ject. 

Mr.  JONES  suggested  that  the  amendment  of 
Mr.  BAKER,  if  necessary  at  all,  would  be  more 


properly  made  to  the  7th  resolution.  He  sup- 
posed that  its  object  was  already  accomplished  by 
what  was  contained  in  the  7th  resolution,  and  he 
would  suggest  that  this  14th  resolution  should  be 
confined,  as  indicated  by  Mr.  RUSSELL,  to  cities 
and  villages  entirely.  Towns  and  counties  were 
already  provided  for  in  the  7th  resolution.  It 
embraced  all  the  local  officers,  their  powers,  du- 
ties and  compensation.  He  would  suggest  there- 
fore that  the  gentleman  should  withdraw  his 
amendment. 

Mr.  BAKER  said  that  if  he  believed  that  the 
views  of  the  gentleman  from  New  York  (Mr. 
JONES)  were  entertained  by  the  Convention,  or 
by  the  committee,  he  would  indeed  withdraw  his 
amendment.  But  it  seemed  to  him  that  it  might 
not  be  regarded  as  excluding  the  bodies  of  offi- 
cers— ag  supervisors  and  village  trustees.  It  is  the 
body,  the  collective  body,  being  or  entity,  the 
proposition  alludes  to.  But  as  the  words  were 
very  general,  he  would  upon  reflection  withdraw 
his  amendment. 

Mr.  RUSSELL  said  that  the  Convention  had 
already  adopted  13  propositions  for  standing  com- 
mittees. With  the  most  diligent  attention  to  the 
subject  matter,  he  apprehended  the  President 
would  hardly  be  able  to  make  the  appropriate  se- 
lections before  some  time  in  the  course  of  to- 
morrow. It  was  nearly  now  the  usual  hour  of 
adjournment,  and  if  the  Convention  should  think 
proper  to  modify  materially  or  to  divide  the  sub- 
ject matters  in  the  14th  proposition,  perhaps  a 
little  more  reflection  on  the  subject  was  necessa- 
ry. He  desired  very  much  to  have  the  next  suc- 
ceeding propositions  subdivided. 

[Here  there  were  several  manifestations  of  a 
desire  not  to  adjourn.] 

— However,  (continued  Mr.  R.,)  if  a  majority  of 
the  Convention  differed  from  him  and  saw  no 
necessity  for  any  delay  he  would  not  press  a  mo- 
tion to  adjourn. 

Mr.  CHATFIELD  moved  to  divide  the  14th 
resolution  into  two  as  follows  : 

gJH.  The  organization  and  power  of  cities  and  incorpo- 
rated villages,  and  especially  their  power  of  taxation,  as- 
sessment, borrowing  money,  contracting  debts,  and  loan- 
ing their  credit. 

15.  The  power  of  counties,  towns  and  other  municipal 
corporations,  except  cities  and  incorporated  villages,  and 
especially  their  powers  of  local  legislation,  taxation,  as- 
sessments, borrowing  money  and  contracting  debts. 

Mr.  LOOMIS'  impression  was,  that  these  sub- 
jects had  better  be  considered  together.  Both  of 
these  classes  are  municipal  corporations,  designa- 
ted for  the  exercise  of  the  powers  of  government 
in  particular  localities— that  of  cities  and  yilla- 
geg> — an<i  they  were  very  nearly  akin  in  their  na- 
ture to  each  other.  The  complaint  now  existing 
before  the  public  was,  that  the  cities  and  villages 
exercised  unduly  their  powers,  and  carried  them 
too  far.  On  the  other  hand,  with  reference  to 
towns  and  counties,  the  suggestion  abroad,  was, 
that  the  legislature  had  taken  the  power  out  of 
their  hands,  and  did  not  allow  them  to  exercise 
it  sufficiently.  It  appeared  to  him  that  the  same 
committee  should  have  both  subjects  under  con- 
sideration. The  question  of  devolving  a  great 
portion  of  the  legislative  powers  upon  the  boards 
of  supervisors,  or  town  officers,  was  one  worthy 
of  great  consideration,  and  involving  a  great  many 
serious  questions. 


80 


Mr.  TOWNSEND  differed  with  the  gentlema 
in  some  respects,  although  he  agreed  with  him  i 
his  conclusions.  He  thought  the  proposition  ( 
the  gentleman  from  Otsego  (Mr.  CHATFIELD)  t 
be  warranted  by  the  importance  of  the  subjec 
He  thought  with  the  sub-divisions  there  pro 
posed  and  that  of  the  7th  resolution,  the  mem 
bers  of  those  three  committees  would  find  abun 
dant  materials  to  occupy  them  in  deliberation. — 
In  order  to  blend  the  system  and  make  it  perfec 
as  a  whole,  if  necessary  the  several  committee 
could  occasionally  assemble  together  as  a  boarc 
The  amendments  of  Mr.  CHATFIELD  were  the 
adopted. 

The  16th  res6lution  was  then  read — as  follows 
16  The  currency,  banking  business  and  incorporations 
Mr.  RUSSELL  moved  to  amend  as  follows  : 

16.  The  currency  and  banking. 

17.  Corporations  other  than  banking  and  municipal. 

Mr.  R.  said  that  the  object  was  to  relieve 
committee  on  banking  and  the  currency  from  the 
immense  labor  that  would  devolve  upon  them. — 
All  are  aware  that  the  subject  of  banking  alone 
would  require  the  attention  of  a  most  able  com 
mittee  the  greater  part  of  the  session,  if  they  die 
justice  to  the  subject.  There  were  three  classes  o 
private    corporations,   rail  road,    insurance  anc 
manufacturing,  and  all  would  agree  with  him  tha 
the  laws  relating  to  them,  should  be   essentially 
different  from  those  referring  to  monied  incorpo- 
rations or  the  business  of  banking,  and  that  they 
were  separate  and  distinct  in  their  purpose  and  ob 
jects,  although  each  different  in  themselves.    He 
did  think  it  of  decided  importance  to  the  progress 
of  our  labors  that  separate  committees  should   be 
appointed.     He  had  desired   to   have  three,  bu 
others  had  thought  that  two  would  be   sufficient 
The  amendments  were   adopted. 

The  18th  resolution  was  then  read  as  follows 

18th.  The  subject  of  the  tenures  of  landed  estates. 

Mr.  TILDEN  moved  to  strike  out  the  words 
the  "  subject  of." 

Mr.  WORDEN  wished  to  make  a  suggestion  to 
his  friend.  Having  abolished  tenures  in  this 
State  some  60  years  ago,  and  there  being  no  landed 
estates  held  here  on  tenure,  as  the  word  is  under- 
stood, he  proposed  to  amend  by  adding  the  words 
"  the  creation  and  division  of  estates  in  land." 

The  amendment  was  adopted  as  the  substitute 
for  the  18th  resolution. 

Mr.  BAKER  now  moved  that  the  Convention 
adjourn  until  to-morrow  morning  at  9  o'clock, 
but  waived  it  at  the  request  of 

Mr.  WARD,  who  proposed  that  each  commit- 
tee should  consist  of  seven  members,  excepting 
the  judiciary,  which  he  proposed  should  consist  of 
thirteen. 

After  some  conversation  between  Messrs.  LOO- 
MIS  and  BASCOM  as  to  the  number  on  the  ju- 
diciary committee,  the  former  gentleman  sugges- 
ting nine  and  the  latter  advocating  thirteen. 

Mr.  KIRKLAND  trusted  that  the  proposition 
of  the  gentleman  from  Westchester  (Mr.  WARD) 
would  be  adopted,  as  then  every  member  would 
be  on  some  committee.  He  deemed  it  important 
also  that  the  judiciary  committee  should  consist 
of  the  number  mentioned  by  him. 

Mr.  TILDEN  had  heard  it  intimated  that  pro- 
positions were  to  be  offered  for  more  committees, 


and  perhaps  it  would  be  premature  therefore  to 
decide  upon  the  number  now. 

Mr.  WORDEN  said  that  before  this  question 
was  taken,  he  apprehended  it  would  be  well  to 
know  whether  we  had  parcelled  out  all  of  the 
business  of  the  Convention.  He  had  been  look- 
ing anxiously  for  some  proposition  to  be  brought 
forward  in  regard  to  the  Executive— the  execu- 
tive power  of  this  government.  There  had  been 
various  propositions  submitted,  tending  to  cir- 
cumscribe and  limit  the  legitimate  action  of  the 
popular  will,  through  the  only  organ  by  which 
that  popular  will  acted — the  legislature — the  im- 
mediate representatives  of  the  people.  Especial 
pains  had  been  taken  in  that  respect,  but  he  had 
seen  no  indication  of  any  disposition  as  yet  mani- 
fested in  any  quarter,  even  to  interfere  with  or 
enquire  about  the  still  greater  power  lodged  in  the 
Executive  department  of  the  State — and  before  this 
question  was  finally  disposed  of,  he  trusted  some 
gentleman  would  bring  forward  a  proposition  to 
that  effect. 

Several  gentlemen  here  said  that  the  motion 
lad  been  brought  forward. 

Mr.  WORDEN  did  not  so  understand  it.  It 
struck  him  with  some  surprise  that  we  should 
lave  omitted  entirely  to  have  alluded  to  the  ques- 
tion of  Executive  power — of  the  power  of  State 
officers — to  the  delegation  of  legislative  powers 
rom  time  to  time  vested  in  the  public  function- 
aries of  the  State.  And  without  going  into  that 
oroposition  now,  in  order  that  we  may  look  at 
;hese  resolutions  which  had  been  adopted,  and 
see  whether  any  thing  required  to  be  added  or  to 
)e  taken  away  from  them,  he  moved  their  print- 
ng,  and  that  the  question  on  their  final  adoption 
>e  laid  over  until  they  were  printed. 

Mr.  CAMBRELENG  called  for  the  reading  of 
he  5th  and  6th  propositions. 

They  were  read  as  follows  : 

6.  The  election,  tenure  of  office,  compensations,  pow- 
rs  and  duties,  except  the  power  to  appoint  or  nominate  to 
ffice,  of  the  Governor  and  Lieut.  Governor. 
6.  The  election  or  appointment  of  all  officers,  other  than 
egislative  and  judicial,  and  the  Governor,  and  Lieuten- 
nt  Governor  whose  duties  and  powers  are  not  local,  and 
aeir  powers,  duties  and  compensation. 

Mr.  PERKINS  said  it  appeared  to  him  that  we 
ad  better  ascertain  whether  there  were  any  more 
ommittees  to  be  raised,  before  a  vote  was  taken 
n  the  number  of  persons  they  were  to  comprise. 

The  question  was  then  taken  on  Mr.  WARD'S 
motion,    (relative  to  the  number)    and  it  was 
arried. 

THE  RIGHTS  OF  MARRIED  WOMEN. 

Mr.  BOWDISH  desired  .to  lay  on  the  table  are- 
olution,  in  behalf  of  his  colleague,  (Mr.  NELLIS) 
ow  absent. 

It  was  read,  as  follows  : 

Resolved,  That  a  committee  be  appointed  to  consider 
nd  report  on  the  expediency  of  giving  to  females  the 
ght  to  hold  and  transfer,  after  marriage,  all  property  real 
nd  personal,  acquired  by  them  before  or  by  gift,  devise 
r  bequest  after  marriage,  and  of  making  them  and  their 
roperty  liable  for  their  debts  contracted  before  or  after 
arriage,  and  in  case  of  the  inability  of  the  husband,  liable 
r  the  support  and  maintenance  of  their  families. 

Mr.  MORRIS  said  it  was  perfectly  proper  to  re- 
r  the  resolution  to  the  committee  on  the  rights 
nd  privileges^  of  the  citizen. 
Mr.  BOWDISH  assented  to  this  course,  and  it 
as  so  disposed  of. 


81 


CLASS  LEGISLATION. 

Mr.  WHITE  offered  the  following  resolution : 

Resolved,  That  a  committee  be  appointed  to  inquire  into 
the  expediency  of  providing  in  the  Constitution,  that  no 
law  or  laws  shall  be  enacted  by  the  legislature,  or  by  any 
corporation  or  other  municipal  authority,  restrictive  of  the 
principles  of  trade  or  commerce,  or  the  right  of  the  people 
to  follow  any  business,  calling  or  employment  whatsoever 
—whereby  one  branch  of  industry  shall  be  subjected  to  a 
tax  from  which  others  are  exempted  -and  that  said  com- 
mittee report  thereon. 

Mr.  STRONG  would  suggest  to  the  Chair, 
that  these  resolutions  were  not  in  order.  They 
would  be  when  under  our  rules  resolutions  were 
in  order.  There  would  be  no  end  to  them  if  al- 
lowed to  be  received  here.  And  as  it  was  about 
the  hour  when  members  wanted  their  dinners,  and 
as  he  had  always  noticed  that  wh#t  was  done 
when  we  wanted  our  dinners,  was'  badly  done, 
he  would  therefore  move  that  the  Convention  ad- 
journ. 

Mr.  BAKER  said  that  he  had  a  motion  pending 
to  adjourn  to  9  o'clock  to-morrow  morning,  which 
he  thought  to  be  first  in  order. 

The  PRESIDENT  said  that  a  motion  to  adjourn 
without  hour,  took  precedence. 

And  then  the  Convention  adjourned  to  11  o'- 
clock to-morrow  morning. 

THURSDAY  (IQth  day)  June  11. 

Prayer  by  Rev.  Mr.  BENSON. 

Mr.  BOWDISH  offered  a  resolution  that  the 
secretary  call  over  the  names  of  the  members,  and 
that  the  latter  as  they  are  called  announce  the 
number  of  their  respective  seats,  so  as  to  correc! 
the  printed  diagram  of  the  chamber.  This  was 
adopted  and  the  roll  called,  &c. 

THE  RIGHTS  OF  FOREIGN  WITNESSES. 

Mr.  KENNEDY  offered  this: 
Resolved,  That  it  be  referred  to  the  committee  on  the 
right  and  pr:vileg<;s>  of  citizens  this  State,  to  consider  and 
report  on  the  propriety  of  securing  the  rights  and  priv 
ileges  of  persons,  other  than  citizens,  who  may  b«  under 
the  jurisdiction  of  this  State. 

It  was  adopted. 

POWERS  OF  BOARDS  OF  SUPERVISORS. 

Mr.  FORSYTH  offered  a  resolution,  that  eo 
much  of  the  constitution  as  related  to  the  powers 
and  duties  of  the  Board  of  Supervisors  in  various 
counties  throughout  the  State  be  referred  to  a  spe- 
cial  committee  to  consider  and  report  thereon. 

Mr.  FORSYTH  said  he  did  not  know  but  that 
some  might  consider  the  objects  of  this  resolution 
to  be  embraced  in  one  of  the  subdivisions  that  had 
already  been  passed  upon.  But  in  his  judgment 
the  subject  was  of  sufficient  importance  to  demand 
a  separate  committee.  It  was  a  matter  which  had 
attracted  very  great  attention  for  some  time  past 
throughout  the  State;  and  the  vast  field  of  inllu. 
ence,  and  the  enormous  powers,  and  very  respon- 
sible duties,  which  these  supervisors  held  and  ex- 
ercised, rendered  the  subject  deserving  of  the 
special  attention  of  the  committee. 

Mr.  CHATFIELD  did  not  desire  to  embarrass 
any  gentleman  who  might  offer  and  desire  to  refer 
any  propositions  which  he  deemed  worthy  of  con- 
sideration. But  before  this  resolution  for  appoint- 
ing a  special  committee  was  adopted,  we  had  bet- 
ter consider  our  action  of  yesterday,  and  especial- 
ly the  committee  that  was  to  be  raised  under  the 
15th  subdivision.  The  powers  and  duties  of  su- 


pervisors embraced,  in  a  measure,  the  sum  total 
of  the  corporate  powers  of  each  county.  That 
was  the  main  business  for  that  15th  committee  to 
inquire  into,  and  if  taken  away  from  them,  they 
would  have  nothing  to  inquire  into,  because  it  is 
not  to  be  presumed  that  that  committee  will  make 
any  very  great  alteration  in  the  political  power  of 
these  towns,  villages.  &c.;  but  they  will  mainly 
have  to  consider  the  duties  and  powers  of  the 
board  of  supervisors  ;  .the  power  of  assessment, 
taxation,  borrowing  money,  &c.  &c.  And  this 
was  the  especial  purport  of  the  gentleman's  resolu. 
tion.  There  was,  therefore,  no  necessity  for  a 
special  committee. 

Mr.  FORSYTH  said  he  would  remove  the  ob- 
jection of  Mr.  C.,  by  moving  to  have  his  resolu- 
tion referred  to  that  15th  committee.  Agreed  to 
and  referred. 

ELECTION  DISTRICTS. 

Mr.  MORRIS  offered  a  resolution  that  the  ap- 
propriate committee  enquire  into  the  propriety  of 
dividing  the  State  into  single  election  districts 
for  members  of  the  Senate  and  Assembly,  &c. 

Mr.  STRONG  enquired  to  what  committee  he 
proposed  to  refer  this. 

Mr.  MORRIS  said  he  found  it  was  the  commit- 
tee  under  the  1st  sub-division. 

Agreed  to  and  referred. 

NATURALIZATION    LAWS. 
Mr.  HARRISON  (from  Richmond)  then  moved 
the  following: — 

Resolved,  That  the  committee  on  the  elective  franchise 
&c.,  inquire  into  the  expediency  of  so  arrrending  the  Con- 
stitution of  this  State  as  to  secure  to  the  people  of  this  State 
an  annual  Registry  of  the  names  of  all  legal  voters,  previ- 
ous to  the  election;  and  further  to  inquire  into  the  expedi- 
ency of  so  amending  the  Constitution  that  citizens  from 
other  States,  and  every  person  hereafter  naturalized  shall 
reside  one  year  in  the  State  after  naturalization  before  he 
shall  be  admitted  to  exercise  the  right  of  suffrage. 

Mr.  STRONG  hoped  that  the  Chair  would  in 
all  instances  give  the  names  of  all  gentlemen  who 
should  offer  resolutions,  as  it  would  be  a  very  great 
accommodation  to  the  members. 

Mr.  HUNT  of  N.  Y.  moved  to  amend  by  strik- 
ing out  the  words  "every  person  hereafter  natu- 
ralized.5' 

Mr.  WARD  said  that  he  was  opposed  entirely 
to  the  sentiments  contained  in  the  resolution  of 
the  gentleman  from  Richmond  (Mr.  HARRISON;) 
but  he  would  express  no  opinion  in  advance.  He 
was  desirous  to  hear,  to  see,  and  to  receive,  the  pro- 
position of  every  gentleman, having  reference  to  the 
amendment  of  the  Constitution,  in  precisely  his 
own  words;  and  he  wished  all  propositions  to  be 
referred  in  that  shape  without  mutilation  or  al- 
teration. We  were  not  here  then  to  settle  prin. 
ciples,  and  no  gentleman  would  be  committed  by 
such  a  course,  and  we  should  all  know  precisely 
where  we  stand,  what  are  our  sentiments,  and 
what  we  have  before  us  to  consider. 

Mr.  O'CONOR  did  not  like  the  precise  shape 
in  which  many  of  these  resolutions  of  enquiry 
were  presented.  The  one  just  presented  for  in- 
stance, if  adopted,  would  convey,  to  a  certain  ex- 
tent,  the  impression  that  it  is  the  sense  of  the 
Convention  that  all  persons  shall  reside  at  least 
one  year  in  the  State  after  they  have  become  citi. 
zens  by  the  ordinary  process  of  naturalization. — 
Now,  he  was  exceedingly  desirous  to  avoid,  even 


82 


by  implication,  any  such  expression  of  opinion, 
previous  to  the  subject  matter  having  been  de- 
bated before  that  body.  He  did  not  desire  to  pre- 
sent any  obstruction  to  the  free  discussion  of  any 
propositions;  nor  should  any  gentleman  desire  to 
do  so.  He  would  offer  no  impediment  to  the  con- 
sideration of  any  resolution  on  that  floor,  although 
it  might  have  but  a  single  advocate  in  the  Con- 
vention. And  therefore,  to  avoid  committing  the 
Convention  to  the  principles  of  the  resolution  in 
any  way,  or  having  it  inferred  that  its  tenets  were 
in  any  way  countenanced  or  considered  necessary, 
he  would  move  to  refer  it  to  the  committee  on  the 
elective  franchise. 

Mr.  SHEPARD  said  there  was  one  difficulty  in 
this  resolution.  It  provided  that  citizens  should  re- 
side here  one  year  after  they  were  naturalized  be- 
fore they  should  be  allowed  to  vote.  This  conflicted 
with  the  Constitution  of  the  United  States,  and 
could  not  be  put  in  force,  even  if  it  was  engrafted 
on  our  Constitution  by  the  Convention,  and  subse- 
quently adopted  by  the  people, — being  contrary  to 
the  superior  power  of  the  Constitution  of  the 
United  States. 

Mr.  PATTERSON  said  that  this  had  been  the 
precise  provision  of  the  Constitution  of  this  State, 
for  the  last  25  years.  The  gentleman  from  New 
York  could  not  have  understood  the  resolution. 

Several  voices — No,  no — citizens  from  other 
States  must  reside  a  year. 

,Mr.  SIMMONS  said  that  with  regard  to  the 
principles  contained  in  this  resolution  there  were 
many  *  seriously  conflicting  opinions  among  the 
very  best,  most  well-informed,  and  well  meaning 
men  in  the  State.  For  his  own  part,  he  had  never 
expressed  a  decided  opinion  on  the  subject,  or 
taken  strong  ground  either  for  or  against  the  doc- 
trine contained  in  the  resolution.  It  was  well 
known  that  our  constituents  have  the  right  of  pe. 
tition  to  this  body;  but  still  we  cannot,  and  do  not 
expect  that  many  petitions  will  flow  unto  us 
from  the  people  at  this  session.  And  we  re- 
cognize the  right  of  presenting  a  resolution  in 
this  Convention  to  be  referred  ;  for  it  is  a  kind 
of  petition,  from  the  people,  expressed  through 
their  delegates.  The  gentleman  from  West- 
chester  (Mr.  WARD)  was  quite  right,  there- 
fore, in  the  position  he  took,  that  every  gentleman 
on  this  floor  had  a  right  to  be  heard,  and  his  peti. 
tions  or  resolutions  referred  in  his  own  language, 
without  any  obstruction  ;  for,  after  all,  these  reso- 
lutions are  quasi  petitions  from  our  constituents 
and  all  have  a  right  to  be  heard.  Both  sides  shoulc 
be  heard,  however  wrong  any  one  of  them  may  be 
and  then  by  fair  investigation  we  shall  easily  de 
tect  the  wrong  ;  as  to  each  subject  there  can  be 
but  one  right  side.  The  sentiments  of  the  gentle 
man  from  Westchester  (Mr.  WARD)  are  the  cor 
rect  sentiments,  and  such  as  ought  to  guide  this 
body  in  all  its  deliberations.  These  questions  wil 
have  all  to  be  met,  first  or  last.  They  cannot  be  go 
round,  nor  rode  over,  nor  done  away  with.  The) 
must  be  met  with  able  argument,  and  imparti^ 
and  learned  reports,  setting  forth  their  errors,  i 
they  exist.  That  is  the  only  way  to  meet  all  grea 
moral  questions — by  reason.  And  this  would  no 
in  any  way  commit  the  Convention  to  any  peculiai 
doctrines  contained  in  any  of  these  resolutions 
even  if  they  were  not  only  received,  but  referred 
discussed,  and  reported  on.  It  was  nothing  mor< 


ban  thecouise  pursued  vttlh  an  ordinary  petition. 
And  they  must  be  met  at  the  start  in  a  fair,  honest 
and  candid  manner ;  for  if  we  did  not  do  this,  they 
Tvill  increase  four  fold;  and  to-morrow  morning  they 
vill  be  brought  in  as  petitions  and  command  all 
;hat  attention  and  notice  we  ought  to  give  them 
now  in  this  shape.  It  was  best  to  pursue  a  liberal 
course  ;  let  gentlemen  make  all  their  propositions 
reely — have  no  restraint — let  them  be  referred 
and  considered — and  then  there  can  be  no  miscon- 
struction or  misunderstanding  about  the  matter 
hereafter. 

Mr.  KIRKLAND  thought  that  Mr.  O'Cowoa 
was  under  a  misapprehension  in  regard  to  the  ef- 
fect of  referring  these  resolutions  of  enquiry.  In 
adopting  and  referring  any  resolution  he  (Mr.  K.) 
cer'ainly  did^not  consider  that  he  committed  him. 
self  or  that  any  member  of  the  Convention  was 
committed  in  any  way  to  any  course  of  action  in 
relation  to  that  subject  hereafter.  He  agreed  with 
the  gentleman  from  Essex  (Mr.  SIMMONS)  that  all 
these  resolutions,  like  all  petitions,  come  from 
what  quarter  they  may,  should  be  properly  refer- 
red as  a  mere  matter  of  right.  Were  this  a  vote 
on  a  question  of  the  principle  involved  in  the  re- 
solution, he  would  vote  very  differently  from  what 
he  did  on  the  mere  question  of  reference.  He  re. 
garded  it  as  a  sort  of  petition  presented  by  the 
mover  ;  embodying  the  desires  of  his  constituents 
as  the  gentleman  from  Essex  (Mr.  SIMMONS)  very 
justly  observed.  But  he  at  the  same  time  wished 
it  understood  that  in  thus  voting  to  refer  and  to 
have  fully  considered,  all  these  resolutions  of  en- 
quiry, that  he  was  not  therefore  in  the  slighest 
degree  committed  to  one  of  the  principles  involved 
in  any  of  the  resolutions. 

Mr.TALLMADGE  felt  great  gratification  in  find- 
ing  that  the  membeis  of  the  Convention  were  begin- 
ning in  some  measure  to  develope  their  attitude  be- 
fore  the  public  ;  and  to  exhibit  and  draw  forth  the 
feelings  and  views,  the  motives  and  opinions  by 
which  they  were  actuated.  He  was  glad  to  see 
that  they  were  taking  up  a  fixed  position,  so  that 
it  could  be  known  to  the  public  where  they  stood 
and  how  they  stood.  What  was  the  proposition 
now  before  them?  It  was  to  refer  a  certain  sub- 
ject to  a  committee  of  enquiry.  How  had  it  been 
met  ?  Why,  it  was  proposed  to  grant  its  reference 
as  a  matter  of  courtesy.  Now  he  wished  to  have 
nothing  referred  as  a  matter  of  courtesy,  but  he 
demanded  that  his  friend's  resolution  should  be 
referred  as  a  matter  of  right !  on  the  same  footing 
and  the  same  principle  that  the  resolutions  of 
other  gentlemen  had  been  referred.  What  did  we 
propose  on  the  second  day  of  our  meeting  here—- 
the very  first  step  almost  in  our  proceedings — 
why,  to  take  up  the  great  and  leading  features  of 
the  Constitution ;  to  refer  the  Executive  depart- 
rrent,  the  Legislative  department,  and  the  Judi- 
cial department  of  it;  and  so  on, running  through 
the  great  divisions  of  that  instrument— and  refer 
them  to  various  committees,  without  having  any 
member  thereof,  or  of  this  body  committed  by  such 
a  course ;  and  it  was  then  proposed  and  agreed  to 
and  understood  by  all,  that  any  member  should 
have  the  right  to  send  any  proposition  of  his  af- 
terwards to  these  committees  without  obstruction. 
And  what  do  we  see  now  ?  We  come  now  to  car. 
ry  out  this  agreement,  this  understanding,  thus  en- 
tered into— and  gentlemen  come  forward  with  cer- 


83 


tain  propositions  which  thev  desire  to  have  re 
ferred,  and  they  put  them  in  a  shape  which  they 
prefer;  how  are  they  met?  "  Oh."  it  is  said, 
— "  that  won't  do— that's  too  loose— [laughter] 
— too  loose — the  blade  flew  out  of  the  han- 
dle !  [Laughter.]  This  won't  do!"  Wha 
next  ?  Why  we  have  spent  nearly  two  weeks  in 
the  discussion  of  trifling  amendments;  and  here 
we  stand  now  just  about  where  we  were  on  the 
2d  day  of  the  session.  Well,  we  now  think  o 
putting  ourselves  into  a  condition  to  proceed  di 
rectly  to  the  important  business  before  us.  These 
little  resolutions  of  enquiry  begin  to  come,  in  and 
what  then  ?  Ah!  then  the  cry  is  that  these  reso 
lotions  have  a  meaning— they  aie  objected  to, 
because  they  have  too  much  meaning;  and  there, 
fore  it  would  not  do  to  trust  these  committees  with 
them!  Yes  indeed,  'some  of  them  have  a  meaning 
And  this  one  just  offered  by  his  friend  from  Rich- 
mond,  (Mr.  HARRISON)  had  a  most  momentous 
meaning!  What  was  the  resolution?  What  did 
it  propose  for  enquiry?  That  each  citizen  coming 
from  another  State  into  this  State  shall  reside  one 
year  in  this  State,  just  preceding  the  election,  b 
fore  he  shall  be  allowed  to  cast  his  vote!  That  is 
the  enquiry;  and  a  most  proper  one  it  is.  Who 
can  object  to  it? — to  engraft  on  the  Constitution 
that  which  now  forms  part  of  the  law  ;  and  which 
is  embodied  in  the  election  oath  that  each  man 
may  be  compelled  to  take  before  he  can  vote. — 
What  farther  does  it  require?  Why  it  goes  on 
and  says,  that  every  alien  shall  have  resided  here 
one  year  after  his  naturalization,  before  he  shall 
be  entitled  to  vote !  And  unless  this  rule  is  made 
to  operate  generally,  the  native  born  citizens 
coming  here  from  other  states  will  not  be  on  a 
par  with  the  foreign  voter.  While  an  alien 
who  comes  to  the  State  only  the  day  before 
the  election,  and  gets  out  his  naturalization 
papers,  can  vc*e  the  next  day.  (Several  voices — 
"That's  not  so:")  Yes— that  is  so.  Why  not 
then  let  the  alien  have  the  same  requirements  to 
fulfil  as  the  native  born  citizen  has?-  the  same 
period  of  residence  before  he  can  vote?  He  could 
go  on  and  show,  if  it  was  not  out  of  order,  or  con- 
suming the  time  of  this  Convention,  the  injustice 
of  the  General  Government  on  other  branches 
connected  with  this  subject;  in  the  commercial 
regulations  that  have  been  adopted  by  Congress; 
where  by  pursuing  a  course  similar  to  this,  the 
General  Government  have  put  the  alien  ships  over 
our  own  ships — given  a  preference  to  foreign  ships! 
What  caused  gentlemen  to  be  so  very  sensitive  on 
this  subject?  We  want  to  get  a  good  registry  act, 
—at  least,  a  great  many  of  us  did  Is  there  any 
objection  to  that?  Give  the  gentleman  from 
Richmond  the  enquiry.  It  does  not  commit 
the  Convention.  He  desired  it  in  the  name 
of  his  constituents.  And  he  also  wants  an 
enquiry  into  the  propriety  of  putting  the  alien 
under  the  same  rules  and  restrictions  as  our  own 
citizens  !  Is  there  any  thing  unreasonable  in  this? 
Was  it  not  a  very  natural  desire  ?  It  struck  him  so ; 
and  he  rejoiced  for  one  that  these  opinions  and  feel- 
ings have  thus  begun  to  develope  themselves. — 
He  was  glad  that  members  had  begun  to  develop 
their  sentiments  to  the  country  in  this  way;  and  if 
they  continued  thus,  their  relative  associations  and 
positions  would  soon  be  shown.  The  reference 


ought  certainly  to  be  made  at  once  ;  and  what  was 
more,  it  ought  to  have  been  made  in  silence. 

Mr.  CHATFIELD  moved  to  amend  by  adding 
after  the  words  "  Resolved,  that"  the  words  "  it 
be  referred  to;"  and  after  the  word  "  franchise" 
the  word  "  to." 

Mr.  O'CONOR  agreed  to  this,  and  withdrew 
what  he  had  offered. 

Mr.  HUNT  then  withdrew  his  amendment. 

Mr.  CHATFIELD  said  his  would  read,  "  Re- 
solved, That  it  be  referred  to  the  committee  on 
the  Elective  Franchise  to  enquire  into  the  expe. 
diency  &c.  &c." 

Mr.  HARRISON  accepted  this. 

Mr.  TILDEN  suggested  that  gentlemen  bring, 
ing  propositions  for  reference  before  the  Conven- 
tion should  give  them  a  distinctly  affirmative  cha- 
racter ;  and  then  move  to  refer  them  to  the  appro- 
priate committee.  There  will  be  no  expression 
of  opinion  by  the  Convention  in  referring  the  pro- 
position. 

Mr.  MURPHY  rose  and  said,  that  he  had  no 
objection  whatever  to  the  reference  of  this  reso- 
lution. He  concurred  with  the  gentleman  from 
Dutchess,  (Mr.  TALLMADGE)  so  far  as  that 
point  was  concerned.  But  when  that  gentleman 
was  making  his  remarks  on  the  subject  of  the  re- 
ference, he  had  not  stopped  there,  but  had  gone 
on  and  introduced  the  subject  fof  the  merits  of 
that  resolution,  and  be  for  one,  rose  to  protest 
against  the  doctrines  of  that  gentleman,  as  then 
laid  down.  He  denied  that  any  advantages  were 
given  by  the  present  Constitution,  or  by  the 
laws  of  the  State  to  the  alien,  over  the  native 
born.  No  alien  can  vote  now  in  this  State  unless 
he  has  resided  in  the  State  for  one  year  just  pre- 
ceding the  election ;  that  was  his  understanding 
of  the  Constitution  of  the  State 

Mr.  T :  Not  the  Constitution. 

Mr.  MURPHY  :  Yes,  sir.  And  the  proposi- 
tion of  the  gentleman  from  Richmond,  (Mr.  HAR- 
RISON) is — at  least  the  certain  effect  of  it  will  be, 
to  compel  an  alien  to  reside  in  this  country  six 
years  before  he  shall  be  entitled  to  vote,  instead 
of  five  years  as  now  !  He  believed  that  five  years 
was  long  enough  to  develop  the  intention  of  any 
alien,  as  to  whether  he  intends  to  become  a  citi- 
zen of  this  country  or  not ;  and  that  was  the  only 
question  of  principle  involved  in  our  Naturali- 
zation laws.  He  repeated  that  he  heartily  protes- 
;ed  against  the  doctrine  as  laid  down  by  the  gen- 
;leman  from  Dutchess,  (Mr.  TALLMADGE).  He 
lad  no  wish  to  take  up  the  time  of  the  commit- 
;ee  ;  and  he  rose  simply,  because  he  could  not  al- 
.ow  the  remarks  of  that  gentleman  to  go  without 
opposition  to  them.  He  had  nothing  more  to  say. 

Mr.  TALLMADGE  wished  to  say  but  a  single 
word  in  reply  to  his  learned  friend  from  Kings 
Mr.  MURPHY.)  An  alien  (under  the  present 
Constitution)  who  may  have  resided  5  years  at 
rloboken,  goes  over  to  New  York  to-day,  gets  out 
lis  naturalization  papers,  and  to-morrow  he  goes 
o  the  polls  and  votes  there  in  the  city  of  New 
York. 

Several  Members— No,  no!  Oh,  no!  No,  sir— 
le  can't.  It's  not  so!  That  is  not  so! 

Mr.  TALLMADGE  said  he  believed  it  was  so; 
he  felt  sure  it  had  been  done.  And  the  law  alone 
would  prohibit  him  if  he  did  not  do  it — not  the 
Constitution.  While  citizens  of  other  States  must 


84 


reside  a  year  in  this  State  before  they  can  vote; 
this  is  the  requirement,  however  by  law,  and  it  is 
not  in  the  Constitution.  (Voices— "oh,  yes,  it  is.") 
There  w  as  the  great  difficulty.  And  as  his  learned 
friend  from  King's  (Mr.  MURPHY)  would  make 
him  speak  on  this  point,  he  would  say  for  himself 
that  he,  and  also  those  who  thought  on  this  sub- 
ject as  he  did,  desired  by  this  resolution  to  pave 
the  way  for  a  plan  to  put  these  fliens  on  the  same 
footing  precisely  as  our  own  citizens.  What  rea- 
sonable man  would  possibly  object  to  that?  Let 
the  reference  be  had.  Nobody  would  be  commit- 
ted by  it.  Let  the  committee  examine  the  sub 
ject  and  report  on  it;  so  as  to  have  some  clause 
engrafted  on  the  Constitution  in  reference  to  this. 
Aliens  should  certainly  be  put  on  a  par  with  our 
own  native  born  citizens.  That  was  the  law  on 
the  subject;  but  it  was  not  required  by  the  Constitu- 
tion. The  law  of  the  State  requires  that  if  chal- 
lenged,  we  shall  swear  we  have  resided  at  least 
one  year,  just  preceeding,  in  the  State.  But  we 
want  to  make  that  Constitutional,  which  is  now 
.only  the  Statute  Law. 

SEVERAL  VOICES.    It  is    in   the  Constitution 
now! 

Mr.  TALLMADGE  said  he  did  not  certainly  so 
understand  it  to  be.     He  might  however  possibly 
be  mistaken  ;  and  if  he  had,  his  information  came 
from  a  friend  sitting  near  him,  who  had  often  pre- 
sided as  an  inspector  of  elections.     But  even  if  it 
was  there,  then  it  resolves  into  a  mere  question  of 
policy,  which  is   worthy  of  inquiry,  whether  an 
alien  shall  or  shall  not  reside  in  the  State  one  year 
after  he  has  been  naturalized,   before  he  shall 
vote.     That  point  certainly  was  not  a  requirement 
in  the   present  Constitution.     We  wish  this  dis- 
tinct point  of  inquiry  presented  : — "  Shall  aliens 
be  allowed   to  vote  in  the  State  the  instant  they 
are  naturalized,  when  native  born  citizens  have  to 
wait  a  year  in  the  State  before  they  can  vote  ?"— 
That's  the  question.   But  let  us  look  at  it  in  another 
point  of  view.     Is  it  not  worthy  of  inquiry  to  see 
whether   the   citizens  of  England,  Ireland,  Hol- 
land, Gaul,  Italy,  or  other  parts  of  Europe,  who, 
when  they  first  come   here,  are  subject  to  none  oi 
the  requisitions  that  are  made  on  our  own  citizens 
shall  acquire  in  5   years  the  right  to  vote  ;  when 
up  to  the  day  they  vote,  they  have  no  liabilities  on 
them  as  citizens  ?     Is  this  right  or  just?     While 
our  own  citizens  wait  one  year,  ought  not  the  for- 
eigner to  wait  that  one  year  also  ?     But  to  go  fur- 
ther, you  will  not  allow  that  gentleman's  son  to 
vote   because  he's  only  18;  and   yet  you   subject 
him  to  do  military  duty.   Why  should  you  exclude 
these,  when  you  put  the  German  who  cannot  speak 
our  language,  over  them,  and  give  them  privileges 
which  your  native  born  citizens  do  not  have  ?— 
You  give  the  alien,  who  is  ignorant  of  our  Ian 
guage,  who  knows  nothing  of  our  laws  and  insti 
tutions,  advantages  you  deny  to  your  own  sons 
Here  is  the  foreigner,  brought  up  under  monarchi 
al  institutions,  with  no  intetest  in  our  country,  n< 
respect  for  our  laws  ;  why  let  him  vote  before  he 
has  remained  a  year   after   naturalization  ?     W< 
merely  think  that  these  naturalized  citizens  ough 
to  wait  as   long  as  our  own  children  have  to  wait 
after  they  are  liable  to   militia  duty  ;  they  ough 
to  wait  long  enough  to  know  our  institutions  am 
laws,  and  to  vote   intelligibly.     He  did   not  wan 
to  discuss  the  question  now ;  let  the  committee 


ave  the  subject  at  once,^vithout  any  one  saying 
whether  he  was  in  favor  of  the  measure  or  not. 
Send  it  to  the  committee. 

Mr.  MURPHY  said  he  only  rose  now  to  state 
hat  he  had  no  desire  to  provoke  any  discussion  on 
his  question.     If  he  had  correctly  understood  the 
course  of  proceeding  in  this  matter,  all   the  dis- 
cussion on  it  had  been   provoked   by   the   course 
pursued   by  his   venerable   friend  from  Dutchess 
Mr.  TALLMADGE).     What    he  had  first  risen  to 
effect,  was  an  entire  separation  of  the  question  of 
he  reference  of  this  subject,  from  the  one  of  me- 
rits.    He  had  not  the  slightest  objection  to  having 
t  referred.     He  wished  distinctly  to  be  so  under- 
itood.     He  hoped  that   every  question  connected 
w  ith  the  policy  or  government  or  Constitution  of 
he  State  would  be  referred.     He  would  have  every 
sentiment,  every  document,  every   opinion  en- 
ertained    by  his    fellow-citizens   referred   to   an 
appropriate  committee,  whenever  any  one  choose 
o    offer  a  proposition  to    that  effect — let   these 
opinions   and  sentiments  and  doctrines,  be  as 
broad  at  the  State  itself!    But  on  the  merits  of 
he  resolution,  he  differed  with  the  gentleman  from 
Dutchess,  in  toto  ccelo.  The  gentleman  from  Dutch- 
ess  (Mr.  TALLMADGE)  however,  had  invited  this 
discussion. 

Mr.  TALLMADGE  had  merely  replied  to  the 

bjections  which  were  made  to  the  reference   of 

it,  by  the  gentleman  from  N.  York   (Mr.   O'CoN- 

OR.)  He  had  no  intention  to  invite  a  discussion — but 

merely  to  meet  those  objections. 

Mr.  MURPHY  said  that  the  Constitution  of  this 
Stale  now  provided  that  all  aliens,  as  well  as  all  na- 
tive born  citizens  shall  reside  here  at  least  one  year 
preceding  the  election,  before  they  shall  be  allow- 
ed to  vote.  Now  if  the  principle  contained  in  that 
resolution  be  adopted,  it  will  require  an  alien  to 
reside  here  6  years  instead  of  5,  before  he  can  vote; 
thus  nullifying  the  law  of  the  federal  government, 
which  gives  him  the  rights  of  citizenship  at  the 
end  of  5  years.  But  to  the  gentleman's  own  illus- 
tration— the  case  of  the  native  born  who  are  not 
allowed  to  vote  till  they  are  21  years  of  age — ap- 
ply this  doctrine  to  them — and  it  will  require  that 
minors  shall  stay  here  until  they  are  22  years  of 
age  before  they  can  vote.  And  against  this  doc- 
trine,  sir,  I  protest ;  and  having  protested,  I  have 
no  more  to  say. 

Mr.  HARRISON  had  not  intended  to  commit 
the  Convention  in  any  way  to  the  principle  of  hia 
resolution.  He  merely  wished  an  enquiry  into 
the  subject;  he  desired  earnestly  to  see  if  some 
provision  could  not  be  engrafied  on  the  Constitu- 
tion that  would  prevent  the  abuses  at  the  polls 
which  had  been  so  frequent  of  late  years — and  he 
believed  mostly  with  the  foreign  voters.  He  did 
not  wish  to  injure  or  take  away  the  rights  or  pri- 
vileges of  any  class  of  our  native  bom  citizens,  or 
of  those  aliens  now  naturalized,  or  who  might  here, 
after  come  amongst  us.  But,  he  contended,  that 
it  was  no  more  oppressive  for  an  alien  after  he 
was  naturalized  to  reside  here  a  year  before  vot- 
ing, than  for  a  citizen  who  had  been  a  citizen  for 
40  years  of  the  United  States,  and  moved  to  anew 
State,  to  reside  a  year  before  voting.  He  had  re- 
sided in  the  State  of  New  York  40  years,  but  if  he 
had  lived  40  years  in  his  native  State,  and  had 
moved  to  New  York  State  last  April,  he  would 
not  vote  here  next  November— because  the  law 


85 


ne  shall  be  here  a  year  first.  Is  it  more  op- 
pressive to  require  this  from  aliens  than  it  is  to 
ask  it  of  native  born  citizens?  But  he  would  not 
now  go  into  the  merits  of  the  question  ;  he  mere- 
ly asked  now  that  it  should  be  referred. 

Mr.  PATTERSON  did  suppose  that  under  all 
parliamentary  usage,  on  a  mere  question  of  refer- 
ence, the  intuits  of  the  question  to  be  referred  were 
not  debatable.  And  he  supposed  so  still.  But 
others,  it  seemed,  had^aken  a  different  view  of  this 
matter.and  the  President  has  permitted  them  to 
go  on  and  to  go  into  the  merits  of  the  question, 
and  to  discuss  the  principles  which  are  involved 
in  it.  He  would  not  take  advantage  of  this  liber- 
ty which  had  been  granted  to  others;  he  would 
not  go  into  the  merits  of  the  question  at  all.  But 
he  would,  now  he  was  up,  protest  once  for  all, 
against  any  distinction  being  drawn  between  the 
naturalized,  and  the  native  born  citizens.  He 
had  no  objection  to  the  reference.  Let  every 
gentlemen  have  whatever  subject  he  pleases  to 
have  referred,  sent  to  be  considered  by  a  proper 
committee.  But  he  mu?t  again  protest, once  for  all, 
against  any  line  of  distinction  being  drawn,  here 
or  elsewhere,  between  the  naturalized  and  the  na- 
tive born  citizens. 

The  resolution  of  Mr.  HARRISON  was  then 
referred. 

PETIT  JURORS. 

Air.  HART  presented  this:— 

Resolved,  Tiiat  it  be  referred  to  the  committee  on  the 
Judiciary  to  consider  and  report  on  the  propriety  and  ex- 
pediency o;  reducing  the  number  of  petit  jurors  to  eight,  in 
trials  of  civil  causes  ;  and  especially  whether  in  their 
opinion  the  due  administration  of  justice  would  in  any 
way  be  impaired  thereby. 

Mr.  NICOLL  wished  the  committee  also  to 
enquire  into  the  propriety  of  dispensing  with  jury 
trials  altogether,  in  common  law  casesj  on  consent 
of  parties,  a  proposition  which  Mr.  SN.  said  he 
would  reduce  (••  writing  and  offer  separately. 

Mr.  TOWNSF.ND  wished  the  gentleman  from 
Oswego  (Mr.  HART,)  not  to  fix  any  number  ol 
petit  jurors;  but  to  leave  that  blank;  less  than 
eight  might  be  considered  sufficient  by  the  com- 
mittee. 

Mr.  HART  preferred  to  have  that  number  in- 
serted. 

The  resolution  was  adopted. 

DUTIES  OF  JURORS. 

Mr.  BERGEN  moved  the  following: 

Resolved,  That  it  be  referred  to  the  committee  on  the 
powers  and  duties  of  the  legislature,  except,  &c.  to  take  into 
consideration  and  enquire  into  the  expediency  and  proprie- 
ty of  limiting  the  power  of  the  legislature  in  exempting  in- 
dividuals from  jury  duty. 

Adopted. 

APPOINTMENT  AND  FEES,  &c.,  OF  JUDICIAL  OF- 
FICERS—COURT OF  ERRORS. 
Mr.  KIRKLAND  said  that  as  some  4  or  5  days 
must  intervene  before  we  should  get  the  repoits 
01  the  committees  so  as  to  have  them  to  act  upon. 
He  thought  that  interim  could  be  very  profitably 
and  instructively  employed  in  discussions  on  this 
floor  of  general  subjects  to  be  proposed  here  • 
and  in  interchanging  sentiments.  These  would 
go  abroad  through  the  press,  and  perhaps  we 
should  then  get  back  to  us  the  views  of  our  own 
constituents  on  these  subjects  through  the  same 
medium;  an  instruction  which  could  not  be  other- 
wise than  valuable  to  us.  He  knew  no  better  way 


of  arriving  at  this  result  than  by  resolutions  of  in- 
structions;  and  tor  that  reason  he  had  prepared  2 
or  3  resolutions,  which  he  proposed  to  have  printed 
and  laid  on  the  Uble. 

Mr.  STETSON  *  You  cannot  discuss  them  if 
they  are  laid  on  the  table. 

Mr.  KIRKLAND  said,  then,  that  he  would— 

Mr.  STRONG  rose  to  a  question  of  order.  A 
serious  question  might  arise  here,  as  to  whether 
any  gentleman  had  a  right  to  offer  more  than  one 
resolution  at  a  time  ;  because  if  they  could  do  this, 
why  some  gentleman  might  get  up  and  offer  a  lot 
of  resolutions  in  gross,  and  block  up  the  way  so 
that  gentlemen,  who  were  as  diffident  as  he  was, 
[laughter,]  would  not  be  able  to  get  along  at  all. — 
[Laughter.]  He  had  seen  this  sort  of  business  prac- 
tised to  a  great — to  some  extent ;  but  it  was,  as  he 
thought,  quite  a  small  business,  compared  to  what 
was  proposed  now.  [Laughter.]  He  cared  no- 
thing about  it  himself;  but  it  is  getting  to  be  a  big 
business,  and  ought  lobe  taken  in  hand.  He  wish- 
ed the  Chair  to  decide  whether  it  was  in  order  to 
allow  more  than  one  resolution  to  be  presented  at 
a  time,  so  that  we  could  have  the  matter  settled  at 
once. 

The  PRESIDENT  said  that  he  thought  perhaps 
more  than  one  at  a  tim.3  might  be  presented  to  the 
chair  for  the  purpose  of  being  laid  on  the  table  ; 
but  that  only  one  could  be  considered  at  a  time. 

Mr.  STRONG  said  he  saw  no  difference  between 
presenting  to  lay  on  the  table,  or  considering. 
There  they  were,  and  they  could  be  called  up  at 
any  time  ;  this  ought  not  to  make  any  difference 
as  to  the  number  a  member  was  allowed  to  offer. 
He  did  not  care  himself  how  the  resolution  was  ac- 
ted upon — but  it  might  be  ra'her  a  grievous  thing 
to  some  people  who  are  naturally  bashful.  (In- 
creased laughter.) 

The  following  resolutions  were  then  sent  up  by 
Mr.  KIRKLAND: 

Resolved,  That  the  committee  on  the  judiciary  be  in- 
structed to  report  an  amendment  of  the  Constitution  abol- 
ishing the  Court  for  the  Correction  of  Errors,  as  at  present 
organized,  and  proposing  a  suitable  substitute  therefor. 

Resolved,  That  the  committee  on  the  judiciary  be  in- 
structed to  report  an  amendment  of  the  Constitution  de- 
priving judicial  officers  of  all  powers  to  appoint  to  office. 

Resolved,  That  the  committee  on  the  judiciary  be  in- 
structed to  report  an  amendment  to  the  Constitution  pro- 
hibiting all  judges  of  courts  (except  justices  of  the  peace) 
from  receiving  any  fees  or  perquisites  for  official  services 

Mr.  WORDEN  moved  that  the  resolutions  be 
printed. 

Mr.  TALLMADGE  enquired  if  the  resolutions 
covered  the  whole  ground  the  gentleman  desired. 
Did  the  resolution  in  relation  to  the  jndiciary 
say  that  the  judges  shall  not  receive  any  fees  or 
compensation  other  than  their  salaries? 

Mr.  KIRKLAND  said  the  resolution  expressed 
precisely  what  he  desired,  so  far  as  words  could 
be  made  to  do  so. 

Mr.  TALLMADGE  again  rose,  when     * 

Mr.  CHATFIELD  said  this  debate  was  not  in 
order. 

Mr.  TALLMADGE  said  that  he  would  be  in 
order,  by  going  on  to  show  that  these  resolu- 
tions ought  not  to  be  printed  unless  made  more 
comprehensive.  He  wanted  it  to  cover  the  pay- 
ment of  judges  and  clerks  of  these  Courts.  If 
one  may  believe  what  is  said,  the  judges  of  Courts 
are  in  the  habit  of  adding  .to  their  salaries,  by 
dividing  with  their  clerks — so  much  more  lu- 


86 


crative  was  the  latter  office.       He  wished  to 
know  if  that  was  provided  for. 

Mr.  KIRKLAND  said  that  the  gentleman  had 
stated  a  case  of  corruption.  He  meant  to  apply 
the  resolution  to  cases  as  the  law  now  is,  and  not 
to  cases  of  official  corruption. 

The  motion  to  print  was  agreed  to,  and  the  re- 
solutions suffered  to  lie  on  the  table. 

DISTRICT  ATTORNEYS— THEIR  FEES. 

Mr.  BRUCE  offered  a  resolution  directing  an 
enquiry,  through  the  Secretary  of  State,  to  the 
several  district  attorneys  for  the  fees  and  com- 
pensation charged  and  received  by  them  in  the 
year  '45. 

Mr.  BERGEN  suggested  that  in  many  counties 
— Kings,  for  instance,  the  District  Attorney  was 
a  salaried  officer. 

Mr.  BRUCE  said  that  the  resolution  related  to 
fees  or  compensation  and  therefore  covered  the 
whole  ground. 

Mr.  STETSON  said  that  these  officers  were 
now  required  to  file  annually  in  the  office  of  the 
Secretary  of  State  copies  of  his  minutes.  All  the  in- 
iormation  sought,  could  be  obtained  at  that  office,  if 
the  district  attornies  of  the  State  all  did  their 
duty.  The  interrogatories,  should  be  ad- 
dressed only  to  those  who  had  neglected  to  dis- 
charge this  duty. 

Mr.  CRUOKER  suggested  that  the  resolution  be 
laid  on  the  table  until  this  fact  was  ascertained. 

Mr.  BRUCE  had  no  objection,  and  the  resolu- 
tion was  so  disposed  of. 

THE  COURTS  FOR  THE  CORRECTION  OF  ERRORS 
AND  OF  CHANCERY. 

Mr.  SWACKHAMER  offered  the  following  re- 
solution: 

2.  Resolved,  That  the  committee  on  the  judiciary  fce  re. 
quested    to  inquire  into  the  practicability  of  abolishing 
the   court  ior  the  correction  of    errors,  and  the  court  of 
chancery— and  the  establishment  in  lieu  thereof  of  a  court 
of  law  and  equity ,  divested  of  legislative  functions,  harmoni- 
zing with  the  present  enlightened  public  sentiment,  and 
strictly  in  consonance  with  our  liberal  institutions — and  of 
fixing  a  limitation  as  to  the  time  within  which  decisions 
shall  be  made  by  the  courts  of  this  state,  restricting  suitors 
to  one  appeal,  and  on  the  expediency  of  establishing  a 
court  of  conciliation. 

Adopted. 

COLLECTION  AND  DISBURSEMENT  OF  THE 
PUBLIC  REVENUE. 

Mr.  SHEPARD  had  a  resolution  which  in  the 
present  good  temper  of  the  Convention,  he  hoped 
would  be  regarded  with  favor.  He  had  madft  it 
specific  for  the  sake  of  meeting  the  require- 
ments of  his  friend  from  Ontario  (Mr.  WORDEN). 
The  following  was  the  resolution  : 

2  Resolved,  That  the  propriety  of  providing  for  the  col- 
lection of  the  public  revenue  of  this  State,  in  the  current 
coin  ofLthe  U.  S.  be  and  hereby  is  referred  to  the  commit 
tee  on  fee  public  revenues. 

THE  EQUALIZATION  OF  TAXATION 
Mr.  LOOMIS  offered  the  following  resolution,: 

3.  Resolved,  That  it  be  referred  to  the  committee  on  the 
powers  and  duties  of  local  officers  to  inquire  into  the  expe- 
diency of  making  constitutional  provision  to  equalize  di- 
rect taxation,  and  to  make  it  proportionate  to  the  actual 
value  oi  the  estate  of  the  individual  taxed,  regardless  of 
the  distinction  between  real  and  personal  estate. 

The  resolution  was  adopted. 
Mr.  L.   said  that  in  submitting  these  proposi. 
tions  for  consideration,  he  entertained  some  doubt 


as  to  the  proper  committee  to  which  it  should  be 
referred.  He  would  have  referred  it  to  the  one 
on  the  finances  of  the  State,  were  it  not  for  the 
fear  thai  it  would  overburthen  a  committee  already 
charged  with  a  high  and  important  duty.  The 
point  included  in  the  resolution,  was  this — in  lo- 
cal assessments  of  taxation,  individuals  are  assess- 
ed or  taxed  upon  the  whole  value  of  the  real  es- 
tate in  their  possession,  regltdless  oi  its  liabilities, 
whereas  in  respect  to  personal  estate  it  is  only 
assessed  on  the  amount  in  possession,  less  the 
amount  of  liabilities.  By  this  means  the  farming 
interest  of  the  country  bears  an  undue  proportion 
of  the  public  burdens  in  direct  taxation.  A  large 
share  of  the  farms  in  the  country,  as  well  as  city  lots 
and  town  lots,  are  under  mortgage  and  other  liens 
and  yet  the  assessments  on  them  were  to  their  full 
value.  He  made  this  statement  in  explanation  of 
the  object  of  the  resolution,  and  to  call  public  at- 
tention to  the  consideration  of  the  subject.  He 
moved  to  refer  it  to  the  committee  to  whom  was 
referred  the  subject  of  local  officers.. 

The  resolution  was  so  referred. 

Mr.  MORRIS  proposed  the  following  rule  : 

4  Resolved,  That  members, in  presenting  subjects  for  the 
consideration  of  the  Convention,  present  them  as  the  pro- 
position of  the  member:— and  that  the  President  shall  refer 
them  to  an  appropriate  committee,  unless  some  other  refe- 
rence be  ordered  by  the  Convention. 

Mr.  M.  said  that  under  this  rule,  instead  of  the 
offering  of  a  resolution,  of  reference  being  required, 
the  President  could  send  it  to  the  proper  standing 
committees,  unless  otherwise  directed.  It  would 
thus  assimilate  to  the  manner  of  disposing  of  pe- 
titions in  the  legislature,  and  relieve  the  mem- 
bers from  all  embarrassment  in  voting  on  a  reso- 
lution of  reference. 

Mr.  TALLMADGE  suggested  that  the  gentle- 
man should  modify  his  resolution,  so  as  simply 
to  provide  that  any  gentleman  having  propositions 
should  send  them  to  the  Chair,  who  would  refer 
them  without  the  form  of  coming  through  the 
house. 

Mr.  MORRIS  intended  to  place  the  subject  on 
the  same  footing  as  are  petitions  in  the  Legisla- 
ture. 

Mr.  NICOLL  had  one  very  great  objection  to 
the  proposition.  It  compelled  members  to  come 
out  in  the  affirmative  on  every  proposition,  and 
he  apprehended  that  few  men  were  willing  to 
Commit  themselves  on  any  point  without  dis- 
cussion. He  thought  the  present  form  pursued, 
to  be  altogether  the  best. 

Mr.  W.  W.  TAYLOR  could  see  no  necessity  for 
the  adoption  of  such  a  resolution  as  this.  It  would 
only  tend  to  burden  the  Chair,  as  to  the  action  en 
the  matter.  Now  there  may  come  up  questions 
on  which  debate  may  arise  as  to  the  proper  com- 
mittee to  which  they  shall  be  sent.  It  appeared 
to  him  that  the  better  way  was  that  the  gentle- 
man who  proposes  a  resolution  should  move  its  re- 
ference to  a  particular  committee,  and  that  it  should 
be  so  referred  as  a  matter  of  course,  unless  it  was 
objected  to.  This  would  fa:ilitate  business  with- 
out involving  the  formaluy  of  putting  the  question 
— without  throwing  on  the  President  the  duty  of 
designating  the  committee  to  which  the  reference 
shall  be  made. 

Mr.  STEPHENS  concurred  in  the  views  sug- 
gested by  his  colleague  (Mr.  NICOLL).  The  adop- 


87 


tion  of  this  resolution  would  make  it  imperative 
on  a  member  to  assume  the  affirmative  on  every 
proposition  he  might  offer.  The  submission  of  a 
question  to  a  committee,  although  merely  one  of 
enquiry  would  be  considered  as  committing  the 
mover  to  its  propositions.  He  had  this  morning 
received  a  letter  from  one  of  his  constituents  re- 
questing him  to  make  a  suggestion,  which  on  some 
future  occasion  in  accordance  with  that  request 
he  might  take  it  upon  himself  to  do.  His  own 
toind  was  not  made  up  as  to  its  propriety,  yet  he 
should  out  of  respect  to  a  friend  whom  he  va 
lued  very  highly,  submit  the  proposition  for  the 
consideration  of  the  Convention.  Under  the  re- 
solution now  pending,  he  would  not  be  able  to  do 
so  without  committing  himself,  which  he  was  not 
prepared  to  do — and  therefore  he  would  be  cut  off 
from  a  chance  of  presenting  it  at  all.  He  thought 
every  opportunity  should  be  offered  for  a  free  ex- 
pression of  the  will  of  the  constituency. 

Mr.  HOFFMAN  hoped  this  proposition  would 
be  withdrawn.  It  was  a  rule,  and  all  rules  were 
ropes  around  the  necks  of  members.  If  the  rules 
stand  as  they  now  are,  it  will  be  competent  for 
every  member  of  the  Convention  to  present  each 
subject  as  his  own,  if  he  pleases — or  as  a  mere  na- 
ked matter  of  enquiry  if  he  chooses — or  a  matter 
of  notice  from  the  house  to  the  committee,  to 
control  its  action.  And  it  would  be  competent 
for  the  same  members,  or  for  any  other  to  move 
a  reference  of  the  matter  to  any  committee,  be- 
fore the  question,  was  taken  on  it — and  that  mo- 
tion had  priority  and  preference.  It  would  be 
seen,  then,  that  if  matters  were  left  as  they  now 
stand,  every  member  would  be  at  liberty  to  take 
the  course  his  own  good  sense  should  suggest  as 
the  proper  one — but  if  we  adopted  this  rule,  he 
would  be  straitened  in  his  actions.  For  a-  person 
who  entertained  doubts,  whose  mind  was  not 
made  up,  could  not  draw  a  resolution  in  the  form 
saying  "  I  think  thus."  And  next— by  the  very 
form  of  the  order,  each  resolution  would  be  under 
the  influence  of  the  rules  that  it  be  sent  to 
a  committee.  The  question  now  had  a  priority,  and 
it  was  Tletermined  by  a  vote  whether  it  should  go 
to  a  committee  or  not.  Under  the  gentleman's 
proposition  a  member  has  no  possible  mode  of 
keeping  a  question  before  the  Convention,  even 
until  he  could  explain  the  reasons  for  making  it, 
which  he  thought,  would  be  abridging  the  rights 
of  discussion  further  than  his  friend  from  New- 
York  supposed.  If  any  question  was  presented  here 
which  the  Convention  might  think  ought  not  to 
be  agitated,  it  would  be  perfectly  competent  for  a 
member  to  raise  an  objection  to  its  reception, 
when  the  question  would  be,  shall  the  resolution 
be  received?  It  appeared  to  him  that  the  ordinary 
parliamentary  practice  in  the  existing  rules  was 
entirely  superior  to  what  it  would  be  if  limited  by 
the  present  proposition.  And  he  was  very  cer. 
tain  that  the  Convention  would  find  it  very  con. 
venient  and  safe,  and  perhaps  indispensably  ne- 
cessary, in  no  case  to  adopt  any  rule  until  they 
had  a  day  or  two  to  consider  it. 

Mr.  MORRIS  then  consented  that  his  resolution 
should  lay  on  the  table  for  the  present,  and  it 
was  so  disposed  of. 

AN  ASSISTANT  SECRETARY. 
Mr.  HART  submitted  the  following  resolution : 


Resolved,  That  Thomas  J.  Loomis,  be  and  he  hereby  it 
appointed  an  assistant  secretary  to  this  convention. 

Mr.  PATTERSON  had  supposed  that  two  sec- 
retaries would  have  been  as  many  as  the  business 
of  the  Convention  would  require,  and  he  thought 
now,  that  if  two  experienced  individuals  had  been 
selected,  they  could  have  done  all  the  business. — 
But  he  was  not  quite  certain  now  that  they  could 
get  along  without  some  additional  help.  One  of  the 
Secretaries,  indeed,  as  he  understood,  was  out  of 
health  ;  the  other  he  had  no  doubt  with  experience 
enough  would  make  a  good  secretary,  but  from 
what  he  had  seen,  he  was  pretty  well  satisfied 
;hat  we  were  not  lo  get  along  without  some  addi- 
tional help  in  that  department.  In  the  organiza- 
tion of  the  Convention,  the  chair  would  bear  him 
out  in  saying  that,  for  one,  so  far  as  the  regu. 
ular  officers  of  the  Convention  were  concerned,  he 
had  taken  no  part,  nor  had  any  of  the  minority 
who  acted  with  him.  It  was  left  entirely  to  the 
majority  of  the  Convention — they  selected  their 
own  officers  and  appointed  them — but  he  did  sup- 
pose for  himself,  that  in  the  organization  of  a 
Convention  like  this  the  majority  would  have 
deemed  it  expedient  that  at  least  one  of  the  Sec- 
retaries  should  be  an  individual  entertaining  the 
views  of  the  minoriiy.  In  this,  he  confessed  he  had 
been  disappointed,  and  he  would  now  appeal  to  the 
majority,  and  enquire  of  them,  if  they  appoint  an 
additional  Secretary,  whether  in  courtesy  to  the 
minority,  they  ought  not  concede  to  us  one  Sec- 
retary, if  we  should  name  a  competent  man  todis* 
chaige  the  duties.  He  did  notask  it  as  a  personal 
favor  to  himself,  because  he  had  no  favors  to  ask. 
He  proposed  to  amend  the  resolution  by  striking 
out  the  name  cf  Mr.  Loornis — with  whom  he  had 
no  acquaintance — of  whom  he  had  never  heard  be- 
fore this  moment — of  whose  exprience  he  knew 
nothing,  though  he  took  it  for.  granted  if  he  had 
been  experienced  he  would  have  known  of  it — and 
insert  the  name  of  Philander  B.  Prindle  of  Che- 
nango  co.  He  made  the  motion,  knowing  as  he 
did  that  there  was  no  man  better  qualified  to  dis- 
charge the  dutiesof  the  office.  He  would  not  say 
that  Mr.  P.  was  superior  to  any  man,  but  he  would 
say  that  no  man  was  superior  to  him.  He  had 
had  long  experience  in  this  house,— as  clerk  for 
two  years,  and  as  deputv  clerk  for  two  years,  and 
he  (Mr.  P.)  could  appeal  to  gentlemen  who  w<  re 
here  during  that  time  to  bear  him  out  in  the  as- 
sertion that  no  man  could  discharge  the  duties  bet- 
ter than  did  Mr.  Prindle.  He  appealed  to  gentle- 
men of  the  minority  not  only,  but  to  those  of  the 
majority — and  would  ask  them  if  they  had  ever 
known  an  officer  who  discharged  his  duties  with 
greater  ability  and  satisfaction^  all,  than  did  Mr. 
Prindle?  He  made  this  appeal  with  entire  confi- 
dence, arid  if  another  Secretary  was  to  be  appoint- 
ed, let  us  select  a  man  who  is  known  to  be  com- 
petent. Do  not  let  us  blunder  along  any  further, 
but  let  the  business  of  the  Convention  progress  ra- 
pidly. He  had  no  feeling  for  one  man  or  another 
— he  could  name  a  great  many  who  could  dis- 
charge these  duties  well,  but  he  could  not  think 
ofc  any  one  who  would  do  it  better  than  Mr. 
Prindle. 

Mr.  WARD  hoped  the  resolution  would  be  ac- 
ted upon  in  blank,  so  that  the  sense  of  the  Con- 
vention should  be  first  taken  as  to  whether  an  ad- 
ditional Secretary  was  required  or  not.  If  it  was 


88 


decided  to  have  another,  he  could  be  chosen  by 
ballot  or  viva  voce,  as  might  be  desired.  It  was  cer- 
tainly  better  that  the  Convention  should  designate 
him,  than  that  the  Clerks  should  hire  one  them 
selves,  which  it  was  not  within  their  power  to  do 
It  was  not  within  the  power  of  one  or  even  two 
gentlemen  to  get  up  and  make  out  a  journal  with- 
out further  help.  They  have  employed  some  per- 
son, and  they  must  pay  him  out  of  their  own 
pockets  or  ask  a  future  Legislature  to  do 
it.  It  was  better  to  settle  the  question  now,  and 
if  we  should  say  further  aid  was  required,  as  he 
had  no  doubt  it'was,  that  this  aid  should  be  order- 
ed by  us.  He  hoped  gentlemen  would  consent  to 
this  course — first  to  take  the  question  in  blank 
whether  we  should  have  a  Secretary  or  not. 

Mr.  HART  had  no  objection  to  the  resolution 
being  left  in  blank. 

Mr.  SHEPARD  said  that  as  ihis  was  a  matter 
which  required  some  littledeliberatiou,  he  would 
move  that  the  resolution  lie  on  the  table. 

The  Convention  refused  to  do  this. 

Mr.  CROOKER  suggested  that  the  word  "  As. 
sistant"  should  be  stricken  out,  so  as  to  come  with- 
in the  Convention  act,  which  said  nothing  about 
Assistant  Secretaries. 

Mr.  ANGEL  offered  as  a  substitute,  the  follow- 
ing:— 

Resolved,  That  the  Convention  will  proceed  on  Monday 
next  at  12  M.  to  elect  an  Assistant  Secretary. 

Mr.  A.  W.  YOUNG  opposed  the  postponement 
till  Monday.  There  was  now  no  lack  of  candi- 
dates. 

Mr.  RHOADES  asked  if  the  election  was  to  be 
determined  by  ballot  ? 

Mr.  ANGEL  had  not  thought  of  the  matter,  and 
he  supposed  the  Convention  would  determine. — 
It  was  said  that  we  ought  not  to  select  a  Secretary 
with  whose  qualifications  we  were  not  acquainted; 
and  he  wanted  a  little  time  to  enquire  who  was 
qualified  and  who  was  not. 

Mr.  WATERBURY  said  it  seems  now  that  one 
of  the  Secretaries  was  not  qualified  for  want  ol 
health.  He  thought  it  would  be  better  then  to 
test  the  applicants  by  hearing  them  read  at  the 
desk. 

Mr.  SWACKHAMER  declared  that  he  would 
not  rote  for  a  man  until  he  had  heard  him  read. 

Mr.  STRONG  said  that  gentlemen  seemed  to  be 
alarmed  lest  some  one  shall  be  appointed  who  is 
not  competent  for  the  duties  of  the  office !  Whe- 
ther gentleman  came  to  that  conclusion  from  the 
appointments  that  had  already  been  made,  it  was 
not  for  him  to  say,  but  he  appealed  to  the  gentle- 
man from  Kings  (Mr.  SWACKHAMER,)  whether  if 
we  appointed  Philander  B.  Prindle,  he  did  not 
know  from  experience,  that  his  equal  was  not  in 
the  Empire  State J  He  will  do  more  business  in 
one  hour  than  is  done  now  in  two — and  the  gen- 
tleman will  assent  to  that  ?  He  is  the  most  ready 
man  to  read  writing — and  sometimes  I  have  thought 
even  when  it  dicj.  not  exist— that  I  ever  saw. 
[Laughter.]  He  would  read  any  man's  hand,  tho' 
no  better  than  "  quail  tracks,"  or  a  lawyer's,  which 
was  next  to  "  quail  tracks."  [Great  laughter.]— 
He  was  always  sure  to  read  it  right,  for  if  genil<?. 
men  did  not  write  it  righl,  he  would  read  it  right. 
[Renewed  laughter.]  There  was  no  mistake  about 
his  getting  thro'  it.  If,  therefore,  the  majority  had 
the  magnanimity  to  select  one  from  the  minority 


there  would  be  no  difficulty  in  the  choice— it  need 
not  be  put  off  for  a  morrtent.  But  if  it  was  the 
determination  of  the  majority  to  select  one  of  their 
own  party,  then  it  might  become  necessary  to  cast 
around — to  have  a  caucus  and  look  fora  man.  Now 
he  asked,  with  a  good  deal  of  confidence,  of  gen- 
tlemen in  a  body  like  this,  to  let  us  have  the  pri- 
vilege of  selecting  the  very  man  we  all  want,  and 
whom  we  would  all  select  if  it  were  not  tor  his  po- 
litical creed.  But  that  would  have  nothing  to  do 
with  the  discharge  of  his  duties. 

Mr.  SWACKHAMER  said  that  in  reply  to  the 
very  strong  appeal  from  his  friend  last  up,  he 
concurred  in  the  opinion  that  Mr.  PRINDLE  was 
a  perfect  gentleman,  and  as  able  a  man  as  a  Sec- 
retary, as  he  had  ever  known  in  his  life.  He  was 
fully  equal  to  the  task  of  being  Secretary  to  this 
or  any  other  body.  There  may  be  his  equal  in 
the  State,  but  he  (Mr.  S.)  had  yet  to  meet  with 
him.  He  wished  here,  in  explanation  to  remark, 
that  the  gentlemen  already  selected,  he  as  fully 
appreciated  as  any  could,  both  as  gentlemen  and 
scholars,  but  it  required  peculiar  qualifications 
for  a  reader  to  a  body  of  this  kind,  that  very  few 
possessed,  and  it  was  therefore,  that  he  made  the 
remark  that  he  would  not  vote  for  any  one — caucus, 
or  no  caucus — unless  he  had  been  tested.  In  re- 
lation to  giving  to  the  minority  the  individual  to 
be  appointed,  he  conceded  it  would  be  right.  He 
deprecated  party  allusions,  in  our  discussions,  and 
members  evidently  sought  to  avoid  them,  and 
but  once  previous  to  to-day,  there  had  been 
one,  and  that  a  very  silly  and  foolish  allusion  to 
party.  He  hoped  the  proceedings  would  be  so 
conducted  that  party  and  faction  would  not  be 
heeded,  and  so  as  to  reflect  good  and  happiness, 
on  the  whole  people  of  the  State.  While  he  con- 
ceded this  to  Mr.  PRINDLE,  it  was  but  justice  to 
remark,  that  he  had  heard  others  named,  who 
were  equally  experienced — as  Mr.  ROSE,  Mr. 
SEGER,  and  Mr.  DEAN,  the  late  Clerk. 

Mr.  CHATF1ELU  said  that,  inasmuch  as  the 
resolution  was  offered  at  his  solicitation,  he  felt 
called  upon  to  make  a  few  remarks  as  to  the  pro. 
priety  of  its  adoption.  He  must  express  his  ex. 
ceeding  regret  that  any  gentleman  on  this  floor 
should  have  so  far  forgotten  the  usual  courtesies 
of  life,  as  to  cast  imputations  upon  the  present 
Secretaries.  'So  far  as  he  had  observed,  he  was 
free  to  confess  that  the  gentlemen  appointed  had 
fully  answered  his  expectations,and  had  discharged 
the  duty  devolved  upon  them  with  fidelity  and  an 
earnest  desire  to  facilitate  and  discharge  business. 
It  was  not  to  be  expected  that  genilemen,  coming 
here  from  other  avocations,  without  experience  as 
Clerks  of  Legislative  bodies,  should  be  as  well 
qualified  to  discharge  the  duties  of  Secretary  as 
men  who  had  experience.  He  had  no  doubt  that 
the  present  Secretaries,  with  a  very  little  experi- 
ence, would  answer  the  expectations  of  all.  He 
was  persuaded  himself  that  the  duties  of  the  posi- 
tion required  more  help,  from  the  vast  amount  of 
business  cast  upon  it.  It  was  too  much  for  any 
two  men  to  discharge,  and  under  that  view,  he 
had  inserted  the  name  of  a  gentleman  who  was  in 
every  way  competent  as  assistant  Secretary.  He 
had  yet  to  learn  that  this  was  not  a  Secretary 
within  the  purview  of  the  act,  and  the  objection 
of  the  gentleman  from  Cattaraugus  (Mr.  CROOKER) 
to  say  the  least,  was  certainly  hypercritical.  The 


89 


gentleman  named  was  a  member  of  the  legislature 
last  winter,  was  a  ripe  scholar,  a  beautiful  writer, 
and  in  every  way  qualified  for  the  post.  He  had 
inserted  his  name  also  for  another  reason,  he  was 
here  before  us  at  the  organization,  seeking  the 
place  of  Secretary,  but  when  he  found  that  other 
names  were  proposed  whom  he  supposed  to  be 
better  qualified,  he  very  cheerfully  withdrew  his 
own.  He  thought  it  was  therefore  no  more  than 
fair  and  honorable  that  he  should  receive  the  ap- 
pointment now.  The  gentlemen  from  Chautau. 
que  and  Monroe  had  asked  the  majority,as  a  mat- 
ter  of  magnanimity,to  yield  to  them  a  Secretary  of 
the  party  to  which  they  belong.  Now,  he  would 
ask,  if  they  held  the  majority  here,  and  were  re- 
sponsible as  such  and  the  minority  should  ask  this 
magnanimity  at  their  hands,  if  it  would  be  regard- 
ed? He  would  ask  them  if  when  the  Constitution 
was  framed  and  sent  to  the  people,  they  would 
not  take  the  stump  for  or  against  it,  and  cast  the 
responsibility  of  the  action  here  upon  the  majority? 
He  knew  enough  of  political  action  and  party  to 
believe  that  such  would  be  the  result.  And  in. 
asmuch  as  the  majority  would  be  required  to  take 
this  responsibility,  they  should  have  Secretaries 
of  their  own  choice,  and  not  those  whose  respon- 
sibility they  might  not  be  willing  to  assume.  The 
gentleman  from  Monroe  had  suggested  the  best  of 
all  reasons  why  this  man  Prindle  should  not  be 
appointed — that  he  read  wrtimg  that  was  not  writ- 
ten—not  found  in  the  proposition  sent  up.  Per- 
haps the  gentleman  made  the  assertion  from 
some  knowledge  of  the  fact,  and  if  he  did,  he  (Mr. 
C.)  would  second  the  proposition.  He  had  been 
here  with  that  gentleman,  and  he  was  willing  to 
say  that  he  possessed  very  superior  qualifications, 
but  the  man  who  could  read  where  it  was  not, 
could  count  votes  on  a  division  where  they  did  not 
exist.  He  had  had  occasion  to  challenge  the 
count  of  that  c'erk,  and  in  the  2d  vote  the  result 
was  entirely  the  reverse  of  the  previous  one.  He 
wanted  no  man  here  whom  he  could  not  trust. 

Mr.  SIMMONS  did  not  think  this  subject  wor- 
thy of  any  grave  debate.  He  had  had  the  honor 
of  a  seat  on  this  floor  in  the  Assembly  during  3 
successive  years  of  Mr.  Prindle's  service,  and  he 
was  not  aware  during  all  that  period  that  any  sus 
p'icion  or  any  complaint  of  any  unfairness  or  dis 
honesty  existed  against  him,  and  he  was  really 
sorry  that  it  had  been  deemed  necessary  gravel) 
to  make  such  a  suggestion  in  this  body.  He  knew 
the  gentleman  from  Otsego  would  not  have  don< 
it,  if  he  had  not  been  provoked  by  the  indiscree 
suggestion  made,  as  a  joke  he  had  no  doubt,  by  the 
gentleman  from  Monroe  In  relation  to  the  gen 
tlemen  already  selected,  he  considered  that  all  the 
reflections  thrown  out  were  entirely  undeserved 
He  had  the  honor  of  a  long  acquaintance  with  on 
of  the  gentlemen,  and  for  a  short  time  with  th 
other,  and  he  had  seen  nothing  to  disapprove  in 
them  as  Secretaries.  He  did  not  hold  that  be 
cause  a  gentleman  had  well  rilled  a  place  for  se 
veral  years,  he  should  necessarily  be  continued  in  il 
He  believed  in  rotation  in  office.  If  a  man  ha 
received  the  patronage  of  this  party,  and  held  th 
office  of  Clerk  and  done  well,  his  pay  and  hono 
was  very  well  for  him,  and  it  is  well  enough  t 
try  others.  And  yet  it  was  very  important,  as 
matter  of  business,  that  the  Convention  shoul 
have  an  experienced  man,  and  he  considered,  i 

6 


lis  connection,  that  the  mode  of  choosing  inspect- 
rs  of  election,  where  one  was  allowed  totheminor- 
y,  as  a  very  good  thing.  He  should  like  to  see  the 
lea  adopted  in  a  parliamentary  body  of  this  kind, 
s  it  would,  he  believed,  have  the  tendency  of  keep- 
ig  all  parties  fair  and  square. 

Mr.  STETSON  was  exceedingly  happy  to  hear 

e  disclaimer  of  the  gentleman  from  Essex  (Mr. 
iMMONS,)with  respect  to  the  very  extraordinary 
llusions  made  by  the  gentlemen  from  Monroe 
nd  Chautauque.  But  it  was  with  considerable 
urprise  that  he  heard  both  gentlemen  in  conclu. 
ion,  making  an  appeal  to  the  magnanimity  of  the 
majority,  when  their  title  to  it  was  founded  al. 
nost  on  an  act  of  discourtesy.  The  remarks  of 
he  gentleman  from  Chatauque  were  a  direct  re- 
ection  on  the  present  Secretaries,  and  yet 
ie  appealed  almost  for  that  reason  to  us,  to  waive 
he  considerations  of  party  and  give  the  choice  to 
hem.  He  did  not  wish  to  meddle  with  the  ques- 
ion  of  political  magnanimity,  but  he  would  refer 
o  the  election  law  of  1842,  when  the  party  now  in 
he  ascendancy  were  so  then,and  where  the  minori- 
y  were  conceded  one  of  the  Inspectors  of  election. 
Would  the  minority  show  a  better  title.  He  was 
as  willing  as  one  to  cast  off  the  trammels  of  mere 
>arty,  yet  the  especial  circumstances  under 

hich  this  proposition  came  up  and  the  very  pe- 
uliar  manner  in  which  it  was  introduced,  caused 
lim  at  least  to  hesitate  in  this  instance. 

Mr.  PATTERSON  said  that  the  gentleman 
must  have  seriously  misunderstood  him.  There 
vas  nothing  against  the  present  secretaries  that 
.ould,  by  any  fair  construction,  be  put  on  hie 
anguage. 

Mr.  STETSON  understood  the  gentleman  to 

allude  to  the  failure  to  accomplish  the  duties  of  the 

iffice  which  he  attributed  to  the  wants  of  expe- 

ience,  and  to  say  also  that  one  or  two  men  could 

lave  accomplished  all  the  labor. 

.Mr.  PATTERSON  was  misunderstood,  if  he 
Tvas  understood  as  saying  any  such  thing.  -What 
ie  said  was,  that  if  the  Secretaries  had  more  ex- 
perience, they  would  make  very  good  officers,- but 
;hat  at  present  one  was  unwell,  and  the  other 
was  lacking  only  in  experience. This  was  no  reflec- 
;ion  on  the  Secretaries,  and  he  had  only  mentioned 
't,  to  show  the  necessity  for  further  help.  Why, 
f  it  was  thought  necessary  to  have  three  Secreta- 
ries, were  they  not  designated  when  the  caucus 
was  held  ?  But  it  was  supposed  two  were  suffi- 
cient, and  he  repeated  that  two  experienced  men 
would  have  been  able  to  discharge  all  the  duties. 
And  so  the  majority  must  have  thought  at  that 
time.  In  relation  to  the  question  of  magnanimi- 
ty, he  had  stated  that  so  far  as  he  was  concerned, 
he  had  no  favor  to  ask;  not  the  least.  He  was  ask- 
ed to  point  out  a  case  where  the  present  minor- 
ity when  in  a  majority,  had  ever  exercised  it. — 
He  would  refer  to  the  first  instance  of  the  kind  ever 
known  in  the  State.  In  the  year  1839,  when  the 
then  majority  (the  whigs)  gave  to  the  then  mino- 
rity, one  of  the  committee  or  tne  legislature  to  ex- 
amine the  Treasurer's  accounts.  This,  although 
practiced  by  both  parties  since,  had  never  been 
done  before.  If  it  was  thought  advisable  by  the 
majority  to  make  every  thing  political,  be  it  so; 
he  should  be  content.  He  had  supposed  that  he 
came  here  with  a  different  object  in  view;  and 
when  the  majority  came  to  vote  for  a  presiding 


90 


officer,  and  insisted  on  going  into  a  caucus,  he  re- 
gretted it  exceedingly.  All  he  asked  now  was 
that  the  majority  should  select  for  another  Secre- 
tary a  man  competent  to  discharge  the  duty. — 
None  could  do  it  better  than  Mr.  Prindle.  One 
word  in  relation  to  the  charges  the  gentleman 
from  Otsego  had  thought  proper  to  go  out  ot  his 
way  to  way  to  make  against  Mr.  Prindle. — 
He"  (Mr.  P.)  was  here  four  years  with 
him,  and  during  that  time  he  never  heard 
a  lisp  against  the  man,  either  from  the  rna. 
jority  or  the  minority.  The  gentleman  says  that 
he  made  a  miscount.  Well,  yesterday  the  Secre- 
tary of  the  Convention  miscounted,  or  he  (Mr.  P.) 
did,  for  he  was  counting  at  the  same  time  ;  but  he 
presumed  the  Secretary  intended  to  count  right. 
Hehad  no  doubt  that  Mr  Prindle  intended  to  count 
right,  and  he  was  unwilling;  that  any  attack  should 
be  made  on  him  here.  In  conclusion  Mr.  P.  said 
he  had  no  feeling  about  this  matter,  if  the  majori. 
ty  intended  to  select  a  Clerk  from  their  ranks — he 
was  content;  but  he  supposed  that  the  minority 
had  rights;  and  if  the  man  whose  name  he  had 
presented  was  appointed,  there  would  be  no  doubt 
of  business  progressing  to  the  entire  satisfaction 
of  all. 

Mr.  STETSON,  in  justice  to  the  gentleman 
from  Chautauque  ,would  state  that  all  he  meant  to 
say  before,  was,  that  the  appeal  to  the  magnanimi. 
ty  of  the  majority  was  not  very  much  commended 
to  their  acceptance  by  the  reflections  which  he 
thought  were  insinuated  against  the  Clerks. — 
He  (Mr.  S)  did  not  pass  upon  the  right  of 
the  minority.  The  general  course  of  the  gen- 
tleman's  remarks  had  gone  far  beyond  the  le- 
gitimate bearing  of  any  of  his  own.  He  had 
already  instanced  the  case  of  magnanimity  on 
the  part  of  the  majority  in  the  Election  law  of 
1842,  but  he  would  not  dwell  upon  this  con 
sideration,  he  did  not  wish  even  by  the  influence 
of  his  humble  example  to  contribute  to  political 
discussions  on  this  floor — he  would  leave  the  mat- 
ter  where  it  was.  He  begged  leave  to  add  a  word 
in  respect  to  the  clerks  that  ought  to  be  known 
abroad,  after  what  had  occurred  here.  The  man- 
ner of  making  up  the  journal  is  different  from  that 
of  1821 — different  from  that  of  Congress  or  the 
Legislature.  Here  every  thing  was  recorded,  even 
rejected  propositions,  and  the  proceedings  in  com- 
mittee of  the  whole.  And  any  gentleman  need 
only  to  have  given  his  attention  to  what  occurred 
here  this  morning  to  see  the  immense  amount  of 
clerical  labor  that  is  requited  to  be  performed. — 
He  agreed  with  the  gentleman  from  Chautauque 
that  we  should  have  experience  here,  and  he  be- 
lieved we  had  it  in  the  Secretary  from  Rensselaer 
(Mr.  STRONG,)  as  was  acknowledged  by  all.  He 
was  well  kno'wn  as  having  been  a  highly  distin- 
guished State  Senator  for  several  years,  and  as 
an  accomplished  scholar  and  distinguished  in  his 
profession.  Under  these  circumstances  he  should 
now  leave  the  question  with  the  Convention. — 
For  himself,  he  had  not  even  intimated  as  yet 
what  course  he  should  take. 

Mr.  RHOADES  did  not  know  that  his  friend 
from  Chautauque  (Mr.  PATTERSON)  had  said  any 
thing  derogatory  to  the  character  and  competency 
of  the  secretaries  of  the  Convention;  other  than 
that  one  was  absent  through  ill  health,  and  the 
other  was  wanting  experience.  He  did  not  listen 


:o  the  remarks  of  his  friend  from  Monroe  (Mr. 
STRONG,)  but  he  thought  Tie  knew  him  too  well, 
to  believe  that  he  would  stand  up  here  in  the  pre- 
sence of  the  Secretaries,  and  call  in  question  their 
qualifications  to  discharge  the  duties  of  their  offi- 
ces. He  thought,  therefore,  these  gentlemen  had 
been  improperly  charged. 

Mr.  STETSON  would  be  allowed  to  put  a  word 
in  here.  He  ought  to  have  said  before  to  his 
friend  from  Chautauque  after  his  declaimer,  that 
he  (Mr.  S.)  was  free  to  say  now  that  he  (Mr.  P.) 
had  no  such  intention,  because  he  avows  he  has 
not- 

Mr.  RHOADES  said  that  with  the  Secretary 
from  Rensselaer  he  had  the  pleasure  of  an  acquain- 
tance, and  had  had  the  honor  of  a  seat  with  him 
in  the  Senate,  and  he  regarded  him  in  every  thing 
but  health,  as  fully  as  competent  to  discharge  these 
duties  as  any  other  man.  He  had  seen  him  du- 
ring the  ill  health  of  the  Secretary  of  the  Senate, 
volunteer  to  discharge  his  duty,  and  he  did  it  with 
great  ability.  In  regard  to  the  other  Secretary, 
with  whom  he  had  not  the  pleasure  of  an  acquain- 
tance, he  must  say  that  all  be  had  exhibited  was 
a  want  of  experience  only,  and  great  diligence 
and  attention  to  his  duties,  and  he  had  no  doubt 
would  make  a  competent  Secretary,  when  he  had 
sufficient  time  to  become  more  familiar  with  the 
duties  of  the  station.  And  he  did  not  believe  that 
any  gentleman  of  the  party  to  which  he  belonged, 
would  either  publicly  or  privately  attempt  to  de- 
nounce or  to  speak  disparagingly  of  these  gentle- 
men. Something  had  been  said  about  an  appeal 
to  the  magnanimity  of  the  majority.  With  that 
he  had  nothing  to  do — no  appeals  to  make — no- 
thing to  ask  of  them.  In  fact  he  had  seen  but  lit- 
tle to  indicate  that  there  was  any  party  here. — 
The  gentleman  from  Otsego  talks  about  a  majority 
in  the  Convention  being  responsible  for  its  doings 
and  acts. 

Mr.  CHATFIELD  :  That  was  in  answer  to  the 
appeal  made  to  us  as  a  majority. 

Mr.  RHOADES  said  that  from  the  organization 
of  the  two  political  parties,  into  which  the  State 
was  divided,  it  might  not  be  expected  that  the  of- 
ficers of  the  Convention  would  be  distributed  oth- 
er than  among  the  majority.  But  he  put  it  to  gentle- 
men if  it  was  not  the  wishes  ot  their  constituents  that 
the  Convention  should  be  organized  without  there 
seeming  to  be  any  political  party  here.  It  was 
not  a  party  who  called  for  this  Convention — par- 
ties were  divided  upon  it — but  the  people  called 
for  it.  And  the  very  position  some  of  us  occupy 
on  this  floor  shows  that  the  people  did  not  carry 
party  feelings  into  that  election.  Look  at  Greene 
county,  where  there  was  one  gentleman  of  each 
party  elected.  Look  at  Chemung;  there  we  find 
those  who  are  called  democrats  and  whigs  uniting 
and  sending  a  gentleman  here  of  known  and  ac- 
knowledged talents,  by  a  very  large  majority  — 
There  were  other  counties. 

Mr.  CROOKER.     Onondaga,  for  instance. 

Mr.  RHOADES  was  about  to  allude  to  that,  He 
was  nominated  by  the  Whig  party,  then  by  a  con- 
vention of  a  party  who  called  themselves  Reform- 
ers, and  after  that'by  a  convention  of  the  Liberty 
party;  and  when  he  came  to  be  voted  for,  he  had 
good"  authority  for  saying  that  he  was  voted  for  by 
Whigs,  Liberty  men,  and  more  than  200  of  those 
who  called  themselves  Barnburners;  and  this  vote 


91 


was  garnished,  and  climaxed,  and  sprinkled  by 
some  Old  Hunkers.  He  was  not  here  then  he  ap- 
prehended, to  represent  party.  He  believed  that 
if  a  Secretary  was  appointed  from  among  the  mi- 
nority, it  would  have  a  very  salutary  effect  upon  the 
feelings  of  the  great  body  of  our  constituents. 

Mr.  VVILLARD  moved  that  the  Convention  ad- 
journ. Carried. 

And  the  Convention  adjourned  to  11  o'clock  to- 
morrow morning- 


FRIDAY,  (llth  day)  June  ]2. 

Prayer  by  the  Rev.  Mr.  BENSON. 

THE  STANDING  COMMITTEES. 

The  PRESIDENT  then  announced  the  names 
of  the  members  of  the  committees  in  the  order  in 
which  the  resolutions  were  passed  by  the  Conven- 
tion, as  follows : 

On  the  apportionment,  election,  tenure  of  office  and  com- 
pensation of  the  Legislature — Messrs.  W.Taylor,  R.  Camp- 
bell, jr.,  Salisbury,  White,  Burr,  Sanford,  W.  B.  Wright. 

On  the  powers  and  duties  of  the  Legislature,  except  as  to 
matters  otherwise  referred — Messrs.  Stetson,  Powers,  Mil- 
ler, St.  John,  Harrison,  J.  J.  Taylor,  McNitt. 

On  canals,  internal  improvements,  public  revenues  and 
property,  public  debt,  and  the  powers  and  duties  of  the  Le 
gislature  in  reference  thereto;  and  the  restrictions,  if  any, 
proper  to  be  imposed  upon  the  action  of  the  Legislature  in 
making  donations  from  the  public  funds,  and  in  making 
loans  of  the  moneys  or  credit  of  the  State— Messrs.  Hoft- 
man,  Tilden,  Gebhard,  jr.  Hunter,  W.  H.  Spencer,  Greene, 
Richmond. 

On  the  elective  franchise— the  qualification  to  vote  and 
hold  office— Messrs.  Bouck,  Gardner,  Kennedy,  Dodd,  Dor- 
Ion,  Wood,  E.  Huntington, 

On  election,  tenure  of  office,  compensation,  powers  and 
duties  (except  the  power  to  appoint  or  nominate  to  office) 
of  the  Governor  and  Lieutenant-Governor—Messrs.  Mor- 
ris, Porter,  Hyde,  Kingsley,  Penniman,  Clark,  Waterbury. 

On  the  election  or  appointment  of  all  officers,  other  than 
legislative  and  judicial,  and  the  Governor  and  Lieutenant- 
Governor,  whose  duties  and  powers  are  not  local,  and 
their  powers,  duties  and  compensation— Messrs.  Chatfield, 
Perkins,  Kemble,  Strong,  Nicholas,  Danforth,  Shaver. 

On  the  appointment  or  election  of  all  officers  whose  pow- 
ers and  duties  arc  local,  and  their  tenure  of  office,  powers, 
duties  and  compensation— Messrs.  Angel,  Jones,  Archer, 
Dubois  Maxwell,  Hawley,  Shaw. 

On  the  militia,  and  military  officers— Messrs.  Ward, 
Chamberlain,  McNeil,  Bruce,  Stanton,  Kernan,  A.  Wright. 

On  official  oaths  and  affirmations;  ond  the  competency  of 
witnesses,  and  oaths  and  affirmations  in  legal  and  equity 
•proceedings— Messrs.  Rhoades,  Baker,  Forsyth,  Cornell, 
Brundage,  Brayton,  Hotchkiss. 

On  the  judiciary,  and  the  appointment  or  election  of  ju. 
dicial  officers,  and  their  tenure  of  office  and  compensation 
— Mes'srs.  Ruggles,  O'Conor,  Kirkland,  Brown,  Jordan, 
Loomis,  Worden,  Bascom,  Simmons,  Patterson,  Hart,  Ste- 
phens, Sears. 

On  the  rights  and  privileges  of  the  citizens  of  this  State 
—Messrs.  Tallmadge,  Ayrault.Swackhamer,  Parish,  D.  D. 
Campbell,  Witbeck,  Yawger. 

On  education,  common  schools,  and  the  appropriate 
funds— Messrs.  Nicoll,  Munro,  Bowdish,  A.  W.  Youngr 
Tuthill,  Willard,  Hunt. 

On  future  amendments  and  revisions  of  the  Constitution 
.—Messrs.  Marvin,  Riker,  Vache,  Cook,  Nellis,  Graham, 
J.  Youngs. 

On  the  organization  and  power  of  cities  and  incorporated 
villages,  and  especially  their  power  of  taxation,  assess- 
ment, borrowing  money,  contracting  debts,  and  loaning 
their  credit— Messrs.  Murphy,  Allen,  Stow,  Mann,  Crook- 
er,  Van  Schoonhoven,  Sheldon. 

On  the  power  of  counties,  towns  and  other  municipal 
corporations,  except  cities  and  incorporated  villages,  and 
especially  their  powers  of  local  legislation,  taxation,  as- 
sessment,borrowing  money  and  contracting  debts— Messrs. 
Brown,  U.  Campbell,  jr.,  F.  F.  Backus,  Smith,  Tafll,  Flan- 
ders, Canute. 

On  the  currency  and  banking— Messrs.  Cambreleng, 
Russell,  Dorlon,  Townsend,  E.  Spencer,  Cuddeback,  Tag- 
gart. 

On   corporations  other  than  banking  or  municipal- 


Messrs.  Loomis,  Shepard,  Bergen,  Dana,  Conely,  H.  Back- 
us, Warren. 

On  the  creation  and  division  of  estates  in  lands— Messrs. 
Nelson,  Harris.Flanders,  Bull,  A.  Huntington,  Hutchinson, 
Clyde. 

AN  ASSISTANT  SECRETARY. 

Mr.  JORDAN  said  that  he  rose  to  offer  an 
amendment  (which  he  believed  was  perfectly  in 
order)  to  the  amendment  offered  yesterday  by  the 
gentleman  from  Allegany ;  and  to  which  he 
trusted  that  gentleman  would  offer  no  objection. 
The  question  when  we  adjourned  yesterday  was 
on  the  amendment  of  the  gentleman  from  Alle- 
gany, to  go  into  the  election  of  an  assistant  Sec- 
retary on  Monday  next.  The  amendment  which 
he  (Mr.  JORDAN)  had  to  offer,  was  to  strike  out 
"  Monday  next"  and  insert  "  immediately  by  bal- 
lot." 

Mr.  ANGEL  said  that  he  perceived  an  evi- 
dent disposition  on  the  part  of  the  members  of  the 
Convention  to  have  this  question  disposed  of  with- 
out any  further  delay.  And  therefore*  he  would 
offer  no  opposition  to  the  proposition  of  the  gen- 
tleman from  Columbia,  (Mr.  JORDAN.) 

The  PRESIDENT  then  said  that  the  amend- 
ment of  the  gentleman  from  Columbia,  (Mr.  JOR- 
DAN) was  in  order. 

Mr.  CHATFIELD  wished  to  know  if  by  the 
strict  parliamentary  rule,  the  resolution  which  he 
had  requested  his  friend  from  Oswego  (Mr. 
HART,)  to  present  yesterday,  when  he  (Mr.  C.) 
was  in  the  Chair,  was  now  under  his  control. 

The  PRESIDENT  replied  that  it  was. 

Mr.  HART  then  withdrew  the  resolution. 

THE  QUALIFICATIONS  OF  VOTERS. 

Mr.  GREENE  then  sent  up  the  following  reso- 
lution: 

Resolved,  That  the  committee  on  the  Elective  Franchise 
be  directed  to  inquire  and  report  to  the  Convention  as  to 
the  expediency  of  making  constitutional  provision,  requir- 
ing that  every  person  hereafter  to  become  a  voter,  except 
in  cases  of  physical  inability,  shall  be  able  to  both  read 
and  write. 

Mr.  JORDAN  said  that  he  would  then  offer  a 
resolution  similar  to  the 'one  withdrawn. 

The  PRESIDENT  said  that  there  was  already 
a  resolution  before  the  Convention — that  of  Mr. 
GREENE. 

Mi.  HOFFMAN  wished  to  make  one  suggestion 
to  the  gentleman  from  Jeffeisori,  (Mr.  GREENE) 
and  that  was  to  so  modify  his  resolution  as  to  strike 
out  the  word  "  requested,''  and  insert  the  word 
"  directed."  This  Convention  aid  not  request 
any  of  its  own  committees  •  it  directed  them  to  in- 
quire into  the  various  subjects  sent  to  them. 

Mr.  GREENE  consented  so  to  modify  his  reso- 
lution, and  it  was  adopted. 

Mr.  JORDAN  again  rose,  and  said  that  the  re- 
solution offered  by  the  gentleman  from  Oswego 
(Mr  HART)  yesterday,  and  the  amendments  there, 
to,  having  been  withdrawn,  he  would  now  offer 
a  resolution  similar  to  it. 

The  PRESIDENT  suggested  lhat  he  should  not 
offer  a  similarly  worded  resolution,  but  one  con- 
taining the  substance  of  the  one  just  withdrawn. 

Mr.  JORDAN  said  that  was  his  resolution,  and 
he  theiefure  offered  the  following: 

Resolved,  That  this  Convention  proceed  immediately  to 
jhe  election  of  an  assistant  Secretary  by  ballot. 

Mr-  CHATFIELD  said  that  he  should  move 
as  an  amendment  to  that  resolution,  this: — 


"Resolved,  That  the  President  and  Secretaries  of  this 
Convention  be,  and  they  are  hereby  authorised  to  appoint 
one  or  more  assistant  secretaries,  in  their  discretion." 

Mr.  PATTERSON  said  that  he  had  just  sent 
for  the  act  calling  this  Convention,  as  he  wished 
particularly  before  voting  to  ascertain  the  precise 
powers  of  the  convention  in  this  respect.  For  the 
question  arose  in  his  mind,  whether  the  amend- 
ment of  the  gentleman  from  Otsego,  (Mr.  CHAT- 
FIELD)  would  comply  with  the  requisitions  of  the 
act  he  had  just  alluded  to.  He  then  read  the 
8th  section  of  the  act,  which  says  that  the  Con 
vention  shall  have  the  power  to  elect  a  President 
by  ballot,  and  the  power  to  appoint  one  or  more 
Secretaries.  It  was  an  important  question  in  his 
mind  whether  we  could  transfer  that  power 
(thus  delegated  to  us,)  to  the  President  and  Secre- 
taries of  the  Convention.  He  doubted  very  much 
whether  this  could  be  done; — whether  it  was  not  a 
power  vested  solely  in  the  Convention  itself.  He 
was  not  disposed  to  take  up  any  time  in  the  dis 
cussion;  but  what  he  paiticularly  wished  to  get 
at  was,  whether,  if  we  were  to  have  another  sec- 
retary, his  appointment  must  not  proceed  direct 
from  the  Convention  itself.  Though,  individually 
the  cared  but  little  what  course  was  adopted. 

Mr.  CHATFIELD  contended  that  there  could 
not  of  course  be  a  doubt  that  the  Convention  had 
the  power  to  appoint  the  requisite  number  of  Se- 
cretaries to  transact  the  business  of  the  Conven- 
tion. The  act  said  "  one  or  more  Secretaries." 
Neither  was  there  any  doubt  that  the  Convention 
might  delegate  to  the  President  and  the  present 
Secretaries,  the  power  of  appointing  these  assis- 
tant Secretaries,  or  that  it  would  be  perfectly  legal 
and  in  strict  accordance  with  the  provisions  of  the 
act.  One  of  the  most  familiar  principles  of  the 
Common  Law  is,  that  whatever  was  done  by  a  sec- 
ondary power  under  the  direction  of  a  primary 
power  is  considered  to  be  the  act  of  the  principal. 
All  this  power  of  appointment  can  be  thus  delega- 
ted ;  if  this  be  not  the  case,  then  the  appointment 
of  the  doorkeeper  to  the  ladies  gallery  made  yes- 
terday, was  wrong ;  if  there  was  any  force  in  the 
argument  of  the  gentleman  from  Chautauque,  then 
the  appointment  of  the  messengers  here,  by  the 
President,  was  all  wrong  ;  and  neither  they  nor 
the  door  keeper  held  their  appointments  according 
to  law.  The  Convention  certainly  had  the  power 
to  make  its  appointments  in  such  a  way  as  the 
members  should  think  most  conducive  to  the  dis- 
patch of  business,  and  without  violating  the  spirit 
of  the  act.  He  had  proposed  this  plan,  because  he 
thought  that  the  President  and  the  Secretaries 
would  be  better  able  to  judge  what  Secretaries 
would  be  wanted,  and  when  they  would  be  want- 
ed, to  discharge  the  duties  of  the  office  ;  and  they 
could  fully  enquire  at  leisure  into  their  qualifica- 
tions for  efficiently  transacting  that  department  of 
the  business  of  this  Convention.  He  would  leave  the 
number,  to  be  appointed,  in  blank.  But  he  would 
add  "  not  to  exceed  two."  They  might  require  at 
least  two  more  Secretaries,  and  he  believed  they 
would ;  but  at  all  events  there  ought  to  be  a  limit, 
and  he  would  so  modify  his  amendment.  And 
this  plan  of  his  would,  after  all,  he  was  certain, 
be  found  the  best,  the  cheapest,  the  quickest,  and 
the  most  satisfactory  mode  of  proceeding  in  the 
matter. 

Mr.  WARD  said  that  he  most  decidedly  enter- 


tained the  opinion  that  the  power  to  appoint  these 
additional  Secretaries  restea  with  the  Convention, 
and  not  with  the  president  or  the  present  eecreta? 
ries.  If  he  could  entertain  a  different  opinion,  it 
would  aflbid  him  a  great  deal  of  pleasure;  and  he 
would  be  extremely  glad  to  delegate  this  appoint- 
ing power  to  those  gentlemen  ;  but  the  act  calling 
the  Convention  was  too  clear  on  this  subject  to  be 
misunderstood.  His  friend  from  Otsego  (Mr. 
CHATFIELD)  who  yesterday  caused  a  resolution 
to  be  offered  by  the  gentleman  from  Oswego  (Mr, 
HART)  for  the  appointment  of  an  assistant  Sec- 
retary, drew  up  that  resolutii  n  himself,  in  accor- 
dance with  this  view  of  the  question  ;  that  was  very 
apparent  from  the  tenor  of  the  resolution  itself* 
for  if  the  gentleman  had  not  then  entertained  such 
views  he  would  not  have  so  drawn  up  that  reso- 
lution. He  would  say  again,  that  he  was  convinc- 
ed there  was  not  force  enough  at  the  Clerk's  desk 
to  transact  the  important  and  fast  increasing  busi- 
ness of  the  Convention-  Just  at  this  time  the  Con- 
vention appeared  to  have  little  to  do  j  and  they 
can  as  well  go  on,  and  do  this  work  now — dispose 
of  this  matter  of  appointing  a  secretary— and  se. 
Itict  the  most  competent  person  they  could  find  to 
perform  the  duties.  He  hoped  they  would  pro- 
ceed at  once,  either  by  open  vote  or  by  ballot, 
either  way  he  would  be  satisfied  with.  To-day 
we  had  nothing;  to  do — to-morrow  we  will  get  a 
report  from  some  of  the  committees  ;  and  on  Mon- 
day we  shall  discuss  the  same.  Therefore  let  us 
do  up  this  business  at  once. 

Mr.  JORDAN  had  not  the  slightest  intention  or 
desire  to  take  up  the  time  of  the  convention  un- 
necessarily, either  on  this  or  any  other  subject. — 
He  offered  this  resolution  after  the  mover  had 
withdrawn  the  original  resolution, because  he  con- 
sidered it  highly  advisable  to  set  this  question  at 
rest ;  and  because  he  desired  to  have  a  proper 
number  of  Secretaries,  and  be  completely  organi- 
zed before  we  proceeded  to  the  transaction  of  the 
main  business  of  the  convention.  It  was  not  in 
the  least  a  matter  of  personal  leeling  with  him, 
either  one  way  or  the  other,  how  the  appointment 
was  made;  it  made  no  sort  of  difference  with  him 
whether  this  business  was  done  by  the  convention 
appointing  a  Secretary  by  name,  or  the  Secretaries 
should  appoint  him  themselves,  so  long  as  the  ap- 
pointment was  made  at  once  and  disposed  of.  He 
regretted,  however,  that  he  was  compelled  to  dif- 
fer from  his  learned  friend  froni  Otsego,  (Mr. 
CHATFIELD.)  in  regard  to  the  principle  of  com- 
mon law,  which  he,  (Mr.  C.)  had  alledged  would 
govern  in  cases  of  this  kind.  True,  it  is  a  maxim 
of  law  that  he  who  dors  an  act  by  another,  does 
it  by  himself ;  but  that  applies  only  to  our  indivi- 
dual concerns,  where  we  are  the  sole  fountains  of. 
power,  &c.  But  in  a  case  of  delegated  authority, 
either  by  a  power  of  attorney  or  by  statute,  &c., 
the  power  of  making  a  sub-delegation  o!  delegated 
authority,  he  apprehended,  does  not  exist.  And 
he  therefore  on  this  point  fully  agreed  with  the 
honorable  gentleman  from  Westchester,  (Mr. 
WARD,)  who  was  perfectly  correct  in  the  princi- 
ple which  he  had  laid  down,  as  to  the  power  of 
the  Convention  to  delegate  this  appointment  to  its 
own  officers.  With  regard  to  the  final  disposiiion 
of  this  question,  he  cared  not  in  the  least  what 
was  the  result;  but  he  most  earnestly  desired  to 
see  it  settled  in  some  way  immediately. 


93 


The  question  was  then  taken  on  the  amendment 
and  it  was  lost.  The  question  then  recurred  on 
the  resolution. 

Mr.  SWACKHAMER  suggested  to  Mr.  JOR- 
DAN  that  he  better  modify  his  resolution,  so  as  to 
make  it  read  "  An  additional  secretary,"  instead 
of  "  an  assistant  secretary." 

Mr.  JORDAN  was  pleased  with  the  suggestion, 
and  would  so  modify  it. 

Mr.  CHATFIELD  said  that  he  would  now  offer 
another  amendment  to  the  resolution  of  the  gen- 
tleman from  Columbia,  (Mr.  JORDAN)  which 
would  perhaps  be  more  fortunate  than  the  one  he 
had  just  offered.  He  would  move  to  strike  out 
the  words  «'  by  ballot ;"  and  to  insert 
"  Resolved,  that  each  member  shall  be  called  by  name  by 
the  Secretary  ;  and  as  his  name  is  called  he  shall  rise  in  his 
place,  and_openly  name  the  person,  for  whom  he  votes,  to 


Mr.  CHAMBERLAIN  called  for  a  division  of 
the  question  j  he  moved  first  to  take  the  question 
on  striking  out  the  words  «« by  ballot." 

Mr.  CHATFIELD  said  that  he  infinitely  pre- 
ferred the  mode  he  had  now  suggested,  for  the 
election  of  all  officers; — they  should,  in  his  hon- 
est opinion,  be  thus  elected,  except  those  that  had 
to  be  chosen  at  the  polls.  And  even  at  the  polls, 
he  believed,  the  best  and  fairest  way,  in  the  ab- 
stract, would  be  to  choose  the  candidates  by  viva 
voce  voting,  were  it  not  for  the  extreme  inconve- 
nience which  would  attend  that  plan  at  exciting 
elections,  and  where  a  very  large  number  vote. 
But  in  bodies  like  this  Convention,  or  in  legisla- 
tures (State  or  National)  he  sincerely  believed 
that  no  method  could  be  so  good  as  the  plan  of 
voting  viva  voce.  Besides  it  would  be,  in  this 
case,  (as  in  others,)  unquestionably  the  most  ex- 
peditious mode  of  dispatching  the  business,  for 
each  member  to  rise  in  his  place,  as  his  name 
should  be  cnlled,  and  name  the  person  for  whom 
he  wishes  to  cast  his  vote.  But  there  were  other 
considerations  also  that  influenced  him  (Mr  C  ) 
in  desiring  now  and  at  all  other  times  to  see  this 
plan  of  voting  adopted.  In  all  the  positions  in 
which  he  had  been  placed  (in  his  past  and  public 
career)  of  delegated  trust,  he  had  always  been 
ready  and  willing  to  assume  the  full  responsibility 
of  his  actions;  and  in  all  positions  of  a  similar 
character  which  he  might,  perhaps,  be  called 
upon  to  fill  hereafter,  he  never  would  shrink  from 
that  responsibility.  And  he  well  knew  that  if  all 
who  had  to  act  in  a  delegated  capacity  were  re 
quired  to  do  this — to  vole  viva  voce,  it  would  en- 
able  their  constituents  to  know  to  a  certainty  i 
these  delegates  had  acted  with  fidelity  and  ii 
strict  accordance  to  the  wishes  ot  the  one  party 
and  the  promises  of  the  other.  In  making  these 
remarks  he  intended  to  cast  no  reflection  upon  any 
of  the  gentlemen  now  present;  but  to  express  his 
decided  conviction  that  it  was  better  at  all  times 
for  the  cause  of  truth  and  morality — better  for  tht, 
general  and  social  welfare  of  our  fellow  men — bet 
ter— -far  better— for  the  great  and  diversified  inte- 
rests of  the  community  that  all  these  votes  shouk 
be  taken  openly  and  above  board. 

The  amendment  was  then  put  and  lost,  withou 
a  count,  the  house  refusing  to  vote  viva  voce. 

Mr.  WARD  then  said  that  the  question  would 
be  on  the  resolution  of  the  gentleman  from  Co- 
lumbia, (Mr.  JORDAN,^  to  go  immediately  into  a 
ballot  for  a  Secretary. 


The  PRESIDENT  put  the  question,  and  it  was 
arried,  nem.  con. 

The  ballot' for  Secretary  was  then  gone  into,  and 
he  result  was  announced  by  the  Secretary  to  be 
12  votes,  checked  oft' by  him. 

The  TELLER,  appointed  by  the  Chair,  Messrs. 
MORRIS  and  NICHOLAS,  announced  that  there 
were  113  votes. 


Whole  number  cast, 
Necessary  to  a  choice, 

Philander  B.  Prindle, 

Francis  Seger, 

Thomas  J.  Loomis, 

James  R.  Rose, 

E.  J.  Marsh, 

W.  H.  Grant, 

Joseph  Rose, 

W.  W.  Dean, 

C.  F.  Crosby, 

Blank 

No  choice 


113 
57 
60 
21 
19 
14 

3 

2 

1 

1 

1 

1 


Mr.  TALLMADGE  then  rose  and  said  the  Clerk 
lad  checked  only  112  ballots,  whilst  the  tellers 
iad  announced  113.  He  merely  mentioned  this 
circumstance  by  way  of  an  apology,  or  explanation 
ot  what  had  been  alluded  to  yesterday,  about  the 
naccuracy  or  mistakes  of  a  former  clerk  (Mr. 
Prindle  )  He  (Mr.  T.)  having  had  the  misfortune 
o  preside  here,  and  elsewhere  on  several  occa- 
sions and  for  considerable  periods  over  deliberative 
bodies,  he  well  knew  how  easy  it  was  for  mistakes 
of  this  nature  to  occur,  even  with  the  most  accu- 
rate and  skilful  officers;  and  he  knew  how  ex- 
ceedingly  difficult  it  was  for — 

Mr.  CHATFIELD  called  the  gentleman  to  or- 
der;  all  of  his  remarks  were  out  of  place  at  this 
time. 

Mr.  TALLMADGE  then  said  that  he  would 
orbear  to  say  anything  more  than  this,  in  relation 
to  the  rule  in  such  matters.  It  is  usual  for  the 
clerk  to  be  required  to  check  off  the  number  of 
ballots  he  has  called,  before  the  ballot-box  is 
touched  by  the  tellers  ;  for  thus  you  have  the  only 
means  of  obtaining  a  fair  and  correct  result ;  oth- 
erwise there  is  no  check  to  prevent  any  person 
putting  in  two  or  three  ballots  at  a  time. 

Mr.  MORRIS,  on  the  part  of  the  tellers,  an- 
nounced that  there  were  113  names  called,  by 
the  clerk  and  yet  there  was  found  114  ballots. 

Mr.  RUSSELL  said  that  this  was  caused  by  so 
many  of  the  members  voting  out  of  the  order. 

Mr.  JONES  suggested  that  the  list  be  called 
over,  and  that  each  man  rise  up  and  answer  whelh. 
er  he  voted. 

Mr.  BASCOM  said  that  the  correction  would 
not  be  accomplished  in  that  way,  as  a  great  many 
had  gone  out  after  voting. 

The  Convention  then  went  into  another  ballot, 
the  same  tellers  acting  as  before,  and  with  the 
following  lesult  : 


Philander  B.  Prindle, 

Francis  Seger, 

Thos.  J.  Loomis, 

James  R.Rose, 

Blank 

J.  T.  Disosway, 

E.  J.  Marsh, 


58  votes  being  required  for  a  majority.  Again 
there  was  no  choice,  and  the  Convention  went  in- 
to a  third  ballot— the  same  tellers  acting  as  before 
— and  in  the  following  result : 


94 


Francis  Seger  received  65 

Philander  B.  Prindle,  63 

Thomas  J.  Loomis,  4 

Blank  1 

James  R.  Hose,  1 

Mr.  CHAMBERLAIN  then  offered  the  follow- 
ing resolution,  on  which  he  called  for  the  ayes  and 
nays: 

Resolved,  That  FRANCIS  SEGER  be  and  he  is  hereby 
declared  duly  elected  one  of  the  Secretaries  of  this  Con- 
vention. 

The  PRESIDENT  said  that  the  resolution  adop- 
ted, was  that  the  Convention  should  proceed  to 
elect  by  ballot  a  Secretary.  It  had  proceeded  thus 
far  without  a  choice,  and  he  apprehended  it  was 
not  in  order  to  go  into  any  other  mode  of  election 
without  a  reconsideration  of  the  vote  to  go  into 
ballot. 

Mr.  CHAMBERLAIN  thought  that  the  elec- 
tion could  be  arrested  at  any  time  if  it  was  thought 
proper  so  to  do. 

Mr.  PERKINS  thought  it  would  be  in  order  to 
go  into  a  ballot  between  the  two  highest,  and  not 
to  allow  the  votes  that  might  be  cast  for  other 
candidates  to  be  taken  into  consideration. 

Mr.  PATTERSON  doubted  very  much  the  pow- 
er of  the  majority  to  dictate  to  the  rfimority  who 
they  should  vote  for.  There  were  here  for  Mr. 
LOOMIS  4  votes  and  he  doubted  the  power  of  this 
Convention  to  compel  these  men  to  go  for  either 
of  the  two  highest  candidates.  He  thought  the 
largest  liberty  should  govern  here. 
b  Mr.  HARRIS  thought  that  time  enough  had 
.een  spent  in  this  process  of  balloting — he  be- 
^eved  as  much  time  as  could  be  well  spent.  He 
apprehended  there  was  not  one  who  doubted  the 
Jesuit  of  another  balloting,  and  he  would  there- 
'ore  move  a  reconsideration  of  the  vote  adopting 
the  resolution  to  go  into  a  ballot,  in  order  to  al- 
low  the  resolution  of  the  gentleman  from  Allegany 
(Mr.  CHAMBERLAIN)  to  pass  afterwards. 

The  motion  prevailed — a  count  being  had — 56 
to  42. 

The  PRESIDENT  stated  that  now  the  resolu- 
tion of  the  gentleman  from  Allegany  was  in  order. 

Mr.  MURPHY  rose  to  a  question  of  order.  By 
the  18th  rule  it  was  provided  that  a  motion  to  re- 
consider was  in  order  to  be  made  at  aiiy  time,  but 
that  the  question  on  it  might  not  be  taken  on  the 
same  day  without  unanimous  consent. 

Mr.  JONES:  Unanimous  consent  has  been 
given.  There  were  no  objections. 

Mr.  MURPHHY  :  No,  sir— there  were  objec- 
tions— a  strong  vote  was  given  in  the  negative. 

The  PRESIDENT  stated  the  objection  would 
have  been  a  good  one  if  it  had  been  taken  in  time, 
but  not  now  after  the  vote  had  been  announced 
and  the  result  declared. 

Mr.  WORDEN  moved  to  amend  the  resolution 
by  striking  out  the  name  of  FRANCIS  SEGER, 
and  inserting  that  of  PHILANDER  B.  PRINDLE.— 
He  called  tor  the  ayes  and  nays  on  this  motion. 

Mr.  SHEPARD  called  for  a  division  of  the  ques- 
tion— to  be  taken  first  on  striking  out. 

The  question  was  then  taken  and  the  motion  to 
strike  out  was  lost  —ayes  49,  nays  65,  as  follows  : 

AYES— Messrs.  Archer,  Ayrault,  F.  F.  Backus,  H.  Back- 
us, Baker,  Bascom,  Brayton,  Bruce,  Bull,  Burr,  Candee, 
Cook,  Dana,  Dodd,  Flanders,  Forsyth,  Gebhard,  Graham, 
Harris,  Harrison,  Hawley,  Hoffman,  E.  Huntington,  Jor- 
dan, Kennedy,  Kirkland,  Marvin,  Nicholas,  Parish,  Patter- 
son, Pemu'man,  Porter,  Rhoades,  Richmond,  Salisbury, 


Shaver,  Simmons,  E.  Spencer,  W.  H.  Spencer,  Stow, 
Strong,  Tallmadge,  Tuthill,  Van  Schoonhoven,  Warren, 
Waterbury,  Worden  A.  Wright,  A.  W.  Young—  49. 

NAYS—  Messrs.  Allen,  Angel,  Bergen,  Bouck.Bowdish, 
Brown,  Cambreleng  D.  D.  Campbell,  R.  Campbell,  jr., 
Chamberlain,  Chatfield,  Clark,  Clyde,  Cornell,  Danforth, 
Dubois,  Gardner,  Greene,  Hart.Hotchkiss,  Hunt,  A.  Hun- 
tington, Hutchinson,  Hyde,  Jones,  Kemble,  Kernan,  Kings- 
ley,  Loomis,  Mann,  McNeil,  McNitt,  Maxwell,  Morris, 
Murphy  .  Nicoll,  O'Conor,  Perkins,  Powers,  Riker,  Rug- 
gles,  Russell,  St.  John,  Sanford,  Sears,  Shaw,  Sheldon, 
Shepard,  Stanton,  Stevens,  Stetson,  Swackhamer,  Tal't,  J. 
J.  Taylor,  W.  Taylor,  Tilden,  Townsend,  Vache,  Ward, 
White,  Willard,  Wood,  Yawger,  J.  Youngs,  President—  65. 

Mr.  WORDEN  hoped  that  his  friend  from  Alle. 
gany  (Mr.  CHAMBERLAIN)  would  now  withdraw 
his  call  for  the  ayes  and  nays  for  from  the  state  of 
this  vote,  he  apprehended  there  would  be  great 
unanimity  on  the  next  one.  He  should  under  the 
circumstances  vote  for  Mr  Seger.  and  he  hoped 
that  he  would  receive  the  unanimous  vote. 

Mr.  CHAMBERLAIN  assented  to  this. 

And  the  resolution  was  adopted  without  a  di- 
vision. 

Mr.  DODD  moved  that  the  Convention  adjourn 
to  meet  on  Monday  at  9  A.  M. 

Mr.  PATTERSON  mo/ed  that  the  Convention 
adjourn. 

This  motion  prevailed  —  a  count  being  called  for 
—54  to  52. 

And  then  the  Convention  adjourned  till  11  o'- 
clock to-morrow  morning. 


SATURDAY,  (12th  day),  June  13. 

Prayer  by  the  Rev.  Mr.  BENSON. 
RIGHTS    OF  EQUITY,    LAW  OF  LIBEL,  &c. 

Mr.  O'CONOR  offered  the  four  following  res- 
olutions: 

Resolved,  That  it  be  referred  to  the  eleventh  standing 
committee,  to  consider  the  propriety  of  securing  to  cit- 
izens of  this  State,  by  Constitutional  provision,  the  follow- 
ing rights  and  privileges,  to  wit  :— 

1st.  A  right  to  the  accused,  in  all  criminal  cases,  and  in 
all  actions  or  proceedings  for  penalties  or  forfeitures,  to 
waive  a  trial  by  jury,  and  submit  himself  to  trial  by  the 
Court. 

2d.  A  right  to  the  accused  in  all  impeachments,  criminal 
cases,  and  actions  or  proceeedings  for  penalties  or  forfeit- 
ures, or  for  misconduct  in  office,  to  make  a  final  reply  to 
the  prosecutor  upon  questions  of  law  or  fact. 

3d.  The  right  of  peremptory  challenge  to  persons 
drawn  as  jurors,  to  the  extent  now  allowed  by  law;  and 
a  like  right  to  the  accused,  in  all  criminal  cases,  and  in 
all  actions  and  proceedings  for  penalties  or  forfeitures,  to 
the  extent  of  five  challenges;  and  a  like  right  to  each  party 
in  all  other  civil  cases,  to  the  extent  of  one  challenge. 

4th.  The  exemption  of  every  person  from  being  com- 
pelled to  be  a  witness  against  himself  in  any  case,  for  the 
purpose  of  subjecting  himself  to  a  penalty  or  forfeiture,  or 
any  loss  or  deprivation,  in  the  nature  of  a  penalty  or  of  a 
forfeiture. 

The  PRESIDENT  said  the  question  would  be 
on  the  first  resolution. 

Mr.  TALLMADGE  asked  to  what  committee 
it  was  proposed  to  refer  that  resolution  ? 

Mr.  O'CONNOR  said  to  the  llth  committee,  on 
"  the  rights  of  citizens,  &c." 

Mr.  TALLMADGE  said  the  subject  did  not 
properly  belong  to  that  committee.  It  was  really 
a  subject  of  legislation,  and  ought  to  go  to  the 
committee  on  the  Legislature.  One  or  two  ab- 
stract statements  were  made,  but  it  was  not  in  fact 
a  principle  put  forward,  but  merely  a  detail  of  very 
sound  Legislation.  He  would  move  to  refer  it  to 
the  committee  on  the  powers  and  duties  of  the 
Legislature. 

Mr.  O'CONOR  said  that  the  resolution  referred 


to  subjects  that  were  properly  embraced  in  the 
duties  of  the  committee  on  the  llth  subdivision — 
the  Bill  of  Rights  ;  it  affected  the  rights  and  pri- 
vileges of  citizens.  All  that  was  contemplated  in 
the  resolution  was  perfectly  analagous  to  the  mat- 
ters  contained  in  the  duties  of,  or  that  had  been 
committed  to  that  committee.  It  might  be  thought 
expedient  perhaps  to  reject  the  resolution  at  once, 
but  if  it  was  to  be  committed  at  all  it  ought  to  go 
to  that  committee.  If  the  motion  of  the  gentle- 
man from  Tutchess  (Mr.  TALLMADGE)  should  be 
approved,  for  sending  it  to  the  committee  on  the 
2d  subdivision,  (on  the  powers  and  duties  of  the 
Legislature)  it  would  be  giving  it  a  wrong  direc- 
tion. 

Mr.  SWACKHAMER  hoped  that  his  venerable 
friend  from  Dutchess  (Mr.  TALLMADGE)  would 
withdraw  his  proposition.  In  the  abstract  it  was 
a  matter  of  very  little  moment  to  which  of  the 
two  committees  it  was  sent ;  but  it  was  a  very 
important  proposition;  and  if  the  committee  on 
the  Bill  of  Rights  have  time  enough,  they  will 
give  Jt  all  that  attention  which  its  importance  de- 
mands. For  his  own  part,  while  he  wished  the 
largest  liberty  to  be  enjoyed  in  presenting  resolu- 
tions, he  also  hoped  that  all  gentlemen  would 
be  allowed  to  request  or  give  any  desired  direc- 
tion for  the  consideration  of  their  various- propo. 
sitions. 

Mr.  TALLMADGE  said  that  as  his  honorable 
associate  on  the  committee  (Mr.  SWACKHAMER) 
wished  it,  he  would  withdraw  his  motion  ;  at  the 
same  time,  he  wished  to  give  notice,  that  he  ob- 
jected thus  early  in  the  session  to  this  multiplied 
sub-division  of  subjects;  he  was  not  desirous  to 
get  into  them;  for  if  they  did,  how  they  were  to 
get  out  ot  them,  he  could  not  possibly  imagine. 

The  four  resolutions  of  Mr.  O'CONOR  were 
then  read  and  put  separately,  and  all  adopted  and 
referred  to  the  llth  standing  committee. 

LAWS  OF  LIBEL. 

Mr.  O'CONOR  said  he  had  still  another  resolu- 
tion which  he  would  offer;  it  was  this  : 

Resolved,  That  it  be  referred  to  the  llth  standing  com 
mittee  to  consider  the  propriety  of  amending  the  last  sen- 
tence in  the  eighth  section  of  the  seventh  article  of  the 
Constitution  of  this  State,  so  that  the  same  shall  read  as 
follows: — "In  all  prosecutions  or  indictments  for  libel,  the 
truth  may  be  given  in  evidence  to  the  jury;  and  if  it  shall 
appear  to  the  jury  that  the  matter  charged  as  libellous  is 
true,  and  was  published  with  good  motives,  and  for  justi- 
fiable ends,  the  party  shall  be  acquitted,  and,  in  favor  of 
such  acquittal,  the  jury  shall  have  the  light  to  determine 
the  law  as  well  as  the  fact." 

It  was  adopted. 

SURROGATES. 

Mr.  J.  J.  TAYLOR  offered  the  following  which 
was  adopted  : 

Resolved,  That  it  be  referred  to  the  committee  on  the 
judiciary  to  enquire  into  the  expediency  of  making  the 
office  of  surrogate  a  salaried  office,  and  of  transferring  to 
that  officer  in  the  several  counties  jurisdiction  of  chancery 
foreclosures  of  mortgages  in  cases  not  contested— appli- 
cations for  leave  to  sell  real  estate  of  infants— the  care  of 
the  estates  of  lunatics,  idiots  and  habitual  drunkards — ard 
nuch  other  powers  of  the  court  of  chancery  as  may  be  pro- 
perly, and  more  cheaply,  ormore  expeditiously,  exercised 
by  a  local  judge. 

INDIAN  SUFFRAGE. 
Mr.  RICHMOND  offered  the  following: 
Resolved,  That  the  committee  on  the  elective  franchize, 
be  aad  they  are  hereby  m»tmcted  to  inquire  and  report 


on  the  subject  of  extending  the  right  of  suffrage  to  the  In- 
dians residing  in  this  state. 

Mr.  SIMMONS  wished  the  phraseology  of  these 
resolutions  to  be  changed.     He  did  not  like  the 
erm  "  instructed." 
Mr.  R's  resolution  was  adopted. 
LOCAL  OFFICES. 

Mr.  ANGEL  said  that  the  committee  on  lo- 
;al  offices  had  instructed  him  to  offer  the  follow- 
ng: 

Resolved,  That  the  Secretary  of  State  be  requested  to 
urnieh  for  the  use  of  this  Convention, forthwith,  so  far  as 
le  may  be  able,  a  full  statement  or  list  of  all  offices  in  this 
State,  the  duties  of  which  are  local,  their  respective  ten- 
ures, and  the  respective  powers,  dflties  and  compensation 
ot  their  incumbents. 

It  was  adopted. 

PERSONAL  LIABILITY. 

Mr.  SHELDON  offered  the  following,  which 
was  adopted  : 

Resolved,  That  it  be  referred  to  the  committee  on  banks 
:o  enquire  into  the  expediency  of  making  it  a  constitution- 
al provision  that  the  stockholders  of  banks  and  other  mo- 
neyed incorporations  shall  be  individually  liable  for  the 
debts  of  their  respective  corporations. 

LIST  OF  STANDING   COMMITTEES. 
Mr.  RUSSELL  moved  the  printing  often  times 
he  usual  number  of  the  list  of  standing   commit- 
tees.    Agreed  to. 

THE  SALT    SPRINGS. 

Mr.  RHOADES  offered  the  following  which 
was  adopted : 

Resolved,  That  it  be  referred  to  the  third  standing  com- 
mittee, to  inquire  into  the  expediency  of  amending  the  Con- 
stitution in  relation  to  the  powers  and  duties  of  the  Legis 
lature  in  regard  to  the  lands  belonging  to  this  State  conti- 
guous to  the  Salt  Springs. 

CLERGYMEN. 

Mr.  BOWDISH  offered  the  following  which  was 
adopted  : 

Resolved,  That  the  committee  on  the  elective  franchise, 
kc.,  be  directed  to  enquire  into  the  expediency  of  extend- 
ing to  clergymen  all  the  political  rights,  privileges  and  im- 
munities that  are  enjoyed  by  other  citizens  of  this  State, 
and  of  imposing  on  them  an  equal  proportion  of  the  taxation 
necessary  to  the  support  of  government. 

THE  TWO-THIRD  CLAUSE. 
Mr.  ALLEN  offered  the  following,  which   was 
adopted : 

Resolved,  That  it  be  referred  to  the  committee  on  incor- 
porations, to  enquire  and  report  on  the  expediency  of  abol- 
ishing the  two-third  vote  on  incorporations,  and  substitu- 
ting therefor  a  majority  of  all  the  members  elected. 

ASSESSMENTS  OF  PERSONAL  PROPERTY. 
Mr.  RUGGLES    offered  the  following,  which 
was  adopted : 

Resolved,  That  the  committee  on  the  powers  of  coun- 
ties, &c.,  be  directed  to  enquire  into  the  expediency  of  re- 
quiring the  legislature  to  make  further  and  more  effectual 
provision  than  now  exists,  for  ascertaining  the  value  of 
the  per«onal  estate  of  each  individual,  by  the  assessors  for 
the  purpose  of  taxation. 

FRANCHISE  AND  ESTATES. 
Mr.  STOW  offered  the  following: 

Rosolved,  That  the  committee  on  the  elective  franchise, 
&c.,  be  instructed  to  inquire  into  the  expediency  of  secur- 
ing to  every  elector  the  privilege  of  holding  a  certain 
amount  of  real  estate  owned  by  him,  or  in  which  he  has  a 

permanent  interest  ,of  not  less  than  $ in  value,  and  not 

more  than  $ in  value;  that  such  property  be  described 

and  registered;  and  that  the  same  shall  not  be  incumbered 
by  or  for  any  debt  contracted  or  created  by  such  elector, 
after  such  registry  and  a  reasonable  publication  and  notice 
thereof. 


96 


Mr.  STOW  said  he  did  not  wish  to  make  this  a 
qualification  clause  for  an  elector;  but  he  \vishei 
to  confer  it  on  electors  as  a  high  and  valuable  pri 
vilege  ;  and  that  to  all  the  other  privileges  which 
an  elector  now  enjoyed,  this  one  "might  be  super 
added.  He  would  not  give  this  to  all;  but  in 
wished  to  make  it  a  mark  of  honor  and  distinction 
for  those  who  should  deserve  it;  to  distinguish 
them  from  those  who  by  their  own  infamy  or 
otherwise,  had  rendered  themselves  unworthy  o 
this  privilege-  That  was  his  only  object. 

Mr.  STRONG  said  that  he  did  apprehend,  when 
the  gentleman  first  read  his  resolution—  but  he  die 
not  think  so  now—  perhaps  it  was  not  so;  but  he 
knew  that  it  had  been  said,  that  after  this  Con- 
vention had  got  through  making  all  the  reforms 
which  they  might  consider  necessary  in  the  Con- 
stitution ;  that  then  all  the  farmers  would  be  ex- 
pected  to  divide  off  part  of  their  farms  with  the 
lawyers,  [much  laughter.]  He  did  not  know  ex- 
actly how  this  cat  might  jump  in  the  long  run. 
[Laughter.]  He  did  not  know  how  it  would  turn 
out;  indeed  he  did  not  know  that  he  should  go 
against  it;  but  he  thought  he  would  just  say  one 
word  on  the  subject. 

Mr.  STOW  would  relieve  the  gentleman  from 
Monroe.  (Mr.  STRONG.)  He  himself  knew  but  lit- 
tie  of  law  and  wished  no  man  to  divide  his  farm 
with  him.  [More  laughter.] 

The  resolution  was  adopted. 

THE  SALT  DUTY. 

Mr  W.  TAYLOR  offered  a  resolution  to  the  ef. 
feet  that  the  duty  on  salt  should  never  be  more 
than  1  cent  a  bushel.  Referred. 

RIGHTS  OF  WIDOWS  AND  ORPHANS 

Mr  WATERBURY  offered  the  following  which 
was  adopted  :  — 

the  riShts  and  Privileges  of  widows  and 


RATE  OF  INTEREST. 

Mr.  DANA  offered  the  following,  which  was 
adopted  : 

Resolved,  That  the  committee  on  the  powers  and  duties 
of  the  Legislature,  except,  &c.,  enquire  into  the  expedi- 
ency of  making  it  a  constitutional  provision  that  the  rate 
of  interest  in  this  State  shall  not  exceed  six  per  cent. 

NEGRO  SUFFRAGE. 

Mr.  A.  W.  YOUNG  offered  the  following,  which 
was  adopted  : 

Resolved,  That  it  be  referred  to  the  committee  on  the 
elective  franchise  to  inquire  into  the  expediency  of  ex- 
tending  to  colored  citizens  the  right  of  suffrage,  and  of 
abolishing  entirely  the  property  qualification. 

THE  CANALS. 

Mr.  CHAMBERLAIN  offered  the  following 
which  was  adopted  : 

Resolved,  That  the  committee  on  canals  and  internal 
improvements  report  to  this  Convention  whether  in  their 
judgment  it  is  expedient  to  make  a  constitutional  provision 
for  the  completion  of  the  unfinished  canals  of  this  State  in- 
cluding the  Erie  Canal  Enlargement)  and  if  they  should 
deem  such  a  provision  inexpedient,  to  report  what  action 
would  be  necessary  for  this  Convention  to  take  in  relation 
to  said  canals. 

TAXATION  OF  FOREIGNERS. 
Mr.  MORRIS  offered  the  following  : 
Proposed,  That  there  be  incorporated  in  the  Constitution 
the  principle  of  taxation  on  foreign  residents,  after  they 
shall  have  resided  in  this  state  for  a  time  sufficient  to  be- 
come citizens, 


Mr.  M.  said  he  had  o%red  this  with  a  view  to 
reach  a  large  class  of  very  worthy  and  wealthy 
gentlemen  from  abroad  ;  who  pass  nearly  their 
whole  lives  amongst  us ;  who  thus  here  accumu- 
late large  fortunes  out  of  us;  who  never. intend  to 
become  citizens,  and  who  contribute  nothing  to 
the  support  of  the  State  or  General  Government. 
It  was  adopted. 

UNFINISHED  BUSINESS  IN  THE  COURTS. 
Mr.  MORRIS  offered  the  following : 
Proposed;  That  there  be  incorporated  into  the  constitu- 
tion authority  to  appoint  a  special  commission  to  dispose 
of  the  unfinished  business  that  has  accumulated  in  the 
courts  of  law  and  equity. 

Mr.  M.  said  he  offered  this  in  order  to  dispose 
in  some  way  of  the  vast  amount  of  unfinished  le- 
gal  business  that  would  be  left  in  the  old  courts, 
under  the  old  system,  when  we  shall  come  to  have 
our  new  courts  in  operation  under  the  new  or 
amended  Constitution;  so  that  the  new  courts  shall 
not  be  lumbered  down,  and  incur  censure,  by  be- 
ing encumbered  with  the  vast  mass  of  unfinished 
legal  business  that  had  accumulated  under  the  old 
regime.  It  was  adopted. 

NON-IMPRISONMENT  FOR  DEBT. 
Mr.  MORRIS  then  offered  as  an  individual  pro- 
position of  his  own,  that  the  committee  enquire 
into  the  incorporating  of  the  principles  of  non-im- 
prisonment for  debt,  in  the  new  Constitution.  It 
was  now  only  to  be  found  in  an  enactment  of  the 
legislature  ;  and  he  desired  to  see  this  great  prin- 
ciple form  part  of  the  Constitution  of  the  State. 

Proposed,  That  there  be  incorporated  into  the  constitu- 
tion the  principle  of  taxation  on  foreign  residents,  after 
they  shall  hare  resided  in  this  State  for  a  time  sufficient  to 
become  citizens. 

Proposed,  That  the  principle  of  non-imprisonment  for 
debt,  be  incorporated  in  the  Constitution. 

Mr.  MARVIN  thought  that  all  these  resolutions 
ought  to  be  definitely  worded — as  they  were  pre- 
sented and  referred  at  present,  they  certainly 
seemed  to  commit  the  Convention  to  a  great  ex- 
tent to  the  principles  involved  in  the  resolutions. 

Mr.  MORRIS  said,  most  certainly  not ;  all  these 
propositions  which  he  now  presented,  he  was  of- 
fering upon  the  very  principle  contained  in  the 
resolution  that  he  had  offered  the  other  day,  and 
which  was  ihen  laid  upon  the  table.  They  were 
his  individual  propositions,  and  he  alone  was  res- 
ponsible for  them.  He  merely  asked  them  to  be 
eferred  in  the  same  way  that  a  petition  would  be 
disposed  of;  and  he  most  certainly  did  not  there- 
ay  commit  any  individual  member  to  any  particu- 
,ar  course;  much  less  the  Convention  itself. 

Mr.  MARVIN  said  that  when  the  Convention 
lere  deliberately  sent  these  instructions  about 
principles  to  the  committees,  with  their  deliber- 
ate sanction,  as  they  had  done,  that  then  it  was 
an  act  which  the  whole  body  does;  they  sanction 
he  principle  contained  in  the  resolution.  The 
>ody  here  deliberately  makes  up  its  mind  to  do  a 
hing;  they  under  this  pass  a  resolution,  delibe- 
•ately  vote  upon  it,  and  thus  positively  instruct 
he  committee  to  bring  in  a  report  accordingly — 
Vow  this  may  cause  a  great  difficulty  to  arise  here- 
fter  as  to  the  intention  of  members  in  thus  voting 
here  now.  For,  hereafter,  we  shall  find  entered 
>n  the  journals- our  own  actions  in  sending  these 
esolutions  to  the  committees  with  positive  in- 
itructions  to  pursue  a  certain  line  of  action 

Mr.  MORRIS  said  that  his  were  nake 


97 


tuns  of  an  individual  member — presented  the 
same  as  a  petition;  to  these  he  signed  his  name) 
and  added  a  request  for  a  reference  of  them.  Hi 
could  not  see  how  this  course  could  possibly  com 
mit  any  of  the  members.  They  read/'  proposed' 
and  not  "resolved." 

Mr.  MARVIN  said  that  word  entirely  change* 
the  aspect  of  the  matter. 

They  were  referred. 

EXPENSE  OF  REGISTRATION. 

Mr.  KENNEDY  offered  the  following,  which 
was  adopted : 

Resolved,  That  the  Secretaries  address  acommunica 
tion  to  the  Comptroller  of  the  city  and  county  of  New 
York,  requesting  him  to  transmit  a  statement  of  the  ex 
pense  incurred  by  said  city  and  county,  during  the  year 
'40  and  '41,  under  the  act  of  1840,  providing  for  a  registry 
of  the  voters  of  said  city  and  county. 

THE  SALT  DUTY. 

Mr.  ST  JOHN  offered  the  following,  which  wa 
adopted  : 

Resolved,  That  the  committee  on  canals,  &c.,  be  instruc 
ted  to  inquire  and  report  on  the  expediency  of  entirely 
abolishing  the  duty  on  salt. 

The  following  resolutions  were  then  all  read  in 
the  ensuing  order,  and  all  were  adopted  : 
CONTRACTS  WITH  THE  STATE. 
By  Mr.  CHATFIELD:— 

Resolved,  That  it  be  referred  to  the  committee  on  canals 
Jtc.,  to  inquire  into  the  expediency  of  requiring  all  con 
tracts  made  with  the  people  of  this  state  to  be  in  writing 
and  prohibiting  the  state  agents  and  officers  from  altering 
or  varying  the  same  unless  authorized  so  to  do  by  a  law 
specif}  ing  the  alteration;  and  prohibiting  the  annulling  or 
surrender  of  any  such  contract,  except  by  a  judicial  de- 
termination or  decree.  And  also  of  prohibiting  all  extra 
allowances,  gifts  or  compensation  beyond  the  prices  speci- 
fied in  such  contracts,  except  by  the  judgment  or  sentence 
of  an  appropriate  judicial  tribunal. 

USURY  LAWS. 
By  Mr.  CONELY  :— 

Resolved,  That  it  be  referred  to  the  committee  on  the 
powers  and  duties  of  the  legislature,  to  inquire  into  the 
propriety  of  prohibiting  the  legislature  from  passing  usury 

BETTING  ON  ELECTIONS. 
By  Mr.  ANGEL:— 

Resolved,  That  the  committee  on  the  elective  franchise 
be  instructed  to  inquire  into  the  expediency  of  checking 
by  constitutional  provisions  the  practice  of  betting  on 
elections,  by  suspending  the  right  of  every  person  to  vote 
who  shall  have  a  bet  in  any  form  pending  on  the  result  of 
the  election  at  which  he  offers  to  votej  and  that  said  com- 
mittee do  also  inquire  into  the  expediency  of  disqualifying 
every  person  from  voting  at  elections  and  from  holding  any 
office  of  trust  or  profit,  who  shall  have  been  duly  convicted 
by  a  jury  of  the  country  of  bribing  any  elector  to  vote,  at 
any  presidential,  congressional,  state,  county,  city,  ward 
or  town  election. 

ELECTION  DISTRICTS. 
By  Mr.  BAKER:— 

Resolved,  That  the  Secretaries  be  directed  to  request 
the  county  clerk  of  the  city  and  county  of  New-York  to 
furnish  this  Convention  with  a  statement  of  the  separate 
population  of  each  election  district  therein,  together  with 
a  description  of  such  district  by  boundaries. 

Mr.  B.  said  that  the  day  before  yesterday  the 
largest  gentleman  from  New  York,  (laughter)  on 
his  left,  (Mr.  MORRIS)— he  knew  no  better  way  to 
distinguish  amongst  that  numerous  and  intelligent 
delegation — had  procured  the  passage  of  a  resolu- 
tion relative  to  a  division  ot  the  state  into  single 
senate  and  assembly  districts.  And  if  the  com- 
mittee to  whom  that  resolution  was  referred  should 


agree  to  do  this,  they  had  not  the  means  to  guide 
them.  On  the  maps  forwarded  to  us  by  the 
Comptroller,  we  had  the  population  of  the  several 
fawns,  and  of  wards;  in  some  of  the  latter  there 
are  40,000  voters.  We  have  then  in  the  aggregate 
also,  the  census  returns  laid  on  our  tables,  but 
not  in  detail;  he  therefore  wiehed"  the  county 
clerks  to  furnish  the  committee  with  these  statis- 
tics. 

Mr.  TOWNSEND  said,  that  if  by  answering 
this,  it  would  subject  the  city  of  New  York  to  the 
expense  of  another  census,  he  tor  one,  would  most 
decidedly  object  to  it.  Would  not  the  last  State 
census  give  us  the  information  ? 

Mr.  BAKER  said  he  had  applied  to  the  Secre- 
tary of  State  supposing  he  could  find"  the  returns 
he  desired, in  his  office  ;  but  the  tables  there  would 
not  give  them.  They  are  returned  only  in  the  ag- 
gregate, by  wards.  Now  the  county  clerk  has  the 
population  of  votes  of  each  election  district  which 
he  has  sent  here  only  by  wards.  In  one  hour  he 
could  look  up  for  all  the  information  we  desired. 

Mr.  TOWNSEND  would  not  by  any  means  pre- 
vent any  member  from  obtaining  any  necessary  in- 
formation ;  but  if  this  was  to  entail  the  expense  of 
a  new  census  upon  the  city  of  N.  Y.  burthened 
as  it  was  with  an  annual  tax  of  $2,500,000,  he 
would  oppose  it,  and  only  with  the  understanding 
that  it  would  not,  would  he  consent  to  the  refer- 
ence of  the  resolution. 

THE  DUTY  OF  COMMITTEES. 
Mr.  BAKER  offered  the  following  : 
Resolved,  That  in  the  opinion  of  this  Convention,  it  will 
be  inexpedient  for  the  several  committees  on  the  constitu- 
tion, to  accompany  their  reports  with  written  explanations, 
pt  the  reasons  which  may  have  influenced  them  in  agree- 
ing thereto. 

Mr.  B.  said  that  as  the  Committees  were  formed 
and  we  might  soon  expect  their  reports,  in  order 
to  test  the  sense  of  the  committee  on  this  subject 
he  had  offered  this  resolution,  as  to  the  way 
n  which  the  Committees  should  present  them. 
The  committees  in  the  Convention  of  1821 
merely  reported  to  that  Convention  the  form 
of  the  amendments  they  proposed,  and  gave  no 
written  explanation  of  the  motives  which  had 
ed  to  these  conclusions, 

Mr.  SWACKHAMER  moved  to  lay  the  resolu- 
ion  on  the  table.  Lost,  35  to  20. 

Mr.  TALLMADGE  said  that  as  he  understood 
;he  rules  of  legislation,  it  was  merely  a  question 
f  discretion  with  the  various  committees  wheth- 
er they  would  give  the  reasons  for  their  report- 
ng  certain  resolutions,  or  not,  as  they  pleased. — 
At  the  last  Convention  the  committees  exercised 
his  discretion,  and  thought  it  best  not  to  state 
any  reasons  for  reporting  the  various  resolutions 
hey  presented.  It  ought  to  be  left  entirely  to 
he  discretion  of  the  committees  now.  The  Con- 
rention  of  1821  gave  no  reasons,  because  they 
nought  it  might  lead  persons  to  vote  for  the 
mendments  from  very  different  reasons  than 
hose  which  induced  the  committee  to  make 
hem.  He  was  the  first  to  report  in  1832,  and 
hen  he  did  assign  some  reasons  therein,  but  it  was 
hought  objectionable,  and  the  plan  was  after- 
yards  abandoned.  Elaborate  reports  were  unad- 
isable ;  for  different  gentlemen  had  very  differ- 
nt  reasons  for  coming  to  the  same  conclusion, 
lowever  there  were  no  restrictions  herej  and  per- 


98 


haps  the  Convention  had  better  not  tie  themselves 
down  to  any  particular  rule ;  leave  all  the  com- 
mittees free  to  do  as  they  thought  proper. 

Mr.  BROWN  hoped  it  would  not  pass— the  ge- 
neral sentiment  in  the  Convention  was  againstgiv- 
ing  any  elaborate  reasons  for  a  report. 

Mr.  TALLMADGE  said  as  the  word  was  in- 
expedient, the  resolution  met  with  his  entire  ap- 
probation. 

Mr.  BROWN  observed  that  the  resolution  for- 
bade a  committee  or  said  they  ought  not  to  ac- 
company their  reports  with  any  elaborate  reasons 
for  the  same  He  knew  the  general  feeling  was 
this  way  ;  and  there  was  much  propriety  therein; 
but  still  he  tfrought  the  committee  ought  to  be 
left  free  to  assign  reasons  for  their  report,  or  not 
as  they  pleased.  He  would  suppose  a  case. — 
Suppose  the  members  of  a  committee  should  differ 
as  to  the  propriety  of  the  proposition  a  majority 
decided  to  report.  Shall  the  majority  or  minority 
be  allowed  to  assign  any  reasons  tor  the  same ;  or 
would  it  not  be  much  better  to  leave  this  mat- 
ter free — leave  it  open  to  the  committee  to  say 
why  they  reported  such  and  such  matters  or 
not.  Here  was  the  judiciary  committee,  a  large 
one  and  one  of  immense  importance;  with  a  great 
diversity  of  subjects  committed  to  their  charge; 
he  would  not,  from  what  he  had  learned,  be  at  all 
surprised  if  that  committee  should  widely  differ 
as  to  the  plan  of  a  judicial  system  which  fchey 
would  report  for  adoption,  and  present  a 
majority  and  a  minority  plan.  And  if  two  dis- 
tinct systems  are  sent  here  by  them,  would  it  not 
be  important  and  advantageous  for  the  public  and 
for  the  Convention  to  know  the  reasonings,  as  to 
why  they  reported  these  different  plans.  If  this 
resolution  should  pass;  and  he  certainly  hoped  it 
would  not,  under  any  circumstances — then  he 
would  consider  it  as  a  clear  intimation  given  by 
this  Convention  that  it  does  not  desire  or  expect 
to  see  the  reasons  assigned  for  a  committee's  dif- 
fering; whereas  if  this  was  all  left  entirely  to  the 
discretion  of  the  various  committees  they  would  be 
better  able  to  arrive  at  a  just  conclusion.  They 
could  exercise  the  most  prudent  discretion  in  the 
matter,  if  they  are  left  entirely  unembarrassed  by 
any  expression  of  opinion  by  the  Convention  be 
forehand.  But  there  is  another  point  of  view  in 
which  to  consider  this  matter;  which  the  mem- 
bers ought  not,  by  any  means,  to  lose  sight  of.  It 
is  this;  the  action  of  the  Convention  does  not  set- 
tle the  question  of  the  final  adoption  of  any  of 
these  amendments  that  may  be  reported  to  the  Con- 
vention.  The  report  of  a  committee  will  not  be 
at  all'  conclusive.  This  body  is  not  like  a  legisla- 
ture, whose  acts  when  passed  go  abroad  with  the 
full  force  and  vigor  of  a  law  to  the  people,  not  to 
be  disobeyed,  or  changed,  or  overturned,  until  it 
be  repealed  by  the  people  at  the  next  or  any  sue 
ceeding  legislature.  But  all  these  amendments 
that  would  be  proposed  must  ultimately  be  sub. 
milled  to  the  people,  for  their  adoption  or  rejec- 
tion ;  and  he  sincerely  hoped  that  on  all  the  im- 
portant constitutional  amendments  which  any  com. 
mittee  might  report,  they  would  feel  it  to  be  a  so. 
lemn  duty  to  accompany  their  propositions  with 
such  a  report  or  explanation  to  this  House,  as 
shall  clearly  elucidate  the  nature  of  the  proposed 
change,  and  of  the  reasons  that  prompted  the 
change.  This  will  assist  the  people  in  forming 


a  judgment  as  to  whethet  they  will  vote  for  it  or 
not.  They  ought  certainly  to  give  their  reasons 
to  the  people  of  the  State  why  they  have  changed 
the  fundamental  law  thereof.  He  did  not  desire 
to  see,  and  would  not  encourage  any  elaborate  or 
lengthy  reports,  except  on  a  matter  of  very  great 
importance,  but  this  should  be  left  to  the  judg- 
ment of  the  committee.  The  question  should  be 
left  entirely  open.  If  a  committee  could  give  the 
reasons  better  on  paper  than  they  could  by  a  speech 
on  that  floor,  they  ought  to  be  left  at  liberty  to  do 
so.  A  great  many  of  the  members  doubtless  were 
unaccustomed  to  debating— would  find  it  difficult  to 
make  a  speech  in  giving  their  reasons, — but  whose 
ability  lay  in  committing  their  thoughts  or  views 
to  paper,  and  if  they  can  assign  their  reasons  bet- 
ter in  the  form  of  a  report  than  by  a  speech,  it  is 
their  duty  to  do  so.  Then  these  reports  can  go 
forth  and  the  people  will  see  these  reasons  and 
the  arguments  that  led  any  committee  to  arrive  at 
certain  conclusions. 

Mr.  PERKINS  said  that  he  would  not  consume 
time  by  debating  this  matter,  but  he  was  certain 
that  on  many  of  the  committees,  members  would 
arrive  at  their  conclusions  by  the  aid  of  statistics ; 
and  unless  these  statistical  details  are  brought  be- 
fore the  committee  in  something  like  an  official 
form — other  than  by  a  speech — the  result  of  their 
labors  would  not  be  properly  brought  before  the 
Convention;  for  some  of  the  papers  might  publish 
—  and  some  might  not,  publish  these  statisti- 
cal details-  Before  they  got  through  the  session 
there  would  be  many  statistical  details  that  the 
committee  would  see  the  necessity  of  throwing 
before  the  public,  as  the  reasons  for  their  action. 
He  did  not  want  any  elaborate  reasoning,  from  a 
committee;  this  was  not  at  all  desirable;  but  he 
did  not  want  them  to  be  denied — or  deprived  of 
the  power  of  publishing  all  these  facts,  statistics, 
and  details  derived  from  official  sources.  He  did 
not  want  to  be  cut  off  from  putting  this  informa- 
tion before  the  people. 

Mr.  WORDEN  said  that  before  the  gentleman 
from  Orange,  Mr.  BROWN)  made  his  remaiks,  he 
was  disposed  to  vote  against  the  adoption  of  this 
resolution;  but  he  had  changed  his  mind  by  hear- 
ing the  gentleman .  One  or  two  of  the  suggestions 
that  fell  from  him  (Mr.  B.)  would  cause  him  to 
support  the  resolution.  And  the  speech  of  the 
gentleman  from  St,  Lawrence,  (Mr.  RUSSELL)  had 
also  strengthened  him  in  this  latter  view.  It  was 
very  true  that  the  result  of  all  these  resolutions 
were  to  go  forth  to  the  people— they  were  to  judge, 
and  pass  finally  upon  the  Constitution,  that  we 
are  met  here  to  frame — and  with  regard  to  the 
facts,  arguments,  reasons  and  opinions  to  which 
the  gentlemen  have  here  alluded— if  they  are  to 
be  gathered  together — if  they  are  at  all  to  be  use- 
ful and  employed— if  they  are  to  be  sent  forth 
to  the  people  of  the  State  for  any  practical 
purposes,  it  is  to  influence  results-— to  influence 
the  public  mind  in  deciding  upon  the  work  of 
this  Convention.  He  had  too  much  regard  for 
the  intelligence  of  the  community  at  large — to 
suppose  that  they  desired  us  to  gather  up  these 
facts  and  spread  them  before  them ;  the  people 
could,  and  would  for  themselves,  and  by  them- 
selves, search  out  and  collect,  and  examine,  and 
arrange  all  these  necessary  facts  connected  with 
the  subjects  to  be  considered,  and  the  Constitu- 


99 


tional  amendments  to  be  made  by  the  Convention. 
And  if  they  sent  forth  facts  of  an  erroneous  char- 
acter—or statistics  that  were  not  strictly  true  in 
point  of  fact — or  any  inferences  which  could  not  be 
legitimately  drawn  therefrom,  it  might  and  would, 
instead  of  leading  the  minds  of  the  people  to  cor- 
rect conclusions,  lead  them  to  very  erroneous  con- 
clusions. He  did  not  consider  that  it  was  necessary 
for  the  public  at  this  day  to  come  up  to  them  for  any 
facts  to  enable  them  to  form  their  judgmenton  these 
subjects ;  and  he  did  not  want  at  the  outset  to 
take  up  a  position  there,  which  would  show  that 
they  thought  it  necessaiy  to  fortify  their  conclu- 
sions by  tacts  of  their  own  manufacture,  in  support 
of  a  Constitution  which  they  were  to  frame  for  the 
people's  adoption.  This  plan  of  collecting  and 
publishing  facts  to  go  forth  with  the  endorsement 
of  the  Convention,  would  much  sooner  lead  to 
mischief  than  to  anything  else.  He  would  prefer 
to  give  the  people  the  result  of  their  deliberations 
calmly  and  truly,  and  he  would  leave  to  the  public 
mind  the  formation  of  its  own  judgmenton  the  Con- 
stitution that  would  be  presented  to  them.  He 
would  not  stand  there  in  an  attitude  of  distrust  of 
the  people;  nor  would  he  endeavor  to  fortify  the  re- 
sult of  their  deliberations  by  a  species  of  exparte  ar- 
guments,  or  a  one-sided  statement  of  facts, or  infer, 
ences  not  warranted  thereby.  Therefore  he  should 
oppose  the  plan  to  have  these  reports  accompanied 
by  a  string  of  facts  or  a  long  argument;  it  would 
be  neither  wise  nor  expedient  that  this  should  be 
the  case;  they  would  all  necessarily  be  one-sided. 
He  did  not  say  they  would  be  party  colored,but  I  hey 
would  present  or  partake  of  ex-parte  views  of  the 
matter.  They  would  not  embrace  a  full  and  impar- 
tial view  of  the  whole  subject ;  but  they  would  just 
be  the  mere  arguments  of  individuals  in  favor  of 
their  own  conclusions;  and  not  such  as  ought  to 
be  endorsed  bv  the  committee  and  sent  forth  to 
the  people,  as  the  arguments  upon  which  the 
committee!  ad  acted  in  corning  to  their  conclusions 
in  the  important  labor  of  framing  a  new  constitu- 
tion. 

Mr.  CHATFIELD  differed  with  the  gentleman 
from  Orange,  (Mr.  BROWN.  Before  tins  resolu- 
tion was  offered — even  some  days  since,  he  had 
drawn  up  a  resolution  which  embodied  the  same 
views  as  the  one  now  under  discussion;  and  he 
had  intended  to  offer  it.  He  was  satisfied  that 
the  better  and  wiser  course  was  to^leave  all  the 
arguments  that  would  otherwise  be  embodied  in  a 
report,  to  be  made  in  speeches  on  that  floor;  and 
then  all  who  desired  to  dc  so,  may  participate  in 
the  debate.  All  the  members  will  then  hear  the 
arguments  pro  and  con,  and  be  better  able  to  judge 
between  the  conflicting  views  that  may  be  pre- 
sented.  The  gentleman  from  Duchess  (Mr. 
TAL.LMADGE)  gave  good  and  sufficient  reasons — 
very  conclusive  ones, — why  this  resolution  should 
be  adopted.  There  was  another  strong  argu- 
ment in  favor  of  it;  the  Judiciary  Committee  will 
send  in  a  report  here;  and  if  they  give  their  reasons 
for  the  new  system  at  length  (and  he  thought  they 
should  give  no  arguments  or  reasons  lor  adopting 
a  certain  plan)  these  will  go  upon  the  journal  and 
always  be  consulted  by  judges  hereafter,  (as  al- 
ways had  been  the  case)  when  they  come  to  give 
a  construction  to  any  part  of  the  Constitution. 
He  wished  the  new  judicial  system  to  go  down 
to  the  Judiciary  without  any  such  an  interpre. 


tation  as  the  reports  of  any  committee  might 
give  to  it.  Such  reports  always  carried  great 
weight  with  them,  always  had  more  or  less  autho- 
rity when  presented  by  a  standing  committee,  and 
it  was  very  difficult  to  resist  it.  He  would 
not  give  the  committees  this  authority  to  bring 
in  here,  in  detail,  through  the  medium  of  a  report, 
arguments,  opinions,  and  views  to  influence  the 
judgments  of  the  members  here,  or  of  the  people 
elsewhere.  Allusion  had  been  made  to  the  judi- 
ciary committee;  that  committee  was  composed 
of  the  strongest  minds  and  the  most  towering  in- 
tellect that  was  to  be  found  in  that  house  ;  and  ar»y 
conclusion  to  which  this  committee  should  come, 
will  derive  an  almost  irresistible  force,  from  the 
character,  talent,  and  standing  of  the  various  mem- 
bers. This  would  be  quite  enough  then,  without 
giving  them  the  additional  advantage  and  force 
which  they  would  derive  from  presenting  to  the 
Convention  a  written  report.  If,  when  theybro't 
in  the  result  of  their  labors  to  the  Convention,  any 
member  ofit  desired  to  sustain,  or  to  explain  any 
part  thereof — or  any  of  the  conclusions  to  which  the 
committee  had  come — let  him  or  them  do  it  solely 
with  the  advantage  of  their  speaking  talent.  And 
it  is  not  the  case  that  any  gentleman  would  not  be 
fully  understood  in  this  way  by  both  partids — those 
who  agree,  and  those  who  differ  with  him.  Ev- 
ery member  thus  could  and  should  be  required  to 
assign  a  reason  for  "  the  hope  that  is  in  him." — 
If  they  should,  however,  distrust  themselves — 
they  could  then  write  out  their  reasons— or  write 
out  a  speech ;  and  in  this  form  present  them  to 
the  Convention ;  for  any  member  who  can  write 
out  a  report,  would  have  no  difficulty  in  writing 
out  a  speech.  But  the  gentleman  from  Ontario 
(Mr.  WORDEN)  had  alluded  to  another  reason, 
and  a  good  one — that  the  various  expositions  of 
the  Constitution,  from,  and  in,  the  reports  of 
these  committees,  are  always  resorted  to  hereaf- 
ter, with  the  view  to  influence  the  people  in  eith- 
er adopting  or  rejecting  the  various  amendments. 
It  is  true  that  the  Federal  Convention  never  would 
have  been  adopted  if  it  had  not  been  for  the  vari- 
ous reasons,  arguments,  and  opinions  assigned  by 
Hamilton,  Madison,  Jay  and  others;  and  which 
were  all  collected  and  published  in  a  work  called 
the  "  Federalist."  The  people  voted  for  it  because 
they  were  told  that  its  adoption  was  necessary,  in 
order  to  preserve  the  country.  He  was  willing 
that  any  member  hereafter  should  go  before  the 
people  and  explain  his  reasons  for  making  amend- 
ments, but  he  did  not  wish  to  see  it  done  by  a  writ- 
ten report ;  and  he  hoped  no  committee  would 
attempt  in  this  way  to  influence  the  •public 
mind  either  for  'or  against  the  new  constitution 
vhich  they  were  about  to  frame  ;  and  therefore 
he  was  clearly  in  favor  of  the  resolution. 

It  was  put  and  carried. 

Then  were  offerred  the  following  resolutions 
which  were  all  referred  to  the  committees  named 
and  desired  by  the  movers  thereof: 

JUSTICES'  COURTS— APPEALS. 
By  Mr.  RICHMOND  :— 

Resolved,  That  it  be  referred  to  the  committee  on  the 
judiciary  to  enquire  into  and  report  upon  the  propriety  of 
laving  all  appeals  from  judgments  in  justices'  courts 
amounting  to  $50  or  under,  where  the  parties  reside  in  the 
same  town,  finally  decided  by  an  appeal  to  a  town  court  to 
>e  composed  of  all  justices  of  the  peace  of  said  town. 


100 


RENT  CHARGES,  &c. 
By  Mr.  JORDAN  :— 

Resolved,  That  it  be  referred  to  the  committee  on  the 
creation  and  division  of  estates  m  lands,  to  enquire  into 
the  expediency  of  prohibiting  by  constitutional  provision, 
the  future  creation  of  any  estates  in  lands,  reserving  rents 
in  fee,  or  for  life,  or  for  any  longer  term  than  —  years  : 
also,  all  covenants  for  quarter  or  tenth  sales,  and  all  other 
covenants  in  restraint  of  alienation,  and  of  forfeiture. 

DISTRICT  ATTORNIES. 
By  Mr.  HAWLEY  :— 

Resolved,  That  the  Secretaries  of  the  Convention  be  re- 
quested to  call  upon  the  District  Attorneys  of  the  several 
counties  of  this  state  for  answers  to  the  following  inter- 
rogatories : — 

1  What  is  the  amount  of  bail  bonds  and  recognizances 
forfeited  in  your  county  in  the  Court  of  Oyer  and  Termi- 
ner  and  of  General  Sessions,  during  the  year  1845. 

2.  What  is  the  amount  of  recognizances  upon  which 
siuts  were  commenced  by  you  during  the  year  1845. 

3.  What  is  the  aggregate  amount  which  has  been  re. 
covered  in  such  suits,— the  aggregate  amount  of  damages 
and  costs  being  separately  stated 

4.  What  is  the  aggregate  amount  which  has  been  col- 
lected in  such  suits  from  the  defendants  therein. 

5.  What  is  the  aggregate  amount  of  costs  and  counsel 
fees  connected  with  such  suits  which  has  been  paid  by  or 
charged  to  the  county  or  to  the  people. 

RETROSPECTIVE  LEGISLATION. 

By  Mr.  RHOADES  :— 

Resolved,  That  it  be  referred  to  the  committee  on  the 
judiciary  to  enquire  into  the  expediency  of  amending  the 
constitution  so  as  to  prohibit  the  legislature  from  passing 
any  law  which  shall  suspend  or  alter  any  of  the  legal  or 
equitable  remedies  for  the  collection  of  debts  and  the  en- 
forcement of  contracts  so  as  to  operate  retrospectively. 

Mr.  BASCOM  said  this  more  properly  belonged 
to  the  committee  on  the  Legislature. 

Mr.  RHOADES  thought  not.  It  was  referred 
as  Mr.  R.  desired. 

JUDICIAL  DISTRICTS,  &c. 

By  Mr.  GARDNER  :- 

Resolved,  That  the  committee  on  the  judiciary  inquire 
into  the  expediency  of  dividing  the  state  into  judicial  dis- 
tricts, locating  in  each  district  a  proportionate  part  of  the 
judiciary  of  the  state — providing  for  the  election  of  all  ju- 
dicial officers  of  the  state  by  constituting  the  board  ol 
supervisors  of  the  counties  in  each  district  a  board  of  elec- 
tors  for  the  purpose,  requiring  the  majority  of  the  whole 
for  a  choice,  and  creating  a  board  of  canvassers  to  be  com- 
posed of  a  delegation  from  each  board  of  supervisors,  anc 
in  case  of  no  choice,  such  board  of  canvassers  to  have 
power  to  elect  from  the  whole  number  voted  for  by  the 
supervisors. 

COUNTY  OFFICERS-SHERIFF,  &c. 

By  Mr.  GARDNER: 

Resolved,  That  the  committee  on  the  election  and  pow 
«rs  of  local  officers  be  directed  to  inquire  into  the  expedi 
ency  of  abolishing  the  office  of  sheriff,  under  sheriff  anc 
deputies,  superintendents  of  the  poor  and  common  schools 
and  of  providing  for  the  election  of  a  single  officer  in  each 
county  charged  with  the  duty  of  the  offices  so  abolished 
and  with  such  other  powers  and  duties  as  may  be  confer 
red  by  law,  and  to  have  the  aid  of  the  constables  of  tlr 
towns  in  the  service  of  process,  and  as  the  general  peac 
officer  of  the  county. 

Mr.  RUSSELL  gave  notice  that  on  Monday  th< 
22d  of  June  instant,  he  should  move  to  reconsider 
the  vote  by  which  the  resolution  of  the  gentle- 
man from  Washington  (Mr.  BAKER)  had  jus 
passed.  Under  the  eloquent  speech  of  that  gen 
tleman,  the  committee  had  passed  it  without  uro 
per  reflection  ;  but  he  was  satisfied  that  many  o 
the  committees  ought  to  make  written  reports  ex 
planatory  of  their  reasons  tor  offering  the  varioui 
amendments  which  they  would  offer.  Many  gen 
tlemen  on  those  committees  there  were,  whose  ha 
bits  and  pursuits  comparatively  disqualified  them 


rom  making  such  a  speech  upon  this  floor  an 
;vould  enable  them  properly  to  explain  the  rea- 
ons  why  they  offered  the  amendments  which 
.vould  be  contained  in  their  reports;  and  fur- 
hermore— 

Mr.  CHATFIELD  suggested  that  the  gentle- 
man from  St.  Lawrence  had  better  make  his1 
speech  upon  this  subject  "  on  the  22d  day  of  June 
"nstant."  [Much  laughter.] 

Mr.  RUSSELL:  I  intend  to  do  so,  sir,  I  can 
assure  you.  [More  laughter.] 

The  following  resolutions  were  then  offered  and 
adopted: 

PAY  OF  THE  LEGISLATURE 

By  Mr.  TOWNSEND :- 

Resolved,  That  the  first  standing  committee  be  instruct- 
ed to  enquire  into  the  expediency  of  giving  to  the  mem- 
>ers  of  the  legislature  a  stated  annual  salary  in  place  of  a 
per  diem  allowance. 

SHORT  SESSIONS. 

By    .J.TAYLOR:— 

R  4»lved,  That  it  be  referred  to  the  committee  on  the 
apj  ,.ntment,  election,  &c.,  of  the  legislature,  to  enquire 
into  the  expediency  of  encouraging  short  sessions  of  the 
legislature  by  reducing  the  pay  of  the  members  after  a 
session  shall  have  continued  a  stated  period  of  time. 
COURT  OF  EQUITY. 

By  Mr.  BASCOM:— 

Resolved,  That  the  committee  on  the  judiciary  be  in- 
structed to  report  such  a  judiciary  system  as  will  render 
unnecessary  the  further  continuance  of  tribunals  of  exclu- 
sive equity  or  chancery  jurisdiction. 

Mr.  B.  said  he  would  offer  this  as  a  distinct  res- 
olution of  instruction  to  one  Committee  ;viz:  the 
Judiciary  Committee. 

Mr.  CHATFIELD  said  he  objected  to  the  use 
of  the  term  "  instructed"  in  the  resolution. 

Mr.  BASCOM  said  he  did  not  offer  it,  to  have 
it  referred  now ;  he  merely  wished  to  have  it  laid 
on  the  table,  to  be  taken  up  hereafter,  in  order  to 
provoke  discussion  on  the  subject. 

Mr.  WORDEN  said  it  was  quite  useless  to 
lay  resolutions  on  the  table  in  this  way,  if  it  was 
intended  to  have  them  understood  and  discussed  by 
members.  Lay  it  on  the  table,  and  so  far  as  all  but 
the  mover  was  concerned,  it  was  a  sealed  book. 
It  should  be  printed  and  fully  examined. 

Mr.  BASCOM  modified  his  resolution  so  as  to 
have  it  printed,  and  this  was  carried. 

PLAN  FOR  A  JUDICIAL  SYSTEM. 

Mr.  O'CONOR  then  presented  a  plan  for  a  judi- 
cial system,  which  he  would  not  fully  endorse  ;  but 
which  had  been  sent  to  him  by  a  highly  dis- 
tinguished gentleman  from  New-York,  whose 
name  he  was  not  now  allowed  to  mention ;  but 
whore  character  and  opinions  were  entitled  to 
the  highest  consideration.  He  would  move 
therefore,  out  of  respect  to  his  distinguished  con- 
stituent to  refer  the  resolution  to  the  judiciary 
committee,  and  to  have  it  printed. 

Mr.  MORRIS  said  that  he  had  4  or  5  plans  which 
had  been  sent  to  him  by  various  gentlemen  of  dis- 
tinguished consideration;  (a  laugh)  and  he  there- 
fore very  much  doubted  the  propriety  of  printing 
all  the  various  plans  that  would  come  into  thai 
house  ;  for  he  had  no  doubt  that  several  other  gen* 
tlemen  had  many  plans  for  a  Judicial  System.--^ 
There  was  hardly  a  man  of  talent  in  any  part  oj 
the  State  that  had  not  matured,  and  drawn  out  a 
system  of  his  own  that  he  was  desirous  to  have  pre» 


sented.  And  he  would  move  that  none  ot  them 
be  printed  until  the  committee  had  time  to  ex 
amine  them  all— and  so  with  this  onej  for  if  they 
once  began  to  print  all  the  plans  for  judicial  sys- 
tems, there  would  really  be  no  end  to  them. 

Mr.  PERKINS  said  that  there  were  many  other 
persons  that  wanted  to  see  these  plans  besides  the 
committee. 

Mr.  RUSSELL    differed  with    the    gentleman 
from  New  York  (Mr.  Morris  )     He   was  satisfied 
that  this  plan,  tromthe  statement  made  so  strong- 
ly by  the  distinguished  counsellor  from  New  York 
(Mr.  O'Conor)  was  worthy  of  being  printed ,  and  he 
was  bound  to  urge  that  it  be  printed,   and  that  it 
form  one  of  their  documents.     And  notwithsiand- 
ing  that  this  judiciary  committee  comprises  such 
a  very  able  array  of  talent,  and  high  legaj  experi- 
ence— (perhaps  the  most  able  and   talented  com. 
mittee   that  had  ever  been  formed  on  any  subject 
in  that  Hall,)   yet  it   was  very  important,  indeed, 
and  very  necessary   that  others  than   members  ot 
this  judicial  committee  should  see  this  plan,  coin- 
ing trom  such  a  high  source  as  the  gentleman  Horn 
New  York  pledged  himself  it  did.    And  others  alsi 
wanted  to  see  all  able  and  matured  plans  that  may 
be  offered— they   want  them  printed,  before  they 
go  to  the  committee,  or  whilst  they  are  being  con- 
sidered by    that   committee.     The    great  subject 
contained  in    this  paper— this   plan— would  more 
than  compensate  for  the  expense   incurred  by  the 
printing  of  it.     And  if  any  gentleman  should  rise 
here  and  present  any  great  and  valuable  plan  of  a 
judicial   system,  which  he  endorsed  in  whole,  01 
in    part,   and  which    he   deemed  worthy   of  hav 
ing  printed,   he    thought   it    no  more  than  wha 
was  due  in  common  courtesy,  to   yield  to  the  re 
quest,  and  to  have  the    plan  printed.     He  woul< 
say  further,  that  on  the  mere  point  of  econo 
my,  it  would  be  much  better  to  have  it  prin 
ted.     Members  must  know  its  contents ;  at  leas 
they  ought  to;    and    it  was    very    much    bet 
ter  to  print  it  and  read  it  quietly  at  their  leis 
ure,  than  to  sit  and  hear  it  read  from  the  desk  by 
the  Clerk  amid  the  noise  and  confusion  of  thi 
house ;  and  where  it  would  have  to  be  read,  per 
haps  two  or  three  times  over.    The  time  thus  ex 
pended,  would  cost  more  than  the  printing. 

Mr.  BAKER  rose  barely  to  say  that  until  h 
knew  something  more  of  these  various  plans,  an< 
of  this  one,  he  should  oppose  the  printing;  be 
cause,  notwithstanding  the  statements  of  th 
learned  and  distinguished  Counsellor  from  N.  Y 
(Mr.O'CoNOn)  there  was  this  point  about  it — if  w 
printed  the  plan  of  one  gentleman  (no  matter  o 
how  high  consideration  he  might  be)  we  mus 
feel  bound  to  print  all  of  the  15  or  50  plans  of  a 
the  gentlemen,  "highly  distinguished"  and  ( 
"great  consideration,"  in  and  out  of  the  Conven 
tion  who  might  think  proper  to  draw  up  plans  fo 
a  Judicial  System.  He  should  therefore  vot 
against  the  motion  to  print;  for  if  this  course  wa 
taken  it  would  only  lumber  up  their  desks, and  ad 
very  largely  to  the  expense  ot  the  session;  with 
out  a  corresponding  good  result.  Several  gentle 
men  here  have  plans,  and  some  very  good  ones — 
on  this  subject  of  the  Judiciary;  they  may  an 
will,  all  desire  doubtless  to  have  them  printed 
and  if  you  once  open  the  door  for  this  matte 
where  is  it  to  stop  ?  It  would  be  difficult  to  an 
swer. 


Mr.  RUSSELL  asked  the  last  speaker  (Mr.  BA« 
ER)  how  he  expected  to  understand  the  plans 
roposed  by  honorable  gentlemen,  unless  they 
ad  them  printed  and  then  were  to  read  the  docu- 
ents? 

Mr.  BAKER  said  that  he  expected  to  have  the 
Lan  sent  to  the  judiciary  committee  first;  let 
lem  examine  it ;  and  by  and  by  we  would  get 
icir  report  and  opinion  on  that  and  all  others ; 
nd  upon  that  point  they  would  vote.  That  was 
ic  way. 

Mr.  RUSSELL  said  that  would  not  answer. 
Mr.  PATTERSON   wished  particularly  to  en- 
uue  as  to  the  mode  of  pulling  these  papers,  plans, 
r  documents  upon  the  Journal.     How  were  they 
oted,  entered,  recorded,  or  referred  to  (here? — 
Vas  every  subject  thus  presented,  spread  out  at 
ull  length  on  the  journal?     Will    this   plan    that 
as  been  just  piesenttd  be  i-piead  outin  lull  ihere? 
Ie should  say  it  would.  It  had  been  presented  arid 
tceived;  it  is  discussed,  and  )our  jcurnal  will  eer- 
ainly  not  be  complete  without  it.  For  it  the  ie^- 
ution  be  entered,  without  the  contents  of  a  plan, 
our  journal  will  not  say  what  the  paper  contain- 
d,  iu  relation  to  which  the  resolution  was  oflei- 
d.     One  man    presents  a  plan   here   from   New 
fork;  another   sends    one   from  Buffalo ;    others 
rom  elsewhere — and  these  papers   are   all   thus 
pread  out  on  your  journal,  without  action  having 
>een  had   on  them  by  the  Convention.     Now,  he 
was  opposed  to  all  this;  he  would  much  rather  see 
he  report  upon  all  those   plans   before  they   are 
pread  on  the  journal.     They  were  not  similar  to 
i  petition  sent  to  the  legislature ;  for  that  required 
merely  that  the  substance   ot   its  contents  should 
be  endorsed  on  the  buck  of  it,  and   that   endorse, 
ment  only  (significant  of  the  character  of  the  peti- 
tion) is  entered  on  the  journal.     But  here,  in  the 
present  case,  the  whole  paper  will  have  to  go  on. 
^The  endorsement  was  here  read.)     And  having 
:hus  put  it  on,  it  will  be  printed  with,  or  in  the 
ourual  at  full  length  ;  and  therefore  to  order  es- 
pecially the  printing  of  it  as  a  separate  document, 
would  be  to  cause  it  to  be  printed  twice  over ;  and 
ntwo  distinct  forms.     Without  that  order  or  no- 
ice  to  print,  it  would  all  go  on  the  journal ;  and 
he  therefore  moved  that  it  be  merely  received  and 
recorded  as  an  ordinary  petition.    Thus  the  sub- 
tance  of  it  only  would ^go  on  the  journal,  and  the 
paper  go  to  the  proper  committee. 

Mr.  O'CONOR  asked  if  the  gentleman  from 
Chautauque  (PATTERSON,)  would  otter  any  amend- 
ment so  as  to  effect  his  object  ? 

Mr.  LOOMIS  said  that  if  a  member  merely 
sends  up  a  pape?  to  the  President,  and  asks  that 
it  be  referred  to  the  judiciary  committee,  then  the 
substance  ot  it  only  is  stated  on  the  journal ;  and 
it  is  not  therefore  all  printed.  Now  if  the  gentle- 
man from  New  York  leaves  out  the  "Resolved 
that  it  be  printed,"  that  will  be  the  right  course. 

Mr.  MARVIN  said  that  the  explanation  of  the 
gentleman  from  Herkimer  (Mr.  LOOMIS,)  had  re- 
lieved in  two  minutes  the  subject  from  all  its  dif- 
ficulties. And  if  the  gentleman  from  New  York 
had  sent  this  merely  to  the  President,  and  asked 
its  reference,  that  would  have  been  all  that  was 
necessary. 

The  PRESIDENT  sustained  the  views  of  Mr 
LOOMIS. 

Mr.  PATTERSON  said  the  best  way  was  to  put 


<^H    ^aS^W 

^Mf  \ 

UNIVERSITY  I 


102 


down  on  the  journal  only  that  Mr.  O'CoNOR  sub- 
mitted a  plan  for  a  judicial  system,  and  asked  its 
reference  to  the  judiciary  committee,  without  the 
plan  going  on  the  journal. 

Mr.  MARVIN  said  it  would  be  best  to  leave  out 
the  words,  "  without  going  on  the  journal."  It 
would  under  all  ordinary  rules,  no  more  go  on  the 
journal  than  would  a  mere  petition.  And  to 
insert  the  words  **  without  going  on  the  Jour- 
nal," is  to  imply  that,  without  that  specification, 
it  would,  as  a  matter  of  course  and  in  the  ordinary 
way  be  entered  at  full  length  on  the  Journal. 
Let  it  merely  be  assimilated  to  the  form  of  an 
ordinary  petition. 

Mr.  O'CONOR  accepted  the  medification  not  to 
print  it  at  all. 

The  resolution  was  then  adopted  simply  to  re- 
fer it. 

Mr.  TALLMADGE :  What  then,  becomes  of 
the  question  of  printing? 

Mr.  SWACKHAMER:  Gone  over-board. 

Mr.  WARD  then  said,  that  as  they  had  trans- 
acted quite  a  large  amount  of  business  that  day  ; 
and  referred  to  the  various  committees,  quite  as 
much  as  they  could  possibly  do  justice  to,  tor  a 
week  to  come,  he  would  move  that  the  Conven- 
tion do  now  adjourn.  This  was  carried. 

Adjourned  to  11  A.  M.  on  Monday. 

MONDAY,  (13th  day)  June  15. 

Prayer  by  the  Rev.  Mr   BRITON. 

RETURNS  FROM  COUNTY  CLERKS,  &c. 

The  PRESIDENT  said  that  the  Secretary  had 
received  a  number  of  communications  from  sev 
eral  of  the  County  Clerks,  Surog^tes,  Clerks  of 
Boards  of  Supervisors,  &c.  &c.,  in  reply  to  the  let- 
ter of  enquiry  (as  per  motion  of  Mr.  KIRKLAND,) 
the  Convention  had  directed  to  be  sent  to  them. 
Other  returns  were  hourly  expected  ;  they  treated 
of  the  various  expenses  of  our  courts,  civil  and 
criminal;  and  the  Convention  should  arrange  for 
some  dispositioR  of  them. 

Mr.  CHATFIELD  thought  that  all  these  an- 
swers ought  to  be  referred  to  a  distinct  committee 
as  fast  as  they  came  in;  and  he  would  make  a  mo 
tion  to  raise  a  committee  of  5  for  that  purpose. 

Mr.  PERKINS  said  that  all  the  information  con. 
tained  in  these  returns  belonged  strictly  to  the 
judiciary  system,  and  all  this  matter  from  the  clerks 
of  counties  and  other  officers,  with  their  powers, 
came  clearly  under  the  purview  of  the  Judiciary- 
committee.  The  enquiries  had  been  made  for  the 
benefit  of  that  committee,  and  they  had  best  be 
referred  to  that  committee,  to  let  them  make 
such  a  disposition  of  them  as  they  think  proper. 
The  Secretary  can  first  digest  and  arrange  them. 
But  any  other  committee  cannot  know  what  to  do 
with  them  so  well  as  the  Judiciary  committee. 

Mr.  PATTERSON  said  that  it  seemed  to  him 
the  most  proper  course  would  be  to  send  all  these 
communications,  returns,  reports,  or  whatever 
they  were,  to  the  7th  standing  committee,  which 
has  cognizance  of  those  officers  whose  duties  and 
powers  are  local.  That  was  the  proper  com- 
mittee, and  not  the  judiciary  committee. 

Mr.  KIRKLAND  said  that  this  was  a  matter 
which  was  for  the  benefit  of  the  whole  Conven- 
tion, and  not  solely  for  the  mere  benefit  of  the 
judiciary  committee.  That  committee  already 
had  quite  enough  business  to  attend  to  without 


having  the  labor  of  supervising  and  sorting  all 
these  papers ;  and  he  thought  that  there  could 
be  no  better  plan  than  that  proposed  by  Mr. 
CHATFIELD,  to  raise  a  new  committee,  whose  du- 
ty it  should  be  to  digest  and  sort  all  these  returns; 
to  make  a  complete  but  condensed  abstract  of 
them,  and  to  put  them  in  such  a  form  as  to  ^ren- 
der them  intelligible  to  the  Convention.  Tt  was 
not  at  present,  certainly,  the  duty  of  any  of  the 
standing  committees  to  overhaul,  and  arrange  all 
these  papers,  as  they  came  in ;  and  therefore  he 
hoped,  that  no  objection  would  be  offered  to  a 
new  committee. 

Mr.  JORDAN  said  he  understood  it  was  pro- 
posed to  have  this  committee  prepare  this  mass  of 
information  in  a  proper  form ;  for  as  these  returns 
are  received  now  they  would  be  exceedingly  em- 
barrassing to  the  judiciary  committee.  A  special 
committee  might  digest  them,  and  give  all  the  re- 
sults in  such  a  form  as  would  be  easy  to  manage ; 
and  he  hoped  they  would  come  to  that  arrangement, 
so  that  they  could  contract  and  consolidate  all 
this  information,  and  then  proceed  with  the  regu- 
lar business. 

Mr.  SALISBURY  made  a  few  remarks,  but 
spoke  in  so  low  a  tone  of  voice  that  he  was  not 
understood,  except  to  say  that  this  information 
ought  to  be  spread  on  the  tables  of  the  members 
in  some  form  or  other. 

Mr.  CHATFIELD  hoped  the  Convention  would 
agree  witli  him;  as  these  desultory  matters  were 
coming  in  now  from  all  parts,  no  present  commit- 
tee  could  take  hold  of  them ;  and  to  send  them  to 
any  of  the  18  would  be  a  great  waste  of  time. 

Mr.  SALISBURY  again  rose,  but  was  not  un- 
derstood. 

Mr.  CHATFIELD'S  motion  was  then  ngreed  to. 
NON-IMPRISONMENT  FOR  DEBT. 

Mr. 'TALLMADGE  presented  the  following, 
which  was  referred  : 

Resolved,  That  it  be  referred  to  the  committee  on  the 
judiciary  to  consider  and  report  on  the  expediency  of  in" 
corporating  into  the  Constitution  the  principle  of  non-im' 
prisonment  for  debt,  and  providing  the  right,  in  any  suit 
for  the  collection  of  debt,  to  charge  that  there  had  been  de- 
ception or  fraud  in  the  creation  or  contracting  of  the  de- 
mand; and  upon  conviction  thereof,  the  party  defendant 
shall  be  liable  to  imprisonment,  or  such  other  personal  lia- 
bility as  shall  be  provided  by  law. 

NEW.  JUDICIARY  SYSTEM. 

Mr.  TALLMADGE  then  said  that  he  had  a  plan 
for  a  judiciary  system,  which  had  been  drawn  up 
and  sent  to  him  by  a  gentleman  from  the  Western 
part  of  the  State. 

Mr.  STRONG  rose  to  enquire  if  that  communi- 
cation in  all  its  length  and  breadth  would  go  on 
the  journal  ?  He  was  decidedly  opposed  to  having 
all  these  rambling  communications  from  private 
citizens,  of  all  parts  of  the  State,  sent  here  to  lum- 
ber up  the  journal ;  whilst  at  the  same  time  they 
did  not  know  the  contents  of  them.  He  would 
move  to  have  it  left  off  the  journal. 

Mr.  JONES  said  it  was  not  at  all  necessary  to 
make  the  motion  to  have  such  papers  left  off 
the  journal — any  memorial  or  petition  presented 
here,  which  is  not  read  or  printed,  but  which  is 
merely  asked  to  be  referred  to  an  appropriate  com. 
mittee,  would  not,  of  course,  under  the  rules  be  put 
upon  the  journal ;  the  clerk  had  no  authority  at  all 
to  enter  this  on  the  journal.  Let  him  write  mere- 
ly,  "  Mr.  Tallmadge  presented  a  plan  for  a  judi- 


103  ' 


ciary  system,  which  without  being  read  or  printed 
was  referred  to  the  judiciary  committee."  That 
is  all  that  was  necessary. 

The  PRESIDENT  stated  the  course  pursued  on 
Saturday  in  relation  to  the  plan  prescribed  by  Mr. 
O'CoNOR. 

Mr.  STRONG  agreed  with  the  gentleman  from 
New  York  (Mr.  JONES)  that  these  papers  ought 
not  to  go  on  the  journal  j  and  the  question  ought 
to  be  settled  now  so  that  we  should  not  have  any 
of  this  trouble  hereafter  about  them. 

Mr.  HOFFMAN  said,  a  question  had  been 
raised  as  to  whether  this  paper  was  to  be  drawn 
out  at  full  length  on  the  journal ;  thai  was  not  the 
usual  course,  any  more  than  a  whole  petition  is 
drawn  out  on  the  journal.  Nothing — but  just  such 
a  caption  as  the  clerk  chooses  to  give  it,  is  enter 
ed  there.  And  he  hoped  that  would  be  the  course 
now  adopted,  by  the  decision  of  the  Chair,  with- 
out  any  motion  on  the  subject. 

Mr.  WORDEN  said  there  was  no  standing  rule 
that  these  papers  should  be  entered  on  the  jour- 
nal in  full  ;  if  there  was,  let  the  gentleman  from 
Monroe,  (Mr.  STRONG,)  move  to  amend  it,  to  pre- 
vent such  an  anomaly  as  putting  all  these  in  full 
on  the  journal.  He  hoped  the  rule  would  not  be 
considered  by  any  one  to  have  such  a  construc- 
tion, and  he  hoped  that  the  Chair  would  not  put 
any  such  construction  op  it. 

The  PRESIDENT  again  referred  to  Mr.  0'. 
CONOR'S,  plan  of  Saturday. 

Mr.  MARVIN  did  not  then  understand  that 
that  course  had  been  adopted  as  a  rule  of  the  com- 
mittee, but  merely  as  a  mere  suggestion  of  his 
colleague. 

The  PRESIDENT  said  that  had  been  made  a 
special  case. 

Mr.  MARVIN  said  that  he  had  supposed  so— 
the  parliamentary  law  certainly  was  to  put  only 
an  abstract  of  ihese  papers  on  the  Journal — the 
mere  title;  and  it  would  occasion  great  confusion 
and  delay  if  every  time  these  were  presented  we 
should  have  to  move  always  to  say — ««  without 
their  being  printed,"  "  without  their  being  read," 
"  without  their  being  eniered  on  the  Journal," 
and  so  on. 

ARRANGEMENT  OF  THE  JOURNAL. 
Mr  HAWLEY  said  in  order  to  settle  this  he 
had  drawn  up  a  new  rule  oj  resolution,  to  the  ef. 
feet  that  hereafter  the  mere  endorsement  on  the 
papers  should  be  entered  on  the  Journal.  He  read 
his  resolution  : 

Resolved,  That  every  member,  previous  to  presenting  a 
petition,  memorial,  or  propositien  for  an  amendment  ot  the 
constitution,  shall  endorse  on  the  same  the  substance 
thereof,  and  add  his  namej  and  on  the  reception  or  refer- 
ence of  such  petition,  Sic.,  the  endorsement  only  shall  be 
entered  on  the  journal. 

Mr.  PATTERSON  said  that  might  answer  in 
some  respects,  but  there  was  another  way  to  dis- 
pose of  all  these  papers,  and  that  was  better  altoge- 
ther than  to  bring  them  before  the  House.  He  had 
received  a  dozen  or  fifteen  plans  already,  and  they 
were  coming  to  him  through  the  post  office  every 
day;  he  intended  to  lay  them  all  before  the  Judi- 
ciary  committee,  aad  not  to  trouble  the  House 
with  them  at  all;  and  if  every  gentleman  would 
take  this  course  the  whole  matter  would  easily 
and  soon  be  disposed  of.  The  committee  would 
quite  as  much  notice  of  them,  as  if  they  had 
e  through  the  House;  and  in  all  cases  where 


papers  are  not  intended  fur  the  action  of  the 
House,  it  was  best  to  send  them  in  that  way  to  the 
committees;  for,  after  all,  they  were  merely  the 
private  opinions  of  individuals. 

Mr.  TALLMADGE  said  that  his  apology  for 
the  course  he  had  taken  with  this  plan,  and  for 
not  sending  it  privately  to  the  president  was  to  be 
found  in  the  fact,  that  the  other  day  he  did  pro. 
pose  or  suggest  such  a  course  ;  and  was  then  met 
by  cries  of  "  No,  no,  no,"  from  all  parts  of  the 
House.  Therefore  to-day  he  took  another  course. 

Mr.  HAWLEY  said  the  course  suggested  by 
the  gentleman  from  Chautauque  (Mr.  PATTERSON) 
would  certainly  not  answer.  If  that  was  adopted, 
such  a  numbemof  multiplied  crude  papers  would 
be  presented  as  would  lumber  up  the  files  of  those 
committees  to  such  an  extent  that  they  would 
never  be  able  to  get  along  with  their  business.— 
By  and  by  numeroas  petitions  will  come  in — the 
proceedings  of  public  meetings,  &c.  &c.  and  oth- 
er responsible  bodies  ;  and  no  one  ought  to  be  al- 
lowed the  privilege  of  sending  these  matters  on 
his  own  responsibility  to  the  committees,  or  of 
keeping  them  back  as  he  pleased.  And  when  sent 
they  could  never  get  such  a  consideration  as  they 
deserve  unless  they  are  passed  upon  by  the  House 
first.  He  therefore  pressed  his  rule,  and  referred 
to  the  discussion  on  this  subject  on  Saturday  and 
also  this  morning,  to  show  that  we  should  have 
the  same  every  day  unless  his  rule  adopted. 

The  rule  was  then  adopted,  and  under  it  Mr. 
T's.  paper  was  referred. 

NE»V  JUDICIAL  DISTRICTS-SUPREME  COURT  &C 

Mr.  TALLMADGE  then  presented  the  follow- 
ing, which  was  read  and  adopted  : 

Resolved,  That  it  be  referred  to  the  committee  on  the 
judiciary  to  inquire  into  the  propriety  of  adopting  as  a  prin- 
ciple in  the  judiciary  system,  that  the  State  be  oivided  in- 
to four  districts;  that  a  Supreme  Court  be  established  in 
each,  of  not  less  than  four  judges;  of  jurisdiction  law  and 
equity;  the  judges  to  hold  circuits;  the  term  of  office  to  be 
not  less  than  7  nor  more  than  10  years;  to  be  ineligible 
to  hold  or  take  any  other  office  or  commission  during  the 
term;  or  to  have  the  power  of  appointing  any  other  offi. 
cers,  or  to  receive  pay  or  fees  other  than  the  salary  allow- 
ed by  law. 

If  a  separate  Court  of  Chancery  be  established,  its  Chan- 
cellor to  hold  for  the  same  term  of  not  less  than  7  nor 
more  than  10  years;  and  to  be  subject  to  like  ineligibility 
to  hold  or  take  office  during  the  term,  and  the  like  restric- 
tions on  the  above  judges.  The  judges  or  Chancellors  to 
be  elected  in  the  State  or  Districts  of  their  jurisdiction. 

A  Court  lor  the  Correction  of  Errors  to  be  established, 
to  consist  of  7  judges;  the  jurisdiction,  appeals  and  writs 
of  error;  the'term  of  office  to  be  7  yearsj  ineligibility  and 
restrictions  as  above  stated.  The  judges  to  be  appointed 
by  the  Governor  and  Senate. 

The  County  Courts  to  be  continued.  A  judge  to  hold 
for  a  term  of  years;  several  counties  may  be  embraced  in 
his  jurisdiction  Also,  to  try  issues  referred  from  Supreme 
Court.  The  same  ineligibility  and  restrictions  as  before 
mentioned.  To  be  elected  in  the  county  or  District  of  his 
jurisdiction. 

PRIVATE  ROADS  AND  BRIDGES. 
Mr.  WELLS  then  said  that  in  consequence  of  a 
recent  decision  of  the  Supreme  Court,  declaring, 
in  effect,  that  there  was  now  no  law  to  authorize 
the  construction  of  private  roads  and  bridges,  he 
should  offer  the  following,  which  was  adopted  : — 

Resolved,  That  the  committee  on  the  rights  and  privi- 
leges of  citizens  be  directed  to  consider  and  repert  on  the 
propriety  and  necessity  of  incorporating  in  the  constitu- 
tion some  provision  authorizing  private  roads  and  bridges 
to  be  constructed  on  just  compensation  being  made  to  the 
owner  or  owners  of  the  lands  taken  for  these  purposes. 


104 


The  five  following  resolutions  were  then  offered 
and  adopted: 

FREEDOM  OF  CONSCIENCE. 
By  Mr.  CORNELL:— 

Resolved,  That  it  be  referred  to  the  committee  on  the 
rights  and  privileges  of  citizens  of  this  state,  to  inquire  into 
the  expediency  ot  making  constitutional  provision  to  se- 
cure the  practical  enjoyment  of  perfect  liberty  of  con- 
science, opinion  aod  belief  to  all  persons  within  the  juris- 
diction of  this  state,  and  to  prohibit  all  political  and  civil 
disabilities  on  account  thereof  or  in  connection  therewith. 

EDUCATIONAL  FUNDS— COMMON  SCHOOLS. 

By  Mr.  R.  CAMPBELL,  Jr.  :— 

Resolved,  That  it  be  referred  to  the  committee  on  edu- 
cation, &c.,  to  consider  and  report  as  tollhe  propriety  of 
constitutional  provision  for  the  security  of  the  common 
school,  literature,  deposite  and  other  trust  funds,  from  con 
version  or  destruction  by  the  legislature,  and  the  estab- 
lishment of  such  a  system  of  common  schools  as  will,  by 
taxation,  bestow  the  facility  of  acquiring  a  good  education 
on  every  child  in  the  state, 

TAXATION. 
By  the  same  : — 

Res  jived,  That  it  be  referred  to  the  committee  on  the 
powers  and  duties  of  the  legislature,  except,  &c.,  to  consi- 
der and  report  as  to  the  propriety  of  requiring  by  constitu- 
tional provision,  that  all  property  within  this  state  protect- 
ed by  its  laws,  except  that  which  belongs  to  the  people  ol 
this  state,  shall  be  assessed  for  taxation  equally  and  at  its 
intrinsic  value. 

PRACTICE  OF  COURTS. 

By  Mr.  STOW  :— 

Resolved,  That  the  judiciary  committee  be  instructed  to 
inquire  into  the  expediency  of  providing  for  the  appoint 
ment  of  a  commission  to  revise  the  system  of  practice  and 
proceedings  of  courts. 

BIENNIAL  SESSIONS. 

By  Mr.  CORNELL:— 

Resolved,  That  it  be  referred  to  the  committee  on  the 
apportionment  &c.  of  the  legislature,  to  inquire  into  the 
expediency  of  providing  for  biennial  sessions  ol  the  legis- 
lature. 

THE  PRACTICE  OF  LAW. 

Mr.  STRONG  said  he  would  now  offer  a  resolu- 
tion which  he  tried  to  do  the  other  day,  but 
which  he  had  not  been  able  to  do  betore  now,  for 
gentlemen  were  so  very  anxious  to  be  in  first. — 
He  saw  we  were  to  be  flooded  with  resolutions, 
and  he  would  therefore  send  up  one  expressive  of 
his  views  on  certain  matters  and  things  that 
ought  to  be  brought  up  before  the  Convention. 
It  was  this : 

Resolved,  That  the  committee  on  Rights  and  Privileges 
be  instructed  to  inquire  into  the  expediency  of  reserving 
to  the  people  their  dormant  right  of  freely  choosing  their 
counsel  and  attorneys  in  all  courts  of  law,  with  the  like 
freedom  from  State  interference  that  they  now  enjoy  in 
the  selection  of  their  spiritual  advisers,  and  of  their  Legis- 
lators, Delegates  and  Governors;  so  that  the  anti-republi- 
can usage  by  means  of  which  a  close  and  gainful  monop- 
oly 01  the  legal  practice  has  hitherto  been  secured  to  a 
wellorganizedorderoflicensedadvocat.es  and  solicitors, 
to  the  exclusion  of  the  rest  of  community,  may  speedily 
cease. 

It  was  adopted. 
SINGLE  SENATE  DISTRICT— 43  SENATORS. 

By  Mr.  CHATFIELD: 

Resolved,  That  it  be  referred  to  the  committee  on  the 
apportionment,  &c.,  of  the  legislature,  to  inquire  into  the 
expediency  of  increasing  the  number  of  senators  to  48,  and 
dividing  the  state  into  single  senate  districts— the  senators 
to  be  elected  biennially  and  to  hold  their  offices  for  two 
years. 

It  was  adopted. 


ANOTHER  COMMITTEE. 

By  Mr.  SHAW: 

Resolved,  That  for  the  purpose  of  expediting  business 
and  producing  uniformity,  that  a  committee  of  five  be  ap- 
pointed by  the  President,  to  which  shall  be  referred  all 
resolutions  intended  for  the  standing  committees,  and 
whose  duty  it  shall  be  to  adjust  and  arrange  them  and  re- 
fer them  to  the  appropriate  standing  committees. 

Mr.  RICHMOND  was  opposed  to  this,  and 
hoped  it  would  not  be  adopted.  Every  resolution 
that  was  to  be  referred  ought  to  go  right  direct 
from  this  body;  and  no  committee  ought  to  have 
power  as  that  now  proposed. 

Mr.  TOWNSEND  was  of  precisely  the  same 
opinion;  the  presentation  of  these  resolutions 
ought  to  be  encouraged — every  iacility  should  be 
given  to  gentlemen"  to  present  them;  they  were 
in  fact  the  short  speeches  of  members,  and  no  re- 
strictions should  be  placed  on  them.  They  ought  to 
be  received  with  respectful  attention;  and  they 
would  thus  obtain  the  views  of  all  gentlemen  as 
to  reforms  of  the  Constitution,  besides  other  val- 
uable information.  No  committee  ought  to  have 
so  great  a  discretionary  power  as  that  the  resolu- 
tion contemplated. 

Mr.  RICHMOND  said  this  was  like  the  plan 
adopted  by  the  Legislature;  where  at  the  close  of  a 
session  a  committee  of  13  or  17  was  appointed  to  ar- 
range the  unfinished  business  for  final  disposition. 
It  was  m  fact  transferring  fhe  duties  of  Legislation 
to  that  committee;  they  could  thus  reject  bills 
or  direct  them  to  be  passed.  No  committee  of 
5  should  have  power  to  say  what  shall  or  shall  not 
be  sent  to  an  appropriate  committee. 

Mr.  SHAW  said  that  probably  another  resolu- 
tion, which  was  on  the  same  piece  of  paper,  and 
which  he  had  intended  to  offer,  would,  if  it  was 
read,  remove  all  the  objections,  and  fully  explain 
his  object.  It  was  read  thus  : — 

Resolved,  That  all  resolutions  and  propositions  intend- 
ed  for  standing  committees  be  sent  to  the  President,  read 
by  the  clerk,  and  referred  to  the  select  committee  of  five, 
without  motion  or  debate,  if  no  objection  is  made. 

Mr.  STRONG  said  lhat  the  proposition  contain- 
ed in  the  last  resolution  was  precisely  what  they 
were  doing  there  then,  and  had  been  doing  for 
two  weeks.  Therefore  this  resolution  was  unneces- 
sary ;  and  the  first  resolution  was  decidedly  objec- 
tionable, because  it  would  give  a  very  dangerous 
power  to  that  committee  of  5  ;  the  power  to  reject 
any  papers  they  thought  proper,  so  that  they  would 
never  reach  a  committee.  This  is  too  dangerous 
a  power  to  be  given  to  any  committee  any  where. 
It  is  not  democratic — and  he  was  a  strict  demo- 
crat, and  he  hoped  this  democratic  Convention 
would  not  sanction  any  doctrine  so  contrary  to  all 
the  natural  principles  of  justice  and  right. 

The  two  resolutions  of  Mr.  SHAW  were  then 
put  separately,  and  lost. 

THE  CANALS. 

Mr.  AYRAULT  offered  this,  which  was  adop. 
ted:— 

Resolved,  That  it  be  referred  to  the  third  standing  com- 
mittee  to  inquire  into  the  propriety  of  making  constitution- 
ftl  provision  for  the  completion  of  the  unfinished  canals, 
including  the  enlargement  of  the  Erie  Canal,  by  appropria- 
ting the  revenues  arising,  and  to  arise,  from  said  canals. 

RAILWAY   CORPORATIONS. 
Mr.  LOOMIS  offered  a  plan  for  forming  or  in- 
corporating Railway  Associations,  and  it  was  re- 
ferred to  the  committee  on  Incorporations. 


105 


PRINTING  OF  DOCUMENTS. 
Mr.  A-  WRIGHT  asked  if  the  committee  had 
as  yet  taken  any  action  or  order  as  to  the  amount 
or  number  of  the  various  documents  that  were  to 
be  printed  for  the  members.  The  number  had 
been  usually  160— but  that  was  quite  too  small.— 
Presently,  the  reports  of  committees  would  be 
coming  in,  and  other  valuable  documents;  and  it 
was  desirable  to  have  at  least  one  extra  copy  to 
put  by  lo  hiwe  bnund  up;  and  one  was  wanted  to  ex- 
amine, and  conduit,  and  analyze,  so  that  all  might 
come  to  a  ritjht  conclusion  on  a  subject.  He 
would  offer  this: — 

Resolved,  That  the  usual  number  of  reports  of  commit- 
tees and  propositions  of  amendments  to  the  Constitution, 
for  the  purpose  of  printing,  be  fixed  at  300. 

Mr.  HARRIS  was  in  favor  ot  the  resolution.— 
He  hoped  it  would  pass ;  he  had  prepared  one  to 
have  200  copies  ;  but  300  was  not  one  to  many  ; 
if  any  one  lost  a  document,  the  Serjeant-at-Arms 
was  not  able  to  supply  it. 

Mr.  HAWLEY  thought  300  none  too  many. 

Mr  CHATF1ELD  doubted  whether  it  would 
be  necessary  to  print  300  copies  of  documents  pre- 
sented; a  great  deal  of  matter  would  be  sent  to 
them.  He  did  not  object  to  print  the  reports  oi 
standing  committees. 

Mr.  STETSON  thought  that  there  were  to  be 
no  reports  from  standing  committees. 

Mr.  CHATF1ELD.  The  gentleman  had  heard 
wrong,  the  standing  committees  will  report ;  he 
at  the  head  of  one,  and  we  hope  to  have  his  report ; 
but  not  any  written  aiguments.  That  was  the  dif- 
ference. 

Mr.  PATTERSON  enquired  if  on  ordering  the 
printing  of  two  or  three  times  the  usual  number 
of  copies — it  would  mean  two  or  three  times  30C 
or  not.  In  cases  where  additional  numbers  shoulc 
be  ordered,  he  thought  that  the  usual  number  in 
this  ordering  of  extra  printing  should  consist  o 
150.  He  vvoui1.!  move  that  as  an  amendment. — 
Mr.  P.  ex"lain-,!d  that  the  usual  number  in  th 
legislature  in  cases  where  no  extra  copies  were 
ordered,  was  250,  and  where  extra  copies  were  or 
dered  of  150. 

Some  conversation  ensued  here  between  Messrs 
HARRIS  and  PATTERSON,  as  to  the  rules  in 
the  legislature  on  this  subject,  when 

Mr.  PERKINS  said  that  the  Assembly  last  win 
ter  in  the  middle  of  the  session,  determined  tha 
when  more  than  the  usual  number  of  copies  wer 
ordered,  the  person  making  the  motion  shoul 
designate  the  number  in  specific  terms. 

Mr.  HAWLEY  called  tor  the  reading  of  th 
rule  ot  the  last  house,  in  relation  to  the  printing 
It  was  read — when  after  some  further  conversa 
tion  on  the  subject,  the  resolution  as  amended  o 
the  suggestion  ot  Mr.  PERKINS,  was  adopted. 

THE  ABOLITION  OF  CAPITAL  PUNISHMENT. 

Mr.  CONELY  offered  the  following  resolution 

Resolved,  That  it  be  referred  to  the  committee  on  th 

powers  and  duties  of  the  legislature,  to  enquire  into  an 

take  into  consideration  the  propriety  of  making  constit 

tionai  provision  for  the  abolition  of  capital  punishment. 

It  was  adopted. 

THE  PARDONING  POWER. 
Mr.  CONELY  then  offered  the  following  : 
Resolved,  That  it  be  referred  to  the  5th  standing  com 
raittee,  to  take  into  consideration  the  propriety  of  vestin 

7 


e  pardoning  power  in  the  Governor  with  the  advice  and 
nsent  of  the  Senate. 

It  was  also  adopted. 

AN  EXPLANATION. 

Mr.  STOW  said  that  on  Saturday  last,  he  had 
ibrnitted  a  resolution  referring  it  to  the  Commit- 
e  on  the  Elective  Franchise,  to  inquire  into  the 
xpediency  of  securing  to  every  person  the  privi- 
ge  of  having  a  permanent  interest  in  real  estate, 

having  it  recorded  and  publicity  given  to  siich 
ecord.  The  property  so  described,  not  to  be  en- 
umbered  by,  or  liable  for,  any  debt  whatever, 
"he  resolution  he  had  submitted  seemed  to  have 
een  misunderstood  in  its  effect  and  object.  It 
as  apprehended  by  some  that  it  aimed  at  the  se- 
urity  of  property.  This  was  an  entire  miscon. 
eption  of  the  resolution.  He  had  Bought  in  its 
ntroduction  the  benefit  of  *he  masses,  and  to  pro- 
iote  the  cause  of  humanity.  He  now  asked  that 
le  resolution  might  be  printed,  to  prevent  any 
urther  misunderstanding.  This  was  agreed  to. 

NATURALIZATION  OF  CITIZENS. 
Mr.  WORDEN  offered  the  following  resolution  : 

Resolved,  That  the  committee  on  the  elective  franchise, 
nquire  into  the  expediency  of  providing  in  the  constitution 
r  the  exercise  of  the  right  of  suffrage,  so  that  in  no  in- 
ance  shall  the  exercise  oi  that  right  depend  on  the  uatu- 
alization  laws  of  congress. 

Mr.  W.  said  that  as  his  friend  from  Erie  had 
een  so  unfortunate  as  to  have  been  misconceived 
nd  misunderstood  in  the  propositions  he  had  sub- 
nitted,  he  begged  leave  to  say  a  single  word  in 
egard  to  the  resolution  he  had  offered,  in  oider 
hat  he  (Mr.  W.^  might  not  also  be  misunderstood. 
As  the  present  Constitution  now  stands,  the  right 
t  suffrage  was  conferred  upon  citizens,  but  it  does 
iot  designate  whether  they  shall  be  citizens  of  this 
State  or  of  the  U.  States.  There  is  no  provision  in 
ur  Constitution  or  laws  by  which  persons  can  be 
made  citizens  ot  this  State,  as  contra- distinguish- 
ed from  citizens  of  the  United  States.  We  have 
virtually  by  our  statutes,  given  that  construction 
o  the  word  Citizens  in  one  Constitution — and 
;ve  have  held  that  no  person  not  natural  born  can 
Decome  a  citizen  of  this  State  except  through  the 
action  of  the  federal  Congress.  He  desired  there- 
ore  to  present  the  question  whether  it  would  not 
DC  wise  in  us  to  establish  a  rule  in  this  respect, 
totally  independent  of  the  action  of  Congress.  As 
it  now  stands,  Congress  may  enlarge  or  shorten 
the  period  ot  residence  necessary  lor  citizenship, 
and  in  that  wa/  might  affect  what  may  be  sup- 
posed to  be  the  interest  of  citizens  of  this  State, 
and  legislate  contrary  to  the  express  bill  of  the 
People.  In  regard  to  naturalization,  it  was  early 
decided  under  the  kderal  Constitution  that  each 
State  possessed  naturalization  powers  for  itself. — 
At  an  early  day  the  U.  S.  Circuit  Court  of  the  dis- 
trict of  Pennsylvania  made  that  decision.  Sub- 
sequently, there  were  opinions  to  the  contrary,  in 
the  Supreme  Court,  but  more  recently  an  able 
and  learned  judge,  now  deceased,  had  classed[the 
power  to  pass  naturalization  laws,  as  among  those 
which  the  States  exercised  in  connection  with  the 
Federal  Congress.  He  thought  the  subject  was 
worthy  of  examination,  and  he  desired  nothing 
more  in  what  he  said  now,  than  not  to  be  misun- 
derstood. He  thought  it  expedient  that  in  the 
new  Constitution,  we  should  so  fix  the  right  of 
suffrage  as  applicable  to  that  class  of  persons  call. 


106 


ed  aliens,  so  that  their  admission  to  the  right  to 
vote,  should  in  no  case  depend  upon  the  action  o 
Congress. 

The  resolution  was  adopted. 
Mr.  CHATFIELD  said  that  there  had  been 
some  two  or  three  propositions  submitted  by  gen- 
tlemen in  different  forms  from  those  submitted  to 
the  house,  and  referred  to  the  committees.  II 
gentlemen  were  ready  to-day  to  give  us  the  rea- 
sons for  their  submission,  and  why  they  should 
be  adopted,  he  would  call  for  the  consideration  of 
one  of  them.  He  would  call  for  that  of  the  gen- 
tleman from  Seneca,  (Mr.  BASCOM)  in  relation  to 
the  judiciary. 

Mr.  BASCOM  had  not  called  up  this  resolution 
nor  had  he  intended  to  have  done  so  to-day.  It 
was  only  laid  on  thefable  in  order  that  when  the 
Convention  was  not  furnished  with  other  busi- 
ness, it  might  perhaps  be  considered,  if  it  was  de- 
sired to  call  it  up.  He  did  not  move  it  himself, 
although  he  should  not  object  to  its  considers 
tion. 

Mr.  KIRKLAND  thought  it  rather  premature 
to  bring  up  now  a  question  involving  such  mate- 
rial considerations,  and  he  thought  that  we  were 
hardly  prepared  to  discuss  beneficially  so  impor- 
tant a  change  as  these  propositions  would  make. 
He  presumed  the  Convention  would  be  better  pre- 
pared to  do  so  at  a  future  day  than  at  this  moment, 
and  besides  the  matter  was  already  under  consi- 
deration before  the  judiciary  committee,  and  in- 
deed they  may  be  prepared  to  report  on  it.  He 
therefore  hoped  that  the  resolution  of  the  gentle- 
man from  Seneca,  would  not  now  be  considered. 

After  a  pause,  no  motion  being  before  the  Con- 
vention— 

Mr.  PATTERSON,  after  enquiring  whether 
any  gentleman  desired  to  make  any  further  mo- 
tion, moved  that  the  Convention  adjourn. 

The  motion  prevailed. 

TUESDAY,  (14th  day,)  June  16. 
COMMITTEE  ON  JUDICIARY  RETURNS. 
Prayer  by  the  Rev.  Mr.  BRITTON. 
A  SELECT  COMMITTEE. 
The  PRESIDENT  announced  the  new  com- 
mittee to  examine  all  returns  from  county  clerks, 
&c  ,  to  consist  of  Messrs.  J.  J.  TAYLOR,  HAW- 
LEY,  St.  JOHN,  CANDEE,  and  CONELY. 

EXPENSES  OF  THE  JUDICIARY. 
Mr.  RHOADES  said  a  statement  had  been  sent 
up  to  him  by  the  Supreme  Court  clerk  of  Albany, 
at  the  time  he  made  out  the  returns,  the  requi- 
sition of  the  Convention  had  not  reached  him ; 
the  business  in  that  office  was  very  heavy  and 
time  valuable,  and  he  hoped  these  returns  which 
were  made  out  for  the  last  six  months  of  1845, 
would  be  sufficient  to  answer  the  wants  of  the 
Convention. 

It  was  read  and  referred  to  the  new  committee 
of  5  above  named. 

PLAN  FOR  A  JUDICIAY  SYSTEM. 
Mr.   SHEPARD  offered  the  following,  which 
was  referred : 

Resolved,  That  the  judiciary  committee  consider  the 
propriety  of  the  following  propositions: 

if  The  division  of  the  State  into  eight  judicial  circuits. 

2.  The  establishment  of  three  common  law  courts,  of 

general  and  concurrent  jurisdiction,  to  consist  of  not  more 


than  eight  judges  each,  who  shall  be  required  to  hold  their 
terms  according  to  the  demands  of  business,  and  with  re- 
ference to  its  most  speedy  dispatch. 

3.  The  arrangement  of  the  circuits  so  that  no  judge  shall 
hold  court  two  consecutive  terms  for  the  same  circuit. 

4.  The  establishment  of  practice  courts,  to  be  held  by 
the  said  judges,  for  the  adjudication  of  all  questions  of 
practice,  in  the  first  instance,  that  may  arise  in  their  re 
spective  courts. 

6.  The  hearing  of  certioraris  and  appeals  from  the  jus- 
tices' courts  before  one  of  the  judges  of  one  of  the  said 
common  law  courts,  to  be  designated — which  hearing,  and 
the  decision  thereon,  shall  be  final. 

6.  The  hearing  of  certioraris  to  other  officers,  proceed- 
ings in  cases  of  mandamus,  prohibition,  procedendo,  infor- 
mations in  the  nature  of  quo  warranto,  and  other  special 
cases  not  otherwise  provided  for,  in  another  of  said  com' 
mon  law  courts  to  be  designated. 

7.  The  hearing  of  proceedings  in  criminal  cases  on  writ 
of  error  or  other  proceeding  in  the  nature  of  an  appeal  from 
the  judgment  of  a  single  judge,  in  the  third  of  said  com- 
mon law  courts. 

8.  The  granting  of  the  fullest  equity  powers  in  all  mat- 
ters  that  may  be  auxiliary  to  a  suit  at  law,  at  any  stage  of 
its  proceedings,  to  the  judge  having  cognizance  thereof. 

9.  The  abolition  of  the  present  court  of  chancery,  and 
the  distribution  of  its  powers  to  not  more  than  eight  equity 
judges. 

10.  The  abolition  of  the  present  mode  of  taking  testimo- 
ny in  chancery,  and  the  substitution  of  oral  testimony,  to 
be  taken  before  the  equity  judge  who  shall  hear  the  parti- 
cular cause. 

13.  The  establishment  of  courts  of  general  and  special 
sessions  in  the  city  and  county  of  New  York,  which  shall 
try  and  finally  dispose  of  all  criminal  eases  cognizable  in 
said  city  and  county,  subject  to  the  right  of  appeal  to  the 
common  law  court  designated  for  the  purpose,  as  before 
provided. 

14  The  establishment  of  courts  of  special  sessions  to 
consist  of  not  less  than  two  justices  of  the  peace,  who  shall 
have  cognizance  of  the  smaller  grades  of  criminal  of- 
"ences. 

15.  Arguments  in  bane  in  common  law  cases,  shall  be 
heard  and  decided  before  the  court  in  which  the  particu- 
lar cause  was  tried,  excluding  the  judge  who  tried  the 
same  from  giving  his  voice  in  the  decision. 

16.  In  equity  cases  on  appeal,  the  particular  case  shall 
be  first  heard  before  two  equity  judges,  neither  of  whom 

hall  have  sat  at  the  hearing  of  said  case. 

17.  The  establishment  of  a  court  of  errors  to  be  formed 
from  the  common  law  and  equity  courts,  to  hold  not  less 
than  three  terms  in  each  year. 

18.  The  exclusion  from  the  decision  of  any  case  of  the 
particular  court  or  equity  judges  by  whom  said  cause  has 
been  heard  and  decided. 

19.  A  tenure  of  judicial  office  not  exceeding  eight  years 
n  its  duration,  and  a  choice  of  judges  by  classes  of  one 
udge  in  each  court  every  year. 

20.  The  abolition  of  all  fees  or  rewards  for  judicial  ser- 
vices other  than  a  liberal  salary,  which  shall  neither  be  in- 
creased or  decreased  during  the  term  of  office  of  the  in- 
cumbent. 

21.  The  abolition  of  the  county  courts  and  courts  of 
common  pleas. 

Mr.  S.  said  his  original  plan  contained  other 
Doints,  but  they  were  anticipated  by  some  plans- 
hat  had  already  been  offered ;  this  was  incom- 
jlete,  and  did  not  embrace  all  his  views ;  but 
still  as  an  outline  he  would  send  it  to  the  judici- 
ary committee. 

THE  COURT  OF  ERRORS.  8m. 

Mr.  WARD  wished  to  know  when  it  was  the 
ntention  of  the  gentleman  from  Oneida  (Mr. 
£IRKLAND)  to  call  up  the  resolution  which  he 
^resented  and  had  laid  on  the  table  a  day  or  two 
since,  relative  to  the  Court  of  Errors.  For,  if  he 
ntended  to  call  it  up  at  all,  he  had  better  do  so 
jefore  the  judiciary  committee  should  come  in. 
tfith  a  report  on  that  subject.  He  believed  that  a 
arge  majority  present  were  in  favor  of  changing 
)r  abolishing  the  form  of  the  present  Court  or  Er- 
_-ors  ;  not  so  much,  perhaps,  because  they  did  not 
wish  to  see  any  court  of  last  resort,  with  similar 


107 


powers,  as  that  they  desired  to  see  this  court  sepa- 
rated from  the  present  State  Senate. 

Mr  KIRKLAND  said  that  this  very  subject  was 
now  under  serious  consideration  by  the  judiciary 
committee.  They  had  deliberated  already  to  some 
extent  on  the  subject ;  but  not  sufficiently  so  to 
enable  them  as  yet  to  come  to  any  such  a  definite 
conclusion  on  this  point  as  could  be  embodied  in 
a  report.  And  in  connection  with  this  he  certain: 
ly  had  not  intended  to  call  up  the  resolution  spo- 
ken of  by  the  gentleman  from  Westchester,  to-day. 

Mr  STRONG  agreed  entirely  with  the  gentle- 
man from  Westchester  (Mr.  WARD.)  He  wanted 
to  hear  the  views  and  arguments  of  the  gentleman 
from  Oneida  (Mr.  KIRKLAND)  on  this  matter.  It 
was  of  no  use  to  throw  in  here  these  3  or  4  resolu. 
tions  as  he  did  the  other  day,  unless  he  meant  to 
take  them  up  and  debate  them.  He  did  not  think 
then  that  his  old  friend  from  Oneida,  after  throw- 
ing down  hare  a  whole  batch  of  resolutions,  on 
purpose,  as  he  himself  said,  to  provoke  discussion, 
would  attempt,  affer  all,  to  dodge  the  question. 
(Laughter.)  He  wanted  to  hear  them  debated — 
to  hear  the  views  of  the  members  on  the  subject. 

Mr.  KIRKLAND  said  that  when  he  offered 
them  the  other  day,  he  did  so  principally  with  a 
view  to  lay  these  points  before  the  members  for 
their  calm  reflection  and  mature  deliberation ;  he 
certainly  did  not  consider  that  in  so  doing  he 
would  stand  committed  to  call  any  one  or  rrfbre 
of  them  up  on  any  particular  day;  not  that  he  was 
afraid  at  all  of  the  result,  for  he  felt  certain  that 
they  would  meet  with  general  favor  here. 
TO  LIMIT  THE  POWERS  OF  JUDGES. 

Mr.  MURPHY  offered  the  following  which 
was  referred : — 

Resolved,  That  it  be  referred  to  the  committee  on  the 
Judiciary  to  enquire  into  the  expediency  of  restraining 
the  Legislature  by  positive  prohibition  from  assigning 
aay  duties  to  the  Judicial  Department  except  such  as  are 
of  a  judicial  character. 

EXEMPTING  NON-VOTERS  FROM  MILITIA  DUTY. 

Mr.  DANFORTH  offered  the  following  which 
was  referred : 

Resolved,  That  the  Committee  on  the  rights  and  citi- 
zens of  this  state  be  instructed  to  enquire  iuto  the  expedi- 
ency of  exempting  from  military  duty  (excepting  in  cases 
of  insurrection  or  war)  all  those  who  are  not  recognized 
by  the  Constitution  as  legal  voters. 

THE  BANKING  SYSTEM. 

Mr.  POWERS  said  that  a  few  days  since  the 
gentleman  from  Cayuga  (Mr.  SHAW,)  had  offer- 
ed a  resolution  to  the  effect  of  making  all  di- 
rectors of  banks  and  stockholders  liable  to  be 
held  responsible  for  the  liabilities  of  said 
banks.  This  was  an  entirely  new  element  in 
the  history  of  banking  institutions  in  this  State  : 
it  well  deserved  the  close  and  continued  at- 
tention of  the  committee — and  it  was  a  resolu- 
tion which  would  meet  with  his  cordial  and 
hearty  support;  provided  that  there  should  be 
be  annexed,  a  security,  that  shall  remain  under 
all  circumstances,  a  security  for  the  redemption 
of  the  notes  of  the  bank.  He  thought  it  was  high 
time  to  revise  the  whole  system  of  banking 
throughout  the  State,  with  a  view  to  put  a  stop  to 
its  various  abuses,  and  place  the  whole  on  a  sounc 
and  wholesome  footing.  He  would  offer  the  fol 
lowing : — 

Resolved,  That  the  Comptroller  report  to  this  Conven 
tion  a  list  of  the  incorporated  Banks  of  the  state— the  time 


f  their  incorporation  or  renewal— when  their  charters 
xpire,  and  the  amount  of  capital  of  each.  Also— a  list  of 
uch  of  the  said  Banks  subsequent  to  the  safety  fund  law 
s  have  become  insolvent,  and  the  amount  contracted  and 
mid  out  of  that  fund  to  the  creditors  of  such  insolvent 
Janks.  Also— a  list  of  the  Banks  established  under  the 
act  "to  authorize  the  business  of  banking" — where  the 
ame  purports  to  be  located  and  its  business  carried  on— 
he  actual  capital  as  returned  to  his  office  by  the  applica- 
ion  to  him  for  circulating  notes— the  amount  of  such  notes 
elivered  by  him  to  each  banking  association  or  individu- 
jl  banker  and  the  nature  and  amount  of  the  securities 
ransferred  to  him  for  the  redemption  of  said  notes.  Also 
-a  list  of  such  of  the  last  mentioned  banks  which  have 
ailed  to  redeem  its  notes  by  reason  of  insolvency  or  oth- 
erwise—the  amount  of  the  circulating  notes  of  such  banks 
jnredeemed  or  not  returned  to  hinvand  the  loss  (it  any)  and 
he  amount  thereof  upon  the  securities  transferred  to  him 
or  the  payment  of  said  circulating  notes. 

Mr.  P.  said  that  this  information,  which  the 
Comptroller  would  furnish,  would  be  very  valua- 
)le  in  examining  into  the  affairs  and  systems  of 
all  the  banks,  and  be  a  good  guide  to  the  conven- 
'ion  in  their  action  on  the  subject. 
It  was  adopted. 

Mr.  CHATFIELD  said,  that  as  there  did  not 
ippear  to  be  any  more  business  for  the  immediate 
consideration  of  the  Convention,  and  as  the  time 
of  members  could  be  much  more  profitably  spent 
.n  their  committee  rooms,  he  moved  that  the 
Convention  do  now  adjourn. 

Carried,  and  the  Convention  adjourned  till  to- 
morrow at  11  A.  M. 


WEDNESDAY,  (15th  day)  June  17. 

Prayer  by  the  Rev.  Mr.  BRITTOJV. 

As  soon  as  the  minutes  were  approved, 

Mr.  CHATFIELD  rose  and  moved  that  the 
Convention  do  now  adjourn.  He  added,  that  he 
made  this  motion  in  consequence  of  the  desire  of 
the  members  of  the  various  committees  to  dispatch 
the  business  before  them  in  their  committee  rooms 
as  fast  as  possible ;  hut  that  if  any  gentleman  had 
any  resolutions  to  offer,  he  would  withdraw  the 
motion  for  the  present. 

Mr.  MORRIS:  I  have  a  report  to  present  first 
Mr.  President. 

Mr.  CHATFIELD:  I  withdraw  it. 

Mr.  MORRIS  had  a  report  to  offer  from  com- 
mittee No.  5  relative  to  the  power  and  duties  o.< 
the  Governor  and  Lieut.  Governor,  except  as  re. 
lates  to  their  power  of  appointing  to  office.  Hf 
read  it  in  his  place,  as  follows: — 

POWERS,  &c.,   OF  THE   GOVERNOR  AND  LIEUT 

GOVERNOR. 

Committee  No.  Five,  on  "  The  election,  tepure  of  office 
compensation,  powers  and  duties  (except  the  power  to  an' 
point  or  nominate  to  office)  of  the  Governor  and  Lieuten- 
ant Governor,"  unanimously  report  the  accomoanvin^ 
proposed  Article: 

ARTICLE . 

On  the  election,  tenure  of  office,  compensation,  powers  and 
duties  (except  the  power  to  appoint  or  nominate  to  office)  of 
the  Governor  and  Lieutenant  Govtmor. 

§  1.  The  executive  power  shall  be  vested  in  a  governor 
He  shall  hold  his  office  for  two  years;  and  a  h'eutenant  so- 
vernor  shall  be  chosen  at  the  same  time  and  for  the  same 
term. 

§  2.  No  person  except  a  native  citizen  of  the  United 
States  shall  be  eligible  to  the  office  of  governor,  nor  shall 
any  person  be  eligible  to  that  office  who  shall  not  have  at- 
tained the  age  of  thirty  years,  and  have  been  five  years  a 
resident  within  this  state,  unless  he  shall  have  been  absent 
during  that  time  on  public  business  of  the  United  State-? 
or  of  this  state.  es' 


108 


§3.  The  governor  and  lieutenant-governor,  shall  be 
elected  at  the  times  and  places  of  choosing  members  of  the 
legislature.  The  persons  respectively  having  the  highest 
number  of  votes  for  governor  and  lieutenant-governor, 
shall  be  elected;  but  in  case  two  or  more  shall  have  an 
equal  and  the  highest  number  of  votes  for  governor,  or  for 
lieatenant-governor,the  two  houses  of  the  legislature  shall, 
by  joint  ballot,  choose  one  ol  the  said  persons  so  having 
an  equal  and  the  highest  number  of  votes  for  governor  or 
lieutenant-governor. 

fc  4.  The  governor  shall  be  general  and  commander-in- 
chlef  of  all  the  militia,  and  admiral  of  the  navy  of  the  state. 
He  shall  have  power  to  convene  the  legislature,  (or  the 
Senate,)  on  extraordinary  occasions.  He  shall  communi- 
cate by  message,  to  the  legislature  at  every  session,  the 
condition  of  the  state,  and  recommend  such  matters  to 
them  as  he  shall  judge  expedient.  He  shall  transact  all 
necessary  business  with  the  officers,  civil  and  military. — 
He  shall  expedite  all  such  measures  as  may  be  resolved  up- 
on by  the  legislature,and  shall  take  care  that  the  laws  are 
faithfully  executed.  He  shall  receive  for  his  services  the 
following  compensation,  viz:— Four  thousand  dollars  an- 
nually, to  be  paid  in  equal  quarterly  payments;  six  hun- 
dred dollars  annually,  to  be  paid  in  equal  quarterly  pay- 
ments, for  the  compensation  of  his  private  secretary;  the 
rent,  taxes  and  assessments  of  his  dwelling  house,  shall  be 
paid  by  the  state. 

&  5.  The  Governor  shall  have  power  to  grant  reprieves 
and  pardons  after  conviction  for  all  oflences  except  trea- 
son and  cases  of  impeachment.  He  may  commute  sen- 
tence of  death  to  imprisonment  in  a  State  prison  for  life. — 
He  may  grant  pardons  on  such  conditions  and  with  such 
restrictions  and  limitations  as  he  may  think  proper.  Up- 
on convictions  for  treason,  he  shall  have  power  to  sus- 
pend sentence  until  the  case  shall  be  reported  to  the  legis- 
lature at  its  next  meeting.  He  shall  in  his  annual  mes- 
sage communicate  to  the  legislature  each  such  case  of  re- 
prieve, commutation  or  pardon  granted  by  him  since  his 
next  previous  annual  message,  stating  the  name  of  the 
convict,  the  crime  of  which  he  was  convicted,  the  sen- 
tence and  its  date,  and  the  date  of  the  commutation,  par- 
don or  reprieve. 

&  6.  In  case  of  the  impeachment  of  the  Governor,  or  his 
removal  from  office,  death,  inability  from  mental  or  physi- 
cal disease,  resignation  or  absence  from  the  State,  the  po- 
wers and  duties  of  the  office  shall  devolve  upon  the  Lieu- 
tenant Governor  for  the  residue  of  the  term,  or  until  the 
Governor  absent  or  impeached,  shall  return,  or  the  disabi- 
lity shall  cease.  But  when  the  Governor  shall,  with  the 
consent  of  the  legislature,  be  out  of  the  state  in  time  of 
war  at  the  head  of  a  military  force  thereof,  he  shall  still 
continue  commander-in-chief  of  all  the  military  force  of 

$5  7.  The  Lieutenant  Governor  shall  be  President  of  the 
Senate,  but  shall  have  only  a  casting  vote  therein.  If  dur- 
ing a  vacancy  of  the  office  of  Governor,  the  Lieutenant  Go- 
vernor shfcll  be  impeached,  displaced,  resign,  die.  or  from 
mental  or  physical  disease  become  incapable  of  perform- 
ing his  duties,  or  be  absent  from  the  State,  the  President  of 
the  Senate  shall  act  as  Governor  until  the  vacancy  shall  be 
filled,  or  the  disability  shall  cease. 

5j  8.  The  Lieutenant  Governor  shall  receive  six  dollars 
for  every  day's  attendance  as  president  of  the  Senate;  and 
he  shall  also  receive  the  like  compensation  for  every 
twenty  miles  travel  in  going  to  and  returning  from  the 
place  of  meeting  of  the  Senate  in  the  discharge  of  his  du- 

&  9.  The  Governor  and  Lieutenant  Governor,  or  either 
of  them,  shall  not  ex-officio  or  otherwise,  hold  any  other 
office  of  trust,  honor,  profit  or  emolument,  under  the  State 
or  the  United  States,  or  any  other  State  of  the  Union, 
or  any  foreign  State  or  government;  the  acceptance 
by  the  person  holding  the  office  of  Governor  or  Lieu- 
tenant Governor,  of  any  other  office  ol  trust,  honor, 
profit  or  emolument  under  the  State,  or  under  the  United 
States,  or  under  any  other  State  of  the  Union,  or  under 
any  foreign  State  or  government,  shall  vacate  his  said  offi- 
ce of  governor  or  lieutenant  governor. 

{5  10  The  governor  may  in  his  discretion  deliver  over  to 
ustice  any  person  found  in  the  state,  who  shall  be 
charged  with  having  committed,  without  the  jurisdiction 
ofthe  United  States,  any  crime  except  treason,  which  by 
thelaws  of  this  state,  if  committed  therein  is  punishable  by 
death  or  by  imprisonment  in  the  state  prison.  Such  de- 
livery can  only  be  made  on  the  requisition  of  the  duly  au- 
thorised minister  or  officers  of  the  government  within  the 
jurisdiction  of  which  the  crime  shall  be  charged  to  have 
been  committed;  and  upon  such  evidence  of  the  guilt  of 
the  person  so  charged  as  would  be  necessary  to  justity  his 


apprehension  and  commitment  for  trial,  had  the  crime 
charged  been  committed  in  this  state. 

§  11.  Every  pro  vision  in  the  Constitution  and  laws  in  re- 
lation to  the  powers  and  duties  of  the  governor,  and  in  re. 
lation  to  acts  and  duties  to  be  performed  by  other  officers  or 
persons  towards  him  shall  be  construed  to  extend  to  the 
person  administering  for  the  time  being  the  government 
of  the  state. 

§  12.  The  governor  may,  upon  the  application  of  the 
sheriff  of  any  county  in  the  state,  order  such  a  military 
force  from  any  other  county  or  counties  of  the  state,  as 
may  be  necessary  to  enable  such  sheriff  to  execute  pro- 
cess delivered  to  him. 

§  13.  The  governor  may  remove  from  office  any  sheriff 
at  any  time  within  the  period  for  which  such  sheriff  was 
elected.  He  shall  first  give  to  such  sheriff' a  copy  ofthe 
charges  against  him,  and  an  opportunity  of  being  heard  in 
his  defence,  before  any  removal  shall  be  made, 

§14.  Every  bill  which  shall  have  passed  the  Senate  and 
Assembly,  shall,  before  it  becomes  a  law,  be  presented  to 
the  governor  ;  if  lie  approve,  he  shall  sign  it;  but  if  not, 
he  shall  return  it  with  his  objections  to  that  house  in  which 
it  shall  have  orginated,  who  shall  enter  the  objections  at 
large  on  their  journal,  and  proceed  to  reconsider  it.  If, 
after  such  reconsideration,  two-thirds  ofthe  members  pre- 
sent shall  agree  to  pass  the  bill,  it  shall  be  sent  together 
with  the  objections,  to  the  other  house,  by  which  it  shall 
likewise  be  reconsidered,  and  if  approved  by  two-thirds  of 
the  members  present  it  shall  become  a  law.  But  in  all 
cases,  the  votes  of  both  houses  shall  be  determined  by 
yeas  and  nays,  and  the  names  voting  for  and  against  the 
bill  shall  be  entered  on  the  journal  of  each  house  respect- 
ively. If  any  bill  shall  not  be  returned  by  the  governor 
within  ten  days  (Sundays  excepted)  after  it  shall  have 
been  presented  to  him,  the  same  shall  be  a  law,  in  like 
manner  as  if  he  had  signed  it,  unless  the  legislature  shall, 
by  their  adjournment,  prevent  its  return  ;  in  which  case  it 
shall  not  be  a  law.  If  at  the  next  ensuing  session  -ol  the 
legislature,  the  same  bill  shall  be  again  passed  by  the  vote 
ofthe  majority  of  all  the  members  elected  in  each  branch 
of  the  legislature,  such  bill  shall  become  a  law  notwith- 
standing  the  objections  of  the  governor  ;  but  in  such  case 
also,  the  votes  of  both  houses  shall  be  determined  by  yeas 
and  nays,  and  the  names  of  the  members  voting  for  and 
against  the  bill  shall  be  entered  on  the  journals  of  each 
house  respectively. 

Respectfully  submitted: 

ROBT.H.  MORRIS, 
JOHN  K.  PORTER, 
WILLIAM  PENNIMAN, 
SERENO  CLARK, 
JOHN  HYDE, 
CYRUS  H.  KINGSLEY, 
DAVID  S.  WATERBURY. 

Mr.  MORRIS  moved  that  it  be  laid  on  the  table 
and  printed. 

Mr.  BROWN  said  that  as  this  is  the  first  report 
which  has  been  presented  to  the  Convention  from 
any  Committee,  we  ought  to  consider  well  as  to 
the  best  disposition  that  can  be  given  to  them  as 
fast  as  they  come  in.  This  had  better  be  referred 
to  the  committee  of  the  whole,  and  be  printed. 

Mr.  MORRIS  accepted  that  modification,  as  it 
was  what  he  intended. 

Mr.  W.  TAYLOR  said  he  wished  to  have  an 
additional  number  of  copies  printed.  He  thought 
double  the  usual  number- 

The  PRESIDENT  said  lhat  the  rule  required 
the  gentleman  to  state  the  exact  number  he  desires 
to  have  printed. 

Mr.  TAYLOR  would  say  500,  then. 

Mr.  MORRIS  accepted  this  modification. 

The  report  was  then  referred  to  the  committee 
of  the  whole,  and  500  copies  ordered  to  be  print- 
ed. 

RESOLUTIONS  INCORRECTLY  REFERRED. 

Mr.  CAMBRELENG  said  that  his  committee 
had  desired  him  to  ask  a  change  of  reference  of 
that  part  of  a  resolution  offered  the  other  day  by 
the  gentleman  from  Cayuga  (Mr.  SHAW)  relative 
to  the  liability  of  stockholders  in  Banks;  the  lat- 


109 


ter  part  of  the  resolution  clearly  belonged  to  an- 
other committee— to  the  comm'ttee  on  Corpora- 
tions other  than  Banking  or  Municipal.  He 
therefore  moved  the  following  : — 

Resolved,  That  the  committee  on  the  currency  anc 
banking  be  discharged  from  the  further  consideration  ol 
BO  much  of  a  resolution  adopted  by  the  Convention,  re- 
ferring to  that  committee  the  question  of  the  individua 
liabili  y  ol  stockholders  in  moneyed  corporations  other 
than  banks,  and  that  the  same  be  referred  to  the  committee 
on  corporations  other  than  banking  or  municipal, 

Adopted. 

Mr.  ANGEL  said  that  his  committee,  No.  7,  on 
the  powers  ot  local  officers,  asked  to  be  discharged 
Irom  the  further  consideration  of  the  resolution 
that  had  bot!ti  referred  to  it  the  other  day  by  the 
gentleman  from  Herkimer,  (Mr.  LOOMIS)  relative 
to  the  equalization  of  direct  taxation,  and  propor- 
tioning it  lo  the  actual  value  of  estates,  &c. 

Mr.  LOOMIS  said,  that  at  the  time  he  had  of- 
fered the  resolution  he  had  some  difficulty  in  his 
own  mind  as  to  its  reference.  Still  he  considered 
that  committee  No.  7,  on  the  powers  and  dunes  of 
local  officers,  was  the  right  committee  to  refer  this 
to.  The  committee  on  the  powers  and  duties  of 
the  Legislature  had  been  mentioned  ;  but  although 
the  powi  r  of  taxation  did  belong  to  the  Legisla. 
ture,  yet  the  exercise  ot  that  power  clearly  be 
longed  to  others — to  local  officers.  But  still  if  the 
committee  No.  7  asked  to  be  discharged  from  its 
consideration,  he  would  amend  by  asking  its  refer- 
ence to  committee  No.  2. 

Mr.  ANGEL  then  read  his  resolution:— 

Resolved,  That  committee  No.  7  on  the  appointment  or 
election  of  all  officers  whose  functions  are  local,  &c.,  be 
discharged  from  the  further  consideration  of  the  resolu- 
tion adopted  by  the  Convention  on  the  llth  inst.,  (Mr. 
LOOMIS',)  referring  it  to  said  committee  "  to  inquire  into 
the  expediency  of  making  constitutional  provision  to 
the  actual  value  of  the  estate  of  the  individual  taxed,  re- 
gardless of  the  distinction  between  real  and  personal  es- 
tate," and  that  the  same  be  referred  to  the  committee  on 
the  powers  and  uuvies  of  the  legislature,  except,  &c. 

This  was  accepted,  and  the  subject  referred  to 
committee  No.  2,  on  the  legislature. 

SALE  OF  NON-RESIDENT  LANDS. 

Mr.  HYDE  offered  the  following  : 

Resolved,  That  the.  committee  on  the  rights  and  privi- 
leges  ol  citizens,  except,  &c  ,  be  instructed  to  inquire  in 
to  the  expediency  of  providing  in  the  constitution  that 
non-resident  lands  which  are  sold  for  taxes  be  sold  in  the 
counties  in  which  they  belong. 

Mr.  TALLMADGE  objected  to  the  reference  ; 
the  committee  of  which  he  was  chairman  could 
net  make  a  law  on  the  subject  of  taxation,  &c. — 
He  would  move  to  have  it  referred  to  the  Com- 
mittee on  the  Legislation. 

Mr.  HYDE  said  there  had  been  a  law  passed 
last  winter  in  relation  to  this  very  subject. 

Mr.  TALLMADGE:  Then  what  is  the  use  of 
referring  it  to  a  committee? 

Mr.  KIRKLAND:  Because  they  want  to  have 
it  incorporated  in  the  Constitution. 

Mr.  TALLMADGE:  Very  well;  but  I  give 
the  gentleman  warning  beforehand  that  the  good 
sense  of  my  committee  will  induce  them  to  return 
it  promptly,  and  ask  10  be  discharged  from  itg  con- 
sideration, as  not  falling  wiihin  the  purview  ol 
their  duties. 

TLe  resolution,  however,  was  adopted  and  re- 
ferred, 


STATES  NOT  TO  EMIT  BILLS  OF  CREDIT. 
Mr.  KENNEDY  offered   the  following,  which 
was  adopted  : 

Resolved,  That  it  be  referred  to  the  committee  on  the 
currency  and  banking  to  inquire  whether  the  10th  section 
of  the  1st  article  ofthe  constitution  of  the  U.  S.,  by  provid- 
ing that  no  state  shall  emit  bills  of  credit,  does  not  there- 
by prohibit  a  state  from  creating  corporations  empowertd 
to  do  that,  which  said  state  cannot  do  under  said  provision. 

Mr.  RHOADES  said  that  he  wished  to  ofler  a 
resolution,  containing  a  great  principle,  which 
had  been  adopted  by  many  other  of  the  Northern 
States  of  the  Union,  but  which  had  not  yet  been 
adopted  by  this  State.  It  was  as  follows: 
ARRESTING  RUNAWAY  NEGROES. 
Resolved,  That  it  be  referred  to  the  committees  on  the 
powers  and  duties  ofthe  legislature  to  enquire  into  the  ex- 
pediency of  so  amending  the  constitution  as  to  require  the 
passage  of  laws  prohibiting  any  officer  connected  with  the 
administration  of  justice  in  this  state  from  aiding  in  the  ar- 
rest or  detention  of  any  person  claimed  as  a  fugitive  from 
slavery  or  involuntary  service. 

It  was  adopted. 

MAYOR  OF  NEW  YORK'S  TERM  OF  OFFICE. 
Mr.  CORNELL  offered,  the  following,  which 
was  adopted  : 

Resolved,  That  it  be  referred  to  the  committee  on  the  or- 
ganization and  powers  of  cities,  &c.,  to  inquire  into  the 
expediency  of  permitting  the  city  of  New  York  to  length- 
en the  official  term  of  the  Mayor  thereof  to  two  years. 
CIVIL  DISABILITY  OF  DUELLISTS. 

By  Mr.  KENNEDY:— 

Resolved,  That  it  be  referred  to  the  llth  standing  com- 
mittee to  inquire  into  the  expediency  of  incorporating  a 
clause  into  the  constitution  providing  for  the  civil  disabil- 
ity of  all  persons  who  shall  hereafter  be  engaged,  directly 
or  indjrectly,  in  a  duel,  as  principal  or  accessory  before 
the  fact. 

It  was  adopted. 

CODIFICATION  OFTHE  LAWS.— REFORMS  IN  LE- 
GAL MATTERS,  &c. 

Mr.  CAMPBELL  P.  WHITE  then  rose  and  in 
his  place  read  the  following : — 

Resolved,  That  it  be  referred  to  the  committee  on  the 
judiciary  to  inquire  into  the  expediency  of  providing  in 
the  constitution  for  a  systematic  and  thorough  reform  of 
courts  of  law  and  equity— for  a  simplification  and  reduc- 
tion of  the  antiquated,  artificial  and  ponderous  forms  of  le- 
gal and  equitable  proceedings — and  ultimately  for  the  en- 
actment and  codification  of  the  vast  mass  of  unwritten  law 
and  equity— in  order  that  the  people  may  know  the  legal 
and  equitable  rules  by  which  they  must  be  governed — that 
litigation  may  be  diminished,  and  justice  more  promptly 
administered:  And  also  for  the  extension  of  the  right  of 
trial  by  jury  to  all  practicable  cases. 

Mr.  NICOLL  said  this  was  a  most  important 
proposition,  and  required  serious  attention;  it 
was  undoubtedly  the  fact  that  some  portions  of  it, 
might  very  properly  be  referred  to  the  committee 
on  the  judiciary,  yet  it  was  equally  certain  that 
other  portions  of  it  ought  to  be  referred  to  a  select 
committee.  For  as  it  occured  to  him  on  the  rea- 
ding of  it,  one  part  decidedly  looked  to  a  codifica- 
:ion  of  the  laws ;  a  plan  he  was  in  favor  of. — 
This  was,  perhaps,  the  most  important  proposi- 
:ion  that  had  yet  been  submitted  to  the  Conven- 
;ion;  and  he  trusted  that  the  gentleman  (Mr. 
WHITE)  would  modify  it  in  such  a  way  as  to  have 
t  considered  by  a  select  committee — say  a  com- 
mittee of  7, — for  besides,  that  portions  of  it  do 
not  properly  require  the  reference  to  the  judicia- 
iry  committee,  that  committee  has  already  before 
t  a  greater  amount  of  business  than  it  can  prop- 
erly or  conveniently  dispose  of,  in  the  short  pe- 


110 


riod  that  would  be  allotted  to  it  for  that  purpose. 
Mr.  WHITE  said  that  he  had  desired  a  refer- 
ence of  it  to  the  Judiciary  Committee,  believing 
that  that  committee  was  best  calculated  to  give  it 
proper  attention;  he  felt  a  deep  interest  in  this 
matter:  but  if  the  Judiciary  Committee  was  so 
overburthened  with  other  business  already,  he 
would  not  hesitate  to  modify  his  motion  in  com- 
pliance with  the  request  of  his  colleague  (Mr. 
NICOLL  ) 

Mr.  RUGGLES  said  that  the  Judiciary  Commit- 
tee had  now  some  very  important  business  before 
them  that  would  occupy  all  the  time  they  could 
devote  to  it  for  a  considerable  number  of  days. — 
He  desired,  therefore,  with  the  gentleman  from 
New  York  (Mr.  NICOLL)  to  have  the  resolution 
referred  to  a  select  committee;  atid  he  thought 
that  beyond  a  doubt  a  majority  of  the  Judiciary 
Committee  desired  that  it  should  take  that  course. 
Mr.  WHITE  said  that  he  would  not  object  to 
referring  it  to  a  select  committee. 

Mr.  STOW  said  that  he   wished  to  say  one  or 
two   words  before  the   resolution  was  referred. — 
The  other  day  he   had  offered  a  resolution  calling 
on  the  judiciary  committee  to  enquire  into  the  ex 
pediency  of  providing  for  a  board  of  law  commis- 
sioners to  revise  the  present  form  of  practice  in 
our  courts  of  law  ;  or  to  provide  either  by  such  a 
commission,  or  in  some  oiher   way,  for  a  decided 
and   wholesome  alteration  to  effect  the  same  ob- 
ject ;   a  change  in  the  mode  of   law  proceedings 
pleadings,  &c.,  in  the  courts.     This  resolution  o 
the  gentleman  from  New  York  (Mr.  WHITE)  evi 
dently  looked   to  the  same  end — it  had  the  same 
object  in  view,   and  clearly  should  be  referred  t 
the  committee  that  had  charge  of  the  organization 
of  the   courts,   &c. — the  judiciary  committee. — 
There  was   no  necessity  for  a. separate  committee 
to  consider  this  proposition  ;  it  would  be  very  in 
consistent  to  raise   one  for  that  purpose,  after  re 
ferring  his  resolution  to  the  judiciary  committee 
No  board   of  commissioners  would   agree   to  an> 
thing  unless  they  were  to  be  confined  to  a  specifi 
object ;  and   he  did  not  wish  the  subject  divided 
but  that  the  resolution  might  be  sent  to  the  judi 
ciary  committee,  to  which  it  properly  and  natural 
ly  belonged. 

Mr,  STEPHENS  observed,  that,  with  all  du 
respect  to  the  Hon.  the  Chairman  of  the  Judiciar 
Committee,  (Mr.  RUGGLES)  he  would  say,  tha 
whilst  he  by  no  means  desired  for  an  instant  to  im 
pose  upon  that  important  committee  greater  bur 
thens  than  they  could  conveniently  bear,  the  sub 
ject,  in  his  judgment,  was  already  before  the  judi 
ciary  committee.  And  he  considered  it  clearl 
the  legitimate  business  of  that  committee.  ] 
.comes  so  regularly  through  the  regular  order  o 
the  business  of  that  committee.  Suggestions  o 
this  point  having  already  been  made  in  their  deli 
berative  meetings,  and  a  particular  course  of  ac 
tion  in  relation  to  it  already  partially  indicate 
there;  if  a  select  commiitee  was  raised  thei 
recommendations  might  come  in  collision  wit 
the  proceedings  of  the  judiciary  committee.  An 
though  it  might  therefore  add  to  the  burthens  < 
the  judiciary  committee,  he  thought  it  was  cleai 
ly  a  subject  for  their  disposal,  and  he  hoped  to  se 
it  so  referred. 

Mr.  WARD  said  that  he  had  examined  the  r 
solution,  and  he  fully  concurred  with  the  gentle 


an  from  New- York,  wh%  had  last  spoken  (Mr. 
TEPHENS.)  It  was  clearly  a  subject  for  the  con- 
dera'tion  of  the  judiciary  committee.  There 
as  much  good  sense  in  the  suggestions  contain- 
d  in  this  resolution ;  and  he  fully  believed  that 
'this  Convention  should  omit  to  provide  a  rem- 
dy  for  the  evils  alluded  to  in  that  resolution, 
lat  the  people  themselves  would  apply  the  refor- 
lation  hereafter,  through  the  legislature  which 
icy  will  elect  after  the  new  Constitution  shall 
ave  been  voted  upon.  It  was  a  subject  worthy 
F  the  highest  and  most  serious  consideration  of 
lis  Convention;  but  he  thought  it  not  advisable 
o  raise  a  select  committee  for  that  purpose  ;  foi- 
led report  might  possibly  conflict  with  the  re- 
ort  of  the  judiciary  committee,  in  relation  to  ma- 
y  of  the  subject  matters  contained  in  the  resolu- 
ion.  He  trusted,  therefore,  it  would  be  referred 
o  the  judiciary  committee — though,  undoubtedly, 
much  of  the  resolution  belonged  to  legislative  ac- 
ion,  and  not  to  the  framing  of  the  Constitution. 

Mr.  NICOLL  repeated,  that  undoubtedly  a  por- 
ion  of  it  did  belong  to  the  Judiciary  Committee — 
mt  another  part  did  not;  and  as  to  any  fears  of  a 
ollision  or  difficulty  between  the  reports  of  that 
nd  a  select  committee  of  5  or  7,  there  was  noth- 
ng  to  be  apprehended  ;  for  the  two  could  easily 
lold  a  conference,  and  adjust  any  differences  of 
•pinion  they  might  entertain.  He  was  strongly 
n  favor  of  a  select  committee;  but  some  of  the  sub- 
ects  in  the  resolution  extended  beyond  the  aims 
and  objects,  and  duties  of  the  judiciary  committee. 
The  latter  committee  regard  or  contemplate  the 
administration  of  the  laws;  whilst  the  object  of 
he  resolution,  is,  with  regard  to  the  laws  them- 
selves. And  this  is  a  distinct  subject,  and  re- 
quires the  attention  of  a  distinct  committee;  it 
ooks  to  far  higher  ends  than  what  weie  original- 
y  pointed  out  for  the  judiciary  committee,  and  he 
did  trust  that  this  Convention  would,  on  account 
of  its  great  importance,  direct  euch  a  reference. 

Mr.  JORDAN  said  that  the  resolution  embrac 
ed  various  objects,  all  of  which  were  unqestiona 
aly  of  importance.  It  appeared  that  a  portion  of 
the  subject  matter  of  the  resolution  was  already 
before  the  judiciary  committee,  and  he  was  of 
opinion  that  such  portion  had  been  properly  re- 
ferred. That  was  the  correct  committee  to  inves- 
tigate that  branch  of  the  subject ;  and  will  be  fully 
considered  by  that  cummittee.  But  there  was 
another  which  was  not  only  of  equal  importance, 
but  which  went  far  beyond  the  first  part  in  its 
aims  and  object?,  and  did  not  properly  belong  to 
the  consideration  of  the  judiciary  committee;  and 
he  agreed  with  the  gentleman  from  New  York 
(Mr  NICOLL)  that  it  ought  to  be  referred  to  a  se- 
lect committee  'He  had  reference  here  to  that 
portion  of  it,  which  contemplated  an  examination 
of  the  subject  of  a  codification  of  the  laws.  This 
was  a  vast  subject  ;  one  of  very  great  importance 
and  magnitude.  It  was  a  tremendous  task  to  un 
dertake  ;  and  the  duty  thereof,  if  properly  perform- 
ed would  occupy  very  much  of  the  best  talent  of 
the  State.  It  it  was  now  in  order,  he  would  move 
so  to  modify  the  resolution  as  to  refer  the  one  part 
to  the  judiciary  committee  which  had  that  matter 
already  under  consideration  ;  and  the  other  part  of 
it,  which  had  reference  lo  the  codification  of  the 
laws  he  would  desire  to  have  referred  to  a  select 
committee. 


Ill 


The  PRESIDENT  said  that  such  a  motion  would 
be  perfectly  in  order. 

Mr.  WHITE  said  he  would  not  object. 

Mr.  JORDAN  then  said  that  he  would  make 
that  motion. 

Mr.  RHOADES  said  that  he  wished  gentlemen 
to  pause  a  little;  and  particularly  to  avoid  com- 
mitting kindred  subjects  to  different  committees; 
for  if  they  did,  the  collision  would  very  much  t m- 
barrass  both  the  committees  and  the  House.  He 
had  not  very  distinctly  heard  this  resolution  read; 
but  as  there  appeared  to  be  a  considerable  diver- 
sify of  opinion  as  to  the  proper  disposition  that 
should  be  made  of  it;  and  as  he  wished  every 
member  fully  to  understand  the  subject  so  as  to 
vote  correctly  on  it— he  would,  in  order  to  give 
them  all  time  for  reflection,  move  that  the  resolu- 
tion be  laid  on  the  table,  and  that  it  be  printed. 

Mr.  WHITE  accepted  this  proposition. 

The  resolution  was  then  laid  on  the  table  and 
ordered  to  be  printed. 

ORIGIN  OF  STATE  GOVERNMENT. 

Mr.  CORNELL  offered  the  following,  which 
was  adopted : 

Resolved,  That  it  be  referred  to  the  committee  on  the 
rights  and  privileges  of  citizens,  &c.,  to  inquire  into  the 
expediency  of  embodying  In  the  constitution,  a  clear  and 
succinct  statement  or  declaration  of  principles  as  to  the 
origin  and  grounds  of  government  in  this  state. 

SUBDIVISION  OF  TOWNS  INTO  TITHINGS-ELEC- 
TION  OF  JUDGES  BY  THE  PEOPLE,  JURORS,  &c. 

Mr.  HUNT  oflered  the  following,  which  he  said 
he  would  read  in  his  place: 

Resolved,  That  the  judiciary  committee  be  directed  to 
inquire  into  the  expediency  of  a  subdivision  of  the  several 
wards  and  townships  of  the  state  into  tithings  or  jury  dis- 
tricts, each  to  contain  about  ten  citizens  competent  to  the 
performance  of  jury  duty.who  shall  annually,  or  as  often  as 
a  vacancy  may  occur,  elect  one  of  their  number  to  the 
office  of  juryman: — The  expediency  of  prohibiting  any 
person  not  thus  electedfrom  filling  the  office  of  juror — and 
the  expediency  o»  conferring  on  the  jurymen  thus  chosen 
the  exclusive  powrr  of  electing  justices  of  the  peace,  and 
all  state,  circuit  and  local  judges. 

Mr.  HUNT  :  I  desire  to  accompany  my  motion 
with  a  few  remarks;  if  it  were  only  to  ask  pardon 
of  the  judiciary  committee  lor  adding  another  to 
the  many  schemes  and  suggestions  before  them. 
They  will  perceive,  however,  that  what  I  propose 
is  no  new  scheme,  but  one  that  was  tried  by  our 
Saxon  ancestors,  for  ages,  and  found  to  work  well, 
— too  well,  indeed,  to  suit  the  Noranan  aristocracy, 
who  adroitly  managed  to  magnify  the  powers  of 
judges  ot  their  appointment,  and  to  prevent  the 
people  from  appointing  their  best  and  wisest  men 
to  represent  them  in  the  jury  box,  as  they  had 
been  accustomed  to  do  from  the  time  of  Alfred. — 
That  aristocracy  so  amended  the  jury  system  as  to 
make  it,  in  most  cases  of  importance,  where 
their  special  interests  were  at  stake,  little  els( 
than  an  automaton,  a  scape  goat,  "a  screen  be- 
hind  which  the  judges  could  skulk  from  re- 
sponsibility." They  preserved  the  forms  of  jury 
trial,  so  far  as  those  forms  could  be  used  to  lend  a 
sanction  to  their  oppressions;  but  they  perverted 
the  spirit  of  tha*  admirable  democratic  institution 
by  a  judicious  ultraism — a  violent  regard  for  equal 
rights — which  led  them  to  throw  open  the  jury- 
box  fj  everybody;  and  which,  of  course,  enabled 
them  to  pack  it,  when  necessary,  with  their  own 
instruments  and  retaineis.  I  would  by  no  means 
assert  that  the  general  character  of  juries,  under 


our  pi esent  system  of  selecting  them,  is  bad.  I 
suppose  the  contrary  to  be  the  fact.  Yet  very  many 
of  our  courts  are  haunted,  day  after  day,  by  disso- 
lute loungers,  wailing  a  chance  to  obtain  a  shilling 
by  getting  on  a  jurv,  whose  integrity  and  judgment 
no  man  can  confide  in,  and  who  are  utterly  unfit 
to  decide  either  the  law  or  the  facts  of  any  case — 
men  whose  governing  motive,  in  making  up  their 
verdict,  often  may  be  nothing  higher  than  a  hope, 
by  humoring  tne  judge,  to  "  to  place  themselves  in 
the  line  of  succession"  for  another  case  and  ano- 
ther shilling.  Now,  the  admission  of  such  men 
to  the  jury-box,  tends  to  degrade  the  democratic 
element  of  our  judiciary,  precisely  as  the  exten- 
sion of  the  elective  franchise  to  an  inferior,  barba, 
rian,  or  servile  race,  would  degrade  those  who 
might  exercise  it  in  common  with  them,  and  im- 
pair its  \alue.  I  am  aware  that  some  may  con- 
sider this  language  anti-democratic.  But  I  think 
differently.  While  democracy  is  opposed  to  all 
false  and  aristocratic  distinctions,  it  recognizes  all 
distinctions  that  are  real,  and  that  exist  in  the  na- 
ture of  things.  If  I  must  in  order  to  entitle  my- 
self to  the  name  of  democrat,  disregard  the  dis- 
tinctions between  civilized  and  savage,  black  and 
white,  drunk  and  sober,  cheats  and  honest  men, 
then  I  am  no  democrat,  "and  will,  by  God's  help, 
continue  so  until  my  life's  end."  Although  I  never 
served  on  a  jury,  nor  hardly  ever  entered  a  court 
house  in  my  life,  I  suppose  our  present  mode  of  se- 
lecting the  judges  of  all  fact,  and  of  law,  when  they 
choose  it,  (as  Jefferson  describes  them,)  is  this: 
In  ordinary  cases,  they  are  raffled  into  office:  but 
when  a  rich  murderer,  or  skilful  swindler  is  to  be 
cleared,  then  the  system  of  challenging  regular 
jurors,  and  bringing  in  the  right  sort  of  talesmen 
is  resorted  to.  Now  if  this  is  the  right  mode  of 
appointing  our  judges  of  the  law  and  the  facts, 
why  not  fill  the  bench  in  the  same  way?  I  con- 
sider  it  our  duty  to  veto  all  this.  I  consider  the 
office  of  juryman  as  one  of  the  highest  trusts  that 
can  be  conferred  upon  any  man,  and  would  have 
it  filled  by  the  very  best  men  in  the  state.  To  en- 
sure this  result,  I  propose  the  system  of  electing 
jurors,  which  was  adopted  by  our  Saxon  ancestors, 
and  advocated  by  Jefferson.  I  advocate 'their  sys- 
tem because  1  know  of  no  better  one,  and  cannot 
myself  devise  any  other  so  good. 

Should  we  succeed  in  filling  our  jury  benches 
with  men  who  are  fully  qualified  to  sit  there,  the 
legislature  might  with  great  propriety  reduce 
the  number  now  required  to  try  a  cause,  and 
thus  lighten  the  present  tax  on  jurymen's  time 
and  patience.  Business  men,  when  they  submit 
a  dispute  lo  arbitration,  generally  find  three  ar- 
bitrators sufficient;  and  I  see  no  reason  why  more 
than  twice  that  number  of  jurors  should  be  re- 
quired, unless  in  cases  of  great  difficulty  or  im- 
portance. I  would  respect  the  just  rights  of  all 
litigants,  but  at  the  same  time  remember  that 
men  who  are  not  litigants  have  rights  also  and 
ought  not  to  be  dragged  from  their  own  business 
by  dozens  to  settle  other  people's  quarrels,  when 
half  a  dozen  would  answer  all  the  ends  of  justice. 
It  would  also  be  but  just  to  increase  the  pay  of 
jurors  to  say  $1  a  day,  or  10  cents  an  hour.  A 
man  whose  time  is  not  worth  that  is  not  fit  for 
the  office ;  and  when  government  takes  a  man's 
time  or  other  property  by  force  without  payment, 
it  sets  a  most  pernicious  example  to  thieves,  I 


112 


would  not  have  consumed  the  time  of  the  Con- 
vention with  these  remarks,  if  I  did  not  deem  it 
possible  that  some  plan  like  that  I  advocate,  when 
properly  prepared  by  our  judiciary  committee, 
might  obtain  the  sanction  of  this  body.  The 
Whigs  and  Conservatives — those  at  least  who 
are  not  of  the  Norman  stock — should  approve  it 
out  of  respect  to  Woden  and  the  good  King  Al- 
fred ;  the  democrats,  because  it  is  endorsed  by 
Jefferson,  the  Confucius  of  the  new  world.  My 
main  reason,  however  for  the  hope  just  expressed, 
lies  in  the  strong  object-ions  which  exist  against 
the  appointment  of  judges  by  the  present  mode, 
and  the  scarcely  inferior  objections  to  their 
election  by  the  people  direct.  But  should 
we  entrust  the  selection  of  judges,  (as  I 
hope  we  may,)  to  our  chosen  jurors— to  the 
men  who  have  the  best  opportunity  to  know 
personally  the  character  and  fitness  of  candi- 
dates— to  the  picked  men  of  the  whole  people — 
then  our  judges,  while  strictly  amenable  to  the 
intelligence  and  integrity  of  the  community, 
would  have  no  inducement  to  sacrifice  justice 
at  the  shrine  of  popular  prejudice  and  ignorance; 
the  bench  would  be  beyond  the  reach  of  party  and 
of  aristocratic  influence,  and  exempt  from  the 
carelessness  and  corruption  always  induced  by  the 
absence  of  responsibility  to  the  people.  And 
while  the  reform  proposed  would  tend  thus 
strongly  to  secure  an  able,  industrious  and  impar- 
tial bench,  its  effects  would  be  still  more  elevat- 
ing upon  the  jury  itself.  It  would  render  it  im- 
possible for  even  the  most  dexterous  pettifogger 
about  our  courts  to  obtain  a  corrupt  or  incompe- 
tent jury  in  the  whole  state.  It  would  not  only 
restore  to  our  jurors  their  ancient  powers  an<l 
their  legitimate  rights  and  dignity,  but  it  would 
tend  to  render  them  worihy  of  those  honors — 
worthy  of  their  trust.  I  have  ventured  to  obtrude 
these  views,  because  I  think  they  deserve  the 
consideration  of  this  Convention.  Most  that  has 
hitherto  been  said  here  relates  to  the  superstruc- 
ture of  our  judiciary:  I  would  therefore  direct  at- 
tention to  its  foundation  ;  believing  that  if  we  can 
only  perfect  that,  the  superstructure  will  almost 
grow  up  of  itself,and  prove  a  refuge  and  asancluary 
to  generations  yet  unborn.  One  word  as  to  the  cost 
and  trouble  of  electing  jurors.  Were  it  made  the 
duty  of  the  assessors  to  divide  their  respective 
towns  and  wards  into  tithtngs— to  appoint  an  in- 
spector or  overseer  to  each  tithing — and  to  give 
him  on  or  before  the  last  Monday  of  every  year  a 
written  designation  of  its  boundaries  and  inhabi- 
tants subject  to  jury  duty  ;  were  such  inspector 
required  to  convene  his  little  district  on  the  first 
Monday  of  each  year,  and  whenever  a  vacancy 
should  occur,  for  the  purpose  of  electing  a  jury- 
man out  of  their  number,  and  then  to  receive  and 
canvass  the  votes  and  send  the  name  of  the  jury- 
man chosen  to  the  town  clerk,  or  whatever  officer 
might  be  directed  to  keep  the  jury  list— were 
the  performance  of  these  simple  duties  to  be  en- 
forced by  adequate  penalties,  nothing  more  would 
be  required. 

Mr.  STRONG  said  that  this  was  indeed  what  he 
considered  to  be  a  very  novel  proposition.  He 
Could  only  say,  that  he  thought  the  gentleman 
was  something  like,  at  least,  a  century  behind 
the  age.  However,  as  it  was  only  a  matter  of  re- 
ference, he  did  not  know  as  it  made  much  differ- 


ence ;  and  so  he  would  not«iake  any  objections  to 
the  mere  reference. 

Mr.  STEPHENS  said  that  he  did  not  at  first  ful- 
ly comprehend  the  precise  nature  of  the  inquiry 
sought  to  Le  instituted  by  the  resolution  of  his  col- 
'eague,  yet  he  had  listened  with  a  great  deal  of  in- 
terest to  the  arguments  in  support  of  the  proposi- 
tion, which  the  gentleman  had  subsequently  sub- 
mitted to  the  House.  They  contained  several 
points  that  were  new  and  interesting  to  him  ;  and 
he  had  merely  risen  to  say  that  he  should  f  el 
iged  if  his  colleague  would  refer  those  arguments 
to  the  committee,  with  the  resolution  offered  ; — 
there  were  many  suggestions  in  that  statement 
which  he  had  prepared,  that  did  not  occur  to  him 
when  he  first  heard  the  resolution  read. 

Mr.  BASCOM  said  there  was  one  difficulty; 
part  of  the  resolution  belonging  certainly  to  the 
committee  on  the  right  of  suffrage. 

Mr.  HUNT  wished  to  know  then,  if  the  judiciary 
committee  did  not  mean  to  enquire  into,  or  recom- 
mend the  granting  of  the  right  to  the  people  to 
elect  their  own  judges,  as  well  as  other  officers  ; 
that  was  what  he  wanted  to  see  brought  about ; 
the  election  of  judges  as  well  as  jurymen  by  the 
people. 

The  resolution  was  adopted. 

Mr.  CHATFIELD  asked  further  leave  of  ab- 
sence for  judge  NELSON  for  a  week,  who  had  to 
hold  a  U.  S.  Circuit  Court  at  Canandaigua. — 
Granted. 

Mr.  BROWN  said  that  the  members,  he  believ- 
ed, could  much  more  usefully  employ  their  time 
to-day  in  committees  than  in  Convention,  and  he 
therefore  moved  to  adjourn. 

Carried,  and  the  Convention  adjourned  till  next 
day  at  11  A.  M. 


THURSDAY,  (16M  day,)  June  18. 

Prayer  by  the  Rev.  Dr.  W.  H.  CAMPBELL. 
VOTES  &c.  OF  NEW-YORK. 

Mr.  BAKER  said  that  he  had  the  pleasure  of 
presenting  the  returns  of  each  election  district  in 
the  city  of  New-York,  in  answer  to  the  resolu- 
tion he  had  presented  a  day  or  two  since.  He 
would  move  that  they  be  printed. 

His  motion  was  agreed  to. 

COMMON  SCHOOLS. 

The  PRESIDENT  said  that  the  President  of 
the  Common  School  Convention  held  not  long 
since,  had  sent  a  statement  to  the  Convention  m 
the  form  of  a  preamble;  this  was  accompanied  by 
a  resolution  passed  by  that  Convention  and  sent 
here  for  consideration. 

It  was  read,  and  on   motion  of  Mr.  VVAKiJ  re- 
ferred to  standing  committee  No.  12. 
THE  SOCIETY  OF  FRIENDS. 

Mr.  O'CONOR  said  he  held  in  his  hand  a  me- 
morial or  petition,  which  had  been  sent  to  him 
by  the  Society  of  Friends;  it  had  been  adopted  at 
their  last  annual  meeting  at  New-York,  m  May 
last,  and  entrusted  to  him  to  present  to  the  Con- 
vention, together  with  printed  copies  for  the  use 
of  all  the  members ;  .and  with  a  request  that  he 
would  move  its  reference  to  an  appropriate  com- 
mittee The  obj  ect  contemplated  by  the  petition 
was  to  relieve  that  respectable  body  of  citizens 
from  certain  grievances  under  which  they  seem 


113 


to  labor,  and  of  which  they  complain  in  relation 
to  military  service.  He  therefore  presented  it  as 
requested",  and  moved  its  reference  to  the  com- 
mittee on  military  affairs.  Agreed  to. 

EXPENSES  OF  COUNTY  COURTS,  &c. 

The  PRESIDENT  said  that  the  Secretary  had 
received  an  answer  from  JAMES  CONNER,  Esq., 
clerk  of  the  City  and  County  of  New  York,  rela 
tive  to  the  expenses  of  his  court,  the  number  of 
cases  tried,  &c.,  causes  docketted,  &c.,  costs,  da- 
mages, &c.  The  Clerk  would  read  it;  and  he 
would  suggest  that  part  of  it  be  referred  to  the 
judiciary  committee,  and  part  to  the  committee 
of  5. 

Mr.  SHEPARD  asked  if  any  provision  had  yet 
been  made  for  printing  the  answers  to  the  inter- 
rogatories on  these  subjects,  sent  out  by  the  Se- 
cretary ?  The  judiciary  committee  were  acting  as 
rapidly  as  possible,  and  they  were  acting  on  these 
matters  at  the  present  time,  without  any  of  this 
data  before  them  as  a  guide.  Now  the  two  great 
capital  evils  in  the  judiciary  system,  of  which  the 
people  every  where  complain,  and  ask  to  have  re- 
medied, are — 1st,  "  the  great  delay,"  and,  2ndly, 
"  the  great  expense."  Now  the  Convention  had 
ordered  these  very  interrogatories  to  be  sent  out 
in  order,  expressly,  to  get  at  the  expense  of,  and 
the  time  consumed  by,  various  suits.  And  these 
returns  are  the  best  approximation  we  can  get  at, 
as  to  the  expense.  And  those  who  desire  to  have 
the  judiciary  system  as  perfect,  in  all  its  parts,  as 
we  can  get  it,  (and  he  trusted  that,  was  the  desire 
of  every  member,)  and  to  have  legal  business 
transacted  as  free  from  delay  and  expense  as  it 
could  be  procured,  should  have  all  these  facts  be- 
fore them  ;  and  particularly  so  should  the  judiciary 
committee.  The  expense  of  printing  was  not  at 
all  to  be  considered  as  commensurate  with  the 
advantage  of  the  information  sought. 

Mr.  KIRKLAND  said  that  when  they  got  all 
the  returns  in  ai.cl  had  them  digested,  then  they 
could  be  printed ;  not  onry  for  the  information  of 
the  judiciary  committee,  but  for  all  the  members. 
The  present  list  was  not  complete  ;  all  the  civil 
causes  were  not  on  it,  nor  the  number  of  judg- 
ments docketted. 

Mr.  JORDAN  said  that  as  far  as  he  was  acquaint- 
ed with  the  operations  of  the  Judiciary  committee 
this  document  in  its  present  shape  would  be  of 
very  little  use  to  them.  They  would  not  be  pre- 
pared for  some  days  to  make  up  a  statement  or 
report  in  relation  to  the  matters  contained  in  this 
return ;  and  it  would  be  better  to  wait  until  all 
the  documents  came  in,  or  as  many  of  them  as 
they  could  Reasonably  expect  to  receive ;  and 
then  when  the  committee  of  5  had  made  a  digest 
of  them  it  could  be  printed.  He  was  opposed  to 
the  printing  now. 

Mr.  SHEPARD  withdrew  his  motion. 

TAXATION  OF  REAL  ESTATE. 
Mr.  RUGGLES  said  that  on  Saturday  last  he 
offered  a  resolution  in  relation  to  taxation  of  real 
estate  ;  and  on  his  motion  it  was  referred  to  the 
15th  standing  committee;  he  had  it  so  referred 
because  a  resolution  on  a  kindred  subject  had  just 
before  been  referred  to  that  Committee,  at  the 
request  of  the  gentleman  from  Hevkimer  (Mr. 
LOOMIS.)  Since,  then,  however,  the  resolution 
of  that  gentleman,  had  been  taken  from  the  15th 


and  transferred  to  the  standing  committee  No.  2, 
(that  on  the  powers  and  duties  of  the  Legislature) 
and  consequently  he  would  now  move  to  have  his 
own  resolution  taken  from  the  15th  and  sent  to 
the  2d  standing  committee.  No  opposition  ;  and 
it  was  transferred. 

NEW  RULE. 

Mr.  TALLMADGE  said  he  would  move  the 
following  as  a  new  rule  hereafter  for  the  Conven- 
tion : 

Resolved,  That  a  motion  to  strike  out  and  insert  shall  be 
one  motion  and  indivisible. 

Mr.  T.  said  that  he  desired  this  to  be  an  addi- 
tional rule ;  it  was  one  that  was  absolutely  ne- 
cessary to  enable  the  Convention  to  get  along 
with  its  proper  business  hereafter.  By  and 
by,  when  they  came  to  dispose  of  the  different 
amendments  that  would  be  offered  to  the  vari- 
ous reports  of  the  committees,  a  result  would 
be  exhibited  that  would  illustrate  this.  For  in- 
stance, four  gentlemen  would  have  amendments 
to  offer  to  one  proposition ;  a  motion  would  be 
made  to  strike  out ;  the  others  would  all  sustain 
this,  in  hopes  of  having  each  of  their  own  spe- 
cial amendments  adopted  as  a  substitute.  But 
when  they  came  to  act  on  the  affirmative  propo- 
tion  the  difficulty  would  present  itself.  They 
might  vote  on  all  the  amendments  and  re- 
ject them  ,  and  at  last  prefer  the  old  form  of  the 
proposition ;  but  then  in  order  to  restore  to  the 
body  of  it,  the  original  matter,  it  will  be  necessa- 
ry to  move  for  a  reconsideration  ;  and  by  a  rule 
already  passed  in  this  body  that  cannot  be  acted 
on  without  three  days'  notice,  and  it  would  take 
three  days  therefore  to  accomplish  this.  If  we 
consider  the  motion  to  strike  out  to  be  merely 
ministerial — if  the  motion  is  not  indivisible,  there 
will  be  an  opposition  raised  to  every  new  motion 
"  to  insert,"  after  the  original  words  are  stricken 
out.  He  read  from  Jefferson's  Manual  to  sustain 
his  position.  It  was  carried. 

COMMON  SCHOOL  FUND. 
Mr.  NICOLL  offered  this  which  was  referred  : 
Resolved,  That  the  Comptroller  be  requested  to  furnish 
for  the  use  of  the  Convention  a  statement,  showing— 

1.  The  amount  ot  the  school  tuna,  the  character  of  the 
investment,  and  the  amount  of  money  paid  into  the  Treas- 
ury an>-(  not  invested;  also,  a  brief  history  oi  tne  changes 
made  in  the  investment  of  the  capital  with  a  reference  to 
the  laws  under   which  they  were  made  and  the  t  fleet  of 
those   changes  on  the  security  or  productiveness  of  the 
fund. 

2.  The  same  particulars   in   relation  to  the   Literature 
Fund. 

.  A  statement  of  the  present  condition  of  the  U.  S.  de- 
posit fund,  giving  all  the  losses  of  capital  and  specify- 
ing the  counties  in  which  the  same  have  occurred;  also, 
the  amount  of  revenue  derived  annually  from  the  fund,  and 
the  manner  in  which  it  is  appropriated  by  existing  lawsj 
and  showing  the  terms  on  which  these  moneys  were  de- 
posited  in  the  State  Treasury. 

CANAL  DEBT  OF  STATE,  TAXES,  &c. 

Mr.  TILDEN,  from  the  committee  No.  3,  o& 
canals,  public  revenues,  debts,  &c.,  offered  the 
following  : 

Resolved,  That  the  Comptroller  be  requested  to  furnish 
for  the  use  of  the  Convention,  the  following  statements:— 

1.  A  statement  of   the  debts  of  the  State,   and  the  pay- 
ments thereon,  as  exhibited  in  Table  F-,  of  Assembly  Doc- 
ument No  61,  of  184-2.  brought  down  to  June  1,  1846. 

2.  A  statement  of  the  direct  debt  of  the  canals,  showing, 
in  the  order  of  time,  the  periods  at  which  the  principal  be- 
comes   payable;  the  works  for  which  it  was  conlraetedj 
the  times  at  which  the  scrip  was  issued;  the  rate  of  inter 


114 


est  thereon;  and  showing  the  principal  sum,  the  interest 
in  each  year,  on  the  supposition  that  the  debt  be  paid  as 
fast  as  it  becomes  payable. 

3.  A  like  statement  of  the  debt  created  in  aid  of  incorpo- 
rated  companies. 

4.  A  like  statement  of  the  General  Fund  debt,  assuming 
the  Astor  stock,  and  the  Indian  annuities  to  be  paid  in  ten 
years. 

5.  A  like  statement  of  the  whole  debt  united. 

6.  An  account  showing  in  each  year,  from  1817  inclu- 
sive, the  amount  of  the  Salt  tax,  Auction  tax,  Steamboat 
tax,  and  Land  Sales,  —  so  far  as  such  lands  were  not  dona- 
tions to  the  Canal  Fund,—  received  into  the  Canal  Fund; 
and  also  any  payments  by  the  General  Fund  to  supply  de- 
ficits in  the  revenues  of  the  lateral  canals,  and  the  present 
aggregate  amount  thereof,  calculated  on  the  principal  of  a 
yearly  rent,  with  interest  compounded  at  five  per  cent., 
deducting  from  time  to  time,  sums  paid  to  the  Canal  Fund 
into  the  Treasury  and  used  by  the  General  Fund. 

7.  A  like  account,  computing  only   simple  interest  on 
the  moneys  advanced,  making  a  rest  only  when  the  Canal 
Fund  in  effect  made  a  payment  absorbing   the  payment 
for  interest  as  soon  as  may  be,  but  calculating  no  interest 
on  interest. 

8.  The  revenue  of  the  Erie  and  Champlain  Canals  for 
each  year,  and  their  expenses  for  repairs,  superintendence 
and  collection;  and  their  net  revenue. 

9.  The  revenues  of  all  the  canals,  taken  as  a  system  for 
each  year;  the  expenses  of  each  of  them,  and  all  of  them 
collectively,  and  their  nett  revenue. 

10.  The  current  expenses  of  the  State  for  each  year,  be- 
ginning as  early  as  1817,  exclusive  of  payments  for  the 
lateral  canals;  specifying  any  sums  paid  for  interest,  and 
showing  what  the  annual  expenses  would  have  been  if 


the  general  fund  had  been  supplied  with  ready  means,  and 
been  subject  to  no  debt;  and  also  showing  the  yearly 
charge  by  reason  of  any  general  fund  debt. 

11.  An  estimate  of  the  probable  revenues  of  the  general 
fund  under  existing  laws,  and  any  information  he  may 
deem  proper  to  aid  in  forming  a  correct  opinion  on  that 
subject;  and  as  to  probable  current  expenses  of  the  gov- 
ernment, chargeable  on  that  fund 

Mr.  STRONG  very  much  wished  to  know  if 
all  that  matter  was  to  be  spread  upon  the  jour- 
nals.    He  could  not  see  the  use  of  it.     It  mighl 
be  all  very  proper  for  a  legislature  to  call  for  all 
this  information,  but  he  could  not  see  the  use  o 
the  Convention  doing  it,  except  it  was  to  lumber 
up    the    journal  with  a  whole  pack  of  useless 
stuff.     He  could  not  see  any  use  at  all  in  their 
calling    on    the    Comptroller    for  all  this.     He 
should  like  to  know  the  reasons  of  the  mover  for 
doing  it. 

Mr.  TILDEN  said  that  the  information  called 
for  was  necessary  to  enable  the  committee  to 
frame  provisions  in  regard  to  the  future  contrac- 
tion of  debts,  and  the  payment  of  the  existing 
debt.     It  ought  also  to  be  before  the  Convention, 
and  the  committee  had  with  entire  unanimity 
agreed  upon  the  resolution. 
It  was  adopted. 

THE  MILITIA. 

Mr.  BASCOM   offered  the  following    resolu- 
tion which  was  adopted  : 

Resolved,  That  the  committee  on  military  affairs  en- 
expediency  of  exempting  all 
.,__        __________  ^  :e  of  military  duty,  who  shall 

certify  in  writing  to  the  military  commandant,  that  they 
have  conscientious  objections  to  engaging  in  war. 

THE  JUDICIARY. 

Mr.  BASCOM  offered  the  following  resolution  : 
Resolved,  That  the  judiciary  committee  inquire  into  the 
expediency  of  further  continuing  a  judiciary  system  that 
provides  tribunals  of  limited  local  and  inferior  jurisdiction 
tor  one  class  of  suitors,  and  those  of  general  unlimited  anc 
superior  jurisdiction  for  other  classes,  involving  the  neccs 
eity  of  appeals  from  court  to  court,  to  procure  final  deci 
gions:  —  And  farther,  That  the  said  committee  inquire  into 
the  practicability  and  expediency  of  so  changing  the  cha 
racter,  jurisdiction  and  powers  of  the  justices'  courts  as  tr 
make  them  courts  of  conciliation. 


Mr.  BASCOM  said  that  he  hoped  he  should  not 
•or  a  moment  be  suspected  or  charged  with  any 
disrespect  to  the  judiciary  committee  1o  which  he 
himself  belonged,  by  offering  this  resolution.  He 
lid  not  offer  it,  either  because  the  last  part  em- 
jodied  his  own  views,  or  because  the  judiciary 
committee  had  not  considered  the  matter;  but  he 
lad  done  so  in  order  to  call  the  attention  of  mem- 
jers  particularly  to  the  subject,  and  to  elicit  the 
deas  and  views  of  others  upon  it.  Many  of  the 
members  had  given  this  subject  considerable  at- 
tention, and  he  hoped  it  would  result  in  some 
proposition,  by  which,  if  adopted,  the  objects 
sought  for  could  be  attained. 

Mr.  STETSON  said  that  as  it  was  only  a  mere 
matter  of  form,  the  resolution  was  unnecessary.  — 
For  as  the  gentleman  was  himself  a  member  of  the 
judiciary  committe  he  could  at  any  time  lay  his 
own  views  before  that  committee,  without  having 
them  referred  thereto,in  the  form  of  a  resolution  by 
the  Convention.  He  rose  merely  to  meet  the  ques- 
tion of  any  implied  instructions  to  that  commit- 
tee, that  might  arise  from  the  position  which  had 
been  assumed.  For  when  a  gentleman  was  not  a 
member  of  a  certain  committee,  then  the  only 
way  in  which  he  could  get  his  views  before  it, 
was  by  offering  a  resolution  here  in  the  House  ; 
but  this,  certainly,  was  not  the  position  of  the 
gentleman  from  Seneca,  (Mr.  BASCOM,)  who  be- 
ing now  a  member  of  the  committee,  to  which  he 
desired  this  resolution  sent,  could  have  free  ac- 
cess to  all  its  members,  and  freely  spread  his 
views  before  them,  and  interchange  opinions.  — 
And  yet  this  resolution  is  to  pass  through  this 
House  with  a  sort  of  directory  clause  to  the  com- 
mittee. But  as  the  gentleman  has  disclaimed 
any  such  intention  as  that  which  he  (Mr.  STET- 
SON) had  at  first  apprehended  the  resolution  im- 
)lied,  he  would  offer  no  further  opposition. 

Mr.  BASCOM  said  that  he  certainly  had  not 
meant  any  thing  of  the  kind  ;  he  did  not  wish  to 
commit  that  committee  in  the  least  to  the  propo- 
sition he  had  presented  ;  nor  did  he  desire  now  to 
indicate,  himself,  what  course  should  be  pursued. 
rle  had  merely  offered  it,  as  many  other  gentle- 
men had  offered  them,  as  individual  propositions, 
and  on  his  own  individual  responsibility.  He  was 
induced  to  do  so,  because  a  great  variety  of  plans 
and  propositions  had  gone  through  this  House 
(the  Convention)  with  all  sorts  of  plans  for  judi- 
cial reform,  &c.,  many  of  them  containing  com- 
plicated systems  of  arrangements  for  courts  of 
Law  and  legal  systems,  with  general  and  concur- 
rent jurisdiction.  He  wanted  this  plan  to  go  also 
with  them,  as  a  sort  of  antagonist  proposi- 
tion, from  the  Convention  to  the  committee.  — 


, 

This  was  his  reason  for  offering  the  resolution, 
and  also  with  a  desire  to  invite  discussion  or  so- 
licit suggestions,  so  that  the  proper  object  should 
be  attained,  if  possible 

SALES  IN  CHANCERY-INFANTS'  ESTATES. 

Mr.  TAGGART  offered  the  following  resolu- 
tion : 

Resolved.  That  the  Secretaries  of  the  Convention  ad- 
dress to  the  Register,  Assistant  Register  and  Clerks  of  the 
Court  of  Chancery  respectfully  the  following  enquiries:— 

1st  How  many  applications  for  the  sale  of  iniants  real 
estate  were  made  in  su^h  court  during  the  year  1845? 

2d  What  AN  as  the  aggregate  value  of  the  property  of  in- 
fants' sold  by  order  of  the  court  during  said  year  184$,  and 


115 


what  was  the  value  of  such  property  in  each  case  respect- 
ively ? 

3d.  What  was  the  aggregate  amount  of  costs  taxed  and 
allowed  for  conducting  such  sal^s? 

4th.  What  is  the  whole  amount  of  moneys  now  invested 
lor  the  use  of  infants  in  said  court? 

6th.  The  commissions  retained  by  the  Register,  Assist- 
ant Register  and  Clerks  respectively  from  the  proceeds  of 
infant's  estate? 

Mr.  WORDEN  wished  that,  as  all  the  money 
arising  from  these  sales  is  now  paid  into  the 
Court  of  Chancery,  that  the  gentleman  from  Gen- 
esee,  (Mr.  TAGGART).  would  modify  his  resolu- 
tion so  as  to  make  it  embrace  an  account  of  all 
the  monies,  &c.  paid  to  these  Clerks  and  Regis- 
ters in  Chancery  as  commissions,  fees,  &c  on  the 
amount  of  sales  passing  through  their  hands. 

Mr.  TAGGART  assented  to  this. 

Mr.  BROWN  said  that  he  also  wished  to  know 
how  much  of  these  costs  in  Chancery  are  paid 
for  Master's  fees.  In  his  part  of  the  country,  tlie 
Master's  swallow  up  nearly  all  the  costs  and  fees; 
and  as  this  is  a  political  office,  they  ought  to  get 
at  these  facts. 

The  PRESIDENT  said  that  the  returns  asked 
for  at  present,  from  the  masters  in  chancery, 
merely  embraced  the  gross  amount  of  theij  fees ; 
and  not  the  fees  arising  from  any  particular 
branch  of  their  business. 

Mr.  SHEPARD  wished  to  know  if  the  enquiry 
embraced  the  commissioners  on  investments  of 
dower  estates  ? 

Mr.  WORDEN  said  that  it  did  not. 

Mr.  TAGGART  said  that  in  drawing  up  his 
resolution  he  had  only  called  for  the  aggregate 
amount ;  and  therefore  the  answer  to  it  would 
not  add  anything  to  that  from  the  call  already 
made,  which  he  knew  nothing  of  before,  and  as 
many  gentlemen  wished  to  add  amendments,  he 
would  withdraw  the  resolution  for  the  present  so 
that  they  all  might  be  embodied  in  it. 
FUTURE  REVISIONS  OF  THE  CONSTITUTION. 

Mr.  MANN  offered  the  following,  and  it  was 
adopted  : 

Resolved,  That  it  be  referred  to  the  committee  on  future 
amendments  and  revisions  of  the  constitution,  to  consider 
the  propriety  of  amending  the  constitution,  so  as  to  submit 
to  the  electors  of  this  state,  at  a  general  election  periodi- 
cally, or  every  —  years,  whether  they,  the  people,  will 
call  a  Convention  to  revise  the  Constitution,  or  not. 

Mr.  HAWLEY  asked  for  leave  of  absence  for 
Mr.  CROOKER  for  10  days.  Agreed  to. 

Mr.  RUGGLES  said  it  was  necessary  they 
should  spend  as  much  time  now  in  committee  as 
possible,  and  moved  an  adjournment.  Carried. 

Adjourned  till  Friday  at  11  A.  M. 


FRIDAY,  (llth  day")  June  19. 
EXPENSE  OF  THE  REGISTRY  LAW. 
The  PRESIDENT    presented  a  statement  of 
the  expenses  incurred  in  the  city  and  county  of 
New  York  in  registering  the  voters  of  that  coun- 
ty.    It  amounted  to  $17,878  73. 

On  motion  of  Mr.  KENNEDY,  it  was  referred 
to  the  commitee  on  the  right  of  suffrage. 

EXPENSES  OF  THE  COURTS. 
A    communication    was    received    from    the 
Comptroller  relative  to  the   expenses  of   several 
courts  of  law  and  equity,  in  answer  to  a  resolution 
of  the  Convention  on  that  head. 
Mr.  WARD  suggested  that  it  should  probably 


be  referred  to  the  committee  of  5  ;  but  afterwards 
at  the  suggestion  of  tho  President,  moved  to  refer 
it  to  the  Judiciary  Committee  and  it  was  so  re- 
ferred. 

A  RECESS. 

Mr.  STRONG  moved  that  when  the  Conven- 
tion adjourn,  it  adjourn  until  Monday  at  11  A. 
M.  He  said  that  it .  certainly  did  seem  to  him 
that  the  time  of  the  Convention  could  be  much 
better  spent  in  deliberations  in  their  respective 
Committees,  than  by  meeting  here  in  the  House 
to-morrow.  This  was  his  leading  object  in  offer- 
ing the  resolution ;  there  was  a  great  deal  of  work 
to  do  in  the  Committees,  and  very  little  work  to 
do  here  in  the  House. 

Mr.  LOOMIS  wished  to  say  a  word  or  two  be- 
fore that  resolution  was  put ;  lie  was  very  appre- 
hensive that  if  that  resolution  was  carried,  the 
number  of  the  gentlemen  detailed  to  serve  on 
Committees  would  be  very  greatly  diminished. 
Many  of  the  members  while  here,  were  but  a 
short  distance  from  home ;  and  could  soon  and 
easily  reach  home  by  steamboat  or  railroad.  And 
they  may  if  we  adjourn  over  until  Monday, 
find  it  very  convenient  to  adjourn  home,  which 
many  others  of  us  cannot  do.  [Laughter.]  He 
hoped  the  resolution  would  not  pass. 

Mr.  BROWN  said  that  he  understood  that  it 
was  the  intention  of  some  gentleman  here  to  of- 
fer a  resolution  in  the  course  of  next  week,  to  the 
effect  that  the  Convention  shall  take  a  recess  for 
some  days  or  a  week  or  so,  somewhere  in  the 
neighborhood  of  the  1st  of  Juy.  And  in  order  to 
procure  a  pretty  unanimous  and  harmonious  vote 
on  that  point,  he  hoped  that  there  would  be  no  pre- 
vious adjournment,  beyond  the  usual  periods. — 
For  a  recess  at  that  time  would  be  very  desirable; 
some  would  wish  to  go  home  for  the  purpose  of 
spending  a  few  days  with  their  families — some 
would  want  to  go  for  the  purpose  of  taking  in 
their  harvest,  (a  most  desirable  thing) — among 
which  class  he  must  place  himself — others  to  ce- 
lebrate the  4th  of  July — a  very  appropriate  dis- 
position of  their  time — and  others  to  celebrate 
the  recent  splendid  victories  on  the  Rio  Grande, 
as  that  would  be  a  very  appropriate  time  for  the 
celebration  of  the  triumphs  of  the  gallant  little  ar- 
my there.  And  as  he  did  desire  to  see  a  recess  of 
some  days  taken  at  that  period,  he  hoped  no  long 
adjournment  would  be  had  now. 

Mr.  STRONG  said  that  it  was  a  matter  of  in- 
difference to  him  whether  his  little  resolution  of 
adjourning  over  for  one  day.  should  pass  or  not ; 
but  it  did  make  a  great  difference  to  him,  and  to 
many  others  of  the  members,  whether  a  proposi. 
ti6n,  such  as  that  just  stated  by  the  gentleman 
from  Orange,  (Mr.  BROWN)  passed  or  not.  He 
saw  that  there  was  a  very  great  disposition  on  the 
part  of  several  of  the  gentlemen  to  go  away,  by 
and  by — about  the  4th  of  July,  for  two  or  three 
weeks ;  and  gentlemen  talked  of  voting  down  his 
little  proposition  to  adjourn  for  a  day,  in  order  to 
get  a  large  slice  by  and  by.  He  did  not  care  any- 
thing at  all  about  it,  but  still,  as  he  wished  to  try 
the  feelings  of  gentlemen  on  this  point  he  could 
not  withdraw  it.  He  wanted  some  kind  of  a 
steering  oar  to  have  by  and  by  to  guide  him,  when 
gentlemen  should  ask  him  to  vote  on  their  reso- 
lution for  the  big  adjournment. 

Mr.  WARD  wished  to  know  if  it  was  the  in- 


116 


ten'ion  ot  the  gentleman  from  Orange  (Mr.  BROWN) 
or  any  of  his  friends,  to  take  up  the  resolution  he 
had  alluded  to,  (for  a  recess)  either  to-day  or  to- 
morrow; he  wished  to  learn  this,  so  as  to  guide 
him  in  voting.  If  we  met  to-morrow,  we  should 
probably  have  only  to  receive  some  few  resolutions, 
which  perhaps  could  as  well  be  offered  to-day. — 
However,  his  only  desire  was  to  see  the  business 
of  the  committees  disposed  of  as  speedily  as  was 
consistent  with  prudence,  good  sense,  and  the 
interests  of  the  people  of  the  State. 

Mr.  MORRIS  said  that  he  had  intended  to  ask 
the  Convention  to  go  into  committee  of  the  whole 
to-diy  on  the  report  which  he  had  presented  the 
other  day  on  "  the  powers  and  duties  of  the  Gov- 
ernor" &c.  Not  for  the  purpose  of  discussing  it 
however,  but  for  the  purpose  of  altering  the  Ian- 
guage  of  the  report  merely.  He  was  one  of  those 
who  were  of  the  opinion  that  this  report  should  be 
one  of  the  last  if  not  the  very  last,  to  be  acted  up- 
on and  disposed  of  finally  in  the  Convention.  For 
they  could  not  tell  what  powers  and  duties  should 
properly  be  delegated  to  the'executive,  until  they 
saw  the  action  of  other  committees  whose  reports  or 
resolutions  may  effect  that  office.and  saw  what  pow- 
ers and  duties  they  proposed  to  leave  him.  The 
alteration  in  the  phraseology  of  the  report  would 
not  occupy  over  5  or  10  minutes  at  the  farthest,  in 
the  committee  of  the  whole.  And  while  he  was 
up,  he  would  say  on  this  question  of  adjournment, 
that  if  they  were  to  adjourn  over  to-morrow,  it 
would  benefit  but  a  very  few  ;  he,  it  was  true, 
would  be  one  of  the  few,  for  he  was  now  released 
from  aay  committee,  hiving  got  through  with  the 
labors  of  his  own;  but  he  thought  that  probably  it 
might  tend  to  break  up  the  deliberations  of  some  of 
the  other  committees.  But  there  was  another  im- 
portant point  for  consideration;  we  are  daily  re- 
ceiving answers  from  county  clerks  and  others,  to 
enquiries  which  we  have  directed  to  be  sent  to 
them;  and  it  is  important  that  the  Convention 
should  act  on  these  as  fast  as  it  receives  them,  and 
assign  them  to  the  appropriate  committees  for  their 
information  and  guidance;  and  therefore  a  short 
session  to-morrow,  of  at  least  one  hour,  would 
enable  them  to  receive  any  resolutions,  and  so  to 
dispose  of  these  returns  as  to  get  the  benefit  of 
them  in  the  committee  as  speedily  as  possible. 

Mr.  CHATFIELD  said  that  he  would  not  de- 
tain the  Convention  by  any  unnecessary  or  length- 
ened remarks;  it  was  a  matter  of  very  little  mo- 
ment to  him  personally,  whether  they  adjourned 
over  till  Monday,  or  spent  an  hour  in  Convention 
to-morrow  in  receiving  and  referring  resolutions; 
but  he  thought  it  best  that  there  should  be  a  ses- 
sion to-morrow,  even  if  it  was  but  a  short  one.  'As 
to  any  adjournment  of  this  body,  either  for  a  long- 
er or  shorter  period,  he  thought  it  was  not  to  be 
tolerated ;  the  people  did  not  desire  it ;  the  peo- 
ple did  not  expect  it ;  nor  would  they  be  pleased 
with  it-  For  his  own  part,  he  felt  and  knew  that 
his  constituents  sent  him  here  to  do  a  certaii 
work  ;  to  aid  in  amending  the  present  State  Con- 
stitution ;  and  in  his  discharge  ot  that  duty,  whicl 
he  had  undertaken  cheerfully,  he  should  act  as  he 
had  always  done  in  his  past  public  career;  en- 
deavor to  perform  it  as  promptly,  as  cautiously  anc 
as  efficiently,  as  was  consistent  with  the  best  inte- 
rests of  the  people,  and  as  his  abilities  would  ena 
ble  him;  without  believing  this  to  be  less  a  dutj 


nan  any  other  that  he  or  aj^y  one  might  under- 
ake  to  perform  in  private  life  He  would  dis. 
harge  it  without  any  regard  to  his  own  personal 
cnvenience.  Some  members  seem  to  act  as  if  they 

ete  merely  sent  here  as  a  matter  of  mere  perso- 
al  advantage  ;  and  as  if  the  principal  point  they 
lad  to  consult  was  their  own  personal  con- 
"enience.  He  would  act  with  the  same  diligence 
nd  sense  of  responsibility  as  if  he  was  a  mere 
lired  man,  employed  to  do  a  certain  work;  and 
vithout  having  any  more  right  to  study  his  own 
personal  convenience  than  any  such  hired  man.  If 
he  adoption  of  the  motion  to  adjourn  to-morrow 
would  have  the  effect  of  preventing  any  more 
engthened  adjournment  hereafter,  he  would  cer- 
ainly  vote  for  it.  For  they  might  by  adjourning 
>rotract  their  session  till  the  1st  of  November,  or 
ill  the  time  for  the  people  to  vote  on  the  amended 
constitution,  as  they  would  come  back  from  a  re- 
ess  of  one  or  two  weeks  much  less  fitted  to  dis- 
)atch  their  business  than  when  they  went  away. 
This  breathing  time  would  give  them  renewed  en- 
ergies to  go  into  the  debate  with  fresh  vigor.  They 
were  now  in  the  third  week  of  the  session ;  and 
as  yet  no  single  proposition  had  been  definitely 
acted  -upon ;  but  one  had  been  submitted  to  the 
louse ;  and  it  was  his  firm  belief  that  their  duty 
;o  their  constituents  impressively  required  that 
without  any  of  these  adjournments,  all  the  leisure 
should  be  devoted  to  their  committees,  and  that 
hey  should  go  on  and  transact  their  business  as 
speedily  as  possible. 

Mr.  STRONG  believed  that  he  had  now  accom. 
plished  the  object  he  designed  in  offering  his  re- 
solution. He  had  drawn  out  the  intentions  of 
gentlemen  as  to  their  designs  in  relation  to  ad- 
ourument.  He  preceived  that  there  were  those 
who  were  desirous  of  adjourning  about  the  fourth, 
jut  he  knew  another  class  who  were  in  favor  of 
an  adjournment  at  another  time,  and  for  a  much 
more  important  purpose  than  celebrating  a  holi- 
day—that of  harvest.  He  would  now  withdraw 
tiis  resolution. 

BOARDS  OF    SUPERVISORS— THEIR  POWERS. 

Mr.  FORSYTH  offered  the  following  resolu- 
tion : 

Resolved,  That  it  be  referred  to  the  15th  standing  com- 
mittee,  to  inquire  into  the  expediency  of  conferring  upon 
the  Boards  of  Supervisors  of  the  several  counties  of  this 
state  by  constitutional  provision,  the  power  of  legislation 
with  respect  to  the  location,  erection,  and  maintenance  of 
public  buildings,  bridges,  and  highways;  the  erection  and 
division  of  towns;  the  election,  number,  term  of  office,  and 
compensation  of  all  town  (  ffieers,  police  courts  and  courts 
of  special  sessions;  the  power  of  raising  money  by  taxation 
upon  real  and  personal  property;  and  generally  with  re. 
spect  to  all  other  matters  of  a  purely  local  nature. 

It  was  adopted. 

Mr.  BASCOM  asked  leave  of  absence  for  Mr. 
J.  J.  TAYLOR,  of  Tioga,  for  three  days.  Granted. 
SAFE  KEEPING  OF  THE  PUBLIC  MONIES. 

Mr.  MANN  offered  the  following  resolution: 

Resolved,  That  it  be  referred  to  committee  No.  3,  to  take 
'nto  consideration  the  propriety  and  expediency  of  report- 


the  intervention  or  agency  of  banking  institutions  or  mo- 
neyed corporations,  and  separating  the  state  finances  from 
the  power,  control,  and  agency  of  all  moneyed  corpora- 
tions. 
It  was  adopted, 


117 


EXHIBIT  OF  THE  AFFAIRS  OF  BANKS  AND  OTHER 
INCORPORATIONS. 

Mr.  RUGGLES  offered  the  following  : 
Resolved,  That  it  be  referred  to  the  17th  standing  com- 
mittee to  enquire  into  the  expediency  of  establishing  some 
power  or  authority  by  which  the  stockholders  or  creditors 
of  banking  and  other  private  corporations  may,  by  sum- 
mary examination  under  oath  of  all  officers  and  agents  of 
such  corporations,  enquire  into,  discover,  and  publish  the 
situation  and  condition  of  their  afl'airs  in  all  respects,  and 
the  particulars  of  the  management  and  conduct  oi  the  of- 
ficers and  agents  of  the  corporation  in  relation  to  its  affairs. 
Mr.  CAMBRELENG  suggested  that  the  refer- 
ence should  be  diyided— the  matter  relating  to 
banks  to  one  committee,  and  that  relating  to  pri- 
vate incorporations  to  another. 

Mr.  RUGGLES  accepted  the  amendment,  and 
the  resolution  was  adopted. 

ESPECIAL  PRIVILEGES. 

Mr.  ST.  JOHN  offered  the  following  resolution: 
Resolved,  That  it  be  referred  to  the  llth  standing  com- 
mittee to  consider  and  report  as  to  the  propriety  of  prohi- 
biting the  legislature  from  granting  any  privileges  or  ex- 
emptions to  any  citizens  beyond  those  of  other  citizens, 
and  from  granting  to  any  association  of  individuals  or  body 
corporate,  any  privileges  or  exemptions  which  are  denied 
to  other  citizens— except  such  privileges  and  exemptions 
as  are  expressly  provided  for  in  the  constitution. 
CODIFICATION  OF  THE  LAWS. 
Mr.  .VHITE  called  for  the  consideration  of  the 
resolution  of  enquiry  presented  by  him  on  Friday 
last  as  to  the  expediency  of  a  thorough  reform  ol 
the  courts  and  practice,  and  also  of  a  codification 
of  the  written  and  unwritten  law,  and  an  exten- 
sion of  the  right  of  trial  by  jury. 

Mr.  W  asked  that  the  inquiry  might  be 
divided,  so  that  so  much  of  the  resolution  as  re- 
lated to  the  courts  of  law  and  equity,  &c.,  be  re- 
ferred to  the  judiciary  committee  ;  and  so  much  as 
related  to  the  codification  of  the  laws,  to  a  select 
committee 

Mr.  N1COLL  moved  that  the  select  committee 
consist  of  7  merr.bers  This  was  also  agreed  to. 
THE  ERECTION  AND  DIVISION  OF  COUNTIES. 
Mr.  STOW  offered  the  following  resolution  : 
Resolved,  That  the  committee  on  the  powers  and  duties 
of  the  legislature,  be  instructed  to  inquire  into  the  expe- 
diency of  providing  in  the  Constitution,  that  before  any 
law  erecting  a  new  county  shall  take  effect,  the  location 
of  the  public  buildings  shall  be  designated,  and  then  it 
shall  be  submitted  to  the  electors  within  the  limits  of  the 
proposed  county  to  determine,  by  a  majority  of  the  votes 
given,  whether  such  county  shall  be  established  or  not: — 
And  whether  any  law  annexing  part  of  one  county  to 
another,  ought  not  to  be  restrained  from  taking  effect,  un 
til  the  electors  residing  within  the  limits  of  the  district  so 
to  be  annexed,  shall  have  determined  in  its  favor. 

It  was  adopted. 

DAMAGES  TO  CANAL  CONTRACTORS. 
Mr.  JORDAN  offered  the  following : 
Resolved,  That  the  Comptroller  be  requested  to  repor 
to  this  Convention  the  amount  of  all  moneys  paid  to  con 
tractors  with  the  State  for  the  enlargement  or  construction 
of  public  works — as  damages  for  the  violation  or  recisio: 
of  contracts  on  the  part  ol  the  State:  And  also  all  claim 
of  a  similar  character  against  the  State,  so  far  as  he  may 
have  it  in  his  power  to  ascertain  the  same. 

It  was  adopted. 

PLAN  FOR  A  JUDICIARY  SYSTEM. 

Mr.  HARRISON  presented  a  plan  for  a  judi 
ciary  system,  which  he  asked  to  have  referred  t 
the  proper  committee.  It  was,  he  understood 
one  of  great  merit,  and  was  prepared  by  Mr 
CLARK  of  New  York.  It  was  so  disposed  of. 


ROYAL  CHARTERS  AND  FRANCHISES. 
Mr.  MURPHY  offered  the  following: 
Resolved,  That  it  be  referred  to  the  following  commit- 
ees  respectively  to  inquire  into  the  expediency  of  striking 
ut  of  the  constitution,  as  useless  and  unnecessary,  and 
iable  to  popular  misconstruction— as  follows: 

1.  To  the  committee  on  the  creation   and  division  of   es- 
ates    in  l.mds— so  much  of  the  constitution  as  declares 
hat  nothing  contained    therein  shall  effect  any  grants  of 
and  within  this  state   made  by  authoiity  of  the  King  of 

Great  Britain  or  his  predecessors,  before  the  14th  day  of 
October  1775,  or  affect  any  such  grants  since  made  by  this 
tate,  or  by  persons  acting  under  its  authority. 

2.  To  the   committee  on  the  organization  of  cities  and 
'illeges,  so  much  as  declares  that  nothing  contained  there- 
n  shall  annul  any  charters  to  bodies'  politic  or  corporate 
)y  the  said  King  or  his  predecessors,  made  before  thu  said 
lay,  or  shall  effect  any  such  charters  since  made  by  this 

state,  or  by  persons  acting  under  its  authority. 

Mr  MURPHY  said  it  would  be  proper,  in  order 
o  prevent  misapprehension  as  to  his  object,  to 
state  that  in  offering  this  resolution  he  had  no  de- 
sire or  wish  to  interfere  with  the  rights  of  property, 
whether  that  property  be  in  lands  or  in  franchises 
n  the  nature  of  private  property.  If  this  provi- 
lion  be  stricken  out  of  the  Constitution,  there  will 
itill  remain  the  provision  that  nothing  contained 
n  that  instrument  should  affect  or  impair 
he  obligations  of  contracts  or  the  rights  of 
property,  which  would  serve  every  purpose  for 
which  this  proposition  was  originally  intro- 
duced. The  object  for  which  he  introduced 
this  resolution  was  to  prevent  a  very  common 
error  in  this  community — an  extensive  error — that 
;here  is  something  in  charters  granted  prior  to  the 
ormation  of  the  constitution,  so  very  sacred  that 
they  may  not  be  touched,  while  charters  granted 
since  may  be.  Now  the  charter  of  the  city  ot  Buf- 
falo or  Brooklyn  may  be  altered  or  repealed  by  the 
Legislature,  but  the  moment  you  touched  the  an- 
cient city  of  Albany,  granted  in  1656,  by  a  royal 
Governor,  you  are  touching  something  sacred. — 
Now,  he  did  not  present  an  imaginary  case  here, 
but  one  in  which  we  had  before  us  every  day  the 
evidence  of  the  truth  of  what  he  said.  By  the 
chartei  of  the  city  of  Albany,  to  which  he  referred, 
there  is  conferred  on  theJMayor  the  exclusive  pow- 
er to  grant  licenses  to  tavern  keepers,  as  he  was 
informed,  (and  if  he  was  wrong  the  gentleman 
from  Albany  could  correct  him.)  And  he  under- 
stood that  the  Mayor  of  that  city — notwithstand. 
ing  the  supreme  power  of  the  State  and  the  peo- 
ple of  Albany  have  united  to  say  that  no  license 
shall  be  granted — persevered  in  granting  them. — 
He  (Mr.  M.)  did  not  wish  to  be  misunderstood 
on  this  subject.  In  regard  to  Temperance, 
he  did  hold  that  the  great  cause  was  more 
likely  to  be  injured  than  benefitted  by  at- 
tempts to  enforce  obedience  to  a  sumptuary  law, 
as  he  regarded  it.  He  merely  referred  to  this 
as  an  illustration,  and  if  it  was  law  it  should  be 
obeyed  as  well  in  Albany  as  in  Buffalo.  He  held 
that  all  public  powers  were  held  in  trust  for  pri- 
vate purposes,  and  he  did  not  wish  that  the  error 
should  prevail,  as  it  did<in  the  community,  and  in 
high  places  too,  that  the  charter  <f  a  city  was  now 
protected  by  the  Constitution  from  the  exercise  of 
the  sovereign  power.  In  regard  to  the  form  of  the 
resolution  a  part  of  it  referred  to  the  committee  of 
which  he  was  chairman.  Properly,  perhaps  that 
did  not  belong,  under  the  present  arrangement  of 
committees,  to  that  committee,  but,  however,  in 
order  that  it  might  be  before  some  committee  he 


118 


had  moved  its  reference  there.  It  was  immaterial 
whether  it  went  there  or  to  the  committee  on  the 
rights  and  privileges  of  the  citizen.  It  was  a  mere 
matter  of  form. 

Mr.  JORDAN  considered  this  a  pretty  import- 
ant resolution  in  its  principles,  and  he  rose  to 
move  that  it  be  laid  on  the  table,  so  that  in  some 
form  or  other,  the  sense1  of  the  Convention  might 
be  taken  out  before  it  was  referred  to  a  commit- 
tee. It  was  a  matter  of  very  great  question,  wheth- 
er, under  the  treaty  of  1783,  between  the  British 
Government  and  the  American  People,  we  were  at 
•liberty,  in  any  way,  to  legislate,  either  by  Con- 
stitution or  otherwise,  so  as  to  affect  vested  rights. 
He  was  not  disposed  to  go  into  an  explanation  of 
his  views  at  this  time  ;  he  had  risen  but  to  move 
to  lay  the  resolution  on  the  table,  in  order  to  di- 
rect attention  to  it  before  it* went  to  a  committee. 

The  resolution  was  laid  on  the  table,  with  the 
assent  of  Mr.  MURPHY. 

THE  EXERCISE  OF  THE  PARDONING  POWER. 

Mr.  SHEPARD  offered  the  following  resolution: 

Resolved,  That  the  Governor  be,  and  hereby  is,  request- 
ed to  furnish  to  this  Convention — 

1  The  number  of  applications  for  pardon  for  criminal 
oftences,  made  during  the  year  1845. 

2.  The  number  of  pardons  granted  on  such  applications 
during  said  year. 

It  was  adopted. 

APPRAISAL  OF  PRIVATE  PROPERTY  TAKEN  FOR 
PUBLIC  PURPOSES. 

Mr.  STOW  offered  the  following  resolution: 
Resolved,  That  the  committee  on  personal  rights  be  in- 
structed  to  inquire  into  the    expediency  ot   providing  the 
means  by  which  the  value  of  private  property  shall  be  as. 
certained,  when  taken  lor  public  purposes. 

Mr.  S.  said  that  he  observed  that  the  commit- 
tee on  personal  rights  had  a  vast  amount  of  busi- 
ness referred  to  them;  but  he  hoped  the  Conven- 
tion and  the  committee  uould  pardon  him  in  ex- 
pressing his  earnest  desire  that  they  would  exam- 
ine and  see  whether  the  Constitution  was  now 
sufficiently  guarded  in  respect  to  private  property. 
It  now  provided  that  it  shoudd  not  be  taken  for  pub- 
lic use,  without  just  compensation  to  the  own- 
ers thereof.  Under  the  determinations  of  the 
courts  by  which  we  are  ail  bound,  whatever  may 
be  our  private  opinions,  the  legislature  may,  in  its 
discretion,  provide  the  means  or  tribunal  by  which 
that  compensation  is  ascertained.  Now,  it  must 
be  obvious  that  the  security  of  personal  propeny 
is  left  entirely  at  the  mercy  of  the  legislature. — 
If  the  party  taking  the  property  can  also  provide 
its  own  tribunal,  it  might  be  as  well  to  let  him 
take  it  without  any  tribunal.  This  operated  very 
severely  in  cities,  where  the  powei  was  conferred 
on  the  Corporations  to  appropriate  private  pro- 
perty, and  to  appoint  their  own  appraisers — grant- 
ing the  privilege  also  of  an  appeal  to  the  same 
Council  which  authorized  the  taking  of  the  pro- 
perty !  He  hoped  he  would  be  pardoned  in  ex- 
pressing his  earnest  desire  ;  that  there  should  be 
some  relief  ife  this  case. 

SECURITY  FOR  COSTS. 

Mr.  NELLIS  offered  the  following  resolution : 
Resolved,  That  the  committee  on  the  judiciary  be  di- 
rected to  inquire  into  the  expediency  of  making  some  con- 
stitutional provision,  whereby  a  party  on  commencing  an 
action  at  law  or  in  equity,  or  in  removing  any  cause  or 
suit  at  law  or  in  equity  to  a  higher  court  or  tribunal  than 
the  one  in  which  it  was  commenced,  shall  be  required  to 


give  security  for  the  payment  otall  costs,  he  or  she  may 
be  liable  to  pay  to  the  opposite  party,  and  also  to  give  ei- 
ther party  on  the  trial  of  any  cause  or  matter,  the  right  of 
calling  on  the  opposite  party  as  a  witness,  and  having  the 
benefit  of  his  or  her  testimony. 

It  was  adopted. 
ARRANGEMENT  OF  THE   NEW  CONSTITUTION. 

Mr.  BRAYTON  offered  the  following  resolu- 
tion : 

Resolved,  That  a  committee  ot  seven  be  appointed, 
whose  duty  it  shall  be  to  examine  into  and  report  upon  the 
following  subjects: 

1.  The  arrangement  of  the  several  articles  and  sections 
of  the  Constitution  as  amended  and  adopted. 

2.  The  manner  and  form  in  which  the  Constitution   as 
amended  and  adopted  shall  be  submitted  to  the  people  of 
this  State  for  their  adoption  and  rejection. 

3.  The  publication  ol  the  amendments,  or  of  the  Consti- 
tution  as  adopted 

4.  The  form  of  the  notice  of  the  election. 
it.  The  form  of  the  ballot. 

Mr.  MARVIN  suggested  that  it  was  quite  too 
early  to  raise  such  a  committee.  It  was  better  to 
wait  until  we  had  come  to  some  definite  conclu- 
sion. The  resolution  although  it  would  be  very 
proper  in  its  time,  had  better  lay  on  the  table. 

Mr.  BRAYTON  had  no  objection  to  that  dispo- 
sition of  it. 

THE  DURATION  OF  LEGISLATIVE  SESSIONS. 

Mr.  CANDEE  moved  the  following  resolution  : 

Resolved,  That  it  be  referred  to  the  2d  standing  com- 
mittee to  inquire  into  the  expediency  of  restricting  the  an- 
nual sessions  of  the  Legislature  of  the  State  to  a  term  not 
exceeding  90  days;  and  whenever  the  Legislature  shall 
continue  in  session  beyond,  the  time  above  specified,  they 
shall  do  so  without  compensation,  except  incases  oi  ex 
treme  emergency,  in  which  cases  the  Governor  ir-ay  have 
the  power  to  determine. 
It  was  adopted. 

SECURITY  OF  PRIVATE  PROPERTY. 
Mr.  RICHMOND  offered  the  following  resolu] 
tion : 

Resolved,  That  the  committee  on  the  rights  and  privile- 
ges  of  citizens  inquire  into  and  report  upon  the  propriety 
ot  so  framing  the  Constitution,  as  to  prohibit  hereafter  the 
taking  of  private  property  for  the  benefit  of  corporations 
or  individuals. 

It  was  adopted. 

On  motion  of  Mr.  BROWN,  the  Convention 
adjourned  to  11  o'clock  to-morrow  morning. 

SATURDAY,  (18th  day)  June  20. 

Prayer  by  the  Rev.  Mr.  CAMPBELL. 

The  PRESIDENT  presented  a  report  from  the 
Register  in  Chancery,  in  answer  to  a  resolution 
of  the  Convention,  showing  the  number  of  bills 
filed  in  that  Court,  and  the  causes  on  the  calen- 
dar, during  the  years  1844  and  1845. 

On  the  motion  of  Mr.  CHATF1ELD,  the  pa- 
per was  referred  to  the  judiciary  committee. 
EQUALIZATION  OF  TAXATION. 

Mr.  MORRIS  offered  the  following  resolution  : 
&    .  No  citizen  can  by  any  means  be  compelled  to  con- 
tribute to  any  gift,  aid,  loan,  tax  or  imposition  or  other 
like  charge,  which  is  not  imposed  on  and  required  of  all 
other  citizens  irrespective  of  class,  calling  or  occupation. 

It  was  referred. 

THE  LOCALITY  OF  TAXATION. 

Mr.  MORRIS  also  offered  the  following  resolu- 
tion : 

&  .  Personal  property  used  or  invested  iu  trade,  busi- 
ness or  occupation,  shall  be  assessed  in  the  town  or  ward 
where  euch  trade,  business  or  occupation  is  conducted. 


119 


He  moved  its  reference  to  the  14th  committee, 
which  was  on  the  organization  and  powers  of 
cities  and  incorporated  villages,  and  especially 
their  power  of  taxation,  assessment,  borrowing 
money,  contracting  debt,  and  loaning  their  credit. 
Mr.  TAGGART  suggested  that  the  proposition 
belonged  more  properly  to  the  15th  committee. 
The  duties  of  that  committee  were  in  relation  to 
the  power  of  counties,  towns,  and  other  munici- 
pal corporations,  except  cities  and  incorporated 
villages,  and  especially  their  power  of  local  leg- 
islation, taxation,  assessment,  borrowing  money, 
and  collecting  debts. 

Mr.  MORRIS  had  no  choice  in  this  matter — 
his  only  desire  was  that  it  should  be  referred. 

Mr.  MURPHY  had  no  objection  to  the  refer- 
ence. The  object  of  the  resolution  was  sufficient- 
ly apparent,  and  expressed  in  direct  terms.  It 
was  the  opinion,  no  doubt  very  honestly  enter- 
tained by  the  mover,  that  residents  in  one  place 
doing  business  in  another,  should  be  assessed  in 
the  place  where  the  business  is  done,  for  their 
personal  property.  This  is  an  exceedingly  inter- 
esting question,  and  like  others  that  would  pro- 
bably come  before  the  Convention,  it  concerned 
more  particularly  two  cities  in  the  southern  part 
of  the  State.  He  had  no  objection  to  this  refer- 
ence, but  he  had  rather  it  should  go  to  some  com- 
mittee of  which  he  was  not  a  member. 

Mr.  MORRIS  begged  the  gentleman's  pardon. 
When  he  mentioned  the  committee  No.  14,  it  did 
not  occur  to  him  that  his  friend  from  Kings  (Mr. 
M.)  was  on  that  committee.  He  had  however,  ac- 
cepted the  suggestion  of  his  friend  on  his  left  that 
it  should  go  to  committee  No.  15,  prior  to  the  gen- 
tleman  from  KINGS',  rising  or  his  (Mr.  M's.)  dis- 
covering that  he  was  on  committee  No.  14.  The 
gentleman  was  right,  this  was  an  important  ques- 
tion— and  to  borrow  the  figure  or  reference  which 
the  gentleman  made  use  of  yesterday,  and  one  to 
which  we  could  all  refer — the  city  of  Albany,  was 
,an  instance  It  might  be  that  the  city  of  Albany 
might  have  an  immensely  heavy  business  transact 
ed  in  the  lower  part  of  the  city — and  the  gentle 
man  who  used  the  stores  of  Albany,  its  water 
lamps,  docks  &c.,  and  conducted  this  immensel) 
heavy  business  there,  might  live  over  the  river  a 
Greenbush,  and  therefore  pay  nothing  for  all  this 
He  was  happy  to  have  this  practical  instance — 
as  it  might  illustrate  the  necessity  of  the  propo 
sition  he  had  offered.  The  gentleman  from  King: 
was  mistaken  if  he  supposed  it  was  intended  t< 
tax  gentleman  who  live  in  Greenbush, — it  wa 
only  intended  that  their  property  in  Albany  shouL 
be  taxed  there.  That  the  property  used  in  Alba 
ny,  and  protected  by  its  municipal  laws,  shoul< 
contribute  to  the  support  of  those  laws,  leaving 
the  person  to  be  taxed  in  Greenbush  for  all  th 
property  he  might  own  there. 

Mr.  STETSON  wished  to  enquire  whether  th 
gentleman  intended  to  include  property  of  th 
country  that  might  be  there  on  commission  ?  Thi 
would  subject  the  whole  country  to  taxation,  fo 
the  benefit  of  the  city. 

Mr.  MORRIS  said,  that  would  be  for  the  con 
sideration  of  the  committee,  and  at  any  rate  woul 
afford  a  very  good  reason  for  a  report  against  th 
section. 

Mr.  BROWN  said  that  it  was  apparent  that  th 
subject  of  the  resolution  did  not  relate  to  commi 


e  No.  15.  Any  gentleman-who  would  take  the 
ouble  to  look  at  its  organization  and  the  subjects 
Dmmitted  to  its  action  would  see  that  this  had 
o  possible  connection  with  those  duties.  To 
ommittee  No.  15  is  committed  the  powers  of 
ounties,  towns,  and  other  municipal  corpora- 
ons,  except  cities  and  incorporated  villages,  and 
specially  their  power  of  local  legislation,  taxa- 
on,  assessment,  borrowing  money  and  contract- 
ng  debts.  If  the  subject  embraced  in  this  reso- 
ii  related  to  local  as  well  as  general  taxation, 
len  it  did  not  belong  to  committee  No.  15.  The 
ommittee  to  which  the  resolution  should  be  re- 
erred  was  No.  3.  That  is  where  it  should  go,  and 
e  was  the  more  anxious  that  it  should  take  that 
irection  from  the  fact  that  the  committee  No.  15 
ad  already  a  very  troublesome  task  before  them. 

Mr.  MORRIS  had  rro  objection  to  that. 

Mr.  RICHMOND  said  that  gentlemen  would 
iscover  if  they  looked  into  this  matter  that  it 
tad  nothing  at  all  to  do  with  committee  No.  3. 
^hat  committee  took  charge  of  the  subject  of  ca- 
lals,  internal  improvements,  public  revenue  and 
iroperty,  public  debt  and  the  powers  and  duties 
f  the  legislature  in  reference  thereto,  &c;  Now 
e  proposed  to  look  a  little  into  the  duties  of 
ommittee  No.  2.  That  committee  had  charge  of 
he  powers  and  duties  of  the  legislature  except 
is  to  matters  otherwise  referred.  That  was  the 
roper  committee  for  this  matter — as  to  the  mat- 
er of  taxing  property  and  as  to  where  it  should  be 
ocated— whether  in  Albany  or  Greenbush,  or  in 
York  or  Brooklyn.  It  was  a  matter  of  le- 
gislation— a  general  matter — having  reference  to 
he  whole  State,  and  the  resolution  was  a  general 
me  and  was  not  alone  of  special  reference  to  these 
cities—  there  was  nothing  of  the  kind.  If  he  un- 
derstood it,  it  proposed  that  personal  property 
hould  be  taxed  at  the  place  where  the  business 
was  done,  and  not  where  the  residence  was  lo- 

ated.  Cases  of  this  kind  occur  in  almost  every 
town  and  county  in  the  State,  and  it  was  therefore 
a  general  matter  appertaining  to  the  duties  of 
committee  No.  2.  It  certainly  did  not  belong  to 
committee  No.  3,  for  that  had  charge  of  the  great 
matter  of  State  debt  and  loans  of  its  credit,  &c. — 
matters  sufficiently  large  and  ftiportant  enough 
for  their  consideration.  It  was  never  constituted 
to  take  charge  of  such  a  matter  as  this. 

Mr.  MURPHY  concurred  in  the  views  taken 
of  this  matter  of  reference  by  the  gentleman  last 
up.  This  subject  no  more  belonged  to  No.  3, 
than  it  did  to  No.  15,  or  No.  14,  for  it  was  a  mat- 
ter of  general  interest.  Those  committees  refer 
to  particular  matters  in  the  Constitution.  No.  14, 
that  of  Municipal  Corporations — No.  15,  to  cer- 
tain other  than  municipal  Corporations,  and  No. 
3,  in  regard  to  our  general  internal  policy.  No. 
2  perfectly  embraces  the  subject.  It  is  truly  a 
subject  for  legislation,and  probably  did  not  belong 
to  this  body  at  all.  But  it  was  well  to  have  it 
considered  and  he  hoped  that  it  would  be  fully 
considered.  But  the  object  of  the  qpsolution  was 
to  change  a  principle  which  exists  in  all  govern- 
ments, both  in  civil  and  common  law — the  tax- 
ation of  personal  property  at  the  domicil  of  the 
owner.  This  seeks  to  change  the  invariable  rule 
that  taxation  is  levied  for  the  benefit  of  those  among 
whom  its  owner  resides.  He  hoped  it  would  be 
sent  to  a  committee  where  it  would  receive  full 


120 


examination.  For  years  the  Legislature  had  been 
besieged  by  the  city  of  New  York,  to  have  the  re- 
sidents of  Brooklyn  taxed — or  legislation  changed 
so  that  she  should  be  made  a  black  sheep  for 
New  York.  He  hoped  it  would  be  examined  by 
a  committee  that  would  give  it  full  consideration. 

Mr.  STETSON  was  sorry  to  see  the  direction 
which  this  reference  was  taking.  He  did  not 
Want  the  charge  of  the  subject,  and  he  would  sub- 
mit that  the  fair  construction  of  the  last  part  of 
the  subdivision  in  relation  to  committee  No.  2 — 
"  except  as  to  matters  otherwise  referred" — was 
that  every  other  committee  should  be  first  tried  be- 
fore any  attempt  was  made  to  give  it  to  his  custody. 
Again,  he  was  clearly  against  the  gentleman's 
proposition,  and  it  was  a  settled  parliamentary 
rule  that  all  references  should  take  a  direction 
somewhat,  at  least,  favorable  to  the  intention  of 
the  mover.  He  therefore  hoped  that  committee 
No.  2  would  not  be  burthened  with  its  conside- 
ration. 

Mr.  CHATFIELD  wished  to  make  a  disposi- 
tion of  this  torpedo  which  none  seemed  disposed 
to  touch.  Each  proposition  of  reference  had 
brought  some  member  of  the  committee  to  his  feet 
to  protest  against  it.  Now  he  would  move  that 
it  be  referred  to  a  select  committee  of  five,  at  the 
same  time  protesting  against  being  put  on  the 
committee.  [Laughter.] 

Mr.  LOOMIS  concurred  in  the  view  that  the 
proper  reference  was  to  a  select  committee.  On 
looking  over  the  list,  it  appeared  to  him  that 
there  was  no  one  more  than  another,  under 
whose  peculiar  powers  and  duties  this  resolution 
would  come.  And  he  would  refer  it  to  a  select 
committee,  more  particularly  after  the  expression 
of  the  gentleman  at  the  head  of  committee  No. 
2,  of  his  unfavorable  impression  as  to  the  object  of 
the  mover.  He  knew  nothing  of  the  relative  posi 
tions  of  Brooklyn  and  New  York  on  this  question, 
but  he  desired  to  express  this  suggestion.  He  saw 
no  good  reason  for  the  distinction  between  perso- 
nal and  real  estate.  Both  should  participate  alike. 
In  the  case  of  real  estate  the  taxation  is  always 
local  and  levied  where  it  is  situated  ;  and  he  saw 
no  reason  why  taxation  on  personal  estate  should 
not  be  liable  to  Ae  same  rule.  We  should  either 
bring  the  real  estate  under  the  same  rule  as  was 
applicable  to  personal,  or  the  personal  under  the 
same  as  applied  to  real  estate.  A  good  many 
difficulties  have  arisen  out  of  our  system  of  taxa- 
tion, and  the  adjustment  of  the  details.  The  sys- 
tem of  arbitrary  distinctions  between  real  and 
personal  property  were  derived  undoubtedly  from 
the  mother  country.  There  a  landholder  is  con- 
sidered of  more  importance  than  the  owner  of 
mere  personal  estate.  The  difficulties  there  in 
the  way  of  the  alienation  of  real  and  personal 
estate  do  not  exist  in  this  country.  And  with  us 
this  distinction  is  almost  abolished  in  its  prac- 
tice. We  have  some  remains  of  it,  it  is  true,  in 
the  requirements  of  the  formality  of  a  deed  in 
real  estate  transfers,  but  generally  the  spirit  of 
the  law  was  in  favor  of  transferring  one  as  well 
as  the  other.  His  impressions  were  in  favor  of 
the  proposition  for  a  select  committee  or  of  its 
converse,  and  this  seemed  to  him  the  best  of  the 
two. 

^  Mr.  PERKINS  said  that  if  it  was  desirable  en- 
tirely to  change  the  law  in  relation  to  assessments 


on  personal  property,  it^was  a  matter  which 
should  engage  the  very  serious  attention  of  this 
body.  He  apprehended  that  the  proposition  of 
the  gentleman  from  New- York  and  the  views  of 
the  gentleman  from  Herkimer,  were  impractica- 
ble, without  an  entire  change  in  the  system  of  the 
taxation  of  personal  property.  And  in  order  to  ar- 
rive at  any  views  thus  entertained  by  them,  we 
must  tax  all  personal  property  as  we  tax  real  estate, 
without  reference  to  any  distinction  on  account 
of  the  indebtedness  of  (.he  person  in  possession. 
As  the  law  now  exists  and  has  existed  since  the 
organization  of  our  government  a  person  is  only 
taxed  for  the  excess  of  his  personal  property  over 
and  above  all  indebtedness  If  the  proposition 
of  the  gentleman  from  New- York  prevails  how 
is  that  to  be  ascertained.  As  the  laws  exists,  if  a 
deduction  is  allowed  on  account  of  indebtedness, 
the  person  assessed  must  have  notice  given  him 
of  the  amount  of  his  taxation.  If  a  person  doing 
business  in  New- York  has  $100,000  of  personal 
property  there,  and  the  same  amount  in  Brooklyn, 
making  $200,000  in  all,  where  is  the  distinction 
of  the  $100,000  indebtedness  to  be  made — in  New 
York  or  Brooklyn  ? 

Mr.  LOOMIS:  Let  the  deduction  be  made  where 
he  desires. 

Mr.  PERKINS  said  that  if  the  deduction  was 
made  in  the  place  where  he  resided — although  he 
has  $100,000  personal  property  there — his  estate 
would  be  entirely  untaxed  where  his  business 
was  done ;  and  where  he  did  reside,  the  city  or 
town  could  derive  no  benefit  whatever  from  his 
wealth.  And  very  serious  questions  became  in- 
volved here,  as  the  result  necessarily  of  destroying 
the  distinctions  which  now  exist  between  real 
and  personal  property,  so  far  as  respects  indebt- 
edngss.  Whether  that  was  desirable,  and  wheth- 
er it  was  not  better  that  all  property  should  be 
taxed  without  reference  to  any  indebtedness,  and 
whether  that  would  not  operate  as  equally  upon 
all  classes  as  now,  was  a  new  and  serious  ques- 
tion, and  one,  he  apprehended,  upon  which  few 
members  in  this  Convention  could  give  an  opin- 
ion without  a  careful  examination. 

Mr.  VAN  SCHOONHOVEN  thought  it  unne- 
cessary that  a  special  committee  should  be  ap- 
pointed on  this  subject.  If  he  understood  the 
duties  of  the  committee  No.  11,  that  was  precise- 
ly the  reference  to  make  of  it.  That  committee 
takes  charge  of  the  rights  and  privileges  of  citi- 
zens of  the  State.  This  was  a  question  involv- 
ing the  rights  of  the  citizens  of  the  State  in  point 
of  taxation — whether  they  should  be  taxed  in  one 
place  or  in  another— for  instance,  in  New-York 
or  Brooklyn.  He  should  like  to  have  this  com- 
mittee, at  the  head  of  which  was  the  venerable 
gentleman  from  Dutchess,  (Mr.  TALLMADGE,) 
examine  this  subject,  and  have  the  benefit  of  that 
examination.  He  was  inclined  to  concur  with 
the  gentleman  from  Herkimer,  in  some  of  his 
views,  but  as  he  thought  the  subject  was  not 
strictly  before  the  Convention  on  a  motion  of  ref- 
erence, he  should  refrain  from  any  remarks  upon 
it. 

Mr.  BASCOM  hoped  no  special  committee 
would  be  raised  on  this  propsition.  It  would 
seem  to  the  observer  that  this  Convention  sup- 
posed itself  possessed  of  all  thd  wisdom  in  the 
land,  past,  present  and  prospective.  We  are  en- 


121 


tering  into  the  consideration  of  subjects  it  seemed 
to  him,  belonging,  exclusively  to  legislation,  and 
some  even  to  the  local  authorities  of  counties. — 
We  are  unnecessarily  consuming  time  in  these 
discussions — aud  if  we  give  importance  to  all 
these  matters  by  raising  select  committees  for 
their  consideration,  we  invite  a  thousand  similar 
propositions  for  the  reformation  of  the  State 
laws.  There  was  great  propriety  in  their  con- 
sideration, he  granted ;  but  it  belonged  to  a  leg- 
islative body.  He  hoped  therefore  that  conse- 
quence would  not  be  given  to  this  matter  by 
raising  a  select  committee,  but  that  it  would  be 
allowed  to  take  the  usual  reference.  He  cared 
not  to  which  committee  it  went. 

Mr.  SHEPARD  said  that  it  seemed  to  him  that 
the  course  of  reference  in  this  case  was  clear.  It 
could,  however,  not  be  made  to  any  one  commit- 
tee by  itself.  It  seemed  to  him  that  the  14th 
committee  had  charge  of  that  part  of  the  resolu- 
tion which  referred  to  the  powers  of  cities  and 
incorporated  villages  to  tax  and  assess.  He 
thought  there  could  be  no  doubt  of  that.  There 
was  then  a  considerable  part  of  the  resolution  not 
embraced  in  the  plan  of  reference,  and  that  he 
thought  would  probably  go  to  committee  No.  2, 
which  he  supposed  had  general  charge  of  matters 
of  taxation — or  to  No.  3.  It  struck  him,  there- 
fore, that  the  resolution  in  its  reference  should  be 
divided.  The  part  alluded  to  by  him,  to  No.  14 ; 
and  the  other  part  to  No.  2  or  3,  as  gentlemen 
might  think  in  regard  to  this  matter  of  taxation. 
Some  allusion  had  been  made  by  the  gentleman 
from  Kings,  (Mr.  MURPHY,)  to  the  substantial 
part  of  this  proposition,  to  its  merits.  Now,  upon 
that  subject,  as  one  of  the  representatives  of  the 
city  of  New  York,  he  felt  obliged  to  say  this. — 
Certainly,  no  greater  injustice  could  be  done  to 
such  a  corporation  as  the  city  of  New  York,  than 
by  permitting  citizens  of  Brooklyn  to  trade  there 
to  the  extent  of  i_.illions  of  dollars,  and  escape  the 
burthens  thaf  should  be  imposed  on  that  property. 
A  question  of  considerable  practical  inconve- 
nience also  arises — as  to  where  property  should 
be  taxed.  He  supposed  it  to  be  impossible  to  set- 
tle the  question  so  as  to  avoid  that  inconvenience, 
but  it  seemed  to  him  that  the  nearest  approxi- 
mation to  such  an  avoidance  of  the  difficulties,  was 
contained  in  the  proposition  of  his  colleague.  He 
therefore  hoped  that  the  reference  would  neither 
be  made  to  a  special  committee,  nor  to  any  of  the 
others  named  and  assented  to  by  his  colleague, 
but  that  it  would  be  made  as  he  suggested  in  the 
introductory  part  of  his  remarks — part  of  it  to 
committee  No.  14,  and  the  other  part,  he  would 
say  for  the  purpose  of  getting  the  sense  of  the 
convention  on  the  question,  to  committee  No.  2. 

Mr.  STRONG  confessed  that  he  had  been  some- 
what entertained  by  this  debate.  When  we  look- 
ed over  the  Speeches  made  by  the  gentlemen  from 
the  two  cities — the  contending  parties — it  would 
be  found  that  no  two  of  them  agreed.  He  believ- 
ed the  whole  matter  was  out  of  order — this  dis- 
cussing the  merits  of  a  resolution  merely  on  a  mo- 
tion of  reference.  Suppose  that  we  should  en- 
graft into  the  Constitution  all  these  propositions, 
what  kind  of  a  Constitution  would  we  have  ? — 
There  was  another  good  reason — and  that  was — 
we  should  not  engraft  on  the  Constitution,  that 
which  had  been  rejected  by  the  legislature,  who 

8 


had  full  power  to  grant  it.  He  had  seen  it  him- 
self when  he  had  been  here  before,  and  he  did  not 
.believe  that  our  time  was  well  taken  up,  or  that 
the  people  were  so  ignorant  as  to  the  laws  of  tax- 
ation, as  to  suppose  that  we  came  here  to  investi- 
gate that  matter  and  put  it  in  the  Constitution. 
Any  thing  that  touched  the  pockets  of  the  people 
they  understood  very  well.  These  were  matters 
that  they  looked  into,  and  they  wanted  no  propo- 
sition of  this  kind  in  the  Constitution.  There 
was  another  difficulty  to  a  considerable  extent : — 
to  what  committee  shall  the  subject  be  given,  and 
where  shall  one  be  found  favorable  to  it.  It  was 
an  old  rule  and  always  pretty  generally  adhered 
to,  that  we  should  not  put  the  child  to  nurse 
where  it  would  be  strangled.  No  committee  had 
as  yet  been  found  who  were  not  opposed  to  it — 
who  would  receive  the  nursling,  and  for  that  rea- 
son a  special  committee  was  asked  to  take 
charge  of  it.  He  was  opposed  to  referring  it  to 
any  committee  that  objected  to  it — it  would  be 
doing  injustice  to  the  subject  and  to  the  gentleman 
from  New- York,  so  to  refer  it.  He  should  vote — 
if  compelled  to  vote  at  all,  and  he  hoped  he  should 
not  be,  although  he  should  not  move  to  lay  the 
subject  on  the  table,  but  hoped  some  other  gen- 
tleman would — for  a  special  committee.  And 
while  up,  he  would  say,  that  he  hoped  he  would 
not  be  placed  on  the  "committee,  as  he  was  en- 
tirely opposed  to  the  proposition.  [Laughter.] 

The  question  was  then  taken  on  the  motion  to 
refer  the  resolution  to  committee  No.  3,  and  it 
was  rejected,  a  count  being  had,  ayes  42,  nays  43 

The  PRESIDENT  announced  the  question  now 
to  be  on  the  motion  of  the  gentleman  from  Rens- 
selaer,  (Mr.  VAN  SCHOONHOVEN,)  to  refer  to 
standing  committee'No.  11. 

Mr.  TALLMADGE  asked  to  have  the  resolu- 
tion read,  (it  was  read.)  Mr.  T.  had  two  views 
of  this  resolution.  He  was  not  entirely  suited 
with  the  resolution  as  it  stood.  In  the  first  place, 
the  resolution  as  it  stood,  sent  us  forth,  even  to 
our  newly  acquired  territory  on  the  Rio  Grande, 
and  to  the  world,as  having  agreed  to  the  proposi- 
tion. The  motion  therefore  should  be  made  so  as 
to  be  in  fact  one  only  of  reference.  On  the  other 
hand  neither  the  second  or  the  eleventh  committee 
was  the  proper  committee  to  take  charge  of  the  sub 
ject.  When  that  committee, (the  llth)was  created, 
he  had  not  supposed  that  it  was  to  be  a  commit- 
tee of  what  the  Romans,  in  their  law  Latin,  call- 
ed Omnium  gatherum.  He  had  not  the  least 
objection  to  it's  being  so  occupied  so  far  as  he 
was  concerned.  He  was  perfectly  willing  if  the 
Convention  thought  proper  to  do  so,  but  he  tho't 
it  expedient  then  to  alter  its  name.  If  it  was 
considered  a  glorious  privilege  to  be  taxed,  then 
of  course  it  should  go  to  the  committee  on  the 
rights  and  privileges  of  the  citizen.  But  he  tho't 
that  this  matter  should  go  to  the  delegation  from 
New  York  and  Kings — not  to  the  black  or  white 
sheep  alone — but  to  the  two  crows  to  take  it  and 
settle  it  together.  This  would  be  in  accordance 
with  the  rule  in  legislation,  that  all  kindred  sub- 
jects should  be  sent  to  a  kindred  committee — and 
if  there  was  no  standing  committee,  a  select  com- 
mittee should  be  raised  for  that  reason.  When 
any  gentleman  created  or  begot  a  doll,  he  ought 
to  be  permitted  to  dress  it  in  his  own  robes  and 
present  it  in  his  own  garniture.  And  all  nonde- 


122 


script  resolutions  of  this  sort  should  be  similarly 
disposed  of.  Having  suggested  this,  he  had  no 
hesitation  in  saying  that  it  ought  to  go  to — if  to 
any  standing  committee — to  No.  14.  Most  cer- 
tainly it  ought  not  to  be  sent  to  a  committee  on 
the  rights  and  privileges  of  citizens — unless  it 
was  to  be  considered  a  glorious  privilege  to  be 
taxed.  It  would  indeed  be  amplifying  the  privi- 
lege very  much  to  let  him  have  it  without  re- 
straint— and  to  tax  a  man  in  every  town  where 
he  happened  to  own  a  cow,  a  horse,  or  an  ox. — 
But  he  had  been  reproved  the  other  day  for  dis- 
cussing the  merits  of  a  proposition  on  a  motion  of 
reference,  as  had  been  done  all  this  morning,  and 
he  would  refrain  from  further  discussion.  He 
hoped  the  motion  to  refer  the  proposition  to 
a  committee  of  kindred  associations,  would 
prevail,  and  that  the  committee  on  the  rights 
and  privileges  of  citizens,  would  be  left  busy  to 
study  constitutional  law  in  order  to  secure  pro- 
tection to  the  citizens.  But  if  gentlemen  how- 
ever thought  it  the  proper  committee  for  this  sub- 
feet,  he  should  not  object  to  it.  The  committee 
would  endeavor  to  do  it  justice. 

Mr.  RHOADES  hoped  this  proposition  might 
go  to  a  select  committee.  Every  committee  nam- 
ed that  seemed  to  be  regarded  by  the  Convention 
as  in  any  way  appropriate  to  take  charge  of  it, 
seemed  disposed  not  to  take  it ;  to  say  hands  off. 
And  every  gentleman  who  had  spoken  had  pro- 
posed a  different  committee  before  he  sat  down, 
and  concluded  too  with  the  hope  that  he  would 
not  be  put  on  it.  He,  too,  was  going  to  propose 
a  select  committee  ;  and  he  was  going  to  say  an- 
other thing.  It  would  be  recollected  that  there 
was  a  time  when  the  citizens  of  New- York  oppo- 
sed those  works  of  Internal  improvement  in  our 
State,  which  had  added  so  much  to  the  wealth  of 
that  city — or  at  least  came  tardily  to  their  sup- 
port. Now  they  seemed  disposed  to  tax  the  pro- 
perty of  every  man  who  happened  to  be  in  their 
city,  transacting  business.  He  wished,  briefly  to 
say  to  the  gentleman  from  New- York,  that  the 
time  may  come  when  business  men  may  recollect 
—out  of  the  State  as  well  as  in  it — that  there  are 
such  places  as  Boston,  as  Philadelphia,  as  Mon- 
treal, and  as  New-Orleans.  And  that  the  time 
may  come  when  this  trade  might  be  diverted  to 
these  cities.  He  would  not  say  any  thing  more 
about  that.  He  esteemed,  highly,  the  honorable 
gentleman  and  his  colleagues,  and  as  far  as  he 
was  acquainted  with  the  business  men  of  the  city, 
they  were  honorable  men — enlarged  and  liberal 
in  their  views,  but  he  hoped  that  the  city  of  New- 
York  would  not  be  found  standing  out  against  its 
own  interests.  He  should  prefer  that  the  propo- 
sition should  be  referred  to  a  select  committee, 
composed  of  the  delegates  from  the  city  and  coun- 
ty of  New-York. 

Mr.  MORRIS  said  a  delegate  from  the  city 
of  New-York  might  be  excused,  if  he  should  offer 
thanks  to  the  gentleman  for  selecting  that  delega- 
tion for  the  consideration  of  this  proposition,  were 
it  not  for  the  previous  part  of  his  speech — which 
was  to  inform  us  gentleman  from  New  York  that 
there  was  a  Boston,  a  New  Orleans  and  a  Mon- 
treal. As  though  the  holding  up  before  our  faces 
of  such  places,  was  to  frighten  us  all  out  of  our 
sense  of  propriety,  as  the  threatened  flagellation 
to  the  school  boy — and  that  frightened  thereat,  we 


were  immediately  to  retreat  from  any  honest 
conviction  we  might  h^ve  of  an  important  prin- 
ciple. Now  although  a  delegate  from  the  city  and 
county  of  New  York,  and  he  thanked  God  from 
the  State  of  New  York — he  had  yet  to  see — 
or  rather  his  memory  had  yet  to  return  back  to 
the  first  instance  where  local  feeling  perverted 
or  destroyed  his  sense  of  what  was  due  to  the 
whole.  He  introduced  the  proposition  from  an 
honest,  thorough  conviction  that  it  was  just  in 
itself,  without  any  reference  to  any  locality,  or 
the  residence  of  any  individual  whose  property 
might  be  taxed — and  as  equally  important  to  eve- 
ry locality  in  the  State.  Now,  as  matters  now 
stand,  he  found  himself  something  in  the  position 
of  the  man  who  went  to  a  certain  village  to  sell  a 
fox  skin.  He  tried  all  over  to  sell  it  but  could 
find  no  purchaser.  He  then  tried  to  give  it  away, 
but  no  man  would  have  it.  At  last  he  tried  to 
lose  it— and  accordingly  he  dropped  it  carefully 
and  ran.  But  immediately  he  heard  the  halloo  of 
— "  Mister,  mister,  you've  lost  your  skin"  [laugh- 
ter.] The  poor  fellow  thew  up  his  hands  in  des- 
Eair.  He  had  tried  to  sell  it  and  could  not — he 
ad  tried  to  give  it  away,  but  could  not— then  he 
tried  to  lose  it,  but  in  that  even  was  he  defeated. 
(Renewed  laughter.)  Now  he  (Mr.  M.)  had  tried 
— not  exactly  to  sell  it — but  to  place  it  in  such  a 
position,  that  those  now  opposed  to  it  might  re- 
ceive it,  and  after  a  thorough  examination  wake 
up  to  the  justice  of  his  proposition.  That 
would  be  called  a  sale.  Then  he  tried  to  give 
it  away.  He  had  assented  to  all  and  every  sug- 
gestion as  to  where  it  should  go — and  each  and  all 
repudiated  it,  and  would  not  touch  it.  He  there- 
fore would  ask  to  have  it  referred  to  a  select  com- 
mittee, and  he  believed  that  under  parliamentary 
rule,  the  member  who  made  the  motion,  is  made 
the  chairman  of  the  committee.  He  did  this  open- 
ly and  would  not  shrink  from  the  responsibility 
of  examining  this  question,  and  placing  it  before 
the  public  on  its  merits.  If  he  was  wrong  on  the 
merits,  he  knew  there  was  wisdom  and  firmness 
in  the  house  to  put  him  down.  He  would  not  at- 
tempt to  designate  the  committee,  all  he  desired 
was  that  intelligent  men  should  be  placed  upon 
it.  He  wished  his  learned  friend  from  Rensselaer 
(Mr.  V.  S.)  would  oblige  him  so  much  as  to  with- 
draw his  motion. 

Mr.  VAN  SCHOONHOVEN  cheerfully  with- 
drew it,  and 

Mr.  SHEPARD  also  withdrew  his. 

Mr.  CHATFIELD  said  that  he  believed  this 
motion  to  raise  a  select  committee  was  his  pro- 
position. [Laughter.]  He  did  not  wish  to  take 
from  his  friend  from  New  York  the  honor  of  be- 
ing chairman  of  it,  however,  and  he  distinctly 
stated  when  he  made  the  motion,  that  he  did  not 
desire  to  be  put  upon  the  committee  at  all.  Still, 
according  to  parliamentary  usage,  jt  would  belong 
to  him.  Perhaps  he  could  give  his  reasons  for 
not  desiring  to  be  on  the  committee,  and  it  would 
be  only  extending  the  fox  skin  story  to  its  con- 
clusion*. The  fellow,  after  his  repeated  failure 
to  get  rid  of  his  skin,  as  a  last  resort,  said  he  would 
take  it  to  Rhode  Island,  where  they  would  steal 
it  from  him.  [Laughter.]  Now,  he  thought  if 
the  gentleman  would  take  his  proposition  over  to 
Brooklyn,  they  would  steal  it  fiiem  him,  and  he 
could  thus  dispose  of  it.  [Laughter.] 


123 


Mr.  RHOADES  said  this  was  not  the  first  time 
he  had  heard  this  fox  story.  It  had  occurred  to 
him  that  his  friend  was  about  to  lose  his  fox  skin, 
and  it  was  for  that  reason  he  proposed  to  refer  it 
to  a  select  committee.  The  gentleman  from  New 
York  had  spoken  of  the  attempt  he  (Mr.  R.)  had 
made  to  frighten  the  citizens  of  New  York  and 
its  members  in  Convention  from  their  position. — 
He  had  not  intended  any  such  thing.  Ho  was  led 
into  the  train  of  remark  which  nad  thus  been 
construed,  not  by  what  fell  from  the  gentlemen 
from  New  York,  but  from  what  his  friend  from 
Kings  (Mr.  MURPHY,)  had  said.  He  was  led  to  be- 
that  the  object  was  to  tax  the  inhabitants  of 
Brooklyn  doing  business  in  New  York.  And  al- 
though the  gentleman  from  New  York,  did  not 
name  that  city,  but  referred  to  Albany,  and  asked 
if  people  were  to  come  and  enjoy  its  pavements, 
its  streets,  its  docks,  its  wharves,  its  lights,  its 
police,  &c.,  and  not  pay  for  it — it  was  from  those 
remarks  that  he,  (Mr.  R.)  supposed  that  he  in- 
tended to  illustrate  and  state  the  condition  of  the 
people  of  the  city  of  New  York.  Then  he  (Mr. 
R  )  had  brought  up  the  subject  of  its  opposition 
to  the  great  works  of  internal  improvement, 
which  had  done  so  much  for  it,  and  had  felt  at 
liberty  to  suggest  the  idea  that  business  people 
might  learn  that  there  were  other  places  where 
they  could  do  their  business, — and  that  if  they 
were  to  suffer — in  addition  to  the  opposition  on 
the  part  of  New  York  to  measures  they  deemed 
of  vital  importance — themselves  to  be  taxed  for 
the  purpose  of  using  the  pavements,  gas  lights, 
of  that  city,  they  might  feel  disposed  to  trade  else- 
where. It  was  for  this  reason  that  he  felt  inclin- 
ed to  admonish  him,  of  the  feeling  which  had  be- 
gun, at  least,  to  pervade  the  minds  of  our  trading 
population. 

Mr.  MURPHY  had  no  objection  to  the  refer- 
ence to  a  select  committee,  indeed  he  desired  that 
might  go  there,  if,  as  he  remarked  before,  the 
Convention  should  deem  it  a  matter  of  sufficient 
importance  to  engage  their  attention.  And  in  the 
few  remarks  he  had  submitted  he  had  attempted 
to  confine  his  attention  to  the  subject  of  refer- 
ence. But  in  the  course  of  the  debate  we  have 
been  amused,  by  the  gentleman  from  New- York, 
who  had  told  us  a  very  interesting  Joe  Miller, 
which  story  had  been  taken  up  and  finished  by  the 
gentleman  from  Otsego,  (Mr.  CHATFIELD).  Now 
he  thought  the  gentleman  from  Otsego  was  a  lit- 
tle too  fast.  The  gentleman  from  New- York  was 
not  disposed  to  lose  his  proposition — he  wished 
to  take  it.  And  he  (Mr.  M.)  hoped  he  would 
take  it  where  Brooklyn  would  have  no  opportunity 
to  steal  it.  Nor  did  Brooklyn  ask  to  be  placed  in 
the  category  with  stealing  Rhode  Island. 

Mr.  WATERBURY  said  this  was  a  serious  and 
a  difficult  question.  The  Legislature  had  for 
years  been  petitioned  on  the  subject, — for  there 
was  not  a  county  in  the  state  where  a  similar 
condition  of  things  did  not  exist  as  had  been  re- 
ferred to.  The  question  was  whether  the  taxa- 
tion should  be  levied  in  the  town  of  a  county,  or 
in  its  centre,  where  all  the  capital  was  drawn, 
.and  it  was  one  not  to  be  trifled  with.  He  hoped 
herefore,  it  would  have  a  candid  and  careful  ex- 
amination, not  with  reference  to  a  particular  lo- 
cality ,but  to  i^  effect  on  the  State  at  large. 


The  question  was  then  taken  on  the  motion  to 
refer  to  a  select  committee,  and  it  prevailed. 

PROVIDING  THE  OFFICERS  WITH  NEWSPAPERS 
Mr.  CHATFIELD  had  a  resolution  to  offer 
which  concerned  the  business  of  the  Convention 
and  the  convenience  of  the  secretaries.  They 
informed  him  that  they  found  it  extremely  con- 
venient in  making  up  the  journal,  instead  of  in- 
serting the  propositions  to  be  entered,  in  the 
original  manuscripts  or  by  copying,  to  transfer 
the  printed  copies  which  they  found  reported 
with  the  debates  in  the  daily  papers  of  the  city 
— they  occupying  less  space,  and  being  correct 
copies.  He  offered,  therefore,  the  following  : — 

Resolved,  That  the  resolution  heretofore  adopted,  pro- 
viding lor  supplying  members  with  newspapers,  be  and 
the  same  is  hereby  extended  so  as  to  include  the  secreta- 
ries of  the  convention. 

The  resolution  was  adopted. 

THE  SEPARATION  OF  BANK  AND  STATE, 
Mr.  CONELY  offered  the  following  resolution: 
Resolved,  That  it  be  referred  to  the  third  standing  com- 
mittee to  enquire  into  the  expediency  of  making  provision 
in  the  constitution  that  nothing  shall  be  received  in  pay- 
ment oi  dues  by  this  government  except,  gold  and  silver 
coin,  and  such  evidences  of  debt  as  are   secured  by  bonds 
of  this  state,  and   are  issued  by  institutions  which  do  not 

issue  such  evidences  of  a  lower  denomination  than 

amount. 

Mr.  RICHMOND  said  it  was  very  evident  that 
committee  No.  3  was  not  a  currency  committee, 
or  one  to  say  in  what  kind  of  funds  the  debts  owing 
to  the  government  should  be  paid,  or  any  thing 
of  the  kind.  Its  duties  were  only  in  reference  to 
the  great  questions  of  State  credit  and  State  debts. 
That  was  what  it  was  constituted  for.  We  have 
at  least  three  more  committees  far  more  proper 
to  refer  it  to  than  No.  3.  He  was  almost 
afraid  to  designate  one  lest  he  should  alarm  the 
feelings  of  some  gentlemen  on  the  committees, 
and  induce  them  to  vote  it  on  to  his,  (Mr.  R.'s) 
committee,  however  wrong  it  might  be  to  put  it 
there,  in  order  to  get  rid  of  it  themselves.  He 
would  not  suggest  to  what  committee  it  should 
go,  but  gentlemen  could  see  for  themselves,  that 
it  had  no  affinity  with  the  duties  of  committee 
No.  3.  That  was  not  raised  to  say  in  what  kind 
of  funds  the  business  of  the  government  was 
transacted  in,  or  what  kind  is  paid  or  received 
for  its  indebtedness. 

Mr.  CONELY  was  indifferent  to  what  commit- 
tee it  went  to.  The  3rd  committee  was  on  pub- 
lic revenue — and  this  resolution  referred  to  the 
subject.  He  should  not  object  however  to  its 
going  to  the  16th  committee. 

Mr.  SHEPARD  hoped  it  would  not  take  that 
reference.  It  was  a  question  of  the  collection  of 
the  revenue,  whether  it  should  be  in  gold  or  sil- 
ver coin,  bank  paper  or  bank  paper  only  of  a  cer- 
tain denomination.  It  most  clearly  then  ought  to 
go  to  the  committee  on  the  public  revenue — the 
3rd.  What  the  State  should  take  as  between  it- 
self and  its  debtors,  in  its  dealings,  the  bank  com- 
mittee had  nothing  to  consider.  It  did  not  come 
at  all  within  their  purview.  He  hoped  there- 
fore the  matter  would  be  referred  to  the  3rd 
standing  committee. 

<  Mr.  CAMBRELENG  said  that  substantially 
the  same  proposition  in  another  form  had  been 
referred  already  to  committee  No.  3,  and  it  wa 


124 


proper  therefore  that  this  should  take  the  some 
direction. 

Mr.  RICHMOND  said  that  if  a  proposition  of 
this  kind  had  been  already  referred  it  was  not  ne- 
cessa-ry  then  to  refer  this.  While  up  he  would 
take  the  occasion  to  say,  that  if  we  were  to  have 
questions  of  this  kind  daily,  the  committees  would 
have  more  than  they  could  attend  to,  and  while 
he  was  in  favor  of  a  full  and  free  reference  of  all 
propositions,  still  he  would  say  that  this  question 
was  one  of  a  nature  not  belonging  to  committee 
No.  3.  Indeed  he  hardly  knew  where  it  did  be- 
long, and  he  thought  there  should  be  a  select 
committee  on  the  Sub-Treasury.  He  did  not  say 
this  because  he  wished  to  be  chairman  of  such 
committee.  He  was  not  anxious  for  such  an  hon- 
or, but  there  were  gentlemen  who  were,and  whom 
he  knew  would  be  gratified  to  examine  into  and 
make  a  report  on  the  subject. 

Mr.  SHEPARD  said  he  had  introduced  himself 
the  proposition  which  was  referred  to '  the  com- 
mittee, and  it  only  varied  in  two  particulars  from 
the  one  now  under  consideration.  The  particu 
lars  are  these :  The  resolution  provides  that  bank 
notes  above  a  certain  amount  may  be  taken — or  at 
all  events  whether  they  may  or  may  not  be  taken 
is  proposed  to  be  considered,  and,  secondly,  whe- 
ther State  stocks  shall  or  shall  not  be  taken.  The 
3rd  branch  is,  as  stated  by  the  gentleman  from 
Suffolk,  already  referred.  If  this  is  referred  now 
to  a  special  committee,  then  we  shall  have  two 
reports  presented  upon  precisely  the  same  subject 
matter.  Now  he  hoped  the  reference  would  be 
made  according  to  the  expressed  wish  of  the 
mover,  for  it  was  drawn  in  that  direction  by  the 
nature  of  the  resolution,  even  if  not  in  express 
terms. 

Mr  TOWNSEND  hoped  that  the  views  of  his 
friend  last  up,  would  be  sustained  by  the  Conven- 
tion. This  undoubtedly  was  a  question  involv- 
ing the  safety  of  the  public  revenues,  and  a  mat- 
ter devolving  on  committee  No.  3.  And  to  them 
properly  belonged  the  question  as  to  how  the  re- 
venues were  to  be  managed — and  it  would  be  sin- 
gular if  that  committee,  at  the  present  day  and 
period — whether  it  was  directly  referred  to  them 
or  not— when  the  subject  was  mooted  throughout 
the  State,  and  in  view  of  the  losses  sustained  by 
the  deposits  in  broken  institutions,and  the  recep- 
tion of  broken  promises  to  pay,  should  not  consi- 
der the  question,  of  what  should  be  evidences  of 
debt.  He  had  the  honor  to  be  on  the  Bank  Com- 
mittee himself,  and  had  no  objection  to  taking 
the  responsibility  of  action  upon  it,  if  this  Con- 
vention thought  fit  to  send  it  there ;  but  his  indi- 
vidual opinion  was,  that  the  Banking  Committee 
had  sufficient  to  do  already.  There  had  been  a 
great  deal  too  much  said  and  done  already.  The 
great  error  had  been  in  the  outset,  in  the  depar- 
ture from  the  standard  of  gold  and  silver,  and  un- 
dertaking to  facilitate  transfers  of  large  amounts, 
instead  of  leaving  them  to  be  made  in  such  form 
as  individuals  might  chose.  He  hoped  that  it 
would  take  the  direction  desired  by  the  original 
mover. 

Mr.  CONELY  was  satisfied  that  it  should  go 
to  the  3d  committee,  as  it  was  a  question  of  reve- 
nue purely. 

Mr.  PERKINS  moved  to  amend  by  striking  out 
the  3d  and  inserting  the  2d  committee.  It  ap- 


peared to  him  a  very  proper  question  for  that 
committee  to  consider,  whether  the  legislature 
should  for  all  time  be  deprived  of  the  power  of 
regulating  the  reception  and  disbursement  of  pub- 
lic money.  The  proposition  is  to  take  away  from 
the  legislature  the  power  of  regulating  from  time 
to  time,  as  the  exigencies  of  the  times  and  business 
may  require,  the  mode  of  collecting  and  disbur- 
sing the  public  revenues.  The  duties  of  commit- 
tee No.  2  were  the  powers  and  duties  of  the  leg- 
islature, except  as  to  matters  otherwise  referred. 
The  powers  and  duties  of  the  legislature  embrace 
the  matter  of  keeping,  disposing  and  disbursing  of 
the  public  funds,  and  the  proposition  was  to  de- 
prive them  of  that  and  engraft  it  into  the  Consti- 
tution as  a  matter  of  constitutional  law.  That 
was  what  a  committee  was  to  enquire  into. 

Mr.  STETSON  did  not  wish  to  oppose  any  ap- 
propriate or  just  reference  to  a  committee  of  which 
he  was  a  member,  but  with  due -respect  to  his 
friend  from  St.  Lawrence,  he  could  not  see  the 
propriety  of  the  reference  he  proposed.  In  one 
respect  these  resolutions  concerned  banking  and 
the  currency,  and  in  another  the  revenue.  It  be- 
longed mainly  to  that  department.  General 
legislation,  it  was  true,  would  include  this,  and 
in  the  absence  of  all  specific  directions,  it 
would  either  hate  been  more  properly  divided 
among  the  three,  or  given  to  all  of  them.  He  did 
not  wish  either,  by  a  premature  disclosure  of  opi- 
nions on  any  question,  to  get  rid  of  any  subject  the 
convention  might  feel  disposed  to  refer  to  his 
committee,  but  it  was  proper  that  he  should  re- 
mark now  that  his  own  opinion  was  in  favor  of 
an  Independent  Treasury  system  for  the  nation, 
and  that  he  had  been  so  from  its  origin.  With- 
out wishing  to  discuss  the  question  prematurely, 
however,  he  would  go  farther,  and  say  that  he 
saw  a  very  distinct  difference  between  a  Sub-trea- 
sury for  the  State,  and  for  the  nation.  The  Go- 
vernment of  the  United  States  was  the  great  mo- 
ney dealer  of  the  country,  and  its  specie  clause 
reached  and  affected  every  locality.  And  he 
hoped  that  if  this  proposition  was  referred  to  him, 
that  the  mover  of  it  would  make  an  argument  to 
convince  him  that  its  introduction  into  the  con- 
stitution would  not  produce  locally  the  same  ef- 
fect as  what  was  called  the  small-bill  law — that 
is,  of  making  this  State  the  ground  for  the  circula- 
tion of  other  States,  without  accomplishing  the 
great  object  of  reform  gentlemen  had  in  view. 
Such  object,  it  seemed  to  him,  would  be  bet- 
ter accomplished  at  Washington  than  here. 

The  PRESIDENT  reminded  gentlemen  that 
the  merits  of  the  resolution  were  not  under  dis- 
cussion, under  the  motion  to  refer. 

Mr.  PERKINS  said  that  the  gentleman  at  the 
head  of  committee  No.  2,  (Mr.  STETSON)  had  not. 
answered  the  suggestion  he  (Mr.  P.)  had  made, 
that  this  resolution  principally  involved  the  ques- 
tion as  to  wrhether  this  matter  was  to  be  left  to  le- 
gislation as  the  exigencies  of  the  case  might  re- 
quire, or  whether  it  was  to  be  engrafted  on  the 
constitution  as  constitutional  law.  And  for  that 
reason  he  had  spoken  of  it  as  belonging  appropri- 
ately to  committee  No.  2. 

Mr.  STETSON  said  that  the  gentleman  would 
by  his  reasoning  make  committe%No.  2,  a  supervi- 
sory one  over  all  of  the  others — to  determine 
what  were  proper  subjects  for  Constitutional  limi- 


]25 


tation.  Each  committee  should  determine  this 
question  for  itself.  It  was  the  residue  of  matters 
not  referred  to  other  committees  that  were  refer- 
red to  No.  2. 

Mr.  PERKINS  said  that  this  subject  had  not 
been  referred  to  any  committee,  for  if  it  had  this 
debate  would  not  have  arisen.  Therefore  this 
subject  was  not  referred,  and  it  was  a  matter  of 
question  between  legislation  and  Constitutional 
law. 

Mr.  PATTERSON  had  supposed  that  on  a  mere 
question  of  reference  the  merits  of  the  matter  to 
be  referred  was  not  debateable.  He  had  suppos- 
ed that  to  be  the  settled  parliamentary  law,  but 
from  what  had  taken  place  here  he  had  about 
come  to  the  conclusion  that  a  different  rule  was  to 
be  adopted.  He  saw  that  in  that,  he  might  have 
been  mistaken,  because  the  Chair  had  indicated 
after  the  gentleman  from  Clinton  had  got  thro' 
with  his  remarks,  that  the  merits  of  the  resolution 
were  not  debateable.  Therefore  he  should  not 
attempt  to  debate  it,  but  it  was  in  order  he  would 
say  that  he  did  not  understand  this  matter  as  the 
gentleman  from  Clinton  did,and  if  permitted  and  it 
was  in  order,  he  would  say  that  if  it  was  right  for 
the  Nation,  it  was  equally  right  for  the  State. — 
In  the  matter  of  referring  it,  it  ought  not  to  be  sent 
to  any  committee  that  would  be  a  dry  nurse  to  it. 
Gentlemen  on  committees  had,what  to  him  seem- 
ed very  extraordinary,  declared  that  they  would 
report  against  it  if  sent  to  them,  tit  least  that  was 
the  fair  inference  to  be  drawn  from  their  remarks. 
He  would  not  send  it  to  such  a  committee,  but  to 
one  that  would  give  it  a  fair  investigation, 
examination,  and  consideration.  And  when 
they  have  so  considered  it,  if  they  agree  in 
opinion  with  the  gentleman  on  his  right, 
(Mr.  SHEPARD)  and  the  one  over  the  way, 
(Mr.  COXELY)  thatHhe  sub-treasury  with  the 
specie  clause,  is  right  for  the  State,  let  us 
have  the  proposition  before  us.  He,  for  one, 
desired  to  discuss  that  principle,  and  he  did  not 
know  how  he  was  to  get  at  it  unless  it  was  refer- 
red to  the  New-York  delegation.  He  was  appre- 
hensive that  if  it  was  referred  to  the  country  de- 
legates, there  would  be  found  to  be  a  great  deal  of 
flinching  on  the  subject.  Therefore  he  would 
send  it  to  such  a  committee  as  would  give  it  a  fa- 
vorable report,  and  if  the  gentleman  who  offered 
the  resolution  would  indicate  what  committee  he 
desired  to  have  it  sent  to,  he  would  vote  to  sus- 
tain him. 

Mr.  CONELY  preferred  committee  No.  3. 

Mr.  RICHMOND  could  not  promise,  as'one  of 
the  committee,  to  make  a  favorable  report. 

Mr.  HUNTER  was  on  that  committee,  but  was 
not  willing  to  commit  himself  on  the  question. 
THE  TAKING  OF  PERSONAL  PROPERTY. 

Mr.  JONES  offered  the  following  resolution,  as 
he  said,  in  behalf  of  his  colleague,  Mr.  VACHE  : 

Resolved,  That  it  be  referred  to  the  eleventh  standing 
committee  to  consider  the  necessity  of  providing  that 
whenever  private  property  shall  be  taken  lor  public  us«, 
and  the  compensation  therefor  shall  not  be  payable  direct 
ly  irom  the  public  treasury  of  the  State,  or  of  some  coun- 
ty, city,  town  or  village,  the  amount  of  compensation  so 
to  I  e  made,  shall  be  assessed  by  jury  in  some  court  of  gene- 
ral jurisdiction,  or  the  principal  court  of  the  county  or 
larger  judicial  division  oi  the  State,  in  which  the  lanjs  to 
be  taken  may  lie,  in  the  same  manner  and  with  the. like 
right  of  review  as  to  questions  arising  on  such  assessment 
as  is  or  may  be  allowed  by  law  in  civil  actions. 


It  was  adopted. 

JUDGES  ELECTIVE  BY  THE  PEOPLE. 

Mr.  W.  TAYLOR  offered  the  following  reso- 
lution : 

Resolved,  That  it  be  referred  to  the  committee  on  the 
udiciary  to  enquire  into  the  expediency  of  making  the 
,uJges  of  the  supreme  court,  elective  by  the  people  for  a 
:erm  of  six  years,  and  re-eligible  without  limitation  as  to 
age-  after  then  st  election  the  judges  to  be  divided  into 
three  classesj  the  seats  of  the  first  class  to  be  vacated  at 
the  end  of  two  years,  the  seats  of  the  second  to  be  vacated 
at  the  end  of  four  years,  and  the  seats  ol'  the  third  class  to 
be  vacated  at  the  end  of  six  years. 

It  was  adopted. 

THE  QUALIFICATIONS  OF  VOTERS. 
Mr.  SHAVER  offered  the  following  resolution  : 
Resolved,  That  it  be  referred  to  the  fourth  standing  com- 
mittee to  enquire  into  the  propriety  of  so  amending  the 
Constitution  as  to  require- 

1.  That  every  naturalized  citizen,  to  be  entitled  to  vote, 
shall  have  resided  in  the  State  six  months  after  he  shall 
txave  become  naturalized. 

2.  That  citizens  coming  into  this  State  shall  be  entitled 
to  vote  after  they  have  resided  in  the  State  six  months. 

3.  That  no  person  shall  be  entitled  to  vote  who  shall  not 
aave  resided  thirty  days  in  the  town  or  ward  where  he 
shall  offer  to  vote. 

It  was  adopted. 

CHANCERY  SALES,  &c. 

Mr.  TAGGART  offered  the  following  : 

Resolved,  That  the  Secretaries  of  the  Convention  ad- 
dress  to  the  Register,  Assistant  Register  and  Clerks  of  the 
Court  of  Chancery  respectively  the  following  inquiries: — 

1st.  How  many  applications  for  the  sale  of  infant's  real 
estates  were  made  in  such  court  during  the  year  1845 1 

2d.  What  was  the  aggregate  value  of  the  real  estate  of 
infants  sold  by  order  of  such  court  during  said  year  1845, 
and  what  was  the  value  of  such  estate  in  each  case  respec- 

3d.  What  was  the  average  amount  of  costs  taxed  and 
allowed  for  conducting  such  sales? 

4th.  What  is  the  whole  amount  of  moneys  now  in  or  un- 
der the  control  of  said  court  belonging  to  infants  which  is 
not  invested? 

5th.  What  is  the  whole  amount  of  commissions  retained 
by  such  Register,  Assistant  Register  or  Clerks  from  the 
proceeds  of  the  sales  of  infants  real  estate  made  in  the  year 
1845,  for  investing  or  paying  out  such  proceeds  or  for  any 
other  cause? 

7th.  What  is  the  whole  amount  of  moneys  now  in  or  un- 
der the  control  such  court,  invested  or  not  invested,  be- 
longing to  unknown  owners  of  real  estate,  sold  by  order 
of  such  court? 

8th.  What  is  the  whole  amount  of  moneys  now  in  or 
under  the  control  of  such  court  invested  for  the  use  of 
widows,  or  the  interest  upon  which  is  payable  to  them, 
upon  dower  or  other  rights  by  order  or  decree  of  such 
court? 

9th.  What  is  the  whole  amount  of  money  snow  in  or  un- 
der the  control  of  such  court,  belonging  to  widows  upon 
dower  or  other  rights,  which  is  not  yet  invested? 

Mr.  LOOMIS  said  that  in  addition  to  the  above, 
there  was  another  enquiry  that  he  would  like 
to  have  made  of  the  Register  in  Chancery,  for  in- 
formation which  had  not  been  spread  before  the 
public  for  several  years.  He  had  understood  that 
very  large  sums  of  money  were  now  under  the  care 
of  the  Court  of  Chancery,  paid  in  by  different  es- 
tates on  behalf  of  infants  and  others,  and  some  of 
which  had  remained  there  for  a  great  length  of 
time.  Several  years  since,  he  understood,  it 
amounted  to  over  $2,000,000.  He  might  be 
wrong,  but  it  seemed  to  him  that  was  about  the 
amount  stated.  He  did  not  know  that  any  special 
action  of  the  Convention  was  necessary  on  this 
subject,  but  it  seemed  to  him  that  as  the  business 
of  the  Court  was  to  be  the  subject  of  examination 
it  would  be  proper  to  obtain  the  information 


126 


which  he  desired.     He  could  accomplish  this  by 
adding  to  the  resolution  the  following : 

Also,  a  statement  showing  the  amount  of  funds  deposited 
in  the  court  of  chancery  in  each  year  for  25  years  past,  the 
amount  paid  out  in  each  year,  the  rate  of  interest  at  which 
said  funds  are  invested,  whether  any  part  or  not  is  on  in- 
terest, and  if  any,  how  long. 

Mr.  TAGGART  thought  that  this  proposition 
would  embarrass  his  resolution  very  much.  It 
would  require  an  extension  of  the  time  to  make 
these  enquiries,  and  thus  the  benefits  of  the  an- 
swer would  be  lost  to  the  Convention.  He  hoped 
the  gentleman  would  withdraw  his  amendment, 
and  offer  it  hereafter  as  a  separate  proposition. 

Mr.  LOOMIS  had  no  objection. 

The  resolution  was  then  adopted. 

THE  FUNDS  IN  CHANCERY. 

Mr.  RHOADES  said  that  he  had  a  resolution 
which  had  particular  reference  to  the  funds  in  the 
Courts  of  Chancery,  and  as  it  was  talked  of  abo- 
lishing this  court  in  its  present  form,  it  might  be 
desirable  that  something  should  be  known  of  the 
aggregate  amount  of  the  monies  deposited  in  that 
court,  without  reference  to  \vhom  they  belonged. 

Mr.  R.  offered  the  following  : — 
Resolved,  That  the  Chancellor  of  this  State  be  request- 
ed to  furnish  to  this  convention  the  aggregate   amount  of 
all  the  funds  in  the  Court  of  Chancery,  (and  subject  to  the 
order  and  control  thereof,)  on  the  first  day  of  June,  1846 


funds    deposited   in 


as  follows: 

1.    The  aggregate   amount  of  all 
oanks. 


2.  The  aggregate  amount  deposited  in  all  trust  compa- 
nies. 

3.  The  aggregate  amount  vested  in  bond  and  mortgage. 

4.  All  other  funds,  if  any,  under  the  control  and  ordercf 
said  Court. 

He  would  enquire  of  the  gentleman  from  Gen- 
esee  (Mr.  TAGGART)  if  his  resolution  embraced 
these  enquiries. 

Mr.  TAGGART  said  it  did  not. 


this  resolution,  and  he  lioped  therefore  that  the 
mover  would  allow  it  to  lay  on  the  table  for  the 
present. 

Mr.  RHOADES   assented,  and  the  resolution 
was  so  disposed  of. 
THE  ARRANGEMENT  OF  THE  AMENDMENTS. 

Mr.  MORRIS  said  he  had  a  couple  of  resolu- 
tions which  he  would  send  up  on  this  explanation. 
He  had  desired  yesterday  to  go  into  committee  of 
the  whole  on  the  Article  which  he  had  reported 
in  relation  to  the  powers  and  duties  of  the  gover- 
nor and  lieutenant  governor,  for  the  purpose  of 
making  some  alteration  in  the  phraseology,  and 
to  correct  some  errors  which  had  crept  in,  in  co- 
pying. On  conversing  with  members  of  the  Con- 
vention, he  found  a  diversity  of  opinion  as  to 
whether  the  manner  of  reporting  should  be  that 
adopted  by  the  committee,  or  not  ;  and  as  other 
committees  were  soon  to  report,  it  was  deemed 
most  prudent  to  have  that  question  settled  now, 
so  that  if  the  committee  to  which  he  belonged, 
had  erred  in  the  form  of  their  report,  they  might 
take  it  back  and  conform  it  to  the  directions  of  the 
Convention  ;  or,  if  the  Convention  should  think 
the  committee  had  pursued  the  correct  manner  of 
doing  it,  that  other  committees  might  follow  the 
example.  His  first  resolution  -,  if  adopted,  would 
sanction  the  manner  in  which  his  committee  had 
reported.  He  would  read  it  r  — 

committees  be  and  they 
suggestions  for  a 


Resolved,  That  the  standing  commi 
e  hereby    directed  to  embody  their 


are  hereby 

Constitution  in  their  reports,  in  articles  and  sections,  that 
they  copy  into  such  articles  the  sections  of  the  Constitu- 
tion applicable  thereto  to  which  they  do  not  propose 
amendments  or  alterations,  and  in  such  sections  as  they 
propese  to  amend  and  alter,  they  shall  incorpoiate  such 
amendments  and  alterations. 


Mr.  M.  said  that  to  make  himself  understood, 
if  he  had  not  done  so  already,  he  would  state  that 
his  plan,  on  taking  up  an  article  of  the  Constitu- 
Mr.  WORDEN  would  suggest  to  his  friend  from   tion  was,  that  such  sections  as  the  committee  did 
Onondaga,  that  he  allow  his  resolution  to  lay  on   not  propose  to  alter,  they  copied  into  the  propos- 
the  table  until  Monday,  for  he  (Mr.  W.)  thought  e(i    article    for    the    new     Constitution.      Such 
it  was  not  sufficiently  comprehensive.  He  thought  i  other    sections    as   did    not    conform    to    what 
that  in  relation  to  the  amount  of  money  loaned  or   thev   intended  the  new  Constitution  to  be,  they 

i  "-A  -  J     '    _    i 1_        -       j_  A  _    •      _      j.1 . 1..  _.*'         -  j        -i-         j  i         •  i '  /»   _  Ji    _l 


deposited  in  banks  or  trust  companies,  the  resolu- 
tion wrould  not  draw  forth  the  desired  informa- 
tion. He  had  understood  that  there  was  a  large 
amount  of  funds  under  the  control  of  the  Court  of 
Chancery,  so  entrusted  to  incorporations—not 
loaned  to  them,  strictly  speaking,  or  deposited; 
and  he  would  be  glad  to  see  in  the  resolution 
some  language  that  would  draw  out  informa- 
tion on  this  subject.  There  was  another  subject 
of  enquiry  he  would  like  to  see  included.  The 
Court  of  Chancery  had  from  time  to  time  been  re- 
ceiving what  is  called  fines,  and  he  was  informed 
that  a  very  large  amount  of  these  fines,  were  now 
and  had  been  for  years  returned  by  that -court, 
and  he  was  not  sufficiently  advised  to  say  wheth- 
er by  authority  of  law  or  against  the  provision  of 
law.  He  had  always  supposed  however  that  fines 
imposed  and  collected  by  a  Court  belonged  to  the 
people,  and  should  go  into  the  public  treasury. 
He  had  understood  that  the  fines  or  a  portion  of 
them  imposed  and  collected  by  the  Court  of  Chan- 
cery, had  not  received  that  direction,  but  were 
retained  in  some  way,  and  appropriated  in  some 
other  manner — of  that  particular  way  and  man- 
ner he  was  ignorant,  and  had  not  been  able  to  as- 
certain. He  desired  to  embrace  this  enquiry  in 


altered  and-  presented  in  their  modified  shape. — 
Thereby  the  committee  supposed  the  members  of 
the  Convention  would  be  better  able  to  judge  of 
all  parts  of  the  article,  and  the  propriety  of  the 
amendment.  He  would  state  also,  that  as  there 
was  no  difference  in  the  printing  of  the  report,, 
they  were  compelled  to  go  to  the  present  Consti- 
tution, ajid  to  examine  it  to  know  what  were  and 
what  were  not  amendments.  To  provide  for  this 
for  the  future,  he  proposed  to  submit  a  resolution, 
by  the  adoption  of  which  form  they  would  have 
all  the  parts  of  the  Constitution  before  them,  and 
see  what  were  and  what  were  not  amendments. 

The  resolution  was  as  follows  : 

Resolved,  That  the  reports  of  standing  committees  shall 
be  printed  under  the  direction  of  their  respective  chairman,, 
and  that  all  alterations  and.amendments  shall  be  printed  in 
italics. 

Mr.  KIRKLAND  said  that  a  very  important 
and  material  partof  our  duties  were  involved  in 
the  resolution  now  presented.  The  act  under 
which  we  were  assembled,  contemplated  amend- 
ments to  the  existing  constitution.  By  looking 
at  section  9  of  the  Convention  act,  it  would  be 
perceived  in  the  first  place,  that  the  Convention, 
was  assembled  for  the  purpose  of  considering  the 


127 


constitution  and  to  make  such  alterations  therein 
as  they  might  deem  necessary.  Such  amendments 
were  to  be  recorded  in  the  office  of  the  Secretary 
of  State,  and  then  submitted  to  the  people  for 
adoption  or  rejection,  separately,  unless  the  Con- 
vention should  declare  that  it  was  impracticable 
to  submit  them.  Now,  although  he  did  not  stand 
there  to  find  fault  with  the  committee  which  had 
reported  the  article  spoken  of,  yet  he  would  re- 
mark that  if  that  mode  of  reporting  was  adopted, 
we  should  have  beyond  all  doubt,  an  entirely  new 
constitution  reported,  and  no  amendments  speci- 
fically to  the  existing  constitution.  The  report  of 
the  fifth  committee  proposed  an  article  contain- 
ing 1,  2,  3  and  4  sections  and  perhaps  more,  of 
article  3  ot  the  existing  constitution,  without 
even  a  verbal  alteration,  Then  in  another  part 
the  report  contained  section  13  of  article  4  of  the 
existing  constitution  without  material  amend- 
ment. They  had  also  reported  article  1st,  sec- 
tion 12th  with  some  amendment.  The  Conven- 
tion would  therefore  perceive  that  in  this  report 
we  had  presented  to  us  what  might  very  properly 
form  a  specific  part  of  an  entirely  new  Constitu- 
tion and  not  as  presented,  either  in  the  form  or 
substance  of  amendments  to  the  existing  Consti- 
tution. He  apprehended  the  mode  adopted  by  that 
committee  would  require  every  other  committee 
however  unnecessary  it  might  be,  to  amend  any 
article  submitted  to  them.  He  knew  not  the 
views  of  the  committee  on  the  militia,  but  if  this 
course  was  adopted,  and  the  committee  should  be 
of  opinion  that  no  amendment  was  required,  they 
would  nevertheless  be  compelled  to  report  word 
for  word  the  article  or  sections  on  that  subject  in 
the  existing  Constitution.  And  the  consequence 
of  this  would  be,  that  we  should  have  reported  by 
way  of  amendments,  for  the  accptance  or  rejec- 
tion of  the  people,  various  and  perhaps  whole  ar- 
ticles of  the  existing  Constitution,  on  which  the 
people  nei'her  expected  nor  desired  to  be  called 
upon  to  vote,  and  th«y  would  have  a  book  much 
larger  than  they  had  anticipated.  Now  looking 
upon  the  amendments  which  had  been  heretofore 
been  voted  upon  and  adopted  by  the  people  of  the 
state,  he  found  they  were  in  the  following  form  : 
— at  the  end  of  section  10  article  4  of  the  Consti- 
tution, add  the  following  words,  "  except  in 
the  city  of  New- York,"  &c. — which  was  the  form 
of  the  amendment  by  which  the  election  of  Mayor 
of  New-York  was  given  to  the  people  of  that  city. 
But  the  mode  adopted  by  the  fifth  committee 
as  he  had  before  observed,  was  one  which  beyond 
all  doubt,  if  approved  by  the  Convention,  would 
require  all  the  committees  to  make  like  reports 
to  this  body,  although  they  might  report  existing 
provisions,  word  for  word,  comma  for  comma,  p^e- 
riod  for  period.  It  seemed  to'him,  though  he  was 
not  prepared  to  say  what  should  be  the  mode  pur- 
sued by  the  committee,  that  this  was  a  matter  of 
importance  as  to  a  material  part  of  our  business 
here,  and  inasmuch  as  this  was  new  matter,  pre- 
sented here  this  morning,  he  should  wish  to  have 
it  referred  to  a  committee  to  report  to  the  course 
to  be  pursued  in  order  that  some  uniform  rule 
might  be  adopted.  He  had  no  doubt  that  com- 
mittee No.  5  would  be  willing  to  undertake  that 
duty.  And  it  was  desirable  perhaps  that  they 
should  do  it,  as  they  were  the  first  committee  to 


eport,  and  might  establish  very  readily  th'e  rule 
icreafter  to  be  published. 

Mr.  WARD  said  he  was  gratified  with  the  re- 
port alluded  to,  as  it  was  presented.  His  own 
mpression  was  the  committee  had  adopted  the 
correct  mode.  It  would  probably  have  been  better 
t' the  report  had  been  printed  in  the  manner  pro- 
posed by  the  second  resolution.  No  matter  what 
night  be  the  report  of  a  committee  here,any  gentle- 
man might  rise  in  his  place  and  propose  other  a- 
iH-iulments  to  the  article.  Certainly  it  may  be  that 
the  committee  have  not  reported  all  the  amend- 
ments that  would  be  desired  by  the  Convention. 
Need  he  call  attention  to  one  point  in  particular, 
so  far  as  the  executive  of  the  State  was  concerned. 
3y  the  present  Constitution,  and  as  reported,  that 
officer  is  chosen  every  two  years.  Now  he  had 
leard  gentlemen  say  that  they  intended  to  offer  a 
Droposition  that  his  election  should  be  annually. 
Slow,  as  the  report  contained  the  present  consti- 
tutional provision,  with  the  amendments  of  the 
committee — when  that  was  taken  up  in  commit- 
tee of  the  whole,  the  first  question  would  be  on 
the  amendments  proposed  by  the  committee  ;  and 
after  they  had  been  considered  and  passed  upon, 
any  gentlemen  might  rise  up  and  propose  other 
amendments  to  the  same  Article.  He  said  there- 
ibre  that  the  report  of  the  committee  was  in  the 
:orrect  form,  but  it  would  have  been  more  ad- 
visable he  granted,  if  the  report  had  been  so 
printed  that  we  could  distinctly  have  seen  the 
amendment  proposed.  The  gentleman  from 
Oneida  (Mr.  KIRKLAND)  had  said  that  there 
were  some  provisions  in  this  report  which  were 
not  proposed  to  be  altered,  and  which  therefore  it 
was  unnecessary  to  submit  to  the  people.  But 
were  we  now  in  a  condition  to  say  what  shape 
this  article  would  finally  assume,  or  in  what  shape 
amendments  should  be  submitted  to  the  people  ? 
When  we  had  gone  through  all  the  articles  of  the 
Constitution,  and  had  disposed  of  all  the  proposed 
amendments,  that  would  be  the  proper  time  to 
say  how  they  should  be  submitted  to  the  people, 
and  then  a'committee  could  present  a  plan.  He 
therefore  humbly  conceived  that  as  one  of  the 
members  of  the  Convention  he  had  some  rights 
as  well  as  the  committee,  and  he  could  not  under- 
standingly  propose  any  amendments  he  might  de- 
sire unless  he  had  the  whole  subject  of  the  Con- 
stitution before  him.  He  had  no  objection  for 
one  to  have  this  matter  referred  back  to  the  com- 
mittee, that  they  might  report  the  various  articles 
in  the  Constitutton  as  they  now  are,  and  with 
amendments,  and  in  that  form  go  into  committee 
of  the  whole  upon  them  and  amend  or  reject  them. 
But  still  nothing  would  be  gained  by  it  as  the  sub- 
ject would  be  still  open,  and  gentlemen  be  at  lib- 
erty to  propose  other  and  further  amendments. 

Mr  KIRKLAND  said  that  beyond  all  doubt, 
under  any  mode  which  might  be  adopted,  gentle- 
men would  be  authorized  in  proposing  any 
amendment  they  might  desire,  but  the  Conven- 
tion would  find  it  exceedingly  important,  he  ap- 
prehended, to  have  some  fixed  permanent  rule  to 
go  by — some  model  report.  He  had  not  himself 
found  one,  nor  did  he  rise  to  discuss  the  merits  of 
this  resolution,  but  rather  to  call  the  attention 
of  the  Convention  to  the  proper  course  to  be 
adopted.  He  wished  to  ask  its  reference  to  some 
committee  who  would  carefully  consider  rt,  ami 


128 


then  form  and  submit  to  our  consideration  what 
might  be  called  a  model  report,  and  which,  if  it 
met  our  approbation,  would  secure  an  unifor- 
mity in  the  reports  of  the  committees.  He 
trusted  it  would  have  a  reference  to  some  com- 
mittee. 

Mr.  BROWN  thought  the  resolution  ought  not 
to  be  adopted  now.  Certainly  it  was  of  sufficent. 
consequence  to  entitle  it  to  an  opportunity  for  de- 
liberation and  reflection.  It  proposed  to  pre- 
scribe a  mode  of  proceeding  which  should  gov- 
ern our  committees  in  reporting  to  the  Conven- 
tion. Now  he  apprehended  that  gentlemen  com- 
posing the  several  committees  had  thought  very 
little  upon  this  subject.  There  was  but  one  com- 
mittee out  of  all  the  15  or  10,  who  had  reported 
as  yet,  and  they  had  undoubtedly  adopted  the 
mode  of  arranging  it  which  pleased  them  best, 
and  was  most  appropriate,  in  their  estimation. — 
He  submitted  whether  it  was  not  due  to  the  other 
committees,  to  let  them  examine  the  subjects  com 
mitted  to  them,  and  let  them  see  what  is  the  best 
form  to  submit  to  the  Convention  the  result  of 
their  deliberations. 

Mr.  MORRIS  said  he  had  introduced  this  reso- 
lution at  the  suggestion  of  other  gentlemen — in- 
stead of  going  into  committee  of  the  whole — 
for  the  purpose  of  eliciting  opinions  as  to  the 
propriety  of  a  uniform  system  of  reporting.  He 
was  not  desirous  himself  of  pressing  any  par- 
ticular plan,  and  was  willing  to  let  the  resolu- 
tion lie  on  the  table,  so  that  it  might  be  examined. 

Mr.  BROWN  desired  to  make  one  remark  in 
continuation.  It  occurred  to  him  when  this  re- 
port came  in,  that  it  did  not  come  exactly  in  the 
form  to  command  his  approbation,  He  confessed 
he  had  some  difficulty  in  understanding  in  what 
particular  it  was  proposed  to  amend  the  article 
committed  to  them.  And  he  could  only  ascertain 
it  by  a  critical  comparison  of  their  amendments 
with  the  constitution  itself.  But  not  to  enlarge 
on  this  subject — for  if  the  resolution  was  laid  on 
the  table,  he  should  be  content — he  would  only 
say  that  all  these  reported  amendments  should 
come  before  us  in  a  mode  so  simple  that  we  could 
understand  them  the  moment  we  laid  eyes  on 
them — at  all  events,  that  it  should  not  be  neces- 
sary to  take  theix  reports  to  our  rooms,  and  enter 
into  a  critical  comparison  of  the  report  with  the 
constitution.  It  was  due  to  ourselves  and  the 
the  people  at  large,  that  we  should  adopt,  if  prac- 
ticable, some  mode  of  reporting,  which  should  be 
simple,  plain  and  intelligible.  At  the  same  time 
time  it  occurred  to  him  that  the  committees  them- 
selves would  best  be  able  to  say  in  what  form 
their  reports  should  be  submitted  -and  that  we 
had  better  postpone  the  subject  until  we  saw  what 
progress  the  committees  made,  and  knew  and  un- 
derstood in  what  particulars  the  fundamental  law 
was  proposed  to  be  changed. 

NEW-YOBK  COURT  OF  ARBITRATION. 

Mr.  STEPHENS  offered  the  following  resolu- 
tion, which  was  adopted: — 

Resolved,  That  it  be  rc-feired  to  the  committee  on  the 
judiciary  to  inquire  into  tne  expediency  oi  constructing  a 
court  for  the  city  of  New  York,  upon  the  principl.s  laid 
down  in  the  Revised  Statutes,  vol.  2,  part  3,  chap  8,  title 
15,  article  "  Arbitration." 

Said  court  to  be  entitled  the  "  Arbitration  Court  in  and 
for  the  city  and  ctunty  of  New  York;"  to  consist  of  a 
chief  justice  of  the  degree  of  counsellor  at  law,  two  asso- 


ciate justices,  not  members  of  the  legal  profession,  to  be 
elected  by  the  people,  to  holdtheir  offices  for  five  years  ; 
to  have  cognizance  of  all  matters  in  controversy  between 
all  persons  who  may  bind  themselves  to  submit  to  its  de- 
cisions, and  not  to  appeal  therefrom  ;  to  have  a  clerk  at  a 
fixed  salary,  to  prepare  bonds  of  submission,  and  to  enter 
up  judgments. 

On  motion  of  Mr.  CLYDE,  the  Convention 
then 
Adjourned  to  11  o'clock  on  Monday  morning. 

MONDAY,  (19th  day)  June  22. 

Prayer  by  the  Rev.  Mr.  CLAPP. 

Mr.  GARDNER  presented  a  memorial  from  the 
Chiefs  and  Head  Warriors  of  the  Tuscarora  In- 
dians, praying  that  the  Convention  would  not  dis- 
turb their  present  political  privileges. 

Mr.  STRONG  moved  that  the  memorial  be 
printed.  It  was  agreed  to. 

Returns  were  announced  as  having  been  receiv- 
ed from  the  Clerks  of  the  2d  and  3d  Chancery 
Courts,  in  answer  to  the  resolution  of  the  Con- 
vention. 

The  PRESIDENT  .announced  the  following  as 
the  select  committee  on  the  resolutions  of  Mr. 
MORRIS,  in  relation  to  the  locality  of  taxation, 
viz:  Messrs.  MURPHY,  LOOMIS,  PERKINS  and 
VACHE. 
EXEMPTION  OF  PROPERTY  FROM  EXECUTION. 

Mr.  TOWNSEND  proposed  the  following, 
which  was  adopted  : 

Resolved,  That  the  committee  upon  the  rights  and  priv 
ileges  of  the  peopled  this  State,  enquire  into  the  proprie 
ty  of  fixing  a  Constitutional  limit  to  the  amount  of  real  and 
personal  property,  that  it  shall  be  the  privilege  of  a  citizen 
of  this  state  to  hold,  exempt  from  execution  for  debt,  con- 
tracted subsequently  to  the  first  day  of  January  next. 
THE  DEBT  CREATING  PO^ER  OF  THE  LEGIS- 
LATURE. 

Mr.  WATERBURY  proposed  the  following, 
which  was  adopted  : 

Resolved,  That  it  be  referred  to  the  third  standing  com- 
mittee to  enquire  into  and  report  on  the  expediency  ot  incor- 
porating into  the  Constitution  a  provision,  that  every  law 
authorizing  the  borrowing  of  money,  or  the  issuing  of 
state  stock,  whereby  a  debt  shall  be  created  or  increased 
on  the  credit  of  the  state,  shall  specify  the  object  for 
which  the  money  shall  be  appropriated;  and  that  every 
such  law  shall  embrace  no  more  than  one  such  object, 
which  shall  be  single  and  specifically  stated;  and  that  no 
such  law  shall  lake  effect  until  it  shall  be  distinctly  sub- 
mitted to  the  people  at  the  next  general  election,  and  be  ap- 
proved by  a  majority  of  the  votes  cast  for  and  against  it  at 
such  election;  that  all  money  to  be  raised  by  the  authority 
of  such  law  to  be  applied  to  the  specific  object  stated  in 
such  law,  and  to  no  other  purpose  M  hattver,  except  the 
paympnt  of  the  debt  thereby  created  and  increased.  This 
provision  shall  not  extend  or  apply  to  any  law  to  raise  mo- 
ney for  the  purpose  of  suppressing  insurrection,  repelling 
a  hostile  invasion,  or  defending  the  state  in  war. 
THE  SCHOOL  MONEYS. 

Mr.  A.  HUNTINGTON  offered  the  following, 
which  was  adopted  :  • 

Resolved.  That  the  Secretary  of  State  be  requested  to 
report  to  this  Convention,  if  any,  what  towns  have  been  re. 
fused  their  distributive  shares  of  the  proceeds  of  the  com- 
mon school  fund,  for  Don-  conformity  with  the  requisitions 
of  the  law  regulating  the  distribution  thereof. 

THE  TAXATION  OF  MORTGAGES. 

Mr.  STRONG  offered  the  following  : 

Resolved,  That  there  be  in  the  Constitution  an  article 
ontaining  in  substance  the  following  provisions:—  That 
ll 


containng 

all  bonds,  mortgages,  judgments  and  all  other  evidences  of 
debt  which  are  liens  on  real  estate,  shall  not  be  taxed  as  per- 
sonal propertj  ;  and  that  all  real  estate  shall  be  taxed  to  the 
owner  or  occupant  at  its  fair  value;  and  that  any  person 


129 


•  bond,  mortgage,  judg 
ni<-nt,  or  any  other  evidence  of"  indebtedness  which  ai 
liens  on  real  estate,  shall  be  liable  to  the  person  or  }>en?oi 
to  whom  the  same  shall  have  lem  taxed  for  his,  her,  o 
their  portion  of  said  tax  in  proportion  to  the  interest  he 
she  or  they  may  have,  hold  or  own  in  said  real  estate. 

Mr.  STRONG  said  the  object  of  this  was  t 
prevent  double  taxation,  and  to  reach  a  larg 
amount  of  personal  property  now  hid  from  th 
assessor.  If  a  man  owned  a  farm  worth  - 
on  which  there  was  a  mortgage  of  $4000,  h 
would  be  compelled  to  pay  taxes  on  the  whol 
amount,  while  the  man  holding  the  $4000  mort 
gage  would  not  pay  a  cent  if  he  could  conceal  hi 
mortgage  from  the  assessor.  His  propositio 
would  equalize  this  taxation.  He  knew  it  woul 
meet  with  opposition,  and  that  men  who  wer 
making  princely  fortunes  out  of  lending  money  i 
this  way  would  fiercely  oppose  it.  But  if  it  wa 
just,  he  was  willing  to  stand  by  it.  It  might  b 
said  that  this  was  a  business  for  legislation.  Pas 
experience  taught  otherwise.  The  present  lav» 
had  stood  for  he  did  not  know  how  many  years 
Property  was  now  doubly  taxed  with  no  othe 
reason  than  because  it  was  the  law.  This  was  ; 
disgrace  to  the  State.  Had  past  legislation  reme 
died  this  evil  ?  We  had  seen  that  it  had  not. — 
He  had  drawn  his  resolution  in  this  form  because 
he  wanted  a  direct  expression  of  the  Convention 
He  wanted  the  views  of  members.  He  hopec 
there  would  be  no  delicacy  on  this  subject,  but  i 
gentlemen  wanted  a  reference  after  a  discussion, 
he  should  not  object.  He  was  not  afraid  to  stanc 
on  his  vote  in  favor  of  this,  here  or  before  the 
world. 

Mr.  CHATFIELD  said  that  this  did  not  seem 
to  be  a  resolution  of  reference,  but  a  direct  pro- 
position to  amend  the  Constitution.  He  did  no 
believe  the  Convention  were  prepared  to  discuss 
so  important  a  proposition  to-day,  and  he  woulc 
suggest,  therefore,  that  it  be  laid  on  the  table. 

Mr.  STRONG  had  no  objection  to  its  being  laid 
on  the  tabk,  although  he  should  take  an  early  op- 
portunity to  call  it  up.  He  desired,  also,  that  it 
should  be  printed. 

This  was  agreed  to,  and  the  resolution  laid  on 
the  table. 

REPORTS  OF   COMMITTEES— HOW  TO  BE  MADE 

Mr.  RUSSELL  moved  a  reconsideration  of  the 
vote  by  which  the  Convention  declared  it  to  be 
inexpedient  for  the  committees  to  make  written 
reports. 

Mr.  R.  was  proceeding,  when 

Mr.  PATTERSON  rose  to  a  point  of  order.— 
The  question,  he  said,  might  as  well  be  settled 
now  as  at  any  future  time.  He  wished  to  know 
if  a  call  for  the  consideration  of  a  resolution  was 
a  debateable  question. 

Some  conversation  here  ensued  between  Messrs 
PATTERSON,  RUSSEL,  STETSON,  and  MAR- 
VIN—when  Mr.  P.  withdrew  his  point  of  order. 

Mr.  RUSSELL  said  that  it  was  not  his  design 
to  inflict  a  speech  on  the  Convention,  on  this  sub- 
ject; but  it  did  appear  to  him  that  when  this  re- 
solution, of  which  a  reconsideration  was  now 
moved,  was  adopted,  from  the  very  brief  consi- 
deration given  it,  and  from  the  thin  house  present, 
it  was  unadvisedly  so  adopted ;  and,  as  he  thought, 
would  be  found  to  interfere  with  the  exercise  of 
the  duties  of  members  in  the  Convention.  It  ap- 


peared to  him  that  there  were  many  members 
who  could  not,  or  Would  not,  rise  up  and  state 
their  reasons  for  concurring  in  the  report  of  a 
committee,  where  they  could  only  be  addressed 
orally  to  the  house,  and  so  taken  down  by  the 
reporters,    rapidly  as    they  must  be.     At    the 
same  time  these  gentlemen  were  competent  very 
greatly  to  enlighten  us  in  our  deliberations,  and  be 
of  vast  service  to  us,  in  presenting  to  us  compila- 
tions of  statistics  and  facts  of  great  value  to  the  Con- 
vention.    For,  he  desired  that  when  these  propo- 
sitions were  reported  to  us,  that  the  Convention 
should  be  furnished  with  the  strongest  and  best 
arguments,  and  the  references  that  are  made  to 
other  documents  and  constitutions,  in  support  of 
them.     He  desired  them  in  preference  to  speech- 
es ;  for  he  could  ta"ke  the  written  report  to   his 
room,  and  give  it  that  examination  which  no  man 
could  give  a  mere  speech  ;  and  study  its  argments, 
and  see  if  he  could  be  brought  to  the  same  con- 
clusion.    He  could  then  compare  it  with  his  own 
knowledge,  and  the  results  of  his  own  experi- 
ence, and  if  there  was  an  open  point  in  the  argu- 
ments, he  could  better    answer  it  by    having    it 
before  him,  than  by  listening  to  the  chairman  of 
a  committee  closing  the  debate   by  an  eloquent, 
powerful  argument,  so  irresistible  as  to  carry  by 
mere  excitement  the    proposition.       Members', 
like  himself,  who  neither  made  reports  or  speech- 
es, would  also  be  benefitted  by  well  written  and 
digested  reports.     It  was  probable  that  many  of 
the  committees  would  not  desire  to  make  such 
reports — perhaps  the  most  important,  the  judi- 
ciary committee,  would  not.      But  there  were 
other  committees  from  whom  it    was  desirable 
to  have  written  reports.      The  one  that  he  was 
upon — the    Bank   committee — the    chairman  of 
which,  with    his   experience  of  40   years,   was 
able  to  give  us  a  digested  report  of  great  va- 
and  interest.     But  he  or  no  other  man  could 
do  so,   orally  upon  this  floor,  unless  the  written 
report  should  be  in  the  shape  of  a  speech,  read, 
and  published  by  the  reporters  as  such      It  would 
)e  a  written  report  nevertheless,  and  would  only 
)e  a  thing  called  by  a  wrong  name.     There  were 
some  who  would  have  no  fear  in  doing  this,  of 
laving  their  names  put  in  small  letters  instead  of 
capitals,  as  was  the  case  with  many  papers  in 
some  instances,  when  gentlemen  read  their  argu- 
ment, but  there  were  those  who  felt  a  reluctance 
about  adopting  such  a  course.     It  would  perhaps 
>e   a  saving  in  printing,  but  it  would  add  also 
much  to  the  consumption  of  time.     It  would  take 
much  longer  to  hear  the  speeches  read  in  slow 
measured  language,  than  if  it  was  a  written  re- 
>ort,  which  would  be  printed  and  which  we 
ould  take  to  our  rooms.     It  would  also  have  the 
fleet  of  drawing  out  the  talent,  the  industry  and 
bility  of  members  much  more  efficiently,  than 
ould  be 'done  by  confining  the  defence  of  their 
iositions  to  oral  arguments  on  the  floor.     There 
vere  many  like  himself,  who  were  not  so  indus- 
ious  as  to  give  all  the  time  due  to  the  examina- 
ion  and  consideration  of  subjects  which  might 
ome  before  them,  even  so  far  as  their  own  com- 
nittees    weia    concerned,    unless    their    atten-    ' 
on  was   called  particularly    to  it.     If  it    was 
etermined    that    the    conclusions    of    a    com- 
littee  should  be  accompanied  by  a  statement  of 
acts    in    writing,    for    which     each     member 


130 


of  it  would  be  responsible,  unless  he  openly  dis- 
sented therefrom,  the  report  would  be  most  care- 
fully examined,  and  every  paragraph,  even,  care- 
fully scrutinized.  He  had  not  intended  to  re- 
mark at  the  length  he  had  ;  all  he  designed  was 
to  show  the  real  importance  of  this  question.  He 
should  not  press  a  division  now,  although  he 
thought  since  he  had  given  the  notice  of  his  in- 
tention to  move  a  reconsideration  of  this  vote,  a 
sufficiently  long  time  had  elapsed  to  turn  the  at- 
tention of  every  member  to  the  subject. 

^  Mr.  RICHMOND  said  that  the  gentleman  had 
given  somewhat  of  a  lengthy  statement  in  regard 
to  this  matter,  and  had  advanced  some  ideas  which 
would  seem  to  carry  conviction  with  them.  He 
said  also  at  the  close  of  his  speech  (and  he  Mr. 
R.  might  as  well  begin  there)  that  he  had  made 
this  motion  some  days  previous,  in  order  that 
members  might  have  an  opportunity  to  weigh 
and  consider  this  important  matter,  in  the  hope 
that  thereby  they  might  come  to  a  different  con- 
clusion, from  what  they  had  in  originally  adopt- 
ing the  resolution.  As  had  been  suggested  by 
him,  they  had  considered  on  the  proposition,  and 
there  had  been  a  good  deal  of  out  door  talk  about 
it,  and  he  himself  had  been  spoken  to  by  a  large 
number  about  it.  The  argument  used  to  him  to 
induce  a  reversal  of  the  vote,  was  that  it  was  im- 
portant to  give  to  those  who  were  not  in  the  habit 
of  public  speaking,  and  who  addressed  the  house 
with  a  great  deal  of  diffidence,  and  as  the  gentle- 
man from  Monroe  (Mr.  STRONG)  would  say — he 
was  troubled  somewhat  that  way  himself — an  op- 
portunity to  express  themselves.  But  he  had 
heard  but  one  member  of  that  class  who  had  asked 
or  expressed  a  desire  to  have  the  resolution  re- 
versed ;  and  he  had  heard  at  least  a  dozen  gen- 
tlemen who  were  in  the  habit  of  getting  up  here 
and  making  long  speeches,  pleading  the  impor- 
tance that  the  lay  members,  those  excellent  com- 
mon sense  members,  as  they  termed  them — should 
have  an  opportunity  of  getting  their  views  before 
the  Convention,  and  the  public.  But  judging 
from  the  arguments  used,  it  seemed  only  to  arise 
from  a  desire  on  their  part  to  get  their  own  views 
twice  before  the  Convention  and  the  people.  They 
being  at  the  head  of  the  most  important  commit- 
tees, could  get  up  a  long  and  labored  report  to 
fortify  their  positions,  and  have  it  laid  on  the  table 
of  members — and  then  in  addition  to  that,  could 
inflict  each  of  them,  a  two  hours  speech  on  the 
Convention.  Under  such  circumstances  where 
would  be  this  distinguished  body  of  laymen  for 
whom  they  expressed  so  much  apprehension? 
They  would  be  more  in  the  dark  then  than  now. 
Mr.  CAMBRELENG  would  not  have  troubled 
the  Convention  with  a  single  remark  had  not  the 
gentleman  from  St.  Lawrence  made  a  direct  refe- 
rence to  the  committee  fo  which  he  belonged. — 
Although  he  in  some  degree  concurred  in  what  the 
gentleman  said,  yet  he  was  not  at  all  dissatisfied 
with  the  resolution  adopted  by  the  Convention. — 
In  the  former  Convention,no  order  was  taken  up- 
on the  subject.  It  was  left  to  the  discretion  of 
» the  different  committees  to  act  as  they  thought 
proper.  The  course  they  adopted  was  to  present 
the  naked  amendments,  and  for  the  reason  that  it 
was  all  important  at  the  outset  of  the  Convention 
that  the  members  should  know  what  amendments 
were  to  be  proposed,  and  deliberate  upon  them. 


[n  almost  every  instance  thdy  were  presented  to 
the  Convention  without  sufficient  deliberation,he 
might  say,  by  the  committees,  and  had  to  be  re- 
'erred  back  again.  And  notwithstanding  the  ar- 
guments of  the  gentleman  from  St.  Lawrence, 
'Mr.  RUSSELL,,)  he  must  say  that  he  preferred  that 
course.  Present  the  proposition  unprejudiced, 
unbiased  and  even  unargued  before  the  Conven- 
;ion,  leaving  the  members  unprejudiced,  to  come 
to  their  examination  in  committee  of  the  whole, 
and  to  perfect  them  by  debate.  He  did  not  think 
there  was  any  necessity  for  the  resolution,  be- 
cause he  believed  that  upon  reflection  every  com- 
mittee of  the  Convention,  would  feel  the  neces- 
sity of  presenting  their  propositions  without  any 
report  whatever.  As  for  himself  should  he  be 
instructed  by  the  committee  of  which  he  was 
chairman,  to  report  any  amendments,  he  should 
prefer  to  report  naked  propositions,  and  when  the 
time  arrived  for  discussion,  he  should  be  better 
prepared  to  submit  his  views  in  a  mature  shape. 
Whether  the  resolution  was  reconsidered  or  not 
was  immaterial  to  him,  but  he  hoped  and  believed 
that  the  different  committees  would  act  in  the 
spirit  of  the  resolution. 

Mr.  LOOMIS  said  that  when  this  resolution 
was  originally  adopted,  he  was  surprised,  he 
must  confess,  at  the  course  taken.  Had  he  anti- 
cipated even  the  probability  of  that  result,  he 
would  have  felt  called  upon  to  rise  and  oppose 
the  resolution,  and  to  explain  the  views  he  had 
upon  it.  He  had  himself,  no  doubt  in  his  own 
mind,  nor  should  he  now  entertain  any  doubt  in 
this  matter,  did  he  not  find  gentlemen  eminent 
from  their  position  and  experience  in  le- 
gislation, advocating  the  opposite  of  the  views 
he  entertained.  It  appeared  to  him  to  be  a 
proposition  adopted  by  this  Convention  to 
suppress  information.  Yes,  to  suppress  the 
convictions  of  the  committees  of  this  body,  sent 
out  from  it  for  the  very  purpose  of  ascer- 
taining facts  and  coming  to  deliberate  con- 
clusions. Why,  he  had  supposed  that  the  sup- 
pression of  opinion  was  above  all,  the  last  thing 
that  would  be  adopted  here.  These  committees 
are  sent  out  from  this  body,  composed  of  a  few 
individuals  of  our  number,  who  are  requested  to 
take  a  subject  into  consideration — to  give  it  their 
best  study  and  attention — to  collect  facts,  analyze 
them,  reason  on  the  subject — and  present  a  con- 
clusion to  the  Convention.  Now  it  appeared  to 
him,  that  if  the  committee  found  that  in  their 
judgment  it  was  expedient  to  present  the  reasons 
and  facts  which  brought  them  to  these  conclu- 
sions, in  order  to  sustain  them  before  the  body,  it 
was  their  duty  so  to  present  them.  And  he  should 
feel  bound  himself  to  do  so,  if  the  Convention 
had  not  absolutely  prohibited  it,  if  there  were 
facts  and  information  or  a  course  of  reasoning 
which  he  should  deem  important  to  a  proper  con- 
sideration of  a  subject.  Committees  were,  sent 
out  for  this  very  purpose.  Then  gentlemen 
would  have  the  whole  facts  spread  out  before 
them,  and  the  reasons  which  induced  the  com- 
mittee to  come  to  the  conclusions  which  it  might. 
And  then  they  would  be  able  to  analyze  them  in 
their  own  minds,  prepare  their  thoughts  upon 
them,  and  be  ready  to  oppose  or  support  them. — 
He  was  not  aware  whether  there  was  or  not  any 
committee  which  desired  to  make  a  written  re- 


131 


port,  but  he  could  very  well  imagine  that  there 
might  be,  and  it  was  desirable  that  they  should 
be  allowed  to  do  so.  We  are  not  to  suppose  that 
the  committees  would  go  out  and  come  back  with 
views  on  one  side,  as  partixans,  against  the  whole 
body  of  the  Convention  on  the  other  side  ?  No — 
the  committees  were  the  representatives  of  the 
Convention,  and  acted  for  the  whole  body.  They 
would  not  perhaps,  all  of  them,  feel  it  necessary  to 
present  arguments  for  their  propositions,  but 
there  might  be  cases  when  they  would  find  it  ex- 
pedient to  do  so;  and  he  for  one  would  feel  him- 
self very  much  assisted  in  his  efforts  to  arrive  at 
correct  conclusions,  by  knowing  the  reasons  which 
induced  the  committee  to  come  to  the  conclusions 
which  they  had,  and  knowing  it  too  in  advance, 
before  any  debate  here.  Then  he  would  be  pre- 
,  pared  to  form  his  opinions  and  express  them  in 
debate.  With  this  view,  he  thought  it  best  that 
the  Convention  should  permit  the  committees  to 
exercise  their  discretion  in  this  matter.  The  last 
body  in  the  world  to  prohibit  the  expression  of 
opinion,  should  be  a  Convention  to  amend  the 
fundamental  law. 

Mr.  SIMMONS  perfectly  agreed  with  the  sen- 
timents expressed  by  the  gentleman  from  Herki- 
mer  (Mr.  LOOMIS.)  Why,  if  we  went  back  some 
2000  years,  before  the  eloquence  of  the  press  was 
known,  and  when  the  inhabitants  of  Athens  and 
of  Rome,  discussed  great  questions  of  peace  or 
war  from  the  stump,  then  perhaps  it  was  not  so 
necessary  for  persons  to  give  even  to  themselves, 
the  reasons  for  their  own  action.  But  now  it 
seemed  to  him  to  be  inseparable  from  the  very 
idea  of  deliberation,  that  we  should  have  writing 
and  printing.  And  for  what  purpose?  Why, 
that  we  may  more  deliberately  examine  ques- 
tions, and  not  trust  to  mere  declamation  in  an 
assembly,  where  some  of  us  may  not  hear  dis- 
tinctly, and  all  of  us  not  be  able  to  determine  on 
the  moment,  and  to  examine  the  principle  of 
argument.  It  seemed  to  him  that  the  direction 
in  the  Bible  that  every  Christian  should  give  the 
reason  for  the  hope  that  was  in  him,  was  appli- 
cable here.  And  no  person  could  come  to  a  con- 
clusion in  which  he  could  expect  others  to  have 
confidence,  unless  he  himself  had  confidence  in 
it — and  he  could  not  have  that,  unless  he  had 
travelled  over  the  whole  ground.  And  before 
he  got  to  the  conclusion  of  his  labors,  he  would 
find  many  occasions  to  qualifiy  the  reasons  which 
heat  first  entertained.  He  "(Mr.  S.)  wanted  to 
have  at  least  the  prima  facie  reasons  which 
should  lead  to  the  conclusions  of  a  committee,  to 
aid  him  in  his  examination.  He  confessed  he 
was  surprised  at  the  vote — he  had  not  supposed 
this  resolution  would  have  received  the  slightest 
support.  It  was  entirely  contrary  to  the  usage 
of  any  similar  body.  In  all  of  them  he  had 
ever  heard  of,  this  liberty  was  allowed  to  the  com- 
mittees, but  above  all  was  it  out  of  place  in  a  con- 
vention like  this!  Indeed  the  only  question 
was,  whether  they  ought  not  to  be  compelled  to 
give  their  reasons  in  every  .case  in  writing.  To 
deprive  our  committees  of  the  right  to  do  so,  was 
to  deprive  ourselves  of  the  benefit  of  their  ex- 
amination and  study  in  coming  to  just  conclu- 
sions. We  had  no  security  for  that  unless  they 
were  allowed  to  make  a  written  report,  to  which 
they  would  be  committed  for  all  future  time.— 


With  all  respect  for  the  committee  who  had 
already  reported,  he  had  not  the  slightest  doubt 
that  if  they  had  been  compelled  to  accompany 
their  proposition  with  written  reasons  for  it,  there 
would  have  been  an  entirely  different  report. 

Mr.  BROWN  said  that  this  resolution  conveyed 
the  sense  of  this  house,  that  it  was  inexpedient 
for  any  committee  to  assign  the  reasons  for  any 
conclusion  they  may  have  adopted.  Now  he  ven- 
tured to  say  that  among  the  many  experienced  gen- 
tlemen in  legislation  in  that  house,  there  was  not 
one  of  them  that  could  ever  bring  to  memory  any 
legislative  or  deliberative  body  in  a  free  country 
that  ever  adopted  a  proposition  so  perfectly  pre- 
posterous— he  had  almost  said  infamous — as  this 
was.  The  business  of  this  house  had  been  distri- 
buted by  a  committee  of  17  without  any  oppor- 
tunity for  deliberation — and  here  are  the  members 
of  this  body,  without  having  interchanged  senti- 
ments— except  such  as  when  the  house  was  not 
in  session — upon  the  points  upon  which  this  con- 
stitution is  to  be  amended — and  now  we  are  to 
have  in  express  terms,  our  committees  forbidden 
from  assigning  any  reasons  which  induced  them 
to  arrive  at  conclusions.  What  did  this  mean  ? 
It  was  not  deemed  expedient,  it  was  said,  that 
the  committees  should  encumber  the  journals  by 
elaborate  reports.  But  he  did  undertake  to  say 
that  it  would  be  a  very  material  aid  in  our  delibera- 
tions to  understand  what  the  reasons  were,  and 
that  they  should  be  put  on  paper.  It  was  very 
justly  stated,  that  a  portion  of  these  reports  would 
be  based  upon  statistics  and  figures  and  facts,  be- 
yond the  reach  of  the  larger  portion  of  us,  wrho 
would  have  neither  opportunity  or  time  to  seek 
for  them.  And  if  this  resolution  should  be  adopt- 
ed as  the  deliberate  sense  of  the  house,  it  would 
be  equivalent  to  shutting  out  every  opportunity 
of  possessing  ourselves  of  these  facts  and  conclu- 
sions. He  had  the  honor  of  being  on  the  judi- 
ciary committee — who  met  at  9  o'clock  in  the 
morning,  and  continued  in  session  until  the  hour 
of  meeting — then  as  soon  as  we  adjourn  until 
dinner,  and  then  again  until  the  close  of  the  day. 
He  begged  to  know  how  he  was  to  be  informed 
of  the  important  questions  of  great  magnitude, 
submitted  to  the  other  committees,  if  his  time 
was  to  be  consumed  in  this  kind  of  way.  It  was 
unjust  to  him  individually — for  there  were  sub- 
jects referred  of  the  greatest  solicitude  to  himself 
individually,  and  to  his  constituents.  And  he 
regarded  it  as  a  cruel  piece  of  injustice' to  him, 
for  instance,  that  the  proper  committee  should  not 
inform  him,  \vhat  was  the  public  indebtedness 
— whether  20  or  $28,000,000.  It  was  a  compli- 
cated and  most  difficult  subject,  and  required  a 
long  and  searching  examination  to  be  clearly  un- 
derstood. And  were  we  to  be  told  that  the  able 
committee  to  whom  the  subject  was  referred, 
should  not  give  us  the  reasons  for  arriving  at  their 
conclusions.  He  trusted  gentlemen  would  de- 
liberate long  before  they  adopted  such  a  course. 
He  wanted  that  committee  to  report  here — what 
the  state  of  the  debt  was,  and  what  was  the  state 
of  the  public  revenue,  and  what  had  been  the 
course  and  practice  of  the  legislature  in  appro- 
priating the  public  monies,  until  the  state  found 
itself  almost  upon  the  very  verge  of  bankruptcy. 
He  wanted  it  spread  upon  the  journals  and  before 
the  house,  that  all  might  see  and  understand  it. 


132 


The  judiciary  committee,  permit  him  to  say,  may 
find  it  their  duty  to  report  a  large  increase 
of  the  judiciary  and  judges,  probably  to  an 
extent  that  will  alarm  the  people  at  the  expense 
to  be  entailed  upon  them,  and  are  we  to  be  pre- 
cluded all  opportunity  of  stating  what  the 
expenses  of  the  present  system  were,  and  what 
they  would  be  under  the  proposed  system.  Shall 
we  be  told  to  keep  our  mouths  close,  that  we 
shall  submit  the  bare,  naked  proposition  here, 
and  do  no  more.  He  hoped  that  no  such  thing 
would  be  done.  Permit  him  also  to  say  one  word 
in  regard  to  the  report  we  had  already  got  here, 
from  the  committee  on  the  Executive  depart- 
ment of  the  government.  He  concurred  in  the 
sentiment,  he  did  not  learn  here  this  morning, 
althongh  it  was  an  opinion,  in  which  also  he  was 
happy  to  find  his  friend  from  Essex,  (Mr.  SIM- 
MONS) concurring — that  if  that  committee  had 
been  obliged  to  accompany  their  report  with  the 
reasons  which  induced  their  conclusions,  it  would 
not  have  been  here  in  the  shape  it  was.  Here 
we  have  an  entire  Article  of  the  Constitution  re- 
ported, with  the  addition  of  two  or  three  words ; 
and  he  ventured  to  say  that  a  man  must  exercise 
no  little  ingenuity  to  say  what  were  the  reasons 
for  that  report.  He  would  like  to  have  the  rea- 
sons for  inserting  that  the  lieutentant  governor 
should  have  $6  ^per  day,  as  his  compensation — 
neither  more  nor  less.  Why  not  fill  the  Constitu- 
tion up  with  articles  as  to  the  pay  of  officers — as 
well  as  to  say  that  in  relation  to  the  Lt.  Governor. 
But  there  were  other  points  about  the  report  of 
that  committee,  of  which  he  would  not  speak 
now.  He  wished  to  refer  to  another  question 
here.  It  was  well  known  that  the  question  of 
the  abolition  of  slavery  in  the  District  of  Colum- 
bia, had  distracted  Congress,  year  after  year, 
and  any  gentleman  who  had  been  within  the 
region  of  that  excitement,  would  concur  with 
him  in  the  opinion  that  if  that  question  had  been 
sent  to  a  committee  and  reported  upon,  and  the 
reasons  fully  assigned — that  agitation  would  have 
ceased  long  since.  But  it  had  been  continued 
and  kept  up,  because  a  portion  of  the  members 
were  unwilling  that  the  petitions  on  that  subject 
should  be  disposed  of,  other  than  laid  on  the  ta- 
ble. It  was  not  his  opinion  alone  but  that  of  ev- 
ery gentleman  of  intelligence  with  whom  he  had 
met,  that  if  the  question  had  been  sent  to  a  com- 
mittee to  make  a  report  upon  it  and  that  report 
had  been  spread  before  the  country,  it  would 
have  had  the  same  effect  as  did  the  Sunday  Mail 
report,  of  putting  the  question  to  sleep  forever. — 
He  had  taken  the  occasion  the  other  day  to  enter 
his  protest  against  the  resolution,  and  he  hoped 
the  Convention,  out  .of  justice  to  itself,  if  not  to 
those  wrho  desired  the  reports,  would  allow  them 
to  be  made  or  withheld  at  pleasure. 

Mr.  CHATFIELD  said  that  having  given  his 
views  at  length  in  relation  to  this  subject,  at  the 
time  of  the  adoption  of  the  resolution,  he  should 
not  feel  justified  in  repeating  them  again,  were 
it  not  for  the  course  taken  by  certain  gentlemen, 
who  had,  with  a  great  deal  of  warmth  and  zeal, 
advocated  the  other  side  of  this  proposition.  He 
regretted  that  any  gentleman  should  have  thought 
it  important  for  him,  or  even  tolerable  here — to 
have  so  far  departed  from  legislative  courtesy,  as 


to  brand  any  proposition  here  presented  as  infa- 
mous. 

Mr.  BROWN :     I  did  not  do  so. 

Mr.  CHATFIELD  then  had  entirely  misunder- 
stood the  gentleman.  He  had  understood  him  to 
say  that  the  proposition  "  was  perfectly  prepos- 
terous, he  had  almost  said  infamous."  Now  he 
(Mr.  C.)  did  not  choose  to  stand  in  the  position  as 
a  representative  of  the  people,  that*  any  pro- 
position he  should  present  here,  should  be  so 
branded.  He  scorned  the  imputation  !  Nor  did 
he  believe  that  that  gentleman  here  was  so  far 
above  the  rest  of  his  fellows  as  to  stand  up 
and  pronounce  judgment,  not  upon  a  pro 
position  itself,  but  upon  the  motives  that  might 
have  prompted  it.  We  may  very  well  dif- 
fer as  to  the  course  of  proceeding,  but  still  we 
were  bound  to  believe  of  every  member,  that 
every  proposition  was  submitted  from  good  mo- 
tives and  for  justifiable  ends.  This  proposition 
he  believed,  was  submitted  by  the  gentleman  from 
Washington,  (Mr.  BAKER)  in  good  faith,  and  with 
a  desire  if  possible  to  permit  the  Convention  to 
arrive  at  conclusions  with  minds  elsewhere  un- 
prejudiced. He  sought  to  get  from  the  commit- 
tees merely  rules  for'the  action  of  the  body,  leav- 
ing every  member  uncommitted  as  to  the  reasons 
which  led  to  those  conclusions.  Such  was  his 
(Mr.  C.'s)  views  then,and  such  they  were  now,  and 
no  epithet  would  change  that  view.  Gentlemen  en- 
tirely mistook  his  character  if  they  supposed  that 
he  was  to  be  driven  from  any  position,  he  deem- 
ed tenable,  by  any  epithet  that  they  might  cast 
upon  him.  He  had  not  changed  his  views  in  re- 
gard to  the  propriety  of  the  action  to  be  adopted 
here.  He  looked  upon  this  body  as  entirely  dif- 
ferent in  its  constitution  and  mode  of  action  from 
a  legislative  body.  In  such  a  body,  it  was  very 
proper  that  committees  should  make  reports  on 
subjects  which  were  referred  to  them  of  a  local 
character,  and  where  all  the  information  as  to  the 
propriety  of  legislation  is  derived  from  an  exami- 
nation of  local  facts  and  causes,  and  of  knowledge 
confined  to  the  locality.  It  therefore  became 
important  to  present  the  reasons  and  facts  upon 
which  was  based  the  conclusions  to  the  house  as 
the  subject  matter  for  legislation.  But  was  there 
any  man  who  came  here  not  knowing  that  the 
subject  matter  for  our  action  was  the  Constitu- 
tion of  the  State — the  organic  law — to  amend  it  if 
we  deem  proper — or  to  frame  an  entire  new  in- 
strument if  we  deem  it  preferable  ?  Every  pro- 
position here  therefore  was  connected  with  the 
organic  law,  and  he  desired  for  one  to  have  them 
presented  to  the  house  without  being  embarrassed 
with  the  reasons  which  led  to  conclusions  in  others. 
The  gentleman  from  Herkimer  (Mr.  LOOMIS) 
had  said  that  these  committees  were  dele- 
gations of  the  power  of  the  house.  That  may 
be  true,  but  he  did  not  believed  they  could  force 
upon  us  binding  and  irrevocable  results.  If  so, 
then  the  propositions  they  submitted  to  this  house 
could  not  be  changed  or  altered  in  any  particular. 
He  did  not  believe  that.  They  were  sent  to  these 
committees  for  the  purpose  of  being  arranged  and 
reduced  to  form,  and  after  this  primary  action  in 
committee,  should  be  submitted  to  this  body  with- 
out any  reasons  for  their  conclusions.  He  did  not 
know  how  far  the  action  of  gentlemen  looked  be- 
yond this  hall  or  what  ambitious  aspirations  they 


133 


wished  to  strengthen  by  being  put  upon  record  in 
the  form  of  written  reports.  He  knew  not  what 
offices  were  to  be  made  by  the  Convention  to  be 
filled  by  its  members,  or  how  far  gentlemen  were 
looking  for  places  on  the  judiciary.  It  was  not 
for  him  to  say,  but  he  was  surprised  to  find  almost 
every  member  of  the  judiciary  committee  advo- 
cating this  proposition,  to  allow  the  committee  to 
make  written  reports.  It  was  not  for  him  to  im- 
pugn or  to  judge  of  the  motives  which  promp- 
ted the  action  of  gentlemen — he  was  bound  to 
believe  that  they  were  good  ones,  and  he  did 
believe  so.  There  were  some  other  reasons 
which  induced  him  to  support  the  resolution 
adopted  the  other  day.  There  might  be  long 
elaborated  reports  from  several  members  of  a 
committee,  and  in  one  instance,perhaps  that  of  the 
judiciary,  from  13.  These  would  all  go  on  the 
journal,  and  it  would  therefore  be  encumbered 
and  enlarged  beyond  all  useful  purposes.  And  he 
did  not  believe  that  we  should  gain  any  thing  by 
printing  all  of  them — he  had  come  to  the  conclu- 
sion that  the  money  of  the  State  could  be  better 
expended.  The  gentleman  from  Orange  had  said 
that  in  some  instances  the  committees  were  charg- 
ed with  matters  merely  statistical.  Did  the  gen- 
tleman suppose  that  those  statistics  if  necessary 
to  the  house,  would  not  be  communicated  ?  If  he 
made  a  report  from  any  committee  he  chanced  to 
be  on,  and  it  was  necessary  to  communicate  any 
information  not  already  communicated,  he  appre- 
hended he  could  do  so.  There  would  be  no  lack  of 
an  opportunity.  As  had  been  said  by  his  friend 
from  Genesee,  the  advocates  of  this  motion  to  re- 
verse the  previous  action  of  the  house,  were  al- 
most all  of  them,  men  who  were  able  to  make 
known  their  views  here.  And  this  proposition 
came  not  from  the  men  who  seemed  to  have  so 
many  excellent  friends  to  present  their  side  to 
house.  Not  from  those  who  were  not  speaking 
men,  but  f'-om  those  who  seem  to  feel  it  a  duty 
imposed  uj-on  them  to  submit  their  reasons  in  the 
form  C'  written  reports.  Not  from  those  who  had 
not  the  power  to  make  themselves  understood, 
but  from  those  who  were  perfectly  competent  to 
do  so.  Now  his  friend  from  Herkimer  could 
at  any  time,  when  any  proposition  was  un- 
der consideration,  whether  it  had  passed 
through  a  committee  or  not,  make  himself  un- 
derstood in  every  respect  and  manner.  So  with 
his  friends  from  Orange,  and  Essex  and  St.  Law- 
rence. But  he  did  not  desire  that  they  should  be 
put  upon  the  record  first  in  a  written  report,  and 
then  have  their  speeches  spread  before  the  house 
and  the  country  afterwards — and  have  members 
perhaps  committed  to  their  views.  He  wished  to 
leave  every  man  on  terms  of  equality,  and  not  to 
have  his  judgment  prejudiced  by  the  elaborate 
reasons  of  other  gentlemen.  It  was  in  that  view, 
and  that  only,  that  he  opposed  the  bringing  in  of 
written  reports,  and  their  being  placed  on  the 
journals. 

Mr.  BROWN  rose  for  the  purpose  of  making 
an  explanation.  He  had  used  a  word  in  the  heat 
of  debate  which  seemed  to  admit  of  an  offensive 
interpretation.  Whether  it  was  really  so  in  it- 
self, or  whether  given  that  form  through  the  de- 
sire of  the  gentleman  from  Otsego  to  put  him  in 
the  wrong,  he  would  not  undertake  to  say  now. 
He  would  only  say  that  he  imputed  motives  to 


no  person,  and  that  the  word  was  not  used  at  all 
in  an  offensive  sense  That  would  be  sufficient 
for  the  house — whether  it  would  be  for  the  gen- 
tleman from  Otsego,  was  another  question.  If  he 
desired  to  put  him  (Mr.  B.)  in  the  wrong,  as  he 
had  manifested  on  another  occasion,  he  would 
take  an  opportunity  to  reply  to  him,  in  a  man- 
ner which  he  should  not  now. 

Mr.  CHATFIELD  desired  to  say  that  he  might 
have  labored  under  a  misconception.  The  reason 
of  his  remarks,  was  only  because  he  had  been  an 
advocate  of  this  proposition  the  other  day,  and  he 
had  supposed  that  the  offensive  remark  was  le- 
velled at  him,  in  part. 

Mr.  BROWN  assured  the  gentleman  that  he  did 
not  intend  to  do  so.  He  did  not  think  at  the  time 
what  course  the  gentleman  took.  He  had  used 
the  phrase  in  the  heat  of  debate,  and  if  the  gen- 
tleman had  not  been  so  ready  to  put  him  in  the 
wrong,  as  he  had  on  another  occasion,  in  refer- 
ence to  a  little  matter  of  adjournment — 

Mr.  CHATFIELD  had  no  remembrance  of  the 
occasion. 

Mr.  BROWN  had — but  he  would  not  advert  to 
it  further. 

Mr.  DANA  hoped  this  motion  would  be  adopt- 
ed. He  found  himself  in  an  unpleasant  situation 
in  relation  to  it.  He  was  told  by  gentlemen  that 
we  could  all  express  our  views  on  any  subject, 
and  he  was  told  by  others  who  opposed  the  reso- 
lution, that  we  could  not.  So  he  knew  not  what 
to  think.  He  knew  nothing  about  talking  in  pub- 
lic— all  he  desired  was  an  opportunity  if  he 
chose,  to  write  and  read  off  his  speech,  as  was 
done  the  other  day.  And  he  would  therefore  pre- 
fer to  have  the  reports  of  the  committees  printed, 
so  that  he  could  take  them  home  to  his  room  and 
examine  them  at  his  leisure,  and  then  he  would 
be  much  better  enabled  to  come  to  correct  con- 
clusions, and  to  write  out  a  reply  if  he  desired. — 
He  hoped  therefore  the  committee  would  have  the 
privilege  of  adopting  the  course  which  to  them 
might  seem  best.  He  should  vote  therefore  for 
the  motion  to  reconsider. 

Mr.  STETSON  said  that  he  did  not  hear  all  the 
discussion  that  took  place  the  other  day,  when 
this  resolution  was  adopted.  He  had  been  com- 
pelled to  be  absent  from  his  seat,  and  came  in 
while  it  was  in  progress.  Whose  resolution  it 
was,  he  did  not  know  until  after  the  question  was 
taken.  He  heard  the  very  able  gentlemen  from  Ot- 
sego and  Ontario  advocating  it  when  the  vote  was 
taken,  and  from  an  instinctive  sense,  he  had  voted 
against  them.  For  himself,  he  felt  that  the  con- 
clusion was  unwise,  and  he  was  happy  therefore 
to  hear  the  gentleman  from  St.  Lawrence  imme- 
diately move  a  reconsideration,  and  had  he  (Mr. 
S.)  been  the  only  member  of  the  house,  to  do  it,' 
he  would  have  taken  pleasure  in  recording  his 
vote  with  that  gentleman  upon  the  proposition, 
and  it  might  be  yet  that  they  would  stand  alone. 
He  did  not  feel  that  the  proposition  was  infamous, 
or  that  any  gentleman  who  had  argued  on  that 
side  of  the  question,  had  done  more  than  to  ex- 
press his  views.  But  this  resolution  went  a  great 
way  beyond  the  precedent  to  which  they  referred. 
This  declares  it  to  be  inexpedient  for  any  com- 
mittee to  give  their  reasons  for  coming  to  any 
conclusion.  The  practice  in  the  Convention  of 
1821  was  not  founded  on  a  resolution,  but  on  the 


134 


suggestion  of  a  member,  now  in  this  body.  It 
was  left  discretionary  with  the  committees. — 
The  present  resolution  was  a  direct  instruction 
to  them.  What  was  it  ?  Why,  a  gag  upon  the 
organized  Committees  of  the  body.  It  involves 
the  extraordinary  absurdity  of  constituting  a 
committee,  and  taking  their  conclusions  and  at 
the  same  time  repudiating  the  reasons  that  had 
conducted  them  to  it.  He  believed  that  he  was 
right.  Would  the  gentleman  say  that  a  wise  con- 
clusion was  always  apparent  upon  a  statement  of 
facts.  If  that  was  so,  we  needed  no  committee — 
for  we  might  act  together  in  the  body.  If  the  rea- 
sons are  not  apparent  upon  a  statement  of  reflected 
forms  connected  with  Constitutional  law,  then 
these  was  needed  as  we  now  have,  the  organiza- 
tion of  committees.  And  pray  for  what  purpose, 
unless  to  hear  the  matured  reasons,  that  may  have 
brought  them  to  the  conclusions,  not  apparent 
and  obvious  to  all.  It  was  feared  that  these 
reports  would  influence  the  action  of  the  House. 
It  might  have  that  effect — but  unless  we  came 
here  to  act  upon  a  premature  distrust  of  the  orga- 
nization of  the  house,  we  should  have  no  fears  of 
it.  This  always  was  the  case  in  all  legislative 
bodies.  The  standing  committees  were  constitu- 
ted for  the  arrangement  csf  thought,  and  the  con- 
sideration and  deliberation  of  subjects.  They 
examined  books,  documents,  history  and  every 
source  of  information,  and  gave  us  in  a  concise 
form  the  result  of  their  deliberations.  But, 
says  the  gentleman  from  Otsego,  we  do  not  want 
these  reports  to  stand  upon  the  journals  of  the 
house — or  have  them  printed,  because  they 
will  influence  the  people — encumber  the  jour- 
nals, he  said.  Well,  then,  it  was  reduced 
to  a  mere  question  of  time.  Was  the  gen- 
tleman certain  that  reasons  given  orally  on 
the  floor  of  this  house,  vrould  be  as  well  con- 
sidered and  as  well  attended  to  as  a  written  re- 
port. And  again,  if  they  were  not  written,  time 
must  be  taken  by  the  whole  body  to  hear  them 
presented.  In  the  one  case  they  could  be  read  and 
examined  in  their  rooms,  and  in  the  other,  the 
whole  body  must  depend  upon  one  hasty  and  im- 
perfect hearing,  with  a  general  consumption  of 
time.  It  was  an  argument  in  favor  of  long  ses- 
sions, and  in  that  respect,  where  was  the  saving 
of  public  money  ?  The  gentleman  although  ar- 
guing ably,  it  seemed  to  him,  had  gone  too  far.— 
He  seemed  to  take  it  for  granted,  that  if  this  reso- 
lution was  reconsidered,and  each  committee  left  to 
its  own  discretion  in  the  matter,  that  the  journals 
would  be  encumbered  with  long  written  reports 
upon  every  subject.  He  thought  better  of  the  in- 
telligence of  the  committees.  He  had  the  fullest 
confidence  in  that  comprehensive  word, — the  dis- 
cretion, of  members.  The  committees  would  not 
unnecessarily  make  any  long  written  reports. 
There  had  been  mixed  up  too  with  this  discussion, 
a  dissertation  as  to  the  motives  of  gentlemen  on  this 
floor,  which  he  wished  to  repudiate  on  both  sides 
alike.  Allusions  had  been  made  by  the  gentle- 
man from  Genesee  (Mr.  RICHMOND,)  to  members 
who  desired  to  make  a  written  report  and  a  speech 
also.  This  he  was  glad  to  see,  was  disclaimed  by 
his  friend  from  Madison,(Mr.  DANA)  who  was  de- 
sirous to  have  the  right  of  writing  as  well  as  talk- 
ing. Those  who  talked  would  undoubted- 
ly be  satisfied  with  the  monopoly  of  that 


right — while  those  who  desired  to  express 
their  views  in  writing,  would  also  have  the  full- 
est opportunity  for  that.  Allusions  had  been 
made  by  his  friend  from  Otsego, — rather  ambig- 
uously made — somewhat  insinuated — that  there 
might  be  a  lurking  desire  for  posthumous  fame  on 
the  part  of  the  members  of 'Certain  committees, 
and  to  perpetuate  their  names  on  the  journals  in 
connection  with  their  reports.  If  the  glory  of 
the  future  operated  upon  their  minds  of  distin- 
guished gentlemen,  he  would  leave  it  to  his  saga- 
cious friend  from  Otsego  to  say,  whether  they 
could  not  accomplish  that  by  a  speech  as  well  as 
by  a  report.  Here  we  had  an  able  corps  of  repor- 
ters, taking  down  the  discussions  word  for  word, 
to  be  daily  published,  and  after  to  be  bound  up  in  a 
book  and  thrown  upon  the  country.  If  any  de- 
sire of  that  kind  existed,  therefore,  it  could  be  as 
easily  attained  in  one  form  as  the  other.  His 
friend  from  Otsego  had  also  made  use  of  a  personal 
allusion  wholly  unnecessay.  He  Mr.  S.  was  not 
on  the  judiciary  committee  himself,  but  knowing 
them  to  be  honorable,high-minded,  distinguished 
gentlemen,  he  would  not  believe  them  for  one 
moment  to  be  animated  by  any  such  feeling  or 
sentiment  as  the  gentleman  from  Otsego  imagined. 
He  believed  they  possessed  that  same  fidelity  to 
the  best  interests  of  the  people,  as  was  the  other 
day  claimed  by  the  gentleman  for  himself.  He  wan- 
ted these  written  reports  for  his  own  examination. 
If  the  committee  gave  good  reasons  he  would 
thank  them  for  it.  If  they  failed  to  do  so  and 
put  a  bad  one  before  him,  it  gave  him  warning  of 
it  in  time  to  get  rid  of  it.  There  was  another 
point.  To  refuse  to  reconsider  the  resolution, 
would  have  possibly  the  certain  effect  to  place 
every  member  of  this  Convention  in  a  false  posi- 
tion before  the  country  and  before  posterity. — 
Here  we  have  referred  to  us  baskets  of  resolutions 
— some  of  them  containing  propositions  very 
plausible  in  their  form,  such  at,  the  greatjnass  of 
persons  would  at  once,  urge  the  adoption  of — and 
we  are  gagged  from  giving  our  reasons  if  we  do  not. 
And  we  go  forth  to  the  world  as  having  made 
an  unwise  conclusion,  because  a  wise  conclu- 
sion is  not  always  apparent  in  a  wise  proposition. 
There  was  yesterday  the  proposition  of  the  gen- 
tleman from  New-York  (Mr.  MORRIS)  in  relation 
to  taxation — what  was  the  action  upon  it  ?  It 
was  referred  to  a  select  committee  for  the  purpose 
of  getting  information  upon  that  subject.  How 
were  we  to  get  this  information  when  the  com- 
mittee were  restricted  solely  to  the  bringing  in  of 
a  projet.  The  gentleman  from  New-York  (Mr. 
MORRIS,)  who  had  been  placed  at  the  head  of  this 
committee  had  promised  to  give  his  reasons  for 
the  adoption  of  this  proposition.  And  how  must 
he  do  it  except  through  a  speech,which  he  had  the 
same  right  to  make  before.  This  was  the  dilem- 
ma in  which  the  operation  of  that  resolution 
would  put  him.  These  views  would  induce  him 
(Mr.  S.)  to  differ  from  the  able  gentlemen  on  the 
other  side.  He  might  be  in  a  minority,  still  he 
was  confident  that  he  was  in  the  right. 

Mr.  W.  TAYLOR  said  that  when  the  resolu- 
tion was  under  consideration  the  other  day,  he 
did  not  participate  in  the  debate  had  upon  it,  and 
indeed  he  paid  but  very  little  attention  to  it.  He 
could  see  nothing  then  or  now  so  very  preposter- 


135 


ous  in  this  Convention  adopting  the  same  rule  as 
did  that  in  1821. 

Mr.  STETSON  said  that  there  was  no  gag  law 
then — the  matter  was  left  to  the  discretion  of  the 
committees.  He  was  willing  to  trust  it  there 
still. 

Mr.  TAYLOR  did  not  apprehend  that  there  was 
any  gag  now.  The  resolution  was  merely  decla- 
ratory of  the  sentiments  of  the  Convention,  that  it 
was  inexpedient  that  the  various  committees 
should  accompany  their  propositions  of  amend- 
ment with  any  written  report  of  the  reasons  which 
influenced  them  in  coming  to  the  conclusions  to 
which  they  had  arrived.  He  believed  on  that  oc- 
casion he  voted  for  the  resolution.  He  had  lis- 
tened with  that  attention  and  pleasure  he  always 
listened,  to  the  remarks  of  the  gentleman  from  Ot 
sego,  and  he  must  confess  that  taking  into  consi- 
deration with  those  remarks,  the  action  of  the 
Convention  of  1821,  his  mind  was  impelled  to 
favor  the  resolution.  He  should  now  vote  to  re- 
consider, because  he  thought  the  end  desired  to 
be  attained  by  the  resolution,  was  already  well  ac- 
complished, from  what  had  been  the  indications 
here  to-day,  of  the  sentiments  of  the  Convention 
against  these  long  written  reports.  But  if  it  was 
needed  for  the  information  of  the  body,  to  accom- 
pany a  proposision  with  statistics  and  facts,  toge- 
ther with  the  reasons  which  influenced  the  con- 
clusions, drawn  up  in  a  concise  and  succinct  man- 
ner, the  committee  should  be  at  liberty  to  give  it. 
He  believed  no  committee  would  feel  at  liberty  to 
present  any  report  lengthily  and  specially  drawn 
out  For  these  reasons,  he  should  now  vote  for 
the  reconsideration. 

Mr.  BRUCE  did  not  believe  it  to  be  his  duty  to 
give  his  vote  for  the  motion  to  reconsider,  not 
only  for  reasons  which  had  already  be«n  adduced 
but  for  others.  In  the  first  place  the  resolution 
was  the  same  as  adopted  by  the  Convention  oi 
1821,  and  he  had  yet  to  learn  that  any  evils  had 
arisen  out  <:f  it  there.  Another  reason,  was  that 
he  was  opposed  to  giving  any  committee  the  righ 
to  spreac  out  on  the  journals  their  opinions — as 
it  would  be  giving  to  them  an  advantage  that  no 
member  on  the  floor  could  have.  When  their  ar- 
guments came  to  be  discussed,  members  woulc 
not  have  the  privilege  they  had,  of  having  their 
remarks  spread  out  also  upon  the  journals.  Ano- 
ther reason  was,  that  to  repeal  the  resolution  now 
would  be  to  retard  and  embarrass  the  action  o 
the  Convention.  One  committee  had  already  re 
ported,  and  they  did  not  consider  themselves  as 
having  the  right  to  give  their  reasons  for  the  con- 
clusions to  which  they  had  arrived.  He  believec 
also  that  there  were  others  who  had  got  their  re 
ports  nearly  ready,  under  the  supposition  that  thej 
too  were  not  to  have  this  privilege.  If  the  reso- 
lution was  repealed,  they  may  feel  it  their  duty  to 
look  into  their  arguments  and  to  make  up  a  re- 
port, and  thus  it  would  be  delayed  several  days 
If  there  were  no  written  reports,  judicial  tribu 
nals  hereafter  in  construing  the  Constitution 
would  not  deem  it  to  be  their  duty  to  go  beyonc 
*he  instrument  to  ascertain  its  meaning.  Bu 
as  a  sufficient  reason  that  those  who  migh 
dissent  in  toto  from  the  reasonings  of  the  report, 
although  agreeing  with  its  conclusions,  woulc 
not  have  the  same  opportunity  of  being  recorded 


in  the  journals.     He  was  therefore  opposed  to 
he  motion  to  reconsider. 

Mr.  STEPHENS  had  but  little  parliamenta- 
y  experience,  but  so  far  as  his  knowledge  and 
information  extended,  he  believed  there  never  did 
happen  in  a  legislative  body  such  a  thing  as  the 
committees  being  precluded  from  making  a  writ- 
en  report,  if  they  chose  to  do  so.  Reference  had 
jeen  made  to  the  last  Convention,  and  it  struck 
lim,  at  the  time,  that  it  was  rather  unparliamen- 
tary to  allow  committees  to  make  reports  without 
assigning  their  reasons  for  them ;  and  he  believed 
t  was  so  considered  in  that  Convention.  It  was 
not  pretended  there  that  they  were  precluded 
from  giving  their  reports  in  writing ;  it  was  left 
entirely  to  their  own  discretion.  He  stood  in 
this  matter  in  rather  a  peculiar  situation.  He  had 
voted  for  the  resolution  ;  but  without  full  consi- 
deration, he  confessed.  And  subsequent  reflec- 
tion, and  the  remarks  he  had  heard  here,  had 
satisfied  him  now  that  it  ought  not  to  have  been 
adopted.  He  could  see  none  of  the  evils  gentle- 
men had  depicted,  in  merely  allowing  the  com- 
mittees to  avail  themselves  of  the  opportunity  if 
they  chose.  He  believed  that  very  few  would  da 
so  unless  they  deemed  it  actually  necessary.  One 
word  in  reference  to  the  judiciary  committee,  of 
which  he  had  the  honor  to  be  a  member.  He  was 
not  aware  that  there  was  such  a  unanimity  of  opin 
ion  among  the  members  as  had  been  intimated. 
But,  as  for  his  own  part,  his  mind  had  been  en- 
tirely undecided  on  the  subject;  and  he  might 
therefore  be  absolved  from  any  imputation  of  hav- 
ing reference  to  the  future,  in  his  action  upon  this 
matter. 

Mr.  JORDAN  said  that  he  voted  for  the  resolu- 
tion when  it  passed  ;  and  he  had  heard  the  de- 
bates upon  the  motion  to  reconsider  ;  but  still  he 
remained  in  his  first  opinion.  He  would  state 
briefly  his  reasons.  Objections  were  raised,  wor- 
thy of  great  consideration— that  it  was  unparlia- 
mentary— that  there  never  had  been  an  instance 
in  any  deliberative  body,  of  committees  being  pre- 
cluded from  expressing  their  opinions  on  the  sub- 
jects referred  to  them.  It  seemed  to  him  that  the 
objection  was  not  well  taken,  for  the  reason  that 
this  was  unlike  any  other  deliberative  body.  No 
precedents  could  be  cited  from  the  British  Con- 
stitution, because  they  had  never  known  such  a 
thing  as  a  Convention  to  revise  the  fundamental 
law.  Nor  could  we  draw  any  conclusions  of 
practice  from  other  bodies — for  there  had  been 
but  one  such  convened  in  the  State.  And  altho' 
on  that  occasion  no  formal  resolution  passed  pro- 
hibiting committees  from  making  written  reports, 
yet  it  was  universally  understood,  and  the  records 
show  that  in  no  instance  was  there  any  such  re- 
port made.  He  would  not  repeat  the  reasons 
which  had  been  suggested  in  opposition  to  the 
proposition,  but  he  rose  for  the  purpose  of  stating 
some  reasons  which  had  not  yet  been  arrived  at 
by  any  remarks  that  had  been  submitted.  We 
are  not  to  act  finally  and  conclusively.  The 
Constitution  we  might  adopt,  was  to  be  passed 
upon  ultimately  by  the  People  themselves. — 
It  might  very  well  be  said  that  the  results  to 
which  the  committees  might  arrive,  would  not 
be  in  accordance  with  the  final  deliberations 
of  the  Convention.  For  instance,  the  judiciary 
committee,  of  which  he  was  a  member,  might  re- 


136 


port  a  plan  for  the  re-organization  of  the  judiciary, 
and  in  the  Convention  that  plan  might  be  essen- 
tially amended.  But  were  it  otherwise — and  the 
action  of  the  committee  final,  so  far  as  this  body 
was  concerned — still  it  had  to  go  to  the  people  be- 
fore it  become  a  part  of  the  fundamental  law.  He 
understood  that  the  reports  of  these  committees 
were  to  go  upon  the  journal.  No  other  remarks 
offered  by  any  other  member  would  go  there,  and 
the  consequence  would  be  that  when  the  Constitu- 
tion was  submitted  to  the  people,  they  would  have 
the  arguments  only  on  one  side.  If  the  proposition 
should  be  overruled,  there  would  be  the  reasons 
which  sustained  the  committee  in  coming  to  their 
conclusions,  but  where  would  the  people  look  for 
the  reasons  which  ruled  the  convention,  to  a  dif- 
ferent conclusion  or  to  that  modification.  It  may 
be  said  that  we  have  reporters  Jiere,  who  will 
carefully  report  all  the  suggestions  that  were 
made  here,  and  who  would  embody  the  entire  pro- 
ceedings proceedings  in  a  volume.  If  the  peo- 
ple were  to  rely  on  that  for  information,  why  not 
permit  the  reasons  which  influenced  the  commit- 
tee in  coming  to  the  conclusions,  to  be  put  also  in 
the  same  book,  so  that  their  action  might  be  re- 
conciled with  that  of  the  Convention,  especially  on 
all  occasions  when  the  Convention  might  come  to 
conclusions  differing  from  those  to  which  the 
committees  had  arrived.  It  was  to  be  desired 
that  every  member  here  should  have  an  equal  op- 
portunity of  putting  his  reasons  for  action  in  the 
Convention  at  large  before  the  people,  when  they 
came  to  pass  upon  the  Constitution,  in  at  least 
as  imposing  and  as  enduring  a  form  as  the  reports 
of  the  committees.  These  were  the  reasons  that 
would  actuate  him  in  voting  to  sustain  the  reso- 
lution. 

Mr.  MARVIN  proposed  to  add  a  single  remark 
or  two  in  addition  to  what  had  just  been  said. — 
He  \vould  submit  to  gentlemen  whether  there  was 
any  analogy  between  this  Convention  and  a  leg- 
islative body.  In  such  a  body,  committees  are 
raised  to  take  into  consideration  entire  subjects, 
and  the  committees  so  act,  and  report  an  entire 
bill,  having  no  connection  whatever  with  any  oth- 
er bill  that  may  be  passed.  Now  our  action  here 
would  be  somewhat  analagous  to  the  action  of  the 
legislature,  if  the  entire  Constitution  was  referred 
to  a  single  committee.  Then  the  committee  in 
making  their  report,  could  give  as  an  entire  sys- 
tem of  government  for  the  State,  and  in  doing  so 
it  might  well  be  quite  necessary  and  important 
that  it  should  render  its  reasons,  in  an  elabo- 
rate form,  for  the  system  it  proposed  to  have 
adopted.  But  how  wras  it  here  ?  We  have 
parcelled  out  the  Constitution,  among  18 
different  committees.  Now  suppose  a  com- 
mittee on  one  subject  of  the  Constitution 
should  come  in  here,  and  that  their  reports,  sus- 
tained by  strong  and  able  arguments,  should  be 
adopted  ;  when  another  committee  came  in,  wThat 
guarantee  would  there  be,  that  both  reports  would 
harmonize  ?  But  adopt  it,  and  the  various  re- 
ports of  the  other  committees,  conflicting  in  the 
.same  manner,  what  kind  of  a  thing  would  we 
have  of  the  Constitution  ?  Even  if  they  were  adop- 
ted as  proposed,  he  apprehended  it  would  be  of- 
ten necessary  to  reconsider  votes,  previously  had, 
in  order  to  make  the  several  propositions  harmo- 
nize. In  this  way  it  might  so  happen  that  in 


point  of  fact,  the  reasons  assigned  by  a  commit- 
mittee  would  cease  to  be  thi»proper  ones,  and  have 
no  applicability.  Indeed  the  very  committee 
may  themselves  agree  to  changes  and  important 
alterations,  for  the  sake  of  harmonious  action. — 
There  was  another  view  he  had  not  heard  sugges- 
ted, and  which  indeed  governed  the  action  of  the 
Convention  of  1821,  in  this  matter  of  written  re- 
ports. It  might  so  happen,  that  we  should  vote 
unanimously  perhaps  for  a  proposition  presented 
by  a  committee,  and  at  the  same  time  not  agree 
with  all  their  reasons  for  arriving  at  the  same  con- 
clusion. Hence,  if  these  written  reports  should 
be  received,  it  would  appear  and  be  so  consider- 
ed, that  every  man  agreed  and  coincided  with  its 
reasonings,  and  that  they,  were  those  which  con- 
trolled the  action  of  the  Convention.  There  was 
therefore  no  analogy  between  this  and  a  Legisla- 
tive body.  It  had  struck  him  at  the  first,  when 
this  resolution  was  adopted,  that  it  wras  not  very 
important,  and  that  we  had  better  have  none 
on  the  subject,  but  after  hearing  the  debates,  he 
had  become  entirely  satified  that  by  allowing 
these  reports  to  be  made,  it  would  involve  us  in 
great  difficulties.  Going  out  as  they  would  into 
the  country,  and  then  not  followed  by  our  final  ac- 
tion, it  might  lead  to  confusion  among  th,e  peo- 
ple. After  the  Constitution  had  been  formed 
and  a  final  vote  taken  on  it  in  Convention,  then 
he  should  like  to  see  arguments  made  pro  and 
con,  upon  it,  and  to  see  the  best  minds  in  the 
State  take  it  up  and  discuss  it  section  by  section. 
Then  the  people  could  take  it  as  a  whole,  as  an 
entire  proposition,  without  having  heard  these 
reports  in  parcels,  conflicting  as  they  must  writh 
each  other.  It  semed  to  him  that  the  people 
would  have  a  better  knowledge  of  the  action  of 
the  Convention  if  it  was  discussed  in  that  form, 
and  in  that  way. 

Mr.  VAN  SCHOONHOVEN  regretted  very 
much  to  find  himself  differing  on  this  occasion 
with  so  many  able  gentlemen,  and  had  it  not 
been  that  he  had  thought  very  much  on  the  sub- 
ject, he  knew  not  to  what  conclusion  he  might 
have  come.  He  was  decidedly  opposed  to  the 
adoption  of  the  resolution  when  first  presented, 
and  he  should  vote  for  the  reconsideration  now. 
In  the  first  place  the  proposition  to  shut  out  the 
reports  of  committees  was  in  direct  violation  of 
the  standing  rules  of  parliamentary  law,  and  of 
legislative  practice.  What  was  the  object  of  ap- 
pointing committees  at  all,  but  to  gather  facts  and 
furnish  arguments  on  them  for  the  use  of  the 
body,  and  to  guard  against  hasty  action,  and  the 
effect  of  that  kind  of  eloquence  to  which  we  had 
listened  this  morning.  Gentlemen  might  by  a 
very  plausible  argument,  induce  very  different 
conclusions  to  what  members  would  arrive  at,  if 
those  arguments  were  spread  out  before  them  on 
paper,  and  opportunity  afforded  them  for  exami- 
nation. What  sort  of  argument  was  it  to  address 
to  the  people,  to  say  that  these  reports  going  out 
to  them  would  have  a  tendency  to  mislead 
them.  He  had  too  much  reliance  on  their  intel- 
ligence then  to  believe  that  they  would  be  imposed 
upon  by  the  report  of  any  committee.  They  might 
indeed,  and  ought  to  be,  influenced  by  any  report 
whose  reasonings  were  based  on  a  sound  founda- 
tion— but  of  that  they  were  capable  to  judge. — 
But  if  they  were  not,  there  would  undoubtedly  be 


137 


found  enough  of  those  who  would  give  them  all 
necessary  suggestions  and  reviews  of  improper 
reports.  So  there  was  no  need  of  apprehension 
of  any  danger  resulting  from  the  effects  of  these 
reports  upon  the  people.  But  there  was  hardly 
a  subject  on  which  there  would  not  be  at  least 
one  or  two  minority  reports  from  the  committees. 
So  there  would  be  no  important  subject  presented 
to  the  people  in  a  one-sided  point  of  view.  For 
instance  in  regard  to  the  important  question  of  the 
creation  and  division  of  estates  in  land,  was  it  to 
be  believed  that  when  the  able  chairman  of  that 
committee  presented  his  report  on  the  subject, 
that  the  committee  would  be  so  harmonious  as  all 
to  agree  to  it.  He  thought  not,  and  he  desired  that 
all  might  have  an  opportunity  to  express  their 
views  upon  it.  What  then  became  of  the  argu- 
ment that  the  people  would  be  improperly  influ- 
enced by  these  reports  ?  It  had  been  also  suggest- 
ed by  the  gentleman  from  Otsego,  that  these  re- 
ports would  be  encumbering  the  journals,  and 
making  a  most  voluminous  volume.  There  might 
be  cases  where  there  would  be  more  said  than 
necessary,  but  he  believed  that  taking  the  great 
majority  of  them,  they  would  contain  nothing 
more  than  was  deemed  actually  necessary  for  the 
information  of  the  house.  He  would  not  say  that 
it  was  a  reflection  upon  these  committees  to  assert 
this,  but  it  would  be  the  last  thing  that  he  would 
look  for.  It  had  also  been  said  that  it  would  be 
giving  an  undue  advantage  to  the  members  of  the 
committees  to  allow  them  to  urge  their  reasons  in 
writing,  as  though  they  were  all  to  be  upon  one 
side  of  the  question,  and  there  would  be  no  op- 


advantage,  if  any,  would  be  on  the  side  of  the 
members,  who  would  have  an  opportunity  to  ex- 
amine carefully  and  deliberately  the  reasonings 
of  the  committee  and  their  arguments,  and  be  better 
able  to  answer  them  if  wrong,  than  if  called  upon 
at  the  moment,  without  understanding  them  clear- 
ly. All  would  then  be  better  prepared  to  arrive  at  a 
safe  and  wi  ;e  conclusion.  This  was  the  course 
adopted  by  ail  legislative  bodies,  and  this  was  the 
course  he  desired  the  Convention  to  take.  He 
could  not  perceive  the  distinction  which  the  gen- 
tleman from  Chautauque  (Mr.  MARVIN)  had  at- 
tempted to  draw  between  this  and  other  legislative 
bodies,  as  regarded  the  action  of  the  committees. 
Here  as  there,  each  committee  had  a  distinct  sub- 
ject to  act  upon,  whether  brought  before  them 


by  petition  or  resolution, 
subject   was  gone   throu 


In  the  Legislature,  the 
;h   with,  and  examined 


with  deliberation  and  care,  and  then  the  commit- 
tee brought  in  their  report  upon  it,  justifying  their 
conclusions.  Now  in  the  Convention  a  commit- 
tee would  be  raised,  perhaps,  on  the  same  subject, 
and  why  should  they  not  report  the  result  of  their 
deliberations  in  the  same  way  ?  He  could  not 
perceive  any  distinction  in  the  two  cases,  himself, 
and  he  thought,  for  the  benefit  of  the  action  of 
the  Convention  itself,  as  well  as  the  people,  it 
ought  to  conform  to  the  uniform  rule.  He  re- 
peated, that  there  was  no  danger  of  the  people 
being  misled  by  these  reports  ;  and  they  might 
as  well  go  forth  to  them  a.s  such,  as  in  the  shape 
of  speeches.  While,  with  reference  to  the  action 
of  the  Convention,  we  could  not  have  the  benefit 
of  these  printed  speeches  ;  the  only  way  we  could 
get  it  would  be  orally,  in  the  hasty  progress  of 


the  debate.  He  wanted  this  information  in  a 
permanent,  deliberate,  reflective  way  ;  as  perma- 
nent as  the  substantial  arguments  of  the  men 
who  made  them.  Now  it  was  often  found  that 
speeches  were  inaccurately  reported,  or  a  person's 
meaning  misunderstood,  not  from  a  want  of  care 
on  the  part  of  the  reporters,  but  often  from  an 
inability  to  hear.  How  this  question  was  to  be 
disposed  of  was  immaterial  to  him  ;  but  he  felt 
bound  to  submit  the  views  he  entertained  upon 
the  subject. 

Mr.  WATERBURY  was  in  favor  of  giving 
the  committees  discretionary  powers  in  this  mat- 
ter. He  repelled  the  idea  that  these  reports 
were  to  be  considered  as  binding  and  unalterable 
laws  in  their  influence. 

Mr.  NICHOLAS  was  unwilling  to  prolong  the 
discussion  at  this  late  hour,  but  it  appeared  to 
him  that  the  manner  in  which  this  resolution 
should  be  disposed  of,  must  have  an  important 
bearing  on  the  only  question  that  every  gentle- 
man had  in  view,  which  was  to  secure  to  every 
member  the  greatest  possible  freedom  of  thought 
and  action,  and  a  most  judicious  and  wholesome 
result  ultimately,  to  our  deliberations.  He  would 
not  at  this  late  hour  think  of  reviewing  all  the 
reasons  that  had  been  assigned  by  gentlemen  in 
favor  of  the  adoption  of  this  resolution,  or  tres- 
passing upon  the  time  of  the  Convention,but  it  ap- 
peared to  him  that  they  were  two  strong  and  con- 
trolling ones — one  of  which  had  been  only  par- 
tially stated,  and  the  other  had  not  been  refer- 
red to  by  any  gentleman  who  had  opposed  the 
consideration  of  the  resolution.  The  first  was 


portunity  for  others  to  present  their  views.     The  Ithat  alluded  to  by    the  gentleman  from  Madison. 

:**  lji__il  •l-.fil-rmi.  n  ,1  i          •  •  ,1 


behind    the     instru- 
that    influenced    the 


That  not  only  the  people  in  coming  to  the 
discussion  on  the  question  of  the  adoption  of  the 
Constitution  might  look 
ment  itself  for  reasons 
Convention,  but  that  the  tribunals  might  also 
be  influenced  by  those  reports.  The  venerable 
gentleman  from  Dutchess,  (Mr.  TALLMADGE,) 
himself  had  used  this  as  an  argument  against; 
written  reports  in  the  last  Convention.  He  would 
now  allude  to  another  reason  which  had  not  been 
referred  to  here  at  all,  and  which  if  he  did  not 
consider  it  a  most  conclusive  one,  he  should  not 
now  refer  to.  Almost  every  member  had  had 
something  to  say  to-day  of  the  danger  lay  mem- 
bers, who  were  unaccustomed  to  public  speaking 
would  be  exposed  to,  of  an  undue  bias  by  the 
very  able  members  of  the  committee, — and  he 
was  equally  apprehensive  of  the  effect  of  the  re- 
ports upon  the  minds  of  the  members  themselves. 
He  feared  that  they  would  be  so  strictly  wedded 
to  their  opinions,  that  their  minds  would  not  be 
as  open  to  arguments  as  they  should  be.  They 
may  be  unconsciously  influenced  in  this  way. — 
There  would  be  perfect  freedom  of  discussion  in 
committee  of  the  whole,  and  there  every  member 
of  a  committee  might  freely  and  fully  assign  his 
reasons  for  his  conclusions  as  reported,  and  at  the 
same  time,  if  it  became  proper  and  necessary,  he 
would  be  much  less  embarrassed  in  changing  hia 
views. 

Mr.  RUSSELL  asked  Mr.  N.  to  give  way,  the 
hour  ot  adjournment  having  arrived 

Mr.  NICHOLAS  assented. 

Leave  of  absence  was  granted  to  Mr.  SHELDOW 
for  one  week. 


138 


Mr.  RUSSELL  then  moved  an  adjournment, 
•which  was  carried,  and  then  the  Convention. 
Adj.  to  11  o'clock  to-morrow  morning. 

TUESDAY,  (20th  tJay}  June  23. 

Prayer  by  the  Rev.  Mr.  CI.APP. 

A  REQUEST  TO  BE  EXCUSED. 

Mr.  PERKINS  rose  immediately  after  the  min- 
utes were  approved,  and  asked  to  be  excused 
from  serving  on  the  committee  to  which  he  had 
been  appointed  yesterday,  relative  to  taxing  the 
personal  property  of  a  man  doing  business  in  one 
town  or  city,  and  resident  of  another.  He  said 
that  it  was  true  as  had  often  been  remarked,  that 
a  ^proposition  should  not  be  sent  to  any  com- 
mittee where  the  members  of  it  were  straight  out 


in  this  Convention  they  were  bound  by  the  rules 
of  what  was  termed  legislative  courtesy,  so  that 
the  mover  of  every  proposition  should  be  placed 
at  the  head  of  the  select  committee  that  had  to 
consider  it.  And  he  did  not  think  that  any  of 
the  standing  or  select  committees  had  made  up 
their  minds  on  important  questions  in  advance; 
or  upon  these  subjects  that  incidentally  came  up 
and  were  sent  to  them.  By  no  means.  Their 
business  was  and  would  be  to  meet  and  deliber- 
ate with  calmness  and  prudence  and  candor ; 
using  their  best  judgment  in  discussing  the  mat- 
ter and  in  arriving  at  their  conclusions ;  and  he 
thought  it  the  most  advisable  that  but  as  few 
amendments  should  be  made  to  the  Constitution 
as  was  consistent  with  the  best  interests  of  the 
whole  community  in  this  State.  There  should  not 


opposed  to   such   propositions.     He   was  in  this  -be  the  slightest  tinge  of  partizanship  or  sectarian 
position  ;  he  was  opposed  to  the  resolution.     He   feeling  throughout  the   entire  matter ;  this  is  a 
considered  it  a  subject  of  legislation,  not  of  Con- 
stitutional action ;  and  he  should  not  (in  addition 


to  other  heavy  duties)  have  confidence  enough  in 
himself  to  go  to  work  to  help  make  a  system  of 
taxation  that  was  to  be  considered  as  a  matter  of 
permanent  law.  And  as  it  has  been  considered 
inexpedient  by  the  Convention  for  the  several  stan- 
ding and  special  committees  to  make  written 
reports,  giving  the  reasons  why  they  might  pre- 
sent or  reject  certain  propositions,  he  could  not 
see  what  a  committee  had  to  do,  unless  to  report 
in  accordance  with  this  matter  which  had  been 
assigned  them,  or  to  prepare  members  to  debate 
these  questions  that  arise ;  and  for  his  part  he 
could  not  report  in  favor  of  these  resolutions  and* 
he  did  not  want  to  be  in  a  minority  in  the  matter, 
and  not  be  able  to  give  the  reasons  for  coming 
to  such  a  conclusion.  Here,  for  instance  is  a  pro- 
position sent  to  a  committee  to  be  considered ; 
and  if  there  is  any  reason  in  the  matter  at  all,  or 
the  result  of  L,  it  will  be  because  the  committee 
are  enabled  to  present  the  information  they  acted 
on  and  the  reason  for  their  conclusions ;  now,  if 
they  have  no  information  on  the  subject  commit- 
ted to  them,  and  are  not  allowed  to  give  any  rea- 
sons, why,  then  there  is  no  use  to  refer  any  of 
these  propositions  to  a  select  committee.  And, 
therefore,  gentlemen  who  have  any  of  these  pro- 
positions to  offer  had  much  better  offer  them  in 
the  Convention  and  have  a  vote  taken  on  them  at 
once  without  the  trouble  of  sending  them  to  a 
committee  to  report  upon.  He  did  not  want,  to 
debate  the  question.  But  he  had  another  reason 
for  declining  to  serve.  There  was  another  sys- 
tem of  taxation  which  had  been  presented  by  the 
gentleman  from  Monroe,  (Mr.  STRONG,)  and  if 
this  committee  was  to  be  raised,  that  gentleman 
ought,  as  a  matter  of  right,  to  be  put  on  that  com- 
mittee, so  as  to  nurse  his  own  bantling,  and  bring 
it  strong  and  healthy  into  the  Convention.  (A 
laugh.)  And  he  therefore  moved  to  be  excused, 
and  that  gentleman,  (Mr.  STRONG)  should  be  put 
in  his  place.  And  he  had  still  another  reason, 
the  mover  of  the  original  resolution  on  this  sub- 
ject, (Mr.  CHATFIELD)  had  been  left  oft' the  com- 
mittee at  his  own  request;  and  he  (Mr.  PERKINS) 
did  not  like  to  be  made  the  scape  goat  for  others 
under  these  circumstances. 

Mr.  STOW  hoped  the  gentleman  would  not  be 
excused;  aTid  for  the  very  reasons  he  had  assigned, 
in  asking  thi£  favor.  He  did  not  consider  that 


subject  of  vast  and  vital  importance  to  all;  and 
the  committees  should  be  very  careful  and  decide 
which  among  the  various  propositions  that  have 


been  or  shall  be  submitted  to  them  are  fit  subjects 
of  legislation,  and  which  are  not;  what  should 
be  engrafted  permanently  on  the  Constitution, 
and  what  should  not.  There  should  be  no  con- 
fusion on  these  points.  And  nothing  alarmed 
him  so  much  as  the  fear  that  attempts  would  be 
made  to  fasten  too  many  of  these  new  proposi- 
tions on  the  present  Constitution.  And  he  felt 
thus  from  seeing  now  on  the  few  first  days  of  the 
Convention  the  discussion  going  on  for  hours  and 
hours,  and  day  after  day,  about  things  that  really 
were  only  matters  of  form.  He  wished  this  all 
avoided.  And  he  hoped  the  gentlemen  from  St. 
Lawrence,  would  be  retained  on  the  committee; 
oped,  desired,  and  wanted  the  great  advan- 


tage of  that  gentleman's  large  experience  and 
ability;  they  wanted  the  sound  judgment  of  all 
such  in  the  deliberations  of  the  various  commit- 
tees ;  so  that  it  might  be  decided  permanently 
what  ought  to  be  engrafted  on  the  Constitution, 
and  what  was  only  a  fit  subject  for  legislation  ;  so 
that  this  might  then  remain  eternally  fixed  as  the 
firmament  of  heaven. 

Mr.  STRONG  did  not  by  any  means  so  under- 
stand the  rule  in  this  matter  to  be  such  as  to 
require  that  all  of  the  members  of  a  committee 
should  be  in  favor  of  the  propositions  (a  laugh) 
submitted  to  them  ;  for  if  it  did,  it  might  be  a 
little  difficult  sometimes  to  get  their  committees 
filled  up.  But  he  had  rather  thought  that  in 
standing  committees  both  sides  should  be  repre- 
sented, so  that  the  opposing  views  of  gentlemen 
should  be  brought  together.  And  this  was  a  wise 
and  salutary  arrangement ;  and  was  the  rule  as 
generally  adopted.  As  to  excusing  the  gentleman 
from  St.  Lawrence,  (Mr.  PERKINS,)  he  hoped  it 
would  not  be  done  by  any  means.  He  was  the 
very  best  selection  that  could  have  been  made  for 
that  work  ;  his  wisdom,  his  experience,  and  his 
great  talent  all  convinced  him  (Mr.  STRONG) 
that  he  was  the  most  proper  man  in  all  the  house 
to  serve  on  that  committee. 

Mr.  PERKINS  must  differ  widely  with  the 
last  speaker.  That  gentleman  had  submitted  an 
able  plan  for  a  system  of  taxation,  and  no  man 
would  offer  such  a  proposition  to  be  engrafted  in 
the  Constitution  who  had  not  deeply  studied  the 
subject  in  ail  its  bearings;  and  for  this 


139 


the  experience,  the  talent  and  the  wisdom  of  the 
gentleman  from  Monroe  (Mr.  STRONG)  all  pointed 
him  out  as  the  very  man  of  all  others  to  serve  on 
this  Committee.  [Laughter.]  Now  as  two  com- 
mittees of  course  would  not  be  raised  on  this 
question  of  taxation,  that  gentleman  ought  to 
have  a  place  on  this  committee,  and  then  he 
could  properly  give  his  reasons  to  the  commit- 
tee for  oilering  his  system  to  it.  He  did  not 
think  it  all  right  to  put  men  on  a  committee  to 
consider  propositions  they  were  known  to  be 
opposed  to,  and  then  shut  up  their  mouths  and 
tie  up  their  pens,  and  not  allow  them  to  give  any 
reasons  for  the  conclusions  they  come  to.  And 
as  his  known  modesty  [laughter]  was  almost 
equal  to  that  of  the  gentleman  from  Monroe  (Mr. 
STRONG)  he  felt  great  delicacy  on  on  this  sub- 
ject, and  most  certainly  ought  to  be  excused. 

Mr.  STRONG  said  that  the  gentleman  from 
St.  Lawrence  evidently  begged  a  part  of  the 
question.  His  resolution  as  to  a  system  of  taxa- 
tion, had  not  yet  been  sent  to  any  committee.  — 
It  might  never  be  sent  to  any  committee,  or  it 
might  be  sent  to  a  different  committee  from  the 
one  which  the  gentleman  from  St.  Lawrence  was 
on,  and  probably  would.  But  at  present  it  laid 
on  the  table  ;  it  might  never  be  called  up.  So 
the  gentleman  need  not  borrow  any  trouble  in  ad- 
vance ;  for  trouble  always  came  fast  enough, 
without  borrowing  any  of  it  in  advance. 

The  question  was  then  put  and  the  Convention 
refused  to  excuse  Mr.  PERKINS. 

VALUE  Of  CANALS,  PUBLIC  LANDS,  &c. 
Mr.  F.  F.  BACKUS  presented  this  : 
Resolved,   That  the  Comptroller  be  requested  to  furnish 
for  the  u»e  of  the  Convention  thblullowing  statements  and 
estimate.-  : 

1st.  The  value  of  the  Erie  and  Champlnin  canals  on  the 
fist  day  of  January,  1S46,  estimating  tli.-  value  at  such 
sum  as  thf  rtettyroceetisof  the  t^iis  oiw  revenues  of  those 
ca..au  or  th  •  s-u-ono;  1845  w^uld  pay  the  interest  at  6 
|«r  cent,  after  deducting  the  expanses  of  collection,  co»t 
of  suptrint-  D  !<n  ce  aiid  r.  piirs  u  r  that  year. 

•2.  'ihe  ag(jrega  e  raim  ofalitue  canals,  upon  the  like 
basis,  that  is,  at:er  deducting  the  expenses  of  collection,  su- 
perimeui:cnce  and  n  pairs,  irom  the  gre-s  amount  of  tolls 
and  canal  revenue  lor  the  <-ea.-  on  oi  navigation  for  184,3, 
showing  upon  wh;)t  amount  otca,.ital  the  nett  pioceeds 
would  pay  tne  interest  at  d  per  ce.it. 

3.  i  he  aveiage  rate  or  (>«r  cerita-ie  'of  the  animal  in- 
crease of  the  toils  ol  all  the  canals  tor  the  last  ten  years, 
or  from  1836  to  Io4r/,  both  inclusive,  and  the  average  an- 
nual amouutofexp'  nditurts  for  collection  superintendence 


4.  The  aggregate  value  of,iilth«  canals  on  the  fir,  t  day 
of  January,  18,6,  upon  tne  supposition  that  there  will  be 
the  like  annu  1  average  inc;  ease  lor  the.  next  ten   years  ; 
or  upon  wh.-U  sum  the  nett  proceeds  of  the  toils  anu  ieve- 
nut  s  tor  1845,  would,  at  such  average  annual  increase  pay 
the  interest  at  6  pur  cent,  deducting  the  average  am.  Mint  ul 
annual  expenditu  e  lor  superiu  endence,    culle.  tion  and 
tepairs  for  that  year  from  the  gross  amount  01  canal  reve- 
nues. 

5.  An  account,   showing  what  would  be  the  nett  pro- 
ceeds or  earnings  of  all  the  canals  from  the  1st  J*n.,  1866, 
upon  the  supposition  that  the  canals  \veie  already  paid  lor, 
and  deducting  only  irom  year  to  year  the  aver.ge  amount 
ol  expenses  lor  collection,  Bupeiinteodr  nee  and  lepairs  for 
the  last  ten  years,  compounding  the  interest  from  year  to 
year,  upon  the  nett  proceeds  lor  the  coining  ten  years,  at 
6  p.er  cent 

6.  The  like  calculation  and  estimates   computing   only 
•imple  inteiest  at  5  percent. 

7  The  aggregate  valuation  of  real  and  personal  estate  in 
the  several  couiuies  ol  this  State  at  the  time  ot  the  comple 
tion  of  the  Lne  and  Champion  canals.     '1  he  present  valu- 
ation, and  the  average  annual  rate  per  cent  of  increase  for 
this  period. 

8  The  estimated  present  value  of  the  public  property 


olthe  State,  including— 1st,  all  the  canals,  estimating  th« 
same  as  directed  under  tie  4th  head  as  above;  2d,  the  cap- 
ital of  the  school  iiind;  3d.  the  capital  of  the  literature  fund; 
4  h,  the  United  States  dfposite  lurid;  5th,  the  several  pub- 
lic buildings  am  grourus  appurtenant,  belonging  to  the 
State,  whoever  situated,  estimating  the  same  .it  cost,  and 
showing  tne  a^gie^ate  amount  ol  all. 

Mr.  LOOMIS  said  he  should  very  much  like  to 
examine  that  resolution,  and  he  therefore  hoped 
the  mover  would  let  it  lie  over  for  a  day. 

Mr.  BACKUS  consented  to  do  so. 
BANKS  OF  THL:  STATE. 

The  PRESIDENT  presented  a  communication 
from  the  Comptroller  in  answer  to  the  resolution 
of  enquiry  sent  to  him  relative  to  the  condition  of 
the  Banks  of  this  State. 

On  motion  of  Mr.  TOWNSEND,  it  was  order- 
ed to  be  printed,  and  referred  to  the  committee 
on  Banking,  of  Which  Mr.  CAMBRELENG  is  Chair- 
man. 

FLANS  ROR  JUDICIARY  SYSTEM. 

Mr.  SHAW,  of  Cayugua,  presented  a  new  plan 
for  a  judiciary  system. 

Mr.  WITBECK,  of  Rensselaer,  also  presented 
a  plan  having  the  same  object. 

Both  were  refered  to  the  judiciary  committee. 
THE  TRANSMISSION'  OF  BILLS,  &c. 

Mr.  NICOLL  presented  a  resolution  that  the 
committee  on  Legislation,  enquire  into  the  pro- 
priety of  prohibiting  the  legislature  from  trans- 
mitting bills  from  one  Branch  of  the  legislature  to 
the  other  branch  within  a  certain  number  of  days 
before  the  day  of  adjournment.  It  was  referred. 

ROYAL  CHARTERS,  GRANTS,  TENURES,  &c. 

Mr.  MURPHY  said  that  he  had  a  day  or  two 
since  ottered  certain  resolutions  relative  to  Royal 
Grants,  Charters,  &c. ;  he  consented  then  to  have 
them  laid  on  the  table,  at  the  request  of  the  gen- 
tleman from  Columbia,  (Mr.  JORDAN)  and  he  now- 
moved  to  take  them  up.  They  were  taken  up 
and  are  as  follows  : 

Resolve  t,  1  hat  it  be  referred  to  the  following  commit- 
tees to  inqu-reinto  the  expediency  of  striking  out  of  the 
Cons1  itution,  as  useless  and  unnecessary,  and  liable  to 
misconstruction,  as  follows  :— 

1.  To  the  committee  on  the  creation  and  division  of  es- 
tates in  lands,  so  much  oi  the  Constitution  as  declares  that 
nothing  contained  therein  shall  efl'ect  any  grants  of  lands 
within  tins  State,  made  by  the  King  of  Great  Britain  or  his 
predecessors,  before  the  14th  of  October,  1775  ;  or  *hall  af- 
lect  any  such  grants  since  made  by  this  State,  or  by  per- 
sons acting  under  its  authority 

2  To  the  committee  on  the  organization  of  cities  and 
villages,  so  mu.-h  as  declares  that  nothing  contained  there- 
in shall  annul  any  charters  to  liodies  politic  or  corporate 
by  the  said  King  or  his  predecessors,  maue  before  the  said 
day,  or  shall  atf'.;ct  any  su  h  charters  since  made  by  thia 
State,  or  hy  persons  acting  und.  r  its  authority. 

Mr.  MURPHY  said  that  at  the  time  he  offered 
these  he  was  somewhat  in  doubt  as  to  the  appro- 
priate committee  for  their  reference,  or  as  to  the 
propriety  of  the  reference  there  indicated  ;  which 
reference  he  now  thought  should  be  to  the  com- 
mittee on  the  rights  and  privileges  of  citizens,  for 
the  clauses  to  be  struck  out  were  in  that  part  of 
the  Constitution  referred  to  that  committee.  And 
there  was  also  another  reason  why  he  wished  the 
reference  changed;  of  one  of  the  committees 
named  in  the  proposition  (the  2d)  he  himself  was 
the  chairman  ;  he  wished  the  preliminary  exami- 
nation to  be  made  by  others,  and  he  therefore 
wished  them  referred  to  the  committee  on  rights 
and  privileges,  (No.  11.)  He  would  offer  a  sub- 
atitute  for  these  resolutions  making  tba.t  refer* 


140 


ence,  and  also  to  further  define  the  object  which  j  Mr.  SHEPHERD  said  there  was  a  very  clear 
he  had  in  view.  He  wished  the  proposed  sub-  and  important  alteration— ir!  the  last  from  the  first 
stitute  to  read  thus  : —  proposition  ;  the  latter  proposes,  or  urges  an 

Resolved,  That  it  be  referred  to  the  committpe  on  the  !  amendment  to  the   Constitution   in  terms;  there 


is  a  very  great  difference. 

Mr.  MURPHY   said  that  the  gentleman  (JoR- 
was  right — it  only  referred  that  to  one  corn- 


rights  and  privileges  of  the  citizens  of  this  State,  to  inquire 

into  the  expediency  of  striking  out  so  much  of  the  four- 

teenih  section  of  article  7  of  the  Constitution  as  declares, 

that  "nothing  contained  in  this   Constitution  shall  attect 

any  grants  ot  land  within  this  State,  made  by  authority  ot  j  mittee,  which  before  was  proposed    to  be  sent   to 

the  said  king   (of  Great  Britain)   or  his  predecessors,  or  !  two 

bytmTllS:  ±f  before  tLtLr/o-hanSTa?y       The  question  was  then  put  and  it  was  reconsi- 

such  grants  since  made  by  this  State,  or  by  persons  acting    dered. 

under  its  authority,"  as  useless  and  unnecessary,  and  liable         Mr.    SHEPARD    moved   to   lay   it  on  the  table 

to  .popular  misconstruction;  and  of  otherwise  amending    and  Drint  it 

the  said  section  so  that  the  same   hall  read  ar  follows: —  •*/[      i\,TTTr>r>tr-\r          u       L  j  ^       A-U    /~i 

«  §  All  grants  of  land  within  this  state  made  by  the  king  ,  Mr  MURPHY  would  not  delay  the  Convention, 
of  Great  Britain  or  persons  acting  under  his  authority,  af- 1  but  the  gentleman  from  New-York,  (Mr.  SHEP- 
ter  the  fifteenth  day  of  October,  one  thousand  seven  hun- j  ARD,)  entirely  misapprehended  the  resolution 
dred  seventy-five,  shall  be  null  and  void  ,  but  nothing  con-  |  wnich  he  had  now  proposed  as  a  substitute.  It 


tained  in  this   Constitution  shall  impair  the  obligation  of 

any  debt  or  contract  or  any  other  rights  of  property,  or    merely  proposed  that  to  one    committee,    which 

any    suits,    actions,  rights  of  actions,  or  proceedings  in 

•courts  of  justice." 


The  CHAIR  put  the  question  and  declared  it 
to  be  carried. 

Mr.  TOWNSEND  thought  there  had  been  a 
mistake  about  this ;  the  house  had  not  understood 
it  clearly ;  he  supposed  that  the  question  was 


before  he  had  desired  to  send  to  two.  With  an 
addition  (not  substantive,  but  merely  in  form,) 
providing  that  section  14  of  article  7,  should  read 
in  this  as  it  would  read  in  the  Constitution,  if  the 
amendments  he  proposed  were  carried,  and  the 
provisions  enumerated  were  stricken  out  of  it. — 
This  was  the  only  alteration ;  and  he  put  it  to  the 

TT  li_l  'j_  A          IT*  1 


merely  on  receiving  the  substitute  for  the  origin-  1  House  whether   it  was  courtesy  to  him  to  have 
al,  and  not  on  adopting  it.     And  he  hoped  the 
Chair  would  decide  that  this  was  the  case,  for  it 
was  a  very  important  matter,  and  involved  char- 
tered-rights of  great  magnitude  ;  it  ought  not  thus 


1  o  pass  off  and 


e.  printed.     He  hoped  it 


.. 

would  be  printed  that  thety,,might  examine   and 
consider  it. 

Mr.  SHEPARD  did  not  certainly  understand 
it  as  any  thing  but  merely  the  reception  of  the 
substitute—  not  as  a  question  of  reference.  He, 
Jor  one,  wished  this  proposition  to  be  printed  be- 
fore it  was  referred.  It  involved  a  great  princi- 
ple ;  and  perhaps  extensive  infringements  of 
vested  rights  of  property.  He  did  not  suppose 
that  the  gentleman  (Mr.  MURPHY)  meant  any 
thing  of  this  kind  ;  but  such  might  be  the  result  ; 
it  was  treading  exceedingly  close  on  that  line 
where  a  great  deal  of  mischief  might  be  done  by 
-a  ialse  step.  He  therefore  moved  to  lay  it  on  the 
table  and  to  print  it. 

Mr.  WARD  said  that  the  question  having  been 
ptit  anxl  adopted,  all  debate  thereon  was  out  of 
order. 

Mr.  TOWNSEND  then  said  that  he  would 
relieve  the  question  of  all  difficulty  on  this  head, 
l>y  moving  to  reconsider  the  question  ;  and  he 
xlid  hope  that  the  Convention  would  under  the 
circumstances  consent  to  reconsider  it. 

Mr.  MURPHY  said  certainly  ;  he  hoped  him- 
se^f  that  the  Convention  would  allow  it  to  be  re- 
cons  idered. 

The*  PRESIDENT  said  that  it  would  lay  as  the 
original  proposition  did  ;  as"  adopted  and  on  the 
table,"  u  nless  unanimous  consent  was  given. 

Mr.  TALLMADGE  said  that  where  it  was  ve- 
ry apparent  there  had  been  a  miss-vote,  he  urged 
that  the  Chair  would  put  the  question  again  ;  es- 
pecially in  a  matter  of  this  importance,  where 
there  had  been  a  mistake  made,  and  yet  no  blame 
could  be  attached  anywhere. 

Mr.  SIMMONS  hoped  it  would  be  printed. 

Mr'.  JORDAN  said  that  there  was  no  alteration 
in  the  matter  of  the  substitute  ;  it  was  merely  a 
change  of  reference. 


this  lie  on  the  table,  alter  he  had  let  it  lie  there 
several  days  already. 

Mr.  SWACKHAMER  moved  to  take  the  ques- 
tion on  printing  first. 

The  committee  finally  voted  to  lay  it  on  the 
table,  and  to  have  it  printed. 

ASSESSMENTS  AND  TAXES. 

Mr.  HARRIS  presented  this  :— 

Resolved,  That  it  be  referred  to  committee  No.  2,  to  in- 
quire into  the  propriety  01  inserting  in  the  ConstitUiion  the 
lollowing  provisions:  The  Legislature  shall  provide  by  law 
a  uniform  rule  of  assessment  and  taxation  lor  the  several 
counties  in  this  Sta.te,  tnd  shall  prescribe  fcuch  regulations 
as  will  secure  a  due  valuation  of  all  property,  both  real  and 
personal;  the  estimates  of  real  estate  to  be  rmuie  on  its  ac. 
tual  and  intrinsic  value,  as  near  as  the  same  can  be  deter- 
mined at  the  time;  and  that  County  Clerks  and  Registers 
in  Cities  shall,  upon  the  requisition  of  the  assessors  of 
towns,  and  those  ot  wards  in  cities,  make  annually, by  th  e 
first  day  ol  June,  full  returns  ot  all  mortgages,  liens  and  in  „ 
cumbrances  on  the  real  estate  situate  in  their  respective 
towns  and  wards,  to  enablethe  assessors  justly  to  appor- 
tion equalize  and  assess  the  same. 

Adopted.         •    , 

SALARIES  OF  STATE  OFFICERS. 

Mr.  SALISBURY  offered  this  : 

Resolved,  That  the  third  standing  committee  be  instruc- 
ted to  inquire  into  the  expediency  of  making  provision  in 
the  Constitution,  that  in  all  cases  where  a  salary  is  given 
to  any  officer  in  this  State  as  a  compensation  for  his  ser- 
vices, that  no  extra  compensation  shall  be  allowed  to  such 
officer,  for  any  purpose  or  under  any  pretence  whatever. 

Adopted. 

<»  PEOPLE'S  RESOLUTION." 

Mr.  SHAW  offered  this : 

Resolved,  That  the  committee  (No.  three)  on  canals, 
internal  improvements,  public  revenue,  &c.  be  directed  to 
inquire  into  the  expediency  of  incorporating  into  the  Con- 
stitution  of  this  State  the  People's  Resolution  (so  called) 
and  the  pledges  and  guaranties  of  the  act  of  1842,  entitled 
•'  Art-act  to  provide  lor  paying  the  debt  and  preserving  the 
credit  of  the  State." 

Adopted. 

APPOINTMENT  OF  JUDGES. 
Mr.  STOW  offered  this  : 

Resolved,  That  the  judges  of  courts  ftf  record  shail  bo 
appointed  in  the  following  manner — 


i 


141 


The  State  shall  be  divided  into  not  less  tl.au  six,  nor 
more  than  ten  districts  containing  as  ne:irh  as  may  be, 
without  dividing  a  senate  district,  an  equui  number  of  peo- 
ple. 

The  governor  shall  nominate,  and  by  and  with  the  fid. 
vice  and  consent  of  two-thirds  of  all  the  senators  elected, 
of  whom  there  shall  always  be  one  vote  1'rom  each  dis- 
trict, appoint  th«>  judges. 

Jn  case  th«  senate  shall  not  confirm  the  nomination  of 
the  governor,  when  he  shall  have  submitted  two  nomina- 
tion<  for  one  vacancy,  the  senate  sliall  proceed  to  appoint 
a  .judge  to  supply  "such  vacancy.  Each  senator 
(without  debate)  n  .m«  a  person,  and  from  the  two  persons  j 
named  by  the  largest  number  of  senators,  the  senate  shall  j 
determine,  by  lot.  which  one  sliall  be  appointed. 

Mr.  STOW  said  that  this  was  an  affirma- 
tive proposition,  and  if  adopted  would  be  de- 
claratory of  the  sense  of  the  Convention  on  this 
subject.  He  did  not  intend  to  call  it  up  at  that 
time;  but  he  merely  wished  to  propose  to  the 
Convention  (and  through  them  to  call  the  people's 
attention  to  it)  a  plan  for  electing  Judges  differ- 
ent from  the  only  two  plans  he  had  seen  proposed. 
Gentlemen  seem  to  consider  it  a  settled  theory 
that  there  is  no  alternative  in  this  matter  of  ap- 
pointing judges,  between  the  present  plan  of  ap- 
pointing by  Governor  and  Senate,  and  their  ap- 
pointment directly  by  the  people.  And  indeed 
it  has  been  said  tnat  the  people  have  already  dis- 
tinctly decided  that  Judges  should  be  elected  di- 
rectly by  their  votes.  He  did  not  consider  that 
this  was  so ;  he  did  not  believe  the  people  had  said 
any  such  tiling,  and  moreover,  he  thought  that 
the  people  would  be  very  slow  to  come  to  this  de- 
cision ;  and  that  they  would  pause  a  great  while 
and  deliberate  long  and  cautiously  before  they 
made  this  great  change  in  a  fundamental  princi- 
ple of  the  government.  He  doubted  very  much 
whether  the  people  would  decide  to  elect  even 
jurors  by  the  popular  vote  ;  much  less  to  elect 
the  judges.  He  would  not  debate  the  question, 
then,  but  he  merely  wished  to  call  serious  atten- 
tion to  this  plan  ;  he  had  offered  this  proposition 
for  the  selection  of  Judges,  by  which  the  people 
would  have  a  very  decided  voice  in  selecting 
them.  He  did  not  believe  any  mere  majority  of 
the  people  either  by  a  direct  vote  or  through 
their  representatives  should  create  the  judiciary 
of  the  State  ;  the  minority  (for  whose  benefit  this 
branch  is  established  perhaps  more  than  for  any 
other)  should  have  a  decided  voice  in  the  matter ; 
they  sfiould  be  heard.  And  he  hoped  the  people 
would  bear  in  mind  the  wide  and  decided  distinc- 
tion between  the  Executive  and  legislative 
powers,  and  the  judiciary.  A  majority  elect  the 
legislature  and  executive ;  and  the  reasons  for  this 
•arc  very  obvious.  But  a  very  different  mode  of 
selecting  the  Judges  should  be  adopted.  They 
are  as  the  shield  of  the  minority  ;  to  protect 
from  the  oppression  (if  tried)  of  the  ma- 
jority. Again  it  was  desirable  that  all  parts 
ot  the  State  should  have  a  voice  in  deciding  who 
are  to  form  the  Judiciary  and  how  thev  are  to  be 
elected;  all  the  different  localities  of  the  State 
and  particularly  the  minority  should  be  heard  in 
this  matter,  especially  about  the  courts  of  gen- 
eral jurisdiction.  He  had  drawn  up  his  proposi- 
tion with  a  view  to  effect  this  ;  that  those  at  the 
•  when  they  went  to  New- York  to  have  their 
rights  determined  should  be  able  to  know  that 
their  constituents,  or  in  fact,  themselves— had 
had  something  to  do  and  say  about  the  judges  and 
court,  before  whom  their  rights  were  to  be  inves- 


tigated. By  his  proposition  it  would  be  impossi- 
ble to  have  partrzans  on  tlie  Bench.  It  would 
tend  to  call  men  from  the  walks  of  private  life  to 
a  seat  on  the  Bench — good  men  of  moderation, 
prudence  and  talent;  something  other  than  mere 
political  partisans.  It.  was  opposed  to  the  two 
equally  dangerous  extremes,  of  appointment  by 
Governor  arid  Senate,,  or  else  by  the  popular  vote. 
Both  were  wrong.  By  his  plan  the  two  leading 
parties  must  concur  in  a  choice ;  and  they  would 
be  compelled  to  select  moderate  men, and  men  of 
ability,  lie  did  not  intend  to  argue  the  question. 
He  intended  merely  to  lay  the  proposition  on  the 
table  and  te  have  it  printed  ;  that  members  could 
have  something  else  besides  the  two  extreme 
modes  of  selecting  judges  of  which  he  had  already 
spoken,  to  reflect  on.  He  moved  to  print  it. 

Mr.  PATTERSON  said  he  wished  to  make  an 
amendment  to  this,  and  also  to  offer  some  few  re- 
marks ;  as  he  understood  that  this  was  intended 
by  the  gentleman  from  Erie  (Mr.  STOW)  to  draw 
out  the  sense  of  the  Convention  as  to  the  rule  of 
appointment  indicated  in  the  proposition;  that 
this  was  not  a  mere  resolution  of  inquiry,  but  one 
prescribing  that  the  mode  of  appointment  should 
be  as  here  laid  down.  Now  he  was  not,  for  one, 
prepared  to  say  that  the  people  of  this  State  were 
incompetent  to  elect  the  judges  of  their  courts. 
For  he  believed  that  they  are  as  capable  of  doing 
this,  as  of  electing  a  President  or  Vice-president 
of  the  U.  S.,  or  a  Governor  or  Lieutenant-Gover- 
nor of  the  State  of  New- York,  or  any  other  State. 
He  was  opposed  to  having  the  judiciary  a  mere 
political  machine  ;  he  wanted  to  strip  the  power 
of  appointing  the  judges,  at  once  and  entirely, 
from  the  Executive ;  and  he  would  not  consent 
that  this  power,  which  had  been  left  in  the  Go- 
vernor's hands  for  25  years,  should  be  left  there 
any  longer.  How  were  these  judges  appointed 
at  present  ?  The  Constitution  truly  confers  that 
power  on  the  Governor  and  Senate  ;  but  do  they 
exercise  it,  in  reality  ?  Certainly  not.  T^e  judges 
of  county  courts  are  not  thus  appointed.  Practi- 
cally, they  are  appointed  by  a  caucus ;  and  this  is 
held  in  the  county  where  the  judges  are  to  offi- 
ciate :  the  people  there  get  together  in  a  caucus  : 
make  nominations  for  the  office  of  judges,  and 
then  send  these  names  in  to  the  Governor.  Well, 
who  ever  knew  a  Governor  to  refuse  to  send  in 
these  very  names  to  the  Senate,  to  be  confirmed  ? 
And  when  have  we  had  a  Senate  that  refused  to 
confirm  these  caucus  nominations,  sent  to  them, 
thus  through  the  Governor  ?  When  one  political' 
party  has  the  Executive,  then  their  friends  follow 
this  phui,  and  their  men  are  appointed ;  and  so  it 
is  when  the  other  party  is  in  power:  they  make 
the  caucus  nominations,  and  that  is,  in  reality,  aa 
appointment.  He  remembered  the  case  some 
years  ago — in  1S34 — (he  had  told  the  story  to 
another  and  smaller  body  than  this,  and  in  this 
city) — some  persons  got  together,  in  Franklin 
county,  and  resolved  themselves  into  a  Democratic 
Republican  County  (.'(invention.  Mr.  A.  J3.  was 
made  Chairman,  and  Mr.  C.  D.,  Secretary  :  and 
alter  a  while  it  was  declared  unanimously  that 
Messrs.  E.  F.  and  G.  H.  had  a  majority  of  all  the 
votes  then  present  at  this  great  county  convention, 
and  they  were  then  unanimously  recommended 
therefor  to  Governor  MARCY  for  nomination  to 
the  Senate.  Thf.  proceedings  came  down  to- him.. 


142 


headed,  "  Proceedings  of  the  Democratic  Repub- 
lican County  Convention  of  Franklin,"  &c.,  arid 
so  on  :  and  Governor  MARCY,  seeing  the  words 
"  Democratic  Republican,"  naturally  supposed 
surely  they  were  all  right ;  that  was  strong  enough 
recommendation,  in  all  conscience,  for  him  :  and 
so  he  sent  in  these  two  names  to  the  Senate,  and 
they  were  confirmed.  And  it  turned  out  after- 
ward, upon  inquiry,  that  they  had  thus  appointed 
a  couple  of  whigs,  instead  of  a  couple  of  demo- 
crats. (Much  laughter.)  And  this  is  a  practical 
illustration  of  the  mode  of  appointing  these  judges 
that  has  been  in  operation  over  20  years.  He  did 
not  know  whether  any  similar  tricks  had  been 
played  on  other  Governors  :  but  it  is  enough  that 
the  Governor  swallows  whatever  is  sent  to  him 
in  this  kind  of  way.  They  might  assert  that  this 
was  not  the  way  the  judges  of  the  supreme  court 
got  their  appointment;  but  still,  he  wanted  them 
all  appointed  in  a  better  way  than  now.  The 
people  must  have  something  to  do  in  the  matter. 
They  ought  to  be  elected  directly  by  the  people. 
He  had  heard  no  good  argument  yet  against  this 
mode  ;  nor  did  he  believe  that  any  other  mode 
would  satisfy  the  people.  He  had  yet  to  hear  a 
good  argument  to  the  contrary  ;  and  he  did  not  be- 
lieve a  good  reason  could  be  given  on  it.  They 
were  now  discussing  this  very  subject  in  the  ju- 
diciary committee,  (of  which  he  was  a  member) 
and  probably  in  a  few  days  they  would  send  in  to 
the  Convention  some  plan  for  the  electing  of  the 
judiciary.  He  would  have  preferred  that  the 
committee  should  have  reported  before  there  was 
any  debate  on  the  subject :  but  as  this  plan  was 
thus  thrown  in  here,  he  rose  to  protest  against 
that  way  of  appointing.  He  was  opposed  to  the 
Governor  having  any  thing  to  say  or  do  about  the 
appointment  of  the  Judges  of  the  Supreme  Court 
or  any  of  the  other  Judges. 

Mr.  STETSON  said  he  did  not  wish  to  interfere 
in  it ;  but  he  should  like  to  know  if  this  discus- 
sion was  strictly  in  order. 

The  PRESIDENT  said  that  the  resolution  or 
proposition  Was  properly  under  the  consideration 
of  the  Convention. 

Mr.  STOW  said  he  had  not  there  in  the  Con- 
vention desired  to  discuss  this  point,  and  he  would 
merely  say  further  that  when  his  friend  from 
Chautauque  (Mr.  PATTERSON)  came  to  see  the 
resolution  in  print,  and  to  reflect  on  it,  and  un- 
derstand the  motives  that  had  influenced  him  in 
presenting  it,  that  he  would  find  he  had  entirely 
misunderstood  both.  He  would  therefore  renew 
his  motion  to  lay  on  the  table  and  print. 

Mr.  NICOLL  said  that  it  had  better  be  referred 
to  the  judiciary  committee. 

Mr.  STOW  said  that  would  not  at  all  answer 
~his  purpose. 

The  motion  was  then  put  and  carried. 

Mr.  WARD  said  that  as  he  had  the  gratifying 
intelligence  to  communicate  to  the  house,  that 
on  to-morrow  the  gentleman  from  New  York, 
(Mr.  MORRIS)  near  him,  would  be  prepared  to 
call  up  his  resolutions  in  relation  to  the  Executive, 
for  the  consideration  of  the  house,  and  as  there 
were  no  further  resolutions  to  be  offered,  he 
moved  that  the  Convention  do  now  adjourn. 

Mr.  CHATFIELD  asked  Mr.  WARD  to  with- 
draw it  for  a  few  minutes,  as  he  had  a  resolution. 

Mr.  W.  did  so. 


STATE  LIBRARIES. 

Mr.  CHATFIELD  offersd  a  resolution  that  the 
Sergeant-at-Arms  take  the  proper  measure  to  en- 
sure the  opening  of  the  State  Libraries  at  8  A.  M. 
during  the  sittings  of  the  Convention. 

Mr.  WORDEN  said  that  officer  had  no  power 
over  the  State  Libraries. 

Mr.  CHATFIELD  knew  this  ;  he  had  expect- 
ed that  by  merely  passing  this  resolution  here,  it 
would  have  the  effect  desired. 

Mr.  HARRIS  said  that  the  Librarian  was  so 
willing  to  accommodate  all,  that  a  mere  intima- 
tion was  sufficient  to  effect  the  object. 

Mr.  TILDEN  said  they  were  open  always  from 
9  A.  M.  to  4  P.  M.;  and  now  they  are  also  open 
from  4  to  9  P.  M. 

It  was  adopted. 

WRITTEN  REPORTS  OF  COMMITTEES. 

Mr.  NICOLL  moved  to  take  up  the  unfinished 
business  of  yesterday.  Carried. 

The  PRESIDENT  said  the  subject  under  con- 
sideration was  the  reconsideration  of  the  resolu- 
tion declaring  the  inexpediency  of  the  commit- 
tees making  written  reports  to  the  Convention. 

Mr.  NICHOLAS  had  the  floor.  He  said  that 
if  the  House  wanted  to  take  the  question  at 
once,  he  would  waive  his  right  to  the  floor; 
but  if  they  did  not,  he  would  make  a  few  remarks. 
He  then  went  on  briefly  alluding  to  the  arguments 
he  made  yesterday,  and  opposed  a  reconsideration.  • 

Mr.  BURR  said  he  ought  to  ask  pardon  of  the 
Convention  for  detaining  them  a  single  moment 
on  this  question ;  and  he  was  greatly  surprised 
that  a  matter  of  so  little  importance  had  drawn 
forth  such  a  long,  and  such  an  earnest  debate. — 
There  must  certainly  be  something  about  it 
which  he  could  not  now  see,  that  gave  it  so  much 
importance.  The  question  he  understood  to  be 
whether  they  should  rescind  the  resolution  they 
framed  the  other  day  or  not,  in  which  it  is  stated 
to  be  inexpedient  for  the  committees  to  send  in 
written  reports  or  arguments  with  their  resolu- 
tions. He  thought,  at  first,  that  it  was  of  very 
little  consequence  whether  they  passed  the  reso- 
lution or  not.  If  he  had  supposed  that  the  reso- 
lution was  intended  to  restrict  the  committees  al- 
together from  making  any  written  reports,  he 
would  have  opposed  it  at  first.  But  he, .did  not 
think  that  it  was  intended  to  restrict  or  cripple 
these  committees.  If,  as  he  supposed,  it  was  in- 
tended merely  as  an  advisory  resolution  express- 
ing the  wish  of  the  Convention  that  the  commit- 
tees should  exclude  all  extraneous  matter  from 
their  reports,  then  he  would  vote  for  it,  as  he  had 
done  before.  But  he  felt  now  puzzled  how  he 
should  vote.  He  was  inclined  yesterday  to  vote 
to  reconsider ;  as  he  supposed  the  resolution  was 
to  be  considered  as  somewhat  stringent  on  these 
committees;  but  as  he  had  watched  the  debate, 
and  on  further  reflection,  considered  it  to  be  only 
an  advisory  one — to  tell  them  so  to  frame  their 
reports  as  to  shut  out  all  unnecessary  matter  from 
cumbering  the  journal;  if  this  really  was  the 
sense  of  it  and  purport,  and  he  thought  it  was, 
he  would  vote  not  to  rescind.  It  was  very  pro- 
per to  caution  the  committees  on  this  point,  and 
from  the  course  the  debate  had  taken  in  the  Con- 
vention, he  thought  it  would  be  quite  as  well  to 
caution  some  of  the  gentlemen,  here  against  in- 


143 


troducing  too  much  extraneous  matter;  speaking 
too  often  and  too  long.  (A  lauglO  For  the 
Convention  has  spent  a  great  deai  too  much  time 
in  considering  this  and  some  other  matters,  of 
too  little  importance  to  justify  the  length  of  the 
debate.  For  his  own  part,  he  would  safely  pro- 
mise  the  Convention  that  his  speeches,  like  an- 
gels' visits,  should  be  few  and  far  between,  and 
very  brief  into  the  bargain. 

Mr.  BASCOMsaid  he  voted  for  this  resolution, 
and  from  the  course  the  debate  had  taken  and  the 
extreme  severity  with  which  the  proposition  had 
been  treated,  he  trusted  the  friends  of  it  would 
bo  -allowed  a  little  indulgence  in  the  debate — 
those  who  meant  to  adhere  to  it,  of  whom  he  was 
on»\  What  is  the  question  before  us  ?  It  is  a 
question  of  how  much  power  you  will  give  to 
your  committees  ;  of  how  much  authority  and  in- 
fluence in  effect  you  will  give  to  them.  It  is  not 
a  question  whether  the  committees  shall  be  gag- 
ged as  stated  yesterday  by  the  gentleman  from 
Clinton  (Mr.  STETSON)  but  whether  the  commit- 
tees shall  gag  the  House.  They  have  parcelled 
out  to  the  IS  or  20  committees  the  various  sub- 
jects that  were  to  come  before  the  Convention; 
and  when  they  came  to  examine  these  sub- 
jects they  would  have  full  as  much  autho- 
rity and  influence  in  the  House  as  they 
wo'uld  have  had  if  we  had  gone  at  first 
into  committee  of  the  whole,  and  therefore 
needed  not  the  assistance  of  any  written  argu- 
ments. The  gentleman  from  Columbia  (Mr. 
JORDAN)  had  given  very  able  arguments  and 
well  stated  this  yesterday,  and  he  would  attempt 
to  repeat  the  position  that  gentlernan  then  took, 
and  see  if  he  could  make  himself  understood. — 
And  in  doing  this,  he  did  not  intend  in  the  least 
to  indicate  what  the  report  of  the  committee  of 
which  he  was  a  member  was  at  all  likely  to  be. 
But  suppose  a  case.  Suppose  the  Judiciary  com- 
mittee (he  did  not  say  they  would)  should  report 
a  plan  for  a  judiciary  with  a  separate  and  distinct 
chancery  t.ibunal  ;  there  were  members  of  that 
committee  who  he  might  say,  (without  any  dis- 
respect to  other  gentlemen)  could  give  as  strong, 
able,  and  decisive  arguments  in  favor  of  that  pro- 
position, as  any  person  in  the  countrv.  Suppose 
the  Convention  should  differ  from  them,and  strike 
out  the  proposition,  and  substitute  another  one  for 
it;  the  plan  thus  substituted,  would  go  down  to  the 
people  for  their  vote  ;  it  would  have  no  distinct 
chancery  jurisdiction  connected  with  it,  and  yet 
it  would  have  with  it  all  the  very  plausible  argu- 
ments of  the  committee  in  favor  of  such  a  tribu- 
nal, (which  would  be  most  powerful  in  their  in- 
fluence with  the  people)  and  the  action  of  the 
Convention  against  it.  What  would  be  the  pro- 
bable result,  if  these  amendments  to  the  Consti- 
tution are  submitted  to  the  people  separately  (as 
probably  it  is  right  they  should  be)  with  a  propo- 
sition one  way,  and  a  strong  able  argument  the 
ither?  Why  the  people  probably  under  the  in- 
fluence of  these  strong  arguments  would  vote  in 
favor  of  the  present  beautiful  system.  That 
would  be  the  result  of  having  the  proposition  sent 
down  with  an  argument  opposed  to  it.  Would 
this  be  desirable  ?  Still  there  is  another  objec- 
tion. He  certainly  wished  every  man  in  the 
Convention  to  act  freely  according  to  the  convic- 
tions of  his  own  judgment ;  but  when  he  was  told 


that  a  committee  deliberately  agreed  to  any  pro- 
position and  offered  their  reasons  for  sustaining  it, 
(and  that  report  had  gone  out  on  the  wings  of  the 
wind  to  the  farthest  corners  of  the  State,)  tell 
him  not  of  its  influence  being  of  no  avail;  he  could 
not  believe  that  those  gentlemen  of  the  commmit- 
tee  would  be  as  free  and  at  as  full  liberty  to  dis- 
cuss that  proposition  in  committee  of  the  whole 
as  the  other  members  who  were  not  so  distinctly^ 
committed  to  this  proposition.  Yet  he  would  not 
detain  them  further  than  to  call  the  attention  ot 
the  Convention  to  one  more  position ;  it  was  one 
that  to  be  consistent  himself,  would  require  that 
he  should  be  brief  in  explaining  it.  It  is  this — 
dill  gentlemen  here,  or  had  they  thus  far,  calcu- 
lated the  value  of  time.  They  had  alreaby  seen 
that  it  was  quite  difficult  to  get  committees  to 
agree  on  the  propositions  they  intended  to  submit. 
They  were  now  in  the  fourth  week  of  the  ses- 
sion ;  and  there  had  not  been  a  vote  on  a  sin- 
gle resolution  and  only  a  solitary  report  presented, 
yet  4  weeks  have  nearly  elapsed.  The  Conven- 
tion had  not  yet  assumed,  to  use  the  language  of 
the  venerable  gentleman  from  Dutchess,  (Mr. 
TALL.MADGE)  its  proper  attitude  before  the  peo- 
ple, whose  constituents  they  were ;  and  who  had 
sent  them  here  to  do  this  work;  and  he  knew 
that  the  people  were  looking  on  with  much  im- 
patience at  the  dilatory  conduct  of  the  Conven- 
tion. Now  if,  when  the  committees  shall  agree 
on  propositions,  we  set  them  to  work  to  furnish 
arguments  and  reasons  in  detail,  and  their  chair- 
man to  draw  up  a  long  report,  &c.,  we  should 
thus  impose  an  improper  task  upon  them  ;  and 
one  which  if  they  undertook  to  perform,  would 
consume  a  great  deal  of  very  valuable  time  that 
might  much  better  be  devoted  to  more  important 
business.  He  repeated,  they  were  in  the  fourth 
week  of  the  session;  there  are  18  or  20  commit- 
tees to  bring  in  reports  ;  each  will  average  3  or  4 
propositions ;  they  all  have  to  be  debated  and  con- 
sidered by  the  Convention ;  and  yet  November  is 
the  time  when  the  people  are  required  to  vote  on 
these  amendments.  And  they  want  some  time  to 
read  and  reflect  on  them  before  casting  their 
votes,  and  finally  acting  on  the  amended  Consti- 
tution of  their  State.  "Did  the  members  reflect  on 
the  importance  of  the  work  before  them  ?  What 
had  they  to  do  ?  Why,  their  business  here  is 
simply  to  frame  the  best  Constituti<m  or  svstem  of 
government  that  God  ever  permit^!  any  people 
to  live  under  on  the  face  of  the  earth.  There  was 
plenty  of  ability  in  the  house  to  do  it;  but  they  must 
be  careful  of  their  time,  and  they  must  not  waste  it, 
bygiving  to  these  committees  workto  do  thatwould 
interfere  with  the  proper  business  of  the  Conven- 
tion. They  must  not,either,  allow  propositions  to 
go  out  with  erroneous  or  one-sided  statements  at- 
tached to  them.  It  was  said  that  the  speeches  of 
members  in  favor  of  them  (given  by  the  very  able 
body  of  Reporters  here)  would  be  as  influential 
as  written  arguments  when  given  to  the  world; — 
but  he  did  not  believe  that  these  speeches  of  sin- 
gle members  would  have  anything  like  the  ad- 
vantage  of  committees  privileged  to  present  ela- 
borate arguments,  and  to  spread  them  on  the  jour- 
nals of  the  Convention. 

Mr.  STRONG  said  that  he  had  not  as  yet  been 
able  to  alter  his  mind  from  any  thing  he  had. 
heard.  M  any  gentlemen  in  the  course  of  the  <Ji». 


144 


bate  had  spoken  his  sentiments  so  fully  that  it 
would  not  be  necessary  for  him  to  go  over  that 
ground,  or  to  say  much  on  the  subject.  But  he 
was  opposed  tatdl  long  reports,  and  he  would 
state  why.  The  gentleman  from  Essex  (Mr. 
SIMMONS)  and  the  gentleman  from  Rensselaer 
(VAN  SCHOONHOVEN)  and  some  of  the  other  gen- 
tlemen who  had  addressed  the  Convention  in  fa- 
vor of  this  motion  to  reconsider,  must  have  been 
satisfied  that  they  at  least  had  all  the  eloquence 
and  all  the  talent  necessary  to  express  all  that 
they  could  desire  to  have  said.  But  if  the  Con- 
vention adopted  the  plan  these  gentlemen  wish 
and  advocate — that  is  to  allow  the  committees  to 
write  out  all  their  reasons  and  arguments  upon 
paper  in  favor  of  their  several  propositions,  why 
then  these  very  eloquent  and  talented  gentlemen 
would  be  the  very  ones  to  whose  lot  it  would  fall 
to  write  out  the  arguments  ;  the  great  advantage 
would  be  given  to  such  men,  and  see  what  a 
double  advantage  they  would  thus  have  over  lay 
members  like  himself.  How  would  they  for  in- 
stance guard  themselves  against  the  gi- 
ant pen  of  the  gentleman  from  Herkimer  (Mr. 
HOFFMAN)  or  against  his  eloquent  tongue. — 
There  was  not  perhaps  any  man  in  the  State, 
or  the  United  States,  who  could  spread  out  his 
thoughts  upon  paper  better  or  with  more  force 
than  that  gentleman.  And  then  after  having 
done  so,  he  could  come  in  here  with  the  elo- 
quence of  a  Patrick  Henry,  a  Henry  Clay  or  a 
Daniel  Webster,  to  sustain  his  propositions. — 
He  did  not  want  such  gentlemen  to  have  this 
double  advantage  over  the  lay  members.  And 
there  was  another  reason  for  it.  He  could  not  un- 
stand  how  it  was  that  gentlemen  could  from  day 
to  day  be  converted  over  to  the  new  doctrine. — 
This  was  a  matter  very  much  to  be  dreaded  in- 
deed. It  was  evident  that  the  force  of  argument 
did  sway  the  minds  of  members,  for  they  were 
constantly  getting  up  there  and  declaring  they 
were  converts  to  this  new  doctrine.  And  this 
very  much  reminded  him  of  what  was  told  him 
once  by  an  old  friend  of  his,  who  took  great 
pleasure  in  seeing  religious  conversions  and  in 
talking  about  them ;  and  he  said  that  for  some 
men  to  be  good  Christians  it  was  necessary  for 
them  to  be  converted  every  day,  (Laughter)  and 
he  thought  we  had  a  good  number  of  that  class  a- 
mong  us  hSe.  (Laughter.)  They  seem  to  be  con- 
verted every  day,  and  so  of  course  they  must  be 
good  members  (much  laughing.)  They  told  us 
that  the  privilege  to  make  these  long  written  re- 
ports would  be  for  the  benefit  of  the  lay  members. 
Now  he  belonged  to  this  class,  and  he  did  not  want 
them  to  take  any  such  trouble  to  do  anything  of 
.that  sort  for  him  ;  (Laughter)  and  he  had  not 
heard  but  only  one  lay  member  express  himself 
here  in  favor  of  having  these  reports ;  and  he 
thought  it  very  likely  before  that  one  lay  mem- 
ber got  through  with  one  report,  that  he  would 
be  a  convert  back  again  to  the  old  doctrine,  as  he 
was  the  other  day  converted  to  the  new.  (Laugh- 
ter.) And  other  gentleman  who  get  converted 
by  reading  the  majority  report,  are  just  as  likely 
to  be  converted  back  next  day  by  reading  the  mi- 
nority report.  (Laughter.)  But  he  wanted  no  one 
to  trouble  themselves  for  him  ;  he  wanted  no  lay 
Deports  to  go  down  to  the  people  to  influence 


their  votes.  He  was  in  favour  of  short  talk  and  short 
work. 

Mr.  RUSSELL  said  that  he  felt  there  was  some 
misunderstanding  in  this  matter ;  some  said  these 
reports  would  be  spread  on  the  journals.  Now 
the  Convention  had  to  decide  what  should  go  on 
the  journal,  and  not  the  committees,  and  so  this 
argument  was  not  well  founded.  He  had  been  so 
unfortunate  as  to  call  out  this  debate,  and  he 
would  now  make  a  single  remark.  It  was  this. — 
That  the  debate  had  exhibited  a  most  conclusive 
argument  in  favor  of  written  reports.  He  trusted 
that  no  exciting  language  would  hereafter  be 
used  or  sent  down  with  the  proceedings  here; 
but  two  hon.  gentlemen  had,  in  the  course  of  this 
debate,  used  language  and  assigned  motives  for 
each  other's  conduct,  that  neither  of  them  would, 
on  cool  reflection,  place  on  paper  in  his  own 
room.  Now,  the  written  reports  would  have 
none  of  these  personalities — and  be  divested  of 
everything  calculated  to  excite  the  prejudices,  or 
to  inflame  the  passions;  and  they  would  be 
much  more  valuable  in  conveying  the  necessary 
information,  than  the  ordinary  speeches  of  mem- 
bers. 

Mr.RHOADES  was  decidedly  in  favorof  a  recon- 
sideration; it  was  very  evident,that  if  we  did  not  re- 
consider, that  we  should  have  these  written  reports 
in  the  form  of  speeches,  pro  and  con ;  and  he  was 
very  much  mistaken  if  his  friends  who  opposed  the* 
reconsideration  of  this,  should  be  present  when  his 
friend  on  his  left  (Mr.  HOFFMAN,)  the  chairman 
of  the  Canal  committee,  came  to  make  his  report ; 
if  the  Convention  compelled  him  to  make  it  oral- 
ly, they  would  not  be  induced  to  cry  out,  "Oh  that 
mine  adversary  had  written  a  book."  (Laughter.) 
We  ought  to  be  admonished  by  what  took  place 
yesterday,  that  these  reports  ought  rather  to  be 
written  than  oral.  It  did  seem  as  if  a  sort  of  epi- 
demic had  come  over  the  Convention  and  seized 
on  its  members;  and  he  did  not  know  but  that  he 
felt  a  little  touch  of  it  himself.  [Laughter.]  It 
was  a  tendency  to  make  very  long  speeches  about 
very  small  subjects.  (A  laugh.)  Now  all  physi- 
ologists declared  that  the  body  can  only  entertain 
one  specific  disease  at  any  one  time.  This  dis- 
ease of  the  Convention  now  appeared  to  be  what 
was  called,  he  believed  the  "  caccethes  loquendi" 
(Laughter.)  Now  he  thought  it  would  be  better 
to  get  rid  of  this  disease,  and  inoculate  the  Con- 
vention, with  a  little  of  the  caccethes  scribendi — 
he  believed  that  was  the  title  of  it.  (More  laugh- 
ter.) And  this  change  in  the  system  would  help 
them  to  save  a  good  deal  of  time,  and  hasten  the 
period  when  they  should  have  completed  the  in- 
strument the  people  desired  to  have  presented  for 
their  adoption.  And  as  he  believed  that  the  pri- 
vilege to  make  written  reports  would  curtail  the 
otherwise  long  speeches  that  would  be  made,  he 
should  vote  to  reconsider  the  resolution. 

iMt.  HOFFMAN  said  that  he  had  been  absent 
when  ihe  question  before  tlie  house  was  adopled, 
and  that  he  should  not  have  felt  called  on.  to  say 
anything  on  the  subject;  but  there  having  been 
distinct  allusions  made  fo  him,  he  v\ould  say  a 
word,  not  upon  the  theory  of  this,  but  on  its  prac- 
tical application  and  execution.  Let  the  conven- 
tion proceed  as  it  might,  difficulties  would  arise 
and  time  must  be  consumed.  It  was  not  enough 
to  point  out,  therefore,  some  difficulty  in  any  par 


145 


ticular  case.  We  have  to  make  a  choice  between 
difficulties ;  and  in  this  matter,  he  thought  that 
they  could  very  safely  make  such  a  choice.  If 
they  were  to  leave  that  Convention  where  the 
Convention  of  1821  was  left— where  every  othei 
Convention  had  stood,  and  where  every  Legislative 
bodv  in  the  United  States  had  stood— that  was,  to 
leave  their  committees  free  to  report  or  not,  as  they 
thought  proper — beyond  a  doubt  they  would  adopt 
the  same  course,  in  the  main,  that  had  been  adopt- 
ed by  the  Convention  of  1821.  Why,  then,  should 
they  thus  early  begin  to  distrust  these  committees? 
Ind'olence — the  love  of  speaking — the  natural  dis- 
like to  the  labor  of  hard  writing,  all  induced  mem- 
bers to  lean  to  the  course  pursued  by  the  Con- 
vention of  1821.  Why,  then,  attempt  to  coerce 
or  drive  them  into,  or  from  a  particular  course. 
To  some  it  may  be  easy  to  write  ;  but  any  one 
who  had  attempted  to  write  out  an  elaborate  re- 
port on  any  subject,  however  apparently  easy  at 
first  sight,  has  found  it  much  more  difficult  than 
he  had  anticipated,  and  he  would  assure  members 
that  no  written  reports  would  be  made  in  the 
Convention  unless  the  committee  that  made  it, 
was  of  the  opinion  or  found  that  the  subject  could 
not  be  safely  treated  in  any  other  manner.  This 
was  the  case  in  all  legislative  bodies.  But  sup- 
pose the  rule  to  stand  as  it  was,  and  that  a  com- 
mittee should  conclude  to  report  against  an  im- 
•  portant  proposition.  How  was  it  expected  they 
were  to  make  that  report.  They  could  say  that 
they  had  come  to  that  conclusion,  so  to  report,  and 
that  was  all  they  could,  do — they  could  assign 
measures.  And  was  it  to  be  supposed  that  com- 
mittees would  consent  to  do  this  ?  They  would 
not  do  it.  They  will  not  present  resolutions  or 
otherwise,  if  you  go  on  and  say  to  them  that  they 
shall  give  no  reasons  why  they  present  them  or 
are  opposed  to  presenting  them.  No,  they 
will  wait  to  the  very  last  days  of  the  session,  when 
no  reply  can  be  made  to  them  or  their  suggestions, 
and  no  investigation  can  be  gone  into,  and  then 
ask  to  be  discharged  from  the  further  considera- 
tion of  the  subject.  This  is  the  course  they  will 
pursue  if  you  tie  them  down  so,  and  allow  them 
to  give  no  reasons.  This  will  be  the  inevitable 
result — the  practical  operation  of  the  rule.  On 
the  other  hand,  suppose  a  committee  should  find 
that  they  could  not  with  safety  present  their  con- 
clusions without  giving  their  reasons  for  the  same, 
in  some  form  or  other — either  in  the  form  of  facts 
leading  inevitably  to  the  one  result ;  or  in  the 
form  of  facts  and  arguments  which  lead  to 
that  conclusion  by  the  rule  of  sound  logic. — 
How  would  that  committee  behave  under  these 
circumstances.  They  would  present  their  re- 
port at  your  table.  They  would  necessarily  be 
compelled  to  do  this,  and  then  the  Convention 
must  decide  on  its  reception  or  rejection.  A  ma- 
jority can  then  decide  that  it  shall  be  received. 
And  that,  in  practice,  would  actually  annihilate 
your  rule ;  for  the  Convention  would  not  give 
this  privilege  to  report  to  one  of  your  commit- 
tees, and  then  refuse  it  to  another.  And  thus 
your  rule  would  not  only  be  annihilated  ;  but  you 
must  have  in  addition  an  argument  raised  on  the 
question  why  it  should  be  adopted  or  not.  If  you 
receive  it,  you  annihilate  your  rule  ;  and  if  you 
reject  a  report  thus  presented,  is  there  a  man  here 
who  does  not  know  that  the  anxiety  to  know  why 


you  have  done  so,  and  what  it  was  you  had  reject- 
ed,wrould  induce  all  readers  to  go  and  seek  it  every- 
where, and  read  the  subject  over  and  over,  and  the 
causes  assigned  for  a  rejection,  and  the  reasons  of 
the  committee  for  thus  reporting.  So  that  the  be- 
nefit of  this  reasoning  would  be  had  and  experi- 
enced in  every  other  place  but  this.  You  can  not 
prevent  this — you  can  not  prevent  this  practical  ef- 
fect of  your  rule  when  thus  enforced;for  if  you  could 
so  enforce  it,  you  could  go  no  farther.  And  there  is 
a  step  still  within  the  reach  of  a  member  by  which 
he  can  appeal  from  the  judgment  of  the  House, 
and  indicate  his  individual  right  as  a  member, 
against  the  Convention  as  a  body.  He  did  not 
want  to  see  the  Convention  thus  come  into  colli- 
sion with  individual  rights.  How  could  the  Con- 
vention, for  instance  prevent  his  friend  from 
Monroe,  (Mr.  STRONG)  from  writing  out  his  rea- 
sons at  full  length,  where  he  could  refer  to  the 
very  page  and  the  very  line,  and  where  the  people 
could  find  the  facts  upon  which  he  rested — thus 
giving  to  them  the  strong  and  iron  reasons  of  truth, 
and  spreading  the  same  abroad  as  widely  as  the  re- 
gion of  letters?  And  will  any  member  of  this  Con- 
vention who  believes  this  to  be  his  duty  to  him- 
self or  to  his  fellow,  hesitate  to  pursue  such  a 
course,  to  give  .his  best  vindication  against  those 
acts  of  the  Convention  by  which  it  sought  to  pre- 
vent the  bringing  of  his  reasons  before  the  public 
at  the  time  he  presented  his  conclusions  to  that 
body  ?  Certainly  not.  And  this  would  be  done, 
too  in  the  last  days  of  the  Convention  when  they 
had  no  power  to  stop  it,  or  to  answer  the  reason- 
ings of  the  member.  It  would  be  done  too,  under 
circumstances  that  would  prevent  any  reply  to 
that  reasoning  which  it  is  so  much  feared  would 
overthrow  the  judgment  of  the  Convention.  This 
would  certainly  be  the  practical  result  of  the  ex- 
ecution of  this  rule.  Did  gentlemen  doubt  it?  If 
so,  they  had  only  to  look  back  to  a  case  where 
not  even  closed  doors,  and  the  strongest  injunc- 
tions that  could  be  imposed  on  man,  could  not 
succeed  in  destroying  the  individual  rights  of 
membcTs.  Luther  Martin  told  the  people  of 
the  U.  States  in  spite  of  all  these  restrictions  to  the 
contrary,  what  he  had  done  and  said  in  relation  to 
their  rights,  and  the  reasons  for  his  conduct.  But  it 
you  allow  a  committee,  against  the  natural  love  of 
ease,  against  natural  indolence — against  the  strong 
desire  of  making  a  speech — against  the  satisfaction 
of  being  listened  to — against  the  opportunity  of 
taking  up  and  employing  a  new  argument  in  the 
progress  of  debate — still  to  have  the  privilege  of 
writing  out — to  embody  in  writing,  whenever 
they  thought  proper,  their  arguments,  to  be  read, 
considered,  and  the  errors  of  it  (if  any)  to  be  ex- 
posed and  corrected — here  before  the  Conven- 
tion, and  through  it  before  the  country,  they 
would  be  pursuing  by  far,  the  best  and  wisest 
course.  And  depend  on  it  they  would  be  trou- 
bled then,  with  very  few  of  these  reports.  For  his 
own  part,  there  was  no  labor  to  him  more  disa- 
greeable than  that  of  writing  out ;  and  he  be- 
lieved this  to  be  true  of  almost  every  other  mem- 
ber of  the  Convention.  If  they  did  not  think  so, 
it  was  because  they  never  had  been  compelled  to 
try  their  hands  at  an  elaborate  argument  for 
which  they  were  hereafter  to  be  held  responsible; 
and  a  more  responsible  act,  in  his  judgment, 
than  such  an  argument,  a  man  could  not  be  com- 


146 


pelled  to  perform;  an  argument  yet  to  be  con- 
sidered, answered,  adopted,  or  rejected.  And 
believing  this,  he  should  vote  for  the  motion  to 
reconsider  the  resolution,  hoping  that  the  Con 
vention  would  not  embarrass  either  itself  or  in- 
dividual members  in  this  Way— but  leave  every 
gentlemen  free  to  write  out  or  to  speak  out  the 
reasons  for  their  conduct  and  conclusions — their 
reports  if  you  choose  to  call  them  so — as  they 
may  think  proper. 

Mr.  WARD  said  that  when  he  submitted  the 
motion  to  adjourn,  he  feared  this  resolution 
if  called  up  would  give  rise  to  a  protracted  dis- 
cussion. Such  it  seems  was  the  case,  and  in  his 
opinion  it  had  been  a  very  profitless  one.  He 
voted  in  favor  of  the  original  resolution,  and  he 
still  entertained  the  same  opinion,  and  he  should 
vote  now  on  this  occasion  against  the  motion  to 
reconsider.  And  while  he  said  so,  he  availed 
himself  of  this  opportunity  to  answer  but  a  single 
objection  raised  by  the  gentlemen  from  Essex  and 
Rensselaer.  They  alluded  in  the  course  of  their 
remarks  to  the  practice  of  other  bodies  of  this 
kind.  Now,  they  failed  to  present  the  first  and 
single  case  where  a  Convention  had  been  held  in 
this  State  or  in  the  Union,  where  any  report  of 
the  kind  had  been  made.  He  had  thought  he 
heard  the  gentleman  from  Essex  (Mr.  SIMMONS) 
mention  in  the  course  of  his  remarks  a  case  of 
that  character ;  and  he  (Mr.  W.)  did  himself  the 
honor  to  call  personally  on  that  gentlemen  and 
asked  him,  whether  he  recollected  a  single  in- 
stance of  any  Convention  held  in  this  country 
•where  any  report  had  been  made  in  writing. — 
That  gentleman  told  him  frankly  that  he  could 
not.  He  (Mr.  W.)  had  now  to  say  that  in  the  Con- 
vention that  framed  the  Constitution  of  the  United 
States,  there  was  not  one  single,  solitary  written 
report.  And  hence  it  was  that  we  heard  the  gentle- 
man from  Herkimer  allude  to  with  so  much  force 
and  eloquence  as  he  always  does  on  such  occasions, 
to  Luther  Martin.  He  felt  it  necessary  to  present 
his  views  to  the  people,  and  he  did  it  as  an  honora- 
ble gentleman  ought,  and  any  one  may  do  here. 
He  could  not  present  his  views  in  a  report,  and 
hence  he  presented  them  in  a  letter  to  the  Amer- 
ican people.  He  (Mr.  W.)  came  here  wholly 
uncommitted  on  any  question.  He  did  not  even 
come  committed  to  a  change  in  the  judiciary. — 
He  came  here  open  to  conviction.  If  gentlemen 
satisfied  him  that  it  was  expedient  to  change,  he 
•would  go  with  them.  If  he  became  satisfied  that 
the  judiciary  should  be  elective,  he  would  go 
with  his  friends  who  went  for  that,  but  as  yet  he 
was  not  satisfied,  although  he  might  be.  As  he 
said  before,  he  came  here  uncommitted,  still,  if 
he  made  a  report  to  the  Convention,  of  any  cha- 
racter in  writing,  he  should  feel  bound  to  fortify 
it  with  all  the  ingenuity  and  ability  at  his  com- 
mand, and  if  he  did  so,  it  was  not  all  the  philoso- 
phers or  logicians  on  this  floor,  learned  though 
they  be,  who  could  induce  hint  to  change  his 
view.  He  did  not  wish  to  be  placed  in  such  a 
position.  Now,  he  maintaine'd  that  this  country 
would  have  been  involved  in  endless  difficulty  if 
we  could  have  gone  back  to  the  old  constitution  and 
examined  reports  and  presented  reasons  why  this 
or  that  proposition  was  or  was  not  adopted.  Need 
he  refer  to  the  question  of  granting  incorporations; 
whether  the  power  was  vested  in  the  Congress  of 


the  U.  States  or  not.  Has  not  that  question  been 
discussed  with  infinite  ability  throughout  this 
country  everywhere.  Has  it  not  been  said  by 
some  that  Congress  does  possess  that  power,  and 
has  it  not  been  denied  by  others  ?  Has  it  not 
been  said  that  when  the  U.  S.  Constitution  was 
under  consideration  in  the  Convention,  a 
gentleman  offered  an  amendment,  giving  to 
to  Congress  the  power  to  grant  charters  for  incor- 
porations. Yes ;  and  did  we  not  know  that  it 
was  voted  down.  But  his  learned  and  distinguish- 
ed friend  on  the  other  side  (Mr.  SIMMONS)  would 
tell  him — had  told  him — and  the  house,  that  al- 
though it  was  voted  down,  still  the  Convention  en- 
tertained the  opinion  that  the  powers  already  there 
were  sufficient  for  the  purpose,  without  it  That 
was  his  (Mr.  S.'s)  opinion  ; — his  (Mr.  W.'s)  dif- 
fered from  that.  But  suppose  that  there  had  been  a 
solemn,  written  report  on  the  subject,  to  have 
gone  back  to — would  not  the  party  to  which  he 
(Mr.  W.)  belonged  been  involved  in  infinitely 
greater  difficulty  than  they  now  are  :  We  go 
upon  tiie  ground  that  unless  the  power  in  the 
Constitution  was  clearly  and  positively  given,  it 
could  not  be  exercised  by  Congress.  There  were 
others,  and  he  need  not  refer  to  them  particularly, 
who  contended  that  if  the  power  was  not  there  in 
so  many  words,  it  could  be  taken  by  implication. 
Need  he  refer  to  another  prevailing  question, 
which  involved  equally  as  great  difficulties,  and 
had  given  rise  to  a  word  of  discussion  throughout 
the  country,  from  one  end  of  it  to  the  other — as 
to  whether  there  was  any  thing  in  the  Constitu- 
tion to  authorize  the  levying  of  a  tariff  for  pro- 
tection. On  the  one  side,  it  was  insisted  that 
there  was  ;  and,  on  the  other,  that  there  was  not. 
Suppose  that  there  had  been  a  written  report 
there,  and  adverse  to  it — what  would  the  high  ta- 
riff men  say  ?  Why  all  of  us  could  see  the  diffi- 
culties that  the  country  would  have  been  involved 
in.  It  was  better  then  that  we  should  let  it  re- 
main open,  and  pass  upon  the  various  proposi- 
tions here,  and  let  the  people  interpret  our  views 
as  they  please — and  allow  us  to  explain  our  views 
by  letter  to  our  constituents,  if  it  became  neces- 
sary. In  regard  to  the  tariff'  question,  what  is  its 
condition  now  ?  There  are  many  who  say  that 
the  Constitution  gives  to  Congress  the  right  to 
raise  a  revenue,  not  for  the  support  of  government 
only,  but  for  the  protection  of  the  manufacturing 
interest.  In  other  words,  that  Congress  possesses 
the  power  to  regulate  the  Commerce  of  the  Uni- 
ted States.  -He  hoped  therefore  that  this  ques- 
tion would  be  settled  immediately,  that  it  was 
better  that  we  should  not  have  these  reports  go 
out  and  confound  the  people.  Let  them  judge  of 
the  intention  of  the  Constitution  according  to  its 
Letter,  and  not  from  the  views  of  members  pre- 
sented in  their  reports.  He  asked  the  pardon  of 
the  Convention  for  submitting  any  remarks  at  all, 
nor  should  he  have  done  so,  had"  it  not  been  that 
after  what  had  been  said,  he  felt  it  his  duty  to 
present  his  views  briefly. 

Mr.  CHATFIELD  before  this  question  was 
taken,  wished  to  say  one  word  in  explanation 
of  the  resolution  itself,  because  he  believed  it 
was  misunderstood  in  certain  quarters.  It  did 
not  prohibit  the  making  of  written  reports  to  the 
Convention  by  any  committee  who  may  choose 
to  do  it.  It  was  the  expression  of  the  opinion 


147 


alone  of  the  Convention,  that  it  was  inexpedient 
to  do  so.  But  before  it  amounted  to  a  positive 
prohibition  in  the  view  of  the  language  of  the  gen- 
tleman from  Herkimer,  (Mr.  HOFFMAN)  it  should 
be  of  such  a  character  that  the  presiding  officer 
of  this  body,  when  such  a  report  was  made  by  a 
committee,  would  be  called  upon  to  decide  it  out 
of  order.  Now,  as  he  understood  the  resolution, 
the  chair  could  decide  no  such  thing,  and  the 
committee  were  left  just  at  much  at  liberty  to 
make  a  report,  so  far  as  parliamentary  proceed- 
ings were  concerned,  and  the  resolution  was  no 
more  binding  on  the  committee,than  though  it  had 
not  been  passed  at  all. 

Mr.  STETSON  asked  if  it  was  not  prohibitory 
— if  it  did  not  have  that  meaning — if  the  gentle- 
man would  be  so  good  as  to  express  that  meaning 
in  unambiguous  terms?  He  (Mr.  S.)  agreed  with 
him  in  the  object. 

Mr.  CHATFIELD  said  it  was  as  free  from  am- 
biguity, as  any  word  that  could  be  selected  from 
any  lexicon  in  the  country.  The  word  inexpe- 
dient, to  him,was  by  no  means  an  ambiguous  one 
— it  was  perfectly  clear  and  expressive,  and  one 
that  any  philologist  would  understand  at  a  single 
blush.  In  the  opinion  of  the  Convention,  it  was 
inexpedient  to  report — not  that  you  shall  not  re- 
port— was  the  language  of  the  resolution ;  and 
as  he  said  before,  under  it  the  Chair  could  not 
decide  that  any  report  would  not  be  perfectly  in 
order.  It  was  no  order,  but  the  mere  expression, 
of  the  Convention,  that  the  course  adopted  in  1821 
would  be  preferred  by  it  for  its  government.— 
There  was  another  reason  thrown  out  by  the  gen- 
tleman from  Herkimer,  which  was  plausible  on 
its  face,  but  when  examined,  in  his  judgment, 
would  prove  to  be  a  felo  de-se — a  two-edged 
sword — and  applying  with  more  force  against  the 
gentleman's  reasoning,  than  in  support  of  it.  It 
was  this — that  if  the  Convention  would  not  allow 
written  report  to  be  made  by  the  committees, 
that  those  of  them  charged  with  special  duties 
and  distinct  propositions,  not  referred  under  the 
general  order,  could  if  they  chose  hold  on  to  their 
reports  until  the  last  of  the  session,  and  then  they 
would  be  precluded  ex  necessitate  from  giving 
them.  Now,  let  us  examine  that  a  little  further. 
If  the  committees  were  allowed  to  make  their  re- 
ports, as  contemplated  by  the  gentleman  from 
Herkimer,  on  the  last  day  of  the  session,  when 
would  be  the  opportunity  for  gentlemen  op. 
posed  to  these  propositions  to  meet  and  answer 
them  ?  Was  it  not  unfair  and  dangerous  to  the 
rights  of  persons  submitting  propositions  ?  Ii 
seemed  to  him  that  if  the  report  was  made  in  ac- 
cordance with  the  resolution,  and  the  reasons  fov 
it  stated  orally,  in  a  speech,  any  gentleman  could 
answer  them  in  the  same  way,  and  they  could  be 
given  to  the  public  in  juxta-position,  side  by  side. 
Now,  the  force  of  the  argument  was  on  the  other 
side,  and  in  favor  of  what  he  (Mr.  C.)  was  con- 
tending for— for  the  equality  of  the  rights  of  mem- 
bers of  the  Convention.  That  was  what  he  was 
contending  for,  and  he  desired  to  secure  that 
equality  of  right  by  giving  to  no  committee  the 
advantage  of  making  a  report  under  such  disad- 
vantageous circumstances  to  the  members. 

Mr  HOFFMAN  asked  leave  to  interupt  the 
gentleman.  The  gentleman  confounded  the  bring- 
ing in  of  propositions  at  the  close  of  the  Conven- 


tion, and  the  asking  leave  to  be  discharged  from 
their  consideration  without  expressing  any  opin- 
ion upon  it,  with  the  practice  of  reporting:  agains 
them.  At  any  time,  the  Convention  could  take  an 
order  requiring  the  committee  to  report.  But  if 
there  was  no  order ,practically  the  practice  would 
be  as  he  had  stated.  They  would  not  report  a- 
gainst  it — they  would  delay  it,  and  at  the  last  mo- 
ment ask  here,  as  was  done  in  other  bodies,  to  be 
discharged  from  its  consideration. 

Mr.  CHATFIELD,  would  ask  whether  there 
was  any  difference  in  the  two  modes  as  to  practice? 

Mr.  HOFFMAN :  Undoubtedly. 

Mr.  CHATFIELD  said  that  there  was  none 
whatever.  A  committee  asking  to  be  discharged 
from  the  further  consideration  of  a  subject  would 
not  submit  a  written  report  to  do  it,  unless — what 
was  never  done  in  a  parliamentary  body — they 
were  ordered  to  do  it.  He  needed  not  to  enlarge 
on  the  argument  as  presented,  except  to  say  to 
his  friend  from  St.  Lawrence,  that  as  a  matter  of 
practice,  standing  committees  of  legislative  bo- 
dies seldom  made  written  reports,  although  there 
was  a  rule  requiring  select  committees  to  do  so — 
to  state  the  facts,  and  not  the  reasons  that  lead  to 
their  conclusions.  Standing  committees  are  nev- 
0r  required  to  do  so — they  might  if  they  pleased. 
As  had  been  well  said,  he  did  not  consider  this 
body  as  standing  in  the  light  of  a  legislature, 
where  there  were  two  branches,  acting  as  checks 
on  each  other,  and  an  executive  department  ac- 
ting as  checks  on  both.  We  were  here  a  single 
legislature  body — or  rather  a  single  body — charg- 
ed with  the  performance  of  a  specific  object — and 
as  the  gentleman  from  Westchester  had  said,  he 
had  never  known  a  Convention  to  embarrass  its 
operations  and  deliberations  by  the  written  re- 
ports of  the  committees.  It  was  the  first  time  he 
had  ever  heard  the  proposition  urged  with  so 
much  tenacity. 

Mr.  STETSON  :  Has  the  gentleman  ever  heard 
of  a  prohibition  ?  . 

Mr.  CHATFIELD  had  never  heard  any  stronger 
one  than  the  practice  of  such  bodies.  And  thafin 
his  judgment  was  prohibition  enough.  In  182] 
the  Convention  of  this  State,  adopted  something 
like  an  expression  of  opinion,  that  it  was  expe- 
dient so  to  do,  and  he  would  rather  take  the  ex- 
perience of  the  past  in  bodies  like  this. 

Mr.  LOOMIS  rose  more  to  say  explicitly  and 
distinctly  that  he  understood  the  restriction,  im- 
posed by  the  standing  resolution  now  in  existence 
and  which  it  was  proposed  to  repeal,  to  be  one 
never  known  in  any  legislative  body  within  the 
knowledge  of  history.  The  case  'proposed  by 
himself  and  those  who  advocated  the  views  he 
took  of  this  question,  was  the  ordinary  course. 
Neither  the  Convention  of  1821  nor  that  which 
adopted  the  Constitution  of  the  United  States, 
nor  any  other  legislative  body  that  he  was  aware 
of—were  guilty  of  what  seemed  to  him,  to  be  the 
absurdity  of  organizing  committees  to  consider 
particular  subjects,  and  then  refusing  to  hear  the 
reasons  of  those  committees  in  such  manner  as 
they  might  choose  to  submit  them.  There  never 
was  such  a  rule  adopted  by  any  legislative  body. 
When  gentlemen  said  that  reports  had  not  been  the 
practice,  they  said  nothing  to  the  question — and 
he  was  not  prepared  to  say  that  written  reports 
had  not  been  the  practice  in  many  cases  in  Con- 


148 


— was    he    afraid    to    have 
from    those     who    were 


ventions.  The  argument  here  was  simply  this — 
that  the  reports  of  committees  are  calculated  to 
exercise  an  undue  influence.  And  gentlemen 
were  disposed  to  vote  against  having  them  for 
fear  they  should  read  those  reports  and  be  satis- 
fied with  the  conclusions  they  came  to.  The  gen- 
tleman from  Seneca  (Mr.  BASCOM)  had  put  a  case 
3  written  arguments 
in  favor  of  having 
chancery  jurisdiction  separate  from  the  Supreme 
Court,  for  fear  of  being  convinced.  Was  that  so  ? 
No — he  would  not  say  that  he  was  afraid  of  any 
such  influence  on  his  mind — but  he  was 
afraid  it  would  influence  others — not  him. — 
And  who  wras  the  man  on  this  floor  that  was 
afraid  to  read  the  reasons  urged  by  a  committee 
which  this  body  had  selected  to  consider  a  subject, 
for  fear  that  he  should  get  information  and  be 
convinced  ?  The  same  process  of  reasoning,  said 
Mr.  L.  would  require  you  to  stop  your  ears  here 
during  a  debate,  for  fear  that  you  would  be  con- 
vinced and  prejudiced  before  the  question  was  ta- 
ken. You  send  out  a  committee  to  deliberate  on 
a  proposition,  to  examine  and  investigate  it,  and 
at  the  same  time,  tell  them  it  is  best  that  thev 
should  not  make  a  report,  for  fear  that  it  should 
influence  you,  who  sent  them  out  for  that  purpose. 
It  was  said  that  this  resolution  was  not  mandato- 


on  this  subject,  and  happened  to  be  members  oT 
the  judiciary  committee, ^sinister  and  ambiguous 
designs  in  desiring  to  make  written  reports,  and  of 
spreading  them  upon  the  record  with  a  view  to 
the  future.  It  appeared  to  him  that  such  an  im- 
putation was  unworthy  of  that  gentleman,  and  as 
he  was  sure,  one  not  deserved. 

Mr.  SIMMONS  confessed  that  there  was  a  prin- 
ciple involved  in  this  matter,  as  there  frequently 
was  in  small  matters,  and  we  all  knew  that  Dr. 
Franklin  said  that  he  always  found  great  princi- 
ples in  little  things.  What  was  the  principle 
here  ?  It  was  whether  the  reasons  that  were  to 
be  given  by  committees  should  be  in  writing,  so 
that  all  might  have  due  notice  of  them,  and  ex- 
amine them  carefully  as  business  men, and  be  pre- 
pared to  put  them  down  when  wrong — or  whether 
those  reasons  should  be  rendered  orally,  and  of  a 
sudden,  with  the  committee  all  charged  and  load- 
ed and  with  the  members  not  sufficiently  pre- 
pared with  arguments  to  meet  them.  Now  he 
would  appeal  to  every  gentlemen  acquainted  with 
private  transactions, if  when  they  served  on  a  busi- 
ness committee,  they  had  not  always  found  it  bet- 
ter to  make  a  report  and  to  put  in  writing  their 
points  and  arguments,  rather  than  to  depend  upon 
memory,  and  verbal  explanation.  There  could 
be  no  doubt  about  it  whatever.  In  ancient  times 


ry.     Was  that  so  ?     What  are  our  committees  ? —  j  before  printing  became  as  general  as  it  is,  people 
They  are  the  representatives  of  this  body, — not  j  were  obliged  to  depend   upon  mere  verbal  decla- 


as  the  gentlemen  from  Otsego  made  him  say  the 
other  day — possessed  of  the  power  of  the  Con- 
vention— but  for  the  duty  enjoined  upon  them — 
to  examine  into  and  enquire  and  report  upon  sub- 
jects for  the  information  of  the  Convention. — 
And  would  a  committee  representing  the  body  in 
that  respect,  go  on  against  the  opinion  of  that 
body.  He  should  not  do  it,  and  he  expected  that 


mation.  But  now,  in  modern  times  when  we  can 
Easily  print— much  more  so  than  even  at  the  time 
of  the  Declaration  of  Independence— he  would  ask 
if  there  was  any  doubt  as  to  the  propriety  of  that 
course.  It  seemed  to  him  to  be  eminently  pro- 
tective of  the  rights  of  the  minority.  It  was  the 
interest  of  the  minorities  always,  if  they  could, 


to    put    the    majority    on    their    written     rea- 

no  committee  would  come  in  contradiction  of  the  sons.  Minorities  could  get  along  very  well  with- 
expressed  opinion  of  the  body  that  created  them,  out  doing  it.  He  always  felt  safe  when  in  a  mi- 
unless  they  intended — feeling  in  its  full  strength,  j  nority,  when  the  majority  put  themselves  on 
the  absurdity  of  the  proposition — to  appeal  to  the  their  written  reasons  and  were  willing  to  stand 
Convention  to  act  again  upon  it.  He  could  look  or  fall  by  them.  What  were  the  guarantees  that 
upon  it  in  no  other  light  than  as  an  expression  of  j  the  public  had  that  all  of  us  would  act  with  a  de- 
the  Convention,  that  it  was  willing  to  suppress  j  sire  to  give  them  the  best  possible  constitution. — 
the  truth,  for  fear  of  being  prejudiced  by  it.  Gen-  j  It  is  that  we  are  willing  to  be  tried  by  it — that 
tlemen  seemed  to  have  started  with  the  idea  that  i  our  reputations  are  at  stake — -and  that  if  we  make 
the  reports  of  the  committees  were  to  be  errone-  j  a  bad  one,  we  alone,  in  some  respects,  share  the 
ous,  and  are  afraid  lest  that  error  should  prevail  |  responsibility.  He  always  thought  of  this  prin- 
ciple when  he  got  a  man  on  paper,  and  he  wish- 
ed to  know  the  reasons  for  propositions  that 
might  come  up  in  this  convention,  and  which  he 
might  feel  it  his  duty  to  oppose.  The  effects  of 
those  reports  were  carried  upon  judges  in  explain- 
ing the  Constitution.  He  thought  no  danger  was 
to  be  apprehended  from  that  source.  The  report 
of  the  revisers  was  sometimes  looked  into,  but 
only  to  compare  old  laws  with  new,  and  it  was 
never  considered  of  any  binding  effect.  Gentle- 
men, some  of  them,  seemed  to  have  the  idea 
that  this  body  was  unlike  a  Legislature.  Well, 
so  far  as  the  mere  word  was  concerned,  it  was 
unlike  it,  in  one  sense.  It  was  a  body  of  the 


by  the  reasoning  and  arguments  adduced,  and 
hence  they  would  shut  their  ears — not  their 
eyes,  for  they  would  like  to  examine  and  look 
into  the  propositions 


Thev  did    not  fear    for 


themselves,  but  for  the  people.  The  same 
reasoning  would  require  that  the  publication 
of  the  debates  here  should  be  suppressed,  for 
fear  that  the  people  might  be  influenced  by 
them.  Every  member  on  this  floor  was  a  mem- 
ber of  a  committee,  and  if  he  did  justice  to  a  sub- 
ject, sits  down  and  examines  it — and  further, 
takes  his  pen  and  paper  and  examines  arid  puts 
his  propositions  down,  sees  what  they  are,  and 
reduces  them  to  form.  That  was  the  best  mode 
of  thinking,  as  every  one  doubtless  had  ascertain- 
ed. He  would  detain  the  Convention  but  a  mo- 
ment longer,  merely  to  allude  to  an  idea  thrown 


people  making    laws   which  comprehended  all 


other    laws,   and  existing  for  a  long    period. 
But  where  was  the  dissimilarity  as  to  the  proper 


out  by  the  gentleman  from  Otsego  the  other  day,  j  mode  of  proceeding  ?     A  Constitution  was  a 


and  to  repel  what  he  considered  a  personal  im- 
putation. He  imputed  to  three  individuals,  him- 
self (Mr.  L.)  among  the  number,  who  had  spoken 


of  laws,  organic  or  fundamental,  and  if  there 
any  utility  in  having  the   reasons  of  a  committee 
rendered  at  all,  it  should  be  on  such  a  subject, — 


upei 
body 

WUrf 


149 


What  was  the  best  form  in  whichto  have  them  ?  Is 
it  not  where  they  can  be  criticised  and  compared 
with  others  ?  It  seemed  to  him,  that  if  gentlemen 
had  not  committed  themselves  to  this  resolution  in 
the  first  instance,  there  would  be  very  little  hesi- 
tation about  leaving  the  question  open,  as  it  had 
been  in  other  Conventions.  As  a  business  mat- 
ter, he  had  no  doubt  that  a  Constitution  made  in 
one  or  the  other  of  these  ways,  would  be  a  very 
different  thing.  If  one  were  made  through  decla- 
mation and  the  excitement  of  oratory,  and  the  other 
from  carefully  collected  opinions  on  paper,  and 
an  examination  of  them  all  together,  and  in  a  bu- 
siness manner,  he  did  not  doubt  that  the  result 
would  be  different.  He  declared  that  he  would 
rather  see  all  debate — nineteen-twentieths  of 
which  was  for  what  was  called  Buncombe — stop- 
ped entirely  by  a  vote  of  the  house,  and  go  entire- 
ly upon  sound,  written,  business-like  reasons  and 
reports.  He  preferred  it  by  far  to  mere  frothy 
declamation  in  the  house. 

Mr.  BAKER  moved  that  the  Convention  do  now 
adjourn. 

Cries  of"  question,"  *•  question,"  and  the  mo- 
tion for  an  adjournment  was  voted  down  by  ac- 
clamation. 

Mr.  HARRISON  rose  for  the  purpose  of  mov- 
ing the  previous  question.  [Laughter.] 

The  question  being  then  taken,  the  Convention 
refused  to  reconsider  the  vote  on  the  resolution 
— ayes  52,  noes  63,  as  follows  : 

AYES— Messrs.  Brown,  Bi  undage,  Clark,  Conely,  Cook, 
Cornell,  Cudde"a'  k,  Dana,  Danlorth,  Uubois  Gebhard, 
Greene,  Hart,  Hoffman,  A.  Huntington,  E  Uuntin.^ton, 
Hutchiason,  Kern.iii,  Kingsley,  Loomis,  Mann,  McNeil, 
Munro,  Neliis,  Nicoll  O'Connor,  Perkins,  Porter,  Powers, 
Rhoades,  Ruggl  s,  Russell,  St.  John,  r?anford,  Shaw,  Sim- 
mon*, W.  H.  spencer,  Stephens,  Stetson,  Taft,  Taggart, 
J.  J.  Tav  lor,  W.  Taylor,  Tilden,  lownsend,  Tuthill,  Van 
Sehomhoven,  Witbeck,  Wood,  Yawger,  J.  \oung,  the 
President— 52. 

NAYS- .Messrs.  ;-.n~el,  Archer,  F.  F.  Backus,  H.  Back- 
us, Baker,  Bsscom,  jbergcn,  Bouck,  Bruce.  Bull,  Burr, 
Cambreleng,  L>.  !>  Campbell,  Candee,  Chamberl.ir.,  Chat- 
field,  Clyde,  Uoud,  Dorlon,  Planners,  Korsyth,  Gardner, 
Graliam,  Harris,  Harrison  Hunt,  Hyde,  Jones,  Jordan, 
Kemble  Kennedy,  Kirkland,  McNitt,  Marvin,  Maxwell, 
Miller,  Morris,  Murphy,  Nicholas,  Parish,  Patterson,  Pen- 
niman,  Richmond,  Hiker,  .-ears,  Shaver,  Shepard,  E  Spen- 
cer, Stanton,  Stow,  Strong.  Swackhamei,  Tallmadge, 
Vache,  Ward,  Warren,  Waterbury,  White,  Willard,  Wor- 
den.  A.  Wright,  W.  B.  Wright,  A.  W.  Y.0ung— 63. 

And  then  the  Convention  adjourned  till  11  o'- 
clock to-morrow  morning. 


WEDNESDAY,  (21st  day,}  June  24. 

Prayer  by  Rev.  Mr.  CLAPP. 

Mr.  KENNEDY  presented  a  petition  of  Mr. 
Archibald  Watt,  of  Harlem,  N.  Y.  in  relation  to 
errors  of  assessments  &c.  Referred  to  committee 
No.  14. 

Mr.  PERKINS  presented  returns,  from  1st 
Judge  and  Surrogate  of  the  county  of  St.  Lawrence 
in  answer  to  the  enquiries  of  the  Convention. — 
ReferVed  to  committee  No.  5. 

The  PRESIDENT  laid  before  the  committee  a 
communication  from  the  Secretary  of  State  of  N. 
Y.  State,  giving  a  list  of  all  State  officers  &c.  ap- 
pointed by  the  Governor  alone,  or  by  the  Gover- 
nor and  Senate. 

Mr.  CHATFIELD  moved  to  refer  it  to  com- 
mittee No.  7. 

Agreed  to. 


Mr.  BASCOM  moved  to  print  it. 

Mr.  KIRKLAND  said  it  was  a  very  important 
document,  and  moved  to  print  800  copies  of  it  in 
all. 

Agreed  to. 

STATE    OFFICERS— THEIR  MODE  OF    ELECTION, 
COMPENSATION,  TENURE  OF   OFFICE,  &.c. 

Mr.  CHATFIELD  said  that  standing  commit- 
tee No  6  had  directed  him,  as  their  chairman,  to 
report  certain  propositions  which  that  committee 
had  agreed  to  have  reported  to  the  Convention, 
and  in  obedience  to  their  direction,  he  now  ask- 
ed leave  to  report;  premising  that  this  was  only 
a  report  in  part.  It  related  to  Section  G,  Article 
4  of  the  present  Constitution.  Mr.  C.  then  pre- 
sented the  following 

REPORT: 

The  standing  committee  on  "  the  electionor  appointment 
ol  all  officers  (other  than  legislative  find  judicial  and  the 
governor  and  lieutenant-governor,)  whose  duties  and  pow- 
ers are  not  local,  and  their  powers,  duties  an.i  compensa- 
tion," beg  leave  to  report  in  part  performance  of  the  duties 
committed  to  them,  the  following  proposed  aiticle,  in  lieu 
of  section  6,  of  article  4,  of  the  existing  constitution. 

ARTICLE . 

§  The  Secretary  of  State,  Comp. roller,  Treasurer  and 
Attorney  General  shall  be  chosen  by  the  people  at  an  an- 
nual general  election,  and  shall  hold  their  oluces  lor  two 
years.  The  Secretary  of  State  and  Comptroller  shall  ie- 
ceive  an  Annual  salary  uf  two  thousand  and  live  hundred 
dollars  j  the  Treasurer  shall  receive  an  annual  salan  of  one 
thousand  live  hundred  dollars;  and  the  Attorney  Geneial 
shall  receive  an  annual  salary  of  two  thousand  dollars ;  but 
he  shall  not  receive  any  oilier  or  further  lees,  perquisites 
or  compensation  IJT  any  services  peifoimed  by  him  as  At- 
torney General. 

§  The  State  Engineer  and  Surveyor  shall  be  chosen  ta 
a  general  election,  and  shall  hold  his  office  two  jears;  but 
nj  person  sha.l  be  elected  to  said  office  who  is  not  a  prac- 
tical engineer,  and  has  not  pursued  civil  engineering  as 
a  business  or  pio.es.-ion  lor  seven  successive  }  ears  next 
before  his  election,  lie  shall  receive  an  annual  salary  of 
two  thousand  dol.ars  and  his  necessary  expenses  v\hiie 
travelling  on  official  business  on  the  line  of  the  canals  and 
pubhc  woiks  of  this  State. 

§  Three  Canal  Commissioners  shall  be  chosen  at  the 
geneial  ejection  which  shall  bo  held  next  alter  u.e  adop- 
tion of  this  Constitution,  one  ol  whom  shall  hold  his  office 
for  one  year,  one  sha,i  hoi  1  his  office  lor  two  years,  and 
one  shall  hold  his  office  for  three  years.  The  Commissi  n- 
ers  of  tue  Canal  Fund  shall  meet  at  the  Capitol  on  the  first 
Monday  of  January  next  alter  such  election,  and  deter- 
mine by  lot  which  of  said  commissioners  shall  hold  hi>  of- 
fice for  one  year,  which  for  two  years,  and  which  lor  three 
years,  and  theie  shall  be  elected  annually  thereafter  one 
Canal  Commissioner,  who  shall  hold  his  office  three  \  ears. 
The  annual  salary  of  a  Canal  Commissioner  shall  be  six 
teen  hundred  dollars,  and  his  necessary  expenses  while 
travelling  on  the  line  of  the  canals  of  this  state  on  official 
business  as  such  commissioner. 

Three  Inspectors  of  state  Prisons  shall  be  elected  at 
the  geneinl  election,  which  shall  be  held  next  alter  the 
adoption  of  this  Constitution,  one  of  whom  shall  hold  his 
office  for  one  year,  and  one  for  two  years,  and  one  for 
three  years.  The  Governor,  Secretary  of  State  and  Comp- 
troller, shall  meet  at  the  Capitol  on  the  first  Monday  of  ja- 
nuary  next  succeeding  such  election,  and  determine  by  lot 
which  ot  said  inspectors  shall  hold  his  office  for  one  year, 
which  for  two,  and  which  for  three  years;  said  Inspectors 
shall  have  the  charge  and  superintendence  of  the  State  pri- 
sons, and  shall  appoint  all  the  officers  therein,  and  shall  re- 
ceive lour  dollars  each  for  every  day  actually  occupied  in 
official  duty  at  the  Prisons  or  ai  the  Capitol,  and  10  cents 
for  every  mile  actually  travelled  on  official  business.  All 
vacancies  in  the  office  of  such  Inspector  shall  be  filled  by 
the  Governor  till  the  next  election. 

The  Lieutenant  Governor,  Speaker  of  the  Assembly, 
Secretary  of  State,  Comptroller,  Treasurer,  Attorney  Ge- 
neral and  State  Engineer  and  Surveyor,  shall  be  the  Com- 
missioners of  the  Land  Office. 

The  Lieutenant  Governor,  Secretary  of  St^e,  Co^ 


150 


er,  Treasurer  and  Attorney  General,  shall  be  the  Commis- 
sioners of  the  Canal  Fund. 

The  Canal  Board  shall  consist  of  the  Commissioners  of 
the  Canal  Fund,  the  State  Engineer  and  Surveyor,  and  the 
Canal  Commissioners. 

{$  No  law  shall  be  passed  creating  or  continuing  any  of- 
fice for  the  inspection  of  any  article  of  merchandize,  pro- 
duce or  manufacture,  (except  salt  manufactured  in  this 
State,)  and  all  existing  laws  authorizing-  or  providing  fur 
such  inspection,  and  the  offices  created  thereby  are  hereby 
abrogated. 

Mr.  CHATFIELD  repeated  that  this  was  but  a 
report  in  part ;  and  the  committee  had  not  report- 
ed in  full,  because  it  was  highly  probable  that 
the  action  of  other  committees  (in  relation  to 
public  offices)  might  throw  additional  burthens  on 
committee  No.  6,  for  them  to  attend  to  hereafter, 
and  report  upon.  If  any  officers  or  offices  should, 
when  the  rest  of  the  committees  make  their  re- 
ports, be  found  unprovided  tor,  then  his  commit- 
tee would  be  ready  to  dispose  of  them  in  what- 
ever way  they  may  be  deemed  desirable.  He 
said  that  it  was  also  due  to  the  Convention  to  state 
that  the  committee  was  not  unanimous  in  regard 
to  all  the  propositions  presented  in  this  report ; 
but  still  they  desired  that  the  report,  should  be 
thus  early  presented  and  in  its  present  shape, 
each  reserving  to  himself  the  right  to  offer  any 
amendments  that  he  wished,  when  the  report 
should  come  to  be  considered  in  committee  of  the 
whole.  He  did  not  intend  at  this  time  to  go  into 
any  statement  of  the  reasons  that  actuated  the 
committee  in  recommending  the  proposed  changes 
they  had  presented  in  their  report,  as  to  these 
offices,  and  the  organization  &c.  of  that  branch  of 
the  State  Government,  because  he  would  have  a 
full  opportunity  to  do  so  in  committee  of  the 
whole,  when  the  report  should  be  taken  up  there. 

Mr.  TALLMADGE  wished  to  know  if  this  was 
was  a  report  of  a  majority  of  the  committee.  The 
gentleman  from  Otsego  (Mr.  CHATFIELD,)  had 
told  the  Convention  that  the  committee  were  not 
unanimous;  but  he  had  not  said  that  a  majority  of 
the  committee  had  agreed  upon  these  proposi- 
tions ;  now  he  wished  to  get  at  this  fact ;  for  un- 
less we  started  right  upon  this  important  point, 
we  shall  be  involved  in  inextricable  confusion  in 
a  very  short  time. 

Mr.  CHATFIEL'D  could  only  reply  to  his  ve- 
nerable friend  from  Dutchess,  (Mr.  TALLMADGE) 
that  he  would  hardly  have  ventured  to  make  a 
report  from  a  committee  to  this  Convention, 
unless  he  had  been  authorized  by  the  committee 
to  do  so.  This  report  was  assented  to  by  the 
whole  committee  ;  all  the  members  desired  it  to 
be  made,  reserving  to  themselves  however  the 
right  to  propose  any  additional  changes  which 
may  become  necessary  hereafter  by  the  action  of 
the  committees.  This  however  he  could  say — 
that  every  proposition  contained  in  the  report  had 
the  approval  of  a  majority  of  the  members  of  the 
committee. 

Mr.  TALLMADGE  :— Aye  ;  that  is  the  point ; 
that  is  what  I  wanted  to  know. 

Mr.  CHATFIELD  :— That  was  the  case. 

800  copies  of  the  report  were  ordered  to  be 
printed. 

STATE    PRISON    COMMISSIONERS — POWER    TO 
PARDON. 

Mr.  RHOADES  said  that  he  had  in  his  hand  a 
resolution  which  contained  matter  in  reference 
to  which  the  committee  of  which  the  gentleman 


from  Otsego,  (Mr.  CHATFIELD)  is  chairman,  had 
reported,  or  in  part ;  but  there  were  other  matters 
contained  in  his  resolution  which  had  not  been 
touched  on  by  that  committee  ;  this  was  in  rela- 
tion to  the  duties  and  powers  of  a  certain  body  of 
officers  proposed  to  be  appointed;  and  so  he 
would  send  up  his  resolution  to  be  referred  to 
that  committee  without  striking  out  any  part  of  it 

It  was  read  as  follows : 

Resolved,  That  it  be  referred  to  the  sixth  standing  com- 
mittee  to  inquire  into  'he  expediency  of  amending  the  Con- 
stitution, so  as  to  provide  lor  the  election  or  appo.ntment 
of  a  board  of  officers, to  be  denominate.!  the  Commissioner* 
of  State  Prisons,  whose  powers  and  duties  shall  be  to  p  e 
scribe  the  mode  of  discipline  and  general  gove  nment  of 
the  State  Prisons,  and  who,  with  the  Governor  of  the 
State,  shall  constitute  the  sole  p<>wer  to  grant  pardons  10 
sueh  offenders  as  shall  be  s  ntenced  to  the  State  Pnsi.ns. 

Mr.  NICHOLAS  thought  that  the  latter  part  of 
the  resolution  properly  belonged  to  committee  No. 
5,  on  the  powers  and  duties  of  the  Governor.— 
And  as  to  another  of  the  subjects  in  the  resolu- 
tion, the  committee  No.  6  had  already  deliberated 
and  reported  on  it.  He  would  suggest  to  the 
gentleman  the  propriety  of  having  it  sent  to  the 
committee  of  the  whole,  who  now  had  charge  of 
the  report  of  committee  No.  6,  presented  yester- 
day. 

Mr.  RHOADES  had  no  particular  objection  to 
that  course ;  but  yet  he  had  rather  have  his  re- 
solution lie  on  the  table,  until  he  could  fully  ex- 
amine the  report  made  by  committee  No.  6  this 
morning. 

The  resolution  was  laid  on  the  table. 

POWERS  OF   SUPERVISORS,  &c. 

Mr.  C.  P.  WHITE  offered  this  : 

Resolved,  That  the  committee  on  the  powers  of  coun- 
ties, town  and  other  municipal  corpora'ions,  enquire  in- 
to the  expediency  of  providing  in  the  constitutkm  lor  the 
enactment  of  such  genet  al  laws  as  may  be  deemed  neces- 
sary for  the  government  of  said  counties,  towns,  &c.;  and 
also  that  the  bo  rdsof  supervisors  in  the  several  C'.-umies 
n  the  sta  e  be  entitled  to  the  exercise  of  such  powers  as 
are  administrative  and  not  legislative. 

It  was  referred. 

COURTS    OF  APPEAL    FROM  JUSTICES'   COURTS. 
Mr.  WATERBURY  offered  the  following: 
Resolved,  That  the  committee  on  the  judiciary  be  in- 
structed to  inquire  into  the  expediency  of  increasing  the 
amount  of  judgments  rendered  by  justices  of  the  peace — 
that  a  court  of  appeal  may  be  formed  to  settle  appeals  from, 
justices'  courts,  in  such  manner  that  the  ends  of  justice 
may  be  reached,  costs  saved,  and  difficulties  settled  with, 
more  dispatch. 

Referred. 

Mr.  TAGGART  presented  a  plan  fora  judicia- 
ry system.  Referred  to  committee  on  judiciary. 
CIVIL  OFFICERS— THEIR  SALARIES. 

Mr.  PERKINS,  said  he  would  offer  the  follow- 
ing, without  asking  any  action  on  it  at  the  present 
time : — 

Resolved,  That  all  civil  officers  chosen  or  appointed  for 
a  pei  iod  of  three  years,  or  less,  ought  to  receive  a  compen- 
sation which  shall  neither  be  increased  nor  diminished 
during  the  term  for  which  they  shall  have  been  elected; 
so  that  all  laws  pa>sed  after  the  constitution  shall  take  ef- 
fect, re  ating  to  the  compensation  ot  such  officers,  shall  re- 
late onJy  to  the  then  future  incumbents  of  such  offices. 

Mr.  P.  said  in  submitting  this  resolution  to  the 
consideration  of  the  Convention  he  did  not  pro- 
pose to  refer  it  to  any  committee.  There  was  no 
committee  that  could  properly  have  it  especially 
in  charge,  for  tha  subject  matter  of  the  resolution 


151 


was  diffused  in  its  operation  through  a  great  va- 
riety of  committees.     He  had  supposed  until  he 
came   here  that  the  business  of  a  Constitutional 
Convention  was  to  define  and  lay  down  proposi- 
tions of  government,  principles  of  legislation,  the 
powers  of  the  executive  and  judicial  departments, 
and  perhaps  to  limit  and  define  the  powers   and 
the  reserved  rights  and  privileges  of  citizens. — 
These  he  had  supposed  to  be  the  principal   ob- 
jects to  be  attained  by  a  fundamental  law.     But 
a  great  variety  of  resolutions   had  been  offered, 
and  a  great  variety  of  matter  thrown  before  them, 
which  seemed  to  him   to  be  proper  subjects  for 
legislation,   not  for  constitutional  enactment. — 
The  committee  to  which   he  had  the   honor  to 
belong  had  proposed   to  fix  the  salaries,  or  com- 
pensation to  be  paid  to  certain  officers,  as  wrell 
as   their    duties    and   mode    of  appointment.— 
Another   committee  previously  reported  a  pro- 
position  to  fix   the   compensation  to   be  paid  to 
the   governor    and    to    his    secretary,    together 
with   his  house-rent    and    various    other    mat- 
ters,  which   would   appear  to    be    rather    sub- 
jects  for   legislative   detail,   than   constitutional 
provision.     Considerable  leeling  had  been  exciled 
in  the  comniuniiy  on    account  of  what    had  been 
supposed  by  some,  to  be  legislation    prompted  by 
p.inv  motives,  local  hatred,  and  private  passions; 
and  in  some    quarters  also,    it  had  bee.n    imputed 
that  attempts    had  been  made  to  alter  the   com- 
pensation ot  officers  and  to  lower  them  for  the  pur- 
poses of  local    popularity.     He   apprehended  the 
proposition  he  had  now  offered  would  avoid  such 
imputations  on  legislation;    for  it  the    legislature 
o>uid  not  act  on  exist  ing  incumbents,  there  would 
be  no  motive  but  to  legislate   on  true    principles 
as  it  wi.uld  not  be  known  vvh.it  party    might  suc- 
ceed them.     He    had  objections    to  defining  the 
salaries  ot  officers   in  the    Constitution.     He    pie- 
•umed  the  Convention  hoped    to  firm  a  constitu- 
tion that  would    foi  some  time  render  unnecessary 
another  Convention;  bu     if  we  were    to    form    a 
constitution  which    would  be    acceptible   to    the 
people  and  endure  for  many  jears.   tie  thought  wt 
should  not  go    into   details  as  to   compensation. — 
The  value  ol  money,  us  compared  with    products 
and  merchandize,   might  changej  the  expenses  o! 
substance,  might  var\,  and  thus  what  would  be  a 
proper  salary  at  one  time,  would  not  be  at  another 
This  would  be  more  especially  the  case  in  respec 
to  local  officers;  and  he  leared  that   by  the   adop 
tion  ot  such   a  sys  em  we  would  bring  befoie  the 
peoples  ich  a  m<i9s  of  detail  as  would    rather  set 
the  people   o  exdiuiniog  them,  than  those    lu.  da- 
mental  principles    which  U  was    more  peculiarly 
the  provin.-e  of  the  Convention  to  lay  down.     H< 
hownver,  thought  there  could  be   i.o  tear  of  an- 
proper  legislation  on    such  matters   if  they   coulc 
not  act  on  the  existing  incumbents  «>t  office.     Bu 
it  we  should  a  tempt  to  fix  whit  should  be  a  reas 
oruble  salarv  f  >r  every  officer  3u,  4U,   or  50  yeai^ 
to  come,  when  Ihe  population  of  the    State    ma] 
have  doubled,  when  their  duties  in  many  respect 
had  become  more  onerous,  when  the  price  of  pio 
diu-ts  anJ  necessaiies  ot  lile  had  augmented,    and 
the  value  of  labor  had  greatly  changed, it  seethed  t< 
him  we    should  place    oniselves     in    ditficuitie 
which     would  involve  ihe    necessity  of    anothe 
Convention.     To  avoid  such  a  result,  he  had  sub 


nutted  this  resolution,  to  be  disposed  of  as  the 
invention  might  think  proper. 
Mr.  CHATFIELD  very  much  regretted  that 
lis  friend  from  St.  Lawrence  (Mr.  PERKINS) 
hould  thus  desire  to  anticipate  by  a  resolution 
if  this  kind,  the  action  of  the  committee  of  the 
,vhole  upon  the  report  he  had  presented.  The 
mnciple  involved  in  this  resolution,  he  consid- 
ered was  a  very  important  one  ;  it  looked  to  an 
entire  change  in  the  condition  of  the  Executive 
fficers  of  the  State.  Now  this  had  already  been 
ully  discussed  in  his  committee,  and  though  they 
were  not  unanimous,  yet  they  had  reported  cer- 
tain propositions  to  the  Convention  and  intended 
;o  suggest  any  desirable  modifications  thereto, 
Hereafter  in  committee  of  the  whole.  But  after 
laving  this  report  appropriately  referred  to  the 
committee  of  the  whole — after  directing  it  to  be 
printed  for  the  use  of  the  members — giving  them 
~ull  time  to  examine  and  discuss  it  in  private,  he 
could  not  but  regret  this  evident  attempt  to  anti- 
cipate a  discussion  on  its  merits,  for  it  could  lead 
l.o  no  good  result.  He  would  not  discuss  the  mat- 
ter now,  but  when  it  came  up  in  committee  of 
the  whole,  he  would  then  give  his  reasons  for  the 
course  he  had  adopted  and  the  conclusions  they 
had  come  to. 

Mr.  SWACKHAMER  moved  to  lay  the  reso- 
lution on  the  table  and  print  it.  Carried. 

Mr.  PATTERSON  said  that  some  days  ago  he 
had  the  honor  of  offering  a  resolution  relative  to 
the  procuring  of  diagrams  for  the  use  of  the 
members  of  the  Convention.  They  had  this 
morning  been  laid  on  their  tables.  His  resolu- 
tion only  included  one  for  each  member,  reporter 
and  officer  of  the  Convention  ;  and  one  to  be  fur- 
nished for  their  use  by  and  by.  They  would 
want  more  ;  they  ought  to  have  4  additional  di- 
agrams. Many  persons  came  from  the  country 
who  wanted  to  use  them  to  find  out  members' 
seats — particularly  ladies.  Many  ladies  about 
the  city  also  wished  to  find  out  the  seats  of 
members.  He  would  move  that  5  additional  cop- 
ies be  furnished. 

Mr.  STETSON  wished  to  know  what  the  ex- 
pense of  all  this  would  be — who  had  the  plate  for 
this  diagram  ?  They  had  no  control  over  him  ; 
it  was  the  man's  own  property,  and  he  could 
charge  whatever  he  pleased  for  these  diagrams — 
he  preferred  that  some  one  should  make  a  con- 
tract with  him,  before  ordering  any  more. 

Mr.  RUSSELL  said  he  knew  the  engraver,  and 
he  would  do  them  very  cheaply — only  a  few  cents 
for  each. 

Mr  SIMMONS  said  it  made  very  little  differ- 
ence whether  they  had  6  or  10. 

The  motion  to  print  10  copies  for  each  mem- 
bfer,  reporter  and  officer  in  the  Convention  was 
then  put  and  carried. 

Mr.  E.  HUNTINGTON  moved  a  resolution, 
that  hereafter  there  shall  always  be  800  copies 
printed  of  all  the  Reports  of  the  standing  com- 
mittees. Carried. 

CELEBRATING  THE  FOURTH  OF  JULY. 

The  PRESIDENT  said  that  he  had  received  a 
communication  from  the  General  Committee  of 
Arrangements  of  the  city  of  Albany  for  celebra- 
ting the  ensuing  4th  of  July,  by  a  military  and  ci- 
vic procession,  &c.*  and  inviting  all  the  member* 


152 


and  officers  of  the  Convention  to  join  with  the 
in  this  mode  of  celebrating  that  day. 

After  some  conversation  the  Convention  accep 
ed  the  invitation. 

THE  GOVERNOR  AND  LIEUTENANT  GOVERNOI 
On  motion  of  Mr.  MORRIS,  the  Conventio 
went  into  committee  of  the  whole,  Mr.  CHAT 
FIELD  in  the  Chair,  on  the  amendment  to  the  Con 
stitution  heretofore  reported  by  him,  in  relatio 
to  the  powers,  duties,  &c.,  of  the  Governor  an 
Lieut.  Governor. 

The   CHAIR  directed  the  Article  to  be  rea 
through,  and  it  was  partly  read — when 

Mr.    MORRIS   suggested   that  the  reading  b 
dispensed  with,    as    it    had    been   printed   an 
laid  on  the  tables — and  was   unnecessary.     Mi 
M.  then  said  that  the    committee   had  though 
best  to  retain  and  place  in  their  report  the  sec 
tions  of  the  Constitution  to  which  they  proposec 
no  amendments,  and  for   the  reason   that  it  wa 
deemed  to  be  more  convenient  for   the  member 
to  have   the   whole  of  the  article  before  them 
to  enable  them  the  better  to  judge  of  the  proprie 
ty  of  the  amendments  suggested.  There  had  beei 
great  objection  made  here  by  prominent  member 
of  the  Convention,  that  the  committee  had  repor 
ted  the  salaries  of  the  governor  and  lieutenant  go 
venor.     The   learned  member   who   made  these 
objections,  must  have  neglected  to  read  the  reso 
lution  of  reference,  because  it   expressly  directe< 
the  committee  to  report  in   relation   to  the   com 
pensation  of  these  officers.  The  committee  there 
fore  were  bound  to  do  so,  although  they  may  no 
have  spoken  of  the  compensation  as  other  gentle 
men  would.  (Mr.  M.  here  read  the  resolution  of  re^ 
ference  to  show  this  was  so.)     The  committee  he 
said  had  really  supposed  the  word  compensation 
put  in  there  to  mean  something,  and  hence,  they 
had   acted   accordingly.     The  1st  section  of  this 
article  was  in  substance  the  existing  Constitution, 
as  was  the  2d  section.  The  committee  had  touch- 
ed only  upon  such  subjects  relating  to   the  Exe- 
cutive  department,  upon  which  there  had  been 
an   opinion   expressed   by    the  public,   or   or  to 
which   their   own   minds   had  been   particularly 
called.     The  3d  section  was  also  a  copy  from  the 
present  Constitution,  and  here  he  wished  to  make 
a  verbal  correction.     (This  was  agreed  to.)     The 
4th  section  was  also  from  the  existing  Constitu- 
tion, with  the  addition  of  what  was  now  in  ac- 
cordance with  existing  laws,  in  relation  to  com- 
pensation.    The  5th  section  was  also  found  of  the 
old  Constitution,  and  some  new  matter.     To  this 
he  wished  to  add  a  clause  in  the  present  Consti- 
tution in  relation  to  the  pardoning  power,  which 
the  committee  had  left  out,   because  it  appeared 
to  refer  more  to  the  legislative  than  to  the  Exe- 
cutive department,  and  they  thought  they  had  r^o 
right  to  interfere  with  it.     But  as  it  was  so  inti- 
mately connected  with   the  pardoning  power  of 
the  governor,  he  thought  it  had  better  be  inserted 
here,  for  fear  it  might  be  overlooked  elsewhere. 
It  is  the  power  to  suspend  sentence  until  the  case 
should  be  reported  to  the  next  legislature,  when 
they  could  either  prevent  or  direct  the  execution 
of  the  criminal,  or  grant  a  further  reprieve. 

Mr.  STETSON  asked  if  the  only  object  in  this 
was  to  perfect  the  report  ? 

Mr.  MORRIS  said  that  was  all.     The  commit- 
tee were  under  the  impression  that  the  matter  be- 


longed to  the  legislative  committee.    And  it  may 
be  so  now. 

Mr.  STETSON  said  that  the  Convenfion  had 
already  sent  the  subject  of  capital  punishment  to 
that  committee. 

Mr.  MORRIS  said  that  the  next  new  matter  in 
that  section  was,  in  relation  to  the  communica- 
tion in  the  annual  message  of  the  number  of  par- 
dons so  granted.  The  6th  section  was  from  the 
old  Constitution,  with  the  exception  of  a  mere 
verbal  amendment  in  the  phraseology.  The  7th, 
8th  and  9th  sections  were  the  same  as  now,  with 
the  exception  of  some  mere  verbal  amendments. 
In  the  10th  section  it  was  proper  to  state  that 
there  was  a  very  serious  question  whether  the 
State  has  the  authority  to  exercise  the  power  of 
delivering  up  criminals  to  foreign  governments, 
and  whether  it  was  not  entirely  vested  in  the 
government  of  the  United  States.  The  opinion 
of  the  supreme  court  would  seem  to  intimate  the 
latter,  and  the  action  of  the  governor  of  Vermont 
subsequent  to  their  decision  would  show  an 
acquiescence  in  it. 

Mr.  STETSON  enquired  if  that  was  not  also 
provided  for  in  the  treaty  of  Washington. 

Mr.  MORRIS  said  that  was  only  with  England. 
[f  the  Ashburton  treaty  had  been  made  with  the 
Universe,  then  it  might  answer.  He  had  report- 
ed it,  however,  as  the  laws  now  were.  The  next 
section— the  llth — was  taken  from  the  laws  and 
s  not  now  in  the  constitution. 

Mr.  JONES  enquired  why  the  committee  had 
omitted  to  provide  for  the  delivering  up  of  crimi- 
nals on  the  requisitions  of  Governors  of  neigh- 
oring  States. 

Mr.  MORRIS  said  that  the  reason  they  did  not 
do  it,  was  because  it  was  provided  for  by  the 
constitution  and  laws  of  the  United  States. 

Mr.  JONES  wished  the  gentleman  to  refer  to 
hat  portion  of  the  constitution  of  the  United 
states  which  vested  this  power  in  the  Governor, 
le  thought  the  gentleman  was  mistaken — and 
hat  the  power  was  merely  left  to  the  State,  with- 
ut  specifying  the  authority,  to  do  it. 

Mr.  WARD,  at  the  request  of  the  chairman  of 
hu  committee,  would  read  the  section  of  the 
Jonstitution  of  the  U.  S.  in  this  particular : 

2.  A  person  charged  in  any  state  with  treason.felony, 
r  other  crime,  who  shall  flee  from  justi;  e,  and  be  lound 
i  another  state,  shall,  on  demand  of  the  executive  autho- 
uy  of  the  state  from  which  he  fled,  be  delivere.1  up,  to  be 
emoved  to  the  state  having  jurisdiction  of  the  crime." 

Mr.  JONES  said  it  would   be  seen  that  there 

s  no  obligation  imposed  there  upon  any  State 
fficer  to  do  it. 

Mr.  MORRIS  said  it  said  Executive  authority. 

Mr.  JONES  said  it  alluded  to  the  authority  only 
o  made  the  demand. 

Mr.  MORRIS  said  the  laws  of  Congress  provi- 
ed  for  it ;  it  was  suggested  to  him  by  Judge  NEL- 
ON.  The  12th  and  13th  sections  he  said  were 
iken  from  the  statutes  with  a  little  alteration  and 
as  entirely  new  matter.  The  13th,  was  to  ena- 
.e  the  Governor  to  remove  the  Sheriff  of  a  county 
r  cause  shown — omitting  the  Register  and  Cleric 
'  the  county  of  New- York.  In  the  14th  section 
ie  only  alteration  was  that  it  required  that  the  Le- 
slature  in  connection  with  the  exercise  of  the 
eto  power,  should  on  every  final  vote  take  the 
uestion  by  ayes  and  nays — whether  in  the  first 


153 


passage  of  the  bill — after  it  was  returned — or 
whether  reversed  by  a  subsequent  legislature.  It 
also  provides  that  the  Governor  should  have  ten 
days  after  the  adjournment  of  the  legislature  to 
approve  of  bills,  &e.  He  would  read  the  section 
as  amended  : — 

^  14  Every  bill  which  shall  have  passed  the  Senate  and 
Assembly  shall,  b-  fore  it  becomes  a  law,  be  presented  to 
the  Governor.  If  he  approve  he  shall  s  gn  it;  but  if  not, 
he  shall  return  it  with  his  objections  to  that  house  in  which 
it  shall  have  origin  .ted;  who  shall  enter  the  objections  at 
Jat'ge  on  their  journal,  and  proceed  to  reconsider  it.  If.  af- 
ter such  reconsideration,  two-thirds  of  the  members  pre- 
sent shall  agree  to  pass  the  bill,  it  shall  be  sent,  together 
with  the  objections,  to  the  otiier  houie,  by  which  it  shall 
likewise  be  reconsidered,  and  if  approved  by  two-thirds  of 
the  members  present,  it  shall  become  a  law.  If  not  ap- 
proved by  two-thirds  of  the  members  present  and  if  at  the 
next  ensuing  session  of  the  legislature,  the  same  bill  shall 
b*  again  passed  by  the  vote  of  the  majority  of  all  the  mem- 
bers  elected  in  each  branch  ol  the  legislature,  such  bill 
shall  become  a  law.  notwithstanding  the  objections  of  the 
Governor.  And  upon  the  final  passage  of  every  bill,  the 
votes  of  both  houses  shall  be  determined  by  nyes  and  nays, 
and  the  names  of  the  members  voting  shall  be  entered  on 
the  journal  of  each  house  respectively.  If  a  >.y  bill  shall 
not  be  returned  by  the.  Governor  within  ten  days  (Sunday 
excepted)  after  it  shall  have  been  presented  to  him,  the 
same  shall  be  a  law  in  like  manner  as  if  he  had  sign-  d  it, 
unless  the  legislature  shall  by  their  adjournment  prevent 
its  return;  in  which  case  it  shall  not  be  a  law.  unless  the 
governor  shall  approve  the  same  within  ten  days  after  the 
a  ijournment  The  omission  of  the  Govemor  in  such  case 
to  a'  prove  of  a  bill  within  ten  days  after  the  adjournment, 
•hall  have  the  same  effect  as  if  such  bill  had  been  returned 
to  the  Legislature  with  his  objections. 

Mr.  MORRIS  suggested  some  further  mere 
verbal  amendments  which  were  adopted  and 
then  moved  that  the  Committee  take  up  the  con- 
sideration of  the  first  section  of  the  report. 

Mr.  SHEPARD,  before  that  motion  was  called 
up,  would  like  to  ask  the  Chairman  of  the 
Committee  on  the  Legislature  whether  they  con- 
sidered the  veto  power,  strictly  speaking,  a  Leg- 
islative one. 

Mr.  STETSON  did  not  think  that  he  could  an- 
swer that  question  with  precision.  The  commit- 
tee to  which  the  gentleman  alluded  have  had 
some  of  these  matters  partially  under  considera- 
tion, but  as  to  the  veto  powor  it  was  connected 
with  the  duty  of  the  Governor  to  a  certain  extent. 
In  the  existing  Constitution,  it  was  placed  in  the 
department  of  legislative  power,  and  they  ran 
into  each  other  to  some  extent.  As  to  the  ex- 
tension given  it  in  the  last  amendment,  nearly 
the  whole  of  the  legislative  power  at  the  close  of 
the  session  was  under  the  regulation  of  the  veto 
power.  These-were  subjects  of  great  importance 
connected  with  the  Legislature  at  the  close 
of  the  session,  most  of  which  had  received  some 
consideration  at  the  hands  of  the  committee. — 
Perhaps,  however,  it  would  be  best  that  they 
should  be  fully  discharged  from  the  considera- 
tion of  this,  and  that  it  should  be  referred  to  the 
committee  of  which  his  friend  (Mr.  MORRIS)  was 
chairman. 

Mr.  MORRIS  suggested  that  when  the  sub- 
ject was  reached  in  the  report,  the  Convention 
could  decide,  perhaps,  to  which  committee  the 
matter  belonged.  This  report  was  unanimously 
reported  for  the  consideration  of  the  Convention, 
but  each  and  all  of  the  committee,  were  un- 
wedded  to  any  suggestion  there  made.  They 
came  in  here  after  the  performance  of  their  du- 
ties, like  the  rest  of  the  gentlemen  of  this  Con- 
vention, open  to  conviction,  and  to  receive  the 

10 


suggestions  of  each  and  all  as  preferable  to  those 
made  by  themselves. 

Mr.  PATTERSON  hoped  that  in  taking  up 
the  report  by  sections  the  usual  course  of  legis- 
lative bodies  would  be  adopted — that  is,  if  none 
object  to  the  first  section,  then  to  consider  the 
second,  and  so  on  until  the  report  was  gone 
through — taking  no  question  on  any. 

The  CHAIR  understood  that  to  be  the  usual 
parliamentary  law. 

Mr.  KIRKLAND  considered,  before  any  time 
was  spent  in  considering  this  report,  section  by 
section, that  the  opinion  of  the  committee  should  be 
ascertained  as  to  whether  they  wo^ld  not  report 
the  whole  of  the  article.  How  that  question  was 
to  be  discussed  by  taking  up  the  first  section,  he 
knew  not.  If  he  had  a  correct  view  of  the  mat- 
ter there  could  be  presented  to  the  committee 
overpowering  reasons  why  it  should  be  entirely 
rejected.  Or,  he  might  say,  mother  words,  why 
the  Article  of  the  Constitution  we  now  have  in 
relation  to  the  powers  of  the  Governor  and  Lieut. 
Governor  was  not  fully  sufficient  for  all  the 
purposes  of  this  people. 

The  CHAIR  said  that  after  the  report  had  been 
taken  up  by  sections  and  amended,  if  desired, 
then  the  whole  report  would  be  under  considera- 
tion and  open  for  discussion. 

Mr.  KIRKLAND  considered  the  act  under 
which  the  Convention  was  assembled  and  which 
created  it,  as  a  special  power  of  attorney — as  a 
chart  on  which  its  course  of  action  was  marked 
out.  He  could  not  conceive,  therefore,  that  we 
ought  to  discuss  in  the  name  of  amendments,  as 
reported  in  the  article  of  the  committee,  word  for 
word,  the  existing  Constitution.  Can  this  be 
said  to  be  amendments.  Are  we  to  sit  here  to 
discuss  the  propriety  of  submitting  to  the  people 
for  rejection  or  adoption — not  an  amendment  of 
the  Constitution,  but  the  existing  Constitution  it- 
self. He  apprehended  not,  and  he  trusted  there- 
fore the  committee  would  not  be  detained  by  a 
separate  consideration  of  each  of  these  14  pro- 
posed sections  of  this  4th  article,  as  it  would  be  a 
very  useless  waste  of  time,  and  not  be  accom- 
plishing the  important  objects  for  which  we  were 
assembled.  And  he  begged  now  to  say  that  with 
reference  to  the  chairman  of  the  committee  and 
its  members,  that  he  entertained  the  very  highest 
respect  for  them,  and  in  stating  his  objections  he 
was  guilty  of  no  want  of  personal  regard  to  every 
member  of  that  committee.  But  he  did  consider 
that  important  questions  were  involved  in  the 
present  proposition,  and  which,  if  correctly 
decided,  would  have  great  influence  in  saving  us 
a  useless  expenditure  of  valuable  time.  And  he 
did  trust  that  before  the  committee  took  up  the 
report  section  by  section  they  would  allow  gen- 
tlemen to  give  their  views  on  the  other  question, 
as  to  whether  the  report  should  be  rejected  or 
not,  and  if  he  was  not  out  of  order,  he  would  now 
proceed  for  a  few  moments  to  state  his  views. 

The  CHAIR  suggested  that  it  would  not  now 
be  in  order,  until  after  the  report  had  been  gone 
through  with. 

Mr.  KIRKLAND  thought  the  decision  of  the 
question  he  had  raised  now,  would  save  a  vast 
deal  of  time.  But  perhaps  the  mode  suggested 
by  the  Chair,  would  arrive  at  the  same  result, 
though  certainly  it  would  not  save  time. 


154 


Mr.  RUSSELL  suggested  that,  as  the  commit- 
tee would  probably  soon  rise,  the  gentleman  could 
then  attain  his  object  when  the  question  was  on 
granting  leave  to  sit  again,  by  moving  to  recom- 
mit the  Article  with  instructions.  The  report 
Mr.  R.  thought  ought  to  be  printed,  as  amended, 
and  the  new  parts  distinguished  from  the  old,  by 
italics,  or  some  such  distinction. 

Mr.  WARD  hoped  that  the  committee  would 
proceed  regularly. 

Mr.  KIRKLAND  apprehended  that  it  would  be 
a  useless  delay  to  print. 

Mr.  SWACKHAMER  called  the  gentleman  to 
order.  On  being  required  to  reduce  his  point  of 
order  to  writing — he  stated  it  to  be  that  the  gen- 
tleman was  discussing  while  the  first  section  only 
was  under  consideration,  the  entire  report. 

Here  there  was  much  desultory  conversation  on 
the  point  .of  order,  when  it  was  withdrawn,  and 
the  1st  section  was  then  taken  up. 

Mr.  KIRKLAND  now  wished  to  say  a  few 
words  on  that.  He  would  now  object  to  the 
1st  section  at  once ;  it  was  part  and  parcel  of 
the  present  Constitution,  and  precisely  the 
same  as  the  1st  section  there.  If  he  under- 
stood the  matter,  the  people  were  not  to  pass 
on  the  Constitution.  If  we  find  any  thing  in  it, 
that  the  people  find  no  fault,  let  us  let  it  alone, 
if  all  are  satisfied  with  it.  For  it  would  be  a  most 
useless  expenditure  of  time  and  trouble  ;  and  in- 
volve them  in  inextricable  difficulties,  that  would 
.greatly  embarrass  their  movements  hereafter. — 
And  no  report  should  be  made,  there,  except  to 
amend  some  part  of  the  existing  Constitution, 
and  which  amendment  should  be  specifically  sta- 
ted. They  had  a  good  precedent  for  this  course 
in  the  manner  of  reporting  the  amendments  to  the 
•old  Constitution,  by  the  Convention  of  1821 ;  anc 
on  these  the  people  passed ;  and  this  is  the  course 
they  want  us  to  pursue  in  the — 

The  CHAIR — Does  the  gentleman  from  Oneida 
move  to  amend  the  1st  section  of  the  report. 
Mr.  KIRKLAND— No,  Sir. 
The  CHAIR— Then  the  gentleman's  remarks 
are  out  of  order. 

Mr.  KIRKLAND— I  move  to  strike  it  out  alto- 
gether. 

The  CHAIR  said  he  would  state  the  parlia- 
mentary rule  ;  it  was  to  take  up  the  1st  section  ; 
amend  it  if  they  thought  proper,  then  pass  on 


under  their  direction.  It  was  also  desirable 
hat  the  old  parts  of  the  Constitution  should  be 
listinguished  from  the  amendments,  proposed  by 
them,  by  being  printed,  one  in  italics  and  the 
other  in  roman  letters.  He  would,  therefore, 
move  to  refer  the  report  back  to  the  committee  for 
that  purpose. 

The  PRESIDENT  said  that  the  question  would 

taken  first  on  granting  leave. 

Mr.  TILDEN  thought  his  motion  involved 
that. 

Mr.  RICHMOND  would  like  to  know  what 
reason  there  was,  because  there  had  been  a  few 
verbal  corrections  in  the  report,  that  the  whole 
matter  should  be  printed  over  again.  There  was 
not  a  man  here  but  understood  it  all. 

The  PRESIDENT  said  that  the  question  was 
not  on  printing,  but  on  granting  leave. 

Mr.  RICHMOND  was  in  favor  of  granting  leave 
to  sit  again,  and  on  the  report  as  it  is,  for  he  liked 
the  shape.  Every  man.  he  thought,  could  see  at 
once,  what  was  the  old  and  what  was  the  new 
matter.  If  members  had  been  here  as  long  as 
they  had,  without  understanding  pretty  thorough- 
ly what  was  in  the  old  Constitution,  then  they 
should  prepare  themselves  before  we  went  into 
committee  to  morrow.  He  hoped  no  order  would 
be  taken  to  print. 

Mr.  NICHOLAS  though  the  object  of  the  gen- 
tleman from  New  York  (Mr.  TILDEN)  could  be  at- 
tained and  at  the  same  time  the  committee  have 
leave  to  set  again.  He  agreed  that  the  report  was 
very  defective,  from  the  manner  in  which  it  was 
presented.  Here  were  some  twelve  or  thirteen 
sections  of  the  old  Constitution,  with  which  were 
connected  a  number  of  amendments,  and  they 
could  only  be  distinguished  by  a  great  deal  of  care 
and  examination.  If  leave  was  granted  to  set 
again,  he  intended  to  make  a  motion — instead  of 
referring  the  report  back  to  the  committees,  for 
that  was  unnecessary — that  the  report  be  printed, 
and  the  several  parts  be  distinguished  by  italics. 

Mr.  CHATFIELD  said  that  could  only  be  done 


by  resolution. 


that 


to  the  next,  section  by 
take  up  the  whole  bill. 


section,  and   so  come  to 


Mr.  KIRKLAND— Are  not  the  merits  of  the 
1st  section  in  order  ? 

The  CHAIR— The  merits  of  the  1st  section  are 
not  in  order,  without  an  amendment. 

Mr.  KIRKLAND  then  said  that  in  order  that 
they  might  all  have  time  to  consider  this,  and  to 
study  the  parliamentary  rule,  as  well  as  those  who 
like  him  knew  but  little  about  it,  as  well  as  those 
who  pretended  to  know  such  a  great  deal,  he 
would  move  that  the  committee  rise  and  re- 
port progress,  and  ask  leave  to  sit  again.  Carried 
ayes  49,  noes  36. 

The  PRESIDENT  then  stated  the  question  to 
be  on  granting  leave  to  the  committee  to  sit  again. 

Mr.  TILDEN  would  suggest  to  the  committee 
which  reported  the  matter  now  under  considera- 
tion, that  there  having  been  numerous  amend- 
ments, 


Mr.  NICHOLAS  said  that  he  would  offer 
resolution. 

Mr.  WARD  wished  merely  to  make  a  sugges- 
tion. As  was  remarked,  there  had  been  but  a  few 
verbal  amendments  proposed  by  the  committee, 
and  after  the  report  shall  have  been  gone  thro' 
with  in  committee,  and  reported  to  the  Conven- 
tion, then  and  not  till  then,  would  be  the  time  to 
order  them  to  be  printed,  with  other  amendments 
that  might  be  adopted.  If  we  took  the  advice 
of  the  gentleman  last  up  and  had  these  amend- 
ments printed,  various  others  might  be  offered, 
and  then  they  would  all  have  to  be  printed  over 
again.  There  was  no  sort  of  necessity  for  it,  and 
he  hoped  there  would  be  no  further  talk  about  it. 
Let  us  meet  the  question  at  once  and  settle  it, — 
Let  us  go  into  committee  again  upon  it,  where 
gentleman  will  be  privileged  to  oiler  such  amend- 
ments as  they  may  desire.  There  were  some  he 
understood  who  desired  to  propose  that  the  gover- 
nor should  be  elected  annually.  Then  they  ceuld 
do  it.  Others  he  understood  desired  to  strike  out 
the  veto  power.  Then  they  could  have  an  op- 
portunity  to  do  it,  but  otherwise  it  would  be  im- 
possible. He  trusted  therefore  that  the  commit- 


to it,  that  it  should  be  printed  tee  would  have  leave  to  set  again. 


155 


Mr.  TILDEN  said  that  in  order  that  the  ques- 
tion on  granting  leave  to  sit  again  might  be  un- 
rrassed  from  the  consideration  of  any  other, 
ho  would  withdraw  his  motion  to  print. 

Mr.  W  ATK  K  HI  TRY  said  that  we  had  met  here 
for  the  purpose  of  revising,  amending  and  alter- 
ing the  Constitution.  And  so  that  was  done  hi 
the  h<'-;t  w;n  ,  ho  cared  not  for  (ho  form  of  the  re- 
or  where  tl.r  in,;!!.'!-  e:mie  from — whether 
from  the  old  Constitution  pr  an  Almanac — f  no 
better  could  be  proposed.  He  was  astonished  In 
hear  gentlemen  tell  us  in  effect  that  we  should  first 
er  the  whole  ground  and  then  go  back  and 
it  up.  It  would  be  like  buying  a  new  waggon, 
and  for  that  reason  alone  throwing  away  the  old 
one.  Whoever  heard  of  such  logic — it  was  enough 
to  move  heaven  and  earth. 

Mr.  DANA  hoped  that  the  committee  would 
have  leave  to  sit  again.  He  was  satisfied  with 
the  report  in  the  shape  it  was,  and  if  there  was 
no  other  gentleman  who  deserved  to  propose 
amendments,  he  did  at  least  He  hoped  also  the 
report  would  be  ordered  printed. 

Mr.  TOWNSEND  said  that  having  been  one  of 
the  responsible  majority  who  voted  to  get  the  re- 
port out  of  the  committee,  he  must  be  permitted 
to  express  his  regret  that  the  gentleman  from 
Oneida  did  not  now  avail  himself  of  the  oppor- 
tunity of  placing  his  remarks  before  the  Conven- 
tion. If,  however,  the  gentleman  was  not  pre- 
pared he  was  willing  to  let  it  go  until  to-morrow. 
Still  it.  was  in  order  for  him  to  do  so  now. 

Mr.  KIRKLAND  was  prepared,  but  he  had  so 
much  trouble  this  morning  about  the  rules  of  or- 
der, that  he  had  been  afraid  to  say  any  more  just 
then.  If  on  this  motion  the  merits  of  this  report 
would  be  a  proper  subject  for  discussion,  he 
would  be  glad  to  have  the  opportunity  of  saying 
a  few  words. 

The  PRESIDENT  said  the  gentleman's  re- 
marks would  m  v  be  in  order. 

Mr.  KIRKLA.XD  said  he  desired  only  an  op- 
portunity to  discuss  the  merits  of  the  whole  re- 
port, without  being  obliged  to  take  up  the  time 
of  the  Convention  by  going  through  with  it  sec- 
tion by  section.  He  deemed  that  important 
principles  in  reference  to  our  future  action  were 
involved  in  the  acceptance  or  rejection  of  the  re- 
port of  the  committee.  As  he  understood  our 
duty  on  this  occasion,  it  was  to  amend  the  exist- 
ing Constitution  of  the  State,  and  if  we  confine 
our  work  to  the  amendments  of  that  instrument, 
which  are  demanded  by  the  people  and  their  in- 
terests,without  going  over  the  ground  in  a  manner 
we  were  not  called  upon  to  do,  we  should  find  our 
time  well  occupied  at  least  for  two  months  to 
come.  Some  might  differ  from  him,  but  his  opin- 
ion was  that  when  we  assembled,  it  was  by  virtue 
of  the  act  recommending  a  Convention  of  the  peo- 
ple, for  the  purpose  of  accomplishing  the  objects 
proposed  by  and  stated  in  that  act,  as  fully  and 
as  far  as  the-act  prescribed  our  course.  Now  this 
was  a  very  important  matter,  as  the  Convention 
would  find  beyond  all  doubt  before  they  got 
through. 

Mr.  TOWNSEND  asked  the  gentleman  to  give 
way  for  a  motion  to  adjourn. 

Mr.  K.  assented — but  the  motion  was  voted 
down — ayes  28,  nays  f>4. 

Mr.  KIRKLAND  resumed :— Now  on  referring 


to  the  act  which  called  the  Convention  together, 
and  the  duties  devolved  on  us  by  that  act — by 
reading  the  6th  section — it  would  be  found 
that,  we  were  to  take  into  consideration  the 
Constitution  of  this  State,  to  make  such  altera- 
tions as  the  rights  of  the  people  demand,  and  as 
we  may  deem  proper.  Now  ho  apprehended 
that  in  the  performance  of  that  duty,  we  were  not 
called  upon  here,  to  report  from  our  committees, 
existing  articles  of  the  present  Constitution, 
but  that  we  were  called  "upon  to  report  such 
amendments  as  the  rights  of  the  people  demand, 
to  our  existing  Constitution.  Now  as  to  this  re- 
port, and  he  found  no  fault  with  the  committee, 
for  they  had  entered  upon  a  new  path,  and  were 
the  first  committee  that  reported,  and  had  no 
model  form  for  them,  or  any  instructions  from 
the  Convention  in  that  particular — if  the  mode 
adopted  .by  the  committee,  perhaps  without 
a  great  deal  of  reflection,  be  the  one  adopted 
by  the  Convention,  it  involves  every  commit- 
tee, both  standing  and  select,  in  the  necessity 
of  reporting  to  the  Convention  the  article 
and  section  of  the  existing  Constitution  on 
which  they  wish  no  amendment  whatever.  Why 
on  a  little  analysis  of  the  report  of  the  committee, 
he  found  there  seven  sections  of  article  3  of  the 
existing  Constitution  reported,  and  most  of  them 
substantially,  in  hec  verba.  He  found  also  a  sec- 
tion of  article  1,  substantially  in  the  same  manner, 
and  also  a  section,  he  thought,  of  article  4.  Well, 
now,  it  seemed  to  him  that  in  the  first  place,  this 
manner  of  reporting  would  lead  us  into  very  great 
confusion,  and  devolve  on  the  committees  of  the 
Convention  much  unnecessary  labor,  and  besides 
not  attain  the  important  object  for  which  we 
were  assembled,and  therefore  in  reference  to  that 
he  apprehended  the  committee  had  committed  an 
error  in  reference  to  the  form  of  their  report.  If 
they  had  proposed  ai\f  amendments  to  the  arti- 
cles and  sections  of  the  Constitution  which  had 
reference  to  the  duties  of  the  Governor  and  Lieu- 
tenant-Governor,  they  should  have  reported  sub- 
stantially in  the  form  to  be  found  in  the  amend- 
ments already  proposed  and  adopted  by  the  peo- 
ple. He  referred  to  the  amendment  for  the  elec- 
tion of  mayor  by  the  people — an  extension  of 
popular  rights  and  power  immensely  important  in 
its  results  and  its  principles.  How  was  that  ob- 
ject obtained  ?  Was  it  by  proposing  whole  sec- 
tions in  the  manner  suggested  now,  or  in  the  bet- 
ter form  adopted  on  that  occasion.  The  fornj 
then  adopted  was  as  follows  : 

•'  At  the  end  of  the  tenth  suction  of  the  fourth  article  ol 
the  sviid  Constitution,  add  the  following  words  :  'Except- 
ing the  city  of  New-York,  in  wnich  city  the  Mayor  shall 
he  •  hosen  annually  by  the  electors  thereof,  qualified  to 
vote  tor  th«  other  charter  officers  of  the  said  city,  and  at 
the  time  ol  'he  election  of  such  ottieeis."' 

Now  in  reference  to  this  matter  he  was  very 
clearly  of  the  opinion,  and  he  trusted  members  of 
the  Convention  would  agree  with  him  in  senti- 
ment, that  it  would  be  deemed  the  most  advisable 
course,  not  to  report  here  the  entire  article 
of  the  Constitution,  whether  amended  or  not ; — 
but  on  the  contrary  to  present  to  us  clearly  and 
and  distinctly,  seriatim,  the  amendments  that  are 
proposed  to  the  Constitution,  and  if  it  was  desired 
to  alter  or  to  strike  out  aline  or  a  paragraph,  pro- 
pose it  in  the  manner  in  which  the  important 


156 


amendment  in  relation  to  the  Mayor  of  the  city  of  j 
New-York  was  proposed       If   it  was  proposed 
merely  to  add  to  a  particular  article  or  section, 
let  them  report  that  they  are  in  favor  of  so  doing 
to  section  5,  10th  line  &c.    as  the  case  may  be.— 


THURSDAY,  (22d  day,}  June  25. 
Prayer  by  the  Rev.  Mr^FisHER. 
The  PRESIDENT  laid  before  the  Convention 
communication   from  the  assistant  register  in 

Then  we  should  have  before  us  in  a  proper  shape  |  <-hancei7  at  New- York,  setting  forth  the  number 
the  consideration  of  the  business  for  which  we  |  ot  9ausf  on  the  calendar,  in  answer  to  interroga- 
came  together,  to  make  such  amendments,  which  |  5"?L  Deferred  to  the  committee  on  the  ju- 
-was  in  the  language  of  the  act,tothe  existing  con- 


stitution  as  the  rights  of  the  people  demand.  This 
mode  of  doing  the  business  was  one  which  would 
tend  to  expedition,  great  economy  of  time,  and 
if  he  was  not  grossly  in  error  save  much  confu- 
sion hereafter.  These  remarks  it  would  be  seen 
had  reference  more  to  the  form  of  proceeding,  than 
to  the  substance,  but  it  would  be  found  during  the 
course  of  our  arduous  labors,  that  this  matter  of 
form  was  one  of  no  small  importance  to  be  at- 
tended to.  And  it  became  more  important  now, 
because  this  was  the  first  committee  that  had 
reported,  and  he  desired  to  express  his  thanks 
to  them,  that  they  had  set  the  example  of 
reporting  early  on  the  subjects  referred  to 
them.  We  should  find,  he  apprehended  in  the 
course  of  our  deliberations  here,  that  we  had 
as  much  as  we  could  well  do,  in  providing  for 
amendments  to  this  Constitution,  without  report- 
ing existing  parts  of  it,  and  what  was  still  more 
to  be  deprecated,  without  reporting  legislative 
enactments.  We  had  not  assembled  on  this  great 
and  solemn  occasion  as  a  legislative  body — we 
have  assembled  as  the  representatives  of  the  peo- 
ple in  their  sovereign  capacity — not  to  amend  their 
laws,  which  were  ephemeral  and  transitory,  but 
for  the  purpose  of  amending  the  fundamental 


diciary. 


Mr.  JONES  asked  if  a  record  of  the  proceed- 
nings  in  committee  of  the  whole,  had  been  enter- 
ed on  the  journal  as  required  by  the  19th  rule. 

The  PRESIDENT  said  that  up  to  the  present 
time  there  had  been  no  amendments  made ;  the 
record  had  been  kept  (somewhat  informally)  to 
be  perfected  hereafter. 

FORM  OF   REPORTS. 
Mr.  RHOADES  offered  the  following : 
Resolved,  When  report'  of  committees  are  hereafter  pre- 
sented which  embrace  propositions  to  s.mtnd  the  (Jonstitu* 
tion,  and  in  which  sections  or  parts  of  sections  of  the  ex- 
isting Constitution  aie  embraced,  that  such  parts  be  print- 
ed in  italics. 

Mr.  F.  F.  BACKUS  called  up  his  resolution, 
Doc.  No.  33.  The  printer  had  omitted  in  the 
5th  section  the  words  "  from  the  1st  of  June, 
1846,"  before  the  words  "  to  the  1st  of  Jan.  1856." 
He  had  the  error  corrected  and  the  document  re- 
ferred to  Comptroller. 

Mr.  MURPHY  called  up  his  resolution,  Doc. 
No.  29.  relative  to  Royal  Grants,  Tenures,  &c.; 
but,  at  the  suggestion  of  Mr.  KENNEDY,  he  post- 
poned its  consideration  till  the  gentlemen  from 
New- York,  (Messrs.  SHEPARD  and  MORRIS,) 
were  in  their  seats.  They  were  in  the  commit- 


laws    of   the    government,   and    if    he  was  not  | tee  rooms. 

grossly  mistaken,  this  report  embraced  besides  I  THE  RIGHTS  OF  MARRIF.D  WOMEN. 


Constitutional  amendments,  a  large  share  of  le- 
gislative, (properly  so  called,)  enactments.  We 
have  found  in  this  country,  perhaps  in  others,  but 
certainly  in  this  State,  that  excessive  legislation 
had  been  the  bane  of  the  land,  and  one  reason 
among  others,  for  which  the  people  sent  us  here, 
was  to  interpose  guards  and  barriers  against  it. — 
And  he  humbly  trusted  that  by  our  action  on  this 
occasion,  we  might  not  set  a  worse  example — 
that  of  excess  of  Constitution-making.  If  in  the 
course  of  his  remarks  on  this  occasion,  he  might 
be  able  to  satisfy  the  members  of  this  Convention 
that  the  report  now  before  us  was  one  that  ought 
not  to  be  adopted,  because,  in  the  first  place,  in 
some  parts  of  it,  it  proposed  subjects  entirely 
•within  legislative  power — and  as  to  other  parts  of 
it,  is  in  violation  of  the  Constitution  of  the  Unit- 
ed States — and  as  to  other  parts,  because  they  are 
already  provided  for  in  the  present  Constitution 
— and  as  to  the  whole  of  it,because  it  is  not  called 
for  by  those  rights,  in  the  language  of  the  act, 
which  the  people  demand — then  he  hoped  that 
he  should  have  succeeded  in  satisfying  this  body 
that  this  report  was  one  which  ought  not  to  be  ac- 
cepted. This  had  become  a  matter  of  much  more 
importance,  because  here  a  precedent  must  follow 
in  oneway  or  the  other.  Mr.  K.  here  gave  way, 
ut  the  request  of 

Mr.  BASCOM,  who  moved  that  the  Convention 
adjourn.  Carried. 

And  the  Convention  adjourned  to  11  o'clock  to- 
morrow morning, 


Mr.  WOOD  offered  this,  which  was  referred : 
Resolved,  That  the  committee  on  the  rights  and   privi- 
leges of  citizens  of  this  state  enquire  imo  the  propriety  and 
expedience  of   securing  to  married  women  by  Constitu- 


hiiveat  the  time  of  their  marriage,  or  which  they  may  i>f. 
terwards  be  entitled  to  by  descent,  devise,  bequest,  con. 
tract,  gift,  or  any  o;her  proceeding  which  nuy  entitle 
them  tu  the  right  of  property,  to  empowe.  them  to  make 
bargains  and  contract  for  the  same,  to  bind  them  by  such 
con  racts  or  agreements,  relaiing  thereto  an  I  that  the  said 
property  he  liable  for  the  debts  mdividu.lly  contrac  ed  t>y 
them,  and  also  for  their  support  and  the  support  and  main- 
tenance of  their  children,  and  that  thjy  may  by  la-t  will 
and  testament  devise  and  bequeath  the  same,  and  that 
laws  may  be  passed  hy  the  let^Litu:  e  lor  the  descent  of 
such  estate,  or  the -.listubution  of  such  property  in  cases 
ot  intes  acy,  and  also  to  secure  to  the  husuand  the  same 
interest  in  his  wife's  estates  and  property,  that  his  wife 
would  by  law  be  entitled  to  in  his  under  similar  circum- 
stances, and  that  a  married  woman  nv'y  bef/ie  or  af  er  the 
death  of  her  husband,  enfor.  e  any  contract  or  agreement 
u>a  ie  wi.h  her  during  marriage,  for  her  support  and  main- 
tenance. 


REMOVAL  OF  OFFICIALS. 
Mr.  PERKINS  offered  this  : 


Resolved,  That  a  select  committee  of  seven  be  appoint- 
ed by  the  Chair,  to  consider  and  report  appropriate 
amendments  and  provisions  for  the  suspension  of  offi.ers 
suspected  to  be  guilty  of  malversation,  Irom  office,  and  for 
their  removal  ou  pi oper  proof,  and  ior  supplying  vacan- 
cies ail  interim. 

Mr.  PERKINS  said  that  it  seemed  to  be  very 
probable  that  the  deliberations  of  the  Convention 
would  result  in  deciding  that  a  large  number  of 
officers  who  were  now  elected  by  another  mode, 
should  hereafter  be  elected  by  the  people  direct. 


15? 


They  had  at  present  in  the  Constitution  some 
modes  of  removal  from  office  of  those  who  were 
delinquent;  he  meant  those  elected  by  the  peo- 


introducing,  it  was  highly  necessary  to 
provide  that  receiving  and  disbursing  officers — 
when  found  guilty  of  malversation — or  there  was 


pie  ;  some  can  be  removed  by  the  governor  ;  but  probably  cause  to  suspect  them,— should  be  in- 
for  the  most  part,  a  majority  of  these  public  offi- 1  stantly  suspended  from  office ;  or  else  they  would 
cers  can  only  be  removed  by  impeachment;  a  ma-  j  never  be  able  to  stop  these  abuses  practised  by 
jority  of  the  members  of  Assembly  must  com-  j  defaulters ;  and  we  should  be  carrying  out  the 
mence  proceedings  against  them,  and  it  required  ,  vulgar  proverb  of  shutting  the  door  after  the  horse 
two-thirds  of  the  Senate  to  convict;  whilst  the  is  stolen.  And  it  was  these  views,  which  he  sin- 
members  of  the  Senate  and  Assembly  could  be  ex-  j  cerely  entertained,  that  induced  him  to  submit 
pelled  by  the  Houses  to  which  they  belonged.  It  I  this  resolution.  (He  read  from  the  Revised  Sta- 
aeemed  to  him  probable,  that  an  officer  elected  by 
the  people  whose  term  of  office  is  prescribed  by 
the  Constitution,  could  not  be  removed  until  his 
term  expired ;  that  he  could  not  be  removed  by 
any  legislative  enactment;  and  therefore  it  would 

be  necessary  to  make  such  a  provision  in  the  Con- !  vision  for  removing  those  officers  elected  by  the 
stitution  for  removing  bad  officers,  or  suspending  i  people.  For  if  these  officers  who  are  guilty  have 
them  and  supplying  their  places  ad  interim  ,-Qor^got  to  remain  in  office  till  they  are  tried  or  con- 
as  such  officer  derives  his  power  direct  from  The  victed  by  legislative  enactments  the  consequences 
people,  he  could  not  be  removed  by  any  thing  i  to  the  finances  of  the  State  will  be  most  injuri- 
short  of  a  Constitutional  provision/  It  has  been  i  ous  ;  and  unless  they  can  also  be  removed  onsus- 
proposed  here  that  officers  shall  be  elected  here-  i  picion  or  good  cause  for  it.  He  therefore  offered 
alter  very  extensively  by  the  people.  He  did  not  j  this  resolution,  as  under  the  rules  he  could  not 
know  hoV  far  this  would  be  carried  into  effect.  !  explain  his  views  about  it,  and  put  them  on  re- 


tutes  of  1830  where  the  Governor  had  power  to 
remove  the  officers  lie  had  appointed,  and  to  sup- 
ply all  vacancies  he  thus  created.)  But  still  he 
believed  that  he  was  correct  in  saying  that  it 
would  be  necessary  to  make  constitutional  pro- 


But  one  report  was  received  already,  to  have  all 
the  State  officers,  Secretary  of  State,  &c.,  Canal 
Commissioners,  Inspectors  of  State  Prisons,  and 
several  other*,  elected  by  the  people.  And  in 


cord,  in  any  other  way ;  and  he  moved  for  a  select 
committee  ;  but,  as  he  had  explained  his  views, 
if  any  other  gentleman  chose  to  move  its  refer- 
ence to  the  judiciary  committee  he  would  not 


many  other  highly  respectable  quarters  they  spoke  !  object, 
of  appointing  Surrogates  and  District  Attorneys  |  Mr.  STRONG  had  heard  these  doctrines  of  the 
by  the  people;  and  this  had  met  with  great  favor; !  gentleman  from  St.  Lawrence  so  often  that  they 
and  probably  it  would  be  proposed  to  elect  others  had  become  as  common  words  to  him.  He 
in  the  same  way.  Now  a  large  number  of  these  thought  the  gentleman  had  abundance  of  op- 
officers  are  the  receivers  and  disbursers  of  a  very  portunity  the  other  day  before  the  committee  to 
large  share  of  the  public  monies.  And  in  order  j  express  his  views  on  the  subject;  the  question 
to  make  them  properly  and  immediately  respon-  j  there  was  debated  from  day  to  day,  and  fully  con- 


sible  (if  elected  by  the  people,)  there  must  be 
some  change  from  the  present  Constitution.  [Mr. 
P.  here  mentioned  the  clause  in  the  first  Consti- 


tution of  1777,  in  relation  to  this.]  Under  the 
Constitution  of  the  U.  S.  all  receivers  or  disbur- 
sers of  public  money  can  be  removed  either  by 
the  President  of  the  U.  States,  or  through  the  in- 
strumentality of  his  subordinate  officers.  This 
was  practically  so  to  some  extent  in  our  Consti- 
tution of  1777.  Under  the  Constitution  of  18:21, 
there  were  not  many  officers  that  were  elected  di- 
rectly by  the  people,  with  their  tenure  of  office 


sidered,  and  the  gentleman  ought  to  have  been 
content  with  this.  But  he  now  comes  here  with 
the  same  old  story,  and  asks  for  a  special  commit- 


tee. He  could  hardly  tell — in  short,  he 
at  a  loss  to  know  to  what  school  of  politics  the 
gentleman  actually  belonged.  He  thinks  he 
had  offered  the  same  kind  of  sentiments  as  was 
entertained  by  that  class  of  men  who  in  the 
Revolutionary  war  came  down  upon  our  fore- 
fathers with  the  great  warrior  Brandt  at  their 
back,  with  his  men,  and  their  views  and 
to  that  class  which  in  a  later  day  have  been 

prescribed.  The  Sheriff  was  one,  and  a  princi-  :  called  Blue  Lights  and  old  Federalists.  Now, 
pie  one;  he  received  and  disbursed  money  for  the  !  he  (Mr.  S.)  was  opposed  to  any  new  commit- 
people — they  elected  him — and  they  made  pro-  j  tee  to  be  raised.  1-  or  when  the  gentleman  had 
vision  in  the  Constitution  to  remove  him  ;  and  !  plenty  of  opportunity  to  express  his  views  in  the 
many  cases  occurred  since,  where  that  power  has  |  committee,  he  did  not  think  it  right;  and  if  he 
been  very  properly  exercised.  The  removal  and  |  was  dissatisfied  with  what  his  own  committee  had 
the  suspension  of  officers  under  the  present  Con-  done,  when  the  Convention  went  into  committee 
stitution,  have  usually  been  regulated  by  law  ;  of  the  whole  he  could  move  an  amendment,  and 
and  not  by  Constitutional  provisions  ;  and  if  it !  again  explain  his  views  ;  and.  to  ask  for  any  more 
could  always  be  so  regulated  and  properly  enfor-  i  was  us king  for  a  little  too  much, 
ced,  perhaps  that  would  be  the  better  way  to  doit,  i  Mr.  PKKKLVS  .s;nd  it  was  true  that  h.t>  had 
and  so  leave  it  there.  But  it  can  not  be  fully  carried  I  made  some  of  these  suggestions  in  committee  No, 
out ;  and  he  very  much  doubted,  if  the  Constitution  (i,  ^to  which  Mr.  STHOJMJ  and  he  belonged.)  But 
prescribed  an  election  of  a  certain  officer  by  the  i  he  did  not  then  understand  or  suppose  that  it  be- 
people,  and  named  his  term  of  office  for  1,  2,  3,  4  |  longed  to  that  committee  to  prepare,  or  that  they 
or  5  years,  whether  any  such  officer  could  be  remo-  had  been  charged  by  the  Convention  to  prepare 
ved  or  suspended  without  a  constitutional  provi-  any  constitutional  provisions  on  the  subject  he 
sion  that  should  state  the  manner  imvhich  it  should  referred  to  in  his  resolution;  although  he  had 
be  done.  He  very  much  wished  to  see  if  these  of-  j  made  provision  for  removing  sheriffs ;  it  might  a* 
ficers  thus  elected  could  be  otherwise  removed.  I  well,  he  apprehended,  be  considered  as  belong- 
Now  under  the  system  they  proposed  or  talked  of  |  ing  to  the  committee  on  executive  powers,  The 


158 


officers,  whose  duties  were  local,  they  must  and 
had  provided  for,  but  not  others.  The  power  of 
removing  others  may  perhaps  belong  to  those  who 
take  their  power  by  assumption,  but  certainly  not 
legally.  He  did  wish  to  know  the  views  of  the 
Convention  as  to  how  these  officers  ought  to  be 
removed  when  necessary.  He  did  not  understand 
the  gentleman  from  Monroe  (Mr.  STRONG,)  to 
assume  in  committee  that  this  should  be  provided 
lor  in  any  article  submitted  ;  the  committee  had 
not  assented  to  this,  and  therefore  it  had  become 
his  duty  to  bring  it  up,  and  in  asking  for  a  select 
committee  he  had  not  asked  for  a  "  little  too 
much;"  but  the  gentleman  from  Monroe  in  try- 
ing to  throw  a  little  mud  at  him  had  gone  entire- 
ly beyond  the  facts  of  the  case. 

Mr.  SWACKHAMER  moved  to  refer  it  to  the 
committee  on  the  judiciary. 

Mr.  CHATFIELD  said' he  deemed  it  to  be  his^ 
duty  to  explain  the  action  of  his  committee  in 
relation  to  the  matter.  The  gentleman  from  St. 
Lawrence  (Mr.  PERKINS)  and  himself  were  both 
members  of  this  committee.  And  he  hoped  that 
the  gentleman  (Mr.  PERKINS)  did  not  intend  to 
distrust  the  action  of  that  committee,  or  to  cast 
any  reflection  either  on  its  ability  or  its  willing- 
ness to  discharge  its  duty  ;  neither  of  which  the 
members  had  failed  to  do  in  any  way.  And  yet  the 
action  of  the  gentleman  seemed  the  other  day,  and 
also  the  resolution  of  to-day,  to  have  that  kind  of 
aspect  most  certainly.  The  whole*  of  this  subject 
for  removal  of  officers,  had  been  fully  discussed 
in  that  committee  by  another  member,  and  almost 
in  the  precise  words  of  the  gentleman  from  St. 
Lawrence  to-day,  and  after  much  discussion,  they 
found  that  there  was  not  a  unanimity  of  opinion, 
and  it  was  thought  best  to  defer  its  further  consi- 
deration until  the  Convention  shall  be  in  commit- 
tee of  the  whole  on  the  report  of  the  gentleman 
from  New  York,  (Mr.  MORRIS)  on  the  powers  and 
duties  of  the  Executive  ;  as  it  was  thought  that 
perhaps  this  subject  was  properly  part  of  the  Ex- 
ecutive duties.  And  with  this  view  he  had  drawn 
up  an  amendment  to  that  effect,  embracing  this 
principle,  (and  which  as  chairman  of  the  com- 
mittee of  the  whole  he  could  not  offer,)  and  he 
had  given  it  to  a  colleague  to  offer  for  him  to 
amend  the  report  of  committee  No.  5  ;  and  yet 
he  had  the  surprise  this  morning  to  see  his  col- 
league rise  and  anticipate  all  this  action  by  his 
resolution  for  a  select  committee.  He  should  op- 
pose this  reference,  for  it  was  a  direct  implica- 
tion that  the  committee,  of  which  he  was  chair- 
man, was  either  not  competent  or  not  willing  to 
consider  it ;  if  it  had  to  be  sent  to  a  committee 
at  all,  it  ought  to  be  sent  as  a  matter  of  parlia- 
mentary rule,  and  a  right  by  courtesy  at  least,  to 
his  committee  which  already  had  the  subject  un- 
der consideration. 

Mr.  SWACKHAMER  then  changed  his  mo- 
tion so  as  to  have  it  referred  to  committee  num- 
ber 0. 

Mr.  PERKINS  said  that  he  perceived  the  gen- 
tleman, who  was  chairman  of  committee  No.  6, 
(Mr.  CHATFIELD)  to  which  he  belonged,  still 
seemed  to  suppose  that  any  movement  made  by 
him  in  any  matter  connected  or  not  with  the  du- 
ties of  that  committee,  was  an  allegation  on  him, 
or  in  derogation  of  the  powers  conferred  on  him, 
as  well  as  an  imputation  upon  the  committee  to 


ich  they  both  belonged.  He  confessed  to  some 
surprise  and  astonishment  at  the  view  the  gentle- 
man took  of  his  movements  to  day  and  yesterday. 
The  Convention  had  determined  that  they  would 
receive  no  reports  or  expositions  from  these  com- 
mittees. Now,  the  report  made  yesterday  from 
the  committee  of  which  he  was  a  member,  in  ma- 
ny of  its  provisions  had  his  cordial  approbation — 
whilst  some  of  its  details  did  not  meet  his  assent. 
And  yet  the  gentleman  from  Otsego  seemed  to  re- 
gard it  as  a  personal  imputation  on  him,  that  he 
(M\\  P.)  should  make  any  movement  here  imply- 
ing that  he  did  not  assent  to  every  item  and  arti- 
cle of  that  report.  Now,  in  the  ordinary  course 
of  parliamentary  proceedings,  it  would  have  been 
his  right  and  not  discourteous  in  him,  to  have  ex- 
pressed in  writing  the  views  he  had  indicated — 
that  expression  would  have  come  before  the  con- 
vention with  the  report,  and  the  implication 
wquld  not  have  arisen,  as  now,  that  he  as- 
sented to  the  entire  article.  Again,  in  offer- 
ing his  resolution  yesterday,  he  desired  in  that 
way  to  indicate  his  views  in  relation  to  the 
matter  of  fixing  the  compensation  of  officers- 
anticipating  that  the  article  reported  by  the  com- 
mittee on  the  Executive  department  (Mr.  MOR- 
RIS'S) would  come  up,  and  that  standing  on  re- 
cord in  favor  of  that  proposition,  by  the  report 
made  by  his  committee,  he  should  be  placed  in 
a  false  attitude,  if  he  should,  as  he  intended, 
take  ground  against  that  provision.  He  did  not 
desire  to  be  placed  in  that  position ;  and  had 
the  ordinary  course  been  pursued  here,  he  should 
not  have  been  compelled  to  stand  in  that  attitude. 
Mr.  P.  did  not  know  what  was  intended.  The 
gentleman  from  Otsego,  (Mr.  CHATFIELD)  his  as- 
sociate on  the  committee,  had  made  a  speech 
against  written  reports  ;  and  if  a  minority  wished 
to  place  themselves,  on  record,  they  must  at  least 
write  something — perhaps  in  the  form  in  which 
he  had  chosen  to  do  it  here.  But  as  it  was — be- 
tween the  action  of  the  Convention  on  one  side, 
and  what  was  deemed  courtesy  on  the  other,  the 
mouths  of  a  minority  of  a  committee  were  closed. 
They  could  not  bring  their  views  before  the  Con- 
vention, except  when  a  report  came  up  in  com- 
mittee of  the  whole.  Was  a  course  of  that  kind 
to  be  put  down  the  throats  of  the  Convention, 
and  of  such  minorities  ?  If  comity  required  it, 
he  would  submit — for  he  designed  no  disrespect 
to  anybody,  nor  did  he  think  he  had  been  guilty 
of  any.  Minorities  of  committees,  when  a  re- 
port was  made,  should  be  allowed  to  stand  on  re- 
cord, as  early  as  the  residue  of  the  committee, 
that  the  views  of  both  sides  might  be  before  the 
body.  He  did  not  uniderstand  until  now  that 
this  matter,  appropriately  belonged  to  committee 
number  six.  If  the  gentleman  from  Otsego 
wanted  to  have  charge  of  it,  Mr.  P.  had  no 
objection.  The  gentleman  claimed  it,  and  Mr. 
P.  was  willing  he  should  have  it — or  any  other 
committee.  But  he  did  not  regard  it  as  "within 
the  range  of  the  powers  delegated  to  that  commit- 
tee. It  reached  beyond — to  other  officers — to  the 
Executive — to  all  local  officers — perhaps  to  the 
judiciary  committee.  He  did  not  know  that  the 
gentleman  from  Otsego  had  exclusive  jurisdiction 
over  this  subject.  But  Mr.  P.  had  no  objection 
to  his  having  it  ;  Mr.  P.  did  not  desire  to  have  it 
himself;  for  he  apprehended  it  was  not  a  matter 
. 


159 


so  easily  disposed  of.  He  confessed  he  did  not  j  fore  it  was  that  his  committee,  report! ng  in  ad<- 
undi'rstand  this  matter  as  some  of  the  committee  j  vance  of  the  action  of  all  other  committees  but 
djd — though  he  presumed  they  were  right  about  one,  had  reported  only  in  part;  reserving  to 
it.  The  subject  was  introduced  before  the  com- 
mittee, by  whom  he  would  not  pretend  to  remem- 
ber — and  he  was  certain  that  it  was  mooted  and 
talked  about — and  that  the  declaration  was  made 
and  assented  to,  that  some  stringent  provisions 
would  be  necessary.  And  then  the  matter  drop- 
ped— nothing  being  said  as  to  who  was  expected 
to  perform  that  duty.  Had  he  supposed  that  it 
belonged  to  the  committee  of  which  he  was  one, 


he  should  have  proposed  that  provisions  be  drawn 
up  in  detail  for  consideration.  He  did  not  hap- 
pen to  hear  the  suggestion  of  a  mode  of  effecting 
the  removal  of  these  officers,  if  it  was  claimed 
that  they  were  made,  as  a  step  towards  the  com- 
mittee's framing  such  provisions.  And  he  was  at  j  hibiiion  there.' 
a  loss  to  understand  when,  and  from  what  source, 
and  on  what  ground  these  imputations  were  at- 
tempted to  be  cast  on  him  of  disrespect  towards 
the  chairman  of  the  committee  to  which  he  be- 
longed. Mr.  P  disclaimed  any  intention  to  fore- 
stall the  committee.  He  repeated  he  had  no  de- 
sire to  be  on  the  select  committee.  If  the  gentle- 


one, 

themselves  the  right  to  report  on  all  these  officer* 
created  by  other  committees  whose  powers  and 
duties  are  not  local,  if  the  action  of  these  com- 
mittees render  it  necessary.  But  the  gentleman 
from  St.  Lawrence  (Mr.  PERKINS)  has  made  hi» 
resolution  a  sort  of  peg  to  hang  a  speech  upon, 
made  against  the  action  of  this  House  some  days  ago- 
in  relation  to  written  reports ;  and  his  complaint 
seems  principally  now  to  be  that  he  had  no  means 


man  from  Otsego  desired  to  have  the  framing  of 
such  provisions  as  he  had  indicated,  he  hoped  the 
Convention  would  gratify  him 

Mr.  CHATFIELD  did  not  intend  to  say  that 
the  gentleman  from  St.  Lawrence  had  intention- 
ally cast  any  imputations  upon  the  committee,  or 
any  disrespect  to  him.  But  he  did  say,  what  he 
now  repeated,  and  what  must  strike  the  common 
sense  of  every  man  there,  that  the  course  pursued 
by  the  gentleman,  did  bear  that  construction,  and 
could  not  be  regarded  by  a  majority  of  persons  in 
any  other  light  than  as  an  imputation  on  the  ac- 
tion of  that  committee.  He  had  never  known 
through  the  whole  of  his  parliamentary  experi- 
ence, a  select  committee  raised  on  a  subject  be- 
fore referred,  uiid  which  was  under  consideration 
by  a  committee,  unless  that  committee  had  refu- 
sed to  act,  or  had  treated  the  subject  in  a  very  im- 
proper manner.  And  what  he  now  complained 
of  was  that  the  gentleman  should  ask  for  a  select 
committee  whom  he  proposed  should  be  charged 
with  a  duty  that  had  legitimately  devolved  on  his 
committee.  And  if  that  was  not  an  allegation — 
a  reflection  or  an  imputation  on  the  committee 
that  had  the  matter  in  charge,  he  did  not  know 
what  was.  He  did  not  desire  for  a  moment  to 
arrogate  to  himself  any  duties  that  properly  be- 
longed to  any  other  committee  ;  but  when  he 
looked  at  the  classification  of  subjects  adopted  by 
the  Convention  and  that  part  which  had  been 
!  to  his  committee,  he  saw  clearlv  that  it  was  a 


of  putting  his  views  on  this  subject  on  record. 
But  he  would  ask  that  gentleman  it  he  could  not 
re.idily  hereafter,  iti  committee  of  the  whole,  give 
his  reasons  for  dis.sen;,  uui  by  an  amendment  then 
and  there  record  his  views  ?  Was  there  any  pro- 
Was  there  any  gag  in  lorce  there 
— certainly  not.  Was  there  not  also  another  mode 
by  which  the  gentleman  could  have  placed  hirn- 
self  upon  lecoui?  There  certainly  was  nothing' 
in  I  he  recent  expression  of  the  House  to  prevent 
the  H'inority  of  a  committee  from  presenting  pro- 
positions counter  to  or  varying  from  the  report  of 
the  majority;  they  might  both  he  presented  at  the 


s*nine  time,  and  both  go  on  record  at  the  s-arne 
time;  and  thi.s  would  have  been  perfectly  parlia- 
mentary, and  by  far  the  most  judicious  course. — 
It  would  also  have  been  much  more  appropriate 
for  (he  gentleman  to  have  made  his  speech  in 
committee  of  the  whole,  than  to  have  made  it  as 
he  has  done  here  to-day,  with  a  resolution  to  get 
up  a  new  committee  And  it  certainly  did  serin 
to  him  (Mr.  C.)  that  the  proposition  or  the  speech 
of  the  gentleman  was?  not  made  in  a  very  amiable 
manner,  or  mood.  He  might,  it  was  true,  have 
mistaken  the  gentleman's  feelings;  he  would  be 
charitable  enough  to  believe  that  the  gentleman, 
had  no  bad  feeling  or  motive  in  making  that  mo. 
tion.  But  let  that  be  as  it  might,  there  was  a, 
short  am!  proper  mode  by  which  the  gentleman 
could  ger  every  object  that  he  sought  to  effect  by 
this  resolution  ;  this  was  when  I  hey  go  into  com- 
rnit'«"e  of  the  whole  upon  the  report  which  he 
(Mr.  C  )  made  yesterday,  to  move  sections  pro- 
viding for  the  suspension  of  officers  (that  should 
be  guilty  of  malversation)  by  I  he  executive  power,, 
tin  il  the  legislature  shall  next  meet,  and  proceed 
to  impeach  and  try  them.  This  would  be  hut 
(.-(•n^iMitional  and  just,  il  was  all  that  was  re- 
quired ;  I  hen  no  one  could  be  finally  moved  until 
he  had  been  heard.  That  was  the  view  of  hist 
committee,  and  they  preferred  to  K-ave  it  *>  .m 
they  b.id  in  their  teport,  until  they  went  infa 
eonirriiM'H'  of  i!u>  \v(mk'. 

Mr.  SIMMONS  said   that  it  was  very  evident. 


duty  to  consider  this  very  subject ;  and  according-    they  could  not  arrive  at  those  results  which  every 
:  had  discussed  it  at  length.     He  saw  it  was    member  hern  desired  to  arrive  at,  and  which  ev- 
ery person  throughout  the  State  was  desirous  of 


his  duty  to   provide  the  appointment,  cornpensa 


tion,  &.c.  of  certain  officers,  (other  than  those  spe- 


seeirig  them  arrive  at,  if    they  allowed  these  per= 


cified  m  the  article  reported  by  him  but  yesterday)  smial  feelings  and  personal  reflections  to  be  in- 
another  committee  had  to  provide  other  officers  ; !  dulgert  in  whilst  discussing  such  small  matters,— - 
No.  7,  for  instance,  on  local  officers,  and  he  had  Tln-'onlv  way  to  i;-t  alone;  properly  was  to  avoid, 
no  doubt  that  the  chairman  (Mr.  ANGELA)  would  i  all  personal  feelings.  It  was  very  probable  that 
iithiully  discharge  his  duty,  and  so  with  every  the  differences  between  the  gentleman  from  St 
other  committee.  Now  it  is  very  probable  that  oth>  j  Lawrence  (Mr.  PKHKINS,)  and  the  gentleman 
er  committees  may  create  other  oiiicers  riot  known  from  Otsego  (Mr.  CHATFIELD,)  had  originated 
to  the  present  constitution  or  laws;  and  the  mode  entirely  through  some  mistake.  The  gentleman 
jointment  &c.  of  all  these  not  local,  would  :  from  St.  Ltuvvonce  (Mr.  PERKINS)  supposed  that 
y  belong  to  his  eofamittee  No.  r>;  and  theiv-  the  rule  adopted  tln?ofher  day  precluded  minority 


160 


reports  entirely ;  but  he  did  not  take  this  view 
of  the  case  by  any  means;  the  gentleman  (Mr. 
PERKINS)  could  have  presented  a  counter  report ; 
and  he  would  not  at  all  like  to  go  into  committee 
of  the  whole  upon  this  subject  without  a  report 
upon  it.  The  gentleman  having  omitted  to  use 
his  privilege  at  the  right  time  ought  to  have  it 
restored  to  him;  so  that  before  we  considered  the 
majority  report  we  have  the  views  of  the  minor- 
ity embodied  on  paper.  It  was  true  that  as  the 
rule  read  appointing  the  committee  No.  6,  it  did 
not  in  so  many  words  speak  of  the  removals  from 
office  of  any  of  the  persons  there  named;  yet  that 
certainly  must  have  been  its  intent  and  meaning. 
It  spoke  of  their  "  election,"  "  appointment," 
"  powers,"  "  duties"  and  "  compensation."  Now 
it  certainly  never  was  purposely  designed  to  omit 
their  "  tenure  of  office,"  or  the  power  of  remo- 
ving them  for  delinquency,  or  of  suspending  them 
for  probable  cause.  In  committee  No.  7,  the 
"  tenure  of  office,"  is  expressly  named.  And  no 
doubt  it  was  an  unintentional  omission  in  the 
phraseology  of  the  title  of  committee  No.  6. 
He  should  like  to  have  the  views  of  Mr. 


Mr.  CHATFIELD  said,  that  this  was  old  par- 
liamentary law — as  old  and  universal  as  parlia- 
mentary bodies  themselves. 

Mr.  DANFORTH  .said  tha<-  he  understood  the 
usual  course  was  for  the  majority  to  bring  in  re- 
ports with  their  reasons,  but  that  the  house  could 
put  a  constraint  on  them. 

Mr.  CHATFIELD  said  undoubtedly  they  could 
limit  them,  and  they  have  done  so  here. 

Mr.  DANFORTH— yes,  so  it  appears.  And 
that  was  the  reason  the  gentleman  from  St.  Law- 
rence (Mr.  PERKINS)  felt  induced  to  adopt  the 
course  he  had.  He  (Mr.  D.)  belonged  to  com- 
mittee No.  6,  and  he  did  not  assent  to  all  that  re- 
port. 

Mr.  CHATFIELD  asked  him  if  he  did  not  as- 
sent to  the  portion  of  it  under  discussion,  and  to 
its  being  presented, 

Mr.  DANFORTH  said  he  did  ;  but  it  was  only 
a  partial  report ;  but  he  wished  Mr.  CHATFIELD 
to  inform  him  how  the  minority  were  to  present 
their  views  if  they  now  wanted  to  do  so  ? 

Mr.  CHATFIELD  said  he  had  tried  to  inform 
that  gentleman  and  others  that  they  could  do  so 


PERKINS   on  this  point.     There  certainly  must  I  when  they  get  into  committee  of  the  whole.  Any 


be  some  powers — some  way  of  removal  from 
office ;  and  he  certainly  believed  that  this 
power  came  within  the  spirit  and  meaning  of 
the  title  of  committee  No.  6.  He  certainly  had 
considered  that  this  was  the  most  appropriate 
committee  for  the  consideration  of  the  best  modes 
for  removing  delinquents  from  office.  And  this 
power  was  a  very  important  one ;  almost  as  much 
so  as  the  power  of  appointing  to  office.  The 
history  of  the  last  10  years  clearly  showed  this; — 
there  always  seemed  to  be  a  necessity  for  the  ex- 
ercise of  that  prayer,  "  Lead  us  not  into  tempta- 
tien."  We  were  often  mistaken  in  individuals — 
and  this  power  should  be  held  in  terorem  over 
them.  The  old  mode  of  impeachment  we  have 
seen  was  ineffectual ;  and  the  arbitrary  mode  of 


member  could  then  and  there  present  his  views 
and  argue  them ;  there  was  no  difficulty  about 
that  matter  at  all ;  not  a  particle. 

Mr.  STOW  ;-aid  that  he  defciied  to  say  a  word 
or  two  in  order  to  know  if  he  understood  the 
question.  He  had  the  title  of  committee  No.  5, 
before  him;  and  as  he  construed  the  resolution,  it 
clearly  belonged  to  that  committee.  Though  it 
was  not  named  there  in  express  teims,  yet  it  be- 
longed to  it  by  implication.  There  was  no  com- 
mittee so  appropriate  as  that  commit  tec  ;  none 
were  so  proper  to  remove  tioin  office  as  those  who 
elected  and  appointed  to  office.  This,  then,  be- 
longed to  the  powers  and  duties  of  the  Executive. 
And  if  that  was  not  the  proper  construction  of 
this  resolution,  then  he  should  move  to  add  these 


giving  to  the  Governor  the  power  to  remove  when  words  to  all  the  titles  of  all  these  committees: — 
he  pleases,  is  certainly  not  a  safe  one.  And  he!  "And  the  power  and  manner  of  removal  from  of- 
wished  committee  No.  0  to  consider  and  devise  fice."  But  he  thought  he  had  named  the  proper 


some  plan ;  because  he  wished  to  have  the  viewrs 
and  experience  of  the  gentleman  from  St.  Law- 
rence on  this  subject,  and  he  was  on  that  com- 
mittee. 

He  would  therefore  offer  this  resolution : 

Resolved,  That  the  report  submitted  liy  committee  No 
6,  be  recommitted  to  afford  the  minority  of  the  committee 
an  opportunity  to  make  the  report  iriadverteutly  omitted 
by  the  minority. 

Mr.  CHATFIELD  said  that  he  must  strike  out 
the  last  sentence.  There  was  no  inadvertency  ; 
and  that  would  not  be  the  truth. 

Mr.  SIMMONS  said  he  meant  to  say  "  inadver- 
tency" on  the  part  of  the  minority  only. 

Mr.  CHATFIELD— Well,  even  that  is  not 
true. 

Mr.  PATTERSON  said  the  committee  had  on- 
ly reported  in  part ;  they  could  not  charge  them 
with  inadvertency,  for  how  could  they  tell  what 
they  meant  to  report  hereafter  ?  the  minority 
could  report  what  they  pleased. 

Mr.  SIMMONS  withdrew  his  motion. 

Mr.  DANFORTH  would  like  to  know  where 
the  minority  of  committees  got  their  authority  to 
bring  in  minority  reports,  stating  their  reasons  for 
the  same  ? 


committee,  and  there  was  no  occasion    to  appoint 
a  select  one. 

Mr.  KEMBLE  said  that  as  a  member  of  com. 
minee  No  6,  he  felt  bound  to  say  that  the  subject 
and  matter  of  this  resolution  was  informally  dis- 
cussed in  that  committee,  but  that  some  ge"tle 
men  had  expressed  doubts  as  to  whether  the  subjrct 
did  not  properly  I  elong  to  committee  No.  5,  (on 
the  powers  and  duties  of  the  Executive)  and  this 
committee,  therefore,  thought  it  was  best,  in  view 
of  this  fact  that  other  committees  might  by  their 
action,  bring  other  matters  before  them — Create 
other  officers,  &c.,  or  interfere  with  Executive 
powers — to  postpone  this  subject  to  be  decided  on 
hereafter ;  and  having  thus  decided  they  brought 
in  their  report  as  far  as  they  had  gone.  And 
therefore  he  moved  to  lay  the  resolution  on  the 
table.  This  was  carried. 

ROYAL  CHARTERS,  GRANTS,  AND  TENURES. 

Mr.  MURPHY  said,  that  seeing  the  gentleman 
from  N.  York  in  his  place,  he  would  now  call  up 
his  resolution,  No.  29. 

Resolved,  That  it  be  referred  to  the  committee  on  the 
rights  and  privileges  of  the  citizens  of  this  state,  to  inquire 
into  the  expediency  of  striking  out  so  much  of  the  four- 
teenth section  of  Article  7«  of  the  Constitution,  as  declare 


161 


that  "  nothing  contained  in  this  Constitution  shall  affect 
grants  of  land  witliin  this  state  made  by  authority  of  the 
•aid  King  (oi  Great  B  itain)  or  his  predecessors,  or  shall 
annul  ;iny  charters  to  boJics  politic  ami  d  rpoia  e,  by  him 
or  'h  m  'ma.Ie  before  that  day  ;  or  shall  artect  any  such 
grants  or  charters  since  made  by  this  state,  or  by  persons 
acting  under  i  s  authority/'-  av  verges*  and  unnecttsaiy 
and  liublt  to  popular  misconstruction;  and  of  otherwise 
amen, ling  the  said  section  so  that  the  same  shall  read  as 
follows: 

"  ^  -  All  grants  of  land  within  this  state  made  by  the 
King  of  Great  Britain  or  persons  a  -ting  under  his  autho- 
rity after  the  fourteenth  clay  of  October  one  thou-and  se- 
ven hundred  andseventy-five,  shall  be  null  and  void;  but 
nothing  contained  in  this  Constitution  shall  impair  the  ob- 
ligation of  any  debt  or  contract,  or  any  other  rights  of 
property,  or  any  suits,  actions,  rights  of  actions  or  pro- 
ceedings in  courts  ofjustice." 

Mr.  SHEPARD  said  that  he  had  no  objection 
to  the  reference  of  this  resolution  to  an  tfppfopri- 
ate  committee,  but  the  gentleman  Irum  Kings  lias 
not  selected  the  proper  committee. 

Mr.  SHEPARD  said  it  appeared  to  him  that  the 
gentleman  irorn  Kings  had  evidently  mistaken  the 
proper  committee  tor  the  reference  of  this  resolu- 
tion ;  he  proposed   to  commit  it  to  the  committee 
on  the   rights   and    piiviieges   of  citizens   of  this 
State;  now  but  a  small  portion  of  the  gentleman's 
resolution  can  properly  go  to  that  committee — only 
the  grants  to    private  individuals.     But  there  are 
two  important  branches* to  that  resolution.     First, 
the  one  that  relates  logrants  ot  land  to  individuals  ; 
secondly,  the  grants  to  bodies  politic,  corporations, 
tc.     Now,   giants  of  land    made    by  the  King  ol 
Great  Britain,  were  made  to  individuals  as  well  <is 
to  corporations.     And  the  giants  thus  made  to  in- 
dividuals, may  be  thug  very  properly  referred;  but 
the  grants  thus  made  to  bodies,  do  not  come  pro- 
perly within  the  supervision  of  that  committee. — 
So  the  2d  branch  of  the  gentleman's  resolution  as 
to  "  chaitfrs  to  bodies  political  and  corporate,  by 
him  or  them  made,"  8cc  ,  ought  not  to  go  to  com- 
mittee No.  11,  nn  the  rights  and  privileges  ol'citi- 
zens  of  this  State.    There  i"  in  fact  no  committee 
that    has   b*en    raised    in    this    Convention,    that 
that   subject  can  be   appropriately  referred  to. — 
He  did  not  see  that  it  came  within  the  peculiar 
province  of  any  of  the  present  standing  commit- 
tees.    Of  those  now  raised,  the  one  to  whom  it 
would  seem  to  be  the  most  proper  to  send  it,  was 
the  14th  committee,  the  one  on  the   organization 
&c.,  of  cities,  towns  and  villages,  and  of  which 
the  gentleman   from  Kings  (Mr.    MURPHY)   was 
himself  the  chairman.     But  at  the  same  time  it 
was  very  clear  that  vested  rights  in  a  city  or  vil- 
lage was  not  a  matter  of  city  or  village  organiza- 
tion.    It  does  not  enter  into  the  mode  of  admin- 
istering their  local  affairs  ;  it  has  nothing  to   do 
with  their  organization  ;  but  if  it  is  to  be  referred 
to   any  of  the  present  standing  committees,  the 
14th  seems  to  be  the  most  proper  one.     But,  this 
is  a  matter  ot  vast  importance  to  the   people   in 
that  part  of  the  State,  which  he  had  the  honor  in 
part   to  represent;    in  the  city   of  New   York 
great  rights  were  to  be  affected  by  the   action  of 
the   committee  on  this   subject;  and   he   would 
therefore  move  its  reference  to  a  select  commit- 
tee of  5. 

Mr.  MURPHY  was  very  happy  to  hear  the  gen 
tleman  from  New  York  (Mr.  SHEPARD)  say  that 
this  resolution  did  not  affect  the  rights  and  privi- 
leges of  citizens  of  any  portion  of  this  State.     It 
was  precisely  what  he 


Mr.  SHEPARD  wished  to  correct  the  gentle- 
man ;  what  he  said  was  that  it  did  not  so  peculiar- 
ly affect  the  rights  and  privileges  of  the  citizens 
of  this  State,  as  to  be  referable  to  the  committee 
on  the  rights  and  privileges  of  the  citizens.  Eve- 
ry thing,  however,  that  was  or  could  be  done 
here,  must  directly  or  indirectly  aft'ect  every  citi- 
zen more  or  less. 

Mr.  MURPHY  said— He  understood  the  gentle- 
man. And  if  this  did  not  thus  affect  the  rights 
and  privileges  of  any  of  the  citizens  of  this  State, 
then  the  view  in  regard  to  the  reference  which 
he  had  taken  of  it  was  fortified  by  the  views  of 
the  gentleman  from  New  York  (Mr.  SHEPARD.) 
But  in  speaking  of  this  question  of  reference,  the 
gentleman  from  New  York  has  fallen  into  the 
very  error  which  he  (Mr.  M.)  had  sought  to  re- 
move by  that  resolution.  He  (Mr.  M.)  had  ori- 
ginally proposed  to  refer  the  two  parts  of  it  to 
two  distinct  committees.  He  then,  the  other  day, 
called  it  up,  and  modified  it,  saying  that  he 
would  waive  the  separate  reference  of  its  parts  ; 
that  probably  in  first  referring  it  he  had  been 
wrong,  and  that  the  reference  belonged  properly 
to  committee  No.  ]  1  on  the  rights  and  privi- 
leges of  citizens,  and  to  that  committee  he  said 
he  should  move  its  reference ;  because  as 
he  then  said  the  clauses  proposed  to  be 
struck  out  were  contained  in  that  part  of  the  con- 
stitution which  had  been  referred  to  committee 
No.  11,  (article  7  of  the  present  Constitution,  sec. 
14,  referring  particularly  to  the  rights  and  privi- 
leges of  citizens.)  Then  why  should  the  resolu- 
tion not  be  referred  to  that  committee.  It  was 
true  that  so  much  of  the  resolution  as  related  to 
corporations  was  not  technically  referable  to  that 
committee  ;  but  in  reality,  even  that  subject  very 
nearly  and  intimately  concerned  the  rights  and 
privileges  of  citizens.  The  gentleman  from  New 
York  (Mr.  SHEPARD)  contends  that  a  part  re- 
lates to  grants  of  land  to  individuals— and  the 
other  part  to  bodies  politic  and  incorporate  ;  (that 
have  no  existence,  except  what  is  termed  a  legal 
existence ;)  and  that  therefore  the  reference  is 
wrong  ;  but  he  contended  the  whole  subject  more 
or  less  affected  all  citizens  of  the  State,  and  their 
rights  and  privileges ;  and  therefore  ought  to  go  to 
the  committee  having  thatvery  important  matter  in 
charge.  The  gentleman  had  talked  about  vested 
rights.  Now  he,  (Mr.  M.)  did  not  wish  to  interfere 
with  vested  rights ;  as,  from  his  resolution,  some 
had  supposed.  And  if  the  gentleman  had  examined 
this  matter,  he  would  have  seen  a  reservation  in 
this  resolution  on  this  very  subject,  in  favor  of 
vested  rights.  He  did  not  propose  to  attack  any 
vested  rights  here  at  all.  But  he  did  propose  *a 
thorough  examination  into  all  that  political  pow- 
er, arising  out  of  what  was  called  vested  rights 
in  corporations ;  and  which  was  so  often  shame- 
fully exercised  by  corporations  to  the  injury  of 
the  rights  and  privileges  of  the  great  body  of  citi- 
zens. This  was  what  he  did  intend  most  fully  that 
the  Convention  should  inquire  into:  this  corruptly 
exercised  political  power,  which  some  gentlemen 
seemed  to  regard  as  in  a  measure  sacred — that  must 
not  be  examined  into  or  touched  in  any  way. — 
But  he  denied  this  position;  for  the  "  Rights  of 
man,"  (as  had  been  said  by  a  distinguished  writer 
many  years  ago,)  the  rights  of  man  were  not  the 
rights  of  one  generation,  and  they  cannot  be  mo- 


162 


nopolized — they  belong  to  all !    And  if  there  i 
any  thing  in  the  charter  of  any  city,  &c.,  whic 
interferes  with  the  political  rights  of  man,  it  mus 
fall;  powers  of  all  kinds  which   interfere  wit 
man's  individual  and  political  rights  cannot  stan< 
— they  must  fall.     They  cannot  be  vested.     Th< 
gentleman  has  also  fallen  into  a  further  error  in 
supposing  that  there  is  something  peculiarly  pow 
erful  in  royal  grants.     Now,  the  people  here  sue 
ceeded  to  all  the   royally   conferred  power  ;  thej 
succeeded  to  all  the  powers,  rights   and  preroga 
tives  enjoyed  in  this  country  by  royalty  previou 
to  the  Revolution.     After  that  Revolution,  the} 
were  the  sole  depositaries  and  exercisers  of  these 
powers.     And  whatever  the  King  of  Great  Britain 
could  have  done  before  that  Revolution,  the  people 
could  do  now;  and  what  they  cannot  now  do,  the 
King  could  not  have  done  then.     The  clauses  he 
desired  to  strike  out  of  the  Constitution  had  been 
very  mischievous  and  injurious  to  the  people  in 
their  tendencies.     We   found  men  even  in  high 
places — and  found  members  in  that  Convention — 
and  they  found  legislative  bodies  putting  construc- 
tions on  these  clauses  of  the  Constitution  which 
have  frequently  been  repudiated  by  the  most  em- 
inent men,   and  by   the  Courts   of  Law.     These 
clauses  had  led  to  the  perpetration  of  most  mon- 
strous    and     mischievous     errors ;      not     only 
in  the    case   of  the  city  of  Albany,   which    he 
referred   the  other  day,   but  in    the  legislature. 
There  was  an  instance  of  a  town  setting  up   this 
same   question   of  royal    grants.      The   town   of 
Huntington  in  Suffolk  co.,  was  a  royally  charter- 
ed town,  and  the  legislature  gravely  referred  it  to 
the  Attorney  General  then,  now  chief  justice,  to 
get  his  opinion,  whether  they  possessed  the  pow- 
er to  divide  the  town  of  Huntington,   in   conse- 
quence of  its  being  a  royal  grant  and  charter. — 
What  did  he  do  ?  He  reported  as  he  (Mr.  M.)  con- 
tended now.    He  stated  in  his  opinion  (Assembly 
documents    of  1830,)  that  this  very  proposition 
which  it  is  now  sought,  by  this  resolution,  to  have 
expunged  from  the  Constitution,  was   an  entire 
nullity,   and  had  no  business   there.     That  was 
the  opinion  of  your  present  chief  justice.     Then 
why  not  let  this  go  to  the  committee,  selected  by 
the   President,  from  the  body  of  the  house,  and 
in  his  opinion  proper  to  take  into   consideration 
the  rights  of  citizens  of  this  State,  and  those   of 
other   than   its  citizens  in  this  matter,    and    to 
look  to  the  rights  of  the  whole  State.     He  knew 
that  this  touched  very  closely  the  opinions  of  his 
friends  from  New  York  and  the   citizens  there — 
but  there  vrere  those  even  there  who  did  not  be- 
lieve that  chartered  rights  were  of  such  a  nature 
as  to  prevent  an  exercise  of  sovereignty  here  with 
a  view  to  correct  evils.     No,  the  spirit  of  Leggett 
still  lives  there,  and  there  were  many,  very  many- 
there  who  wished  to  see  this  doctrine  of  vested  po- 
litical rights  broken  up.     With  a  view  of  having 
it  sent  to  the  proper  committee,  and  not  to  those 
whose   peculiar  interests  and  local  feelings  were 
involved— he  desired  it  should  go  to  the  commit- 
tee at  the  head  of  which  was  the  most  experien- 
ced and  venerable  member  from  Dutchess. 

Mr.  SHEPARD  certainly  did  not  propose  to 
examine,  nor  did  he  in  any  degree  examine,  the 
section  of  the  Constitution  which  the  gentleman 
from  Kings  had  introduced  by  way  of  amend- 
ment. It  had  appeared  to  him  that  to  examine 


that  would  be  to  discuss  the  merits  of  this  ques- 
tion— and  with  the  merits  of  it  at  this  stage  of 
the  proceedings  he  determined  to  have  nothing 
to  do.  The  gentleman  from  Kings  had  not  an- 
swered his  (Mr.  S.'s)  objection  to  the  reference 
except  by  stating  that  the  particular  section  of 
the  Constitution  which  he  proposes  to  strike  out, 
and  in  place  of  which  he  proposes  to  insert  his 
substitute,  was  arranged  in  the  7th  Article  of  the 
present  Constitution,  among  the  rights  and  privi- 
leges of  citizens  of  the  State.  So  it  was— that 
was  conceded,— but  there  were  other  things  ar- 
ranged there  too.  There  were  propositions  in  re- 
gard to  the  rights  of  toll,  and  some  other  matters 
not  peculiarly  the  subject  of  privilege  to  the  citi- 
zens of  the  State. 

Mr.  MURPHY  said,  as  he  stated  before,  he  did 
not  propose  in  his  resolution  to  interfere  with 
the  rights  of  property. 

Mr.  SHEPARD  understood  the  gentleman  to 
say  so.     He  confessed  he  did  not  understand  the 
section  to  be  as  broad  as  that — and  whether  it  was 
so  or  not  he  did  not  feel  at  liberty  to  examine,  as 
tie  was  not  discussingthe  merits  of  the  proposition, 
[f  he  (Mr.  S.)  should  undertake   to  convince  the 
PRESIDENT,  that  the  vested  rights  of  the  city  of 
>?ew  York  were  now  secured,   that  the  proposi- 
tion was  substantially  defective  in  its  merits,  he 
would  be  decided  to  be   out  of  order.     Now,  he 
would  take  up  the  argument  he  left  off  a  moment 
since.     And  supposing  that  the  7th  article  of  the 
Constitution  was  entirely  made  up  of  the  enume- 
ration of  the  rights  and  privileges  of  citizens  of 
the  State,  still  that  would  propose  nothing  in  fa- 
vor of  the  present  reference.     Why  ?  Because  you 
appointed  a  standing  committee,  and  referred  to 
hem  various  subjects,  without  any  reference  to 
he  particular  part  of  the   Constitution  in  which 
hese  subjects  were  placed  at  present.     Accord- 
ngly  his   (Mr.  S.'s)   colleague   from   New  York 
lad  reported  upon  the  Veto  power  in  connection 
•vith  the  duties  of  the  Executive  of  the  State. — 
These  were  not  found  together   in   the  present 
Constitution,  but  were  widely  separated      Now, 
le  must  say,  to  pass  on  to  .another  consideration, 
hat  he  was  under  peculiar'obligations  to  the  gen- 
leman  from  Kings,  for  placing  on   his  lips  argu- 
ments that  he  did  not  use,  and  he  would  concede 
hat  all  the  arguments  so  placed  had  been  satis- 
ictorily   and  triumphantly  answered.     But   he 
/ould  not  say  as  much  for  the  arguments  he  (Mr. 
1.)  had  placed   on   his   own  lips.     Now,  he  did 
ot  stand   here  as  the  advocate  of  Royal   grants, 
xcept  so  far  as  they  had  been  acquiesced  in  by 
le  people,  and  were    acted    upon   for  the    ad- 
antages  of  the    interests    of  the  State,    by  the 
rantees  themselves.     He    supposed  that  vested 
ights  were  sacred,  though  the  gentleman    ap- 
eared   to  think    not.       He  supposed  that  aside 
•om   any    provision  in    the   Constitution,    that 
ley  would  be  prelected  by  the  genius  and  spirit 
four  laws.     There  was  no  danger  whether  the 
roposition  was   in  the   Constitution  or  stricken 
ut.     But  there  was  a  large  class  of  rights  which 

city  of  New  York  exercises.  It  is  an  ex- 
ensive  corporation  and  stood  in  two  relations  to 
ic  people  of  the  State.  First,  as  a  large  polit- 
^al  corporation,  exercising  the  rights  of  political 
overnment,  and  in  the  second  place  as  a  large 
rivate  corporation,  exercising  the  rights  of  such 


163 


corporations,  taking  fees,  and  deriving  a  large 
revenue  from  sources,  such  as  a  mere  public  cor- 
poration, had  no  right  to  derive  it  from.  The 
right  of  the  corporation  had  been  secured  by  a 
long  chain  of  statutes,  and  by  a  number  of  Courts 
extending  through  many  years,  and  it  seemed  to 
him  that  it  would  be  entirely  unwise  for  the 
mere  purpose,  as  the  gentleman  in  conclusion 
states,  of  avoiding  popular  misconstruction,  has- 
tily to  cast  aside,  these  sections  of  the  Consti- 
tution that  were  inserted  by  the  wise  foresight 
of  the  Convention  of  1821,  for  the  purpose  of  se- 
curing those  great  private  rights  about  which  we 
had  been  speaking.  It  seemed  to  him  to  be  unwise 
for  that  purpose  merely,  to  strike  these  proposi- 
tions out,  without  the  fullest  and  most  compre- 
hensive examination.  Now  he  desired  that 
examination  should  be  made  by  a  proper  commit- 
tee. He  had  no  objection  to  the  committee  of 
which  the  venerable  gentleman  from  Dutchess 
(Mr.  TALLMADGE)  was  chairman,  except  that  in 
the  order  and  division  of  the  business,  it  had 
nothing  to  do  with  the  subject.  And  it  seemed 
to  him,  that  would  be  a  conclusive  objection. — 
It  applied  to  every  other  committee  as  well,  as 
he  would  undertake  to  demonstrate,  if  the  gen- 
tleman from  Kings  should  think  differently. — 
There  was  no  alternative'but  a  special  commit- 
tee, and  there  was  in  the  magnitude  of  the  ques- 
tion itself,  every  thing  to  call  for  its  considera- 
tion by  a  special  committee  at  the  hands  of  the 
Convention. 

Mr.  MORRIS  agreed  with  the  gentleman  from 
Kings,  that  the  proper  reference  of  this  subject 
was  to  the  standing  committee  on  the  rights  and 
privileges  of  citizens.  He  agreed  also  with  that 
gentleman,  that  he  had  correctly  stated  the  law 
on  the  subject  of  corporations,  &c.;  and  he  (Mr. 
M.)  did  not  know — he  was  not  aware  that  there 
had  been,  any  different  opinion  entertained  since 
the  delivery  oi  the  learned  opinion  to  which  the 
gentlemar  had  referred.  No  one  now  dreamed 
or  contended  that  political  power  given  to  corpo- 
rations of  any  kind,  could  not  be  touched.  That 
was  conceded  by  all — all  contended  that  it  only 
required  a  two-thirds  vote  to  effect  or  alter  them, 
whether  granted  by  king  or  given  by  people. 
There  was  no  man  any  where,  even  though  the 
spirit  of  Legget  was  not  there,  that  would  con- 
tend for  a  contrary  doctrine.  Then  the  object  of 
the  clause  in  the  Constitution  which  the  gentle- 
man wishes  to  have  stricken  out  was  nugatory 
and  could  only  be  to  preserve  private  rights.— 
When  we  lawyers  said  private  rights,  we  meant 
the  rights  of  property  of  incorporations  as  well 
as  of  individuals.  it  did  strike  him  therefore 
that  the  proper  committee  was  the  one  the  gen- 
tleman from  Kings  had  selected — on  the  rights 
privileges  of  the  citizen — whether  the  citizer 
was  made  by  God  or  manufactured  by  man. 

Mr,  SHEPARD  was  not  aware  before  that  a 
corporation  was  a  citizen — he  was  very  mud 
obliged  to  his  colleague  for  informing  him  of  th< 
fact. 

The  question  was  then  put  on  referring  to  tht 
eleventh  standing  committee,  and  it  was  agreet 
to 

ELECTION  OF  COUNTY  OFFICERS  BY  THE  PEOPLE 
Mr.  CLYDE  offered  the  following  resolution 
which  was  adopted : 


Resolved,  That  it  be  referred  to  the  committee  on  the 
ppointment,  tenure,  &c.,  of  local  officers,  to  enquire  into 
he  expediency  of  providing  in  the  Constitution  for  the 
ilection  by  the  people,  of  co^timy  treasurers,  district  attor- 
neys and  surrogates. 

THE  TRIAL  BY  JURY. 

Mr.  MILLER  offered  the  following,  which  was 
adopted  : 

Resolved,  That  it  be  referred  to  the  committee  on  the 
rights  and  privileges  of  citizens  of  this  State,  to  examine 
nto  the  expediency  of  incorporating  into  the  Constitution 
he  following  article  :- 

The  right  of  trial  by  jury  shall  forever  remain  inviolate, 
ut  the  legislature  shall  have  power  in  its  discretion  to  fix 
he  numb«r  and  determine  the  manner  of  drawing  and  se- 
ectiug,  and  to  fix  the  compensation  both  o!  the  grand  and 
)etit  jury. 

The  PRESIDENT  said  that  the  question  would 
irst  be  taken  on  the  motion  to  refer  to  a  select 
committee,  and  it  prevailed. 

Mr.  STRONG  moved  to  lay  the  present  order 
of  business  on  the  table,  in  order  to  take  up  the 
unfinished  business  of  yesterday. 

The  PRESIDENT  asked  the  gentleman  to 
waive  his  motion,  until  he  announced  certain 

REPORTS  FROM  PUBLIC  OFFICERS, 
[n  answer  to  resolutions  of  the  Convention: 

From  the  Secretary  of  State  a  list  of  the  State 
officers  whose  duties  are  local.  Referred  on  mo- 
tion of  Mr.  CHATFIELD  to  committee  No.  7, 
and  ordered  printed. 

Mr.  SHEPARD  suggested  that  as  these  reports 
contained  important  statements  of  facts,  it  might 
be  desirous  to  have  a  few  extra  copies.  He  would 
therefore  move  the  printing  of  250  extra  copies. 
This  was  agreed  to. 

Also,  a  report  from  the  Comptroller  in  relation 
to  the  Common  School,  Literature  and  United 
States  Deposite  Fund.  This  was  referred  to  the 
committee  on  Common  Schools,  and  ordered 
printed  as  above. 

The  PRESIDENT  then  put  the  question  on 
Mr.  STRONG'S  motion,  and  it  was  agreed  to. 

THE  POWERS  AND  DUTIES  OFTHE  GOVEKNOR&c. 
The  question  being  on  granting  leave  to  the 
committee  of  the  whole,  on  the  proposed  article 
to  the  Constitution  in  relation  to  powers  and  du- 
des of  the  Governor  and  Lieut.  Governor  : 
The  PRESIDENT  awarded  the  floor  to 
Mr.  KIKKL^ND  who  said, that,  he  did  not  intend 
•  o  detain  the  cotniuiitee  but  a  kv.v  moment*,  aiKi 
he  hoped  to  receive  us  atleniion.  No  loss  of  nine 
was  involved — I'm  he  should  be  obliged  to  consume 
the  same  amount  in  comiuiliee  of  the  whole  as  he 
should  now  here.  Ai.d  he  intended  to  say  no  more 
on  I  hi.s  >ui)ji:ct  alter  i  ms,  unless  it  might  be,  in  the 
way  of  explanation,  or  domei  hmy  of  ihai  kind. — 
He  was  speaking  ytsu-iclay  in  relation  to  I  he  loim 
of  the  report,  and  nad  presented  some  general  con- 
siderationsiipplicabletu  no  particular  section  of  I  Ins 
— but  to  all  other  capons.  !„  had  bi-eo  Conceded, 
however,  that  this  Convention  ought  to  have  befoie 
it  when  the  iv p  •!'!  was  presented,  only  suun  m.iiu-r 
as  to  sim\v  .\  hat  amendments  to  I  he  «  xistmsi  con«it- 
tutinn  were  proposed.  He  thought  Ihissul-ject  was 
>ubsi,inti<illy  attained  t>y  I  he  resolution  adopted  if: is 
morning  in  relation  to  the  printing  of  thp  reports. 
This  would  give  every  gentleman  an  opportunity 
to  distinguish  what  amendments  were  proposed. 
i  But  when  we  came  to  a  further  question  in  the 
I  course  of  our  deliberations,  it  may  be  a  matter  of 


164 


serious  and  grave  discussion  as  to  what  manner 
the  amendments  shall  be  presented  to  the  people 
— and  whether  they  should  then  be  called  upon 
to  vote  also  upon  the  existing  parts  of  the  Con- 
stitution, to  which  no  amendments  have  been  re- 
commended, as  well  as  to  those  to  which  there 
had  been.  But  this  was,  perhaps,  not  a  very 
material  matter  now,  and  he  would  say  no  more 
on  it.  What  he  would  now  proceed  to  say  was 
in  reference  to  a  matter  which  he  apprehended 
had  an  important  reference  as  to  the  manner  in 
which  the  business  of  the  Convention  should  be 
conducted.  Many  members  of  the  Convention, 
and  many  citizens  out  of  it,  had  appeared  to  think 
that  we  were  assembled  here  not  for  the  purposes 
of  amending  the  Constitution,  but  for  legislation. 
This  was  not  an  original  idea  with  him,  but  it 
had  been  remarked  by  many  members  of 
the  Convention.  He  did  not  now  intend  to  go 
into  a  detailed  examination  of  every  section 
of  this  report,  but  merely  to  call  the  attention 
of  members  to  its  different  sections.  He  found 
no  fault  with  the  committee,  and  it  was  per- 
fectly right  in  presenting  the  first  report  that 
the  error  should  be  in  reporting  too  much  rather 
than  too  little.  There  were  in  it,  to  his 
view  a  number  of  sections  relating  entirely  to 
subjects  within  the  control  of  legislation,  and 
for  that  reason,  he  was  opposed  to  their  adop- 
tion as  amendments  to  the  Constitution.  By  way 
of  illustration,  he  would  refer  to  the  provision 
that  the  Governor  should  have  a  fixed  salary,  &c. 
This  was  a  matter,  he  apprehended,  entirely 
within  the  control  of  the  legislature,  and  one 
which  should  be  left  to  them  as  it  had  been  for 
the  last  25  years,  and  the  existing  constitution,  it 
appeared  to  him,  was  fully  adequate  for  all  of 
their  purpose.  So  in  relation  to  the  provision  for 
the  compensation  of  the  Lieutenant  Governor. — 
And  without  going  further  into  details,  he  object- 
ed to  many  of  the  amendments  as  trifling  and  as 
proposing  to  incorporate  legislative  enactments 
into  the  Constitution,  well  enough  in  themselves 
but  entirely  unnecessary  by  way  of  amendment 
to  that  instrument.  No  amendment  should  be 
made  except  what  was  actually  necessary,  and  as 
simple  as  possibly.  So  in  relation  to  the  section 
which  provided  that  the  Governor  and  Lieutenant 
Governor  should  not  ex-ofncio  hold  any  other  of- 
fice— that  practically  was  now  provided  for. — 
There  were  many  others  also,  which,  although 
he  was  favorable  to  them,  he  did  not  deem  practi- 
cally of  sufficient  importance  to  the  rights  of  the 
people  to  require  an  insertion,  by  way  of  amend- 
ment, to  the  existing  Constitution.  He  would 
but  refer  to  another  section,  which  he  objected 
to  as  being  nugatory  in  its  operation — and  as  de- 
cided by  the  Supreme  Court,  in  its  effect,  a  vi- 
olation of  the  Constitution  of  the  Union.  He 
referred  to  the  10th  section  in  relation  to  the  ar- 
rest  and  delivery  of  criminals  to  foreign  powers. 
He  would  refer  the  Convention  to  the  report  of  a 
case  in  which  this  question  was  elaborately  dis- 
cussed, and  the  opinion  of  the  Judges  of  the  Su- 
preme Court  given  in  support  of  his  position.  It 
would  be  found  in  the  14th  of  Peters'  page  540— 
the  case  of  Holmes  against  Jennison  and  others. 
Mr.  K.  here  read  from  the  opinion  the  opinion  of 
the  Justices  to  show  that  this  power  did  not  exist 
in  the  State  governments.  He  wanted  therefore 


no  such  provision  in  th«  Constitution.  And  in 
reference  to  this  very  matter  the  10th  article  of 
the  Treaty  of  Washington  provided  expressly  for 
the  surrender  of  all  criminals  of  a  certain  descrip- 
tion alluded  to  in  that  section,  and  since  then 
other  treaties  of  a  similar  character  had  been  en- 
tered into  with  other  countries.  Before  he 
closed  he  would  take  the  liberty  of  repeating 
briefly  his  reasons  why  the  report  should  not  be 
adopted  and  why  the  committee  of  the  whole 
should  not  have  leave  to  sit  again:  In  the  first 
place  as  to  the  form  in  which  it  was  in.  In  the 
second,  over  and  above  all  parts  of  the  existing 
Constitution,  reported  with  amendments,  it  re- 
ported others  clearly  within  the  legislative  power, 
entirely  unnecessary  though  good  enough  in  them- 
selves. In  the  3rd  place,  as  rendered  nugatory 
by  the  Constitution  of  the  Union.  He  apprehend- 
ed we  had  enough  to  do  with  what  amendments 
were  clearly  necessary — and  he  hoped  this  Con- 
vention would  follow  the  example  of  the  immor- 
tal authors  of  the  Constitution  of  the  Union,  in 
the  clearness  and  brevity  of  their  amendments. 
Mr.  K.  then  quoted  from  the  opinion  of  the  Chief 
Justice  in  the  case  above  referred  to,  an  eulogium 
on  the  Constitution  of  the  U.  S.  for  its  excellence 
in  this  respect.  He  had  now  accomplished  the  ob- 
ject he  had  in  view,  and  he  should  not  trouble  the 
Corvention  further  on  this  report  except  perhaps 
it  might  be  to  explain  something  he  had  said  on 
this  occasion. 

Mr.  STRONG  said  he  had  looked  forward  with 
a  great  deal  of  anxiety,  and  he  believed  the  people 
of  this  State  had  been  looking  with  equal  anxiety 
to  the  time  when  this  Convention  would  go  into 
committee  of  the  whole,  and  begin  to  do  what 
might  properly  be  called  the  substantial  work  of 
the  Convention.  We  did  yesterday  arrive  at  that 
order  of  business  and  he  had  heard  a  number  of 
gentlemen  express  their  surprise  that  we  must  be 
deterred  from  going  on  with  that  business  in  the 
manner  they  had  been.  They  were  disappointed 
to  see  it,  for  they  expected  when  they  got  into 
committee,  that  they  should  go  to  work  in  good 
earnest.  But  he  was  not  disappointed.  He  well 
knew,  so  far  as  he  could  judge,  that  his  honorable 
friend  from  Oneida  was  charged  with  a  speech, 
which  if  he  did  not  deliver  might  prove  in- 
jurious to  him.  He  was  satisfied  also  that 
he  would  take  the  very  first  opportunity  to  deli- 
ver it,  and  he  did.  As  he  had  expected  such  a 
state  of  things  as  had  existed,  he  was  not  disap- 
pointed in  the  course  pursued.  He  would  not 
have  said  a  word  on  this  occasion,  or  have  taken 
up  the  time,  had  he  not  apprehended  that 
the  long  and  eloquent  speech  of  the  gen- 
tleman, possessing  as  he  did  the  ability  to 
spread  out  his  views  in  glowing  language, 
and  in  sailing  sentences,  might  have  its 
weight  on  the  house,  and  that  it  might  be  pro- 
per for  an  humble  layman  to  reply  to  it. — 
Having  made  these  general  remarks, he  would  pro- 
ceed to  answer  a  few  of  the  objections  the  honora- 
ble gentleman  had  raised  to  the  report  of  his  hon- 
orable friend  from  New- York.  And  he  might  as 
well  say  here  that  his  friend  did  not  need  his 
aid  to  defend  that  report — he  wielded  a  giant 
tongue.  The  gentleman  from  Oneida  had  said 
that  we  were  assembled  here  for  the  purpose 
of  carrying  out  the  act  of  the  legislature — 


165 


and    to    make    amendments    to    the    Constitu- 
tion.    This  was  the  first  subject  he  took  up.     He 
first  informed  this  Convention,  and  he  (Mr.  S.)  be- 
lieved it  was  the  first  time  we  had  it  so  seriously 
announced  to  us — of  that  fact.     Now  it  was   the 
easiest  thing  in  the  world  to  start  on  false  premises 
and  the  conclusion  was  always  of  the  same  char- 
acter.    It  was  always  found  that  lawyers  when- 
ever their  case  was  a  hard  one — when   they   had 
up  hill  work— they  always  began  with   false  pre- 
mises, and  the  conclusion  was  of  the   same  char- 
acter.    Now  the  gentleman  started  upon  the  first 
place  with  the  assumption   that  the   Convention 
had  no  other  power  or  authority  only  that  which 
was  given  it  by  the  act  to  which  he  had  referred. 
Where  did  the  gentleman  learn   that?     He  (Mr. 
S.)  went  back  of  that  act.     He    would   ask   the 
gentleman— and    he   asked  the    question   in   all 
kindness  and  good  feeling— where  he  got  the  au- 
thority for  the  legislature  to  pass  that  act  ?     Was 
there  one  word  in  the  old  constitution  giving  them 
the   power  to   do   it?     How  then  came  they  by 
any  authority  to  pass  an  act  restricting  the  action 
of  this  Convention  in  any  manner  whatever  ?— 
And  yet  they  had   restricted   this   Convention — 
they  had  said   what  our  pay  should  be,   but  they 
had"  no    authority  for  saying  that  they  had  con- 
trol  over  this   Convention— ^we  were  not  bound 
by  a  single  line  of  that  act,  for  we  are  over  and  be- 
yond that  legislature.  Now  he  would  ask,  if  these 
premises  were  so  on  what  foundation  the  gentle- 
man in  the  first  place  based  his  argument.     The 
next  subject  the  gentleman   took   up — and   here 
(Mt.  S.)  must  confess  was  a  point  very   difficult 
for  him  to  answer  -  not   understanding  all   about 
it,  and  if  he  was  not  right  he   hoped   he   would 
be  excused,  as  it  would  not  be  intentional.    He  had 
taken  it  down  as  well  as  he  could — and  he  under- 
stood the  gentleman  to  say  something  about  several 
sections  of  report  being  "  in  hakverby."      [Great 
laughter. ]Now,he  being  a  humble  layman,and  not 
understanding  those  phrases,  confessed  he  did  not 
kpow  what  ihat  meant.  But  he  had  too  high  an  opi- 
nion  of  the   gentleman  to  believe   that  he   in- 
tended to   lay  any   clap-trap   for    us.      He    did 
not  know,  or   he   would  give  some  reasons  on 
the  subject;  but  he  did  not  know  any  way  to  ex- 
plain,  if  he   did   not  understand   the   terms. — 
But  it  would  please  him  very  much,  if  there  was 
no  objection,  and  it  would  take  but  a  moment,  to 
tell  an  anecdote.     Two  French  barristers  dispu- 
ted one  day  about  a  law  point  before  a  judge,  but 
they  could  not  settle  it,   when   one   said   to  the 
other  we  will  leave   it  to  the  judge.     This   was 
agreed  on.  and  the  case  was  stated  to  him  by  one 
of  them — but  the  judge  made  no  reply — merely 
shook  his  head.     "  Ah  !"  said  the  counsel  on  the 
oljher  side,  "  when  my  lord  shakes  his  head,  there 
is  nothing  in  it"     [Renewed   laughter.]      He 
now  came  to  the   gentleman's  third  proposition, 
as  he  introduced  them — that  in  the   language   ol 
the  act,  we  were  here  to  make  amendments  only. 
Here  was  a  strong  word — "  Amendments  only.' 
He  would  say  a  word  here  in  behalf  of  his  friend's 
report,  which  seemed  to   be  very   appropriate. — 
He  would  ask  seriously  any  member  of  the  Con- 
vention  to  answer  this   question  ?     Suppose  that 
his  friend  from  New  York  had  made,  as  the  gen- 
tleman contended  he  should,  his  report,  contain- 
»pg  some  articles  with  but  a  few  words   altered 


and  had  left  out  all  of  the  original  constitution— 
e  (Mr.  S.)  would  ask  what  kind  of  a  skeleton 
ould  that  have  been  ?  No  one  could  have  known 
any  thing  about  it.  The  gentleman  seemed  to 
lang  with  a  great  deal  of  energy  to  the  doctrine 
hat  we  were  only  to  make  amendments,  and  to  do 
nothing  further.  Suppose  that  we  should  conclude 
merely  to  alter  one  word  in  the  old  Constitution, 
and  report  that  to  the  people,  would  it  not  be  an 
mendment  ?  Now  where  is  the  doctrine  that 
we  are  only  to  make  amendments,  and  what  kind 
of  a  Constitution  would  we  send  down  to  the  peo- 
le  ?  If  the  gentleman's  course  was  pursued,  we 
hould  send  down  the  snatches  of  a  Constitution 
— a  little  here  and  a  little  there — and  the  people 
would  not  know  what  it  meant.  They  expected 
t  to  be  sent  to  them  in  such  a  shape,  "  so  tnat  he 
who  reads  may  understand — and  he  who  runs 
need  not  err  therein."  That  was  what  the  peo- 
expected,  and  what  he  believed  it  was  the 
jounden  duty  of  the  Convention  to  do.  He 
therefore  believed  his  friend  from  New  York  had 
taken  the  right  view  of  it  and  made  his  report  in 
he  proper  shape.  Suppose  he  should,  when  he 
went  home,  be  asked  by  a  neighbor — if  the  in- 
strument was  sent  down  as  recommended  by  the 
gentleman  from  Oneida — "  well,  is  this  the  Con- 
stitution ?"  **  Yes."  «'  Is  this  all  of  it?"  "  No, 
one  part  of  it  is  in  another  book — in  the  Consti- 
tution of  1821."  "  How  will  I  find  it  ?"  "  You  must 
go  to  a  lawyer,  and  he  must  pick  out  this  and  that, 
and  tellyou  the  meaning  of  the  constitution."  That 
is  what  would  occur,  said  Mr.  S.,  and  he  was  not 
sure  but  that  he  would  have  to  go  further  back — 
to  the  Constitution  of  1777.  He  could  not  be- 
lieve that  his  friend  meant  really  to  make  such  a 
Constitution  as  this,  and  yet  such  in  his  (Mr.  S.'s) 
opinion  would  be  the  result,  if  the  course  the  gen- 
tleman recommended  Was  pursued.  Mr.  S.  went 
on  to  express  his  regret  that  the  gentleman  should 
have  taken  up  so  much  of  the  time  of  the  Con- 
vention, and  when  he  had  the  opportunity  to 
make  his  speech  in  the  committee  of  the  whole. 
The  gentleman  had  asked  this  Convention  at  one 
fell  blow  to  set  aside  the  result  of  the  labors  of 
one  of  its  committees — not  even  to  suffer  its  re- 
port to  go  into  committee  of  the  whole  a  second 
time,  where  it  might  be  amended.  And  he  re- 
gretted also  that  the  gentleman  had  made  use  of 
another  expression  yesterday,  when  called  to 
order.  He  said  that  he  was  surrounded  by  so 
many  wise  men,  that  he  thought  did  not  know 
more  than  he. 

Mr.  KIRKLAND  did  not  say  that.  He  said  he 
was  surrounded  by  so  many  men  who  he  found 
were  not  wiser  than  he  on  these  points  of  order. 
Mr.  STRONG  was  willing  to  take  the  explana- 
tion. But  it  did  not  make  it  any  bettter. — 
The  gentleman  then  goes  on  to  show  that  be- 
cause he  was  in  the  neighborhood  of  some  very 
wise  gentlemen  who  did  not  know  more  than  he, 
and  that  made  him  wise  with  them. 

Mr.  DANA  said  Uiat  wh?n  in«  other  day  the 
question  was  being  discusstd  as  to  I  lie  propri- 
ety of  the  committees  accompanying  their  re- 
port with  an  explanation  of  their  reasons,  it 
occurred  to  him,  that  notwithstanding  In-  was  not 
accustomed  to  addressdtliberalive  bodies,  he  might 
still  be  allowed  to  read  his  argument  it  he 
desired.  What  was  his  surprise  on  coming  int« 


166 


the  Convention  the  next,  day  to  find  his  friend 
from  Monroe  saying  that  it  was  unparliamentary 
even  to  do  that.  But  he  found  that  gentleman 
to-day  using  a  brief  tor  his  speech,  and  he  (Mr.  D.) 
would  avail  himself  of  that  privilege. 

Mr.  STRONG  replied  that  the  rule  had  a  little 
more  to  it.  The  rule  was  that  you  should  not 
read  a  written  speech  for  the  mere  purpose  of 
consuming  time. 

Mr.  DANA  stood  corrected.  The  gentleman 
from  Monroe  had  something  of  the  lawyer  in  him 
too — he  reads  just  enough  to  help  his  side. — 
Mr.  D.  went  on  to  say  that  having  written 
out  some  remarks  in  reply  to  the  gentleman 
from  Oneida,  and  not  having  committed  them 
to  memory,  he  would  read  them,  with  the  permis- 
sion of  the  House.  The  question  was,  whether 
we  should  go  again  into  committee  on  this  report? 
He  would  do  this  as  an  act  of  courtesy  to  the 
committee  from  whom  it  came — and  there  have 
it  fully  discussed,  whether  it  was  ,made  up  of 
parts  of  the  old  Constitution  or  was  new — that 
amendments  might  be  offered  to  it  He  had 
amendments  to  offer  himself  Among  others, 
one  to  abolish  the  office  of  Lieut.  Governor.— 
Several  other  members,  he  knew  desired  to  offer 
amendments.  The  position  of  the  gentleman  trom 
Oneida,  that  we  were  bound  by  the  act  calling  us 
togetner,  to  submit  naked  amendments  only  to 
the  people,  he  thought  an  unfortunate  one.  For 
it  happened  that  the  very  section  of  the  Conven- 
tion act  to  which  the  gentleman  relerred  ro  sus- 
tain it,  was  nearly  in  the  precise  language  of  the 
act  of '21,  so  far  as  it  prescribed  the  duty  of  the 
Convention  of  that  year],  And  yet  that  conven- 
tion did  not  submit  naked  amendments — but  an 
entire  constitution,  which  the  people  ratified  and 
thus  endorsed  their  action.  Nor  did  Mr.  D.  see 
any  greater  force  in  the  objection  that  some  of  the 
sections  of  this  article  were  proper  subjects  of 
legislation.  That  was  no  reason  why  we  should 
not  go  into  committee  on  it — nor  any  insuperable 
objection  to  making  such  constitutional  provis- 
ions. Again  if  this  article  contained  provisions 
in  conflict  with  the  constitution  of  the  United 
S'ates,  the  stronger  the  reason  why  we  should  go 
into  committee  on  it.  And  as  to  the  remaining 
argument  that  the  course  adopted  by  the  commit- 
tee, was  not  the  course  called  for  by  the  people, 
Mr.  D.  had  only  to  say  that  it  was  begging  the 
question — taking  for  granted  what  should  have 
been,  but  was  not  attempted  to  be  proved.  Mr. 
D.  concluded  by  urging  it  was  due  to  the  corn 
mittee  not  less  than  to  the  subject  to  go  into  com- 
mittee on  the  entire  report. 

The  question  was  then  taken,  and  leave  was 
granted  to  the  committee  to  sit  again. 

Mr.  TILDEN  moved  the  printing  of  the  report. 
After  some  conversation,  in  which  Mr.  RICH- 
MOND objected  to  the  printing  of  the  report — 
the  motion  prevailed. 

And  then  the  Convention  adjourned  to  11  o'- 
clock to-morrow  morning. 


FRIDAY,  (23d  day}  June  26. 
Prayer  by  the  Rev.  Mr.  FISHER. 

JUDICIAL  PRACTICE. 

Mf .  MANN  had  handed  to  him  a  memorial 
coming  from  a  very  respectable  source,  which  he 


felt  it  his  duty  to  present.  They  related  to  the 
practice  in  the  Court  of  Chancery,  and  to  judicial 
practice  generally.  The  paper  was  referred  to 
the  judiciary  committee. 

COMMON  SCHOOL  FUND. 

A  communication  was  received  from  the  Sec- 
retary of  State,  transmitting  a  report  in  relation 
to  the  distribution  of  the  Common  School  Fund  in 
answer  to  a  resolution  of  the  Convention. 

It  was  referred  to  committee  No.  12,  and  order- 
ed printed. 

Mr.  MORRIS  presented  a  resolution  requiring 
the  documents  to  be  printed  on  sized  paper,  so  as 
to  be  more  convenient  for  writing  amendments 
upon  it. 

Mr.  STRONG  proposed  a  substitute  so  as  to 
make  the  direction  conform  with  the  contract 
with  the  printer. 

Mr.  MORRIS  accepted  the  substitute,  and  it 
was  adopted. 

Mr.  HYDE  asked  that  the  report  of  the 
Equity  Clerks  of  the  4th  Circuit,  and  of  the  Su- 
perior Court  of  New-York  be  referred  to  the  ju- 
diciary committee  where  similar  reports  had 
gone.  This  was  agreed  to.  While  up,  Mr.  H. 
would  state  that  reports  had  been  received  from  all 
the  Surrogates  but  thirteen,  and  from  all  the 
Clerks  of  counties  except  13,  and  he  suggested 
whether  it  was  desirable  to  wait  for  the  remain- 
der. Those  received  would  probably  be  adequate 
for  the  purposes  of  the  Convention. 

Mr.  BAISCOM  was  of  that  opinion,  and  moved 

that  the  committee   be  instructed  to  report  to  the 

Convention  the  abstracts  of  these   reports,   that 

they  had  already  prepared.     This  was   agreed  to. 

THE  FUNDS  OF  THE  COURTS  OF  CHANCERY. 

Mr.  RHOADES  called  for  the  consideration  of 
his  resolution,  (laid  on  the  table  at  the  request  of 
Mr.  WORDEN  and  Mr.  LOOMIS)  in  relation  to  the 
mo/iies  under  the  charge  of  the  Court  of  Chance- 
ry— as  follows: 

Resolved,  That  the  Chancellor  of  this  State  be  request- 
ed  to  furnish  to  this  Convention  the  aggregate  amount  of 
all  the  funds  in  the  Courts  of  Chancery,  (and  subject  to 
the  order  and  control  thereof)  on  the  first  day  oi  June, 
1846,  as  follows: 

1.  The  aggregate  amount  of  all  funds  deposited  in 
banks. 

2.  The  aggregate  amount  deposited  in  all  trust  compa- 
nies. 

3.  The  aggregate  amount  vested  in  bond  and  mort- 
gage. 

4.  All  other  funds,  if  any,  under  the,  control  and  order 
of  said  Court. 

Some  conversation  here  occurred  with  a  view 
to  make  the  resolutions  more  accurate  and  com- 
prehensive; and  amendments  were  adopted  to 
that  tflfcct,  and  the  report,  on  the  motion  of  Mr. 
RUGGLES,  was  to  be  made  up  to  the  1st  of  Janua- 
ry last,  instead  of  the  1st  or  June. 

*  The  resolution  thus  amended,  was  then  adopt- 
ed. 

EXTRA  COMPENSATION-SUITS  AGAINST  THE 
STATE. 

Mr.  SWACKHAMER  offered  the  following  re- 
solution, which  was  adopted  : 

Resolved,  That  committee  No.  2  inquire  into  the  expe- 
diency of  reporting  an  amendment  to  the  Constitution 
prohibiting  the  legislature  from  granting  extra  compensa- 
tion to  any  officer,  agent,  servant  or  public  contractor,  af- 
ter such  public  service  shall  have  been  performed  or  con- 
tracted lor;  also,  prohibiting  the  payment  of  any  money 
out  of  the  Treasury  when  the  same  shall  not  have  been 


167 


provided  for  by  pre-existing  law;  and  also  to  provide  that 
every  person  having  claims  against  the  State  may  sue  for 
such  demand  in  like  manner  as  is  now  the  practice  be- 
tween individuals  in  similar  cases. 

GRANTING  THE  USE  OF  THE  CHAMBER. 

On  the  motion  of  Mr.  MORRIS,  the  use  of  the 
Convention  Chamber  was  granted  to  ROBERT 
OWEN  this  evening,  for  the  purpose  of  delivering 
an  Address. 

DISQUALIFICATION  FOR  HOLDING  OFFICE. 

Mr.  STOW  offered  the  following  resolution, 
which  was  adopted. 

Resolved,  That  no  person  holding  any  civil  office  under 
the  government  of  this  State,  shall  hold  any  civil  office 
under  the  government  of  the  United  States,  or  any  office 
from  any  foreign  State  or  Government,  and  the  acceptance 
of  any  such  office  from  the  United  States,  or  foreign  State 
or  Government,  shall  vacate  any  office  held  under  the  go- 
Ternment  of  this  State. 

On  motion  of  Mr.  MANN,  the  Convention  went 

into  committee  <>1  the  whole,  Mr.  CHATFIELD  in 

the  Chair,  on  the  unfinished   business,    being  I  he 

proposed  article  to  the  Constitution  in  relation  to 

THE  EXECUTIVE  DEPARTMENT. 

Mr.  DANA  moved  to  amend  the  first  section  of 
the  article,  by  striking  out  the  subdivision  in  rol 
tion  to  the  Lieutenant  Governor,  and  adding  other 
matter,  so  th.it  the  section  would  read  as  follows  : 
[amendment  in  italic.} 

"  ^  The  executive  power  shall  be  vested  in  a  governor, 
who  shall  hold  his  office  for  two  years,  but  he  shall  not 
during  the  period  for  which,  he  was  elected  be  eligible  to,  or 
hold  any  other  office  or  public  trust." 

Mr.  WORDEN  moved  to  amend  by  adding  af- 
ter the  words  "  public  trust"  the  words  •*  under 
the  government  of  this  State,"  so  as  not  to  dis 
franchise  him  from  holding  vffice  under  the  gov 
ernrnent  of  any  other  State. 

Mr,  TILDEN  wished  to  enquire  of  the  gentle- 
man who  proposed  this  amendment,  whether  he 
supposed  it  would  apply  to  offices  and  trusts  ex- 
qfficio. 

Mr.  DANA  certainly  intended  it. 
Mr.  TILDEN  confessed  he  could  not  see  any 
paiticular  reason  why  there  should  be  adopted  an 
exclusion  of  that  nature.  There  were  a  numbei 
of  little  public  trusts  which  it  was  very  conve 
nient  lor  the  governor  to  execute,  and  which  were 
conferred  upon  him — ex-officio.  For  instance,  he 
was  a  Regent  of  the  University,  and  as  such  one 
of  the  trustees  of  the  State  library.  Now  was 
there  any  objection  to  this?  He  was  also  a  trus- 
tee of  the  State  Capitol,  and  of  the  public  build- 
ings. He  (Mr.  T.)  could  not  fur  his  own  part 
see  that  there  was  any  impropriety  in  his  execu- 
ting those  duties,  on  the  contrary  being  always 
ht  re  and  connected  with  these  public  buildings, 
id  the  performance  ot  his  executive  functions,  it 
was  entirely  fit  and  proper  that  to  him  should  be 
r)mmitied  the  execution  of  these  and  sirnil.tr 
trusts.  It  was  suggested  that  the  Governor  was  a 
trustee  of  Union  College  under  its  charter — and 
also  of  the  Sailor's  Snug  H-irbor. 

Mr.  MORRIS  thought  not  of  the  Sailors'  Snug 
Harbor. 

Mr.  TILDEN  said  that  at  any  rate  there  were  a 
variety  of  little  functions  conferred  upon  him 
which  were  perfectly  consistent  with  his  other 
du;ies.  It  there  could  be  any  object  of  utility  ac 
cornplished  by  excluding  him  from  the  perform- 
ance, he  would  be  glad  to  hear  it. 


Mr.  DANA  said  that  this  exclusion  was  in  the 
original  report  of  the  committee,  and  he  iully  con- 
curred in  it.  He  believed  that  the  Governor  should 
be  divested  of  all  other  care  and  employment  ex- 
cept those  exclusively  relative  to  his  duties  c.s 
Governor. 

Mr.  RHOADES  thought  there  was  a  great  deal 
of  force  in  the  remarks  of  the  gentleman  from 
New  York,  (Mr.  TILDEN.)  He  thought  thai  the 
Governor  should  be  permitted  to  hold,  ex-officio, 
the  same  offir.es  as  he  now  does.  It  was  very  con- 
venient for  the  Legislature  to  clothe  the  Governor 
with  a  variety  ot  little  [towers  such  as  the  location 
of  th<>  Clinton  County  Prison;  and  the  people 
would  have  more  confidence  in  such  an  appoint, 
inent.  If  the  Governor  was  to  be  divested  of  the 
greater  part  of  his  vast  patronage — as  would  pro- 
bably be  the  case — even  in  this  state,  he  would 
have  very  little  to  do  There  was  another  propo- 
sition to  divest  him  still  further  of  his  present  du- 
tii.-s — that  was.  to  take  away  the  pardoning  power. 

Mr.  SWACKHAMER  lully  approved  of  the 
views  of  his  friend  (Mr.  DANA.)  We  were  told 
that  the  Governor's  duties  were  to  be  comparative 
ly  small  under  the  radical  changes  that  are  propos- 
ed, and  fears  even  were  entertained  thut  he  might 
not  have  enough  to  do.  Mr.  S.  was  in  favor  of 
divesting  the  Governor  of  all  patronage  and  power 
except  such  as  was  merely  executive  in  us  legiti- 
mate sense.  Allusion  had  been  made  to  the  fact 
of  his  being  ex-officio  trustee  of  Union  College. 
This  fact  he  considered  a  most  unanswerable  ar- 
gument against  his  holding,  and  exercising  these 
trusts.  That  very  position  might  prejudice  him 
in  favor  of  the  institution,  and  deprive  the  State 
of  a  vast  amount  of  money,  through  the  induce, 
rnent  to  recommend  such  a  course  of  legislation 
from  his  sympathy  with  the  institution.  If  he  is 
to  be  divested  ot  all  executive  patronage,  properly 
speaking,  let  us  go  further — divest  {he  legislature 
of  conferring  any  office  upon  him  whatever.  And 
if  there  was  a  prison  to  be  built,  he  apprehended 
there  were  men  in  the  State  fully  competent  to 
locate  it  as  the  Executive.  He  hoped  no  fear 
that  the  Executive  would  not  have  a  sufficient 
amount  ot  duties  to  perform,  would  induce  the  re- 
jection of  this  amendment. 

Mr.  WORDEN  here  withdrew  his  amendment. 

Mr.  LOOMIS  was  a  reformer  but  he  was  not 
disposed  to  reform  where  no  wrong  existed  in 
things  as  they  are.  It  seemed  to  be  necessary  that 
there  should  be  an  officer  to  preside,  over  the 
Senate,  and  in  case  ot  circumstances  that  might 
happen  to  the  Governor,  rendering  him  incapable 
of  discharging  his  duties,  when  it  was  desirable 
to  have  a  person  to  fill  the  station  elected  by  the 
whole  people  instead  of  one  selected  by  the  mem- 
bers of  the  Senate.  He  had  never  heard  any 
complaint  against  the  Executive  holding  these 
Ex-officio  offices — but  of  the  extent  of  his  ap- 
pointing powers,  there  had  been  a  great  deal  of 
complaint.  But  he  was  not  prepared  to  say  that 
he  would  deprive  him  entirely  here  of  that*  He 
looked  upon  the  Executive  of  (he  State  as  one  of 
the  great  branches  of  the  government  and  as  em- 
bodying more  immediately  than  any  other  branch 
of  it,  the  sovereign  will  and  authority  of  the  peo- 
ple. He  was  not  less  the  representative  of  the 
people  than  the  Legislature.  He  of  the  whole, 
and  the  Legislature  of  the  different  parts,  and 


168 


hence  the  activity  and  harmony  of  (he  system. — 
He  was  in  favor  of  correcting  such  errors  in  it 
as  experience  and  practice  demonstrated  lo  exist, 
such  as  the  gieat  concentration  of  the  appointing 
powei — the  centralization  of  fhe  system  which  ex 
ictid  thereirom  — ihe  appointment  of  local  cffi 
cers  by  ihe  whole  goveintnent.  The  localities 
in  hi.-*  judgment  were  competent  to  dischaige  ihe 
duty  ot  the  Appointment  ot  all  local  officers,  He 
was  nut  prepared  to  say  at  this  stage  of  ihe  debute, 
he  would  not  have  wilh  the  Executive  the  ap- 
pointment of  certain  siate  officers.  He  could 
vei>  well  see  that  if  we  were  to  elect  all  the  ofh 
cers  v\  ho.«e  personation  was  geneial  by  general 
ticket,  and  the  judiciary  by  the  people  also,  we 
should  have  such  a  muliiplicity  ot  officers  as  may 
lead  to  difficulty.  But  he  was  departing  from  the 
q.e-siion.  He  should  vote  against  the  amend- 
ment. 

Mr.  DANA  said  that  the  only  reasons  which 
had  been  given  why  the  office  of  Lieutenant  Gov. 
should  be  letained  was  the  need  of  a  presiding  ol- 
ncer  over  the  Senate,  and  in  case  of  the  death  or 
inability  of  the  Governor,  that  thtre  would  be 
needed  some  one  to  fill  his  place.  Such  an  ob 
ject  he  apprehended  n>uld  be  attained  without  en- 
plo\mg  a  person  at  $6  per  day  or  a  contingency. 
He  believed  the  Senate  fully  competent  to  elect 
theii  uwn  presiding  officer,  and  in  case  of  the  ina- 
bility of  Ihe  Govei n<>r  to  perform  his  duties,  he 
supposed  that  in  this  Slate  as  weli  as  in  most 
of  the  otheis  of  Ihe  Union,  'hat  presiding  of- 
ficer might  pei form  the  duties  of  the  Executive. 
In  a  Urge  majority  of  the  State*  no  such  officer  as 
Lieutenant  G  >v.  was  known.  Now  he  v\as  so 
radical  that  he  would  dispense  with  every  office 
ju  our  government  that  lie  believed  to  be  not  ac- 
tually necessary  for  the  wants  of  the  people.  He 
thou.hi.  the  Senate  could  select  its  own  presiding 
officer  from  it-;  members, and  that  without  depriv- 
ing him  i-f  his  right  to  vote.  In  the  case  of  a  tie 
— it  could  be  settled  as  in  the  Assembly,  when 
the  motion  would  be  declared  lost.  He  thought 
the  fact  of  the  G  ivernor  holding  the  offices  which 
h.id  bt-en  alluded  lu—ex-cfficio,  might  have  an 
improper  influence  upon  him,  and  induce  him  to 
depart  from  the  performance  of  his  duties  strictly 
belonging  !o  him  as  the  executive  of  the  State. 

Mr.  BROWN  desired  to  vote  on  Ihe  question  of 
striking  out  the  office  of  Lieutenant  Governor.  He 
deernrd  it  entiiely  unnecessary,  and  that  it  was 
better  to  dispense  wi»h  it.  He  regarded  the  ex- 
pense as  of  very  little  importance — if  such  an  ol- 
ficer  was  needed  he  w,is  willing  to  pay  for  it  — 
But  we  had  the  example  of  a  number  of  Siates  it 
we  should  dispense  with  these  offices.  Among 
them  were  Ohio,  New  Hampshire,  Maine,  Virgin- 
la,  New  Jersey,  and  several  others.  Were  he  to 
model  our  constitution  fiom  those  of  other  States 
he  would  choose  New  Jersey.  He  should  there- 
fore vote  to  dispense  with  the  office. 

Air.  RICHMOND  hoped  the  motion  to  strike 
out  the  office  of  Lieutenant  Governor  would  not 
prevail.  It  had  been  said  that  many  of  the  Slates 
had  no  Lieut.  Governor.  This  was  so,  and  per- 
haps we  could  get  along  without  such  an  officer. 
But  gentlemen  ruust  bear  in  mind  that  this  is  a 
very  large  State — the  Empire  State — and  he 
thought  we  should  have  a  Lieut.  Governor  as  well 
as  a  Governor.  The  saving  of  salary  was  but  a 


small  consideration.  As  to  depriving  the  Gover- 
nor of  all  other  offices  and  trusts,  Mr.  R.  said  at 
first  his  impression  was  that  the  proposition  was 
not  right;  but  on  reflection  he  was  willing  to  go 
for  it  in  part  Trustees  ot  institutions  often  con- 
ferred that  office  on  the  Governor.  This  might 
look  very  well,  but  there  was  an  after  considrra- 
'ion  not  so  agreeable.  These  very  institutions 
came  to  the  Legislature  for  grants  of  the  public 
money,  and  he  believed  this  power  had  been  aou- 
sed  in  at  least  some  instances.  He  would  cite  an 
instance.  A  few  years  since,  a  Univer.-ity  was 
established  to  help  forward  the  interests  of  educa. 
tion  in  its  highest  departments.  This  University 
received  largesumsot  money  to  start  with.  When 
the  trustees  came  to  erect  their  building,  which 
they  determined  should  be  on  an  extensive  scale, 
they  made  a  contract  with  the  Agent  of  the  State 
Prison  for  marble  to  the  amount  of  $10,000,  lor 
which  the  individual  bonds  ot  certain  icsponsible 
persons  weie  given-  A  splendid  edifice  was  erec. 
ted.  The  time  to  pay  this  $10,000  came  round 
and  these  individuals  came  to  the  Legisla'ure  to 
be  relieved  from  their  bonds.  A  law  was  passed 
for  that  purpose,  and  yet  these  individuals  were 
abundanily  responsible.  Here  was  nn  illustra- 
tion. He  only  memioned  thiscircumstance  to  show- 
that  when  the  Governor  was  connected  with  such 
matters,  he  might  beswaved  in  his  opinion  by  his 
connection  with  them.  In  regard  to  the  trustee- 
ship of  the  State  buildings,  he  agreed  with  the 
gentleman  from  New- York.  The  people  would 
have  more  confidence  in  the  Governor  in  holding 
such  an  office,  because  he  was  an  officer  of  their 
own  choosing. 

Mr.  MARVIN  should  not  trouble  the  Conven- 
tion with  any  extended  remarks.  He  had  sup- 
posed one  great  object  in  electing  a  Lieut.  Gover- 
nor with  a  Governor,  was  that  we  might  have  a 
man  in  the  State  take  upon  himself  the  office  of 
Governor  in  case  of  a  vacancy,  and  that  this  per- 
son should  be  elected  by  the  people  of  the  whole 
State.  He  had  always  supposed  that  this  was  De- 
mocratic— although  Pennsylvania  and  other  States 
did  not  follow  our  example.  When  the  Governor 
dies  everybody  knows  who  will  take  his  place. 
There  is  no  confusion,  no  commotion,  no  revolu- 
tion. All  was  as  in  the  case  of  the  Vice  Presi- 
dent recently.  The  people  had  provided  for  all 
this  beforehand.  But  suppose  the  Speaker  of  the 
Senate  is  to  discharge  these  duties.  How  is  he 
elected  ?  Not  from  the  whole  State  but  from  a 
single  district  as  Senator  merely.  But  a  small 
portion  of  the  people  have  any  voice  in  the  elec- 
tion of  this  man,  who  in  a  contingency  is  to  pre- 
side over  the  people  of  the  whole  State.  Was 
this  Democratic  ?  Mr.  M.  thought  not.  To  al- 
low the  Senate  to  choose  this  man,  is  at  least  one 
remote  from  the  people.  But  he  did  not  intend 
to  speak  thus  far  -  but  only  to  urge  his  objections 
to  this  proposition  to  amend.  He  suggested  to 
his  friend  from  Madison  whether  upon  reflection 
he  was  not  satisfied  his  amendment  was  anti- 
Democratic  ? 

In  answer  to  a  question  by  Mr.  BURR, 

The  CHAIR  decided  that  the  question  could 
not  be  divided  so  as  to  take  the  question  first  upon 
striking  out. 

The  amendment  proposed  by  Mr.  DANA  was 
rejected — no  member  voting  in  the  affirmative. 


169 


Mr.  HUNT  moved  to  strike  out  two  years  and 
t  "  three  years." 

Mr.  HUNT  rose  to  propose  an  amendment  ex- 
tending the  term  of  office  to  three  years,  but 
withdrew  his  proposition  at  the  request  of 

Mr.  SIMMONS,  who  desired  to  offer  an  amend 
ment  so  that  the  section  should  read  as  follows  : 
[The  new  matter  in  italics.] 

§  The  Executive  power  shall  he  vested  in  a  Governor, 
end  such  subordinate  officers  as  are  created  by  this  Constitu- 
tion, or  may  be  at  any  time  constituted  by  law  for  that  pur- 
pose- r 

Mr.  S.  apprehended  this  might  be  thought  a 
mere  question  of  literature,  but  it  would  be  found 
something  more.  It  was  an  oversight  in  the  old 
Constitution.  It  was  not  true  that  the  Executive 
power  was  vested  in  the  Governor  when  thers 
were  other  Executive  officers.  The  supreme  Ex- 
ecutive power  was  in  the  Governor,  but  not  all 
the  subordinate  powers.  It  would  not  be  proper 
to  say  that  the  judicial  power  was  in  the  highest 
court",  when  there  were  other  courts.  The  Exec- 
utive authority  was  vested  supremely  in  the  Go- 
vernor and  such  subordinate  officers  as  it  might  be 
devolved  upon  by  the  Legislature.  But  this  was 
something  more  than  form.  This  question  was 
once  raised  in  Congress,  and  excited  more  discus- 
sion than  any  other  that  had  arisen  for  years. — 
The  question  was  never  settled  until  passed  upon 
by  the  Supreme  Court,  in  the  case  of  Kendall. — 
Mr.  S.  referred  to  the  particulars  of  that  case.— 
The  Court  unanimously  decided  that  in  thedistri- 
bution  of  power  to  subordinate  officers  they  must 
be  taken  subject  to  law,  and  that  therefore  the 
positions  of  JVlr.  Kendall's  counsel  were  not  well 
taken.  He  had  drawn  up  his  amendment  as  in- 
dicative of  his  views.  If  it  did  not  reach  the  ob- 
ject sought,  lie  would  assent  to  any  modification. 
Mr.  SHEPARD  agreed  with  the  gentleman 
from  Essex  in  relation  to  the  accuracy  of  the  terms 
employed  in  the  article.  But  he  would  suggest  a 
shorter  way  of  avoiding  that  inaccuracy,  by  sub- 
stituting the  form  used  in  various  other  State  Con~ 
stitulions,  by  inserting  the  word  "  supreme"  before 
"  executive,"  or  the  word  ««  chief,"  as  in  the  Con- 
stitution  of  Virginia.  He  moved  the  insertion  of 
the  latter  word,  but  withdrew  it  for  the  present, 
on  being  informed  that  he  was  not  in  order. 

Mr.  SIMMONS  was  not  particular  about  the 
form  of  the  amendment.  A  friend  had  handed 
him  a  mode  of  expressing  his  idea,  which  seemed 
to  be  better  than  his  own.  He  was  not  very  tena- 
cious about  the  form;  but  still  he  thought  the 
word  «« Supreme"  would  lead  to  difficulty.  It 
would  not  do  very  well  to  say  that  the  supreme 
executive  power  was  vested  in  a  Governor,  because 
the  Governor  might  then  say — "  We,  the  Su 
preme,"  in  his  Message,  &c  ;  or  in  a  question  aris- 
ing  between  him  and  his  subordinates  ;  still  it  was 
bettei  than  the  word  "  Chief,"  after  all ;  we  give 
thai  Mtle  to  towns  ;  we  may  say  that  the  supreme 
executive  power  shall  be  vested  in  the  legisfature, 
and  yet  other  bodies  have  legislative  powers,  ll 
would  be  best  after  all  to  say  the  executive  power 
is  vested  in  a  Governor,  (who  would  be  supreme 
of  course)  and  in  such  subordinates  as  we  make 
as  he  had  in  his  amendment,  which  after  al 
he  thought  was  the  best. 

Mr.  MORRIS  said  the  phrase  in  the  section  as 
he  reported  it,  was  infinitely  better  and  less  like 

11 


y  to  be  misunderstood  than  the  amendment  of 
his  learned  gentleman,  (Mr.  SIMMONS.)  Such  a 
brm  of  expression  as  that  proposed,  would  make 
ill  these  subordinates  equal  to  the  Governor ;  for 
every  thing  in  it  applicable  to  the  one  was  equal- 
y  applicable  to  the  other.  Certainly  that  was  not 
he  intention.  Least  of  all  could  the  gentleman 
ntend  that  the  legislature  that  we  had  corhe  here 
o  place  within  reasonahle  and  proper  bounds, 
should  by  this  constitution  be  authorized  to  make 
a  supreme  executive  power  in  the  State,  as  often 
and  as  many  as  they  chose.  Mr.  M  supposed  the 
gentleman's  intention  was  precisely  what  this 
clause,  in  Mr.M's  judgment,  expressed— that  the 
executive  power  should  be  vested  in  a  Governor. 
What  executive  power  ?  The  executive  power  of 
the  State.  What  was  that?.  The  supervisory 
power  over  subordinate  executive  officers  in  the 
counties— such  as  your  sheriffs.  One  of  these 
sections  provided  that  he  should  take  care  that 
the  laws  be  faithfully  executed.  That  came  with- 
n  the  executive  power,  and  was  co-extensive  with 
the  state.  He  was  to  see  (hat  the  laws  were  faith- 
fully executed.  By  whom?  By  subordinates, 
who  had  local  and  special  executive  powers.  If 
we  Should  say  the  supreme 'executive  power  of 
the  State,  the  question  might  arise  whether  there 
was  not  a  shade  ot  difference  intended  between 
the  supreme  power  and  other  power  co-extensive 
with  the  State.  It  might  be  regarded  as  convey- 
ing less  power  than  we  intended,  or  than  was 
now  given  to  him.  His  impression  was  that  the 
clause  of  the  old  constitution,  being  shorter  and 
more  comprehensive,  carried  out  fully  the  inten- 
tion  of  the  people  in  regard  to  the  Governor. 

Mr.  SHEPARD  differed  with  his  colleague 
(Mr.  MORRIS);  he  did  suppose  that  the  phraseol- 
ogy of  the  article  reported  by  the  committee  and 
which  was  also  contained  in  the  existing  Consti- 
tution was  inaccurate.  There  are  other  Execu- 
tive officers  in  the  State  besides  the  Governor  and 
if  his  colleague  did  not  see  them,  he  did.  The 
only  other  Constitution  in  the  United  States  that 
contained  this  phraseology  was  that  of  New  Jer- 
sey. 

A  MEMBER  :    It  is  in  that  of  the  United  States 

Mr.  SHEPARD  :  It  is  in  that  of  the  United 
States  ;  but  the  expression  is  an  inaccurate  one 
for  all  that.  There  was  no  practical  inaccuracy, 
but  there  is  a  clear  and  decided  verbal  inaccura- 
cy in  it.  This  had  been  avoided  in  other  States 
by  saying  the  supreme  executive  power,  or  the 
chief  executive  power  or  the  chief  executive  au- 
thority, or  by  saying  that  the  governor  shall  be 
the  chief  executive  officer,  and  then  define  his 
powers  by  this,  and  the  legislature  define  those 
of  the  subordinates.  Nearly  all  else  in  the  Union 
had  avoided  the  difficulty  ;  and  it  was  very  de- 
sirable to  do  so  here.  He  preferred  so  to  vary 
the  proposition  as  to  state  "  the  supreme  or  chief 
executive  officer  of  the  State  shall  be  the  gover- 
nor." That  takes  away  the  odium  of  the  word 
'*  supreme,"  and  leaves  a  clear  and  definite  mean- 
ing to  the  whole  matter. 

Mr.  SIMMONS  said  that  it  was  true  no  prac- 
tical difficulty  had  ever  arisen  from  the  use  of  • 
this  term  ;  but  the  governor  under  it  might  say 
«'  by  virtue  of  the  inherent  executive  power,"  &c. 
Now  he  wanted  to  avoid  by  any  possible  implica- 
tion, that  by  virtue  of  this  executive  power  being 


170 


vested  in  the  governor  all  subordinates  were  to 
act  as  he  directed  and  not  by  law.  He  did  not 
care  much  between  his  own  and  the  other  propo- 
sitions ;  it  might  not  perhaps  be  worth  while  to 
alter  it  at  all ;  but  it  was  wrong — false  on  the  face 
of  it ;  or  else  it  established  a  monarchy.  Now  if 
ALL  executive  power  was  to  be  vested  in  a  go- 
vernor— as  soon  as  he  found  this  to  be  the  case, 
he  would  quit  the  State  and  go  somewhere  else. 

Mr.  DANA  asked  him  if  the  law  should  create 
officers  having  executive  powers,  whether  they 
could  not  exercise  those  powers,  notwithstanding 
what  was  alleged  to  be  vested  in  the  Governor, 
with  whom  he  could  not  interfere  ? 

Mr.  SIMMONS  said,  that  may  be  so,  but  that 
was  the  question  ;  as  it  now  stands  he  has  all  pow- 
er, and  all  others  are  the  mere  hands  and  fingers — 
of  the  Governor.  Every  sheriff,  constable,  &c. — 
in  short,  every  executive  subordinate  is  the  mere 
**  organ"  (as  they  say  in  Washington)  of  the  Pre- 
sident— the  Governor.  How  are  they  to  be  ame- 
nable only  to  him,  or  to  the  law  ?  He  wanted  to 
get  a  set  of  subordinates  who  shall  not  shield 
themselves  behind  the  executive  power.  The 
new  Constitution  of  Iowa  gave  the  Governor  the 
supreme  executive  power.  And  if  that  be  suffi 
cient  to  indicate  his  proper  functions  and  to  give 
him  a  supervisory  executive  power  over  his  sub 
ordinates,  making  them  the  organs  and  executors 
of  the  law,  and  amenable  to  it,  and  not  merely 
hands  and  fingers  of  the  Governor,  then  that  was 
all  he  wanted  to  see  accomplished. 

Mr.  STOW  said  he  should  not  have  taken  part 
in  this  debate,  did  he  not  suppose  there  was  a 
principle  involved  here  beyond  that  immediately 
involved  in  the  amendment.  The  propsition  was 
to  alter  the  phraseology  of  the  section  without 
changing  its  substance.  Now  all  professional 
men  were  aware  of  the  important  consequences, 
that  sometimes  resulted  from  the  change  of  a 
single  word,  even  in  the  statute  law.  These  con- 
sequences the  wisest  men  could  not  foresee.  If 
we  were  to  commence  in  the  first  section  of  the 
new  Constitution,  to  alter  well  defined  and  well 
settled  language,  there  would  be  no  end  to  the 
alterations  we  should  make,  and  no  end  to  the 
difficulties  that  must  grow  out  of  ir.  His  objec- 
tion was  that  here  was  a  phrase  the  meaning  and 
intent  of  which  was  well  known — and  which  foi 
half  a  century  had  received  a  practical,  undisput- 
ed construction.  All  knew  the  meaning  of  it. — 
And  if  so,  why  adopt  language  that  all  might  not 
know  the  meaning  of?  Gentlemen  seemed  to 
think  they  could  express  the  same  thing  more 
definitely.  But  could  they  agree  among  them- 
selves as  to  what  the  new  phraseology  would 
mean  ?  And  if  we,  who  were  to  adopt  it,  could 
not  agree  as  to  its  meaning,  how  were  those  who 
were  to  come  after  us,  the  judiciary,  the  Execu- 
tive,  the  legislature— the  people,  to  understand 
it?  He  repeated  that  it  was  dangerous  to  change 
written  and  well  settled  law.  The  alteration  of  a 
single  word  in  the  English  law  in  relation  to 
frauds,  cost  the  people  of  England  more  than  fifty 
thousand  pounds  sterling— -and  yet  it  was  extreme- 
ly doubtful  whether  the  intention  of  the  legisla- 
ture was  to  change  the  law  in  substance  at  ail- 
Hence  it  was  that  in  our  own  state,  when  the  laws 
were  revised,  the  principle  was  adopted  not  to 
change  the  phraselogy  of  the  law  that  had  receiv- 


ed a  practical  construction  for  a  series  of  \ears 
and  that  construction  alkone  way.  Did  any  one 
ever  hear  a  doubt  expressed  as  to  the  meaning  of 
this  section  ?  He  had  heard  none.  Why  raise  a 
doubt  about  it  ?  Why  especially  attempt  to  substi- 
tute words  the  meaning  of  which  we  could  not 
agree  upon  ?  As  to  this  phrase,  supreme  execu- 
tive power,  he  denied  that  that  was  American 
doctrine.  He  insisted  that  there  was  no  supieme 
executive  power  in  our  government — overruling 
and  controlling,  as  the  phrase  implied,  the  judi- 
cial, legislative  and  all  other  powers  in  the  State, 
It  would  be  asserting  a  principle  at  war  with  the 
history  and  genius  of  our  government.  Heap- 
pealed  to  members  to  consider  well  before  they 
set  the  precedent  of  changing  the  fixed  and  well 
settled  law  of  the  land. 

The  question  was  then  take.i  on  Mr.  SIMMON'S 
amendment  and  it  was  rejected. 

Mr.  SHEPARD  then  moved  to  amend  by  saying, 
the  "  CAte/Executive  power." 

This  was  put  and  lost. 

Mr.  DANA  then  moved  to  alter  it  so  as  to  change 
the  word  "be" in  the  second  line  to  "who,"  thus: 
"who  shall  hold  his  office  ;"  and  to  strike  out  the 
word  "  and"  in  the  same  line  and  put  a  capital  a, 
thus  :  "  for  two  years.  A  Lieut.  Governor  shall  be 
chosen,  &c." 

This  was  put  and  lost. 

Mr.  HUNT  then  said  that  his  amendment  was 
next  in  order,  to  strike  out  two  and  insert  three  j 
and  he  would  read  a  few  reasons  for  so  doing. — 
He  went  on  to  say  that  by  extending  the  Governor's 
term  of  office  to  three  years,  as  was  the  case  un- 
der our  old  Constitution,  our  election  for  Governor 
and  that  for  Piesident  would  very  seldom  occur  at 
the  same  time ;  consequently,  our  State  Executive 
would  be  chosen  with  more  express  reference  to 
state  interests  than  is  now  the  case.  By  making 
our  elections  less  frequent,  the  people  would  have 
more  time  for  other  matters  than  the  election  of 
officers,  and  our  officers  would  hare  more  time  for 
their  legitimate  duties.  The  conduct  and  policy  of 
our  government  would  be  less  uncertain  and  unsta. 
ble.  By  extending  the  term  of  offices  generally, 
we  should  have  more  competent  officers,  and  fewer 
bungling  apprentices  in  office.  Experience,  (said 
Mr.  H.)  is  requisite  for  the  right  and  prompt  per- 
formance of  the  duties  of  every  office.  He  who 
has  it  not,  must  be  to  some  extent  a  deputy  to 
his  own  clerks,  who  often  have  ends  of  their  own 
to  accomplish,  and  are  never  responsible  to  the 
people.  It  may  be  said  that  by  extending  the 
Governor's  term  of  office,  we  increased  his  power  for 
evil  as  well  as  for  good.  Admitted.  He  could  do 
more  of  voluetary  good  or  harm  during  this  third 
year,  than  he  could  during  the  first  two  years  of 
his  term,  because  he  then  knows  precisely  what 
springs  to  touch,  what  wires  to  pull,  in  order  to 
effect  his  object.  But  to  compensate  for  this  we 
should  have  fewer  official  blunders,  which  are  to 
be  guarded  against  as  well  as  crimes.  Besides,  it 
does  not  follow  that  because  an  experienced  en- 
gineer can  blow  up  his  engine  more  effectually 
than  a  mere  learner,  that  he  would  therefore  be 
more  likely  to  do  so.  Some  will  say  that  by  pre- 
scribing short  terms  of  office,  the  people  can  get 
rid  of  an  unfaithful  or  incompetent  officer  with  less 
delay  than  they  could  if  the  term  were  lengthened. 
True,  but  the  people  have  no  right  to  elect  anun- 


171 


fit  man  for  their  Governor;  and  whenever  they 
may  do  so,  I  would  sentence  them  to  live  under 
his  administration  tor  the  full  term  of  three  years, 
without  a  hope  of  reprieve  or  pardon.  The  pun. 
ishment  would  not  be  a  whit  too  great  for  the  of. 
fence,  and  the  people  need  not  subject  themselves 
to  it  unless  they  choose.  Hundreds  of  my  con- 
stituents have  complained  to  me  of  the  frequency 
of  our  elections  j  none,  that  our  elections  are  too 
few.  If  we  choose  our  Governor  for  three  years 
and  our  legislature  for  two,  we  shall  reduce  the 
present  election  tax  upon  our  time  and  faculties 
nearly  one  half,  and  the  public  will  be  much  bet- 
ter served. 

The  amendment  was  lost. 

Mr.  DODD  proposed  to  strike  out  the  1st  section 
and  insert, 

"  The  Executive  power  shall  be  vested  in  a  Governor, 
who  shall  hold  his  office  for  two  years.  A  Lieut.  Govern 
or  shall  be  chosen  at  the  same  time  and  for  the  same  term." 

This  would  improve  the  section  in  its  wording, 
and  leave  out  all  that  was  superfluous.  Itwasver)  ' 
desirable  that  all  unnecessary  words  should  be 


with  the  gemleman  from  New  York  that  this  was 
an  after  consideration,  coming  up  more  appropri- 
ately when  we  had  determined  on  some  other 
matters.  But  he  did  not  see  how  it  could  well  be 
laid  over.  We  must  take  a  vote  on  it.  At  pre- 
sent he  thought  he  should  vote  against  it.  He 
concurred  however  in  the  propriety  of  separating 
these  elections.  If  we  did  not  so  arrange  it,  he 


should  be   for  returning  to  this, 


arrange 
and  giving  it  a 


omitted,  so  as  to  render  the 
and  easy  to  be  understood. 


constitution  simple 


Mr.  W.  TAYLOR  saw  no  reason  why  we  should 
come  here  to  amend  the  Constitution,  if  it  was 
for  the  mere  purpose  of  altering  phraseology. 

Mr.  DODO'S  amendment  was  lost. 

Mi    STOW  moved  this  : 

"  But  the  Governor  and  Lieutenant  Governor  who  shall 
be  chosen  at  the  next  election,  shall  hold  their  respective 
offices  only  for  one  year." 

Mr.  S.  said  the  effect  of  his  amendment  would 
be  to  change  the  time  of  holding  our  elections — 
and  his  object  was  to  separate  our  State  elections 
from  the  presidential  contest.  He  thought  we 
should  not  blend  our  State  elections  and  policy 
with  that  of  the  general  government.  But  he 
would  not  argue  the  question.  He  submitted  it 
to  the  good  sens-?  of  the  Convention  whether  we 
had  not  better  submit  for  once  to  a  little  inconve- 
nience, than  to  have  our  State  elections  forever 
hereafter  blended  up  with  national  politics. 

Mr.  BURR  said  that  it  would  depend  upon  the 
time  fixed  to  elect  a  governor  under  the  new  Con- 
stitution, before  we  could  say  if  this  was  a  proper 
amendment  to  be  adopted. 

Mr.  STOW  said  a  governor  must  be  elected 
this  fall ;  and  for  two  years,  unless  they  inserted 
this  clause. 

Mr.  DANA  asked  if  he  meant  it  to  take  effect 
this  fall  ? 

Mr.  STOW  said  he  did,  so  that  the  election  for 
governor  of  New- York,  and  President  of  the  Uni- 
ted States,  should  not  happen  the  same  year. 

Mr.  TILDEN  said  that  it  was  quite  uncertain, 


at  present, 


eriod  the  amend- 


ed Constitution  will  go  into  effect.  And  it  was 
premature  to  assume  at  this  time  at  what  period 
the  election  for  a  governor  under  it  would  first 
take  place.  The  amendment  had  better  ^  e  de- 
ferred. 

Mr.  STOW  repeated  that  we  must  elect  a  Gov- 
ernor next  fall.  And  so  he  wanted  a  vote  on  it 
now. 

Mr.  WORDEN  was  glad  the  proposition  had 

been  brought  forward,  and  he  should  be  unwilling 

to  see  any  vote  taken  now  which  would  be  regard- 

!   decisive  against   it.     He  agreed  somewhat 


fair  and  full   consideration.    It  voted  down,  the 
gentleman  could  renew  it  in  the  House. 

Mr.  STOW  said  that  under  those  circumstances 
he  preferred  much  to  withdraw  it. 

Mr.  WARD  said  if  he  did  so  he  could  not  re- 
nev  it  in  the  House. 

Mr.  STOW  said  that  then  he  would  not  with- 
draw  it. 

Mr.  SIMMONS  thought  they  ought  to  discuss 
the  proposition  a  little.     It  must  be  very  evident 
to  all  persons  of  their  age  that  the  State  and  the 
national  policy  was  infected  with  a  powerful  dis. ' 
ease  peculiar  to  liberty;  and  this   was   instability 
and  change.     The  very  best  forms  of  governments 
have  their  peculiar   drawbacks — inconveniences; 
he  who  consented  to  live  even  under  a  monarchy, 
was  excepted  from  several  inconveniences  that  we 
are  obliged  to  submit  to,  in  order  to  obtain  a  great- 
er amount  of  good.     But  how  are  these  changesof 
policy,  these  instabilities  of  the  State  and  nation, 
occasioned  ?     It  is  because  the   great   volume   of 
public  sentiment  is  concentrated  on  the  great  ex- 
ecutive officers  of  the   ration.    Who  cares  about 
the  election  of  a  member  of  Congress   now?  but 
they  do  care  who  is  to  be  chosen  President;  and 
when  this  is  to  be,  parties  rally  in  mass,  and  or- 
ganize and  put  forth   all   their  energies   for  the 
struggle.     And  why  is  this?     Because  all  feel  it 
to  be  true — to  be  daily  developing  itself  in   prac- 
tice—that whoever  is  President,  has  the  Congress 
of  the  United  States.     Who  cares  for  elections  of 
Assemblymen,  in  comparison  with  that  of  Gover- 
nor ?     None — and  the  progress  of  our  institutions 
is  such  as  to  render  the  Legislature  subservient  to 
the  Executive  power — the  Legislature  to  the  Go- 
vernor, the  Congress   to  the  President;  and  thus, 
instead  of  having  the   great  mass   of  the   intelli- 
gence of  the  people  shape   the   course  of  legisla- 
tion, or  to  have  it  embodied  in   their  representa- 
tives, so  as  to  shape  the  policy  of  the  State,  it  was 
always  felt  to  be  a  truth  that  it  was  concentrated 
in  the  Governor  for  the  time  being  after  all— be 
he  whom  he  might.     And  so  it  is  in  regard  toihe 
election  of  a  President  of  the  United  States  j  and 
the  concurrence  of  the  election  of  these,  too,  on 
the  same  day,  always  had- and  always  would  bring 
along  wiih  it  the  great  drift  of  public  sentiment — 
not  always  correct.     And   if  we   would  prevent 
his  wrong   influence,   especially  in   this   State, 
where  it  would  be  highly  disadvantageous,  we  must 
contrive  to  separate  the  periods  of  electing  these 
officers. 

Mr.  MORRIS  would  make  a  suggestion  that 
would  prevent  the  necessity  of  an  argument  from 
he  gentleman,  (Mr.  SIMMONS) — if  this  was  adop- 
ed,  it  could  not  go  into  operation  till  the  fall  of 
1847 ;  and  then  if  you  elected  the  Governor  first 
'  one  year,  you  would  bring  him  at  his  next 
election  right  on  to  the  Presidential  election  again. 
The  new  Constitution  would  have  to  be  submitted 
and  voted  on  by  the  people  at  the  same  time  they 


172 


elected  their  Governor,  in  November.  And  thus 
they  would  all  be  brought  up  as  in  the  language 
of  his  military  friend,  Gen.  WARD,  "as  you  were." 

Mr.   SIMMONS  said  that  might  all  be  so,  but 
that  was  not  material.     He  was  calling  the  at:en- 
tion  of  the  Convention  to   the  importance  of  thi 
question.      And  he   hoped   that  every  one   who 
loved  his  land's  institutions  and  their  preservation 
in  purity,  would  do  all   they  could   to  so  arrange 
these  two  elections  as  to  avoid  the  concurrence  ot 
these  two  wrongdrifts  of  public  sentiment,  setting 
in  favor  of  executive  power,  rather  than  the  rep 
resentative  power. 

Mr.  STOWS  amendment  was  then  put,  and  lost. 
SECOND  SECTION— NATIVE  GOVERNOR. 

The  2d  section  was  then  read  : 

\  2.  No  person  except  a  native  citizen  of  the  United  States 
shall  be  eligible  to  the  office  of  governor  ;  nor  shall  any 
person  be  eligible  to  that  office  who  shall  not  have  attained 
the  age  of  thirty  years,  and  have  been  five  years  a  resident 
•within  this  State  j  unless  he  shall  have  been  absent  during 
that  time  on  public  business  of  the  United  States  or  of  this 
State. 

Mr.  MURPHY  rose  and  moved  to  strike  out  the 
word  ««  native."  He  said  that  he  first  wished  to 
test  the  sense  of  the  Convention  in  that  form  ;  and 
if  they  adopted  that  amendment,' he  meant  to  fol- 
low it  up  by  one  of  a  more  general  form  and 
character;  believing,  as  he  did,  that  all  these 
qualifications  which  were  proposed  to  be  required 
for  the  elected,  differing  from  those  qualifications 
required  from  the  electors,  to  be  inconsistent  with 
the  spirit  of  our  institutions — to  be  contrary  to  th^ 
spirit  of  our  government.  As  had  been  remarked 
by  the  gentleman  from  Onondaga,  (Mr.  RHOADES) 
the  Governor  to  be  elected  under  the  Constitution 
that  this  Convention  was  likely  to  frame,  would 
have  little  or  no  power  or  patronage.  His  office 
will  be  purely  administrative.  They  intended  to 
confer  on  the  people — and  in  that  he  concurred — 
the  power  to  elect  their  officers  of  almost  every 
description.  He  might  say  the  tendency  of  this 
convention  was  to  give  to  the  people  the  election 
of  all  officers;  and  yet  they  proposed  in  this  sec- 
tion to  say  that  although  the  people  are  capable  of 
electing  every  officer  in  the  State,  they  are  not 
capable  of  electing  a  proper  one,  and  therefore 
they  must  be  restricted  to  a  native.  The  provi- 
sion was  inconsistent  with  other  positions  of  this 
proposed  article  of  a  constitution.  Nobody  would 
contend  there  that  they  should  require  the  mem- 
bers of  the  legislature  to  be  native  born,  but  they 
would  allow  persons  of  alien  birth  to  be  elected 
to  legislative  office,  where  really  all  the  power  to 
do  good  or  mischief  rested.  Where  no  power  ex- 
isted but  to  administer  the  law,  the  occupant  of 
office  must  be  native  born,  and  yet  they  would, 
without  restricting,  put  the  supreme  legislative 
power — they  would  put  power  to  make  the  laws 
—probably,  in  the  hands  of  foreigners!  Now, 
this  was  contrary  to  the  practice  of  all  free 
governments.  There  was  not  perhaps  a  case 
throughout  this  Union  of  such  qualification  being 
incorporated  in  any  constitution.  A  gentleman 
near  him  said  there  was  in  the  United  States  con- 
stitution; but  he  asserted  that  the  provision  in  the 
United  States  constitution  was  not  so  broad  as 
this.because  they  could  elect  a  foreigner,provided  he 
came  here  before  the  adoption  ot  that  constitution. 
Besides,  the  difference  between  the  two  govern- 
ments was  very  great  and  Yery  apparent.  In  the 


state,   the  Governor  was  elected   by   the   people, 
but  it  was  not  so  with  t?te  President.  In  that  case, 
there  were  agents  interposed  between  the   people 
and   the  President  to  do  it.      The  President  was 
elected  by  "  electors,"  and  not  by  the   people  di- 
rectly.     The  people  were  too  numerous,  and   that 
perhaps  was  a  sufficient  reason  for  such  a  distinc- 
tion between  the  two   governments.     But   in   all 
free  governments  the  principle  prevails  of  allow- 
ing aliens  who  have  become  citizens  and  entitled 
to  all  the  privileges,  duties  and  immunities  of  citi- 
zens, to  have  the   supreme   power   conferred  on 
them.     A  foreigner  might  be   King  of  England, 
hut   he  could  not  be  Governor  of  the  State  of  N. 
York,  and  thus  we  were  adopting  more   stringent 
principles  than  even  monarchies.     We  were   also 
inconsistent  with  ourselves;  for  while  we  submit 
to  the  people  the  result  of  the  labors  of  this  Con- 
vention, such  a  restriction  exhibited  a  distrust   in 
fhe  intelligence  of  the  people,  for  it  was  in  effect 
saying  to  them, '«  we  cannot  intrust  you  with  the 
discretion  to  select  a  proper  man  as  Governor." — 
Now,  if  that  principle  were  true,  there   were  se. 
veral  members  in  that  Convention  who  had  no  bu- 
siness to  be  there,  and  thus  they  would  be  depriv- 
ed of  the  services  of  several  intelligent  and  patri- 
otic men.     Now  he  had  no  fear  bat  that  the  peo- 
ple would  do  right,  and   he  had  no  wish  to   keep 
here  what  was  introduced  into  the  constitution  by 
the   Convention  of  '21,  as  a  restriction.     It   was 
not  in  the  constitution  of  '77,  and  he  hoped  they 
would  restore  the  constitution  to  what  it  was,  and 
thus  follow  the  example  of  their  illustrious  ances- 
tors who  first  formed  a  constitution  for  this  State. 
Mr.  PATTERSON  was  extremely  gratified  with 
the  gentleman   from   Kings,  (Mr.  MURPHY)  for 
offering  this   amendment.     He   had  prepared  one 
himself  for  this  same  object;  and  he  should  have 
sent  it  up,  had  not  the  gentleman  from  Kings  an- 
ticipated him  ;  and  he  now  expressed  his  thanks 
to  him  for   his   motion.    He  could  not  see  that 
there  was  the  least  necessity  for  any  distinction  or 
difference  to  he  made  between  the  native  born  and 
the  naturalized  citizen  of  this  State.     And  if  this 
principle  had  been  adopted   at  the  earlier  part  of 
the  history  of  this   country,  who  was   there  then 
here  that  could  have  held  the  office  of  Governor 
of  the  State  of  New  York?     Scarcely  one.     Who 
were  the   earliest  settlers  of  this   country  ?     All 
foreigners,   who  left   their  native  coumry,  and 
came    here   to  seek,   as  they   found,   an   asylum 
for  the  oppressed.    And  when  foreigners  came 
here  and  took  the  oath  of  allegiance  to  this  coun- 
try and  government,   and  became  citizens,  why 
make  any  distinction  between  them  and  the  na- 
ive born  ?  why  attempt  to  exclude  them  from 
holding  any  office  in  the  gift  of  the  people  ?    He 
agreed  ,with  the  gentleman  from  King's,  (Mr. 
MURPHY)  that  it  was  distrusting  the  intelligence 
of  the  people  themselves  to  say  by  a  constitutional 
Drovision,  that  they   were  not  to  be  treated  with 
;he  selection  of  such  men   as  they  considered 
competent  to  discharge  the  Executive  duties ;  it 
was  as  if  to  say  by  this,  that  the  people  were  not 
capable  of  so  selecting.     He  was  greatly  surpris- 
ed when  this  report  was  thrown  upon  their  tables 
to  see  that  word  "  Native"  retained  there.     He 
ivas  surprised,  because   he  had  at  least  supposed 
hat  the  keen  and  penetrating  eye   of  his  friend, 
he  able  Chairman  of  that  committee,  (Mr.  MOR 


173 


RIS)  would  have  discovered  that  that  word  cer- 
tainly was  not  a  proper  one  to  be  used  there — and 
he  had  supposed  that  if  no  other  gentleman  had 
done  so,  that  the  gentleman  from  New- York 
would  have  been  among  the  first  to  strike  it  out. 
It  was  true  that  this  word  was  in  the  Constitution 
at  present,  and  he  was  bound  in  common  charity 
to  that  committee  to  suppose  that  the  word  had 
been  passed  over  without  being  observed — that  it 
was  overlooked— that  in  copying  off  the  provis- 
ion of  the  old  Constitution  (which  he  supposed 
was  done  by  the  chairman  himself,)  it  was  over- 
looked ;  but  yet  he  was  astonished — it  appeared 
very  singular,  that  in  copying  this  the  chairman, 
the  gentleman  from  New-York,  (Mr.  MORRIS,) 
had  not  let  his  pen  slip  through  that  word  or  not 
have  written  it  at  all.  Let  that  word  stand  there 
in  the  new  Constitution,  and  how  large  a  number 
of  that  gentleman's  own  constituents  will  be  for- 
ever debarred  from  holding  the  office  of  Govern- 
or of  the  state  of  New- York?  He  (Mr.  P.)  did 
not  know  the  number,  but  beyond  a  doubt  it  was 
a  very  large  one.  Every  year  for  many  years 
that  he  had  been  in  the  legislature,  he  had  seen 
the  evil  of  this ;  for  he  had  never  known  a  time 
when  there  were  not  amongst  the  representatives 
from  the  city  of  New- York,  gentlemen,  who  were 
not  native  born,  but  naturalized  foreigners — and 
he  presumed  this  to  be  indicative  that  this 
respectable  class  of  citizens  were  somewhat 
numerous  in  New-York  city.  Why  we  have 
in  this  very  Convention,  a  venerable  and 
highly  distinguished  gentleman  from  the  city 
of  New- York,  who  is  not  a  native  born  citizen. — 
(Here  he  pointed  to  the  Hon.  C.  P.  WHITE, 
whose  seat  is  on  the  right  of  the  President's 
chair.)  That  gentleman  had  also  served  his  con- 
stituents with  hon»r  and  distinction  in  the  Con- 
gress of  the  United  States.  And  would  they  ex- 
elude  that  gentleman  from  filling  the  office  of  Gov. 
of  the  State  j  or  aay  other  citizen  whom  the  peo- 
ple might  think  p;oper  to  select  for  the  office. — 
He  would  give  this  privilege  to  the  people  to  the 
fullest  extent  He  had  at  this  time  in  his  mind's 
eye  several  eminent  and  distinguished  native 
born  citizens  in  various  parts  of  the  State  lor 
whom  he  should  be  proud  to  vote  lor  the  office  of 
Governor.  He  knew  several  distinguished  natu- 
ralized citizens  who  had  proved  to  be  very  valua- 
ble members  of  Congress.  He  had  known  one — 
a  genileman  from  the  Western  part  of  the  State — 
the  county  of  Ontario — whe  was  a  very  able  mem- 
ber of  the  house  of  Representatives  for  some  years 
— he  knew  no  man  of  more  talent — or  more  capable 
of  filling  any  office  in  the  gift  of  the  people,  01 
within  the  whole  range  of  his  acquaintance,  for 
whom  he  would  sooner  cast  his  vote.  That  gen- 
tleman h  id  been  a  citizen  of  this  country  longer 
than  he  (Mr.  P.)  had  had  an  existence;  and  if 
this  principle  prevailed  they  would  be  deprived 
of  the  valuable  services  of  so  honorable  and  com- 
petent a  gentleman.  He  hoped  the  amendment 
would  prevail,  and  that  by  an  unanimous  vote  ot 
the  ommittee  this  objectionable  word  would  be 
stricken  out;  for  it  must  have  been  entirely  by  an 
oversight  that  this  section  of  the  report  of  the 
committee  had  been  brought  before  them  in  that 
shape  ;  it  never  could  have  been  intended,  lor 
there  was  more  than  one  gentleman  sent  to  this 
Convention  to  revise  the  old  or  draft  a  new  Con- 


stitutiun  who  were  not  native  born.  He  saw  be- 
fore him  his  aged  friend  from  Steuben  (Mr.  KER- 
NAN.)  and  the  gentleman  from  Cayuga  (Mr. SHAW) 
and  where  would  these  gentlemen  now  have  been 
if  this  principle  had  universally  prevailed,  or  been 
made  applicable  to  this  Convention  ?  Why,  they 
would  have  had  to  remain  at  home ;  and 
left  to  those  who  were  fortunate  enough  to  have 
been  native  born,  the  monopoly  of  seats  in  this 
body.  He  believed  that  our  forefathers  were  as 
wise  and  as  good  citizens  as  were  we  of  the  pre- 
sent day.  He  considered  that  his  grandfather, 
who  came  from  the  other  side  of  the  water,  was 
as  wise  and  as  patriotic  as  any  of  his  descendants 
at  the  present  day ;  that  he  was  quite  as  good  as 
he  was.  He  would  leave  this  subject  entirely  to 
the  people.  Let  them  elect  whom  they  pleased. 
In  them  he  had  entire  confidence  in  relation  to 
this  matter;  for  he  was  quite  satisfied  that  they 
would  elect  their  best  men.  By  and  by  he  meant- 
to  propose  to  amend  this  section  still  further, 
by  having  struck  out  or  it  all  that  part  relat- 
ing to  the  age  at  which  a  man  should  be  eli- 
gible for  the  office  of  Governor  of  the  State.  He 
would  not  have  a  man  asked  whether  he  was  30 
years  of  age,  or  35,  or  25;  or  have  him  excluded 
if  he  lacked  but  one  year  of  the  time  and  was  only 
just  turned  29  years  of  age.  The  people  would 
take  care  that  he  was  capable  and  that  was  suffi- 
cient. If  the  people  thought  proper  to  select  a 
young  man,  and  if  that  young  man  at  25  or  21 
years  of  age,  had  so  far  by  his  natural  talent  and 
abilitieSj  and  due  application  and  energy,  had 
raised  himself  so  far  above  the  level  of  those 
around  as  to  be  the  most  fit  person  for  the  office  of 
Governor,  in  his  neighborhood,  he  would  not  offer 
any  obstruction  thereto.  He  would  leave  the  peo- 
pie  to  decide  the  age  of  their  candidate.  All 
that  he  would  have  asked  or  required  was  wheth- 
er the  person  so  elected  was  a  citizen  of  the  U.  S., 
of  capability  and  ot  good  character,  and  an  elector 
of  the  State.  He  was  in  favor  of  the  amendment 
now,  because  it  was  out  of  order  to  strike  out  the 
whole  section ;  but  he  very  much  doubted  the 
propriety  of  letting  any  part  of  that  section  remain 
in  the  Constitution. 

Mr.  PERKINS  said  that  he  also  wished  to  have 
the  section  struck  out ;  and  he  had  intended  be- 
fore this  to  move  an  amendment  to  strike  it  out 
entirely.  He  did  not  see  any  thing  in  the  section 
that  it  was  desirable  to  retain  even  when  the 
word  "  native"  was  stricken  out.  He  would  add 
in  reference  to  the  motion  of  the  gentleman  from 
Kings  that  it  was  unlikely  that  a  person  would  be 
elected  governor  of  the  state  who  was  not  a  native 
born  citizen  unless  he  had  rendered  some  re- 
markable service  to  the  state,  and  in  that  event 
they  should  not  desire  to  exclude  such  a  citizen 
from  the  office.  There  were  coming  into  this 
state  annually  a  large  number  of  foreigners  who 
brought  with  them  children,  some  of  them  were 
infants — who  were  brought  up  here  from  their 
earliest  years ;  some  of  these  might  probably  ren- 
der as  efficient  service  to  the  state  as  any  citizen 
could  render  to  his  country,  and  would  it  be  desi- 
rable to  exclude  from  the  office  of  governor  such 
citizens  if  the  people  were  disposed  to  elect  them? 
Would  it  be  desirable  to  exclude  from  that  office 
by  constitutional  provision  any  such  citizens  of 
foreign  birth  merely  who  might  be  possessed  of 


174 


extraordinary  talent  ?  Again  the  manufacture  of 
such  a  principle  into  our  Constitution  might  re- 
sult in  an  incongruity.  On  a  reference  to  the 
Constitution  adopted  by  the  Convention  of 
1821,  it  would  be  found  that  there  was  no 
such  restriction  on  the  office  of  lieutenant 
governor.  But  the  6th  section,  both  of  the 
present  Constitution  and  the  proposed  article  of 
the  new  Constitution,  declared  that  in  case  of 
the  impeachment  of  the  Governor,  or  his  removal 
irom  office  by  death  ot  otherwise,  the  powers  and 
duties  should  devolve  on  the  Lieutenant  Governor. 
This  was  like  the  provision  in  the  United  States 
Constitution,  by  which  a  Vice  President  had  suc- 
ceeded to  the  Presidency  of  the  Union,  for  it  was 
agreed  on  the  death  ot  General  Harrison  that  Mr. 
Tyler  became  President  to  all  intents  and  purpo 
ses.  Now,  if  they  required  a  certain  qualification 
in  their  Governor,  and  no  such  qualification  for 
Lieutenant  Governor,  and  a  vacancy  should  hap- 
pen, it  would  be  a  matter  of  construction  and 
doubt  whether  the  Lieutenant  Governor  could  take 
upon  himself  and  discharge  the  duties  of  Governor 
of  this  State.  Probably  it  would  be  construed  that 
the  express  declaration  that  the  Lieutenant  Gov- 
ernor should  in  such  an  emergency  exercise  all 
the  powers  and  duties  of  the  governor,  would  con- 
trol the  previous  language,  and  he  might  succeed 
to  the  office  of  Governor  or  to  the  execution  ot  his 
powers  and  duties,  but  certainly  there  would  be 
room  for  controversy,  doubt,  and  partisan  strife  in 
relation  to  it,  which  it  would  be  prudent  to  avoid 
Now,  if  this  section  should  be  retained,  he  should 
feel  it  to  be  his  duty  to  move  to  put  the  same  re- 
strictions on  the  qualifications  of  the  Lieutenant 
Governor,  to  prevent  any  incongruity  in  the  Con- 
stitution. 

Mr.  CORNELL,  like  the  gentleman  from  Chau- 
tauque,  (Mr,  PATTERSON,)  had  prepared  an 
amendment  of  a  more  general  character,  which 
he  had  intended  to  offer  to  this  section  ;  it  includ- 
ed, as  its  most  essential  feature,  the  amendments 
which  had  been  prepared  by  his  friend  from 
Kings,  (Mr.  MURPHY,)  with  whose  remarks  he 
was  pleased;  for  himself,  he  had  at  present,  but 
one  remark  to  make.  It  was  in  reference  to  the 
provision  of  the  Constitution  of  the  United  States, 
which  had  been  referred  to,  and  from  which  he 
believed  this  portion  of  the  section  under  consi- 
deration had  been  taken  by  the  Convention  of 
1821.  He  thought,  there  had  been  a  strong,  if  not 
a  sufficient  reason  for  the  interposition  of  such  a 
provision  in  the  Federal  Constitution,  weighing 
upon  the  Convention  by  which  that  instrument 
was  framed,  which  could  have  no  application  to 
the  selection  of  a  Governor  of  this  Slate.  It  was, 
that  the  President  of  the  United  States,  in  the  per- 
formance of  his  official  duties,  was  often  brought 
in  contact  with  foreign  governments,  among  v\  hich 
might  be  the  one  of  which  the  President,  if  a  na- 
turalized citizen,  had  been  a  native  born  citizen  or 
subject.  In  such  case,  it  might  have  been  suppos- 
ed that  some  undue  influence  would,  or  mijiht 
reach  him  in  negociating  with  that  government, 
or  with  its  enemies,  which  would  not  reach  him 
in  treating  with  other  nations.  But  in  the  case 
of  a  Governor  of  this  State,  that  objection  to  alien 
birth  could  not  apply,  inasmuch  as  the  Governor 
of  this  State  could  have  no  legal  intercourse  with 
governments  beyond  the  Federal  Union.  For 


that  reason — and  to  hin\  it  was  a  very  weighty 
reason — the  provision  in  the  Constitution  of  the 
United  States,  should  have  no  weight  here,  as  an 
example  to  guide  our  action,  in  this  particular. 
Mr.  RHOADES  said  he  was  in 'favor  of  the 
proposition,  not  altogether  for  the  reasons  assign- 
ed by  the  gentleman  from  Kings  (Mr.  MURPHY) 
and  from  Chautauque  (Mr.  PATTERSON)  but  for 
other  reasons.  When  our  forefathers  entered  into 
the  struggle  for  liberty  they  invited  the  friends 
of  liberty  from  all  parts  ofthe  earth  to  join  them. 
That  invitation  was  accepted  by  a  great  number 
of  the  friends  of  liberty  in  the  old  world — they 
came  over — they  acted  and  fought  their  share  in 
the  battles  of  freedom,  and  sustained  their  portion 
of  the  hardships  in  achieving  this  country's  inde- 
pendence. These  were  not  required  to  be  native 
born,  and  since  then  the  Congress  of  the  United 
States,  by  the  facilities  which  it  has  extended  to 
persons  for  emigrating  to  this  country  and  to  be- 
come naturalized  citizens,  has  shown  that  they 
meant  to  extend  the  privileges  of  this  blessed 
country  to  the  oppressed  in  all  parts  of  the  world. 
And  we  of  this  State,  by  our  legislative  enact- 
ments giving  the  rights  and  privileges  of  those 
who  are  not  citizens  to  hold  real  estate,  have 
shown  the  same  feeling  and  evinced  clearly  that 
we  are  willing  to  afford  all  an  asylum  here — and 
that  we  wish  to  have  them  without  distinction 
part  and  parcel  of  our  own  people.  And  what- 
ever any  one  may  think  or  talk  about  the  dangers 
likely  to  arise  from  foreign  emigration,  or  this  le- 
gislation in  regard  to  it,  it  is  a  "  fixed  fact" 
that  this  country  is  destined  to  have  a  still 
gr<-  ater,  a  much  greater  purtion  of  emigration  from 
foreign  countries  than  it  has  yet  had.  This  is  in- 
creasing rapidly  year  after  year ;  it  will  always 
go  on  ;  and  his  feeling  was  that  when  the  people 
from  foreign  countries  corne  here  with  the  view 
to  settle  among  us  and  to  become  citizens  in  reali- 
ty that  there  should  be  nothing  left  to  show  them 
that  they  are  of  a  different  order  or  class  from  the 
native  born  ;  all  distinctions  of  this  kind  he  want- 
ed abolished.  He  wanted  them  all  to  feel  that 
they  owed  not  a  panicle  of  obligation  or  allegi- 
ance to  any  government  on  the  face  of  the  earth 
except  ours.  He  wanted  them  to  feel  they  were 
truly  American  citizens.  And  if  there  was  any 
danger  at  all  to  be  apprehended,  (which  he  be- 
lieved there  was  not,)  from  foreign  emigrations  it 
was  in  the  danger  that  was  to  be  apprehended  from 
our  own  course  in  adopting  some  stringent  rules, 
or  laws,  or  paity  organization,  that  might  drive 
these  men  together  to  form  some  sort  of  clanship 
in  self  defence,  as  they  might  deem  it.  They 
might  then  organize  to  carry  out  their  own 
views  and  plans,  but  under  such  they  were  very 
likely  to  be  misled  ;  and  the  sooner  they  get  rid 
of  those  views  and  feelings,  and  were  brought  to 
see  and  feel  that  they  were  Americans,  the  better. 
He  wanted  them  to  be  educated  in  the  doctrines 
only  of  American  citizens.  He  had  seen 
with  regret  organizations  of  military  compa- 
nies and  other  organizations  of  associations, 
with  foreign  titles  and  distinctions.  All  this  was 
wrong.  He  had  seen  Gtirnan  companies  and  Irish 
companies,  and  others  formed  in  this  State,  and 
he  was  soiiy  to  see  these  associations  of  such 
distinctive  characters.  He  wished  to  see  them 
all  sink  down  into  the  plain  and  noble  title  cf 


175 


American  citizen,  and  if  we  wish  to  concentrate 
all  these  in  one  bond  of  brotherhood ;  we  must 
get  rid  of  every  thing  in  our  Constitution  and 
laws  that  tends  to  keep  alive  and  perpetuate  these 
national  distinctions,  and  the  sooner  this  is  done 
the  better,  and  then  the  foreigner  will  forget  that 
he  is  anything  but  an  American  citizen  living  in 
his  own  land. 

Mr.  BASCOM  wished  to  say  one  or  two  words 
before  the  vote.  He  was  obliged  to  the  gentle- 
man who  offered  the  amendment  and  to  all  who 
advocated  it;  but  vet  he  would  not  be  regarded  as 
a  convert  to  the  reasons  they  had  advanced  for 
their  support.  He  should  vote  for  it,  but  not  for 
the  reasons  assigned  by  some  that  the  new  Con- 
stitution would  strip  the  Governor  of  so  much  of 
his  power  as  to  make  it  less  dangerous  to  allow  a 
foreigner  born,  to  exercise;  nor  was  it  an  induce- 
ment to  him  to  vote  that  this  course  would  go 
abroad  and  show  that  we  were  willing  to  engraft 
a  little  more  by  favor  of  the  grace  of  God  upon 
our  stock;  none  of  these  reasons  influenced  him 
But  it  was  because  that  the  principle  of  resfric- 
tion  is  wrong.  It  was  because  these  restrictions 
would  be  an  infringement  of  the  great  principle 
of  the  right  of  the  popular  power  to  designate  and 
put  in  power  whom  it  pleases. 

The  amendment  was'adopted  with  one  dissent- 
ing voice,  (Mr.  PENNIMAN'S). 

Mr.  PATTERSON  then  moved  to  strike  out  the 
part  restricting  the  age  of  the  Governor  to  be  ovei 
30  years.  He  thought  21  old  enough. 

Mr.  RUSSELL  wanted  to  offer  an  entire  substi- 
tute for  the  section  in  the  form  of  an  affirmative 
proposition.  This  clause  had  been  copied  care- 
lessly from  the  Constitution,  without  a  thought 
about  the  phraseology.  And  he  wished  it  merely 
to  say  that,  "any  person  who  is  a  citizen  ot  the 
U,  8.  and  a  qualified  elector,  is  eligible  to  the  of- 
fice of  Govei  i 

Mr.  SHEPAKD  asked  if  it  would  be  in  order  to 
strike  out  tiie  whole  section. 

The  CHAIR  said,  "No  " 

Mr.  PATTERSON  said  it  would  be  in  order  to 
perfect  the  clause;  and  then  "to  strike  out" 
would  be  in  order;  but  not  before  its  friends  (as  it 
was  termed)  had  time  to  perfect  it. 

Mr.  RUSSELL  said  that  Mr.  P.  was  right  only 
in  part— it  might  not  be  right  to  strike  out  alto- 
gether, but  he  could  move  to  strike  out  and 
insert  a  substitute. 

The  CHAIR  said  there  was  no  such  thing  known 
in  parliamentary  usage  as  a  substitute.  A  motion 
could  be  made  to  strike  out  and  insert. 

Mr.  RUSSELL  withdrew  it. 

Mr.  PATTERSON'S  amendment  was  put  and 
carried. 

The  committee  then  rose  and  reported,  and 
leave  was  granted  to  sit  again. 

The  Convention  then  adjourned  to  11  o'clock. 
A.  M.,  on  Saturday. 


SATURDAY,  (24th  day)  June  27. 

Prayer  bv  Rev.  Mr  FISHER. 

The  PRESIDENT  presented  a  memorial  from 
Mr.  W.  H.  Remsen,  praying  that  Justices  &c.  be 
never  allowed  to  try  or  decide  a  cause  without  a 
Jury— as  in  the  case  of  the  New  York  Special 
Sessions.  Referred  to  the  Committee  on  the  Ju. 
diciary. 


The  Returns  of  the  Clerk  of  the  6th  Circuit, 
relative  to  the  number  of  bills  filed  and  causes  on 
the  calendar  in  ] 844-5,  was  referred  to  the  same. 

The  Returns  of  the  Clerk  of  the  4th  Circuit 
Court,  relative  to  the  value  of  the  real  estate  of 
infants  sold,  the  amount  of  money  invested,  the 
costs,  &c.,  for  1844-5,  was  also  referred  to  the 
Judiciary  Committee.  This  is  the  first  of  these 
returns. 

THE  TAXATION  OF  MORTGAGES,  &c. 

Mr.  STRONG  called  up  the  following: 

Resolved,  That  there  be  in  the  Constitution  an  article 
containing  in  substance  the  following  provisions:  That 
all  bonds,  mortgages,  judgments  and  all  other  evidences 
of  debt  which  are  liens  on  real  estate,  shall  not  be  taxed 
as  personal  'property,  and  that  all  real  estate  shall  be  tax- 
ed to  the  owner  or  occupant  at  its  fair  value;  and  that  any 
person  or  persons  owning  or  holding  any  bond,  mortgage, 
judgment  jr  any  other  evidence  of  indebtedness  which 
are  liens  on  real  estate,  shall  be  liable  to  the  person  or 
persons  to  whom  the  same  shall  have  been  taxed  for  his, 
her  or  their  portion  of  said  tax,  in  proportion  to  the  inte- 
rest he,  she  or  they  may  have,  hold  or  own  in  said  real 
estate. 

Mr.  KENNEDY  asked  him  to  make  the  resolu- 
tion one  of  enquiry. 

Mr.  STRONG  said  that,  he  preferred  not  to  do 
so.  If  the  principles  contained  in  his  resolution 
were  wrong,  then  he  hoped  and  wished  that  some 
gentleman  would  point  them  out.  He  was  not 
wedded  particularly  to  the  details  of  it ;  they  were 
the  reflection  of  a  few  moments  of  his  own. — 
His  resolution  only  wished  to  have  the  principle 
it  contained  embodied  in  substance  in  the  Con- 
stitution ;  not  the  words  of  it  merely,  but  the 
principle  There  was  something  decidedly  and 
radically  wrong  about  the  present  mode  of  taxing 
personal  property  and  real  estate.  In  many  in- 
.stances — not  a  lew — double  taxes  were  paid  on  a 
large  amount.  One  object  he  had  was  to  remedy 
this  evil ;  and  another  object  was  to  reach  a  large 
amount  of  property  that  is  now  covered  up  and 
concealed  in  such  a  way  that  the  taxation  does 
not  reach  it  all.  Some  said  this  was  a  matter  for 
the  legislature  to  pass  upon;  but  he  would  ask, 
had  the  legislature  remedied  the  evil?  Never.— 
And  we  never  should  get  a  remedy  until  we  en- 
graft this  principle  on  the  Constitution,  so  that  it 
may  be  carried  out  in  practice,  and  justice  be 
exercised  alike  to  all  in  this  very  serious  matter 
of  taxation. 

Mr.  SHEPARD  moved  its  reference  to  commit- 
tee No.  14. 

Mr.  RHOADES  feared  that  it  would  be  con- 
sidered, as  now  worded,  as  instructing  that  com- 
mittee to  report  a  clause  in  the  Constitution  em- 
bracing these  principles;  would  the  gentleman  say 
"  they  be  requested  to  consider  ?" 

Mr.  STRONG  said  he  thought  not.  The 
Convention  expressed  no  opinion  by  sending  it 
to  a  committee. 

Mr.  MARVIN  said  it  certainly  did  instruct 
them.  It  called  for  a  positive  expression  that 
there  should  be  in  the  Constitution  an  article  in 
substance  like  that  embodied  in  the  resolution  ; 
the  gentleman  (Mr.  STRONG)  did  not  offer  it  with 
the  view  of  sending  it  to  a  committee  to  enquire 
into  the  expediency  of  such  a  provision,  but  it 
was  in  such  a  shape  as  to  be  imperative,  if  adopt- 
ed. And  if  they  attempted  to  incorporate  pro- 
visions like  this  into  a  constitution  they  would 
have  a  constitution  more  voluminous  than  any 


176 


ever  yet  made,  and  they  would  be  required  to  re- 
main here  a  much  longer  period  than  any  of  them 
dreamed  of.  The  legislature  had  always  had 
power  over  this  whole  subject  of  taxation,  and 
it  must  have  that  power.  But  if  they  attempted 
to  go  into  such  details  they  would  involve  them- 
selves in  difficulty.  There  was  an  evil  in  the 
mode  of  assessing  the  great  and  increasing  bur- 
thens of  taxation.  Now,  for  an  example,  the  oc- 
cupants of  land  were  taxed  as  owners,  whilst  in 
point  of  fact,  the  property  might  all  be  in  the  land 
owner,  being  held  on  contracts.  There  were  per- 
haps difficulties  requiring  attention — but  in  fram- 
ing a  constitution  they  were  not  to  attempt  to  lay 
down  a  system  ol  taxation.  On  looking  over  this 
resolution,  it  would  be  seen,  that  it  seemed  to 
suppose  that  the  subject  was  before  us  as  a  legis- 
lature. It  took  the  position  that  bonds  and  mort- 
gages should  not  be  taxed,  but  that  the  land  on 
which  they  were  an  incumbrance  should  be,  and 
that  the  occupant  should  deduct  a  proportionate 
share  from  the  person  wTho  had  a  lien  on  it  by 
judgment,  mortgage,  or  otherwise.  How  would 
this  operate  ?  Here  was  a  judgment  of  $1000. 
It  might  be  a  lien  on  half  a  dozen  farms,  but  the 
owner  of  the  judgment  was  worth  $1000,  for  the 
judgment  was  worth  $1000  to  him.  When  the 
occupant  of  one  of  these  farms  was  taxed,  was  he 
to  call  upon  the  holder  of  the  lien  to  refund  in 
part ;  and  was  his  neighbor  also  to  do  the  same  ? 
These  were  difficulties  which  should  satisfy  the 
gentleman  from  Monroe  (Mr.  STRONG)  that  this 
matter  should  be  left  to  legislation.  There  were 
other  difficulties  also  in  the  way,  which  he  would 
not  advert  to  now,  further  than  to  say,  that  in 
framing  a  constitution  we  were  not  to  interfere 
with  vested  rights  and  contracts.  If  any  such 
provisions  were  to  be  engrafted'  by  them  on  the« 
Constitution,who  could  possibly  tell  what  it  might 
lead  to  ? 

Mr.  STRONG  said  that  he  had  prognosticat- 
ed this  in  the  onset,  that  those  who  did 
not  wish  to  debate  the  resolution  would  try 
to  get  lid  of  it  by  a  motion  to  lay  it  on  the 
table.  Why  should  it  be  laid  on  the  table  ?— 
The  gentleman  last  up  admits  thaj,  there  is  some, 
thing  wrong  here;  but  thinks  it  more  a  matter  of 
legislation,  than  to  be  provided  for  in  the  Consti- 
tution. He  hoped  the  gentleman  from  Chau- 
tauque  (Mr.  MARVIN)  had  not  come  to  the  same 
conclusion  as  his  friend  from  Oneida  (Mr.  KIRK- 
LAND)  the  other  day,  that  however  good  a  thing 
might  be,  however  just,  or  however  right,  it' it  was 
not  law,  it  could  not  be  adopted,  and  thajt  whatever 
was  law  now  should  not  be  touched.  Now  here  is  a 
wrong  that  had  existed  as  long  as  he  could  re- 
member— and  the  legislature  wilh  full  power  to 
remedy  it,  had  not  done  it,  and  never  would. — 
This  was  a  day  of  reform.  The  people  had  sent 
us  there  to  get  the  reforms  which  they  could 
not  get  through  the  legislature.  Hence  it  was 
that  this  or  some  similar  principle  should  be  in 
the  Constitution.  He  had  heard  the  difficulty 
suggested  before,  that  you  could  not  apportion  the 
tax  where  a  judgment  covered  several  pieces  of 
property — but  it  was  a  very  easy  matter  to  cal 
culate  how  much  should  be  refunded  to  the  occu- 
pant or  owner  ol  each  farm.  Any  body  could 
cypher  that  out.  But  another  case— the  opposite 
had  been  brought  up — the  case  of  a  mortgage  o 


$5,000  on  a  farm  assessed  at  only  $2,000.  In  that 
case,  it  was  said  the  man>vho  held  the  mortgage 
would  pay  the  whole  tax  on  the  land:  That 
would  be  so  under  his  proposition:  but  how 
would  it  be  under  the  present  system?'  The  man 
who  held  the  mortgage,  unless  he  covered  up  his 
lien,  would  have  to  pay  taxes  on  $3,000  besides 
— whereas,  under  his  system,  this  $3,000  would 
pay  nothing.  Was  there  any  thing  in  that  ope- 
rating against  the  mortgage  holder  ?  And  on  the 
other  hand,  the  interest  of  the  occupant  would  be 
to  bring  into  the  assessment  these  mortgages,  that 
now  escaped  taxation  in  a  great  degree.  The 
man  who  has  an  interest  in  getting  back  his.  taxes 
,vill  look  up  all  his  mortgages,  and  then  he  would 
get  a  lien  on  it  to  the  amount  of  the  tax.  He  did 
not  object  to  a  reference,  but  he  did  not  want  the 
resolution  to  sleep  on  the  table.  And  there  was 
nothing  in  the  mere  act  of  referring  if  that  com- 
mitted the  Convention  to  it — any  more  than  there 
,vould  be  in  referring  a  petition  or  memorial.  If 
the  Convention  passed  a  direct  vote  on  the  reso- 
lution, that  would  be  adopting  the  principle. — 
But  he  did  not  ask  that.  He  wished  it  referred 
to  Committee  No.  2,  who  now  had  this  taxation 
subject  before  them. 

Mr.  RHOADES  would  not  object  if  the  resolu- 
tion was  couched  in  the  same  language  as  other 
resolutions;  directing  the  committee  to  consider. 

Mr.  CROOKER  said  there  appeared  to  altogeth- 
er too  much  sensitiveness  here  about  the  phrase- 
ology of  resolutions.  He  wished  all  this  left  to 
the  mover  of  them.  The  merits  of  this  or  any- 
other  question  were  not  at  all  involved  in  a  mere 
motion  of  reference.  The  reference  committed 
nobody,  and  it  was  only  courteous  to  the  mover 
to  allow  him  to  refer  it  in  what  shape  he  pleased. 

Mr.  TOWNSEND  s^id  that  really  for  his  own 
part  he  could  not  see  that  there  was  anything 
wrong  in  the  way  the  resolution  was  drafted.  It 
was  a  very  important  matter;  and  the  discussion 
was  proper  He  differed  from  the  mover  as  to 
the  remedy  he  suggested.  He  proceeded  to  ad- 
vocate an  amendment  to  confine  taxation  to  real 
estate  only.  As  it  was,  the  city  of  New  York 
paid  nearly  one  half  of  the  State  mill  tax.  There 
were  there  annually  returned  about  $240,000,000 
of  taxable  property.  Of  this  about  $1/70,000,000 
was  real  estate,  about  $40,000,000  banking  and  in- 
surance capital,  leaving  only  some  $30,000,000  as 
personal  property.  This  certainly  could  not  be 
all  the  personal  property  in  that  city,  and  showed 
that  there  was  great  concealment  of  such  from  the 
Assessor.  He  only  stated  this  fact  to  show  the  im- 
portance of  the  inquiry  suggested  by  the  gentle- 
man from  Monroe.  He  differed^  from  some  that 
this  should  be  left  to  legislation  merely.  He  deem- 
ed it  of  importance  sufficient  to  become  a  Consti- 
tutional provision.  It  was  not  a  mere  matter  of 
legislation. 

It  was  finally  referred  to  committee  No.  2  as 
Mr.  STRONG  desired. 

TITLES  OF  ACTS. 

Mr.  TAGGART  offered  the  following:— 

Resolved,  That  the  second  committee  consider  and  re- 
port on  the  expediency  of  incorporating  a  provision  in  the 
Constitution,  providing  that  every  law  passed  by  the  le- 
gislature shall  in  its  details,  be  in  accordance  with  its  title- 
Mr.  TAGGART  said  that  what  had  induced 
him  to  offer  this  resolution,  was  the  examination 


177 


he  had  made  of  a  law  passed  last  winter,  the  title 
of  which  was  an  "  act  concerning  passengers  in 
ressels  coming  into  the  port  of  New  York  ;"  and 
the  last  section  of  that  law  contained  a  provision 
allowing  the  Corporation  of  New  York  to  "regu- 
late the  rates  of  wharfage  charged  upon  goods 
discharging  from  vessels  at  the  wharfs  and  piers" 
in  that  rity.  Incongruities  were  also  observed  in 
other  laws  which  had  come  under  his  notice,  one 
of  which  was  "an  act  to  amend  certain  parts  of 
the  Revised  Statutes  in  relation  to  bringing  ap- 
peals and  writs  of  error,"  the  3d  section  of  which 
repeals  the  31st  section  of  an  ''act  concerning 
costs  and  fees  in  courts  of  law."  At  the 
same  session  there  were  two  laws  passed,  which 
might  properly  have  contained  the  latter 
provision,  but  did  not  ;  and  he  had  gone  on  for 
several  months  without  knowing  that  the  above 
repeal  had  been  made  at  all.  There  were  many 
other  abuses  of  this  kind  that  had  been  practiced 
in  the  titles  of  acts  ;  and  he  thought  it  high  time 
that  a  stop  was  put  to  it 

Mr.  RICHMOND  was  very  glad  to  see  this 
first  step  taken.  Some  remedy  was  wanted  for 
this  abuse;  he  knew  many  instances  of  the  kind 
named  ;  and  one  was  a  bill  passed  in  1841,  which 
purported  to  be  a  bill  for  a  Legal  Reform  ;  and 
this  very  bill  actually  increased  the  fees  of  law- 
yers 25  per  cent.  And  it  required  a  great  deal 
of  courage  to  vote  against  a  bill,  with  such  a 
title  ;  but  he  did  do  so,  as  he  could  not  get  the 
title  changed. 

Mr.  STRONG  was  entirely  in  favor  of  this 
matter.  He  knew  a  bill  that  had  been  before 
the  leislature  to  compel  the  Utica  and  Sche. 
nectady  Railroad  to  carry  freight  And  there 
were  the  friends  of  that  company  hanging  around 
this  lobby  all  winter,  complaining  that  it  would 
be  very  hard  on  the  company  to  have  this  bill 
passed  ;  and  yet  all  the  time  urging  it  through 
the  legislature,  because  it  was,  they  said,  for 
the  people';  gn,,d.  And  at  the  close  of  the 
session,  that  and  many  other  bills,  came  in  the 
liltle  rider  to  do  so  and  so,  *«  and  for  other  pur- 
poses." How  was  that  to  be  got  rid  of? 

Mr.  NICOLL  was  in  favor  of  the  resolu 
tion  — He  knew  a  case  in  point.  It  had  long 
been  considered  as  settled  law,  that  a  man  could 
not  apply  for  a  divorce  from  his  wife  on  the 
ground  of  her  cruel  treatment  to  him.  This 
was  so  considered  by  the  Courts.  And  yet  in 
arguing  a  case  of  this  kind  some  time  ago,  the 
counsel  opposed  to  him  brought  forward  a  sta- 
tute  the  title  of  which  was,  "  An  act  for  chang- 
ing the  time  of  holding  the  General  Sessions, 
and  for  other  purposes."  And  on  this  very  act 
was  engrafted  a  rider  allowing  a  man  to  sue 
for  a  divorce  on  the  ground  of  cruel  treatment 
by  his  wife.  Who  would  have  ever  thought 
of  wading  through  the  local  statutes  to  look 
for  this  in  such  a  place.  And  the  trouble 
would  be  endless,  unless  such  titles  were  given  to 
acts  that  would  enable  lawyers  at  least  to  know 
what  they  contained.  For  it  was  disagreeable  to 
find  themselves  unexpectedly  floored  by  these  in- 
congruous laws. 

The  resolution  was  then  adopted. 

Mr.  WARD  moved  to  lay  the  pending  order  of 
business  on  the  table,  so  as  to  go  into  committee 
of  the  whole,  on  the  report  of  Mr.  MORRIS  rela, 


tive  to  the  powers,  duties,  &c.    of  the  Executive. 
But  he  withdrew  it,  to  allow 

A  RECESS. 

Mr.  RUSSELL  to  make  a  motion  that  the  Con. 
venlion  to  take  a  recess  for  10  days,  from  about 
the  10th  to  the  20th  of  July. 

This  produced  some  discussion ;  it  was  pretty 
generally  opposed;  but  some  proposed  to  adjourn 
irom  next  Friday  to  Monday  or  Tuesday  morning, 
so  as  not  to  sit  on  the  4th  of  July. 

Mr.  RUSSELL  said  he  had  accomplished  his 
object,  in  testing  the  sense  of  the  Convention  ;  and 
as  a  motion  to  adjourn  over  the  4th  of  July  could 
be  made  at  any  time,  he  would  withdraw  his  mo- 
tion. 

THE  POWERS  &c.  OF  THE  EXECUTIVE. 

The  Convention  then  on  motion  of  Mr  WARD 
went  into  committee  of  the  whole  on  the  following: 

The  question  was  upon  the  second  section, 
which  as  amended  read  as  follows: — 

§  2.  No  person  except  a  citizen  of  the  United  States  shall 
be  eligible  to  the  office  of  Governor;  nor  shall  any  person 
be  eligible  to  that  office  who  shall  not  have  been  five  years 
a  resident  within  this  State,  unless  he  shall  have  been  ab- 
sent during  that  time  on  public  business  of  the  United 
States,  or  of  this  State. 

Mr.  PATTERSON  said  that  Mr.  BRUCE  had 
left  an  amendment  with  him  to  offer.  To  add. af- 
ter the  word  "State"  in  the  fourth  line,  the  words 
"  next  preceeding  the  election  " 

Mr.  BRUCE'S  amendment  was  put  and  lost. 

Mr.  RUSSELL  offered  this  as  a  substitute  for 
the  entire  section : 

"  Every  qualified  elector  shall  be  eligible  to  the  office 
of  governor." 

Mr.  RUSSELL  said  that  he  would  leave  every 
other  qualification  to  the  judgment  of  their  con- 
stituents— merely  requiring  the  candidates  for 
governor  to  be  a  citizen  of  the  United  States,  and 
an  elector  of  this  State.  Some  had  proposed  to 
strike  out  the  whole  section,  and  to  leave  it  an  0  ! 
But  that  would  not  answer;  for  that  would 
allow  any  woman  to  come  in  be  she  maid, 
wife,  or  widow ;  or  even  a  minor.  There  must 
be  some  qualification. 

Mr.  JORDAN  wished  to  know  if  the  gentleman 
from  St.  Lawrence  (  RUSSELL.)  meant  to  make  the 
colored  people  who  are  worth  $250,  and  who  are 
now  voters,  eligible  to  the  office  of  Governor  ? 

A  MEMBER— They  are  now  eligible. 

Mr.  RUSSELL— Yes;  if  the  people  so  choose 
to  elect  a  colored  man,  certainly. 

Mr.  JORDAN.  I  understand  the  gentleman. 
That  is  sufficient. 

Mr.  HARRISON  was  sorry  to  see  the  haste  with 
which  this  important  point  was  disposed  of  the 
other  day.  He  wished  the  committee  to  give  it 
more  serious  consideration;  they  were  about  to 
pull  down  the  aggregated  wisdom  of  States ;  the 
place  of  a  Governor's  nativity  ought  certainly  to 
be  considered,  and  so  ought  the  age  of  a  Govern- 
or. The  enquiry  of  the  gentleman  from  Colum- 
bia (JORDAN)  was  a  verv  proper  one.  And  if  we 
passed  upon  this  section  in  the  hasty  and  inconsi 
derate  manner  in  which  we  were  about  to  pass 
upon  it,  he  presumed  that  our  action  would  be 
visited  with  severe  censure  on  the  part  of  our 
constituents.  He  begged  gentlemen,  therefore,  to 
bestow  a  little  consideration  on  a  proposition  so 
uncalled  for.  He  hoped  also  that  we  would  COR  . 


» 


178 


sider  that  we  had  no  charge  from  our  constituents 
to  act  on  this  subject.  No  complaint  had  reached 
him  that  there  was  any  dissatisfaction  as  to  the 
present  qualifications  for  Governor.  These  con- 
siderations and  others  which  he  would  offer  at  a 
more  suitable  time,  he  hoped  would  induce  the 
committee  to  hesitate. 

Mr.  SIMMONS  said  that  he  very  much  doubt- 
ed whether  the  gentleman  from  St.  Lawrence 
(Mr.  RUSSELL)  hacl  carried  out  in  his  own  mind 
the  full  extent  of  his  proposition.  It  would  leave 
this  whole  question  of  the  qualification  for  Gov- 
ernor to  be  controlled  hereafter  by  the  action  of 
Congress.  By  the  law  of  Congress  now  it  is  re- 
quired five  years  for  a  member  to  become  a  citi 
zen  of  the  United  States;  but  suppose  Congress 
in  their  horse  race  speed  and  love  for  foreigners, 
should  reduce  the  time  down  to  3  days,  (and 
that  certainly  could  not  surprise  him  more  than 
many  of  the  acts  which  he  had  known  them  to 
commit  lately,)  then  perhaps  we  might  have  Mr- 
Daniel  O'Connell  for  the  next  Governor. — 
Or  suppose  they  went  farther,  and  allow  the 
privilege  to  non-residents;  allow  of  naturali- 
zation before  the  foreigner  comes  oves  here,  and 
allow  them  all  to  vote  by  proxy  besides,  then 
they  would  be  citizens  ex-gratia,  and  we 
might  also  then  have  a  Governor  ex-gratia 
[laughter] ;  and  then  we  shall  be  in  about  the  same 
fix  that  we  were  in  before  the  Revolution,  as  a  co- 
lony ;  they  would  select  a  Governor  in  England  and 
send  him  over  here  to  rule  us;  they  do  so  even 
still  in  Canada.  We  might  have  O'Connell,  but 
then  he  would  have  to  come  over  here.  He  was 
willing  to  strike  out  the  word  "Native,"  but  he 
insisted  that  a  candidate  ought  tor  reside  at  least 
for  a  certain  period  in  this  State.  He  wanted  an 
equal  rule  that  would  work  fairly  for  all.  Let  all 
who  come  into  to  our  American  world,  either  by 
birth  or  importation — 

Mr.  JORDAN :  Or  construction. 
Mr.  SIMMONS  :  Or  otherwise,"  be  subject  to 
an  equal  rule,   whilst  they   have  the  full  enjoy 
ment  of  our  privileges.     He  would  have  some 
time  fixed  for  a  candidate  to  have  been  here  ;  say 
five,  or  say  three  years  if  you  please,   but  have 
some  fixed  time  ;  and  do  not  leave  this  important 
point  to  be  determined  by   the  mere  caprice  of 
Congress.     For  they  once  made  the  term  of  nat- 
uralization fifteen  years ;  and   then  in   a  time  of 
great  party  excitement  they  brought  it  down  to  one 
year ;  and  now  they  have  come  up  to  five  years 
and  who  knows,  (as  the  sailor  said  when  the  show- 
man blew  him  up  with  gunpowder)  what  under 
heaven  they  would  do  next.     This  was  all  done  by 
the  spiritof  party ;  and  he  (Mr.S.)  thought  it  very 
possible  that  it  might  be  done  again  in  "strong  par- 
ty times."  He  agreed  with  the  general  principle  of 
Mr.  RUSSELL'S  amendment,  but  it  went  altogeth- 
er too  far ;  it  threw  of  all  restraint — all  check 
Now  there  was  no  Constitution  in  the  world  thai 
contained  more  sound  sense  and  true  wisdom  than 
the  Constitution  of  the  United  States;  and  in  tha1 
instrument,  residence,  and  age,  were   considerec 
matters   of  some  moment.     And  whilst  we  ar 
living  in  these  great  days  of  struggling   for  Stat 
Rights,  it  would  not  be  right  or  prudent  to  throw 
away  all  safeguards.    We  ought  not  to  have  a  rav\ 
boy  of  30,  or  even  perhaps  under  30  for  governor 
They  had  one  of ihese  raw  boys  once  for  a  gover 


or,  he  believed  in  Michigan,  and  the  last  time 
hat  he  (Mr.  S.)  had  heard  of  him,  that  raw  boy 
ad  given  pretty  strong  indications  of  his  age.  He 
ould  send  up  as  an  amendment : 

•"  Every  qualified  elector,  who  shall  have  been  five  years 
resident  of  this  state,  shall  be  eligible  to  the  office  of  go- 
ernor." 

Mr.  HARRISON— And  over  30  years  of  age. 

Mr.  SHAVER— said  that  all  restrictions  were 
imputations  on  their  constituents.  He  should 
ote  against  Mr.  SIMMONS'  amendment.  He  dis. 
greed  with  Mr.  HARRISON  ;  to  put  on  these  res- 
rictions  is  to  say  that  our  constituents  are  not 
ualified  to  choose  who  will  best  suit  them  as  ser- 
ants,  and  who  is  most  likely  to  do  their  work  best. 
ie  did  not,  would  not,  believe  that  their  constitu- 
nts  were  at  all  likely  to  rebuke  them  if  the  Con- 
ention  gave  them  the  largest  liberty  in  the  mode 
f  making  a  decision  as  to  who  they  should  select 
or  the  office  of  Governor.  And  as  to  the  remark 
>f  the  gentleman  from  Essex  (Mr.  SIMMONS)  if 
he  time  should  ever  ai  rive  when  it  should  become 
iccessary  to  send  across  the  water  to  select  a  can- 
didate, he  did  not  care  whether  Daniel  U'Connell 
.vas  chosen,  or  Louis  Philippe,  or  even  Queen 
Victoria !  He  was  entirely  satisfied  that  the  people 
would  be  trusted  in  this  matter,  and  therefore  he 
should  vote  for  Mr.  RUSSELL'S  proposition. 

Mr.  WORDEN  said  that  he  hoped'the  Conven- 
ion  in  the  outset  would  have  some  regard  to  the 
elements  which  entered  into  the  Constitution  of 
a  Republican  Democratic  government.  It  wasal- 
eged  and  conceded  by  all,  (he  believed,)  that  the 
jopular  will  was  the  true  and  only  source  and 
buntain  of  power  in  the  government  of  this  coun- 
ry.  And  he  believed  that  this  form  of  government 
s  best  administered,  when  the  popular  will  has 
as  few  restraints  around  it  as  possible.  The  more 
restraints  you  throw  around  the  free  and  full  ex- 
ercise of  the  popular  will,  the  more  of  an  artificial 
machine  you  get,  and  the  less  advantageously  it 
works.  It  is  conceded  on  all  hands  that  the  peo- 
ple of  this  State  are  very  well  qualified  to  elect 
their  Governor  ;  he  believed  that  nobody  pretend- 

d  or  desired  to  restrict  them  in  the  exercise  of 
that  right.  Yet,  whilst  gentlemen  conceded  this, 
they  conceded  it  with  the  qualification  that  though 
competent  to  elect  a  Governor,  they  were  not  com- 
petent to  select  the  man  for  whom  they  were  to 
vote,  and  that  if  this  subject  was  left  open  to  them 
they  perhaps  would  fall  into  some  most  egregious 
error.  Now  he  (Mr.  W.)  would  concede  to  no 
such  doctrine  as  that.  He  believed  that  a  people 
who  were  competent  to  vote  for  a  Governor,  were 
competent  to  select  the  candidate.  And  suppose, 
as  the  gentleman  from  Essex  (Mr.  SIMMONS)  said, 
that  the  people  should  choose  to  select  Daniel  O'- 
Connell for  Governor,  why  should  we  attempt  to 
thrown  any  obstacles  in  the  way  of  their  carrying 
out  their  determination.  If  they  chose  to  strike 
at  the  foundation  of  their  own  government  and 
overturn  it,  no  legislative  or  constitutional  provi- 
sions can  prevent  them.  But  no  such  contingen- 
cy is  likely  ever  to  rise  ;  the  people  would  always 
exercise  a  sound  discretion  in  selecting  a  Gover* 
nor  or  a  candidate;  and  so  long  as  the  latter  was 
a  competent  elector  and  a  citizen  of  the  State, 
that  was  enough  to  ask  of  them.  And  any  attempt 
to  curb  and  check  the  action  of  the  popular  will, 
would  only  injure  the  whole  machinery  of  our  go. 


179 


vernment ;  it  would  invariably  result  in  harm — 
never  in  any  good. 

Mr.  NICHOLAS  said  there  was  a  rule  in  pri- 
vate life  which  it  would  be  as  well  to  observe  here; 
and  that  was  never  to  make  any  unnecessary 
changes.     We  had  now  the  five  year's  residence 
qualification.     It  had   always  worked  well.     He 
had  never  heard  it  objected  to,  and  this  being  the 
case,  why  change.     There  was  no  reason  for  it — 
His  colleague,   (Mr.    WORDEN)   had  spoken   of 
the  great  deference  due  to  the  popular  will. — 
Now  he  had   as  great  a  respect  for  the  clearly 
ascertained     popular     sentiment    and     popular 
will    as    his   colleague,  but    he   thought    there 
was  a  wide    difference    between    public  senti- 
ment thus  defined,  and  mere  popular  clamor. — 
He  would  be  second  to  no  man  on  earth  in  bow- 
ing on  all   occasions  to   the  former ;  and  he  was 
as  free  to  say,  that  on  all  occasions  he  was  deter- 
mined not  to  be  led  by  the  latter.     The  public  sen- 
timent of  the  state,  when  deliberately  formed  on 
any  subject  and  properly  ascertained,  he  consid- 
ered as  imperative  with  him,   as  placing  him  un- 
der obligations  to  defer  to  it  implicitly,  here  and 
on  all  occasions.     But  he  had  never  heard  any 
complaint  as  to   this  qualification   of  residence 
from  any  part  of  the  state.    And  when  gentlemen 
talked  to  us  about  the  obligations  resting  on  mem- 
bers of  a  republican  government,  he  must-  claim 
the   right  to   consider  himself  a  democrat ;  a  re- 
publican elector  of  the  old  democratic  republican 
school  of  '98,  as  he  honestly  believed  himself  to 
be,  in  maintaining  a  due  respect  for  the  rights  of 
the  state.     He  had  no  idea  of  a  mere  stranger 
coming  here — he  cared  not  whether  from   Eng- 
land, Ireland  or  Scotland — or  even  from  a  border- 
ing state,    and    being  a  candidate  for  the  Chief 
Executive    office    of   this    state,— at    any     rate 
not    until  he    had  been    here    long   enough    to 
make   hitnseli   acquainted  with  the  peculiarity  of 
our  government,  with  the  institutions   and  wants 
of  the  Slate,  the  defects  in  our  system,  if  any,  the 
laws  of  the  State,  the  habits  of  the  Slate,  and  with 
the  various  local  interests  of  the  State.     This  kind 
of  knowledge  was  indispensably  necessaiy  to  qua- 
lify a  man  for  a  useful  and   efficient  discharge   of 
Executive  duty.    And  he  thought  it  became  every 
man  who  was  a  republican  in   sentiment,  thus  to 
respect  the  right  of  the  State  of  which   he  was  a 
citizen.     He  could  see  no  good  reason  tor  making 
a  change  here.     Why  not  require  this  now  as  they 
had  always  done.     The   standing   charge  agains't 
all  republican  institutions  was  instability  and  love 
of  change.     And  it  did  appear  to  him  that  where 
any  part  of  one   system    had   worked   well,  for  a 
long  aeries  of  years,  and  the  people  subjected  to  no 
inconvenience  by  it— the   sate   course  was  not  to 
umper   with  it.      In   all   these   cases,   the  only 
safe    course    was    to    avoid    change.      He    was 
ready    and    willing  to  unite  in   making  all   ne. 
issary    changes ;     wherever    evils    existed,   he 
would  remove  them.     But  he  never  would  substi- 
tute mere  experiment  for  experience,  nor  under- 
take to  improve  on  what  had  stood  the  test  of  time 
for  the  mere  sake  of  experimenting ;  he   had  al- 
ways found  that  where  anything  in  a  Constitution 
worked  well    .t  was   best  to   leave   it  alone;  and 
we  had  too   many  and  too  important   interests  in 
charge,  to  venture  on  such  a  path.     We  were  now 
embarking  on  this  work.    This  was  the  incipient 


step  in  it.  And  he  thought  the  admonition  could 
not  be  too  often  inculcated,  that  we  should  in  all 
cases  avoid  unnecessary  changes — avoid  mere  ex- 
periments— and  adhere  to  the  experience  of  the 
past.  He  repeated,  however,  that  a  respect  for 
the  rights  of  the  State,  its  dignity  and  character, 
if  no  other  considerations,  would  induce  him  to 
retain  this  requirement  as  to  residence.  And 
whilst  retaining  this,  he  would  remedy  any  evils 
that  required  it,  but  make  no  unnecessary  or  un- 
tried changes  for  experiment  sake. 

Mr.  PENNIMAN  said  that  he  wished  to  re. 
tain  all  the  qualifications  the  committee  had 
named  in  this  2d  section;  ,  age,  nativity  and  resi- 
dence. He  wished  to  retain  the  word  "native" 
for  more  reasons  than  one.  First  it  was  in  very 
many  of  our  State  Constitutions — it  was  to  be 
found  in  those  of  Maine,  Missouri,  and  virtually 
in  Arkansas.  And  in  every  State  of  the  Union  a 
certain  number  of  years  was  required  as  a  resi- 
dence— 5  and  upwards.  Virginia  virtually  re. 
quired  that  a  Governor  should  be  native  born. — 
Maine  required  a  man  to  be  30  years  old,  and  5 
years  residence  and  to  be  a  native  of  the  U.  S  — 
New  Hampshire  required  30  years  of  age,  and  7 
years  an  inhabitant,  with  a  freehold  propeity 
qualification,  which  he  did  not  believe  in.  He 
wished  the  members  carefully  to  review  these 
Constitutions  before  they  decided  this  important 
point,  or  attacked  the  committee.  The  Consti- 
tution of  New  Jersey  passed  in  1844,  required 
30  years  of  age  and  a  citizenship  of  9  years  ; — 
Delaware,  to  be  30  years  old,  12  years  an  elec- 
tor, and  6  years  a  resident  of  the  State  j  Mary- 
land,  to  be  25  years  of  age,  a  property  qualifica. 
tion  and  5  years  a  resident;  Virginia  required 
30  years  of  age,  to  be  a  native  born  citizen,  or 
,vhat  was  equivalent  to  it,  to  have  been  a  citizen 
at  the  time  of  the  adoption  of  the  Federal  Con- 
stitution, and  5  years  a  resident  of  the  State. — 
In  Ohio,  Arkansas  and  Tennessee,  all  these  qualifi- 
cations were  required,  besides  many  much  more 
stringent  ones.  In  Missouri,  it  was  required  that 
the  candidate  for  Governor  must  be  either  a  native 
born  citizen,  or  to  have  been  a  citizen  of  Louisi- 
ana when  it  was  ceded  to  us  by  France,  and  that 
is  pret'y  nearly  equivalent  to  being  a  native  born. 
So  in  Arkansas,  a  Governor  must  either  be  native 
born,  or  else  he  must  have  been  a  resident  10 
years  of  the  territory  of  Arkansas  before  it  was  a 
Stale.  And  there  was  not  a  State  in  the  Union,  or 
hardly  one,  that  did  not  require  a  long  period  of 
residence  at  least;  and  all  of  them  require  the 
qualification  of  a  certain  age;  and  a  majority  of 
them  what  is  equivalent  to  being  native  born. 
And  yet  we  were  yesterday  attempted  to  be  thrust 
down,  and  driven  from  this;  and  for  what?  Not 
for  the  sake  of  democracy— but  by  the  cry  that 
those  who  advocated  these  doctrines  distrusted  the 
"dear  people,"  the  love  of  the  people,  the  dear  peo- 
ple was  all  that  the  gentlemen  said  influenced 
them.  How  very  considerate.  The  love  of  the 
people — the  dear  people  was  generally  on  men's 
tongues  when  they  wanted  to  gain  some  particular 
end  of  their  own,  or  to  assail  some  one  else  ;  they 
did  that  for  the  people — that  is  they  said  so  ;  but 
whether  they  had  always  acted  in  accordance 
with  that  sentiment  or  not  was  entirely  another 
matter.  He  considered  that  he  had  complete- 
ly shown  by  referring  to  the  Constitution  of  Vir~ 


180 


ginia  that  this  section  in  this  report  did  require 
no  more,  and  not  quite  as  much  in  fact  as  the 
Constitution  of  Virginia ;  and  he  supposed  also  that 
though  he  was  a  native  of  New  Hampshire,  that 
he  could  not  be  considered  a  full-blooded  democrat 
unless  he  belonged  to  Virginia.  (Laughter.)  But 
he  felt  certain  that  whilst  he  held  to  Virginia  doc- 
trines, he  at  the  same  time  took  it  that  not 
all  the  high  priests  of  party  could  unchurch 
him.  And  he  would  here  take  occasion  to 
state  a  case,  in  illustration  of  the  evils  arising  out 
of  matters  that  he  wished  to  avoid  and  guard 
against.  The  political  quarrels  and  fights  in  his 
section  of  the  State,  were  not  between  native  born 
citizens  and  foreigners,  proper ;  but  between  the 
native  citizens  of  different  breeds,  the  descend- 
ants of  the  Dutch  and  the  Yankee  people  ; 
both  parties  being  born  in  this  country.  In  his 
own  town  in  Orleans,  and  one  part  was  set- 
tled by  the  people  of  Dutch  descent,  and  the 
other  by  people  from  New  England ;  these  par- 
ties at  an  election  did  not  struggle  or  fight  upon 
party  grounds ;  but  for  men.  And  they  always 
went  in  a  body  against  each  other.  "  Let  us  put 
up  so  and  so,"  they  would  say,  "  and  then  we 
shall  carry  the  Dutch"  ;  and  sure  enough  they 
always  did  carry  them  on  those  grounds  (laughter) 
And  if  he  was  truly  informed  this  was  the  case  in  a 
great  many  other,  towns  in  the  State.  Now, 
then,  if  they  were  to  strike  cut  the  word  "  Na- 
tive" what  would  be  the  practical  result  of  it? — 
why,  that  each  party  would  bid  for  the  foreign 
vote  by  selecting  a  foreigner  as  a  candidate  for 
Governor, — or  else,  on  the  other  hand,  they 
would  bid  for  native  votes  by  putting  up  a  native 
candidate  proper;  and  the  tendency  of  all  this 
must  be  in  the  highest  degree  injurious  to  our  in- 
stitutions and  to  the  people.  Retain  the  word 
"  Native"  here,  and  then  neither  party  can  play 
at  that  game.  He  had  done  with  that  part  ot  the 
subject ;  but  yet  he  could  not  take  his  seat  with- 
out alluding  to  the  course  which  had  been  taken 
in  the  debate  in  that  House,  in  relation  to  their 
report  and  to  the  way  in  which  poor  committee 
No.  5  had  been  treated.  He  had  felt  the  other 
day,  when  thjs  course  of  warfare  was  going  on 
against  them  a  good  deal  in  the  situation  of  the 
Indian,  "  considerably  troubled  in  his  conscience." 
But  he  got  pretty  well  over  that,  and  now  he  felt 
tolerably  good  natured.  He  did  not  know,  to  be 
sure,  but  what  it  might  all  have  been  considered 
very  courteous  towards  the  committee.  He  did 
not  know  but  that  the  committee  had  been 
treated  decorously — in  fact  quite  well  treat- 
ed. He  was  bound  to  suppose  that  nobody 
had  intended  any  intentional  disrespect — of 
course  not.  (More  laughter.)  The  gentleman  from 
Oneida  (Mr.  KIRKLAND)  opened  the  ball  by  mak- 
ing something  of  an  attack  upon  this  report  of 
poor  committee  No  5,  some  days  back — on  Satur- 
day. But  he  was  merely  the  vanguard,  as  Gen. 
Hull  said.ot  a  much  larger  force.  (Laughter.)  Well 
he  was  followed  by  the  gentleman  from  Orange, 
(Mr. BROWN,)  on  Monday ;  and  he  with  great  power 
and  increased  foice  enlarged  and  amplified  the  plan 
and  mode  of  attack.  (Laughter.)  Then  came  the 
gentleman  from  Essex  (Mr.  SIMMONS,)  and  he 
of  course  without  intending  any  disrespect  to 
us  (laughter)  in  speaking  ot  the  absence  of 
any  written  arguments  or  report  in  the  case, 


said,  that  had  the  committee  written  a  single 
one  in  the  support  of  this^article  it  would  have 
been  a  totally  different  thing  from  what  it  was — 
insinuating  most  distinctly,  that  either  we 
had  never  studied  or  investigated  the  sub- 
ject, or  else  that  there  was  not  ability  enough 
in  the  committee  to  draft  an  article  or  a  re- 
port to  defend  it.  The  gentleman  from  Or- 
ange (Mr,  BROWN,)  came  again,  after  his 
breathing  spell,  with  renewed  energy  to  the  as- 
sault, and  then  round  in  his  turn  came  the  gen- 
tleman from  Oneida  (Mr.  KIRKLAND,)  again, 
and  he  outdid  the  whole,  il  he  did  not  outdo  him- 
self. [More  laughter.]  Last,  but  certainly  not 
least  came  his  friend,  the  venerable  gentleman 
from  Chautauque,  [Mr.  PATTERSON,]  who,  by  the 
by  was  about  half  related  to  him,  as  he  also  came 
from  the  old  Granite  State.  [Laughter.]  And 
that  gentleman  considered  the  matter  entire- 
ly  in  a  charitable  light.  He  in  his  exces. 
sive  charity  presumed  that  we  had  been  too 
idle  or  too  ignorant  to  investigate  the  sub. 
ject  at  all,  and  so  he  threw  the  whole  force 
of  the  blame  upon  the  gentleman  from  New 
York  (Mr.  MORRIS,)  our  chairman — because  he 
did  not  run  his  pen  through  certain  words  in  the 
old  Constitution — supposing  as  a  matter  of 
course  (in  his  charity)  that  all  the  rest  of  the  com- 
mittee could  neither  read  nor  write.  This 
great  mantle  of  charity  of  his  covered  the 
whole  of  them  up !  except  the  chairman.— 
Arid  he  sincerely  hoped  that  when  the  vene- 
rable gentleman  from  Chautauque  (Mr.  PATTER- 
SON) came  to  make  his  report,  that  he  will  not 
need  that  mantle  ot  charity  himself.  (Laugh- 
ter.)  For  then  it  was,  on  hearing  him,  that  he 
(Mr.  P)  exclaimed  in  the  bitterness  of  his  soul,with 
Julius  Caesar  in  the  Senate,  "  And  you,  too,  Bru- 
tus ?"  But  now,  as  we  are  all  dead,  though  not 
quite  buried,  [laughter]  except  my  friend,  our 
chairman,  [here  all  eyes  were  directed  to  Mr. 
MORRIS]  and  the  inmost  recesses  of  the  vitality 
of  his  soul  are  so  deep,  that  you  cannot  kill  him, 
[laughter,]  for  though  he  is  not  dead,  yet  he 
sleepeth ;  [continued  laughter]  and  now,  then, 
as  we  are>  dead,  down,  used  up,  he  (Mr.  P.)  was 
afraid  tha't  the  blame  would  be  thrown  upon  the 
president  for  forming  such  a  committee  as  poor 
No.  5  was,  whilst  it  was  living  (renewed  laughter.) 
And  why  it  may  be  asked,  oh  why  ?  why 
under  Heaven  did  ihe  president  select  all  the  tal- 
ent— all  the  great  lights  of  this  Convention 
and  put  them  on  the  Judiciary  Committee, 
leaving  poor  number  5,  without  any  talent  at 
all.  (laughter.)  It  was  true,  that  we  have 
had  two  lawyers  on  our  committee,  (Laughter) 
but  they  are  nothing  as  it  were— they  are  but  as 
the  small  lights  of  man's  wisdom,  compared  to  Ihe 
towering  the  gigantic  intellects  on  that  Judiciary 
committee,  (much  laughter.)  Now,  he  should  de- 
sire to  .make  a  proposition.  And  his  first 
idea  was  this,  "  Resolved,  that  either  of  those 
gentleman — the  gentleman  from  Essex  (Mr.  SIM- 
MONS,) or  thegentleman  from  Orange(Mr.BROwN) 
or  the  gentleman  from  Oneida  (Mr. KIRKLAND)  be 
and  they  are  hereby  equal  to  any  commiUee  in  this 
Convention  (laughter)  that  they  be  committee  No. 
5  and  that  we  give  up  the  ghost  and  step  out." 
(laughter).  But  he  had  a  request  to  make, 
and  it  is  a  sort  of  a  dying  request,  (laughter.) 


181 


and  it  is  that  the  learned  and  eloquent  gentlemen 
from  Essex  and  from  Orange  (Messrs.  SIMMOJVS 
and  BROWN)  be  and  they  hereby  are,  all  the  com- 
mittees in  the  Convention,  (much  laughter,)  ex- 
cept committee  No  5;  and  that  the  able  and  extra- 
ordinary gentleman  from  Oneida(KiRKLAND)  if  he 
has  got  any  time  to  spare  from  his  most  arduous  du- 
ties on  the  judiciary  shall  constitute  committee 
No.  5,  (laughter,)  and  that  the  gentleman  from 
Chautauque  (Mr.  PATTERSON)  be  the  Convention 
to  prepare  and  submit  every  thing  to  the  dear 
people  himself !  No,  not  exactly  so — he  did  not 
mean  that— but  that  he  be  the  Convention  and 
the  dear  people  altogether  in  his  own  person! 
(Increased  laughter.)  At  any  rate,  he  would  beg 
that  some  way  might  be  provided  by  which  poor 
committee  No.  5  may  be  put  out  of  its  misery  ; 
because  as  a  certain  high  dignitary  once  said, 
"  our  sufferings  is  intolerable."  (Roars  of 
laughter.) 

Mr.  MORRIS  said  that  he  rose  among  other 
things  to  say  that  "  Robin's  alive,  and  alive  he  is 
like  to  be."  If  his  learned  associate  upon  the 
committee,  the  gentleman  from  Orleans  (PENNI- 
MAN,)  had  had  the  experience  which  he  had  had 
— (though  it  was  true  his  years  might  be  more,) — 
he  would  not  have  felt  quite  so  sensitive — but  he 
would  have  known  that  no  disrespect  could  pos- 
sibly have  been  intended  to  them.  He  (Mr. 
MORRIS,)  knew  each  and  all  of  the  gentlemen 
who  had  thus  spoken,  and  he  felt  sure  that  they 
had  intended  no  disrespect— v\Q  censure  whatev- 
er. They  had  merely  used  committee  No.  5,  and 
its  report  for  a  few  days — whether  that  report 
was  under  discussion  or  not — and  his  learned 
associate  would  have  known  that  it  was  much 
the  best  way  to  let  gentlemen  in  this  way 
get  through  their  Bunkum  speeches,  and  so  get 
done  with  them.  (Laughter.)  Gentleman  cer- 
tainly would  uot  knowingly  have  censured  the 
committee;  for  there  was  no  committee  in  the 
whole  Convention  to  whom  gentleman  were  so 
much  indebted  as  to  committee  No.  5,  for  its  re- 
port ;  for  it  had  afforded  them  subjects  for  discus- 
sion tor  several  days,  and  had  enabled  them  thus 
to  get  rid  of  a  great  deal  of  their  superabundant 
patriotism.  And  instead  of  censure,  for  he 
knew  none  was  intended,  the  committee  de- 
served and  ougnt  to  receive  a  vote  ot  thanks  from 
gentlemen;  it  was  merely  the  foot  ball  which  the 
gentlemen  were  kicking  to  kick  themselves  into 
public  notice.  (Much  laughter.)  That  however, 
had  all  passed  away — the  cork  has  been  withdrawn, 
the  effervescence  has  exploded,  and  we  can  now 
settle  down  to  thesober.serious  legitimate  business 
of  the  Convention.  The  question  before  thecommit- 
mittee  was  the  time  specified  in  the  section  that  the 
citizen  should  be  a  resident  of  the  State  before  be- 
coming  eligible  to  the  oflice  of  Governor  wheth- 
er from  thirty  to  five  or  three  years.  The 
section  states  5  year3.  Some  proposed  to 
make  it  3  years,  and  others  proposed  to  strike  out 
the  whole  section.  It  was  said  by  some  here  that 
to  require  any  qualification  in  the  Constitution  for 
a  citizen  to  become  eligible  to  the  office  of  Gov 
ernor,  or  to  trammel  the  people  the  least  in  their 
choice,  was  to  cast  an  imputation  upon  their  in- 
telligence. If  so,  what  is  the  use  of  any  checks 
or  guards  at  all?  Why  have  any  Constitution, 
but  to  provide  them?  Why  have  two  delibera- 


tive bodies  of  the  legislature — one  electee*  for  se- 
veral and  the  other  for  but  one  year?  Why  all 
this,  but  for  checks  and  guards?  Was  not 
this  as  much  an  restriction  ?  It  was  all 
to  enable  the  two  bodies  to  reflect  and  delibe* 
rate  carefully  upon  the  subjects  for  legisla- 
tion. If  he  might  be  allowed  to  imitate  his  learn- 
ed associate  from  Orleans,  (Mr.  PENNIMAN)  and 
use  a  quotation,  he  would  say  that  all  these  checks 
and  guards  were  provided  in  order  to  secure  the 
"  sober  second  thought."  This  was  their 
object;  and  this  was  always  the  object  of  pro- 
visions creating  qualifications  of  age,  &c.,  in 
the  candidate  for  Governor.  Now,  all  the  gentle- 
men  here  would  remember,  he  himself  remember- 
ed some  two  or  three,  (and  others  doubtless  re- 
membered more,)  exciting  elections  arid  political 
campaigns,  when  this  whole  State  was  in  commo* 
tion  from  one  extremity  to  the  other;  during  which 
period  the  people  were  addressed  at  their  meetings 
of  tens  of  thousands,  and  often  were  carried  away 
by  the  burning  eloquence  of  gentlemen  from  other 
States  and  of  the  Union.  He  was  not  driven  to  the 
necessity  of  crossing  the  Atlantic  tor  an  illustra* 
tion  on  this  point,  nor  did  he  desire  to  cross  it — 
that  is,  for  any  such  purpose;  for  gentlemen  who 
did  so  were  always  sure  to  be  charged  on  the  one 
hand  with  reflecting  on  those  citizen  who  were  of 
foreign  birth,  or  on  the  other  with  talking  for 
Buncome,  or  fishing  for  political  capital* 
And  as  neither  of  these  was  his  object, 
he  did  not  desire  to  rest  for  a  moment  under 
any  such  imputation.  But  he  could  only  al- 
lude to  citizens  of  other  States.  It  might  be  (as 
it  had  been)  that  during  some  great  excitement  01 
the  nature  he  had  described,  the  people.enchanted 
and  carried  away  by  impassioned,  fervid  eloquence 
all  around,  would  stand  ready  to  vote  for  the  ora- 
tor for  any  office  whatever.  And  thus  they 
might  elect  a  stranger,  ignorant  of  our  local  laws 
and  institutions,  and  of  the  necessities  and  require- 
ments of  the  people.  Now  it  was  to  guard  against 
all  this — it  was  to  secure  to  our  Governor  the 
proper  local  knowledge,  arid  the  proper  feeling  of 
State  pride  and  interest,  that  he  (Mr.  M.)  deemed 
it  desirable  that  the  Governor  should  be  a  citizen 
— having  resided  amongst  us  a  sufficient  time  to 
become  acquainted  with  our  local  laws  and  insti- 
tutions— to  understand  the  wants  and  necessities 
of  the  people  and  the  proper  remedy  to  relieve 
those  wants.  Was  there  anything  improper  in  all 
this?  Some  will  say  that  there  is  not  exactly  ;but 
that  it  is  a  useless  piovision — that  the  people  will 
nenjr  thus  foolishly  act.  But  though  this  might 
be  true,  and  he  trusted  it  would  always  be  so,  yet 
there  might  arise  again  times  of  great  public  ex- 
citement to  prevent  its  so  being.  We  had  all  seen 
certain  periods  of  temporarily,  but  very  great  pub- 
lic excitement  that  overthrew  all  the  efforts  made 
to  stay  it,  and  that  threatened  to  destroy  an  impor- 
tant and  valuable  feature  in  our  republican  insti- 
tutions. We  had  lately  passed  thro'  such  an  excite- 
ment in  New  York  city  ;  and  he  asked  any  man, 
if,  when  that  excitement  was  at  its  height,  almost 
any  man  could  not  have  been  elected  that  wag  put 
in  nomination.  It  was  not  necessary  to  mention 
what  that  excitement  was,  for  it  occurred  but  a 
very  short  lime  since,  and  could  not  readily  be  for- 
gotton.  It  was  sufficient  to  say  that  it  was  the 
very  excitement  which  almost  laid  Philadelphia 


182 


in  ashts.     And  it  was   to  guard   against  all   this  [Then  we 


can  pass  on,  progressing  in  prosperity 
greatness  and  happiness,  pointing  with  pride  and 


that  the  clause  was  inserted ;  that  he  should  be  a 

citizen — a  five  years  resident— and  thirty  years  I  pleasure  to  the  principles* sustained 'by  thisTcon" 
of  age  ;  some  say  only  three  years;  be  it,  how-  ventipn  as  a  bright  and  shining  example  worthy 
ever,  some  time,  that  he  may  be  amongst  us  of  imitation  by  the  new  and  rising  States.  While 
long  enough  to  know  our  wants,  and  to  become  he  regretted  that  any  allusion  should  be  made,  in 
acquainted  thoroughly  with  the  laws  and  institu-  this  body,  to  party,  country  or  sex,  or  fears  enter- 
tions  of  the  State.  tained  of  popular  sentiment  in  this  enlightened 

Mr.  SWACKHAMER  said  the  arguments  on  \dW>  he  felt  bound  to  say  that  he  had  yet  to  learn 
theside  of  restrictive  qualifications  for  office  were  that  .a11  the  changes  of  parties,  and  revolutions  in 
all  based  upon  the  assumption  that  the  people  Public  opinion,  from  the  promulgation  of  the  De- 
could  not  nor  would  not  judge  properlv.  It  was  a  claration  of  Independence  to  the  present  day,  have 
want  of  confidence  in  the  discrimination  of  the  not  gradually  yet  unerringly  tended  towards  the 
elector  to  select  judiciously  those  who  should  act  P«?manent  establishment  of  perfect  mental,  po- 
as  his  public  servants.  Practically,  it  was  a  mat-  lltlcal  and  SOC™1  freedom  amongst  the  human  race, 
ter  of  little  consequence  to  him"  as  it  regarded  Mr-  SIMMONS  rose  and  disclaimed  that  he 
time  or  age,  but  the  difficulty  was,  that  it  involv-  meant  any  disrespect  to  Mr.  PENNIMAN. 
ed  the  same  principle,  only  not  in  so  obnoxious  a  Mr<  PENNIMANwas  satisfied  no  doubt  he  had 
sense  as  that  of  birth.  It  it  is  your  duty  to  fix  I  misunderstood  him:,  but  at  the  time  he  thought 
the  age  of  an  elective  officer  at  35  years,  w  hy  not  the  reference  to  the  committee  was  rather  ungra- 
say  not  less  than  35  nor  over  40.  Many  believe  C10US-  But  he  s™  clearly  he  was  mistaken, 
this  period  of  life  to  be  the  most  intellectual  and  Mr>  *  ENNEDY  moved  the  committee  rise  and 
vigorous.  The  gentleman  from  Orleans,  (Mr.  I  reP°rt- 
PENNIMAN,)  had  illustrated  his  position  by  allud- 
ing to  a  difficulty  in  his  town  between  the  Dutch 
and  Americans — it  seems  they  some  times  differ 
in  relation  to  public  men  and  measures — is  there 
any  harm  in  this  ?  And  if  there  was,  is  it  not 
perfectly  fair  to  infer  that  it  grows  out  of  the  dis- 


They  rose ;  leave  was  granted  to  sit  again  and 
the  Convention  adjourned. 


REPORT. 

The  committee,  to  which  were  referred  the  subjects  of 
banks  and  currency,  and  a  resolution  to  enquire  into  the 

that 


MONDAY,  (25th  day,)  June  T9. 

Prayer  by  Dr.  WYCKOFF. 

The  PRESIDENT  presented  a  return  from   the 

tinction  sought  to  be  continued  by  gentlemen  on  equity  clerk  ol  the  5th  Circuit  relative  to  the  sale 
the  other  side  of  this  question.  If  gentlemen  are  Ot  infant's  estates,  moneys  received  therefor,  &c  , 
at  times  over-ruled  in  their  political  views,  and  jn  answer  to  the  resolution  of  the  Convention  — 
rejected  by  the  popular  will,  is  it  just  that  they  Referred  to  the  judiciary  commitee. 
should  come  to  this  convention,  and  ask  to  be  pro-  REPORT  FROM  COM.  ON  BANKS  AND  BANKING 
tected  in  their  peculiar  notions,  by  asking  that  Mr.  CAMBRELENG  said  that  the  committee 
restrictions  be  placed  upon  the  lull  and  free  ex  on  banking  and  the  currency,  of  which  he  was 
ercise  of  the  sovereign  will  of  the  people  ?—  chairman,  had  instructed  him  to  make  the  follow- 
The  gentleman  from  Erie  (Mr.  SIMMONS)  has  ex-  hng 
pressed  fears  that  a  great  man  miijht  come  from 
the  other  side  of  the  water  and  secure  his  election  as 
governor  of  this  State;  and  the  gentleman  from  N. 

Y.  (Mr.  MORRIS)  is    apprehensive  that  a    mighty  I  "expediency  of  making  a  constitutional  provision, 
nrafnr  mav  come  here  from  another  StatP    HPPPJVP    the  stockholders  of  banks  shall  be  individually   liable  for 
orator  may  come  here  trom  another  stale,  deceive   thedebts  of  their  respective  corporations,"  respectfully  re- 
the  people  through  the  power  of  his    eloquence,    port  .the  following  resolution  and  amedments: 
and  be  elected  Governor.     Now  he  would  ask  in      Resolved,  That  so  much  of  the  9th  section  of  the  7th 
all  sincerity  whether   either  of  these    gentlemen   article  of  the  Constitution  of  this  State  as  relates  to  the  in- 
have  anyfears  that  they  themselves  would  be  carried    corpon        ol 

away  by  such  influence?  Oh,  no  !  They  have  no  The  Legislature  shall  have  no  power  to  pass  any  law 
aprehensions  of  this  kind.  Then,  he  said  again  granting  special  charters  for  banking  purposes,  but  associ- 
that  their  whole  argument  rested  on  false  provis-  a^ns  lor  such  PurPoses  may  be  formed  under  general 
ions,  and  was  based  upon  the  distrustfulness  of  ^rh'e  legislature  shall  have  no  power  to  authorise,  nor 
the  judgment  of  the  people  in  the  selection  ol  to  pass  auy  law  sanctioning  in  any  manner,  the  suspension 
their  public  agents.  We  have  been  a>ked  for  P1 ~  specie  payments,  by  any  person,  association  or  iucorpo- 
whar  arp  WP  spnf  here  ?  He  answprpd  to  Tramp  ration.  issuing  bank  notes  of  any  description. 
wnac  ar  .  answeri  i  irame  All  individual  bankers,  and  the  stock-holders  in  every 

a  Constitution  tor  the  protection  ot  the  people  in  association  for  banking  purposes,  issuing  bank  notes  or 
all  their  social  and  political  rights,  and  not  to  die-  any  kind  of  paper  credits,  to  circulate  as  money,  hereafter 
tate  to  them  who  they  shall  appoint  to  enact  their  authorized  or  formed,  shall  be  responsible  in  their  individu- 
lawa  anrt  administpr  instirp  unrlpr  thp  orpat  rhar  al  and  Private  capacities  lor  all  debts  and  liabilities  of  eve- 
laws  and  administer  jus  ice,  under  the  great  char-  kind  incurred  by  any  such  banker  or  association, 
ter  that  the  people  through  this  Convention  may  The  Legislature  shall  provide  by  law  for  the  registry  of 
•  establish.  Allusion  has  been  made  to  the  Consti-  all  bills  or  notes  issued  or  put  in  circulation  as  money,  and 
tutions  of  other  Stales  as  fit  examples  for  us  to  shal\  require  for  the  redemption  of  the  same  in  specie, 
follow  Ho  arlmittpH  that  whprpv^>r  the  nrore^  ample  security  by  pledges  ot  property, 
tollow.  He  admitted  tnat  wnerever  tne  preced  iso  individual  banker,  nor  banking  or  other  institution 
ent  set  by  our  sister  States  was  in  accordance  of  any  denomination,  shall,  after  the  year  1S55,  issue  bank 
With  the  present  enlightened  public  opinion,  they  notes  or  any  kind  of  paper  credit  to  circulate  as  money, 
should  be  so  regarded,  but  not  otherwise.  But  except  under  the  provisions  and  upon  tte  conditions  pre- 
why  not  this,  first  of  States,  establish  a  precedent  r^om^a^aft^the^year^So,  all  perpetual  charters 
here  worthy  of  imitation  by  others?  Why  not  granted  for  banking  purposes,  or  to  companies  or  associa- 
engraft  upon  the  new  Constitution,  without  tions  for  any  other  purpose,  and  exercising  banking  pow 
reference  to  other  States,  the  broad  and  deep  ers- shali  be  revoked  and  annulled. 
principles  of  eternal  truth,  justice,  and  equality  ?  I  Mr.  RUSSELL  said  that  he  wished  to  make 


183 


' 


a  few  remarks  upon  ^a  single  point  on  which 
he  might  hereafter  be  found  to  differ  with  the 
committee.  He  considered  it  due  to  himself 
and  to  the  committee,  and  to  the  great  impor- 
tance of  the  subjects  contained  in  this  report, 
and  to  his  constituents,  to  make  this  expla- 
nation at  once,  so  as  to  prevent  any  mistake 
or  misapprehension  that  may  arise  hereafter ;  by 
any  possible  implication  from  his  signature  to 
the  report  which  he  did  not  entirely  concur. 
(The  committee  having  decided  against  written 
arguments  being  presented  as  a  report,  he  had 
prepared  a  statement  of  his  own  views  and  rea- 
sons— a  Sort  of  report  which  he  had  placed  on  the 
desk  before  him,  and  which  he  presented  to  the 
house  in  the  form  of  a  speech.)  He  wished  to 
prevent  possible  misapprehensions  arising  from 
the  submission  of  naked  propositions,  unaccom- 
panied by  any  reasons,  facts  or  arguments,  to  jus- 
tify the  general  scope  of  these  propositions  The 
Convention  had  decided  that  the  reports  of  all 
standing  committees  should  be  made  in  this  man- 
ner. To  this  order  he  yielded  cheerful  acquies- 
ence,  as  every  member  should,  to  every  decision 
of  the  body  fairly  expressed,  whatever  his  own 
opinion  of  the  propriety  might  be.  Upon  the 
great  and  intricate  subject  of  currency  and  bank- 
ing, a  report  embracing  merely  specific  provisions 
of  fundamental  law  for  its  regulation,  without  any 
exposition  of  the  facts  and  principles  upon  which 
such  provisions  are  founded,  and  without  previ- 
ous discussion,  was  a  novel  idea  to  his  mind.  Yet 
it  might  be  all  right.  By  this  course,  however, 
members  of  the  standing  committee  were  indivi- 
dually responsible  for  the  entire  report,  unless  a 
dissent  in  some  form  was  expressed,  because  the 
report  itself  was  nothing  but  the  conclusions  of 
the  committee,  upon  the  whole  subject.  The  re- 
port might  be  able  and  correct  as  a  whole,  yet  if 
any  member  partially  disagreed,  his  dissent 
so  far,  to  avoid  inconsistency,  should  be  ex- 
pressed upon  the  first  opportunity.  With  all 
deference  t-  the  honorable  chairman  and  to 
the  other  members  of  the  committee  who  united 
in  the  report,  and  with  unfeigned  distrust  of  his 
own  opinions,  he  could  yield  not  entire  assent  to 
one  position  contained  in  it.  He  could  not  see 
the  force  or  propriety  of  the  distinction  taken  by 
the  committee,  as  to  personal  responsibility  in  one 
braqch  of  banking  business,  between  two  classes 
of  bankers  performing  the  same  business.  If 
circulating  notes  should  be  made  secure  by  pledg- 
es of  stock  and  other  security,  and  by  superadded 
personal  liability,  he  could  not  see  why  the  per- 
sons issuing  this  doubly  fortified  currency,  should 
be  held  to  more  stringent  constitutional  provi- 
sions relating  to  other  branches  of  banking  busi- 
ness, than  were  numerous  other  banking  associa- 
tions, that  did  riot  issue  the  circulating  medium. 
In  other  words,  if  the  legislature  were  permitted 
to  establish,  upon  the  principle  of  limited  copart- 
nership, associations  for  the  business  of  discount, 
exchange  and  deposit,  merely,  why  not  entrust  to 
the  law-making  power,  the  regulation  of  the  same 
branch  when  transacted  by  others,  who,  in  addi- 
tion, shall  furnish  a  safe  currency,  based  upon 
security  and  unlimited  personal  liability  ?  To 
him,  the  distinction  appeared  invidious  and  un- 
reasonable. The  committee  unanimously  agreed, 
tu-,t  all  persons,  authorized  by  government  to  issue 


paper  for  circulation  as  the  representative  of  coin, 
should,  in  addition  to  other  securities,  be  person- 
ally responsible  for  the  certain  redemption  of 
such  paper.  This  regulation  of  the  currency  was 
emphatically  demanded  by  our  constituents. — 
Concerning  other  branches  of  banking,  as  with 
all  other  kinds  of  business  connected  with  com- 
merce, might  not  the  control  of  government,  if 
at  all  necessary,  be  safely  entrusted  to  legisla- 
tion without  constitutional  restraints  ?  If  con- 
stitutional law  should  enforce  full  personal  lia- 
bility upon  individual  members  of  all  associa- 
tions, who  might  issue  registered  and  secured 
notes  as  money,  for  all  other  contracts  of  asso- 
ciations, and  should  relieve,  from  similar  liabil- 
ities, members  of  other  banking  associations 
engaged  in  the  same  business,  because  they  did 
not  issue  such  notes,  he  feared  this  discrimi- 
nation might  tend  to  throw  the  issue  of  cur- 
rency into  weaker  hands,  who  might  be  willing 
to  hazard  greater  liabilities.  Such  was  the  opin- 
ion of  several  gentlemen  of  much  experience, 
with  whom  he  had  recently  conversed.  Besides, 
it  would  create  an  onerous  preference  in  favor 
of  the  bankers  of  our  commercial  emporium, 
against  those  of  other  sections  of  the  State.  It 
was  well  known,  that  the  amount  of  circulating 
notes  issued  by  the  large  banks  of  New- York 
city  bear  but  a  small  proportion  to  the  amount 
of  their  capital,  discounts  and  exchanges.  The 
notes  of  these  city,  banks  were  not  their  real  cir- 
culation. Persons  obtaining  discounts  from,  and 
selling  exchanges  to  these  banks,and  not  receiving 
their  notes,  but  simply  credits  on  their  books, 
which  were  withdrawn  by  drafts  or  checks  of  the 
depositors.  These  drafts  and  checks,  rather  than 
the  notes  of  the  banks,  were  the  real  circulation 
furnished.  This  currency  was  safe,  because  it 
had  the  individual  responsibility  of  the  drawers, 
as  well  as  the  bank  credits  upon  which  it  was 
based,  and  was  promptly  returned  for  payment, 
in  the  ordinary  course  of  business.  The  New 
York  city  banks  could  easily  withdraw  their  cir- 
lating  nojtes,  and  still  not  materially  diminish 
their  business.  Not  so  with  country  banks. — 
Their  notes  performed  the  office  of  checks  and 
drafts,  in  nine-tenths  of  the  ordinary  business  ex- 
changes performed  through  the  agency  of  these 
banks.  Country  banks,  of  necessity,  must  be 
banks  of  issue,  as  well  as  of  discount  and  deposit. 
These  were  some  of  the  considerations,  which 
induced  in  his  mind  the  opinion,  that  it  is  unwise 
to  insert  in  the  constitution  any  provision  going 
beyond  the  enforcement  of  personal  liability  of  all 
bankers  for  the  redemption  of  their  paper  circu- 
lated as  money.  All  persons,  authorized  by  law 
to  circulate  paper  as  a  substitute  for  coin,  should 
be  held  to  unlimited  responsibility  for  its  redemp- 
tion in  coin.  But  in  his  judgment  every  other 
branch  of  banking  business  should  be  placed  on 
the  same  ground  with  other  commercial  opera- 
tions. These  suggestions  were  thrown  out  with 
great  diffidence,  and  with  most  respectful  defer- 
ence to  the  opinions  of  other  members  of  the  com- 
mittee. It  gave  him  much  pleasure  to  be  able  to 
state,  that  upon  other  question  before  the  com- 
mittee, they  had  been  unanimous  in  conclusions 
expressed  in  the  report,  and  the  chairman,  by 
his  experience,  research,  and  industry,  had  great- 
ly aided  in  the  attainment  of  this  unanimity. — 


184 


With  the  single  exception  before  explained,  he 
concurred  fully  with  every  part  of  the  report. — 
Under  present  impressions)  he  would  amend  the 
report,  in  the  latter  clause  of  the  third  proposed 
amendment,  by  striking  out  the  words,  "  debts 
and  liabilities  of  every  kind  incurred,"  and  by  in- 
serting, the  words,  "  such  notes  on  paper  credits." 
There  was  at  least  a  doubt  of  the  propriety  of  a 
constitutional  provision  enforcing  unequally  lia- 
bilities growing  out  of  the  same  kind  of  business, 
merely  because  one  class  of  persons,  transacting 
the  business,  conduct  also  another  branch  of  bu- 
siness, which  was  made  perfectly  secure  without 
this  controlling  inequality.  It  was  better  to  leave 
the  question  open  to  legislative  action,  than  to 
incorporate  in  the  constitution  a  provision  of 
doubtful  tendency.  He  trusted  when  the  report 
should  go  to  the  committee  of  the  whole,  this 
subject  would  receive  the  attention  of  members 
much  abler  than  himself  to  give  it  appropriate 
discussion. 

Mr.  CAMBRELENG  said  that  he  would  not,  in 
reply  to  the  gentleman  fioin  St.  Lawrence  (Mr. 
RUSSELL)  violate  the  parliamentary  rule,  which 
he  was  very  soiry  to  say,  had  been  repeatedly  vi- 
olated during  the  sitting  of  this  Convention.  We 
have  consumed  one  month  of  our  time  by  a  de- 
parture from  this  rule,  in  discussing  the  merits  of 
a  proposition  whilst  the  question  before  them  was 
only  on  the  subject  of  reference.  He  contended 
that  on  mere  motions  to  refer',  the  merits  of  a 
measure  were  not  under  consideration.  He  did 
not  interrupt  his  associate  on  the  Committee,  be- 
cause from  the  first  he  desired  that  that  gentleman 
should  have  an  opportunity  to  present  and  explain 
his  views  to  the  Convention.  And  he  would  only 
wish  merely  to  answer  one  objection  that  had 
been  urged — not  that  he  desired  to  anticipate  dis- 
cussion on  this  subject,  for  that  was  a  matter 
which  he  would  not  allow  himself  to  be  drawn 
into  at  this  time — but  he  would  merely  make  a 
single  remark.  The  point— and  the  only  point 
which  his  associate  had  made  was  this; — that  he 
would  require  personal  liability  to  the  extent  ot 
the  circulating  notes.  Whereas,  we  (the  com- 
mittee) require,  by  these  amendments,  property 
to  secure  these  notes  !  We  have  endorsed  these 
banks;  they  are  theiefore  government  banks,  and 
they  are  acting  under  the  authority  of  the  Gov. 
ernment,  and  such  being  the  case,  we  thus  make 
them  good  not  only  for  our  own  purposes,  as  re- 
garded the  circulation,  but  we  make  them  good  al- 
so for  the  widows  and  tor  the  orphans  who  place 
their  deposits  in  their  vaults.  There  was  one 
other  point — that  of  inequality,  which  perhaps 
required  also  of  him  a  single  remark.  The  dis- 
tinction, and  the  only  distinction  which  the  com 
mittee  had  recognized,  was  this:  that  banking, 
legitimate  banking  was  a  branch  of  trade, 
with  which  Government  had  nothing  whatever  to 
do,  and  ought  never  to  have  to  do  with,  any  more 
than  any  other  branch  of  legitimate  trade. 
Currency  is  the  business  of  Government,  with 
which  banks  ought  never  to  have  any  thing  to  do 
But  government  having  had  to  do  with  banks,  arid 
given  them  an  authority  and  sanction,  we  are  to 
protect  the  community  against  them — and  their 
infringements.  And  his  committee  proposed,  af- 
ter the  year  1855,  to  put  every  bank  upon  the  same 
footing— they  would  have  no  distinction  between 


the  various  banks  of  the  State;  every  bank  issuing 
currency  (after  1855)  m%st  be  under  the  control 
of  this  law.  And  every  bank  that  does  not  issue 
currency,  may  conduct  its  business  as  it  pleases. 
How  stand  these  matters  now  ?  At  present  there 
is  very  great  inequality.  There  are  24  country 
banks,  conducted  by  individual  bankers,  who  are 
personally  liable  for  all  the  debts  of  their  banks, 
in  every  shape  and  form.  What  a  spectacle  does 
this  present  ?  24  banks  conducted  by  some  of  the 
first  and  best  capitalists  in  the  State — issuing  cii* 
culating  notes,  well  secured,  according  to  the  law, 
and  the  bankers  personally  liable  for  every  kind  of 
debt;  and  here  are  your  privileged  associations, 
which  are  doing  the  same  kind  of  business,  in  is- 
suing circulating  notes,  and  their  conductors  are 
not  personally  liable 

Mr.  WORDEN :— I  would  ask  the  gentleman 
(with  great  deference)  to  tell  me  where  those  24 
banks  are. 

Mr.  CAMBRELENG  :— I  have  a  list  of  them, 
which  I  will  furnish  the  gentleman,  at  the  proper 
time. 

Mr.  WORDEN :  -Do  you  mean  that  it  embraces 
the  Free  Banks  ? 

Mr.  CAMBRELENG:— Yes;  the  Free  Banks. 

Mr.  WORDEN :— Does  not  the  gentleman  know 
that  by  law  the.  stockholders  of  these  banks  are 
not  individually  responsible  ? 

Mr.  CAMBRELENG  :-r-I  have  the  authority  of 
the  Comptroller  and  of  the  law,  to  say  that  they 
are  responsible. 

Mr.  WORDEN  :— Why,  the  statute  expressly 
says  that  associate  bankers  shall  not  be  personally 
liable  for  the  debts. 

Mr.  CAMBRELENG:  The  shareholders  in 
these  joint  slock  associations  are  not  liable,  but  all 
individual  bankers  are;  and  there  is  the  mistake. 
It  will  be  found  at  the  Comptroller's  office  that 
the  notes  all  read  "I  promise  to  pay,"  and  that 
they  are  signed  by  the  individual  banker.  But 
these  amendments  are  not  intended  to  disturb  the 
business  of  any  banking  institution  now  existing. 
After  1855,  any  or  all  of  these  banks  may  with- 
draw if  they  please  ;  they  will  have  the  option  of 
either  withdrawing  their  notes  from  circulation, 
or  of  coming  in  under  this  general  law.  The 
free  banks,  the  joint  stock  banks,  the  safety  fund 
banks,  &c.  &c.  But  he  would  not  make  any  fur. 
iher  remarks  to  anticipate  discussion  j  and  ftnly 
state  that  these  amendments  were  not  intended 
to  disturb  existing  institutions  for  banking — 10 
years  hence,  if  these  were  adopted,  all  banks 
must  determine  whether  they  would  remain  cur- 
rency banks  or  not.  If  they  dp,  they  must  come 
in  under  these  general  piovisions ;  and  every 
bank,  every  individual  banker,  every  association 
and  corporation,  must  stand  upon  the  same  foot- 
ing. Whilst  he  was  up,  he  would  allude  to  the 
remark  of  the  gentleman  from  New-York  (Mr. 
MORRIS)  in  presenting  his  report,  that  every  gen- 
leman  on  that  committee  had  signed  it;  but  he 
very  much  doubted  whether  if  in  the  end,  when 
all  its  provisions  come  to  be  discussed,  all  of  those 
gentlemen  would  be  found  to  agree  with  every 
provision  of  that  report.  The  parliamentary  rule, 
after  all,  was  the  best ;  it  was  that  reports,  though 
considered  as  the  act  of  the  majority  of  a  commit- 
tee, were  hy  no  means  to  be  considered  as  binding 
upon  that  committee.  They  are  not  binding  even 


185 


on  the  majority  of  the  committee  making  them  any 
more  than  they  are  binding  upon  the  Convention; 

.  neb  member,  even  of  the  majority,  is  at  li- 
berty to  reverse  his  opinion  or  his  vote,  if  he  was 

i  inced  that  he  had  come   to  a  wrong  conclu- 
sion.    He  should  certainly  feel  at  liberty  thus  to 

limself,  even  after  he  had  made  a  report  on  a 
subject.  The  report  is  merely  the  result  of  an 
informal  conference;  the  members  of  a  commit- 
•  igether— have  a  consultation,  exchange 
their  views,  deliberate  on  them,  and  agree  to  pre- 
sent a  report.  And  in  the  report  he  had  present- 
h  every  member  did  not  agree  with  eve- 
ry proposition,  yet  each  proposition  had  a  majori- 
ty of  the  members  of  the  committee — there  was  a 
majority  on  the  whole;  and  all  agreed  that  the 
report  should  be  presented ;  which  decision  he 
had  complied  with.  He  would  move  that  there- 
port  be  referred  to  the  committee  of  the  whole 
and  that  it  be  printed. 

Mr.  PATTERSON  said  that  he  did  not  rise  to 
discuss  this  question  in  any  way  or  shape  on  its 
merits  ;  but  he  rose  to  say,  after  hearing  the  re- 
marks of  the  two  gentlemen  who  just  preceded 
him,  and  who  had  spoken  on  both  sides  of  the 
question,  that  he  should  hereafter  feel  it  to  be 
his  duty  to  call  any  gentlemen  to  order,  who 
should  attempt  to  discuss  the  merits  of  any  sub- 
ject upon  a  mere  motion  to  refer.  He  had  not 
done  so  now,  because  after  the  gentleman  from 
St.  Lawrence  had  made  his  sort  of  counter-report 
in  the  form  of  a  speech,  he  thought  it  was  no 
more  than  right  that  the  chairman  of  that  com- 
mittee should  have  an  opportunity  to  reply  to  him, 
as  he  had  been  allowed  to  make  his  remarks  at 
some  length.  But  all  this  was  out  of  order  ;  and 
much  time  would  be  saved  by  adhering  strictly  to 
the  parliamentary  rules  in  the  matter.  We  have 
wasted  too  much  time  in  these  discussions  ;  they 
would  have  plenty  of  opportunity  to  discuss  all 
these  points  in  committee  of  the  whole. 

Mr.  RUSSELL  said,  that  whenever  a  report 
was  made  from  a  committee  of  which  he  was  a 
member,  in  which  he  did  not  concur,  he  should 
claim  it  as  his  right  to  have  his  views  come  be- 
fore the  Convention  in  some  shape,  simultaneous- 
ly with  the  report,  the  conclusions  of  which  he 
did  not  agree  with,  but  to  which  he  impliedly  as- 
sented by  his  signature  thereto,  and  thus  correct 
the  error  that  might  go  abroad.  It  was  necessa- 
ry that  all  should  have  this  right,  in  order  that 
their  subsequent  action  might  not  be  miscon- 
strued into  inconsistency.  And  unless  the  gag 
law  was  to  be  enforced  on  all  of  us  at  once,  he 
\vould  exercise  this  right,  and  he  hoped  every 
other  gentlemen  would  do  the  same  ;  and  if  any 
one  did  so,  even  though  no  one  else  should  stand 
atleman  so  doing,  he  himself  (Mr.  R.) 
would  stand  by  him  and  sustain  him  in  his  right. 
*  TERSON  did  uot  object  to  any  mem- 
l  a  minunty  of  the  committee  rising  in  his 
•place,  and  expressing  his  dissent  trom  any  parts 
of  a  report,  and  s.iy  wherein  they  differed  But 
he  did  and  would  object  to  any  gentleman's  mak- 
ing thai  an  excuse  for  a  full  discussion  of  ihe  mer- 
its of  a  question,  pending  a  mere  motion  to  refer. 
J  only  be  done  with  the  unanimous  consent 

..-•    I  Jou.se. 
Mr.  RUSSELL  said  that  he  thought  certainly  a 


12 


member  may  make  an  oral  report  before  a  motion 
to  refer  was  made. 

Mr.  CHATFIELD:  Certainly,  and  that  would 
have  been  the  time  to  have  made  it. 

Mr.  RUSSELL:  But  the  motion  to  refer  was 
m.ide  bt  fore  I  got  the  floor 

The  PRESIDENT  said  that  he  had  understood 
the  geritli'imm  from  St.  Lawrence  (Mr.  RUSSELL) 
to  have  ask^d  and  obtained  the  unanimous  consent 
of  the  House  previous  to  his  expressing  his  views 
as  he  did. 

Mr.  WORDEN  also  understood  it  to  be  so— that 
Mr  RUSSELL  had  asked  and  obtained  leave  to 
present  his  views,  as  the  majority  did  when  they 
reported.  He  thought  the  gentleman  was  entire, 
ly  in  order;  and  he  did  not  suppose  that  any  com- 
mittee or  any  member,  could  on  a  mere  motion  to 
refer,  discuss  the  merits  ot  the  question  without 
universal  leave  of  the  House. 

Mr.  FLANDERS  moved  to  print  an  extra  num- 
ber— say  800. 

So  ordered,  and  the  report  was  referred  to  com- 
mittee of  the  whole. 

LIMITATION  OF  LANDED  PROPERTY. 

Mr.  WILLARD  offered  the  following  resolu- 
tion, which  was  adopted  : — 

Resolved,  That  it  be  referred  to  committee  number 
eighteen,  "  on  the  erection  and  division  of  estates  in  land," 
to  inquire  whether  the  character  and  permanency  of  our 
institutions  would  not  be  increased  by  multiplying  the 
number  of  freeholders — and  the  expediency  of  forbidding 
all  future  accumulation  of  the  soil  to  exceed  320  acres  per 
man— and  to  provide  some  equitable  mode  for  the  gradual 
reduction  of  the  present  landed  monopolies  as  they  now 
exist. 

RECESS  OF  THE  CONVENTION. 
Mr.  STRONG  submitted  the  following  :— 
Resolved,    That    when  this  Convention    adjourns   on 

Thursday  next,  it  will  adjourn  to  meet  again  on  Tuesday 

the  7th  July. 

Mr.  STRONG  said  that  many  of  the  members 
were  exceedingly  anxious  to  have  this  perplexing 
question  settled  at  once ;  for  a  good  many  of  them 
who  did  not  live  on  the  line  of  the  great  thorough- 
fare— the  Hudson  River — wanted  to  write  home 
to  their  wivds  to  come  and  meet  them.  (Laughter.) 
It  was  very  clear  that  the  Convention  was  to  have 
no  other  adjournment  but  this  one  ;  and  it  was 
also  clear  that  on  Friday  next  there  would  be  very 
few  members  here  in  their  seats — there  would  not 
be  a  quorum  any  how.  He  was  sure  of  that  from 
the  signs  he  saw  ahead ;  and  he  knew  there  would 
not  be  a  quorum  here  on  Monday  either.  And 
it  would  be  very  hard  to  have  the  President  come 
he/e  to  call  this  Convention  to  order  and  then 
have  to  adjourn  it  directly.  He  was  ready  to  stay 
every  day  and  to  go  to  work  ;  he  did  not  want  to 
go  home  ;  but  a  good  many  of  them  did.  And 
he  wanted  to  accommodate  such  as  did  want  go. 
He  was  willing  to  give  all  of  them  a  day  or  two  ; 
but  if  they  would  take  hold  of  this  and  vote  now 
he  would  like  it ;  but  if  they  were  going  to  dis- 
cuss it,  he  would  withdraw  it.  He  did  not  wish 
any  debate;  but  he  wanted  to  know  what  the  con- 
vention was  going  to  do. 

Mr.  MILLER  hoped  he  would  not  withdraw  it. 
He  believed  there  would  be  no  quorum  here  on 
Friday  or  Monday.  Many  gentlemen  had  gone 
home  already,  and  others  were  going  very  fast,— 
And  it  was  bes'  to  pass  the  resolution  at  once. 

Mr,  RICHMOND   wanted  the   resolution  well 


186 


understood  ;  he  wished  to  do  one  of  two  things. — 
If  they  was  to  adjourn  so  as  to  let  all  go  home,  it 
must  be  for  more  days  than  now  named,  Thurs- 
da)  to  Tuesday  ;  but  if  they  would  not  let  all  have 
time  to  go  home;  and  4  d^ys  was  nor  enough  tor 
the  most  distant  man  (who  had  an  equal  right) 
to  go  home — then  he  would  only  vote  to  adjourn 
one  day — from  Friday  to  Monday,  and  no  more 

Mr/CHATFlELD  moved  to  adjourn  from  Fri- 
day to  Tuesday.  Lost  32,  to  59. 

Mr.  CHATFIELD  called  the  yeas  and  nays  on 
Mr.  STRONG'S  resolution,  and  it  was  lost — ayes  50, 
noes  53  : 

AYES — Messrs.  Angel,  Baker,  Bascom,  Bouck,  Brown, 
Bull,  Carebreleng,  Conely,  Cook,  Cornell,  Dana,  Danforth, 
Dodd,  Dubois,  Gerhard,  Graham,  Greene,  Harris,  Hoffman, 
Hotchkiss,  Hunt,  A.  Huntington,  Hutchinson,  Hyde,  Ken- 
nedy, Maim,  McNeil,  Miller,  Nelson,  Nicoll,  O'Conor, 
Hiker,  Shaver,  Shaw,  St.  John,  Stephens,  Strong  Tafl't, 
Tallmadge,  Townsend,  Tuthiil,  Vache.  Van  Schoonho. 
Ten.  Ward,  Warren,  Waterbury,  Wilbeck,  Worden,  Yaw- 
ger,  A.  W.  Young— 50. 

NOES— Messrs.  Ayrault,  F.  F.  Backus,  H.  Backus,  Bow- 
dish,  Brayton,  Brundage,  Burr.  R.  Campbell,  jr.,  Candee, 
Chatfield,  Clark,  Crooker,  Dorlon,  Flanders,  Harrison, 
Hart,  E.  Huntington,  Jordan,  Kernan,  Kingsley,  Kirkland, 
Marvin,  Morris,  Nellis,  Nicholas,  Parish,  Patterson,  Penni- 
man,  Perkins,  Powers,  Bhoades,  Richmond,  Ruggles,Rus. 
sell,  Salisbury,  Sanfcrd,  Sears,  Sheldon,  Shepard,  Simmons, 
Smith,  E.  Spencer,  W.  H.  Spencer,  Stanton,  Stow,  Tag- 
gart,  J.  J.  Taylor,  W.  Taylor,  Wood,  A.  Wright,  W.  B. 
Wright,  J.  Youngs,  Mr.  President— 63. 

SERVICE  OF  MEMBERS. 

Mr.  TALLMADGE  offered  the  following  reso- 
lution : 

Resolved,  Tkat  when  the  members  of  this  Convention 
make  application  lo  the  President  for  certificates  entitling 
them  to  their  compensation,  they  be  severally  required  to 
certify  upon  their  honor,  the  number  of  days  which  they 
have  severally  attended  the  sittings  of  this  body;  and  that 
the  President  deduct  all  the  days  which  any  member  shall 
have  been  absent,  except  such  time  as  he  may  have  been 
detained  in  this  city  and  prevented  attendance  by  sickness. 

Mr.  T.  said  he  would  accompany  this  with  a 
single  remark,  and  then  wish  it  laid  on  the  table 
lor  the  present.  He  had  not  been  away  from  the 
sittings  of  the  Convention  for  one  hour  since  the 
commencement  of  the  session  !  But  last  Monday 
he  found  that  43  members  were  absent ;  and  very 
many  other  times  the  seats  were  half  empty.  And 
he  observed  that  a  majority  of  the  negatives  on 
the  resolution  just  rejected,  were  absent  always 
on  Saturdays  and  Mondays.  He,  in  view  of  this 
fact,  offered  the  resolution,  which  might  lie  on 
the  table,  for  consideration.  A'greed  to. 

The  house  then  went  into  committee   of  the 
whole,  Mr.  CHATFIELD  in  the  chair,  on 
THE  REPORT  ON  THE  EXECUTIVE. 

The  CHAIR  said,  the  question  was  on  the 
amendment  of  Mr.  SIMMONS,  (to  the  substitute 
oHMr.  RUSSELL.)  which  required  the  governor  to 
Jbe  a  five  year's  resident  of  the  state 

Mr.  NICHOLAS  sent  up  an  amendment. 

Tfce  CHAIR  read  it  and  said  it  contained  new 
matter  and  was  not  in  order. 

Mr.  NICHOLAS  said  the  amendment  of  the 
gentleman  from  Essex,  (Mr.  SIMMONS)  was  de- 
signed to  add  after  the  "elector"  the  words, 
4<  who  has  resided  in  the  state  five  years  ;"  his 
own  amendment  was  to  extend  that  to  seven  years. 

The  CHAIR  said  that  his  amendment  went 
further;  if  designed  to  provide  that  the  Governor 
should  be  at  least  30  years  old,  and  reside  here  7 
years.  If  was  not  therefore  now  in  order. 


Reading  of  the  amendment  call&d  foi,  thus: 
The  Governor  shall  not  be^ess  than  thirty  year;  of  age, 
and  shall  have  bten  for  twenty  years  at  least  a  citizen  of 
the  United  States,  and  a  resident  .of  this  state  seven  years 
next  before  his  election,  unless  he  shall  have  been  absent 
during  that  time  on  the  public  business  of  the  United  States 
or  of  this  State. 

Mr.  BASCOM  said  that  he  had  but  a  single  sug- 
gestion to  make;  and  this  was  to  enable  them  to 
dispatch  the  business  of  the  committee  quicker. — 
It  seems  to  have  been  quite  proper  in  the  opinion 
of  theconvention  atone  lime,  and  theopinion  seems 
to  have  been  general  that  there  should  be  some 
general  qualification  for  office— for  officers  of  every 
grade  and  description—for  the  convention  had  refer, 
ed  to  committee  No.4,this  very  subj  ect  of  the  quali  • 
fication  of  officers,  sheriffs,  judges,  and  all  others. 
Now,  he  thought  that  there  was  but  one  single 
line  of  constitutional  provision  necessary  to  em- 
brace this  whole  subject  under  consideration,  and 
every  other  similar  subject  that  could  possibly 
arise.  And  he  should  therefore  vote  against  the 
amendment  now  pending.  This  clause  was  one 
by  which  the  qualification  of  every  officer  to  he 
elected  in  the  State  could  he  defined.  And  he 
wished  a  test  vote  taken  on  the  proposition  of  Mr. 
RUSSELL,  ;  because  this  would  be  the  only  proper 
.rule  to  adopt  in  reference  to  all  officers,  from  go- 
vernor down  to  constable.  We  ought  to  have  a 
rule,  and  this  was  the  best  one  to  define  the  qua- 
lifications of  every  officer.  And  it  was  because 
this  proposition  of  the  gentleman  from  St.  Law- 
rence would  effect  this  object,  that  he  hoped  they 
would  adopt  it ,  and  let  this  be  the  only  qualifi- 
cation for  all.  Perhaps  it  might  have  been  bet- 
|  ter  if  some  general  provision  had  been  reported. 
as  he  believed  was  intended  ;  but  as  it  stood,  he 
would  vote  for  Mr.  Russell's,  as  the  only  qualifi- 
cation necessary  now  for  every  officer. 

Mr.  HUNT  wished  to  have  the  gentleman  from 
Essex  (Mr.  SIMMONS)  withdraw  his  amendment 
for  a  little  while,  so  as  to  enable  him  to  show  how 
they  can  expedite  business  ;  and  to  give  his  views 
as  to  the  propriety  of  taking  up  any  proposition 
whatever. 

The  CHAIR  said  his  remarks  would  be  in  or- 
der without  the  withdrawal. 

Mr.  HUNT  said  that  he  had  wished  Mr.  S.  to 
withdraw  it  for  a  time  at  least,  in  order  that  a  vote 
may  be  taken  as  to  the  propriety  of  our  dictating 
in  any  way  to  the  electors  of  the  state  what  class 
of  persons  they  shall  elect  to  office;  for  if  we  have  no 
authority  in  the  premises,  as  he  thought  we  have 
not,  it  was  idle  for  us  to  waste  time  in  discussing 
how  we  would  exercise  such  authority  if  we  had 
it.  He  stated  this  objection  to  the  second  section 
of  the  report  of  committee  No.  five,  soon  after  it 
was  presented,  to  some  of  his  colleagues  in  whose 
judgment  he  had  great  confidence,  and  they  ad- 
mitted its  force.  He  stated,  as  his  view,  that  thi^ 
Convention  should  regard  itself  in  the  light  of  an 
attorney,  acting  for  its  client  the  people  of  the 
state,  and  that  the  constitution  we  were  drafting 
should  be  regarded  as  a  simple  power  of  attorney, 
or  code  of  instructions,  to  be  finally  executed  by 
our  client  or  principal,  for  the  direction  of  such 
agents  as  they  might  hereafter  employ  to  transact 
the  business  of  government  in  their  behalf.  The 
great  questions  we  have  to  consider  were — What 
offices  shall  be  created  ?  How  shall  the  people 
designate  their  officers  or  agents  ?  What  powers 


187 


be  delegated  to  them,  and  what  specifically 
withheld?  It  is  proper  for  the  people  to  prescribe 
the  duties  and  limit  the  power  of  their  deputies, 
for  otherwise  their  deputies  would  become  their 
masters ;  but  they  cannot  limit  their  own  discre- 
tion in  relation  to  the  choice  of  their  own  agents 
without  forfeiting  their  sovereignty.  Who,  in 
framing  a  power  of  attorney  for  an  agent,  would 
ever  think  of  inserting  any  clause  limiting  his 
own  powers— of  tying  his  own  hands  in  order  to 
keep  himself  from  picking  his  own  pocket?  Now 
as  our  Governor  is  to  be  chosen  not  by  an  elector- 
al college,  nor  by  deputies,  but  by  the  people  in 
person,  why  say  a  word  about  his  qualifications 
here  ?  He  admitted  there  were  many  qualifications 
which  it  was  important  that  our  Governor  should 
always  possess,  for  instance : — he  should  be  a 
white  man — he  should  be  not  only  a  native  citi- 
zen, hut  a  native  of  Greene  county — for,  to  quote 
the  great  argument  of  the  natives,  there  are  enough 
competent  Greene  county  men  in  the  State  to  fill 
all  the  offices  of  the  State.  He  should  be  a  good 
Jeflersonian — not  less  than  6  feet  2  in  height — able 
to  read  and  write  and  say  the  Lord's  prayer,  the 
creed  and  the  ten  commandments — in  a  word,  he 
would  insist  on  all  the  qualifications  he  possessed 
himself;  but  inasmuch  as  he  doubted  whether  the 
people  of  the  state  had  constituted  him  their  guar- 
dian, he  dared  not  usurp  that  office,  and  therefore 
presented  the  above  qualifications,  not  in  the  light 
of  sovereign  mandates  which  they  must  obey , but  as 
the  sincere  ad  vice  of  a  disinterested  friend  Enter- 
taining these  views,  he  desired,  that  we  should 
first  decide  whether  we  have  any  right  to  "  inter- 
fere with  the  freedom  of  elections,"  and  then  it 
may  be  in  order  to  determine  how  far  our  iater- 
ference  shall  extend.  He  would  not  waste  a  whole 
week  in  arguing  what  restrictions  upon  the  free 
choice  of  electors  should  be  imposed,  while  cer- 
tain that  we  have  no  right  to  impose  any  restric- 
tions at  all.  Every  moment  spent  in  discussing 
propositions  upon  which  we  cannot  act,  is  a  mo- 
ment lost ;  and  if  we  thus  waste  our  moments 
now,  we  may  be  compelled  to  act  hastily  here 
after  upon  those  great  matters  which  come  with- 
in our  legitimate  sphere  of  duty. 

Mr.  CROOKER  wished  the  gentleman  from 
New-York,  (Mr.  HUNT)  would  at  least  cut  ofl 
*ix  inches  of  his  qualifications,  for  he  himself  pos- 
sessed all  the  other  requisites,  and  he  did  not 
know  but  that  he  might  be  a  candidate  for  gover- 
nor some  day  himself. — (Laughter,)  But  that 
six  inches  would  cut  him  entirely  off  from  a 
look. 

Mr.  JORDAN  said  that  he  thought  that  the 
time  had  now  come  when  it  would  be  well  for 
the  committee  to  settle  a  principle  as  to  the  fu- 
ture mode  of  proceeding  with  their  business. — 
And  he  wished  to  call  out  from  that  Convention 
an  expression  of  opinion,  as  to  whether  they  in- 
tended to  have  any  thing  left  of  the  old  Constitu- 
tion, or  whether  they  intended  to  confine  them- 
selves to  the  amending  of  those  parts  of  it,  which 
have  been  found  inconvenient  in  practice,  and  re- 
specting which,  the  people  of  the  State  had  been 
loudly  calling  everywhere  to  have  the  requisite 
reforms  applied.  He  thought  that  this  was 
as  favorable  an  opportunity  to  call  out  such 
an  expression  as  any  other ;  now,  just  as  they  were 
«taiting  upon  the  regular,  substantial  business  o' 


he  Convention .  He  had  thought  that  the  members 
lad  come,  or  were  sent  there,  for  the  purpose  of 
examining  the  old  constitution  ;  to  find  out  and 
correct  in  it  that  which  was  defective  in  its  ope- 
ration— to  remedy  the  evils  and  abuses  that  had 
grown  up  under  it;  that  is,  where  there  were 
evils  existing  of  which  their  constituents  had  com- 
jlained  ;  and  that  they  had  not  came  there  for  the 
)urpose  of  joining  in  any  attempt  to  correct  or 
alter  the  old  constitution  where  it  operated  to 
heir  satisfaction,  respecting  which,  there  was  no 
complaint  whatever,  and  no  voice  raised,  not  even 
a  murmur  through  the  whole  community,  in  re- 
gard to  its  operation.  And  he  submitted  to  the 
Convention  that  where  no  inconvenience  had  aris- 
en from  a  provision  of  the  constitution  — as  none 
iad  from  this  before  them — (the  provision  of  quali- 
fication requiring  a  candidate  for  the  office  of 

overnor  to  have  resided  in  thisSta'e  for  5  years,) 
that  it  was  not  prudent  to  alter  it.  Not  a  voice 
had  been  raised,  not  a  murmur  heard  from  the  peo- 

le  against  the  practical  operation  of  that  provision 
of  the  constitution  as  it  now  stands;  and  therefore  a 
vote  upon  thequesiion  then  before  them,  would  set. 
lie  the  question  he  had  desired  to  see  settled — that 
is,  the  disposition  of  the  Convention  in  these  par- 
ticulars. It  would  settle  as  to  whether  they  had 
come  there  to  repair  and  correct  the  defects  in  that 
instrument,  or  to  tear  up  the  whole  fabric  by  the 
roots,  and  make  something  entirely  new  in  its 
place — quite  perfect  perhaps  in  their  judgment;  or 
asp  erfect  as  human  wisdom  and  ingenuity  could 
make  it.  Now  he  did  not  pretend  in  this  matter 
to  be  any  wiser  than  others — his  predecessors  ; 
except  so  far  as  the  lights  of  experience  had  given 
him  that  wisdom.  But  even  as  to  the  matter  of 
theory — as  a  matter  of  speculation,  he  should  feel 
disposed  to  follow  or  defer  to  those  great  men 
who  have  gone  before  us  in  the  establishment 
of  the  fundamental  law,  as  well  for  the  great 
State  of  New- York,  as  for  the  United  States  and 
all  the  other  States  of  the  Union.  Now  we  have 
in  the  first  place  the  Constitution  of  the  U.  S. ; 
an  instrument  prepared  by  some  of  the  best  and 
wisest  men  of  the  nation.  And  we  have  in  that 
instrument  a  provision  requiring  the  candidate 
for  the  Presidency  to  be  at  least  35  years  of  age ; 
that  is  the  qualification  required  there,  and  he 
would  ask  wherein  the  experience  of  any  one  had 
shown  this  to  be  improper  or  unnecessary  ? — 
What  defects  have  ever  been  discovered  in  the 
working  of  this  provision  ?  What  voice  through- 
out the  land  had  been  raised  against  it. — 
None.  Is  it  not  of  itself  a  wise  provision 
that  they  should  have  experience  'as  well  as  ca- 
pacity. He  was  willing  to  admit  that  there 
were  many  gentlemen  to  be  found  under  30  years 
of  age  who  were  capable  of  governing  this  great 
State ;  but  he  had  yet  to  learn  that  if  a  gentleman 
who  had  capacity  and  ability  sufficient  to  fit  him 
for  the  office  of  Governor  under  30,  that  he  would 
not  be  improved  by  10  years  more  experience  and 
information.  A  friend  near  by  had  put  into 
his  hands  a  sort  of  statistical  view  of  the  Constitu- 
tions of  the  varioussfa'es  of  the  Union;  and  by  this 
he  found  that  there  was  not  an  instance,  except 
Rhode  Island,  (and  not  even  in  that)  or  except 
Connecticut  (and  not  even  in  that)  where  there 
was  not  some  provision  of  this  nature;  where  a 
certain  term  of  residence  was  not  required,  in  Con- 


188 


necticut  the  candidate  for  Governor  must  have 
gained  a  settlement ;  and  we  have  mly  to  refer  to 
the  Statute  law  of  that  State  to  learn  what  time 
is  necessary  for  a  man  to  gain  a  settlement  there 
[It  is  one  year.]  In  two  States  of  the  Union, 
Missouri  and  Michigan,  the  term  of  residence  is 
two  years.  In  four  States,  Alabama,  Ohio,  Mis- 
souri and  Vermonnt,  it  is  four  years.  In  seven 
States,  Maine,  Maryland,  Virginia,  North  Caroli- 
na, Indiana,  Illinois  and  New  York,  it  is  five 
years.  In  three  States,  Delaware,  Kentucky  and 
Louisiana,  it  is  six  years.  In  four  States,  Mas- 
sachusetts, New  Jersey,  (under  the  new  Consti- 
tution,) Tennessee  and  New  Hampshire,  it  is 
seven  years.  In  two  States,  South  Carolina  and 
Arkansas,  it  is  ten  years.  In  one  State,  Georgia, 
it  is  12  years.  Thus  under  the  Constitution  of 
the  United  States  and  under  the  Constitutions  of 
over  twenty  States  of  the  Union,  they  have  restric- 
tions as  to  age  ;  and  in  many  of  them  they  have 
restrictions  as  to  a  term  of  residence  longer  than 
is  required  by  the  present  Constitution  of  this 
State ;  and  in  all  the  other  States  there  is  a  re- 
striction as  to  some  term  of  residence.  What  ne- 
cessity then  is  there  for  us  to  change  this  proper 
qualification  unless  it  be  for  the  purpose  of  launch- 
ing out  into  the  bounless  field  of  speculation  and 
conjecture  ?  Where  we  find  things  in  the  Consti- 
tutions good  as  they  now  stand,  it  was  wise  to 
leave  them  so.  We  shall  have  enough  to  do 
in  the  great  work  before  us— the  revision  and 
correction  of  the  Constitution,  in  those  particu- 
lars where  there  are  defects  in  its  operation,  or 
where  it  is  inadequate  to  the  advancement  of  pub- 
lic business,and  so  to  devise  it  as  may  best  tend  for 
the  prosperity  of  the  state.  We  have  enough  to 
do  to  consume  all  the  time  that  is  left  us  between 
now  and  the  next  election,  (when  the  people  will 
be  called  upon  to  vote  un  these  amendments,)  in 
correcting  these  real  defects,  without  going  into 
long  debates,  or  indulging  protracted  discussions, 
such  as  this  one  we  are  now  in,  and  which,  if 
he  was  not  in  error,  had  already  lasted  sever- 
al days,  and  all  arisen  on  the  subject  of 
proposed  alteration  of  a  part  of  the  Consti- 
tution in  relation  to  which  there  had  never 
been  a  complaint;  against  which  there  had 
never  been  a  voice  raised,  or  a  murmer  heard; 
and  about  which  they  had  not  been  sent  there  by 
the  people  to  trouble  themselves,  or  to  alter.  Now 
it  was  said  by  some  gentlemen,  that  the  Conven 
tion  possessed  no  right  to  restrict  the  people  in 
any  way  in  their  choice  of  a  Governor.  He  did 
not  desire  to  restrict  the  people  in  the  least,  in 
this  respect.  He  did  not  intend  they  should  be 
restricted  in  the  exercise  of  any  of  their  rights  of 
sovereignty.  And  it  was  not  the  sovereignty  of 
the  people  or  any  of  their  sovereign  powers  that 
they  were  expected  to  restrict.  But  still  the  peo- 
ple had  a  perfect  right  to  restrict  themselves — the 
people  have  a  right  to  enter  into  a  social  compact 
— a  general  bargain,  it  you  like — with  each  other ; 
and  they  have  sent  us  heie  to  do  that  business — 
to  draw  up  that  bargain,  or  compact,  for  them 
to  settle  those  rules  of  action  and  govern- 
ment by  which  the  people  agree  to  govern 
themselves  hereafter.  For  if  we  did  not  come 
here  for  that  purpose,  we  came  here  for  noth- 
ing. He  thought  he  was  not  quite  as  ultra 
a  democrat  as  some  of  the  gentlemen  around  him  ; 


but  still  he  thought  that  he  had  quite  enough  of 
it  in  his  composition;  and*he  was  opposed  to  the 
imposition  of  any  restraints  or  restrictions  upon 
the  sovereignty  of  the  people  of  the  State,  except 
on  those  points,  or  on  such  subjects,  and  under 
such  contingencies,  where  it  became  necessary  to 
impose  restrictions  and  rules  of  action  which  must 
govern  all  parties  in  the  Union,  to  prevent  all 
from  running  into  anarchy  and  confusion.  Na- 
ture has  ever  been  governed  by  her  laws;  and  ev- 
er will  continne  to  be  so  governed.  And  the 
sovereign  people  must  be  governed  by  their 
laws  and  ever  required  to  abide  by  them;  "or  else 
there  is  no  use  in  having  any  Constitution  at  all. 
Gentlemen  have  said  here  that  we  must  not  restrict 
the  people  in  their  acts— must  not  restrain  their 
right  of  sovereignty,  by  saying  that  a  candidate 
for  the  Governorship  shall  not  be  elligible  unless 
he  is  at  least  30  years  of  age.  But  if  this  be  so, 
what  right  have  we  to  say  that  there  shall  be  any 
Governor  at  all  ?  What  right  have  we  to  say 
that  there  shall  not  be  two  Governors  ?  or  to  say 
that  there  shall  not  be  10  Governors  ?  if  the  so- 
vereign people  shall  so  will  it  to  be  ?  Or  what 
right  have  we  to  say  that  there  shall  not  be  two 
or  ten  Secretaries  of  State  ?  or  two  or  ten  Comp- 
trollers of  the  State  ?  or  two  or  ten  Surveyors 
General  ?  What  right  have  we  to  say  that  the 
sovereign  people,  in  the  exercise  of  their  power, 
shall  not  elect  a  dozen  of  each  of  these  officers,  if 
they  should  so  choose  ?  Because  the  people  sent 
them  here  for  the  very  purpese  of  preventing 
this ;  they  sent  them  there  to  prescribe  proper 
rules  of  action  for  them,  and  for  themselves.  And 
to  make  the  proper  provisions  in  the  Constitution 
is  the  only  way  that  this  can  be  prevented  ;  for 
we  are  ourselves  the  sovereign  people,  represent- 
ing them  in  the  only  way  they  can  be  represent- 
ed, to  do  that  work  for  ourselves  and  for  them 
which  they  could  not  come  here  to  do  for  them- 
selves. And  the  doctrines  of  the  gentleman  that 
he  had  referred  to,  who  were  against  any  restric- 
tions regarding  the  age  of  the  Governor,  certainly 
appeared  to  go  that  entire  length.  If  their  doc- 
trine was  correct,  (as  they  had  so  strenuously 
contended)  what  right  had  we  to  say  that  a  judge 
of  the  Supreme  Court  should  hold  no  other  office, 
if  the  sovereign  people  should  will  it  to  be  ? — 
What  right  have  we  to  say  that  an  officer  of  the  ge- 
neral government  of  this  State  shall  hold  no  other 
office,  if  the  sovereign  people  should  so  will  it. — 
What  right  have  we  to  make  provision  for  the  ap. 
pointment  of  military  officers,  or  say  that  military 
officers  shall  not  be  selected  and  elected  by  the 
military  themselves,  if  the  sovereign  people  should 
so  decide,  why  bind  the  people  to  that  or  those 
points?  >Vhy  bind  them  in  hny  respect  ?  What 
right  have  we  to  say  that  the  comn.on  school 
fund  shall  not  be  diverted  to  any  other  purpose  if 
the  sovereign  people  choose  to  put  their  hands 
into  the  treasury  and  to  scatter  it  to  the  four  winds 
of  Heaven  ?  Where  is  this  ultra  democracy  to 
stop  ?  What  right  have  we  to  say  what  shall  or 
shall  not  be  done  with  the  Canal  Fund,  with  any 
other  fund,  or  any  other  matter,  that  the  sovereign 
people  choose  to  take  in  their  own  hands  to  regu- 
late and  dispose  of.  What  is  to  become  of  any 
of  the  funds,  or  institutions  of  the  State,  or  any  1 
thing  else  in  it,  unless  the  sovereign  people  are 
to  be  restrained  by  the  committee.  How  is  it  that 


189 


any  of  the  present  provisions  of  it  are  carried  out. 
Jt  is  because  the  sovereign  people  are   restrained 
by  the   Constitution  and  laws  formed   under  it. 
They  are  restricted  to  the  exercise  of  certain  pow. 
ers,  not  by  any  laws,  rules  or   restrain's   that  we 
have,  or  that  we  wish  to  impose  upon  them  •  bu 
restrained  by  their  own  tree  consent  and  compact 
and  by  those  laws  they  themselves  have  prescrib- 
ed for  themselves,  in  older  to  prevent  that  confu- 
sion and  -anarchy  that    would   otherwise  ensue. — 
He  was  not  in  that  Convention  to  be  frightened  by 
anything  that  was  got  up  there,  like  the  idea  put 
forth  by  many,  that  they   were  about    to  circum- 
scribe or  abridge  the  people's  sovereign  power. — 
They  had  come  there,  simply  for  the  purpose  (as 
the  sovereign  people)  to  prescribe  a    certain    rule 
of  action,  that  they  will  all  consent  to  be  govern- 
ed by,  such  a  rule  as  that  in  times  of  popular  ex- 
citement would  not  allow  a  bare  numerical  majority 
to  trample  upon  the  rights  of  the  minority,  or  up- 
on the  government  itself.     It  might  not,  or  would 
not-- perhaps  sound  very  pleasing  to  t  he  ears  of  some 
ot  the  trentlemen  in  that  convention  to  saythat  there 
were  times  of  excitement  when  the  people  them- 
selves  are  not  to  be  trusted — when  the  halls  of  leg- 
islation become  corrupt     That  there  may  be  such 
times  all  experience,  history   and  common  sense 
had  taught  us,  and  hence   it  was  not  only  proper 
for  us,  as  a  mere  rule  of  conduct  for  the  people,  to 
adopt  a  Constitution  by  which  they  should  be  go- 
verned, but  m  his  judgment,  it  was  lor  this  peo. 
pie,  in  their  cool   moments  of  sober  deliberation, 
when  they   had  no  other    matters  to  excite  their 
attention,  and  no  perplexing  subjects  of  conten- 
tion, to  determine  the  rule  by  which  they  them- 
selves should  be  governed.     He  was  disposed  up- 
on  this  occasion,  as  the  first   opportunity  he  had 
had,  to  record  his  vote  in  favor  of  the  amendment. 
He  understood  the  resolution  proposed  by  the  gen- 
tleman from    St.  Lawrence,  was  to  strike  out   all 
qualification  as  to  age.     He  understood  that  the 
amendment  proposed  to  restore  the  provision  ot  the 
old  constitution  which  required  a  five  years   resi- 
dence.    He  could  see  noshing  in  that   to   operate 
mischievously.     He  could  see  nothing    but   what 
may  and  probably  will   operate    benefically.     He 
could  see  nothing  in    the  idea   which  had   been 
started  of  stripping  the  people  ot  sovereign  pow- 
er, to  divert  him  trom  supporting  the  amendment. 
And  he  saw  much  in  it  to  settle  a  principle  of  ac- 
tion and  call  out  the  sentiment  ot  the  Convention 
as  to  whether  they  were  determined  to  lay  a  ruth- 
less, wanton  hand  on  every  portion  of  the  constitu- 
tion, and  revise  and  alter  it  after   the   fashion    of 
those   Utopian   gentlemen  who   imagined   them- 
selves so  much  wiser    than  their   ancestors,    and 
that  without  the   aid  of  experience;  or  whether 
they  would  let  well  enough  alone— whether    they 
would  pass  on  to  the  business  of   the  Convention, 
and  exercise  the  power   delegated    to  them,   and 
when  they  had  done  that,  separate  and   go  home 
to  their  consiituents.     He  hoped  the  sentiment  of 
the  Convention  would  now  be  called  out  upon  that 
subject.     He  would  go  with    any   gentleman    any 
length  warranted  by  Experience  either  here  or  any 
other  .state  ;  or  by  any  well  digested  or  well  con- 
sidered theory,  where  there  were  detects  in    the 
constitution  and  no  experience  to  teach  us  a  reme- 
Hul  he  was  unwilling  to  go  into  any    project 
to  alter  this  instrument  under  which  we   have  so 


long  and  he  might  say,  so  happily  and  so  prosper- 
ously  lived,  where  no  mischief  arises,  and  where 
no  voice  was  raised  for  its  alteration— and 
where  in  his  judgment  it  was  unwise  to  do  it. 
Mr.  W.  TAYLOR  said  that  he  was  inclined  to 
favor  the  suggestion  of  the  honorable  gentleman 
from  Ontario,  made  upon  this  subject  when  it  was 
last  up  for  discussion,  that  those  parts  of  the  con- 
stitution about  which  there  had  been  no  com- 
plaint, in  which  there  was  no  evil  experienced 
or  inconvenience  felt,  had  better  be  left  undis- 
turbed. That  doctrine  had  now  been  advocated 
by  the  gentleman  from  Columbia,  (Mr.  JORDAN) 
but  he  must  add  that  when  a  question  is  brought 
up  requiring  his  vote,  if  he  found  involved  in  it 
a  principle  which  will  be  violated  by  the  appli- 
cation of  the  rule,  then  the  rule  must  give  way 
for  the  security  of  the  principle.  And  so  he 
would  say  if  it  were  a  question  of  expediency. 
If  it  was  more  expedient  to  adopt  an  amendment 
than  to  violate  the  rule,  he  would  adopt  the 
amendment  and  put  the  rule  aside.  He  believed 
the  Convention  had  acted  on  that  principle  al- 
ready. There  was  no  complaint,  no  evils  expe- 
rienced from  the  word  "  native,"  which  is  in  the 
Constitution,  and  he  presumed  his  friends  from 
Columbia  and  Ontario  had  set  aside  the  rule  if 
there  was  not  a  principle  involved,  and  for  the  con- 
sideration of  expediency,  they  had  voted  to  strike 
out — to  amend  the  Constitution  in  that  particu- 
lar. Now  it  came  to  be  considered  whether  there 
was  a  question  of  principle  involved,  or  whether 
it  was  most  expedient  to  adopt  the  amendment  of 
the  gentleman  from  St.  Lawrence.  That  propo- 
sition did  not  go,  as  was  suggested  by  the  ger.tle- 
man  from  Columbia,  to  the  removal  of  all  restric- 
tions with  regard  to  residence.  It  proposed  that 
L  person,  to  be  eligible  for  the  office  of  governor, 
hall  be  a  qualified  voter  in  this  State,  and  if  we 
did  not  alter  the  present  provision  of  the  Consti- 
tution in  that  respect,  he  must  reside  here  one 
year,  and  must  be  a  citizen  of  the  United  States. 
Now  he  submitted,  if  a  residence  of  one  year,  was 
not  sufficient  for  any  individual  who  had  had^  op- 
portunities of  making  his  talents  and  qualifications 
cnown — who  by  the  people  of  the  State  of  New 
York  might  be  supposed  to  understand  their  in- 
stitutions and  laws,  and  who  had  made  himself  so 
conspicuous  by  his  talents  or  in  some  other  way 
as  to  recommend  himself  to  the  entire  confidence 
of  the  majority  of  the  people  of  the  State— if  it 
was  not  safe  and  wise  to  leave  to  the  people  the 
broadest  range  of  latitude  in  the  selection  of  their 
candidates.  It  was  a  cherished  principle  with 
he  people  that  the  broadest  latitude  of  political 
action  should  be  allowed,  consistent  with  individ- 
ual security  and  the  public  welfare— that  in  the 
selection  of  candidates  for  office  they  should  have 
the  broadest  range,  and  he  apprehended  no  dan- 
ger, nor  any  evil  could  grow  out  of  the  adoption 
>f  such  a  provision  as  the  one  under  considera- 
iori.  The  State  of  Rhode  Island  had  framed  a 
Constitution  within  the  last  three  or  four  years — 
State  that  has  hitherto  been  regarded  as  not  very 
democratic  in  her  views  ;  but  she  has  been  eri- 
ightened — she  has  received  an  impulse  in  the 
-ause  of  democracy,  and  she  has  adopted  in  her 
Constitution  the  very  proposition  which  the  gen- 
leman  from  St.  Lawrence  had  proposed.  If  a  per-, 
son  is  a  qualified  voter  for  the  office  for  which  he 


190 


is  <i  candidate,  he  should  be  eligible  to  the  office  it 
self.  With  regard  to  the  danger  to  grow  out  of  any 
excitement,  as  the  gentleman  from  New  York  sup- 
posed, from  a  person  coming  into  the  State  pos- 
sessing such  rare  powers  of  eloquence  as  to  car- 
ry away  the  heads  and  hearts  of  the  people  in  a 
moment  of  political  excitement,  he  must  confess 
he  had  no  fear  of  any  such  result.  And  as  to  the 
taking  up  of  an  utter  stranger  who  might  come 
amongst  them,  because  he  swayed  their  judgments 
on  some  political  subject — if  in  the  dense  popula- 
tion of  New  York  such  a  thing  could  possibly 
happen — if  they  should  become  so  excited  under 
the  glowing  powers  of  oratory  of  some  man,  as  to 
desire  to  place  him  in  the  highest  office  within 
their  gift,  it  would  be  but  a  momentary  impulse. 
A  moment's  cool  reflection  would  make  it  ah  right 
with  them.  But  if  not,  it  would  be  corrected  by 
the  staid  and  scattered  popula'ion  of  the  country  ; 
the  sober,  industrious,  thinking  mechanics  and 
farmers,  who  would  not  be  thus  swayed.  If,  there- 
fore, New  York  got  wrong,  the  country  would  put 
the  city  right.  With  regard  to  the  question  of  age, 
we  had  seen  instances  where  persons  under  25, 
and  he  believed  but  21  or  22,  had  been  elected  go- 
vernors of  states  in  which  no  provision  was  made 
in  their  constitutions  in  regard  to  agn.  In  Michigan 
this  had  occurred.  They  had  had  some  experience 
there  of  the  talent  of  a  young  man  who  was  left 
in  charge  of  the  territorial  government,  anJ  they 
desired  to  avail  themselves  t;f  his  qualifications, 
when  they  became  a  State,  and  perhaps  ihat  influ- 
enced them  in  having  no  restriction  with  regard 
to  age.  And  when  he  bec;me  governor,  Mr.  T. 
believed  he  might  say  without  ftar  of  contradiction, 
that  he  administered  the  government  of  that  state 
in  a  manner  highly  satisfactory  to  the  people.  No 
evil  had  resulted  there.  Arid  if  it  should  happen 
in  New  York  that  a  youi:g  man  hud  sodis.inguish- 
ed  himsf  If  as  to  commend  himself  to  the  highest 
confidence  of  the  people,  and  they  chose  to  ele- 
vate him  to  the  highest  office  in  their  gift,  they 
could  do  it  with  entire  safety.  But  it  was  not 
probable  that  such  a  case  would  occur  soon  or  ever. 
It  required,  ordinarily,  a  man  to  struggle  along 
ten,  01  even  fifteen  or  twenty  years,  against  his 
competitors  who  were  struggling  to  attain  the 
same  point;  it  required  a  long  period  to  gain 
that  confidence  among  the  people  of  this  State 
as  to  induce  them  to  put  a  man  in  the  highest 
place  in  their  gift.  How  were  nominations  got 
up  by  all  parties  and  how  perhaps  would  they 
be  got  up  for  all  time  to  com£?  Why,  the  people 
Assembled  and  elected  delegates — Irom  such  as 
they  kn^w  to  be  men  of  character— intelligent, 
prudent  and  discreet  men — and  they  assembled  in 
Convention  and  they  put  in  nomination  before 
the  people  a  man  in  whom  they  had  confidence. 
Now  then  is  it  supposed  that  any  evil  could  grow 
out  of  leaving  it  unrestricted  when  such  a  course 
was  pursued  ?  An  individual  could  not  rise  up 
and  nominate  himself  for  Governor  and  carry 
away  the  feelings  and  affections  of  the  people  if 
he  were  an  improper  person.  It  was  a  thing  im- 
possible. There  was  no  danger  whatever  in  leav- 
ing the  clause  in  the  Constitution  unrestricted,  in 
regard  to  either  age  or  residence  further  than  as 
proposed  by  the  gentleman  from  St.  Lawrence. — 
Entertaining  these  views  he  should  sustain  his 
amendment. 


AJr  ANGEL  had  be^n  unwilling  to  impose 
himself  upon  the  Convention,  and  he  had  sat  in  si- 
lence from  the  commencement  of  the  session,  buc 
as  had  been  observed  by  the  gentleman  from  Co. 
lumbia,  as  they  were  about  to  establish  a  princi- 
ple, he  felt  some  anxiety  respecting  the  conclu- 
sion to  which  they  might  come,  and  was  desirous 
that  they  should  have  a  free  expression  of  views 
one  to  another,  and  a  full  and  fair  understanding 
in  regard  to  the  principle  which  the  Convention 
might  soon  be  called  upon  to  settle.  He  had 
heard  it  suggested  here,  (without  naming  indivi- 
duals,) and  much  to  his  surprise,  that  they  ought 
not  to  make  laws  here  to  bind  the  people,  that 
when  the  time  arrived,  the  people  would  judge 
tor  themselves.  Now,  what  was  meant,  under- 
stood and  designed  by  a  Constitution  ?  What  but 
a  rule  of  action  to  govern  the  sovereign  in  the  ad- 
ministralion  of  a  government?  It  was  a  law 
which  was  designed  to  bind  the  sovereign  action 
of  the  people.  By  our  institutions  we  make  a 
majority  control — we  vest  sovereign  power  in  a 
majority  of  the  people.  But  the  minority  always 
existed,  and  it  had  rights  equil  to  the  majority. — 
The  minority  had  a  right  to  say  to  the  majority, 
"  we  must  bind  and  circumscribe  your  action;  we 
are  not  willing  to  give  you  a  power  that  is  omni- 
potent." Such  was  the  right  of  minority;  and 
what  was  a  constitution  good  for  unless  it  were  to 
bind  the  action  of  a  majority  ?  We  could  not  live 
if  we  were  left  to  the  ever  varying  disposition  and 
feelings  of  the  people.  We  have  had  experience 
enough  for  the  las';  six  years  to  admonish  us  that 
we  should*  have  something  stable — that  cannot  be 
broken  down  or  blown  to  the  four  winds  of  Hea- 
ven  by  every  excitement  that  was  started.  As  he 
understood  their  duty  h  re,  it  was  to  prescribe 
rules  and  regulations  that  will  correct  and  keep 
within  bounds  the  action  of  a  majority  of  the  peo- 
ple. This  was  not  a  new  idea.  Minorities  do  com- 
plain often,  and  bitterly,  of  the  action  ot majori- 
ties. They  have  a  right  to  say  that  we  will  lorm 
a  compact,  that  we  will  make  a  bargain  among 
ourselves  that  shall  set  due  bounds  to  all,  and  say 
to  the  majority  "  thus  far  shall  you  go  and  no 
farther."  As  regardt  d  the  amendment  under  con- 
sideration, 5  years  was  proposed  by  it  to  be  the 
time  during  which  a  residence  should  be  shown 
in  this  State.  That  was  the  provision  of  the  ex- 
isting Conslitution,  but  it  went  further  and  re- 
quired  that  the  Governor  should  be  a  "  native" 
citizen  of  the  United  State*.  Since  the  adjourn- 
ment on  Saturday,  he  had  taken  the  pains  to  look 
into  the  debates  and  jour  nals  of  the  Convention  of 
'21.  In  examining  the  Constitution  of  '77,  he 
found  that  there  was  no  such  qualification  re- 
quired—but in  that  of '21  the  word  «'  native"  was 
introduced.  He  had  enquired  of  several  gentle- 
med  why  such  an  alteration  had  been  made,  but 
he  was  not  able  to  get  a  specific  and  satisfactory 
answer.  He  therefore  took  the  trouble  to  look  in- 
to the  journal  of  the  debates,  and  he  there  found 
that  the  report  of  the  committee  on  the  Executive 
department  recommended  a  residence  of  14  years  ; 
and  that  when  the  Convention  went  into  commit- 
tee of  the  whole  on  that  report,  a  delegate  from 
Saratoga  rose  and  made  a  motion  to  strike  out  the 
provision  for  14  years'  residence*  and  insert  a 
provision  that  the  Executive  should  be  a  natural- 
born  citizen  of  the  United  States.  That  was, 


191 


adopted  in  committee  of  the  whole  unanimously. 
After  w;!.rds,    however,  in   Convention  the  words 
*  natural-born  citizen"  were  stricken  out,  and  the 
word  "  native"  was  substituted,  as  it  was  suggest- 
ed that  the  original  words  might  have  left  an  un- 
certainty as  to  the  meaning  of  the  Convention, 
for  **  natural-born  citizen"   might  have  had  some 
reference  to  the  manner  of  birth,  while  the  word 
"  native"  would  mean  the  place  of  birth.     Now 
he  was  not  tenacious  about  the  retention  of  the 
word  "  native,"  but  he  thought  it  would  cut  off  a 
considerable  class  of  citizens  that  ought  not  to  be 
excluded.  There  were  many  brought  here  by  their 
parents  in  infancy  who  would   by  a  life   spent 
here,  be  as  well  acquainted  with  our  institutions, 
and  who  would  be  as  competent  and  capable  as 
any  body  to   fill  the  place  of  Governor.     But  he 
certainly  had  objections  to  taking  a  foreigner  who 
was  born,   and  whose   life  had  been  matured, 
under  a  different  form  of  government,  a  stranger 
to  our  institutions  and  their  operations,  and  who 
would  bring  with  him  more  or  less  of  the  feelings 
inherent  in  human  nature,  and  which  follow  man 
wherever  he  goes.     Man  naturally  looks  back  to 
the  place  of  his  nativity,  and  his  lingering  recol- 
lections might  bring  him  in  collision  with  his  du- 
ties as   Executive  of  the  State.     He  wanted  the 
person  who  should  administer  the  government  of 
the   State  to  be  well  acquainted  with  its  history 
:md  its  administration.     Why,  we  were   a   large 
territory  and  a  numerous  people  ;  we  have  diver- 
sified interests,  and  a  year's  residence  would  not 
give  any  man  a  knowledge  of  them.     He  must  be 
here   for  years,  and   identified  with   us   and  our 
system  of  administering  the  government,  and  must 
know  the  several  wants  of  the  people  in  the  several 
localities  of  the  State.     Would  any  one  insist  that 
all  this  could  be  acquired  in  the  short  period  of  one 
yean?     It  appeared  to  him  that   it  could   not,  and 
tor  this  reason  he  wou'd    make  a   change   in  the 
provision  reouinr  g  a  residence  of  five  years.     He 
thought  that  to  be  as  short  a    period  as    it   should 
be,    for  the   qualification  of  the   Executive.      He 
had  none  of  that  spleen  against  foreigners  which 
pervaded  some — he  was  pleased  to  see  them  come, 
and  he  thought  it  was  profitable  to  the  State    that 
.'hey   should  come.     And  when  they  got  here,  he 
would  grant  them  equal  rights  and    privileges,  as 
tar  as  their  information  would  enable  them  to  dis- 
charge their  duty.     He  had  no  attachment  for  the 
party  got  up  to  proscribe  and  persecute  them,  but 
he  wanted  to  keep  the  Constitution  as  he  thought 
it  should  be.     He    wanted    to    have  the  man  "to 
whom   was   assigned  the   executive  duties  of  the 
ro  have  a  sufficiently  long  residence  rur-Mo 
know   the  seveial  wants  and  the  several  interests 
of  the  people.      He   was  somewhat  surprised  to 
hear  it  stated  here  that  no  qualification    as  to  age 
was  required.     He  had  himself  numbered  a  good 
many  years,  and  he  certainly  looked  back  and  saw 
That  when  he  was  20  or  30 'he  knew  but  little.— 
When  he  was  thirty,   he   found  he  had  learned 
more  in  the  last  ten  years,  than  in  the  preceding 
twenty.     And  when   he  was  forty,  he  found  the 
previous  ten  years  had  been  more  profitable  in 

experience   than  any  part  of  his  previous  life. 

We  wanted  an  experienced  and  not  a  rash  young 

man   holding  the  reins  of  our  government.     It 

might   be  said   we  shall    not  get    one.       There 

'  then  be  no  objection  to  a  restriction  which 


would  be  harmless,  while  it  would  prevent  any 
evil  of  the  kind.  We  saw  many  young  men  ca- 
pable of  managing  business,  before  they  arrived 
at  their  legal  majority,  21  years  ;  yet  before  that 
age  they  could  not  bind  themselves  by  contracts. 
But  because  a  few  were  as  well  qualified  at  an 
earlier  period  of  life  as  others  at  forty,  would  they 
remove  the  restrictions  from  an  entire  class  ? — 
Would  they  for  such  a  reason,  permit  boys  to 
vote  ?  The  age  of  twenty-one  was  fixed  as  the  pe- 
riod when  an  adult  should  vote,  and  had  they  not 
as  much  right  to  restrict  the  governorship  to 
thirty  as  the  franchise  to  twenty  one  ?  We  had  a 
perfect  right  he  held,  in  principle  to  say  to  the 
people,  "  We  will  not,  with  your  consent,  allow 
you  to  elect  a  governor,  until  he  is  thirty  years  of 
age,  because  you  may  elect  one  without  experi- 
ence." The  Constitution  had  been  likened  to  a 
ship  at  sea,  and  he  apprehended  every  prudent 
man,  before  he  went  a  long  voyage,  would  ascer- 
tain whether  his  vessel  was  rotten,  and  able  to  do 
very  well  in  a  calm,  or  whether  she  was  not  sound 
and  able  to  stand  whatever  of  rough  and  hazar- 
dous weather  she  might  encounter. 

Mr.  BROWN  felt  called  upon  to  submit  an  ob- 
servation   or  two  here,  because  he  felt  that  there 
were  difficulties  in  regard  to  the  proposition  of  the 
gentleman  from  St.    Lawrence,  that  had  not   oc- 
curred to  him  at  all.     There  was  no  difference  in 
principle  between  the  two  pending  propositions — 
the  one  required  a  five  years'  residence — the  other, 
one.     It  was,   therefore,  a   question   ot  time,  en. 
tirely.     And   if  the  imposition   of  a  residence  of 
five  years  was  a  violation  of  the  sovereignty  of  the 
people,  then   that  of  one   year  was   equally  so. — 
There  was  nothing  therefore  in  that;  but  the  dif- 
ficulty which  had  occurred  to  his  mind,  was  this : 
He  thought  there  was  great  propriety  in  requiring 
a  longer  residence  than  the  one  year  •  and  if  that 
were  to  be  ihe  term,  he  preferred  not  to  put  it  in 
i  he  form   in    which  it    was   presented — for    all 
knew  that  there  were  no  more  embarrassing  ques- 
tions at  the    polls  than  this   qualification  of  resi- 
dence—questions  growing   out  of  the  fact  of  the 
voter  having  been  abroad,  in  a  distant  part  of  the 
world,  during  the  year.     He  would  have  no  such 
question  raised  on  the  election  of  a  Governor,  nor 
the  least  shadow  of  duubt  as  to  his  qualifications 
under  the  Constitution,  to  administer  the  govern, 
meat.     As  to  the  idea   of  limiting   the  sovereign 
power  of  the  people  in  this   matter,  it  had   been 
well  met  by  the  gentleman   from  Allegany,  (Mr. 
ANGEXL  )     We  required  a  person  fo  be  21  before 
he  couid   bind    himself  by  contract.     Here  it  was 
proposed  not    to  permit  him  to   do  an   act  in  the 
luiuu  or  on  behalf  of  ihe    people,  without  some 
limitation  as  to  age.     Where  was  the  distinction, 
or  the  reason  for  a   distinction    between  the  two 
ciisis  ?     As  to  the  limitation  of  age,  he  was  not  so 
clear.     The   capacity  or   ability   to  discharge  the 
functions  of  Governor,  did  n<  t  belong  to  any  period 
of  life.     It  was  by  no  means  well  settled  at  what 
period  the    humai,  intellect  was  in  its  best  vigor. 
He    would  not  therefore  prescribe   30   years — he 
would    leave  some  latitude    there,  lor    some  men 
possessed  morevisior  of  intellect  at  25  than  at  any 
future  period.    He  would  be  permitted  to  advert  to 
some  facts  that  would  illustrate  this  subject.    If  he 
was  not  mistaken  the  Constitution  of  the  U.  S.  re- 
quired an  individual  to  be  five  and  twenty  to  be  eli  - 


192 


gible  to  a  seat  in  the  House  of  Representatives,  and 
if  Mr.  Clay  had  not  been  misrepresented  he  took 
his  seat  in  the  Senate  of  the  U.  S.  long  before  he 
was  25 — and  very  few  would  question  the  ability 
and  skill  and  power  with  which  he  exercised  del- 
egated authority.  Napoleon  Bonaparte  comman- 

great  General 


ded  the  arm^ 
to  refer 


irmy  of  Italy  at  26 — and  were  he  (Mr.  B. 
to  the   period  when   that  ereat  Genera 


exhibited  the  greatest  capacity  for  war  or  govern- 
ment, he  should  point  to  that  period  of  his  life. — 
He  would  advert  to  the  fact  that  the  Convention 
of  '21  excluded  judges  from  the  bench  at  60. — 
But  what  was  our  experience  on  that  subject?  — 
It  is  this — that  men  thrown  out  by  that  rule,  had 
exhibited  more  vigor  of  intellect  after  60,  than 
for  the  ten  years  before — and  the  rule  was  now 
almost  universally  condemned.  He  would  advert 
to  one  other  fact  and  then  conclude.  Mr.  Pitt,  if 
his  memory  served  him,  took  his  seat  in  the  House 
of  Commons  at  22  or  23.  He  was  prime  minis- 
ter of  England  at  a  period  in  the  history  of  that 
nation,  when  her  very  existence  was  threatened. 
He  should  therefore,  vote  against  the  amend- 
ment of  the  gentleman  from  St.  Lawrence — 
while  he  felt  that  at  a  period  of  time  less  than 
30  years  of  age,  gentlemen  were  qualified  to  dis- 
charge the  duties  of  Executive. 

Mr.  SHEPARD  did  not  agree  entirely  with  the 
gentleman  from  St.  Lawrence  in  his  proposition 
— although  it  seemed  to  be  a  step  and  a  conside- 
rable one,  nearer  to  his  view  of  thinking  upon  the 
question  under  consideration,  than  the  proposition 
of  any  other  member,  before  the  committee.  In 
his  judgment  the  second  section  should  be  strick. 
en  out  entirely.  He  saw  no  necessity  of  imposing 
any  restriction  whatever  upon  the  choice  of  the 
people,  and  he  should  in  the  course  of  his  re- 
raarks  answer  the  argument  which  the  gentleman 
from  Columbia  had  advanced  to  support  the  op- 
posite view  of  this  question.  He  did  not  go  to 
the  length  of  his  colleague  (Mr.  HUNT)  in  sup- 
posing that  the  people  have  no  right  by  joint  con- 
cert  and  agreement  to  impose  upon  themselves 
such  restrictions  to  the  exercise  of  their  powers  as 
they  might  see  tit.  He  did  not  see  that  that 
proposition  was  necessarily  involved  in  this  dis- 
cussion. He  did  not  see  that  gentlemen  \\eie 
driven,  ;>s  the  gentleman  from  Columbia  (Mr. 
JORDAN)  seemed  to  suppose,  to  take  either  that 
proposition  or  the  one  he  contend  d  for.  He  (Mr. 
S.)  saw  a  middle  ground  that  could  be  safely  occu- 
pied, and  in  his  judgment  was  the  wiser  ground. 
What  did  the  second  section  provide  for?  The 
selection  of  a  Governor  immediately  by  the 


people,   voted   for   by  them,  to   carry    out   those 
measure!    that    are    agitating    the   public 


mind 


and  that  the  public  desire  to  see  achieved  at 
the  time  of  his  election.  Although  he  concurred 
in  the  opinion  that  it  was  in  the  power  of  the 
people  to  impose  that  restriction  upon  the  object 
of  their  choice,  yet  in  his  judgment  it  was  un- 
wise to  do  so.  The  Governor  was  chosen  to  be 
the  representative  of  the  people,  of  their  views, 
and  feelings  and  interests,  as  they  exist  at  the 
time  he  is  chosen.  He  would  leave  it  to  the  peo- 
ple to  judge  who  was  the  most  fit  thus  to  repre- 
sent them.  Gentlemen  feared  that  they  might  _r r_ 

judge  unwisely.     He  would  say  that  if  that  fear   tened  with  a  great  deal  of  attention  to  the  arg 


If  the  people  had  not  tlj£  intelligence  nor  the  ca- 
pacity to  select  their  immediate   representatives, 
they  certainly  want  the  capacity  and  intelligence 
to  govern   through   those   representatives.     Our 
whole  system  in  this  country — the  system  of  nine 
and  twenty  distinct  governments — is  an  elective 
one  ;  it  proceeds  entirely  on  the  supposition  that 
the  people  are  able  to  judge  who  are  best  quali- 
fied to  represent  their  views,  and  it  is  that  sys- 
tem with  which  the  gentleman   from    Columbia 
proposes  to  interfere.     He   says,   and  says  very 
truly,  that  the   practice  in   many  States   of  the 
Union  has  been  different.     That  was  very  true — 
but  what  did  it  prove  ?     It  proves  too  much.     It 
was  an  argument,  and  always  had  been  for  a  thou- 
sand years,   in  favor   of   the   existing   state    of 
things.       Now,    without    question,    those    who 
sought    to    make   changes,    should    be    guided 
by    the  lights   of   experience — he    did   not  de- 
ny that.     But  the  gentleman's  argument — drawn 
from  practice — proved    entirely  too    much  ; — be- 
cause everything  it  had  been  the  uniform  practice 
to  do  was  not  intrinsically  right.    Now  to  go  on  to 
another  argument   and  upon   these   two  that    he 
(Mr.  S.)  was  stating,  rested  the  objections  of  the 
gentleman  from  Columbia.     He  (Mr.  J  )  said  that 
no  evil  had  arisen  from  the  present  system.    That 
was  very  true,  but  it  did  not  prove   that  it  should 
be  retained.  In  his  (Mr.  S.'s)  judgment,  we  should 
act  most  wisely  by  considering,  not   whether   evil 
has  or  has  not  arisen,  but    whether   the   principle 
was  intrinsically  right  or  wrong.  Now  he  rernem. 
bered  two   very   important   instances   in   history 
which  made  the  fallacy  of  the  gentleman's   argu- 
ment, most  signally  apparent.     When  the  13    co- 
lonies were  driven  by  the  British  system  of  taxa- 
tion to  take  up  arms  in  their  defence,  Dr.  Johnson 
wrote  a  very  able  pamphlet  called   "Taxation  no 
Tyranny,"  and  he  insisted,  if  Mr.  S.  remembered 
aright  in  that  pamphlet,  that  there  was  no  evil  in 
that  system  of  taxation,  because  the  colonies  must 
be  taxed  in  some  form  or  other.     He   overlooked 
the  piinciple  involved.     The  same  question  arose 
when  a  levy  of  twenty  shillings  for  ship  money  was 
made  on  John  Hampden  in    Charles  the  First's 
time.     That  practically    was    no    evil    to    him. 
for    he    w.is    a    man    of   wealth — but    the    pay: 
ment   of    half  of  it  would   have  made  his  chil- 
dren slaves  forever.     Therefore  it  seemed  to  him 
that  the  argument  drawn  from   the  consideration 
that  no  evil  had   arisen,   was  not  intrinsically 
sound.     This  provision  it  has  been  said  was  adop- 
ted in  the  Constitution  of  the  United  States— so 
it  was.     That  Constitution,   however,  it  may  be 
said  in  the   first  place,  was  made   under  circum- 
stances of  considerable  difficulty,   and  was  emi- 
nently an  instrument  of  compromise  :  and  in  the 
second   place  it  may  be  said   as  to   the  choice  of 
President  that  it  was  delegated  to   an  Electoral 
College;  and  the   provision   that  the  President 
should  be  of  the  age  of  35  years  was  perhaps  pro- 
perly inserted  to  prevent  the  erroneous  action  of 
the   College.     The   same  may  be    said  as  to  the 
choice  of  Senators  under  the  government,  who  are 
chosen  by  the  legislatures   of  the  States.     As  to 
the  selection  of  Representatives  he  did  not  think 
that  the  principle  was  well  applied.     He  had  lis- 


was  well  grounded,  that  the  whole  system    and 
order  of  our  institutions  were  not  worth  a  rush.— 


ments  urged  on  the  other  side,  and  he  had   be 
peculiarly  struck  with  the  outre— out  of  the  waj 


193 


instances  that  had  been  produced  supporting  their 
views  of  this  question.  We  want  a  candidate 
says  his  colleague  (Mr.  MORRIS,)  who  knows  our 
wants.  Our  wants!  We  want  one  who  knows 
the  wants  of  the  people.  Who  best  knows  that. 
He  (Mr.  S.)  would  say  the  people  themselves.— 
And  that  was  the  best  answer  he  could  give  to 
such  an  argument.  The  gentleman  from  Essex 
was  fearful  lest  O'Connell  might  come  lu  re. 

Mr.  Si  Ai  MOXS  said  nothing  against  him.  He 
woul  1  like  to  vote  for  him— as  he  thought  him  to 
be  more  Conservative  than  most  of  our  Democrats. 

Mr.  SMKPA11D  had  supposed  that  Mr.  O'CoN- 
NKLL  had  fallen  into  the  sere  and  yellow  leaf, 
and  was  out  of  the  question,  and  he  had  appre- 
hended that  there  were  so  many  candidates  on  this 
side  of  the  water,  that  it  would  hardly  be  neces- 
sary to  go  the  other  side  for  one.  But  his  col- 
league from  New- York,  (Mr.  MORRIS)  had  the 
most  astonishing  doubt  of  all — it  was  beyond  the 
doubts  of  all  the  doubters  that  ever  existed.  He 
was  fearful  that  some  wandering  stranger  would 
enter  the  state,  and  by  exciting  the  people  by  the 
silvery  tones  of  his  eloquence,  they  might  be  in- 
duced to  select  him  for  the  governor.  He  (Mr. 
S.)  had  taken  the  trouble  to  examine  the  circum- 
stances to  produce  these  results,  and  he  found 
that  the  silvery  address  must  be  made  on  the  elec- 
tion day,  and  at  all  the  polls  in  the  state — and 
the  ballots  already  prepared  and  distributed.  He 
found  also,  because  he  supposed  that  there  was 
some  pride  of  party — that  it  was  required 
that  the  regular  candidates  should  be  willing 
to  withdraw — in  a  word,  perhaps,  it  was  bet- 
ter to  say,  that  the  people  should  have  run  insane. 
All  these  objections  to  the  illustration  of  his  col 
league,  seemed  to  him  to  be  perfectly  conclusive. 
His  colleague  ran  into  another  en  or.  He  v.'is 
fearful  that  the  people  might  bemislead  by  a  tern 
porary  excit  .•i:".>nt.  Now,  he  (Mr.  S.)  did  not  be 
lieve  in  tempo, ary  excitements.  Where  thete 
were  such  excitements  there  were  temporal1} 
causes,  and  his  colleague  had  cited  an  instance  in 
New  York  It  was  not  for  him  (Mr.  S.)  to  state 
the  causes  which  gave  rise  to  that.  He  could  do 
it,  and  he  would  if  it  were  desirable.  He  put  his 
answer  to  the  other  arguments  on  the  other  side, 
on  the  broad  ground  that  the  people  were  better 
able  to  judge  <>f  their  own  wishes  and  their  own 
wants,  and  would  be  therefore  better  represented 
than  we  are,  or  we  could  possibly  assist  them  by 
any  limitation  upon  them,  no  matter  how  wiseK 
devised  or  how  well  meant. 

Mr.  TALLMADGE  :  I  sir,  have  sat  silent 
thus  far  in  the  progress  of  these  discussions, 
and  in  a  great  measure  during  the  progress  ot 
business  here.  My  strength  and  energies  have 
been  severely  taxed  by  the  duties  imposed  on 
me  by  this  body.  I  sir,  have  arrived  at  an  age 
and  under  circumstances  that  leave  me  nothing 
to  say  to  Buncombe.  And  I  feel  no  interest  in 
this-controversy  save  what  every  citizen  ought  to 
feel  in  a  matter  which  involves  remotely  certainly 
a  principle.  My  lot  is  cast;  my  destiny  is  limited; 
and  whether  you  let  a  young  man  of  20.  be  Go- 
yernor,  or  admit  the  old  man  of  70,  is  a  question 
in  which  personally  I  have  no  interest.  I  have 
sat  still  under  the  hope  that  some  gentleman 
would  say  what  I  would  like  to  hear  said.  But 
nqt  hearing  it,  I  venture  to  make  a  few  re- 


marks  on  this  subject.  Sir,  the  particular  ques- 
tion under  consideration  is  whether  your  Gov- 
ernor shall  be  30  years  of  age  and  5  years  a  resi- 
dent  of  the  state.  That  is  the  great  question 
pending.  I  care  very  little  which  way  it 
goes.  But  I  rise  to  enter  my  protest  and  to  ex- 
press my  alarm  at  the  spirit  evinced  in  the  course 
of  these  discussions.  It  is  of  very  little  conse- 
quence to  be  arguing  hypothetical  questions  — 
questions  that  have  not  arisen  in  the  practical 
operations  of  our  government  for  a  quarter  of  a 
century.  Here  we  are,  entering  on  the  fifth 
week  of  the  session,  spending  day  after  day  in 
debate,  and  doing  nothing.  Why  sit  here  deba- 
ting imaginary  questions — questions  that  have 
not  arisen  that  I  know  of,  any  where  in  the 
state?  What  is  the  spirit  evinced  by  this  motion 
and  the  tenor  of  this  debate?  It  is  a  spirit  to  pull 
down  and  destroy.  It  is  that  against  which  I  rise. 
Go  to  the  constitution  of  the  U.  S.,  and  you 
will  find  that  our  ancestors,  many  of  them  born 
in  a  foreign  country,  fixed  35  years  of  age,  and 
14  years'  residence  for  the  presidency.  Was  there 
not  discretion  there?  Were  there  not  fitness  and 
propriety?  Had  they  not  lived  under  a  monar- 
chial  government,  and  under  royal  officers?  Did 
they  not  know  and  understand  the  whole  ques- 
tion? Did  they  not  appreciate  the  importance 
of  guarding  against  undue  influences,  to  pro- 
vide against  contingencies  in  a  matter  where  the 
people  c  ould  not  review  and  reconsider?  It  is  a 
great  and  important  principle,  this  power  of  re- 
consideration. Why  do  you  sir,  (pointing  to 
the  Chairman)  hold  that  seat  as  chairman  of 
this  committee?  It  is  that  we  may  have  the  ad- 
vantage of  a  double  consideration — that  propo- 
sitions may  be  submitted  here,  debated  freely 
in  committee  of  the  whole,  first  impressions 
poured  forth,  no  vote  taken  which  is  obliga- 
tory,— no  yeas  and  nays,  but  a  free  inter- 
change and  comparison  of  opinions — so  that 
when  we  come  into  the  house,  we  may  vote 
more  understandingly  and  deliberately  upon  a 
calm  view  of  the  case.  In  the  constitution  you 
provide  for  a  senate  and  assembly,  and  some- 
times you  provide  that  bills  touching  revenue 
shall  originate  only  in  the  popular  branch. — 
Why  all  these  restrictions?  And  then,  after  the 
bills  have  passed,  there  was  your  council  of  re- 
vision, now  your  executive,  to  approve  or 
disapprove  of  what  has  been  done.  Is  this 
the  invasion  of  Liberty?— of  that  Liberty 
which  I  hope  we  may  all  live  long  to  enjoy? 
But  how  is  it  with  individuals  ?  Will  you  let 
me  promise  to  pay  the  debt  of  a  third  person  ? 
No,  says  the  law,  you  must  reduce  it  to  writing 
or  it  shall  not  be  obligatory.  What  sir,  deny 
my  right  to  do  this!  Dare  you  so  invade  »y 
liberty,  that  I  cannot  will  my  property  to  my 
child  or  friend  ?  No,  says  the  law.  We  compel 
you  to  put  it  in  writing,  under  hand  and  seal, 
witnessed  by  three  witnesses,  signing  in  pres- 
ence of  the  testator  and  of  each  other — or  else 
your  deed  is  void.  Why  this  caution,  but  to 
secure  due  deliberation  and  care  in  important 
transactions  of  private  life?  And  why  not 
make  provision  to  secure  the  same  prudent  cau- 
tion when  we  come  to  choose  a  chief  magistrate? 
Plant  these  checks  in  the  constitution  ;  or  rather 


194 


do  not  eradicate  those  which  have  been  put 
there,  and  found  to  work  well.  He  that  goes  to 
pull  up  these  posts  and  landmarks, will  never  find 
me  his  companion.  I  came  here  by  order  of  the 
people  of  a  county  that  in  my  youth  never  failed 
rae,  when  they  thought  it  would  gratify  me  to 
take  part  in  the  councils  of  the  state  or  nation. 
They  commanded  me  to  come  here  because  they 
knew  that  at  my  advanced  age  they  could  rely 
on  me  to  utter  without  fear  what  I  thought, 
and  to  do  what  I  thought  right.  To  allude  to  a 
recent  matter  by  way  of  illustration:  I  am  not 
one  of  those  who  are  willing  to  absent  them- 
selves regularly  from  the  sittings  of  this  body 
oa  Saturday,  and  perhaps  on  the  following 
Monday,  and  yet  fear  to  record  rny  name,  on  a 
call  of  the  ayes  and  noes  affirmatively  for  an 
open  adjournment.  Turn  over  all  these  things, 
and  see  if  it  is  not  better  to  come  back  to  calm 
considerate  reason.  My  constituents  sent  me 
here  to  amend  the  constitution.  I  brought  with 
me — we  all  brought  our  tools  along — our  sod- 
dering  and  caulking  tools  among  others — to  see 
if  the  vessel  of  state  may  not  need  repairing — 
if  a  leak  was  found  here,  to  patch  it  and  mend 
it — our  commission  being  to  examine  the  hulk 
thoroughly,  and  repair  where  we  find  it  neces- 
sary. I  come  here  to  help  mend  the  constitu- 
tion. But  what  have  we  been  about?  Have 
we  been  mending  the  constitution,  or  have  we 
with  reckless  hand,  been  pulling  it  down?  I 
ask  if  the  tenor  of  the  resolutions  offered 
here  and  referred  to  committees,  proposing  to 
amend  the  constitution,  will  not  alarm  a  calm 
and  considerate  people,  who  want  quiet,  hap- 
piness, and  a  good  and  stable  government?  Sir, 
ia  my  agricultural  pursuits*,  if  I  send  my  wagon 
to  the  mechanic  to  mend,  and  he  keep  it  awhile, 
and  at  his  caprice  breaks  it  up  and  uses  it  for 
fuel — and  sends  me  back  in  due  time  a  new 
wagon — is  there  a  bench  in  the  state  or  Union 
that  would  say  that  I  am  bound  to  take  it  or  to 
pay  for  it?  I  employed  him  not  to  destroy — I 
commissioned  him  to  mend, to  fortify  and  correct. 
Therefore  I  rise  here  to  thank  my  friend,  the 
chairman  of  committee  number  five,  who  has 
made  this  report,  for  adopting  as  far  as  he 
could,  the  old  constitution.  To  that  I  declare 
my  adhesion,  subject  only  to  such  amendments 
here  and  there,  as  the  people  have  suggested 
or  urged.  I  came  not  to  destroy,  but  to  repair. 
Aad  where  are  we  at  the  beginning  of  the  fifth 
week  of  the  session  ?  We  have  got  through 
one  short  section,  declaring  in  effect  that  we 
will  have  a  Governor  and  Lieut.  Governor.— 
We  have  partly  passed — for  we  are  in  commit- 
tee of  the  whole,  where  no  final  vote  is  taken 
— one  single  section  with  three  lines  in  it,  pre- 
cisely as  it  stood  in  the  old  constitution.  I  am 
pained  to  see  this.  With  my  friend  from  Co- 
lombia (Mr.  JORDAN)  whom  I  am  proud  to  en- 
dorse— and  with  my  friend  from  Ontario  (Mr, 
NICHOLAS),  whom  I  am  also  proud  to  endorse 
— I  came  here  to  repair,  not  to  destroy,  I'feel 
that  it  is  out  of  our  commission  to  pull  to  pieces 
this  whole  instrument.  Far  be  it  from  me,  sir, 
to  pretend  to  any  special  devotion  to  that  por- 
tion of  the  civilized  world  called  the  people  of 
Shis  Union.  I  have  no  humility  to  profess — no 
declarations  of  love  and  confidence  to  make 


here — except  that  I  believe  they  are  disposed 
to  stand  by  what  is  right,  and  I  have  no 
apprehension  but  what  they  will  ultimately 
decide  right.  Now,  sir,  looking  back  to  the 
Convention  which  framed  the  constitution  of 
the  Union,  we  find  that  they  proceeded  with 
caution  and  prudence — and  so  far  as  the  Presi- 
dent was  concerned,  prescribed  certain  qualifi- 
cations of  age  and  residence.  We  see  that  our 
constitution  of  1821,  prescribed  30  years  of  age 
and  five  years  residence  for  a  Governor.  Shall 
we  hastily  pull  away  these  landmarks,  which 
experience  has  shown  to  be  in  no  way  incon- 
venient or  embarrassing,  and  with  which  no- 
body has  found  fault  ?  It  is  painful  to  me,  sir, 
to  argue  this  question,  which  I  regard  as  one  of 
jurisdiction.  It  is  not  in  my  commission.  We 
were  sent  here  to  repair  defects — to  examine 
and  search  out  the  defective  spots  to  which  the 
people  have  directed  our  attention,  as  necessary 
to  be  made  good,  and  more  effectually  to  secure 
the  welfare  of  all.  Do  this,  and  we  shall  find 
our  work  short.  Let  us  go  to  work  with  unan- 
imity and  diligence  upon  the  spots  which  have 
been  pointed  to  as  defective,  and  leave  those 
which  have  not  been  a  subject  of  general  com- 
plaint as  they  are.  In  relation  to  religious 
freedom,  for  instance,  will  any  man  be  disposed 
to  disturb  the  article  on  that  subject?  Espe- 
cially after  the  prayer  that  all  of  us  listened  to 
the  other  day,  from  that  desk  (pointing  to  the 
Speaker's  chair)  —  thanking  God  for  his  man- 
ifold  mercies,  and  especially  for  the  privilege 
common  to  us  all  of  worshipping  the  true  God, 
or  many  gods,  or  no  god  at  all !  Our  liberty  is 
indeed  great  in  this  and  other  respects.  Let  us 
see  that  we  do  not  abuse  it.  And  yet,  sir,  the 
valuable  article  guarantying  some  of  these 
rights  is  too  restrictive  for  those  who  don't 
want  to  be  asked  as  a  witness,  as  to  their  ac- 
countability. I  enter  my  solemn  and  open  pro- 
test against  this  destructive  effort  at  pulling 
down/  A  great  misfortune,  sir,  it  is,  that  the 
legislature  "which  passed  the  law  calling  this 
Convention,  did  not  point  specifically  to  those 
parts  of  the  constitution  which  they  charged  us 
to  amend — but  that  not  having  been  done,  it  is 
our  duty  to  repair  the  error  by  confining  our- 
selves  to  those  parts  of  the  instrument  that  the 
public  attention  has  been  called  to  as  defective. 
The  great  principle  of  having  some  precaution 
against  inconsiderate  action,  runs  through  all 
our  institutions,  and  must  not  be  lost  sight  of. 
It  is  not  necessary  to  imagine  cases,  to  show  its 
importance.  Yet  as  many  have  been  imagined, 
let  me  suppose  one  having  immediate  reference 
to  the  present  state  of  things.  No  man  shall 
go  beyond  me  in  admiration,  I  had  almost  said 
adoration,  of  the  gallantry  of  a  Taylor,  who 
has  so  recently  immortalized  the  name  of  Ame- 
rica on  the  banks  of  the  Rio  Grande.  He  has 
always  been  regarded,  as  he  really  is,  as  an  able 
General.  But  was  there  a  man  that  ever 
thought  of  him  for  the  Presidency  until  a  single 
battle,  won  I  had  almost  said  in  a  single  hour's 
contest,  brought  him  prominently  befor'e  the 
public?  My  word  for  it,  sir,  bring  that  man  here, 
and  there  are  not  ten  men  among  us  beginning 
with  my  venerable  friend  who  leads  off  on  the 
ayes  and  noes  (Mr,  ALLEN),  that  would  not  be 


195 


ready  at  once  to  go  for  him  for  any  office  in  the 
state  or  nation.  "Let  him  arrive  here  in   Octo 
her,  and  he  would  be  your  Governor  in  Novem 
her.     [Laughter.]     It  is  wise  to  guard  agains 
these  impulses.     The  character,  welfare,  anc 
destinies  of  this  state  should  not   be  placed  at 
the   mercy  of  these   temporary  excitements. — 
Provision   should  be  made  in  the  fundamenta 
law,  to  secure  especially  a  mature  and  reitera- 
ted consideration  of  every   matter    connected 
with   the   government.     That  is   the    leading 
principle  that  runs  through  all  our  institutions 
The  case  of  Michigan  has  been  referred  to,  as 
illustrating  the  safety  of  having  a  Governor  ol 
26  years  of  age.     It  is  painful   to  me,  sir,  to 
speak  of  the  dead.     I  knew  the  person  alluded 
to.     I   now   know  his  father,  and   respect  him 
highly.     But  being  compelled  to  speak  of  the 
career  of  Michigan — and  I  do  it  with  reluctance 
— under   the   auspices  of  a  young   Governor — 
I  must   be  permitted   to   point    to  the    career 
of  that    state,    from    indebtedness   to  repudia- 
tion,  as  an  admonition  to  us  to  see  to   it   that 
we  secure  age  and  the   discretion   which   years 
bring  with  them,  at  the  helm.     No  blame  I  lay 
to  him  who  is  dead.     I   am    dealing  with  facts, 
not  men.     And  I  point  you  to  the  history  of  that 
infant  state,  from  her  first  loan  of  five  millions, 
put  forth  under  a   Governor   below  25,  down  to 
her  repudiation  of  it — as   replete   with  instruc- 
tion and  admonition.     I  regret  that  the  case  has 
been  alluded  to.     But  being  cited  here,  I  cannot 
forbear  to  say  that  were  I  to  have  named  a  sin- 
gle case  that  should  inculcate  prudence  and  cau- 
tion in  this   matter  of   qualification,   it   would 
have  been  that  case.     I  would  have  drawn  from 
it  an  impressive  lesson  on   the   propriety  of  se- 
curing the  benefit  of  a  mature   consideration  in 
advance,  in  a   matter   where  we   cannot  recall 
and  revoke  the  results  of  our  own  indiscretion. 
Look  at  this  article  now   under  consideration. 
Have  you  not  a  section   there  providing  for  the 
displacement    of  an    elective   officer  that    may 
prove  unworthy?    And  why   is  this?     It  is  be- 
cause the  people  having  once  chosen  a  man,  can- 
not recall  the  act,  except  by  the  process  ol  im- 
peachment,  which   takes   two   years.     Let  us 
plant  a  few  landmarks  here.     Let  us  secure  at 
least  ypars  of  discretion  in  the  Governor  of  this 
great  state,  and  a  residence  long  enough  to  ena- 
ble a  candidate  to  become    acquainted  with  the 
theory  and  working  in  detail  of  our  institutions. 
I  urge  therefore,  that  all  these  are  provisions  to 
re  caution  and  prudence.     The  idea  of  re- 
stricting the  people — and  that  the  people  can  be 
trusted— has  nothing    to  do  with    the  question. 
t  is  a  fallacy  to  suppose  that  these  are  restric- 
tions on  the  people.     All   words,  sir— all  words 
-that  should  have  no  weight.    The  people  sent 
us  here,  because   they    could   not  meet   them- 
selves.    We  stand  here  for   them— and   I  have 
no  hesitation  in  saying  or  acting  for  them,   that 
it  is  wise  and  prudent  to  plant  landmarks    and 
safe  guards  against  precipitate  and  hasty  action 
My   friend  from   Orange,    (Mr.    BROWN,)  has 
called  up  the  case  of  Napoleon,   at   the  head  of 
an  army,  when  but  a  youth,  and  as  even  at  that 
period  at  the  height  of  his  military  glory.     True 
»ir,  in  all  the  qualities  of  a  commanding  general 
—Napoleon  was  indeed  great — and  perhaps  his 


prominent   qualities  of  impetuosity  and  daring> 
intrepidity     and    rashness   were     those    which 
marked   him    as  the   very   man   for  the  crisis 
But  let  me  ask,  if  in  the  destiny  of  a  wise  Prov- 
idence, it  had   been  permitted  to   this   mighty 
spirit,   instead   of  being    doomed    to    end    his 
life  at  St.  Helena,  to   have   come   among  us  at 
this  moment— would  he    not  have  said,  at  the 
first  glance  at  our   condition,,  that  we   had  gone 
rashly  to  work — that  we  had  all  set  to  with  our 
various  tools  and  implements,  without  direction 
or    system,    at   cutting     clown    the     vessel   of 
state  ?      Would     he     not     have    said    that  it 
strongly  reminded   him  of  the  scenes   of  early 
life  ?     Would  he  not  have  whispered   caution  * 
Beware — this  free  country  !      Remember,  that 
liberty  run  wild,  has  ever  found  its   end  in  des- 
potism ?     I  bring  before   you  a  military   com- 
mander,  than   whom   perhaps    no  hero  before 
was  ever  inspired   with  a  more   ardent  love  of 
country  and    of  liberty.     I  evoke  his  spirit,  and 
imagine  him  talking  with   us.     WTould  he  not 
say,  '  I  have  run  this  career  before   you.     I  be- 
gun with  the   impetuosity   of  youth.     Liberty, 
run  wild,  was  the   object  of  pursuit.    I  follow- 
ed in  that  direction,  until  the  world  almost  was 
at  my  heels.'     Would   he   not  say,  '  search  my 
path  through  the  t<  rrid,  the   temperate,  aye,  the 
frigid  zones — and   you  will   find   whitening  the 
battle  fields  I  won,  the  bones   of  those  who  fol- 
lowed  my  wild  footsteps.     Learn  from  this  the 
consequences  that  rash    precipitation  and  head- 
long impetuosity,  in  the  pursuit  of    any  object, 
however  noble,  always  bring  with  it.'  Would  he 
not  add — '  If  that  is  not  enough ,  look  at  the  blood 
that  overflowed  Europe  under   my   career,  and 
learn  lessons  of  wisdom    from   the  desolation 
that  has  marked  its  termination.'   Taking  then, 
my  opponent's  argument,   I  dwell  on  the  case 
put  as  one  on  which  we  should  ponder  well.- — 
It  admonishes  us  to  be  prudent — to  see  to  it,  not 
that   popular   liberty  should  be  curtailed,   but 
that  that  liberty  should  be  secure  from  the  con- 
sequences of    precipitation.      Let    not    empty 
words  delude  any  body.    Go  forward  with  pru- 
dence— as  we  have  gone  on  thus  far,  in  a  ca- 
reer  of  marked   success — with   a   magnificent 
system    of  internal   improvements   nearly  per- 
"ected — with  our  finances  safe  and  secure^  our 
state  prosperous  to  a  degree  unparalleled  any 
where.     Sir,  it  has  been  my  lot  to  know  some- 
thing of  the  history  of  the  system,  which  com- 
menced with  the  construction  of  what  was  call- 
ed by  a  certain  Senator,  the  "  big  ditch."  Where 
that    ditch   now?    What    its    condition? — 
Need  I  speak  of  its  value  and  importance  to  this 
great  state— off  the  wealth  it  has  yielded,  and  is 
still  yielding  to  our  people  and  to  the  state  ?    But 
sir,  it  has  been  my  lot  to  stand  in  congress  and  to 
)e  taunted  with  the  cry  of  the  insolvency  of  New- 
York,  and  its  apprehended  bankruptcy,  under  the 
oad  of  this  great  undertaking.     To  the  glory  of 
!*few-York  be  it  said,  she  has  never  yet  repudia  - 
ed — and,  thank  God!  I  trust  she  never  will. — 
But  sir,  let  us  stop  this  infernal  spirit  of  pulling 
lown.     Adhere  to   the   principle   of  the   rule, 
adopted   the  other  day,  on  my  motion— when 
ou  are  asked  to   strike  out,  see  that  what  is  to 
)e   put  in,    is   preferable,   and  not   merely  an 
equivalent — and  particularly    that  changes  b« 


196 


not  made  for  the  mere  sake  of  change.  He  had 
only  to  forewarn  his  friends  to  take  care  how 
we  undertook  to  make  anew  what  the  people 
had  commissioned  us  to  repair — for  he  had  con- 
fidence in  the  country  that  they  would  reject  the 
new  wagon  we  should  send  to  them,  in  place  of 
the  one  they  wanted  repaired. 

Mr.  STOW  took  the  floor—but  gave  way  to  a 
motion  t"  rise  and  report— which  prevailed. 

Mr.  ARCliER  had  leave  of  absence  for  lour 
days  j  Mr.  MONRO  for  6. 

Adj.  to  11  o'clock  to-morrow  morning. 

TUESDAY,  (26/A  day)  June  30. 

Prayer  by  Rev.  Dr.  WYCKOFF. 

A  report  was  received  from  John  Davidson,  Re- 
gister  in  Chancery  relative  to  the  sale  of  Infant's 
estates,  &c.;  also  one  from  the  Equity  Clerk  of 
the  7th  Circuit,  on  the  same  subject.  Referred  to 
the  judiciary  committee 

An  invitation  was  received  from  the  Van  Rens- 

selaer  Guards,  offering  themselves  as  an   escort  to 

the  Convention,  in   the  procession  on    the  4th    of 

July.     On  motion  of  Gen.  WARD,  it  was  accepted. 

RIGHTS  OF  CITIZENS. 

Mr.  TALLMADGE,  from  the  committee  on 
the  rights   and   privileges  of  the   citizens  of  the 
State,  submitted  the  following  report : — 
ARTICLE  -. 

(j  1.  Men  are  by  nature  free  and  independent,  and  in 
their  social  relations  entitled  to  equal  rights. 

§  -2   All  political  powers  is  inherent  in  the  people. 

§  3.  No  member  of  this  State  shall  be  disfranchised,  or 
deprived  of  any  of  the  rights  or  privileges  secured  to  any 
citizen  thereof,  unless  by  the  law  of  the  land. 

§  4.  The  right  of  trial  by  jury  in  all  cases  in  which  it  has 
been  heretofore  used,  shall  remain  inviolate. 

§  5.  Excessive  bail  shall  not  be  required,  nor  excessive 
fines  imposed,  nor  cruel  or  unusual  punishment  inflicted. 

§  6.  Th  free  exercise  and  enjoyment  of  religious  profes- 
sion and  worship,  without  discrimination  or  preference, 
shall  forever  be  allowed  in  this  State  to  all  mankind;  but 
the  liberty  of  conscience  hereby  secured  shall  not  be  so 
construed  as  to  excuse  acts  of  licentiousness,  or  justify 
practices  inconsistent  with  the  peace  or  safety  of  this  State. 

§  7.  All  such  inhabitants  of  this  State,  of  any  religious 
denomination  whatever,  as  from  scruples  of  conscience 
may  be  adverse  to  bearing  arms,  ^hall  be  excused  there- 
from by  paying  to  the  State  an  equivalent  in  money;  and 
the  Legislature  shall  provide  by  law  for  the  collection  of 
such  equivalent,  to  be  estimated' according  to  the  expense 
in  time  and  money  of  an  ordinary  able-bodied  militiaman. 

§  9.  The  privilege  of  the  writ  of  habeas  corpus  shall  not 
foe  suspended,  unless,  when,  in  cases  of  rebellion  or  inva- 
sion the  public  safety  may  require  its  suspension. 

^  9.  No  person  shall  be  held  to  answer  for  a  capital  or 
otherwise  infamous  crime,  (except  in  cases  of  impeach- 
ment, and  in  cases  of  the  militia  when  in  actual  service, 
and  the  land  and  naval  forces  in  time  of  war,  or  which  this 
State  may  keep  with  the  consent  of  Congress  in  time  of 
peace  and  in  cases  of  petit  larceny,  un  ier  the  regulation 
of  the  Legislature,)  unless  on  presentment  or  indictment  of 
a  grand  jury,  and  in  every  trial  or  impeachment  or  indict- 
ment the  party  accused  shall  be  allowed  to  appear  and  de- 
fend in  person  and  with  counsel,  as  in  civil  actions.  No 
person  shall  be  subject  to  be  twice  put  in  jeopardy  for  the 
same  offence,  nor  shall  he  be  compelled  to  be  a  witness 
against  himself,  in  any  criminal  case;  nor  in  any  case  to 
subject  himself  to  a  penalty  or  forfeiture,  or  any  loss  or  de- 
privation in  the  nature  of  a  penalty  or  forfeiture;  nor  be 
deprived  of  life,  liberty  or  property  without  due  process 
of  law. 

§  10.  Every  citizen  may  freely  speak,  write  and  publish 
his  sentiments  on  all  subjects,  being  responsible  for  the 
abuse  of  that  right;  and  no  law  shall  be  passed  to  restrain 
or  abridge  the  liberty  of  speech  or  of  the  press.  In  all 
prosecutions  or  indictments,  and  in  civil  actions  for  libels, 
the  truth  may  be  given  in  evidence  to  the  jury;  and  if  it  shall 
appeai'  to  the  jury  that  the  matter  charged  as  libellous  is 
true,  and  was  published  with  good  motives  and  for  justifi- 


able ends,  the  party  shall  bo^icquitted,  and  the  jury  shall 
have  the  right  to  determine  the  law  and  the  fact 

($11.  Private  property  shall  not  be  taken  for  public  use 
without  just  compensation  being  first  made  therefor.  If 
the  taking  is  for  the  use  of  the  State,  the  Legislature  shall 
provide  for  determining  the  damages;  and  if  lor  any  other 
public  use,  the  damages  shall  be  assessed  by  a  jury.  The 
Legislature  may  provide  for  the  opening  of  private  roads, 
in  case  a  jury  of  freeholders  shall  determine  the  road  ne- 
cessary; the  persons  benefitted  paying  all  expenses  and 
damages  to  be  also  determined  by  a  jury. 

§  12.  Witnesses  in  criminal  cases  shall  not  be  imprisoned 
for  the  want  of  bail  to  secure  their  attendance  at  the  trial 
of  the  cause;  unless  upon  the  special  order  of  the  magis- 
trate or  court  having  jurisdiction  of  the  case.  Laws  shall 
be  passed  to  secure,  if  necessary,  the  temporary  detention 
f  witnesses  in  criminal  cases,  and  for  their  prompt  exami- 
iation  de  bene  esse,  which  examination  shall  ;be  evidence 
n  all  subsequent  proceedings  upon  the  subject  matters: 
and  shall  have  the  same  effect  as  the  oral  testimony  of  the 
witness  would  have,  were  he  present  and  examined  in 
person. 

§  13.  No  person  shall  be  imprisoned  on  any  civil  process, 
on  any  writ  or  proceeding  upon  any  contract,  express  or 
implied,  or  upon  any  judgment  or  decree  founded  upon 
such  contract;  but  nothing  herein  contained  shall  extend 
to  actions  for  the  recovery  ol  moneys  collected  by  any 
public  officer,  or  on  promise  to  marry,  nor  in  any  case  to 
fraud  or  breach  of  trust. 

§  14.  All  property,  real  or  personal,  of  the  wife,  owned 
by  her  before  marriage,  and  that  acquired  by  her  after- 
words, by  gift  devise  or  descent,  or  otherwise  than  from 
her  husband,  shall  be  her  separate  property.  Laws  shall 
be  passed  providing  for  the  registry  of  the  wife's  separate 
property,  and  more  clearly  defining  the  rights  of  the  wife 
thereto,  as  well  as  property  held  by  her  with  her  husband. 

§  15.  No  divorce  shall  be  granted  by  the  Legislature,  or 
otherwise  than  by  judicial  proceedings  provided  for  by 
law. 

fy  16.  No  lottery  shall  be  authorised  in  this  State;  nor 
shall  the  sale  of  lottery  tickets  within  this  State  be  al- 
lowed. 

§  17.  No  purchase  on  contract  for  the  sale  of  lands  in 
this  State,  made  since  the"  seventeenth  day  of  October, 
1775,  or  which  may  hereafter  be  made  of,  or  with  the  In- 
dians in  this  State,  shall  be  valid,  unless  made  under  the 
authority  and  with  the  consent  of  the  Legislature. 

§  18.  Such  parts  of  the  common  law,  and  of  the  acts  of 
the  Legislature  of  the  Colony  of  New  York,  as  together 
did  form  the  law  of  the  said  Colony  on  the  nineteenth  day 
day  of  April,  1775,  and  the  resolutions  of  the  Congress  of 
the  said  Colony  and  of  the  Convention  of  the  State  of  New 
York  in  force  on  the  twentieth  day  of  April,  1777,  which 
have  not  since  expired  or  been  repealed  or  altered;  and 
such  acts  of  the  Legislature  of  this  State  as  are  now  in 
force,  shall  be  and  continue  the  law  of  this  State,  subject 
to  such  alteration  as  the  Legislature  shall  make  concern- 
ing the  same;  but  all  such  parts  of  the  common  law,  and 
such  of  the  said  acts,  or  parts  thereof,  as  are  repugnant  to 
this  Constitution,  are  hereby  abrogated. 

§  19.  All  grants  of  land  within  this  State,  made  by  the 
King  of  Great  Britain,  or  persons  acting  under  his  authori- 
ty, after  the  fourteenth  day  of  October,  1775,  shall  be  null 
and  void;  but  nothing  contained  in  this  Constitution  shall 
impair  the  obligation  of  anv  debts  contracted  by  the  State, 
or  individuals  or  bodies  corporate,  or  any  other  rights  of 
property,  or  any  suits,  actions,  rights  of  action,  or  other 
proceedings  in  courts  of  justice. 

By  order  of  the  Committee, 

JAMES  TALLMADGE,  Chairman. 

Mr.  TALLMADGE  said  that  his  committee 
had  spent  much  time,  labor,  and  research  upon 
the  subjects  contained  in  this  report.  They  had 
retained  all  these  provisions  contained  in  the  ex- 
isting constitution  which  it  was  not  deemed  de- 
sirable to  amend  or  alter;  and  in  order  to  iacili- 
i->te  members  &c.  in  understanding  the  report,  the 
committee  had  carefully  distinguished  the  old  from 
the  new  provisions  inserted.  With  regard  to  the 
resolutions  which  have  been  offered  by  members 
of  the  convention  from  time  to  time,  and  had  been 
referred  to  his  committee,  he  would  state  that  they 
had  each  and  all  been  carefully  considered  by  the 
committee ;  and  if  those  gentlemen  who  offered 
them  did  not  find  them  embodied  in  this  repoit,  it 


197 


s  cause  the  committee  either  considered  the 
resolutions  as  properly  apperiaimug  to  legislation, 
(which  was  the  case  with  many  of  them)  or  else 
where  the  committee  had  been  opposed  to  any  ac- 
tion on  or  to  the  adoption  ot  the  resolutions  or  pro- 
positions presented  to  them.  But  the  gentlemen 
who  piesented  those  resolutions  would,  however 
have  an  opportunity  to  present  them  in  the  shape 
of  amendments  to  the  report,  when  the  Conven- 
tion came  to  act  upon  it,  section  by  section,  in 
committee  of  the  whole.  And  he  would  furthei 
state  that  when  the  sections  came  up  in  order  for 
consideration  hereafter,  some  member  of  the  com- 
mittee would  explain  the  reasons  that  had  actua- 
ted them  in  their  adoption  as  they  stood  j  and  for 
this  reason  the  committee  had  not  made  any  re- 
port in  detail  He  would  not  now  remark  any 
further,  as  he  wished  to  avoid  all  discussion  on  the 
report  at  present;  and  therefore  moved  its  Tefer 
ence  to  the  committee  ot  the  whole.  It  was  re- 
ferred as  usual. 

Mr.  WORDEN  said  it  was  so  important  a  re- 
port, that  he  wished  5  or  10  times  the  usual  num- 
ber printed. 

Mr.  RUSSELL  reminded  him  that  the  standing 
rule  provided  that  8'  ;0  should  be  printed  ;  10  times 
that  number  would  be  8000. 

The  usual  number  (800)  was  ordered. 

EARLY   HOURS. 
Mr.  BAKER  presented  this: 

Resolved,  That  on  and  after  Tuesday  next,  this  Conven- 
Tention  will  meet  daily  at  9  o'clock  A.  M. 

Mr.  BAKER  said  that  after  this  week,  he  did 
not  think  that  the  members  of  the  Convention 
would  be  under  the  necessity  of  meeting  in  their 
respective  committee  rooms  in  the  morning,  as 
they  had  hitherto  been  compelled  to  do  j  at  least 
there  would  -be  but  few  that  would  have  to  do  so  ; 
and  therefore  he  thought  the  Convention  should 
meet  at  an  rariT-r  hour  than  11  o'clock.  He 
would  request  thai  the  resolution  be  laid  on  the 
able  for  consideration. 
It  was  so  ordered. 

THE  EXECUTIVE  DEPARTMENT. 

The  Convention  then  went  into  committee  of 
the  whole,  upon  the  report  on  the  powers  and  du- 
ties cf  the  executive,  Mr.  CHATF1ELD  in  the 
chair. 

Mr.  STOW  said  that  he  was  not  disposed  to  oc- 
cupy the  time  of  the  committee  on  this  subject. 
He  had  the  floor  when  the  committee  rose  yester- 
and  he  was  merely  then  proceeding  to  make 
one  or  two  suggestions  on  this  question  ;  and 
now,  in  order,  if  possible,  to  save  the  valuable 
time  of  the  Convention — give  even  one  more 
day  to  the  people  to  enable  them  to  examine 
the  amendments  that  would  be  made  here,  he 
would  be  perfectly  willing  to  waive  his  right 
to  the  floor,  provided  that  trie  committee  now  de- 
sired to  take  the  question  on  the  motion  before 
them.  (Here  he  paused;  some  one  or  two  told 
him  to  proceed;  and  there  did  not  appear  to  be 
any  desire  to  have  the  question  taken  at  that 
time..)  But  as  it  did  not  appear  to  be  the  desire 
of  the  committee  to  take  the  question  just  then, 
he  would  go  on  and  add  a  few  suggestions  only, 
to  what  had  been  already  advanced.  At  the  same 
time,  he  wished  the  committee  distinctly  to  bear 
in  mind,  that  if  they  unnecessarily  protracted 


this  debate,  it  would  not  be  done  from  any 
part  that  he  would  have  taken  in  it.  He 
bad  wished  yesterday  to  make  a  suggestion, 
which  he  would  make  at  this  time, — but  he  did 
not,  under  any  circumstances  intend  to  go  into  a 
discussion  of  the  subject  at  length;  this  was  not  ne- 
rssary,  after  the  very  able  and  eloquent  remarks 
and  elucidations  that  had  already  been  made  here 
by  members  of  the  Convention.  But  he  desired, 
in  the  first  place,  to  remind  this  Convention  we 
had  a  Constitution !  already  in  existence ;  and 
that  the  provision  that  was  then  under  discussion 
was  to  be  found  in  that  Constitution ;  and  those 
who  desired  to  alter  this,  ought  to  show  affirma- 
tively how  they  wished  to  have  it  altered.  It 
would  not  do  for  them  merely  to  show  that  the 
present  Constitution  is  wrong  in  some  respects : 
they  must  go  on,  and  give  the  reasons,  why  and 
wherefore  they  w*ish  such  and  such  alterations  to 
be  made  ;  and  they  must  go  farther,  and  bring  for- 
ward a  substitute  for  this  provision  that  will  be 
preferable  to  it.  It  was  a  highly  important  point 
that  the  committee  should  distinctly  keep  in  mind 
that  all  who  propose  any  amendments  to  the  Con- 
stitution must  show  affirmatively  why  it  is  to  be 
done.  That  is  the  true  issue.  He  did  think  that 
in  regard  to  the  question  then  before  them — that 
the  ardent  attention  which  had  been  drawn  to  the 
present  Constitution,  had  caused  them  to  over- 
look to  a  great  extent  the  probable  effect  of  many 
of  the  proposed  amendments.  The  gentleman 
from  St.  Lawrence  [Mr.  RUSSELL]  proposed  sub- 
stantially, that  whilst  striking  out  all  other  quali- 
fications for  the  governor,  yet  that  the  candidate 
for  that  office  should  be  an  elector  of  the  state. 
Nowr,  this,  he  contended,  instead  of  being  an  en- 
largement, would  practically  be  a  limitation; 
for  many  more  men  would  be  thought  of  by  the 
people  to  fill  this  office,  who  are  not  strictly  and 
technically  electors  at  the  time  of  their  selection. 
He  would,  for  example,  suppose  that  the  present 
governor  had  removed  to  an  adjoining  county,  so 
many  months  before  his  election ;  by  this  amend- 
ment he  would  have  been  rendered  ineligible. — 
And  this  alone  would  amount  to  a  far  greater 
practical  limitation  than  the  5  year's  residence 
proposed  by  the  gentleman  from  Essex,  [Mr. 
SIMMONS.]  And  as  to  the  requisition  that  a  can- 
didate should  be  thirty  years  of  age.  Now,  he 
was  not  so  far  removed  from  the  age  of  thirty 
years  himself,  as  not  to  feel  in  his  own 
heart  and  conscience,  that  no  man,  who  has 
not  passed,  at  least,  that  number  of  years,  is 
a  fit  man  to  wield  the  destinies  of  this  great  and 
important  state.  The  duties  of  the  governor,  it 
ought  to  be  remembered  were  not  confined  to  those 
of  an  executive  character.  He  exercised  duties 
of  a  much  higher  character  than  those  which 
might  be  regarded  as  strictly  executive ;  there 
was  a  power  entrusted  to  him  that  is,  in  its  charac- 
ter, judicial,  as  well  as  executive — that  is,  the 
pardoning  power  !  And  this  should  be  entrust- 
ed to  no  young  man  under  30  years  of  age ;  seeing 
the  caution,  prudence,  experience  and  strict  im- 
partiality and  justice  that  is  required  in  rightly 
administering  it.  Again  they  prppose  to  entrust 
to  the  Governor  certain  great  legislative  powers  ; 
powers  that  might,  in  effect  counteract  the  action 
of  all  the  other  branches  of  the  government.  To 
him  the  command  of  the  army  might  and  could  be 


198 


given ;  and  though  it  is  true  that  a  power  like  this 
might  sometimes  be  safely  entrusted  to  a  young 
man.yeicertainlythe  judicial  and  legislative  powers 
ough  not  to  be  entrusted  to  so  great  an  extent  to  9 
young  man  under  30,  without  sufficient  experi- 
ence, and  without  that  sound  judgment,  caution, 
and  prudence  which  many  years  of  experience 
only  can  give.  Now,  would  it  be  prudent,  h<j 
asked,  in  all  candor,  to  placeka  power  that  was 
equal  to  a  check  upon  all  branches  of  the  govern 
ment,  in  the  hands  of  a  young  man  who  had  had 
the  little  experience  which  is  to  be  found  always 
in  men  under  30  years  old  ?  Why  it  would  be 
highly  improper  ;  and  to  strengthen  him  in  his 
belief,  he  had  the  co  operation  iti  opinion  of  the 
most  intelligent  men  of  the  country.  He  was  al- 
so sustained  therein  by  the  people ;  tor  as  had  been 
well  observed  on  yesterday  by  the  gentleman  horn 
Columbia,  (Mr.  JORDAN,)  not  a  voice,  not  a  mur- 
mur, has  been  raised  against  it.  And  to  go  even 
still  further,  the  Convention  should  remember 
that  the  Governor  possessed  a  power  that  was  not 
derived  from  the  Constitution  of  the  Stale  at  all  ; 
and,  notwithstanding  all  the  restrictions  they 
might  put  upon  hitn,  they  would  not  deprive  him 
of  this  one  great  power.  It  was  the  power  to  fill 
the  vacancies  in  the  Senate  of  the  United  S'ates  ; 
and  the  members  ought  to  remember  thai  those 
vacancies  must  be  filled  by  men  of  the  age  of  30 
years ;  and  that  certain  emergencies  had  already 
occurred,  and  of  course  might  soon  occur  again, 
whete  the  Governor  oi  a  State  has  had  to  fill  both 
vacancies  in  the  United  Stales  Senate,  from  this 
State.  Now  was  il  not  incongruous  and  absurd  to 
say  that  a  man  under  30  years  of  age  should  ap- 
point those  two  Senators?  It  was  ridiculous  and 
inconsistent  upon  the  face  of  it;  and  it  was,  in 
effect,  pron  nmcing  the  Constitution  of  the  United 
States  an  absurdity,  where  it  requires,  as  one 
qualification  of  United  States  Senators,  that  they 
snail  be  30  years  of  age.  He  had  intended  yes- 
terdaj,  when  he  had  the  floor,  to  make  substan- 
tially these  suggestions  to  the  committee;  he 
would  have  passed  them  by  had  the  committee 
been  ready  to  vote  on  the  question  ;  having  made 
them,  he  would  go  no  further,  as  about  all  that 
could  be  said  on  the  subject  had  beensaid  alteady. 
He  would  confine  himself  hereafter  to  very  brief 
suggestions,  believing  it  to  be  his  duty  and  the 
duty  of  all  the  members  to  the  People  and  to  the 
Convention,  to  save  all  the  time  they  possibly 
could  in  its  deliberations. 

Mr.  A.  W.  YOUNG  said  he  would  not  detain 
the  Convention  but  a  few  minutes.  He  was  op- 
posed to  this  protracted  discussion  of  this  ques- 
tion, but  there  was  one  point  on  which  a  word 
or  two  might  properly  be  spoken  here.  The  gen- 
tleman from  Columbia  (Mr.  JORDAN)  had  very 
justly  said  on  yesterday  that  it  was  very  important 
now  to  settle  the  course  of  action  which  the  Con- 
vention intended  to  pursue  throughout  its  session 
in  regard  to  the  existing  Constitution  ;  whether 
they  intended  to  take  up  and  alter  every  part  of 
it ;  or  only  such  parts  as  the  people  had  called  for 
reform  in.  For  it  was  clear  to  him  and  must  be 
to  all,  that  unless. the  Convention  very  much  al- 
tered their  course,  they  would  never  get  through 
the  business  before  them — that  is  they  would  not 
within  any  reasonable  time  accomplish  the  ob- 
ject for  which  the  people  had  sent  them  there ; 


and  for  the  future  he  did  hope  that  the  unimpor- 
tant propositions  that  h*d  occupied  their  time 
from  day  to  day  would  no  longer  receive  so  much 
or  any  attention  from  the  Convention;  but  that  the 
members  would  confine  their  deliberations  to 
those  subjects  only  that  were  really  of  importance 
enough  to  be  considered.  And  that  they  should 
not  hereafter  discuss  for  days,  all  those  points 
that  are  now  to  be  found  in  the  existing  Consti- 
tution. And  if  the  committees  should  hereafter 
make  a  report  upon  any  of  these  minor  matters, 
he  thought  the  Convention  ought  to  pass  over 
them,  and  proceed  to  dispose  of  those  of  more 
importance.  He  did  not  know  whether  the  Con- 
vention was  ready  at  once  to  take  the  question  on 
this  amendment ;  but  he  wished  to  present  one  or 
two  considerations  which  had  some  weight — at 
least  they  had  so  to  his  mind,  and  in  determining 
his  course.  One  was,  that  if  the  Convention  in- 
troduced into  the  Constitution  so  many  of  these 
new  features  and  provisions  (many  of  which  that 
had  been  offered  being  in  the  highest  degree  ob- 
jectionable) would  it  not  endanger  the  ultimate 
adoption  of  it  by  the  people  ?  Now  if  they  wished 
to  secure  its  adoption,  they  ought  only  to  make 
these  important  amendments  which  had  been 
loudly  demanded  by  the  people ;  and  all  those 
well-tried  provisions  of  the  present  constitution, 
about  which  there  has  not  been  the  least  com- 
plaint, should  be  left  untouched.  They  have 
served  our  purpose  well  in  all  time  past,  and  that 
is  the  best  guarantee  that  we  can  have  that  they 
will  serve  our  purpose  well  in  all  time  to  come. 
As  to  the  removing  of  the  restrictions  which  have 
been  reported  by  the  committee,  it  has  been  ob- 
jected that  the  people  should  be  left  entirely  free, 
inasmuch  as  they  are  fully  competent  to  select  a 
Governor  for  themselves,  and  to  decide  whether 
he  should  be  under  or  over  30  years  of  age.  This 
is  all  very  true,  but  then  who  is  it  that  brings  for- 
ward these  candidates  for  Governor  ?  Not  the 
great  body  of  the  people ;  but  a  few  persons,  (ma- 
ny of  them  not  much  known)  delegated  for  that 
purpose,  meet  together  privately  and  decide  this ; 
and  it  is  but  too  well  known  that  in  those  con- 
ventions for  selecting  a  Governor,  considerations 
enter  that.never  would  govern  the  people  it  they 
had  the  selection  of  candidates  directly  by  them- 
selves. And  then,  also,  the  candidate  who  may 
be  selected,  although  he  may  have  been  some  time 
in  public  life,  is  never  too  well  known  by  the 
people  of  a  State.  And  scarcely  one  under  30 
years  of  age  is  sufficiently  well  known  by  or  to 
the  people — personally  or  by  his  acts.  This  State, 
it  should  be  remembered,  is  a  very  large  one ;  and 
these  considerations  should  have  great  weight 
with  the  Convention,  and  render  them  much  more 
particular  in  determining  as  to  the  qualifications 
of  the  Governor,  (the  age,  residence,  &c.)than  in 
a  small  State  where  all  the  prominent  public  men 
are  pretty  well  known  to  the  whole  people.  It 
has  been  said  that  this  is  wrong  in  principle,  the 
imposition  of  these  restrictions.  But  what  prin- 
iple  is  violated  by  it?  The  people  are  by 
tar  too  wise  to  believe  that  they  need  no  restric- 
tions; and  hence  they  nave  always  imposed  re- 
strictions  on  themselves.  He  fully  agreed  witti 
the  views  of  the  fathers  and  founders  of  our  insti- 
tutions— who  framed  the  Constitution  of  the  U.  S. 
that  it  was  a  most  important  point — a  matter  high- 


199 


eessary,  to  guard  against  the  abuse  of  liberty 
as  against  the  abuse  of  power.  He  should  cer- 
tainly vote  lot  some  of  the  restrictions  that  had 
been  brought  forward,  though  he  was  opposed  to 
retaining  that  word  "Native."  He  wished  to  ie- 
move  all  distinctions  between  the  foreign  citizen 
aud  the  unlive  born  citizen;  b  U  he  would  retain 
the  restrictions  respecting  the  3(3  years  of  age  and 
the  residence;  and  add  (hat  the  candidate  for  Go- 
vernor shall  have  been  for  five  years  a  citizen 
oi  the  U.  S  ;  and  this  he  did  not  believe  was  ai 
present  provided  for  by  any  of  the  restrictions  or 
resolutions. 

Some  remarks  having  been  suggested  about  the 
range  of  the  debate  having  too  great,  a  latitude. 

The  CHAIR  said  it  was  true  thit  the  debate  had 
taken  rather  a  wide  range;  and  if  had  been,  under 
the  circumstances,  somewhat  difficult  to  restrain 
gentlemen  within  due  limits.  To  a  great  ex- 
tent this  mast  be  left  to  the  discretion  and  good 
sense  of  the  committee  ;  but  at  the  same  time,  he 
observed  that  the  provisions  as  to  birth  and  age 
had  both  been  stricken  out  ot  the  clause  now  un- 
der consideration. 

Mr.  NICOLL  said  that  he  had  not  desired  to 
take  up  the  time  of  the  Convention  for  a  single 
moment  upon  this  question  :  but  that  the  debate 
having  taken  so  wide  a  range,  arguments  had  been 
adduced  which  required  to  be  fully  understood. — 
The  Convention  would  be  brought  to  vote  on  the 
question  whether  a  majority  of  the  people  are  to 
have  full  power  in  every  matter  connected  with 
this  government.  In  his  judgment  there  was  a 
very  great  error  prevailing  as  to  the  exercise  of 
the  sovereign  powei  ;  whether  it  belonged  to  the 
majority,  or  to  the  whole  people.  Undoubtedly 
the  sovereign  power  resided  in  the  whole  people  ; 
the  exercise  of  this  power  is  given  by  the  whole 
people  to  the  majority  ;  and  the  question  to  be 
decided  is  whether  the  whole  people  have  not  the 
right  to  say  to  i:.e  majority  that  they  shall  exer- 
cise this  power  uader  certain  restrictions.  These 
restrictions  are  imposed  on  the  majority  by  the 
whole  people,  for  they  have  never  given  to  the 
majority  the  unlimited  exercise  of  any  power; 
and  it  would  be  contending  for  a  very  dangerous 
principle  to  attempt  to  maintain  that  the  majority 
can  ever  possess  the  unlimited  exercise  of  this 
power.  There  is  no  greater  truth,  than  that  all 
government  depends  upon  the  assent  of  the  go- 
verned, which  is  made  up  of  the  majority  and  the 
minority.  They  never  had  an  instance  of  a  gove- 
nor  of  the  state  being  elected  by  the  whole  peo- 
ple; he  was  elected  by  a  mere  majority,  whom  the 
will  of  the  people  allowed  to  elect  a  governor. 
But  it  does  not  follow,  therefore,  that  the  whole 
power  should  be  exercised  by  the  majority  with- 
out any  restrictions  as  to  how  Ihey  should  exercise 
it ;  for  the  power  is  not  in  the  majority's  hands,  but 
merely  the  right  of  its  exercise,  under  proper  re 
strictions.  That  is  the  whole  question  before  us. 
And  it  was  not  at  all  derogatory  to  the  whole  people 
to  say  that  a  majority  shall  be  under  certain  res- 
trictions (which  restrictions  shall  guide  all  future 
majorities)  and  that  one  of  these  restrictions  shall 
be  that  the  candidate  for  Governor  shall  have  re- 
sided in  this  State  5  years.  For  if  this  question 
were  to  be  put  to  the  whole  people  for  them  to 
say  whether  or  not  it  was  proper,  in  their  judge- 
ment, that  the  candidate  for  Governor  should  have 


been  a  resident  oi  the  State  fur  5  years,  would  they 
not  all  answer  in  the  affirmative?  They  had  ae 
much  a  right  to  say  to  the  majority  that  there- 
shall  be  such  a  restriction  in  the  Constitution — as 
to' say  that  the  right  of  trial  by  jury  shall  remain 
inviolate  for  ever,  They  had  the  same  right  to 
say  so,  as  to  say  that  the  glorious  privilege  of  ha- 
beas  corpus  should  be  preserved  for  ever  to  Un- 
people. And  if  the  whole  people  can  extend  or 
limit  the  exercise  of  one  power  oi  privilege,  they 
can  extend  or  limit  the  exercise  of  another.  Mr. 
N  considered  that  the  declaration  of  a  majority 
might  be  as  oppressive  as  the  despotism  of  one 
man  ;  for,  as  an  eloquent  writer  had  most  truly  re. 
marked,  what  difference  did  it  make  to  theopprea- 
sed  \\heihei  he  was  bound  to  the  earth  by  one 
man,  or  by  10,000  me^i.  To  him  the  despotism 
is  the  same.  He  sincerely  trusted  that  this  sut" 
j^'Ct  would  be  considered  with  prudence  and  calm- 
ness. He  desired  to  restrain  the  intemperate  use 
of  power  whether  sought  to  be  exercised  by  tf*e 
few  or  many  ;  and  thus  secure  as  tar  as  practicable 
the  rights  of  ihe  whole  people,  the  minority  ac 
well  as  the  majority.  And  believing  the  qualifi- 
cation, to  be  en'irely  proper,  that  the  candidate 
for  governor  should  have  a  5  years  residence,  he 
should  vote  for  the  same. 

Mr.  WARD  said  that  he  had  not  risen  for  I!K 
purpose  of  going  into  the  discussion  of  the 
of  the  question  under  consideration,  but  to 
the  committee  to  a  knowledge  of  their  positioi... 
as  to  exac'ly  where  they  stood,  and  to  point  out 
the  propriety  of  gentlemen  limiting  themselves  to 
9  dehate  upon  the  real  point  at  issue.  The  con;- 
mittee  have  already  struck  out  the  word  "Na- 
tive," and  they  have  also  struck  out  that  part  oi 
the  clause  relating  to  the  qualification  of  aa;e  ;  and 
therefore  according  to  ihe  rules  of  parliamentary 
law,  it  was  not  now  competent  for  any  member  10 
discuss  either  of  those  questions  ;  but  if  any  gen 
tleman  chose  to  make  a  motion  to  have  thoj-e 
questions  reconsidered,  then  a  discussion  on  their 
merits  would  be  perfectly  proper  and  in  order, — 
But  it  was  not  necessary  for  any  gentleman  to 
make  any  such  motion  to  reconsider ;  for  ev- 
ery member  would  have  an  opportunity  to 
move  any  amendments,  or  make  any  obser- 
vations thereon  when  this  matter  comes 
up  hereafter  in  the  house.  It  would,  there- 
therefore,  greatly  facilitate  the  business  of  the 
Convention,  whilst  it  would  certainly  inflict  no 
wrong  on  any  gentleman,  if  the  members  would 
hereafter  confine  themselves  within  the  strict 
range  of  parliamentary  law.  And  whilst  he  was 
up,  he  would  state,  that  he  was  opposed  to  the 
substitute  which  had  been  offered  by  the  gentk- 
man  from  St.  Lawrence,  [Mr.  RUSSELL.]  He 
was  not  in  favor  of  the  qualification  that  a  candi- 
date for  governor  should  be  thirty  years  of  age, 
but  he  was  in  favor  of  the  five  years  residence  : 
that  is,  he  was  in  favor  of  the  clause  reported  by 
the  committee  as  it  now  stands  amended,  and  he 
would  recommend,  as  the  true  course  to  be  adop- 
ted, that  the  committee  should  at  once  get  a  vote 
upon  this  matter;  vote  down  the  proposition  of  the 
gentleman  from  St.  Lawrence  (Mr.  RUSSELL)  and 
vote  down  the  proposition  of  the  gentleman  from 
Essex,  [Mr.  SIMMONS]  and  pass  the  resolution 
with  tre  words  "  Native"  and  the  qualification  of 
age  stricken  out  And  if  they  then  passed  this 


200 


section,  as  it  now  stands,  they  could  go  on  to  the 
next  section,  and  afterwards  test  these  much  dis- 
puted points  in  the  house ;  and  there  he  would 
not  shrink  from  the  responsibility  of  meeting  all 
of  them,  and  of  recording  his  vote  upon  each  and 
every  one  of  them.  These  matters  had  been  very 
ably  and  very  fully  discussed,  and  it  wa*  much 
better  to  take  the  question  on  them  at  once  with- 
out any  further  debate. 

Mr.  WORDEN  agreed  with  the  gentleman 
from  Westchester,  [Mr.  WARD]  and  united  sin- 
cerely with  him  in  the  earnest  hope  that  they 
would  come  back  to  the  original  proposition  of 
the  Committee  as  it  stood,  and  he  trusted  that 
the  gentleman  from  Essex,  (Mr.  SIMMONS)  and 
the  gentleman  St.  Lawrence  (Mr.  RUSSELL) 
would  withdraw  their  propositions. 

Mr.  SIMMONS  said  that  the  gentleman  from 
Ontario  (Mr.  WORDEN)  had  only  anticipated  his 
intention;  and  with  a  view  to  expedite  the  busi- 
ness of  the  Convention,  he  would  accordingly 
withdraw  his  proposition. 

Mr.  WORDEN  hoped  that  the  gentleman  from 
St.  Lawrence  (Mr.  RUSSELL)  would  also  with- 
draw his  proposition  ;  and  he  at  the  same  time 
trusted  that  there  would  be  a  clause  inserted 
hereafter  containing  provisions  specifying  the 
requisite  qualifications  for  all  persons  holding 
office. 

Mr.  RUSSELL  called  for  the  reading  of  the 
section  as  it  now  stood. 

It  was  read. 

Mr.  RUSSELL  did  not  withdraw  his  amend- 
ment 

Mr.  O'CONOR  said,  that  although  complaints 
were  made  of  the  time  already  consumed  in  the 
debate,  and  some  members  seemed  to  attach  little 
importance  to  the  question  under  consideration, 
he  was  so  strongly  impressed  with  disfavor  toward 
the  whole  section,  had  so  clear  a  conviction  of  its 
unsoundness  and  inability,  that  a  sense  of  duty 
impelled  him  to  present  to  the  committee  the 
reasons  which  had  led  him  to  his  conclusion. — 
Very  little  of  the  section  remained.  The  only 
qualifications  of  foreign  birth  and  immaturity  in 
years  had  both  been  stricken  out  by  very  strong 
votes.  All  that  remained  for  us  was  to  determine 
whether  the  disqualification  of  happening  not  to 
have  resided  within  the  State  for  some  specified 
time  should  be  continued.  In  urging  the  rejec- 
tion of  that  also,  he  should  not  descant  upon  the 
merits  or  demerits  of  the  other  portions  of  the 
original  section  which  had  been  already  condemn- 
ed. But  he  would  make  some  remarks,  bearing 
as  well  upon  those,  now  repudiated  disqualifica- 
tions, as  upon  the  general  question  of  express  dis- 
qualification, as  an  entirety.  He  thought  but  lit- 
tle light  had  been  thrown  upon  the  question  by 
the  references  which  had  been  made  to  the  con- 
stitutions of  other  states.  He  also  had  looked  into 
these  constitutions,  as  well  as  those  adopted  during 
the  Revolution,  as  those  adopted  subsequently, — 
in  reference  to  the  subject  of  superadded  qualifi- 
cations for  public  office,  beyond  those  required  in 
members  of  the  constituent  body ;  he  had  also 
looked  into  and  compared  the  former  constitu- 
tions of  our  own  State  ;  and  in  the  course  of  this 
examination  he  had  been  led  to  contemplate 
the  precedents  upon  this  question  in  a  point  of 
view  somewhat  different  from  that  occupied  by 


other  gentlemen.  He  had  found  that  in  none 
of  the  constitutions  adopted  during  the  revo- 
lutionary struggle  was  foreign  birth  a  disqual- 
ification. He  conceived  that  the  omission 
furnished  strong  proof  of  the  discretion  of 
those  who  framed  those  early  constitutions. — 
Long  after  that  struggle  had  successfully  termi- 
nated, some  of  their  descendants,  not  very  credi- 
table to  their  liberality  or  gratitude,  had  intro- 
duced that  disqualification  into  the  constitutions 
of  new  States,  and  into  the  amended  constitutions 
of  some  old  States.  It  would  be  interesting  and 
instructive  in  this  respect  to  refer  to  the  history 
of  our  own  State.  The  first  constitution  was 
adopted  in  April,  1777,  very  shortly  after  the  de- 
claration of  Independence,  and  during  about  the 
darkest  period  of  the  Revolution.  At  that  time, 
our  arms  were  receiving  the  aid  of  many  distin- 
guished foreigners.  La  Fayette  had  just  arrived 
from  France.  Dekalb,  who  afterwards  fell  glori- 
ously battling  for  our  liberties  at  Camden,  pierced 
with  eleven  wounds,  was  with  La  Fayette  in  the 
service  of  the  United  States.  At  that  very  time, 
Steuben  and  Pulaski  were  in  France,  preparing 
for  embarkation  to  join  our  standard.  The  ser- 
vices of  the  former  were  invaluable,  the  latter 
also  fell  in  our  cause.  To  her  own  great  honor ; 
Georgia  erected  a  monument  to  his  memory,  on 
which  is  inscribed  his  name  only.  Sufficient  for 
his  epitaph,  the  memory  of  his  deeds,  his  best 
eulogium,  is  inscribed  upon  the  hearts  of  the 
American  people.  It  certainly  would  have  been 
a  weak,  unwise  policy  in  '77,  to  have  introduced 
into  the  constitutions  of  the  new  empires  then 
springing  into  life-^sustained  in  their  struggles 
for  existence  by  the  combined  exertions  of  these  *> 
distinguished  foreigners,  and  our  own  country- 
men, and  daily  receiving  succour  from  the  patri- 
ots of  other  climes — disqualifications  declaring  to 
these  gallant  and  generous  strangers,  that  if  any 
of  them  chanced  to  survive  the  perils  of  the  field, 
they  would  sustain  an  inferior  position  as  deni- 
zens of  the  new  States  they  had  hazarded  their 
lives  to  establish.  No  such  policy  found  favor 
with  the  framers  of  constitutions  during  our  strug- 
gle for  independence.  In  the  constitution  of '77, 
but  one  qualification  was  required,  and  that  was 
in  no  small  degree  indicative  of  the  weakness  of 
mind  which  usually  accompanies  an  illiberal  sen- 
timent. It  was,  that  he  should  be  a  freeholder  ;— 
a  qualification  but  yesterday  pronounced  by  the 
people  to  be  unworthy  of  a  place  in  the  Constitu- 
tion. He  repeated,  that  the  insertion  of  this  was 
only  evidence  of  the  weakness  which  ordinarily 
accompanied  a  disposition  to  create  disqualifica- 
tions by  prescribing  qualifications.  What  consti- 
tutes a  freeholder  ?  The  ownership  oftwo  square 
feet  of  land  in  John  Brown's  track ;  where  the 
ownership  of  a  thousand  acres  was  but  evidence 
of  a  man's  property,  would  make  a  man  a  free- 
holder and  qualify  him  to  be  Governor.  When 
practically  viewed,  how  sage  and  valuable  seems 
this  safeguard  for  our  common  weal  ?  The  fact 
to  which  he  invited  attention,  was  that  these 
States  during  their  revolutions,  while  they  were 
receiving  these  brilliant  accessions  to  the  talents, 
ability  and  valor  employed  in  establishing  their 
Liberties,  introduced  no  disqualifications,  imply- 
ing distrust  of,  or  contempt  for  foreigners.  And 
when  was  it  first  done  in  this  State  ?  After  half 


201 


a  century  had  elapsed;  during  which  period  we 
had  made  as  wise  selections  for  Governor   as  we 
had  ever  done  since;  during  which  no  complaint 
had  ever  been  heard  that  by  the  constitution  cit- 
izens of  immature  age   or  unworthy  persons  of 
foreign  birth,  might  be  unwisely  selected  for  that 
high  office.     It  had  been   strenuously  urged   by 
the    gentlemen    from     Dutchess     and     Ontario 
(Messrs.  TALLMADGE  and   NICOLL)   that  provi- 
sions of  an  existing  constitution,  whereat  no  fault 
was  found,  and  from  which  no  evil  had  resulted, 
should  be  left  untouched.     The   Convention   of 
1821  did  not  act  upon  this  conservative  principle: 
but  seemed  to  be  animated  by  a  sentiment  which, 
perhaps  might  as  well  not   be   characterized — a 
spirit  of   animosity — of   exclusion.      Mr.    O'C. 
would  not  apply  this  remark  to  the  whole  body  ; 
but  to  the   individual  member  or   members,  who 
brought  forward   and  advocated  these  checks  up- 
on the   popular  will.     They   introduced  the  dis- 
qualification of  foreign  birth,  which  the  Conven- 
tion of  '77   would  have  blushed   to  create  while 
the  blood  of  the  lamented  Montgomery  was  still 
fresh  upon  the  heights  of  Quebec.     His  fall  pre- 
ceded that  instrument  but   about  one  year.     It 
would  have  been   well  if  the   Convention  of  '21 
had  let  well  enough   alone.     After  these  States 
had  secured  their  independence,  and  had  acquired 
great  strength    and    power — after   the   common 
school  system  had   diffused  the  benign  influence 
of  learning,   and   thereby   increased  the  wisdom 
and   capacity   of  the  constituent  body,  it  ill  be- 
came that  Convention  to  forge  new  trammels  for 
the  people — to  stamp  upon  the  fundamental  law 
of  the  State  the  impress  of  exclusiveness,  of  illi- 
berality,  towards  the  natives  of  other  climes  ;  for 
many  whom  it  in  part  disfranchised  were  among 
the  most  valuable  and  intelligent  of  the  constitu- 
ent body.     We  had   lived  nearly  half  a  century 
under  a  Constitution  perfectly  good  in  that  re- 
spect, as  all  experience  and  the  absence  oT com- 
plaint  fully   proved.     Still,  uninfluenced  by  the 
principle  so  warmly  advocated  by  the  two  gentle- 
men before  alluded  to,  that  Convention  declined 
to  let  well  enough  alone.     It  warred  against  thai 
principle,  innovated  and  erred  ;   and  now  but  25 
years  having  elapsed  since  its  action — only   half 
the  period  which   had  sanctioned   the   previous 
rule  of  eligibility, — we,  being  called  upon  to  re- 
vise its  work,  ought  to   apply  that   principle  to 
their  erroneous  innovations.     We   should  strike 
out  these  idle,  preposterous  additions  to  the  quali 
fications  to  be  required  in   public   officers.     Le 
us,  however,  for  a  moment  recur  to  principle,  anc 
see  whether  there  is  a  propriety  in  retaining  an) 
of   these    qualifications.     In    every   democratic 
State  the  Constituent  body  is  the  Supreme  powe 
and  in  it  reposes  all  the   powers   of  governmen 
that  men  can  legitimately  exercise  over  them 
selves  or  others.     In  such  a  State  it  is  the   prov 
ince  of  the  fundamental  law   to  ascertain  wha 
persons  shall  form  the  constituent  body,  or  gov 
erning  power  in  the  State,  and  then  to  limit   am 
define,  with  as  much  exactitude   as   practicable 
the  powers  and  duties  of  the  agents  of  the  people 
or  in  other  words  the  several  departments  of  th 
•government,  to  the  end  that  the   rights  of   indi 
viduals  or  the  interests  of  the   State  may    suffe 
no  detriment  from    their  exercise.     It  was  th 
proper  province  of  such  an  instrument,  he  repeat 

13 


ed,  to  ascertain  the  constituent   body, 


in   which 
nature  of 
things,  that  body  never  could  embrace  all  within 


resided  the  supreme    power.     In   the 


the  protection  of  the  state,  and  who   were   to  be 
governed  by  its  laws.     Some  must  be  too  young 
to  participate  in  the   governing   power.     Others, 
again,  too  advanced  in  life  to  take  part  in  it.     It 
was  a  question  whether  females  should  constitute 
part  of  the  governing  body.     It  was  a  proper  sub- 
ject of  consideration  whether  persons   convicted 
of  crime  shall  be  permitted  to  form  part   of  the 
governing  body.     It  was  a  proper  subject  of  con- 
sideration whether  particular  classes  of  persons — 
he  would  mention  negroes,  Indians,  aliens,  and 
if  you  pleased  naturalized  citizens — should   form 
art  of  the  constituent  body.     And  in  laying  down 
ules  for  determining  who  were   the   constituent 
ody,  we  did  not  lay  restraints  on  the   people. — 
Ve  only  ascertained  who  the  people  were.     And 
aving  ascertained  that,  it  was  a  principle  not  to 
e   departed  from  that  in  a   democratic   form   of 
overnment    no    restraint   should    be  laid    on 
lem  in  their  sovereign  capacity  when  the  whole 
eople  acted  for  the  purposes  of  the  government, 
'his  doctrine  was  quite  consistent  with  the  exis- 
ence  of  provisions  declaring  what  persons  should 
e  eligible  from  a  particular  precinct  to  the  Sen- 
te  or  Assembly  ;  for  a  portion  was  not  the  whole 
eople,  and  where  power  was   thus  delegated  to 
portion  of  the  people  to  elect  a  member  of  As- 
embly  who  might   enact  laws  affecting  the  inte- 
ests  of  the   whole,  the   latter  leaving  no   other 
heck  on  the  election  in  the  precinct  or  district, 
night  rightfully  retain  the  selection  to  individu- 
Is  having  prescribed   qualifications.     What  re- 
traints  ought  to  be  imposed   in  such  cases,  was 
mother  question.     But  when  we  come,  as  in  the 
jase  of  the  Governor,  to  an  election  in  which  all 
articipate,  an  exercise  of  the  power  of  choice 
)y  the  whole  people,  acting  in  their  sovereign 
capacity— every  one  of  the  constituents,  or  gov- 
erning body,  having  a  vote — he  insisted  that  no 
restraint  whatever  should  be  imposed.     The  field 
of  selection   should  be  free  and   unrestricted.  — 
This   principle,   he  took  it,  was   too  clear  to  be 
disputed.      We   had  an  illustration   of  it  in  the 
sitting  of  this  very  body.     The  Convention  of '21 
virtually   provided  that  there   never  should  be 
another  Convention  ;  for  they  declared   how  all 
future  amendments  of  the  Constitution  should  be 
made,  confining  them  to  the  action  of  the  Legis- 
lature, in  a  given   way.     Yet  the  electoral  body : 
the  constituent  body  of  the   State  :  the  absolute 
ruling  power  of  the  State  in   whom  reposed  the 
right   of  sovereignty  :  had  set   that  law  entirely 
aside  ;  and  we  sat  here  deliberating  as  a  special 
committee  of  that  great  body,  to  prepare  for  their 
examination  such  amendments  as  may  be  deemed 
necessary  in   the   fundamental   law.     There  was 
no  mode  in  which  this  power  could  be  controlled, 
and  any  attempt  to   control  it  in  this  way,  would 
be  unwise,  against  sound   principles,  and  should 
not  be  attempted.     Besides  what  particle  of  good 
could  result  from  this  provision  ?     What  amount 
of  security  did  it   provide  for  the  good  people  of 
this  State  ?    As  it  stood,  no  man  could  be  a  Go- 
vernor, who  had  not  resided  five  years  within  the 
State.     It  did  not  say  five  years  immediately  pre- 
ceding the  election,  but  merely  required   a  five 
years'  precedent  residence.     For  aught  Mr.  O'C. 


202 


could  see  in  this  provision,  a  person  born  here, 
spending  the  first  five  years  of  his  life  here,  and 
then  going  to  India,  might  remain  absent  until 
invited  home  by  hearing  of  his  election  to  the 
Gubernatorial  Chair.  But  aside  from  this  mere 
verbal  criticism,  of  what  utility,  he  asked,  was 
it  to  provide  that  the  200,000  electors  of  this 
State,  who  must  concur  to  elect  a  Governor,  shall 
not  elect  a  man  who  had  not  resided  in  this  State 
long  enough  to  acquire  as  much  knowledge  of  its 
concerns  as  citizens  ordinarily  acquire  in  five 
years  ?  It  was  an  insult  to  the  people  to  suppose 
them  capable  of  making  such  a  selection.  The 
supposition  was  a  reproach  upon  the  good  sense 
of  the  people,  which  it  ill  became  us,  as  their 
representatives — the  vindicators  of  their  honor 
and  dignity  before  the  world — to  put  on  record. 
What  would  it  avail  us,  if  an  unworthy  individ- 
ual should  happen  so  far  to  win  the  esteem  of 
the  people  of  the  State  as  to  be  elected  Governor, 
that  he  possessed  the  very  common  qualification 
of  a  five  years'  residence  ?  It  would  be  more 
profitable  to  enact  that  he  should  have  a  certain 
height— though  it  would  be  hardly  reasonable 
to  say,  with  his  colleague,  (Mr.  HUNT)  that  he 
should  be  six  feet — it  would  be  more  profitable 
to  say  that  he  should  be  able  to  read  and  write. 
Retaining  this  small,  insignificant  qualification, 
which  could  scarcely  be  wanting  in  any  individu- 
al who  could  command  even  10,000  votes  lor  Go- 
vernor, could  serve  no  useful  purpose.  It  could 
perform  but  one  office,  and  that  was  to  show  that 
the  spirit  of  illiberally  which,  by  imposing  quali 
fications  would  exclude  from  office,  and  which 
distrusts  the  constituent  body,  yet  possesses  suffi- 
cient influence  in  the  public  councils,  to  have  its 
last  expiring  groan,  impotent  as  it  might  be,  i  ,- 
coiporated  into  the  fundamental  law.  For  his 
own  part,  he  would  noi,  and  he  hoped  the  com- 
initlee  would  not  leave,  in  the  Constitution  any 
evidence  that  such  a  sentiment  existed  in  this 
State.  He  said  that  although  none  of  ihe  elec- 
tors should  be  declared  incapable  of  holding  of 
fice,  still  it  was  true  as  an  universally  recognized 
principle  that  the  electoral  body  was  bound  to  se- 
lect one  ot  their  own  class.  This  may  rightfully 
be  insisted  on,  as  to  all  officers,  but  it  was  not 
usually  inserted  in  written  Constitutions.  It  was 
tacitly  assumed  that  a  stranger  could  not  be  intro- 
duced, and  that  all  selections  must  be  from  the 
constituent  body.  Thisappearsfrom  thesilenceof 
all  our  constitutions  as  to  the  qualifications  of 
judges,  and  other  officers  of  State,  except  where 
something  beyond  the  ordinary  qualifications  of  an 
elector  was  intended  to  be  prescribed.  For  aught 
that  appears  in  the  Constitution  of  the  U.  S.,  an 
alien  might  be  Chief  Justice  of  the  Supreme 
Court,  and  most  of  the  officers  under  our  State 
Constitution  might  be  held  by  an  alien,  a  woman 
or  an  infant.  By  the  United  States  Constitution 
the  President  was  required  to  have  certain  quali- 
fications beyond  those  of  an  elector.  So,  as  to 
Senators,  and  so  as  to  members  of  the  House  of 
Representatives.  He  supposed,  however,  that 
there  was  a  species  of  common  law  upon  this 
subject — unwritten,  but  universally  understood — 
to  this  effect,  that  no  man  was  eligible  to  any  of- 
fice in  the  State  who  did  possess  the  general  qua- 
lification of  an  elector.  He  meant  the  general, 
not  the  special  or  incidental  qualification  pre- 


scribed merely  for  the  regulation  of  the  places  of 
voting.  Six  months  residence  in  the  county  is  a 
special  qualification,  but  a  person  not  possessing 
that  might  have  the  general  qualifications  of  an 
elector — that  is,  he  might  be  a  white  male  citi- 
zen of  21  yisars  of  age,  and  for  one  year  a  resident 
within  the  State.  This,  by  the  common  law, 
would  render  him  eligible  to  any  office.  If  so, 
there  was  no  necessity  for  any  special  provision 
in  relation  to  the  Governor,  and  the  whole  sec- 
tion should  be  stricken  out  without  inserting  the 
words  proposed  by  the  gentleman  from  St.  Law- 
rence, (Mr.  RUSSELL,)  requiring  that  the  Govern- 
or should  be  an  elector.  If  the  section  was 
stricken  out,  the  Governor  would  stand  on  the 
same  footing  as  all  other  officers.  If  however  he 
was  mistaken  as  to  the  common  law  rule,  then  it 
would  be  proper  to  insert  somewhere  in  the  Con- 
stitution a  provision  as  suggested  by  the  gentle-  , 
man  from  Ontario,  (Mr.  WORDEN)  requiring  that 
all  persons  in  order  to  be  eligible  to  office  should 
possess  the  general  qualifications  of  an  elector. 
This  might  be  necessary  to  prevent  the  disquali- 
fications of  a  person  who  was  in  every  other  re- 
spect a  qualified  elector,  but  who  had  not  the  spe- 
cial qualification  of  residence  in  the  county  for 
six  months  next  prior  to  the  election.  Such  a 
provision  would  be  proper  and  would  include  the 
Governor  in  common  with  all  other  officers.  Be- 
lieving therefore  that  the  common  law  was  well 
enough  understood,  or  if  not,  that  a  general  pro- 
vision of  the  kind  suggested  would  be  introduced, 
though  he  could  not  vote  to  introduce  the  new 
matter  now  proposed  he  would  vote  to  strike  out 
the  whole  section,  as  useless  in  respect  to  any- 
practical  results,  repugnant  to  the  true  principles 
of  a  democratic  State,  and  improperly  evincing  a 
distrust  of  our  constituents. 

Mr.  HARRIS  said  that  he  regarded  this  matter 
as  of  very  little  importance.  It  was  entirely 
immaterial  whether  this  section  was  retained  or 
not.  He  had  no  idea  that  it  had  ever  been  of  any 
practical  benefit  to  the  people  of  this  State— that 
it  had  ever  saved  them  from  an  injudicious  choice 
or  that  it  ever  would.  He  had  no  idea  that  the 
people  of  this  state  for  long  centuries  to  come — 
if  the  labor  of  our  hands  should  continue  so  long 
— would  ever  be  disposed  to  elect  a  man  as  Gov- 
ernor who  did  not  possess  all  these  qualifica- 
tions. He  had  no  fears  that  the  people  of  this 
state  were  so  liable  to  delusion,  or  to  be  led  away 
by  passion,  or  by  any  improper  influence,  that  a 
foreigner  who  might  happen  at  a  period  of  high 
political  excitement,  to  take  the  stump,  might  be 
elected  Governor.  Nor  had  'he  any  fear  that  the 
people,  whether  restrained  or  not  by  constitu- 
tional provisions,  could  be  so  far  operated  upon 
by  improper  considerations  as  to  make  an  inju- 
dicious choice.  Gentlemen  seemed  to  suppose 
that  we  were  trenching  upon  the  rights  of  the 
people  when  we  went  beyond  those  defects  in 
the  Constitution  which  had  been  the  subject  of 
complaint,  and  his  friend  from  Columbia  (Mr. 
JORDAN)  had  indicated  it  as  his  opinion  that  we 
ought  to  limit  ourselves  to  certain  specific  de- 
fects which  had  been  the  occasion  of  our  con- 
vening. He  did  not  regard  himself,  as  confin- 
ed to  those  narrow  limits.  He  (Mr.  H.)  stood 
there  to  make,  as  far  as  his  feeble  efforts  would 
go,  the  best  Constitution  that  he  was  able  to  de- 


203 


vise.  And  whatever  in  the  old  Constitution 
could  be  improved  by  alteration,  by  the  intro- 
duction of  any  new  principle,  or  the  striking  out 
of  any  thing  now  in  it,  he  felt  it  to  be  his  duty  to 
go  for  it,  whether  ,the  people  had  complained 
of  it  or  not.  We  are  here  to  revise  the  Consti- 
tution— to  make  it  in  our  judgment  so  as  best  to 
promote  the  great  interests  of  the  people.  Now 
what  is  the  office  of  a  Constitution  ?  It  is  to 
provide  the  machinery  by  which  the  people  can 
carry  out  effectively,  the  great  work  of  Sfelf-gov- 
ernment— the  form,  the  mode  of  operation, 
by  which  the  people — the  great  foundation  of 
. ,  in  whom  sovereign  power  naturally  ex- 
,m  carry  out  this  work.  And  when  we 
define  and  prescribe  a  limit  to  delegated  power, 
we  are  then  bringing  ourselves  within  the  prop- 
er office  of  our  great  labor.  But  when  we  un- 
dertake to  prescribe  a  limit  to  the  power  of  the 
sovereign,  then  we  transcend  our  duties.  And 
here  lies  the  great  principle  he  thought  involved 
in  this  question.  We  are  transcending  our  du- 
ties in  prescribing  what  they  shall  and  shall  not 
do.  Therefore  he  coincided  entirely  with  the 
view  taken  by  the  gentleman  from  New  York 
(Mr.  O'CoNOR.)  He  had  listened  with  great 
interest  and  profound  attention  to  the  varied 
arguments  of  learned  and  eloquent  gentle- 
men, who  had  advocated  the  retention 
of  this  proposition  in  the  Constitution. — 
These  arguments  were  urged  with  great  force,  and 
were  he  now  sitting  in  a  nominating  convent  ion 
foi  the  office  of  Governor,  he  should  feel  that  they 
were  sound  and  impressive,  and  he  should  feel  it 
to  be  his  duty  to  be  governed  by  them.  But  we 
are  not  in  that  posiuon,  not  are  our  duties  of  ih<it 
character.  We  aie  simply  to  prescribe  a  form,  a 
rule,  a  machine,  by  which  the  people  can  conveni- 
ently cany  on  their  great  work  of  self-government. 
And'  when  vve  attempt  to  limit  them  in  reference 
to  the  qualifications  of  candidates,  we  go  beyond 
the  power  cjmnaitted  to  our  hands.  His  venera- 
ble friend  from  Dulchess  (Mr.  TALLMADGK)  yes 
terday  seemed  to  deplore  that  the  people  hau  not 
preset ibed  to  us  limits  within  which  we  should 
act.  That  was  a  question  at  the  time  of  the  pas 
sage  of  the  act. — and  there  were  those,  and  ihose 
not  a  !e»v,  who  were  desirous  that  the  action  ol 
this  Convention  should  be  limited  to  certain  par 
ticular  dements  in  the  Constitution,  upon  which 
they  were  to  operate.  The  people  thought  other 
wise — they  sent  us  here  to  reform  the  Constitu- 
— to  make  it  the  best  we  could  tor  theii 

interests and    we    were    nut    to    be    lir^ittd 

in  any  mariner  in  what  the  people  think  it  is  our 
duty  to  do.  He  would  be  allowed  to  refer  for 
.••ut  to  the  apt  illustration  of  the  gentlern:-.n 
Duiciie.ss  ol  yesterday.  He  says  that  if  he 
sends  a  waggon  to  he  repaired,  and  the  mechanic 
teais  it  in  pieces  and  constructs  a  new  one,  tha 
he  was  not  bound  to  take  it  or  to  pay  for  it.  Well 
be  it  so  j  but  let  us  carry  the  illustration  a  littli 
further.  Suppose  the  waggon  was  sent  to  the 
mechanic  to  be  made  as  good  as  mechanical  power 
would  enable  him.  He  sets  about  it— and  makes 
it  as  good  as  new— makes  it  better  than  ever  be 
fore.  He  is  unlimited  in  his  delegation  of  power 
and  under  those  circumstances  sets  about  repair 
ing  it  wherever  he  thinks  it  needed.  We  are  ir 
that  position.  We  are  to  set  about  repairing  th 


Constitution  wherever  we  th.nk  it  needs  improve- 

merit,  and  if  we  think  it  more  consistent  with  the 

emocratic   sentiment   to  strike   out  a   provision 

lere,  or  one  there,  it  was  our  duty  to  do  it — even 

It  hough    it    had  never  been  the  subject  of  com- 

laint.     As  to  the  provision  under  consideration, 

omplaint   or    no   complaint,  it  was   inconsistent 

\-ith  the  great  foundation  principle  on  which  our 

;overnment  rested  ;  and  therefore  he  should  go  to 

ttike  out  the  entire  section. 

Mr.  MARVIN  had  at  first  been  willing  to  take 
he  question  at  once  and  proceed  to  further  busi- 
less  within  the  action  of  the  Convention,  but  as 
he  debate  had  been  continued,  and  differing  as 
ic  did  unfortunately  from  some  of  those  gen-  • 
lemen  who  had  addressed  the  Convention  with 
great  eloquence  and  effect,  and  being  called  upon 
o  vote,  he  deemed  that  he  should  but  ill  dis- 
charge his  duty  if  he  did  not  briefly  state  some 
iews  of  his  own.  Gentlemen  had  gone  back  to 
elementary  principles,  and  had  endeavored  to  as- 
certain under  what  circumstances  we  were  here 
— what  are  our  powers,  and  what  are  the  rela- 
ions  that  we  bear  to  the  people.  And  it  had 
>een  said  by  some  that  we  were  the  mere  repre- 
sentatives of  the  people,  their  mere  agents.  Our 
rue  relations  are,  that  we  are  here  not  only  as 
he  agents  of  the  people,  but  as  part  and  parcel 
>f  the  people.  To  do  what  ?  To  perfect  a  Con- 
ititution — a  fundamental  law  for  the  government 
>f  the  people  themselves,  under  which*they  were 
to  act  and  to  carry  out  the  great  machinery  of  go- 
vernment. And  he  claimed  that  while  sitting 
lere  in  Convention,  that  he  was  one  of  the  peo- 
jle.  He  would  admit  that  he  was  here  in  a  de- 
legated capacity,  but  not  as  agent  authorized  to 
aind  his  constituents  to  any  thing.  He  was  here 
together  with  the  rest  of  the  delegates  from  all  parts 
of  the  State,  meeting  in  council  for  the  purpose 
of  looking  over  the  fundamental  law  and  seeing 
if  we  could  not  make  a  better  arrangement  among 
ourselves  for  our  own  government,  but  he  had 
not  that  delegated  power  which  authorized  him 
to  bind  the  people  to  what  he  did  here.  The  re- 
sult of  our  action  was  to  be  submitted  to  them 
and  then  they  acted  upon  it,  and  he  with 
them  as  one  of  the  people.  It  had  been  said  here 
that  we  had  no  right  to  restrict  the  great  and  ul- 
timate power  of  the  people,  and  that  all  power  in 
a  democratic  government  was  vested  in  them. 
Nobody  denied  that — nobody  denied  but  that 
this  ultimate  power  was  in  the  sovereign  peo- 
ple, but  how  was  it  to  be  exercised — that  was  the 
great  question  ?  It  was  for  that  that  we  met.  here 
in  Convention — to  endeavor  to  make  a  compact, 
to  say  how  this  sovereign  power  should  be  exer- 
cised. If  that  were  so  then  he  would  ask  if  we 
had  not  the  right — if  the  people  had  not  the  right 
— to  establish  just  such  a  government  as  they 
pleased.  He  supposed  that  they  did  possess  that 
right.  It  was  true  that  we  were  very  well  agreed 
in  this  country  as  to  what  kind  of  a  government 
we  would  have,  but  had  the  people  ever  yielded 
the  power  to  establish  any  government  they 
choose  ?  Certainly  not,  except  so  far  as  they  sur- 
rendered their  power  to  the  government  of  the 
United  States.  If  this  be  so,  then  we  came  down 
to  the  question,  as  to  what  kind  of  a  Constitution 
we  will  have,  and  that  brought  him  to  the  point. 
It  seemed  to  him  that  all  were  agreed  on  the  pro- 


204 


position,  that  we  should  have  a  governor  in 
whom  should  be  vested  the  Executive  power. 
The  question  now  was,  should  there  be  any  qua- 
lifications required  of -a  Governor  in  advance  ? — 
Some  said  no — impose  no  trammels  on  the  peo- 
ple. Let  them  select  whom  they  please.  Was 
there  a  gentleman  here  who  was  not  struck  with 
the  good  sense  of  a  remark  of  one  of  the  gentle- 
men from  New  York,  (Mr.  NICOLL,)  in  regard  to 
the  power  of  the  majority.  If  it  had  indeed  come 
to  this,  that  a  majority  acting  together  was  to  ex- 
ercise all  the  power  which  the  whole  people  pos- 
sessed, and  that  without  any  restriction,  without 
any  qualification  or  control,  then  what  kind  of  a  go- 
vernment would  we  have  ?  Now,  to  make  himself 
understood — for  he  was  insisting  here  that  we  had 
the  right,  and  not  only  the  right  but  that  it  was  our 
duty,  to  provide  those  safeguards  which  all  expe- 
rience and  history  has  taught  us  to  be  proper. — 
To  carry  out  his  idea  distinctly,  he  would  suppose 
that  we  were  here  talking  over  this  matter 
in  a  friendly  way,  and  all  alike  desirous  of  estab- 
lishing a  government  that  should  last  for  ever — 
agreeing  upon  the  principle  that  in  all  republican 
governments  the  majority  must  rule  and  that  the 
minority  must  acquiesce.  Well,  say  the  minority, 
we  must  have  some  security,  we  want  you  to 
agree  in  advance  that  we  shall  never  be  deprived 
of  life,  liberty  and  property,  without  due  process 
of  law.  T,he  majority  would  say  that  that  was  a 
reasonable  proposition,  and  would  agree  to  it. — 
Very  well,  was  that  not  a  restriction  upon  the 
power  of  the  people,  upon  the  power  of  the  ma- 
jority ?  He  might  amplify  these  examples,  and 
might  go  through  with  the  whole  category  of  the 
great  rights  of  liberty  and  the  privileges  extorted 
from  King  John  by  the  sturdy  barons  of  England, 
for  their  protection.  And  he  might  take  up  the 
constitution  of  this  State,  of  the  United  States, 
and  of  every  State  in  the  Union,  and  these  res- 
trictions would  be  found  everywhere,  and  every 
where  assented  to  by  the  people.  Well,  we  had 
now  come  to  consider  about  a  Governor.  "  What 
kind  of  a  one  will  you  give  us  ?"  says  one  man  of 
the  minority,  to  resume  the  dialogue.  "  Why,  of 
course,  the  best  one  that  we  can  find,"  says  the 
majority ;"  it  is  for  our  interest  so  to  do."  Says 
the  minority,  "  We  have  no  doubt  of  that  at  all, 
but  let  us  talk  it  over — do  you  want  the  right  to 
elect  any  one  you  please  ?"  Says  the  majority — 
"  Yes,  we  will  exercise  it  prudently."  "  Well," 
replies  the  minority,  "  we  are  not  certain  that 
you  will  do  that;  let  us  come  to  some  understand- 
ing about  it.  It  is  agreed  among  us  all  that 
we  are  embarked  in  the  same  ship,  and  if 
she  is  not  brought  safely  into  port,  and  we 
do  not  have  a  good  commander,  and  all 
that,  we  will  share  our  misfortunes  together,  and 
it' forced,  we  will  all  go  to  the  bottom  together. — 
In  talking  this  matter  over,  ope  man  says,  •«  Well, 
now,  from  all  writers  who  have  written  upon 
man  and  the  physiology  of  man,  and  from  our 
own  experience,  we  know  that  the  judgment  ol 
man  is  not  matured  until  he  has  passed  a  certain 
period  of  his  life."  What  is  that  period!  "I  do 
not  know,"  says  one.  It  is  fixed  by  our  laws  thai 
he  shall  arrive  at  his  majority  at  the  age  of  21." 
"Well,"  says  another,  "  I  do  not  think  that  a 
good  rule."  I  have  read  a  book  which  says  that  a 
inan  ought  to  be  emancipated  at  the  age  of  18 


years.  Another  book  declares  that  in  a  ^reat  na- 
tion a  rr.an  did  not  arrive  lh  majority  until  ha  was 
25  years.  There  was  no  absolute  rule  about  it, 
although  it  was  now  established  all  over  Christ- 
endom that  a  man  should  ariive  at  his  majority  at 
21,  for  certain  purposes.  "  But,"  says  another, 
"  in  order  to  be  vested  with  the  powers  of  Govern- 
or,  we  desire  that  a  man  should  be  somewhat,  old- 
er, because  his  understanding  and  judgment  would 
not  be  fully  ripened  at  the  age  of  21;  we  prefer 
that  hethould  not  be  elected  until  he  h.ad  arrived 
at  the  age  30."  •*  Well,"  say  they,  these  collect- 
ive delegates,  «« that  seems  to  be  reasonable,  and 
to  satisfy  you,  we  will  agree  to  that."  Well, 
have  not  the  people  the  right  to  make  just  such  a 
restriction  as  that,  and  was  it  any  restriction  upon 
their  liberties?  Instances  had  been  given  of  re- 
markable precocity.  Napoleon  Bonaparte  hrid 
been  alluded  to— and  the  gentleman,  (Mr.  HROWJN) 
might  have  gone  further  and  instanced  the  case 
of  Charles  the  XII  of  Sweden.  At  the  age  of  16 
or  17  yeats  of  age,  that  young  prince,  in  witnessing 
a  review  of  the  troops,  exclaimed  that  such  troop* 
ought  not  to  be  governed  by  a  woman.  And  there 
were  enough  of  supple  ministers  who  were  pre- 
pared to  worship  the  rising  star,  instead  oi  the 
setting  luminary— 1<>  get  up  a  conspiracy  to  place 
the  youthful  prince  on  the  throne.  He  might 
have  gone  further  into  the  history  of  that  pnuce, 
and  seen  him  leading  his  people  at  the  head  of 
her  armies,  through  foreign  lands,  and  scenes  o{ 
blood,  never  to  return  to  his  country.  And  he 
should  have  pointed  him  out  in  history  as  one  of 
the  mightiest  captains  the  world  ever  produced. — 
But  what  was  the  fate  of  his  country  ?  It  will  be 
borne  in  mind  lhat  he  never  returned  to  it,  and 
great  as  he  was  as  a  captain,  that  he  did  not  possess 
the  qualities  for  a  wise  ruler,  and  Sweden  ha* 
never  recovered  from  the  blow  she  received 
through  the  errors  of  her  young  sovereign.  He 
would  insist  therefore  that  it  was  judicious  and 
safe  to  preserve  some  of  these  qualifications  and 
restrictions  among  ourselves,  and  it  would  not  be 
an  evidence  of  a  spirit  of  ilUberality  on  theirpart. 
He  submitted  to  his  friend  from  New  Ifork,  (Mr. 
O'CoNOR,)  that  it  was  no  evidence  of  ilhberal- 
ity  on  the  part  of  the  people  in  desiiing,  that 
the  governor  should  be  30  years  of  age  or  that  he 
should  be  born  here.  He  would  not  discuss  the 
question  in  relation  to  the  qualifications  hereto- 
fore required  under  the  Constitution  of  1821,  but 
in  his  judgment  there  was  no  more  a  spirit  of  il- 
liberality,  in  it  than  there  was  in  the  proposition 
to  leave  the  matter  entirely  open.  The  people 
had  a  right  to  choose  whom  they  please — they 
have  if  we  so  make  the  Constitution — if  otherwise 
they  have  not.  That  was  all  there  was  about  it. 
But  how  stood  the  matter  as  to  the  original  ques- 
tion of  propriety.  The  gentleman  from  St.  Law- 
rence proposes  to  strike  out  all  qualifications 
whatever,  and  leave  the  matter  so  that  any  one 
can  be  chosen  governor  by  the  people.  We  were 
told  that  this  would  be  safe,  and  perhaps  it  would 
be.  But  was  there  not  a  principle  involved.  Gen- 
tlemen say  that  we  are  separated  3000  miles  from 
foreign  countries  and  that  there  was  no  danger  of 
interference  from  that  quarter.  All  history  show* 
us  that  in  States  adjoining  each  other,  even  in 
elective  monarchies,  one  source  of  the  greatest 
evils  among  them  has  been  the  intrigues  of  sur- 


205 


rounding  nations.     He  (Mr.   M.)  looked  forward 
to  the  period  when  the  State  of  New  York  should 
number  from  five  to  ten  millions  of  inhabitants — 
and  to  the  period — not  far  distant — when  the  po- 
pulation of  these  United  States  shall  number  two 
hundred  millions— and  to  the  time  when  the  val- 
ley of  the   Mississippi  shall  contain  some  two- 
thirds  or  three-quarters  of  that  population.     He 
looked  forward  to  the  period  when  the  Executive 
of  the  United  States— if  we  go  on  in  the  career 
we  are  now  pursuing — will  be  clothed  with  pow- 
ers that  any  king  in  Europe  might  envy,  let  him 
be  ever  so  ambitious  of  power — and  to  the  period 
when  the  struggles  shall   be  great  in  this  country 
among  men  of  ambition  to  be  clothed  with  these 
vast  powers.     The  State  of  New  York  expressed 
her  views  through  the  Executive — he  was  the  or- 
gan through  which  she  communicated  with  other 
States — and  he  was  so  much  of  a  State  Rights  man 
aa  to  wish  ever  to  see   the  Empire  State  standing 
on  her   own  pedestal   and  her  own  rights.     Now 
some   ambitious  man  may  rise  up,   and  having 
made  his  arrangements,  to  complete  his  purposes 
may  send  his  beloved  son  to  New  York.     He  may 
live  here  but  a  day — may  have  an  understanding 
with  the  ambitious  claimant  for  the  Presidency — 
and  by  an  understanding  with  men  here — he  may 
be  brought  forward  as  a  candidate  for  governor. 
But  it  may  be  said  that  the  people  would  not  elect 
him — arid  that  we  were  all  safe  there.     But  how 
are  our  governors  nominated  and  brought  forward. 
Was  it  not  known  that  the  power  in  this  partic- 
ular was   always  in   the    hands    of   some    few 
individuals    here    or    elsewhere.      These    men 
might    have    this    understanding   with     (tie    fir 
man— and   ail  who  aie  acquainted  with  ihe  cor- 
rupting influence  of  party  politics,  know  this  to  be 
easy — they  may  bring  forward  his  son  and  induce 
the  people  to  elect  him,  und  thus  would  theinflu 
ence  ol  this  State  be  secured.    He  (Mr.  M.)  wouk 
adn.it  that  this  manner  of  supposing  cases  was  no 
d  very  good  way  of  arguing,  but  it  was  an  evidenc* 
that  there  might  dangers  arise   Irom   leaving  ihi; 
matter  unrestricted,  which  would  be  fully  guard 
ed  against  by  the   restrictions.      It    was  genera 
ROOT — and  he   presumed   nobody  would  deny  hi: 
democracy — whomadethe  motion  in  the  last  Con 
mention,  to  fix  the  age  at  30  years.     The  Stale  o 
Michigan,  referred  to,  was  an  unfortunate  illustra 
tiou  lor  the  side  it  was  adduced.     Were  gemleinei 
aware   of  the   circumstances  connected  with  the 
fcdininisiration  of  her  young  Governor  ?     He  wa 
there  as  Governor  ol  the  Territorial  Government 
under  the  authority  of  the  President,  to  whom  he 
was  hound  to  report,  and  acting  there,  in  point  o 
fact,  as  the  representative  of  the  general  govern 
oient.    Difficulties  had  arisen  between  Michiga 
and  Ohio,  in  relation  to  a  question  ot  boundary — 
and  this  young   Governor  wrote   articles  arid    -A\ 
peals   to  the  pride   and  patriotism  of  Michigan — 
and  finally  led    her  troops  and  rode   down  to  th 
mouth  ot  the  Maumee,    to  whip  the  J3uck  Eyes 
Well,  the   State   Government   was   formed,    an 
iu  the  Constitution  this  restriction  was    left  ou 
for  the  very  purpose,  perhaps,  of  enabling  fh<w 
who  hail  ihe  control  of  the  machinery  of  g< 
*»rnment    in    their    hands,  to    making  this  youn 
Didu  the  first  Governor.      He  was  thus  chosen,  an 
.t    followed?      Summon   to   the   stand    thos 
»ijo  acted   with   him,  a  phalanx  ot  young  me: 


lost  of  them  from  the  State  of  New-York,  many 
f  whom  he   (Mr.  M  )  knew  personally,  and  you 
ould  find  them  a  visionary  knot  of  schemers. — 
Vhy  they  located  banks — where  the  foot  ol  man 
efore    had  never  trod.     They   put  them  in   the 
ollow  trees  even — the  homes  of  the  wild  cats — 
nd  hence  the  term    wild  cat   bank.     The    whole 
ountry  was  full  of  it,  and  Michigan  still  suffers 
rom  its  effects ;   and  was  she  not  compelled,  to 
be  deep  regret  of  her  honest  citizens,  even   to 
epudiate,  in  consequence  of  the  course  of  her 
oung  Governor  and  his  associates    And  these  last 
11  fell  with  him  when  his  wild  career  was  run. 
e  hoped  therefore   we   should  derive   a  little 
knowledge  from  that  sad  experience,  and  require 
hat  our  Governor  should  possess  some  of  the 
unifications  of  age.     Mr.  M.  again  repeated  that 
t  would  be    no    restriction    on    the  rights    of 
he  people.     He  was  willing  to  yield  that  the 
word  native  should  be  stricken  out,  but  he  asked 
hat  the  remainder  of  the  qualifications  might  be 
etained  in    its  original    form.      Or    otherwise, 
hat  the    provision    in  the    New    Jersey  Con- 
ititution,    that  the  Governor  should  have  been 
.werity  years  a  citizen   ot  the  United  Slates,  and 
of  the  State  for   seven   years,  should   be  adopted, 
ie  would  refer  gentlemen,  in  answer   to  some  of 
he  arguments  on  the  other  side,  to  the  Delaration 
)f  Independence,   in   effect  that  the  people — the 
governed— in   organizing   their  government,  and 
rescnbing  qualifications  for  office,  acted  for  them- 
selves and   for  their   mutual  protection.     Under 
hat  rule  he  was  willing  to  meet  gentlemen  here. 
[t  was  no  great    hardship  either  for  a  man  to  wait 
until    he    was  thirty    years;  for,  although    pre. 
vious  to   that  he  may  Lave  displayed  every  attri- 
bute of  genius,  still  when  that  time  arrived, it  might 
be  found  that  he  was  lacking  in  that  sound  judgment 
and    experience    we  require   of  a  Governor.     He 
hoped  therefore  that  this  section  would  be  suffered 
to  stand  as  it   is,  with  simply  the   word  "  native" 
stricken  out,   or  else   that  the   provision   of  the 
New  Jersey  Constitution  would  be  adopted. 

Mr.  WORDEN  said  that  he  regretted  to  hear 
gentlemen  say  that  a  question  of  this  kind  had  bet- 
ter  be  taken  without  any  great  debate  or  discus- 
sion, for  if  they  were  to  divide  on  any  great 
question  of  principle  or  public  policy,  it  was  proper 
that  the  dividing  line  should  be  clear  and  distinct- 
ly defined.  Now  he  could  not  regard  this  ques- 
tion as  involving  merely  the  consideration  whe- 
ther a  young  man  under  (he  age  of  30,  shall  be 
elected  Governor  of  this  State;  or  whether  a  resi- 
dence of  five  years  was  requisite  for  a  candidate 
tor  Governorship;  he  regarded  it  as  involving  a 
great  and  fundamental  principle  totally  distinct 
from  these  two  considerations.  It  was  whether 
in  reference  to  the  formation  of  a  constitution,  and 
the  organization  of  a  democratic  republican  gov. 
ernment,  the  people  were  capable  of  being  en- 
tru.-,ted  with  the  right  of  judging  whether  a  man 
under  30  years  of  age  or  one  over  that  age  is  a  fit 
and  proper  man  u  serve  them  in  this  office.  That 
was  the  question,  and  the  only  one  involved  in  this 
discussion.  Now,  gentlemen  seemed  to  forget 
that  when  they  put  it  on  the  ground  which  they 
did,  they  involved  themselves— he  would  not  say 
in  an  absurdity— but  fie  would  say  that  their  pro. 
position  entirely  failed  when  it  came  to  be  practi- 
cally applied.  Their  arguments  also  were  faUe, 


206 


when  they  came  to  give  them  a  practical  applica- 
tion. It  was  said  you  must  not  elect  a  man  under 
30  years,  because  in  all  human  probability  he  will 
be  incapable  of  discharging  the  duties  of  his  of. 
fice,  and  therefore  the  people  should  be  guarded 
against  what  on  their  part  might  be  an  act  of  in- 
discretion. He  would  concede,  if  they  pleased, 
that  it  would  be  highly  indiscreet  to  elect  a  young 
man  under  30  years  of  age,  but  he  held  that  it  was 
equally  indiscreet,  nay  more  so,  to  elect  a  super- 
annuated old  dotard  of  over  80.  Then  why  not, 
if  we  undertook  to  limit  and  control  and  tie  up 
the  public  judgment,  in  the  one  case,  why  not  in 
the  other?  There  much  more  danger  to  be  ap- 
prehended in  electing  a  man  whose  powers  of 
mind  have  left  him — whose  judgment  and  capacity 
are  destroyed  by  age— than  in  electing  one  who 
has  not  arrived  at  the  years  of  discretion.  Was 
it  to  be  supposed  that  any  man  from  any  quarter 
could  receive  the  vote  of  the  people  of  this  State 
until  he  had  exhibited  himself  in  some  public  ca- 
pacity, and  shown  t<>  the  people  that  he  was  ca- 
pable. It  was  an  absurdity  to  say  that  such  an 
event  could  take  place.  It  was  an  impeachment 
of  the  public  intelligence  to  suppose  thijt  the  peo- 
pie  were  ever  to  elect  a  chief  magistrate  unless  he 
had  in  various  ways  and  by  public  employments 
shown  his  fitness  and  capacity.  On  the  other  hand, 
the  case  does  not  admit  of  the  same  safeguards. — 
He  would  take  a  distinguished  man,  who  had  oc- 
cupied high  office  in  this  Slate — a  man  who  had 
exhibited  himself  abundantly  qualified  for  any 
trust ;  but  who  like  others  had  fallen  into  the  sere 
and  yellow  leaf,  become  stricken  by  age,and  his  fac- 
ulties become  impaired.  But  such  a  man  goes  be- 
tore  the  public  with  all  the  brilliancy  of  his  for- 
mer career,  and  the  public  mind  would  not  per- 
haps be  drawn  to  the  fact  that  all  his  capacities 
for  public  usefulness  had  been  destroyed.  There 
vras  then  more  danger  of  a  superannuated  old  man 
being  elected  than  an  "  indiscreet  raw  boy"  as  his 
friend  from  Essex  (Mr.  SIMMONS,)  had  complained. 
If  then,  a  proposition  was  to  be  incorpoiated  into 
the  Constitution  to  remedy  any  apprehended  dan- 
gerfrom  this  source,  let  it  be  consistent,  and  pre- 
scribe the  period  beyond  which  the  people  should 
not  elect,'and  when  the  candidate  should  be  in- 
competent. Now  he  had  seen  in  some  constitutions 
the  qualification  which  he  had  intimated — that  no 
man  over  a  certain  age  should  be  elected  governor. 
And  if  this  principle  was  to  be  applied  to  the  of- 
fice of  Governor,  then  let  us  be  consistent,  and  do 
not  let  it  stand  as  a  mere  theory  in  the  constitu- 
tion. Did  any  gentleman  propose  to  apply  it  to 
the  office  of  lieutenant  governor  ?  And  yet  what 
had  we  seen  in  this  State?  He  did  not  mention 
the  fact  by  way  of  complaining  of  it  by  any 
means;  but  we  had  seen  a  gentleman  of  great 
and  distinguished  ability  elected  chief  magistrate, 
and  within  three  weeks  resign  his  office,  and  we 
had  seen  an  individual  coming  into  the  exercise  of 
the  duties  ot  chief  magistrate,  whom  he  would 
admit  wa<  of  equally  distinguished  ability.  The 
case  might  occur  again,  and  thfe  individual  might 
not  have  the  qualifications  it  was  now  proposed  to 
require,  and  would  it  not  be  inconsistent  then  to 
say  that  a  governor  shall  have  certain  qualifica- 
tions, without  imposing  the  same  restrictions  on 
the  lieutenant  governor,  or  any  one  who  ever 
might  succeed  to  that  station  ?  Some  gentlemen 


without  arguing  on  the  piopriety  of  such  restric- 
tions, had  contented  themselves  with  referring  to 
the  constitutions  of  other  states;  and  because 
they  found  some  such  provisions  in  the  constitu- 
tions of  other  Stales, they  were  willing  to  incor- 
porate them  in  that  of  our  own.  He  had  looked 
into  some  of  the  constitutions  of  other  states  also, 
and  he  found  provisions  in  them  that  he  never  de- 
sired to  see  incoporated  here.  And  yet  if  gentle- 
men should  be  disposed  to  incorporate  ihehi,  they 
would  probably  argue  fiom  the  fact  that  they 
were  incorporated  in  constitutions  of  other  states, 
and  therefore  being  prescribed  by  the  wisdom  of 
their  ancestors  and  by  those  who  had  gone  before 
them,  they  ought  to  be  in  the  constitution  ol  this 
State.  On  looking  through  the  more  modern  con- 
stitutions, he  found  no  such  qualification  as  that 
now  proposed  to  be  retained  here.  Another  gen- 
tleman had  said  that  he  would  leave  as  much  as  he 
could  untouched  in  the  constitution;  and  said  that 
we  might  as  well  determine  in  the  outset  how 
much  of  the  old  instrument  is  to  be  swept  away. 
The  people  had  sent  us  here  to  sweep  away  as  ma. 
ny  absurdities  as  we  found  in  it,  and  to  conform  it 
to  the  spirit  of  the  age,  and  the  advanced  intelli- 
gence of  the  public  mind  ;  and  if  we  found  any 
provision  in  it  incompatible  with  that  pubjic  in* 
telligence,  the  people  sent  us  here  to  strike  it  out. 
Some  gentlemen  had  said  there  boldly,  that  no 
complaint  had  been  uttered  against  this  clause — 
until  the  question  was  discussed  here.  Now,  he 
had  never  heard  any  intelligent  gentleman  speak 
ofthis  second  section  without  condemning  it  as 
senseless  and  unmeaning.  Within  the  last  four 
years  it  had  been  amended  in  one  particular,  and 
when  it  was  under  consideration  in  1845  in  the 
legislature  of  this  Stale,  every  gentleman  who 
spoke  in  reference  to  it,  without  distinction  of  par- 
ty, only  regretted  that  the  amendment  had  not 
gone  to  the  whole  clause — and  one  without  a 
qualifying  or  dissenting  voice — every  man  he  had 
heard  express  an  opinion  on  that  section — unequi- 
vocally condemned  it.  In  the  old  clause  there  was 
a  property  qualification,  but  that  was  stricken  out 
by  the  amendment  of  1844,  which  was  latified  in 
1845,  and  the  legislature  by  which  the  second 
vote  was  given  only  regretted  that  it  had  not  an 
.opportunity  to  submit  to  the  people  whether  the 
whole  section  ought  not  logo.  Hiscolleague  had 
found  the  principle  of  this  restriction  in  the  de- 
mocratic doctrine  of '98.  He  trusted  his  friend 
was  not  prepared  to  rest  himself  on  the  democrat- 
ic doctrine  of  '98  and  the  theory  which  governed 
and  controlled  at  that  day.  He  really  hoped 
his  friend  had  come  down  to  the  democratic 
creed  of  '46,  and  was  not  going  to  rest  him- 
self on  the  old  doctrine  of  '98,  and  to  form 
a  constitution  and  government  upon  it  that 
was  to  control  us  to-day.  Why  it  was  then 
sound  democratic  doctrine,  as  then  understood, 
that  a  property  qualification  was  necessary  to 
enable  a  man  to  vote  for  the  office  of  governor. — 
But  since  then,  we  have  made  advances  in  the 
science  of  civil  government;  the  public  mind  has 
progressed  on  that  subject,  and  has  become  more 
intelligent,  and  the  people  are  now  better  able 
than  they  were  then  to  discharge  the  high  du- 
ties of  administering,  directing  and  controling 
their  government.  Every  argument  that  hag 
been  brought  forward  to  show  that  there  should 


207 


be  a  restriction  of  this  character  in  the  Consti- 
tution, goes  with  equal  force  to  show  that  the 
people  are  incapable  of  electing  a  governor  when 
he  has  been  nominated.  It  all  rested  upon  the 
Assumption  that  the  people  will  misjudge  in  the 
lion  of  a  candidate — and  that  if  left  unre- 
strained in  their  choice  they  will  fall  into  the 
absurdity  of  electing  some  man  under  thirty 
years  of  age,  incompetent  to  discharge  the  duties 
of  the  office,  and  that  therefore  they  should  not 
have  the  opportunity  to  do  so.  Now  if  there  was 
any  thing  in  the  argument  that  the  people  were 
not  capable  of  discriminating  between  a  young 
man  under  thirty  and  one  over  thirty  years  of  age, 
then  they  certainly  would  not  be  capable  of  dis- 
criminating and  judging  between  any  man  who 
be  nominated,  and  if  there  was  anything  in  the 
did  not  think  there  was 
equal  force  to  the  voting 


government — so  much  so  as  to  gain  the  unquali- 
fied approbation  of  the  people  of  this  entire  state. 
But  unfortunately  he  belongs  to  the  party  to  which 
he  (Mr.  WORDEN )  belonged — a  party  that  is  al- 
ways in  a  minority  in  this  State,  or  a  great  por- 
tion of  the  time.  But  he  might  propose  to  nom- 
inate him  for  the  high  office  of  Governor,  know- 
ing that  there  were  enough  of  the  political  asso- 
ciates of  his  friend  from  New- York,  who  in  view 
of  his  distinguished  services,  great  fitness  and 
qualifications  for  the  office  would  vote  for 
him ;  but  unfortunately  his  friend  from  New- 
York  belonging  to  an  irresponsible  majority 
under  the  cloak  and  cover  of  the  constitution, 
exercised  that  very  despotic  power  whicn  prevents 
him  and  his  friend*  from  puuing  his  candidate  in 
a  position  to  obtain  the  votes  of" a  majority  of  the 
people  of  the  Slate.  The  gentleman  would  see 
then  that  his  principle  could  not  be  carried  out. 
Gentlemen  had  adverte-1  to  ether  fads  and  argu 


merits  to  illustrate  their  positions,  in  all  of  which 
they  did  not  seem  to  distinguish  between  elemen- 


tary sovereign  power  and  delegated  power.  He 
apprehended  when  we  came  to  form  a  Constitu- 
tion we  came  to  make  a  compact,  a  conventional 
agreement  under  which  we  will  live — and  that 
agreement  in  itsdetails  constituted  the  tnachmery 
of  government ;  the  delegated  power  we  will  con- 
fer, in  the  various  departments  of  the  government. 
AH  these  were  arbitrary  rules  and  conventional 
agreements  entered  into  on  the  expediency  of 
things  and  not  on  any  ground  of  principle,  but 
when  we  came  to  givo  application  to  it — to  apply 
(he  motive  power  that  set  it  in  motion — we  will 
find  a  different  element  in  the  sovereignty,  the  el- 
ementary power  of  the  State,  the  people,  the  po- 
pular will.  Now  it  was  behind  the  intelligence 
of  the  age,  it  was  certainly  not  up  to  the  intelli- 
gence of  the  age,  to  undertake  to  say  the  popular 
will  shall  be  restrained — 
checks  and  curbs  to  it, 


that    it    shall    have 
as     stated     by    the 


argument — and   he 
— it  applied    with 

for  candidates  nominated,  for  if  they  could 
not  select  understandingly  they  could  not  vote 
understandingly  when  they  had  been  selected. 
His  friend  from  New- York  (Mr.  NICOL.L,)  had  in 
admirable  language  and  temper  drawn  tour  atten- 
tion to  the  great  principles  of  government,  that  it 
was  not  a  majority  that  should  dictate  but  the 
whole  people  ;  and  he  argued  (and  his  argument 
made  a  deep  impression  on  the  committee,)  that 
it  was  necessary  to  retain  this  clause  because  a 
majority  might  force  on  the  state  a  young  man 
under  30,  contrary  to  the  will  of  the  minority. — 
Now  he  asked  the  gentleman  from  New- York"  if  a 
majority  has  not  forced  on  the  minority — himself 
amongst  the  number — a  Governor  altogether  con- 
trary to  his  choice  and  selection  ?  Could  the  gen- 
tleman then  discriminate  between  one  case  and 
another — between  inflicting  on  them  a  Governor 
over  30  years  whom  we  would  not  desire  to  elect, 
and  one  under  30  whom  we  would  elect  ?  But 
he  would  show  the  gentleman  from  New- York 
how  his  proposition  if  carried  out,  would  work  a 
more  perfect  tyranny  than  even  he  supposed  the 
majority  might  exercise.  He  would  suppose  that 
a  man  had  rendered  some  distinguished  service  to 
the  people  of  the  state,  and  had  evinced  in  the 
rendition  of  those  services  abundant  capacity  for 
the  discharge  of  any  public  duty,  and  abundant 
knowledge  ot  the  theory  and  principles  of  the-  subjects,  or  those  whom  he  has  the  power  to 


yentleman  from  New  York  (Mr.  MORRIS)  — 
These  checks  are  proper  in  that  department  of 
government,  which  exercises  so  much  of  delega- 
ted power  as  to  require  the  control  of  any  other 
department.  In  that  sense  and  application,  it 
was,  that  he  understood  the  term  checks  and  bal- 
ances to  be  applied  ;  but  it  was  a  novel  doctrine 
brought  forward  here — he  ventured  to  say  for  the 
first  time  in  the  whole  history  of  the  government 
— that  in  the  formation  of  a  government,  checks 
and  guards  should  be  placed  upon  the  exercise  of 
the  popular  will.  We  have  gone  by  that,  and  it 
is  too  late  to  return  to  it  again.  There  was  a 
time  when  we  did  impose  some  checks,  and 
guards  were  placed  on  the  exercise  of  the  popu- 
lar power  by  requiring  property  and  other  artifi- 
cial qualifications  to  distinguish  those  who  should 
exercise  the  sovereign  power.  But  it  was  too 
late,  he  trusted,  to  return  to  that  artificial 


mode  of 

ry  sovereignty 

the 

popul 


regulating  t 
:igntv  of  the 


the  exercise  of  the  elementa- 
land.     We  have  abandoned 


principle  of  putting  checks  and  guards  on  the 
ular  will.  Some  gentlemen  had  said  the  peo- 
ple should  be  restrained  in  this  respect,  because 
in  times  of  popular  excitement,  they  misjudge. — 
Now,  he  submitted  to  those  who  advanced  this 
argument,  that  it  was  the  very  argument  by 
which  every  despot  on  earth  would  restrain  his 


keep  from  the  exercise  of  popular  rights — and  it 
was  the  argument  which  had  securely  kept  des- 
pots on  their  thrones  for  ages  and  prevented  men 
from  exercising  those  political  rights  which  God 
intended  them  to  possess.  It  was  the  very  frame 
work  and  structure  that  supported  despotism  in  the 
world.  Now,  he  wished  to  see  the  government 
here  without  any  sort  of  reference  to  a  principle 
or  idea  like  this!  He  regarded  but  one  conserv- 
ative power  that  was  capable  of  controlling  and 
checking  the  power  of  the  government — and  that 
was  the  popular  will ;  and  when  gentlemen  will 
be  wise  enough — for  it  is  wisdom,*  and  the  high- 
est attribute  of  wisdom — to  acknowledge  the  prin- 
ciple, we  shall  have  a  conservative  power  in  this 
government  that  will  conduct  it  prosperously.  But 
if  they  resorted  to  artificial  expedients,  or  provid- 
ed for  classes  which  were  tobe  clothed  with  some- 
thing like  elementary  power,  as  checks  on  the 
rest,  so  long  would  they  deprive  us  of  the  benefit 
that  would  result  from  the  enjightened  action  of 
the  public  will.  Suppose  they  should,  in  firm- 


208 


ing  this  class,  introduce  the  word  "native"  as  a 
restriction  in  the  Constitution,  and  submit  it  to 
the  people  for  consideration,  did  they  apprehend 
they  would  be  likely  to  get  from  the  people  their 
clear,  unbiassed  intelligent  judgment  on  such  a 
provision  of  a  Constitution.  No;  they  would 
not  be  likely  to  arrive  at  any  such  result.  It 
would  be^ placing  in  the  hands  of  every  dema- 
gogue in  the  land  a  power,  a  weapon,  by  which 
he  could  disturb  the  public  sentiment  and  the 
judgment  of  the  community.  The  public  atten- 
tion would  be  turned  from  the  consideration  of 
the  more  important  affairs  of  this  Convention  by 
agitating  this  very  unimportant  and  useless  provis- 
ion. He  desired  to  see  the  Constitution  framed  so 
as  to  leave  the  public  mind  and  will  to  its  free  and 
unrestricted  action,  so  that  nothing  might  inter- 
vene between  that  action  and  the  calm  considera- 
tion of  the  constitution  we  may  submit  to  them, 
and  the  action  of  the  government  that  may  be 
formed  under  that  constitution.  When  they  should 
corne  to  this  and  act  upon  this  principle,  they 
would  act  wisely,  and  they  would  frame  a  govern- 
ment whose  administration  would  be  metre  likely 
to  be  controlled  by  the  sound  sense  of  the  popular 
mind.  His  friend  from  Chautauque  (Mr.  MAR- 
VIN) had  adverted  to  the  great  fundamental  pro- 
vision contained  in  the  Declaration  of  Indepen- 
dence—  that  all  power  is  derived  from  the  consen- 
ts the  governed  ;  but  how  did  that  principle  ap 
ply  to  this  provision,  that  no  man  under  30  years 
of  age  shall  have  any  power  in  the  adminisiration 
of  the  government?  Was  there  not  much  of 
efficient  power  of  this  government  in  the  class 
under  30  years,  and  would  they  consent  to  the  for- 
mation ol  this  restriction  which  which  will  ex 
elude  them  from  the  administration  ot  public  af- 
fairs. Would  they  get  a  government  ""with  the 
consent  of  the  governed'  which  disfranchised  one 
portion  of  the  constituency ,or  governed  them  con- 
trary to  their  will?  Certainly  not.  The  ver> 
proposition 'the  gentleman  advocated  violates  the 
principle  he  brings  to  sustain  it.  He  would  have 
been  content  himself  in  regard  to  the  second  sec- 
tion, if  the  committee  that  brought  it  forward  had 
simply  stricken  out  the  word  '•  native"  and  the 
age  which  was  prescribed — he  would  be  content 
to  let  it  stand  as  probably  it  will  stand  when  the 
vote  is  taken  on  it  and  on  the  proposition  of  his 
friend  from  St.  Lawrence.  He  had  too  great  re- 
gard for  the  public  intelligence  to  suppose  that 
any  party  would  bring  forward  a  candidate  who 
had  not  resided  here  five  years.  ' 

Mr.  WARD  rose  to  a  question  of  oider.  The 
question  befoie  the  Convention  wag  .  n  animaied 
one,  and  he  hoped  gentlemen  would  hereafter  re- 
strict themselves  to  the  discussion  of  that  alone. 

The  CHAIRMAN  then  stated  the  question  to 
be  on  the  amendment  of  the  gentleman  from  St. 
Lawrence. 

Mr.  W.  TAYLOR  said  that  to  obviate  an  ob- 
jection which  had  been  raised  to  that  amendment, 
he  would  offer  the  following: 

No  person  who  does  not  possess  the  qualifications  of  an 
elector,  other  than  residence  in  the  town  or  county,  shall 
be  eligible  to  the  office  of  governor. 

On  motion  of  Mr.  MURPHY  the  committee  rose 
and  reported  progress,  and  then 

The  Convention  adj.  to  II  o'clock  to-morro\N 
morning* 


WEDNESDAY,  (21th  day)  July  1 . 

Prayer  by  the  Rev.  DI-^WYCKOFF. 
ADJOURNMENT. 

Mr.  ANGELL  rose  and  offered  a  resolution 
that  when  the  Convention  adjourn  to  morrow  f 
(Thursday,  July  2,)  it  should  adjourn  to  Tues- 
day next,  July  7th  ;  and  that  it  shall  thereafter 
meet  at  10  o'clock,  A.  M. 

This  wras  carried  almost  unanimously. 

Mr.  CHATFIELD  moved  to  amend  the  19th 
standing  rule,  so  that  the  tnree  days  notice  of  in- 
tention to  move  a  reconsideration  of  any  subject 
should  not  apply  in  committee  of  the  whole. 

He  made  this  motion  because  he  believed  that 
it  was  an  omission  on  the  part  of  the  committee 
which  reported  the  rules.  He  desired  to  give  to 
the  committee  of  the  whole  the  fullest  liberty  to 
reconsider  their  acts,  and  he  supposed  it  was  not 
intended  by  the  committee  to  impose  any  restrict- 
tion.  Agreed  to. 

Mr.  STRONG  moved  that  Mr.  DANA  have 
leave  of  absence  from  Friday  next  to  Wednesday 
next,  both  days  inclusive. 

ABOLITION  OF  BOARDS  OF  SUPERVISORS. 
Mr.  CROOKER  offered  the  following,  which 
was  adopted  : 

Resolved,  Tliat  committee  No.  7,  be  directed  to  enquire 
into  the  propriety  and  expediency  of  abolishing  the  offices 
of  Supervisor;  and  of  conferring  the  powers  exercised  by 
the  Boards  of  Supervisors,  upon  some  less  numerous  and 
less  expensive  body. 

AN  ADDITIONAL   SECRETARY. 

Mr.  WILLARD  offered  a  resolution  that  Mr. 
BEARDSLEY  be  appointed  an  additional  Secretary 
to  this  Convention,  and  that  he  have  charge  of  the 
Library  and  the  delivering  of  the  stationery  as 
heretofore.  Mr.  W.  said  that  up  to  the  present 
time,  Mr.  BEARDSLEY  had  attended  very  punc- 
tually on  the  members  of  the  Convention,  and 
had  most  diligently  and  efficiently  discharged  the 
duties  of  the  position  to  which  the  Convention 
had  appointed  him.  But  still,  under  the  act  call- 
ing the  Convention,  there  was  no  authority  vest- 
ed in  them,  to  appoint  a  Librarian,  and  conse- 
quently there  was  no  authority  for  the  Comptrol- 
ler to  remunerate  Mr.  Beardsley  for  the  efficient 
services  he  was  rendering  the  Convention.  And 
it  was  on  this  occount,  and  to  remedy  this,  that  he 
(Mr.  W.)  had  offered  this  resolution. 

Mr.  PATTERSON  said  that  tne  gentleman 
from  Albany  (Mr.  WILLARD)  would  not  effect 
the  object  he  appeared  to  have  in  view  by  the 
passage  of  the  resolution  in  in  its  present  form  j 
that  is,  to  have  Mr.  Beardsley  paid  for  the  effi- 
cient services  which  he  has  been  rendering  to  the 
Convention  for  the  past  four  or  five  weeks.  The 
Comptroller  considers  that  he  is  not  authorised  to 
draw  his  warrant  for  the  pay  of  Mr.  Beardsley, 
whilst  acting  as  Librarian  to  the  Convention,  be- 
cause the  Convention  had  no  power  or  authority 
to  appoint  a  Librarian  ;  but  that  he  would  be  au- 
thorised to  draw  his  warrant  for  his  pay,  if  he  was 
appointed  one  of  the  Secretaries  of  the  Conven- 
tion. And  if  he  is  merely  appointed  as  a  Secre- 
ta^y  from  this  time  out,  according  to  this  resolu- 
tion, he  cannot  draw  his  back  pay  for  the  time  he 
had  been  acting  as  Librarian.  He  would  there- 
fore suggest  an  amendment  to  remedy  the  defect 

Mr,  P.  then  modified  the  resolution  as  to  make 


209 


it  read,  that  Mr.  BEARDSLTCY,  shall  be  deemed  to 
have  been  acting  as  an  additional  Secretary  since 
the  first  day  of  June  last. 

The  resolution  thus  modified  was  then  put  and 
carried. 

On  motion  of  Mr.  WARD  the  Convention  then 
went  into  committee  of  the  whole  on  the 
REPORT  ON  THE  POWERS  AND  DUTIES  OF  THE 
KXKCUTIVE. 

Mr.  CHATFIELD  resumed  the  Chair. 

Mr.  MURPHY  was  entitled   to  the  floor  from 
yester 

Mr.  MURPHY  said  that  although  he  consider- 
ed the  principle  involved  in  the  question  now  be- 
fore the  committee  as  a  very  important  one,  in 
view  of  the  further  action  of  the  Convention,  he 
would  yield  the  floor,  and  waive  any  remarks  if 
it  were  the  desire  of  the  committee  to  take  the 
question.  [Many  voices,  **  go  on."]  Mr.  M. 
proceeded.  In  submitting  the  other  day  the  mo- 
tion to  strike  out  the  word  "  Native"  from  the 
section  as  reported,  he  stated  that  he  would  fol- 
low it  up,  if  it  prevailed,  with  a  further  amend- 
ment abolishing  all  distinction  between  the  qual- 
ifications of  electors  and  elected,  which  would  be 
the  case  if  the  section  were  stricken  out  altogeth- 
He  had.  however,  been  anticipated  in  mak- 
ing such  an  amendment  by  others.  He  had  "  set 
the  ball  in  motion"  but  he  had  not  been  left 
"  solitary  and  alone."  Gentlemen  had  come  up 
gallantly  to  this  attack  upon  the  last  foothold  of 
popular  restriction,  from  all  parts  of  the  state, 
and  from  all  parties  and  sections  in  this  hall ;  but 
the  ground  had  been  contested  inch  by  inch, by  oth- 
ers of  great  talent,  experience,  and  learning.  He 
therefore  hoped  that  he  might  be  indulged  in  a  few 
remarks  in  reply  to  objections  which  had  been  ur- 
ged against  the  proposition  under  consideration. 
We  are  met  at  the  threshold  with  the  objectionthat 
we  have  no  rigiitto  make  alterations  of  this  kind, 
and  are  confined  to  remedying  such  defects  as  had 
been  pointed  out  in  popular  and  legislative  dis- 
cussions. In  reply  to  this,  he  would  ask  where 
do  gentlemen  find  a  warrant  for  the  position  ? — 
Certainly  not  in  the  act  under  which  this  conven- 
tion was  legalized  ;  for  that  authorizes  us  to  re- 
vise the  constitution, — not  a  part,  but  the  whole 
of  it,  in  such  manner  as  we  may  deem  conducive 
to  the  interests  and  welfare  of  the  commonwealth. 
Certainly  not  in  any  popular  expression  ;  for  no 
one  will  pretend  that  any  such  has  been  formally 
made,  and  as  to  what  may  have  been  the  motives 
of  voters,  nothing  can  be  known.  They  were 
undoubtedly  various.  In  this  matter,  therefore, 
each  member  representing  an  independent  con- 
stituency must  judge  for  himself;  and  he  there- 
fore denied  the  right  of  any  one  to  question  the 
action  of  a  majority  of  this  Convention  on  any 
alteration  which  they  might  propose  of  the  pre- 
sent Constitution.  *It  is  sufficient  that  we  are 
here  to  revise  it.  Having  possession  of  the  sub- 
ject matter  we  must  treat  it  according  as  our 
judgments  dictate.  He  was  not  one  who  believed 
that  every  change  was  reform.  He  wished  to 
stand  by  the  old  landmarks,  and  depart  from  them 
only  when  it  was  necessary  ;  but  when  it  was  ne- 
cessary to  depart  from  them,  he  would  have  no 
hesitation  in  doing  so— else  he  would  not  be  here. 

the  present  constitution  were   perfect,   there 
was  no  necessity  of  this  Convention.     If  we  find 


in  it  either  a  defect  in  the  working  of  the  system, 
or  a  conflict  with  principle,  it  is  not  only  our 
right  but  our  duty  to  correct  the  one  and  remove 
the  other,  even  though  the  public  mind  may  not 
have  been  directed  to  it.  Government  is  not 
an  exact  science.  It  is  eminently  an  impro- 
ving and  experimental  one.  We  must  adapt  it 
to  the  change  of  circumstances  which  we  find 
continually  taking  place  around  us,  in  the  physi- 
cal and  material  world.  We  are  engaged  in  re- 
volution, peaceful  and  bloodless,  but  still  a  revo- 
lution :  we  are  seeking  to  establish  one  govern- 
ment on  the  subversion  of  another.  For  his  part 
he  desired  to  see  even  such  revolutions  but  seldom . 
The  way  to  avoid  them,  was  to  make  our  work 
now  as  perfect  as  our  judgment  will  enable  us  to 
do :  we  might  even  anticipate  a  little  ;  for  he  re- 
garded the  stability  and  continuance  of  any  sys- 
tem which  maybe  adopted,  as  very  desirable.  In 
his  opinion,  this  unrestrained  examination  was 
expected  from  us,  on  all  sides.  Why  were  our 
tables  daily  groaning  under  the  load  of  communi- 
cations, pamphlets,  and  newspapers,  from  our 
constituents,  and  from  the  friends  of  reform  in 
other  States  ? — and  why  was  it  that  we  had  lec- 
tures upon  the  subject  of  our  labors,  from  a  gen- 
tleman who  had  travelled  hundreds  of  miles  for 
that  purpose,  if  it  were  not  that  the  eyes  of  the 
friends  of  human  improvement  were  turned 
towards  us  from  all  parts  of  the  world  ?  The 
population,  wealth,  resources,  and  intelligence  of 
the  State  of  New- York,  gave  her  a  prominence 
in  the  Confederacy,  acknowledged  by  all  here,  at 
least.  The  great  principles  which  have  been 
discussed  since  the  present  Constitution  was 
framed,  and  which  have  been  developed  through 
the  inquiring  spirit  of  the  age,  quickened  by  its 
wonderful  facilities  of  intercourse,  and  of  the 
transmission  of  intelligence,  must  here  receive 
form  and  vitality.  The  current  of  reform,  thorough 
and  radical  reform,  is  irresistible.  All  attempts  to 
prevent  it  are  futile,and  those  who  make  them,seek 
but  to  strangle  the  infant  Hercules  in  his  cradle. 
He  would  pass  from  this  formal  objection  to  the 
consideration  of  one  which  had  been  urged  with 
great  force  by  h:s  friend  from  New  Yorft,  (Mr. 
NICOLL,,)  and  by  the  gentleman  from  Columbia, 
(Mr.  JORDAN,) — that  the  striking  out  the  proposed 
qualifications  of  candidates  for  the  office  of  Go- 
vernor, would  leave  the  rights  of  the  minority  in 
the  unrestrained  power  of  the  majority.  If  this 
were  true,  he  would  stand  shoulder  to  shoulder 
with  those  gentlemen  in  resisting  the  motion. — 
He  concurred  with  them  in  the  views  they  had 
taken  of  the  rights  of  individuals  and  of  minori- 
ties, and  of  the  tyranny  of  majorities.  He  be- 
lieved it  made  no  difference  to  the  sufferer  whe- 
ther it  was  one  or  a  many-headed  monster  which 
oppressed  him.  More,  he  believed  that  majori- 
ties were  not  always  right — that  they  were  some- 
times wrong.  He  only  adopted  them  in  all  pro- 
per cas~s  —  where  a  general  public  object  was  to 
be  attained,  as  furrishing  the  best  rule  of  action, 
because  they  were  more  likely  to  be  right  than 
minorities.  In  all  this  then  he  agreed  with  those 
gentlemen  ;  but  he  denied  that  these  principles 
had  any  application  in  the  present  case,  which 
was  broadly  distinguished  <rom  the  cases  which 
they  put  of  private  or  individual  A*  personal  right 
The  choice  of  a  Governor,  is  not  an  exercise  of  a 


210 


power  of  government.     It  is  merely  the  selection 
of  an  agent  to   perform   ministerial  duties,   who 
can  do  nothing  except  as  the  laws  confer  the  pow- 
er upon  him.     The  Executive,  as  we  understand 
the  term,  has  no  portion  of  the  sovereign  power, 
except  his  Veto,  and  that  is  a  protection  of  mino- 
rities.    This  was  the  doctrine  in  the  Revolution, 
and  it  is  so  laid  down  by  all  writers  of  eminence 
since.     Lord  Brougham,  in  his  late  work  on  Po- 
litical  Philosophy,  expressly   says — it  is    more 
strictly  correct  to  consider  the  Legislature   alone 
supreme,    because  whatever    authority  has  the 
power  of  making  laws,  has  of  necessity  the  pow- 
er also  of  directing  and  controlling  their  adminis- 
tration and  their  execution.     If  this  view  of  Exe- 
cutive authority  be  correct,  and  it  appeared  to  him 
it  was,  the  Governor  can  do  nothing  to  affect  the 
right  of  minorities.     He  cannot  suspend  the  right 
of  habeas  corpus,  to  which  the  gentleman   from 
New  York  alluded,  or  violate  any  other  personal 
right.     The  right  of  a  majority  to  select  a  Gover- 
nor   does    not    enable     that    majority    to    take 
away   the    property    of   an   individual    without 
compensation,  or  destroy  life,   or  interfere   with 
the   happiness  of  any  one.    It  is  therefore  not 
true    that    we  propose   to  leave  any  power   in 
the  hands  of  the   majority  which  they  can  use 
to  the  prejudice  of  the  minority.     But  let  us  pro- 
ceed a  step  further  in  this   argument.     We   pro- 
pose not  to  confer  but  to  leave  the  power  of  ap- 
pointment in  the  people — to  let  them  act  in  their 
original  capacity.     We    refuse  to  delegate  that 
power  to  any  other  body.     We  believe  that  it  will 
be  best  exercised  by  the  majority  and  yet  we   are 
afraid  to  trust  them.     It  is  here  that  we  betray  -a 
sense  of  distrust  of  the  capacity  of  the  people   to 
select  proper  agents.     We  hold  out  "  the  word 
of  promise  to  the  ear  and  break  it  to   the   hope." 
He  opposed  these  restrictions  because  he  wished 
to  be  consistent — for  to  him  it  appeared  incongru- 
ous to  say  in  the  same  breath  we  have  entire  con- 
fidence in  the  virtue  and  intelligence  of  the   peo- 
ple, and  yet  we  will  not  trust  them   to  choose  a 
Governor  without  restrictions, — which  from  their 
very  nature  must  be  nullities.     We  have   abund- 
ant instances  of  the  utter  disregard  of  those  quali- 
fications.    The  freehold  qualification  for  public 
officers  was  constantly   and  notoriously  violated 
before  the  alteration  of  the  Constitution   the  last 
year.     So,  two,  instances  have  been  alluded  to  of 
the  election  of  members   of  Congress  under  re- 
quired age.     Yet  in  those  cases  there  is  a  perfect 
remedy.     But  suppose  the  whole  people   of  the 
State  should  elect  a  man  who  was   only  twenty- 
nine  years  and  eleven  months  old  ?     How  would 
he  be  prevented  from  taking  his  seat  ?     And  this 
was  no  unprecedented  case.     It  is   precisely  so 
that  we  now  hold  our  seats.     We  are  here  with- 
out Constitutional  authority.     We  are  here  in  de- 
fiance of  a  respectable — though  small    majority 
and  we  draw  our  pay  without  any   Constitutional 
right.     Gentlemen  argue  this  questipn   as   if  we 
proposed  an  innovation.     As  has  been  repeatedlj 
remarked  the  Constitution  of  1777  contained  onl] 
a  single  qualification,  and  that  was  that  the  Gov> 
ernor  should  be  a  wise  and  discreet  freeholder. — 
That  provision  has  since  been  stricken  out  by  an 
almost  unanimous  vote  of  the  people  ;  so  that  i 
we  take  the  constitution  of  1777  and  the  action  o 
the  people  upon  it,  we  have  a  precedent  running 


n  all  fours  for  striking  out  this  section  altogether. 
And  did  not  the  people  ^lect  good  Governors  un- 
ier   the   old   constitution  ?     You   had  a   George 
Clinton,  a  Jay,  a  Tompkins,  and  De  Witt  Clin- 
on.     It  is  true  that  George  Clinton  and  Tompkins 
vere  young  men  when  they  were  elected,  but  no 
Governors  engaged  more  the  confidence  of  the 
^tate.     Both  were  elevated  to  the  Vice  Presiden- 
y  of  the  United  States,  and  both  were  scarcely 
hirty.     In  1821  these   qualifications    as  to  age 
vere  introduced  ;  and  the  first  Governor  who  was 
dected  under  them  turned  out  it  is  said  to  be  so 
ild  and  dogmatical,  that  though   he  went  in  by 
he  consent  of  both  parties,  he  could  find  none  to 
advocate  his  re-election.     The  people  have  taken 
are  not  to  commit  such  an  error  the  second  time, 
n  the  virtue  and  intelligence  of  the  people  we 
lave  the  best  guarantee  that  this  duty  will  be  best 
serformed.     They  are  quick  to  see  their  interest. 
They  will  place  no  man  in   the  Executive  Chair 
,vho  does  not  come  with  strong  claims  to  their 
;onfidence,   unless  indeed  they   should  unfortu- 
lately  be  imposed  upon,  by  the  reputation    in 
"ormer  days  of  some  old  man.     There  is  the  dan- 
jer.     Not  that  they  will   take  one  too  young,  or 
newly  among  them.     But  if  the   people  of  this 
State  should  become  so  debased  as  to  repose  this 
rust  in  some  bad  man's  hands — in  some  eloquent 
>r  "  raw  youth,"  as  one  gentleman  says,  unworthy 
>f  the   place, — if  they  so  far  disregard  the  leg- 
acy that  has  been  bequeathed  them   by  their  fa- 
;hers  as  to  choose  a  despot  to  rule  over  them, — 
;heh,   he   admitted  that  his  confidence  in  their 
virtue  and  intelligence  would  be  gone.    But  in  the 
dreary  desolation  of  that  hour,  when  your  proud 
•abric  of  freedom  shall  be  destroyed — your  re- 
strictions would  be  of  no  avail,  for  your  Constitu- 
;ion  itself  would  be  buried  in  the  ruins.     When 
rie  looked  around  him  upon  this  Convention  and 
saw  how,  and  of  what  men  it  was  composed,  and 
aow  its  members  had  been  elected,  without  any 
qualification  required  by  law,   he  felt  that  it  was 
the  best  answer  that  could  be  given  these  objec- 
tions to  point  them  to  it.     There  were  here  young 
men  and  old  men — between  whom  there  was  an 
interval  of  fifty  years, — one  class  looking  to  the 
future,  and  the  other  to  the  past ;  yet  beautifully 
showing  the  wisdom  of  the  constituency.     The 
young  would  represent  the  progress  of  the  age ; 
the  old  would  see  to  it  that  the  fruits  of  past  ex- 
ertion and  labor  should  be  protected  and  enjoyed. 
For  himself,   he   felt  that   he  was  an   unworthy 
member  of  this  body ;  yet  he  could   not  forbear 
saying  that  he  considered  the  doctrine  of  those 
who  would  place  restrictions  upon  the  people  in 
the  choice  of  their  agents,  as  an  unjust  rebuke  of 
them   in  their  selection  of  the  members  of  this 
Convention.     Entertaining  the  views  which  he 
had  now  expressed,  he  would  vote   to  strike  out 
the  entire  section. 

Mr.  A.  W.  YOUNG  said  that  having  spoken 
for  a  short  time  upon  this  subject  yesterday,  he 
felt  great  reluctance  in  trespassing  upon  the  time 
of  the  committee  again  ;  but  he  felt  compelled, 
by  the  remarks  which  had  been  made  after  he 
took  his  seat  yesterday,  and  the  doctrines  which 
had  been  so  broadly  asserted  upon  that  floor,  not 
only  to  make  a  brief  allusion  to  them  to  day,  but 
in  reply  to  enter  his  solemn  protest  against  those 
doctrines.  He  had  been  astonished  to  hear  gen- 


211 


tlemen  yesterday  lay  down  so  broadly  those  pecu 
liar  principles,  and  advocating  such  doctrines  a 
had  been  advanced.     It  was  advocated  by  then 
that  "  the  day  has  gone  by,  when  checks  are  t 
be  placed  upon  the  popular  will."    And  again  i 
was  asserted,  that, — "  We  have  abandoned  th 
principle  of  putting  checks  and  guards  upon  th 
popular  will."    Now  he  would  ask  those  gentle 
man  who  advanced  and  advocated  these,  whethe 
such   were   the  doctrines  of  the  majority  of  tha 
Convention  ?  Were  they  the  doctrines  of  the  peo 
pie,  whom  they  had  assembled  there  to  represent 
No  ;  he  hoped  not ;  for  he  considered  them  to  b 
fundamental  political  heresies  ;  most  alarming  i 
their  character ;  and   in  their  action   tending  di 
rectly  to  the  worst  disorganization  and  revolution 
Upon  what  principle  was  this  doctrine  based  ?  1 
few  evening's  since,  the  President's  desk  in  thi 
Convention  was  occupied  by  a  gentleman,  (Mr 
OWEN,)  one  of  that  class  who  are  so  very  anxiou 
to  overturn  (reform,  as  they  term  it)  the  whole  fun 
damental  law  of  society,  that  they  would  go  man) 
hundreds  of  miles  to  accomplish  this  object — to  in 
cite  others  to  assist  them — or  to  make  converts — 
and  the  doctrine  urged  upon  that  occasion  was  tha 
human  nature  was    perfect.      But    he    did  no 
believe    this  ;   and  above    all,    he  did  not    be 
lieve  that  such  a  doctrine  would  ever   have  been 
advocated  by  a  member  of  this  Convention.      In 
the  course  of  the  debate,  gentlemen  had  assum 
ed    that  the  popular  will    was  never    wrong  in 
its  action,  and  they   presumed  that  the   populai 
sentiment  must   be   always  right.       For  this  i 
amounts    to  virtually,    when    we    rightly    and 
carefully  considered  the  doctrines  that  have  been 
advanced  here.       Now  he  well  knew  that  a  man 
greatly  risked  his  popularity  who  should  attempt 
to  deny  that  the  people  are  always  right;    who 
should  assert  that  the  people  can  ever  be  wrong ; 
they  must  all  come  there — to  that  ground,  and  say 
that  the  people  an.  infallible;  that  is,  if  they  are  to 
be  considered  as  true  democrats.  Now  is  there,  he 
would  ask,  in  all  candor,  any  member  of  that  Con- 
vention,who  came  there,and  acted  as  if  he  believed 
such  a  doctrine  ?    It  was  in  effect  saying  that 
every  administration  had  been  right,  and  that  the 
people  had  never  erred.  Now  he  would  ascribe  to 
the  people,  all  the  virtue  and  intelligence  to  which 
they  are  entitled  ;  he  would  go  farther  and  admit 
that  no  nation  could  be  pointed  out  upon  the  face 
of  the  earth,  where  the  people  were  as  virtuous 
and  intelligent  as  they  are  in  this  country ;  but  at 
the  same  time  the  public  mind  might  be  misdi- 
rected even  in  this  country.     He  believed  that 
the  great  mass  of  the  American  people  were  vir- 
tuous and  incorruptible  ;  a  large  portion  never 
have  ha,d  their  minds  corrupted  ;  but  yet  at  times 
many  of  them  have  been  led  astray— have  had 
their  minds    improperly  influenced — and    have 
grossly  erred  in  their  actions.     This  he  believed 
has  been  and  will  be  again  admitted    by  men 
of  both    political    parties.       This     has     been 
conceded    most   certainly    in    relation    to    one 
great     political     struggle     which     had    occur- 
red   not  many    years    ago.     And  as   they   have 
erred  heretofore,  they  are  fallible,  and  are  liable 
to  err  again.     Those  who  have  held  to  the  doc- 
trine of  the  people's  infallibility,  have  assumed 
that  the    people   are    at    all    times    competent 
to  choose  their  own  governor  and  other  officers; 


and  that  being  so,  any  restrictions  on  them  are 
unjust  and  anti-republican.     Now  he  had  too  good 
an   opinion  of  the  American  people  to  suppose 
that  they  would   subscribe  to  such  doctrines  as 
these.     Instead  of  the  contemplated  measures — 
these  restrictions,  (as   they  are  called,)  being  re- 
strictions upon  the  people,  they  are  restrictions  on 
the  representatives  of  the  people.     The  gentle- 
men seem  to  lose  sight  of  our  form  r  f  govern- 
ment.      It    is    representative    throughout ;    not 
only   in   its  legislation,    but  in    those    conven- 
tions, which  select  the  candidates  for  the   people 
to  vote  for.     There  is  no  such  thing  as  pure   and 
unmixed  democracy  in  this  country.     Do  the  peo- 
ple always  select  pure  candidates  ?     We  all  know 
the  materials  of  which  these  conventions  are  com- 
posed.    There    may  be  half  a  dozen  or  a  do- 
zen gentlemen  who  have  their  eyes  on  the  guber- 
natorial chair,  having  friends  representing  them 
in  that  Convention  ;  and  men  are  frequently  sent 
to  these  conventions,  because  they  are  known  to 
be  in  favor  of  this  or  that  particular  man.     This 
is  the  machinery  by  which  Governors  are  nomi- 
nated ;  and  the  people  being  well  aware  that  those 
whom  they  send  to  these  conventions  are  liable  to 
be  improperly  influenced,   they   do   not  wish  to 
give  to  their  delegates   unlimited  control  in   the 
choice  of  these  candidates,  any  more  than  in  the 
enactment  of  laws.     The  restriction  imposed,  is  a 
restriction  on  their  delegates — their  representa- 
tives.    The  gentleman  had  said  that  the  majority 
must  always  rule,  and  that  it   did  always  rule  in 
this  country.     And  that  the  minority  must  always 
submit  to  it.     Now  he  would  ask  that  gentleman 
to  reflect  a  little,  and  say  if  this  had  always  been 
the  case  ?     In  one  instance  at  least,  an  important 
one,  (and  one  of  somewhat  recent  occurrence)  the 
will  of  the  majority   did   not  have   sway;  but  a 
principle  had  been  adopted  there  which  required 
that  a  candidate  should  be  nominated  by  a  two- 
:hird  vote ;  and  in  this  instance   most  certainly, 
the  majority  did  not  rule.     Were  not  the  wishes 
of  the  people  thwarted  there  i     In  this  instance, 
he  favorite  candidate  of  the  majority  was  set  on 
one  side  by  the  minority.     And  he  would  also  re- 
mind them  that  many  times  during  the  strife  and 
contentions  that  would  occur  in  these  nominating 
conventions,    a  majority    would    have    to    sub- 
mit to  a  minority,  because  the   minority   threat- 
ened   to    rebel  unless    their   favorite   candidate 
vas    chosen.      In  this  way,   too  often  the   no- 
minations   were     made,    and    it    therefore    did 
not  always  happen  that  the  best  men  were  nomi- 
lated.     Now,  the  only  question,   it  was  said    by 
hese  gentlemen,  is,  "  Are  the  people  capable  of 
choosing  their  own   Governor  ?"     Certainly  they 
ire.     He  fully  believed  that  the  people  could  al- 
vays  and  generally  would  make  a  good  selection, 
f  entirely  left  to  themselves ;   but  then   all  the 
rominent  public   men  are  not  sufficiently  well 
cnown  to  the  people.     Before  a  man  was  30  years 
>f  age,  however  eminent  for  ability  he  might  be, 
here  would  not  be  time  enough  allowed  for  all 
ris  public  acts  to  be  thoroughly  known  and  pass- 
d  upon  by   the  people  ;  and  this  was  sometimes 
he  case  with  those  who  were  over  30 ;  and  there- 
ore  they  devolved  that  duty  of  selecting  a  candi- 
ate  on  their  delegates,  who  should  be  restricted 
when  they  put  men  before   the  people  for  their 
ufirages.    And  no  public  principle  is  here  vio- 


212 


lated  —  no  rights  of  the  people  are  here  infringed 
upon.     Whilst  the  people  are  virtuous  and  intel- 
ligent, they  are  also  unsuspecting  and  confiding  ; 
and  demagogues  have  frequently  taken  advantage 
of  this,   to  foist  themselves  into  office  ;   and  the 
people  have  afterwards  condemned  them  and  their 
acts.     Demagogues  are  not  all  dead  yet.     Whilst 
the  people   are  virtuous,  there  will  still  always 
be  those  who  use  all  sorts  of  arts  and  stratagems 
by  which  they   endeavor  to  corrupt  the  people 
and  to  betray  them.     Look   at  your  criminal  ca- 
lendars, and  you  will  find  that  virtue  is  not  yet 
so  prevalent  as  to  authorise  you  to  abolish  your 
courts  of  justice  :  there  are  thousands  who  are  dis- 
qualified from  even   being  electors  —  disqualified 
by  crimes  of  various  kinds.  And  how  much  of  fraud 
is  there  —  how   much  of  the  spirit  of  revenge  — 
how  much  of  the  spirit  of  retaliation  and  injus- 
tice  to  be  found  in  our  very    midst.     Let  those 
who  preach  the  doctrine  that  human   nature  is 
perfect,  look  through  the  community  from  day  to 
day,  and  from  week  to    week,   and  say,  whilst 
these  people  thus  act,  whether  they  are  not  dis- 
qualified, virtually,  from  discharging  their  polit- 
ical, as  well  as  their  social  and  Christian  duties? 
People,   influenced  by  such   feelings  to   pursue 
such  a  line  of  conduct,  must  be  liable  to  err  if  en- 
trusted with  power.     And  how  many  do  we  see 
throughout  the  communitywho  neglect  the  ordi- 
nary means  to  inform  themselves  of  the  state  o 
public  affairs  transpiring  daily  around  them  ?  — 
Men   who  do  not   open   a  newspaper  from   on< 
year's  end  to  another  ;  and  so  long  as  men  are  de 
voted  to  the  acquisition  of  wealth  and  property  — 
so  long  as  the  spirit  of  avarice  prevails  —  so  long 
as  vice  and  crime  prevail  —  so  long  will  the  spiri 
of  indifference  on  the 
the  people.     And 

possible  that  the  people  will  sometimes  err  ?  — 
Look  at  the  ballot-box  !  was  that  pure  ?  Is  not 
the  elective  franchise  frequently  abused  ?  Cannot 
the  members  call  to  mind  instances  when  votes 
have  been  purchased  ?  He  would  not  say  that 
this  was  by  any  means  characteristic  of  our  peo- 
ple ;  but  many  had  heard  politicians  say  that  it 
was  necessary  for  them  to  take  money  to  the  polls 


escribed,  they  had  contrived  to  obtain  a  nomina- 
ion,  and  had  thus  forceTl  themselves  into  public 
avor  without  any  real  qualification  to  recommend 
hem  to  the  people.  It  was  said  this  restriction 
nust  be  opposed  because  a  great  principle  was 
nvolved;  it  must  be  done  away  with,  because  it 
vas  not  democratic  but  contrary  to  the  spirit  of 
epublican  institutions.  Now  we  had  heard  a 
$r  eat  deal  of  democracy  here  lately ;  and  he  be- 
"ieved  as  was  said  yesterday  by  the  gentleman 
rom  N.  Y.  (Mr.  NICOI/L.)  that  democracies  or 
majorities  should  not  always  remain  unrestrained 
This  is  however  the  "  age  of  improvement"  and 
of  "  progressive  democracy"  and  of  "ultra  radical- 
sm."  And  there  seemed  to  be  a  large  share  of  this 
Latter  in  the  present  Convention.  But  there  was 
a  radicalism  with  which  he  had  no  affinity.  It 
had  been  just  now  said  by  the  gentleman  from 
Kings  (Mr.  MURPHY)  that  we  should  not  be 
bound  down  by  any  old  principles. 

Mr.  MURPHY  rose  and  said  that  he  would 
correct  the  gentleman  ;  what  he  said  was  distinct- 
ly that  they  should  stand  by  the  old  landmarks, 

Mr.  YOUNG :  We  should  be  very  cautious  how 
we  depart  from  these  old  landmarks  ;  the  land- 
marks laid  down  by  Washington,  Jefferson  and 
Madison.  The  spirit  abroad  seems  to  be  that  of 
innovation  on  these;  and  there  are  those  who 
think  innovation  must  of  necessity  be  reform. — 
Against  this  he  must  distinctly  protest.  And  he 
would  submit  to  the  gentleman  whether  this  was 
not  what  might  properly  be  termed  retrogressive 
democracy  !  It  was  annihilating  the  representa- 
tive principle ;  and  he  would  submit  to  the  sober 
sense  of  the  Convention  whether  we  had  come 
to  that  point  yet,  where  all  checks  and  guards 


;he  part  of  many,  prevail  among  should  be  considered  as  no  longer  necessary  ? 
whilst  this  is  the  case,  is  it  not   History  has  shown  that  there  was  such  a  thing 


Democracy  running  mad.  And  he  wished  gen- 
tlemen to  pause  and  ponder  before  they  suffer 
themselves  to  be  carried  by  such  sophisms  (he 
would  term  them,)  as  had  been  advocated  there, 
It  had  also  been  intimated  by  the  gentleman  from 
Kings  (MURPHY,)  that  we  have  advocated  the 
doctrine  that  this  Convention  has  no  authority  to 
make  any  alterations  in  the  present  Constitution, 

to  secure  their  object.  And  whilst  'this  state  of  except  those  which  have  been  recommended  by 
things  has  existed,  is  there  not  a  possibility  that !  by  the  people.  Now,  what  he  (Mr.  Y.)  had  said 
if  m*v  n^nv  oo-oir,  I  Ti™*  fK™~  ;™ .";„«„  was  that  they  had  better  confine  themselves  to 


it  may  occur  again  !  That  these  improper  influ- 
ences may  be  used  ;  and  that  very  mischievous 
consequences  may  result  therefrom.  The  gen- 
tleman from  Albany  had  told  them  yesterday 
that  if  he  was  in  a  nominating  Convention 
he  would  probably  never  take  part  in  select- 
ing a  candidate  for  Governor  under  thirty  years 
of  age  ;  but  then  they  had  no  guarantee  that 
they  would  always  have  delegates  so  wise,  so 
discreet,  and  honest  as  that  gentleman  ;  all  del- 
egates for  the  time  to  come  certainly  might  not 
be  so  discreet  as  he  was  ;  and  he  firmly  believed 
that  if  this  question  were  now  to  be  submitted  to 
the  people,  but  a  very  small  minority  would  be 
found  who  would  be  willing  to  do  away  with 
these  restrictions,  either  as  to  the  30  years  of  age, 
or  the  5  year's  residence.  They  have  had  too 
many  instances  of  men  having  risen  to  public  fa- 
yor,  to  high  political  distinction  —  who  were  only 
the  creatures  of  circumstances,  who  had  not  the 
corresponding  merit  or  ability  to  justify  such  ele- 
vations. In  some  such  a  way  as  he  had  already 


.he  consideration  and  completion  of  the  most  im- 
portant alterations  which  have  been  suggested  by 
:he  people  in  all  parts  of  the  State,  and  then  they 
could  turn  their  attention  to  the  disposal  of  these 
minor  matters.  He  was  not  desirous  of  confin- 
ing his  attention  to  any  of  these  particulars.  He 
was  willing  to  take  up  the  whole  subject  of  the 
Constitution ;  and  see  if  there  be  any  points  in  it, 
which  though  not  in  the  abstract  wrong,  are 
likely  to  lead  to  bad  results  ;  and  then  he  was  per- 
fectly willing  to  amend  or  abolish  them.  But 
he  did  not  wish  to  go  into  any  random,  indis- 
criminate alteration  of  that  instrument  without 
any  reason  whatever.  It  was  also  said  by  the 
gentleman  from  Kings  (Mr.  MURPHY)  that  the 
Governor  had  no  control — no  power  over  individ- 
ual rights,  and  also  that  the  sovereign  power  al- 
ways resided  in  the  Legislature.  He  knew  that 
a  belief  in  this  doctrine  has  prevailed  and 
may  prevail  in  other  countries,  and  persons  are 
very  apt  to  adhere  to  those  doctrines  in  the  be 


213 


lief  of  which  they  have  been  educated.  But  the 
doctrine  is  not  true.  And  he  would  go  fart  hoi- 
back  than  the  gentleman  from  Kings  (Mr.  MUR- 
PHY) and  say  that  the  sovereign  power  resided 
solely  in  the  people  themselves;  and  hence  the 
necessity  of  imposing  some  restrictions  upon  the 
powers  they  delegate;  and  if  the  people  consent 
to  have  alterations  and  amendments  made  in  the 
Constitution,  it  is  the  strongest  restriction  that 
can  be  imposed  upon  them  or  their  power.  Now, 
the  Governor  is  a  co-ordinate  branch  of  the  law- 
making  power,  and  we  shall  hear  by  and  by  that 
his  power  as  a  co-ordinate  branch  of  the  Legis- 
lature shall  be  abolished,  He  had  risen,  as  he 
said,  for  the  purpose  of  solemnly  protesting 
against  these  doctrines,  that  no  checks  of  any 
sort  are  to  be  imposed  upon  the  popular  will. — 
He  believed  that  the  people  would  never  sanc- 
tion such  doctrines.  And  they  would  be  quite 
as  likely  to  support  those  who  advocated  prop- 
er restrictions,  as  those  who  tickled  their  ears 
with  praises  of  their  virtue,  intelligence  and 
patriotism,  in  order  to  gain  popular  applause, — 
He  believed  that  the  people  are  willing  to  have 
these  restrictions  imposed  in  this  clause,  excep 
as  regards  the  word  "native,"  and  about  tha 
the  popular  feeling  had  pretty  well  determined 
And  he  hoped  that  the  good  sense  of  the  Con 
vention  would  restore  the  qualification  of  thirty 
years,  which  had  been  stricken  out,  and  retain  th 
five  years'  residence,  with  the  addition  of  having 
been  five  years  a  cftizen. 

Mr.  PATTERSON  said  that  this  debate  hac 
taken  a  very  wide  range.  He  had  at  first  sup 
posed,  like  the  gentleman  from  Westchester 
(Mr.  WARD,)  that  the  question  originally  was  on 
the  amendment  of  the  gentleman,  from  St.  Law 
rence  (Mr.  RUSSELL).  But  from  the  remark 
which  had  fallen  from  the  Chair,  he  now  sup 
posed  that  the  whole  subject  was  under  discus 
sion,  and  that  therefore  he  would  not  be  out  o 
order  in  the  r  marks  that  he  was  about  to  make 
It  had  evidently  been  supposed  and  contended  fo 
by  some,  that  the  Convention  had  no  right  t 
make  any  amendment  to  this  part  of  the  Consti 
tution.  And  it  was  added,  that  they  had  bee 
sent  to  that  Convention  by  the  people,  for  certai 
specific  purposes.  Now,  he  wished  that  the  gen 


tlemen  who  so  contended  would  point  out  thos 
specific  purposes  for  which  the  people  had  sen 
them  there.     Let  them  point  out  any  of  the  pe 
culiar  provisions  of  the  Constitution  which,   a 
they  contended,  the  people  had  sent  them  ther 
to  amend,  or  alter,  as  well  as  those  which  truey 
were  not  to  touch   or   meddle  with  at  all.     He 
(Mr.  P.)  was  not  aware  that  they   had  been  sent 
there  with  any  restrictions   at  all;   or   that  they 
had  been  directed  to  amend  one  part  and  not 
touch  the  other  part  of  the  Constitution.     He  had 
not  so  interpreted  his  mission.     He  had  supposed 
that  they  had  been  sent  there  without  any  limi- 
tation to   their  action  on   the  Constitution,  and 
that  the  whole  of  the  subject  matter  of  that  in- 
strument was  to  be  submitted  to  them  ;  that  their 
business  in   that  Convention  was  to  revise  the 
Constitution  ;   that  they   were  sent  there  by  the 


on.       And    if    this     was    not    the     case,    he 
rished  gentlemen  to  point  out  to  him  what  the 
rnitations  were,  and  where  they  were,  that  had 
een  imposed  upon  them  by  the  people.       When 
e  heard   in  that   House   gentleman   propose  to 
lace  shackles  and  fetters  upon  the  people,  he 
onfessed   that  he  was  surprised.     He   had  sup- 
osed  that  the  day  had  gone  by  when  the  people 
ould  in  any  way  be  thus  hampered, — "cabined, 
ribbed,  confined," — in  the  full  and  fair  exercise 
f   their  own  free   will.       When    propositions 
hould  be  made  in   that  body  to   impose   checks 
nd  restraints  upon  the  powers  now  exercised  by  or 
hat  were  likely  to  be  invested  in  the  Governor,  or 
o  impose  checks  and  restraints  upon  the  powers 
exercised  by  any  of  the  State  officers,  they  would 
ind  him  standing   up  in  his  place  and  recording 
lis  vote  in    favor  of  it.      But   when    gentlemen 
;ame  there,  and  declared  that  the  people  ought 
,o  be  restricted  in  the  same  way,  why,  they  must 
get  their  votes  from  some  other  quarter,  for  they 
would  get  no  support  from  him.      His  friend  the 
gentleman   from  Wyoming   (Mr.  A.  W.  YOUNG) 
had  said  that  the   people  were   not  competent  to 
choose  a  candidate  for  Governor,  and — 

Mr.  A.  W.  YOUNG  said  that  he  had  stated 
that  the  great  mass  of  the  people  were  virtuous 
and  intelligent ;  but  that  they  did  not  directly 
choose  their  candidate  for  Governor ;  that  choice 
t>eing  made  by  a  Convention  of  delegates 

Mr.  PATTERSON:  Well,  it  comes'to  about 
the  same  thing ;  he  says  that  the  people  do  not 
choose  their  Governor;  and  that  is  equivalent  to 
saying  that  the  people  are  incapable  of  selecting 
a  candidate  for  Governor. 

Mr.  A.  W.  YOUNG:  I  deny  that;  I  did  not 
so  say,  nor  so  intend  to  be  understood 

Mr.  PATTERSON :  Well ;  the  gentleman  from 
Wyoming,  [Mr.  YOUNG]  has  also  spoken  about 
demagogues;  and  he  says  that  the  demago- 
gues are  not  all  dead  yet.  And  he  spoke 
also  of  the  action  of  caucusses  that  controlled  the 
action  of  the  people.  He  said  that  the  people 
were  not  presumed  to  know  who  the  candidates 
were,  that  were  selected  for  them  by  these  cau- 
cusses.  But  he  would  ask  the  gentleman  if  the 
nominees  of  these  caucusses  always  obtained  their 
election.  No,  indeed.  It  was  true  that  the  me- 


people,    to    frame    th« 
they     possibly    could ; 


best 
and 


expected    the    Convention 
mil  to    them,   a  lair    ind 


Constitution    that 
that     the    people 
and    sub- 
Constitu- 


to    frame 
liberal 


thod  usually  adopted  in  selecting  a  candidate  for 
governor,  was  by  delegates  in  a  caucus ;  but  it 
did  not  follow  that  the  people  were  therefore 
bound  to  vote  for  him  ;  and  many  instances  had 
occurred,  especially  of  late  years,  which  showed 
pretty  plainly  that  the  people  did  not,  and  could 
not  be  induced  to  vote  for  the  nominee  of  a  cau- 
cus, [a  laugh.]  Many  gentlemen  had  found  that 
out  to  their  sorrow. 

Mr.  A.  W.  YOUNG  wished  very  much  that  the 
gentleman  from  Chautauque,  [Mr.  PATTERSON,] 
would  tell  him  an  instance,  or  the  time  when  a 
governor  of  this  state  had  been  elected,  who  was 
not  the  nominee  of  a  party  caucus. 

Mr.  PATTERSON  :  When  ?  why  he  would  an- 
swer the  gentleman  ;  there  was,  at  least,  always 
one  of  them  nominated  by  a  party  caucus, 
that  never  did  and  never  could  be  elected,  and 
sometimes  two  of  them.  (Laughter.)  But  the 
question  now  is,  whether  you  will  trust  the  peo- 
ple with  the  duty  of  selecting  their  own  Govern- 
or ?  Or  will  you  tie  them  down  in  thia  respect, 


214 


and  say  that;  they  shall  not  vote  for  a  man  unles 
he  is  so  old ;  or  30  years  of  age,  or  5  years  unde 
a  certain  mark  ?  That  is  the  point.     The   plair 
simple   question  before  us,  and  for  us  to   decid( 
is,  are  the  people  capable  of  self-government,  c 
are  they   not  ?     That  is  the  question  ;  and  ther 
is  no  other  one  involved  in  the  subject  befor 
them.      May  the  people  vote  for  whom  the 
please?   or,  will  you  say  at  once,  that  you  will  nc 
let  them  vote  for  a  man  under  30  ?     If  you  tie  u 
one  end,  why  not  go  on,  carry  out  the  doctrine 
and   tie  up  the  other  end  ?     You   say  they   sha] 
not  vote  for  a  man  who  iy  only  29  years  old;   on 
year,  one  month,  or  even  one  day,  under  30 year 
of  age ;  and  yet  you  will  allow  them  to  vot 
for  a  man — an    old,    superannuated    man — on 
in   hie  dotage ;  and  say   that  he   may  be   mad< 
Governor   of   the    State.       Now,    if   you    elec 
a  young  man  to  be  your  Governor,  and  should  hap 
pen  to  make  a  mistake,  the  people  could  verj 
soon  correct  it ;  and  the  young  man  will  improve 
but  if  you  should  choose  an  old  man,  and  he  wa 
to  go  wrong,  you  could  not  improve  or  correc 
him ;     for    he    would  be    growing    worse     am 
worse    every    day.      Whereas,    on  the  contra 
ry,  a  young  man  would  be  growing  better  and  bet 
ter  every  day.     But  the   fact  is,  that  the  day  foi 
imposing  fetters  and  shackles  upon  the  action  o 
the  people  of  this  country,  has  gone  by.     And  i 
you  place  such  a  restriction  as   this  in  the  Con- 
stitution, it  will  be  of  no  use.     Who  is  there  that 
does  not  know  that  that  provision  in  the  Consti- 
tution of  the  United   States   relative  to  the  free- 
hold qualification   of  United  States  Senators  has 
been  utterly  disregarded  ?      Who  does  not  know 
that  there  are   Senators  elected   to  the   Senate  o 
the  United  States  who  do  not  own  one  single  foo 
of  land,  except  that  to  which  they  will  be  enti- 
tled to  when  they  come  to  lie  down  at  the  close  of 
their  journey  in  this  life  ? 

Mr.  RICHMOND  :  Did  those  Senators  take  an 
oath  to  support  the  Constitution  of  the  United 
States  ? 

•  Mr.  PATTERSON  :  Very  likely  ;  because 
they  claim  the  right  to  construe  the  Consti- 
tution as  they  please  ;  or  to  construe  it  as 
they  understood  it ;  as  a  certain  distinguish- 
ed man  once  remarked  that  he  had  done. — 
(Laughter.)  Now,  he  (Mr.  P.)  would  not  put  up 
any  bars  which  should  prevent  the  people  from 
exercising  the  fullest  freedom  in  the  choice — the 
selection  as  well  as  the  election — of  all  their  offi- 
cers. The  gentleman  from  Wyoming  (Mr.  A.  W. 
YOUNG)  had  said  that  this  has  been  called  "  the 
age  of  progressive  democracy  !"  He  (Mr.  P.)  was 
perfectly  well  aware  of  that  fact ;  he  also  said  that 
the  demagogues  were  not  all  dead  yet.  He  (Mr.  P. ) 
was  aware  of  that  fact  also,  Mr.  Chairman.  And 
he  was  also  strongly  inclined  to  believe  that  all  the 
old  Federalists  are  not  dead  yet.  He  was 
strongly  inclined  to  believe  that  there  was  a  con- 
siderable sprinkling  of  the  remnant  of  old  Feder- 
alism left  in  this  Convention  yet.  He  wished  that 
those  gentlemen  who  thus  mistrusted  the  people, 
by  saying  that  they  should  be  thus  restricted,  who 
refused  to  put  full  confidence  in  the  judgment  and 
integrity  of  the  people — he  wished  all  gentlemen 
to  show  themselves  ;  he  wished  all  those  to  put 
themselves  on  the  record,  and  vote  to  that  effect. 
But  he  was  not  one  of  them !  For  he  had  never 


seen  the  day  when  he  was  not  willing  to  trust  the 
people  with  the  choice  t>f  all  their  officers  and 
rulers ;  those  who  in  fact  were  after  all  but  their 
servants.     He  did  not  mean,  of  course,  to  insist 
that  the  people  were  always  right  in  what  they 
did;  they  may  be,  and  sometimes  are,  wrong; — 
neither  is  the   majority   always   correct;  and  he 
did  not  mean  to  say  that  the  people  in  their  deci- 
sions and  conclusions  were  generally  right.     He 
believed  in  the  integrity  of  the  people,  and  their 
intention  to  do  right ;  and  he  was  therefore  wil- 
ling to  trust  them.     And  he  believed  that  though 
majorities  did  not  always  act  correctly,  yet  that 
the  majority  ought  to  rule — and  to  that  doctrine 
he  was  perfectly  willing  at  all   times  to  submit. 
The  gentleman  from  New  York,   (Mr.  NICOLL,) 
who  spoke  yesterday,  contended  that  it  was  ne- 
cessary in  order  to  piotect  the  rights  of  the  mino- 
nority  against  the  encroachments  of  the  majority, 
that  these  restrictions  should   be  imposed — that 
the  minority  had  certain  rights  here  which  must 
be  protected.     But  he  would  ask    him   how  can 
the  rights  of  the'  minority  be  protected  ?     How 
can  the  minority   express   their   wishes  ?     Who 
adopts  this  provision  ?     Who  is  to  adopt  all   the 
provisions  in  the  new   Constitution  about  to  be 
framed  by  the  Convention  ?    The  minority  or  the 
majority  ?  The  new  Constitution  might  be  adop- 
ted there,  by  a  majority  of  even  a  single  vote  ;  it 
may  be  sent  out  from  here  by  a  bare  majority  of 
one  ;  and  it  may  be  adopted  b^y  the  people  of  the 
State  by  a  bare  majority  of  one  ?    Who  governs 
then  ?  The  majority!    What  becomes  then  of  the 
rights  of  the   minority,  as    the  gentleman  had 
:ermed  them  ?     It  is  the  act  of  the  majority ;  and 
:he  minority  must  submit;  for   a   majority   only 
can  rule  in  this  country.     It  certainly  was  a  great 
misfortune    and    very    unpleasant   to    be   in    a 
ninority.      He     himself    had    had    the    mis- 
brtune  in  the  course  of  his  time  to  find  himself 
n  a  minority.     (Laughter.)  It  was  very  unpleas- 
ant, to  be  sure — he  was  so  situated  now,  in  some 
•espects — but  there  was  no  help  for  it ;  they  had 
o  submit ;  grin  and  bear  it ;  and   get  along  the 
)est  way  they  could.     He  and  his  colleague  (Mr. 
MARVIN)   happened  to  differ  in  opinion  on   this 
ubject ;  he  would  not  for  a  moment  impugn   the 
notioves  of  his  colleague ;  he  knew  his  integrity, 
ndependence  of  character — his  patriotism — his 
ntelligence — and  his  devotion  to  the   interests  of 
he  people,  too  well  to  suppose  that  he  was  any 
hing  but  perfectly   sincere   and  honest    in   the 
ourse  that  he  was  taking.     He  (Mr.   P.)  would 
ot  say  that  he   regretted   he  could  not   agree 
rith  his   colleage ;  but  he  regretted  much  that, 
is    colleague    could    not    agree     with    him. — 
"hey  had  both  been  sent  there  by   the  same  con- 
tituents — to  represent  the  interests  of  the  same 
ounty;  and   it   might  seem  somewhat  singular 
lat  they  should  thus  differ.    It  might  be  because 
ley  had  a  dividing  ridge  in  the  county  of  Cha- 
auque.     There  was  a  northern   portion,   and  a 
outhern  portion.     He    [Mr.  P.]  came  from  the 
orth  side,  and  his  colleague  came  from  the  south 
de.     And  perhaps   that  might  account  for   the 
ifference  of  opinion   between   them.     His  col- 
jague  had  said,  also,  that  the  rights  of  the  mino- 
ty  must  be   protected  here  ;  and   instanced  that 
o  man's  life,  liberty,   or  property  can  he  taken 
xcept  by  the  due  course  of  law.  But  he  would 


215 


is  colleague,  who  made  that  law  ?  Did  the 
whole  people  make  it,  or  did  a  majority  only 
make  it  ?  The  passing  of  that  very  law  was  the 
act  of  the  majority,  and  the  majority  alone.  And 
it  is  not  by  the  will  of  the  whole  people  that  you 

any  law  of  the  state.  As  he  said  before, 
when  the  time  arrives — when  the  question  comes 
up — that  they  are  to  restrict  the  powers  of  the 
Executive,  or  impose  restraints  and  checks  upon 
the  legislature  or  state  officers,  he  would  be  found 
going  quite  as  far  as  his  colleague,  or  as  him  who 
goes^the  farthest.  But  he  would  never  go  with 
those  who  were  so  afraid  to  trust  the  people,  that 
they  endeavored  to  hamper  them  in  every  possi- 
ble way.  They  were  not  advocating  the  choice 
of  a  young  or  an  inexperienced  governor ;  they 
contended  for  nothing  of  the  kind  ;  but  they  in- 
sisted that  the  people  be  left  free  from  any  tram- 
mels or  this  point,  to  select  whom  they  pleased. 
This  he  believed  to  be  the  true  doctrine  ;  and  this 
he  therefore  advocated.  He  was,  once  for  all, 
opposed  to  all  restrictions  here ;  and  whenever 
the  question  was  taken,  he  should  vote  to  strike 
them  all  out;  and  to  strike  out  the  whole  ques- 
tion. 

Mr.  RUGGLES  wished  to  express  his  dissent 
to  some  of  the  propositions  advanced  by  the  gen- 
tlemen from  New- York  and  Albany,  (Messrs.  0'- 
CONOR  and  HARRIS)  and  which  had  been  repeated 
just  now,  by  the  gentleman  who  last  occupied  the 
floor.  The  proposition  advanced  by  those  gen- 
tlemen is,  that  when  the  Convention  undertook 
to  propose  to  the  people  for  their  adoption  that 
the  candidate  for  governor  should  possess  certain 
qualifications,  that  it  transcended  its  powers — and 
that  it  would  be  undertaking  to  trammel  and  con- 
trol the  action  of  the  people.  He  did  not  under- 
stand it  in  that  way,  and  in  seemed  to  him  that 
the  argument  was  founded  on  two  indefensible 
propositions.  In  the  first  place,  on  the  pro- 
position that  the  people  never  can  do  wrong. — 
He  knew  that  it  was  usually  and  frequently  said 
by  candidates  for  elective  offices,  and  by  persons 
seeking  popular  favor,  that  the  people  never 
could  do  no  wrong ;  but  go  into  the  country , and  put 
the  question  to  the  farmer,  whether  he  be  high 
or  low,  rich  or  poor,  and  take  his  answer,  and  it 
would  be  found  that  not  one  of  them  would  ad- 
mit the  truth  of  the  proposition.  Collect  them 
all  together  and  they  will  give  you  the  same  an- 
<\Yiir.  There  was  another  point  of  fact  which 
t'vi-ry  one  knew.  The  people  collectively,  are 

times  mistaken,  as  well  as  individuals — are 
moved  the  same  by  sudden  impulses,  and  re- 
trace their  steps  when  they  have  had  the  oppor- 
tunity of  sober  thought.  The  other  assumption 
was  that  the  action  of  this  Convention  binds  the 
people.  This  was  not  true — we  are  here  assem- 
bled to  make  propositions  to  the  people,  and  un- 
til they  are  ratified  by  the  people  they  are  in  no 
way  binding  upon  them.  It  appeared  to  him 
that  when  they  assert  that  it  is  trenching  upon 
the  rights  of  the  people  when  we  propose  that  the 
officers  to  be  elected  should  have  certain  qual- 
ifications, that  they  assume  the  proposition  that 
the  people  are  incapable  of  laying  down  whole- 
some rules  by  which  their  action  shall  be  govern- 
ed. We  do  not  propose  to  lay  down  but  to  submit 
to  the  people  to  declare  by  their  votes,  whether 
it  was  or  was  not  expedient,  that  rules  should  be 


adopted  by  them  to  regulate  their  action — the 
same  as  are  adopted  by  every  other  assemblage  or 
body  of  men  to  regulate  their  action.  This  Con- 
vention has  adopted  rules  to  preserve  order,  and 
to  prevent  the  hasty  adoption  of  measures,  as  was 
adopted  by  every  deliberate  body.  And  might  it 
not  in  the  estimation  of  the  people  then  be  neces- 
sary that  they  should  adopt  some  rules  by  which 
the  rights  of  the  minority  should  be  protected,  and 
the  majority  prevented  from  going  wrong.  Might 
there  not  then,  in  the  estimation  of  the  people, 
be  some  general  rule  to  govern  the  people,  in 
giving  their  votes  for  candidates  for  office,  that 
might  operate  wisely  in  making  our  popular  elec- 
tions safe.  It  struck  him  that  at  least  the  Con- 
vention had  the  power  to  present  the  question  to 
the  people,  and  to  ascertain  wrhether  or  not  they 
would  feel  that  some  such  rule  should  be  adopt- 
ed, calculated  to  qualify  their  action  and  to  ren- 
der it  safe.  It  had  been  said  by  the  gentleman 
last  up,  (Mr.  PATTERSON)  that  no  rule  could  be 
adopted  by  the  people  themselves  to  restrict  their 
action  in  regard  to  votes  given  for  candidates 
elected  by  the  whole  people,  and  that  none  would 
be  observed  by  them.  It  seemed  to  him  (Mr.  P.) 
to  be  anything  but  flattering  to  the  honesty  or  good 
sense  of  the  people,  to  doubt  that.  It  was  wrong  to 
suppose  that  they  would  act  from  impulse,  from 
sudden  passion,  and  without  any  regard  to  the 
fundamental  law.  He  had  too  great  a  regard  tor 
them  to  subscribe  to  any  principle  of  that  des- 
cription. He  believed,  that  this  people  would  by 
common  consent,  adopt  any  rule  that  might  be 
deemed  necessary  to  prevent  sudden  and  impro- 
per action,  and  the  only  question  for  the  Conven- 
tion to  decide  was  whether  the  rules  we  here 
proposed  as  to  the  qualifications  of  candidates  for 
Governor,  were  such  as  would  in  general,  in  the 
average,  and  in  the  long  run  operate  to  elect  safe 
and  responsible  men  to  that  important  office.  As 
to  the  expediency  of  any  one  qualification  he  did 
not  mean  to  say  anything,  but  he  hoped  that  no 
member,  in  giving  his  vote  on  this  question, 
would  be  governed  or  regulated  by  any  other  rule 
than  to  ask  himself  whether  the  qualifications 
proposed  to  be  inserted  were  wise  and  necessary. 
If  he  thinks  so,  let  him  vote  for  its  adoption  and 
its  reference  to  the  people.  If  he  should  be  of 
the  opinion  that  it  was  improper  to  impose  any 
qualification — that  it  was  inexpedient,  unnecessa- 
ry and  not  calculated  to  check  the  improper  ac- 
tion of  the  people,  let  him  vote  against  its  adop- 
tion. He  hoped  no  member  would  vote  against 
the  section  on  the  ground  of  its  imposing  restric- 
tions on  the  action  of  the  people,  for  that  was  not 
the  case.  We  only  proposed  to  them  to  say  whe- 
ther they  would  adopt  the  restriction. 

Mr.  SIMMONS  said  that  if  the  learned  gentle- 
man from  Dutchess  (Mr.  RUGGLES,)  had  extended 
his  remarks  a  little  further,  there  would  have 
been  no  occasion  for  him  to  rise.  But  there  were 
some  things  that  were  suggested  by  the  very  dis- 
tinguished gentleman  from  New-York  (Mr. 
O'CONNOR,)  to  which  alone  he  Mr.  S.  intended  to 
reply.  There  were  two  or  three  to  be  sure,  who 
had  treated  us  with  a  lecture  upon  the  powers  of 
the  people,  without  distinguishing  between  arbi- 
trary power,  influenced  by  passion  and  impelled 
by  sudden  emergencies — and  that  power  which 
was  regulated  by  constitution,  by  law  and  by  the 


216 


action  of  the  people,  when  confined  to  the  rules 
prescribed  by  themselves  before  hand.  But  he 
thought  that  the  answer  to  such  arguments  would 
suggest  itself  to  every  one  who  read  their  speech- 
es, and  need  not  be  controverted  in  any  formal 
way  by  any  gentleman  on  this  floor.  But  the 
gentleman  from  New-York  advanced  some  pro- 
positions here  to  which  he  (Mr.  S.)  really 
could  not  assent.  He  was  not  certain  but 
that  he  should  have  assented  if  he  had  not 
had  time  during  this  debate  to  examine  them, 
because  he  granted  that  his  feelings  rather  in- 
clined him  that  way.  Had  we  been  favored  by  a 
written  report,  or  permitted  to  be  so,  and  a  tho- 
rough examination  and  statement  of  the  reasons 
for  all  propositions,  it  would  have  saved  time  and 
a  great  deal  of  waste  breath.  But  not  having  the 
necessary  examination  for  himself  he  had  ex- 
amined the  question  as  presented  by  the  gen- 
tleman from  New  York,  in  regard  to  the  par- 
ticular qualification  of  nativism  more  especially; 
and  although  rather  inclined  to  venture  the  ex- 
clusion of  the  word  from  the  Constitution  under 
certain  circumstances,  yet  he  confessed  that  on  a 
deliberate  consideration  of  the  subject  it  was  with 
great  apprehension  that  he  voted  so.  The  gen- 
tleman from  New  York  informed  us  that  our  early 
constitution,  formed  about  the  time  of  our  dec- 
laration of  Independence  or  a  little  after,  between 
the  declaration  and  the  achievement,  contained  no 
exclusion  of  aliens  from  the  office  of  Governor, 
though  he  admitted  that  the  Constitution  of  the  U. 
States  did.  And  the  gentleman  seemed  to  think, 
and  he  (Mr.  S.)  confessed  that  it  occurred  to  him 
that  it  was  so  at  first,  that  the  reason  for  such 
exclusion  lay  no  further  than  in  a  spirit  of  ex- 
clusiveness  and  jealousy  of  foreigners.  But  if 
we  look  a  little  further,  it  would  be  seen  that  we 
have  no  reason  to  think  so  meanly  of  the  great 
men  of  the  Revolution,  or  the  great  men,  as  some 
seem  to  think,  that  followed  after,  if  one  genera- 
tion is  supposed  to  add  any  thing  to  the  stock  of 
our  common  knowledge.  At  all  events,  the  gen- 
tleman seemed  to  think  that  the  Convention  of 
''21  adopted  the  principle  exclusively  upon  some 
narrow  jealousy  or  personal  motive,  not  imme- 
diately concerning  the  safety  and  good  govern- 
ment of  the  State.  And  he  has  ventured  the  in- 
timation, as  he  (Mr  S.)  must  suppose,  upon  due 
consideration,  knowing  that  even  this  Conven- 
tion contained  two  members  of  the  former  one. 
Now,  upon  an  examination  of  the  subject, 
we  find,  at  all  events,  a  good  reason  for 
the  action  of  the  Convention  of  '77,  and 
also  some  reasons  which  induced  the  action 
of  that  of  '21.  It  is  an  old  settled  rule  of  inter- 
national law,  (and  nothing  is  clearer  than  that  it 
is  the  law  of  England,  and  he  had  found  it  to  be 
the  law  ot  France,  and  he  was  inclined  to  believe 
it  to  be  the  law  of  every  nation ;  Blackstone  says 
it  is  the  universal  law  of  the  world,  and  the  Su- 
preme Court  of  the  United  States  in  the  3rd  of 
Peters',  1830,  tell  us  that  it  is  the  law  of  Ameri- 
ca)— that  a  person  coming  from  a  foreign  coun- 
try— an  alien  born — on  being  naturalized,  is  not 
discharged  from  his  allegiance  to  his  native  coun- 
try. In  other  words,  the  doctrine  of  expatriation 
is  not  recognized  by  the  law  of  the  world.  If 
that  be  so,  if  Thomas  Addis  Emmett,  or  any  most 
distinguished  man,  whom  we  would  all  like  to 


vote  for — in  this  country  could  hold  the  office  of 
governor,  or  be  the  commander  of  the  armies,  and 
in  his  capacity  as  a  branch  of  the  legislature,  act 
as  a  proposer,  and  then  as  an  affirmer  or  negativer 
of  laws — his  other  relations  to  a  foreign  country 
would  perhaps  have  influenced  his  action,  more 
than  it  would,  if  such  a  person  could  have  been 
governor  without  incurring  the  responsibility  of 
allegiance  to  the  two  countries  in  time  of  war. 
We  could  see  good  reasons  to  induce  our  forefa- 
thers in  1777  to  make  their  Constitution  as  they 
did,  and  their  successors  in  1821  to  make  theirs 
as  they  did.  It  was  laid  down  by  Chancellor 
Kent  and  other  writers,  that  all  persons  who  were 
residents  of  America  at  the  time  of  the  signing 
of  the  Declaration  of  Independence,  no  matter 
where  born,  if  they  continued  to  reside  here  until 
it  was  achieved,  by  the  law  of  nations  they  would 
be  discharged  from  their  allegiance  to  foreign  na- 
tions, and  become  as  it  were,  natural  born  citi- 
zens, because  born  with  the  birth  of  our  own  lib- 
erties. Though  born  elsewhere,  they  became 
parties  to  our  achievement  of  independence  and 
were  considered  the  same  as  native  citizens — 
their  naturalization  being  thus  coeval  with  the  ex- 
istence (the  Chancellor  should  have  said  birth)  of 
the  nation  and  its  liberties.  This  was  the  reason 
why  the  first  Constitution,  that  of  1777,  was  made 
as  it  was— and  it  was  all  proper.  But  those  who 
came  here  subsequently,  and  became  citizens 
with  us  by  naturalization,  (as  they  of  course  must 
have  been  down  to  '21,)  did  not  stand  in  that  par- 
ticular. They  were  naturalized  by  us,  and  they 
became  so  far  identified  with  us,  as  they  could  be 
by  municipal  legislation.  But  we  cannot  dis- 
charge them  from  their  allegiance  to  their  own 
country.  By-the-by,  he  had  always  been  surprised 
that  inasmuch  as  the  question  of  citizenship  was 
a  part  of  the  law  of  nations  and  of  the  world,  that 
Ahe  national  government  had  not  made  some  at- 
empts  at  least,  even  if  not  successful,  to  obtain 
the  sanction  by  treaties  with  other  nations,  of  the 
doctrine  of  self-expatriation. 

Mr.  TALLMADGE  said  that  the  attempt  had 
often  been  made,  but  unsuccessfully.  During  the 
war  of  1812,  the  question  of  expatriation  was  up, 
and  our  government  took  the  ground  that  if  any 
naturalized  citizens  were  executed  by  the  British 
government  for  treason,  that  they  would  retaliate 
by  executing  all  British  subjects  captured  in  the 
war. 

Mr.SIMMONS  thanked  the  gentleman  for  his 
explanation.  He  could  only  state  that  the  law 
was  such  as  to  draw  the  distinction  as  it  was 
drawn  in  the  law  of  nations,  between  those 
citizens  by  naturalization  who  were  in  the  coun- 
try at  the  time  of  the  formation  of  the  Constitu- 
tion of  1821,  and  those  who  were  here  as  part 
and  parcel  of  ourselves  in  achieving  our  liberties. 
It  was  therefore  through  these  reasons  that  the 
Convention  made  this  distinction,  instead  of  from 
motives  of  illiberality  and  small  jealousy.  It 
was  said  by  Blackstone  and  Mr.  Chitty,  in  re- 
gard to  the  law  of  England,  that  naturalization 
in  foreign  countries  without  license,  will  not 
discharge  the  natural  born  subject  from  his  al- 
legiance, and  they  give  an  instance  of  a  man 
who  was  born  in  England,  who  afterwards  re- 
moved to  France,  where  he  lived  from  infancy 
and  became  a  captain  in  the  French  army. — 


217 


Having  been  taken  prisoner,  he  was  indicted  and 

condemned,   being    tried    by    the    civil  courts, 

d    of    a    court    martial.      Now  he    con- 

l    that    so    long     as    human     nature    was 

*  knew   it  to   be — as  was  instanced   in  the 
of  General    Hull— that  man  is   not   always 

•  in  point  of   physical   courage,   against  all 
circumstances — he  should   regret  to  have  a  Gov- 
ernor  in  time   of  war   (especially   with  a   great 

r)  with  the  control  of  our  armies,  and    act- 
in  the  character  of  Governor   of  the  State, 
with    his   weight  and   influence   as   part  of  the 
•  iature — he    repeated  he    should   regret   to 
te  station  filled  by  a  person,  who  was  not  free 
nil  hazards  and  temptation,  so  that  we  could 
no  doubt  at  all  of  his  courage.    Courage 
is  .said  to  be  rather  a  matter  of  constitutional  tem- 
perament,— a  thing  not  easily  acquired,  if  nature 
did  not  supply  the  constitutional  element — and  al- 
though we  should  hope  that  a  naturalized  citizen 
should  do  as  well,  and  incur  all  his  responsibili- 
.s  the  native,   "  yet  the  battle   is  not  always 
to  the  strong,  nor  the"  race  to  the  swift,"  and  they 
thought  of  that  as  well  as  we.     He  apprehended 
Jthat  it  was  motives   of  this  sort  that  influenced 
the  former  Convention,  for  certainly  there   were 
gentlemen  there  who  knew  as  much  of  the  broad 
doctrine  of  international  law  as  any  gentleman  on 
this  floor  pretended  to.     The  supreme  court  of  our 
mvn  nation,  3d  of  Peter's  page  246,  says  that  the 
general  doctrine  is  that  no  person  by  any  action 
of  his   own,  without  the  consent  of  his   govern- 
ment, can  put  off  his  allegiance,    and  become  an 
alien.     For  American  citizens  cannot  expatriate 
themselves  so  that  our  claim  to  their   allegiance 
would  not  remain.     The  principle   was  that  no 
man   could   serve  two  masters,  and  it  is   easy    to 
perceive  then,  that  certain  circumstances  would 
render  it  highly  dangerous  to  have  such  a  person 
elected  Governor  of  the  State.     He  granted   this 
doctrine  was  highly  obnoxious  to  all  Americans; 
and  if  we  could  by  any  constitutional  enactment 
here — which  is  alter  all  only  municipal  legisla- 
tion— change  that  law  so  as  to  establish  the  free 
and  full  doctrine  of  expatriation,  he  should  like 
to  do  it.     And  inasmuch  as  he  saw  that  some   of 
the  new  constitutions  had  left  out  that  exclusion, 
he  was  rather  inclined  himself  to  try  the  experi 
ment,  though  as  he  said  before  it  was  with  some 
reluctance.     His  feelings  were  so  strong  that   he 
should  be  rather  tempted  to  go  the  whole  length, 
provided  we  can  substitute  a  reasonable  residence 
and  age  for  it.     So  much  for  the  qualification  01 
disqualification  of  birth      He  thought  in  regard 
to  that,  that  the  enlightenment  of  the  age,  which 
is  progressive — for  knowledge  is  running  to  anc 
fro  in  the  earth—that  the  strong  tendency  of  the 
•.ige  is  to  put  down  this  illiberal   doctrine   of  per; 
petual  and  eternal  allegiance,  and  in  favor  of  es- 
tablishing the  more  reasonable  docrine  of  v  olun 
tary  expatriation.     Although  there  was  no  s  ettle( 
law,  no  treaty  establishing  it,  and   although   th( 
elementary   writers  of  Great   Britain  of  the  day 
laid    it  down  as  law,  yet  the  doctrine  seemed   t< 
be     so    repugnant    to    reason, — the    prevailing 
feeling     and    good     sense  —  that    it    might    be 
considered    as    almost    obsolete  —  the    practice 
would  take  away  the  whole  sting  of   it.     And 
he    should    therefore    be    inclined    to    try    the 
imerit  here  if  he  could  secure  a  good  term  o 

14 


esidence  and  age,  and   in  fact  he  should  not  an- 
icipate  much  evil  from  it.     But  now  in  regard  to 
he   other  question,   the   other  qualification.     It 
vas  said  here  that  it  was  sufficient  to  let  the  peo- 
>le  select  for  themselves,   for  they  were  always 
i^ht.     He  confessed  without  some  little  reflec- 
ion  he  was  puzzled   to  answer  a  great  many  ar- 
guments that  had  been  made  here,  yet  he  felt  there 
,vas  something  in  them  that  had  not  satisfied  him. 
The  gentleman  from  Dutchess  had  removed  some 
f  the  difficulties,  but  he  desired  to  suggest  that  a 
government  is  not  a  government  except  by  the  con- 
ent  of  the  governed, or  by  force.  Government  must 
cither  be  by  consent  or  by  force.     If  by  force,  it  is  a 
isurpation,  and  is  no  government  at  all ;  and  it  is 
o  be  resisted  by  every  individual  that  can  do  it.  All 
ust  government  is  founded  on  the  consent  of  the 
governed.     That  all  will  agree  to,  and  by  recurring 
;o  a  few  first  principles  we  should  come  out  right. 
Then  further  than  that,  it  is  not  only  founded  on 
he  consent  of  the  governed,  but  it  is  to  be  exer- 
cised by  law.     It  can  not  be  exercised  by  force, 
arbitrarily,  any  more  than   it  can   be  founded  by 
brce.     Law  is  only  the   consent  of  the  governed 
— the  form  in  which  the  consent  of  the  governed 
s  given ;  and  the  government  can   no  more  be 
continued,  if  exercised  arbitrarily,  than  the  go- 
ernment  could  be  so  formed.     Very  well,  then, 
lere  we   have   advanced  two  steps.      The   next 
hing  was   the  principle   that  distinguished   the 
modern  Democracy  or  Republicanism, from  the  an- 
cient.   The  writers  say  that  the  ancient  Republics 
owe  their  downfall  to  the  want  of  a  knowledge  of 
the  practice  and  principle  of  representation ; — 
and  that  the  modern  ones  have  a  prospect  of  du- 
ability and  great  good  to  the  people,  from  an  in- 
creasing acquaintance  with  the  principle  of  rep- 
resentation and  its  expansibility.     Now,  the  peo- 
ole,  in  our  kind  of  democracy,   govern   through 
iheir  representatives,  and  never  personally.     And 
all  the  people  do,  substantially,  towards  the  gov- 
ernment,  notwithstanding   they  are  the  fountain 
of  power,  is  to  select  their  representatives  and  to 
'lold  them  responsible,  periodically.     Then  came 
ip  two  very  important  questions  :  what  shall  be 
the  proper  qualifications  of  a  representative  ?  and 
how  can  the  constituency  know  that  he  possesses 
them  ?     Now,  if  we   provide  well  for  these  two 
things,  then  we  might  say  that  representative  go- 
vernment stands  on  a  broad  and  secure  foundation. 
Well,  now,  the  qualification   of  the   representa- 
tive must  depend  on  the  duties  to  be  performed. 
Certainly  the  qualification  of  a  town   constable 
might  well   be  less   than   the   qualification   of  a 
sheriff,  and  his  much  less  than  that  of  a  governor. 
Would  it  be   pretended  here  that   there   was  any 
democratic    mode    of   acquiring    the    necessary 
knowledge  and   fitness  for  the  office  of  governor, 
without  the  usual  time  of  study  and  experience, 
in  God's  world  ?     Has   it  come  to  this,  that  it  is 
seriously  mooted,  in  this  land  of  Sabbath  schools, 
common   schools,  and  academies,  that   it  is  very 
important  for   the   common   people,  in   order  to 
manage  their  own  business,  for  the  first  twenty  or 
thirty  years   of  their  lives,  to  be  dilligent  in  at- 
taining the  rudiments  of  knowledge  :  but  when  a 
man  comes   to  be   appointed  an  agent  to  control 
the  great  affairs   of  State,   requiring   an  under- 
standing of  its  interests,  and  a  comprehension  of 
its  whole  financial  and  political  system,  that  every 


218 


person  is  fit  for  it,  as  a  matter  of  course.  It  is  the 
theory  of  representative  government,  that  every 
man  is  a  "  jack  at  all  trades,"  Or  is  it  that  while 
nature  is  left  free,  there  will  be  some  men 
peculiarly  fitted  to  do  that  high  business,  and  the 
rest  will  have  the  good  sense  to  know  it,  and  to 
put  them  in  office.  The  people  will  secure  such 
aid  in  the  government ;  and  when  they  want  a 
watch,  they  will  go  to  a  watchmaker  ;  when  they 
want  boots,  they  will  go  to  a  bootmaker ;  and 
when  they  want  flour,  to  a  flour  dealer — and  so 
forth.  He  took  that  to  be  the  true  doctrine.  He 
granted  that  true  democracy  supposed  the  peo- 
ple to  be  capable  of  self-government,  but  it  did 
not  begin  by  abolishing  all  the  sciences  and  arts, 
but  it  availed  itself  of  them  to  maintain  self-go- 
vernment. Now,  he  could  very  well  suppose 
that  generally  a  young  man  at  the  age  of  21  might 
be  well  trained  by  his  parents  and  guardians  if 
they  had  done  their  duty,  to  get  along  with 
the  ordinary  transactions  of  life — but  even  then 
he,  (Mr.  S.)  would  recommend  that  he  should 
consult  his  father  frequently.  ,Very  few  men 
commenced  the  study  of  our  institutions 
practically,  until  they  come  to  that  age,  although 
it  was  a  fact,  and  he  was  glad  to  see  it,  that  many 
gentlemen  under  30  were  sufficiently  educated  in 
the  subject  to  represent  their  counties  in  the  As- 
sembly. Yet  it  did  not  follow  that  they  were  of 
necessity  equal  to  others  of  greater  experience, 
but  it  was  a  school  to  them,  and  we  must  have 
young  men  before  we  had  old  ones.  Education 
may  be  said  to  be  perhaps  sufficient  to  qualify 
them,  but  he  considered  education  to  be  two-fold 
— private  and  public;  and  granting  that  some 
amount  of  private  education  was  necessary  to  re- 
gulate private  affairs,  of  course  a  public  educa- 
tion was  required  for  public  concerns.  And  was 
it  not  clear  that  the  necessary  degree  of  acquaint- 
ance»with  public  matters,  and  the  financial  and 
political  economy  of  the  nation  came  at  a  little 
later  period  of  life  than  25  years.  A  very  consi- 
derable portion  of  our  young  men  do  not  leave 
their  colleges  until  they  are  24  or  25.  And  in  ge 
neral,  he  might  say  that  every  public  man 
aquired  his  public  experience  and  knowledge  at 
a  later  period  of  life  than  21- — usually  between 
that  period  and  30,  or  about  that  time.  This  was 
the  general  rule,although  it  was  possible  that  there 
might  occasionally  be  a  Wm.  Pitt — but  the  ex- 
ception only  proves  the  truth  of  the  general  rule, 
that  we  could  not  rely  on  an  earlier  age  than  3U 
for  matured  and  good  public  men.  If  that  was 
the  general  rule,  then  there  was  no  harm  in  say- 
ing so,  and  there  might  be  great  safety  and  caution 
in  so  doing.  Then  in  regard  to  residence  it  amount- 
ed to  about  the  same  thing.  It  was  only  another 
mode  of  securing  a  proper  education  in  reference 
to  our  public  institutions — which  we  possess  as 
contradistinguished  to  other  municipal  institu- 
tions in  other  countries.  Yet  owing  to  the  intro- 
duction of  steam  and  the  Magnetic  Telegraph, 
and  all  the  multiplied  means  of  intercommunica- 
tion, between  the  intellectual  world,  within  the 
last  few  years,  there  had  been  such  a  general  spi- 
rit of  what  might  be  called  cosmopolitanism 
spreading  through  this  country  and  all  others, 
that  he  thought  we  might  well  shorten  the  time 
in  regard  to  residence.  He  thought  that  a  man 
would  get  emancipated  from  any  peculiar  views 


or  prejudices  he  might  be  supposed  to  have,  com* 
ing  from  another  government,  and  become  liber- 
alized in  the  course  of  seven  years,  as  completely 
as  he  could  in  twenty  years  in  1821.  So  that  for 
himself  he  should  be  willing  to  vote  to  exclude 
from  the  Constitution  this  principle  of  exclusive- 
ness  on  account  of  the  doctrine  existing  in  law 
books,  and  in  the  decisions  of  courts  and  cabinets, 
and  which  he  was  inclined  to  think  would  not 
really  be  attempted  to  be  enforced.  And  if  nego- 
tiation could  not  break  up  the  law  he  was  willing 
if  possible  to  break  it  up  in  some  other  way. — 
People  in  the  transaction  of  their  private  busi- 
ness, found  it  important  in  the  selection  of  their 
agents,  to  have  some  general  rule  as  to  qualifica- 
tion. And  it  could  not  be  less  important  that 
they  should  have  the  benefit  of  some  general  rule 
in  choosing  the  most  important  agent  they  could 
employ  in  the  State.  But  it  was  said  that  the 
people  would  know  all  about  it,  aud  that  they 
would  need  no  such  general  rule.  How  were  they 
to  know  ?  Why  it  was  said  because  the  people 
were  generally  intelligent.  He  would  grant  that 
they  were  in  the  proper  sense  of  the  word.  But 
they  could  never  know  except  from  an  ac- 
quaintance and  residence  among  them,  or  from 
others,  what  the  qualifications  of  a  man  were. 
This  would  be  secured  to  them,  Mr.  S.  urged  by 
the  adoption  of  the  requirement  of  a  five  years 
residence  in  the  state.  And  it  was  also  necessa- 
ry to  prevent  a  person  being  set  up  for  governor, 
from  the  very  fact  of  his  being  unknown,  and 
therefore  perhaps  considered  the  more  available. 
There  was  no  fear  of  the  public  not  judging  right- 
ly of  the  fitness  of  a  candidate,  with  the  means  of 
becoming  acquainted  with  him,  by  reputation  or 
otherwise.  He  granted  the  public  sentiment, 
within  its  proper  sphere,  was  a  truer  test  of  truth 
than  the  individual  opinion  of  the  wisest  man  in 
God's  world.  This  was  well  settled  now  in  phi- 
losophy, as  well  as  in  common  sense.  But  now 
what  was  the  proper  sphere  of  this  public 
intelligence.  ?  It  was  as  to  individual  factss 
correctly  reported,  and  tested  by  general  prin- 
ciples. Present  any  thing  to  the  people,  where 
the  subject  matter  for  reflection  is  general 
principles,  and  they  will  be  right;  but  when  re- 
quested to  know  particular  facts,  without  the 
means  of  knowing  them  to  be  so,  it  was  absurd. 
And  the  history  of  the  world  presents  very  little 
more  than  a  succession  of  miscarriages  of  all  the 
attempts  made  by  the  people  to  regain  their  rights 
— right  in  principle — but  erring  through  mistakes 
of  particular  facts.  It  seemed  to  him,  then,  to 
be  safe  to  secure  some  competent  qualification  as 
a  general  rule,  in  the  candidates ;  and  then  to  se- 
cure to  the  people  the  means  of  knowing  it :  and 
that  was  to  be  obtained  by  requiring  a  reasonable 
term  of  age  and  residence.  Some  gentlemen 
seemed  to  pay  no  regard  to  former  Constitutions, 
and  times,  in  regard  to  this  question.  Everything 
had  an  age  of  scepticism  ;  sometimes  on  religion, 
sometimes  on  politics,  and  sometimes  on  some- 
thing else.  Every  age  had  its  peculiarity.  In 
1836,  he  believed,  we  had  extreme  credulity  m 
the  commercial  world,  and  now,  we  had  extreme 
scepticism  and  distrust,  and  all  seemed  to  be 
thinking  how  to  tie  up  every  thing  in  that  di- 
rection. It  was  to  avoid  these  extremes,  where  in- 
dividual sentiment  was  liable  to  be  jostled  from 


219 


>per  bearing,that  he  wished  a  general  rule  to 
be  prescribed  in  regard  to  the  qualification  for  age, 
not  only  for  the  Executive,  but  for  all  general  offi- 
cers. It  had  been  suggested  by  some  that  we  were 
limited  in  our  mode  of  action,  and  by  others  that  we 
are  not  limited  at  all.  Some  contended  that  we 
were  to  go  to  work  and  pull  down  and  remove  the 
x)ld  building,  then  bring  on  the  stuff  and  put  up  a 
put  up  a  new  one,  in  a  style  of  architecture  un- 
known in  the  world.  To  his  mind  it  was  per- 
fectly clear  that  this  Convention  was  not  limited 
by  the  statue  under  which  it  assembled,  and  only 
by  our  own  sense  of  expediency.  But  as  wise 
men,  we  should  go  to  work  carefully,  and  never 
remove  a  column  without  being  very  sure  before 
hand  that  the  new  one  would  not  only  look  as 
well,  but  work  as  well  as  the  old  one.  The  Con- 
vention was  sitting  here  with  the  consent  of 'the 
existing  government.  Were  it  here  without  that 
consent,  and  for  the  purpose  of  overturning  the 
existing  government,  it  would  be  a  revolutionary 
and  unlawful  assemblage.  The  law  gave  no 
power  to  us.  It  was  in  the  form  of  law,  but 
•in  fact  but  a  mere  expression  of  the  consent  of  the 
existing  government.  We  having  the  assent  of 
the  existing  government,  our  power  to  reform 
and  remodel  the  constitution  was  unquestiona- 
ble. But  to  assume  to  be  so  wise  that  all 
that  had  lived  before  us  were  small  lights,  and 
that  all  who  were  to  come  after  us  would  not 
know  as  much,  would  argue  a  very  small  amount 
of  modesty.  He  thought  however,  it  was  expe- 
dient to  look  over  the  whole  Constitution;  but  he 
should  be  generally  opposed  to  changing  any  part 
:hat  the  nublic  attention  had  not  been  called  to 


that  the  public  attention  had  not 

as  a  grievance,  unless  it  was  a  mere  trifiin< 


mat- 


ter, rather  for  ornament  than  use.  He  desired 
to  seo  the  fundamental  law  specify  the  qualifi- 
cations of  candidates.  Not,  however,  on  the 
ground  taken  by  the  gentleman  from  Albany  (Mr. 
HARRIS)— who  inferred  that  we  should  never 
go  wrong  and  select  too  young  a  man,  because 
we  never  had.  We  had  heretofore  lived  under 
restrictions,  and  the  argument  assumed  that  what 
we  had  not  done  under  these  restrictions,  we 
would  not  do  if  they  were  taken  off.  The  gen- 
tleman might  about  as  well  have  said,  that  be- 
cause heretofore  we  had  had  no  voters  under  21 
years  of  age,  there  was  no  ground  to  fear  they 
would  vote,  if  we  abolished  the  law  and  let  them 
vote  as  they  pleased.  He  confessed,  he  prefer- 
red to  retain  the  rule  of  age,  on  the  ground  that 
public  experience  could  not  be  acquired  by  a 


that  he   (Mr.   T.)  participated  in  the  feeling  in 
which   the  native   American  party  originated. — 
And  he  would  add,  that  he  regarded  it  as  one  of 
the  caprices   and   follies   of  the  day;  and  since 
that  party  sprung  up,  he  had  been  cautious  never 
to  use  the  word.     The   Convention  of  1821  had 
been  alluded  to,  and  the  motives  which  induced 
them  to  put  this  word  among  the  qualifications 
for  governor,  had  been  called  in  question  by  the 
same  gentleman  from  New- York,  (Mr.  O'CoNOR.) 
He  begged  leave  to  explain,  not  what  the  motives 
of  gentlemen  were,  but  the  circumstances  under 
which  that  word  was  inserted.   In  the  mad  orgies 
of  the  French  revolution   the   Patriots  who  had 
guided  us  thro'  the  horrors  of  our  own,  still  lived, 
as  well  as  him  who  wielded  the  pen  with  such  re- 
markable power  and  effect  in  the  Cause  of  Liberty 
— Tom  Paine — who  afterwards  in  his  fall  uttered 
his  Age  of  Reason,  and  God  spare  us  that  we  shall 
not  get  up  a  second  edition  of  it — he  followed  the 
orgies  of  the  French  Revolution  until  he  got  into 
prison.     He  then  called  upon  Washington    to 
claim  him  as  an  American  citizen.     And  what 
did  Washington,  the  father  of  his  country  say?  He, 
[Mr.T.]  need  scarcely  remind  those  who  were  in 
any  way  conversant  with  our  history,  what  the 
answer  of  Washington  was — or  what  the  doctrine 
here  was  at  that  day.     It  was  enough  to  say  that 
it  was  the  reverse  of  the  doctrine  that  Great  Bri- 
tain held — that  no  man  could  expatriate  himself. 
Gen.  Washington  then  held  the  opposite  to  be  the 
American   doctrine — that  a  man   who    left    his 
country  and  gave  his  adhesion   to   another,  parti- 
cipated in  its  concerns  and  entered  into  its  revolu- 
tionary struggle,  had   ceased   to  be  an  American 
citizen,  and  that  Washington  refused  to  demand 
Tom  Paine.    Great   Britain    being    at  war  with 
France,  could  not  demand  him,  and  he  remained 
in  prison  for  a  long  time.     At  last  private  letters 
from    Washington    and  others,    extricated  him, 
and 
the 
tion   of  expatriation 


And   he  would 
that  the  constit- 


younger  man  than  one  of  30. 
have  some  period  of  residence, 
-ent  body  might  have  the  means  of  knowing  some- 
thing of  the  man  and  his  fitness.     As  to  the  word 
native,  he  would  strike  that  out — having  no  fears 
that  in  the  present  enlightened  state   of  public 
sentiment   the     doctrine   of   foreign  allegiance 
would  ever  be  attempted  to  be  enforced  or  main- 
tained. 

Mr.BASCOM  obtained  the  floor,  but  gave  way  to 
Mr.   TALLMADGE,  who  desired,  in  justice 


he    came    here    and    died.     Again,    when 
war  of    1812  came  on,  then  rose  the   ques- 

gov- 


ernment  had  refused 


which    the    British 

to  surrender.     He  would 


mention  a  case  which  could  be  vouched  for  by  the 
delegates  from  Orange.  Some  twenty-three  na- 
turalized citizens  of  this  country,  volunteers  in 
our  army,  were  captured  at  Queenston  by  the 
British  —  among  them  was  John  Wiley  of  New- 
burgh.  The  British  government,  reviving  its 
doctrine  of  expatriation,  refused  to  treat  these 
twenty-three  men  as  prisoners  of  war,  and  they 
were  sent  to  Quebec,  to  be  tried  for  treason,  as 
British  subjects  found  in  arms  against  the  King, 
and  to  be  hung  as  traitors.  Simultaneously  at 
this  time,  the  same  course  was  being  pursued  in 
relation  to  prisoners  they  had  taken  from  our 
ships  of  war.  Fortunately,  at  the  time,  our  Go- 
vernment held  as  prisoners  of  war  more  than  that 
number  of  British  subjects,  and  the  opportunity 
was  presented  of  testing  the  practical  operation  of 
the  British  doctrine,  that  no  man  could  expatri- 
ate himself.  Under  this  state  of  things,  our  go- 
vernment told  the  British  government,  ifyoupro- 
to  himself,  to  make  a  word  of  explanation.  It  ceed  under  your  doctrine  of  expatriation,  to  hang 


was  due  to  himself,  from  the  import  atttached 
yesterday  by  one  of  the  gentlemen  from  New- 
York  to  his  (Mr.  T.'s)  remarks,  in  connection 
with  this  word  "  native."  The  gentleman  was 
mistaken  in  supposing,  if  that  was  his  meaning, 


John  Wiley  and  his  fellow  prisoners,  we  pledge 
you  that  we  will  hang  man  for  man — aye,  two  for 
one,  of  the  British  subjects  now  in  our  power,  as 
prisoners  of  war.  And  our  government  did  main- 
tain by  one  of  the  strongest  arguments  that  could 


220 


be  addressed  to  the  human  mind,  the  naturaliza- 
tion principle  of  this  country,  and  saved  the  lives 
of  these  twenty-three  naturalized  citizens  of  the 
Union.  The  demand  was  that  they  should  be 
treated  in  all  respects  as  prisoners  of  war,  and 
though  the  British  Government  never  surrender- 
ed the  principle;  still  they  saw  fit  never  to  exer- 
cise it,  and  these  men  were  not  hung.  These 
facts,  he  said,  which  all  here  who  had  reached 
the  age  of  fifty-five  would  vouch  for,  showed  that 
our  government  had  not  been  tardy  in  asserting 
the  rights  of  naturalized  citizens,  and  the  great 
American  doctrine  on  which  our  naturalization 
laws  were  based.  It  was  under  the  excitement 
of  these  circumstances,  with  the  knowledge  that 
the  British  government  still  clung  to  its  doctrine, 
once  a  British  subject  always  a  British  subject — 
that  the  convention  of  1821,  in  no  spirit  of  perse- 
cution towards  foreigners,  nor  in  any  odious  or 
prescriptive  sense,  introduced  the  word  na- 
tive among  the  qualifications  for  Governor. — 
As  to  the  question  of  the  present  day — narrowed 
down  as  it  was  to  a  distinction  between  classes  of 
our  own  people — or  the  native  and  naturalized — 
he  regarded  it  as  comparatively  trifling  and  im- 
material. He  had  not  even  used  the  word  in  its 
modern  application  and  meaning  since  the  origin 
of  the  Native  American  party. 

Mr.  BASCOM  said  that  if  he  did  not  apprehend 
that  the  decision  of  this  question  would  be  deci- 
sive of  some  other  important  questions  that  were 
to  be  discussed  here,  he  would  not  have  contri- 
buted to  protract  the  debate.  But  perceiving 
from  the  course  of  the  discussion,  and  from  the 
reasons  given  for  imposing  these  restrictions,  that 
those  who  came  here  to  carry  through  substantial 
and  required  reforms  in  the  Constitution,  would 
find  themselves  by  and  by,  met  by  some  of  the 
arguments  that  met  us  here,  he  had  deemed  it 
proper  to  draw  the  attention  of  the  body  for  a 
few  moments,  to  the  question  itself,  and  to  the 
positions  taken  in  regard  to  it.  ^  He  would  here 
be  permitted  to  remark  that  as  to  this  question  of 
expatriation,  if  there  was  any  thing  that  made 
him  firm  in  his  determination  to  expunge  the 
word  Native,  it  was  that  very  question ;  and  he 
desired  the  action  of  this  body  to  show  that 
we  repudiate  this  English  common  law  doctrine 
of  expatriation.  It  was  in  defiance  of  that  doc- 
trine that  we  had  grown  up  to  be  what  we  are. 

Mr.  SIMMONS  hoped  the  gentleman  did  not 
understand  him  as  saying  that  it  was  the  common 
law  of  England  alone.  It  was  the  universal  law 
of  the  world. 

Mr.  BASCOM  said  it  was  not  the  law  of  this 
country,  and  Supreme  courts  could  not  make  it 
so.  The  general  feeling  of  every  citizen,  native 
or  adopted,  was  arrayed  against  it.  And  if  there 
was  any  thing  that  would  impel  him  to  the  battle 
field,  it  would  be  to  defend  adopted  citizens  who 
had  voluntarily  expatriated  themselves.  But  he 
rose  not  to  discuss  this  question.  What  were  the 
arguments  of  gentlemen  in  favor  of  these  restric- 
tions. And  on  what  idea  were  they  founded  ? — 
Why' all  this  groping  back  to  the  past,  and  quo- 
ting precedents,  but  upon  the  supposition  that 
the  men  of  the  past  were  wiser  than  we  ?  Why 
all  this  anxiety  to  guard  against  the  indis- 
cretion of  the  future,  but  upon  the  principle 
that  we  are  wiser  than  will  be  the  future.— 


In  his  judgment,  the  progress  of  humanity 
was  in  the  other  direction,  and  we  were  not  to 
apprehend  that  the  future  would  be  more  care- 
less of  its  interests  than  we,  or  the  past.  And 
when  gentlemen  had  quoted  precedent,  they 
were  somewhat  unfortunate,  for  on  going  back  to 
the  constitutions  formed  during  the  revolutionary 
period,  they  found  no  precedent  for  the  native 
qualification  In  our  constitution  of  1821,  it  was 
found,  and  the  gentleman  from  Dutchess  had  ex- 
plained why  it  was  there.  He,  Mr.  B.,  however 
was  not.  satisfied  with  it.  The  constitution  of  the 
United  States  requiring  that  the  President  should 
be  thirty  years  of  age,  had  also  been  quoted  as  a 
precedent.  But  that  precedent  failed.  Did  not 
gentlemen  recollect  that  the  election  of  President 
was  by  an  electoral  college,  and  that  therefore  it 
was  a  restriction  on  delegated  power ;  not  on  the 
power  of  the  people.  But  what  a  spectacle  did 
we  present  here  ?  A  great  deal  of  anxiety  had 
been  exhibited  to  provide  against  the  indiscretions 
of  the  period  of  life  which  nearly  all  of  us  had 
passed — but  none  to  guard  against  the  indiscre- 
tions of  the  age  to  which  we  were  rapidly  hasten- 
ing. In  coming  here  to  endeavor  to  assist  in 
framing  a  constitution,  he  came  in  the  hope  of 
being  able  to  frame  one  that  should  assert  the 
popular  intelligence  and  virtue.  He  had  not  yet 
been  able  to  discover  the  importance  and  value 
of  the  securities  gentlemen  would  insert. — 
And  what  were  they  after  all.  That  the  candi- 
date  should  have  arrived  at  the  age  of  30  years  by 
some — and  by.  others  that  he  should  have  had  a 
residence  in  the  State  for  five  years.  So  far  as 
he  was  able  to  estimate  these  securities  they  were 
of  no  value  at  all,  and  he  would  certainly  rather 
have  the  influence  of  one  well  directed  common 
school  for  a  quarter  of  a  century,  than  all  the  se- 
curity proposed  in  this  section.  And  he  feared 
that  the  result  of  our  deliberations  here,  from  day 
to  day,  consuming  four  days  in  the  consideration 
of  this  proposition,  of  so  little  value  in  itself, 
would  be  to  compel  us  to  slight  other  and"  more 
important  subjects. 

Mr.  B.  without  concluding  gave  way  to  a  mo- 
tion to  rise  and  report  progress. 

The  committee  rose  and 

On  motion  of  Mr.  CHATFIELD,  the  Conven- 
tion adjourned  to  11  o'clock  to-morrow  morning. 


THURSDAY,  ("28th  day)  July  2. 

Prayer  by  the  Rev.  Mr.  HARRINGTON. 

Mr.  SWACKHAMER  presented  a  memorial 
from  Mr.  P.  Shapter,  of  Williamsburgh,  relative 
to  Negro  Suffrage,  and  the  rendition  law.  He 
moved  it  should  be  read  and  referred  to  the  com- 
mittee on  the  judiciary.  Mr.  S.  said,  however, 
he  might  differ  from  the  sentiments  contained  in 
the  memorial,  yet,  as  it  came  from  a  very  respec- 
table inhabitant  of  his  village,  it  was  entitled  to 
a  consideration  by  the  Convention. 

It  was  read. 

Mr.  RUGGLES  said  that  the  judiciary  commit- 
tee had  not  been  raised  for  purposes  of  legal  in- 
vestigation, but  to  form  a  plan  for  the  organiza- 
tion of  Courts.  The  petitioner  prays  for  an  alter- 
ation in  the  oath  required  from  our  State  officers, 
by  which  they  swear  to  support  the  Constitution 
of  the  United  States ;  and  it  also  prays  for  some 


221 


alteration  in  the  treatment  of  slaves.     Part  of  this 
should  be  referred  to  committee  No.  11. 

Mr.  CHATFIELD  was  perfectly  aware  that  no 
action  could  be  taken  on  this  memorial  by  the 
Convention,  as  it  was  purely  a  matter  of  Congres- 
sional action.  But  he  had  no  objection  to  a  pro- 
per reference. 

Mr.  BASCOMsaid  that  there  was  something  in 
the  memorial  with  which  the  Convention  had 
something  to  do.  And  that  was  in  relation  to  the 
oath  which  is  required  by  our  State  officers.  In 
some  of  the  states,  the  small  state  officers,  are 
not  required  to  take  an  oath  to  support  the  Con- 
stitution of  the  United  States;  but  in  tftis  State 
they  all  are  so  required  from  the  governor  down 
to  the  lowest  officer.  The  petition,  therefore, 
contained  a  legitimate  subject  for  prayer,  and 
ought  to  have  a  proper  consideration.  It  should 
be  referred  to  the  committee  on  oaths. 

Mr.  PATTERSON  said  part  ought  to  go  to 
that  Committee  and  part  to  the  committee  on 
suffrage. 

Mr.  CROCKER :  and  part  to  the  committee  on 
Human  Rights. 

Mr.  RUSSELL  wished  it  laid  on  the  table  till 
they  met  again. 

Mr.  SWACKHAMER  opposed  this,  and  it  was 
referred  to  the  committee  on  the  Judiciary. 

Mr.  A.  W.  YOUNG  moved  to  print  it. 

Mr.  WORDEN  rose  to  oppose  it ;  but  said  he 
thought  it  was  not  necessary  to  say  a  word. 

The  resolution  was  lost. 

Mr.  JORDAN  presented  a  petition  and  moved 
its  reference  to  committee  No.  1. 

Mr.  PATTERSON :    What  is  it  ? 

Mr.  CHATFIELD :    I  want  to  hear  it  read. 

Mr.  RUSSELL :  I  should  like  to  know  what  it 
is  all  about. 

Mr.  JORDAN  said  it  would  be  imposible  to 
tell  that  without  reading  it  all  over.  It  relates 
to  the  apportionment  and  election  of  members  of 
the  Legislature  but  not  to  their  compensation. 

It  was  referred. 

A  communication  was  received  from  the 
clerk  of  the  8th  Circuit  Court,  relative  to  the 
sale  of  infant's  estates. 

Mr.  TAGGART  said  that  a  special  committee 
on  the  communications  received  from  public  of- 
ficers, were  already  preparing  an  abstract  of  all 
these  returns  ;  and  as  it  might  be  necessary  to 
print  this  abstract  he  would  move  to  take  all 
these  returns  that  had  been  referred  to  the  Ju- 
diciary Committee  from  that  eommittee  and  send 
them  to  the  special  committee.  Agreed  to. 

An  invitation    was  received   from  the 
Men's  Association    for  mutual  improvement,  to 
attend  and  celebrate  the  4th  of  July  with  them. 

Mr.  WORDEN  moved  that  it  be  accepted. 

Mr.  RUSSELL  doubted  the  propriety  of  ac- 
cepting it,  for  two  reasons ;  the  first  was,  that  we 
had  accepted  one  invitation  to  celebrate  the  4th 
of  July  already ;  and  the  other  was  that  not  a  sin- 
gle member  of  the  Convention  would  be  there  to 
attend.  [Laughter.] 

Mr.  MANN  said  that  the  exercises  of  the  one 
company  would  be  in  the  morning,  and  the  oth- 
er in  the  afternoon. 

It  was  accepted. 


REPORT    ON    INCORPORATIONS    OTHER    THAN 
BANKING. 

Mr.  LOOMIS  then  presented  the  following  Re- 
port : 

The  committee  on  incorporations,  other  than  municipal 
and  banking,  respectfully  submit  the  following  which  they 
propose  as  an  amendment  to  the  constitution,  and  to  sub- 
stitute the  same  in  lieu  of  the  provisions  of  the  existing 
constitution  relating  to  the  same  subject : — 
ARTICLE . 

(\  1.  Special  laws,  creating  incorporations  or  associa- 
tions, or  granting  to  them  exclusive  privileges,  shall  not 
be  passed.  But  the  legislature  may  pass  general  laws  by 
wbi  -,h  any  person  may  become  incorporated  on  comply  ing 
with  the  provisions  to  be  contained  in  such  laws.  And^ 
all  corporations  shall  be  subj  ct  to  all  such  general  laws 
a<  the  legislature  may  from  time  to  time  enact  not  incon- 
sistent with  the  provisions  of  this  constitution 

fj  -2.  Every  corporation  for  purposes  of  gain  or  benefit 
to  the  corporators  or  share-owners,  shall  cause  the  names 
of  all  its  stockholders  and  officers,  and  the  places  of  their 
residence,  ana  an  estimate  of  the  value  of  its  property,  esti- 
mated and  appraised  as  the  legislature  shall  by  law  direct, 
and  the  aggregate  amount  of  all  its  debts  and  liabilities, 
absolute  and  contingent— to  be  published  at  stated  peiiods 
as  often  as  once  in  each  year,  in  a  newspaper  published  iu 
the  vicinity  of  its  place  of  business.  Any  such  corpora- 
tion shall  not  become  indebted  to  an  amount  greater  than 
its  capital  stock  actually  paid  in,  together  with  the  undi- 
vided nett  profits  thereon  invested  and  employed  in  the 
business  of  such  corporation,  or  actually  on  hand  in  cash 
or  good  securities  for  such  purpose.  But  this  shall  not  be 
construed  to  limit  the  hazards  of  any  insurance  company. 

§  3.  Every  corporator  or  share  owner  in  any  incorpo- 
ration for  gain  or  benefit  to  the  corporators  or  shareholders, 
except  insurance,  and  except  for  purposes  specified  in  the 
next  section,  in  case  such  corporation  shall  become  in- 
solvent, shall  be  liable  for  the  unsatisfied  debts,  and  liabil- 
ities of  such  corporation,  contracted  while  he  was  such 
corporator  or  share  owner,  to  an  amount  in  the  same 
proportion  to  the  whole  unsatisfied  liabilities  that  his  stock 
or  share  shall  bear  to  the  whole  stock.  But  such  personal 
liability  shall  not  extend  to  any  indebtedness  or  liability 
the  payment  oi' which  shnll  have  been  deterred  more  than 
one  year  by  contract  with  the  creditor,  or  which  shall  not 
have  been  demanded  by  suit  within  one  yearafter  it  be- 
comes due. 

§  4.  Every  corporator  and  share-owner  in  any  corpora- 
tion for  a  public  railway,  canal,  turnpike,  bridge,  plank- 
way  or  other  franchise  of  public  wav,  or  for  any  tele- 
graphic or  other  means  of  communicating  intelligence  for 
public  use,  shall  be  liable  for  the  debts  and  liabilities  of 
such  corporation  to  the  extent  provided  in  the  last  preced' 
ing  section,  except  as  to  debts  for  money  borrowed,  for 
land  purchased  or  taken  by  authority  of  law,  or  for  iron 
for  railroads. 

§5.  Lands  may  be  taken  for  public  way  for  the  purpose 
of  granting  or  demising  to  any  corporation  the  iranchise  ol 
way  over  the  same  for  public  use,  and  for  all  necessary 
appendages  to  «uch  right  ot  way.  Such  grants  and  demi- 
ses shall  be  made  in  such  cases  and  on  such  term?  and  con- 
ditions as  the  legislature  may  deem  lor  the  public  goodj 
but  no  such  grant  or  demise  shall  extend  beyond  fifiy  years 
in  duration. 

^6.  All  corporations  and  associations  to  be  created  or 
formed  after  the  adoption  of  this  Constitution,  shall  be 
subject  to  the  provisions  herein  respecting  corporations. 
All  which  is  respectfully  submitted, 

A.  LOOMIS,  Chairman. 

Mr.  LOOMIS  said  it  was  due  to  the  importance 
of  the  subject,  due  to  the  committee  and  to  the 
Convention,  that  some  explanation  here  should 
be  given  by  him  ;  and  the  committee  had  reques- 
ted him  to  submit  now  the  reasons  that  had  actu- 
ated them  in  arriving  at  the  conclusions  they  pre- 
sented that  report. 

[Mr.  LOOMIS  then,  following  the  example  of 
Mr.  RUSSELL  from  the  committee  on  Banking 
the  other  day,  went  on  and  delivered  the  follow- 
ing reasons,  as  an  oral  report  of  the  committee, 
in  the  form  of  a  speech : — ] 

Mr.  LOOMIS  rose  and  said  he  had  b£en  direc- 
ted by  the  committee  to  ask  leave  to  submit  some 


222 


remarks,  to  state  the  grounds  briefly  on  which 
they  had  made  this  report.  It  would  be  conce- 
ded that  among  the  subjects  to  which  the  public 
attention  had  been  called,  and  which  led  to  the 
calling  of  this  Convention,  that  in  relation  to  in- 
corporated companies  held  a  prominent  place  — 
The  people  had  seen  a  system  existing  by  which 
the  government  had  granted  to  particular  indi- 
viduals special  privileges  which  had  been  refus- 
ed to  others,  contrary  to  the  great  principle  oJ 
equality  among  men.  They  had  seen  not  only 
that,  but  that  when  these  special  privileges, 
which  were  essential  to  the  very  nature  of  a  cor- 
poration, were  exercised,  they  had  the  further 
privilege  of  immunities  from  loss  arising  from 
business  which  other  individuals  had  not  from 
loss  by  their  business.  Persons  exercising  the 
powers  of  corporations  in  many  cases,  have  all 
the  benefit  of  the  gain  which  they  could  make  by 
means  of  the  corporation,  but  in  cases  of  loss,  the 
losses  have  devolved  on  other  than  those  who 
would  be  gainers  in  case  of  success.  This  struck 
so  directly  against  all  propriety  and  equality 
amongst  men,  that  it  was  not  surprising  the  pub- 
lic attention  had  been  called  to  the  subject,  and 
especially  when  the  business  these  incorporations 
have  carried  on,  is  a  great  portion  of  the  business 
of  the  country — having  at  its  disposal  so  large  a 
proportion  of  its  active  capital,  and  affecting  not 
only  private  relations  but  the  political  institu- 
tions of  the  country.  The  object  of  the  com- 
mittee had  been  to  meet  this  prominent  difficul- 
ty in  the  first  place,  by  permitting  all  persons 
who  may  choose,  to  associate  and  become  incor- 
porated for  every  legitimate  purpose,  thus  doing 
away  with  the  first  difficulty,  that  of  a  special 
grant  of  favor  to  a  few  individuals  who  may 
succeed  in  getting  a  charter.  In  the  next  place 
they  endeavored  so  to  organize  the  organic  law 
that  while  they  would  not  discourage  this  means 
of  doing  business  or  using  capital,  they  would 
make  the  corporations  thus  using  capital,  pos- 
sess as  near  as  possible  the  same  power,  and  be  as 
powerless  as  private  citizens.  An  incorporation 
is  a  person — a  legal  person,  and  not  a  natural 
one.  It  is  impelled  on  to  action  by  the  same  mo- 
tives of  gain  which  impel  private  citizens,  but  it 
is  not  restrained  by  the  same  motive  of  benevo- 
lence and  of  humanity,  and  of  fellow  feeling, 
which  exists  in  the  mind  of  every  individual  per- 
son, and  which  restrain  his  selfish  propensities 
in  the  acquisition  of  gain.  Nor  were  they  res- 
trained by  those  prudential  considerations  which 
prevent  individuals  from  embarking  their  capital 
rashly,  in  the  desperate  hope  of  gain,  reckless  of 
loss.  The  effect  of  the  present  state  of  things  has 
been  to  urge  them  on  in  the  hope  of  success,  with 
the  prospect  of  realizing  whatever  benefits  might 
be  derived  by  the  incorporation,  or  of  devolving 
any  loss  that  might  ensue  on  others.  The  prin- 
ciple which  the  committee  have  incorporated  in 
their  report  as  to  the  payment  of  debts  or  sustain- 
ing losses,  is  such  as  to  make  every  corporator 
pay  the  same  proportion  of  losses  or  debts  in  case 
of  misfortune,  that  he  would  have  realized  bene- 
fits in  case  of  success.  II  a  partnership  of  five 
persons  be  instituted,  each  partner  knows  at  the 
time  he  enters  into  it  the  partners  he  associates 
with.  lie  selects  his  men,  and  he  does  not  as- 
sociate with  them  without  knowing  them.  One 


partner  could  not  go  out  and  bring  in  another  in  hi* 
place.  And  an  individual  therefore  knowing  his  as- 
sociates, is  content  to  be  bound  with  them  for  loss- 
es as  well  as  gains.  But  in  incorporations,  an  indi- 
vidual takes  an  undivided  share  of  the  bus. 
leaving  other  undivided  shares  to  float  where  they 
may.  He  is  willing  to  embark  his  capital,  and  hi* 
means  to  the  given  extent  of  one  fifth,  if  they 
pleased.  Now,  the  proposition  in  the  report, 
was  to  make  individual  corporators  holding  one- 
fifth  of  the  capital  stock  answerable  for  one-fifth 
of  the  loss,  thus  establishing  a  principle  of  equi- 
ty both  in  profit  and  loss.  This  is  made  to  apply 
to  all  incorporations  for  the  purpose  of  gain,  ex- 
cept  certain  classes  which  are  specified  in  the  pro- 
position, and  which  are  intended  to  embrace 
those  for  the  construction  of  public  ways — rail- 
roads, turnpikes,  plank  roads  and  bridges — and 
others  which  may  relate  to  public  ways  that  are 
under  the  necessity  of  taking  property  for  public 
use.  The  committee  were  unable  to  devise  am 
system  by  which  this  power  of  the  government 
should  be  exercised  for  the  purpose  of  assuming 
the  right  of  eminent  domain,  except  by  a  direct 
application  to  the  government  itself.  To  do  oth- 
erwise would  be  to  delegate  a  dangerous  power 
But  while  they  would  allow  the  establishment 
of  incorporations  with  the  privileges  he  had  spe- 
cified, for  railways  and  turnpikes,  with  some  oth- 
ers^yet  the  committee  would  not  permit  them  to 
proceed  and  take  private  property  without  the 
sanction  of  the  state  itself,  exercised  by  its  high- 
est power— its  legislature.  The  committee  in 
respect  to  that  class  of  incorporations  have  made 
another  class  of  privileges,  considering  the  large 
amount  of  capital  involved,  and  the  manner  it  af- 
fects real  estate,  and  other  benefits  of  which  they 
are  productive,  making  the  corporators  responsi- 
ble only  for  that  class  of  small  debts  which  ex- 
ist independent  of  the  items  which  such  compa- 
nies usually  get  into  debt  for.  They  have  excep- 
ted  them  from  personal  liability,  for  the  land  pur- 
chased or  taken,  for  the  use  of  such  companies, 
because  the  individuals  conveying  the  same  can 
retain  it  until  they  get  their  pay — and  for  money 
borrowed,  because  incorporations  of  that  kind 
borrow  large  sums,  and  of  a  class  of  persons  who 
are  supposed  to  be  men  who  examine  minutely 
into  the  prospects  of  the  companies  to  whom  they 
lend  their  money — in  short  that  they  look  out  for 
themselves.  They  also  excepted  Jron  for  rail- 
roads, embracing  so  large  an  expenditure  of  such 
companies.  The  committee  had  deemed  it  pro- 
per to  except  these  items,  leaving  these  compa- 
nies the  same  responsibilities  as  others  in  all  oth- 
er refpects — in  fact  making  the  corporators  per- 
sonally liable  for  labor  and  other  small  debts. — 
Also  as  a  security  to  the  corporator  as  well  as  to 
the  public,  the  committee  had  seen  fit  to  recom- 
mend the  Convention  to  adopt  the  principle  that 
all  incorporations  shall  publish  at  stated  periods 
— as  often  as  once  a  year — in  the  paper  published 
in  the  vicinity  of  such  company,  a  statement 
showing  the  names  of  the  corporators,  an  appraisal 
of  its  property,  and  the  aggregate  amount  of  its  li- 
abilities, so  that  as  well  the  public  as  the  corpor- 
ator concerned  may  know  as  often  as  once  a  year 
its  state  and  conditions.  They  had  also  provider 
that  such  incorporations  shall  be  limited  in  the 
amount  of  debts  they  shall  contract.  And  al- 


223 


though  the  amount,  to  be  limited,  must  necessari- 
ly be  arbitrary,  the  committee  had  come  to  the 
conclusion  that  it  should  be  equal  to  the  whole 
capital  stock  and  undivided  profits.  To  be  more 
explicit:  if  an  incorporated  company  has  invested 
$100,000,  or  had  capital  to  that  amount  paid  in 
and  invested,  the  company  would  be  limited  to 
that  as  the  amount  of  debts  it  should  contract. 
Debts  to  the  amount  of  $100,000  might  probably 
be  salely  incurred  by  such  a  company,  inasmuch 
as  it  had  property  and  responsibility  to  that 
amount.  Thus  safeguards  were  thrown  around, 
not  only  the  people,  but  the  corporators  them- 
selves by  this  limiting  of  debts,  for  an  incorpora- 
tion properly  conducted,  could  not  in  any  event 
contract  debts  by  which  a  corporator  could  become 
seriously  injured  in  his  property.  The  commit- 
tee had  also  provided  a  limit  in  point  of  time,  be- 
yond which  a  claim  for  debt  should  not  be  defer- 
red, without  releasing  the  personal  responsibility 
of  the  corporator.  Every  person  failing  to  de- 
mand his  debt  within  one  year,the  committee  were 
of  opinion  should  lose  his  lien  on  the  corporation. 
And  this  seemed  to  be  necessary  to  enable  men 
to  wind  up  their  business,  and  to  know  when 
they  were  safe  after  they  had  sold  out.  These 
provisions,  though  to  some  they  might  seem  to 
bear  hard  on  corporators,  would  be  found  to  be 
for  the  safety  not  less  to  them  than  to  the  pub- 
lic— and  such  would  be  the  effect  of  limiting  the 
debts  and  the  periodical  publication  of  the  state 
of  their  affairs.  There  had  existed  for  over  thirty 
years  a  general  act  of  incorporation,  under  which 
a  large  number  of  incorporations  had  been  form- 
ed and  successfully  prosecuted  for  years ;  but 
under  that  a  different  rule  prevailed  as  to  the  li- 
ability of  corporators — one  which  in  the  judg- 
mer  i  of  the  committee  was  less  equitable — for 
the  corporators  were  made  liable  to  the  amount 
of  their  share,  be  it  more  or  less.  They  were 
made  to  be  security  for  their  co-corporators,  and  th«- 
committee  were  of  opinion  that  every  one  should 
be  responsible  for  himself  only,  or  for  such  por- 
tion or  shfire  as  he  owns,  leaving  the  insolvency 
among  the  corporators  to  be  provided  for  as  other 
cases  of  insolvency  were.  They  put  it  on  the 
principle  <f  equity,  that  he  who  has  the  advan- 
tage of  gain  lor  such  a  shire,  shall  be  answerable 
for  the  loss  of  the  same  share  and  no  more.  The 
committee  have  not  deemed  these  incorporations 
an  injury  to  the  public,  but  on  the  contrary,  an  es- 
sential  benefit.  They,  viewed  them  as  very  use- 
ful institutions  for  the  employment  of  capital,  the 
developement  of  enterprise,  and  to  carry  on  the 
business  which  requires  greater  capital  than  indi- 
viduals or  limited  partnerships  can  conveniently 
furnish.  They  had  therefore  made  provision  so  as 
Jo  render  them  sate,  and  put  restraints  upon  their 
abuse,  corresponding  with  the  restraints  which 
nature  had  imposed  on  the  natural  persons.  It 
made  no  difference,  in  the  estimation  of  the  com- 
mittee, whether  business  was  carried  on  by  corpo- 
rators or  otbeis,  si  lung  *s  the  business  was  legiti- 
mate,  and  paly  legitimate  business  should  be  so 
conducted.  But  this  system  would  allow  men  of 
:  means  to  come  in  and  unite  in  carrying  on 
business.  The  principle  was  democratic;  bu: 
when  these  privileges  weie  limited  toafe-v  — 
when  special  privileges  were  granted  to  some  and 
denied  to  others,  it  was  opposed  to  every  princi- 


ple of  democracy.  He  moved  that  the  report  be 
ommitted  to  the  committee  of  the  whole,  and 
printed. 

Mr.  SANFORD  moved  to  print  double  the  usu- 
al quantity ;  as  it  was  a  most  important  report. 

Mr  CHATFIELD  concurred  in  the  report  and 
thought  it  a  very  able  one,  but  opposed  the  extra 
number. 

Mr.  SHEPARD  was  in  favor  of  printing  the  ad- 
ditional number  of  copies,  moved  by  the  gentle- 
man from  St  Lawrence.  He  thought  the  report  ot 
vast  importance  to  the  business  community.  No 
other  report  to  this  Convention  would  involve 
larger  interests,  or  arouse  more  inquiry.  Great 
commercial  questions  were  involved  in  it.  It  was 
therefore  desirable  that  members  should  have  a 
sufficient  number  of  copies  to  send  to  business  men 
of  their  acquaintance  who  mitjht  return  to  the 
sender  their  views  upon  the  subject  for  the  bene- 
fit of  the  Convention  and  the  State. 

Mr  RICHMOND  supposed  that  all  the  matters 
in  all  these  reports  would  be  very  important;  or 
they  would  not  have  raised  any  committees  to  con- 
sider them  ;  but  the  first  sight  we  shall  get  of  them 
all,  wili  be  in  the  daily  papers  here;  the  report- 
ers will  with  their  untiring  industry  and  activi- 
ty, spread  them  like  lightning  all  over  the  State, 
as  well  as  our  remarks.  And  the  best  way  was 
to  send  a  newspaper  to  those  of  our  constituents 
who  wanted  to  see  the  report. 

Mr.  MURPHY  wished  to  know  if  in  the  insur- 
ance companies,  the  personal  liability  should  ap- 

piy- 

Mr.  LOOMIS  s^id  it  was  expressly  stated  that 
it  would  riot.  For  although  the  corporators  in 
those  companies  gain  a  benefit,  yet  as  they  set 
aside  a  specific  fund  to  provide  for  all  loss;  and 
as  this  loss  is  always  the  result  of  accident,  and 
not  of  mismanagement,  the  committee  had  not 
made  them  liable  as  in  other  corporations 
^Mr.  PATTERSON  wished  to  see  some  uni- 
formity observed  in  the  printing  of  these  reports. 
Now,  by  to-morrow  night  the  Albany  papers  con- 
taining them  would  be  in  New- York,  in  Buffalo, 
and  he  did  not  know  how  far  north,  so  that  every 
business  man  could  see  them  there.  Before  he 
could  get  his  copies  of  a  report  from  the  printer, 
the  newspaper  in  his  county  of  Chautauque  had 
come  back  to  him,  containing  the  report,  copied 
from  an  Albany  paj^r.  If  we  could  have  them 
on  our  table  next  day  he  should  like  it ;  but  we 
can  not  compete  with  the  newspapers. 

Mr.  KIRKLAND  said  if  they  departed  from 
the  rule  they  would  have  a  debate  on  all  the  va- 
rious reports ;  each  one  would  think  a  certain  re- 
port very  important  to  his  particular  section  of 
the  country  It  would  be  a  great  expense,  and 
create  invidious  distinctions  between  the  reports 
of  the  different  committees.  The  newspapers 
would  spread  it  in  48  hours  before  every  business 
man  in  the  State. 

Mr.  SIMMONS  wanted  their  practice  to  con- 
form to  their  theory,  and  to  stick  to  the  general 
rule,  and  not  to  adopt  a  special  rule  for  each  par- 
ticular report. 

Mr.  RUSSELL  wanted  an  extra  number,  so  as 
to  send  them  to  tiis  constituents,  on  fair  paper, 
with  lines  between,  so  that  those  gentlemen  who 
had  thought  much  on  the  subject,  might  write  on 
them  such  amendments  as  they  thought  proper. 


224 


Why  should  they  haggle  about  an  extra  number ; 
his  share  would  only  be  12  out  of  1600,  and  he 
wanted  them  all. 

Mr.  CHATFIELD  asked  if  this  was  deemed 
more  important  than  the  report  of  the  bankingcom- 
mittee  relative  to  the  whole  monied  interests  of 
the  State.  The  same  reason  Mr.  RUSSELL,  urged 
would  apply  with  equal  force  to  the  report  of  any 
other  committee.  He  could  not  sit  down  there 
and  say  that  any  one  of  his  constituents  was  more 
entitled  to  these  than  another.  And  there  were 


no  twelve  gentlemen  among  his  constituents  that 
deserved  this  preference.  He  wished  the  rule 
preserved. 

Mr.  RUSSELL  being  a  member  of  the  com- 
mittee had  thought  it  indelicate  for  him  to  pro- 
pose to  have  an  extra  number  printed.  And  even 
when  he  had  thought  it  necessary  to  make  a  few 
remarks  explanatory  of  the  reasons  why  he  dif- 
fered partially  with  that  committee,  his  remarks. 
had  been  likely  to  have  been  trampled  under  foot, 
and  he  himself  voted  a  disorderly  person.  And 
the  lash  had  been  held  up  before  them  there — the 
gentleman  from  Chautauque  had  let  him  off  that 
-once,  he  presumed,  on  the  supposition  that  he  was 
too  ignorant  of  parliamentary  law  to  act  other- 
wise, and  too  inexperienced,  but  he  had  given 
notice  that  he  would  not  let  any  other  gentleman 
off  in  the  same  way.  Was  it  a  harsh  request  to 
want  to  have  1600  copies  printed  ? 

Mr.  STRONG  said  that  he  felt  a  good  deal 
alarmed  if  on  every  little  question  of  printing  such 
a  terrible  debate  was  to  be  got  up ;  and  gentle- 
men were  all  going  to  work  themselves  up  into 
such  a  perfect  state  of  phrenzy.  He  wished  to 
know  of  the  chair  if  it  would  be  in  order  to  move 
the  previous  question  ? 

The  PRESIDENT  said  it  would. 
•     Mr.  STRONG  :     Then   I  shall  certainly  move 
the  previous  question  if  I  can  get  the  floor. 

Mr.  WATERBURY  said  that  when  his  folks  in 
Delaware  had  sent  on  to  him  for  information  about 
these  reports,  he  had  told  them  they  would  be  ol 
no  use,  until  they  were  altered  and  voted  on  ;  and 
then  they  could  get  them  through  the  newspapers. 

800  copies  were  ordered,  and  it  was  referred  to 
the  committee  of  the  whole. 

RETURNS  FROM  LAW  COURTS. 

Mr.  J.  TAYLOR  presented  a  report  from  the 
special  committee  on  communications  from  pub- 
lic officers ;  they  had  embodied  the  footings  ol 
the  abstracts. 

Mr.  TOWNSEND,  while  the  question  was,  in 
a  measure,  before  the  house,  would  like  to  inquire 
of  the  Chairman  of  the  committee,  what  pro- 
portion the  abstracts  just  handed  up,  embraced  o 
the  amount  of  judicial  costs  within  this  State  for 
the  year  1845  ?  He  understood  the  judgments 
returned  to  have  amounted  to  some  $4,000,000 — 
whilst  the  costs  were  $232,000.  In  1840— it  was 
stated  on  this  floor  without  contradiction — the 
costs  alone  of  court  in  this  State,  for  some  recen 
year,  were  as  much  as  $4,000,000. 

Mr.  /.  TAYLOR  stated  that  the  returns  were 
only  complete  from  the  Supreme  Court  and  from 
47  of  the  60  County  Courts 

Mr.  TOWNSEND  was  pleased  to  hear  that  the 
reports  from  the  Common  Pleas  were  so  full. 

Mr.  TAYLOR  said  the  returns  were  quite  full 


rom  the  Supreme   Courts,  except   the   first    6 
months  of  1845,  from  the  Court  in  Albany. 

Mr.  NICOLL  wished  the  abstracts  to  be  print- 
ed ;  as  lawyers  &c.  wanted  to  compare  relatively 
';he  expenses  of  the  judicial  system  in  detail 
hroughout  the  State,  and  that  was  the  only  way 
;o  get  at  it.  800  copies  of  the  report  were  order- 
ed, and  150  of  the  abstract.. 

PARDONS. 

The  following  report  was  received  from  the 
(jovernor  : 

EXECUTIVE  CHAMBER,         > 
ALBANY,  July  2, 1848.  J 
To  the   Convention: 

In  compliance  with  a  resolution  of  the  Convention,  in 
the  following  words — 

«'  Resolved,  That  the  Governor  be,  and  he  is  hereby  re- 
'  quested  to  furnish  to  the  Convention, 

"  1.  The  number  of  applications  for  pardon  for  criminal 
1  offences  made  during  the  year  1845. 
•'  2.  The  number  of  pardons  granted  upon  such  applica- 
'  tions  during  the  said  year." 

I  have  the  honor  to  state  that  it  has  not  been  customary  in 
his  office,  to  endorse  upon  the  papers  connected  with  ap- 
plications for  pardons,  the  time  of  their  receipt.  ^Of  the  ap- 
^  lications  on  file  therefore,  and  undisposed  of,  it  is  diffi- 
cult to  tell,  with  perfect  precision,  which  were  received 
near  the  close  of  the  year  1845,  and  which  in  the  early 
part  of  the  year  1846.  The  partial  or  final  disposition  oi 
the  cases  however,  when  endorsements  are  made  with  the 
proper  dates,  and  the  dates  of  the  papers  connected  with 
the  applications  themselves,  render  it  practicable  to  make 
an  enumeration,  so  far  as  the  files  of  the  officer  present  the 
data,  which  cannot  vary  materially  from  the  truth. 

The  fac  s  that  many  applications  are  made  without  any 
papers,  or  upon  a  mere  letter,   or  other  paper,   wholly  un- 
mportant   for  the  office  files,  as  containing  no  material 
fact-,  and  that,  in  many  other  cases,  papers  presented,  ex- 
amined and  pronounced  insufficient,  ar<;  withdrawn  by  the 
rrson  presenting  them  and  are  not  leit  to  be  filed,  make 
impossible  from  the  files  of  the  office,  to  answer  with 
accuracy  the  first  inquiry. 

It  is  proper  further  to  remark  that  the  same  case  is  of- 
ten made  the  foundation  for  more  than  one,  and  some- 
times for  several  applications. 

The  files  of  the  office,  as  nearly  as  a  count  can  be  made 
from  the  papers,  show  that  six  hundred  and  ninety  three 
applications  for  pardons  of  all  description,  were  made  and 
considered  during  the  year  1845,  not  including  the  cases 
of  mere  verbal  applications,  nor  cases  where  the  papers 
were  withdrawn.  Applications  of  these  two  classes  are 
very  numerous,  but  I  have  no  databy  which  I  can  make 
an  estimate  of  the  number  of  either,  upon  which  any  con- 
siderable degree  of  confidence  can  be  placed,  and  I  there 
fore  do  not  attempt  to  estimate  them. 

From  the  applications  made,  the  following  pardonewere 
granted  during  the  year  1845,  namely: 

Pardons  from  the  State  Prisons JM 

»«          "          County  Prisons • 30 

"          "          Penitentiary,  New  York 9 

"     to  restore  citizenship 24 

"      to  commute  sentences  of  death  to  imprison- 
ment in  the  State  Prison  for  life 2 

•Whole  number  of  pardons  issued  during  the  year 
1845, 169 

To  show  how  perfectly  an  ex  parte  business  it  is  to 
prefer  these  applications  for  pardons,  it  may  not  be  impro- 
per to  state,  that  in  but  sixteen  cases  out  of  the  whole  num- 
ber presented  during  the  year  1845,  was  there  remon- 
strance or  opposition,  or  unfavorable  expression  of  any 
description 

All  which  is  respectfully  submitted. 

SILAS  WRIGHT. 

After  some  conversation,  the  report  was  order- 
ed printed  and  referred  to  standing  committee 
No.  3. 

Mr.  HARRIS  had  leave  to  present  at  this  time 
a  memorial  from  citizens  of  Albany  on  various 
subjects  connected  with  the  business  of  the  Con- 
vention. He  was  also  requested,  to  ask  for  it:- 
reading. 


225 


At  the  suggestion  of  Mr.  RUSSELL,  the  report 
was  suffered  to  lay  on  the  table  until  the  next  sit- 
ting. 

THE  RECESS. 

Mr.  TAYLOR  moved  a  reconsideration  of  the 
vote  taken  yesterday  on  the  resolution,  relative 
to  the  adjournment  from  to  day  until  next  Tues- 
day. Mr.  T.  said  that  if  the  time  was  fixed  to 
allow  members  to  go  home,  it  was  too  short,  ex- 
cept for  those  being  in  the  vicinity,  and  was, 
therefore  unequal — or  if  it  was  in  honor  of  the 
4th  of  July,  then  it  was  too  long.  For  himself  it 
was  a  matter  of  little  consequence,  but  he  made 
the  motion  at  the  request  of  several  gentlemen, 
with  a  view  to  extend  the  time  of  adjournment 
until  the  13th  inst. 

Mr.  PATTERSON  was  in  favor  of  shortening, 
rather  than  lengthening  the  time.  He  was  in  fa- 
vor of  an  adjournment  over  on  the  4th,  but  for  no 
longer  period.  The  time  he  urged  was  needed 
here  if  the  work  of  the  Convention  was  to  be 
submitted  to  the  people  in  time  for  their  action. 
If  every  proposition  was  to  be  discussed,  as  the 
one  under  consideration  during  the  last  four  days, 
the  election  in  November  would  still  find  the 
Convention  in  session.  Besides  he  did  not  be- 
lieve it  to  be  right  to  adjourn  for  two  weeks  and 
charge  the  State  for  labor  not  performed. 

Mr.  TAYLOR  again  urged  the  inequality  of  the 
present  period  and  also  that  the  time  should  not 
be  shortened. 

Mr.  CHATFIELD  also  urged  that  it  would  be 
an  injustice  to  the  people,  for  the  members  of 
the  Convention  to  absent  themselves  more  than 
was  possible  from  their  business.  As  to  adjourn- 
ing on  the  fourth  he  had  no  objection  to  that. 

The  conversation  was  further  continued  by 
Messr>.  TAYLOR,  RUSSELL,  FLANDERS, 
STRONG,  DANFORTH,  HOFFMAN,  and  HAR- 
RIS, in  favor  of  the  reconsideration,  on  the  ground 
of  its  being  due  to  the  members  who  resided  at  a 
distance  from  Albany,  arid  who  would  not  be  able 
to  avail  themselves  of  the  time,  as  now  fixed. 

Messrs.  KIRKLAND,  BRUCE,  RICHMOND, 
SIMMONS,  and  CHATFIELD,  in  reply,  urged 
that  there  was  no  need  of  any  adjournment  ex- 
cept merely  for  the  4th  of  July,  and  that  every 
moment  of  time  was  required  for  the  deliberation 
of  the  Convention,  in  order  to  perfect  the  work 
in  season. 

The  question  was  then  taken  on  the  motion  to 
reconsider,  by  ayes  and  nays,  on  the  call  of  Mr. 
CHATFIELD,  arid  it  prevailed,  ayes  50,  nays  45, 
as  follows : 

AYES— Messrs.  Allen,  Ayranlt,  H.  Backus,  Bruce,  Bull* 
D  D.  Campbell,  Chamberlain,  Conely,  Cook,  Crocker 
Danforth,  Dodd,  Flanders,  Forsyth,  Greene  Harris,  Hoff 
jnau,  Hunt,  A.  Huritingtoii,  Hutchinson,  Kings-ley,  McNeil- 
Miller,  Morris,  Murphy,  Nelson.  Nicoll,  O'<  oiior,  Penni, 
man,  Richmond,  Russell,  SanCord,  Shaw,  Sheldon,  Shep- 
ard,  Smith,  \V  H.  Spencer,  Stephens,  Stow, Str .  ng,  S\va  k 
hamer,  Taggart,  J.  J.  Taylor,  VV.  Taylor,  To\\  nsei.d,  vv  ar- 
ren,  Waterbury,  Witbeck,  A.  Wright,  Yawger,  the  Presi- 
dent—60. 

NAYS -Messrs.  Bascom,  Bergen,  Bouck.Bowdish,  Brjy. 
ton,  Brundajie,  Lurr,  R.  Campbell,  jr.,  Chatfield,  Clj  de, 
Cornel!,  Dorlon,  Duhois,  Gebhard,  Graham,  1 1  an,  Hotch- 
kiss.  Jordan,  Kemble,  K«-rn;m,  Kirkland,  Mann,  Ne.lis, 
Nicholas,  Parish,  Patterson,  Peikins,  P-rter,  Powers,  Rug- 
gles,  St.  John,  Salisbury,  Sears,  Shaver,  Simmons,  K  Spcn. 
cer,  Stauton,  Talimadge,  Tuihill,  Van  Schoonhoven,  Wil. 
lard,  Wood,  W.  B.  Wright,  A.  W.  Young,  J.  Youngs-45. 

Mr.  TAYLO*R  (hen  moved  to  amend  so  as  to 


piovide  that  when  the  Convention  adjourned  to- 
dav,  it  nonlH  be  to  meet  on  Monday  the  13th  inst., 
at  10  o'clock. 

Mr.  PATTERSON  moved  that  the  Convention 
do  now  adjourn.  Lost. 

Mr.  CHATFIELD  moved  to  amend  thejimend. 
rnent  so  as  to  provide  that  when  the  Convention 
adjouined  tomorrow,  it  would  be  to  meet  on  Mon- 
day next  at  10  o'clock. 

The  amendment  was  rejected — ayes  37,  nays5f>, 
as  follows: 

AYES— Messrs.  Allen, Bowdish, Bruce,  Bmndaere,  Barr, 
R.  Campbell,  jr.,  Chatfh  Id,  Clyde.  Du>  ois,  Gebhani. 
Hotchkiss,  A  Huntingdon.  Jordan. Kernan.Kiikl;  nd.IV'ann, 
Nellis,  Nicholas,  Parish,  Patterson,  Perkins,  Richmond, 
Ruggles,  St.  John,  Salisbury,  Stars,  Shaver,  Simmons,  E. 
Spencer,  Stanton,  Stow,  Swackhamer.  Tacgart,  J.  J.  Tay- 
lor, Van  Fchoonhoven,  Willard,  W  B.  Wright,  J.  Younge. 
the  President— 37- 

NAYS— Messrs.  Ayrault.  H. "Backus,  Bascom,  Bergen, 
Bouck,  Brayton.  Bull,  D.  D.  Campbell,  Chamberlain,  Co- 
nely, Cook.  Cornell,  Crooker,  Danforth,  Dodd,  Dorlon, 
Flanders,  Forsyth,  Graham.  Greene.  Harris,  Hoffman, 
Hunt,  Hutchinson,  Kenible.  King-ley,  McNeil,  Miller, 
Morris,  Murphy,  Nelson,  Nicoll,  O'Conor,  P<  nniman,  Por- 
ter, Powers,  Kussell,  Sanford,  Shaw,  Shellon,  Shepard, 
Smith,  W.  H.  Spencer,  Stephens,  Strong,  Talimadge.  W. 
Taylor,  Townsend,  Tuthill,  Warren,  Waterbury,  Wood, 

A.  Wjight,  Yawger,  A.  W.  Young-55. 

Mr  BASCOM  moved  that  the  Convention  ad- 
journ for  one  week  from  to  day. 

The  PRESIDENT  said  the  motion  was  not  in 
oHer. 

Mr.  BURR  moved  to  amend  so  as  to  adjourn 
until  Wednesday  the  15th  of  July.  Lost,  without 
a  division. 

Mr.  BASCOM  moved  to  amend  so  as  to  adjourn 
until  Thursday  the  19th.  Lost. 

The  question  was  then  taken  on  the  motion  of 
Mr.  TAYLOR,  to  adjourn  until  the  13th.  Lost — 
ayes  40,  noes  49,  as  follows  : 

AYES— Messrs.  Ayrault,  H.  Backus,  Bull,  D  D  Camp- 
bell, Chamberlain,  Conely,  Cook,  Crocker,  Danforth,  Dood, 
Flanders,  Korsyth,  Greene,  Harris,  Hoffman.  Hunt,  Hut- 
chinson, Kemble,  Kingsley,  McNeil,  Miller,  Morris,  Nel- 
son, Nicoll,  O'  'onor,  Penniman.  Porter,  Russell,  Sanford, 
Shaw,  Sheldon,  Shepard,  Smith,  W.  H.  Spencer,  Stephens, 
Stow.  Strong,  Taggart,  J  J.  Taylor,  W.  Taylor.  Town- 
send,  Tuthill,  Warren,  Waterbury,  A.  Wright,  Yawger— 
46. 

NOES— Messsrs.  Allen,  Bascom,  Bergen,  Bonck,  Bow- 
dish,  Brayton,  Bruce,  Brundage,  Burr,  R.  Campbell,  jr., 
Chatfield.  Clyde,  Cornell,  Dor'on,  Duhois,  Gebhard,  Gra- 
ham, Hart,  Hotchkiss,  A.  Huntington,  Jordan,  Kernan, 
Kirkland.  Mann,  Murphy,  Nellis  Nicholas,  Parish  Patter- 
son, Perkins,  Powers,  Richmond,  Ruggles  St.  John,  Salis- 
bury, Sears,  Shaver,  Simmons,  E.  Spencer,  Stanton,  Swack- 
hamer, Talimadge,  Van  Schoonhoven  Willard,  Wood,  W. 

B.  Wright,  A.  W.  Young,  J.  Youngs,  The  President— 49. 

Mr.  PERKINS  had  leave  of  absence  until  the 
21st ;  Mr.  WATERBURY  until  the  13th  ;  Messrs. 
YAWGER,  MILLER  and  SHEPARD  for  one  week. 

Mr.  CHATFIELD  moved  that  the  Convention 
adjourn,  but  withdrew  his  motion  at  the  instance 
of 

Mr.  O'CONOR,  who  urged  that  it  was  due  to 
the  members  who  were  absent,  and  those  who  had 
made  their  arrangements  to  be  absent,  that  the 
original  resolution  should  be  adopted. 

It  was  adopted. 

And  then  the  Convention  adjourned  till  Tues- 
day morning  next  at  10  o'clock. 

TUESDAY,  (29th  day,}  July  7. 
The  PRESIDENT,  at  ten  minutes    past  10 
o'clock,  directed  the  Secretary  to  call  the  roll. 


226 


The  roll  was  accordingly  called,  and  a  bare 
quorum  answered. 

Mr.  RUSSELL  inquired  if  the  names  of  the 
absentees  would  be  entered  on  the  journal  ? 

The  PRESIDENT  replied  in  the  negative,  un- 
less a  motion  was  made  for  that  purpose. 

Mr.  RUSSELL  moved  the  names  of  the  absen- 
tees be  entered  on  the  journal. 

The  PRESIDENT  requested  the  gentleman 
from  St.  Lawrence  to  suspend  his  motion  until 
the  Convention  arrived  at  that  order  of  business — 
motions,  &c. 

Mr.  RUSSELL  assented. 

The  journal  of  Thursday's  proceedings  were 
then  read  and  approved. 

The  PRESIDENT  presented  a  report  from  the 
Clerk  of  the  second  Chancery  Circuit,  in  answer 
to  a  resolution  calling  for  statements  respecting 
infant's  estates,  and  which  was  referred  to  the 
committee  on  the  judiciary. 

The  PRESIDENT  laid  before  the  Convention 
a  communication  from  James  Connor,  Esq.,  clerk 
of  the  city  and  county  of  New  York,  accompany- 
ing a  map  of  the  several  districts  of  the  7th  ward, 
thereby  perfecting  the  map  of  the  county.  Re- 
ferred to  the  first  standing  committee. 

The  PRESIDENT  also  presented  a  communi- 
cation from  the  Comptroller,  in  relation  to  the 
debts  and  revenues  of  the  State,  which  was  ap- 
propriately referred. 

PERSONAL  LIABILITY. 

Mr.  COOK  offered  the  following  resolution: 
Resolved,  That  the  standing  committee  on  currency 
and  hanking  be  instructed  to  enquire  and  report  concern- 
ing the  expediency  of  a  constitutional  provision,  requir- 
ing the  legislature  to  pass  a  law  for  the  equitable  liquida- 
tion of  the  personal  liability  of  banks  to  their  creditors, 
to  prevent  unnecessary  litigation  and  delay  in  the  enforce- 
ment of  such  liabilities. 

Mr.  TOWNSEND  asked  what  the  gentleman 
intended  by  the  words  personal  liability  of  bank- 
ers ?  He  supposed  there  were  no  cases  where 
they  were  liable,  except  those  covered  by  the  re- 
port of  the  committee  on  that  subject. 

Mr.  COOK  replied  that  to  make  bankers  issu- 
ing currency  responsible  personally  was  one 
thing — but  to  provide  the  means  by  which  this 
liability  should  be  adjusted,  and  liquidated  with- 
in a  reasonable  time,  was  another.  He  would 
vote  to  make  them  personally  liable  so  far  as  cur- 
rency was  concerned,  provided  some  speedy  mode 
of  settlement  was  provided  by  law— but  he  would 
not  vote  for  it  to  go  into  effect  under  existing 
laws. 

Mr.  RUSSELL  was  happy  that  the  gentleman 
had  called  attention  to  this  important  subject. — 
The  great  objection  to  the  principle  of  personal 
liability  of  stockholders,  was  the  impracticability 
under  our  laws  of  effecting  a  speedy,  certain  and 
just  settlement  of  these  ILiabilites.  In  England, 
Scotland  and  other  countries,  provision  had  been 
made  for  such  settlements,  which  had  been  found 
to  work  well  in  cases  of  insolvency.  Here  the 
effort  to  settle  such  matters  had  only  resulted  in 
a  ridiculous  bandying  of  the  matter  about  from 
court  to  court,  without  effecting  the  desired  ob- 
ject, and  making  unpopular  a  great  and  just  prin- 
ciple. Mr.  R.  would  compel  the  legislature  to 
provide  for  the  equitable  adjustment  of  these  lia- 
bilities— and  this,  in  his  judgment,  would  be  per- 


fectly easy — bysome  such  mode  as  was  in  vogue 
in  England,  requiring  a  registration  and  sale  of 
the  effects  of  the  insolvent  corporation — the  as- 
certtdnment  of  the  deficiency,  if  any,  to  meet  lia- 
bilities— and  the  share  pro  rata  which  each  stock- 
holder was  bound  to  make  good. 

Mr.  SIMMONS  of  course  had  no  objection  to 
the  enquiry.  The  existing  law  might  need 
amendment.  But  he  could  not  assent  to  all  the 
reasons  that  had  been  urged  for  it.  We  had  pre- 
cisely the  law  now  which  the  gentleman  from  St. 
Lawrence  seemed  to  wish  and  which  the  resolu- 
tion contemplated.  When  a  corporation  failed, 
where  the  stockholders  were  personally  liable,  a 
bill  was  filed  in  Chancery,  to  compel  a  pro  rata 
contribution,  after  selling  all  the  effects  and  ap- 
plying them  pro  tanto,  to  make  good  the  defi- 
ciency. And  thus  the  matter  was  all  settled  up. — 
Mr.  S.  knew  this  to  be  so,  for  he  had  done  it  him- 
self. 

Mr.  RUSSELL  asked  if  proceedings  were  stay- 
ed against  individual  stockholders,  until  after  the 
deficiency  had  been  ascertained  and  assessed 
among  the  stockholders  ? 

Mr.  SIMMONS  replied  that  the  Chancellor 
controlled  that  matter.  He  knew  of  a  case  where 
two  men  went  on  and  got  judgments  against  stock- 
holders, before  the  sale  and  application  of  the 
effects,  and  the  Chancellor  refused  costs.  Other- 
wise too,  immense  sacrifices  must  ensue  from  the 
litigation  that  would  grow  out  of  allowing  an  in- 
dividual stockholder  to  be  sued  for  the  entire 
amount  of  a  debt ;  he  to  turn  round  and  sue  oth- 
ers for  their  contributions.  The  gentleman  from 
St.  Lawrence  would  find  that  our  predecessors 
knew  something  after  all,  and  had  got  all  this 
thing  beautifully  arranged  so  that  such  matters 
could  be  all  easily  settled  up.  In  the  case  he  al- 
luded to,  the  contribution  was  less  than  half  each 
one's  stock. 

Mr.  RUSSELL  replied  that  the  legal  and  learn- 
ed gentleman  might  be  correct ;  but  Mr.  R.  knew 
one  instance  of  a  gross  perversion  of  law  and  liti- 
gation growing  out  of  such  a  case.  The  Rossie 
mining  company,  upon  its  failure  had  liabilities 
to  the  amount  of  $45,000.  An  immense  amount 
of  costs  had  accumulated,  and  though  the  case 
happened  six  years  ago,  the  litigation  had  not 
been  finally  settled  to  this  day.  Mr.  R.  knew 
that  a  bill  was  filed  by  one  stockholder  before  a 
vice  chancellor  to  compel  two  or  three  others  to 
make  contribution,  and  it  was  thrown  out  by  the 
vice  chancellor.  The  courts  of  law  decided  that 
a  bill  be  filed  in  chancery  against  all  the  corpora- 
tors— and  that  bill  was  thrown  out  on  the  ground 
that  he  had  no  jurisdiction.  Now,  Mr.  R.  would 
save  the  expense  of  chancery  proceedings.  A 
commission  should  be  appointed,  as  in  cases  of 
bankruptcy— through  which  stockholders  might 
be  compelled  to  pay  in  their  rateable  proportion 
of  the  assets  to  be  used  in  paying  debts.  Such  a 
law  would  be  vastly  beneficial  in  his  opinion— at 
all  events,  the  enquiry  could  do  no  harm. 

Mr.  CAMBRELENG  merely  rose  to  express 
his  concurrence  in  the  propriety  of  the  resolution 
— as  the  committee  of  which  he  was  one,  were 
acting  on  the  subject  of  general  liability.  It 
struck  him,  from  the  tenor  of  this  debate,  that  the 
difficulty  now  arose  from  our  judiciary  system. — 
It  seemed  to  be  a  contest  between  chancery  and 


227 


law.    Between  the  judiciary  and  bank  committees, 

remedy  for  existing  evils  would  no  doubt  be 

^led — for  if  the  legislature  had  not  or  would 

not  do  its  duty,   the  Convention  should   instruct 

them. 

Mr.  RUGGLES  hoped  the  resolution  would 
pass.  The  remedy  now  in  these  c.ises  was  intri- 
cate, tedious  and  difficult  to  be  understood  by  the 
most  careful  attention.  There  were  various  lia- 
bilities of  corporations — sometimes  against  the 
directors  and  mother  cases  against  stockholders — 
and  it  was  difficult  in  some  instances — the  profes- 
sion had  found  it  so,  to  draw  a  bill  in  chancery 
to  meet  the  particular  case  precisely.  The  plan 
proposed  by  the  gentleman  from  St.  Lawrence 
was  the  correct  one.  A  commission  mis>htbe  ap- 
pointed with  full  power  to  investigate  all  the  facts 
and  decide  on  every  matter  in  relation  to  an  insol- 
vent corporation — and  the  facts  being  ascertained 
oti  which  the  bill  was  based,  it  could  then  be 
safely  drawn.  Mr.  R.  thought  a  system  might  be 
framed  which  would  be  safe,  convenient  and 
speedy,  by  which  stockholders  might  find  out  the 
situation  of  companies  in  which  they  were  inter- 
ested, and  creditors  could  have  their  claims  set- 
tled without  expensive  litigation. 

The  resolution  was  adopted. 

Mr.  WHITE  offered  the  following  resolution  : 

LEGISLATIVE  SESSIONS 

Reso  veJ,  That  the  Comptroller  be  requested  to  report 
*o  thti  Convention  the  duration  of  each  session  of  the  legis- 
lature for  th«  years  1841,  '2,  '3,  '4  and  '5. 

Mr.  WORDEN  doubted  if  the  Comptroller 
knew  anything  about  it. 

Mr.  CAMBRELENG  suggested  that  the  Secre- 
tary of  State  should  be  substituted  for  the  Comp- 
troller. 

Mr.  WHITE  assented  to  the  suggested  amend- 
ment. 

Mr.  TOWNSEND  suggested  an  amendment,  to 
call  for  the  amount  of  compensation  that  was  paid 
to  those  legislatures  respectively. 

Mr.  WHITE  assented,  ajtd  the  resolution  as 
amended  was  agreed  to. 

ABSENT  MEMBERS. 

Leave  of  absence  was  granted  to  Mr.  SHAW  for 
4  days ;  Mr.  ST.  JOHN  for  5  days ;  Mr.  ANGEL  un- 
til Monday  next ;  Mr.  HYDE  for  10  days,  and  Mr. 
FORSYTH  for  10  days. 

Mr.  WORDEN,  while  these  motions  were  be- 
ing made,  had  no  objection  to  them,  but  the  pro- 
ceedings was,  to  say  the  least,  unusual,  and  an 
unnecessary  consumption  of  the  time  of  the  Con- 
vention. Why  ask  leave  of  absence,  unless  the 
Convention  has  power  to  punish  its  members  for 
being  absent  ?  Now  he  knew  of  no  such  power 
being  possessed  by  the  Convention.  If  gentlemen 
were  disposed  to  absent  themselves  with  or  with- 
out leave,  the  Convention  could  not  interpose, 
and  it  was  therefore  an  unnecessary  waste  of  time 
:V-r  and  act  upon  these  resolutions  and  to  re- 
cord them  on  the  journal.  He  doubted  if  they 
could  even  call  the  House,  in  the  parliamentary 
mode  of  proceeding. 

The  PRESIDENT  announced  the  unfinished 
business  to  be  next  in  order. 

Mr.  WORDEN  said  it  seemed  to  him  in  this 
very  thin  state  of  the  house  it  was  hardly  discreet 
ti  go  into  committee  of  the  whole,  and  pass  any 
resolution  or  take  any  vote  to-day,  for  there  are 


enough  away  probably,  with  the  aid  of  gentlemeu 
who  are  here,  to  move  a  reconsideration  at  any 
time,  and  thus  consume  much  time  unnecessarily. 
It  struck  him  they  would  not  promote  the  busi- 
ness but  rather  retard  it  by  giving  occasion  for 
motions  of  reconsideration,  and  they  had  there- 
fore better  adjourn  until  to-morrow. 

Mr.  CROOKER  remarked  that  there  were  about 
70  members  present,  and  he  apprehended  they 
would  not  have  more  for  a  week. 

Mr.  WORDEN  replied  that  he  would  adjourn 
for  a  week  then.  He  found  that  many  of  those 
gentlemen  who  made  eloquent  speeches  against 
any  adjournment  the  other  day,  were  now  absent. 

Mr.  STRONG  desired  the  gentleman  from  On- 
tario to  withdraw  his  motion,  to  enable  him  to  ask 
for  leave  of  absence  for  a  gentleman. 

Mr.  WORDEN  assented. 

Mr.  STRONG  then  asked  for  leave  of  absence 
for  Mr.  CHATFIELD  for  two  days.  [Laughter.] 
He  was  sure  the  gentleman  from  Otsego  must  be 
sick,  or  he  would  be  present.  [Renewed  laugh- 
ter.] 

Leave  was  granted  unanimously. 

Mr.  WORDEN  had  no  desire  to  press  his  mo- 
tion, if  gentlemen  were  of  opinion  they  could  safe- 
ly proceed  with  business.  He  then  renewed  his 
motion. 

Mr.  KENNEDY  called  for  the  yeas  and  nays. 
He  desired  to  have  the  yeas  and  nays*  to-day  on 
s'ome  question,  and  he  thought  this  was  as  favor- 
able an  occasion  as  any  other. 

The  yeas  and  nays  were  ordered,  and  resulted 
thus,  yeas  7,  nays  72,  as  follows  : 

AYES— Messrs.  Hoffman,  Kingsley,  Rhoades,  Shaver, 
Simmons,  Townsend,  Worden— ?• 

NOK.S— Messrs.  Allen,  Archer,  Ayrault,  F.  F.  Backus, 
Baksr,  Bascom,  Bergen.  Bowdi^h,  Brayton,  Brown,  Bruce, 
Brundage,  Bull.Burr,  Camhreleng,  R.  Campbell,  jr.  Clydet 
Cook,  Crooker,  Cuddeback,  Dantbrth,  Dodd,  Dorlon,  Du- 
bois,  Flanders,  Gebhard,  Greene,  Hotc^kiss,  Hunt,  E. 
Huutington,  Kennedy,  Kernin,  Loomi?,  Mann,  McNeil, 
Maxwell,  Morris,  Nellis,  Nicholas,  Nicboll,  O'Connor, 
Parish,  Patterson,  Penniman,  Porter,  Riker,  Ruggles,  Rus- 
sell, Salisbury,  Sanford,  E.  Spencer,  W.  H.  Spencer,  Stan- 
ton,  Strong,  W.  Taylor  Tutlull,  White,  Willard,  Witbeck, 
Wood,  W.  B.  Wright,  A.  W.  Young,  the  President— 72. 

So  the  Convention  refused  to  adjourn. 

Mr.  WORDEN  said  his  object  was  the  same  as 
that  of  the  gentleman  from  New  York,  (Mr. 
KENNEDY.)  It  was  now  accomplished,  and  they 
had  now  an  opportunity  to  compare  the  list  with 
the  list  of  those  very  scrupulous  gentlemen  who 
spoke  here  so  eloquently  the  other  day  in  opposi- 
tion to  the  adjournment.  He  now  moved  that 
the  Convention  go  into  committee  of  the  whole 
on  the  article  which  had  been  previously  under 
consideration. 

EXECUTIVE  DEPARTMENT. 

The  Convention  resolved  itself  into  committee 
of  the  whole  on  the  report  of  Mr.  MORRIS,  on 
the  powers  and  duties  of  the  Executive,  Mr. 
PATTERSON  in  the  chair,  in  the  absence  of  Mr. 
CHATFIELD. 

The  CHAIRMAN  stated  the  question  to  be  on 
the  motion  of  Mr.  RUSSELL  to  strike  out  the 
second  section  and  insert  a  substitute  making 
every  qualified  elector  eligible  to  the  office  of  Go- 
vernor. 

Mr.  HUNT  wished  to  correct  a  serious  misap- 
prehension which  existed  in  many  quarters,  of 
the  bearing  of  his  argument  at  an  early  stage  of 


228 


this  discussion.     I  contended   (said  he)  that  we 
had  no  right  to  restrict  the  free  choice  of  the  peo- 
ple when  acting  in  their  sovereign  capacity,  and 
that  they  cannot  do  so  themselves   without  dero- 
gating from   their   sovereignty.     Many,   I   find, 
think  we  cannot  recognize  this  principle  without 
destroying   all  authority   over  the  citizen,  and 
placing  him  above  the  law.     This  misapprehen- 
sion comes  from  confounding  the  rights  and  pow- 
ers of  the  people  as  an  organized  whole,  with  the 
rights  and  powers  of  the  persons  constituting  this 
whole,  when  regarded  in  their  individual  capaci- 
ty.    This  distinction  should  be  always  kept  in 
sight.     The  people,  as  a  whole,  are  the  sovereign 
— the   persons   constituting  the  sovereignty  are, 
considered,    individually,    the    subjects.       The 
whole,  being  superior  to  the  parts,  can  give  laws 
to  the  parts,  and  give  laws  to  its  servants  and  de- 
puties also — but  it  cannot  give  laws  to  itself  with- 
out committing  an  absurdity  ;  for  law  is  the  voice 
of  a  superior  to  an  inferior,  not  of  an  equal  to  an 
equal.     Equals  bind  themselves   by  treaties,  not 
by  laws — and  no  power  can  make  a  treaty  with 
itself.     So   whether  you   regard  the   restrictions 
upon  the   sovereign   power    of    the   State   con- 
tained in   section    2,    in    the    light    of  a  con- 
tract   or  a  law,  they   are    invalid    and    absurd 
in  either    case. — Whenever    the    people   might 
choose  to  disregard  them  they  could  do  so,  and 
no  satisfaction  could  be  obtained  from  any  quarter. 
I   should    be   guilty  of  disrespect  were  I  nut   to 
notice  at  least  some   of  the   able   arguments    thai 
have  been  offered  by  gentlemen  who  dissent  from 
the  views  1  expressed.     Perhaps   I  he  most  effec- 
tive of  these  -arguments  was  that  of  my  esteemed 
colleague,  [Mr.    NICOLL..]     I  understood     him  to 
say,  in  s'ibstance,  that   the  principle   design   of  a 
constitution  was,  to  restrain  the  people  from  exer- 
cising undue  powers,  and  especially  from  plunder- 
ing or  oppressing  the  minoiity; — in  fact,  that  ihe 
restriction  of  the  power  ot  the  people    (not  their 
delegates)  within  due  bounds,  was  one  ot  the  great 
objects  we  were    chosen    to   accomplish.     But  1 
must  have  misunderstood  him.     Mr.  Jtfferson,   to 
whose  general  opinions  upon  governmen    my  col 
league  will  subscribe    quite  as  fully  as  I  do,   de- 
clares  that  "governments  are  republican   only    in 
proportion  as  they  embody  the  will  of  the  people 
and  execute  it,"     Ch.  Justice  Taney  says  (I  quote 
from  memory)   "  that  the  sovereignty  of  the  peo- 
ple can  never  be   limited  or  stopped;    for   if  this 
could  be  done  in  a  single  instance,   or  for  a  single 
day,  it  might  be  done  in  every  instance,   and  lor 
ever."     My  colleague's  remarks  would  have  much 
force  it  applied  to  the  federal  constitution,   which 
is  in  most  respects  a  permanent    treaty    between 
sovereign    States,     but    none    when    applied   to 
the  constitution  of  an    independent  State.     The 
gentleman    from     Chautauque     [Mr.     MARVIN" 
made  a  very  skilful   use  ot  the  doctrine  tha'    go- 
vernments derive  their  just  powers  from  the  con 
sent  of  the  governed.     Suppose   the    governed    o 
this  State  should  at  some  future  time  not  only  con 
sent  but  desire  to  he  governed  by  a  man  under  3( 
years  of  age,  would  he  carry  out  this   dor'rine  b 
forcing  an  older  man  upon  them  against  Iheir  wish 
ea?     The  gentleman  from  Allegany  [Mr    ANGEL 
considered  that  it  would  be  no  more  derogatory  t 
the  people  to  prohibit  them  from  electing  a  G( 
vernor  under  thirty    than  it  is  to  say    no    perso 


hall  have  power  to  bind  himself  by  any   contract 

hile  under  twenty-one.     If  he  will  show  me  that 

le  people  as  a  whole  are    not  sovereign,   or  that 

ndividuals  are  sovereign  ;  I  will  admit:  him  to  be 

orrect.     Until  he  does  so,  I  must  deny  that  there 

any  analogy  between  the  two  cases.     Any  man 

full  ae;e  may  delegate  almost  any  power  he  has 

o  a  deputy  or  agent  of  15  if  he  chooses.     Would 

deny  to  the  sovereign  a  discretion  which 
very  subject  of  mature  age  mav  fully  exercise? 
ut  I  do  not  feel  called  on  to  review  or  to  an- 
wer  all  the  arguments  advanced  against  the  doc- 
ine  I  advocate.  I  leave- that  to  abler  men.  My 
hief  motive  in  trespassing  upon  the  committee 
t  this  time,  is,  as  already  intimated,  to  show  that 
le  doctrine  of  the  sovereignty  of  the  people,  and 
f  the  inviolability  of  that  sovereignty,  by  no 
means  implies  that  individual  citizens  are  above 
le  law,  or  that  the  sovereign  is  absolute  or  law- 
ess.  My  notions  concerning  the  rights  and  pow- 
rs  of  government  are  briefly  these  : — The  only 
erfect  government  known  among  men,  is  self- 
overnment,  God  has  written  certain  laws  upon 
le  heart  of  each  individual,  and  requires  him  to 
overn  himself  by  them.  But  some  are  too  fool- 
sh  to  clearly  understand  these  laws,  and  thou- 
ands  are  too  wicked  to  obey  them.  Thousands 
ill  not  govern  themselves ;  and  they  must  there- 
ore  submit  to  a  greatly  inferior  government  from 
thers.  The  establishment  of  such  less  perfect 
;overnment  is  fully  justified,  and  can  only  be  jus- 
ified,  by  the  plea  of  necessity.  The  right  to  in- 
titute  artificial  government  is  incidental  to  the 
ight  of  self-preservation.  They  can  therefore 
laim  no  powers  that  are  not  strictly  subordinate 
.nd  subservient  to  this  right.  They  cannot  law- 
ully  meddle  with  the  man  who  will  and  wisely 
governs  himself,  unless  it  be  to  claim  his  aid  and 
lace  him  in  a  post  of  honor.  If  they  impose 
nnecessary  restraints — if  they  trample  upon 
private  rights— if  they  are  false  to  the  public  in- 

erests then    they    become    transformed    into 

yrannies.  They  are  no  longer  governments,  but 
ubjects  requiring  government  for  themselves  ;— 
and  it  is  the  duty  of  all  honest  men  to  unite  for 
heir  correction — or,  if  need  be,  for  their  over- 
irow.  But  while  they  exist  and  confine  them- 
selves to  their  legitimate  duties,  they  should  be 
respected,  and  all  their  attributes,  especially  the 
ital  attribute  of  sovereignty,  should  be  held  sa- 
cred. The  grand  objection  to  the  section  under 
consideration,  is,  that  it  seeks  to  restrict  the  so- 
vereignty in  its  legitimate  sphere  of  action— a 
course  not  only  wrong  but  absurd  ;  for  if  the 
power  restricting  be  not  greater  than  the  power 
restricted,  the  restriction  amounts  to  nothing — 
and  if  it  be  greater,  then  the  power  restricted  is 
no  longer  sovereign. 

Mr.  BASCOM  said  he  did  not  ask  the  com- 
mittee to  delay  action  on  his  own  account,  tho' 
he  had  but  just  reached  town  after  riding  all 
night,  He  intended  to  reply  to  the  positions  ta- 
ken by  two  or  three  gentlemen,  neither  of  whom 
were  now  in  their  seats— and  if  he  went  on,  it 
mio'ht  perhaps  appear  discourteous  to  them  to  re- 
ply0 in  their  absence.  But  if  such  was  the  pleas- 
ure of  the  committee,  he  would  continue  his  re- 
marks which  were  suspended  by  the  adjournment 
on  Thursday — presuming  that  no  other  member 
desired  to  speak  to  so  thin  a  house.  (No  objection 


229 


being  made,)  Mr.  B.  went  on  to  speak  of  the  res- 
trictions in  the  section  under  consideration. — 
They  were  originally  that  the  Governor  should 
be  a  native,  30  years  of  age,  and  a  resident  in  the 
state  for  five  years.  These  were  substantial  res- 
trictions, and  perhaps  required  particular  con- 
sideration. These  were  the  points  on  which  gen- 
tlemen commented  who  took  ground  for  these 
restrictions.  As  to  this  limitation  of  age,  how  he 
asked,  did  gentlemon  hope  to  enforce  obedience 
to  it. 

Mr.  MORRIS  suggested  that  the  restrictions  as 
to  age  and  nativity  had  been  struck  out. 

Mr.  BASCOM  :— True— but  the  Chair  decided 
that  the  whole  subject  was  open,  and  the  gen- 
tlemen he  proposed  to  answer  took  that  latitude. 

The  CHAIR  replied  that  the  present  occupant 
of  the  chair  dissented  from  that  decision — and 
thought  the  whole  subject  was  not  under  discus- 
sion. The  question  was  on  striking  out  all  that 
remained  of  the  section,  and  inserting  a  clause, 
making  every  qualified  elector  eligible. 

Mr.  BASCOM  said  he  should   say   very 


little 


our  foreign  population  were  from  that  government, 
and  the  doctrine  should  be  met  and  repelled  on 
every  proper  occasion.  The  way  that  question 
was  met  by  the  Convention  of  1821,  seemed  to 
him  just  about  as  extraordinary,  and  as  ill  calcu- 
lated to  effect  the  object,  as  the  mode  of  carrying 
on  hostilities  attributed  to  the  Dutch  by  the  veri- 
table historian  Diedrick  Knickerbocker.  That 
was  to  collect  together  everything  they  had  pur- 
chased and  paid  for,  of  the  nation  with  whom  they 
were  at  war,  and  burn  them  in  one  large  huge 
pile.  This  was  about  as  singular  mode  of  carrying 
on  hostilities  against  the  doctrine  of  expatriation  as 
that  of  our  illustrious  ancestors.  But  Mr.  B.  rose 
mainly  to  enter  his  dissent  to  some  other  posi- 
tions taken  by  the  advocates  of  these  restrictions. 
The  gentleman  from  Columbia  (Mr.  JORDAN) 
had  it  that  we  came  here  with  .restricted  duties. 
This  doctrine  of  restrictions  was  to  be  begun  on 
ourselves.  We  were  to  begin  it  on  ourselves. — 
The  position  was  that  we  were  to  do  what  the 
people  sent  us  here  to  do.  That  would  be  found 
to  be  a  rule  of  difficult  application.  We  should 
find,  when  we  came  to  compare  views  on  this 
question  of  what  we  were  sent  here  to  do,  that 
we  had  little  to  do.  One  might  be  sent  here  to 
effect  one  reform — another,  another.  Mr.  B. 
doubted  whether  we  should  find  that  the  masses 
of  the  people  had  decided  in  favor  of  any  single 
proposition  we  might  debate  here.  Mr.  B. 
knew  there  were  complaints  about  the  judiciary. 
Yet  he  knew  that  the  people  were  far  from  being 
anxious  as  to  the  propriety  of  abolishing  the  pre 
sent  system  and  substituting  another.  There  had 
been  complaints  also  about  State  debt,  and  the 
action  of  the  legislature  on  that  subject — but  he 
doubted  whether  a  majority  of  the  people  had 
so  settled  down  on  the  matter  as  to  require  at 
our  hands  restrictions  on  the  legislature  in  that 
respect.  He  knew  there  were  a  great  many 
subjects  of  local  complaint,  that  it  could  not  be 
insisted  that  a  majority  of  the  people  had  sent 
us  here  to  reform.  Take,  for  instance  the 
question  that  had  agitated  the  counties  in  this 
neighborhood — the  very  question  which  the  gen- 
tleman from  Columbia  would  urge  here  as  call- 
ing for  a  reform — and  would  the  gentleman  says 
that  a  majority  of  the  people  had  sent  us  here 
to  consider  that  question  ?  We  came  here  to 
listen  to  and  consider  the  various  subjects  ihat 
were  matters  of  complaint  in  the  various  loca- 
lities in  the  State,  though  urged  by  a  small  por- 
tion of  the  people  of  the  State,  and  to  decide 
whether  they  were  well  founded,  and  whether 
the  propositions  designed  to  meet  these  com- 
plaints were  intrinsically  just  and  right.  Mr.  B, 
had  supposed  all  would  concede  that  our  duties 
were  general — that  they  required  of  us  a  gen- 
come  out.  And  but  for  the  suggestions  thrown  ]  eral  examination  of  every  section  of  the  constitu- 


about  that  but  a  good  deal  about  something  else. 

Mr.  CAMBRELENG  contended  that  the  sub- 
ject of  a  restriction  of  any  description  involved 
every  other  limitation — and  that  the  whole  sub- 
ject was  open. 

Mr.  BASCOM  expressed  his  obligations  to  the 
gentleman  for  the  suggestion. 

Mr.  RUSSELL  remarked  that  five  or  six  gen- 
tlemen had  discussed  the  whole  subject  on  this 
motion. 

The  CHAIR  would  not  interrupt  the  gentle- 
man, unless  others  did. 

Mr.  BASCOM  went  on  to  insist  that  you  could 
not  enforce  this  qualification  of  age,  if  it  was  left 
in  the  constitution.  Suppose  a  majority  of  the 
people  should  inadvertently  elect  a  governor  who 
was  under  30.  Would  the  majority  relinquish 
their  favorite  man  merely  because  he  should  be 
found  to  be  in  fact  a  little  under  30  ?  If  we  should 
come  to  this,  we  should  find  it  necessary  to  sub- 
mit to  an  infraction  of  the  constitution,  or  anar- 
chy must  ensue.  As  to  the  qualification  of  resi- 
dence, in  the  form  in  which  it  stood  here,  it  was 
objectionable  because  such  residence  was  not  re- 
quired to  be  next  preceding  the  election.  It 
might  occur,  as  it  did  sometimes,  that  a  man  en- 
tirely qualified,  might  have  resided  out  of  the 
state  for  some  time.  Such  a  man  must  under  this 
provision,  perform  six  months'  quarantine,  to  get 
foreign  influences  out  of  him,  before  he  could  be 
a  candidate  for  governor.  We  to  be  sure  had 
abundant  material  for  Executives  at  home — but 
the  man  that  the  people  might  most  desire,  as  best 
qualified,  might  not  be  eligible.  As  to  the  word 
native,  he  regarded  it  as  settled  that  that  must 


out  by  the  gentleman  from  Dutchess  and  Essex 
(Messrs.  TALJ/MA.DGK  and  SIMMONS)  in  regard 
to  the  reasons  why  it  was  left  out  of  the  constitu- 
tion of  1777,  and  inserted  in  that  of  1821,  he 
should  not  have  thought  it  necessary  to  have  said 
a  word  on  the  subject.  If  there  were  any  one 
thing  that  should  induce  us  to  be  firm  in  exclud- 
ing this  word,  it  was  the  doctrine  to  which  allu- 
sion had  been  so  often  made  of  expatriation — the 
doctrine  that  a  natural  born  British  subject  could 
not  throw  off  his  allegiance.  A  large  portion  of 


tion.  If  not,  why  did  we  direct  the  appointment 
of  18  or  20  committees,  giving  them  in  charge 
every  branch  of  the  government  and  every  sec- 
tion of  the  constitution  ?  Were  we  to  be  told 
that  we  were  confined  to  such  a  view  of  the  sub- 
ject as  the  people  had  decided  we  should  go  to 
work  upon  ?  But  the  gentleman  from  Columbia 
would  restrict  us  still  further.  We  were  to 
make  nothing  new,  according  to  his  view  of  the 
subject.  He  represented  us  as  being  here  with 
brushes  and  paint  and  putty  and  tinkering  tools, 


230 


to  stop  up  cracks  and  brush  over  deformities, 
leaving  things  essentially  as  they  are  now. — 
Mr.  B.  came  here  with  no  such  instructions  or 
limitations.  He  had  been  directed  to  stop  at  no 
certain  point,  in  the  way  of  reform,  but  to  go 
forward  in  that  work  in  the  direction  and  to  the 
€ttent  which  should  appear  to  be  necessary  ;  and 
he  should  do  this  with  the  more  fearlessness 
under  the  evident  anxiety  of  certain  gentlemen 
to  arrest  his  course.  The  old  Constitution  had 
caused  dissatisfaction.  And  whilst  some  were 
finding  fault  with  one  section,  and  others  with 
another — that  instrument  «was  held  up  for  our  ve- 
neration !  One  gentleman  wanted  to  sanctify  one 
section  and  another  another — until  we  should 
find  the  whole  instrument  too  sacred  for  our 
touch  !  And  the  idea  that  such  is  written  in  the 
Constitution  of  1821,  seemed  to  be  quite  conclu- 
sive against  any  change.  They  seemed  to  work 
with  the  Constitution  of  1821,  as  the  Mahomedan 
did  with  a  hog,  when  they  had  an  inclination  for 
bacon.  It  was  forbidden  food  with  them,  for  the 
curse  of  the  Prophet  rested  on  the  whole  animal. 
And  yet  one  of  the  faithful  would  sanctify  one  por- 
tion of  the  animal  and  another  another,  as  not  com- 
ing within  the  intention  of  the  Prophet.  '  Surely,' 
said  one,  f  the  good  Prophet  did  not  mean  to  pro- 
scribe the  head,'  and  '  surely  not  the  tail,'  and  so 
on,  until  by  piecemeal  they  absolved  the  whole 
from  the  interdict,  from  one  end  to  the  other. 
We  might  as  well  adjourn  and  go  home,  and  tell 
the  people  that  the  Constitution  is  all  right,  and 
that  their  complaints  are  ill  founded.  Mr.  B. 
wanted  gentlemen  to  go  in  detail  into  the  beau- 
ties of  this  old  Constitution,  when  they  insisted 
that  we  should  not  touch  it.  He  wanted  them 
to  tell  him  whether  it  was  the  judiciary  system 
that  claimed  their  admiration — whether  the  sub- 
stitute which  it  provided  for  the  old  council  of 
appointment,  vas  one  of  those  beauties — for 
which  they  claimed  our  adoration — or  whether 
the  restriction  on  the  elective  franchise  was 
one  of  these  beauties?  Would  these  gentle- 
men tell  him  whether  the  appointing  power  was 
lodged  where  it  should  be  ?  He  invited  them  to 
look  at  the  unjust  impo'sition  of  taxes  provided 
for  in  that  instrument.  One  of  them  was  the 
tax  on  the  consumer  of  an  article  of  neces- 
sity. His  constituents,  when  they  went  to  a  salt 
manufacturer  and  paid  a  shilling  a  bushel  for  the 
article,  must  turn  round  and  pay  the  State  ano- 
ther shilling  for  carrying  it  away.  The  truth 
was,  very  few  of  the  innovations  made  by  the 
Convention  of  1821,  were  satisfactory  to  the  peo- 
ple. Mr.  B.  pointed  to  the  restrictions  placed  by 
the  Convention  of  1821  upon  the  right  of  suf- 
frage— the  qualification  especially  of  having 
done  military  duty  during  the  year  preceding  the 
election— and  he  alluded:  to  the  fact  that  this 
qualification  drove  from  the  polls  some  of  the  re- 
volutionary veterans  who  were  then  too  infirm 
for  military  trainings  or  labor  on  the  highways. — 
This,  he  said,  was  not  the  liberal  extension  of 
the  franchise  which  the  people  expected— and 
through  the  action  of  the  legislature,  they  left 
nothing  of  these  qualifications  save  the  beautiful 
provision  of  that  Convention  which  based  politi- 
cal rights  on  shades  of  complexion.  Again,  act 
ing  on  the  idea  that  the  further  certain  power  was 
removed  from  the  people  the  better,  the  Conven 


tion  of  '21  made  provision  that  every  justice  of 
the  peace  in  the  state  should  be  of  the  same  po* 
litical  caste  with  the  Governor  himself.  That 
provision  also  the  people  abrogated.  As  to  the 
judiciary,  a  very  good  system  administered  by 
able  and  talented  officers,  had  to  give  place,  un- 
der the  edict  of  the  convention  of  1821,  to  a  sys- 
tem not  as  good,  and  to  incumbents  no  better. — 
These  restrictions  on  the  elective  franchise,  and 
others  of  which  the  instrument  was  full,  had 
rested  under  popular  condemnation  almost  from 
the  time  of  its  adoption.  And  Mr.  B.  was  not 
one  of  those  who  with  paint  brush  and  putty 
knives  were  ready  to  stop  up  cracks  and  gloss 
over  deformities.  He  came  here  with  a  disposi- 
tion to  unite  with  others  in  an  honest  attempt  to 
make  a  constitution  founded  on  correct  and  just 
principles.  He  would  have  restrictions  in  it — 
but  they  must  be  restrictions  on  the  delegate  pow- 
ers rather  than  on  the  people  themselves  One 
jreat  object  with  us  should  be  to  secure  a  good 
judiciary  system,  by  which  the  controversies 
which  were  constantly  arising  might  be  settled 
with  convenience,  dispatch,  and  satisfaction  to 
parties.  Another  should  be  to  put  salutary  re- 
strictions on  the  power  of  the  legislature — not. 
however  that  we  could  make  a  bed  or  pillow  on 
which  the  people  could  rest  in  ease  and  security, 
without  watching  their  agents,  but  we  were 
bound  to  secure  the  public,  with  ordinary  vigi- 
lance on  their  part,  against  the  excesses  of  legis- 
lation. We  were  bound  also  to  perfect  a  system 
of  common  school  education,  which  should  chal- 
lenge a  parallel  in  the  world,  and  which 
should  put  at  rest  the  imputation  that  Mo- 
narchies had  better  schools  than  Republics. — 
We  were  bound  also  to  adopt  some  princi- 
ple by  which  our  internal  improvements 
might  be  safely  and  properly  extended,  until 
their  blessing  should  reach,  every  corner  of 
the  State — the  whole  so  managed  that  political 
parasites  should  not  pocket  half  the  benefit  of 
the  system.  If  we  went  forward  and  provided 
such  'securities  as  experience  had  shown  to  be 
necessary  to  sustain  popular  institutions  in  their 
vigor  and  efficiency,  we  should  find  no  need  of 
these  restrictions  on  the  popular  action.  Apply 
them  to  the  Governor,  and  we  must  go  through 
the  list — making  them  applicable  to  all  other  of- 
ficers who  we  may  make  elective.  Better  leave 
the  qualifications  of  their  agents  to  the  direct 
judgment  and  discrimination  of  the  people — and 
proceed  upon  the  assumption  that  they  will  be  as 
capable  of  judging  ten  years  or  more  hence,  of 
the  proper  age  and  qualificatians  of  their  officers, 
as  we  can  be.  Mr.  B.  closed  with  some  remarks 
in  support  of  his  former  declaration,  that  the  doc- 
trine of  expatriation  was  part  of  the  common  law 
of  England,  and  quoted  a  proclamation  of  the 
Prince  Regent  in  1844,  in  which  it  was  asserted 
to  be  such — calling  attention  to  the  inconsistency 
and  impropriety  of  adopting  in  our  Constitution, 
without  reservation,  as  was  done  in  our  former 
constitutions,  the  common  law  of  England. 

Mr.  SIMMONS  desired  permission  to  explain, 
to  prevent  any  misunderstanding.  He  intended 
to  affirm  that  the  subject  of  perpetual  allegiance 
was  the  doctrine  of  the  whole  world  so  far  as  we 
know — though  it  was  growing  weaker  and  weak  - 
er,  and  becoming  obsolete  in  practice,  it  would 


231 


.  in  every  nation.  That  it  was  the  now  ex- 
isting law  of  every  nation  of  Europe,  there  could 
be  no  doubt.  He  found  in  the  code  of  Napoleon  it 
was  laid  down  in  very  strong  terms,  and  we  know 
it  has  always  been  the  doctrine  of  England,  and 
of  the  ancient' world — the  Romans  and  the  Greeks. 
Evry  gcntk'inan  acquainted  with  the  classics 
would  agree  with  him  as  to  the  existence  of  the 
doctrine,  that  no  man  can  put  off  his  country. — 
Now,  however,  there  seemed  to  be  some  difficul- 
ty in  settling  the  question.  The  doctrine  might 
be  permitted  to  stand,  and  yet  they  might  co 
to  take  the  risk  of  electing  their  Governor,  even 
if  he  should  happen  to  be  placed  in  that  condi- 
tion in  which  he  would  owe  an  actual  allegiance 
to  his  adopted  country,  and  an  obsolete  and  anti- 
quated one  to  another.  There  were  two  sides  to 


land  States  a  female  was  competent  to  pass  pro- 
perty at  the  age  of  eighteen.  He  knew  it  was 
so  in  Vermont.  But  in  this  State  we  put  it  at 
twenty-one.  A  very  few  years  ago  a  majority 
of  the  European  nations  required  twenty-five 
to  be  the  period,  which  we  limit  at  twenty- 
one,  of  competency  to  do  certain  acts.  That 
was  the  old  law  of  France  in  Bonaparte's  time  : 
and  now  the  question  is  whether,  inasmur; 
some  period  must  be  fixed  upon  foV  the  perform- 
ance of  political  duties,  we  will  take  the  limits 
fixed  in  other  matters — for  voters  for  instance, — • 
or  raise  the  ages  so  as  to  comport  with  the  eleva- 
ted duties,  more  enlarged  views,  and  sober 
thought,  that  ought  to  be  the  qualifications  of  state 
officers.  It  appeared  to  him  it  would  be  discreet 
to  have  a  little  more  age  attached  to  persons  hold- 


every  question,  and  he  would  put  it  to  gentlemen  •  ing  state  offices,  and  it  seemed  to  be  conceded  on 
if,  in  a  country  like  ours,  where  we  always  go- !  this  floor  that  the  people  would  not  elect  anybody 
vern  by  party  spirit,  we  should  get  into  a  war  !  under  30  years.  If  then,  as  a  general  rule,  it  had 
with  Great  Britain,  and  there  should  be  a  strong  |  been  seen  to  be  fit  and  proper,  it  would  be  no 
party  against  the  war,  and  many  should  remove  j  less  if  the  rule  were  declared  in  the  constitution, 
into  "Canada,  and  there  get  naturalized  and  be  ta-  The  doctrine  of  want  of  power  was  hardly  to  be 
ken  in  arms,  would  there  not  be  many  that  would  endured.  And  here  he  would  take  occasion  to 
like  to  treat  them  as  traitors  to  our  own  country  ?  suggest  to  those  gentlemen  who  were  opposed  to 
Many  men  would  be  unwilling  to  give  up  the  the  limit  of  age,  if  they  were  not  after  all  on  the 
right  in  their  own  behalf.  And  yet  he  thought  it  aristocratic  side  of  the  question.  At  what  period 
ought  not  to  be  put  down,  and  that  the  tendency  ;  do  our  young  men  in  the  country  become  capable 
of  modern  civilization  was  to  put  it  down.  He  of  taking  the  field  as  competitors  for  state  offices  ? 
was  therefore  willing  to  elect  a  naturalized  per- 


son, without  regard  to  that  double   allegiance. — 


It  must  be  remembered  that  most  of  our  distin- 
guished  men  were  self-made — men  who  had  to 


But  one  word  more  as  he  was  up,  in  addition  to  go  to  work  like  Roger  Sherman  and  Col.  Young, 
what  he  had  said  before.  Let  it  be  remembered  j  who  with  lamp  and  book  had  made  themselves 
that  the  question  ot  natural  born  and  naturalized  learned  and  fit  for  any  station.  And  what  age 
citizen  is  disposed  of— that  we  have  not  now  any  was  it  at  which  such  men  were  capable  of  taking 
question  about  that.  The  question  is  now  then  |  the  field  ?  Was  it  till  about  30  ?  But  if  they 


just  as  if  there  was  no  nation  in  existence  but 
one,  an  1  no  citizen  who  was  not  natural 
born  in  it.  The  question  then  is,  what  age 
is  proper  at  which  a  person  shall  be  made  Gov- 
ernor, or  hold  any  other  important  State  office  ? — 
He  would  simply  suggest,  as  he  did  the  other  day 
that  we  do  find  it  important  in  many  things  to  fix 
a  period  regulating  the  age  at  which  a  person  has 
competent  discretion  to  act.  Even  the  amend- 
ment of  the  gentleman  from  St.  Lawrence  (Mr. 
RUSSELL,,)  establishes  an  age  by  implication — the 
age  of  21 ;  and  the  question  is  whether  for  the 
purpose  of  the  great  public  interests  here  involv- 
ed, it  should  be  21,  25,  or  30.  No  gentleman 
would  abolish  21  as  the  age  for  legal  competency. 
The  principle  then  was  given  up,  that  there 
should  be  no  limit  of  age  at  all.  and  the  question 
simply  was  what  in  this  case  that  age  should  be. 
Gentlemen  were  aware  that  ages  have  been  fixed 
upon  by  law  for  different  purposes.  For  the  pur- 
poses of  committing  crime  the  law  says  that  a  per- 
son under  seven  years  of  age  is  incompetent. — 
Between  the  age  of  seven  and  fourteen,  the  law 
presumes  the  person  to  be  incompetent,  but  allows 
competency  to  be  proved.  Between  the  ages  of 
fourteen  and  twenty-one,  the  law  presumes  com- 
petency, but  allows  the  incompetency  to  be 
shown.  And  at  the  age  of  sixteen  the  law  al- 
lows a  person  to  make  the  most  important  con- 
tract which  can  be  made — the  contract  of  mar- 
riage. So  they  found  that  ages  were  fixed  by 
law  for  different  purposes,  according  to  the  dif- 
ference and  importance  of  the  oflice  to  be  per- 
formed He  believed  in  some  of  the  New  Eng- 


opened  the  door — if  they  threw  it  open  wide — 
were  they  not  opening  it  to  the  rich,  and  giving  a 
monopoly  to  those  who  have  been  able  to  pass 
through  college,  get  Dr.  Nott's  diploma,  travel 
through  Europe,  and  come  back  a  De  Witt  Clin- 
ton, or  Governor  Tompkins  No.  3  ?  Now,  he 
wished  it  left  to  our  middle  classes,  as  well  as  to 
the  high.  He  wished  gentlemen  would  think  on 
this  subject,  for  it  would  bear  reflection. 

Mr.  WORDEN  asked  what  the  gentleman  from 
Essex  meant  by  middle  classes  under  our  institu- 
tions ? 

Mr.  SIMMONS  replied  the  great  mass,  that 
work  and  sweat,  and  get  their  living  in  that  way 
— who  plough  and  toil  and  live  on  pork  and  beans, 
as  distinguished  both  from  those  above  and  those 
below  them. 

Mr.  WORDEN  enquired  if  the  gentleman  from 
Essex  put  any  legally  instituted  class  above  them  ? 

Mr.  SIMMONS  said  not  a  legal,-  but  a  self  in- 
stituted class.  He  added  that  this  was  a  subject 
on  which  he  would  not  legislate.  When  a  thea- 
tre takes  fire,  all  cannot  rush  out  at  once ;  and 
the  elevation  of  the  human  family  must  be  ac- 
cording to  God's  nature  :  instead  of  all  scrambling 
for  the  door,  it  must  be  left  free  to  voluntary  ef- 
fort; he  desired  the  door  to  be  left  open  to  the 
sons  of  our  farmers,  instead  of  limiting  it  to  the 
rich  men's  sons,  who  became  travelled  and  learned 
at  an  earlier  period  than  the  poor  and  self-taught 
could  possibly  be.  But  as  to  the  power  of  the 
people  to  regulate  themselves,  he  wished  to 
throw  out  one  remark,  and  then  he  should  have 
done.  He  held  that  the  people  had  no  right  to 


232 


act  but  by  law  ;  any  other  action  was  a  usurpation 
and  a  tyranny.  But  that  was  not  all.  Let  gen- 
tlemen who  had  reflected  deeply  on  this  subject 
take  his  suggestion,  and  he  would  then  ask  them 
whether  they  ever  read  of  a  people  from  the 
commencement  of  the  world  to  this  time,  where 
the  majority  were  not  interested  in  upholding  the 
laws  ?  It  had  been  gravely  argued  on  this  floor 
that  the  majority  ought  to  go  by  law  to  secure  the 
rights  of  the  minority;  but  he  asserted  that  it 
was  to  secure  the  rights  of  the  majority.  Go 
where  law  does  not  prevail,  and  a  minority  rules. 
Minorities  rule  in  proportion  to  where  the  law 
fails.  Go  back  to  the  darkest  ages  that  ever  pre- 
vailedj  and  there  would  be  found  that  one  man 
governed.  Gentlemen  would  find  that  where  law 
and  justice  were  recognized,  majorities  governed. 
It  was  for  majorities  he  wanted  law. 

The  CHAIRMAN  being  about  to  put  the  ques- 
tion on  the  amendment, 

Mr.  STRONG  rose  and  said  there  were  many 
members  absent,  who  perhaps  would  like  to  say 
a  word  upon  this  subject,  and  to  record  their 
votes  also.  To  give  them  an  opportunity  to  do 
so,  he  would  move  that  the  committee  now  rise 
and  report  progress,  and  ask  leave  to  sit  again. 

The  motion  was  carried  on  a  division,  by  a  vote 
of  46  to  22 — and  leave  granted  accordingly. 

Mr.  RUSSELL  then  moved  that  the  Conven- 
tion adjourn,  which  was  carried  by  a  vote  of  52 
to  14. 

And  the  Convention  then  adjourned  till  to- 
morrow morning  at  10  o'clock. 

WEDNESDAY,  (30th  day)  July  8. 

Prayer  by  the  Rev.  Dr.  J.  N.  CAMPBELL. 

Mr.  WHITE  offered  a  resolution  calling  on  the 
Comptroller  to  enquire  into  the  amount  of  travel 
fees,  and  per  diem  allowance  drawn  by  the  mem- 
bers of  the  legislature  during  the  sessions  of  1841, 
'2,  '3,  '4,  and  1845,  and  the  duration  of  the  ses- 
sions. This  was  adopted. 

Mr.  WARE  then  moved  that  the  Convention 
go  at  once  into  committee  of  the  whole,  on  the 

REPORT  RELATIVE  TO  THE  POWERS    AND    DU- 
TIES OF  THE  EXECUTIVE. 

Mr.  CHATFIELD  in  the  Chair. 

Mr.  STRONG  said  it  had  become  very  fashion- 
able of  late,  for  gentlemen  to  make  various  excu- 
ses for  taking  up  the  time  of  the  Convention  in 
debating  this  subject;  particularly  had  he  noticed  fell 
two  or  three  gentlemen  who  had  made  two  or 
three  speeches  each  upon  this  very  subject  here, 
in  committee  of  the  whole,  when  they  were  about 
to  begin  another,  they  would  commence  by  mak- 
ing excuses  for  troubling  the  Convention,  and 
then  go  on  and  make  a  long  speech,  and 
take  up  another  hour.  Now,  for  his  part,  he 
had  no  excuse  to  make.  He  claimed  it  as  his 
right  to  make  a  speech  on  this  or  any  other  sub- 
ject. He  had  been  for  some  days  quite  at  a  loss 
to  know  what  range  or  course  the  debate  on  this 
question  was  to  take ;  and  quite  at  a  loss  to  think 
what  could  be  the  object  of  gentlemen  in  making 
the  speeches  they  had  done.  They  said  that  they 
considered  this  only  a  mere  minor  consideration, 
and  yet  they  evidently  made  it  a  great  test  ques- 
tion, with  regard  to  what  restrictions  were  to  be 
imposed  upon  the  people  by  this  Convention. — 


The  gentleman  from  Chautauque,  (Mr.  PATTER- 
SON) had  said  that  he  was  very  much  at  a  loss  to 
know  how  it  wag  that  he  should  happen  to  differ 
upon  this  subject  of  restrictions  with  his  colleague 
(Mr.  MARVIN)  when  they  represented  the  same 
people.  Now  though  he  said  it  might  be  because  a 
certain  mountain  ridge  divided  their  county,  yet 
he  (Mr.  STRONG)  thought  that  very  probably  the 
reason  was  because  there  was  a  good  deal  of  a 
kind  of  a  squinting  towards  Governor-making  in 
the  matter  [much  laughter]  and  he  took  it  that 
a  good  deal  of  that  debate  had  been  made  more 
for  the  purpose  ol  a  kind  of  Governor-making, 
than  for  any  other.  It  was  more  for  that,  than 
it  was  for  their  love  for  the  "  dear  people,"  that 
they  kept  continually  talking  so  much  about. — 
[Laughter.]  When  he  heard  gentlemen  talking 
so  much  about  the  dear  people  and  their  love  for 
all  of  them,  it  satisfied  him  that  there  was  al- 
ways something  beyond  this.  It  was  like  the 
stump  orators  in  his  part  of  the  country.  They 
were  all  full  of  love  for  the  dear  people,  and  they 
would  talk  long,  and  they  would  talk  loudly,  and 
they  would  talk  eloquently  about  the  dear  peo- 
ple, and  the  dear  people's  rights  and  privi- 
leges. But  it  was  all  done  merely  for  the  pur- 
pose of  securing  their  votes  ;  and  after  they 
had  got  them,  the  people  might  take  care  of 
themselves.  [Laughter.]  The  gentleman  from 
Ontario  (Mr.  WORDEN)  also  differed  with  his 
colleague,  and  probably  it  was  for  the  very  same 
reasons.  [Laughter.]  He  might  think  it  was 
high  time  that  Ontario  had  a  Governor  given  to 
her;  for  he  (Mr.  STRONG)  believed  that  that 
county  never  had  had  a  Governor  as  yet;  he  be- 
lieved she  had  once  had  a  candidate  for  Gover- 
nor [laughter]  but  he  was  not  elected.  [Laugh- 
ter.] And  perhaps  the  gentleman  from  Chau- 
tauque (Mr.  PATTERSON)  might  think  that  it 
was  high  time  they  should  go  a  little  further 
west  to  look  for  their  candidate,  even  as  far  to 
the  west  as  his  own  county  [laughter]  and  he 
might  have  a  kind  of  a  squinting  up  to  this  here 
Governorship,  and  so  thought  it  best  to  begin  in 
time  to  make  a  little  political  capital  on  the 
strength  of  it,  and  that  might  account  for  the 
reason  why  that  gentleman  should  differ  so 
widely  from  his  colleague  on  this  subject  when 
they  represented  the  very  same  sober  thinking 
set  of  people.  [Much  laughter.]  He  had  a  few 
words  to  say  with  regard  to  a  remark  or  two  that 
fell  from  the  gentleman  from  Seneca  (Mr.  BAS- 
COM)  who  begun  his  speech  with  a  long  pream- 
ble that  he  had  rid  all  night,  [laughter]  and  so 
on.  Now  that  gentleman  started  upon  the  doc- 
trine that  the  present  generation  is  a  good  deal 
wiser  than  the  one  that  has  gone  before.  Now, 
he  might  have  gone  on,  and  finished  with  the  bal- 
ance of  the  proverb,  that  "every  generation 
grows  wiser";  and  lie  was  satisfied  that  every 
generation  grows  weaker.  He  did  not  believe 
that  men  formerly  were  not  as  wise  as  they  are 
now.  He  did  not  believe  that  they  had  not  as  wise 
as  good  and  as  great  men  in  the  last  Convention 
as  they  have  got  in  this.  And  that  gentleman 
(Mr.  BASCOM)  next  said  that  if  these  restrictions 
are  retained  and  imposed  upon  the  people,  you 
cannot  enforce  them;  that  they  would  not  be 
obeyed.  Now  what  does  he  mean  to  say  by  this  ? 
Does  he  mean  to  say  that  the  people  are  not  a 


233 


law  abiding  people  ?  Does  he  mean  to  say  that 
the  people  will  not  regard  a  rule  which  they 
es  havr  n<_rreed  to  ?  Does  he  mean  to 
'.  hat  the  people  are  not  ahle  to  say  what  re- 
:ons  or  rules  are  proper  for  their  own  guid- 
ance ?  And  that  whilst  they  set  to  work  and 
make  these  restrictions  for  themselves,  that  after- 
wards, they  will  turn  round  and  violate  them  ? — 
Why  it  is  equal  to  saying  to  the  people  that "  you 
are  not  wise  and  virtuous  enough  to  refrain  from 
violating  your  own  agreement,  deliberately  and 
solemnly  entered  into^among  yourselves."  Now, 
he  (Mr.  STRONG)  believed  much  better  of  the 
people  than  all  this  came  to.  He  believed  that 
they  would  never,  knowingly,  violate  any 
such  agreement  so  made.  And  that  if  these 
proper  restrictions  were  placed  in  the  Consti- 
tution, that  the  people  never  would  violate 
them.  The  gentleman  from  Seneca  (Mr.  BAS- 
OOM)  had  next  attacked  the  Convention  of 
.  as  being  unwise  and  too  restrictive. — 
Now  he  (Mr.  STRONG)  had  always  supposed  that 
every  law  should  be  adopted  to  public  opinion  at 
the  time  it  was  made.  And  he  had  thought  that 
a  law  that  was  very  proper  in  1821,  might  not  be 
a  very  proper  law  now.  What  satisfied  the  peo- 
ple -J  ••••,  might  not  satisfy  them  now. — 
He  (Mr.  S.)  did  not'belieVe  that  the  Convention 
of  1821  was  so  all  unwise  as  the  gentleman  as- 
serted ;  if  the  instrument  they  framed  was  so  nn- 
wise  and  imperfect  and  restrictive,  why  did  the 
people  adopt  it  ?  That  Convention  was  formed 
^and  constituted  like  the  present  one  ;  and  the 
people  sat  in  solemn  and  deliberate  judgment 
upon  its  acts  afterwards,  and  upon  the  article  it 
passed,  and  they  adopted  and  approved  of  that 
article.  Now,  therefore,  the  verdict  of  the  peo- 
ple is  against  the  gentleman.  For  they  consi- 
dered the  Constitution  so  good  a  one,  that  they 
°ndorsed  it,  and  were  willing  to  adopt  it,  and 
agreed  to  abide  the  consequences  of  it,  with  all 
its  provisions  and  restraints.  And  this  is  a  suffi- 
cient answer  to  the  gentleman's  argument.  The 
gentleman  said  besides  that  we  must  restrict  the 
Legislature,  so  as  to  keep  them  in  proper  bounds  ; 
and  that  we  cannot  form  a  Constitution  to  be 
like  a  pillow,  that  we  can  go  to  sleep  upon, 
and  not  care  what  sort  of  officers  are  elected 
to  represent  them.  Now  how  does  this  agree 
with  his  previously  expressed  sentiment,  where 
he  says  that  'the  whole  power  shall  be  thrown 
open,  and  that  there  shall  be  no  restrictions 
upon  the  people  ?  And  he  says  in  the  same 
breath  with  this  that  we  must  make  restrictions, 
and  that  we  must  not  form  a  Constitution  to  be 
like  a  pillow  that  we  can  go  to  sleep  upon  and 
not  care  what  officers  are  to  be  elected  !  How 
does  this  reconcile  ?  In  two  speeches  he  says  he 
will  throw  away  all  restrictions  as  to  the  Gover- 
nor, &c.,  from  around  the  people.  This  doctrine 
he  advocated  here  two  or  three  days  ago,  and  yet 
in  the  same  speech  he  says  that  we  must  restrict 
— we  must  be  careful  who  we  elect.  Now  he 
(Mr.  STRONG)  could  not  make  these  two  recon- 
cile with  any  kind  of  reason  or  common  sense,  or 
come  together  in  any  proper  shape,  at  all.  For 
he  as  well  as  all  must  believe  that  the  Governor 
represented  the  whole  people,  and  acted  for  the 
whole  state,  and  therefore  great  care  and  caution 
ind  restrictions jwe re  necessary  as  to  who  the  peo- 

15 


pie  should  choose.  But  there  was  another  senti- 
ment the  gentleman  had  uttered-;  it  was  this  : — 
"  But  to  pass  all  these  by — to  insist  upon  these 
petty  qualifications  of  Governor — as  to  whether  he 
should  be  a  little  over  or  under  30  years  of  age — 
this  was  not  what  the  people  required.  In  grasp- 
ing after  these  minor  qualifications,  we  should  en- 
danger the  loss  of  the  greater  and  needed  restric- 
tions to  which  he  had  referred."  Here  then,we  see 
that  in  this  very  next  sentence  he  calls  these  re- 
strictions mere  minor  matters ;  and  upon  these  mi- 
nor matters  they  have  been  debating  over  a  week, 
and  yet  he  insists  that  we  should  not  in  consid- 
ering on  these,  lose  sight  of  the  greater  restric- 
tions necessary  to  be  made.  Now,  if  these  are  of 
so  minor  a  character,  why  do  gentleman  day  after 
day  here,  get  up  and  contend  for  them  ?  and  de- 
bate on  them  ?  As  if  it  was  a  great  test  question 
upon  which  is  to  hang  every  thing  that  comes  af- 
terwards ;  all  the  other  restrictions  that  are  to 
follow  ?  The  gentleman  next  took  up  the  amend- 
ments to  the  Constitution  of  1821,  and  insisted 
that  they  were  full  proof  that  the  people  were 
dissatisfied  with  that  Constitution  and  so  they  got 
it  amended  by  the  legislature  as  soon  as  possible, 
and  had  the  odious  restrictions  there  struck  out. 
Now,  it  was  true  that  they  had  part  of  the  res- 
trictions of  the  elective  franchise  struck  out ;  but 
it  must  be  remembered  that  it  was  only  last  fall 
that  the  property  qualification  was  taken  out  of 
the  Constitution.  And  yet  it  was  to  this  that  the 
gentleman  had  referred  as  evidence  that  the  peo- 
ple disliked  the  Constitution  and  had  the  restric- 
tions renewed.  Ah  !  indeed  !  But  the  gentle- 
man has  passed  over  one  very  important  fact. — 
That  the  people  had  the  whole  subject  before 
them.  And  why,  then,  if  they  were  so  dissatisfied 
with  this  Constitution  why  did  they  not  then,  last 
fall  ask  to  have  these  restrictions  as  to  the  age 
&c.,  of  the  Governor,  be  stricken  out,  and  the  five 
years  residence.  Why  did  they  say  naught  about 
this  ?  The  people  sat  in  judgment  upon  this  in- 
strument last  Fall ;  and  yet  they  left  this  in,  be- 
cause they  were  satisfied  with  it ;  for  if  they  had 
not  been,  you  would  have  heard  of  it  from  one 
end  of  the  State  to  the  other.  But  you  have  heard 
no  complaint;  the  people  made  none;  and  this  is 
the  evidence  that  they  are  perfectly  satisfied  with 
it  as  it  stands.  But  there  are  those  who  go  far- 
ther than  the  gentleman  from  Seneca.  The  gen- 
tlemen from  New  York  and  Ontario  go  still  far- 
ther in  this  career  of  popularity  and  courting  of 
the  dear  people.  They  go  the  whole  length,  to 
strike  out  the  whole  section  and  to  leave  it  open 
entirely,  without  even  retaining  the  restriction 
in  the  amendment  proposed  by  the  gentleman 
from  St.  Lawrence.  Now,  what  a  state  of  things 
would  exist  provided  this  was  the  case?  It 
would  allow  a  young  man  of  18,  provided  he  got 
the  votes,  to  be  elected,  and  thus  throw  open  the 
office  of  Governor  to  men  who  had  not  the  right 
to  vote,  as  he  did  not  suppose  that  the  qualifica- 
tion of  an  elector  was  to  be  changed.  Thus  mak- 
ing restrictions  on  the  qualifications  for  an  elector, 
and  throwing  none  at  all  around  the  candidate. — 
Was  this  the  true  Republican  doctrine  ?  Gentle- 
men seemed  to  suppose  that  those  who  were  in 
favor  of  retaining  some  of  the  old  landmarks, 
were  not  strictly  democratic  ;  but  he  asked  if  this 
principle  was  democratic  ?  Why  seek  to  enforce 


234 


it  in  the  one  case  and  not  in  the  other  ?  Why  li 
mit  the  age  of  the  voter,  or  the  age  at  which 
man  .is  entitled  to  transact  business  for  himself 
And  to  carry  out  the  doctrine  still  further,  wh; 
limit  the  number  of  representatives  the  peopl 
shall  be  entitled  to  elect  ?  It  is  as  much  arestric 
tion  in  the  one  case  as  in  the  other.  Why  limit  th 
number  of  sheriffs,  judges  or  any  other  class  of  of 
ficers,  for  certainly  according  to  the  doctrin 
which  the  same  gentlemen  hold,  the  people  can  d 
no  wrong  and  if  they  elect  too  many  or  not  enough 
or  make  any  other  error,  they  are  fully  competen 
to  correct  it  ?  There  was  no  difference  in  th< 
principle,  and  then  if  it  was  more  democratic  t 
carry  it  out  why  not  do  so,  and  place  no  restric 
tion  on  the  people  whatever.  But  it  is  said  tha 
whether  restricted  or  unrestricted  the  peoplt 
would  never  elect  a  man  under  30  years  of  age 
What  good  reason  was  there  then  for  striking  i 
out  ?  He  could  see  none.  It  was  not  sufficien 
to  say  that  it  would  never  happen  because  it  neve: 
had  happened.  Besides  these  restrictions  hac 
been  imposed  upon  the  people  for  the  last  25  vears 
and  they  had  neither  violated  or  complained  o 
thpm.  We  had  an  instance  in  the  history  of  other 
States  that  such  a  thing  might  occur.  The  State 
of  Michigan  had  once  elected  a  young  man  anc 
the  State  of  New  York  might  do  so  also.  Michi- 
gan after  electing  her  young  man  has  to  rue  the 
day  she  ever  did  it.  He  dishonored  the  State  anc 
caused  her  to  refuse  to  pay  her  honest  liabilities 
The  black  veil  of  dishonor  was  thrown  over  that 
broad  State,  and  the  beginning  of  it  was  the  elect- 
ing of  so  young  a  man  for  her  governor,  as  to  be 
incapable  of  taking  care  of  her  interests.  Wei] 
would  it  have  been  for  her  had  she  the  same  re- 
striction as  there  was  in  our  present  Constitution 
— she  might  then  have  been  saved  from  dishonor 
and  disgrace.  These  very  restrictions  were  what 
they  needed  in  Michigan. 

Mr.  DANFORTH  (with  the  gentleman's  per- 
mission) wished  to  ask  him  and  the  Chair  one 
question.  It  was  whether  it  was  necessary  that 
the  ashes  of  the  dead  should  be  disturbed,  "in  or- 
der to  sustain  positions  that  gentlemen  might  oc- 
cupy. He  felt  deeply  on  this  subject,  and  re- 
gretted exceedingly  the  frequent  allusions  that 
had  been  made  to  a  Governor  of  Michigan,  whose 
standing  was  very  high,  and  that  it  had  been 
found  necessary  to  make  any  reference,  particu- 
larly an  invidious  one,  to  one  who  has  long  since 
been  numbered  with  the  dead. 

The  CHAIRMAN  supposed  that  to  be  a  matter 
of  taste  among  gentlemen. 

Mr.  STRONG  said  that  perhaps  he  ought  to  be 
obliged  to  the  gentleman  for  his  moral  lesson, 
although  he  had  sat  still  while  other  gentlemen 
were  doing  the  same  thing,  and  he  had  been  ra- 
ther late  in  offering  it.  He  had  alluded  to  the 
instance  of  the  Governor  of  Michigan  as  an  illus- 
tration, and  not  with  any  view  of  disturbing  the 
ashes  of  the  dead.  The  doctrine  advocated  there, 
that  placing  these  restrictions  in  the  Constitution 
was  placing  restrictions  on  the  people,  in  his 
opinion,  was  not  tenable.  It  was  our  duty  to 
form  a  Constitution  which  was  hereafter  to  go- 
vern the  people,  but  we  had  not  the  power  to 
restrict  them.  And  while  on  this  point,  he 
would  add  a  few  words  in  relation  to  his  views  as 
to  the  powers  of  this  Convention,  in  answer  to 


the  charge  that  those  who  advocated   the  views 
which  he  now  did,  were  urging,  that  its  powers 
were  limited  and  confined.  Now,  as  he  said  once 
before,  he  believed  the  Convention  to  have  power 
to  make   an  entire  new  instrument,  provided   it 
should  think  proper.     That  work  was  then  to  be 
submitted   to   the  people,  and  they  were  to  pass 
upon  it— to  reject  it  if  they  dislike  it,  or  to  ac- 
cept it  if  they  like  it.     If,  then,  there  wa^  any  re- 
striction on  this  section,  ft  would  after  all  be  the 
act  of  the  people,  and  not  of  the  Convention  in 
imposing  it,  and  they  would  birfd  themselves  by 
their  own   will.     Gentlemen  seemed  to  have  the 
idea  that  all  power  in  this  matter  rested  with  the 
Convention,  and  that  the   people  had  nothing  to 
do  with  it.     Again,  as  to  the  supposition  that  no 
case  of  a  young  and  inexperienced  man  being  elect- 
ed Governor   would  ever   occur  if  these  restric- 
tions were  stricken  out,  he  would  suppose  a  case. 
Had  Gen.  Jackson,  directly  after  his  defeat,  when 
he  ran   against  Adams    and   Clay  for  the  Presi- 
dency, came  into  this  State,  and  after  residing, 
here  for  one  year,  had  desired  to  become  Govern- 
or,  did  gentlemen   believe   it  would  have   been 
within  the  power  of  human  beings  to  have  pre- 
vented his  election  ?     Gentlemen  near  him  said 
that  he  would   have   made  a  good  Governor — a 
first  rate  one.    He  would  not  dispute  it,  because  it 
had  never  been  tried,   but  he   would  ask  if  they 
would  like  to  have  a  man  placed  in  the  station  of 
Governor  of  this  State,   who  had  been  raised   in 
the  Southern   States,  who  was  attached  to  their 
institutions,  and  not  acquainted  with  those  of  our 
State,  except  such  as  he  might  derive  from  a  bare 
Due  year's  residence.     Would  he  get  rid  of  the 
attachments   of  his  early   days — of  those   of  his 
childhood,  the  most  lasting  of  all, — within   that 
short  time  ?    He  apprehended  not.     Again,  sup- 
pose that  General  Taylor  should  come   into  our 
State,  and  reside  here  long  enough  to  be  an  elect- 
or, and  one  of  the  parties  should  see  fit  to  nomi- 
nate him,  he  would  ask  if  he  could  be  defeated — 
f  he   would   not  go  in  with  a  rush  ?    The  same 
objections,  however  honest  he   might  be,   would 
apply  to  this  case  as  in  the  former.     He  was  not, 
>y  these  observations,  to  be  understood  as   Presi- 
dent-making, but  he  was  not  sure  but  Gen.  Tay- 
or  would  be  the  next  President.     How  was   it 
vith  the  Roman  Empire,  the  most  ancient  of  the 
Republics,  and  how  did  she  lose   her   republican 
nstitutions.     Was  it  by  adhering  to   these  safe- 
guards, these  restrictions  ?     No,  the  election   of 
ambitious,  hot-headed  young  men  to  the  guidance 
f  the  government,  was  what  caused  the  tumbling, 
lown   of  the   Republican   Institutions   of  Rome, 
and  her  conversion  into  a  monarchy.     If  such   a 
hing  happened   elsewhere,  might  it  not  here. — 
\nd  are  we  to  lose  sight  of  these  precedents,  and 
o  throw  open  this  oflice  to  every  ambitious  young 
man   who   might  choose  to  bid  for  it.     At  what 
age   were  men  the  most  ambitious  ?     Was  it  after 
30,  or  was  it  before  they  arrive  at  that  age.  From 
vhat  little  experience  he  had,  he  should  say  be- 
ore  thirty  years.     He  could  not  speak  for  other 
ounties,but  he  believed  the  young  men  of  Monroe 
vere  much  too  modest  and  toodiffident  to  ever  seek 
o  assume  the  office  of  Governor  until  30.  He  had 
o  apprehensions  of  their  being  dissatisfied  at  the 
etention  of  the  restrictions  in  the  present  Con- 
titution.     And  yet  he  knew  there  were  very  ta- 


235 


•  I  young  men  there  too,  under  the  age  of  30, 
and  he  would  be  loth  to  admit  that  there  were 
not.  Perhaps  ho  had  taken  up  more  of  the  time 
of  the  committee  than  he  ought,  and  he  had  not 
thought  of  saying  any  thing  on  the  question,  for 
he  supposed  that  when  the  debate  commenced  it 
was  only  a  kind  of  flare  up  for  some  kind  of  indi- 
vidual aggrandizement.  He  had  no  idea  that  it 
was  to  be  made  the  test  question,  buthavingbeen 
so  made,  it  became  necessary  for  all  to  place 
themselves  in  the  condition  they  wish  to  stand. 
Tho  gentleman  had  said  that  he  wished  to  place 
members  on  the  record  on  these  votes.  Why,  he 
he  could  tell  the  gentleman  that  he  should  cer- 
tainly do  so — he  had  no  fears  in  so  doing.  If  the 
;man  threw  out  this  with  an  idea  to  fright- 
en members,  the  lay  members  here,  he  will  find 
that  he  has  mistaken  them.  To  whatever  was 
the  will  of  the  majority  on  this  question  he  should 
yield — that  will  in  our  government  ever  must 
rule.  But  before  a  decision  was  had,  he  desired 
the  convention  to  remember  that  it  was  not  pre- 
tended that  the  striking  of  this  restriction  out  was 
such  a  very  important  question.  Then  it  was 
better  to  retain  it — to  leave  well- enough  alone. — 
Mr.  S.  urged  that  the  convention  should  proceed 
to  amend  the  constitution  wherever  it  was  need- 
ed, but  that  it  should  not  tear  it  all  apart  for  the 


purpose  ot  makin 


;  something  new. 


It  should  not 


be  so  ready  to  consider  that  it  was  the  wisest  and 
best  association  of  men  that  ever  assembled.  If 
there  had  been  any  serious  objection  to  the  old 
constitution  in  this  respect,  he  was  of  opinion 
that  we  should  have  heard  of  it.  And  yet  he 
heard  no  one  speak  of  it  yet  except  in  this  Con- 
vention. He  had  been  among  his  own  constitu- 
ents, ana  .imong  those  of  Saratoga  county  recent- 
ly, and  they  universally  disapproved  of  the  pro- 
position to  strike  out  these  restrictions.  These 
considerations  would  induce  him  to  vote  against 
the  proposition.  As  to  striking  out  the  word  na- 
tive, that  was  right  and  proper. 

Mr.  KIRKLAND  said  that  he  certainly  had  in- 
tended to  have  remained  silent  during  the  debate 
upon  the  several  sections  of  this  article  of  the  Con- 
stitution, as  reported  by  the  standing  committee, 
and  he  should  have  persevered  in  that  intention 
but  for  the  course  which  the  debate  had  taken, 
and  the  peculiar  doctrines  which  had  been  ad- 
vanced during  the  discussion.  Positions  had 
been  taken  here,  by  gentlemen  on  this  subject, 
winch  he  (Mr.  K.)  regarded  not  only  as  radically 
erroneous  in  themselves,  but  as  dangerous  in 
their  tendency,  and  subversive  instead  of  preser- 
vative of  the'great  democratic  principle  that  the 
people  were  the  source  of  all  power  in  the  gov 
ernment  of  this  country.  Under  these  circum- 
stances he  could  not  consent  to  give  a  merely 
silent  vote  on  the  question  now  before  the  com- 
mittee ;  for  such  a  vote  might  be  construed  into 
an  acquiescence  in  the  principles  and  doctrines 
advanced  by  gentlemen,  who  have  advocated  the 
motion  to  strike  out  the  section  under  considera 
tion.  These  doctrines  (or  principles,  as  some 
term  them,)  to  which  he  was  alluding,  had  no 
been  casually  or  lightly  advanced  ;  nor  had  the} 
been  confined  to  gentlemen  upon  one  or  the  othe 
ideof  that  line  which,  it  was  supposed,  dividec 


and  ably  argued  by  distinguished  gentlemen  upon 
both  sides  of  this  line ;  a  line  Mr.  Chairman, 
which  has  now  become  so  faint  that  the  keenest 
observer  would  find  it  a  difficult  task  to  discover 
any  traces  of  its  present  existence,  or  any 
vidence  that  it  ever  had  existed.  (Laughter.) 
These  doctrines  have  been  put  forth  also  under 
trong  professions  of  regard  for  the  great,  the  glo- 
ious  principle  upon  which  this  government  is 
minded.  And  the  very  fact  that  these  doctrines 
lave  been  thus  zealously  urged  by  gentlemen  of 
rery  high  standing  here  and  elsewhere,  imposes 
upon  me  the  necessity  of  entering  my  solemn  tho' 
lumble  protest  against  them.  For  I  regard  them 
s  of  a  dangerous  tendency,  and  as  political 
heresies  not  in  accordance  with  the  vital  princi- 
ple of  our  government.  All  these  gentlemen 
n-ofess,  (as  I  doubt  not  they  all  sincerely  enter - 
ain,)  the  highest  veneration  for  the  great  princi- 
ple on  which  this  government  and  every  truly 
ree  government  is  founded,  viz.,  that  the  people 
ire  the  only  true  source  of  sovereignty.  A  prin- 
ciple to  which  I  yield  my  full,  unqualified  assent, 
without  any  mental  or  other  reservation  what- 
ever ;  nay,  more,  sir,  a  principle  which  I  em- 
Drace  with  enthusiasm  and  gratitude  ;  gratitude 
to  the  Great  Giver  of  all  good,  that  He  has  vouch- 
safed to  the  people  of  this  land  institutions  and  a 
government  founded  solely  upon  that  principle, 
and  deriving  their  force  and  power, — aye,  and 
their  very  existence— only  from  the  consent  ot 
those  living  under  them,  and  enjoying  their  bless- 
ings. I  rejoice,  too,  to  know  and  to  feel,  that 
these  institutions  and  this  government  are  suffi- 
ciently broad  and  extensive  to  admit  within  their 
shelter  and  protection  the  oppressed  of  all  lands  • 
and  to  furnish  an  asylum  to  those  who  truly  love 
Liberty,  from  all  quarters  of  the  globe.  And  I 
have  the  ardent  hope  that  they  will  be  as  endur- 
ing, as  their  results  have  been  benign  and  valua- 
ble to  the  people  of  this,  and  of  other  lands 
I  concur  fully  and  cordially  in  the  sublime  and 
noble  sentiment,  which  our  revolutionary  fathers 
proclaimed  to  an  astonished  world,  and  which  we 
find  incorporated  in  the  first  Constitution  of  the 
State  of  New  York,  "that  no  authority  shall,  on  any 
pretence  whatever,  be  exercised  over  the  people  or 
members  ul  tln.s  State,  but sucn  as  shall  he  derived 


them 
tion. 


when  they  first  came 
These     doctrines    ha 


to    that    Conven 
been    advance< 


Horn  and  granted  by  them."  May  this  noble  piinci. 
pie  and  the  guvei  nment  lounded  on  it,  be  perpetual. 
It  is,  sir,  because  I  love  and  cherish  this  principle, 
and  becau.se  I  desire  to  preserve  it  for  ever  unim. 
paired,  and  to  guard  it  with  ceaseless  vigilance, 
ihatl  am  constrained  to  dissent  from  propositions 
which  have  been  so  earnestly  stated  on  this  occa- 
sion by  gh-ntlemen  whose  patriotism  and  devotion 
to  the  cause  ot  free  government  are  unquestioned ; 
and  whose  excess  of  zeal  in  (his  very  cause,  has', 
as  I  apprehended,  led  them  into  this  very  error' 
which  I  deem  it  my  duty  10  expose  and  to  repudi- 
ate. For  these  reasons  I  rose  to  enter  my  pro- 
test—especially as  this  is  the  pioneer  debate  and 
the  principles  established  in  this,  may  be  brought 
up  hereafter  to  guide  the  action  of  this  Conven- 
tion, when  we  come  to  more  important  clauses  of 
the  Constituiion  than  the  one  now  under  consid. 
eration.  Now,  Sir,  the  doctiine  in  whose  abso- 
lute truth,  these  gentlemen  and  myself  fully  con- 
cur, is,  that  the  people  are  the  only  true  and  legi- 
timate source  of  power;  that  in  this  land  they 


236 


are  the  only  "  Sovereign."     Starting,  then,   with 
this  proposition,  let  us  see  what  other  and  farther 
doctrines  are  advanced.     Let  us  tor  a  few  moments 
read  some  of  the  arguments  which  have  been  put 
forth  in  this   matter.     One   honorable   gentleman 
the  gentleman  from  Kings's  (Mr.  MURPHY)  tells 
us  that  "  it  is  incongruous  to  say  that  we  have  en 
tire  confidence  in  the   virtue   and  intelligence,   ol 
the  people,  and  jet  we  will  not  trust  them  to  make 
a  Governor    without  restrictions;  he   considered 
the  doctrine  ot  those  who  would  place  restrictions 
upon  the  people  in  the  choice   of  their  agents  an 
unjust  rebuke,  &c."     Another  member  the    gen- 
tleman from  Chautauque  (Mr,  PATTERSON)  says, 
"the question  now  is,  whether  you  will  trust  the 
people    with    the    duty    ot   selecting  their  own 
Governor,  or    will    you    tie    them    down  ?     The 
simple,     plain     question     before     us,     and     for 
us    to    decide    is,    are    the    people    capable    of 
self  government,  or  are  they  not  ?     The   day   for 
imposing  fetters  and  shackles  upon   the    action  of 
the  people  in  this  country  has   gone   by;  and  he 
wished  gentlemen  who  thus  mistrusted  the  people 
by  saying  that  they  ought  to  be  thus  restricted,  to 
put  themselves  on  the  recoid,  and  vote  according- 
ly." And  another,  the  gentleman  from  New  York 
(Mr.  O'CoNOR)  says,  "  We  are  not  to  restrain  the 
people.     On  the  great  body  of  the  people  in  their 
sovereign  capacity,  we  have  no  right   to  impose, 
restrictions."     Another,  the  gentleman  from   Al- 
bany, (Mr.  HARRIS)  says — "  When  we  attempt  to 
prescribe  to  the  sovereign  power  what   they  shall 
do,  and  what  they  shall  not  do,  we  transcend  our 
powers."     And  the  gentleman  from  Ontario,  (Mr 
WORDEN)  tells  us  "a  deeper  principle  is  involved. 
The  question  is  whether  the  people  were  to  been- 
trusted  with  a  discretion    to    elect  a   man   whom 
they  may  think  best  fitted  for  the  office.     Gentle 
men  do  not  distinguish  between  elemental  and  de- 
legated power.     The  doctrine  of  checks   and  ba 
lances  and  guards  only  applies  to  delegated   pow- 
ers; to  talk  about  its  application  to  the  people  in 
their  sovereign,  elemental  capacity,  was  too  late 
in  the   day."     And   other   honorable  gentlemen, 
members  of  this  body,  have,  as  I  understood  them, 
expressed  similar  sentiments.     Now,  it  is  against 
such  propositions  as  these  that  I  rise   to  enter  my 
protest.     And  sir,  the  first  remark  I  have  to  make 
is  that  many  of  these  gentlemen  seem  entirely  to 
misapprehend    the  position  which  we  occupy  as 
members  of  the   convention.     They   speak  ot  our 
imposing  restrictions ;  of  our  prescribing   to  the 
sovereign  power,  &c. ;  thus  implying  that  we  are 
here  invested  with  power  to  prescribe,  to  dictate, 
to  order,  or  to  direct.     This  is  a  fallacy.     Such, 
sir,  is  in  no  sense  our  position;  we  have  no  such 
mighty    attributes.     We  occupy    a    much   more 
humble    station  j    and    are    here   to    perform    a 
much  more  humble    task.      As   I  deem    it    we 
are  here  now  as  if  we  were  in  an  assembly  of  the 
whole  people;  and  as  if,  in  that  assembly,  we,  as 
part  and  parcel  of  the  people,  should  propose  that 
we,    the     people,    in     our    sovereign    capacity, 
being  now  entirely  unrestrained  and  unrestricted, 
should  impose  upon  ourselves,  in  virtue  of  our 
sovereign  power;  and  as  its  very  highest  and 
sublimest  exercise,  certain  rules,  conditions — re- 
strictions,  if  you    please — which    we.   the  pro. 
posers,  regard  as  promising  advantage  and  benefit 
to  the  whole  people— to   the  "  sovereign."    The 


'sovereign"  takes  the  proposition  into  considera- 
tion, and  rejects  or  adopts  it,  as  it  sees  fil.  We 
have  nothing  to  do  in  the  way  of  presciibing, 
commanding,  or  "  imposing"  anything;  our  duty 
is  performed,  and  our  power  exhausted,  when  we 
have  made  our  suggestions  or  propositions  to  our 
fellows  of  the  "sovereignty"  to  our  brethren  of 
the  great  constituency,  lor  their  and  our  consid- 
eration. And  we  then  return  among  them  to 
mingle  our  votes  with  theits  on  the  great  ques- 
tion of  the  adoption  or  rejection  of  the  measures 
thus  proposed.  We  simply  propose  to  one  an- 
other that  we  will  all  agree  to  bind  ourselves,  by 
our  voluntary  act,  to  a  certain  rule  of  action,  so  as 
to  admit  to  its  greatest  extent,  that  the  people  are 
not  only  the  source  of  all  political  power,  but  also 
of  its  highest  exercise— the  exercise  of  self- re- 
striction. Is  there  any  thing  in  all  this  like  "  im- 
posing," on  our  part,  "  restrictions"  on  the  peo- 
ple ?  Anything  like  "fettering  and  shackling" 
their  action — any  thing  inconsistent  with  the 
freest  action  and  exercise  of  power  by  the  peo- 
ple—the fullest  exercise  of  unlimited  sovereignty 
on  their  part?  If  there  is,  I  have  been  unable  to 
discover  it.  Again,  sir,  the  doctrine  that  the  peo- 
ple cannot  or  should  not  impose  restrictions  upon 
themselves  in  their  fundamental  law  is,  in  my 
judgment,  a  doctrine  alike  erroneous  in  principle, 
and  fraught  with  danger  in  its  consequences,  and 
calculated  to  lead  to  confusion  and  anarchy.  Its  ad- 
vocates, as  it  seems  tome  run,  directly  counter  to 
the  great  principle  that  the  people  are  the  source 
of  power ;  are  the  "  sovereign",  for  they  would 
deny  to  them  the  exercise  of  the  highest  act  of 
sovereignty,  the  act  of  self-restraint  ;  they  are 
unwilling  to  submit  to  them  the  decision  of  the 
question,  whether  they  will  or  will  not  freely  and 
voluntarily  impose  any  restraint  or  restrictions 
upon  themselves,  in  the  use  and  exercise  of  their 
sovereign  power.  The  doctrine  too,  sir,  is  tanta- 
mount, as  it  strikes  me,  to  declaring  that  we  can- 
not or  should  not  have  a  Constitution.  What  is 
a  Constitution  ?  It  is  a  "  system  of  fundamental 
rules,  principles  and  ordinances  for  the  govern- 
ment of  a  State,  made  by  the  sovereign-authority." 
In  this  land  it  is  but  a  mutual  compact  or  agree- 
ment between  the  "members"  of  the  State — be- 
tween the  component  parts  of  the  "  sovereignty" 
— between  one  of  the  people  on  one  side,  and  the 
whole  of  the  people  as  sovereign  on  the  other. — 
It  is  merely  entering  into  an  agreement  of  associ- 
ation, of  social  and  political  union,  and  necessari- 
ly implies  in  the  very  statement  that  certain  rules, 
conditions,  and  restrictions  are  to  be  prescribed 
for  the  good  of  all  ;  and  consequently  that  each 
individual  of  the  collective  sovereignty  gives  up  a 
portion  of  his  sovereignty  for  the  sake  of  all  the 
others,  and  in  consideration  of  all  the  others 
yielding  a  portion  of  theirs  for  his  sake.  The  con- 
sideration, like  the  compact,  is  mutual,  reciprocal. 
Why,  sir,  to  deny  this  power  of  res'riction  ot  self- 
restraint  to  the  people — the  "  soveieign-"  in  this 
land— is  to  deny  to  them  the  power  possessed  by 
the  despotic  tyrant  of  the  Russian  throne.  He, 
too,  is  a  "  sovereign  ;"  but  no  more  a  sovereign  in 
his  land,  than  are  the  people  in  this.  And  yet  he 
believed  thatno  one  would  deny  to  £Aa£  "sovereign" 
the  power,  by  compact  with  his  subjects,  of  im- 
posing resfrictions  upon  himself  in  the  exercise  of 
his  sovereign  authority.  And  what  that  sovereign 


237 


1  .  there,  surely  this  greater  sovereign — the 
people — can  do  here.  The  question  as  to  how  far 
and  to  what  extent  our  "  sovereign"  should  exer- 
cise !his  power  of  self-restraint,  is  another  and  a 
different  question;  but  it  is  a  question  which — on 
every  principle  of  free  government :  which,  in  har- 
mony and  consonance  with  the  great  basis  on 
which  this  government  rests — must  be  left  to  the 
free,  untramrneled,  unshackled  will  of  the  people 
to  determine.  There  is  a  vast  difference — at  least 
ther<  is  in  my  judgment — between  elemental  and 
delegated  power,  as  to  the  amount  of  restriction 
that  should  be  placed  on  each,  under  the  form  of 
government  with  which  we  are  blessed.  The  dele- 
gated should  be  carefully  and  cauiiously  guarded 
and  restricted  ;  whereas  I  can  conceive  of  but 
comparatively  little  restraint  that  should  be  thrown 
around  the  elemental,  deposited  as  it  is  here  in 
the  people  themselves.  Still,  to  say  that  no  re- 
8'riction  can,  or  should  be,  placed  on  this  elemen- 
tal power,  by  the  power  itself,  is  to  utter  a  politi- 
cal heresy,  not  transmitted  to  us  by  the  Fathers  of 
the  Republic,  nor  taught  in  any  school,  where  the 
true  principles  of  Democratic  Government  are 
understood.  This  question,  now  that  the  word 
*«  native"  has  been  properly  stricken  out,  stands 
merely  as  a  mutual  agreement  between  all,  that 
certain  things  are  to  be  done,  and  certain  things 
are  not  to  be  done.  But  if  the  doctrine  that  the 
people  can  agree  to  no  restriction  for  themselves, 
is  maintained,  then  it  certainly  goes  the  entire 
length  of  disclaiming  that  the  people  can  make  a 
Constitution  for  their  own  government.  And  this 
doctrine,  too,  sir,  is  one  which  I  apprehend  will 
oflen  appear  again  in  the  course  of  the  delibera- 
tions of  this  Convention  ;  and  if  I  am  not  greatly 
mistaken,  it  is  one  which  will  "  plague"  its  advo- 
cates most  seriously  ;  for  I  cannot  doubt  before  the 
close  of  our  labors,  each  one  of  us  will  be  found 
urging  the  adoption  of  some  proposition  which 
shall  imply  more  or  less  of  restraint  upon  this 
"  elemeptal  power  "  Indeed  some  of  the  honor- 
able gentlemen  were  unable  to  finish  their  remarks 
without  admitting  away  the  very  principle  for 
which  they  were  contending.  This  was  a  most 
singular  fact  attendant  upon  this  discussion.  For 
by  one  it  was  said  that  there  should  be  a  "  restric- 
tion" on  the  sovereign  as  to  the  election  to  the 
office  of  Governor  of  a  stranger,  not  "  a  member 
of  the  constituency  ;"  another  says,  "  a  five  years' 
residence;"  and  another  declared  himself  very 
well  satisfied  with  the  "restriction"  contem. 
plated  by  the  gentleman  from  St.  Lawrence  (Mr. 
RUSSELL)  which  proposed,  in  substance,  the  res- 
tric'ion  of  a  year's  residence.  And  thus  they 
argue  away  the  very  doctrines  they  have  been 
contending  for.  And  they  thus  also  do  away  with 
the  very  line  which  they  were  at  first  for  drawing 
between  those  who  like  themselves,  as  they  said, 
were  in  favor  of  true  republican  institutions  and 
of  democratic  Government,  and  us,  who  they  said 
were  not  in  favor  of  the  same;  placing  on  one  side 
those  who  were  in  f.,vor  of  the  qualifications,  and 
on  the  other  side  those  who  were  opposed  to  them. 
But  by  admitting  any  restriction;  no  matter  how 
email,  their  whole  doctrine  falls  to  the  ground; 
for  their  grand  dogma  is  that  there  must  and  shall 
be  no  restriction  whatever,  of  any  sort  or  kind; 
and  the  principle  is  as  much  violated  by  the  smal- 
lest, as  by,the  largest  amount  of  restriction.  So  diffi- 


cult is  it  to  maintain  and  consistently  to  carry  thro* 
a  political  doctrine  which  rests  on  error  instead  of 
t»-uth.  I  say  again,  sir,  that  the  propositions 
against  which  I  have  been  contending,  instead  of 
preservative,  are,  in  my  humble  judgment, 
subversive,  of  the  great  principle  on  which  our 
institutions  rest ;  and  I  believe  that  those  who 
"  put  themselves  on  record"  in  favor  of  proposing 
(he  restrictions  of  age  and  residence  contained  in 
the  section  under  consideralion,  need  have  no  fear 
that  they  will  be  condemned,  as  being  politically 
unsound,  or  that  they  will  be  charged  by  their 
constituents  with  ignorance  of  the  true  princi- 
ples of  the  government.  The  question,  then,  be- 
comes one  of  mere  expediency;  and  on  this 
we  may  well  differ  without  any  compro- 
mise of  principle.  The  question  is,  then,  not 
what  the  people  can  do  on  this  subject ;  for,  by 
theii  very  sovereignty,  they  can  do  any  thing;  but 
what  they  shall  do;  in  other  words,  what  is  ex- 
pedient for  them  to  do.  Gentlemen  would  find  it 
very  difficult  and  troublesome  hereafter  to  pre- 
serve the  distinctions  which  they  have  here  at- 
tempted to  lav  down  ;  for  many  things  in  relation 
to  them  will  be  sure  to  arise  hereafter  that  will 
more  or  less  trouble  their  authors  ;  they  will  find 
it  exceedingly  difficult  to  draw  the  line  between 
the  results  to  which  their  arguments  led  them  ; 
for  many  cases  must  come  up  hereafter  that  will 
involve  the  admission  thai  there  must  be  restric- 
tions even  on  the  elemental  power  of  the  people. 
The  elemental  may  require  less  restrictions — it 
wants  very  little;  whilst  the  delegated  power 
wants  much  restriction;  the  difference  is  only  in 
degree.  And  when  gentlemen  come  to  advocate 
restrictions  upon  the  delegated  power  only,  they 
would  be  sure  to  find  that  in  doing  so,  they  were 
at  the  same  time  actually  imposing  restraints  up. 
on  the  elemental  power,  out  of  which  the  dele- 
gated power  grew.  All  will  propose,  doubtless, 
more  or  less  restraint  on  the  elemental  power  of 
the  government ;  and  the  very  fact$  of  submitting 
puch  restrictions  to  the  judgment  of  the  people, 
is  at  once  a  confession  of  the  power  of  the  people 
to  exercise  that  highest  act  of  power — the  act  of 
self  government.  The  vote  on  this  will  not  divide 
us  into  a  democratic  and  anti-democratic  faction 
in  this  body ;  the  question  involves  no  fundamen- 
tal principle  of  democratic  government.  It  is  a 
mere  question  of  expediency,  as  I  said  before  ;  the 
question  that  we  have  to  submit  to  the  people  is 
this  : — "  Is  it  expedient  that  you,  and  I,  and  all 
of  us,  should  be  restricted  in  a  certain  manner, 
or  is  it  not  ?"  That  is  a  question  which  the  peo- 
ple have  the  full  and  the  only  power  to  settle. — 
We  prescribe  no  rule  to  them  ;  they  are  left  free 
as  God  left  them  to  adopt  which  they  please ;  and 
it  is  for  them  to  say  and  pass  upon  these  proposi- 
tions, whether  they  will  restrict  themselves  in 
any  w*ay  or  not.  Now,  in  reference  to  the  five 
year's  residence  proposed  in  this  section,  I  con- 
sider it  practically  as  of  very  small  consequence, 
— for  with  or  without  this  restriction,  I  regard  it 
only  as  among  possible  events  that  the  people  of 
this  State  would  elevate  to  the  gubernatorial  chair 
an  individual  Who  has  been  a  resident  of  the  State 
for  a  less  period  than  five  years.  Still,  on  the 
w  i'iole,  as  one  ofihe  "membeis"of  the  State,  I 
think  it  advisable  to  ask  my  brethren  to  agree 
that  they  will  not  place  over  me  as  Governor,  any 


238 


person  who  has  not  been  of  and  amongst  us  for 
the  space  of  five  years.  And  I,  on  my  part  will 
agree  that  I  will  so  far  yield  mv  portion  of  the 
"sovereignty"  as  to  "restrict"  myself  on  this  point, 
so  as  to  deprive  myself  of  the  power  of  doing  any 
thing  to  place  over  them  such  an  one  for  Gover- 
nor. B"t  after  all,  I  regard  this  qualification  or 
"restriction"  as  of  little  practical  moment,  and  I 
record  my  vote  in  favor  of  it,  more  for  the  pur 
pose  of  furnishing  "record"  evidence  of  my  dissent 
from  doctrines  against  which  I  protest,  than  be- 
cause  I  deem  its  insertion  in  the  Constitution  es- 
sential to  the  the  happiness  or  welfare  of  the 
people.  The  retention  of  it,  however,  is  a 
practical  repudiation  by  these  gentlemen  of 
their  own  doctrines.  As  to  the  remaining  qual- 
ification, or  "restriction" — that  of  thirty  years 
of  age — I  do  not  deem  it  expedient;  and  am  not 
willing  on  my  part  to  give  up  my  portion  of  the 
sovereignty  so  far  as  to  incapacitate  myself  from 
voting  for  a  person  for  the  office  of  governor,  sole- 
ly and  merely  because  he  had  not  attained  the  age 
of  30  years.  So  far  as  I  am  concerned  as  a  "  mem- 
ber" of  the  State,  as  a  component  part  of  the 
sovereign  power,  I  do  not  wish  to  make  this  "  re- 
striction" one  of  the  terms  of  our  mutual  compact 
of  association.  In  plainer  words,  I  do  not  de- 
sire such  a  provision  to  be  inserted  in  the  Consti- 
tution, although  I  fully  admit  the  right  and  the 
power  of  rny  "  fellow  members"  to  insert  the 
same  therein,  and  thus  to  bind  me  if  a  majority 
of  them  shall  deem  it  expedient  to  do  so.  I  am 
opposed  to  the  insertion  of  this  qualification,  be- 
cause I  have  not  the  slightest  apprehension  that 
the  people  of  this  State  would  ever  devolve  the 
powers  and  duties  of  the  Chief  Executive  Mag- 
istrate on  any  one  who  was  incompetent 
by  reason  of  youth,  merely.  I  have  too 
much  confidence  in  the  intelligence  and  in- 
tegrity of  the  people  to  believe  this,  and  no- 
thing is  to  be  feared  from  the  absence  of  such  a 
qualification.  Whereas,  I  am  taught  by  his  ory 
that  there  have  been  instances  of  individuals  un- 
der the  age  of  30,  who  have  been  in  all  respects 
competent  to  the  highest  civil  duties  ;  who  have 
been  entrusted  in  times  of  the  greatest  difficulty 
and  danger  with  the  management  of  the  helm  of 
State  in  the  most  poweiful  nations;  and  who  have 
accomplished  their  momentous  task  with 
consummate  skill  and  unequalled  ability.  Histo- 
ry has  shown  this  to  have  been  the  case;  and 
may  it  not  well  be  supposed  that  in  this  State  in 
the  course  of  events  some  such  men  should  arise; 
capable  of  filling  the  office  of  Governor,  and  exe- 
cuting properly  all  its  powers  and  duties, 
and  yet  be  under  30  years  of  age.  And  should 
such  a  contingency  arise,  I  do  not  wish  to  de 
prive  the  people  and  myself  of  the  power 
to  vote  for  him,  should  such  an  one  be  found  to 
be  more  capable  than  others.  I  would  never  con- 
sent so  to  tie  up  the  hands  of  the  people  that 
they  could  not  make  choice  of  the  man  best  qual- 
ified to  discharge  the  duties  of  the  office.  Besides 
I  know  too  that  among  those  under  the  age  in  ques- 
tion, there  is  quite  as  much  disinterested  love  of 
country,  patriotism,  devotion, zeal,  resolution,  en- 
ergy, freedom  from  selfishness,  as  in  those  of  more 
advanced  periods  of  life,  and  where  we  can  find  ad- 
ded to  these  qualities  maturity  of  judgment,  and 
experience,  there  is  no  reason  for  depriving  our- 


selves of  the  possessor  of  such  qualities,  merely 
for  the  reason  that  his  locks  have  not  been  white- 
ned by  age.  It  is  true  that  such  instances  are 
rare ;  but  still  they  have  occurred  and  they  may  oc- 
cur again.  This  question  has  been  argued  by  some 
honorable  gentlemen  in  the  course  oifthis  debate, 
as  if  the  striking  out  of  this  provision  would  neces- 
sarily place  in  the  Executive  chair  men  of  imma- 
ture years,  whereas  the  real  question  is,  whether 
the  not  having  attained  the  age  of  thirty  years  shall 
alone  and  of  itself  be  a  disqualification,  however 
well  qualified  in  every  other  respect  the  individ- 
ual might  be.  The  insertion  of  this  provision 
may  work  injustice,  it  may  injure  the  State.  Its 
exclusion,  in  my  judgment,  can  never  be  a  cause 
of  harm,  and  I  am  therefore  for  striking  it  out  of 
the  section.  But  again,  have  gentlemen  calcu- 
lated the  great  injustice  that  would  arise  from 
such  a  provision ;  or  how  many  would  be  thus 
excluded  from  filling  this  office  and  enjoying  its 
honors  ?  I  find  by  the  last  census  that  the  numbers 
who  would  thus  be  disqualified  from  partaking  of 
the  confidence  of  their  fellow  citizens  would  be  at 
least  170,000 ;  that  is,  there  is  about  one-third  of 
the  whole  constituency  between  the  ages  of  twenty 
one  and  thirty.  At  least  170,000  would  fall 
under  that  proscription  now,  and  the  number 
would  largely  increase  in  each  succeeding  year. 
One-third  of  the  whole  voting  population  of  the 
State  would  be  thus  partially  disfranchised;  and  I  do 
not  feel  willing  by  my  vote  to  say  that  upwards  of 
170,000  of  ourconstituentsare,  and  that  the  same, 
or  a  greater  number,  shall  forever  continue  to  be, 
as  a  class,  disqualified  for  holding  the  office  itt 
question.  I  see  no  reason  or  necessity  fur  pro- 
nouncing such  a  judgment  of  exclusion  or  disquali- 
fication. I  am  not  prepared  to  say  that  in  this 
largely  increasing  number  there  will  be  no  per- 
sons who  will  ever  be  fit  to  act  as  Governor — nor 
will  I  place  so  many  qualified  electors  out 
of  the  reach  of  this  office ;  for  I  am  fully  per- 
suaded that  the  people  will  never  select  a  Go- 
vernor so  young,  as  to  disgrace  either  the  station 
or  themselves.  Besides,  sir,  I  consider  that  upon 
this  point  we  have  recently  had  a  strong  expres- 
sion of  opinion  from  large  masses  of  the 
constituency.  Our  position  here  is  one  of  great 
importance.  It  is  true  that  a  seat  in  this  conven- 
tion is  not  equal  in  dignity  and  importance  to  the 
position  of  Governor  of  this  State  ;  but  it  is  no  less 
true  that  matters  entrusted  to  us  as  members  of 
this  body,  are  of  high  and  enduring  consequence; 
aud  that  a  single  vote  here  may  aflect  for  weal  or 
woe  the  men  of  this  and  of  coming  generations,  as 
much  or  more  than  any  act  the  Governor  can  do. 
And  yet  with  the  full  knowledge  of  this  important 
fact  before  them,  look  at  what  has  been  done  by 
the  people  !  They  have  of  their  own  accord  placed 
several  men  of  high  intelligence  and  ability  in  this 
body  who  did  not  number  30  years  of  age;  and 
should  not  that  operate  upon  us  as  a  reason  for  not 
retaining  this  qualification  ?  We  find  that  the  city 
and  county  of  New  York  has,  by  a  majority  of  ma- 
ny  thousands,  sent  to  us  here  an  honorable  member 
(Mr.  SHEPARD,)  whose  years  are  several  short  of 
30  One  has  also  been  sent  from  that  county 
which  had  the  honor  to  furnish  us  our  highly  re- 
spected President,  (Chenango,)  and  Ire  has  not 
that  qualification!  The  old  and  honored  county 
of  Ulster  has  done  likewise;  and  Saratoga  coun_ 


239 


ty,  of  glorious  Revolutionary  memory,  has  not 
thought  herself  unworthily  or  unfitly  represen  ed 
here  by  an  honorable  gentleman,  in  that  respect  no 
tKT"r  qualified;  and  last,  though,  in  myjudgrnent, 
not  least,  my  own  county  of  Oneida  has  by  an 
immense  majority  (over  2000)  committed  her  im- 
j>  irtant  interests  upon  this  floor,  in  part,  to  my 
honoiable  colleague,  who  fails  in  no  qualification 
fitly  to  represent  her,  except,  perhaps,  that 
he  has  not  attained  the  age  of  30. 

Mr.  RICHMOND:  Well,  then,  if  all  these 
**  boys"  as  the  gentleman  from  Essex  (Mr.  SIM- 
MONS,) calls  them,  behave  themselves,  I  suppose 
they  can  be  Governors  by  and  by. 

Mr.  KIRKLAND:  That  is  begging  the  ques- 
tion. A  man  under  30,  may  be  as  much  a  man, 
and  as  well  qualified  in  every  respect  a^  any  man 
over  that  age — except  in  maturity  and  experience; 
a^d  that  is  not  always  wanting  in  rr:en  ol  25  or 
27.  As  a  general  rule  there  is  not  as  much  experi- 
ence under  30  as  over  30.  But  we  have  in 
history  mnnv  glorious  instances  of  young  men  un- 
der 30,  of  21,  25  or  27,  (history  is  lull  of  such 
examples,)  who  have  combined  much  maturi- 
ty, wis'lom  and  experience.  And  all  this  only 
goes  to  show  that  we  might  or  we  might  not 
properly  propose  this  restriction  as  we  think  fit. 
The  question  whether  we  will  or  will  not  propose 
anv  of  those  to  the  people  for  them  to  ratify  or  to 
reject  is  a  mere  matter  of  expediency,  the  pro 
position  involving  in  no  degree  a  violation  of  the 
principle  of  republican  government.  And  no 
member  here,  who  shall  vote  for  the  quali- 
fication will  show  himself  ignorant,  or  op 
posed  to  the  principles  of  the  Government 
under  r/hich  he  lives,  and  under  which  he  ex- 
pects to  live.  It  is  a  question  of  mere  expe- 
diency, and  therefore  he  (Mr.  K.)  should  vote 
only  for  the  five  years  residence,  deeming  the 
rest  inexpedient.  In  conclusion,  Mr.  Chairman, 
I  will  only  say  that  the  question  of  these  "restric- 
tions" is  a  question  not  ot  principle,  in  the  sense 
urged  bv  the  honorable  gentlemen,  whose  opin- 
ions I  have  endeavored  to  combat,  bui  of  expedi- 
ency, merely,  and  I  trust  that  no  member  will 
vote  here  from  any  fear  of  losing  political  caste, 
or  that  he  would  be  regarded  by  his  constituents 
as  having  committed  a  great  blunder;  but  solely 
in  reference  to  the  question  whether  the  proposi- 
tions were  fit  and  proper  to  be  proposed  to  the 
people — to  our  fellow  members  ot  the  constituent 
body  for  their  approval  or  rejection.  I  deem  it 
expedient  that  we  sould  have  the  restriction  of 
five  years  residence,  and  as  one  of  the  "members'' 
of  the  community,  1  shall  record  my  vote  in  favor 
of  it. 

Mr.  PERKINS  before  the  vote  was  taken  de- 
sired to  express  the  grounds  on  which  he  should 
vote,  being  as  they  were  somewhat  different  from 
those  he  had  heard  any  member  express  on  the 
floor.  He  apprehended  that  if  these  restrictions 
were  continued  in  the  Constitution,  they  would 
have  little  or  no  practical  effect,  and  it  certainly 
was  scarcely  worth  while  to  retain  provisions  of 
such  a  character,  as  might  possibly  create 
disorganization  in  the  Government.  He  did  not 
suppose  there  was  any  considerable  probability, 
if  they  were  left  out  that  any  man  would  ever  be 
elected  to  the  office  of  Governor  who  was  not  a 
native,  30  years  of  age  and  a  resident  5  years  in 


the  state.  If  there  was  danger  of  that,  and  that 
the  people  might  exercise  their  power  unwisely 
in  these  respects,  they  should  be  equally  guard- 
ed against  it,  that  they  might  not  elect  a  man  who 
could  neither  read  nor  write — or  who  was  an  idiot 
or  insane  person.  But  it  would  be  an  imputation 
on  their  integrity  and  judgment  to  suppose  that 
they  would  ever  elect  such  men.  He  did  not 
suppose  that  there  was  the  remotest  probability 
that  the  people  would  ever  select  a  Governor 
whose  qualifications  were  below  any  thing  we 
might  prescribe  here.  He  did  not  agree  with 
gentlemen  that  it  was  anti-democratic  to  place 
restrictions  on  the  people,  where  they  were 
necessary,  or  where  we  apprehend  there  was 
danger.  The  people  had  sent  us  here  to  form 
a  compact,  by  which,  if  adopted,  they  would  con- 
sent to  be  governed,  and  by  which  the  rights  of 
the  minority  would  be  protected.  The  very  ob- 
ject of  a  Constitution  was  to  lay  down  fundamen- 
tal rules  of  government,  both  for  the  people  and 
their  delegates,  and  all  others  to  whom  they  might 
delegate  power.  The  object  of  restriction  on 
themselves,  was  that  in  times  of  excitement  they 
might  have  a  rule  to  govern  them,  formed  when 
no  excitement  existed,  and  by  which  the  minority 
might  be  protected  from  the  oppression  of  the 
majority.  And  to  all  such  restrictions  the  peo- 
ple had,  in  substance,  given  their  assent  by  voting 
for  a  Convention  and  sending  us  here.  And  when 
any  restriction  on  the  people  was  proposed  here, 
which  he  believed  to  be  practically  useful,  he 
would  have  no  objection  to  voting  for  it.  But  he 
did  not  believe  there  was  any  practical  utility 
in  the  restrictions  proposed  in  the  report. — 
If  any  person  had  ever  succeeded  to  the  gu- 
bernatorial chair,  without  all  these  qualifica- 
tions, it  would  be  from  his  having  first  been 
Lieut.  Governor.  Instances  had  been  alluded  to 
where  the  Governor  had  not  served  out  his  term. 
Tompkms,  Clinton,  and  Van  Buren  did  not. — 
It  may  well  be  supposed  that  persons  may  be 
elected  to  the  office  of  Lieutenant  Governor,  on 
account  of  some  particular  local  or  partisan  influ- 
ence, and  who,  through  the  death,  removal,  or 
resignation  of  the  Governor,  without  having  one 
of  the  qualifications  proposed,  might  accede  to  the 
gubernatorial  chair  That  he  apprehended  was  the 
only  way  in  which  there  was  the  remotest  proba- 
bility that  we  should  ever  have  a  Governor  under 
thirty,  or  one  who  had  not  been  a  resident  for  five 
years.  The  qualifications  for  Lieut.  Governor 
were  not  usually  looked  to  with  the  same  degree 
of  caution  that  those  of  the  Governor  were.  And 
in  the  report  of  the  committee,  there  is  no  objec- 
tion made  to  a  Lieut.  Governor  being  elected 
without  having  a  single  one  of  these  qualifications. 
There  should  certainly  be  a  distinct  declaration 
on  this  point,  for  in  high  party  times,  in  the 
event  of  the  removal  of  a  Governor  from  the 
state,  or  some  other  cause  of  vacancy  in  his  office, 
a  Lieut.  Governor  succeeding  him,  without  the 
qualifications  of  a  Governor,  might  create  distur- 
bance and  high  feeling,  and  result  in  bad  conse- 
quences. He  repeated  that  he  did  not  apprehend 
the  slightest  probability  that  any  man  would  ever 
be  elected  Governor  who  had  not  all  these  quali- 
fications, except  through  his  first  being  Lieut. 
Governor.  But  through  the  voluntary  election  of 
the  people,  by  their  judgment  and  understanding 


240 


he  apprehended  such  a  thing  would  never  occur. 
Therefore,  to  be  consistent  we  must,  if  we  re- 
quired these  qualifications  in  a  Governor,  require 
them  also  of  a  Lieut.  Governor.  We  must  also 
go  further  and  require  the  same  of  all  other  offi- 
cers— of  judges  of  the  supreme  court,  for  instance. 
And  to  incorporate  so  extensive  a  code  of  restric- 
tions in  the  Constitution  might  raise  up  a  feeling 
of  animosity,  and  subject  us  to  the  charge  that 
instead  of  making  a  more  liberal  Constitution, 
we  had  put  on  greater  restrictions  on  the  direct 
action  of  the  people  than  there  were  before,  and 
excite  a  just  prejudice  against  the  whole  instru- 
ment. For  these  reasons  and  these  only,  Mr.  P. 
should  vote  to  strike  out  these  restrictions — and 
not  because  he  had  the  slightest  objection  to  re- 
strictions on  the  action  of  the  people  when  he 
deemed  them  proper,  useful  and  desirable  in  the 
organization  of  the  government. 

Mr.  PENNIMAN  was  sorry  to  be  compelled 
to  obtrude  himself  again  on  the  notice  of  the  con- 
vention, but  the  debate  had  taken  a  very  wide 
range — much  wider  than  he  anticipated.  It  had 
called  out  much  of  the  wisdom  and  talent  of  this 
body.  Positions  that  had  been  taken  by 
our  opponents  had  been  repeatedly  overturn- 
ed, aftd  had  been  re-taken  and  re-stated — and 
he  did  not  know  that  he  should  be  justified  in  the 
course  he  should  deem  proper  to  take.  But  in 
the  absence  of  any  commander  here,  supposing 
that  we  all  stood  on  equal  ground — he  should 
adopt  the  conclusion  of  Admiral  Nelson  on  a  me- 
morable occasion,  that  it  would  not  be  wrong  if 
he  should  lay  himself  along  side  of  any  one  of 
his  opponents.  Though  he  had  been  somewhat 
anticipated  by  the  gentleman  from  Oneida,  (Mr. 
KIRKLAND)  he  should  proceed  to  notice  some  of 
the  positions  of  the  gentleman  from  Ontario,  over 
the  way  (Mr.  WORDEN).  That  gentleman  in  his 
speech  the  other  day,  said  that  "  the  more  mod- 
ern constitutions  contained  no  such  restrictions 
as  this  in  regard  to  five  years  residence,  and  that 
the  day  had  gone  by  when  checks  were  to  be  pla- 
ced on  the  popular  will — that  we  had  abandoned 
the  principle  of  putting  checks  and  guards  upon 
the  popular  will."  Now  he  (Mr.  P.)  proposed  to 
take  some  notice  of  all  these  points,  and  he  would 
first  ask  the  gentleman  what  we  meant.  Was  it 
the  Convention,  or  the  people,  or  the  collective 
wisdom  of  the  nation  as  expressed  in  the  differ- 
ent State  Constitutions?  Now,  he  (Mr.  P.)  had 
looked  at  the  more  modern  constitutions,  those  of 
the  new  States,  and  found  the  reverse  to  be  the 
fact.  And  as  he  should  endeavor  to  show  they 
contained  the  most  stringent  provisions  in  this 
particular  of  those  of  any  in  the  union  ;  but  also 
that  as  circumstances  changed,  many  of  the  states, 
as  if  taught  wisdom  from  experience,  had  increa- 
sed the  qualifications.  The  gentleman  had  said 
when  his  colleague  (Mr.  NICHOLAS)  had  stated 
himself  to  be  a  democrat  of  'US,  that  he  hoped  he 
would  come  up  to  his  standard  and  be  a  democrat 
of  '46.  He  (Mr.  P.)  was  his  man — he  was  a  de- 


mocrat of  1846  as  well  as  1798- 


fully  up 


to  the  democracy  of  both  periods  on  this  ques- 
tion, as  he  would  endeavor  to  show.  He  would 
examine  briefly  the  qualifications  of  other  states, 
commencing  first  with  New  Jersey.  The  old 
constitution  imposed  no  restriction  on  the 
candidate  for  Governor— but  the  new  one  of  1844 


was  a  little  more  stringent,  and  required  30  year* 
of  age,  20  years  citizenship  and  seven  years  resi- 
dence. Louisiana  in  her  constitution  of  1 
required  35  years  of  age,  citizenship  of  the  Uni- 
ted States  and  six  years  residence.  The  new  con- 
stitution of '45  required  35  years  of  age,  15  j 
citizenship,  and  15  years  residence.  Here  was  ;i 
remarkable  instance  of  the  more  stringent  qualifi- 
cations required  by  the  new  above  the  old  consti- 
tution. True,  as  had  been  said,  our  constitution 
of '77  contained  none  of  these,;  anti  the  reason.- 
were  to  be  found  in  the  fact  that  we  had  just 
emerged  from  colonial  vassalage,  and  were  then 
but  recently  British  subjects.  Similar  reason 
influenced  some  of  the  new  States  at  the  West, 
upon  their  first  organization,  but  where  they  had 
formed  new  constitutions  or  amended  old  ones, 
they  had  incorporated  in  them  those  restriction 
or  rendered  them  more  stringent.  Florida  in  183^ 
required  30  years  of  age,  citizenship  and  five  year.- 
residence.  Texas  in  1845,  30  years  of  age,  citi- 
zenship and  three  years  residence.  Missouri  un- 
der the  old  constitution  required  30  years  of  age, 
four  years  citizenship  and  four  years  residence. — 
Under  the  new  one  of  1846,  thirty  years  of  age, 
10  years  citizenship  and  five  years  residence. — 
!<>wa  required  35  years  of  age,  and  two  years  ci- 
tizenship and  residence.  It  had  been  asked  by 
gentlemen,  why  not  carry  this  out,  and  requiiv 
the  same  qualifications  of  the  judiciary  and  othei 
officers.  Mr.  P.  would  go  with  gentlemen  to  ex- 
tend these  restrictions  to  the  Lieutenant  Gover- 
nor, the  judiciary,  and  the  legislature  if  the) 
pleased.  He  had  looked  over  some  of  the  State 
Constitutions,  and  saw  there  was  precedent  for 
this  too.  Vermont  required  a  Senator  to  be  thir- 
ty years  old,  to  be  a  citizen  and  a  resident.  Tex- 
as, 30  years  for  a  Senator,  citizenship  and  three 
years  residence — for  the  house,  21  years  of  age, 
citizenship  and  two  years  residence.  Florida  re- 
quired for  the  Senate  25  years,  and  for  the  House 
21  years  of  age,  citizenship,  and  two  years  resi- 
dence for*  both.  Louisiana  27  years  of  age,  ten 
years  citizenship  and  four  ye^rs.  residence,  forSe- 
nator— for  judges  30  years  of  age,  six  years  resi- 
dence and  five  years  practice  of  law.  The  old 
constitution  required  no  such  qualifications. — 
Missouri  required  30  years  of  age  and  five  years 
residence  for  the  Senate  and  the  judiciary — ten 
years  citizenship  for  the  Senate,  and  citizenship 
for  a  judge.  Now,  it  would  be  seen  that  so  far  a^ 
the  wisdom  of  all  these  States  were  concerned „ 
undoubtedly  founded  on  experience,  they  had 
found  it  expedient  to  engraft  on  their  new  consti- 
tutions all  these  restrictions,  and  the  question 
was  should  we  avail  ourselves  of  the  wisdom  of 
other  States,  or  should  we  reject  it.  But  w» 
were  told  by  the  gentlemen  from  New  York,  Se- 
neca, Ontario  and  Chautauque,  that  the  sovereign 
people  had  no  right  to  restrict  themselves.  And 
yet  every  one  of  these  gentlemen  had  in  the  end 
given  it  up.  The  gentleman  from  New  York  had 
not  expressly  done  this,  yet  such  was  the  result 
of  his  argument. 

Mr.  WORDEN  :     What  have  I  given  up  ? 

Mr.  PENNIMAN  :     The  right  of  the  peeople 
to  restrict  themselves. 

Mr.  PATTERSON  :     1  should  like  to  know  in 
what  particular  I  have  yielded  it  ? 


241 


Mr.  PENNIMAN  :     If  you  will  have  a  little  not  with  any  expectation   of  carrying  a  question 

ice,  F  will  show  you.  which  had  been  already  decided — but  to  explain 

Mr.  PATTKR ^<)N  :     V.  iv  well.  the  views  of  the  committee  in  reporting  it.     He 

Mr. PENNIMAN:  1  havw  not  entire!)  done  \\  ith  believed  the  attachment  to  one's  place  of  nativity 


you  yet.  As  lie  was  saving  (continued  Mr.  P.) 
ed  the  point  the  moment  they  fixed  the 
qualification  of  electors;  for  that  was  a  restric- 
tion. No  hum;.;  ..aid  be  establish- 
ed without  restricting  the  people.  We  are,  by 

e,  when  brought  into  existence,  by  the  fiat 
of  the  Almighty,  free,  equal,  and  independent. 
We  possess  alike  every  right  and  quality,  and 
stand  on  equal  grounds  ;  but  we  could  not  enter 

>ociety  without  surrendering  a  portion  of 
those  natural  rights.  Those  that  were  essential 
to  the  establishment  of  government,  we  yielded  ; 
those  that  were  not,  we  retained.  And  the  very 
moment  we  undertake  to  assume  the  doctrine, 
that  the  people  could  not  restrict  themselves, 
that  moment  we  aim  a  fatal  stab  at  the  establish- 
ment of  all  human  governments.  And  yet  the 
gentleman  from  Ontario,  who  held  that  the  peo- 
ple had  no  right  to  restrict  themselves,  was  willing 
to  require  a  five  years'  residence — leaving  out  the 
word  native,  and  all  the  other  qualifications  !  It 
did  appear  to  him  that  if  the  principle  was  pen- 
cilled athwart  the  arch  of  Heaven,  in  letters  of 
living  light — that  the  people  had  a  right  to  restrict 
themselves — that  gentlemen  would  not  give  up.' 
There  was  a  point  which,  when  men  determined 
they  would  not  be  convinced,  you  could  not  con- 
vince them.  He  would  tell  those  gentlemen  one 
thing,  and  he  had  not  intended  to  allude  to  it 
again — that  this  eternal  cry  of  "  you  distrust  the 
people" — "  we  have  confidence  in  the  people" — 

;ur  the  only  friends  of  the  people" — and 
this  chulltnging  of  them  to  put  their  names  on 
record,  had- not  been  a  legal  tender  with  the  elec- 
tors of  Orleans  for  many  years  since.  The  day 
had  gone  by  when  this  eternal  praise  of  the  peo- 
ple was  current  coin  with  the  farmers  and  mecha- 
nics of  that  county.  Indeed,  they  distrusted  the 
man  who  indulged  in  it.  It  would  not  be  receiv- 
ed there  even  to  pay  old  debts  of  broken  down 
politicians.  But  in  some  counties  it  seemed  to 
be  not  only  a  legal  tender  but  the  only  capital 
and  stock  in  trade  with  certain  gentlemen.  The 
gentleman  from  Seneca  (Mr.  BASCOM)  and  others 
were  lawyers,  and  could  better  decide  than  Mr. 
P.  what  a  legal  tender  was.  But  that  gentleman, 
though  a  lawyer,  seemed  to  operate  as  a  farmer 
would,  in  assailing  provisions  of  the  old  constitu- 
tion which  he  could  not  successfully  attack.  He 
would  illustrate.  We  farmers,  in  chopping  down 
wood,  when  we  found  a  large,  fine  tree,  so  straight 
that  we  could  not  tell  which  way  it  would  fall, 
in  order  to  make  it  fall  in  the  direction  which 
we  wished,  always  looked  out  for  a  driver.  So 
with  the  gentleman,  when  he  found  a  proposi- 
tion he  could  not  overthrow,  he  was  going  to 
drive  it  over.  The  gentleman  could  find  no  oth- 
er resource  than  a  whole  phalanx  of  revolution- 
ary soldiers,  and  these  he  put  in-  requisition  to 
prostrate  the  qualification  of  a  five  years'  resi- 
dence. How  he  had  succeeded,  remained  to  be 
Mr.  P.  said  he  had  designed  when  he  rose 
to  have  taken  a  nrore  extensive  view  of  the  posi- 
tions of  dilieretit  gentlemen,  but  he  did  not  think 
it  necessary  to  do  it  at  this  late  hour.  In  regard 


and  residence  and  friends,  was  one  of  the  strong- 
est passions  and  best  feelings  of  the  human  heart. 
He  was  born  in  New  Hampshire,  and  he  did  not 
believe  it  to  be  in  his  power  ever  toforgether 
granite  hills  or  the  associates  and  friends  of  his 
youth.  No,  while  memory  retained  her  empire, 
he  would  never  forget  them.  We  had  been  told 
that  foreigners  have  ever  been  most  ready  to  wield 
not  only  the  pen  but  the  $word  in  defence  of  their 
adopted  country.  This  was  true,  as  was  instanced 
in  the  Revolutionary  struggle.  The  Pennsylvania 
line,  one  of  the  bravest  of  the  army,  was  composed 
almost  entirely  of  Irishmen.  And  so  with  the 
Irishmen  who  had  fought  in  France  and  in  other 
countries — they  were  always  faithful  and  devoted 
to  their  adopted  country.  It  was  the  Irish  brigade 
that  maintained  the  honor  of  the  French  arms, 
and  indeed  saved  France,  at  the  battle  of  Fonte- 
noy.  So  with  the  Dutch — they  stand  as  high. — 
Those  who  knew  him,  knew  that  he  had  no  pre- 
judice against  foreigners.  This  was  well  un- 
derstood in  his  own  county,  where  he  received 
a  very  libertl  support  from  them.  With  regard 
to  the  striking  out  of  the  native  qualification, 
therefore,  he  would  not  revive  that  question 
again — it  had  been  decided.  And  so  far  from 
being  opposed  to  foreigners,  he  had  been  ex- 
tensively supported  at  home  because  he  al- 
ways had  a  warm  heart  and  a  ready  hand  to 
relieve  or  succor  the  foreigner  when  necessary  ; 
and  those  who  knew  him  would  bear  him  out  in 
the  truth  of  this  ;  he  cared  not  what  countiy  a 
good  man  came  from  ;  and  therefore,  as  to  the  word 
"Native,"  he  did  not  object  to  have  that  striken 
stricken  out.  It  was,  what  was  considered 
by  some,  an  odious  qualification,  and  he  did 
not  want  to  revive  it.  But  he  wished  to  se- 
cure all  that  could  be  obtained  under  this 
clause — or  rule — by  retaining  the  qualifications 
of  age  and  residence.  We  had  been  told  not  to 
distrust  the  people  ;  that  we  ought  not  to  do  so ; 
that  they  would  always  do  right,  and  so  on. — 
Now  he  was  the  last  man  on  earth  to  distrust 
the  people  unnecessarily.  He  did  not  deny 
that  they  were  capable  of  choosing  and  act- 
tng  for  themselves.  He  also  believed  that  in 
999  cases  out  of  1000  the  people  would  not 
act  wrong  where  they  fully  and  properly- 
understood  the  subject  they  had  to  act  upon  and 
had  time  to  look  into  it,  and  to  reflect  upon  it. 
But  he  was  convinced  that  in  times  of  great  polit- 
ical excitement  the  people  were  apt  to  do  wrong ; 
to  be  led  away  by  designing  leaders  ;  else  how 
had  certain  things  -  occurred  during  the  last  few 
years  in  various  parts  of  the  country  ?  They  had 
heard  of  the  doings  of  lynch  law — they  had  heard 
of  mobocracy — they  had  heard  of  rowdyism — of 
church  burnings,  and  many  other  occurrences 
deeply  to  be  regretted,  where  in  times  of  great 
excitement  there  was  an  utter  disregard  of  all 
law.  Mr.  Van  Buren  in  the  Convention  of  1821 
said  that  there  always  was  and  always  would  be 
danger  to  be  apprehended  from  our  large  cities ; 
Mr.  Jefferson  in  his  day  solemnly  declared  that 
this  country  and  its  institutions  had  very  much  of 


to  this  Native  question,  he  had  a  word   to  say —  danger  to  apprehend  from  our  large  cities.     And, 


242 


the  day  is  not  far  distant  when  our  large  cities, 
and  large  towns  and  large  villages  will  carry  more 
sway  with  them  than  all  the  rest  of  the  country  put 
together.  And  the  masses  in  these  large  cities  are 
very  easily  excited,  and  sometimes,  too,  upon  tri- 
fling topics,  and  this  excitement  leads  to  very  sad 
excesses.  And  at  such  times  the  mass  of  the  people 
is  not  capable  of  exercising  its  legitimate  power 
with  due  discretion.  And  at  these  times  it  is  that 
the  people  do  wrong.  The  people  are  sensible 
of  this  tendency  themselves,  and  therefore  desire 
to  have  these  restrictions  placed  upon  them 
selves ;  and  particularly  aware  of  the  fact  is  the 
agricultural  portion  of  the  State.  He  was  not 
going  to  pass  any  opinion  on  the  "  patriot  war ;" 
but  at  the  time  of  the  burning  of  the  Caroline 
this  feeling  and  this  danger  was  seen  to  an  alarm- 
ing extent.  In  Orleans  and  Niagara  counties, 
and  others  close  by,  had  the  people  been  gathered 
together,  three-fourths  of  them  would  have  de- 
clared war  against  Great  Britain  in  a  moment. — 
They  poured  out  by  thousands  on  Navy  Island;  and 
it  was  more  than  a  man's  reputation  was  worth  for 
any  one  to  say  that  the  feeling  and  conduct  thus 
displayed  was  at  all  wrong.  And  yet  one  year  had 
hardly  passed  away  before  they  felt  thoroughly 
ashamed  of  it.  He  was  not,  and  would  not  ex- 
press an  opinion  on  these  Canadian  troubles— but 
t  hese  were  the  facts.  And  such  instances  ought  to 
convince  us  of  the  danger  of  doing  away  with  all 
these  restrictions;  for  they  are  invaluable  as 
checks  and  guards  against  excesses  in  times  of 
great  excitement.  Perhaps  he  might  be  unne- 
cessarily alarmed ;  he  might  be  the  only  one  to 
anticipate  danger  from  absence  of  restrictions ; 
(he  did  not  think  he  was)  but  let  the  opposite 
doctrine  prevail,  that  no  restrictions  should 
be  imposed  upon  the  people — on  the  popu- 
lar will  in  any  part  of  the  Constitution — 
and  let  the  plan  be  adopted  of  doing  nothing 
but  sing  hozannas  to  the  people — to  the  dear  peo- 
ple—and my  word  upon  it,  that  the  child  is  born 
whose  head  shall  not  blossom  for  the  grave  before 
the  sun  of  our  liberties  shall  have  gone  down  and 
set  in  a  sea  of  blood,  and  our  institutions  be 
shrouded  in  one  eternal  might  of  anarchy  and 
darkness.  The  gentleman  from  Chautauque  had 
talked  much  about  those  members,  who  distrust- 
ed the  intelligence  of  the  people,  putting  them- 
selves on  the  record.  Now  he  had  no  fears  about 
doing  this — this  had  no  terrors  for  him.  If  he 
possessed  any  standing  character  or  influence  in 
his  county,  it  was  because,  under  all  circumstan- 
ces, he  had  always  told  the  people  what  he  be- 
lieved to  be  true.  He  had  always  been  thus  frank 
and  honest  with  them — both  before  and  after  an 
election.  And  he  could  also  tell  the  gentleman 
that  the  people  of  his  county  were  always  grateful 
and  thankful  to  those  who  told  them  the  truth  ;  if 
they  esteemed  any  man  their  friend,  it  was  one 
who  told  them  of  their  errors — and  they  were 
equally  candid  to  tell  their  representatives  of 
theirs.  And  they  would  pass  at  one  of  their 
meetings,  such  a  resolution  as  this  :  "  Resolved 
— that  we  esteem  that  man  our  best  friend  who 
candidly  advises  us  of  our  errors."  This 
had  been  his  course  for  25  years;  and  he  was  not 
only  desirous  to  put  his  name  on  the  record  upon 
this  question,  but  he  would  to  God  that  every 
feeling  of  his  heart — every  motive  that  actuated 


him  in  his  course  could  be  put  on  record  also, 
and  go  with  that  vote  to  his  constituents.  His 
constituents  knew  him  as  making  no  pretensions 
to  learning — to  high  attainments,  or  to  speaking 
talent;  they  knew  him  as  a  plain  unlettered  far- 
mer; and  they  knew  him  also,  (he  would  say  it 
without  intending  any  unkindness  to  the  gen- 
tleman from  Chautauque,  Mr.  PATTERSON)  as 
possessing  some  firmness  of  character,  and  as 
having  the  moral  courage  to  do  his  entire  duty 
to  them  and  to  the  State — both  here  and  else- 
where. And  acting  under  a  deep  and  a  full 
sense  of  his  duties  here  and  responsibility  to 
them — to  his  country — and  to  that  God  who 
spoke  him  into  being,  he  would  thank  any  gentle- 
man in  that  Convention,  on  all  occasions  to  have 
the  ayes  and  noes  recorded;  that  his  name  might 
appear  on  the  record,  and  on  the  adamantine  ta- 
bles of  history  go  down  to  posterity. 

Mr,  BRUNDAGE  said  that  he  felt  great  reluc- 
tance in  breaking  through  the  silence  he  had  im- 
posed on  himself  when  he  first  came  to  the  Con- 
vention. And  when  he  was  elected  to  this  body 
he  formed  the  determination  to  be  passive,  and 
for  the  reason  that  he  was  taken  from  the  plow 
handle,  without  education  or  experience,  and 
was  placed  among  gentlemen  most  eminent  for 
their  talent,  and  learning,  and  ability.  In  such 
an  assemblage  he  had  thought  it  impossible  to 
make  a  conspicuous  figure,  for  the  reasons  he 
had  given;  but  in  addition  he  had  an  infirmity  of 
ear,  the  extent  of  which  he  had  never  experi- 
enced so  much  before,  which  confirmed  the  wis- 
dom of  his  determination.  But  it  struck  him 
they  were  taking  an  imprudent  course.  They 
had  exhausted  seven  days,  if  his  memory  served 
him,  on  a  subject  which  should  have  occupied 
less  than  that  number  of  hours,  for 'it  would  re- 
sult in  no  serious  consequences  which  ever  way 
it  was  decided.  Their  constituents  had  placed 
them  there  to  discharge  one  of  the  most  sacred 
duties  ever  confided  to  any  body  of  men  ;  they 
were  placed  there  as  had  been  expressed  by 
somebody,  he  thought  the  chairman  of  the  com- 
mittee himself  (Mr.  CHATFIELD,)  on  the  ele- 
ments of  society;  and  the  duty  assigned  to  them 
was  to  organize  those  elements  and  reduce  them 
to  system — to  define  and  clearly  designate  the 
rights  of  the  people,  amongst  whom  they  were 
included  individually — and  to  set  prescribed 
bounds  to  delegated  power  hereafter,  that  the  ser- 
vant may  not  become  greater  than  the  master. — 
If  he  mistook  not  they  were  wasting  the  time 
which  might  be  devoted  to  a  better  purpose. — 
There  had  been  a  great  desire  expressed  by  some 
gentlemen  to  restrict  the  people  lest  in  some  un- 
guarded moment,  and  under  the  influence  of  some 
excitement,  they  might  make  an  injudicious  se- 
lection of  an  officer  to  preside  over  the  destinies 
of  the  Empire  State.  One  gentleman,  he  believ- 
ed it  was  the  gentleman  from  Essex  had  feared 
that  they  might  be  led  to  elect  an  inexperienced 
youth  or  "  raw  boy"  as  he  expressed  it.  Fears 
were  also  entertained  that  a  "  raw  import"  might 
be  taken  without  an  acquaintance  with  our  insti- 
tutions or  our  language — that  under  such  influen- 
ces, with  the  wide  range  that  was  proposed  to  be 
given  them,  they  might  cross  the  broad  waters  ol 
the  Atlantic  and  select  Queen  Victoria,  Louis 
Phillipe,  or  Daniel  O'Connell.  He  could  not  but 


243 


think  all  such  fears  were  visionary,  and  baseless 
as  a  vision.  He  had  more  confidence  in  the  com- 
mon sense  of  the  people  than  to  anticipate  danger 
from  such  sources.  It  struck  him  these  fears 
pointed  to  a  contingency  that  could  occur  only  by 
a  bare  possibility,  of  which  there  was  not.  the 
least  rational  ground  of  probability, — and  which 
could  only  arise  when  degeneracy  and  corruption 
have  rendered  us  incapable  of  self-government. 
And  when  anarchy  shall  have  usurped  the  place 
of  reason  and  common  sense,  and  so  subverted  all 
order,  and  destroyed  our  institutions,  as  to  render 
us  fit  subjects  for  despotism,  it  will  be  immaterial 
whether  the  Executive  chair  shall  be  filled  by 
native-born  or  foreigner,  by  the  British  Queen, 
the  French  King,or  an  Irish  repealer.  For  himself, 
if  he  should  be  unfortunate  enough  to  live  at  such 
a  period,  it  would  be  immaterial  whether  the  iron 
were  placed  on  his  neck  by  the  jewelled  hand  of  a 
millinery  Queen  or  the  stern  command  of  a  despot. 
But  such  a  state  of  things  was  not  to  be  expected, 
and  hence  they  might  dispense  with  this  subject. 
Their  constituents  were  looking  at  them,  and  they 
saw  that  this  Convention  had  spent  five  weeks  in 
session  and  have  hardly  got  across  the  threshhold. 
He  hoped  they  would  now  take  the  question,  for 
it  would  be  much  better  to  spend  their  time  in 
devising  sume  liberal  system  of  free  schools  for 
the  education  of  every  child  in  the  state;  for 
when  they  should  have  enlightened  the  people 
there  would  be  no  danger  of  the  evils  to  which 
gentlemen  had  alluded. 

Mr.   VAN  SCHOONHOVEN   was  as   anxious 


when  he  said  so — he  merely  spoke  what  he  knew 
and  felt.  His  second  reason  for  thus  voting  was 
that  occasions  may  arise,  and  that  within  a  very 
short  period,  when  the  people  of  this  State  may 
feel  themselves  imperatively  called  upon  in  some 
great  emergency  to  select  a  gentleman  to  be  placed 
in  the  Executive  chair  of  the  State,  who  may  not 
quite  have  arrived  at  the  required  age  of  30  years. 
It  had  indeed  but  comparatively  recently  happen- 
ed that  a  gentleman  was  selected  and  run  as  a 
candidate  for  Governor  who  was  but  a  very  little 


as  any  gentleman  to  have  the  vote  taken  upon  this 
question  at  once;  but  owing  to  the  remarks  which 
had  been  made  here  by  certain  gentlemen,  he 
could  not  consent  to  record  his  vote  without  stat- 
ing the  reasons  that  influenced  him.  His  princi- 
ples and  character  were  involved  in  this  matter. 
One  charge  had  been  made  there  that  they  in- 
tended to  pull  down  and  destroy  the  Constitution, 
and  to  scatter  its  fragments  to  the  four  winds  of 
Heaven.  Others  had  suggested  that  the  people 
were  disposed  on  many  occasions  to  be  governed 
by  a  mobocracy — and  allusion  had  been  made 
there  to  demagogues  who  desired  to  control  the 
people ;  and  certain  gentlemen  who  have  been 
termed  ultras,  have  been  thus  stigmatized  and 
charged  with  a  desire  to  lend  a  helping  hand  in 
this  destruction  ;  and  that  this  same  class — those 
occupying  the  position  that  he  did,  were  catering 
for  such  a  state  of  popular  feeling  to  catch  the 
popular  ear,  and  to  cater  for  what  is  termed  the 
"  dear  people."  [A  laugh.]  Now  under  these 
remarks,  and  with  his  feelings  he  could  not  re- 
frain from  stating  the  grounds  upon  which  he 
should  record  his  vote.  And  the  principal  rea- 
son why  he  should  vote  against  these  restrictions 
was  that  he  held  to  the  soundness  of  the  doctrine 
that  the  people  of  this  State  were  competent  in 
all  tlh  sc  matters  to  judge  and  act  for  themselves 
He  believed  that  the  people  were  competent,  hon- 
est and  wise  enough,  to  select,  (when  they  sent  a 
delegation  to  Syracuse  or  any  other  place  for  no- 
mination of  State  officers,)  to  send  proper  men — 
competent  in  every  way  as  to  qualification,  age, 
or  any  other  matters.  He  was  willing  to  trust 
them,  at  all  events.  He  had  unlimited  confidence 
in  the  intelligence  and  integrity  of  the  people  to 
do  this ;  and  he  paid  them  no  empty  compliment 


over  30  years  of  age. 

Mr.  WORDEN :     Gov.  Tompkins  was  under  30 
years  of  age. 

Mr.  VAN  SCHOONHOVEN :  Yes ;  but  I  was 
speaking  of  events   of  more  recent  occurrence  ; 
when  the  people  in   their  sovereign  capacity  saw- 
fit  to  place  a  young  man   in  the  Gubernatorial 
chair ;  and    if   the  people  should  now  say  it  was 
their  pleasure  to  place  a  young  man  in  that  chair 
under  thirty  years  of  age,  who  shall  say  that  they 
shall  not  do  so.     Arid  there  was  no   time  during 
the  last  ten  years  that  there  had  been  such  a  state 
of  popular  excitement  that  they  are  not  willing 
to  trust  the  people   in   this   matter;  and  no  man 
has  dared  to   hold  that   doctrine   for  the   last  ten 
years.     No  man  would  now   take  that  ground  ; 
and  if  it  was  to  be  taken  and  sustained  here,  in 
less  than  one  month  the  people  would  hurl  back 
upon  them  these  restrictions  with  indignation. — 
ft  is  true,  as  has  been  suggested  that  an  occasion, 
such  as  he  had  stated,  may  not  occur  for  a  centu- 
ry to  come,  when  the   people  may  desire  to  use 
such  a  right  as  that  of  selecting  a  candidate  under 
thirty  years  of  age ;  but  is  that  a  reason  why  we 
should  here  attempt  to  tie  them  down — to  declare 
that  they   shall  not   exercise  that  right,   even  if 
they  desire  it.     But  what  are  we  doing  ?  •  Framing 
an  instrument,   as   perfect  as  we   can,   which  is 
hereafter  to    be  ratified  by  the  people.     Then 
as  we  are  preparing  such  an  instrument,   which 
is  to  endure  for  a  long  time,  why  should  we  not 
make  it  as  perfect  as  possible  before  we  submit  it 
to  the  people  ?     Let  us  not  forget  that  we  are  only 
preparing  an  article  for  the  people  to   execute. — 
They  are  to  sanction  it  if  they  like  it,  and  to  re- 
ject it  if  they  do  not  like   it;  and  in   framing  it 
we  ought  to  make  it  as   perfect   as   possible.     If 
the  principle  is  wrong,  vote  against  putting  it  in- 
to the  Constitution.     But  the  doctrine  that  this 
Convention  is  intended  to  restrict  the  people  can- 
not be  true ;  because  the  people  are  to  decide  up- 
on adopting  or  rejecting  the  result  of  its   action  ; 
they  have  not  decided  beforehand  upon  this,   and 
therefore  it  is  their  duty  to  place  the  article  be- 
fore them  in  as  perfect  a  state  as  they  could  pre- 
sent it.     Now,  those  who  say  that  there   may   be 
cases  arise,  where  it  may  be  proper  for  the  peo- 
ple to  take  a  candidate  for   Governor   who  shall 
be  under  30  years  of  age,  completely  yield  all  their 
objections.     For  if  it  be  proper  that   the   people 
should  do  this  in  a'single  instance,  then  it  is  prop- 
er in  all  cases;  and  they  should  not  be  shut  out  from 


the 
For  it 


privilege  of  exercising  this  power  at  all 
it  may  be,  in  the  course  of  events,  thai 


times, 
that  some 


great  and  distinguished  man  may  stand  out  so 
prominently  from  among  his  fellow  citizens,  as  to 
work  him  into  the  estimation  of  all  parties  and 
classes,  as  the  only  proper  person  to  be  their  can- 
didate for  Governor ;  and  would  you  shut  out 


244 


such  an  one  by  the  retention  of  a  restriction  like 
this  ?  For  if  he  was  under  30,  however  great  he 
might  be,  this  restriction  would  exclude  him. — 
And  if  it  is  impolitic  once  to  do  this,  it  is  impo- 
litic always.  Again,  it  had  been  urged  here  that 
some  members  advocated  the  doctrine  that  they 
had  no  right  to  insert  any  restrictions  whatever 
in  the  Constitution.  Now,  he  had  heard  no  man 
in  that  committee  assert  such  a  doctrine  as  that. 
The  gentleman  from  Orleans  had  asked  about  the 

restrictions  on  electors 

Mr.  PENNIMAN  :  I  said  if  you  conceded  the 
right  to  impose  restrictions  on  electors,  you  con- 
ceded the  whole  ground. 

Mr.  HUNT  said  that  if  he  was  alluded  to,  what 
he  had  spoken  of  was  the  general  restrictions  im- 
posed upon  the  sovereignty  of  the  State. 

Mr.  VAN  SCHOONHOVEN  said  that  they  im- 
posed the  restriction  upon  electors,  because  they 
could  not  submit  that  question  every  year  to  the 
people  as  they  can  this,   as  to  who  shall  be  the 
candidate  for  the  Governor.     If  they  could  every 
year  decide  if  a  certain  man  was  qualified  to  vote 
or  not,  there  was  not  a  man  who  would  hesitate 
to  submit  that  question  directly  to  the  decision  of 
the  people      And  if  the  people   should  say  that 
there  should  be  no  restrictions  whatever  as  to  the 
qualifications  for  an   elector,  would  any  of  them 
hesitate  to  bow  to  this  ?     No  !  certainly  not.     If 
they  would  put  this  question  of  electors   to  the 
same  test  as  that  of  Governor,  he  would  agree  to 
remove  all  qualifications  for  electors ;  but  it  can- 
not be  done.     Some  asked-,  why  not  leave 
point  also  without  restriction  ?     Why  not  select 
a  candidate  for  Governor  who  is   not  an  elector  ? 
For  a  very  good  reason.     To  require  a  Governor 
to  have  less  qualifications  than  those  who  choose 
him,  would  indeed  be   putting  the  elected  above 
the  electors.     It  lifts  him  up  over  and  above  all 
the  people  oi  the  State  beside.     And  this  was  in- 
troducing a  principle  in  our  system  not  in  accord- 
ance with  our  doctrine  of  equality.     That  was  an 
objection  sufficiently  strong  for   him.  .  The  gen- 
tleman from  Essex  (Mr.  SIMMONS)  had  asked  the 
convention  what  necessity  there  was  (to  follow  out 
our  views)  for  common  schools,  and  institutions 
for  learning  to  instruct  the  children  of  the  State  ? 
And  whether  in  carrying  out  our  views,  we  meant 
to  throw  away  all  the  qualifications  of  education  in 
our  Governor,  and  take  a  candidate  at  random  from 
any  part  or  position  in  the  State  ?     Now,  no  man 
— not  even  that  gentleman — went  farther  than  he 
(Mr.  V.  S.)  would  for  the  necessary  qualifications 
of  education,  moral  character,  and  proper  train- 
ing in  the  candidate  for  Governor ;   for  it  did  not 
follow  because  they  wished  to  select  a  candidate 
under  30  years  old,  that  they   meant  to   throw 
away  all  moral  greatness  or  other  tests ;  nor  did  it 
follow  that  in  all  men  over  3D  they  would  secure 
the  necessary  qualifications  of  education,  &c.  for 
a  Governor,  according  to  the   estimate  of  any  of 
the  gentlemen   on  either  side..    Other  gentlemen 
spoke  of  demagogues  ruling   in  a  State  Conven- 
tion to  nominate  a  Governor ;  but  did  they  get  rid 
of  the  rule  of  these  demagogues  by  a  qualification 
of  30  years  of  age  ?     Put  in  the  30  years,  and  still 
demagogues  will  meet  you  at  every  corner  of  the 
State,   and  exert  their   influence.     He  should  be 
happy  to  notice  other  remarks,  but  the  hour  was 
advanced,  and  he  saw  that  the  Convention  was 


mpatient  to  take  the  question.     He  would,  how- 
ever, offer   a  single   remark   with  regard  to  the 
doctrine  of  expatriation  so  strongly  and  frequent- 
y  alluded  to  by  the  gentleman  from  Essex,  (Mr. 
SIMMONS.)     But  he  was  convinced  however,  that 
;his  matter  had  very  little  to  do  with  the  subject 
inder  consideration.     But  he  would  undertake  to 
say  that  whatever  might  be  the   doctrine  on  this 
subject  in  England,   in  France  or  in  Rome,  or  in 
any  other  aristocratical,   or   monarchial  country 
upon  the  face  of  the  earth,   it  has  never  been  the 
doctrine   in   the  judgment  of  the   people.     He 
was  told  that  some  judge  of  the  U.  S.  Court,  had 
said  that  such  was  the  doctrine  of  this  country ; 
sut  the  people  of  this  country  had  never  recogni- 
zed any  such  principle.     And  they  would  laugh 
at  any     who    should    say  that  they   could    not 
alienate  themselves  if  theypleased  to  do  so;  wheth- 
er our  people  by  going  to  Europe,  or  foreigners 
by  coming   here.     The  gentleman  from   Essex, 
(Mr.  SIMMONS)   had  himself  said  that  this  "doc- 
trine was  weakening  in  this  country  :  well,  if  any 
of  it  still  exists,  he  hoped  this  Convention  would 
give  it  the  death  blow  at  once.    Let  it  not  be  said 
or  seen  that  this  Convention  ever  by  a  single  act 
recognized,  or  seemed  to  recognize  this  principle. 
But  who  is  to  fear  any  thing  from  such  a  prepos- 
terous doctrine  even  if  it  were  true.     If  England 
chooses  to  hold  on  to  the  doctrine,  let  her  do  it. 
She  cannot  injure  us  or  any  of  our  citizens  by  so 
doing.     And  to  say   that  we   are  called  upon   to 
hold  on  to  this,  because  England  does,  would  be 
equal  to  saying   that  we  must  adopt  the  doctrine 
of  the  Divine  Right  of  Kings,  because  England 
does.     Let  England  hold  to  it ;  she  cannot  injure 
any   of  our   citizens  by  so  doing ;  and  if  any  of 
our  citizens  choose   to  go  there  and  enjoy  any  of 
the   privileges   of   that  land,  let  them  do  so. — 
The  gentleman  from  Chautauque  had  argued  to  a 
considerable  extent,  that  the  power  of  a  majority 
should  be  restricted  as  tending  to  oppress  the  mi- 
nority.     And  he  had  went  so  far  as  to  suppose  a 
case  where  a  president  having  a  son   under  30 
years  of  age,  he  might  by  bribery  and  corruption 
secure  his  election  as  Governor.     Would  not  the 
same  difficulty  be   as  likely  to  occur  if  the  man 
was  over  30  ?     If  there  was  any  force  in  the  argu- 
ment it  would   apply   in   the   one  case  as  well 
as    in  the    other.     But,  that    we    must  believe 
the  people  of  the  union  were   first  so   corrupt  as 
to  elect  such  a  president,  and  then  that  the  peo- 
ple  of  this   State,   could  all   be  bought  up   by 
the   general    Government — there   was   no  force 
to  the  illustration.       Then   as  ,to  this  sovereign 
power  of  the  majority  what  was  it  ?     There  were 
certain  fixed  principles  that  a  majority  never  can 
touch.     It  would  be   an  assumption,  and  a  viola- 
tion he  might  say  of  divine  right  to  touch  them. 
There  were  certain  principles    recognized  over  ^ 
the  civilized  world  among  men  of  intelligence  ' 
which  secured  those   rights  which   we  call  un- 
alienable — the  right  to  life,  liberty  and  property. 
No  majority  can  assail  those  rights  ;  but  in  rela- 
tion to  all  questions  and  principles  of  expediency 
and  of  policy  which  are  entirely  arbitrary,  which 
are  to  be  judged  of  by  their  effects  on  the  inter- 
ests of  the  community,  who  would  stand  up  and 
say  that  the  majority   should  not  rule  ?  And  he 
expressed  the  hope  that  no  provision  would  be 
inserted  in  the  Constitution,  which  would  bind 


245 


the  body      .But  whether  he  was  canea  a  aema-  me  Maie  repre  iceiing  m  me  ycup 

gogue  or  not  he  would  say  here  that  he  had  very  that  part  of  the  State.     And  they  were  boui 

great  confidence  in   the  good  sense  of  the  sover-  say  that  the  Legislature  does   speak  out  the 

eiffn  people.      No  suggestion  of  that  kind  would  ings  of  the  people  ;  and  in  relation  to  the  ma 


!he  people — in  what  might  more  properly  founded  the  legislators  with  the  sovereign  peo- 
ne  deemed  a  matter  of  legislation — for  a  long  pe-  pie  ? 

riod.  They  might  under  the  change  of  circum-  Mr.  VAN  SCHOONHOVEN  was  glad  that  he 
stances  and  things  desire  to  change  it  in  the  had  got  something  like  a  definite  statement  from 
course  of  a  few  years,  and  he  would  leave  them  the  gentleman  upon  this  point.  And  it  appeared 
free  to  act  through  the  legislative  department. —  to  him  that  the  gentleman  from  Essex  (Mr.  SIM- 
He  trusted  therefore  that  he  at  least  would  not  be  MONS)  put  the  legislators,  as  a  class,  above  the 
charged  with  acting  in  this  matter  from  any  oth-  people.  And  if  he  takes  up  that  position  as  an 
er  consideration  than  that  of  a  desire  to  promote  argument,  he  had  no  disposition  to  argue  with 
the  interests  of  the  State,  and  to  fulfil  the  de-  him.  He  (Mr.  V.  S.)  was  bound  to  believe  that 
mands  of  duty  imposed  upon  him  as  a  member  of  a  representative  who  came  there  from  any  part  of 
the  body  But  whether  he  was  called  a  dema-  the  State  represented  the  feeling  of  the  people  of 

•-•'"•"•»          '•'    -        -    *•*!.•-•«*-*-      And  they  were  bound  to 

'     feel- 

people.  No  suggestion  of  that  kind  would  I  ings  of  the  people  ;  and  in  relation  to  tne  matters 
ever  deter  him  from  giving  free  expression  to  he  had  referred  to,  there  has  been  a  direct  expres- 
the  sentiment  and  voting  in  accordance  with  it.  sion  of  opinion  by  the  legislature.  Some  few 
He  was  aware  of  the  strong  disposition  that  existed  years  ago,  when  he  had  the  honor  to  occupy  a 
here  and  elsewhere  on  the  part  of  many  to  stand  seat  upon  that  floor,  the  principle  of  taxing  ground 
out  distinctly  as  the  strong  friends  of  established  rents,  and  that  of  distress  warrants  was  brought 
principles  and  old  land  marks,  as  they  were  called,  up  ;  and  but  a  very  few  could  be  found  to  advo-* 
There  were  those  who  always  took  alarm  at  the  cate  a  change  for  the  better  ;  and  yet  but  a  corn- 
idea  of  disturbing  the  established  order  of  things,  paratively  short  time  passed  away  and  the  mem- 
Why  we  had  been  told  over  and  over  again  that  bers  of  the  Assembly  and  Senate  voted  for  a 
we  were  paying  no  respect  to  the  framers  of  the  change. 

Constitution  of '21,  or  regard  to  the  wisdom  of  Mr.  SIMMONS:  Did  those  Senators  who 
that  day— and  that  we  had  better  leave  well  voted  for  it,  represent  the  feelings  of  the  people 
enough  alone.  And  it  had  been  urged  also  that  at  the  time  they  voted  ? 

the  people  expected  us  to   confine   our  attention       Mr.  VAN  SCHOONHOVEN  said  that  there 
only  to  such  amendments  as  had  been  agitated  in   must  always  be  a  time  for   a  beginning  to  every 
the  community.     And  the   venerable  gentleman   thing.     When   those    Senators    were   originally 
from  Dutchess  (Mr.  TALLMADGE)  even  went   so   elected,  these  subjects  had  not  been  talked  about 
far  as  to  express  his  regret  that  the  Convention   or  discussed.     They   had  not  been  agitated,  and 
act  had  not  presented  the  subjects  of  amendments,   there  was  a  disposition  in  their  legislature  to  vote 
Now  (Mr.  V.  S  contended)  we  had  a  perfect  right   against  them.     It   was  a  new   Question,  and  the 
to  amend  and  go  through  with  the  whole  instru-   delegates  were  entirely  uninstructed.     They  had 
ment — and  i*  was  their  duty  to  do  it,  and  the  peo-    to  rely  entirely  on  their  own  judgment,  and  they 
pie  expected  it  from  them.*    Mr.  V.  S.  read  from  voted  erroneously  ;   and  the  people  said  so,  and 
the  act,  calling  a  Convention,  to  show  that  it  re-   rebuked  them  for  it.     It  was  only  about  five  years 
quired  them  to  revise  the  Constitution,  thus   em-   ago  that  these  doctrines  were  first  broached,  and 
bracing  the  whole  of  it,  and  to  make  such  amend-   those  who  then  had  the  hardihood  to  stand  up  and 
ments  as  the  interests  of  the  people  demanded. —   advocate  those  doctrines,  were  assailed  on  almost 
In  fact  he  contended  it  was   the   necessity   for  a   every  side   in  the  most  opprobious  manner,  and 
general  and  not  particular  amendment  that  in-   with  the  most  abusive  epithets  ;  he  was  called  an 
duced  the  calling  of  the  Convention.     This  par-    Indian,  &c.  &c.;  and  upon  this  very  floor  his  own 
ticular  proposition  now  under  discussion  was  one   colleague  had  been  assailed  because  he  dared  to 
of  the  amendments  discussed  both  in  the  legisla-   broach  some  of  these  very  doctrines  which  have 
ture,  and  by  the  people,  previous  to  the  passage  of  since  been  advocated  by  the  people,  and  had  been 
this  act.     This  was  a  day  when  Constitutions  and   rebuked  by  the  then  Speaker  of  the  House,  point- 
long  established  principles  were  being  subjected    edly  and  in  a  most  disrespectful   manner.     And 
to  investigation  and  scrutiny  by  the  people,   and   this  showed  them  that  they  should  not  now  hesi- 
gentleman  who  were  so  tenacious  of  holding  on   tate  to  speak  out  their  principles,  because  they 
to  doctrines  that  prevailed   half  a.  century   ago,   chance  to  stand  in  broad   opposition  to  the  doc- 
would  learn  that  there  was  a  spirit  of  intelligence   trines^  advocated  by  others — or  in  opposition  to 
and  advancement  abroad  among  the  people,which   principles  that  have  stood  for  near  a  century. — • 
must  and  woulfc  be  obeyed.     And   he   (Mr.   Van    Two  years   ago,  we   could  scarcely  be   heard  on 
S.)  was  not  willing  to  put  his  judgment  against  Uhis  matter;  and  now  the  Legislature,  by  a  large 
the  judgment  of  the  sovereign  people  of  his  State,    majority,  nearly  unanimous,  had  made  it  the  law 
Some  4  or  5  years   ago,  it  had  been   spoken   of  of  the  land  ;  and  this  shows  us  riot  to  put  restric- 
with  horror,  when  some  persons  talked   about   a   tions  on  the   people,  to  operate   for  25   years,  or 
*  change  in  the  system  of  distress  warrants,  and  the    more,  when,  in  much  less  time,  essential  changes 
principle  of  the  taxation  of  ground  rents.  are  sure  to  be  called  for  by  public  sentiment. — 

Mr.  SIMMONS  :     They  do  so  now.  This  is  emphatically  an  age  of  progression.     It 

Mr.  VAN  SCHOONHOVEN  :  Yes  ;  but  a  flat  matters  not  whether  we  or  the  people  impose  re- 
contradiction  has  been  given  to  the  doctrine  of  strictions;  except  in  this  ;  we  have  no  power  to 
the  gentleman  ;  for  a  large  majority  of  the  Assem-  do  so.  But  the  question  is,  shall  we  recommend 
bly  had  declared  in  favor  of  a  change  ;  and  in  the  the  people  to  adopt  a  course  that  will  bind  and  tie 
Senate  a  strong  expression  of  opinion  had  been  up  their  own  actions  for  many  years  to  come  ?  It 
made  in  relation  to  it.  is  the  same  in  principle  and  -effect  as  if  we  were 

Mr.  SIMMONS  asked  him  whether  he  con- 1  to  tie  ourselves  down  by  a  law  that  we  could  not 


246 


act  contrary  to  a  certain  plan  for  25  years.  Now, 
he  would  not  object  to  prescribing  certain  gene- 
ral rules  of  action  which  cannot  be  wrong ;  .but 
he  would  never  consent  to  be  bound  to  act  in  a 
certain  way,  for  a  certain  time  towards  a  certain 
thing,  which  might  be  subject  to  a  considerable 
change  of  circumstances  every  coming  year. — 
And  by  adopting  the  principle  of  the  restrictions 
here  laid  down  we  should  be  paying  a  most  mis- 
erable compliment  to  the  wisdom  and  intelli- 
gence of  the  present  day.  We  should  be  very 
careful  and  not  let  our  own  Constitution  be 
sent  out  to  mislead  other  states  in  this  matter ; 
it  doubtless,  in  regard  to  this  very  clause,  has 
misled  several  states  already  (those  that  have  been 
alluded  to)  in  the  matter  of  framing  their  new 
Constitutions.  They  have  seen  the  restriction  in 
ours  and  adopted  it.  The  fact,  therefore,  of  its 
being  found  in  other  Constitutions  is  nothing. 
But  it  now  remains  for  us  to  say  at  this  late  day, 
whether  we  will,  by  adopting  this  restriction,  put 
forth  the  doctrine  and  say  in  effect  to  the  Euro- 
pean governments,  that  the  people  of  this  great 
and  enlightened  Empire  State,  cannot  be  trusted 
in  the  election  of  their  Executive ;  they  do  not 
feel  it  to  be  safe  to  leave  to  their  delegates  the 
free  choice  of  a -candidate  for  governor.  And  to 
say  in  effect  that  we  are  so  fickle  and  unstable — 
so  liable  to  change — so  liable  to  be  influenced  by 
demagogues — so  liable  to  be  led  astray  by  foreign 
influence — so  liable  to  be  bought  up  by  money — 
so  liable  to  be  swayed  by  the  influence  of  young 
and  inexperienced  men,  and  to  be  influenced  by 
so  many  other  matters,  that  we  are  compelled  to 
put  a  clause  in  the  Constitution  to  restrict  our- 
selves in  this  ve'ry  matter.  It  is  to  say  to  the 
world  that  you  really  cannot  trust  yourselves  as  a 
people  in  the  matter  of  your  own  electiops.  That 
you  must,  in  short,  be  put  in  straight  jackets. — 
And  again,  he  would  ask  if  there  really  was  any 
thing  in  this  bugbear  about  the  people  being  so 
deeply  misled  by  demagogues.  His  friend  from 
Wyoming,  (A.  W.  YOUNG]!  had  deeply  regretted 
that  the  people  had  so  often  been  led  wrong  by 
them 

Mr    A.  W.  YOUNG  :    Have  they  not  ? 

M.  VAN  SCHOONHOVEN:  I  would  ask  the 
gentleman  if  his  party  have  always  selected  the 
wisest  and  best  to  fill  the  chair  of  Governor.  He 
believed  they  had, 

Mr.  SIMMONS:  If  they  had,  there  would  be 
no  necessity  for  restrictions.  Suppose  they  should 
nominate  a  female. 

Mr.  VAN  SCHOONHOVEN:  And  suppose 
the  Whig  party  were  to  meet  and  choose  to  nom- 
inate a  female.  Who  would  object  to  that  ? 

Mr  SIMMONS  :    I  should  like  that. 

Mr!  VAN  SCHOONHOVEN:  The  gentleman's 
past  course  has  not  indicated  that  he  would  like 
that,  sir.  [Laughter.]  If  he  will  put  it  into  his 
amendment. — 

Mr.  SIMMONS:  Yes,  but  under  30  is  the  age 
when  men  are  under  petticoat  government;  or 
when  petticoat  influence  prevails  most  with  indi- 
viduals. 

Mr.  VAN  SCHOONHOVEN  said  there  would 
never  be  a  nomination  made  in  the  State  under 
undue  excitement.  The  candidates  were  always 
talked  about  for  a  long  time  beforehand,  six 
months  or  a  year  before  they  were  nominated. — 


Why,  even  now,  they  could  pretty  well  tell  who 
were  to  be  the  candidates  next  fall. 

Mr.  SIMMONS  and  others :  Name  them— 
give  us  the  names. 

Mr.  VAN  SCHOONHOVEN :  That  was  not 
necessary  under  the  rules  of  the  Convention. — 
But  he  apprehended  that  on  this  subject  gentle- 
men would  find  no  difficulty  in  ascertaining. — 
[Laughter.]  We  could  at  least  tell  within  two 
or  three  men.  The  gentleman  from  Essex  (Mr. 
SIMMONS)  asks  how  we  are  to  get  at  the  merits 
of  a  candidate.  No  difficulty  at  all  about 
that.  By  means  of  the  press  ;  by  conversations  in 
your  public  assemblies,  your  highways  and  by- 
ways, your  bar-room  meetings,  &c.  &c.  If  he 
has  done  any  thing  that  is  good,  his  friends  will 
be  sure  to  let  it  be  known  ;  and  if  he  has  a  fault, 
or  has  done  any  evil,  his  enemies  will  take  good 
care  that  that  shall  not  be  overlooked.  [Laugh- 
ter.] We  shall  therefore  always  know  who  we 
shall  have  to  vote  for.  There  is  no  danger  of 
that.  His  qualities  will  be  thoroughly  canvassed, 
and  spread  as  rapidly  through  the  State,  as  even 
lightning  can  disseminate  the  information.  We 
are  more  likely  to  get  a  good  candidate  if  we  take 
this  restriction  off  than  we  are  if  we  keep  it  on. 
For  there  is  no  danger  of  a  young  man  under  30 
being  selected  unless  he  possesses  very  great  me- 
rit indeed.  An  old  man  may  be  selected  for  other 
reasons  than  talent  or  merit,  but  if  ever  one  under 
30  should  be  selected  it  would  be  for  some  supe- 
rior qualities  which  an  old  man  did  not  possess. 
Was  the  young  man  (the  Governor)  previously 
mentioned  selected  because  demagogues  ruled,  or 
the  people  could  be  bought  up.  No,  it  was  for  his 
superior  qualifications.  And  as  a  general  remark 
he  would  say  that  history  showed  that  young  men 
had  administered  the  government  of  this  State  as 
well  and  even  better  than  the  old  men.  The  gen- 
tleman from  Essex  had  said  we  had  better  take 
care  how  we  strike  down  Democracy  by  taking 
away  these  restrictions.  But  in  this  he  would 
have  the  rich  man's  son  crowd  out  the  poor  man's. 

Mr.  SIMMONS  said  that  the  perpetuity  or  glo- 
ry of  our  Republican  Institutions  did  not  depend 
on  the  talent  of  half  a  dozen  miraculous  young 
geniuses.  The  average  amount  of  knowledge  in 
the  community  was  sufficient  to  support  them,  and 
on  that  they  rest — and  that  requisite  knowledge 
does  not  come  till  after  30. 

Mr.  VAN  SCHOONHOVEN  said  that  the  gen- 
tleman based  his  idea  on  the  assumption  that  the 
poor  or  working  classes  did  not  become  sufficient- 
ly educated  for  public  business  so  soon  as  the 
rich  man's  son.  This  was  a  mistake  ;  so  it  was 
to  suppose  that  they  were  not  woU  educated  be- 
fore 30,  and  could  not  compete^with  the  rich 
man's  son  without  a  limitation  of  age.  Now,  the 
fact  was,  that  the  self-educated  were  the  earliest 
and  best  educated  men. 

Mr.  SIMMONS  said  that  under  30,  there  may 
spring  up  a  few  smart  mushroom,  hot  bed  politi- 
cal aspirants,  but  they  were  generally  not  of 
much  account. 

Mr.  VAN  SCHOONHOVEN  said  that  then 
the  argument  was  that  under  30,  it  was  not  right 
to  select  men  to  transact  public  business.  We 
had  members  of  the  Convention  here  under  30 
years  of  age,  who  had  shown  themselves  to  be  as 


247 


able  as  others.     He  would  ask  why  shut  out  the 
sons  »f  rich  men. 

Mr.  SIMMONS  wished  only  to  put  them  on  an 
equal  footing.  The  danger  was  then  that  they 
would  have  an  unequal  advantage. 

Mr.  VAN  SCHOONHOVEN  urged  that  at  this 
day,  the  knowli dgc-  of  our  political  institutions 
was  pretty  generally  spread  through  the  people, 
and  it  was  in  the  power  of  every  man  to  make 
himself  familiar  with  them.  It  was  a  fact  too  he 
believed  that  where  one  such  man's  son  was  well 
versed  in  the  politics  of  the  day,  20  such  men's 
sons  were  ignorant  of  the  subject.  They  were 
better  educated  generally. 

Mr.  SIMMONS:  I  grant  that— the  best,  but  not 
the  earliest. 

Mr.  VAN  SCHOONHOVEN.  Yes  sir  the  best, 
and  the  earliest.  Go  into  the  institutions  of 
learning  and  you  would  find  it  was  the  members 
of  the  poorer  classes,  who  went  through  with 
the  most  honors  and  came  out  qualified  to  make 
the  best  citizens.  Mr.  V.  S.  went  on  to  say  that 
he  came  here  as  though  he  was  acting  under  the 
solemnity  of  an  oath,  to  act  in  view  of  his 
position  as  a  member  of  the  Convention  and 
of  the  sovereignty  of  the  State.  The  sovereign 
power  he  believed  was  with  the  people,  and 
he  would  never  consent  to  take  it  from  them,  or 
place  any  restrictions  upon  its  exercise.  It  was 
x;ife  under  all  circumstances  to  trust  them  to  its 
fullest  exercise  within  the  prescribed  limits  of 
divine  law. 

Mr.  RUSSELL  said  that  he  had  rose  before  this 
question  was  taken,  to  perform  a  promise  in  ref- 
erence to  the  mode  of  taking  the  final  question 
though  against  his  own  judgment.  He  therefore 
felt  at  liberty  to  make  a  few  remarks  on  this  ques- 
tion not,  before  submitted.  It  appeared  to  him  to 
be  the  wisest  course,  and  the  one  most  in  accor- 
dance with  principle,  to  insert  merely  that  the 
right  of  eligibity  was  co-extensive  with  the  right 
of  voting.  The  power  of  wielding  the  authority 
of  3,000,000  of  people — the  safe-guard  of  improp- 
er legislation  can  be  trusted  to  any  elector  whom 
the  whole  people  shall  choose  to  elect.  If  this 
was  not  so,  then  the  people  themselves  are  «inca- 
ble  of  exercising  that  power  or  of  checking  the 
improper  conduct  of  their  representative,  wheth- 
er judicial  or  otherwise.  The  proposition  he 
made,  was  taken  from  the  Constitution  of  Rhode 
Island,  a  State  not  much  famed  for  its  alacrity  in 
the  adoption  of  republican  principles.  But  this 
one  he  did  considered  as  worthy  of  the  immor- 
tal founder  of  that  State,  Roger  Williams  him- 
self, and  worthy  this  great  State  to  follow.  He 
did  not  agree  with  gentlemen  who  contended 
that  the  people  could  not  impose  any  restrictions 
upon  themselves  that  they  might  deem  necessary, 
but  he  did  hold  that  there  was  no  possible  evil 
that  could  result  from  removing  these  restrictions 
— and  much  possible  good  may  be  prevented  by 
retaining  them.  He  would  appeal  to  nine-tenths 
of  those  who  heard  him,  if  any  practical  evil  had 
arisen  in  the  selection  of  Chief  Justices,  where 
no  restriction  of  this  kind  existed  ?  It  was  the 
miserable  plea  of  availability  so  often  used  in  nomi- 
nating conventions,  by  political  leaders,  that  evil 
was  to  be  apprehended  from.  Not  from  the  peo- 
ple. And  what  was  the  remedy  for  it  ?  Can  yoli 
put  it  in  the  Constitution  ?  There  was  something 


of  the  kind  in  the  Constitution  of  Maryland — that 
they  should  select  as  candidates  the  most  honest, 
wise  and  suitable  men, and  if  it  could  be  carried  in- 
to effect  he  would  be  glad  to  vote  for  such  a  section 
in  this  constitution.  It  was  only  to  be  corrected 
by  the  sober,  second  thought  of  the  people  them- 
selves. They  would  no  longer  sustain  a  candi- 
date, even  of  their  own  party,  who  had  not  some- 
thing more  than  mere  availability  to  commend 
him  to  their  favor.  This  feeling  was  getting  to 
be  prevalent  over  the  whole  country.  In  illus- 
tration of  this  fact,  Mr.  R.  alluded  to  the  settle- 
ment of  a  recent  great  and  absorbing  question  in 
Congress — one  in  which  the  feelings  of  the  peo- 
ple were  deeply  involved,  and  which  might  have 
resulted  in  involving  the  country  in  a  bloody  war. 
In  conclusion  he  would  add,  that  in  his  judg- 
ment this  whole  question  belonged  to  the  duties 
of  committee  No.  4,  embracing  the  whole  subject 
of  eligibility  to  office.  But  as  it  being  here,  and 
the  committee  having  undertaken  to  act  upon  it, 
he  had  proposed  his  proposition  to  make  all  elec- 
tors eligible  to  the  office,  and  leaving  it  to  the 
people  to  make  such  selections  as  they  might 
deem  proper.  As  he  had  stated  in  accordance 
with  his  promise,  he  would  withdraw  his  propo- 
sition. 

Mr.  W.  TAYLOR  renewed  the  proposition  to 
strikeout  and  insert  a  provision  that  "  no  person 
who  does  not  possess  the  qualifications  of  an  elec- 
tor, other  than  those  of  a  residence  in  the  town  or 
county,  shall  be  eligible  to  the  office  of  Govern- 
or." Mr.  T.  said  that  in  the  few  remarks  he  had 
made  the  other  day  he  had  alluded  to  the  fact  of 
a  young  man  haying  been  chosen  in  the  State  of 
Michigan  tothebffice  of  Governor.  His  remarks 
on  that  occasion  had  been  made  the  subject  of  com- 
ment by  gentlemen  who  followed  him.  Now  what 
we  said  here  was  not  a  mere  ephemeral  thing,  but 
became  a  matter  of  record,  andwith  the  debates, 
would  go  down  to  posterity  charges  against  the 
character  of  Governor  Mason  which  were  un- 
just and  should  not  be  uncontradicted.  The 
embarrassments  ot  the  state,  and  her  Wild  Cat 
system  of  banking  was  attributed  to  the  fact 
that  she  had  in  him  a  young  Governor.  Mr. 
T.  here  read  from  the  Constitution  of  Michigan 
to  show  that  Gov.  Mason  was  compelled  by  a  con- 
stitutional provision  to  call  the  attention  of  the 
legislature  to  the  subject  of  internal  improve- 
ment— for  by  the  constitution,  it  was  made  the 
duty  of  the  legislature  to  project  a  plan  of  im- 
provement. He  also  recommended  a  loan,  the 
negotiation  of  which  the  legislature  threw  upon 
him,  contrary  to  his  wishes.  The  state  suffered 
loss  by  that  loan— and  became  embarrassed — and 
so  did  many  other  states,  who  had  no  young  men 
governor,  but  which  were  infected  with  the  rage 
then  prevalent  for  internal  improvement.  Gov. 
M.,  Mr.  T.  insisted,  was  as  guiltless  of  blame  in 
this  matter  as  in  regard  to  the  system  of  banking 
— and  were  there  time  he  would  read  from  the 
messages  of  that  very  able  and  accomplish- 
ed young  governor,  to  show  that  he  was  op- 
posed to  the  system,  and  constantly  urged 
upon  the  legislature,  that  proper  safeguards 
should  be  provided  against  loss  to  the  people. — 
It  was  unjust,  therefore,  to  tarnish  the  reputation 
of  that  man,  and  it  was  proper  for  him  to  say 
that  he  had  never  had  the  honor  of  an  acquaint- 


248 


ance  with  him,  but  he  had  always  admired  his 
splendid  talents,  his  course,  and  above  all,  the 
beauty  of  style,  elegance  of  diction  and  sound 
principles  set  forth  in  his  messages.  It  was  pro- 
per for  him,  (Mr.  T.)  having  first  referred  to  him, 
to  repel  these  attempts  to  tarnish  his  fair  fame. 

Mr.  CLYDE  moved  that  the  committee  rise 
and  report.  Lost,  ayes  39,  nays  41. 

Mr.  BROWN  suggested  that  perhaps  the  gen- 
tleman desired  to  address  the  committee  on  this 
question,  and  that  it  was  but  courtesy,  as  he  had 
not  been  heard  before,  that  he  should  have  the 
opportunity. 

Mr.  CLYDE  had  no  desire  to  speak  himself. 

Several  gentlemen  here  expressed  a  desire  to 
be  heard,  when  the  committee  rose  and  reported 
progress. 

Mr.  CHAMBERLAIN  had  leave  of  absence  for 
three  days ;  Mr.  JONES  for  five. 

Adjourned  to  10  o'clock  to  morrow  morning. 

THURSDAY,  (3lst  day)  July  9. 
Prayer  by  Rev.  Mr.  HARRINGTON. 
Mr.  GARDINER  presented  the  petition  of  citi- 
zens of  Niagara  county,   in   relation   to  the  Canal 
policy  ot  the  State,  and  the  improvements,  which 
was  referred  and  ordered  printed. 

The  Secretary  of  State  transmitted  an  answer  to 
the  resolution  as  t  >  the  duration  of  ihe  legislative 
Sdssious  ot  1841-2-3-4  and  1845. 

Mr.  S.VH  i'ii^of  Cnenango,  ftttd  leave  ot  absence 
for  ten  days. 

Mr.  BAKER  moved  that  all  debate  terminate  in 
committee  ol  me  whole  at  1  o'clock  to  day,  on  the 
2d  secuon  ot'  the  leporl  of  the  committee  on  the 
Executive  department. 

Mr.  JORDAN  moved  to  extend  the  time  until 
quarter  bef>re  2. 

Mr.  BAKER  assent  d. 

Mr.  MORRIS  suggested  that  speakers  should  be 
limited  in  the  tune  ihey  should  occupy — mere 
should  be  only  three  hours  to  speak;  several  were 
peculiarly  situated,  and  warned  to  speak,  and  they 
were  entitled  to  it.  Hi>  colleague  was  one. 

Mr.  SvVACKtiAMER  moved  to  limit  each 
member  10  2U  minutes. 

Mr.  CONELY  moved  to  lay  the  resolution  on 
the  table.  Carried,  42  10  41. 

Mr.  BASCOM  moved  to  print  650  additional 
copies  of  Uie  abstracts  of  returns  from  county 
clerks,  auirogaies,  masters  in  chancery,  &c.,  as  to 
expense  of  judicial  pioceedings.  Mr.  B.  explain- 
ed  that  this  would"  only  make  the  number  the 
same  of  all  other  documents,  and  the  absiracts 
were  the  most  important  part  of  these  returns. — 
Agreed  io. 

THE  VIVA  VOCW  VOTE. 

Mr.  KENNEDY  moved  the  following  resolu- 
tions, which  were  adopted: 

Resolved,  That  it  be  referred  to  the  committee  on  the 
powers  ana  dunes  of  the  Legislature,  &c.,  to  inquire  into 
the  propriety  ot  providing  for  the  viva  voce  selection  of  all 
officers  that  may  devolve  ou  eitner  branch  ot  the  Legis- 
lature. 

^Resolved,  That  it  be  referred  to  the  committee  on  the 
appointment  or  election  of  all  officers  whose  functions  are 
local,  &c.,  to  inquire  into  the  propriety  of  providing  that 
all  legislative  bodies  or  official  boards  for  the  State,  or  ior 
any  county, town,  city  or  ward,  ot  two  or  more  persons, 
ou  whom  appointment  to  office  or  employment  ina/  de- 
volve, shall  make  such  appointment  viva  voce,  requiring 
record  to  be  kept,  showing  the  vote  of  each  member  of 
such  body  or  board  ou  making  appointments* 


Mr.  SWACKHAMER  laid  on  the  table  a  reso. 
lution,  fliat  on  and  after  Monday  next  the  Con. 
vention  meet  at  9  o'clock,  A.  M. 

The  Comptroller  transmitted  an  answer  to  the 
resolution  as  to  amount  paid  lor  breaches  of  the 
contracts  on  the  canals.  &c. 

POWERS  AND  DUTIES  OF    THE  EXECUTIVE. 

The  Convention  then  went  into  committee  of 
the  whole,  on  the  above  named  report.  Mr. 
CHATFIELD  in  the  chair. 

Mr.  PORTER  said  :  As  a  member  of  the  Exec- 
utive committee  1  desire  to  submit  a  few  observa- 
dons  on  the  subject  under  discussion.  It  may  be 
necessary  to  prevent  misconstruction.  Important 
principles  are  involved  in  tne  dvci-ion  of  the  ques- 
tion; aad  the  subject  deceives  still  gt  eater  impor- 
tance from  theunusUdl  character  of  ihe  arguments 
adduced.  I  propose  to  offer  a  few  suggestions  in 
vindication  of  the  course  pursued  by  the  commit- 
iee,  and  in  opposition  to  the  amendment  now  un- 
der consideration.  The  committee  did  not  feel 
tneaiselves  authorized  to  originate  any  change  in 
the  restrictions  imposed  by  this  section  of  the  con- 
stitution. It  would  have  been  a  stretch  of  power 
on  the  part  of  the  committee  when  the  general 
subject  of  eligibility  to  office  had  been  expressly 
referred  to  another  standing  committee.  It  would 
have  been  on  their  part  a  gratuitous  assumption— 
as  the  public  attention  had  not  been  directed  to 
:he  subject — no  complaint  had  been  made  either 
in  the  Convention  or  by  the  people — and  a  recent 
vote  of  the  electors  had  clearly  signified  the  extent 
to  which  they  thought  proper  to  modify  this  pro- 
vision, by  abolishing  the  freehold  qualification  and 
leaving  the  rest  untouched.  But  as  a  member  of 
this  Convention  I  mo*t  cordially  acquiesce  in  the 
removal  of  the  restriction  of  American  nativity  as 
a  test  of  eligibility.  I  have  no  fear  ot  danger 
from  throwing  open  to  naturalized  citizens  the 
doors  either  of  our  legislative  halls  or  of  the  Ex- 
ecutive  mansion.  We  have  an  abundant  guaran- 
tee of  their  fidelity  to  our  institutions,  and  their 
patriotic  regaid  for  the  country  of  their  adoption. 
Sir,  if  you  and  I  are  Americans,  it  is  ihe  result  of 
the  Ofcere  accident  of  birth.  It  is  no  merit  of 
yours,  that  youi  ancestors  were  exposed  to  the 
wintry  blast  which  swept  over  the  Mayflower.  It 
is  no  merit  of  others  that  they  are  descended  from 
those  who  shared  in  the  penis  of  Bunker  Hill  and 
of  Lexing:on.  But  there  are  those  here  who  can 
claim  some  merit.  One  side  of  this  house  we  see 
the  honorable  gentleman  from  Orange,  (MR. 
BROWN)  a  native  of  the  land  of  Bruce  and  of 
Burns.  On  the  other  side  of  tnis  chamber 
sits  the  honorable  gentleman  from  Steuben,  (MR. 
KERNAN)  a  native  of  the  land  of  the  harp  and 
ihe  shamrock.  Born  in  far  oh*  cliaies,  they  have 
left  their  paternal  hearthstones,  the  homes  of  their 
ancestors,  the  scenes  of  early  association,  the  land 
of  their  nativity.  Attracted  by  the  spirit  of  lib- 
erty, they  selected  this  fiom  all  ihe  lands  of  the 
eaith,  as  that  in  which  they  would  choose  to  pass 
the  vigor  of  their  manhood,  and  the  evening  of 
their  days;  and  now  we  s^e  them  both,  in  advao- 
cing  years,  with  the  well  eained  confidence  of 
their  respective  constituent,  coming  up  together 
as  the  representatives  of  a  free  people  to  assist  in 
laying  anew  the  foundations  of  the  commonwealth . 
I  know  these  men  to  be  patriots.  I  know  how 
well  they  merit  the  confidenca  of  their  adopted 


249 


(ry.     I  would   confide  to  either  of   them  the 
Executive  power  of  the    State.     As  one    of  the 
members  ot  this  Convention,   I  am  in  favor  of  re- 
moving as   far  as  possible  every  invidious  distinc- 
tion between  the  naturalized  citizen  and  the  citi- 
zen by  birth;  and  shall   record  my  vote  in  favor 
of  removing  the  restriction  to  native  citizens.     As 
a  member  "of  the  committee,  I  did  not  ft-el  at  lib- 
erty to  originate,  but  as  a  member  of  this  house  I 
shall  coidially  support  the  proposition  ;  and  if  I 
am  not  misinformed,  the  able  chairman  of  our  com- 
mittee (Mr.  MORRIS)  concurs  with  me  in  opinion. 
But  deeming  the  other  gratifications  of  vital  im- 
portance, I  cannot  vote  to  undo  utterly  the  work 
of  our  fathers.     It  seems  somewhat  novel  that 
among  those  members  of  this  body,  who  would 
discard   the  restriction   of  age,  are  gray   haired 
men,  who  have  been  the  cotemporaries  of  the 
Frst  Consul  of  France,  and  seen  in  their  own  time 
the  desolating  strides   of  military  conquest;  and 
that  it  should  devolve   on  the  younger  delegates 
to  warn  their  seniors  of  the  influence  upon  the 
youthful  mind,  of  the  seductions  of  power,  and 
the  blandishments  of  ambition.     Sir,  did  the  gen- 
tleman from  Ontario  consult  the  records  of  the 
past,  when  he   expressed  the  apprehension  that 
\ve  had  more  to  fear  from  the  dotage  of  age  than 
from.the  impetuosity  of  youth  ?     Such  is  not  the 
lesson  which  the  historian  has  recorded.     There 
is  wisdom  in  the  fable,  fear   nothing  from  King 
Log,  fear    much  from  King  Stork.     In  a   repre- 
sentative democracy,  let  the  young  man  and  the 
old  man  meet  in  council  in  the  representative 
hall.     Infuse  into  your  legislation  the   energy  ot 
youth,  and  the  wisdom  of  age ;  but  clothe  no 
.young  man  with  executive  power.     Let  no  young 
man  be  enabled  to  throw  open  your  prison  doors, 
to  declare  your  counties  at  his  pleasure  in  a  state 
of  insurrection,  to  pour  in  upon  the  insurgents 
the  military  power  of  the  State,  to  exercise  the 
mighty  prerogative  of  the  Roman  Tribune,  in  ar- 
resting the  mandate  of  the  popular  will  and  for- 
bidding the  laws  which   the  people  have  ordain- 
ed.    It  is  the  right  of  every  citizen  to  have  a 
voice  in  the  selection  of  his  rulers.     It  is  not  the 
right  of  every  citizen  to  be  selected  as  a  ruler. — 
The  enjoyment  of  freedom  is  a  natural  right.  The 
enjoyment  of  office  is  a  derivative  right.     It  can 
only*  be  conferred  by  the  voice  of  the  people,  anc 
under  such  restrictions  as  they  choose  to  impose 
The  gentleman  from  Oneida  (Mr.  KIRKLAND)  in 
his  argument  yesterday,  contended  that  the  effec 
of  this  restrict  on  would  be  to  exclude  from  eligi 
bility  to  the  office   of  Governor  170,000  electors 
who  are  between  the  ages  of  twenty-one  and  thirty 
years.     But  I   submit  to  the  gentleman  that  th< 
argument  is  fallacious.     The  people  do  not  ex 
elude  us  from  the  enjoyment  of  an  office  which  i 
our  right,  but  merely  decline  for  a  period  to  con 
fer  upon  us   a   privilege  which  they  may  eithe 
grant  or  withhold.     There  is  no  exclusion,  for  the 
right  is  not  ours,  until  it  is  vested  in  us  by  the 
people.     Arid  is  any  practical  injury  sustained 
Is   there  any    reason  to  apprehend  that  in  th 
residue  of  the  electoral  body,  candidates  will  b 
wanting  who  are  competent  for  the  office  ?     Yoi 
need  apprehend  from  us  no  complaint  of  exclu 
sion,  or  of  abridgment  of  our  rights.     The  you»£ 
men  have  cordially   acquiesced   in  the  propriet 
of  a  restriction,  imposed  for  the  common  benefi 

16 


f  all.     Claiming  to  be  one  of  the  representatives 
f  the  young  men  of  this   State,  let  me  in  their 
ehalf  remind  you  that  we  have  at  no  time  de- 
manded this  change,  and   that  we  have  a  deeper 
take  than  our  seniors  in  the  result  of  these  delib- 
rations.     We  hope  to  live  under  the  protection 
if  this  constitution,  when  others  shall  have  passed 
rom  this  chamber  to  the  grave.     Let  us  consider 
veil  before  we  remove  these  ancient  barriers. 
7hey  were  reared  in  our  own  State  by  those  who 
vad  read  and  reflected  on  the  history  of  the  past. 
They  were  erected  in  our  National  Constitution 
iy  Washington  and    Hamilton — both   venerated 
lames — the   one  then  in   the   vale   of  declining 
fears ;  the  other  in  the  full  vigor  of  youthful  en- 
ergy and  ambition,  and  himself  within  the  limits 
f  the  restriction  he  imposed.     They  were  ap- 
iroved  by  Jefferson  and  by  Madison,  the   ancient 
athers   of  democracy.      The  purpose  of  the  re- 
triction   as  to  residence,  in  the  existing  Consti- 
ution,  has  been   entirely  misconceived.     Even 
he  eminent  gentleman  from  New-York  (Mr.  0'- 
}ONOR)  has  discussed  it  as  if  it  were  directed  at 
naturalized  citizens,   and  characterized  it  as  a 
jroscriptive  and  illiberal  provision.     But  it  will 
)e  remembered  that  under  the  present  Constitu- 
tion, the   native  citizen  is   alone   qualified.     No 
naturalized  citizen  is  now  eligible  to  the  office  of 
Governor,  whatever  the  period  of  his  residence. 
The  sole  purpose  of  the  provision  was  the  exclu- 
sion, for  a  limited   period,  of  citizens  of  other 
States.     The   restriction   of  nativity  having  now 
seen  removed,  we  wish  a  qualification  which  will 
place  on  an  equal  footing  the  naturalized  citizen 
and  the  citizen  by  birth.     I  shall  accordingly,  at 
a  proper  time,  propose,  as  a  substitute  for  the 
amendment  under  consideration,  a  provision  that 
every  elector   shall   be  eligible  to  the  offices  of 
overnor   and   Lieutenant-Governor,  who   shall 
have  attained  the  age  of  thirty  years,  and  shall 
have  been  for  five  years  a  citizen  of  the  State  of 
New-York.     I  put  the  section  in  the  affirmative 
and  not  the  negative  form,  because  the  provision 
is  properly  not  a  restriction  by  the  people,  but  a 
grant  from  the  people.     The  Lieutenant-Gover- 
nor is  embraced  because  the  same  principle  is  ap- 
plicable to  both,  and  by  most  of  the   States  the 
provision  is   extended  to  both.     I   make  no  dis- 
tinction between  the  native  of  Massachusetts  and 
the  native  of  Ireland :  between  the  child  of  France 
and  the  child  of  Virginia.     But  we  require  some 
security  that  the   man  who  within   twenty-five 
years  is  to  wield  the  executive  power  of  five  mil- 
lions of  freemen — whatever  may  be  the  land  of  his 
lineage  or  of  his  nativity — shall  be  familiar  with 
our  vast  commercial   interests,  with  our  local  in- 
stitutions ;  that  he  shall  be  known  to  the  electors 
who  are  to  confide  to  his  charge  the   executive 
power  of  the  commonwealth      The  propriety  of 
the  provision  is  too  apparent  for  argument ;  and 
the  only  question  for  discussion  is  as  to  the  power 
of  the  people  to  impose  the  restriction.     The  de- 
nial of  this   power   overrides   all   qualifications. 
Where  did  this   denial  originate  ?     Was   it  with 
the  people  ?    No.    Who  has  heard  the  bugle  note 
of  alarm  ?     Have  the  young  men  risen  up,  and 
demanded  that  they  should  rule  over  you  ?     Have 
old  men  complained  that  they  could  not  select 
boys  to  govern  them  ?    Have  the  electors  mur- 
mured that  they  were  not  permitted  to  select 


250 


their  chief  magistrate  from  among  the  citizens  of 
Pennsylvania  or  the  citizens  of  Rhode  Island  ? — 
Sir,  it  is  a  new  doctrine.  It  is  a  doctrine  which 
originated  not  wTith  the  people,  but  with  those 
who  expected  to  be  candidates  for  the  people's 
votes.  When  was  it  before  heard  in  the  coun- 
cils of  this  Republic,  that  the  People  had  not 
the  right  to  restrict  themselves  ?— for  this  is  the 
bold  front  which  the  argument  has  assumed. — 
We  are  here  as  the  people.  Our  action  is  only 
provisional,  and  until  ratified  by  them,  is  nuga- 
tory and  void.  As  their  representatives  we  have 
convened  to  enter  into  a  compact  for  our  mutual 
government.  We  vest  the  power  in  a  single  plu- 
rality, against  the  voice  of  a  majority,  to  select  a 
Chief  Magistrate,  who  is  to  preside  over  the 
whole.  While  we  allow  a  plurality  to  prevail 
over  the  majority,  we  require  constitutional  gua- 
rantees that  the  right  shall  not  be  abused.  We 
are  now  regulating  by  compact,  the  relative  rights 
of  a  plurality  in  power,  and  a  majority  out  of 
power.  Do  gentlemen  mean  to  insist  that  the 
sovereign  people  in  Convention  assembled,  have 
not  the  right  to  restrict  the  power  of  a  plurality 
of  the  electors.  Sir,  that  plurality  has  no  power 
itself,  except  by  grant  from  the  people ;  and  shall 
the  people  who  grant,  not  be  permitted  to  re- 
strict ?  The  most  masterly  argument  made  against 
restriction  was  that  made  by  the  gentleman  from 
New  York  on  the  other  side  of  the  house  (Mr. 
O'CONOR)  and  I  submit  to  that  gentleman  that 
even  in  his  argument  there  was  a  fatal  fallacy. 
The  gentleman  says  it  is  pur  right  to  determine 
who  the  people  are,  by  fixing  the  qualifications  of 
electors.  That  having  determined  who  the  peo- 
ple are,  we  cannot  restrict  their  power  to  elect. 
Sir,  the  electors  are  not  the  people.  They  are 
only  a  part  of  the  great  whole.  The  people  com- 
prise all.  You  have  a  Bill  of  Rights  to  protect 
them  in  the  enjoyment  of  life  property  and  liber- 
ty. Does  this  extend  only  to  qualified  electors  ? 
No,  but  to  every  man,  woman  and  child  within  the 
dominion  of  your  laws.  These  constitute  the 
people,  and  we  are  their  representatives.  The 
gentlemen  from  Ontario  (Mr.  WORDEN)  and  from 
Albany  (Mr.  HARRIS)  deny  our  right  to  restrict 
any  but  delegated  power.  Why,  sir,  the  power 
of  the  electoral  body  itself  is  a  delegated  power- 
not  in  form  but  in  effect — by  the  necessity  of  the 
social  compact.  We  were  elected  only  by  quali- 
fied voters.  But  we  are  the  representatives  of  all. 
Those  electors  themselves  were  but  the  represen- 
tatives of  the  people.  Four  hundred  and  fifty 
thousand  electors  act  for  two  millions  and  a  half 
of  citizens.  Nay  more,  two  hundred  thousand 
electors  may  constitute  a  plurality.  Shall  those 
two  hundred  thousand,  a  minority  even  of  the 
electoral  body,  without  restriction  or  barrier,  se- 
lect whomsoever  they  please,  to  rule  over  two 
and  a  half  millions  of  freemen  ?  Every  man  that 
voted  for  you  and  me,  represented  in  his  turn  five 
unqualified  citizens.  W  e  have  a  female  popula- 
tion of  one  million  two  hundred  and  ninety-three 
thousand,  three  times  the  number  of  your  whole 
electoral  body.  They  have  as  deep  an  interest  in 
this  government  as  you — nay,  a  deeper  interest. 
If  your  laws  prove  dangerous  to  liberty,  you  can 
unmake  the  work  of  your  own  hands.  You  are 
clothed  with  the  power  of  the  ballot  box.  You 
have  the  strong  arm  to  resist  unto  blood.  They 


are  voiceless,  powerless,  defenceless.  Are  not 
we  their  representatives  here  ?  There  are  more 
citizens  under  than  over  the  age  of  twenty-one 
years.  They  have  more  interest  than  we,  in  the 
Constitution  we  are  to  frame.  They  are  to  survive 
us,  and  the  electors  who  sent  us  here.  If  we  sow 
the  wind  they  are  to  reap  the  whirlwind.  Nay 
more,  we  are  constitutionally  legislating  for  ad- 
vancing millions.  We  are  assuming  to  act  for  gen- 
erations to  come.  We  represent,  not  the  mere 
party  which  nominated,  not  the  mere  voters  who 
elected  us,  but  the  whole  people  of  New-York,  of 
each  sex,  and  of  every  age  and  condition — aye, 
and  the  succeeding  millions,  whose  constitutional 
rights  we  are  now  asserting,  around  whom  we  are 
erecting  in  advance,  constitutional  barriers  and 
entrenchments  for  the  security  of  their  liberties. 
Was  Magna  Charta  extorted  at  Runnymede,  by 
the  iron  handed  barons  of  Normandy  for  them- 
selves alone  ?  No,  but  for  every  freeman  and  serf 
within  the  limits  of  England — for  every  child  of 
English  lineage  who  has  since  been  born — yes, 
and  for  every  colony  which  has  been  planted  in 
the  wilderness  by  their  descendants,  and  which 
has  burst  in  its  growth  the  bonds  of  colonial  vas- 
salage. Even  in  the  Declaration  of  our  own  In- 
dependence, are  contained  those  doctrines  of  hu- 
man rights,  which  were  first  conceded  by  power 
to  the  spirit  of  liberty  in  the  Magna  Charta  of 
England.  When,  therefore,  we  convene  as  the 
Representatives  of  a  free  people,  to  discuss  ele- 
mentary principles  of  constitutional  law,  let  us 
discard  the  spirit  of  the  demagogue,  and  invoke 
that  other  spirit  of  expansive  patriotism — of  man- 
ly independence  under  a  just  sense  of  responsi- 
bility— of  devotion  to  the  great  and  permanent 
interests  of  the  people.  It  devolves  upon  us  to 
perpetuate  the  privileges  of  our  citizens,  and  to 
guard  our  institutions  from  danger  in  the  distance 
whether  menaced  by  legislative  corruption,  by 
popular  excitement,  by  partizan  frenzy,  or  by  the 
encroachments  of  power.  I  trust  this  question 
will  be  met  as  one  of  principle ;  that  gentlemen 
will  prove  by  their  votes,  that  love  of  the  people 
which  they  profess  in  their  speeches.  Rely  upon 
it,  the  electors  will  prefer  the  substance  to  the 
shadow.  The  time  of  this  Convention,  for  nearly 
half  the  period  of  its  session,  has  been  occupied 
by  professions  of  patriotism,  of  love  for  economy, 
of  devotion  to  the  people.  I. do  not  complain  of 
these  professions.  I  believe  every  word  of  them,, 
We  are  bound  to  suppose  that  the  repeated  as- 
saults which  have  been  directed  at  this  report, 
have  originated  only  in  the  most  ardent  patrio- 
tism. By  some  we  have  been  denounced  for  ev- 
ery article  of  the  old  Constitution  upon  which  we 
did  not  feel  authorised  to  lay  violent  hands.  Pro- 
minent members  of  this  house  have  charged  us 
with  alarming  innovation  in  reporting  sections 
which  have  been  a  part  of  our  Constitutional  law, 
for  nearly  a  quarter  of  a  century.  Some  gentle- 
men were  utterly  bewildered.  They  were  sure 
the  report  was  wrong,  but  knew  neither  what 
;hey  approved,  nor  what  they  disapproved,  until 
>y  italicising  the  old  provisions,  we  enabled  them 
to  discriminate  between  the  present  Constitution 
and  the  amendments  proposed.  They  were  then 
relieved  from  their  patriotic  embarrassment,  and 
is  others  had  denounced  every  old  provision  re- 
ained,  they  with  equally  fervent  zeal  denounced 


251 


every  new  provision  inserted.  Many  gentlemen 
have  discussed  these  questions  with  fairness 
and  liberality,  and  none  more  so  than  the  emi- 
nent gentlemen  from  New- York,  from  Or- 
ange, Ontario,  Rensselaer,  and  Albany,  with 
whom  I  am  compelled  to  differ  in  whole  or  in 
part  as  to  the  merits  of  this  particular  section. — 
If  some  gentlemen  have  exhibited  in  the  course 
of  these  discussions  a  less  ingenious  spirit,  I  at- 
tribute it  only  to  the  exuberance  of  patriotic  feel- 
ing. A  high  sense  of  duty,  with  perhaps  a  slight 
dash  of  this  pure  love  of  the  people,  led  my 
friend  from  Oneida  into  his  original  onslaught  on 
committee  No.  5.  It  was  like  the  memorable 
war  waged  against  the  windmill  by  the  Knight 
of  La  Mancha.  The  result  was  disastrous.  The 
windmill  stood  firm  ;  but  as  for  the  assailant,  my 
friend  from  Orleans  has  written  his  epitaph : — 
The  Knight  of  Oneida — Requiescat  in  pace. — 
But  I  must  not  do  that  gentleman  injustice. — 
There  is  no  member  of  this  House  for  whom  I 
entertain  a  higher  respect.  He  raised  a  ques- 
tion, involving  an  important  principle.  He  dis- 
cussed it  with  ability,  and  though  this  body  dif- 
fered from  him  in  opinion,  I  respect  him  for  his 
manly  independence.  And  upon  the  important 
issue  presented  in  this  discussion,  the  gentleman 
from  'Oneida  has  made  one  of  the  ablest  argu- 
ments in  favor  of  the  doctrine  of  popular  restric- 
tions. Then  came  my  honorable  friend  from 
Chautauque,  in  the  humbler  character  of  Sancho 
Panza,  the  ready  Squire  of  the  Knight  of  Oneida. 
He  was  gallantly  mounted  on  his  favorite  dapple, 
ready  to  wage  fierce  battle  on  committee  No.  5, 
on  the  side,  of  course,  of  the  suffering  people. — 
It  was  strongly  suspected  of  his  gallant  proto- 
type of  old,  that  his  love  was  stronger  for  the 
cheese  and  the  curds  than  for  the  goatherds  and 
shepherds  on  the  hillsides  of  Arragon.  Not  so 
with  myhonorable  friend  from  Chautauque.  We  all 
know  that  he  loves  the  people  ;  at  least  it  is  fairly 
presumed  that  in  common  with  every  gentleman 
he  loves  one  half  of  them,  that  dear  portion  of  the 
dear  people  who  are  not  qualified  electors — of 
whom  my  bachelor  friend  from  Schoharie  assures 
me,  we  may  see  from  day  to  day  many  beautiful 
representatives  in  the  ladies'  gallery  ;  and  if  the 
gentleman  from  Chautauque  refused  them  a  door- 
keeper to  protect  them  from  the  intrusion  of  in- 
dependent voters,  it  was  not  because  he  loved  the 
ladies  less,  but  only  because  he  loved  the  voters 
more.  Sir,  I  have  no  professions  to  make  of  love 
for  the  people.  It  is  sufficient  for  me  to  say  that  I 
am  one  of  the  people,  and  perhaps  in  that  behalf, 
entitled  to  a  share  of  the  regard  which  gentlemen 
profess  for  the  people — their  interest  is  my  inter- 
est. The  gentlemen  loves  the  people — if  he  does 
let  him  love  me.  Their  prosperity  is  my  prosperi- 
ty. I  trust  I  shall  never  have  occasion  to  proclaim 
from  the  housetop  my  devotion  to  their  interests. 
I  have  no  purposes  to  serve  which  require  profes- 
sions. They  will  judge  me  as  they  judge  all,  by 
deeds,  not  words.  Knowing  something  of  my  own 
defects  of  character,  I  know  something  of  the  de- 
fects in  the  popular  character  ;  knowing  the  re- 
ceipts of  individual  self-restraint,  I  know  the  re- 
ceipts of  popular  self-restraint.  I  believe  in  the 
doctrine  of  voluntary  restriction,  the  very  funda- 
mental doctrine  of  self  government.  A  distin- 
guished gentleman  from  St.  Lawrence  (Mr.  PER- 


KINS) insisted  in  his  argument  of  yesterday,  that 
these  restrictions  were  utterly  useless,  for  the 
reason  that  no  party  would  ever  be  guilty  of  the 
folly  of  selecting  a  candidate  under  thirty,  or  who 
had  resided  less  than  five  years  in  the  State.  Yet 
the  gentleman  insists  that  the  restrictions  may 
work  harm.  How  work  harm,  unless  the  con- 
tingency arise  ?  And  if  the  contingency  arise, 
then  the  restriction  is  needful,  and  the  argument 
falls.  Another  gentleman  fromSt.Lawrence  (Mr. 
RUSSELL)  denounces  with  great  force  and  ability 
the  mode  in  which  nominations  are  made,  and  says 
the  power  is  not  with  the  people,  but  with  polit- 
ical parties,  whr>  seek  to  obtain  the  most  availa- 
ble candidates.  I  admit  it,  and  for  that  very  rea- 
son the  people  in  Convention  assembled  should 
restrain  the  power  of  parties,  and  guard  against 
those  admitted  abuses  by  which  our  rights  are  en- 
dangered. It  is  supposed  that  the  political  millen- 
nium has  arrived — th*t  parties  are  no  longer  to 
retain  their  partisan  character — that  the  lion  and 
the  lamb  are  to  lie  down  together  in  peace  ?  His 
colleague  apprehends  that  the  principle  of  re- 
striction as  to  age  may  be  next  imposed  upon  our 
judges;  and  that  no  man  can  be  elected  chief  jus- 
tice until  he  has  reached  his  thirtieth  year.  Is 
it  then  proposed  to  elect  boys  to  our  Supreme 
bench  i  And  is  it  expected  that  the  People  will 
ratify  our  action?  Shall  the  property  and  liberty 
of  two  millions  of  men  be  confided  to  the  charge 
of  heated  youthful  partisans?  The  gentleman 
apprehends  that  we  have  more  reason  to  fear  the 
incautious  selection  of  a  Lieut.  Governor  than  a 
Governor  under  thirty  years  of  age.  The  sug- 
gestion is  of  great  force,  and  he  had  adopted  it 
in  his  proposed  amendment.  But  was  not  this 
an  argument  for  extending  the  restriction  to  both, 
instead  of  removing  it  from  either  ?  His  eloquent 
friend  from  Rensselaer  (Mr.  VAN  SCHOONHOVEN) 
contended  that  the  people  are  able  to  judge  and 
act  for  themselves.  That  was  precisely  what  the 
people  now  proposed  to  do.  In  the  exercise  of 
their  judgment  they  are  proceeding  to  secure  their 
righis  against  infringement,  by  limiting,  or  rath- 
er by  retaining  the  old  limitations  upon  the 
power  of  political  parties  and  or  nominating 
conventions  The  gentleman  from  Albany 
(Mr  HARRIS)  in  an  argument  distinguished  by 
his  usual  torce  and  ability,  conceded  the  propri- 
ety of  the  qualification— considered  them  enti- 
tled to  full  weight  in  a  nominating  convention — 
and  thinks  it  would  be  the  highest  evidence  of 
the  folly  of  a  party  to  elect  a  candidate  destitute 
of  either  of  these  qualifications.  Then  what  is 
the  objection  to  the  provision?  Why  exclude  it 
from  the  palladium  of  our  rights?  Why  throw 
down  one  of  ;he  admitted  safeguards  of  the  Con- 
stitution? The  gentleman  from  Ontario  (Mr. 
WORDEN)  insisted  that  we  had  not  the  powr 
to  impose  restrictions  on  the  people  in  their  se- 
lection of  a  candidate  for  Governor. 

Mr.  WORDEN  disclaimed  having,  taken  this 
position,  and  insisted  that  he  had  not  used  this 
language  in  his  argument. 

Mr.  PORTER  proceeded.  The  gentleman 
disclaims  this  position.  But  will  he  disclaim  the 
argument  which  of  necessity  must  lead  to  that 
position  ?  After  his  explanation,  I  readily  con- 
cede that  I  have  mistaken  his  language.  But 
have  I  mistaken  the  effect  of  his  language  ?  Will 


252 


the  gentlmeau  now  concede  that  the  people  have 
the  power  to  impose  these  restrictions?  If  not, 
I  must  follow  his  argument.  He  contended  that 
restrictions  could  only  be  applied  to  delegated 
power.  That  we  must  repose  the  entire  sove- 
reignty in  the  hands  of  the  people — that  the  doc- 
trine of  balances  and  guards  only  applied  to  dele- 
gated power.  What  is  this,  but  a  denial  of  the 
right  ot  the  people  to  impose  restrictions  upon 
their  own  power.  Sir,  we  stand  in  the  place 
of  the  people.  For  the  purposes  of  this  Conven- 
tion, we  are  the  people.  Cannot  two  men  make 
a  compact. 

Mr.  VVORDEN— They  can,  certainly. 

Mr.  PORTER— Then  cannot  two  millions  of 
men  ? 

Mr.  WORDEN— They  can. 

Mr.  PORTER— That  is  conceding  all  I  ask.— 
We  are  here  to  make  that  compact. 

Mr.  WORDEN— It  is  absurd  to  suppose  that 
two  millions  of  men  will  make  an  absurd  compact, 
and  therefore  they  are  to  be  trusted  to  select  just 
such  a  candidate  for  their  suffrages  as  they  please. 

Mr.  PORTER— Absurd  as  it  is,  two  millions  of 
men  have  made  precisely  such  a  compact,  and  it 
has  stood  in  your  constitution  for  twenty-five 
years.  Whether  the  compact  is  altogether  absurd, 
is  a  question  between  the  gentleman  and  the  con- 
vention of '21 — between  the  gentleman  and  the 
people  of  the  State  of  New  York.  But  if  the  con- 
tract was  absurd,  it  was  their  right  to  make  it. — 
It  is  their  right  to  renew  it.  The  gentleman  from 
Ontario  pronounces  it  absurd.  The  people  ot 
New  York  have  not  discovered  its  absurdity.  We 
are  here  to  enter  into  a  compact*  to  examine  the 
ancient  landmarks,  and  if  needful  to  erect  new 
monuments  to  define  the  boundaries  oi  executive, 
of  legislative,  aye,  and  of  electoral  power.  Such 
a  compact  is  our  bill  of  rights.  If  we  go  behind 
the  social  compact  and  the  doctrine  of  restric- 
tions, it  is  my  natural  right  to  hunt  in  every  for- 
est, to  dig  in  every  valley,  to  reap  on  every  hill- 
side. But  by  that  compact,  we  agree  to  respect 
the  vested  rights  of  property,  and  to  recognize  the 
exclusive  dominion  of  the  landholder.  The  peo- 
ple have  the  power  to  elect  a  King  to  rule  over 
them,  and  make  his  eldest  son  successor  to  the 
throne.  If  gentlemen  deny  that,  they  deny  the 
doctrine  for  which  they  contend,  the  unlimited 
power  of  the  people.  But  by  this  compact  we 
surrender  that  power,  and  declare  for  us  and  our 
descendants,  that  we  will  have  a  Governor  but  no 
King.  He  shall  wear  no  crown.  Two  years  shall 
be  the  limit  of  his  dynasty.  He  shall  not  be  elect- 
ed for  life  even  by  the  voice  of  the  people.  The 
gentleman  from  Ontario,  and  the  genileman  from 
Seneca,  (Mr.  BASCOM)  insist  that  the  question  is 
involved,  whether  we  will  not  entrust  power  to 
the  people.  Not  so,  Mr.  Chairman,  but  that 
other  question  is  involved,  whether  we.  standing 
in  the  place  of  the  whole  people,  will  leave  unli- 
mited power  in  the  hands  of  the  electoral  body. — 
The  question  is  involved  whether  a  plurality  of 
200,000  shall  exercise  absolute  dominion  over  two 
millions  of  citizens.  The  genileman  from  Onta- 
rio seems  to  censure  the  committee  for  not  ex- 
tending the  restriction  to  the  dotard  of  eighty 
years.  Sir,  no  such  provision  was  reported,  for 
none  such  was  needed.  Did  the  gentleman  ever 
read  of  ambition  upon  crutches  ?  In  what  age  and , 


in  what  land  was  liberty  ever  subverted  by  a  do- 
tard of  eighty  years  ?  Can  the  gentleman  answer? 
In  the  course  of  the  able  argument  of  one  of  the 
gentlemen  from  New  York,  (Mr.  NICOLL)  he  in- 
sisted on  the  right  of  the  minority  to  demand  that 
the  majority  should  not  elect  a  boy  to  the 
Chief  Magistracy.  The  gentleman  from  On- 
tario (Mr.  C.)  in  reply  contends  that  if  the 
majority  have  a  right  to  impose  upon  the  minority 
an  unwelcome  Governor  over  thirty  years  of  age, 
they  have  the  same  right  to  impose  upon  the  mi- 
nority an  unacceptable  Governor  under  the  age  of 
thirty  years.  Not  so,  Mr.  Chairman.  The  gen- 
tleman confuses  an  important  distinction.  The 
minority  have  not  a  right  to  select  the  Governor 
of  their  choice,  but  they  have  a  right  to  demand 
that  no  Governor  shall  be  selected  who  will  jeo- 
pardize their  security,  and  the  security  of  the 
commonwealth.  The  gentleman  from  Ontario 
says  that  this  principle  of  restriction  upon  the 
power  of  the  electors  is  not  to  be  found  in  any 
State  Constitution  of  recent  formation ;  that  the 
doctrine  has  been  lony  since  abandoned  and  ex- 
ploded. Sir,  when  it  was  it  abandoned  ?  By 
whom  was  it  exploded  ?  Abandoned  and  explo- 
ded !  It  stands  firm  in  your  State  Constitution — 
in  your  National  Constitution — and  there  at  least, 
if  not  here,  it  will  stand  until  the  great  principle 
of  representative  democracy  shall  fall  The  doc. 
trine  is  recognized  in  the  constitution  ot  every 
state  within  the  limits  of  the  Union.  The  extent 
of  restriction  differs  in  different  States.  But  in 
every  Siate  the  principle  is  maintained.  Even  in 
little  Rhode  Island,  with  a  population  scarce  lar- 
ger than  that  ot  the  county  of  Albany,  they  ha-  e 
thought  some  restriction  necessary  and  permit  the 
electors  to  select  no  man,  without  all  the  qualifi- 
cations of  an  elector,  and  that  under  an  electoral 
law  far  more  stringent  and  vigorous  than  that  of 
the  State  of  New- York.  The  doctrine  of  popular 
restriction  abandoned  and  exploded  !  Why  sir, 
the  provisional  constitution  of  Iowa,  adopted  but 
twelve  days  before  our  session  commenced,  re- 
quires the  Governor  to  have  attained  the  age  of 
thirty  years,  and  to  have  been  two  years  a  resi- 
dent of  the  state,  and  citizen  of  the  United  States. 
The  constitution  of  Florida  adopted  in  1838, 
requires  the  candidate  to  be  thirty  years  ©f  age — 
five  years  a  resident  of  the  State— ten  years  a 
citizen  of  the  United  States.  The  Constitution 
of  Louisiana,  adopted  by  the  people  within  the 
present  year,  requires  ten  years  citizenship,  five 
years  citizenship,  and  the  age  of  thirty-five  years. 
The  Constitution  of  New  Jersey,  adopted  in  1844, 
requires  twenty  years  citizenship,  seven  years  re- 
sidence, and  the  age  of  thirty  years.  Similar 
provisions  are  contained  in  the  Constitution 
adopted  within  the  last  year  by  the  people  of 
Texas  ;  aye,  even  of  Texas,  the  land  of  the  largest 
and  of  the  youngest  liberty,  if  I  may  borrow  an 
expression  of  my  eloquent  friend  from  Columbia, 
(Mr.  JORDAN)— the  land  of  the  lone  star — no 
longer  lone,  for  though  it  rose  in  blood,  it  has  as- 
cended to  its  place  in  the  zenith,  and  joined  the 
glorious  constellation  of  the  old  thirteen.  Final- 
ly, the  Constitution  of  democratic  Missouri,  re- 
q'uires  the  Governor  to  have  attaind  the  age  of 
thirty  years,  to  have  been  five  years  a  resident  of 
the  State,  and  ten  years  a  citizen  of  the  United 
States ;  and  carrying  the  doctrine  still  further. 


253 


prohibits  his  election  for  two  successive  terms, 
even  by  the  people's  voice.  Who  is  it  that  thus 
fetters  the  sovereign  people  of  Missouri  ?  Why, 
sir,  the  sovereign  people  of  Missouri,  in  Conven- 
tion assembled,  at  the  city  of  Jefferson,  in  the 
year  1845.  Once  more  I  ask  when  was  the  doc- 
trine of  self-imposed  restriction  abandoned  and 
exploded,  for  adhering  to  which  our  committee 
have  been  so  often  denounced  ?  It  is  the  doc- 
trine of  the  Union — the  doctrine  of  the  States ; 
and  if  expunged  by  us,  will  be  restored  by  our 
descendants.  But  the  gentleman  from  Ontario, 
after  his  able  argument  against  the  power  of  re- 
striction, declares  himself  in  favor  of  the  five 
years  residence. 

Mr.  WORDEN  :     No,  sir. 
Mr,  PORTER:     Then,  sir,  I  misapprehended 
the  gentleman,  and  will  pass  on  to  other  matters. 
Mr.  WORDEN  would   repeat  what  he  did  say, 
which  was  that  he  would  have  been  content  him- 
self in  regard  to  the  second  section,  if  the  com- 
mittee that  brought  it  forward  had  simply  strick- 
en out  the  word  native  and  the  age  which  was 
prescribed. 

Mr.  PORTER : — That  is  substantially  as  I  un- 
derstood it,  and  all  that  is  material  to  my  argu- 
ment. The  section  imposes  three  restrictions. — 
The  third  of  these  relates  to  residence.  Two  of 
these  being  stricken  out,  and  the  third  restriction 
retained,  the  gentleman  would  be  content  with 
the  section.  Yet  he  holds  each  of  the  restrictions 
to  be  an  infringement  upon  the  people's  sovereign- 
ty. If  he  leaves  one  restriction  he  concedes  the 
power  to  restrain. 

Mr.  WORDEN  : — The  gentleman  does  not  give 
my  language.  He  does  not  comprehend  me.  The 
position  is  absurdity. 

Mr.  PORTER  :— If  I  do  not  give  the  language, 
I  give  its  substance.  If  I  do  not  comprehend 
him,  the  gentleman  will  remember  that  I  am  one 
of  the  people,  and  I  fear  he  will  find  the  rest  ol 
the  people  in  precisely  the  same  condition.  If 
the  position  is  absurd,  its  absurdities  can  be 
shown.  Will  the  gentleman,  if  he  can,  oblige 
me  by  showing  it?  I  will  tell  the  gentleman  oJ 
one  absurdity,  to  use  his  favorite  phrase,  of  which 
I  shall  not  be  guilty.  If  I  believe  that  a  proposi- 
tion is  submitted  to  this  Convention  which  is 
plainly  subversive  of  popular  sovereignty — I  wil] 
neither  be  content  with  the  provision,  nor  per- 
mit it  to  pass  without  objection.  If  the  gentle- 
man adheres  to  his  doctrine  as  to  the  broad  prin- 
ciple of  restriction,  this  is  no  question  of  expedi- 
ency, on  which  our  action  is  unimportant,  on 
which  we  may  act  or  decline  to  act,  speak  or  be 
silent.  Every  sentinel  who  is  placed  by  the  peo- 
ple upon  the  watch-tower,  is  bound  to  give  the 
alarm,  when  popular  rights  are  invaded.  Th< 
gentleman  will  pardon  me,  if  I  do  not  entirely 
comprehend  either  his  argument  or  explanation 
But  I  leave  the  gentleman  from  Ontario — and  in 
conclusion  have  a  suggestion  to  offer  in  reply  to 
other  gentlemen.  It  is  said  that  the  majority  are 
always  in  the  right,  and  that  when  they  tramme" 
themselves,  they  trammel  the  truth.  If  gentle 
men  are  right  in  this,  they  are  wrong  in  the  ar 
gument ;  for  the  section  we  have  reported  ha 
been  already  subjected  to  the  test.  It  was  incor 
porated  by  the  Convention  in  the  Constitution  o 
;21.  At  the  close  of  the  deliberations  of  that  dis 


inguished  body,  the  question  was  taken — shall 
his  Constitution  pass  ?  The  ayes  were  99.  The 
iocs  were  9.  It  was  submitted  to  the  people. — 
The  ayes  were  75,000,  the  noes  were  41,000. — 
The  majority  has  approved  it,  and  according  to 
he  doctrine  of  gentlemen,  their  fiat  is  irrevoca- 
»le.  What  do  gentleman  mean  by  the  majority  : 
V  majority  of  the  electors  of  the  county  of  Sara- 
oga  approve  the  tariff  of '42.  Then  the  tariff  of 
42  is  right.  A  majority  of  the  electors  of  the 
State  of  New  York  disapprove  the  tariff  of '42. — 
Then  the  tariff  is  wrong.  A  majority  of  the  elec- 
ors  of  the  United  States  approve  the  tariff  of '42, 
3r€sto,  change,  and  the  tariff  is  right  again.  The 
heory  is  utterly  untenable.  I  am  a  full  believer 
n  the  doctrine  of  the  government  of  a  majority. 
t  is  because  it  is  the  best  practicable  mode  which 
iiynan  wisdom  has  devised  for  the  government  of 
mankind.  It  is  not  because  the  judgment  of  the 
majority  is  immaculate.  The  very  fundamental 
principle  of  representative  democracy  is,  that  the 
decision  of  the  majority  of  to  day,  if  found  to  be 
erroneous,  will  be  reversed  by  the  decision  of  the 
majority  of  to-morrow.  If  the  majority  is  always 
n  the  right,  then  Silas  Wright  should  not  be 
rour  Governor  to-day,  for  a  majority  of  the  elec- 
ors  voted  against  him  as  a  candidate.  But  I  be- 
ieve  in  the  wisdom  of  that  time  honored  provis- 
ori,  by  which  the  vote  of  a  plurality  of  the  elec- 
tors makes  that  distinguished  citizen  chief  mag- 
istrate of  this  State.  One  word  of  admonition  to 
those  who  have  been  so  kindly  warning  gentle- 
men on  this  side  of  the  house,  of  the  risk  of popu- 
.ar  displeasure.  Let  the  man  who  mounts  the 
dapple  to  run  the  race  of  popularity,  be  he  who 
le  may,  beware  lest  he  receive  a  fall.  Let  him 
who  would  remove  the  accustomed  checks  of 
popular  government  beware  lest  he  hear  the  doom 
af  popular  condemnation.  That  man  will  find 
Little  favor  in  the  eyes  of  the  electors  of  New 
York,  who  is  willing  in  their  name  or  otherwise 
to  destroy  one  barrier  against  partisan  violence — 
to  strike  down  one  safeguard  of  popular  rights. 

Mr.  BROWN  said  there  were  many  subjects 
which  had  been  embraced  within  the  range  of  this 
debate  on  which  he  did  not  propose  to  say  a  word. 
Those  subjects  had  been  fully  and  amply  discussed, 
and  therefore  he  proposed  to  direct  his  attention 
to  a  single  proposition  which  he  was  unwilling  to 
allow  to  go  to  the  world  without  giving  it  a  more 
express  contradiction  than  it  had  hitheito  receiv- 
ed. He  alluded  to  the  position  of  the  honorable 
gentleman  from  Essex  (Mr.  SIMMONS,)  as  to  self- 
expatriation,  and  the  rule  of  perpetual  allegiance. 
He  regarded  that  as  a  distinctive  principle,  calcu- 
lated to  produce  the  worst  possible  consequences. 
If  the  position  had  been  avowed  at  a  political  meet- 
ing, or  if  it  had  fallen  from  a  gentleman  less  dis- 
tinguished than  the  delegate  from  Essex,  or  if  it 
had  been  uttered  in  a  body  of  lessiniportance  than 
this  Convention,  and  it  he  were  not  sure  that  the 
opinion  would  go  down  to  posterity  in  the  publish- 
ed debates  of  this  body,  he  might  have  hesitated 
to  rise  to  say  any  thing  on  the  subject ;  but  he  was 
aware  of  the  great  influence  any  opinion  of  the 
gentleman  trom  Essex  had,  both  here  and  else- 
where; he  desired  therefore  to  place  on  record, 
side  by  side,  with  that  gentleman's  opinion,  his 
own  unqualified  dissent.  He  would  proceed  to 
quote  from  the  remarks  made  by  the  gentleman 


254 


from  Essex  on  the  1st  July — and  the  gentleman 
would  do  him  the  favor  to  believe  that  he  did  -it 
in  no  unkind  spirit.  Mr.  B.  was  not  the  man  to 
take  advantage  of  any  incautious  expression,  and 
make  it  the  subject  of  remark ;  but  he  regarded 
this  as  the  sentiment  of  the  gentleman's  enlight- 
ened intellect,  and  he  should  proceed  to  quote 
what  he  had  said  on  the  occasion  referred  to  : — 
On  the  first  July,  the  gentleman  said  in  debate — 

*  It  was  an  old  settled  rule  of  international  law, 

*  Blacks-tone  says  it  is  the  law  of  the  world,  and 
1  Peters  tells  us  it  is  the  law   of  America— (3, 
'  Peters's  Reports) — that  a  person  coming  from 

*  a  foreign  country,  an  alien  born  though  natural- 
'  ized  here,  was  not  discharged  from  the  allegi- 
'  ance  to  the  country  whence  he  came.    Expatri- 

*  ation  was  not  recognized  by  the  international  law 
'  of  the  world."     On  the  7th  July,  the  gentleman 

again  spoke  on  this  subject :  "  He  desired  permis- 
'  sion  to  explain,to  prevent  misunderstanding.  He 

*  intended  to  affirm,  that  the  subject  of  perpetual 

*  allegiance  was  the  doctrine  of  the  old  world,  so 
'  far    as   we    know — though    it    was    growing 
'  weaker,  and  is  becoming  obsolete  in  practice,  it 
'  would  seem,  in  every  nation.     He  found  in  the 

*  Code  Napoleon  it  was  laid  down  in  very  strong 
'  terms,  and  we  know  it  has  always  been  the  doc- 
'  trine  of  England  and  of  the  ancient  world,  the 

*  Romans  and  the  Greeks."     The  rule — if  it  real- 
ly existed — did  not  affect  the  foreign  born  citizen 
alone.     It  also  embraced  within  its  influence  and 
application  the  native  citizen  who  might  emigrate 
to  Europe,  to  India,  to  China,  to  North  America, 
to  the  islands  and  shores  of  the  Pacific  Ocean,  or 
wherever  else  his  fortune  might  lead  him.     Now 
if  it  be  the  law  of  this  country — he  admitted  it  to 
be  the  law  of  England  and  to  prevail  there — if  it 
is  a  principle  of  American  jurisprudence,  that  a 
person   coming  from   abroad,  or   a  citizen  going 
abroad,  is  never  to  be  discharged  from  this  claim 
of  perpetual  allegiance — if  this  rule  is  still  up- 
held in  this  enlightened  age,  in  the  middle  of  the 
19th  century,  with  the  tide  of  foreign  emigration, 
enlarging  the  boundaries  of  civilization,  over  the 
wide  extent  of   this  great  continent — with  a  po- 
pulation carrying  their  enterprize,  their  energy, 
their  language,  their  laws,  their  arts  and  arms 
and  the  flag  of  their  country,  to  the  utmost  ex- 
tremities of  the  habitable   earth,  it  was  time  it 
should  be  distinctly  understood,  that  the  people 
themselves — the   fountain   of  all  just    power — 
might    apply    the    appropriate     remedy.       But 
with  all  proper  respect  for  the  superior  learn- 
ing of  the  gentleman  from  Essex,  Mr.  B.  submit- 
ted that  the  gentleman  was  mistaken.     That  it 
was  the   principle   of  international  law,   or  the 
Roman  law,  or   of  American  law,  he  would  now 
take  occasion  distinctly  and  deliberately  to  deny, 
and  to  put  his  denial  on  record  that  he  might  ap- 
peal to  it  hereafter.     The  case,   (said  Mr.   B.) 
to  which  the  Hon.  gentleman  from  Essex  had  re- 
ferred as  authority  for  the  rule  that  the  law  of 
perpetual  allegiance  prevails  in  this  country,  is 
that  of  Shanks  and  others  vs.  Dupont  and  others, 
3  Peter's  Rep.  242.     I  have  looked  into  the  re- 
port of  that  case,  and  it  fails  wholly  to  support 
the  principle  asserted.     The  plaintiffs  were  the 
children  of  Ann  Scott,   who  intermarried  with  a 
British  officer  during  the  occupation   of  the  city 
of  Charleston  by  the  enemy.     She  was  a  native 


of  that  city,  and  removed  with  her  husband  upon 
its  evacuation  in  1762,  to  England,  where  the 
plaintiffs  were  born,  and  where  she  died.  The 
suit  was  brought  to  recover  lands  upon  James' 
Island,  of  which  her  father  died  seized  in  1752. 
Judge  Story  delivered  the  opinion  of  the  court 
and  as  he  read  it,  nothing  more  i.s  settled  than  that 
the  plaintiff's  title  was  protected  by  the  7th  arti- 
cle of  the  treaty  of  1763.  It  is  worthy  of  remark 
that  the  learned  judge  speaks  of  a  double  allegi- 
ance, wh:ch  might  be  due  from  the  ancestoi  of 
the  plaintiffs — that  to  South  Can-lin?,  the  place 
of  her  birth — and  that  to  Great  Britain,  under 
whose  government  she  waa  horn.  He  solves  the 
difficulty  by  declaring  that  those  who  adhered  to 
Great  Britain  were  to  be  considered  British  sub- 
jects, and  those  who  adhered  to  America  were  to 
be  deemed  American  citizens.  His  friend  from 
Essex,  for  whose  powers  of  research  and  varied 
learning  he  entertained  profound  respect,may  have 
been  misled  by  the  opinion  of  Judge  Johnston, 
who  dissented.  He  does  say  that  the  doctrine  of 
perpetual  allegiance  was  the  rule  of  the  common 
law,  and  that  the  common  law  had  been  adopted 
into  the  code  of  South  Carolina.  He  does  howev- 
ever  admit  that  the  acts  of  South  Carolina,  when 
asserting  her  independence,  must  be  looked  into, 
to  determine  whether  she  may  not  then  have  mo- 
dified the  rigor  of  the  common  law,  and  substi- 
tuted principles  of  greater  liberality.  This  learn- 
ed judge  arrives  at  the  conclusion  that  the  rigcr 
of  the  common  law  upon  the  question  of  allegi- 
ance in  South  Carolina,  has  suffered  no  abatement. 
Such  however  was  not,  and  never  had  been,  the 
judgment  of  the  high  and  dignified  tribunal  of 
which  he  was  a  member,  and  such  never  can  be 

1  he  judgment  of  any  enlightened  American  court 
animated  by  a  just  regard  for  the  great  principles 
of  public  liberty  which  lie   at  the   foundation   of 
our  political  institutions.     Such   was  the  case   in 
Peters'  Reports.     And  as  to  the  docti  ine  of  the  Ro. 
mans,  (Mr   B.)   had   not  had  time  to  examine  the 
subject  as  fully  as  it  deserved ;  but  he  had  referred 
to  an  able  writer  whose  opinion   was   entitled   to 
great  weight  (Chancellor  Kent),  and  he    found — 

2  Kent,  42 — this  language  :  "  Cicero   regarded    it 
as  one  of  the  firmest  foundations  of  Roman  liber- 
ty, that  the  Roman   citizen  had  the   privilege   to 
stay  or  renounce  his  residence  at  pleasure."     This 
eloquent  and  profound  jurist  used  this  term   resi- 
dence, in  no  narrow  or  limited  sense.     He  design- 
ed to  assert,   and   does   assert    the   right   of    his 
countrymen,    to    expatriate    themselves,    to    re- 
move from    one   country  to  another,   and  to   re. 
n  unce— if  they    choose— that   mc.'St  valuable    of 
all     political    fights  — the    right     to    the     rank 
and    privileges    of  a    Roman    citizen.       Its  aa- 
thority  derives  no  small   consequence  from   the 
consideration,  that  it  was  uttered  at  a  time  when 
Rome  was  in  the  plenitude  of  her  power;  when  she 
embraced  within   her  limits   many  powerful  na- 
tions, and  while  her  eagles  were  planted  beyond 
the  confines  of  civilization.     The  rule  of  perpet- 
ual  allegiance  was  not  therefore  the   doctrine  of 
the  Rpmans  in  the  days  of  Cicero,  and  in  regard 
to  the  international   law  of  the  present  day,  his 
friend  from  Essex  would  again  find  himself  mis- 
taken.    He  would  quote  again  from  the  same  wri- 
ter— 2  Kent's  Commentaries,  43  :    "  The  writers 

on  public  law  have  spoken  rather  loosely,  but 


255 


"  generally  in  favor  of  the  right  of  a  subject  to 
"  emigrate  and  abandon  his  native  country,  unless 
"  there  be  some  positive  law,  or  he  is  at  the  time 
**  in  possession  of  *  public  trust,  or  unless  his 
*'  country  be  in  distress,  or  in  war,  and  stands  in 
"  need  of  his  assistance.  The  principle  which 
"  has  been  declared  in  some  of  our  state  consti- 
"  tutions,  that  the  citizens  have  a  natural  and  in- 
*•  herent  right  to  emigrate,  goes  far  towards  a  re- 
"  nunciation  of  the  doctrine  of  the  common  law, 
*'  as  being  repugnant  to  the  natural  liberty  of  jnan- 
'  kind,  provided  we  are  to  consider  expatriation 
'  and  emigration  as  words  intended  in  those  ca- 
'  ses  to  be  of  synonymous  import."  The  same 
vriter  says :  "  This  question  has  been  frequently 
'  discussed  in  the  courts  of  the  United  States,  but 
'it  remains  to  be  definitely  settled  by  judicial 
'decision."  It  is  worthy  of  observation  that 
in  all  the  reported  cases — some  five  or  six  in 
number — that  have  engaged  the  attention  of 
the  federal  courts,  during  the  last  forty  years, 
the  judges  have  carefully  abstained  from  ex- 
pressing any  opinion  upon  the  question,  whe- 
ther the  rule  of  perpetual  allegiance  prevail- 
ed iti  this  country.  This  hesitation  and  un- 
willingness to  meet  and  determine  the  question, 
arose  di  ubtless  out  of  the  consideration  that  such 
was  the  rule  of  the  English  Common  law  which 
had  been  adopted  info  the  code  of  the  American 
States.  And  the  judges  had  remained  silent  rath- 
er than  declare — what  it  was  not  possible  to  con- 
trovert— that  its  existence  was  wholly  incompati- 
ble with  the  theory  of  popular  government.  As 
a  rule  to  determine  the  rights  of  property,  and  lo 
regulnte  the  descent  and  inheritance  of  real  estate, 
it  would  cio'Jbtless  be  maintained  ;  but  as  a  mere 
question  of  political  right,  as  a  rule  to  determine 
the  mutual  relations  and  the  mutual  obligations 
between  men,  and  the  government  under  which 
they  were  born,  it  must  perish  arid  pass  away  a- 
xnongst  the  false  doctrines  of  past  a«es.  The  right 
of  expatriation,  was  not  an  absolute  unqualified 
right,  to  be  exercised  at  all  limes  and  under  all 
circumstances.  It  was  restrained  and  limited  by 
circumstances  the  force  of  which  all  must  admit". 
No  man  could  be  permitted  to  abandon  his  coun- 
try while  ii  was  in  distress,  in  a  state  uf  war,  or 
when  his  services,  or  property,  were  absolutely 
needed  for  its  defence,  and  protection.  The 
American  citizen  who*e  residence  was  upon  the 
Rio  Grande,  or  any  where  else  upon  the  Southern 
border,  could  not  at  this  moment  be  allowed  to  re- 
nounce his  country  and  unite  with  the  Mexicans 
He  could  not  do  so,  without  contributing  to  the 
strength  of  the  public  enemy  and  thus  to  some 
extent  endangering  the  public  safety.  His 
right  to  emigrate  is  therefore  very  properly 
suspended  until  a  more  propitious  season.— 
On  this  nearly  every  writer  on  international  law 
would  agree.  But,  again,  if  this  rule  of  perpetu- 
al allegiance  should  be  admitted,  to  what  it  would 
lead?  If  a  man,  in  whatever  land  he  may  have 
been  born,  wherever  providence  may  have  cast  his 
lot,  on  whatever  soil  he  may  have  drawn  his  first 
breath,  were  to  be  forbidden,  without  the  con- 
sent of  his  government,  to  change  his  allegiance, 
he  would  be  subject  to  a  despotism  like  that  which 
binds  the  serf  of  eastern  Europe,  to  the  soil  on 
which  he  lives— which  makes  him  part  and  par- 
cel of  the  estate,  and  fails  to  recognize  that  he  is 


endowed  with  the  attributes  of  humanity.  It 
would  be  a  rule  oppressive  and  infamous  in  its 
nature,  for  it  would  circumscribe  human  effort, 
set  limits  to  human  enterprise,  and  counteract  the 
divine  command  given  to  man,  "  to  multiply  and 
replenish  the  earth,  and  to  subdue  it.  It  was  the 
doctrine,  as  the  gentleman  from  Rensselaer,  (Mr. 
VAN  SCHOONHOVEN)  said  yesterday,  of  divine 
right  and  passive  obedience,  which  was  put  down 
by  the  English  revolution  of  1642.  It  was  a  law 
at  war  with  the  law  of  progress,  with  human  li- 
berty and  happiness,  which  never  had  the  sanc- 
tion of  the  popular  will,  and  finds  no  response  in 
the  popular  mind.  He  would  therefore  allow  no 
occasion  to  pass  without  marking  it  with  his 
hatred  and  detestation.  He  would  look  for  a  mo- 
ment into  the  origin  of  this  law  of  allegiance.  It 
comes  down  to  us  with  the  feudal  tenures  of  the 
dark  ages.  It  signified  the  tie  or  ligament  which 
bound  the  vassal  to  his  superior,  in  return  for  the 
lands  which  the  superior  had  granted  to  the  vas- 
sal. Under  the  feudal  system,  lands — the  spoils 
of  conquered  nations — were  held  in  subjection  to 
the  chief  or  superior  lord,  upon  the  trust  and  con- 
fidence that  he  would  protect  the  vassal,  who  in 
return  should  defend  his  superior.  To  fulfil  this 
obligation,  the  tenant  or  vassal  took  an  oath  of 
fealty  or  allegiance.  And  when,  in  process  of 
time,  it  became  a  settled  principle  of  English 
tenure  that  all  the  lands  were  holden  of  the  King, 
the  oath  of  allegiance  was  necessarily  confined  to 
the  King  alone.  The  government  in  its  origin 
was  purely  military.  The  age  was  one  of  force, 
of  violence,  and  of  bloodshed — and  the  mass- 
es of  the  people,  whom  we  now  regard  as 
the  only  source  of  just  government,  and  their 
happiness  its  sole  object,  were  not  recog- 
nized and  were  in  a  manner  unknown.  Gov- 
ernment had  no  reference  whatever,  to  their  im- 
provement, their  elevation,  and  the  cultivation 
and  developement  of  their  faculties  as  rational 
and  immortal  beings.  It  was  in  short  an  iron 
rule.  A  crushing  military  despotism.  Such 
was  the  origin  of  the  doctrine  of  allegiance. 
And  as  such  it  comes  down  to  us  among  the  rules 
of  the  common  law.  What  had  been  the  action 
of  the  people  of  England  themselves  upon  this 
rule  of  perpetual,  indissoluble  allegiance  ?  He 
had  shown  how  it  became  the  doctrine  of  the 
common  law,  how  it  was  the  tenure  by  which 
estates  in  land,  were  held.  Did  the  people  of 
England  adhere  to  it  ?  Does  their  history,  from 
the  Norman  Conquest  to  the  present  day,  exhib- 
t  a  long  line  of  unbroken  attachment  to  it  ?  It 
does  not.  On  more  occasions  than  one,  did  they 
signify  their  impatience  of  its  restraints  and 
their  hostility  to  its  existence.  As  early  as  the 
reign  of  Elizabeth,  the  House  of  Commons  be- 
gan to  collect  its  energies,  for  a  struggle  with  the 
Crown.  And  we  behold  the  controversy,  grow- 
ing in  magnitude  every  year,  continually  going 
on  between  principle  on  the  one  side  and  pre- 
rogative on  the  other,  until  it  terminated  in  the 
revolution  of  1642,  a  revolution  memorable  for 
the  maintenance  of  the  principles  on  which  we 
have  always  stood,  the  principles  of  human  lib- 
erty, human  rights,  and  the  promotion  of  human 
happiness.  These  were  the  doctrines  of  Hamp- 
den,  of  Vane,  St.  John,  of  Oliver  Cromwell.  At 
that  time  the  doctrine  of  perpetual  allegi- 


256 


ance  was  repudiated  by  the  English  peo- 
ple. It  was  extinguished  for  a  time  in  the 
blood  of  Charles  the  1st,  who  perished  on 
the  scaffold  in  the  city  of  London.  In  1688  the 
same  principles  were  again  successfully  asserted. 
The  common  law  doctrine,  in  its  political  sense, 
as  applied  to  the  resigning  family,  was  again  put 
aside,  and  the  masses  again  reiterated  that  it  be- 
longed to  them,  on  great  occasions,  and  in  try- 
ing emergencies,  to  say  how  they  should  be  go- 
verned, and  by  what  forms,  and  under  what  in- 
stitutions, their  freedom  and  happiness  should  be 
secured.  They  expelled  the  reigning  family  in 
the  face  of  this  doctrine  of  perpetual  allegiance, 
and  by  means  of  a  Convention  Parliament — a  body 
bearing  no  small  resemblance  to  that  which  as- 
sembled here — they  transferred  their  allegiance 
to  a  new  family,  and  placed  the  reins  of  govern- 
ment into  new  hands.  We  have  the  authority  of 
Blackstone,  one  of  their  most  elegant  writers 
and  eminent  jurists,  for  saying  that  the  oath 
of  all  allegiance  subsequent  to  the  revolution  was 
very  different  from  the  oath  which  was  taken  for 
600  years  before  that  time.  Its  nature  was  left 
in  a  great  measure  undefined,  it  was  uncertain  in 
its  terms,  and  imperfect  and  almost  senseless  in 
its  language.  It  was  during  the  progress  of  these 
struggles  that  the  States  along  our  Atlantic  bor- 
der were  settled.  In  Virginia,  Massachusetts, 
Connecticut  and  Rhode  Island,  the  seeds  of  sound 
government  were  early  planted  by  those  who  had 
served  in  the  ranks  of  the  long  parliament,  who 
had  seen  Russell  and  Sidney  perish  upon  the 
scaffold,  whose  minds  were  deeply  embued 
with  the  political  doctrines  of  that  period.  The 
patriots  whom  he  had  mentioned, — who  were  the 
Washingtons,  the  Franklins,  and  the  Hancocks 
of  their  day  and  generation — whose  names  were 
memorable  in  the  early  struggles  for  civil  liberty 
were  not  the  men  to  submit  to  the  law  of  indis- 
soluble allegiance.  For  a  moment  he  desired 
again  to  advert  to  the  history  of  this  country. — 
Take  for  instance  the  memorable  day  and  year — 
the  4th  of  July,  1776.  Then  three  millions  of 
people,  scattered  along  the  shores  of  the  Atlantic 
Ocean,  composed  the  colonists  of  this  country,  and 
were  the  subjects  of  the  British  crown.  Now  if 
the  rule  of  perpetual  allegiance  was  the  stern, 
steadfast  irrevocable  law,  these  colonists  could 
not  be  relieved  from  its  obligation  by  any  act  of 
theirs  without  the  concurrence  of  parliament. 
Yet,  although  when  the  sun  rose  upon  that  me- 
morable day,  they  were  colonists  and  subjects 
of  the  crown  long  before  its  light  faded  away  in 
the  western  horizon ;  by  their  own  act  they 
had  become  a  free  people.  By  the  single 
effort  of  their  own  indomitable  will  they  had 
severed  the  tie  which  bound  them  to  the 
mother  country,  and  asserted  their  right  to  create 
government  for  themselves,  and  to  promote 
and  extend  their  own  happiness.  What  they  did 
then  may  be  done  again  by  individuals  and  by 
communities,  whenever  circumstances  shall  justi- 
fy it.  They  then  asserted  the  principle  of  hosti- 
lity to  the  law  of  perpetual  allegiance,  and  they 
thereby  afforded  an  example  to  all  future  ages. — 
They  showed  that  they  did  not  regard  allegiance 
as  indissoluble  ;  for  they  asserted  the  right  to  se- 
ver their  allegiance  at  their  own  pleasure.  And 
how  was  it  done  ?  Did  they  wait  until  they  ob- 


tained consent  of  the  parent  country  ?  By  n  . 
means.  They  asserted  their  right  to  do  it  them- 
selves, and  they  did  it  by  their  own  unqualifie-i 
sovereign  act,  depending  on  no  other  earthly 
power  or  person.  They  did  it  in  defiance  of  all 
the  power  and  influence  of  the  British  crown.— 
He  knew  quite  well  that  there  was  a  wide  dis- 
tinction between  the  courts  of  Great  Britain  and 
the  courts  of  America,  as  to  the  point  of 
time,  when  the  tie  of  allegiance  was  real- 
ly broken — the  British  courts,  dating  the 
separation  from  the  treaty  of  peace,  while  our 
own  tribunals,  date  it  from  the  signing  of  the 
Declaration  of  Independence.  And  what  had 
been  the  manner  in  which  Great  Britian  had 
treated  this  question  in  later  times  ?  The  gen- 
tleman from  Dutchess  (Mr.  TALLMADGE)  had 
mentioned  in  the  course  of  the  debate,  the  23 
adopted  citizens,  taken  prisoners  during  the  war 
of  1812,  and  held  by  the  British  Government, 
upon  a  charge  of  treason.  The  circumstance  was 
fresh  in  his  recollection.  Some  of  these  men 
were  from  Newburgh,  the  place  of  his  residence. 
They  were  taken  prisoners  while  serving  in  the 
regular  army  at  the  battle  of  Queenston.  The 
threat  to  execute  them  upon  the  claim  of  per- 
petual allegiance,  was  promptly  met  by  measure? 
of  retaliation  on  the  part  of  our  government,  and 
Great  Britain  was  compelled  to  abandon  the 
ground  she  had  assumed,  and  treat  these  men  as 
prisoners  of  war.  He  would  also  refer  to  the 
case  of  Mr.  Laurens,  the  President  of  the  Con- 
tinental Congress.  He  was  sent  to  negotiate  a 
loan  with  Holland,  some  time  about  the  year  17SO. 
He  was  captured  by  the  enemy  on  the  high  seas, 
and  committed  to  the  tower  on  a  charge  of  trea- 
son, upon  the  ground  that  he  could  not  discharge 
himself  from  the  obligation  of  allegiance.  His 
confinement  was  long  and  rigorous,  but  they  dared 
not  execute  him,  for  they  well  knew  ttiat  the 
doctrine  of  perpetual  allegiance  could  not  be 
maintained,  and  that  the  civilized  world  would 
behold  the  death  of  this  distinguished  patriot 
with  indignation  and  horror  Mr.  B.  desired  to 
advert  to  another  fact.  The  Constitution,  the  act 
of  all  the  States,  confers  upon  Congress  power 
to  establish  uniform  rules  of  naturalization.  Con- 
gress has  exercised  that  power  for  more  than  50 
years.  This  provision  of  the  Constitution  and 
these  laws  of  naturalization,  are  not  mere  idle, 
useless  forms.  They  are  designed  to  accom- 
plish some  substantial  and  useful  purpose,  and 
to  confer  upon  the  citizen  of  foreign  birth,  a< 
well  as  upon  the  Government  itself,  some 
substantial  and  useful  benefit.  Naturalization, 
is  in  the  nature  of — if  it  is  not  in  point  of  fact — 
a  contract.  The  advantages,  the  obligations, 
and  the  duties  are  mutual  between  the  contract- 
ing parties.  The  government  acquires  an  ad- 
ditional citizen,  and  the  citizen  obtains  a  new 
and  a  permanent  home.  The  obligation  on  the 
part  of  the  citizen,  is  obedience  to  the  law  and 
to  support  and  maintain  the  government  to  the 
utmost  of  his  ability  and  strength,  while  the 
duty  of  the  government  is  to  protect  and  defend  him 
to  the  extent  of  its  pcwer.  The  solemnity  of  thi> 
compact,  the  duties  and  the  obligations  which  it 
imposes,  are  wholly  incompatible  with  the  doc- 
trine of  perpetual  allegiance.  They  cannot  all 
exist  at  the  same  time.  Nor  does  the  doctrine 


257 


derive  the  slightest  countenance  or  support  from 
the  course  of  our  own  government  towards  its 
citizens  emigrating  to  other  countries.  It  is 
well  known  that  the  State  of  Texas  was  mainly 
settled  by  emigrants  from  the  Western  States. — 
Its  independence  was  won  by  American  rifles  in 
the  hands  of  those  who  had  been  American  cit- 
izens. In  their  struggle  with  Mexico  they  had 
no  aid,  or  co-operation  from  this  government,  it 
is  true,  but  they  had  the  sympathies  and  the  best 
wishes  of  a  large  portion  of  the  American  people. 
So  far  from  setting  up  a  claim  to  the  allegiance 
of  these  men  by  virtue  of  their  birth  upon  Amer- 
ican soil,  the  general  Government  treated  them  as 
entirely  discharged  from  their  original  obligations 
acknowledged  the  independence  ot  their  adopted 
country  and  dealt  with  them  as  the  citizens  of  a 
new  and  independent  sovereignty.  He  there- 
fore had  long  since  adopted  the  opinion  that 
no  such  law  as  the  law  of  perpetual  allegiance 
had  a  place  in  the  code  of  this  country.  And 
whenever  the  question  of  its  existence  shall  be 
fairly  brought  before  the  Supreme  Court  of  the 
United  States,  for  its  judgment  hereafter,  he  en- 
tertained no  doubt  the  decision  would  be  in  har- 
mony with  our  legislation  for  the  last  seventy 
years,  and  the  arguments  it  had  been  his  duty  to 
submit.  The  question  before  the  committee  was 
upon  striking  out  the  word  native  from  the  section 
of  the  constitution  which  defines  the  qualifica- 
tions of  the  Governor,  and  what  he  had  said  was 
only  incidental  to  that  question.  But  he  felt  it 
was  due  to  a  numerous  and  most  useful  portion 
of  the  American  people,  whose  devotion  to  the 
interests  and  the  honor  of  the  country  had  always 
been  conspicuous,  that  the  doctrine  set  up  in  the 
progress  of  this  debate,  should  not  go  forth  un- 
controverted  among  the  published  proceedings  of 
this  Convention. 

Mr.  PATTERSON  should  not  have  trespassed 
again  upon  the  time  of  the  committee,  but  for  re- 
marks made  by  others  in  relation  to  what  he  had 
heretofore  said.  Gentlemen  would  bear  witness 
that  he  had  thus  far,  at  least,  acted  on  the  prin- 
ciple which  he  had  prescribed  to  himself,  not  to 
discuss  any  proposition  that  was  not  directly  un- 
der consideration.  If  he  departed  from  that  rule 
now,  it  was  because  he  had  been  driven  to  it  by 
others.  It  had  been  alleged  that  he  had  taken 
the  ground  that  the  people  had  no  right  to  impose 
restrictions  on  themselves  in  any  mannei 
whatever.  Now  he  said  no  such  thing  as 
that,  or  that  by  a  fair  construction  of  his 
language  could  have  been  imputed  to  him,  but  he 
did  say  in  regard  to  the  restriction  upon  the  choice 
of  the  people  for  Governor,  that  he  would  im- 
pose none  ;  but  be  said  nothing  about  the 
people  restricting  themselves.  When  a  proposi- 
tion came  up,  recommending  restrictions  in  re- 
gard to  other  officers,  he  would  give  the  matter 
due  consideration,  and  vote  as  his  judgment  dic- 
tated at  the  time — but  now  he  should  say  nothing 
beyond  what  related  to  the  qualifications  for  Go- 
vernor— the  matter  under  C9nsideration.  Com- 
plaint had  been  made  by  some  of  the  members  o] 
committee  No.  5  that  their  report  had  been  un- 
fairly attacked  by  him  among  others.  Now  all 
that  had  been  said  in  relation  to  that  report  was 
in  reference  to  the  word  native.  He  (Mr.  P.) 
said  then  that  it  seemed  to  him  that  the  commit- 


ee  could  not  fully  have  considered  the  subject  or 
hey  would  not  have  reported  it  with  that  word 
n.  But  his  friend  from  Orleans  (Mr.  PENNI- 
MAN)  told  us  that  it  had  been  fully  considered  by 
the  committee  and  that  every  member  had  agreed 
to  it  precisely  in  the  shape  in  which  it  was  re- 
ported. Now  a  wonderful  change  seemed  to  have 
come  over  him  at  least,  for  the  gentleman  told  us 
on  the  floor  yesterday  that  this  word  native  was 
odious,  and  that  he  was  in  favor  of  having  this 
odious  provision  stricken  out. 

Mr.  PENNIMAN  meant  to  be  understood  as 
saying  that  others  regarded  it  as  odious.  But  the 
drift  of  his  remarks  was  in  favor  of  sustaining  the 
word  native,  and  if  the  gentleman  from  Chautau- 
que  or  any  other  gentleman  would  give  him  the 
opportunity,  he  should  vote  to  retain  it. 

Mr.  TALLMADGE  :  I  will  give  you  the  op- 
portunity. 

Mr.  PATTERSON  -If  I  misunderstood  you,  so 
did  the  reporters.  I  understood  you  to  say  that 
the  report  was  fully  considered  by  the  commitiee, 
and  that  every  member  agreed  to  the  whole  of  it. 

Mr  PENNIMAN  had  never  said  a  word  as  to 
the  veto  power,  but  there  were  those  who  knew 
that  he  and  one  other  member  of  the  committee 
did  not  agree  to  that,  part  of  the  report.  In  other 
respects  ail  agreed  to  it. 

Mr.  WORDEN— Is  not  the  gentleman's  name 
appended  to  the  report  ?  It  is  a  little  too  late  to 
say  now  that  he  does  not  agree  to  it. 

Mr.  PATTERSON  said  that  such  was  his  un- 
derstanding. He  read  the  report  of  the  gentle- 
man's  remarks  in  the  Argus — and  he  believed 
those  reports  were  considered  good  reports  ;  fair 
reports.  In  the  Argus  of  this  morning,  the  gen- 
tleman was  repealed  as  having  said,  in  speaking 
of  the  native  qualification,  "  Nor  in  this  had  he 
any  idea  of  reversing  the  vote  to  strike  out  that 
odious  qualification  "  Whether  he  intended  to 
say  that  it  was  odious  in  the  eyes  of  the  Conven- 
tion or  of  the  committee  No,  five,  he  (Mr.  P.) 
would  not  say.  It  was  enough  that  he  found  the 
word  in  a  report  signed  by  Mr.  PENNIMAN  and 
others,  and  which  was  said  to  be  unanimous.  As 
to  the  gentleman  from  Saratoga  (Mr.  PORTER) — 
another  member  of  committee  No.  five,  Mr.  P. 
was  exceedingly  gratified  to  hear  him  this  morn- 
ing, and  all  would  agree  in  saying  that  that  gen- 
tleman had  furnished  a  very  conclusive  illustra- 
tion ot  the  position  that  a  man  under  30  was  at 
least  qualified  to  make  a  most  admirable  speech — 
He  had  presented  the  best  argument  he  (Mr.  P.) 
had  heard  in  favor  of  restricting  the  people  in  re- 
gard to  qualifications  for  Governor.  But  he,  too, 
admitted  in  fact  thai  the  committee  had  not  very 
thoroughly  considered  their  report — inasmuch  as 
he  had  himself  proposed  an  amendment  which 
changed  the  whole  character  of  the  report.  Why, 
the  gentleman  from  Orleans  insisted  that  the  re- 
port required  the  Governor  to  be  a  resident  of  the 
State.  It  required  no  such  thing;  no.  not  even 
as  much  as  did  the  amendment  of  the  gentlemen 
from  St.  Lawrence,  on  Monday  ;  for  a  resident  of 
South  Carolina,  if  he  had  formerly  resided  here 
five  years,  might  under  this  section  as  reported, 
be  Governor.  And  yet  this  was  one  of  the  sec- 
tions that  had  been  so  fully  considered  by  commit- 
tee number  five,  and  unanimously  concurred  in  ! 
And  one  of  the  members  of  the  committee  (Mr 


258 


PORTER,)  had  actually  come  forward  now  with 
an  amendment  requiring  a  man  to  be  a  qualified 
elector  and  a  resident  of  five  years'  standing.  He 
supposed  that  the  truth  of  the  whole  matter  was 
that  the  committee  copied  the  provision  in  the 
old  Constitution,  without  much  attention.  But 
where  did  the  committee  get  the  authority  for 
reporting  a  single  word  of  that  section — it  was 
not  referred  to  them  at  all,  and  they  might  just 
as  well  have  taken  up  the  whole  Constitution  as 
that.  The  subject  of  the  qualifications  for  office 
was  referred  to  committee  No.  4  instead  of  5. — 
Mr.  P.  had  but  a  very  few  remarks  further  to 
make.  He  must  say  that  in  reference  to  the  very 
able  speech  of  the  gentleman  from  Saratoga,  (Mr. 
PORTER,)  he  was  perfectly  delighted  with  the 
flights  ot  fancy  andaguuddealof  the  argument  that 
he  used.  But  he  had  supposed  that  it  was  reserved 
to  the  gentleman  (rum  Monroe  (Mr.  STRONG)  to 
impugn  the  motives  of  members  of  this  house,  and 
that  he  alone  would  have  the  whole  glory  of  that. 
But  even  the  gentleman  from  Saratoga,  in  the 
heat  of  debate,  must  impugn  the  motives  of  gen- 
tlemen who  took  a  different  view  of  this  subject 
from  him— and  insist  that  they  did  so  because 
they  wanted  to  be  candidates  tor  office.  Mr.  P 
left  that  matter  with  the  gentlemen  from  Saratoga 
and  Monroe,  trusting  that  no  other  gentlemen 
would  be  found  impugning  the  motives  of  those 
who  disagreed  with  them  in  matters  of  this  kind. 
.  There  w  as  one  other  remark  of  the  gentleman  from 
Saratoga  requiring  a  word  of  reply.  And  thai 
was  this — that  when  a  gentleman  travels  out 
his  way  to  make  an  insinuation  against  his,Mr.P.'s 
private  character,  as  a  man,  as  a  citizen,  as  a  hus 
band  and  a  father,  he  cast  the  imputation  back 
upon  him  with  contempt. 

Mr.  PORTER  wished  to  know  to  what  remark 
of  his  he  referred  as  implying  ihe  slightest  irnpu 
tation  on  the  gentleman's  -private  charactei  ?  He 
certainly  had  designed  no  such  imputation 

Mr.  WORDEN  :  The  gentleman  from   Sarato 
ga  must  certainly  have  spoken  without   knowing 
what  he   said — not  only  in  reference  to   the  gen 
tlernan  from  Chautauque,  but  to  myself —for  the 
gentleman  made  but  an  imputation  upon  me    tha 
was  nevei  before  thrown  upon  me  by  any  respect 
able  gentleman  here  or  elsewhere. 

Mr.  PORTER  :  I  cb  not  hear  the  remarks  of  thi 
gentleman  from  Ontario.  [Mr.  P.  sat  in  the  oppo 
site  side  of  the  chamber.] 

Mr.  WORDEN  :  The  gentleman  will  hear  from 
me  in  the  course  of  this  debate. 

Mr.  PORTER:  I  am  ready  to  hear  the  gentle 
man  from  Ontario  now  or  hereafter.  As  to  th 
gentleman  Irotn  Chautauque,  he  entirely  misun 
ders'ood  me.  I  spoke  of  his  admiration  for  th 
sex  in  a  general  way,  in  jest,  as  did  the  gentlema 
from  Onondaga  (Mr.  RHOADES)  the  other  day. 
supposed  the  admiration  he  spoke  of  was  mutuz 
— nothing  more. 

Mr.  PATTERSON:  I  am  willing  to  take  th 
explanation.  But  the  manner  of  the  remark, 
misunderstood  by  me,  was  also  mistaken  by  other; 
And  I  have  only  to  say  that  an  insinuation  of  the 
kii.d  will  never  be  made  here  or  elsewhere,  a 
gainst  me,  by  any  man  in  or  out  of  the  hous 
without  calling  down  on  that  man  the  expressio 
of  such  feelings  as  I  entertain.  I  am  happy  th 
the  gentleman  did  not  mean  any  more  than  he  h 


xplained.  But  he  was  extremely  unfortunate  in 
s  language,  if  he  did  not  mean  to  convey  a  di- 
et charge  on  me,  entirely  different  from  any- 
ing  implied  in  the  remark  of  the  gentleman  trom 
nondaga.  I  did  suppose  and  had  a  right  to  sup- 
>se  the  gentleman  intended  a  direct  attack  on 
e,  and  no  man  shall  do  that  without  hearing 
om  me.  I  am  ha;  py  however,  to  hear  that  the 
ri'lernan  did  not  intend  it 

Mr.  RHOADES:  I  di'd  not  allege  that  the  gentle- 

an  from  Chautauque  admired  the  sex — Lut  only 

limated  that  they  admired  him      [Laughter] 

Mr.  PORTER.     I  state  distinctly  that  it   never 

ntered  my  mind  to  make  an  imputation   ora    the 

entlernan's  private  characier,directly  or  indirect- 

,or  of  any  nature  whatever.     He  entirely  misuri- 

erstood  me,  and  1  hope  he  is  satisfied  that  no  such 

sign  was  entertained  by  me. 

Mr.  PATTERSON  was  satisfied    with  the    ex- 

lanation.  But  he  would  say,  that  the  reason  why 

e  supposed  that  he   was   not  mistaken  was    t»e- 

ausc   the   gentleman    previously  reiterated   the 

harge  of  the  gentleman   from  Monroe    that    his 

ourse  here  was  taken  for  the  purpose  of  getting 

ofes. 

Mr.  RHOADES  said  that  as  he  should  be  gov- 
rned  by  views  differing  from  any  that  he  heard 
xpressed  by  others,  he  might  be   permitted  to 
ay  a  word   in   explanation  of  his  position.     He 
hould  not  only  vote  against  all  amendments,  but 
gainst  the  whole  section  itself,  in  the  position  in 
vhich  it  now  stood.     And  this  he  said  without 
.ny  intention  of  offending  the  committee,  No.  5. 
le  said  this  in  advance,  because  it  had  been  inti- 
mated by  the  rebuke  which  had  been  administer- 
ed by  one  of  its  members,  (Mr.  PENXIMAKT)  how 
well  that  committee  were  capable  of  taking  care 
if  themselves,  and  more  particularly  as  he  learned 
hat  the  same  gentleman  had  a  rod  in  pickle  for 
him,  for  what  he  had  already  siid  on  a  previous 
occasion.      He  should  vote  against  this  section, 
>ecause  it  was  a  business  which  did   not  belong 
;o  committee  No.  5,  but  justly  to  No.  4.     Not  on 
;he  ground  that  it  was  imposing  restrictions  upon 
•he  people— and  there   had  been  doctrines  pro- 
mulgated here  on  that  subject  to  which  he  could 
not  subscribe.    The  verv  duty  for  which  we  were 
sent  here,  was  to  impose  these  restrictions.     The 
very   Constitution  which  we  are   called  upon  to 
amend,  shows  that  we  have   been  living   all  the 
while  under  these  restrictions.  The  very  preamble 
of  that  instrument,  reading  as  it  does—"  We,  the 
people  of  the  State  of  New- York,  acknowledging 
with  gratitude  the  grace  and  benificence  of  God,  in 
permitting  us  to  make  choice  of  our  form  of  gov- 
ernment,   do   establish   this    Constitution"— ac- 
knowledges this.     The   very  word  Governor,  or 
the  establishing  of  the  office  was  a  restriction- 
there  could  be  no  governor  else.    The  restricting 
of  the  legislative  power  to  the  Senate  and  Assem- 
bly, instead  of  to  the  people  was   a  restriction.— 
So  with  the  judiciary,  and  indeed  there  was  hard- 
ly a  section  in  the  Constitution   in   which  there 
was  not  some  restriction  imposed  upon  the  peo- 
ple     He  did  not  believe  either   in  the   doctrine 
which  had  been  avowed  here,  that  if  these  resolu- 
tions were  adopted  that  the  people  would  disre- 
gard them.  So  far  as  the  history  of  this  State  could 
show,  the  people  had  always  paid  the  highest  re- 
spect to  their  Constitution.     In  no  instance  with- 


259 


in  his  knowledge,  and  he  thought  none  could  be 
produced,  had  they  shown  a  disposition  to  violate 
it.  The  only  channel  through  which  it  could  be 
violated,  was  through  legislation,  or  by  miscon- 
struction on  the  part  of  the  Executive,  in  con- 
strueing  it  as  he  understood  it,  instead  of  as  set- 
tled by  judicial  decision.  And  also  in  some  in- 
stances by  the  judiciary  themselves,  because  of 
their  attachment  to  some  principle  they  wish  to 
see  carried  out.  From  these  sources,  he  re- 
garded, was  the  only  danger  that  could  result 
from  this  cause,  for  the  people  would  never 
violate  it.  Whatever  might  be  the  character 
of  the  Constitution,  whether  restrictive  or  giv- 
ing the  largest  liberty,  they  would  adhere  to 
it  until  changed  by  a  legally  constituted  assem- 
bly. If  we  were  sent  here  to  place  no  restrictions 
upon  the  people  then  we  are  sent  here  for  the 
purpose  of  destroying  the  Constitution,  and  to  let 
society  be  resolved  into  its  original  elements — 
without  government  or  law.  He  should  not  there 
fore  vote  against  this  section  because  it  restricted 
the  people.  We  saw  in  our  social  state  the  ne- 
cessity of  adopting  some  restrictions  upon  our  in- 
dividual action,  and  without  it  no  real  substantial 
liberty  could  be  preserved.  It  had  been  admitted 
by  almost  every  gentleman  who  had  argued,  that 
even  if  these  restrictions  were  adopted  that  they 
would  be  of  no  account  and  virtually  of  no  use. 
They  attribute  a  great  deal  of  wisdom  to  the  peo- 
ple, and  entertain  no  idea  that  they  will  ever 
elect  a  man  to  govern  them  who  did  not  possess 
the  requisite  qualifications.  They  seemed  to  be 
satisfied  that  there  would  be  no  practical  danger 
even  if  the  restrictions  were  stricken  out. — 
Another  reason  was  that  the  section  did  not  go 
far  enough- -there  was  nothing  of  restriction  in 
it.  In  his  judgment  they  were  not  such  as  the 
people  would  demand,  provided  they  felt  that 
there  was  any  necessity  for  restricting  themselves 
on  the  subject  at  all.  If  we  were  to  assemble  a 
Convention  of  sound,  plain,  honest  and  in- 
leligent  men  in  the  cuuntiy,  without  reference  f> 
party  feeling,  with  the  sole  charge  of  selecting  a 
good  candidate  for  Givernoi — in  his  opinion,  the 
consideration  with  them  would  be,  was  he  a  man 
of  sound  intellect  and  mind,  of  good  moral  cha- 
racter, who  had  received  a  good  education,  who 
had  studied  the  principles  of  government,  who 
was  well  acquainted  with  the  interests  of  the 
country,  and  who  was  of  physical  health,  to  sus- 
tain in  whatever  station  he  might  be  placed,  whe- 
ther as  Governor,  or  as  Admiral  of  the  Navy  and 
Commander  of  the  forces — whether  on  the  ex- 
treme verge  of  54  40  °  ,  or  on  the  Rio  Grande  ? 
And  he  did  not  know  whether  they  would  say 
that  h^  should  he  30  years  of  age — but  he  would 
care  nothing  for  that.  If  they  found  the  other 
qualifications  that  were  necessary,  it  mattered 
little  it  he  was  only  29  years  and  6  months  of  age. 
or  had  resided  in  the  State  only  4  years  and  364 
days. 

Mr.  RICHMOND  would  ask  if  the  gentleman 
would  not  have  him  honest  too  ! 

Mr.  RHOADES  said  he  had  provided  for  the 
Convention  being  composed  oT  honest  men;  and 
he  believed  that  such  men  would  only  select  hon- 
est men,  when  not  under  the  influence  of  party 
feeling.  Under  thfs  view  of  the  subject  he  regar- 
ded the  section  as  entirely,  in  regard  to  its  practi- 


cal utility,  unnecessary.  This  Convention  so  far 
as  he  was  acquainted  with  it  contained  a  great 
amount  of  sound  common  sense,  intelligence  and 
wisdom,  yet  he  did  not  believe  that  all  of  those 
qualities  that  belonged  to  the  state  were  astern, 
bled  here,  and  would  he  dissipated  when  we  clos*  d 
our  labors.  There  would  still  be  enough  left 
among  the  people  to  judge  whether  we  had  sub- 
mitted to  them  a  good  Constitution.  He  had  now 
given  the  reasons  why  he  would  not  vote  for  the 
section  in  the  position  it  occupied.  But  in  saying 
thus,  he  did  not  mean  to  say  that  he  would  not 
vote  for  the  section  if'  it  came  from  a  proper  com- 
mittee, \\hoseduty  it  was  to  prescribe  qualifica- 
tions for  all  officers.  There  w  is  no  reason  why  the 
Governor  should  be  an  exception  to  the  general 
rule-,  particularly  at  this  time,  when  there 
was  such  a  feeling-  in  the  community  to  strip  him 
of  all  power  and  importance.  Now  it  might  be 
well  enough  to  provide  some  such  qualification  to 
hold  the  office,  but  he  did  not  believe  it  was  ab- 
solutely ncessary  to  place  such  an  article  in  the 
Constitution.  It  would  be  lather  of  ornamenial 
effect  in  that  instrument  than  of  practical  effect, 
and  would  show  that  the  Convention  in  their  ac- 
tion were  governed  by  sound,  good  common  sense. 
It  would  show  that  they  did  not  distrust  the  ca- 
pacity or  intelligence  of  the  people,  but  that  they 
were  willing  to  spread  before  the  world,  some  of 
tne  qualifications  that  they  would  require  if  they 
had  to  select  a  man.  Therefore  he  should  not 
vote  for  the  section  of  the  report  of  the  committee 
though  as  he  said  before  he  had  the  most  profound 
respect  and  veneration  for  it- 

Mr.  RICHMOND  said  that  it  had  been  some- 
what  the  practice  heie  when  gentlemen  got  up 
to  make  a  speech  to  state  that  they  did  not 
design  to  trespass  long  upon  the  attention  of  the 
committee,  and  then  to  go  on,  passing  from 
point  to  point,  with  a  Word  only  on  each,  and 
then  some  general  remarks  on  the  question,  until 
they  had  inflicted  very  long  speeches  upon  the 
body.  He  (Mr.  R  )  did  not  propose  to  make  any 
excuses  ;  he  only  promised  not  to  speak  more 
than  fifteen  minutes,  perhaps  not  that.  Nor  did 
he  mean  to  pursue  an  argument  that  had  been 
several  days  ago  exhausted — though  he  might  say 
not  without  one  good  result.  Gentlemen  had 
taken  their  positions  here  as  to  reform,  and  we 
should  know  where  to  fi-id  them  hereafter.  And 
when  he  saw  so  many  men  of  talent  and  experience 
in  legislation,  avow  themselves  so  strongly  and 
decidedly  in  favor  of  a  reform,  like  this,  which 
so  far  as  his  knowledge  extended  had  never  been 
agitated  among  the  people,  he  was  assured  that 
when  they  come  to  consider  the  great  questions  of 
reform  which  the  people  had  sent  them  there  to 
consider,  he  should  find  them  with  him  on  those 
subjects.  He  made  these  remarks  for  the  pur- 
pose of  showing  that  at  the  commencement  of 
this  discussion,  upon  this  question  was  made  to 
turn  the  one  as  to  whether  the  Convention  would 
make  any  reform  at  all.  That  those  who  went 
for  striking  out  the  obnoxious  provision  might 
be  calculated  on  for  other  reforms,  and  those  who 
opposed  it,  as  being  opposed  to  other  reforms. — 
He  considered  it  in  a  different  light.  He  believed 
this  to  be  a  matter  purely  of  expediency,  upon 
which  members  had  not  been  at  all  instructed  by 
the  people.  Where  are  the  county  conventions 


260 


that  have  spoken  out  upon  the  subject,  or  the 
public  journal  that  has  ever  held  up  the  idea  ? — 
So  far  as  the  word  native  was  concerned,  there 
had  been  some  considerable  expression  of  opin- 
ion, and  he  should  vote  therefore  to  expunge  that 
word.  But  he  should  also  vote  to  retain  the  five 
and  the  thirty  years'  provision,  unless  something 
better  was  introduced.  He  did  not  view  that  as 
a  restriction  on  the  people,  for  if  he  did  he  should 
vote  against  it.  But  he  looked  upon  it  as  a  re- 
striction upon  the  demagogues  who  controlled  and 
made  the  party  nominations,  and  who  always  se- 
lected the  men  they  could  make  the  most  out  of. 
And  if  they  could  by  their  machinery  get  dele- 
gates to  go  for  a  younger  man,  who  might  better 
answer  their  purposes,  they  would  do  it.  And  a 
nomination,  as  all  know,  generally  carried  with  it 
the  party  vote,  for  there  were  few,  very  few  men 
who  had  the  nerve  or  the  strength  of  resolution 
and  character  to  make  head  against  a  party  no- 
mination, and  very  few  who  could  be  found  to 
sustain  a  person  in  such  a  stand  against  his  party. 
Hence  the  necessity  of  putting  in  a  guard  against 
intriguing  demagogues  controlling  the  nomina- 
tions. So  far  would  he  go,  and  no  farther  ;  and 
that  was  the  light  in  which  he  viewed  this  mat- 
ter. Many  people  had  come  to  the  conclusion 
that  this  Convention  was  doing  nothing;  but  he 
thought  that  they  were  doing  much.  He  regarded 
this  discussion  as  all-important,  as  it  indicated 
strongly  that  the  feeling  which  existed  to  strike 
out  a  clause  which  the  people  never  asked  to  have 
struck  out,  would  continue  when  we  came  to  re- 
forms which  the  people  had  demanded  beyond 
mistake.  For  himself,  though  a  friend  of  radical 
reform,  he  should  vote  for  5  and  30. 

Mr.  WORDEN  said  that  he  should  not  haveari. 
sen  but  for  some  remarks  which  he  felt  it  his  duty 
to  answer,  and  therefore  he  felt  it  to  be  his  right  to 
ask  the  indulgence  of  the  committee.  He  should 
not  undertake  to  argue  this  question,  because  from 
the  first  day  that  the  subject  was  under  discus- 
sion, he  was  satisfied  that  no  argument  sound  in 
itself  and  based  on  just  principles,  would  proba- 
bly have  any  influence  here.  This  question  was 
not  to  be  decided  altogether  by  the  force  of  argu- 
ment or  of  reason.  Mankind  have  not  yet  be- 
come so  enlightened  as  to  lose  all  the  influence  of 
education,  the  force  of  habit,  or  the  controlling 
power  of  prejudice,  and  since  the  formation  of 
this  government,  since  ils  first  inception,  both 
state  and  national,  although  there  have  been  ad- 
mitted certain  great  and  leading  fundamental 
principles  connected  with  republican  liberty,  it 
appeared  to  him  that  there  had  been  great  diffi- 
culty in  giving  them  application.  It  was  true 
that  the  great  charter  of  American  Libejty  de- 
clared all  men  to  be  free  and  equal,  and  were  en- 
dowed by  their  creator  with  certain  inalienable 
rights — these  rights  being  of  necessity,  of  them- 
selves equal,  and  no  one  possessing  higher  rights 
0(  especial  privileges  over  another.  Although 
this  great  principle  has  long  been  recognized, 
they  had  not  been  fully  and  practically  applied 
to  the  condition  of  mankind  in  this  country  We 
have  seen  in  every  form  of  government,  national 
as  well  as  state,  a  class  of  men  some  of  them 
proceeding  on  grounds  which  they  deemed  reason 
able,  who  have  denied  to  the  people  the  exercise 
of  full  equal  political  rights.  They  have  declared 


it  to  be  essential  and  necessary  in  regard  to  the 
elementary  sovereign  power  ve'sted  in  the  people 
that  it  should  be  controlled,  and  not  exercised 
by  all  and  every  man — that  there  should  bq 
some  artificial  rule  or  test  by  which  the  exer- 
cise of  that  power  must  be  determined.  And  in 
applying  this  principle  of  restriction  to  the  elec 
tive  franchise,  the  notion  prevails  that  there  must 
be  retained  in  the  machinery  of  the  organization 
of  the  government,  a  minority  or  body  to  repre. 
sent  the  aristocracy  or  landed  interests  of  the 
Country.  That  we  must  have  a  Senate — a  privi- 
leged body — to  have  for  its  constituency  the 
wealthy  and  landed  interests  of  the  country.  A 
body  permanent,  in  order  to  check  the  caprices 
or  whims  of  the  people  So  in  regard  to  the  elec- 
tive franchise  ;  it  was  long  an  idea  in  this  State 
that  all  men  are  not  to  be  permitted  to  enjoy  that 
right — that  its  exercise  must  depend  on  one  of 
these  accidental  circumstances — that  a  man  roust 
be  the  owner  of  a  certain  piece  of  land  before  he 
could  exercise  the  right  to  vote  for  a  Senator. — 
That  rule  has  been  abolished,  yet  men  have  not 
given  up  willingly  or  without  reluctance  the  prin- 
ciple upon  which  that  idea  was  based.  They 
have  not  given  up  the  idea  that  these  old  re- 
strictions were  without  foundation  or  without 
right.  These  old  habits  and  prejudices  still 
clin-?  to  them,  and  they  have  brought  them  here, 
and  the  very  arguments  that  are  put  forth  here, 
are  the  very  arguments  that  ever  will  and  ever 
have  been  put  forth  for  restrictions  on  popu- 
lar liberty.  It  is  the  last  strangling  effort  of 
dying  old  Federalism  that  we  were  witnessing  on 
this  floor,  for  incorporating  into  the  constitution 
this  exploded  restrictive  principle  as  to  the  exercise 
of  the  popular  power.  Not  one  gentleman  who 
has  spoken  here  in  favor  of  these  restrictions,  has 
made  an  argument  that  would  not  be  refuted  in 
any  common  school  house  in  any  common  school 
district  in  the  land.  Nothing  even  approaching 
the  dignity  of  an  argument  had  been  put  forth  in 
that  quarter,  or  in  support  of  the  principle 
sought  to  be  retained  in  the  Constitution. — 
And  it  was  not  to  he  decided  upon  that  ground — 
but  upon  these  old  prejudices.  His  friend  from 
Essex,  (Mr.  SIMMONS)  the  other  day  argued 
gravely  that  we  must  have  these  restrictions,  be- 
cause some  "  raw  boy"  might  be  elected — (he, 
Mr.  W.  wondered  he  did  not  say  a  "  raw  Jona- 
than") and  be  thrust  into  the  Executive  chair. 
That  was  the  argument  on  one  day,  put  forth  bv 
the  gentleman,  as  if  it  was  to  have  weight 
with  sensible  men,  with  himself.  What  did  we 
hear  then  from  him  on  the  next  day.  It  was  then 
urged  that  these  raw  boys  should  be  placed  under 
these  restrictions,  lest  the  educated  young  men  of 
our  colleges  should  force  themselves  into  the  of- 
fice. His  friend,when  he  had  a  cause  in  hand,  nev- 
er involved  himself  in  these  absurdities.  He  has  aj- 
gyed  more  from  his  prejudices  and  education,  his 
old  thoughts  and  habits,  than  from  principle. — 
And  the  gentleman  from  Chautauque,  ( Mr. 
MARVIN,)  had  said  that  this  restriction  must 
be  inserted  in  the  Constitution  by  us,  or  else 
forsooth,  the  President  of  the  United  States,  if  he 
had  a  boy,  might  send  that  boy  into  this  State ;  and 
by  the  aid  of  the  great  Executive  influence  and 
patronage,  he  would  cause  that  boy  to  be  elected 
governor  of  New- York,  and  in  this  way  he  could 


261 


rt  the  liberties  of  the  people  of  this  state. — 
And  this  kind  of  argument  is  presented  to  a  grave 
and  deliberate  body  of  men,assembled  here  to  form 
a  Constitution  for  2,000,000  of  intelligent  people ! 
And  yet  the  members  here  sit  and  listen  to  it  as 
if  it  was  potent  and  convincing.  And  gentlemen 
go  on  to  say  that  we  must  put  these  restric- 
tions into  the  Constitution,  or  else  an  improper 
man  will  be  elected.  But  how  is  it  with  regard  to 
the  various  other  officers  of  the  State  ?  Have  they 
proposed  to  apply  this  rule  to  anyot  the  other  officers 
of  the  government  of  this  state?  Have  they  said  any 
thing  about  whether  a  Judge  of  the  Supreme  court 
or  a  chancellor  (and  they  have  more  than  twice 
the  power  over  the  interests  and  the  welfare  of 
the  people  that  the  Governor  has)  shall  be  over 
or  under  thirty  years  of  age.  Oh,  no.  You  pro- 
pose thus  to  restrict  the  Governor,  but  you  never 
propose  any  sort  of  restriction  upon  the  Lt.  Gov- 
ernor. Until  the  gentleman  from  Saratoga  was 
inclosed  in  an  absurdity,  nothing  of  ihe  kind  had 
been  said  in  regard  to  the  Lt.  Governor.  And  vet 
the  very  next  day  atter  his  election,  he  may  be 
installed  into  all  the  powers  and  duties  of  the 
Governor  without  having  a  single  one  of  these 
qualifications.  Nor  have  you  guarded  against  the 
incompetency  which  may  arise  from  putting  a 
man  who  is  too  old  theie;  you  restrict  as  to  youth 
whilst  you  would  leave  men  to  be  eligible,  and 
place  them  in  the  gubernatorial  chair,  who  had 
none  of  their  former  powers  to  enable  them  to  dis- 
charge the  duties  of  the  office.  But  he  (Mr.  W.) 
had  wandered  somewhat  trom  the  course  he  had 
prepare  1  to  follow.  He  had  not  intended  to  go 
into  an  argument  upon  this  question.  He  had 
proposed  mainly  'to  answer  some — some — he  knew 
not  what  to  call  them — "remarks"  that  fell  trom 
the  gentleman  from  Saratoga  (Mr.  PORTER)  and 
he  did  not  know  but  that  he  might  answer  some- 
thing that  fell  from  the  member  from  Monroe 
(Mr.  STRONG.)  The  gentlemen  from  Saratoga, 
after  commenting  on  something  that  he  had  said,  in 
answer  to  what  fell  from  another  gentleman,  un- 
dertook to  read  him  (Mr.  W.)  a  lecture;  and  to 
inform  him  that  "  gentlemen  who  mounted  hob- 
bies were  very  likely  to  be  thrown."  Now,  he 
could  tell  that  young  gentleman — 

Mr.  PORTER  said  that  he  had  made  no  appli- 
cation oi  that  remark  to  the  gentleman  from  On. 
lario,  but  expressly  stated  that  the  gentleman  had 
argued  the  question  with  ability,  fairness,  and  li- 
berality. 

Mr.  WORDEN  knew  the  gentleman  made  such 
a  remark  ;  but  after  reviewing  what  he  called  his 
argument,  the  gentleman  proceeded,  in  the  con- 
clusion of  his  remarks,  to  warn  gentlemen  against 
riding  popular  hobbies  j  evidently  making  the  ap 
plication  general. 

Mr.  PORTER  said  that  if  the  gentleman  insisted 
on  having  the  remark  bear  that  application,  he 
had  no  objection  ;  but  if  he  desired  to  know  the 
truth,  he  repeated  that  his  remarks  followed  a 
reference  to  an  argument  which  he  distinctly  stated 
was  not  used  by  the  gentleman  from  Ontario. 

Mr.  WORDEN  presumed  the  gentleman  did  not 
understand  precisely  what  he  meant  himself.  It 
was  very  apparent  to  whom  the  gentleman's  re 
marks  applied,  even  if  he  did  not  understand  their 
application.  But  he  (Mr.  W.)  would  say  to  the 
young  gentleman  from  Saratoga,  that  he  had  not 


been  in  the  habit  of  riding  hobbies,  neither  did  he 
know  how  to  manage  them.  He  had  known  but 
one  way  to  public  favor  or  consideration,  either  in 
public  or  private  life;  and  from  the  rematks  and 
manner  of  the  gentleman  from  Saratoga,  it  might 
not  be  useless  or  uncharitable  to  advise  him  what 
that  way  was.  And  from  the  exhibition  the  young 
gentleman  had  made,  Mr.  W.  thought  it  might  be 
well  for  him,  in  the  outset  of  his  career,  to  turn 
his  attention  to  it.  The  only  way  Mr.  W  knew 
of  to  public  or  private  distinction,  was  by  a  high, 
minded,  honorable,  and  ingenious  course  of  con- 
duct, in  public  and  in  private  life  If  by  pursuing 
that  course  heretofore,  Mr  W.  had  secured  the 
esteem  of  his  fellow  citizens,  he  was  grateful  for 
it.  If  the  continuance  of  that  course  should  se- 
cure to  him  any  greater  amount  of  that  esteem,  he 
should  be  equally  grateful.  But  he  should  neither 
mount  hobbies  nor  be  deferred  from  advocating, 
here  or  elsewhere,  eVery  principle  which  he 
deemed  souml  or  just  in  itself,  whatever  impres- 
sion that  course  might  make  on  the  public  mind, 
whether  favorable  or  unfavorable.  Nor  should  he 
be  influenced  in  any  way  by  the  estimation  of  the 
gentleman  from  Saratoga,  as  to  his  conduct  or  opin- 
ions. Mr.  W  would  say,  in  conclusion,  to  the 
gentleman  from  Saratoga,  that  he  had  mistaken 
his  position  and  his  powers,  when  he  undertook 
to  read  him  lectures.  And  that  it  would  be  the 
wiser  course  for  him  to  pursue  hereafter,  or  at  least 
until  he  had  secured  some  position  in  the  world, 
to  criticise  his  own  conduct  and  motives,  rather 
than  the  conduct  and  motives  of  others.  Mr.  W. 
said  it  had  been  his  duty  before  to  stand  up  thei  e  and 
advocate  measures  and  principles  contrary  to  the 
public  sentiment  of  the  day.  He  did  not  there, 
and  should  not  here,  flinch  from  his  duty,  or  what 
he  thought  his  duty.  He  nad  had  sharp  political 
contests  on  that  floor  with  gentlemen  who  now 
occupied  seats  there,  and  the  honorable  chairman 
(Mr.  CHATFIELD)  and  his  honorable  friend  from 
Onondaga,  (Mr.  TAYLOR,)  and  with  both  the  gen- 
tlemen from  St.  Lawrence,  (Messrs.  PERKINS  and 
RUSSELL,)  those  contests  had  been  carried  on  with 
something  of  the  heat  and  asperity  of  political 
controversy ;  but  it  had  never  been  his  fortune 
until  now,  even  from  his  political  opponents,  to 
have  his  motives  aspersed  or  his  arguments  im- 
pugned by  the  charge  that  they  were  intended  to 
affect  political  objects,  or  to  gain  popular  ap- 
plause. And  never  were  they  so  ungentlemanly, 
he  would  not  say  base,  as  to  charge  him  with  sel- 
fish purposes.  That  had  been  reserved  for  the  gen- 
tleman from  Saratoga  and  the  gentleman  from 
Momoe.  The  latter  had  in  broad  and  most  of- 
tensive  terms,  chirged  him  with  having  in  view 
a  high  and  honorable  office,  and  that  his  argu- 
ments on  this  subject  were  the  result  of  selfish 
and  ambitious  views  If  such  a  charge  had  been 
made  bv  one  who  had  the  right  to  lay  claim  to 
the  character  of  a  gentleman,  or  if  it  had  fallen 
from  a  high-minded  and  honorable  man,  he  (Mr. 
W.)  would  have  felt  the  force  of  the  rebuke.  If  it 
had  come  from  one  who  had  never  set  his  sail  for 
t  he  popular  breeze  blow  from  what  quarter  it  might, 
who  had  never  pandered  to  popular  prejudice,  he 
^Mr.  W.)  might  have  mistrusted  that  in  some  un- 
guarded moment  he  might  have  rendered  himself 
obnoxious  to  the  charge.  If  it  had  fallen  from  a 
man  who  had  never  stooped  to  a  low  and  vulgar 


262 


popular  delusion,  he  (Mr.  W.,)  should  have  been 
apprehensive   he    was  liable   to  the  aspersion. — 
And  so  also  had  they  fallen  from  a  man  who   had 
never  even  on    that  floor    appealed  to  higher  mo- 
tives than  such  prejudices  as  he   supposed  rested 
in  the  bosoms   of  members  here — v\ho  had  never 
endeavored  to  array  the  lay  members  against  those 
of  the  legal  and  other  professions— he  might  have 
been  apprehensive  that  he  had  unconsciously  been 
guilty  oi  some  gross  impropriety;  but  when  he  COR- 
sidered  from  whence  the  insinuation  proceeded,  he 
doubted  whether  proper  self  respect  jus  tifiecihim 
in  taking  the  least  notice  ot  it.     He  would,   how- 
ever, say  both  to  the  gentlemen  from  Saratoga  and 
Monroe,  that   he  did'not  believe  it  necessary  tor 
him,  at  this  day,  to  undertake  to  speak  merely  with 
a  view  to  popular  favor      He  trusted  he  had  been 
too  long  before  his  constituents,  and  too  long  in  the 
discharge  ot  public  duty,  to  make  it    necessary, 
even  if  he  desired  the  honor  which  they  charged 
him  with  aspiring  to,  to  undertake  to  speak  disin- 
genuously  or  contrary  to  his  own  convictions  of 
right   and  wrong  any  where.     But  he  could  tell 
both    gentlemen,    what    neither   of  them  would 
say  in  his  place — that  he  knew  ot'no  political  office 
that  the  people  of  the  state  could  confer  on  him, thai 
he  would  accept.  His  political  life  wasc-nded  with 
this  Convention,  so  far  as  his  present  and  firm  pur- 
pose was  concerned— and  he  knew  of  no  consider- 
ation, ot    no   contingency  that   could  arise,   thai 
would  ever  induce  him  again  to  take  a  public  po- 
litical station.     Mr.  W.   did   not  say  this  here  for 
the  first  time.     There  were  those  among  the  con- 
stituents  of   the  gentleman    from    Monroe,  who 
knew  and  had  the  evidence  of  this,  his  firm  deter 
mination  in  regard  to  this  matter.     A  word  as   t< 
another   argument  of    the  gentleman    from  Sara 
toga,   who    found    (ault    with    him    because    he 
said    he    would    have  been  content  to  have    le 
this  section  stand,    as  it    probably   would,    after 
the  vote  on  the    proposi'ion    of    the    gentleman 
from  St.  Lawrence  had    been  taken.      And    the 
gentleman    read    him    a    lecture,    and    thankee 
God    that    he  (Mr.  P.)  would    never   be    guiltv 
ot    the    absurdity    of    allowing    a    provision    t 
stand    which    he    thought  objectionable.      Wh 
then  did  the  gentleman  assent  to  this  report — 
yes  and  sign   his   name   to   it — which  contains 
a  provision  that  he   now  moved  to  strike  out 
Why  did  he  report  this  provision  ?    Was  it  hi 
intention  to  commit  a  fraud  on  this  body — to  pas 
through  it  a  provision  which  he  did  not  himsel 
approve  ?    Why  did  he  move  to  strike   out  th< 
word  native,  after  approving  it  by  signing  the  re 
port?    -Where  was  the  gentleman's  consistency 
Nay,  where  is  his  boasted  integrity  in   this  re 
spect  ?    He  either  undertook  to  palm  off  on  thi 
body  a  clause  which  he   did  not  approve,  or  t 
smuggle  into  the  constitution  a  provision  wMcl 
he  clung  to  and  hoped  might  pass  without  com 
ment  or  observation.     The  gentleman  might  tak 
either  horn  of  the  dilemma  that  he  thought  pro 
per.     But  Mr.   W.  hoped  the  gentleman  woul 
consider  this  before  undertaking  to  read  him  an 
other  lecture  on  consistency.     Mr  W.  was  alto 
gether  not  indebted  to   the  gentleman  from  Mon 
roe  or  Saratoga  for  these  imputations  on  his  mo 
tives.     The  gentleman  from  Orleans   (Mr.  PEN 
NIMAN)  branched  out  on  this  subject  yesterday — 
charging  him  and  all  others  on  his  side  of  th 


uestion,  with  speaking  for  and  courting  popular 
ivor.     Mr.   W.  would  do  the  gentleman  from 
rleans  the  justice  to  say  that  he  did  not  fall  into 
lat  error  himself,  and  the  reason  for  it  was  easily 
und ;   he  (Mr.  W.)   had  just  been   reading  his 
ng  speech  of  yesterday  and  he  found  it  was  made 
p,  with   the   excption   oef  some   five  lines,  of 
raises  of  himself,  [laughter,]   and  consequently 
icre  was  no  room  for  any  praises  of  the  "  dear 
eople."     [Laughter.]     He   had  given  us  in  his 
Deech  a  schedule  of  his  own  good  qualities — his 
igh  political  attainments  and  his  peculiar  fitness 
or  his  position  here.     Having  taken   on  himself 
lat  labor,  it  was  not  to  be  wondered  at  that  he 
id  not  allude  to  the  "  dear  people."     He    appa- 
ently  took  too  much  pleasure  in  lauding  himself 
o  allow  him  even  to  praise  his  own  constituents. 
Ir.  W.  regretted  that  this  debate  had  extended 
ius  far.     He  regretted  the  character  of  the  de- 
ate  itself.     It  had  unnecessarily  and  unprofita- 
ly  consumed  the  time   of  the   Convention,  and 
,vas  well  calculated  to  give  an  impression  to  the 
mblic  unfavorable  to   a  propitious   or   fortunate 
esult  to  our  deliberations.    It  had  served  already 
o  create  the  belief  that  we  were  frittering  away 
he  time — he  would  not  say  with  senseless  decla- 
mation— but  with  arguments   and  positions  that 
arry  with  them  their  own  want  of  force  and  ap- 
ilication.     But  he  hoped  that  the  time  wasted  in 
his  debate,  the  personalities  it  had  engendered, 
svould  induce  the  Convention  to  pause  and  reflect, 
md  go  to  the  consideration  of  the  great  business 
Before  us  with  calmness  and  a  proper  sense  of  our 
esponsibilities  to  the  present  and  to  future  gen- 
erations.     That  they  would  go  on  and  frame  a 
Constitution  under  which   millions  now  living 
are  to  enjoy  the  best  fruits  of  freedom ;  and  which 
shall  confer  in  its  future  operation  untold  bles- 
sings upon  millions  yet  unborn. 

Mr.  STRONG  said  that  the  gentlemanj  from 
Ontario  (Mr.  WORDEN)  seemed  to  have  lost  his  ba- 
.ance  ;  he  had  made  a  very  strong  attack  on  him, 
Mr.  STRONG)  and  charged  him  with  having 
abused  him  (WORDEN)  in  an  improper  manner. 
Now  he  (Mr.  STRONG)  felt  sorry  for  it  if  what 
he  had  said,  had  ever  hurt  his  (Mr.  WORDEN'S) 
feelings.  He  was  very  sorry,  too,  that  if,  as  was 
the  report  that  the  gentleman  from  Ontario  had 
ever  had  an  eye  on  the  Governorship,  what  he 
(Mr.  STRONG)  had  said  should  be  the  means  of 
taking  him  off  the  track.  [Laughter.]  Now  he 
had  certainly  heard  that  the  gentleman  fron  On- 
tario was  a  prominent  candidate,  for  the  office  of 
Governor ;  he  had  heard  of  it  at  home,  before  he 
started,  and  he  had  heard  of  it  since  he  had  been 
here  ;  why,  it  was  regularly  spoken  of  in  the  Le- 
gislature last  winter.  Now  he  was  sorry  if  his 
speech  had  crushed  such  high  born  hopes.  And 
he  had  a  word  to  say  about  the  language  which 
the  gentleman  from  Ontario  used  towards  him  in 
this  debate.  He  had  the  politeness  for  to  call  the 
gentleman  from  Saratoga  a  "  gentleman,"  and  he 
only  called  me  a  "member"  (much  laughter.)— 
But,  sir,  it  is  better  after  all,  that  I  should  bear 
that  than  that  he  should  lose  his  manners.  And  as 
to  the  abuse  which  the  gentleman  from  Ontario, 
(Mr.  WORDEN)  thought  proper  to  pour  on  to  him, 
why  he  did  not  mind  it  a  bit ;  it  did  not  trouble 
him,  not  in  the  least — he  did  not  regard  it  at  all;  be- 
cause nothing  that  that  gentleman  could  say  about 


263 


him — or  do — would  give  him  any  less  opinion  of 
that  gentleman,  (Laughter.).  Because  he  knew 
that  that  gentleman  did  not  mean  any  thing  by  all 
that  abuse  which  he  said  about  him;  and  he 
thought  it  was  best  to  let  that  gentleman  go  on  and 
get  through  with  all  he  had  got  to  say ;  because  he 
knew  when  that  gentleman  had  got  through  with 
his  speech  that  he  would  feel  a  good  deal  better. 
(Laughter.)  But  that  gentleman  had  made  one 
serious  charge  against  him,  (Mr.  STRONG)  that  he 
must  say  a  word  about.  That  gentleman  had 
charged  him  with  what  he  called  a  crime — that 
of  arraying  the  lay  members  of  this  house  against 
the  profession ;  or  of  having  done  so  in  the  legis- 
lature. Now  he  had  never  done  any  such  thing. 
It  was  true  that  when  the  people  in  1840, 
came  and  declared  it  to  be  their  will  to  have 
the  large  fees-  of  lawyers  reduced,  that  he 
did  all  that  he  could  to  get  a  bill  passed  agreea- 
ble to  the  people's  wishes ;  and  if  that  was  ar- 
raying the  lay  members  against  the  profession, 
then  he  had  done  so,  in  carrying  out  the  will  of 
the  people.  And  in  1841,  and  again  in  1843, 
when  the  profession  had  tried  to  get  the  fees 
raised  up  again  to  the  high  notch  that  they  were 
before,  then  the  people  had  declared  against  it — 
and  he  had,  both  of  these  times,  helped  to  carry 
out  the  will  of  the  people.  And  if  that  was  a 
crime,  for  to  carry  out  the  will  of  the  people, 
why  then  he  was  guilty  of  it,  and  was  chargeable 
with  a  crime.  But  still  he  did  not  think  that  in 
that  body  any  member  would  have  been  charg 
ed  with  committing  such  a  great  crime,  and  of 
arraying  the  lay  members  against  the  profession, 
merely  for  the  carrying  out  of  the  will  of  the 
people.  He  had  never,  purposely,  arrayed  any 
of  them  ag.'inst  each  other.  But  it  may  be  that 
when  ^hey  come  to  get  that  great  report  of  theirs 
from  that  great  committee  of  13,  which  we  hear 
so  much  about,  then  perhaps  it  will  become  ne- 
cessary to  draw  wide  and  broad  the  line — for  to 
carry  out  the  will  of  the  people  now,  in  getting 
all  their  great  legal  reforms  in  operation  that  the 
people  all  so  loudly  call  for.  And  then,  in  spite 
of  all  these  charges,  and  in  spite  of  all  these 
abuses,  and  in  spite  of  all  that  the  gentleman 
from  Ontario  (Mr.  WORDEN)  tries,  not  all  that  he 
can  say,  nor  all  that  he  can  do,  can  stop  it. 

Mr.  NICHOLAS  rose  and  expressed  his  regre 
that  he  had  to  occupy  the  time  of  the  Convention 
he  had  but  a  very  remarks  to  make  ;  and  he  woulc 
have  kept  his  seat  but  for   many  inconsistencies 
and  false  inferences   drawrn  by  members  who  dif- 
fered with  his  views  ;  these  gentlemen  have  ex- 
pressed their  entire  confidence  in  the  people  for 
self-government;  but  the  people  know  their  own 
liability  to  err  ;  and  they  have  always  desired  to 
have  checks  and  proper  restraints  put  upon  their 
actions.     And  this  has  always  been  the  case  from 
the  beginning  of  time,  and  it  always  will  be  th 
case  unto  the  end  of  time.     And  if  the  necessit, 
tor  some  restraint  exists  with  regard  to  individu- 
als, does  it  not  exist  to  a  greater  degree  with  re 
gard  to  governments  and  to  the  people  at  large 
Is  the  tendency  or  disposition  to  be  carried  awaj 
by  our  own  impulses  liable  to  be  lessened  by  the 
aggregation  of  numbers.     No,  for  the  reverse  o 
this  is  generally  the  case.     The  masses  are  more 
liable  to  err  impulsively  than  individuals.     The 
aggregation  of  numbers  increases  the  liability  to 


io  wrong  in  times  of  excitement.     The  gentle- 
men have  said  that  we  cannot  point  to  any  abuses 
hat  have  occurred  under  our   State  government 
hat  call   for   any  of  these  restrictions.     A  good 
eason  why.    There  has  been  no  opportunity  for 
he  abuses  to  occur,  on  account  of  these  very  re- 
itrictions.     No   abuse  could   occur  under  them, 
and  that  is  why  they  wished  to  retain  them.    Gen- 
lemen  pointed  to  Gov.  Tompkins  as  an  instance 
of  a  Governor  under  30  under  this  system,  who  had 
done  well ;  Gov.  Tompkins  would  have  been  72 
ears  old  had  he  lived  till  now ;  and  he  was  first 
elected  Governor  in  1806  (when  he  was  33  years 
old).     He  would  not  have   alluded   to  this,  had 
not  gentlemen  erroneously  cited  it  to  sustain  a 
principle.     His  colleague   had  said  that  argu- 
nents  would  no  longer  avail  here  ;  that  the  minds 
of  members  were  made  up.     Now,  that  was  a 
ood  argument  in  favor  of  his  side  of  the  ques- 
ton ;  the  very  fact  thus  admitted,  that  men  sent 
there  to  that  high  deliberative   body,  that  men 
occupying  a  high  position,  who  ought  to  argue 
and  reason  and  calmly  examine  this  point,  should 
ae  led  astray  by  force  of  habit,  and  by  prejudice, 
was  a  strong  argument  in  favor  of  these  restric- 
tions ;  and  he  would  ask  his  honorable  colleague 
.  WORDEN)  if  men  so  situated,  and  men  sent 
here  under  the  circumstances  surrounding  them, 
are  so  proof  against  all  fair  argument,   as   to  act 
here  now  under  prejudice   and   impulse   and  ha- 
bit, what  we  are  to  expect  from  the  great  assem- 
bled masses  of  the  community   at  large  in  times 
of  high  political  excitement  ?    This  very  fact  is  a 
most  conclusive  argument  in   favor  of  self-im- 
posed restraints  in  the  exercise  of  this  power. — 
It  had  been  wisely  said  that  to  deny  the  right  of 
the  people  to  make  these  restrictions,  is  to  deny 
to  them  one  of  their  most  valuable  possessions  I 
and  he  looked  upon  the  doctrine,  should  it  pre- 
vail, as  subversive  of  our  government ;  he  looked 
on  it  as  subversive  of  our  institutions  ;  he  looked 
on  it  as  the  first  move  towards  the  downward 
course  that  would  end  in  anarchy   and  despot- 
ism.    This   has   been   the   case   in   all   the  past 
ages    of    the    world — among    all    the    nations 
of  the  earth,  and  in  saying  this  he  meant  no  per- 
sonal imputation  or  reflection.     It  was  the  course 
which  all  tyrants  had  adopted  to  perpetuate  their 
own  despotism ;  flattering  the  people  with  false- 
hoods to  effect  their  ruin.     His  friend  from  On- 
ondaga  had  spoken  about  the  folly  of  laying  down 
rules.     He  would  ask  him  to  look  at  the   biogra- 
phy of  Gen.  Washington ;  and  he  would  there 
find  about  some  60  rules  which  that  great  man 
had  laid  down  for  his  own  self  government.  And 
yet  the  advocates  of  the  non-restriction  doctrine, 
he  supposed,  would  say  that  a  man  like   Wash- 
ington would  not  need  any  restrictions.     One  of 
his  rules  was  that  he  would  "  never  be  a  flatterer." 
Another  was  that  he  would  "  always  look  a  man 
in  the  face  when  he  was  speaking  to  him."  Now 
who  could  ever  have  supposed  it  possible  that   a 
man  like  Gen.  Washington — of  such  a  fine,noble, 
commanding  appearance,  should  ever  be  under 
the  necessity  of  so  laboring  to  overcome  his  natu- 
ral diffidence,  as  to  have  to  prescribe  a  rule  for 
his  conduct  that  he  should  always  compel  him- 
self to  look  a  man  in  the  face  when  he  was  speakj 
ing  to  him.     Or  who  that  knew  the  man,  or  has 
read  his  history,  could  ever  suppose  that  it  was 


264 


necessary  for  him  to  lay  down  a  rule  that  he  would 
avoid  that  most  foolish  of  all  modes  of  conduct,  to 
be  a  flatterer.     But  Washington  was  a  man  of  sense 
and  knew  his  own  weaknesses,  and  he  adopted 
this  plan  to  check  and  control  them.     He  would 
say  a  word  or  two  in  answer  to  the  argument  of  the 
gentleman  from  Oneida   (Mr.  KIRKL.AND)  about 
this  power  being  an  elementary  one.    He  (Mr.  N. ) 
contended  that  ttus  was  as  much  a  delegated  as  an 
elementary  power,     We  have  5UO,UOO  votes  in  the 
State;  they  make  choice   of  one   or  other  of  the 
candidates  that  are  brought  forward  for  their  sup- 
puit  by  delegates.     These  delegates  are  chosen  by 
the    voters  in  their   respective  counties.     When 
the  Convention  of  those  delegates  meets,    it  will 
always  be  found    that  its   members   have    neither 
fully  nor  recently  communicated  with  ihe  people 
so  as  to  know  their  present  wants  and  desires. — 
They  have  neither  any  intimate  knowledge  gen- 
erally of  the  qualifications  of   the  men  placed  be- 
fore them  for  their  selection;  and  when  they  meet 
although  each  has  a  voice  iu  the  matter,  yet  they 
are  controlled  by  a  few  leading  spirits,  who  have 
generally  arranged  the  whole  business  before  the 
Convention  meets.     And  therefore  this  is  not  an 
elementary  power  exercistd  by  the  people  in  their 
primary    capacity,   but    a  delegated    power,   and 
hence  the  necessity  of  proper  restrictions  on  those 
who  exercise  it.   Doubtless  in  the  course  of  events 
you  may  bring  forward   some  few  yo.ung  men  of 
high  talents   in  the  State;  but  still  as  a  general 
rule  you  do  not  expect  to  find  your  best  men  among 
the  youth  of  the  country.     You  may  occasionally 
meet  with  a  few  such  ;  but  even  in  the  history  of 
the  world  they  have    been  scarce.     True,   there 
have  been  a  few  great  warriors,  and  two  or  three 
great  statesmen  and  men  of  learning,  under  the 
age  of  30  ;   but  that  is  no  argument  against  the 
retention    of  these    restrictions;    and   gentlemen 
have  no  right  to  use  it  a*   such  here,  to  endeavor 
to  influence  members  to  do  away  with  these  re- 
strictions.     My    colleague,  (Mr.    WORDEN,)  has 
asked  me  why  we  have  imposed  no  restrictions 
as  to  the  old  men  ?    For  a  very  good  reason.    Old 
men  do  not  need  these  restrictions.     Old  mert  are 
not  flexible  enough  for  politicians,  their  opinions 
are  too  sound,  too  firm,  too  fixed  ;  they  are  rank- 
ed  among  that  class  which  trading  politicians  are 
apt  to  term  impracticable.     And  there  is  another 
reason  why  there  is  no  clause  inserted  with  a  res 
triction  as  to  age.     Old  men  are  not  liable  to  be 
selected,  or  to    serve  if  they  are  selected.     For 
they  have  generally   lest    all  iclish  for  politica' 
turmoil.     His  colleague  had  alluded  to  the  spirit  o 
old    federalism,  of  which    he  said  these  restric- 
tions were  a  relic;  but  he  (Mr.  N.)  thought  tha 
they  both  might  derive  a  valuable  lesson  from  the 
democracy  of  1798;  particularly  as  regarded  State 
rights,  with  regard  to  the  interference  of  the  ge 
neral   government,  or  of  other  States  in  the  bu 
siness  of  this  State.     He  thought  that  they  migh 
also    be    able    to    take  a  valuable    lesson    from 
the  new    Constitutions  recently  adopted  by  othe 
States,  and  the  wholesome  restrictions  which  the 
wisdom  of  the  present  day    had  thought  proper  tc 
insert  therein.     He  deeply  regretted  to  see  such 
frequent  and  apparently  studied  efforts  made  her 
to  disparage  the  piesent  Constitution.    To  be  sur 
it  is  by  no  means  perfect.     No  man  had  pretend 
ed  that  it  was.     But  (said  Mr.  N.)   it  is  as  it  is 


id  as  he  had  just  described  things  to  be  with  the 
est  cf  the  human  family  all  over  Ihe  world;  it 
as  iis  faults,  but  it  is  as  it  is;  and  in  the  main 
t  is  pretty  well  adapted  after  all  to  secure  the 
;reatest  possible  amount  of  happiness  to  thegrear. 
st  possible  number.  It  is  in  short,  a  system  of 
;overnment  under  which  there  has  been  an  un- 
taralleled  increase  to  the  population  of  the  State, 
.nd  to  its  advancement  in  all  those  arts,  and  to  all 
hose  improvements  of  the  scientific  nature,  and  to 
ts  general  prosperity.  For  his  own  part,  this 
,vas  a  point  that  he  gloried  exceedingly  in.  He 
gloried  in  the  present  Constitution.  Gentlemen 
night  disparage  it  as  much  as  they  had  a  mind  to; 
till  he  would  glory  in  it.  He  gloried  in  all  the 
American  Constitutions  which  secured  to  us  the 
iberties  for  which  our  forefathers  fought  and  bled 
during  the  American  Revolution  ;  and  also  that 
•vhich  was  got  from  the  Runnymede,  as  had 
>een  alluded  to  this  morning,  at  the  revolution  in 
England  in  1668,  in  which  John  Hampden,  and 
Tohn  Locke  and  other  kindred  spirits  figured  so 
conspicuous  and  fought  so  nobly ;  and  all  which 
las  been  brought  about  by  the  example  of  the 
American  Revolution,  And  therefore,  instead  of 
disparaging  these  Constitutions,  we  ought  to  glory 
in  the  whole  of  them.  And  we  ought  to  restore 
to  the  people  as  much  of  that  revered  and  vene- 
rated instrument,  as  it  would  admit  of;  and  there- 
"ore  he  intended  to  vote  for  the  amendment  of  the 
gentleman  from  Saratoga  (Mr.  PORTER,)  offered 
:his  morning. 

Mr.  BRUCE  said  that  every  gentleman  who 
had  risen  here  to  make  a  long  speech  had  stated 
that  he  deeply  regretted  to  be  under  the  necessi- 
ty of  consuming  the  time  of  the  Convention  ; 
(laughter,)  and  that  they  would  do  so  as  little  as 
possible ;  and  after  that  they  would  speak  nearly 
half  a  dozen  long  speeches.  So,  in  order  to  be 
in  the  fashion,  he  should  state  in  advance,  that  he 
was  not  going  to  "  consume  the  time  of  the  Con- 
vention;" (laughter,)  yet,  he  was  not  going  to 
make  a  speech.  Now,  it  was  very  ridiculous  to 
be  sitting  there  for  days  together  talking  upon  a 
subject  that  in  itself  was  of  no  sort  of  consequence, 
and  about  which  every  man  had  made  up  his  mind 
how  he  was  going  to  vote.  To  him  it  did  not  matter 
a  copper  which  way  the  vote  went.  He  had  made 
up  his  mind  how  he  should  vote  when  the  ques- 
tion was  first  started,  but  that  was  so  long  ago 
that  really  he  had  forgotten  how  he  intended  to 
vote.  (Laughter.)  And  he  wished  to  sit  this  out 
if  it  was  to  be  all  day,  and  by  the  time  gentlemen 
had  got  through  talking,  he  probably  might  call 
to  his  recollection  how  he  had  intended  to  vote. 
(Laughter.)  It  was  very  little  matter  what  was 
said— the  whole  discussion  was  on  two  points— 
tweedle-dum  and  tweedle-dee.  (Laughter.)  And 
it  is  a  matter  of  very  little  consequence  how  the 
matter  goes  ;  the  people  care  nothing  about  it  ; 
but  if  the  debating  is  to  be  kept  up  and  carri- 
ed on  in  this  way,  the  people  will  care,  and 
it  will  be  a  matter  of  some  consequence,  how 
the  time  of  the  Convention  is  taken  up  and 
wasted,  and  why  the  work  they  were  sent  to 
do  is  not  done.  And  if  this  discussion  is  to 
go  on  any  longer,  he  would  suggest  that  the  Repor- 
ters be  respectfully  requested  to  read  to  the  Con- 
vention the  speeches  made  by  the  members  the 
previous  day ;  for  they  were  the  same  thing  over 


265 


and  over  again  day  after  day;  and  the  whole]  The  PRESIDENT  submitted  a  memorial  that 
of  them  amounted  to  nothing  after  all.  He  had  been  sent  to  the  Convention  through  him, 
h>ped  for  Heaven's  sake  that  the  gentlemen  would  from  Burtis  ^Skidmore  of  New  York,  charging 
vote  on  this  question  some  time  or  other;  they  VVm  Paxton  Ha'llett  with  corrupt  conduct  on  as- 
had  talkt-d  an  immense  deal  about  sending  down  sessing  property — taxing  his  own  costs — acting  as 
to  the  people  a  "sound  Constitution  !"  And  God  clerk  of  the  Supreme  Court,  commissioner  on  as- 
knows,  that,  as  to  doing  that  it  would  be  impos-  sessments,  &c.,  &c. 

sible  in  the  way  they  were  going  on.    For  if  time       Mr.  TOWNSEND  thought  the  judiciary  com. 
bad  any  effect  on  an  instrument  of  that  character,   mittee  was  the  proper  reference, 
one  end  of  it  would  rot,  before  they  got  the  other       Mr.  CAMBRELENG  suggested  the  one  on  Mu- 
end  perfected  (much  laughter)   and  as   to  the  reJ  nicipal  corporations. 

strictiou  of  30- years;  why  at  the  rate  they  had  Mr.  KIRKLAND  said  this  complained  of  abuses 
been  going  on,  there  was  not  a  young  man  in  the  by  an  officer  from  the  same  appointing  power,  tax- 
State,  who  was  now  only  21  years  of  age,  who  ing  his  own  costs,  &c.  The  judiciary  committee 
would  not  be  qualified  for  the  office  of  Governor,  Was  not  the  proper  reference, 
with  this  restriction  of  thirty  years  of  age,  be/ore  Mr.  MANN  said  it  was  one  of  those  gross 
they  could  present  the  Constitution  to  the  people,  abuses  of  which  so  many  exist  in  the  cify  ;  it 
(Increased  laughter.)  Do  for  Heaven's  sake,  let  ought  to  go  to  a  committee;  the  abuses  have 
us  have  a  vote  upon  it.  been  committed  by  Hallett  through  the  Supreme 

Mr.  JVI  ANN  wished  to  make  a  few  remarks  to  Court,  who  made  him  a  commissioner.  He  thought 
explain  the  way  in  which  he  should  vote  on  this  committee  No.  14  the  proper  one. 
question.  He  did  not  intend  to  make  a  speech  Mr.  BASCOM  said  he  had  not  owed  his  ap. 
but  he  would  state  at  once,  that  he  wish-  pointment  to  himself,  but  to  the  Supreme  Court, 
€d  to  have  the  whole  section  stricken  out  ;  and  and  the  judiciary  committee  was  the  proper  one 
the  subject  referred  to  committee  No  4,  to  whom  to  enquire  into  the  abuses  arising  under  this  mode 
the  consideration  properly  belonged.as  he  consider-  Of  appointment 

ed  committee  No.  5  had  not  of  right  any  power  to  Mr.  WARD  would  ask  how  far  we  were  author- 
report  on  the  subject.  ised  to  enquire  into  a  matter  of  this  kind.  Here 
Loud  cries  of  "  Question — question  !"  A  mo-  Was  a  charge  against  a  public  officer;  was  it  proper 
tion  that  the  committee  rise  was  voted  down.  I  to  receive  a  communication  of  this  nature  reflect- 
Mr.  MORRIS  wished  to  say  but  a  very  few  words  jng  On  the  character  of  a  public  officer  with  whom 
in  explanation  of  some  points  that  had  been  rais-  We  have  nothing  to  do;  and  whom  we  cannot 
ed  during  this  discussion.  It  was  very  evident  remove  ?  What  has  the  Convention  to  do  with  it? 
that  the  committee  No.  5  had  transcended  their  To  entertain  it  will  be  to  give  encouragement  to 
authority  in  reporting  at  all  on  the  qualifications  charges  of  a  like  nature,  or  even  graver  against 
for  the  cand  date  for  the  office  of  Governor ;  and  other  persons,  when  there  were  proper  tribunals 
also  that  they  had  evidently  transcended  their  au-  before  which  they  could  be  arraigned,  if  they  had 
thority  in  reporting  upon  the  veto  power  in  con-  done  wrong, 
nection  with  the  action  of  the  Legislature  con-  Mr.  TAGGART  differed  with  the  gentleman. 

trolling  the  same;  and  he  would  state 1  We  ought  to  enquire  into  this  and  all  other  abuses; 

Mr.  O'CONOR  hoped  the  gentleman  would  give  lo  see  if  an  officer  can  thus  hold  two  or  three  of- 
way  that  he  might  renew  the  motion  to  rise.  Sev-  aces,  from  the  same  appointing  power,  and  thus 
eral  gentlemen  wished  yet  to  speak  on  this  ques-  practice  gross  abuses  without  any  one  to  check 
tion;  and  he  hoped  they  would  not  pass  a  vote  on  him;  to  impose  assessments — act  as  a  Commission- 
it  to-da>.  er — then  tax  his  own  costs — and  sit  in  judgment 
Mr.  TOWNSEND  hoped  that  if  his  colleague  on  his  acts.  It  was  high  time  to  take  cognizance 
(Mr.  MORRIS)  was  only  going  to  occupy  about  Of  sucn  abuses. 

15  minutes,  that  the  convention  would  sit  it  out       Mr.  WARD  said  at  any  rate  he  wanted  time  to 

and  lake  a  vote  on  the  question  to-day.  enquire  into  the  truth  or  falsehood  of  the  charges; 

Cries  of  "  Committee  rise  !"  and  to  examine  into  this  whole  matter.     For  that 

Mr.  LOOMIS  honed  that  the  Chairman  of  the  reason  he  would  move  to  lay  the  communication 

committee   would   be   allowed    the   privilege  of  on  the  table. 

making  the  remarks  he  desired  to  submit.  The  motion  to  lay  it  on  the  table  was  then  put, 

Mr.  CHATFIELD,  in  the  Chair,  said  that  he  with  the  following  vote— ayes  38,  noes  26. 
wished  to  mak«  some  observations  on  this  ques-       The  PRESIDENT:     There  is  no  quorum  vot- 
tion  himself.  ing. 

And  then,  in  consideration  of  this,  the  motion       A  second  count  was  had,  and  resulted  ayes  50, 
:hat  the  committee  rise  was  carried.  noes  32.     It  was  carried. 

rose,  reported  progress,  and  Mr.  TOWNSEND  hoped  that  as  the  gentleman 
wished  it  to  be  examined  that  he  would  not  ob- 
ject to  have  it  printed.  He  moved  that  it  be 
printed.  The  motion  was  rejected. 


The  committee 
obtained  leave  to  sit  again. 

The  Convention  then  adjourned. 


FRIDAY,  (32nd  day)  July  10 

Prayer  by  Rev.  Mr.  HARRINGTON. 

Mr.  HUNT  presented  a  petition  from  the  cen- 
tral committee  of  the  National  Reform  Associa 
tion  of  the  city  of  New  York,  relative  to  the  pro. 

.     „  r    i  *     .  :*: ii_  _       i  /•>  r     1 l 


APPORTIONMENT,    ELECTION    AND  TENURE  OF 
THE  LEGISLATURE. 


Mr.  W,  TAYLOR,  from  the  committee  (No.  1) 
on  the  above  subject,  presented  the  following  : 

i     The  standing  committee  on  the  apportionment,  election. 

pnety   of  limiting   the  number   of  acres  of    land  L*uree  o£offic°  and  compentation  of  the  legislature,  hav- 
that  shall  be  owed  by  any  one  person  at  any  time.   ing  considered  the  subjects  referred  to  them,  beg  leave  to 
Referred  to  the  anti-rent  committee.  '  report  the  following  proposed  amendments  to  the  consti- 


17 


266 


tution,  it  connection  with  the  sections  to  which  they  be- 
long. 

ARTICLE  FIRST. ' 

t}  1.  The  legislative  power  of  this  state  shall  be  vested  in 
a  Senate  and  Assembly. 

(j2.  The  Senate  shall  consist  of  thirty-two  members,  and 
the  senators  shall  be  chosen  for  two  years.  The  Assem- 
bly shall  consist  of  one  hundred  and  twenty-eight  mem- 
bers, who  shall  be  annually  elected. 

Substitute  the  following  for  section  five  : 
The  state  shall  be  divided  into  thirty-two  districts,  to  be 
called  senate  districts,  each  of  which  shall  choose  one 
senator.  The  districts  shall  be  numbered  from  one  to 
thirty-two  inclusive,  and  shall  be  divided  into  two  classes, 
to  be  called  the  first  and  second  class.  Numbers  1,  3,  5,  7, 
9  11  13,  15,  17,  19,  21,23,  25, 27, 29  and  31,  shall  constitute 
the  first  class  ;  and  numbers  2,  4,  6,  3,  10,  12,  14,  16,  18,  20, 
22,  24,  26,  28,  30  and  32,  shall  constitute  the  second  class. 
The  seats  of  the  Senators  first  elected  pursuant  to  this 
Constitution  of  the  first  class,  shall  be  vacated  at  the  end 
of  the  first  year,  and  of  the  second  class  at  the  end  of  the 
second  year  ;  in  order  that  sixteen  senators  shall  be  an- 
nually elected.  [The  representative  population  for  a  sin- 
gle senate  district  is  74,985.] 
District  No.  1,  shall  consist  of  the  counties  of  Suffolk  and 

Queens.    58,657. 
«<        No.  2,  shall  consist  of  the  counties   of  Kings  and 

Richmond.    74,024. 

»<  No.  3,  shall  consist  of  the  first,  second,  third,fourth, 
fifth  and  sixth  wards  of  the  city  and  county  of 
New  York.  67,828. 

'•        No.  4,  shall  consist  of  the  seventh,  tenth,  thir- 
teenth, and  fourteenth  wards.    75,845. 
"        No.  5  shall  consist  of  the  eighth,  ninth  and  fifteenth 

wards.    70,020. 

"  No.  6,  shall  consist  of  the  eleventh,  twelfth,  six- 
teenth, seventeenth,  and  eighteenth  wards. 


No.  7,  shall  consist  of  the  counties  of  Westchester, 

Putnam  and  Rockland.    68,342. 
No.  8,  shall  consist  of  the  counties  of  Dutchess 

and  Columbia.    91,062. 
No.  9,  shall  consist  of  the  counties  of  Orange  and 

Sullivan.    66,840. 
No.  10,  shall  consist  of  the  counties  of  Ulster  and 

Greene.    75,900. 
No.  11,  shall  consist  of  the  counties  of  Albany  and 

Schenectady.    84,332. 
No.  12,  shall  consist  of  the  county  of  Reasselaer. 

58671 

No.  13,  shall  consist  of  the  counties  of  Washington 
and  Saratoga.    78,921. 

No.  14,  shall  consist  of  the  counties  of  Warren,  Es- 
sex, and  Clinton.    65,277. 
No.  15,  shall  consist  of  the  counties  of  St.  Law- 

rence  and  Franklin.    75,2-22. 
No.  16,  shall  consist  of  the  counties  of  Herkimer, 

Hamilton,  Fulton  and  Montgomery.    84,815. 
No.  17,  shall  consist  of  the  counties  of  Schoharie 

and  Otsego.    81,646. 
No  18,  shall  consist  of  the  counties  of  Delaware  and 

Chenango.    75,545. 
No.   19    shall  consist  of  the  county  of  Oneida. — 

78,696. 
No.  20,  shall  consist  of  the  counties  of  Madison  and 

Oswego.    86.822. 
No.  21,  shall  consist  of  the  counties  of  Jeflerson 

and  Lewis.    81,760. 
No.  22,  shall  consist  of  the  county  of  Onondaga.— 

67419 
No.  23.  shall  consist  of  the  counties   ofCortland, 

Broome  and  Tioga.    72,166. 
No.  24,  shall  consist  of  the  counties  of  Cayuga  and 

Wayne.    89.532. 
No.  25,  shall  consist  of  the  counties  of  Tompkins, 

Seneca  and  Chemung.    85,037. 
No.  26,  shall  consist  of  the  counties  of  Steuben 

and  Yates.    71,237. 
No.  27,    shall  consist   of  the  county  of  Monroe. 

63,586. 
No.  28,  shall  consist  of  the  counties  of  Orleans, 

Geneseeand  Niagara.    85.028. 
No.  29,  shall  consist  of  the  counties  of  Ontario  and 

Livingston.    72,99f. 
No.  80,  shall  consist  of  the  counties  of  Allegany 

and  Wyoming.    65,891. 
No.  31,  shall  consist  of  the  county  of  Erie.    68,672 . 


"        No.  32,  shall  consist  of  the  counties  of  Chautauquc 
and  Cattaraugus.    75.750. 

§  6.  An  enumeration  of  the  inhabitants  of  the  state  shall 
be  taken  under  the  direction  of  the  legislature,  in  the  year 
one  thousand  eight  hundred  and  fifty-Jive,  and  at  the  end 
of  ten  years  thereafter;  and  the  said  districts  shall  be  so 
altered  by  the  legislature  at  the  first  session  after  the  re- 
turn  of  every  enumeration,  that  each  Senate  district  shall 
contain,  as  nearly  as  may  be,  an  equal  number  of  inhabi- 
tants, excluding  aliens,  paupers,  and  persons  of  color  not 
taxed,  and  shall  remain  unaltered  until  the  return  of  ano- 
ther enumeration,  and  shall  at  all  times  consist  of  contig- 
uous territory;  and  no  county  shall  be  divided,  in  the  for- 
mation of  a  Senate  district,  except  such  county  shall  be  enti 
tied  to  two  or  more  senators. 

§  7.  The  members  of  the  Assembly  shall  be  apportioned 
among  the  several  counties  of  the  state,  as  nearly  as  may 
be,  according  to  the  number  ol  their  respective  inhabitants, 
excluding  aliens,  paupers,  and  persons  of  color  not  taxed, 
and  shall  be  chosen  by  districts.  The  legislature,  at  its  next 
annual  meeting,  shall  divide  the  several  coimtirs  of  the  State 
into  as  many  districts  as  each  county  respectively  is  now  by 
law  entitled  to  members  of  Jlsnembly,  to  be  called  Jlssembly 
districts;  and  shall  number  the  samt  in  each  county  entitled 
to  more  than  one  member,  from  iiumber  one,  to  the  number 
such  county  is  entitled  to,  numbers  inclusive,  each  of  which 
districts  shall  choose  one  member  of  Jlssembly.  Each  Jlsstm- 
bly  district  shall  at  all  times  contain,  as  nearly  as  may  be,  an 
equal  number  of  inhabitants,  and  shall  consist  of  contiguovt 
territory;  and  no  town  or  ward  shall  be  divided  in  the  forma- 
tion oj  an  Jlssembly  district,  except  such  town  or  ward  may 
be  entitled  to  two  or  more  members.  An  apportionment  of 
members  of  Assembly  shall  be  made  by  the  legislature  at 
its  first  session  after  the  return  of  every  enumeration;  and 
the  Jlssembly  districts  in  the  several  counties  of  the  State 
shall  be  so  altered  as  to  conform  in  number  to  the  t,aid  appor- 
tionment, and  shall  be  constituted  as  herein  before  directed; 
and  the  apportionment  and  the  districts  shall  remain  unal- 
tered, until  another  enumeration  shall  have  been  taken. — 
Every  county  heretofore  established,  and  separately  or- 
ganized, shall  always  be  entitled  to  one  member  of  the  As- 
sembly; and  no  new  county  shall  hereafter  be  erected,  un 
less  its  population  shall  entitle  it  to  a  member. 

5)9.  The  members  of  the  Legislature  shall  receive  for 
their  services  a  compensation,  to  be  ascertained  by  law, 
and  paid  out  of  the  public  treasury ;  which  compensation 
shall  not  exceed  the  sum  of.  three  dollars  per  day;  and  after 
the  year  1847,  shall  not  exceed  the  sum  of  three  dollars  per 
day,  for  the  period  of  ninety  days  from  the  commencement 
of  the  session.  When  convened  in  extra  stssion,  by  the  Go- 
vernor, they  shall  receive  such  sum  as  shall  be  fixed  for  the 
ordinary  session.  They  shall  also  receive  the  sum  of  one  dol- 
lar for  every  ten  milts  they  shall  travel,  in  going  to  and  re- 
turning from  their  place  of  mefting,  on  the  most  usual 
route.  The  Speaker  of  the  Jlssembly  shall,  in  virtue  of  hit 
office,  receive  an  additional  compensation,  equal  to  one-third 
of  his  per  diem  as  member. 

^  10.  No  member  o(  the  Legislature  shall  receive  any 
civil  appointment  within  this  State,  or  to  the  Senate  of 
the  United  States,  from  the  Governor,  the  Governor  and 
Senate,  or  from  the  Legislature,  during  the  term  for  which 
he  shall  have  been  elected. 

fc  11.  No  person  being  a  member  of  Congress,  or  holding 
any  judicial  or  military  office  under  the  United  States, 
shall  hold  a  seat  in  the  Legislature.  And,  if  any  person 
shall,  after  his  election  as  a  member  of  the  Legislature,  b« 
elected  to  Congress,  or  appointed  to  any  office,  civil  or 
military,  under  the  government  of  the  United  States,  his 
acceptance  thereof  shall  vacate  his  seat. 

Substitute  for  sections  15  and  16,  so  far  as  relates  to  Se- 
nators and  Members  of  Assembly,  the  following: 

6  15.  The  first  election  of  Senators  and  Members  of  As- 
sembly, pursuant  to  the  provisions  of  this  Constitution, 
shall  be  held  on  the  Tuesday  succeeding  the  first  Monday 
of  November  one  thousand  eight  hundred  and  forty-Severn, 
and  all  subsequent  elections  shall  be  held  on  the  Tuesday 
succeeding  the  first  Monday  of  November  in  each  year,— 
unless  otherwise  directed  by  the  Legislature.  The  Sena- 
tors and  members  of  Assembly  who  may  be  in  office  on  the 
first  day  of  January  one  thousand  eight  hundred  and  forty- 
seven,  shall  hold  their  offices  until  the  thirty-first  day  of 
December  following,  and  no  longer. 

WM.  TAYLOR  Chairman. 

Mr.  TAYLOR  said  that  it  was  proper  perhaps 
for  him  now  to  state  that  every  proposition  in  this 
report  had  been  agreed  to  by  the  vote  of  a  majori- 
ty of  the  committee.  And  that  the  whole  report 


267 


itselt  vvus  a  report  of  a  majority.'  The  minority 
had  assented  to  the  report  being  made,  reserving 
to  themselves  the  right  to  submit  their  views 
when  in  committee  of  the  whole.  Indeed  he 
would  add  that  every  individual  member  of  the 
committee  tho'  he  has  signed  it  would  feel  him- 
self  at  liberty,  after  reflection  and  discussion,  to 
vote  in  accordance  with  his  sense  of  duty,  even 
though  it  might  be  that  he  should  take  opposite 

B-ou.id  to  that  taken  by  himself  in  committee. — 
e  moved  that  the   report   be   committed   to  the 
committee  of  the  whole  and  printed,  together  with 
the  accompanying  table  of  apportionment. 

Air.  TALLMADGE  asked  if  it  would  be  a  very 
great  Ubor,  for  the  committee  to  add  to  the  sena- 
torial districts,  the  amount  of  population  which 
each  contains. 

Mr  TAYLOR  said  that  had  already  been  done. 

The  report  was  sent  to  committee  of  the  whole. 

Mr.  STOW  moved  to  print  400  additional  copies, 
as  it  was  a  very  valuable  report;  making  1200  in 
all. 

This  .was  unanimously  agreed  to,  with  the  ex- 
ception of  Mr.  PATTERSON,  who  rose  to  say 
something  when  the  president  declared  ihe  ques- 
tion carried,  and  the  gentleman  from  Chautauque 
took  his  seat  amid  some  laughter. 

AFTERNOON  SESSION. 

Mr.  CHATFIELD  offered  the  following  resolu 
tion:  , 

Resolved,  That  when  this  Convention  adjourns  it  ad- 
journ  to  meet  again  at  4  o'clock  tfiis  afternoon,  and  that 
it  will  hold  afternoon  sessions,  commencing  at  4  o'clock 
each  day,  until  the  further  order  of  the  Convention. 

Mr.  CHATFIELD  said  he  was  induced  to  offer 
this,  from  the  disposition  he  saw  yesterday  in  ma- 
ny gentleman  to  sit  out  the  debate  ;  for  his  own 
part,  his  health  would  not  allow  him  to  go  long 
past  his  regular  dinner  time.  But  he  was  wil- 
ling to  sit  after  dinner. 

Much  dissent  to  this  was  observed. 

Mr.  PATTERSON  said  he  must  move  to  lay 
this  on  the  table.  It  was  yet  too  early  for  after- 
noon sessions.  The  standing  committees  have 
not  got  through  with  their  reports ;  when  they 
had  he  was  willing  to  sit  afternoons.  His  own 
committee  were  to  meet  this  afternoon  at  half 
past  3  o'clock  ;  since  their  organization  they  had 
met  every  day  at  8  or  9 ;  adjourned  at  11 ;  gone 
into  committee  again  when  the  Convention  ad- 
journed before  2,  and  sat  till  2  o'clock;  met  again 
at  half  past  3  ;  and  sat  until  8  at 'night.  And  if 
this  resolution  was  to  be  adopted,  he  must  ask  to 
be  excused  from  serving  on  that  committee  any 
longer.  For  he  had  made  it  a  rule  of  his  public 
life,  always  to  be  present  in  every  deliberate  bo- 
dy of  which  he  had  the  honor  to  be  a  member, 
upon  every  occasion  when  there  was  a  rote  to  be 
taken.  When  all  the  committees  had  reported 
he  had  no  objections  to  vote  for  this  resolution, 
but  it  would  not  be  proper  now. 

The  resolution  was  laid  on  the  table. 

THE  TERMINATION  OF  DEBATE  IN  COMMITTEE 
OF  THE  WHOLE. 

Mr.  BAKER  called  for  the  consideration  of  his 
resolution  lo  fix  the  time  to  terminate  debate  in 
committee  of  the  whole  on  the  second  section  oi 
the  report  of  the  fifth  standing  committee,  at  15 
minutes  to  two  o'clock. 


After  some  conversation,  Mr.  WRIGHT  (of 
Erie)  moved  to  lay  the  resolution  on  the  table. 

Mr.  BERGEN  called  for  the  ayes  and  noes  on 
this. 

They  were  ordered  and  resulted  thus  : — 

AYES — Messrs.  Ayrault,  Bascom,  Bouck,Bowdish,  Bray- 
on,  Brown,  Cambreleng,  D  D.  Campbell,  Chatfield,  Clyde, 
Jonely,  Cornell,  Cuddeback,  Dana,  Dauibrth,  Dorlpn, 
Glanders,  Gebhard,  Graham,  Greene,  Hoffman,  Hotchkiss, 
Hunt,  A.  Huntington,  Kennedy,  Kirkland,  Nicholas,  Ni- 
coll,  O'Conor,  Parish,  Patterson,  Penniman,  Rhoadws, 
Kichmond,  Riker,  Ruggles,  Shaver,  Shephard,  Simmons, 
E.  Spencer,  W.R.  Spencer,  Stantjn,  Stephens,  Strong, 
Taggart,  Tallmaclge,  W.  Tuylor,  Tilden,  Tuthill,  Vache, 
Van  Schoonhoven,  Ward  Warren,  White,  Willard,  Wood, 
A.  Wright,  W.B.  Wright,  A.  W.  Young-63. 

NOES— Messrs.  Allen,  Archer.F.  F. Backus,  H.  Backus, 
Baker,  Bergen,  Bruce,  Brundage,  Bull,  Burr,  R.  Camp- 
bell, jr.  Candee,  Clark,  Cook,  Crocker,  Dubois,  Forsyth, 
Gardner,  Harrison,  Hunter,  E.  Huntington,  Jordan,  Kem- 
ble,  Kernan,  Kingsley,  Mann,  McNeil,  McNitt,  Powers, 
Russell,  Salisbury,  Sanford,  Shaw,  Sheldon,  Stetson, 
Stow,  Taft,  Townsend,  Mr.  President.— 33. 

Mr.  FORSYTH  offered  the  following  resolution: 

Resolved,  That  the  debate  in  the  committee  of  the  whole 
upon  the  second  section  oi  the  report  of  committee  No.  five, 
terminate  on  Tuesday  next  at  two  o'clock,  and  that  the 
question  be  then  taken  on  all  amendments  then  pending. 

On  the  motion  ot  Mr.  NICOLL  it  was  laid  on 
the  table. 

LITERATURE,  &c.,  FUND. 

Mr.  NICOLL  offered  the  following,  which  was 
adopted: 

Resolved,  That  the  Secretary  of  the  Regents  of  the  Uni- 
versity be  requested  to  communicate  to  this  Convention 
the  number  of  academies  participating  in  the  distribution 
of  the  public  moneys  subsequently  to  the  year  184-2,  with 
the  aggregate  amount  of  money  distributed  and  the  aggre- 
gate number  of  pupils  instructed  in  each  year,  and  that  he 
also  state  the  amount  of  money  distributed  to  the  said  aca- 
demies, or  to  any  of  them,  in  each  year,  for  the  purpose  o  f 
educating  common  school  teachers,  with  the  number  of 
pupils  so  educated  in  each. 

THE  PASSAGE  OF  BILLS. 
Mr.  W.  TAYLOR  offered  the  following,  as  the 
suggestion  of  an  eminent  legal  gentleman  of  great 
experience  in  legislation, and  desired  that  it  might 
be  considered  by  the  appropriate  committee: 

Resolved,  That  it  be  referred  to  committee  No.  two,  to 
inquire  into  the  expediency  of  providing  that  whenever  a 
bill  shall  have  been  read  for  the  third  time  in  either  house 
of  the  legislature,  no  other  business  shall  be  donp  by  the 
House  until  the  question  upon  that  bill  shall  be  decided, 
and  that  such  question  shall  not  be  reconsidered  during  the 
session;  and  also  that  every  bill,  upon  its  third  reading 
shall  be  read  in  full  and  at  length, 

Mr.  RICHMOND  suggested  that  the  resolution 
should  be  amended  so  as  to  provide  that  no  bill 
should  pass  except  by  the  vote  of  a  majority  of  all 
the  members  elected. 

Mr.  W.  TAYLOR  assented  to  such  a  modifica- 
tion— and  afterwards  consented  that  the  resolution 
should  lie  on  the  table. 

ELECTION  OF  U.  S.  SENATORS. 

Mr.  RUGGLES  offered  the  following,  and  it  was 
adopted  : 

Resolved,  That  it  be  referred  to  the  standing  committee 
No.  two,  to  enquire  into  the  expediency  of  requiring  the 
legislature  of  this  State  to  amend  the  law  for  the  election 'of 
Senators  in  Congress  in  such  manner  that  in  case  either 
House  shall  fail  to  make  a  nomination  within  ten  days  af- 
ter a  nomination  by  the  other  House,  to  fill  a  vacancy  the 
election  shall  be  made  without  further  delay  by  joint  bal- 
lot. 


268 


APPROPRIATIONS  FOR  LITERARY  PURPOSES. 

Mi.  LOOMIS  offered  the  following  and  it  wa 

adopted  : 

Resolved,  That  it  be  referred  to  the  committee  on  co] 
leges,  academies  and  common  schools  to  enquire  and  re 
port  upon  the  expediency  of  securing  by  ccnstitutiona 
provision  that  appropriations  lor  colleges,  academies  anc 
other  institutions  ot  learning  shall  be  made  on  some  jus 
principles  of  proportion,  and  forbidding  special  appropria 
tiens  to  particular  institutions,  to  the  exclusion  ol  others 
Also  to  consider  whether  the  office  of  Regent  of  the  Uni 
versity  may  not  be  dispensed  with  without  public  detri 
ment,  and  whether  the  present  mode  of  appointing  trustees 
of  such  institutions  ought  not  to  be  abolished. 

POWERS  AND  DUTIES  OF  THE  EXECUTIVE. 
The  committee  of  the  whole,  Mr.  CHATFIELD 
in  the  chair,  again  took  up  the  Article  in  relatior 
to  the  Executive  powers  and  duties. 

The  question  being  on  Mr.  W.  TAYLOR'S  sub- 
stitute for  the  second  section — providing  that  nc 
person  not  a  qualified  elector  of  this  State,  except 
as  to  residence  in  the  county  or  town,  shall  be 
eligible  lo  the  office  of  Governor, 

Mr.  MURRIS,  had  the  floor,  but  said  he   woul 
waive  his  right,  if  any   other  gentleman    desired 
to  speak.     He  undeistood  that  the  CHAIRMAN  ol 
the  committee  desired  to  speak  ? 

The  CHAIR  had  not  determined  whether  he 
sbould  speak  at  all. 

Mr.  O'CONOR  said  that  he  had  certainly 
been  misunderstood  and  he  knew  that  he 
had  been  misrepresented,  in  the  printed  re- 
port of  some  remarks  .  made  by  a  highly  re- 
spectable member  of  this  house,  and  he  there- 
ore  wished  to  say  a  few  words.  He  found  him 
self  represented  in  a  printed  report  of  some  re- 
marks made  by  a  gentleman  in  this  house  who 
certainly  deserved  to  stand  as  high  in -the  estima- 
tion of  the  members  of  this  body  as  any  other, 
with  having  put  forth  certain  doctrines  or  opin- 
ions that  he  should  suppose  no  man  in  this  house 
would  think  could  be  advocated  with  success  or 
deserve  even  the  refutation  of- a  simple  denial. 
And  it  was  from  this,  that  he  asked  leave  to  add  a 
few  words  to  what  he  had  formerly  said  on  this 
subject.  He  did  attach  great  importance  to  the 
question  before  the  committee  because  although 
it  was  practically  insignificant,  he  thought 
that  the  insertion  of  this  five  years  qualification 
or  its  rejection  involved  a  principle  vitally  con- 
nected with  a  proper  understanding  of  the  true 
nature  of  a  democratic  form  of  government.  And 
it  was  in  this  point  of  view  and  in  this  only  that  he 
regarded  the  question  as  worthy  of  investigation. 
Most  certainly  the  people  of  the  State  of  New 
York  would  never  elect  a  man  to  a  public  office 
so  important  as  that  of  governor,  who  had  not  at- 
tained the  age  of  30  years,unless  he  was  an  individ- 
ual of  most  distinguished  merit,  and  most  distin- 
guished precocity.  If  such  an  individual  should 
present- himself,  then  it  would  be  a  case  to  which 
no  rule  of  this  kind  ought  to  present  an  impedi- 
ment to  the  exercise  of  the  will  of  the  people,  in 
promoting  him  to  that  station  for  which  the  God 
who  created  him  pronounced  him  worthy.  He 
made  the  same  remark  in  relation  to  the  qualifi- 
cation of  five  years  residence.  This  was  a  mere 
arbitrary  thing.  The  worst  man  who  could  pos- 
sibly be  elected  for  this  high  office,  would  be 
most  likely  to  possess  that  paltry  insignificant 
qualification.  The  most  worthy  man  who  could 
be  selected  from  this  great  Union  to  hold  the  sta- 


tion might  be  destitute  of  it.     If  common  fame 
was  not  a  common  liar,  this  very  second  section 
owed   its  existence  to  the  influence  of  a  distin- 
guished member  of  the  Convention  which  sat  here 
m  1821,  but  whose  name  does  not  appear  as  con- 
nected  with   the   introduction  of  any  part  of  it 
That    very    distinguished    citizen   had     a    son', 
born  he  believed  in  the  city  of  New  York,  in  the 
ripe  maturity  of  vigor,  enjoying  in  the  completest 
degree,    the    coi'Sdence    of   all    classes    of  his 
fellow    citizens— eminently    qualified    for    the 
high    station  of   governor— eminently  qualified 
by    reason    of   his    intimate    relation    and    ac- 
quaintance  with    financial   matters,  by   reason  ot 
his  intimate  relation,  with  ail    the  arts  of    peace 
if  not  of  the   arts  of  war,  and  fortunately  we  had 
most  occasion  for   knowledge  of  ihe   arts  ot  peace 
in  our  government— intimately  connected  with  the 
business  of  the   State   during  his   whole  life,   and 
yet  who    for  the    last    five  and    twenty   years   he 
thought,  had  been  a  resident  of  New  Jersey,  mere- 
ly across   the   river,  but   spending  some  ten   or 
eleven  hours  of  the  24,  every  day,  and    probably 
part   of     each    Sabbath    in    the  Ciry   of    New- 
York.     He  therefore  said  it   was  a  most  insignifi 
caut  qualification  because  the  most  unworthy  are 
apt   to   possess   it,   and    the    most  worthy  likelv 
to  be    without    it.       We  had    been  told   by  some 
gentlemen  that  if  no  restrictions  were  imposed,  we 
might  elect  Gen.  Jackson,  renowned  for  ability  in 
peace  not  less  than  in  ^ar— that  Gen.  Zachary  Tay. 
lor  whose  path  of  life,  had  before  been  so  inobtru- 
sive,  that  his  name  had  scarce  reached  the  public 
ear,  and  who  but  yesterday  so  gloriously  asserted 
the  supremacy  of  the  American  arms,  and  main- 
aincd  their  honor  and  glory,  against  the  calumny 
hat  individuals  in  our  own    and  rther  climes  had 
sought     to     cast      upon      them— we     are    told 
that    but    for    some    restriction    to   confiue    the 
people,  they     might    call      to     the    station     of 
governor  a  Jackson  or  a  Taylor,  who  had  not  the 
high  qualification  of  five   years   residence.      He 
should  like  'o  know  what  evil  would  ensue,  if  the 
>eople  of  the  State  had  happened  on    some   occa- 
sion to  have  selected  the    distinguished   civilian 
)l  whom  he  spoke  just  now,  or  either  of  those  dis- 
:inguished   military  chieftains.     For  all  practical 
jnrposes  it  was  a  most  idle  qualification  to  intro- 
duce, and  a  most  idle  disqualification  to  interpose 
igainst  the   free   choice  that  the  electors   might 
make  of  a  Governor,  lo  hold  the  helm  of  State.  But 
although  it  was  practically  of  no  sort  of  importance, 
and  although  the  course  of  this  debate   had    pro- 
duced but  this  single  change  in  his  opinion   upon 
he  subject— that  we   ought   rather   to  liberalize 
he  common  law  in  relation  to  holding  office — he 
itill  thought  it  well  enough  to  adhere  to  the  com- 
non  rule  that  every  elector  should  be  eligible   to 
he  office.     He  would  rather  liberalize  the  rule — 
ather  say  that  any  citizen  ol  the  United  Stales — 
hough  he  might  not  happen  to  enjoy  the   advan- 
age  of  residing  a  single  year  within  the  State,  so 
is  to  be  eligible  to  vote  and  consequently  eligible 
o  office,  who  should  satisfy  a  majority  of  the  elec- 
ors  of  the   State,  that   he  was  fit  to  be  our  first 
magistrate,  should  be  eligible  to   hold   that   high 
ffice.     And  if  the  evil  that  should  result,  should 
e  that  on  some  occasion  a  hero  like  Jackson   or 
'aylor    should    be    called    to    be    Governor    of 
he  State,    in  God's  name   let    that    evil  come. 


269 


He  thought  that  the  Empire  State  would 
be  able  to  endure  all  the  misery  that  would 
result  from  the  operation.  The  proposition  with 
which  he  started  in  this  case,  referring  to  the  ele- 
meniary  principled  <>i 'representative  democracy — 
whose  basis  is  absolute  equality  in  all  the  mem 
bers  of  the  State — was  that  it  was  improper,  un 
wise,  and  unbecoming  in  the  people  to  impose 
these  restrictions  upon  their  free  choice.  We 
here,  acting  for  them  preparatory  to  their  final 
judgment,  ought  not  to  recommend  to  them  the 
adoption  of  such  a  restriction.  No  man  rrere,  he 
trusted  was  so  ignorant  as  not  to  know  that  we 
could  impose  no  restrictions  on  the  people,  or  so 
ignorant  as  not  to  know  that  our  action  was  per- 
fectly void  unless  the  people  ratified  it.  We  all 
know  that — and  require  not  to  be  taught  it  at  this 
late  of  day.  We  also  know,  and  no  man  could 
deny  it,  that  the  people  have  a  right  to  impose 
these  qualifications,  and  so  far  to  restrain  their 
own  free  action,  in  any  respect  that  at  a  luture 
time  a  majority  might  agree  to.  But  the  question 
was,  ought  they  to  agree  to  it.  They  ought 
if  any  good  would  result  from  it — and  it  was 
not  repugnant  to  the  true  principles  of  represen- 
tative democracy,  where  all  the  free  citizens  of  the 
Slate  are  equal.  Now  he  would  say  that  no  good 
would  result  from  it,  to  begin  with;  and  in 
the  second  place,  that  it  was  repugnant  to  the 
true  principles  of  a  democratic  State,  where 
equality  was  the  first  principle  of  government. 
It  one  part  of  the  citizens  of  the  State  were 
competent  to  hold  office,  and  another  part  were 
not,  the  electoral  body  would  be  divided  into  two 
classes — the  class  of  patricians,  who  are  compe- 
tent to  he  id  office,  and  the  class  of  plebeians  who 
are  not  competent  to  hold  office.  Was  such  a  rule, 
no  rnatier  in  how  slight  a  degree  it  might  be  in- 
troduced, consistent  with  the  principles  of  abso- 
lute  equality  among  all  the  members  of  the  State? 
He  apprehended  that  it  was  not,  and  that  we 
should  act  most  absurdly  in  introducing  a  qualifi- 
cation, so  usele.se,  and  so  insignificant  as  here 
mentioned,  for  the  mere  purpose  of  declaring  in 
the  fundamental  law  that  the  constituent  body 
was  divisible  into  two  classes — the  competent 
and  incompetent,  to  hold  the  station  of  Governor. 
This  was  his  opinion  and  not  the  idle  one  that 
was  in  print  imputed  to  him  most  singularly,  by 
a  gentleman  of  very  high  intelligence.  In  de- 
fence  of  this  proposition  against  the  remarks  ot 
a  distinguished  gentleman  from  Saratoga  (Mr. 
PORTER,)  who  as  was  well  said,  had  in  his  own 
person  furnished  the  best  evidence  of  the 
claims  of  early  youth  to  honorable  distinction, 
he  (Mr.O'C.)  had  a  word  to  say.  The  honor- 
able gentleman  was  pleased  to  say,  and  the 
honorable*  gentleman,  (Mr.  MORRIS,)  who  had 
claimed  the  privilege  of  closing  the  debate 
he  believed  intended  to  say  the  same  thing — that 
there  was  a  certain  inconsistency  in  that  doctrine, 
inasmuch  as  the  constituent  body  was  not  the  whole 
people.  That  they  themselves  acted  merely  inasort 
of  representative  position — that  they  form  but  a 
small  portion  of  the  peope.and  that  they  themselves 
represented  the  aliens,  the  Indians,  and  the  ne- 
groes, who  are  not  allowed  to  vote,  and  the 
fair  ladies  and  infants.  We  had  been  told 
that  they  not  only  represented  these,  but  unborn 
IZljllions  who  were  to  come  upon  the  stage  of  life 


after  us,  and  to  be  governed  by  the  laws  which 
we  shall  create.  All  this  was  true  in  a 
poetical  sense,  but  not  in  a  political  sense.  The 
electors  of  this  State  did  no  more  represent  all 
these  classes  of  persons,  than  did  Ihe  Emperor  o( 
Russia,  the  Sultan  of  Turkey,  or  any  other  despot, 
represent  the  people  of  his  country.  We  represent 
the  free  white  citizens  of  the  State  over  21  years 
of  age,  and  those  negroes  who  happen  to  have 
$250  -.vorth  of  real  estate.  We  did  not  represent 
the  other  classes  at  all.  We  constituted  the  poli- 
tical body,  and  wjih  us  resided  the  whole  power 
)f  government.  We  control  those  classes,  not  by 
their  choice  ;  not  by  representation,  but  by  reason 
of '.our  mental  and  physical  superiority:  either 
by  our  superiority  in  mental  power  for  the  pur- 
poses of  government,  or  by  our  mental  and  physi. 
cal  superiority  combined.  We  control  the  Indians 
because  they  are  fewer  in  nun.ber — the  ne- 
groes for  fhe  same  reasons — and  the  fair  ladies 
because  we  have  chosen  to  deprive  them  of 
the  right  of  representation.  We  do  not  sit  here 
as  the  representatives  of  the  Indians  upon  the  floor 
of  this  Convention;  we  had  no  evidence  of  their 
appointment.  We  did  not  represent  the  infants  ; 
none  of  them  had  selected  us  to  represent  them 
here.  Neither  did  we  represent  the  ladies.  All 
these  classes  of  persons  constituted  the  subjects  of 
government,  and  not  the  members  of  the  political 
body,  and  the  bringing  forward  of  this  argument 
served  to  show  how  entirely  the  paities  bringing 
it  forward,  misunderstand  the  nature  and  character 
of  representative  democracy.  It  might  be  injus- 
tice that  the  men  above  21  years  of  age  shmild. 
thus  grasp  and  control  all  the  powers  of  govern- 
ment, but  they  have  done  it,  and  let  gentlemen  if 
they  think  proper,  bring  in  a  resolution  to  enfran- 
chise all  these  classes,  and  then  we  could  debate 
the  question  as  to  whether  they  ought  to  take  part 
in  the  government.  All  he  had  to  say  was  that 
when  the  ladies  were  permitted  to  vote,  he  shovld 
insist  upon  the  right  of  voting  for  one  of  them  for 
Governor.  We  had  the  right  beyond  all  question 
to  recommend  this  or  any  other  measure  having  a 
restrictive  tendency,  because  we  should  not  cease 
to  be  a  republic  and  a  free  state,  though  we  should 
travel  some  distance  from  the  true  principles  of  a 
democratic  state.  We  should  still  be  a  represen- 
tative democracy,  but  so  far  as  we  introduced  in 
any  respect,  however  slight,  a  deviation  from  the 
true  principles  of  democratic  equality,  which 
maintains  that  all  citizens  shall  be  permitted  to 
participate  in  the  government  of  the  country,  so 
far,  no  matter  how  small,  do  we  deviate  from  the 
true  principles  of  represenlative  democracy. — 
Some  reference  had  been  made  to  the  bill  of  rights 
as  providing  for  all  these  persons.  It  was  intro- 
duced to  restrain  our  officers  and  agents  with  deal- 
ing unjustly,  cruelly  and  improperly  with  these 
subjects  of  the  law,  in  the  discharge  of  the  duties 
the  people  had  entrusted  to  them.  These  were 
ihe  principles  upon  which  he  based  his  argument, 
and  he  was  willing  to  stand  or  fall  by  them.  One 
single  point  further  and  he  had  done.  A  great 
deal  had  been  said  about  the  people  not  calling  for 
this  alteration.  Now  he  should  like  to  know  how 
we  were  find  out  what  the  people  had  called  for. 
Have  we  no  juri?diciion  to  examine  a  question 
presented  to  this  Convention  unless  we  could  point 
to  the  editorial  article  or  the  communication  in 


270 


some  paper  in  some  quarter  of  the  state  in  favor 
of  that  reform?  Must  he  produce  a  county  con- 
vention resolution  to  justify  his  examination  of  any 
part  of  the  Constitution  ?  Where  was  that  written 
in  the  law  ?  Why  each  one  of  us  was  responsible  for 
at  least  to  some  twenty  thousand  inhabitants,  and 
he  s'ood  here  speaking  the  voice  of  those  twenty 
thousand.  And  let  no  man  say  that  the  people  do 
not  demand  these  alterations, when  twenty  thousand 
of  them  speaking  by  the  lips  of  their  representa- 
tives, invite  you  to  the  examination,  and  to  the 
application  of  your  judgment,  before  you  permit 
it  to  stand,  or  make  any  alteration.  But  it  was 
not  true  that  the  people  had  not  complained  of 
this  second  section  and  most  strange  would  it 
have  been  had  they  not.  Why  in  1«21,  the  hon- 
orable gentleman  from  Orange,  who  has  been  fre- 
quently alluded  to,  and  sometimes  rather  erro- 
neously in  respect  to  his  history,  when  that  Con- 
stitution was  adopted,  had  just  about  attained  the 
full  age  and  ability  to  be  a  candidate  for  the  office 
of  Governor.  And  although  history  informs  him 
that  he  drew  his  first  breath  in  a  foreign  land,  yet 
he  has  never  known  any  country  but  the  free 
land  of  America.  He  was  fully  competent  to  be 
Governor  if  the  people  chose  to  elect  him — he 
was  fully  competent.  But  that  Convention  dis- 
qualified him,  and  for  five  and  twenty  years  he 
has  stood  disqualified,  although  the  negro  who 
blackened  his  boots  was  competent  to  be  elected 
to  the  office,  if  he  owned  but  $250  worth  of  wild 
land.  The  same  remark  he  might  apply  to  a 
case  of  an  old  soldier  of  the  revolutionary  war, 
who  was  wounded  in  the  battle  of  Trenton  under 
the  immortal  WASHINGTON,  and  who  at  that  very 
lime,  and  to  him  (Mr.  O'CoNOR)  exclaimed 
in  terms  .of  the  utmost  indignation  against 
this  disfranchisement.  He  was  past  all 
hope  of  being  Governor,  but  he  did  not 
like  being  disfranchised.  He  expressed  the  ut- 
most indignation  at  it.  He  was  competent  to  be 
elected  to  the  highest  office  in  the  Union — to  be 
President  of  the  United  States — to  sit  where  his 
illustrious  leader  had  first  sat— and  yet  he  was 
not  eligible  to  the  comparatively  insignificant  of- 
fice of  governor  of  this  state.  Though  his  first 
breath  had  been  drawn  in  a  foreign  land,  yet  he 
had  a  double  birth  in  the  birth  of  the  nation. — 
Twenty  years  ago,  therefore  this  second  section 
was  a  subject  of  the  deepest  indignation.  And 
this  man  had  a  right  to  be  indignant  against  it. 
He  had  a  right  to  be  indignant  at  the  most  mon- 
strous absurdity  of  declaring  him  eligible  to  sit 
in  the  seat  of  Washington,  but  not  here.  An  old 
,  man,  almost  on  the  verge  of  the  grave,  to  whom 
he  (Mr.  O'C.)  stood  in  the  nearest  relationship, 
it  was  possible  for  one  man  to  stand  to  another, 
pointed  to  that  act  at  this  time,  and  pronounced 
its  author  hostile  to  the  few  surviving  Revolu- 
tionary heroes,  who  had  left  the  old  world  to  die 
or  conquer  in  the  new.  He  would  never  be  Go- 
vernor, but  he  (Mr.  O'C.)  hoped  that  he  would 
live  long  enough,  as  he  trusted  he  would,  to  be 
qualified  for  the  station,  if  the  free  citizens  of 
the  state  should  see  fit  to  elect  him.  The 
party  in  this  state,  usually  in  a  minority  he 
granted,  but  which  embraced  the  greatest 
amount  of  wealth,  certainly, — undoubtedly  the 
greatest  amount  of  attainments  and  high  order 
of  education,  and  for  aught  he  knew  the 


most  respectable,  and  in  all  things  but  politics  the 
most  influential — that  party  duiing  the  last  five 
and  twenty  years  in  seeking  for  a  candidate,  hod 
settled  upon  a  venerable  and  distinguished  citizen 
of  the  State,  eminent  for  his  attainments  and  his 
knowledge  of  our  institutions,  but  who  under  that 
law  was  disfranchised  by  reason  of  his  foreign 
birth — and  they  were  obliged  to  give  up  the  idea 
of  naming  and  presenting  him  as  a  candidate  ft  r 
that  high  office.  He  alluded  to  an  illustrious  and 
distinguished  citizen,  whose  name  was  connected 
with  the  public  history  of  the  Union — who 
brought  eminent  talents  and  ability  to  the  aid  of 
our  country  when  they  were  greatly  needed — and 
who  helped  to  build  up  rur  national  constitution 
— who  was  the  choice  and  favorite  now,  if  they 
could  elect  a  Governor,  of  the  Conservative  part' , 
and  who  stands  at  the  head  of  the  chief  literary 
institution  in  that  city,  so  remarkable  for  her 
growth  and  importance  as  a  commercial  err.- 
porium,  and  which  he  trusted  would  become 
equally  remarkable  tor  her  literary  achieve- 
ment— that  seat  of  all  the  genius  and  enterprise — 
the  city  of  New  York.  He  alluded  to  Albert 
Gallatin,  and  he  (Mr.  O'C.)  trusted  that  lie  would 
be  blessed  with  length  of  days  sufficient  to  be- 
come qualified  for  all  offices.  Again  he  did  ex- 
claim against  this  cry  of  reverence  for  what  has 
been  written.  What  has  preceded  us  ought  to 
stand  unless  we  find  something  absolutely  mis- 
chievous in  the  workings  of  it— of  the  peo. 
pie  crying  out  against  it.  For  his  own  par', 
he  was  a  conservative.  He  was  for  the  preserva- 
tion of  every  safe-guard  of  private  right,  of  pro- 
perty, of  steadiness,  and  uniformity  in  our  laws 
and  their  administration.  But  he  was  radical  in  the 
correcting  of  all  antiquated  evils,  and  principles 
akin  to,  an-d  connected  with,  unequal  disqualifica- 
tions, and  to  the  creation  of  one  class  of  people 
above  another  in  the  State.  He  would  have  a 
free,  perfect,  representative  democracy,  where  all 
men,  who  had  any  share  in  the  government,  should 
stand  equal,  in  order  that  the  true  principles  of 
the  revolution  might  be  carried  out  to  their  full- 
est extent.  Why  should  we  reverence  this  law 
of  1821  ?  It  was  only  about  half  as  old  as  he  was 
himself,  and  he  should  be  very  sorry  to  claim  rev- 
erence for  age.  It  was  quite  a  modern  law— in- 
tended for  God  knows  what  useful  purpose.  But 
if  it  were  as  old  as  the  law  which  declares  the 
right  of  Kingly  Government  to  be  Divine,  he 
would  root  it  out  the  more  for  its  antiquity,  think- 
ing that  it  had  lived  full  long  enough.  If  it  was 
as  old  as  the  detestable  law  whose  eulogy  was  pro. 
nounced  by  the  gentleman  from  Oranse,  (Mr. 
BROWN) — that  no  man  should  go  out  of  the  coun- 
tiy  in  which  destiny  had  placed  his  birth — which 
destroyed  patriotism — and  rendered  eve"ry  land  of 
which  a  man  is  native,  his  prison,  and  of  which 
the  despot  might  well  be  called  the  jailor.  If  it 
was  as  old  as  this,  because  it  was  inconsistent  and 
incompatible  with  the  spirit  and  genius  of  our 
Government — though  there  never  might  occur  in 
a  million  of  years  an  instance  of  practical  incon. 
venience  resulting  from  it — yet  it  it  was  incon- 
sistent with  the  true  principles  of  government, 
he  would  root  it  out  and  condemn  it.  He  trusted 
in  the  good  sense  of  the  Convention,  in  its  thor- 
ough understanding  of  the  great  principles  of  go- 
vernment— that  in  making  a  fundamental  law 


271 


which  is  to  live  long  or  short  according  to  its 
soundness— to  sweep  from  the  Constitution  this 
paltry  liftle  restriction,  never  again  to  bar  the 
warrior  of  the  revolution  from  the  highest,  office 
in  the  State— and  never  again  to  occupy  eight  days 
of  the  precious  time  of  a  Convention  of  the  State 
of  New  York. 

Mr.  MORRIS  said,  that  as  there  appeared  to  be 
no  other  gentleman  who  wished  to  speak,  he 
would  himself  submit  a  few  remarks  before  this 
question  was  taken.  And  he  would  start  where 
he  started  yesterday,  for  the  purpose  of  bringing 
himself  up.  He  stated  then,  and  he  repeated 
now,  that  in  his  judgment  this  subject  of  the 
qualification  of  the  Governor  did  not  appertain  to 
committee  number  5,  and  that  that  part  of  the 
Veto  power,  as  it  is  denominated,  which  speaks  of 
the  power  of  the  Legislature  to  pass  a  law  not- 
withstanding the  veto  of  the  Governor,  also  did 
not  belong  to  the  committee  No.  5.  But,  it  was 
also  due  to  state  the  reasons  why  it  was  supposed 
by  many  that  both  of  these  subjects  did  belong  to 
committee  No.  5  and  that  they  were  right  in  pre- 
senting them  to  the  convention.  The  resolution 
under  which  the  committee  was  appointed  reier- 
red  to  them  the  consideration  of  the  election,  te- 
nure of  office,  and  compensation,  &c.,  of  the  Ex- 
ecutive. Now,  the  word  tenure,  as  it  was  fre- 
quently used,  meant  not  only  the  length  of  the 
term,  but  the  conditions  under  which  it  was  held, 
and  consequently  no  one's  judgment  would  be 
questioned  who  should  be  of  the  opinion  that  this 
matter  did  belong  to  committee  No.  5.  He  was 
of  a  different  opinion  himself,  though  the  ques- 
tion was  not  discussed  in  committee,  but  his  im- 
pressions were  that  it  was  best  to  report  it  as  it 
then  :he  purpose  of  enabling  the  Con- 

vention itself  to  dispose  of  a  subject  where  minds 
were  divided  as  to  which  committee  it  be- 
longed. In  relation  to  that  part  of  the  re- 
port, which  the  committee  had  not  yet  reached, 
and  which  referred  to  the  veto  power,  it  was  put 
in  because  of  the  difference  of  opinion  as  to 
which  committee  it  belonged,  and  that  the  ques- 
tion might  be  settled  by  the  Convention  itself. — 
There  was  a  question,  and  therefore  this  measure 
was  introduced.  This  debate  had  been  so  long 
continued,  that  gentleman  had  not  only  been  ex- 
cused in  making  corrections,  but  it  had  been  ab- 
solutely necessary  that  they  should  make  them. 
One  gentleman  has  alluded  to  another  expression, 
which  would  appear  in  the  papers  either  of  the 
evening  or  the  morning,  and  the  rest  of  the 
house  would  discuss  it,  and  turn  and  bow,  and 
gesticulate  and  emphasize  towards  this  gentle- 
man as  though  he  had  actually  used  it — when  in 
fact  the  expression  had  never  passed  his  lips. — 
Mr.  M.  said  that  he  Lad  himself  sat  still,  until  he 
was  actually  poked  out  to  make  a  speech,  con- 
vinced that  not  only  was  it  unnecessary  at  that 
time,  but  that  it  would  be  in  bad  taste.  And 
when  he  thus  rose  to  speak,  he  did  it  with  caution 
and  deliberation — because  he  knew  this  house 
better  than  did  his  colleague  (Mr.  TOWJVSEND,) 


who  supposed  that  bnly  one  man  out  of  five  could 
speak.  He  (Mr.  M.)  knew  as  soon  as  he  saw 
them  all  that  he  who  supposed  that  there  was  not 
a  man  there,  who  could  not  rise  and  fully  and 
clearly  express  his  ideas  on  any  subject,  was  not 
a  physiognomist^  and  did  not  understand  bump- 


ology.      (Laughter.)      He  therefore  spoke  with  a 
deliberation  that  he  was  not  generally  noted  for, 
n  the  few  remarks  that  he  had  made  on  that  oc- 
casion.    He   studied   and  measured    his    words, 
and    almost    weighed    his     sentences,     because 
he  knew  where  he  was,  and  also  knew  from  the 
smiling  faces  around   him,   that   "  Bob"   was   to 
take  it.     [Laughter.]     And  yet  in  the  course   of 
that  debate   (without  alluding  to   any  particular 
gentleman)  words  were  put  in  his  mouth  he  had 
never  uttered,   and  sentiments  which   had  never 
entered  his  mind.     Yet  he  sat  silent,  for  he  was 
one  who  had  lived  long  enough  to  learn  to  bide 
his  time.     Now,  he  was  charged  with  having  used 
the   words    "  checks   and  bits   upon    the    peo- 
ple," when  in  fact  he  had   never  uttered  them — 
and  no  idea  of  the  kind  had  ever  entered   his 
brain.     These  charges  were  reiterated,  and  had 
he  not  a  good  memory  and  better  principles,  he 
would   have   been   convinced  that  he  had  used 
them,  so  uniform  and  consistent  was  the  testimo- 
ny.    What  he  did  use  was  "  checks  and  guards'' 
— these  were  the  words  that  he  uttered,  and  the 
signification  of  them  he  understood — checksupon 
the  delegates,  and  guards  for   the  protection  of 
the  people.     That  was  the  meaning  of  the  words 
as  he  used  them  and  as  he  intended  to  use  them. 
Another   expression  was  used  by  a  gentleman, 
not  now  in  his  seat.     That  gentleman  turned  to- 
wards him   (Mr.  M.)   with  an  emphasis  of  look 
and  an  emphasis   of  utterance — and   said — "the 
gentleman  from  New- York   does   not  want  a  fo- 
reign Governor" — using  it  as  though  he  (Mr.  M.) 
had    made    use    of   the    expression.     And    yet 
he   had   never   used    it.      He  believed   he   had 
now   got  through   with   all   the   points   in   this 
general     explanation,    except    one.       Why    he 
was    even    put   in    print    as    having  used    the 
words  "  30  years  and  a  native."    Neither  of  them 
passed  his  lips.     He  trusted  it  was  not  the  inten- 
tion of  the  reporter  to  misrepresent  him — he  did 
not  believe  it  was.     It  might  have  grown  entirely 
out  of  an  error  in  printing — but  these  two  words 
were  put  in  his  mouth,  when  he  had  used  neither. 
And  his  whole  past  life  was  conclusive  testimony 
that  such   narrow   sentiments  were  never  enter- 
tained by  him.     But  that  was  gone;   he  believed 
he  could   not   be  injured  by  it  in   any  manner  or 
shape.     The  question   before  the  committee  was 
precisely  what  it  was  when  he  last  had  the  honor 
of  addressing  it.    Because  the  word  "  native"  and 
"  30  years"  had  been  stricken  out  when  he  then 
spoke.     And   although  the  discussion   had  since 
continued  mainly  on  these  two  qualifications,  yet 
as  he  understood  them,  they  had  been   both  set- 
tled some  time   before   he  last  had  the  honor  of 
addressing  this   committee.      He  understood  the 
section,  as   amended,  to   require   that  the  can- 
didate for  Governor   should  be   a  citizen   of  the 
State  of  New-York,  and   a  resident  of  the  State 
for  five  years.      The   proposition  now   pending, 
was   to   strike  that  out,  and  to   substitute  what 
has  been  proposed  by  the  gentleman  from  St. 
Lawrence.       Now   he    would    state    further   as 
gentlemen  seemed  to  conceive  that  there   was 
something  very  wrong   in   a  member  of  a  com- 
mittee— who   has  signed  his  name  to  a  report 
which  has  been  brought  in  here — in  his  capacity 
as  a  member  of  the  Convention  entertaining  views 
different  from  those  presented  there — that  the 


272 


chairman  of  the  committee  had  stated  before,  that 
this  report  was  only  unanimous  for  the  purpose 
of  presenting  it  to  the  Convention.    -They  were 
only  responsible   for  the  report  so  far  as  its  pre- 
sentation was  concerned.     When  he  (Mr.   M.) 
introduced    the     report,     he     expressly    stated 
and   by  the   sanction  of  his   colleagues,  that  al- 
though it  was  unanimous  yet  that  the  committee 
did  not  come  here  wedded   to  the  particular  no- 
tions that  it  presented,  and   that  they  would  not 
consider  it  any  imputation  against  them,  if  other 
views  should  be  advanced  and  adopted — and  that 
they  did  not  consider  themselves  prevented  from 
making  suggestions  also.     They  were  not  gentle- 
men  who  wished   to  come  here  bound  down  by 
any  notions  they  might  have,  before  hearing  the 
argument  here.     This  was  the   spirit  in  which 
the  report  was  brought  in  here — some  gentlemen 
approving  of  some  features  in  it  which  others  did 
not — for  the  purpose  of  bringing  the  subject  be- 
fore the   Convention.     He   had  now  come  to  the 
question  of  the  propriety  of  requiring  these  qua- 
lifications— as  to  whether  any  were  required  for 
governor  or  not.     We  are  told  by  gentlemen  that 
it  was  not  democratic  to  do  it — he  used  the  word 
in  its  broadest  signification,  not  as  a  party  nick- 
name,  for  he   did  not  believe  it  should  be  used 
here  as  such.     Gentlemen   had  said  that  it  was 
contrary  to  the  spirit  of  our  institutions  that  any 
qualification  should  be  required  of  the  candidate 
for  governor  because  it  would   be  casting  an  im- 
putation upon   the  people,  who  are   to  make  the 
selection.     Now   his    friend   and    associate  was 
right  when   he   said   that   he   (Mr.  M.)   enter- 
tained  the  idea  that  the  electors  were  not  the 
whole  body  of  the  people,  but  only  a  part  of  it. 
He  denied  that  we  came  here   only  for  the  pur- 
pose of  representing  the  electors  of  the  State  ; — 
they  had  other,  and  as  dear,  or  dearer,  interests 
than  theirs,  to   represent.     They  had  the  people 
to  represent.     The  2,500,000  of  the  people  ;  no 
merely  the  400,000  electors.     And  he  insisted  in 
assembling  here  to  frame  a  Constitution,  they  re- 
presented the  whining  infant  and  the  mother  tha1 
bore  it ;  the  male  from  infancy  to  manhood,  anc 
the  woman  from  the  cradle  to  the  grave  ;  and  al" 
human  nature,  whether  disfranchised  as  an  elec 
tor  or  not,  form  part  of  the   people  ;  and  we  are 
here  as  their  representatives — here  for  the  pro 
tection  of  those  who  have  no  means  for  the  pro 
tecting  of  their  own  rights.     They  were  there  t< 
make  a  Constitution  to  protect  those  who  had  m 
privilege   to  vote   at  all,  as  well   as  those  whi 
were  electors.      They  were   there  to   represen 
the   widow,  who    could    not  go    to   the  ballo 
box  to  deposit  a  vote  for  the  protection  of  her  in 
dividual  rights.     They  were  there  to  protect  the 
witness;  be  he  adult  or  child,  female,  negro  o 
Indian.     They  were   there  to   frame  an  organi 
law  for  the  protecti&n  of  all  these,  and  of  all  class 
es  of  society.     Each  man  who  votes,  acts  in  a  re 
presentative  capacity.     In  depositing  his  vote,  h 
acts  as  the  representative   of  some   five  or   si: 
others ;  and  therefore  it  is  that  it  becomes  neces 
sary  to  use  great  caution  as  to  whom   they   mad 
electors.     He  would  ask,  were  the  human  right 
spoken  of  in  the  Declaration  of  Independence  an 
the  less,  because  the  party  concerned  Was  an  in 
fant  ?      Is    the    individual    excluded   from    th 
full     enjoyment    of   those     human    rights    be 


ause    she    is  a  female  ?    or    because    he    is    a 
oung  man  under  21  years  of  age  ?    We   are  not 

free  democracy — pure  democracy  does  not 
well  here  !  nor  does  it  dwell  anywhere  ;  unless 
t  be  in  some  of  the  Indian  tribes.  For  in  a  pure 
emocracy  every  human  being  within  the  territory 
f  the  State  would  be  allowed  to  go  up  to  the  bal- 
ot  box  and  deposite  his  vote.  We  are  a  repre- 
entative  democracy  in  this  country ;  and  we 
ave  a  right  to  recommend  to  the  good  people  of 
ills  State  that  each  and  every  man,  woman,  and 
hild,  should  each  for  himself  possess  this  privi- 
ege.  Then  each  and  every  one  would  vote  for 
timself.  But  if  this  was  to  be  extended  to  every 
ne,  then  the  system  of  representative  democra- 
y  would  be  done  away  with.  But  for  his  own 
art,  tho'  he  would  not  recommend  this,  he  should 
ike  to  see  it  go  down  a  little  way  below  21  years 
fage,  and  he  would  like  to  see  it  extended  to 
he  widow  who  had  property  to  protect ;  who 
s  oftentimes  better  qualified  to  attend  to  her  own 
flairs  than  the  drunken  husband,  who  rendered 
limself  incapable  by  a  course  of  dissipation,. 
whilst  living,  and  died  from  the  effects  of  it. 

Mr.  BASCOM  hoped  he  did  not  intend  by  this 
o  advocate  the  insertion  of  a  property  qualifica- 
ion  on  this  point.  (A  laugh.) 

Mr.  MORRIS:  No,  he  did  not.  belong  to  that 
ribe — to  that  band  of  politicians.  But  we  are 
iere  making  qualifications;  and  yet  gentlemen 
;ay  that  it  is  an  imputation  upon  the  people  to 
luggest  them,  or  to  recommend  to  them  who  ought 
,o  be  allowed  to  vote,  and  who  not;  to  put  those 
checks  and  guards,  not  bits,  around  them  at  all. 
Very  well ;  and  yet  we  have  here  the  first  check; 
the  qualification  of  21  years  for  an  elector — then 
we  have  the  residence  in  the  state  and  county ; 
and  surely  there  was  no  one  so  ultra  democratic 
as  to  desire  to  do  away  with  these  ?  Well,  the 
qualification  required  here  for  Governor  was  only 
carrying  out  the  same  principle.  Man — lordly 
man — will  take  good  care  of  himself.  But  it  was 
necessary  to  have  these  checks  and  guards — not 
bits — for* the  protection  of  women  and  children, 
He  was  not  afraid  that  even  without  the  restric- 
tion of  age,  we  should  ever  have  too  young  a  man 
in  the  Governor's  chair  He  was  a  young 
man  himself,  and  was  enrolled  in  the  Young 
Men's  Committee.  But  he  was  much  be- 
yond that  age,  (30  years)  He  was  much  beyond 
that.  And  a  man  beyond  that  was  not  too  old  to 
learn;  unless  he  happened  to  be  one  of  those  pre- 
cocious lamps  of  learning— one  of  those  Jonah's 
o-oui-ds,  that  grow  up  in  a  night,  and  wither 
m  the  morning.  [Laughter.]  The  reason  that 
this  debate  had^been  so  extended  was,  that 
o-entlemen  considered  that  this  principle  here 
adopted  at  the  start  was  to  go  through  the 
whole  system  „  of  the  organic  law,  which 
they  had  met  to  frame.  And  it  was  evident 
that  the  necessity  of  these  restrictions  had 
been  seen  and  regarded  as  sound  doctrine.  For 
the  present  chairman  of  the  committee  of  the 
whole,  in  reporting  from  the  special  committee 
of  which  he  was  the  chairman,  had  reported  in 
favor  of  this  wise  and  salutary  principle.  He 
reported  that  there  should  be  a  State  engineer 
elected,  and  they  also  reported  certain  qualifica- 
tions in  regard  to  him  ;  he  must  have  been  a  prac- 
tical engineer  for  at  least  seven  years ;  was  not 


273 


this  imposing  restrictions  on  the  people  ?  If  they 
are  to  choose  as  they  please  with  regard  to  a  gov- 
ernor, why  not  let  them  choose  as  they  please 
with  regard  to  an  engineer  ?  Select  any 
body  at  random.  Gentlemen  say  that  we  cannot 
bind  the  people.  You  can  bind  the  engineer 
when  he  is  made,  but  you  cannot  bind  the 
aggregate  who  is  to  select  this  engineer. — 
An  engineer,  it  is  true,  may  run  your  State  down 
hill  as  well  as  up ;  and  unless  he  is  careful,  he 
may  burst  your  boiler.  They  were  very  cautious 
about  the  selecting  of  an  engineer,  but  they  cared 
little  about  the  Governor,  whose  power  was  far 
greater.  For  he  was  the  "  veriest  engineer  of 
them  all ;"  he  would  not  say  the  "  veriest  Roman 
of  them  all,"  because  some  gentlemen  might  say 
this  w*as  anti-democratic.  Now,  we  might  boast 
as  much  as  we  pleased  about  this  point,  but  still 
the  fact  is  that  the  people  do  not,  after  all,  govern 
us  ;  we  are  governed  by  the  electors,  who  control 
the  people.  It  was  uncomfortable  to  admit  this, 
but  still  it  was  the  fact.  He  was  one  of  16  from 
the  city  of  New  York,  who  represented  that  en- 
tire county;  he  considered  himself  the  sixteenth 
part  of  the  essence  of  the  people  of  the  city  and 
county  of  New  York.  (Laughter.)  If  the  peo- 
ple had  all  voted,  we  would  not  have  been 
sitting  here  as  a  Convention  at  this  time. — 
If  the  representatives  of  the  people  proper  had 
had  the  control  of  this  matter,  we  should  not  have 
been  here.  But  it  was  brought  about  by  chi- 
canery and  trickery — the  "  tickle  my  elbow  and 
I'll  tickle  your's"  system — the  political  manoeu- 
vreing  that  had  gone  through  this  whole  State, 
set  in  motion  by  men  who  were  working  solely 
for  their  own  political  aggrandizement.  That 
had  brought  that  Convention  together  there. — 
[Mr.  M.  here  stated  that  he  had  no  doubt  that 
this  subject  had  also  been  talked  over  by  the 
wives  and  daughters  of  the  State,  to  their  im- 
mediate representatives,  desiring  to  reform  all 
existing  abuses.]  He  hoped  that  all  the  neces- 
sary reforms  would  be  carefully  carried  out.  He 
was  here  as  much  the  representative  of  all  as  of 
•a  few.  He  represented  all;  aye,  even  the  con- 
vict ;  for  he  was  willing  to  admit  that  convicts 
are  represented  in  this  Convention  ;  they  were 
there  to  protect  human  nature  as  much  if  fal- 
len by  chicanery  or  misfortune,  as  if  it  had  dis- 
troyed  itself  by  intention.  But  he,  (Mr.  M.)  had 
pretty  well  run  his  rope  out;  he  could  not  say 
more  if  he  spoke  an  hour ;  some  might  think 
that  this  restriction  of  citizenship  and  5  years  re- 
sidence were  not  necessary;  he  thought  they  were; 
he  did  not  wish  to  leave  it  to  our  friends  down 
east,  or  to  our  friends  out  west,  to  come  here  and 
relieve  us  from  this  dilemma  of  ignorance  which 
an  absence  of  all  restrictions  would  seem  to  im- 
ply. He  wished  to  have  it  declared  that  the  peo- 
ple of  this  State  are  competent  to  take  care  of 
themselves ;  and  we  must  confess  ourselves  won- 
derfully lacking  in  material,  if  from  the  Atlantic 
to  the  Lakes  we  could  not  find  a  man  capable  of 
tilling  the  office  of  Governor  of  this  State.  And 
if  this  be  so,  then  strike  out  the  qualification  and 
go  to  Massachusetts  or  New  Hampshire.  (Laugh- 
ter) and  he  would  admit  that  they  did  furnish  a 
great  number  of  men —  a  great  many  very  wonder- 
tul  men  for  filling  offices.  (Laughter.)  But  he  did 
not  wish  to  declare  by  a  cognovit  at  the  start— thus 


confessing  judgment — that  we  had  to  look  beyond 
the  borders  of  our  own  State.  For  these  reasons  he 
should  vote  against  all  these  amendments,  and  in 
favor  of  the  original  section;  and  hereafter  he 
vrould  like  to  see  the  gentleman,  his  friend  from 
Saratoga,  offer  an  amendment  to  extend  the  same 
qualifications  and  restrictions  to  the  candidate  for 
Lieut.  Governor. 

Mr.  PENNIMAN  asked  indulgence  to  answer 
a  question  put  to  him  yesterday  by  Mr.  PATTER- 
SON, as  to  where  he  found  authority  to  report 
this  section  of  the  Constitution.  He  considered 
that  this  was  embraced  in  the  matter  which  had 
been  referred  to  that  commi  tee.  He  and  his 
colleagues  admitted  that  it  more  properly  belong- 
ed to  committee  No.  4,  but  that  committee  No.  5 
also  had  jurisdiction  in  the  matter.  He  had  nev- 
er heard  this  jurisdiction  denied  until  within 
three  days.  He  believed  his  colleagues  were  still 
of  the  same  opinion.  And  he  found  by  looking 
at  the  report  of  the  committee,  of  which  the  gen- 
tleman from  Otsego  (Mr.  CHATFIEI..D)  is  chair- 
man, that  that  committee  had  taken  a  similar 
view  of  the  same  question  in  principle,  for  when 
passing  upon  the  qualifications  of  State  Engineer 
they  had  exercised  this  power.  He  made  this 
explanation  in  justice  to  himself  and  others.  He 
would  repeat  that  the  committee  were  unanimous 
on  every  point  except  that  in  relation  to  the  Veto 
power,  on  which  at  the  proper  time  he  should 
have  something  to  say. 

Mr.  CHATFIELD  (having  called  Mr.  PAT- 
TERSON to  the  chair)  said,  although  during  the 
progress  of  this  debate,  he  was  free  to  confess  he 
felt  a  strong  desire  to  address  the  committee  on 
the  pending  proposition,  yet  he  was  led  from  the 
indications  this  morning  upon  the  resolution  to 
terminate  debate  at  a  quarter  to  2  o'clock,  to  con- 
clude that  it  would  not  be  expedient,  nor  in  ac- 
cordance with  the  feelings  of  the  committee,  nor 
desirable,  to  add  any  further  remarks  on  the  sub- 
ject. But  in  consequence  of  the  kindness  exten- 
ded to  him  yesterday,  when  there  was  a  manifest 
and  strong  desire  to  sit  there  till  the  question  was 
taken  upon  this  section — by  the  committee 
rising  for  the  purpose  of  enabling  him  to  ad- 
dress them  to-day — he  had  felt  it  to  be  his  duty  to 
come  down  from  the  Chair,  to  offer  an  apology 
for  not  availing  himself  of  that  kindness  so  exten- 
ded to  him.  (Cries  of  "  go  on"  from  all  parts  of 
the  house.)  He  could  not  with  any  consistency, 
n  his  judgment,  occupy  the  time  of  the  commit- 
tee at  the  present  moment  with  further  remarks  on 
the  subject  before  them,  for  he  always  felt  an  un- 
willingness to  address  any  body  of  sensible  men 
whom,  he  knew,  felt  impatient  to  get  at  the  ques- 
tion before  them,  and  who  were  unwilling  or  had 
a  disinclination  to  hear  further  debate.  It  was  an 
unpleasant  position  to  occupy,  and  he  should  be 
very  loth  to  detain  a  body  of  reluctant  hearers  ; 
therefore  he  would  allow  the  question  to  be  taken 
without  protracting  the  debate  further  with  any 
remarks  of  his.  (Cries  of  "  go  on,,"  "  go  on.") — 
[f  it  was  the  desire  of  the  committee  he  would 
yield  the  floor  and  allow  the  questitm  to  be  taken. 
^Renewed  cries  of  "  go  on.")  He  had  certainly 
desired  to  express  his  views  as  to  certain  mon- 
strous political  heresies  which  had  been  put  be- 
?ore  the  committee  during  this  debate.  He  had 
been  astonished  to  hear  it  urged  that  no  change 


274 


should  be  made  so  long  as  no  practical  evil  exist- 
ed or  had  arisen  from  the  provisions  of  the  pres- 
ent Constitution.     He  confessed  he  had  no  rever- 
ence for  existing  institutions  merely  as  such.     He 
had  there  on  th  .t  floor  as  a  member  of  that  body, 
no  reverence  for  individuals  or  for  men      He  was 
not  here    fer  that    purpose.       As   he   had  taken 
occasion  on  a    former  day  to  say,  they  stood  there 
on    the    elements    of  society,    with  the    princi- 
ples of  government  scattered  around  them,  with 
out    order,  or    arrangement,  and    they  were    in 
duty  bound, — it  was    their  business  so  to  arrange 
and  apply  them  as  to  secure  the    best  interests  of 
the  people  whom  they  represented.       He  felt  it 
his  duty  to  do  that,  without  in  any  manner  being 
tied    down  to  existing  institutions.       For  if  they 
owed  a    reverence  to  one    of  them,   they  owed  a 
reverence  to  all.     If  they  were    not  to  touch  pro- 
visions, from  a  reverence   for  existing   things— if 
they  were  averse  to  touching  them  because   there 
w.as  shown  to  be  no  existing  evils  or  because  the 
change    may  work  error,   then  they  were    there 
without  an  'errand  or   motive,  or  work  to  accom- 
plish, and  they    had  better   all  go    home  at  once. 
Now,    whenever    he  had    found   anything  in  the 
Constitution   opposed   to   the    leading  principles 
of  our    government — though    gentlemen  may  say 
that    no  practical    evil    has  arisen — he  was  just 
as  free   to  strike  if  out,  and  to  insert  a  principle, 
in  consonance   with  his   views,  as   though  it  had 
never  found  a    place  there,    and  was   i.ot  known 
in  the    Constitution.       What    is   the   length  and 
breadth  ot  the    argument  which  they   had  heard 
there  ?     Why,  if  the  spirit  or  doctrine  which  pre- 
vailed here,    had  always  existed  in  this   country, 
we  should  have  been  in  a  state  of  colonial  vassal- 
age to  this  very  day,  and  subject  to  tbemonarchi- 
al  bondage  of  the  British  crown.      Reverence  fm 
existing  things    would  have  made  them  slaves  to 
monarchial    power.       Why    were  they   here  this 
day?     We  are  here  to  day   because  the  spirit  of 
liberty,  which  is    favorable  to   change,  had  burs 
the  bands  which    bound  us  in    former    days,  anc 
recognised  a  principle  more   consistent  wiih  the 
happiness  of  man,  and  of  the   whole  human  fam- 
ily.    But  enough  on  that  subject.     He  wished  to 
answer  a  remark  of  some  gentlemen  of  this  house 
which    he   conceived    to  be  either  unjust  or   dis- 
ingenuous.    It  was  this,  viz:    that   every   gentle, 
man  who    sought  to  liberalize  the    Constitution 
and    to    strike    from    it    its    present    obnoxiou: 
provisions,    is    a     demagogue,    and     is    tickling 
the    ear  of  the    "dear    people,"    from  the  petty 
contemptible    motive    of    self- aggrandisement. — 
He  was  happy    in  having  been  placed  where  he 
heard  every  word  which  had  fallen  from  gentle- 
men in  this  debate,    and  he  could  therefore   state 
no  such  remarks  had. fallen  from  the  liberal  por- 
tion of  the   Convention.     These  illiberal  senti- 
ments came  from  the  illiberal  side  of  the  argument. 
The  charge  is  thrown  upon  us,  and  he  inferred  the 
principle  advocated  is  supposed  or   known  to  be 
sustained  by  public  sentiment.  If  so,  he  asked  how 
such  gentlemen   can   escape  the  charge  they  ap- 
ply  to   us?  Why  did   those   gentlemen  seek   to 
make  restrictions  ?  Why  did  they  seek  to  impose 
"  guards  and  bits,"   as   remarked  by   the  gentle- 
man from  New-York  (Mr.  MORRIS)?    Was  it  be- 
cause this  was  actually  in   accordance  with  pub- 
lic sentiment .?    It  they  believed  what  they  said, 


hen  he  asked  if  those  gentlemen  were  not  as 
nuch  demagogues  as  those  upon  whom  they  had 
last  the  accusation  during  this  debate  ?  But  they 
enow  this  is  repugnant  to  public  sentiment;  if 
hey  do  not,  then  they  escape  the  charge  of  being 
demagogues.  If  they  are  sincere,  they  are  dem- 
agogues as  well  as  any  of  us  so  charged.  He,  (Mr. 
^.)  had  the  right,  to  throw  back  the  imputation 
>n  them,  which,  however,  he  did  not  believe  at- 
acned  to  any  one.  He  took  a  different  view  of  it. 
3e  believed  every  gentleman  was  acting  with  a 
consciousness  of  his  own  responsibility  to  his  con- 
stituents j  and  with  the  best  of  motives,  and  the 
firmest  purpose  to  carxy  those  radical  reforms  in- 
o  full  effect,  which  the  people  so  loudly  called  for 
n  constituting  this  Convention  But  they  were 
old,  and  the  most  so,  by  the  gentleman  ffom  Es- 
sex (Mr  SIMMONS),  that  the  people  have  not  call- 
ed for  these  particular  reforms.  Now  he  asked 
hat  gentleman,  how  he  could  determine  what  in- 
fluenced the  mind  of  every  voter  when  he  voted  lor 
this  Convention?  How  can  the  gentleman  from  Es- 
sex undertake  to  say  what  influenced  his,  Mr.  C's 
vote,  and  the  voters  in  his  own  section  of  the  coun- 
try, in  favor  of  the  Convention  ?  Can  he  look  into 
the  mind  and  heart  of  his  nearest  neighbor  who  sent 
him  to  this  Convention,  or  into  those  of  the  people 
of  any  county  and  read  their  motives  in  so  doing  ? 
He  cannot,  sir.  It  might  be  that  very  different 
motives  influenced  those  in  different  sections. — 
He  denied  to  the  gentleman  from  Essex  the  right 
to  sit  in  judgment  on  his  vote ;  and  on  fllQ  mn- 


the  mo- 


tives which  influenced  his  conduct  in  voting  for 
these  great  measures  of  reform.  Again,  when 
the  charge  of  demagoguism  was  thrown  upon 
them,  he  desired  to  look  at  the  conduct  of  gentle- 
men on  the  other  side  of  this  question,  to  see  how 
they  escaped  the  imputation.  Gentlemen  had 
taken  pains  to  declare  before-hand  how  desirous, 
how  exceedingly  anxious  they  were  that  the 
word  "  native"  should  be  stricken  from  this  sec- 
tion. Why  were  gentlemen  so  particularly  anx- 
ious to  be  the  advocates  of  that  measure  ?  Why, 
if  there  was  danger  to  be  apprehended  from  any 
part  of  the  section  reported,  it  certainly  was  to 
be  apprehended  from  that  particular  portion  of  it. 
If  danger  was  to  come  from  any  quarter,  it  cer- 
tainly was  to  come  from  that.  If  the  door  was  to 
be  opened  so  wide  then  is  not  danger  to  be  appre- 
hended from  the  attempts  of  demagogues,  (as  they 
are  termed)  to  concentrate  what  is  called  the  na- 
tive vote  on  the  one  hand,  or  the  naturalized  for- 
eigner to  vote  on  the  other,  in  order  to  carry  the 
popular  feeling  of  the  people  along  with  it  ?  He 
wished  gentlemen  to  answer  that.  It  was  well 
known  to  every  one,  that  the  German  or  the  Irish 
portion  of  the  population  at  any  time  held  the 

*  *.  ,1       '  OJ._i-^      V,~4- .~  *U   ,,      4-,wrrt 

balance  of  power  in  this 


State  between  the  two 

political  parties ;  and  if  the  demagogues  at  whcm 
gentlemen  were  so  much  frightened,  did  really 
superintend  and  control  the  nominating  conven- 
tions, then  they  could  put  forward  a  foreigner, 
they  could  nominate  a  German  or  an  Irishman 
for  the  express  purpose  of  securing  the  votes  of 
the  foreign  population  ;  and  who  did  not  see  that 
by  party  drill  a  combination  could  be  thus  effect- 
ed which  must  result  in  the  election  ot  such  a 
person  to  the  office  of  Governor.  Of  the  course 
pursued  by  the  gentlemen  then,  he  might  say— to 
use  a  vulgar  expression— that  they  had  taken  ex- 


275 


ceeding  pains  to  stop  up  the  tap,  but  they  had 
left  the  bung-hole  open.  [Laughter.]  He  must 
not,  however,  be  understood  as  applying  these 
remarks  to  the  committee  for  striking  out  the 
word  "  native,"  but  he  (Mr.  C.)  would  never  be 
so  wanting  in  gratitude,  so  shamefully  unjust, 
or  so  destitute  of  magnanimity  as  to  sanction  the 
imposition  of  restrictions  of  so  odious  and  infa- 
mous a  character  upon  the  generous  emigrants 
who  landed  upon  our  shores.  It  would  give  him 
no  uneasiness,  if  the  people  should  be  pleased  to 
elect  a  man  who  did  not  happen  to  be  born  on 
this  side  of  the  water,  and  he  would  leave  the 
people  entirely  free  to  make  such  a  selection. — 
He  had  no  doubt  that  many  men  could  be  found 
of  that  class  who  would  administer  with 
fidelity  and  ability  the  Executive  functions 
of  this  State.  He  knew  many  distinguish- 
ed citizens  who  were  not  native  born,  for 
whom  he  should  feel  it  a  privilege  to  vote.  But 
in  alluding  to  this  subject  now  he  had  only  done 
it  to  show  that  gentleman  on  the  other  side 
were  running  the  same  race  of  demagoguism 
which  they  charged  against  others.  He  would 
now  pass  on  to  other  suggestions.  And  what  did 
we  hear  from  the  advocates  of  restriction  ? — 
Why  gentlemen  had  argued  all  the  way  through 
on  the  assumption  that  the  people  will,  without 
consideration,  nolens  volens,  act  wrong.  That 
is  the  basis  of  all  their  arguments ;  and  therefore 
they  wish  to  throw  checks  and  guards  around  the 
people  to  prevent  the  people  from  acting  wrong. 
Now  on  this  subject  entirely  different  views  were 
entertained  by  the  opposite  sides  of  the  house. — 
He  held  that  the  only  proper  repository  of  political 
power  was  the  people,  who  as  a  general  rule 
would  a "t  right  and  take  care  of  their  own  inter- 
ests. Why  what  was  the  length  and  breadth  of 
the  opposite  argument  ?  Was  it  that  a  man  would 
go  to  the  poll  and  vote  contrary  to  his  own  inter- 
ests ?  Such  a  course  would  be  suicidal.  His 
side  of  the  house  held  that  the  people  would  act 
right,  and  they  therefore  said  it  was  proper  to  en- 
trust them  with  power.  He  never  would  con- 
sent to  put  restrictions  in  the  constitution  unless 
they  were  to  accomplish  some  great  good  by  it. — 
He  never  would  place  himself  in  the  attitude  of 
hampering  the  people  unless  some  great  good 
was  to  result.  But  what  was  the  contemplated 
good  here?  Was  it  to  prevent  the  election  of 
some  young  man  under  30  as  their  Governor  ?  It 
had  been  said  that  practically  there  would  be 
found  to  be  no  force  in  the  proposed  limitation, 
for  the  people  never  would  elect  a  young  man  un- 
der 30 ;  but  if  an  individual  should  stand  out  from 
the  community , distinguished  above  all  others,  giv- 
ing evidence  of  capacity  and  talent  to  induce  the 
people  to  elect  him,  where  would  be  the  danger  ? 
History  was  replete  with  useful  lessons  on  this 
subject.  If  any  period  of  our  judicial  history 
was  distinguished  above  all  others,  it  was  when 
our  bench  was  occupied  by  young  men.  Look 
at  a  Tompkins,  a  Spencer,  and  a  Kent. — 
At  what  age  was  Tompkins  placed  on  the  Su- 
preme Bench  ?  At  the  age  of  30.  At  what  age 
was  Spencer  placed  there  ?  At  about  32.  What 
was  the  age  of  Chancellor  Kent  ?  About  34,  and 
who  was  there  that  did  not  believe  he  was  as  com- 
petent at  the  age  of  30  as  at  34  ?  At  what  age 
did  the  distinguished  member  of  this  body  repre- 


senting the  county  he  came  from,  (Mr.  NELSON) 
take  his  seat  on  the  judicial  bench  as  circuit 
judge?  At  the  age  of  27.  What  was  the  age  of 
John  Bivdsall  when  he  was  appointed  judge  of 
the  8th  circuit  ?  Twenty-six.  And  he  might  go 
on  to  enumerate  other  names  to  show  that  our  ju- 
dicial history  is  most  brilliant  when  we  had 
young,  talented,  vigorous  men  on  the  bench,  ra- 
ther than  when  we  had  impaired  old  age  and  men 
in  a  state  of  dotage.  Again,  who  penned  the  Dec- 
laration of  Independence  ?  At  what  age  was  the 
distinguished  author  of  that  instrument  when  he 
wrote  it  ?  But  33.  And  who  was  there  that  did 
not  believe  that  three  years  before  when  he  was 
preparing  his  notes  on  Virginia,  he  was  not  as 
well  qualified  for  the  important  task  ?  Our  mili- 
tary history  is  also  replete  with  useful  instruc- 
tion. What  was  our  condition  when  the  Hulls, 
the  Dearborns,  the  Wilkinsons,  the  Smyths,  and 
others  were  in  command  on  the  lines  ?  Was  it 
not  one  of  uniform  reverses  and  disasters  ?  Who 
redeemed  the  country  from  those  unpropitious 
circumstances  ;  this  reign  of  grannydom  ?  Was 
it  your  old  men — your  men  of  experience  ?  Men 
who  had  fallen  into  the  sere  and  yellow  leaf? — 
No,  sir — no,  it  was  not  men  whose  vigor  had 
waned.  It  was  your  Browns,  Scotts,  your  Crog- 
hans,  your  Izzards,  your  Perrys,  your  McDo- 
noughs,  who  stepped  forth  and  redeemed  your  ar- 
my from  the  infamy  and  disgrace  into  which  they 
had  fallen,  and  not  men  who  had  passed  the  vi- 
gor of  their  days,  he  might  almost  say,  their  dis- 
cretion. There  was  another  individual  (supposed 
to  be  an  allusion  to  Gen.  Scott)  who  while  young, 
when  in  the  vigor  of  his  faculties,  his  bosom 
swelled  with  patriotism,  and  he  could  go  out  and 
successfully  fight  the  battles  of  his  country ;  but 
when  his  head  became  whitened,  when  he  ^ob- 
tained all  that  experience  in  which  gentlemen 
here  contended  there  was  so  much  safety,  they 
found  him  more  distinguished  in  handling  the 
soup  ladle  than  the  sword.  He  asked  gentlemen 
to  turn  their  attention  to  the  list  of  immortal  men 
of  1776,  whose  names  are  affixed  to  that  instru- 
ment, [pointing  to  a  copy  of  the  Declaration  of 
Independence.]  What  was  the  age  of  the  mem- 
bers of  the  Congress  of  that  period  ?  Who  were  its 
most  acave  and  inrluental  members?  He  could 
show  them  that  it  was  the  men  who  were  under 
30  years  of  age.  Again,  who  have  been  the 
most  distinguished  men  in  the  service  of  the 
people  at  large  ?  Was  it  not  your  men  who  com- 
menced their  career  under  the  prescribed  age? — 
At  what  age  did  Mr.  Clay  enter  the  United 
States  Seriate?  The  charge  had  been  made  that 
he  was  within  the  prescribed  limit ;  it  has  never 
been  denied  and  we  are  to  assume  that  it  is  true. 
At  what  age  was  Mr.  Webster  when  he  repre- 
sented New-Hampshire  in  the  great  representa- 
tive body  of  the  country?  Thirty?  No,  he  had 
not  attained  that  &ge.  At  what  age  was  Tomp- 
kins when  he  succeeded  to  the  gubernatorial  chair 
of  this  state?  But  32.  When  our  present  Go- 
vernor entered  upon  his  career  in  another  body 
in  this  hall,  what  age  had  he  attained?  But  28. 
And  was  he  not  then  qualified  to  discharge  the 
duties  of  Governor,  or  of  every  relation  of  life,  or 
of  any  station  to  which  his  partial  country  might 
have  elevated  him  ?  He  was  as  fit  at  28  to  dis- 
charge the  duties  of  Governor  of  the  state  as  he  is 


276 


at  this  day.  At  what  age  was  the  ex-President  of 
this  state,  (Martin  Van*  Buren)  when  he'  was  one 
ot"  the  leading  men  in  the  senate  of  fhis  state, 
and  most  ably  sustained  the  Executive  arm  in  carry- 
ing on  the  war  in  which  this  country  was  involved  ? 
He  was  about  30  when  he  look  his  seat  tb<Te. — 
He  would  point  to  another  illustrious  instance, 
which  no  one  wo'ild  gainsay  ;  he  alluded  !o  his 
ingenious  and  eloquent  friend  from  Saratoga  (Mr. 
PORTER),  whose  speech  yesterday,  so  full  ot  argu. 
ment,  so  replete  with  eloquence,  so  lad^n  down 
with  tropes  of  poesy,  so  ornate  with  figures  of 
rhetoric,  led  them  to  believe  that  he  would  be 
come  one  of  the  most  useful  members  of  .this 
body.  Did  any  one  doubt  his  ability  to  administer 
the  affairs  of  the  executive  office  of  this  state? — 
The  exhibition  he  had  afforded  of  talent  left  no 
doubt  on  that  subject,  and  yet  the  record  showed 
him  to  be  under  the  age  of  30.  Yet  what  was  the 
argument  of  that  gentleman  himself?  Why 
speaking  of  gentlemen  ot  this  body  of  foreign 
birth,  he  said  he  saw  them  coming  here  with  the 
confidence  of  their  constituents  to  lay  the  foun- 
dation of  the  commonwealth  anew.  Now  was 
not  the  gentleman  from  Saratoga  here  with  the 
confidence  of  his  constituents  and  by  the  will  of  a 
free  people  ?  By  what  other  right  was  he  there  ? 
Was  not  he  at  less  than  the  age  of  30  there  with 
as  much  of  the  confidence  of  his  constituents  as 
he  would  have  been  if  he  were  two  or  three  years 
older  ?  That  gentleman  was  now  doubtless  in 
the  full  vigor  of  his  intellectual  powers.  No  af- 
ter years  will  strengthen  them.  He  may  add  to 
his  fund  of  knowledge,  and  to  his  acquaintance 
with  things,  but  the  strength  and  vigor  of  his  in- 
tellect will  never  receive  any  acquisition  in  Mr. 
C.'s  judgment.  But  there  were  other  proposi- 
tions to  be  examined  which  he  thought  they 
should  find  to  be  non  sequiturs.  He  would  be- 
gin with  the  gentleman  from  Essex  who  was  the 
very  personification  of  logic,  who  could  never 
open  his  mouth  without  uttering  an  axiom  that 
was  self-evident ;  and  what  was  the  propositions 
he  laid  down  and  what  were  the  conclusions 
which  were  drawn  from  those  propositions  ?  Why 
if  he  was  to  employ  a  man  to  do  business  for  him 
— to  carry  goods  from  New  York  for  instance — 
he  would  like  the  widest  latitude  of  selection ; 
ergo  the  people  are  to  be  placed  under  restric- 
tions. If  he  was  to  appoint  an  agent  to  carry  his 
will  into  execution  he  would  require  the  widest 
latitude  of  selection ;  ergo  the  people  are  to  be 
curtailed.  Why  this  was  evidently  a  noa  sequi- 
tur,  zfelo  de  se,  for  it  destroyed  itself.  Nor  was 
his  friend  from  New  York  (Mr.  MORRIS)  more 
happy.  He  would  place  checks  and  guards. 
Why  ?  Because  the  electors  are  not  the  people — 
they  are  only  a  part  of  the  people  ;  ergo  the  peo- 
ple should  not  elect  their  Governor.  We  are 
here  to  protect  those  that  cannot  vote  ;  ergo  the 
people  should  be  restricted  in  their  choice  of  a 
Governor.  The  men  who  vote  act  in  a  represen- 
tative capacity;  ergo  the  people  should  be  check- 
ed and  guarded  by  the  Constitution.  He  would 
bring  in  widows  who  have  large  property  to  be 
protected  ;  ergo  the  people  should  not  be  allow- 
ed to  choose  their  Governor,  only  a  portion  of 
them.  The  gentleman  from  New  York  went  on 
further  to  say  he  would  not  allow  the  people  to 
elect  "  Jonah's  gourds,"  and  therefore  restric- 


tions were  to  be  placed  in  the  Constitution.  By 
all  this  he  was  reminded  of  an  ancient  syllo- 
gism— it  undoubtedly  had  its  origin  in  a  classic 
age — which  was  equally  as  consistent.  "  Adam 
was  the  first  man.  Jonah  was  in  the  whale's 
belly ;  ergo  Sampson  caught  the  foxes." — 
[Laughter.]  His  friend  from  Ontario  (Mr. 
WORDEN)  had  taken  the  only  view  of  the  ques- 
tion the  other  day  of  which  it  was  susceptible. 
There  was  perhaps  nothing  practically  beneficial 
to  be  attained  by  it,  but  as  he  understood  it  a 
great  principle  was  involved,  and  that  was  most 
pertinently  put  by  the  gentleman  from  Ontario, 
who  showed  that  it  was  the  remains  of  old  feder- 
alism. What  had  been  the  doctrine  of  that  party 
while  it  was  in  existence  ?  What  was  the  doc- 
trine of  Alexander  Hamilton  ?  It  was  that  the 
people  were  not  to  be  trusted  and  that  checks  and 
guards  must  be  placed  around  them  and  that  you 
should  elect  your  Governor  for  life.  There  was 
a  fear  exhibited  of  too  much  democracy  ;  when 
the  Governor  was  to  be  elected  he  must  be  "rich 
and  wTell-born."  Senators,  too,  must  be  elected 
for  life  for  the  same  reason,  for  the  people  were 
not  competent  to  govern  themselves.  Such  was 
the  doctrine  of  old  federalism ;  and  of  a  like  cha- 
racter were  some  of  the  restrictions  imposed  by 
the  Convention  of  1821,  and  those  who  were  anx- 
ious to  impose  checks  and  guards  on  the  elective 
franchise  at  any  time  and  under  all  circumstances 
were  entitled  to  the  term  of  federalists — as  much 
at  this  day  as  25  years  ago.  Look  at  all  the  chan- 
ges made  since  1777  up  to  the  proposed  amend- 
ments now  offered  and  it  would  be  seen  the  peo- 
ple had  not  gone  backward.  All  the  changes 
have  been  in  favor  of  popular  liberty.  All  the 
steps  taken  have  been  to  secure  to  the  people 
those  rights  which  were  denied  to  them  by  the 
doctrines  of  Federal  concoction.  Evidence  was 
afforded  of-  the  progress  of  liberal  opinions  among 
the  people  by  the  fact  that  justices  of  the  peace 
were  now  elected  by  the  people  instead  of  being 
appointed  by  a  council  of  appointment.  In  that 
matter  federalism  had  to  give  way.  Also  in  the 
matter  of  a  property  qualification  in  connection 
with  the  elective  franchise.  He  would  impose 
no  other  restriction  on  the  eligibility  to  the  office 
of  governor  than  that  of  being  an  elector  or  one  of 
the  people.  Beyond  that  he  would  trust  every 
thing  to  the  people  to  make  their  own  selection. 
But  there  were  other  matters  to  which  gentlemen 
had  referred  ;  and  in  reference  to  some  remarks 
made,  he  said  no  one  would  hear  him  urge  that 
this  Convention  had  not  the  power  to  place  guards 
and  checks  and  restrictions.  It  doubtless  had  the 
power,  but  it  was  unwise,  unjust  and  inexpedient 
to  exercise  it  here.  This  Convention  had  to  pro- 
pose to  the  people  to  adopt  or  reject;  it  was  for 
them  then  to  determine  whether  they  would  send 
down  to  the  people  a  liberal  constitution  compat- 
ible with  their  views  to  adopt,  or  one  of  a  restric- 
live  character  which  the  people  could  not  con- 
sistently take.  He  confessed  he  was  for  going 
to  the  people  with  a  most  liberal  constitution. — 
He  was  willing  to  trust  the  people  in  the  elec- 
tion of  their  officers.  He  was  willing  to  have  the 
170,000  young  men  of  this  state  under  thirty  years 
of  age  pass  their  judgment  on  our  action,  for  ev- 
ery gentleman  knew  that  very  soon  that  class  of 
voters  would  be  the  controlling  majority.  He 


277 


was  willing  they  should  say  by  their  votes  what 
kind  of  a  government  they  would  live  under. — 
for  himself  he  was  advanced  to  the  middle  period 
of  life;  and  it  was  more  important  to  those  that 
were  to  follow  him  than  to  those  whose  heads 
were  already  whitened  with  the  frosts  of  winter 
what  the  Constitution  was  to  be.  He  would  send 
a  Constitution  embodying  those  liberal  principles 
which  he  had  cherished  through  life,  and  if  the 
people  approved  them  he  should  be  grateful. — 
The  gentleman  from  Saratoga  had  charged  that 
those  who  were  in  favor  of  the  removal 
of  the  restrictions  were  old  men.  Now, 
on  looking  around,  he  found  the  charge  was  un- 
true— there  was  no  dividing  line.  Mr.  C.  spoke 
briefly  of  the  intelligence  of  the  people  and  their 
fitness  to  possess  the  power  of  electing  their  offi- 
cers and  managing  their  own  State  affairs.  The 
school  district  libraries  had  converted  them 
into  a  reading  and  thinking  people,  which  had 
banished  the  sottish  habits  which  consumed  the 
time  with  the  cider  cup  and  the  pipe.  They 
were  conversant  with  and  able  to  argue  on  the 
questions  of  the  day  and  the  abstract  subject  of 
government.  And  yet  they  were  not  to  be  en- 
trusted with  self-government,  lest  they  should 
elect  some  green,  raw,  long-legged  gawkey  of  a 
boy  who  cannot  read  or  write.  Such  was  the 
fear  of  the  gentleman  from  Essex  ;  but  the  con- 
stituents Mr.  C.  represented  would  no  more  elect 
a  raw  boy  than  the  gentleman  from  Essex  would 
adopt  democratic  sentiments.  While  the  pro- 
gress of  events  in  this  country  had  led  them  to 
make  changes,  they  were  stigmatized  as  the 
"  progressive  democracy."  And  there  was  more 
in  that  than  was  contemplated.  It  is  an  age  of 
progression.  Every  step  is  a  progressive  one, 
based  on  increasing  knowledge  among  the  people  ; 
and  every  step  had  demonstrated  that  the  people 
can  be  entrusted  with  the  carrying  out  of  the 
fundamental,  radical  principles  of  self-govern- 
ment. 

Mr.  SIMMONS  had  been  alluded  to  a  great  ma- 
ny times,  and  he  felt  bound  to  notice  some  of 
these  allusions.  He  had  thrown  out  the  sugges- 
tion here,  and  had  not  heard  it  answered  yet — 
that  the  removal  of  this  restriction  of  age,  would 
work  disadvantageously  in  its  application  to  the 
people  and  to  the  very  existence  of  our  government 
and  institutiens.  Mr.  S.  said  that  the  young  men 
of  the  poorer  classes  from  whom  all  our  great 
public  men  emanated,  in  general  did  not  receive 
that  public  education  necessary  to  bring  them  for- 
ward, until  the  age  of  30,  and  then  it  would  be 
giving  the  sons  of  the  rich  a  decided  advantage 
over  them  in  the  contest  for  popular  favor.  The 
throwing  open  of  the  door  in  this  way,  would  be 
an  invitation  to  young  politicians  to  form  combi- 
nations to  elect  the  rich  son,  who  might,  by 
means  of  his  wealth  obtain  sufficient  prominence. 
The  effect  would  be,  to  say,  that  the  age  of  30 
should  be  prescribed  for  the  farmers'  son,  but  if 
the  candidate  happened  to  be  born  wealthy,  and 
has  therefore  friends  and  influence,  he  may  be 
governor  when  he  was  21.  A  great  many  in- 
stances had  been  produced  by  the  candid  gentle- 
man from  Otsego,  (Mr.  CHATFIELD)  that  there 
had  been  great  many  public  men,  a  little  over  the 
age  of  30,  and  ergo,  as  he  would  say,  the  .doors 
had  better  been  thrown  open  to  21.  If  they  were 


great  at  that  age,  they  were  greater  a  little  older, 
and  more  eminent  still  at  40.  Mr.  S.  regretted 
that  a  political  turn  had  been  given  to  the  debate, 
and  he  was  sorry  that  the  gentleman  had  consen- 
ted to  give  it  that  direction. 

Mr.  CHATFIELD  suggested  that  the  first  in- 
timation of  that  kind  came  from  the  gentleman 
on  the  other  side  of  the  house. 

Mr.  SIMMONS  was  aware  of  thai, and  he  regret- 
ted it,  and  he  found  a  perfect  apology  for  the  gen- 
tleman from  Otsego.in  the  (act.  It  wa.s  ihe  gentle- 
man from  Chautauque  (Mr. PATTERSON)  who  had, 
in  the  opening  of  the  Convention,  made  the  first 
suggestion  of  party  politics  that  hid  been  heard 
here.  There  had  been  found  in  thisSOyeai  qualifi. 
cation,  by  some  gentlemen,  a  remnant  of  old  fed- 
eralism ; — then  a  majority  of  the  people  of  "2!,  and 
of  the  Union  then,  and  down  to  this  time,  must 
have  been  old  federalist*,  and  he  had  had  no  idea 
before  that  there  were  so  many  of  them.  In  his 
own  views  Mr.  S.  was  naturally  conservative,  and 
in  favor  of  continuing  the  established  order  of 
things,  when  no  actual,  visible  mischief  could  be 
shown  to  have  resulted  therefrom  He  would  not 
do  it  alone  from  mere  speculative  theory.  Again 
he  desired  to  see  no  laws  in  the  Stale  which  pre- 
supposed that  brilliant  talents  and  acquirements 
were  requisite  qualifications  for  public  office.  Great 
talent  he  believed  had  done  mote  harm  than  good 
in  the  woild.  The  true  kind  of  talent  which  had 
improved  and  was  perfecting  the  world  was  that 
contained  in  the  average  sense  of  the  mass, 
known  generally  as  common  sense.  The  true 
foundation  of  our  government,  and  of  a  represen- 
'ative  demociacy  was  based  on  this  idea,  on  the 
fact  that  the  people  had  capability  within  th>in- 
selves  to  discharge  the  duties  of  all  their  own 
offices.  And  this  would  not  be  canied  out  until 
much  less  impuitance  was  attached  to  office, 
Mr.  S.  said  it  would  be  doing  a  great  injury  to  a 
young  man  to  make  him  Governor  before  thirty, 
it  would  kill  him  off-',  and  he  would  be  laid  on  the 
shelf.  There  had  been  instances  of  this  in  this 
State.  It  was  therefore  an  injury  to  young  men 
to  invite  them  to  become  politicians.  Mr.  S.  urged 
that  these  restrictions  were  to  be  found  in  every 
State  Constitution  in  the  Union,  and  were  wise 
and  salutary.  This  Convention  evinced  but  little 
modesty  in  thus  assuming  to  be  above  the  wisdom 
of  every  other  body.  We  were  told  that  the  Con- 
vention of  '21  were  old  federalists,  that  the  peo- 
ple who  ratified  that  Constitution  were  the  same, 
and  that  they  were  absurd  and  incapable  of  com- 
prehending an  argument.  This  was  the  drift  of 
the  whole  argument  on  the  other  side. 

Mr  CHATFIELD,  would  ask  the  gentleman 
upon  that  subject,  whether  or  no?  the  people  had 
by  a  slow  progression  discovered  the  absurdity  of 
many  provisions  of  that  Constitution  and  correct- 
ed them.  And  this  Convention  was  to  lop  off  ail 
that  was  left  of  this  absurdity.  Mr.  C.  dissented 
from  another  proposition  that  we  should  not  in- 
vite young  men  to  be  politicians  What  had  dis- 
tinguished this  country  ?  It  was  that  the  people 
were  required  to  understand  their  institutions  and 
laws  and  to  examine  them.  And  there  must  be  a 
motive  to  induce  any  man  to  make  an  examina- 
tion. These  examinations  were  a  kind  of  public 
school  in  which  men  were  preparing  to  become 
public  men.  He  had  heard  the  fate  of  the 


278 


Scythian  and  Sardmarian  slaves  over  which  Charl 
XII  of  Sweden  ruled,  alluded  to  as  an  evidenc 
of  the  danger  resulting  from  a  young  ruler.  Th 
illustration  was  a  most  unfortunate  one — he  woul 
not  compare  the  people  of  this  country  for  on 
moment  to  such  a  horde  ot  slaves.  The  idea  tha 
there  would  be  any  less  an  invitation  to  men  t 
become  politicians  with  thisv  section  stricken  ou 
than  if  retained,  was  absurd*  and  idle.  Men  un 
der  thirty  talked  just  as  much  now  about  offic 
and  were  politicians  to  an  equal  extent,  with  th 
restriction  on,  that  they  would  be  if  it  was  re 
moved. 

Mr.  JORDAN  moved  that  the  committee  rise 
and  report  progress.  Lost. 

Mr.  WORDEN  suggested  that  if  the  gentleman 
from  Columbia  (Mr.  JORDAN)    desired  to  addres 
the  Convention    that   the   committee  should    rise 
and  the  Convention  afterwards  adjourn  to  meet  a 
4  this  afternoon. 

Mr.  WARD  enquired  if  the  gentleman  from 
Columbia  wished  to  address  the  Convention  again 
upon  this  question. 

Mr.  JORDAN  would  answer  the  question  in 
this  way.  There  were  gentlemen  in  his  quarter 
ot  the  house  who  desired  to  address  the  Conven 
tion.  Mr  J.  said  that  about  three-fourths  of  the 
house  had  now  left  for  dinner,  and  he  urged  tha 
there  should  be  a  full  house  when  the  final  ques- 
tion was  taken. 

Mr.  WARD  said  that  if  any  gentleman  would 
rise  up  and  say  he  desired  to  speak  again,  he,  so 
far  as  he  was  concerned,  would  be  willing  that  the 
committee  should  r;se.  But  he  was  desirous  ol 
taking  the  question.  He  averred  that  this  whole 
discussion,  except  so  much  of  it  as  related  to  the 
five  years  residence  had  been  out  of  order.  Not  a 
word  had  been  heard  upon  that  point,  and  yet  it 
was  the  only  question  before  the  house.  The 
other  qualifications  having  been  stricken  out  some 
days  ago. 

Mr.  CHATFIELD,  (as  chairman  of  the  com- 
mittee) said  that  the  gentleman  was  mistaken  on 
the  subject  as  to  the  question  of  order.  The  mo- 
tion pending  was  to  strike  out  the  whole  section, 
and  to  insert  other  matter,  and  this  opened  the 
whole  question. 

Mr.  WARD  intended  no  disrespect  to  the  chair- 
man, but  still  he  must  insist  on  his  point.  Mr.  W. 
urged  that  the  question  should  be  taken  without 
further  debate,  and  also  advocated  the  qualifica- 
tion of  5  years  residence. 

After  some  further  conversation  on  this  point, 
between  Messrs.  STETSON  and  JORDAN, 

The  CHAIR  announced  the  ques'ion  to  be  on 
the  motion  to  strike  out  and  insert  the  amend- 
ment of  the  gentleman  from  Onondaga. 

Mr.  JORDAN  insisted  that  that  was  not  the 
question  before  the  Convention.  The  question 
was  simply  on  striking  ouf  the  five  years  resi- 
dence— the  others  had  been  struck  out  days  ago. 
The  point  of  order  was  briefly  discussed  by 
Messrs.  JORDON,0'CONOR,  RUSSELL,  BROWN 
and  W.  TAYLOR,  when  the  motion  was  varied 
so  as  to  make  it  a  mere  proposition  to  strike  out 
the  whole  of  the  second  section.  It  was  lost — 
ayes  41,  nays  56.  [By  count.] 

Mr.  W.  TAYLOR  then   renewed   his  amend- 
ment. 
Mr.  PATTERSON  suggested  that  the  commit- 


tee having  refused  to  strike  out,  it  was  equivalent 
to  adopting  the  section  as  it  then  stood.  It  was 
therefore  not  amendable. 

The  CHAIR  thought  the  motion  to  be  in  or- 
der. 

The  question  being  taken,  Mr.  TAYLOR'S 
amendment  was  rejected. 

And  then,  on  motion  of  Mr.  RUSSELL,  the 
committee  rose  and  reported  progress — 49  to  46. 

And  the  Convention  adjourned. 


SATURDAY,  (33d  day,)  July  11. 

Prayer  by  Rev.  Mr.  HUNTING-TON. 

A  communication  was  received  from  the  Re- 
gents of  the  University  through  their  Secretary, 
relative  to  the  affairs  connected  with  the  Univer- 
sities, &c.  in  this  State.  Referred  to  the  com- 
mittee on  education,  and  ordered  to  be  printed. 
A  NEW  RULE. 

Mr.  TAGGART  moved  to  adopt  a  new  rule, 
as  a  substitute  for  the  19th  Rule,  which  would  au- 
:horize  the  reconsideration  at  any  time  in  commit- 
tee  of  the  whole,  of  any  subject. 

Mr.  CHATFIELD  moved  to  have  this  referred 
:o  the  committee  on  rules,  in  order  that  it  might 
be  examined. 

There  being  no  objections  to  this,  it  was  so  re- 
rerred. 

RULE  FOR  SHORT  SPEECHES. 

Mr.  SWACKHAMER  offered  a  resolution  that 
no  member  should  be  allowed  to  speak  in  commit- 
ee  of  the  whole  or  in  convention  more  than  30 
uinutes  for  the  first  time  on  any  question,  and  not 
o  exceed  15  minutes  in  any  subsequent  (much 
aughter,)  remarks  on  the  same  subject. 

After  some  conversation,  on  the  motion  of  Mr. 
HOFFMAN,  the  resolution  was  referred  to  the 
ommittee  on  rules. 

ABUSES  BY  CLERKS  OF  THE  SUPREME  COURT. 

Mr.  MANN  called  up  the  memorial  of  Burtis 
Skidmore,  which  was  laid  on  the  table  yesterday, 
elative  to  certain  abuses  and  acts  of  corruption 
lleged  to  have  been  committed  by  William  P ax- 
on  Hallett,  Clerk  of  the  Supreme  Court  of  the 
ity  of  New -York. 
The  memorial  was  read. 

Mr.  MANN  moved  to  refer  it  to  the  Judiciary 
ommittee.     He  said  since  the  subject  was  under 
iscussion  yesteiday,  he  had- more  fully  examined 
t,  and  came  to  the   conclu&ion  that  the  memorial 
e  properly  belonged  to  the  judiciary  commit- 
ee,  and  preferred  it  should  have  this  reference  to 
he  committee  No  14,  as  proposed  by  him  yesler- 
ay.     The  honorable  gentleman  from  Westchester 
,ave   yesterday    as  a  reason  why  this    memorial 
bould  not  be  referred  at  all,  because  it  made  a  di- 
et charge  against   Mr.  Hallet,  who   was  a  very 
espectable  citizen  and  public  officer.     Mr.  MANN 
epudiated  such  a   reason,   and   that  he,  Mr.  H., 
fas  a  public  officer,  was  his  (Mr.  M.'s)  reason  for 
proper  reference  and  a  thorough  investigation  of 
le  statements  set  forth  in  the  memorial.     He  had 
idea  of  screening  any  public  functionary  for  any 
uch  reason,  and  hoped  the    memorial  would   be 
eferred  to  the  judiciary  committee,  and  be   pro- 
erly  considered. 
Mr.  NICOLL  considered  the  abuse  here  alleged 


279 


and  complained  of  as  one  that  called  for  a  decided 
correction  ;  but  it  had  grown  out  of  abuses  in  as- 
lents  in  New-York,  and  he  thought  theiefore 
th:it  the  consideration  of  it  more  properly  belong- 
ed to  municipal  corporations,  and  there  was  a  good 
reason  why  it  should  take  that  course  ;  the  Judi- 
ciary committee  had  a  very  great  quantity  of  oth- 
er business  to  attend  to,  which  occupied  all  of  its 
time  ;  whereas  the  committee  on  municipal  cor- 
porations was  in  a  fit  state  to  attend  to  this  matter 
at  once. 

Mr,  SHEPARD  hoped  that  this  memorial 
would  not  be  referred  to  any  committee  whatever. 
His  colleague,  he  thought  misapprehended  the 
communication.  It  accuses  Mr.  H  ALL  ETT  of  cor- 
ruption, and  that  is  all  there  is  of  it.  This  com- 
mittee therefore  had  nothing  whatever  to  do  with 
the  memorial.  It  charges  Mr.  HALL.ETT  as  Clerk 
ot  the  Supreme  Court,  with  taxing  his  own  costs 
as  commissioner  and  allowing  himself  a  large  sum 
fur  nominal  services.  They  were  not  thereto  try 
an  individual  case  of  corruption,  such  as  is  here 
alleged  ;  or  to  enquire  into  such  cases.  There 
was  another  tribunal  to  redress  these  cases.  The 
consideration  or  reference  of  it  at  all,  in  any  way, 
would  be  a  useless  waste  of  time  ;  and  he  there- 
fore moved  that  it  be  again  laid  upon  the  table. 

The  motion  to  lay  on  the  table  was  lust. 

Mr.  NICOLL  then  moved  to  refer  it  to  the  com- 
inittee  on  municipal  corporations. 

Mr.  STOW  said  that  he  wished  the  endorsement 
read  before  he  voted  on  if. 

Mr.  SHEPARD.  The  endosement  does  not 
give  the  character  of  the  memorial. 

The  endorsement  and  memorial  were  then  both 
read  by  consent.  This  is  the  endorsement : 

Comm'inicKtion  of  Burtis  Skidmore  of  the  city  of  New 
York  h  reference  to  the  acts  of  the  Clerk  of  the  Supreme 
Court  in  said  city, in  officiating  as  commissioner  of  stieets 
and  making  extravagant  charges  as  such,  and  appearing 
before  himself  as  Clerk  of  the  Supreme  Court,  and  taxing 
his  own  costs  and  charges  as  commissioner.having  receiv- 
e  1  both  appointments  from  the  same  tribunal,  and  acting 
as  party  and  judge  at  the  same  time. 

Mr.  BROWN  said  that  if  this  memorial  con- 
tained merely  a  charge  of  mal. conduct  on  the  part 
of  Mr.  Haliett,  or  if  it  called for  any  action  on  the 
part  of  this  Convention  against  Mr.  Hallett,  it 
might  be  as  well  to  let  it  lie  on  the  table.  But  it 
merely  cited  certain  abuses  which  had  grown  up 
out  of  the  practices  (allowed  by  law)  on  the  part 
of  the  clerks  ot  the  Supreme  Court,  and  brought 
facts  to  the  notice  of  the  Convention.  He  did  not 
understand  that  it  charged  Mr.  Hallett  with  the 
commission  of  any  fraud.  He  had,  it  appears, 
acted  as  a  Commissioner  in  the  assessment  of  da 
mages  for  opening  ot  streets,  and  whilst  in  that 
capacity  he,  acting  also  as  Clerk  of  the  Supreme 
Court,  had  taxed  his  own  costs,  or  fees  as  Com- 
missioner. It  aho  appears  that  he  was  appointed 
a  Commissioner  by  the  Supreme  Court,  to  whom 
also  he  owed  his  appointment  of  Clerk;  and  as  a 
Clerk,  he  sat  to  tax  the  costs  which  he  had  him 
self  charged  whilst  acting  as  Commissioner.— 
This  was  an  abuse  of  power,  doubtless,  but  it  had 
at  the  same  time  the  sanction  of  lav/.  There  is 
no  accusation  of  fraud  or  oppression  on  the  part 
of  Mr  Hallett,  but  a  statement  made  of  facts,  to 
prevent  a  repetition  of  which,  for  the  future,  the 
Convention  should  insert  mose  provision  in  the 
Constitution.  In  respect  to  all  these  clerks  of 


courts,  many  abuses  existed  that  required  correc- 
tion. In  his  part  of  the  country  the  sums  paid  to 
clerks  were  much  too  large,  anJ  the  system  ope- 
rated most  oppressively.  But  this  is  not  the  fault 
of  the  clerks,  but  of  the  law.  He,  therefore, 
thought  it  extremely  proper  that  a  reference 
should  be  had  of  this  memorial,  in  order  that  they 
might  see  whether  they  could  not  by  a  change  in 
the  mode  of  appointment,  and  in  the  mode  of  com- 
pensating those  officers,  hereafter  prevent  the 
abuses  which  have  so  frequently  occurred,  and 
which  in  this,  as  well  as  in  many  other  cases, 
has  been  properly  complained  of.  And  he  ap- 
pealed to  the  good  sense  of  the  friends  of  Mr. 
Hallett,  whether  it  wo-. Id  not  be  the  better  plan 
for  them  to  adopt,  to  have  I  his  matter  fully  in- 
vestigated, and  not  to  suppress  any  of  those  facts, 
but  let  them  be  referred  and  examined,  and  a  plan 
reported  to  put  a  stop  to  this  evident  abuse  of 
power.  He  had  heard  some  gentlemen  around 
him  insinuate  that  Mr.  Skidmore  was  not  a  re- 
spectable man.  Now,  of  this  point  he  knew  no- 
thing  whatever,  but — 

Mr.  TOWNSEND  wished  to  correct  any  such 
impression  as  that  at  once  ;  he  knew  Mr.  Skid- 
more  to  be  a  highly  respectable  gentleman ;  he 
was  of  different  politics  from  himself,  (Mr.  T.) 

Mr.  SHEPARD  hoped  that  the  gentleman  from 
Orange  (Mr.  BROWN)  did  not  labor  under  the  im- 
pression that  he  had  said  any  thing  of  the  kind. 

Mr.  BROWN  said  he  would  not  charge  any  one 
in  particular ;  but  it  was  a  kind  of  insinuation 
around  him  in  a  sort  of  under  tone ;  probably  no 
gentleman  seriously  meant  anything  in  so  saying. 
But  he  was  about  to  say  that  he  desired  to  see  a 
different  mode  of  compensating  these  officers 
adopted.  This  subject  is  now  before  the  Judici- 
ary committee  to  provide  for  an  annual  salary  for 
them.  He  was  in  favor  of  paying  them  a  stated 
annual  salary;  and  of  prohibiting  them  from 
touching  a  single  dollar  of  fee  for  their  own  use, 
except  that  annual  salary,  and  he  would  do  his 
utmost  to  effect  this  object.  Justice  to  all  per- 
sons in  the  state  required  that  if  in  this  particular 
there  be  a  legislative  or  a  judicial  wrong,  that  it 
should  be  corrected;  and  under  these  circumstan- 
ces he  felt  that  this  memorial  ought  to  be  treated 
respectfully  by  this  Convention,  and  that  it  was 
fully  entitled  to  their  serious  considerations. 

Mr.  RICHMOND  fully  concurred  in  the  senti- 
ments which  had  been  advanced  by  the  gentle- 
man from  Orange ;  there  was  no  slander  or 
charge  of  corruption  in  the  paper;  the  memorial 
charged  that  certain  distinct  abuses  had  grown  out 
of  the  exercise  of  the  powers  of  two  distinct  and 
conflicting  offices  by  one  person ;  and  that  this 
was  sanctioned  by  the  law  as  it  now  stands.  A 
complete  correction  of  this  abuse  was  therefore 
called  for  by  the  people  at  the  hands  of  the  Con- 
vention. And  it  was  therefore  exceedingly  pro- 
per this  memorial  should  be  referred,  the  abuses 
enquired  into,and  a  remedy  provided  for  the  same 
by  the  committee. 

Mr.  MORRIS  agreed  with  the  gentleman  from 
Orange  ;  a  reference  was  all  very  proper ;  it  stated 
facts  in  a  matter  on  which  they  were  now  acting 
and  should  be  properly  referred  so  that  they  might 
use  the  facts  ;  but  he  differed  with  gentlemen  as 
to  the  proper  committee  to  which  the  paper  should 
be  sent.  He  had  thought  that  perhaps  commit- 


280 


tee  No.  7  would  be  the  proper  reference ;  the 
committee  on  the  appointment,  duties  and  com- 
pensation of  local  officers.  The  subject  here  in- 
volved was  whether  an  officer  should  be  allowed 
to  hold  a  second  official  station,  the  duties  of 
which  would  conflict  with  the  duties  of  the  first 
and  yet  perform  the  duties  of  both.  He  did  not 
know  that  the  Convention  could  consider  the 
clerk  of  the  Supreme  Court  a  judicial  officer ;  he 
thought  that  they  could  not.  And  on  further  re- 
flection he  thought  probably  that  committee  No. 
6,  on  the  appointment,  duties,  powers  and  com- 
pensation of  officers  other  than  legal  and  judicial, 
whose  functions  are  not  local,  was  the  appropri- 
ate reference.  The  duties  of  the  clerks  of  the  Su- 
preme Court  were  not  all  strictly  local ;  and  he 
thought  perhaps  No.  6  was  the  proper  com- 
mittee for  the  reference.  The  difficulty  appear- 
ed to  be  this.  Here  is  an  officer  who  is  plac- 
ed by  the  law  to  exercise  checks  and  guards 
over  other  officers  ;  and  at  the  same  time  it  is  al- 
leged, that  he  has  been  the  judge  of  his  own  acts. 
There  would  not  have  been  this  difficulty  if  the 
Constitution  had  said  that  the  clerk  of  •  the  Su- 
preme Court  should  hold  no  other  office  of  trust  or 
emolument.  That  is  the  point ;  and  to  enquire 
into  this  committee  No.  6  seemed  to  him  to  be  the 
proper  one. 

Mr.  CHATFIELD  was  opposed  to  having  it  re- 
ferred to  committee  No.  6,  of  which  he  was  the 
chairman  ;  and  he  thought  that  if  the  gentleman 
reflected  a  little,  he  would  not  press  that  mode  of 
reference.  As  it  was  a  matter  relating  to  the 
powers  of  judges  it  ought  to  go  first  to  the  judi- 
ciary committee.  This  committee  supposed  the 
judiciary  committee  would  bring  in  a  report  rel- 
ative to  this  matter  ;  and  so  they  delayed  action 
on  it. 

Mr.  MORRIS  :  I  withdraw  it,  then,  sir,  if  the 
gentleman  objects.  I  withdraw  it. 

Mr.  STOW  wished  to  enquire  if  any  one  could 
tell  him  whether  there  were  any  other  officers 
appointed  to  tax  these  costs  alluded  to,  besides 
the  clerk  of  the  Supreme  Court  ? 

Messrs.  MORRIS  and  SHEPARD— Yes,  sir, 
there  are  two  others  with  whom  he  acts  in  this 
matter. 

Mr.  STOW  said  that  in  this  instance  it  was 
evident  that  this  Mr.  Paxton  Hallett  had  no  au- 
thority of  law  to  act  in  the  matter  ;  by  accepting 
the  one  office  he  was  by  law  evidently  disquali- 
fied from  accepting  the  other,  or  from  acting  in 
the  business,  because  the  duties  of  the  one  con- 
flicted with  the  duties  of  the  other ;  and  the  ac- 
ceptance of  the  office  of  commissioner  to  assess 
these  damages,  disqualified  him  from  acting  as 
clerk  of  the  supreme  court  to  tax  his  own  costs 
accruing  to  him  from  this  exercise  of  the  office  of 
commissioner.  And  the  acceptance  of  the  latter 
office,  vacated  the  first.  Mr.  Hallett  has  thus 
acted  contrary  to  law  ;  and  this  question  there- 
fore does  involve  the  character  of  Hallett ;  for 
he  has  acted  illegally.  And  it  ought  to  go  to  a 
general  committee  which  had  power  to  overlook 
all  abuses  of  all  officers,  but  as  there  was  no  com- 
mittee to  consider  this  specially,  perhaps  the  best 
reference  would  be  to  committee  No.  6. 

Mr.  RUGGLES  was  of  the  same  opinion  as  the 
gentleman  from  New  York  (Mr.  SHEPARD)  that 
this  was  a  matter  with  which  the  Convention  had 


nothing  to  do.  If  there  had  been  any  abuse  com- 
mitted in  this  matter  by  the  clerk,  Mr.  Hallett, 
here  was  a  remedy  provided  for  it  by  law.  And 
f  Mr.  Skidruore  had  applied  to  the  Supreme 
Jmirt,  that  body  would  have  ordered  a  relaxation 
of  the  costs.  It  was  similar  10  a  case  in  which  a 
Supreme  Court  commissioner  had  taxed  costs,  a 
considerable  portion  ot  which  might  be  coming 
o  himself.  There  was  abundant  remedy  for  this 
n  the  Supreme  Court,  which  had  full  power  to 
correct  the  evil.  It  was  not  a  case  lor  the  consi- 
deration of  the  convention  at  all;  but  merely  one 
n  which  an  error  has  been  committed  in  the  ex- 
action of  the  duties  of  an  officer,  (where  he  has 
acted  in  his  own  case,)  and  where  the  law  had 
already  provided  a  superintending  power  capable 
ot  correcting  the  error.  Several  officers  had  here 
taxed  costs  having  a  right  to  do  so,  and  Mr.  Hallett 
was  one  of  them.  It  was  very  improper,  no  doubt, 
aut  still  it  was  not  a  case  lor  the  Convention. — 
They  were  already  possessed  of  the  facts  in  the 
case;  and  if  any  action  was  necessary  to  prevent 
his  impropiiety  it  would  be  had  hereafter  with- 
out reference  to  the  charge  against  this  particular 
>fficer.  Let  it  lie  on  the  table,  and  the  general 
acts  in  the  case  can  go  to  be  considered  by  some 
appropriate  committee  he  eafter  without  the  ne- 
cessity of  a  reference.  But  there  were  means  of 
correction  elsewhere. 

Mr.  WARD  was  of  the  same  opinion.  They 
outfit  to  let  it  lie  on  the  table.  He  did  not  know 
n  what  manner  these  commissioners  were  appoint- 
ed—how  the  office  was  obtained,  but  evidently 
the  clerks  ot  the  supreme  court  do  not  apply  for 

them.     They  aie  given  by 

Mr.  MANN— Moat  certainly  they  do  apply  for 
these  offices  of  commissioners,  in  every  instance; 
they  make  use  of  every  means  to  obtain  this  ap- 
pointment: find  in  almost  every  other  case  the 
Clerks  of  the  Supreme  Court  are  sure  to  get  the 
appointment  of  commissioners ;  when  the  offices 
ought  to  be  given  to  other  citizens,  not  connected 
with  these  courts,  and  who  are  much  more  wor- 
thy and  deserving  of  them. 

Mr.  WARD  explained  that  the  present  case  was 
probably  one  where  Ihe  cost  of  two  or  three  com- 
missioners were  taxed  altogether;  and  Mr.  Hel- 
lett,  with  two  other  officers  all  legally  appointed, 
might  have  sat  in  judgment  upon  a  large  amount 
of  costs  tor  several  commissioners  in  the  aggre- 
gate, and  of  which  his  own  might  have  formed  a 
very  considerable  part.  He  presumed  this  to  be 
the" way  in  which  the  alleged  abuses  occurred. — 
But  apart  from  this,  the  matter  before  them  could 
only  be  regarded  as  a  private  grievance  of  Mr. 
Skidmore's,  and  out  of  this  he  makes  a  charge 
against  a  respectable  citizen,  who  is  not  here  to 
defend  himself;  and  it  would  be  exceedingly  un- 
dignified in  this  convention  to  notice  any  such  a 
matter.  Mr.  Skidmore,  as  had  beet;  shown,  had 
abundant  remedy  for  any  real  grievance  elsewhere; 
the  law  had  provided  a  proper  tribunal;  this  was 
not  it ;  and  the  convention  ought  not,  by  enter- 
taining this  memorial,  thus  to  sanction  this  attack 
upon  the  character  of  so  worthy  and  respectable  a 
citizen  as  Mr.  Hallet. 

Mr.  STOW  would  state,  in  order  that  hie  pre. 
vious  remark  might  not  be  misunderstood,  that  in 
one  point  he  entirely  concurred  with  the  gentle- 
men from  Westchester  and  Dutchess  (Messrs. 


281 


WARD  and  RUGGLES)  viz.,  that  charges  of  fraud 
ist  public  officers  were  not  proper  subjects 
for  the  consideration  of  that  body.  He  had  not 
intended,  nor  did  he  intend,  for  a  moment  to  im- 
pugn the  character  of  Mr.  Paxton  Hallett,  or  of 
any  other  man  who  was  not  there  to  defend  him- 
self. He  had  only  spoken  of  the  statements  in 
the  memorial,  and  of  what  he  considered  as  the 
proper  course  to  be  pursued  in  regard  to  that  do- 
cument. 

Mr.  STETSON  rose  (holding  in  his  hand  a 
small  bundle  of  manuscript  documents) .  He  said 
that  he  held  in  his  hand  some  dozen  resolutions 
which  had  been  referred  to  the  committee  of 
which  he  had  the  honor  to  be  chairman,  for  the 
purpose  of  consideration  ;  they  had  looked  over 
them,  and  decided  that  some  six  or  seven  of  them 
were  not  legitimate  subjects  for  the  action  of  that 
committee.  He  mentioned  them  to  show  that 
they  establish  this  axiom  ;  that  the  reference  of  a 
subject-matter  does  not  carry  with  it  a  duty  tore- 
port  thereon  !  It  is  merely  a  reference  of  a  cer- 
tain subject  for  the  consideration  of  a  committee, 
and  a  reference  only.  Now  the  arguments  that 
have  been  advanced  here  to-day,  on  the  contrary 
seem  to  anticipate  the  action  of  the  committee. 
The  committee's  action  on  a  memorial  proposed 
to  be  sent  to  them,  is  very  unwisely  anticipated 
here  in  the  speeches  of  certain  gentlemen.  What 
does  the  memorial  contain  ?  It  imports  a  charge 
made  by  an  individual  against  a  public  officer  in 
the  transaction  of  certain  duties  ;  showing  a  sys- 
tem that  is  liable  to  abuses ;  and  which  abuses 
certainly  can  be  corrected  by  the  action  of 
this  Convention;  which  they  are  fully  autho- 
rised to  take  cognizance  ot,  and  which  they, 
certainly  have  full  power  and  authority  and  dis. 
position  to  correct  and  put  a  stop  to.  This  me. 
morial  imports  a  charge.  Gentlemen  ask  to  have 
it  laid  on  the  table  or  withdrawn ;  but  the  with- 
drawal of  this  memorial  or  the  laying  of  it  on  the 
table,  does  not  do  away  with  the  charge.  If  all 
the  matters  that  have  been  or  shall  be  presented 
to  this  Convention  for  its  serious  consideration 
and  its  careful  action,  are  to  be  thrown  out,  arid 
not  to  be  entertained  tor  a  moment,  but  to  be  re- 
jected as  contemptuously  as  some  gentlemen  de- 
sire to  reject  this  memorial,  merely  because  they 
may  contain  certain  coarges  (real  or  only  im- 
plied) against  various  individuals,  then,  the  gravest 
abuses  ihat  now  exist  and  have  existed  for  years 
in  this  State,  will  not  only  be  not  corrected,  but 
they  will  not  even  be  considered  by  this  Conven- 
tion. And  that  is  the  reason  why  the  Convention 
ought  not,  by  a  debate  of  this  character,  to  antici 
pate  the  action  of  any  committee  upon  any  sub- 
ject ibut  is  proposed  to  be  referred  to  it.  It  is 
the  reason  why  the  Contention  should  not  discuss 
the  propriety  of  a  constitutional  provision  before 
they  had  a  report  upon  the  subjoct. 

Mr.  TILDEN  said  that  if  any  gentleman  had 
shown  or  asserted  that  th's  memorial  contained 
nothing  which  called  for  the  action  of  any  com- 
inittee  of  this  Convention,  there  might  be  a  rea- 
son for  laying  it  on  the  table.  But  the  distinguish 
ed  gentleman  from  Dutchess  (Mr.  RUGGLES)  had 
not  gone  further  than  to  express  doubts  whether  it 
contained  any  such  thing — a  prevailing  impres. 
sion  that  it  does  not.  It  there  was  any  doubt,  it 
certainly  ought  to  be  referred.  A  committee 

18 


could  more  conveniently  examine  thequestion  than 
the  Convention  ;  and  for  this  reason  propositions 
.ire  daily  referred  which  probably  do  not  require 
any  Constitutional  provisions,  and  in  regard  to  the 
merits  of  which  the  Convention  express  no  opin- 
ion. 

Mr.  WARD  would  ask  the  gentleman  from  New 
York, how  Mr  H ALLETT.supposing  that  he  should 
be  injured  by  this  reference — how  he  was  to  ob- 
tain redress — and  place  himself  again  in  the  proud 
and  honorable  position  which  he  occupied  before 
the  community  at  present. 

SEVERAL  VOICES  Mr.  Hallett  can  be  heard 
in  person  before  the  committee. 

Mr.  TILDEN  would  ask  the  honorable  gentle- 
man from  Westchester  (Mr.  WARD)  whether  Mr. 
Hallett  was  not  more  likely  to  be  injured  by  his 
friends  refusing  to  refer  this  memorial  for  inves- 
tigation, than  by  having  it  referred.  It  was  noto- 
rious that  great  evils  and  abuses  existed  in  the 
assessments  for  opening  or  improving  streets  in 
the  cities.  They  had  been  the  subject  of  much 
complaint — had  been  brought  before  the  Conven- 
tion, and  a  standing  committee  appointed  to  con- 
sider them  and  other  questions  of  municipal  ad- 
ministration. A  memorial  from  a  respectable  citi- 
zen of  New  York,  alledging  an  abuse  in  this  sys- 
tem is  presented,  and  instead  of  quietly  sending 
it  to  the  committee  having  charge  of  the 
general  subject,  gentlemen  would  refuse  to 
refer  it  at  all— would  deny  it  any  considera- 
tion whatever!  The  object  of  the  memorial, 
if  he  understood  it,  was  not,  as  gentlemen 
seemed  to  suppose,  to  obtain  redress  for  a  private 
wrong,  but  to  point  out  an  evil  which  could  Be 
prevented  for  the  future.  Whether  any  such  evil 
existed,  and  if  it  did,  whether  it  were  a  fit  sub- 
ject for  constitutional  rather  than  legislative  pro- 
vision, he  did  not  know  ;  these  were  questions  to 
be  investigated  and  decided  by  a  committee.  He 
did  not  know  that  the  memorial  inculpated  a  pub- 
lic officer,  as  was  alledged  ;  but  if  it  did,  so  long 
as  it  presented  or  might  present  matter  for  the 
action  of  this  body,  it  was  entitled  to  a  respectful 
consideration.  He  expressed  no  opinion  as  to 
the  conduct  or  motives  of  the  officer  referred  to, 
both  of  which  had  been  unnecessarily  introduced 
into  this  discussion.  .  He  knew  nothing  about 
them.  He  would  assume  that  both  were  right. — 
Still  the  reference  ought  to  be  made.  He  thought 
it  should  be  to  the  committee  on  municipal  cor- 
porations, but  as  the  gentleman  who  introduced 
the  memorial  preferred  a  different  direction,  he 
should  not  object. 

Mr.  BROWN  really  thought  that  certain  gen- 
tlemen exhibited  an  unnecessary  degree  of  alarm 
upon  this  subject.  For  his  own  part  he  did  not 
understand  the  memorial  to  impute  anything 
wrong,  any  crime,  to  Mr.  Hallett.  Gentlemen 
were  assuming  what  really  did  not  have  an  exist- 
ence. 

Mr.  RICHMOND :  No,  the  memorial  only 
showed  that  the  system  of  shaving  was  about  as 
fashionable  in  the  marble  chambers  of  the  City 
Hall,  as  it  was  in  the  high  ways  and  by  ways  of 
Wall  street.  (Much  laughter.) 

Mr.  SHKPARD  was  very  unwilling  to  take  up 
the  valuable  time  of  the  convention  for  a  single 
moment.  But  in  relation  to  this  matter  he  had 
Ven  placed  in  a  very  peculiar  position,  by  the  re- 


282 


marks  ol  gentlemen  who  had  preceded  him,  and 
it  was  due  to  himself  to  make  a  few  remarks  in 
explanation.  The  gentleman  from  Orange  (Mr. 
BROWN)  had  referred  to  him  (Mr.  S. )  in  such  a 
manner  as  to  lead  to  the  inference  that  he  was  a 
warm  personal  and  political  friend  of  Mr.  HAL- 
LETT'S.  But  if  he  had  been  so,  he  trusted  that  he 
had  at  least,  too  high  a  regard  for  his  position  as 
a  member  of  this  body— too  keen  a  sense  of  his 
duties  as  a  member  of  society — too  high  a  regard 
for  his  character  as  a  man — to  allow  any  consid 
eration  of  that  nature,  or  indeed  of  any  other  than 
his  duty  to  his  constitutnts  and  his  country  to  in- 
fluence his  conduct  in  the  proceedings  of  that 
Convention.  The  gentleman  from  Orange  (Mr. 
BROWN)  had  said  that  gentlemen  were  assuming 
what  did  not  in  reality  exist  -T  that  (his  memorial 
did  not  actually  impute  anything  wrong  to  Mr. 
HALLETT  Now,  he  would  ask  what  was  the  lan- 
guage of  the  memorial  ?  Why  that  "  the  said  Wil- 
liam Paxton  Hallett,  appeared  before  himself,  and 
awaided  to  himself  large  sums  of  money,  on  the 
ground  of  nominal  services."  Was  not  this  an  im- 
putation as  gross  as  could  be  put  forward  against 
any  gentleman  of  character  and  standing  in  the 
community?  It  was  as  direct  an  imputation  as 
could  be  advanced  If  Mr  SKIDMORE'S  conceiv- 
ed himself  injured  or  unjustly  treated  by  Mr.  HAL 
LETT,  he  had  a  clear  legal  remedy.  He  could 
have  appealed  to  the  Supierne  Court  for  a  revision 
of  the  taxation  of  the  costs  in  this  case.  Why, 
then,  did  he  not  go  to  a  tribunal  piovided  by  you; 
own  laws  for  the  remedy  ol  any  and  all  of  these 
alleged  abuses  ?  No.  But  he  conu>9  here  with  a 
statement  of  his  grievances.  Now  he  either  has 
or  has  not  been  before  that  court ;  and 

Two  OR  THREE  MEMBERS  :  He  did  apply  to 
the  supreme  court. 

Mr.  SHEPARD :  Well,  then  it  is  very  evi- 
dent that  they  decided  against  him,  and  that 
therefore  we  have  nothing  to  do  with  it.  There 
certainly  is  no  appeal  from  that  court  to  this 
body.  It  is  an  adjudicated  matter ;  and  we  ought 
not  to  take  cognizance  of  it.  If  Mr.  Skidmore 
has  not  gone  to  that  court,  it  was  his  duty  to  have 
done  so  in  order  to  obtain  his  legal  and  proper 
redress,  and  if  he  has  gone  there,  it  is 
very  evident  that  they  have  considered  that 
he  has .  not  good  ground  of  complaint,  and 
therefore  have  decided  against  him,  or  he 
would  not  have  come  to  this  body  with  his 
complaints  in  the  endeavor  to  obtain  redress  for 
fancied  grievances.  And  therefore,  in  either  case 
this  body  can  have  nothing  to  do  with  the  memo- 
rial. And  what  specific  charges  does  he  attempt 
to  make  out  after  all.  He  says  that  the  expenses 
of  these  courts  are  enormous.  How  are  they 
enormous  ?  Does  he  state  ?  Not  at  all.  There 
are  no  particulars  given  by  this  petitioner,  but 
only  a  general  allegation  arising  out  of  some  pri- 
vate grievances;  and  if  we  are  to  entertain  these 
private  griefs  from  every  individual  in  the  state, 
then  the  Convention  would  be  literally  run  down 
with  details  of  private  grievances,  and  vague 
statements  of  alleged  abuses  arising  from  what 
will  be  termed  over  assessments.  He  thought 
that  the'best  course  for  the  Convention  to  pursue 
would  be  to  allow  the  petitioner  to  have  leave  to 
withdraw  his  memorial.  If  we  entertain  it,  what 
are  the  committee  to, do  with  it  ?  Are  they  to  re- 


port specially  upon  it?  No,  that  they  cannot  do — 
the  charge  is  made — the  charge  is  referred,  and 
the  acquital  can  never  follow  either.  Again, 
it  should  be  remembered,  that,  in  connec- 
tion with  one  branch  of  the  subject,  the 
whole  matter  of  the  complaints  is  already  under 
full  consideration  by  one  of  the  committees;  how 
assessments  are  to  be  made — and  how  individuals 
are  to  be  taxed ;  and  by  whom  the  amount  of 
damages  is  to  be  assessed ;  as  far  as  regards  this 
branch  of  the  complaint,  therefore,  in  the  memo- 
rial, the  subject  is  already  provided  for.  He 
prays  that  this  exercise  of  power  may  be  restrain- 
ed. What  exercise  of  power  ?  The  mode  of 
taxation  of  these  costs.  Well,  that  is. a  matter 
which  one  of  the  committees  have  already  under 
consideration.  But  he  would  trouble  the  commit- 
tee no  farther ;  he  thanked  them  from  the  bottom 
of  his  heart,  for  the  patience  with  which  they  had 
listened  to  him  ;  he  would  not  have  spoken,  but 
that  he  felt  he  was  personally  involved  by  the 
course  of  the  debate ;  and  the  best  way  in  which 
he  could  evince  his  gratitude  to  the  Convention 
for  the  kind  indulgence  they  had  extended  to  him 
would  be  by  taking  his  seat, 

Mi.  HAKR1SOIN  staled  in  a  very  few  words  that 
he  was  in  favor  of  the  reference. 

Mr.  CROOKER  said  that  the  question  was  not 
whether  this  memorial  contained  an  imputation 
upon  Mr.  Hallett  on  not;  for  they  came  not  here 
for  the  purpose  of  considering  any  such  matter. — 
But  they  came  there  tu  consider  and  redress  the 
grivances  that  were  complained  of,  or  that  were 
lound  to  exist  in  any  or  every  corner  of  the  State ; 
and  to  prevent  their  recurrence  for  the  future.  He 
did  not  care,  as  a  mere  abstract  question,  whether 
these  alleged  abuj-es  had  taken  place  under  the  color 
of  the  law,  or  in  defiance  cf  it;  whether  frauds  had 
been  legally  or  illegally  committed.  They  were 
then  present  in  that  Convention,  not  to  apply  re- 
medies for  the  past,  but  to  provide  remedies  for 
the  future.  The  complaint  or  abuse  alleged  here 
was,  that  the  Clerk  had  taxed  his  own  bill  of  costs 
arising  out  of  his  acting  as  a  coramisbtoner — he 
receiving  both  appointments  from  the  Supreme 
Court  judges.  That  mode  of  appointment  con- 
cerns  the  present  .system  of  the  judiciary.  And  it 
becomes  a  very  important  matter  to  redress  these 
grievances,  or  rather  to  prevent  any  of  them 
arising  hereaft<  r  out  of  the  m  de  of  appointing  the 
commissioners  for  the  assessment  of  taxes  in 
opening  streets,  &c.  They  came  to  that  conven- 
tion (o  act  upon  that.  And  he,  for  one,  was  de- 
sirous to  take  away  the  power  of  these  appoint- 
ments from  the  judges  ol  the  Supreme  Court,  and 
place  it  somewh  re  else.  And  he  thought  it 
w:ould  be  best  to  refer  that  subject  to  committee 
No  7. 

Mr.  FORSYTH  said  that  if  there  was  anything 
in  the  existing  Constitution  which  rendered  the 
conduct  of  Mr.  Haflett  in  regard  to  this  matter  il- 
legal or  improper — (presuming  the  statements 
made  in  this  memorial  were  true)  then  the  me- 
morial might  perhaps  be  considered  a  proper  sub- 
ject for  reference.  But  there  was  not.  Neither 
was  there  anything  in  the  law  apparently,  to  for- 
bid the  alleged  action  of  Mr.  Hallett.  Now, 
there  were  many  abuses  that  were  justified  under 
color  of  the  law  ;  but  if  the  alleged  facts  in  this 
memorial  are  true,  then  there  has  been  a  fraud 


283 


aitted  by  Mr.  Hallett  upon  Mr.  Skidmore, 
and  he  is  liable  for  the  same  to  the  criminal  law  ; 
this  man  says  he  has  h?d  his  money  taken  from 
him  by  a  fraud  ;  well,  the  Convention  certainly 
cannot  take  cognizance  of  that;  for  as  well  might 
a  man  who  has  had  his  money  stolen  from  him  on 
the  highway,  come  here  and  ask  redress  at  our 
hands,  as  the  complainant  in  this  case.  He  should 
therefore  move  to  lay  the  memorial  on  the  table. 
Mr.  SIMMONS  hoped  the  gentleman  from  Ul- 
ste*r  (Mr.  FORSYTH)  would  withdraw  his  motion 
for  a  few  minutes. 

Mr.  FORSYTH  consented  to  do  so. 
Mr,  SIMMONS  said  that  one  great  and  leading 
feature  ought  to  be  observed  in  all  petitions  ;  and 
that  was  an  utter  avoidance  of  all  personalties. 
Now,  in  relation  to  this  matter  he  had  supposed 
that  it  arose  from  some  error  complained  of  in  (he 
taxing  of  a  bill  of  the  attorney  for  the  corpora. 
lion.     He  (Mr.  S.)  could    not    see  how  it    could 
have  occurred  in   any   other   way,  than  through 
the   taxing   of  the   bill   of  ihe   Attorney  for   the 
Corporation   including  the   commissioner's   fees; 
and    that  he  (the  Commissioner)   had   taxed  this 
bill  himself.    He  could  not  suppose  that  the  mere 
bill  of  the  commissioner's  fees  had  been  present- 
ed to  that  commissioner,  and  that  he  had  himse4f 
taxed  his  own  bill.     Now,  it  certainly  ought  to  be 
part   of   the    constitutional    law,    that    no   man 
should  be  allowed  to  be  a  judge  in  his  own   case; 
and  although  that  has  been  cc  osidered  of  the  law, 
yet  it  has  been  decided  by  judges  that  it  as  part  of 
the  unwritten  Constitutional   Law.     Now   what 
he  (Mr   S.)  desired,  was  to  see  this   form  part   of 
the  written    constitutional  law  of  the  State.     He 
considered  that  ilia  subject  matter  of  this  petition 
was  most  certainly  worthy  of  a  reference  ;  but   it 
ought   to   have  been    made  more   general   in    its 
statements.     One  point  that  ought  to  have   been 
stated  was,  whether  Mr.   Hallett  had   been    taken 
off  his   guard  or  not,  by  a  request  on  the   part  of 
the  parties,  that  he  would  consent  to  act  as  he  had 
done  or   in  consenting  to  the  course  of  action   in 
this  case.     He  had  known  of  some  such    cases. — 
All  knew  that  complaints  had   been  made  before 
in  relation  to  these  matters — it  was  hardly  neces- 
sary to  go  into  a  long  examination  of  this  matter ; 
their  tables  had  been  loaded  since  the  commence- 
ment of  the  session  with   these  municipal   books 
to  which  reference  has  been  more  than  once  made 
in  this  memorial  of  Mr.  Skidmore's.     The  tables 
of  the  Court  of  Eirors,  and  of  other  courts  thro'- 
out  the  State,  had  for  some  time  past  been  loaded 
with  detailed  accounts  of  these  various  controver- 
sies ;  and    he  hoped    that  the  tables   of  members 
here   were  not  to  be  loaded  down  with  them   all 
over  again.     And  as  this  memorial  embraced  per 
sonal    matters,  which,  if  they  should   be  referred 
to  a  committee,  would  necessarily  involve  a  hear- 
ing of  both  parties,  he  thought  perhaps   it   would 
be  best   to  let  the  subject  lie  on  the  table  for   the 
present.     There  might  be  some  understanding  on 
the    part  of  members,  as   to   the   subject    of  any 
evils    arising   out  of  the  mode  of  appointment  of 
these   officers,  or  any  abuses  that  they   would    be 
able  to  exercise  from  holding  two  or  more  offices  ; 
there  might  be  some  general  understanding  as   to 
taking  these  points  up  in  committee  hereafter, 

Mr.  FORSYTH  said  that  his  remarks  had  been 
made   not  upon  any  presumption,  or  aupposable 


case  that  might  or  might  not  arise,  but  on  the 
statement  of  alleged  facts  set  forth  in  the  memo- 
rial ;  and  he  therefore  moved  again  to  lay  it  on 
the  table. 

Mr.  MANN  said  :  And  I  give  you  all  fair  DO. 
tice.  that  if  it  is  laid  there,  that  I  shall  move  to 
call  it  up  every  day  till  the  close  of  the  session, 
unless  it  is  called  up  before. 

The  mo'iori  to  lay  it  on  (he  table  was  then  put 
and  lost. 

Mr.  BASCOM  thought  that  the  proper  reference 
of  it  was  to  the  judiciaiy  committee.  They  had 
to  enquire  into  the  mode  of  compensation  of  clerks 
to  the  Supreme  Courts.  Now,  it  was,  and  had 
long  been  notorious  to  all,  that  the  abuses  perpe- 
trated under  the  present  system  were  very  gene- 
ral ;  the  clerks  of  these  courts  had  been  accus. 
tomed  to  tax  their  own  cos^s  up  te  the  year  1840, 
throughout  the  State.  And  up  to  that  period  the 
great,  bulk  of  those  costs  had  been  taxed  by  the 
clerks  themselves.  Now,  it  was  very  evident,  in 
the  case  before  them,  thai  Mr.  Hallett  had  only 
followed  out  the  general  practice  of  these  clerksj 
but  he  had  applied  the  system  to  a  new  class  of 
cases  peculiar  to  the  city  of  New- York.  The  evil 
here  complained  of  was  only  one  of  the  results  of 
allowing  clerks  to  receive  fees  and  perquisites. — 
This  point,  at  least,  called  for  the  ac;ion  of  the 
Convention.  The  proper  reference  for  this  he, 
therefore,  conceived  to  be  the  judiciary  commit- 
tee j  that  body  had  to  investigate  and  report  upon 
the  power  ot  appointment  of  the  judges,  and  of 
the  mode  of  compensation  and  duties  of  the  clerk's 
courts;  and  he  considered  a  reference  of  this  me- 
morial to  the  judiciary  committee  as  the  proper 
one, 

Mr.  WARD  again  expressed  his  earnest  hope 
that  the  Convention  would  not  consider  this  me- 
morial a  proper  subject  for  its  consideration. — 
And  he  would  renew  the  motion  to  lay  it  on  the 
table.  And  on  this  he  called  for  the  ayes  and 
noes. 

Mr.  STETSON  asked  if  there  had  been  any  in- 
tervening business  since  the  motion  to  lay  this  on 
the  table  was  rejected,  that  would  justify  this 
renewed  motion.  The  motion  to  lay  on  the  table 
certainly  had  been  rejected. 

Mr.  MANN  :  Yes,  it  has  been  rejected  twice. 

The  PRESIDENT :  The  debate  has  been  con- 
tinued since  the  last  vote. 

The  question  on  the  call  for  the  ayes  and  noes 
was  then  put. 

The  PRESIDENT:  Not  a  sufficient  number  up. 

The  ayes  and  noes  were  not  ordered. 

The  motion  to  lay  on   the  table  was  then  put 
and  lost ;    and   the   memorial   was,   after  a  two 
hour's  debate,  referred  to  the  judiciary  committee. 
BILLS  TO  PASS  ONLY  BY  A  MAJORITY. 

Mr.  W.TAYLOR  called  up  his  resolution  which 
he  ottered  yesterday,  and  which  was,  by  his  con« 
sent,  laid  on  the  table.  It  is  as  follows: 

Resolved,  That  it  be  referred  to  committee  No.  2,  to  in- 
quire into  th-  expediency  of  providing  that  whenever  a 
bill  shall  have  been  r«ad  for  the  thirl  time  in  either  House 
of  the  Legislature,  no  other  business  shall  be  done  by  the 
House  until  the  question  upon  that  bill  shall  be  decided, 
and  that  such  question  shall  not  be  recons;dered  during 
th>-  session,  and  also  that  every  bill,  upon  its  third  reading, 
shall  be  read  in  lull  and  at  length. 

Mr.  RICHMON7D  then  moved  that  the  amend- 
ment which  he  offered  yesterday,  and  which  had 


284 


been  accepted  by  the  mover,  should  be  taken  u 
also.  It  was  to  this  effect — that  all  bills  passe 
by  the  Legislature  hereafter,  shall  be  passed  onl 
by  a  majority  of  the  members  of  both  branches  i 
all  cases ;  and  that  this  s-hall  be  ascertained  b 
the  calling  of  (he  ayes  and  noes  and  the  recordin 
of  them  in  all  cases. 

The  resolution  with  this  amendment  was  then 
adopted. 

THE  LIMITING  OF  DEBATE. 

Mr.  SWACKHAMER  offered  a  resolution  tha 
in  order  to  save  time,  and  prevent  useless  debate 
all  motions  of  reference  to  standing  committee 
should  hereafter  be  taken  without  debate ;  and  he 
would  include  his  present  motion. 

A  count  was  called  for  on  this.  Only  26  votet 
aye.  Lost. 

RECONSIDERING  A  RULE. 

Mr.  SHEPARD  gave  notice  that  on  Wednesday 
next  he  should  move  for  a  reconsideration  of  th< 
vote  of  this   Convention   on   the   passage   of  th< 
rule  that  to  "strike   out  and  insert  should  there 
after  be  one  motion." 

WOMEN  AND    PARSONS    TO    BE    VOTERS   AND 
HOLD  OFFICE. 

Mr.  HARRIS  said  that  some  days  since  he  had 
offered  a  somewhat  important  memoiial,  very  nu. 
merously  and  respectably  signed  by  some  of  the 
first  citizens  of  Albany;  it  was  then  laid  on  the 
table.  He  now  called  lor  its  consideration.  If 
related  to  thedisfranchisement  of  clergymen  from 
holding  office,  and  of  women  from  voting  at  elec- 
tions. 

On  the  motion  of  Mr.  H.  the  first  part  of  it 
was  referred  to  the  committee  on  the  judiciary, 
and  the  last  part  to  committee  No.  4. 

•Some  conversation  here  ensued  in  relation  to 
the  noise  that  arose  from  the  travel  of  wagons 
over  the  adjoining  streets,  when  without  taking 
any  action  thereon,  the  matter  was  dropped. 

EXPENSES  OF  THE  LEGISLATURE. 

A  communication  was  received  from  the  Comp- 
troller relative  to  the  sums  of  money  received  by 
the  Legislature  for  pay  and  mileage  during  the 
sessions  of  1841,  '2>  '3,  '4,  and  1845. 

It  was  referred  to  committee  No.  1. 
CAPITAL  PUNISHMENT. 

A  communication  was  received  from  James 
Richmond  of  Columbia  county  relative  to  an  en- 
quiry into  the  expediency  of  abolishing  Capital 
Punishment.  Referred  to  the  Judiciary  commit- 
tee. 
THE  POWERS  AND  DUTIES  OF  THE  EXECUTIVE. 

The  Committee  of  the  Whole,  Mr.  CHAT- 
FIELD  in  the  Chau,  resumed  the  consideration 
of  the  report  of  Committee  No.  5. 

The  third  section  having  been  read  as  follows: 
^  3.  The  Governor  and  Lieut  Governor  shall  be  elected 
at  the  times  and  places  oi  choosing  members  of  the  Legis- 
lature. The  persons  respectively  having  the  highest  num- 
ber of  votes  tor  Governor  and  Lieut,  Governor,  shall  be 
elected:  but  in  case  two  or  more  shall  have  an  equal  and 
the  highest  number  ol  votes  for  Governor,  or  for  Lieut. 
Governor,  the  two  houses  of  the  Legislature  shall,  by 
joint  ballot,  choose  one  of  the  said  persons  so  having  an 
equal  and  the  highest  number  of  votes  lor  Governor  01  Lt. 
Govtrnor. 

Mr.  DANA  moved  to  insert  after  the  words 
h  Legislature  shall,"  the  words  "immediately  af- 
ter their  meeting." 


Mr  PATTERSON  thought  the  section  was 
well  enough  as  it  was.  Nobody  supposed  that  the 
old  Legisjature  would  convene  alter  the  elec- 
tion of  the  new  one.  They  could  not  do  it  unless- 
the  Gov  then  in  office  should  require  them  to  do 
it.  This  proposition  was  in  the  present  constitu- 
tion and  had  always  been  understood. 

Mr  CROCKER  thought  a  better  amendment 
would  be  '•  =it  the  next  annual  session"— and  tbi& 
amendment  prevailed. 

Mr.  JORDAN  moved  to  add  the  woid  "  forth 
with"  afier  "  session."    Agreed  to. 

The  4th  section  was  then  read  a&  follows : 

^4.  The  Governor  shall  be  general  and  commander-in 
chief  ol  all  the  militia,  and  admiral  of  the  navy  of  the 
State.  He  shall  have  power  ta  convene  the  Legislature 
(or  the  Senate  only)  on  extraordinary  occasions.  He 
shall  communicate  by  message  to  the  Legislature  at  every 
session,  the  condition  of  the  State  ;  BBC)  recommend  such 
matters  to  them  as  he  shall  judge  expedient.  He  bhall 
transact  all  necessary  business  with  the  officers  of  the  go- 
vernment, civil  and  military.  He  shall  expedite  all  such 
measures  as  iray  be  resolved  upon  by  the  Legislature,  and 
shall  take  care  that  the  laws  are  faithfully  executed.  He 
shall  receive  for  his  services  the  following  compensation, 
viz:  Four  thousand  dollars  annually ,  to  be  paid  in  equal 
quarterly  payments.  Six  hundred  dollars  annually,  to  be 
paid  in  equal  quarterly  payments,  for  the  cemjiensa  ion 
of  his  private  secretary;  and  the  rent  for,  and  the  taxes 
and  assessments  of  his  dwelling  house,  shall  be  paid  by  the 
State. 

Mr.  TAGGART  moved  to  amend   by   striking 
out   all  atter  the  word  '*  executed,"  and  insert  the 
anguage  of  the  present  "•Consti  ution:""He  shall, 
at  stated  times,  receive  tor  his  services  a  compen- 
sation which  shall  neither  be  increased  nordimin- 
shed   during  the  term   lor  which  he   shall  have 
been  elected."     Mr.  T.  would  not  bind  up  theac- 
ion  of  the   people  in  a  matter  of  this  kind.     Ifc 
was  not  the  amount  of  the  salaries  ol  public  offi- 
cers in  regard  to  which  there  was  complaint,    it 
was  their  perquisites  or  fees,  the  amount  of  which 
hey  had  no  knowledge.    The  committee,  also,  he 
bought,  might  have  discharged  their  duty  with- 
out reporting  a  specific  compensation,  but  a  gene- 
ral provision   for  that  purpose,  leaving  it   for  the 
>gislature  to  adjust  the  details.     He   thought   it 
would  be   found   inexpedient  to  fix  the  salary  or 
ompensation   in  the   constitution,  and  he   there- 
ore  proposed  his  amendment. 

Mr.  MORRIS  said  the  Convention  required  the 
committee  to  present  the  salary  to  be  paid  to  the 
jroverncr.  They  had  therefore  turned  to  the  sta- 
utes  to  ascertain  what  he  did  receive  now,  and 
he  part  of  the  section  which  the  gentleman 
ought  to  strike  out  was  taken  fr<m  the  existing 
aws  of  the  State.  He  gave  as  his  individual 
•pinion,  that  il  would  be  invariably  better  if  the 
alary  of  each  and  every  officer  to  be  appointed 
mder  this  Constitution  should  be  incorporated  in 
he  instrument  itself,  and  that  so  far  as  practice- 
le,  the  question  should  be  submitted  to  the  peo~ 
le  with  the  Constitution.  Apprehension  had 
>een  expressed  that  if  that  was  done,  it  might  em- 
arrass  the  adoption  of  the  Constitution  itself,  be- 
ause  the  people  would  then  see  the  immense 
urns,  in  the  way  of  salaries,  that  they  are  com- 
piled to  pay  for  the  support  ot  government,  and 
night  object  to  it.  He  did  not  think  so,  a:..d  be. 
ieved  that  the  people  were  ever  desirous  to  pay  a 
roper  compensation  to  their  officials,  and  more 
eady  to  do  it  than  their  representatives  in  the 
egislature.  There  were  certain  officers  whe 


285 


should   receive   a  full  compensation,  and  among 
them  the  Governor,  who  should  not  receive  a  less 
compensation    than    that   provided  for  here.     H 
apprehended  that  when  the  Convention  had  done 
what  he  presumed  they  would — tied  up  the  pow 
erofthe  legislature  and    limited  their  discretion 
to  pass  such  laws  as  they  chose — men  sent  to  tha 
body  having  but  little  to  do,  would  exert  them- 
selves  for  the  purpose  of  reducing  these  ccmpen- 
sations.     He  thought,   therefore,   that  the  people 
themselves,  en  masse,   were   the   persons   to  say 
what  they  would  pay  their  officers,  and  would  be 
better  satisfied   to   have  the   salary    fixed  in  the 
Constitution.     It  was   for  these   reasons  that   the 
committee  presented  the  repoit  they  did. 

Mr.  LOOMIS  could  see  no  reason  why  the  sal 
ary  of  the  Governor  and  the  Legislature  should 
be  fixed  by  the  constitution  which  did  not  apply 
to  other  officers,  and  he  was  prepared  to  go  for 
the  amendment  of  the  gentleman  from  Genesee, 
and  to  strike  out  the  provision.  And  it  was  on  a 
principle  the  very  opposite  to  that  assigned  by  the 
chairman  of  the  committee  for  leaving  it  in.  It 
was  a  subject  upon  which  the  people  themselves 
through  the  legislature,  could  at  a  future  time  ex- 
press themselves  more  clearly  and  distinctly ,than 
they  could  even  in  a  direct  vote  on  the  constitu 
tion.  He  imagined  the  rejection  or  adoption  of 
that  instrument  did  not  depend  on  such  a  question 
as  this,  and  that  they  would  not  express  their  pre- 
ference for  one  mode  or  the  other  in  any  consider- 
able degree.  The  minds  of  many  would  differ  on 
this  point,some  would  think  the  compensation  too 
high  and  others  too  low,  and  yet  the  same  men 
preferring  the  new  instrument  to  the  old,  would 
vote  for  it,against  their  own  judgments  in  the  oth 
er  resp  3ct.  Whereas  if  it  was  left  to  future  legis- 
latures they  could  arrange  the  salary  in  accord- 
ance with  the  exigencies  of  the  times,  and  the 
will  of  the  people.  Besides  he  desired  to  have 
left  to  the  legislature  such  matters  as  appertained 
properly  to  legislation,  and  would  enact  none  of 
them  in  the  constitution.  The  proposition  to 
prevent  the  legislature  from  altering  the  salary  of 
the  Governor,  then,  incumbent  of  the  office,  was 
very  proper,because  the  Executive  might  exercise 
an  influence  upon  them  through  his  high  office  in 
the  matter.  But  with  great  propriety  they  might 
consider  the  compensation  to  be  allowed  thereaf- 
ter. He  hoped  further  that  in  framing  this  Con- 
stitution every  matter  that  was  not  necessarily 
embraced  within  it,  would  be  left  out,  so  as  to 
leave  the  question  as  directly  as  possible  upon  the 
amendments  that  are  necessary.  He  desired  to 
see  reforms  adopted  in  this  Constitution  which 
he  apprehended  might  be  hazarded  by  proposing 
too  many  of  these  restrictions  which  might  just  as 
well  as  not  be  left  to  the  legislature,  especially 
where  such  laws  might  be  required  to  be  altered 
during  the  existence  of  the  Constitution.  It 
might  be  that  at  times  the  people  would  desire  to 
raise  or  to  reduce  the  salary,  and  this  could  be  bet- 
ter done  through  the  Legislature. 

Mr.  RHOADES  was  in  favor  of  the  proposition 
of  the  gentleman  Irom  Seneca,  and  for  the  addi- 
tional reason  that  there  was  a  disposition  among 
the  people  to  divest  the  Executive  of  an  impor- 
tant part  of  his  powers  and  duties,  which 
might  make  it  less  important  that  his  salary  should 
be  so  large.  This  section  also  fixed  the  salary  of 


his  private  Secretary.  And  perhaps  ii  was  not 
too  high,  but  if  the  Executive  was  divested  of  the 
appointing  power,  the  necessity  for  such  an  assis- 
tant would  be  very  much  diminished.  He  was 
opposed  to  the  fixing  of  salaries  in  the  Constitu- 
tion, as  he  thought  it  might  be  much  better  left 
to  the  Legislature.  Again,  it  might  be,  as  some 
of  us  hoped,  that  the  time  was  not  far  distant 
when  it  would  be  requisite  for  the  Governor  to 
reside  further  west,  where  he  could  live  at  a  much 
less  expense,  and  where  the  habiis  of  the  people 
were  much  more  simple.  Perhaps  it  might  be 
where  his  friend  from  Oneida  resided,  (Utica;) 
or  perhaps  where  he  (Mr.  R.)  lived,  (Syracuse,) 
and  he  hoped  it  might  be  so. 

Mr.  RICHMOND— Perhaps  he  would  be  able 
to  live  there  without  any  money.  There  is  salt 
enough  to  save  him. 

Mr.  RHOADES— Salt  had  saved  the  State  a 
vast  amount,  and  may  yet  save  to  it  the  expenses 
of  a  Governor.  Salt  Point  might,  (said  Mr.  R.) 
if  the  Capital  was  located  there,  save  in  the  sala- 
ries now  paid  to  the  officers  of  government  an 
amount  very  important  to  the  people.  He  did  not 
know  how  much  importance  might  be  attached  to 
this  argument,  but  he  felt  bound  to  allude  to  it 
as  an  event  likely  to  take  place. 

Mr.  1 ILDEN  hoped  that  the  amendment  would 
not  prevail.  If  the"  Convention  was  not  going  to 
fix  the  salary,  as  he  presumed  it  would  not,  he 
hoped  that  it  would  not  fix  a  minimum  or  a  maxi- 
mum to  the  amount  which  the  Legislature  might  be 
authorized  to  pay.  He  did  not  suppose,  when  the 
subject  of  the  compensation  of  the  Governor  was 
referred  to  the  committee,  that  it  implied  any 
instruction  to  them  to  report  a  particular  compen- 
sation, but  merely  what  provision  was  necessary 
and  proper  to  be  inserted  in  the  Constitution  in 
regard  to  the  subject.  He  thought  they  would 
have  answered  the  object,  as  well,  if  they  had 
reported  the  general  provision  in  the  existing  Con. 
stitufion,  that  the  compensation  of  the  Governor 
should  not  be  altered  while  his  term  was  unexpir- 
ed,  although  he  supposed  that  the  whole  subject 
was  before  the  committee,  and  that  they  acted 
very  properly  in  making  their  report  as  they  did, 
it  being,  in  their  judgment,  necessary  to  specify 
the  compensation.  It  might  be  expedient  to  fix 
the  salaries  of  the  judge?,  but  he  was  clear  that 
'n  all  other  cases  the  matter  would  be  most  \vise- 
y  lett  to  the  Legislature. 

Mr.  WOOD  moved  to  amend  so  as  to  provide 
hat  in  no  case  should  the  Governor  receive  more 
than  four  thousand  dollars  annually. 

Mr.  SALISBURY  thought  that  the  salary  should 
be  fixed  at  what,  in  any  supposable  case  whatever, 
would  be  a  fair  and  just  compensation,  and  he 
toped  that  some  such  amendment  would  be  adpted. 
The  amendment  did  not  cover  a  sufficient  amount 
o  pay  all  the  Governor's  expenses  for  rent  of 
dwelling  furniture,  and  for  the  pay  of  his  Private 
Secretary.  He  was  not  in  favor  of  reducing  his 
salary,  for  he  was  as  poorly  paid  as  any  officer  in 
he  State.  The  county  clerks  of  some  of  the 
counties  got  more  than  he  did— that  of  Erie,  for 
nstance,  who  received  $6,000  per  annum.  He 
would  suggest  to  the  gentleman  that  the  amount 
.vas  not  farge  enough. 

Mr.  WOOD  was  willing  to  make  it  any  amount 


286 


that  would  be  deemed  reasonable.  All  he  desired 
was  to  provide  tor  some  fixed  compensation. 

Mr.  TILDEN  thought  that  even  if  the  Go- 
vernor was  divested  of  a  large  share  of  his 
appointing  power,  that  in  a  state  like  this, 
with  its  accumulating  business,  he  would 
have  as  much  to  do  as  he  could  attend 
to;  He  had  not  yet,  heard  any  proposition  to 
divest  him  of  the  pardoning  power,  or  to  vest  that 
disagreeable  duty  in  any  other  officer,  and  he 
understood  that  generally  that  there  were  sorffe 
eight  petitions  received  every  day  for  the  exer- 
cise of  this  power.  If  then  he  was  divested  of 
every  other  authority  and  duty,  his  time  would 
still  be  very  fully  occupied.  He  hoped  that  the 
maximum  would  not  be  fixed,  because  it  might 
become  necessary  1o  vary  it  according  to  circum- 
stances, which  we  could  not  now  anticipate. — 
He  did  not  suppose  that  any  proposition  that 
might  be  adopted  here  to  diminish  his  duties, 
would  enable  him  to  devote  any  time  to  his  pri- 
vate affairs.  He  was  in  favor  of  moderate  sala- 
ries and  yet  such  as  would  command  the  requi- 
site abilities  for  the  service  of  the  State.  He  pre- 
ferred no.t  to  attempt  to  fix  the  salary  here. 

Mr.  TAGGART  suggested  a  modification  to 
his  amendment  so  as  to  provide  that  the  Gov- 
ernor should  receive  a  compensation  to  be  estab- 
lished by  law,  which  should  not  be  altered  du- 
ring his  term  of  service.  This  would  leave  it 
to  the  legislature  to  fix  the  amount  as  in  its 
judgment  it  might  deem  expedient,  and  he  trust- 
ed that  the  officers  of  Government  would  be  pro- 
hibited from  any  compensation  or  perquisites  by 
way  of  fees  &c.,  other  than  their  salaries. 

Mr.  PATTERSON  said  that  the  present  com- 
pensation of  the  Governor  was  $'4,000  per  annum 
and  his  house  rent,  taxes  and  assessments.  He 
supposed  that  the  committee  in  making  their 
report  intended  to  allow  him  the  compensation 
that  he  now  received. 

Mr.  MORRIS  said  that  that  was  the  intention. 

Mr.  PATTERSON  believed  they  had  not  in- 
cluded all  the  items  yet.  There  was  the  ex- 
pense of  postage  which  was  a  very  considerable 
one,  and  which  he  understood  heretofore  had 
amounted  to  some  seven  or  eight  hundred  dollars 
per  annum.  He  did  not  know  to  what  it  amount- 
ed now,  but  he  presumed  it  was  a  very  consid- 
erable item.  And  in  fixing  the  compensation 
hereafter,  all  these  matters  should  be  taken  into 
consideration,  so  that  the  compensation  should 
be  sufficient  to  command  the  best  talent  necessa- 
ry for  the  discharge  of  the  duties,  and  so  that  the 
officer  would  not  be  obliged  to  draw  on  his  pri- 
vate funds  to  pay  his  family  expenses.  His  own 
opinion  was  and  it  was  but  an  opinion,  that  no 
man  discharging  the  duties  of  Governor  with  a 
family  to  support,  his  rent,  assessments,  taxes 
and  postage  to  pay,  could  live  here  on  $4,000  per 
annum.  If  he  could  he  must  be  a  very  econom- 
ical man  indeed.  He  did  not  know  what  the 
State  now  paid  for  house  rent,  he  presumed  it 
must  be  some  $800  or  $1,000. 

Mr.  BOUCK :    A  thousand  dollars. 

Mr.  PATTERSON  supposed  so.  And  those 
who  thought  the  Governor  could  get  along  with- 
out a  private  secretary,  had  only  to  step 'into  the 
Executive  Chamber,  no  matter  at  what  time  of 
day,  to  be  satisfied  to  the  contrary. 


Mr.  RUSSELL :  There  were  700  applications 
for  pardon  alone  in  a  year. 

Mr.  PATTERSON :  Yes.  And  on  the  most 
of  these,  some  five  or  six  a  day,  the  applicants 
generally  forget  to  pay  the  postage,  having  an 
idea  which  generally  prevailed,  that  there  was 
no  need  of  paying  postage  on  public  business,  or 
on  letters  sent  to  public  officers.  This  the  Gov- 
ernor had  to  pay  in  some  shape  or  other.  He 
did  not  know  or  care  who  would  be  Governor 
another  term,  but  he  did  not  wish  to  see  any 
man  placed  there  who  might  be  forced  to  borrow 
money  of  his  friends  to  get  along.  The  State 
ought  to  pay  a  just  compensation,  not  to  say  any 
thing  about  liberality,  to  its  Executive  officer. — 
He  thought  that  provided  in  the  amendment  of 
the  gentleman  from  Rockland  not  to  be  sufficient. 

Mr.  WOOD  was  willing  to  increase  it  to  what 
would  be  deemed  just. 

Mr.  PATTERSON  said  that  there  were  very 
many  items  to  which  the  Governor  was  liable, 
over  and  above  his  salary,  and  applications  he 
was  forced  from  his  station  to  make  of  money  f 
which  very  few  people  thought  of.  Almost 
every  poor  person  in  the  State  who  happens  to 
go  through  Albany  thinks  that  the  Governor  can 
well  afford  to  divide  a  portion  of  his  salary  with 
them,  not  knowing  that  any  body  else  would  ever 
think  of  the  same  thing,  and  he  is  continually  run 
down  with  applications  of  this  kind.  And  his- 
business  being  so  pressing,  he  does  not  find  time 
to  argue  the  question  with  them,  and  he  general- 
ly finds  that  the  cheapest  way  of  getting  rid  of 
them,  is  to  put  his  hand  in  his  pocket  and  give 
them  a  dollar  or  two.  It  might  be  said  that  this 
had  nothing  to  do  with  the  question  of  salary,  but 
if  the  people  placed  a  man  in  that  position,  the  cir- 
cumstances connected  with  it  should  be  taken 
into  consideration.  He  did  not  wish  to  give  an 
extravagant  salary,  but  it  should  be  sufficient  to 
command  the  best  talents  at  the  helm  of  State. — 
Although  he  did  not  care  whether  the  salary  was 
fixed  here  or  elsewhere,  he  desired  that  mem- 
bers should  vote  understandingly,  and  know  what 
the  Governor  was  compelled  to  pay  out. 

Mr.  STETSON  wished  the  gentleman  from 
Genesee  would  alter  the  phraseology  of  his 
amendment  so  as-to  strike  out  the  words,  "du- 
ring the  time  for  which  he  is  elected,"  and  sub- 
stitute, "after  his  election  and  during  his  con- 
tinuance in  office." 

Mr.  TAGGART  had  no  objection. 

Mr.  TALLMADGE  would  take  the  liberty  of 
submitting  a  remark  or  two  in  the  hope  of 
bringing  the  question  back  to  where  it  ought  to 
be— a  discussion  of  the  first  principles  com- 
prised in  a  Constitution,  and  not  the  mere  details 
of  legislation,  good  in  themselves  and  at  a  proper 
time  and  place.  He  had  no  fault  to  find  with 
the  committee  in  their  report,  and  he  thought 
the  salary  of  $4,000  little  enough,  and  he  who- 
received  it  ought  to  be  worthy  of  it.  The  Gov- 
ernor often  hired  a  house,  furniture  and  all,  and 
this  would  probably  cost  $2,000  per  annum  in- 
stead of  the  $1,000  now  allowed  him  for  house 
rent.  He  was  opposed  to  this  whole  system  of 
incorporating  salaries  into  the  Constitution,  ex- 
cept so  far  as  that  of  members  of  the  Legisla- 


287 


ture  was  concerned.  He  would  free  the  Legis- 
lature from  being  subject  to  the  imputation  of 
•  Kiting for  themselves.  But  not  in  regard  to 
other  officers.  The  Constitution. of  '21  had  stood 
for  a  quarter  of  a  century,  and  might  we  not 
hope  to  frame  a  Constitution  that  might  at  least 
stand  as  long.  And  was  it  not  arrogating  to 
ourselves  more  than  was  proper  in  thus  going 
into  the  details  of  fixing  the  salaries  of  officers 
under  the  administration  of  Government.  In 
his  judgment  it  would  be  an  arrogation,  and  he 
took  this  occasion  to  express  his  dissent  from 
this  principle.  The  prohibition  against  the 
Governor's  salary  being  altered  during  his 
term  of  office  was  a  great  principle,  and  one 
which  he  was  in  favor  of.  He  had  lived  to  see 
a  Governor  through  the  agency  of  lobby  mem- 
bers, endeavoring  to  raise  his  salary  by  a  law 
passed  during  his  term  of  office.  And  he  desir- 
ed not  to  see  it  happen  again.  The  honor  of  the 
government  and  the  dignity  of  the  State  required 
this.  The  postage  question  was  one  that  ought 
not  to  be  discussed  here.  Every  officer  of  the 
Government  received  his  official  letters  without 
being  subjected  to  the  expense  of  postage — that 
was  a  part  of  the  expense  of  Government. — 
Therefore  it  was  not  a  matter  for  the  considera- 
tion of  this  Convention.  The  amendment  reads 
that  the  Governor  shall  for  his  services  receive 
not  "a  salary,"  that  is  not  the  word.  All  our 
literary  institutions  defined  the  word  salary  to 
mean  a  fixed  compensation,  but  such  did  not 
seem  to  be  the  definition  as  applied  to  our  offi- 
cials. They  received  besides  fees  and  perqui- 
sites which  amounted  in  some  cases  to  more  than 
half  the  salary.  The  modern  term  was  com- 
pensation, which  was  a  discreet  and  cautious 
word,  and  very  properly  introduced.  This 
should  neither  be  altered  or  changed  during  the 
period  of  the  term  for  which  the  officer  had  been 
elected.  This  fixing  of  the  salary ;  he  repeated, 
had  better  be  left  to  the  Legislature  to  arrange, 
as  prosperity  or  adversity  in  the  affairs  of  the 
State  might  determine.  $4,000  was  not  too 
much,  on  the  contrary,  he  said  that  the  man  who 
would  discharge  the  duties  for  less,  would  be 
able  to  do  it  for  nothing  at  all.  Again,  in  re- 
lation to  matters  of  changing  the  salary,  suppose 
that  the  Governor  should  veto  a  law  that  the 
Legislature  should  pass,  they  might  if  they  had 
the  power,  desire  to  pay  him,  to  punish  him,  by 
reducing  his  salary.  He  wished  to  have  no 
chance  for  such  a  contingency  to  arise.  He 
desired  to  see  the  Executive,  the  representative 
of  the  whole  people,  to  stand  there  overlooking 
the  Legislature,  and  beyond  the  elevation  of 
their  guns,  in  high  times  of  party  feeling.  And 
this  could  be  attained  best  by  preventing  them 
from  altering  or  changing  his  salary  during  his 
continuance  in  office. 

Mr.  WARD  said  that  his  own  views  had  been 
expressed  by  the  gentleman  from  Dutchess  and 
Genesee.  He  thought  it  would  be  the  sentiment 
of  the  majority  of  the  Convention,  to  leave 
the  Constitution  in  this  respect  pretty  much  as 
it  stood  now.  The  amendment  of  the  gentle- 
man from  Genesee  was  a  very  good  one. 

Mr.  SWACKHAMER  said  it  would  seem  from 
the  remarks  of  the  gentleman  from  Dutchess 
(Mr,  TAIJLMADGE)  that  even  under  the  pres- 


ent Constitution,  there  had  been  room  for  im- 
proper influences  to  be  exerted  in  this  matter  of 
the  Governor's  compensation.  He  would  sug- 
gest that  the  compensation  should  be  fixed  with- 
in a  limit — say  not  to  exceed  five  or  six  thou- 
sand dollars; — leaving  the  Governor  to  arrange 
his  contingent  expenses  himself.  This  hiring 
of  houses,  and  furniture  and  furnishing  deer 
parks,  &c.,  for  officials,  was  a  bad  principle  in 
government.  He  was  in  favor  of  preventing  any 
alteration  or  change  in  the  salary  during  the 
term  of  office  according  to  the  political  or  other 
notions  of  the  legislature.  He  believed  in  the 
principle  of  delivering  men  from  temptation. 

Mr.  BAbCOM  disapproved  ot  fixing  an  amount 
beyond  which  the  compensation  should  not  go.  It 
was  the  way  that  a  great  many  fees  and  salaries 
had  run  up  in  this  State.  His  experience  about  it 
was  that  they  would  soon  crawl  up  to  the  maxi- 
mum, if  a  margin  was  lelt.  It  was  so  in  relation 
to  lawyer's  fee;:,  as  all  know.  He  apprehended 
that  if  the  convention  and  the  people  fixed  a  maxi- 
mum, the  Legislature  would  regard  I  hat  as  the 
amount  they  should  fix.  He  admitted  that  he 
would  like  well  to  see  these  salaries  fixed  in  the 
Constitution,  but  there  was  great  force  in  the  ar- 
gument of  the  gen'leman  from  Dutchess, "that  dur- 
ing a  quarter  ot  a  century,  circumstances  might 
arise  which  would  render  it  very  proper  to'  take 
into  consideration  the  question  ot  increasing  or  re- 
ducing the  compensation.  It  there  was  to  be  a 
convention  once  in  every  seven  or  ten  years,  there 
would  be  more  propriety  in  designating  ihe  sala- 
ry in  the  Constitution,  but  until  ihe  committee  on 
that  subject  should  report,  and  the  question  offu. 
lure  constitutional  amendment  was  considered  and 
disposed  of,  that  could  not  be  decided. 

Mr  BRUCE  was  opposed  to  leaving  any  part  of 
this  question  to  the  Legislature,  as  he  believed 
very  serious  difficulties  would  grow  out  of  it. — 
He  was  disposed  to  fix  the  salary  of  the  Governor 
here.  Gentlemen  talked  as  if  v\e  were  sent  here 
o  make  an  unalterable  constitution — but  he  sup- 
posed we  were  sent  here  to  form  one  that  should 
be  the  ground  work  of  law,  and  if  it  was  necessa- 
ry after  to  alter  it,  let  the  people  send  delegates 
to  do  it.  He  would  not  leave  the  matter  to"  the 
Legislature,  for  the  reason  that  in  times  of  high 
political  excitement,  it  would  be  very  easy  for 
demagogues  to  say  that  ihey  went  for  reducing 
the  salary  of  the  Governor,  and  that  sometimes 
was  a  very  populai  cry  among  the  people,  and 
thus  their  attention  would  be  drawn  from  subjects 
of  far  greater  importance  directly  before  them. — 
He  was  for  making  a  matter  of  fact  instrument.— 
It  the  salary  was  too  high,  twenty  yeais  hence, 
let  that  be  one  cause  for  remodeling  the  Constitu- 
tion. He  did  not  propose  to  say  what  that  should 
be,  but  he  knew  that  ihe  officer  was  an  important 
one.  and  he  was  willing  to  give  him  a  liberal  sa- 
laiy.  When  that  was  fixed,  he  would  allow  him 
nothing  further  in  the  way  of  fees  or  perquisites. 
He  believed  that  a  great  cause  of  complaint  among 
ihe  people  was  was  that  things  wet e  left  at  loose 
ends. 

.  Mr.  SALISBURY  was  nol  exactly  satisfied  with 
tne  proposed  amendments,  it  (here  was  one  part 
of  the  government  moie  than  another  where  a 
strong  guard  was  necessary,  it  was  at  the  door  of 
the  treasury.  That  was  the  point  here,  and  it 


288 


fixing  a  limit  beyond  which  the  legislature  should 

not  go,  in  the  way  of  compensation  of  officers  -     ts  veneance      on  th    p  • 

He  was  disposed  to  give  them  a  sufficient    com-   gaiarv  g  It  was  bn?         Executlve  by  leducmehi. 
pensation  but  no  perquisites  whatever.  S^ftttim  of^Jr     c°n80M»Je  with  the  ordi- 

Mr.  DANFORTH  agreed  substantially  with  the  fixed  n  "th  fco^Lu^  l  M'?  "^  ,™ 
two  gentlemen  last  up&  The  compensation  of  the  beyond  this  t  nDtatinn  '  H"  1tehg'S/1atUre  WOU*d  be 
governor  should  be  fixed  by  constitutional  provls-  its  reach  He  d^sf^'t  \h* 

ion.     He  might  be  mistaken,  but  his  own  opinion    both  made  inden  nH     t     se«  them   bo<h  tied  up, 
was  that  it  was  the  sentiment  of  his   constituents   Lch  othe?          P  **   *          actlon  toward» 

that  a  great  source  of  complaint  had  been  that  the        Mr     «:TPTQrkiM    *v,       w* 

legislature  had  too  much  business,  that  they  want-   shou  d  be  t  ?H  f       g     '  V^   \e*I8la,tuure 

ed  restrictions,  checks  and  guards,  put  upon  the  r   Governor  »Tl  ented  f™mactlnS°n  the  salary  of  the 
action  in  regard  to  the  treasury.     It  was  a  subject    J      Hn  n'ffiL     ^h       ^         Umbent   con' 
that  had  occupied  the  public  attention   to   a  very    three  term?  V,  {  !      £     , 
great  extent,  and  he  would  therefore  take  this  re.     n  the  co^tuH  n    f  t°,bJectedto. 
sponsible  as  well  as  perplexing  duty  from   thelegJ  ^ish  thaf       f  f  salaries     and  did  not 

islature.     At    a    reaLSble   computation,     ^  ^ 

proportion  of  the  biennial  sessions  would  be  occu-       Thp     iPoiinr  »*    « 

pied  m  fixing  salar.es,    Suppose  that  the  Governor  amendnleM  a"d  "was  ?e  ecfe  ""  ' 

did  not  agree  in  political  sentiment  with  the  ma-       Thp  , 
jo,ity  of'.he   Jo  hoU3e3,  there   might  a 


conu' 
°De'   'woor 


versy  arise,  and  he  would  guard  against  any  evil 
resulting  by  it,  by  fixing  the  salary  of  the  Govern- 
or  in  the  organic  law,  and  submit  it  to  the  people. 
He  thought  that  they  would  pass  upon  it  under- 
standingly.  He  thought  also  they  would  pass 
wisely  not  only  this,  but  on  the  salaries  of  other 


MONDAY   (24th  dm*  Tnlv  i  i 
Pr         ,     .,      MONDAY   (34^  day)  July  13. 

riayer  b7  the  Rev.  Mr.  HUNTING-TON. 

EARLY  MEETING. 

Mr.  CHATFIELD  moved  that  from  and  after 

officers,  the  legislative  as  well  as  the  judiciary.—    to-day  the  Convention  shall  meet  at  9A.M. 
This  was  bis  opinion,   and  he  should  vote  accord-        Mr.    SIMMONS   opposed   this   at  present.  — 
ingly.     He   should   therefore  vote  to  sustain  the   There  were   too  many  committees  hard  at  work 
report.  who  had  much  business  to  transact,  and  who  met 

The   question    was   then  taken  on  {he  amend-   regularly   every  morning;  there   was  too   much 
ment  of  Mr.  WOOD,  and  it  was  rejected.  time  wasted  here  in  idle  discussion  and  in  unne- 

Mr.    SALISBURY  proposed    that    the    salary    cessarily   debating  subjects,  whereas  more  time 
should  not  exceed  $0000.     This  was  lost.  '    ought  to  be  spent  in  maturing  them  elsewhere.  — 

Mr  BRUCE  wished  to  propose  an  amendment,  This  was  a  very  bad  division  of  time  ;  from  nine 
but  the  CHAIR  decided  it  out  of  order,  as  cover-  to  two  or  three  ;  so  as  to  be  sitting  here  in  the 
ing  matter  which  had  already  been  acted  upon.  hotest  part  of  the  day.  He  moved  to  amend  by 
Mr.  SIMMONS  moved  to  amend  by  providing  inserting  "to  sit  from  8  to  12,"  and  on  this  he 
that  the  salary  should  not  be  less  than  $'2,500,  nor  called  for  the  ayes  and  noes.  If  we  deliberated 
more  than  $5000.  This,  he  said,  would  be  a  more  in  committee,  we  should  have  some  new 
sort  of  equal  ground,  and  would  cover  all  ideas  to  advance,  instead  of  repeating  the  same 
the  changes  that  might  arise  in  the  course  of  twen-  things  over  and  over  again  each  day  as  we  do  now. 
ty  years.  This  would  also  not  induce  the  legis-  Mr.  LOOMIS  was  deeply  pained  to  see  so  much 
lature  to  tamper  with  this  matter.  He  would  nei-  time  wasted  in  unnecessary  discussion  as  had  been 
ther  not  allow  the  legislature  to  undertake  to  le-  the  case  during  the  sittings  of  this  Convention.  -r- 
gislate  a  co-ordinate  branch  out  of  existence  by  They  were  now  in  the  seventh  week  of  the  ses- 
redycing  his  salary  to  25  cents,  as  was  the  case  in  sion  ;  and  what  had  been  done  ?  And  this  was 
Kentucky  in  their  action  towards  their  Supreme  owing  to  the  course  of  debating  pursued.  There 
Court.  were  only  96  working  days  left  between  this  and 

Mr.  MORRIS  said  that  the  legislature  although  the  election  —  take  from  this  one  month  for  the  peo- 
called  a  co-ordinate  branch  with  the  governor,  pie  to  consider  the  Constitution,  and  it  only  left 
was  also  sometimes  a  conflicting  one.  And  this  four  days  for  the  consideration  of  each  of  the  re- 
was  an  admirable  reason  why  the  legislature  ports  of  the  committee  ;  and  yet  two  weeks  have 
should  not  fix  his  pay.  The  gentleman  from  Essex  been  spent  in  debating  and  speeches  on  the  two 
had  proposed  a  salary  of  $2,500  ;  but  he  (Mr.  M.)  fisrt  sections  of  this  report.  He  hoped  hereafter 
would  say  that  no  Governor,  unless  he  would  sleep  they  would  make  short,  and  of  course  .the  best  of 
in  the  park  and  live  on  crackers  and  cheese  could  speeches. 

support  himself  on  that  sum.  It  had  been  urged  A  MEMBER  :  Some  gentlemen  seem  to  intend 
that  all  evil  would  be  prevented  by  not  permitting  by  delays  of  this  kind  to  prevent  all  amendments 
the  legislature  to  reduce  the  salary  during  the  term  in  the  Constitution. 

for  which  the   officer  was  elected.     He  was  old       This  trifling  resolution  appearing  likely  to  lead 
enough  to  remember,  and  not  so  old  as  to  have  for-   to  another  very  long  discussion,  Mr.  STETSON 
gotten   that  very  frequently  in  high   party  times   moved  the  "  previous  question"   and  the  resolu- 
strong  conflicts  arose  between  the  governor  and  the   tion  was  carried. 
majority  in  the  Legislature.     And  there  had  been  COMMON  SCHOOLS. 

sometimes  accidental  majorities  in  the  legislature,  Mr  PENNIMAN  offered  a  resolution  that  the 
and  in  these  controversies  the  legislature  had  felt  j  committee  on  Education  inquire  into  the  expedi- 


289 


ency  of  abolishing  the  office  of  Superintendent  of 
Common  Schools.     Adopted. 

BANKS— STOCKHOLDERS,  &c. 
Mr.  MURPHY  offered  the  following  resolution: 
Resolved,  That  the  Comptroller  be  requested  to  cause  to 
be  prepared  and  furnished  to  this  Convention  a  statement, 
showing  the  amount  of  the  capital  stock  actually  puid  in, 
and  secured  to  be  paid  in,  of  the  moneyed  or  stock  corpo- 
rations deriving  an  income  or  profit  from  their  capital  or 
otherwise,  including  free  banking  associations,  and  hav- 
ing their  principal  office,  or  place  for  transacting  their 
financial  concerns,  in  the  city  and  county  of  New-York; 
and  also  showing  what  portions  of  such  capital  stock  are 
held  by  persons  residing  respectively  in  said  city  and 
county,  elsewhere  in  the  S'ate  of  New-York,  elsewhere 
in  the  United  Statts,  and  by  persons  residing  out  of  the 
limits  of  the  United  States,  and  also  the  amount  of  such 
stock,  if  any,  belonging  to  the  State,  and  to  incorporated 
literary  and  charitable  institutions;  and  that  such  state- 
ment distinguish  the  amount  so  held  by  each  of  said  cor- 
porations and  associations. 

Mr.  TAGGART  wished  to  hear  some  reason 
for  offering  this  resolution. 

Mr.  MURPHY  said  that  he  could  give  the  gen- 
tleman various  reasons  for  offering  this.  They 
were  approaching  a  discussion  when  it  would  be 
well  to  know  how  much  of  the  stock  of  the  in- 
corporated companies  of  this  state  are  held  else- 
where than  in  this  state  and  by  whom  this  stock 
is  held.  His  particular  object  in  offering  this 
resolution  was  in  regard  to  the  duties  of  the  spe- 
cial committee,  which  Was  raised  on  the  motion 
of  the  gentleman  from  New  York  (Mr.  MORRIS) 
who  proposed  some  days  ago  for  the  consideration 
of  this  Convention,  a  proposition  to  be  inserted  in 
the  constitution  to  tax  personal  property  where 
it  was  in  use  in  business  and  not  at  the  domicil 
of  the  owr-er.  There  are  in  the  city  of  New  York 
many  incorporated  companies  and  associations  the 
capital  ••!  wliich  is  not  all  held  by  the  people  of 
the  city  of  New  York,  but  by  persons  residing 
elsewhere  in  the  state  and  out  of  the  state  and 
even  out  of  the  United  States.  The  capital  of 
those  companies  and  associations  exceeds  thirty 
millions  of  dollars,  which  is  more  than  the  whole 
amount  of  personal  property  assessed  in  the  city 
of  New  York.  That  city  has  drawn  together  that 
capital  from  the  natural  advantages  she  possesses, 
and  must  continue  to  draw  it;  and  she  enjoys  the 
benefit  of  it,  and  he  was  willing  she  should  ;  but 
some  persons  nevertheless  might  object  that  after 
having  drawn  in  all  this  capital  from  all  other  parts 
of  the  state,  she  should  have  the  right  to  tax  other 
personal  property,  viz.,  that  of  non-residents, 
which  is  now  exempt. 

Mr.  TAGGART  was  satisfied  with  the  expla- 
nation. 

Mr.  TOWNSEND  had  no  objection  to  the  re- 
solution ;  but  it  would  contain  a  great  many  de- 
tails, and  occupy  much  time  in  preparing ;  and  if 
we  could  not  get  any  return  to  it  before  the  1st  of 
October,  it  would  be  too  late  for  the  action  of  the 
Convention. 

Mr.  MURPHY  said  that  he  had  consulted  the 
Comptroller  before  he  prepared  the  resolution, 
and  he  found  that  it  could  be  easily  furnished. 

The  resolution  was  adopted. 

UNIFORM  TAXATION. 

Mr.  RUGGLES  offered  the  following: 
Resolved,  That  it  be  referred  to  the  standing  committee 
number  two,  to  inquire  into  the  expediency  of  adopting  a 
permanent  and  uniform  system  of  taxation  which  shall  op- 
erate equally  upon  ail  cla&ses  of  citizens}  which  shall  re- 


gard actual  property,  whether  real  or  personal,  including 
all  debts  due  from  insolvent  debtors,  as  the  only  legitimate 
objtct  of  taxation;  which  shall  define  what  is  real  and 
what  personal  property,  and  shall  take  from  the  Legisla- 
ture the  power  of  converting  the  one  into  the  other,  and 
thereby  interfering  with  private  and  vested  rig. its;  which 
shall  protect  the  citizen  against  double  taxation  in  any 
form,  or  under  any  pretence  whatever;  which  shall  se- 
cure to  resident  citizens  the  Hght  to  be  assessed  for  their 
personal  estate  in  the  city,  town  and  county  where  they 
reside,  and  not  elsewhere;  and  which  shall  assert  and  per- 
petuate the  principle  of  assessing  all  property  at  its  lull 
value,  subject,  however,  to  a  deduction  on  account  of  any 
debts  which  the  owner  may  in  good  faith  have  contracted, 
and  be  liable  to  pay;  so  that  each  one  may  bear  his  due 
proportionate  f  hare  of  the  public  burthens,  according  to 
the  value  of  what  he  really  possesses. 

Mr.  RUGGLES  said  this  had  been  forwarded 
to  him  by  a  highly  respectable  citizen  of  this 
State,  and  it  contained  some  details  of  enquiry 
that  were  not  embraced  in  any  former  resolution, 
relative  to  taxation,  arfc  he  wished  this  to  go  to 
Committee  No.  2,  who  already  had  that  subject 
before  them.  The  object  of  this  resolution  was 
to  have  a  permanent  and  uniform  system  of  tax- 
ation, to  operate  equally  on  all  persons  and  all 
property,  real  or  personal ;  and  prevent  the  citi- 
zens from  double  taxation. 

It  was  referred. 

N.  Y.  CITY  CONVENTION. 

Mr.  SHEPARD  moved  that  tvso  copies  of  the 
Journal  and  Documents  of  this  Convention  be 
transmitted  to  the  corporation  of  the  city  of  New 
York,  as  last  as  published-  The  Convention  be- 
ing now  in  session,  they  would  be  of  great  ser- 
vice to  that  body. 

Mr.  COiNELY  moved  to  amend  so  that  one  of 
the  copies  be  sent  to  the  President  of  the  City 
Convention  now  in  session. 

Mr.  SHEPARD  assented  to  this. 

Mr.  LOOMIS  said  that  the  gentleman's  object, 
that  of  furnishing  information  to  the  New  York 
Convention,  would  not  be  accomplished,  unices 
the  documents  accompanying  the  journal  were 
sent  also. 

Mr.  PATTERSON  differed;  he  thought  that  send- 
ing the  journal  would  ans'-vei  every  purpose;  be- 
cause he  saw  that  they  had  just  got  into  a  new 
system  of  printing,  (laughter)  and  the  new  print- 
er just  lumped  all  the  documents  bodily  into  the 
journal ;  they  had,  first,  all  the  long  reports 
printed  and  laid  on  their  tables  in  the  form  of 
documents;  and  then  the  printers  (Carroll  & 
Cook)  went  to  work  and  put  all  these  bulky 
documents  into  the  journal  (Much  laughter.) — 
They  were  printed  twice  over ;  and  thus  the 
printers  got  double  pay  fur  the  same  work. 
(Laughter.)  This  was  a  new  system  ;  they  had 
800  copies  of  the  document,  and  600  copies  of  the 
journal;  so  they  got  1400  copies  of  each  docu- 
ment. He  desired  to  call  the  attention  of 
the  Convention  to  this  mode  of  doing  busi- 
ness, which  was  wholly  unprecedented  as  well.as 
useless,  except  for  the  sole  purpose  of  putting 
money  in  the  pockets  of  the  printers.  He  knew 
not  how  it  was  such  a  contract  was  made  with 
these  gentlemen?  He  thought  it  time  this 
mode  of  proceeding,  and  these  abuses  were  stop- 
ped. 

The  resolution  was  adopted. 

The  Convention  then  went  into  committee  of 
the  whole  on  the 


290 


POWERS  AND  DUTIES  OF  THE   EXECUTIVE, 
Mr.  CHATFIELD  in  the  chair. 

Mr.  STOW  asked  if  he  could  offer  an  amend- 
ment in  the  House  which  had  not  been  submitted 
to  the  committee  of  the  whole  ? 

The  CHAIR  said  he  could  not. 

Several  members  asked  the  gentleman  to  speak 
louder ;  they  could  not  hear. 

Mr.  STOW  said  that  it  was  impossible  to  speak 
so  as  to  be  heard  all  over  the  House.  There  was 
so  much  noise. 

The  CHAIR  called  to  order. 

Mr.  STOW  said  I  hat  this  rule  resulted  from  a 
special  Legislative  Rule,  and  not  from  pailiamen- 
tary  law.  He  wanted  to  call  the  attention  of  the 
Committee  to  this  matter,  as  he  believed  they 
would  find  it  necessary  to  depart  from  this  rule. — 


discussion.  He  denied  entirely  that  the  parlia- 
mentary rule  was,  as  had  been  stated  by  the 
Chair,  viz :  that  you  cannot  move  that  in  the 
House  which  has  not  been  offered  first  in  com- 
mittee of  the  whole.  He  denied  that  this  was  at 
all  a  parliamentary  rule.  It  would  be  lamenta- 
ble indeed,  if  they  had  not  the  power  to  do  this 
in  the  House  upon  the  great  and  important  pro- 
positions that  would  come  up  before  them  in  the 
preparation  of  this  Constitution.  The  rule  was 
adopted  in  legislature  on  account  of  bills  that  were 
pretty  much  local  in  their  character,  and  which 
there  had  been  great  difficulty  in  getting  hugger- 
muggered  through  the  committee  of  the  whole  ; 
bills  of  a  private  nature  ;  and  this  rule  was  inten- 
ded to  protect  the  parties,  so  that  they  should 
not  be  surprised  in  the  house,  by  any  new  prop- 


He  would  now  off,  r  an  amendment  pro  forma,,  so  j  osition  calculated  to  defeat  the  bill.  Our  best 
as  to  secure  himself  this^pnvilege  in  the  House 
hereafter.  He  supposed  tnis  would  be  voted  down 
as  it  ought  to  be;  unless,  in  our  subsequent  action 
the  appointing  power  was  taken  away  from  the 
Senate  in  connection  with  the  Governor.  He 
moved  to  strike  out  of  the  3d  line  of  sec.  4  the 
words  ''  or  the  Senate  only,"  in  connection  with 
the  authority  of  the  Governor  to  convene  the  Le- 
gislature on  special  occasions.  <  His  object  was 
this;  if  the  Committee  adopted  (and  he  thought 
they  would,  though  he  was  not  fully  in  favor  of  it) 
this  clause  that  the  Senate  shall  not,  partake 
of  the  appointing  powers,  then  his  amendmen' 
would  come  in  properly  ;  because  the  provision  lo 
convene  the  Senate  in  such  a  case  would  be  use- 
less. 

Mr.  MORRIS  supposed  tin  object  of  the 
learned  gentleman  was,  that  the  Committee 
should  prepare  to  make  this  article  comport  with 
such  subsequent  articles  of  the  Constitution  as 
might  be  hereafter  reported  and  adopted  by  the 
Convention. 

Mr.  STOW  said  it  was. 

Mr.  MORRIS  said  that  he  would  then  inform 
the  committee  that  when  they  shall  have  got 
through  this  article  he  intended  to  move  that  any 
further  action  in  relation  to  it,  be  suspended  un- 
til the  Convention  shall  have  passed  upon  other 
articles;  and  for  the  reason  he  formerly  assigned, 
when  he  introduced  the  article  now  before  the 
committee ;  namely,  that  he  had  no  doubt  the 
action  of  the  Convention  on  other  articles  would 
make  it  necessary  to  alter  this  in  some  important 
particulars;  and  to  allow  the  Convention  an  op- 
portunity to  do  this,  he  would  ask  that  in  rela 
tion  to  this  article  it  be  laid  aside,  after  it  shall 
be  amended  by  the  committee  of  the  whole— be 
laid  on  the  table;  and  leave  to  sit  again  not  grant- 
ed. 

Mr.  STOW  said  that,  after  all,  that  was 
only  another  mode  of  arriving  at  the  result  he  de- 
sired to  effect ;  yet  he  did  not  see  how,  according 
to^the  rules  under  which  they  were  acting  at  pre- 
sent, they  could  arrive  at  his  or  any  other  amend- 
ment, unless  they  were  offered  first  in  committee 
of  the  whole.  He  did  not  wish  to  press  his  mo 
tipn  further  than  was  necessary  to  keep  it  within 
his  power  to  offer  hereafter,  unless  the  rule  was 
changed. 

Mr.  TALLMADGE  said  that  he  would  no 
trouble  the  committee  but  a  moment :  but  he  rose 
to  make  a  statement  that  would  cut  short  much 


vay  is  to  discuss  all  these  motions  as  they  arise 
icre  in  the  committee  now,  and  then  meet  the 
ither  things  in  the  house  and  dispose  of  them 
egularly  and  fairly  as  they  occur. 

Mr.  W.  TAYLOR  was  precisely  of  this  opinion. 

Mr.  STOW  said  that  he  had  accomplished  his 
ibject;  and  roused  the  attention  of  the  commit- 
ee.  He  withdrew  his  amendment. 

Mr.  FLANDERS  moved  to  strike  out  the  fol- 
owing  words : — 

§  4.  The  Governor  shall  be  General  and  Oommander-in- 
"hief  of  all  the  Militia,  anfl  Admiral  01  the  Navy  of  the 
tate. 

and  insert  the  following  : — 

The  Governor  shall  be  Commander-in-Chief  of  the  mil- 
tary  and  naval  forces  of  the  State."    Agreed  to. 

No  farther  amendments  were  offered  to  the  4th  ; 
and  the  committee  passed  to  the  5th  section  on 

THE  PARDONING  POWER. 

The  5th  section  was  then  read  as  follows : — 
§  5.  The  Governor  shall  have  power  to  grant  reprieves 
and  pardons  after  conviction,  for  all  oflences  except  trea- 
son and  cases. of  impeachment.  He  may  commute  sen- 
vnce  of  death  to  imprisonment  in  a  State  prison  for  life, 
rle  may  grant  pardons  upon  such  conditions,  and  with  such 
estrictions  and  limitations",  as  he  may  think  proper.  Upon 
conviction  for  treason,  he  shall  have  power  to  suspend  the 
execution  oi  the  sentence,until  the  case  shall  be  reported  to 
he  Legislature  at  its  next  meeting,  when  the  Legislature 
shall  either  pardon,  or  direct  the  execution  of  the  criminal, 
or  dnect  a  futher  reprieve.  He  shall  in  his  annual  mes- 
sage communicate  to  the  Legislature  each  case  of  reprieve, 
commutation  and  pai  don  granted  since  the  next  previous 
annual  message  of  the  Governor,  stating  the  name  of  the 
convict,  the  crime  of  which  he  was  convicted,  the  sen- 
tence and  its  date,  and  the  date  of  the  commutation,  \  ardon 
and  reprieve. 

Mr.  STEPHENS  offered  the  following  amend- 
ment : 

After  the  word  "  reprieve,"  in  the  5th  line,  insert  as  fol- 
lows.—" But  no  reprieve,  pardon  or  commutation  shall 
be  granted  except  notice  of  the  application  therefor,  with 
the  grounds  or  reasons  thereof,  and  the  names  of  the  ap- 
plicants be  given  for  two  weeks  prior  to  such  application, 
in  such  manner  as  the  Legislature  shall  determine." 

The  amendment  was  offered  in  behalf  of  his  col- 
league, (Mr.  NICOL.L,,)  who  was  unable  to  be  pre- 
sent to-day.  He  said  this  however  not  with  any 
desire  to  avoid  the  responsibility,  on  the  contrary 
it  seemed  to  him  that  there  was  a  great  necessity 
for  some  restriction  on  the  pardoning  power;  in- 
deed in  his  own  mind  it  was  somewhat  question- 
able whether  it  was  not  advisable  to  strike  it  alto, 
gether  from  the  Constitution.  The  certainty  of 
punishment  was  deemed  to  be  a  greater  preventa- 


291 


tive  of  crime  than  its  severitv,  ami  ^s  the  tendency 
of  our  laws  was  towards  mildness,  certainty  of  pu. 
nishment  was  more  necessary.  But  as  the  law 
now  stands,  there  is  no  certainty.  The  statistic- 


there  was  no  responsibility  about  it.  The  appli- 
cations are  handed  around,  and  men  from  a  faci- 
lity of  disposition  or  willingness  to  oblige,  or  a 
strong  feeling  of  sympathy  with  misery,  every 


of  our  prisons  show  that  within  the  last  10  yeais,  {where    the    result   of  crime,     sign    it.      Politi- 

'  c  1!£'  L  '  cians  were  always  applied  to — they  were  gener- 
ally the  first  to  whom  the  papers  were  presented, 
and  perhaps  it  was  true  that  in  many  cases  they 
did  sign  them,  actuated  by  motives  of  political 
interest.  The  facility  and  the  secrecy  with 
which  it  was  done,  encouraged  carelessness, 
and  the  chances  were  a  thousand  to  one  that 


60  persons  sentenced  to  imprisonment  for  life,  had 
been  pardoned,  their  average  term  of  imprison- 
ment was  but  about  seven  years  Of  these  con. 
fined  for  lesser  crimes  the  average  pardons  was  as 
as  one  t"  eighteen.  He  made  no  impufa 
tion  upon  the  Executive,  either  the  present  in- 
cumbent or  any  of  his  predecessors.  He  knew  the 


difficulties  he    had   to   contend  against,    and  the  j  the  signers  would  never  be  known.     But  if  eve- 
powerful  influences  that  were  brought  to  bear  upon  |  ry   man   knew  that  when   he  signed   an   appli- 


him. 
him. 


He    knew    that   prayers  and  tears  assailed 
But  it  seemed  to  him  that  there  must  be  a 


remedy  for  it,  and  this  amendment  in  his 
opinion  went  as  far  as  any  thing  to  accomplish  it. 
It  required  notice  of  the  application  to  be  given. 
As  it  now  stood  the  proceedings  were  secret  and 
exparte,  the  convict,  or  his  friends  for  him,  gets 
up  a  statement  always  exaggerated  and  no  doubt 
often  false,  and  instances  had  occurred  where  the 
whole  application  rested  on  false  and  forged  pa- 
pers. The  distinguished  gentleman  who  now 
occupied  the  Executive  chair  has  called  atten- 
tion to  the  great  extent  to  which  exparte  state- 


cation  of  this  kind,  the  whole  would  be  put 
before  the  public,  he  would  pause  and  hesitate, 
for  no  one  who  valued  the  good  opinion  of  his  fel- 
low-citizens, would  go  before  the  public  as  asking 
the  Governor  to  let  loose  upon  society  a  convict- 
ed felon,  unless  the  circumstances  were  such  as 
fully  to  justify  it.  This  would  cut  off  a  vast  class 
of  those  applications,  and  the  Governor  would  be 
embarrassed  with  but  few  of  them.  Then  there 
would  be  no  such  thing  as  exparte  evidence  alone 
to  act  upon. 

Mr.   MURPHY  concurred  entirely  with  the 
gentleman  from  New  York  in  the  views  that  he 


ments  are  carried.  He  states  in  his  report  that  out  had  presented,  as  to  the  propriety  of  some  limita- 
of  700  applications  for  pardons  presented  last  j  tion  and  restriction  on  the  pardoning  power.  They 
vear  but  sixteen  were  accompanied  by  counter  had  all  seen  in  the  respective  sections  in  which 


year 

statements,  or  unfavorable  expression  of  any  kind. 
And  there  was  reason  to  believe  that  all  the 
rest,  being  almost  the  whole  number,  were  made 
and  perhaps  acted  upon,  and  without  any  know- 
ledge of  the  fact  being  brought  home  to  the  party 


against  whom 
to   the  peopl 


the    crime    was    committed    or 
of  the   State.     Now  it  was  mon- 


strous tht.t  a  convicted  felon  who  had  had  all  the 
benefits  of  the  provisions  of  the  laws,  court,  jury, 
counsel  and  the  examination  of  his  own  witnes- 
ses, and  been  found  guilty  by  a  jury  and  senten- 
ced to  a  punishment,  should  on  the  bare  state- 
ments of  himself  and  his  own  friends  be  again  let 
loose  upon  society  to  commit  crimes  anew.  It 
was  a  mockery  of  the  court  that  tried  him — of 
the  witnesses  that  proved  his  guilt,  and  of  the 
whole  paraphernalia  of  justice,  and  of  the  rights 
and  privileges  of  the  citizens  who  incurred  the 
expense  of  convicting  him.  The  notice  propo- 
sed would  inform  the  person  wronged  that  this 
application  was  pending,  and  that  perhaps  he 
would  be  compelled  to  try  his  cause  over  again 
before  another  tribunal,  and  an  opportunity  affor- 
ded him  of  bringing  forward  new  evidence.  It 
was  but  fair  and  right  that  he  should  have  this 


opportunity 
stands  exactly 


He    may 
as  it    did 


show    that    the    case 
at  the  trial,   that  the 


convicted  is  no  more  entitled  to  a  pardon  than 
he  was  to  a  verdict  of  acquittal.  Then,  the 
Governor  would  be  responsible  for  the  grant- 
ing of  the  pardon — and  then  be  would  be  placed 
in  a  position  which  he  could  not  now  be — he 
would  have  heard  the  other  side.  The  amend- 
ment contemplated  something  further.  It  not 
only  required  notice  of  the  application  to  be  pub- 
lished, but  also  a  statement  of  the  grounds  or  rea- 
sons upon,  which  it  was  founded,  with  the  names 
of  the  applicants.  This  would  bring  the  whole 
matter  under  the  authority  of  responsible  names, 
at  the  bar  of  public  opinion.  As  it  stood  now, 


they  resided,  the  evil  of  politicians  and  others  who 
were  supposed  to  possess  influence  at  Albany  en- 
gaging themselves  in  these  applications.  And 
if  as  often  happens,  the  pardon  should  be  an  im- 
proper one,  and  the  community  indignant  there- 
at, these  men  are  the  first  to  join  in  the  hue  and 
cry  in  denunciation  of  the  Executive.  He  would 
ask  the  gentleman  to  allow  him  to  amend  his 
amendment,  by  inserting  after  the  word  "appli- 
cants," the  words,  "and  other  persons  recom- 
mending the  same,  directly  or  indirectly." 

The  amendment,  as  proposed  by  the  gentleman 
from  New  York,  (Mr.  STEPHENS,)  requires  the 
application  for»the  pardon  to  be  published  two 
weeks  before  its  consideration  by  the  Executive. 
This  was  too  limited  a  time.  There  were  many 
persons  who  approached  the  Executive  by  letter 
and  through  other  means  which  would  not  be 
considered  strictly  as  applications,  and  yet  who 
have  strong  influence  upon  the  question.  He 
wished  to  include  every  person  who  either  direct- 
ly or  indirectly  was  connected  with  it,  and  de- 
sired that  the  governor  should  not  consider  any 
communication  written  or  verbal  unless  under  the 
notice  required.  Then  the  community  might 
know  who  it  was  in  conspicuous  places  in  socie- 
ty, who  are  going  to  release  these  felons  upon 
them. 

Mr.  RUSSELL  suggested  that  it  was  better  to 
leave  these  details  to  the  legislature,  and  merely 
to  insert  in  the  Constitution  a  general  provision 
on  the  subject. 

Mr.  BASCOM  said  that  if  it  was  proper  to  en- 
trust the  governor  with  the  pardoning  power,  it 
should  be  done  without  undertaking  to  spread  out 
in  the  constitution  the  rules  of  practice  by  which 
he  should  be  governed  in  its  exercise.  Embar- 
rassments, difficulties  and  unnecessary  expense, 
could  be  the  only  result  of  the  success  of  this  pro- 
position. He  doubted  very  much  whether  it 


292 


would  throw  any  material  difficulty  in  the  way  of 
making  the  applications,  so  as  to  reduce  the  num- 
ber. And  if  the  Governor  is  required  to  give  se- 
ven or  eight  hundred  notices  a  year  to  the  District 
Attorney  of  the  counties,  it  would  raise  a  new 
system  of  practice  over  the  State.  In  effect,  it 
would  be  a  notification  to  these  officers  to  show 
cause  why  a  new  trial  should  not  be  had.  Was 
it  supposed  that  they  would  fail  to  do  so,  or  to 
find  it  convenient  to  come  here  for  that  purpose, 
and  with  the  travelling  fees  and  expenses,  and  all 
that  sort  of  thing,  to  be  heard  from  when  their  an- 
nual bills  were  allowed.  Mr.  B.  said  that  as  to 
the  proposition  to  require  a  notice  of  the  applica- 
tion to  be  published  in  the  newspapers,  the  ex- 
penses of  that  character  were  already  heavy  and 
did  very  little  good,  and  it  was  improper  to  in- 
crease them.  The  Governor  could  regulate  all 
this  matter,  and  where  the  case  was  proper,  he 
would  undoubtedly  give  full  opportunity  to  the 
prosecuting  Attorney  to  be  heard  in  opposition. 

Mr.  BROWN  thought  the  amendment  should  not 
be  adopted  without  consideration.  It  was  gene- 
rally conceded  that  great  evils  existed  with  regard 
to  the  exercise  ol  the  pardoning  power,  and  that 
there  should  be  some  limitation  of  it-  But  it  seern 
ed  to  him  that  by  requiring  these  preliminary  no- 
tices,  gentleman  would  wholly  fail  in  securing  the 
object  they  designed  to  accomplish.  They  desir- 
ed that  pardons  should  not  be  granted  to  the  ex- 
tent which  they  have  been,  and  that  gentlemen  in 
high  places,  exercising  political  influence  should 
be  obliged  to  put  themselves  on  record  in  their 
connection  with  the  matter.  Would -that  follow 
from  the  adoption  of  this  rule?  This  influence 
would  be  exercised  still,  and  in  such  a  way  as 
would  not  appear  in  the  application.  Thig  pow. 
er  had  been  abus-d  verj  much,  not  from  a  desire 
to  do  wrong,  or  to  commit  an  abuse,  but  from  the 
exercise  of  (he  best  feelings  of  the  human  heart. 
The  governor  had  been  assailed  by  application, 
and  frequently  misled,  in  this  matter  and  all 
would  unite  in  that  opinion.  Tfoere  \vere  great 
principles  lying  at  the  bottom  of  the  pardoning 
power.  In  this  country  it  was  lodged  with  the 
Governor  or  President — in  Great  Britain  with  the 
Crown,  so  that  whenever  a  case  occurred  where 
through  the  perjury  of  the  witnesses,  or  the  bring- 
ing to  light  of  circumstances  having  a  material 
bearing  in  the  convict's  favor  it  would  justify  an 
interposition  in  his  favor,  the  power  to  do  that 
should  be  lodged  somewhere.  He  would  consider 
this  subject  fully  before  he  proceeded  to  establish 
arule'in  the  fundamental  law  over  which  legisla- 
tion would  have  no  power.  He  would  suppose  a 
case — that  the  legislature  required  a  six  week's  no. 
tice  of  the  application — that  a  man  was  convict- 
ed of  murder — that  his  sentence  was  to  be  execu- 
ted to-morrow, —  and  that  two  hours  before  then 
it  should  be  discovered  that  he  was  innocent. — 
Was  that  Convention  prepared  to  say  it  should  not 
avail  him — he  should  not  be  pardoned,  because  six 
weeks  notice  of  the  application  had  not  been  given. 
God  forbid  that  any  man  should  have  such  a  de- 
sire. This  matter  should  be  considered,  for  it 
hasty  action  was  had  upon  it,  it  might  lead  to  re 
suits  which  gentlemen  would  regret  for  all  future 
time. 

Mr.  STOW  said  that  gentlemen  had  considered 
the  pardoning  power  simply,  as  an  act  of  mercy 


towards  the  convict.  The  great  error  was  that 
gentlemen  overlooked  the  fact  that  it  was  a  great 
political  power,  to  be  exercised  as  expediency 
might  require.  It  was  often  for  the  benefit  of 
government,  where  a  conspiracy  existed,  to  secure 
witnesses,  or  in  any  other  case  where  it  was  ne- 
cessary, that  all  the  movements  and  the  parties 
should  be  kept  secret.  It  never  would  answer  to 
give  publicity  to  the  names  and  purposes  through 
which  and  for  which  a  pardon  was  exercised.  It 
often  happened  too,  that  men  would  not  suffer 
their  names  to  be  made  public,  although  it 
might  be  of  vast  consequence  to  the  people  that 
the  information  they  possess  should  be  communi- 
cated to  the  Executive.  This  was  therefore  not 
a  mere  question  of  mercy  to  the  accused.  He 
thought  himself,  however,  that  there  must  be  some 
restriction  on  the  exercise  of  the  pardoning  pow- 
er, and  he  should  propose  a  modification  of  this 
amendment  to  carry  out  his  views.  The  Legis- 
lature might  require  the  Governor  to  give  notice 
of  the  application  to  the  District  Attorney  or 
Judge  before  whom  the  case  was  tried  and  to  as- 
sign the  reasons  for  interposing  the  pardoning 
power,  and  to  require  their  being  filled  in  the 
Secretary  of  State's  office.  He  did  not  propose 
to  make  it  obligatory  on  the  Legislature  to  do 
this,  but  to  leave  it  to  their  experience  to  apply 
the  remedy  to  the  improvident  exercise  of  the 
power.  The  safety  and  security  of  our  institu- 
tions and  the  development  of  wide  spread  con- 
spiracy might  depend,  and  often  had  depended  in 
history,  upon  a  sort  of  arrangement  to  be  made 
with  the  felon.  He  would  certainly  not  now 
adopt  a  rule  which  would  give  to  the  guilty  no- 
tice of  this  fact. 

Mr.  WATERBURY  said  the  subject  before  the 
Convention  interested  the  people  of  the  county 
in  which  he  resided,  deeply.  And  he  regretted 
that  he  was  forced  to  say  that  nineteen  of  the 
citizens  of  that  county  were  convicts  in  the  State 
Prison,  two  of  them  having  before  been  under 
sentence  of  death.  They  were  put  there  under 
mere  pleas  of  guilty,  some  of  them  wdthout  a 
trial.  And  this  he  believed,  too,  when  the  laws 
would  have  allowed  them  to  go  free.  Such  was 
his  firm  conviction,  although  perhaps  it  might  be 
the  result  of  prejudice.  The  facts  were  not  on 
record,  and  it  could  not  be  proved,  however. 
With  some  others,  he  had  occasion  to  appeal  to 
the  Executive  to  mitigate  the  punishment  df  the 
two  men  under  sentence  of  death.  Mr.  W.  went 
to  deprecate  the  manner  in  which  the  men  were 
convicted,  and  to  urge  that  in  all  cases  men 
should  be  put  upon  their  trial,  without  regard  to 
their  pleas. 

Mr.  WARD  did  not  see  the  necessity  for  the 
amendment.  It  was  due  to  the  Executive  to 
state  that  so  far  as  his  (Mr.  W.)  observation  had 
extended,  that  he  has  always  pursued  the  very 
course  that  gentlemen  now  propose  should  be 
made  obligatory  upon  him  by  the  Constitution. — 
It  had  been  his  practice  before  granting  a  pardon 
to  address  a  note  to  the  judge  who  tried  the  cause, 
requiring  his  notes  of  the  proceedings  on  the 
trial,  and  not  only  that,  but  information  from  the 
agents  of  the  prison  in  respect  to  the  conduct  of 
the  convict.  This  had  been  the  uniform  practice 
of  the  Executive  for  many  years  past.  He  thought 
therefore  it  would  not  be  advisable  to  insert  this 


293 


amendment  in   the   Constitution,  and  he  should 
•ii  the  report  of  the  committee. 

STETSON  aid  not  consider  the  pardoning 
power  merely  as  an  instrument  of  mercy.  It  had 
a  very  imp>rtant  duty  to  perform,  which  in  his 
opinion,  had  not  been  adverted  to  by  gentlemen. 
It  was  an  instrument  of  justice  in  one  of  its  as- 
pects. It  performed  the  duty  of  equalizing  pun- 
ishments— a  very  important  duty  and  one  which 
he  hoped  might  be  frequently  exercised,  until  the 
unequalities  which  are  given  to  crime  by  the 
Kevised  Statues,  shall  be  more  nearly  reconciled 
to  the  moral  turpitude  ol  the  crimes  themselves. 
There  was  but  a  general  classification  of  crimes, 
punishments  and  courts,  and  lawyers  Knew  that 
frequently  an  individual  was  brought  within  the 
statute  provisions,  by  which  he  would  be  subject 
to  the  same  punishment  awarded  to  a  person  of 
much  higher  conceded  guilt.  He  could  refer  to 
many  instances  of  the  kind  where  it  had  been  prop- 
er for  the  Executive  to  interfere,  not  as  an  act  of 
clemency  but  of  justice  itself,  to  mitigate  the  pun- 
ishment. He  referred  to  a  remarkable  case  of  a 
constructive  attempt  to  kill,  where  a  Canadian 
shot  his  gun  through  a  fence  and  killed  a  horse, 
and  upon  the  principle  that  he  was  bound  to  know 
the  result  of  his  act,  he  was  convicted  of  an  at- 
tempt to  kill.  He  was  accordingly  sentenced  to 
the  shortest  period,  five  years  in  the  State  Prison, 
but  after  a  brief  imprisonment,  he  was  very 
properly  pardoned  out  by  Governor  Seward. — 
There  were  many  instances  of  this  kind,  where 
under  the  classification  of  the  Revised  Statutes, 
the  punishment  of  an  offence  would  be  so  dispro- 
portionate, and  without  regard  to  the  circumstances 
under  which  it  was  committed,  that  it  was  but  jus- 
tice for  the  Governor  to  interpose.  To  the  politi- 
cal consideration  he  would  not  give  so  great  a 
weight  as  did  the  gentleman  from  Erie. 

Mr.  SIMMONS  said  that  the  feeling  which 
prevailed  in  reference  to  the  pardoning  power, 
was  not  unnatural.  It  is  the  almost  necessary 
struggle  that  arises  from  the  feeling  of  equality 
and  consultation  of  many  persons  and  the  little 
remnant  of  monarchy  that  must  be  in  some  form 
or  other  retained  in  every  Constitution.  There 
was  something  that  must  after  all,  be  left  to  a 
one  man  power.  Andj  the  fact  that  it  was  a  one 
man  power,  rendered  the  Governor  liable  to  the 
suspicion  that  it  was  abused.  And  yet  he  had 
not  known  an  instance  where  it  had  been  abused 
from  a  knowledge  of  the  facts  and  circumstances, 
and  he  doubted  not  that  it  had  been  discreetly 
exercised.  Mr.  S.  suggested  a  plan  that  was  in 
operation  in  the  New  England  States,  and  which 
had  operated  well  there — to  form  a  sort  of  cabi- 
net council  to  aid  the  Governor.  Let  it  be  com- 
posed of  the  heads  of  departments.  He  consi- 
dered a  pardon  before  conviction,  as  the  same  as 
entering  a  nolle  pr  sequi,  and  that  power  he 
would  at  any  rate  retain  with  the  Governor.  But 
when  a  man  was  convicted,  the  case  was  differ- 
ent, and  he  would  then  have  the  Governor  under 
some  control.  But  unless  this  pardoning  power 
was  lodged  some  where,  it  would  be  exercised 
by  juries  on  trial,  in  cases  like  that  instanced  by 
the  gentleman  from  Ontario,  (Mr.  STETSOJV.) — 
All  he  desired  was  to  subject  the  Executive  to 
some  rule  which  should  be  most  satisfactory  to 
all,  and  tend  to  promote  uniformity  of  practice 


and  strengthen  the  law.  He  thought  that  for  the 
purpose  of  exercising  the  pardoning  power  as 
well  as  others,  that  there  should  always  be  asso- 
ciated with  the  Governor  the  heads  of  depart- 
ments, to  advise  him,  but  not  to  control.  He 
thought  this  would  tend  to  give  public  satisfac- 
tion in  all  cases  of  pardons. 

Mr.  LOOMIS  was  at  first  somewhat  in  fayor 
of  the  gentleman's  proposition,  but  after  hearing 
the  remarks  that  had  followed  he  was  satisfied 
that  it  was  inexpedient.  It  was  on  the  whole 
nothing  more  than  legislation  upon  this  subject, 
— it  was  doing  by  this  body  what  the  Governor 
already  had  power  to  do.  He  supposed  it  was 
perfectly  competent  for  the  Governor  to  say 
hereafter  that  ne  would  grant  no  pardon,  unless 
accompanied  by  what  was  required  in  this  prop- 
osition. No  doubt  there  had  been  occasional 
abuses  in  the  exercise  of  this  power,  and  that  it 
had  occasionally  been  unduly  exercised.  It  was 
a  necessary  result  of  the  excessive  severity  of 
the  criminal  law.  The  exercise  of  the  par- 
doning power  was  a  high  prerogative  of  the 
State,  to  be  vested  in  some  individual  represent- 
ing the  whole  whole  power  of  the  State,  and 
there  was  no  more  fitter  person  than  its  chief 
executive  officer.  Mr.  L.  went  on  to  remark 
that  although  he  might  be  in  favor  of  an  advisory 
council,  yet  he  would  riot  suffer  them  to  overrule 
the  Governor. 

Mr.  RUGGLES  said  that  the  Constitution  as  it 
now  stands,  gave  to  the  Governor  the  power  to 
grant  pardons  after  conviction,  for  all  offences  ex- 
cept treason  or  impeachment.  It  seemed  to  be 
an  absolute  power  in  the  discretion  of  the  Gover- 
nor, but  there  is  no  mode  prescribed  in  the  Con- 
stitution through  which  that  power  is  to  be  exer- 
cised. In  the  Governor's  report  it  is  stated  that 
the  larger  part  of  these  applications  were  exparte, 
and  most  of  them  were  granted  without  those  who 
felt  an  interest  in  the  question,  having  a  know- 
ledge of  the  application  ;  and  in  some  instances 
these  pardons  took  effect  without  the  knowledge 
of  those  who  took  a  deep  interest  in  them,  and 
applications  were  made  without  the  attention  of 
the  people.being  called  towards  it.  There  might 
undoubtedly,  if  notice  was  required  in  all  in- 
stances, be  inconvenience  resulting  therefrom. 
It  might  exist  in  capital  cases,  but  he  could  per- 
ceive no  objection  that  authority  should  be 
given  to  the  Legislature  to  require  notice 
to  be  given,  in  all  cases  not  capital,  of  ap- 
plications for  pardon.  There  might  be  power  in 
the  legislature  to  provide  for  that  now,  and  there 
might  be  doubt  about  it.  If  so  it  ought  to  be  re- 
moved by  a  provision  in  the  Constitution  itself. — 
He  thought  that  to  require  notices  of  the  applica- 
tion to  be  given  in  the  county  where  the  crime 
was  committed,  except  in  capital  cases,  ought 
to  meet  with  the  approbation  of  the  Con- 
vention, and  it  seemed  to  him  that  it  would 
remedy  the  evil  complained  of  now,  that  pardons 
were  granted  without  knowledge  of  the  facts  in 
the  case. 

Mr.  RHOADES  rose  to  make  a  suggestion  to 
the  gentleman  from  New  York,  that  he 
adopt  the  proposition  he  (Mr.  R.)  had  made,  that 
the  committee  enquire  into  the  expediency 
of  incorporating  into  the  Constitution  a  provision 
for  a  board  of  commissioners  of  the  state  prison 


294 


officers,  who  should  have  the  general  power 
and  control  of  the  prisons,  and  be  associated 
with  the  governor  and  constitute  the  pardoning 
power  for  all  cfterices  punishable  by  in. prison 
tnent  in  the  State  Prison.  He  should, at  a  proper 
time  make  this  motion.  He  would  suggest  to  the 
gentleman  from  New  York  now,  that  he  suffer  the 
question  to  be  taken  on  his  proposition.  It  was  a 
matter  ot  little  consequence  how  it  was  decided  in 
committee.  This  provision  which  he  had  suggest- 
ed would  at  least  leave  the  pardoning  power  free 
from  the  imputation  of  being  hastily  and  without 
due  consideration  exercised. 

Mr.  NICHOLAS  thought  this  to  be  the  proper 
time  and  place  to  dispose  of  this  question.  He 
thought  any  such  connection  of  the  State  Prison 
Inspectors  with  the  governor  as  proposed  by  the  go. 
vernor,  would  be  very  inexpedient  for  several  rea- 
sons. The  officers  of  the  prison  could  not  be 
conveniently  here,  to  attend  to  these  daily  appli- 
cations for  pardon  without  neglecting  their  other 
duties.  He  thought  the  amendment  of  the  gen- 
tleman from  New  York  would  not  attain  the 
object  he  had  in  view.  He  could  not  conceive 
how  it  would  be  the  mears  of  bringing  before 
the  Governor  the  necessary  information  to  enable 
him  to  act  discreetly  in  the  exercise  of  this 
power,  An  excitement  might  be  got  up  in  the 
neighborhood  and  lead  to  counter  memorials  and 
statements,  but  after  all,  •  this  was  not  the  kind 
of  information  that  the  Governor  should  rely 
upon.  He  did  not  belive  that  there  was  ever 
any  intentional  abuse  of  this  power,  it  preceded 
entirely  from  the  exercise  of  the  best  sym- 
pathies of  our  nature.  But  this  power  must 
be  lodged  somewhere,  and  he  did  not  believe 
it  could  be  so  safely  invested  in  any  other 
hands  as  in  that  in  which  it  was  now  vested.  To 
divide  the  responsibility  it  appeared  to  him,  would 
be  to  fritter  it  away,  and  it  would  not  be  observed 
with  that  care  and  discretion  that  it  has  been  by 
one  man.  And  if  the  duties  of  the  Governor  should 
be  curtailed,  he  would  have  more  leisure  hereaf- 
ter than  heretofore  to  examine  these  matters. — 
Mr.  N.  repeated  his  objections  to  the  association 
of  the  State  Prison  Inspectors  with  the  Governor 
in  this  matter. 

Mr.  WATERBURY  was  well  aware  from  per- 
sonal knowledge,  that  the  Governor  required  the 
most  full  and  satisfactory  evidence  of  the  proprie- 
ty of  ihe  pardon,  before  a  reprieve  was  given. — 
He  believed  there  was  no  dangtrto  be  apprehend- 
ed from  leaving  with  him  the  responsibility  or 
the  exeicise  of  the  pardoning  power,  while  by 
giving  it  lo  a  halt  dozen,  the  lights  of  the  criminal 
to  a  lair  hearing  would  be  much  restricted,  by 
the  chances  of  the  different  opinions  which  differ- 
ent persons  would  form  from  the  same  testimony. 

Mr.  TALLMADGE  w<is  in  f <vor  of  the  section 
as  it  sN.o.l  in  the  existing  constitution.  The 
power  of  pardon  was  an  essential  power  in  a  gov- 
ernment, which  must  be  lodged  somewhere,  and 
no  where  could  it  be  more  safely  lodged  than 
where  it  had  been,  for  so  long  a  period— with  the 
Governor — who  was  icsponsible,  at  stated  periods-, 
to  the  people.  Though  he  confessed  this  power 
had  been  indiscreetly  exercised  in  some  instances, 
yet  he  did  not  believe  that  it  was  from  bad  mo- 
tives— nor  were  they  cases  of  such  importance  as 
to  i equ ire  essential  changes  in  the  existing  con- 


stitution.  It  was  better  to  putup  with  occasional  in. 
discretions,  than  to  place  embarrassing  or  prohibi- 
tory restraints  upon  its  exeicise — or  to  interfere 
with  the  proper  jurisdiction  of  the  executive. 

Mr.  STEPHENS  would  agree  to  the  suggestion 
of  the  gentleman  from  Onondaga,  that  his  proposi- 
tion should  be  voted  on  now. 

Mr.  STOW  thought  this  the  proper  time  and 
place  to  dispose  of  the  amendment,  and  of  the 
question  as  to  where  the  pardoning  power  should 
be  vested.  And  he  now  gave  notice  that  he 
should  follow  up  this  proposition  with  another 
which  he  should  insist  on  having  adopted. 

Mr.  STEPHENS  then  said  that  he  regarded  all 
that  had  been  said  in  regard  to  district  attorneys, 
and  an  increase  of  lawyers'  fees  as  entirely  inap- 
plicable to  his  amendment — requiring  as  it  did, 
nothing  that  might  not  be  done  by  the  convict  or 
his  friends.  As  to  the  case  stated  by  the  gentle- 
man from  Orange, it  was  an|extreme  one,  not  likely 
to  occur.  As  a  general  rule  certainly,  the  mat- 
ter could  be  safely  left  to  the  Governor,  with  the 
statements  on  both  sides  before  him — and  if  it 
should  appear  that  the  person  was  rightly  con- 
victed, by  a  proper  tribunal,  he  ought  to  abide 
the  punishment  prescribed  by  law.  But  he 
would  not  follow  the  gentleman  further.  It  was 
a  subject,  he  confessed,  with  which  he  was  not 
familiar  in  all  its  bearings — and  he  acquie«ced  in 
the  suggestion  of  the  gentleman  from  Onondaga 
very  cheerfully. 

Mr  TALLMADGE  here  said  that  he  should 
move  at  the  proper  time  to  strike  out  all  the  new 
matter  in  this  section,  leaving  it  as  it  stood  in 
the  old  Constitution. 

Mr.  RICHMOND  said  that  if  he  understood  the 
gentleman  from  New  York  (Mr.  STEPHENS)  cor- 
rectly, he  was  contending  that  when  all  the  pro- 
ceedings had  been  technically  legal,  every  indi- 
vidual convicted  must  suffer  the  penalty.  He  could 
imagine  cases  of  conviction  where  the  proceed- 
ings were  legal,  but  where  great  injustice  might 
be  done  by  the  infliction  of  the  penalty.  A  man 
might  be  convicted  on  the  testimony  of  a  witness, 
who  it  might  turn  out,  might  be  mistaken.  The 
proceedings  might  all  be  legal,  and  yet  great 
wrong  be  done.  One  word,  as  to  the  idea  of  the 
gentleman  from  Onondaga,  that  we  should  have  a 
board  composed  of  the  governor  and  the  inspec- 
tors of  the  prisons — 

Mr.  RHOADES  would  explain.  He  had  ad- 
vocated no  such  thing.  He  merely  alluded  to 
an  enquiry  he  had  proposed — but  avowed  no  at- 
tachment to  any  plan  of  the  kind. 

Mr.  RICHMOND  understood  the  gentleman  to 
say  that  when  the  time  arrived,  he  would  press 
his  plan.  Before  any  board  was  to  be  associated 
with  the  Governor — whether  composed  of  the 
State  Prison  officers  or  of  the  Inspectors— he 
wished  first  to  know  in  what  way  they  were  to  be 
appointed ;  if  by  the  people,  then  he  was  disposed 
to  be  in  favor  of  it.  There  was  no  doubt,  at  all 
events,  but  that  the  pardoning  power  should  be 
placed  somewhere. 

Mi.  ISiMMOINfc)  concurred  in  the  opinion  that 
had  been  expressed  in  relation  to  the  preservation 
ot  the  pardoning  power  as  the  attribute  of  mercy. 
And  why  should  we  seek  to  get  out  of  this  princi- 
ple because  it  wassuppogd  to  have  something  of 
monarchy  in  it.__Tht  idea  of  Montesquieu  that  the 


295 


government  was  a  Republic  disguised  un-  ' 
dt-r  the  fortn  ol'.i  monarchy,  was  to  some  ext>  tit 
true,  compared  with  some  other  monarchies  of 
Europe.  And  on  the  other  hand,  it  was  a  matter 
of  surprise  that  our  government,  under  the  form 
of  republicanism,  was  perhaps  the  only  kind  of 
government  in  the  world,  that  had  real  monarchy 
in  it.  A  convi  t  in  England  wa-s  pardoned  by  the 
Queen  ;  but  she  never  knew  any  thing  about  it  ; 
it  was  done  by  a  cabinet.  The  King  arid  Q  ieen 
were  persons  of  straw.  Why  shouU  we  be  so 
peculiar  —  when  a  monarchy  repudiated  this  one 
man  power  and  turned  it  into  a  creaiure  of  straw? 
Why  should  we  insist  on  having  a  real  man  ex. 
Brewing  the  whole  power  alone?  And  this  too 
where  the  general  feeling  inlhe  country  was  a- 
gainst  these  one-man  decisions,  whether  by  a 


judge     or    an     Executive?       As    t<>     dispensing 
with    this     power     altogethe 


this     preroga- 


tive of  mercy  —  he  would  not  do  it  —  he  would 
rather  go  for  having  it  precisely  as  it  was.  — 
Never,  until  the  principal  was  established  that  a 
bird  in  the  hand  was  worth  two  in  the  bush,  would 
he  give  it  up  for  a  moment.  He  recollected  that 
in  Vermont  some  two  years  since,  two  men  were 
sentenced  to  be  hung  on  their  own  confession,  as 
having  murdered  a  man,  who  was  before  the  day 
of  execution  found  alive  and  brought  into  Ver- 
mont. The  people,  without  waiting  for  the 
formality  of  a  pardon,  opened  the  prison  doors 
and  let  them  out.  There  must  exist  the  pardon- 
ing power  to  interpose,  for  evidences  of  the  in- 
nocence of  a  convict  might  come  to  light  even 
but  a  few  moments  before  the  time  of  execution 
—  he  would  not  leave  the  lives  of  persons  to  stand 
on  the  mere  naked  law.  It  would  be  found  that 
if  it  d-;d  not  exist  elsewhere  that  juries  would 
exercise  it.  There  were  strong  suspicions  pre- 
vailing of  an  abuse  in  the  exercise  of  the  pardon- 
ing power,  and  the  effect  of  it  may  be  to  control 
the  Executive  to  the  great  injury  of  the  cause  of 
humanity  and  mercy.  And  in  order  to  avoid  such 
a  state  of  things  he  was  in  favor  of  an  Executive 
council,  not  merely  for  this  purpose  but  for  some 
others  he  would  not  now  mention.  It  was  al- 
ready in  existence  in  many  of  the  New  England 
States  where  it  worked  well. 

Mr.    TALLMADGE-  did  not    know  that    he 
should  object  to  this  proposition  for  an  Executive 


punishments.  He  would  not  go  as  far  as  the 
gentleman  from  New  York,  who  said,  and  per- 
haps he  spoke  hastily,  that  it  never  should  be 
exercised  as  an  act  of  mercy.  It  was  not  for  frail 
and  erring  humanity,  whose  dependence  on  the 
Divine  forbearance  and  mercy  was  daily  recog- 
nized, to  assert  or  act  on  such  a  principle. 

Mr.  STOW  moved  a  substitute  for  the  proposi- 
tion of  Mr.  STEPHENS,  as  follows: 

Aftcrthe  word  "  proper,"  add  "  But  the  Legislature  may, 
by  law,  require  that  notice  shall  be  given  to  a  judge  before 
whom  the  convict  was  tried,  or  to  the  district  attorney  of 
the  county  where  the  conviction  was  had,  or  to  both  such 
judge  and  district  attorney,  before  a  pardon  shall  be  grant- 
ed; and,  also,  that  the  Governor  shHil  file  his  reasons  for 
granting  a  pardon,  and  the  documentary  evidence  on 
which  he  acted,  with  the  Secretary  of  State." 

Mr.  S.  said  the  pardoning  power,  as  he  had 
shown  before,  was  indispt3nsable,  as  a  matter  of 
public  policy.  The  notoriety  proposed  to  be  given 
to  applications  for  pardon,  and  the  grounds  for 
them,  would  often  defeat  the  object  and  endanger 
the  public  safety,  as  for  instance,  in  a  case  of  wide 
spread  conspiracy  against  society.  He  preferred 
also  to  see  the  power  vested  in  the  Executive, 
where  experience  had  shown  it  generally  to  have 
worked  well.  Any  errors  that  had  arisen,  were 
from  misinformation,  or  want  of  information,  and 

this  he  proposed  to  remedy 'by  his  amendment. 

He  was  opp  sed  to  the  proposition  for  an  execu- 
tive council  as  tending  to  divide  and  thus  to  frit- 
ter away  if  not  destroy  the  responsibiliiy.  The 
State  Prison  Inspectors  were  the  last  men  he 
should  select  to  compose  such  a  board.  If  he 
wanted  to  select  a  ma.i  to  assist  n  Spanish  priest 
in  improving  on  torture,  he  would  apply  to  those 
vho  had  had  the  keeping  and  managing  of  state 
prison  convicts.  Mr.  S.  would  give  The  Legisla 


ture  some  slight  power  over  the  mode  in  which 
the  Governor  should  exercise  this  power,  and  this 
was  the  only  modification  he  would  make. 

Mr.  MORRIS  opposed  the  amendment.  It 
made  delay  necessary.  He  had  another  objection. 
— and  he  spoke  from  practical  observation  when 


he  said  that  when  a  man  had  been  convicted  b 


conspiracy,  and  that  conclusively  shown,  the  effect 
of  such  a  notice  as  this  would  be  to  add  perjury 
upon  perjury.  Again,  it  was  unnecessary,  for  he 
knew  the  fact  to  be  that  the  Executive  always 
took  the  precautions  suggested  in  this  amend- 

Council  when  it  came    properly  b?fore  the  Con-   ment — applying  always  to  the  judges  and  the  dis- 
vention,  but  it  was    hardly  in  order    to  discuss  it !  trict  attorneys  for  their  notes  of  testimony  and  their 


now.  But  the  policy  of  this  State,  Mr.  T.  said, 
since  the  formation  of  this  government,  had  been 
to  choose  men  capable  for  their  places,  and  to 
hold  them  responsible,  and  for  their  action.  She 
stood  on  the  same  rock  now.  If  New  England 
had  her  Executive  council,  be  it  so,  far  be  it  from 
him  to  say  that  it  was  wrong.  But  he  did  not  feel 
the  necessity  for  this  new  radical  change  in  the 
principles  upon  which  our  Government  had  been 
based  from  its  foundation  down  to  the  present 
time.  And  when  it  was  in  order  he  should  pro- 
pose his  amendment  with  a  view  of  restoring  this 
section  to  the  shape  in  which  it  stoo*  in  the 
present  Constitution. 

Mr.  STOW  went  on  to  sustain  this  amendment. 
He  regarded  the  pardoning  power  as  indispensa- 
ble— not  merely  as  an  exercise  of  mercy — but  as 
often  a  matter  of  absolute  right  that  the  convict 
should  be  pardoned— and  to  prevent  excessive 


opinions  upon  the  case.  No  doubt  Executives 
had  erred  sometimes;  but  these  errors  were  on 
the  side  of  mercy,  and  for  that  human  nature 
should  not  be  censured.  He  trusted  the  commit- 
tee would  not  adopt  the  amendment. 

The  question  was  here  taken,  and  Mr.  STE- 
PHEN'S amendment  negatived. 

Mr.  W.  TAYLOR  offered  the  following,  on 
behalf  of  Mr.  CHATFIELD  : 

Alter  the  word  "proepe'  mserrt  "  but  before  any  such 
pardon  shail  be  granted,  the  Inspectors  of  the  State  prison 
shall  inquire  >mo  the  case  of  every  convict  for  whom  a 
pirJon  shail  be  asked,  and  i-hall  communicate  to  the  Go- 
vernor all  the  facts  and  circumstances  in  relation  thereto.' 

Mr.  W.  TAYLOR  said  his  impressions  were  in 
favor  of  leaving  the  section  as  it  was  reported.— 
There  could  no  evil  however  result  from  this,  as 
it  required  nothing  more  than  the  Governor  had 
felt  it  incumbent  on  him  to  do  without  it. 

Mr.  NICHOLAS  did  not  believe  that  gny  pub 


296 


lie  officer  ever  withheld  such  information  when 
applied  to  for  it  ?  This  amendment  then  could 
have  no  other  effect  than  to  subject  the  officers 
designated,  to  importunities  from  the  friends  of 
convicts. 

Mr.  PATTERSON  remarked  that  the  keepers 
of  the  prisons  were  to  be  applied  to  for  this  infor- 
mation, if  any  one.  The  inspectors  knew  nothing 
of  these  cases ;  nor  in  all  cases,  were  persons  for 
whom  pardons  were  asked,  confined  in  the  State 
prison. 

The  question  being  taken,  the  amendment  was 
rejected. 

Mr.  HARRISON  moved  the  following  amend- 
ment to  this  5th  section  : 

But  no  person  convicted  of  murder,  whose  sentence  of 
death  has  been  commuted  into  imprisonment  for  life  in  a 
State  Prison,  shall  be  pardoned  afterwards,  exct  pt  upon 
proof  of  innocence,  insanity  of  the  convict  at  the  time  the 
crime  was  committed,  or  such  irregularities  in  the  pro- 
ceedings of  the  court,  or  mitigating  circumstances  in  the 
case,  as  shall  render  the  interference  of  the  Executive  ne- 
cessary. Every  such  case  it  shall  be  the  duty  of  the  Go- 
vernor, in  his  discretion,  to  report  to  the  Senate,  with  a 
comprehensive  statement  of  facts  and  circumstances,  for 
their  determination  thereon;  and  a  majority  of  the  Senate 
may  direct  the  sentence  to  be  reversed,  or  that  a  pardon 
be  granted  to  the  criminal. 

Mr.  TALLMADGE  moved  to  strike  out  of  the 
4th  section  these  words:  "He  may  commute 
sentence  of  death  to  imprisonment  in  a  State 
prison  for  life.  He  may  grant  pardons  upon  such 
conditions,  and  with  such  restrictions  and  limita- 
tions as  he  may  think  proper."  He  said  that  the 
Constitution  of  1777  gave  the  Governor  the  power 
to  pardon  in  all  cases  except  those  of  treason  and 
murder.  And  in  1821  "  murder"  was  put  in  the 
general  list  of  pardons  which  he  might  grant,  and 
"  treason  and  impeachment"  were  made  excep- 
tions. In  1777  the  Governor  had  the  power  to 
reprieve  until  the  Legislature  met,  and  they  had 
the  power  to  pardon.  So  that  the  jewel,  the  dia- 
mond of  mercy,  might  hang  upon  the  crown  of 
power ;  the  power  to  suspend  execution  given  to 
the  immediate  and  active  agent  of  power,  the 
Executive — leaving  the  details  of  the  pardon  to 
the  Legislature,  from  time  to  time.  The  princi- 
ple of  mercy,  the  power  to  reprieve,  being  in  the 
hands  of  the  Executive,  and  leaving  the  details 
of  pardon  to  the  Legislature,  from  time  to  time. 

Mr.  BROWN  was  opposed  to  having  this  mat- 
ter left  to  the  Legislature,  at  all.  He  hoped  the 
motion  to  strike  out  would  not  prevail.  He  had 
occasion  to  look  at  the  Constitution,  last  winter, 
while  the  case  of  the  Delaware  county  prisoners 
engaged  the  public  attention,  and  he  was  sur- 
prised to  find  no  express  authority  in  the  Consti- 
tution to  the  Executive  to  commute  sentence  of 
death  to  imprisonment  in  the  State  prison.  He 
however  found  the  power  in  the  statute. 

Mr.  WORDEN  begged  to  ask  the  gentleman 
from  Orange  if  he  was  not  aware  that  doubts  ex- 
isted as  to  the  Constitutionality  of  the  statute  ? 

Mr.  BROWN  said  he  was  aware  of  that  diffi- 
culty, and  he  therefore  was  glad  to  find  the  com- 
mittee had  embodied  the  power  in  the  article  of 
the  Constitution  under  consideration.  He  hoped 
it  would  be  suffered  to  remain  where  it  was,  as 
necessarily  connected  with  the  just  and  prudent 
exercise  of  the  pardoning  power. 

Mr.  STOW  moved  to  amend  the  section  by  in- 
serting  after  the  word  "  proper"  in  the  6th  line, 


the  words  following  to  wit : — "  But  the  legisla- 
ture may,  by  law,  require  that  notice  shall  begiv- 
en  to  a  judge  before  whom  the  convict  was  tried, 
or  to  the  District  Attorney  of  the  county  where 
the  conviction  was  had,  or  to  both  such  Judge  and 
District  Attorney,  before  a  pardon  shall  be  grant, 
ed  j  and  also  that  the  Gov.  shall  file  his  reasons 
for  granting  a  pardon,  and  the  documentary  evi- 
dences on  which  he  acted,  with  the  Secretary  of 
State." 

Mr.  BROWN  in  reply  to  a  question  from  some 
member  stated  the  course  pursued  now  was  to  call 
on  the  governor  tor  this  information,  and  he  was 
always  willing  to  furnish  it. 

Mr.  STOW  said  that  great  difficulty  and  much 
evil  had  arisen  in  many  cases  from  the  Governor 
negleciing  to  give  notice  of  his  intention  to  pardon, 
to  the  Judge  or  District  Attorney  before  whom  a 
criminal  was  tried. 

The  amendment  was  rejected,  43  noes  to  38 
ayes. 

Mr.  CROOKER  then  moved  to  strike  out  the 
sixth  section  and  insert  the  following: — 

"  The  governor  shall  have  the  power  to  giant  reprieves 
and  pardons,  or  may  commute  the  sentence  to  imprison 
ment  lor  life,  or  a  term  of  years,  and  with  such  restric- 
tions and  limitations  as  he  may  think  proper,  after  con 
viction  in  ail  cases,  except  treason,  where  the  penalty  of 
the  crime  is  death,  An  I  upon  convictions  lor  treason  he 
shall  have  power  to  suspend  the  execution  ol  the  sentence 
until  the  case  shall  be  reported  by  him  to  the  legislature 
at  its  next  session,  when  the  legislature  shall  either  pai- 
don  or  direct  the  execution  ot  the  sentence  or  grant  a  fur- 
ther reprieve  " 

Mr.  MORRIS  asked  Mr.  CROOKER  if  he  meant 
to  include  impeachments. 

Mr.  CROOKER  said  that  he  did.  He  also  said 
several  gentlemen  have  complained  of  abuses  in 
the  exercise  of  the  pardoning  power,  and  we 
have  been  told  of  the  great  numbers  who  have 
been  the  subjects  of  executive  clemency  in  former 
years.  He  was  one  of  those  who  do  not  believe 
that  too  many  pardons  have  been  granted.  On 
the  contrary  he  believed  there  have  been  by  far 
too  few.  He  admitted  that  oftentimes  the  wrong 
individuals  have  been  set  at  liberty.  No  com- 
plaints of  an  undue  exercise  of  the  pardoning 
power  comes  from  the  country.  The  cases  where 
abuses  have  occurred,  it  any,  are  those  arising  in 
large  towns  and  cities.  And  who  are  the  indivi- 
duals who  in  almost  all  cases  are  the  subjects  of 
executive  tavor  ?  They  are  the  rich  and  the  rela- 
tives of  the  rich  and  powerful,  and  not  the  hum- 
ble poor-  They  are  oftentimes  of  the  worst  class 
of  convicts.  Such  convicts  can  always  procure 
the  means  of  reaching  the  Governor's  ear,  while 
by  far  the  largest  class  of  convicts  are  placed  en- 
tirely beyond  the  executive  clemency  by  poverty. 
But  a  few  years  since  he  wa*  present  at  the  trial 
and  conviction  of  an  aged  and  ignorant  man  for 
the  crime  of  offering  to  pass  a  counterfeit  fifty- 
cent  piece.  The  evidence  was  insufficient  to 
procure  a  conviction  under  any  circumstances.— 
The  old  man  was  poor  and  a  stranger,  and  he 
served  a  term  in  the  prison  at  Auburn.  He  also 
knew  aifother  case  where  three  individuals  were 
concerned  in  stealing  a  few  bushels  of  wheat  from 
a  barn.  The  principal  rogue  escaped  a  trial  by  means 
of  his  money.  The  second  man  was  convicted 
and  sentenced  to  two  years  imprisonment.  The 
humble  and  ignorant  hireling  teamster  was  con- 
victed and  sentenced  to  seven  years  confinement, 


297 


and  is  now  serving  his  last  year  in  Auburn.  He 
i  mere  driver — not  the  owner  of  the  team — 
the  most  ignorant,  and  least  guilty  of  all.  But 
he  was  poor,  and  without  influential  friends  to 
intercede  ia  his  behalf.  Another,  and  a  stronger 
case,  was  one  occurring  in  his  own  county,  and 
in  which  he  had  a  humble  share.  It  was  tried  in 
January  last,  and  he  acted  as  counsel  for  the  peo- 

Ele.  The  individual  was  tried  for  attempting  to 
ire  a  man  to  burn  a  mill.  The  only  witness  was 
the  accomplice;  and  instead  of  that  witness  being 
supported  by  evidence  of  any  kind,  he  was  im- 
peached, both  by  his  bad  character,  (since  found 
to  have  been  notorious,)  and  by  his  own  repeated 
declarations,  out  of  court,  that  his  charge  wras 
false.  But  the  individual  was  convicted,  and  is 
now  in  Auburn.  In  this  case,  he  apprehended 
there  was  but  one  opinion,  in  the  place  of  trial — 
and  that  was,  that  the  prisoner  was  entirely  inno- 
cent of  the  crime  for  which  he  was  convicted. 
If  a  petition  for  his  pardon  should  be  presented 
to  him,  he  should  feel  bound  to  sign  it.  But  he 
too  is  poor,  and  no  arm  of  power  is  raised  for  him. 
There  is  no  way  now  to  bring  the  poor  convict's 
case  within  the  pale  of  Executive  clemency.  He 
desired  to  remedy  this  evil.  He  proposed  to  take 
away  from  the  Governor  the  pardoning  power,  in 
all  cases  of  conviction  for  offences  punishable  in 
a  state  prison.  His  amendment,  if  adopted,  will 
relieve  him  from  this  onerous  duty.  The 
Governor  is  usually  elected  from  other  con- 
siderations than  his  ability  to  judge  and  de- 
termine nice  legal  questions.  He  is  also  a 
politician  and  may  by  possibility  be  biassed  in 
the  exercise  of  this  important  power  by  political 
or  other  improper  considerations.  He  proposed 
to  relieve  him  from  both  the  labor  and  the  sus- 
picion of  partiality.  If  his  amendment  should  be 
adopted,  he  proposed  to  confide  the  pardoning 
power  in  all  State  prison  cases  to  a  Board  ot  Com- 
missioners to  be  located  either  at  the  prisons  or 
in  this  city,  he  cared  not  which.  This  Board 
should  be  composed  of  able  and  learned  men  and 
placed  if  possible  beyond  the  reach  of  the  sus- 
picion of  favoritism  or  the  influence  of  political 
considerations.  To  this  Board  he  would  require 
the  court  before  whom  a  convict  was  tried,  to  re- 
turn a  full  copy  of  the  evidence  in  the  case,  to- 
gether with  a  copy  of  the  indictment  and  the  de- 
cisions of  the  court  on  all  questions  decided  at 
the  trial  whenever  required  to  do  so  by  the  coun- 
sel for  the  convict.  By  this  or  some  similar 
course  the  case  of  the  poor  convict  could  be 
brought  within  the  reach  of  mercy.  That  mercy 
is  now  denied  him.  By  the  present  system,  how- 
ever innocent  the  poor  convict  may  be,  of  the  of- 
fence of  which  he  is  convicted,  no  door  of  relief 
is  open  for  him.  He  goes  into  prison  guiltless, 
serves  out  his  term,  and  comes  out  for  revenge 
and  educated  for  crime.  The  State  of  New  York 
owes  it  to  the  poor  convict  to  bring  his  case  with- 
in the  power  of  pardon.  In  effecting  this  object 
he  cared  but  little  who  shall  be  the  Commission- 
ers or  where  they  shall  be  located.  But  he  would 
require  them  patiently  to  examine  every  case  pre- 
sented for  their  decision. 
The  amendment  was  put  and  lost. 
Mr.  BROWN  moved  to  strike  out  in  the  10th 
line  all  after  the  word  "reprieve,"  and  down  to 
the  end  of  the  section  thus :  to  strike  out  all 

19 


this  : — "He  shall  in  his  annual  message  commu- 
nicate to  the  Legislature  each  case  of  reprieve, 
commutation,  and  pardon  granted  since  the  next 
previous  annual  message  of  the  Governor,  stat- 
ing the  name  of  the  convict,  the  crime  of  which 
he  was  convicted,  the  sentence  and  its  date,  and 
the  date  of  the  commutation,  pardon  or  reprieve  " 

Mr.  WORDEN  asked  if  the  Legislature  had 
not  the  power  to  get  at  this  information  now. 

Mr.  BROWN  said  that  they  had;  but  there 
were  other  reasons  why  the  Governor  should  not 
communicate  this  information  to  the  people  in 
this  way.  The  message  of  the  Governor  is  a 
grave  and  important  state  paper ;  and  it  should 
not  be  disfigured  with  the  names  of  criminals 
who  may  have  been  pardoned  within  the  preced- 
ing year. 

Mr.  MORRIS  said  that  the  committee  had  put 
that  clause  there  to  operate  as  a  check  on  the  op- 
erations of  the  Governor  in  respect  to  the  pardons 
he  may  have  granted  during  the  preceding  year. 
And  they  inserted  the  proviso  that  he  should 
communicate  this  information  relative  to  these 
pardons  in  his  annual  message,  so  that  the  whole 
community  might  have  this  information  before 
them.  He  would  therefore  in  order  to  meet  the 
objections  of  the  gentleman  from  Orange  (Mr. 
BROWN)  strike  out  these  words,  "  in  his  annual 
message,"  and  insert  annually. 

Finally,  after  various  suggestions,  the  words 
"  in  his  annual  message"  were  stricken  out,  and 
also  the  words  "  granted  since  the  next  previous 
annual  message  of  the  Governor."  This  was 
adopted  without  dissent.  j§ 

Mr.  CROOKER  then  moved  to  insert  after  this 
sentence — "  He  may  commute  sentence  of  death 
to  imprisonment  in  a  State  prison  for  life,"  the 
words  "  or  for  a  term  of  years." 

Mr.  PATTERSON  was  opposed  to  this;  where 
the  Governor  is  allowed  to  commute  sentence  of 
death,  he  would  confine  his  power  to  imprison- 
ment for  life. 

Mr.  CROOKER  :     Suppose  it  was  a  boy  ? 

Mr.  PATTERSON  :  Well,  if  it  was  a  boy  who 
committed  murder  I  would  punish  him 

Mr.  >WATERBURY  said  he  liked  the  words 
"  a  term  of  years"  better. 

Mr.  UAsCUAl  said  that,  it  may  well  be  conten- 
ded that  after  ihe  Gov.  shall  have  gratjted  a  re- 
prieve or  conditional  pardon— that  the  pardoning 
power  is  expended,  and  a  lull  pacdon  denied  in  a 
c;:se  when  the  innocence  of  a  partv  may  be  appa- 
rent. 

Mr.  O'CONOR  said  that  his  colleague  (Mr.SHEp- 
ARD)  had  a  resolution  containing  this  whole  sub- 
ject 

Mr.  SHEPARD  submitted  his  resolution  to 
be  considered  hereafter. 

Mr.  CROOKER'S  amendment  was  put  and  lost. 

Mr.  ARCHER  moved  to  amend  by  adding  after 
section  5,  the  words: 

"  In  case  the  Legislature  should  abolish  capital  punish- 
ments, the  Governor  shall  have  110  power  to  pardon  or 
shorten  the  term  of  imprisonment  of  such  persons  as  may 
be  convicted  ot  murder,  except  with  the  unanimous  con- 
sent of  both  branches  of  the  Legislature." 

Mr.  CROOKER  suggested  the  word  "  unani- 
mous" should  he  stricken  out.  This  was  done 

Mr.  RICHMOND  said  he  hoped  they  would 
have  it  so  as  that  it  should  be  by  a  majority  of  all 


298 


was 


th 


the  members  of  the  Legislature  elected.  He 
wanted  that  fixed  all  through  the  Constitution, 

The  amendment  was  lost. 

Mr.  RHOADES  moved  to  amend  the  5th  sec- 
tion, by  adding  after  the  word  "offences"  in  the 
2d  line  the  words,  "  except  for  which  the 
offender  may  be  sentenced  to  the  State  prison, 

Mr.  SHEPARD  then  called  up  his  amendment.   proper> 
It  was  as  follows ; 

Substitute  lor  the  first  part  of  the  section  down  to  and 
including  the  word  "limitations,"  these  words:— "1  he 
Governor  shall  have  power  to  grant  commutations,  and 
nardons  after  conviction,  except  in  cases  of  treason  and 
impeachment,  in  such  manner,  on  such  terms,  and  under 
such  restrictions  as  he  may  think  proper." 

Mr.  SHEPARD  said  that  this  was  an  impor- 
tant alteration  in  the  phraseology;  and  rendered 
the  matter  clear  as  to  the  general  power  of  com- 
mutations. As  it  stood  in  the  statute  they  were 
controlled  by  the  Constitution.  The  committee 
seemed  to  have  been  in  a  fog  here.  They  gave 
the  power  to  commute  for  treason. 

Mr  WORDEN  thought  the  phraseology 
better— the  language  and  meaning  clearer 
that  of  the  committee;  and  he  hoped  it  would  be 

a  Mr .G MORRIS  assured  his  young  colleague  (Mr 
SHEPARD)  that  the  committee  had  not  been  in 
a  fog-  they  had  not  reported  this  without  knowing 
something  of  what  they  were  about 

Mr  SHEPARD  begged  to  explain.  He  had 
no  intention  to  impute  ignorance  to  any  member 
of  committee  No. 5—  nothing  could  be  farther  from 
his  feelings -but  he  did  think  that  the  provisions 
reported  in  regard  to  commutation  of  sentence  o 
death  to  imprisonment  in  a  State  Prison  for  life 
was  inconsistent,  with  the  exception  of  reprieves 
and  pardons  after  conviction  in  cases  of  treason. 
The  power  to  commute  sentence  of  death,  being 
given  generally,  he  had  no  doubt  it  was  applica- 
ble to  cases  of  treason,  yet  the  policy  of  our  gov- 
ernment was  against  such  a  commutation  and  in 
favor  of  keeping  that  right  to  the  legislature  It 
was  true  the  new  provision  reported,  was  taken 
from  a  Statute  of  the  State,  but  as  a  statute  it 
would  be  overidden  by  the  Consitution,  while  as 
a  pait  of  that  instrument,  it  must  stand  so  long  as  it 
could  be  construed  with  the  other  parts.  Upon  this 
mode  of  construction  the  power  to  pardon  in  cases 
of  treason  might  be  exercised  by  the  Governor  and 
he  (Mr.  S.)  did  not  suppose  that  to  be  the  design 
of  the  committee. 

Mr.  SHEPARD  gave  way  to  a  motion  to  rise; 
and  the  committee  rose  and  reported. 

The  Convention  then  adjoumed  till  to-morrow 
morning  at  9  o'clock. 


POWERS  AND  DUTIES  OF  THE  GOVERNOR,  &C. 

Mr.  CHATFIELD  in  the  Chair. 

The  question  was  upon  the  following  amend- 
ment by  Mr.  SHEPARD,  to  the  first  part  of  the 
fifth  section: 


The  Governor  shall  have  power  to  grant  reprieves, 
jommutations  and  pardons  after  conviction,  except  in 
cases  of  treason  and  impeachment,  in  such  manner,  on 
;uch  terms,  and  under  such  restrictions  as  he  may  think 


TUESDAY,  (35M  day,)  July  14. 
Prayer  by  the  Rev.  Mr.  HUNTING-TON. 


noyci   uj  v* 

Mr  TOWNSEND  moved  an  enquiry  as  to  the 
establishment  of  a  State  Board  of  Assessors  with 
power  to  equitably  adjust  the  relative  appraise- 
ment of  the  real  and  personal  estate  in  the  several 
counties,  with  reference  to  a  just  and  uniform  levy 
of  the  State  or  National  direct  taxation.  Agreed 

t0*0n  motion  of  Mr.  BAKER,  the  convention  went 
into  committee  of  the  whole  on  the  report  rela- 
tive to  the 


Mr.  SHEPARD  begged  the   indulgence  of  the 
committee  in  defence  of  the  amendment  offered 
ay  him   yesterday.     It  did   not  differ  materially 
from  the  proposition  reported  by  the  committee 
of  which  his  colleague  (Mr.  MORRIS)  was  chair- 
man, except  in  bestowing  upon  the  Executive 
the  power  to  commute  sentence  of  death,   with- 
out imposing  any  limitation  as  to  the  penalty  that 
should  be  substituted.     Mr.  S.  regretted  that  the 
expediency  of  the  pardoning  power  had  been  ques- 
tioned. This  power  had  been  exercised  in  all  coun- 
tries, in  all   ages,  and  under   every  Constitution 
and  form  of  government.     Its  necessity  was  ap- 
parent in  a  vast  number  of  cases,  where  injustice 
had  been   done  to  the  prisoner  by   a  wrongful 
conviction — where  it  was  an  instrument  in  the 
due  administration  of  some  branch  of  the  govern- 
ment, and  where  it  was  required  by  the  policy  of 
our  criminal  system.     It  was  painful  to  consider 
that  the   innocent  were   sometimes  convicted. — ' 
The  forms  of  law,  though  wisely  framed,  often- 
failed  to  answer  the  ends  of  justice,  and  became 
subversive  of  the  first  principles   of  right ;   and 
even  if  this  were  not  so,  they  were  administer- 
ed by    the  hands  of  men  whose   common    lot 
it  was  to   err.      Thus    the    innocent  fell  vic- 
tims to   those   rules   of   law  that  were   instituted 
for  their  protection.     There  were   many  convic- 
tions, on  record,  upon  the  testimony   of  perjured 
witnesses — many  upon  the  testimony  ot  mistaken 
witnesses.     The  cases  of   identity   attested    how 
prone  men  were  to  mistake  and  how  fatal  mistakes 
had  been.  Then  there  was  another  class  of  cases, 
swelled  into  peculiar  consideration  by  a   calender 
of  gloomy  examples  almost  too  shocking  to   con~ 
template.     He  alluded  to  that  where  convictions 
had  been  founded  upon    circumstantial  evidence. 
And  there  was  still  another  class— unhappily    a 
large  class— where  the  public  sat  in  judgment  up- 
on the  accused  and  without  the  testimony  of  wit- 
nesses or  the  forms  of  trial— by  the  mere   force  of 
their  own  sentiment  fastened  the  crime  upon  him 
beyond  ail  opportunity — all  hope  of  resistance.—- 
To  deny  a  pardon— speedy   and   unconditional   in 
these  cases  would  not  only  be  an   act  of  simple 
injustice,  but  one  revolting  to  the  human  heart.— 
Again  the  pardoning  power  was   often   necessary 
to  the  due  administration  of  some   branch  of  the 
government.     He  would  put  but   one  instance.— 
Crimes    were  generally  achieved    by  concert. — 
Instances  of   solitary    crime    were    much    more 
rare.    Society  too,  had  most  to  fear  from  such  of- 


[  alt;  9       owv**wij    *»w|  

fences,  for  foresight,  skill,  and  boldness  were  in  a 
great  degree  the  results  of  combination  and  con- 
fidence in  associates.  There  was  a  pride,  too,  in 
compassing  the  object  and  mutuality  of  danger 
rendering  it  less  fearful.  The  pardoning  power 
broke  into  these  leagues  and  discovered  the  secret 
paths  of  crime  by  bestowing  immunity  upon  one 
of  the  offenders,  if  he  wcmld  expose  his  associate* 


299 


and  save  the  public  from  their  aggression.    Again 
the   pardoning  power  was  often  called  for  by  the 
policy  of  our  criminal  system.     He  supposed  pun- 
ishment had  two  objects,  Ihe  prevention  of  crime 
and   the  reformation  of  the   offender.     That  the 
latter    in   many   cases   and  the   former   in  a   few 
might  be  answered  by  the  extension  of  mercy    to 
criminals   when  a  reformation  was  complete,   he 
had  no  doubt     But  aside  from  this   consideration 
the  remark  of  the  gentleman  from   Clinton    (Mr. 
STETSON)  ought  not  be  forgotten  that   there  were 
great  inequalities  in  our  criminal  system,  and  that 
punishments  were  by  no  means  wisely  adjusted  to 
the  grade  of  offences.     He   would  add   that   the 
character  of  the  prisoners,  whether  just  fallen  or 
confirmedly  bad,  the  degree  of  temptation  and  all 
those  matters  in  short  which  went  to  aggravate  or 
modify  a  crime  were  not  and  could  not  be  regard, 
ed  by  the  law.     He  was  therefore  decidedly  in  fa- 
vor of  the  pardoning  power  but  he  had  made  this 
classification    in  order  the  better  to  determine  in 
whose  hands  this  power  should  be  lodged  and  to  this 
branch  of  the  subject  he  should  presently  allude. 
But  whoever  might  exercise  the  power  of  par- 
don it  should  be  speedy.     In  the  first  class  of 
cases  he  had  put,  a  sudden  reparation  should  be 
made  for  the  worst  injury  that  could  be  inflicted 
on  the  citizen — punishment  of  the  innocent  and 
that  ignominy  that  follows  punishment  clings  to 
the  reputation  and  too  often  blasts  it  forever.     In 
the  second  it  might  be  requisite  to  discover  and 
reach  criminals  before  they  could  elude  the  grasp 
of  justice.     It  ought  also  in  many  instances  to  be 
secret— that  would  often  be   the  case  when  the 
due  administration  of  the  government  demanded 
the  pardon — indeed  he  thought  in  most  cases 
where  the  pardon  was  upon  condition  to  discover 
joint  criminals.     Publicity  in  this  case  might  de- 
teat  the  object  of  the  pardon.     When  fellows  in 
rrime   heard  that  their  associate  was  to  be  par- 
doned they  might  fly,  knowing  how  prone  human 
nature  is  to  purchase  personal  liberty  at  the  ex- 
pense of  plighted  faith.     He  was  therefore  op- 
posed  to  the   amendment  of  his  colleague  (Mr. 
STEPHENS),  which  provided  for  the  publication 
of  notices  of  the   application  for  pardon  in  all 
cases.     So  far  as  notice  could  be  given  to  the 
public — to  courts — to  district  attornies,  he  was 
favorable  to   it.     It  would  constitute  a  great  pro- 
tection to  society  against  pardons  that  ought  not 
to  be  granted.     And  such  he  regretted  to  say  were 
too  frequent — this  was  a  necessary — an  insepara 
ble  consequence,  from  the  ex  part e  nature  of  ap 
plications  for  pardons.     But  whoever  exercisec 
the  pardoning  power  might  establish  rules  to  se 
cure  this  object  without  destroying  the  efficacy  o 
that  power  for  some  of  its  most  useful  purposes 
He  now  came  to  consider  in  whose  hands  th 
pardoning  power  should  be  vested.'     That  it  woul( 
be  best  exercised  when  granted  in  mercy,  by  thos 
-who  had  seen  most  of  the  criminal  and  could  bes 
judge  of  the  sincerity  of  his  repentance— he  had  n 
doubt  and  in  this  case  the  keepers  or  Inspectors  o 
the  prisons  were  the  best  judges.     So  in  a  case  o 
extreme  punishment  in  consequence  of  the  undu 
severity  of  the  law  the  court  could  judge  better 
but  in  the  larger  number  of  cases  the  Executiv 
was  clearly  better  qualified  to  determine  than  an 
other  officer  could  possible  be.     When  a  convi 
tion  had  been  found  upon  the  perjury  or  mistak 


witnesses  against  the  supposed  criminal,  those 
cts  which  showed  the  perjury  or  mistake,  must 
ave  been  unknown  to  the  court  or  the  convic- 
on  would  not  have  taken  place.  When  they 
ime  to  light  they  could  as  easily  be  presented  to 
ic  officer  as  another.  Whoever  might  examine 
lem  could  and  would  consult  the  minutes  of  the 
estimony  on  the  trial.  This  was  the  practice  of 
he  present  Executive,  and  had  been  the  practice 
f  those  who  went  before.  But  when  a  convic- 
on  had  been  found  under  the  influence  of  public 
xcitement  in  any  one  quarter  of  the  State,  jus- 
ce  could  only  be  sought  with  confidence  i'n  a 
uarter  not  liable  to  be  moved  by  the  fluctuating 
assions  of  the  day.  A  board  for  pardons  chosen 
rom  all  parts  of  the  State — a  court  sitting  in  the 
egipn  where  excitement  might  prevail,  would 
ot  in  his  judgment  so  eminently  meet  the  re- 
uirements  to  the  best  exercise  ot  the  pardoning 
ower  as  a  single  Executive  chosen  by  the  whole 
eople — representing  all — caring  for  all — capable 
f  speedy  and  secret  action — and  able  at  once  to 
onsult  all  those  persons  who  best  knew  the  facts 

hich  called  for  the  exercise  of  this  mighty  pow- 
r.  Where  a  pardon  was  granted  as  a  condition 
o  discover  other  offenders,  the  chief  Executive 
fficer  could  better  determine  whether  it  was  re- 
uired.  It  was  his  duty  to  execute  the  laws  and 
n  his  great  office  he  was  the  centre  of  the  whole 
ystem.  He  would  acquire  his  knowledge  of  the 
^articular  case  from  the  best  sources,  and  he 
vould  act  with  unity,  consistency,  and  in  short 
or  the  best  interests  of  the  State,  so  far  as  they 
ould  be  subserved  by  human  hands.  He  was  in 
avor  of  giving  the  power  of  commutation  as  pro- 
dded in  the  amendment.  What  circumstances 
might  call  for  its  exercise  he  could  not  foresee. 
The  power  to  pardon  was  given.  It  was  a  greater 
jower  than  that  of  commutation  and  ought  to  in- 
clude it.  la  the  various  phases  of  criminal  in- 
ention — in  the  weakness  with  which  the  strong- 
est hands  execute  laws — in  the  defects  of  laws 
hemselves,  and  above  all,  in  the  numberless  oc- 
casions that  might  call  for  the  exercise  of  the  par- 
doning power,  he  saw  powerful  reasons  against 
such  a  restriction.  He  therefore  hoped  the  com- 
mittee would  not  adopt  the  restrictions,  but  take 
he  amendment  as  it  stood. 

Mr.  TAGGART  said  that  he  also  had  an  amend- 
ment  to  offer  ;  and  he  had  hoped  that  the  gentle- 
man from  New- York  (Mr.  SHEPAHD)  would  have 
shown  the  preference  for  his  own  amendment 
over  the  original  section,  but  instead,  he  had  fa- 
vored us  with  a  dissertation  upon  the  pardoning 
power.  Mr.  T.  believed  there  were  very  few  in 
this  Convention  disposed  to  remove  this  power 
from  where  it  was  now  deputed.  He  objected  to 
the  provision  which  said  that  the  Governor  might 
"  grant  pardons  upon  such  conditions  and  with 
such  restrictions  and  limitations  as  he  may  think 
proper."  It  was  an  universal  rule,  that  we  were 
not  to  use  our  own  so  as  to  injure  our  neighbors. 
This  provision  meant  that  the  Governor  might 
impose  his  own  conditions  for  pardon ; for  in- 
stance, that  the  criminal  should  leave  the  State. 
Was  this  right  or  just  to  other  States  ?  Certainly 
not.  Hence  he  would  not  make  this  a  part  of  the 
Constitution,  so  that  it  could  not  be  changed  by 
the  Legislature  hereafter.  He  would  leave  this 
important  power  where  it  was  now— a  provision  o  j 


300 


the  statutes,  and  not  of  the  Constitution.  He 
should  offer  an  amendment,  at  the  proper  time, 
embodying  his  views  on  this  point.  There  was 
also  another  amendment  which  he  should  present. 
There  was  but  little  doubt  but  that,  in  a  few  years, 
the  last  relic  of  other  ages  in  the  criminal  code — 
Capital  Punishment— would  be  obliterated  from 
our  statute  books.  Whenever  this  should  be 
done,  he  would  provide  that  the  Legislature  might 
impose  such  restrictions  as  they  might  think  pro- 
per upon  the  pardoning  power,  in  cases  of  con- 
viction in  cases  of  murder.  As  to  the  effect  of 
conditional  pardons  in  this  State,  he  would  cite 
an  instance  or  two,  and  then  close.  He  was  in- 
formed that  the  present  Executive  had  granted 
but  two  conditional  pardons.  One  of  these  per- 
sons, after  being  again  arrested,  finally  agreed  to 
comply  with  the  terms  of  his  pardon,  and  went 
to  Canada.  In  a  fortnight  he  returned  with  a 
large  quantity  of  counterfeit  money,  which  he 
very  liberally  distributed  in  the  community,  and 
for  which  he  was  again  tried,  and  sent  to  the  state 
prison.  In  the  other  case,  there  was  good  evi- 
dence to  believe  that  the  individual  committed  a 
robbery  on  the  boat  which  was  conveying  him 
from  Sing  Sing  to  New-York,  after  his  pardon. 
He  was  now  again  in  the  state  prison.  Nei- 
ther of  the  two  was  now  at  large.  This  was 
a  fair  comment  upon  the  propriety  of  conditional 
pardons.  He  wished  gentlemen  to  take  warning 
by  them. 

Mr.  HUNT  moved  to  amend  Mr.  SHEPARD'S 
amendment  by  inserting  after  '*  as  he  may  think 
proper,"  in  the  6th  line,  the  words  "  or  as  may 
be  provided  by  law." 

The  CHAIR  said  that  this  was  out  of  order. 

Mr.  O'CONOR  referred  to  the  Governor's  pow- 
er to  pardon  under  the  Constitution  of  1777,  in 
all  cases  except  those  of  treason  and  murder ;  and 
to  the  alterations  of  the  Constitution  of  1821, — 
where  the  power  to  pardon  in  cases  of  murder 
was  given  to  him.  But  doubts  arose  under  this 
about  his  power  to  make  "  commutations"  in  cer- 
tain cases,  aside  from  reprieves  and  pardons.  For 
his  own  part,  he  thought  that  the  Governor  ought 
to  have  that  power ;  it  would  be  a  matter  of  good 
policy  to  give  the  Governor  the  privilege  to  par- 
don or  to  commute  in  some  cases  under  certain 
conditions.  He  ought  to  have  it  in  cases  where 
paupers  had  been  sent  into  this  State  from  foreign 
countries ;  and  where  he  had  committed  a  felony 
and  been  convicted  of  the  crime  it  would  be  very 
proper  perhaps  to  grant  a  pardon  upon  condition 
that  the  criminal  should  transport  himself  out  of 
the  United  States,  never  to  enter  it  again.  The 
power  of  commutation  was  certainly  narrowed  by 
the  provisions  of  the  constitution,  which  pre- 
scribed that  in  cases  of  murder  the  prisoner  was 
to  be  imprisoned  for  life  instead  of  suffering  death; 
and  it  might  be  well  to  givp  a  wider  latitude.— 
He  was  disposed  to  favor  the  amendment  of  his 
colleague  (Mr.  SHEPARD)  as  making  the  section 
distinct  in  its  meaning  and  purposes,  and  as 
adopting  a  long  established  principle  existing  in 
the  Constitution  of  South  Carolina.  He  suggest- 
ed to  Mr.  TAGGART  that  he  might  effect  his  ob- 
ject, in  preventing  the  conditional  pardon  from 
converting  our  sister  States  into  Botany  Bays,  to 
which  our  criminals  are  to  be  banished,  by  insert- 
ing after  the  amendment  of  Mr.  SHEPARD,  if  it 


should  be  adopted,  a  provision  that  the  prisoners 
pardoned  upon  condition  of  leaving  the  State, 
should  also  be  obliged  to  leave  the  United  States, 

Mr.  MORRIS  said  that  he  much  preferred  the 
original  section,  as  it  now  stood.  The  committee 
in  drawing  this  article,  where  it  was  intended  to 
preserve  the  power  as  it  was,  purposely  retained 
the  language  of  the  old  Constitution.  That  lan- 
guage being  known  and  settled,  and  although  the 
verbiage  might  be  improved,  yet  a  change  of  lan- 
guage might  unsettle  the  meaning  and  only  lead 
to  doubt  and  litigation.  AH  lawyers  knew  that 
the  change  of  a  single  word  in  a  statute  had  led  to 
excessive  litigation.  And  he  conld  appeal  to  his 
lay  friends  to  say  if  they  had  not  in  the  course  of 
their  dear  bought  experience  often  paid  large  fee* 
to  settle  the  question  whether  a  change  ot  lan- 
guage was  not  a  change  of  the  law.  In  the  new 
matter  introduced  as  to  the  commutation,  the  com- 
mittee had  endeavored  to  embody  the  precise  pro- 
vision of  the  existing  statute,  under  which,  as  a 
law  only,  a  doubt  had  arisen  whether  the  Govern- 
or had  this  power.  The  committee  thought  it 
best  to  remove  this  doubt  by  making  this  at  once 
a  positive  provision  of  the  new  Constitution.  Ai.d 
he  would,  in  reply  to  the  remarks  ol  his  le;ir;ied 
and  eloquent  friend  from  New  York  state  that  the 
committee  intended  to  give  the  executive  the 
power  to  commute  punishment  als  >  in  all  cases 
of  treason',  whilst  they  would  by  no  me-ins  al- 
low him  the  full  power  to  pardon  in  cases  of 
treason,  they  wouid  allow  him  to  commute. — 
Above  all  things  the  committee  did  rot  wish  to 
leave  any  part  of  this  to  the  bias  or  caprice  of  the 
Legislature. 

Mr.  O'CONOR  replied,  pointing  out  wherein 
the  language  of  the  amendment  was  obscure  as  to 
its  meaning.  The  whole  scope  of  the  section  was 
to  extend  the  commutation  power  of  the  Governor 
to  cases  of  treason  and  impeachment.  If  that 
was  really  intended,  it  ought  to  have  been  more 
clearly  expressed.  Mr.  O'C.  contended  also  that 
the  different  portions  of  the  section  were  incom- 
patible with  each  other.  One  part  of  it  provided 
that  the  Governor  upon  conviction  for  treason 
should  have  power  to  suspend  the  execution  of 
the  sentence  until  he  shall  report  the  case  to  the 
legislature  at  its  next  sitting,  who,  if  they  think 
proper,  may  pardon  or  grant  a  further  reprieve. 
This  in  one  part  of  it  the  Govern  or  would  have  the 
power  to  commute  sentence  of  death  to  imprison- 
ment for  life,  while  in  another  part  of  the  sec- 
tion, he  would  only  be  empowered  to  suspend  the 
execution  until  the  sitting  of  the  legislature. — 
The  obscurity  should  be  remedied  in  order  to  pre- 
vent future  controversies  in  relation  to  the  con- 
struction of  the  section.  And  if  the  Convention 
intended  to  adopt  the  idea  of  the  committee,  to 
give  the  Governor  power  to  suspend  the  execu- 
tion of  the  sentence  in  cases  of  treason,  it  would 
be  necessary  to  make  some  very  material  altera- 
tion in  the  language  of  the  section. 

Mr.  TALLM  ADGE  urged  the  importance  of  a 
close  attention  to  this  question,  and  of  the  strong- 
est powers  of  intellect  being  exercised  in  the  ad- 
justment of  its  details.  Had  the  question  occur- 
red to  gentlemen  as  to  what  was  the  condition 
and  extent  of  the  pardoning  power  and  where  it 
rested?  Did  the  legislature  possess  a  concurrent 
pardoning  power  with  the  Executive,  or  was  it 


301 


given  exclusively  to  the  Executive  ?  The  ques- 
tion should  be  fully  understood,  and  we  should 
be  very  careful  how  a  single  letter  of  the  old  Con- 
stitution was  altered  in  this  particular. 

Mr.  WORDEN  said  that  when  this  question 
was  before  the  Legislature,  the  better  opinion 
seemed  to  be  that  the  whole  pardoning  power  was 
vested  in  the  Executive.  That  where  the  Con- 
stitution confers  exclusively  upon  one  department 
the  exercise  of  a  specified  power,  it  by  implication 
at  least  restricted  its  exercise  by  any  other.  This 
case  was  decided  in  the  Senate  last  winter,  and 
the  better  opinion  of  the  body  seemed  to  be,  and 
was,  that  the  legislature  had  no  control  whatever 
over  the  pardoning  power. 

Mr.  VAN  SCHOONHOVEN  :  That  was  not  so. 

Mr.  WORDEN :  Well,  I  will  nof  say  better 
opinion — I  said  so  because  it  concurred  with  my 
opinion.  [Laughter.] 

Mr.  VAN  SCHOONHOVEN  said  the  decision 
and  opinion  was  the  other  way. 

Mr.  TALLMADGE  said  that  it  would  be  seen 
that  this  little  explanation,  and  what  had 
already  occurred,  confirmed  the  idea  he  had  sug- 
gested of  the  momentous  importance  of  gentle- 
men applying  their  minds  to  this  precise  point, 
and  laying  aside  of  all  collateral  considerations. 
Mr.  T.  urged  that  nothing  should  be  done  to  dis- 
turb long  established  construction.  The  statute 
law,  he  had  thought,  was  created  under  a  doubt 
of  the  meaning  of  the  old  Constitution,  and  in  it 
the  legislature  delegated  further  power  to  the 
Executive,  Therefore,  although  it  was  not  re- 
quired to  be  placed  here,  yet  doubt  having  been 
-expressed  as  to  the  meaning  of  the  statute,  he  was 
willing  to  have  it  remain.  What  was  the  result' 
That  all  ri^ht  belonging  to  the  people  is  inherent  in 
them,  to  delegate  it  or  to  reserve  it  as  they  choose, 
was  the  fundamental  principle  of  every  govern- 
ment. Mr.  T.  read  from  the  constitution  the  pro- 
vision that  the  Governor  "  shall  have  power,"  &c., 
in  relation  to  granting  of  pardons,  contending  that 
the  exclusive  exercise  of  this  power  was  not 
thereby  conferred  on  the  Governor.  It  was  only 
delegated  so  far  as  certain  objects  were  concern- 
ed. If  it  should  be  written  that  the  Governor 
should  have  the  power,  £c.,  the  insertion  of  that 
little  article  would  have  given  him  entirely  and 
exclusively  the  power.  But  as  it  is,  the  omission 
•jf  it  shows  that  this  power  of  pardoning  was  pos- 
sessed by  the  co-ordinate  branch  of  the  legislature. 
It  was  therefore  a  subject  for  consideration  whe- 
ther we  would  not  put  the  word  the  in  the  sec- 
tion. In  his  own  judgment  it  was  better  not  to 
do  it — leave  it  as  it  stood  in  the  present  constitu- 
tion. In  relation  to  the  power  of  commutation  of 
sentence  of  death  to  imprisonment  for  life,  there 
was  a  question  in  which  doubts  had  already  been 
expressed  as  to  construction.  His  idea  was  that 
power,  although  delegated,  yet  the  residuary  re- 
mained with  the  people  ;  and  he  had  no  doubt, 
that  leaving  the  section  as  it  was,  that  if  the  Go- 
vernor did  not  see  fit  to  go  on,  and  ii  they  thought 
it  proper  and  their  duty  to  pardon,  the  power  was 
in  his  judgment  left  with  the  people  through  the 
legislature.  Such  was  the  present  constitution, 
as  established  by  long  established  rules  of  con- 
struction, which  he  would  but  lightly  disturb — 
and  so  he  would  have  it,  with  the  slight  modifi- 
cation, so  as  to  provide  that  the  Governor  shall 


|  have  power  in  all  cases  to  commute  the  sentence 

'of death   to   imprisonment  for   life.     When   the 

amendment  was  in  order,  he  should  propose  it. 

Mr.  STETSON  should  not  have  risen  but  for 
the  remark  of  the  chairman  of  the  committee, 
j  (Mr.  MONROE,)  made  worse  by  the  gentleman 
from  Dutchess.  He  now  regarded  the  amend- 
ment of  the  gentleman  from  New-York  (Mr. 
SHEPARD)  fcs  of  some  importance,  which  he  had 
not  before,  because  under  his  reading  of  the  sec- 
tion, there  was  no  change  from  the  old  Constitu- 
tion in  regard  to  the  power  of  the  Governor  in 
cases  of  treason.  As  he  had  read  it,  the  Govern- 
or upon  conviction  of  treason  had  power  to  sus- 
pend the  sentence  until  the  case  was  reported  to 
the  next  legislature,  when  they  might  either  par- 
don or  direct  the  execution  of  the  criminal,  or 
grant  a  further  reprieve.  The  chairman  of  the 
committee  had  since,  however,  stated  it  to  be  the 
design  to  give  this  power  to  the  Governor  to  com- 
mute the  sentence  in  cases  of  impeachment.  Mr. 
S.  then  alluded  to  the  incompatibilities  pointed  put 
by  Mr.  O'CoNOR,  contending  that  the  section 
could  be  so  construed  as  to  empower  the  Govern- 
or to  pardon  and  reprieve,  as  well  as  to  commute 
the  sentence  of  death  for  treason.  By  the  intro- 
duction of  this  into  the  Constitution,  it  would 
have  established  a  new  principle,  and  destroyed 
the  exclusive  power  of  the  Legislature  in  cases 
of  treason,  and  brought  it  within  Executive  con- 
trol. Treason  was  a  political  offence  against  the 
sovereignty  of  the  State,  and  it  was  very  proper 
that  the  representatives  of  the  sovereign  power 
of  the  people  should  punish  it,  and  hence  the 
distinction  in  the  Constitution.  This  proposition 
was  to  destroy  this,  and  to  give  the  power  exclu- 
sively to  the  Governor.  To  this  Mr.  S.  expressed 
his  opposition.  He  also  deprecated  the  possi- 
bility of  a  contradictory  construction  of  the  Con- 
stitution ;  and  to  remove  all  doubts  on  this  point, 
he  proposed  to  amend  so  as  to  read  that  upon  con- 
viction for  treason  he  shall  "  only"  have  power 
to  suspend  the  execution  of  the  sentence.  The 
insertion  of  the  word  only  would  settle  the  whole 
matter. 

Mr.  VAN  SCHOONHOVEN  could  not  agree 
with  his  friend  trom  Ontario  (Mr.  WORDEN)  that 
the  question  was  ever  settled  by  the  legislature. 
So  fu  from  that  the  indications  were  all  the  other 
way.  There  was  an  application  brought  before 
the  Senate  to  interfere  in  behalt  of  the  Delaware 
prisoners,  and  he  (Mr.  V.S.)  himself  introduced  a 
resolution  into  that  body  calling  upon  the  circuit 
court  to  report  at  length  the  testimony  taken  on 
(he  occasion,  with  a  view  of  having  the  legisla- 
ture interfere  in  their  behalf.  During  the  debate, 
it  was  suggested  A  hether  the  legislature  had  the 
povve;-  to  do  this,  and  alter  further  discussion,  it 
was  deemed  proper  to  send  the  question  to  theju- 
diciaiy  committee.  -And  as  he  believed,  at  the 
close  of  the  session,  (hey  made  a  report — he  did 
recollect  precisely  what  it  was— but  thought  it 
was  an  expression  of  doubt  as  to  the  power  of  the 
legislature — leaving  the  matter  pretty  much  as  it 
stood  before.  This  matter  should  be  settled  as  to 
whet  her  the  legislature  had  any  control,  or  wheth- 
er it  was  left  exclusively  to  the  governor  or  not. 
His  own  opinion  always  had  been  that  the  legis- 
lature did  have  that  power  under  the  present  con- 
stitution. But  this  was  the  body  and  the 


302 


time  to  settle  any  doubt  that  might  arise  on  the 
subject  now.  He  was  opposed  to  giving  the 
Governor  of  the  State,  be  he  whom  he  might, 
exclusive  power  and  control  in  all  cases,  be- 
cause he  could  conceive  cases  where  his  pre- 
judices might  interfere  with  justice.  Was  it  not 
a  fact  that  many  men  who  were  convicted  and 
sent  to  prison  were  sent  there  wrongfully  ?  Not 
that  the  jury  failed  to  do  its  duty,  or  the  judge, 
but  in  the  imperfection  of  judgment  and  examin- 
ation, and  perhaps,  through  perjury.  It  was  not 
at  all  to  be  assumed  that  because  a  man  went  to 
State  prison  that  he  was  necessarily  a  felon.  He 
had  no  sort  of  doubt  in  relation  to  the  cases  al- 
luded to  by  the  gentleman  from  Delaware  that 
those  men  now  in  prison  were  wrongfully 
there,  and  he  thought  if  the  time  was  one  to 
examine  the  subject  he  could  fully  prore  that. — 
Supposing  that  hut  a  single  individual  case  occur- 
red in  the  course  of  a  year,  and  that  of  the  1500 
or  1600,  but  one  man  was  sent  wrongfully  to  pri- 
son, and  that  the  Governor  either  from  a  wrong 
view  of  the  subject,  from  the  manner  in  which 
the  case  was  presented  to  him  or  from  prejudice, 
for  he  is  as  liable  to  its  influence  as  others,  from 
political  reasons,  or  any  other,  should  refuse  to 
interfere.  Should  there  not  be  power  vested  in 
some  body  of  men  to  look  into  and  supervise  such 
a  presentment  of  facts.  It  was  contrary  to  the 
spirit  and  genius  ot  our  institutions  that  there 
should  not  be.  Where  should  this  right  then  be 
vested  except  in  the  legislature.  He  trusted  the 
convention  would  make  some  provision  on  this 
subject.  When  the  occasion  should  offer  (Mr. 
V.  S  )  avowed  his  intention  to  offer  an  amend- 
ment to  this  purport-  He  only  made  these  re- 
marks to  suggest  to  the  Convention  that  this  was 
not  by  any  means  a  settled  question,  as  he  contend- 
ed was  evinced  by  the  action  ot  the  Legislature 
list  winter. 

The  question  being  taken,  Mr.  SHEPARD'S 
amendment  was  rejected. 

Mr.  O'CONORsaid  that  the  question  was  no* 
generally  understood.  It  certainly  was  not  in  his 
quarter. 

The  CHAIR  had  no  objections  to  putting  the 
vote  again. 

Mr.  RUSSELL  strenuously  objected  to  this. 

The  CHAIR  was  obliged  to  declare  the  ques- 
tion to  be  decided. 

Mr.  TAGGART  moved  to  strike  out  the  words, 
"  He  may  grant  pardons  upon  such  conditions, 
and  with  such  restrictions  and  limitatious,  as  he 
may  think  proper." 

Mr.  RUSSELL  was  one  of  those  who  believed 
that  the  original  report  of  the  committee  was  cor- 
rect without  any  amendment  whatever.  But 
still  he  was  willing  to  admit  that  a  trifling  amend- 
ment might  render  it  more  definite  and  less  lia- 
ble to  any  possible  misconception.  He  under- 
stood that  in  the  old  constitution  the  Governor 
had  power  to  grant  pardons  generally  except  in 
cases  of  treason  and  impeachment — upon  such 
considerations,  restrictions  and  limitations  as  he 
might  think  proper.  That  he  might  commute 
the  punishment  of  death  in  any  case  to  imprison- 
ment for  life.  And  lastly  upon  cases  of  treason 
he  might  suspend  sentence  until  the  action  of  the 
legislature  was  had  thereupon. 


Mr.  STETSON :  Did  the  gentleman  under- 
stand that  from  the  old  Constitution  ? 

Mr.  RUSSELL :  I  understand  that  the  old 
Constitution  gives  the  Governor  the  power  oi 
suspending  the  sentence. 

Mr.  STETSON  :     But  not  of  commutation. 

Mr.  RUSSELL  said  only  to  suspend  the  sen- 
tence until  the  Legislature  should  act  upon  it. 
This,  to  his  mind,  was  the  best  exposition  of  the 
pardoning  power  that  could  be  given.  The  Go- 
vernor had  unlimited  power,  except  in  cases  of 
treason  and  impeachment,  and  then  that  he  might 
commute  the  punishment  in  any  case,  including 
treason  and  impeachment,  to  imprisonment  for 
life.  And  who  was  not  willing  that  he  should 
have  that  power  ? 

Mr.  TILDEN  would  like  to  ask  his  friend  from 
St.  Lawrence  if  it  was  the  intent  of  this  section 
to  give  to  the  Governor  the  power  to  commute 
the  sentence  in  cases  of  treason  and  impeachment, 
what  then  was  the  meaning  of  the  subsequent, 
section,  which  said  that  upon  convictions  for  trea- 
son, he  should  have  the  power  to  suspend  the 
sentence  until  the  case  should  be  reported  to  the 
Legislature,  when  they  might  either  pardon,  di- 
rect the  Executive,  or  grant  a  further  reprieve  I 
What  was  the  object  of  giving  the  Governor  the 
power  to  commute,  and  in  another  place  to  sus- 
pend the  sentence  until  the  Legislature  should 
assemble  ? 

Mr.  RUSSELL  thought  the  answer  was  obvi- 
ous. He  might,  rather  than  commute,  think  bet- 
ter to  give  it  to  the  legislature. 

Mr.  STETSON  :  If  he  can  commute,  why  not 
pardon  ?  The  effect  of  the  section  would  be  to 
change  the  present  Constitution  entirely. 

Mr.  RUSSELL  said  the  gentleman  had  not 
heard  him  through.  He  proposed  to  have  it  read 
in  effect,  that  the  Governor  might  grant  pardons* 
except  in  cases  of  treason,  &c.,  in  which  case  he 
might  commute  the  sentence. 

The  amendment  of  Mr.  TAGGART  was  then 
rejected. 

Mr.  TILDEN  moved  a  reconsideration  of  the 
vote  upon  Mr.  SHEPARD'S  amendment. 

Mr.  WARD  suggested  that  the  motion  was  not 
in  order  now. 

Some  conservation  ensued  between  the  CHAIR 
and  Messrs.  TILDEN  and  WARD  on  this  point, 
when 

Mr.  TILDEN  continued.  We  were  in  this 
predicament  in  the  arrangement  of  an  important 
clause  in  the  Constitution.  We  find  that  gentle- 
men of  acknowledged  legal  attainments  and  ex- 
perience are  unable  to  agree  as  to  the  legal  effect 
of  the  clause  we  propose  to  adopt.  And  yet  gen- 
tlemen tell  us  it  is  not  of  the  slightest  .conse- 
quence, that  it  was  a  mere  matter  of  verbal 
change.  He  confessed  he  did  not  regard  any  part 
of  the  Constitution  we  were  about  to  adopt  as  un- 
important. And  when  the  fact  was  presented 
that  gentlemen  of  the  Convention  did  not  agree 
as  to  the  effect  of  a  proposition,  he  thought  it  in- 
cumbent on  the  Convention  to  consider  and  adopt 
something  that  would  be  intelligible.  He  would 
not  here  give  the  slightest  occasion  for  difficulty  in 
construction  hereafter;  and  as  the  section  was  re- 
ported by  the  committee,  it  did  give  rise  to  seri- 
ous apprehension  on  the  subject.  In  this  debate 
we  found  his  learned  colleague  (Mr.  O'CONOR) 


303 


putting  on  this  clause  in  relation  to  the  commu- 
tation of  sentences,  a  construction  which  the 
chairman  of  the  committee  (Mr.  MORRIS)  wholly 
repudiated.  In  this  state  of  things  was  it  pro- 
posed to  vote  down  all  amendments  and  adopt  at 
once  a  section  so  unintelligible!  Mr.  T.  proceed- 
ed to  show  the  difference  of  opinion  as  to  the 
construction  of  this  section,  as  evinced  by  the 
remarks  of  the  gentleman  from  St.  Lawrence  and 
others. 

Mr.  RUSSELL  had  said  that  to  prevent  any 
doubt,  he  had  proposed  to  give  the  power  to  the 
Governor  to  commute  the  sentence  in  any  case. 

Mr.  TILDEN  said  that  then  the  question  rose 
to  the  dignity  of  a  question  of  principle — shall  we 
confer  upon  the  Governor  the  power  of  commuta- 
tion' in  cases  of  treason  and  imprisonment. 

The  CHAIRMAN  asked  the  gentleman  to  sus- 
pend his  remarks,  until  he  enquired  how  he 
voted. 

Mr.  TILDEN  did  not  vote  at  all. 

The  CHAIR— Then  the  gentleman  is  under- 
stood as  having  voted  in  the  affirmative — the  mi- 
nority— and  it  was  not  competent  for  him  to  move 
a  reconsideration.  Such  was  the  strict  parlia- 
mentary rule. 

Mr.  CAMBRELING  briefly  suggested  that  this 
question  of  reconsideration  should  be  here  ar- 
rested and  be  left  to  the  decision  of  the  conven- 
tion, when  we  came  out  of  the  committee  of  the 
whole.  There  every  question  would  be  reconsi- 
dered. To  allow  of  the  contrary  course,  would 
only  lead  to  endless  debate,  with  no  useful  result, 

After  some  further  conversation  on   this  point. 

Mr.  TILDEN  resumed.  The  amendment  pro- 
posed by  his  colleague  (Mr.  SHEPARD)  followed 
the  principle  of  the  old  constitution  and  did  not 
give  the  Governor  the  power  to  commute  the 
sentence  in  cases  of  treason  and  impeachment. — 
And  in  that  respect  it  differs  wisely  and  safely 
from  the  report  of  the  committee.  It  was  a  simple 
intelligent  provision  which  all  might  understand 
and  which  might  be  safely  inserted  in  the  Constitu- 
tion. It  provided  that  the  Governor  should  have 
power  to  grant  reprieves,  commutation  and  par- 
dons after  conviction,  except  in  cases  of  treason 
and  impeachment,  in  such  manner,  at  such  times 
and  under  such  restrictions  as  he  may  think  pro- 
per. His  was  a  proposition  such  as  ought  to  be 
in  the  Constitution,  and  was  in  explicit  and  in- 
telligible in  its  language.  Mr.  T.  said  he  should 
not  have  made  the  motion  to  reconsider  had  not 
the  gentleman  who  summoned  him  informed  him 
that  when  the  vote  was  taken,  they  did  not  under- 
stand the  question  to  be  on  that  amendment,  but 
on  some  amendment  to  it. 

Mr.  RUSSELL  said  that  as  a  general  rule  no 
reconsideration  should  be  had  for  slight  cause  as 
the  example  was  a  bad  one.  Even  if  the  amend- 
ment of  the  gentleman  from  New- York  was  re- 
jected, it  did  not  preclude  further  propositions  to 
amend.  Mr.  R.  sustained  the  report  of  the  com- 
mittee, which  pressed  the  matter  so  far  as  practi- 
cable in  the  language  arid  spirit  of  the  old  con- 
stitution. 

Mr.  STETSON  said  that  the  combined  effect  of 
the  old  and  new  language  was  what  was  imper- 
fect and  complained  of. 

Mr.  RUSSELL  would  admit  that  the  new  lan- 
guage was  susceptible  of  criticism,  but  he  be- 


lieved any  fair  construction  of  it  would  be  the 
same  as  he  gave  it.  He  thought  it  might  be 
amended  so  as  to  provide  that  all  pardons  or  com- 
mutation without  exception,  might  be  granted  as 
the  Governor  thought  proper.  He  was  one  of 
those  who  did  not  believe  in  the  taking  of  life  by 
the  hands  of  the  law.  Yet  still  as  a  majority  of 
the  people  might  not  agree  with  him,  he  would 
give  the  Governor  power  to  commute  the  punish- 
ment to  imprisonment  for  life,  or  if  a  majority 
of  the  Convention  should  say  so,  for  a  term  of 
years.  This  would  make  the  whole  article  clear 
and  explicit.  It  would  then  provide  that  the 
Governor  should  have  power  to  grant  pardons  and 
reprieves  with  such  limitations  and  restrictions 
as  he  might  think  proper,  or  commute  sentence 
of  death  to  imprisonment  for  life  in  any  case 
whatever.  And  upon  conviction  for  treason  he 
should  have  power  to  suspend  the  execution  of 
the  sentence  until  the  case  was  reported  to  the 
legislature  at  the  next  meeting,  when  they  may 
either  pardon,  grant  a  further  reprieve  or  direct 
the  execution  of  the  sentence.  This  would  be 
clearly  explicit  and  definite.  The  report  of  the 
committee  in  other  respects  was  what  it  should  be, 
and  with  this  trifling  amendment  to  make  it  more 
distinct  and  definite,  it  seemed  to  him  should 
meet  the  approbation'  of  every  member.  He  was 
therefore  opposed  to  the  motion  for  reconsidera- 
tion, and  hoped  it  would  be  voted  down. 

The  question  being  taken,  the  committee  re- 
fused to  reconsider. 

Mr.  DANA  said  that  he  wanted  to  prohibit  the 
governor  expressly  from  ever  commuting  a  sen. 
tence  for  treason  or  impeachment.  He  moved  to 
amend  so  as  in  the  6th  line  to  insert  after  word 
"proper,"  the  words  "  lor  all  cases  except  im- 
peachment  and  treason. 

Mr.  TOWNSEND  said  the  word  "  only,"  as  sug- 
gested by  Mr.  STETSON,  inserted  at  the  end  of  that 
line  would  answer  every  purpose:  thus,  "upon 
convictions  for  treason,  he  shall  only  have  power 
to  suspend  the  sentence." 

Mr.  STETSON  said  that  the  difficulty  in  this 
case  was  that  gentlemen  combined  a  question  of 
verbiage  with  a  question  of  principle;  they  were 
acting  at  cross  purposes  ;  they  wanted  to  effect  the 
same  end,  but  they  took  widely  different  means  to 
get  at  it.  The  question  was,  who  shall  exercise 
this  power  to  pardon  for  treason  ?  the  Governor 
or  the  Legislature?  He  wanted  the  Legislature  only 
to  do  it.  The  other  gentlemen  were  producing 
the  double  result  of  doing  what  he  did  want,  and 
of  doing  something  else  worse  which  he  did  not 
want. 

Mr  PENNIMAN  did  not  understand  the  sen- 
tence in  the  report  as  Mr.  MORRIS  did,  viz:  that 
the  Governor  should  have  power  to  commute  for 
treason. 

Mr.  STETSON  wanted  to  prevent  any  combined 
purpose  ;  on  the  word  "  only"  all  could  agree, 
and  it  expressed  all  that  they  wanted. 

The  amendment  was  read. 

Mr.  WARD  said  that  it  appeared  to  be  the  same 
that  had  previously  been  voted  down. 

Mr.  TILDEN  said  it  was  not. 

Mr.  WARD  :  In  what  particular  is  it  not  ? 

Mr.  TILDEN  :  The  word  '•  commutation"  is 
left  out. 

The  amendment  was  then  put  and  lost. 


304 


Mr.  RUSSELL  moved  to  amend  that  the  Gov- 
ernor in  cases  of  treason,  and  all  cases,  &c., 
should  have  power  to  commute  the  sentence  of 
death  to  imprisonment  for  life.  Thus : — 

Strike  out,  "  He  may  commute  sentence  of  death  to  im- 
prison in  a  state  prisonlor  lii'e.  He  may  grant  pardons  up- 
ou  such  conditions,  and  with  such  restrictions  and  limita- 
tions as  he  may  think  proper" — and  insert— "He  may  grant 
such  pardons  upon  such  conditions,  and  with  such  restric- 
tions and  limitations  as  he  may  think  proper  ^  and  he  may 
commute  sentence  of  death,  in  any  case,  to  imprisonment 
in  a  state  prison  for  iife." 

Lost  35  to  52. 

Mr.  STETSON  moved  to  insert  the  word  'only' 
at  the  end  of  the  6th  line,  as  above  stated. 

Mr.  STOW  hoped  this  amendwent  would  pre- 
vail. The  Governor  and  his  agents  may  be  guilty 
of  treason,  and  this  power  should  be  vested  with 
the  Legislature. 

Mr.  WORDEN  also  hoped  the  amendment 
would  be  agreed  to.  It  was  a  very  proper  one  ; 
both  the  Governor  and  Lieutenant  Governor  and 
their  emissaries  may  be  guilty  of  treason. 

Mr.  STETSON :  That's  the  very  reason  why  I 
want  it  in. 

It  was  adopted. 

Mr.  TAGGART  moved  to  amend  so  as  to  for- 
bid the  Governor  to  grant  pardons  on  conditions 
that  the  convict  should  leave  this  State  or  the 
United  States. 

Mr.  STOW  hoped  this  would  not  prevail ;  for 
whilst  we  were  desirous  to  protect  other  States 
from  rogues,  we  must  not  therefore  fail  to  protect 
our  own.  He  wished  rogues  pardoned  on  condi- 
tion that  they  left  the  country  never  to  return. 

Mr.  TAGGART  said  it  was  only  an  act  of  jus- 
tice to  other  States  that  he  wished — as  a  duty  we 
owed;  if  we  did  this,  other  States  will  act  justly 
towards  us. 
It  was  lost. 

Mr.  TAGGART  then  moved  to  amend  so  that 
the  Legislature  miiiht  restrain,  restrict,  or  limit 
the  paidoning  power  in  cases  of  conviction  for 
murder  Lust. 

Mr.  STOW  moved  to   amend,   by  adding    alter 
"  pardon"  in  the  9fh  line,  u  or  commute  the  sen- 
tence," so  that  the  Legislature  might  commute  as 
well  as  pardon  in  cases  ol  treason. 
This  was  adopted. 

Mr.  TALLMADGE  moved  to  strike  (  ut  all  af 

ter  the  word  "granted  "  ia  the  12th  line.     It  was  a 

mere   tautology.      To   suike  out — "  Stating    the 

name  of  the  convict,  the  crime  of  which  he  was 

convicted,  the  sentence  and  its  date,  and  the  date 

of  the  commutation,  pardon  or  reprive." 

The  motion  was  lost. 

Mr.  SHEPARD  said  that  there  was  now,  as  the 

section    stood,  no  limitation  uf  time  as  to  when 

the  Governor  should  repoit  to  the  Legislature. 

xMr.  MURPHY— That  can  be  added  afterwards. 

Mr.  RUSSELL  hoped  lhat  ihe  Clerk  would  read 

the  section  as   it  stood.     He  was   certain  nobody 

there  understood  it. 

The  CHAIR  read  it. 

.  Mr.  RUSSELL— I  see  the  word  "granted,"  in 
the  12th  line,  is  out. 

The  CHAIR— It  was  left  out  by  mistake. 

Mr.    WORDEN— How    does    it   read   now  ?— 

It  was  read  again. 

Mr.  WORDEN  wished  some    time    specified 

when  the  Governor  must  repoit. 


Mr.  SHEPARD  also  desired  this  inserted. 
Mr.  TALLMADGE— The  word  ''annually"  co- 
vers all  that  is  wanted. 
It  was  lost. 

The  section  was  then  set  aside. 
The  6th  section  was  then  read  as  follows  : 
j  6.  In  case  of  the  impeachment  of  the  Governor,  or  his 
removal  from  office,  death,  inability  from  mental  or  phy- 
sical disease,  resignation  or  absence  from  the  State,  the 
>ower  and  duties  shall  devolve  upon  the  Lieut.  Governor 
x>r  the  residue  of  the  term,  or  until  the  Governor  absent 
or  impeached  shall  return  or  the  disability  shall  cease  — 
But  when  the  Governor  shall,  with  the  consent  of  the  le- 
gislature, be  out  of  the  State  in  time  of  war,  at  the  head  of 
a  military  force  thereof,  he  shall  continue  Commander-in- 
Chief  of  all  the  military  force  of  the  State. 

Mr.  TAGGART  moved  to  insert  "  disability" 
instead  of  "  inability."  Lnst. 

Mr.  T.  moved  farther  to  amend  by  inserting 
after  the  word  "  disease,"  the  words  "  to  dis- 
charge the  duties  of  his  office." 

Mr.  JORDAN  said  that  by  and  by  he  should 
move  to  strike  out  the  words  "  from  mental  or 
physical  disease,"  and  he  would  give  a  reason, 
therefor. 

Mr.  TAGGART' S  second  amendment  was  put 
and  lost. 

Mr.  JORDAN  now  made  the  above  motion. — 
He  .said  the  Governor  might  be  unable  to  dis- 
charge the  duties  of  his  office  from  other  causes 
than  mental  and  physical  disease.  He  might  be 
convicted  of  a  crime  ;  he  might  be  shut  up  in  the 
State  Prison,  and  thus  be  incapacitated  for  per- 
forming the  duties  of  the  office.  The  indictment 
for  a  crime,  or  the  imprisonment  for  a  crime, 
might  precede  impeachment,  and  therefore  those 
words  are  unnecessary,  they  are  restrictive  and 
restrictive  only. 

Mr.  BROWN  said  the  new  matter,  which  the 
committee  had  introduced  into  the  section  under 
consideration  was  exposed  in  his  judgment,  to  a 
more  serious  objection  than  that  named  by  tne 
gentleman  from  Columbia,  (Mr.  JORDAN.)  One 
of  the  contingencies  upon  the  occurrence  ol  which 
the  Lieutenani-Governor  is  o  exercise  the  execu- 
live  duties,  is  the  inability  of  the  Governor  "  from 
mental  or  physic.il  incapacity."  This  language  is 
certainly  liable  to  great  uncertainty,  acd  may  lead 
o  contention  and  controversy.  By  mental  incapa- 
city he  supposed  the  committee  meant  lunacy, 
insanity,  or  such  infirmity  of  mind  as  would  ren- 
def  the'mcumbant  incapable  of  governing  hin.seli, 
and  therefore  unfit  to  "execute  a  trust;  but  what 
was  meant  by  physical  incapacity  he  was  at  some 
loss  to  determine.  So  long  as  the  chief  magis. 
trate  had  sufficient  mind  to  discharge  his  public 
duties  it  was  scarcely  possible  to  imagine  such  an 
entire  prostration  of  physical  ability  as  would 
justify  or  demand  ihe  interposition  of  another 
functionary.  The  contingencies  which  must  hap. 
pen  under  the  present  Constitution  to  pl.tce  the 
executive  power  in  the  hands  of  the  Lieutenant- 
Governor  are  impeachment,  removal  from  office, 
death,  resignation,  or  absence  from  the  state,  of 
the  Governor.  These  facts,  if  they  do  exist,  are 
susceptible  of  clear  and  unequivocal  proof,  and 
can  hardly  become  thesuiject  of  any  doubt  j  but 
v\hat  shall  amount  to  physical  or  mental  incapa- 
city, or  what  shall  be  the  evidence  of  disa. 
billty  arising  from  these  causes  is  quite  an- 
other question.  Who  shall  pay  that  the  Go- 
vernor has  lost  his  mental  faculties?  How 


305 


shall  the  degree  of  incapacity  be  ascertained,  and 
to  what  effect  must  it  prevail  in  order  to  amount 
to  the  disability  contemplated  by  the  words  of 
the  section  ?  Shall  it  be  ascertained  by  a  com- 
mission de  lunatico  inquircndo.,  or  by  a  vote  of 
the  Senate  and  Assembly  ?  No  more  controvert- 
ed question  can  occupy  the  time  of  a  court  of  jus- 
tice than  this  same  question  of  incapacity.  You 
cannot  deprive  a  man  of  the  control  of  his  person 
or  property,  nor  take  away  from  him  the  power 
to  execute  a  private  trust,  without  establishing 
his  incapacity  by  due  process  of  law  and  the 
judgment  of  a  competent  tribunal.  Will  you 
suspend  the  execution  of  a  great  public  trust,  in 
the  hands  of  the  Chief  Magistrate  of  the  State, 
without  some  judgment  or  resolution  founded  up- 
on evidence  of  his  incapacity.  The  Convention, 
he  trusted,  would  pause  before  they  adopted  these 
words  into  the  fundamental  law.  He  would  re- 
mind the  committee  of  a  historical  incident  which 
might  serve  to  illustrate  the  danger  of  adopting 
such  uncertain  language.  In  October,  1778,  the 
King  of  Great  Britain  was  taken  suddenly  ill, 
and  betrayed  symptoms  of  that  most  terrible  of 
all  human  maladies,  insanity.  Parliament  as- 
sembled in  the  month  of  November;  and  the  phy- 
sicians in  attendance  were  examined  before  the 
privy  council,  and  also  before  committees  of  both 
nouses.  It  being  ascertained  from  these  exami- 
nations, that  a  temporary  incapacity  existed  from 
the  insanity  of  the  King,  another  committee 
was  appointed  to  examine  into  the  journals  of 
Parliament  for  precedents  in  similar  analagous 
cases.  No  precedents  could  be  anywhere  found, 
and  it  became  apparent  that  a  new  and  dangerous 
crisis  had  occurred  in  the  suspension  of  the  Ex- 
ecutive authority,  for  which  the  Constitution  had 
emitted  to  provide  an  adequate  remedy.  When 
the  regular  exercise  of  the  powers  of  government 
was  from  any  cause  suspended,  to  whom  belonged 
the  right  of  providing  a  remedy  for  the  existing 
defect?  Mr.  Fox  for  once  forgot  the  principles 
to  which  his  life  had  been  devoted,  and  took  the 
ground  that  there  was  an  inherent  right  in  the 
Prince  of  Wales,  the  heir  apparent  to  the  Crown, 
to  assume  the  reins  of  government.  Mr.  Pitt,  on 
the  other  hand,  denied  this,  and  successfully  con- 
tended that  these  ideas  of  divine  right  and  inde- 
leasable  authority  of  Princes  had  justly  sunk  into 
contempt,  and  almost  into  oblivion.  That  the 
people  were  the  only  true  source  of  power,  and 
to  them,  through  their  representatives,  belonged 
the  right  to  supply  the  absence  of  executive  au- 
thority. Parliament  thereupon  proceeded  to 
adopt  two  resolutions.  1st  That  the  executive 
authority  was,  for  the  present,  interrupted.  2d 
That  it  belonged  to  Parliament  to  provide  for  its 
exercise,  during  the  existing  contingency  ;  and 
to  determine  on  the  means  of  giving  the  execu- 
tive assent  to  such  bills  as  Parliament  might  pass 
during  the  illness  and  insanity  of  the  King.  He 
(Mr.  B.)  adverted  to  this  analagous  case  for  the 
purpose  of  showing  the  uncertain,  if  not  danger  - 
'ous  tendency  of  the  words  which  the  committee 
proposed  to  introduce.  He  would  greatly  prefer 
to  leave  the  instrument  as  it  was.  In  a  govern- 
ment like  ours,  founded  upon  the  popular  will 
and  upheld  by  the  popular  love  and  respect,  it 
possessed  a  vitality  which  would  carry  it  safely 
through  any  emergency  arising  out  of  temporary 


executive  incapacity.  He  therefore  submitted 
that  the  words  to  which  he  had  excepted  should 
either  be  stricken  out,  and  the  Constitution,  in 
that  respect,  left  as  it  had  been  for  the  last  25 
years,  or  that  provision  should  be  made  for  ascer 
taining  the  fact  of  inability. 

Mr.  TAYLOR  said  the  words  "inability  to  dig. 
charge  the  duties  of  said  office"  would  be  much 
better.  If  the  amendment  of  the  gentleman  from 
Orange  vMr.  BROWN)  prevailed,  then  there  would 
be  no  provision  made  for  I  he  Governor  becoming 
insane.  Now  his  words  were  the  best;  they  were 
contained  in  the  Constitution  of  the  U.  S.:  and 
many  instances  must  arise,  when  under  various 
circumstances,  the  duties  of  ihe  Governor  would 
have  to  devolve  by  insanity  on  the  Lt.  Governor. 
Sometimes  there  would  be  palpable  cases  in 
which  there  could  be  no  doubt,  and  in  others  the 
Legislature  might  decide.  He  would  have  this 
section  conform  to  the  phraseology  of  tne  Con- 
stitution of  the  U.  S  ,  the  language  of  which  he 
had  sent  up  to  the  Chair. 

Mr  VVORDEN:— How  ascertain  that  inability 
to  act?  Who  is  to  decide? 

Mr.  W.  TAYLOR:— A  palpable  case  would 
require  no  formal  adjudication. 

Mr.  WORDEN:— Suppose  it  is  not  a  palpable 
case  ? 

Mr.  W.  TAYLOR:— Then  he  would  continue 
in  the  discharge  of  his  duty.  The  Legislature 
would  nrjke  provision  however  for  such  cases. 

Mr.  WORDEN :— But  there  might  be  a  contro- 
versy between  the  Governor  and  Lieut.  Cover, 
nor,  and  the  latter  m'ght  undertake  in  high  party 
times  to  declare  the  Governor  insane  for  the  pur- 
pose of  displacing  him. 

Mr.  HARRISON:— This  can  all  be  remedied, 
by  inserting  after  the  word  "death"  the  words 
"inability  to  serve." 

Mr  SIMMONS  thought  that  the  word  "ina- 
bility" was  sufficient,  but  he  was  willing  to  agree 
to  the  words  "inability  to  serve."  He  should  be 
sorry  to  have  ihe  words  "from  mental  or  physic- 
al disease"  stricken  out.  They  would  remember 
the  case  of  a  Governor  of  Maryland  who  was  in- 
sane, but  recently  ;  tfeen  there  was  the  Governor 
or  President  of  Mexico  [Santa  Anna]  who,  when 
he  was  at  San  Jaciuto  could  not  perform  his  duties 
for  some  time  at  least.  So  a  Governor  may  be  inca- 
pacitated from  being  in  durance  vile  from  an  enemy 
in  this  very  state.  They  ought  to  provide  tor  all  pos- 
sible cases  of  inability;  as  to  asceitaining  the  fact 
of  the  Governor's  inability  that  could  be  provided 
for  by  law.  The  U.  S.  gave  Congress  the 
power  of  pioviding  for  the  removal  of  the  Pres- 
ident, and  to  decide  on  his  disability  to  serve. 

The  question  was  here  taken  on  striking  out 
"  from  mental  or  physical  disease,"  (as  moved  by 
Mr.  JORDAN)  and  carried. 

Mr.  KENNEDY  proposed  to  strike  out  "  or  im- 
peached," as  unnecessary — the  word  inability  in- 
cluding it. 

Mr.  JONES  suggested  that  those  words  should 
be  retained,  and  the  words  "  or  be  acquitted," 
added. 

The  committee  refused  to  strike  out  as  moved 
by  Mr.  KENNEDY. 

Mr.  W.  TAYLOR  moved  to  insert  after  "  ina. 
bility,"  in  the  third  line,  the  words  of  the  Consti. 


306 


tution  of  the  United   Slates,    "  to  discharge  the 
powers  and  duties  of  his  office." 

Mr.  WORDEN  said  that  he  would  vote  for  that 
if  the  gentleman  would  add  also  the  provision  ot 
the  United  States  Constitution  for  ascertaining  the 
disability — making  it  the  duty  of  the  Legislature 
to  provide  a  mode.  Otherwise,  there  would  be  no 
legal  body  competent  to  say  where  the  disability 
arose.  Provide  some  legal  mode  to  determine 
where  this  inability  actually  exists.  The  Consti- 
tution ot  the  United  States  requires  Congress  to 
inquire  into  and  determine  this. 

Mr.  W.  TAYLOR  replied  that  the  United  States 
Constitution  provided  that  Congress  should  pre- 
scribe the  mode  ot  filling  the  place  of  Piesident, 
not  for  ascertaining  the  tact  of  inability.  We  had 
here  already  a  provision  for  filling  the  place  of 
Governor. 

Mr.  RUGGLES  would  suggest  these  words:  — 
"  Or  inability  to  discharge  the  powers  and  duties 
of  his  office,  to  be  declared  by  joint  resolution  of 
the  two  Houses  of  the  Legislature."  He  did  not 
know  that  this  was  the  best  way,  but  it  was  the 
only  mode  that  then  occurred  to  him  in  which 
this  difficulty  could  be  met. 

Mr.  W.  TAYLOR  agreed  to  accept  this. 
Mr.  NICHOLAS  said  that  this  amendment  was 
not  adapted   to  the  object  in  view.     A  Governor, 
in  a  fit  of  mental  alienation  in  the  spring  or  sum 
mer,  might,  in    a  very  philanthropic  mood,    par 
don   all  the   convicts  in    the  prisons  ;  (laughter) 
and  if  his  insanity  is  to  be  determined  oniy  by  the 
Legislature,  he  might,  when  bereft  of  his  reason 
do  this  and  much    more  mischief,  during  the  six 
months  which  would  intervene  before  the  meeting 
of   the   Legislature.     If  the  mode  ot  ascertaining 
and  defining  this  disability  is  not  specified  in  the 
Constitution,  the   power  and  duty  of  course  rests 
with  the  Legislature.     It   may  and  should  be  de-    give 
termined  by  statute.     The  words  to  provide  for  a 
Governor  being  crazy  must  be  retained,  or  there  i 
no  telling  what  may  happen. 

Mr.  STOW  suggested  this  clause  : 

"  The  legislature  may  declare  the  inability  of  the  Go 
vernor,  or  of  the  person  administering  the  duties  of  th 
office  of  Governor,  by  a  vote  of  four-fifths  of  all  the  mem 
bers  elected  to  each  house;  and  for  this  purpose  the  Chie 
Justice  of  the  Supreme  Court  may  convene  the  legisla 
ture." 

Mr.  W.  TAYLOR  would  not,  upon  reflection 
accept  Mr.  RUGGLES'  modification. 

Mr.    SIMMONS   moved   to   add    to    Mr.  TAY 
LOR'S   amendment   these   words,  (which  he  rea( 
from  his  book,)  the  provision  of  the  United  State 
b-    Constitution: 

"  And  the  legislature  may  by  law  provide  for  the  case 
the  removal,  death,  resignation,  or  inability  of  the  Gove 
nor  and  Lieut.   Governor,  and  of  each  of  them,  declarir 
what  officer  shall  act  in  both  cases,  or  in  either  of  them 
Mr.  S.  would  write  it  down  from  the  book 
Mr.  W.  TAYLOR  :    That  is  provided  for  in  th 
very  next  section  of  the  report. 

Mr.  MURPHY  (while  Mr.  S.  was  penning  his 
amendment)  moved  to  strike  out — "  the  Governor 
absent  or  impeached,  shall  retuin,  or"— so  that 
the  clause  should  read,  "  for  the  residue  of  the 
term,  or  until  the  disability  shall  cease." 

This  motion  was  agreed  to,  whilst  Mr.  TAY- 
LOR'S still  remained  undecided. 

Mr.  SIMMONS'  amendment  now  came  up— 
f'  and  the  legislature  may  provide,"  &c. 


Mr.  JONES  remarked  that  the  case  of  the 
Lieut.  Governor  was  provided  for  in  the  Consti- 
tution— the  President  of  the  Senate  taking  his 
place.  The  Constitution  of  the  United  States  had 
no  such  provision  in  it,  and  therefore  it  required 
Congress  to  provide  for  it.  The  next  section  con- 
tains what  the  gentleman  (Mr.  SIMMONS)  desired 
to  insert. 

Mr.   STETSON  wished  to  call  their  attention 
what  he  denounced  as  the  serious,  important,  ra- 
dical change  suggested  by  Mr.  SIMMONS.     It  was 
quivalent  to  the  power  of  impeachment  vested 
xclusively  in  the  legislature.     They  might  drive 
ut  the  Governor  for  causes  less  than  the  cause  of 
mpeachment.     The  legislature   (or  members  of 
;)  could  be  removed  for  less  cause  than  a  Gover- 
or  could  be  removed  for.     And  this  was  saying 
lat  the  legislature  at  any  time,  in  their  caprice, 
may  declare  the  office  vacant  from  disability,  at 
heir  caprice,  when  no  disability  may  exist,  and 
when  they  have  not  the  power  to  supply  the  va- 
ancy. 

Mr.  SIMMONS  said  this  matter  was  not  in  the 
eport;andif  this  word  inability  was  retained, 
we  must  require  the  legislature  to  provide  by 
aw,  not  as  the  case  might  arise,  but  prospective- 
y,  for  ascertaining  this  inability.  The  word 
hould  be  in,  but  not  unless  accompanied  with 
his  provision.  It  is  not  provided  for  in  the  next 
ection,  nor  at  all ;  it  is  not  in  this  Constitution, 
t  is  a  casus  omissus. 

Mr.  STETSON  said  that  the  difficulty  was  that 
the  proposition  would  give  the  legislature  the 
dreadful  and  dangerous  power,  not  to  supply  a 
vacancy,  but  to  make  one,  to  create  a  vacancy ,and 
not  provide  they  should  supply  it. 

Mr.  SIMMONS  said  that  the  gentleman  misap- 
Di-ehended  entirely  his  amendment.  It  did  not 
rive  the  legislature  power  to  act  upon  cases  mere- 
ly as  they  arose — but  to  provide  for  determining 
such  questions  in  future. 

Mr.  TOWNSEND:  Why  not  decide  such 
questions,  as  others  were — by  a  commission  of 
lunacy  ?  Why  not  leave  it  to  be  determined  by 
the  general  law,  as  now  ! 

Mr.  SIMMONS :  Because  it  would  be  very  in- 
convenient to  throw  all  things  that  differed  as  far 
as  heaven  and  earth,  and  which  are  as  diverse  as 
the  four  Beasts  in  Daniel,  into  one  and  the  same 
mill.  [Much  laughter.]  We  want  ear  marks 
to  things  in  this  country  to  distinguish  one 
from  another,  and  in  matters  of  government 
particularly,  to  distinguish  the  individualties  here 
from  the  "  transcendentalisms  of  Germany. — 
And  at  any  rate  you  cannot  leave  this  out  of  the 
great  system  of  nature. 

The  amendment  of  Mr.  SIMMONS  was  then  put 
and  lost. 

Mr.  W.  TAYLOR'S  amendment  was  then  put 
and  agreed  to. 

Mr.  JORDAN  then  moved  in  line  nine,tostnk< 
out  "all  the,"  and  in  lines  10  to  strike  out  •«  ot  the 
State;"  s<>  as  to  read  thus: 

«  But  when  the  Governor  shall,  with  the  consent  of  the 
legislature,  be  out  of  the  state  in  time  of  war,  at  the  head 
of  a  military  force,  he  shall  continue  commander-m-ch 
of  such  military  force  " 

Mr.  JORDAN  explained  that  in  the  absence  of 
the  Governor,  it  might  be  necessary  that  the  per*, 
son  filling  his  place  should  have  command  of  the 


307 


military  force  left.  The  Governor  might  be  away 
with  a  force  in  Louisiana  or  elsewheiej  and  un 
less  this  was  provided  for,  he  would  still  be  the 
only  commander  of  the  forces  left  behind  j  he 
could  not  really  act  as  comm.mder  of  these,  when 
he  might  be  3000  miles  away.  He  might  be  ai 
the  head  of  a  force  in  the  service  of  the  United 
States.  He  did  not  know  that  there  was  anything 
in  this;  but  he  thought  it  ought  to  be  looked  to. 

Mr.  WARD  said  the  gentleman  would  not  at- 
tain his  object  by  sinking  this  out 

Mr.  WOKDEN  supposed  the  object  ought  to  be 
to  give  the  Governor  thus  absent  the  power  to  call 
after  him  the  residue  of  the  militia,  which  the  ac- 
ting Governor  might  prevent.  Suppose  the  Go- 
vernor was  just  over  the  line  in  Canada,  and  just 
about  to  engage  with  an  enemy  of  a  very  superior 
force;  and  it  might  be  absolutely  necessary  that 
he  should  have  power  to  convene  the  forces  that 
he  has  left  behind.  Now,  a  jealous  acting  Cover 
nor  might  prevent  his  so  doLig,  and  sacrifice  him. 
Mr.JORDAN  had  in  his  view  an  entirely  different 
case — a  case  when  a  requisition  might  be  made 
on  the  State  for  an  additional  military  force,  and 
when  the  emergency  would  not  admit  ot  delay 
for  orders  from  the  absent  Governor.  There 
would  be  no  difficulty  if  the  Governor  of  the 
State  commanding  the  militia  out  of  the  Stale, 
should  make  a  requisition  for  the  militia  left 
behind  in  this  State;  if  the  United  States  was 
then  to  make  a  requiaition  for  a  military  force 
ou  this  Sta'e,  there  would  be  difficulty  in  th£ 
acting  Governor's  complying  and  ordering  itouW 
Or  whilst  a  Governor  was  away  in  Louisiana, 
and  trouble  occurs  here;  before  news  could  be 
sent  to  the  Governor  there,  and  his  orders  be 
got  br<rk,  :'l  the  difficulty  might  be  over,  and 
the  mischief  be  all  done.  He  wanted  to  pro. 
vide  for  this. 

Mr.  F.  F.  BACKUS  said  he  believed  we  had 
had  once  a  Governor  who  was  on  the  borders  of 
our  State  near  to  Canada  (laughter)  and  who  was 
exceedingly  afraid  of  falling  into  the  hands  of  the 
enemy— afraid  that  "the  Aaa>acutive  woald  fall 
into  the  enemy  !"  (Much  laughter.) 

Mr.  JORDAN  :  suppose  the  governor  was  2000 
miles  off;  and  an  irruption  from  Canada  took 
place,  who  was  to  call  out  the  military? 

Mr.  WORDEN:  The  person  acting  as  Govern- 
or— the  Lt  Governor. 

Mr.  JORDAN'S  amendment  was  lost. 

Mr.  DANA  offered  this  :— 

"  In  case  of  the  impeachment  of  the  Governor  or  his  re 
moral  from  office,  death,  inability  to  discharge  the  powers 
and  duties  of  his  office,  resignation,  or  absence,  from  the 
State,  (except  with  the  consent  of  the  legislature  in  time 
of  war  at  the  head  of  a  military  force  of  the  State,)  the 
powers  and  duties  of  his  office  shall  devolve  on  the  Lieut. 
Governor  for  the  residue  of  the  terra  or  until  the  disability 
cease." 

Mr  DANA  said  that  to  avoid  misunderstand- 
ing  he  offered  this  as  a  substitute  for  the  whole 
section;  to  provide  that  the  Governor  whilst  ab- 
sent should  still  be  Governor  of  the  State,  and 
Commander  in  Chief  of  the  State. 

The  amendment  was  lost- 

Mr.  STOW  now  renewed  his  proposition  (be- 
fore  given)  modified  so  as  to  give  two-thirds  of  the 
Legislature  power  to  decide  on  a  case  of  inability 
when  the  Governor  should  be  considered  incom- 
petent, and  giving  the  speaker  of  the  assembly 


power  to  convene  the  legislature  tor  that  purpose. 
Mr.S  said  hecould  never  consent  to  leave  the  word 
"inability"  there,  without  providing son.e  tribunal 
for  ascertaining  it.  It  was  such  a  question  as  this 
that  shook  the  British  throne  to  its  centre,  be- 
cause they  did  not  provide  means  to  decide  when 
ihe  king  was  disabled.  The  safest  tribunal  he 
could  devise  was  the  legislature,  by  a  two-third 
vote.  He  was  loth  to  take  up  time  by  a  single  re- 
mark ;  but  he  could  not  consent  to  involve  the 
country  in  the  danger  of  revolution  because  it  might 
take  a  little  time  to  make  provision  lor  this  con- 
tingency. He  would  not  consent  to  omit  to  guard 
against  this  evil ;  he  would  provide  a  tribunal  that 
should  decide  when  this  inability  shall  commence, 
and  when  it  shall  cease.  He  would  place  it 
where  it  would  be  safest ;  that  is  to  be  decided  by 
a  two-third  vote  in  the  Legislature. 

Mr.  TAGGART  hoped  the  Convention  would 
not  vote  down  this  from  the  habit  they  had  got 
into  of  voting  down  every  thing.  [Laughter.] — 
It  was  a  proposition  that  deserved  consideration. 
It  was  proper  some  tribunal  should  have  to  decide 
on  the  matter. 

Mr.  WORDEN  said  its  propriety  was  obvious. 
Leave  in  this  word  "inability,"  and  provide  no 
mode  of  determining  the  question  of  inability,  and 
it  may  lead  to  anarchy — it  may  lead  to  confusion 
of  the  worst  kind.  The  propriety  of  the  resolu- 
tion is  obvious — the  power  to  decide  must  remain 
somewhere. 

Mr.  STETSON  insisted  that  it  was  a  quasi  im- 
peachment, and  that  it  gave  the  legislature  pri- 
vilege to  expel  the  Executive,  from  factious  con- 
siderations. It  destroyed  the  whole  symmetry  of 
the  system  of  impeachment.  Why  not  make  it 
conform  more  nearly  to  that  system  ?  It  would 
be  a  much  more  formidable  power  even  than  im- 
peachment. 

Mr.  WORDEN  replied  that  it  was  more  guard- 
ed than  the  mode  of  impeachment.  A  majority 
of  one  branch  might  impeach.  This  required 
two-thirds  of  both  houses.  And  it  was  hardly  to 
be  supposed  that  two-thirds  of  any  legislature 
would  venture  to  remove  a  Governor,  from  fac- 
tious or  party  considerations.  Would  the  gen- 
tleman leave  this  word  inability  to  stand,  without 
any  power  any  where  to  define  and  regulate  it  ? — 
What  case  could  arise  to  the  effect  spoken  of? 

Mr.  STETSON  :  A  case  of  partial  paraylis ; 
and  look  at  the  case  of  Senator  Niles,  in  Con- 
gress ;  in  times  of  high  political  heat  some  men 
would  do  any  thing. 

Mr.  CAMBRELENG  thought  there  could  be 
no  difficulty  in  leaving  this  section  precisely  where 
it  stands.  In  case  of  the  lunacy  of  the  Governor, 
the  constitution  provided  who  should  be  Gover- 
nor. The  constitution  provides  our  Regent ;  there 
never  occurred  here  a  vacancy  as  in  England ;  and 
we  wanted  no  Regent  proper ;  the  Lt.  Governor 
must  act  in  such  a  case.  The  Constitution  com- 
pels him. 

Mr.  WORDEN :  But  when  and  how  is  the  fact 
of  lunacy  to  be  ascertained  ?  Who  is  to  decide  ? 

Mr.  CAMBRELENG  replied  that  the  fact 
would  be  notorious.  What.  Lt.  Governor  would 
wait  a  moment  if  the  Governor  was  sent  to  a  Lu- 
natic Asylum. 

Mr.  STOW :  Suppose  he  was  not  sent. 


308 


Mr.  CAMBRELENG:  Well,  or  suppose  he  was 
confined  in  his  own  house,  was  not  the  Constitu- 
tion sufficient  ?  It  is  easily  determined.  Would 
not  the  legislature  under  this  word  "  inability," 
be  at  liberty  to  make  explanatory  clauses  ?  Our 
Constitution  provides  our  regent.  The  British 
Constitution  had  no  such  provision — and  therefore 
Parliament  had  to  act  and  provide  a  Regent.  The 
Lieut.  Governor  must  act. 

Mr.  STOW :  Suppose  the  Lieut.  Governor  him- 
self is  insane  ?  [Laughter.] 

Mr.  W.  TAYLOR  remarked  that  if  the  Lieut. 
Governor  usurps  authority,  he  would  be  liable 
to  impeachment  and  would  be  impeached  and  be 
punished. 

Mr.  WORDEN  :  You  would  throw  on  the  Lt. 
Governor  the  responsibility  of  judging  of  the  case 
in  which  he  shall  act,  with  the  peril  of  an  im- 
peachment hanging  over  his  head  ? 

Mr.  TAYLOR :  And  if  he  goes  wrong  he  will 
be  punished — the  people  will  punish  him — he 
would  not  dare — (cries  of  order — order,) — that  is 
a  palpable  case. 

Rap — rap — rap  went  the  Chairman's  hammer, 
and  Mr.  TAYLOR  took  his  seat. 

Mr.  BROWN  said  that  it  was  true  that  if  the 
Lieut.  Governor  usurped  the  power  he  would  be 
liable  to  be  impeached  and  to  be  tried  by  the  legis- 
lature— but  how  long  would  it  be  before  he  was 
tried.  It  might  be  as  long  as  the  trial  of  Warren 
Hastings,  which  lasted  13  years,  or  that  of  Judge 
Peck  in  Congress,  which  lasted  one  session. — 
What  would  become  of  the  government  in  the  in- 
terim, He  would  not  consent  to  the  introduction 
in  the  Constitution  of  any  provisions  that  might 
lead  to  the  introduction  of  difficulties  such  as  he 
had  anticipated.  The  gentleman  from  Suffolk 
was  undoubtedly  right  that  the  Constitution  pro- 
vided that  when  the  office  became  vacant  it  should 
it  should  be  supplied  by  the  Lieutenant  Governor. 
In  that  respect,  it  differed  from  the  British  con- 
stitution, but  in  the  case  he  (Mr.  B.)  put,  the  si- 
militude was  exact.  The  question  was,  how  was 
this  liability  to  be  ascertained.  That  was  an  open 
question,  out  of  which  might  grow  great  doubt  and 
difficulty,  and  he  insisted  that  the  safest  and  most 
prudent  course  to  pursue  was,  to  let  the  constitu- 
tion stand  in  that  respect  as  it  now  was,  and  as 
it  had  stood  for  twenty  odd  years,  without  a  word 
of  complaint. 

Mr.  NICHOLAS  was  in  favor  of  making  pro- 
vision for  disability — not  in  the  Constitution,  but 
he  would  let  the  Legislature  specify  by  a  general 
statute  what  should  constitute  it. 

Mr.  MANN  was  in  favor  of  the  proposition  of 
the  gentleman  from  Orange.  He  believed  the 
wisest  course  was  to  leave  the  constitution  as  it 
stood  in  this  respect. 

Mr.  STOW  was  willing  to  have  the   question 
now  decided  on  the  proposition  of  the  gentleman 
from  Orange,  and  to  allow  that,  he  would  now 
withdraw  his  proposition  for  the  present. 
Mr.  BASCOM— I  hope  not. 
Mr.  BROWN  would  now  propose  to  strike  out 
the  word  "inability,"  so  as  to  leave  the  section  as 
it  now  stood  in  the  present  constitution. 

Mr.  SIMMONS  could  not  see  that  any  thing 
was  to  be  made  by  that. 

Mr.  W.  TAYLOR  rose  to  a  question  of  order.— 


The  proposition  that  had  just  been  adopted  could 
not  be  striken  out  without  a  reconsideration. 

The  CHAIR  thought  the  motion  to  be  in  ordei , 
inasmuch  as  it  proposed  to  stiike  out  more  matter. 

Mr.  SIMMONS  could  not  conceive  that  any- 
thing was  to  be  gained  by  this  course.  Where 
was  the  tribunal  that  was  to  try  this  question.  Mr. 
S.  urged  the  necessity  of  providing  some  provis- 
ion in  the  Constitution  to  declare  what  should 
when  it  might  lead  to  disputes,  and  such  scenes 
constitute  disability,  rather  than  to  leave  it  open, 
as  were  witnessed  in  Pennsylvania  a  few  yesar 
on  a  different  question.  The  conflicts  of  party  and 
irregularity  of  election  returns  would  happen— 
and  it  was  the  business  of  wise  men  to  provide  a- 
gainst  them  The  amendment  of  the  gentleman 
from  Erie,  ought  not  lobe  withdrawn.  The  com- 
mittee had  got  into  that  predicament,  which  we 
all  do  when  we  inadvertently  commit  an  error, 
in  voting  down  his  amendment  (a  laugh  )  Gen- 
'ileman  had  taken  up  this  question  as  though  it 
was  fif  to  leave  the  matter  entirely  unprovided  for 
until  the  event  should  occur — to  be  decided  amid 
the  conflicts  of  party— under  a  special  rule  to  be 
provided  for  the  occasion— the  same  as  was  adopt, 
ed  in  England,  when  they  expelled  James  the 
First  from  the  government,  and  declared  the 
throne  vacant.  We  did  not  want  such  a  mode, 
when  it  was  possible  to  have  a  mode  of  pro- 
ceeding prospective. 

Mr.  MORRIS  said  that  this  particular  section 
flanged  more  properly  to  the  committee  on  the 
duties  and  powers  of  the  Legislature.  They 
should  provide  for  the  passage  of  some  law  in 
relation  to  an  exigency  of  this  kind. 

Mr.  VAN  SCHOONHOVEN  said  the  ques- 
tion of  forming  the  Constitution  was,  should 
there  not  be  a  provision  for  every  defect  that  ex- 
isted ?  Mr.  V.  S.  went  on  briefly  to  urge  that  the 
question  should  be  left  to  the  people  through  the 
Legislature  to  determine. 

Mr.  STOW  varied  his  amendment,  so  as  to  re- 
quire a  vote  of  three-fourths  of  the  legislature, 
instead  of  four-fifths,  at  the  suggestion  of  others. 

A  brief  debate  followed  between  Messrs.  VAN 
SCHOONHOVEN,  RHOADES,  LOOM1S,  WOR- 
DEN and  STOW,  when  the  question  being  taken 
the  amendment  was  rejected — ayes  28,  nays  not 
counted. 

The  7th  section  was  then  read  as  follows  : — 

^  7  The  Lieutenant  Governor  shall  be  President  of  the 
Senate, but  shall  have  only  a  casting  vote  theiem.  It  dur- 
ing a  vacancy  of  the  uflice  of  Governor,  the  Lieutenant 
Governor  shall  bs  impeached,  displaced,  resign,  di<j,  or  be. 
come  incapable  of  performing  the  duties  ot  his  office,  or 
be  absent  from  the  State,  the  President  of  the  Senate  shall 
act  as  Governor  until  the  vacancy  be  filled,  or  the  disabil. 
ity  shall  cease. 

Mr.  W.  TAYLOR  moved  to  strike  out  the  words 
"  from  mental  or  physical  disease."  Agreed  to. 

Mr.  F.  F.  BACKUS  moved  to  amend  so  as  to 
require  of  the  Lieutenant  Governor  the  same 
qualifications  of  eligibility  as  of  the  Governor. — 
Agreed  to,  35  to  34. 

The  8th  section  was  then  read  as  follows  : — 

§8  The  Lieut.  Governor  shall  receive  six  dollars  for 
every  day's  attendance  as  President  of  the  Senate;  and  he 
shall  also  receive  the  like  compensation  for  every  twenty 
miles  travel  in  going  to  and  returning  from  the  place  of 
meeting  of  the  Stnate  in  the  discharge  of  his  duties. 

Mr.  BAKER  proposed  an  amendment  fixing  the 


309 


mileage  of  the  Lieutenant  Governor  at  the  sauue 
•!1  >\vi>i]  to  I  he  members  of  the  Senate. 

Mr.  TILDEN  suggested  that  inasmuch  as  the 
provision  in  relation  to  the  compensation  of  the 
Governor  had  been  stricken  out,  it  would  undoubt- 
edly be  deeined  proper  to  strike  the  whole  section 
out  also. 

Mr.  RICHMOND  did  vote  or  should  have  voted 
in  favor  of  not  fixing  the  salary  of  the  Governor, 
and  he  should  vote  to-day  to  strikeout  this  section 
but  not  for  the  same  reason.  He  wished  to  call 
at'en  ion  to  this  matter  of  salaries.  He  would 
not  give  the  Legislature  the  power  to  increase  or 
diminish  the  salary  of  governor  at  their  will, 
from  political  or  any  other  considerations. — 
When  we  came  to  the  other  officers  to  the  Judi- 
ciary— of  which  it  was  said  there  was  to  be  a 
large  increase — some  said  to  30,  other  50  and 
others  again  to  70 — all  of  which  were  salaried 
officers — he  supposed  that  the  same  rule  would 
be  adopted  as  in  relation  to  the  Governor.  Their 
terms  may  be  seven  years,  others  say  ten,  and 
some  again  five.  Otherwise  if  the  first  legislature 
should  fix  them  too  low  it  would  lead  to  the  same 
difficulties,and  men  would  be  canvassing  the  coun- 
ties for  election  on  the  ground  that  they  were  lib- 
eral minded  men,  and  in  favor  of  few  salaries. 

The  CH.AIR  felt  bound  to  invest  this  debate  as 
not  being  in  order. 

Mr.  RICHMOND  said  he  had  accomplished  his 
object. 

Mr  BAKER  in  accordance  with  the  general 
suggestion  withdrew  his  amendment  and  moved 
to  stiike  out  the  whole  section 

Mr-  RHOADES  moved  to  amend  so  as  to  pro- 
vide that 'he  Lieutenant  Governor  should  while 
acting  as  such  receive  a  compensation  to  be  fixed 
by  law,  not  to  be  increased  or  diminished  by  law 
during  his  continuance  in  office. 

The  CHAIR  said  the  question  was  first  on  the 
motion  to  s'nke  '>ut. 

The  question  being  taken  the  section  was  strick- 
en out. 

Mr.  RHOADES  then  proposed  his  substitute 
and  it  was  adopted. 

The  commute  then  rose  and  reported. 

Mr.  CHATFIELD  wished  to  return  an  act  of 
kindness.  He  wished  to  ask  leave  of  absence  for 
Mr.  STRONG  for  two  weeks.  It  was  granted,  as 
was  leave  of  absence  to  Mr.  MANN  for  one  week. 

And  the  Convention  then  adjourned. 

WEDNESDAY,  (36th  day)  July  15. 

Prayer  by  the  Rev.  Mr.  HITCHCOCK. 

Mr.  BOUCK  presented  a  memorial  from  Mr. 
Samuel  White,  and  many  other  citizens  of  Scho- 
harie,  in  regard  to  the  public  debt,  and  State 
finances. 

Mr.  BOUCK  presented  a  plan  for  a  judiciary, 
proposed  by  one  of  the  Judges  of  the  Schoharie 
Common  Pleas. 

ELECTIVE  FRANCHISE. 

Mr.  BOUCK,  from  committee  No.  4,  presented 
the  following  report : 

ARTICLE  . 

^  1.  Every  white  male  citizen  of  the  age  of  twenty-one 
years,  who  shall  have  been  a  citizen  (or  sixty  days,  and  an 
inhabitant  ol  this  State  one  year  next  preceding  any  elec- 
tion, and  for  the  last  six  months  a  resident  of  the  county 
where  he  may  offer  his  vote,  shall  be  entitled  to  vote  at 


such  election,  in  the  election  district  of  which  he  shall 
have  been  an  actual  resident  during  the  last  preceding 
sixty  days,  and  not  elsewhere;  for  allofficers  that  noware 
or  hereafter  may  be  elective  by  the  People. 

§  2.  Laws  may  be  passed  excluding  from  the  right  of  sul- 
frage  all  persons  who  have  been,  or  may  be  convicted  ol 
bribery,  of  larceny,  or  of  any  infamous  crime,— and  for  de- 
priving every  person  who  shall  have  a  bet  or  wager  de- 
pending upon  the  direct  or  indirect  result  of  any  election, 
from  the  right  to  vote  at  such  election. 

§  3.  Laws  may  be  passed  providing  that  after  the  year 
one  thousand  eight  hundred  and  fifty -five,  no  person  shall 
have  the  right  ol  suffrage  under  this  Constitution  unless 
he  can  read  the  English  language. 

§  4.  For  the  purpose  of  voting,  no  person  shall  be  deem- 
ed to  have  gained  or  lost  a  residence  by  reason  of  his  pre- 
sence or  absence  while  employed  in  the  service  of  the 
United  States,  nor  while  engaged  in  the  navigation  of  the 
waters  of  this  State,  or  of  the  United  States,  or  ol  the  high 
seas,  nor  while  a  student  of  any  seminary  of  learning,  nor 
while  kept  at  any  alms-house  or  other  asylum  at  public 
expense,  nor  while  confined  in  any  public  prison. 

§  5  Laws  shall  be  made  for  ascertaining  by  proper  procf 
the  citizens  who  shall  be  entitled  to  the  right  of  suffrage 
hereby  established. 

§  6.  All  elections  by  the  citizens  shall  be  by  ballot,  ex 
cept  for  such  town  officers  as  may  by  law  be  directed  to 
be  otherwise  chosen. 

^  7.  Every  elector  of  this  State  shall  be  eligible  to  any 
office  under  the  Constitution  except  as  herein  otherwise 
provided  But  no  person  shall  be  elected  or  appointed  to 
a  local  office  who  is  not  an  elector  in  the  district,  county, 
city,  town  or  ward  lor  which  he  may  be  elected  or  ap- 
pointed. 

§  8.  No  person  holding  any  office  orplace  of  public  trust, 
in,  or  under  the  government  of  the  United  States,  shall  be 
eligible  to,  or  hold  any  office  or  place  of  public  trust  under 
the  Constitution  or  laws  of  this  State. 

The  following  is  submitted  to  the  consideration 
of  the  Convention,  and  recommended  to  be  sub- 
mitted separately : — 

§  Colored  male  citizens,  possessing  the  qualifications 
required  by  the  first  section  of  this  article,  shall  also  have 
the  right  to  vote  lor  alt  officers  that  are  or  hereafter  may- 
be elective  by  the  people. 

W.  C.  BOUCK,  Chairman. 

Mr.  BOUCK  said  that  the  report  met  the  unan- 
imous approbation  of  the  committee  ;  but  all  the 
members  of  the  committee  did  not  agree  to  all  the 
details ;  and  each  member  reserved  to  himself  the 
right  to  dissent  hereafter. 

Report  ordered  printed  and  sent  to  committee 
of  the  whole. 

Mr.  TAGGART  moved  to  have  1200  printed 
instead  of  800. 

Mr.  PATTERSON  opposed  this;  there  were 
1200  printed  of  the  last  report,  and  before  they 
were  laid  on  their  tables,  the  report  had  reached 
Chautauque  county  through  the  newspapers. 

800  were  ordered  to  be  printed. 

Mr.  DORLON,  as  a  member  of  this  committee, 
submitted  the  following  substitute  for  the  1st  sec- 
tion of  this  report : — 

ij  1.  Every  m«ile  citizen  of  the  age  of  twenty-one  years 
who  shall  have  been  a  citizen  for  sixty  da\  s,  and  an  in- 
habitant of  this  State  one  year  next  preceding  any  election, 
and  for  the  last  six  months  a  resident  of  the  county  where 
he  may  offer  his  vote,  anl  sha.l  have  within  the  year  next 
preceding  such  election,  paid  a  tax  to  the  State  or  county 
assessed  upon  his  estate,  or  can  r^ad  the  English  ianguag  •' 
shall  be  entitled  to  vote  at  such  election  in  the  election  uis- 
trict  of  which  he  shall  have  teen  an  actual  resident  during 
the  last  preceding  sixty  days,  and  not  elsewhere,  lor  all 
officers  that  now  are  or  hereafter  may  be  elective  by  the 
people. 

On  motion  of  Mr.  CHATFIELD,  this  was  re- 
ferred to  the  same  committee  of  the  whole,  and 
ordered  printed  with  the  report  of  the  committeej 


310 


LOCAL  OFFICERS. 

Mr.  ANGEL  from  committee  No.  7,  submitted 
the  following  report : — 

ARTICLE  

&  1.  Sheriff's,  lerks  of  counties,  including  the  register 
and  clerk  of  the  city  and  county  of  New  York,  coroners, 
not  exceeding  four  in  each  county,  and  district  attorneys, 
shall  be  chosen  by  the  electors  of  the  respective  counties, 
once  in  every  two  years,  and  as  olten  as  vacancies  shall 
happen.  Sheriffs  shall  hold  no  other  office,  and  be  ineligi- 
ble for  the  next  two  years  after  the  termination  of  their 
offices.  They  may  be  required  by  law  to  renew  their  se- 
curity from  time  to  time,  and  in  default  of  giving  such< 
new  security,  their  offices  shall  be  de«med  vacant.  But 
the  coun:y  shall  never  be  mads  responsible  for  the  acts  of 
the  sheriff  ;  and  the  Governor  may  remove  any  such  offi- 
cer, except  district  attorney,  within  the  term  for  which  he 
shall  have  been  elected,  giving  to  such  officer  a  copy  of 
the  charge  against  him  and  an  opportunity  of  being  heard 
in  his  defence. 

&  2.  District  attorneys  may  be  removed  from  office  at  any 
time  within  the  term  lor  which  they  shall  have  been  elect- 
ed by  the  county  courts  of  the  respective  counties  of  this 
State  giving  to  such  district  attorney  a  copy  of  the  charges 
against  him,  and  an  opportunity  of  being  heard  in  his  de- 

&  3.  The  Board  of  Supervisors  shall  fix  the  number  of  super 
intendents  of  the  poor  who  shall  be  chosen  by  the  electors, 
not  exceeding  three  in  each  county;  and  when  more  than 
one  shall  be  chosen  in  each  county  they  shall  divide  them 
into  classes  so  that  one  shall  be  chosen  each  year,  after 
the  first  election. 

&4.  A  County  Treasurer  shall  be  annually  chosen  by  the 
e/ectors  of  each  county.  He  shall  hold  his  office  for  one 
year  unless  sooner  removed.  He  may  be  required  by  the 
Board  of  Supervisors  to  give  such  security  as  they  shall 
approve,  and  to  renew  the  same  from  time  to  time;  and  in 
case  of  default  in  giving  or  renewing  such  security,  when 
required,  his  office  shah  be  deemed  vacant.  The  Board  of 
Supervisors  ot  each  county  shall  have  power  to  remove 
such  Treasurer  from  office, whenever  they  shall  deem  such 
removal  necessary  for  the  safety  of  the  county,  giving  such 
Treasurer  a  copy  of  the  charges  against  him,  and  an  oppor- 
tunity of  being  heard  in  his  defence;— and  shall  have  pow- 
er to  fill  vacancies  in  the  office  of  County  Treasurer  by 
appointment,  until  the  next  annual  election. 

&  5.  Mayors  of  cities,  in  the  several  cities  of  the  State, 
shall  be  chosen  annually  by  the  electors  entitled  to  vote 
for  members  of  the  Common  Councils  of  such  cities  re- 
ft 6.  All  officers  now  elected  by  the  people  shall  continue  to 
be  elected.  All  county  officers  whose  election  or  appoint. 
ment  is  not  provided  for,  by  this  constitution,  shall  be  elec- 
ted by  the  electors  of  the  respective  counties  or  appointed 
by  the  boards  of  supervisors,  as  the  legislature  shall  direct. 
All  city,  town  and  village  officers,  whose  election  or  ap- 
pointment is  not  provided  for  by  this  constitution,  shall  be 
elected  by  the  electors  of  such  cities.towns  and.villages,  or 
appointed  by  such  authorities  thereof  as  the  legislature 
shall  designate  for  that  purpose  All  other  officers  whose 
election  or  appointment  is  not  provided  for  hy  this  consti- 
tution, and  all  officers  whose  offices  may  hereafter  be  cre- 
ated by  law,  shall  be  elected  by  the  people,  or  appointed, 
as  the  legislature  may  by  law  direct. 

&  7.  The  several  officers  in  this  article  alluded  to,  shall 
possess  the  powers  and  perform  the  duties  now  provided 
by  law,  and  such  as  the  legislature  shall  hereafter,  from 
time  to'time,  by  law  direct. 

&  8.  The  Legislature  shall  regulate  by  law  the  fees  or 
compensation  of  all  county,  town  or  other  officers  for 
whose  compensation  no  other  provision  is  made  in  this 
constitution. 

&9.  The  Board  of  Supervisors  in  each  county,  shall  fix 
the  annual  compensation  of  the  District  Attorney,  which 
shall  not  be  changed,  after  his  election,  during  the  term  for 
which  he  shall  have  been  chosen. 

§  10.  Where  the  duration  of  any  office  is  not  provided  by 
this  constitution,  it  may  be  declared  by  law;  and  if  not  so 
declared,  such  office  shall  be  held  during  the  pleasure  of 
the  authority  making  the  appointment. 
By  order  of  the  Committee, 

W.  G.  ANGEL,  Chairman. 

Mr.  ANGEL  said  that  it  was  proper  for  him  to 
say  that  the  committee  were  unanimous  in  ma- 
king the  report,  but  they  were  not  unanimous  in 
the  details ;  and  that  each  member  would  reserve 


to  himself  the  right  to  express  his  views  upon  or 
m  opposition  to  any  of  the  details  when  they 
should  come  up  for  consideration  hereafter.  The 
committee  had  found  it  impracticable  to  incorpo- 
rate the  names  and  titles  of  all  the  officers  whose 
powers  and  duties  are  local  in  this  report.  For  it 
would  make  a  book  larger  than  the  Constitution 
itself.  They  had  said  nothing  about  judicial  offi- 
cers whose  powers  and  duties  were  local ;  for 
they  had  had  a  conference  with  the  Judiciary 
committee  and  learned  from  that  body  that  its 
members  intended  to  report  in  relation  to  Surro- 
gates, County  Judges,  Clerks  of  Courts,  &c.,whom 
this  committee  had  omitted  to  mention  ;  although 
their  powers  and  duties  are  local.  They  had  not 
said  anything  about  weighers,  measurers,  &c. ; 
regarding  them  as  a  class  of  officers  whose  duties 
were  similar  to  those  of  inspectors  ;  and  as  an- 
other committee  had  already  reported  in  relation 
to  the  powers  and  duties  of  inspectors  ;  therefore 
they  left  them  to  be  disposed  of  as  the  Legislature 
might  see  fit.  There  was  still  another  class,  that 
of  harbor-masters,  port- wardens,  &c.;  the  com- 
mittee had  not  thought  proper  to  recommend  that 
they  should  be  elected  by  the  people,  as  it 
would  very  much  encumber  a  ticket,  and  be 
unwise,  impolitic  and  unnecessary.  And  there 
was  still  another  class  of  officers,  such  as 
health  officers,  resident  physicians,  health  war- 
dens, &c.;  those  also  the  committee  had  left- 
to  be  disposed  of  by  the  legislature  in  its  wisdom. 
And  there  was  yet  another  class,  [a  laugh.]  that 
of  turnpike  inspectors,  pilots,  Indian  peace 
makers,  &c.,  &c.,  [laughter,]  and  a  whole  host  of 
them,  that  they  had  left  for  the  regulation  of  the 
legislature  when  they  were  not  provided  for  else- 
where. He  hoped  the  report  would  meet  the  ap- 
probation of  the  Convention  and  when  the  time 
arrived  for  its  discussion,  the  members  of  the 
committee  would  endeavor  to  explain  it  to  the 
best  of  their  ability.  The  committee  knew  the 
report  was  imperfect ;  but  they  had  acted  accord- 
ing to  the  best  lights  they  could  gel  on  the  sub- 
ject. He  hoped  the  Convention  would  view  it  in 
as  favorable  light  as  possible. 

It  was  referred  to  the  committee  of  the  whole 
and  printed. 

Mr.  LOOMIS  moved  to  appoint  a  committee  of 
five  to  consider  and  report  upon  the  order  in 
which  the  reports  of  committees  should  be  taken 
up  and  considered  by  the  Convention.  Mr.  L. 
said  there  were  seven  important  reports  now  be- 
fore them,  and  two  or  three  others  to  come.  And 
as  it  was  evident  the  Convention  would  not  have 
time  to  consider  them  all  as  fully  as  was  desira- 
ble, he  would  propose  a  plan  by  which  the  most 
important  shonld  be  considered  first. 

This  was  adopted. 

Mr.  HARRISON  moved  a  resolution  of  inquiry 
as  to  whether  the  definition  of  Treason,  as  given 
in  the  Revised  Statutes,  should  not  be  incorpora- 
ted into  the  new  Constitution. 

Agreed  to,  and  referred  to  committee  No   10. 
EXECUTIVE  DEPARTMENT. 

The  committee  of  ihe  \\hole,  Mr.  CHATFIELD 
in  the  Chair,  resumed  the  consideration  of  there- 
port  on  this  subject. 

The  9th  section  was  read  as  follows: 

$5  9  The  Governor  and  Lieut.  Governor,  or  either  of 
them  shall  not)  ex-officio  or  otherwise,  hold  any  other  office 


311 


of  trust,  honor,  profit  or  emolument  under  the  State  or  Uni- 
ted States,  or  any  other  State  of  the  Union,  or  any  foreign 
State  or  Government;  the  acceptance  by  the  person  hold- 
ing the  office  of  Governor  or  Lieut.  Governor,  of  any  other 
office  of  trust,  honor,  profit  or  emolument  under  the  State 
or  the  United  States,  or  any  other  State  of  the  Union,  or 
any  foreign  State  or  Government,  shall  vacate  his  said  of- 
fice of  Governor  or  Lieut.  Governor. 

Mr.  NELLIS  moved  to  strike  out  all  from  the 
word  "  emolument,"  in  line  three,  to  "  govern- 
ment," in  line  five.  He  could  see  no  need  for 
these  words — they  were  entirely  unnecessary, 
and  a  foolish  tautology. 

Mr.  SIMMONS  said  the  phrase  was  a  very 
proper  one ;  and  very  wisely  discriminated  be- 
tween the  offices  held  under  the  government  of 
the  U.  States  or  other  States,  and  those  held 
in  this  State  of  honor  or  trust;  such  as  a  trus- 
tee, of  a  college,  a  director  in  a  literary  insti- 
tution, &c.  Now  if  a  gentleman  happens  to  be 
a  trustee  of  a  college,  and  is  a  very  useful  man 
there,  if  he  should  happen  to  be  made  gov- 
ernor, he  would  not  remove  him  from  his  trus- 
teeship on  that  account. 

Mr.  NELLIS  withdrew  his  amendment  after 
this  explanation. 

Mr.  RICHMOND  asked  if  the  governor  would 
be  capable  or  qualified  under  this  section  to  hold 
the  office  of  a  trustee  of  a  college. 

Mr.  SIMMONS  said  he  thought  that  he  would. 
At  any  rate,  he  wanted  to  see  him  a  Trustee  of 
some  of  them. 

Mr.  RICHMOND  had  a  word  or  two  to  say 
about  this.  He  knew  of  instances  where  thou- 
sands upon  thousands  of  dollars  had  been  lavish- 
ed and  frittered  away  upon  these  institutions,  to 
pay  proie*sors  and  officers  of  the  same.  The 
usual  rule  with  some  of  these  colleges  and  higher 
seminaries  of  learning,  had  been  to  come  to  the  Le» 
gislature  and  get  an  appropriation  as  large  as  they 
could  possibly  get  out  and  out,  and  then  come  the 
next  year  and  get  a  loan  of  five  or  ten  thousand  dol- 
lars out  of  the  deposite  fund,  and  when  pay  day 
came,come  to  theLegislature  and  ask  to  be  released 
from  the  payment  of  said  loan,  which  relief  was 
always  granted.  There  was  a  case  where  a  pro- 
fessor in  one  of  the  Colleges,  receiving  a  salary, 
spent  a  whole  winter  in  this  city,  lobbying  a  bill 
through  to  appropriate  several  thousand  dollars 
from  the  deposite  fund  to  endow  a  Professorship 
in  his  institution,  and  that  bill  passed  and  received 
the  sanction  of  the  Governor. 

The  CHAIR.  That  part  of  the  discussion  is 
out  of  order  at  present. 

Mr.  W.  TAYLOR  would  ask  of  Mr.  ANGEL 
if  his  committee  had  reported  any  clause  disquali- 
fying the  officers  under  the  State  government  from 
holding  office  under  the  general  government  ? 

Mr.  ANGEL  said  they  had  not. 

A  MEMBER.  That  is  reported  by  committee 
No.  4.  (Mr.  BOUCK'S). 

Mr.  BROWN  said  that  he  desired  to  take  the 
sense  of  the  committee  on  the  propriety  of  re- 
taining this  section.  This  section  designed  to  for- 
bid the  Governor  and  the  Lieutenant  Governor 
to  hold  any  other  office  of  trust,  honor,  profit,  or 
emolument  under  the  state  or  the  United  States. 
In  this  respect  he  thought  it  was  of  very  question- 
able propriety. 

The  CHAIR.  Does  the  gentleman  from  Or- 
ange propose  to  offer  any  amendment. 


Mr.  BROWN.  Yes,  sir,  I  intend  to  move  to 
have  the  whole  of  it  stricken  out  of  the  article. 

Mr.  W.  TAYLOR  requested  the  Chair  to  read 
a  provision  which  was  in  the  report  of  the  fourth 
standing  committee,  relative  to  other  offices. 

The  Secretary  read  the  8th  section  of  the  re- 
port alluded  to,  as  follows  : 

^  8.  No  person  holding  any  office  or  place  of  public 
trust,  in  or  under  the  government  of  the  United  States, 
shall  be  eligible  to,  or  hold  any  office  or  place  of  public 
trust  under  the  Constitution  or  laws  of  this  State. 

Mr.  BROWN  said  that,  being  desirous  to  have 
this  section  stricken  out,  he  had  made  the  mo- 
tion now,  so  that  he  might  have  the  privilege,  if 
he  failed  here,  to  renew  his  motion  when  they 
got  back  into  the  House.  The  provision  was  a 
very  questionable  one,  considering  the  structure 
and  economy  of  our  government.  The  several 
States  of  the  Union  were  sovereign  and  indepen- 
dent in  themselves  ;  but  there  might  be  emergen- 
cies, in  case  of  war  for  instance,  when  the  Gov- 
ernors of  frontier  States,  and  particularly  of  this 
State,  might  be  called  upon  to  take  important 
parts  in  such  wars.  The  contingency  might  be 
of  this  character;  there  might  be  a  war  with 
Great  Britain — of  which,  however,  he  did  not  see 
any  probability  at  present ;  he  hoped  there  never 
would  be ;  and  yet  it  was  proper  that  we  should 
be  prepared — and  the  Governor  might  be  called 
upon  to  take  such  a  part  in  it  as  the  Governor  of 
this  State,  Daniel  D.  Tompkins,  took  in  the  late 
war.  The  Governor  might  be  called  upon  by  the 
President  of  the  United  States  to  take  charge  of 
the  U.  S.  troops  in  this  State,  or  to  negotiate 
with  the  authorities  of  Canada  or  Great  Britain;, 
and  the  Governor  ought  not  to  be  prevented  from 
accepting  that  delegated  authority.  Such  a  pow- 
er was  not  inconsistent  with  the  Constitution  un- 
der which  we  have  lived  for  many  years  without 
any  particular  evil  having  arisen.  And  yet  this 
section  would  prevent  the  Governor  of  this  State, 
in  the  event  of  such  a  contingency,  from  filling 
the  important  station  to  which  the  emergency  of 
the  occasion  might  call  him. 

Mr.  MORRIS  was  desirous  to  have  the  section 
stricken  out ;  but  not  for  the  reasons  assigned  by 
the  gentleman  from  Orange,  but  because  he  un- 
derstood that  committee  No.  7  had  reported  a 
provision  similar  in  effect. 

A  MEMBER  :  Committee  No.  4. 

Mr.  MORRIS  :  Well,  committee  No.  4. 
A  MEMBER:  But  that  does  not  reach  this  matter," 

Mr.  MORRIS :  Then  I  hope  it  will  not  be 
stricken  out 

Mr.  RHOADES  wished  the  9th  and  17th  rules 
read ;  he  could  not  hear  what  was  said.  They 
were  read,  amid  much  laughter. 

9.  While  the  President  is  putting  a  question,  no  member 
shall  walk  out  of,  or  across  the  house  j  nor  when  a  mem- 
ber is  speaking,  shall  any  member  be  engaged  in  conver- 
sation,  or  pass  between  him  and  the  chair. 

17.  No  member  shall  speak  more  than  twice  to  the  same 
question,  without  leave,  nor  more  than  once  until  every 
member  choosing  to  speak,  shall  have  spoken. 

The  CHAIR  said  that  members  really  must 
obey  the  rules  and  preserve  order. 

Mr.  MORRIS  then  said  that  he  hoped  the  com- 
mittee would  not  strike  out  this  provision.  He 
firmly  believed  it  to  be  a  wise  and  proper  provi- 
sion. Those  gentlemen  who  might  be  honored  by 
holding  office  under  the  State  Government,  should 


312 


not  be  trammelled  by  holding  office  under  the  gen- 
eral government,  and  especially  by  engagements 
with  any  other  states  and  foreign  governments. — 
He  saw  that  his  learned  friend  from  New  York 
was  laughing,  probably  because  he  (Mr.  MORRIS) 
was  in  a  peculiar  anomolous  position,  as  well  as 
his  friend,  "the  admiral,"  (Mr.  HOFFMAN)  both 
being  officers  under  the  general  government, 
[Post-Master  of  New  York,  and  Naval  officer 
of  that  port,]  and  delegates  of  the  people  of 
this  state  to  this  Convention.  But  he  was 
one  of  that  class  whom  this  did  not  effect ;  and 
it  had  ever  been  a  sacred  principle  with  him  that 
he  was  not  to  be  deterred  from  doing  his  duty 
from  any  fear  of  personal  ridicule.  He  was  not 
unconscious  of  the  position  in  which  he  stood  ; 
and  he  would  tell  the  committee  what  his  views 
were  on  that  subject.  He  held  that  no  obligation 
to  th3  general  government  should  interfere 
with  the  sacred  duty  due  to  the  people.  He 
thought  they  should  not  be  subjected  to  the  in- 
fluence of  the  general  government — that  they 
should  not  certainly  be  subjected  to  the  influ- 
ence of  any  adjoining  state  or  a  foreign  power,and 
that  no  gentleman  holding  an  office  under  the 
state  should  be  placed  in  such  a  position.  Now 
a  word  as  to  the  suggestion  of  his  friend  from 
Orange,  (Mr.  BROWN.)  They  were  acting  upon 
principle,  and  the  individual  mentioned  might 
properly  discharge  these  duties  to  the  state,  and 
to  the  general  government;  but  he  asked,  whe- 
ther, as  a  principle,  it  would  riot  be  dangerous  in 
the  extreme  to  allow  this  to  be  done  ?  Might  it 
not  be  dangerous  in  the  extreme  to  permit  the 
Governor  of  the  state  to  be  at  the  head  of  100,- 
000  regular  hired  troops  within  this  State  ?  And 
would  it  not  be  better  whenever  the  national  go- 
vernment might  find  it  necessary  to  send  within 
our  limits,  a  band  of  100,000  regular  hired  troops 
that  the  militia  should  be  separated  from  them, 
and  that  our  Governor  should  be  at  their  head  ? 
Would  there  not  be  greater  protection  for  the  popu- 
lace, by  the  militia  against  those  very  regular 
troops?  It  struck  him  a  case  of  that  sort  might 
arise  when  it  would  be  very  advantageous  to 
have  the  Governor  the  commander-in—chief 
of  the  militia,  when  particularly  called 
on  to  defend  our  rights,  but  not  at  the  same 
time  the  commander  of  the  100,000  United  States 
troops  that  might  be  sent  here.  He  trusted  the 
section  would  not  be  stricken  out.  He  believed 
this  in  his  best  judgment  to  be  best  for  the  inter- 
ests of  the  people. 

Mr.  JORDAN  was  opposed  to  striking  out  the 
section ;  for  he  proposed  to  offer  an  amendment 
which  should  read  thus : 

"  Neither  the  Governor  nor  Lieut.  Governor  shall  hold 
any  other  office  ot  profit  or  emolument,  or  military  com- 
mand under  this  or  any  other  state  ur  foreign  government; 
the  acceptance  by  either  of  any  such  office  or  command 
shall  vacate  his  said  office  ot  Governor  or  Lieut.  Governor.', 

It  was  objected  that  it  would  be  proper  that  the 
Governor  should  hold  such  an  office  as  that  of 
Regent  of  the  University  or  any  other  where  no 
emolument  and  only  honor  could  accrue.  His 
amendment  would  steer  clear  of  that  objection. — 
There  were  other  objections  which  he  thought 
were  obviated  by  his  amendment.  He  would 
only  be  commander  of  the  militia  of  the  State  as 
before. 


Mr.  PATTERSON  preferred  this  amendment 
to  any  other  that  had  been  offered;  that  is,  if  we 
considered  it  necessary  to  retain  any  thing  of  the 
kind,  as  reported  by  committee  No.  5  ;  it  would 
conflict  with  the  report  of  the  committee  No.  6, 
of  which  the  gentleman  from  Otsego  (Mr.  CHAT- 
FIELD)  was  chairman.  He  thought,  however, 
some  modification  might  be  necessary ;  for  if  the 
Governor  and  Lieut.  Governor  were  to  hold  no 
office  of  trust,  honor  or  profit,  the  Lieut.  Gover- 
nor would  not  be  able  to  act  with  tlie  Speaker  of 
the  Assembly,  Comptroller,  Secretary  of  State, 
Treasurer,  and  Surveyor  General,  as  Commission- 
ers of  the  Land  Office  ;  nor  would  he  be  able  to 
act  with  the  Secretary  of  State,  Comptroller, 
Treasurer,  and  Attorney  General,  as  Commission- 
ers of  the  Canal  Fund.  He  contended  that  it 
would  not  answer  to  adopt  the  provision  proposed 
by  committee  No.  5,  and  then  adopt  those  propo- 
sed by  committee  No.  6.  The  Lieut.  Governor, 
for  many  years,  had  been  one  of  the  commission- 
ers of  the  canal  fund  ;  he  was  also  one  of  the  ca- 
nal board,  as  a  matter  of  course,  and  likewise  of 
the  land  office.  If  then  they  were  to  retain  any 
thing  of  this,  it  seemed  to  him  the  amendment  of 
the  gentleman  from  Columbia  would  be  prefera- 
ble ;  but  it  would  be  necessary  to  make  some  fur- 
ther amendment  even  in  that. 

Mr.  SWACKHAMER  said  members  talked  as 
though  the  person  who  happened  to  be  elected 
Governor  was  the  only  one  fit  to  discharge  the 
duties  of  an  office  in  the  several  literary  and  be- 
nevolent institutions  of  this  State.  He  was  op- 
posed, from  high  considerations  of  principle,  to 
the  Executive  holding  any  office  or  trust,  not 
strictly  compatible  with,  and  necessary  to,  the 
faithful  discharge  of  the  duties  of  that  important 
station.  He  would  not  deny  but  that  there  are 
institutions  of  learning  and  benevolence  in  this 
State  which  stand  as  proud  monuments  to  the 
generous  and  enterprising  spirit  of  our  citizens. 
Neither  could  it  be  denied  but  that  many,  exclu- 
sive in  their  character,  had  grown  fat  on  dona- 
tions made  from  the  money  of  the  masses,  by- 
partial,  if  not  corrupt,  legislation  ;  while  other 
institutions,  equally  meritorious,  could  not  get 
one  cent  from  the  State,  and  our  common  schools 
had  been  neglected.  If  it  should  be  found  im- 
practicable, which  he  very  much  doubted,  to  take 
from  government  the  power  to  make  special  ap- 
propriations for  the  purposes  alluded  to,  then  he 
would  remove  as  far  as  possible  the  temptation 
from  the  Legislature  and  the  Governor.  The 
Executive  was  liable,  like  all  other  men,  to  be- 
come biassed  in  favor  of  those  with  whom  he  as- 
sociated, and  who  have  done  him  the  most  honor, 
by  appointments  to  places  of  distinction  or  other- 
wise. In  relation  to  holding  office  under  other 
governments,  he  was  also  opposed  to  that.  "  No 
man  could  serve  two  masters."  In  reply  to  the 
charge  of  inconsistency,  to  which  some  might 
consider  him  obnoxious,  in  occupying  a  seat  in 
this  Convention,  under  the  circumstances,  he 
would  merely  say  that  it  was  a  matter  about  which 
his  judgment  was  not  consulted  by  the  people  or 
Kings  county.  It  was,  none  the  less,  a  false 
principle — it  had  proven  injurious,  and  even  de- 
structive, to  ancient  republics,  and  therefore 
should  be  guarded  against  in  our  own. 

Mr.  W.    TAYLOR  said   that  this    would  not 


313 


prohibit  him  from  holding  any  other  office  of 
honor  or  trust  only ;  but  it  would  from  any 
one  of  profit  or  emolument  in  this  or  any 
other  State.  Now  gentlemen  were  evi- 
dently mistaken  in  supposing  that  anything  was 
drawn  from  the  treasury  for  literary  institutions 
of  which  the  Governor  is  ex-officio  trustee.  He 
thought  the  gentleman  from  Genesee  (Mr.  RICH- 
MOND) would  find  it  difficult  to  point  out  any  one 
which  the  Governor  had  recommended,  of  which 
he  wus  trustee.  The  office  of  the  Governor  in 
those  institutions  was  advisory,  but  he  had  never 
come  here  and  recommended  appropriations  for 
their  benefit;  and  the  Governor  might  advanta- 
geously retain  a  position  in  which  he  could  give 
salutary  advice  to  those  institutions.  He  would 
favor  the  proposition  of  the  gentleman  from  Co- 
lumbia so  far  as  to  prevent  the  Governor  from 
receiving  any  appointment  under  the  General 
Government,  whether  of  trust,  honor,  or  profit, 
but  not  so  in  regard  to  this  State.  And  in  the 
case  supposed  by  the  gentleman  from  Orange  (Mr. 
BROWN)  he  thought  the  Governor  might  be  use- 
fully employed,  and  consistently  with  the  char- 
acter of  the  Governor.  With  regard  to  this  state, 
he  thought  the  Executive  should  hold  no  other 
office  of  profit  or  emolument,  but  a  trust  or  post 
of  honor  he  would  not  prohibit. 

Mr.  RICHMOND  :  The  gentleman  from  On- 
ondaga  (Mr.  W.  TAYLOR)  says  that  we  have  no 
evidence  of  the  governor  ever  coming  here  to  the 
legislature  and  recommending  appropriations  for 
these  colleges  and  other  institutions. 

Mr.  W.  TAYLOR  :  Not  as  a  trustee  of  any  of 
them.  He  had  never  made  such  recommenda- 
tions as  trustee.  Generally  in  his  capacity  as 
governor,  he  doubtless  did  recommend  institu- 
tions to  favor  for  the  welfare  of  the  state. 

Mr.  RICHMOND :  Not  as  trustee?  He  agreed 
with  the  gentleman  that  the  governor  has  never 
done  so  as  a  trustee.  He  would  accept  that  ex- 
planation. He  would  not  be  so  imprudent  as  to 
do  this.  But  the  recommendation  of  the  gover- 
nor, without  saying  that  he  was  a  trustee,  would 
have  great  weight  with  the  legislature  and  be 
very  apt  to  carry  a  bill  through.  He  would  keep 
back  the  fact  that  he  was  a  trustee,  lest  it  should 
excite  suspicion.  If  he  were  a  shrewd,  calculat- 
ing man  he  would  keep  it  back  so  that  it  might 
have  more  weight.  But  suppose  the  governor  did 
not  make  any  recommendation  of  appropriation ; 
still  gentlemen  made  propositions  to  appropriate 
thousands  of  dollars  to  these  higher  seminaries  of 
the  money  belonging  to  all  the  people,  and  which 
should  go  to  sustain  the  free  and  common  schools 
— and  governors  had  been  and  might  again  be- 
come members  of  the  legislative  body — and  if  it 
was  referred  to  him  to  sanction,  could  he  act  upon 
it  as  an  independent  man  ?  When  such  a  mea 
sure  too  was  put  into  his  hands  to  sign  as  gover- 
nor he  might  sign  it  when  he  ought  to  have  put 
his  veto  on  it.  No  governor  would  even  venture 
to  reject  such  a  bill  after  he  had  recommended 
it.  If  the  veto  power  were  lodged  in  the  gover- 
nor, it  was  necessary  that  he  should  be  untram- 
melled to  act,  without  being  subjected  to  the  in 
fluence  that  would  be  thrown  around  him  in  con- 
sequence of  being  a  trustee  of  one  of  these  insti- 
tutions. Mr.  R.  would  not  charge  corruption  on 
the  present  governor  nor  on  any  past  governor 

20 


or  he  believed  they  had  generally  acted  as  other 
men  would  act.  But  there  had  been  great  abuses 
of  the  public  money  carried  out  through  this  sys- 
tem. Mr.  R.  did  not  charge  any  bad  motives 
upon  any  governor  but  he  would  ask  what  man 
there  was  who,  were  he  governor  would  be  like- 
ly to  resist  a  bill  passed  for  the  benefit  of  an  in- 
stitution of  which  he  was  trustee,  especially  when 
there  was  as  is  always  the  case  a  great  array  of 
talented  men  to  back  up  the  application. 

Mr.  HOFFMAN  said  as  to  the  substance  of  the 
clause  as  reported  it  was  very  desirable  that  it 
should  be  embodied  in  the  Constitution  ;  but  it 
seemed  to  him  that  the  amendment  of  the  gen- 
tleman from  Columbia  (Mr.  JORDAN)  did  not 
reach  the  object  in  the  most  unexpectionable  and 
best  manner.  He  desired  that  the  Governor  and 
Lieut.  Governor  should  hold  no  office  from  any 
other  State  or  government ;  no  office  whatever  ; 
of  any  kind  or  description.  A  Governor  of  this 
State  should  allow  that  office  alone  to  be  sufficient 
to  satisfy  his  ambition — whilst  he  was  governor 
that  alone  was  honor  enough  and  ought  to  be  suf- 
ficient to  fill  his  mind  with  care  and  to  occupy  all 
his  time  and  solicitude  ;  and  he  hoped  the  gentle- 
man from  Columbia  would  amend  his  amendment 
while  it  was  in  his  power,  so  as  to  exclude  those 
two  officers  the  Governor  and  Lieut.  Gov.  from 
holding  any  other  office  under  any  other  govern- 
ment whatever.  He  himself  was  here  now  hold- 
ing office  under  the  people  of  the  State  while  he 
was  a  public  functionary.  But  if  in  drawina,  up 
the  Convention  act  every  federal  functionary  had 
been  excluded,  where  would  have  been  the  harm? 
There  would  have  been  no  injury.  No  gentle- 
man here  would  have  regarded  that  as  an  injury  ; 
he  would  have  resigned  his  place  and  come  here, 
for  it  was  only  once  in  a  long  life  time  that  a  man 
could  participate  in  the  proceedings  of  a  body 
like  this,  and  therefore  such  a  restriction  would 
not  have  excluded  any  man  who  was  fit  to  hold  a 
seat  there.  And  he  held  that  no  man  who  would 
not  resign  his  post  under  the  general  government, 
if  necessary,  to  come  here,  or  that  would  not 
come  here  to  serve  the  people  of  his  State,  des- 
pite his  federal  obligations,  was  not  fit  to  be  a 
delegate  to  this  Convention.  He  repeated  then 
that  he  hoped  the  gentleman  from  Columbia 
would  so  amend  his  amendment  as  to  exclude 
these  two  officers  from  holding  any  office  under 
the  federal  or  any  other  government  charter. — 
That  could  be  done  by  a  slight  alteration.  Some 
gentlemen  however  seemed  to  be  exceedingly 
anxious  to  exclude  the  Governor  and  Lieut.  Gov. 
from  the  administrative  offices  or  boards  of  the 
State.  Now  as  soon  as  they  did  that,  they  would 
defeat  the  end  those  gentleman  had  in  view.  If 
their  Governor  had  always  been  more  intimately 
related  to  the  finances  of  the  State,  if  he  had  al- 
ways been  in  these  boards,  they  would  have  been 
less  in  debt  by  many  millions.  If  he  had  been 
a  commissioner  of  the  canal  fund,  like  every  oth- 
er man  who  had  been  put  into  that  commission, 
he  would  have  stood  for  the  interest  of  the  whole 
state  against  the  interest  of  localities.  Ifthegov- 
ernor  had  been  more  intimately  connected  with 
the  finances,  he  would,  as  the  Comptroller  had 
uniformly  done,  have  stood  against  the  claims  of 
localities,  and  solicitations  from  literary  and 
charitable  institutions.  And  it  has  been  their 


314 


misfortune,  not  that  their  governor  had  been  too 
intimately  connected  with  the  finances  of  the 
State,  but  that  he  had  not  been  sufficiently  con- 
nected with  them.  If  you  will  entirely  and  utter- 
ly separate  your  Govemorand  Lieut.  Gov.  from  all 
connection  with  any  office  in  our  own  or  any  other 
State,or  the  United  States,  or  any  foreign  govern- 
ment then  you  can  make  the  office  in  regard  to  this 
state,  or  the  clause,  just  as  you  please.  If  the 
gentleman  from  Columbia  would  amend  his 
amendment  so  as  to  provide  a  general  disqualifi- 
cation, he  should  be  glad.  He  would  submit  to 
the  Convention  the  propriety  of  making  the  Gov- 
ernor and  the  Lieut.  Governor  commissioners  of 
the  canal  fund,  trustees  of  your  school  fund,  and 
your  colleges,  and  otherwise  connect  him  with 
the  state  finances,  the  distribution  of  its  gifts  and 
charities,  and  its  donations  to  colleges  and  aca- 
demies. He  ought  to  be  most  intimately  acquaint- 
ed with  all  your  financial  matters  throughout  the 
state,  and  inspect  them  frequently.  He  would 
much  rather  that  the  Governor,  from  his  station, 
was  compelled  to  look  after  the  public  funds,  and 
guard  against  improper  gifts  and  charities  anddo- 
nations,than  that  he  should  stand  with  folded  arms, 
causually  looking  over  the  ground,  without  know- 
ing how  many  evils  had  grown  out  of  their  admin- 
istration. He  would  make  that  matter  part  of  his 
duty  as  Governor,  to  participate  in  the  adminis- 
trative boards  of  the  state;  unite  both  the  Gov- 
ernor and  Lieut.  Governor  more  closely  with  your 
administrative  boards,  financial  and  otherwise, 
and  you  add  greatly  to  their  usefulness,  and  en- 
sure to  a  much  greater  extent  the  welfare  and 
prosperity  of  your  state, 

Mr.  JORDAN  said  that  he  acceded  to  the  pro- 
position of  the  gentleman  from  Herkimer,  (Mr. 
HOFFMAN,)  but  as  to  the  other  branch  that  we 
should  not  let  the  Governor  hold  any  other  office 
of  honor  or  trust  under  this  State  government, 
there  was  evidently  a  great  difference  of  opinion. 
This  he  would  not  accede  to ;  but  would  take  the 
sense  of  the  Convention  on  his  propositions  as  it 
stood.  He  would  modify  his  amendment  so  as  to 
meet  the  views  of  the  gentleman  from  Herkimer. 

Mr.  WARD  would,  with  the  permission  of  the 
gentleman  from  Columbia,  (Mr.  JORDAN,)  send 
up  an  amendment  that  would  answer  every  pur- 
pose: 

Neither  the  Governor  nor  Lieutenant  Governor  snal 
bold  any  other  office  of  profit  or  emolument,  or  military 
command  under  this  or  any  other  State  or  Government 
except  the  Lieutenant  Governor  shall  ex-oflicio  be  or  re- 
main a  commissioner  of  the  land  office,  or  commissioner  o 
the  canal  fund,  and  a  member  of  the  canal  board.  The  ac 
ceptance  by  either,  of  such  office  or  command,  shall  ra 
cate  his  said  office  of  Governor  or  Lieutenant  Governor. 
Mr.  WARD  said  there  ought  to  be  some  altera 
tion  in  relation  to  the  Governor's  military  com 

Mr.  JORDAN  said  if  he  understood  the  gentle 
man  from  Herkimer,  (Mr.  HOFFMAN,)  that  gen 
tleman  desired  that  neither  the  Governor  nor  th< 
Lieutenant  Governor  should  hold  any  office  of  ho 
nor,  profit,  emolument  or  trust,  under  the  genera 
government. 

Mr.  HOFFMAN— Under  any  government,  bu 
that  of  this  State. 

Mr.  JORDAN  had  no  objection  to  that,  and  i 
could  be  easily  provided  for  by  introducing  tw< 
or  three  words.  In  respect  to  the  amendmea 


roposed  by  another  delegate,  he  could  not  assent 
o  it.  He  would  let  his  amendment  stand  as  it 
was,  after  making  it  conform  to  the  views  of  the 
'entleman  from  Herkimer.  Mr.  J.  then  sent  up 
vis  amendment  so  altered  as  to  permit  the  Lieu- 
enant  Governor  ex  qfficio  to  be  a  commissioner 
»f  the  land  office,  a  commissioner  of  the  canal 
und,  and  a  member  of  the  canal  board.  This 
[id  away  with  the  necessity  of  Mr.  WARD'S 
mendment ;  he  inserted,  "  or  any  other  office  of 
>rofit,  honor,  trust  or  emolument,  under  any 
ther  government." 

Mr.  SIMMONS  said  that  there  were  certain 
ffices  in  this  State  which  the  Governor  ought  to 
>e  excluded  from  ;  and  certain  others  which  he1 
tught  not  to  be  ;  our  sister  States  have  shadowed 
hese  out,  and  he  greatly  wondered  we  had  not 
ot  them  in  ottr  constitution.  He  read  a  clause 
rom  the  New  Hampshire  constitution,  and  said 
le  could  see  there  had  got  to  be  a  little  more  re- 
lection  on  this  section,  although  he  was  inclined 
o  agree  mainly  with  the  gentleman  from  Herki- 
mer (Mr.  HOFFMAN.)  But  it  was  evident  they 
must  distinguish  between  two  things;  they  must 
ender  the  Governor  incapable  of  holding  any 
>ffice  whatever  under  any  other  State  or  the  Uni- 
ed  States;  and  then  there  were  a  certain  class  of 
>ffices  from  which  he  should  be  excluded  in  this' 
State.  You  must  exclude  him  from  any  other  ju- 
dicial or  legislative  office,  and  leave  the  rest  to* 
the  people.  You  must  preserve  a  general  divi- 
sion of  Executive,  legislative  and  general  duties,, 
)ut  he  thought  the  Executive  should  not  be  alto- 
gether separated  from  the  administrative.  He 
would  point  to  the  Erie  Canal  as  one  fruit  of  the 
abor  of  De  Witt  Clinton,  apart  from  his  Execu- 
ive  duty.  Look  at  that  great  work,  and  say  if 
the  Governor  should  be  excluded  from  all  ?  He 
said  what  he  had  heard  recently  would  seem  to 
show  that  they  were  trying  to  see  if  they  could 
not  have  a  sort  of  constructive  nobility  here — a* 
sort  of  nominal  Governor,  who  was  to  stand,  dis- 
connected with  the  business  and  interests  of  the 
State,  with  his  arms  folded,  looking  on  like  a 
sentinel,  and  let  this  constructive  nobility 
do  all  the  work.  There  was  so  much  out- 
cry and  horror  against  centralization,,  that  he 
did  not  see  that  there  was  any  thing  to  be  left  for 
the  Governor  to  do;  though  he  had  supposed  that 
the  people  when  they  elected  a  Governor,  did  it 
on  account  of  his  qualifications  of  some  kind, 
and  that  they  thought  they  ought  to  have  the  ad- 
vantage of  them.  He  wanted  to  have  the  Gover- 
nor's influence  and  skill  brought  to  bear  on  the 
various  administrative  departments,  and  great 
utility  would  be  found  to  follow  therefrom,  for  the 
Governor  would  become  acquainted  with  all  these 
matters  in  detail.  He  had  confidence  enough  in 
a  Governor  for  this  and  all  proper  administrative 
duties.  The  connection  of  the  Governor  with 
these  things  would  give  a  moral  weight  and  pow- 
er, for  there  was  something  besides  the  mere  co- 
ercion of  law  and  force  necessary  to  have  a  gov- 
ernment go  on  well.  He  regretted  much  to  see 
here  the  members  of  this  Convention  set  the  ex- 
ample, by  way  of  approving  of  the-  exclusion  of 
public  men  from  coll eges-&c., -giving  countenance 
to  the  idea  that  Governors  and  Supreme  Court 
Judges,  and  other  high  functionaries,  should 
not  be  patrons  of  learning.  It  reminded  him  of 


315 

a  speech  said  to  have  been  made  recently  in  Con- 1  precisely  the  causes  which  during  the  last  war 
a  which  a  gentleman  there  said  he  hoped  induced    the    U.  S.  Government    to  confer  the 
use  would  not  hold  him  responsible  for  command  of  its  troops  upon  the  Governor  of  this 
being  born  in  Vermont ;  and  that  he  was  opposed   State.    He   had  expected  that  other  gentlemen 
to  receiving  the  Smithsonian  bequest,  because  it  in  the    Convention    better  acquainted  with  the 
was  anti-democratic,  and  he  added  that  he  well  military  relations  then  existing  between  us  and 
remembered  how  much  trouble  it  cost  him  to  get  the  United  States,  would  have  opposed  the  adop- 
rid  of  the  little  education  he  had  before  he  could  tion  of  the  provision  now  before  the  committee, 
be  purely  democratic.     He  hoped  they  had  no   or  given  reasons  why  it  should  not  be  adopted 
such  men  here ;  he  believed  there  were  none.         by  the  Convention.       He  recollected    however, 
Mr.  J  ORDAN  then  read  his  amendment  as  mo-   that  there  were  controversies  between  the  mili- 
dified^     "  Or  any  office  of  profit  or  emolument,  tia  and    the  army  officers    during  the  last  war. 
except  that  of  Governor  and  Lieut.  Governor  of  It    was  found    expedient,  on    the    part    of  the 
this  State."  United    States  to   invest    the    Governor  of  this 

Mr.  W.  TAYLOR  wished  to  strike  out  from  State  with  a  Major  Generags  command,  and 
after  "  or  any  of  office  of"  the  words  profit  or  he  ventured  to  say  that  no  act  of  the  United 
emolument."  It  had  been  usual  to  connect  the  States  Government,  was  more  heartily  ap- 
Lieutenant  Governor  with  the  administrative  de-  proved  in  the  whole  course  of  the  war  than 
partment,  particularly  the  canal  fund-,  and  if  he  that  act  was  by  the  people  of  this  State. — 
travelled  to  meet  the  canal  board  it  was  proper  The  defence  of  the  city  of  New  York  on  the 
that  he  should  be  paid  for  it.  The  amendment,  south  was  immediately  made  more  secure.  He 
therefore,  required  further  amendment.  No  one  was  made  Major  General  of  the  U.  S.  army,  and 
could  object  to  this  as  a  matter  of  justice.  the  northern  frontier  was  immediately  rendered 

Mr.   RUGGLES  understood   that  this  amend-   more  secure,  and  public  confidence  was  immedi- 
inent  disqualified  the  Governor  of  this  state  from   ately  restored  in  the  capacity  of  the  state  for  self- 
taking  command    of  the  U.  S.  troops  in  time    of  defence,  by  the  measures  he  took.     In  the  event 
war.     Now  he  could  not  but  think  the  commit-   of  another  war  with  England,  the   militia  force 
tee  would  act  unadvisedly  and  unwisely  in  a-   to  be  immediately  raised  would  be  very  large,  not 
dopting  a   provision  which  was  to  have  that  ef-   only  for  the  city  of  New  York,  but  for  the  long 
feet.     It  originated  in  a  jealousy  that  had  no  real  line  of  the  Canada  frontier,(far  exceeding  any  U. 
foundation,  of  the    Executive,  who  was  chosen   S.  force  to  be  sent  here,)  and  for  the  purpose  of 
by  the  people    for  a  short  period.       Before  they  securing  the  united  and  concerted  action  of  the 
adopted  such  a    provision,  it  might  be  necessary   State  and  United  States  forces,  it  will  be  iadis- 
to  recur  back   to  the  transactions    which    took   pensably  necessary  to  put  both  under  one  com- 
place  in  the  late  war   with  Great  Britain— and  mand.     Now,  he  asked  where  is  the  danger  of 
to  advert    to  the  possibility  that  we  might  have   giving  this  command,  as  was  done  during  the  last 
another  war  hereafter,  or  before  long.     He  hop-   war,  to  our  own  Governor  ?    Is  the  power  and  in- 
€d  there  would  not ;  ^but  there  might  be  ;    and  fluence  of  the  United  States  government  more  to 
-we  have  a  long   frontier  on  the  north,  and    we  be  feared  when  our  chief  magistrate  shall  have 
find    the    British    Government   fortifying  their  the  command  of  its  troops,  than  when  that  go- 
side   of  it  from  end  to  end.      Every  act  of  that  vernment  commands  ours  ?     We  must  either  put 
power  indicates  an    expectation    that  an  occur-   the  militia  under  U.  S.  officers,  or  else  the  U.  S. 
rence  of  that  kind  will  take  place  at    some  time   troops  must  come  under  the  command  of  our  Go- 
hereafter,  and  we  therefore  ought  to  act  in  refer-   vernor ;  or  there  will  be  a  divided  action  ;  and 
ence  to  the  possibility  of  such  an  event.       Nay   our  militia  will  never  act  in  concert  with  the   U. 
we  ought  not  to  forget  that  it  was  not  only  a  pos-   S.  troops  unless  they  consent  to  serve  under  U 
sible  event,    but  we    ought  to  act    as  though  we   S.  officers ;  and  where  is  the  danger  more  likely 
regarded  it  as  a  certain  event,  at  some  future  pe-   to  arise?     It  seemed  to  him  that  there  were  mis- 
nod.     How  then  should  we    be  situated  in  case   taken  views  and  unfounded  jealousies  on   this 
of  a  war  of  that  kind  ?    He   always  supposed  at  subject : — that  this  disqualification  might  weaken 
the  commencement  of  a  war,  that  this  state  must  the  power  of  the  state  in  an  emergency  when  ifcj 
take  care  of   itself.       It  may  be    necessary   she   strength  would  be  most  needed.  He  had  not  risen 
should  take  care  of  herself  all  through.       She  in  the  confident  expectation  of  changing  the  opin- 
may  be    compelled  to  do  so.       This  is   a  border  Ions  which  the  committee  seemed  at  present  to 
state,  and  it  might  be  compelled  to   take  care  of  entertain,  but  he  hoped  the  provision  would  not 
itself.     When  the  last  war  occurred,  the  United  be  adopted  now  in  committee.     For  great  danger 
States  was  weak  on  the  frontier;    and  the  state   to  this  State  may  arise  unless  we  choose  to  allow 
and  the  United    States    were   unprepared;    and  our    Governor    to    take   command  of  the  U.  S. 
this  state   was  driven  to  self  protection,  though   troops  here  in  time  of  war.     If  it  should,  he  still 
she  also  at  that  time    was  unprepared.      If  -such   hoped  that  the  members  of  the  Convention  might 
an   event    should    ever    occur    again,  whatever   be  satisfied  of  its  impropriety  when  they  come  to 
might    be  our   condition  in    preparation  and  re-   reflect  on  it  more  before  they  passed  upo"n  it  in  the 
sources,  a  unity  of  action  between  this  state  and   House. 

the  United  States  government  would  be  highly  Mr  W.  TAYLOR  said  that  the  apprehensions 
important;  and  nothing  ought  to  take  place  in  of  the  gentlemen  were  unfounded.  To  place 
this  Convention  which  should  lead  to  separate  United  States  Troops  under  the  command  of  the 
and  discordant  action.  Both  should  act  through-  Governor  of  this  State  in  time  of  war,  would  not 

out  with  a  thorough  unity  of  action.       There  is  be  conferring  a  new  appointment  upon   him. 

nothing  in  the  fundamental  law  to  prevent  a  The  objection  therefore  was  not  valid.  He  was 
unity  of  action.  He  was  not  prepared  to  state  I  of  opinion  that  a  Governor  exercising  the  com- 


316 


inand  over  any  troops  of  the  United  States  whic 
might  be  placed  under  his  command  by  request  c 
the  general  government,  would  be  only  exercis 
ing  his  functions  as  Governor  of  the  State  o 
New  York.  It  would  be  no  new  commission;  n 
new  command ;  no  violation  of  the  provisio 
proposed  to  the  Convention  by  Mr.  JORDAN  •  n 
new  appointment,  to  ask  the  Governor  of  thi 
State  to  command,  together  with  the  militia,  sue 
troops  as  might  be  placed  under  his  control,  ] 
it  be  not  a  new  office,  then  he  can  command  thes 
troops,  and  there  is  no  fear  of  the  restriction. — 
This  is  in  the  Constitution  of  other  States.  An 
yet  that  was  the  only  objection  which  had  bee 
urged  against  the  Jfc-ohibition  of  his  receiving  ar 
appointment  from  the  United  States. 

Mr.  WARD :    Mr.  Chairman,  what  is  the  ques 
tion? 

The  CHAIR  said  there  was  so  much  noise  made 
by  members  that  it  was  impossible  to  transac 
business.  The  question  is  on  striking  out. 

Messrs.  WARD  and  TALLMADGE  spoke  on 
this  question. 

Mr.  KEMBLE  said  that  no  one  ever  had  o 
could  doubt  the  patriotism  of  Daniel  D.  Tomp 
kins.  But  the  question  now  is  whether  his  as 
sumption  of  the  course  he  took  was  necessary  at 
the  time  ;  and  if  it  was  necessary  by  reason  of  a 
difficulty  then,  that  difficulty  and  necessity  may 
occur  again.  He  hoped,  therefore,  that  nothing 
would  be  done  to  prevent  the  governor  from  per- 
forming such  a  duty  hereafter. 

Mr.  SIMMONS  thought  it  would  be  much 
wiser  to  expunge  the  whole  of  the  article ;  and 
come  back  to  what  it  was  in  the  old  Constitution. 
Mr.  SWACKHAMER  said  that  as  one  good  turn 
deserved  another,  it  was  his  purpose  to  say  a  word 
in  explanation  ot  this  matter.  He  would  leave 
the  gentlemen  from  Herkimer  ar  d  Essex  to  set 
tie  their  differences  among  themselves  The  gen. 
tleman  from  Essex  goes  away  off  to  Congress  to 
show  that  a  man  had  a  little  too  much  education 
to  be  a  democrat  He  (Mr.  S.)  believed  there  was 
as  much  enlightenment  and  talent  required  to 
make  a  democrat  as  any  other  creed. 

Mr.  SIMMONS:  It  requires  more  than  any 
other. 

Mr.  SWACKHAMER  was  in  lavor  of  the  most 
wide  spread  and  extensive  education,  but  it  was  a 
question  with  him,  whether  the  support  of  the 
exclusive  institutions — the  colleges  and  academies 
— were  so  beneficial  to  ihe  public  good,  as  tore- 
quire  the  whole  patronage  of  the  State  to  the  in- 
jury of  the  general  interests.  Whether  it  was 
better  to  educate  a  man  in  the  notions  of  King 
Jame3,  Blackstone,  or  Peters'  reports,  he  would 
leave  for  the  gentleman  to  say. 

Mr.  STETSON  could  see  force  and  propriety  in 
the  argument  of  the  gentleman  from  Dutchess  and 
Orange  that  the  governor  should  not  be  disabled 
from  taking  command  of  the  U.  States  troops 
under  certain  circumstances.  It  might  perhaps 
safely  be  made  an  exception  in  order  to  avoid 
what  might  bean  inconvenience.  It  was  yester- 
day provided  that  while  thi  Governor  was 
out  of  the  State  he  should  cease  to  be  Gov- 
ernor, yet  that  he  should  retain  command  of  the 
militia.  Now  in  the  event  of  an  insurrection 
in  an  adjoining  State,  and  the  Governor  should 
be  ordered  out,  it  might  be  necessary  that  he 


should  be  allowed  to  take  the  command  of  a  few 
U.  S  troops  in  addition.  He  concurred  with  the 
gentleman  from  Columbia  and  Herkimer,  most 
fully  in  the  great  principle  of  State,  sovereignty 
which  required  the  separation  of  the  State  offi- 
cers from  those  of  the  general  government.  And 
he  would  free  the  State  sovereignty  from  all  fed- 
eral patronage,  and  not  allow  it  to  be  controlled 
at  all  by  such  influence.  Particularly  should  this 
be  so  in  relation  to  the  Ex<?cutive,who  was  strict- 
ly  the  representative  of  the  sovereignty  ot  the 
State.  The  gentleman  from  Essex  fears  that  it 
will  deprive  him  of  the  right  to  exercise  certain 
duties  sometimes  imposed  by  acts  of  Congress. — 
Well  let  it  be  so,  if  H  would  have  that  effect. — 
Let  the  federal  power  provide  its  own  agents — 
but  do  not  amalgamate  the  system  of  federal  au- 
thority and  reserved  power  of  the  State.  The 
object  of  American  statesman  ever  had  been  to 
preserve  the  distinction. 

Mr.  SIMMONS  asked  if  the  gentleman  would 
go  the  full  length,  and  deprive  the  United  States 
of  their  privilege  of  using  the  subordinate  agents 
and  our  prisons  it  was  every  day  using. 

Mr.  STETSON  said  that  question  was  not  em- 
araced  in  this  proposition,  and  it  was  another 
question  which  he  would  meet  when  it  rose. — 
With  respect  to  the  judiciary  power  to  which  the 
gentleman  refened,  he  thought  the  gentleman 
would  find  it  laid  down  that  Congress  had  the 
right  to  confer  a  ministerial  power  upon  them. — 
fudge  Conklin,  in  one  of  his  decisions  in  which 
le  made,  surrendered  this  point,  previously  en- 
ertained  by  him,  and  he  was  sorry  to  see  the 
gentleman  from  Essex  the  last  of  that  guard  to  pre- 
serve it. 

Mr.  SIMMONS  referred  to  the  action  of  thesu- 
>reme  court  in  the  case  of  a  perjury  in  Kentucky, 
s  sustaining  his  position. 

Mr.  STETSON  said  that  was  before  the  deci - 
ion  of  Judge  Story — before  this  doctrine  was  ex- 
•lained  away. 

Mr.  TALLMADGE  said  that  in  regard  to  civil 
ppointmenf.  and  duties,  whenever  the  general 
overnment  saw  fit  to  employ  an  officer  of  the 
Itate  to  discharge  those  duties,  most  clearly  it  was 

distinct  appointment.  In  regard  to  military  du. 
ies  assigned  by  the  general  government  the 
atural  jealously  existing  between  State  rights  and. 
hose  o!  the  United  States,  produced  some  ariom- 
ly.  The  U.  S.  by  their  constituiion  was  well  as 
y  our  own,  have  the  right  to  call  out  to  take  part 
n  the  national  conflicts,  the  militia  of  the  State, 
ut,  the  Governor  would  not  be  accepting 
nother  office — he  would  stand  still  as  commander 
f  the  State  militia  and  not  as  an  officei  of  the 
eneral  government  He  hoped  with  the  expi- 
ation that  the  destinction  which  he  urged  would 
e  fully  understood.  It  would,  therefore  be  capa- 
le  (Mr.  T.)  urged  to  provide  that  the  Governor 
lould  accept  no  office  frcm  the  general  govern- 
ment, and  yet  still  retain  his  command  of  the 
tate  militia  even  in  the  service  of  the  U.  S. 

Mr  RUGGLES  said  that  the  Constitution  of  the 
r.  S.  provided  that  it  should  be  the  power  of 
ongress  to  provide  for  organizing,  arming,  and 
isciplining  the  militia,  and  governing  such  as 
}ay  be  employed  in  the  service  of  the  United 
tates,  reserving  to  the  States,  the  appointment 

officers,  &c.    We  had   agreed  by  the  Consti- 


317 


tution  to  place  our  militia  under  the  com  main 
of  the  Governor,  and  he  did  not  understand  tha 
the  Governor  would  have  any  authority,  except 
under  a  commision  from  the  U.  S.,  to  take  corn, 
mand  of  the  troops.  The  Government  had  not  beet 
willing  in  the  last  war,  it  was  not  likely  that  it 
would  be  any  more  hereafter,  to  place  their  troops 
under  any  command  except  of  the  officers  com- 
rnis>iioned  by  themselves.  The  reason  for  it  was 
that  they  were  disciplined  and  veteran  troops, 
while  ihtt  militia  were  not.  It  seemed  to  him 
that  the  question  was  this.  We  have  consented 
that  our  militia  shall  be  under  the  command  of 
the  U.  S.,  and  now  we  were  endeavoring  to  pre- 
vent the  U.  S.  from  putting  their  army  under  our 
comander  in  chief.  When  under  our  own  Gov- 
ernor, our  troops  were  under  the  command  of  a 
friend,  and  it  seemed  to  him  passing  strange  that 
we  should  pass  laws  by  which  the  troops  of  our 
own  State  when  in  sen  ice  of  the  U  S.  uhould  not 
be  put  under  the  command  of  our  State  officer. 

Mr.  NICHOLAS  said  that  our  troops  could 
be  put  under  the  command  of  the  Governor, 
as  such,  without  involving  the  necessity  for 
a  commission.  As  to  the  Governor,  except  in 
extreme  cases,  going  into  the  field  and  assu- 
ming the  active  command  of  the  military  forces 
in  the  time  of  war,  he  had  better  as  commander- 
iri-chiet,  devolve  this  duty  upon  an  experienced 
general.  But  if  it  becomes  necessary  for  him  to 
assume  the  command,  it  may  extend  to  United 
States  troops  without  conflicting  at  all  with  this 
restriction,  as  he  would  do  so  as  Governor  of  this 
State  and  our  commander-in-chiet,  and  not  under 
any  commission  from  the  United  States.  But  the 
Governor  vi  fhis  State  has  duties  enough  of  im- 
portance, witnout  discharging  the  duties  of  an  of- 
fice received  from  any  other  Governor  in  the  coun- 
try. In  regard  to  extending  the  restriction  within 
our  own  State  he  was  decidedly  of  the  opinion  that 
that  should  not  be.  A  Governor  may  have  served 
for  years  as  a  trustee  of  literary  and  benevolent 
institutions ;  and  there  was  no  good  reason  for 
compelling  him  when  elected  to  this  office,  to 
relinquish  such  trusts,  in  which  by  his  example 
he  may  still  exert  an  influence  beneficial  to  the 
community.,  and  such  a  restriction  in  his  (Mr. 
N.'s)  opinion  would  be  unnecessarily  infringing 
on  a  man's  personal  rights  and  privileges.  He 
would  not  permit  a  Governor  to  receive  any  office 
from  any  other  Government,  as  the  rights  and  in- 
terests of  the  State  should  not  be  liable  to  be 
blended  with  those  of  other  governments.  With 
this  modification,  Mr.  N.  was  in  favor  of  the  sec- 
tion. 

iVlr.  BASCOM  was  inclined  to  (he  opinion  that 
we  had  better  strike  out  .the  whole  of  the  section. 
Tne  history  of  our  own  country  was  somewhat  in- 
*  ructive,flo  far  as  concerned  the  striking  out  of 
that  part  of  it  in  relation  to  the  military  com- 
mand of  the  Governor.  At  the  darkest  period 
this  country  ever  saw,  except  in  the  revolution 
now,  an  officer  took  command  of  the  troops 
on  our  northwestern  frontier,  who  as  governor  of 
that  territory  commanded  one  portion  as  an  offi- 
cer of  the  general  government,  took  command  ot 
Jhe  United  Stales  troops,  and  as  maj.,r-general, 
appointed  by  the  state  of  Kentucky,  he  command- 
ed the  gallant  troops  of  that  state,  arid  led  them 
io  ihc'  most  exposed  position  on  our  frontier, 


turned  the  tide  of  war  from  our  own  borders,  and 
carried  it  into  I  he  enemy's  country,  and  captured 
the  first  British  army  during  the  last  war.  Mr. 
B.  referred  to  this  to  show  that  his  general's  suc- 
cess depended  on  his  three  commands,  or  different 
appointments,  in  order  to  possess  the  entire  con- 
fidence of  the  various  classes  of  troops.  Gentle  Jien 
might  talk  as  much  as  they  please  about  the  policy 
of  this  country  being  a  peaceful  one,  but  if  he  had 
read  aright  the  signs  of  the  times  we  had  enough 
already  on  our  hands.  What  meant  the  martial  nuu- 
sic  which  sometimes  even  disturbed  their  delibera. 
tions  there — and  these  expeditions  around  Cape 
Horn? — was  it  supposed  that  all  this  should  goon 
and  we  not  be  in  as  great  danger  of  a  war  as  in  1811. 
Was  it  supposed  that  the  world  would  calmly  look 
on, — did  it  do  so  now?  Mr.  B.  alluded  to  the 
movements  making  by  Great  Britain,  and  said  that 
it  was  the  note  of  preparation  for  a  war.  There 
was  in  the  public  mind  he  feared,  a  disposition  to 
rush  into  a  war  with  one  power  or  another.  We 
had  a  war  now,  and  he  very  much  feared  although 
not  carried  on  in  a  constitutional  manner  and  de- 
clared in  a  constitutional  'way,  that  it  was  sus- 
tained by  the  present  public  opinion  of  the  coun- 
try. If  not,  why  was  the  Executive  permitted  to 
plunge  the  country  into  it? — that  Congress  not 
daring  to  dec'are  war  itself,  declares  it  to  exist 
&C.  Under  these  apprehensions  he  was  unwil- 
ling that  we  should  be  placed  in  a  position  where 
the  commander-in  chief  of  our  state  force  could 
not  command  the  force  of  the  Union  that  might 
be  sent  to  our  aid,  as  Gov.  Tompkins  did  in  the 
late  war. 

Mr.  WATERBURY  felt  that  we  stood  here  as 
an  independent  republic,  with  great  internal  inte- 
resls,  and  he  held  the  services  of  the  Governor 
were  fully  needed  here.  Look  at  the  page  of  his- 
tory !  Would  it  not  have  been  better  for  France, 
if  Bonaparte  had  spent  his  life  legislating  for  the 
Benefit  of  his  country.  Would  it  not  have  been 
quite  as  well  for  the  State  of  New  York,  if  in  the 
last  war,  she  had  not  sent  her  own  Governor  off'at 
the  head  of  the  troops  f  The  services  of  the  Go- 
vernor in  a  population  like  ours,  of  3,000,000, 
were  always  needed,  and  he  would  not  have  him 
mour.t  the  first  horse  and  ride  off  to  the  wars. 
No— he  would  keep  him  at  home,  to  look  after 
he  home  interest.  If  so  much  power  was  to  be 
vested  in  the  Governor,  he  would  soon  be  in  the 
position  that  the  old  man  in  Dutchess  county  was, 
vho,  when  they  presented  a  paper  to  him  to  sign 
for  the  benefit  of  the  Gospel,  said  that  he  had 
more  than  twenty  kinds  of  business  on  hand,  and 
could  riot  attend  to  it 

The  question  was  then -taken  on  the  9th  section, 
and  it  was  stricken  out. 

Mr.  JORDAN  then  called  for  the  question  on 
iissubstituter  as  follows: 

Neither  the  Governor  nor  Lieutenant  Governor  shall 
hold  any  office  under  the  Government  of  the  United  States, 
>r-any  foreign  Government;  or  any  office  of  profit  oremo- 
ument,  (other  than  that  of  Governor  or  Lieutenant  Go- 
vernor) under  this  State.  The  acceptance  of  any  such 
>riice  shall  vacate  his  said  office  of  Governor  or  Lieute- 
nant Governor. 

Mr.   SWACKHAMER    moved  to    insert    the 

words  "  honor  and  trust,"  so  that  it  would  read, 

any  office  of  honor,  trust,  profit  or  emolument." 

Mr.  MANN  hoped  the  amendment  would  not 


318 


be  adopted,  as   it  would  only   have  the   effect  of 
bringing  the  section  back  where  it  started. 

Mr.  RICHMOND  hoped  it  would  prevail;  and 
while  up,  he  would  take  occasion  to  answer  the 
gentleman  from  Essex,  who  seemed  to  suppose 
that  education,  learning  and  science  were  gone 
unless  the  Governor  was  permitted  to  hold  these 
trusteeships.  He  had  not  so  much  distrust  of  the 
people  as  that— he  (Mr.  R.)  believed  that  all  those 
institutions  could  be  sustained  without  the  offi- 
cer of  dignity  to  back  them  up.  He  (Mr  R.)  de- 
nied that  those  who  opposed  this  section  were 
thereby  evincing  their  hostility  to  education.  He 
wanted  these  institutions  to  stand  on  their  owri 
merits.  The  Governor,  as  a  part  of  the  legisla- 
tive power,  if  associated  with  these  institutions, 
would  be  liable  to  be  swayed  as  against  the  peo. 
pie  in  their  connection  with  them.  They  were 
often  applicants  for  favor  from  the  legislature— for 
funds — and  the  Governor  would  not  be  likely  to 
act  upon  the  subject  with  that  unprejudiced  and 
impartial  irind  so  necessary  when  the  question  to 
be  decided  as  between  them  and  the  people,  was 
whether  they  should  have  a  large  appropriation  or 
not. 

Mr  PATTERSON  wished  the  committee  to 
understand  distinctly  that  this  amendment  if 
adopted,  would  prohibit  Ihe  Lieut.  Governor  from 
exercising  his  duties  heretofore  necessary  as  a 
member  of  the  Canal  Board,  and  of  the  Board  of 
Commissioners  of  the  Canal  Fund.  It  was  held 
by  some  that  no  man  should  hold  more  than  one 
office — now  these  two  boards  to  which  he  had  al- 
luded had  to  be  made  up  of  some  officers— if  those 
who  constituted  them  now  would  not  do,  then  a 
new  batch  would  have  to  be  provided.  He  saw 
no  objection  in  adding  these  duties  to  those 
that  were  now  specifically  devolved  on  the  Lieut 
Governor.  He  would  not  allow  these  officers  tt 
hold  any  office  under  the  general  Government  or 
that  of  any  other  State,  but  could  see  no  objection 
to  their  discharging  the  trusts  heretofore  im- 
posed upon  them  by  the  Jaw*  of  the  State.  As 
to  the  fear  that  the  institutions  with  which  he 
was  connected  would  be  sure  to  get  a  large 
appropriation  of  the  public  monies,  il  was  entire- 
ly groundless.  Ihe  appropriations  that  had 
been  heretofore  made  to  institutions  of  learning 
and  public  charities*  he  hoped  no  gentleman  here 
would  say  that  he  was  opposed  to.  Adopting  th 
principle  advocated  here  by  some  gentlemen,  anc 
the  Deaf  and  Dumb  Asylum,  the  Lunatic  Asylum, 
would  long  ago,  have  all  gone  by  the  board.  These 
appropriations  in  his  opinion  were  all  right 
every  one  of  them,  and  he  would  not  here  01 
elsewhere  attempt  to  prevent  the  Legislature 
from  making  them  for  such  beneficent  purposes 
There  was  no  danger  of  their  giving  too  much. 

Mr.  HOFFMAN  agreed  with  the  gentleman 
from  Kings  (Mr.  SWACKHAMER)  that  it  was  ex 
ceedingly  desirable  to  keep  thes*  h,igh  executive 
officers  from  being  officers  in  private  charities  or 
incorporations,  that  were  likely  to  come  to  the 
legislature  for  favors.  Andii  the  gentleman  would 
shape  his  amendment  so  as  to  secure  directly  that 
end  he  would  feel  great  pleasure  in  giving  his  vote 
for  it.  But  the  course  he  takes  on  this  occasion 
in  his  (Mr.  H.)  opinion  was  directly  against  the 
duty  of  the  Convention.  If  the  charities  were  prop- 
erly public  charities  under  public  management— 


t  it  were  right  to  have  them — to  endow  them 
>y  the  State — then  he  asked,  where  could  there 
be  constituted  a  better  officer  than  the  governor 
>f  the  Siate,  to  act  as  one  of  ihe  givers  ot  them — 
hat  he  may  be  in  a  situation  to  know  what  they 
cost,and  what  they  did  by  way  of  good,  and  that 

may  present  their  situation  before  the  country 
precisely,  in  his  annual  message.  But  in  relation 
o  Colleges,  Academies,  and  all  these  matters  of 
private  charities,  under  private  and  local  govern 
merit,  the  rule  was  directly  the  reverse.  He  ough- 
not  to  be  participator  in  their  local  government 
and  eome  here  by  message  and  recommend  iul 
vors  to  them.  But  if  the  charity  was  one 
proper  for  State  care,  then  he  submitted  the  gov- 
ernor and  lieutenant  governor,  were  the  persons 
to  be  made  governors  of  them  ex-officio — !o  guard 
and  care  for  ihe  interests  of  the  people.  To  adopt 
this  amendment  would  be  to  strike  at  these,  and 
leave  untouched  the  very  class  of  private  eorpo» 
rations  it  was  desirable  to  have  excluded.  He 
would  advise  the  utmost  caution  in  this  particular. 
He  had  no  objection  to  the  governor  serving  the 
State  in  all  cases  where' it  was  right  and  proper 
that  he  should.  He  did  not  see  but  that  he  would 
make  as  good  an  executive  officer  as  any  other, 
and  he  wished  that  the  legislature  might  be  able 
to  employ  him  for  such  purposes.  While  on  this 
subject,  he  would  be  allowed  to  say  a  wojd  that 
might  extend  this  debate.  You  have  State  Prisons 
and  probably  will  continue  to  have  them.  In  his- 
popr  opinion,  experience  would  compel  you  in  the 
end  to  make  your  governor  the  governor  of  the 
State  Prison,  and  to  confer  upon  him  the  appoint- 
ing power,  and  make  him  responsible  for  every 
thing  done,  arid  omitted  in  reference  to  them.  lie 
believed  that  this  would  be  your  condition  even- 
tually—and that  some  man  answerable  to  the 
whole  State,  and  chosen  by  the  whole  State,  will 
be  obliged  to  stand  personally  responsible  for  the 
performance  of  the  whole  administration  of  the 
State  Government  in  the  State  Prison.  And  he 
hoped  therefore  that  the  Constitution  might  not  be 
got  in  such  a  position  as  to  deprive  you  of  his  ser- 
vices. If  you  did,  you  would-  under  what  appear- 
ed to  him  to  be  the  inevitable  result,  be  obliged 
to  elect  as-other  governor,  responsible  tothe  whole 
people — to  receive  another  salary  and  to  divide 
the  duties  with  the  one  we  already  have — to  take 
charge  of  the  State  Prisons  as  an  especial  matter  of 
administration.  He  (Mr.  W.)  would  exclude  him 
from  being  an  officer  in  all  local  charities,  who 
came  here  for  favoys,  but  he  would  also  be  care- 
ful to  keep  him  as  a  servant  to  do  the  will  of  the 
people  who  elect  him,  in  the  discharge  of  those 
duties  where  an  administrative  officer  was  re- 
quired ;  and  which  he  could  discharge  better  than 
any  other  officer  that  could  be  selected,  and  which 
would  save  a  vast  expense. 

Mr.  MURPHY  concurred  in  the  views  of  the 
gentleman  from  Herkimer,  and  in  order  to  meet 
his  suggestions,  would  propose  the  following  a- 
mendment,  to  be  added  to  Mr.  JORDAN'S,  and  in, 
lieu  of  the  one  offered  by  his  colleague  : 

"  Nor  shall  they  be  appointed  by  virtue  of  their  office 
or  otherwise,  to  sny  place  in  any  corporation  or  in  any  in- 
stitution of  a  local  or  private  character." 

Mr.  SWACKHAMER  withdrew  his  amend- 
ment'all  he  wanted  to  secure  was  the  principle. 

Mr.  MURPH-Y  said  there  wece  tw&  kinds  of  of- 


319 


fices  which  the  Governor  was  allowed  to  hold, 
•which  did  not  strictly  apply  to  his  gubernatorial 
duties.  Those  in  relation  to  public  boards  and 
institutions,  it  was  proper  perhaps  to  retain.  But 
when  he  was  placed  in  such  private  corporations 
as  the  Sailors'  Snug  Harbor,  or  Union  College,  or 
any  other  local  body,  then  it  was  making  him  in 
some  measure  a  partial  officer,  and  although  he 
might  not  exert  a  positive,  yet  he  might  exert  a  ne- 
gative influence  in  favor  of*  such  institution,  to 
the  detriment  of  others.  To  this  he  was  opposed, 
and  he  would  prevent  it  by  the  constitution  and 
the  laws.  This  would  be  attained  by  the  adop- 
tion of  his  amendment,  and  which  would  also  per- 
fect the  amendment  of  the  gentleman  from  Co- 
lumbia. After  this  last  shall  have  been  done,  it 
would  then  be  a  question  to  determine  whether 
•we  should  or  not  have  any  restriction  on  the  sub- 
ject. 

Mr.  RHOADES  preferred  that  the  Governor, 
instead  of  being  excluded  from  being  trustee  of 
any  college,  should  be  a  trustee  of  all.  This 
would  do  away  with  any  suspicion  of  unfairness 
or  partiality,  and  would  make  him  feel  an  inter- 
est in  all  our  literary  institutions.  The  arguments 
of  the  gentlemen  from  Kings  and  Genesee,  if  they 
proved  anything,  proved  that  something  that  was 
already  engrafted  in  our  present  Constitution 
should  be  stricken  out  It  was  objected  that  the 
Governor,  if  a  trustee  of  a  college,  would  become 
fully  acquainted  with  it,  and  would  therefore  re- 
commend it  to  the  attention  of  the  Legislature. 
This  argument  would  go  to  show  that  the  Gover- 
nor should  be  kept  in  total  ignorance  of  every 
thing  that  was  passing.  A  section  had  been 
already  adopted  requiring  the  Governor  to  recom- 
mend annually  what  he  considered  for  the  wel- 
fare of  the  State.  Now,  Union  College  and  the 
other  institutions  were  portions  of  the  State.  And 
yet  gentlemen  would,  for  fear  he  should  be  biased, 
have  him  in  utter  ignorance  of  this  and  every 
other  matter,  until  the  bill  should  be  presented 
for  his  signature. 

Mr.  RICHMOND  said  that  if  he  understood  the 
argument  of  the  gentleman  from  Onnondaga  (Mr. 
RHOADES)  it  was  this.  That  the  governor  could 
not  understand  anything  as  to  the  wants  and  wish- 
es of  these  institutions  unless  he  was  an  officer  of 
them.  If  that  proved  anything  it  was  this  after 
jail,  that  these  institutions  were  but  secret  socie- 
ties whose  objects  were  not  known  to  the  public. 
He  should  never  vote  for  a  Governor  unless  he 
knew  enough  of  these  institutions  without  being 
a  trustee.  The  gentleman  says  he  would  make 
the  Governor  a  trustee  of  all  the  academies.  Why 
not  go  farther,  if  that  was  the  doctrine,  and  make 
him  a  trustee  of  every  school  district  of  the  State  ? 
Then  his  argument  would  hold  good.  The  holding 
up  of  the  idea  that  these  colleges  nd  academies 
should  receive  the  special  care  of  the  government 
and  that  nothing  should  be  done  for  common 
school  was  behind  the  intelligence  of  the  age. 
But  the  common  schools  wanted  no  such  trustee, 
they  could  take  care  of  themselves.  No  one  had 
ever  heard  the  trustee  of  a  school  district  coming 
down  here  and  lobbying  all  winter,  receiving  too 
a  salary  of  $1500  per  annum  from  the  people's 
money  and  applying  for  more  funds. 

Mr.  RHOADES  said  the  gentleman  misinter- 
preted or  misrepresented  his  argument.  He  did 


not  undertake  to  intimate  that  these  colleges  were 
secret  institutions,  and  therefore  needed  to  be 
looked  to  by  the  Executive 

Mr.  RICHMOND:  I  said  that  your  arguments 
seemed  to  carry  that  impression. 

Mr.  RHOADES  said  that  they  did  not  seem  or 
intend  to  carry  that  impression.  All  he  said  was, 
that  in  order  that  the  Governor  might  recommend 
such  measures  as  were  calculated  to  promote  the 
interests  of  the  Stale,  he  would  have  him  under- 
stand (he  interests  of  the  State  connected  with 
education,  as  well  as  every  other.  It  was  absurd 
to  suppose  that  the  Governor  should  be  a  trustee 
of  all  the  school  districts  in  the  State.  Mr.  R.  said 
that  to  De  Witt  Clinton,  and  the  course,  as  laid 
down  by  him,  pursued  by  subsequent  Governors, 
the  common  schools  were  indebted  foi  much  of 
their  prosperity.  He  was  desirous  that  these 
schools  should  receive  the  attention  which  they 
deserved,  and  such  favors  of  legislation  as  they 
were  entitled  to.  Nor  was  he  desirous  ot  allow- 
ing  the  colleges  and  academies  to  overshadow 
these  humble  institutions 

Mr.  RICHMOND  was  replying  to  Mr.  R.  when 

Mr.  NICHOLAS  rose,  and  said  that  he  must  !  « 
allowed  to  ask  whether  this  debate  was  in  order. 
If  the  whole  merits  of  the  Common  School  sys- 
tem was  to  be  discussed,  the  debate  would  never 
terminate. 

The  CHAIR  said  that  as  the  debate  had  al- 
ready taken  a  wide  latitude,  he  would  not  feel 
bound  to  arrest  it  now. 

Mr.  RICHMOND  continued  in  contending  that 
the  Common  Schools  had  not  received  thes->me 
advantages  as  had  the  highfer  institutions,  but 
rather  had  been  treated  disadvantageous^. 

The  question  being  taken  on  Mr.  MURPHY'S 
amendment  it  was  adopted,  47  to  42. 

Mr.  ,V.  TAYLOR  moved  to  add  after  the  word 
"State,"  the  words  "except  such  that  are  other- 
wise provided  for  in  the  Constitution."  Agreed 
to. 

Mr.  RUGGLES  oflered  the  following  further 
amendment : 

Nothing  in  this  section  contained,  shall  prevent  the 
Governor  from  taking  command  of  the  troops  of  the  U.  S. 
in  time  of  war,  or  case  of  invasion  or  insurrection,  under 
a  commission  from  the  United  States  or  otherwise. 

Mr.  SIMMONS  said  that  if  he  stood  alone  he 
must  say  a  word  on  the  adoption  of  this  amend- 
ment. It  would,  if  adopted,  exclude  the  adop- 
tion of  the  other  principle  that  the  powers  of  our 
State  officers  could  be  extended  to  such  ser- 
vices as  the  General  Government  might  consti- 
tutionally require  of  them.  Of  this  character 
were  the  execution  of  the  naturalization  laws  of 
Congress — the  pilot  laws,  and  many  others  of  a 
similar  character  He  could  see  no  evil  that  had 
or  would  result  irom  it,  and  the  courts  and  offi- 
cers could  only  exercise  those  duties  only  by  vir- 
tue of  an  appointment  from  the  General  Govern- 
ment. 

Mr.  TAYLOR :  How  do  they  now  do  it— as 
officers  of  the  general  government  of  the  State? 

Mr.  SIMMONS  said  that  th'^y  did  it  as  commis- 
sioners of  the  United  States — the  same  as  every 
inferior  officer  acted  under  his  superior. 

Mr.  TAYLOR  :  But  not  by  appointment. 

Mr.  SIMMONS:  Yes, by  appointment.  He  took 
it  for  granted  that  when  the  Executive  carried  out 
an  act  of  Congress,  be  did  it  by  authority  of  the 


320 


federal  government.  Under  this  section  he  ap- 
prehended the  governor  could  not  even  give  a  no- 
tice that  might  be  required  by  Congress 

Mr.  MORRIS  said  that  if  (he  services  ot  a  man 
who  was  governor  of  the  Slate  became  so  very 
essential  to  the  general  government,  wnv  it  would 
be  very  easy  for  him  to  resign,  and  a  man  could 
be  elected  to  take  his  place.  The  Constitution 
does  not  force  him  to  accept  either 

Mr.  DANA  had  looked  over  the  Constitutions  of 
some  of  the  other  States,  and  found  that  this  pro- 
position  was  not  peculiar,  or  a  new  one.  Just  as 
stringent,  and  in  several  instances  much  more 
stringent  provisions  of  the  kind  were  found  in 
the  Constitution  of  other  States.  Mr.  D.  quoted 
from  the  Constitutions  of  Ohio,  Vermont,  Louisi- 
ana, Alabama,  and  Arkansas  to  show  this. 

Mr.  DANFORTH  wished  to  enquire  whether 
it  was  in  order  to  move  a  reconsideration  of  the 
vote  by  which  the  amendment  of  Mr.  MURPHY 
was  adopted.  He  had  voted  to  strike  out  the  sec- 
tion reported  by  the  committee,  for  the  purpose 
of  securing  the  amendment  of  Mr.  JORDAN'S, 
which  he  considered  embarrassed  by  that  of  Mr. 
M.'s. 

The  CHAIR  said  the  motion  was  in  order  when 
the  one  pending  was  decided. 

The  amendment  of  Mr.  RUGGLES  was  adopted, 
ayes  49,  nays  not  counted. 

Mr.  DANFORTH  then  made  his  motion  for  a 
reconsideration.  He  would  prefer  to  have  the 
motion  laid  on  the  table  for  to-day. 

The  CHAIR  said  that  could  not  be  done  in  com- 
mittee. The  gentlr man  could  as  well  however, 
move  the  reconsideration  to-morrow  as  to-day. 

Mr.  DANFORTH,  at  the  suggestion  of  those 
around  him,  was  willing  to  take  the  question 
now. 

Mr.  BAKER  enquired  how  the  gentleman 
voted. 

Mr.  DANFORTH  was  not  aware  that  there 
was  any  rule  on  that  subject. 

The  Chair  said  that  in  the  absence  of  any  rule 
on  the  subject,  the  ordinary  parliamentary  rule 
governed.  That  required"  a  gentleman  to  have 
voted  with  the  majority,  in  order  to  move  a  re- 
consideration. 

Mr.  DANFORTH  had  voted  with  the  minority. 

Mr.  E,  SPENCER.  I  voted  with  the  majority 
and  I  move  a  reconsideration. 

The  committee  refused  to  reconsider.  Ayes 
33,  nays  49. 

Mr.  CROOKER  thought  the  section  as  it  now 
stood  was  too  unwieldy,  and  would  therefore  offer 
the  following  as  a  substitute  : 

"Neither  the  Governor  or  LieutenantGovernor  shall  hold 
any  office  under  any  other  Government,  except  a  military 
command  under  the  United  States  In  time  of  war,  or  in 
case  of  invasion  or  insurrection  ;nor  any  office  or  place  in 
any  corporation  or  institution  of  a  local  or  private  charac- 
ter :  and  the  acceptance  by  either  of  any  office  hereby 
prohibited  to  them,  shall  vacate  the  office  of  Governor  or 
Lieut.  Governor,  so  held  by  him." 

Mr.  JORDAN,  understanding  that  this  merely 
corrected  the  phraseology  of  his  amendment  as 
amended  was  willing  to  adopt  it. 

The  amendment  was  adopted — after  some  con- 
versation between  Messrs.  LOOMIS,  BERGEN, 
and  JONES,  as  to  whether  the  section  should  not 
be  incorporated  elsewhere — ayes  52,  nays  29. 

The  10th  section  was  then  read,  as  follows : 


§  10.  The  governor  may  in  his  discretion  deliver  over  tc 
ustice  any  person  found  in  »he  state,  who  shall  be  charged 
with  having  committed,  without  the  jurisdiction  of  the 
United  States,  any  crime  except  treason,  which  by  the 
laws  of  this  state,  it  committed  therein,  is  punishable  by 
death,  or  by  imprisonment  in  the  state  prison.  Such  deii- 
very  can  only  be  made  on  the  requisition  of  the  duly  au- 
thorized minister  or  officers  of  the  government  within  the 
urisdiction  of  which  the  crime  shall  be  charged  to  have 
:>een  committed  ;  and  upon  such  evidence  of  the  guilt  of 
the  person  so  charged  as  would  be  necessary  to  justify  his 
apprehension  and  commitment  for  trial,  had  the  crime 
charged  been  committed  in  this  state. 

Mr.  WARD  did  not  know  that  it  was  the  In- 
tention of  the  chairman  to  press  the  amendment 
"  which  authorizes  the  Governor  to  deliver  over 
to  justice,  on  the  requisition  of  the  duly  author- 
ized minister  or  officer,  any  person  found  in  the 
State,  who  shall  be  charged  with  having  commit- 
ted without  the  jurisdiction  of  the  U.  S.,  any 
crime  except  treason,  which  by  the  laws  of  this 
State,  if  committed  therein,  is  punished  by  death, 
or  by  imprisonment  in  that  State."  It  was  a  pro- 
position to  place  an  entirely  new  feature  in  the 
Constitution,  and  one  in  his  impression  repug- 
nant to  the  Constitution  of  the  United  States. — 
The  Constitution  confers  upon  the  President,  in 
article  2,  2d  section,  these  powers  : 

"  The  President  shall  have  power,  by  and  with  the  advite 
and  consent  of  the.  Senate,  to  make  treaties,  provided  two- 
thirds  of  the  Senate  concur  :  and  he  shall  nominate  by  and 
and  with  the  advice  and  consent  of  the  Senate,  shall  ap- 
point ambassadors  and  other  public  ministers  and  consuls, 
Judges  of  the  Supreme  Court,  and  all  other  officers  of  the 
United  States  whose  appointments  are  not  herein  other- 
wise provided  for,  and  which  shall  be  established  by  law. 
But  the  Congre&s  may  by  law  vest  the  appointment  of 
such  inferior  officers  as  they  think  proper,  in  the  Presi- 
dent alone,  in  the  courts  of  law,  or  in  the  heads  of  depart- 
ments." 

Now,  the  power  was,  in  his  opinion,  conferred 
upon  the  Executive  of  the  United  States.  Not 
only  that,  but  the  Constitution  went  further  and 
prohibited  the  States  from  exercising  this  power. 
He  would  read  from  article  1st,  section  10  : 

"  No  State  shall,  without  the  consent  of  Congress,  levy 
any  imposts  or  duties  on  imports  or  exports,  except  what 
may  be  absolutely  necessary  for  executing  its  inspection 
law;  and  the  nett  produce  of  all  duties  and  imposts  laid  by 
any  State  on  imports  or  exports,  shall  be  for  the  use  of  the 
Treasury  of  the  United  States:  and  all  such  laws  shall  be 
subject  to  the  revision  and  control  of  Congress.  No  State 
shall,  without  the  consent  of  Congress,  levy  any  duty  or 
tonnage;  keep  troops  or  ships  of  war  in  time  of  peace;  e'nter 
into  any  agreement  or  compact  with  any  other  State,  or 
with  a  foreign  power;  or  engage  in  a  war,  unless  actually 
existing  or  in  such  imminent  clanger  as  will  not  admit  of 
delay." 

He  did  not  believe  that  the  honorable  gentleman 
at  the  head  of  the  committee,  intended  strictly  to 
pursue  this  question.  He  (Mr.  W.)  confessed 
that  he  might  be  altogether  deceived  in  the  view 
he  had  of  it,  but  his  own  examination  and  the  views 
on  the  question  so  clearly  presented,  by  the  gen- 
tleman from  Oneida,  (Mr.  KIRKLAND)  the  other 
day,had  satisfied  his  mind  on  the  point.  He,  (Mr. 
W.)  did  not  intend  to  discuss  this  point  at  length, 
all  he  desired  was  to  present  his  views,  leaving 
others  to  express  theirs,  if  they  pleased.  Mr.  W. 
then  referred  to  the  case  of  Holmes  against  the 
governor  of  Vermont,  where,  a  person  named 
Holmes  had  committed  the  crime  of  murder  in  Ca- 
nada, and  was  arrested  in  the  State  of  Vermont 
by  a  warrant  from  the  Governor  of  that  State,  for 
the  purpose  of  delivery  to  the  Government  of  Ca- 
nada. He  obtained  a  writ  of  Habeas  Corpus,  and 
the  Supreme  Court  of  Vermont  refused  to  dis- 


321 


charge  him.  He  then  brought  a  writ  of  error  on  that 
decision  to  the  Supreme  Court  of  the  U.  S.  A 
preliminary  question  was  made  as  to  the  right  of 
a  party  to  bring  a  writ  of  error  in  such  a  case — 
on  this  formal  question  the  court  was  equally  di- 
vided, but  the  majority  of  the  court  were  clearly 
of  the  opinion  that  the  Governor  of  Vermont  had 
no  authority  to  deliver  up  Holmes,on  the  ground 
that  that  power  had  been  conferred  by  the  Consti- 
tution of  the  U.  S.  in  the  President  alone.  The 
case  was  argued  by  that  court  with  much  ability, 
and  the  opinion  of  the  court  was  read  by  Chief 
Justice  Taney,  upon  their  decision  being  made. — 
If  that  was  sound  law  then  it  seemed  to  him  that 
this  proposition  ought  not  to  be  adopted,  as  not 
only  repugnant  to,  but  in  violation  of  the  Consti- 
tution of  the  United  States.  When  the  States 
met  together  by  delegates  at  Philadelphia,  for  the 
purpose  of  forming  a  Constitution  they  agreed 
to  abide  by  that  instrument,  and  presented  it  to 
the  States  with  their  names  signed  to  it.  After 
that,  conventions  were  held  in  the  States,  and 
these  passed  on  it,  and  confirmed  the  acts  of  their 
delegates.  It  therefore  seemed  to  him  unwise 
to  introduce  such  a  provision  at  this  time.  It 
would  be  better  to  let  it  remain  as  did  the  first 
Constitution  of  '77,  and  the  last  one  of  '21.  It 
was  the  first  time  within  his  recollection  that 
an  attempt  had  been  made  to  place  such  a  feature 
in  any  one  of  our  Constitutions. 

Mr.  MORRIS  said  that  this  provision  was  taken 
from  the  existing  laws  of  the  State,  and  not  in- 
vented by  committee  No.  5.  He  would  refer  gen- 
tleman to  the  third  edition  of  R.  S.  vol.  1  page  170 
sec.  8  :  Now  one  of  two  things  was  true — that  law 
should  not  be  retained  on  the  statute  book,  or  it 
should  be  placed  in  the  Constitution,  because  it 
was  too  high  a  power  to  be  left  a  mere  statute. 
If  it  was  right  that  it  should  exist,  it  should  be  in- 
corporated into  the  Constitution.  It  was  upon 
this  view  therefore  that  it  was  introduced  here, 
to  test  the  judgment  of  the  Convention  as  to  whe- 
ther it  was  or  not  the  law_of  the  land,  and  if  not, 
that  it  should  go  forth  and  be  stricken  from  our  sta- 
tutes. Now  the  principle  that  a  governor  should 
possess  the  power  to  deliver  up  depredators,  on 
individual  right,  to  the  laws  from  which  they 
fled,  for  punishment,  was  established  and  ac- 
knowledged by  all  civilized  governments  The 
United  States  had  by  the  treaty  of  Washington 
and  subsequently  by  a  treaty  with  France,  enter- 
ed into  precisely  this  arrangement— that  England 
and  France  may  demand  of  us  individuals  who  had, 
within  their  territories,  committed  an  offence 
against  individual  rights  and  violated  their  laws 
and  our  government  gives  them  up.  They  have 
conceded  to  us  by  this  compact  the  same  right  to 
demand  of  them  individuals  who  have  violated 
our  laws.  But  there  were  other  governments  of 
Europe  with  whom  no  treaty  ot  the  kind  had 
been  made.  As  regards  England  and  France, 
the  State  of  New  York  would  have  a  right  to 
call  upon  the  Executive  of  the  Union  to  com- 
ply with  the  demand  made,  but  not  so  in  re- 
lation to  all  governments  from  which  criminals 
might  come.  And  the  question  was  whether, 
where  a  treaty  was  not  made  between  the  general 
government  and  other  governments,  the  States 
were  not  authorised  to  protect  themselves  ?  In 
giving  up  criminals  to  justice,  we  did  not  do  it 


for  the  purpose  so  much  of  vindicating  the  laws 
of  other  countries,  as  to  protect  ourselves  against 
the  example  and  education  transmitted  to  this 
country  by  the  individuals  who  come.  He  was 
perfectly  satisfied  with  the  decision  of  the  com- 
mittee, whether  they  struck  out  the  whole  sec- 
tion or  not.  It  was  put  in  to  call  public  atten- 
tion to  it.  If  it  was  in  violation  of  the  constitu- 
tion of  the  United  States,  he  was  willing  that  it 
should  be  stricken  out,and  if  it  was,  public  atten- 
tion should  be  called*to  the  fact,  and  the  law  no 
longer  disgrace  the  statute  book. 

Mr.  KIRKLAND  said  that  this  section  gave  the 
power  absolutely  to  the  Governor  of  the  State,  in 
his  discretion,  to  deliver  up  fugitives  when  pro- 
perly demanded  by  other  governments.  He  arose 
now  to  call  the  attention  of  the  committee  to  the 
fact  that  this  was  not  an  unsettled  question,  but 
one  which  had  been  settled  by  the  highest  judi- 
cature in  the  land,  to  the  decisions  of  which  we 
are  all  bound  to  bow.  Mr.  K.  here  referred  to 
the  case  of  Holmes  vs.  Jennison,  in  the  Supreme 
Court  of  the  United  States,  the  circumstances  of 
which  were  cited  by  Mr.  WARD.  It  ought  to  be 
remarked,  said  Mr.  K.,  that  in  consequence  of  a 
formal  question  as  to  whether  a  writ  of  error 
could  be  brought  from  the  State  courts  to  the  Su- 
preme Court,  that  the  Court  was  divided,  and 
that  therefore  no  judgment  in  point  of  form  was 
rendered,  but  it  was,  a  decision  in  point  of  fact. 
Chief  Justice  Taney  says  :  "  The  general  govern- 
ment possesses  the  power  in  question,  and  it  re- 
mains to  inquire  whether  it  has  been  surrendered 
by  the  States.  We  think  it  has,  and  on  two 
grounds.  1.  According  to  the  express  word  of 
the  Constitution,  it  is  one  of  the  powers  that  the 
States  are  forbidden  to  exercise.  2.  It  is  incom- 
patible and  inconsistent  with  the  powers  confer- 
red on  the  federal  government."  Again :  "  Such 
being  the  policy  of  the  general  government,  the 
possession  of  this  power  by  the  State  is  totally 
contradictory  and  repugnant  to  the  authority  con- 
ferred on  the  federal  government."  Again  :  *•  On 
the  whole,  on  the  most  mature  and  careful  deli- 
beration, we  are  of  opinion  that  the  power  to  sur- 
render fugitives  who  having  committed  offences 
in  a  foreign  country,  have  fled  to  this  for  shelter, 
belongs  under  the  Constitution  of  the  United 
States,  exclusively  to  the  federal  government,  and 
that  the  authority  exercised  in  this  instance  by 
the  Governor  of  Vermont,  is  repugnant  to  the 
Constitution  of  the  United  States."  Therefore, 
although  no  final  judgment  was  rendered  in  the 
case,  Mr.K.considered  the  question,  to  be  authori- 
atively  decided  by  the  highest  tribunal  in  the  land, 
and  a  decision  of  that  court  as  all  were  aware  was 
definitive  in  matters  of  this  kind.  In  his  opinion 
therefore  the  section  ought  not  to  be  inserted  in 
the  State  Constitution.  It  was  a  matter  left  to  the 
genera]  government. 

Mr.  TALLMADGE  thought  that  the  clause 
was  right  and  proper  to  stand  in  the  statute  book, 
and  yet  that  it  ought  not  to  be  incorporated  into 
the  constitution.  His  proposition  was  this. — 
That  by  treaty  arrangements  the  general  govern- 
ment was  bound  to  give  up  these  persons  charged 
with  crimes  and  fleeing  from  another  country. 
If  its  officers  should  come  here  and  make  the  ar- 
rests, open  collisions  of  course  would  arise. — 
With  great  propriety  therefore,  was  this  clause 


322 


in  the  statutes  providing  that  the  Governor  should 
in  his  discretion  deliver  over  to  justice  as  the 
general  government  might  demand.  It  presented 
merely  a  matter  of  form  and  consistent  course  of 
conduct  to  be  pursued.  But  to  provide  in  the 
6onstitution  that  the  Governor  should  have  this 
power  co-ordinate  with  the  general  government 
was  what  the  constitution  of  the  U.  S.  prohibited, 
as  decided  by  the  Supreme  Court  of  the  U.  S. — 
He  would  therefore  strike  it  out  and  leave  the 
matter  where  it  now  was. 

Mr.  WORDEN  said  that  the  surrendering  by 
one  Government  to  another  of  persons  charged 
with  crimes,  was  always  a  matter  of  treaty  of  na- 
tional comity,  and  had  never  been  considered  as 
international  law.  This  section,  then  might  ma- 
terially conflict  with  what  might  be  the  settled 
policy  of  the  country  in  certain  emergencies.— 
Take  for  instance  Mexico,  between  whom  and  the 
U.  States  all  the  relations  of  national  comity  were 
at  an  end.  Should  the  Mexican  government  de- 
mand from  the  government  of  this  State  a  person 
charged  with  a  crime,  adopt  this  provision,  and 
the  governor  would  be  warranted  in  giving 
hira  up,  while  at  the  same  time  there  could  be 
no  reciprocity  on  the  part  of  Mexico.  This  was 
a  part  of  the  treaty  making  power  in  all  civilized 
nations,  and  inasmuch  as  we  had  surrendered  that 
power  to  the  federal  government,  was  it  right  or 
prudent  to  leave  this  matter  at  the  discretion  of 
the  governor.  A  state  of  things  might  exist 
between  the  United  States  and  another  govern- 
ment, where  it  would  be  entirely  against  the 
policy  of  the  government  that  this  power  should 
be  exercised  at  all.  He  was  opposed  therefore  to 
leaving  it  to  the  governor  to  act  at  his  own 
discretion,  in  what  may  tend  to  this  conflict  of 
policy. 

Mr.  SIMMONS  was  not  so  clear  as  to  the  pro- 
priety of  striking  out  this  section.  He  would 
amend  the  section  so  as  to  require  the  Governor 
to  deliver  over  criminals  to  the  President  of  the 
U.  S.  and  the  General  Government  on  his  requisi- 
tion. He  would  do  it  because  he  was  satisfied 
that  no  gentleman  would  vote  for  the  section  as 
it  stood,  not  merely  because  it  was  an  attempt  to 
interfere  with  the  functions  of  the  General  Gov- 
ernment, but  from  the  further  reason  as  laid 
down  by  Mr.  Jefferson's  letter,that  if  the  Governor 
had  the  power,  he  could  not  venture  to  exercise  it 
without  becoming  in  a  degree,  accessory  to  the 
criminal  laws  of  all  nations,  whether  we  ap- 
proved of  them  or  not.  We  could  not.  do  it  any 
more  than  the  Sublime  Porte,  —  who  when 
the  Spanish  Government  sent  to  Constantinople 
for  the  delivery  of  the  political  refugees  after  the 
insurrection  of  1821,  replied  through  the  Reis 
Effendi,  that  they  did  not  believe  in  such  offen- 
ces— that  it  was  contrary  to  the  faith  of  the 
prophet  to  surrender  up  to  any  Christian  nation, 
a  political  refugee  who  had  fled  to  them,  for 
a  sanctuary.  But  he  was  unwilling  to  say  that 
the  Governor  should  not  be  made  use  of  in  the 
case  of  a  requisition  from  the  National  Govern- 
ment. It  was  only  carrying  out  his  notion  of 
allowing  the  State  Government  to  be  a  little  aux- 
iliary instead  of  being  an  alien  or  enemy,  to  the 
General  Government. 

Mr.  BROWN  :  Let  us  leave  it  to  the  Legis- 
lature. 


Mr.  SIMMONS,  upon  reflection,  had  no  objec- 
tion. Perhaps  it  was  better  to  leave  it  with  the 
Legislature  ;  and  he  would  withdraw  his  amend- 
ment. 

The  question  being  taken,  the  section  was 
stricken  out. 

The  llth  section  was  then  read,  as  follows  : 

§11.  Every  provision  in  the  constitution  and  laws  In  rej 
lationto  the  powers  and  duties  of  the  governor,  and  in  re- 
lation to  acts  and  duties  to  be  performed  by  other  officers 
or  persons  towards  him,  shall  be  construed  to  extend  to 
the  person  administering  lor  the  time  being  the  govern- 
ment of  this  state. 

Mr.  CROOKER  moved  to  strike  out  this  sec- 
tion, inasmuch  as  by  a  slight  verbal  alteration  of 
the  6th  section,  the  same  object  would  be  attain- 
ed. 

Some  conversation  here  ensued,  as  to  whether 
the  6th  section  could  be  taken  up — which  was 
objected  to,  as  being  unnecessary — when  the 
question  was  taken  on  Mr.  CROOKER'S  motion, 
and  the  section  stricken  out. 

The  12th  section  was  then  read,  as  follows  : 

§12.  The  governor  may,  upon  the  application  of  the 
sheriff  of  any  county  in  the  state,  order  such  a  military 
force  from  any  other  county  or  counties  of  the  state,  as 
may  be  necessary  to  enable  such  sheriffto  execute  process 
delivered  to  him. 

Mr.  CROOKER  moved  to  rise  and  report  pro- 
gress, as  he  was  satisfied  that  this  section  would 
give  rise  to  a  long  discussion. 

The  motion  was  rejected. 

Mr.  MANN  moved  to  strike  out  this  section 
also,  as  the  Governor  had  power  enough  now. 

Mr.  MORRIS  explained  the  reasons  for  putting 
this  section  in.  As  matters  now  stand  the  gover- 
nor had  not  the  power  to  send  a  military  force 
into  a  county  until  its  whole  power  in  the  ser- 
vice of  civil  process .  was  exhausted.  It  was  to 
avoid  conflicts  between  neighbors  in  this  matter 
of  serving  civil  process. 

Mr.  CROOKER  was  in  favor  of  striking  out  the 
section. 

Mr.  BROWN  :    We  are  all  in  favor  of  it. 

Mr.  CROOKER  would  not  then  make  any  re- 
marks. They  had  had  enough  of  calling  out 
troops  in  his  (Cattaraugus)  county.  They  had 
there  subjected  the  county  to  the  expense  of  call- 
ing out  two  or  three  thousand  men,  to  serve  pro- 
cess on  one  man  who  was  bed-ridden. 

The  question  being  taken  the  section  was  strick- 
en out. 

The  13th  section  was  then  read: — 

§  13.  The  governor  may  remove  from  office  any  sheriff 
at  any  time  within  the  period  for  which  such  sheriff  was 
elected.  He  shall  first  give  to  such  sheriff  a  copy  of  the 
charges  against  him,  and  an  opportunity  of  being  heard  in 
his  defence,  before  any  removal  shall  be  made. 

Mr.  NICHOLS  suggested  that  the  section 
should  be  passed  by,  inasmuch  as  there  were 
various  other  officers  to  whom  this  power  would 
apply_and  the  matter  could  better  be  arranged 
hereafter. 

Mr.  STETSON  believed  thatone  of  the  reports 
made  this  morning,  (in  relation  to  local  affairs,) 
covered  this  whole  ground. 

Mr.  MORRIS  enquired  by  what  authority  that 
committee  reported  on  the  duties  and  powers  of 
the  Governor  in  this  respect.  This  authority  was 
given  to  his  committee,  No.  5.  That  committee 
did  not  consider  that  the  Governor  ought  to  ha.ve 


323 


the  power  to  turn  out  Clerks,  &c.  The  Sheriff 
lie  Executive's  officer,  the  representative  of 
the  Governor  in  the  several  counties,  and  he 
should  therefore  have  some  control  over  him. 

Mr.  WATERBURY  urged  that  the  Governor 
should  have  control  over  the  Sheriff,  in  order  to 
secure  an  efficient  discharge  of  the  duties  of  the 
office. 

The  question  being  taken,  the  committee  re- 
fused to  strike  out  the  section. 

And  then  the  committee  rose  and  reported  pro- 
gresss. 

The  PRESIDENT  announced  a  communication 
from  WILLIAM  C.  BOUCK,  President  of  the  New 
York  State  Temperance  Convention,  transmitting 
a  resolution  of  invitation  to  the  State  Convention 
to  attend  the  annual  meeting  of  that  body. 

On  motion  of  Mr.  TALLMADGE,  it  was  ac- 
cepted. 

And  then  the  Convention  adjourned  to  9  o'clock 
to-morrow  morning. 

THURSDAY,  (31th  day,)  July  16. 

Prayer  by  Rev.  Mr.  KNAPP. 

Mr.  BROWN  offered  a  resolution  that  on  and 
after  Monday  next  the  Convention  shall  hold  af- 
ternoon sessions,  to  commence  at  4  o'clock,  be- 
side the  morning  sessions  to  commence  at  9  o'- 
clock. 

Mr.  JONES  wished  this  deferred  for  a  week, 
by  which  time  all  the  reports  of  committees 
would  be  in. 

Mr.  WARD  moved  to  substitute  half  past  6  P. 
M.  for  4P.M. 

This  was  lost  and  the  resolution  was  adopted. 

Mr.  HAWLEY  offered  the  following  resolu- 
tion, which  vas  adopted  : — 

Resolved,  That  the  Comptroller  be  requested  to  report 
to  the  Convention  the  respective  sums  borrowed  and  loans 
made  by  virtue  of  section  number  four,  and  subdivisions 
number  one.  two,  three,  four,  live  and  six  of  section  num- 
ber five  or  the  act  "  to  provide  for  paying  the  debt  and 
preserving  the  credit  of  the  State,"  passed  March  29th, 
1342,  and  to  what  purposes  the  several  sums  thus  loaned 
have  respectively  been  applied.  Also,  the  several  sums 
invested  in  certain  specific  funds  of  the  State,  authorized 
by  sections  numbered  eight,  nine  and  ten  respectively, 
and  the  amount  paid  into  the  treasury  as  avails  of  the  di- 
rect tax  authorized  by  section  number  one  of  said  act. — 
And  to  what  purpose  or  purposes  such  funds  have  been 
applied. 

Mr.  RHOADES  complained  that  gentlemen  who 
were  invited  inside  the  bar,  took  the  member's 
seats  away.  And  he  offered  a  resolution  to  the 
effect  that  the  rule  authorizing  members  to  invite 
citizens  within  the  bar,  did  not  authorize  such 
persons  to  occupy  the  seats  of  members. 

Mi-.  FORSYTE  wanted  to  know  what  they 
were  to  do  with  their  friends  when  they  got  them 
inside  the  bar,  unless  they  were  to  give  them 
seats.  This  was  a  most  extraordinary  resolution. 

Mr.  RHOADES  said  that  no  member  had  a 
ri^rht  to  give  away  his  seat ;  he  might  as  well 
give  away  h;s  dinner  to  his  friend,  because  he  has 
no  dinner  himself. 

Mr.  SWACKHAMMER  moved  to  lay  the  reso- 
lution on  the  table.  Lost. 

Mr.  HOFFMAN  said  that  these  abuses  of  per- 
sons coming  inside  and  taking  seats,  were  at 
times  very  great;  it  was  particularly  the  case 
when  the  Albany  and  Troy  bridge  business  was 
before  the  Legislature. 


Mr.  CROOKER  ottered  a  resolution  that  no  per- 
son should  be  admitted  inside  the  bar,  but  nitm- 
bers,  reporters  and  officers. 

Mr.  PATTERSON  said  that  members  them- 
selves were  to  blame  for  most  of  the  noise  and 
confusion  that  took  place ;  the  people  behavtd 
very  well  ;  the  members  made  all  the  noise. 

Mr.  FOKSYTH  said  that  there  were  several 
seats  in  his  neighborhood,  and  elsewhere  that  had 
not  been  occupied  during  the  entire  session ; 
these  they  could  offer  to  their  friends.  It'  they 
asked  a  friend  inside  under  the  rule,. and  then 
could  not  present  him  a  chair  for  him  to  sit  down, 
it  would  be  like  asking  a  man  home  to  dinner, 
and  giving  him  nothing  to  eat. 

Mr.  FLANDERS  said  that  sometimes  for  half  a 
day  they  would  hear  nothing  around  him,  on  ac- 
count of  the  noise  from  conversation. 

The  resolution  was  adopted. 

Mr.  LOOMIS  from  the  select  committee  as  to 
the  order  of  business,  reported  that  the  subjects 
be  considered  in  the  following  order: — 

1.  Executive  Department. 

2.  Election,  apportionment,  pay,  &c.,  of  the  Legislature. 

3.  Incorporation,  other  than  banking  and  municipal. 

4.  Currency  and  banking. 

5.  Canals,  internal  improvements,  public  debt,  &c. 

6.  The  judiciary, 

7   Powers  and  duties  of  the  Legislature. 

8.  Appointment  or  election  of  local  officers. 

9.  Election  or  appointment  of  officers  whose  powers  are 
not  local. 

10.  Powers  of  counties,  towns,  &c.,  except  cities  and  in- 
corporated villages. 

11.  Organization  and  powers  of  cities  and  incorporated 
villages,  &c. 

12.  The  elective  franchise. 

13.  Education,  common  schools,  &c. 

14.  Creation  and  division  of  estates  in  land. 

15.  Official  oaths  and  affirmations. 

16.  The  militia  and  military  affairs. 

17.  Rights  and  privileges  of  citizens. 

18.  Future  amendments. 

Mr.  CHATFIELD  stated  that  he  did  not 
approve  of  the  order;  there  were  two  subjects, 
the  Elective  Franchise  and  Human  Rights  that 
ought  to  be  considered  before  any  other;  they 
ought  to  be  as  high  as  Nos.  3  or  4.  The  subject 
of  the  "Rights  and  Privileges"  was  generally  put 
first  in  all  constitutions;  it  is  not  so  in  our  own, 
but  it  ought  to  be. 

On  motion  of  Mr.  KIRKLAND,  the  report  was 
laid  on  the  table  and  ordered  printed. 

EXECUTIVE  DEPARTMENT. 

The  committee  of  the  whole,  Mr.  CHATFIELD 
in  the  chair,  took  up  the  report  on  this  subject. 

The  13th  section  was  under  consideration. 

(}  13.  The  Governor  may  remove  from  office  any  sheriff 
at  any  time  within  the  period  for  which  such  Sheriff  was 
elected.  He  shall  first  give  to  such  sheriff  a  copy  of  the 
charges  against  him  and  an  opportunity  of  being  heard  in 
his  defence,  before  any  removal  shall  be  made. 

Mr.  CROOKER  moved  to  insert  afier  the  word 
"elected"  the  words  "lor  inal-feasance  or  non- 
feasance  of  office."  He  did  not  wish  a  Sheriff  to 
be  removed  by  a  Governor  for  any  little  peccadil- 
los, that  afflicted  morality, &c. 

Mr.  MORRIS  said  the  clause  was  in  the  very 
words  of  the  present  Constitution,  and  their  adop. 
tion  had  been  justified  by  past  practice.  The 
Governor  under  this  had  removed  many  sheriffs, 
but  none  for  any  peccadillos,  he  believed. 

Mr  CROOKER:  No.  But  I  do  not  want  him 
to  have  the  power  to  do  so,  over  so  many 


3:24 


He  may  now  remove  one  for  mere  assault  and  bat- 
tery. 

Mr.  BROWN :  Suppose  he  is  convicted  of  an 
infamous  crime  ? 

Mr.  CROOKER:     Well,  then,  remove  him. 

Mr.  TALLMADGE  said  that  this  section  had 
stood  through  two  Constitutions,  and  he  hoped  it 
would  be  adopted  again. 

Mr.  CROCKER'S  amendment  was  rejected. 

The  14th  section  was  then  read  as  follows : 

§  14  Every  bill  which  shall  have  passed  the  Senate  and 
Assembly,  shall,  before  it  becomes  a  law,  be  presented  to 
the  Governor:  if  he  approve,  he  shall  sign  it;  but  if  not,  he 
shall  return  it  with  his  objections  to  that  House  in  which 
it  shall  have  originated,  who  shall  enter  his  objections  at 
large  on  their  journal,  and  proceed  to  reconsider  it.  If, 
after  such  reconsideration,  two-thirds  of  the  members  pre- 
sent shall  agree  to  pass  the  bill,  it  shall  be  sent,  together 
with  the  objections,  to  the  other  House,  by  which  it  shall 
likewise  be  reconsidered;  arid  if  approved  by  two-thirds 
of  the  members  present,  it  shall  become  a  law.  If  not  ap- 
proved by  two-thirds  of  the  members  present,  and  if,  at 
the  next  ensuing  session  of  the  legislature,  the  same  bill 
shall  be  again  passed  by  the  vote  of  the  majority  ol  all  the 
members  elected  in  each  branch  of  the  legislature,  such 
bill  shall  become  a  law  notwithstanding  the  objections  of 
the  Governor;  and  upon  the  final  passage  of  every  bill,  the 
votes  of  both  houses  shall  be  determined  by  yeas  and 
nays,  and  the  names  of  the  members  voting  for  and  against 
the  bill  shall  be  entered  on  the  journal  of  each  House  re- 
spectively. II  any  bill  shall  not  be  returned  within  ten 
days  (Sundays  excepted)  after  it  shall  have  been  present- 
ed to  him,  the  same  shall  be  a  law,  in  like  manner  as  if  he 
had  signed  it,  unless  the  legislature  shall  by  their  adjourn- 
ment prevent  its  return;  in  which  case  it  shall  not  be  a 
law,  unless  the  Governor  shall  approve  the  same  within 
ten  days  after  the  adjournment.  The  omission  of  the  Go- 
vernor in  such  case  to  approve  of  a  bill  within  ten  days 
after  the  adjournment  shall  have  the  same  effect  as  if  such 
bill  had  been  returned  to  the  legislature  with  his  objec- 
tions. 

Mr.  NICOLL  moved  to  insert  after  the  word 
*'  bill"  in  the  first  line,  the  words,  "  order  or  re- 
solution, except  for  a  resolution  for  an  adjourn- 
ment." 

CHAIR:  The  Governor  does  not  sign  all  joint 
resolutions. 

Mr.  NICOLL  deprecated  the  practice  of  voting 
away  money,  books,  &c.,  by  the  concurrent  reso- 
lutions of  the  two  houses  of  the  Legislature.  Noth- 
ing of  the  kind  should  be  done  without  the  assent 
of  the  Executive  power ;  this  ought  always  to  be 
required  to  these  concurrent  resolutions ;  as  much 
so  as  to  any  other  matter  that  was  passed  by  the 
Legislature.  This  was  now  a  provision  of  the 
constitution  of  the  United  States. 

Mr.  JONES  said  there  were  many  concurrent 
resolutions,  which  ought  not  to  receive  the  ac- 
tion of  the  Governor.  He  instanced  the  case  of 
instructions  to  Senators  in  Congress.  Where  they 
had  the  effect  and  force  of  law,  they  ought  to  be 
signed  by  the  Governor. 

Mr.  NICOLL  would  modify  his  amendment  so 
as  to  apply  only  to  such  resolutions  as  had  the 
force  of  a  law. 

Mr.  PATTERSON  wished  to  know  what  kind 
of  resolutions  the  gentleman  from  New  York 
wanted  this  to  apply  to.  Now,  there  was  often  a 
concurrent  resolution  to  supply  stationery,  &c. ; 
he  had  never  "known  an  instance  yet  of  the  passage 
of  a  joint  resolution  to  appropriate  money ;  that 
required  a  law.  Joint  resolutions,  such  as  he 
had  mentioned,  needed  not  the  Governor's  signa- 
ture. 

Mr.  HOFFMAN  said  that  under  these  joint  re- 
solutions, untold  thousands  had  been  voted  away 


in  Congress.  And  there  was  nothing  now  to  pre- 
vent, our  legislature  from  voting  away  any  amount 
of  money  by  concurrent  resolution.  True,  the 
spirit  of  the  constitution  says  it  shall  not  be  so  ; 
but  that  instrument  does  not  say  so  in  terms. — 
And  under  this,  the  Comptroller  has  been  known 
to  neglect  to  enforce  a  law,  and  released  a  large 
debt  of  the  State. 

Mr.  WORDEN  said  that  these  resolutions  were 
very  often  drawn  too  loosely.  He  would  have 
this  section  so  drawn  that  no  money  or  public 
property  should  be  appropriated  without  authori- 
ty of  law,  under  no  contingency  whatever. 

Mr.  NICOLL  modified  his  amendment  as  fol- 
lows : — "  Order  or  resolution  having  the  force  of 
law,  to  which  the  concurrence  of  both  Houses 
may  be  necessary,  except  a  resolution  for  ad- 
journment." 

Mr.  HOFFMAN  said  that  he  would  say  a  few 
words,  by  way  of  explanation  which  would  enable 
the  committee  to  view  this  point  in  a  somewhat 
clearer  light ;  this  matter  arose  under  different 
governments  in  whose  legislative  bodies  there 
was  ordinarily  some  rule  which  required  that  a 
bill  should  not  be  originated  or  passed  during  the 
last  days  of  the  session.  The  technical  term  used 
was  "  bill."  Now  it  did  sometimes  happen  that  in 
those  last  days  of  asession,  it  sometimes  becomes 
necessary  that  there  should  be  an  appropriation  of 
money  ;  and  thus  when  a  bill  cannot  be  origina- 
ted (under  the  rules)  for  the  purpose  of  making 
such  an  appropriation — the  majority  in  favor  of  it, 
instead  of  asking  the  unanimous  consent  to  dp 
so,  effect  this  object  by  the  passage  of  a  joint  re- 
solution. Now  it  has  often  been  supposed  (how 
correctly,  he  did  not  say)  that  such  a  joint  reso- 
lution, signed  by  the  executive,  had  precisely  the 
same  effect  as  a  law.  Now  these  joint  resolutions 
are  resorted  to  in  order  to  supply  any  omission, 
arid  to  prevent  any  mischief  arising  from  what 
may  have  escaped  observation  during  the  previ- 
ous days  of  the  session.  It  is  in  this  way  that  the 
two  houses  of  this  legislature  have  been  able  not- 
withstanding the  rule  against  bringing  in  bills, 
during  the  last  days  of  a  session,  to  make  partic- 
ular and  sometimes  even  large  appropriations. — 
And  he  would  submit  to  the  committee  whether, 
whenever  a  joint  resolution  is  to  have  the  same 
effect  as  a  law,  is  to  vote  away  public  money,  or 
to  dispose  of  public  property — it  ought  not  to 
have  the  signature  of  the  executive  the  same  as 
a  bill  ?  And  he  was  firmly  convinced  that  reso- 
lutions having  these  objects,  ought  to  come  with- 
in the  rule,  and  we  ought  to  ask  to  have  the  Con- 
stitution say  so  in  terms.  Why  he  very  well 
recollected,  and  others  must  recollect,  a  few 
years  since,  that  a  Railroad  was  advertised  for 
sale  by  the  Comptroller,  because  the  Company 
did  not  pay  its  two  per  cent  interest  on  a  loan  to 
the  Sinking  Fund.  Well,  the  agents  of  this  rail- 
road came  on  to  this  city,  and  asked  the  Legisla- 
ture for  relief,  under  the  circumstances ;  now,  a 
law  for  this  purpose  would  have  required  a  two- 
third  vote;  so,  it  was  in  vain  to  attempt  it  in  that 
way ;  but  &  joint  resolution  to  effect  the  object 
was  passed,  and  the.railroad  remained  unsold. — 
And  this  resolution,  in  fact,  had  the  effect  of  sus- 
pending the  execution  of  a  law  of  the  State. — 
Now,  he  disliked  this  mode  of  whipping  around 
the  constitution ;  this  illegal  mode  of  suspending 


325 


the  operation  of  laws,  and  of  riding  over  them 
at  random  for  interested  purposes.  He  would 
insist  that  wherever  a  resolution  is  to  become  in 
effect  a  law,  wherever  a  resolution  is  to  have  the 
force  of  executing  a  law,  or  wherever  it  is  to  have 
the  force  of  suspending  the  operation  of  a  law,  it 
should  have  the  signature  of  the  Executive ;  and 
if  a  resolution  of  any  such  a  character,  which  is 
to  have  the  effect  of  suspending  the  operation  or 
the  execution  of  an  act  of  the  Legislature,  can  be 
passed  by  the  two  houses,  and  put  in  force  with- 
out the  signature  of  the  Executive,  then  this  is 
no  longer  a  government  of  law.  And  he  did  in- 
sist that  whenever  a  resolution  is  to  have  the  ef- 
fect of  a  law  affirmatively,  or  to  have  the  effect  of 
a  law  by  suspending  the  execution  of  an  act  of 
the  Legislature,  then  we  ought  to  have  it  so  sta- 
ted in  terms  in  the  Constitution,  that  all  such  re- 
solutions must  be  signed  by  the  Executive,  and 
we  ought  to  make  it  imperative  on  the  Executive 
and  Legislature  to  do  this ;  so  that  the  Executive 
on  all  these  important  matters  can  speak  directly 
to  the  people. 

Mr.  MORRIS  said  that  the  difficulty  which  his 
colleaguge  (Mr.  NICOLL)  had  complained  of  and 
desired  to  obviate,  and  which  the  gentleman  from 
Herkimer  (Mr.  HOFFMAN)  had  just  presented  so 
strongly  to  the  committee,  was  one  that  certainly 
ought  to  be  provided  for  in  some  way  ;  but  he 
asked  those  two  gentleman  to  reflect  for  a  moment 
upon  one  result  which  would  be  produced  by  his 
colleague's  amendment.  He  (Mr.  M.)  admitted 
that  no  authority  should  ever  be  given  to  a  legis- 
lature to  pass  that  by  a  resolution  which  is  to  have 
the  effect  of  a  law.  Now  the  gentleman  from 
Herkimer  (Mr.  HOFFMAN)  had  told  them  that 
though  it  requires  a  two  third  vote,  for  instance, 
to  create  a  corporation,  a  legislature  might  evade 
and  create  by  resolution.  But  will  the  learned 
gentleman  from  Herkimer  contend,  and  I  am  sure 
he  will  not,  sir  ?  [Mr.  HOFFMAN.  You  do  not 
know  yet.]  I  am  sure  he  will  not  sir.  That 
this  can  be  done  ?  And  yet  the  argument 
might  be  used  if  they  put  this  amendment  into 
the  clause  in  the  veto  power,  it  would  be  con- 
strued as  giving  power  to  create  a  corporation  by 
resolution.  Now  Mr.  M.  contended  that  no  law 
could  be  created  except  by  bill.  He  was  sure 
that  under  the  old  act  a  two-third  vote  was  neces- 
sary for  the  creation  of  a  corporation  ;  and  could 
the  legislature  now  create  a  corporation  by  resolu- 
tion ?  Certainly  not,  sir  ;  certainly  not.  In  every 
instance  of  the  Constitution  speaking  of  the 
legislature  it  speaks  of  a  bill ;  wherever 
tneir  act  was  10  have  the  foice  ot  law, 
it  was  always  by  bills;  and  all  bills  rMist  be  sub. 
mitted  to  the  Governor  for  his  approval,  or  for 
him  to  assign  reasons  for  his  disapproval.  He  re. 
peated  then,  that  if  this  amendment  of  his  col- 
league  was  made,  it  would  be  construed  to  au- 
thorize the  doing  that  by  resolution  which  should 
only  be  done  by  law,  arid  that  should  never  be 
permitted.  The  gentleman  trom  Herkimer  (Mr. 
HOFFMAN)  says  that  this  mode  has  been  resort- 
ed to  by  the  Legislature  in  order  to  get  rid  of  one 
of  their  own  rulea.  Now  they  ought  never  to  be 
allowed  to  do  this?.  We  should  never  allow  them 
by  these  careless  random  resolutions  to  pass  laws 
should  never  permit  that  to  be  done  in  a  careless, 
loose  way,  which  required  deliberation  and  care. 


He  was  opposed  therefore  to  the  amendment,  for 
if  we  adopt  it,  if  will  give  the  impression  abroad 
that  the  Legislature  may  make  laws  in  this  care- 
less manner,  without  the  intervention  of  the 
Executive,  and  any  thing  tending  to  do  this  he 
would  never  plare  in  the  Constitution. 

Mr.  HOFFMAN  said  that  he  would  a^ree  nith 
the  conclusions  of  the  gentleman  from  New  York 
if  he  could  agree  with  his  premises.  If  Legis- 
lative bodies  did  not  pass  joint  resolutions  that 
had  the  aspect  ot  laws— if  they  had  not  already 
passed  such  resolutions — he  might  be  inclined  to 
stand  with  that  gentleman;  but  the  only  objec- 
tion applied  by  the  present  Constitution  in  the 
word  "bill"  has  not  prevented  the  Legislature 
passing  resolutions  having  these  results,  nor 
did  he  know  that  they  could  there  overthrow 
the  system  by  mere  arguments  to  show  that  it 
was  improper.  The  system  was  entirely  im. 
proper;  but  still  it  is  done;  and  Legislatures  for 
300  years  have  claimed  and  exercised  this  right — 
to  make  lav\s  by  resolutions;  and  it  could  not  by 
any  argument  here  now  be  overthrown  How  was 
it?  Was  every  act  to  make  a  corporation  passed 
by  a  tw(,-third  vote.  No.  He  wished  it  was  80. 
The  Constitution  had  said  that  no  such  act  should 
be  passed  but  by  two-thirds,  and  to  get  rid  of  this 
they  had  resorted  to  joint  resolutions;  shall  this 
be  continued  ?  Shall  another  small  loan  of  $70,- 
000  at  2  per  cent,  sinking  fund  be  released  ?  He 
hoped  not.  He  was  not  tenacious  as  to  how  the  evil 
was  remedied.  He  was  indebted  to  the  commit- 
tee No.  5  for  bringing  in  their  report  as  they  had, 
and  thus  bringing  attention  to  this  subject.  He 
thought  the  proposition  of  the  gentleman  from 
New  York  would  effect  his  purpose  ;  without  it, 
he  believed  resolutions  to  operate  as  laws  de 
facto  would  find  their  way  through  the  Legisla- 
ture as  heretofore,  during  the  next  twenty  years. 

Mr.  PATTERSON  had  no  objection  to  the  in- 
sertion of  a  clause  to  amount  to  a  prohibition  that 
no  money  should  be  drawn  from  the  treasury  ex- 
cept by  the  authority  of  law.  But  he  would  put 
nothing  in  the  Constitution  that  would  seem  to 
tolerate  the  idea  that  money  might  be  so  drawn 
by  a  mere  concurrent  resolution.  He  disapproved 
of  this  altogether.  He  moved  an  amendment  to 
meet  the  case  as  follows : 

"  No  money  shall  Le  drawn  from  the  treasury  but  by 
authority  of  law." 

Mr.  W.  TAYLOR  thought  that  there  ought  to 
be  such  a  provision  in  our  Constitution  as  was 
found  in  the  Constitution  of  the  United  States, 
providing  that^no  money  should  be  drawn  from 
the  treasury  except  by  the  authority  of  law ;  and 
he  suggested  an  addition  to  the  amendment  which 
the  gentleman  from  Chautauque  had  intimated  he 
should  offer;  if  it  was  apprehended  that  money 
might  be  drawn  from  the  treasury  without  au- 
thority of  law,  then  add  the  words,  "  unless  pass- 
ed by  bill  in  the  usual  manner."  In  such  a  case, 
the  amendment  of  the  gentleman  from  New  York 
would  be  unnecessary. 

Mr.  NICOLL  said  this  last  remedy  would  only 
meet  the  difficulty  half  way ;  when  the  legisla- 
ture took  upon  themselves  by  joint  resolution  to 
suspend  the  operation  of  a  law,  we  should  see  if 
they  really  possess  this  power  ;  and  if  they  do,  it 
is  of  vital  importance  that  we  define  a  restriction, 
in  terms,  in  the  Constitution. 


326 


Mr.  TALLMADGE  said  that  every  step  we 
take— every  move  we  make  was  of  vast  import- 
ance to  the  people;  and  he  hoped  gentlemen 
Would  stop  talking  and  reading  newspapers,  and 
attend  to  business.  He  regretted  to  hear  of  the 
legislative  usage  of  acting  by  concurrent  resolution 
in  appropriating  money,  &c., which  only  should  be 
done  by  the  consent  of  the  governor.  It  was  a  prac- 
tice that  was  not  to  be  endured  ;  and  he  hoped  an 
amendment  would  be  provided  to  prevent  such 
gross  and  disgusting  misconduct.  What !  could 
the  two  houses  undertake  to  evade  the  Executive 
disapprobation  ?  The  Executive  had  formerly  un- 
der the  old  Constitution,  not  only  power  to  veto, 
but  power  to  prorogue  the  legislature  in  cases  of 
legislative  corruption,  and  one  instance  of  its  ex- 
ercise [understood  to  be  in  1812]  was  based  on 
the  notoriety  of  corruption  that  was  common  talk 
to  the  disgrace  of  our  history.  Daniel  D.  Tomp- 
kins,  on  the  13th  of  March,  1812,  prorogued  the 
legislatures,  noticing  as  a  reason  the  notoriety  of 
the  corruptions  in  passing  bills  at  that  day.  If 
they  would  read  the  papers  of  the  day,  they 
would  find  that  there  was  cause  in  1821  for  sweep- 
ing away  the  council  of  revision.  It  had  been 
asked  why  the  reasons  had  not  been  given  ?  It 
was  not  proper  to  do  so ;  under  the  state  of  feel- 
ing in  1821,  it  was  left  out.  But  he  thought 
however  that  the  power  of  prorogation  should  be 
restored,  and  he  should  hereafter  move  a  provi- 
sion to  affect  that  purpose,  for  it  was  a  high, 
salutary  power,  of  the  abuse  of  which  there  was 
no  danger  ;  every  bill  that  opened  the  treasury 
should  come  under  the  action  of  the  Executive, 
and  thus  go  through  the  ordeal  of  the  three  de- 
partments of  the  legislature.  He  regretted  to 
near  that  a  course  of  conduct  had  been  pursued 
of  getting  resolutions  through  having  the  force  of 
law.  He  would  not  insert  the  amendment;  it 
would  assume  the  right  of  all  the  rest  of  powers 
not  strictly  enumerated  to  be  used.  Let  us  have 
none  of  this — no  party  ties ;  he  belonged  to  no 
party  now;  but  he  saw  the  wisdom  of  caution, 
arid  of  checks  to  restrain  party  action.  Let  us 
reject  all  amendments  to  this,  and  hold  to  the 
statute  regulation,  and  to  nothing  else. 

Mr.  MURPHY  thought  the  amendment  unne- 
cessary. As  explained  by  those  who  sustained  it, 
it  sought  to  effect  a  double  purpose,  to  prevent 
the  passage  of  resolutions  having  the  force  of  law 
in  themselves,  and  to  correct  a  practice  which 
might  arise  of  resolutions  of  the  legislature  con- 
trolling the  execution  of  other  laws  properly  pas- 
sed. He  submitted  that  no  resolution  having  the 
force  of  law  can  now  be  passed  without  the  sig- 
nature of  the  governor.  He  ventured  to  say  that 
no  example  of  that  kind  could  be  found.  We 
were  not  to  anticipate  a  violation  of  the  constitu- 
tion. If  the  abuse  existed,  he  would  go  with  the 
furthest  to  correct  it.  The  only  instance  which 
had  been  cited,  was  the  one  given  by  the  gentle- 
man from  Herkimer,  as  happening  in  Congress. 
But  we  had  nothing  to  do  with  the  practice  of  Con- 
gress ;  but  even  there  the  instance  alluded  to 
•was  not  as  that  gentleman  declared.  He  (Mr. 
HOFFMAN)  had  said  that  thousands  of  dollars  had 
been  drawn  out  of  the  Treasury  of  the  United 
States  for  the  public  printing  simply  by  joint  re- 
solution ;  but  he,  Mr.  W.  would  remind  that  hon- 
orable gentleman  that  the  joint  resolution  of  1818 


to  which  reference  was  made,  was  signed  by  the 
President,  and  went  through  all  the  forms  of  leg» 
islation  as  a  law,  as  provided  by  the  Constitution 
of  the  United  States.  It  was  therefore  not  a  case  in 
point.  He  did  not  believe  that  any  instance  could 
be  found  of  money  being  drawn  out  of  the  treasury 
of  the  U.S.  or  of  this  State,except  by  a  bill  or  reso- 
lution which  went  through  all  the  forms  of  legis- 
lation, and  was  in  many  respects  a  law.  The 
contingent  funds  of  Congress  and  of  the  legisla- 
ture were  always  appropriated  by  law.  After 
that  they  were  properly  disbursed  by  resolution. 
The  other  evil  which  the  amendment  seeks  to 
remedy  is  certainly  of  an  extraordinary  character. 
Should  any  public  officer  refuse  to  carry  a  law 
into  effect  because  the  legislature  may  have'pass- 
ed  a  joint  resolution  which  the  Governor  has  not 
sanctioned,  of  a  different  character  from  the  law, 
he  would  be  unworthy  of  the  place.  It  was  very 
well  for  such  an  officer  to  differ  to  the  opinion  of 
the  legislature  in  a  doubtful  case  ;  but  he  would 
not  allow  any  such  resolution  to  conflict  with  his 
duty  in  carrying  the  law  into  effect.  Deeming  it 
therefore,  unnecessary  in  either  view,  he  concur- 
red with  the  gentleman  from  Dutchess,  (Mr. 
TALLMADGE,)  that  it  would  be  impolitic  to 
change  the  language  of  the  present  Constitution, 
which  provided  that  every  bill  which  shall  have 
passed  the  Senate  and  Assembly  shall, before  it  be- 
comes a  law,  be  presented  to  the  Governor.  The 
word  "bill"  has  a  settled  signification,  and  the 
introduction  of  the  new  words  contemplated  by 
the  amendment  may  have  the  effect  to  change 
the  whole  practice  of  our  legislation. 

Mr.  TILDEN  said  that  it  was  remarkable  that  a 
proposition  like  this  was  introduced  by  Mr.  Jay  in 
the  Convention  of  1821,  but  was  withdrawn  for 
the  purpose  of  inserting,  in  its  appropriate  place, 
a  prohibition  against  legislation  in  the  form  of 
joint  resolutions  or  orders.  He  did  not  find,  how- 
ever, in  the  examination  he  had  been  able  to 
make  during  the  debate,  that  the  attention  of  that 
body  was  ever  afterwards  brought  to  the  subject. 
Since  that  time,  as  before,  it  seems  that  public 
money  and  property  have  been  appropriated — 
debts  to  the  State  have  been  released  or  extended 
— and  laws  have  been  suspended,  by  joint  resolu- 
tions. There  is,  therefore,  a  clear  necessity  for 
some  provision  of  this  character.  But  it  might  be 
inconvenient  if  all  joint  resolutions— those  of  in- 
struction or  advisement  to  our  Senators  or  Repre- 
sentatives in  Congress,  or  merely  expressing  the 
opinions  of  the  legislature,  for  instance— were 
required  to  be  approved  by  the  Executive.  If 
the  mover  of  the  amendment  will  modify  it  so  as 
to  make  it  apply  only  to  resolutions  "  intended  to 
have  the  force  of  law,"  it  will  be  in  the  proper 
form.  Gentlemen  suggest  tfratthe  object  may  be 
better  attained  by  a  provision  that  no  money  shall 
be  drawn  from  the  treasury  by  a  joint  resolution. 
That  would  not  go  far  enough.  If  laws  may  be  sus- 
pended or  varied,  in  this  mode,  the  evil  is  no  less 
than  in  the  appropriation  of  money.  He  hoped 
that  all  abuses  of  this  nature  would  be  effectually 
prevented,  and  no  legislation  by  joint  resolution 
permitted,  but  he  was  inclined  to  think  it  could 
be  more  properly  done  by  a  restraint  on  the  legis- 
lative power. 

Mr.  LOOMIS  said  there  could  be  no  doubt  that 
it  had  been  the  practice  for  many  years,  for  the 


327 


legislature  to  pass  resolutions — joint  resolutions 
Which  have  the  effect  of  law,  and  thus  dispose  of 
the  public  property.  Such  was  his  impression 
when  this  debate  commenced ;  but  he  went  to 
the  library,  and  taking  up  one  volume  of  the  jour- 
nals, he  found  three  concurrent  resolutions,  pass- 
ed in  1813,  appropriating  books  and  property, 
and  in  1-vU  he  found  four  ;  thus  evading 
that  part  of  the  Constitution  which  requires  all 
this  to  be  by  bill  in  the  legal  way.  He  took  up 
the  next  year's  proceedings  and  there  he  found 
four  such  resolutions ;  and  there  was  no  doubt 
but  it  had  been  the  practice  of  the  legislature,  to 
pass  resolutions  evading  that  part  of  the  constitu- 
tion which  required  the  sanction  of  law. 

Mr.  MURPHY :  Did  not  the  officer  entrusted 
with  the  execution  of  these  joint  resolutions  deny 
their  validity. 

Mr.  LOOMIS :  Certainly  not.  Besides  they 
were  not  always  directed  to  the  same  officers. 

Mr.  TILDEN  called  the  attention  of  his  friend 
from  Herkimer  to  a  statement  of  Mr.  JONES  as  to 
the  practice  under  the  former  Constitution.  He 
said,  "The  journals  of  the  Legislature  abound 
with  resolutions  which  have  had  the  effect  of  laws. 
There  were  at  least  twenty  cases  last  winter  of 
this  kind.  He  found  resolutions  directing  the 
Comptroller  to  suspend  the  sale  of  lands  for  tax- 
es— directing  the  Adjutant  General  to  distribute  a 
publication  relative  to  the  discipline  of  the  mili- 
tia throughout  the  State  at  the  public  expense, 
&c.,  &c.  And  in  1814,  he  found  a  joint  resolu- 
tion directing  the  Treasurer  to  pay  over  to  certain 
gentlemen  appointed  commissioners  for  that  pu/&- 
pose,  $5030t/0  for  the  relief  of  the  Niagara  suffer- 
ers." 

Mr.  LOOMIS  continued :  There  had  been  some 
pretty  large  appropriations  made  in  this  way 
He  thought  every  one  here  would  be  in  favor  o 
stopping  such  a  system,  and  therefore  that  the 
only  question  was,  whether  they  should  put  in  an 
amendment  here  in  this  report,  or  wait  until  they 
came  to  act  on  the  report  on  the  powers  and  du- 
ties of  the  legislature.  If  they  did  it  as  here  pro- 
posed,  he  feared  it  would  have  the  effect  of  sanc- 
tioning legislation  by  resolution  instead  of  by  bill 
Then  the  Constitution  would  seem  to  anticipate 
that  the  legislature  would  hereafter  vote  money 
and  property  and  suspend  the  operation  of  laws  fr 
joint  resolution.  He  thought  they  had  bette 
make  the  prohibition  in  the  subsequent  article  tc 
pass  a  law  other  than  in  the  form  of  law  and  in 
sert  it  in  the  other  report. 

Mr.  NICHOLAS  joined  in  requesting  the  gen 
tleman  from  New  York  to  withdraw  his  amend 
ment  so  as  to  insert  it  hereafter  as  suggested. 

Mr.  TALLMADGE  stated  an  instance  of  $40 
having  been  appropriated  to  buy  books,  from 
person  named  Disturnell,to  be  distributed  amongs 
members  of  the  legislature.  He  said  the  prac 
tice  of  voting  themselves  gifts  in  this  manner 
was  an  abominable  one.  It  was  unworthy  of  men 
unworthy  of  the  legislative  body,  and  unworth 
of  this  great  State  that  there  was  no  law  for  a] 
this.  It  was  disgraceful. 

The  CHAIRMAN    said  it  was  the  uniform 
practice  at  the  close  of  a  session  to  do  this. 

Mr.  CROOKER  thought  the  amendment  coul 
be  appropriately  made  here. 

Mr.  DANA  thought  it  more  properly  belonge 


the  legislative  department ;  could  it  be  trans- 
erred  hereafter  to  another  committee  if  it  should 
ow  be  inserted  here  ? 

The  CHAIRMAN  thought  not,  unless  the  Con- 
ention  should  again  return  to  this  section. 

Mr  CROOKER  wished  to  insert "  resolution  or 
rder,"  and  this  will  give  the  governor  full  power 
nd  yet  not  infringe  on  the  rights  or  duties  of  the 
egislature. 

Mr.  PATTERSON  :  Then  you  make  a  resolu- 
on  or  order  a  law. 

Mr.  TALLMADGE  would  Vote  against  all  these 
mendments,  but  would  insert  the  principle  in 
nother  article  at  some  subsequent  period. 

Mr   STElfcON  opposed  all  these  amendments, 
""hey  -anctioned  the  very  course  which  was  con- 
einned,  and    would   not  remedy  the  evil,  which 

e    was    as  desirous    as    others   to    remedy. 

Jut  none  of  these  amendments  now  proposed, 
vould,  if  adopted,  reach  the  case.  The  legisla- 
ure  have  exclusive  control  of  their  contingent 
unds;  and  these  appropriations  are  generally'made 
herefrom ;  but  this  is  really  an  abuse  of  legisla- 
ion ;  and  is  in  reality  equivalent  to  taking  it  out 
if  the  public  treasury.  As  to  joint  resolutions 
.cting  so  as  to  suspend  a  law,  or  create  a  new 
aw,  instances  of  the  kind  equivalent  to  legisla- 
ive  practice  may  be  found,  and  they  call  loudly 
or  remedy.  The  only  remedy  is  to  insert  the 
;heck  in  this  section  fully  and  clearly,  and  thus 
emedy  the  evil.  He  (Mr,  S.)  would  rather  have 
t  worded  so  that  no  joint  resolution  shall  ever 
lave  the  force  of  law  except  under  .certain  cir- 
cumstances. But  if  you  pass  the  proposed  amend- 
ment you  then,  by  the  Constitution,  virtually 
sanction  the  voting  away  of  money  and  property 

y  the  Legislature  through  the  means  of  joint  re» 
solutions.  ModernConstitutions  prescribe  the  style 
— and  the  form  which  all  bills  should  have, to  have 
;he  effect  and  force  of  a  law.  And  this  should  be 
adhered  to.  But  we  have  nothing  in  the  existing 

onstitution  that  requires  we  should  put  our 
.aws  into  the  form  of  a  bill.  And  hence  arises 
;his  whipping  around  the  Constitution  in  the  in- 
stances complained  of.  There  is  no  prohibition 

n  the  present  Constitution  that  this  shall  not  be 
done;  but  it  is  certainly  high  time  that  there 
was. 

Mr.  TALLMADGE  had  sent  to  the  library  for 
a  journal  ol  the  Legislature,  in  which  he  found 
that  there  had  been  nn  appropriation  to  the  mem- 
bers themselves,  by  resolution,  of  copies  of  Dis- 
tui nail's  Register.  (He  read  Me  resolution.) 
This  abominable  practice  of  voting  gifts  to  them- 
selves was  most  disgraceful.  To  put  a  stop  to 
such  outrageous  proceedings  as  this,  he  believed 
there  was  a  disposition  in  the  minds  ot  every 
member  of  the  Convention,  and  when  we  have  ar- 
rived at  the  article  designating  the  poweisand  du- 
ties of  the  Legislature,  it  would  be  proper  to  con- 
aider  it.  He  hoped  they  would  not  insert  it  here 
80  as  to  confuse  the  veto  power,  but  put  it  in  at 
the  proper  time  and  place. 

Mr.  NICOLL  then  withdrew  his  amendment, 
so  that  it  might  be  offered  to  the  committee  on  the 
powers  and  duties  of  the  Legislature. 

Mr  RHOADES  next  submitted  an  amendment, 
as  follows : — 

Strike  out  all  after  the  word  "  it,"  at  the  end  of  the  first 
sentence,  and  insert  as  follows  :—*"  If,  after  such  reconsj- 


328 


deration,  a  majority  of  all  the  numbers  elected  shall  agree 
to  pass  the  bill,  it  shall  be  sent,  together  with  the  objec- 
t,ons  totne  other  House,  by  which  it  shall  likewise  be 
reconsidered,  and  if  approved  by  a  majority  of  all  the 
members  elected,  it  shall  become  a  law,  no  withstanding 
the  objections  of  the  Governor.  But  in  all  such  cases 
the  votes  of  both  Houses  shall  be  determined  by  yeas  and 
nays  and  the  names  voting  for  and  against  the  bill  be  en- 
entered  on  the  journal  of  each  House  respectively 

His  object  was  to  strike  out  all  that  part  which 
required  two-third  vote  after  a  veto,  and  also  that 
part  which  says  a  bill  may  be  passed  by  a  subse- 
quent Legislature.  He  thought  the  majority 
principle  was  much  the  best,  and  that  it  ought  to 
rule  here  It  was  the  opinion  of  many  that  this 
clause  had  been  the  means  of  more  corrupt  legis- 
lation than  any  other  feature.  He  would  not  in- 
terfere with  the  veto  power  of  the  Governor,  but 
he  would  allow  the  Legislature,  upon  calm  re- 
consideration to  pass  the  bill  by  a  majority  of  the 
members  of  both  branches.  If  the  Governor 
should  interpose  his  objections  on  the  ground  of 
unconstitutionality  or  want  of  consideration,  there 
would  be  abundant  security  in  trusting  all  to  the 
sober  reconsideration  of  both  houses.  He  could 
not  subscribe  to  the  doctrine  that  the  Governor 
was  the  more  immediate  representative  of  the 
people,  than  the  Legislature.  He  referred  to  in- 
stances where  the  Veto  power  had  been  abused  by 
the  occupant  of  the  Presidential  Chair,  recently, 
(John  Tyler  )  He  had  exercised  this  power,  not 
with  a  view  to  promote  the  public  good,  but  to 
gain  for  himself  a  little  popularity.  And  we  had 
the  disgusting  spectacle  of  his  son  passing  thro 
the  State,  endeavoring  to  manufacture  some  littL 
capital  for  his  father— calling  him  "Old  Veto.'' 
He  trusted  something  would  be  adopted  that 
would  guard  us  from  such  abuses.  He  would 
leave  the  whole  matter  under  the  comrol  of  a 
majority  of  the  Legislature. 

Mr.  RHOADES  explained  that  he  did  not  in- 
tend to  say  anything  with  a  view  to  impeach  the 
capacity  of  the  present  Governor  for  administer- 
ing the"  affairs  of  this  State. 

Mr  W.  TAYLOR  differed  from  his  colleague, 
(Mr  RHOADES.)  The  gentleman  from  Onondaga 
had  said  that  he  did  not  wish  to  destroy  the  veto 
power,  and  yet  his  amendment  did  in  effect  de- 
stroy it  Legislators  once  having  framed  a  law, 
would  always  be  likely  to  adhere  to  their  former 
vote,  for  the  pride  of  opinion,  if  for  no  other  rea- 
son ;  and  if  the  same  majority  could  destroy  the 
veto  of  the  Governor,  it  would  virtually  be  a 
breaking  down  of  the  constitutional  barrier  to 
improper  legislation.  And  as  to  the  singular  re- 
marks of  his  colleague,  (Mr.  RHOADES)  that  the 
present  highly  talented  and  distinguished  Chief 
Magistrate  of  this  State  had  been  chosen  because 
he  was  thoroughly  conversant  with  the  national 
politics  of  the  country,  and  not  acquainted  with 
the  affairs  of  this  State,  he  would  only  tell  his 

colleague  that 

Mr  RHOADES  continued :  He  believed  that  the 
two-third  principle  in  regard  to  bills  adopted 
in  the  old  Constitution  had  been  of  little  or  no 
use ;  on  the  contrary  it  had  been  the  source  of  a 
great  deal  of  corruption.  It  had  made  more  lobbj 
agents  than  anything  else.  He  did  not  desire  tc 
destroy  the  veto  power  ;  he  believed  it  to  have 
been  very  useful ;  it  had  often  prevented  the  pas 
sa*e  of  laws  that  were  frequently  the  result  o 


lasty  and  improvident  legislation  ;  laws  that  were 
unconstitutional  and  contrary  to  the  public  inter- 
ests ;  and  a  majority   of  the  members  of  the  Le- 
gislature would  always  be   found  to  be  sufficient 
o  decide  upon  all  these.     If  they  are  unconsti- 
utional  they  can  decide  to  that  effect ;  and  if  they 
lave  been  hastily  passed,  under  unnatural  excite- 
ment, there  will  be  time  for  members  to  get  cool, 
>y  the  time  the  Governor's  veto  reaches  the  Legis- 
ature.    If  they  were  contrary  to  the  public  inter- 
ests, it  would  always  be  safe,  after  the  veto  comes, 
to  submit  the  measures  to  the  consideration  of  the 
same  body  again  ;  and  this  course  would  be  much 
more   in  harmony  with   the  general   principles 
adopted  throughout  the  whole  State.     And  he 
would  therefore  be  willing  at  all   times  to  allow 
;he   legislature   upon  a  certain   consideration  to 
Dass  the  bill  by  a  majority  of  both  branches  not- 
withstanding the  veto.     He  could  not  subscribe 
;o   the  doctrine,  that  the  governor  was  the  more 
mmediate  representative  of  the  people  than  the 
egislature.     The  assembly  in  its  aggregate  capa- 
city  is   the   more   immediate    representative  of 
the  will  and  wishes  of  the  people  ;  and  it  will  be 
much  more  so,  when  we  come  to  have  single  elec- 
tion districts  as  reported  by  the  committee  No.  1. 
He  thought   the  Governor  was  sometimes   chosen 
because  he  was  identified  with    great,  questions  of 
National  policy, more  than  S  ate  policy.  It  was  even 
said  that  this  was  the  case  with  the  present incum- 
Dent  who  had  been  chosen  contrary  to  his  own  wish- 
es, and  the  wishes  of  his  friends,  to  run  as  candidate 
n  this  State,    in  ord*  r  to  secure  the    presidential 
;l£ction.       He  had    been    long  in    Congress  and 
nerefore  his  wishes  upon  all  questions  of  national 
policy    were    well     known.      And     thus    as    it 
had  been    it   might   be   again    that  a    man  would 
be  selected   more   for  his    being  connected   with 
the  national  interests,  than  for  those  of  this  State. 
Mr.  TAYLOR  continued — He  trusted  not.  No 
man  could  do  so.     The   present  Governor    was 
chosen  because  he  was  peculiarly  qualified  to  ad- 
minister the  executive  duties  of  this   State.     He 
had  long  been  known  to   have  been  thoroughly 
identified  with  all   its  best  and  dearest  interests  ; 
and  most  eminently  fitted  by  nature,   education, 
energy  of  character,  commanding  talents,untiring 
application  to  his  public  duties  to  fill  the   distin- 
guished office  of  Governor  of  the  great   State  of 
New  York.     With  regard  to  the  veto  power,  he 
repeated  that  the  abrogation  would, in  his  judgment 
be  breaking  down  the  most  important  barrier  that 
the  people  had  against  improper,   imprudent,  or 
illegal  legislation.     He  believed  that  this  power 
could  not  be    intrusted  in  safer  hands,  or  to  a  per- 
son both  qualified  by  integrity,  discretion  and  dis- 
cernment to  use  it,  or  to  a  person  who  was   bet- 
ter acquainted  with   the  interests  of  the   State, 
than  by  vesting  it  with  the  present  Governor   of 
this  State.     He  denied  that  the   veto   had  been 
very  often  exercised  by  President    JACKSON. — 
General  JACKSON  had  only  exercised  it  some  two 
or  three  times;  and  nothing  was  ever  more  popu- 
lar with  the  people  than  in   each   instance  of  his 
exercise  of  this  power;   it  was   wisely   exercised, 
and  loudly    applauded  by  the  mass  of  the  people. 
The  first  time  that  he  used  it,  it  was   the  veto  on 
the  Maysville  Road  Bill;  and  the  principles  upon 
which  he  based  his  honest  and   independent  con- 
duct in  relation  to  thai  act,  became  aturwards  the 


329 


universal  sentiment  of  the  people  of    the  United 
States.     His  second  veto,   also,  met   with  the  ap- 
probation of  a    very  large  majority  of  the   people 
of  this  country;    and  they  from  that  time  became 
more  attached  to  the   exercise,  and  more  sensible 
to  the  importance  of  the  veto  power  than  ever.  — 
The  successor  of  General  Jackson    had  also  wise- 
ly exercised  it  ;    in  but   one  or    two  instances  — 
And    Mr.     TYLER    had    also    exercised     it,    as 
he    believed  twice,  and  upon  the  same  questions, 
and  the  same  principles  as  Gen.  Jackson  had  ex- 
ercised it  ;   and  .in  each   case,   as  the  gentlemen 
iv&]]  i-nr-xv   fhp  nponle  had  aDDroved  of  it.     His 

been  abused,  although  it  existed  in  the  Constitu- 
tion of  the   U.  S.,  of  this  State,  and  of  several 
other  States,  in  a  degree  more  or  less  stringent. 
No  man  could  rise  in  his  place,  and  say  in  a  man- 
ner that  would  be  corroborated  by  history  and  the 
opinion  of  mankind  hereafter,  that  the  power  had 
ever  been  injuriously  exercised.    Its  exercise  had 
always  been   in  favor   of  popular   rights.     The 
gentleman  from   Onondaga  (Mr.  RHOADES)  had 
said  that  the  veto  power  might  be,  and  had  been, 
exercised  for  the  sake  of  popularity.     How,  for 
the  sake  of  popularity  ?    How  could  it  be  popular 
unless  a  majority  of  the  people  were  opposed  to  the 

vote  on  this  bank  was  sustained  by  public  senti-   vetoed  law?  And  in  such  a  case  was  the  gentleman 
ment ;  and  he  also  vetoed  the  harbor  bill,  or  bill   prepared  to  say  that  the  Governor  ought  not  to  in- 
making  appropriations  for  the   improvement  of  terpose  his  veto  ?      It  appeared  to  him  to  be  the 
rivers;  and  this  he  had  done  upon  what  he  be-   very  best  reason  for  its  exercise.    If  he  became 
lieved  to  be  constitutional  grounds.     In  this  State   satisfied  that  a  majority  of  the  people  were  opposed 
it  has  been  exercised  but  rarely ;  only  on  one  oc-    to  the  law  it  was  his  duty  to  veto  it.    If  he  supposed 
casion  by  the  present  Governor,  and  that  exercise   that  undue  influences  were  exerted  upon  the  le- 
of  it  had  met  with  the  approbation  of  the  people   gislature,   which  were  not  felt  by  the  people,  it 
of  the  State,  so  far  as  they   could  judge  by  their   was  time  for   him   to  interpose   his  veto.     As  a 
popular  meetings,  their  resolutions,  and  in  other   proof  that  it  was  not  abused,  no  law  that  was  ever 
vvavs.     Strike  from  the   Constitution  this  power,   vetoed   had  passed  a  second  time,  either  in  this 
and  he  could  assure  them  they  would  find  hasty,    State   or   the  general  government.     The   U.  S. 
inconsiderate,   inexpedient,  unconstitutional  le-    Bank  bill  had  been  vetoed  several  times  and  might 
gislation   frequent  enough.      They  would  have   we   not  say  with  eminent  and  popular  success, 
log-rolling  of  all   kinds,  and  measures  palpably   Fortunately  it  had  saved  the  country  from  that 
unconstitutional,  if  not  entirely  inexpedient ;  and   institution,  and  at  this  day  whatever  party  was  in 
it  is   as  necessary   to  guard   against  inexpedient   power  would  not  succeed  in  passing  suc^h  a  law. 
measures  as  unconstitutional  ones.     He  desired  to  I  \Vas  not  that  in  favor  of  the  veto  power  ?     Mr. 
preserve  the  veto  power  especially  to  check  inex-   L.  concurred  in  the  views  of  the  gentleman  frorri 
pedient  legislation,  for  men  would  scarcely  ever   Onondaga   (Mr.  W.    TAYLOR)   and  was  not  dis- 
pass  measures  that  were  palpably  unconstitutional   posed  to  argue   this  question  at  length.     He  con- 
while  the  ve'.o  power  remained,  whilst  they  might   sidered  that  where  the  Constitution   had  been  in 
often     pass   those    that  were   inexpedient,   and   fuil  force  ever  since  the   organization  of  this  go- 
which  would  jeopardise  the  interests  of  the  State;   vernment,  precisely  in  this  form,  and  there  had 
and  this  salutary  check  should  be  left  to  counter-   been  no  public  complaint,  or  at  least  it  had  been 
act  such  measures.     He  believed  that  the    veto   but  of  a  partial  and  he  might  say  of  a  party  cha- 
power  should  be  left  precisely  where  it  was  in   racter,  and  not  general  even  with  any  one  politi- 
the  Constitution  of  1821.     It  was  perfectly  safe   cai  party,  it  was  safer  to  leave  it  as  it  stood.     He 
to  allow  it  to  remain  in  its  present  form,  as  the   would  therefore  leave  this  veto  power  precisely 
people  could  always  send  back  another  year  re-   where  it  stood. 

presentatives  who  would  pass  any  law  which  Mr.  BROWN  regretted  the  necessity  he  was 
they  deemed  desirable.  If  a  good  and  proper  bill  under  to  detain  the  committee  at  this  time.'  But 
sho'uld  be  vetoed,  the  people  before  a  second  the  question  of  retaining  the  veto  power  in  its 
election  could  have  the  time  to  reflect,  and  if  present  vigor,  was  one  upon  which  the  people  he 
they  re-elected  a  decided  majority  in  favor  of  that  nacl  the  honor  in  .part  to  represent,  had  scarcely 
measure,  they  would  undoubtedly  pass  it  again.  a  divided  opinion.  Whatever  some  of  them  might 
In  the  mean  while  the  Governor  would  have  had  think,  of  the  propriety  of  its  exercise  upon  the 
time  to  reflect,and  considering  what  was  the  will  of  bills  to  which  it  had  been  applied  in  times  past, 
the  people  he  would  undoubtedly  yield  ;  and  he  with  regard  to  the  necessity  of  its  existence  as  a' 
would  not  be  likely  to  veto  it  a  second  time,  after  ruie  of  the  fundamental  law — as  far  as  he  could 
they  had  sent  majorities  a  second  time  to  adopt  collect  their  sentiments,  they  were  almost  unani- 
it.  Therefore  he  thought  the  veto  power  had  mous.  He  should  therefore,  be  forgetful  of  his 
better  be  left  as  it  is.  duty  to  them,  did  he  suffer  the  proposition  before 

Mr.  LOOMIS  looked  upon  the  veto  power,  as  the  committee  to  pass  unnoticed.  The  veto  pow- 
oitablished  in  this  government,  as  one  of  the  ev  jn  some  form  or  other  was  to  be  found  in  everv 
highest  safe  guards  against  improvident  and  cor-  Well  constructed  representative  government.  The 
rupt  legislation.  In  order  to  pass  a  bill  into  a  executive  branch  of  some  exerted  an  absolute 
law,  it  had  to  pass  through  two  separate  branches  veto,  which  was  a  total  prohibition  upon  the  pas- 
of  the  legislature,  and  be  examined  by  each.  And  sage  of  laws  without  its  asssent.  Such  was  the 
yet  improvident  legislation  was  not  arrested,  and  pOWer  of  the  crown  in  Great  Britain.  In  our  own 
therefore  a  third  power  and  branch  of  the  govern-  state  Constitution,  as  well  as  in  that  of  the  gen- 
ment  was  provided  by  the  people — the  Executive  erai  government,  the  veto  power  was  qualified 
— it  was  left  to  him  to  consider  whether  the  law  an(j  could  be  overruled  by  a  vote  of  two-thirds  of 
was  a  provident  one  or  not,  and  to  decide  upon  the  legislative  body.  It  was  the  great  conserva- 
it.  He  represented  the  whole  people — and  this  tive  power  of  both  governments.  It  was  design - 
veto  power  was  the  highest  safeguard  against  the  eo;  to  keep  the  several  departments  in  their  ap- 
passage  of  bad  laws  He  denied  that  it  had  ever  j  pr0priate  sphere  of  action,  and  especially  to  pro- 

21 


330 


tect  the  executive  and  judicial  branches  from  the 
encroachment  of  the  legislative  department.  It 
was  designed  to  shield  the  minority,  from  the  ag- 
gressive and  unrestained  power  of  the  majority. 
It  vyas  the  constitutional  safeguard  of  the  people 
against  precipitate,  improvident  and  c&rrupt  leg- 
islation, and  should  therefore  be  preserved  in  all 
its  native  vigor.  He  trusted  the  committee 
would  not  overlook  some  of  the  causes  to  which 
this  Convention  owed  its  existence.  The  lapse 
of  25  years,  and  the  progress  of  knowledge  in  the 
science  of  government,  with  a  more  just  appreci- 
ation of  personal  rights,  had  disclosed  errors  in 
the  fundamental  law  which  demanded  correction, 
and  powers  had  been  exerted  during  that  time- — 
some  of  them  of  very  doubtful  authority,  which 
demanded  restraint  and  limitation.  Amongst  the 
most  prominent  of  these  powers  and  those  which 
excited  the  public  disapprobation  were  the  pow- 
ers of  legislation.  The  power  to  appropriate  the 
public  money — to  create  debt  to  loan  the  public 
credit,  and  to  give  away  the  public  property. — 
His  own  constituents  had,  with  great  unanimity, 
united  in  the  call  for  this  Convention  in  the  hope 
that  this  power,  so  offensive  in  the  manner  of  its 
exercise,  so  destructive  of  the  public  prosperity, 
so  oppressive  upon  the  people  and  their  rights  of 
property,  might  be  limited  and  restrained  and 
placed  in  subjection  to  the  popular  will.  His 
constituents,  he  knew,  would  unite  with  him  in 
the  expression  of  his  surprise  to  observe  that  the 
very  first  report,  which  came  from  one  of  the 
standing  committees  of  this  Convention,  proposed 
to  enlarge  the  authority  of  the  Legislature,  to 
open  still  wider  the  field  of  their  operations  and 
to  mitigate,  if  not  wholly  disarm  the  executive 
of  the  power  of  the  veto.  The  committee  pro- 
posed that  a  bill  upon  which  the  Governor  had 
placed  his  negative,  should  become  a  law  upo*n 
the  vote  of  a  bare  majority  of  the  next  Legisla- 
ture, while  the  amendment  of  the  gentleman 
from  Onondaga  (Mr.  RHOADES)  proposed  that 
it  should  become  a  law  if  it  could  command 
a  majority  of  the  two  houses  that  passed 
the  biH.  Both  these  propositions  had  his  un- 
qualified dissent.  Has  the  exercise  of  the  Exec- 
utive veto  been  detrimental  to  the  public  inte- 
rests, either  here  or  at  the  seat  of  the  general  go- 
vernment ?  It  has  not.  Public  sentiment  has 
been  in  singular  harmony  with  its  exercise  for 
the  last  15  years.  On  no  question  has  the  opin- 
ion of  the  people,  been  so  resolute — he  might  say 
so  unanimous — as  those  to  which  he  would  now 
refer.  Gen.  Jackson  during  his  first  term  inter- 
rupted the  bill  to  aid  in  the  construction  of  the 
Maysville  road.  The  general  government  at  that 
time  proposed  to  take  into  its  own  hands  the 
power  to  construct  roads,  canals  and  other  public 
works,  throughout  the  various  States  and  Terri- 
tories of  the  Union.  Bills  appropriating  more 
than  one  hundred  millions  of  dollars  for  works  of 
internal  improvement,  were,  at  the  date  of  the 
President's  Veto  lying  upon  the  tables  of  the 
members  of  Congress.  Had  the  government  suc- 
ceeded in  obtaining  a  firm  hold  oi  this  power — to 
say  n®thing  of  the  waste  of  public  treasure — it 
would  have  been  fatal  to  the  rights  of  the  States, 
if  not  to  the  perpetuity  of  the  Union.  To  the 
courage  and  resolution  of  the  President,  coupled 
with  the  Veto  power,  does  the  country  owe  its  es- 


cape from  so  great  a  calamity.  In  1832,  Gen. 
Jackson  again  interposed  the  Executive  authori- 
ty, between  the  people  and  the  re-charter  of  the 
Bank.  The  propriety  of  that  act  was  distinctly 
brought  before  the  people  in  the  fall  of  that  year. 
It  was  th.e  only  issue  made  at  the  election,  and  the 
people  of  the  Union  with  a  degree  of  unanimity, 
never  before  witnessed,  confirmed  the  act  of  the 
President.  His  own  constituents  then,composing 
the  electors  of  the  6th  Congressional  District — a 
people  remarkable  for  their  attachment  to  demo- 
cratic doctrines  and  sound  principles  of  administra- 
tion— signified  their  approbation  by  a  majority  of 
more  than  1200  votes.  Never  before  was  the  pub- 
lic judgment  so  determined  and  unanimous  as  up- 
on that  memorable  occasion.  In  the  summer  of 
1841,  the  person  then  administering  the  Govern- 
ment at  Washington,  placed  his  Veto  on  the  Bill 
to  re-establish  the  Bank  of  the  United  States,  un- 
der a  new  name,  which  is  not  now  in  my  memory. 
[Voices  from  members — "Fiscal  Agent."]  This 
was  one  of  the  very  few  acts  of  that  administra- 
tion which  commanded  the  approbation  of  the 
country,  and  the  only  act — he  might  say  — tor  which 
it  would  be  gratei'ullv  remembered  by  posterity. — 
In  May,  1S45,  the  present  chief  magistrate  of  the 
Slate  was  constrained  by  a  sense  of  his  public 
duty  to  the  people  of  the  Stale,  to  withhold  hi& 
assent  from  the  "Act  in  relation  to  the  Canals." 
It- was  not  his  purpose  to  furnish  the  Committee 
with  a  history  or  a  commentary  upon  the  cir- 
cumstances attending  that  transaction.  It  would 
answer  all  the  objects  of  this  aigumerit,  to  say, 
that  the  Executive  Veto  was  wisely  exerted  in 
favor  of  maintaining  oneot  the  soundest  measures 
ot  finance,  ever  adopted  in  this  country — in  tavor 
of  the  rights  of  the  public  credit,  and  o'  preserv- 
ing unsullied  the  public  faith  and  honor.  Such 
he  would  confidently  say7  was  the  opinion — the 
almost  unanimous  opinion — ot  his  own  conslitu^ 
ents,  and  such  he  had  every  reason  to  think  was 
the  opinion  of  a  large  majority  ot  the  people  of 
the  State.  Finding  that  the  public  judgment 
whenever  it  had  been  pronounced,  concurred  with 
his  owny  upon  the  w  sdom  of  retaining  the  Veto 
Power,  he  should  therefore  resist  to  the  extent  of 
his  ability,  all  attempts  to  take  it  out  of  the  Con- 
stitution, or  to  qualify,  or  impair  its  influence  by 
the  introduction  of  new  limitations. 

Mr.  W.  B.  WRIGHT  said  :  I  voted  the  other 
day,  when  the  question  in  relation  to  the  quali- 
fications for  governor  was  under  consideration,  to- 
strike  out  the  section  imposing  restrictions. — 
Practically  I  did  not  deem  the  question  of  much 
importance,  but  a  principle  seemed  to  me  to  be 
involved  in  it  to  which  I  could  neither  subscribe 
nor  entertain.  I  did  not  consider  myself  as  com- 
ing here  to  propose  restrictions  either  on  popular 
sovereignty  or  delegated  power,  unless  experience 
and  the  history  and  career  of  representative  de- 
mocracy had  fully  demonstrated  to  me  that  there 
was  a  stern,  necessity  to  do  it.  I  am  in  favor  of 
the  amendment  of  the  gentleman  from  Onondaga 
(Mr.  RHOADES)  and  I  may  say  in  imitation  of  the 
gentleman  from  Orange  (Mr.  BROWN)  that  if  there 
wras  any  particular  feature  in  the  present  Consti- 
tution, more  than  any  other,  to  which  the  people  I 
have  the  honor  to  represent  expressly  dissent,  it 
was  this  two- thirds  provision.  We  are  all  im-. 
pressed  with  the  belief  that  a  system  of  guards 


331 


and  checks  upon  delegated  power  is  of  vital  im- 
portance in  a  representative  government,  but  they 
should  be  so  arranged  as  to  be  of  practical  utility, 
and  consistent  with   the  genius  and  spirit  of  the 
government  itself.     Now  no  man  will  contend  in 
this  enlightened  age,  and  with  our  experience  of 
half  a  century  on  the  subject  of  self-government, 
that  the  Executive  should  possess  a  direct,unqual- 
ified  negative  upon  the   acts  of  the  legislature, 
for  that  would  be  for  the  time   being  to  invest  a 
single  individual  elevated  by  the  popular  will, 
with  the  power  of  a  despot.     Nor  will  it  be  con- 
tended that  that  universally  admitted  and  usually 
safe  rule  that  the  majority  should  govern,  should 
by  any  system  be  abrogated,  unless  a  stern  neces- 
sity demonstrated  its  wisdom.     Nor  should  a  sys- 
tem of  balances  and  checks  clothe  a  department 
of  the  government  with  a  power,  which  from  its 
odious  character,  or  from  any  other  cause,   was 
not  of  practical  utility  because  rarely  exerted,  or 
was  expected  to  be  rarely  exerted.     This  section 
as  reported  by  the  committee,  practically  propos- 
ed to  do  all  of  these  things,  and  to  my  mind  it  is  but 
another  exemplification  of  the  truth,  that  howev- 
er enlarged  or  liberal  our  views  and  democratic 
feelings,  and  our  sentiments,  there  is  a  magic 
clear  in  precedent,  and  that  many  look  upon  even 
errors  with  complacency,  if  it  but  have  the  dust 
of  .antiquity  upon  it.  Suppose,  this  system  of  Ex- 
ecutive negation  upon  legislative  action  was  now 
broached  for  the  first  time,  after  an  experience  of 
seventy  years  in  representative  democratic  gov- 
ernment, who  of  us  would  stand  forth  here  to  ad- 
vance the  principle,  even  so  far  as  the  committee 
here  had  goue.     I  venture  to  say  no  one.     Yet  it 
may  be  because  this  anti-republican  principle  is 
found  hi   the  Constitution  of  the  United  States, 
and  in  other  states  of  the  union,  and  perhaps  has 
done  no  essential  harm,  that  a  majority  of  the  com- 
mittee will  say  let  it  remain.   I  am  not  one  of  those. 
It    it  had    never    had  been    exercised    from    the 
foundation  of  tne    Government,  I    would  place  it 
out  of  the  reach  of  ihe   Executive,  what  is  in  et 
feet  an  unqualified  negation  upon  the   acts  of  an- 
other branch   of  the    Government.       I  would   dc 
this,  because  it  is  inconsistent  with  the  genius  and 
•spirit   of    republican    institutions,    and    directly 
against,  the  salutary  rule  that  the  majorily  should 
govern,  and  lodges  omnipotent  power  in  the  hands 
of  cne  man,  upon  the  action  of    the  people's  rep- 
tatives,    who  best    know  the  will  ot  the  peo- 
ple they  represent.     I  know  that  it  is    said  lobe 
but  a  qualified  negative..      This   is  true  in  words 
but  in  effect,  it  is  as  all  must  see,  unqualified.     It 
the   experience  of   legislation,  in  how   many  in 
stances  in    this    State,  or     any  ether,    have  two* 
thirds  of    both  houses  been  obtained   for  the  pas 
sage  of  a  bi4l  negatived  and    teturned  by  the  Guv 
ernor   with  his  objections?       The   instances  are 
rare  wherein  two-thirds  of  the   Legislature    have 
had  the  boldness  and  firmness   to  stand  up  agains 
the  action  of  the  Executive.     Whilst  parties  exi- 
and  the  Governor  is  the  acknowledged  leader  am 
head  of  one  or   the  other  of  them,   ins  power  an< 
influence  can    at  all   times  prevent   such  a  result 
unless  it   might  be  the  case  ot  a   charter  of  a  cor 
poration,    where    peculiar    influences   have  beei 
brought  to  bear  upon  (he  legislature,  and  then  (h 
.chances  are  thai  similar  appliances  have  been  ex 
tended  to  the  Executive.    PracticaJ.lv,  therefore 


ic  negative  proposed  is  an  unqualified  one.      In 
inety-nine  cases  out  of  a   hundred,  the  power  of 
despot  would  be  successfully  exerted.     Yet  a 
reposition  to  confer   directly  upon  an    individual 
power  thus   successfully    exercised    indirectly, 
•ould  perhaps  be  scouted  at  by  the  committee. — 
efore  we  adopt  the  two-third  provision    reported 
y  the  committee,  let  us   see  that  we  did   not  act 
ncorisistently  in   another  particular.       The   uni- 
ersal  sentiment  seemed  to  be  that  too  much  pow- 
r  is  now  lodged  in  the  hands  of  the  Expcutive. — 
And  yet  while  you  are  stripping  him  of  the  power 
f  dispensing  office    and  place,   you    would   still 
eave  in  his  hands  a  power  above  and   beyond  the 
^egislature — a  power  to  overrule   and  restrict  the 
avv  making  power— a  power  which  in   its  scope 
nd  influence  is   infinitely  beyond  that   of  confer- 
ing  office    and    place  on    the    scycophants  who 
!ance  attendance   around  the  throne.     And  when 
•ou  can  see   danger   and  compulsion    in  the   dis- 
tensation    of  favors  or   rewards  to  favorites,  you 
an  see  no  danger  whatever  in    the  exercise  of  a 
tower  akin  to    that  which  has  enabled  despots  to 
onvert  men  into  slaves  in  every  age  of  the  world. 
The  proposition  requiring    a  two-thirds   vote    to 
:ounteract    the    effects    of    an    Executive    neg- 
tive,   is    also   inconsistent    with  that    safe    rule 
n  a  representative    democr.icy  that  the   majority 
hould  govern,  whether  exercising  elementary 
lovereignty,  or  delegated  power — and  in  my  judg- 
ment, in  no  position  of  delegated    authority  can 
't  be  more  safely  exercised  than   in  the'Legisla- 
ure,  more  especially  as  it  is  proposed  by  district- 
ng  the  State,  to  break  up  even  the  chance  of 
combination  for  corrupt  purposes.     One  branch 
of  it  comes  annually  from  the  people,  the  other, 
is  is  proposed,  simultaneously  with  the  Execu- 
tive ;  and  each  member  is  elected  in  his  district 
as  a  part  of  the  law  making  power.    From  their 
jroximity  to  the  constituent  body,  they  are  sup- 
Dosed,  and  with  reason,  to  best  understand  the 
eelings  and  views  of  the  constituency  they  rep- 
resent, and  they  come  to  these  halls  with  the  pop- 
ular confidence  freshly  stamped  upon  them.    Al- 
though each  representative  is  in  some  sense  a 
representative  of  the  entire  State,  yet  they  are  re- 
arded  and  regard  themselves  as  the  more  imme- 
iate  representatives  of  the  constituency  that  elects 
them.     It  must  be  apparent  then,  that  unless  we ' 
abandon  entirely  the  idea  of  human  integrity, 
no  bill  can  be  passed   through    the   Legislature 
by  a  majority  of  all  the  members  elected  in  both 
branches,  without  peculiar  merit.     But,  were  it 
otherwise,  a  majority  of  the  people,  acting  thro' 
their  representatives,  have  for  the  time  sanctioned 
it,  and  unless  in  contravention  of  those  great  natu- 
ral unalienable  rights,  endowed  by  the  Creator  on 
man,  and  which  no  human  government  can  right- 
ly subvert  the  exercise  of,  who  will  say  that  in 
this,  as  in  the  exercise  of  elementary  and  delega- 
ted power  in  other  cases,  the  majority  should  not 
govern  ?     But  what  would  be  the   effect  of  the 
proposition  of  committee  No.  5,  and  of  this  sec- 
tion ?    A  bill  passed  both  branches  of  the  Legis- 
lature— it  is  returned  by  the  Governor  with   his 
objections — the  popular  branch  may  reconsider 
and  pass  it  unanimously — it  may  require  but  one 
vote  to  have  secured  two-thirds  in    the    other 
branch,  yet  it  is  lost.     The  law,  however  saluta- 
ry, is  rejected — the  legislative  arm  is  paralyzed 


332 


by  the  potency  of  the  one  man  power.  It>  is  not 
enough  that  one  branch  of  the  legislature  shall 
act  as  a  restriction  or  check  upon  the  excesses  of 
the  other,  but  the  Executive  arm  must  intervene 
to  save  the  people  from  their  immediate  repre- 
sentatives— in  truth,  to  save  the  people  from 
themselves !  I  know  that  a  principal  reason  as- 
signed for  lodging  this  dangerous  power  with  the 
Executive  is,  that  the  legislative  department  may 
through  excitement,  haste,  inadvertence  or  de- 
sign, lend  itself  to  the  passage  of  bad  laws !  But 
if  a  case  can  be  conceived  in  which  a  majority  of 
the  legislature  shall  so  far  forget  their  duty  and' 
responsibility  to  their  constituents,  as  to  trifle 
with  or  sacrifice  the  great  interests  entrusted  to 
them,  and  defy  and  despise  the  popular  condem- 
nation, certain  speedily  to  visit  them,  what  secu- 
rity is  there  that  a  single  individual,  not  so  im- 
mediately or  so  directly  responsible  to  the  peo- 
ple, will  not  partake  of  similar  feelings?  What 
shall  exempt  him  from  the  same  infirmities  ? — 
May  not  corruption  or  excitement  assail,  aye, 
more  easily  assail,  one  than  twenty,  or  fifty  or  an 
hundred  ?  But  the  proposed  amendment  guards 
against  hasty  and  inconsiderate  legislation.  It 
proposes  to  give  time  for  excitement  to  subside, 
and  calm,  deliberate  reflection  to  intervene — it 
goes  further,  and  asks  that  the  legislature  shall 
deliberately  consider  the  objections  of  the  Exe- 
cutive. The  amendment  provides  that  no  bill 
can  become  a  law  until  it  has  been  presented  to 
the  Governor — he  may  return  it  with  his  objec- 
tions, and  then  should  a  majority  of  all  the  mem- 
bers elected  to  both  houses  solemnly  reconsider 
and  approve  it,  it  shall  be  a  law  notwithstanding 
the  objections.  The  same  formality  and  delibe- 
ration is  required  under  the  amendment  of  the 
gentleman,  as  in  the  section  reported  by  commit- 
tee No.  5.  The  Legislature  will  not  only  have 
time,  but  the  benefit  and  influence  of  the  Gover- 
nor's objections,to  allay  excitement,  correct  inad- 
vertence,and  stifle  culpable  design.  It  is  an  axiom 
of  free  government,  that  the  departments  of 
p0wer — the  executive,  legislative  and  judicial — 
should  be  kept  separate  and  distinct — that  to 
mingle  them  together  would  be  attended  with 
danger  to  the  government — that  in  proportion 
as  they  were  mingled  together,  would  be  destroy  - 
.  ed  the  checks  and  balances  of  each  upon  the 
'  other,  necessary  to  keep  up  the  system.  — 
In  this  point  of  view  the  Executive  negation 
upon  legislation  has  ever  seemed  to  me  to  be  an 
anamoly.  I  am  aware  that  it  is  said  there  is  a 
tendency  in  the  legislative  department  to  grasp  the 
powers  of  the  other  departments,  and  to  subject 
them  to  their  control— that  they  might  humble 
the  Executive  by  diminishing  his  salary,  or  break 
up  the  courts,  by  withholding  the  compensation 
of  the  judges.  But  so  far  as  the  Executive  is  con- 
cerned, the  committee  had  already  provided 
against  a  contingency  of  this  character,  in  the 
amendments  to  the  fourth  section  of  the  report, 
which  places  it  out  of  the  reach  of  their  power  to 
'increase  or  diminish  his  salary  during  his  continu- 
ance in  office,  and  I  have  no  doubt  that  a  similar 
provision  will  be  made  in  relation  to  the  judges. 
The  principle,  that  a  majority  of  all  the  members 
elected  to  the  legislature  may  pass  a  bill  notwith- 
standing the  objections  of  the  Governor,  is  not  a 
novel  one.  It  is  a  prominent  feature  in  ten  of  the 


Constitutions  of  our  sister  states.  It  was  incor- 
porated into  the  Constitution  of  Kentucky  in 
1799;  into  that  of  Indiana  in  1816;  into  those  of 
Illinois  and  Connecticut,  in  1818;  into  that  of 
Alabama,  in  1819 ;  into  those  of  Vermont  and  Ar- 
kansas in  1836;  into  that  of  Florida  in  1838;  in- 
to that  of  New- Jersey  in  1844;  and  into  that  of 
Missouri  in  1820,  and  re-adopted  in  1846.  Be- 
sides a  more  liberal  rule  also  prevails  in  eight  of 
the  states :  In  Tennessee,  Ohio,  Virginia,  Rhode 
Island,  Delaware,  Maryland,  North  Carolina  and 
SouthCarolina,they  have  repudiated  the  executive 
negation  in  any  form.  Virginia  repudiates  the 
doctrine  of  Executive  negation  in  any  form,  and 
although  a  distinguished  member  of  the  Conven- 
tion of  1821  confidently  expressed  the  opinion 
that  she  would,  on  a  remodelling  of  her  organic 
law,  embrace  the  principle,  yet  a  Convention  as- 
sembled in  1830  again  repudiated  it.  Little  Rhode 
Island  also  repudiates  the  principle,  a  state  which 
it  has  been  exceedingly  fashionable  recently,  in 
certain  quarters,  to  denounce  as  anti-democratic,, 
and  as  governed  by  "  JLlgerines."  I  am  aware, 
that  committee  No,  5  can  appeal  to  precedent  to 
justify  the  insertion  of  the  two-third  provision  in 
their  report.  The  error,  if  error  it  be,  is  rendered 
venerable  by  age.  As  had  been  remarked  by  the 
gentleman  fromOrange,the  power  of  executive  ne- 
gation has  ever  been  a  prerogative  of  the  King  of 
Great  Britain,  in  its  direct,  unqualified  form.  In 
the  early  period  of  our  existence  as  a  free  people, 
it  was  incorporated  into  the  Constitution  of  Mas- 
sachusetts in  the  form  now  proposed  by  commit- 
tee No.  5 — from  thence  it  was  engrafted  upon  the 
Constitution  of  the  Union,  and  it  is  now  a  distin- 
guishing feature  of  several  of  the  Constitutions  of 
the  old  thirteen  states ;  and  yet  all  of  these  in- 
struments declare  the  supreme  power  to  be  in 
the  people,  and  all,  if  not  in  terms,  do  in  spirit, 
disavow  this  one  man  power.  The  principle 
was  also  engrafted  on  our  old  Constitution  in  1821  f 
by  the  instrument  then  adopted.  Previous  to  that 
the  same  power  had  been  exercised  by  a  council,, 
consisting  of  the  Governor,Chancellors  and  Judges 
of  the  Supreme  Court,  which  was  transferred  to 
the  Governor  alone,  and  although  I  may  admire 
the  wisdom  which  induced  that  body  to  remove 
the  judiciary  from  the  political  arena,  yet  I 
cannot  equally  admire  the  wisdom  which  yielded 
up  a  majority  of  the  legislature— the  law-making 
power — to  the  caprice  of  a  single  individual.  The 
principle  I  look  upon  as  correct  is,  that  in  fram- 
ing the  fundamental  law,  it  is  proper  and  right 
to  look  to  example  where  no  great  principle  is 
violated ;  but  in  this  enlightened  period  in  the 
history  of  self-government,  charged  as  the  Con- 
vention were,  with  the  grave  and  important  duty 
of  preparing  and  submitting  to  the  adoption  of 
the  people,  a  plan  of  government  which  should 
secure  the  greatest  sum  of  human  freedom  con- 
sistent with  the  safety  of  society,  gentlemen 
ought  to  be  well  assured  before  they  become  firm- 
ly wedded  to  a  principle,  that  it  is  not  only 
founded  in  wisdom,  but  is  in  consonance  with 
the  great  principle  to  be  attained.  Now,  I  sub- 
mit whether  we  should  blindly  adhere  to  prece- 
dent, and  disregard  all  experience  on  the  subject. 
As  time  rolls  on, men  grow  wiser  so  tar  as  the  sci- 
ence of  government  is  concerned.  At  least  hu- , 
man  rights  come  to  be  better  understood  and  their 


333 


area  extended.  It  is  by  no  means  certain  that  if 
the  illustrious  mep  who  framed  the  Constitution 
of  the  Union,  with  our  experience  and  progress 
in  self-government,  were  called  upon  to-day  to 
discharge  that  duty,  they  would  recommend  for 
the  popular  adoption,  the  Executive  veto  power. 
It  is  well  understood  that  many  of  those  distin- 
guished men  were,  at  the  time,  disposed  to  give 
extraordinary  powers  to  the  Executive  whilst 
others  dreaded  legislative  interference  with  the 
rights  and  powers  of  the  other  departments  of  the 
government;  experience,  however,  had  shown 
that  it  required  not  this  shield  to  the  Executive, 
and  that  instead  of  that,  the  people  have  had  in 
numberless  instances,  reason  to  deplore  Execu- 
tive encroachment.  The  Constitution  of  the 
United  States  was  adopted  as  a  compromise,  not 
only  between  the  people  of  the  different  sections 
of  the  Union,  but  also  between  the  States.  The 
smaller  States  might  well  require  the  Executive 
arm  to  be  strong  enough  to  shield  them  against 
the  majority  of  the  larger  and  more  populous 
States.  I  have  alluded  to  the  Constitution  of  the 
United  States,  and  the  circumstances  under  which 
it  was  formed,  for  the  reason  that  in  my  opinion, 
the  sanction  which  that  instrument  gives  to  this 
two-third  provision,  had  done  more  than  any  cir- 
cumstance to  lead  to  the  adoption  of  a  similar  prin- 
ciple by  many  of  the  States.  The  committee,  who 
made  this  report,  whilst  they  retain  the  two-third 
provision,  introduce  an  amendment  to  the  exist- 
ing Constitution  recognizing  in  part  the  principle 
for  which  I  contend.  Although  two-thirds  are 
required  to  pass  a  bill  after  it  has  been  vetoed, 
yet  the  roxt  legislature  may  pass  it  by  a  ma- 
jority. Now  the  justness  of  the  principle  that 
a  majority  shall  in  any  case  interfere  to  pre- 
vent the  introduction  of  the  Executive  nega- 
tive, being  recognized,  why  not  introduce 
the  principle  at  the  threshhold,  in  all  cases  ? 
'Can  it  be  that  the  committee  moved  by  the  magic 
charm  of  precedent,  dreaded  boldly  to  present 
the  innovation  ?  And  will,  by  the  same  influ- 
ence, the  convention  be  deterred  from  imposing  it 
in  the  orgaic  law?  I  hope  not.  I  know  not 
what  will  be  the  action  of  a  majority  of  the  com- 
mittee, but  for  my  own  part  I  will  never  consent 
by  my  vote  to  vest  the  Executive  with  the  power 
of  arbitrarily  opposing  the  popular  will,  as  ex- 
pressed through  their  immediate  representatives, 
and  of  blocking  the  wheels  of  legislation  when  it 
shall  to  him  seem  expedient.  I  will  go  as  far  as 
any  man  to  clear  these  halls  from  corruption,  by 
breaking  up  that  great  source  of  it,  official  patron- 
age, and  special  legislation,  but  I  will  never 
consent  to  place  an  omnipotent  power  over  a  ma- 
jority of  the  people's  representatives.  In  any 
.government,  the  investure  and  exercise  of  the 
one  man  power  is  dangerous  to  human  li- 
berty ;  but  in  a  government  like  ours,  found- 
ed upon  popular  sovereignty,  it  is  not  only 
dangerous.,  but  diametrically  opposed  to  its  ge- 
nius and  spirit.  Aside  from  principle,  there 
was  not  that  man  on  earth,  upright  and 
and  pure  as  he  might  seem  to  be,  to  whom  I 
would  entrust  a  power,  so  supreme;  but, 
npon  principle,  holding  as  I  do,  to  the  sovereign- 
ty of  numbers,  it  would  not  only  be  improbable, 
but  impossible  that  I  should  do  it.  I  can  never 
consent  to  incorporate  in  the  Constitution  of  the 


State,  a  principal  so  repugnant  to  all  idea  of  pop- 
ular freedom — so  despotic  in  its  character,  that 
even  in  England,  where  the  prerogatives  of  the 
Crown  are  in  most  cases  respected  and  exercised, 
no  sovereign  has  ventured  to  exercise  it  for  more 
than  a  century.  It  may  be,  and  had  been 
said  by  gentlemen,  that  this  power  had  not 
been  abused,  but  what  security  was  there 
that  it  would  not  be.  When  was  our  legisla- 
ture ever  converted  into  an  excited,  unre- 
strained mob,  impelled  solely  by  impulse  and 
passion,  without  reflection  or  deliberation  ? — • 
Yet  the  advocates  of  this  two-thirds  provision, 
find  reasons  for  its  adoption  in  the  supposition 
that  such  a  state  of  things  may  arise.  The  prin- 
ciple is  either  right  or  wrong.  If  right,  retain  it, 
if  wrong  it  should  be  expunged.  I  would  ex- 
punge it  for  the  mischief  it  may  do.  I  am  there- 
fore in  favor  of,  and  shall  cheerfully  give  my  vote 
for  the  amendment  of  the  gentleman  from  Onon- 
daga,  who  sits  before  me,  (Mr.  RHOADES.) 

Mr.  STETSON  believed  that  it  would  be  found 
that  the  remarks  of  the  gentleman  from  Sullivan 
(Mr.  WRIGHT)  were  exceedingly  specious.  He 
asserts  the  principle  that  the  majority  should  go- 
vern ;  to  that  Mr.  S.  yielded  his  assent.  But  he 
would  ask  him  how  govern — when  govern — for 
what  and  how  long  govern  ?  Allusion  had  been 
made  to  a  monarchy,  and  heretofore  gentle- 
men had  been  eloque'nt  in  denunciation  of  the 
one  man  power,  but  let  us  not  be  misled ;  let  us 
remember  that  the  worst  of  all  despotisms  was 
that  of  oligarchy.  He  considered  that  a  majority 
of  the  legislature  should  govern  in  its  legitimate 
sphere,  and  for  the  purposes  intended,  that  is  by 
faithfully  representing  the  will  of  the  people  ;  but 
not  to  load  down  for  all  coming  time,  by  one  single 
act,those  who  came  after  them.  If  that  was  the 
will,  gentlemen  in  getting  rid  of  a  monarchy 
would  introduce  a  more  odious  oligarchy,  and  in 
that  was  the  specious  character  of  the  gentleman's 
remarks.  He  denied  that  it  was  adverse  to  the 
principle  that  a  majority  should  govern,  to  vest 
in  the  Governor,  the  representative  of  the  whole 
people,  the  power  to  check  the  action  of  the  le- 
gislature, in  cases  where  he  believed  there  had 
been  collusion  between  the  two  branches.  Did 
the  legislature  never  do  wrong  ?  In  old  coun- 
tries it  was  maintained  that  the  King  could  do  no  • 
wrong,  but  they  would  not  venture  to  imply  that 
of  our  Executive.  But  the  remark  that  the 
majority  was  always  right  in  every  given  case  was 
equal  to  that  monarchial  doctrine — as  applied  to 
the  legislature.  He  knew  that  it  was  proposed 
to  restrict  legislative  power,  but  was  there  not  a 
large  field  where  human  foresight  could  not  reach 
the  evils  through  a  Constitution  and  when  le- 
gislation might  bind  all  posterity  irrevocably 
through  the  influences  of  politicians,  and  the 
combination  of  localities.  What  is  there  in 
the  present  Constitution  to  prevent  a  mere  ma- 
jority in  the  legislature  from  pledging  the  pro- 
perty of  the  State  for  millions  untold  and  uncount- 
ed? This  was  safe  enough  with  the  mass  of  the 
people  and  in  the  will  of  its  majority  he  would 
trust,  but  not  in  that  of  a  mere  temporary  depo- 
sitory of  delegated  power,  of  no  higher  authority 
so  far  as  respected  the  source  of  power,  than  the 
governor.  The  gentleman  was  under  a  delusion 
when  he  assumed  that  the  delegates  of  power 


334 


were  the  people  themselves  and  their  sole  rep- 
resentatives. He  confounded  the  legislature  with 
the   people.     What  was  the   governor,   and  by 
whom  was   he  elected  ?     Was  he  not  the  repre- 
sentative   of  the    people,   and  was   it  not  their 
united  voice  that  put  him  there.     The  legislature 
represented  an  aggregation  of  localities,  and  not 
the    whole    people  themselves.     This    qualified 
veto    power   in  the   hands   of  the  governor,  the 
representative  of  the  whole   people  and  respon- 
sible to   them,  was  their   protection  against  the 
..acts  of  a  majoritv  of  the   legislature — the  aggre- 
gation of  localities.     But  the  gentlemen  had  as- 
sumed  that  it  was  an   unqualified  veto.     And 
why  ?     Because   no  instances  had  come   to  his 
knowledge,    where    two-thirds    of   the  legisla- 
ture have   been  found   to  overrule   the  Execu- 
tive Veto.     This   was   an   assumption  that  they 
ought  to    have  been  overruled,  and    in  answer  to 
that,  he    would    refer  him  to  the  argument  of  the 
gentleman    from  Herkimer  (Mr.  LOOMIS.)      Let 
him  show  an  instance  where   the  people  had  not 
approved  of  its  exercise.     To  adopt  the    amend- 
ment   of  the    gentleman    from    Onondaga    (Mr. 
RHOADES)  and  leave  it  to  the  majority  of  the  Leg 
islature  to  overthrow  the  Veto  and  re-affirm  their 
own  acts,    would    be  to    destroy    the   Executive 
negative  entirely.     The    gentleman  had  referred 
to  England    and  had    said  that    even    there,  the 
sovereign    had    never   ventured  to    exercise  the 
veto  power.       But  a  greater    power — that  of  pro 
roguing     parliament,   after  the  passage    of  a    bill 
through  the   Commons  and  before  it  reached   the 
Lords,  was  often  exercised.     Reference  had  -also 
been    made     to    the  United    States  Constitution 
on    this    point,    but     he    warned   gentlemen    on 
this    and    the  other   illus-tration  not    to    be  mis- 
led by  false  analogies.     The  veto  power  should 
be  considered  in  reference  to  the  tenure  of  office  of 
the    legislature   and    the    Executive,    and    the 
means    of   popular    correction,  should  an   error 
occur.     In  the  United  States  Government  both  the 
Legislature  and  the  Executive  power  was  stron- 
ger than  it  is  here.     The  President  held  his  office 
for  four  years,  the  members  of  the  House  for  two 
years  and  the  senators  for  six.     What  might  there 
be  an    objection  then    would    not    be    here. — 
Their    appeals  to    the    people,   the'  source    of 
power  were  not  so  frequent.     One  object  and  de- 
sign of  the  veto  power,  was  to  interpose  between 
misguided  legislation  and  tiie  people  themselves, 
for  the  latter.     When  the  Executive  ventures  up- 
on a  negative  of  the  legislative  acts  he  as  well  as 
the  latter  trusted  to  the  people,  who  was  the  um- 
pire between  them.     They  might  approve  of  it 
or  they  might  not,  but  let  not  gentlemen  under- 
take to  put  this  security  beyond   all  reach  by  at- 
tempting to  make  it  one-sided.     Independent  ol 
that,  as  regarded  Congress, its  members  represen- 
ted different  states  and  were  elected  at  different 
times,  some  of  them  one  year  before  they  took 
their  seats,  and  therefore  there  was  little  resemb- 
lance between  them  and  the  legislature,  who  were 
annually  responsible  to  the  people.     The  gentle- 
men mistakes  the  legislature  for  the  people — that 
was  his  delusion.     The  question  was  finally  to  be 
decided  by  the  people,    the    source  of  power 
who  would  put  both  the  Governor  and   the  le 
gislature    right,  if  wrong.     What  is    the   occa 
sion  (Mr.   S.)  asked  for  a  change — what  grea 


ublic    mischief  had    called   for  action   against 
\ny  supposed   evil  arising  from  the  exercise   of 
;lie  veto    power  ?     It  had  only    been   exercised 
n   this   State  to  preserve  the   public  from  im- 
)ending  debt,   and  who  would  complain  of  that  ? 
And  let  gentlemen   remember  there  was  a  dis- 
inction  between    DEBT    and    REVENUES.     The 
gentleman    from     Onondaga,    (Mr.     RHOADES) 
lad  called    up    the  political  prejudices  of  this 
Convention    in    his   allusions    to    the    exciting 
:imes  of  the  bank  veto,  but  he,  (Mr.  S.)  would, 
isk  if  it  had  not  met  the  general  acceptance   of 
the  people  ?     But  the  gentleman   had  been   an- 
swered fully  by  the   gentleman   from  Herkimer 
(Mr.  LOOMIS).     They  were  approved  by  the  peo- 
}le,   and  he  would  ask  whether   at  this  day,  it 
was  so  much  the  fear  of  another  veto,  as  it  was 
the   fixed    popular    opinion    against    any   such 
nstitution   that    prevented  any    attempt  to   in- 
corporate a  U.   S.  Bank.     He    hoped  that  this 
amendment    would    be    voted    down,    and  also 
the  proposition  of  the  committee  which   threw 
aver   to    the    next    legislature  the   exercise    of 
this  power.     He  believed  that  more  evils  would 
engendered  out    of   that    proposition     than 
almost  any  other  conceivable   form.     Its  effect 
would  be  to    crowd  matter   that  the   Governor 
might    veto — any    bills    which,    though    rotten 
at     the  bottom,  was   plausible    on   its  surface, 
and    which  if  well  considered  by  the  legislative 
body  would    fail — into  the  heel    of  the   session, 
that  great   source  of  iniquitous   legislation — with 
a  view  to  evade   the  two-thirds,  requiied  for  the 
present,  end  encounter  only  the  majority  reconsi- 
deration provided    for   the   next   session.     Such 
Dills  would  be   crowded  in   such  numbers   upoii 
the    Executive  as  to   escape    that  scrutiny  which 
they    should     receive,     and     thus   perhaps     get 
through — or  if  vetoed  by  him,   to  force  a  new  el- 
ement into  politics,  in  getting  up  a  fight  with  the 
Governor — through'  the    disappointed   feeling  in 
locations  where  the  measure  was  a  favorite — per- 
haps from  a  combination  sufficiently  strong  enough 
!o  affect  the  general  result.       But    why  this  con- 
secutive   legislation,   from    session   to  session. — 
What  was  there  now  in  the    present  Constitution 
to  prevent  the  Legislature  from    taking  up    a  ve- 
toe'd  bill  of  the     previous  session,    and  passing  it 
exactly  in    the  form  it    passed  before;    there  was 
nothing.     It    might  be  said    that  the  dread  of  an- 
other veto  would  prevent  it.     It  might  not  be  the 
same    Executive, — but    should  a   second  Legisla- 
ture pass  a  bill  a  second  time,  probably    no  Exe- 
cutive   would  interpose   his    veto    again.       Was 
there  an  instance  of  the  kind    where  the   Gover- 
nor   had  not  yielded      The  amendment  ihen  was 
unnecessary.     Bat  the  Legislature  on  such  occa. 
sions  would  most  likely   incorporate    new  matter 
in  such  a  bill.     Each  legislature  thinking  itself 
a  little  wiser  than  its  predecessors,  would  take  up 
the  old  bill  as  vetoed,   introduce  new  features  in 
it,  and  perhaps  change  its  material  ones.  But  if  it 
was  a  different  bill,   why  should  not  the  Execu- 
tive   be  left    free    to    exercise    the  veto  ?     He 
ardently    hoped— for   the    feelings  of  his    con- 
stituents on   the  subject  were  the  same   as  ; 
described  by  the  gentleman  from  Orange  of  his — 
that  this  old  landmark  of  the  sovereignly  of  the 
people,  for  the  protection  of  themselves — will  not 
be  obliterated  by  the  action  of  this  Convention,— 


He  hoped  that  all  amendments  would  be  voted 
down,  and  the  Constitution  of  1821,  in  this  partic- 
ular be  left  untouched. 

Mr.  l'KX?s  !M.\N  .said  he  had  been  mainly  an- 
ticipated in  the  remarks  he  intended  to  make, 
particularly  in  reference  to  the  constitutional 
provisions  of  other  States,  by  the  gentlemen  from 
Sullivan  and  Onondaga  (Messrs.  WRIGHT  and 
RHOADES,)  and  having  said  this,  it  was  necessary 
that  he  should  say  further,  that  this  was  the  only 
provision  in  regard  to  which  committee  number 
five  were  not  unanimous — the  gentleman  from 
Oswego  and  himself  differing  from  the  rest  of  the 
committee,  he  (Mr  P.)  agreeing  substantially 
with  the  gentleman  from  Onondaga,  and  the  oth- 
er dissenting  member  holding  to  the  existing  con- 
stitution in  this  respect.  Mr.  P.  was  aware  that 
he  might  have  offered  his  views  when  this  articl. 
was  presented,  as  suggested  by  the  gentleman 
from  Ontario  (Mr.  WORDEN.)  Perhaps,  however, 
he  was  right  in  leaving  that  duty  to  the  chairman 
(Mr.  MORRIS.)  But  Mr.  P.  had  one  remark  to 
make  in  answer  to  the  gentleman  from  Ontario, 
who  admonished  him  of  his  egotism  and  his 
praise  of  himself — and  that  was  that  Mr.  P.  was 
profoundly  grateful  for  the  kind  and  gentlemanly 
manner  in  which  he  and  the  Convention  wer'e 
treated  by  that  gentleman — and  wished  to  recip- 
rocate such  kindness.  Mr.  P.  only  wanted  the 
gentleman  to  review  his  own  printed  speech. — 
llu  wanted  the  gentleman  to  understand  it — for 
if  ever  there  was  an  instance  in  which  the  old 
proverb  could  apply — physician  heal  thyself — it 
was  to  that  gentleman.  Mr.  P.  went  on  to  say 
that  the  state  of  his  health  barely  permitted,  him 
to  sit  there  until  now,  and  he  should  be  brief. — 
He  was  decidedly  opposed  to  the  provision  of  the 
old  constitution,  and  measurably  to  the  propo- 
sition of  the  committee  of  which  he  was  one. — 
He  was  decidedly  in  favor  of  the  amendment, 
because  he  held  it  to  be  the  only  true  democratic 
ground  and  doctrine  that  a  majority  of  the  people 
should  govern.  He  held  also  tiiat  a  L.ajority  ot 
the  legislature  for  the  time  being  were  the  people 
virtually,  and  he  was  opposed  to  giving  the  Gov- 
ernor or  any  human  being  on  earth,  a  controlling 
influence  over  the  m,ij<,uly  of  the  people.  This 
provision  o!  the  old  Constitution  made  the  Gov- 
ernor equal  to  two-thirds  of  the  people.  Mr.  P. 
regretted  that  his  friend  Irom  Ouondaga  had  re 
fen  cd  to  certain  measures  in  the  manner  he  had, 
lor  it  had  raised  the  ire  of  certain  gentlemen  to 
a  high  pitch.  But  he  must  be  permitted  to  say 
thbt  there  had  never  been  an  instance  in  his 
recollection,  when  a  prominent  measure  affect- 
ing  the  general  interests  of  the  whole  Union,  or 
a  Sute,  which  could  have  passed  against  a  veto 
by  a  majority  o:  two-thirds.  The  war  measure  ot 
1312,  was  i,  oi  canied  by  two-thirds  and  could 
not  have  been.  Had  it  been  vetoed,  it  would 
have  gone  by  the  board.  So  with  the  tariff.— 
About  the  policy  of  that  measure,  gentlemen  dif- 
feired  no  doubt  from  him.  But  he  spoke  of  it 
only  as  an  important  measure  as  well  to  the  gov- 
ernment as  to  the  whole  countiy.  Bur  thai 
measure  could  not  have  been  carried  by  two-third* 
ihougli  it  h.td  a.  decided  majority  in  its  favor, — 
The  use  he  desired  to  imke  ot  the  circumstance 
was  this.  All  knew  taut  there  wasabill  pending 
in  Cougre*s  to  repeal  that  law.  All  knew  tha 


f  Mr.  Clay  was  President  no  such  bill  could  pass. 
All  knew  that  a  very  slight  change  in  this  State 
>r  in  a  neighboring  state,  would  have  elected  Mr, 

lay.  And  AJr.  P  asset  ted  that  if  Mr.  Clay  had 
lot  written  ton  many  letters,  Mr.  Clay  would 
lave  been  President.  The  abolitionists  of  this 
late  could  alone  have  done  it.  And  if  it  had 
lot  been  for  the  humbuggety  and  huggerrnuggery 
if  nativism,  Mr.  Clay  would  have  been  elected 
Resident. 

Mr.  RHOADES  hoped  the  gentleman,  after  re- 
juking  him  for  alluding  to  Gen.  Jackson's  vetoes, 
ras  not  going  to  canvass  the  whole  campaign  of 
MJ. 

Mr.  PENNIMAN  understood  himself,  if  the 
yentleman  did  not  understand  him.  Other  gen- 
lemen  had  alluded  to  these  matters,  and  had 
raveled  over  party  ground.  But  he  had  no  such 
ntention.  He  simply  took  facts  as  they  existed, 
.rid  the  only  use  he  made  of  them  was  this — that 
he  tariff  bill  could  not  be  repealed  with  Mr.  Clay 
n  the  chair,  and  that  it  was  as  likely  he  should 
)e  then  President  as  any  other  man,  and  that 
without  a  single  alteration  in  the  members  of  Con- 
gress. So  in  our  own  State,  the  facts  showed 
hat  the  bill  for  the  construction  of  the  Erie  Canal 
ould  not  have  become  a  law  but  for  the  fact  that 
;he  veto  power  was  not  in  the  hands  of  the  then 
Governor,  but  in  a  council  of  revision.  And  all 
.hat  saved  the  bill  was  Vice-President  Tompkins 
attending  the  council  and  endeavoring  to  defeat 
he  bill,  and  the  arguments  which  he  used  to  per- 
uade  Chancellor  Kent  to  go  against  the  bill  car- 
ied  him  in  favor  of  it.  The  vote  in  the  Assem- 
>ly  stood  51  to  40;  in  the  Senate  two-thirds  for 
t.  After  controverting  Mr.  BROWN'S  assertion 
hat  the  amount  of  bills  for  internal  improvements 
aying  on  the  table  in  Congress  was  one  hundred 
millions,  Mr.  PENNIMAN  said  the  bills  were  not 
or  construction  only,  but  partly  for  mere  surveys 
and  partly  estimates,  when  the  Maysville  road 
nil  was  vetoed.  Mr.  P.  went  on  to  controvert 
nother  position  of  that  gentleman,  to  the  effect 
that  Gen.  Jackson's  popularity  was  owing  to  his 
veto  of  the  bank  bill — insisting  that  it  was  his 
Dreviously  acquired  popularity  that  carried  him 
through  that  struggle,,  and  that  nothing  but  that 
swayed  down  the  bank.  He  cited  as  an  illustra- 
tion of  the  influence  of  Old  Hickory,  the  alleged 
change  in  the  views  and  course  of  Mr.  Dallas, 
who  he  said,  from  being  an  ardent  bank  man  in 
the  U.  S.  Senate,  was  found  soon  after  at  Phila- 
delphia sustaining  the  veto.  But  to  return  to  the 
question.  True  we  might  cripple  the  Governor 
in  point  of  patronage  by  our  action — but  of  what 
avail  is  this,  when  you  left  him  with  powrer 
equivalent  to  two-thirds  of  the  people.  He  was 
in  favor  of  some  restriction  upon  hasty  legislation 
— but  he  did  insist  that  after  a  bill  had  been  re- 
turned with  objections,  and  those  objections  had 
been  duly  considered,  and  a  majority  of  all  elect- 
ed was  found  to  be  in  favor  of  it,  it  should  become 
a  law,  the  veto  notwithstanding.  In  that  respect 
he  preferred  the  amendment  to  the  section  re- 
ported by  the  committee..  And  he  thought  it  not 
a  little  inconsistent  in  those  who  objected  to  this 
as  crippling  the  power  of  the  Executive,  and  yet 
who  objected  strongly  to  any  restrictions  on  the 
popular  will  in  the  selection  of  a  candidate  for 
Governor.  With  mere  party  politics  he  desired 


356 


not  to  meddle  here — but  he  must  be  permitted 
to  allude  in  conclusion  to  the  course  of  Gen.  Root 
and  Peter  R.  Livingston,  m  the  Convention  of 
1821.  He  believed  they  were  as  sound  and  pure 
democrats,  and  men  of  as  great  sagacity  and  tal- 
ent, as  this  State  had  ever  furnished.  They  took 
the  same  ground  that  the  gentleman 'from  Onon- 
daga  now  did — and  so  did  a  large  portion  of  the 
democrats  in  that.  Convention.  But  the  state  of 
his  health  admonished  him  that  it  was  time  to 
bring  his  remarks  to  a  close. 

Mr.  PATTERSON  would  leave  the  discussion 
of  the  propriety  of  the  previous  exercise  of  the 
veto  power  to  those  who  pleased  to  engage  in  it, 
he  should  speak  only  of  the  practical  operations 
of  the  two  plans  proposed.  The  proposition  as  it 
stands  in  the  report  of  the  committee,  requires 
the  assent  of  two-thirds  of  all  the  members  pre- 
sent to  pass  a  bill  after  its  veto  by  the  Governor. 
The  amendment  proposed  by  the  gentleman  from 
Onondaga  (Mr.  RHOADES)  requires  a  majority  of 
all  elected  to  pass  it.  That  was  the  only  question 
before  the  committee,  and  what  then  would  be 
the  difference  of  the  practical  operation  of  the 
two  ?  A  majority  of  all  elected  to  the  Assembly 
would  be  65,  of  the  Senate  17 — and  this  vote 
would  be  required  to  pass  a  bill  after  its  veto 
by  the  Governor.  The  section  as  reported  by  the 
committee  requires  two-thirds  of  those  present  to 
pass  the  bill.  If  the  House  was  as  full  as  it  usu- 
ally was,  that  would  require  a  less  number  to 
pass  the  bill  than  would  the  majority  provision, 
because  if  the  journals  of  the  Assembly  for 
the  last  ten  years  were  examined,,  it  would  be 
seen  that  the  number  in  attendance  would  not 
average  any  thing  like  one  hundred  mem- 
bers. Sixty-five  was  a  quorum  for  the 
transaction  of  business,  and  two-thirds  of  that 
would  be  but  forty-four.  So  that  under  the  pro- 
vision of  the  section  as  reported  by  the  commit- 
tee, a  case  might  occur  where  forty  members  of 
the  Assembly  and  twelve  of  the  Senate,  could 
pass  a  bill  notwithstanding  the  veto  of  the  Go- 
vernor. If  the  amendment  was  adopted,  it  would 
require  sixty- five  members  of  the  Assembly  and 
seventeen  of  the  Senate,  always — while  this  two- 
thirds  requisition  would  always  present  a  kind  of 
swinging  scale — it  might  be  forty-four  or  it  might 
be  eighty-six — as  the  number  present  might  hap- 
pen to  be,  when  the  question  was  taken.  He  had 
examined  the  journals  of  the  house  during  the 
month  of  March,  and  had  counted  the  number  of 
questions  taken  by  ayes  and  nays — most  of  them 
on  two-third  bills — and  there  were  but  fourteen 
occasions  where  one  hundred  members  were  pre- 
sent— while  in  three  times  that  number  of  in- 
stances, there  was  a  less  number  in  the  house. — 
Virtually,  therefore,  it  would  require  a  larger 
number  on  an  average  to  pass  a  bill  after  its  veto 
under  the  amendment,  than  it  would  under  the 
section  requiring  the  assent  of  two-thirds  of 
those  present.  His  experience,  when  in  the  le- 
gislature, was  different  from  that  of  Mr.  TAYLOR. 
During  the  eight  years  he  was  there,  but  two  bills 
were  vetoed — one  by  gov.  Marcy,and  one  by  gov. 
Seward.  The  gentleman  insisted  that  when  a  bill 
was  vetoed  and  sent  back  to  the  House,  that  the 
members  who  originally  voted  for  the  bill,  are 
likely  to  come  up  to  the  mark  and  vote  for  it 
again.  In  the  case  of  the  bill  vetoed  by  governor 


Seward,  it  was  returned  to  the  Senate,  and  they 
ordered  the  message  to  be  printed,  and  laid  the 
bill  on  the  table,  where  it  lays  yet.  The  one 
vetoed  by  gov.  Marcy,  returned  to  the  Assembly, 
and  the  question  being  taken  whether  the  bill 
should  pass,  it  was  decided  in  the  negative  by  a 
unanimous  vote.  These  were  the  only  two  in- 
stances of  the  exercise  of  the  veto  power,  during 
the  eight  years  that  he  was  in  the  Legislature. 

Mr.  W.  TAYLOR  explained  that  his  proposi- 
tion was,  that  when  a  majority  might  be  able  to 
pass  a  bill,  the  requisition  of  two-thirds  would 
prevent  it. 

Mr.  PATTERSON  repeated  that  two-thirds 
present  might  be  but  forty-four.  That  was  the 
objection  he  had  to  the  proposition,  and  he  pre- 
ferred that  a  definite  number  should  be  required. 
That  could  be  attained  better  by  requiring  the 
vote  of  a  majority  elected,  than  by  two-thirds  of 
those  present.  He  was  not  opposed  to  the  veto 
power — he  was  satisfied,  from  experience,  that  it 
had  generally  been  exercised  only  when  proper 
— and  the  result  had  shown  most  conclusively 
that  when  bills  had  been  returned  that  the  mem- 
bers were  satisfied  that  they  ought  not  to  pass. 
He  preferred  the  amendment,  for  the  reason  he 
had  stated. 

Mr.  MANN  was  opposed  to  this  amendment 
and  in  favor  of  the  original  section  with  some 
slight  amendment,  which  he  proposed  to  offer  af- 
ter the  pending  question  was  disposed  of.  He 
proposed  to  adopt  the  section  of  the  present  con- 
stitution amended  so  as  to  require  the  vote  of 
two-thirds  of  those  elected  instead  of  present. 

Tiie  CHAIR  said  the  gentleman's  amendment 
was  now  in  order. 

Mr.  CLYDE  said  that  the  gentleman  had  antici- 
pated him.     He  had  an  amendment  to   propose 
which  adopted  Mr.  C.'s  amendment  in  substance 
was  the  same  as  that  proposed  by  Mr.  MAXN. 
The  CHAIR  said  it  was  not  strictly  in  order. 
Mr.  MANN  proposed  his  amendment  as  an 
amendment  to  that  of  Mr.  RHOADES. 

Mr.  STOW  could  not  concur  with  the  senti- 
ment that  because  the  majority  should  rule  that 
we  should  have  no  veto  power.  He  deemed  that 
the  authority  of  this  government  was  not  in  an  un- 
checked, uncontrolled  majority.  The  whole  theo- 
ry of  our  institutions  was  a  system  of  checks  and 
balances.  It  was  for  this  that  it  was  divided  in- 
to three  branches.  The  Assembly  and  Senate 
did  not  as  a  matter  of  course  represent  the  whole 
people,  so  much  as  the  Governor  himself.  The 
members  of  those  bodies  represented  merely  dis- 
tricts of  the  people.  The  Governor  was  the  only 
representative  of  the  whole  body  of  the  people, 
and  he  therefore  ought  to  have  some  check 
upon  the  Legislature.  We  should  have  some 
voice  in  legislation — but  if  that  was  allowed  to 
be  overruled  by  a  mere  majority  of  the  Legisla- 
ture— it  was  of  no  effect  at  all.  This  veto  power 
was  also  necessary  as '  a  measure  of  protec- 
tion of  the  Executive  against  the  legisla- 
ture or  other  departments.  The  judiciary  pos- 
sessed this  power  in  an  eminent  degree.  No- 
law  could  be  carried  into  effect  without  their 
consent,  supposing  that  the  legislature  should 
pass  a  law  directly  infringing  upon  the  executive 
department — for  instance  to  release  all  the  con- 
victs in  the  State  Prison.  Where  would  be  his 


337 


power  to  arrest  this  if  he  should  be  stripped  of 
his  veto  power.  The  veto  power  was  but  a  refer- 
ence of  the  issue  to  the  people  themselves  for  their 
decision,  and  it  was  but  proper  that  they  should 
possess  that  power.  In  conclusion,  Mr.  S.  ex- 
pressed his  preference  for  the  proposition  in  re- 
lation to  it  as  reported  by  the  committee. 

Mr.  O'CONOR  should  vote  in  favor  of  the 
amendment,  preserving  as  it  did  the  Veto  power 
as  it  now  existed  in  all  its  force  and  integrity — 
adding  to  the  force  of  it  a  requisition  for  an  exact 
and  uniform  vote  on  all  questions  of  the  kind. 

Mr.  MORRIS  concurred  in  this  amendment. 
He  thought  it  a  decided  improvement  and  should 
vote  for  it. 

Mr.  TALLMADGE  thought  the  amendment 
would  make  the  Veto  an  absolute  prohibition,ra- 
ther  than  an  intimation  to  the  two  houses  of  the 
governor's  apprehension  that  they  had  made  a 
mistake  The  present  system  had  worked  well 
for  seventy  years,  and  he  would  not  change  it  ex- 
cept for  strong  reasons. 

The  question  being  taken,  Mr.  MANN'S  amend- 
ment was  adopted — ayes  56,  nays  45. 

The  question  was  then  on  Mr.  RHOADES'  amend- 
ment as  amended,  and  being  taken,  it  was  adopted. 

Mr.  TALLMADGE  said  that  the  section,  as 
printed,  required  the  vote  on  the  final  passage  of 
every  bill  to  be  taken  by  ayes  and  nays.  This 
would  only  tend  to  lumber  up  the  journals.  The 
committee  could  have  moved  this. 

Mr.  MORRIS  said  that  such  was  the  intention 
of  the  committee  in  reporting  the  section — it  was 
to  require  a  responsibility  for  every  bill. 

After  sorr-p  conversation  as  to  the  effect  of  the 
section,  it  wa^;  amended  so  as  to  require  the  ayes 
and  nays  to  be  recorded  only  on  the  bills  returned 
by  the  Governor. 

Mr.  TALLMADGE  called  attention  to  the  pro- 
vision which  allowed  the  Governor  ten  days  after 
the  adjournment,  to  sign  bills.  To  this  he  was 
opposed,  and  he  moved  to  strike  out  that  clause. 

Mr.  MORRIS  said  the  object  of  this  clause  was 
this.  A  very  large  number  of  bills  were  passed 
at  the  last  stage  of  the  session,  the  Governor  was 
not  able  to  examine  them  in  season  to  return  them 
to  the  Legislature  before  its  adjournment,  and 
they  were  thereiore  lost.  It  was  to  obviate  this 
difficulty  that  the  clause  was  reported ;  and  what 
harm  would  grow  out  of  it  ? 

Mr.  HOFFMAN  :     A  great  deal. 

Mr.  MORRIS  would  like  to  know  what  it  was. 

Mr.  STETSON  thought  it  was  better  to  provide 
that  he  should  have  time  during  the  session  of 
the  Legislature  to  examine  bills,  than  to  adopt 
this  section.  If  he  should  desire  to  veto  a  bill, 
no  opportunity  would  be  offered  him  to  do  so  un- 
til the  next  session. 

Mr.  CROOKER  said  that  the  section  as  it  now 
stood,  gave  the  Governor  an  unqualified  veto. — 
No  matter  by  what  majority  a  bill  may  have  pass- 
ed, all  he  had  to  do  was  to  pocket  it. 

SEVERAL  :     It  is  so  now. 

Mr.  HOFFMAN  objected  to  this  clause,  as  or- 
dering the  Legislature  at  the  last  of  the  session  to 
pass,  without  examination  being  had,  measures  in 
favor  of  which  there  were  many  local  interests, 
with  a  view  of  throwing  the  responsibility  of 
defeat  upon  the  executive,  and  thus  get  up  an  is- 
sue. The  executive  could  not  get  his  veto  in,  be- 


fore the  next  session,  and  would  therefore  have 
no  opportunity  to  defend  his  action.  The  legis- 
lature were  not  bound  to  adjourn  until  all  the 
measures  had  been  examined  by  him,  and  he 
would  rather  if  any  provision  was  now  to  be  made 
to  provide  for  that. 

The  motion  to  strike»out  prevailed,  and  the 
amendment  of  Mr.  RHOADES  as  amended,  was 
adopted. 

And  then  the  committee  rose  and  reported  the 
Article  to  the  Convention. 

Mr.  MORRIS  suggested  that  the  question  on 
agreeing  with  the  report  should  lie  on  the  table 
for  the  present;  as  further  amendments  might  be 
required  after  the  action  of  the  Convention  on  the 
reports  of  other  committees. 

After  some  conversation,  it  was  agreed  that 
the  report  should  be  printed. 

And  then  the  Convention  adjourned. 

FRIDAY,  (3Sth  day)  July  17. 

Prayer  by  Rev.  Mr.  KNAPP. 

MONEY  IN  CHANCERY. 

A  communication  was  received  from  the  Chan- 
cellor as  to  the  amount  of  money  under  his  con- 
trol. There  is  in  his  hands  $2,921, 900.38,  which 
is  thus  disposed  of:  balance  in  bank,  $210,802.77  : 
in  trust  companies  on  interest,  $832,171.16  ;  in 
bonds  and  mortgages,  $1,781,931. 93  ;  in  other  se- 
curities, $96,934.52.  Of  this  amount  $1,083.- 
479.65  is  in  the  First  Circuit. 

Mr.  CHATFIELD  objected  to  these  long  doc- 
uments being  printed  as  documents  and  also  on 
the  journal.  It  was  an  unnecessary  expense. — 
He  offered  this  resolution  : 

Resolved:  That  the  answers  from  the  several  officers 
and  public  functionaries  to  the  enquiries  directed  to,  and 
calls  made  upon  them  respectively  by  this  Convention, 
shall  not  be  entered  at  length  upon  the  journal,  nor  shall 
the  same  be  printed  as  a  part  of  the  journal  of  this  Con- 
vention. 

Mr.  PATTERSON  also  warmly  opposed  their 
being  printed  twice.  It  was  only  a  job  to  put 
money  into  the  pockets  of  the  printers. 

Mr.  RUSSELL  thought  the  best  way  to  pre- 
serve these  important  documents  was  to  have 
them  in  the  book  form  among  the  regular  proceed- 
ings of  the  journal. 

Mr.  MURPHY  was  of  the  same  opinion. 

Mr.  STETSON  wanted  to  know  if  the  printers 
charged  twice  for  the  setting  up  of  the  type, 
which  in  fact  they  only  set  it  up  once. 

The  PRESIDENT  said  that  they  did  do  so ;  he 
has  thus  been  informed  by  the  Secretary. 

Mr.  PATTERSON  said  that  the  printers,  Car- 
roll &  Cook,  were  terribly  behind  with  their 
printing;  they  had  the  journal  printed  only  rap  to 
the  25th  of  June,  and  only  one  page  of  that ;  and 
it  was  now  the  17th  of  July.  All  this  shameful 
delay  should  be  prevented,  and  the  double  charges 
for  single  work  put  a  stop  to. 

The  debate  was  further  continued  by  Messrs. 
RUSSELL,  F.  F.  BACKUS,  STETSON,  HOFF- 
MAN, TALLMADGE,  and  MURPHY. 

The  resolution  and  document  were  referred  to 
a  select  committee  of  five.  The  document  was 
also  referred  to  the  judiciary  committee. 

The  committee  appointed  under  this  resolu- 
tion were  Messrs.  CHATFIELD,  PATTERSON, 
MURPHY,  STETSON,  and  AYRAULT. 


338 


ORDER  OF  BUSINESS. 

Mr.  LOOMIS  called  for  the  consideration  of  his 
resolution  reported  yesterday  from  the  special 
committee,  of  which  he  was  chairman,  which 
prescribed  the  order  in  which  the  various  reports 
of  committees  should  be  acted  upon — as  follows  : 

1.  Executive  Department. 

2.  Election,  apportionment,  pay,  &c  ,  of  the  legislature. 

3.  Incorporation,  other  than  banking  and  municipal. 

4.  Currency  and  banking. 

5.  Canals,  internal  improvements,  public  debt,  &c. 

6.  The  judiciary. 

7.  Powers  and  duties  of  the  Legislature. 

8.  Appointment  or  election  of  local  officers. 

9  Election  or  appointment  of  officers  whose  powers  are 
not  local. 

10.  Powers  of  counties,  towns,  &c.,  except  cities  and  in- 
corporated villages. 

11.  Organization  and  powers  of  cities  and  incorporated 
villages,  &c. 

li.  The  elective  franchise. 

13.  Education,  common  schools  &c 

14.  Creation  and  division  of  estates  in  land. 

15.  Official  oaths  and  affirmations. 

16.  The  militia  and  military  affairs. 

17.  Rights  and  privileges  of  citizens. 

18.  Future  amendments. 

Mr.  CHATFIELD  opposed  this,  and  moved  to 
make  number  seven  stand  as  number  three — num- 
ber seventeen  to  stand  as  number  four — and  num- 
ber twelve  to  stand  as  number  five  ;  and  in  that 
order  to  be  taken  up. 

Mr.  STETSON  opposed  this— for  that  would 
bring  his  committee  (which  stands  here  as  num- 
ber seven)  the  third  in  order.  Now  it  was  a  rear 
guard  committee,  and  the  success  of  its  provi- 
sions depended  upon  what  is  done  by  other  com- 
mittees 

Mr.  CHATFIELD  said  it  was  a  van-guard  com- 
mittee ;  the  legislative  power  stands  first  in  the 
government. 

Mr.  STETSON— Yes,  but  most  of  those  pow- 
ers have  been  deducted  from  it. 

Mr.  PATTERSON  said  they   had  better  leave 
all  this  to  the  Convention ;  and  take  them  in  th 
order  they  were  reported. 

Mr.  TALLMADGE  said  they  had  much  better 
do  this ;  for  several  committees  were  put  down 
here — such  as  that  on  canals,  &c.,  the  judiciary 
&c.,  (important  committees,)  that  have  not  ye 
reported.  Now,  if  gentlemen  are  not  so  com 
pletely  absorbed  in  their  zeal  for  party  feelin< 
and  purposes,  they  would  accede  to  this ;  tin 
rights  and  privileges  of  citizens  ought  to  take  pre 
cedence  of  the  miserable  squabbles  about  offic 
and  its  paltry  perquisites.  Let  this  be  the  thin 
in  order ;  the  committee  had  labored  most  inde 
fatigably,  and  frequently  had  three  meeting 
a-day,  to  get  it  ready. 

Messrs.   MORRIS  and  PATTERSON  made 
few  remarks,  and  on   motion  of  Mr.  KIRKLANI 
the  subject  was  laid  on  the  table — 57  to  24. 
DEBATE  IN  COMMITTEE  OF  THE  WHOLE. 
Mr.  MANN  offered  the  following  : 
Resolved,  That  when  in  committee   ot  the  whole,  n 
member  shall  speak  more  than  once  to  any  question,  unt 
fevery  member  choosing  to  spnak  has  spoken,  or  by  unan 
mous  consent  of  the  convention. 

He  said  he  offered  this  resolution  to  give  eac 
modest  gentleman  in  the  convention  an  opport 
nity  to  be  heard.     He  found  that  when  they  wei 
in  committee  of  the  whole,  a  certain    number  c 
gentlemen,  some  five  or  six,  monopolized  all  th 


me.  They  managed  some  how  to  get  the  floor, 
nd  others  were  precluded  who  might  have  a 
ord  to  say,  because  they  were  too  modest  tocon- 
md  for  the  floor ;  and  when  ultimately  they  did 
ucceed,  they  were  put  down  by  cries  of"  ques- 
on"  by  those  gentlemen  who  had  consumed  all 

e  time  in  debate,  and  wearied  all  the  members. 

A  debate  ensued  in  which  Messrs.  W1LLARD, 
ATTERSON,  RUSSELL,  MURPHY,  CHAT- 
IELD,  W.  TAYLOR,  CLYDE,  &c.  engaged. 

Mr.  CHATFIELD  said  he  had  endeavored-  to 
o  his  duty  impartially,  whilst  in  the  Chair,  and 
ad  given  the  floor  always  to  the  first  person  he 
ecognized,  whether  it  was  an  imprudent  member 
r  a  lay  member. 

Mr.  MANN  withdrew  it,  on  reflection. 

Mr.  CLYDE  said  that  unless  that  rule  was  to 
e  enforced  hereafter,  he  would  renew  it. 

Mr.  MURPHY— It  is  the  rule  now,  only  it  has 
ot  been  enforced. 

EXECUTIVE  DEPARTMENT. 
The  Convention  then  took  up  the  report  of  the 
ommittee  of  the  whole  on  the  article  reported  by 
ic  5'h  standing  committee,   on  the    powers  and 
uties  df   the   Governor.      The    question  was  on 
greeing   to  the    report   of  the   committee  of  the 
whole. 

Mr.  CHATFIELD   moved   that  the  report  be 

aken  up  by  sections.     He  added  that  any  gentle. 

man  could  now  otter  his  amendments  whicn,  were 

oted  down  in  committee  of  the  whole. 

The  1st  section  v\as  read  accordingly  as  follows: 

(j  1.  The  Executive  power  shall  be  vested  in  a  Gover- 
or.  He  shall  hold  his  office  (or  two  years;  and  a  Lieu- 

enant  Governor  shall  be  chosen  at  the  same  time  and  for 

he  same  term. 

Mr.  YOUNG  moved  an  amendment  which  was 
,greed  to.  so  that  the  section  stands  thus: 

5)  1.  The  Executive  power  shall  be  vested  in  a  Gover- 
ior,  who  shall  hold  his  office  for  two  years.  A  Lieuten- 
int  Governor  shall  be  chosen  at  the  same  time  and  for  the 
ame  term. 

Mr  DANA  said  he  had  offered  this  in  commit- 
ee,  but  they  got  into  a  habit  just  then  of  voting 
io\vn  every  thiug. 

Mr.  O'CONOK  thought  the  words  "at  the  same 
ime  and''  in  the  las!  line,  were  unectssary,  as 
here  wa*  a  suitable  provision  in  another  section. 

Mr.  CHATFIELD  said  this  ;:njendrnent    might 
be    troublesome    if.  we   desired   always   to  elect  a 
overnor  and   Lieutenant   Governor  at   the  same 
tune. 

Mr.  MURPHY:    I  should  like  to— 

Mr.  O'CONOR:  Oh,— I  withdraw  it— I  with- 
draw it,  if  there  is  to  be  a  discussion  . 

It  was  withdrawn  and  the  1st  section  was 
passed. 

The  2d  section  was  then  read,  as  follows: 

&  2.  x  o  person  except  a  citizen  of  the  United  States  shall 
be  eligible  to  the  office  of  Governor;  nor  shall  any  person 
be  eligible  to  that  office  who  shall  not  have  been  live  years 
a  resident  within  the  State:  unless  he  shall  have  been 
absent  during  that  time  on  public  business  of  the  United 
States  or  of  this  State. 

Mr.  HUNTINGTON  of  Suffolk  moved  to  insert 
in  I  he  3rd  line,  alter  the  words  "eligible  to  that 
office"  the  words,  ''who  shall  not  have  attained 
the  age  of  30  years." 

Mr.  MILLER  demanded  the  yeas  and  nays  and 
they  were  ordered,  and  being  taken  resulted  thus 


339 


— yeas  01,  nays  49.      So  the  amendment  was  car- 
ried. 

AYKS-Messrs.  Angel,  Ayrault,  F.F-  Backus,  H.  Backup, 
Bouck,  Biayton,  Bull,  D.  I),  Campbell,  Catl'lee, Clark, 
Clyde,  Conely,  Crocker,  Cuddebnck,  Dann,  Dubois,  For- 
syth,  Gardner,  Grbhard.  Graham,  Greene,  Harrison,  IIa\v- 
ley,  Hoihnaii,  Hunter,  A.  Humington,  E.  Ilnntington, 
Hyie,  Jordan,  Kemble,  King.sley,  Sic.Nitt,  Maxwell,  Miller, 
Morns,  Murphy,  Ni.'holas.  Parish,  Pennimsm,  Porter,  Pich- 
xn.jiui,  St.  John,  Salisbury,  Sears,  Shaw,  Sheldon,  Sim 
nions  E  Spencer,  Stanton,  Stow,  Strong,  Twfgart,  Tall 
madge,  J.  J.  Taylor,  Tuthill,  Water;  ury,  Wiilard,  Wood, 
A.  U  rijrht,  Yawger,  A.  W.  Young— 61. 

NAYS— Messrs.  Archer,  Bascom,  Bergen,  Bowdish, 
Brown,  Bnice,  Brundage,  Burr,  Cambreleng,  11.  Camp- 
bell, jr..  Ch;itfi--l<!,  (  ook.  Cornell  Danlbrth,  Dodd,  Dprlon, 
Fiandeis,  Harris,  Hart,  Hotchki&s,  Hunt,  Hutchinson, 
Jones,  Reman,  Kirkland,  Loomis,  Mann,  Nellis,  Nicoll. 
O'Conor,  Patterson,  Power?,  Rhoades,  Hiker,  Russell, 
SheparJ,  Stephens,  Stetson,  Swackhamer,  T^ft't,  W.  Tay- 
lor, Townseud,  Vanschoonhoven,  Warren,  White,  Wit- 
beck,  Worden,  J.  Youngs— 49. 

Mr.  MURPHY  had  voted  "no."  He  now  wish- 
ed  to  change  his  vote 

Mr.  STRONG:  Can  a  member  change  his  vote 
merely  tor  the  purposeof  moving  a  reconsideration 
herf  after? 

Mr.  MURPHY  :  I  find  I  can  move  to  reconsid- 
er without  changing  my  vote ;  so  I  wish  it  record- 
ed back  to  the  nays. 

Mr.  STRONG  :  Now,  sir,  I  wish  to  know  if  a 
member  can  change  his  vote  more  than  once  on 
the  same  subject? 

Mr.  FORSYTH  desired  to  vote.  He  was  al- 
lowed, as  was  Mr.  CORNELL. 

Mr.  PATTERSON  said  there  was  no  rule  to 
prevent  them. 

Mr.  C AMBRELING  hoped  that  upon  so  grave 
a  matter  as  emending  the  Constitution  they  ought 
not  to  be  tied  down  to  strict  parliamentary  rules 
in  the  rec  .rdirg  a  vote. 

Mr.  RHOADES  said  his  name  was  called  as 
voting  on  both  sides  the  question.  He  had  not 
done  so. 

Mr.  HOFFMAN  said  the  practice  was  neither 
a  parliamentary  one,  nor  a  convenient  one  of 
changing  the  votes.  The  best  way  was  this  : — a 
member  rises  in  his  place,  and  asks  to  be  called. 
The  President  asks  if  he  was  within  the  bar  ;  he 
answered  "  yes,"  his  name  is  called,  he  votes,  and 
in  this  way  a  change  of  vote  is  effected  without 
confusion. 

Mr.  HARRISON  moved  the  insertion  of  the 
word  "  native,"  to  follow  the  words"  no  person 
except  a,"  in  the  first  line  of  the  3d  section. 

Mr.  MANN  demanded  the  yeas  and  nays  and 
they  were  taken  and  resulted  thus— yeas  G,  nays 
106. 

Mr  HARRISON  desired  to  offer  another  amend- 
ment as  a  substitute  for  the  whole  section  as  fol- 
lows : 

No  person  shall  be  eligible  to  the  office  of  Governor  un- 
less he  shall  be  30  years  of  age,  and  shall  have  been  10 
years  a  resident  of  the  United  states,  and  five  years  a  resi- 
dent ol  this  state,  unless  he  shall  have  been  absent  on  pub 
lie  business  of  this  state,  or  the  United  Sta'.es.  And  no  per- 
son shall  be  constitutionally  eligible  to  the  office  of  Lieut- 
Governor  who  shall  not  be  eligible  to  the  office  of  Gov. 

Mr.  TOWNSEND  enquired  if  this  amendment 
was  offered  in  committee  of  the  whole. 

Mr.  HARRISON  said,  substantially  it  was, 
though  not  in  this  precise  form. 

Mr.  PATTERSON.  Even  if  it  had  not  been, 
there  is  no  rule  to  prevent  its  being  offered  now. 

The  PRESIDENT.     The  rule  is  first  to  con- 


sider those  offered  in  committee  of  the  whole,  and 
then  any  new  ones. 

Mr.  HUNT  desired  then  to  offer  an  amendment 
to  the  section  as  it  stood,  and  it  took  precedence 
of  all  others.  It  was  to  insert  after  the  30  year's 
qualification,  which  had  been  agreed  to,  the 
words  "  or  who  shall  have  passed  the  age  of  70." 

Mr.  CHATFIELD  moved  to  amend  by  strik- 
ing out  70  and  inserting  60. 

Mr.  HUNT  accepted  the  amendment. 

The  amendment  as  amended  was  lost,  the  vote 
being  6  in  the  affirmative  and  103  in  the  negative. 

Mr.  CHATFIELD  said  it  was  known  that  all 
the  way  through  this  controversy  he  had  been  in 
favor  of  the  most  unlimited  eligibility  for  the 
candidate  for  Governor.  But  as  the  convention 
had  begun  to  establish  limitations  and  checks,  he 
thought  they  ought  to  guard  against  the  danger 
from  the  other  side,  of  drivelling  dotage  as  well 
as  the  inexperience  of  youth.  Having  disposed 
of  those  questions  he  now  moved,that  there  might 
be  no  misunderstanding  on  the  subject,  the  fol- 
lowing : 

Every  qualified  elector  of  this  state  shall  be  eligible  to 
the  office  of  Governor. 

The  PRESIDENT  decided  that  the  substitute 
of  the  gentleman  from  Richmond  (Mr.  HARRI- 
SON) would  be  first  in  order  if  there  were  no  other 
amendments  to  the  section. 

Mr.  RIKER  said  he  had  an  amendment  to  offer 
which  he  submitted  as  follows :  to  add  the  words 
"  or  Lieut.  Governor"  after  the  word  "Governor" 
in  the  second  line. 

Mr.  NICOLL  said  the  7th  section  made  ample 
provision  for  the  qualifications  of  the  Lieut.  Gov- 
ernor. 

M..  CROOKER  thought  that  it  would  be  more 
proper  to  insert  the  words  here,  and  strike  them 
out  of  the  seventh  section. 

Mr.  RUSSELL  said,  no.  The  seventh  section 
related  exclusively  to  the  Lieut.  Governor,  and 
his  qualifications  should  be  prescribed  by  one 
section. 

The  amendment  was  negatived. 

Mr.  ANGEL  moved  to  insert  the  words  "  next 
proceeding  his  election"  after  the  words  "  five 
years"  in  the  third  article. 

Mr.  STETSON  thought  this  qualification  of 
residence  might  be  susceptible  of  a  construction 
which  mi§ht  not  meet  with  the  approbation  of  the 
Convention.  The  designation  of  the  absence  gives 
a  kind  of  character  to  "  term  of  residence."  An 
absence  once  in  every  5  years  would  thus  dis- 
qualify a  man. 

Mr.  BRUCE  hoped  the  amendment  would  pre- 
vail, otherwise  a  man  might  become  a  citizen,  go 
away  for  many  years  ;  return,  and  in  twenty-four 
hours  be  qualified  to  and  be  elected  Governor. — 
If  he  had  ever  at  any  time  resided  here  5  years, 
he  could  be  Governor  without  this  amendment. 
He  could  see  no  objection  to  this  amendment. 

Mr.  BROWN  now  rose  and  asked  the  Conven- 
tion to  give  him  the  opportunity  to  record  his 
vote  on  file  question  already  taken.  It  would  be 
a  favor  which  he  should  be  willing  to  extend  to 
other  gentlemen  at  any  time.  The  ground  on 
which  he  asked  it  was,  that  he  had  been  detained 
that  morning  on  the  business  of  the  House. 

The  PRESIDENT  put  the  question  on  grant- 
ing leave.. 


340 


Mr.  SIMMONS  asked  the  gentleman  from  Or 

ange,  if  his  detention  had   been    occasioned   b} 

business  connected  with  the  Convention. 

Mr.  BROWN  replied  that  such  was  the  case 
Mr.  SIMMONS  thought  then  that  no  bad  pre 

cedent  would  be  established,  and  he  hoped  leave 

would  be  given. 

Leave  was  unanimously  given  accordingly,  and 

Mr.    BROWN  voted  no  on  the  two  first  questions 

taken. 

Mr.  BROWN :  Well,   I   may  as  well   vote  on 

them  all,  since  you  are  so  clever.     I  vote  "  No,' 

on  the  third  question. 

Mr.  DANA  spoke  in  favor  of  the  amendment 

He  thought  if  a  man  was  absent  from  the  State  on 

his  own  business   he  ought  to   lose  his  privilege 
The  amendment  was  agreed  to. 
Mr.  ANGEL  then  moved  the  insertion  of  the 

word    "  citizen"  after   the  word  resident  in  the 

third  line. 

Mr.  SHEPARD  called  for  the  yeas  and  nays 

upon  this. 

Mr.  O'CONOR  said  this  would  provide  5  years 
before  and   5  years  after  naturalization.     It  was 

getting  in  about  as  much  of  nativeism  "as  could 
be  got  in  without  the  name.  He  thought 
those  who  voted  for  the  30  years'  qualification 
ought  to  vote  for  this;  he  hoped  they  would. — 
He  wished  members  distinctly  to  understand  this 
amendment  before  voting. 

Mr.  MURPHY  said  he  would  ask  the  indul- 
gence of  the  convention  for  a  few  remarks  in  re- 
gard to  the  amendment  of  the  gentleman  from 
Allegany,  (Mr.  ANGEL)  because  it  was  a  new 
proposition  which  had  not  been  offered  when  in 
committee  of  the  whole,  and  which  had  a  very 
important  bearing.  He  hoped  it  would  be  rej  ect- 
ed,  and  that  those  who  had  sustained  the  pro- 
vision requiring  the  qualification  of  thirty  years 
of  age,  would  not,  as  the  gentleman  from  New- 
York  (Mr.  O'CoNOR)  had  suggested,  also  vote 
for  this.  Two  wrongs  did  not  make  a  right; 
and  this  was  too  important  a  matter  to  be  hasti- 
ly or  inconsiderately  voted  upon.  He  was  op- 
posed to  the  amendment  because  its  effect  would 
be  to  require  a  ten  years  residence  in  certain  ca- 
ses before  adopted  citizens  would  be  eligible. 
Thus  a  foreigner  landing  in  this  state  with  the 
bonafide  intention  to  become  a  citizen,,  and  ac- 
tually becoming  such  after  a  residence  of  five 
years,  would,  according  to  our  present  constitu- 
tion, and  according  to  the  section  under  consid- 
eration as  it  now  stands,  be  eligible  to  the  office 
of  Governor ;  but  if  this  amendment  be  adopted 
you  will  require  a  further  residence  of  an  addi- 
tional five  years  before  he  would  be  eligible. — 
Now  this  was  making  a  distinction  between  na- 
tive and  adopted  citizens  which  he  did  not  wish 
to  see  admitted.  They  had  with  great  unanimity 
just  stricken  out  the  word  native  and  abolished 
that  odious  interpolation  in  the  constitution,  and 
he  trusted  they  would  adhere  to  the  principle  of 
that  vote.  He  called  upon  those  who  had  voted 
with  him  on  his  motion  for  that  purpose,  because 
it  created  two  classes  of  citizens,  to  come  up  and 
vote  down  the  specious  amendment  of  the  gen- 
tlemen from  Allegany. 

Mr.  ANGEL  said  he  had  not  offered  this  amend- 
ment without  due  reflection.  He  thought  it  would 
be  doing  no  injustice  to  the  truth  were  he  to  say 


that  he  had  as  much  regard  for  foreigners  and  as 
much  kind  feeling  towards  them  as  the  gentleman 
from  Kings  (Mr.  MURPHY).  He  had  a  due 
regard  for  them.  He  was  pleased  with  their 
emigrating  to  this  country.  They  come  here 
and  do  our  work  for  us  and  they  often 
come  well  qualified  to  fill  our  offices  and 
we  give  them  a  full  share  of  them.  They 
flee  from  oppression  at  home,  and  then  find 
an  asylum  here.  We  afford  them  all  the  pri- 
vileges we  can  afford,  but  it  must  be  borne  in 
mind  that  every  foreigner  brings  with  him  some 
lingering  feeling  from  the  land 'of  his  nativity  in 
favor  of  monarchical  governments  and  institutions 
which  may  be  adverse  to  his  duty  here  if  he  were 
put  in  this  office  too  speedily.  And  is  it  a  hard- 
ship to  say  that  he  shall  not  be  governor  till  he 
has  been  here  five  years  ?  The  gentleman  from 
Kings  (Mr.  MURPHY)  said  in  substance— he  did 
not  recollect  the  precise  words— that  it  was  an  op- 
pressive restriction  on  foreigners  to  make  them 
wait  five  years  after  naturalization  before  they 
could  become  eligible  for  the  office  of  Governor. 

Mr.  MURPHY  denied  that  he  had  said  any 
thing  of  the  kind.  He  had  said  he  was  opposed 
to  the  amendment  because  it  established  a  dis- 
tinction between  native  and  naturalized  citizens. 

Mr.  ANGEL  continued.  Well,  what  kind  of 
oppression  was  that  ?  When  they  selected  a 
chief  magistrate  for  three  millions  of  people  to 
preside  over  the  Empire  State,  was  it  an  hard- 
ship to  say  to  a  man,  "  because  you  have  not  been 
a  citizen  five  years,  you  shall  not  be  Governor  ?" 
Some  period  should  be  fixed,  and  he  thought  ten 
years  residence  was  short  enough,  in  all  con- 
science— five  before  and  five  after  acquiring  citi- 
zenship. The  Convention  had  just  passed  a  vote 
excluding  the  word  "  native,"  and  they  had  made 
hirty  years  a  qualification  of  a  native  born  citi- 
zen— thus  establishing  a  complete  nine  year  quar- 
rantine  for  the  native  born  ;  and  he  really  hoped 
t  would  not  be  considered  as  indicating  an  un- 
dnd  feeling  towards  foreigners,  to  require  that 
hey  should  have  a  five  years  citizenship  to  be 
eligible.  He  had  no  unkind  feeling  for  foreign- 
ers at  all ;  but  he  wished  to  ask  if  there  was  any 
American  feeling  left  in  this  Convention,  or 
vhether  they  would  give  up  every  thing  to,  men 
vhe>  had  but  recently  come  into  the  country  ? — 
le  firmly  believed  it  would  not  be  safe  to  adopt 
he  resolution  without  this  restriction. 

Mr.  HARRISON  had  a  few  remarks  to  offer  to 

he  Convention,  and  he  regretted  that  he  was  not 

able  to  offer  them  in  a  better  form.    '  There  were 

lere  two  distinct  propositions  which  must  pre- 

ent  themselves  to  the  Convention.     The  first  was 

hat  gentlemen  either  meant  to   adopt  such  dis- 

inctive  qualifications  as  should  stand  forth  prom- 

nently  and  be  clearly  perceptible  in  the  consti- 

ution,  or  they  would  abandon  the  ground  entire- 

y  and  throw  themselves  back  on  the  proposition 

ome  time  since  made  by  the  gentlemen  from  St. 

^awrence,  which  he  thought  was  the  only  right- 

ul  one,  if  they  did  not  make  this  restriction. — 

Singly   to   adopt  a  5  years  residence  would  be, 

merely  trifling  and   a  mockery;  fora  foreigner 

might  land  on  our  shores  and  in  5  years  he  would 

e  eligible  to  be  our  Governor.     Now,  with  the 

entleman  from  Allegany  (Mr.  ANGEL)  he  would 

ask  if  they  had  abandoned  all  our  American  feel-. 


341 


ings  ?  He  was  not  ashamed  to  stand  up  there  and 
contend  for  those  principles  that  should  charac- 
terize and  distinguish  us  as  Americans.  He  had 
no  desire  to  encourage  the  ambitious  views  of  a 
foreigner  who  should  come  to  our  shores  with  as- 
pirations for  the  chair  of  the  chief  magistrate  of 
this  state.  Many  formidable  evils  might  arise 
from  this  indulgence  of  foreigners.  Had  the  peo- 
ple of  this  State  forgotten  that  we  had  a  large 
protestant  body  within  our  bosom,  who  were 
looking  with  great  interest  on  this  question  ? — 
And  could  the  feelings  and  opinions  of  that  large 
and  respectable  class  be  disregarded  ?  It  must 
be  familiar  to  every  member  of  the  Convention 
that  there  had  been  for  some  time  going  on  in 
this  country,  a  controversy  that  however  we 
might  be  disposed  to  look  upon  it,  to  a  large 
portion  of  our  people  was  an  important  one 
indeed.  He  should  not  have  called  the  atten- 
tion of  the  Convention  to  this  matter,  but  for  that 
remarkable  and  extraordinary  indifference  which 
he  saw  here  manifested  upon  this  question. — 
He  hoped  then  the  Convention  would  give  them 
reasonable  restrictions  and  reasonable  qualifi- 
cations, or  abandon  them  altogether  and  adopt 
the  theoretical  principles,  which  he  admitted 
however  were  just  in  themselves,  of  the  gentleman 
from  St.  Lawrence  (Mr.  RUSSELL,)  and  the  gen- 
tleman from  Otsego  (Mr.  CHATFIELD  )  That 
would  be  right,  but  this  would  be  a  mockery. — 
There  had  been  much  talk  in  the  Convention 
about  reciprocity;  but  was  there  any  reciprocity 
in  this  matter  ?  In  what  manner  were  American 
citizens  treated  abroad  ?  What  right  had  we  to 
rely  on  the  justice  of  the  Biitish  government  when 
we  go  abroad  :  They  had  been  told  that  that  go- 
vernment claimr-d  perpetual  allegiance  from  her 
sub  jecis,  arid  no  American,  whatever  may  have 
been  his  service,  can  hold  the  most  trifling  office 
there. 

Mr.  RUSSELL:  That  is  not  so. 

Mr.  HARRiSON  :  He  would  ask  if  we  would 
now  throw  open  every  office  in  the  state — could 
we  especially  throw  open  the  chair  of  the  Execu- 
tive chief  magistrate  to  foreigners,  who  anticipate, 
when  they  land  on  our  shores,  that  they  shall  be 
eligible  to  it  after  5  years'  residence  ?  It  was  un 
just,  in  every  view  ot  the  subject,  and  hence  he 
approved  of  the  proposition  from  Allegany  (Mr. 
ANGEL.)  Again,  on  our  frontier  we  have  one 
or  two  millions  of  people  who  may  be  arrayed  in 
hostility  against  us.  They  are  the  subjects  of  a 
foreign  power,  the  most  formidable  on  ihe  globe, 
and  yet  we  are  called  upon  to  place  at  the  head  of 
our  army,  in  time  of  war,  a  man  who  might  only 
have  been  here  5  years,  and  who  could  never  di- 
vest himselt  of  his  allegiance  to  the  country 
whence  he  came.  Fur  a  foreigner  can  never 
throw  off  his  allegiance.  He  trusted  the  Con- 
vention would  hesilate  before  they  fixed  in  the 
constitution  such  a  provision,  which  would  place 
them  at  the  disposition  of  a  foreigner,  who  had 
not  been  a  resident  within  the  bosom  of  this 
country  for  more  than  5  years.  In  conclusion,  hi 
repeated  that  we  ought,  from  regard  to  the  digni 
ty  of  our  state,  to  adopt  some  restriction,  which 
would  in  itself  be  respectable,  and  shield  us  from 
the  evil  that  might  justly  be  apprehended  ;  or  on 
the  other  hand,  adopt  the  reasonable  abstract 
principles  which  had  been  laid  down  by  the  gen- 


leman  from  St.  Lawrence,  which  threw  it  open 
o  all  freeholders. 

Mr.  CHATFIELD.  There  is  no  property  qua- 
ification  required  by  that  proposition. 

Mr.  SHEPARD  said— I  am  astonished  to  hear  the 
sentiments  uttered  by  the  honorable  t.enilemen 
who  have  just  addressed  the  house.  I  am  sorry  to 
witness  the  feelings  displayed  upon  a  question 
that  I  had  hoped  was  settled  here  finally  With 
the  fullest  concurience  of  opinion — with  a  unani- 
mity of  sentiment  almost  unparalleled  in  the  an- 
nals of  legislative  bodies  and  worthy  the  dignity 
of  this  house  and  the  occasion — the  odious  distinc- 
tion between  the  native  and  the  adopted  citizen 
has  been  stricken  from  the  Constitution.  The 
honorable  gentleman  from  Richmond  (Mr.  HAR- 
RISON) appeals  to  the  American  feeling  of  this 
house  to  place  the  word  "  native  "  again  in  that 
instrument.  Sir,  I  am  sure  he  will  not  arouse  the 
feeling  he  seeks.  I  am  sure  we  are  too  much  im- 
bued with  the  tree  spirit  of  our  institutions — too 
full  of  the  remembrance  of  our  national  history — 
too  grateful  for  the  services  of  those  who  in  the 
darkest  period  of  our  country's  existence  perilled 
every  thing  to  serve  the  cause  of  liberty — too 
mindful  of  the  sources  of  our  population  and  our 
prosperity  to  indulge  any  feeling  so  far  beneath  the 
dignity  of  freemen.  No  sir,  if  the  gentleman's 
appeal  moves  us  at  all,  it  awakens  that  ether 
American  feeling  which  flows  from  the  contem. 
plation  of  our  country — the  home  ot  more  than 
18,000,000  of  free  people — spreading  over  millions 
of  acres — stretching  from  ocean  to  ocean — em- 
bracing almost  a  continent  in  its  expanse  and  the 
consideration  that  it  has  grown  to  this  extended 
greatness  from  an  inconsideiable  beginning,  with- 
in a  tew  years,  by  the  infusion  of  the  persecuted 
of  every  clime,and  that  those  who  came  made  this 
their  home  and  liberty  their  condition,  vindicating 
both, in  peace  by  the  pursuits  that  make  our  national 
wealth, strength  and  dignity,  and  in  war  upon  every 
battle  field.  The  honorable  gentleman  tells  us  that 
the  eyes  of  the  protestants  are  upon  us  and  heap- 
peals  to  us  against  the  catholic  sect.  Sir, it  is  the  pe- 
culiar glory  of  this  country  that  every  man  may 
worship  afier  the  wishes  of  his  own  heart.  He  may 
bow  down  before  his  God  at  morn— at  noon — or  at 
night,  as  his  conscience  or  even  his  prejudices 
may  dictate,  and  no  man  shall  question  him 
therefor.  I  ask  then,  how  dare  the  honora. 
ble  gentleman  strike  a  blow  at  religious  free- 
dom. He  employs  those  fatal  appeals  that 
have  wrought  the  desecration  of  religious 
temples  in  one  of  the  cities  of  this  land — 
that  have  spread  death  and  desolation  amidst 
peaceful  citizens  and  happy  homes — that  have 
shaken  by  their  frantic  injustice  the  confidence 
of  mankind  in  free  governments.  Here  is  no 
place  to  utter  them — here  they  fall  not  on  willing 
ears.  But  the  honorable  gentleman  fears  that  a 
foreigner  may  lead  our  armies  if  the  word  "  na- 
tive" is  not  restored — so  he  may.  If  the  people 
choose  to  confide  the  defence  of  our  State  to  his 
hands  why  should  he  not  ?  I  believe  they  will 
judge  wisely  in  their  choice.  They  can  defend 
themselves  and  rest  assured  they  will  not  long 
employ  a  weak  or  a  wicked  agent  whether  for- 
eigner or  native.  A  foreigner  can  be  true  and  a 
native  can  be  false.  Glance  at  our  history. — 
Were  not  the  people  nobly  led  by  Montgomery — 


342 


by  Steuben — by  Lafayette,-  whose  blood  flowed 
freely  for  the  great  principles  of  the  Revolution  ? 
Were  these  great  men  not  able,  were  they  not 
brave— were  they  not  true  ?  And  on  the  other 
hand  look  at  Benedict  Arnold  educated  with  us, 
the  full  recipient  of  our  bounty — our  own  in  all 
his  earlier  associations,  and  if  one  could  have 
known  the  soul  of  man  in  all  his  earlier  sympa- 
thies— look  at  him,  I  say,  and  behold  how  black 
the  treachery  of  a  native  heart  can  be.  I  will  not 
dwell  upon  the  contrast — language  is  inadequate 
to  present  its  full  force.  I  leave  the  subject — 
hoping  that  these  sentiments  of  the  honorable 
gentlemen  will  not  again  be  spoken.  They  dis- 
grace those  who  utter  and  those  who  hear,  and  I 
trust  in  God  they  will  no  more  be  repeated  for- 
ever. . 

Mr.  HARRISON  said  he  wished  to  reply  if  he 
had  the  right  to  do  so. 

The  PRESIDENT  said  that  he  had. 

Mr.  HARRISON  said  that  he  would  then  tell 
that  young  gentlemen  from  New- York,  (Mr. 
SHEPARD)  that  he  (Mr.  H.)  was  an  American. 
He  was  proud  of  this ;  and  what  was  more,  he 
would  tell  him  that  his  ancestors  and  connexions 
had  at  various  times  in  this  country  given  demon- 
strations of  their  patriotism  in  various  ways  ;  and 
when  "  whigism"  was  really  a  distinctive  quali- 
ty he  was  a  whig.  Such  reflections  as  had  been 
indulged  in  by  that  young  gentleman  (Mr.  SHE- 
PARD) did  not  come  with  great  propriety  from 
him,  towards  one  who  stood  here  to  espouse  that 
which  he  believed  to  be  the  true  interest  of  the 
people  of  this  state.  He  had  no  idea  that  his  mo- 
tives should  be  aspersed,  and  his  principles,  whe- 
ther as  a  man  or  a  politician,  should  thus  be 
called  in  question.  He  was  a  Republican  and 
had  always  been  so.  He  was  a  friend  to  Repub- 
lican institutions,  and  would  go  as  far  to  support 
them  as  that  young  gentleman,  (Mr.  SHEPARD.) 
He  was  a  friend  also  to  aliens  and  would 
concede  to  them  every  office  to  which  they  rea- 
sonably ought  to  aspire;  but  he  had  no  idea  that 
a  foreigner  should  come  here  indulging  aspira- 
tions towards  the  chief  magistracy  from  the  very 
first  moment  he  landed  upon  our  shores. — 
He  had  no  idea  that  an  ambitious  foreign- 
er should  come  here  with  the  expectation 
that  he  should  be  entrusted  with  the  chief  power 
of  the  State,  both  civil  and  military,  either  on  the 
arrival  or  at  any  time  after.  If  to  question  the 
propriety  of  such  a  concession  was  to  occasion 
the  indulgence  of  such  language  and  such  insin- 
uations as  they  had  just  heard  from  the  gentle- 
man from  New-York  (Mr.  SHEPARD),  then  he 
must  submit  to  the  charge.  But  he  had  yet  to 
learn  that  those  principles  which  governed  the 
wise  and  and  able  men  of  the  Convention  of  1821 
are  to  be  deemed  heretical  in  this  body,  and  to  be 
considered  as  no  longer  republican  in  this  state. 
That  section  for  which  he  was  now  contending 
was  advocated  in  the  Convention  of  1821  by  such 
men  as  Daniel  D.  Tompkins,  General  Root,  and 
Rufus  King  ;  and  the  latter,  though  a  federalist, 
was  a  man  of  undisputed  patriotism.  Was  it 
then,  he  asked,  heretical  to  contend  for  princi- 
ples for  which  such  men  gave  their  voices  and 
their  votes  in  that  Convention,  and  which  they 
always  constantly  adhered  to  ?  And  was  he  for 
the  expression  of  his  opinion  to  be  admonished 


by  a  young  man  so  much  his  junior  as  the  gentle- 
man from  New  York  (SHEPARD.)?  He  would 
tell  that  young  man  that  he  was  not  thus  to  be 
restrained  from  the  advocacy  of  those  principles 
which  were  held  by  our  revolutionary  fathers, 
and  have  been  entertained  by  the  republicans  of 
the  country  ever  since.  He  had  a  few  more  words 
to  say.  and  merely  to  reiterate  an  expression  he 
had  before  used  in  speaking.  For  that  purpose 
he  begged  permission  to  trespass  a  moment  longer 
upon  the  indulgence  of  the  committee.  He  had 
made  allusion  to  the  Protestant  interest :  he  did 
not  by  that  intend  to  array  Protestants  and  Catho- 
lics against  each  other.  It  was  merely  from  a 
respectful  deference  to  a  large  body  of  citizens 
that  he  had  thus  spoken— a  body  that  entertains 
great  apprehensions  from  the  Catholics  on  this 
ground,  whether  well  or  ill  founded  was  not  for 
him  to  say.  And  he  appealed  to  the  Convention 
if  they  should  not  respect  so  large  and  respect- 
able a  body  as  these  Protestants,  who  though  they 
could  not  be  heard  here,  would,  they  might  de- 
pend upon  it,  if  the  question  were  submitted  to 
them,  give  expression  to  an  opinion  which  would 
have  some  weight  elsewhere.  In  conclusion  he 
would  again  say,  either  adopt  such  distinctive 
qualifications  as  would  stand  out  boldly  the  native 
born,  or  ten  years  residence — or  abandon  all  other 
qualifications  altogether,  and  insert  the  proposi- 
tion that  every  mere  elector  shall  be  qualified. 

Mr.  MANN  said  that  it  was  very  evident  they 
were  getting  back  again  to  the  days  of  Buncombe 
speeches ;  they  had  had  enough  of  these  in  com- 
mittee of  the  whole  on  this  article,  and  they 
were  beginning  again  just  where  they  had  left  off', 
after  so  many  day's  talking.  Now  he  hated  to 
move  the  previous  question ;  because  it  would 
cut  off' all  amendments  not  then  pending,  and  if 
the  committee  would  take  the  question,  he  would 
not  move  it. 

The  ayes  and  noes  were  then  ordered  and  the 
question  was  taken.  It  was  negatived.  Ayes 
36,  nays  73,  as  follows : 

AYES — Messrs.  Archer.  Bergen,  Bouck,  Bowdish, 
Brown,  Bruce,  Brundage,'  Burr,  Cambreleng,  Candee, 
Chattield,  Clark,  Clyde,  Conely,  Cook,  •  ornell,  Dodd, 
Dorlon,  Flanders,  Forsyth,  Greene,  Harris,  Hart,  Hawley, 
Hoftman,  Hotchkiss,  Hunt,  Hunter,  A.  Huntington,  E. 
Huntington,  H)de,  Jones,  Kornble,  Kernan,  Kingsiey, 
Kirkland,  Loomis,  Mann,  McNitt,  Maxwell,  Morris,  Mur- 
phy, Nellis  Nicoll,  O'Conor,  Parish,  Patterson,  Powers, 
President,  Rhoades,  Riker, Russell,  Salisbury, Sears,  Shaw, 
Sheldon,  Shepard,  Staaton,  Sietson,  Swackhamer,  Tafft, 
J.  J.  Taylor,  W.  Taylor,  Tilden,  1  ownsend,  Vsche,  Van 
Schoonhoven,  Warren,  White,  Wi'beck,  Worden,  Yaw- 
ger,  Youngs— 78. 

NAYS— Messrs.  Angel,  Ayrault,  F.  F.  Backus, H.  Back- 
us, Bascom,  Brayton,  Bull,  D.  D.  Campbell,  Crooker,  Cud- 
deback,  Dana,  Dubois.  Gardner,  Gebhard,  Graham,  Harri- 
son, Hutchmson,  Jordan,  Miller,  Nicholas,  Penniman, 
Richmond.  St.  John,  Simmons,  Smith,  E.  Spencer,  Stow, 
Strong.  Taggart,  Tailmadg*,  Tuthill, \Vaterbury,  Willard, 
Wood,  A.  Wright,  Young- 36. 

Mr.  BASCOM  moved  to  add  after  the  words 
"  unless  he  shall  have  been  absent  during  that 
time  on  public  business  of  the  U.  S.,  or  of  this 
State"  the  words  "  or  on  business  of  his  own." 

Mr.  STETSON  suggested  that  the  branch  of 
the  sentence  should  be  stricken  out  which  Mr. 
BASCOM  proposed  to  amend. 

Mr.  B.  withdrew  his  amendment,  and  the  ques- 
tion being  taken  on  Mr.  STETSON'S  proposition 
it  prevailed. 


343 


Mr.  JONES  would  like  to  have  the  question 
taken  on  a  motion  which  he  had  moved  in  com- 
mittee of  the  whole.  He  therefore  moved  to 
strike  out  the  words  "who  shall  not  have  been 
five  years  a  resident  within  the  State,"  together 
with  the  words  "  next  preceding  his  election," 
which  had  been  introduced  on  the  motion  of  Mr. 
i.  after  the  words  "  five  years." 

Mr.  DANA  would  inquire  then  if  this  amend- 
ment was  adopted,  whether  we  could  have  any 
candidate  for  Governor.  No  person  would  be 
eligible  to  the  office. 

Mr.  RUSSELL  said  that  it  would  still  provide 
a  qualification  for  eligibility. 

Mr.  JORDAN  rose  to  point  out  the  situation  in 
which  we  would  be  placed  if  this  amendment  pre- 
vailed. The  laws  of  naturalization  are  beyond 
the  power  of  this  State,  and  Congress  might  pass 
to-morrow,  a  law  by  which  foreigners  might  be 
naturalized  sixty  days,  or  even  six  hours,  after 
they  had  landed,  and  at  that  very  moment  be  eli- 
gible to  the  office  of.  Governor.  He  knew  it 
would  be  said  that  we  were  not  compelled  to  vote 
for  them,  and  on  that  question  he  had  no  disposi- 
tion to  renew  a  discussion  wThich  had  already  been 
protracted  ;  but  this  placed  us  entirely  within  the 
disposition  of  the  general  government,  and  he  had 
some  little  regard  For  State  rights  yet.  He  thought 
it  would  be  perfectly  suicidal,  as  we  had  passed 
the  section  requiring  a  residence  for  thirty  years, 
to  vote  for  this. 

Mr.  RUSSELL  said  he  would  not  have  risen  to 
speak,  had  not  gentlemen  repeatedly  attempted 
to  state  the  position  of  things  before  the  Conven- 
tion. And  having  consumed  none  of  the  time  of 
the  ten  d;<ys  occupied  in  determining  merely 
whether  the  citizens  of  the  State  were  competent 
to  select  a  candidate  for  Governor,  he  would  now 
be  permitted  to  state  his  opinion  of  the  question 
before  us  now.  It  was  could  we  trust  the  great 
body  of  tne  electors  of  the  State  within  the 
limits  of  citizenship,  to  select  a  candidate  for 
Governor.  He  did  not  deny  that  the  people  had 
a  right  to  restrict  themselves  as  to  the  qualifica- 
tions they  would  require  of  the  chief  magistrate, 
but  the  great  question  was,  was  it  necessary  for 
them  to  do  so.  He  did  not  believe  that  the  peo- 
ple ever  would  select  a  candidate  who  would  be 
excluded  by  these  propositions.  He  would  not 
vote  for  ,  a  Governor  unless  under  extraordinary 
circumstances,  who  did  not  possess  those  qualifi- 
cations, but  he  would  extend  the  same  right  of 
forming  a  judgment,  to  the  people  themselves  as 
he  then  claimed  for  himself.  It  was  the  only 
correct  principle  consistent  with  true  democracy. 

The  question  being  taken — by  ayes  and  nays — 
the  amendment  was  rejected,  ayes  44,  nays  66, 
as  follows : — 

AYrS— Messrs.  Archer,  Bascom,  Bergen,  Bowdish, 
Brown,  Burr,  CambMeng,  R.  Campbell,  jr.  Chiitnell, 
Clark,  Cook,  Coa.ell,  Daalbrth,  Dodd,  Dorlon,  Flanders, 
li-jr.is,  lldrusou.  Hart,  Hu.chn.iss,  -tuut,  Jones,  Kernan, 
Looinis,  Mann,  Murphy,  Nellis,  O'Gonor,  Patterson,  Pow- 
ers, Russell,  Shepard,  Stetson,  Swackhamer,  Tatt,  W. 
Taylor,  Tilden,  Townsemi,  Vaehe,  Van  Schoonhoven, 
Warmi,  White,  Wiibeck,  Women— 44. 

NOi^J  — Messrs  Angel,  Ayrault,  V.  ft.  Backus,  II  Back- 
us, Bouck,  Bray  ton.  Bruce,  Bruadage,  Bull,  D.D.  Camp. 
bel])Candee,Conley,Crooker,  Cuddeback,  Dana,  Dubois, 
Forsjth,  Gardner,  Gebhard,  Graham,  Hawley,  Hortman, 
Hunter,  A.  iluutin^tou,  E.  Huntington,  Hutchinson.Hyde, 
Jordan  Kemble,  Kmgsley,  Kirkland,  McNitt,  Maxwell, 
Miller,  Morris,  Nicholas,  NicoJl,  Parish,  Fenniman,  Prt*i 


den'.,  Rhoades,  Richmond,  Hiker,  St.  Joi.a,  SalL-Ku/y, 
Sears,  Shaw,  Sht  Iduii,  Simmons,  Smith,  E  Spencer,  Stan 
ton,  Stow,  Strong,  Taggart,  Talhnadge,  J  J.  Taylor,  Tut- 
hill.  Willard,  Waterbury.  Wood,  A.  Wright,  Yawger, 
Young.  Youngs.— 6t> 

Some  conversation  here  arose  as  to  the  priori-' 
ty  of  amendments,  between  Messrs.  CHATFIELD, 
and  HARRISON,  when  Mr.  C's  was  decided  to  be 
the  first  in  order. 

Mr.  CHATFIELD  then  moved  to  strike  out 
the  second  section,  and  insert  the  following : — 

Ev<  ry  qualified  elector  cf  this  state  shall  be  eligible  to 
the  otfice  of  Governor. 

Mr.  WORDEN  liked  this  proposition,  because 
it  was  bringing  a  direct  vote  upon  the  question  of 
restrictions.  He  suggested  that  Mr.  C.  would  at- 
tain his  object  perhaps  more  directly,  by  modify- 
ing his  proposition  as  follows : 

The  qualified  electors  of  the  state  are  hereby  declared 
competent,  an  I  may  in  the  manner  prescribed  in  this  arti 
cle,  elect  any  one  of  their  number  Governor  of  this  state. 

„  Mr.  CHATFIELD  would  very  cheerfully  ex- 
cept the  amendment. 

Mr.  RICHMOND  said  that  the  Convention  had 
voted  sub.stdiitiallj  upon  this  proposition  twice 
before. 

Mr.  MORRIS :  There  is  no  danger  of  its  adop- 
tion. 

Mr.  SIMMONS:  There  is  too  much  meta- 
physics about  il. 

Mr.  A.  WRIGHT  called  for  a  division  on  the 
question  of  striking  out  and  inserting. 

The  PRESIDENT  decided  the  amendment  to 
be  in  order,  and  the  question  not  to  be  divisible. 

Mr.  CROOKER  would  like  to  know  what  the 
committee  on  the  elective  franchise  were  going 
to  do  in  retard  to  the  p.iupers,  lunatics  and  idiots, 
before  he  voted  on  this  proposition.  He  would 
not  like  to  vote  them  competent  tor  Governer. 

Mr.  CHATFIELD:  Yes,  those  also,  if  the 
people  ch  lose  to  elect  them. 

Mr.  S  1'ETSON  suggested  that  the  word  com» 
peterit,  had  a  meaning  beyond  mere  eligibility. 

Mr.  WORDEN  thought/there  could  be  no  doubt 
as  to  the  meaning  of  the  section. 

Mr.  MILLER  hoped  the  Convention  would  not 
be  taken  by  surprise.  Did  we  want  to  allow  peo- 
ple like  pauoers  ;:n:l  vagabonds,  ot  every  kind,  to 
be  Governor  ?  He  had  no  such  wisn  at  any  rate. 

Mr.  RHOADES  said  that  it  had  already  been 
determined  by  the  debaies  here  that  there  was  a 
number  of  candidates  for  governor  on  the  floor. 
He  wanted  members  to  understand  that  in  voting 
for  this  amendment,  they  would  disqualify  mem- 
bers of  this  convention  from  being  a  candidate 
Cor  that  office.  His  friend  on  his  left  (Mr.  HOFF- 
MAN) was  not  a  voter,  having  changed  his  resi- 
dence, and  he  (Mr.  R.)  would  appeal  tohisdemo- 
craiic  friends  at  any  rale,  in  the  present  division 
of  sentiment,  as  to  a  candidate  for  gorernor,not  to 
disqualify  him. 

Mr.  STOW  moved  to  amend  the  substitute  by 
introducing  ihe  words  "as  no  restrictions  of  any 
kind  either  as  to  age,  citizenship,  residence,  or 
profession  are  reasonable,  therefore." 

Mr  BASCOM  said  that  then  the  proposition 
would  be  entirely  antagonistic  to  itself,  because 
the  next  line  did  go  on  to  assert  the  restrictions 
of  electors. 

Mr.  STOWS  amendment  waa  here  rejected. 


344 


Mr.  CHATFIELD  said  that  it  (here  were  any 
gentlemen  on  the  floor,  so  situated  as  alluded  to 
by  the  gentleman  from  Onondaga  (Mr.  RHOADES,) 
to  provide  for  such  ?n  unforeseen  and  unfortunate 
contingency,  he  would  be  willing  to  add  to  the 
end  of  his  amendment  *'  and  no  person  shall  be- 
come ineligible  in  consequence  of  having  remov- 
ed from  one  part  of  the  state  to  the  other."  It  his 
friend  from  Herkimer  was  desirous  to  be  a  candi- 
date tor  goveinor  he  would  press  his  motion. 

Mr.  LOOM  IS  thought  this  amendment  better 
adapted  to  another  part  of  their  business  than  to 
the  present  section.  He  would  with  great  pleas- 
ure go  tor  having  the  amendment  put  in  the  bill 
of  rights,  where  the  rights  and  powers  of  the  cit- 
izens were  defined.  To  his  mind  it  seemed  to  be 
rather  ad  captandum  then  to  desire  to  express  in 
this  article  the  restrictions  intend  to  be  imposed 
on  this  subject.  He  had  nodoubt  but  what  thisCon- 
vention  acting  as  a  committee  of  the  whole  peo 
pie,  might  lay  down  such  rules  and  regulations 
with  respect  to  the  exercise  of  the  popular  will, 
for  their  approval  in  the  adoption  of  the  constitu-- 
tion,  as  it  might  be  supposed  that  they  would  ap- 
prove. We  propose  certain  measures,  which  they 
cannot  amend,  but  either  must  approve  or  disap 
prove.  The  system  of  nomination  by  informal 
eaucusses  had  in  effect  become  a  part  of  our  sys- 
tem of  government — ihe  people  delegate  to  these 
bodies  the  power  to  nominate  and  place  before 
them  candidates  for  Governor.  Therefore,  the 
question  here  appeared  to  him  to  be,  between  this 
Coav  ntion  and  the  ones  for  nominating  candidates 
for  office.  And  this  convention  might  with  per. 
f  »ct  propiiety  secure  the  electors  of  the  State 
against  the  improper  acts  of  nominating  conven- 
tions. He  regarded  it  however,  as  a  mere  ques- 
tion of  expediency — as  to  how  far  we  should  re- 
strict the  action  of  the  nominating  conventions — 
not  the  actions  of  the  people.  It  was  to  prescribe 
for  those  conventions  rules  of  proceeding — precise, 
ly  analogous  to  the  adoption  of  rules  by  this  con 
veRtion.  He  should  therefore  vote  against  insert 
ing  the  amendment  in  this  article. 

Mr.  WORDEN,  on  the  suggestion  of  some  gen- 
tlemen, agreed  to  substitute  the  words  "  in  this 
Constitution"  for  the  word  "  Article." 

Mr.  SIMMONS  hoped  this  amendment  would 
not  prevail  because  it  was  ultra,  and  because  it 
assumed  what  was  false  in  fact.  Mr.  S.  contend- 
ed further  that  the  question  had  already  been 
voted  down  two  or  three  times. 

Mr.   CHATFIELD  said  that  upon  reflection 
he  must  prefer  now  his  own  proposition  and  he 
confessed  that  he   regretted  having  accepted  th 
substitute. 

Mr.  WORDEN  said  that  if  the  gentleman  woulc 
allow  him  he  would  withdraw  it. 

Mr.  SHEPARD  hoped  not,  for  if  he  did  he 
(Mr.  S.)  would  offer  precisely  the  same  thing. 

Mr.  WORDEN  was  bound  after  what  the"  gen 
tleman  had  said  to  withdraw  it  as  a  matter  of  par- 
liamentary courtesy. 

Mr.  CHATFIELD  then  proposed  his  original 
amendment.  He  did  it  because  it  was  a  simpL 
and  distinct  proposition,  and  because  he  was  sen 
sible  that  it  would  secure  more  votes  than  would 
that  of  the  gentleman  from  Ontario.  For  himsel 
however  he  was  perfectly  free  to  vote  for  the  other 
for  he  conceived  it  to  be  the  affirmance  of  the 


p-eat  and  distinct  principle,  to  which  he  was 
ommitted  over  and  over  again  in  feeling,  prin- 
iple  and  expression,  that  the  people  of  the  State 
re  competent  to  select  any  and  every  body  they 
may  choose  as  their  officers.  A  great  error  in 
he  argument  of  Mr.  LOOMIS  was  the  assumption 
hat  it  was  not  the  people  themselves,  but  a  nomi- 
lating  convention  who  decide  the  selection.  He 
mdertook  to  say  that  those  conventions  could 
ontrol  nothing,  did  control  nothing — but  merely 
ent  a  nomination  down  to  the  people  for  ratifi- 
cation. And  did  the  gentleman  suppose  that 
hey  would  ratify  any  other  than  a  man  of  intelli- 
gence and  integrity.  And  it  was  by  no  means 
certain  that  this  business  would  always  be  done 
n  this  way.  The  gentleman  from  Essex  said  that 
;his  amendment  was  ult<-a.  Every  reform  that 
lad  been  suggested  had  been  combatted  as  ultra. 
:Ie  was  sorry  that  the  gentleman  had  not  discov- 
ered that  these  reforms,  ultra  and  radical  as  they 
vere,  were  the  darling  doctrines  and  measures  of 
;he  people.  Public  opinion  was  all  one  way  and 
.n  affirmance  of  the  principle  that  the  people  were 
competent  to  select  their  own  officers,  and  to  go- 
vern themselves.  He  warned  that  gentleman 
and  every  other  man  here  who  took  this  high 
federal  ground  here,  that  they  were  digging  their 
own  political  graves.  And  he  would  say  to  the 
gentleman  from  Essex  that  if  he  intended  to  stand 
with  the  people  and  well  with  them,  that  he  must 
^0  with  them,  and  act  with  them,  and  not  stand 
up  here  to  oppose  great  reforms  in  our  organic 
iaw  which  the  people  demand  and  approve.  He 
could  not  do  it  without  incurring  the  risk  of  be- 
ing condemned  by  the  people.  The  proposition 
tie  (Mr.  C.)  made  was  but  the  assertion  of  the 
great  inherent  principle  that  the  people  were 
competent  to  govern  themselves. 

Mr.  STETSON  said  that  capacity,  discre- 
tion, integrity  and  patriotism  in  a  chief  magis- 
trate were  the  great  qualities  for  which  he  should 
be  selected.  No  resolution  that  we  could  make 
here  would  direct  public  attention  to  these  quali- 
ties. Having  therefore  to  trust  the  people  in  par- 
ticulars, much  higher  than  the  one  now  sought  to 
be  imposed — it  was  scarcely  worth  while  to  in- 
sist, on  these  minor  qualifications  of  age  and  resi- 
dence. If  the  people  would  regard  one  they 
would  the  other.  These  were  his  views,  and  he 
should  vote  for  the  amendment,  although  he 
did  not  think  it  of  much  importance,  and  he  feared 
it  would  tend  to  divert  the  public  attention  from 
matters  of  much  more  importance. 

Mr.  R.  CAMPBELL  urged  that  the  time  should 
not  be  taken  up  in  a  further  discussion  of  this 
question— gentleman  were  assuming  a  great  deal 
who  supposed  that  they  could  instruct  the  Con- 
vention in  regard  to  it.  It  was  high  time  we  stop- 
ped talking  and  went  to  work. 

Mr.  JORDAN  rose  simply  to  say  that  the  very 
question  now  presented  had  been  voted  on  and 
decided  by  the  convention,  and  he  had  heard  no 
reason  offered  to  change  the  vote  that  was  given 
on  the  subject,  unless  it  was  the  awful  maledic- 
tion of  the  gentleman  from  Otsego,  (Mr.  CHAT- 
FIELD.)  warning  his  political  friends  who  dared 
to  vote  right,  that  they  were  digging  their  own 
political  graves  in  voting  for  this  section  in  this 
form.  So  far  as  concerned  himself,  he  (Mr.  J.) 
would  tell  that  gentleman  he  had  no  fears  on  the 


345 


•subject.  His  political  grave  was  dug  15  years 
ago,  and  dug  by  himself,  by  retiring  voluntary 
from  public  life.  He  voted  against  the  proposi- 
tion in  another  form,  and  should  vote  against  it 
in  its  present  form.  He  therefore  hoped  that  the 
ghost  of  federalism,  digging  of  political  graves, 
and  the  denunciation  of  the  leader  of  the"  respon- 
sible majority,  or  he  who  assumed  to  be  such  here, 
would  not  frighten  gentlemen  from  voting  pre- 
cisely as  their  convictions  lead  them.  For  one, 
he  was  willing  to  place  himself  before  the  people 
on  these  restrictions  of  30  years  of  age  and  five 
years  residence,  and  to  have  it  understood  that 
in  voting  against  this  amendment  he  voted  for 
those  restrictions.  This  being  understood,  he 
had  nothing  more  to  offer,  and  was  willing  to  re- 
cord his  vote. 

Mr.  TALLMADGE  said  that  as  the  attitude  in 
which  he  stood  on  this  question,  had  been  grossly 
misrepresented,  if  not  misunderstood,  it  was  prop- 
er for  him  now  to  explain  his  position.  We  had 
voted  already  to  have  30  years  of  age,  and  five 
years  residence,  and  he  insisted  that  having 
done  that  it  could  only  be  revoked  by  a  reconsid- 
eration. It  had  been  said  that  he  was  not  willing 
to  trust  the  people.  He  would  go  as  far  as  any  Jaco- 
bin in  this  country  or  any  radical,  though  even 
not  on  this  floor,  in  trusting  them.  But  that  was 
not  the  question  involved  in  proposing  these  res- 
trictions. Had  not  gentleman  heard  of  Shay's 
insurrection,  which  rent  Massachusetts  asunder, 
and  overruled  the  State  government.  Had  they 
not  seen  Rhode  Island  torn  asunder  on  a  question 
of  government.  Could  we  not  suppose  a  military 
force  of  the  United  States  of  one  hundred  thou- 
sand mtn,  in  this  State,  and  might  not  there  be 
clanger  01  the  State  government  being  thereby 
overawed.  He  would  therefore,  have  the  pub 
lie  guarded  against  such  contingencies,  and  not 
that  he  distrusted  the  capacity  of  the  people. — 
At  the  proper  time,  he  gave  notice  that  he  should 
move  to  amend,  so  as  to  provide,  in  addition  to 
these  qualifications  of  age  and  residence,  that  no 
person  shall  be  eligible  who  is  not  a  natural  born 
citizen,  or  who  shall  not  be  a  citizen  at  the  time 
of  the  adoption  of  this  constitution.  And  he 
wished  it  to  be  distinctly  understood  that  in  do- 
ing so  he  did  not  distrust  the  capacity  of  the  peo- 
ple. 

Mr,  BRUNDAGE  said  he  desired  to  explain  an 
apparent  inconsistency.  He  had  voted  agains 
retaining  this  qualification  of  age,  not  so  much 
because  he  thought  it  important  whether  it  was 
retained  or  not — but  because  he  thought  all  these 
matters  would  be  attended  to  by  the  people,  whe 
ther  their  attention  was  specially  called  to  it  o 
not,  in  the  constitution.  Yesterday,  he  had  re 
ceived  a  letter  from  oae  of  his  constituents,  wh< 
stood  so  high  in  the  public  estimation  for  his  wis- 
dom and  discretion,  that  he  felt  bound  to  defer  tc 
his  judgment,  which  was  favorable  to  these  res 
trictions,  and  believing  that  such  also  were  th 
views  entertained  by  his  constituents  generally 
though  his  own  were  different,  h«  should  accord 
ingly  go  for  the  qualification  of  five  years  resi 
dence. 

Mr.  LOOMIS  said  this  amendment  was  unex 
ceptionable  in  its  form,  and  he  was  free  to  sa 
that  he  should  prefer  it  to  the  proposition  now  i 
the  article,  but  for  one  thing.  It  made  no  provi 

22 


sion  for  persons  who,  although  competent  and  ca- 
pable electors,  have  changed  their  residence  just 
before  the  election,   and  were  consequently  not 
oters. 

Mr.  CHATFIELD  suggested  that  that  difficul- 
y  could  be  avoided  by  striking  out  **  qualified." 

Mr.  LOOMIS  thought  not.    The  word  qualified 

as  mere  surplusage. 

Mr.  CHATFIELD  replied  th*t  the  temporary 
oss  of  one's  vote,  at  a  single  election  by  a  change 
f  residence,  did  not  make  him  any  the  less  an 
lector. 

Mi.  LOOMIS  said  that  that  was  a  disputed 
uestion.  This  amendment  he  did  not  regard  as 
material,  for  he  looked  upon  all  these  restrictions 
n  the  Constitution  iti  relation  to  competency  as 
mall  matters,  compared  with  the  great  questions 
f  capacity,  integrity  and  patriotism.  And  if  the 
ime  should  ever  come  as  suggested  by  the  gen- 
leman  from  Dutchess,  when  we  are  to^e  threat- 
med  by  military  assumption,  if  he  supposed  such 
'ords  as  these  would  protect  the  people,  he  was 
greatly  mistaken. 

Mr'  W.  TAYLOR  to  relieve  the  amendment 
rom  thie  objection,  suggested  as  a  modification, 

is  proposition,  offered  in  committee  of  the  whole 
— to  say,  every  person  who  had  the  qualifications 
f  an  elector,  save  those  of  county  and  town  resi- 
lence. 

Mr,  CHATFIELD  proposed  to  add  that  no 
change  of  residence  within  this  S'ate,  should  dis- 
qualify. 

Mr,  W.  TAYLOR  then  withdrew  his  amend, 
raent. 

Mr  BRUCE  could  not  vote  for  this  amend- 
ment for  these  reasons:  He  had  voted  to  strike 
mt  the  thirty  years  because  he  deemed  it  a  mat- 
er of  no  sort  of  importance  and  he  had  voted  for 
he  five  years'  residence  because  he  did  attach 
some  importance  to  it.  Therefore  if  he  went 
for  this  resolution  he  should  be  overturning  that 
vote.  Mr  B.  went  011  to  disapprove  of  this 
continual  reversing  of  votes,  as  occupying  time, 
arid  putting  the  action  of  the  Convention  before 
the  people  in  a  ridiculous  hght.  He  was  willing 
to  submit  now  to  what  seemed  to  be  the  clear- 
ly expressed  will  of  the  majority. 

Mr.  R,  CAMPBELL  called  for  the  previous 
question,  but  at  the  request  of  several  gentle- 
men,  withdrew  it. 

The  question  being  then  taken  on  Mr.  CHAT- 
FIELD'S  amendment,  it  was  rejected,  ayes  43,  nays 
7U  as  follows: 


O'Conor,  Patterson,  Powers,  Russell,  Shepard  Ster  ens' 
Stetson,  Swackhamer,  Taft,  W.  Taylor,  Tildeu  Townsend' 
Vache,  Van  Schoonhoven,  Warren,  Whitt,,  Witbeck  Wor' 
den,  W.  B.  Wnght-43. 

NAYS— Messrs.  Angel,  Ayrault,  F.  F.  Backus  H  Back 
us,  Bouck,  BraytoB,  Bruce,  Brundage,  Bull,  D  D  r»mrL 
bell,  Candee,  Clark,  Clyde,  Conely,  Crocker,  Cuddeback* 
Dana,  Dubois,  Forsyth.  Gardner,  Gebhard  Grab* 
Greene,  Harrison,  Hawley,  Hoffman,  Hotchkiss  Huutpr 
A.  Huntington,  E  Huntington,  Hutchinson,  Hyde  Jordan' 
Kemble,  Kmgsley,  Kirkland,  McNitt,  Maxwell  MilW* 
Morris,  Nicholas,  Nicoll,  Parish,  Penniman  Pivsi  iA,V 
Rhoades,  Richmond,  Riker,  Ruggles,  St  John  SaSbW 
Sears,  Shaw,  Sheldon,  Simmons,  Smith,  E  Spencer  Stan' 
ton,  Stow,  Strong,  Taggart,  Tallmadee  J  J  Tuvlnr  " 
hill',  Waterbury,  Willard,  Wood,  A  WrighT  *~ ' 
Young,  Youug«— 71. 


346 


Mr.  HARRISON  then  moved  to  amend  try 
striking  out  and  inserting  as  follows  : 

No  person  shall  be  eligible  to  the  office  of  Governor,  ex 
cept  he  shall  be  thirty  years  of  age,  and  shall  have  been 
for  ten  years  a  citizen  of  the  United  States,  and  for  five 
years  a  resident  of  this  state  next  preceding  his  election 
and  no  person  shall  be  eligible  to  the  office  of  Lieutenan 
Governor,  who  is  not  eligible  to  that  of  Governor. 

Mr.  H.  however  withdrew  his  amendment  a 
the  suggestion  of  others,  that  the  question  hac 
been  sufficiently  tested. 

Mr.  BRUNDAGE  offered  the  following  as  a 
substitute  for  the  section : 

Every  citizen  who  has  been  a  resident  of  this  state  fo 
five  years  next  preceding  the  election,  unless  absent dur 
ing  that  time  on  public  business  of  tnis  state,  or  the  Unitec 
States,  shall  be  eligible  to  the  office  of  Governor. 

Mr.  RICHMOND  :  We  have  already  voted  on 
that  three  times. 

The  amendment  was  lost. 

Mr,  TALLMADGE  offered  the  following  sub- 
stitute : 

No  person  except  a  natural  born  citizen,  or  a  citizen  o 
this  state  at  the  time  of  the  adoption  ot  this  constitution 
shall  be  eligible  to  the  office  of  Governor  ;  neither  shaL 
any  person  be  eligible  to  that  office  who  shall  not  have 
attained  to  the  age  of  30  years,  and  been  five  years  nex 
preceding,  a  resident  within  this  state. 

This  amendment  was  lost. 
Mr.  SHEPARD  moved  to  strike  out  and  insert 
"The  electors  of  this  state  are  competent  to,  and  may 
elect  any  one  of  their  number  to  the  office  of  Governor  , 
and  no  elector  shall  be  rendered  ineligible  to  such  office 
by  any  change  of  residence  in  this  state." 

Mr.  RICHMOND :  We  have  only  voted  on 
that  four  times  this  morning. 

Mr.  CHATFIELD  asked  for  the  ayes  and  noes 
on  the  amendment,  and  they  were  ordered. 

Mr.  TILDEN  said  this  seemed  to  him  to  be 
very  egregious  trifling.  He  hoped  the  vote  on 
this  proposition  would  evince  the  sense  of  the 
Convention  in  regard  to  it. 

Mr.  LOOMIS  asked  if  it  was  in  order.  It  was 
substantially  the  some  proposition  as  voted  down. 

Mr.  RUSSELL  asked  the  mover  to  withdraw  it. 

Mr.  CROOKER  said  there  seemed  to  be  a 
strange  disposition  to  drive  gentlemen  to  a  vote 
on  this  word  competent.  He  moved  to  strike  it 
out. 

Mr.  RUGGLES :  The  question  of  order  should 
be  first  decided  before  any  question  is  put. 

Mr.  TILDEN  also  urged  that  the  question  of 
order,  having  been  raised  by  the  gentleman  from 
Herkimer,  should  be  first  determined. 

The  PRESIDENT  ruled  that  the  proposition 
being  substantially  that  of  the  gentleman  from 
Otsego,  was  not  in  order. 

Mr.  STOW  moved  to  insert  after  the  word  state : 
"  But  no  person  shall  be  deemed  to  have  lost  his  resi- 
dence by  reason  ot  having  been  absent  during  that  time  on 
business  of  this  state  or  of  the  United  States." 

The  PRESIDENT  ruled  that  this  was  substan- 
tially what  had  been  struck  out — and  could  only 
be  reinserted  by  a  motion  to  reconsider. 

Mr.  STOW  moved  a  reconsideration  for  that 
purpose,  which  motion,  under  the  rule,  lies  over. 

The  second  second  was  then  adopted. 

The  third  section  was  then  read,  as  follows  : 
&3.  The  governor  and  lieutenant  governor  shall  be 
elected  at  the  times  and  places  of  choosing  members  of 
the  legislature.  The  persons  respectively  having  the 
highest  number  of  votes  for  governor  and  lieutenant  go- 
vernor shall  be  elected  y  but  in  case  two  or  more  shall 


have  an  equal  and  the  highest  number  of  votes  for  gover- 
nor, or  for  lieutenant  governor,  the  two  houses  of  the  leg- 
islature shall,  by  joint  ballot,  choose  one  of  the  said  per- 
sons so  having  an  equal  and  the  highest  number  oi  votes 
for  governor  or  lieutenant  governor. 

Mr.  SIMMONS  offered  the  following  : 
Strike  out  all  after  the  word  legislature,  in  the  second 
line,  and  insert — "  The  persons  respectively  having  a  ma- 
jority of  all  the  votes  given  respectively  for  Governor  and 
Lieut.  Governor,  shall  be  elected:  But  in  case  no  two  per- 
sons shall  have  received  respectively  a  majority  of  votes 
the  two  houses  of  the  legislature  at  its  next  annual  session, 
shall  forthwith  proceed  to  choose  by  I  allot  a  Governor  and 
Lieut.  Governor,  from  all  the  persons  voted  for  by  the 
people;  and  if  no  choice  is  made  upon  the  first  ballot,  the 
two  houses  in  joint  ballot,  shall  continue  to  ballot,  until  a 
choice  is  made,  rejecting,  afttr  each  such  successive  bal- 
loting, all  votes  given  in  the  next  balloting  for  the  two  per- 
sons who  received  respectively  the  lowest  number  of  vote* 
by  the  people  and  not  before  rejected." 

Mr.  SIMxMONS  then  went  on  to  explain  his 
amendment,  not  with  any  hope  he  saiu  of  having 
it  adopted,  but  to  test  the  strength  of  the  princi- 
ple that  the  majority  should  govern.  The  ten- 
dency of  the  plurality  system  was  to  keep  up  a 
a  sort  of  triangular,  if  not  inultrangular  state  of 
paities  very  much  to  the  public  detriment.  If 
that  was  democracy — then  democracy  had  got 
down  to  very  narrow  limits.  He  might  be  entire. 
ly  alone  in  this  vote.  But  that  was  of  no  conse- 
quence to  him.  For  notwithstanding  the  saluta- 
ry warning  of  the  gentleman  from  Otsego,  he  was 
inclined  to  think  that  old  Moriah  and  some  other 
towns  in  this  county,  would  take  care  of  him.  It 
was  like  the  late  Mr.  Van  Rensselaer  of  this  city, 
who  when  asked  to  head  a  subscription  for  a 
church  or  some  such  object,  generally  told  the 
applicants  first  to  get  all  they  could  from  others, 
and  then  to  draw  on  him  for  the  balance.  Such 

as  old  Moriah.  His  amendment  proposed  to 
2[ive  the  control  to  the  majority  and  not  to  a  mere 
faction  or  plurality,  and  by  the  vote  on  it  we 
should  see  who  were  the  patent  right  democrat* 
here. 

Mr.  A.  W.  YOUNG  urged  that  there  should  be 
no  more  discussion  ori  this  article. 

The  question  being  taken,  Mr.  SIMMON'S 
amendment  was  voted  down. 

The  third  section  was  then  adopted. 

The  fourth  section  was  then  read  as  follows  ? 

§4.  The  governor  shall  be  commander-in-chief  of  the  wu'it> 
tary  and  naval  forces  of  the  state.  He  shall  have  power  to 
convene  the  legislature,  (or  the  Senate  only,)  on  extra- 
ordinary occasions.  He  shall  communicate  by  message, 
,o  the  legislature  at  every  session,  the  condition  of  the 
itate,  and  recommend  such  matters  to  them  as  he  shall 
,udge  expedient.  He  shall  transact  all  necessary  business 
with  the  officers  of  government,  civil  and  military.  He 
hall  expedite  all  such  measures  as  may  be  resolved  upon 
>y  the  legislature,  and  shall  take  care  that  the  laws  are 
aithfully  executed.  He  shall,  at  stated  times,  receive  for 
lis  services,  a  compensation  to  be  established  by  law,  which 
ihall  neither  be  increased  or  diminished  after  his  election 
and  during  his  continuance  in  office. 

Mr.  WOOD  moved  to  add, 

"  But  ia  no  case  shall  he  receive  more  than  $4,000  an- 
nually." 

This  was  voted  down, 

Mr.  TALLMADGE  moved  to  strike  out  "  con- 
inuance  in  office,"  and  insert  "  term  of  office" — 
aying  that  the  word  continuance  might  imply 
he  continuance  of  a  Governor  in  office  for  a  se- 
;ond  or  third  term. 

Mr.  STETSON  said  these  words-were  inserted 
t  his  instance,  and  avowedly  for  the  purpose  of 


347 


avoiding  the  construction  the  gentleman  proposed 
to  give  to  the  section. 

Mr.  T.'s  amendment  was  rejected. 

The  fourth  section  was  then  adopted. 

And  then  the  Convention  adjourned. 


SATURDAY,  (39th  day,)  July  18. 
Prayer  by  the  Rev.  Mr.  KNAPP. 
Mr    BURR  offerred  the  following  resolution  : 
Resolved,  That  for  the  future  members  will  voluntarily 
restrict  themselves  in  speaking,  so  that  no  member  on  any 
question-  will  occupy  more  than  fifteen  minutes. 

Mr.  BURR  said  that  the  great  propriety  of 
adopting  some  such  resolution  as  this,  must  be 
apparent  to  every  gentlemen  in  Ihis  Convention. 
Up  to  this  day  they  had  been  there  48  days,  this 
was  of  course  including  Sundays,  and  the  three 
days  in  July  (3d,  4th  and  6th,)  which  they  had 
appropriated  to  themselves  as  holidays,  and  39 
working  days  (so-called)  were  left;  out  of  these 
20  had  been  spent  only  in  hardly  arranging  the 
business;  and  19  in  the  discussion  of  this  celebra 
ted  report  of  commitiee  No.  5.  On  last.Thurs- 
day  they  succeeded  in  getting  through  this  report 
in  committee  of  the  whole;  yesterday  they  took 
it  up  in  the  House  and  spent  the  whole  day  in 
getting  through  only  as  far  as  to  the  4th  section, 
and  it  was  extremely  doubtful  whether  they  would 
finish  it  up  to-day  But  supposing  they  did,  then 
how  far  had  they  advanced  ?  It  was  but  reason- 
able to  suppose  that  this  report  was  but  one 
eighteenth  part  of  what  would  come  before  them. 
Assuming  this  to  be  the  fact,  then  if  we  were  to 
sit  here  until  the  first  of  October, and  beyond  that 
day,  VK>  should  not  and  could  not  stay,  then  we 
should  h;*ve  but  about  three  days  to  each  report. 
For  one  he  would  say  that  his  constituents  did 
not  send  him  here  to  make  long  speeches.  They 
would  not  look  over  the  daily  proceedings  for  his 
speeches  They  knew  him  as  one  who  was  not 
famous  for  much  speaking,  but  they  believed  he 
had  a  little  common  sense  and  some  business  ca 
pacity,  and  desired  to  comply  with  their  expecta 
ttons.  He  said  from  the  experience  of  past  days 
it  was  evident,  that  certain  gentlemen  on  the  floor 
of  that  house  thought  that  no  proposition,  no  mat- 
ter how  trivial  it  might  be,  could  be  understooc 
by  the  lay  members,  unless  three  or  four  speeches 
were  made  on  each  side  Now  he  had  person- 
ally been  very  much  gratified  with  the  eloquen 
speeches  which  had  been  made,  and,  did  time 
allow,  he  would  like  to  hear  still  more  of  the 
same  kind.  But  he  would  submit  to  these 
learned  gentlemen  to  say  whether  such  torrents  o 
eloquence  were  necessary  to  enable  lay  members 
to  understand  and  vote  upon  every  proposition 
presented  ?  He  would  tell  them  that  he  believec 
that  himself  and  others,  though  they  were  but  far 
mers,  could  read  these  reports  and  understam 
them  without  being  deluged  with  such  a  flood  o 
speeches,  and  so  could  their  constituents.  He 
submitted  to  the  sound  sense  of  the  Conventior 
whether  they  should  not  from  this  time  ou 
restrict  themselves  in  some  such  manner  as  he  hac 
indicated  in  this  resolution  ? 

Mr.  NICOLL  considered  that  the  object  of  th 
mover  of  the  resolution  was  entitled  to  praise.  Al 
were  agreed  that  there  had  been  too  much  speak 
ing.  But  the  gentleman  must  be  aware  that  i 
was  impracticable  to  adopt  it ;  for  there  were  ma 


iy  subjects  which  would  come  before  the  Con- 
ention  that  could  not  be  explained  properly  m,a 
peech  of  15  minutes.  He  hoped  therefore,  as 
he  object  of  the  mover  was  attained,  that  the  re- 
olution  would  bewithdrawn;  otherwise  he  should 
e  obliged  to  move  to  lay  it  on  the  table. 

Mr.  BURR  had  no  objections  to  withdraw  his 
esolutinn.  It  had  served  his  purpose,  which  was 
o  call  the  attention  of  the  Convention  to  the 
hameful  consumption  of  time  in  speech-making. 

The  resolution  was  then  withdrawn. 

Mr.  LOOMIS  moved  the  following  resolution: 

Resolved,  That  it  is  the  duty  of  the  Convention  to  pro- 
:eed  without  delay  to  the  consideration  of  the  restrictions 
iroperto  be  established  against  special  legislation,  and  the 
;reation  of  public  debts,  and  the  reorganization  of  the  leg- 
slative  and  judicial  departments  of  the  government. 

Mr.  LOOMIS  said  that  in  consequence  of  the 
ery  unceremonious  manner  in  which  the  report 
of  his  select  committee  was  yesterday  laid  on  the 
able,  on  the  motion  of  the  gentleman  from  Onei- 
da,  (Mr.  KIRKLAJOJ,)  after  his  argument,  with- 
out hearing  the  other  side,  he  was  constrained  to 
jring  this  subject  up  again  to-day.  It  appeared 
:o  him,  (Mr.  L.)  that  the  convention  must  be  sa- 
tisfied that  it  was  callsd  for  the  purpose  of  dis- 
cussing and  settling  certain  great  and  important 
questions — that  there  were  particular  and  promi- 
nent questions  before  the  people,  which  induced 
them  to  call  this  convention  together ;  among 
which  were  those  subjects  that  were  likely  to 
come  up  first  for  consideration,  and  which  he  had 
pointed  out  in  his  report.  The  length  of  time 
that  had  elapsed  since  they  first  met,  was  now 
seven  weeks — half  the  time,  perhaps,  that  ought 
to  be  spent  on  the  whole  subject  of  the  Conven- 
tion— and  yet  they  had  not  yet  touched  any  one 
of  those  questions  which  the  convention  was  call- 
ed here  to  consider.  The  powers  and  duties  of 
the  Executive,  so  far  as  they  had  been  settled  in 
the  debate  which  they  had  been  going  through 
for  the  last  few  weeks,  were  not  subjects  that  had 
been  agitated  by  the  people  or  brought  to  the 
public  attention,  and  might  have  been  left  to  the 
last  to  be  considered.  The  subject  which  would 
come  up  next,  if  the  Convention  should  fail  to  es- 
tablish an  order,  was  one  to  which  the  public  at- 
tention had  not  been  called,  and  yet  it  was  a  sub- 
ject that  would  be  fruitful  |of  debate,  more  than 
any  other — he  alluded  to  the  bill  of  rights.  That 
was  the  next  in  order — ^Cries  of"  Oh,  no,  that  is 
not  so;  the  report  of  committee  No.  6.)  Now 
who  ever  heard  as  an  inducement  to  call  this  con- 
vention, any  lack  of  declaration  on  that  subject? 
It  was  not  fair,  then,  when  they  were  called  to 
effect  certain  great  and  important  objects,  to  com- 
mence their  business  with  those  of  less  impor- 
tance, to  which  the  public  attention  has  not  been 
called,  or  on  which  the  people  have  not  spoken. 
He  thought  it  was  time—  and  in  that  opinion  he 
hoped  the  convention  would  concur — to  take  up 
those  subjects  to  which  public  attention  had  been 
universally  called.  The  gentleman  from  Oneida, 
(Mr.  KIRKLAND)  yesterday,  in  moving  to  lay  the 
report  on  the  table,  after  making  a  speech  him- 
self, did  it  under  color  that  it  would  take  up  too 
much  time  to  consider  it.  What  ?  Take  up  time  to 
settle  the  order  of  business,  after  taking  up  three 
weeks  on  questions  f  >r  which  the  Convention  was 
not  called  together?  He  hoped  the  resolution 
would  be  adopted,  and  then  these  questions  of  lesj 


348 


importance  could  be  discussed  if  they  pleased, 
after  they  had  got  through  with  the  lest.  It  was 
with  this  view  a  few  days  ago  he  felt  constrained 
— and  he  did  so  with  the  advice  of  many  members 
here — to  offer  his  resolution  for  the  purpose  of 
settling  the  order  of  business  He  had  no  parti- 
cular choice  as  to  precedence  of  the  reports,  ex- 
cept to  take  up  first  the  great  subjects  which  have 
agitated  the  public  mind — those  subjects  on 
which  delegated  power  has  been  abused,  and  in 
which  we  have  hitherto  lacked  constitutional 
provisions — and  he  should  not  have  the  slightest 
feeling  if  the  Convention  should  establish  'any 
other  order  than  that  reported  by  the  special  com- 
mittee, only  let  some  order  be  adopted  at  once. — 
He  had  felt  bound  to  offer  this  resolution,  that  be 
might  submit  these  remarks  on  this  question,  for 
in  merely  calling  for  ihe  order  of  business  he 
would  not  have  been  at  liberty  to  do  so;  and  he 
was  free  to  say  that  his  object  was  to  take  «p  this 
question  this  morning  and  dispose  of  it.  They 
would  probably  to-day  get  through  the  report  of 
the  committee  of  the  whole  on  the  Executive  now 
before  the  Convention ;  and  then  proceed  to  the 
next  subject;  and  he  deemed  it  important  to  settle 
what  shall  be  the  order,  and  what  f  hall  be  the 
next  subject.  He  hoped  that  there  would  be  no 
serious  debate  on  this  question  ot  priority  of  busi 
hess.  It  did  not  become  him,  with  that  view  to 
state  the  reasons  why  he  had  placed  them  in  the 
order  in  which  they  stood  in  the  resolution,  but  he 
would  do  so  if  it  were  desired  by  the  Convention. 

Mr.  KIRKLAND  said  that  the  gentleman  had 
announced  that  his  purpose  in  offering  the  reso- 
lotion  was  to  allow  him  to  have  a  speech  upon 
the  subject.  Mr.  K.  believed  that  there  was  no 
utility  or  practical  good  in  the  discussion  of 
mere  abstract  questions  of  this  kind.  There  was 
no  time  to  be  spared  to  such  a  discu.-sion  ;  too 
much  had  been  spent  in  thrs  way  already.  If  Ihe 
gentleman  desires  to  have  a  report  taken  up  at  a 
particular  time,  he  could  effect  his  object  at  any 
time  by  moving  to  go  in'o  committee  of  the  whole 
upon  it.  But  his  resolution  proposes  no  mode  of 
action.  Now  is  it  not  competent  for  members  to 
decide  as  to  the  questions  that  arise  what  shall  or 
shall  not  be  the  order  of  business  ?  Why  certain- 
ly it  is.  We  need  not  prescribe  it  in  advance. — 
He  (Mr.  K.)  wished  to  have  every  thing  here 
take  the  regular  course;  and  the  Convention 
could  easily  pass  on  them  without  much  discus- 
sion, whereas  if  they  should  attempt  to  prescribe 
an  inflexible  rule  the  entire  day  would  be  con- 
sumed in  discussing  the  various  propositions  and 
their  respective  merits.  The  resolution  of  the 
gentleman  from  Herkirner,  (Mr.  LOOMIS,)  as  it 
now  stood,  would  tend  to  no  good  nor  any  practi- 
cal result ;  it  does  not  advise  or  recommend  any 
particular  action ;  it  merely  says  abstractly  that 
so  and  so  should  be  done ;  recommends  a  mere 
abstract  proposition.  Now  he  (Mr.  K.)  thought 
that  at  this  late  day  the  Convention  really  could 
not  afford  to  spread  its  valuable  time  in  discussing 
mere  abstract  propositions,  which  led  to  no  de- 
sirable result.  He  moved  to  lay  the  resolution  on 
the  table,  as  he  had  done  with  a  similar  one  yes- 
terday. He  (Mr.  K.)  withdrew  it  at  the  request 
of  Mr.  WARD. 

Mr.  WARD  said  that  gentlemen  well  knew  he 
had  cot  taken  up  in  7  weeks  half  an  hour  of  the 


time  ot  the  Convention.  There  was  at  present 
no  rule  regulating  the  order  of  business;  and  oo 
that  account,  the  gentleman  from  Heikimer  (Mr. 
LOOMIS,)  had  done  perfectly  right  in  presenting 
the  resolution  to  lay  down  a  rule  for  the  order  in 
which  business  was  to  be  observed.  What  waa 
the  case  in  all  olher  legislative  bodies  ?  Why, 
that  a  general  order  should  be  adopted;  and  on 
this  order  every  bill  was  entered  in  the  order  IB 
which  they  were  reported  ;  and  they  were  all 
taken  up  in  that  order.  But  in  this  Convention 
there  is  at  present  no  such  order.  Therefore  it 
was  important  that  some  rule  should  be  adopted 
in  relation  to  it,  rather  than  that  the  subjects 
should  be  left  tobe  taken  op  at  the  caprice  of  any 
person.  He  wished  this  resolution  therefore  to 
be  considered;  and  not  laid  on  the  table ;  he  had 
no  wish  to  see  it  adopted  j  by  no  means;  but  by 
tar  the  best  course  was  to  establish  at  once  either 
this,  or  some  good  general  rule  ior  the  disposal  of 
thib  business. 

Mr.  TALLMADGE  hoped  the  resolution  would 
be  laid  on  the  table.  He  hoped,  however,  that 
the  Convention  would  decide  to  take  up  first 
those  reports  which  were  of  the  most  importance 
to  our  constituents.  The  two  great  committees, 
that  on  Canals  and  on  the  Judiciary  have  not  yet 
reported  There  was  no  necessity  for  anticipate 
ing  the  action  of  committees  who  had  not  yet 
reported,  but  who  were  laboring  assiduously  to 
bring  the  subjects,  which  have  been  submitted  to 
them  to  completion,  by  taking  up  reports  which 
had  no  connection  with  these  committt-es  in  ad- 
vance. The  report  upon  the  rights  and  privi- 
leges of  citizens  was  of  eminent  importance  to 
the  people,  as  much  or  more  so  than  all  these r 
the  rights  of  witnesses  for  instance  :  a  man  comes 
from  Philadelphia  in  the  rail  cars;  his  pocket 
is  picked  of  all  that  he  has  in  the  world;  he 
reaches  New  York  ;  he  is  a  stranger  ;  he  is  put 
into  jail  to  be  preserved  as  a  witness;  the  pick- 
pocket by  means  of  the  money  he  has  stolen,  fees 
a  lawyer,  hires  bail,  and  goes  at  large  to  rob  again. 
Ought  not  this  great  evil  tobe  remedied? — 
A  short  time  since  a  young  woman  was  lav- 
ished by  three  villains  a  short  distance  from  this 
city,  in  Greenbush;  the  three  villains  were  bailed 
by  means  of  money  and  are  still  at  large;  whilst 
the  poor  woman  'has  been  locked  up  in  jail  for 
fifteen  months,  as  a  witness;  and  it  was  not  till 
the  chairman  of  this  committee  (Mr.  T.)  heard 
of  it,  and  obtained  the  interference  of  some  hu- 
mane persons  that  she  was  released.  When  all 
the  real  develcpements  were  made  on  this  subject 
the  Convention  would  be  astounded.  And  yet 
gentlemen  here  talk  of  the  reports  of  Commit- 
tees on  the  mere  petty  squabbles  for  office  and 
private  incorporations  taking  the  precedence  of 
this  all  important  subject. 

The  motion  to  lay  on  the  table  was  carried,  49 
to  32. 

Mr.  LOOMIS  then  moved  to  proceed  to  the 
consideration  of  his  report  in  relation  to  the   or- 
der of  business  and  demanded  the  ayes  and  noes. 
The  House  refused  to  consider,  ayes47,noes  57. 
Mr.    BROWN  moved  that   resolutions  should 
only  be  considered  on  Monday  morning's,   except 
such  as  were  reported  by  standing  or  select  com- 
mittees. 


349 


Mr.  CHATFIELD  moved  to  add  "  and  shall  be 
decided  without  debate." 

Mr.  BROWN  said  there  was  an  obvious  reason 
why  this  resolution  should  pass  ;  they  had  had  at 
least  1000  resolutions  presented  there. 

Mr.  STRONG.     Say  500  (Laughter.) 

Mr.  BROWN.  Well,  that  was  certainly  with- 
in bounds  ;  and  400  of  these  never  would  be  heard 
of  again.  An  hour  every  morning  was  consumed 
by  them. 

Mr.  BASCOM  hoped  the  resolution  would  pass; 
but  not  the  amendment  to  it;  many  resolutions 
might  be  offered  there  of  a  character  that  ought 
not  to  be  adopted  or  passed  over  in  silence  ;  the 
committee  ought  not  thus  to  be  committed  by  any 
such  a  course. 

Mr.  CHATFIELD  replied  that  there  was  no 
danger  of  this. 

Mr.  HOFFMAN  said  that  this  was  a  very  im- 
portant rule,  and  it  ought  to  go  to  the  committee 
on  rules,  to  be  considered  carefully  before  such 
a  precedent  was  adopted ;  or  such  a  stringent 
rule  put  in  practice. 

Mr.  BROWN  said  that  this  rule  had  been 
adopted  in  the  House  of  Representatives  at  Wash- 
ington from  time  immemorial.  They  had  found 
it  absolutely  necessary  to  have  such  a  rule  as  this 
in  order  to  get  along  with  their  business. 

Mr  SALISBURY  said  that  at  any  rate  he  hoped 
that  some  plan  would  be  adopted  in  order  to  re- 
strict unnecessary  debate  on  mere  resolutions  of 
enquiry. 

Mr.  DANFORTH  considered  it  a  reflection  on 
the  intelligence  of  the  Convention. 

The  resolution  was  sent  to  the  committee  on 
rules 

A  communication  was  received  from  Wm.  P. 
Hallett,  inviting  an  investigation  into  the  charges 
preferred  against  him. 

The  committee  of  the  whole,  Mr.CHATFIELD 
in  the  chair,  then  resumed  the  consideration  of 
the  article  in  relation  to  the 

POWERS  AND  DUTIES  OF  THE  EXECUTIVE 
DEPARTMENT. 

Mr.  FLANDERS  moved  a  slight  alteration  of 
the  phraseology  of  the  first  part  of  the  4th  section 
—so  that  it  would  read  as  follows  :  "  The  Gov- 
ernor shall  be  commander  in-chief  of  the  military 
and  naval  forces  and  of  the  militia  of  the  State, 
except  when  they  shall  be  called  into  the  actual 
service  of  the  United  States"  (The  proposed 
amendment  is  in  italic.) 

Mr.  FLANDERS  said  that  he  had  been  induced 
to  make  this  motion  (although  the  phraseology 
had  been  fixed  in  committee  before  on  his  own 
motion,)  at  the  suggestion  of  his  friend,  Mr. 
WA.RD,  and  the  gentleman  from  New  York, 
(Mr.  O'CoNOR,)  who  said  the  section  was  not 
comprehensive  enough. 

Mr.  SALISBURY  asked  if  this  fourth  section 
had  not  already  been  passed  on. 

The  PRESIDENT  said  it  had  not. 

Mr.  SIMMONS  called  for  the  reading  of  it. 

Mr.  PATTERSON  objected  to  the  amendment. 
He  wanted  the  governor  to  be  at  all  times  the 
Comrnand£r-in-Chief  of  the  militia  of  this  State; 
as  well  in  time  of  peace,  as  when  they  should  be 
called  into  the  service  of  the  United  States.  As 
to  the  governor  not  being  commander,  &c.,  of  our 
militia  in  time  of  war 


Mr.  FLANDERS  said  the  gentleman  had  mis- 
understood  him. 

The  section  was  read  again. 

Mr.  PATTERSON  :  Then  I  am  right ;  and  I 
should  like  to  know  what  is  the  difference  be- 
tween the  military  of  the  State  and  the  militia  of 
the  State  ?  We  have  no  military  force  but  the 
militia. 

Mr.  MANN  said  that  all  this  discussion  had 
been  idle,  for  that  this  very  section  had  been  pass- 
ed upon. 

Mr.  WARD  said  that  he  was  in  faver  of  the 
amendment.  Hitherto  he  had  not  trespassed  five 
minutes  on  the  time  of  the  Convention.  But  he 
was  compelled  to  make  a  single  remark  here. 
The  term  admiral  of  the  navy  was  very  properly 
inserted  in  the  Constitution  of  1777,  because  be- 
ing an  independent  colony  at  that  time,  we  were 
entitled  to  have  both  our  own  land  and  naval 
forces  ;  but  subsequently  all  such  power  was  con- 
ferred on  the  United  States  government.  The 
governor  is  now  commander-in-chief  of  all  our 
militia ;  yet  a  small  portion  of  our  militia  might 
be  called  into  the  service  of  the  general  govern- 
ment, and  the  governor  could  not  then  be  their 
commander-in-chief,  that  power  being  vested 
solely  in  the  President  of  the  United  States.  The 
amendment,  therefore,  was  necessary  to  obviate 
any  difficulty  that  might  occur  in  the  construction. 

Mr.  BROWN  opposed  the  amendment;  this 
proposition  was  to  continue  the  governor  of  this 
State  in  command  of  troops,  even  after  they  had 
been  mustered  into  the  service  of  the  United 
States  ;  when  by  the  Constitution  the  President 
of  the  United  States  became  commander-in-chief 
of  them  ;  now  there  could  not  be  two  command- 
ers-in-chief  of  the  same  forces.  The  section  was 
right  as  it  stood  now. 

Mr.  FLANDERS  said  that  the  time  of  the  Con- 
vention was  by  far  too  valuable  to  be  taken  up  in 
unnecessary  discussion  ;  six  weeks  of  its  valuable 
time  had  been  almost  wasted  in  long  speeches ; 
and  as  he  only  offered  it  against  his  own  convic- 
tions, but  in  deference  to  the  judgment  of  the 
honorable  chairman  of  military  affairs  (Mr. 
WARD)  he  would  now  withdraw  it. 

Mr.  WARD  :  Then,  sir,  I  certainly  shall  re- 
new it. 

Mr.  SIMMONS  rose  to  speak  amidst  loud  long 
and  vociferous  cries  of  "Question,  question."  He 
said  that  the  amendment  was  a  very  proper  one. 
There  was  nothing  in  the  Constitution  to  prevent 
this  State  from  having  an  army  or  navy  in  time  of 
peace  ;  nothing  whatever ;  or  having  them  both 
even  in  time  of  war  by  the  assent  of  Congress. 
The  phraseology  of  the  4th  section  was  all  wrong; 
and  would  be  unconstitutional  without  this  amend- 
ment or  something  like  it.  He  preferred  to  have 
the  word  "  militia"  omitted,  but  he  would  rather 
have  it  there  than  lose  the  whole  amendment. — 
What,  he  would  ask,  was  the  meaning  of  the 
words  "commander  in  chief?"  If  the  organic  law 
of  this  state  declared  the  Governor  to  be  comman- 
der-in-chief of  the  forces  of  the  State,  absolutely 
and  unqalifiedlv,  without  distinction  of  time, 
whether  of  war  or  peace,  then  the  Governor  was 
Commander-in-chief  to  all  interests  and  purposes, 
as  far  as  the  constitution  could  make  him  so  ;  and 
the  only  way  he  could  cease  to  be  commander-in- 
chjef  and  subordinate  to  the  President,  in  coa- 


350 


formity  to  the  United  States  constitution,  was  by 
construction.  He  thought  the  language  of  the 
constitution  should  be  plain  and  unambiguous, 
and  not  liable  to  any  misconstruction  from  any 
quarter. 

Mr.  O'CONOR  rose  amid  loud  cries  of"  Ques- 
tion. "  He  said  there  seemed  just  now  to  be  a 
great  row  made  about  letting  a  member  speak  ;— 
although  for  one,  he  had  been  for  the  first  twen- 
ty odd  days  a  silent  and  a  listening  member.  He 
was  in  favor  of  the  amendment.  By  the  4th  sec- 
tion of  the  second  article  of  the  Constitution  of 
the  United  States,  the  first  clause,  the  President 
is  Commander-in-Chief  not  only  of  the  Army  and 
Navy  of  the  United  States,  but  also  of  the  militia 
of  the  several  States  when  called  into  the  actual 
service  of  the  United  States ;  of  the  several  States 
not  of  the  whole  of  them  in  the  aggregate ;  but  of 
each  separately.  Now,  are -they  also  to  be  under 
the  chief  command  at  that  time  of  the  Governor 
of  this  State,  as  well  as  the  chief  command  of  the 
President.  There  cannot  be  two  c^ie/coinmand- 
ers. 

Mr.  VAN  SCHOONHOVEN  thought  the  sec- 
tion read  right  without  any  alteration.   When  the 
militia  were  called  into  actual  service  by  the  Pre- 
sident, they  become  de  facto  United States  troops 
and  are  under  command  of  the  President. 
Messrs.  RUSSELL  and  W.  TAYLOR  lollowed. 
Mr.    CONELY   saw  no  necessity  tor  the   word 
rnilitia,  nor  for   the  other  amendment.    The  mo- 
moment  the  troops  go  into  the  U.  S.  service  they 
cease  to  be  our  militia. 

The  amendment  was  then  negatived,  and  the 
fourth  section  was  adopted-. 

The  fifth  section  was  then  read  as  follows:— 
^  5.  The  Governor  shall  have  power  to  grant  reprieves 
and  pardons  after  conviction  for  all  offences  except  treasoi 
and  cases  of  impeachment.  He  may  commute  sentence  o 
death  to  imprisonment  in  a  state  prison  for  life.  He  maj 
grant  pardons  upon  such  conditions  and  with  such  restric 
tions  and  limitations  as  he  may  think  proper.  Upon  con 
victions  for  treason,  he  shall  power  to  suspend  the  sen 
tence  until  the  case  shall  be  reported  to  thu  Legislature  a 
its  next  meeting.  He  shall  in  his  annual  message  commu 
nicate  to  the  Legislature  each  such  case  of  reprieve,  com 
mutation  and  pardon  granted  by  him  since  his  next  previ 
ous  annual  message,  stating  the  name  of  the  convict,  the 
crime  of  which  he  was  convicted,  the  sentence  and  its  date 
and  the  date  of  the  commutation,  pardon  or  reprieve. 

Mr.  SHEPARD  moved  to  amend  by  inserting 
the  word  "commutations"  in  the  first  line,  afte 
the  words  "  the  Governor  shall  have  power  t 
grant  reprieves" — and  to  strike  out  the  words  in 
the  3d,  4th,  5th  and  6th  lines  as  follows:— "  He 
may  commute  sentence  of  death  to  imprisonmen 
in  a  state  prison  for  life.  He  may  grant  pardon; 
upon  such  conditions,  and  with  such  restriction 
and  limitations  as  he  may  deem  proper." 

Mr.  RUSSELL  thought  this  wholly  unnecessa 
ry;  it  was  to  be  found  in  the  4th,  5th,  and  6th 
lines. 

Mr.  SHEPARD  said  they  were  to  be  stricken 
out. 

Mr.  HOFFMAN  deemed  the  amendment,  am 
also  the  section,  worthy  of  some  little  considera 
tion.  They  conferred  the  unlimited  power  o 
pardon  upon  the  Governor,  to  the  entire  exclusion 
of  the  action  of  the  Legislature.  He  doubted 
whether  the  Convention  were  prepared  to  go  tha 
length,  to  let  the  Governor  exclusively  mark  ou 
the  term  of  pardons  or  reprieves  as  he  alone  sav 
St.  The  Convention  never  intended  to  gran 


his  power  exclusively  to  the  Governor  without 
etting  the  Legislature  have  power  to  modify  it 
iy  law.  But  if  we  insert  the  words  of  the  pres- 
nt  law  in  the  Constitution,  we  shall  give  him 
hat  power.  He  was  opposed  to  doing  so. 

Mr.  CHATFIELD  thought  this  could  all  be 
rovided  for  by  the  committee  on  the  Legislative 
lepartment. 

Mr.  O'CONOR  suggested  a  modification  of  the 
amendment,  viz:  to  strikeout  the  words — "he 
may  commute  sentence  of  death  to  imprisonment 
n  a  state  prison  for  lite.  He  may  grant  pardons.1* 

Mr.  SHEPARD  accepted  the  modification. 

Mr.  TILDEN  said  the  general  practice  had 
been  for  the  Executive  \o  commute  sentences  and 
grant  pardons  as  he  thought  proper,  thai  power 
>eing  supposed  to  be  derived  from  the  clause, 
giving  him  authority  to  grant  pardons  and  re- 
prieves generally.  Pardons  had  also  been  t  rant- 
ed  to  take  effect  after  the  lapse  of  a  specified  tinve 
rom  one  to  tour  years;  other  Governors  have  com- 
muted four  to  two  years,  and  two  to  one  years 
mprisonment.  This  had  the  effect  of  shortening 
or  commuting  a  sentence,  though  it  was  of  very 
doubtful  signification.  He  desired  that  all  doubts 
should  now  be  settled;  and  he  agreed  with  the 
gentleman  from  Herkimer,  (Mr.  HOFFMAN)  thst 
some  power  should  be  reserved  to  the  legislature 
to  prescribe  rules  by  which  the  Executive  should 
grant  pardons.  In  small  cases  of  offences  this 
might  be  left  to  the  Legislature  to  interfere  with. 
This  might  tend  to  lessen  the  n.wltiplicity  of 
applications  for  Executive  clemency,  and  the 
duty  of  the  Governor  in  that  respect.  He  hoped 
the  amendment  would  prevail.  He  wanted  the 
section  put  in  clear  and  definite  terms. 

Mr.  MORRIS  said  it  was  highly  proper  this 
matter  should  be  understood. 

Mr.  TILDEN  said  it  was  not  settled  in  commit- 
tee whether   the  commutation    in   cases  of  death 
should    extent   to   cases  of  treason.      The   word 
''only,"  that  has  been  inserted,  refers  to  impeach- 
ments and  not  to   treason.     As   the   clause   now 
stands  he  can  commute  for  treason. 
Mr  STETSON  said  he  differed. 
Mr.  TILDEN  said  it  was  so. 
Mr.  STETSON  said  that  there  was  no  punish- 
ment'of  death    lor  impeachment  j  so    the   word 
"  only"  must  apply  in  respect  to  cases   of  trea- 

Mr.  CROOKER  said  this  amendment  went  fur- 
ther  than  some  of  its  advocates  apprehended.  It 
provided  in  substance  what  he  had  proposed  the 
other  day— to  give  the  Governor  power  to  com- 
mute a  sentence  for  death  to  imprisonment  for  a 
term  of  years,  as  well  as  for  life  He  approved 
of  the  amendment,  and  should  vote  for  it. 

Mr.  TILDEN  said  that  the  Governor  had  been 
supposed  to  possess  the  power  of  commuting  for 
a  term  of  years,  as  well  as  to  pardon,  under  the 
present  Constitution. 

Mr.  CROOKER  was  however  not  satisfied 
to  retain  in  the  hands  of  the  Governor  alone  so 
enormous  a  duty  and  so  tremendous  a  power.  He 
understood  the  applications  for  pardon  amounted 
to  600  per  annum,  or  three  per  diem. 

Mr.   TILDEN   said   there   were   often   SOO  or 

'Mr'.  CROOKER  said  that  if  that  was  so,  they 
were  made  upon  petition,  affidavit,  or  state- 


351 


tnent,  and  letteis  liom  all  pails  t  i  the  slate  ;  and 
much  time  would  be  occupied  in  their  considers 
tion,  and  in  the  correspondence  necessarily  at- 
tendant thereon;  this  would  infringe  on  his  othei 
businrs-i.  He  thought  the  Governor  should  be 
greatly  relieved  from  the  burden  ot  that  duty;  01 
that  if  the  power  should  still  be  left  with  him, 
that  he  should  be  controlled,  or  guided  or  aided 
therein  by  some  other  tribunal. 

Mr.  STETSON  asked  how  it  changed  the  sec- 
tion. 

Mr.  CROOKER  would  not  tie  the  Governor  up 
to  the  words  "for  life,"  but  let  him  commute  foi 
"a  term  of  years." 

Mr.  TILDEN:  The  Governor  even  now  does 
do  this.  * 

Mr.  CHATFIELD  knew  that  it  had  been  the 
practice  of  the  Executive  heretofore  to  first  com 
mute  the  sentence  of  death  to  imprisonment  for 
life,  and  afterwards  to  pardon  entirely.  Such  an 
instance  had  occurred  in  Otse«,o  Co.  in  the  case 
of  Darby,  who  killed  his  master.  His  sentence 
was  commuted  to  imprisonment  for  life,  and  at  the 
end  ot  four  years,  he  was  pardoned.  By  the  read- 
ing of  the  section,  he  believed  the  same  privi 
lege  would  be  construed.  The  5th  and  6th  lines 
gives  the  Governor  now  power  to  commote  for 
a  term  of  years.  Now  he  (Mr.  C.)  wished  to 
have  some  limitation  in  terms  upon  this  some, 
what  extraordinary  power  of  pardon,  so  that  the 
Legislatuie  should  at  all  times  have  control  over 
it,  and  prevent  such  a  construction  by  courts  of 
law  as  would  give  the  Governor  full  power  to 
commute  a  pardon.  He  would  change  the  words 
"such  re^i fictions  as  he  may  deem  proper,"  to 
"as  mav  be  prescribed  by  law,"  by  striking  out 
in  the  t»th  line  the  words,  "as  he  may  think  prop- 
er "  It  has  been  said  that  it  requires  a  two-third 
vote  to  pass  an  incorporation  bill,  and  yet  they 
are  passed  by  construction  by  a  bare  majority; 
and  who  knows  how  far  or  where  constitution 
may  go  in  ihis  matter. 

Mr.  KIRKLAND  thought  there  was  no  power 
given  to  the  Governor,  in  the  present  Constitu- 
tion, farther  than  to  commute  a  sentence  of  death 
TO  imprisonment  for  life.  By  the  terms  of  the 
Constitution,  he  could  have  no  further  authority 
to  release  the  convict,  or  to  commute  for  a  term 
of  years 

Mr.  TILDEN:  There  is  such  an  authority 
given  by  the  law,  not  only  to  pardon,  but  aJso  to 
reduce  even  sentences  of  imprisonment  to  shorter 
sentences. 

Mr.  KIRKLAND— That  may  be.  But  the  ques- 
tion then  is,  whether  the  law  is  a  constitutional 
one.  He  believed  that  no  such  power  should  be 
given  to  the  Governor,  and  would  therefore  vote 
against  the  amendment.  It  was  necessary  to  fix 
this.  The  words  "  to  imprisonment  for  life"  does 
this. 

Mr.  TILDEN— The  construction  now  is  to  do 
this,  or  to  commute  for  a  term  of  years. 

Mr.  KIRKLAND— But  it  is  not  in  the  present 
Constitution. 

Mr.  TILDEN— It  is  in  the  law. 

Mr.  KIRKLAND  wanted  it  in  the  constitution. 
He  doubted  if  the  Legislature  had  the  power  to 
pass  a  law  affecting  the  subject  in  question. 

Mr.  TILDEN  hoped  they  would  not  leave  the 
section  in  its  present  confused  state. 


Mr.  VAN  SCHOONHOVEN  wished  to  have  a 
provision  by  which  an  appeal  might  be  made  to 
the  Legislature  for  pardon  or  commutation,  and 
giving  to  the  legislature  at  all  times  control  over 
the  pardoning  power.  The  time  was  fast  ap- 
proaching when  capital  punishment  would  be 
abolished.  Arrangements  should  be  made  to  meet 
this.  There  were  many  individuals  now  in  jail 
who  ought  to  be  released  at  once. 

Mr.  S  IETSON  was  in  favor  of  the  amendment 
of  Mr.  SHEPARD.  It  settled  the  principle  of  the 
section,  which  was  to  give  to  the  Governor  the 
power  to  grant  pardons.  He  was  Rot  prepared  lo 
say  that  the  Legislature  should  control  the  man- 
ner in  which  the  Governor  should  exercise  the 
pardoning  power  As  to  the  Executive  being  al- 
ways at  the  control  of  the  legislature  in  relation 
to  all  pardons  for  all  cases  of  all  grades,  he  did 
not  know.  He  wisheu  to  think  of  this. 

Mr  TAGGART  said  this  provision  takes  away 
all  power  from  the  Legislature. 

Mr.  STETSON  said  that  the  Legislature  have 
no  power  now  in  the  case  of  absolute  pardons  for 
sentence  of  death. 

Mr.  CHATFIELD :  But  the  Legislature  have 
interfered  and  passed  laws  in  relation  to  the  Gov- 
ernor's power  to  pardon. 

Mr.  DANA  wished  the 8th  rule  read. 

It  was  read;  and  relates  to  the  interruption  of  a 
member  whilst  speaking. 

Mr.  TAGGART  thought  if  they  passed  this  sec- 
tion as  it  now  stands  it  would  be  disgraceful  to  the 
Convention.  Thirty  State  Constitutions  have  it 
not.  He  hoped  the  Convention  would  not  tie  up 
the  hands  of  the  Legislature  so  that  they  could 
not  alter  the  provisions  of  this  section,  nor  tie 
them  up  from  hereafter,  in  obedience  to  public 
opinion,  abolishing  entirely  capital  punishment. 
He  was  also  opposed  to  allowing  the  Governor  to 
convert  our  sister  states  into  Botany  Bays  for  the 
banishment  ot  our  criminals.  We  are  not  here 
to  give  the  Governor  unconditional  power,  in  the 
matter  of  pardons,  unrestrained  by  Legislative  ac- 
tion, or  without  any  restraint  by  the  people.  He 
hoped  the  Convention  would  allow  the  Legisla- 
ture to  pass  laws  relating  to  the  punishment  in 
case  ot  conviction  for  murder,  provided  the  Leg- 
islature by  and  by  abolish  capital  punishment. — 
For  he  believed  that  soon  would  be  abolished,  and 
he  would  allow  the  Legislature  full  power  to  pass 
laws  to  meet  all  the  cases  that  might  arise  hereat- 
ter.  They  should  pause  and  reflect  before  adopt- 
ing either  the  section  or  the  amendment  without 
that  of  the  gentleman  from  Otsego,  (Mr.  CHAT- 
FIELD). 

Mr.  HOFFMAN  expressed  himself  in  iavor  of 
Mr.  CHATFIELD'S  amendment.  He  could  see 
no  danger  in  permitting  the  Legislature  to  be  as- 
sociated with  the  Governor,  so  far  as  to  prescrib- 
ing the  manner  in  which  the  pardoning  power 
should  be  exercised.  Such  had  been  the  effect 
under  the  Constitution  The  Governor  was  a 
part  of  the  legislative  power.  He  was  not  one  of 
those  who  believed  that  the  exigencies  of  society 
required  the  abolition  of  capital  punishment — he. 
was  not  here  to  argue  that  question  now — but  he 
desired  to  give  the  idea  a  fair  opportunity  to  be 
heard  and  to  be  examined.  But  what  heretofore 
had  been  the  main  difficulty  in  attempting  to  abo- 
lish capital  punishment  ?  It  had  been  the  power 


352 


of  pardon  and  commutation — the  power  to  take 
the  criminal  from  the  jail,  and  to  throw  him 
again  upon  society  to  the  endingerment  of  its 
peace.  The  fear  of  this  had  prevailed  upon  the 
minds  of  men,  who  were  otherw  se  disposed  to 
come  to  that  generous  and  humane  conclusion. — 
And  so  long  as  this  power  was  left  unrestricted 
in  the  Executive,  so  long  had  the  proposition  to 
abolish  capital  punishment  no  chance  of  success. 
But  if  the  principle  was  adopted  that  the  commu- 
tation should  extend  only  to  imprisonment  for  life, 
then  the  argument  would  have  fair  play.  For  if 
the  murderer,  guilty  of  blood,  was  to  be  returned 
back  upon  society,  men  must,  men  would,  take 
arms  to  defend  themselves.  He  would  not  ex- 
tend the  same  rule  to  pardons  as  to  commutation. 
Pardon  was  on  the  ground  of  innocence  or  strong 
doubts  of  guilt.  With  these  remarks,  Mr.  H. 
said  that  he  should  vote  for  the  amendment  to  re- 
tain in  the  Legislature  a  power  of  control  over 
the  limits  and  conditions  under  which  pardons 
*>hall  be  granted,  and  because  he  desired  that  the 
advocates  of  the  abolition  of  capital  punishment 
should  have  some  chance  to  carry  out  their  idea. 
Mr.  SIMMONS  was  in  favor  of  the  amendment 
of  Mr.  SHEPARD,  but  opposed  to  that  of  Mr. 
CHATFIELD.  He  would  not  give  to  the  Legisla- 
ture control  over  the  exercise  of  the  Executive 
power,  and  thus,  in  the  language  of  Mr.  JEFFER- 
SON, convert  the  Executive  office  into  a  mere 
directory.  He  would  leave  the  power  of  pardon 
without  the  restriction  of  imprisonment  for  life. 
Mr.  S.  urged  that  the  adoption  of  this  amendment 
would  be  in  effect  to  provide  on  one  page  of  our 
laws  how  crime  should  be  punished,  and  on  the 
other,  how  the  criminal  might  escape  from  the 
punishment.  The  dividing  of  the  pardoning 
power  would  also  divide  and  destroy  the  respon- 
sibility. He  would  allow  the  legislature  to  have 
no  control  over  this  power  except  in  great  cases 
like  treason.  He  would  leave  it  unfettered  in  the 
hands  of  the  Executive. 

Mr.  MORRIS  then  went  on  to  explain  the  sec- 
tion as  he  understood  it.  He  would  not  adopt  an 
amendment  like  this — the  effect  of  which  was  to 
convert  the  Executive  office  into  a  court  of  rehear- 
sing, where  the  decisions  of  the  judges  shall  be 
set  aside,  except  in  cases  where  the  innocence  of 
convict  shall  be  proved.  He  would  allow  the 
Governor  the  power  of  placing  a  condition  upon 
his  pardon  to  send  out  of  the  State  those  crimin- 
als who  had  been  disgorged  upon  us  from  some 
other  state  or  foreign  country  to  depredate  upon 
us.  Gentlemen  from  New- York  were  aware  that 
in  that  city  there  was  a  class  of  pickpockets,  who 
came  from  London,  and  who  were  among  the 
most  genteel  citizens.  It  was  not  to  be  used  to 
send  our  criminals  to  other  countries,  but  for  the 
purpose  of  sending  back  criminals  that  had  been 
disgorged  upon  us.  It  was  a  well  known  fact 
that  criminals  from  other  countries  were  sent 
here.  In  the  case  of  the  German  who  murdered 
a  whole  family  on  Long  Island,  the  murderer  was 
found  to  be  a  convict  from  another  country  who 
had  committed  the  same  crime  at  home.  In  in- 
stances like  these,  the  Governor  should  have  pow- 
er to  send  such  persons  back  from  where  they 
came — and  to  send  out  of  the  State  those  who  had 
been  sent  or  had  come  here  to  depredate  upon  our 
citizens.  The  condition  of  restoring  freedom, 


without  the  privilege  of  being  a  witness  wa* 
also  very  proper  in  many  cases;  for  there- 
were  persons  who  had  been  proved  so  en- 
tirely destitute  of  veracity  that  they  ought 
not  to  be  trusted  in  giving  evidence  against 
ihe  liberty  or  property  of  other  persons. — 
He  would  leave  the  section  giving  the  power  to 
commute  sentence  of  death  to  imprisonment 
for  life,  and  gave  his  reasons  for  retaining  it.  He 
regretted  that  the  word  only  had  been  inserted  to 
restrict  in  the  case  of  treason.  The  argument 
used  in  favor  of  the  amendment,  that  the  Govern- 
or might  be  guilty  of  the  treason,  was  an  anoma- 
ly. After  the  Governor  had  been  tried  and  con- 
victed for  treason,  it  would  be  strange  if  he  could 
still  be  Governor  of  the  State  and  have  power  to 
commute  his  sentence  to  imprisonment  of  life. 

Mr.  STETSON  :  I  said  the  emissaries  of  the 
overnor.  The  gentleman's  wit  has  obscured  a 
good  argument  on  the  other  side. 

Mr.  MORRIS  :  Yes.  Then  we  will  take  the 
case  of  the  emissaries  of  the  Senate,  who  might 
•>e  found  guilty  of  treason.  If  that  branch  of  the 
Legislature  should  happen  to  be  very  much  im- 
bued with  partizan  feeling,  the  unfortunate  indi- 
vidual, who  might  have  been  guilty  only  of  an 
act  of  patriotism — and  this  question  of  treason 
was  very  much  like  one  as  to  orthodoxy  and 
heterodoxy — it  depended  very  much  as  to  whose 
"  doxy"  it  was— would  have  no  chance  for  his 
life,  by  the  dissent,  from  motives  of  political  hos- 
tility, of  one  branch  of  the  Legislature. 

Mr.  CHATFIELJ3  here  called  the  gentleman 
to  order  for  wandering  from  the  question. 

Mr.  MORRIS  believed  the  gentleman  was  cor- 
rect, and  felt  obliged  to  him,  for  he  had  already 
spoken  longer  than  he  had  intended;  and  if  the 
same  kindness  was  extended  to  all  alike,  he 
would  not  have  had  the  speech  from  his  learned 
friend,  (Mr.  BURR)  about  the  consumption  of 
time.  He  then  alluded  again  to  Mr.  SHEPARD'S 
amendment,  and  said  it  was  not  a  mere  question 
of  verbiage.  He  should  vote  against  it,  and  would 
hereafter  offer  an  amendment  in  accordance  with 
his  views. 

Mr.  RHOADES  said  that  it  was  the  opinion  of 
many  that  the  pardoning  power  in  the  Governor* 
was  a  dangerous  one  and  should  be  restricted. — 
If  this  were  so,  then  the  power  of  commutation 
was  equally  dangerous.  If  these  amenaments 
should  be  voted  down,  he  should  offer  one  asso- 
ciating the  Chief  Justice  and  Attorney  General 
with  the  Governor  in  passing  upon  the  question 
of  the  commutation  of  a  sentence  of  death,  to 
imprisonment  for  life.  He  would  also  have  it  in 
the  power  of  the  legislature  to  prescribe  the 
form  of  application  for  pardon — for  he  believed 
that  it  would  very  much  diminish  the  number,  if 
it  was  known  that  publicity  would  be  given  to 
them,  and  to  the  names  of  those  signing  the  ap- 
plication. He  should  vote  for  Mr.  CHATFIELD'S 
amendment,  and  if  that  failed,  he  should  offer 
one  to  carry  out  the  views  he  had  indicated. 

Mr.  CHATFIELD  said  the  amendment  did  not 
propose  to  give  the  legislature  entire  control  in 
this  matter.  The  Constitution  vests  the  pardon- 
ing power  in  the  Governor,  with  such  restrictions^ 
limitations,  and  conditions  as  shall  be  prescribed 
by  iaw_and  the  legislature  was  to  pass  laws  for 
the  purpose  of  carrying  that  provision  into  effect. 


353 


When  this  Constitution  was  adopted,  it  would  be 
the  duty  of  the  next  legislature  under  it  to  pass 
general  laws  to  that  effect.  If  this  was  not  done, 
Juries  would  be  found  to  be  exercising  the  same 
power. 

Mr.  SIMMONS  renewed  his  opposition  to  the 
amendment. 

The  question  being  taken,  the  amendment  was 
rejected,  ayes  30,  nays  57. 

Mr.  TAGGART  moved  to  amend  by  adding  af- 
ter the  word  proper : 

"  But  the  legislature  may  by  law  limit,  regulate  or  pro- 
hibit  the  exercise  by  the  Governor  of  the  power  to  grant 
pardons  after  convictions  for  murder,  or  to  grant  condi- 
tional  pardons  " 

SEVERAL  ;  Why  this  is  the  same  thing  we 
have  just  voted  down. 

Mr.  TAGGART  said  this  related  to  two  par- 
ticular cases — the  other  was  general. 

The  amendment  was  rejected. 

The  question  was  then  taken  on  Mr.  SHEPARD'S 
amendment,  and  it  was  adopted. 

Mr.  RHOADES  then  offered  the  amendment 
indicated  by  him,  as  follows  :  To  insert  after  the 
word"  proper": 

"  But  commutation  of  thesentence  of  death  to  imprison 
ment  in  the  state  prison,  shall  be  made  bj  the  Governor, 
by  and  with  the  advice  and  consent  of  the  Chief  Justice 
of  the  Supreme  Court  and  the  Attornej  General  of  this 
state;  ard  in  such  cases  the  power  of  pardon  shall  not  be 
exercised  by  the  Governor  except  with  the  advice  and 
consent  ot  the  Chief  Justice  and  Attorney  General." 

Mr.  SIMMONS  :     That  will  never  do. 

Mr.  TALLMADGE  said  it  was  better  to  vote 
a  comp-'tent  man  into  the  office  of  governor,  as 
that  would  cover  the  whole  case. 

Tb  ;  amendment  was  rejected. 

Mr.  CLYDE  moved  to  ameud  so  that  (he  wofd 
'*  only"  should  follow  "  treason." 

Mr.  TILDEN  :  it  ia  not  necessary  to  insert  it  ai 
all. 

The  amendment  was  voted  down. 

Mr.  TALLMADGE  then  moved  to  strike  out 
the  word  •«  only." 

This  prevailed     ayes  47.  nays  21. 

Mr.  STOW  moved  to  insert  after  the  word  pro- 
per— 

"  But  the  Legislature  may  by  law  require  that  notice 
ahall  be  given  to  the  district  attorney  of  the  county  where 
the  trial  was  had,  or  to  the  judge  before  whom  the  cause 
was  tried,  or  to  both  said  district  attorney  and  ju«:ge,  before 
a  pardon  shall  be  granted;  and  the  Legislature  may  re 
quire  the  Governor  to  communicate  to  them  the  reasons  for 
which  a  pardon  was  granted." 

Mr.  PATTERSON  did  not  think  that  anything 
could  be  gained  by  that.  The  Governor's  reasons 
were  his  own. 

Mr.  STOW  desired  to  have  the  Governor's  rea- 
sons before  the  people.  If  that  functionary  was 
compelled  to  furnish  them  he  would  be  more 
careful  in  the  exercise  of  his  duties. 

Mr.  HOFFMAN  said,  if  the  amendment  of  th 
gentleman  trom  Otsego  had  prevailed,  then  there 
would  have  been  force  and  propriety  in  th 
amendment.  But  as  the  Convention  had  settled 
that  the  terms,  limitations  and  conditions  on 
which  the  pardoning  power  should  be  exercised 
should  rest  exclusively  with  the  Executive,  wh) 
should  the  legislature  call  on  him  for  infonnatior 
in  the  matter  He  was  to  make  the  rules,  regula 
tions,  &c. — that  was  to  be  given  him — and  after  he 
had  done  that,  what  use  would  it  be  to  call  on  him 


or  information.  It  would  be  entirely  useless.  And 
vhen  the  information  was  received,  the  legisla- 
ure  could  take  no  step  to  correct  the  error.  They 
ould  no  nothing  in  the  matter. 

Mr.  NICOLL  urged  the  adoption  of  the  amend- 
ment as  tending  to  make  the  governor  responsible 
o  the  bar  of  public  opinion  for  the  exercise  of  the 
>ower. 

Mr.  PATTERSON  moved  to  strike  out  the 
ast  part  of  the  amendment. 

Mr.  STOW  replied  in  support  of  his  amend- 
ment. 

Mr.  VAN  SCHOONHOVEN  briefly  opposed  it. 

No  mischief  could  be  prevented  by  it  as  it  could 

only  take  effect  after  the  mischief,  if  any  was  done. 

Mr.    STEPHENS   urged    the    adoption   ot    the 

amendment.     The  Governor  was   now   obliged  to 

;ive  his  reasons  to  the   public  for  the  exercise  of 

he  velo  power.     And  the   effect  was  to   restrain 

.he  Executive  from  any  arbitrary  exercise  of  hi8 

veto  power.    So  this  provision,  whilst  it  made  the 

governor   responsible  at   the  bar   of  public  opin- 

on,  would  also  induce  on  his  part,  extreme  cau- 

ion  in  the  exercise  of  this  power  uf  pardon. 

Mr.  SIMMONS  opposed  the  amendment  as  un- 


The  question  being  taken,  Mr.  STOW'S  amend- 
ment was  voted  down — ayes  29,  noes  71,  as  fol- 
lows : — 

AYES— Messrs.  H.  Backus.  Bouck,  Brayton.  Bull,  Can- 
dee,  Conely,  Flanders,  Gardner,  Harris,  Jordan,  Kemble, 
Miller,  Murphy,  Nicoll,  Parish,  Towers,  Rhoadss,  Salisbu- 
ry, Shaver,  Sheldon,  Stephens,  Stow,  Strong,  Taggart, 
Tallmadge,  WTard,  Waterbuiy,  Worden,  A.  Wright, 
Young— 29. 

NOES— Messrs.  Angel,  Archer,  Ayrault,  F.  F.  Backus, 
Bascom,  Bowdish,  Brown,  Brundage,  Burr,  Cambieleng, 

D,  D.  Campbell.  Chatneld,  Clark,  Clyde,  Cook,  Cornell, 
Crocker,  Duddeback,  Dana,  Danforth,   Dorlon,    Dubois, 
Gebhard,  Graham,  Greene,  Harrison,  Hart,  Hawley,  Hoff- 
man, Hotchkiss.A.  Humington,  Hutchinson,  Hyde,  Jones, 
Kernan,  Kingsley,  Mann,  McNitt,  Maxwell,  Morris,  Nel- 
lis,  Nicholas,  O'Conor,   Patterson,  the  President,  Biker, 
Russell,  St.  John,  Sears,  Shaw,  Shepard.  Simmons,  Smith, 

E.  Spencer,  Stetson,  Swackhamer,  TaflV  J.  J.  Taylor,  W. 
Taylor,  Tilden,  Tuthill,  Vache,  Van  Schoonhoven,  War- 
ren, White,  WUlard,  Wood,   W.  B.   Wright,    Yawger, 
Youngs— 71. 

Mr.  HART  moved  a  reconsideration  of  the  vote 
just  taken. 

Mr.  CHATFIELD  thought  the  question  on  the 
motion  had  better  not  be  taken  to-day. 

It  was  laid  over,  under  the  rule. 

Mr.  HAWLEY  moved  to  add  after  the  word 
proper  : 

"  But  no  pardon,  reprieve  or  commutation  shall  be  gran- 
ted, unless  notice  of  the  intended  application  for  such  par- 
don, reprieve,  or  commutation  shall  have  been  published 
in  the  state  paper,  and  in  one  or  more  of  the  newspapers 
published  in  the  county  in  which  the  offence  shall  have 
been  committed,  at  least  six  weeks  successively,  prior  t» 
such  application." 

Mr.  H.  wished  the  community  to  know  some- 
thing of  what  was  going  on.  He  knew  of  at  least 
one  instance,  where,  although  the  people  living 
where  the  crime  was  committed  were  watching 
the  case  with  an  eagle  eye,  yet  before  they  knew 
of  it,  the  pardon  was  granted.  This  was  what  he 
desired  to  guard  against. 

Mr.  TAGGART  biitfly  opposed  this  amend- 
ment, as  a  better  one  had  just  been  voted  down. 

The  amendment  was  rejected. 

Mr.  DANA  moved  to  strike  out  all  down  to 
and  including  the  word  proper,  and.  inseu; 


354 


"  The  Governor  shall  have  power  according  to  the  pro- 
visions ot  law  to  erant  reprieves  and  pardons  after  convic- 
tion, for  all  offences  except  those  punishable  with  death, 
and  cases  of  impeachment.  He  may  commute  sentence  of 
death  to  imprisonment  for  life." 

This  was  voted  down. 

Mr.  VACHE  moved  to  change  the  phraseology 
of  the  section — first  by  striking  out  "  for  all  of- 
fences except  treason  and  cases  of  impeachment," 
and  inserting — "  except  in  cases  of  treason  or  of 
impeachment." 

The  question  being  taken,  Mr.  Vs.  amendment 
was  voted  down. 

Mr.  A.  W.  YOUNG  moved  to  amend  Mr. 
VACHE'S  amendment  by  substituting  "  and"  for 
"  or."  Lost. 

Mr.  JORDAN  suggested  that  it  would  be  bet- 
ter still  to  say — "  all  offences  except  treason  and 
•uch  as  are  the  subjects  of  impeachment." 

Mr.  VACHE  moved  to  strike  out  "  or,"  where 
it  occurs  in  the  clause  "  shall  either  pardon,  or 
commute  the  sentence,  or  direct,  &c. 

This  was  adopted. 

Mr.  VACHE  then  moved  to  strike  out  all  after 
the  words  "  pardon  granted"  in  the  twelfth  line. 
This  was  voted  down. 

Mr.  CROOKER  moved  to  strike  out  all  down 
to  and  including  the  word  proper  and  insert : 

"  The  Governor  shall  have  power  to  grant  reprieves, 
commutations  and  pardons,  after  conviction,  for  all  offen- 
ces punishable  with  death,  except  treason  " 

Tho  amendment  was  lost,  ayes  10  noes  84. 
The  Convention  then  adjourned  to  9  o'clock  on 
Monday  morning. 


MONDAY,  (40th  day,)  July  20. 
Prayer  by  Dr.  KENNEDY. 

Mr.  BOUCK  presented  a  petition  in  relation  to 
the  enlargement  of  the  Erie  canal,  its  comple- 
tion, its  resources,  &c.  Referred. 

The  PRESIDENT  presented  a  communication 
from  Mr.  Armes,  asking  the  use  of  the  Assembly 
Chamber  this  evening  to  deliver  a  lecture  on 
Phreno  Mnemotechny. 

Mr.  MANN  moved  to  grant  the  application. 

Mr.  CROOKER  moved  to  h.y  it  on  the  table. 

Two  votes  vveie  taken  on  this  motron,  but  no 
quorum  voted  either  lima. 

The  ayes  and  noes  were  called  for,  but  not  or 
dered.  The  House  was  called  and  81  members 
answered. 

Mr.  JONES  said  the  Convention  had  no  power 
to  graht  the  use  of  this  Hall.  They  were  here  as 
it  were  on  suffrance. 

Mr.  STETSON  moved  to  lay  aside  all  inter- 
vening business. 

Mr.  SWACKHAMER  wanted  to  offer  a  reso- 
lution. 

Mr.  STETSON  said  it  was  not  in  order. 

Mr.  BASCOM  hoped  that  if  Monday  was  to  be 
set  apart  for  the  presentation  of  resolutions,  tha 
members  would  not  be  choked  off. 

Mr.  STETSON  moved  to  lay  aside  every  thing 
except  reports. 

Ayes  46.     No  nays  voted. 

The  PRESIDENT:     No  quorum  yet. 

Question  was  put  again.  • 

Ayes  56  ;  noes  13—69. 

Mr.  CROOKER  withdrew  his  motion,  remark 
ing  that  if  the  Convention  saw  fit  to  give  its  sane 


ion  to  every  travelling  lecturer,  he  would  not  ob- 

ct,  but  would  wash  his  hands  of  it. 

The  motion  to  grant  the  application  was  op» 
josed  by  Messrs.  JONES  and  STETSON,  and  lost. 

Mr.  McNEIL  had  leave  of  absence  for  1  week; 
Vir.  BRAYTON  for  the  same. 

Mr.  STETSON  again  moved  to  lay  intervening 
rders  on  the  tuble  and  proceed  to  the  considera- 
ion  ot  the  report  on  the  Executive  Depaitment. 
Agreed  to. 

The  Convention  then  took  up  the  report  on 
HE  POWERS  AND  DUTIES  OF  THE  EXECUTIVE 
DEPARTMENT. 

The  first  question  was  upon  the  reconsideration 
>fthe  vote  rejecting  the  amendment  of  Mr.  CHAT- 
FIELD,  to  strike  out  the  words,  "  as  he  may  think 
roper,"  and  insert  "as  may  be  provided  by  law," 
n  the  6th  section. 

Mr.  CHATF1ELD  then  called  up  the  question 
m  this,  and  demanded  the  ayes  and  nays,  and  they 
vere  ordered,  and  resulted  yeas  42,  nays  40,  as 
ollows: 

AYES— Messrs  Angel,  Archer,  Bascorn,  Chamberlain, 
Chatfield,  Conely,  Cornell,  Crooker,  Cuddeback,  Dana, 
Danforth,  Flanders,  Gebhard,  Hart,  Hawley,  Hotchkiss, 
lutchinson,  Jones,  Maxwell,  Nellis,  Nicoll,  Patterson,  Pre- 
ident,  Richmond,  St.  John,  Salisbury,  Shaver,  W.  H. 
Spencer,  Stephens,  Strong,  Swackhamer,  Tait,  Taggart, 
Tallmadge,  W.  Taylor,  Townsend,  Waterbury,  Willard, 
Witbeck,  W.  B.  Wright,  Yawger,  J.  Youngs-42. 

NAYS— Messrs.  Ayrault,  H.  Backus,  Bouck,  Bray  ton, 
3rundage,  Bull,  Burr,  Cambreleng,  R.  Campbell,  jr.,  Can- 
dee,  Clark,  Greene,  A.  Huntington,  Hyde,  Kernan,  Kings- 
ey,  Kirkland,  Mann,  McNitt,  Miller,  Morris,  Murphy, 
Nicholas,  O'Conor,  Parish,  Penniman,  Riker,  Russell, 
Sears,  Shaw,  Sheldon, Shepard,  Simmons,  Smith,  Stetson, 
Stow,  J.  J.  Taylor,  Tuthill,  Wood,  A.  W.  Young— 40, 

So  the  Convention  reconsidered  the  subject. 

Mr.  HOFFMAN  thought  the  Convention  had 
reserved  to  the  Legislature  the  regulation  of  this 
pardoning  power,  though  he  was  opposed  to  tak- 
ing the  power  from  the  Executive.  He  was  sa- 
tisfied that  on  Saturday  the  difference  between 
members  was  more  as  to  a  matter  of  form,  than 
of  substance.  He  supposed  no  one  wished  to  give 
to  the  Legislature  the  pardoning  power.  It  should 
be  left  with  the  Executive,  and  with  him  alone. 
The  courts  had  the  adjudication  of  all  cases ;  the 
Executive  after  sentence  had  the  power  to  par- 
don. But  as  the  Legislature  prescribes  the  mocte 
in  which  the  courts  shall  act,  and  the  rule  of  law 
for  their  guidance,  so  he  considered  the  Legisla- 
ture should  by  law  regulate  the  exercise  of  this 
pardoning  power ;  the  times  and  modes  and  man- 
ner of  exercising  this  pardoning  power.  The  le- 
gislature by  its  construction  is  entirely  unfit  for 
the  exercise  of  this  power ;  he  would  no  more 
give  it  to  them,  than  to  allow  them  to  overturn 
the  judgments  of  Courts.  Under  the  present  con- 
stitution, the  Legislature  have  exercised  the  pow- 
er of  regulating  the  manner,  &c.,  in  which  the 
pardoning  power  shall  be  exercised  by  the  Exe- 
cutive ;  and  it  is  very  proper  that  they  should 
have  this  power,  to  regulate  the  sort  of  evidence, 
&c.,  under  which  this  clemency  is  to  be  exer- 
cised. He  instanced  the  forgeries,  in  the  case  of 
,  who  was  pardoned,  and  upon  his  re- 


turn to  the  place  of  conviction,  application  was 
made  to  the  Governor  for  the  reasons  of  his  ac- 
tion. He  returned  in  answer,  a  certificate  and 
opinion  of  the  judge,  of  the  jury,  a  statement  of 
the  district  attorney  who  had  acted  in  his  case, 
and  a  petition  signed  by  a  large  number  of  as  re- 


355 


spectable  people  as  could  be  found  on  both  side 
of  the  Mohawk.  And  yet  every  word  of  all  the; 
papers  was  an  entire  forgery.  He  would  allo 
the  Legislature  to  declare  such  an  act  a  crim 
and  punishable  accordingly. 

Mr.  RUSSELL  enquired  if  the  Legislator 
could  not  now  pass  a  law  declaring  the  fabrica 
tion  of  such  persons  to  be  forgery  ? 

Mr.  HOFFMAN— Yes;  under  the  Constitutio 
of  1824,  the  legislature  did  pass  a  law  regulatin, 
this  matter.     But  unless  this  amendment  prevail 
the  legislature  cannot  control  the   Executive  i 
this.     "  He  may  grant  pardons,  &c.,  a*  he  ma 
think  proper."     One  way  to  get  out  of  this  diffi 
culty  is  to  adopt  Mr.  CHATFIELD'S  amendment 
the  other  is  to  strike  out  the  words  of  the  act  c 
the  legislature  giving  the  Governor  this  exclusiv 
power,  and  bring  it  back  to  what  it  is  in  the  con 
stitution  o'  1S21.     The  Executive  was  as  desirou 
that  this  should  be  the  case,  as  he  (Mr.  H.)  was 
Mr.  SIMMONS  said  his  object  was  similar  t( 
Mr.  HOFFMAN'S  ;  he  did  not  wish,  by  a  mistaken 
phraseology,  tc  convey  back  to  the   Legislatur 
what  had  properly  been  taken  from  them.     The 
exercise  of  this  power  was  the  vetoing  of  the  act 
of  the  Supreme  Court  and  the  Court  of  Errors. — 
He  wished  to  preserve  to  the  legislature  thepow 
er  to  regulate  the  exercise  of  the  pardoning  pow 
er  without  impairing  its  substance.     They  have 
the  right  te  perform  by  a  general  law  what   th 
gentleman  from  Otsego  (Mr.  CHATFIEI.D)  and  the 
gentleman  from  Herkimer,  (Mr.  HOFFMAN,)  de 
sire.     They   have  the  power  to  require  Circui 
Judges  and  petitioners  to  send  in  their  documents 
to  the  Governor  within  a  certain  time. 

Mr.  HOFFMAN  would  ask  the  gentleman 
from  Essex,  (Mr.  SIMMONS,)  if  the  Constitution 
was  to  make  a  cettain  rule,  and  the  Legislature 
was  to  make  another  rule,  which  rule  would  the 
Governor  obey  ? 

Mr.  SIMMONS.  The  governor  ought  to  mind 
his  own  rule.  The  pardoning  power  then  would 
be  in  the  party  who  prescribes  the  rule.  They 
who  prescribe  rules  exercise  the  power,  and 
bring  them  round  to  be  acted  on.  By  submitting 
to  the  terms  of  the  law  prescribed  by  the  legisla^ 

ture,  a  man  should  be  pardoned,  and  not   else. 

Give  them  power  of  prescribing  as  to  the  notices 
to  be  furnished,  and  to  the  time,  and  form,  and 
manner  in  which  it  should  be  done.  But  the 
power  to  pardon,  to  control  the  action  of  courts  on 
this  point,  he  would  rest  exclusively  in  the  Gov- 
ernor. He  desired  the  Governer  to  have  the  pow- 
er in  such  a  manner  that  it  could  not  be  taken 
away  from  him,  nor  modified,  except  as  to  the 
manner  and  form  of  its  exercise.  Now  what  was 
the  pardoning  power  ?  It  was  the  power  to  dis- 
pense with  the  laws.  It  was  a  high  power.  It 

was  the  same  as  the  veto  power  in   legislation 

for  by  this  provision  they  armed  the  Executive 
with  the  power  to  negative  the  action  of  the  ju- 
diciary. It  must  therefore,  in  its  very  nature,  be 
exclusive  and  absolute.  How  then  could  the 
legislature  regulate  it  by  law?  If  the  legisla- 
ture might  prescribe  the  conditions,  limitations 
and  restrictions  by  which  he  should  exorcise  it, 
there  would  be  a  superior  power  over  the  Gover- 
nor. At  the  same  time  he  was  willing  to  reserve 
to  the  legislature  the  regulation  of  the  manner  of 
exercising  it,  if  that  could  be  done  without  inju- 


ry to  the  substance.  How  then  could  that  be 
done  ?  The  legislature  might  provide  by  a 
general  law  that  every  person  applying  for 
a  pardon  shall  give  such  and  such  a  notice 
and  apply  in  such  and  such  a  manner ;  they 
might  prescribe  the  manner  in  which  the  neces- 
sary information  shall  be  provided.  They  had 
certainly  the  power  to  require  circuit  judges,  who 
tried  the  criminal,  to  make  a  report  of  al-1  the  evi- 
dence to  the  Governor,  and  the  petitioners  to  show 
the  reasons  why  the  pardon  should  be  granted 
within  a  certain  time,  and  after  due  notice  had 
been  given.  He  would  not  object  to  the  exercise 
of  this  power  by  the  legislature,  but  he  would 
not  consent  that  the  pardoning  power  itself  should 
be  infringed  or  taken  away  by  the  legislature 
from  the  Governor.  But  if  this  amendment  pre- 
vailed, the  legislature  could  veto  the  Governor's 
pardon  ;  and  then  the  Executive  would  be  situa- 
ted somewhat  like  the  witness  before  a  Dutch  jus- 
tice, who  had  a  right  "  to  dink  provided  he  dink 
wid  de  court !"  The  Governor  could  think,  but 
he  must  think  with  the  Legislature.  He  believed 
the  Legislature  had  power  sufficient  already.  He 
was  opposed  to  the  amendment. 

Mr.  STETSON  was  opposed  to  the  amendment. 
There  was  no  difference  between  an  absolute  pow. 
er  and  a  commutation.  There  never  has  been  a 
general  interference  by  the  legislature  with  the 
pardoning  power  possessed  by  the  Governor.  It 
was  only  done  to  enable  the  Governor  to  carry  out 
a  case  of  a  conditional  pardon.  If  he  could  grant 
a  conditional  pardon,  how  could  he  order  the  jails 
of  the  country  to  be  open  without  the  interference 
of  the  Legislaiure  ?  The  amendment  is  substan- 
tially a  transfer  of  the  pardoning  power  10  the 
Legislature. 

Mr.  NICHOLAS  thought  that  this  question  was 
definitely  settled.     And  he  hoped  the  Convention 
would  pause  btfore  they  adopted  this  amendment. 
He  wished  the    power  to  rest   exclusively  in  the 
~nvernor    as    a   check  to    the  present   oppressive 
rriminal  code.     Tne  salmary  effect  of  all  laws  has 
depended  more  on  the   certainty  of   their   execu- 
ion  than    on   the  seventy  of  the  punishment. — 
This  power  to  pardon — this  exercise  of  mercy  had 
better  rest  exclusively  with  the  Governor.    "And 
f  we   give  the.  Legislature  power  to  direct  hoto 
his  pardoning  powershall  be  exercised, you  great- 
y  increase  the  uncertainly  of  the  punishment  — 
Arid  all  the  evil  disposed   men  of  I  he  country  im- 
nediarely  turn  their  attention  to  this  uncertainty 
md    regulate    their   conduct   accordingly.       And 
herefore,  you  cannot  safely  thus  hold  up  before 
''irrupt  men  a  graduated  scale  of  minimum  pun- 
shments.     And  this  scheme  of  virtually  leaving 
11  this  power  to  the    regulation  of  the  Legisla- 
ure  must  fall  to  the  ground.     He  could  not   be- 
eve  any  part  of  this  power  had  ever  been  invested 
n  or  entrusted  to  the  exercise  of  the  Legislature, 
his  power. however,  cannot  be  dispensed  with  or 
aken  away  from  the  governor.     The  various  mo- 
ives  which  induce  the  commission  of  crime,  the 
ncertain  nature  and  character  of  testimony,  and 
ometimes  a  development  of  facts,  subsequent  to 
le  trial,  will  render  a  change  of  sentence  right 
nd  proper.     For  these  and   other  causes,  justice 
nd  humanity  require  that   the  pardoning  power 
lall   continue  to  be   lodged   somewhere.     It  ie 
enerally  conceded  by  most  of  the  members  that 


this  power  is  well  reposed  in  the  governor,  but 
from  an  apprehension  of  its  abuse,  it  is  now  pro- 
posed that  the  legislature  shall  control  the  gover- 
nor in  the  exercise  of  the  power  ;  that  he  shall 
act  only  under  rules  prescribed  by  the  legislature. 
Such  a  control  must  still  further  impair  the  cer- 
tainty of  punishment,  and  in  his  (Mr.  N.'s)  opin- 
ion, renders  the  criminal  laws  almost  a  nullity. 
The  criminal  code  which  should  be  a  terror  to 
evil  doers,  in  prescribing  punishments  for  differ- 
ent crimes,  usually  fixes  both  a  maximum  and  a 
minimum  limit ;  that  is,  a  man  who  commits  a 
certain  crime  shall  be  imprisoned  for  a  term  not 
greater  than,  say  for  illustration,  eight  years,  and 
not  less  than  five  years.  Now  men  in  plotting 
crime,  generally  take  in  account  the  penalty ; 
they  estimate  their  chances  of  escape,  or  a  miti- 
gation of  their  sentence  ;  and  rely  upon  it  they  al- 
ways keep  out  of  view  the  longest,  and  base  their 
hopes  upon  the  shortest  term  of  imprisonment. 
Should  the  legislature  prescribe  by  statute,  terms 
and  conditions  upon  which  the  governor  shall  ex- 
ercise this  power,  they  will  lessen  the  restrain- 
ing influence  of  the  criminal  laws  by  introducing 
a  new  and  reduced  scale  of  minimum  punish- 
ments, which  of  course  will  impair  the  certainty 
of  punishment  and  necessarily  lessen  the  restraints 
upon  malefactors.  These  changes  in,  and  abate- 
ments of  punishment,  as  made  under  this  pardon- 
ing power,  will,  after  all  the  changes  proposed, 
have  to  be  left  to  the  discretion  of  the  executive  ; 
for  should  the  interference  of  the  legislature  be 
allowed  by  the  Constitution,  felons  would  under- 
stand as  the  lawyers,  your  statutes  reducing  the 
minimum  scale  of  punishments,  and  would  at 
once  become  more  adroit  and  reckless  in  the 
commission  of  crime. 

Mr.  CHATFIELD  said  that  having  offered  this 
amendment,  he  could  not  consent  to  have  a  vote 
taken  upon  it  without  endeavoring  to  explain  his 
own  views  in  reference  to  it  and  if  possible  to 
show  to  the  Convention  that  the  views  and  ob- 
jections of  gentlemen  who  were  opposed  to  it  were 
fallacious.  If  these  views  were  the  settled  sense 
of  this  body  then  he  apprehended  it  had  met  here 
to  very  little  purpose.  One  object  he  supposed 
of  calling  this  Convention  was  to  limit  the  exe- 
cutive patronage,  about  which  so  much  complaint 
had  existed.  Another  was  to  limit  the  abuse  of 
delegated  power,  whether  vested  in  the  Execu- 
tive or  the  legislature.  Mr.  C.  alluded  to  the  fact 
of  the  executive  power  having  been  strengthened 
rather  than  weakened,  as  was  instanced  in  the 
amendment  adopted  in  relation  to  the  veto  pow- 
er. And  it  was  now  sought  to  put  the  whole  par- 
doning power  unlimited  and  uncontrolled  in  the 
hands  of  the  executive.  Mr.C's.  predilections  were 
the  other  way  ;  he  never  was  a  strong  advocate  of 
the  one  man  power,  and  in  relation  to  the  veto 
he  was  for  giving  a  majority  of  all  elected,  the 
power  to  pass  a  bill.  Mr.  C.  said  that  the  gen- 
tleman from  Herkimer,  (Mr.  HOFFMAN)  had  put 
the  question  in  a  clear  light,  rle  only  proposed 
that  the  legislature  should  have  the  power  to  pre- 
scribe the  manner  and  mode  and  form,  and  to 
avoid  misconstruction,  he  would  change  the 
phraseology  of  his  amendment,  and  substitute 
"  as  shall  have  been  provided  by  law,"  for  "  as 
may  be  provided  by  law."  This  would  obviate 
the  objection  that  might  be  entertained,  to  legis 


lation  for  a  particular  case,  and  would  require 
the  legislation  to  be  general. 

Mr.  MORRIS  said  that  if  any  gentleman  had 
conveyed  the  idea  impressed  on  his  mind,  as  to 
the  necessity  for  the  words  contained  in  the  sec- 
tion as  it  is,  he  would  not  have  troubled  the  Con- 
vention with  another  word.  It  was  necessary  that 
a  pardon  should  be  final,  and  that  there  should  be 
no  question  as  to  its  validity  afterwards.  If  the 
Executive  was  guilty  of  corruption,  he  should  be 
"mpeached,  but  the  pardon  should  be  effective. — 
Under  this  amendment,  the  legality  of  the  par- 
don could  be  tested,  and  the  judiciary  would 
have  to  settle  it.  But  if  the  Governor  puts  his 
signature  to  a  pardon,  it  should  be  effectual — 
there  should  be  nothing  to  invalidate  that. 

Mr.  WORDEN  said  that  the  gentleman  was  not 
altogether  sound  in  his  law,  when  he  said  that  the 
pardon  should  be  effectual.  A  pardon  granted 
by  the  Governor  may  be  impeached,  as  the  law 
now  stands,  if  obtained  by  fraud  or  corruption. 
This  was  the  law  as  settled  by  the  Court  of  Er- 
rors. 

Mr.  MORRIS  said  that  there  was  then  great- 
er necessity  for  the  words  in  the  original  sec- 
tion, for  this  reason: — If  you  permit  your  door  ^to 
be  opened  for  such  enquiries,  you  may  leave  the 
most  honest  pardon  to  be  tested  by  legislation. 

Mr.  WORDEN :  Such  a  case  is  pending  before 
the  Court  of  Errors. 

Mr.  MORRIS  contended  that  these  words 
should  be  in  for  the  express  power  of  prevent- 
ing this.  The  Executive  may  act  corruptedly, 
but  if  the  door  was  opened,  no  matter  how  hon- 
estly he  acted,  the  pardon  might  be  contested. — 
He  would  rather  have  errors  escape  uncorrected, 
than  truth  questioned  and  made  the  subject  of 
persecution  under  excitement.  As  to  the  ques- 
tion of  the  rules  to  be  prescribed,  in  relation  to 
the  practice  of  exercising  this  pardon — the  modus 
operandi — he  was  of  opinion  that  the  legislature 
should  have  the  power  to  do  that.  This  should 
be  provided  for  while  upon  the  powers  and  du- 
ties of  the  legislature,  and  not  in  this  article. 

Mr.  SHEPARD  was  opposed  to  the  amend- 
ment because  it  did  in  terms  strip  the  Executive 
of  the  pardoning  power.  It  gave  to  the  legisla- 
ture the  power  to  impose  any  restrictions  or  limi- 
tations it  may  see  fit,  and  compelled  them  to 
employ  the  Governor  only  as  their  agent  for  the 
exercise  of  .this  power.  They  could,  under  it, 
compel  the  Governor  not  to  grant  a  pardon  un- 
less assented  to  by  two-thirds  of  the  legislature, 
or  unless  under  the  direction  of  a  legislative  com- 
mittee. These  were  conditions,  limitations  and 
conditions.  If  the  Executive  was  to  be  stripped 
entirely  of  this  power,  it  was  better  in  a  bold  and 
manly  way  to  do  it,  and  to  confer  it  upon  the  le- 
gislature— and  then  to  direct  the  application  so 
made  to  where  the  power  lies,  and  where  it  was 
in  reality  exercised.  This  consideration  alone 
would  render  him  opposed  to  the  amendment. 

Mr.  RUSSELL  said  the  gentleman  last  up  had 
given  the  *rue  exposition  of  the  amendment,  and 
such  as  every  governor  would  be  bound  to  give  it 
if  adopted  in  the  Constitution,  The  great  evil  will 
be  that  the  legislature  never  could  adopt  certain 
general  resolutions  and  limitations  on  the  pardon- 
ing power,  that  would  be  safe  and  proper.  A  gen- 
eral rule  would  open  the  door  too  wide,  and  they 


357 


would  be  obliged  to  act  on  every  special  case. — 
He  would  suppose  a  case  that  had  been  and  may 
be  again.  He  would  suppose  a  case  where  a  peo- 
ple disgusted  by  grievances  for  which  they  have 
sought  redress  at  the  hands  of  the  legislature — 
that  legislature  too  telling  them  there  was  power 
to  alleviate  those  grievances.  He  would  suppose 
that  under  this  state  of  things,  the  people  thus 
suffering,  that  many  of  them  were  impelled  to 
violate  those  laws  which  they  felt  to  be  an  in- 
fringement of  their  rights— their  rights  of  pro- 
perty too.  And  if  in  the  general  conditions  pro- 
vided by  the  legislature  there  were  none  that 
would  reach  such  a  case  as  this,  was  it  supposed 
that  the  governor  would  interfere  when  that 
legislature  had  refused  to  alleviate  these 
grievances,  out  of  which  the  crimes  arose. — 
The  sentiment  in  favor  of  the  abolition  of 
capital  punishment  was  gaining  strength  and 
might  soon  force  the  governor  never  to  allow 
the  execution  of  a  criminal.  That  could  not  be 
settled  by  general  rules  of  legislation.  He  would 
leave  it  to  the  people  only  to  decide  as  to  the 
rectitude  of  the  exercise  of  this  power.  Could 
this  power  rightfully  be  placed  any  where  else  ? 
The  governor  was  amenable  to  a  power  which 
would  judge  him,  and  judge  him  correctly — the 
whole  people.  He  granted  that  it  have  been  oc- 
casionally exercised  through  mistake,  but  he  did 
not  believe  even  through  corruption.  But  even 
admitting  this,  was  the  legislature  exempt  from 
the  commission  of  mistakes,  or  the  influence  o: 
corruption.  With  the  great  mass  of  business  con- 
tinually before  the  legislature  would  the  case  be 
as  fully  examined  as  if  left  to  the  governor.  They 
would  never  have  time,  and  the  applicants  for 
panlons  would  throng  the  lobbies,  and  press  the 
legislature  to  exercise  it — whether  they  had  tim~ 
for  examination  or  not. 

Mr.  CHATFIELD:  Who  supposes  that  the 
legislature  is  to  have  power  to  pardon. 

Mr.  RUSSELL  saul  u  was  to  have  power  u 
impose  the  relictions,  which  was  the  same  thing 
in  effect.  The  Executive  power  of  mercy  thoulc 
be  left  pure  and  unsullied. 

Mr.  W.  TAYLOR  thought  the  amendment  gav< 
to  the  Legislature  too  much  latitude.  The  pat 
dining  power  must  rest  as  a  whole  with  some 
body  who  should  be  responsible  tor  its  exercise 
This  amendment  gives  lo  the  Legislature  the 
power  of  putting  away  this  power  by  condition 
and  limitations  He  agreed  that  there  should  bf 
some  conditions  relative  to  the  manner  of  apply 
ing  the  power,  and  he  would  offer  an  amendmen 
to  carry  his  idea  out  in  relation  to  that.  Thi 
would  leave  the  Legislature  to  provide  rules  to 
its  carrying  out,  leaving  the  exercise  of  th 
power  entirely  with  the  Governor. 

Mr.  MURPHY  asked  tor  the  previous  question 
but  withdrew  it,  at  the  request  of 

Mr.  SIOW,  tor  an  explanation.  He  wishec 
merely  tocoir.-ct  what  he  thought  might  be  amis 
apprehension,  and  might  be  cited  hereafter  as  th 
opinion  of  this  body.  He  denied  that  the  Icgislatur 
ever  had  or  would  have  under  the  present  Con 
dtitution  the  power  of  limiting  or  restricting  th 
exerci-e  of  the  pardoning  power,  Mr.  S.  re 
newed  the  call  for  the  previous  question. 

The  PRESIDENT,  in  reply  t>  several  enqui 
ries  as  to  the  effect  of  the  previous  question,  de 


led  that  it  wi«uid  cut  <.ff  no  amendments  pertp- 
ng,  or  that  had  been  offered  in  committee  of  tne 
*  hole. 

The  yeas  and  nays  were  called  for  on  the  mo- 
on to  second  the  call  for  the  previous  question 
nd  there  was  a  second,  ayes  54,  nays  36,  as  fol- 

w9 : 

AYES— Messrs.  Archer,  Ayrault.  Bouck,  Brown,  Brun* 
age.Bull.Cambreleng,  R,  Campbell,  jr.,  Candee,  Chamber' 
ain,  Clark,  Dorlon,  Flanders,  Greene,  Hart,  Ilotchkiss  A. 
luntmgton,  Hutchinaon,  Hyde,  Jones,  Jordon.  Kern'an 
Kingsley,  Kirkland,  Mann,  McNitt,  Maxwell,  Miller,  Mor- 
is, Murphy,  Nellis,  Nicoll,  Parish,  Penniman,  Perkins 
President,  Riker,  Russell,  St.  John  Salisbury,  Sear?' 
>haw,  Sheldon,  Simmons,  Smith,  Stephens,  Stetson' 
Strong,  Swackhamer,  Taft,  J.  J.  Taylor,  Tuthill,  VacKe' 
tVorden— 64. 

NOES— Messrs.  Angel,  H.  Backus,  Bascom,  Brayton, 
Chattield,  Conely,  Cornell,  Crocker,  Cuddeback,  Dana 
Danforth.Oebhard,  Harris,  Hawley,  Hoffman,  Nicholas' 
O'  Jonor,  Patterson,  Shaver,  Shepard,  E.  Spencer,  W  H. 
Spencer,  Stow,  Taggart,  Tallmadge,  W.  Taylor,  Tilden, 
fownsend,  Van  Schoonhoven,Wdterbury,  Willard,Wood 

.  B.  Wright,  Yawger,  Young,  Youngs— 36. 

The  main  question  was  then  ordered,  and  the 
question  being  taken,  on  the  amendment  of  the 
gentleman  from  Otsego,  (Mr.  CHATFIELD)  it  was 
rejected — ayes  39  nays  55,  as  follows : 

AYKS— Messrs.  Angel,  Archer,  Bascom,  Burr,  Chamb*r- 
ain.  Chatfield,  Conely,  Cornell,  Crooker,  Cuddeback,  Da- 
na, Danforth,  Flanders,  Gebhard,  Harris,  Hart,  Hawley 
rloft'man,  Hotchkiss,  Jones,  Maxwell,  Nellis,  Patterson,  St. 
John  Salisbury,  Shaver,  W.  H.  Spencer,  Strong  Swa'ck- 
haraer,  Tal't,  Taggart,  Tallmadge,  Tilden,  Van  Schoon- 
loven,  Waterbury,  W.B.  Wright,  Yawger,  Youngs 39. 

NOES— Messrs.  Ayrault,  H.  Backus,  Bouck,  Brayton. 
Brown,  Brundage,  Bull,  Cambreleng,  R.  Campbell,  jr., 
Clark,  Dorlon  Greene,  A.  Huntington,  Hutchinson  Hyde, 
Jordan,  Kernan,  Kingsley,  Kirkland,  Mann,  McNitt,  Miller, 
Morris,  Murphy,  Nicholas,  Nicoll,  O'Conor,  Parish,  Pen- 
niman, Perkins,  President,  Richmond,  Riker,  Russell. 
Sears,  Shaw,  Sheldon,  Shepard,  Simmons,  Smith,  E  Spen- 
cer, Stanton,  Stephens,  Stetson.  Stow,  J.  J.  Taylor,  W. 
Taylor,  Townsend,  Tuthill,  Vache,  Willard,  Wood,  Wor- 
den,  Young— 55. 

The  question  was  then  on  the  amendment  of  the 
gentleman  from  Onondaga  (Mr.  W,  TAYLOR)  to 
add  "subject"  to  such  regulations  as  may  be  pro- 
vided by  law,  relative  to  the  manner  of  applying 
pardons,  and  it  was  adopted.  Ayes  57,  nays  24. 

Mr.  TALLMADGE  proposed  to  add  the  word 
the'  before  the  word  "power"  in  the  5th  line, 
so  as  to  read  "  the  Governor  shall  have  the  pow- 
er &c."  and  so  as  to  prevent  a  joint  exercise  of 
the  power. 

Mr.  VAN  SCHOONHOVEN  enquired  if  that 
would  not  have  the  effect  to  divest  the  legislature 
of  a  joint  power  in  this  power. 

Mr;  TALLMADGE  said  that  such  was  the  in- 
tention. 

The  amendment  was  adopted. 

Mr.  STOW  wished  to  ask  a  reconsideration  of 
the  vote,  on  the  proposition  to  allow  the  legisla- 
ture to  regulate  the  manner  of  applying  for  par- 
don. He  did  not  wish  the  petitioning  power  regu> 
lated.  Laid  over  under  the  rule. 

The  fifth  section  was  then  adopted. 

The  sixth  section  was  then  read. 

Mr.  CROOKER  moved  to  change  the  phrase- 
ology,  so  as  to  provide  that  the  Lieut.  Governor 
should  be  governor  in  the  absence  of  the  Execu- 
tive. This  was  rejected. 

Mr.  SWACKHAMER  moved  to  add  to  the  9th 
line,  after  the  word  military,  the  words  "  and 
naval  forces." 


358 


The  amendment  was  rejected. 

The  sixth  section  was  then  agreed  to. 

The  seventh  section  was  then  read. 

Mr.  PATTERSON  said  that  there  was  no  pro- 
vision for  the  election  of  a  President  of  the  Sen- 
ate, in  the  case  of  the  absence  of  the  Lieutenant 
Governor. 

Mr.  RICHMOND  said  that  was  to  be  provided 
for,  when  regulating  the  powers  and  duties  of  the 
Senate. 

Mr.  O'CONOR  moved  to  strike  out  from  the 
first  and  second  lines,  the  words  which  provided 
that  the  Lieutenant  Governor  should  "  possess  the 
same  qualifications  of  eligibility  for  office  as  the 
Governor,"  and  he  called  for  the  ayes  and  nays, 
which  were  ordered.  This,  Mr.  O'C  said,  was 
the  introduction  of  a  set  of  new  disqualifications 
not  provided  in  the  Constitution  of  .'21,  and  he 
therefore  desired  that  the  ayes  and  nays  might  be 
called. 

Mr.  A.  W.  YOUNG  said  that  as  the  Lieuten- 
ant Governor  was  in  case  of  a  contingency  to  be 
the  Governor,  it  was  but  proper  that  he  should 
be  subject  to  the  same  restrictions. 

Mr.  O'CONOR  replied  that  there  should  be  the 
same  provision  extended  to  the  President  pro 
tern,  of  the  Senate,  for  he  might  also  be  called 
upon  to  discharge  the  duties  of  Governor.  If 
that  was  done,  it  then  would  be  necessary  to  ex- 
tend the  same  provision  to  every  member  of  the 
Senate,  for  each  would  be  eligible  to  be  selected 
for  that  post. 

The  question  being  taken  the  amendment  was 
voted  down — ayes  34,  nays  59,  as  follows  : 

AYES— Messrs.  Archer,  Bascom,  Brown,  Camfereleng, 
D.  Campbell,  jr ,  Chatneld,  Conely,  Danlorth,  Dorlon, 
Flanders,  Harris,  Hart,  Jones.  Kernan.  Mann,  Murphy. 
Nellis,  O'Conor,  Patterson,  Perkins,  Russell,  Shepi  rd, 
Stephens,  Swackhamer,  W.  Taylor,  Townsend,  Vache, 
Van  Schoonhoven,  Witbeck,  Worden,  W.B.  Wright— 34. 

NOES— Messrs.  Angel,  Ayrault,  H.  Backus,  Bouck, 
Brayton,  Bull,  Candee,  Chamberlain,  Clark,  Croeker, 
Cucldeback,  Dana,  Gebkard,  Greene,  Hawley,  Hoffman, 
Hotcbkiss,  A.  Huntington,  Hutchinson,  Hyde,  Jordan. 
Kingsley,  Kirkland,  McNitt,  Maxwell,  Miller,  Morris, 
Nicholas,  Nicoll,  Parish,  Penniman,  President,  Richmond. 
Riker,  St.  John,  Salisbury,  Sears,  Shaver,  Shaw,  Sheldon^ 
Simmons,  Smith,  E.  Spencer,  W.  H.  Spencer,  Stanton, 
Stetson,  Stow,  btrong,  Taft,  Taggart,  Talhnadge,  J.  J. 
Taylor,  Tuthill,  Waterbury,  Wiliard,  Wood,  Yawger, 
Young,  Youngs— 69. 

The  seventh  section  was  then  agreed  to. 

The  eighth  section  was  then  read  and  adopted. 

The  ninth  section  was  then  read. 

Mr.  MURPHY  proposed  an  amendment,  de- 
signed to  prevent  the  governor  from  being  ex 
officio  an  officer  of  any  corporation  of  a  private  or 
local  character. 

Mr.  KIRKLAND  said  that  the  amendment  ought 
to  be  adopted,  for  as  the  section  now  stood  it 
would  prevent  the  governor  from  attending  to  his 
private  business.  It  would  even  prevent  him 
from  being  an  officer  in  a  religious  association. 
This  difficulty  would  be  obviated  by  the  amend- 
ment of  the  gentleman  from  Kings,  while  it  would 
at  the  same  time,  prohibit  him  from  being  ex  of- 
ficio an  officer  in  any  of  those  private  corpora- 
tions of  which  there  might  soon  be  some  com- 
plaint. As  the  section  now  stands  the  Governor 
would  not  be  free  to  exercise  the  ordinary  rights 
of  his  fellow  citizens  in  reference  to  his  own  pri- 
vate affairs. 


Mr.  PATTERSON  said  the  only  institution  in 
the  state  that  he  was  aware  of,  where  the  gover- 
nor was  ex  officio,  trustee  or  officer,  was  Union 
College.  This  was  the  only  end  that  would  be 
attained  by  the  adoption  of  this  amendment,  and 
he  thought  it  to  be  rather  small  business  to  be  put 
in  here. 

Mr.  STOW  said  if  he  understood  correctly  the 
charter  of  Union  College,  the  Governor  was  made 
an  officer  of  that  institution  by  that  grant.  That 
could  not  be  changed  without  a  violation  of  the 
U.  S.  Constitution,  as  decided  in  the  case  of  Dart- 
mouth College. 

Mr.  MURPHY  wished  to  guard  from  what 
might  happen,  as  well  as  what  had  happened  in 
this  matter.  The  question  instanced  in  relation 
lo  Dartmouth  College  was  of  no  application  here — 
If  it  was,  the  people  could  not,  even  if  they  saw 
fit,  dispense  with  the  office  of  Governor,  because 
that  officer  was  made  ex-officio  a  trustee  of  that 
corporation,  and  it  would  be  a  violation  of  private 
rights  so  to  do. 

Mr.  RICHMOND  opposed  the  amendment.  He 
was  satisfied  with  the  section  as  it  stood. 

Mr.  JORDAN  was  opposed  to  the  amend- 
ment. The  section  was  well  considered  in  com- 
mittee of  the  whole  the  other  day,  and  the  object 
of  prohibiting  the  Governor  from  being  an  officer 
of  these  private  institutions,  was  he  apprehended 
well  understood,  when  that  vote  was  taken.  *It 
was  to  prevent  an  undue  influence  that  migbt  be 
exerted  in  the  discharge  ot  the  official  duties  by 
his  connection  with  these  institutions.  This 
amendment  would  bring  back  the  same  evils 
sought  to  be  guarded  against,  by  allowing  them 
to  be  elected  to  such  stations  by  these  corpora- 
tions. Besides,  even  religious  corporations  often 
had  pecuniary  interests  involved  before  the  Leg- 
islature. He  preferred  to  leave  the  section  as  it 
is. 

Mr.  SIMMONS  could  see  no  difference  in  the 
principle  of  allowing  a  governor  to  hold  an  office 
that  he  held  prior  to  his  election,  and  permitting 
him  to  be  elected  to  one  afterwards.  It  there  was 
evil  in  the  latter  case,  it  applied  equally  to  the 
former. 

Mr.  MURPHY  said  that  the  electors  in  the  one 
case  were  supposed  to  have  full  knowledge  of  the 
fart  of  his  being  an  officer  or  trustee  of  such  ia- 
siitution. 

Mr.  SIMMONS  said  that  perhaps  the  reason 
why  he  could  see  no  reason  tor  the  amendment, 
was  in  the  fact  that  he  could  see  no  reason  for  the 
entire  section.  Mr.  S.  went  on  to  urge  that  this 
power  was  reserved  in  the  Constitution,  for  the 
benefit  of  the  State  as  against  those  institutions,  ra- 
ther than  for  the  benefit  of  the  institutions.  Mr. 
S.  argued  generally  against  this  idea  of  dissolving 
the  connection  between  these  high  offices  of  State, 
and  these  literary  institutions. 

The  question  being  taken,  the  amendment  was 
vo'ed  down. 

Mr.  CHATFIELD  moved  to  amend  so  as  to 
strike  out  the  word  "or  place"  It  was  too 
general  in  its  meaning,  and  would  even  prevent 
he  governor  from  being  a  member  of  the  church. 

The  amendment  was  adopted. 

Mr.  W.  TAYLOR  moved  to  strike  out  the 
words,  "  Or  any  office  or  place  in  a  private  cor- 
poration." Was  it  possible  that  the  Convention 


359 


meant  to  say  that  the  Governor  should  not  even 
be  an  officer  of  a  church.  That  if  he  accepted 
the  office  of  a  deacon,  or  a  ruling  elder  in  a 
church,  that  he  was  to  vacate  the  executive  chair  ? 
Could  the  Convention  mean  to  be  so  illiberal  to- 
wards their  Executive  officer  as  that. 

Mr.  SWACKHAMER  knew  what  he  was  vo- 
ting for  when  he  voted  for  this  amendment.  It 
was  not  absolutely  necessary  that  the  Governor 
should  hold  those  offices. 

Mr.  STEPHENS  coincided  in  the  views  of  the 
gentleman  from  Onondaga.  The  gentleman  elec- 
ted might  have  a  sum  of  money  which  he  might 
wish  to  invest  in  a  private  institution,  and  he 
saw  no  reason  why  he  should  be  prevented  from 
going  in  that  institution  as  an  officer,  the  same  as 
any  private  individual,  and  look  to  his  own  in- 
terests the  same  as  a  private  individual.  He 
thought  this  would  be  a  most  ungenerous  tres- 
pass on  his  private  rights. 

Mr.  RICHMOND  said  that  (he  ordinary  duties 
of  the  Executive  would  be  quite  sufficient  to  take 
up  his  whole  time.  In  the  mailer  of  a  religious* 
society,  the  church  would  be  just  as  well  off  in 
selecting  another  man  for  an  officer  as  the  Cover, 
nor.  Neither  would  he  have  the  Governor  an 
officer  in  a  corporation  because  he  might  invest 
funds  therein.  Every  man  who  held  stock  in  a 
corporation  could  not  be  an  officer  in  it,  and  he 
would  leave  the  Governor  to  take  the  same  chance 
an  such  stockholders. 

Mr  A.  W.  YOUNG  would  ask  whether  the 
fact  of  a  man  being  a  stockholder  would  not  in- 
fluence him  in  favor  of  the  institution  ?  Why  not 
strike  that  out  ? 

Mr.  W.  TAYLOR  said  that  the  whole  of  the 
argument  or  the  gentleman  from  Gentsee  went 
to  affe  t  the  rights  of  conscience.  The  gentle- 
man had  but  one  step  to  go  and  say  that  he  should 
not  be  a  member  of  a  religious  society  at  all.  If 
a  Governor  was  a  stockholder,  he  would  just  as 
much  be  interested  in  an  institution  as  if  he  was 
a  director. 

Mr.  RICHMOND  wished  to  be  distinctly  un- 
derstood that  he  was  in  favor  of  the  Goveinor  be- 
ing a  member  of  the  church  and  ot  any  one  that 
he  pleased. 

Mr.  VV.  TAYLOR  called  for  the  ayes  and  nays 
on  his  amendment  and  they  were  ordered.  It 
was  carried— ayes  47,  nays  43— as  follows  : 

AYES— Messrs.  Ayrault,  Bascom,  Bouck,  B^yton.  Bull, 
Cambreleng,  il.  Campbell,  jr.,  Candee,  Conely,  Danlbrth, 
Dorlon,  Greene,  Harris,  Hart,  Hawiey,  Hotchkiss.  Jones, 
Jordan,  Kingsley,  Kirkland,  McNitt,  Maxwell,  Miller  Ni- 
cholas, Nicoll,  O'Conor,  Farish,  Patterson,  Perkins,  Presi 
dent,  Riker,  Russell,  Salisbury,  Shaver,  Sheldon,  Sim 
mons,  Smith,  K.  Spencer,  Stephens,  Stow,  J.  J.  Taylor, 
W.  Taylor,  Witbeck,  Worden,  W.  B.  Wright,  Young, 
Youngs— 47. 

NOES— Messrs.  Angle.  H.  Backus,  Brown,  Brundage 
Burr,  Chatfield,  Clark,  Cook,  Cornell,  Crooker,  Cudde- 
back,  Dana,  Flanders,  Gebhard,  Hoffman,  A.  Huntington 
Hutchinson,  Kernan,  Mann,  Morris,  Murphy,  Nellis,  Pen- 
niman,  Richmond,  St.  John,  Sears,  Shaw,  Shepard,  W.  H 
Spencer,  Stanton,  Stetson.  Strong,  Swackhamer,  Taggart 
Tallma.ige,  Towosend,  Tuthill,  Vache,  VanSchoonhoven 
Warren,  Waterbury,  Wood,  Yawg»  r— 43. 

Mr.  WORDEN  to  correct  a  clerical  error 
moved  to  amend  by  changing  the  word  <:the,"  in 
the  6th  line;  to  '"his,"  and  striking  out  the  words 
"to  them,"  in  the  same  line;  and  also,  from  the 
word  "office,"  in  the  same  line,  to  the  end  of  the 
sentence. 


Mr.  RICHMOND  saw  nothing  now  worth  pre- 
serving in  the  section,  and  moved  to  strike  it  all 
out. 

The  question  being  taken,  Mr.   WORDEW'S 
amendment  was  adopted. 

Mr.  O'CONOR  said  that  it  struck  him  that  this 
was  a  very  bad  section,  and  ought  to  be  stricken 
out.  In  the  introduction  of  provisions  of  this 
dnd,  evils  should  be  suggested  that  had  occur- 
ed,  and  which  would  serve  as  a  reason  for  the 
change.  He  had  heard  of  no  evil  ever  having 
arisen  from  the  Governor  being  eligible  to  office 
under  the  general  government.  To  introduce 
such  a  change  from  the  mere  fancied  possibility 
of  such  an  evil  occurring,  would,  it  seemed  to 
lim,  be  unwise.  Independent  of  that,  the  re- 
striction against  holding  an  office  under  the  gen- 
eral government,  might  be  found  inconvenient — 
Hie  could  conceive  a  case,  in  which  it  would  be 
found  a  very  great  detriment  to  the  convenience 
of  justice.  There  were  also  frequently  contro- 
verses  arising  between  States,  and  under  a  law  of 
"ongress,  it  might  be  deemed  proper  to  submit 
the  case  to  the  arbitration  of  the  Governors  of  the 
neighboring  States.  And  who  more  likely  than 
the  Governor  of  the  great  and  majestic  State  of 
New-York  ?  What  mischief  could  arise  from 
that  ?  As  to  holding  office  under  a  foreign  State, 
it  seemed  to  him  to  be  idle  to  suppose  that  the 
Governor  would  ever  hold  such  an  office.  There 
was  a  very  nice  point  of  law  involved  in  the  ques- 
tion of  what  should  constitute  an  officer,  and  to 
what  that  appellation  strictly  applied.  He  thought 
the  entire  section  unwise,  and  moved  to  strike  it 
out ;  and  on  that  motion  he  called  for  the  ayes 
and  nays. 

Mr.  R.  CAMPBELL  said  that  the  same  pro- 
vision existed  in  regard  to  members  of  the  legis- 
lature, and  it  seemed  to  him  the  propriety  of  it 
was  so  manifest  that  it  should  be  retained.  It 
would  be  right  that  if  the  governor  should  hold  an 
office  under  the  general  government  which  should 
occupy  a  large  portion  of  time,  he  should  be 
obliged  to  vacate  the  latter.  Another  reason  was 
that  there  might  be  a  conflict  in  the  discharge  of 
the  functions  of  the  officers. 

Mr.  STETSON  would  agree  that  we  had  lost 
a  very  valuable  feature  in  the  section — one  which 
had  not  been  fairly  considered,  he  admitted.  But 
he  hoped  what  was  still  of  value  would  be  re- 
tained, and  perhaps  what  of  value  was  lost,  might 
be  regained.  He  voted  to  sustain  all  the  local  in- 
stitutions when  he  voted  against  allowing  any  lo- 
cality to  usurp  all  the  influence  which  the  Gov- 
ernor by  virtue  of  his  office  has  obtained.  The 
question  was  whether  localities  should  monopo- 
lize all  this  influence.  As  governor,  he  owed 
his  influence  to  all,  and  he  should  use  it  for  the 
benefit  of  all.  What  was  the  success  of  one  in- 
stitution was  often  the  death  of  another.  No  one 
he  presumed  objected  to  the  governor  being  an 
officer  in  a  religious  incorporation;  this  proposi- 
tion was  not  aimed  at  that.  To  prevent  the  ac- 
ceptance of  office  at  the  hands  of  the  general  gov- 
ernment was  to  prevent  a  fusion  of  the  powers  of 
the  two  governments.  He  would  move  a  recon- 
sideration of  the  last  vote. 

This  motion  under  the  rule  lies  over  one  day. 

Mr.  RICHMOND  thought  the  most  valuable 
part  of  the  section  stricken  out  now,  and  there- 


360 


fore  they  had  better  strike  it  all  out.  Are  the 
gentlemen  who  say  that  the  Governor  shall  hold 
no  office  in  any  College  here,  in  this  State,  dis- 
posed to  say  that  the  Governor  shall  hold  no  of- 
fice in  the  Smithsonian  Institute  ?  He  gave  gen- 
tlemen full  credit  for  sincerity  in  the  votes  they 
had  given,  but  he  did  not  wish  them  to  stultify 
themselves. 

Cries  of  "  Question,"  "  question." 
Mr.  SIMMONS  did  not  want  the  section  so  to 
stand  as  to  prevent  the  Governor  from  holding 
any  office  pro  hac  vice,  under  the  General  Gov- 
ernment, and  it  would  be  unwise  to  prohibit  him 
from  doing  what  the  General  Government  re- 
quired him  to  do  on  pain  of  forfeiting  his  office. 
Such  duties  as  an  examiner  of  the  Cadets  of  the 
West  Point,  and  other  similar  duties  under  the 
general  government,  he  ought  to  have  privilege 
to  perform.  This  was  belittleing  our  Executive 
and  ourselves.  Why,  they  would  not  under  this, 
allow  our  Governor  to  execute  the  duties  of  deli- 
vering up  criminals  under  the  law  of  the  United 
States.  He  hoped  the  whole  section  would  be 
stricken  out. 

Mi.  BASCOM  said  that  governors  sometime^ 
were  boundary  commissioners,  and  Indian  com- 
missioners. He  thought  it  desirable  to  let  them 
be  eligible  to  such  offices. 

Mi.  TAYLOR  asked  for  an  instance  of  this 
kind. 

Mr.  BASCOM  said  the  governor  of  Maine  was 
a  boundary  commissioner. 

Mr  O'CONOR  demanded  the  ayes  and  noes. 
They  were  ordered, 

Mr.  STOW  hoped  this  section  would  be  stricken 
out.  It  would  all  come  up  hereafter  under  th. 
bth  section  of  the  repoit  ot  committee  No  4, 
(Mr.  HOUCK'S)  Document,  No.  51,  where  the 
whole  inatier  was  fully  provided  for 

The  question  was  taken  on  the  adoption  of  the 
9;h  section  as  thus  amended: 

fc  9.  Neither  the  Governor  or  Lieutenant-Governor  shal 
hold  any  office  under  any  other  government  except  a  mil- 
itary command  under  the  United  States  in  time  ot  war,  or 
in  case  of  insurrection.  And  the  acceptance  by  either  o. 
any  office  hereby  prohibited,,  shall  vacate  his  office. 

And  it  was  lost — ayes  46,  noes  46 — as  follows 
AYES— Messrs.  Angel,  Archer,  Ayrault,  Brayton 
Brown,  Brundage,  Burr,  Cambreleng,  R  Campbell,  jr. 
Chatfield  Cook,  Cornell,  Cuddeback,  Flanders,  Gebhard 
Hart,  Hoffman,  A.  Huntington,  Jordan,  Kernan,  Mann 
Miller,  Morris,  Nellis,  Nicholas,  Nicoll,  Penniman,  Rus 
eell  St  John  Shaw,  Sheldon,  Shepard,  Stanton,  Stetson 
Strong,'  Taft/Tallmadge,  J.  J  Taylor,  W.  Taylor,  Tuthill 
Van  Schoonhoven,  Waterbury,  Wood,  Yawger,  Young 
Youngs— 46. 

jxOES Messrs.  H  Backus,  Bascom,Bouck,  Bull,  Cham 

berlain,  Clark,  Conely,  Crooket,  Dana,  Danforth,  Dorlon 
Greene,  Harris,  Haw  ley,  Hotchkiss,  Hutchinson,  Hyde 
Jones  Kingsley,  Kirkland,  McNitt,  Maxwell,  Murphy 
O'Conor  Parish,  Patterson,  Pre  ident,  Richmond,  Rikei 


was  an  ample  provision  made  for  the  matter  by 
committee  No.  7.  Sheriffs  and  all  officers  were 
hen  provided  for.  The  10th  section  was  then 
'ricken  out — ayes  41,  noes  46. 
The  llth  section  was  then  read — on  the  veto. 
§  11.  Every  bi.l  which  shall  have  passed  the  Senate  and 
ssembly,  shall,  beiore  it  becomes  a  law,  be  presented  to 
ie  Governor;  if  he  approve,  he  shall  sign  it;  but  it  not  he 
hall  return  it  with  his  objection*  to  that  house  in  which 
shall  have  originated;  who  shall  enter  the  objections  at 
irge  on  their  journal,  and  proceed  to  reconsider  it.  It 
Tier  such  reconsideration  two  thirds  of  all  the  members 
ecte<i  shall  agree  to  pass  the  bill,  it  shall  be  sent,  together 
ith  tne  objections,  to  the  other  house,  by  which  it  shall 
kewisebe  reconsidered,  and  it  approved  by  two  thirds  of 
lithe  members  elected,  it  shall  become  a  law,  notwith- 
anding  the  objections  of  the  Governor.  But  in  all  such 
ases,  the  votes  of  both  houses  shall  be  determined  by  yeas 
nd  nays,  and  the  names  of  the  members  vo  ing  for  and 
gainst  the  bill  s-hall  be  entered  on  the  journal  of  each 
ouse  respectively  If  any  bill  shall  not  be  returned  by 
le  Governor  within  ten  days  (Sundays  excepted)  after  it 
nil  have  been  presented  to  "him,  the  s,ime  shall  be  a  law, 
like  manner  as  if  he  had  signed  it,  unless  the  Legislature 
ill  by  their  adjournment  prevent  its  return;  in  which 
ase  it  shall  not  be  a  law. 

Mr.  NICHOLAS  moved  to  strike  out  "  all"  in 
he  6th  line,  and  the  words  "  elected"  in  the  7th 
nd  10th  line;  and  to  insert  in  the  7th  line  in 
dace  of  the  word  "  elected"  the  word  "  present," 
o  as  to  let  two-thirds  of  all  the  members  present 
epass  a  bill  after  the  Executive  has  vetoed  it. 

Mr.  CHATFIELD  moved  to  amend  further  by 
triking  out  the  words  '*  two-thirds"  in  the  6th 
nd  9th  line,  and  insert  in  lieu  thereof  the  words 
*  a  majority."  He  believed  this  a  fair  reflection 
f  the  popular  will.  He  was  in  favor  of  the  ma- 
ority  principle — he  believed  there  was  always  a 
iisposition  in  the  legislature  to  harmonize  with 
he  Executive.  He  was  opposed  to  the  one-man 
jower.  It  was  not  in  harmony  with  the  genius 
if  our  institutions,  and  he  thought  that  if  a  majo- 
ity  of  all  the  members  elected  were  allowed  to 
pass  a  bill  a  second  time,  the  Governor 
.vould  then  have  sufficient  power  left  in  his 
lands  in  relation  to  the  veto.  No  one  man 
should  ever  stand  between  the  popular  will  and 
;he  act  of  the  Legislature  in  carrying  it  out. — 
Some  of  the  States  gave  no  veto  power  to  their 
Governor.  In  Iowa  the  majority  principle  pre- 

ailed,  and  in  some  the  two-third  principle.  He 
would  strip  the  Executive  of  this  power,  so  long 
as  he  was  a  co-ordinate  branch  of  the  Legislature, 
He  would  not  make  him  a  mere  clerk  to  sign  bills, 
without  any  discretionary  power  over  them.  But 
ordinarily  the  power  to  arrest  the  passage  of  a 
bill,  unless  repassed  by  a  majority  of  those  elected 
to  the  two  houses,  was  power  enough  for  one 
man.  To  say  that  it  should  require  two-thirds 
of  all  elected  to  pass  a  bill  against  a  veto,  would 


Jones,  Kingsley 

O'Conor,  Parish, 

Salisbury,  Sears,  Shaver,  Simmons,  Smith,  E.  Spencer,  W 

H  Spencer,  Stephens,  S<ow,  Swackhamer,  Taggart,  Town 

send,  V ache,  Warren,  Willard,  Worden,  W.B.  Wright- 

'  Mr,  STETSON  gave  notice  that  he  woul 
move  for  a  reconsideration. 

The  10th  section  was  then  read  : 

fe  10-  The  Governor  may  remove  from  office  any  sheri 
at  any  time  within  the  period  for  which  such  sheriff  wa 
elected  He  shall  first  give  to  such  sherifi'  a  copy  of  th 
charges  against  him  and  an  opportunity  of  being  heard  ' 
his  defence,  before  any  removal  shall  be  made. 

Mr.  NICOLL  moved  to  strike  it  out.    Ther 


be  to  give  the  Executive  all  power  over  the  le- 
gislation of  the  State — for  the  influence  of  any 
administration  in  the  legislature — the  desire  there 
to  harmonise  with  the  Executive — was  of  itself 
equal  to  at  least  one-third  of  the  house.  He  al- 
ways had  been  and  always  should  be  opposed  to 
this  one  man  power,  which  was  only  a  relic  of 
the  monarchical  institutions  of  the  old  world. 

Mr.  MANN  was  also  opposed  lo  the  one-man 
power  ;  and  he4  wished  to  have  a  clause  inserted 
in  the  constitution  so  that  no  bill  should  be  allow, 
ed  to  pass  the  Legislature  unless  it  had  a  majority 
of  all  the  members  elected.  (Cries  of  "  that's 
right.")  As  the  constitution  stands  at  present,  a 


361 


mere  majority  of  all  those  present  in  the  le- 
gislature can  now  pass  any  law;  some  33  members 
can  do  so;  and  instances  have  been  known  where 
very  few  more  in  number  of  members  than  33  have 
passed  very  important  laws  through  the  legisla- 
ture  of  this  State.  This  must  be  put  a  stop  to. — 
And  if  no  other  member  would  do  so,  he  would, 
at  the  proper  time,  move  an  amendment  to  effect 
this,  when  the  report  of  (lie  committee  on  the 
powers  and  duties  of  the  Legislature  should  come 
under  consideration.  And  'it  this  measure  was 
adopted,  as  he  was  firmly  convinced  it  would  be, 
by  this  Convention,  then  he  would  ask  the  gen- 
tleman from  Otsego  (Mr.  CHATFIELD,)  wha' 
would  become  of  the  Veto  power,  should  his  (Mr. 
CHATFIELD'S)  amendment  pass?  He  (Mr.  M  ) 
therefore  wished  the  section  to  stand  as  it  passed 
through  the  committee  of  the  whole. 

Mr.  HARRIS  said  the  Convention  would  bear 
him  witness  that  he  had  not  often  forced  himself 
upon  their  attention.  Most  of  the  questions  which 
had  hitherto  been  the   subject  of  discussion,  he 
regarded  as  of  little  importance— but   it  was   not 
so  with  regard  to   the  question  under  considera- 
tion.    Had  the  section  remained  as  it  was  report- 
ed by  the  committee,   he  might  have  contented 
himself  with  giving  a  silent  vote  on  the  proposi- 
tion— but  since  the  section  had  been  amended  in 
committee  of  the  whole,  so   as   to   require   two- 
thirds  of  all  the  members  elected  to  each  branch 
of  the  Legislature  to  pass  a  law  after  it  had  been 
returned  by  the  Governor,  he  could  not  reconcile 
it  with  his  sense  of  duty  to  suffer  it  to  be  adopted 
without  further  discussion.     If  he  understood  the 
popular  sentiment  in  regard  to  the  object  of  this 
convention,  it  aad  been  demanded  with  great  una- 
nimity that  the  Executive  power  and  patronage 
should  be  greatly  curtailed  and   restricted.     And 
he  confessed  he   had  anticipated,  that  provision 
would  have  been  made  in  the  new  constitution  by 
an  almost  unanimous  rote  of  the   Convention, — 
whereby  a  majority  of  all  the  members  elected  to 
each  branch  of  the   Legislature  might  pass  a  law 
notwithstanding  the  Executive  Veto.    It  had  been 
with  some  surprise  that  he  had  seen  those  who 
occupied  the  position  of  the  progressive  democra- 
cy in  this  body,  not  only   taking  ground   agains 
any  further  restriction  of  the  veto  power,  but  ac 
tually  voting  to  extend  and  strengthen  the  con 
trol  of  the  Executive  over  the  legislative  depart 
ment.     He  might  perhaps  have  known  better  hat 
he  reflected  that  this  two-third  principle   formed 
a  prominent  feature  in  the  creed  put  forth  by  th 
celebrated  Baltimore  Convention.     It  was   upon 
this  ground  alone  that  he  could  account  for   th< 
position  he  found  gentlemen   occupying   on   thi 
question.   It  is  a  sound  maxim,  that  in  order  long 
to  preserve  any  free  government,   it  must  occa 
sionally  be  brought  back  to  first  principles.    Am 
it  is  peculiarly  fit,  in  a  body  like  this,  convened 
for  the  express  purpose   of  revising  the   funda 
mental  law  of  the  State,  that  we  should  recur  ti 
the  cardinal  principles  upon   which  our  govern 
ment  was   founded — that  we  should  review  thi 
past,  and  see  what  progress  we  have  made,  in  or 
der  that  we  may  be  the  better  prepared  to  tak> 
observations  for  our  future  course,  and  determine 
what  changes  are  required.     This  question,  of  th 
veto  power,  was  much  discussed  in  the  conven 
tion  which  framed  the  Constitution  of  the  Unitei 

23 


tates.     Some  of  the  wisest  statesmen  in  that 
ody — among  whom  was  Dr.  Franklin — were  op- 
osed  to  vesting  a  negative  power  in  the  nation- 
1  Executive.     A  majority,  however,  determined 
therwise.     They  thought  the  Executive  branch 
f  the  government,  as  compared  with  the  legisla- 
ive,  would  be  too  weak,   and  this  power  was 
herefore  vested  in  the  Executive  for  the  purpose 
f  self-protection.     Experience   had  shewn,  he 
hought,  that  this  was  a  mistake.     The  formi- 
able  and  overshadowing  power  of  the  national 
Executive  had  already  become  the  subject  of 
eep  apprehension,  and  he  predicted,  that  unless 
t  should  be  materially  checked  and  restricted,  it 
.vould  result  in  the  most  fearful  consequences. 
The  encroachments  of  power   had   always  been 
gradual.     The  history  of  our  national  government 
brmed  no  exception  to  this  rule.     A  recurrence 
o  the  circumstances  under  which  the  veto  pow- 
er had  been  exercised  by  the  national  Executive, 
rom  time  to  time,  would  show  this.     Before  Ge- 
neral Washington  would  resort  to  it,  he  required 
he  written  opinions  of  Mr.  Jefferson,  Mr.  Madi- 
on,  and  Mr.  Randolph,  then  Attorney  General, 
hat  the  law,  in  reference  to  which   it  was  pro- 
)osed  to  exercise  this  extraordinary  power,  was 
clearly  unconstitutional      On  one  other  occasion 
during  his   eight  years  administration,   and   but 
one,  was  this  power  employed  by  General  Wash- 
ngton.     Neither  the  elder  Adams  nor  Mr.  Jeffer- 
son employed  it  at  all.     Mr.  Madison  vetoed  six 
jills  and  Mr.  Monroe  one,  during  their  adminis- 
:rations — always  upon  the  ground  that  the  laws 
were  unconstitutional.     Even   General   Jackson, 
in  his  eleven  vetoes,  had  never  ventured  to  place 
tiis    objections    upon   other    than   constitutional 
grounds.     It  remained  for  John  Tyler  to  exercise 
this  prerogative  on  the  ground  of  expediency.    It 
was  left  for  one  who  had  accidentally  become 
President — who  had  been   elevated  to  that  office, 
without  any  popular  election,  by  a  sad  dispensa- 
tion of  Providence,  to  set  up  his  will  against  that 
of  the  people,  and  by  a  series  of  Executive  vetoes 
to  defeat  and  nullify  the  whole   action  of  the  le- 
gislative authority  of  the   Union,   with  reference 
to  the  most  important  interests  of  the  nation. — 
Measures  involving  the  credit  and  the  best  good 
of  the  Union,  had  been  defeated  and  annulled  by 
the  weak  and  wavering  obstinacy  of  one  man,  as- 
suming the  right  to  obstruct  the   people  in  the 
process  of  self  government.     It  is  the  part  of  wis- 
dom to  profit  by  experience — and  such  an  abuse 
of  this  power  in   the   national   Executive  admo- 
nishes us  to  beware  lest  we  expose  ourselves  to 
the  like  abuse,  by  giving  too  wide  a  scope  for  its 
exercise.      Mr.    H.    had,     he    said,    examined 
the    twenty   nine    Constitutions    of  the    States 
of    the     union,     including    Iowa,     with     refer- 
ence  to   this  question,  and   he  found   that   there 
were  nine  States  which  did  not  allow  the  governor 
any  negative  upon  the  acts  of  the   Legislature. — 
In  ten  others   the   majority    principle   had    been 
adopted.     In  five,  including  our  own  State  it  had 
been   provided  that   two-thirds   of  the    members 
present   might    pass    a   law   notwithstanding  the 
executive  veto.     In  four  others  the  same  phraseo- 
logy, found    in  the    Constitution  of    the   United 
Statos,  had  been   adopted,  providing  that  a  bill   if 
vetoed    should    become   a  law    if    subsequently 
passed  by  two-thirds  of  each  house  of  the  Legis 


362 


lature — and  that,  in  the  constitution  of  Louisiana 
alone,  was  fount!  the  provision  adopted  in  commit- 
tee of  the  whole  requiring  two-thirds  of  all  the 
members  elected  to  each  branch  of  the  Legisla. 
ture  to  overcome  the  negative  of  the  governor. — 
The  history  of  other  countries  also  furnished  use- 
ful lessons  of  instruction  on  the  point-  The  veto 
power  was  first  instituted  under  the  Roman  Re- 
public. Its  object  was  to  protect  the  people 
against  the  edicts  of  the  Roman  Senate — an  aris- 
tocratic body,  having  but  little  sympathy  for  the 
people,  and  with  which  the  masses  had  but  little 
affinity.  '  Upon  the  demand  of  the  people  they 
were  permitted  to  elect  annually  officers  called 
Tribunes,  to  whom  was  committed  the  pro 
tection  of  the  rights  ot  the  people.  It  was 
in  its  origin  a  democratic  institution  design, 
ed  to  protect  the  oeople  against  thft  tyran- 
ny of  Roman  nobility.  For  a  time  it  work- 
ed well— but  subsequently  its  operation  was  dis- 
astrous—at first  it  protected  the  people— gave 
them  a  voice  in  the  legislative  assemblies,  and 
secured  their  liberties.  But  it  ended  in  greater 
evils  than  those  it  was  intended  to  remedy.  The 
power  of  the  Tribune  was  to  give  peace  and  uni- 
ty in  the  Roman  nation.  But  its  authority,  too 
great  to  be  vested  in  any  one  man,  falling  into 
the  hands  of  "  power-lusting  demagogues,"  be- 
came more  tyrannical  and  oppressive  than  the 
edicts  of  the  nobility.  Indeed,  it  contributed 
more  than  any  thing  else  to  produce  that  state  of 
things  which  ended  in  the  ruin  of  the  Republic. 
Augustus,  having  already  the  control  of  the  mili- 
tary, and  the  treasury,  procured  the  office  of  Tri- 
bune to  be  conferred  on  himself,  and  thus  assum- 
ing the  popular  name  and  the  veto  power  of  that 
office  secured  to  himself  the  whole  force  and  en- 
gy  of  the  government  under  a  republican  name. — 
He  learned  and  practiced  the  art  of  disguising  ty-  , 
ranny  under  constitutional  forms.  And  thus  it ' 
was,  that  he  was  able  to  check,  control,  counter- 
act and  degrade  every  other  legitimate  authority, 
until  he  became  an  absolute  tyrant,  exercising 
uncontrolled  and  despotic  power.  The  liberties 
of  Rome  fell  an  easy  prey  to  his  ambition. — 
The  constitutional  Assembly  of  France  in  re-or- 
ganising their  government  in  1789,  conferred  the 
veto  power  upon  the  King.  But  its  first  exercise 
cost  Louis  XVI  his  life — and  though  the  power 
is  still  possessed,  it  has  never  since  been  exerci- 
sed. The  same  power  contributed  greatly  to  the 
destruction  of  the  Polish  republic.  Each  mem- 
ber of  its  Diet,  possessed  an  absolute  negative 
upon  its  decrees.  The  Emperor  of  Russia  avail- 
ing himself  of  this  feature  in  their  government, 
threw  into  that  body  his  emissaries,  who  in  the 
distracted  state  of  that  country,  prevented  all  effec- 
tive legislation,  and  thus  brought  upon  that 
noble  people  their  misfortunes,  which  ended 
in  the  dismemberment  of  their  country.  In 
Norway,  too,  the  King  possesses  a  qualified 
negative,  but  if  three  successive  Diets  pass  a  law 
by  a  majority,  the  royal  veto  becomes  inoperative. 
It  was  thus  that  their  nobility  was  abolished  some 
twenty  years  since,  notwithstanding  the  efforts  of 
the  King  to  prevent  it.  It  was  this  power  to 
overcome  the  royal  veto,  which  had,  he  believed, 
saved  that  country  from  a  revolution,  for  there 
was  not  a  constitutional  government  in  Europe 
where  the  people  would  tolerate  an  arbitrary  ex- 


ercise of  this  prerogative.  No  one  would  be 
found  at  this  day  who  would  advocate  the  doc- 
trine of  investing  the  Governor  with  power  to 
thwart  the  direct  and  expressed  will  of  the  peo- 
ple ;  and  yet  this  is  the  effect  of  the  provision 
which,  in  committee  of  the  whole,  has  been  in- 
serted in  the  Constitution.  It  enables  the  Gover- 
nor to  say,  "  this  may  be  the  will  of  the  people 
but  it  is  not  my  will — and  mine  must  prevail.' ' 
Such  a  provision  assumes  that  a  majority  of  both 
branches  of  the  Legislature,  assembling  from 
every  part  of  the  State,  coming  fresh  from  the 
people,  representing  the  diversified  interests  of 
the  various  localities  of  the  State,  would  wilfully 
persevere  in  the  passage  of  a  law  fatal  to  the  pub- 
lic interests.  To  guard  against  a  contingency  so- 
improbable,  it  is  proposed  to  give  to  a  single  in- 
dividual a  power,  the  obstinate  or  capricious  ex- 
ercise of  which  will  enable  him  at  all  times  to 
defeat  the  popular  will.  Such  power  he  admitted 
had  not  often  been  abused,  nor  did  he  apprehend 
consequences  so  fatal  from  its  abuse  as  had  attend- 
ed it  in  other  countries,  yet  the  fact  that  it  had  been 
the  instrument  of  abuse,  furnished  a  sound  reason 
why  it  should  be  restricted.  The  question  involved 
a  great  fundamental  principle,  whether  the  will  of 
a  majority  should  govern  :  whether  the  people 
by  their  own  chosen  representatives,  possessing 
an  intimate  acquaintance  with  their  varied  views, 
interests  and  sentiments,  should  be  permitted  to 
determine  what  was  their  will  and  to  execute  it. 
Could  there  be  any  danger  in  assuming  that  a 
majority  of  the  representatives  in  each  branch  of 
the  Legislature,  would  express  and  maintain  the 
popular  will,  with  the  certainty  that  if  they  erred 
a  succeeding  Legislature  would  correct  their  er- 
ror ?  Had  any  one  heard  of  any  evils  resulting 
from  the  want  of  this  power  in  those  States  where 
it  does  not  exist  ?  The  provision  was  founded 
upon  the  assumption  that  a  majority  of  a  Legisla- 
ture, who  may  be  supposed  to  be  the  best  judges 
of  what  is  conducive  to  the  public  good  will  de- 
liberately persist  in  passing  a  law  against  the  pub- 
lic interests — and  for  that  reason  it  is  proposed  to 
interpose  this  attribute  of  monarchy  bel  ween  the 
people  and  their  own  representatives.  It  had 
been  said  that  the  Governor  could  have  no  induce- 
ment to  defeat  the  will  or  oppose  the  interests  of 
the  people.  But  this  argument  proved  quite  too 
much — for  if  the  Governor  could  have  no  such 
inducement  might  not  the  same  be  asserted,  with 
at  least  equal  force  of  eighty-two  members  of  the 
Legislature  constituting  a  majority.  The  Gov- 
ernor is  not  always  above  the  influences  of  party 
zeal,  more  than  others.  Is  it  safe,  he  would  ask, 
to  confer  upon  him  this  high  power  by  which, 
when  even  a  state  of  things  should  arise,  which 
rendered  it  necessary,  in  order  to  subserve  his 
purposes,  he  could  always  prevent  the  pas- 
sage of  a  law  however  loudly  called  for,  and 
however  salutary  in  its  provisions  ?  Is  there 
not  danger  that  when  it  shall  happen  that  the 
Legislature  is  opposed  to  the  Governor,  he  may 
avail  himself,  as  did  John  Tyler,  of  his  constitu- 
tional power,  to  defeat  the  will  of  the  people. — 
In  England,  though  the  veto  power  is  a  royai 
prerogative,  it  has  not  been  exercised  for  more 
than  one  hundred  and  fifty  years,  and  yet  in 
democratic  America  the  emphatic  decision  of 
the  people  has  been  intercepted  by  the  arbi- 


363 


trary    will,  of  one  wan— and   that  too,  a  nun  th'- 

feople  never  intended  should  exercise  that  office, 
nstead  of  huilding  up  a  '-one  man  power,"  he 
desired  to  see  our  government  firmly  established 
upon  democratic  principles.  The  Governor  should 
be  allowed  to  return  to  the  Legislature  bills, 
which  in  his  judgment  were  unconstitutional  or 
which  had  been  nastily  or  unadvisedly  passed; 
but  if  alter  a  review  and  reconsideration  a  major- 
ity of  each  branch  of  the  Legislature  should  see 


(Mr.  CHATFIELD).  He  did  not  believe  it  would 
prove  to  be  any  check  upon  improvident  uncon- 
stitutional legislation.  He  instanced  a  recent  case 
in  Connecticut — where  a  railroad  company  had 
its  stock  owned  chiefly  out  of  that  State,  and  be- 
seiged  the  legislature  for  power  to  bridge  the 
Connecticut  river.  The  Governor  deemed  it  both 
unconstitutional  and  inexpedient,  as  destructive 
of  the  rights  and  interests  of  citizens  above  the 
bridge  and  therefore  he  vetoed  it.  But  the  same 


fat  to  re-enact    the  bill,  it   should  become  a  law,   majority  which  passed  the  bill,under  the  influence 

•.,  i-  ..  ..  • _!_'     ^.: "T^U.,-       _  r  •     : ! i i *     —     l~i_l i 


notwithstanding  the  executive  objection.  Thus 
he  would  vest  in  the  Governor  a  supervisory 
power  merely,  and  not  clothe  him  with  authority 
"to  save  the  people  from  themselves."  Such  a 
provision  in  the  Constitution,  would  be  a  check 
of  sufficient  energy  to  control  the  evils  resulting 
from  hasty  or  inconsiderate  legislation  and  would 
effectually  call  back  the  attention  of  the  Legis- 
lature to  any  error  they  might  have  committed. — 
But  if.  after  the  Executive  had  expressed  to  the 
Legislature  his  opinions  as  to  the  unconsiitution 
aliiy  or  inexpediency  of  the  law,  a  majority  of 
all  elected,  should  still  be  in  its  tavor,  they  should 
be  permitted  to  take  the  responsibility  of  passing 
it  and  stand  upon  the  measure  before  their  com- 
mon constituency.  There  could  be  no  s^fer  rule 


to  adopt    than  to 
in  the  hands  of  a 


vest  the  power  of  Legislation 
majority  of  the  people's  repre- 


of  injurious  overwhelming  lobby  members,  re- 
passed  the  bill  and  it  was  soon  a  law.  And  the 
result  was  seen  in  threats  of  mob-violence,  and 
great  local  excitement — and  the  probability  was 
that  no  bridge  could  be  built  there,  or  if  built, 
that  it  would  be  torn  down.  This  was  the  result 
of  the  majority  principle.  He  would  have  a  veto, 
if  any,  that  should  be  effectual,  leaving  the  Gov- 
ernor responsible  to  the  people  for  his  acts — and 
there  could  be  no  doubt  that  if  he  exercised  tho 
power  corruptly  or  improperly,  the  people  would 
correct  the  error  the  very  first  moment  they  had 


the  chance. 
The   PRESIDENT 


presented  a  communica- 


sentatives.  He  hoped  therefore  that  instead  of 
enlarging  executive  power  over  the  Legislature,  it 
would  be  leduced  within  proper  limits. 

Mr.  CAMBRELENG  remarked,  that  it  was 
wholly  immaterial  which  of  these  two  amend- 
ments were  adopted — as  a  majority  of  all  elected, 
would  practically  be  as  effective  as  two-thirds  ol 
all  eiecied.  He  should  probably  vote  with  the 
gentleman  from  Albany  (Mr.  HARRIS,)  and  he 
only  rose  to  correct  a  fundamental  error;  and  to 
show  how  completely  that  gentleman's  arguments 
were  at  variance  with  his  position.  The  object  of 
the  veto  power  in  all  governments  is  this.  It  is 
a  check  on  absolute  power.  Supreme  legislative 
power  was  vested  by  the  constitution  in  the 
hands  of  the  legislature.  There  was  limitation 
to  this.  But  where  is  the  check  !  in  the  veto  de- 
signated for  the  protec;ion  of  the  people  against 
the  abuse  ot  that  power;  and  it  would  be  strange 
indeed,  if,  after  fhe  experience  of  severity  years, 
this  safeguard  against  the  encroachments  of  abso- 
lute power,  were  now  to  be  discharged  entirely, 
or  robbed  of  its  vitality.  It  was  an  old  maxim, 
that  in  Republics,  the  legislature  was  the  tyrant; 
and  it  was  only  on  that  ground  that  the  veto 
could  be  defended.  The  veto  power  is  a  check 
on  that  tyrant.  The  British  constitution  is 
just  what  parliament  pleases,  says  Blackstone ; 
and  your  constitution  is  just  what  your  Legisla- 
tnre  pleases,  without  this  check.  It  was  one  of  the 
greatest  popular  safeguards  in  our  constitution 
and  in  his  judgment  its  results  had  been  benefi 
cial.  In  Rome  and  in  Poland,  and  in  every 
instance  which  had  been  cited,  it  was  designed  as 
a  check  on  absolute  powei.  It  was  on  tha 
ground  that  he  voted  for  it,  with  the  atnendmfen 
of  'he  gentleman  from  Otsego — which  he  though 
full  as  strong  as  that  of  the  gentleman  from  On 
tario. 

Mr.  W.  TAYLOR  said  that  he  was  opposed  to 
the  amendment  of  the  gentleman  from   Otsego 


tion  from  the  Convention  of  the  city  of  New  York 
relative  to  judicial  officers  in  the  city.  Referred 
to  the  judiciary  committee. 

The  Convention  then  adjourned  until  4  o'clock 
this  afternoon. 

AFTERNOON  SESSION. 

The  PRESIDENT  said  that  the  llth  section 
was  under  consideration. 

It  was  read : 

Mr.  SIMMONS  said  that  he  wished  to  say  a 
ew  words  as  to  a  majority  instead  of  two-thirds 
if  the  legislature  over-ruling  the  veto  of  the  Gov- 
ernor. 

The  PRESIDENT  said  that  was  not  the  prop- 
>sition. 

Mr.  SIMMONS  took  his  seat. 

Mr.  HARRIS  moved  as  an  amendment  to  Mr. 
NICHOLAS'S  amendment,  that  a  mere  majority  of 
the  legislature  shall  have  power  to  re-pass  a  veto- 
ed bill. 

Mr.  SIMMONS  said  the  Constitution  was  a  law 
superior  to  all  others;  and  all  inferior  laws  were 
subordinate  to  it.  We  had  divided  the  govern- 
ment into  three  distinct  branches — the  Legisla- 
tive, Executive,  and  Judicial — and  no  one  branch 
could  override  the  other,  but  all  should  co-op- 
erate. He  agreed  with  Gen.  JACKSON,  who  said 
that  the  Executive  was  not  permitted  to  put  a 
Law  in  force,  unless  he  believed  it  to  be  in  con- 
formity with  the  superior  law  which  he  was 
sworn  to  execute.  We  had  placed  the  whole 
Executive  power  in  the  hands  of  one  man,  in  or- 
der to  secure  fidelity,  secrecy  and  despatch  in  the 
administration  of  the  laws.  He  stands  alone  in 
his  power,  though  acting  in  accordance  with 
Legislation,  in  enforcing  the  laws.  To  say  that 
he  should  have  power  to  refuse  to  allow  the  pas- 
sage of  a  law  whenever  he  chooses  to  oppose  it, 
would  be  to  say  that  one  branch  shall  have  power 
to  overthrow  the  other.  He  was  not  yet  willing  to 
give  the  Governor  the  right  to  a  completely 
absolute  and  unqualified  veto.  But  yet  he 
should  be  willing  to  give  tbe  Governor  an 
unqualified  veto,  if  things  are  to  work  a* 


364 


we  have  seen  them  work  in  Connecticut,  where 
two-thirds  can  be  found  to  force  a  law  through 
even  against  the*opinion  of  the  Governor,  that  it 

a'  unconstitutional;  and  the  dilemma  that  he  is 
aced  in  is,  that  he  is  thus  compelled  to  enforce 
the  execution  of  a  law  which  he  has  declared 
to  be  unconstitutional;  and  he  would  give  the 
Governor  therefore  an  unqualified  veto  always  on 
the  ground  of  constitutionality.  He  wanted  the 
Governor's  veto  to  protect  the  minority  against 
the  encroachments  of  the  majority.  He  would 
not  let  a  mere  majority  override  the  Governor's 
veto  on  the  mere  ground  of  expediency  alone — 
He  did  not  want  the  one-man  power  to  overshad- 
ow the  community.  The  Convention  have  the 
power  to  separate  the  question  of  constitutionali- 
ty from  that  of  mere  expediency.  He  wished  lo 
have  this  done.  The  Judiciary  have  power  over 
laws  which  are  unconstitutional,  and  when  laws 
of  this  character  come  before  them,  they  say  noth- 
ing about  iheir  expediency.  If  it  could  be  sup- 
posed that  two-thirds  of  the  Legislature  ever 
would  pass  a  law  which  was  unconstitutional,  he 
would  give  the  Governor  the  power  of  absolute 
veto;  but  he  did  not  suppose  they  would  ever  do 
this.  As  regards  the  veto  upon  the  mere  grounds 
of  expediency,  he  was  willing  to  retain  this  fea- 
ture provided  that  one  of  two  things  should  occur 
here,  which  there  was  some  prospect  would  take 
place  One  sine  qua  non  was  the  division  of 
the  State  into  single  Senate  districts  By  electing 
members  of  both  branches  of  the  legislature  by 
single  districts,  the  people  would  be  more  direct- 
ly represented.  While  he  was  willing  that  the 
maiority  should  govern,  he  still  desired  that  the 
minority  should  have  a  chance  to  be  heard.  In  a 
matter  coming  before  us  for  our  individual  decis- 
ion we  like  to  hear  both  sides;  although  the  de- 
cision will  be  but  one  way,  that  decision  will  be 
materially  assisted  by  hearing  both  sides  of  the 
question.  So,  in  the  single  distnct  system,  the 
rights  of  the  minority  would  be  more  directly 
represented,  and  they  would  have  an  oppuituni- 
ty  to  be  heard;  while  in  the  system  of  electing  by 
a  sweeping  ticket,  either  in  assembly  or  senate, 
one  side  has  the  advantage  over  the  other.  It 
single  districts  can  be  secured  in  both  branches  ot 
the  Legislature  by  the  Convention,  there  will  be 
one  great  safeguard  for  the  protection  of  the  rights 
of  the  minority,  and  we  might  more  safely  give 
the  Governor  the  power  to  veto  bills,  and  give 
the  Legislature  the  power  to  set  it  aside  by  a 
maiotity  vote.  He  wished  to  protect  the  minori- 
ty against  the  encioachments  of  the  majority; 
but  if  this  protection  cannot  be  secured,  he  be- 
lieved the  veto  power  had  better  remain  where  it  is 
He  wished  now  to  allude  to  the  Constitution  as 
it  existed  prior  to  and  down  to  1821 .  It  was  then 
required  that  three  departments  should  concur  at 
the  same  time  in  the  passage  of  all  laws,  under 
he  form  of  a  Council  ot  Revision.  Thus  laws 
nassed  by  the  Legislature  were  submitted  to  their 
examination,  and  received  their  sanction  before 
they  were  allowed  to  go  into  operation.  This 
proved  a  safeguard  in  some  respects,  but  in 
others  it  got  to  be  very  injurious  in  some  oi  its 
workings.  We  now  give  the  judiciary  the  power 
to  annul  every  law  which  is  passed  and  is  regarded 
as  unconstitutional  ;  and  the  Convention  had  bet- 
tor pause  before  it  declared  that  the  Executive 


should  have  no  voice  against  the  passage  of  laws 
which  may  lay  the  axe  at  the  root  of  ail  Execu- 
tive power.  Was  all  the  learning  ot  antiquity, 
all  the  learning  to  be  found  in  writings  upon 
constitutional  law  for  the  last  half  centuryvmere 
idle  talk,  or  to  be  set  aside  as  the  mere  imitation 
of  European  stuff?  and  are  we  to  assume  that  we 
are  the  ones  with  whom  all  wisdom  is  to  die? 
Are  we  to  set  ourselves  up  as  the  only  patterns  of 
learning?  He  thought  gentlemen  had  better 
pause  before  they  consented  to  place  the  whole 
Executive  power  in  the  hands  of  the  Legislature. 
They  had  come  very  near  it,  on  Saturday,  as  re. 
gards  one  branch  of  that  power,  that  of  pardon. 
It  would  never  do  to  adopt  an  amendent  which 
would  place  the  Executive  in  the  power  of  the 
Legislature,  and  if  gentlemen  would  go  with  him 
in  making  the  Legislature  elective  by  single  dis- 
tricts, and  in  arming  rhe  Executive  against  the 
encroachments  of  the  other  branch  of  the  govern- 
ment, he  would  go  with  them  in  giving  the  Go. 
vernor  the  power  to  exercise  the  veto  in  questions 
of  expediency.  He  would  not  give  the  Legisla- 
ture the  power  to  pass  a  law  and  make  the  Go- 
vernor go  to  work  and  execute  that  law  to  cut  his 
own  throat  ?  (Laughter.)  A  jury  could  always 
understand  questions  of  fact  much  better  than  the 
court,  as  the  court  could  always  understand  the 
law  better  than  the  jury.  Therefore  he  should 
vote  to  restore  this  power  as  it  was  in  the  old 
Constitution. 

Mr.  PATTERSON  regarded  this  as  a  simple 
question,  and  one  which  came  home  to  every 
member.  It  was  whether  we  should  give  to  the 
Governor  the  power  to  veto  a  bill  which  should 
not  receive  a  vote  of  two-thirds  of  those  present 
in  both  branches  of  the  Legislature,  or  whether  a 
majority  of  the  whole  number  elected  should  set 
aside  the  veto.  He  would  not  have  spoken  on 
this,  but  for  a  great  error  committed  by  his  friend 
before  him.  The  gentlemen  from  Essex  (Mr. 
SIMMONS)  he  believed  was  in  error  in  one  res- 
pect. He  proposes  to  make  one  man  here  equal 
to  128  representatives  directly  from  the  people, 
so  far  as  law  making  is  concerned.  He  had  read 
an  amendment  which  he  was  about  to  propose, 
which  provides  that  when  the  Governor  shall  ve- 
to a  bill  as  unconstitutional,  which  has  been  pass- 
ed by  a  majority  of  all  elected  in  both  branches, 
it  should  be  returned,  and  if  passed  again  by  two- 
thirds  it  should  become  a  law.  The  gentleman 
from  Essex  was  a  lawyer,  and  he  asked  him  as  a 
lawyer,  if  a  law  which  was  unconstitutional 
should  be  passed  by  two-thirds;  would  it  become 
as  binding  as  if  constitutional  ? 

Mr.  SIMMONS— It  would,  until  it  was  de- 
clared unconstitutional. 

Mr.  PATTERSON — Yes,  and  it  would  be  so 
declared  very  soon.  The  gentleman  proposes  to 
make  the  legislative  branch  of  the  government 
subservient  to  the  Executive— to  shut  down  the 
gate  upon  legislation  except  by  consent  of  one 
man.  He  (Mr.  P.)  was  opposed  to  the  one  man 
power  to  that  extent.  He  (Mr.  S.,)  wished  to 
make  one  man  equal  to  128  representatives  of  the 
people.  On  Saturday,  he  (Mr.  P.)  had  given  his 
views  of  the  veto  power,  and  had  allowed  that  it 
was  wise  and  expedient  to  allow  the  Governor  to 
return  a  bill  with  his  objections,  and  then  that  a 
majority  of  the  representatives  of  the  people 


365 


should  have  the  power  to  pass  the  bill.  He  was 
willing  to  let  a  majority  of  the  people's  repre- 
sentatives pass  a  bill  notwithstanding  the  veto  of 
the  Governor.  It  was  never  intended  by  the  peo- 
ple to  give  the  Governor  this  great  law-making 
power.  In  Ohio  and  in  other  States,  the  Gover- 
nor had  no  veto  power  at  all.  In  no  State,  ex 
cept  in  Louisiana,  was  the  veto  exercised  to  such 
an  extent  as  was  proposed  by  the  gentleman 
from  Essex.  He  (Mr.  P.)  would  have  the  majo- 
rity rule,  as  well  among  the  people's  representa- 
tives as  among  the  people  themselves.  As  he 
had  stated  on  Saturday,  there  was  a  difference  be- 
tween two-thirds  of  those  present,  and  a  majority 
of  all  elected,  decidedly  in  favor  of  the  latter. — 
He  therefore  preferred  the  majority  principle,, 
and  should  vote  for  that  if  allowed  an  opportuni- 
ty. The  gentleman  from  Essex  (Mr.  SIMMONS) 
says  he  would  allow  two-thirds  of  those  present 
to  pass  a  bill  that  had  been  vetoed.  Now,  two- 
thirds  of  those  present  may  be  any  number  be- 
tween 44  and  86.  He  was  not  in  favor  of  the 
passage  of  unconstitutional  laws,  and  if  one  should 
be  passed  and  returned,  it  should  not  be  made  a 
law  by  two-thirds,  but  should  never  be  heard 
of  again  ;  as  was  the  case  with  the  one  returned 
by  Governor  Marcy,  to  which  he  alluded  on  Sa- 
turday. 

Mr.  HOFFMAN  said  :  This  subject  was  so  ful- 
ly debated  and  so  perfectly  exhausted  in  1821, 
that  I  have  not  heretofore  had  courage  to  attempt 
any  thing  like  a  discussion  of  it.  I  have  not 
now  been  able  to  bring  myself  to  any  thing  like 
a  review  of  its  extended  merits,  but  there  are 
some  things  in  relation  to  it,  to  which  I  beg  leave 
to  call  the  attention  of  the  Convention.  What  is 
this  veto  power?  In  the  first  place  it  is  purely 
negative,  and  in  no  degree  affirmative.  Gentle- 
men talk  about  the  one  man  power,  as  if  that  pow- 
er could  do  something,  could  originate  a  measure, 
and  could  carry  it.  And  they  object  to  the  one 
man  power  upon  this  very  broad  principle.  Now 
sir,  there  is  nothing  of  that  kind  in  the  veto  pow- 
er. It  is  a  perfectly  negative  power— a  power  to 
hinder  some  proposed  measure  from  being  carried 
into  effect — to  retain  things  in  the  state  in  which 
they  are— a  state  that  society  has  tried,  knows 
the  value  of  and  can  judge  of  thoroughly.  If  you 
should  propose  to  confer  a  one  man  power  of  an 
affimative  character — a  power  to  make  a  law  or 
to  suspend  one — to  appropriate  money — and  a 
power  to  affect  the  rights  of  labor  and  property 
— I  apprehend  it  would  find  no  advocates  here 
or  elsewhere,  in  this  State.  It  is  of  such  a  pow- 
er I  have  understood  gentleman  to  speak  in  ob- 
jecting to  the  one  man  power,  but  I  believe  that 
to  be  a  thing  not  brought  in  here,  and  not  in  agi- 
tation. Again,  what  is  this  veto  power  practical- 
ly, really,  and  when  it  is  exerted.  Is  it  a  power 
to  restrain  the  rights  of  the  people  ?  No  sir.  Is 
it  a  power  to  prevent  the  exercise  of  the  sober 
judgment  of  a  majority  of  the  people  ?  No,  sir  ; 
no  such  thing.  What  is  it,  then  ?  Why, 
practically,  it  has  been,  in  every  instance  that 
can  be  named,  as  it  has  been  exercised  for  more 
than  half  a  century  in  the  State  and  Union,  a 
power  in  direct  vindication  of  the  rights  of  the 
masses,  indirect  support  of  public  liberty,  and  of 
individual  rights,  and  against  monopoly,  against 
expenditure,  and  profligacy.  This  is  whatlt  has 


been,  practically,  and  what  it  is  in  its  nature  ;  and 
this  is  the  reason  why  it  has  been  popular,  ar  *. 
why  the  masses  have  stood  by  it.  This  is  the  rea- 
son why  the  late  President  of  the  U.  States  was 
supposed  to  have  used  it — because  it  had  been 
found  to  be  popular.  A  power  like  this,  exerted 
for  these  purposes,  ever  has  been,  and  ever  will  be, 
popular,  so  long  as  men  have  sense  and  discretion 
enough  to  know  their  own  rights,  and  to  avow 
them.  Is  this  not  practically  true  of  every  veto 
that  has  been  put  forth  in  the  government  of  the 
UnitedStates,whether  upon  constitutional  grounds 
or  upon  grounds  of  expediency?  Gentlemen  have 
said  here,  and  I  have  heard  them,  say  so  else- 
where, that  they  supposed  that  it  was  the  great 
popularity  of  Gen.  Jackson  that  rendered  the 
veto  popular.  A  perfect  subversion  of  all  truth 
and  all  logic.  It  was  because  the  veto  stood  by 
the  rights  of  the  masses,  against  monopoly,  pro- 
fligacy, expenditure,  and  debt,  that  it  was  popu- 
lar, and  the  popularity  of  the  officer  using  it  was 
increased.  I  occupied  the  humble  condition  of  a 
member  of  Congress,  when  some  of  these  vetoes 
were  put  forth,  and  I  had  an  opportunity  of  see- 
ing what  was  done,  and  of  knowing  what  was  in- 
tended. When  the  veto  on  the  Maysville  Road 
Bill  was  called  forth  from  the  Executive  Cham- 
ber, what  was  going  on  ?  Day  after  day,  and 
week  after  week,  the  committee  on  internal  im- 
provements, as  if  installed  monarch,  was  coming 
into  the  house  with  new  schemes,  and  projected 
surveys,  one  after  the  other.  Estimates  were 
piled  one  upon  another,  until  not  even  an  hun- 
dred millions  would  satisfy  the  estimates  alone, 
and  estimates  there,  fall  as  short  of  the  real  ex- 
penditure, as  they  do  here — never  reaching  one- 
half  of  it.  Sir,  this  was  seen  in  that  House  of 
Representatives — it  was  seen  by  the  constituent 
body  throughout  the  Union,  and  when  the  veto 
came,  it  was  understood  as  the  strong  arm,  and  as 
the  voice  of  the  multitude  themselves,  in  vindi- 
cation of  their  rights  and  property.  It  was  seen 
and  known  of  all  men,  that  if  this  vast  system 
of  internal  improvements,  spreading  itself  over 
the  whole  Union,  with  an  army  of  surveyors  and 
engineers,  the  one  bill  here  and  another  there, 
offering  the  largest  rewards  to  localities,  giving 
the  whole  public  treasury  over  to^the  rapacity  of 
particular  places  and  districts — it  was  seen  and 
understood,  sir,  that  a  government  armed  with  the 
strong  power  of  universal  and  unlimited  taxation, 
direct  and  indirect — would  be  able  by  its  strong 
arm  to  draw  the  wealth  and  property  of  every 
citizen  into  the  treasury — and  that  to  go  on  in 
that  career  of  internal  improvement,  the  rights 
of  property  would  be  swept  away,  and  the  gov- 
ernment itself  become  the  grand  pensioner,  the 
purchaser  of  votes  and  support  in  every  quarter. 
Yes,  sir  ;  when  that  veto  appeared  in  the  House 
of  Representatives,  and  the  country  saw  it,  they 
saw  it  was  brought  in  to  meet  all  these  formida'- 
ble  evils,  and  dangers.  And  it  did  meet  them, 
and  scatter  them.  What  danger  is  there  then  in  the 
one-man  power?  What  did  it  do  on  that 
occasion  ?  Why  sir,  if  that  splendid  scheme 
i)f  internal  improvement  had  gone  on,  with 
its  one  or  two  hundred  millions  of  expendi- 
ture, it  was  the  very  man  who  vetoed  the 
measure,  that  would,if  he  had  permitted  it  tofpass, 
have  appointed  the  Engineers,  the  Surveyois,  tha 


366 


Commissioners,  and  the   countless   thousands  of 
agents  to  execute  it.     He  might,  if  he  had  let  leg- 
islation   have  taken  its  course,  secured  patronage 
without  measure.     He  might  have  installed  hun- 
selt  King,  if  patronage  could  make  a  man  King*.— 
He  would  have  gained  a  host  of  friends  and  depen. 
dents,  compared  to  which,  the  Custom-house,  the 
light.house,   the   piers  and  harbor-rnen,  anp^  the 
post-masters,   would    have  been  an    insignificant 
corporal's  guard.     Yes   sir,  the  one-rnan  power, 
holding  the   Veto   for   the  people  of  the  United 
Statesfand  not  for  localities!,   not  for  patronage — 
the   one-man    power  standing  there,  like  the  tri- 
bunitian   power  of  the  Roman    people,   scattered 
and  dissipated  all  those  splendid  schemes  of  inter- 
nal improvements,  but  of  real  debt,  enormous  pat- 
ronage, and  of  overshadowing  government.     That 
is  what  the  one-man   power  did,   when  entrusted 
with  this  Veto  power.     Sir,  do   we  effect   to   be 
alarmed  at   the  exercise  of  this   power,  when  we 
see  that  it  is  the  only  power  ever  exerted  in  this 
government,    that    has    had  the   moral   courage 
to  protect  the  rights  of  the  masses,  and  the  virtue 
to  deny  the  splendid  offers  of  empire  in  the  shape 
of  patronage  and  influence — and  to  abide  and  stand 
by  the  Constitution  and  private  right?     When  or 
where  in  all  these  numerous  governments  has  leg- 
islation resisted    in  this   manner,  where  it   could 
have  grasped  as  the  Executive  power  of  the  Uni- 
ted States  could  have  done,  this  immense  patron 
age — this  disbursing  and  collecting  of  millions. — 
If  there  was  any  place   where  we   could   trust  a 
power  to  defend  the   rights  of   the  multitude,   of 
the  million,  of  the  masses,  against  the  encroach- 
ments of  delegated   power — if  we  are   to  be  gui- 
ded by  example  in  our  own — and  other  countries, 
I  submit    it  is  when  you  give  it  in    irs  nega'ive 
form  to  a  single  man,   who   must  stand  or  fall  on 
the  merits  of  the  measure,   and  who  can  divide 
no  responsibility  with  one  hundred    Aye,  there  is 
the  rub.     A  moral  responsibility  cut  up  into  one 
or  two  hundred  fractions,  has  through  experience 
in  our  own  and  other  countries,  been  found  to  be 
a  falsehood.     But  here,   in   the  exercise  of  this 
clear  negative  power   the   executive  stands  upon 
a  responsibility  that  is  undivided.     He  is  obliged 
to  select  tenable  grounds  for   his  veto,  and  rea- 
sons obvious  and  applicable  in   their  nature,  so 
that  all  men  who  run   may   read  and  understand 
them.     Well,  sir,  I  ask  has  the  veto  power  done 
any  mischief  in   this   State  ?     I  submit  the  ques- 
tion to  the   Convention — has  the  veto  done  any 
mischief  in    this    State?     Has  it  despoiled  the 
widow  or  the  orphan — has  it  taxed  the  poor — has 
it  enfeebled  the  energies  of  society,  or  endanger- 
ed the  security  of  property  or   of  labor  ?     While 
it  has  been  in  force  in  our  Constitution  for  a  half 
or  three-quarters  of  a  century ,has  it  done  you  any 
mischief— you,  or  your  father,  or  your  children  ? 


No,  sir,  you 


cannot  answer   that  it    has.     You 


may  not  approve  of  its  exercise  in  all  cases,  but 
can  you  lay  your  hand  on  any  robbery  of  proper- 
ty, any  fraud  it  has  committed— on  any  popularity 
that  it  has  sought  to  purchase — or  any  locality  that 
it  has  attempted  to  reward,  or  any  attempt  to 
pension  dependents  or  to  reward  followers  ?— 
When  exercised,  has  it  not  in  the  main  stood 
by  the  rights  of  the  masses?  Sir,  it  has 
stood  by  the  character  of  the  State.  Two 
sessions  since,  and  a  majority— a  majority  of  a 


quorum,  perhaps — of  the  two  houses  united,  sup- 
posed  that  there  were  surplus   canal   funds  on 
hand,  and  that  the  public  interests  required  their 
appropriation  for  works  of  internal  improvement. 
They  passed  the  bill  to  that  effect.  I  say  they  be- 
lieved that  there  was  a  surplus,  and  therefore  they 
felt  anxious  to  apply  them.     The  employment  of 
them  might  have  done  good,  but  whether  it  would 
have  done   good  or  not,  it  might  have  pensioned 
dependents,  rewarded   followers,   or   purchased 
popularity,  as  I  am  afraid  it  has  too  often  times 
done   in  this  and   every  other  government.     The 
executive  of  the  State  believing  that  the  faith  of 
the  State  required  him  to  do  so,  vetoed  the  bill — 
and  in  this  Convention,  sitting  here,  it  is  proposed 
to  take  from  him  the  power   to  defend  the  faith 
and  credit  of  the   State.     Suppose   it  had  been 
taken  away  then,  what  would  have  been  the  con- 
sequences !     Sir,  since  you  have  been  sitting  here 
— since  this  Convention  has  been  installed,  a  por- 
tion of  the  public  debt  has  become  due — interest 
and  principal,  I  think,  amounting  to  about  $800,- 
000.     If  that  favorite  bill  of  the  majority  of  that 
house  had  passed,  no  set  of  men  upon  earth  would 
have  had  more  occasion  to  regret  it  than  them- 
selves, except  it  might  be  the   members   of  this 
Convention.  For  if  that  bill  had  passed,  notwith- 
standing the  great  influx  of  tolls,  in  the  last  Au- 
tumn and  Spring,  through  apprehended  dangers  in 
the  Gulf  on  the  one  side,  and  in  Canada  and  else- 
where, on  the  other,  most  inevitably  must  our  gov- 
ernment have  gone  down  into  the  market  and  adop- 
ted the  expedient,  shameful  and  disgraceful  as  it 
is,  of  borrowing  more  than  $200,000  in  addition 
to  the  tolls  on  hand,  to  have  sustained  the  credit 
of  the  State,  and  to  have  saved  you  from   practi- 
cal repudiation  for  the  hour.       Sir,  was  it  a  mis- 
fortune for  this  Convention  that  this  disgrace  did 
not  overtake  the  State,  while  we  are  sitting  here 
to  deliberate  upon  public  affairs  ?  Certainly  not. 
Could  any  misfortune  have  been  greater?  I  think 
not,  and  this  veto,  let  me  say  to  the   gentleman 
from  Essex,   (Mr.  SIMMONS)  was  not  upon  strict 
Constitutional  principles,  but  upon  principles  as 
just,  as  high,  and  as  holy  as  any  other  can  be — 
the  preservation  of  the  public  faith — in  which  I 
know    he    agrees    with  me.       Yes,  if  that  bill 
making  those   apportionments  had   passed,   and 
;hose  funds  had  gone  from  our  hands,   notwith- 
standing all  the  tolls  that  had  came  in  during  the 
[ast  autumn  and  spring — notwithstanding  they 
were  gathered  up  as  they  were  on  that  occasion — 
as  clean  as  possible,  bringing  down  the  gathering 
to  the  22d  of  June  to  be  used  on  the  1st  of  July, 
you  must  have  gone   into   the  market  to  borrow 
money  upon  interest,  to  pay  interest  upon  money 
borrowed.     And  I  appeal  to  the  house,  and  to  the 
country,if  there  could  be  any  thing  more  disgrace- 
ful ?     Whether  in  this  government,  or   in  that  of 
the  United  States,   this  clear  negative  power  has 
been   used  entirely  in  the  affirmance   of  private 
right— the  rights  of  equality  and  of  the  masses, 
and    against    monopoly — against    expenditure — 
against    patronage— and    against  pensioning  de- 
pendants     and     rewarding      followers,     ami    in 
favor    of    public   faith  ?     Why   then   should  we 
be  alarmed   at  leaving  it    in    the  Consti'ulion  as 
strong   as   we   found  it?     Why  then  disturb  (his 
part  of   the   Constitution,  and  fritter  away  what 
has  proved  serviceable  here  and  elsewhere?  From 


367 


any  thing  I  can  understand  the  only  reason  is 
that  it  is  supposed  that  the  members  of  the  two 
houses  are  exclusively  the  representatives  of  the 
people.  No  such  ihing!  The  members  of  the 
Senate  at  best  represent  small  districts  only — 
the  house  represented  counties.  It  is  the  Gover- 
nor, and  the  Governor  alone,  in  this  State,  that 
represents  the  entire  people  of  the  State.  And 
whose  judgment  is  it — for  J  speak  of  no  one  man's 
will — no  will  of  the  majority — or  no  will  of  the 
minority — I  ask  whose  judgment  is  it  you  desire 
should  prevail?  The  judgment  of  the  People  of 
the  State,  and  not  of  localities — not  of  districts — 
not  of  counties.  That  is  what  you  desire — that 
is  what  all  men  desire — and  that  is  what  so- 
ciety demands.  Who  then  will  be  most  likely  to 
represent  that  judgment  ?  Is  not  the  Governor  as 
responsible  to  the  whole  people,  as  a  member 
of  Assembly  is  to  the  people  of  his  county  ? — 
Is  not  the  governor  as  responsible  to  the  whole 
people,  as  a  Senator  to  the  people  of  his  small 
Senate  district  ?  And  is  it  not  an  entire  fallacy 
to  say  as  the  gentleman  on  his  right  (Mr.  HAR- 
RIS) did  the  other  day,  by  implication,  that  the 
governor  is  not  a  representative  of  the  whole 
people — and  that  it  was  only  the  members  of  the 
Senate  and  Assembly,  who  represented  the  whole 
people  ?  No  such  thing,  sir.  And  how  does  the 
governor  represent  the  people  in  this  matter  ? — 
Not  affirmatively,  or  to  do  for  them.  You  trust 
the  doing,by  the  provisions  of  the  Constitution  in 
in  the  Senate  and  Assembly,  and  you  give  to  the 
governor  a  mere  negative  power  to  prevent  them, 
thro'  hasty  conclusions,  and  indiscretion,  or  from 
folly  and  vice,  from  affecting  the  rights  of  the 
masses.  He  is  emphatically  the  tribune  of  the 
people,  chosen  for  that  very  purpose.  And  the 
dfficulty  and  danger  was  not  that  he  will  exercise 
this  power  too  frequently,  but  that  he  will  not 
exercise  it  sufficiently.  Sir,  I  have  no  unusual 
distrust  of  legislation — no  unusual  confidence  in 
it — no  unusual  distrust  of  the  executive — no  un- 
usual confidence  in  him.  Confidence  in  matters  of 
this  kind,  have  a  slow  growth,  and  in  the  rapid 
mutations  and  changes  of  parties  and  men,  a 
man  must  be  exceedingly  fortunate  who  acquires 
any  great  share  of  it,  to  carry  with  him.  I  have 
no  expectation  that  any  administration  here,  will 
by  its  standing  with  me,  overrule  to  any  great  ex- 
tent, the  judgment  I  may  form  upon  a  measure. 
We  must  therefore  view  the  legislative  power  as 
it  is  developed  by  its  history — take  it  as  it 
has  been,  hope  a  little  for  the  better, 
be  content  when  that  better  comes,  and  if 
evil  comes,  make  ourselves  bold  and  firm  to  re- 
sist it.  Sir,  what  has  been  the  acts  of  assump- 
tion in  all  governments  of  the  world  ?  They 
have  been  alluded  to  in  this  debate,  and  I  may 
state  them  briefly.  Whenever  the  legislative 
power  has  not  been  checked  and  restricted,  each 
and  every  of  its  assumptions,  has  added  new 
strength  to  the  executive  government,  until  le- 
gislation was  swallowed  up  in  the  grave  it  had 
dug  for  itself.  This  is  the  history  of  every  na- 
tion of  antiquity.  It  is  the  history  that  comes  to 
us  from  the  graves  of  nations  recently  buried.— 
Popular  governments  begin  by  instituting  a  sin- 
gle house,  for  in  no  other  way  can  they  clearly 
exist.  The  first  step  in  improvement  is  to  get 
up  a  second  house,  and  giving  it  a  negative  over 


the  other.  This  was  the  commencement  of  ?!* 
representative  governments.  The  gentleman 
from  Albany,  (Mr.  HARRIS,)  had  spoken  of  this 
veto,  this  negative  power  of  the  Executive,  as 
having  been  unwisely  engrafted  upon  the  system 
in  late  years.  This  thing  had  grownup  from  hu- 
man experience,  and  must  have  grown  up  to 
make  free  governments  any  thing.  The  gentle- 
man also  said  that  the  power  existed  in  Rome, 
and  for  a  period  did  very  well.  I  would  add  that 
when  this  power  no  longer  existed,  its  represen- 
tation swallowed  up  the  liberties  of  Rome — and 
taxation  went  into  the  provinces  and  devoured  the 
whole  body  of  the  nation.  And  the  Huns,  Goths 
and  Vandals,  instead  of  conquering  the  Empire, 
found  it  a  mere  shell.  The  Caesars  succeeded  the 
veto  power,  and  the  Empire  was  at  last  sold 
at  auction.  Sir,  this  may  be  the  case  with 
other  ages  and  other  countries  when  the  Veto 
power  shall  be  annihilated.  I  apprehend  it  is 
essential  to  the  being,  and  had  grown  up  with 
the  idea  and  institution  of  free  governments — that 
it  was  necessary  that  there  should  be  these  checks 
and  balances.  Human  experience  had  settled  the 
question,  and  I  therefore  conclude  that  we  should 
establish  in  this  Constitution  a  Veto  power  at 
least  as  strong  as  that  found  in  it.  Sir,  have 
there  been  any  complaints  of  the  exercise  of  the 
Veto  power  in  this  State  ?  No — but  let  me  call 
attention  to  what  has  been  said  of  legislation. 
Sir,  I  ask  members  here  to  recollect  when  a  ses- 
sion adjourns  if  they  had  not  heard  in  the  cities,in 
the  villages,  in  the  hamlets,  and  by  the  men  upon 
the  fields  and  in  the  work  shops — for  I  have  heard 
them  again  and  again — thank  God  that  the  legis- 
lature had  adjourned  without  doing  more  mis- 
chief. And  I  appeal  to  every  member  here  if  he 
has  not  heard  the  expression  again  and  again  from 
the  constituent  body.  I  have  heard  it  repeatedly, 
and  it  means  something.  Because  if  the  consti- 
tuent body  begin  to  thank  God  that  the  legislature 
has  adjourned  without  doing  mischief,  it  will  not 
be  long  before  it  is  forbidden  to  meet  at  all.  What- 
ever torments  and  tortures  human  society,  can- 
not exist,  must  give  way — will  give  way,  and  no- 
thing can  retain  it  but  reformation.  If  I  am  wrong 
in  this,  why  are  we  here  anxious  to  limit  the  time 
of  legislation  ?  Why  have  we  here  talked  of  having 
only  a  biennial  session,  and  of  notalJowingthe  pay 
of  members  if  they  remained  here  any  length  of 
time.  Has  there  been  any  proposition  of  this  kind 
to  deal  in  this  rnanner,by  the  people.among  the  con- 
stituent body,  with  the  Veto  power.  I  apprehend 
not  It  has  ne\er  tormented  them — it  never  has 
given  an  insecurity  to  law — and  has  never 
overturned  to-day  what  it  built  up  yesterday  — 
Sir,  I  will  give  an  example  of  the  course  legis- 
lative encroachments  always  take  If  there  be  any 
one  power  which  it  would  seem  that  legislature 
would  retain — it  is  the  power  of  specific  appro- 
priation — thut  no  money  shall  be  paid  out  except 
upon  appropriation  acta,  passed  from  time  to  time 
by  the  legislative  body.  One  would  have  supposed 
that  a  power  like  this,  so  vital  to  the  continuance 
of  legislation,  would  have  been  regarded  by  the 
legislature  of  the  State.  But  they  had  abandoned 
it,  and  without  going  into  history,  let  me  say  that 
as  early  as  1830,  the  legislature  of  the  State,  by 
general  laws,  had  conferred  so  much  power  upon 
the  Executive  officers  of  the  government,  that 


368 


they  could  go  on  here  with  the  government 
for  fifty  years  or  more,  without  the  aid  of  a 
legislature,  and  might  also  in  that  time  have 
multiplied  a  debt  of  fifty  millions.  The  danger 
then  came  not  from  the  veto  power — the  difficul- 
ty was  in  bringing  the  veto  against  these  abuses. 
Yes  sir,  when  the  Legislature  of  the  State  thought 
propei ,  they  passed  such  general  acts  that  every 
one  of  the  public  servants  of  the  State  could  be 
paid  year  after  year  for  a  century  out  of  the  pub- 
lic treasury,  without  any  new  law  or  authority 
from  the  Legislature  appropriating  a  dollar.  In 
stead  of  being  annual  arid  specific,  the  laws  h;td 
been  made  general  and  forever.  And  a  power 
was  given  and  left  with  the  corrnttoller,  when 
ever  any  thing  became  due  at  the  the  treasury,  to 
borrow  money  to  pay  it,^and  to  give  his  bond  for 
it,  and  when  that  became  due,  to  borrow  again 
and  to  give  another  bond,  and  so  ad  infinitum., 
Sir,-this  is  the  course  of  legislation  that  has  called 
us  together,  and  this  was  a  course  of  legislation 
that  the  veto  power  has  not  prevented.  There 
may  well  be  difficulty  in  specifying  fully  the  ex- 
ercise of  this  duty,  but  before  this  Convention  ad- 
journs, I  hope  that  an  effort  will  be  made,  to 
compel  the  Governor  himself,  when  proffers  of  this 
kind  of  power  are  made,  to  veto  the  bill,  and  to 
compel  the  Legislature  to  retain  the  power  of  ap- 
propriation over  the  public  money.  Sir,  it  is  not 
the  veto  power,  or  the  abuse  of  it,  or  the  clamor, 
or  just  complaint  against  it,  that  has  brought  us 
together.  It  is  the  abuse  of  other  powers.  I 
have  alluded  to  this  abuse  of  legislative  powers— 
the  most  essential,  the  most  extraordinary,  and  I 
may  add  the  most  unaccountable  among  all  others 
in  human  anticipation.  That  legislation  should 
have  appropriated  power  like  this — that  would 
have  compelled  the  Executive  to  call  them  toge- 
ther annually — may  seem  to  you  most  incredible 
and  extraordinary.  Yet  when  you  look  over  the 
Revised  Statutes,  you  will  find  that  the  power  has 
been  complete  since  1830.  As  to  the  amendment 
now  before  the  house,  I  am  entirely  willing  anc 
content  with  the  veto  as  it  stands.  1  would  prefei 
tin-  strengthening  of  it,  in  the  manner  proposed  by 
the  commi'tee  of  the  whole,  but  I  will  not  urge  it 
for  the  leasonthat  what  has  proved  invariably  sa!< 
and  has  not  been  injurious,  I  feel  quite  contented 
to  abide  by.  And  instead  ot  devoting  time  tc 
amend  what  is  assumed  to  be  good,  I  would  rathei 
devote  it  to  amending  what  is  clearly  evi 
and  deficient.  I  shall  therefore  be  content  wit! 
either  the  Veto  as  is  proposed  by  the  committee 
of  the  whole,  on  the  veto  as  adopted  in  the  pre- 
sent Constitution.  I  do  not  believe  there  would 
be  any  reasonable  danger  of  an  abuse  under  either 
Having  these  conviclions,  I  have  no  desire  t< 
press  the  matter  beyond  what  experience  prove 
to  be  necessary  and  advantageous 

Mr.  NICHOLAS  said  he  would  not  occupy 
much  time  with  this  subject,  it  having  been  ful 
ly  discussed  on  a  former  occasion.  The  import 
ance  of  the  veto  power  has  not  been  questionec 
even  by  those  who  desire  that  it  should  be  cur 
tailed.  A  qualified  negative  on  the  legislative 
power,  although  it  has  been  liable  to  abuse,  ha 
heretofore  been  considered  an  indispensable  Ex 
ecutive*  prerogative.  It  is  an  important  guar< 
against  unconstitutional,  corrupt,  and  improvi 
dent  legislation,  and  it  is  also  necessary  to  pro 


ect  the  judicial  and  executive  departments 
gainst  legislative  encroachments.  The  veto 
>ower,  as  it  exists  in  the  Constitution,  has  been 
ound  to  be  quite  strong  enough,  sufficiently  strin- 
rent  for  all  exigencies  requiring  its  interposition  ; 
and  when  a  power  has  attained  this  point,  it  should 
tever  be  made  stronger.  And  should  it  be 
trengthened,  as  by  this  section  adopted  when  in 
ommittee  of  the  whole,  it  may  be  practically 
ess  effective  than  it  now  is.  For  if  a  Governor, 
appening  to  be  a  sensitive,  timid  man,  feels  that 
lis  veto  must  be  (as  it  would  be  with  this  acces- 
ion  of  strength)  fatal  to  a  bill,  he  would  some- 
imes  be  deterred  from  exercising  this  power, 
Arhen  the  public  interests  required  it.  He  (Mr. 
<J.)  offered  this  amendment  restoring  the  provi- 
ion  of  the  present  Constitution,  as  a  medium  be- 
ween  the  extremes  now  proposed  to  us — a  strong- 
r  veto  as  provided  for  by  this  section,  which  he 
wished  to  amend,  and  a  diminution  of  the  power, 
y  the  amendment  which  the  gentleman  from 
Otsego  informs  us  he  intends  to  offer.  He  hoped 
:he  Convention  would,  by  adopting  this  amend- 
ment, retain  the  veto  power  as  it  now  exists,  and 
hereby  avoid  all  extremes. 

Mr.  WORDEN  agreed  with  the  gentleman  from 
lerkimer  that  this  Veto  power  had  been  so  often 
nd  so  elaborately  discussed,  that  an  apology  was 
due  to  the  committee  for  renewing  the  discussion 
again.  Nor  should  he  do  so  now  had  the  gentle- 
man from  Herkimer  (Mr.HoFFMAir)  confined  him- 
elf  to  the  real  question.  For  the  purposes  of  a  con- 
vincing, satisfactory  argument  to  gentlemen  who 
met  to  frame  a  Constitution  upon  principle,  the 
instances  he  cited  were  most  unfortunate,  for 
they  were  precisely  calculated  if  not  intended  to 
divide  us,  by  going  into  questions  which  had  for- 
merly given  rise  to  great  political  excitements. 
And  although  it  may  be  proved  as  the  gentleman 
had  remarked,  that  Jackson  did  exercise  the  Veto 
power,  with  great  discretion,  and  with  reference 
to  the  best  interests  of  the  country,  yet  his  learn- 
ed friend  must  have  known  that  a  very  consider- 
able portion  of  the  members  upon  this  floor,  utter- 
ly and  entirely  dissented  with  many  particulars 
in  reference  to  that.  So  also  in  reference  to  some 
other  instances  of  the  exercise  of  the  Veto  power 
to  which  the  gentleman  had  alluded.  And  it  did 
seem  to  him,  that  the  gentleman  from  Herkimer 
intended  to  draw  the  Convention  aside  from  the 
question  before  it,  to  discuss  these  irrelevant,  and 
so  far  as  this  case  was  concerned,  immaterial  mat- 
ters. And  he  (Mr.  W.)  apprehended  that  it  was 
not  the  design  of  the  gentleman  to  discuss  alto- 
gether either  the  merits  of  Jackson's  Vetoes  or  the 
particular  merits  of  the  question  under  considera- 
tion; Another  and  an  ulterior  object,  he  appre- 
hended, was  in  the  mind  of  the  gentleman,  and  if 
not  conscious  to  him,  it  was  very  apparent  to 
others.  It  was  not  the  vindication  of  the  Veto 
power  j  but  it  was  an  assault  upon  the  legislative 
power.  It  was  an  attempt  to  bring  into  disrepute 
and  contempt  before  this  body  and  the  people,  the 
legislative  power  of  this  State.  Not  for  the  pur- 
pose of  deciding  the  question  of  the  Veto  here 
to-day,  but  of  affecting  ulterior  objects,  and  other 
questions  to  be  decided  here  atsorrie  future  time. 
He  (Mr.  W.)  agreed  with  the  gentleman  that 
there  had  been  much  improvident  legislation  in 
this  state,  and  that  at  the  time  he  referred  to  in 


369 


Congress,  there  was  much  improvident,  he  would 
not  say,  corrupt,  legislation.  Because  he  well 
remembered  that  at  that  time  the  learned  gentle- 
man from  Herkimer,  with  his  political  associates, 
were  in  a  majority  in  that  Congress,  and  had  the 
power  to  control  the  action  of  that  body.  It 
would,  therefore,  be  uncourteous  in  him  (Mr.W.) 
to  say,  that  there  was  any  danger  of  corrupt  le- 
gislation on  that  occasion,  but  the  assaults  upon 
that  Congress  came  most  ungracefully  from  the 
gentleman  from  Herkimer,  and  if  he  intended  to 
have  made  an  argument  against  the  exercise  of  le- 
gislative power  and  to  prejudice  the  public  mind 
against  that  power,  he,  (Mr.  W.)  apprehended 
that  he  should  not  have  fallen  into  the  inconsis- 
tency of  condemning  himself  and  his  political  as- 
sociates. Again,  the  gentleman  in  seeking  for 
illustrations  of  the  efficacy  and  necessity  of  the 
veto  power,  had  adverted  to  the  last  veto  of  the 
Governor  of  this  State,  and  he  (Mr.  W.)  confessed 
that  he  was  astonished  when  he  found  his  learned 
friend  undertaking  to  support  his  arguments  by 
facts  that  were  not  true.  He  asserted  that  unless 
the  veto  power  had  been  interposed,  the  public 
officers  of  the  State  would  not  have  had  the  abili- 
ty to  redeem  the  Canal  Stocks  of  this  State,  fall- 
ing due  on  the  first  of  January  and  July  last. 

Mr.  HOFFMAN :  I  said  nothing  about  Jan- 
uary. 

Mr.  WORDEN  would  say  to  the  gentleman 
that  notwithstanding  the  commissioners  of  the 
canal  fund  did  report  to  the  legislature  during 
the  last  session  a  deficiency  at  the  end  of  the 
fiscal  year  of  means  to  redeem  the  stocks  falling 
due  on  the  first  of  January  and  July,  now  last 
past,  yet,  during  the  last  session  of  the  Legisla- 
ture, it  wa-3  drawn  out  from  them  and  was  now  a 
matter  of  record,  that  on  the  30th  of  September 
last,  they  had  under  their  control  the  means  to 
pay  every  dollar  of  the  stock  due  on  those  days, 
and  yet  have  a  sufficiency  to  meet  all  the  appro- 
priations made  in  that  vetoed  bill.  Similar  state- 
ments would  be  found,  in  most  of  the  reports 
in  relation  to  the  public  debt.  Though  they 
might  be  true  in  sense,  yet  they  were  not  true  as 
matters  upon  which  to  base  legislation.  For  in- 
stance, he  found  on  his  table  a  document  from 
the  Comptroller  giving  the  total  amount  of  the 
canal  debt  at  $17,516,11947.  Now,  that  was 
not  the  amount  of  the  canal  debt  at  that  date. — 
The  canal  debt  of  this  State  due  that  day  did  not 
amount  to  that  sum.  For  all  practical  purposes  of 
legislation,  and  to  govern  and  lead  this  body,  that 
statement  is  untrue.  At  the  time  of  that  state- 
ment there  was  almost  a  half  a  million  of  the  pub- 
lic stocks  cancelled,  paid,  and  in  the  office  of  an 
agent  of  the  State,  who  had  paid  them  with  the 
public  funds  and  with  the  money  of  the  State. — 
To  all  intents  and  purposes  they  were  paid,  and 
yet  they  were  put  down  here  as  part  of  the  ex- 
isting and  outstanding  debt  against  the  State. — 
And  this  has  been  somewhat  the  manner  of  state- 
ments from  the  public  officers  in  times  past.  So 
much  in  regard  to  this  argument  of  the  gentleman 
in  support  of  the  veto  power.  He  (Mr.W.)  regret- 
ted io  SL-U  tiom  that  gentleman  not  only  here  but 
elsewhere,  an  utter  di*trust,and  he  might  say  con- 
temp'  for  the  legislative  power.  He  would  cite 
one  uu;sr  memoiable  instance  of  the  disregard  of 
law  in  this  slate  by  its  high  public  functionaries, 


as  well  the  Governor,  as  others.  In  1834  he 
thought  it  was,  a  law  was  passed  directing  the 
Canal  Commissioners  to  enlarge  the  locks  on  the 
Erie  canal,  and  to  extend  their  capacity.  At  the 
next  succeeding  session  of  the  legislature,  those 
Commissioners  say  in  their  report  that  they  disre- 
garded the  law, arid  had  i'ailed  to  carry  it  out  because 
there  was  an  irresistible  and  imperious  necessity, 
not  onlv  for  the  doubling  of  the  locks,  but  for  I  he 
enlargement  of  the  canal,  on  a  plan  something  like 
the  contemplated  present  enlargement.  This  im- 
perious necessity  justified  these  public  officers,  or 
rather  they  justified  themselves  in  refusing  to  obey 
the  law,  and  they  came  here  before  the  legislature 
justifying  their  action  upon  that  ground, and  urging 
the  necessity  of  an  immediate  enlargement  ot  the 
Erie  canal.  And  from  that  day  and  that  hour  the 
fiscal  embarrassments  of  the  State  may  be  dated. 
In  the  first  place,  when  we  undertake  to  create  a 
power  in  the  government.no  matter  for  what  pur- 
pose, we  should  see  that  occasion  existed  for  that 
power.  Why  do  we  make  a  Governor  at  all  un- 
less it  is  necessary  in  the  arrangement  of  the  gov- 
ernment that  there  should  be  such  an  officer? — 
Why  do  we  confer  certain  powers  upon  him  unless 
satisfied  that  their  exercise  is  necessary  ?  Why  do 
we  confer  upon  him  the  Veto  power,  and  why 
create  it  at  all  ?  There  must  be  some  reason  for  it, 
and  what  is  that  reason  ?  Now  he  (Mr.  W. )  ap- 
prehended it  would  be  found  in  this: — It  is  on 
the  supposition  or  presumption  what  experience 
teaches  us  may  exist,  that  there  will  be  unwise, 
corrupt  and  mischievous  legislation.  We  have, 
heretofore  reposed  this  power  in  the  Executive. 
But  when  WHS  this  power  to  be  exercised  ?  It  was 
only  upon  thesuppposition  that  the  Legislature  has 
been  corrupt,  unwise,  or  has  passed  some  bill  that 
is  mischievous  in  its  character  or  conclusions. — 
The  power  then  when  exercised,  ought  to  be,  in 
the  very  nature  of  things,  an  effective  power,  to 
the  end  that  it  may  remedy  the  mischief  and  ex- 
cesses that  it  is  designed  to  prevent.  Now  would  it 
be  wise  under  such  circumstances,  and  looking 
at  the  emergency  in  which  it  ought  to  be  exer- 
cised, to  make  this  power  nugatory  and  of  no 
effect,  and  utterly  powerless  to  reach  the  evil,  it 
was  intended  to  reach  and  correct,  and  to  pre- 
vent the  mischief  it  was  intended  to  prevent? — 
It  struck  him  that  it  would  not.  Therefore  it  was 
that  it  was  wise  in  his  judgment,  when  we  created 
this  power  to  make  it  effective  for  the  end 
designed — to  arrest  corrupt,  improvident,  and 
unconstitutional  legislation*.  Therefore  it  must 
go  beyond  a  bare  majority,  because  a  bare  ma 
jorify  could  pass  at  any  lime,  and  most  usually,  did 
pass  a  bill.  There  were  very  few  bills,  which  call 
out  debate,  which  would  fail  to  pass  in  a  legisla- 
tive body  by  a  majority.  The  very  bill  the  gentle. 
man  alluded  to,  passed'by  a  majority  of  all  the  mem- 
bers elected  to  the  House.  And  he  (Mr.  W.)  only 
regretted  that  sickness  prevented  his  being  there 
and  voting  against  that  bill,  as  he  deemed  it 
inexpedient  to  begin  the  public  works  upon  the 
miserable  pittance  of  $100,000.  He  thought  all 
would  acknowledge  that  a  majority  might  act  in 
this  matter.  Then  it  would  be  unwise  to  say  that 
a  majority  should  pass  a  bill,  for  it  would  be  to 
render  the  veto  power  nugatory  in  every  case 
where  it  ought  to  be  effective.  This  veto  power 
may  be  abused  and  gentlemen  seemed  throughout 


370 


to  have  argued  against  the  abuse  of  the  pow- 
er, rather  than  against  the  power  itself.  All  pow- 
er entrusted  to  public  functionaries  might  be  a- 
bused,  but  that  was  no  reason  why  we  should  not 
entrust  them  at  all.  The  governor  may  abuse 
the  veto  power,  and  the  legislature  may  abuse  its 
power  ?  But  where  was  the  remedy  ?  Whenev- 
er the  executive  vetoes  a  bill,  whether  properly 
or  improperly,  he  is  to  go  before  the  people  for 
their  judgment.  He  is  to  assign  his  reasons,  and 
we  must  bear  in  mind  that  the  people  would  be 
astute  and  vigilant  in  looking  at  the  exercise  of 
this  very  extraordinary  prerogative,  and  they  will 
condemn  or  justify  him  upon  what  may  be  the 
merits  of  the  case.  If  the  veto  power  arrest- 
ed or  embarrassed  a  bill  that  was  right 
and  proper,  it  could  only  defer  it  for  a  future 
time — (and  here  he  thanked  the  gentleman  from 
Herkimer  for  his  argument.)  It  may  prevent  for 
a  limited  period  a  positive  good,  and  it  may  pre- 
vent for  all  time  to  cotpe  the  enactment  and  do- 
ing of  a  positive  injury.  Therefore  it  was  better 
to  give  the  Governor  this  power,  evon  if  its  exer- 
cise was  sometimes  abused,  than  to  deprive  him 
of  it  and  to  allow  bad  legislation  to  take  effect, 
where  there  would  be  no  correction  for  it.  We 
had  this  veto  power  ever  since  our  first  constitu- 
tion was  ad  >pted,  in  this  precise  language,  and  we 
had  lived  under  it  seventy  years  without  finding 
any  practical  evil  resulting  from  its  exercise. — 
We  might  however  have  found  practical  evil,  if  j  the  legislature,  and  having  then  cases  of  apprai 


what  was  in  my  mind  better  than  I  did  myself  he 
might  be  right,  yet  if  I  know  what  was  in  rny 
mind,  he  was  extremely  wrong,  I  will  not  say  false, 
in  his  knowledge.  And  if  in  the  progress  of  this 
Convention  the  question  of  legislative  [tower 
should  be  raised,  and  God  spares  my  health  and 
enables  me  to  do  it  justice,  I  will  satisfy  the 
gentleman  and  the  house,  that  any  thing  I  have 
yet  said  on  the  subject,  is  the  language  of  mercy 
and  kindness.  The  gentleman  had  taken  up  do- 
cument No.  47,  and  has  directly  charged  the  pub- 
lic officers  with  making  a  false  return  of  the  canal 
debt.  Tha^call  went  to  the  public  officers  in  the 
month  of  June,  and  the  statement  reached  up  to 
that  time. 

Mr.  TILDEN:  The  express  terms  of  the  call 
were  up  to  the  first  of  June. 

Mr.HOFFMAN:  Yes,  and  knowing  that  to  be  so, 
they  took  it  into  consideration  in  making  up  the  ac- 
count. Now,  sir,  here  the  gentleman  is  exceedingly 
unfortunate  again.  The  fact  was  that  the  canal  com- 
missioners (of  which  at  that  time  I  was  one)  pro- 
ceeded with  too  much  industry  to  execute  the  act 
of  the  Legislature  ;  they  went  on  to  appraise  the 
land  for  the  double  locks,  and  did  all  that  they 
were  authorised  to  do,  with  the  utmost  possible 
diligence  ;  and  remained  at  their  post,  until  driv- 
en away  by  the  approach  of  winter.  They  staid 
there  until  the  canal  froze,  and  came  here  only 
in  time  to  prepare  their  result  for  the  meeting  of 


we  had  permitted  a  bare  majority  to  pass  the  act, 
notwithstanding  the  veto.  Not  long  since  a  po- 
litical majority  in  the  legislature,  passed  a  bill 
positively  violating  a  solemn  contract  made  by 
the  State.  What  was  the  result  ?  The  Execu- 
tive veto  interposed,  and  the  State  was  saved 
from  the  odium  of  repudiating  its  own  contract, 
and  violating  its  own  constitutional  obligations. — 
He  (Mr.  W.)  did  not  know  of  any  other  instance 
of  a  bill  being  vetoed  precisely  upon  party  grounds 
other  than  that.  Leave  this  majority  clause  in 
the  constitution,  and  if  occasion  should  occur 
again,  the  veto  power  would  be  powerless  to  ar- 
rest mere  party  legislation.  He  was  content  that 
the  veto  power  should  remain  as  it  is,  and  he 
should  therefore  vote  against  the  proposition  of 
the  gentleman  from  Otsego,  and. -in  favor  of  that 
of  his  colleague. 

Mr.  HOFFMAN  would  not  have  troubled  the 
Convention  with  another  word  on  this  subject,  if 
the  gentleman  from  Ontario  had  not  alluded  to 
two  or  three  particular  matters  with  a  personal 
reference  to  him.  He  could  not  be  drawn  in  any 
legislative  body,  into  an  altercation  with  any  mem- 
ber of  it.  The  gentleman  had  said  (said  Mr.  H.) 
that  I  had  in  my  mind,  he  admits  that  I  may  have 
been  unconscious  of  it,  and  I  admit  that  it  is  a 
gre;it  curiosity  that  a  man  should  have  a  meaning 
in  his  mind  tor  such  objects  as  that  and  not  know 
it. 

Mr.  WORDEN  :  The  gentleman  will  allow  me 
to  correct 

Mr.  HOFFMAN:  No  sir,  I  will  not  allow  the 
gentleman  to  correct  himself.  He  stated  that  1 
had  in  my  mind  not  so  much  the  right  of  the 
veto  power  of  the  Executive,  as  the  holding  uj 
of  the  letHlahve  power  to  contempt.  These 
might  not  be  his  exact  words,  but  it  was  the  sub 
stance  of  what  he  said.  If  the  gentleman  kneu 


al  that  lasted  until  the  1st  of  May.  Again  the 
entleman  says  that  the  Fund  Commissioners  had 
unds  in  January  to  meet  the  debt  that  was  due  in 
uly.  Now,  sir,  as  to  the  funds  that  were  in 
land  to  meet  that  debt,  I  know  the  fact  to  be  that 
he  comptroller  was  actually  compelled,  in  order 
.o  meet  that  debt,  to  rake  and  scrape  the  canal 
oils,  not  up  to  any  usual  or  regular  time,  but  up 
o  the  22d  of  June  ;  and  he  thus  barely  got  the 
£800,000  to  meet  that  debt.  So,  sir,  in  all  his 
bur  personal  allusions  the  gentleman  is  entirely 
mistaken,  and  when  he  tries  again,  I  hope 
will  be  more  fortunate. 

Mr.    CHATFIELD  followed. 

At  a  quarter  past  6  o'clock, 

Mr.  St.  JOHN,  with  a  view  to  stop  this  long 
debate,  moved  the  previous  question. 

This  was  seconded  41  to  26. 

Mr.  NICHOLAS'S  amendment  to  allow  two- 
thirds  of  all  present  to  repass  a  bill  after  a  veto 
was  then  put. 

Mr.  CAMBRELENG  demanded  the  ayes  and 
noes.  Agreed.  They  resulted  thus. 

AYES—  Messrs.  Angel,  Archer,  Ayrault,  H.  Backus, 
Bakt-r  Bascom.  Bouek,  Bull,  Cambreleng,  R.  Campbell, 
jr..  Cand«e,  Clark,  Cl>de,  Crooker.  Dana,  Dodd,  Dubois, 
Klanders,  Forsyth,  Gebhard,  Graham,  Greene,  Hoftman, 
Hotchkiss  A.  Huntington,  Hyde,  Jordan,  Kemble,  Kings- 


y,  Marvin,  Maxwell,  Murphy,  Nellis,  Nicholas,  Micoll, 
arish,  Pattemwi,  Perkins,  Porter  Pres-ident,  Hiker,  Salis- 
bury, Sears,  Shepaid,  Simmons,  E.  Spencer,  Stephens, 
Stetson,  Stow,  Stroner,  Swackhamer,  Taggart,  J.  J.  Tay- 
lor, Tilden,  Warren.Waterbury.Willard,  Witbeck,  Wood, 
Worden,  Young—  61. 

NAYS—  Messrs.  Brown,  Brundage,  Burr,  Chatfield,Con- 
ely,  Cook,  Cornell,  Cuddeback,  Daniorth,  Dorlon,  t-  arris, 
Hutchinson,  Jones,  Kirkland,  Maun.McNitt,  Miller,  Mor- 
ris O'Conor,  Fenniman,  Kuggles,  Russell,  St.  John,  Sha- 
ver. Shaw,  Sheldon,  smith,  W.  H.  Spencer,  Stanton,  Tall- 
maue,  W.  Taylor,  Townsend,  Tuthiil,  Vache,  W.  Ji. 
Wright,  Yawger—  36. 
Mr.  CHATFIELD  then  moved  his  amendment, 


371 


allowing  a  majority  of  all  the  members  elected 
to  pass  a  bill  after  a  veto. 

The  same  was  lost  as  follows : — 

AYKS— Messrs.  .Archer,  H  Backus,  Ba?com,  Bouck, 
Burr,  Candee,  Chatfield,  Cook,  Crooker,  Doilon,  Geb- 
hard,  Harris,  H^twley,  Parish,  Patterson,  Penniman,  Sails- 
bury,  Shaver,  K.  Spencer,  W.  H.  Spencer,  Taggart,  War- 
ren, Willard,  W.  B.  Wiight,  Yawger— 25. 

NOES— Messrs.  Angel,  Ayrau'.t,  Brown,  Brundage 
Bull,  Cambi eli  ng,  R  Campbell,  jr.  Cla:k,  Clyde,  Conely, 
Cornell,  Cuddebaek,  Dana,  Danlurth,  Dodd,  Dubois,  Flan- 
ders, Korsyth,  Graham,  Greene,  Hart,  Hoffman,  Hotch- 
kiss,  A.  Huntingtun,  Hntchinson,  Hyde.  Jones,  Jordan, 
Kemble,  Kii.gsley,  Kirkland,  Mann,  McNitt,  Marvin, 
Maxwell,  Miller,  Mori  is.  Murphy,  Nellis,  Nicholas,  Ni 
coll,  O'Conor,  Perkins,  Porter,  President  Richmond.  Hi- 
ker, Rnggles,  Russell,  St.  John,  Sears,  Shaw,  Sheldon, 
Shepard,  Simmons,  Smi  h,  Stmton.  Stephens,  Stetson, 
Stow  Strong,  Swackhamer,  Tail,  Tallmadpe,  J.  J.  Tay- 
lor, W.  Taylor,  Tilden,  Towns.-nd,  Tuthill,  Vache,  Water- 
bury,  Wood,  Worden,  loung— 74. 

Mr.  MANN  gave  notice  of  a  motion  to  recon- 
sider the  vote  on  Mr.  NICHOLAS'S  amendment. — 
Laid  over. 

Mr.  JONES  said  as  there  was  no  likelihood  to 
be  any  changes  made  in  this  article,  he  moved  to 
have  it  printed  as  it  had  just  been  adopted. 

Mr.  PATTERSON  said  that  as  the  subsequent 
action  of  the  Convention  might  lead  to  the  neces- 
sity of  some  alterations  hereafter  in  this  article, 
it  had  better  be  laid  on  the  table  for  the  present 
and  printed. 

The  PRESIDENT :  The  question  is  on  the 
adoption  of  the  report  as  it  is. 

Mr.  STOW  would  like  now  to  move  his  amend- 
ment that  if  a  person  goes  abroad  on  business  con- 
nected with  the  State,  it  shall  not  disqualify  him 
for  the  office  of  governor. 

Mr.  HOFFMAN  said  they  could  not  as  matters 
stood  at  present,  go  back  to  any  part  of  the  re- 
port without  a  motion  to  reconsider.  The  best 
way  for  them  to  adopt  would  be  to  have  the  point 
referred  to  the  committee  on  rules,  so  that  that 
committee  might  determine  upon  some  plan  by 
which  a  section  might  now  be  laid  aside  so  as  to 
be  reached  hereafter. 

The  article  was  then  adopted,  as  follows : 

ARTICLE. 
On  the  election,  tenure  of  office,  compensation,  powers  and 

duties  {except  the  power  to  appoint  or  nominate  to  office.) 

of  the  Governor  and  Lieutenant- Governor. 

SKCTIOI*  1.  The  executive  power  shull  be  vested  in  a 
Governor,  who  shall  hold  his  office  for  two  years.  A 
Lieutenant-Governoi  shall  be  chosen  at  the  same  time,  aiid 
lor  the  same  teirn. 

ij  2  No  person  except  a  citizen  of  the  United  States, 
shall  be  eligible  to  the  office  of  Governor;  nor  shall  any 
person  be  eligible  to  that  office  who  shall  not  have  attain- 
ed the  age  of  30  ^years,  and  who  shall  not  have  been  five 
years  next  preceding  his  election,  a  resident  within  this 
Sta'e. 

§  3.  The  Governor  and  Lieutenant-Governor  shall  be 
elected  at  the  times  and  places  ol  choosing  members  of  the 
Legislature.  The  persons  respectively  having  the  highest 
number  of  votes  for  Governor  and  Lieutenant  Governor, 
ihali  be  elected;  but  in  case  two  or  more  shall  have  an 
equal  and  tr»e  higest  number  of  votes  for  Governor,  or  lor 
Lieutenant  Governor,  the  two  houses  of  the  Legislature, 
at  its  next  annual  session,  shall,  forthwith,  by  jjint  ballot, 
choose  one  ol  the  said  persons  so  having  an  equal  and  the 
highest  number  of  votes  for  Governor,  or  Lieutenant- 
Go  vernor. 

§4.  The  Governor  shall  be  commander-in-chief  of  the 
mt'litary  and  t.aval  forces  of  the  State..  He  shall  have 
power  to  convene  the  Legislature  (or  the  Senate  only)  on 
extraordinary  occasions.  Ht  shall  communicate  by'mes- 
sage  to  the  Legislature  at  every  session,  the  condition  of 
the  State;  an- 1  recommend  such  matters  to  them  as  he 
shall  judge  expedient.  He  shall  transact  all  necessary 


business  with  the  officers  of  government,  civil  and  mili- 
tary. He  shall  expedite  all  such  measures,  as  may  be  re- 
solved upon  by  the  Legislature,  and  shall  take  cure  that 
the  laws  are  faithfully  executed.  1  e  shall,  at  stated  times, 
receive  for  his  services,  a  compensation  to  be  established 
bylaw,  which  shall  neither  be  increased  or  diminished 
after  his  election  and  during  his  continuance  in  office. 

^  5.  The  Governor  shall  have  the  power  to  grant  re- 
prieves, commutations,  and  pardons,  after  conviction,  for 
all  oflences  except  treason  and  cases  of  impeachment,  up- 
on such  conditions,  and  with  such  restrictions  and  limit- 
ations, as  he  may  think  proper,  subject  to  such  regula- 
tions as  may  be  provided  by  law,  relative  to  the  manner  of 
applying  for  pardon.  Upon  conviction  lor  treason,  he 
shall  have  power  to  suspend  the  execution  of  the  sentence 
un'il  the  case  shall  be  reported  to  the  Legislature  at  its 
next  meeting,  when  the  Legislature  shall  either  pardon, 
commute  the  sentence,  direct  the  execution  thereof,  or 
grant  further  reprieve.  He  shall  annually  communicate 
to  the  Legislature  each  case  of  reprieve,  commutation  or 
pardon  granted;  stating  the  name  of  the  convict,  the  crime 
of  which  he  was  convicted,  the  sentence  and  its  date,  and 
the  date  of  the  commutation,  pardon  or  reprieve. 

§  6.  In  case  of  the  impeachment  of  the  Governor  or  his 
removal  from  office,  death,  inability  to  discharge  the 
powers  and  duties  of  the  said  office,  resignation  or  absence 
from  the  State,  the  powers  and  duties  of  the  office  shall 
devolve  upon  the  Lieutenant  Governor  for  the  residue  of 
the  term,  or  until  the  disability  shall  cease.  But  when  the 
Governor  shall  with  the  consent  of  the  legislature,  be  out 
of  the  State  in  time  of  war,  at  the  head  of  a  military  force 
thereof,  he  shall  continue  commander-in-chiei  of  all  the 
military  force  of  the  State 

§  7.  The  Lieutenant-Governor  shall  possess  the  same 
qualifications  of  eligibility  for  office  »s  the  Governor.  He 
shall  be  President  of  the  Senate,  but  shall  have  only  a 
casting  vote  therein.  If  during  a  vacancy  ol  the  office  of 
Governor,  the  Lieutenant  Governor  shall  be  impeached, 
displaced,  resign,  die,  or  become  incapable  of  performing 
the  duties  of  his  office,  or  be  absent  from  the  State,  the 
President  of  the  Senate,  shall  act  as  Governor  until  the 
vacancy  be  filled,  or  the  disability  shall  cease. 

$8  The  Lieutenant  Governor  shill,  while  acting  as 
such,  receive  a  compensation  which  shall  be  fixed  by  law, 
and  which  shall  not  be  increased  or  diminished  during  his 
continuance  in  office. 

15  9.  Kvei  y  bill  which  shall  have  passed  the  Senate  and 
Assembly,  shall  before  it  becomes  a  law,  be  presented  to 
the  Governor  :  if  he  approve,  he  shall  sign  it ;  but  if  not, 
he  shall  return  it  with  his  objections  to  that  house  in 
which  it  shall  have  originated;  who  shall  enter  the  objec- 
tions at  large  on  their  journal,  and  proceed  to  reconsider 
it.  If  after  such  consideration  two-third*  of  the  members 
present  shall  agree  to  pass  the  bill,  it  shall  be  sent,  toge- 
ther  with  the  objections  to  the  other  house,  by  which  it 
shall  likewise  be  reconsidered,  and  if  approved  by  two 
thirds  of  the  members  present,  it  shall  become  a  law  not 
withstanding  the  objections  oi  the  Governor.  But  in  all 
such  cases,  the  votes  of  both  houses  shall  be  determined 
by  yeas  and  nays.,  and  the  names  of  the  members  voting 
for  and  against  the  bill,  shall  be  en'ered  on  the  journal  of 
each  house  respectively.  If  any  bill  shall  not  be  returned 
by  the  Governor  within  ten  days  (Sundays  excepted)  af- 
ter it  shall  have  been  presented  to  him,  the  same  shall  be 
a  law,  in  like  manner  as  if  he  had  signed  it,  unless  the  Le- 
gislature shall  by  their  adjournment  prevent  its  return;  in 
which  case  it  shall  not  be  a  law. 

The  Convention  then  adjourned  till  to-morrow. 

TUESDAY,  (41st  day,)  July  21. 
Prayer  by  the  Rev.  Dr.  KENNEDY. 
The  PRESIDENT  presented   a  communication 
from  P.  Shapter,  of  Willi.imsburgh,   in  relation  to 
the  rendition  clause  in   our  piesent  Constiiution, 
&c. 

Mr.  CHATFIELD  movec!  to  lay  it  on  the  table 
as  it  was  indecorous.     Carried. 
CURRENCY. 

Mr.  CAMBRELENG   reported   the    following 

resolutions  as  amendments  which  he   said  (hat  he 

should  offer  when  in  committee  of   the  whole,  on 

the  report  on  currency  and  banking: — 

All  incorporated  companies  and  associations  exercising 


372 


banking  powers  shall  be  subject  to  visitation  and  exami- 
nation at  the  instance  of  their  shareholders,  or  of  their  cre- 
ditors, under  regulations  to  be  established  by  the  Legisla- 
ture; and  in  case  of  the  failure  of  any  such  incorporation 
or  association  to  discharge  its  debts  or  liabilities,  or  oi 
any  of  its  members  to  discharge  its  debts  for  which  they 
may  be  personally  liable  as  members  ot  such  incorpora- 
tion or  association,  provision  shall  be  made  for  the  speedy 
and  equitable  settlement  of  the  aflairs  of  such  incorporation 
or  association  and.  for  dissolving  the  same. 

The  Legislature  shall  provide  by  law  lor  the  exclusion 
of  the  notes  of  Banks  of  other  States  from  circulation  with- 
in this  State. 

The  Legislature  shall  limit  the  aggregate  amount  of 
Bank  notes  to  be  issued  by  all  the  Banks  and  joint  stock 
associations  in  this  State,  now  existing  or  which  may 
be  hereafter  established. 

Referred  to  the  committee  of  the  whole. 

Mr.  RICHiMOND  asked  leave  to  correct  the 
journal.  He  had  voted  for  the  reconsideration 
yesterday  of  the  Veto  on  the  pardoning  power, 
and  also  with  Mr.  CHATFIELD,  on  the  pending 
question.  Leave  granted. 

MAJORITY  LEGISLATION. 
Mr.  MANN  offered   the  following  resolution, 
which  was  adopted: — 

Resolved,  That  it  be  referred  to  the  committee  No  2,  on 
the  powers  and  duties  of  the  Legislature,  except  a^  to  mat- 
ters otherwise  referred,  to  consider  the  propriety  and  ex- 
pediency of  reporting  a  section  to  the  constitution  re- 
quiring the  vote  of  a  majority  of  all  the  members  elected 
>  both  branches  of  the  legislature  to  pass  any  bill  or 

Mr.  TAGGART  moved  that  a  copy  of  the 
manual,  red  book,  &c.  &c.  be  given  to  each  of  the 
messengers,  Adopted. 

LOANS  TO  COLLEGES,  &o. 
Mr.  SWACKHAMER  offered  the  following: 
Resolved,  That  the  Comptroller  be  respectfully  request- 
ed to  furnish  to  the  convention  a  statement  of  the  amount 
of  money  or  property  appropriated  or  loaned  to  the  seve- 
ral Colleges,  Seminaries,  Institutes  and  Academies  of  the 
State,  and  the  University  of  the  city  of  New  York  since 
1821.  And  also  the  amount  appropriated  to  these  institu- 
tions respectively  from  the  Literature  Fund;  and  as  far  as 
practicable,  what  proportion  of  the  sums  appropriated  has 
been  used  lor  the  benefit  of  females. 

Mr.  STETSON  said  this  would  require  a  review 
of  all  that  had  passed  and  been  done  at  these  col- 
leges, since  1821.  Was  it  worth  while  to  go  to 
this  trouble  without  a  compensatory  object. 

Mr.  SWACKHAMER  said  he  had  a  double  ob- 
ject in  view,  in  offering  the  resolution — First  in 
adopting,  as  he  trusted  we  would,  an  uniform  en- 
lightened and  just  system  of  education,  it  was  im- 
portant to  know  how  the  money  of  the  State  had 
been  appropriated  for  this  purpose  under  the  pre- 
sent Constitution.  His  next  object,  was  to  show 
— when  the  proper  time  arrived — that  females 
had  not  only  been  most  unjustly  deprived  of  their 
rights  of  property,  by  those  who  arrogated  to 
themselves  the  exclusive  prerogation  of  govern- 
ment, but  that  even  the  terms  levied  upon  their 
property,  for  the  promotion  of  the  higher  branch- 
es of  education,  had  been  almost  exclusively  used 
for  the  instruction  of  males,  while  the  education 
of  females,  in  similar  branches  of  learning,  was 
shamefully  neglected. 

Mr.  NICOLL  said  it  might  be  desirable  to  get 
the  information,  but  he  wished  to  have  it  referred 
to  the  committee  on  education  so  as  to  have  the 
subject  examined. 

Mr.  WJLLARD  hoped  not.  He  wanted  it  sent 
direct  to  the  Comptroller,  so  that  the  whole  sub- 


ject might  be  opened  up,  so  as  to  show  how  the 
people  have  been  defrauded. 

Mr.  A.  W.  YOUNG  could  see  no  use  in  it. 

It  was  referred  to  the  Education   committee. 
REGULATION  OF  AMENDMENTS. 

Mr.  HAWLEY  offered  the  following : 

Resolved,  That  no  amendment  to  a  proposition  which 
shall  have  been  considered  in  committee  of  the  whole, 
shall  be  in  order  in  the  Convention,  unless  the  substance 
of  the  amendment  shall  have  been  oflered  and  decided  in 
committee  of  the  whole. 

Mr»  HAWLEY  said  there  had  been  so  much 
time  wasted  in  idle  speeches  by  members,  that  it 
was  necessary  to  have  some  more  straight  rules  in 
committee  of  the  whole. 

Mr.  A.  WRIGHT  moved  to  refer  this  to  the 
committee  on  rules.  Agreed  to. 

REPORT  OF  THE  EXECUTIVE. 

Mr.  BROWN  moved  that  they  proceed  to  the 
unfinished  business  of  yesterday. 

The  PRESIDENT  stated  that  yesterday  the 
Convention  passed  through  all  the  sections  of  the 
article  on  the  duties  and  powers  of  the  Execu. 
live. 

Mr.  MANN  said  he  would  call  up  his  motion. 
There  were  several  motions  ot  reconsideration 
yesterday  still  pending,  and  he  called  for  the  vote 
on  the  motion  he  made  to  reconsider  the  vote  on 
the  veto  section. 

SEVERAL  :  Oh,  no ! 

Mr.  MANN  then  said  it  had  been  suggested  to 
him  to  withdraw  his  motion  and  let  the  subject 
lie  over  until  the  committee  reported  on  the  sub 
ject  of  majority  legislation.  He  did  not  know 
what  necessary  connection  there  was  between  the 
two  subjects,  but  he  yielded  to  the  wishes  of  his 
friends,  and  withdrew  his  motion. 

Mr.  MORRIS  said  with  a  view  of  ascertaining 
the  desires  of  gentlemen,  as  there  appeared  to  be 
differences  of  opinion  on  the  subject,  as  to  what 
really  would  be  the  proper  course  to  pursue  in 
relation  to  this  article  which  had  been  passed 
through,  he  would  suggest  that  the  article  lie  over 
for  the  present,  with  the  view  of  hereafter  ap. 
pointing  some  committee  whose  duty  it  shall  be 
to  take  all  the  articles  that  may  be  passed  upon 
by  the  Convention,  and  make  them  conform  to 
each  other,  by  striking  out  such  conflicting  pro- 
visions as  may  be  in  them.  He  moved  according, 
ly  that  article  lie  over. 

Mr.  RUSSELL:  And  that  it  be  printed. 

Mr.  MORRIS:  Very  well,  sir. 

Mr.  CHATFIELD  said  that  was  not  the  proper 
course,  and  suggested  that  the  motion  should  be 
simply  to  lay  on  the  table. 

Mr.  MORRIS  said  he  would  make  that  motion. 

Mr-  CLYDE  suggested  that  the  article  should 
be  printed. 

Mr.  MANN  hoped  not.  It  had  been  printed 
several  times  already.  Let  it  be  finished  first. 

Mr.  CROOKER  said  he  would  have  it  printed 
ten  times  if  it  was  necessary. 

Mr.  PATTERSON  hoped  that  ihevote  on  the 
reconsideration  would  be  taken  now.  The  House 
was  as  full  as  jt  ever  would  be. 

There  were  85  members  present. 

Mr.  CHATFIELD  hoped  that  the  motion  to  re- 
consider would  be  withdrawn.  He  had  had  the 
honor  of  submitting  two  of  the  propositions  which 
it  was  now  moved  to  reconsider,  and  he  was  satis- 


373 


gained  by  pressing  the  motion 

that  gentlemen  would  not  be  likely  to  c 

minds,  he  did  not  know.     A  very  decisive  vote 


fied  that  nothing  could  be  gained  by  pressing  the    ^g?^^MooMraNSATlON  OF  THE  LEGISLA-- 
motions  to  reconsider  at  this  time  as  gentlemen    .  TURE. 

would  not  change  their  minds.  The  committee  of  the   whole,  Mr.  PATTER- 

Mr.  MANN  was  not  so  confident  up°n  tnaj  SON  being  called  to  the  chair,  took  up  the  report 
point  as  the  gentleman  from  Otsego.  He  hoped  Ofcommittee  No.  1}  (Mr.  W.  TAYLOR'S)  on  the 
they  would  have  a  clause  inserted  in  the  Consti-  L  iglaturej  &,c. 

tution  that  a  majority  of  the  legislature  only  sr  The  firgj.  sectjon  wag  rea(j  and  passed  without 

legislate,  and  if  so  the  Veto  should  be  strengthen- !  ^  follow8._ 

od.     In  relation  to  the  observation  of  the  gent  legislative  power  of  this  State  shall  be  vested  in 

man,  (Mr.  CHATFIELD,)  that  n°thinS_w^_to^f  |  a  senate  and  Assembly. 

The  second  section  having  been  read,  as  fol- 
lows : — 

loot  TTVi    I     62.  The  Senate  shall  consist  of  thirty-two  members,  and 

was  taken  on  the  Veto  power  one  way  last       .-   th^gen^eors  ghall  be  chosen  lor  two  year*.     The  Assem 
day   and  they  had  changed  considerably  by  yester-   bl    shall  consi8t  Of  one  hundred  and  twenty-eight  mem- 
day  for  just  as  decisive  a  vote  was  then  taken  the  bers,  who  shall  be  annually  elected, 
other  way.  Mr.  W.  TAYLOR  b-aid   that  the  only  amend- 

Mr.  PATTERSON,  for  the  purpose  of  dispos-  ment  wnich  the  committee  had  made  in  this  sec- 
ing  of  the  question,  called  for  the  consideration  tjon>  was  (ne  alteration  of  one  word,  to  substitute 
of  the  motion  to  reconsider  the  vote  on  Mr.  Ni-  two  for  lour  years,  as  the  term  of  service  of  Sen- 
CHOLAS'  motion  yesterday,  and  intimated  how-  ators>  jt  would  be  proper  that  he  should  say, 
ever  that  he  should  vote  against  the  motion  to  re-  tnat  a3  the  committee  had  resolved  on  the  plan  of 
consider.  single  districts,  they  deemed  it  proper  that  the 

Mr.  MANN  opposed  the  decision  being  made  term  Of  86nators  be  shortened  in  order  that  they 
at  this  time,  and  moved  to  lay  the  resolution  to  Ln0uld  become  immediately  responsible  to  their 
reconsider  on  the  table.  Lost.  constituents  tor  their  acts.  This  and  the  follow- 

The  question  was  then  taken  on  the  motion  to  \\ng,  section  were  so  much  involved,  as  necessa- 
reconsider,  and  it  was  negatived.  rily  to  some  extent  to  require  to  be  considered 

Mr.  STETSON  said  that  he  had  moved  to  re-  logether.  He  would  say  however  that  by  the 
consider  the  vote  on  the  9th  section.  But  he  present  pian  the  senators  were  chosen  every  four 
would  defer  the  taking  any  further  action  until  years— one  being  chosen  in  each  district  annually, 
the  Convention  had  acted  on  the  report  of  com-  by  wnich  means  there  is  an  annual  expression  of 
mittee  No.  7,  which  provided  generally  for  the  (ne  gentiments  of  the  people  (o  that  branch  of  the 
holding  of  office.  legislature.  If  the  single  Senate  district  system 

Mr.  TAGGART  coincided  with  this,  were  adopted  without  changing  the   term,  there 

Mr.  RUSSELL  moved  that  they  should  take  wouid  be  a  lapse  of  three  years,  during  which  the 
the  fins!  vcte  on  the  article  to-day.  Let  us  at  p0pU[ar  sentiment  could  n<  t  be  expressed  by  an 
least  say  before  two  months  is  past,  we  have  set-  eiectK>n  as  far  as  regarded  the  election  of. Senators, 
tied  at  least  one  thin?  in  the  Constitution.  gut  lne  committee  had  decided  that  that  terra 

Mr.  STETSON  asked  if  they  could  hereafter  was  too  |ongi  jt  was  true  there  were  some  ad 
insert  the  p-cvision  he  had  desired,  relative  to  vantages  in  the  four  year  system.  The  Senate 
the  Governor,  when  they  came  to  discuss  the  ar-  wag  designed  as  a  sort  of  check  on  the  more  pop- 
ticle  reported  by  committe  No.  7  ?  ular  branch  of  the  Legislature,  and  hence  it  was 

The  PRESIDENT  said  he  could.  advisable  that  that  body  should  be  composed  of  a 

Mr.  CHATFIELD:  Was  it  not  lost  by  a  tie  less  nurnber;  that  it  should  have  more  stabiiiiy  in 
vote  ?  its  organization,  and  should  have  some  members 

Mr.  RICHMOND:  No,  sir,  it  was  on  the  adop-  constantly  present  possessing  some  experience  in 
tion  of  the  whole  section.  .  past  legislation.  But  the  advantages  ol  the  single 

Mr.  PERKINS  called  for  the  reading  of  it  as  it  district  system,  and  shorter  terms,  it  was  believed, 
stood.  would  counterbalance  the  loss  of  the  other  ad- 

Mr.  STETSON:  It  does  not  stand  at  all.  ^vantages.  It  was  important  that  there  should  not 
is  stricken  out.  (Laughter.)  be  so  long  an  interval  as  four  years  from  the 

Mr;  TOWNSEND  did  not  want  the  question  e[eclion  Of  a  senator  until  the  expiration  of  his 
taken  now.  They  could  amend  the  article  at  any  Office>  A  senator  might  entertain  opinions  con- 
time.  He  would  move  to  let  it  rest  at  present. —  trary  to  tne  we|i  known  wishes  of  his  constitu- 
They  could  call  it  up  by  and  by.  enfs  and  frequently  did  misrepresent  them.  He 

Mr.  STETSON  withdrew  his  motion  to  recon-  mighl  nave  seif}3n  designs,  contrary  to  the  public 
sider.  interests,  and  it  was  possible  he  might  be  corrupt; 

Mr.  CHATFIELD  moved  to  lay  the  article  on  and  jj  the  perjod  Of  four  years  were  to  stand  as  the 
the  table,  and  that  it  be  printed.  I  lerrn'of  his  office,  the  people  would  cease  to 

Mr.  BROWN  then  said  that  in  order  to  test  the  trouble  themselves  about  him;  or  they  would  in. 
sense  of  the  Convention  as  to  the  propriety  of  dis-  dulge  in  useless  regrets  that  they  had  no  means 
patching  its  business  a  little  more  promptly,  he  Qf  reacnmg  him  till  the  term  of  his  office  ex- 
moved  that  the  Convention  now  go  into  commit-  pjred_  gy  lessening  the  term  one-half,  and 
tee  of  the  whole,  and  take  up  Document  48,  on  adopting  the  single  district  system,  they  brought 
the  report  of  committee  No.  1,  (on  the  apportion-  lne  8eDator  more  immediately  within  the  knowl- 
ment,  &c.,  of  the  legislature.)  Agreed  to.  edge  and  observation  ot  his  constituents  and  more 

immediately  responsible   to  them.       The   people 

could  reach  him  if  they  desired,  sooner,  by  half, 

'  than  by  the  present  system,  and  still  they  pre- 


374 


served  the  essential  feature  ol  a  senate,  stability 
in  its  organization,  and  experience  in  one  por-- 
lion  of  its  members;  every  year,  too,  one  half  of 
them  would  come  in  fresh  trom  the  people,  and 
from  all  parts  of  the  state,  the  plan  being  to  take 
them  trom  alternate  districts,  and  hence  they 
would  annually  have  afresh  infusion  of  public 
sentiment,  intermingled  wiih  stability  and  ex- 
perience  in  the  Senate  of  the  State. 

Mr.  RICHMOND  said  he  would  move  to  strike 
out  two  in  the  1st  line,  and  insert  nine,  so  as  to 
increase  the  number  of  senators  from  thirty-two 
to  thirty-nine.  He  also  proposed  to  amend  by 
striking  out  two  in  the  2d  line,  and  inserting 
three,  to  make  the  term  of  service  three  years  in- 
stead of  two.  He  agreed  in  part  with  the  chair- 
man of  the  committee, in  reference  to  the  proprie- 
ty of  bringing  senators  oftener  before  the  tribu- 
nal of  public  opinion  ;  but  he  thought  a  change  of 
from  4  to  3  years,  was  a  pretty  big  change  and 
would  be  sufficient  for  all  practical  purposes,  es- 
peciallv  as  it  would,  with  his  other  amendment, 
be  accompanied  with  other  advantages.  His  pur- 
pose in  increasing  the  number  of  senators  from 
thirty-two  to  thirty-nine,  was  not  so  much  to  have 
a  larger  body,  as  to  do  more  equal  justice  to  all 
parts  of  the  state  in  the  distribution  of  senators. 
On  looking  over  the  report  of  the  committee  and 
comparing  it  with  the  map  of  the  State,  he  had 
come  to  the  conclusion  (although  he  would  give 
the  committee  credit  for  having  done  the  best 
they  could  in  reference  to  the  particular  number 
of  which  the  Senate  was  composed,)  that  great- 
er justice  would  be  done  to  the  largest  number  of 
counties  by  increasing  the  number  to  thirty-nine. 
He  had  prepared  an  apportionment  to  demon- 
strate this  position;  but  not  expecting  this  sub- 
ject to  be  taken  up  to-day,  he  had  it  not  at  hand. 
He  would  however  produce  it  hereafter.  Gen- 
tlemen might  be  a  little  frightened  at  his  propos 
ed  inciease  of  7.  It  might  be  supposed  that  by 
an  increase  of  seven  senators,  there  would  be  a 
startling  increase  of  expense.  But  on  this  point 
he  wished  them  to  bear  in  mind,  that  it  was  un- 
derstood that  the  Senate  was  not  to  meet  as  a  court 
of  errors  two  or  three  times  a  year  hereafter,  and 
charge  fees  for  travelling  and  constructive  jour 
nies  as  they  always  do  now  (laughter.)  He  would 
show  the  advantages  of  this  by  and  by. 

Mr.  CHATFIELD  must  vote  against  this 
amendment,  in  order  to  get  at  a  better  one  which 
he  intended  to  offer;  and  after  the  vote  was  taken 
on  this,  if  it  should  fail,  he  would  offer  one  which 
would  authorise  the  legislature  to  increase  the 
number  of  Senators  not  to  exceed  48  ;  at  any  time 
after  enumeration  of  the  inhabitants. 

Mr.  RICHMOND  thought  that  his  objection 
was  one  which  would  weigh  much  with  the  peo- 
ple—the public  would  expect  them  definitely  to 
settle  the  number  in  this  convention.  It  shoulc 
be  definitely  fixed  here.  As  to  the  term  of  three 
years,  the  committee  would  perceive  that  it  was 
a  number  which  would  afford  facilities  for  elect- 
ing annually  precisely  one-third,  three  times  lc 
being  39.  He  had  taken  that  number,  because  h< 
could  find  no  other  number  that  would  so  wel 
answer  that  purpose,  and  by  which  the  popula 
tion  would  be  so  equally  represented  ;  and  it  was 
desirable  to  get  an  equality  of  senatorial  repre 
sentation  as  near  as  possible  without  dividing 


ounties.  It  was  the  only  just  division,  as  he 
would  show  by  and  by,  when  he  had  his  schedule 
here. 

Mr.  CHATFIELD  said  there  must  be  a  re-or- 
ganization of  every  Senate   district  once   in  ten 
ears ;  and  that  was  why   he  would  allow   the 
change  to  be  made  from  time  to  time. 

Mr.  RICHMOND  insisted  that  the  number 
ihould  be  definitely  fixed  now  by  them,  and  in- 
serted in  the  Constitution.  His  plan  was  equita- 
)le  and  based  on  a  ratio  of  60,000  population. 

Mr.  BURR  said  he  should  oppose  the  amend- 
ment, although  he  was  in  favor  ultimately  of  in- 
creasing the  number  of  Senators.  He  should  vote 
n  favor  of  the  proposition  of  the  gentleman  from 
Otsego,  (Mr.  CHATFIELD)  which  as  a  humble 
member  of  committee  No.  1,  he  had  offered  in 
hat  committee. 

Mr.  WHITE  said  New- York  city  was  entitled 
o  one-eighth  of  the  representation  in  the  Senate. 
3e  was  opposed  to  the  amendment,  to  change  it 
rom  32  to  39,  as  by  that  plan,  injustice  would  be 
done  to  New- York  city ;  she  being  entitled  to 
one-eighth  of  the  representation.  He  cared  not 
whetherthe  number  was  fixed  at  32,  or  40,  or  48, 
or  any  number  that  would  do  justice  to  New- York. 
If  it  was  designed  to  cut  that  city  off  from  a  Se- 
nator, let  gentlemen  say  so  ;  but  39  would  not  do 
ustice  to  that  city. 

Mr.  TAGGART  said  New- York  would  have  5 
under  that  apportionment,  as  the  ratio  was  60,- 
000  ;  so  she  would  have  her  share,  and  a  little 
over. 

Mr.  RICHMOND  :  New- York  lacks  6,000  in- 
habitants of  the  requisite  number. 

Mr.  A.  W.  YOUNG  hoped  the  Convention 
would  favor  the  proposition  of  the  gentleman 
from  Genesee,  (Mr.  RICHMOND.)  He  wished  the 
number  to  be  increased.  He  believed  that  in 
few  of  the  other  States  was  there  as  great  a  dis- 
proportion between  the  Senate  and  House  of  Re- 
presentatives as  in  this  State.  In  some  States  the 
Senate  was  half  the  size  of  the  popular  branch. 
He  believed  the  people  would  be  satisfied  with 
an  increase,  and  thirty-nine  was  quite  few  enough. 
There  was  now  an  inequality  in  the  representa- 
tion of  some  districts  of  10,000  or  12,000  too 
many  or  too  little.  If  they  could  arrive  at  a  grea- 
ter equality  in  representation  by  having  30  or  40 
or  more,  he  thought  that  would  be  a  strong  reason 
for  increasing  the  number  of  Senators  ;  and  he 
hoped  this  plan  would  be  adopted. 

Mr.  WATERBURY :  Why,  there  is  no  use  in 
all  this  fuss ;  there  is  the  Congressional  Districts 
all  cut  out.  Why  do  you  not  rush  right  into 
them,  and  take  hold  of  them,  already  made  to 
your  hand  ?  (Laughter  ) 

Mr.  RUSSELL  called  for  a  division  of  the  ques- 
tion, so  that  the  vote  might  be  first  taken  on  the 
number  of  senators;  he  v\as  in  favor  of  this,  but 
not  of  the  extent  of  the  term  of  office  ;  39  was  a 
good  number. 

Mr.  TALLMADGE  inquired  if  it  was  intended 
to  propose  any  change  in  the  number  of  the  mem- 
bers of  Assembly  ? 

Mr.  W.  TAYLOR  replied  in  the  negative. 

Mr.  TALLMADGE  wished  to  continue  thirty- 
two  as  ihe  number  of  senators;  and  he  wished  that 
the  four  year  terra  should  be  continued  If  this 
government  should  be  assailed,  and  its  liberties 


375 


invaded,  it  would  certainly  come  in  moments^  of 
popular  excitement  and  frequent  elections.  The 
present  number  of  32  multiplied  by  4,  gives  a  ra- 
tio eq'ial  to  128,  the  number  <>t  members  of  the 
A-i.-mbly  ;  and  that  reason  influenced  the  Con- 
vention <  f  1821,  instead  ot  letainmg  the  number 
tit  125,  ot  which  the  Assembly  once  consisted. — 
There  were  originally  four  districts  returning 
eight  senHtou-  each;  but  the  districts  were  divi- 
ded, making  eight  with  lour  senators  each,  4  times 
8  being  32,  and  4  times  32  made  128,  the  number 
of  the  other  house.  This  was  the  mathematical 
•  •umber  and  reason  for  their  action  on  this  point. 
He  was  opposed  to  too  largea representative  body, 
because  great  numbers  led  to  disorder  in  the  woik 
of  legislation.  When  such  a  body  is  much  swel- 
led, it  must  lead  to  great  confusion,  even  with  this 
body  of  but  128  members,  with  the  continued  en- 
croachments of  conversation  with  each  other, writ- 
ing letters.and  send  ing  off'  packages.and  the  talking- 
ot  members  to  their  friends,  it  -vas  almost  impos- 
sible lor  them  to  do  their  business;  and  he  thought 
there  would  be  great  wisdom  in  adhering  to  the 
number  as  it  now  stands  in  both  houses,  for  if  they 
depart  from  32  senators  they  would  be  likely  to 
depart  from  128  Assemblymen. 

Mr.  PENNIMAN  said  that  he  was  in  favor  of 
increasing  both  the  number  of  Senators  and  Re- 
presentatives ;  and  that  if  no  other  member 
should  ofier  such  an  amendment,  he  would  offer 
it  himself.  The  present  division  of  Assembly 
Districts  does  not  at  all  allow  of  a  fair  or  proper 
representation  of  counties,  as  may  be  seen  from 
their  position.  Many  parts  of  the  country  are 
very  vafairly  represented.  In  too  many  places 
there  are  large  portions  of  population  unrepre- 
sented. In  Richmond,  Putnam,  and  Rockland, 
there  is  an  excess  of  only  12  or  13,000;  but  in 
Genesee,  Orleans,  and  Wyoming,  the  fractions 
are  about  equal  to  a  member.  As  to  an  increase 
of  Legislators,  there  was  no  difficulty.  A  large 
body  could  always  transact  business  better  anc 
quicker  than  a  smaller  one.  Look  at  New  Hamp- 
shire, with  some  220  or  130  Representatives.  So 
in  Massachusetts, — when  Maine  belonged  to  her 
there  were  several  hundred  ;  and  they  despatch 
business  with  great  rapidity,  and  so  in  this  House 
— we  do  business  quicker  when  a  large  numbe 
is  present,  than  when  there  is  only  a  small  num 
ber. 

Mr.  BASCOM  had  at  times  been  impatient  a 
the  dilatory  proceedings  of  this  body,  but  he  nov 
regretted  the  disposition  he  thought  he  saw,  t 
press  on  the  subject  under  consideration  to  a  vote 
without  that  consideration  and  discussion  that  it 
importance,  in  his  judgment  demanded.  Th 
question  of  representation,  how  large  in  proper 
tion  to  the  constituency,  how  apportioned  an 
how  designated  or  elected,  must  always  remai 
questions  of  first  importance  in  a  representativ 
government,  and  questions,  he  trusted,  not  to  b 
settled  in  this  body  without  careful  deliberation 
Without  having  had  any  opportunity  for  the  ne 
cessary  examination  and  consideration  of  the  sub 
ject  that  he  hoped  others  might  have  improvec 
he  had  no  wish  to  enter  at  large  into  the  debat 
which  he  hoped  would  be  had,  but  he  was  wi 
ling  to  avow  himself  in  favor  of  a  liberal  increas 
of  representation  in  both  branches  of  the  legisla 
ture.  He  would  hardly  be  satisfied  with  less  tha 


irty-eight  in  the   upper  branch.     Most  of  the 

ther  States  had  provided  much  larger  represen- 

tion  than  we  had.     The  framers  of  the  Consti- 

ution  of  1777,   seemed  to   contemplate   a  much 

arger  representation  than  provided  by  the  Con- 

itution  of  1821.     The  limits  by  the  Constitution 

1777,  were   one   hundred  for  the   Senate  and 

hree   hundred   for  the  House,   and  the  framers 

ould  hardly  have  anticipated  the  increase  of  po- 

ulation  that  has  become  matter  of  history.     The 

eport  of  the  committee   provides  for  continuing 

le  representation  deemed  sufficient  in  1821,  for 

t  least  half  a  century.     Would  gentlemen  con- 

ider  the  actual  increase  of  the  constituency  up 

>  the  present  period,  and  that,  that  must  be  an- 

cipated  during  the  existence  of  the  Constitution 

re  are  framing  ?     The   purity  of  legislation  re- 

;uired   an  increase  of  the  upper  branch.     How 

lany  important  propositions  had  been  adopted  or 

'efeatedby  seventeen  men  in  a  full  Senate,  and 

y  a  smaller  number  when  the  Senate  was  not 

ull ;  too  small   a  number  to  settle  the  destinies 

nd  interests  of  this  great  State.     He  should  op- 

jose  the  number  proposed  by  the  gentleman  from 

ienesee,  in  the  hope  that  when  the  matter  came 

o  be  duly  considered,  a  larger  number  of  the  Se- 

late  would  be  agreed  upon. 

Mr.  PERKINS  had  not  been  in  the  Convention 
or  several  days,  and  was  not  prepared  to  give  his 
•iews  at  length  on  this  subject,  at  present.  He  was 
if  opinion,  that  a  moderate  increase  of  the  number 
if  members  of  the  Senate  and  Assembly,  would 
ie  both  necessary  and  satisfactory,  but  he  did  not 
hink  a  very  large  increase  would  be  either  desi- 
able  or  acceptable.  Perhaps  it  would  be  well  to 
dothe  the  Legislature  with  a  discretionary  power 
o  increase  the  number  of  Senators,  so  that  there 
should  not  be  less  than  32  nor  more  than  48 
elected  ;  and  that  the  members  of  Assembly  shall 
not  be  less  than  144,  or  more  than  192.  He  was 
also  in  favor  of  a-  term  of  three  years  instead  of 
wo,  for  the  reasons  assigned  by  Mr.  Taylor. — 
As  the  Senate  occupied  the  position  of  an  adviso- 
ry branch  of  the  Legislature,  the  members  should 
lave  some  experience  in  legislation,  and  they 
would  not  get  enough  in  one  or  two  years.  But 
f  one  half  were  to  go  out  every  year,  this  design 
would  measurably  fail.  The  plan  of  the  com- 
mittee required  great  disproportion  in  the  appor- 
tionment. There  would  be  a  difference  in  the 
population  of  the  districts  of  about  23,000. — 
Some  districts  have  an  excess  of  16,000,  and  others 
a  deficit  of  16,000.  So  great  a  disproportion 
should  not  be  sanctioned  by  the  Convention,  un- 
less it  was  absolutely  required.  He  trusted  we 
were  not  here  to  arrange  districts  with  a  political 
object  in  view.  Some  inequalities  must  exist. 
But  such  great  inequalities  must  be  avoided,  by 
altering  either  the  number  of  Senators,  or  the 
number  of  the  districts.  We  then  should  be  care- 
ful how  we  set  an»example  which  might  be  gross- 
ly abused  by  some  future  legislature,  and  we  may 
find  in  times  of  great  party  excitement  that  dis- 
tricts may  be  so  divided  as  to  give  only  one-third 
of  what  another  has.  But  if  we  divide  the  State 
into  12  districts  with  36  senators  or  16  dis- 
tricts with  48  senators,  then  there  will  be  a  unity 
of  feeling  in  the  districts ;  the  senators  will  be 
divided  into  three  classes  and  the  people  will  be 
able  to  express  their  feelings  and  to  vote  for  • 


376 


senator  annually.  If  the  proposition  of  the  gen- 
tleman from  Genesee  prevails,  then  only  one -third 
of  the  voters  of  a  district  can  be  heard  in  any  one 
year  at  the  polls,  or  in  the  Senate  on  any  great 
question,  and  this  certainly  is  not  in  accordance 
with  democratic  doctrines.  He  would  move  that 
the  number  should  not  be  less  than  36  or  more 
than  48. 

Air.  TILDEN  hoped  the  amendment  would 
not  prevail.  It  proposed  that  the  term  of  the  Sen- 
ators should  be  of  three  years  duration.  If.  with 
this  term,  the  single  district  system  were  adopted, 
but  one  third  of  the  people  would  vote  at  any  one 
election  for  Senators.  This  he  considered  to  be  a 
very  great  delect.  The  theory  of  the  Senate  is 
that  it  represents  the  judgment  of  the  people  in 
successive  years,  which  must  concur  in  legisla- 
tion. Each  year,  there  came  to  it  accessions  of 
members  im'using  into  it  the  popular  sentiment 
prevailing  at  the  time,  not  absolutely  controll- 
ing but  influencing  its  legislation ;  a  sentiment 
coming  not  from  a  third  of  the  localities,  but 
from  the  whole  people  now  in.  He  regarded  it 
as  extremely  desirable  that  this  branch  of  the  leg- 
islature  should  annually  hear  trom  their  constit- 
uents, and  from  all  their  constituents.  He  con- 
sidered it  extremely  desirable  that  the  attention 
of  the  electors  throughout  the  whole  State  should 
be  annually  turned  to  the  doings  of  the  Senate. — 
He  agreed  that  it  was  necessary  to  lessen  the  size  of 
the  Senatorial  districts  ;  and  to  biing  the  repre- 
sentatives nearer  lo  the  local  constituencies  by 
which  they  are  elected.  But  he  could  not  consent 
to  disregard  other  objects,  to  violate  other  prin 
ciples  still  more  impoitant.  He  was  not  willing 
to  depart  from  that  wise  and  salutary  usage  which 
gives'a  voice  to  all  the  people  of  the  State  every 
year  in  both  branches  of  the  legislature.  This 
principle  is  not  compatible  with  the  single  dis- 
trict system,  unless  the  senatorial  term  is  re- 
duced  to  a  single  year,  which  this  Convention 
evidently  does  not  design  to  do.  It  seemed  to  him 
wise  to  construct  the  Senate  with  reference  to 
all  these  objec:s.  Increase  the  number  to  forty, 
reduce  the  term  to  two  years,  and  form  twenty 
districts,  in  which  halt  of  the  Senators  will  be  ai 
ternately  elected-  This  would  be  a  wise  and  fair 
comproaiise  between  the  principles  which  ought 
to  be  embraced  in  the  structure  of  the  Senate.— 
He  spoke  without  much  consideration  of  the  de- 
tails. He  threw  out  the  suggestion  now,  because 
the  proposition!,  under  discussion  involved  the 
principles  of  the  whole  system. 

Mr.  STRONG  could  not  see  that  the  objection 
was  correct;  that  only  one-third  would  vote  if 
we  had  it  for  three  years,  and  only  one-half  it 
we  had  it  for  two  years.  The  idea  that  this  propo 
sition  cut  off  the  right  of  the  people  tu  vote,  was 
strange.  All  of  the  people  could  vote  erery  year 
He  should  vote  in  favor  of  the  motion  to  strike 
out  and  to  increase  the  number  of  Senators. — 
They  could  put  in  any  number  the  committee 
could  agree  upon.  He  could  see  no  force  in  the 
reasoning  of  the  chaiiman,  that  the  Senate  should 
be  just  one  fourth  as  numerous  as  the  Assembly 
nor  that  a  small  body  would  be  a  greater  check 
upon  the  Assembly  than  a  larger  one.  He 
thought  the  reverse  of  this  would  be  found  to  be 
true.  A  small  number  of  Senators  would  not  be 


o  good  a  check  lo    hasty  and    inconsiderate   leg- 
slation  as  a  larger  one. 

Mr.  CHATFIELD  said  he  did  not  mean  now  to 
ebate  this ;  but  that  if  this  amendment  prevailed 
t  might  be  necessary  to  refer  back  this  report  to 
he  committee  for  the  purpose  of  completing  the 
apportionment,  if  the  number  of  members  should 
e  changed,  and  the  single  district  system  retain- 
ed ;  or  so  to  alter  it  as  to  leave  this  matter  to  the 
egislature.     He  wished  it  left  to  the  legislature 
o  determine  what  the  number  shall  be  ;  provided 
t  be  not  more  than  48.     There  were   in  some 
Bounties   fractions   as    large  as    16,000,    and   in 
iome  a  deficiency  of  that  amount.     He  enumerat- 
ed various  counties  in  which  these  disproportions 
existed.     Now,  he  wished  these  fractions  reme- 
died ;  and  if  this  cannot  be  done  in  any  other  way, 
ic  was  willing  to  go  back  to  the  present  system, 
"t  was  not  fair  to  cut  off  so  large  a  portion  of  the 
eople  from  any  representative,  and  if  the   sin- 
gle district  system  cannot  be  agreed  upon  without 
his  gross  unfairness,  then  he  certainly  preferred 
he  present  system  of  8  districts,  and  4  senators  to 
each. 

Mr.  W.  TAYLOR  said  that  he  had  already  re- 
)lied  to  the  proposition  of  the  gentleman  from 
3-enesee,  (MR.  RICHMOND)  but  other  suggestions 
lave  been  made,  to  which  he  wished  to  reply  so 
s  to  place  himself  and  the  committee  right.  He 
and  the  committee  regretted  the  existence  of  these 
rregularities,and  if  they  could  have  been  remedi- 
ed without  violating  the  principle  laid  down,  they 
The  co 


have  done  so.  They  could  be  remedied, 
should  it  be  determined  to  cut  up  counties  or  de- 
jart  from  the  rule  that  the  districts  should  consist 
of  contiguous  territory.  The  committee  thought 
his  would  be  unadvisable.  They  determined  not 
:o  cut  up  counties;  or  to  make  districts  of  coun- 
ties not  contiguous.  They  believed  that  these  prin- 
ciples should  be  maintained.  He  believed  if  any 
reform  had  been  called  for  by  the  people  it  was 
;he  single  district  system.  But  he  could  show 
low  the  inequalities  could  be  remedied.  For  in- 
stance, Dutchess  and  Columbiaavere  put  togeth- 
er, making  a  large  excess,  while  Rensselaer  stood 
alone,  with  about  an  equal  deficiency.  Now  cut 
Columbia  in  two  and  you  would  make  two  pretty 
even  districts.  Or  place  Schenectady  on  to  Rens- 
selaer, and  then  you  would  about  equalize  the 
districts.  So  Richmond  might  be  placed  with 
Suffolk  and  Queens,  leaving  Kings  to  stand  alone 
and  be  almost  equal  to  it.  But  all  these  were  not 
contiguous.  But  gentlemen  would  find,  take  any 
number  they  please— 39,  40  or  48 — they 
would  find  equal  difficulty  in  getting  rid  of  these 
excesses  and  deficiencies.  Gentlemen  might  go 
to  work  and  make  a  district  to  suit  themselves 
very  well  at  first,  but  as  they  progressed  into  the 
state,  they  would  be  involved  an  much  greater  dif- 
ficulties. The  committee  had  made  their  divi- 
sion, because  it  was  the  most  convenient  one. — 
There  would  be  a  still  greater  inequality  in 
the  aggregate  in  39  Senators  than  in  32. — 
The  committee  had  tried  40,  and  also  48;  and 
they  found  in  the  aggregate  that  there  was  far 
greater  inequality  in  tho?e  numbers  than  in  32. — 
The  gentleman  from  Genesse  (Mr.  RICHMOND) 
says  his  ratio  is  60,000;  now  with  39  it  should  be 
61,528  ;  divide  by  that  and  it  will  make  a  material 
difference  in  his  results.  The  committee  had  ex  • 


377 


amined  this  very  carefully.  In  some  points  their 
r.'pori  was  lift  as  it  should  be  ;  but  at  the  proper 
lime,  he  would  show  how  the  defects  could  be  re- 
im-died.  Columbia  and  Dutchess  showed  the  grea- 
:ccessj  but  you  cannot  put  them  to  any  other 
counties  contiguous  t'j  them  without  making  a 
larger  excess.  And  it  you  divide  them  you  would 
afford  room  for  inhoducing  the  bad  system  of  ger- 
rymandering for  political  purposes.  He  believed 
the  Convention  did  not  wish  to  leave  this  to  the 
legislature  And  if  gentlemen  presented  a  plan 
lie  '.vishid  them  to  present  a  whole  plan  and  not 
abstiftct  propositions. 

Mr.  HARRIS  said  that  he  did  not  feel  any 
great  degree  of  anxiety  about  this  question,  yet 
he  should  vote  in  favor  of  the  proposition  of  the 
gentleman  from  Genesee,  (Mr.  RICHMOND.)  He 
would  not  greatly  increase  the  number,  but  seven 
would  not  be  an  objectionable  increase.  He 
would  not  divide  counties ;  he  would  prefer 
rather  some  inequalities  in^  representation,  be- 
cause such  were  our  associations  in  counties  that 
he  apprehended  the  people  would  prefer  that  they 
should  not  be  divided.  He  liked  the  plan  just  in- 
troduced by  the  gentleman  from  Genesee  (Mr. 
RICHMOND,)  because  the  slight  examination  he 
had  given  to  it  had  satisfied  him  that  by  fixing 
that  number  of  senators,  they  should  be  able  to 
accommodate  a  greater  number  of  counties  with 
separate  senatorial  representations.  But  under 
the  report  of  the  committee,  only  five  counties 
could  be  made  separate  senatorial  districts,  while 
by  adopting  thirty-nine  as  the  number,  they 
might  have~one-third  of  the  districts  made  up  of 
•arid  of  the  remaining  two-thirds, 
with  .  vception.  the  senatorial  districts 

won!  >!p  of  only  two  counties  each. — 

ranklin  alone  would  be  the 
of  which  he  had  spoken.  Those  three 
would  form  a  district,  and  by  this  there  would 
not  be  such  great  inequalities  in  the  representa- 
tion ;  which  was  an  important  point  and  worthy 
of  attention.  He  was  decidedly  in  favor  of  bring- 
ing the  representation  as  nearly,  home  to  the 
people  as  was  practicable  ;  and  when  they  could 
form  senatorial  districts  by  single  counties  he 
thought  it  would  be  desirable  that  it  should  be 
done,  even  though  there  might  be  some  inequal- 
ities in  the  ratio  of  representation.  Since  the 
discussion  had  i  0:1  he  had  taken  up 

the  report  of  the  committee,  and  he  had  selected 
.(•s  in  which  the  plan  of  the  gentleman 
-ee,  (Mr.  RICHMOND,)  might  be  car- 
ried out,  if  they  should  agree  on  having 
thirty-nine  senators.  He  found  that  single 
districts  might  be  made  of  Kings,  Albany, 
Rensselaer,  St.  Lawrence,  Oncida,  JcL'er- 
son,  Onondaga,  Monroe,  Otsego,  Erie,  Orange, 
Oswego,  and  Cayuga.  Double  districts  might  be 
made  out  of  the  following  counties  : — Dutchess 
and  Putnam,  Steuben  and  Chemung,  Suffolk  and 
Queens,  Westchester  and  Rockland,  Ulster  and 
Sullivan,  Columbia  and  Greene,  Delaware  and 
Schoharie,  Saratoga  and  Schenectady,  Washing- 
ton and  Warren,  Fulton  and  Montgomery,  Her- 
kimer  and  Lewis,  Chenango  and  Broome,  -Madi- 
son and  Cortland,  Tompkins  and  Tioga,  Seneca 
and  Wayne,  Ontario  and  Yat.es,  Livingston  and 
Allegany,  Genesee  and  Wyomi.  •*•  and 

• 


York  and  Richmond  would  have  between  them  5 
senators.  He  did  not  say  this  was  the  best  division 
that  could  be  made.  There  may  be  very  great 
inequalities  in  it ;  but  he  had  merely  drawn  it 
out  whilst  sitting  there  ;  and  believed  it  would 
be  much  more  satisfactory  to  the  people  generally 
than  the  report  of  the  committee. 

Mr.  RUSSELL  agreed  entirely  with  the  gentle- 
man (Mr.  HARRIS).  His  views  were  entirely 
sound,  and  they  rested  on  a  sound  basis.  The 
committee  have  made  a  very  great  mistake  in  lim- 
iting the  number  of  senators  to  32.  It  produces 
very  great  inequalities  and  great  unfairness.  It 
throws  a  very  large  fraction  of  excess  where  smal- 
ler counties  are  united.  The  injustice  tails  chief, 
ly  on  these.  He  had  drawn  out  a  table  of  theae 
deficiencies.  Thus: 

Erie,  deficient  of  rep.  population  6,314 

Monroe,          do                   do  11,399 

Onondaga,     do                  do  7,566 

Rensselaer,    do                   do  16,314 

Oneida,  with  a  surplus  of  3,711 

Smaller  counties  united  in  single  districts  pre- 
sent large  excesses,  as 


Cayuga  and  Wayne,  an  excess  of 
Madison  and  Oswego,         do 
Dutchess  arid  Columbia,     do 


14,547 
11,837 
16,077 


By  adopting  forty  as  the  number  of  Senators, 
twelve  counties  may  each  constitute  a  single  dis- 
trict, with  a  very  small  excess  or  deficiency,  ex- 
cept in  two  counties,  Oneida  on  the  one  hand  and 
Otsego  on  the  other. 

Erie,   excess  of  8,671 

Monroe,          do  3,536 

Onondaga,     do  7.419 

Oneida,  do  18,696 

JeftVrson,       do  2,635 

Kings,  do  1,611 

Albany,          do  8,582 

Dutch'ess  with  a  deficiency  of  8.724 

St.  Lawrence,  do  1,374 

Otsego,  do  10,239 

Steuben,  do  9,229 

Rensseiaer,  do  1,329 

The  smaller  counties  can  easily  be  arranged  in 
single  districts.  He  strongly  desired  to  see  some 
plan  adopted  so  as  to  give  to  each  district  as  near 
as  possible  the  precise  amount  of  representa- 
tion it  ou^ht  to  have  and  to  make  all  equal. — 
There  can  be  no  doubt  that  extending  this  num- 
ber to  39,  40  or  upwards,  one-third  of  them  would 
be  composed  of  entire  counties,  without  any 
great  inequality,  and  then  the  smaller  counties 
could  be  combined  into  districts  much  more  favor- 
ably. It  could  be  done  also  more  satisfactorily  by 
40  senators  elected  i^  20  double  districts;  one  to  be 
chosen  each  year,  So  that  all  the  people  would 
every  year  vote  for  a  senator  instead  of  one-half 
one  year,  and  another  half  the  next  year,  which 
would  undoubtedly  be,  looking  at  its  practical 
working,  mischievous  in  its  tendency.  If  we  adopt 
this  system  of  half  voting— one  year,  one-half  of 
the  population,  and  the  next  year  the  other  half, 
but  half  would  vote.  This  must  be  obviated.  He 
agreed  in  the  principle  that  the  Senate  should  be 
increased,  possessed  as  it  was  of  so  much  power. 
Forty  would  be  the  number  he  should  prefer  in 
consequence  of  convenience  of  alloting  the  dis- 
tricts. 

Mr.  NICOLL  said  the  great  question  il  appear, 
fd  to  him  WHS  one  of  !>rmriv»)«» — w^rMi-i  nf 


378 


nearly  to  the  great  principle  of  popular  represen- 
tation or  not.  The  other  was  a  mere  question  of 
convenience.  He  was  prepared  to  vote  lor  forty 
if  that  was  sufficient.  He  was  however,  fully 
aware  of  the  difficulties  of  getting  an  equal  appor- 
tionment. Mr.  N.  pointed  out  the  inequalities  in 
the  apportionment  under  the  report  of  the  com 


December,  the  close  of  the  political  year,  one- 
half  of  the  Senators  would  go  out,  and  an  equal 
number  remain.  Was  that  providing  a  sta- 
ble form  of  Government  ?  He  thought  not. — 
It  would  strike  from  the  Senate  its  principle  of 
popular  representation.  It  would  be  but  a  "  ride 
and  tie"  system.  Mr.  S.  explained  that  in  new 


mittee,  particularly  in  relation  to  the  city  of  New   countries  of  the  west  where  horses  were  few,  it 
York.     We  should  take  cognizance  of  the  pecu-    was  customary  for  two  men  in  travelling,  to  ride 
liar  character  of  our  population — what  to-day  is  j  alternately — the  other  walking.     This  was  what 
an  agricultural  district,  may  to-morrow  be  a  dense- 
ly populated  one.     This  should    be  carefully  ex- 
amined.    He  concurred  in  the  remarks  of  his  col- 
league, and  insisted  on   the  proposition  being  so 
amended  as  to  enable  the  people  of  the  whole  dis- 
trict to  pass  judgment  on  their  senators   in  every 
year. 

Mr.  RHOADKS  alluded  to  the  unanimous  call 
that  had  come  up  from  the  people  for  an  amend, 
ment  of  the  constitution  in  this  particular  of  sin- 
gle districts.  But  with  the  present  arrangement 


was  called  "  ride  and  tie."  He  hoped  that  the 
system  would  not  be  adopted  here.  He  conceded 
there  was  a  demand  for  single  districts,  but  had, 
in  all  the  discussion  that  had  taken  place  on  this 
subject,  this  objection  been  considered.  He 
thought  not.  By  an  increase  of  the  number  of 
Senators  to  40,  there  might  be  an  approximation 
to  equality.  By  forming  twenty  districts,  and 
putting  two  Senators  in  each,  classifiying  them,  so 
that  one  should  be  elected  every  year,  stability  • 
would  be  attained,  and  then  also  the  popular 

of  the  members  of  Assembly  and  Senators,  (he  will  from  all  part  of  the  state,  would  reach  the 
people  have  been  perfectly'  satisfied, — he  had  |  Senate  every  year.  The  whole  people  would 
seen  no  call  for  a  change.  If  we  should  j  then  be  heard,  and  the  expression  not  left  to  be 
increase  the  number  to  39  it  would  of  course  j  controlled  by  mere  accident.  Another  reason, 
involve  the  necessity  of  increasing  the  Assem-jMr.  S.  had  for  desiring  an  increase.  It  would 
bly.  He  was  for  letting  well  enough  alone,  |  tend  to  increase  the  number  of  members  of  As- 
and  for  leaving  the  Assembly  as  it  was. —  j  sembly,  which  he  also  desired.  There  was  great 
We  should  provide  our  government  so  as  to  en-  inequality  of  representation  there  also.  There 
sure  among  the  people  a  respect  for  all  its  j  were  such  things  as  bodies  of  the  people  standing 
departments.  Although  it  could  not  be  conceal-  |  in  an  unequal  position,  for  a  long  time,  and  not 
ed  however  that  the  senate  as  a  judicial  body  had  making  it  a  subject  of  complaint,  because  they 


So  with 
the    one 


fallen  into  disrepute  somewhat,  yet  throughout 
our  State,  it  was  found  that  the  people  always 
had  a  greater  respect  for  the  smaller  bodies — the 

Senates.     So  for  instance  with  the  Senate  of  the    this    being   an  opportunity   to  correct  the 
United  States  and  why  ?    Because  in  a  small  body  I  they  looked  now  for  that  correction.      Mr.  S.  re- 
there   was  more  decorum  and  deliberation.     He  I  ferred  to  the  fact   that  Clinton   Co.  with  an  ex- 


could  see  no  remedy  at  hand  for  it. 
certain  counties  of  this  State,  and 
he  represented  was  of  that  description.  But 

-L     evil, 


therefore  hoped  it  would  not  be  desired  to  change 
the  present  number. 

Mr.  STETSON  thought  there  was  a  variety  of 
good  reasons  why  the  Senate  should  be  increased. 
As  the  number  now  stands,  it  often  happens  that 
the  position  of  a  single  Senator  was  of  too  much 
importance.  By  increasing  the  number  of  Sena- 
tors, that  evil  would  be  diminished.  That  was 
one  reason  for  it.  Another  is,  that  the  number 


cess  often  thousand  or  thereabouts,  v\as  entitled 
to  no  larger  representation  than  other  counties 
whose  deficiency  was  equal  to  or  exceeded  that 
amount.  This  could  be  obviated  by  increasing 
the  number  of  members  of  Assembly.  As  it  is 
now,  he  urged  that  those  counties  were  unjustly 
placed  in  that  position  where  they  had  a  large  un- 
represented faction,  and  but  one  member,  where- 
as other  counties  had  the  same  with  but  half  the 


of  members  should  be  in  some  sort  of  proportion  j  population.     This  was   in   opposition  to  the  fea. 
to  the  ^increase   of  population.     Another  is,  that  |  tares  of  republican  representative  Guven 


the  people  demanded  the  formation  of  single  Se- 
nate districts.  The  opinions  he  entertained,  he 
had  long  held,  and  he  felt  it  his  duty  to  express 
them  here — let  their  fate  be  as  it  may.  The  sub- 
ject had  been  already  alluded  to,  and  that  was 
the  very  extraordinary  features  in  the  plan  of 
the  committee  by  which  the  expression  of  public 
opinion  is  not  come  to  the  Senate  as  a  whole,annu- 
ally,  from  the  people,  but  in  an  accidental  frag- 
mentary form.  There  should  be  a  general,  uni- 
versal relation  between  the  members  of  that  body 
and  the  people.  He  was  so  irreconcilably  op- 
posed to  that  feature,  that  he  did  not  see  how  to 
go  for  single  districts,  unless  by  duplicate  in- 
crease, so  as  to  give  a  Senator  to  be  elected  in 
each  district  every  year.  If  single  districts  pre- 
vailed, and  the  number  should  be  fixed  at  32, 
then  he  should  go  for  a  single  or  a  two  year  term, 
in  order  to  meet  this  to  him  controlling  objection. 
The  report  sacrifices  the  representative  feature 
to  the  stability  of  the  system.  On  the  last  of 


it  was  an  approximation  to  the  rotten  borough 
system  of  England.  Was  it  proper  that  Clinton 
county  should  he  compelled  to  stand  with  a  frac. 
tion  often  thousand  unrepresented  and  New  York 
be  allowed  to  have  her  fraction  divided  on  her 
delegation  as  a  whole,  instead  ot  on  each  of  the 
single  members  ?  He  urged  that  there  should  be 
some  change  in  this. 

Mr.  RICHMOND  considered  that  this  system 
of  inequality  would  always  exist  as  long  as  the 
present  apportionment  existed..  Mr.  R.  went  on 
to  refer  to  vhat  he  considered  the  inequalities  of 
the  present  system  Of  representation — some  coun- 
ties having  large  fractions  of  surplus  and  others  of 
deficit.  It  was  to  obviate  these  discrepancies 
that  he  went  for  increasing  the  number  ot  Sena- 
tors, and  so  long  as  thai  end  was  attained  he  cared 
not  for  what  plan  he  went.  But  if  they  were  not 
increased,  then  he  should  go  for  single  assembly 
districts.  If  the  same  principle  was  applied  to  Or- 
leans and  Wyoming  who  were  now  allowed 


379 


but  t«o  members  between  them,  as  was  applied 
to  New-Yoik,  and  the  fractions  made  up  on  each 
representation,  New- York  would  have  had  a  less 
number.  Mr.  R.  referred  to  other  counties  as 
showing  the  inequality  that  existed. 

Mr  W.  B.  WRIGHT  as  a  member  of  the  com- 
mittee,with  the  general  features  of  the  report,most 
cheerfully  concurred.  It  was  only  in  the  details 
of  it  thai  he  felt  the  necessity  of  disagreeing  with 
them.  The  popular  will  had  been  unequivocally 
and  fully  expressed  in  favor  of  single  districts 
and  he  had  proposed  the  number  of  48  districts. 
The  Senate  as  was  often  observed,  was  too  large 
and  unwieldy  for  a  court,  and  too  small  (or  legis- 
lation. It  was  generally  believed  that  its  judicial 
powers  would  be  abrogated,  and  this  was  a  ques. 
tion  that  should  be  considered  in  constituting  it 
hereafter.  In  most  of  the  Constitutions  of  the  states 
other  than  in  New  England,  the  proportion  or  the 
Senate  was*  in  the  ratio  to  the  Assembly 
one-third,  and  in  others  one-half.  Another  rea. 
son  he  had  for  (he  increase  was  that  the  represen- 
tation should  be  brought  nearer  to  the  people. — 
Some  had  supposed  that  the  report  of  the  commit- 
tee presented  the  fairest  and  most  equal  apportion- 
ment that  could  be  obtained.  In  his  opinion  the 
great  difficulty  in  making  an  equal  apportionment 
arose  with  the  larger  counties— and  that  \vouldbe 
obviated  by  an  increase  of  population — as  it  was 
provided  that  whenever  a  county  was  large  enough 
it  should  be  divided  into  two  districts  He  (Mr. 
W.)  saw  no  reason  why  these  county  lines  should 
be  so  particularly  observed  to  the  disadvantage  of 
the  great  principle  of  equality  of  representation. 
And  he  was  in  favor  of  breaking  up  the  system, as 
it  would  tpnd  to  break  up  the  petty  party  regen. 
cies  that  congregated  at  the  capital  of  every  coun- 
ty. But  a  more  equal  plan  of  representation  could 
be  attained  than  this  report.  By  the  report,  sev- 
enteen senators  would  be  elected  by  a  population 
60,000  less  than  that  which  elected  only  17.  This 
evil  should  certainly  be  a\oided,  and  he  was  for 
any  proposition  that  should  etfectualy  attain  that 
object.  Mr.  W  proceeded  to  point  out  further 


dispensed,  and  this  would  save  a  great  share  of 
the  present  expense  of  the  legislature,  with 
perhaps  equal  to  its  increase  through  an  increase 
of  members.  It  had  been  said  that  the  people  had 
not  asked  for  this  increase.  Mr.  W.  apprehended 
if  the  Convention  had  decided  to  adopt  only  such 
amendments  as  the  whole  people  had  asked  for, 
that  it  had  better  adjourn  at  once.  But  he  urged 
that  the  people  had  asked  for  it— a  universal  sen- 
timent has  prevailed  in  the  southern  section  of 

the  state,  in  favor  of  the  increase  of  the  Senate. 

He  was  opposed  to  the  rule  adopted  in  some 
states,  of  allowing  the  legislature  to  fix  these 
numbers.  He  would  have  it  settled  here.  He 
also  denied  that  an  increase  of  the  Senate  involv- 
ed an  increase  of  the  Assembly.  He  could  not 
see,  where  the  necessity  was  consequently  in- 
volved. Still  he  was  willing  to  go  with  the  gen- 
tleman from  Clinton,  for  the  increase  of  the  num- 
ber of  members  of  Assembly,  if  that  would  tend 
to  break  up  the  disparity  of  representation  exis- 
ting. He  was,  therefore,  for  increasing  the  num- 
ber to  48,  without  reference  to  county  lines  But 
if  the  matter  was  left  to  the  legislature  in  making 
the  apportionment,  they  would  preserve  these 
county  lines,  so  far  as  possible,  but  he  would  not 
make  it  obligatory  for  them  so  to  do  without  re- 
ference to  the  great  principle  of  equality  of  popu- 
lar representation. 

Mr.  A.  W.  YOUNG  said  if  a  member  in  con- 
stituency felt  an  interest  in  this  question,  it  must 
be  himself  and  those  he  represented.  His  coun- 
ty had  a  fraction  of  nearly  12,000,  about  equal  to 
the  whole  population  of  some  single  counties  re- 
presented here  by  single  members.  Mr.  Y.  then 
referred  to  the  inequality  of  representation,  as 
presented  in  the  following  instances  :•— Chau- 
taque,  under  the  present  apportionment,  has  a 
representative  for  every  22,991  of  her  representa- 
tive population ;  Queens,  one  for  every  26,837- 
Ulster,  for  every  22,814;  Clinton,  for  27,115- 
Essex,  for  23,451;  Cortland,  for  24,861;  Broome' 
for  24,266  ;  Seneca,  for  24,243 ;  Oswego,  one  for 


discrepancies  between  1  he  districts,  as  provided  in  every  23,400;  and  Wyoming,  a  single  member 
the  plan  of  the  committee.  More  than  one  third  for  ab°ut  30'500  !  Whlle  on  the  other  hand,Rich- 
of  the  Senate  would  be  represented  by  counties  |  mond  nas  a  representative  for  12,425;  Putnam, 
embracing  cities,  s>  that  11  senators  would  be  I for  I2.842;  Rockland,  for  12,209;  Warren,  for 

13,711 ;  Greene,  one  for  every  15.136  ;  Genesee, 
one  for  every  ?14,070 ;  and  several  others,  in 
which  there  is  nearly  the  same  inequality.  He 
thought  a  principle  could  be  arrived  at  far  more 
equitable  than  this,  and  he  could  not  see  how,  in 
any  way  than  by  increasing  the  Senate.  He  be- 


elected  by  ihem.  And  yet  it  was  pioposed  that 
the  larger  fractions  should  exist  in  the  rural  pop- 
ulation, where  no  rapid  increase  was  to  he  expect- 
ed. For  example,  five  from  the  city  arid  county 
of  New  York,  one  from  the  county  of  Kings,  em- 
bracing the  city  o[  Brooklyn,  one  from  thn  coun- 


ty of  Albany,  embracing  the  Capital,  one  from  the 


lieved  an  increased  representation  to  be  more  desi- 


county  of  Oneida,  embracing  the  city  of  Utica,  one!  rable'  and  more  safe  to  the  people.  If  danger 
from  the  county  of  Monroe,  embracing  the  city  of  I  was  to  "e  apprehended  from  corruption,  it  would 
Rochester,  one'from  the  couniy  of  Rensseiaer,  em-  be  lessened  by  this  increase.  He  believed  that 
bracing  th«  city  of  Troy,  and  one  from  the  coun-  the  Pe°Ple  desired,  in  any  event,  a  more  equal 
ty  of  Buffalo.  While  these  counties  have  now  representation,  and  the  larger  a  number  in  a  body, 
but  a  small  exccfs.  ami  »n  many  instances  a  <ie-  ! tne  more  equal  the  representation.  And  this  was 
ficienry,  the  agriculture  counr'ips  v  t-p-  fmmii  to  I  wnat  tne  counties  who  were  injured  by  the  pres- 
havethe  largest  dr-ficiertcy.  Mr.  W.  urged  that  ent  system,  were  here  contending  for.  He  believ- 
the  balanc-'  srn.uid  be  the  other  way,  the  .igncul-  ed.  tn.at  the  representation  in  point  of  population 
tural  population  being  about  stationary,  and  that  of  ftoui  state,  was  less  than  any  other  of  the  states 
of  the  CiMes  greatly  and  constantly  mcn-asin^.—  in  the  Union,  and,  as  the  population  was  still  in- 
the  matter  "  of  expense  in  settling  this  great !  creasing,  that  would  seem  alone  to  render  a  slight 
question  of  equality  of  representation,  was  not  j  increase  of  representation  desirable.  Whether 
worthy  of  account.  Mr.  W.  said  that  the  Court  of! tnat  was  soor  not» the  otner  reasons  given  were 
Errors  in  its  present  form,  would  undoubtedly  be  !  fully  sufficient. 


380 


Mr.  R.  CAMPBELL  Jr.,  said  that  it  was  not 
his  intention  to  have  addressed  the  committee  at 
this  time  upon  the  subject  under  consideration. — 
He  should  not  have  done  so  had  not  the  discussion 
upon  a    particular    section    involved  the    whole 
subject   of  the    report,  and  had    not  he  regarded 
the  number  of  Senators  proposed    to  be  stricken 
out  of  the  section  (to  use  a   mathematical  phrase) 
as  an  indicia  which  was  to  govern  in  the    forma- 
tion of  all  the  subsequent  sections  of  the  report. — 
The    delegate    from    St.   Lawrence  has  inform- 
ed this    committee  that  the   standing  committee 
who    submitted  this   report,  had    made  a    great 
mistake    in   limiting   the   number  of  Senators  to 
thirty  two,   and   in  undertaking  the  formation   ot 
single  senate  districts.     He  (Mr.  C.)  apprehend- 
ed that  he   should   be  able   to  satisfy  that  gentle- 
man that  the   mistake   was  in  another   quarter.— 
He    said  that    if  any  one    fact  was    prominent  in 
the  discussions  of  the  people  which  preceded  this 
Convention,  it  was  the   complaint   made   of  mis- 
representation under  the    present  system  of  elect- 
ing  senators.    And  who  ever   would    take    the 
trouble  to  luok  into  the  proceedings  of  the  con- 
ventions nominating  candidates  for  a  seat  in  this 
House,  would  find  that  in   nearly  all  of  such  con- 
ventions a  resolution  was  passed  in  favor  of  single 
senate  districts.     He  said    he   regarded   himself 
as  instructed  by  his   constituents  to  support   the 
single  district  system,  for  the  election  of  senators, 
and  he  also  considered  it  as  a   measure   clearly 
indicated    by    popular   will.      The  district  sys- 
tem  as  now  organized,   he  said,  was  a  system  of 
misrepresentation    and    not    of  representation.— 
Some   of   the    present    senate  districts   embrace 
a  territory  of  fiom  200  to  300  miles,  and  it    was 
obvious  that    not  one   elector    in  100,   could  be 
acquainted    with  the   qualifications    or    opinions 
of  their  senatorial  candidate.     The  standing  com- 
mittee, No.  1  had  theretore  felt  bound  in  accord- 
ance with  public  sentiment   to  report  in  favor  of 
the  single  district  system.     He  enquired  what  was 
the  object  and  duties  of  the  Legislature,  but  to 
reflect  the  will  of  the  people  and    protect  then 
interests  in  the   making  of  laws,  arid   how  could 
this  be  done  unless  the  candidate  and  the  consti- 
tuent were  brought  nearer  together  than  by  the  pre- 
sent system,   so   as  to  enable   the  constituent   to 
judge  of  the  qualifications  and  fitness  of  the  can- 
didate to  discharge  the  duties  of  the  office  of  Sena- 
tor and  to  say  whether  such  candidate  would  be  a 
proper  person  to  be  consumed  their  representative 
in  the  law  making   power  of  government.    He  said 
it  has  been  objected  to  this  report  that  it  contem- 
plated only  a   biennial  election   of  senators,  and 
that  by  such  elections   a  portion  of  the   senators 
would  be  placed  beyond  the  re;.ch  of  the  people, 
and  that  the  sentiment  of  but  a  portion  of  the  peo- 
ple of  the  State  would  be  expressed  in  the  Legis- 
lative   halls.     He    would    enquire    how    it    was 
now.     Were  not  three  <>f  the  four  senators  from 
each  senatorial  district,  beyond  the   reach  of  the 
popular  will,  and  are  they  not  often   found  to  be 
the  very  antipodes  in  politics  ot  the  newly  elected 
incumbent   tresh    from   the  people   and,  equally 
opposed    to   the  representatives  in   the    popular 
branch  of  the  Legislature.  He  said  that  he  regarded 
the  present  system  of  large  districts,  or  any  other 
than  single  senatorial  districts    as  not  calculated  to 
carry  out  the  system  of  representative  government 


which  supposes  every  elector  to  express  his  views 
on  public  matters  in  the  vote  he  gives.    And  how 
could  this  be  done  unless  you  bring    home   to  the 
people  a  knowledge  of  the   candidate.     He   said 
the  people  regarded  it  as  but  a  poor  boon  to  vote 
for  a  candidate  for  senator   of  whom   they  never 
heard,  and  whose  qualifications  for  the  office  were 
entirely  unknown  to  them.     He  (Mr.  C.)  averred 
that  if  thesmglefdistrict  system  was  adopted  by  the 
committee  that  then  a  better  or  more  equal  appor- 
tionment could  not  be  made   than  by   deciding  in 
favor   of    the   present  number  of  districts,   (32) 
which    number    would    leave   as  small    a  num- 
ber   of    electors     unrepresented,     and     produce 
as  much  equality  of  representation  as  any  other 
number.    He  believed  that   no  division  could  be 
found    that    would    produce    greater    equality 
in  representation, — there  was  no  way  of  avoiding 
inequality  to  some  extent,  but  by  the  division   of 
counties  for  that  purpose.     He  said  he  felt  upon 
the  subject  of  the  integrity  of  counties — as  did  the 
state  rights  party  upon  the  subject  of  States.  He 
said  the  counties  were  a  sort  of  local  government 
by  themselves ;  possessing  very   general  and  ex- 
tensive powers  of  legislation,  and  criminal  juris- 
diction; they  were  invested  with  power  to  legis- 
late  in    relation   to  county    property,  upon   all 
claims  against  the   counties   and  towns  within 
their  territory — of  the  assessment  and  collection 
of  taxes, — of  highways  and  bridges — in  relation  to 
the  county  poor,  and  upon  various  other  matters. 
That  the  'courts   of  the   counties  had   exclusive 
jurisdiction  over  all  crimes  committed  within  the 
county    lines,   and  the    town   and   county   offi- 
cers  had  the  exclusive  control  of  all   elections 
within  the  county,  and  the  citizens  of  the  coun- 
ties must  pay  the  expenses  of  the  same.    He  said, 
that  if  county  lines  were  broken  over  in  the  for- 
mation of  Senate  districts,   and  the   integrity  of 
counties  disregarded— that  it  would  lead  to  great 
confusion  in  the  financial  affairs  of  the  counties. 
He   enquired  how   it  would  be   in    case  a  few 
towns  were  taken  from   one   county,  and  affixed 
to  another  for  the  purposes  of  a  Senatorial  district? 
Who  would  pay  the   expenses  of   the    election 
within  such  towns  as  were  to  be  set  off;  and  who 
elect  the  board  of  county  canvassers,  and  in  case 
a  crime   or  crimes  were  committed  at  such  elec- 
tion, who  would  defray  the  expenses  of  an  indict- 
ment and  trial  for  such  offence,  (and  of  all  other 
indictments,   he  said  they  were  the  most  vexa- 
tious and  expensive?)      To  what  jail,  should 
the  inspectors   of  election   in   such  district  send 
persons  who  were  guilty  of  disorder  at  the  polls  ? 
Surely  these   expenses  should  not  be   borne  by 
those  who  had  no  interest  whatever  in  the  elec- 
tion, as  would  often  be  the  case,    if  county  lines 
were  disregarded  in   the    forming   of  Senatorial 
districts ;  and  particularly  if  the  same  towns  were 
also  formed  into  or  made  a  part  of  an  assembly 
district  embracing  towns  in  different  counties. — 
He  said  that  some  of  these  objections  could  be 
obviated  by  proper  legislative  enactment ;  but  it 
was  contemplated  to  give  still  further  legislative 
powers  to  counties,  and  if  so  they  would  become 
a  separate  sectional  government,  whose  jurisdic- 
tion and  territory  could  not  be  arbitrarily  invaded 
without  the   most  serious  consequences,  ending 
in    an    entire    breaking    up    of    the   system    of 
county   legislation.     He    said    that   he   WLS    not 


381 


iho  particular   apportionment  report- 
ed   that   if   any  member  could    show  how 
riot  could  be  altered  for  the  better,  he  would 
be  in  favor  of  the   change,  but  that  it  was  easier 
:k   about   a   lair  and   equal   apportionment, 
!  o   make  one.      He  said  that  the  honorable 
member  from  Sullivan  (Mr  WRIGHT)  had  advo- 
single   assembly  districts,  upon  the  ground 
that  they  would  tend 'to  break  up,  or  break  down, 
•ntral  power  of  the  counties.     He  (Mr.  C.) 
ir.it  no  such  effect  would  be  produced 
by  single   assembly  districts,  and   that  members 
.  would  in  many  cases  misrepresent  their 
counties  or  districts.     He  said,  to  illustrate,  sup- 
;  off  a  few  towns  from  the  county  ofRens- 
;•  to  the  county  of  Albany,  leaving  the  balance 
e  electors  in  the   latter  county,  and  then  in 
',  he  vexed  question  of  the  bridge  was  to  come 
up.  would   not  the  representative,  if  from   Al- 
bany  county,   misrepresent    his   constituents   in 
Eeaaselaer  county?    Most  assuredly  he  would. — 
,id  the   interests  of  counties  were  such  as  to 
\4  require  a  county  representation,  and  not 
•tional    representation — he   could  not    see 
how     single    assembly  districts    would    destroy 
the  central  influence  of  the  politicians  ;  the  peo- 
ple of  their  county  would  still  have  to  go  to  the 
county  seat  to  transact  all  their  county  business — 
to  attend  the   meetings  of  the  local  legislature, 
;  o  hold  county  Conventions.     And  if  the  po- 
litici;>ns  residing  at  the   centre,  had   any  undue 
political   influence,  it  could    be   as  well  exer- 
:  rough  sepal-ate  districts,  as  any  other  system 
of    representation.     He  (Mr.  C.)  said  that  if  the 
committee  wished  to  preserve  the  peace  and  har- 
mony ot  c Aunties  in  their  social  and  political  re- 
lation •>,  they  should  not  set   one   section   at  wai 
wii'h  another,   as   would   be   done    by   adopting 
the  single   district  system,  for  members    of  as- 
sembly.    He    said  it  might  be    well  to  divide 


the  assembly   districts   of 
York,    whose  delegation 


the  county    of  New- 
had   an     overwhelm- 


ing  influence  in  the  halls  of  our   State   Legisla- 
ture ;  but  beyond  that  he  would  not  go.     He  saic 
one  honorable  member  had  challenged  the  com- 
mittee  to  show  how   the  division   of  towns  anc 
counties  in  the   formation   of  election   districts 
would  encourage  gerymandering.     To  him  (Mr 
C.)   it  was   self  evident   that  such  would  be  th< 
result,  for  if  a  town  or  county  was  to  be  dividec 
either  of  its  parts,  it  would  in  the   presen 
of  political  parties,  require  no  great  skill  t( 
favor  the   party  who   should   have  the   power  t< 
make   the   apportionment,   and  to   give  to   sucl 
jority  of  the  Senators   and  members  o 
.     He  (Mr.  C.)  was  satisfied  that  there 
ts  in  the  system  reported  by  the  stand 
:;miittee,   but  he  would   support   it  until  a 
one  wus  presented.    If  we  adopt  the  single 
stem,  then   lie   believed    no  better  or 
I  apportionment  of  Senators   could  be 
in   the  report.     And  by  necessity  we  must 
adopt   the   system  of  biennial  elections  of 


ton  —  or    the   election  of  a  part  of  the   Senators 
year,   in  the  manner  pointed  out  in   the  re- 
.  i-  \se  must  limit  the   term   of  the  office  of 
Sena:  or  to  one   year.     He   repeated   that  it  was 
very  easy  to  talk  about  a  fair  and  equal  represen- 


ur   former  Constitutions,  and   in  all  the   appor- 

ionments  of  the  members  of  the  Legislature   and 

f  Congrfes,   heretofore  made,  the  lines  of  coun- 

les  were  preserved  as  land  marks  that  were  not  to 

ie  infringed  upon,  —  and  he  (Mr.  C.)  apprehend- 

d  the  people  'would   not  sanction  any  system  of 

ipportionment  by  this  Convention  of  the  mem- 

ers    of    the    legislature   which     contemplated 

in  interference  with    the  local    government   of 

Bounties  as  now  established,  or  which  presented 

reat  inducements   to  fraud   in  the  formation   of 

Senate  and  Assembly  districts,  or  might  tend  to 

iolation  of  the  representative  system  of  govern- 

ment. 

Mr.  RICHMOND,  by  consent,  varied  his  mo- 
tion so  as  to  allow  the  question  to  be  taken  di- 
rectly on  the  motion  to  strike  out  32. 

Mr.  W.  TAYLOR  said  that  upon  examining 
the  proposition  of  the  gentleman  from  Albany  — 
(Mr.  HARRIS)  he  found  that  the  deficiencies  there 
were  larger  by  almost  3000  than  the  report  of  the 
committee.  Mr.  T.  went  on  to  refer  to  particu- 
lar instances  of  the  kind  in  the  proposition  of  Mr. 
H.  He  insisted  that  taking  any  of  the  members' 
propositions  that  had  been  suggested,  that  the  in- 
equalities in  the  apportionment  would  be  as  erreat 
if  not  greater  than  in  the  report  presented  by  the 
committee.  In  relation  to  the  largest  deficiency 
presented  in  that  report,  the  district  comprising 
Suffolk  and  Queens  —  he  would  move  to  add  Rich- 
mond to  it,  which  would  not  be  inconsistent  with 
the  principle  of  forming  a  district  of  contiguous 
territory.  Some  inequalities  must  exist  under 
any  proposition,  and  he  stood  justified  by  figures 
in  the  assertion  that  the  report  of  the  committee 
did  not  present  greater  or  even  as  great  deficien- 
cies as  in  the  plans  that  were  presented  by  the 
gentlemen  from  Albany  and  Genesee.  So,  if  the 
object  was  to  get  rid  ot  inequality,  gentlemen 
must  fall  back  on  to  thirty-two,  as  the  number.  _ 
If  it  was  proposed  to  increase  the  Senate  for  other 
reasons  than  to  secure  equality  of  representation, 
that  was  another  question  —  but  he  had  not  as  yet 
heard  any  reason  that  would  induce  him  to  go 
for  it.  Mr.  T.  said  that  he  had  taken  the  pains  to 
look  into  the  constitution  of  other  States,  with 
regard  to  the  relative  proportion  of  the  Senate  to 
the  Assembly,  and  he  found  tiiat  many  of  the 
States  had  a  far  greater  disproportion  "than  we 
had  in  this  State.  Defects,  so  far  as  n  •:„•;.  r<  led 
equality,  must  always  exist.  Mr.  T.  urged  -that  it 
could  only  be  avoided  by  breaking  up  town  and 
county  lines,  which  would  present  a  state  of 
tilings  with  which  neither  the  members  of  the 
Convention  or  the  people  would  ;.  He 

believed   that  the   inequalities   :  i,<}   in 

the  report,  would  be  found  to  be   much  less  than 
in  other  plans. 

Mr.  DANA  said  that  a  blind  man  on  heing  a<k- 
cd  ti  >\v  lie  was  able  to  vvuiu  sab  I  ,;  j,,,. 

he  alwa\s  put    his  cane    <  >e  ne 

had  labored  mure  and  talked  h>s 
v,i,;,i    (he  excess  and 


stfj.ped.     If  w 

we  taitrht  featfe  deleimin 


deficiency    oJ    a  system  might  be-. 


noi  i"    done  ,-o  nu\v. 
go    tor    any  number, 

-I'  equality  in 
a;ways  he 


but    that  could 
'hat  he  should 
ve  the 

.     Care  8ij(,ulcl 
to    regulate  (toe    excises  so  that 


I\!i  .  D. 
that    would 


laiion,  but  not  so'easy  to  make  the  apportionmeni  live  to  the  dis!;rolu)rlu) 

Without  dividing   county  hues.     He   said  that  m  j  l)U|allun.  u.iitss  he  could  see  a  more  rqual  reprel 


382 


senutiou  it)  some  other  plan,  he  should  g>>  to 
thir'y-two. 

Mr.  TALLMADGE  was  as  a  principle  in  favor 
of  retaining  the  representation  both  in  Senate  anc 
Assembly  as  it  is.  He  insisted  upon  equality  of rep- 
re^entation  as  ne*r  as  could  he  obtained  withoul 
dividing  county  lines.  He  was  opposed  to  an  in- 
crease of  number,  but  a  decided  advocate  for  sin- 
gle districts.  He  liked  four  years  better  for  the 
term  because  it  was  better  as  a  check  against 
hasty  and  excited  legislation.  He  would  have  a 
stable  body  in  the  Senate  that  was  not  to  be  influ- 
enced by  local  temporary  excitements — that  would 
not  be  influenced  by  anti-masonry  in  one  place, 
and  anti-rent  in  another.  In  the  ratio  of  repre- 
sentation there  were  counties  that  were  sinking 
and  others  that  were  growing  in  population. 
Therefore  he  insisted  that  the  deficiency  should 
be  as  against  those  increasing  counties.  In  mak- 
ing this  ratio,  if  there  must  be  a  surplus  this  con- 
sideration should  not  be  overlooked.  If  there 
was  to  be  any  deficiency,  it  should  be  in  those 
places  that  were  growing  rapidly. 

Mr.  WILLARD  moved  that  the  committee  rise 
and  report  progress.  Carried. 

And  the  Convention  adjourned. 

AFTEROON  SKSSION. 

Mr.  CH  ATFIELD  moved  that  the  roll  be  called. 

Forty-seven  members  present. 

Ultimately  87  members  appeared. 

Mr.  BROWN  moved  that  the  Convention  again 
resolve  itself  into  committee  of  the  whole,  on 
Mr.  W.  TAYLOR'S  report,  from  committee  No.  1. 

Mr.  WORDEN  said  that  he  would  make  a  mo- 
tion with  the  view  and  hope  of  expediting  the 
business  of  the  Convention.  They  had  been  all 
the  morning  occupied  in  discussing  merely  wheth- 
er they  should  have  32  or  39  Senators.  Now, 
they  had  much  better  settle  this  matter  before 
proceeding  to  dispose  of  any  other  portion  of  this 
article.  He  also  thought  that  the  reorganization 
and  apportionment  of  Senate  districts,  being  a 
single  question,  had  much  better  be  settled  in 
the  Convention,  where  the  previous  question 
could  be  used  to  put  an  end  to  an  otherwise  in- 
terminable debate.  He  was  about  to  make  a  sug- 
gestion which,  if  it  met  the  views  of  the  Conven- 
tion, he  believed  would  decide  this  question  much 
sooner  than  if  the  present  course  was  continued, 
and  he  had  no  reason  to  suppose  that  this  article 
might  not  be  disposed  of  this  afternoon.  It  would 
also  settle  the  course  which  wasjx>  be  taken  with 
many  other  reports.  He  would  move  to  discharge 
the  committee  of  the  whole  from  the  further  con- 
sideration of  this  article,  and  recommit  it  to  com- 
mittee No.  1,  and  instruct  that  committee  to  re- 
port a  section  that  there  shall  be  50  Senators — 
the  term  of  office  for  Senators  to  be  two  years — 
to  be  elected  in  single  districts  ;  that  there  be  150 
Assemblymen,  and  a  new  system  of  apportion- 
ment in  reference  to  the  Senators;  and  that  the 
Legislature  divide  the  assembly  districts  so  that 
one  assemblyman  shall  be  elected  in  each.  They 
could  then  take  the  question  on  the  highest  num- 
ber of  Senators  first;  and  these  two  questions 
settled,  the  rest  could  easily  be  got  along  with. 
He  threw  this  out  as  a  suggestion  merely.  He 
would  not  commit  himself  to  these  numbers — 
neither  did  he  wish  to  commit  any  body  else. 


Mr.  R  CAMPBELL,  JR.  believed  this  would 
HOI  fnswer  the  purpose  the  gentleman  (Mr. 
WORDEN)  designs.  In  either  case  there  will  be 
a  difficulty.  It  would  be  a  very  difficult  matter  to 
apportion  the  state.  They  may  commence  at  the 
bottom  of  the  state  and  get  along  to  the  middle  of  it 
pretty  well.  But  there  they  would  meet  with 
great  inequality  ;  now  it  is  better  to  pass  over  this 
2d  section — take  up  the  3d — then  so  divide  the 
counties  as  to  produce  the  least  inequality,  and  that 
will  settle  the  number  of  Senators  we  are  to  have. 
Arrange  the  districts  first,  with  the  greatest  equal- 
ity ;  fiom  this  point  the  number  of  Senators  ought, 
at  leas'  to  depend  ;  and  they  must  calculate  con- 
siderably and  fairly  on  this;  divide  the  districts; 
fix  them,  and  then  find  the  division  by  which  the 
t)tst  and  fairest  division  and  ratio  of  representation 
could  be  secured.  All  this  required  careful  en- 
quiry and  could  be  best  accomplished  in  the  Con- 
vention— not  in  committee  of  the  whole. 

Mr.  WORDEN  agreed  that  the  number  of  Sen- 
ators should  be  first  fixed  ,to  this  should  be  done  at 
the  start.  Cannot  we  settle  here  in  Conven- 
tion whether  we  will  have  30,  40,  or  50  Senators 
without  a  long  or  tedious  debate.  The  house 
could  decide  this  in  half  an  hour.  He  thought 
for'y  would  be  best — but  he  would  put  the  high- 
est number  first,  so  as  to  cover  the  whole  ground. 
In  committee  of  the  whole,  the  Chairman  cannor 
keep  members  up  to  the  direct  question  under 
discussion;  in  the  house  it  can  be  dona  by  the 
previous  question. 

Mr.  CH  ATFIELD  said  that  he  considered  that 
the  time  of  this  Convention  should  not  betaken 
up  in  the  discussion  of  the  question  of  apportion- 
ing the  State  into  Senate  districts.  A  month 
might  be  expended  in  this  way  without  the  least 
benefit.  This  had  better  be  left  to  the  Legisla- 
ture who  were  to  follow  us.  He  was  a  member 
of  the  Legislature  some  time  back,  when  the 
State  had  to  be  divided  into  Congressional  dis- 
ricts,  and  six  weeks  weie  consumed  here  upon 
hat  question  alone.  It  was  alvvavs  a  question  of 
nuch  difficulty.  He  moved  to  amend  the  motion 
of  Mr.  WORDEN,  so  as  to  recommit  the  2d  and  5th 
sections  of  the  report  only,  throwing  out  those 
which  referred  to  the  apportionment,  that  is  the 
2d  and  5th  sections,  and  then  proceed  to  discuss 
he  balance  in  committee  of  the  whole- 
Mr.  WORDEN  accepted  this  amendment,  and 
noved  to  re-commit  sections  2  and  5  to  commii- 
ee  No.,  with  instructions  to  report  a  new  ratio, 
&c. 

Mr.  CHATFIELD    said  that  he  would  strike 

ut  the    ratio  altogether.       He  did    not  want  the 

committee    to    setlle   the    apportionment.       We 

hould  decide  on    the   number  of  Senators   and 

Assemblymen  and  leave  the  Legislature  to  arrange 

he  apportionment. 

Mr.  BERGEN  moved  to  increase  the  Senators 
o  40 ;  and  to  have  128  Assemblymen. 

Mr.  CHATFIELD  moved  that  there  should  be 
48  senators. 

Mr.  MARVIN  said  they  had  better  leave  it  in 
•lank,  and  then  the  gentleman  from  Ontario  (Mr. 
VORDEN)  could  move  afterwards  to  fill  it  with 
.ny  number  he  pleased. 

Mr.  NICHOLAS  said  he  wanted  time  to  reflect 
>n  this  ;  and  particularly  on  the  number  of  sena- 
ors  and  the  districts:  he  suggested  to  Mr,  WORDED 


383 


that  he  should  withdraw  his  motion  for  the  pre- 
sent, and  allow  the  committee  of  the  whole  to 
pass  over  the  2d  and  5th  sections,  and  to  take  up 
the  6th  section  of  the  report,  which  had  no  con- 
nection with  the  subject  of  apportionment,  upon 
which  he  and  others  who  had  spoken  to  him  on 
the  subject,  were  not  prepared  to  act,  this  being 
one  of  the  last  reports  that  had  been  presented  to 
the  Convention. 

Mr.  WORDEN  agreed  to  this,  and  withdrew 
his  motion  ;  but  he  would  tell  his  colleague  (Mr. 
NICHOLAS)  that  unless  the  committee  got  on  a 
little  faster  than  they  had  done,  he  would  renew 
it  to-morrow.  Many  of  these  questions  ought  to 
be  decided  in  Convention  and  never  go  into  com- 
mittee of  the  whole. 

Mr.  NICHOLAS  then  moved  to  go  into  com- 
mittee of  the  whole  and  take  up  the  6th  section. 
Agreed  to. 

The  Convention  then  went  into  committee  of 
the  whole  on  the  report  of  committee  No.  1,  Mr. 
PATTERSON  in  the  Chair. 

ON  THE  ENUMERATION. 

The  report  was  passed  over  to  the  6th  section 
which  was  read,  as  follows  : — 

§  6.  An  enumeration  of  the  inhabitants  ef  the  State  shall 
be  taken  unler  the  direction  of  the  Legislature  in  the  year 
one  thousand  eight  hundred  and  fifty-five  and  at  the  end  of 
every  ten  yeais^thereafter;  and  the  said  districts  shall  be 
so  altered  by  the  Legislature  at  the  first  session  after  the 
return  oi  every  enumeration  that  each  Senate  district  shall 
contain,  as  nearly  as  may  be,  an  equal  number  of  inhabit- 
ants,  excluding  aliens,  paupers  and  persons  of  color  not 
taxed;  and  shall  remain  unalterrd  until  the  return  of  ano 
ther  ^numeration,  and  shall  at  all  times  consist  of  contigu- 
ous territory,  and  no  county  shall  be  divided  in  the  forma- 
tion of  a  :->eiate  district,  except  such  county  shall  be  enti- 
tled to  two  or  more  Senators. 

Mr.  CHATFIELD  wanted  to  know  upon  what 
grounds  the  committee  had  introduced  the  words', 
"excluding  aliens,  paupers, and  persons  of  color  not 
taxed  ?"  Why  were  they  to  be  excluded  from  the 
basis  of  representation.  He  should  likp  to  know  ; 
and  to  get  at  tr  is  point,  he  moved  to  strike  these 
words  out  of  the  section. 

Mr.  W.  TAYLOR  said  that  question  was  very 
fully  discussed  in  committee,  and  a  proposition 
was  there  made  to  insert  only  the  words  "  aliens, 
and  persons  of  d>]or  not  taxed,''  and  this  met 
with  a  iiood  deal  of  favor,  but  the  words  were 
found  in  the  present  Constitution,  and  although 
the  proposition  to  strike  out  found  some  favor 
they  were  allowed  to  remain  There  was  a  con- 
sideration in  favor  of  retaining  it,  in  the  fact  that 
in  the  city  of  New-York,  where  there  were  large 
numbers  of  aliens  landed  every  year,  an  influx  ot 
these  persons  might  make  a  difference  of  one 
member  of  Assembly,  and  the  next  year  that  same 
population  of  aliens  might  be  scattered  over  the 
country.  There  were  some  rights  of  proper'.y 
concerned  in  the  representation  of  aliens,  and  but 
for  the  reason  stated,  those  words  would  not  have 
been  retained.  Persons  of  color  not  taxed  and 
paupers  have  certain  rights  ard  might  be  con- 
sidered  entitled  to  representation;  they  a're  fit 
subjects  of  legislation,  and  ought  perhaps  be 
taken  into  the  account.  The  committee  had  left 
this  for  the  Convention  to  do  as  it  pleased  about 
it. 

Mr.  CHATFIELD  did  not  consider  this  a  good 
reason  for  retaining  the  language  of  the  present 
Constitution.  The  fluctuation  of  the  population 


of  New-York  city  was  affected  in  a  much  greater 
degree  on  the  commerce  of  that  city  and  on  the 
maritime  people,  who  are  constantly  changing, 
than  by  the  aliens  arriving  annually.  He  believ- 
ed that  the  basis  of  representation  should  be  upon 
the  entire  population.  The  tax  paying  class, 
whether  aliens  or  not  should  be  included  in  the 
basis  of  representation.  There  were  aliens  in 
other  parts  of  the  country  besides  New-York,  who 
were  interested  in  the  basis  of  representation, 
and  he  hoped  they  would  not  be  excluded  from 
partaking  of  their  rights  in  this  matter.  And 
why  should  they  exclude  persons  of  color  from 
the  basis  of  representation  ?  They  had  rights  to 
be  respected.  Aliens  who  hold  real  estate.  The 
aliens  are  a  greater  producing  class  than  the  na- 
tive born.  Again,  paupers  have  a  right  to  vote, , 
and  ought  to  be  included  in  their  basis  of  repre- 
sentation. Because  a  man  has  been  unfortunate, 
is  he  to  be  thus  excluded  ?  He  trusted  not.  He 
also  saw  no  reason  why  the  representation  should 
not  be  based  also  on  the  man  of  color — on  the 
whole  people.  His  county  would  be  one  of  the 
least  benefitted  by  making  this  class  the  basis  ; 
so  he  spoke  from  no  disinterested  motives,  but 
from  a  sense  of  justice  to  all. 

Mr.  BERGEN  sai'i  he  hoped  the  Convention 
would  do  justice  to  all  parties  concerned.  That 
they  would  take  as  a  basis  for  the  formation  of 
Senate  districts  the  actual  residents  who  formed 
the  natural  basis.  If  they  departed  from  this,  an 
arbitrary  basis  would  be  formed,  and  the  greater 
the  departure  the  more  arbitrary  and  unjust  it 
would  become.  Suppose  New  York  should  gain 
a  member  in  the  Assembly  by  including  aliens 
who  may  riot  have  fixed  residences,  is  that  a  good 
reason  for  depriving  otherportions  of  the  Staie  of 
their  just  rights— rights  which  they  ate  clearly 
entitled  to?  The  aliens  in  Kings  county  are 
nearly  all  permanent  ai.d  constant  residents  and 
they  are  continually  becoming  naturalized  cit- 
izens. Many  o(  them  have  resided  there  five 
years,  and  are  men  of  property,  many  are  females 
who  seldom  become  naturalized.  When  emi- 
grating trom  Europe  they  are  not  landed  there, 
and  consequently  do  not  so  assist  in  swelling  the 
population.  There  are  other  portions  of  the  State 
in  the  same  position.  The  General  Government 
in  fixing  the  basis  of  representation  includes  ail 
the  inhabitants,  thus  following  the  just  and  correct 
rule,  and  he  also  found  that  the  Stales  who  have 
lately  formed  new  constitutions,  including  even 
Rhode  Island,  do  the  same.  Under  these  cncum. 
stances,  he  hoped  that  the  Convention  in  founinK 
a  Consiilution  for  this  State,  tor  iVar  the  city  of 
New  York  might  gain  a  little  by  including  alien*, 
would  not  saciificea  just  and  correct  principle; 
one  by  whicti  the  county  ot  Kings  would  have 
14,000  of  h«-T  natural  population  obliterated  from 
the  basis  ol  representation,  and  one  which  would 
also  operate  nnj'isily  in  other  places. 

Mr.  W.  TAYLOR  said  that  it  was  proper  for 
him  to  state  that  lie  had  proposed  to  the  commit- 
tee to  sirike  out  the  words  "  paupers  and  persons 
of  color  riot  taxed,"  so  as  to  exclude  only  aliens 
from  the  basis  of  representation.  These  were  his 
own  personal  views.  He  thought  it  was  proper  to 
include  paupers  and  persons  of  color  .not  taxed. 
Many  who  are  paupers  have  been  in  better  cir- 
cu  stances,  have  been  useful  and  respectable  cit- 


384 


izens;  many  of  them  are  voters,  and  he  could  see  no 
good  reason  why  their  misfortune  should  exclude 
them  from  being  taken  into  account,  in  settling 
the  basis  of  representation,  or  why  this  unjust  dis- 
tinction should  be  made;  and  as  to  persons  of  co- 
lor not  taxed,  he  said  they  constituted  a  portion 
of  the  population  who  are  for  the  most  part  per- 
manent residents,  who  had  personal  rights  and 
interests  to  be  secured  and  protected  in  common 
with  others,  and  might  properly  be  included; 
they  were  so  included  in  many  other  states,  and 
in  some  of  the  southern  states  slaves  constituted  a 
portion  of  the  basis  of  representation.  The  honor- 
able gentleman  from  Otsego,  (Mr.  CHATFIELD,) 
had  inquired  what  reasons  were  assigned  in  the 
Convention  of  1821  for  this  provision  of  the  Con- 
stitution. Mr.  T.  said  in  answer  to  that  inquiry 
he  would  say,  that  he  believed  the  chief  reason 
assigned  was  that  without  it  the  large  cities,  and 
particularly  New  York,  would  have  an  undue 
share  of  representation.  He  stated  that  it  appear- 
ed by  the  last  census  that  the  whole  number  of 
aliens  in  the  state  was  164,717,  and  of  these  New- 
York  had  60,940 ;  there  were  42,321  persons  ot  co- 
lor; of  these  New- York  had  12,658  ;  and  971  rOS 
paupers,  of  which  New-York  had  1957;  making 
a  total  of  75,561,  of  these  people,  in  New- York 
alone.  This  was  more  than  one-third  of  the 
whole,  and  would  give  that  city  three  additional 
members  of  Assembly  and  one  Senator.  This  po- 
pulation to  some  extent  were  more  fluctuating  and 
'unsettled  than  others  ;  a  large  number  of  them 
are  annually  landed  in  the  city  of  New- York, 
many  of  them  remaining  there  for  a  time,  uncer- 
tain as  to  future  residence,  and  it  may  so  happen 
that  an  unusual  number  might  be  found  there  at 
the  time  of  taking  a  census,  who  might  be  em- 
braced in  the  enumeration,  and  perhaps  in  a  short 
time  be  scattered  over  the  state  or  in  other  states  ; 
and  many  land  in  the  country  and  remain  a  while, 
who  do  not  intend  to  make  this  their  permanent 
residence.  The  facilities  for  naturalization  are 
so  easy  that  it  is  at  all  times  available  for  such  as 
desire  it  to  become  naturalized  -citizens,  and  if 
they  decline  or  neglect  to  avail  themselves  of  this 
privilege,  the  presumption  is  that  they  feel  not 
that  interest  in  our  institutions  common  to  our 
citizens,  or  that  they  do  not  intend  to  remain  per- 
manently among  us.  And  thesefore  it  was  but 
proper  to  exclude  them  from  the  basis  of  repre- 
sentation ;  they  have  no  interest  in  our  laws,  and 
never  will  have.  It  would  be  unjust  to  include 
them.  He  did  not  at  all  object  to  paupers  and 
persons  of  color ;  these  classes  are  included  in 
the  basis  of  congressional  representation,  but  for 
very  different  reasons.  To  embrace  this  popula- 
tion in  the  basis  of  representation,  so  large  a  pro- 
portion of  which  is  found  in  the  city  of  New- 
York,  from  causes  which  would  be  permanent  in 
their  operation,  would  give  that  city  an  undue 
share  of  representation,  which  would  be  unequal 
and  unjust  to  other  parts  of  the  State.  For  these 
reasons  Mr.  T.  said  he  was  opposed  to  striking 
out  the  word  aliens. 

Mr.  0'CONOR  adverted  to  the  elemental 
principles  on  which  this  doctrine  of  representa- 
tion is  based.  We  had  established  as  a  basis,  not 
the  electors  but  the  inhabitants,  the  persons  sub- 
ject to  the  law,  who  were  to  be  governed  with- 
in the  district  which  elected  the  representative. 


We  have  included  all  the  non-voting  classes — 
and  with  great  propriety;  because  the  electors 
taking  part  in  the  government  in  the  particular 
district,  had  charge  over  them,  exercising  all  the 
duty  of  government  in  relation  to  them.  Aliens 
ought  to  be  included  with  the  rest,  because  all 
the  burthens  of  their  government,  so  far  as  these 
burthens  were  of  a  local  character,  such  as  police 
expenses,  &c.  fell  upon  the  electors  ofthe  district. 
The  gentleman  from  Onondaga  (Mr.  TAYLOR) 
had  treated  this  subject,  as  if  there  was  an  effort, 
by  including  aliens  in  the  basis  of  representa- 
tion, to  give  them  a  representation  here.  This 
was  not  so,  unless  the  gentleman  meant  to  say 
that  aliens  were  allowed  to  vote  in  New- York. — 
The  gentleman's  argument  proceeded  upon  the 
ground  that  aliens  might  be  naturalized,  and  that 
if  they  neglected  so  to  do,  they  should  not  have  a 
representation.  This  is  true,  but  it  proved  noth- 
ing here,  since  no  person  proposed  to  allow  them 
a  representation.  It  was  the  electors  of  the  dis- 
trict within  which  they  resided,  who  claimed  a 
voice  in  the  government  corresponding  with  the 
population  of  the- district.  The  large  number  of 
aliens  in  the  district  of  New  York, imposed  heavy 
burthens  upon  the  electors  to  maintain  the 
law  over  them.  In  all  the  districts  of  the  state 
there  was  a  class  of  non-voting  inhabitants  inclu- 
ded in  the  basis  of  representation — lunatics  and 
felons,  as  well  as  women  and  children.  Again, 
if  you  adopted  the  electors,  instead  of  inhabitants, 
as  the  basis  of  representation,  you  would  do  toN. 
York  measureably  another  great  piece  of  injus- 
tice— for  there  resided  many  families,  the  heads 
of  which  were  often  permanently  absent,  such  as 
sea-faring  men  and  others.  In  other  words  the 
relative  proportion  of  males  and  females  in  New- 
York  and  the  rural  portions  of  the  state,  would 
show  a  large  disproportion  of  the  latter  against 
New  York.  Without  claiming  for  aliens  a  right 
to  representation — for  they  had  no  right — but 
claiming  for  the  electors  of  New-York  a  right  of 
representation  corresponding  with  the  burthens 
cast  on  them — he  insisted  that  aliens  should  be 
included  in  the  population  which  was  to  form 
the  basis  of  representation.  As  to  paupers,  we 
in  New- York  had  a  still  stronger  right — for  in  ad- 
dition to  the  burthen  of  sustaining  a  police  to  re- 
strain them  from  violations  of  lawT,  we  had  the 
burthen  of  actually  maintaining  them — and  they 
could  not  be  deprived  of  the  right  of  voting,  if 
any  exclusion  whatever  was  to  be  introduced, 
paupers  clearly  should  not  be  excluded,  and  so 
as  to  persons  of  color  not  taxed.  The  latter  v>\uv 
excluded  because  they  did  not  exercise  the  elec- 
tive franchise.  In  that  respect  they  were  in  the 
condition  of  aliens,  and  all  the  burthens  incident 
to  the  existence  of  one  class  in  a  district  were 
incident  to  the  existence  ofthe  other.  And  the  dis- 
trict had  just  the  same  right  to  a  voice  in  the  coun- 
cils of  state,  in  proportion  to  the  number  thus  char- 
ged upon  it,  as  it  had  to  a  voice  in  proportion  to 
the  number  of  non-voting  women  and  children 
in  it.  Again,  persons^ of  color  not  taxed,  he  in- 
sisted, ought  not  to  be  excluded  from  the  basis  of 
representation  any  more  than  women  and  chil- 
dren. They  were  equally  members  of  society — 
equally  burthens  upon  the  electors.  He  objected 
to  this  exclusion  because  it  recognized  a  dci: 
that  had  bfrt)  rpp"d;a'« 


385 


taxes  was  the  circumstance  which  gave  a  man  a 
rUht  to  be  represented.  We  had  gone  far  beyond 
the  doctrine  ot  those  early  days  in  the  struggle  for 
civil  liberty,  when  it  was  claimed  that  taxation 
and  repreBen'ation  ought  to  go  together  We 
now  permit  persons  to  vote  who  not  only  did 
not  contribute  to  the  public  burthens,  but  who 
were  actually  maintained  by  the  state.  Why 
should  we  preserve  in  I  he  Constitution  an  appli- 
cation of  the  rule,  alter  having  abolished  the  rule 
itsell?  This  was  a  strong  additional  reason  for 
striking  oui  from  the  exception  "  persons  of  color 
not  taxed."  He  regarded  it  as  a  blot  upon  our 
Constitution.  He  took  it  also  to  be  the  last  de. 
gree  of  injustice  to  say  to  New- York,  because  you 
are  so  circumstanced  ihat  you  are  burthened  with 
the  greatest  number  of  paupers,  whom  you  must 
admit  to  an  equality  with  you  in  the  exercise  of 
the  electoral  righ',  still  you  shall  have  all  the 
burthens  consequent  upon  their  bein^  among  you 
and  yet  you  shall  not  be  allowed  a  voice  in  the 
councils  of  the  state,  corresponding  with  their 
number  as  a  part  of  your  population.  He  suppos- 
ed however,  there  would  be  little  objection  to 
striking  out  paupers  and  persons  of  color  not  tax- 
ed, because  it  would  give  but  a  slight  advantage 
to  New- York  over  other  parts  of  the  state.  But 
on  the  subject  of  aliens  he  anticipated  more  diffi- 
culty. And  on  a  question  like  this,  the  city  of 
New- York  being  mainly  interested  in  it,  her  del- 
egation stood  here  perfectly  at  the  mercy  of  the 
rest  of  the  state.  They  had  no  power  but  that  of 
expostulation — the  power  of  the  weak  against  the 
strong.  But  he  did  hope  that  whatever  jealousy 
might  exist  in  reference  to  the  represention  of 
the  city  here,  the  great  and  just  principle  which 
he  had  e ought  to  maintain,  would  prevail — and 
that  was  that  the  electors  of  each  district  should 
have  a  voice  in  the  councils  of  the  state  in  pro- 
portion to  the  number  of  inhabitants  in  each  dis- 
trict, and  the  consequent  burthens  that  fall  upon 
them — without  reference  to  the  question  whether 
they  were  electors  or  not.  Again,  he  contended 
that  the  aliens  in  question  were  not  transient  per- 
sons— for  transient  persons  were  not  included  in 
the  census.  He  did  deny  but  there  were  some 
resident  aliens  who  doing  business  in  New- York 
might  be  included  in  the  census,  who  yet  were 
properly  speaking  transient  persons,  or  foreign 
agents,  &c.  but  thai  WHS  an  extremely  sma  1  num- 
ber of  persons.  The  class  of  aliens  included  in 
the  census  was  mainly  composed  of  persons  as  per- 
manently domiciliated  here  as  the  natives.  Persons 
awaiting  the  five  year's  probationary  term  beinre 
natmalization  entered  into  it,  their  wives  and 
their  chiklren,  not  unfrequently  very  numerous, 
entered  into  it.  Women  ot  foreign  birth  perma- 
nently settling  m  the  country  scarcely  ever  be- 
came naturalized.  Women  do  not  u-ually  think 
of  political  matters  or  of  assuming  or  putting  off 
na'ion.,1  character.  These,  even  when  they  in- 
termarried with  imtive  citizens,  remained  aliens, 
and  were  included  in  that  class-  To  exclude  all 
the>e  prisons  fiom  the  basis  of  representation, 
was  unjust  and  improper.  He  did  not  claim  are. 
pre  entaiion  lor  iliens,  but  merely  that  they  should 
be  included  in  the  basis  ot  representation. 

Mr.  W.  TAYLOR  said  the  gentleman  had  based 
his  argument  on  the  supposition  that  he  (Mr.  T.) 
went  for  excluding  aliens  hereto  prevent  their  be 

25 


ing  represented.      His  position  wis  Hie)  should 
nof  form  a  part  of  the  basis  of  representation. 

Mr.  O'CONOR  did  not  doubt  Ihe  gentleman 
meant  to  present  this  matter  properly.  Mr  0  C. 
thought  that  the  matter  in  which  he  presented  it, 
tended  to  produce  an  impression  that  those  who 
went  for  striking  out,  wished  to  secure  for  aliens 
some  voice  in  our  legislative  halls — and  thai  he 
wished  to  repudiate. 

Mr.  WORDEN  said  that  it  by  striking  out  this 
provision,  it  would  result  advantageously  to  the 
persons  named,  he  would  be  inclined  to  go  for  if. 
But  he  thought  on  the  contrary  it  would  result  in  an 
encroachementon  the  political  rights  of  those  per- 
sons. All  conceded  that  the  true  basis  of  represen- 
tation was  the  electoral  body-the  voters.  And  why? 
Because  they  were  the  responsible  body— resoon- 
sible  for  the  acts  of  their  representatives.  That 
being  a  cardinal  principle,  we  should  as  near  as 
possible  have  reference  to  this  body  as  the  basis 
of  representation.  The  gentleman  conceded 
that  to  strike  out  this  proposition  would  be  to  re- 
ult  beneficially  to  the  city  of  New  York.  This 
population  in  that  district  was  as  one  to  six 
—in  the  rural  districts  from  one  to  thitty. 
So  it  would  enable  the  city  upon  that  accidental 
basis  to  have  a  voice  in  the  councils  of  the  State 
superior  when  compared  to  the  agricultural  coun- 
ties. The  voting  people  in  the  city  was  as  as  one 
to  six,  whereas  in  the  agricultural  counties  it  is 
less  than  one  to  five.  The  city  of  New  York  in 
that  respect  enjoys  greater  advantages  than  the 
country.  But  the  most  serious  objection  that  he 
had  to  it  was  that  it  was  radically  wrong  in  prin- 
ciple. It  raised  a  barrier  calculated  to  exclude 
these  persons  who  of  right  ought  to  enjoy  it.  As 
a  general  thing,  he  held  that  all  men  who  submit 
themselves  to  the  government  under  which  they 
live,  with  an  honest  intention,  ought  to  have  a 
voice  through  the  ballot  box.  Every  intelligent 
man  should  enjoy  that  privilege.  But  if  you  en- 
able them  to  be  the  basis  of  representation 
then  you  build  up  an  interest  to  exclude  them. 
Take  for  instance,  the  federal  Constitution.  The 
fact  of  making  the  slaves  the  basis  of  representa- 
tion was  in  itself  an  almost  unconquerable  barrier 
to  the  emancipation  of  the  slaves.  These  per- 
sons who  thereby  enjoy  this  exclusive  power  will 
not  extend  it  to  those  to  whom  it  is  denied. 

Mr.  CHATFIELD  asked  it  the  black  popula- 
tion of  the  north  were  not  the  basis  of  represen- 
tation in  the  Congress — and  if  Slavery  was  abo- 
lished, the  blacks  would  not  continue  also  to  form 
the  basis  of  that  representation  there  ? 

Mr.  WORDEN  said  that  might  be  true,  but  it 
found  no  good  ground  of  argument  in  the  view  in 
which  he  was  considering  this  question.  This 
very  exclusion,  and  their  being  the  basis  of  rep- 
resentation, without  being  voters,  tended  to  ex- 
clude the  people.  To  apply  the  principle — 60,- 
000  voters  in  New  York  send  here  16  members. 
Give  them  a  right  to  send  twenty  on  the  70,000 
tha'  are  now  disfranchised,  and  they  will  not 
move  a  step  towards  the  extension  of  a  participa- 
tion in  these  rights  to  those  70,000.  Inasmuch 
as  New  York  has  the  honor  of  making  the  first 
attempt  at  excluding  aliens  from  the  rights  of  ci- 
tizenship, he  would  not  introduce  any  principle 
here  that 'would  excite  that  feeling,  to  raise 
again  the  hydra-head  of  persecution — to  exclude 


380 


again  those  persons  from  citizenship.  It  would 
have  the  effect, to  make  this  sixty  thousand  use 
their  exertions  to  prevent  the  seventy  thousand 
from  uniting  with  them  to  elect  the  four  additional 
members.  He  would  amend  this,  so  as  to  make 
the  basis  the  electoral  body — at  all  events,  he 
would  not  put  a  provision  in  the  Constitution  that 
would  exclude  any  portion  from  the  rights  of  ci- 
tizenship. Such  would  be  the  effects  of  this  pro- 
position. 

Mr.  LOOMIS  said  this  part  of  the  article  which 
proposed  to  exclude  persons  of  color  not  taxed, 
carried  out  a  doctrine  which  we  did  not  recognize 
in  this  age.  It  was  the  qualified  electors  ef  the 
State  who  constituted  the  government — who  com- 
prised about  one-fifth  of  the  whole.  They  ex- 
cluded entirely  the  voice  of  the  rest  in  the  govern- 
ment. In  that  view  of  the  subject,  to  carry  out 
the  principle,  those  electors  should  every  one 
have  an  equal  voice  in  the  government.  There- 
fore by  giving  to  a  particular  district,  who  has  a 
large  class  of  population,  not  voters,  an  equal 
voice  with  a  district  who  has  an  equal  number 
that  are  voters,  it  would  be  unjust  to  the  last  dis- 
trict. He  was  willing  to  do  equal  justice  to  all, 
but  in  that  view  of  the  case,  one  elector  in  New 
York  has  a  greater  voice  than  one  in  the  country. 
No  matter  whether  the  man  had  a  greater  burthen 
of  taxation  or  not,  for  if  that  was  the  ground,  it 
would  be  the  representation  of  property.  That  idea 
was  exploded  in  our  government.  If  aliens  and 
persons  of  color,  whether  taxed  or  not,  who  have 
no  right  to  vote,  are  included,  he  saw  no  way  to 
escape  from  the  fact  that  the  government  was  re- 
solved into  a  representative  of  property,  or  taxa- 
tion. If  we  adopt  the  principle  that  one  elector 
has  an  equal  voice  with  another,  then  we  must 
strike  out  the  whole  of  this  section,  and  substi- 
tute qualified  electors.  Paupers  should  not  be 
excluded,  for  they  are  voters,  and  their  poverty 
was  but  their  misfortune.  He  could  see  nothing 
wrong,  in  not  allowing  this  non-voting  popula- 
tion to  constitute  the  basis  of  representation. 

Mr.  JORDAN  considered  his  question  of  some 
importance  as  to  the  principle  involved:  He  un- 
derstood the  basis  of  representation  to  be  that 
which  was  represented.  In  accordance  with 
this  principle,  he  went  for  the  article  with  the 
exception  of  the  word  paupers.  Neither  aliens, 
persons  of  color  not  taxed,  or  paupers,  were  re- 
presentatives in  this  body.  The  voting  popula- 
tion were  the  legitimate  basis  of  representation. 
The  females  and  children  are  represented  through 
their  natural  protectors  and  guardians.  There- 
fore he  was  not  against  the  provision  that  the  basis 
of  representation  should  include  women  and  child- 
ren. But  who  was  the  representative  of  the  alien 
on  this  floor  ?  He  had  none.  Twenty  thousand 
aliens  upon  this  basis,  would  give  that  city  an  ad- 
ditional representative.  Who  would  he  repre- 
sent ?  No  one,  and  New-York  would  have 
one  member  more  than  other  counties.  So  with 
the  colored  population.  They  had  no  claim  in 
the  representation.  The  pauper  stands  on  a  dif- 
ferent ground — he  may  well  be  supposed  to  have 
been  a  valuable  member  of  society — who  has  ser- 
ved his  country,  but  no  man  was  exempt  from 
misfortune.  They  were  voters,  and  represented 
here, and  ought  to  form  the  basis  of  representation. 
Including  the  aliens  in  the  basis  of  representation, 


he  agreed  with  the  gentleman  from  Ontario,  (Mr, 
WORDEN)  only  riveted  their  chains  which 
bound  them  down  and  would  prevent  them  the 
longer  from  becoming  citizens.  He  should  go- 
for  striking  out  the  word  pauper,  but  for  retain- 
ing the  alien  and  colored  persons  not  taxed. 

Mr.  MUHPHY  said  that  we  should  keep  dis- 
tinctly in  mind  this  distinction, — that  the  question 
was  one  as  to  the  basis  of  representation  "and  not 
as  to  representation  itself.  He  would  confine  hi» 
observations  lathe  reasons  which  had  been  urged 
in  favor  of  the  plan  proposed  by  the  committee. — 
He  had  waited  to  hear,  in  answer  to  the  inquiry 
ol  the  gentleman  from  Otsego,  (Mr.  CHATFIELD,") 
such  reasons  from  that  committee,  but  none  had 
been  given  except  that  of  precedent;  but  when 
pushed  a  iittl. •  iiirther,  the  honorable  chairman, 
(Mr  TAYLOR,)  had  admitted  that  he  did  not  re- 
gard the  exclusion  which  it  was  now  sought  to 
strike  out  as  entirely  proper,  and  that  he  himself 
was  in  favor  of  striking  out  "  paupers  and  persons 
of^color  not  taxed,"  but  of  retaining  the  exclusion 
f  aliens  from  the  basis  of  representation.  But 
though  the  committee  had  riot  favored  us  with 
an  argument  in  support  of  their  report,  gentle- 
men not  of  the  committee  had  come  to  the  res- 
cue and  endeavored  to  sustain  it.  For  himself 
he  regarded  it  as  a  question  of  might  against 
righl.  He  believed  it  was  a  foregone  conclusion 
that  the  basis  of  representation  in  thoee  coun- 
tries where  there  were  large  cities,  was  to  be 
reduced  in  order  to  strip  them  of  their  legiti- 
mate influence  and  power  in  these  halls.  The 
gentleman  from  Herkimer  who  has  just  takea 
his  seat  (Mr.  LOOMIS,)  has  earnestly  advoca- 
ted this  exclusion,  on  the  ground  that  it  is  neces- 
sary in  order  to  preserve  an  equality  of  power 
in  the  electo-rs,  that  is,  if  he  understood  him,  to 
y,ive  to  each  elector  the  same  influence  in  the 
government,  as  anj  other  may  have ;  and  con- 
tended that  if  aliens  were  included  in  the  basis 
of  representation,,  each  voter  in  New. York,  for 
insfance,  would  in  consequence  of  the  enlarged 
basis,  have  a  power,  as  compared  with  the  voter 
in  the  country,  of  six  to  five.  He  (Mr.  M.)  would 
not  deny  this  ;  but  he  called  upon  that  gentle- 
man to  go  on  and  carry  out  his  own  principle. — 
If  equality  of  power  in  the  voter  were  to  be  the 
test,  it  would  be  found  that  as  great  inequalities 
now  exist  among  the  counties,  other  than  New 
York,  as  would  exist  between  New  York  and  the 
most  favored  of  the  rural  districts.  He  had  dur- 
ing the  remarks  of  the  gentleman,  hastily  run 
over  the  tables  of  population  in  some  of  the  other 
counties,  to  see  how  the  principle  would  work. 
He  had  before  him  the  abstract  of  the  census  fur- 
nished the  last  legislature  by  the  Secretary  of 
State,  and  from  that  he  made  his  calculations. — 
He  regretted  that  this  abstract  had  not  been  print- 
ed for  the  use  of  the  Convention,  as  the  tables 
appended  to  the  report  of  the  committee  were  en- 
tirely useless  on  this  question.  He  found,  then, 
that  in  Niagara  and  Erie  and  perhaps  others,  the 
proportion  of  power  in  the  elector  was  as  com- 
pared with  Delaware,  Columbia,  Dutchess  and 
Putnam,  for  instance,  as  five  and  three-tenths  to 
four  and  live-tenths,  or  thereabouts.  Now  if  the 
gentleman  was  truly  desirous  of  preserving  elec- 
toral equality,  why  did  he  not  carry  out  his  pria- 
ciple,  and  seek  to  correct  this  disparity  also  ? 


387 


Mr.  LOOMIS  interposed  to  say  that  these  facts 
only  showed  more  strongly  the  correctness  of  his 
principle. 

Mr.   MURPHY  turned.     He  said    he   did  not 
complain  ot   the  gealleman's  principle,  but  of  the 
partial    maniuM    in    which    he   applied    it.     The 
tables  show   that  as  great  dinVrences  exist  in  the 
lelauve    power  of  voters  in   different  sections  of 
the  country,  as  between    the  cities  and  average  of 
the  country.     He  therefore  could  not  subscribe  to 
the  reasoning  of  the  gentleman  from  Herkimer, 
unless  he  would   give  his  principle  a  general  ap- 
plication.     The    gentleman  from  Ontario   (Mr. 
WORDEN)  had  also  undertaken  to   justify  the  ex- 
clusion.    He  asserts  that  the  basis  of  representa- 
tion is  the  electoral  body.     This   is  not  so.     The 
old  constitution  of  1 777  did  so  provide.     But  no\\ 
the  whoie  population,  including  electors,  women, 
minors,  idiots,  lunatics,  and   all   other  residents, 
except  aliens,   paupers  and   persons  of  color   not 
taxed,  constitutes  the  basis.     The  gentleman  was 
therefore  wrong  in  the  premises  of  his  argument; 
and  the  gentleman  from   Columbia   had    partially 
endorsed  the  same  erroneous  view.     Now,  if  wo- 
men, children,  lunatics  and  other  non-voting  per 
sons,  are  admitted  in  the  basis  of  representation, 
he  asked  on  what  principle  can  we  exclude  aliens, 
paupers  and  persons  of  color  not  taxed  ?     Are  not 
the    latter   as  much    the  objects  of  government 
as    the   former?      Are   they     not   as    much    the 
subjects  of  local  protection   in  the  community  in 
which  they  live  as  the  other  ?    For  his  part  he 
conceived  it  great  injustice   to  require  from  that 
community  to  extend  to  them  all  the  advantages 
of  their  protection,  and  then  to  deprive  that  com- 
munity of  the  reciprocal  advantage  which  they 
ought  to  derive  froM  them  in  the  direction  of  the 
government  o   the  state.     Some  gentlemen  con- 
sidered the  alien   population  a  curse  instead  of  a 
blessing,  and  as  a  burden  upon  the  society  in  which 
they  live,  filling  up  the   alms  houses,  yet  at  the 
same  time,  they  are  unwilling  to  let  that  society 
defend  itself  in  the  only  way  in  which  it  can  do 
so — that  is,   by  a  due  representation  in  the  state 
councils.     The   gentleman  from  Ontario  had  ad 
vanced  another  reason  of  a  most  extraordinary  cha 
racter  for  him.     He  said  that  he  wished  to  protect 
the  rights  of  this  unenfranchised  portion  of  the 
population.     He  would,  if  he  could,  let  aliens  vote 
even   without   the  present  time  of  probation  for 
naturalization ;   but  as  he  could   not  do  that,  he 
wished  to  protect  them  from  the  rest  of  the  com- 
munity in  which  they  live.     And  for  what  reason  ? 
Because  if  the  other  part  of  the  community  were 
allowed  more  representatives,  they  would  exer- 
cise  a  power   which  they  would  be  loth  to  give 
up,  and  would  have  an  interest  to  prevent  the 
enfranchisement  of  aliens.     In  this  the  gentle- 
man   displayed  an    extraordinary    regard  for  our 
foreign  population;  but  he   thought  he  had  over- 
shot tne  mark.     His    zeal    was  too  warm;    for  at 
the  same  time  that  he  manifested  a  regard  for  the 
non-voting   aliens,   he  was  guilty  of  gross   injus- 
tice towards  the   naturalized  citizen.     He   forgot 
that  in  those   communities   where   these    non-vo. 
ting  aliens  resided,  there  was,  for  that  very  reason, 
necessarily  the  largest  proportion    of  adopted  cit- 
izens.      The  former,  therefore,   were   in  a  great 
degree,  in  the    power  of  their    own  countrymen 
and  friends,  if  those  communities  would  have  any 


power  at  all— which  he  (Mr.  M.)  could  not  ad- 
mit— to  keep  them  in  their  unenfranchised  state. 
The  argument  of  the  gentleman  was  simply  this, 
hat  the  power  in  the  hands  of  the  adopted  citi- 
zens would  be  in  the  hands  of  fratricides, — turned 
against  their  own  brethren. 

As  to  the  precedent  alluded  to  by  the  chair- 
man of  the  committe,  contained  in  the  present 
constitution,  he  did  not  consider  it  of  any  weight* 
rle  had  not  looked  lo  see  how  it  came  to  be  in- 
roduced.  Considering  it  wrong  in  principle,  it 
:iad  no  force  with  him.  Yet  if  we  are  to  be  re- 
erred  to  precedent,  there  was  one  much  strong- 
er in  favor  of  his  position,  and  that  was  the 
3asis  of  representation  in  the  Congress  of  the 
U.  States  There,  no  distinction  prevails,  but  the 
whole  population,  of  every  and  whatever  descrip- 
tion, is  included.  Now,  he  asked,  what  proprie- 
ty is  there  in  adopting  a  different  basis  for  your 
State  representation,  from  that  fixed  for  the  fede- 
ral representation  ?  To  his  mind,  there  was  none. 
If  there  were  any,  it  would  be  to  reverse  the  dis- 
tinction, because  it  was  the  State  government  on- 
ly that  took  cognizance  of  our  internal  and  local 
affairs.  He  had  thus  briefly  replied  to  the  argu- 
ments adduced  in  favor  of  the  report  of  the  com- 
mittee, without  any  expectation  of  changing  that 
report.  As  he  had  before  observed,  the  question 
appeared  to  him  to  be  made  here,  one  of  the 
strong  against  the  weak.  The  numerical  interest 
was  against  the  amendment.  He  had  arisen  only 
from  a  sense  of  duty  to  that  constituency  which 
had  sent  him  here  ;  and  he  could  not  allow  a  pro- 
vision to  pass  which  deprived  the  county  he  in 
part  represented,  of  its  just  influence  in  the  legis- 
lature, without  raising  his  voice  against  it.  The 
decision,  however,  rested  with  the  Convention. 

Mr.  WATERBURY  felt  himself  bound  to  ad- 
vocate equal  rights  and  so  far  as  he  could  he  would 
extend  them  to  every  man.  But  this  proposition 
to  get  an  additional  representative  from  New 
York  to  vote  to  crush  this  class  more  and  more, 
would  be  like  reaching  out  one  hand  while  you 
stab  them  with  the  other.  That  he  would  not 
consent  to.  He  would  go  as  far  as  any  man  to 
raise  up  these  oppressed  people,  but  not  to  add 
strength  to  the  hand  that  was  crushing  them  to 
the  dust. 

Mr.  STOW  said  if  he  should  vote  for  this  mo- 
tion, he  must  confess  it  would  be  from  pure,  una- 
dulterated selfishness.  There  were  in  his  coun- 
ty a  large  number  of  Indians,  and  it  might  be  very 
gratifying  to  make  these  a  part  of  the  basis  of  rep- 
resentation. He  could  conceive  of  no  other  rea- 
son for  favoring  the  motion,  nor  did  he  believe 
there  was  any.  For  one  he  did  not  desire  to 
place  himself  upon  record  upon  such  a  reason: 

On  motion  of  Mr.  TILDEN  the  committee  rose 
and  reported  progress. 

And  then  the  Convention  adjourned. 


WEDNESDAY,  (42nd  day,)  July  23. 

Prayer  by  Dr.  KENNEDY. 

Mr.  ANGEL  presented  a  memorial  from  the 
people  of  Rochester,  assembled  in  convention 
there,  relative  to  (be  canals,  and  the  unfinished 
public  works  of  this  State.  It  was  referred  and 
printed. 


388 


The  judge  ot  the  1st  circuit  presented  a  report  |  APPORTIONMENT,  TENURE   AND    DUTIES  AND 
with  the  amount  of  his  fees.  COMPENSATION  OF  THE  LEGISLATURE 

Mr.  PATTt  RSON  resumed  the  chair. 
The  CHAIR  stated  the  question  to  be  on  sfrik- 
ing   out   of  section   6th    the   words,  *•  excluding 
aliens,  paupers  and  persons  of  color  not  tax-^d." 

Mr.   KIRKLAND  .  pposed   the   amendment  to 
.      The  proc«eds  of  lands  belonging  to  this  State,  ex 
cepi  such  parts  tueieuf  as  m  ,y  be  re.-ei  ved  or  appropriated 
te  public  uie,  or  ceded  to  the  United  States,  which  shall 


EDUCATION-SCHOOL  FUNDS,  &c.  &c. 
Mr.  NICOLL,  from  committee  No.  12,  .submit- 
ted l  he  following  report : 

ARTICLE . 


hereaiter  be  sold  or  disposed  of,  together  with  the  lund  de- 


Strike  oui  iht>8e  words. 

Mr-   CHATF1ELD  moved   to  strike    out   the 
word  "paupers"  first.     He  wished  the  question 


invested  and  to  preserve  from  loss  or  waste  all  moneys  I  the  word 

arising  from  the  sales  of  the  said  lands  in  the  said  first 

section  mentioned,  and    all  moneys  now  belonging  or 

•which  hereaiter  may  belong  to  tke  said  Common  School 

Funl. 


persons  of  color." 


nominated  the  Common  school  Kuud,  and  all  moneys    fe   be  taken   on  that  separately;  and  then  leave 

htrealter  appropriated  by  law  to  the  use  and  benefit  of  the    the  rest    of  the    amendment    to  be    tested    bv  ihe 

•aid  fund,  shall  be  and  remain  a  perpetual  lund,  the  inter-    committee  afterwards. 

est  of  which  shall  be  inviolably  appropriated  and  applied        iu_   Tv/rn-DUTo  u    <.  T 

to  the  supj  ort  ot  common  schools  throughout  the  Sta;e.        _Mn  MUK^i*  rose,  but  gave  way  to  loud  cries 

^  2.  It  shall  be  the  duty  ol  the  Legislature  to  pass  such    of  "  question." 

laws  as  may  be  necessary  to  keep  at  uli  times  securely  |      The  question  was   then  taken   on    striking  out 

e  word  "  paupers." 
This  was  carried— ayes  65,  noes  32. 
Mr.  BERGEN  moved  to  strike  out  "  aliens  and 
Mr.  B.  said  this  convention 
leans  endeavor  to  do  what  is  just 

•wi.h  this  sta'te,  upon  the  terms  specified  in  an  act  of  C.  n- 1  ana  rignc-  *ty  adopting  this  amendment,  he 
gross  of  the  Uuited  States  entitled,  "An  act  to  regulate  the  thought  it  could  be  clearly  demonstrated  thatjus- 
deposites  of  the  public  moneys,  approved  the  23d  ot  June,  tice  would  be  far  more  nearly  approached,  than  it 
1836,"  after  retaining  so  much  thereo  as  may  from  time  to  „  ,,i  j  UK  ^ 

time  be  necessary  to  make  good  any  deficiency  in  the  prin  W°uld,  be  b?  adopting  the  provisions  in  the  re- 
cipal,  shall  hereaft  r  be  inviolably  applied  to  the  purposes  Port  ot  the  committee.  I  o  do  this,  for  lllustra- 
of  Common  School  education;  subject  to  the  limitation.-  tion,  he  would  take  for  a  basis  either  the  propo- 
and  reitrictioHi  in  the  next :  succeeding  sections  contained.  sition  reported  by  the  committee,  or  the  electo- 

o^n,^^ 

mentioned,  lor  terms  of  years,  which  have  nut  yet  expired,  tano.  In  forming  districts,  he  supposed  that  no 
•hah  continue  to  be  made  until  tne  ex,  iration  of  said  terms  one  would  question  that  justice  required  them  to 

to  be  annually  paid  over  to  the  Literature  Fund^hah  *be"  should  remain  so,  and  this  equality  exist  at  every 
•o  paid  in  the  year  one  thousand  eight  hundred  and  fort>-  election.  In  practice,  he  admitted  it  could  not 
seven  and  not  afterwards ;  and  alter  that  period  all  exist-  well  be  carried  out,  without  disregarding  coun- 

out  of  the  revenues  in  the  said  preceding  third  smu!n  operation  of  which  would  burden  the  people  with 

mentioned,  until  otherwise  ordered  by  the  Legislature.  considerable  additional  expense.  This  course, 

The  committee  recommend  the  following  to  be  for  one>  he  believed  to  be  impracticable;  and 

submitted  to  the  people  separately:  therefore  he  did  not  advocate  it.  All  must  ad- 

(56.  The  legislature  shall,  at  its  first  session  after  the  mit'  howeve^'  that  the  nearer  we  arrived  to  it, 

adoption  ol  this  Constitution,  and  from  time  to  time  there-  the  greater  the  amount  of  justice  would  be  done, 

•fer,  as  shall  be  ne"«s»ary.  provide  by  jaw  for  the  free  By  our  present  system  a  census  was  taken  and 

education  and  instruction  of  every  child  between  the  ages  rlictvif»tc  fived  pverv  ten  vpars  In  rnr>«pni-]»n/*/» 

ct  four  and  sixteen  years,  whose  pa,  en's,  guardians  or  J8*,  J7,  <.  7,?3L-  sequence 

employers  shall  be  residents  of  the  State,  in  the  Common  °*  the  impracticability  of  forming  these  districts 

Schools  now  established,  or  which  shall  hereafter  be  es-  exactly  equal  at  the  time  of  their  formation,  and 

tublished  therein.  The  expense  olsucn  education  and  in-  so  as  to  continue  the  equality  until  the  next  enu- 

the  same  manner^may  be  provided  by  la^forThVSquT-    rived  at  **  near  as  possible,  and  that  in  doing  this 

dation  ol  town  and  county  charges.  the  average  population  of  the  district  for  the  term, 

HENKY  NICOLL,  Chairman.      should   be  taken   into   consideration.     A  district 

Mr.  NICOLL  stated  that  it  was  due  to  the  nieui-  containing  a  present  population  of  60,000,  which 
bers  of  thb  committee,  in  whose  behalf  he  had  former  enumerations  show  us  to  be  in  a  stationary 
presented  the  report  just  read,  to  say  that  some  state,  is  not  entitled  to  the  same  representation 
difference  of  opinion  existed  in  the  committee  on  with  one  which  is  rapidly  progressing  in  popula- 
the  subject  maiter  referred  to  them,  and  that  pro-  tion.  The  rule  for  forming  the  basis  should  be 
bably  at  some  future  day  a  substitute  lor  a  part  of  one  which  would  work  most  justly  during  the 
the  plan  might  be  offered  by  one  of  the  committee,  whole  ten  years.  By  including  aliens  and  per- 
He  wished  it  t«  be  understood  that  when  the  re-  sons  of  color  not  taxed  in  the  representative  basis, 
port  should  be  under  consideration  in  the  Conven  the  Convention  will  arrive  nearer  to  what  equity 
tion,  the  members  of  the  committee  would  feel  requires  than  by  excluding  them,  for  these  class- 
themselves  at  perfect  liberty  to  withhold  their  es  are  mostly  found  in  our  growing  cities  and  vil- 
aupport  from  their  report,  should  it  in  their  judg-  lages,  where  a  demand  for  labor  exists  to  prepare 
ment  appear  proper  to  do  so.  the  surface  and  erect  dwellings  for  the  inhabi- 

The  report  was  then  leftrred  to  the  committee  tants.  That  they  are  to  be  found  in  such  locali- 
of  the  whole,  and  ordered  to  be  printed.  ties  no  one  can  well  deny,  the  census  proves  it. 

The  Convention  then  went  into  committee  of  Now  although  the  effect  of  including  them  would 
the  whole  on  the  report  of  the  commiitee  No.  1,  be  a  small  present  advantage  to  these  growing 
relative  to  the  places,  yet  the  advantage  obtained  would  as  a  gen- 

eral rule  fall  short  of  giving  them  what  their  ave- 
J  rage  population  for  the  term  between  the  differ- 


389 


ent  enumerations  entitle  them  to.  Kings,  for  in- 
stance, now  has  three  members  ;  if  a  census  should 
be  taken  at  the  end  of  five  years  she  would  be  at 
least  entitled  to  four,  at  the  end  of  ten  years  to 
five.  Bv  including  the  persons  proposed  she 
would  at  the  taking  of  the  census  obtain  four 
members,  which  at  the  best  would  not  be  more 
than  her  fair  average.  It  would  most  probably  be 
short  of  it.  He  hoped  therefore  that  the  Conven- 
tion would  see  the  propriety  of  including  these 
classes;  that  they  would  take  the  natural  in- 
stead of  the  artificial  basis  proposed  by  the  com- 
mittee; that  they  would  take  the  inhabitants,  the 
basis  adopted  by  the  general  government,  and  by 
the  States  which  have  formed  new  Constitutions. 

Mr.  TOWN^END  rose  to  correct  an  error  he 
had  just  lallen  into.  He  had  misunderstood 'he 
question  upon  which  a  vote  had  just  been  taken; 
he  had  supposed  it  10  be  upon  an  amendment  to 
exclude  paupers  from  voting  and  not  aliens  and 
persons  ol  color.  He  was  glad  to  find  himself  in 
a  small  minority  in  voting  against  the  motion.— 
He  had  already  expressed  a  regret  that  those 
committees  which  had  in  charge  tt.e  subject  of  the 
powers  which  are  to  be  granted  to  muni,  ipal  cor- 
porations, had  not  brought  in  their  reports  before 
this;  because  he  believed  that  when  that  matter 
was  settled,  this  one,  as  compared  with  the  sub- 
ject of  these  corporations  would  be  comparatively 
insignificant  The  cities  ot  New  York,  Brooklyn, 
Albany,  Buffalo,  &c.  contained  a  large  per  cent- 
age,  as  high  as  20,  25  and  16,  of  foreigners,  and 
would  desire  to  have  their  just  rights  by  includ- 
ing them  in  Ihe  basis  of  representation  ;  and  he 
hoped  a  liberal  teelmg  would  prevent  their  being 
deprived  oi  ih«  se  advantages,  because  other  sec 
tioQi  ot  Ihe  s:ate  were  without  them. 

Mr.  MORRIS  followed  in  favor  ot  allowing  the 
representation  to  be  based  upon  all  the  inhabitants 
. — paupers,  aliens,  and  persons  of  color  not  taxed  at 

Mr.  RHOADES  said  that  he  alwavs  rejoiced 
when  be  saw  his  friend  (Mr.  MORRIS)  get  up 
and  express  his  great  regard  lor  the  rights  of  the 
people,  for  he  always  exhibited  so  much  universal 
love  and  respect  for  the  rights  ol  the  people;  and 
in  this,  he  harmonized  with  his  own  feelings. — 
He  only  hoped  this  feeling  would  be  exhibited 
when  a  motion  should  be  made  to  amend  the  re. 
port  ot  committee  No.  4,  by  striking  out  the  word 
"white"  and  thu*  extend  the  elective  franchise 
to  some  &000  or  10,000  inhabitants  who  Acre  now 
excluded  by  the  m^eition  ot  that  word  Bui  he 
could  not  agree  with  the  gentleman  in  his  ar- 
gument on  this  section  He  was  in  favor  of 
striking  out  these  words,  and  of  inserting  the 
word  ''electois"  as  the  only  thing  calculated  to 
produce  any  thing  like  equality  He  believed 
the  electors  held  power  in  ti  ust  to  be  exercised 
for  the  benefit  of  all  ihe  people  of  the  State,  toi 
every  individual.  This  right  had  not  been  given 
to  them,  but  they  had  taken  it  upon  themselves, 
and  when  they  exercised  that  power,  they  exer- 
cised it  for  all.  He  believed  that  every  other 
plan,  except  that  proposed  by  him,  was  liable  to 
objection  He  was  in  ftvor  of  making  the  elec 
tots  the  basis  of  representation.  If  we  make  the 
inhabitants  the  rule,  then  theie  would  be  injus- 
tice, tor  we  had  a  large  cUss  of  floating  popula 
lion,  constantly  changing,  and  who  had  no  title 


to  be  repiesenied  here  or  elsewhere,  lor  tney  nad 
no  intention  of  residing  here  By  retaining:  only 
the  word  "  inhabitants,"  they  would  give  certain 
parts  ot  the  Stale  most  undue  advantages.  This 
floating  population  would  alwaxs  gather  at  cer- 
tain point*  in  the  Stale,  such  as  New  York,  Al- 
bany, Utica,  Rochestej,  Buffalo,  &c.,  and  these 
growing  cities  would  have  a  great  advantage  over 
other  places.  And  such  a  basis  would  be  formed 
n  wrong  principle*;  by  taking  in  people  that 
weie  not  entitled  to  representation;  aas  for  in- 
siance  thousands  of  persons  just  passm  through 
this  state  on  their  way  to  Canada,  or  the  far  West. 
If  we  exclude  aliens-,  we  exclude  a  class  of  peo- 
ple that  have  come  here  with  the  intention  ot  re- 
siding with  us,  arid  they  are  as  much  entitled 
to  form  part  of  the  basis  of  representation,  when 
they  should  become  natural  <z  d,  as  if  they  had 
been  born  here,  and  thev  ought  to  have  the  same 
rights  as  the  native  born,  and  are  entitled  to 
an  equal  representation.  If  we  retain  the  word 
ran  pen?,  we  do  great  injustice,  though  the  number 
be  small;  for  by  examining  the  return?,  it  would 
be  found  that  nearly  one.  half  of  this  class  were 
either  aliens  or  persons  of  color  not  taxed,  who 
t  is  contended,  should  not  be  reckoned,  as  they 
are  not  entitled  to  be  electors.  Many  are  going 
out  west  who  are  poor,  and  fall  or  sink  by  the 
way,  and  have  to  ask  chantv.  These  ought  not 
to  be  included.  The  gentleman  from  Columbia 
wishes  to  strike  out  "persons  of  color,"  not 
taxed,  with  a  view  of  retaining  persons  ot  color 
who  are  taxed.  Il  this  is  done,  and  the  c] >U3e 
leported  by  a  member  of  committee  No.  4  be 
rejected  by  the  peoule,  then  we  shall  have  a  class 
of  men  form  the  basis  of  representation,  who  are 
notentiiled  in  any  sense  to  be  electois.  Now 
if  you  strike  out  all  this  part  and  insert  merely 
•'electors,"  you  will  go  on  the  proper  basis  — 
We  are  sitting  here  to  carry  out  the  will  of  the 
electors.  And  there  is  no  principle  they  can 
establish  that  will  be  so  satisfactory  as  this,  or 
liable  to  so  few  objections.  And  this  will  secure 
the  most  fair,  the  most  just  and  equal  repre-enta- 
tion  to  all  parts  ol  the  State;  and  at  the  proper 
time,  he  would  move  to  insert  in  this  and  the 
7th  section,  the  word ''electors"  for  all  the  rest. 

Here  there  were  very  loud  and  repeated  cries 
of  "  Question — question — question." 

Mr.  BAKER  said  that  he  saw  there  was  a  very 
great  desire  to  have  the  question  taken  at  once, 
but  still  he  desired  to  get  the  question  into  such 
a  shape  that  it  would  be  available  hereafter.  He 
called  attention  to  the  report  of  the  committee 
on  the  elective  franchise,  who  had  reported  a  sec- 
tion which  would,  if  adopted,  place  the  people 
of  color  not  taxed  and  white  people  not  taxed  on 
the  same  footing  ;  and  for  the  purpose  of  making 
this  section  compare  with  that  reported  by  that 
committee,  he  moved  that  the  question  be  taken 
separately  on  these  two  points — aliens  and  per- 
sons of  color  not  taxed — so  that  if  the  former  sec- 
tion was  passed,  this  could  be  again  recurred  to. 
In  answer  to  the  eloquent  argument  of  the  gen- 
tleman from  New- York,  (Mr.  O'CONOR)  in  favor 
of  giving  to  New-York  a  representation  equal  to 
the  burthens  which  she  had  to  bear  for  the  sup- 
port of  government,  in  consequence  of  the  for- 
eigners who  were  among  her  population,  he  would 
say  that  New-York  already  possessed  upon  this 


390 


1  Clinton, 

2  Essex, 

3  Montgomery, 

4  Cortland, 
6  Broome, 

6  Chemung, 


floor,  and  in  the  Legislature,  greater  power  than 
they  were  in  reality  equitably  entitled  to  by  the 
ratio  of  representation.  With  a  population  less 
than  that  of  the  counties  of  Clinton,  Essex,  Mont- 
gomery, Cortland,  Broome.  Chemung,  Queens, 
Tioga,  Seneca,  Orleans,  Wyoming,  and  Yates, 
who  send  12  members,  New- York  sends  her  16. 
Here  was  the  data  : 

27,115      7  Queens,  26,837 

23,451       8  Tioga.  22,039 

28,425      9  Seneca,  24,243 

24,861  10  Orleans,  24-143 

26,266  11  Wyoming,  26,238 

23,282  12  Yates,  20,466 

296,716 

Here  are  12  counties,  with  an  aggregate  popula- 
tion of  296,716,  which  send  only  12  members 
here  ;  whilst  New-York,  with  only  295,662  re- 
presentative population,  sends  16  members  here. 
Aud  they  talk  of  injustice  and  inequality.  (A 
laugh.)  They  already  have  an  advantage — a 
much  greater  advantage  than  that  which  we 
seek  to  deprive  them  of  in  this  clause.  If,  as  the 
gentleman  from  New  York  contended,  thev  were 
entitled  to  a  representation  in  accordance  with 
the  burthens  of  government  imposed  by  their  for- 
eign population,  such  as  the  expenses  of  police 
against  foreign  rogues,  and  thieves  that  prowl  at 
nights,  &c.,  and  the  gentleman  from  the  forests 
of  Hamilton,  and  the  gentleman  from  Essex  might 
perhaps,  claim  that  they  have  in  their  wild  lands 
a  great  number  of  badgers,  wolves,  bears,  for  the 
taking  of  which  they  were  obliged  to  keep  a 
quantity  of  traps  and  hunting  materials,  and  de- 
mand that  the  necessity  for  keeping  these  instru- 
ments, and  the  burthens  which  these  badgers  and 
wolves  and  bears  imposed  upon  them  should  be 
taken  into  consideration  in  settling  the  basis  of 
representation.  He  would  not  now  give  his  rea- 
sons in  full  for  the  vote  he  should  give  on  this 
question.  He  had  no  intention  to  detain  the 
committee  with  a  speech  upon  it,  but  merely  de- 
sired to  have  the  question  taken  upon  the  amend- 
ment separately,  so  that  by  and  by,  if  in  settling 
the  question  of  the  elective  franchise,  the  Con- 
vention should  decide  to  abolish  the  distinction 
between  black  and  white,  the  committee  might 
be  able  to  return  to  this  section  and  alter  it. 

Mr.  SHEPARD  was  in  favor  of  striking  out 
the  words  "  aliens  and  persons  of  color  not  taxed." 
He  believed  the  best  interests  of  his  constituents 
demanded  this  amendment.  They  were,  it  was 
true,  burthened  with  the  support  of  great  num- 
bers of  both  classes ;  but  he  did  not  favor  the 
amendment  upon  this  view  of  the  question.  He 
was  sure  it  could  be  supported  upon  a  much 
sounder  ground  than  that— the  true  nature  and 
character  of  the  represented  body.  He  agreed 
with  the  gentleman  from  Oneida,  (Mr  KIRKLAND) 
that  the  representative  represented  the  whole  peo 
pie,  and  he  supposed  this  concession  was  perlectly 
fatal  to  the  conclusion  of  that  gentleman  as  he 
should  presently  show.  The  gentleman  from  Co- 
lumbia (Mr.  JORDAN)  had  drawn  a  line  excluding 
aliens  and  pei  sons  ot  color  not  taxed  from  the  rep- 
resented body,  but  including  women  and  children. 
He  had  however  urged  no  reason  upon  which 
such  a  division  could  besupported.  It  was  entirely 
arbitrary.  Now  he  (Mr.  S.)  did  not  believe  the 
represented  body  to  be  one  which  could  only  be 


determined  by  arbitiary  rules.  What  constituted 
that  body  was  to  be  ascertained  by  the  objects  and 
purposes  of  government.  The  gentleman  from 
Onondaga  (Mr.  RHOADES)  had  found  himself  utter- 
ly embarrassed  by  the  unreasonable  distinctions  of 
the  gentleman  from  Oneida  and  Columbia,  and 
had  avoided  this  difficulty  by  proposing  that  the 
electoral  body  should  constitute  the  basis  of  rep- 
resentation.  This  at  all  events  was  consistent, 
and  he  (Mr.  S.)  thought  gentleman  had  no  middle 
choice  between  the  electoral  body  and  the  whole 
people. — Representation  should  be  apportioned 
according  to  one  or  the  other  He  (Mr.  S.)  was 
in  favor  of  an  apportionment  according  to  the  num. 
bers  of  the  whole  body  of  the  people.  He  was 
sure  they  were  represented  by  the  representative, 
although  gentleman  had  doubted  it.  Government 
is  not  established  for  the  electoral  bodies  alone.— 
Other  rights  than  theirs,  are  embraced  in  the 
mighty  circle  of  its  protection.  The  elective 
franchise  though  amongst  the  most  sacred  is 
not  the  only  franchise  secured  by  constitutions. — 
He  would  read  from  the  Declaration  of  our  Inde- 
pendence a  truth  that  had  become  graven  upon 
the  hearts  our  people.  "  Among  these  rights 
are  life,  liberty,  and  the  pursuit  of  happiness. — 
That  to  secure  these  rights,  governments  are  in- 
stituted among  men,  deriving  their  just  powers 
from  the  consent  of  the  governed."  "  Govern- 
ment" as  Burke  had  said,  "is  a  contrivance  of 
human  wisdom  to  provide  for  human  wants." — 
Now,  sir,  aliens,  and  person  of  color,  not  taxed, 
had  rights,  the  rights  to  life,  liberty,  and  the  pur- 
suit of  happiness.  So  had  females — so  had  chil- 
dren. He  spoke  of  course  in  the  general,  and  as 
the  necessities  of  Society  might  qualify  them. — 
But  it  was  indisputable  that  these  rights  existed. 
Could  females  or  children  be  regarded  as  part  of 
the  constituent  body  on  any  other  view.  No. 
Yet  they  were  and  had  been  so  for  many  years, 
No  sir,  in  his  judgment  the  only  just  rule  of  rep- 
resentation was  in  proportion  to  the  "human 
wants"  represented — not  property,  but  the  rights 
to  "  life,  liberty  and  the  pursuit  of  happiness" — 
human  souls  and  their  personal  interests  in  Gov- 
ment.  The  moment  an  alien  set  his  foot  upon 
our  soil  he  owed  a  local  and  temporary  allegiance 
to  our  government.  He  was  bound  by  our  laws 
and  we  were  bouud  to  protect  him.  He  had  the 
rights,  he  (Mr.  S.)  had  spoken  of,  and  those  rights 
demanded  representation.  Gentlemen  had  said 
he  was  not  represented,  but  he  (Mr.  S.)  submit- 
ted that  the  representative  was  acting  for  the 
alien — on  his  behalf  and  with  the  power  to  bind 
him,  and  if  this  did  not  constitute  representation 
he  (Mr.  S.)  did  not  know  the  meaning  of  the 
term.  It  was  true  the  alien  could  not  choose  his 
representative — neither  eould  the  common  people 
of  England,  yet  we  are  told  by  the  most  enlight- 
ened English  authors  that  the  House  of  Commons 
was  the  representation  of  the  whole  English  peo- 
ple. He  (Mr.  S.)  was  sorry  that  the.  gentleman 
from  Washington  (Mr.  BAKER,)  had  compared 
aliens  to  bears,  wolves  and  panthers.  He  would 
only  advert  to  such  a  comparison  to  say — 

Mr.  BAKER  would  explain.  He  was  misun- 
derstood. The  gentleman  from  New-York  (Mr. 
O'CoNOR,)  had  said  that  New-York  should  have 
an  increased  representation  on  account  of  the  bur- 
thens that  city  had  to  bear  from  aliens  and  per- 


391 


sons  of  color  not  taxed.  He  (Mr.  B.)  had  said 
that  this  argument  would  prove  that  the  people 
of  the  country  ought  to  have  an  increased  repre- 
sentation, since  they  were  burthened  with  wolves 
and  bears.  ' 

Mr.  SHEPARD  was  glad  he  had  misunderstood 
the  gentleman — his  respect  had  been  increased  by 
the  explanation.  He  would  now  finish  with  the 
sentiment  that  consistency  of  opinion,  a  just  view 
of  the  ends  of  human  government,  and  a  just  re- 
gard to  the  rights  of  every  man,  whether  alien  or 
citizen,  demanded  that  the  basis  of  representation 
should  be  the  rights  of  that  portion  of  mankind 
who  dwell  within  the  limits  of  our  country. 

Mr.  VVATERBTJRY  thought  the  amendment  of 
Mr.  RHOADES  a  most  capital  one,  and  advocated 
making  the  electors  the  b.isis  of  representation. 

The  question  was  then  taken  on  striking  out 
the  word  "  aliens,"  and  it  was  lost,  20  only  rising 
in  the  affirmative. 

The  motion  to  strike  out  the  words,  "  persons 
of  color  not  taxed,"  was  lost,  31  only  rising  in  fa- 
vor. 

Mr.  BASCOM  moved  the  following  amendment 
to  come  in  after  the  words  "  persons  of  color  not 
taxed : 

So  long  only  as  persons  of  color  shall  be  precluded  from 
enjoying  the  rights  of  suffrage  upon  the  same  terms  as 
"white  persons. 

Mr.  B.  said  he  would  provide  that  if  ever  per- 
sons of  color  should  become  voters,  they  might 
form  a  portion  of  the  basis  of  representation.  This 
was  offered  by  him  in  anticipation  of  the  possibi- 
lity that  persons  of  color  might  become  eligible  as 
voters ;  he  would  not  now  commit  himself  on  this 
subject.  He  merely  wished  to  provide  for  a  con- 
tingency. 

Mr.  NICHOLAS  said  the  amendment  was  un- 
necessary ;  it  would  be  decided  in  the  action  on 
the  report  of  committee  No.  4,  on  the  Elective 
Franchise. 

The  amendment  was  lost. 

Mr.  RHOADES  moved  to  amend  by  striking 
out  the  words  "  inhabitants,  excluding  aliens  and 
persons  of  color  not  taxed,"  and  inserting  the 
words  "  electors." 

This  was  ultimately  yielded. 

Mr.  JORDAN  moved  to  amend  by  inserting  al- 
ter the  word  "  thereafter,"  the  following: 

The  Legislature  shall,  at  its  next  session  after  the  adop 
tionof  this  Constitution,  divide  the  State  into  districts,  ac- 
cording to  the  6th  section  of  this  article. 

Mr.  W.  TAYLOR  said  it  appeared  to  him  that 
the  Convention  had  got  to  settle  the  question  of 
senate  districts,  whether  they  should  be  single  or 
double.  This  point  being  settled,  it  appeared  to 
him  that  there  then  could  be  presented  some  pro- 
position for  an  apportionment  that  would  carry 
out  and  meet  the  views  of  a  majority  of  the  Con- 
vention. Mr.  T.  urged  that  the  Convention  could 
go  on  and  speedily  dispose  of  this  question.  It 
was  disposed  of  in  the  Convention  of  IS'21.  It 
would  obviate  the  imposition  upon  the  legislature 
of  an  immense  mass  of  business,and  a  consequent 
embarrassment  of  the  public  mind.  He  thought 
it  could  be  as  well  adopted  here. 

Mr.  STETSON  liked  the  proposition  of  the 
gentleman  from  Columbia  (Mr.  JORDAN)  and  he 
(Mr.  S.)  was  instrumental  yesterday  in  getting  it 
before  the  house.  He  would  like  to  see  devolved 


upon  the  legislature  this  duty  of  districting  the 
State.  But  the  question  as  to  the  equality  of  rep- 
resentation between  the  counties  could  not  be 
avoided.  It  would  come  up  under  the  question 
as  to  what  the  number  of  districts  should  be. 

Mr.  JORDAN  did  not  propose  to  adopt  the  5th 
section  as  it  stood,  in  referring  to  it  in  his  amend- 
ment. He  trusted  if  this  section  was  passed  with 
this  amendment,  that  it  would  lie  on  the  table  for 
the  purpose  of  being  made  to  harmonise  with  the 
other  sections  of  the  Constitution,  if  necessary. — 
Then  the  committee  could  go  back  to  the  fifth  sec- 
tion, and  could  decide  on  the  motion  to  strike  out. 
Mr.  J.  urged  that  if  the  Convention  had  time,  it 
might  be  well  to  follow  the  example  of  .theConven- 
tionof'21,andtodistrictthe  State  here.  Butstillhe 
conceived  that  the  legislature  would  be  j  ust  as  fully 
competent  to  district  the  State  at  its  session  nrxt 
after  the  Constitution  shall  be  adopted  as  at  next 
enumeration.  Taking  into  consideration  the  varie- 
ty of  subjects  to  be  acted  upon  here,  was  it  to  be  ex- 
rted  that  there  would  be  time  to  attend  to  this  ? 
order  to  submit  this  constitution  in  time  to 
the  people,  it  should  be  ready  by  the  first  of  Oc- 
tober. It  was  obvious,  therefore,  there  was  not 
time  to  do  this  work,  unimportant  too,  as  he  con- 
sidered it. 

Mr.  MARVIN  said  that  it  seemed  that,  there 
were  two  or  three  questions  to  settle  before  the 
Convention  could  enter  upon  the  discussion  which 
:VIr.  JORDAN  had  opened.  In  the  first  place,  as  to 
the  number  of  senators;  next,  as  to  the  represen- 
tation; and  then  whether  there  should  be  single  or 
double  districts.  Atler  that  it  would  be  proper  to 
consider  whether  the  Convention  should  dis- 
trict the  State,  or  throw  the  burden  upon  the 
Legislature.  He  therefore  was  in  favor  of 
returning  to  the  discussion  of  the  other  questions, 
important  as  he  believed  they  were  conceded  to 
he. 

Mr.  RUSSELL  urged,  it  was  a  duty  of  this  Con- 
vention to  the  people  to  establish  definitely  the 
senate  districts.  If  it  is  left  to  the  senate  oi  next 
winter,  she  power  of  fixing  not  only  the  districts 
from  which'their  own  body  is  to  com*?,  but  to  dic- 
tate as  to  the  other  body,  a  scene  would  be  en. 
acted  that  would  almost  "force  the  people  to  drive 
the  Legislature  from  the  capitol- 

Mr.  JORDAN  rose  to  a  question  of  order  ;  the 
amendment  of  the  gentleman  from  Orange  having 
been  wi'hdrawn,  it  was  not  in  order  10  discuss  it. 
Mr.  RUSSELL  insisted  .that  he  was  in  order; 
the  proposition  pending  was  to  amend  the  section. 
He  insisted  that  Mr.  J.  should  reduce  his  point  oi 
order  to  writing. 

Mr.  JORDAN'S  desire  was  to  prevent  these 
endless  discussions  which  consumed  so  much  of 
the  time  of  the  house.  He  would  comply  with 
the  rule.  Mr.  J.  accordingly  reduced  his  point  of 
order  to  writing. 

The  CHAIR  decided  the  question  to  be  on  the 
amendment  of  the  gentleman  fiom  Columbia,  (Mr. 
JORDAN ) 

Mr.  RUSSELL  insisted  that  that  was  the  point 
he  was  discussing.  Mr.  R.  continued,  urging  it 
to  be  the  duty  of  the  convention  definitely  to  ar- 
range this  matter ;  so  at  least  that  there  should 
be  one  body  of  the  legislature  interested  in  the 
subject.  The  objection  would  not  be  so  forcible, 
if  both  branches  of  the  Legislature  were  to  be 


392 


elected  anew  next  winter,  and  were  therefore 
wholly  uninterested  in  the  matter.  Many  of  the 
Senators  would  be  removed  from  office  by  the  op- 
eration of  the  new  constitution,  and  would  there- 
fore have  a  direct  interest  in  the  arrangement  of 
the  new  districts. 

Mr.  BROWN  suggested  that  the  objection 
would  apply  with  equal  force  to  the  Assembly— 
who  as  a  part  of  the  Legislature  were  to  arrange 
the  Assembly  districts. 

Mr.  RUSSELL  was  aware  of  that,  and  would 
therefore  arrange  the  whole  business  here,if  there 
was  time.  But  he  desired  to  see  the  Senate  dis- 
tricts, at  least,  arranged.  He  thought  this  con- 
vention could  arrange  all  its  business  by  the  25th 
of  September,  if  in  no  other  way,  by  the  holding 
of  evening  sesssons,  and  working  more  diligently. 

Mr.  HARRIS  was  in  favor  of  dividing  the  State 
into  Senatorial  districts,  if  it  was  practicable. — 
He  was  persuaded  now  that  it  was  not,  and  he 
should  consent  to  have  it  thrown  over  to  the  next 
legislature.  He  thought  therefore  we  should  now 
fix  the  number  of  Senators  and  Assemblymen  by 
going  back  to  the  2d  section,  and  striking  out  the 
whole  of  the  6th  section,  and  substituting  a  new 
one  devolving  this  business  upon  the  next  legis- 
lature. This  would  make  the  entire  subject  com- 
plete— it  would  fix  the  number  of  Senators  and 
Assemblymen,  and  provide  for  the  future  appor- 
tionment by  the  legislature. 

Mr.  WARD  would  have  no  objection  to  the 
suggestion  of  the  gentleman  from  Albany,  but  it 
would  then  be  necessary  for  the  gentleman  from 
Columbia  to  withdraw  his  amendment. 

Mr.  JORDAN  thought  the  question  had  better 
be  decided  now. 

Mi  WARD  expressed  himself  in  favor  of  the 
single  district  system,  and  in  favor  of  having  the 
dn  nets  arranged  by  the  Convention  here.— 
No  matter  what  time  it  occupied.  It  was  a  duty 
i hey  owed  to  ihe  people.  He  appiehended,  also, 
f  nat  it  would  not  defeat  the  object  ol  the  Conven- 
tion. As  to  the  number  ol  Senators,  he  saw  no 
reason,  at  present,  to  increase  the  number.  But 
whether  thnt  was  so  or  not,  he  saw  no  reason  to 
fear  from  the  consumption  «f  time  Nothing 
would  be  gained,  either,  by  ihis  committee  rising 
and  taking  up  the  resolution  ot  the  gentleman 
from  Ontario  It  could  be  disposed  of  here  He 
hoped,  therefore,  the  second  section  would  be 
taken  up  now. 

Mr.  W.  TAYLOR,  urgtd  that  this  question  ol 
the  number  of  Senators,  necessnrily  involved  'he 
other  question  as  to  the  manner  of  arrangement 
oH he  districts.  Such  was  the  course  adopted  in 
1821,  and  in  his  judgment  the  proper  course  — 
It  was  the  time  wasted  in  the  discussion  of  col- 
lateial  questions,  that  consumed  the  sittings. 

Mr.  TILDEN  thought  the  proposition  of  Mr 
JORDAN  altogether  premature.  It  was  impossible 
to  do  justice  to  any  system,  until  the  committees 
were  through  with,  to  see  it  that  system  would 
wotk.  Mr.  T.  urged  that  the  proper  course  was 
first  to  decide  what  general  rule  should  govern 
in  retard  to  representation.  A  great  cause  foi 
the  unprofitable  consumption  ol  time,  Mr  T.  as- 
ciihed,  to  the  want  of  the  adoption  of  some  gener- 
al rules  a-<  to  order  of  business. 
Some  conversation  here  ensued  between  Messrs. 
CHATFIELD  and  JORDAN,  as  to  the  effect  of 


the  amendment.    Mr.  J.  also  further  urged  the 
propriety  of  adopting  his  proposition. 

Mr.  W.  TAYLOR  again  urged  the  gentleman 
from  Columbia,  (Mr.  JORDAN,)  to  withdraw  his 
amendment,  in  order  to  facilitate  business. 

Mr,  JORDAN  was  willing  to  suspend  action  on 
his  amendment,  on  this  appeal  from  the  chair- 
man of  the  committee,  and  would  withdraw  it  for 
the  present. 

The  CHAIR  stated  the  question  to  be  on  the 
amendment  of  the  gentleman  from  Albany,  (Mr 
HARRIS,)  as  follows  : — 

"  Strike  out  all  after  the  word  "  thereafter,"  in  the  4'h 
line,  to  and  including  the  word  "  district,"  in  the  6th  line, 
and  in.=ert,  "  The  Legislature  at  its  next  annual  fession, 
and  at  the  fi'st  session  after  the  return  of  every  enumera- 
tion, shall  divide  the  Stale  into  Senate  Distiict*, 

which." 

Mr  PERKINS  moved  to  pass  over  section  No. 
5,  and  return  to  the  consideration  of  section  2. — 
This  was  agreed  to. 

The  second  section  was  then  read. 

The  question  was  on  Mr.  RICHMOND'S  mo- 
tion, to  strike  out.  the  words  "  thirty-two." 

Mr.  RUSSELL  rose  "amid  loud  cries  of  "ques- 
tion, question."  He  said  he  would  be  heard  on 
this  question,  as  on  it  was  dependent  all  the  others. 
He  had  made  a  distribution  of  twenty  Senate  dis- 
tricts with  a  view  of  having  forty  senators,  with  a 
two  year's  term,  and  one  to  be  elected  in  each  dis- 
trict every  year.  This  would  give  a  fair  allott- 
ment  of  districts  without  dividing  county  lines, 
except  in  New- York.  In  no  district  under  this 
plan  would  there  be  a  variation  from  the  average 
ratio  of  more  than  4,000,  and  in  only  a  single  dis- 
trict would  it  reach  that.  He  apprehended  the 
single  district  system  would  have  to  be  abandoned 
from  the  impracticability  of  aranging  forty  single 
districts  without  dividing  county  lines.  A  com- 
promise of  this  kind,  it  seemed  to  him,  would 
have  to  be  adopted.  He  was  willing  to  strike 
out  32,  and  then  consider  as  to  the  number  to  be 
agreed  on.  So  in  regard  to  the  length  of  the 
term  of  office  of  the  Senators,  there  would  have 
to  be  a  compromise  affected  between  the  different 
views  on  the  subject.  It  was  therefore  that  he 
desired  that  the  question  should  be  opened. 

Mr.  W.  TAYLOR  said  that  taking  any  number, 
and  making  double  districts,  there  could  be  a 
more  equal  apportionment  provided.  He  did  not 
believe  that  it  was  desired  by  the  people  to  in- 
crease either  senate  or  assembly,  but  single  dis- 
tricts, he  believed,  was  most  emphatically  called 
for  by  them. 

Mr.  VAN  SCHOONHOVEN  insisted  that  the 
people  had  never  called  for  an  increase  of  the  le- 
gislative power.  The  general  feeling  was  rather 
opposed  to  it.  In  the  changes  that  were  to  be 
made  as  to  the  powers  and  duties  of  the  legisla- 
ture, the  present  force  would  be  amply  sufficient. 
An  increase  of  force  would  also  involve  an  in- 
crease of  expenditure.  He  believed  that  there 
would  be  no  difficulty  in  making  this  matter  equal. 
He  believed  the  great  object  desired  by  the  peo- 
ple was  the  establishment  of  single  districts,  and 
the  bringing  of  the  representatives  nearer  to  the 
people.  He  was  prepared  to  go  for  the  report  a? 
introduced  by  the  committee, 

Mr.  RICHMOND  said,  no  wonder  the  gentle- 
man was  satisfied  with  the  report  of  the  commit- 


393 


tee,  for  it  gave  to  Rensaelaer  a  Senator  with  only 
some  53,000  inhabitants,  when  the  ratio  was 
nearly  80,000,  while  Albany  county  with  68,000 
had  to  take  on  another  county,  having  other  and 
conflictino;  interests,  in  order  to  be  entitled  to  the 
same  privilege.  And  Mr.  R.  could  point  out  sev- 
eral other  as  palpably  unjust  divisions. 

Mr.  SIMMONS  thought,  the  question,  as  to  con- 
venience of  any  particular  locality  in  districting, 
should  not  be  involved  with  that  as  to  what  legis- 
lative force  should  be  provided.  He  thought  that 
taking  away  from  the  Senate  its  judicial  power 
would  be  to  decrease  its  standard  of  knowledge 
as  a  political  body.  The  fact  that  it  was  a  judi- 
cial body,  now  induced  the  people  to  select  men 
of  a  higher  standard  of  attainment  for  it  than  they 
ordinarily  did  for  the  Assembly.  This  point 
should  be  considered.  In  relation  to  the  Assem- 
bly there  was  great  security  in  a  large  body — the 
larger  the  better,  and  it  was  less  liable*  to  be 
lobbied  with.  His  own  experience  had  taught 
him  to  believe  that  for  this  very  reason  the 
House  was  the  most  conservative  branch  of  the 
Legislature.  He  was,  therefore,  unwilling  to 
change  the  Senate,  so  far  as  was  proposed,  for 
mere  purposes  of  stability.  Forty  Senators  were 
little  enough,  and  in  his  opinion  the  House  should 
be  increased  proportionably.  The  increase  of 
population  alone  demanded  this.  The  smaller 
the  body,  the  more  danger  there  was  to  guard 
against.  In  adjusting  this  matter,  we  should  lay 
out  of  view  these  questions  of  mere  local  conve- 
nience. He  also  could  never  vote  for  this  system 
of  the  people's  voting  half  arid  half,  by  years.  It 
was  a  new  idea,  this  matter  of  electing  Senators 
by  turnip  patches  over  the  State.  He  preferred 
biennial  sessions  of  the  legislature,  with  power  to 
the  Governor  to  call  them  together  in  an  emer- 
gency. There  was  too  mucn  legislation,  and 
there  was  much  truth  in  the  sentiment,  that  "the 
world  was  governed  too  much" — and  he  had  no 
doubt  that  the  people  generally  were  in  favor  of 
such  change. 

Mr.  SWACKHAMER  expressed  himself  in 
favor  of  biennial  sessions  and  single  districts. — 
The  people  in  his  section  had  expressed  them- 
selves most  emphatically  in  favor  of  these  two 
great  reforms.  He  hoped  therefore  that  question 
would  be  considered. 

Mr.  JORDAN  confessed  that  on  this  question 
of  increasing  the  legislative  force,  his  ideas  were 
rather  crude,  as  he  had  never  heard  of  it  before  he 
came  here.  He  had  never  known  that  any  such 
measure  of  reform  was  called  for  by  the  people, 
and  he  should  therefore  discuss  it  as  an  open 
question.  And  it  was  not  on  that  ground  that  it 
was  proposed,  but  merely  for  the  convenience  of 
apportionment. 

Mr.  STETSON  :  For  the  equality  of  repre- 
sentation. 

Mr.  JORDAN  said,  the  evils  that  would  result 
from  it  was  to  be  looked  at,  and  among  them 
would  be  the  increase  of  expense  to  the  people. 
This  was  a  day  of  retrenchment  rather  than  of 
extravagance,  but  still  if  measures  had  been  call- 
ed for  by  the  people  although  it  increased  the 
expense,  they  would  sanction  them,  if  not,  they 
would  not.  If  the  senate  should  be  increased 
from  thirty-two  to  thirty-nine  members,  for  in- 
stance, and  the  assembly  in  proportion,  the  rep- 

26 


resentation  would  be  increased  in  both  branches 
to  thirty-five  additional  members.  This  would 
lead  to  no  inconsiderable  item  of  expense.  The 
pay  of  this  increase  of  members  at  the  ordinary 
price  paid  them  under  the  old  Constitution,  at 
the  usual  length  of  a  session,  and  including  the 
travel  fees,  would  not  be  less  than  $15,000  per 
annum.  This  was  an  item  not  to  be  disregarded, 
or  thrown  away  in  the  present  condition  of  the 
finances  of  the  State.  Putting  this  amount  into  a 
sinking  fund,  and  with  a  silent  operation  and 
without  any  additional  trouble  at  the  end  of  twen- 
ty years,  it  would  furnish  a  fund  of  more  than. 
$1,000,000,  saved  by  that  operation.  And  if  there 
was  no  call  for  this  increase  of  legislative  force, 
he  would  prefer  to  have  that  sum  appropriated 
to  the  common  school  fund.  Mr.  J.  said 
there  were  many  other  items  of  expense,  which, 
suggested  themselves,  such  as  an  alteration,  or  re- 
building of  the  Capitol,  to  accommodate  the  in- 
crease, &c.  which  it  was  immaterial  to  refer  to. — 
Mr.  J  said  that  neither  did  the  safety  of  legisla- 
tion require  this  increase.  If  128  members  could 
be  corrupted,  so  could  158.  And  to  get  rid  of 
this  danger  you  must  go  on  increasing  the  num- 
ber, until  the  Lobby  could  not  bring  a  force 
laige  enough  to  operate  upon  them.  And  then 
you  would  have  a  number  about  equal  to  half 
i he  adult  population  of  the  State.  We  had  128 
wise  men  here,  who  were  abundantly  competent, 
as  was  apparent,  to  discuss  every  proposition  that 
could  be  presented,  and  assist,  and  examine  every 
bone  and  muscle  in  its  body,  and  expend  those 
debates  upon  it,  and  waste  a  great  deal  more  time 
than  was  consumed  in  the  original  creation  of  the 
world.  If  rhere  was  not  wisdom  enough  in  128 
men  to  take  care  of  the  interests  of  the  slate,  then, 
there  would  not  be  in  158.  An  increase  of  num- 
ber would  also  tend  the  greater  to  divide  respon. 
sibility.  Thirty-two  men  in  ihe  Senate  may  be 
bribed  and  corrupted,  and  if  we  were  to  frame  a 
government  on  that  supposition,  then  he  appre- 
hended it  was  better  not  to  have  a  government  at 
all  Arid  forty  men  were  fully  as  liable  to  cor- 
ruption and  impurity,  as  thirty-two.  The  Assem- 
bly coming  from  every  section,  and  every  locality 
of  the  state,  were  the  immediate  representatives 
of  the  people,  and  every  member  knew  the  wants 
of  every  neighborhood  he  represented.  Where 
then  the  necessity  for  its  increase?  Why, 
gentlemen  «ay,  because  the  population  has  in- 
creased. Wa-<  that  any  reason  fur  it,  go  long: 
as  each  member  was  found  to  be  acquainted  with 
the  minutest  wants,  almost,  of  his  constituents. 
When  the  number  secures  that,  then  we  have- 
constituted  a  sufficiently  large  house  of  assembly. 
The  senate  was  a  check  upon  improvident, 
unconstitutional,  or  unwise  legislation,  and  when, 
the  house  passed  a  law  of  that  description  — the 
senate,  being  a  less  numerous  body,  and  looking- 
upon  it  calmly  andcooly,  have  the  power  of  veto- 
ing it.  It  had  a  veto  upon  the  assembly  precisely 
as  the  governor  had  upon  the  legislature.  I  f 
therefore  it  required  some  forty  members  to  ex- 
ercise that  power,  the  governor  being  a  check 
upon  both  branches,  there  ought  then  to  be  two 
governors,  to  prevent  one  from  being  corrupted. 
There  was  nothing  in  the  argument  that  met  his 
|  approbation,  and  these  bodies  be  believed  were 
!  sufficiently  numerous  now.  As  to  the  equality 


394 


of  representation,  even  if  there  were  some  dis- 
tricts with  a  large  fraction  of  excess,  there  was 
no  very  great  danger  of  their  being  here  unrepre- 
sented. There  could  be  no  perfect  equality  at- 
tained, it  might  be  approached,  perhaps,  for  the 
present,  by  increasing  the  number  of  representa- 
tives, but  whether  at  the  next  census  it  would  be 
any  more  equal,  was  altogether  a  problem. — 
No  human  being  on  Earth  could  decide  as  to 
that,  and  it  was  therefore  a  mere  experiment 
based  upon  the  present,  without  reference  to  the 
future.  He  submitted  that  even  if  the  number 
of  Senators  was  increased,  the  representation 
would  be  just  as  unequal  as  by  leaving  it  as  it  is, 
for  in  proportion  as  the  number  of  members  was 
increased,  was  magnified  the  importance  of  the 
fraction.  By  doubling  the  representation,  a  frac- 
tion of  8,000  would'  present  just  as  much  in- 
equality as  would  a  fraction  of  16,000  at  present, 
because  if  a  fraction  of  16,000  was  left  now  with- 
out one  member,  if  the  number  of  members  was 
doubled,  it  would  be  left  then  without  two  mem- 
bers. And  so  on  in  proportion  to  any  greater  or 
less  number.  A  good  deal  had  been  said  about  the 
people  not  voting  every  year,  but  if  they  did  not 
vote,  they  would  certainly  be  represented.  Even 
if  they  did  not  vote  but  once  in  four  years,  yet  they 
would  be  represented  every  year  the  same  as  they 
now  are  by  the  Executive.  What  mischiet  then 
could  grow  of  that,  except  where  the  people  elect 
oneyear  in  one  district  and  another  year  in  another. 
Then  there  may  be  colonization,  and  he  could  not 
undertake  to  answer  for  New- York  as  to  pipe- 
laying  or  of  Brooklyn,  her  cousin-german. 
Mr!  MURPHY :  Not  in  that  respect. 
Mr.  JORDAN  continued — But  we  were  to  look 
at  the  great  interests  of  the  State,  and  not  those 
merely  of  localities.  Whatever  system  of  elec- 
tion should  be  adopted,  he  was  in  favor  of  retain- 
ing the  term  of  the  Senate  as  it  now  is.  It  was 
the  conservative  branch  of  the  legislature — the 
check  upon  the  Assembly — and  its  members 
ought  to  understand  well  the  course  of  legisla- 
tion. And  the  very  object  of  the  four  year's  term 
was  to  enable  that  body  to  have  among  its 
members  those  who  understood  the  legislation 
and  the  operations  of  previous  years.  And  he 
saw  no  reason  for  altering  it,  when  its  present 
organization  had  not  operated  unfavorably.  This 
•vice,  sublimated ,  and  Utopian  notion  of  gentlemen, 
of  securing  equal  representation,  was  all  well 
•enough  if  it  could  be  reduced  to  practical 
operation. 

Mr.  STETSON:  It  can. 

Mr.  JORDAN  would  like  to  have  the  gentle- 
man set  down  and  undertake  to  tell  him  how  he 
would  do  it  without  dividing  towns  and  counties 
and  single  districts.  And  then  at  the  end  of  ten 
years,  it  was  just  as  likely  to  be  unequal  as  now. 
These  were  Mr.  J  's  present  impressions,  and  he 
preferred  single  districts  because  it  brought  the 
representative  nearer  home  to  the  people  and 
enabled  them  the  better  to  understand  his  qualifi- 
cations and  capacity. 

Mr.  PEKK-iN^siiid  that  the  number  of  Senators 
xnu»t  be  governed  in  some  degree  by  the  length 
of  the  term  of  office.  If  for  tour  years,  we  must 
have  a  number  that  will  divide  by  lour,  it  tor 
three  years,  a  number  that  will  divide  by  three, 
?md  «o  on.  He  did  not  think  it  of  much  conse- 


quence whether  ihe  <xxt  proportion  between  the 
Senate  and  Assembly  should  be  continued  as  four 
to  one,  and  it  the  number  of  Senators  were  in- 
creased  a  little,  it  did  not  involve  the  necessity  of 
increasing  the  Assemblymen.  He  should  be  glad 
to  have  the  words  "thirty  two"  stricken  out  and 
a  blank  left  until  the  period  of  time  for  which 
the  Senators  should  be  elected  should  be  deter- 
mined. For  himself  he  was  in  favor  of  three 
years,  and  then  a  number  of  Senators  that  would 
divide  by  three— either  30,  33,  36  or  39  He  did 
not  desire  any  rna'erial  increase,  and  indeed, 
thought  about  the  present  number  as  nearly  right 
as  could  be  got  at. 

Mr.  CHATFIELD  believed  it  to  be  the  duty  of 
the  convention  here  in  forming  these  Senate  dis- 
tricts, to  equalize  the  representation  of  the  peo- 
ple in  that  branch  of  the  Legislature.  And  he 
believed  also  that  the  project  of  the  committee 
was  one  showing  great  inequality,  injustice,  and 
which  sould  be  obviated  by  fixing  upon  some 
other  number,  without  destroying  the  principle 
of  single  districts.  The  gentleman  from  Colum- 
bia, (Mr.  JORDAN)  had  called  these  notions  of 
equal  representation  Utopian.  To  his  (Mr.  S.'s) 
ears  a  declaration  of  that  kind,  he  must  confess, 
sounded  rather  grating.  He  believed  that  it  was 
this  idea  of  equality  of  representation  that  gave 
us  liberty,  and  enabled  us  to  be  here,  discussing 
the  organic  law.  And  he  was  yet  to  learn  that 
that  principle  was  to  be  treated  here  as  elsewhere 
— as  Utopian,  wild  and  visionary,  and  not  fit  to 
be  entertained  by  patriots  and  sensible  men.  Mr. 
C.  then  referred  to  the  report  of  the  committee  as 
showing  great  inequalities.  He  alluded  to  the 
fact  that  his  own  county,  Oj;sego,  by  the  congres- 
sional apportionment,  was  left  with  a  large  frac- 
tion unrepresented  ;  and  now  it  was  sought  to  re- 
peat the  injury  again.  As  to  the  matter  of  ex- 
pense, he  would  not  stop  to  consider  the  expen- 
diture of  a  few  dollars,  when  the  great  principle 
of  equality  of  representation,  the  one  that  lay  at 
the  very  base  of  the  foundation  and  carrying  out 
of  true  republican  government,  was  involved. — 
But  there  was  no  weight  in  that  argument.  It 
was  proposed  to  divest  the  Senate  of  its  judicial 
character  ,which  leads  to  more  than  half  its  expense 
—to  take  from  the  Legislature  many  subjects 
which  now  lead  to  a  protraction  of  the  session — 
and  to  limit  the  session  to  three  months,  instead 
of  allowing  them  to  extend  it  to  four  or  five,  by 
requiring  them  to  be  paid  full  pay  for  only  three 
months,  and  then  to  cut  it  down  one  half,  which 
would  effectually  produce  that  end.  When  these 
considerations  were  observed,  it  would  be  seen 
that  the  people  would  gain  largely  even  if  the 
number  of  the  Senate  was  increased  to  forty-eight. 
If,  as  was  contended,  the  equalization  of  repre- 
sentation was  not  possible,  why  was  it  provided 
that  an  enumeration  should  betaken  of  the  popu- 
lation every  ten  years,  and  then  that  a  new  ap- 
portionment should  be  made.  What  was  the  ob- 
ject of  it,  if  not  that  a  new  apportionment  was  re- 
quired every  ten  years — from  the  fact  that  while 
some  portions  of  the  State  were  standing  still  in 
point  of  population,  others  were  falling  back,  and 
thereby  producing  an  inequality  in  representa- 
tion. It  was  for  this  object,  and  no  other.  And 
if  it  was  desirable  to  do  this  ten  years  from  hence, 
it  was  desirable  to  do  it  to-day.  Again,  as  to  the 


395 


increase  of  number  prior  to  the  Constitution  of 
1^-21,  the  Assembly  consisted  of  70  members,  and 
the  Senate  of  "2 1,  and  why  was  the  number  then 
increased  ?  It  was  only  because  the  State  had  in- 
creased in  population.  And  if  that  was  a  good 
reason  then,  was  it  not  now  ?  If  seventy 
members  was  sufficient  for  half  a  million, 
was  128  a  requisite  number  of  representa- 
tion of  3,000,000  of  people  ?  The  legislative 
power  of  this  state,  he  believed,  was  less  than 
that  of  any  other  in  the  Union,  and  where,  he 
asked,  was  there  a  state  with  such  great  and  di- 
versified interests  as  this  ?  An  increase  of  num- 
bers he  urged  would  also  tend  to  decrease  the 
chances  for  corruption.  It  was  easier  to  corrupt 
one  man  than  ten;  and  by  parity  of  reason- 
ing it  was  easier  to  corrupt  a  majority  of  thirty- 
two,  than  of  forty-eight.  An  increased  number 
would  also  render  corruption  much  more  expen- 
sive, and  thus  would  the  chances  for  it  be  dimin- 
ished. The  danger  of  corruption  was  always  in 
small  bodies,  in  oligarchies.  He  might  instance 
the  republics  of  Genoa  and  Venice,  where  the 
Council  of  Ten  became  omnipotent  and  finally  de- 
stroyed the  republics,  as  evidences  of  this.  The 
senate,  he  also  urged,  was  not  merely  a  check  upon 
the  assembly,  it  was  a  co-ordinate  branch  of  the 
legislature,  and  had  the  same  power  to  originate 
bills.  Therefore  the  assembly  was  as  much  a 
check  upon  the  senate  as  the  senate  was  upon  the 
assembly.  And  experience  had  shown  that  the 
assembly  had  oftener  corrected  the  senate  than 
the  senate  had  the  assembly.  In  conclusion,  Mr. 
C.  said,  he  wished  to  have  justice  done  not  only 
to  his  county  but  to  all,  and  if  that  could  be  done 
by  single  districts  he  was  willing  to  go  for  them, 
if  not,  then  l.e  was  willing  to  go  for  double  dis- 
tricts. He  would  yield  the  first  principle  to  se- 
cure the  great  end  of  equal  representation.  He 
came  here  without  any  instructions  or  pledges 
upon  the  subject,  and  he  was  ready  to  act  upon  the 
dictates  of  his  own  judgment  and  upon  that  he 
was  willing  to  stand  or  fall. 

Mr.  STOW  moved  that  the  committee  rise  and 
report  progress. 

This  was  agreed  to. 

Mr.  WORDEN  opposed  granting  leave  to  sit 
again,  and  renewed  the  motion  to  recommit  with 
instuctiorvs  as  moved  by  him  yesterday  afternoon. 

Mr.  MURPHY  moved  to  lay  the  motion  on  the 
table. 

Mr.  JONES  moved  to  adjourn.  Lost — ayes 
50,  noes  52. 

Mr.  WORDEN  withdrew  his  motion  and  the 
committee  had  leave  to  sit  again — ayes  57,  noes 
37. 

The  Convention  then  adjourned. 


AFTERNOON  SESSION. 
Mr.  MURPHY  orlered  the  following: 
"Resolved,  That  when  this  Convention  s-hall  be  resolved 
into  cOiiiinittee  ot   the  whole  on  the    report  of  committee 
number  one,  member*  engaged  in  debate  shall  not  b-- al- 
lowed to  speak  more  than  live  minutes  on  any  one  ques- 
tion." 


On  t'ns  he  demanded  the  previous  question. 
Mr.  CliATFISLD  said  that  this  was  not  iu  or- 


h.>  PRESIDENT  said  that  as  it  relaied  to  the 
pending  business  n  was  in  order. 

Mr.  CHATFIELD  then  moved  to  insert  ten 
minutes  instead  ot  five  minutes. 

Mr.  MURPHY  would  not  accede  to  this. 

On  a  count  (o  second  the  previous  question,  only 
49  rose  in  all. 

The  ayes  and  noes  were  demanded. 

Mr.  MARVIN    said  that  could  not  be  done. — 

e  raised  'he  question  of  order. 

The  PRESIDENT:    If  is  too  late.     (A  laugh.) 

The  ayes  and  noes  were  demanded  on  it. 

The  previous  question  was  seconded.  Ayes 
61,  noes  33. 

The  question  was  then  taken,  on  "  shall  the 
main  question  be  now  put  ?"  Carried — ayes  54, 
noes  42. 

The  resolution  of  Mr.  MURPHY  was  carried— 
Ayes  59,  noes  43. 

Mr.  CHATFIELD,  (who  had  demanded  the 
ayes  and  noes  on  the  two  last  calls)  then  offered 
the  following  : — 

Resolved,  That  this  Convention  do  now  finally  ad- 
journ without  delay." 

Mr.  STEPHENS  called  for  the  ayes  and  noe* 
on  the  resolution. 

Mr.  STRONG  moved  to  lay  it  on  the  table. 

The  ayes  and  noes  were  again  called  for  on  it. 

Mr.  WORDEN  also  moved  to  lay  it  on  the  ta- 
ble. 

Mr.  STRONG  withdrew  the  motion  to  lay  it  on 
the  table. 

Mr   SHEPARD  renewed  it. 

Mr.  WORDEN  begged  the  gentleman  from  Ot- 
sego  to  withdraw  it. 

Finall,  Mr.  CHATFIELD  withdrew  it. 

Mr.  BAKER  then  offered  the  following  :— 

Resolved,  That  the  committee  of  the  whole  having 
charge  of  the  report  of  commit  ee  number  One,  be  in- 
structed so  to  settle  said  report,  that  the  Senate  shall  con- 

gist  of members,  to  be  elected  in districts, 

and  for  a  term  of years." 

Mr.  B.  said  that  he  had  offered  this  in  blank, 
so  as  to  enable  the  Convention  to  come  to  a  vote 
on  these  several  propositions,  that  this  body  may 
provide  for  the  number  as  soon  as  possible,  and 
take  the  vote  on  the  highest  number ;  and  not  only 
provide  as  to  the  number  of  Senators,  their  term, 
arid  the  size  of  the  districts,  but  also  allow  every 
member  to  present  his  proposition,  and  have  a 
vote  on  it — even  though  the  previous  question 
should  be  moved  here ;  and  the  question  of  single 
or  double  districts  could  be  settled  hereafter. 

Mr.  BAKER  had  first  moved  to  leave  the  Sena- 
tors in  blank  ;  and  on  Mr.  RUSSELL'S  suggestion, 

he  put  in  " districts,"  and  on  Mr  PERKIN'S 

he  put  in  " years." 

The  PRESIDENT  :  The  question  is  then  on 
adopting  the  resolution  in  blank. 

Mr.  WORDEN  hoped  the  gentleman  would 
put  in  50  Senators  ! 

Mr.  BAKER  would  accept  that,  unless  the 
question  was  to  be  taken  on  each  blank  sepa- 
rately. 

Mr.  PATTERSON:  The  question  must  be 
taken  on  filling  the  blanks  first. 

Mr.  STETSON   called   the  ayes  and  noes  on 


der. 


!  this. 


Mr.   CHATFIELD  :  The  question  is  first  on 


396 


the  passage  of  the  resolution  ;  and  then  on  filling 
the  blanks. 
The  PRESIDENT  :  The  question  is  first  on 
filling  the  blanks. 
Mr.  BAKER  proposed  50  Senators.     He  would 
not  say,  however,  that  he  would  vote  for  that. 
Mr.  CHATFIELD  proposed  48  Senators  ;  Mr. 
BASCOM,  46  ;  Mr.  RUSSELL,  42  ;  Mr.  WOR- 
DEN,  40;   Mr.  RICHMOND,  39;   Mr.  WHITE, 
36  ;  Mr.  ST.  JOHN,  32. 
Mr.  CROOKER  proposed  to  take  the  ayes  and 
.noes    on  each    number,  so  that  they  could  see 
-whether  they  could  get  56  to  vote  on  any  one  of 
them,  so  as  to  get  them  out  of  the  fog. 
The  PRESIDENT  :  The  question  will  be  first 
on  the  highest  number. 
Mr.  TAGGART  said  he    wished    to  present 
some  facts.     He  wanted  an  increase  of  Senators, 
but  50  was  too  large  ;  he  thought  that  whatever 
number  was  fixed  on  now  must  hereafter  be  in- 
creased by  the  Legislature  under  a  new  ratio.  The 
number  thirty-two  left  too  many  large  fractional 
deficiencies  and  excesses.      It  would  perhaps  be 
impossible  to  divide  the   State  into  single  Senate 
districts  without  great  inequalities,  unless  we  di- 
vide counties.  But  a  plan  could  be  adopted  much 
more  just  and  uniform  than  that  of  the  commit- 
tee.    He  had  drawn  one  out  for  single  districts, 
and  an  increased  number  of   Senators,  and  he 
would  refer  to  it,  thus  :  — 
APPORTIONMENT  WITH  THE  RATIO  AT  61,500. 
1    Suffolk.              31,820                  Excess.    Deficiencies. 
'  Queens,              26,857-68,677                            2,823 
2.  Kings,                 61,611                        161 
3-7  New-  York,      295,662                                          2,363 
8.  Richmond,          12,413 
Westchester.     43,231—65,644                             6,856 
9.  Orange,              48,741 
Rockland,           12,269-61,070                               490 
10.  Ulster.                45,6-29 
Sullivan,             18,099—63,728       2,228 
11.  Putnam,              12,842 
Dutchess,           51,276—64,118       2,618 
12.  Columbia,           39,786 
Greene,              30,271—70,057       8,567 
13.  Albany,               68,582                     7,082 
14.  Rensselaer,        58,671                                          2,829 
16.  Washington,      39,078 
Warren,              14,711—53,789                            7,711 
16.  Clinton.              27,115 
Essex,                -38,415 
Franklin,             16,696-67,162       5,662 
J7.  St.  Lawrence,    58,6-26                                         2,874 
IS.  Herkimer,          36,366 
Fulton,                18,210 
Hamilton,             1,814-56,399                            6,110 
19.  Saratoga,            39,843 
Schenectady,      15,800—55,643                            6,857 
20.  Montgomery,     23,425 
Schoharie,          31,885-60,310 
21.  Otsego,               49,761                                        11,739 
22.  Delaware,          36,118 
Chenango,          39,4-25-75,543      14,043 
23.  Madison,             40.021 
Cortland,             24,861—64,882       3,382 
•24.  Jefferson,           62,625                      1,136 
26.  Oneida,               78,696                   17,196 
26.  Lewis,                 19,1-25 
Oswego,              46,801-66,9-26       4,426 
37.  Onondaga,          67,419                     6,919 
;38.  Broorae,             25  ,-266 
Tioea,                22,039 
Chemung,          23,28-2-70,687       9,087 
99.  Cayuga,             48.338                                      IV  62 
30.  Seneca,              24-243 
Wayne,              41,194-65,437       3,937 
31.  Tompkins,         37.512 
Yates.                 -20,466-57,978                            3,622 
33.  Ontario,             40,717 
Livingston,        36,048—76,816      16,316 

33.  Mnroe,               63,588                     2,089 
4.  Steuben,             60,771                                      10,739 
5.  Orleans,              25,443 
Niagara,              31,445-56,888                             4.61S 
36   Genesee,            -28,140 
Wyoming,          31,108-69,248                             2,252 
37.  Alh-gany,            80.955 
Catiaraugus,      29,767—60,722                              778 
38.  Erie,                    63,«7l                    7,171 
39.  Chautauque,      45,933                                          16,617 

PROPOSED  MODIFICATION  OF  APPORTIONMENT. 
22.  Delaware,                       36,118 
Broome,                            25  266 

61,334                                  116 
23.  Madison,                          40.021 
[In  Oneida] 
Sangerfield,  BrMgewa- 
ter,  Augusta,  Markhall, 
Paris,  Vernon,    Kirk- 
land    and    New-Hart* 
ford,                             21,056 

61  077                               423 
25.  Balance  of  Oneidn,        67.640                           3,360 
27.  Balance,  of  Onoudagh,  59,863                           1,637 
28.  Chenango,                      39  J-24 
Cortland,                         24,861 

64,236            2,786 
29.  Tioga,                               22,030 
Toropkins,                      37,612 

69,551                              1,949 
30.  Cayuga,                          48,338 
[In  Onondaga.] 
Skaneatelas  and 
Elbridge,                      7,666 

66,944                            6,609 
32.  Ontario,                          40,717 
Yates,                              20,466 

61,183                                317 
34.  Chemung,                       23,282 
Steuben,                        60,771 

74,063            12,553 
37.  Livinerston,                    36,098 
Allegany,                        30,955 

67,053                                   &653 
39.  Cattaraugus,                   29,767 
Chautauque,                   46,983 

75,760            14.2fO 
TABLE  OF  INEQUALITIES. 

TO   THE   AJSEMBLT. 

Caynga,                        48,338  |   9g  Q99    6Members> 
Otsego,                            49,761  $ 
Wyoming,                       26,283 
Queens,                           26,837 
Clinton,                            27,1  '  6  j,  Ifi5  81Q    g  Membera. 
Cortland,                        24,861 
Brcome,                          25,266  1 
Orleans,                         26,443  J 

57,721 
Richmond,                       12,413  ^ 
Putnam, 
Rockland,                       12,269  j.  84  g31    fi  Mombcrf 
Schfnectady,                  18.ROQ  { 
Franklin,                         16,69^  | 
Warren,                        14,711  J 
Wyoming,  Queens,  and  Clinton—  80.240    3  Members. 
Richmond,  Putnam,  &  Rockland—  37  624    3 

42.716 
Cavuea.                                      4«,'3S    3  Members. 

^jaj  "»    t                                                             jc  QAI       n                   1C 

Oswego,                                     40,sui    * 
Genesee,                                    28  '40    2           " 
Clinton,                                         27,115     1 
Clinton,  27,115  1    Richmond  and  Rockland,  24,682-^ 

397 


Representative  population  in  1845,  2,389,548 

Increase  from  1840  to  1845,  175674 

Supposed  increase  from  1945  to  1855,  35,1 148 

2750696 

The  following  will  show  the  total  increase  ot 
population  in  9  counties,  in  which  are  cities  and 
large  villages : 

Pop.  1S40.  Pop. 1345.       Increase. 

Albany,                 68536  77268               8732 

Erie,                        62251  79635              16384 

Kings,                     47613  79691              31078 

Monroe.                 64912  70999               5987 

New-York,          212932  371223             58291 

Onondaga,             67915  70175               2260 

Oswego,                 43S20  48441                4621 

Bensselaer,          60303  62333              2036 

Niagara,               31114  34550               3436 

Total  increase,  132824 

Increase  in  other  parts  of  the  State  42,750 

176,574 

Ratio  now  for  member  of  Assembly,  18,746 
In  1855,  upon  same  ratio  of  increase,  it  would  be21,490 
COUNTIES  THAT  MAY  LOSE  A  MEMBER, 
Members.           Pop.       Supposed  frac.  1 

Suffolk,                   2                    31820  10330 

Orange,                 3                   48714  4734 

Greene,                 2                  30271  S7S1 

Montgomery,        3                   28425  6605 

Schoharie,            2                  31885  10385 

Otsego,                  3                   49761  5781 

Cayuga,                 3                   48338  4358 

Genesee,               2                   28140  6630 

Livingston,           2                   32-270  10780 

AUegany,               2                    30955  9465 

Cattaraugus,         2                   29767  8270 

UNREPRESENTED    FRACTIONS    FOR  ASSEMBLY 

IN  EIGHT  COUNTIES. 

Queens,                          29S37— 1  8091 

Ulster,                             45629—2  8187 

Coitlat.J.                          64861—1  6115 

Broone,                           26266—1  6520 

Sen  ca,                           24243—1  6497 

Orleans,                           25443—1  7697 

Wyoming,                      26288—1  7542 

Clinton,                         27115—1  8369 


57966 

Mr.  TAGGART  said  that  his  plan  had  fewer 
inequalities  than  any  he  had  seen.  Mr.  T.  then 
went  on  to  sustain  his  proposition  as  present  ing 
less  inequalities  lhan  any  other  yet  before  the 
committee.  He  pointed  out  the  disparity  in  the 
increase  of  p<  pulation,  between  the  several  coun- 
ties in  the  State — the  increase  being  greatest  in 
cities  and  villnges,  while  in  the  rural  counties 
the  population  wa»  nearly  stationary.  Arid  in 
makit  g  an  apportionment  of  representatives  he 
ur^d  'hat  these  facts  should  he  taken  into  con- 
sideration.  The  agricultural  counties  ne 
contended  should  have  secured  to  them  their 
fair  representation — which  he  asserted  would 
in  time  be  encroached  upon  by  the  commer- 
cial counties,  having  within  them  the  large 
cities  and  villages.  An  increase  of  represen- 
tation would  lend  to  greatly  obviate  th'jse  diffi- 
cu'ties  He  preferred  lhat  the  senate  shauld 
be  fixed  at  thiry-nine  n<  w,  and  then  providing 
that  ,he  leeislmuie  should  fix  the  number  ab^o 
lutely  in  1853.  or  1645,  or  else  leave  it  to  a  future 
legislature.  The  same  principle  he  would  also 
apt  ly  to  the  assembly,  increasing  its  number  in 
the  same  proportion  as  the  senate.  He  called 
upon  gentlemen  to  examine  this  question,  and  see 
whe  her  the  general  principles  he  had  stated  were 
not  correct,  and  supposed  by  facts  of  undoubted 
and  unquestionable  character. 


The  proposition  on  filling  the  blank  with  50 
was  here  withdrawn. 

Mr.  RUSSELL  here  proposed  to  fill  the  blank 
with  42. 

Mr.  KIRKLAND  said  that  the  apportionment 
as  mentioned  by  the  gentleman  Irom  Genesee, 
produced  the  most  glaring  inequalities  presented. 
In  two  adjoining  counties  it  left  an  excess  of 
17,000  in  one  county,  and  a  deficiency  in  the  other 
county  of  71,000.  Was  that  equality,  and  would 
any  system  like  that  produce  satisfaction.  And 
the  gentleman  proposes  to  create  that  inequality 
still  further  by  dismembering  one  of  the  oldest 
counties  in  the  State.  It  was  impossible  to  divide 
the  State  in  equal  districts;  it  was  not  in  the 
power  of  man  to  do  it.  But  this  question  was 
not  rightly  here — the  only  legitimate  one  here 
was,  shall  the  legislative  forre  to  increased  ?  As 
to  that  he  denied  that  the  people  had  at  any  time, 
in  any  manner  on  any  occasion  demanded  this 
increase.  It  was  undoubtedly  the  design  to  di- 
minish the  duties  of  the  senate,  and  yet  when 
about  to  deprive  this  body  ot  about  half  its  powers 
and  duties,  we  are  asked  to  increase  its  number. 
What  consideration  of  propriety  or  necessity 
should  induce  this  increase  under  such  circum- 
stances? It  would  not  tend,  as  had  been  amply 
shown,  to  promote  an  equality,  and  an  in- 
crease of  number  instead  of  facilitating  business 
he  believed  would  retard  it,  and  lengthen  the 
session  of  the  Legislature.  It  would  also  in- 
crease  the  expense  to  the  people.  Why  then  in- 
crease it?  There  was  no  reason  for  it;  and  he 
hoped  gentlemen  would  adhere  to  the  present 
Constitution. 

Mr.  TALLMADGE  deprecated  the  increase  of 
legislative  force  as  tending  to  add  some  $3,000,- 
000  or  more  of  expense  to  the  State  in  the  matter 
of  legislation  in  the  course  of  twenty  years.  No 
number  but  32  and  none  above  it  would  get  his 
vote.  He  should  also  prefer  if  the  term  was  to 
be  made  3  years,  that  the  Senate  should  consist 
of  24.  He  urged  that  it  was  impossible  to  agree 
upon  any  basis  of  representation,  and  any  attempt 
to  arrange  it  here  could  be  but  unsuccessful  so  far 
as  giving  general  satisfaction,  was  concerned.  He 
urged  also  against  the  proposition  for  dividing 
counties  for  single  Assembly  districts  as  tending 
to  produce  confusion. 

Mr.  MARVIN  was  in  favor  of  an  increase  of 
the  Senate.  In  his  argument,  he  should  assume 
that  hereafter  that  body  would  cease  to  be  a  ju- 
dicial tribunal.  He  believed  that  every  legisla- 
tive body  should  be  sufficiently  large  to  make  it 
sympathize  somewhat  with  the  feelings  of  the 
people.  Look  at  our  State,  stretching  from  the 
ocean  to  the  lakes,  and  soon  to  have  a  population 
of  5,000,000,  and  he  would  ask  if  32  was  a  suffi- 
cient number  to  represent  all  the  interests  of  such 
a  State?  Under  the  Constitution  of  1777,  it  was 
contemplated  that  the  Senate  might  consist  of 
100  members  Why  was  it  kept  down  to  32  in 
our  present  Constitution  ?  He  had  always  sup- 
posed that  it  was  because  that  was  large  enough 
for  a  court.  But  as  a  mere  legislative  body,  it 
was  too  small.  If  the  gentleman  from  Oneida 
had  heard  nothing  of  the  call  for  an  increase  Mr.M. 
could  tell  him  that  hisconstituents  had  agitated  this* 
subject  and  were  in  favor  of  increase  of  the  senate. 
Mr.  M.  proceeded  to  examine  the  principle  upon 


398 


which  legislative  bodies  were  organized.  In  a 
State  the  legislature  legislated  for  all  the  inte- 
rests of  the  people ;  for  schools  and  town  affairs, 
and  all  the  interests  of  the  people.  Before  the 
Constitution  of  '21  was  adopted  there  was  a  se- 
nator to  every  40,000  inhabitants.  Now  it  was 
proposed  to  have  one  for  only  every  70,000.  His 
own  opinion  was  that  there  should  be  48  mem- 
bers. Were  48  too  many  to  legislate  for  the  in- 
terests of  the  state  ?  Should  those  interests  be 
entrusted  to  the  decision  of  a  quorum  of  a  majori- 
ty of  32,  which  would  be  only  9  ?  The  people 
must  and  would  be  heard  through  the  legislature. 
Impose  all  the  restrictions  you  may  and  the  day 
would  come  when  all  plans  for  incorporations 
would  find  their  way  into  the  senate,  and  then 
the  votes  of  so  small  a  number  would  be  an  ob- 
ject for  the  approach  of  certain  appliances.  He 
would  not  say  but  what  our  previous  legislation 
had  been  as  pure  as  that  of  any  other  State.  But 
he  referred  to  facts  to  show  that  large  numbers 
were  less  likely  to  be  unduly  influenced.  He 
wanted  the  people  proper]y  represented,  and  the 
representation  to  be  so  enlarged  that  each  senator 
should  feel  himself  responsible  to  all  his  consti- 
tuents. Why  did  he  come  here  prepared  to  vote 
for  single  districts,  but  because  the  people  were 
dissatisfied  with  four  senate  districts  ?  They 
had  been  compelled  to  vote  for  men  living  a  hun- 
dred miles  off  who  knew  nothing  of  their  inte- 
rests, and  who  would  often  vote  against  them. 
They  wanted  to  know  their  senator  — to  shake 
hands  with  him.  He  would  not  stop  to  consider 
expense  merely  in  this  great  question  of  equal 
and  full  representation.  He  would  make  the  as- 
sembly consist  of  144.  48  in  one  house  and  144 
in  the  other  would  be  the  plan  that  would  suit 
him  best.  If  the  Court  of  Errors  was  to  be  re- 
tained, he  would  oppose  an  increase  of  the  se- 
nate. But  a  legislature  should  consider  all  the 
interests  of  the  people,  and  he  would  make  it  as 
popular  as  possible.  He  would  give  as  full  a 
representation  to  the  people  as  he  could. 
Mr.  W.  TAYLOR  liked  to  see  a  proposition  made 
in  detail,  like  that  of  the  gentleman  from  Gene- 
see.  It  was  very  easy  for  a  man  to  make  up  a 
speech  which  would  loqk  very  well,  on  a  propo- 
sition without  any  details.  Mr.  T.  then  went  on 
to  compare  that  proposition  with  the  one  intro- 
duced by  the  committee,  showing  the  inequalities 
to  be  far  greater  in  the  plan  of  Mr.  TAGGART, 
than  in  that  of  the  committee.  So  also  in  regard 
to  the  proposition  of  Mr.  CHATFIELD,  for  46  Se- 
nators; he  had  made  a  comparison  there,  and 
found  the  inequalities  to  be  quite  as  great.  Mr. 
T.  referred  to  eight  particular  counties,  as  show- 
ing this,  remarking  that  if  the  whole  plan  was 
gone  through  with,  even  greater  discrepancies 
would  be  found.  Now  he  said  he  did  not  suppose 
the  gentleman  had  Otsego  on  his  mind,  but  it 
happened  that  Otsego  came  out  exactly  even. 

Mr.  CHATFIELD  supposed  the  gentleman  did 
not  think  of  Onondaga  when  he  made  out  this 
apportionment. 

Mr.  TAYLOR  defied  the  gentleman  to  place 
Onondaga  with  any  other  county  around  it,  with- 
out making  an  excess  of  some  25,000. 

Mr.  CHATFIELD  said  Onondaga  was  happy 
in  its  locality. 

Mr.  TAYLOR:  Certainly.  Nature  put  us  there, 


and  we  have  no  wish  to  get  away  from  it.  Mr. 
T.  urged  that  it  could  not  be  avoided  under  any 
plan  of  single  districts,  unless  a  division  of  coun- 
ties was  resorted  to.  He  did  not  believe  that  the 
Convention  was  disposed  to  do  this. 

Mr.  STETSON  thought  that  the  gentleman 
from  Dutchess  (Mr.  TALLMADGE)  was  mistaken, 
as  to  the  increased  expense  involved  in  an  in- 
creased legislative  force.  If  the  Senate  was  in- 
er<  ased  to  40,  the  House  to  150,  and  adopting  the 
proposition  for  a  90  days  session,  he  had  found 
that  the  increased  expense  would  not  be  over 
$10,080  or  $1 1,000  per  annum.  And  further— 
this  great  question  of  popular  representation,  as- 
serted by  our  forefathers  through  so  much  toil  and 
blood, was  not  to  be  put  in  opposition  to  the  expense 
of  enlarging  or  repairing  this  miserable  old  capitol 
already  falling  down  about  our  ears.  When  ar- 
guments like  these  were  put  forth  against  a  mea- 
sure, it  was  an  acknowledgment  of  a  deficiency 
of  better  matter.  But  leaving  this,  he  would  ask 
any  gentleman  here  whether  a  population  of  16,- 
000  was  not  large  enough  for  any  man  to  repre- 
sent faithfully  ?  This  was  as  many  as  formed  the 
basis  in  1821.  And  were  not  60,000  enough  for 
the  ambition  of  a  Senator  ?  This  was  a  question 
in  which  the  people  were  interested.  It  might 
be  wise  to  spend  nine  days  in  the  discussion  of 
the  question  whether  the  Governor  should  be  30 
years  of  age,  and  then  throw  out  this  proposition 
as  unworthy  of  consideration.  But  such  was  not 
the  opinion  of  Mr.  S.  He  trusted  this  conven- 
tion would  consent  to  a  limited  increase  ol  legis- 
lative representation.  The  people  did  want  sin- 
gle districts,  but  tj  accomplish  that,  the)  did  not 
want  a  violation  of  every  principle  of  harmony. — • 
He  objected  to  the  plan  of  the  committee,  that  it. 
would  lead  to  monstrous  frauds  in  New  York  by 
colonizing.  He  would  increase  the  number  to 
40,  make  double  districts,  and  have  one  Senator 
elected  every  year. 

Mr.  FORSYTH  desired  .to  say  a  very  few  words 
in  reply  to  Mr.  KIRKL.AND.  In  at  gentleman  had 
asked  in  a  very  significant  manner,  when,  where, 
and  in  what  manner,  the  people  had  demanded 
an  increase  of  the  number  of  Senators.  Mr.  F. 
would  admit  thai,  this  might  not  have  been  de. 
rnanded  in  terms,  but  the  people  have  insisted 
that  the  Senate  should  be  popularized.  N'>nr- 
would  deny  but  what  the  voice  of  the  people  had 
C'ime  to  us  in  favor  <,f  single  Senate  disuu'ts. — 
Difficulties  had  been  urged  in  the  way  t,f  ac- 
complishing this,  but  he  fusied  they  would  not 
be  found  to  be  insurmountable  1C  we  look  at  th« 
history  of  the  Senate,  we  should  find  that  it  had 
never  been  a  popular  body,  nor  had  it  ever  en- 
joyed  to  any  extent  the  popular  confidence  or 
regard.  No  system  can  be  devised,  no  number 
fixed  upon  that  would  not  present  irregularities 
which  could  not  be  remedied,  unless  we  disregard- 
ed county  lines  He  had  figured  until  he  was 
tired,  and  had  not  been  able  lo  fix  upon  any 
number  that  could  avoid  that  difficulty.  He 
could  discover  a  sound  reason  tor  an  increase 
in  the  number  of  Senators  What  had  been 
the  history  of  the  Senate  ?  In  the  early  history  of 
our  Republic,  it  was  thought  necessary  to  inter- 
pose that  body  as  a  barrier  between  the  properly 
holders  of  the  State  and  the  great  body  of  the  peo- 
ple. This  was  the  reason  that  that  body  was  con- 


399 


ot  a  ^inall  Dumber.  It  was  necessary  lor 
(hat  ohj-ct  th.it  it  should  be  small.  But  DOW  tliat 
the  doctrine  of  checks  and  bits  and  bridles  upon 
the  people  was  no  longer  tolerated,  the  time  had 
come  when  this  body  must  be  made  more  repie- 
sentative  and  more  assimilated  10  the  wants  of  the 
people.  He  found  that  the  number  of  32  was  first 
fixed  upon  in  1801,  when  it  was  increased  to  that 


the  present  system  was  very  unequal,  as  much  so 
as  the  rotten  borough  system  of  England.  There 
were  now  counties  who  with  less  than  70,000 
electors,  sent  one-eighth  of  the  members  of  the 
Assembly,  while  the  eight  other  counties,  with 
double  that  number  of»  electors,  had  only  the 
same  number  of  members.  The  majority  of  the 
legislature  represented  a  minority  of  the'people, 


number  from  24,  tha  number   fixed    in  1777.     He   of  some  400,000.     The   people  fully  understood 

mt  - 


not  do  the  men  ot  1&01  the  injustice  to  sup- 1  this  subject,  and  had  demanded  a  reform. 

reason   this  inequality  had    got  into  the 


pose   that    they  acted  without  reference   to  some 
principle.     What  was  then    the    principle  upon 
which  they  adopted  that  number  .'     It  was  because 
32  weie  I  hen  enough,    taking   into    consideration 
the  then  population  of  the  Slate,  and  the  interests 
which  they  were  to  repitsent.     If  32  were  enough 
now,   then    the    number  was   infinitely  too   grea' 
in  1801.     Is  a  body  large  enough  to  represent  the 
people  45  years  ago,  a  sufficiency  for  a  population 
of  3,000,000  ?     The  idea  is  absurd.     If  the  Senate 
is   to  have  any  reference    to    the  interests  of  the 
people,   the   number   must  be  increased.     There 
was  another  consideration  in  the  fact  that  in  num- 
bers there  is  safety.     The  principle  of  safety  is  to 
give  the  right  ot  suffrage  to  every  man.     He  would 
extend  equal    privileges  to   all.     He  did  not  be- 
lieve tha;  any  class  should  exist  which  had  inte- 
rests  adverse  to  another  class.     For  the  very  rea- 
son that  would  lead  him  to   increase  the  number 
of  electors,  he  would  increase  the  number  of  rep- 
resentatives.    It  would  never  be  found  by  refe- 
rence to  history  that  any  bulwark  of  freedom  had 
been  secured  by  an  oligarchy.     Every  small  body 
tends  to  an  oligarchy  and  to  the  promotion  of  ex- 
clusive feelings.     It  was  easier  to  be  corrupted. 
He  believed  with  the  gentleman  from  Essex  (Mr. 
SIMMC  NS)    that  the    assembly,   notwithstanding 
the  torrents  of  abuse  which  had  been  heaped  upon 
it,  had  been  the  true  conservative  body,  and  that 
the  people  have  the  greatest  amount  of  safety  in 
the  assembly.     The  senate  now  represented  no- 
body.    It  did  not  represent  the  whole  people  for 
they  did  not  vote  for  it.     It  did  not,  in  fact,  rep 
resent  the  districts,  for  the   four  senators  repre- 
sented diverse  interests.     There  was  no  congruity 
of  feelings  between  them,  but  they  may  be  ad- 
verse to  one   another.     They  did  not  possess  the 
public  confidence.     No   one  county  felt  that  it 
was  represented,  hence  it  turned  to  its  member  of 
assembly  and   the   senate   was  left  without  care. 
He  said  there  was  one  body  in  this  Union,  which, 
amid  all   the  strifes   of  party  arid   political  zeal, 
had  maintained  its  integrity,  and  the  confidence 
of  the  people.     This  was  the  senate  of  the  United 
States.     And  what  was  the  reason  ?     Its  consti- 
tuency is  singular,  and  the  principle  is  one  which 
we  should   measurably  imitate.     Its  numbers  in- 


The 
pre- 
sent Constitution,  he  ascribed  to  the  fact  that 
the  presiding  officer  of  the  Convention  of  1821 
was  himself  a  representative  of  a  county  which 
had  not  half  the  population  required  to  give 
it  a  representative  on  this  floor.  Was  the  Con- 
stitution then  again  to  be  iramed  so  to  dis.ian. 
chi.se  400,000  ot  the  people  of  this  Slate,  and 
gave  the  election  of  a  majority  of  the  Leyislaiure 
to  a  minority  ot  the  people?  Was  there  any  man 
who  could  give  a  reason  why  the  Senate  shall  not 
he  as  laige  as  the  Assembly?  The  idea  that  it  re- 
quired property  and  money  was  long  since  explod- 
ed. Mr.  W.  urged  that  equality  of  representation 
ould  be  secured  by  an  increase  of  representation. 
There  was  no  necessity  of  legarding  county  lines 
— they  were  but  imaginary  handmaids  to  carry 
out  the  popular  will.  Take  and  divide  the  State 
into  144  Assembly  districts,  by  towns.  Let  the 
inspectors  of  election  of  the  towns  decide  the 
result  of  ihe  election  in  the  several  towns.  Then 
make  every  three  assembly  districts  constitute  a 
single  senate  district,  and  an  equality  of  represen 
tation  would  be  attained  at  once.  He  warned 
gentleman  that  the  people  would  no  longer  sub- 
mit to  the  inequalities  under  which  they  had  been 
laboring  for  the  last  quaiter  of  a  centurv. 

Mr.  BERGEN  here  called  for  the  *  previous 
question,  and  there  was  a  second — ayes  46,  nays 
36  — and  the  main  question  ordered. 

The  first  question  being  upon  filling  the  blank 
with  48— it  was  lost.  Aves  29,  nays  78,— as  fol- 
lows : — 

AYES— Messrs.  Angel,  Archer,  Baker,  Bascom,  Burr, 
Chatfield,  Crocker,  Forsy.th,  Gardner,  Gebhard,  Graham, 
Hawley,  Kennedy,  Marvin,  Mo.-ris,  Nicoli,  O'Conor,  Pat- 


terson,  Pennirnan,  Russell,  Shaver,  Simmons,  W.  H.  S 


pen- 


B. 


crease  with  the   increase  of  the   States.     Every 


cer.  Stephens,  Taft,  laggart,  White,  A.  Wright,  W. 
Wright  -29. 

NAYS—  Messrs.  Ayrault,  H  Backus,  Bergen,  Bouck, 
Bowdish,  Brown,  Brundage.  Bull.  Camhreleng,  D.  D. 
Campbell,  11.  Campbell,  jr.,  Candee.  Clark,  Clyde,  Conely, 
Cook,  Cornell,  Cuddeback,  Dana  Danforth,  Dodd.Dubois, 
Flanders,  Greene,  Harris,  Hotchkiss,  Hunt.  Hunter,  A. 
Huntington,  E  Huntington,  Hutrhinson,  Hyde,  Jones, 
Jordan,  Kemble,  Kingsley,  Kirkland,  Loomis,  McNitt, 
Maxwell,  Miller,  Murphy,  Nellis,  Nicholas,  Parish,  Per- 
k.ns.  Powers,  President,  Khoad.  s.  Richmond.  Riker,  Rug. 
g'e-,  St.  John,  Sal  sbury,  Sears,  Shaw,  Sheldon,  s-hepard, 


Smith,  Stanton,    Stetson.-Stow,    Strong.  Tallmadge.  "J.  J. 

Taylor,  W.  Taylor,  Tilden,  Townsend,  TMthili.  Ward, 

n.  w  interest  and  constituency  introduced  into  the  Warren,  Waterbury.  WiUard,  Wituecx,  Wood,  Worden, 
Union  immediately  had  its  two  senators  in  that  Yawger,  Young— 78. 


body.  Mr.  F.  considered  this  a  sufficient  argu- 
ment in  refutation  of  the  absurd  position  that  our 
senate  should  be  32  because  it  had  always  been 
32. 

Mr.  WORDEN,  assumed  that  if  the  people 
who  sent  us  here  manifested  more  partiality  of 
feeling  on  any  one  subject  of  reform  than  another, 
it  was  in  relation  to  the  division  of  the  State  into 
single  districts.  And  for  what  reasons  ?  To 
popularize  representation.  He  contended  that 


Mr.  WORDEN  laid  on  the  table  a  motion  for  a 
reconsideration. 

The  question  was  then  taken  on  filling  the 
blank  with  42,  and  it  was  lost — ayes  23,  noes  84. 
as  follows  : 

AYES — Messrs,  Archer,  Bascom,  Chatfield,  Crocker, 
Danforth,  Gardner,  Gebhaid,  Hawley,  Jones,  Marvin' 
Morris,  O'Couor,  Patterson,  Penniman,  Perkins,  Russell, 
W.  H  Spencer,  stow,  Tait,  Taggart,  Worden,  A.  Wright 
W.  B.  Wright-23. 

NAYS— Messrs.  Angel,   Ayr&ult,    H.  Backus,    Bakor, 


400 


Bergen,  Bouck,  Bowdish  Biown,  Brundage.  Bull,  Burn 
cambreleng,  D  D  Campbell,  R  Campbell,  jr.,  Caiulee> 
Clark,  Ciyde,  Conely,  Cook,  Cornell,  Cudiieback,  Dana> 
Dodd,  Dubois.  Flanders,  Fo-'syth,  G  aham,  Greene, 
Wa.ris,  Hotchkiss.  Hunt,  Hunter,  A  Huntington,  E.  Hunt- 
ing on,  Hmchinson,  Hyde,  Jordan,  Kemble,  Kennedy, 
Kinjfsl-y,  Kirkland,  Loomu,  McNitt,  Maxwell,  Miller, 
Murphy,  Nellis.  Nicholas,  Nicoll,  Parish,  Powers,  Presi- 
dent, Ruoades,  Richmond,  Riker,  Ru^gles,  St.  John,  Sa 
lisbury,  Sears  Shaw,  Sheldon,  Shepard,  Simmons,  Smith, 
S.anton,  Stephens,  Stetson,  Strong,  Swackhamer,  Tall- 
mad  'e,  J.  J.  Taylor,  W.  Tayior,  Tilden.  Townsend,  Tot 
hill,  Vnche,  Ward,  Warren,  Waterbury,  White,  Willard, 
Wiibevk,  Wood,  Yawger,  Young— 84. 

Mr.  RUSSELL  laid  on  the  table  a  motion  for 
a  reconsideration. 

The  question  was  next  taken  on  filling  the 
blank  with  40,  and  it  was  lost— ayes  46,  nays  63, 
as  follows : — 

AYES— Messrs.  Angel,  Archer,  Ayrault,  Baker,  Ba«- 
com,  Burr,  D  D  Campbell,  Chattield,  C  nely,  Crooker, 
Da.iiortb,  Dodd,  Imbois,  Forsyth,  Gar.lner,  O- bhard 
Greene,  Hawl^y,  Jones,  Marvin,  filler,  Morri  ,  Murphy, 
O'Conor,  I'atter?on,  Pennimari,  Riciimund,  Ruggles.  Rn«. 
sell,  Salisbury,  Shaver,  Simmons,  Smith,  W.  H.  Spencer, 
Stets-on,  Scow,  Swackhamer,  Taft,  Taggart,  Tilden, 
Townsend,  Willard,  Woiden,  A.  Wright,  W.  B.  Wright, 
Young— 46. 

NAYS— Messrs  H.  Backus,  Bergen,  Bouck,  Bowdish, 
Brown,  Brundage,  Cambreleng,  R.  Campbell,  jr.  Cnndee, 
Clark,  Clyde,  Cook,  Cornell,  Cuddeback,  Dana,  Dorlon, 
Flanders,  Graham,  Harris,  Hoffman,  Hotchkiss,  Hunt. 
Hunter,  A.  Huntington,K.  Hnntingion,  Hutchmson.Hyde, 
Jordan,'  Kemble,  Kennedy,  King&ley,  Kirkland,  Loomis, 
McNitt,  Maxwell,  Nellis,  Nicholas.Nicoll,  Parisli,  Powers, 
President,  Rhoades,  Riker  St.  John,  Sears,  Shaw, Sheldon, 
Shepard,  SUnton,  Stephens,  Strong,  Tallmadge,  J.  J. 
Taylor,  W  Taylor,  Tuthili,  Vache,  Ward,  Warren,  Wa. 
terbtiry.  White,  Witbeck,  Wood,  Yawger— 63. 

On  filling  the  blank  with  thirty-nine,  there 
were  ayes  42,  nays  67,  as  follows : 

AYES-Messrs.  Angel,  Archer,  H.  Backus,  Baker,  Bas- 
com  Bergen,  Bowdish,  Bull  D.D  Campbell,  Conely,  Dan- 
forth  Dodd,  Dubois,  Gar.Jner,  Gebbard,  Harris,  Kemble, 
Marvin,  Miller,  Morris,  Murphy,  Nelli*,  O'Conor,  Patter- 
son Penniman,  Perkins,  Richmond,  Rugdles,  Russell, 
Salisbury,  Shaver,  Smith,  W.  H.  Spencer,  Stow,  Strong, 
Taft't,  Taggart,  Townsend,  Worden,  A.  Wright,  W.  B. 
Wright,  Young— 42. 

NOES— Messrs.  Ayrault,  Bouck,  Brown,  Brundage, 
Burr,  Cambreleng,  R.  Campbell,  Jr.  Candee,  Chatfteld, 
Clark,  Clyde,  Cook,  Cornell,  Crooker,  Cuddeback,  Dana, 
Dorlon,  Flanders,  Graham,  Hawleyv  Hoffman.  Hotchkiss, 
Hunt,  Hunter.A.  Huntington,  E.  Iluntington,  Hutchinson, 
Hyde  Jones,  Jordan,  Kennedy,  Kingsley,  Kirkland,  Loo- 
mis  McNitt,  Maxwell.  Nicholas,  Nicoll,  Parish,  Poweis, 
President,  Khoades,  Riker,  St.  John,  Sears,  Shaw,  Sheldon, 
Shepard  Simmons,  Stanton,  Stephens,  Stetson,  Swack- 
hamer Tallmadge,  J.  J.  Taylor,  W  Taylor,  Tilden,  Tut- 
hili, Vache,  Ward,  Warren.  Waterbury,  White,  Willard, 
Witbeck,  Wood,  Yawger— 67. 

Mr.  RICHMOND  laid  on  the  table  a  motion  for 
a  reconsideration. 

The  motion  to  fill  the  blank  with  36  was  also 
lost— ayes  44,  noes  62. 

Mr.  PERKINS  laid  on  the  table  a  motion  for  a 
reconsideration. 

The  question  then  recurred  on  filling  the  blank 
with  32,  the  present  number  of  Senators.  This 
was  carried — ayes  63,  noes  43,  as  follows  : 

\YES-Messrs.  Angel,  Ayrault,  H.   Backus,  Bergen. 
\ck,  Brown,  Brundage,  Burr,   Lambreleng,   R.  Camp- 
Jr  Candee,  Clark,  Clyde,  Cook,  Cornell,  Cuddeback. 
v    Flanders,  Graham,  Hotchkiss,  Hunt,   Hunier,  A- 
inston,   E.  Huntington,  Hutchinson,  Hyde,  Jordan, 
\^dy  Kingsley,  Kirklanci,  Loomis,  MoNitt,  Maxwell, 
W   Nicholas,  Nicoll,  Parish,  Patterson,  Powers,  Pre- 
Rhoades,  Riker,  Ruggles,  St.  John,  Sears,  Shaw, 
i   Shepard,  Stanton,  btephens,  Strong,  Tallmadge, 
,lor  W.  Taylor,  Townsend,  Tu thill,  Ward,  War- 
terbury,  White,  Witbeck,  Wood,  Yawger— 63. 


NOES  --.Messrs  Archer.  Baker.  Basrom.  Bowdish  Bull, 
D.  D.  <  ampbe  1,  CluthVld,  Crooker  Danlorth  Dodd  Dor- 
Ion  Dubois  Gardner  Gebhard,  Harris.  H«wlev,  Hoftman, 
Jones.  Kemble.  Marvi. .,  Miller.  Morris,  Nellis  0'<  onor, 
Penniman  Perkins  Richmond.  Russell.  Salisbury,  Shav*  r, 
Smith  W  H  Spencer.  Stetson.  Stow.  Swackhamer  Tafl, 
Taggart,  Tilden,  Vache,  Willard,  Worden,  A.  Wright,  W. 
"  Weight,  Young- 43. 

Mr.  CHATFIELD  laid  on  the  table  a  motion 
for  a  reconsideration. 

The  Convention  then  adjourned  to  9  o'clock  to 
morrow  morning. 


THURSDAY,  (43d  day,}  July  23. 

Prayer  by  the  Rev.  Mr.  HITCHCOCK. 

Mr.  TU  I  HILL  presented  a  petition  from  citi- 
zens  of  Orange  county,  in  relation  to  the  right  of 
railroad  corporations  to  take  property  of  individu- 
als 

Mr.  BROWN  approved  of  the  memorial,  and 
stated  at  length  many  grievances  the  people  of 
Orange  had  endured  from  the  N.  Y.  and  Erie  rail 
road  Co  He  moved  its  reference  to  committee 
No.  7. 

Mr.  MURPHY  said  the  committee  on  Rights 
&c.  had  considered  and  reported  on  that  very  sub- 
ject, that  no  private  property  shall  be  taken  with- 
out proper  compensation. 

Mr.  BROWN  desired  to  print  the  petition. — 
This  was  opposed  and  lost. 

Mr.  TOWNSEND  would  ask  the  Chairman 
of  committees  No.  14  and  No.  15,  when  they 
meant  to  report. 

Mr.  MURPHY  said,  in  answer  to  the  inquiry 
of  the  gentleman  from  New  York,  that  the  com- 
mittee on  municipal  corporations,  was  ready  to 
report,  except  that  one  of  its  members  of  more 
experience  on  the  subject  than  any  other  upon 
the  committee,  (Mr.  ALLEN,)  being  absent,  in 
consequence  of  sickness,  and  perhaps  other  un- 
controlable  reasons,  the  report  could  not  be  sub- 
mitted to  him,  as  was  desirable,  before  it  was  made 
to  the  house.  He  said  he  would  embrace  the  op- 
portunity to  correct  a  statement  which  had  gone 
forth  in  one  of  the  public  prints,  founded,  it  was 
said  in  that  journal,  upon  the  remark  of  a  mem- 
ber of  the  committee,  that  the  committee  had 
met  but  once.  He  felt  bound  to  say  that  such 
statement  was  not  true.  The  committee  had 
held  various  meetings  before  that  time,  and  as 
many  as  any  other  committee  of  the  Convention, 
before  the  gentleman  from  New- York,  to  whom 
he  had  alluded,  had  left  the  sittings  of  the  Con- 
vention, except  the  judiciary  committee.  Since 
then  his  absence,  connected  with  a  desire  to  obtain 
certain  statistical  information  which  had  been 
asked  ibr  in  relation  to  city  expenditures  and  tax- 
ation, had  delayed  ihe  action  of  the  committee. — 
Some  of  its  members  wished  to  wait  for  the  result 
of  the  deliberations  ot  the  Convention  now  sitting 
in  New-York  for  the  purpose  of  revising  its  char- 
ter. But  though  the  other  considerations  to  which, 
he  had  referred,  served  to  reconcile  the  committee 
to  the  delay  which  the  absence  of  the  gentleman 
from  New- \ oik  had  caused,  yet  he  would  repeat 
that  the  committee  had  agreed  upon  a  report 
which  only  awaited  his  return  to  be  made  to  the 
Convention. 

Mr.  MORRIS  said  that  he  held  in  his  hand  a 
letter  from  Mr.  ALLEN,  stating  that  he  was  still 


401 


unwell,  and  that  it  was  uncertain  when  he  would 
be  able  to  leave  home. 

Mr  MURPHY  continued:  In  view  of  the  in- 
formation just  communicated  he  would  inform  the 
house  that  the  committee  would  bring  in  its  report 
on  Tuesday. 

Mr.  MORRIS  read  part  of  a  letter  from  Mr, 


ALLEN,  who  was  sick. 
Mr.  MURPHY  said  then 


that  committee  No. 


14  would  report  next  Tuesday. 

The  Convention  then  proceeded  to  the  consid- 
eration of  the  resolution  submitted  yesterday  af- 
ternoon, in  relation  to  the  number  of  Senators, 
term,  &c. 

As  to  the  term  Mr.  CROOKER  moved  to  fill 
the  blank  with  one  year  ;  Mr.  WHITE  with^wo 
years ;  Mr.  MURPHY  with  three  years  ;  Mr. 
TALLMADGE  with  four  years. 

The  question  was  first  put  on  filling  the  blank 
with  four  years. 

Mr.  TALLMADGE  desired  to  explain  the  rea- 
son for  his  motion. 

The  PRESIDENT  said  the  subject  was  not  de- 
bateable,  as  the  previous  question  ordered  yester- 
day applied  to  the  whole  resolution. 

Mr.  PERKINS  insisted  that  the  previous  ques- 
tion was  only  upon  filling  the  first  blank,  and  he 
appealed  from  the  decision  of  the  Chair. 

The  PRESIDENT  said  if  objections  were  made, 
motions  to  fill  the  remaining  blanks  could  not  be 
entertained,  and  he  therefore  decided  the  question 
to  be  upon  the  resolution  as  it  stood,  with  one 
blank  filled  and  two  unfilled. 

Mr.  WORDEN  said  the  subject  had  better  be 
divided  into  three  resolutions,  or  the  previous 
question  would  apply  to  the  whole  of  them. 

Mr.  JONES  said  the  appeal  was  not  debateable. 

Mr.  MURPHY  said  it  was. 

Mr.  WORDEN  had  anticipated  this  trouble 
yesterday ;  and  then  understood  the  chair  to  de- 
cide that  the  previous  question  would  apply  only 
to  the  first  blank. 

The  PRESIDENT :  No  motion  for  filling  those 
other  blanks  was  made  before  the  motion  for  the 
previous  question  was  made  and  seconded.  Un- 
der the  parliamentary  rule,  no  motion  for  filling 
other  blanks  would  be  in  order  now. 


Mr.  TALLMADGE  hoped  the  Chair  would 
be  sustained  . 

Mr.  PERKINS:  Will  not  the  committee  feel  in- 
structed to  report  no  terms  &c.,  at  all  under  this 
instruction  of  the  resolution  in  blank. 

Mr.  WHITE  would  ask  the  general  consent  of 
the  house  to  allow  these  blanks  to  be  filled. 

The  PRESIDENT:  The  question  is  on 
sage  of  the  resolution. 

Mr.  CHATFIELD  demanded  the  ayes  and  noes 
and  the  resolution  was  adopted  as  it  stood,  ayes 
70,  noes  45. 

Mr.  BAKER  now  moved  a  reconsideration  of 
the  vote  filling  the  blank  with  32. 

Mr.  TALLMADGE  demanded  the  ayes  and 
noes  on  this. 

Mr.  LOOMIS  moved  a  resolution  instructing 
committee  No.  1,  to  make  the  Senatorial  term 
three  years. 

Mr.  CAMBRELING  moved  to  strike  out  three 
and  insert  two 

Mr.  PATTERSON  was  in  favor  of  striking  out 
the  three  years,  but  he  would  make  the  term  for 
a  single  year.  Senators  should  be  as  directly  ac- 
countable to  their  constituents  as  Assemblymen. 
As  long  as  the  Senate  formed  a  portion  of  the 
court  of  last  resort,  there  was  a  propriety  in  hav- 
ing them  elected  for  a  long  term.  But  he  trust- 
ed no  member  would  vote  to  retain  that  body  as 
part  of  the  Court  of  Errors  or  any  other  court. — 


those 

Mr.  PATTERSON  sustained 


the   decision  of 


to    be  a   purely    legislative 
should  be   brought    directly 


And   when    it    was 
body,  the   members 

responsible  to  the  people.  If  they  discharged 
their  duty  faithfully,  they  would  be  sure  to  be 
re-elected.  If  they  were  unfaithful  they  should 
not  be  entrusted  wiih  power  a  second  year.  He 
would  move  to  make  the  term  one  year.  He 
would  do  so  now,  because  if  he  yielded  the  floor 
without  doing  it,  the  previous  question  might  be 
sprung  upon  him. 

After  some  conversation, 

Mr.  JONES  said  that  he  was  in  favor  of  limit- 
ing the  term  of  senators  to  two  years,  in  order 
that  they  might  be  brought  more  immediately 
home  to  their  constituents,  as  regarded  the  ac- 
countability for  th%ir  acts.  He  preferred  two 
years  to  a  one  year's  term.  If  gentlemen  were  so 
exceedingly  desirous  of  having  the  members  of 


the  chair.     The  question  is  on  the  resolution  with  I  both  branches  elected  annually ,they  could  accom- 


one  of  the  blanks  filled  and  the  other  two  not  filled. 

Mr.  BROWN  asked  a  question  relative  to   the 
effect  of  the  previous  question. 

The  PRESIDENT  repeated  his  former  decis- 


ion. 

Mr.  NICHOLAS: 


Then  this  is  a  kind  of  a 


double  gag  law  ;  that  is  all  I  can  say  about  it. — 
(Cries  of"  order"  and  laughter.) 

The  PRESIDENT :  It  is  not  now  in  order  to 
fill  the  blanks. 

Mr.  N1CHOL\S:  Can  I  appeal  fiom  the  Cr.  air? 

The  PRESIDENT:  Yes  sir. 

Mr.  NICHOLAS:  Then  I  do  appeal. 

Mr.  TALLMADGE:  If  we  adopt  this  resolu- 
tion with  two  of  the  blanks  not  filled,  th^n  it  will 
go  the  committee  of  the  whole;  the  subjects  of 
filling  the  blanks  will  then  be  the  subject  of  dis- 
cussion there,  subject  to  the  five  minute  rule  of 
debate. 

The  PRESIDENT  :  That  will  be  the  case. 


27 


plish  their  object  by  a  much  simpler  mode  than 
any  he  had  as  yet  heard  proposed.  Elect  a  larger 
number  of  assemblymen,  and  then  divide  them 
into  two  bodies  ;  send  one  into  the  senate  and  keep 
the  other  here  in  the  assembly  chamber.  But  he 
(Mr.  J.)  considered  that  the  senators  and  assem- 
blymen ought  to  be  elected  by  different  constitu- 
encies, and  he  preferred  the  two  years'  terra  to 
any  other. 

Mr.  A.  W.  YOUNG  could  not  agree  with  the 
gentleman  from  Chautauque  (Mr.  PATTERSON). 
He  wanted  a  longer  term  for  the  senators  than 
one  year.  He  was  willing  to  admit  that  if  the 
people  were  never  to  be  subject  to  popular  com- 
motion, there  might  be  some  strength  in  his  argu- 
ment. The  great  object  to  be  obtained  by  a  long- 
er term  was  stability  in  legislation.  Four  years 
might  be  too  long,  but  one  year  was  not  to  be 
thought  of.  He  desired  a  stable  Senate  ;  one  in 
which  we  should  have  security  against  frequent 
changes  in  the  laws.  He  would  refer  to  the  se- 


402 


nate  of  the  United  States  as  the  standard  of  past 
legislation  in  this  respect.  He  should  go  for  a 
three  years  term. 

Mr.  RUGGLES  moved  to  strike  out  "  one 
month,"  and  insert  "four  years."  He  insisted 
that  the  principal  objections  to  that  term  being 
two  long,  would  be  entirely  removed  when  the 
power  of  appointment  was  taken  away  from  the 
Senate. 

Mr.  PERKINS  said  that  he  wished  to  have  the 
term  fixed  ar  3  years. 

Mr.  WORDEN  believed  that  the  true  conserva- 
tive body  of  this  government  was  the  people,  and 
that  the  Assembly,  coming  more  directly  from 
the  people,  was  the  conservative  body  in  contra- 
distinction from  the  Senate.  He  did  not  say  this 
for  the  purpose  of  flattering  the  public  ear ;  but 
he  believed  that  representatives  of  the  people 
should  merely  reflect  the  popular  will.  He  did 
not  say  that  the  people  were  always  right.  He 
had  for  several  years  of  his  public  life— for  the 
last  16  years — been  proclaiming  to  his  constitu- 
ents that  they  were  wrong  in  many  or  most  of  the 
measures  they  adopted  or  desired  to  adopt.  But 
the  people  must  correct  their  own  errors.  There 
was  a  necessity  for  making  the  Senate,  which 
was  a  legislative  body,  and  nothing  else,  feel  a 
direct  responsibility  to  their  constituents.  They 
must  conform  to  public  interests,  and  they  must 
conform  to  public  will;  and  the  representative 
body  ought  not  to  be  formed  on  a  principle  that 
removed  the  Senate  from  the  action  of  the  public 
will.  There  had  been  instances,  and  he  asked 
the  gentleman  from  Dutchess  (Mr.  TALLMADGE) 
if  he  could  not  remember  a  memorable  instance 
of  a  departure  from  the  expressed  will  of  the 
people,  when  the  Senate,  in  a  time  of  great  party 
and  popular  excitement,  committed  a  high  out- 
rage on  the  public  will  ?  Why  then  not  correct 
this  evil  by  shortening  the  term  for  which  they 
are  elected  ?  They  would  not  commit  any  such 
outrage  if  they  had  to  go  home  at  the  end  of  the 
session,  and  surrender  their  trust  immediately  to 
the  people.  He  concurred  with  the  gentleman 
from  Essex,  that  the  House  of  Assembly  was 
the  conservative  body  of  the  Legislature. — They 
always  would  be  so;  and  a  reason  for  it  was 
their  immediate  responsibility  to  the  people. — 
He  would,  therefore,  be  in  favor  of  a  term  of  one 
year  for  the  Senate,  elected  by  single  districts. — 
Give  us  a  Senate  of  a  sufficiently  large  number, 
representing  fairly  the  public  will,  and  he  would 
go  for  the  one  year  term.  There  was  a  manifest 
impropriety  in  the  proposition  of  the  gentleman 
from  New-York,  (Mr.  JONES)  to  elect  a  large 
number  and  divide  them  into  two  Houses.  There 
would  then  be  no  distinction  between  them,  and 
there  might  as  well  be  but  a  single  House.  A 
Senate  for  a  longer  term  has  a  less  sense  of  re- 
sponsibility than  one  would  have  if  elected  only 
for  a  year.  The  Senate  of  the  United  States  had 
been  referred  to,  as  holding  over  for  six  years. — 
But  that  Senate  represented  various  independent 
sovereignties  ;  and  not  the  body  of  the  people  at 
large ;  there  was  no  analogy  between  the  two 
bodies. 

Mr.  LOOMIS  advocated  the  three  year  term. 

Mr.  CHATFIELD  asked  if  the  proposition  of 
the  gentleman  from  Herkimer,  (Mr.  LOOMIS) 
would  not  necessarily  do  away  with  single  dis- 


tricts. Either  one-third  must  be  elected  annual- 
ly, or  the  whole  body  of  the  Senate  must  be  fresh 
every  three  years. 

Mr.  LOOMIS  said  if  we  had  30  Senators,  he 
would  have  10  districts ;  or  if  they  had  36  Sena- 
tors, he  would  have  12  districts,  and  elect  one- 
third  each  year, 

Mr.  CHATFIELD  was  in  favor  of  having  24 
double  districts ;  48  Senators,  to  be  elected  for  a 
two  years'  term ,  and  one  to  be  elected  for  each 
district  every  year. 

Mr.  TALLMADGE  was  opposed  to  the  pre- 
sent Jacobin  and  revolutionary  spirit  that  was- 
abroad  in  the  land.  He  wished  not  to  have  all 
the  old  landmarks  of  the  Constitution  and  the 
great  institutions  of  the  country  destroyed.  He 
believed  in  the  wisdom  of  our  ancestors,  and  that 
we  ought  not  to  destroy  all  that  is  good  in  our 
land,  because  it  was  a  quarter  or  a  half  century 
old. 

Mr.  CAMBRELENG  said  the  gentleman  from 
Dutchess  (Mr.  TALLMADGE)  had  so  repeatedly 
denounced  the  friends  of  reform  as  revolutionary, 
he  felt  called  up  n,  as  one  of  the  denounced,  to 
vindicate  the  cause.  The  gentleman  had  made 
frequent  appeals  to  the  Convention,  defending  the 
wisdom  of  our  ancestors.  No  one  had  a  higher 
veneration  than  he  had  for  the  patriotic  framers 
of  our  Constitutions  ;  but  we  should  be  unworthy 
of  them,  and  of  ourselves,  if  we  should  sanctify 
and  perpetuate  error,  on  account  of  its  antiquity, 
especially  when  they  themselves  acknowledged 
that  the  science  of  government  was  in  its  infancy. 
The  proposition  introduced  recently  by  the  gen- 
tleman himself,  to  abolish  imprisonment  for  debt, 
is  an  admirable  illustration  that  it  is  still  in  its 
infancy.  It  is  the  very  principle  established  by 
Solon,  twenty-five  hundred  years  ago — that  the 
body  of  the  man  should  not  answer  for  his  civil 
debts.  The  only  difference  is,  that  in  Athen* 
the  debtor  was  the  slave  of  the  creditor  ;  and  in 
this  enlightened  age,  he  is  still,  in  some  coun- 
tries— and  in  some  parts  of  our  own — a  state 
prisoner.  Government  not  in  its  infancy  ?  Why, 
sir,  we  have  not  yet  applied  the  immortal  truths 
and  principles  recorded  by  Montesquieu,  a  hun- 
dred years  ago.  He  tells  us  that  "  the  people,  in 
whom  the  supreme  power  resides,  ought  to  have 
the  management  of  every  thing  within  their  reach 
— what  exceeds  their  abilities,  must  be  conducted 
by  their  ministers.  The  inhabitants  of  a  town 
are  best  acquainted  with  its  wants  and  interests, 
and  are  the  best  judges  of  the  capacity  of  their 
neighbors.  It  is  fit  the  people  should  transact 
by  their  representatives,  what  they  cannot  trans- 
act themselves.  The  deputy  ought  to  be  account- 
able to  his  constituents.  The  people  are  extreme- 
ly well  qualified  tor  choosing  those  whom  they 
are  to  entrust  with  part  of  their  authority.  Thay 
are  very  capable  of  electing  a  General  and  a  Judge 
who  has  been  assidious  in  his  office,  gives  general 
satisfaction,  and  has  never  been  charged  with 
bribery."  Yes,  sir;  this  very  question  which  is 
to  come  before  us — the  popular  election  of  judges 
— even  at  this  enlightened  period,  so  startling  to 
some  gentlemen,  jbut  to  continue—  he  further 
tells  us  "  all  the  inhabitants  ought  to  have  a  right 
of  voting,  except  those  who  are  so  mean  as  to 
have  no  will  of  their  own  ;  when  the  common 
people  adopt  good  maxims,  they  adhere  to  them 


403 


steadier  than  those  we  call  gentlemen.  It  is  very 
rare  that  corruption  commences  with  the  former. 
Where  the  legislative,  executive,  and  judiciary 
powers  are  not  separated,  liberty  is  not  secure. 
A  constitution  that  has  all  the  internal  advanta- 
ges of  a  republican,  with  the  external  force  of  a 
monarchical  government :  a  confederate  republic." 
Here  sir,  we  have  all  the  elements  ot  a  popular 
and  limited  government  founded  on  unlimited 
confidence,  in  the  soutid  maxims  and  incorrupti- 
bility of  the  peop]«,  as  the  supreme  power — on 
theii  capacity  for  self-government  from  a  lown  to 
a  confederacy  — all  laid  down  in  propositions  so 
concise  and  terms  so  simple,  it  is  impossible  to 
misapprehend  them.  Was  Montesquieu  a  dem- 
agogue ?  Was  he  a  revolutionist?  No  sir,  he 
was  the  benefactor  of  his  age.  and  of  all  future 
ages — an  inspired  philosopher,  contemplating,  at 
no  distant  period,  a  confederation  ot  popular 
republics.  These  simple  and  concise  principles 
were  however,  litlle  understood  by  many  of  our 
enlightened  men,  who  had  all  the  prejudices  of  a 
British  Colonial  education,  little  confluence  in 
popular  virtue  or  intelligence,  and  who  believed 
that  property  was  the  primary  object  of  govern, 
ment.  The  proceedings  of  the  Federal  Conven- 
tion prove,  as  was  declared  by  many  of  its  mem- 
bers, that  the  science  of  government  was  in  its 
infancy.  One  distinguished  gentleman  proposed 
as  a  qualification  for  President,  that  he  should 
possess  one  hundred  thousand  dollars  in  property 
— the  supreme  judges  fifty  thousand  dollars — and 
members  of  Congress  in  proportion.  Another 
pronounced  the  trial  by  jury  an  absurdity,  and 
another,  afterwards,  a  prominent  democrat — that 
democracy  w;.s  the  worst  of  all  possible  evils. — 
Such  we  e  a  tew,  only,  of  the  extraordinary  opin- 
ions of  some  of  the  most  prominent  men  in  that 
convention.  We  have  now  been  engaged  for 
seventy  years  in  framing  our  constitutions,  state 
a"d  federal,  and  in  all  our  conventions,  the  con- 
test has  been  between  popular  rights  and  slate 
rights  on  the  one  side  and  property  and  power  on 
the  other.  Leading  men'of  both  parties  have 
been,  by  turns,  the  advocates  of  power  or  right, 
according  to  their  political  position.  The  first 
important  contest  began  in  the  federal  Conven- 
tion. What  confidence  had  some  of  its  most  en- 
lightened members  in  popular  election  or  ap- 
pointment? The  very  first  proposition  was  made 
by  Virginia — one  of  its  provisions  was  that  the 
House  of  Representatives  should  be  chosen  by  the 
people — the  Senate  by  the  House,  and  the  Presi- 
dent by  both  Houses — carrying  out  the  princi- 
ple of  Mr  Madison,  who,  to  use  his  own  language, 
as  recorded  by  himself,  was  for  "refining  pop- 
ular appointments  by  successive  filtrations." — 
Hs  considered  the  pure  fountain  of  all  power — 
as  turbid — so  much  so,  as  to  require  successive 
filtrations  through  that  purest  of  refiners,  dele- 
gated power.  But  the  people  were  not  without 
their  advocates  in  that  Convention — there  was  a 
Franklin  to  defend  "  the  virtue  and  intelligence 
of  the  common  people" — and  a  Wilson  to  pro- 
claim them  "  the  legitimate  source  of  all  autho- 
rity," and  that  "  the  difference  between  a  medi- 
ate and  an  immediate  election  was  immense." 
Again,  sir,  what  were  the  opinions  then  about 
State  rights  ?  Hamilton  thought  that  "  as  States 
they  ought  to  be  abolished" — the  bolder  Gouver- 


neur  Morris  exclaims  "  What  if  all  the  charters 
and  constitutions  of  the  States  were  thrown  into 
the  fire  and  all  their  demagogues  into  the  Ocean  ?" 
And  the  more  prudent  and  cautious  Madison  says 
"  supposing  a  tendency  in  the  general  govern- 
ment to  absorb  the  State  governments,  no  fatal 
consequence  could  result."  Not  a  vestige  of  State 
power  would  have  been  left  had  it  depended  on 
those  gentlemen.  But,  sir,  there  was  a  mighty 
struggle  there  between  the  large  States  and  the 
small — between  power  and  right — and  our  con- 
federacy was  saved  by  such  old  federalists  as  Ol- 
iver Ellsworth  and  Roger  Sherman — by  your 
Johnsons  and  Pattersons  of  the  small  States — who 
were  responded  to  by  other  distinguished  fede- 
ralists in  the  Conventions  held  to  ratify  the  Con- 
stitution— by  Patrick  Henry  of  Virginia  who 
dreaded  "  the  ropes  and  chains  of  consolidation" 
— and  in  whose  view  the  States  were  "  the  soul 
of  the  confederation" — by  Fisher  Ames  in  the 
east,  who  told  us  that  "  too  much  provision  could 
not  be  made  against  consolidation.  The  State  go- 
vernments represent  the  feelings,  wishes  and  in- 
terests of  the  people.  They  are  the  safeguard 
and  ornament  of  the  Constitution.  They  will 
protract  the  period  of  our  liberties — they  will  af- 
ford a  shelter  against  the  abuse  of  power  and  will 
be  the  natural  avengers  of  our  violated  rights.'* 
Such  were  the  doctrines  of  federalism  in  1787 
and  1788 — had  they  and  their  successors  ad- 
hered to  these  principies — the  principles  of 
Jefferson — how  many  abuses  of  power  and  fed- 
eral usurpations  would  have  been  avoided. — 
Our  State  Constitutions  even  at  this  day  prove 
that  the  science  ol  Government  is  in  its  inlancy. 
VV  hat  is  the  history  of  our  conventions  but  a  series 
of  struggles  to  strip  property  and  power  of  their 
usurpations  and  to  vindicate  popular  rights  ?  And 
what  progress  has  been  made  I  Take  the  two  old- 
est governments  on  this  continent — Massachu- 
setts and  Virginia.  Massachusetts  was  originally 
a  slrictdemooracy — all  the  male  inhabitants  voted 
— then  it  became  a  representative  government — 
then  none  but  a  member  of  a  church  could  vote, 
and  it  became  a  Hierarchy.  Subsequently  a  union 
was  formed  between  property  and  religion,  which 
governed  that  commonwealth  for  generations. — 
VVhy  sir,  so  late  as  1321,  when  their  last  Conven- 
tion was  held — all  the  ability  and  all  the  eloquence 
of  that  Convention  led  on  by  their  most  distin- 
guished orator,  were  employed  to  carry  through  a 
proposition  to  make  wealth  the  basis  of  power  in 
the  Senate — assessment  of  property  was  to  be  the 
ratio  of  representation  in  that  body — in  other  words 
the  agricultural  counties  were  to  be  controlled  by 
the  wealth  of  the  cities — especially  Boston.  This 
abominable  proposition  was  carried  in  that  en- 
lightened Convention;  but  the  yeomanry  of  that 
old  commonwealth  proved  that  they  understood 
the  principles  of  popular  government,  better  than 
their  wise  and  able  representatives,  by  defeating 
it  by  an  overwhelming  majority.  And  in  Virginia 
what  have  we  seen  ?  A  long  and  never  ending 
struggle  between  property  and  right — between  the 
freeholder  and  the  freeman.  At  the  origin  of  that 
government  and  lor  half  a  century  all  the  freemen 
were  generally  entitled  to  vote— until  1677— when 
Charles  the  II.  having  quarreled  with  the  govern- 
ment, sent  an  order  to  his  Governor  backed  by 
two  regiments,  directing  that  none  but  freeholders 


404 


should  vote,  and  that  the  Assembly  should  only 
meet  biennally-    Notwithstanding  the  disgraceful 
origin  of  this  freehold  qualification,  it  continued 
for  more  than  a  century  and  a  half.     In  the  Con- 
vention of  1829-30,  all  the  eloquence  and  ability 
of  the  Old  Dominion  were  exhausted  to  perpetu. 
ate  the  decree  ot  Charles  the  lid.     And  even  now 
sir,  to  vote  in  Virginia  the  man  must  belong  to  the 
House  or  the  land,  and  the  provision  relating  to 
the  right  of  suffrage  is  almost  as  long  as  a  bill  in 
chancery — this  too  in  the  oldest  government   in 
the  Western  Hemisphere.    We  can   have  no  bet- 
ter evidence  that  the  science  of  government  is  in 
its  infancy,   when  we  find,  that  in  the  oldest   of 
our  governments  the  Executive  and  the  Judiciary 
are   both  the  offsprings  of  the  Legislature — still 
perpetuating  Mr.  Madison's  principle  of  "  refin- 
ing  popular    appointments  by  successive  fillra- 
tions" — and  violating  that  fundamental  principle 
of  Irea  government,  the  mutual   independence  of 
the  Legislative,  Executive  and  Judicial  powers. — 
And  what  progress  has  the  science  of  government 
made  in  our  own  State  ?     We  have  had  for  seven- 
ty years  annual  sessions  of  the  Legislature,  and  we 
have  had  three  Conventions — and  what  is  the  re- 
sult ?     We  find  ourselves,   as   we  began,  with  a 
constitution  giving  the  supreme  legislative  power 
of  the  State  to   the  Legislature — unrestricted  and 
unlimited.     And  sir,    for  seventy  years   no  effort 
has  been  made  to  specify  the  powers  which  should 
be  delegated,  and  no  provision  that  all  powers  not 
delegated  are  reserved   to  the  people.     No.     On 
the  contrary  the    whole  power  of  the   State  is  in 
the  hands  of  the  Legislature — a  power  which  no 
monarch  in  any  well   regulated  monarchy  in  Eu- 
rope  possesses,  has  been  by  a  single  clause  in  our 
constitution  conferred    on   our  Legislature.     And 
what  has  baen  the  consequence?     What  has  ever 
attended     absolute   power — a    legislative    despo- 
tism ?      Instead    of    having  a   limited    constitu- 
tion prescribing  the  f--w  general  and  high  duties 
belonging    to    the    State    as    we     now    propose 
to  do,  we   left    the    Legislature  with   unlimited 
power — they  have  undertaken  not    only  to   reg- 
ulate  the    general    concerns    ot    the    State    but 
they   have  descended   to  the   affairs  of    counties 
and  towns,  nay  even  to  regulating  the  private  bu- 
siness of  men.     Not  a  creek  can  be  bridged  with- 
out the  special  permission  of  the  legislature,  and 
we  have  had  statute  upon  statute,  privilege  on 
privilege,  incorporation  on  incorporation  and  mo- 
nopoly on  monopoly.     Why,  sir,  in  earlier  times 
the  driving  of  a  stage  from  Utica  to  Canandaigua 
was  a  monopoly !     Such  were  the  results  of  un- 
limited power.     Had  we  started  with  a  Consti- 
tution framed  upon  the  principles  of  government 
advocated  by  Jefferson  and  by  every  profound  po- 
litical philosopher  of  France  and  England  in  the 
last   century — had  the  state  legislature  been  re- 
stricted to   a  few  high  and   general  powers  pro- 
perly belonging  to  the  State,  leaving  the  local  af- 
fairs of  counties  and  towns  to  their  own  regula- 
tion,  and   men  to  the  management  of  all  their 
private  affairs,  unaided   and  unrestricted  by  the 
legislature — had  our  government  been  founded  on 
this  simple,wise  and  just  plan,  how  different  would 
have  been  the  result  at  this  day.     Again,  sir,  had 
all  appointments  been  given  to  the  people  from 
the  beginning  as  they  should  have  been — had  all 
these  reforms  been  provided  for — what  scene? 


would  have  been  avoided  ?  This  lobby  would  not 
lave  been  annually  crowded  for  seventy  years 
with  the  agents  of  wealth — this  capital  would  not 
[live  been  visited  annually  by  hosts  of  office-hold- 
ers and  office-seekers — your  legislation  would 
not  have  been  corrupted  noryour  government  dis- 
jraced.  I  did  not  rise,  however,  to  go  into  this 
;reat  constitutional  question,  but  to  vindicate  the 
cause  of  reform  and  to  show  that  the  science  of 
overnment  was  still  in  its 'infancy. 
Mr.  NICHOLAS  said  he  wished  to  continue  the 
Senate  pretty  much  on  its  present  footing.  He 
had  heard  no  good  reason  assigned  for  shortening 
the  term  as  has  been  here  proposed.  It  is  a  new 
question,  one  which  so  far  as  he  knew  had  not 
3een  thought  of  by  the  people.  The  senate  has 
always  been  made  a.  more  permanent  body  than 
the  Assembly  for  various  reasons,  to  guard  legis- 
lation against  the  effects  of  high  temporary  excite- 
ments, and  the  influence  of  faction  ;  to  secure  at 
all  times  in  one  branch,  a  class  of  experienced 
representatives  ;  also  that  they  may  have  greater 
freedom  of  action  as  the  representatives  of  the 
whole  State,  and  and  not  merely  of  their  own  im- 
mediate district  or  county.  These  are  objects 
virtually  important  to  the  well  being  of  the  State,, 
and  if  they  have  not  been  always  properly  attain- 
ed, the  defect  has  been  in  improper  selections  of 
men  sometimes  made  by  the  people  to  represent 
them  in  the  Senate,  and  not  in  the  system  itself. 
He  believed  this  had  been  the  case  more  or  less 
and  from  a  cause  to  which  he  will  presently  allude. 
Mr.  N.  said  he  must  differ  with  those  gentlemen 
who  had  expressed  the  opinion  that  practically 
the  Assembly  was  a  mote  conservative  body  than 
the  Senate.  Upon  a  retrospect  they  will  find  that 
more  rash  and  improvident  legislation  has  been 
checked  in  the  latter  than  the  former  branch;  and 
if  we  are  to  suppose  them  equally  honest,  how  can 
it  be  otherwise  ?  A  member  of  the  Assembly,  al- 
though in  fact  representing  the  State,  and  in  an 
emergency  might  be  true  to  her  interests,  still,  as 
the  immediate  representative  of  his  own  county, 
he  feels  it  incumbent  on  him  to  allow  no  object 
to  conflict  with  the  interest  of  his  county.  He 
may  unconsciously  take  an  improper  course  on  a 
question  of  general  interest  to  the  State,  from  a 
fear  of  arraying  an  opposition  to  some  question  af- 
fecting, perhaps,  the  division  of  a  county  or  the 
erection  of  a  bridge.  A  devotion  to  the  interests 
of  nis  immediate  representatives  is  highly  com- 
mendable when  kept  within  proper  limits,  but  the 
State  may  always  sufftt  from  its  excess.  Senators 
who  are  faithful  men  during  their  longer  term  do 
not  lose  their  local  attachment ;  they  continue 
their  supervision  of  the  interests  o!  their  immedi. 
ate  constituents,  and  at  the  same  time  their  views 
become  generalized  or  enlarged  j  they  look  more  to 
the  interests  of  the  State  at  large.  Gentlemen 
think  that  the  duties  of  the  Senate  v\  hen  its  judi- 
cial duties  cease,  will  be  of  less  importance  than 
formerly  j  there  certainly  can  be  no  duty  more  im- 
portant than  to  conduct  the  legislation  ot  a  great 
State,  having  a  rapidly  increasing  population  of 
three  millions  with  all  its  diversified  interests. — 
When  the  present  court  of  errors  no  longer  exists, 
the  Senate  will  be  in  a  different  position,  and  he 
(Mr.  N.)  predicted  that  there  will  be  a  larger 
and  better  range  in  which  to  select  candidates 
for  the  Senate.  Legislative  and  Judicial  duties, 


405 


together,  have  required  the  senator  who  has  ai 
tended  to  them  to  be  absent  from  horr.e  at  least  nine 
months  in  the  year.  A  few  competent  men  en 
gasc^d  in  business  may  make  the  necessary  sac 
nfice  to  serve  one  term,  hut  the  most  capable  pro 
fessional  and  business  men  generally  do  not  fee 
able  to  abandon  their  own  pursuits  to  fill  a  sta 
ti<>n  which  will  occupy  them  three-fourths  o 
the  year.  The  consequence  has  been  that  in  too 
many  cases  men  become  candidates  for  the  Sen 
ate  because  they  have  but  little  business  to  de 
tain  them  at  home ;  and,  generally  speaking,  mei 
who  are  without  employment  at  home,  should  not 
be  the  men  to  have  in  charge  the  business  of  the 
public.  Hereafter,  the  occupation  of  a  Sena- 
tor will  be  reversed ;  he  may  in  future  attend  to 
his  own  business  three-quarters  of  the  year,  anc 
be  absent  only  three  months.  This  change  will 
induce  a  greater  number  of  competent  men  to 
consent  to  assume  the  responsible  duties  of  a 
Senator,  when  it  can  be  done  with  so  much  less 
inconvenience  and  sacrifice  than  formerly.  Mr. 
N.  alluded  to  this  change  to  show  not  only  that 
from  a  discontinuance  of  the  judicial  functions  ol 
the  Senate,  no  gentleman  here  should  deprecate 
the  importance  of  the  Senate,  but  that  this  change 
affords  a  strong  additional  inducement  to  continue 
the  Senate  on  its  present  stable  basis.  He,  Mr. 
N.,  preferred  to  make  no  change  in  its  term  of 
office,  but  if  it  should  be  decided  not  to  continue 
it  at  four  years,  he  should  vote  for  the  term  near- 
est to  it.  Mr.  N.  said  the  second  question  in  this 
resolution  he  would  now  refer  to,  as  it  was  con- 
nected with  the  first,  that  is,  the  division  of  the 
State  into  Senatorial  districts.  He  thought  the 
single  district  system  should  be  adopted  as  in  all 
respects  preferable  to  our  present  system.  In 
single  districts  the  people  have  a  better  opportu- 
nity to  know  candidates  for  the  Senate,  and  there 
is  less  opportunity  for  intrigue  in  a  small  than  a 
large  district.  And  the  Senator,  when  knowing 
his  constituents,  may  with  greater  facility  com- 
municate with  them  on  subjects  of  business. 

There  is  one  other  question  connected  with  this 
subject  which  has  been  discussed,  and  will  be 
agam  considered,  and  that  is  an  increase  of  the 
number  of  Senators.  He,  Mr.  N.,  had  as  yet  ad- 
hered to  the  present  number.  There  were  circum- 
stances, however,  connected  with  the  arrange- 
ment of  the  districts,  and  the  considerations  re- 
ferring to  the  relative  position  of  the  cities  and 
the  rural  sections  of  the  State,  which  mi°-ht  yet 
induce  him  to  vote  for  a  small  addition  to  the  pre- 
sent number  of  Senators. 

Mr.  PERKINS  advocated  a  term  of  3  years  for 
the  term  of  Senators — as  being  a  period  which 
would  ensure  stability  to  our  legislation,  and  yet 
bring  the  Senators  so  within  the  reach  of  the  peo- 
)le,  as  to  be  amenable  to  them  ;  and  at  the  same 
time  render  them  sufficiently  permanent  to  with- 
stand any  local  temporary  excitement  that  might 
arise  in  the  public  mind.  The  term  of  one  or 
two  years  would  not  attain  this  end.  There  were 
also  conviencies  of  election  which  would  be  at- 
tained. I  he  Senate  should  be  elected  for  a  differ- 
nt  period  of  time  from  either  of  the  other  bodies 
The  expression  of  the  public  mind  in  favor  of 
shortening  the  term  of  office  of  Senators  was  very 
feeble.  The  public  mind  in  calling  this  Con- 
vention was  mainly  occupied  with  the  consid- 


eration of  some  three  or  four  prominent  evils. 
He  was  not  afraid  of  reform  in  government, 
but  he  thought  the  proceeding  should  be  cautious, 
and  careful.  He  was  not  aware  that  there  had 
been  a  general  call  for  single  districts,  although 
there  had  been  that  the  present  districts  were  in- 
convenient. The  report  had  been  made  in  favor  of 
electing  the  State  officers  for  two  years,  the  gov- 
ernor was  to  be  elected  for  the  same  term,  and 
now  to  make  the  Senate  election  at  the  same  term, 
would  be  to  make  a  clear  sweep  in  the  g9vern- 
ment  every  two  years.  And  if  that  was  so,  very 
little  attention  would  be  paid  to  the  intervening 
elections — for  the  people  would  not  come  out, 
perceiving  at  once  that  they  could  do  nothing  then 
to  change  the  policy  of  the  State  government.  But 
if  there  should  be  a  division  of  these  elections, 
there  would  be  a  general  expression  of  voters 
at  other  elections  besides  that  of  the  election 
when  the  Governor  was  elected.  If  not,  this 
could  not  be  attained.'  In  electing  the  Sena- 
tors for  two  years,  it  would  destroy  the  stability 
and  permanency  of  the  body,  and  destroy  also,  its 
features  as  the  representative  of  a  fair  expression 
of  the  popular  will.  The  biennial  election,  too, 
he  urged  would  destroy  the  great  berefits  of  the 
Senate  as  a  check  upon  the  popular  body.  It 
would  prevent  also  its  members  from  attaining 
that  experience  in  legislation  which  it  was  desir- 
able that  they  should  have.  As  to  annual  elec- 
tions, that  was  subversive  of  all  the  theory  upon 
which  the  institution  of  a  Senate  has  been  based. 
These,  Mr.  P.  said  were  his  views  of  the  practical 
wordings  of  the  various  systems  that  had  been 
proposed.  Mr.  P.  urged  that  a  Senator  should 
represent  a  different  and  a  more  extended  local- 
ty,  as  tending  to  make  their  views  in  regard  to 
measures  of  political  economy  more  general,  and 
more  divested  of  peculiarly  local  and  sectional 
feeling.  If  the  Senators  were  to  elected  for  three 
years,  of  course  it  would  be  necessary  to  increase 
the  number  from  32  to  some  that  would  di- 
vide by  three.  Whether  that  was  39  or  42  he 
cared  very  little. 

Mr.  STRONG  wished  to  say  a  few.  words  to 
save  time.  Were  gentlemen  aware  that  a  record 
was  kept  of  the  number  of  speeches  made  ?  One 
gentleman  had  made  eleven  speeches  in  one  day 
on  the  same  subject,  and  what  a  picture  would  that 
present  if  published.  He  did  not  believe  that  all 
:he  talk  that  could  be  had  would  change  a  single 
vote.  Men's  minds  were  were  already  made  up. 
Was  the  object  of  doing  this  to  prevent  the  Conven- 
tion from  doing  any  thing  and  to  defeat  the  pur- 
pose for  which  it  was  called  ?  If  it  was,  then 
t  was  time  that  it  should  be  checked.  With  a 
view  of  testing  the  sense  of  the  Convention  as  to 
hat,  he  moved  the  previous  question. 

Mr.  LOOMIS  withdrew  his  amendment. 

Mr.  R.  CAMPBELL,  jr.  urged  that  the  motion 
should  be  withdrawn,  inasmuch  as  the  chairman 
f  the  committee,  who  reported  this  proposition 
tfas  absent  through  illness.  It  was  but  due  to 
iim  that  he  should  have  an  opportunity  of  being 
present. 

Mr.  RUSSELL  called  for  the  ayes  and  nays  on 
econding  the  call.  They  were  ordered. 

The  previous  question  was  not  seconded— ayes 
0,  nays  73. 

Mr.  RHOADES  said  that  the  Chairman  of  the 


406 


committee,  al  hough  not  well,  did  not  desire  that 
the  question  should  be  suspended  on  that  ac- 
count. 

Mr.  BRUCE  denied  there  was  truth  in  the  as- 
sertion that  the  people  had  not  called  for  the  sin- 
gle district  system.  In  his  county  the  former 
political  parties,  each  passed  resolutions  in  favor 
of  this  proposition.  He  should,  therefore  mis- 
represent them  did  he  not  go  for  it.  He  urged 
that  it  did  not  require  a  service  in  legislation  to 
make  a  man  competent  to  the  discharge  of  the  du- 
ties of  Senator.  The  history  of  the  Senate,  shows 
that  never  in  the  history  of  this  state,  had  such 
scenes  transpired  in  a  legislative  body  as  were 
witnessed  there,  and  this  was  from  men  old  in 
legislative  experience.  The  objection  of  the  gen- 
tleman from  St.  Lawrence,  to  limit  the  time  to 
two  years,  as  to  inconvenience  in  election,  could 
be  easily  obviated.  It  would  tend  also  to  render 
that  body  more  pure.  Experience  taught  us  that 
long  continuance  in  office  rendered  men  as  well 
as  parties,  liable  to  corruption.  He  was  distinct- 
ly opposed  to  electing  Senators  for  more  than  two 
years.  It  would  be  placing  them  in  the  same  po- 
sition as  was  Congress,  and  it  was  quite  as  im- 
portant to  have  honesty  in  the  Senate  as  in  Con- 
gress. Mr.  B.  further  sustained  the  single  dis- 
trict. 

Mr.  BASCOM  said  that  some  time  ago  he  im- 
posed a  restriction  upon  himself  that  would  for- 
bid him  to  occupy  the  time  of  the  Convention 
until  another  committee  should  have  reported ; 
but  when  he  heard  the  gentleman  from  Dutchess 
congratulate  the  Convention  and  the  country, 
that  two  months  of  the  Convention  had  been  ex- 
pended without  harm,  because  nothing  had  been 
done,  and  when  the  same  gentleman  had  as- 
sured us  that  we  were  now  upon  the  brink  of  a 
precipice,  he  thought  a  little  consideration  might 
be  indulged  and  perhaps  a  little  attention  paid 
to  personal  security  before  we  take  the  plunge. 
He  thanked  the  gentleman  for  the  congratulations 
m  which  he  had  indulged,  because  he  hoped  that 
when  it  came  to  be  understood  that  there  were 
strong  and  influential  men  in  this  body,  whose  re- 
verence for  the  past  prevented  them  from  desir- 
ing changes  and  reforms,  the  responsibility  of  the 
delay  would  not  all  rest  upon  the  few  men  that 
had  consumed  some  portion  of  its  time  in  endea- 
vors to  bring  its  consideration  to  the  reforms  that 
the  public  voice,  the  public  interests, and  he  would 
add  the  public  security  demand.  He  had  borne  a 
humble  but  somewhat  active  part  in  the  agitation 
that  had  prepared  the  public  mind  for  constitution- 
al changes  through  the  agency  of  a  convention, 
and  he  felt  no  little  regret  that  the  time  had  come 
when  the  opponents  of  reform,  could  with  some 
propriety,  congratulate  themselves,  that  so  little 
had  been  done,  and  more  than  intimate  the  hope 
that  little  or  nothing  was  to  be  accomplished  here- 
aiter.  There  v\  ere  many  he  hoped,  there  was  one  ne 
knew,  that  bad  come  here  wiih  the  honest  inten- 
tion of  proposing  such  radical  and  effectual  altera. 
tions  as  ttie  public  interests  and  the  cause  of  pop- 
ular ngiils  and  safety  required,  who  were  not  to 
be  detetred  by  the  epithets  not  now  for  the  first 
tune  used,  upon  thisfloor,  of  Democrat  or  Jacobin. 
One  of  those  epithets  had  ceased  to  be  opprobri- 
ous, and  he  had  not  such  acquaintance  with  the 
gentleman's  early  political  history  as  to  know 


whether  he  had  learned  iis  use  before  it  ceased  10 
be  so  er  since.  But  not  only  had  the  word  Jaco. 
bin  been  used,  but  the  French  Revolution,  with 
its  Jacobin  assembly,  and  its  bloody  Guillotine, 
had  been  brought  up  for  our  review  to  deter  us 
from  the  adoption  of  such  propositions  as  our 
judgments  might  otherwise  approve.  It  is  but  a 
few  days  ago  that  the  sepulchre  ot  Tom  Paine  was 
invaded  and  his  bones  rattled  about  our  ears  by 
the  charm  of  the  same  gent  leman's  eloquence,  and 
now  when  suchlike  arguments  were  again  pre- 
sented, might  he  not  ask  gentlemen  for  a  moment 
to  consider,  that  the  French  Revolution  itself, 
with  all  its  wild  anarchy  and  blood,  was  but  a 
result,  of  causes,  and  that  wise  governmental  re. 
forms  and  prudent  changes  would  have  pre- 
vented the  world  from  witnessing  that  terri. 
ble  catastrophe,  and  that  awful  as  was  the 
sacrifice  of  human  life,  that  conservatism  slaugh- 
tered more  men  at  St.  Bartholomew  in  a 
single  day,  than  fell  under  the  axe  of  the 
Guillotine  during  the  whole  revolutionary  period. 
It  had  been  his  fortune  to  commence  the  con- 
sideration of  political  subjects  at  about  the  peri- 
od when  the  people's  party,  with  the  gentleman 
from  Dutchess  for  its  champion,  avenged  as  far 
as  in  their  power  the  wrong  to  popular  rights, 
that  had  been  committed  by  seventeen  men  in  the 
Senate  Chamber,  in  withholding  the  Electoral 
ballot  box ;  when  the  gentleman's  eloquent  ap- 
peals in  behalf  of  popular  rights  and  his  vindica- 
tion of  popular  intelligence  constituted  the  reci- 
tations for  the  school  boy's  oratory,  and  some 
opinions  and  feelings  thus  early  formed  had  clung 
to  him  still  and  had  been  strengthened  by  expe- 
rience. And  he  would  here  say  in  answer  to  the 
repeated  declarations  we  had  heard  upon  this  floor 
to  the  contrary,  that  from  that  period  to  this,  no 
part  of  the  government  had  been  watched  with 
more  jealousy,  none  more  frequently  the  subject 
of  complaint,  and  none  the  subject  ot  more  pro- 
posed reforms  than  the  Senate  itself.  It  was  not 
long  ago  that  the  State  was  unrepresented  in  the 
Senate  of  the  Union,  because  a  bare  majority  of 
this  small  body  willed  it  to  be  so.  If  gentlemen 
do  not  remember  the  popular  indignation  of  1824, 
have  they  forgotten  the  popular  condemnation 
that  followed  this  act  of  Senatorial  power?  Why 
this  branch  of  the  legislature  is  practically  of 
such  a  character  so  that  it  is  common  in  contra- 
distinction to  call  the  Assembly  the  popular 
branch.  The  gentleman  from  Ontario  (Mr.  NI- 
CHOLAS) called  it  so  to-day.  Is  it  not  time  that 
both  branches  of  your  legislature  should  be  pop- 
ular departments  ?  The  time  was  when  the  Sen- 
ate was  so  constituted  as  that  it  was  not  proper  to 
call  it  a  popular  branch.  Before  1821,  the  mem- 
bers were  elected  by  property  holders,  and  of  the 
Assembly  by  a  more  numerous  class  of  voters;  but 
the  Constitution  of  1821  abolished  that  distinction, 
and  the  Senate  would  then  have  been  popularized 
by  increasing  its  numbers,  reducing  the  term,  and 
increasing  the  numberof  districts,  but  for  the  sup- 
posed necessity  of  continuing  its  judicial  powers. 
What  intrinsic  necessity,  or  what  propriety  was 
there  now,  when  its  judicial  powers  were  to  be 
taken  away,  when  its  members  are  to  be  elected 
by  the  same  class  of  voters  as  the  members  of  the 
other  House,  for  giving  its  members  a  longer  term 
than  those  of  the  other  branch  ?  Why  not  elect 


407 


Senators  annually,  and  in  districts  as  numerous 
as  the  members  themselves  ?  He  apprehended 
gentlemen  would  find  it  difficult  to  answer  these 
questions.  Some,  if  not  all  of  the  New  England 
States,  elected  the  members  of  both  branches  for 
the  same  term,  and  in  many  other  States  the  same 
rule  prevailed.  It  had  been  objected  to  short 
terms,  that  experience  was  necessary  for  a  proper 
discharge  of  the  duties  of  this  office.  The  gen- 
tleman from  Madison  (Mr.  BRUCE)  had  met  this 
argument  and  showed  that  great  experience  had 
not  always  been  conducive  to  the  good  order  or 
integrity" of  the  body.  But  suppose  experience 
is  as  important  as  is  supposed,  will  not  popular 
sagacity  appreciate  its  importance  and  secure  it 
by  the  re-election  of  such  as  are  faithful  to  the 
public  interest  ?  In  Vermont,  the  Judges  of  the 
Supreme  Court  are  elected  annually  by  the  Le- 
gislature. Experience  in  judicial  duty  was  re- 
garded an  important  qualification,  and  the  practice 
was  uniform  to  re-elect  every  year  all  the  judges 
who  had  discharged  their  duties  with  ability.  If 
experience  was  necessary,the  people  would  find  it 
out,  and  the  single  district  system  would  enable 
them  to  avail  themselves  of  it.  Now,  when  from 
seven  to  ten  or  twelve  counties  were  embraced  in  a 
district,  county  rights  required  a  rotation  and 
generally  prevented  che  re-election  of  a  Senator. 
But  there  are  other  reasons  for  single  districts 
and  short  terms.  In  small  counties  or  districts, 
the  people  could  assemble  in  mass  at  the  centre, 
or  in  different  parts  of  the  district,  and  them- 
selves indicate  who  should  be  their  candidate.— 
They  sometimes  had  done  so.  But  when  the  dis- 
trict was  large  the  intervention  of  delegates  be- 
came necessary,  and  the  people  were  left  the  glo- 
rious piivilege  of  deciding  which  set  of  candidates 
are  the  least  objectionable,  upon  the  evidence 
furnished  by  partizans,  who  have  generally  a  per- 
sonal interest  in  the  matter.  If  Senators  are  elect- 
ed for  a  longer  term  than  one  year,  there  is  op- 
portunity that  has  been  and  will  be  improved,  of 
influential  persons  having  large  interests  involved 
in  legislative  questions,  of  approaching  and  influ- 
encing the  fixed  part  of  this  body  to  a  favorable 
consideration  of  their  interests.  These  were 
some  of  the  considerations  that  inclined  him  to 
the  support  of  the  proposition  of  the  gentleman 
from  Chautauque,  for  a  term  of  one  year.  Was 
there  any  thing  more  important  than  to  secure 
the  purity  of  the  legislative  department  ?  And 
could  there  be  any  better  security  than  to  bring 
it  under  the  control  of  the  popular  will,  and  make 
it  as  responsible  as  possible  to  the  popular  will. 
There  was  an  important  question,  to  a  meat  ex- 
tent, in  our  hands;  an  important  problem  that 
had  in  other  times,  and  in  other  countries,  been 
answered  differently  1'iotn  what  the  friends  of  free 
institutions  desired.  That  problem  was  «•  whe- 
ther man  was,  capable  of  sfilf-governmeni  ?"  He 
expressed  no  opinion  upon  the  abstract  question 
itself,  but  he  telt  bound,  here  and  elsewhere,  to 
do  all  in  his  power  to  prove  by  the  success  of  the 
experiment  we  are  trying,  that  the  faci  is  as  the 
friends  of  popular  institutions  hope.  And  his 
mode  was  to  eradicate,  uproot,  leform,  or  destroy, 
what  was  vicious  and  bad,  and  cherish  and  pre- 
serve all  that  was  good.  For  good  government, 
as  well  as  good  husbandry,  the  ures  must  be  de. 
stroyed,  that  the  wheat  may  grow.  For  when  a 


people  can  nor,  or  will  not,  or  dare  not,  make  the 
necessary  changes  or  reform*  to  correct  the  abuses 
that  experience  has  shown  to  result  from  their 
system  of  government,  or  the  manner  of  its  ad- 
ministration, the  end  of  their  freedom  draws  nigh. 

Mr.  NICOLL  briefly  urged  that  thequestion  as 
to  the  number  of  Senators  should  be  first  passed 
upon  before  the  length  of  term  was  decided  upon. 
To  get  at  that  question  he  would  move  to  lay  the 
resolution  on  the  table.  Mr.  N.  waived  the 
motion  however  at  the  request  of 

Mr.  MARVIN  who  desired  to  submit  the  fol- 
lowing compromise,  of  the  various  views  of  mem- 
bers. 

The  Senate  shall  consist  of  42  members,  and  the  Sena- 
tors  shall  be  chosen  for  3  years.  The  Assembly  shall  con- 
sist of  1-26,  who  shall  be  annually  elected.  The  State  shall 
be  divided  into  126  districts,  to  be  called  Assembly  Dis- 
tiicts,  each  of  which  shall  choose  one  Member  of  Assem- 
bly. Each  Assembly  District  shall  contain  as  nearly  as 
maybe  an  equal  number  of  inhabitants,  excluding  aliens, 
and  shall  consist  of  contiguous  territory  in  as  compact  and 
regular  a  form  as  may  be,  and  no  town  or  ward  shall  be 
divided  in  the  formation  of  an  Assembly  District  except 
such  town  or  ward  may  be  entitled  to  two  or  more  mem- 
bers. 

Three  Assembly  districts,  contiguous  and  in  as  compact 
and  regular  a  form  as  may  be,  shall  compose  a  Senate  dis- 
trict, which  shall  choose  one  Senator  every  three  years. 
The  Senate  districts  shall  be  numbered  from  one  to  forty 
two  inclusive,  and  shall  be  divided  into  three  classes  to  be 
called  the  first,  second  and  third  class.  Nos.  1,  4,  7,  10,  13 
16,  19,  22,  25,  2S,  31,  34,  37  and  36,  shall  constitute  the  first 
class;  Nos.  2,  5,  8,  J 1,  14,  17,  20,  23,  26,  29,  ?2,  35,  38  and 41, 
shall  constitute  the  second  class;  and  Nos.  3,  6,  9,  12,  15 
18,  21,  24,  27,  30,  33,  36,  39  and  42,  shall  constitute  the  third 
class.  The  seats  of  the  Senators  first  elected  pursuant  to 
this  Constitution  of  the  first  class,  shall  be  vacated  at  the 
end  of  the  first  year,  and  of  the  second  class  at  the  end  of 
the  second  year,  and  the  third  class  at  the  end  of  the  third 
year,  in  order  that  14  senators  shall  be  annually  elected. 

The  Assembly  districts  shall  be  composed   as  follows: 

No.  one  shall  consist  of  the  followingtown^  in county, 

(and  so  on  throughout  the  State  )  Senate  district  No.  one* 
shall  be  composed  of  Assembly  districts  Nos.  1,2  and  3, 
(and  so  on  through  the  State,)  every  three  Assembly  dis- 
tricts making  one  Senate  district. 

Mr.  NICOLL  withdrew  his  motion. 

Mr.  TILDEN  denied  that  the  sentiment  of  the 
people  of  New  York  had  been  expressed  in  favor 
of  any  districts.  He  urged  that  the  people  should 
vote  for  Senators  throughout  the  State  at  the  same 
time,  and  expressed  himself  in  favor  of  shorten- 
ing the  term  of  office  to  three  or  even  two  years 
if  necessary. 

Mr.  TALLMADGE  briefly  explained  an  allu- 
sion to  him  by  Mr.  CAMBRELENG.  He  had  not 
said  that  the  science  of  government  was  perfect 
seventy  years  since.  He  had  also  been  misappre- 
hended in  the  supposition  that  he  had  applied 
the  term  Jacobin  to  this  house.  He  had  referred 
to  the  National  Assembly  of  France  in  illustration 
of  his  position,  and  as  referred  to,  his  remark  was 
apt  and  he  did  not  take  it  back. 

Mr.  CAMBRELENG  congratulated  the  Con- 
vention and  hirnsslf  that  he  had  misunderstood 
the  remarks  of  the  gentleman  from  Dutchess. — 
He  was  happy  to  find  that  the  gentleman  did  not 
think  our  constitutional  government  as  perfect  as 
he  (Mr.  C.)  thought  he  did.  The  gentleman  had 
said  so  much  about  the  wisdom  of  our  ancestors, 
and  appealed  to  us  so  often  to  rely  on  their  au- 
thority, that  Mr.  C.  had  supposed  that  in  his 
opinion  the  Constitution  70  years  ago,  was  the 
perfection  of  human  wisdom. 


408 


Mr.  RICHMOND  continued  the  debate  in  re- 
ply to  Mr.  TALLMADGE. 

The  Convention  then  adjourned. 

AFTERNOON  SESSION. 
TERMS  OF  SENATORS. 

The  unfinished  business  of  the  morning  was 
taken  up. 

The  question  being  upon  filling  the  blank  in 
Mr.  LOOMIS'  resolution  with  four  years  : 

The  motion  was  lost — ayes  17,  nays  76,  as  fol- 
lows : 

AYES— Messrs.  Brundage,  Cornell,  Hunt,  A.  Hunting 
ton,  E.  Huntington,  Jordan,  Kemble,  Kennedy,  Nelson, 
Nicholas,  O'Conor,  Rhoades,  Ruggles,  Shepard,  Smith, 
Stephens,  Tallmadge — 17 

NOES— Messrs.  Angel,  Ayrault,  H.  Backus,  Bascom, 
Bergen,  Bouck,  Bowdish,  Brown,  Bruce,  Bull,  Burr,  Cam- 
breleng,  D.  D.  Campbell,  R.  Campbell,  jr.,  Candee,  Chat- 
field,  Clyde,  Conely.  Crooker,  Cuddeback,  Dana,  Danforth, 
Dubois,  Flanders,  Forsyth,  Gardner,  Graham,  Harrison, 
Hart,  Hawley,  Hotchkiss,  Hunter,  Hutchmson,  Hyde, 
Jones.  Kernan,  Loomis,  McNitt,  Marvin,  Maxwell,  Morris, 
Murphy,  Nelhs,  Parish,  Patterson,  Penniman,  President, 
Richmond,  Riker,  St.  John,  Salisbury,  Shaver,  Shaw, 
Sheldon,  Simmons,  E.  Spencer,  W".  H  Spencer.  Stanton, 
Stetson,  Stow,  Strong,  lai't,  Taggart,  J.  J.  Taylor,  Town- 
send,  Tuthill,  Warren,  Waterbury,  White,  Willard,  Wood, 
Worden,  W.  B.  Wright,  Yawger,  Young,  Youngs— 76. 

The  question  was  then  taken  upon  filling  with 
three  >ears,  which  was  also  lost :  ayes  42,  nays 
60, 

AYES — Messrs.  Angel,  Bergen,  Bowdish,  Brundage, 
Bull,  D.  D.  Campbell,  Conely,  Cornell,  Dodd,  Graham, 
Greene,  Harrison,  Hoff.nan,  Hunter.  A.  Huntington,  E. 
Huntington,  Jordan,  Kemble,  Kennedy,  Keinan,  Loomis, 
Marvin,  Morris,  Murphy,  Nellis,  Nelson,  Nicholas,  Ni- 
co:l.  O'Conor,  Penniman,  Perkins,  Powers,  Rhoades,  Rug- 
glis,  Shepard,  Simmons,  Smith,  E.  Spencer.  Stephens, 
Taggart,  Tallmadge,  Young— 42. 

NAYS— Messrs.  Ayrault,  H.  Backus,  Bascom,  Bouck, 
Bi-..>wn,  Biuce,  Burr,  Cambreleng,  R.  Campbell,  jr.,  Chat- 
field,  Clyde,  Crooker,  Cuddebark,  Dana,  Danforth,  Du- 
bois, Flanders,  Forsyth,  Gardner,  Harris,  Hart,  Hawley, 
Hotchkiss,  Hunt,  Hutchh.son,  Hyde,  Jones,  Kingsley, 
Kirklaud,  McNitt,  Maxwell,  Miller,  Parish,  Patterson, 
President,  Richmond,  Riker,  St.  John,  Salisbury,  Shaver, 
Shaw,  Sheldon,  W.  H.  Spencer,  Stanton,  Stetson,  Stow, 
Strong,  Taft,  J.  J.  Taylor,  Townsen.l,  Tuthill,  Warren, 
Water  bury,  White.  Willard,  Wood,  Wordeu,  W.  B. 
Wright,  Yawger,  Youngs- 60. 

The  blank  was  then  filled  with  two  years:  ayes 
79,  nays  24. 

AYES— Messrs.  Ayrault,  H  Backus,  Bergen,  Bouck, 
Bowdish,  Brown,  Bruce,  Brundage,  Burr,  Cambreleng,  D. 
D.  Campbell,  R.  Campbell,  jr.  Candee.  Chatfield,  Clyde, 
Conely,  Cuddeback,  Dana,  Danfonh,  Dodd,  Dubois.  For- 
syth, Gardner,  Graham,  Harris,  Harrison,  Hait,  Hotchkiss, 
A.  Huntington,  Hutchinsun,  Hyde,  Jones,  Jordan,  Kemble, 
Kernan,  King.sley,  Kirkland,  Loomis,  McNitt,  Marvin, 
Maxwell,  Miller,  Morris,  Murphy,  Nt  His, Nicoll,  O'Conor, 
Parish,  Penniman,  Powers,  President,  Richmond,  Riker, 
St.  John,  Salisbury,  Shaver,  Shaw,  Sheldon,  Shepard, 
Simmons,  E.  Spencer,  W.H.  Spencer,  Stanton,  Stephens, 
Stetson,  Stow,  Strong,  Taft,  J  J  Taylor,  Tuthill,  Ward, 
Waterbury,  White,  Willard,  W.  B.  Wright,  Yawger, 
Young,  Youngs — 79. 

NOES— Messrs.  Angel,  Bascom,  Bull,  Cornell,  Crooker, 
Flanders,  Greene,  Hawley,  Horlman,  Hunt.  Hunter,  Ken- 
nedy, Nelson,  Nicholas,  Patterson,  Perkins,  Rhoades, 
Rugbies,  Smith,  Taggart,  TaLmadge,  Townsend,  War 
ren,  Wood— 24. 

Mr.  WHITE  moved  a  reconsideration  of  the 
last  vote. 

Mr.  HAWLEY  moved  a  reconsideration  of  the 
vote  rejecting  the  proposition  to  fill  with  three 
years. 


Mr.  KENNEDY  made  the  same  motion  with 
regard  to  [be  four  years'  term. 

These  motions  lie  over. 

Mr.  WHITE  now  moved  to  amend  Mr  LOOMIS' 
resolution,  so  that  committee  No.  1  be  instructed 
to  report,  that  there  shall  be  1G  districts. 

Mr  RICHMOND  moved  that  there  be  32  dis- 
tricts, or  single  districts. 

Mr.  STOW  said  he  was  reluctant  to  take  up 
the  time  of  the  Convention,  as  he  had  at  all  times 
been  reluctant  to  do,  upon  this  subject,  but  con- 
sidering the  great  importance  of  this  question, 
and  the  result  which  would  follow  the  adoption 
of  single  districts,  as  far  as  the  rights  of  his  own 
constituents  were  concerned,  he  felt  that  he 
should  not  do  justice  to  himself,  and  would  be- 
tray the  interests  of  his  own  county,  did  he  not 
earnestly  appeal  against  the  adoption  of  this  pro- 
position. He  should  endeavor  to  be  concise,  as 
he  always  had  been,  as  the  House  would  bear 
him  witness  ;  and  in  all  his  speeches,  he  had  never 
spoken  for  effect  beyond  its  walls.  The  proposi- 
tion now  before  them  was  to  advocate  single  dis- 
tricts. If  single  districts  were  agreed  upon,  and 
such  an  apportionment  and  division  as  was  re- 
ported by  the  committee  was  made,  the  counties 
which  were  to  compose  single  districts,  would 
suffer  great  injustice  unless  they  were  to  be  di- 
vided. Equality  he  was  aware,  was  not  to  be 
obtained  except  by  a  division  of  counties — slight 
inequalities  always  exist.  Mathematical  accura- 
cy cannot  be  always  obtained  in  these  divisions  ; 
and  if  the  injury  to  his  constituents  should  arise 
from  accidental  causes,  the  people  of  Erie  county 
would  not  complain  of  any  inequality  which  they 
might  be  made  to  suffer  by  reason  of  incidental  or 
accidental  circumstances.  They  would  not  com- 
plain at  the  adoption  of  any  general  rule  which 
did  them  injustice,  if  it  worked  well  for  the  State 
at  large.  But  by  the  adoption  of  this  rule,  it 
would  be  found  necessary  to  divide  county  lines, 
in  order  to  approach  equality,  or  else  if  they  do 
not,  and  stick  to  single  districts  gross  injustice 
must  be  done.  He  would  show  why  Erie  county 
would  suffer  from  being  placed  fin  a  single  dis- 
trict. She  had  now  as  represented  in  the  census, 
a  deficit,  under  the  ratio,  of  6,314 ;  this  is  alleged  ; 
aut  in  fact  there  is  no  doubt  that  this  day  she  has 
tiad  an  actual  excess.  Now,  while  the  counties 
which  were  united  in  forming  a  district,  under 
this  report,  were  entitled  to  all  the  increase 
which  they  could  show  in  the  years  between  one 
apportionment  and  another  which  is  to  be  regu- 
lated from  time  to  time  by  the  Legislature,  the 
single  districts  were  not  supposed  to  increase  a 
single  human  being,  until  their  increase  should 
entitle  them  to  an  additional  number.  That  is, 
Erie  county,  as  a  single  district,  will  never  be 
deemed  to  have  increased  one  until  they  double 
their  present  population.  He  would  appeal  to 
:he  common  sense  of  justice  on  the  part  of  this 
Convention,  against  the  adoption  of  a  system 
which  would  apply  so  unjustly  to  his  constituents, 
and  to  every  county  which  would  compose  a  sin- 
le  district.  No  county  which  shall  not  have  in- 
creased to  double  their  present  population,  would 
3e  entitled  to  have  the  benefit  of  a  single  soul's 
additional  population.  But  where  two  or  more 
counties  are  joined  together  their  increase  is  to 
be  taken  regularly  into  the  account.  He  would 


409 


not  object  to  any  accidental  injustice  which  Erie 
county  might  be  subjected  to  in  the  arrangement 
of  districts,  but  he  did  protest  that  single  coun- 
ties should  be  allowed  the  same  rights  that  they 
in  common   with   others,  were   now   entitled  to. 
Would  the  other  plan  be  just  ?    Is  it  to  be  tolerat- 
They  should  have  no  allowance  till  they  had 
carried   it  on  the  hard   terms  of  doubling  their 
population.     He  asked  gentlemen  to  go  with  him 
for  double  districts,  so  that  we  should   not  have 
an  entire  change  in  the  Senate  in  a  single  year, 
or  otherwise  divide  counties.     He  asked  them  to 
come  up  like  men,  and  go  for  double  districts,  or 
else  divide  counties.     He  would  endeavor   here- 
after, and  he  believed,  he   could    satisfactorily 
show  that  it  would  be  better  for  the  whole  State 
to  have  double  districts,  than  to  adopt  this  sys- 
tem ;  and  he  certainly  desired  to  avoid  this  injus- 
tice to  the  county  which   he  represented,  and  it 
wad  possible  he  would  do  so,  in  this  very  article. 
Mr.  SHEPARD  was  opposed  to  single  Senate 
districts.     He  could  not,  of  course,   forsee  their 
effects  upon  those  parts  of  the  State  with  which 
he  was  not  familiar.     He  had  heard  arguments  of 
great  weight   and  consideration   from  gentlemen 
who  advocated  the  measure,   but  his  judgment 
was  quite  clear,   that  an   election  in  the  manner 
proposed  by   the   committee  would  be  liable   to 
two  substantial  objections;  it  would  fail  to  repre- 
sent as  fully  as  was  desirable  the  interests  of  the 
people,  and  it  would  be  liable  to  the  m®st  exten- 
sive abuses.     He  (Mr.  S.)  desired   to  speak  only 
of  its  effect  upon  the  city  of  New-York,  and  he 
did  not  wish   to  be   otherwise   understood.     He 
could  not  !•«  brought  to  favor  any  system  of  Sena- 
torial representation  which  precluded  the  whole 
body  of  electors  from  voting  at  every  election.  The 
yearly  infusion  of  representatives  from   the  peo- 
ple into  the  Senate  was  one   of  the  soundest  and 
most  democratic  features  of  our  government — a 
feature   the   destruction   of  which,   he  was  per- 
suaded, would  do  great  injury ;  but  he  was  satis- 
fied that  an  injury  of  far  greater  magnitude  would 
be  achieved  in  a  yearly   election   of  Senators  by 
one  half  of  the  people,  in  alternate  districts.     He 
thought  it  was   necessary   to  a  true  balance  and 
adjustment  of  the  popular  interests  that  the  Se- 
nate  and   Assembly   should   represent  different 
constituencies.     Such   was   the   theory  of  every 
State  government  in   the  Union,  and  its  reasons 
and  wisdom  were   sufficiently  obvious.     But  no 
portion  of  the  electors  should  be  excluded  from 
the  choice  of  a  Senator — because  it  was  desirable 
that  the  voice  of  the   whole   people   should  be 
heard  in  the  annual  infusion  of  Senators  into  the 
Senate.     If  one  half  only   made  the  election,   a 
sentiment  directly  the  reverse  of  that  entertained 
by  the  whole  people  might  prevail.     A  conside- 
rable minority  holding  opinions  totally  at  variance 
with   those  of  the   majority   might    acquire    or 
retain  power  by  the  selection  of  their  agents.— 
He  (.Mr.  S  )    would  now  call  the  attention  of  the 
Convention    to   the    great  frauds  that    might  be 
perpetrated  under  the  proposed  system.       In  his 
judgment  they  would  constitute  an  msunnoutiu. 
ble    objection  to  its  successful  operation.       The 
Convention  would  recollect  that    important  elec- 
tions, involving  great  and  active  iniens's  and  de- 
veloping   the  most  intense  emotions,  were  held, 
in  the  city  of  New  York,  amidst  a  densely  crowd- 

28 


ded  population  and  within  a  small  circumference 
of  territory.  It  would  be  impossible  to  elect 
Senators  in  two  districts  of  that  city,  without 
waking  in  the  bosom  of  every  citizen  in  the  oth- 
er two,  those  anxieties  that  are  inseparable  from 
such  a  contest.  And  did  gentlemen  think  that 
designing  men  would  remain  quiet ?  Were  they 
not  rather  assured  that  the  places  of  the  election 
would  be  a  common  battle  ground  whereon  to 
determine  the  interests  it  involved,  and  that  all 
he  enginery  of  election  frauds  would  be  set  in 
operation  with  an  increase  of  power  proportioned 
to  the  importance  of  the  occasion  and  the  violence 

party  feeling?  He  did  not  need  to  answer. 
But  he  had  heard  it  urged  that  all  the  Senators 
might  be  chosen  at  the  same  time.  Very  true  and 
:hat  would  answer  the  arguments  he  had  urged 
against  the  proposition  under  consideration. — 
But  such  a  mode  of  choice  opened  a  new  e?il — it 
was  radically  defective  in  another  respect.  He 
regarded  a  choice  by  classes  as  of  the  highest 
mportance.  In  our  Republican  Constitutions  the 
Senate  was  designed  lobe  made  up  in  the  main  from 
the  older — more  experienced  members  of  t  he  com- 
munity— to  be  a  body  thoroughly  acquainted  with 
the  public  business — stable  in  character  from  the 
firm  and  wreil  matured. opinions  of  its  members  and 
rendered  yet  more  so  by  the  slowness  with  which 
t  could  be  changed.  The  advantage  of  classes 
consisted  in  the  necessary  presence  of  experienced 
members  at  all  times.  He  (Mr.  S.)  could  illus- 
trate this  from  his  own  experience.  He  had  been 
diligent  to  acquire  information,  since  he  had  been 
a  member  of  this  convention,  upon  those  subjects 
that  were  involved  in  our  labors.  Yet  he  had  of- 
ten examined  in  vain,  until  gentlemen  of  legisla- 
tive experience  had  drawn  it  forth  from  the  num- 
berless volumes  of  the  Clerk's  room,  There  was 
vast  information  contained  in  the  hidden  docu- 
ments that  lay  there,  and  it  would  be  a  great  work 
to  obtain  it  without  the  kind  advice  of  those  who 
had  had  occasion  to  use  it  before.  It  was  possi- 
ble in  this  way  that  a  new  house  might  overlook 
data  tending  to  the  most  weighty  and  useful  re- 
sults. There  was  also  much  in  that  knowledge 
of  the  course  and  policy  of  legislation  which 
is  the  fruit  of  more  matured  experience,  and 
which  renders  the  public  servant  more  valuable  in 
proportion  to  its  extent.  He  would  never  will- 
ingly give  up  the  principle  of  a  new  election  of 
some  part  of  the  Senate  at  every  State  election.-— 
The  omission  of  this  frequent  delegation  would 
tend  to  remove  the  Senate  farther  from  the  peo- 
ple, and  to  render  it  deaf  to  the  voice  of  its  con- 
stituents. For  two  years  that  representive  body 
might  close  its  ears  against  the  most  urgent  ap-  : 
peals.  But  he  would  not  proceed  further — he 
would  conclude  with  the  hope  that  the  proposi- 
tion might  fail  of  success,  and  thus  the  dangers  of 
a  defective  and  unfortunate  system  might  be 
averted. 

Mr.  WHITE  moved  to  modify  it,  so  as  to  pro- 
vide that  there  shall  be  two  elected  in  each  Sen- 
ate district. 

Mr.  PATTERSON  said  that  he  had  not  inten- 
ded to  say  a  single  word  upon  this  subject;  but 
when  he  came  to  this  Convention,  he  had  suppo- 
sed that  if  there  was  a  single  question  which  had 
been  fully  decided  upon  by  the  people  of  this 
State,  it  was  that  of  single  districts  for  Senators 


410 


He  had  never  seen  any  other  view  advocated  in 
any  newspaper  throughout  the  state;  neither  had  he 
heard  any  man  oppose  this  plan.  Under  the  pre- 
sent system,  men  are  frequently  called  to  vote  for 
candidates  who  have  resided  all  their  lives  at  least 
150  miles  off  from  a  large  portion  of  their  constit- 
uents. Is  not  this  frequently  the  case  under  the 
present  system?  (Several  members,  "yes  it  is 
so.")  And  to  vote  for  men  of  whom  they  had 
'  never  heard  before ;  of  whom  they  knew  nothing 
whatever,  not  even  their  names,  until  they  heard 
of  their  being  nominated  as  candidates.  Now, 
he  liad  but  a  word  or  two  to  say  to  the  gentleman 
from  Erie  (Mr.  STOW)  who  spoke,  as  if  he  believed 
that  the  county  of  Erie  was  to  be  prostrated  en- 
tirely  that  she  was  to  be  trodden  under  foot,  and 

her  interests  utterly  disregarded.  The  report  of 
the  gentleman  from  Onondaga  (Mr.  TAYLOR) 
gives  to  Erie  county  a  Senator  to  represent  it  by 
itself,  with  a  population  of  08,000.  Yet  Erie 
county  is  trodden  under  foot  and  her  rights  dis- 
regarded !  He  would  look  a  moment  at  this  mat- 
ter and  see  in  what  this  injustice  existed.  Is 
Erie  the  only  county  that  is  to  go  forward;  and 
is  every  other  county  to  go  backward?  The 
county  of  Erie  has  a  population  of  68,071,  which 
with  a  representation  of  four  members  on  this 
floor,  makes  a  deficiency  in  the  ratio.  Chautau- 
que  county,  with  45,983  in  population,  and  a 
large  excess  over  the  ratio  of,  about  12,000,  had 
but  two.  Now  Erie  has  but  a  little  over  18,000 
more  than  Chautauque  and  yet  has  double  the 
number  of  representatives.  And  Wyoming  coun- 
ty whose  population  was  31,000  and  over  at  the  last 
census,  had  but  a  single  member.  He  could  not 
see  what  reason  the  gentleman  had  for  complaint; 
and  he  would  not  say  a  single  word  further,  for 
if  Erie  county  with  four  members  has  not  had  jus- 
tice done  her,  then  he  knew  nothing  of  figures. 
Mr.  CROOKERsaid  he  had  no  apology  to  make 
for  rising  to  take  part  in  this  debate.  He  had 
heretofore  occupied  but  a  very  small  portion  of 
the  time  of  the  Convention.  The  question  now 
under  discussion  was  one  most  deeply  interest- 
in0'  to  the  people  of  Cattaraugus.  Their  district, 
as°gentleinen  would  perceive  by  looking  at  the 
map,  embraced  a  single  range  of  counties,  com- 
mencing with  Chenango  and  ending  with  Catta- 
raugus. With  an  average  breadth  of  about  forty 
miles,  the  length  was  not  far  from  two  hundred 
and  thirty.  In  shape,  it  resembled  a  piece  of 
ordinary  shirting  stretched  to  its  utmost  limit. — 
The  people  of  Cattaraugus  had  for  a  series  of 
years,  been  compelled  to  vote  for  senators  of  whom 
they  knew  nothing.  He  ventured  to  assert  that 
nineteen-twentieths  of  the  people  of  that  county, 
•  every  three  cases  out  of  four,  had  never  heard 
f  their  candidate  for  Senator  until  they  found 
his  nomination  in  the  newspapers.  Such,  with 
all  his  advantages  and  knowledge  of  men  in  the 
district,  had  been  his  own  condition.  And  for  all 
m-actical  purposes  of  representation,  Cattaraugus 
mio-ht  as  well  have  been  connected  with  Suilblk 
and  the  counties  on  Long  Island.  There  was  no 
communion  of  feeling  between  the  people  of 
Cattaraugus  and  Chenango.  There  was  no  union 
of  interest  between  them,  except  upon  those 
"reat  Questions  that  afreet  and  interest  the  State 
as  a  whole  The  people  of  these  counties  on 
questions  of  a  local  character,  often  the  most 


deeply  felt,  were  antipodes   of  each  other.     If 
there  was  any  one  question  upon  which  the  peo- 
ple of  that  county  were  unanimous,  it  was  in  de- 
manding the  single  district  system.     The   ex- 
pression of  their  opinion  had  on  this  subject  been 
universal.     They  desired  the  privilege  of  know- 
ing the  candidates  for  the  Senatorial  office.     And 
they  demanded   it  as  a  right  of  this  Convention. 
But  the  gentleman  from   New-York  (Mr.  SHEP- 
ARD)  raises,  as  also   other  gentlemen,  objections 
against   the  district  system.      His   first  objection 
was  that  if  the   Senators   should  be   divided  into 
two  classes,   one-half  elected  annually,  then  but 
one-half  of  the  districts  would  have  a  senatorial 
election  each  year.     He   also  urges  that  in  the 
city  of  New  York  the  colonizing  system  would 
be   practiced  to  a  great  extent.      Sir,  there  is 
great  force  in  these  objections.     I  can  never  con- 
sent to   engraft    upon   the  Constitution  a  pro- 
vision like  that  reported  by  the  committee.    The 
provision  that  the  people   shall  vote  in   one-half 
of  the  districts  in  one  year,   and  the  other  half  in 
the  next,  I   cannot   subscribe  to.     It  is  not  only 
absurd  but  dangerous.     I  can  very  easily  imagine 
that  there  are  many  thousands  of  unmarried  vo- 
ters in  the  city  of  New- York   who  would  change 
their  residence  Irom  one  district  to  another  to  en- 
ble  themselves  to  vote  every  year  for  senators  if 
that  plan  is  adopted.     This  class  are  mere  board- 
ers, and  in  many  cases  would  only  have  to  cross 
the  street  to  reach  another  district.     All  parties 
are  ready  to  resort  to  colonizing.     This  is  an  evil 
that  must  be  overcome.     But,  sir,  both   of  these 
objections  of  the  gentleman  from  New-York  are 
easily  obviated.     Let  the   whole  people  vote  in 
the  same  year.     Let  us  have   annually  a  full  and 
free  expression  from  the  electoral  body.     To  ac- 
complish this  object,  and  to  avoid  both  the  objec- 
tions of  the  gentleman  from  New- York,  we  must 
elect  the  whole  senatorial  body  at  the  same  elec- 
ion.     Let  them  be  elected  for  one  or  two  years, 
and  let  them  all  go  out   of  office  with  the   other 
tate  officers.     And  with  every  new   administra- 
:ion  let  us  have  an  entire  new  Senate  fresh  from 
the   people.     But  it  is   strongly  urged  that  we 
ought  to  have  a  long  term  of  office  for  senators  in 
order  to  avail  ourselves  of  their  experience  in  le- 
gislation.    I  ask   the  Convention  to  look  at  the 
New   England  States.     In   Massachusetts,  Con- 
necticut and  Vermont,  aye,  and  in  democratic 
Maine  and  New  Hampshire,  the  Senate  and  As- 
sembly are  elected   annually,  and  severally  hold 
heir  offices  for  a  single  year.     In  Rhode  Island  al- 
so, the    same   principle  prevails.      But  Rhode 
Island  has  so  far  swerved  from  the   democratic 
line,  that  I  will  not  hang  much  of  weight  upon 
her   example.     In  the  states  of  North   Carolina, 
Georgia,  and  even  in  Tennessee,  the  prolific  mo- 
ther of  presidents,  the  same  principle  obtains. — 
The  Senate  and  Assembly  are  elected  for  equal 
terms    of   office.     They    come    in    and    go   out 
together.     I  appeal  to  the  recollection  and  can- 
dor of  gentleman    to    say    whether  any  portion 
of  our  Union  is  better  governed  than  New-Eng- 
land.    Have  not  their  laws  been  as  wise  and  well 
considered  as   oui  own.     Have  gentlemen  heard 
of  any  outbreaks  or  outrages   committed  by  their 
legislators  upon   popular  rights.     If  they  have, 
then  they  have  been  more  fortunate  than  myself. 
So  far  as  my  information  extends,  there  is  no  por- 


411 


tion  of  our  Union  that  has  been  governed  by  wiser 
.  or  whore  the  rights  of  the  people  have  been 
better  regarded  or  maintained.  Many  i^'ntlemen 
on  the  other  side  of  this  question  insist  that  we 
must  have  experienced  legislators  in  the  senate. 
Sir,  but  a  few  days  ago,  the  same  gentlemen  pro- 
fessed great  and  unlimited  confidence  in  both  the 
intelligence  and  virtue  of  the  people.  From  the 
little  experience  that  I  have  had  in  legislation,  I 
am  of  opinion  that  it  is  more  desirable  to  get  rid 
of  that  veiy  experience  for  which  gentlemen  con- 
tend. I  should  prefer  a  legislature  fresh  from  the 
plough,  the  workshop  and  the  body  of  the  peo- 
ple, to  most  of  your  experienced  members  of  the 
Senate.  They  acquire  but  little  of  useful  know- 
ledge here.  They  learn,  it  is  true,  the  quips  and 
quirks  of  legislation  on  rules  and  questions  of  or- 
der, by  which  they  are  enabled  to  overreach  and 
defraud  the  junior  members.  This  I  submit  is  an 
intelligence  and  experience  that  are  neither  use- 
ful nor  desirable,  but  better  lost  than  gained. — 
But,  sir,  I  have  no  doubt  that  the  people  are  com- 
petent to  select  senators  that  will  be  capable  of 
discharging  their  legitimate  duties  If  they 
should  fail  to  do  so  ;  if  they  should  be  incapable 
of  discharging  the  duties  of  their  station  when 
they  get  here ;  then  let  them  employ  some  itine- 
rant lecturer  upon  legislation  and  questions  of  or- 
der and  parliamentary  law  to  instruct  them.  Let 
him  take  his  place  in  the  speaker's  chair  and 
school  them  in  legislation.  There  is  no  more  ne- 
cessity for  this  experience  in  the  Senate  than  in 
the  Assembly.  We  have  got  along  without  it  in 
the  latter  body  for  years.  What  we  have  lost  by 
the  want  of  experience  is  more  than  made  up  by 
an  honesty  of  purpose  fresh  from  the  body  of  the 
people.  I  feel  a  deep  solicitude  for  the  result  of 
the  vote  v.pon  the  question  before  us.  I  stronglv 
Tiope  the  amendment  in  favor  of  single  senate  dis*- 
tricts  will  prevail.  If  it  does  prevail,  that  vote 
will  cheer  the  hearts  not  only  of  the  people  of 
Cattaraugus  but  of  the  state  at  large. 

Mr.  STOW  said  that  in  reply  to  the  gentleman 
from  Chautauque,  (Mr.  PATTERSON)  he  would 
merely  say  that  he  had  not  complained  of  the  in- 
justice of  the  division  proposed  in  the  report,  be- 
cause of  the-  inequality  which  Erie  county  now 
suffered;  but  of  the  injustice  of  the  principle  of 
the  report.  He  had  complained  that  while  all 
other  counties  in  the  State  had  been  allowed  for 
their  increase  in  population,  those  composing 
single  districts  were  not  allowed  anything  at  all, 
unless  that  increase  was  sufficient  to  entitle  them 
to  two  members.  He  held  that  this  was  mani- 
festly unjust,  and  in  spite  of  all  that  the  gentle- 
man from  Chautauque  had  said  he  still  declared 
its  injustice.  Eire  is  set  down  at  0,314  deficien- 
cy. In  Erie  county,  there  were  13,000  aliens  na- 
turalized within  the  last  five  years,  and  this  would 
more  than  overbalance  the  deficit  in  Erie  county 
under  the  ratio.  A  fair  calculation,  he  believed, 
would  give  to  Erie  county  an  excess  instead  of  a 
deficit.  In  five  years  it  had  increased  1G,3S  1  ;— 
and  he  believed  that  an  increase  of  population 
should  always  be  taken  into  consideration  in  fix- 
ing prospective  representation — representation 
should  increase  with  population.  Chautauque 
county  in  the  same  years  had  decreased  over 
1000,  whilst  Erie  had  increased  over  10,000.  If 
the  gentleman  from  Chautauque  county  desired  to 


take  the  mathematical  view  of  this  question,  he 
would  enquire  of  him  how  Chautauque  would  be 
entitled  even  to  her  two  members,  if  she  went  on 
decreasing  for  the  next  five  years  as  she  had  done 
for  the  five  previous  ?  Ought  those  who  decrease 
to  have  prospectively  the  same  ratio  of  represen- 
tation as  one  which  increases?  Erie  county  would 
number  95,000  in  five  years  ;  taking  that  ratio, 
Chautauque  but  43,000 — and  yet  Erie  would  have 
but  four  members  and  Chautauque  would  have 
t\vo  members.  But  he  would  allow  that  gentle- 
man to  take  either  the  mathematical  or  the  com- 
mon sense  view  of  this  matter,  and  asked  him  if 
there  was  not  injustice  in  the  principle  of  single 
districts  under  these  circumstances  ?  Is  the  gen- 
tleman answered  in  his  mathematics  ? 

Mr.  RIRKLAiN'D  said  that  in  behalf  of  his 
county  which  suffered  more  than  any  other  per- 
haps, in  this  apportionment,  he  claimed  the  right 
to  be  heard  in  behalf  of  single  districts.  Could 
the  gentleman  from  Erie  (Mr.  STOW,)  who  was 
last  up,  complain,  his  county  now  having  a  defi. 
cieney,  when  the  county  of  Oneida,  having  an  ex- 
cess of  10,000,  demands  single  districts?  Can  he 
appeal  with  any  success,  when  Oneida  and  oth- 
ers urgently  ask  lor  single  districts.  What  in- 
justice is  done  to  Erie  county?  None,  whatever. 
That  county  with  her  deficiency,  and  having  less 
representation  basis  than  Oneida  by  16,000,  has  the 
same  number  of  members  on  this  floor.  He  could 
not  possibly  see  or  understand  how  the  people  of 
Erie  county  was  to  suffer  prospectively  under  the 
system  that  had  been  proposed,  any  more  than  if 
they  had  livrd  in  a  district  formed"  of  two  coun- 
ties. No  county  would  be  entitled  to  two  Sena- 
tors until  it  has  a  population  more  than  one  half 
beyond  the  ratio.  And  when  Erie  county  in- 
creases to  that  number,  she  will  be  entitled  to  two 
^enators,  the  same  as  any  other  county. 

Mr.  STOW:  when  we  get  enough'population 
to  double  the  present  in  number,  we  shall  have 
two,  and  not  before;  neither  will  any  of  our  in- 
crease be  taken  into  account  till  then,  no  matter 
how  rapidly  we  may  advance;  whereas  other 
counties,  where  two  form  a  district,  will  have 
their  increase  regularly,  fairly,  and  periodically 
calculated  and  allowed  for  by  jhe  Legislature 

Mr.  KIKKLAND:  That  gentleman's  (Mr. 
STOW)  county  will  be  entitled  to  two  senators  as 
soon  as  it  gets  the  requisite  amount  of  population; 
and  it  will  be  so  in  any  other  district  that  is 
double,  or  has  two  counties.  And  this  is  the  feel- 
ing that  prevails  all  over  the  great  State  of  New 
Yoik;  the  great  mass  of  the  people  have 'called 
aloud  and  earnestly  desire  to  have  single  districts. 
If  injustice  was  done  to  Erie  county  in  the  pre- 
sent apportionment  under  the  single  district  sys- 
tem, still  greater  injustice  was  done  to  Oneida; 
and  yet  he,  on  behalf  of  that  county,  asked  that 
single  districts  should  be  made.  The  people  de- 
manded that  this  reform  should  be  made.  He  re- 
pudiated the  idea  representing  as  he  did,  the  se. 
cond  county  in  the  State,  that  the  people  desired 
to  have  double  dis'ricts. 

Mr.  STOW:  I  did  not  advocate  that  we  shoald 
have  double  districts.  I  only  showed  that  it  was 
impossible  to  have  single  districts  on  a  systeso  of 
anything  like  equality  or  justice  without  dividing; 
counties. 

Mr.  KIRKLAND :    That  is  not  the  qttestioa  ; 


412 


neither  does  it  follow.  The  question  that  is  to 
be  settled  is,  whether  we  are  to  have  the  Sena- 
tors elected  by  single  districts  or  not.  And  he 
(Mr.  K.)  should  advocate  the  single  district  sys- 
tem as  strongly  as  any  one.  Every  consideration 
required  this,  although  there  might  be  some  ine- 
qualities occasioned  by  it.  But  there  would  be 
inequalities  under  any  system  that  could  be 
adopted  or  devised,  unless  counties  were  divided. 
This  he  thought  was  not  desirable,  although  he 
was  not  committed  on  that  point ;  and  he  would 
not  now  discuss  it.  The  gentleman's  (Mr.  STOW) 
argument  was  unsound  and  untenable  ;  that  be- 
cause a  few  comparatively  small  inequalities  were 
produced  by  a  sound  and  just  system,  which  the 
whole  people  had  loudly  demanded,  that  there- 
fore that  system  was  to  be  abandoned  and  anoth- 
er substituted  for  it,  which  the  people  who  sent 
us  here  did  not  desire,  and  which  probably  would 
represent  nearly  as  many  inequalities  as  the 
other.  He  regretted  to  take  up  any  of  the 
valuable  time  of  the  Convention,  but  he  was 
induced  solely  to  speak  because  he  was  there 
as  one  representing  the  second  county  in 
the  State,  and  which  had  loudly  demanded  the 
single  district  system  ;  although  as  much  injus- 
tice would  be  done  to  her  by  it, .  as  to  any  other 
county  in  the  state.  A  county  also  that  is  only 
to  have  one  Senator  under  this  apportionment — 
that  is  to  have  no  more  than  a  'county  (Erie) 
which  has  15,000  less  in  population  than  the 
county  that  I  have  the  honor  to  represent  in  part. 
There  is  an  imperious  necessity  for  the  establish- 
ment of  these  single  Senate  districts,  and  it  is  the 
only  way  in  which  you  bring  the  representative 
nearer  or  more  directly  home  to  his  constituents. 
And  this  fact  alone  is  an  overpowering  argument 
in  favor  of  single  districts.  The  voter  would 
know  for  whom  he  was  voting,  and  the  delegate 
would  know  the  wants  of  his  constituency.  We 
have  heard  much  about  the  absurdity  of  voting 
for  senators  only  once  in  two  years.  Why  at  this 
very  time,  under  the  existing  system,  practically, 
we  only  voted  for  senators  once  in  every  four 
years.  What  interest  have  the  people  living  in 
Cattaraugus,  I  would  ask  the  honorable  gentleman 
from  that  county  (Mr.  CROOKER)  in  the  candidate 
put  up  for  senator  in  Chemung  county  or  any  ol 
the  remote  counties  in  that  Senate  district. 

Mr.    CROOKER:  None  whatever.     That's   the 
trouble. 

Mr.  KIRKLAND:  Or  what  interest  has  the 
elector  who  lives  in  Jefferson  county,  in  the  man 
frotu  Oswego,  for  whom  he  is  called  upon  to  vote. 
That  candidate  knows  nothing  about  most  of  his 
constituents — nothing  about  their  wants— nor  has 
he  any  sympathy  with  his  interests.  Belter  vote 
for  your'own  man  once  in  two,  thiee  or  even  lour 
years,  than  to  go  through  the  idle  form  of  voting 
for  the  candidates  of  others,  three  out  of  eveiv 
four  years.  Let  them  all  vole  in  one  year  if  you 
please;  but  don't  di-prive  the  people  <>t  Laving 
single  districts.  It  was  objected  thai  this  would 
operate  badly  in  New  York  on  account  oi"  coloniz- 
ing. This  would  be  remedied  by  adopting  the 
principle  presented  in  the  report  of  another  com- 
mittee— and  provide  for  the  60  days  residence.— 
But  if  this  was  so  veiy  objectionable,  then  adopt 
the  suggestion  of  the  gentleman  from  Cattarau 
gus  and  elect  the  whole  Senate  every  two  years. 


He  had  thus  far  trespassed  because  he  represent- 
eJ  a  large  and  valuable  constituency  that  were  en- 
titled  to  be  heard,  and  he  trusted  this  proposition 
would  prevail;  for  if  there  was  anything  for 
which  the  people  had  called  from  this  Convention, 
it  was  this -ingle  district  system. 
.  jMr.  MORRIS  was  in  favor  of  single  districts 
both  for  Senate  and  Assembly.  The  great  cause 
of  calling  this  body  together  "was  that  the  consti- 
tuency wt-re  misrepresented  by  the  delegates 
elected.  They  were  elected,  under  promises  and 
pledges  they  never  kept,  and  used  the  power 
given  them  to  make  money,  and  to  advance 
aspirants  to  political  favor.  And  why,  because 
the  constituency  did  not  know  them,  and  were 
compelled  by  political  organization  to  vote  for 
men  they  did  not  know,  and  principles  they  con- 
demned. Whether  there  was  given  to  New-York 
either  single  or  double  districts  there  would  be  four 
senators,  and  that  would  give  us  two  districts.  So 
that  we  would  be  equally  exposed  to  colonization 
whether  from  four  or  two  districts.  We  were  not 
here  to  apprehend  a  fraud  but  to  guard  against  it 
New-York  had  for  years  sent  thirteen  members 
without  one  man  in  100  knowing  who  all  the  de- 
legation were.  Mr.  M.  knew  a  young  man  to  have 
been  sent  here  from  New-York,  when  those 
who  voted  for  him  supposed  they  were  voting 
either  for  his  uncle  or  his  grand  father.  They 
never  discovered  their  mistake  until  the  delega- 
tion got  together,  when  they  found  they  had 
elected  a  very  clever  boy  of  21,  instead  of  a  man 
of  experience.  [Laughter.] 

Mr.  RICHMOND :  The  mistake  was  not  dis- 
covered until  he  came  here  to  be  sworn.  I  was 
here  then. 

Mr.  MORRIS  said  that  when  these  things  oc- 
curred, the  nomination  must  be  for  other  reasons 
than  for  executing  the  laws.  The  time  came 
round  for  instance,  when  a  flour  inspector,  or  a 
beef  inspector,  or  a  tobacco  inspector  was  to  be 
appointed.  One  wanted  to  be  judge,another  notary 
public,  another  master  in  chancery,  another  com- 
missioner of  deeds,  and  so  on  ;  and  they  clubbed 
together,  each  man  picked  out  his  own  friend 
and  by  a  combination  for  office  and  office  alone, 
they  packed  your  committee,  controlled  your  con- 
ventions, made  your  nominations,  and  elected 
your  delegates.  It  was  that  made  New- York  cry 
out  for  a  Convention  and  for  single  senate  dis- 
tricts. 

Mr  KENNEDY :  Where  was  there  any  such  in- 
structions ? 

Mr.  MORRIS:  First,  in  the  15th  Ward,  and 
next,  in  Tammany  Hall. 

Mr.  KENNEDY:  That  is  not  so.  The  gen- 
tleman is  all  wrong. 

Mr.  MORRIS  :  A  printed  circular  was  sent  to 
us — I  received  one. 

Mr.  KENNEDY  :  There  was  no  answer  asked 
to  it. 

Mr.  TILDEN  explained  that  his  understanding 
as  to  the  inquiry,  was-merely  whether  they  would 
go  for  Senators  being  elected  in  districts — not  as 
to  single  districts. 

Mr.  MORRIS  asked  whether  the  circular  sent 
to  us  did  not  ask  us  a  question — of  course  not  say- 
ing— sir,  you  shall  go  it ;  but  implying  that. 

Mr.  TILDEN  :     Senate  districts  ? 


413 


Mr.  MORRIS  :  Single  districts— single  dis- 
tricts. 

Mr.  JONES  remarked  that  he  had  a  copy  of  the 
circular,  and  if  the  gentlemen  would  allow  him, 
he  would  read  the  interrogatories. 

Mr.  MORRIS  :     Is  it  in  print,  or  manuscript  ? 

Mr.  J  ONES  said  it  was  a  correct  copy  addressed 
to  one  of  the  delegates — not  to  himself,  and  not 
in  his  handwriting.  It  was — "  Are  you  in  favor 
of  Senate  and  Assembly  districts,  to  elect  one 
member  each  at  each  election  ?" 

Mr.  MORRIS  ;  That  is  it,  sir— that  is  it  exact- 
ly. That  was  the  substance  of  the  interrogatory 
adroitly  drawn  to  meet  the  views  of  a  committee 
who  were  loud  in  the  demands  for  single  dis- 
tricts. Adroitly  drawn,  he  repeated,  so  that  one 
man  might  read  it  one  way,  another  another.  To 
be  sure,  that  was  one  which  merely  asked  a  ques- 
tion. But  every  intelligent,  honest  democrat  who 
received  it,  must  have  known,  if  he  expected  the 
votes  of  those  who  proposed  the  interrogatory,  he 
was  to  answer  favorably.  And  what  honest  de- 
mocrat would  not,  if  opposed  to  the  project  con- 
templated, say  so  plainly  and  aboveboard,  before 
his  nomination — that  his  constituents  might  se- 
lect some  other  who  could  and  would  represent 
their  wishes  ?  The  circular  he  received  was  pre- 
cisely in  the  words  read,  and  they  conveyed  to 
his  mind  what  he  believed  his  constituents  in- 
tended— and  that  was  that  they  demanded  single 
districts,  and  for  the  reasons  he  had  stated.  He 
had  known  persons  here  of  the  central  power, 
sending  down  to  New- York,  saying  you  must 
elect  this  man — and  he  had  known  the  constitu- 
ency to  be  perfectly  hoodwinked  with  the  idea 
that  they  w  ere  nominating  the  man  they  really 
desired.  And  at  last  they  resorted  to  pledges. — 
For  they  found  that  they  might  nominate  the  cle- 
verest fellow  in  the  world,  and  yet  when  he  came 
here,  they  found  him  going  point  blank  against 
their  wishes.  We  in  New- York,  as  the  Conven- 
tion was  aware,  from  the  defects  in  the  report  of 
committee  No.  5 — did  not  always  write  exactly 
as  we  intended — and  the  pledges  we  sometimes 
drew  were  so  porously  drawn,  that  there  were 
holes  where  some  might  creep  out  at;  and  men 
did  make  promises  to  the  ear  and  break  them  to 
the  hope.  This  single  district  system  would  ob- 
viate all  these  difficulties.  To  be  sure,  our  po- 
litical opponents  might  carry  some  of  the  districts 
provided  they  colonized  sufficiently  to  do  it. — 
But  if  they  should,  it  would  but  be  an  expression 
of  the  opinion  of  those  who  voted,  and  what  rea- 
son was  there  that  a  fair  majority  in  a  political 
district  should  not  have  a  voice  here  ?  What  rea- 
son was  there  that  because  the  mass  of  New- York 
was  democratic,  that  that  majority  should  bear 
down  upon  the  minority.  What  to-day  was  a  de- 
mocratic district  might  be  whig  to-morrow,  and 
vice  versa.  He  believed  that  the  great  mass  of 
community  were  essentially  democratic,  call  them 
what  you  will ;  and  if  we  succeeded  in  making 
the  Constitution,  as  he  truoted  they  would,  de~- 
mocratic  from  its  core  to  its  extremities,  we 
should  hear  nothing  of  the  names  of  political 
parties.  We  shall  all  march  forward  to  the  same 
great  end— to  secure  the  rights  of  man  and  the 
perfection  of  free  government,  and  if  party  name 
were  kept  up,  it  would  only  be  for  the  purpose  of 
bringing  forward  those  who  got  them  up.  For 


these  reasons  he  should  vote  in.  favor  of  single 
listricts,  and  he  would  be  very  happy  to  increase 
the  Senate,  so  that  the  districts  might  be  made 
much  smaller  than  they  now  are,  so  that  the  re- 
presentatives might  be  brought  nearer  home  to 
the  constituency,  and  so  that  when  they  voted  for 
them  they  would  require  no  other  pledge  than  a 
life  of  honesty  and  fai  hful  integrity. 

Mr.  TILDEN  would  be  sorry  to  think  that  the 
members  of  this  body  could  for  one  moment  be- 
lieve that  the  remarks  of  his  colleague  were  a 
fair  presentation  of  the  mode  in  which  the  politi- 
cal affairs  of  the  city  of  New-York  are  conduc- 
ted. Evils  and  abuses  there  undoubtedly  were, 
yet  not  to  the  extent  described  by  his  colleague, 
nor  to  an  extent  that  marked  out  New-York  as 
the  peculiar  object  of  such  infliction.  He  (Mr. 
T.)  had  never,  during  the  short  time  he  had  had 
the  honor  to  sit  as  a  representative  for  part  of  the 
city  of  New- York,  been  accustomed  to  draw  any 
question  between  himself  and  his  constituents, 
oefore  this  or  any  other  body.  He  would  not  do 
so  now,  except  that  it  had  been  done  by  his  col- 
league, under  circumstances,  and  in  a  manner 
that  might  subject  him,  (Mr.  T.)  as  well  as  the 
rest  of  the  representation  from  New- York,  on 
this  floor,  to  misrepresentation.  He  (Mr.  T.)  re- 
ceived a  letter,  similar  to  that  which  had  been 
read,  when  he  was  here,  about  the  close  of  the 
last  session  of  the  legislature,  and  he  wished  to 
state  the  manner  in  which  he  answered  it,  in  or- 
der to  except  himself  from  the  general  imputa- 
tion of  disingenuousness,  which  seemed  to  be  cast 
upon  all  of  us  from  New- York,  who  do  not  go 
for  single  Senate  districts.  He  (Mr.  T.)  certain- 
ly understood  it,  and  he  was  sure  any  man  who 
would  read  the  language,  would  so  understand  it — 
that  in  regard  to  single  districts,  the  principle 
about  which  the  nominating  convention  was  so- 
licitous, was,  that  at  every  Senatorial  election, 
the  whole  people  should  vote.  It  was  for  that 
reason  that  he  felt  it  to  be  his  duty  on  this  floor 
to  maintain  that  opinion,  and  vindicate  that 
principle.  He  supposed  that  his  constituency 
would  expect  that  in  case  we  should  adopt 
a  term  of  two  years  duration,  to  elect  a  rep- 
resentative from  a  double  district,  and  of  the 
three  years  term  from  treble  districts,  each  of 
which  would  have  two  or  three  representatives. 
That  New-York  was  not  solicitous  to  diminish 
the  senatorial  term  or  at  all  events  to  bring  it 
down  to  a  single  year,  a  Convention  to  remodel 
the  city  charter  is  now  in  session;  and  it  seems  to 
be  generally  understood  that  one  of  the  purposes 
for  which  it  was  called  was  to  make  one  of  the 
boards  of  the  local  legislature  elective  for  a  longer 
period  than  one  or  two  years.  And  also  to  insert 
in  the  constitution  a  provision  for  a  two-thirds 
veto,  instead  of  the  mere  majority  one  that  now 
exists  there.  In  regard  to  single  Assembly  dis- 
tricts when  he  received  that  letter,  he  answered 
that  he  should  probably  vote  against  them ;  and 
that  his  predisposition  and  opinion,  so  far  as  he 
had  formed  any,  was  averse  to  single  Assembly 
districts.  And  it  was  with  a  full  knowledge  of 
these  facts  that  he  was  sent  here  in  part  to  rep- 
resent the  city  of  New- York.  He  stated  this 
simply  for  the  purpose  of  removing  the  erroneous 
impression  that  seemed  in  a  vague  and  general 
way  to  have  been  created  by  his  colleague,  that  the 


414 


representatives  from  the  city  in  opposing  on  this 
floor  the  single  senatorial  district  system  were 
violating  their  pledges  to  their  constituents. — 
It  was  due  to  those  of  us,  who  without  occa- 
sion, and  without  justice,  have  had  an  imputa- 
tion of  this  kind  thrown  upon  them,  that 
this  statement  should  be  made  If  the  course 
of  this  discussion  would  convince  him  that  it 
would  be  wise  to  depart  from  the  old  organi- 
zation of  the  State,  so  far  as  to  establish  sin- 
gle Assembly  districts,  he  should  vote  for  the 
measure,  and  not  without.  And  whichever  way, 
upon  conviction  after  discussion,  he  should  feel 
it  his  duty  to  vote,  he  was  ready  to  account  to 
his  constituents.  It  seemed  to  him  that  through- 
out the  whole  of  this  discussion  great,  evil  had 
grown  from  the  ground  gentlemen  had  assumed, 
that  there  must  be  single  districts,  and  that  with- 
out any  sort  of  regard  to  old  county  boundaries. 
If  that  system  should  be  adopted  in  the  widest 
latitude,  the  representation  in  the  Senate  and  As- 
Simbly  will  be  at  the  mercy  of  an  accidental  ma- 
jority, making  the  apportionment  in  each  ten 
years.— He  did  not  doubt  but  that  the  party  with 
which  he  acted  would,  under  the  Constitution  we 
are  about  to  frame,  have  the  exercise  of  that  pow- 
er, and  it  may  use  this  power  for  its  own  benefit, 
but  he  hoped  that  excellent  care  would  be  taken 
that  the  power  would  not  to  any  unnecessary  ex- 
tent be  conferred  upon  any  accidental  majority. 
Mr.  T.  expressed  himself  in  favor  of  an  increase 
of  the  Senate,  and  then  of  having  20  or  24  double 
districts,  which  would  have  the  effect  of  bringing 
the  representatives  in  more  contiguity  to  the  con- 
stituency which  he  represented.  It  would  also 
provide  a  constituency  that  would  distinguish  it 
from  the  Assembly,  and  which  would  be  a  check  | 
upon  its  legislation.  And  there  would  be  at  each 
annual  election  an  accession  of  members  to  the 
body,  being  fresh  to  the  will  of  the  whole  people 
of  the  State.  Mr.  T.  deprecated  the  idea  of  hav- 
ing single  districts,  as  tending  to  break  up  all  the 
boundaries  of  counties  and  towns,  and  as  throw- 
ing open  the  whole  matter  of  apportionment  once 
every  ten  years.  He  should,  therefore,  if  he  had 
an  opportunity,  vote  for  the  other  system,  and 
leave  it  to  his  constituents  to  say  whether  he  had 
fulfilled  his  duty  towards  them  or  not. 

Mr.  SALISBURY  wished  to  say  a  few  words 
in  reply  to  some  things  which  fell  from  his  col 
league.  As  one  ol  the  committee  he  had  assent- 
ed to  this  report,  but  it  was  understood  that  all 
were  not  committed  to  the  details.  He  was  in 
favor  of  the  proposition  to  divide  the  St<ite  into 
single  districts.  As  to  details  he  was  not  commit- 
ted.  He  denied  that  the  report  did  an  injustice 
to  his  constituents.  He  understood  them  to  have 
commanded  him  to  do  this  very  thing,  and  he  had 
carried  out  what  he  supposed  to  be  their  will  and 
pleasure  in  reference  to  the  single  district  system. 
His  colleague  had  said  that  the  injury  would  not 
result  to  his  county  now,  but  prospect ively — thai 
at  the  next  enumeration  there  would  be  a  large 
excess  over  the  ratio.  Mr.  S  contended  that  it 
was  utterly  impossible  fo  preserve  the  single  dis 
trict  system,  and  al  the  sune  time  secure  a  per- 
fect equality  in  representation. 

Mr.  STOW  did    nut    understand  that    his  col- 
league was  comrmled  against  the  division  of  coun- 


ties. Without  that  he  conceded  a  perfect  equali- 
ty could  not  be  attained. 

Mr.  SALISBURY  had  felt  opposed  to  this  di- 
vision  of  counties,  and  had  assented  to  the  intro- 
duction of  the  report  as  it  is.  Nor  could  lie  see 
how  his  constituents  would  be  much  better. off, 
if  the  principle  of  disregarding  county  lines  was 
adopted. 

Mr.  O'CONOR  moved  that  the  Convention  ad- 
journ. 

Mr.  RUSSELL  called  the  ayes  and  nays  on  this 
motion,  and  it  was  negatived — ayes  2S,  nays  77. 

Here  there  were  loud  cries  of  "  question,  ques- 
tion." 

Mr.  RUSSELL,  at  some  length,  expressed  his 
preference  for  a  three  years  term  for  senator. 

Mr.  RICHMOND  continued  the  debate  in  fa- 
vor of  the  single  district  system. 

Mr.  St.  JOHN  moved  iheprevious  question. 

Mr.  CHATFIELD  moved  an  adjournment. 
Lost,  44  to  62. 

The  previous  question  was  not  seconded — ayes 
40,  nays  55. 

The  question  was  then  taken  on  Mr.  RICH- 
MOND'S motion  in  favor  of  single  senate  districts, 
and  it  prevailed,  ayes  79,  nays  31,  as  follows  : 

AYES— Messrs.  Archer,  Ayrault.  H.  Backus,  Baker,  Bas- 
com,  Bouck,  Bowdish,  Burr,  Cambreleng,  D.  D.  Campbell, 
11.  Campbell,  jr.,  Candee,  Clark.  Clyde,  Cook,  Crocker, 
Dana,  Danforth.Dodd,  Dorlon,  Flanders.  Forsyth,  Graham, 
Greene,  Harris,  Harrison,  Hotchkiss,  Hunter,  E.  Hunting- 
ton,  Hutchinson,  Hyde,  Jordan,  Kernan,  Kingsley,  Kirk- 
land,  McNitt,  Marvin,  Maxwell,  Miller.  Morris,  Nellis, 
Smith,  E.  Spencer,  "VV.  H.  Spencer,  Stanton,  Strong, 
Nelson,  Nicholas,  Parish,  Patterson.  Penniman,  Povers, 
Khoades,  Richmond,  Riker,  St.  John,  Salisbury,  Sears, 
Shaver,  Shaw,  Sheldon,  Simmons,  S\vackha;ner,  Tat't,  Tag- 
gait,  Tallmadge,  J.  J  Taylor,  W.  Taylor,  Townsend, 
Ward,  Warren,  "Waterbury,  Willard,  Witleck,  "Wood, 
Worden,  W.  B.  Wright,  Yawger,  Young,  Youngs— SO. 

NOES— Messrs.  Angel,  Bergen,  Brown,  Bull,  Chatfield, 
Conely,  Cornell,  Cuddeback,  Dubois,  Hart,  Hoft'man,  Hunt, 
A.  Huntington.  Jones,  Kemble,  Kennedy,  Loomis,  Mur- 
phy, Nieoll.  O'Conor,  Perkins,  President,  Ruggles.  Rus- 
sell, Shrpard,  Stephens,  Stetson,  Tilden,  TuthiU,  Vache, 
White— 31. 

Mr.  SMITH  laid  on  the  table  a  motion  for  a  re- 
consideration. 

Adj.  to  9  o'clock  to-morrow  morning. 

FRIDAY,  (Uth  day,}  July  24. 

Prayer  by  the  Rev.  Mr.  HITCHCOCK. 

Mr.  TAGGART  offered  the  following  resolu- 
tion : — 

Resolved,  That  the  committee  of  the  whole  having  in 
charge  the  report  of  committee  No.  1,  be  instructed  to 
repoit  to  this  Convention  a  provision  that  Senate  districts 
shall  be  composed  of  contiguous  territory,  in  as  nearly  as 
practicable  a  compact  form,  and  shall  cont&in  as  nearly 
as  may  be,  an  equal  number  cf  inhabitants;  but  in  the  for 
mation  ol  Senate  distiicts.no  town  or  ward  shall  be  divided 
unless  such  town  or  ward  shall  be  entitled  to  more  than 
one  Senator. 

Mr.  TALLMADGE  moved  to  lay  it  on  the  ta- 
ble for  the  time  being. 

Mr.  TAGGART  consented  to  do  so. 

Mr.  TALLMADGE  presented  a  petition  for 
the  enlargement  of  the  Erie  canal. 

Mr.  TALLMADGE  offer- ed  the  following  reso- 
lution:— 

Rc.sclved,  That  the  city  comptroller  of  the  city  of  N*nv- 
York  report  to  this  Convention  copies  of  the  bills  winch 
make  up  the  item  of  $4,748,24  set  forth  in  his  iormer  state- 
ment, as  paid  for  "  printing  rnd  posting  of  registry  and 
maps  cf  districts  for  registiation,  expenses  of  election  of 


415 


Novcmt'c:-,  HUi:'1  also,  copies  of  bills  which  compose  the 
item  of  $3,319  IS,  set  forth  in  said  former  statement,  as 
paid  for  "  printing  mil  posting  li-t  of  rt::ri>tiy  and  map  of 
districts  for  registration,  expense-;  of  election  of  -\piil, 
l^th"  .tn  1  ,d<o,  cop  o>  of  hills  which  compose  the  item  ot 
$3  099  39,  sot  forth  in  his  former  statement,  as  •'  paid  for 
second  registration  expenses  of  November  election  ot '  lb  11  .'• 

Mr  NICOLL  called  f-r  some  reasons  for  this 
inquiry.  He  wished  to  know  the  object  of  the 
mover. 

Mr.  TALLMADGE  said  that  the  expenses  re- 
turned in  the  report  from  the  city  of  New  York, 
were  quite  large,  and  others  had  been  urged  here 
as  a  bar  to  the  registration  of  voters.  Here  was 
one  item  put  down  of  $4000  for  printing  a  lot  of 
maps,  and  he  would  undertake  to  do  this  for 
$1000,  and  make  money  by  the  operation.  When 
the  call  for  a  registration  was  made,  it  was  imme- 
diately met  by  this  call  for  the  expenses  of  regis- 
tration, and  from  the  way  in  which  the  items  were 
made  out,  he  suspected  some  wrong  play. 

Mr.  NICOLL  hoped  the  gentleman  would  with- 
draw the  resolution.  It  embraced  much,  and 
would  be  very  expensive  to  get  the  returns. 

Mr.  KENNEDY  hoped  his  colleague  would 
not  object.  If  the  information  was  procured,  it 
would  be  seen  that  the  greater  part  of  the  money 
had  gone  into  the  hands  of  the  gentleman's  (Mr. 
TALLMADGE'S)  political  friends,  if  he  had  any. 

Mr.  TALLMADGE  begged  to  say  to  the  gen- 
tleman that  he  had  not  said  he  had  no  political 
friends— for  he  had  many.  He  had  said  that  no 
corrupt  party  would  own  him,  because  he  would 
tell  them  the  truth.  And  he  begged  here  to  say 
to  that  gentleman,  that  this  habit  of  misquoting 
gentlemen  was  only  worthy  of  mere  creatures  of 
party,  third  rate  lawyers,  and  bar-room  politi- 
cians. 

Mr.  TOWNSEND  called  to  order.  He  was  sa- 
tisfied that  in  his  cooler  moments  he  would  re- 
gret having  made  use  of  such  expressions. 

TALLMADGE  was  through  with  his  re- 
marks. He  took  nothing  back,  but  had  plenty 
more  of  the  same  kind,  whenever  gentlemen  saw 
fit  to  ball  it  out ;  and  any  gentleman  who  chooses 
to  advance  in  any  of  these  matters,  will  pretty- 
soon  find  me  at  his  heels. 

Mr.  HARRISON  also  wished  the  enquiry  made, 
so  that  all  the  facts  could  be  ascertained ;  and  he 
did  not  wish  that  the  advantages  of  a  registry  law 
should  be  borne  down  by  any  garbled  statements. 

Mr.  BROWN :  I  rise,  Mr.  President,  for  the 
purpose  of  putting  a  stop  to  this  debate.  It  ap- 
pears that  the  information  here  sought  for  is  quite 
voluminous,  and  I  move  the  reference  of  the  reso- 
lution to  the  committee  on  the  elective  franchise 
at  once,  so  as  to  dispose  of  the  matter,  and  save 
the  time  of  the  Convention. 

Mr.  TALLMADGE  :  My  purpose  is  answered, 
by  this  debate. 

Mr.   HARRISON  explained. 

Some  one  called  him  to  order. 

The  resolution  was  referred. 

The  unlinish<>d  businc>-  was  then  taken  up. 

Mr.  STETSON   moved   an   amendment  to  the 

amendment  of  Mr.  WHITE,   fixing   the  term  of 

office  of  Senator  at  two   years,  so  as  to  declare 

that  the  whole  people  should  be  allowed  to  vote 

inters  at  every  general  election. 

Mr:  CHATFIELD  explained  his  vote  against 
single  districts.  If  the  number  of  32  was  to  be 


retained,  he  should  favor  single  districts.  But  he 
\v.mted  the  number  increased  to  -1s,  and  to  have 
double  districts. 

Mr.  LOOMIS:  Except  in  cases  to  supply  a 
vacancy. 

Mr.  TOWNSEND  wished  to  know  Mr.  STET- 
soiv's  object  in  offering  the  amendment. 

Mr.  STETSON  moved  to  amend  Mr.  WHITE'S 
amendment,  by  adding  thereto  the  following  : — 

"  And  so  that  all  the  electors  of  the  State  shall  be  al 
lowed  to  vote  ut  every  election  of  Senators." 

So  that  when  amended  it  would  read  thus  : 
"  And  the  said  committee  be  also  instructed  so  to  settle 
said  r.'port  as  to  provide  that  one  Senator  shall  he  elected 
in  each  district :  and  so  that  all  the  electors   of  the   State 
shall  he  allowed  to  vote  at  every  election  of  Senators." 

Mr.  TOWNSEND  said  he  would  like  to  hear 
the  gentleman  from  Clinton  (Mr.  STETSON,)  ex- 
plain the  object  of  his  amendment. 

Mr.  STETSON  said  his  object  was  to  have  the 
whole  senate  elected  at  one  time,  every  two  years, 
so  as  to  avoid  the  "  ride  and  tie"  system  recom- 
mended by  the  committee,  by  which  one-half  the 
senate  would  be  elected  every  year,  in  alternate 
districts  of  the  odd  and  even  numbers  ;  and  the 
electors  of  all  the  districts  be  biennally  disfran- 
chised. He  did  not  like  either  mode,  but  he 
thought  his  plan  the  better  of  the  two  alterna- 
tives now  left  to  us.  He  (Mr.  S.)  had  voted 
against  four  years,  and  also  against  three  years, 
in  selecting  the  duration  of  a  Senatoi's  office. 
He  voted  for  a  term  of  two  years.  He  voted 
also  in  favor  ot  an  increase  of'  Senators  to  for- 
ty. By  thus  increasing  the  Senate  we  could 
make  twenty  double  districts,  and  approximate 
to  the  popular  demand  for  single  districts,  with- 
out being  compelled,  as  we  now  aie,  to  adopt 
a  system 'grossly  unequal  in  representation,  and 
incapable  of  being  made  equal,  lor  we  must  take 
county  lines  as  we  found  them,  and  they  could 
not  be  moved  lo  meet  equality  in  the  division 
of  representation.  By  the  double  district  plan, 
we  could  secure  the  desirable  feature  of  sta- 
bility by  electing  one-half  annually,  and  per- 
mit every  elector  to  vote  at  every  election,  which 
with  him,  was  indispensable  in  any  wise  plan.— 
These  were  the  advantages  which  he  had  hoped 
to  have  preserved  by  an  increase  of  Senators  and 
double  districts:  But  yes  erday  the  Convention 
had  decided  by  a  strong  vo;e  to  stand  upon  the 
number  "thirty-two,"  and  by  a  still  stronger  vote 
not  to  elect  them  in  double  but  in  single  districts. 
All  hopes  of  forming  districts  with  any  degree  of 
equality  m  representation,  were  then,  entirely 
gone;  this  unequal  system,  of  immense  excess  in 
some  districts  and  immense  deficiency  in  others, 
was  to  pass  into  the  revised  Constitution. — 
He  could  now  only  choose  between  a  biennial  elec- 
tion of  the  whole  body,  which  he  did  riot  like, 
and  the  mode,  which  he  had  ventured  to  christen 
11  ride  and  tic"  and  against  which  he  had  made 
war  from  the  time  he  first  he  heard  ot  it.  In  his 
judgment  it  was  the  wor^r  of  all  the  modes  sug- 
gested. What  was  it  ?  Why,  the  single  districts 
were  to  be  numbered  frun  one  to  thirty  two  in- 
clusive ;  and  sixteen  Senators  were  to  be  elected 
anfcjially  ;  in  one  vear  the  electors  in  the  districts 
bearixr  the  odd  numbers  of  1,3,  5,  7,  and  sa  on, 
were  to  vote  and  fill  up  the  Senate;  the  next 
year  the  dis'ricls  having  the  even  number.",  would 


416 


politicians  at  least,  to  bring  improper  and  corrupt 
influences  upon  the  doubtful  districts  which  do 
vote  ?  The  mode  too,  helps  to  designate  the 
very  places  when  the  election  is  to  be  carried. 
Indeed,  said  Mr.  S.  is  it  not  easy  to  foresee 
plainly  as  though  it  were  written  in  letters  of 
living  light  upon  the  walls  of  this  chamber,  that  a 
few  uncertain  small  single  districts,  will  under 
the  "ride  and  tie"  system  always  be  the  Palo 
Alto,  and  Palm  Ravine  of  all  future  contests  for 
power  in  the  senate  ?  It  seemed  plain  to  him, 
and  if  he  was  in  error  he  hoped  to  be  enlightened. 
If  this  objection  was  not  obviated  he  did  not  see 
how  he  could  vote  for  the  single  district  system 
at  all ;  but  he  believed  the  Convention  would 
consent  to  make  it  more  acceptable  by  adopting 
his  amendment,  to  elect  the  body  together  once  in 
two  years. 

Mr.  RHOADES  hoped  this  amendment  would 
not  prevail.  He  (Mr.  STETSON)  said  he  would 
rely  on  the  wisdom  and  intelligence  of  the  Senate. 
If  his  mode  is  adopted,  we  shall  have  the  system 
of  an  entire  new  Senate  every  two  years.  He  (Mr, 
R.)  would  put  it  beyond  the  power  of  party  dema- 
gogues to  change  the  character  of  the  Senate  ev- 
ery election.  He  feared  not  the  use  of  money  to 
corrupt  electors.  The  Senate  would  have  noth- 

the  suggestion  to  change  our  election  laws ;  but  ing  to  do  with  the  appointing  power,  and  not 
that  would  be  imposing  great  inconvenience  upon  form  part  of  the  Court  of  Errors.  We  shall  have 
electors  and  would  too  often  unjustly  forfeit  their  1  Sheriffs,  District  Attorneys,  Clerks  and  Surro- 
right  of  suffrage.  But  the  other  objection  was  the  !  gates  and  other  local  officers  to  elect  every  year; 


remain  respectfully  silem,  and  so  on  alternately. 
One  year  the  electors  in  the  odd  districts  were  to 
exercise  the  exclusive  power  of  popular  sovereign 
ty  in  the  Senate,  and  the  even  distiicfs  in  the 
same  year  were  to  hold  the  reins  of  stability. — 
The  next  year  they  would  exchange  places;  but 
the  voice  of  the  whole  people  could  never  reach 
the  annual  accession  to  the  Senate,  nor  would  the 
stability  which  was  intended  to  be  secured  by 
this  alternation,  have  any  relation  to  the  will  of 
all  the  electors  of  the  State,  unless  from  acciden- 
tal coincidence  of  majorities  between  districts 
which  would,  and  districts  which  would  not  vote. 
But  there  were  other  and  greater  objections.  If 
he  was  not  mistaken  it  would  produce,  in  its  prac- 
tical working,  more  corruption  of  the  elective 
franchise  than  any  system  he  ever  heard  suggest- 
ed. Indeed  to  him,  it  looked  like  an  invitation 
from  us  to  the  electors  to  operate  on  the  elections 
by  means  of  corruption  funds  and  also  by  coloniza- 
tion. In  New  York  there  would  be  four  districts, 
and  two  of  them  only  would  vote  annually.  It 
would  be  hardly  possible,  with  the  present  elec- 
tion laws  relating  to  county  and  ward  residence  to 
prevent  voters  in  the  silent  districts  from  changing 
their  residence  so  as  to  vote  every  year.  He  would 
admit  that  this  objection  had  been  partially  met  by 
'  "  '  but 


one  to  which  he  wished 
the  Convention — he  had 


to  draw  the  attention  of 
not  heard  any  reference 


to  it — the  probable  use  of  corruption  funds  with- 
in the  districts  which  would  vote.  He  would  en- 
deavor to  show  how  it  would  work  practically. 
First,  it  was  quite  possible  that  there  would  be 
great  amelioration  of  partizan  feeling  but 
the  people  would  hereafter  be  divided  into 
parties  of  some  kinds.  All  public  questions 
of  interest  naturally  resolved  themselves  in- 
to affirmative  and  negative  positions,  as  much 
so  as  did  different  plans  for  the  construction 
of  a  house  or  other  work — in  the  end  it  came  to 
the  division  of  those  for  and  those  against.  This 
showed  that  new  parties  would  spring  up,  even  if 
present  ones  should  cease  to  exist.  We  were 
then  to  have  political  parties  ;  and  he  begged  gen- 
Uemen  to  look  ahead  and  see  the  position  in 
which  parties  would  be  placed,  in  order  to  ac- 
quire or  retain  the  power  of  that  body  if  the 
"  ride  and  tie"  system  prevailed.  Sixteen  se- 
nators would  hold  over,  and  we  will  suppose  them 
divided  equally,  or  very  near  equally,  in  pplitical 
sentiment.  Sixteen  are  to  be  elected  in  the  dis- 
tricts of  odd  numbers — he  meant  1,  3,  5  and  so 
on — of  these  sixteen,  twelve  may  be  supposed  to 
be  divided  in  politics  equally  and  to  have  a  fixed 
political  character  that  could  not  be  changed  ;  but 
the  remaining  four  districts  are  known  to  be 
doubtful  and  uncertain.  These  then  would  be 
the  key  to  the  power,  of  the  Senate,  and 
it  would  be  known  all  over  the  state  long  before 
an  election,  which  were  the  uncertain  and  doubt- 
ful districts  and  how  many  of  them  a  party  would 
have  to  carry  to  secure  the  power.  Is  it  not  plain, 
that  as  by  your  "  ride  and  tie,"  system  you  will 
take  away  from  the  other  half  of  the  districts  the 
right  to  vote  and  thus  decide  this  question  of 
power,  you  will  create  a  motive  in  them,  or  with 


so  voters  \vould  stay  at  home,  and  would  not  col- 
onize. And  the  60  days  residence  would  break 
up  all  that.  He  wished  to  have  men  of  experi- 
ence in  the  Senate.  The  importance  of  this  would 
overrule  any  and  every  objection  that  could  be 
urged.  It  was  said  that  the  people  might  be  trus- 
ted, and  that  they  would  select  experienced  men. 
But  reference  should  be  had  to  the  system  of 
management  by  parties,  which  would  not  always 
look  at  this  object.  And  he  feared  if  this  propo- 
sition should  be  adopted,  its  tendency  would  be 
to  elect  an  entire  Senate  of  new  men.  As  to  the 
objection  that  alternate  elections  would  lead  to 
the  use  of  corruption  funds  in  particular  locali- 
ties, Mr.  R.  thought  the  stripping  of  that  body  of 


all 
ject 


ppointing  pow 
for  using  such 


rer,  would  do  away  with  all  ob- 
j o  funds.     And  when   the  mem- 

bers looked^  at  what  the  people  would  have  to 
do  at  home  in  their  several  counties  periodically 
in  relation  to  electing  the  office  he  had  named  (as- 
was  proposed  they  should  do  under  the  new  sys- 
tem,) he  thought  they  would  have  little  time  for 
colonizing,  and  gentlemen  need  therefore  have 
no  fear  of  that,  to  say  nothing  of  the  60  days  res- 
idence that  had  been  proposed.  He  should  under 
all  these  circumstances  vote  against  the  amend- 
ment. 

Mr  SIMMONS  strongly  desired  to  see  the 
amendment  adopted.  He  could  not  see  the  force 
of  the  arguments  in  favor  of  retaining  one-half 
of  the  Senate  perpetually  in  office.  It  seemed 
to  be  a  habit  of  imitation,  that  was  unwise  and 
unnecessary.  We  had  such  an  arrangement  in 
the  U.  S.  Senate,  which  was  a  peculiarly  consti- 
tuted 'body ;  but  experience  was  against  it  in  the 
State  Governments.  In  the  New  England  States 
the  Senate  were  elected  every  year,  and  there 
were  no  examples  of  the  election  of  persons  who 
were  not  qualified  and  experienced.  Safety,  he 


417 


believed,  was  more  in  the  annually  elected  Le- 
gislatures, than  in  any  other.  As  tar  as  experi- 
ence went,  he  believed  the  House  proceeded  with 
more  parliamentary  order  than  the  Senate.  They 
were  obliged  to  do  so,  because  of  their  number. 
While  in  the  Senate,  where  there  was  no  previ- 
ous question,  they  had  long-winded  personal  con- 
versations, enough  to  fill  a  volume  of  20  year's 
political  biography.  Generally,  it  would  be  found 
that  men  of  experience  in  legislation  would  be 
returned  to  the  Senate.  He  concurred  with  Mr. 
STETSON,  in  his  argument  against  the  chequer- 
board  system  of  district  elections.  He  thought 
it  certainly  a  very  strong  one.  He  believed  the 
difference  between  the  condition  of  things  now 
and  what  they  were  when  the  Constitution  was 
adopted,  would  make  two  years  now  equal  to  four 
then  in  the  Senatorial  term. 

Mr.  MURPHY  said  it  was  evident  from  our  ac- 
tion yesterday,  that  the  sense  of  the  Convention 
was  in  favor  of  the  single  district  system  for  Sena- 
tors. He  had  opposed  that  system,  but  after  the 
derisive  vote  which  had  been  given,  he  was  dis- 
posed to  acquiesce  with  the  majority.  He  had 
voted  against  it,  however,  because  we  had  previ- 
ously determined  that  the  term  should  be  two 
years.  That  determination  drove  us  upon  one  cr 
other  of  two  evils,  either  upon  the  "ride and  tie," 
system,  as  it  had  been  denominated,  by  which 
one-half  of  the  districts  would  vote  one  year,  and 
the  other  half  the  next  year,  thus  depriving  the 
whole  people  trom  voting  annually  for  Senators, 
and  inviting  colonization dr  the  transfer  of  voters 
from  one  district  to  another  merely  to  secure  po 
litical  majorities;  or  upon  the  plan  ol  electing 
the  whole  L>o  iy  of  .Senators  at  the  same  election. 
The  1-ittp!  corr.se  will  give  us  an  entire  new  body, 
and  the  experience  which  it  was  desirable  to  have  in 
Ihe  Senate,  would  not  be  secured  so  well  as  by  hav 
ing  a  portion  of  the  body  coining  in  and  part  only  go 
ing  out.  For  those  who  like  him  opposed  the  singli 
district  system,  was  no  v  reduced  to  a  choice  ol 
these  two  evils  Relying  upon  the  people  tore- 
elect  members  of  I  he  Senate  when  they  should  be 
worthy,  and  deeming  that  alternate  district  elec- 
tions would  imperfectly  represent  public  senti- 
ment and  lead  to  corruption,  he  would  vote  for  th 
amendment  of  his  friend  from  Clinton.  He 
had  however  a  suggestion  to  make,  so  as  to  ren- 
der the  proposition  more  acceptable.  The  whole 
theory  of  our  legislation  is  founded  on  the  idea  o 
checks  and  balances.  The  creation  of  two  bodies 
is  intended  to  prevent  hasty  legislation  by  making 
one  a  check  to  the  other,  while  the  conferring  o 
the  veto  upon  the  Governor  is  designed  as  anothei 

Erotection  agains    improvident  action  by  thelegis 
itive  department.     His  suggestion  was  this — U 
provide  that  the  Senators  should  be   elected  at  a 
different  period  from    that  of    the  Governor  wh 
was  also  elected  for  the  same  term.     He  therefore 
asked  his  friend  to  extend   his  amendment  so  a 
to  make  the  Governor  and    Senate  elective  alter 
uately. 

Mr.  STETSON  said  I  hat  such  a  result  woul< 
naturally  be  brought  about.  The  G-.vernor  wil 
now  be  elected  next  fall,  while  the  Senators  woul< 
not  be  elected  until  the  following  year  that  beinj 
the  first  year  after  the  new  Constitution,  if  adopt 
ed,  would  £o  into  effect. 

Mr.  MURPHY  cosi'.mued:   If  that  be  so  under 


tood  he  had  nothing  rnoie  t>  say,  as  his    object 
vnuld  in  that  way  he  accomplished. 

Mr.  A.  W.  YOUNG  said  he  had  declared  him- 
elf  in  favor  of  retaining  the  principle  of  dura- 
ility  upon  which  the  Senate  is  at  present  form- 
al. He  still  preferred  this,  so  far  as  it  may  be 
lone  consistently  with  other  objects.  The  Con- 
vention had  decided  that  we  should  have  single 
Senate  districts.  It  remained  to  determine  what 
iiul  been  called  by  a  gentleman  the  choice  of  two 
;vils;  that  is  to  say,  whether  the  Senators  in  all 
he  districts  shall  be  elected  the  same  year,  and 
hus  allow  the  whole  Senate  to  come  into  and  go 
jut  of  office  at  the  same  time;  or  whether  one 
Senator  should  be  chosen  every  year  in  one  half 
)f  the  districts.  He  therefore  thought  it  advisa- 
)le  that,  without  the  farther  discussion  of  other 
questions,  a  vote  should  be  taken  at  once  to  as- 
certain the  sense  of  the  Convention  upon  the 
sections  he  had  mentioned. 

Mr.  CROOKER  said  he  should  support  the 
imendment  of  the  gentleman  from  Clinton.  He 
.lad  himself  first  suggested  this  proposition  to  the 
committee  in  the  debate  on  the  single  district 
question.  He  was  utterly  opposed  to  the  "  ride 
and  tie  "  system  reported  by  the  committee.  He 
desired  a  full  expression  of  the  popular  vote  to 
Dear  upon  the  senate  in  a  single  year.  By  the 
system  reported,  but  one-half  of  the  electoral 
3ody  would  annually  vote  for  senators.  This  was 
a  most  objectionable  and  dangerous  feature. 
wTould  greatly  endanger  the  purity  of  the  ballot 
box.  Appliances  might  be  brought  to  bear  npon 
close  districts  to  defeat  a  fair  expression  of  the 
public  will.  In  large  towns  and  cities  the  colo- 
nization system  could  not  be  prevented.  .  The 
gentleman  from  Onondaga  (Mr.  RHOADES,)  insists 
that  "  we  sufficiently  guard  against  colonization 
by  requiring  sixty  da) 's  residence  in  ihe  wards 
before  election."  He  (Mr.  C.)  apprehended^  that 
would  by  no  means  afford  an  adequate  remedy. — 
Nor  would  a  residence  of  six  months  remedy  the 
objection.  It  might  lessen  the  amount  of  corrrp- 
tion,  not  wholly  prevent  it.  In  the  city  of  New. 
York  there  weie  thousands  of  voters  who  had  no 
tarnilies  and  were  merely  boarders  in  the  families 
of  others.  How  easy  for  them  to  vote  in  the  first 
district  this  fall,  and  then  sixty  days  or  sixty 
months,  if  vou  please,  before  the  next  election 
change  their  boarding  place  into  District  No.  2. 
In  doing  this  many  would  perhaps  only  change 
sidrs  of  the  same  street,  and  thus  they  would  vote 
for  senators  every  year.  There  is  no  way  to  pro- 
tect the  rights  of  the  whole  people  and  to  get  a 
fair  and  full  expression  of  the  popular  will  under 
ihe  system  reported  by  the  committee.  The 
amendment  under  consideration  fully  remedies 
the  evil.  It  proposes  to  elect  the  whole  number 
of  senators  at  one  and  the  same  election.  The 
senators  would  come  in  and  go  out  together.  But 
the  gentleman  from  Onondaga  says  we  «'  must 
have  experienced  men  in  the  senate"  "That 
the  people  will  elect  an  entirely  new  senate  at 
each  election."  The  gentleman  from  Onondaga 
seems  to  have  forgotten  his  former  confidence 
in  the  correctness  of  the  popular  judgment.— 
But  a  few  days  since,  he  insisted  that  the  peo- 
ple should  be  left  entirely  free  in  the  choice  of  a 
Governor.  But  with  all  his  confidence  in  their 
honesty  of  purpose;  he  is  unwilling  to  trust  them 


418 


with  the  choice   of  their  Senators   at  the   same 
election.     The  cry  that  we  must  have  great  expe- 
rience in  the  Senate  has  been  often  rung   in  this 
hall.     He  denied   its  correctness.     The  past  his- 
tory of  legislation  would  demonstrate  that   long 
experience  in  the  Senatorial  body  had  been  any- 
thing but  useful  to  the  interests  of  the  people.  In 
their  first  years  of  office,  the  Senators  came  there 
upright  and  pure.     They  generally  came,  he  had 
no  doubt,  intent  upon  the  public  good.     They  did 
not  come  there  to  learn  what  the  people  demand- 
ed, but  to  carry   out  their  will.      The   Senators 
have  seldom  improved  in  their  long  term  of  office 
in  the  principles  of  honesty  and  integrity.     They 
soon  learned  to  forget  all  they  ought   to  remem- 
ber, and  retained  only  the  mere  quibbles  of  legis- 
lation.    He  (Mr.  C.)'  appealed  to  the   history  of 
the  Senate  for  the  proof  of  his  position.     What 
had  been  the  spectacle  exhibited   to   us   in  that 
body  in  the  year  past  and   in  former  times  ?     It 
was  that  very  experience  that  he  desired  to  avoid. 
If  it  was  possible,  he   desired  to  get  rid   of  the 
whole  of  it  at  least  once  in  two  years.     He  be- 
lieved the  Senate  had  been   the  greatest  Dema- 
gogue factory  in  the  State.     It  was  time  that  some 
remedy  should  be  applied.      But,  Mr.  Chairman, 
said  Mr.   C.,  if  we  must   have  Senators  learned, 
and  the  people  will   elect  men    ignorant   of  the 
forms  as  legislation,  as  was  said  by  John  Ran- 
dolph, "  I  have  found  the  philosopher's  stone;" — 
We  will  send  the  Senators  after  their  election  for 
a  term  to  the  State   Normal   School,   to   instruct 
them  in  the  science  of  legislation  ;  and  to  perfect 
them  in  the  forms,  we  could   hire  some  old  and 
experienced  Senator,  (my  friend   from  Onondaga 
for  instance,)  to  act  as  drill  sergeant  to  that  body. 
In   this  way  we   could  ensure  a  sufficiency   of 
knowledge  in  the  Senate,  and  take  them  honest  and 
fresh  once  in  two  years  from  the  body  of  the  people. 
It  had  been   proposed  to   hold  the  gubernatorial 
and  senatorial  elections  in  different  years.     This 
principle  he  was  opposed  to.     He  was  in  favor  of 
electing   the  governor,  legislature   and  state  of- 
ficers in  the   same  year.     He   would  have  them 
come  in  and  go  out  of  office  together  to  preserve 
harmony  of  action.     He  wanted  none  of  these  bo- 
dies holding  office  for  a  long  term  of  years  to  save 
the  people,   in  the  language   of  the  olden  time, 
"  from  their  worst  enemies,  themselves."     This 
sentiment  had  long  since  exploded.     He  had  every 
confidence  that  the  people  could  be  safely  trusted 
with  the  election  of  the  senate  once  in  two  years. 
With  all  the  senatorial  talent  and  experience  that 
we  have  on  this  floor,  and  here  are  very  many  an- 
cient and  able  senators,  we  have  found  ourselves 
several  times  involved  in  difficulties  on  questions 
of  order  from  which   they  could  not  very  readily 
extricate  us.     Let  us  look  with  confidence  to  the 
intelligence  of  the  people.     They  will  send  you 
honesty  and  integrity.     They  will  send  you  all 
the  talent  that  is  necessary  to  carry  out  their  wish- 
es  by  legislation.     When  have  they  ever  failed  to 
do  so.     The  assembly  is   chosen  annually.     Did 
we  ever  find  a  dearth  of  talent  in  that  body.     Who 
has  met  an  assembly  that  had  not  in  its  composi- 
tion a  sufficient  degree  of  experience   to  go  on 
with  the  forms  of  legislation— to  do  all  that  the 
popular  voice  required.     The  amendment  of  the 
gentleman  from   Clinton   fully  accords   with  my 
views.     It  proposes  to  elect  them  all  together  ; 


:he  whole  people  voting  at  every  election.  I 
therefore  give  it  my  cordial  support  and  I  humbly 
hope  it  may  prevail. 

Mr.  RUGGLES  regretted   that  he  was  obliged 
to  differ  in  this  matter  from  friends  with   whom 
he  had  previously  acted.     He  regarded  the  prop- 
osition now  under    consideration,  as    the   very 
worst  of  all  possible  plans,  that  could  be  devised, 
or  adopted ;  for  by   electing  all  the   members  of 
the  Senate  in  one  year,  you  abandon  the  idea  the 
Senate  is  to  be  a   continuous  body,   or  that  there 
should  be  a  difference  between  the  two  houses. — 
It  appeared  to  him   to  be   a  valuable  system   to 
have  a  portion  of  the  Senate  remain  whilst  others 
were  coming  in.     He  might  allude  to  many   in- 
stances to  sustain  his  opinion.    Our  practice  is 
totally  different  from  that  of  the  Eastern  states. 
If  we  elect  the  Senate  for  one  year  only,  we  are 
much   more   likely  to   have  a  continuous   body, 
than  by  electing  all  of  them  every  two  years. — 
There  were  many  interests  of  the  State,  such   as 
its  financial  concerns,  which  could  not  be  under- 
stood by  a  member   coming  in  for  a  60  days  ses- 
sion. There  were  various  institutions ;  our  schools 
and    colleges — prison  system,     &c.  and  a   vast 
amount  of  business — with  whose  concerns  it  re- 
quired a  knowledge  of  greater  extent,  in  relation 
to  the  former  legislation  in  regard  to  them,  than 
could  be  obtained  in  a   single  session.     If  single 
districts  were   to  be   adopted,  he  believed   that 
by  an    annual  election,    there  would    be    more 
chance  of    .have    a    permanent    body    than    by 
an  election  for  two  years.  Because,  if  elected  for  a 
single  term,  very  many  of  them  would  probably  be 
returned,  which  would  not  be  the  case  with  a  Sen- 
tor  elected  lor  tvso  yeais.     The    proposed   system 
would  so  operate  that  the  check  of  the  Senate   on 
the  House  would  be  lost.     Both  Houses  would  be 
in  the  same   condition;  we    should  lose  all   that 
was   valuable  in  the  difference  between    the   (wo 
bodies,  and  gain  substantially  nothing.     He  was  in 
favor  of  a  three  years  term,   but   as  the   sense  of 
the  Convention  was  against  him,  upon  that   ques. 
lion,  he  would  have  the  election  so  arranged  that 
two  years   experience  should  be  provided  before 
one-half  was  succeeded   by  another.     This  would 
secure  that  experience  in  relation  to  our  numer- 
ous and  important  Slate  interests  which    was   im- 
portant   for  a  Senator  to  have.     He  had   always 
thought  it  was  best  to  break  up   the  time   when 
members  of  the  Senate  were  elected,  or    were    to 
corne  in,  so  that  they  might  have  the  experience 
of    one   portion,   and   also  have   another  portion 
fresh  from  the  people      He  would    vastly    prefer 
the  one  year  system,    because    by   the   other,   we 
give   up    all  that   is  valuable  and   gain    nothing. 
Verv  few  would  be  elected  after  a  two  year's  term  ; 
many  ,\ould  be  elected  after  one  year's  term.     If 
we  are  to  take  the  shorter  term,  I  would  take  that 
which  presents    the  most   advantages;    in    order 
that  Senators  should  have   some  knowledge   and 
experience  to  enable  them  to  commence  business 

that  all  may  not  have  to  learn  the  duties  of  the 

station  after  they  accept  office  whose  duties  they 
have  to  perform 

The  question  being  taken,  the  amendment  of 
Mr.  STETSON  was  adopted,  ayes  104,  nays  12. 

AYES— Messrs.  Ansel,  Archer,  Ayrault,  H.  Backus, 
Ba.com  Bouck.  Bowdish.  Brown,  Bruce,  Bruhdage,  Bull, 
Burr  Cambreleng,  D.  D.  Campbell,  R.  Campbell,  jr.  Can- 


419 


doe,  rhumb  >rlain,  Chatftvld,  Clark,  Clydw,  Cook,  Cornell, 
Crouk^r,  Cuddeback,  Dana,  Daniorth,  Dodd,  Dorlon, 
Flanders,  Forsyth.  Gardner,  Gebhard,  Graham.  Greene, 
Harris,  Harrison,  Hart,  Hawley,  HoirV.ian,  Hotchkiss, 
Hunt,  IJu'iU'i-,  A.  Ilmv.ington.  Hntchinson,  Hycie,  Jones, 
Kemble,  Kennedy,  K^' nan,  Kingsley,  Kirkland,  Loomis, 
Mo.Nitt,  Maxwell,  Miller,  Morris,  Murphy,  Nwllis,  Nelson, 
Nicoll,  Parish,  Pa'.teison,  Pennirvan,  Perkins,  Po\\  ers,  Pre- 
sident, Richmond,  Riker,  Russell,  St.  John,  Sali-bury. 
Shaver,  Sh  ;w,  Sheldon,  Shepard,  Simmons,  Smith, 
W.  H.  Spencer,  Stanton,  Stephen*,  Stetson.  Stow,  Strong, 
Swackh'imer,  Talt,  Taggait,  J.  J.  Taylor,  Townsend, 
Tuthill,  Vache,  Van  Schoonhoven,  Wa*d,  Warren,  Wa- 
tcrlr.iry,  White,  Willard,  Witln-ck,  Wood,  Worden,  W. 
B.  V/iight,  Yawger,  Young,  Youngs— 104. 

NOES— Messrs.  Bergen,  Conely,  Dubois.E.  Hunting- 
ton,  Jordan,  Marvin,  Nicholas,  O'Cenor,  Rhoades,  Rug- 
gles,  E.  Spencer,  Tallmadge— 12. 

The  question  was  then  taken  on  the  resolution 
as  amended,  instructing  the  committee  of  the 
whole  to  make  32  single  Senate  districts  ;  the 
term  of  office  to  be  two  years,  and  all  the  Sena- 
tors to  be  elected  at  once,  was  then  adopted,  ayes 
92,  noes  19. 

Some  conversation  here  ensued,  as  to  the  pro- 
per course  now  to  be  pursued,  in  relation  to  the 
report,  when,  on  motion  of  Mr.  BROWN,  the 
Convention  went  into  committee  of  the  whole, 
Mr.  PATTERSON  in  the  Chair,  on  the  report. 

The  CHAIR  stated  that  it  would  amend  the 
report  in, the  first  section  (in  relation  to  the  elec- 
tion, &c.,  of  Senators)  in  pursuance  to  the  direc- 
tions of  the  House.  The  Chair  put  the  question 
whether  there  was  to  be  any  further  amendment 
to  the  section  as  amended. 

Mr.  HUNT  moved  to  amend  so  as  to  provide 
that  the  Sen;;f  r  and  Assembly  should  be  elected 
biennially, 

The  amendment  was  rejected. 

Mr.  TAGGART  moved  to  amend  so  that  the 
Assembly  should  consist  of  136  members. 

Mr.  MURPHY  moved  14S  members. 

Mr.  CHATFIELD  suggested  that  the  question 
should  be  taken  first  on  striking  out. 

Mr.  PENNIMAN  moved  144. 

The  amendment  of  Mr.  MURPHY  received  21 
votes— that  of  Mr.  PENNIMAN  was  also  nega- 
tived. 

Mr.  A.  W.  YOUNG  briefly  supported  the  a- 
mendment  of  130,  as  it  would  do  justice  to  some 
counties  that  were  now  unequally  represented. 

Mr.  J.  TAYLOR  said  while  the  evil  v\as  re- 
dured  as  to  one  county  it  would  be  increased  in 
others.  He  had  yet  to  hear  the  first  man  out  of 
this  Convention  ur^e  this  view. 

Mr  A.  W.  YOUNG  thought  that  it  would  tend 
greatly  to  lessen  the  evil. 

Mr.  CONELY  proposed  140. 

Mr.  TALLMADGE  said  if  the  number  of  thir- 
ty.two  was  to  comprise  the  Senate  and  that  of'12S 
was  kept  in  the  Assembly,  the  proportion  ol 
furrn  to  one  another  would  be  preserved. 

Mr  RUSSELL  briefly  advocated  the  amend, 
ment  as  tending  to  equalize  the  representation. 

The  question  being  taken,  the  number  140  was 
rejected. 

Mr.  A.  W.  YOUNG  proposed  the  number  of 
132. 

Mr.  CLYDE  had  voted  in  favor  of  single  Sen- 
ate  and  Assembly  districts,  but  was  opposed  to 
ony  division  of  county  lines. 

The  number  132  was  r* jected. 

Mr.  SWACKHAMER  moved  to  amend  so  as  to 


p-ovide  for  biennial  sessions.  They  wure  voted 
ilo.vn. 

Mr.  SIMMONS  moved  an  amendment,  pro\  id- 
ins  that  the  Senate  should  consist  of  32  members, 
to  b^  elected  every  four  yeiirs. 

The  CHAIRsaid  it  was  nut  in  order. 

The  next  section  was  then  read  as  follows  : — 

§  5.  The  State  shall  be  divided  into  thirty-two  districts, 
to  be  called  Senate  districts,  each  of  which  shall  chose  one 
Senator.  The  districts  shall  be  numbered  from  one  to  thir- 
ty-two inclusive. 

District  No.  1,  shall  consist  of  the  counties  of  Suffolk  and 
Queens. 

11  No. -2,  shall  consist  of  the  counties  of  Kings  and 
Richmond. 

'f  No.  3,  shall  consist  oi  the  first,  second,  third,fourth, 
fifth  and  sixth  war.is  of  the  city  and  county  of 
Ne.w  York. 

"  No.  4,  shall  consist  of  the  seventh,  tenth,  thir- 
teenth, and  fourteenth  wards. 

"  No.  5,  shall  consist  of  the  eighth,  ninth  and  fifteenth 
wards. 

"  No.  6,  shall  consist  of  the  eleventh,  twelfth,  six- 
teenth, seventeenth,  and  eighteenth  wards. 

"  No.  7,  shall  consist  of  the  counties  of  Westchester, 
Putnam  and  Rockland. 

"  No.  8,  shall  consist  of  the  counties  of  Dutchess 
and  Columbia. 

««  No  9,  shall  consist  of  the  counties  of  Orange  and 
Sullivan. 

"  No.  10,  shall  consist  of  the  counties  of  Ulster  and 
Greene. 

"  No.  II,  shall  consist  of  the  counties  of  Albany  and 
Schemctady. 

'«        No.  12,  shall  consist  of  the  county  of  E.eiisselaer. 

««  No.  13,  shall  consist  ol  the  counties  of  Washington 
and  Saratoga. 

"  No.  14,  shall  consist  cf  the  counties  of  Wairen,  Es- 
sex, and  Clinton. 

"  No.  15,  shall  consist  of  the  counties  of  St.  Law- 
rence and  Krarikliu. 

«•  No.  16,  shall  consist  of  the  counties  of  Herkimer, 
Hamilton,  Fulton  and  Montgomery. 

-<  No.  17,  shall  consist  of  the  counties  of  Schoharie 
and  Otsego. 

"  No  IS,  shall  consist  of  the  counties  of  Delaware  and 
Chenango. 

"        No.   19,  shall  consist  of  the  county  ofOnenla. 

"  No.  20,  .-hail  consist  of  the  counties  of  Madison  and 
Oswego. 

"  No.  21,  shall  consist  of  the  counties  of  Jeflerson 
and  Lewis. 

"        No.  22,  shall  consist  of  the  county  of  Onondaga. 

"  No.  23.  shall  consist  of  the  counties  of  Cortland, 
Broome  and  Tioga. 

"  No.  24,  shall  consist  of  the  counties  of  Cayuga  and 
Wayne. 

"        No.  25,  shall  consist  of  the  counties  of  Tompkins, 


Seneca  and  Chemung. 
..    sist  of 
and  Yates 


No.  26,  shall  consist 


the  counties  of  Steuben 


'•        No.  27,  shall  consist  of  the  county  of  Monroe. 
"        No.  28,   shall  consist  of  the  counties  of  Oileans, 

Geneseeand  Niagara. 
••        No.  29,  shall  consist  ot  the  counties  of  Ontario  and 

Livingston. 
11        No.  30,   shall  consist  of  the  counties  of  Allegany 

and  Wyoming. 

«'        No.  31,  shall  consist  of  the  county  of  Erie. 
"        No.  32  shall  consist  ofthe  counties  of  Chautauque 

and  Cattaraugus. 

Mr.  JORDAN  offered  the  following  amendment: 

To  strike  out  all  after  the  word  '•  Senator"  in  the  third 
line  and  insert  as  follows:  "The  Legislature  shall,  at  its 
next  session,  divide  the  State  into  32  Senatorial  districts,  to 
be  composed  of  contiguous  territory,  as  nearly  in  a  com- 
pact form  as  may  be,  without  dividing  counties." 

Mr.  STETSON  objected  to  this  amendment  as 
not  being  in  order. 

Mr.  JORDAN  insisted  he  was  in  order,  and 
after  some  conversation  as  to  the  point  of  order, 
the  Chair  decided  it  to  be  in  order. 

MB.  R.  CAMP13ELL,  Jr.,  in  the  absence  ofthe 


420 


chairman  of  the  committee,  felt  it  to  be  his  duty 
to  express  the  hope  that  the  amendment  would 
not  prevail.  Mr.  C.  urged  that  the  apportion- 
ment of  the  districts  should  be  made  in  Conven- 
tion, and  he  could  1iot  vote  to  throw  it  over  un- 
til the  next  meeting  of  the  legislature. 

Mr.  STOW  moved  to  amend  the  amendment  by 
striking  out  the  words  "  without  dividing  coun- 
ties," and  inserting  "  without  dividing  Assembly 
districts."  Mr.  S.  addressed  the  Convention  in 
explanation  of  his  amendment,  and  of  the  votes 
which  he  felt  bound  to  give.  The  Convention 
having  determined  to  have  single  districts,  he 
would  yield  up  the  division  of  counties,  and  make 
each  Senate  district  out  of  every  four  Assembly 
districts. 

Mr.TAGGART  proceeded  to  refer  to  a  mass  of 
statistics  and  figures  as  showing  the  inequality  of 
representation  in  the  present  system.  When  ha- 
ving spoken  five  minutes, 

The  CHAIR  called  him  to  order,  in  pursuance 
of  the  5  minuses  rule. 

Mr.  RICHMOND  moved  that,  he  have  leave  to 
proceed. 

Mr.  KENNEDY  inquired  if  the  committee 
could  repeal  a  rule  of  the  Convention  ? 

The  CHAIR  replied  that  it  could  only  be   done 
by  unanimous  consent. 
Mr.  KENNEDY  objected. 
Mr.  RICHMOND  moved  to  rise  and  report  pro- 
gress in  order  to  move  to  rescind  this  rule.     This 
was  lost,  2G  only  rising  in  the  affirmative. 

A  long  desultory  debate  took  place  on  points  o 
order,  and  on  an  appeal  from  the  decision  ot  the 
Chair,  during  which  several  motions  to  rise  am 
report  were  rejected,  when 

Mr.  STOW  modified  his  amendment,  so  as  mere 
ly  to  strike  out  the  words  "  without  dividing  coun^ 
ties  " 

Mr.  TAGGART  (this  being  a  new  proposition; 
resumed  and  concluded  his  remarks. 

Mr.LOOMIS  opposed  any  proposition  that  woulc 
break  up  town  and  county  lines.  He  considerec 
the  system  ot  town  and  county  municipal  go- 
vernments as  the  foundation  of  our  system  of  go 
vernment,  and  that  therefore  it  ought  not  to  be 
interfered  with,  without  great  care.  Mr.  L.hopec 
the  Convention  would  yet  agiee  upon  double  dis 
tricts,  as  tending  to  equalize  representation  an< 
satisfy  the  people. 

Mr.  RUGGLES  referred  to  some  inequality  ii 
the  propositions,  and  urged  that  it  would  be  bet 
ter  that  the  committee  should  rise  and  report  pro 
gre?s  in  order  that  gentlemen  might  have  an  op 
portunity  to  look  over  and  examine  the  question 
He  made  that  motion  and  it  prevailed,  ayes  49, 
nays  35. 

Mr.  WORDEN  moved  to  rescind  the  five  mi- 
nutes rule. 

Here  ensued  a  debate,  in  which  R.  CAMPBELL, 
Jr.  CLYDE,  BURR,  JOXES,  KARRIS,  and  others  par- 
ticipa'ed,  when  the  motion  prevailed,  ayes  61, 
nays  15. 

And  then  the  Convention  adjourned. 

AFTERNOON*  SESSION. 

APPORTIONMENT  OF    THE  LEGISLATURE. 
The    committee  of  the  whole,    Mr.  PATTER- 
SON in  the  Chair,  took  up  the  report  of  commit- 


ee  No.  1,  on  the  apportionment,  tenure  of  office, 
tc.  of  the  Legislature. 

The  question  recurred  on  Mr.  JORDAN'S 
mendment,  as  follows : 

To  strike  out  all  after  the  word  "  senator,"  in  the  third 
ine,  and  insert  as  follows:  "The  legislature  shall  at  its 
ext  session,  divide  the  state  into  3-2  senatorial  districts,  to 
e  composed  of  contiguous  territory,  as  nearly  in  a  com- 
pact form  as  may  be,  without  dividing  counties." 

The  question  was  then  taken  on  Mr.  STOWS 
mendment,  to  strike  out  the  three  last  words, 

without  dividing  counties."    This  was  lost. 

The  question  then  came  up  on  the  amendment 
t  Mr.  JORDAN. 

Mr.  CAMBRELENG  said  that  before  striking 
iut,  as  proposed  by  Mr.  JORDAN,  they  had  much 
Better  endeavor  to  perfect  the  section.  If  they 
could  not  arrange  the  apportionment  of  the  Senate 
Hstncts  then  they  could  impose  that  duty  on  the 
Legislature.  He  hoped  that  all  who  had  plans  to 
mprove  the  section  would  repeat  them  now. 

Mr.  PERKINS  said  he  thought  this  apportion- 
ment was  as  fair  a  one  as  could  be  made,  by  any 
one,  and  only  required  a  few  small  corrections. 
He  believed  it  would  be  quite  as  easy  for  this 

onvention  to  arrange  these  districts,  as  it  would 
for  the  next  Legislature  to  do  it.  And  there 
would  be  much  more  reason  to  believe  that  it 
would  be  done  here  with  impartiality.  It  would 
be  a  remarkable  piece  of  good  fortune  if  the  next 
Legislature  should  not  be  much  more  controlled 
by  "party  interests  than  this  body  was ;  and,  while 
that  was  'the  case,  an  apportionment  made  by 
them  would  be  made  to  subserve  party  purposes, 
so  far  as  possible.  It  would  also  be  likely  to  con- 
sume more  time  then  than  now,  and  a  heavy  ex- 
pense would  be  the  consequence.  Half  an  hour 
would  be  sufficient  to  perfect  this  matter,  if  debate 
was  waived. 

Mr.  R.  CAMPBELL,  Jr.,  said  he  hoped  the 
committee  would  not  make  the  reference  asked 
for  by  the  gentleman  from  Dutchess.  Having 
settled  the  question  as  to  the  number  of  Senators, 
how  chosen,  and  the  term  of  their  office,  and 
having  decided  in  favor  of  the  single  district  sys- 
tem, and  that  no  countv  was  to  be  divided  in  the 
formation  of  a  district,  he  apprehended  the  labor 
of  making  the  apportionment  by  this  Convention 
could  not  be  difficult.  He  did  not  believe  an  ap- 
portionment upon  the  principles  settled  could  be 
made  so  as  to  have  each  district  contain  an  equal 
representative  population,  nor  if  so  made  could  it 
long  remain  equal.  Whoever  was  at  all  acquaint- 
ed with  the  statistics  of  this  State  and  its  varied 
business  relations  and  changes,  must  know  that 
however  equal  the  Senatorial  districts  might  be 
this  year,  the  next  year  the  greatest  inequality  in 
representative  population  in  those  districts  would 
exist.  He  said  that  a  few  years  since  the  legisla- 
ture of  this  State  had  apportioned  this  State  into 
Congressional  districts,  and  that  the  apportion- 
ment was  a  popular  one ;  out  of  which  little  or 
no  discontent  arose.  And  it  would  now  be  found 
by  reference  to  a  document  of  the  last  Assembly, 
exhibiting  the  representative  population  in  those 
districts,  (^  which  document  had  just  been  kindly 
furnished  him,)  that  such  Congressional  districts 
were  vastly  more  unequal  in  representative  po- 
pulation than  the  Senatorial  districts  reported  by 
the  standing  committee  ;  that  some  of  those  Con- 


421 


-i-mal  districts  have  a  population  of  from  20,- 
030  ti>  >re  than  others,  or  that  is  required 

for  a  member  of  Congress.  He  said  a  delegate  near 
him  remarked  that  such  documents  exhibited  only 
i-.-srnt  j)opulation  of  those  districts.  If  so, 
it  proved  that  but  a  few  years  were  required  to 
produce  the  greatest  inequality  in  representation. 
He  said  the  Convention  of  1777,  and  of  IS'H,  had 
both  formed  the  Senatorial  districts  of  the  State, 
and  he  hoped  this  Convention  would  not  be  less 
wise,  and  that  they  would  not  send  the  matter  of 
apportionment  to  the  legislature.  He  said  the 
members  of  this  Convention  had  already  bestow- 
ed considerable  time  and  labor  upon  the  section 
under  consideration ;  that  he  (Mr.  C.)  had  ascer- 
tained that  several  of  the  districts  formed  by 
such  section  could  be  made  more  equal  in  rep- 
resentative population  by  a  change  of  counties 
from  one  district  to  another,without  violating  any 
of  the  principles  settled  upon,  by  the  Convention. 
He  said  the  deficiency  of  population  in  district 
No.  1  could  be  obviated  by  taking  the  county  of 
Richmond  from  district  No.  2  and  by  attaching  it 
to  district  No.  1 — leaving  the  county  of  Kings 
which  was  a  county  rapidly  increasing  in  popu- 
lation and  he  therefore  moved  so  to  amend  the 
section  under  consideration. 

M.  HARRISON  hoped  the  proposed  amend 
ment,   by   the   gentleman  from    Steuben,  would 
not    prevail.      It  would  be    attended    with  the 
grossest  injustice  to  the  county    of  Richmond, 
which  he  represented  here,  and  he  could  perceive, 
that  he  would  attain  by   it  the  object  which  he 
has  in  view.     In  the  first  place,  if  you  take  Rich- 
mond  from   Kings   and   affix   it  to   Suffolk  and 
Queens,  the  d^/rict  will  still  fall  short  of  the  ra- 
tio, nearly  fcur  thousand,  and   Kings  as  a  district 
will  be  deficient  between  thirteen  and  fourteen 
thousand.    The  object  will  fail  entirely  therefore 
of  producing  the  equalization  which  is  professed- 
ly intended  by  it,  and  if  you  take  the  deficiencies 
of  the  two  districts  together,   they  will  be  found 
to   amount  to  upwards  of  seventeen   thousand. 
Besides,  if  we  adopted  this  amendment,  we  shall 
violate  the  principle  laid  down  by  the  committee 
as  the  one  which  should  govern  in  all  these  cases, 
and  which  they  say  shall  not  be  departed  from — 
namely,  that  the  districts  shall  always  be  formec 
of  continuous  or  contiguous  territory.     Kings  is 
justly  to  be  considered  as  continuous  with  Rich 
mond  county,  as  it  is  the  next  county  and  adjoin- 
ing to  it,  with   only  the  Narrows  interposing  be- 
tween them.    The  connection  therefore  of  Rich- 
mond and  Kings  is  perfectly  natural  and  entirely 
in   accordance  with  the  principle  laid  down  bj 
the  committee,  to  wit,  that  districts  shall  bernad( 
from  contiguous  or  continuous  counties,  butadopi 
the   amendment  and   you  must   either  leap  ov.ei 
Kings,  or  pass  along  its  shore   on  one  side  of  the 
whole  county  to  arrive  at  Queens— for  the  neares 
point  of  that  county  is  at  least  twelve  or  fourteen 
miles     distant     from    Richmond.      Again,    the 
people  of  Richmond  have  but  little,  perhaps   h< 
might  say  no  intercourse    with  the    citizens   o 
Queens  and   Suffolk,  and   no  knowledge  or  ac 
quaintance    with  either — and,    in    that    respec 
we  might  almost  as  well  be  associated  with  Erie 
or  the   county  so  ably  represented   by  yourself 
With  the  people  of  Kings  we  have  been  associa 
ted  in  a  Congressional  district  for  several  year 


nd  will  it  not  be  better  for  the  two  to  be  asso- 
iated  still  in  the  senatorial  district  about  to  be 
ramed,  as  our  interests  are  more  identical  and 
ur  acquaintance  and  intercourse  much  more  fa- 
miliar than  it  ever  can  be  with  Suffolk  or  Queens  ? 
IVlr.  BERGEN  said  he  could  noi  without  doing 
njustice  to  the  county  he  represented,  let  the 
t  marks  of  the  gentleman  from  Richmond  (Mr. 
IARRIS-ON)  pass  unnoticed.  In  reply  to  his 
issertiun  that  the  counties  of  Richmond  and 
£intrs  were  contiguous,  he  would  say  that  the 
gentleman  was  mistaken;  they  were  far  from  be- 
ng  united,  for  they  were  separated  by  a  broad  ex. 
>an?e  of  water,  an  arm  of  the  sea  navigated  by 
,he  largest  class  of  vessels.  If  this  was  contigu- 
ty,  then  he  knew  not  what  contiguity  was.  Heap- 
)roved  of  the  amendment  offered  by  the  commitiee 
hrough  the  gentleman  from  Steuben  (Mr.  CAMP- 
BELL, jr.)  It  was  nothing  more  than  what  they, 
)n  a  re-examination,  had  corne  to  the  conclusion 
:h:it  justice  demanded.  Richmond,  might  with- 
out impropriety,  be  said  to  have  the  same  kind 
f  contiguity  with  Queens  and  Suffolk  as  with 
Kings.  A  water  communication  connected  her 
with  them  all.  There  was  very  little  commu- 
nication between  Kings  and  Richmond,  no  ferries, 
no  mercantile  or  other  business  transitions  to 
bring,  the  inhabitants  in  contact,  consequently 
hey  were  generally  s\  caking,  complete  strangers 
to  each  other  He,  himself,  all  hough  a  native  of 
Kings,  and  for  the  last  seventeen  years  a  resident 
m  the  borders  of  the  bay  immediately  opposite 
he  quarantine  ground,  was  not  personally  ac- 
quainted with  more  than  about  20  individuals 
residing  in  Richmond,  He  supposed  that  few 
n  his  county  were  as  extensively  acquainted  as 
he  was,  and  he  was  also  satisfi  d  that  the  great 
mass  had  not  a  solitary  acquaintance  there. — 
If  Richmond  had  any  natural  connection  at  all 
/vitli  any  part  of  the  State,  it  was  with  the  City 
of  N.  York,  for  there  were  regular  passengers  be- 
tween the  two  places,  boats  running,  if  he  was  not 
mistaken,  every  half  hour.  Many  of  the  citizens 
of  New  York  also,  had  their  country  seats  and  vil- 
las on  her  elevated  heights.  Nature  however  in- 
tended her  for  a  part  of  New  Jersey,  from  which 
she  is  separated  in  many  places  by  only  a  narrow 
stream.  He  did  not  recommend  her  secession, 
having  too  much  regard  for  his  friend,  and  the 
respectable  inhabitants  of  that  county,  to  be  wil- 
ling to  see  them  entirely  cut  off  from  the  Empire 
State.  The  last  census  showed  a  decrease  in  the 
population  of  Richmond,  an  increase  of  about  1-2 
per  cent  in  that  of  Queens,  and  3-4  per  cent  in 
that  of  Suffolk,  for  the  past  5  years.  Their  popu- 
lation thus  appears  to  be  mainly  stationary.  By 
placing  them  in  one  district,  they  -would  have  no 
just  cause  for  complaint,  their  united  representa- 
tive population  being  71,070,  which  is  3,915  less 
than  the  ratio.  It  would  also  reduce  the  fractions 
in  the  1st  and  2d  district.  Kings  on  the  other 
hand,  in  1845  had  a  representative  population  of 
61,611,  which  is  now  more  than  that  of  Suffolk 
and  Queens  united,  theirs  being  only  r)S/>f)7.  Her 
increase  for  5  years,  preceding  IS  1-3,  was  66  per 
cent,  more  than  double  any  other  portion  of  the 
State.  That  of  the  city  of  New  York  during  tli  e 
same  period,  was  only  19  per  cent.  Ifshe  should 
continue  at  the  same  rate  for  the  next  'lO 
years  as  she  has  for  the  past,  her  represen- 


422 


tative  population  will  then  be  150,000,  giv- 
ing an  average  during  the  term  of  more  than 
100,000.  If  the  prosperity  of  our  country  conti- 
nues, he  saw  no  reason  to  prevent  this  being  in 
a  great  measure  realized.  From  the  great  num- 
ber of  dwellings  erected,  and  in  process  of  erec- 
tion in  the  city  of  Brooklyn,  and  village  of  Wil- 
liamsburgh,  during  the  past  and  present  year,  he 
was  fully  persuaded,  so  far  no  diminution  of  the 
rate  of  increase  had  taken  place.  If  the  new  cen- 
sus was  taken,  there  would  at  this  moment  be 
found  a  greater  representative  population  in  the 
county  than  the  rates  required.  If  the  probable 
average  until  the  next  censns  was  taken  into  con- 
sideration, she  would  nearly  be  entitled  to  two 
members.  She  requires  however,  but  one,  to  be 
left  as  a  single  district,  if  single  districts  we  are 
to  have.  She  asks  nothing  unreasonable,  nothing 
but  the  justice  which  every  member  of  this  Con- 
vention must  clearly  perceive  she  is  entitled  to. 
No  doubt  Richmond  too,  will  be  fairly  dealt  with. 
With  these  remarks  he  would  submit  the  matter, 
trusting  to  the  good  sense  of  the  committee. 

Mr.  HARRISON :  The  gentleman  from  Kings 
is  mistaken,  notwithstanding  his  reference  to 
the  Red  Book.  The  population  of  Richmond  has 
not  diminished,  and  there  is  an  error  in  the  au- 
thority which  he  consults.  On  the  contrary,  the 
population  of  Richmond,  is  steadily  increasing,and 
has  been  increasing  for  the  last  ten  years,  and  has 
nearly  doubled  since  1830.  Perhaps,  the  increase 
may  not  be  as  great  with  us,  as  in  the  county  of 
Kings — yet  it  has  been  such,  as  to  give  us  quite 
as  strong  a  claim  on  that  score,  as  the  county  of 
Kings,  if  prospective  increase  is  to  be  taken  into 
the  account. 

Mr.  NICHOLAS  thought  this  cross-firing  was 
to  no  purpose,  and  there  was  little  probability 
that  these  districts  will  be  arranged  here  in  com- 
mittee of  the  whole.  He  therefore  moved  to  rise 
and  report,  with  the  purpose  of  moving  after- 
wards to  refer  this  matter  to  a  committee  of  one 
from  each  Senate  district  to  arrange  and  report 
complete. 

The  motion  to  rise  and  report  was  lost. 

Mr.  JORDAN  withdrew  his  amendment. 

The  amendment  of  Mr.  R.  CAMPBELL,  jr.  was 
adopted. 

Mr.  R.  CAMPBELL,  jr.— If  in  order,  Mr. 
CHAIRMAN,  I  now  move  a  reconsideration  of  the 
vote  just  now  taken — as  I  trust  a  little  farther  re- 
flection will  convince  the  Convention  that  it  ought 
to  be  reversed,  and  the  District,  embracing  Rich- 
mond and  Kings,  should  be  left  as  it  is.  There 
was  no  intercourse  by  Richmond  between  the 
counties  of  Suffolk  and  Queens,  while  with 
Kings  it  was  constant.  Richmond  and  Kings  had 
also  for  years  been  connected  as  a  Congressional 
District.  He  believed  it  would  be  doing  violence 
to  the  natural  relations  between  the  counties,  and 
contrary  to  the  feelings  of  his  constituents,  and 
therefore  he  hoped  the  motion  would  not  pre- 
vail. 

Mr.  NICHOLAS  thought  all  would  be  con- 
vinced by  this  time,  that  these  conflicting  interests 
could  not  be  settled  here,  and  he  therefore  moved 
to  pass  over  to  the  7th  section.  Agreed  to. 

And  the  7th  section  was  read,  as  follows  : 
^7.  The    members  of   Assembly  shall  be  apportioned 
among  the  several  counties  of  the  state,  as  nearly  as  may 


be,  according  to  the  number  of  their  respective  inhabitants, 
excluding  aliens,  paupers,  and  persons  of  color  not  taxed, 
and  shall  be  chosen  by  districts.  The  legislature,  at  its  next 
annual  meeting,  shall  divide,  the  several  counties  of  the  State 
into  as  many  districts  as  each  county  respectively  is  now  by 
law  entitled  to  members  of  Assembly,  to  be  called  Assembly 
districts;  and  shall  number  the  same  in  each  county  entitled 
to  more  than  one  member,  from  i.umber  o°ie,  to  the  number 
such  county  is  entitled  to,  members  inclusive,  each  of  which 
districts  shall  choose  one  member  of  Jlssembly.  Each  Jlssem- 
bly  district  shall  at  all  times  contain,  as  nearly  as  may  be,  an 
equal  number  of  inhabitants,  and  shall  consist  of  contiguous 
territory;  and  no  town  or  ward  shall  be  divided  in  the  forma- 
tion of  an  Jlssembly  district,  except  such  town  or  ward  may 
I>K  entitled  to  two  or  more  members-  An  apportionment  of 
members  of  Assembly  shall  be  made  by  the  legislature  at 
its  session  after  the  return  of  every  enumeration;  and 
the  Jlssembly  districts  in  the  several  counties  of  the  State 
shall  be  so  altered  a*  to  conform  in  number  to  the  iaid  appor- 
tionment, and  shall  be  constituted  as  herein  before  directed; 
and  the  apportionment  and  the  districts  shall  remain  unal- 
tered, until  another  enumeration  shall  have  been  taken. — 
Every  county  heretofore  established,  and  separately  or- 
ganized, shall  always  be  entitled  to  one  member  of  the  As- 
sembly; and  no  new  county  shall  hereafter  be  erected,  un- 
less its  population  shall  entitle  it  to  a  member. 

Mr.  CHATFIELD  moved  to  strike  out  in  the 
4th  line  the  word  "  paupers."  Agreed  to. 

He  then  moved  to  strike  out  from  the  word 
"  taxed,"  in  the  4th  line,  down  to  and  including 
the  word  "  members,"  in  the  7th  line. 

Mr.  COOK  moved  as  an  amendment  to  this 
amendment,  to  strike  out  in  the  5th  and  6th  lines, 
the  words,  "  The  Legislature,  at  its  next  annual 
meeting,  shall  divide  the  several  counties  of  the 
State,"  and  insert,  "  The  Board  of  Supervisors  in 
each  of  the  counties  in  this  State  shall,  on  the  first 
Tuesday  in  June  next,  divide  their  counties." 

Mr.  HARRIS  thanked  the  gentleman  from  Sara- 
toga for  his  suggestion.  It  was  a  new  one,  and 
appeared  to  him  to  be  worthy  of  consideration, 
and  struck  him  as  more  favorable  than  any  he  had 
heard.  It  would  greatly  relieve  the  Legislature. 

Mr.  SHEPARD  moved  to  amend,  so  that  the 
apportionment  should  be  made  by  the  Supervisors 
as  soon  as  practicable  after  the  adoption  of  the 
Constitution.  But  this  was  not  now  in  order. — 
He  added  that  it  would  be  a  very  long  and  labo- 
rious process  in  the  city  of  New- York. 

Mr.  CHATFIELD  inquired  if  the  gentleman 
had  prepared  other  matters  of  detail  to  carry  out 
his  plan. 

Mr.  COOK  had  another  amendment  prepared; 
but  it  would  not  be  in  order  now. 

Mr.  CHATFIELD  said  he  should  like  to  know 
how  the  gentleman  proposed  to  establish  the  dis- 
tricts, furnish  proof  of  them,  and  give  them  the 
force  of  law — for  the  proposition  struck  him  as  a 
peculiar  one.  He  was  opposed  to  it  in  toto,  for 
several  reasons.  We  had  already  an  apportion- 
ment for  the  counties,  and  there  was  no  need  of 
incurring  this  additional  expense  of  special  meet- 
ings of  boards  of  supervisors  all  over  the  State. 
But  the  more  serious  objections  were  that  you 
would  get  up  59  gerrymandering  bodies,  to  cut  up 
counties  with  reference  rather  to  party  objects 
than  any  thing  else — that  the  election  of  supervi- 
sors would  turn  on  this  question  of  cutting  up 
counties  so  as  to  procure  certain  party  objects — 
and  instead  of  diminishing  corruption  and  base 
political  conduct  of  men  in  office,  you  would  in 
fact  offer  a  premium  for  it ! 

Mr.  SWACKHAMER  did  not  suppose  this 
proposition  would  be  seriously  entertained — or  he 
should  oppose  it  strenuously.  He  would  only  re- 


423 


mark  now  that  if  gentlemen  supposed  the  people 
favored  the  idea  of  having  as  many 'little  local  le- 
gislatures as  there  were  counties,  they  were  en- 
tirely mistaken.  In  Kings  county  they  were  fair- 
ly ridden  down  with  local  legislation.  Besides, 
there  was  nothing  like  equality  of  representation 
in  the  board  of  supervisors.  One  of  the  five 
towns  in  Kings  (exclusive  of  Brooklyn)  had  a 
population  of  nearly  double  that  of  the  other 
four — and  yet  had  but  one  supervisor  to  their  four. 
This  was  too  important  a  matter  to  be  entrusted 
to  a  little  knot  of  men  elected  for  other  purposes. 
It  was  a  matter  they  had  nothing  to  do*  with,  and 
should  not  have,  if  his  vote  would  prevent  it. 

Mr.  STRONG  had  confidence  in  the  boards  ot 
supervisors,  and  he  did  not  believe  that  any  injus- 
tice would  be  done  by  them.  The  boards  alrea- 
dy settled  the  matter  of  the  equalization  of  taxes, 
and  there  could  be  no  instance  pointed  out  where 
a  board  of  supenisors  had  abused  the  exercise  ol 
that  power  towards  a  minoiity.  He  should  there- 
lore  vote  for  the  amendment. 

Mr.  SWACKHAMER  said  that  he  prefeired 
that  this  matter  should  be  settled  by  the  Legisla- 
ture. There  was  this  advantage — the  whole  Le- 
gislature would  act  upon  the  matter,  and  being  an 
uninterested  body  they  would  be  most  likely  to 
make  an  impartial  arrangement. 

Mr.  TAGGART  proposed  first  to  test  the  ques- 
tion whether  members  of  the  assembly  should  be 
elected  by  sin^e  districts,  by  -adding  to  the  sec- 
tion, "  The  Stale  shall  be  divided  into  128  dis- 
tricts, each  of  which  shall  elect  one  member  of 
Assembly. 

Mr.  CHATFIELD  said  he  would  withdraw  his 
amendmer.'  for  the  present,  for  that  purpose. 

Mr.  CONELY  was  suggesting  an  amendment, 
when 

Mr.  CROOKER  said  that  the  purpose  could  bet- 
ter be  attained,  by  adding  the  word  "single"  be- 
fore districts  in  the  fourth  line,  and  then  by  mov- 
ing to  strike  out  "and  shall  be  elected  by  single 
districts."  Mr.  C.  said  he  should  vote  against  the 
motion,  but  was  willing  to  test  the  question. 

Mr.  TAGGART  assented  to  this  motion  in  lieu 
of  his  own. 

Mr.  CHATFIELD  said  that  there  were  doubts 
as  to  the  propriety  of  this  change,  which  ought 
to  make  us  cautious  before  we  adopt  it.  For 
himself  he  could  not  perceive  what  great  good 
would  be  accomplished  by  it.  It  may  be,  as  said 
by  the  gentleman  from  New- York,  to  correct  the 
action  of  political  parties,  but  he  thought  this 
body  should  bestow  its  time  and  attention  on  no 
matters  of  that  kind.  It  was  not  its  province  to  cor- 
rect the  acts  of  political  partizans.  But  would 
this  matter  accomplish  that  end  ?  Did  gentlemen 
remember  that  notwithstanding  the  counties  were 
divided  into  districts,  there  would  still  remain  a 
great  many  officers  to  be  selected  by  county  con- 
ventions, and  in  all  human  probability  the  nomina 
tion  of  members  would  there  be  settled  not- 
withstanding they  were  to  be  elected  by  districts. 
There  were  to  be  delegations  to  Senatorial  and 
Congressional  Conventions,  nomination  of  She- 
riffs, &c.,  and  a  great  variety  of  officers,  where 
there  was  more  interest  felt  than  in  the  nomina- 
tion for  the  Assembly.  A  county  was  an  iden- 
tity ;  an  individual,— so  far  as  its  interests  were 
represented  on  this  floor.  The  boards  of  Super- 


visors were  charged  with  the  duty  of  legislating 
for  the  whole  county,  in  matters  of  taxation 
and  in  settling  accounts — in  all  of  which  the 
board  acted  as  a  whole.  Why  then  seek  to  dis- 
tract this  identity  of  interests  by  breaking  up  its 
representation  on  this  floor  ?  The  effect  of  the 
representation  coming  here  divided  would  be  to 
cause  the  interests  of  the  county  to  suffer,  as  each 
man  would  hold  himself  responsible  only  to  the 
constituency  of  his  district.  If  the  people  had 
demanded  the  reform,  it  had  never  reached  his 
ears  or  been  brought  to  his  attention.  They  had 
sent  him  no  resolution  on  the  subject,  and  in  his 
county  none  such  was  passed  in  the  Convention 
which  nominated  him,  or  any  other  assembly  he 
had  heard  of  there.  And  if  the  people  had  not 
asked  for  it,  why  seek  to  impose  it  upon  them  ? 
Mr.  C.  urged  that  the  Convention  had  better 
pause  upon  this  matter  and  not  break  up  county 
lines — and  make  mince  meat  of  the  counties 
for  mere  political  ends.  He  thought  he  saw  the 
obj  ect  of  all  this  maneuvering — where  it  tended — 
could  divine  its  origin — and  appreciate  its  object 
— and  so  far  as  he  was  concerned  he  was  not  here 
to  play  second  fiddle  to  any  such  project. 

Mr.  A.  W.  YOUNG  dissented  tiom  the  propo- 
sition of  Mr.  CHATFIELD  that  it  was  riot  the  bu- 
siness of  this  body  to  correct  the  political  action 
of  political  parties.  He  thought  it  was  the  legiti. 
mate  business  of  this  body  in  preparing  a  Consti- 
tution to  guard  against  the  evils  of  such  action  so 
far  as  they  could  consistently  do  it.  The  rights 
of  minorities  were  entitled  to  some  attention,  and 
should  be  represented  on  this  floor.  In  single 
counties  there  was  otten  a  greater  diversity  of  in- 
terest between  the  two  sections  than  there  was  be- 
tween two  adjoining  counties  He  believed,  al- 
though public  opinion  had  not  been  so  unanimous 
in  favor  of  single  assembly  districts,  yet  that  it 
had  been  so  expressed  in  favor  of  the  system,  that  he 
would  hardly  dare  return  to  his  constituents  with- 
out having  at  least  made  an  effort  to  secure  it.— 
He  had  seen  resolutions  in  favor  of  the  system 
adopted  in  several  counties  of  the  State,  although 
he  could  not  say  to  what  extent  the  expression 
had  been  given  throughout  the  State.  And  he 
believed  it  to  be  the  most  equal  way  of  securing 
the  interests  ot  the  people  throughout  the  State* 

Mr.  PERKINS  agreed  that  it  was  the  duty  c  f 
the  Convention  to  guard  against  the  effecfs  of  par- - 
ty  spirit,  as  far  as  possible  in  framing  a  Constitu- 
tion. We  had  already  formed,  without  respect 
to  party,  lines  of  division  through  the  Slate  and 
cut  it  up  into  convenient  locations  of  popula- 
tion and  business.  And  if  we  put  into  the  Con- 
stitution, any  thing,  the  tendency  of  which  is  to 
induce  a  disregard  of  these  municipal  divisions, 
it  was  holding  up  to  supervisors  and  legislators 
an  inducement  to  act  upon  party  principles  in  the 
formation  of  lines  and  divisions  of  counties.  The 
great  evil  he  apprehended  was  involved  in  the 
remote  consequences  which  would  result  from 
the  formation  of  single  districts.  We  should 
have  instead  of  5G  counties  as  now,  within  ten 
years,  a  hundred  counties-,  involving  all  the  ad- 
ditional expense,  &c.— for  a  division  for  political 
purposes,  would  inevitably  lead  to  a  division  for 
county  purposes.  He  considered  the  tendency  of 
small  counties  to  be  to  increase  the  expense  to 
the  people.  Quarrels  in  the  boards  of  supervisors 


424 


in  relation  lo  the  division  ol  districts  would  lead 
to  the  division  of  counties.  And  he  thought  al- 
so it.  would  tend  to  engender  political  feelings  and 
piejudices  in  those  boards.  Mr.  P.  in  conclusion 
expressed  himself  opposed  to  the  division  of 
counties  at  all. 

Mr.  WATERBURY  briefly  expressed  himself 
in  favor  of  leaving  this  matter  to  ihe  boards  of 
superv  isors. 

On  motion  of  Mr.  SWACKHAMER  the  com. 
mittee  rose  and  reported  progress. 

And  then  the  Convention  adjourned. 

Si.  TURDAY,  (45th  day,)  July  25. 
Prayer  by  the  Rev.  Mr.  HITCHCOCK. 
Mr.  DORLON  presented  the  petition  of  cer- 
tain colored  citizens  for  the  extension  to  them  of 
the  Right  of  Suffrage. 

Mr.  MORRIS  moved  that  there  be  no  Afternoon 
Session  to-day.  Agreed  to. 

Mr.  BASCOM  moved  that  afternoon  sessions 
be  dispensed  with  on  every  Saturday.  Agreed  to ; 
44  to  27. 

APPORTIONMENT  &c.  OF  THE  LEGISLATURE. 
The  committee  of  the  whole,  Mr.    PATTER- 
SON in  the  Chair,  resumed  the  consideration  of 
committee  No.  1. 

The  amendment  to  strike  out  the  provision  for 
single  districts,  was  rejected  21  to  50.  So  the 
committee  resolved  that  there  should  be  single 
Assembly  districts. 

Mr.  KENNEDY  moved  to  except  the  city  and 
county  of  New  York.  Lost. 

Mr.  COOK  now  renewed  his  amendment  as  to 
the  division  of  the  districts  by  the  supervisors, 
which  he  offered  yesterday. 

Mr.  CHATFIELD  moved  to  strike  out  the 
words  "  1st  Tuesday  of  June  next,"  and  insert 
"  at  their  next  annual  meeting." 

Mr.  PERKINS  moved  further  to  amend,  so 
that  this  Convention  should  make  the  first  divi- 
sion into  Assembly  districts,  and  that  all  subse- 
que-nt  ones  be  made  by  the  supervisors. 

A  MEMBER :  We  cannot  do  it.  We  have  tried. 
(Laughter.) 

Mr.  PERKINS  :  Then  no  other  body  of  men 
in  the  country  can. 

Mr.  KEMBLE  asked  how  the  supervisors  when 
they  next  met  would  know  if  the  people  had  ac- 
cepted or  rejected  the  new  Constitution  ? 

Mr.  BASCOM  :  In  many  counties  the  annual 
meetings  of  the  supervisors  are  in  October. 

Mr.  KENNEDY  said  that  some  definite  time 
should  be  fixed  for  all;  and  not  say  at  a  next  an- 
nual meeting. 

Mr.  COOK  said  the  Boards  would  not  be  able 
to  tell  at  their  next  meeting,  if  the  Constitution 
had  been  adopted. 

Mr.  STRONG:  Of  course  not;  for  they  meet  in 
October. 

Mr.  RUSSELL :  If  the  counties  now  electing 
more  than  one  member  of  Assembly,  are  to  be 
divided  into  single  Assembly  districts — as  the 
present  judgment  of  the  Convention  pretty  clear- 
ly indicates — the  plan  for  carrying  this  principle 
into  practical  effect,  which  is  proposed  by  the 
honorable  gentleman  from  Saratoga,  (Mr.  COOK) 
is  undoubtedly  the  best.  In  the  opinion  of  Mr. 
R.,  the  reference  of  this  division  of  Assembly 
districts  to  the  next  Legislature,  was  the  worst 


possible  mode.  Experience  has  fully  proved  this 
position.  The  only  duty  of  the  kind  heretofore 
performed  by  the  Legislature,  has  been  the  allot- 
ment of  our  eight  Senate  districts,  and  our  Con- 
gressional districts ;  and  he  would  ask  members, 
if,  in  this  limited  exercise  of  log-rolling  power 
by  legislators,  in  fixing  boundaries  of  local  con- 
stituencies, great  abuses  had  not  been  committed 
at  every  periodical  change  of  districts?  Well 
founded  complaints  had  arisen  from  many  sections 
of  the  State.  Besides,  the  next  Legislature  would 
be  compelled  to  hold  a  six  months'  session,  to 
discharge  the  indispensable  duties  imposed  upon 
it  by  the  new  Constitution,  in  addition  to  ordinary 
legislation.  The  gentleman  from  Saratoga,  to 
avoid  this  great  objection  to  single  Assembly  dis- 
tricts in  large  counties,  proposes  a  safe  and 
practicable  plan,  which,  Mr.  R.  trusted,  would 
be  adopted  by  the  Convention,  if  the  single  dis- 
trict plan  should  be  carried  into  effect.  The 
Convention  would  then  declare  the  principle  that 
large  counties  should  be  divided  into  separate  dis- 
tricts for  election  of  members  of  Assembly,  and 
that  the  local  representatives  of  the  several 
towns  of  such  counties  should  be  a  body  to  fix  the 
boundaries  of  such  districts,  to  comprise  contigu- 
ous convenient  territory,  and  as  nearly  as  practi- 
cable, without  dividing  town  lines,  equal  repre- 
sentative population.  Mr.  R.  was  forcibly  im- 
pressed with  the  idea  that  the  Boards  of  Su- 
pervisors of  these  counties  were  the  best  and 
safest  class  of  public  officers  who  could  be 
selected  to  carry  out  this  provision  of  the  new 
constitution.  Some  gentlemen  object  that  this 
plan  confers  legislative  powers  upon  the  boards 
jf  Supervisors,  touching  upon  rights  of  the  Legis- 
lature ;  and  others,  that  the  people  are  unequally 
represented  by  these  Supervisors  of  towns. — 
These  objections  were  of  no  moment,  if  the  duty 
could  be  better  performed  than  by  the  Legisla- 
ture. How  could  128  members  of  Assembly  and 
32  Senators  have  the  necessary  practical  infor- 
mation to  determine  the  most  equal,  convenient, 
and  judicious  divisions  of  these  counties  ?  Shall 
the  citizens  of  different  sections  of  the  State  be 
compelled  to  come  to  the  Capitol  as  lobby  mem- 
bers to  give  the  requisite  information  ?  or  shall 
the  delegation  from  each  county  dictate  the  divi- 
sion of  the  several  counties?  Probably  a  combi- 
nation of  both  influences  would  prevail.  Lob- 
bies would  explain,  and  members  would  dictate 
for  their  own  counties,  until  a  majority  of  the 
members  of  the  whole  Legislature  could  be  log- 
rolled together  upon  a  general  plan,  which  would 
subserve  the  views  of  the  majority,  and  leave  the 
minority  to  console  themselves,  in  the  best  way 
they  could,  for  the  wanton  injuries  inflicted  upon 
their  respective  localities.  Better  far  is  it  to  give 
this  power  of  local  district  division  to  local  au- 
thorities. The  boards  of  supervisors  of  the  coun- 
ties always  comprise  a  fair  representation  of  the 
intelligence,  integrity  and  sound  practical  judg- 
ment, of  the  whole  constituency.  Supervisors  of 
towns  are  selected  as  business  men,  with  a  view 
to  their  duties  in  equalizing  assessments,  and  in 
shielding  the  people  from  excessive  taxation 
growing  out  of  our  poor  laws,  and  other  munici- 
pal regulations.  In  all  our  towns,  the  office  is 
considered  a  highly  honorable  position.  Mr.  R. 
knew  several  gentlemen  in  his  own  section  who 


425 


had  accepted  this  office,  but  who  would  not   ac- 
cept the  office    f  member  of  Assembly,  with  all 
its  honors   and   emolument.     He  presumed   this 
remark  would  apply  to   other  sections.     But  the 
strongest    argument    for    committing    this  duty 
to  the  Boards  of  Supervisors,  was,  that  these  bo- 
dies possessed  the  superior  knowledge  of  locali- 
ties, their  convenience  and  general   interests. — 
Suppose  this  Convention  were  to  divide  the  coun- 
ties into  districts.     Mr.  R.  did  not  doubt  that  the 
judgment   of  the  three   members  from    St.  Law- 
rence would  dictate   the  division  of  that  county 
into  its  three  districts ;  but  he  must  say  the   28 
Supervisors  of  the  county  were  much  more  com- 
petent.    Such  must  be  the  casein  other  counties. 
Mr.   R.    preferred  that  the  present  Supervisors 
should  make  these  Assembly  districts.     He  did 
not  like  to  throw  such  a  bone  of  political  contest 
into   the  next  town  elections.     Restless  politi- 
cians, ambitious  of  being  returned  to  the  Assem- 
bly, might  be  stirred  up  to  patriotic  exertions  to 
influence  the  constitution  of  the  Boards  of  Super- 
visors.    It  was  a  new  exercise  by  the  towns,  and 
public  attention  might  not,   in  its  first  exercise, 
be  sufficiently  drawn  toward  improper  influences 
in  the  next  town  elections.     He  had  no  doubt  the 
•existing  Boards  of  Supervisors  would  perform  the 
•duty  wisely  and  honorably.     In   his  own  county, 
he   felt  satisfied   his  plan   would   best  suit  the 
opinions  of  his  constituents.     So  far  as  his  expe- 
rience extended,  Supervisors  of  towns  always  act 
under  a  strong  sense  of  responsibility  to  the  judg- 
ments and  interests  of  their  constituents.     The] 
certainly  have  superior  knowledge  of  the  subjec 
entrusted  tc  them,   and  this   new  and  importan 
power  would   impose  upon   these  local  Boards  a 
high   obligation  to   execute  it  faithfully.     The 
would  do  so.     He  concluded  by  saying  that  the 
Convention  were  under   obligation  to  the  gentle 
man   from  Saratoga  for  presenting  this  safe  prac 
tical  plan,  and  hoped  it  would  be  adopted  as  par 
of  the  single  district  system. 

Mr.  (JhA'IKiLLD  modified  his  amendment 
thai  (l;e  division  should  be  on  the  l-.t  ot  January 
Mr.  CROOKER  asked  him  to  modiiy  his -amend 
mem,  so  that  the  division  should  be  made  be 
twe»Mi  Ihe  first  oi  DfCAtttfeef  and  l..st  of  January 
This  would  sj.ive  some  counties  the  expense  <>f 
special  meeting.  Two  or  three  sensible  men  get 
ting  together,  with  honest  purposes,  could  soo 
dis:nci  a  couniy.  He  would  undertake  to  hav 
Cmtaiaugus  fairly  districted  in  30  mmuies  by  th 
watch. 

Mr.  MANN  did  n<-t  want  this  laid  over  to  th 
next  board  of  supervisor*;  for  if  it  was,  it  woul 
produce  much  lo^.rul.ing,  and  not  a  little  corruj 
political  scrambling. 

Mr.  MILLER  wanted  to  have  it  laid  over  t 
the  next  b->ard  of  supervisors.  He  wanted  then 
elected  with  this  verv  object  of  distnctit  e  th 
State. 

Mr.  SHAVER  said  he  thought  the  reasons  urg» 
by  t tie  gentleman  from  Coril.tnd  (Mr  MILLER 
lor  postponing  the  division  of  the  Hate  into  a 
st-mbly  district,  until  a  new  board  of  supfrvi»o 
should  be  elected,  woie  the  very  reasons  why  th 
division  should  be  made  by  the  present  boards. — 
The  present  supervisors  had  been  elected  with 
reference  to  political  considerations,  and  for  tr 
most  part  on  account  of  the  fi'nesa  to  distharg 

29 


e  duties  ot  that  office  There  would  be  great 
inger  if  this  question  should  be  referred  to  a 
ard  of  supervisors  to  be  hereafter  elected  that  a 
evv  element  of  party  strife  would  be  infused  into 
ic  election.  He  believed  the  present  boards  of 
ipervisors  fully  compelent  to  discharge  this  inc- 
:n-tant  duty  with  jus'ice  and  impartiality  and  to 
le  entire  satisfaction  of  the  community. — 
he  gentleman  from  St.  Lawrence,  (Mr.  PER- 
INS)  has  referred  to  evils  arising  from  the  ap- 
ointment  of  Justices  of  the  Peace  by  the  Board 
Supervisors.  But  that  evil  was  the  result  of 
onnecting  with  the  supervisors  in  making  such 
Dpointments — the  county  judges,  officers  deriv- 
ig  their  authority  from  the  central  power  of  the 
ate,  and  who  had  received  the  office  as  a  reward 
ir  political  services.  It  was  because  the  will  of 
le  people  as  expressed  by  their  representatives 
n  the  board  of  supervisors,  was  often  over-ruled 
y  these  county  judges,  that  that  mode  of  ap- 
ointment  became  odious.  For  these  reasons,  Mr. 
.  said  he  should  vote  to  have  the  Assembly  dis- 
ricts  made  by  the  present  board  of  supervisors. 
Mr.  BERGEN  objected  to  the  doctrine  present- 
d  by  the  gentleman  from  Albany  (Mr.  SHAVER.) 
According  to  his  (Mr.BERGEN's)  belief  the  Boards 
f  Supervisors  were  elected  with  reference  to  po- 
itical  views.  At  all  events,  it  was  generally  so 
n  the  southern  part  of  the  State — 

The  member  from  Albany  explained. 

Mr.  B,  repeated  they  were  in  general,  elected 
,vith  particular  reference  to  political  views.  Ex- 
eptions were  rare.  He  believed  the  committee 
tfould  concur  with  him  in  this  view.  Their  pu- 
•ity,  patriotism,  and  capacity  he  would  not  ques- 
ion.  He  would  not  object  to  them  on  these 
grounds,  but  on  an  entirely  different  one — 

He  was  called  to  order  by  a  member. 

The  CHAIR  stated  that  the  question  was  not 
on  authorizing  the  Board  of  Supervisors  to  di- 
vide the  counties,  but  on  fixing  the  time. 

Mr  B.  stated  he  had  no  intention  or  desire  to 
depart  from  the  question  before  the  committee. 
He  supposed  he  was  only  taking  the  same  lati- 
tude which  others  had.  Under  the  circumstances 
he  would  take  some  other  opportunity  of  expres- 
sing his  views  upon  the  point  on  which  he  had 
been  interupted.  Before  taking  his  seat  he  would 
however  state,  that  if  it  should  be  determined  that 
the  Board  of  Supervisors  should  perform  this 
duty,  he  had  no  objections  to  the  amendment  it- 
self under  consideration. 

Mr.  FORSYTH  wanted  the  work  done  by  the 
present  Board  of  Supervisors ;  if  it  is  turned  over 
to  the  next  Board,  political  considerations  will 
enter  into  the  elections  of  those  men,  who  are 
now  supported  for  many  other  reasons  than  their 
political  views.  He  hoped  therefore,  that  Janu- 
ary instead  of  June,  would  he  inserted  as  the  time 
when  the  Supervisors  should  district  the  same. 

Mr.  COOK  accepted  Mr.  CHATFIELD'S  amend- 
ment to  have  it  on  the  1st  of  January. 

Mr.  KIRKLAND  hoped  he  would  withdraw 
that.  The  votes  for  the  Constitution  would  be 
counted  in  December,  and  the  Constitution  if 
adopted,  would  go  into  effect  on  the  1st  of  April. 
Mr.  CONELY  moved  to  amend  so  that  the  di- 
vision should  be  made  on  or  before  the  1st  of 
April  next.  Lost. 


426 


Mr.  JONES  moved  that  the  first  apportionment 
be  made  by  this  Convention. 
Mr.   RICHMOND:  Let  us 
alike — at  one  time;  there  are  no  elections  for  Su- 
pervisors in  January ;  but  there  are   some  in  Feb- 
uary,  March,  April  and  May ;  so  they  would  have 
part  new  boards  and  part  old  boards,  to  do  it,  if 
it  was  postponed  over  January. 

Mr.  BASCOM  wanted  this  done  as  soon  as 
possible — and  should  move  when  in  order  to  that 
effect. 

Mr.  CONELY'S  amendment  was  lost. 
Mr.  JONES  then  renewed  his  amendment. — 
He  wanted  the  Convention  to  make  the  Assembly 
districts  and  not  the  Board  of  Supervisors  or  the 
Legislature.  Many  of  the  Boards  of  Supervisors 
are  elected  on  political  grounds ;  and  their  duties 
should  be  strictly  of  a  county  nature,  and  not  of  a 
State  character.  They  were  all  there  as  an  inde- 
pendent body  of  public  men,  each  one  acting  on 
the  responsibility  of  his  own  character  and  his 
duty  to  his  constituents.  No  party  feeling  exist- 
ed in  the  Convention,  and  they  could  district  the 
State  more  fairly  than  any  other  body. 

Mr.  RHOADES  said  that  the  object  of  the 
amendment  offered  by  the  gentleman  from  New 
York  (Mr.  JONES)  was  to  defeat  the  principles  of 
the   amendment  of  the  gentleman  from  Saratoga 
(Mr.  COOK)   which  refers  this  matter  of  the  di- 
vision of  the  several  counties,  into  assembly  dis- 
tricts to  the  boards  of  supervisors.    To  this  amend- 
ment therefore  he  was  opposed.     Mr.  R.  said  that 
he  was  astonished  at  the  ground  taken  by  some  of 
the  gentlemen  who  have  opposed  the  plan  of  re- 
ference to  the  boards  of  supervisors.     It  was  but 
the  other  day  that  these  same  gentlemen  were  for 
bringing  every  thing  as  near  to  the  people  as  pos- 
sible.    According  to  their  then  doctrines  the  peo- 
ple had  all  the  honesty,  all  the  integrity  and  all 
the   patriotism — qualities,  which  from  the  scope 
of  their  arguments  were  never  to  be  found  in  the 
people's  representatives !     Now,  when   a  great 
question  of  vital  importance — the  mode  in  which 
their  immediate  representatives  were  to  be  ap- 
portioned and  elected — the  people  were  not  to  be 
trusted,  and  when  a  proposition   that  the  boards 
of   supervisors    of    each    county    elected    with 
special  reference  to  the  division  of  the  county 
into  single  assembly  districts,  shall  be   entrus- 
ted to  perform    that  duty,    is  before  us,  they 
oppose  it  on  the  ground  that  fraud  and  corrup- 
tion,  a  system  of   log-rolling  and  party  spirit 
will    be    carried  into  the   town    elections,  and 
will    influence    the  conduct    of   the  boards   of 
supervisors.     It  was  but  yesieidjy  that  his  friend 
from    Kings,     (Mr.    SWACKHAMER)    was    kind 
enough  to   admonish  him,  (Mi.  R.)   (while  advo. 
eating  the  election   of  Senators,   one  halt  in  one 
year,  and  the  other    half  the  nex',)  that    iie  had 
gone  off   from    the    true  democratic  track    and 
evinced  a  distrust  of  the  people  in  not  subini.tmg 
the  election  of  the  whole  feenate  to  ihem.at  ihesarm 
time,  and   his  f«iend  very  kindly  offered  to   turn 
the  switch  and  thus  get  him  right   again      Now, 
to-day,    the  same    gentleman  dare    not  trust  the 
peopie  to  elect  their  board  of  supemsois  to  per 
form  the   duty  proposed  by  the    gentleman  fn-m 
Saratoga,   because  of  its  absurdity,   and  txposuit 
to  corrupt  practices.     Mr.  R.  said  there  was  ont 
class  of  our    constituents   that  be  bad    no  doubt 


would  oppose   the   amendment  of  the  gentleman 
from  Saratoga,  but  they  were  a  small  number  corn- 
have   it  done  all    pared  with  the  vast  portion    who  would  approve 
it.     That  class  w<;re  those  persons  who  expected 
to  live  on  the  avails  of  office.       They  were  parti- 
zan    leaders— spoil  hunters,  who    were   always 
alarmed    when    party    discipline  and    party    or- 
ganization   were  likely   to  be  disturbed.      They 
were    devoted    to  the   principle   of    helping    up 
and    maintaini.jg|4a    powerful    central    influence 
at    the    capital — it     was    from    this    that    thej 
derived  all  the  political  consequence  with  which 
they -were    invested.       They    wished    all    po- 
litical   action  to  originate    at    Albany    or  wher- 
ever   the   capital   of  your   State   was   located. — 
Now  he  hoped  his  friend  did   not   represent  that 
class — he  hoped  they   had  no  representation  on 
i his  floor.     The  gentleman  from  New  York    had 
said  that  the  members  of  Assembly  were  Slate  of- 
ficers, and  therefore   this  measure   of  districting 
the  State  should  be  done  by  the  representatives  of 
the  whole  Stale  in  a  body — that  the  boards  of  su- 
pervisors  were  too  local  in  their  character  to    be 
entrusted  with  State  interests.     If  the  gentlenran 
from   New  York  will   examine,  he  will  see   that 
these  are  man  subjects  in  which  the  interests  of 
the  whole  State  are  involved,  which  are   referred 
lo  the   boards  of  supervisors — the  assessments  of 
direct   taxes — the  appointment   of  county  super- 
intendents of  schools,  and  other  matters  in  which- 
the   State  at  large  are    interested.      Powers   and 
duties  had  been  very  often  devolved    by  the  legis. 
lature   on  the  boards  of  supervisors  in  which  the 
whole  State  were  interested      Now  it  was  for  the 
very  reason  of  their  better  acquaintance  with  the 
localities  from  which  the  members  come,  that:    he 
(Mr.  R.)  was  in  favor  of  the  proposition       This 
body  was  not  sufficiently  acquainted  with  the  situ- 
ation of  the   different  counties   of  this   Slate  to 
make  a  proper  division.     What  does  the  Riembo? 
from  New  York  mean  about  the    propriety  oi  the 
district  arrangements   of   Cattaraugus,   of  Chao- 
tauque   and    St.  Lawrence  ?      We    were   elected 
and   sent  here  for  the  purpose   of  providing    in 
the    Constitution    for    the    division    ot  the  State 
into    single   Assembly   districts,    but    not  our- 
selves to  perform  that  duty.     Mr.   R.   said   he 
did  not  believe   there  was  a  single  member  here, 
except  from  the  cities,   who  had   ever  looked  at 
his  county  with  a  view  to   the  manner   it  should 
be  cut  up   into  Assembly  districts,  or  had  taken 
the  pains  to  learn   the  wishes  of  his  constituents 
on  that  subject.     The  gentleman  from  New- York 
(Mr.  JONES,)  says  this  is  a  measure  which  must 
involve  questions  of  a  political  and  party  charac- 
ter, and  if  the  division   is  done   by   the  several 
counties,attempts  will  be  made  to  secure  the  pre- 
dominance of  party  by  these  divisions.     He  there- 
fore thought  that  it  should  be   done  here.     The 
gentleman  has  congratulated  the  Convention  that 
nothing  of  a  party  character  has  yet  appeared  in 
this  body;  and   that  no  great  political   or  party- 
leader  has  yet  found  himself  with  power  enough 
to  control  any  parties  in  this  Convention — this  is 
true,  and  is  a  source  of  gratification  to  every  one. 
And  it  was  for  the   ve»y  reason  that  he  (Mr.  R.) 
would  desire  to  preserve   the   existing  state   of 
things  in   this  Convention,   that   he  would    not 
make  the  attempt  to  introduce  a  subject  of  action 
acre  which  would  more  or  less  involve  party  con- 


427 

sideration.  He  would  not  have  it  done  by  the  I  whether,  under  such  circumstances,  it  would  be 
Legislature,  because  it  would  then  be  made  the  just  and  equitable  to  leave  the  performance  of 
instrument  of  building  up  and  strengthening  a  this  high  act,  one  in  which  the  interests  of  all 
central  influence.  The  Legislature  would  be  the  people  were  so  deeply  involved,  to  public 
borne  down  by  this  influence  and  by  an  army  of  bodies  thus  constituted  ?  For  one,  he  was  too 
lobby  agents  from  the  different  counties  when  ac-  much  the  friend  of  equnl  rights  to  assent  to  it. — 
ting  on  this  subject,  and  whenever  we  undertook  He  hoped  the  committee  would  never  consent  to 
this  matter,  we  should  soon  find  that  kind  of  in-  it.  He  had  no  objection  to  have  it  done  in  the 
fluence  attempting  to  control  the  action  of  this  counties,  provided  it  was  done  by  agents  selected 
body.  Mr.  R.  said  he  trusted  there  were  strong  by  a  majority  of  the  inhabitants.  If  it  should  be 
reasons  existing  in  the  minds  of  members  here  for  decided  to  have  it  done  in  the  counties,  make  a 
rejecting  the  amendment,  of  the  gentleman  from  provision  for  the  election,  by  a  majority  of  those 
New- York,  and  equally  strong  for  adopting  that  concerned,  of  commissioners  for  the  express  pur- 
of  the  gentleman  from  Saratoga.  pose.  Do  this,  and  all  objections  would  vanish — 

Mr.  MARVIN  said  that  it  being  already  settled   all  would  bow  in  submission  to  the  will  of  the 
how  many  members  there  were  to  be,  there  was   majority. 

no  difficulty  in  making  out  the  districts;  and  he       Mr.  JONES'  motion  was  lost, 
was  in  favor  of  the  Supervisors  doing  that  duty.       Mr.  STETSON  called  for  a  division. 

Mr.  BERGEN  said  under  other  circumstances       The  CHAIR :    To  strike  out  and  insert  are  in- 
he  would  fully  concur   with  the  gentleman   from   divisible. 

New-York,   (Mr.   JONES)  in  believing  that  this       Mr.  BASCOM   moved  to  amend  Mr.  COOK'S 
body  was  one  of  the  most  proper  ones  to  form   amendment  as  follows : 

these  Assembly  districts     He  rejoiced  to  find  po-       Tfae  B<rrf  Qf  s         isors  in  each  of  the  connties  of 
litical  feeling  banished  from  these  walls.     Want   this  Slate  shall  meet  on  the  lst  Tuesday   Of  January 
of  time  to  perform  the  work  induced  him,  how^-J  next,  and  proceed  without  adjournment,  except  from 
ever,  to  vote  against  the  proposed  amendment.—   day  to  day  to  district  the  several  counties. 
If  done  as  proposed,  it  would  produce  much  dis-       Mr.  ANGEL  thought  it  should  be  postponed 
cussion,    the  valuable    time  of  this  Convention   until  after  the  next  annual  meeting.     Some  say 
would  be  wasted,  and  more  important  matters  be   the  present  boards  of  supervisors  should  do  this 
left  undone,  or  otherwise  completed  in  a  hurried   to  prevent  log-rolling,  &c>     The  supervisors  who 
and  imperfect  manner.     So  much  time  having  al-   are  to  perform  this  duty  in  January,  were  elected 
ready  been  wasted  in   entering  on  the   threshold   last  Spring,  without  any  reference  to  this  matter, 
of  the  work,  made  it  necessary  to  economise   the   and  if  they  had  known  that  this   question  was  to 
little  which  was  left  as  much  as  possible.     It  have  been  submitted  to  them,   they  might  have 
would  bp  much  better  to  leave  it  to  the  next  le-   elected  very  different  men.     II  y^ou  let  the  people 
gislature.     He   however  could   not  oppose    the   choose  the  supervisors  next  Spring  to  district  the 
amendment  on  the  ground  assumed  by  the  gen-   State,  they  would  go  to  work  honestly.     He  was 
tleman  from  Onondaga,  (Mr.  RHOADES.)    He  un-   in  favor  of  confiding  this  to  the  people, 
derstood  that  gentleman's  objection  to  be,   that  it       Mr.  TALLMADGE  said  if  they  would  refer 
would  set  the  Convention  above  a  measure,  of  a  this  matter  to  the  members  of  each  county  in  the 
party  and  political  character.     To  be  consistent,   Convention,   they  would  report  the  ratio  of  ap- 
the  gentleman  should  also  condemn  the  division   portionment  and  district  their  counties  by  Mon- 
by  this  Convention   of  the  State  into   Senatoiral   day  morning  next.     He  would  do  so  for  Dutchess. 
districts.     If  there  was  any  thing  leading  to  par-   If  we  cannot  agree   to  this,   let  us   agree  to  refer; 
tizan  action  in  the  one,  there  was  also  in  the  oth-   this  to  the   Board   of  Supervisors ;   for   they  are 
er.     [The  gentleman  from  Onondago  explained.]   honest  men  ;   and  if  we  cannot  agree  to  that,  let 
He   was  also  opposed  to   the  plan  proposed  by    us  agree  to  leave  it  to  the  next  legislature.     But 
the   gentleman   from    Saratoga    [Mr,    COOK.] —   for  Heaven's  sake,  let  us  get  at  some  result,  and 
The    Boards    of   Supervisors    in     the     several   not  be  running  counter  to  each  other  all  the  time, 
counties  were  composed  of  members  represent-   with  diversified  opinions,  and  transacting  or  fi- 
ing    towns   instead    of    population.      [Here   he   nishing  no  business  at  all. 
was  interrupted  by  the  gentleman   from    Clin-       Mr.  BASCOM'S  amendment  was  carried, 
ton,  (Mr.    STETSON)  who  inquired   whether  the       Mr.  STETSON  said  il  the  making  of  single  As- 
gentleman  was   in  order,  in  his  reference   to  the  Uembly  districts  could  be   made  impartially,  and 
Boards  of  Supervisors.     The  CHAIR  stated  it  to   without  gerrymandering,  it  would  be  one  of  the 
be  in  order.]     Although  composed  of  gentlemen    most  valuable  reforms  that  has  been  brought  for- 
of  high  standing   and   character,    yet,  in  conse-   ward  for  half  a  century. 

quence  of  these  boards  being  thus  instituted,  the  Mr.  TALLMADGE  alluded  to  the  confusion 
people  were  very  unequally  represented  in  them.  and  conflicting  views  entertained  by  members, 
This  he  understood  to  be  the  case  throughout  the  and  urged  that  the  time  was  wasted  in  attempt- 
whole  State.  The  present  division  of  the  State  ing  to  renovate  them  here.  He  alluded  to  the 
into  towns,  prevented  the  evil  from  being  past  action  of  the  Convention,  as  showin°-  how- 
altogether  avoided.  To  give  an  instance  of  the  time  was  occupied,  and  urged  that  if  this  course 
inequality,  he  would  refer  to  the  county  of  Kings,  was  to  be  continued,  as  definite  a  result  could  be 
There,  five  towns,  with  a  population  in  round  attained  by  adjourning  over  to  the  end  of  the 
numbers  of  about  9,000,  were  represented  by  five  week.  At  the  instance  of  several  friends  he  said, 
Supervisors— one,  with  a  population  of  about  he  moved  that  it  be  left  to  the  delegates  of  the 
12,000,  with  one  Supervisor,  and  the  city  of  several  counties  to  report  to  the  Convention  a 
Brooklyn,  with  a  population  of  60,000,  by  six  plan  for  the  division  of  their  respective  counties 
Supervisors.  He  would  appeal  to  the  committee  I  Mr,  HARRIS  deprecated  too  frequent  lectures 


428 


of  the  house  by  gentleman,  and  urged  that  the 
question  should  be  taken  now,  without  further 
debate.  The  mind  of  every  member  he  believed 
was  decided  as  to  how  he  should  vote,  and  he  al- 
so believed  that  a  large  majority  of  the  committee 
were  in  favor  of  the  sensible  democratic  principle 
of  having  the  districts  disposed  of  by  the  Board  of 
Supervisors. 

The  question  being  taken,  the  amendment  con- 
ferring the  power  on  the  Board  of  Supervisors, 
was  adopted. 

Mr.  NICOLL  moved  to  strike  out  the  words 
"  or  ward,"  so  as  to  allow  wards  to  be  divided  in 
the  formation  of  Assembly  districts. 

Mr.  CAMBRELENG  :  Why  not  towns  also. 
Mr.  NICOLL  could  only  speak  of  his  own  con- 
stituency. It  would  be  utterly  impossible  to  dis- 
trict the  city  with  any  degree  of  fairness  unless 
the  supervisors  had  the  power  to  divide  the 
wards.  By  reference  to  the  population  of  the 
wards  it  would  be  seen  that  several  of  these  had 
a  population  of  30,000, 27,000,  &c.,  and  were  con- 
stantly increasing,  and  with  a  ratio  of  19,000  how 
was  it  possible  to  give  a  fair  representation  By 
a  combination  of  election  districts  this  might  be 
done  with  perfect  fairness,  and  an  entire  equality 
of  representation  secured. 

After  some  conversation  the  amendment  of  Mr. 
N  was  adopted.  Ayes  66,  nays  not  counted. 

Mr.  SWACKHAMER  said  that  the  objec- 
tions in  relation  to  not  dividing  wards  would  ap- 
ply equally  to  towns.  He  would  therefore  move 
to  strike  out  the  words  "  and  no  town  shall  be 
divided  in  the  formation  of  an  Assembly  district." 
This  was  rejected. 

Mr.  TAGGART  moved  to  amend  so  as  to  read 
"no   town  shall  be   divided,  &c.,  except  such 
town  be  entitled  to  more  than  one  member." 
This  was  also  rejected. 

Mr.  ST.  JOHN  mo^ed  to  strike  out   ail  of  (he 
15th  line  "except such  town  or  ward,  be  entitled 
to  two  or  more  members. 
This  was  carried. 

Mr.  CROOKER  moved  to  add  after  the  wotd 
county  »Mn  as  compact  and  square  a  form  as  pos- 

SEVERAL:  "  Square  form  "     [Laughter.] 

Mr.  CROOKER  said  the  object  was  to  avoid 
gerrymandering;. 

Mr.  PERKINS  suggested  that  it  would  be  im- 
possible to  divide  the  State  into  '•  square  districts." 

Alter  some  further  conversation, 

Mr.  CROOKER  assented  to  striking  out  the 
words  "  square  lorm." 

Messrs  LOOMIS  and  KIRKLAND  opposed  the 
amendment,  briefly  saying  that  it  was  a  matter  to 
be  left  to  the  boards  of  supervisors,  the  restric- 
tions already  provided  being  sufficient,  when  the 
amendment  was  voted  down. 

Mr  CROOKER  had  another  amendment  to 
submit,  which  he  supposed  would  call  out  dis- 
cussion. The  object  was  to  secure  equality  of 
representation.  He  proposed  to  amend  the  7th 
section,  by  inserting  at  the  end  of  the  4th  line— 

The  State  shall  be  divided  into  four  grand  divisions.— 

The  count  es  of shall  constitute  the  Northern  Dm- 

«on  -the  counties  of shall  constitute  the  Southern 

Son;  the  counties  of. :8haUc^^^^ 

divi  ion-  and  the  counties  of -shall  constl  ute  the 

Western  division;  each  division  to  elect  32  Member,  of 
Assembly. 


There  was  between  different  portions  of  the 
State  somewhat  of  a  diversity  of  interests,  and  he 
proposed  an  equal  representation  in  the  legisla- 
tive body. 

Mr.  PERKINS  was  gratified  at  last  to  see  a 
proposition  to  cut  up  and  divide  the  State  into 
Assembly  districts,  according  to  territory. 

Mr.  CROOKER :  Not  according  to  territory, 
but  population. 

Mr.  PERKINS  :  The  gentleman  spoke  of  ter- 
ritory. 

The  question  being  taken,  the  amendment  was 
rejected. 

Mr.  COOK  offered  an  amendment  providing  in 
effect,  that  after  every  apportionment,  the  boards 
'of  Supervisors  should  arrange  the  Assembly  dis- 
tricts, filing  a  description  of  the  same  in  the  of- 
fice of  Secretary  of  State. 

Some  conversation  here  ensued  as  to  whether 
the  amendment  in  its  present  form  secured  the 
object  desired,  when  a  substitute  was  proposed 
by  Mr.  HARRIS,  substantially  embodying  the 
same  principles  as  that  of  Mr.  COOK. 

It  was  adopted,  ayes  51. 

Mr.  STETSON  then  moved  to  substitute  the 
following  for  the  first  lines  of  the  section : 

"  The  members  of  Assembly  shall  be  apportioned 
among  the  several  Assembly  district  counties,  so  that  un- 
represented fractions  shall  be  equal,  as  nearly  as  may  be, 
according  to  the  number  of  their  respective  inhabitants, "&c. 

The  object,  Mr.  S.  stated,  was  to  secure  that 
equality  of  representation  he  had  all  along  been 
contending  for. 

After  some  conversation  the  amendment  was 
voted  down. 

Mr.  HUTCHINSON  moved  to  amend  so  as  to 
provide  that  Fulton  and  Hamilton  should  be  one 
Assembly  district  as  heretofore. 

Mr.  JORDAN  concurred  in  the  opinion  that 
some  amendment  was  needed  to  this  section. 

Mr.  PERKINS  contended  that  Hamilton  coun- 
ty had  been  for  the  last  five  years  perfectly  orga- 
nized as  a  county  and  was  as  much  entitled  to  a 
representation  in  the  Assembly  as  the  city  of 
New-York.  The  only  evidence  against  it  was 
the  census  returns  that  she  did  not  possess  a  suf- 
ficient population,but  that  had  ought  not  to  be  urg- 
ed, he  said,  to  operate  against  the  solemn  acts  of 
legislation.  He  would  not  therefore  deprive 
Hamilton  of  its  vested  rights. 

Mr.  RUGGLE3  said  that  under  the  present 
Constitution,  Hamilton  Co.  was  set  apart  until  its 
population  should  reach  the  requisite  amount.  It 
was  never  organized  until  1838.  As  the  consti- 
tution therefore  now  stands,  Hamilton  was  not 
entitled  to  a  member,  and  the  Convention  would 
ertainly  never  confer  the  right  of  electing  a 
member  on  2000  inhabitants. 

Mr.  HARRIS  was  q  lite  sure  that  in  the  act  or- 
ganizing Hamilton,  it  was  expressly  provided 
that  she  should  not  be  entitled  to  a  representa- 
tion until  she  passed  the  requisite  population. 

Mr.  HUTCHINSON  said  that  if  it  was  the  opin- 
ion of  the  committee  that  Hamilton  was  entitled 
to  a  member,  he  would  withdraw  his  amend- 
ment. 

Mr.  KIRKLAND  renewed  it. 

Mr.  PERKINS  said  that  before  Hamilton  was 
deprived  of  a  right  to  a  member,  it  would  be  well 
to  look  at  the  matter.  In  the  constitution  of  1821 


429 


was  found  this  language—"  The  4th  District 
shall  consist  of  the  counties  of  Saratoga,  Montgo- 
mery, Hamilton,  &c."  Then  afterwards  in  that 
constitution  the  language,  "  Every  county  here- 
after established  and  separately  organized,  shall 
always  be  entitled  to  one  member  of  Assembly, 
and  no  new  county  shall  hereafter  be  erected  un- 
less its  population  shall  entitle  it  to  a  member." 
Mr.  T.  then  urged  that  as  Hamilton  had  been  or- 
ganized as  a  county,  to  all  effects  and  purposes, 
except  the  right  of  electing  a  representative— 
that  therefore  she  was  entitled  to  one  now,  or  else 
there  had  been  a  violation  of  the  Constitution  on 
the  part  of  the  legislature  passing  the  act  for  its 
organization. 

Mr.  RUGGLES  said  that  there  could  be  no 
doubt  about  the  subject.  The  Constitution  ex. 
pressly  provided  that  no  new  county  should  be 
erected  alter  the  adoption  of  that  instrument 
without  possessing  the  requisite  population. — 
And  if  the  Legislature  had  undertaken  to  do  so, 
it  was  certainly  against  the  constitution,  and  an 
act  which  this  Convention  would  not  concur  in. 

Mr.  LOOMS  offered  an  amendment  to  guard 
against  this,  and  it  was  adopted. 

Mr.  BASCOM  offered  the  same  amendment  to 
this  section  as  he  did  to  a  previous  one,  to  the 
effect,  that  if  the  right  of  suffrage  should  be  ex. 
tended  to  persons  of  color,  they  should  then  form 
a  portion  of  the  basis  of  representation. 

This  was  voted  down. 

Mr.  BEKGEN  moved  to  strike  out  the  words 
"excluding  aliens  and  persons  of  color  not  taxed." 

This  was  rejected. 

Mr.  A.W.  YOUNG  moved  to  amend,  so  that 
where  the  bounds  of  any  county  had  been  al. 
tertd  since  the  passage  of  the  apportionment  law 
of  last  winter,  the  appnrtionrnent  of  members 
should  be  made  to  accord  with  such  alteration. — 
This  was  to  meet  the  case  of  Wyoming  county, 
which  in  such  case  would  be  entitled  to  an  addi- 
tional member. 

Messrs.  TAGGART  and  RICHMOND  objected 
to  this,  and  Mr.  A.  W.  YOUNG  uiged  its  adop- 
tion,— when  it  was  voted  down. 

Mr.  HARRIS  proposed  a  substitute  tor  the 
7th  section  embracing  all  the  principles  which 
the  committee  had  agreed  upon. 

Mr.  CHATFIELD. >ffered  another  substitute  for 
the  section.  [In  terms  reporting  all  the  principles 
that  had  boen  adopted  by  the  committee.] 

Mr.  KIRKLAND  said  this  proposed  in  effect 
to  reject  all  that  had  been  done  by  the  committee, 
and  he  hoped  that  the  question  would  be  first  tak- 
en on  it,  and  it  be  voted  down. 

This  was  assented  to  and  the  amendment  of 
Mr.  C.  was  voted  down. 

Mr.  TAGGART  then  offered  a  substitute,  pro- 
viding for  128  Assembly  districts,  without  refer- 
ence to  county  lines.  This  was  also  voted  down. 

There  was  a  general  assent  then  that  the  sec- 
tion should  be  passed  over. 

The  9th  section  was  then  taken  up  as  follows : 

^  9.  The  members  of  the  legislature  shall  receive  for 
their  services  a  comjens.ition  to  be  ascertained  by  law, 
and  paid  out  of  the  public  tte-isury  ;  which  compensation 
shall  not  exceed  the  sum  of  three  dollars  a  day,  and  after 
the  year  1847,  shall  not  exceed  the  sum  of  three  dollars  a 
day  lor  the  period  of  ninety  days  from  the  commencement 
ot  the  session.  Wlien  convened  in  extra  session  by  the 
Governor  they  shall  receive  such  sum  as  shall  be  fixed  for 
the  ordinary  session.  They  shall  also  receive  the  sum  of 


one  dollar  for  every  ten  mi.es  they  shall  travel,  In  going 
to  and  returning  from  th«ir  place  of  mi  eting,  on  the  most 
usual  route.  The  Speaker  of  the  Assembly  shall,  in  vir- 
tue of  his  office,  receive  an  additional  compensation  equal 
to  one-third  of  his  per  diem  as  member. 

Nr.  NICHOLAS  moved  to  strike  out  the  words 
"  which  compensation  shall  not  exceed  the  sum 
of $3  a  day,  and  after  the  year  1847,  shall  not  ex- 
ceed the  sum  of  $3  a  day  for  a  period  of  90  days 
from  the  commencement  of  the  session,"  and  to 
insert,  "the  Legislature  shall  pass  no  law  increas- 
ing the  compensation  of  its  members  beyond  the 
sum  of  $3  a  day." 

Mr.  CROOKER  opposed  the  proposed  reduc- 
tion of  pay.  It  was  not  too  much  now,  and  he 
hoped  it  would  not  be  cut  down  for  the  mere 
sake  of  popularity. 

Mr.  TOWNSEND  urged  the  propriety  of  giv- 
ing the  members  of  the  Assembly  a  stated,  fixed 
Salary.  It  appeared  by  the  reports  called  forth 
from  the  Comptroller's  office,  in  answer  to  a  reso- 
lution from  this  body  that  the  average  amount 
paid  to  each  member  for  the  few  years  last  past 
was  about  $450.  He  was  disposed  to  be  liberal 
in  this  matter,  and  thought  that  about  $500  a 
session  would  be  a  small  enough  compensation. 
This  he  thought  would  be  better  than  limiting  the. 
session — which  might  at  times  render  the  people 
liable  to  a  great  many  inconveniences.  He  should 
when  occasion  occurred  offer  an  amendment  in 
accordance  with  these  suggestions. 

Mr.  SWACKHAMER  moved  to  amend,  so  that 
incase  the  session  should  exceed  90  days,  the 
pay  of  members  thereof  should  only  be  $1,50  each 
per  day. 

Mr.  NICHOLAS  considered  this  a  reflection 
on  the  integrity  of  the  legislature.  Mr.  N.  then 
varied  his  amendment  so  as  merely  to  strike  out 
after  the  words  "  $3  a  day."  Mr.  N.  considered 
that  there  was  a  principle  involved  in  this  ques- 
tion which  should  be  discussed.  He  moved 
that  the  committee  rise  and  report  progress. 

This  was  agreed  to,  and  the  Convention  ad- 
journed. 

MONDAY,  (4Gth  day,)  July  27. 

Prayer  by  Rev.  Mr.  KIP. 

Mr.  WARD,  from  the  committee  on  rules,  re- 
ported a  rule  that  the  previous  question  might 
apply  to  any  particular  section  without  affecting 
the  whole  report.  This  was  adopted. 

Mr.  CHATFIELD  moved  that  so  much  of  sec- 
tion No.  5,  of  the  report  of  committee  No.  1,  as 
relates  to  the  apportionment  of  senators  be  refer- 
red to  a  select  committee  of  two  from  each  senate 

Mr  CROOKER  moved  to  strike  out  "  select" 
and  insert  "  committee  No.  1."  He  was  opposed 
to  having  this  matter  referred  to  a  select  commit- 
tee at  this  *ime  of  day.  There  was  both  difficulty 
and  danger  in  it. 

Mr.  DANA  :  Have  they  not  already  done  that 
duty  :  committee  No.  1  ? 

Mr.  JONES  hoped  the  gentleman  from  Otsego 
(Mr  CHATFIELD)  would  allow  his  resolution  to 
lie  on  the  table  for  a  day  or  two,  as  a  motion  to 
reconsider  the  vote  on  the  number  of  senators 
would  be  probably  made  in  a  day  or  two. 

Mr  CHATFIELD  did  not  distrust  either  the 
ability  or  the  willingness  of  committee  No.  1 ,  but 


430 


he  desired  that  every  part  of  the  State  may  be 
represented  in  the  committee  making  the  appor- 
tionment. 

Mr.  PATTERSON  said.it  would  be  idle  and 
useless  to  fix  the  senate  districts,  until  they  had 
decided  definitely  on  the  number  of  senators  they 
intended  to  have. 

Mr.  KIRKLAND  said  (hat  three  separate  prop- 
ositions had  been  settlpd  by  three  strong  votes 
here;  viz: — the  number  of  senators — the  term  of 
Senators — and  the  question  of  single  districts.— 
He  hoped  that  no  atempt  would  now  be  made  to 
alter  either  of  these  three,  after  the  very  decided 
votes  that  have  been  had  here  upon  them.  There 
is  no  necesaiiy  for  sending  this  to  a  select  com- 
mittee. If  votes  decided  hete  by  twenty  or  forty 
majority  are  to  stand,  then  all  this  opposition  is  a 
waste  of  time,  and  worse  than  useless.  He  be- 
lieved that  there  was  hut  about  four  or  five  Sen- 
ate districts  in  the  report  of  the  committee  to 
which  there  had  been  any  objection  made;  and 
that  nutter  could  soon  be  settled  in  committee  of 
the  whole.  And  therefore  it  was  of  no  use  to 
refer  this  matler  at  this  late  period,  back  to  com- 
mittee No.  1,  or  to  refer  it  to  a  select  committee 
of  any  kind,  He  hoped  therefore  that  the  motion 
to  strike  out  would  not  prevail. 

Mr.  JORDAN  agreed  with  Mr.  KIRKLAND,  in 
the  main,  but  he  did  not  agree  with  him  in  some 
of  his  results.  It  was  proposed  to  send  this  back 
to  committee  No.  1 ,  for  them  to  revise  their  own 
proceedings.  Now  it  seemed  to  be  a  settled 
point  that  this  Convention  was  to  district  and  ap- 
portion the  State.  Then  why  send  this  matter 
back  to  a  select  committee,  or  to  committee  No. 
1  ?  There  are  but  two  or  three  districts,  it  is 
true,  about  which  there  would  primarily  be  any 
trouble  ;  but  the  fact  was,  that  in  re-organizing 
those  two  or  three,  it  would  become  necessary  to 
alter  several  others,  in  all  of  which  probably 
there  wrould  be  a  great  deal  of  trouble.  Now  he 
(Mr.  J.)  considered  that  the  whole  body  of  mem- 
bers was  perfectly  competent  to  the  task,  and  he, 
for  one,  was  forgoing  directly  into  that  work,  ei- 
ther in  Convention  or  in  committee  of  the  whole 
and  finishing  it  up.  Let  there  be  no  more  delay 
about  it.  There  must  be  some  trouble,  in  any 
cause.  And  all  who  took  the  trouble  to  overlook 
the  matter  carefully,  would  see  the  difficulty. — 
But  they  had  got  the  work  to  do  at  last,  and  unless 
that  committee  could  so  re-arrange  the  districts 
as  to  do  away  with  all  possible  objections  from 
all  quarters,  it  was  idle  to  talk  about  re-referring 
the  matter  to  them.  The  Convention  had  got  the 
matter  before  them,  and  they  might  as  well  grapple 
with  it  first  as  last.  That  they  were  to  adhere  to 
the  plan  of  single  districts,  he  sincerely  hoped 
But  as  for  equalizing  them,  or  making  them  sat 
isfactory  to  all  parts  of  the  State — that  was  en 
tirely  out  of  the  question.  Therefore  they  hac 
better  go  right  to  work,  and  make  the  fairest  anc 
best  apportionment  that  they  possibly  could. 

Mr.  (JROOKER  said  that  it  this  must  pass,   h 
wanted  it  to  pass  in   the  leas'  objectionable  form 
that  was  possible. 

Mr.  CHATFIELD  said  that  it  had  been  whim- 
pered about  that  \h\sprofet  for  a  select  commit 
tee  was  to  be  voted  down  ;  because  if  it  was  not 
he  (Mr.  C  )  would,  as  a  matter  of  course,  be  pu 
at  the  head  of  it,  and  he  would  gerrymander  lh< 


tate.  (Laughter.)  He  therefore  fell  it  due  to 
imself  to  slate  that  if  such  a  committee  should 
e  raised,  under  no  circumstances  could  or  would 
ie  consent  to  serve  on  it,  At  the  same  lime  he 
onsidered  this  a  highly  insulting  couise  to  sup. 
iose  that  16  honorable  gentlemen  of  this  body 
ould  so  far  forget  themselves  as  to  consent  to  cut 
p  the  State  into  unfair  districts  for  selfish  pur- 
IOSFS  ;  and  he  regretted  sincerely  that  any  such 
mproper  remarks  should  ever  have  been  made. — 
The  only  object  he  (Mr.  C  )  had  in  view,  was 
hat  of  doing  justice  to  the  whole  State.  To 
•qualize  the  districts  as  nearly  as  possible,  and  to 
lo  away  with  the  present  loudly  and  properly 
•omplained  of  inequality.  If  they  attempt  to  do 
his  in  the  House,  a  week  or  two  may  go  over 
hem,  without  their  being  able  to  effect  their 
»bject ;  or  should  they  succeed  at  last,  it  will  be 
done  by  the  force  of  will  and  by  might,  and  not 
iy  right  or  justice.  Much  dissatisfaction  would 
till  exist,  And  the  apportioning  of  the  State 
>ven  if  made  in  the  House  was  not  to  pass  over 
Arithout  a  great  deal  of  discussion.  On  the  other 
land  16  men  would  do  it  properly  and  do  it  fairly  ; 
and  in  much  less  time  than  it  would  be  done  in 
any  other  way ;  and  they  would  be  ready  with 
heir  part  of  the  work,  by  the  time  that  the  Con- 
tention had  got  through  with  the  other  parts  of  the 
•eport.  The  only  reason  why  he  wished  to  see 
he  matter  take  this  course  was  from  a  sense  of 
ustice  and  with  a  view  to  expedite  the  business 
>f  the  Convention. 

Mr.  MANN  wished  to  have  the  whole  delega- 
ion  of  each  county  consulted  in  this  matter  of 
districting  each  of  the  different  portions  of  the 
State. 

Mr.  JORDAN  rose  to  protest  against  the  first 
dawning  of  an  intimation  to  cut  the  county  of 
Columbia  in  two,  for  the  benefit  of  Dutchess  and 
Rensselaer.  The  gentleman  from  Otsego  (Mr. 
CHATFIELD)  wanted  to  have  this  matter  settled 
a  committee  of  16.  Now  he  (Mr.  J.)  had 
bad  some  experience  on  a  large  committee. 
And  under  that  experience  he  felt  bound  to  state 
that  if  there  was  anything  that  would  produce  a 
want  of  agreement  it  would  be  a  large  committee 
of  some  16  members.  Three  men  were  much 
more  likely  to  agree  quickly  if  they  were  to  sit 
down  with  fair  intentions  and  to  go  into  the  cal- 
culations and  examine  the  districts  with  the  aid 
of  the  map  and  the  census  tables,  that  had  been 
furnished.  He  (Mr.  J.)  had  himself  sat  down 
and  deliberately  and  carefully  gone  all  over  the 
State,  to  see  if  he  could  possibly  devise  any  better 
arrangement  of  the  districts  than  that,  which  had 
been  presented  to  them ;  and  by  the  exercise  of 
all  the  patience,  industry,  calculation  and  infor- 
mation which  he  could  possibly  bring  to  bear  on 
the  subjeet,he  could  not  succeed  in  making  an  ap- 
portionment approximating  very  near  to  equality. 
He  began  at  the  lower  end  of  the  State— Suffolk 
and  Queens — and  he  found  he  could  get  along  tol- 
erably for  some  distance  ;  but  when  became  up 
to  the  centre  of  the  State— to  Ontario,  Oneida, 
Genessee,  &c. — he  found  that  he  could  not  get 
along  very  well.  He  then  began  at  the  other 
end — at  Cattaraugus  and  Chautauque — and  before 
he  got  into  the  centre  of  the  State,  he  found  him- 
self .in  the  same  difficulty  again.  He  then  be 
gan  in  the  centre,  to  try  and  see  if  h 


431 


could  not  biai  ch  oft  right  and  left,  in  some  way, 
different  from  the  arrangement  of  the  committee 
so  as  to  remove  the  inequalities  cmnplaimd  of; 
and  hf  found  that  it  was  utterly  impossible  to  do 
it  without  making  other  and  greater  inequali 
ties,  unless  counties  were  divided.  There  is  not  an 
inti'llect  in  the  State  that  can  do  it,  because  it  is  not 
a  mere  matter  of  calculation  and  figures.  It  yields 
to  nothing  butcornbinations  of  localities — and  they 
cannot  be  s<>  combined  as  to  produce  equality.  The 
wisest  men  in  the  stale  could  not  perform  the  task. 
The  wisest  men  in  the  Convention  or  in  the  State, 
could  not  so  divide  the  state  as  not  to  leave  large 
excesses,  or  large  fractional  deficits.  The  injus- 
tice complained  of  (or  to  give  it  a  right  name)  the 
misfortune  must  fall  on  some  few  districts  There 
was  no  possible  help  for  it.  And  since  this  must 
be  the  result,  adopt  what  course  they  might,  the 
best  plan  was  to  take  up  the  subject  and  dispose 
of  if  at  once  in  Convention, — a  reference  would 
produce  a  useless  want  of  time. 

Mr.  WARD  thought  it  would  be  best  to  let  this 
matter  rest  for  a  day  or  two,  in  order  to  give  mem- 
bers more  time  to  reflect  on  this  and  consult  about 
it.  He  therefore  moved  to  lay  Mr.  CHATFIELD'S 
resolution  on  the  table. 

This  was  carried, 

Mr.  CHATFIELD  then  moved  a  reconsidera- 
tion of  the  vote  taken  some  days  since  upon  fill- 
ing the  blank  with  the  number  of  48  Senators. 
He  however,  at  the  suggestion  of  one  of  the  mem- 
bers, withdrew  it,  because  of  the  few  members 
•that  there  were  in  the  House — not  over  70 — he 
wished  to  have  a  full  and  fair  expression  of  sen- 
timent c  n  this  motion  to  reconsider,  when  the 
House  was  full. 

The   House  then  went   into  committee  of  the 
whole,  on  the 
APPORTIONMENT  &c.  OF  THE  LEGISLATURE. 

Mr.  PATTERSON,  in  the  Chair,  said  that  the 
Convention  had  ordered  the  printing  of  the  7th 
section  as  amended,  and  also  the  amendment  of 
the  gentleman  from  Albany,  (Mr.  HARRIS)  but 
(hey  had  not  yet  come  from  the  printers  ;  so  the 
9th  section  would  be  under  consideration. 

The  9th  section  was  then  read : 

^  9.  The  members  of  the  Legislature  shall  receive  for 
their  services  a  compensation,  to  be  ascertained  by  law, 
and  paid  out  of  the  public  treasury,  which  compensation 
shall  not  txcetd  the  sum  of  three  dollars  per  day;  and  after 
the  year  1847,  shall  not  exceed  the  sum  of  three  dollars  pel- 
day,  for  the  period  of  ninety  days  from  the  commencement 
of  ihe  session.  Jl  hen  convened  in  extra  stss>on,  by  the  Go- 
rirnor,  thty  shall  receive  such  sum  as  shall  be  fixedfor  the 
ordinary  session.  They  shall  also  receive  the  swn  of  one  dol. 
larfor  every  ten  miles  they  shall  travel,  in  going  to  and  re- 
turning from  their  place  of  metting,  on  the  niost  usual 
route.  The  ~ 


long  the  session,  lor  the  mere  purpose  of  receiv- 
ing that  sum  They  also  say  indirectly  that  90 
days  is  long  enough  time  Jo  do  all  the  business  in  ; 
and  that  with  these  words  in,  the  members  will 
not  hereaf'er  stay  here  ovei  90  days,  because  if 
they  do,  they  will  only  get  half  pay.  Now  this 
would  be  proceeding  on  a  very  wrong  principle. 
He  would  not  cast  such  an  imputation  upon  the 
representatives  of  the  people  He  would  not  so 
distrust  bis  fellow-citizens;  he  would  not  say  to 
them,  "  we  cannot  trust  you  with  the  paltry  consi- 
deration of  $3  a  day,  in  your  hands  for  fear  it  will 
make  you  corrupt."  He  believed  that  a  very  large 
majority  of  the  people  were  honest,  and  he  believed 
the  same  wish  regard  fo  the  people's  representa- 
tives. Much  complaint  had  been  made  of  the 
great  length  of  the  legislative  sessions.  He  ap- 
prehended it  the  people  had  nothing  to  complain 
of  that  occurred  in  our  Legislative  Halls,  worse 
than  the  mere  length  of  the  sessions,  that  but  lit- 
tle cause  of  complaint  would  exist.  He  called 
upon  gentlemen  to  point  to  a  single  instance 
where  they  believed  a  session  had  been  prolonged, 
even  for  a  day,  for  the  mere  consideration  of  the 
pay  of  members.  After  they  have  got  fairly  into 
their  work  they  have  always  been  found  to  de- 
vote a  sufficient  amount  of  time  to  their  duties; 
and  towards  the  close  ot  the  session,  the  busi- 
ness has  frequently  been  carried  through  with 
a  rush,  derogatory  to  safety  in  legislation. — 
True,  there  was  much  unnecessary  legislation; 
but  there  never  had  been  so  much  as  the  people 
or  portions  of  them,  had  called  on  their  particu- 
lar representatives  for  at  any  one  session-  A  vast 
amount  ot  legislation  had  been  called  for  at  every 
session,  by  particular  constituencies,  which  had 
never  been  acted  on.  And  here  is  the  mistake 
made  by  those  who  cry  out  against  the  length  of 
the  sessions.  There  has  been  too  much  of  this 
local  legislation — there  has  been  too  much  of  it 
with  regard  to  municipal  and  other  corpora- 
tions, and  private  rights ;  and  he  hoped  that 
the  Convention  vyould  apply  some  remedy 
in  relation  to  this,  so  as  to  restrict  the 
Legislature  on  all  these  points.  But  whilst 
he  wished  to  see  all  proper  restrictions  placed 
upon  that  body,  he  never  would  place  him- 
self on  record,  as  saying  that  he  would 
not  trust  them  with  the  sum  of  $3  a  day  in  their 


hands  for     over    90    days, 
make  them  corrupt.     And 


for   fear    it    should 
besides  he  had  too 

much  state  pride  not  to  oppose  such  a  step  being 
taken.  He  would  not  send  out  to  our  sister  states 
a  degrading  imputation  upon  the  character  of  our 
own  people ;  virtually  saying  that  we  could  not 
e  Speaker  of  the  Assembly 'shall,  in  wrtue  O/AM  |  trust  our  fellow  citizens  with  more  than 

receive  an  additional  compensation,  equal  to  one-third  |  twelve     shillings     a     day     for  fear      they     would 


«/  his  per  ditm  as  member. 

The  question  was  upon  the  amendment  of  Mr. 
NICHOLAS  to  strike  out  the  words,  "  and  after 
the  year  1817,  shall  not  exceed  the  sum  of  $3  a 
day  for  the  period  of  90  days  from  the  commence- 
ment of  the  session." 

Mr.  JORDAN  *aid  that  he  was  decidedly  in  fa 
vor  of  the  amendment;  as  if  adopted,  it  would 
leave  the  Constitution  pret'y  much  as  it  is  in  re- 
spect to  the  compensation  of  the  Legislature  — 
Tl.-e  words  proposed  10  be  stricken  out,  if  they 
meant  anything,  meant  that  as  long  as  the  pay 
was  $3  a  day  the  Legislature  would  corruptly  pro- 


cheat  us  of  Another  twelve  shillings.  Any  such 
an  imputation  if  put  on  record  by  this  Convention 
would  be  a  disgrace  to  the  State. 

Mr.  NICOLL  said  that  the  convention  must  be 
well  aware  they  could  not  safely  restrict  the  ses- 
sions to  90  days.  If  it  was  to  be  supposed  that 
members  would  prolong  the  sessions  for  the 
sake  of  pay,  then  it  was  no  less  supposable  that 
they  would  adjourn  at  the  end  of  90  days,  because 
there  was  no  pay.  He  had  ascertained  by  com- 
putation, taking  the  average  length  of  legislative 
sessions,  that  the  saving  would  be  only  about  $30 
or  $40  to  a  member  by  this  restriction.  Now  he 


432 


had  sufficient  confidence  in  the  integrity  of  the 
representatives  of  the  people,  to  trust  with  them 
this  mere  question  of  pay. 

Mr.  TOWNSEND  moved  to  strike  out  the  en- 
tire section  and  insert  as  follows : 

"  The  members  of  the  Legislature  shall,  after  the  year 
1847,  receive  for  their  services  an  annual  compensation  af 
four  hundred  dollars.  The  Speaker  ol  the  Assembly  shall, 
after  the  year  1847,  receive  for  his  services  an  annual  com- 
pensation of  five  hundred  dollars." 

Mr.  SIMMONS  moved  to  strike  out  from  1847 
to  the  end  of  the  sentence,  and  insert,  "  The  an- 
nual sessions  shall  not  exceed  the  period  of  90 
days  each."  He  wished  to  get  rid  of  the  sup- 
posed reproach  upon  the  Legislature. 

Mr.  JORDAN  said  that  he  would  suggest  a  bet- 
ter way  by  which  the  object  of  the  gentleman 
would  be  obtained,  and  by  which  it  would  be  done 
too  in  a  more  dignified  and  gentlemanly  manner 
—lie  meant  no  reproach  to  that  gentleman,  or  any 
other  member.  (A  laugh.) 

Mr.  SIMMONS  bowed  very  pleasantly. 

Mr.  JORDAN.  Instead  of  restricting  the  leg- 
islature to  a  90  days  session,  just  ask  them  to  come 
here  about  the  2d  Monday  in  February  as  their 
first  day  of  meeting ;  and  my  word  for  it,  they 
will  all  be  ready  to  leave  here  and  go  home  by 
the  early  part  of  May — at  the  end  of  about  90  days. 

Mr.  STETSON.     Why  so? 

Mr.  JORDAN.  Because  then  they  could  do 
much  better  at  home. 

Mr.  STETSON.  The  gentleman  then  admits 
the  principle  of  self  interest  ? 

Mr.  JORDAN.  Any  man  who  will  deny  that 
is  behind  the  intelligence  of  the  age. 

Mr.  SIMMONS  said  that  he  was  willing  to  ad- 
mit all  the  honor  and  dignity  that  was  claimed 
for  the  legislature,  but  none  the  more  so  from 
hearing  it  preached  up  so  often  on  that  floor. — 
(A  laugh.)  He  was  in  favor  of  this  amendment. 
For  his  own  part  he  much  preferred  biennial  ses- 
sions; but  if  he  could  not  get  them,  then  he  would 
secure  the  substance  of  the  reform  by  a  limit  of 
the  annual  sessions.  In  Congress,  there  was  one 
short  session  ending  on  the  4th  of  March,  and  the 
other  extending  through  the  summer.  He  believ- 
ed that  as  much  real  business  was  done  at  the 
short  as  at  the  long  session.  He  liked  the  princi- 
ple of  the  report  of  the  committee  in  this  parti- 
cular. 

Mr.  SWACKHAMER  said  that  if  there  was 
anything  which  the  people  had  imperatively  de- 
manded at  their  hands,  it  was  that  they  should  do 
something  that  would  tend  to  restrict  the  excess- 
ive legislation.  For  years,  the  time  of  the  people 
and  then-  money  had  been  expended  in  the  dis- 
cussion of  questions  that  are  entirely  irrelevant, 
and  which  ought  to  be  decided  at  home  Gen- 
tlemen were  guilty  of  a  siiange  inconsistency; 
they  had  voted  to  place  restrictions  on  the  people 
in  their  choice  for  a  Governor,  and  yet  now  they 
are  opposed  to  any  restrictions  upon  the  Legisla- 
ture who  are  the  mere  servants  of  the  people. — 
He  had  no  more  confidence  in  the  L^gi.-lalure  than 
in  any  other  128  men  in  the  State.  Yet  he  had  nev 
er  proposed  that  they  should  haveoiily  12  shillings 
a  day  after  a  certain  time;  in  older  to  reflect  on  the 
character  ot  those  men.  At  thesame  tune  thn  gen- 
tleman from  Columbia  (Mr.  JORDAN)  had  admitted 
that  if  the  legislature  was  to  meet  here  first  in 


February,  that  then  they  would  go  home  early  in 
May,  because  they  could  do  better  at  home  than 
here  in  Albany;  and  what  he  would  ask  was  thisr 
but  a  direct  reflection  on  the  honor  and  dignity 
of  those  very  men  whom  he  wanted  to  whitewash 
over  but  a  very  few  minutes  ago.  No  one  could 
deny  that  the  sessions  were  now  very  much  and 
unnecessarily  prolonged ;  and  a  good  part  of  the 
time  was  consumed  m  President  making  three 
years  in  advance ;  and  governor  making  one 
year  in  advance)  Now  he  did  not  wish  to  occu- 
py the  attention  of  the  committee,  but  he  would 
do  any  thing  that  could  be  done,  properly,  with 
a  view  to  put  a  stop  to  this  corrupt  legislation. 
If  the  report  of  the  committee  No.  1,  be  adopted, 
the  business  of  the  legislature  will  be  more  like- 
ly to  be  done  right,  and  done  far  better  in  a  limi- 
ted period  of  time  than  it  is  now  done. 

Mr.  J.  YOUNG  sent  up  an  amendment  pro- 
viding that  travel  fees  should  be  only  10  cents  a 
mile,  and  the  legislative  sessions  be  limited  to  90 
days,  except  in  time  of  war,  insurrection  or  in- 
vasion. 

Mr.  W.  TAYLOR  regretted  the  necessity  that 
had  existed  for  his  absence  during  the  discussion 
of  this  report  for  the  past  few  days.  He  was  gra- 
tified, ,  however,  to  find  that  it  received  in  its 
principle  features,  the  assent  of  the  convention. 
The  proposition  now  under  consideration  was  not 
one  which  he  very  greatly  favored ;  but  it  was  ge- 
nerally felt  by  the  committee  that  there  was  a  ne- 
cessity for  adopting  some  measure  by  which  the 
annual  sessions  of  the  legislature  shall  be  limited 
to  a  certain  term,  and  the  only  measure  which 
came  within  their  duty,  for  effecting  this,  seems  to 
be  the  clause  adopted  in  this  section.  There  had 
been  a  general  complaint  throughout  the  country 
that  the  sessions  were  all  too  long.  One  member 
had  proposed  the  section  in  the  New  Jersey  consti- 
tution, which  was  not,  however,  adopted.  He 
did  not  know  but  the  amendment  of  the  gentle- 
man from  Essex  was  a  better  way  of  effecting  the 
end  proposed.  He  thought  however,  that  100 
days  might  be  a  better  term  than  90,  and  suggest- 
ed that  the  amendment  should  be  so  changed. 

Mr.  SIMMONS  then  said  that  he  would  so  alter 
his  amendment  as  to  put  at  the  end  thereof  the 
words  "from  the  commencement  of  the  session;" 
and  at  the  suggestion  of  the  gentleman  from  On- 
ondaga,  (Mr.  TAYLOR)  he  would  make  it  "  100 
days."  The  difference  between  90  and  100  days 
was  a  matter  of  little  consequence.  It  was  the 
limitation  that  he  looked  at. 

Mr.  RUGGLES  hoped  that  he  would  retain  the 
90  days ;  and  unless  that  time  was  retained,  he 
would  move  so  to  amend. 

Mr.  SIMMONS  said  he  had  made  the  altera- 
tion at  the  request  of  his  friend  from  Onondaga. 
We  have  all  seen  how  thin  the  cloud  of  glory 
was.  New  Jersey  had  seen  through  it,  and  now 
had  clear  sunshine  upon  this  question. 

Mr.  MARVIN  was  opposed  to  any  limitation  in 
this  way  upon  the  action  of  the  legislature.  He 
was  in  favor  of  striking  out  all  these  restrictions 
upon  the  legislature  as  to  the  time  during  which 
they  should  hold  their  sessions.  He  would  not 
intentionally  give  any  vote  that  would  belittle  the 
State  of  New  York  or  have  a  tendency  to  do  so. 
The  only  mode  in  which  the  people  could  speak 
was  through  the  legislature.  That  was  the  very 


433 


corner  stone  of  our  liberties.  Through  it  the 
people  could  alone  speak  their  wishes  and  wants 
and  opinions.  It  was  their  parliament.  All 
other  officers  are  administrative.  The  legislature 
represents  the  people,  through  whom  and  by 
whom  alone  the  people  can  speak  their  wants 
and  wishes.  And  to  propose  restrictions  on  the 
action  of  this  body — this,  the  true  organ  of  the 
people,  is  the  most  anti-democratic  course  that 


can  be  pursued. 
the 


he  proper  sense  of  that  wo 
vould   restrict  the   period 


He  was  a  State's  Rights  man  in 
at  word.     The  idea  that  you 


in   which  the  people 

might  thus  make  their  own  laws,  seemed  to  him 
to  be  anti-democratic.     But  his   main  objection 
was  that  this  was  belittleing  our  State.     He  drew 
a  striking  contrast  between  the   rank,  influence 
and  pay  of  a  member  of  congress  and  of  the  legis- 
ture  of  this  State.     The  latter  office  was  scarcel 
respected   and  little  sought  for,  whilst  the  othe 
was  considered  a  post  of  the  highest  respectabili 
ty,  and  was  desired  by  the  most  eminent  men  i 
the  country.     He  would  elevate  our  own  servants 
And  could  you  do  that,  by  a  paltry  provision  tha 
only  a  90  days'  session  should   be  held,  becaus 
too    much   compensation    was  received  ?      Thi 
whole  system  was  wrong,   and  he  could  not  con 
sent  for   one  moment  to  give  sanction   to  any  o 
these  propositions.     If  the  legislature  does  sit  to( 
many  days  in  the  year  is  that  any  reason  why  thi: 
unwise  attempt  should  be  made  to  restrict  them 
and  you  should  say  they  shall  never  sit  more  than 
90  days.     He  never  himself  expected  to  be  a  mem 
ber  of  the  assembly  or  any  thing  but  a  constituen 
after  this  Convention  was  over.     But  he  claimet 
for  that  legislature  the  right  to  sit  here  as  long  as 
the  wants  of  the  people  required   them  to  make 
laws   for  then!.     The   passage   of  the  resolution 
would  be  a  great  blow  upon  free  institutions. 

Mr.  LOOMIS  said  that  they  were  going  the 
wrong  way  to  work  ;  if  they  would  remedy  the 
disease,  they  must  look  at  the  causes  thereof.  — 
And  limiting  the  pay  of  members  to  $1,50  or 
reducing  the  length  of  the  sessions  would  not  do 
this.  This  clause  conveys  the  imputation  that 
the  members  of  the  legislature  will  lose  sight  of 
the  public  good  for  the  sake  of  private  gain  or 
private  benefit.  Now  rather  than  vote  for  any  of 
these  amendments,  he  would  prefer  to  strike  out 
entirely  all  these  limitations.  He  would,  how- 
ever, say  that  no  legislature  should  be  allowed  to 
fix  its  own  compensation.  He  wouid  prefer  to 
fix  the  period  beyond  which  they  shall  not  sit  to 
the  other  limitations  ;  but  there  were  also  great 
objections  to  that.  The  next  session  must  neces- 
sarily be  a  long  one  ;  as  they  would  have  to  pass 
many  laws  relative  to  the  carrying  into  effect  the 
various  provisions  of  this  constitution,  as  well  as 
other  laws  that  were  not  required  by  former  leg- 
islatures, it  had  much  better  be  left  to  the  usual 
mode  of  the  determining  the  length  of  the  session 
than  to  adopt  any  restrictive  clause. 

Mr.  VYOKDEN  said  (hat  he  very  much 
ted  that  his    friend  from    Essex  (Mr.  SI 
had  not  bestowed  upon  this  section  a  liiile  nu-re 
of  tile  rifled  ions  of  his  sagacious  mind.     Howev- 
er desirable  it  might  b-.-  to  limit  I  he  sessions  of  the 
Legislature,  he  would  have  seen  tlrdt  this    partic 
ular  mode  of  effecting  it  was  objectionable.       Let 
those  who  will,  alter  reflecting  upon  I  he  bu-iutfs 
which  has  thus  tar  been  accomplished  here,  cen- 


regret- 


sure the  Legislature  for  delays.  He  believed  that 
the  Legislature  was  generally  an  industrious  borfy, 
and  the  only  surprise  that  should  be  felt,  after  ex- 
amining the  labor  they  did  perform,  was  that  they 
were  able  to  accomplish  so  much.  The  only 
practical  way  of  limiting  the  term  of  the  sessions 
would  be  to  prohibit  any  member  from  rising  on 
this  floor  for  the  first  90  days,  and  moving  to  fix 
the  time  of  adjournment,  for  the  purpose  of  mak- 
ing speeches  upon  it  and  political  capital  at  home. 
By  adopting  this  provision,  it  would  be  giving  in. 
to  the  hands  of  a  minority  the  power  to  defeat  the 
passage  of  good  laws,  which  had  been  matured 
and  delayed  until  the  end  of  the  session.  And 
there  might  be  contingencies  arising  within  a  few 
days  before  the  day  of  adjournment,  which  would 
require  that  the  Legislature  should  remain  in  ses- 
sion;  but  a  constitutional  provision  met  them  here 
by  declaring  that  they  should  adjourn  upon  a  cer- 
tain day.  He  said  thtre  was  a  great  deal  too 
much  said  about  long  session?,  corrupt  and  inal- 
legislation.  There  could  be  no  instances  shown 
of  such  ki  d  of  legislation.  We  ought  to  be 
grateful  to  those  who  had  preceded  us  for  the 
wise  laws  which  they  had  passed,  and  more  wise 
legislation  was  to  be  found  in  no  other  country. — 
He  hoped  the  amendment  of  his  friend  and  col- 
league (Mr.  NICHOLAS)  would  b-e  adopted. 

Mr.  SIMMONS  said  that  he  could  not  agree 
with  the  argument  of  Mr.  WORDEN.  It  was  a 
mere  accident,  he  had  no  doubt,  that  such  a  pro- 
vision had  been  omitted  in  the,  Constitutions  of 
other  States.  The  terms  of  Courts  and  the  times 
of  their  sittings,  were  now  limited  by  law;  so 
ought  those  of  legislatures.  He  had  occupied  a 
seat  in  the  legislature  of  this  State  for  three  ses- 
sions, and  well  knew  how  the  business  was  piled 
up  and  accumulated  at  the  end  of  the  session,  and 

time  for  reflection. 

see  the  view  that 


then  rushed  through  without 
He  regretted   exceedingly   to 


bad  been  taken  of  this  subject  by  the  gentleman 
"rorn  Herkimer,  (Mr.  LOOMIS,)  knowing  and  feei- 
ng his  influence  here.  But  as  far  as  regarded 
the  suggestions  made  by  that  gentleman,  that  the 
next  session  of  the  legislature  would  have  an  un- 
usual amount  of  business — that  there  was  to  be 
something  like  a  codification  of  the  laws,  &c. — 
y,  all  this  might  be  provided  for  by  an  extra 
session  ;  and  this  was  the  better  plan,  rather  than 
eave  this  question  open,  and  not  have  any  re- 
itriction  on  the  legislature. 

Mr.  WATERBURY  was  decidedly  in  favor  of 
iome  plan  that  should  limit  and  also  shorten  the 
annual  sessions  of  the  Legislature. 

Mr.  STETSON  said  that  he  had  voluntarily 
>romised  to  his  constituents  (and  that  too  in  wri- 
ing)  that  he  would  advocate  a  limitation  of  the 
;nnual  sessions  of  the  Legislature  ;  and  as  far  as 
le  could  ascertain  the  fact,  this  proposition  had 
met  with  their  unanimous  approbation.  The  ear- 
y  days  of  most  of  their  sessions  were  more  devo- 
ed  to  political  discussions  than  to  the  business 
f  the  people.  He  did  not  speak  of  this  as  a  re- 
iroach.  It  was  the  case  in  the  great  legislature 
f  the  nation.  It  has  been  seen  frequently  that  to- 
vards  the  close  of  a  session  there  was  generally 
great  rush  of  business  so  as  to  make  legislation 
nsafe.  Something  ought  to  be  done  to  remedy 
lis  matter,  and  to  make  legislation  more  safe  ; 
nd  also  to  equalize  the  time  through  which  it 


434 


should  be  distributed.  They  could  not  keep  a 
calendar  of  business  the  same  as  in  the  courts ; 
much  must  be  left  to  their  discretion ;  but 
still  a  limitation  of  some  sort  would  be  found 
to  act  beneficially  on  the  legislature,  and  pro- 
bably might  compel  them  to  resort  to  some 
sort  of  a  calendar,  for  the  regulation  and  dis- 
posal of  their  business  and  their  time,  so  that 
the  first  part  should  not  be  devoted  to  political 
discussions,  and  thus  cause  a  great  rush  of  busi- 
ness towards  the  heel  of  the  session.  It  has  been 
said  that  a  restriction  of  the  pay  is  a  reflection  on 
the  honor  and  dignity  of  the  State.  But  he  would 
ask  of  gentlemen,  "  are  we  not  a  little  too  tender 
on  this  point."  Are  not  all  legislatures  founded  on 
the  principle  that  all  men  are  prone  to  err  ?  Is 
not  our  assembling  here  at  this  time — Is  not  all 
the  assembling  of  our  legislatures  a  reflection  on 
the  honesty  of  the  people  ?  Restrictions  on  leg- 
islative bodies  do  not  necessarily  imply  a  charge  of 
dishonesty  on  the  legislature.  By  no  means.  It  is 
not  the  hope  of  gain  that  induces  them  to  pro- 
tract their  sessions.  For  there  is  no  gain  in  long 
sessions.  But  when  you  introduce  this  sliding 
scale  you  point  them  to  a  positive  loss.  And 
that  may  curtail  the  time.  He  was  in  favor 
of  a  limitation  of  some  sort.  We  find  it 
in  the  Constitutions  of  Jersey,  and  of  Iowa, 
recently  adopted;  and  gentlemen  the  other 
day  declared  that  the  Constitution  of  New  Jersey 
was  one  of  the  wisest  that  had  yet  been  made. — 
In  that  of  New  Jersey,  the  pay  is  $3  for  40  days, 
and  $1.50  for  the  balance  of  the  session.  In  that 
of  Iowa,  it  is  $2  for  50  days  ;  and  $1  for  the  re- 
mainder of  the  session.  Some  ask  us,  why  we 
do  no  not  make  it  absolute.  I  answer,  because 
the  duration  of  a  session  is  not  always  a  matter  of 
intent.  The  machine  cannot  be  always  be  made 
to  work  right,  so  as  to  finish  the  work  at  the  right 
time.  It  is  a  sort  of  law  into  itself;  and  the  mem- 
bers may  be  compelled  to  stay  over  90  days,  and 
the  $1.50  is  inserted  to  cover  actual  disbursements. 
It  is  much  better  to  make  it  so  than  to  make  this 
matter  absolute;  you  would  thus  have  a  fair  and 
reasonable  check  on  the  length  of  a  session  He 
hoped  this  amendment  or  something  almost  anal- 
aguus  to  it,  would  receive  the  consent  of  the  com- 
mittee. It  was  very  desirable  that  it  should  do  so. 
For  he  was  satisfied  that  there  was  quite  as  great 
a  demand  for  short  sessions,  for  the  restriction  on 
the  general  waste  oi  the  people's  time  and  money, 
as  for  single  districts,  or  any  other  reform  that  had 
been  loudly  demanded.  Here  we  should  intro- 
duce real  reforms  and  economy.  It  was  a  ques- 
tion in  which  all  the  tax-pa)  eis  of  the  State  were 
interested.  He  hoped  not  to  see  it  slid  by  with 
the  formidable  influence  that  could  be  brought 
to  bear  from  bolh  sides  ngainst  it.  He  wished  his 
voice  could  put  the  same  limitation  on  the  1st 
session  of  Congress.  He  would  soon  do  it  All 
who  had  been  in  the  Legislature  knew  well  that 
for  several  of  the  first  weeks  ot  the  session  no 
progress  whatever  was*  made  except  the  eternal 
committee  of  the  whole,  and  the  everlasting  dis 
cussions  of  the  Governor's  Message  made  for  the 
purpose  of  cieating  political  capital.  Now,  he 
would  ask,  is  this  an  incurable  evil  ?  He  sincere 
ly  hoped  not.  He  hoped  the  amendment  would 
prevail;  and  he  einceiely  hoped  that  those  een- 
tleuien  who  had  done  so  much  to  consume  the 


lime  of  this  body,  would  not  new,  by  their  votes, 
invite  future  legislators  to  imitate  the  example  of 
their  illustrious  predecessors  in  this  hall. 

Mr.  HARRIS  had  not  intended  to  say  a  word 
on  this  subject;  but  he  agreed  with  other  gentle- 
men, that  this  country  generally  was  afflicted  with 
excessive  legislation.  He  regarded  the  protract- 
ed sessions  of  our  Congress  as  a  great  and  crying 
evil.  It  would  be  better  for  this  State  and  better 
for  the  United  States,  if  we  had  less  legislation. 
But  at  the  same  time  it  must  be  remembered  that 
we  had  in  this  nation  more  minds  and  more  time 
devoted  to  legislation  than  in  all  the  world  beside. 
This  was  proper  to  a  certain  extent,  but  we  are 
carrying  the  thing  to  an  extreme.  He  would  be 
in  favor  of  some  remedy.  He  did  not  like  the 
appearance  of  the  proposition  of  the  committee, 
for  it  looked  like  incorporating  a  reproach  against 
the  Legislature  into  the  organic  law.  He  would 
prefer  to  fix  a  stated  salary — say  $300  a  year — 
with  a  reasonable  allowance  for  travelling  fees — 
as  the  gentleman  from  Chautauque  should  have 
more  than  he,  who  lived  in  Albany.  This  might 
restrict  the  sessions  to  60  days.  He  did  not  doubt 
that  under  such  a  provision,  the  sessions  would 
be  much  shortened,  for  it  would  be  for  the  inter- 
est of  members  to  get  through  business  as  spee- 
dily as  possible.  He  did  not  believe  the  people 
would  be  satisfied  if  we  should  terminate  our 
session  without  doing  something  to  remedy  what 
all  agreed  to  be  an  evil.  They  ought  to  have 
something  incorporated  in  the  Constitution  to  re- 
strict this  excessive  legislation,  and  these  pro- 
tracted sessions  of  the  Legislature. 

Mr.  STETSON  inquired  if  the  proposition  of 
the  gentleman  would  not  produce  another  evil  by 
inducing  the  members  to  adjourn  before  public 
business  should  be  finished  ?  A  single  day  will 
enable  them  to  secure  their  salary. 

Mr.  HARRIS  apprehended  that  any  Legislature 
that  should  take  the  responsibility  of  such  a 
course,  would,  by  this  means  terminate  their 
public  duties  for  life,  as  well  as  terminate  the  ses- 
sion. (Laughter.) 

Mr.  STETSON  :  I  should,  rather  think  they 
would. 

Mr.  KENNEDY  was  opposed  to  the  amend- 
ments. That  very  clause  •  by  which  it  was  in- 
tended to  restrict  the  term  of  the  legislature  to  90 
days,  might  be  the  means  of  lengthening  the  du- 
ration of  the  session.  The  act  of  Congress  li- 
mits the  duration  of  the  members  to  the  office. — 
Well,  in  the  2d  session  of  a  Congress  they  never 
rise  till  the  consummation  of  the  time,  and  fre- 
quently sit  for  some  hours  afterwards.  And  if 
our  legislature  was  limited  to  90  days,  they  might 
be  under  the  impression  that  their  constituents 
desire  them  to  sit  a  full  90  days,  business  or  no 
business. 

Mr.  STRONG  was  in  favor  of  the  proposition  of 
the  gentleman  from  Albany,  to  have  a  fixed  sala- 
ry for  the  Legislature,  ami  he  hoped  they  would 
take  a  vote  on  that  point  right  aw*y. 

Mr.  ANGEL  was  very  unwilling  that  this 
amendment  should  be  adopted.  The  legislature 
wanted  room  to  work  as  well  as  the  Convention, 
and  the  experience  which  they  had  had  there  was 
sufficient  to  satisfy  most  of  them  that  such  a  limi- 
tation as  that  proposed  would  be  highly  improper. 
He  would  call  the  attention  of  the  members  of  the 


435 


Convention  to  their  own  action  here  in  order  to 
guide  their  judgment.  Before  they  arrived  here, 
or  started  frorcThome  no  one  supposed  but  that  60 
days  would  be  sufficient  time  for  them  to  be  here, 
and  to  transact  all  the  business  required  of  them. 
And  no  one  supposed  that  they  would  under  any 
circumstances  remain  here  over  90  days.  They 
had  now  been  here  nearly  GO  days  and  they  could 
all  see  where  they  were  !  [Laughter.]  Now  if 
they  were  to  tie  the  legislature  down  to  90  days, 
when  they  came  to  report  on  the  business  that 
was  then  on  the  carpet,  this  restriction  might  cut 
them  off' in  the  middle  of  it,  and  be  exceedingly 
injurious  to  the  public  interests.  And  he  thought 
that  those  who  were  thus  proposed  to  be  restrict- 
ed, might,  with  very  great  propriety,  turn  round 
upon  those  members  of  the  Convention,  who  had 
made  this  proposition  and  wasted  the  time  and 
money  of  the  people  most  shamefully  and  say, 
"Physician,  heal  thyself!"  [Laughter.]  He 
was  in  favor  of  a  reasonable  annual  salary  and  a 
fair  allowance  of  travelling  fees. 

Mr.  SIMMONS  opposed  the  salary  system.  He 
was  in  favor  of  having  the  members  prepare  a  bill 
of  pmticulars,  so  that  the  people  could  see  how 
and  what  was  done.  He  would  not  suffer  them 
to  l>e  present  or  absent  when  ihey  pleased. — 
Members  of  the  Legislature  were  like  other  peo- 
ple in  this  ii.atter  and  inducements  must  be  held 
out  to  them  to  do  their  duty. 

The  question  being  taken,  the  amendment  was 
rejected, 

Mr.  JORDAN  further  supported  the  amend- 
ment of  Mr.  NICHOLAS. 

When  the  question  hefng  taken,  it  was  voted 
down, — ayes  o«3,  na\s  45. 

Mr.  HA'IRIS  moved  to  strike  out  all  of  the 
section  i;>  the  end  of  the  10th  line,  and  to  substi- 
tute an  amendment,  allowing  a  salary  of  $300  a 
year,  and  $1  for  every  t<-n  miles  of  travel. 

Mr.  TOWNSEND  then  withdrew  his  amend 
ment  in  favor  of  this. 

Mr.  CROOKER  moved  an  amendment  so  as  to 
provide  for  extra  sessions. 

Mr.  RICHMOND  considered  this  a  proposition 
to  let  legislation  out  to  the  lowest  bidder.  The 
effect  would  be  to  stifle  debate,  and  to  hurry 
through  bills  without  due  examination,  in  order 
to  do  up  business  in  the  shortest  space*  of  time. — 
Rather  than  give  it  out  in  this  way  by  the  job  he 
would  prefer  to  give  it  to  some  one  or  two 
competent  individuals,  who,  if  mere  cheapness 
was  the  object  could  be  got  to  do  it  for  $2500. — 
He  knew  many  men  capable  of  drawing  bills 
who  would  do  it  for  that  sum.  If  we  were 
really  going  into  this  sjstern  of  jobbing,  here  was 
a  plan  which  would  save  $100,000  to  the  State, 
although  the  S'ate  might  be  the  loser  in  the  long 
run.  The  people  had  long  since  decided  against 
the  salary  principle,  in  the  matter  of  paying  re 
preoeniativea  to  Congress.  They  decided  it  in 
1818, on  i he  question  of  giving  members  of  Con- 
gress $1500  per  annum,  and  that  public  opinion 
had  never  reacted  since.  The  sessions  for  the 
last  few  years  might  have  been  too  long,  but  not 
in  pioportion  to  the  increasing  business  and  popu- 
lation of  the  Srate. 

Mr.  TALLMADGE  admitted  that  there  was 
very  little  done  in  legislation  for  the  first  month. 
But  the  members  coming  from  different  parts  of 


the  State  were  engaged  in  comparing  expressions 
of  the  public  throughout  the  State,  and  ascertain- 
ing the  wants  of  the  different  sections.  Much  bu- 
siness was  done  in  that  way.  He  had  no  objec- 
tion to  a  salary,  but  the  trouble  would  be  in  get- 
ting a  quorum  here  to  work.  If  we  should  treat 
members  of  the  legislature  as  we  do  Boards  of 
Supervisors — give  them  $2  a  day  and  require 
them  to  make  affidavit  of  the  number  of  days  of 
their  personal  attendance,  then  the  amendment 
of  the  gentleman  might  be  made  practicable. — 
There  was  too  much  legislation  now. 

Mr.  KIRKLAND  intended  to  offer  an  amend- 
ment to  the  effect  that  every  day's  absence  should 
be  deducted,  unless  a  sufficient  excuse  should  be 
rendered.  He  was  in  favor  of  the  proposition  for 
a  salary,  and  thought  the  sum  named  to  be  about 
right.  The  reason  the  law  prescribing  a  salary 
for  the  members  of  Congress,  was  condemned, 
was  because  of  the  large  sum  which  they  voted 
to  themselves— $1500  or  $2500  per  annum.— 
Had  it  been  a  more  reasonable  sum,  the  people 
would  never  have  objected  to  it. 

Mr.  WORDEN  said  the  great  evil  was  in  the 
absence  of  members  from  the  House.  Last  win- 
ter the  session  was  prolonged  more  than  three 
weeks  on  account  of  the  want  of  a  sufficient  num- 
ber to  constitute  a  two-thirds  quorum.  He  would 
provide  in  the  Constitution  that  when  there 
should  be  no  work  there  should  be  no  pay.  He 
offered  the  following  amendment : 

"  The  members  of  the  Legislature  shall  receive  for  their 
services  a  sum  not  exceeding  three  dollars  a  day  from  the 
commencement  of  the  session;  but  such  pay  shall  not  ex 
ceed  in  the  aggregate  three  hundred  dollars  for  per  diem 
allowance;  and  no  member  shall  receive  any  compensa- 
tion for  the  time  he  n.ay  be  absent  from  actual  attendance 
upon  the  legislature,  unless  such  absence  is  occasioned 
by  sickness." 

Mr  HARRIS  liked  the  principle  of  this  amend- 
ment better  than  his  own,  and  he  therefore  with- 
drew his  own. 

Mr.  DANFORTH  was  in  favor  of  restricting 
the  length  of  the  session,  and  he  believed  it  was 
called  for  by  public  sentiment.  One  cause  of  the 
length  of  the  sessions,  was  the  example  set  by 
morning  sessions.  He  thought  the  evil  would  be 
corrected,  by  divesting  the  Legislature  of  a  large 
portion  of  its  duties  as  was  proposed,  and  also,  by 
restricting  the  session  to  ninety  days.  Mr.  D. 
expressed  his  surprise  that  after  what  the  gen- 
tleman from  Ontario  (Mr.  WORDEN)  had  suid  as 
to  the  casting  of  imputations  on  the  Legislature, 
that  he  should  now  offvr  such  an  amendment  as 
'.his,  which  he  considered  a  most  direct  reflec- 
tion on  the  legislative  body  He  was  in  favor  of 
a  limitation  of  the  session. 

Mr.  WORDEN  said  his  friend  from  Jefferson 
had  misunderstood  him.  He  had  said  that  by  re- 
stricting the  session  to  100  days,  it  would  throw 
it  into  the  power  of  a  factious  minority  to  block 
up  the  wheels  of  legislation,  by  the  interruptions 
they  could  throw  in  the  way  of  the  passage  of 
bills  at  the  close  of  the  session. 

After  some  further  conversation  between 
Messrs.  DANFORTH  and  WORDEN  on  this 
point, 

Mr.  BASCOM  doubted  the  propriety  of  either 
restricting  the  session,  or  of  requiring  the  legisla- 
ture to  serve  for  nothing.  Another  objection  he 
had  to  this  proposition  was,  the  opportunity  af- 


436 


forded  to  the  members  to  avoid  incurring  the  res- 
ponsibility of  voting  directly  on  a  measure,  by  ar- 
ranging business  so  that  important  measures 
vrould  be  thrown  into  the  heel  of  the  session  and 
thus  escape  action. 

Mr.  SIMMONS  briefly  opposed  the  amendment. 

Mr.  SHEPARD  felt  compelled  to  vote  against 
the  limitation  of  the  term  and  the  proposition  to 
fix  a  salary,  in  order  that  he  might  not  be  charge- 
able with  inconsistency,  hereafter.  At  a  fitting 
season  he  intended  to  bring  before  the  Conven- 
tion— what  seemed  to  him  to  be  the  only  true  way 
of  guarding  against  excessive  legislation — a  pro- 
vision fo"r  biennial  sessions  of  the  Legislature. 

Mr.  DANFORTH  moved  to  amend  the  amend- 
ment of  Mr.  WORDEIST,  by  striking  out  all  after 
the  word  "  allowance."  This  was  lost. 

The  amendment  of  Mr.  WORDEN  was  then 
adopted,  40  to  31. 

Mr.  CHATFIELD  moved  that  in  case  of  extra 
session  the  pay  should  be  $3  a  day.  This  was 
agreed  to. 

Mr.  DANA  moved  to  make  the  pay  of  members 
$2  1-2,  instead  of  $3  a  day.  This  was  lost. 

Mr.  KIRKLAND  moved  to  strike  out  the  fol- 
lowing words  :  "  The  Speaker  of  the  Assembly 
shall,  in  virtue  of  his  office,  receive  an  additional 
compensation  equal  to  one-third  of  his  per  diem 
as  member." 

Mr.  CHATFIELD  said  that  the  compensation 
provided  by  the  committee  was  not  adequate  to 
the  duties  of  the  office  of  Speaker.  His  duties 
were  much  more  arduous  than  those  of  the  other 
members,  and  not  only  that,  but  there  were  a  cer- 
tain class  of  charges  thrown  upon  him,  for  which 
he  received  no  compensation.  Mr.  C.  referred  to 
the  postage  bill  of  the  Speaker,  amounting  in  his 
own  experience  to  $78  during  the  session,  &c. 

Mr.  CROOKER  after  alluding  to  the  expenses 
to  which  members  of  the  Legislature  were  also 
subjected  in  the  payment  of  postage,  moved  to  in- 
sert in  lieu  of  these  words,  that  the  official  post- 
age of  members  of  Legislature  should  be  paid  out 
of  the  State  Treasury. 

Mr.  SIMMONS  opposed  this  as  being  an  at- 
tempt to  revive  the  odious  franking  privilege. 

The  amendment  of  Mr.  CROOKER  was  then 
voted  down,  as  was  that  of  Mr.  KIRXLAND. 

Mr.  CHATFIELD  referred  to  the  inequalities 
that  now  existed  under  the  present  system  of 
mileage,  and  the  one  now  proposed  by  the  com- 
mittee. In  order  to  avoid  this,  and  to  bring  down 
the  allowance  to  something  like  what  the  mem- 
bers had  to  pay,  he  moved  to  reduce  the  mileage 
from  ten  to  rive  cents  per  mile. 

Mr.  NICHOLAS  said  the  disproportion  in  the 
mileage  of  distant  members  of  the  Legislature  and 
those  living  in  the  vicinity  of  the  Capitol  is  more 
than  balanced  by  the  advantage  of  going  home  oc- 
casionally, to  have  an  eye  to  their  own  affairs, — 
which  privilege  members  a  short  distance  from 
their  residence  avail  themselves  of;  whereas  the 
distant  members,  if  they  are  called  home  once 
during  the  session,  it  must  be  at  much  greater  ex- 
pense, and  they  generally  remain  there  only  long 
enough  to  see  that  their  affairs  will  need  their  at- 
tention before  they  return  home  at  the  end  of  the 
session.  In  a  pecuniary  point  of  view,  therefore, 
the  distant  members  are  the  greafer  losers.  The 
amendment  for  this  reason  should  not  be  adopted. 


The  amendment  was  r3Jected. 

Mr.  W.  TAYLOR  moved  to  amend  so  that  the 
limitation  prescribed  by  the  proposition  of  Mr. 
WORDEN,  should  not  apply  until  the  year  1848. 
The  legislation  after  the  adoption  of  the  constitu- 
tion would  be  so  overwhelmed  with  business,  as 
not  to  be  able  to  get  through  in  season. 

Mr.  WORDEN  concurred  in  the  suggestion,and 

The  amendment  was  adopted. 

The  10th  section  was  then  agreed  to,  as  fol- 
lows: 

fj  10.  No  member  of  the  legislature  shall  receive  any  ci- 
vil appointment  within  this  >-tate,  or  to  the  Senate  of  the 
Fnited  States  from  the  Governor,  the  Governor  a-id  Sen- 
ate, or  from  the  Legislature,  during  the  term  for  which  he 
shall  have  been  elected. 

The  llth  section  was  then  read,  as  follows: 
t}  11.  No  person  being  amemher  of  Congress,  or  holding 
any  judicial  or  military  office  under  the  United  States, 
shall  hold  a  seat  in  the  Legislature.  And  if  any  person 
shall,  after  his  el  -ction  as  a  rnem'.er  of  the  Legisla'ure,  he 
elected  to  Congress,  or  appointed  to  any  office,  civil  0'  mi- 
litary, under  the  government  of  the  United  Stjtes,  his  ac 
ceptance  thereof  shall  vacant  his  seat. 

Mr.  TAYLOR,  explained  that  all  the  amend- 
ments that  the  committee  had  proposed  to  this 
section,  was  for  the  purpose  of  making  it  more 
explicit  and  clear  than  was  expressed  in  the  old 
Constitution,  and  that  the  object  was  to  prevent 
a  member  of  the  legislature  being  appointed  in 
any  case  while  a  member,  to  an  office  under  the 
United  States  government. 

Mr.  STOW  said  that  the  difficulty  was  that  this 
would  come  in  conflict  with  the  United  States 
Constitution,  which  prescribed  the  qualifications 
of  members  of  the  senate.  This  was  an  attempt 
to  add  another  qualification  which  this  state  had 
no  power  to  do.  Mr.  Jefferson  himself  had  con- 
ceded this. 

Mr.  W.  TAYLOR  knew  of  no  provisions  in  the 
Constitution  of  the  United  States,  which  prohi- 
bited the  State  of  New  York  from  imposing  such 
restrictions  and  limitations  as  they  please,  in  re- 
gard to  the  appointment  of  members  of  the  legis- 
lature to  such  offices.  The  object  was  to  prevent 
any  intriguing  and  managing  on  the  part  of  the 
members  of  the  legislature  to  get  themselves  places 
and  appointments  to  office  Irom  their  own  body. 
He  saw  no  reason  why  they  could  not  do  this,  as 
well  as  to  prohibit  the  members  of  the  Legisla- 
ture from  accepting  any  other  office  within  the 
gift  of  theii  own  body. 

Mr.  SIMMONS  moved  to  amend  the  tenth  sec- 
lion  by  striking out  the  words  "  or  to  the  Senate 
of  the  United  States,"  and  addressed  the  commit- 
tee in  favor  of  the  amendment,  contending  that 
this  restriction  was  in  virtual  violation  cf  the  Con- 
stitution of  the  U.  States. 

Mr.  STETSON  replied,  and  the  debate  was 
continued  by  Messrs  STOW,  TAGGART,  LOOMIS, 
WORDEN,  and  others,  when  the  committee  rose 
and  reported  progress. 

And  then  the  Convention  adjourned. 

AFTERNOON  SESSION. 

The  Convention,  as  soon  as  they  assembled, 
went  into  committee  of  the  whole,  on  the  report 
of  committee  No.  1. 

The  question  was  upon  the  motion  of  Mr. 
SIMMONS,  to  strike  out  the  words  in  the  10th 
section,  "  or  to  the  Senate  of  the  United  States." 


437 


Mr.  PATTERSON  in  the  Chair  :     Is  the  com- 
mittee ready  for  the  question  ? 

Mr.  RUGGLES :  The  argument  in  favor  of 
striking  out  that  part  of  the  section  which  pro- 
hibits the  Legislature  of  this  Slate  from  electing 
one  of  its  own  members  to  the  United  States  Se- 
nate, proceeds  on  the  ground  that  the  State  has 
not  the  power  to  exclude  any  person  from  eligi- 
bility, who  is  not  excluded  by  the  Constitution  of 
the  United  States.  It  is  founded  on  the  position 
that  the  State  Legislature  derives  its  power  to 
elect  a  Senator  from  that  Constitution.  It  is  ad- 
mitted that  the  power  is  contained  in  that  Con- 
stitution. The  clause  is  as  follows :  "  The  Se- 
"  nate  of  the  United  States  shall  be  composed  of 
"  two  Senators  from  each  State,  chosen  by  the 
"  Legislatures  thereof,  for  six  years."  And  the 
same  section  provides  that  no  one  shall  be  elected 
who  does  not  possess  certain  qualifications  in  re- 
gard to  age,  citizenship,  and  residence.  But  this 
power  arises  out  of  the  compact  between  the 
States  and  the  Union.  It  is  established  by  mu- 
tual consent  and  agreement.  It  is  not  a  power 
granted  by  the  general  government  to  the  state. 
It  was  reserved  or  secured,  but  not  granted  by 
the  federal  constitution.  The  argument  that  this 
convention  has  no  authority  to  regulate  the  le- 
gislature in  the  exercise  of  the  power  of  choos- 
ing a  Senator,  fails,  unless  it  shows  not  only,  that 
the  Legislature  derives  its  power  from  the  fe- 
deral constitution,  but  that  it  acts  as  the  agent 
of  that  government,  in  its  exercise.  It  is  in  no 
sense  the  agent  of  the  federal  government. — 
The  right  of  choosing  Senators  in  Congress  be- 
longs to  the  State  sovereignty.  It  is  that  sov- 
ereignty which  13  represented  in  the  Senate.  The 


legislature  is   the 
electing  Senators. 


igent  of  that  sovereignty    in 
The  State  sovereignty  is  the 


constituent  of  the  United  States  Senate — not  its 
agent;  and  the  legislature  is  in  no  case  responsi- 
ble to  the  federal  government  for  the  mariner  in 
which  the  power  of  electing  is  exercised,  pro- 
vided it  is  exercised  in  conformity  with  the  con- 
stitution of  the  United  States.  In  what  body  of 
men  does  the  State  sovereignty  reside  ?  Undoubt- 
edly in  the  people,  who  are  now  represented  in 
this  Convention.  To  whom  is  the  exercise  of  the 
power  01  electing  a  Senator  entrusted  ?  To  the 
legislature  which  ordinarily  represents  that  sov- 
ereignty ;  and  which  was  created  by  it  and  is  sub- 
ject to  its  regulation  and  control.  The  power  of 
election  must  be  exercised  in  conformity  with 
the  provisions  of  the  constitution  of  the  United 
States ;  but  in  all  other  respects  according  to  the 
free  will  of  the  State  government  as  the  constitu- 
ent power.  There  is  no  restraint  updh  that  pow- 
er, excepting  that  which  is  imposed  by  the  fed- 
eral constitution.  The  State  cannot  elect  a  man 
under  thirty  years  of  age ;  because  that  age  is  one 
of  the  qualifications  prescribed  by  the  federal 
constitution.  But  if  the  legislature  should  choose 
to  say  that  they  will  elect  no  Senator  under  the 
age  of  40  years,  they  have  a  perfect  right  to  do 
so,  and  the  Senate  of  the  United  States  could  not 
reject  him.  The  constitution  of  the  United  States 
is  not  violated  by  such  an  exercise  of  the  power. 
It  has  been  said  by  the  gentleman  from  Genesee, 
(Mr.  TAGGART,)  that  we  cannot  enforce  the  pro- 
hibition which  the  section  now  under  considera- 
tion imposes  on  the  legislature.  It  may  be  ad- 


mitted that  if  the  legislature  should  disregard  the 
prohibition,  and  elect  one  of  its  own  members  as 
a  Senator  in  Congress,  and  the  Senate  should  ad- 
mit him  to  a  seat  in  that  body  the  State  is  with- 
out remedy.  This  results  from  the  nature  of  the 
connexion  and  relation  between  the  two  govern- 
ments. So  if  we  should  fail  in  our  duty  to  our- 
selves and  to  the  general  government  by  refusing  or 
neglecting  to  make  an  election,  that  government  is 
equally  remediless  from  the  same  cause.  But 
this  does  not  affect  the  question  of  our  duty  to 
them,  or  of  theirs  to  us.  The  election  of  a  Sena- 
tor in  obedience  to  the  requirements  of  the  State 
Constitution,  cannot  be  enforced  by  any  action 
against  the  general  government.  But  it  may  be 
enforced  against  its  own  agents  who  are  to  exer- 
cise the  power.  If  it  could  be  supposed  that  the 
legislature  would  so  far  forget  its  duty  to  the  au- 
thority which  created  it  as  to  act  in  disobedience 
of  its  declared  will,  its  members  might  be  sub- 
jected to  impeachment,  for  misconduct or 

even  to  punishment  as  for  an  ordinary  misdemean- 
or. Who  can  complain  of  the  restriction,  we  are 
about  to  impose  on  our  own  agents  ?  Certainly 
not,  the  United  States  Senate,  or  the  federal  gov- 
ernment— so  long  as  this  State  sends  them  a 
Senator  with  the  qualifications  required  by  that 
Constitution  our  duty  is  fulfilled. 

Mr.  MARVIN  wished  to  be  distinctly  under- 
stood upon  this  question.  If  the  gentleman  from 
Dutchess  (Mr.  RUGGLES)  had  understood  him 
(Mr.  M.)  as  advancing  the  proposition  that  the 
legislature  of  a  state  in  choosing  a  senator  of  the 
United  States  acted  as  the  agent  of  the  United 
States  he  (Mr.  R.)  had  misunderstood  him.  What 
:ie  had  said  was  that  the  legislatures  of  the  States 
n  choosing  senators  of  the  United  States  acted 
under  the  authority  of  the  Constitution  of  the 
United  States  and  in  pursuance  of  its  provisions. 
[t  was  true  that  the  legislature  acting  in  behalf 
of  the  state  was  the  agent  of  the  state  but  it  does 


an  act  provided  for  by  the  Constitution  of  the 
United  States.  The  Constitution  of  the  United 
States  contemplated  that  each  state  would  have  a 
legislature — a  republican  government  could  not 
exist  without  a  legislature — and  upon  such  legis- 
lature when  enacted  by  state  action,  the  Consti- 
tution of  the  United  States  imposed  the  power  of 
appointing  senators.  That  power  was  derived 
from  the  United  States  Constitution,  and  it  goes 
on  and  declares  that  we  may  choose  a  senator  in 
the  congress  of  the  United  States,  and  then  pre- 
scribes certain  qualifications  for  the  senator.  To 
those  qualifications,  he  contended,  it  was  not  in 
the  power  of  the  state  governments  either  to  add 
or  diminish.  Because,  if  the  legislature  may  add 
to  those  qualifications,  or  diminish  them,  at  their 
pleasure,  they  may  be  entirely  frittered  away, 
and  the  United  States  government  may  be  impair- 
ed or  overturned.  That  was  the  whole  extent  of 
the  argument.  The  question  might  come  up  in 
relation  to  the  state  laws  which  declare  that  a 
member  of  congress  shall  reside  in  the  district 
from  which  he  is  chosen.  If  the  state  choose  to 
elect  a  man  who  is  not  a  resident,  would  he  not 
still  be  a  member  of  congress  ?  There  is  nothing 
in  the  Constitution  wrhich  prohibits  it.  If  gen- 
tlemen were  satisfied  that  we  had  the  power  to 
incorporate  this,  provision  in  the  Constitution, 
and  make  it  effective,  he  did  not  object  to  it.  He 


438 


did  not  wish  to  see  any  thing  inserted  here  which 
would  be  inoperative.  It  would  be  unsafe  to  in- 
sert a  provision  here  which  would  not  be  binding 
or  obligatory.  It  was  our  duty  to  guard  against 
such  an  evil.  Errors  which  the  people  commit 
may  be  corrected  by  themselves  ;  but  in  prescrib- 
ing rules,  by  which  the  agents  of  the  people  are 
to  act,  our  duty  was  to  make  only  such  provisions 
as  could  be  carried  out  and  made  effective. 

Mr.  RUGGLES  said  he  did  not  intend  to  say 
that  the  right  of  electing  a  Senator  in  Congress 
was  a  reserved  right,  but  that  it  was  a  right  se- 
cured to  the  state  sovereignty,  by  the  compact 
contained  in  the  Constitution  of  the  United  States. 
That  the  legislature  was  the  agent  through 
which  the  state  exercised  the  right  of  electing. 
In  this  as  in  all  other  acts  and  duties  the  legisla- 
ture is  subject  to  the  control  of  the  sovereign  power 
of  the  state.  With  regard  to  officers  appointed  by 
the  government  of  the  United  States,  this  state 
had  no  control  over  them  except  to  exclude  them 
from  office  under  us.  Nor  have  we  any  control 
over  the  people  in  their  choice  of  a  member  of 
the  house  of  representatives.  In  that  case  the 
state  government  can  place  no  restriction  upon 
their  choice;  because  in  electing  a  member  of 
congress  the  people  act  as  the  people  of  the 
United  States,  and  not  as  the  people  of  the  state 
of  New- York.  The  States  elect  the  senate — 
the  people  elect  the  house  of  representatives. — 
The  Staie  government  has  the  right  in  ciuectiug 
the  election  of  a  Senator  to  superadd  qualification* 
\  in  the  candidate  beyond  those  prescribed  in  the 
federal  constitution :  but  with  this  limitation  that 
such  superadded  qualifications  shall  nut  be  re- 
quired by  the  State  for  the  purpose  of  ernbarra-s- 
ing  the  action  or  injuring  the  strength  of  the  gen- 
eral government.  This  would  be  an  abuse  of  the 
power  of  electing.  But  such  restrictions  as  are 
included  to  preseive  the  purity  and  integiity  oi 
the  State  goveinment,  and  to  prevent  its  members 
from  u>itig  ihe  influence  of  their  stations  for  the 
purpose  of  intrigue  and  the  gratification  of  ambi- 
tion, ate  necessary  for  our  own  safely  and  jus- 
tifi.ible  towards  the  United  States. 

Mr.  ANGEL  said  he  apprehended  that  the 
gentlemen  who  had  spoken  in  favor  of  the  mo- 
tion to  strike  out  the  words  utuicr  consideration 
were  mistaken.  I  do  not  (said  he)  understand  thc- 
powers  of  the  General  Government  and  Ihe  re- 
served rights  of  the  States  as  they  do.  The  gen- 
eral Government  has  no  power  except  such  as  ha* 
been  granted  by  the  States;  its  authority  is  wholl) 
derivative,  and  it  can  exercise  no  power  no; 
granted  to  it.  If  the  power  of  the  State  to  pro- 
hibit its  Legislature  from  appointing  one  of  its 
members  to  the  office  of  U.  S.  Senator  has  not 
been  granted  to  the  general  Government  or  pro- 
hibited by  the  Constitution  it  still  resides  in  the 
State  2nd"  the  S  ate  has  full  pov\er  to  exercise  it. 
I  think  the  gentlemen  upon  the  other  side  of  the 
question  can  no  where  find  the  grant  of  this  pow- 
er. 1  will  invite  the  attention  of  the  Conven- 
tion to  the  Constitution  (here  Mr.  A.  read  the 
clauses  of  the  Constitution  relating  to  the  appoint- 
ment and  qualifications  Jo  U  .  S.  Senators)  and 
then  proceeded  to  state— here  is  no  express  grant 
oi  prohibition  of  the  power  as  contended  for  ;  no 
such  grant  or  prohibition  car.  be  implied  with 
out  the  widest  and  most  dangerous  lautude  of 


construction.  The  rule  ot  c  instruction  coniei.d. 
ed  for  by  the  gentlemen  who  advocate  the  mo. 
tion  under  consideration  is  more  latiluclinous  than 
any  I  have  ever  heard  before  urged.  It  opens  fhe 
door  of  federal  power  to  its  \\idest  exteni  and  if 
adopted  and  acted  upon  it  will  swallow  up 
the  sovereignty  of  all  the  Siates.  The  only 
limitation  in  the  Constitution  in  regard  to  the 
appointment  of  Senators  is  tt  at  which  requires 
that  they  shall  he  thirty  years  of  age,  shall  have 
been  ci'izeris  nine  years  and  shall  reside  in  the 
Stale  at  the  time  of  their  appointment.  If  we 
appoint  Senators  with  these  qualifications  it  is  all 
the  general  government  can  require.  That  govern- 
ment has  no  right  or  authority  to  look  into  the 
internal  regulations  of  a  State  or  to  dictate  to  a 
State  what  classes  ot  its  citizens  it  shall  declare 
eligible  or  ineligible  to  office.  I  insist  thai  in  the 
exeicise  of  her  sovereign  power  the  Sta'e  has  a 
right  to  insert  the  words  in  question  in  her  Con- 
stitution or  to  leave  them  out,  as  she  may  choose. 
[Mr.  A.  then  read  the  amendments  to  the  U.  S. 
Constitution  declaring  that  the  enumeration  of 
certain  rights  shall  not  be  construed  to  deny  or 
disparage  others  retained,  and  declaiing  that  the 
powers  not  delegated  to  the  U.  S.  by  the  Consti- 
tution nor  prohibited  by  it  to  the  States,  are  re- 
served, &c.]  By  these  amendments,  said  Mr.  A., 
the  peo-ple  intended  to  limit  the  power  of  the  ge- 
neral government  to  the  expressed  rights  and 
powers  gtanted.  The  general  government  have 
the  right  to  require  us  to  appoint  Senators  who 
are  thirty  years  old,  who  have  been  citizens  of  the 
United  States  nine  years,  and  who  shall  reside  in 
the  State  at  the  time  of  their  appointment.  These 
rights  are  enumerated  and  they  are  all  that  the 
general  government  can  claim;  their  enumeration 
does  not  deny  or  disparage  the  right  of  sovereign 
power  of  a  State  to  declare  the  members  of  her 
Legislature  ineligible  to  the  office  of  U.  S.  Sena- 
tor. It  is  with  deference  that  I  differ  with  the 
genflemen  who  Advocate  the  contiary  doctrine,  but 
while  I  express  my  regard  for  the  gentlemen 
themselves,  I  must  be  permitted  to  say  tha'  I  es- 
teem the  doctrine  they  advocate  on  this  occasion 
as  hostile  to  the  sovereign  rights  of  the  State, 
subversive  of  the  intention  of  the  framers  of  the 
U.  S.  Consti'ution  and  highly  dangerous  to  the 
free  institutions  of  out  country. 

Mr.  STOW  said  that  this  expediency  of  this 
inhibition  might  be  all  very  well,  if  we  have 
the  power  to  place  it  in  our  Constitution ;  but 
that  is  not  now  the  question.  We'are  now  to  de- 
termine as  to  our  authority  to  prescribe  the  quali- 
fications of  a  U.  S.  Senator.  If  we  have  that  au- 
thority then  tne  pending  provision  was  very  fit 
and^  proper;  if  on  the  other  hand  we  have  no 
such"  power,  then  this  prohibition  should  find  no 
place  in  our  Constitution.  This  did  not  involve 
State  rights,  but  it  wras  a  question  ot  con- 
stitutional power.  He  did  not  wish  to  be 
understood  as  surrendering  State  rights;  he 
had  always  been  an  advocate  of  those  rights ; 
and  with  all  deference,  he  claimed  to  have 
been  the  only  one  who  had  .stood  up  in  de- 
fence of  the  State  rights  heretofore.  The  only 
two  propositions  which  had  been  made  for  the 
protection  of  State  interests,  by  the  separation  of 
the  State  from  the  National  Government,  he  had 
the  honor  to  introduce  himself.  First,  that  the 


439 


election  of  Governor  should  be  upon  differen 
years  from  those  when  a  President  was  elected 
so  that  the  people  of  the  State  might  be  free  fron 
any  influences  connected  with  that  election  whet 
they  chose  their  State  officers.  Second,  that  if 
officers  of  the  general  government  should  hold  of 
fice  under  this  State.  Now  the  question  for  them 
to  define  was  what  is  the  constitution  of  the  U 
States,  and  then  they  should  strictly  conform  t 
it.  He  contended  that  the  government  of  the  U 
States  and  of  each  State  government  was  in  itsel 
independent.  Acting  in  its  own  sphere,  the  pro 
visions  of  each  had  the  same  efficiency  precisely 
In  the  Constitution  of  this  State  when  the  qualifi 
cations  of  the  Governor  are  prescribed  they  ne 
cessarily  imply  that  no  others  shall  be  added  ;  s< 
in  the  Constitution  of  the  U.  S.;  when  that  pre 
scribes  qualification  they  are  the  only  rule  of  ac 
tion,  no  inhibitives  can  be  superadded. — 
The  gentleman  from  Allegany,  (Mr.  AN 
GEL,)  had  met  the  question  fairly,  and  ask 
how  it  can  be  supposed  that  a  prohibition 
exists,  when  none  is  expressed  in  the  Consti 
tution  ?  Upon  this  question  he  cited  an  opinioi 
by  Judge  Story,  which  he  contended  was  the  true 
common  sense  view  of  it.  It  had  been  declarec 
by  this  Convention  that  the  Governor  should  be 
30  years  of  age  and  five  years  a  resident  of  the 
State;  and  the  Legislature  had  no  right  to  add  to 
those  qualifications  one  jot  or  tittle.  Nor  had  w< 
any  authority  to  add  to  the  qualifications  pre 
scribed  by  the  Constitution  of  the  U.  States  for  a 
Senator.  The  argument  used  by  gentlemen  on 
the  other  side  was  that  the  power  to  elect  a  Sena- 
tor was  not  derived  from  the  U.  S.  Constitution 
but  from  our  reserved  rights.  He  asked  how  we 
came  to  have  a  Senator  at  all  except  from  the 
Constitution  ?  If  it  is  a  reserved  right,  what  is 
the  meaning  of  reserved  rights  ?  If  the  Legisla- 
ture had  this  power  under  a  reserved  right  it  must 
have  existed  prior  to  the  U.  S.  Constitution  ;  anc 
no  one  will  pretend  this  to  have  been  the  case. — 
It  had  no  existence  before  the  Constitution — and 
thus  the  argument  destroys  itself  It  had  been 
said  tgo,  that  in  the  election  of  Senator,  the  Le- 
gislature obeyed  no  mandate  of  the  Constitution 
of  the  United  States.  This  he  did  not  agree  to  at 
all.  The  language  of  that  Constitution  is  manda- 
tory; in  obeying  it  they  executed  a  mandate,  and 
one  too  they  were  not  authorised  to  disobey.  IJ 
this  was  not  so  then  one-third  of  the  State  by  re- 
fusing to  elect  any  Senators,  might  overthrow  the 
U.  S.  Senate— of  course  the  Congress,  and  thus 
upset  the  U.  S.  Government.  As  to  the  distinc- 
tions drawn  by  the  gentleman  for  Clinton,  (Mr. 
STETSON,)  between  eligibility  to  the  office  of  U. 
S.  Senator,  and  the  qualifications  therefore,  he 
could  not  comprehend  it. 

Mr.  Sl'ETbON  :  The  distinction  between  these 
two  is  made  in  the  Constitution  of  the  United 
States. 

Mr.  STOW  :  But  in  practice  the»e  are  certain- 
ly  conveitible  terms;  if  a  citizen  be  disqualified 
from  filling  an  office,  he  is  certainly  ineligible.— 
The  Constitution  provides  that  the  States  shall 
choose  two  Senators  each,  who  shall  be  elected 
by  the  Legislature.  Each  member  takes  an  oath 
that  he  will  obey  the  Constitution  of  the  United 
States,  ana  they  are  bound  by  that  oath  ;  although 
they  are  not  under  its  immediate  auihoriiy  they 


,ire  bound  to  obey  it  by  the  highest  considerations 
of  duty.  If  it  was  true  that  this  provision  in  the 
Constitution  was  not  obligatory,  then  one-third  of 
the  States  might  overturn  the  government  of  the 
United  States,  by  refusing  to  elect  Senators.  If 
there  are  no  Senators  elected,  then  there  is  no  go- 
vernment ;  because  it  requires  a  vote  of  two- 
thirds  tor  some  purposes.  The  passage  of 
this  inhibition  seemed  to  settle  a  principle  which 
\voul  1  allow  the  Stites  to  proceed  and  extinguish 
the  National  Government.  It  needs  but  to  go  one 
step  further,  and  assume  the  right  to  rob  the  U.  S. 
Government  of  the  services  of  all  its  citizens — a 
government  to  which  we  all  owe  allegiance. — 
This  inhibition  would  apply  as  well  to  all  officers 
of  the  State  as  well  as  to  members  of  the  Legis- 
lature, and  to  all  the  officers  of  the  United  States 
as  well  as  to  a  U.  S.  Senator.  He  would  put  it 
to  the  gentleman  from  Duichess,  and  began  an- 
swer,  whether  the  Constitution  might  not,  upon 
his  principle,  declare  that  no  member  of  the  Le- 
gislature should  receive  votes  for  Piesident  of  the 
United  States?  And  if  this  provision  may  apply 
to  the  U.  S  Senate,  why  not  apply  it  to  the  House 
of  Representatives?  [He  proceeded  further  to 
•ommenl  on  this  subject,  and  cited,  in  answer  to 
arguments  previously  urged  on  the  other  side,  va- 
lious  authorities,  but  we  are  compelled  to  short- 
en  our  report  ] 

Mr.  WORDEN,  like  the  gentleman  from  Erie, 
(Mr.  STOW)  had  not  supposed  that  this  question 
would  arise,  or  he  might  have  given  more  consi- 
deration to  it.  It  was  insisted  that  the  proposed 
provision,  preventing  the  legislature  from  elect- 
ing any  one  of  its  members  a  Senator  in  Congress, 
was  in  conflict  with  the  Constitution  of  the  United 
States.  That  instrument  provides  that  the  Sena- 
tors shall  be  chosen  bv  the  Legislatures  of  the 
several  States,  and  "  that  no  person  shall  be  a 
Senator  who  shall  not  have  attained  to  the  age  of 
thirty  years,  and  been  nine  years  a  citizen  of  the 
United  States,  and  be  an  inhabitant  of  that  State 
for  which  he  shall  be  chosen."  Gentlemen  had 
read  from  the  commentaries  of  Mr.  Story,  to 
show  that  the  States  could  not  impose  other  con- 
ditions of  eligibility  than  are  provided  in  the 
United  States  Constitution,  and  they  contend  the 
provision  in  question  conflicts  with  that  doctrine. 
Mr.  W.  said  he  did  not  so  understand  the  doc- 
trine of  Judge  Story,  or  that  it  conflicted  with, 
or  had  any  relation  to,  the  proposition  under  con- 
sideration. It  is  not  proposed  to  add  any  new 
qualifications,  but  simply  to  declare  that  persons 
holding  a  particular  station  under  the  state  gov- 
ernment, shall  be  ineligible  to  that  office.  The 
United  States  Constitution  does  not  declare  that 
every  person  having  the  requisite  qualifications 
may  be  chosen,  but  that  no  one  is  eligible  without 
them.  It  does  not  provide  that  the  states  may 
not,  in  reference  to  their  own  policy,  or  interest, 
or  security,  say  that  other  qualifications  shall  be 
equisite,  or  that  every  person  having  them, 
iiuler  all  circumstances,  and  v\  hen  occupying 
high  stations  of  trust  and  responsibility  in  the 
state  Government  may  be  chosen.  Unless  the 
tales  have  this  power  to  impose  tlm  restiiction 
m  the  Legislature,  they  may  be  unable  to  organ- 
de  their  own  governments  so  that  they  sliuu  i  • 
eyond  the  action  or  influence  of  the  feder.il  gov- 
rnment.  He  considered^  every  slate  perfectly 


440 


competent  and  at  lull  libei  ty  to  do  this,  and  to  im- 
pose upon  all  its  public  officers  the  condition  that 
they  should  not  abandon  their  trusts  to  the  preju- 
dice of  the  interesis  of  the  State,  in  order  to  ac- 
cept more  lucrative  appointments  elsewhere. — 
Unless  this  was  so,  the  best  interests  of  the  Slate 
might  be  sacrificed  and  thu^e  to  whom  high  duties 
were  entrusted,  a;«d  necessary  lo  be  performed 
for  i he  public  good,  might  be  induced  to  abandon 
them,  when  iheir  performance  was  most  essen- 
tial. The  doctrine  contended  fur  was  subver. 
sive  of  state  interests  and  would  impair  the  in- 
tegrity of  State  Governments.  It  would  leave 
them  disarranged,  and  greatly  embarrassed 
whenever  the  federal  government  chose  to  do  so. 
Gentlemen  might  have  carried  their  arguments 
still  further,  and  insist  that  in  declaring  a 
member  of  the  Legislature  ineligible,  we  assert 
the  right  of  declaring  every  citizen  of  the  State 
ineligible;  but  that  would  not  be  a  reasonable 
i-ule — no  public  necessity  would  justify  it  and 
it  would  not  be  in  accordance  with  a  just 
and  sound  construction  of  the  federal  Constitution. 
That  instrument,  like  all  other*,  is  to  have  a  sen. 
sible  construction  with  reference  to  its  objects, 
which  are  consistent  with  the  integrity  of  iht 
State  governments.  In  'his  view,  and  foi  this 
purpose1,  if  we  deem  it  impolitic  or  unwise  that 
the  governor  of  this  State  shah  not  abandon  his 
office  or  surrender  up  his  trust,  we  may  say  so 
without  violating  any  duty  we  owe  the  federal  go- 
vernment, or  conflicting  with  any  provision  of  the 
federal  constitution.  We  may  apply  the  same 
rule  to  the  mtinoers  of  the  legislature.  This  pow- 
er was  necessary  to  preserve  State  rights,  State 
governments,  and  prevent  their  being  broken  in 
upon,  or  disturbed  by  the  action  of  the  lederal 
government  or  the  observance  of  any  supposed 
obligation  to  that  government.  To  avoid  any 
suca  consequences  we  impose  these  restrictions 
upon  the  Legislature.  The  constuution  of  the 
United  Slates  was  not  to  be  so  construed  as  to  pre- 
vent us  from  imposing  such  obligations  and  re- 
su  ictions  on  our  own  Stale  officers,  as  in  our  judg- 
mtnis  ,v  ere  consistent  with  the  integrity  of  our  own 
State  government  and  a  just  and  proper  adminis- 
(ration  of  it.  It  all  resolved  itselt  into  the  pro. 
position  sustained  by  the  gentleman  from  Dutchess 
(Mr.  KUGGLES,)  ar,d  the  gen1  If  man  from  Herki- 
mer,  (Mr.  LOOMIS)  that  the  State  had  the  light  to 
impost:  rulfS  upon  its  public  officers  in  the  dis. 
cliaige  of  their  official  duties. 

Mr.  RUGGLES  followed  in  reply  to  Mr.  STOW. 
He  had  not  intended  to  say  that  this  was  a  re- 
sewed  right,  under  which  we  have  this  power  ; 
but  upon°the  same  footing,  a  right  as  strong  and 
stable,  secured  to  us  by  the  compact  between  the 
States  and  the  Federal  Government.  The  gen- 
tleman from  Erie  had  said  that  in  electing  a  Se- 
nator of  the  U.  S.  the  State  government  executed 
a  mandate  in  the  Constitution  of  the  U.  S.  The 
language  of  the  Constitution  was,  that  the  Senate 
shall  consist  of  two  Senators  from  each  State, 
elected  by  the  legislature  thereof,  and  prescribes 
the  qualifications  which  they  shall  possess.  Far 
be  it  from  him  (Mr.  R.)  to  say  that  the  State  might 
refuse  to  elect  a  Senator  and  still  do  their  duty  to 
the  general  government.  But  still,  they  exercised 
a  right  which  secured  to  them  a  representation  in 
t'ie  Senate  of  the  U.States,  when  they  choose  a  Se- 


nator, and  not  a  right  secured  to  the  U.  S.  govern- 
ment to  have  Senators  from  each  State.  And  they 
could  not  be  compelled  to  exercise  that  right,  any 
more  than  an  individual  voter  might  be  compelled 
to  exercise  his  right  to  enjoy  the  elective  franchise. 
It  was  said  that  the  State  Government  cannot 
prescribe  any  other  qualifications  than  those  laid 
down  in  the  Constitution  of  the  United  States. — 
This  argument  would  come  to  this — that  the  leg- 
islature of  the  United  States  could  not  exercise 
the  free  privilege  of  choice.  The  legislatures 
could  net,  be  admitted,  if  they  should  deem  prop- 
er to  elect  a  man  who  is  not  30  years  of  age  nor  a 
9  years  resident ;  but  if  they  preferred  to  elect  a 
man  who  was  40  years  of  age,  instead  of  one  who 
was  30,  did  any  one  doubt  that  they  had  the 
power  to  do  so  ?  And  if  they  choose  to  combine 
under  any  general  rule  for  the  purpose  of  mak- 
ing a  selection,  they  had  the  right  to  do  that. — 
It  was  exclusively  in  the  power  of  this  Conven- 
tion to  say  to  the  legislature  that  they  should  not 
elect  one  of  their  own  members  a  Senator  of  the 
U.  States.  In  this  they  did  no  injury  to  U.  S. 
government,  nor  violated  its  Constitution.  No 
person  would  undertake  to  say  that  in  so  doing 
they  at  all  impaired  the  strength  of  the  Govern- 
ment of  the  U.  States.  And  he  could  not  see  that 
in  imposing  this  rule  upon  the  legislature,  we 
were  violating  the  Constitution  or  transcending 
our  own  powers. 

Mr.  WHITE  then  rose  and  said :  I  rise  very 
reluctantly  to  express  my  sentiments  uprn  the 
important  subjtct  under  consideration,  and  the 
magnitude  of  the  con-equences.  which  it  involves, 
must  plead  mv  apology  lor  trespassing  upon  the 
attention  of  the  committee  at  this  time.  I  may 
premise  that  I  have  uniformly  maintained  the 
principles  of  Stale  Rights,  and  I  should  be  the 
last  person  in  this  assembly  to  surrender  them. 
But  I  hold  that,  to  be  perfectly  consistent  with 
another  doctrine  which  I  entertain,  that  the 
Government  of  the  United  States  possesses  certain 
enumerated  and  limited  powers;  and  that  so  far 
as  those  powers  are  delegated  in  the  Consti- 
tution of  the  United  States,  the  authority  thus 
specifically  granted  by  the  States  and  people 
is  sovereign)  and  carries  with  it  all  the  means  that 
are  necessary  and  proper  to  execute  its  purpose. 
I  think  it  will  be  conceded  as  a  general  principle, 
that  every  gevernment  must  have  the  means  of 
providing  for  its  existence  and  preservation,  and 
the  carrying  out  of  its  own  powers.  It  cannot 
be  that  matters  involving  that  existence  can  be 
safely  confided  to  any  other  authority  or  govern- 
ment whatsoever.  This  principle  which  is  vital- 
ly connected  with  all  political  institutions 
is  inherent  in  the  Constitution  of  the  United 
States.  This  power  is  not  however  exercised,  as 
some  gentlemen  who  have  preceded  me  allege,by  a 
mandate  from  the  government  of  the  U.  States,  but 
under  a  solemn  compact  into  which  this  State  has 
entered  with  the  sovereign  States  of  this  Union. 
What,  let  us  inquiie,  is  the  nature  of  that  com- 
pact ?  The  Constitution  declares  that  "  the  Se- 
nate of  the  United  States  shall  be  composed  of 
two  Senators  from  each  State,  chosen  by  the  Le- 
gislature thereof,  for  six  years."  It  declares, 
still  farther,  that  "  no  person  shall  be  a  Senator 
who  shall  not  have  attained  to  the  age  of  thirty 
years,  and  been  nine  years  a  citizen  of  the  United 


441 


States  ;  and  who  shall  not  when  elected  be  an  in- 
habitant of  that  State  for  which  he  shall  be  cho- 
sen." These  qualifications,  in  my  humble  judg- 
ment, can  neither  be  increased  or  diminished  by 
any  action  of  this  honorable  body,  without  a  vio- 
lation of  the  Constitution  of  the  United  States, 
which  we  are  all  bound  to  support  and  defend. — 
And  what  are  the  powers  that  by  the  same  in- 
strument are  reserved  to  the  States  ?  That  "the 
times,  places,  and  manner  of  holding  elections 
for  Senators  and  Representatives,  shall  be  pre- 
scribed in  each  State  by  the  Legislature  thereof: 
but  the  Congress  may,  at  any  time,  by  law,  make 
or  alter  such  regulations,  except  as  to  the  place 
of  chosing  Senators."  From  this  provision  of 
the  Constitution,  it  will  appear  manifest  in  what 
case  the  States  can  exercise  their  authority,  and 
it  will  be  remarked  that  two  of  these  powers  are 
conditional  and  dependent  upon  the  legislation  of 
the  Congress  of  the  U.  S.  and  that  as  to  the  other, 
the  determination  as  to  the  place  of  choosing  Sena- 
tors, is  the  only  power  reserved  by  the  constitution 
to  the  Legislature  of  this  State.  In  order  to  elu- 
cidate and  illnstrate  the  position  I  take  upon  this 
question,  allow  me  to  state,  for  the  information  of 
the  committee  the  construction  which  has  been 
given  to  this  provision  of  the  Constitution,  by 
the  House  of  Representatives  of  the  United  States. 
Many  years  since  when  I  was  a  resident  of  the 
State  of  Maryland,  the  Legislature  passed  an  act 
dividing  that  State  into  election  districts,  and 
among  other  things  provided  that  the  city  and 
county  of  Baltimore  should  form  one  district,  and 
return  two  representatives  to  the  Congress  of  the 
United  States,,  one  of  whom  should  reside  in  the 
city,  and  the  other  in  the  county  of  Baltimore. 
The  candidates  at  a  subsequent  election  consisted 
of  two  gentlemen  who  were  residents  of  the 
county,  and  one  who  was  a  resident  of  the  city  of 
Baltimore.  The  election  was  determined  by  the 
election  of  the  candidates  residing  in  the  county 
of  Baltimore.  A  petition  was  presented  to  Con- 
gress by  the  unsuccessful  candidate,  who  resided 
in  the  city,  against  the  candidate  who  resided  in 
the  county,  upon  the  ground  that  the  member  re- 
turned was  not  duly  qualified  under  the  law  of 
the  State  in  such  cases  made  and  provided.  The 
section  was  referred  to  the  committee  of  elections 
in  the  House,  who  reported  unanimously  that 
the  member  elected  was  entitled  to  his  seat,  and 
that  the  State  law  which  increased  the  qualifica- 
tion, fixed  and  prescribed  by  the  Constitution  of 
the  United  States,  was  unconstitutional  and  void. 
With  all  the  consideration  that  I  have  been  able 
to  give  this  subject  in  the  brief  time  I  have  had 
to  examine  it,  I  am  of  opinion  that  the  limita- 
tion proposed  by  the  section  as  reported  by  the 
committee,  namely,  "  that  no  member  of  the  Le- 
gislature of  this  State  shall  receive  an  appoint- 
ment to  the  Senate  of  the  United  States,"  is  un- 
constitutional, and  ought  to  be  stricken  out. 

Mr.  O'CONOR  said  that  no  man  could  deny 
that  it  would  be  highly  indiscreet  at  any 
time  in  the  legislature  of  the  State,  to  elect  one 
of  their  own  body  to  the  place  of  Senator  in  Con- 
gress, and  consequently  if  it  is  intended  to  insert 
in  this  Constitution  a  quantity  of  advice,  for  the 
good  government  and  good  conduct  of  our  legis- 
lature, he  had  no  objection  to  the  insertion  of  this 
provision.  If  this  clause  was  to  act  merely  by 

30 


way  of  advice — of  injunction,  and  not  to  have 
the  force  or  obligation  of  a  law,  then  he  had  no 
objection  to  it,  but  if  it  was  intended  to  be  in 
serted  as  a  binding  and  obligatory  law  then  he 
had  a  great  objection  to  it,  and  should  vote 
against  it.  On  the  first  point,  it  was  proper  to 
say,  our  Constitution  ought  not  to  contain  only 
mere  advice;  it  should  contain  nothing  which 
would  not  have  the  force  and  obligation  of  a  law, 
because,  as  has  been  said,  every  thing  in  the  nature 
of  a  law  should  have  force  and  binding  obligation; 
and  nothing  should  be  put  in  the  form  or  guise  of 
a  law,  and  be  placed  in  company  with  the  bind- 
ing laws  of  the  country,  that  was  mere  advice,  in- 
capable of  being  enforced,  and  its  violation  at- 
tended with  no  consequences.  Therefore,  al- 
though he  had  no  objection,  should  the  policy  be 
introduced,  of  putting  advice  in  our  Constitution 
instead  of  obligatory  laws,  to  this  particular  case, 
he  begged  to  enter  his  protest  against  a  departure 
from  that  general  system  which  had  obtain- 
ed in  general  legislation  in  this  respect.  This 
clause  he  apprehended  if  inserted  would  be  whol- 
ly without  force.  In  the  first  place,  how  would 
the  question  rise  in  case  the  legislature  saw  fit  to 
violate  it  ?  It  could  only  rise  under  the  govern- 
ment of  the  United  Stales,  and  would  present  it- 
self as  a  question  to  be  determined  by  the  U.  S. 
Senate,  under  the  5th  section  of  the  first  article 
of  the  Constitution  of  the  United  States,  which 
declares  that  "  each  House  shall  be  the  judge  of 
the  elections,  returns  and  qualifications  of  its 
own  members."  In  case  our  State  legislature 
were  to  elect  as  a  member  of  that  Senate,  one  of 
their  own  body,  the  question  under  this  section 
might  rise  on  a  petition  against  his  admission  to 
a  seat  in  that  body,  and  he  would  ask  of  those  in 
favor  of  retaining  this  addition  to  the  old  Consti- 
tution, whether  they  meant  to  assert  that  the  Se- 
nate of  the  United  States  would  preclude  such  a 
person  from  taking  a  seat  in  that  body,  provided 
he  was  elected  in  due  form  by  the  legislature  of 
the  State  ?  He  had  not  yet  heard  the  assertion  or 
the  venture  of  a  doubt  but  what  that  Senate 
would  permit  such  an  individual  to  take  his  seat. 

Mr.  LOOMIS  :     They  would  not.    • 

Mr.  O'CONOR  said  that  the  position,  in  his 
humble  judgment,  was  unsound,  and  he  thought 
that  the  gentleman  was  the  only  man  who  had 
attempted  to  take  that  ground.  He  knew  that 
the  gentleman  from  Dutchess  (Mr.  RUGGLES,) 
had  shown  a  disinclination  to  place  it  upon  that, 
and  had  assumed  another  ground.  His  colleague 
(Mr.  JOKES,)  who  last  addressed  the  House,  has 
presumed  a  case  of  a  gentleman  who  attained  the 
age  of  40  years,  and  who  had  been  elected  under 
a  law  forbidding  the  election  of  a  man  not  40.  It 
was  not  a  proper  case — the  one  he  should  have 
presented  was  this  :  Suppose  that  our  Constitu- 
tion required  40  years  of  age,  ten  years  more  than 
the  Constitution  of  the  United  States,  and  we 
were  to  elect  a  person  aged  35,  in  that  case  would 
the  Senate  of  the  United  States  refuse  him  his 
seat  ? 

Mr.  JONES  said  thai  would  depend  entirely  on 
the  fact  whether  our  con.ititution  was  in  conflict 
with  lhatnt  the  United  States  in  thai  respect. 

Mr.  O'CONOR  stated  ihat  the  gentleman  pre- 
sented the  case  in  an  easier  positiou  than  n  really 
was,  and  the  case  he  (Mr.  O'C.)  presented  would 


442 


really  raise  the  question.     And    the   supposition 
was  that  inasmuch  as  these  superadded  qualifica- 
tions might  stand  together  witn  the  qualifications 
required  Dy  the  Constitution  of  the   U.  S.,  thai 
therefore  the  U.  S.  Sena'e  would  not  only  execute 
the  constitution  of  the  U.  S.  by  requiring   all  ire 
qualifications    there     pit-senled,   but    also    t host- 
presented  by    the    Constitution  of  our    State.— 
He    humbly    conceived  it    would    not;  and    for 
these    reasons    it    had    been  well    said     by  the 
highest  authority  that  when   two  legislative  pow- 
ers, one  of  higher  and  the  other  of  lower  authority 
undertake  to  legislate    upon   the  same   subject, 
that  the  legislation  of  the  interior  authority  must 
necessarily  be  void.  When  subjects  are  legislated 
upon    by  any  legislative   power  we  learn  and  un- 
derstand the  will  ol   the  law  giver,  as  much  b> 
perceiving  what   he  has  not  done,  as  by  reading 
that  whicn  he   has  done.     Now    in  this  case  ihe 
constitution  of  the  United  States,  has  enacted  that 
the  full  age  of  thirty  years  is  requisite  in  a  senator, 
and   the  same  law   which  declares  that,  declare- 
that  no  greater  age  is  requisite  in  order  to  secure 
all  the  maturity,  according  to  the  judgment  of  the 
Constitution  necessary  in  a  Senator.     So  as  to  the 
nine  years'  residence,  and  so  in  relation  to  all 
other  qualifications.     If  others  had  been   deemed 
requisite  they  would  have  been  defined,  each  and 
all  of  them.  It  would  be  observed  that  not  only  had 
these  qualifications  been  prescribed  in  the   Con- 
stitution of  the  U.  S.  but  that  it  also  directed  that 
each  house  should  be  the  sole  judge  of  the  elec- 
tion and  qualification  of  its  members.     It  was  al- 
so prescribed  in  the  4th  section  of  the  first  article 
of  that  Constitution  that"  the  times,  places   and 
»*  manner  of  holding  elections  for   Senator   and 
"  Representatives,  shall  be  prescribed  in  each 
•«  State  by  the  legislature  thereof,  but  the   Con- 
«*  gress  m^y  at  any  time,  by  law  make  or  alter 
"  such    regulations     except    as    to    the    places 
«'ul  clioosli.^  benatois."   1  hey  thus  reserve  to  them- 
selves the  whole  control  over  the  matter.     In  the 
fiist  place  the  qualifications  are  defined  with  great 
perspicuity,  and  in   the  second    place  they  retain 
complete  and  permanent  control  as  to  the  mani.er 
of  choice,  except  as  to  the  place    where  the  Leg- 
islature shall  sit— and  finally,  it  would  be  obsei v 
ed  that  each  house  has  the  power   ot  judging  re- 
specting the  qualifications  of  its  members.     Noih- 
i,,g  therefore  could   be  plainer,  in  hi*  judgment, 
than  that  the  Government  of  the  U.  S.  had  taken 
to  themselves   the  whole  subject  and  most  neces- 
sary was  it  tor  them  to  do  so.      A'a  was  well  ob- 
served by  his  colleague,  Mr.  WHITE,  every  govern- 
ment must  be  allowed  ihe  power  and  right  of  sup- 
porting and  sustaining  itself,       k  must    have  all 
the  functions  necessary  to  create  its   own  depart- 
ments,  &c.       Otherwise  it  would    not  be  a  Gov- 
ernment.    Therefore  it  was  with   great   propriety 
that  the  Government  of  the  U.  S.  declined  to  give 
to  the   States  any  power  over  the  subj.-ct,  i-xcept 
it  be  in  subordination  and    obedience  to  the  Con- 
stitution ot  the  U.  S.     They  leaving  Ihe  matter  to 
the  action  in  the  first  instance  ol    the  States,  but 
if  they   did  not  do   all  that  was   necessary  for  the 
purpose   of  re-supplying  this  department  of  the 
U    S  Government,  u  can   doit   itself.       All  the 
po'wer  that  was  left  to  the   Stales,  was  to  have  or 
not  to  have  a  legislature.     If  they  have  one,  they 
have  the  power  and  can  exercise  it  under  no  other 


restrictions  than  these  presented  by  tneU.  S.  Con- 
stitution in  creating  and  appointingSenators.  Upon 
this  subject,  he  could  entertain  no  riouh',  and 
he  could  hardly  bring  himself  to  the  belief  that 
any  gentleman  would  have  a,  serious  doubt  upon 
the  subject,  except  for  a  case  occurring  with- 
in our  own  experience,  where  the  passions  and 
emotions  of  honorable  men  were  inflamed  by  the 
performance  of  an  act  by  the  legislature,  highly 
indiscreet,  improper,  and  well  calculated  to  ex- 
cite those  feelings,  and  the  memory  of  which 
still  continued  to  do  so.  It  was  said  by  lawyers 
that  bad  cases  made  bad  precedents.  They  in- 
flame the  passions  and  lead  us  to  act  not  in  con- 
formance  to  law  but  tc  the  dictates  of  a  high 
and  honorable  indignation.  And  we  should  be 
cautious,  how  we  permitted  those  emotions  to  in- 
duce us  to  engraft  on  the  Constitution  a  provision 
that  would  remain  there  as  a  reproach  on  our 
wisdom  and  discretion.  We  ought  not  to  make  a 
law  which  would  not  be  binding  and  obligatory 
somewhere.  Having  shown  that  the  government  of 
the  United  States  would  not  pay  the  least 
attention  to  the  qualifications  imposed  by  this 
State,  he  would  call  the  attention  of  mem- 
bers to  the  other  side  of  the  question,  as 
presented  by  the  gentleman  from  Dutchess. — 
That  gentleman  declined  to  enter  the  lists,  and  to 
suggest  as  broadly  as  did  the  gentleman  from 
Herkimer  that  the  Senate  of  the  United  States 
would  enforce  our  superadded  qualifications, 
yet  he  supposed  that  although  it  would  not  be 
binding  on  the  Senate  of  the  United  States  that 
we  might  enforce  it  by  the  laws  of  our  own 
State — making  it  a  penal  offence  against  the 
State  for  the  Assembly  to  dare  to  vote  for  one  of 
themselves,  or  to  accept  office.  If  that  was  the 
way  we  were  to  enforce  it,  what  kind  of  penalty 
would  we  impose, — a  fine  of  a  few  dollars,  or  not  as 
but  merely  a  misdemeanor,  but  as  a  felony  punish- 
able with  imprisonment,  or  with  death  if  gentle- 
men pleased.  Let  us  see  then  what  a  state  of 
affairs  we  would  have,  if  a  member  of  the 
Legislature  could  be  rightfully  elected,  accord- 
ing to  the  Constitution  of  the  United  States, 
a  Senator  in  Congress.  The  United  States 
Senate  would  declare  him  to  have  been  legally 
elected  a  member  of  that  body,  but  the  judicial 
department  of  the  State  of  New-York  acting  un- 
der this  Constitution  and  the  laws,  would  declare 
that  by  voting  for  himself  and  taking  the  office 
he  was  guilty  of  a  felony,  and  liable  to  be  con- 
victed and  sentenced  to  State  prison. 

Mr.  RUGGLES :  Does  the  gentleman  under- 
stand me  as  using  any  such  extravagance  ? 

iVir  O'CONOK  said  not;  but  be  understood  the 
gentleman  to  siy  that  it  might  be  made  penal  for 
the  legislature  to  vote  one  of  their  own  body  into 
Congie<s,  and  he  wi>s  only  f»llowing  the  proposi- 
tion out  to  its  lull  extent.  If  we  could  make  a 
law,  we  could  punish  its  violation  by  any  penally 
we  might  impose.  But  without  carrying  the  mat- 
ter to  this  extravagant  length,  which  only  served 
to  show  the  eX'ravagance  of  the  piopocutiob  in 
more  glaring  colots,  and  supposing  that  only  a  lit- 
tle ignominy  would  be  heaped  upon  them,  would 
it  be  proper  that  such  a  collision  should  be  produ- 
ced between  the  Constitution  of  the  State  and  that 
of  the  United  States.  That  a  man  was  duly,  regu- 
larly and  properly  elected  as  to  be  admitted  to  a 


443 


seat  in  the  Senate  according  to  the  judgment  of 
that  body,  to  whose  judgment  the  question  is  sub- 
milled  by  the  Constitution  of  the  U  S-,  and  yet  be 
judged  guilty  of  a  misdemeanor  and  liable  topun- 
i-ihmeni  by  t  h at  of  th i^si ate.  Such  a  collision  outjht 
not  io  exist,  and  conceiving  therefore  in  the  first 
place,  that  we  should  put  nothing  in  the  consti- 
tution which  had  not  the  full  force  and  obligation 
of  law — that  nothing  WAS  law  which  could  not  be 
enforced  by  sanctions  or  penalties — and  that  the 
whole  business  of  enforcing  the  laws  in  relation 
to  the  qualifications  of  Senators,  must  necessarily 
belong  to  the  government  of  the  U.  S.,  unless  in- 
deed we  are  willing  to  permit  a  collision  and  con- 
flict of  the  kind  he  had  leferred  to,  he  hoped  that 
uninfluenced  by  the  conduct  of  the  legislature  on 
a  former  occasion — he  hoped  that  this  subject 
would  be  left  where  it  ought  to  be,  under  the  sole 
and  exclusive  control  and  government  of  the  Uni- 
ted States.  Under  this  view  of  fh«--  matter  he  sub- 
mitted that  it  was  most  inexpedient  to  insert  this 
restrictive  proposition 

Mr.  WATERBURY  briefly  supported  the  pro- 
position. 

Mr.  SIMMONS  further  opposed  it,  denying 
that  there  was  a  single  state  constitution  which 
had  such  a  restriction  as  this. 

Mr.  VAN  SCHOONHOVEN  argued  in  favor  of 
the  retention  of  the  provision, 

Mr.  TALLMADGE,  in  reply  to  Mr.  SIMMONS, 
referred  to  the  constitutions  of  Florida,  Texas, 
and  Mississippi,  as  containing  similar  provisions 
tb  the  one  reported  here.  He  also  argued  in  fa- 
vor of  the  retention  of  the  clause. 

The  question  being  then  taken,  the  motion  to 
strike  out  was  negatived  by  a  strong  vote. 

And  the  Convention  adjourned. 

TUESDAY,  (47M  day,)  July  28. 

Prayer  by  the  Rev.  Mr.  KIP. 

Mr  SHAW    presented    tne   petition  of  W.  T. 
Wuiden,  presenting  the  plan  of  a  new  Court,  &c. 
containing  also  certain  facts  as  to  the  proceedings 
of  the  Common  Ple^s  of  Cayuga  county. 
THE  MILITIA,  fcc. 

Mr.  WAKD.Jrom  (he  committee  on  military  af- 
faiis,  submitted  the  following  report: — 
ARTICLE  . 

$1.  Militia  office r-f  shall  be  chosen  or  appointed  as  fol- 
lows: Captains,  Subalterns  and  Non-Coinmissioned  offi- 
cers shall  be  chosen  by  the  written  votes  of  the  members 
of  the  respective  companies.  Field  officers  of  regiments 
and  separate  battalions  by  the  written  vott-s  of  the  com- 
missioned  officers  of  the  respective  regiments  and  battal- 
ions. Brigadier  Generals  and  commanding  officers  of  reg- 
iments  or  separate  battalions  sh;dl  appoint  the  starfofficers 
to  their  respective  divisions,  brigades,  regiments  or  sepa- 
rate battalions 

§  2  1  he  Governor  shall  nominate,  and  with  the  consent 
of  the  Senate,  appoint  all  Major  Generals,  and  the  Commis- 
sary General.  The  Adjutant  General  and  other  chiefs  of 
stafl  departments,  and  the  aid-de-camp  of  the  commander 
in  chiet.  shall  be  appointed  by  the  Governor,  and  their 
commissions  shall  expire  with  the  time  lor  which  the  Go 
vernor  shall  have  been  elected  The  Commissary  Gene- 
ral shall  hold  his  ..ffice  for  two  years. 

§  3  The  Legislature  shall  by  law  direct  the  time  and 
manner  of  electing  militia  officers,  and  of  certitying  their 
elections  to  the  Governor. 

$  4.  The  commissioned  officers  of  the  militia  shall  be 
commissioned  by  the  Governor;  and  no  commissioned  of- 
ficer shall  bo  removed  from  office  unless  by  the  Senate  on 
the  recommendation  of  the  Governor,  stating  the  grounds 
on  which  such  removal  is  recommended  or  by  the  deci- 
sion *f  a  Court  Mirtfal  pursuant  to  Ivv.  The  pre?ent  offi- 


cers of  the  militia  shall  hold  their  commissions  subject  to 
removal  as  before  provided. 

^  5.  In  case  the  mode  of  election  and  appointment  of  mi- 
litia officers  hereby  directed,  shall  not  be  found  conducive 
to  the  improvement  of  the  militia,  the  Legislature  may 
abolish  the  same  and  provide  by  law  for  their  appointment 
and  removal,  if  two-thirds  of  the  members  present  in  each 
House  shall  concur  therein. 

AARON  WARD,  Chairman. 

•  Mr.  WHITE  offered  a  resolution  of  inquiry  as 
to  the  propriety  of  a  provision  that  all  moneys 
that  now  are  or  hereafter  may  be  paid  into  the 
courts  of  law  or  equity,  shall  be  deposited  into 
the  State  Treasury  for  safe  keeping.  Agreed  to, 
Mr.  MANN  offered  the  following  resolution: 
Resolved,  That  the  Chancellor  of  this  State  be  request- 
ed to  direct  the  Register,  Assistant  Register  and  Clerks, 
to  furnish  to  this  Convention  the  separate  and  distinct 
items,  with  the  names  ol  all  the  estates,  heirs,  owners  and 
parties  claiming  and  interested,  for  whose  benefit  and  for 
what  purposes  the  funds  are  held,  whether  in  trust  or  oth 
erwise,  with  the  dates  of  the  receipt,  of  all  funds,  compris- 
ing and  making  the  aggregate  amounts  reported  or  fur- 
nished to  this  Convention,  by  the  Chancellor,  as  subject 
to  the  order  and  control  of  the  Court  of  Chancery  up  to 
January,  1846,  which  aggregate  amounts  were  furnished 
by  the  Chancellor  in  compliance  with  the  resolution  offer- 
ed by  Mr.  Khoades  and  adopted  by  this  Convention  June 
26th  inst. 

Mr.  NICOLL  hoped  the  resolution  would  not 
pass.  It  was  of  an  inquisitorial  character  $  would 
give  a  great  deal  of  trouble  in  furnishing  there- 
quisite  information  as  to  what  estates,  persons,  &c. 
&c.  had  money,  and  make  a  voluminous  book; 
and  all  without  any  obi  responding  benefit. 

Mr.  RUGGLESdid  not  object  because  it  was  of 
an  inquisitorial  character,  but  it  would  entail  such 
a  vast  amount  of  labor  on  the  chief  officer  of 
that  court;  it  would  make  a  large  book,  and  he 
could  not  see  what  use  the  committee  could  make 
of  the  information  when  they  got  il. 

It  was  laid  on  the  table  for  the  present,  with 
the  consent  of  the  mover. 

APPORTIONMENT,  &c.,    OF    THE  LEGISLATURE. 

The  committee  of  the  whole,  Mr.  PATTER- 
SON in  the  chair,  resumed  the  consideration  of 
the  report  of  committee  No.  1. 

Mr.  J.  J.  TAYLOR  moved  to  amend  so  as  to 
declare  that  all  appointments  of  members  of  the 
legislature   to  offices   prohibited  in   this  section, 
and   all  votes  given  for  them,  shall  be  void. 
Adopted. 

The  last  section  was  then  read,  as  follows  : 

Substitute  lor  .-ectioiis  15  nnd  16,  KO  far  as  relates  to  Se 
nators  and  members  ot  Assembly,  the  lollowing: — 

<}15.  The  first  el  ction  of  Scfiritois  and  members  of  As 
sembly,  pursuant  to  the  provisions  of  this  Constitution, 
shall  W  held  on  the  firs'.  Tuesday  succeeding  the  first  Mon- 
day of  November  one  thousand  eight  hundred  and  forty- 
seven,  and  all  subsequent  elections  shall  be  held  on  the 
first  Tuesday  succeeding  the  first  Monday  ol  November  in 
each  year,  unless  otherwise  directed  by  the  Legislature. 
The  Senators  and  meml'ers  of  Assembly  who  may  be  in 
office  on  the  first  day  ot  January  one  thousand  eight  hun- 
dred and  forty-seven,  shall  hold  their  offices  unu'l  ihe 
thirty-first  day  ot  December  following,  and  no  longer. 

The  same  was  agreed  to  after  a  verbal  correc 
tion  by  striking  out  the  word  "  first"  before  the 
word  "  Tuesday"  in  two  lines. 

Mr.  HARRISON  moved  to  strike  out  "  suc- 
ceeding" and  insert  "  following."  Rejected. 

Mr.  HUNT  moved  to  strike  out  of  the  8th  line 
of  the  6th  sectio-  the  words  "  not  taxed,"  so  that 
all  persons  of  color  should  be  excluded  from  the 
basis  of  representation.  Lost,  26  only  voting 
therefor 


444 


The  committee  returned  to  section  seven. 

The  section  as  amended  was  then  read  : 
$  7.  The  members  of  the  Assembly  shall  be  apportioned 
among  the  several  counties  ot  the  State,  as  nearly  as  may 
be,  according  to  the  number  of  their  respective  inhabi- 
tants excluding  aliens  and  persons  of  color  not  taxed;  and 
shall  be  chosen  by  single  districts.  The  Boards  of  Super- 
visors in  each  of  the  counties  of  this  State  shall,  on  the 
first  Tuesday  of  January  next,  meet  and  proceed  without 
adjournment,  except  from  day  to  day,  to  divide  their  re- 
spective counties  into  as  many  districts  of  contiguous  ter- 
ritory, and  as  nearly  equal  in  population  as  may  be,  as 
each  county  respectively  is  no.w  by  law  entitled  to  mem- 
bers of  Assembly,  to  be  called  assembly  districts  and 
shall  number  the  same  in  each  county  entitled  to  more 
than  one  member,  frum  No.  I.  to  the  number  such  county 
is  entitled  to  members  inclusive  ;  each  of  which  districts 
shall  choose  one  member  of  Assembly.  Each  Assembly 
district  shall  contain  as  nearly  as  may  be,  an  equal  num- 
ber of  inhabitants,  and  shall  consist  of  contiguous  territo- 
ry, and  no  town  shall  be  divided  in  the  formation  of  an 
Assembly  district.  An  apportionment  oi  members  of  As- 
sembly among  the  several  counties  shall  be  m;ide  by  the 
Legislature  at  its  first  session  after  the  return  of  every 
enumeration,  and  the  board  of  supervisors  in  each  county 
entitled  to  more  than  one  member  shall,  at  such  time  as 
shall  be  prescribed  by  law,  so  alter  the  Assembly  districts 
as  to  conform  in  number  to  the  said  apportionment,  in  the 
manner  herein  before  provided;  and  the  apportionment 
and  the  districts  shall  remain  unaltered,  until  another  enu- 
meration shall  have  been  taken.  Every  county  heretofore 
represented  in  the  Assembly  by  one  or  more  members, 
shall  continue  to  be  entitled  to  a  member,  but  no  county 
shall  hereafter  be  created  or  entitled  to  a  member,  unless 
its  population  shall  be  equal  to  the  ratio  ol  population  re- 
quisite for  a  member. 

The  following  substitute,  offered  by  Mr.  HAR- 
RIS, was  then  read. 

^7.  The  members  of  Assembly  shall  be  apportioned  among 
the  several  counties  of  this  State,  BY  THK  LKGISLATURK,  as 
nearly  as  may  be,  according  10  the  num'erof  their  re- 
spective inhabitants,  excluding  aliens,  and  persw us  of  color 
not  taxed,  and  shall  be  chosen  by  single  districts. 

The  several  boards  of  supervisors  in  such  counties  of 
this  State,  as  are  now  entitled  to  more  than  one  member 
of  Assembly,  sball  assemble  on  the  first  Tuesday  of  Jan 
uary  next,  and  divide  their  respective  counties  into  Assem- 
bly districts  eqvr-1  to  the  number  of  members  of  Assembly 
to  which  such  counties  are  now  severally  entitled  by  law, 
and  shall  cause  to  be  filed  in  the  office  ot  the  Secretary  of 
State  and  the  cleric  if  their  respective  counties,  a  descrip- 
tion of  such  Assembly  districts,  specifying  the  number  ol 
each  district  and  the  population  tnereof  according  to  the 
last  State  enumeration,  as  near  as  can  be  ascertained. 
Each  Assembly  district  shall  contain  as  nearly  as  may  be 
an  equal  number  of  inhabitants,  excluding  aliens  and  per- 
sons of  color  not  taxed,  and  shall  consist  ot  contiguous 
territory,  but  no  town  shall  be  divided  in  the  formation  of 
Assembly  districts. 

The  Legislature,  at  its  first  session  after  the  return  of 
every  enumeration,  shall  re-apportion  the  members  of  As- 
sembly among  the  several  counties  of  this  State,  in  man- 
ner aforesaid  ;  and  the  board  01  supervi-ors  in  such  coun- 
ties as  may  be  entitled,  under  su  h  re-apportionment,  to 
more  than  one  member,  shall  assemble  at  such  time,  as  the 
Legislature  making  such  re-apportionment  shall  prescribe, 
and  divide  such  counties  into  Assembly  districts  in  the 
manner  herein  directed,  and  the  apportionment  and  dis- 
tricts so  to  be  made,  shall  remain  unaltered  until  another 
enumeration  shall  be  taken  under  the  provisions  of  the 
I  receding  section. 

fcvery  county  heretofore  represented  in  the  Assembly 
by  one  or  more  members  shall  continue  to  be  entitled  to  a 
member,  but  no  county  shall  hereafter  be  created,  unless 
its  population  shall  be  equal  to  the  ratio  of  population  re- 
quisite lor  a  member. 

Mr.  HUNT  moved  tostrikf  out  the  words  «'  not 
taxed,"  from  this  section.      H<;  said    that  .ill  tax 
are  paid  by  the  consumer,  and  consequently  every 
person  pa>s  taxes  unless  he  subsists  by  robbery  o 
charity. 

Lost — ayp«  20,  noes  not  c minted 

Mr    HARRIS'S  jinienJiNpnt   was  ihen  carried. 

Mr.  TAYLOR  said    t^.it    bv  and  by  in  Conven. 


tion,  he  would  move  to  alter  the  time  when  the 
Supervisors  should  meet  to  do  this  districting. 

Mr,  LOOMIS  moved  to  strike  out  in  fourteenth 
line  the  words  "and  the  population  thereof." 

Mr.'RUGGLES  suggested  instead,  1o  add  after 
the  word  "  thereof,"  the  words,  "  according  to 
the  last  preieding  State  enumeration."  This 
v^ould  enable  all  to  see  what  that  enumeration 
was,  and  whether  the  districting  had  been  done 
with  fairness. 

Mr  STOW  s^id  that  as  they  were  to  divide 
towns  and  wards,  it  'vas  irapossib'e  for  them  to 
have  a  correct  data  from  the  last  census  ;  there 
should  be  some  rule  adapted  in  respect  to  the  ter- 
ritory in  cities;  either  election  districts  or  some 
other  plan 

Mr.'W.  H.  SPENCER  said  that  thc-ie  would  be 
a  great  difficulty  w  here  towns  or  parts  of  towns 
had  been  set  of!" since  the  last  ci-nsbs. 

Mr.  RUGGLES'S  amendment  wa<  then  adopted 

It  was  moved  to  amend  the  30ih  line  ••  but  no 
new  county  hereafter  created  shall  be  entitb  d  ta 
i  member  unless  its  population  shall  be  equal,  &c. 

Mr.  TAYLOR— Why  not  take  Ihe  old  Consti- 
ution  as  it  stands. 

Mr.  STOW— There  is  no  enumeiation  by  elec- 
toral districts,  nor  less  than  by  towns  and    wards; 
or  can  the  supervisors  have,  any  correct  data    by 
which  to  district  the  counties. 

Mr.  SHEPARD  moved  to  strike  out  ot  the 
30th  line  the  words  "  or  entitled  to  a  member." 

This  was  accepted,  and  adopted. 

Mr.  KIRKLAND  moved  to  strike  out  in  the  1st 
line,  thp  words  "  shall  be,"  and  insert  "  as  now." 

Mr.  KENNEDY  suggested  to  insert    the  words 

by  law"  in  the  llth  line,  after  the  words  "en- 
titled." 

Mr.  KIRKLAND  accepted  this;  and  it  was  a- 
dopted. 

Mr.  TAYLOR  moved  to  insert  at  the  end  of  the 
!5ih  line,  the  words  '•  excluding  aliens,  and  per- 
sons  of  color  no!  taxed." 

This  \va-   -trreed  to. 

Mr.  TALLMADGE  moved  to  amend  the  30th, 
31st,  and  32d  lines  :  that  no  county  hereafter 
created  shall  be  entitled  to  a  member  unless  its 
population  shall  be  equal  to  the  ratio  of  popula- 
tion requisite  for  a  member.  This  would  reserve 
the  right  for  the  Legislature  to  district  the  remote 
counties  for  their  domestic  convenience,  in  re- 
gard to  their  police  arrangements. 

Mr.  RICHMOND  objected  to  this  ;  he  said  the 
gentleman  wished  to  have  this  so  arranged  that 
if  any  small  district  hereafter  shall  not  be  entitled 
to  form  a  county  that  the  Legislature  may  make 
one  He  did  not  want  any  measure  of  this  kind 
which  was  to  benefit  small  new  towns  or  villages 
to  rob  the  agricultural  part  of  the  county. 

Mr.  TALLMADGE  said  that  the  gentleman  had 
misrepresented  him;  but  this  was  so  much  a 
habit  that  he  supposed  it  was  unavoidable. 

Mr  RICHMOND  wished  to  explain. 

Mr.  TALLMADGE  would  hear  no  explanation. 
Gentlemen  seemed  determined  to  misquote  him  ; 
and  he  would  not  put  up  with  it,  but  would  resent 
it  order  or  no  order.  They  ought  to  treat  each 
other  as  gentlemen. 

Mr.  RICHMOND  said  he  did  net  intend  to 
impute  any  improper  motive  to.  the  gentleman. 
It  v.a9  the  farthest  from  his  thoughts. 


445 


Mr  TALLMADGEsuid  he  was  not  will  n*  tc 
he  held  up  as  making  assertions  and  holding 
opinions  which  he  never -entertained;  and  thus 
go  down  to  tutniiiy  in  a  lalse  position. 

Mr.  TALLMADGE'S  amendment  was  lost. 

Mr.  STETSON  offered  the  following  amend- 
ment: 

Add  aft9  the  27th  line:— 

••But  the  Legislature  mny   at  any  time  annul  the  divis 
ion  of  a  county  made   by  supervisors,  it  it  shall  be  made  to 
appear  that  the  said  county  has  been  divided   with  any 
reference  to   political  or  partizan  objects,  and  shall  ther 
upon  re-divide  the  same." 

Mr,  STETSON  said  the  adoption  of  this  would 
only  be  the  exercise  of  a  wise,  prudent  arid  prop, 
er  precaution,  if  you  should  re  divide  the  count) 
lines,  do  as  to  make  party  lines,  &c;  and  it  would 
be  perfectly  harmless  if  they  were  not  so  divided. 
If  the  supervisors  should  divide  the  counties  lor 
partizan  purposes  then  it  ought  to  he  corrected; 
and  if  ihe  Legislature  cannot  correct  this,  then 
we  have  a  very  serious  evil  that  is  remediless. — 
And  unless  this  body  shall  make  some  such  an 
amendment  as  the  provision  that  he  had  proposed, 
he  should  believe  that  there  was  a  desire  in  the 
Convention  to  see  a  system  of  (Jerrymandering 
carried  our;  and  this  was  a  matter  that  created 
more  uneasiness  and  disquiet  over  the  country 
than  anything  that  had  occurred  before.  He  was 
anxious  to  have  nngle  districts,  provided  that  the 
division  could  be  made  with  perfect  lairness  and 
impartiality. 

Mr.  BASCOM  moved  to  amend  the  amendment 
by  striking  out  the  word  "Legislature"  and  in- 
sert "  Supreme  Court."  L'-st. 

The  amendment  of  Mr.  STETSON  was  rejected. 

Mr.  RHOAPES  movtd  to  amend,  by  adding  af- 


ter the  WLI-U  "  districts"  in  the  17th  line,  the  fol- 
io, ving : — 

"  Members  of  Assembly  may  be  chosen  from  any  por- 
tion ot  the  county  in  which  such  districts  are  situated,  but 
*hail  be  n  iid^nts  ol  the  county." 

Mr. R.  said  there  was  now  no  prohibition.  We 
may  go  out  ot  the  county  lor  a  member — but  the 
habit  of  riot  doing  .*o  had  almost  acquired  the 
force  of  law  He  desired  that  if  the  inhabitants 
of  a  coun'y  desiied  to  go  out  of  an  election  dis- 
trict in  search  of  a  candidate,  that  they  should 
have  a  perfVct  liberty  to  do  so.  'I  hat  they  should 
have  the  whole  range  of  the  coumy  to  choose  a 
candidate  for  the  Assembly  from. 

Mr.  NICHOLAS  said  that  this  would  destroy 
the  object  of  single  districts. 

Mr.  RHOADES'  amendment  was  lost. 

Mr.  HUN  I1  moved  to  amend  so  as  to  allow  the 
division  in  the  city  of  New  York  to  be  m..de  by 
the  city  Convention  m.w  elec:ed,  instead  of  by 
the  supervisors  of  said  city.  He  wished  the  Con. 
vention  in  the  city  of  N.  Y.  to  make  the  Assembly 
disfrir-l*,  as  they  wore  about  to  make  a  new  division 
of  ward  lines.  The  board  of  supervisors  in  the 
city  was  differently  constituted  from  most  of  the 
boards.  A  supervisor  represented  a  ward  ;  he 
was  an  alderman  ;  and  thus  a  ward  with  only  6000 
population  had  a  voice  in  the  board  equal  to  a 
ward  that  had  30,000  inhabituats.  Now  the  city 


convention   represents  the 
parties  in  the  city. 


whole   city,  and   all 


Mr.  JONES  said  that  the  Mayor  and  Recorder 
were  added  to  the  board;  and  as  it  was  so  differ- 
ently constituted,  there  was  no  impropriety  in 


haying  this  exception  made  relative  to  the  city  of 
New- York. 

This  was  lost — ayes  34,  noes  35. 
Mr.  HUNT  insisted  that  the  question  was  not 
understood. 

Mr.  KENNEDY  moved  to  strike  out  in  the  9th 
line  the  words,  "  a  member  of."  Adopted. 

Mr.  KENNEDY  moved  to  add  after  word 
"  town,"  in  the  16th  line,  the  words,  "or  elec- 
tion district." 

Mr.  MANN  suggested  to  add,  "  or  election 
district  in  cities"  because  there  might  be  election 
districts  in  some  of  the  towns  of  the  state. 

Mr.  KENNEDY  accepted  this  so  as  to  read 
virtually  that  no  election  district  should  be  divi- 
ded in  the  formation  of  an  Assembly  district. 

Mr.  STOW  moved  to  amend  this  by  adding  to 
it  the  words  "  as  they  existed  at  the  last  enume- 
ration." He  wished  this  to  refer  to  the  districts 
as  they  existed  at  the  last  census. 

Mr.  STOW  contended  that  if  they  should  decide 
that  they  would  not  divide  the  election  districts  as 
they  existed  at  this  day,  it  would  have  no  good 
practical  result;  for  they  had  not  the  means  of 
ascertaining  the  number  of  persons  in  these  dis- 
tricts at  the  present  time.  In  Buffalo  since  the 
last  census  there  have  been  new  election  districts 
marked  out;  and  they  had  there  no  data,  from  any 
existing  census  to  tell  what  was  the  amount  of 
population  in  those  districts  at  the  present  day. 
The  knowledge  of  the  whole  subject,  in  the  ag- 
gregate, would  not  aid  them  at  all.  They  had 
nothing  whatever  to  aid  them  or  guide  them,  as  a 
data,  in  making  their  calculations,  but  the  last 
census  ;  and  therefore  under  those  circumstances 
they  must  take  the  election  districts  with  the 
population  as  it  was  given  by  the  last  enumera- 
:ion.  What  he  most  earnestly  desired  was  that 
whoever  had  the  laying  out  of  election  districts  or 
"  'pportionment  of  members  of  Assembly  should 
have  the  fullest  and  most  accurate  returns  of  the 
Dopulation  in  all  those  districts,  in  order  that  full 
'ustice  might  be  done  to  all  parties. 

Mr.  KENNEDY  said  that  the  election  districts 
n  the  city  of  New  York  were  laid  out  in  1842, 
wo  years  after  the  census  was  taken  ;  and  at  a. 
ime  when  the  population  of  those  districts  was 
lot  very  well  known. 

Mr.  MANN  :  -  Two  new  districts  were  made 
n  the  llth  Ward. 

Mr.  KENNEDY :  The  law  of  1842  provided 
or  the  laying  out  of  the  districts  in  sections  that 
hould  not  contain  over  500  voters.  The  com- 
missioners went  on  and  did  their  duty,  but  they 
could  not  so  divide  the  districts  as  to  reach  down 
to  any  thing  like  mathematical  certainty.  And 
the  result  has  been  very  unequal.  This  is  shown 
by  the  census  of  1845,  and  also  by  the  number  of 
votes  polled  in  November,  1844.  In  some  of  the 
election  districts  there  were  more  than  1000  votes 
polled,  where  it  was  originally  intended  that  the 
number  should  not  exceed  500.  In'  the  2d  dis- 
trict of  the  1st  Ward  there  were  1005  votes  poll- 
ed ;  in  the  2nd  district  of  the  2nd  Ward  there 
were  950  votes  polled;  in  the  2nd  district  of  the 
3rd  Ward  there  were  970  votes  polled  ;  in  the  9th 
Ward,  in  one  district  there  were  1U81  votes 
polled;  in  one  in  the  llth  Ward  there  were 
1187  and  in  another  966  votes  polled.  In 
several  of  tne  districts  there  were  over  10GU 


446 


voles  polled;  and  in  '2  districts  ofthe  16th  Ward 
there  were  over  1100  votes  polled.  And  every 
election  district  of  the  ciiy  has  cast  more  votes 
than  the  number  prescribed  by  law  except  some  5 
or  6.  And  one  of  the  principal  objects  of  the  city 
Convention,  now  sitting  in  New  York,  is  to  cor- 
rect these  evils  by  re-dividing  the  city.  One 
proposition  there  made  is  to  divide  the  city  into 
128  election  districts,  and  to  take  4  of  these  and 
make  a  ward;  and  they  also  have  thought  serious- 
ly about  so  re-arrangirm  the  wards  as  to  divide 
the  city  into  16  or  into  32  Wards.  The  delegates 
from  the  city  of  N.  Y  in  this  Convention  had 
nothing  to  do  with  this  system  of  single  districts, 
except  to  offer  their  opposition  fo  it  And  if  the 
Convention  was  determined  to  saddle  that  system 
on  to  the  city  of  N.  Y.  all  that  the  N.  Y.  city  dele 
gation  could  do  would  be  to  endeavor  to  make 
their  representation  as  equally  as  possible  in  their 
assembly  districts.  He  had  hoped  that  no  such 
restriction  as  that  proposed  would  have  been  out 
in,  unless  it  should  be  that  hereafter  no  elec- 
tion  district  shall  for  the  future  be  divided. — 
He  desired  especially  that  this  matter  might 
be  so  arranged  as  to  operate  only  on  the 
future  classification  of  their  election  districts, 
and  not  upon  the  past.  Otherwise  it  would 
subject  them  in  New- York  to  very  great 
difficulty.  The  wards  by  the  new  proposition  are 
to  be  cut  up  by  levies  not  now  known  to  any  of 
thn  election  districts ;  and  the  result  might  be 
that  a  person  might  be  found  voting  for  two  as- 
sembly tickets  at  one  and  the  same  election.  He 
hoped  they  would  not  adopt  any  plan  to  thwart 
the  valu  ble  intentions  of  the  present  N.  York 
city  convention. 

Mr.  MORRIS  remarked  that  the  16th  Ward  had 
also  been  divided  but  recently. 

The  amendment  of  Mr.  STOW  was  lost. 

The  amendment  of  Mr.  KENNEDY  was  then 
carried. 

Mr.  MURPHY  offered^  substitute  for  that  part 
of  the  section  which  provides  for  the  division  of 
the  ^Late  into  Assembly  districts  by  the  Supervi- 
sors. By  the  substitute  it  is  proposed  that  there 
should  be  elected  at  the  next  annual  town  meet- 
ings and  charter  elections,  one  commissioner  in 
each  election  district,  whose  duty  it  shall  be  to 
divide  the  counties.  Mr.  M.  said  that  he  was  op- 
posed entirely  to  sending  this  matter  to  the  board  of 
Supervisors.  For  it  would  be  putting  on  to  them  a 
duty  for  which  they  were  not  originally  designed 
by  the  people  when  they  were  chosen.  The  people 
ought  to  have  the  opportunity  to  select  their 
agents  with  a  special  reference  to  this  important 
work  of  dividing  the  state  into  assembly  districts. 
In  many  counties  of  the  State  there  was  the  most 
gross  inequality  with  regard  to  the  board  of  su- 
pervisors. In  Kings  county,  the  city  of  Brooklyn 
had  six  supervisors  in  that  board ;  the  rest  of  the 
county  had  another  six,  whilst  Brooklyn  had  nine 
tenths  of  the  entire  population  of  the  county. — 
What  he  desired  to  effect  was  an  equal  represen 
tation  .f  the  people  of  each  county. 

Mr.  KIRKLAND  opposed  this  amendment,  and 
contended  that  the  supervisors  ought  to  district 
the  State.  He  was  willing  to  trust  them. 

Mr.  WARD  doubted  whether  or  no  this  debate 
was  in  order ;  the  question  having  once  been 
definitely  decided. 


Mr.  RICHMOND  contended  the  system  pro- 
posed by  Mr.  MURPHY  would  operate  more  un- 
equally than  if  the  division  of  the  State  was  left 
to  the  board  of  supervisors. 

Mr.  WATERBURY  was  entirely  of  the  same 
opinion. 

Mr.  W.TAYLOR  said  that  the  proposition  of  Mr. 
MURPHY,  had  some  merits.  He  wanted  the  su- 
Dervisors  elected  with  a  view  to  this  very  busi- 
ness ;  for  with  a  decided  democratic  majority  in 
;he  State,  yet  a  majority  of  the  supervisors  were 

Mr.  WORDEN  said  this  proposition  would  not 
De  carried  out. 

Mr.  MURPHY  said  it  would  be  the  duty  of  the 
Legislature  to  provide  for  having  this  matter  car- 
ied  into  effect,  if  the  Convention  should  adopt  it. 

Mr.  VAN  SCHOONHOVEN  opposed  the 
amendment,  as  did  also  Mr.  COOK,— it  would 
create  a  large  body  of  700  or  800  new  officers. 

Mr.  MURPHY  would  so  modify  it  that  the 
towns  at  town  meetings  should  elect  these  com- 
missioners. It  would  be  the  most  feasible  plan 
to  get  a  full  and  fair  representation  of  the  people. 

Mr.  CROOKER  opposed  it.  It  would  be  a 
large  and  unwieldly  body.  Until  1840,  he  had 
never  heard  of  any  political  complexion  being 
given  to  any  of  those  in  the  board  of  supervisors. 

Mr.  BRUCE  hoped  the  amendment  would  not 
prevail.  We  had  so  far  proceeded  without  any 
demonstration  of  political  partizanship,  and  w«s 
it  not  desirable  to  carry  that  feeling  out  to  its  full 
extent,  so  that  the  s^me  feeling  might  pervade  the 
people  in  discussing  the  question  of  adopting  the 
Constitution.  Mr.  B.  advocaied  the  reference 
of  this  question  to  the  Boards  of  Supervisors. 

Mr.  CHATF1ELD  although  gratified  to  see  the 
absence  of  parlizanship  in  this  Come-ition,  and 
deeming  the  credit  of  it  due  to  the  dominant  par- 
ty, who  were  thus  voluntarily  throwing  away  the 
power  to  which  they  were  entitled,  still  was  not 
prepared  logo  to  the  length  that  some  appeared 
to  be  disposed.  For  this  reason  he  was  opposed 
to  that  most  miserable  of  all  absurdities  the  di. 
vision  of  counties  into  single  districts.  But  that 
having  been  adopted,  we  were  now  asked  to  make 
a  still  further  surrender  of  power,  by  giving  the 
formation  of  those  districts  into  the  hands  of  the 
boards  of  Supervisors,  a  majority  of  which  are  now 
Whigs.  To  be  sure  the  districts  were  required  to 
be  of  contiguous  territory,  but  that  would  have  a 
wide  latitude.  He  was  opposed  to  commuting 
any  sucn  power  to  these  boards,  and  would  raine 
his  voice  against  any  such  act.  If  the  counties  are 
to  be  divided  into  districts,  let  it  be  done  here. — 
The  question  being  taken,  the  amendment  of 
Mr.  MURPHY  was  rejected. 

Mr.  HARRIS  had  no  objection  to  the  amend- 
ment of  Mr.  KENNEDY  so  far  as  it  related  to  the 
city  of  New  York,  but  he  desired  to  see  it  amend- 
ed so  as  to  be  confined  to  that  city.  His  reasons 
tor  it,  he  thought  his  friend  from  Clinton  would 
appreciate  It  would  be  remembered  that  in  1512 
when  the  Congressional,  districts  were  formed  it 
became  very  important  to  accomplish  certain  pur- 
poses,  in  which  that  gentleman  was  interested  to 
some  extent,  that  Clinton  should  be  united  in 
some  way  to  Franklin.  That  would  be  contigu. 
ous  territory,  but  unfortunately  Essex  intervened, 
and  it  became  necessary  to  cut  ofl  part  of  th« 


447 


woo  is  ol  Hamilton   so  as  to  join  Clinton  to  War- 
ren by  continuous  territory. 

Mr.  CHATFIELD:  I  had  nothing  to  do   with 
that. 


Mr.  HARRIS:  I  was  referring  to  the  gentleman 
from  Clinton. 

Mr.  STETSON:  I  will  answer  the  gentleman 
by  and  by. 

Mr.  HARRIS  continued  :  Under  the  old  Dutch 
charier,  a  portion  of  ihe  pine  plains  between  the 
city  of  Albany  and  Schenectady,  belong  to  the 
former  ciiy,  so  that  the  two  cities  were  joined  to- 


gether. There  was  not  a  city  in  the  Stale  where 
the  Assembly  districts  could  be  formed  more  natu- 
rally and  more  to  the  satisfaction  of  the  people 
than  in  the  city  of  Albany.  It  contains  liitle 
more  than  halt  the  population  of  the  county,  and 
ot  course  is  entitled  to  two  members.  Mr.  H 
then  went  on  to  show  that  unles-i  power  was  given 
to  divide  the  pine  plains  he  had  alluded  to,  the 
districts  could  not  be  conveniently  formed 

Mr.  STETSON  denied  that  he  was  personally 
interested  in  the  toimation  of  the  15th  Congres- 
sional district,  ts  imputed  oy  Mr.  H.  H<;  consider- 
ed thai  district  as  improperly  formed,  and  he^Mr. 
S.)  stood  here  three  days  battling  against  that 
formation.  He  had  endeavored  to  bring  a  union 
ot  Clinton,  Essex  and  Warren,  and  he  succeed- 
ed in  doing  so  in  committee  of  the  whole, 
but  in  the  house  the  district  was  formed  as 
it  is,  and  against  his  will.  It  was  a  gerry. 
•Dander,  and  was  made  to  keep  Saratoga  and 
Washington  from  being  united.  And  standing 
as  that  district  did,  it  only  proved  what  would 
be  the  resul-  of  the  action  of  the  boards  of  su- 
pervisors 


|  this  Convention  upon  this  question.  Had  such 
expression  been  given  the  other  day,  he  would 
not  now  have  offered  this  amendment;  but  scarce- 
ly a  dozen  members  had  voted  upon  the  question, 
and  several  had  told  him  they  had  not  fully  un- 
deistood  it.  He  therefore  felt  that  he  should  not 
have  discharged  his  duty  to  his  constituents  until 
he  had  biought  the  Convention  to  a  full  and  in- 
telligent vote  upon  the  question;  and  if  the 
Convention,  with  a  full  knowledge  of  all  the  facts 
of  the  case,  should  deny  what  he  believed  justice 
to  his  constituents  demanded,  they  must  submit  to 


urnirig    ihe    Assembly    district* — 


the   stupendous  gerrymandering  of  the  State 
poliiical  purposes. 


for 


Mr.  MURPHY  suggested  that  Albany  should 
be  made;  the  exception  instead  of  New  York. 

Mr.  KENNEDY  explained  that  his  object  in 
off.-rinji  the  amendment,  was  that  ihere  was  doubt 
as  to  whether  the  woid  town  was  to  be  consid- 
ered as  applying  to  wards.  He  wished  to  have  the 
power  of  dividing  wards  if  it  should  be  desirable, 
clearly  expressed  But  if  there  was  no  doubt  on 
this  point,  he  would  withdraw  his  motion  in  or 
der  to  give  the  gentleman  full  sweep. 

After  some  further  conversation,  at  the  sugges 
tion  of  Mr.  CROOKER,  Mr.  HAKRIS  withdrew 


it  Mr.  Y.  said  the  pi  esent  territory  of  Wyoming, 
contained,  when  the  apportionment  law  was  pass- 
ed, and  had  done  for  several  years,  a  population 
more  numerous  by  several  thousand  than  the  pre- 
sent territory  of  Genesee. — 

Mr.  RICHMOND  called  Jhe  gentleman  from 
Wyoming  to  order.  This  amendment  had  once 
been  voted  down  ;  and  it  was  improper  to  waste 
time  in  its  further  discussion. 

The  CHAIR  decided  Mr.  YOUNG  to  be  in  order. 
Mr.  YOUNG  proceeded:  The  gentleman  from 
Genesee,  after  having  occupied  so  much  of  the 
irne  of  the  session,  was  becoming  very  economical 
of  the  time  of  the  Convention.  The  towns  which 
were  annexed  at  the  last  session  of  the  legislature, 
lad  for  years  been  desirous  to  be  annexed,but  were 
precluded,  by  what  had  been  deemed  a  constitu- 
ional  objection — that  of  belonging  to  a  different 
senatorial  district ;  and  were  therefore  obliged  to 
wait  until  a  hew  census  should  be  taken,  and  a 
new  arrangement  of  senatorial  districts  should  be 
made.  Application  was  accordingly  made  to  the 
last  legislature,  the  first  after  the  enumeration, 
for  the  annexation  of  these  towns.  So  clear  was 
the  justice  of  their  claim,  that  the  bill  received 
no  serious  objection  in  the  senate,  and  was  sent 
down  to  the  assembly,  at  ttye  time  the  apportion- 
ment bill  was  before  the  house.  A  request  was 
made  to  postpone  for  a  few  days  the  further  con- 
sideration of  the  apportionment  bill,  until  action 
could  be  had  on  the  annexation  bill,  as  Wyoming 
would,  in  case  of  its  passage,  be  entitled,  by  her 
population,  to  an  additional  member.  The  appor- 
tionment bill  was  for  a  very  few  days  kept  back  ; 
but  as  it  was  near  the  time  when  county  conven- 
tions were  to  be  held  for  nominating  candidates  for 
the  state  convention,  and  as  members  from  those 
counties  which  would  be  entitled  to  an  additional 


, 


his  motion  and  Mr.  C.  moved  to  strike  out  the 
words  added  on  motion  of  Mr.  KENNEDY.  This 
was  adopted. 

Mr.  SWACKHAMER  offered  an  amendment  to 
the  effect  that  the  decision  of  the  boards  of  super- 
visors should  be,  not  according  to  the  vote  of  the 
said  supervisors  individually,  but  by  the  votes  of 
those  representing  a  majority  of  the  people  of  said 
county.  This  was  voted  down. 

Mr.  CROOKER  moved  to  amend  so  as  to  re- 
quire the  supervisors  to  assemble  at  their  usual 
place  of  meeting.  This  was  also  voted  down. 

Mr.  BERGEN  moved  that  the  supervisors  meet 
on  the  1st  of  August  instead  of  the  1st  of  January, 
1S47.  Rejected. 

Mr.  A.  W.  YOUNG  moved  to  amend  so  that  Wy- 
oming should  be  divided  into  two  districts  and  Gen- 
esee into  one.  Mr.  Y.  was  reluctant  to  bring  this 
subject  again  before  the  committee  j  but  he  desir- 
ed to  obtain  a  fair  and  intelligent  expression  of 


number  of  representatives  under  the  new  appor- 
tionment were  anxious  for  the  speedy  passage  of 
the  apportionment  bill ; — for  these  and  other  rea- 
sons which  he  did  think  proper  to  mention,  the 
annexation  bill  could  not  be  got  up  and  acted  on 
before  the  other  was  passed.  Thus  gross  injus- 
tice had  been  done  to  Wyoming.  We  were  then 
told  by  gentlemen  who  aided  in  that  act  of  injus- 
tice, as  well  as  by  others,  .that  it  would  be  a  pro- 
per subject  for  the  consideration  of  the  Conven- 
tion— and  that  the  Convention  would  set  the  mat- 
ter right.  Justice,  Mr.  Y.  said,  could  be  had 
only  from  this  Convention,  and  his  constituents 
had  reason  to  expect  it.  That  these  towns  had  a 
right  to  be  annexed,  every  body  admitted.  They 
were  inconveniently  situated,  the  distance  to  their 
county  seat  being  nearly  double  the  distance  to 
that  of  Wyoming,  and  directly  out  of  the  way  of 
their  business.  And  if  it  were  conceded  that 
their  annexation  was  due  to  them  as  a  matter  of 


448 


justice    and  right,  then  the  concession  followec 
that  they  brought  with  them  the  right  of  repre 
sentation.     But  the  committee  had  been  told  tha 
the  Convention  had  no  right  to  interfere  withth< 
apportionment  law.     So  far  from  this  being  thi 
case,  he  had  supposed  it  to  be  one  of  the  first  du 
ties  of  the  Convention  to  equalize  representation 
— to   remove  inequalities   where    they   existed 
Suppose  one  half  of  Allegany  had  been  annexed 
leaving  her  a  population — say  of  20,OOGi — barely 
enough   to  entitle  her   to  one  member  according 
to  the  present  ratio  of  representation,  would  it  be 
the  duty  of  this  Convention  to  leave  that  county  to 
be   represented  by  two  members,   and  Wyoming 
with  but  one,  for  ten  years  to  come  ?     Or  suppose 
any  considerable   number   of  counties   had  been 
similarly  affected,  would  it  be  contended  that  the 
Convention  ought  not  to  interfere   with  the  ap- 
portionment law  ?     The  rights  of  his  constituents 
were  just  as  dear  to  them,  and  justice  was  as  im- 
periously demanded,  as  if  half  the  counties  of  the 
state  were  in   a  similar  situation.     It-  had  been 
said  the  other  day  by  the   gentleman  from  Gene- 
see  (Mr.  RICHMOND)  that  any  other  county  might 
with  equal   propriety  present  a  claim  for  an  ad- 
ditional member,  on  the  ground  of  an.increase  of 
population,  since  the  last  census  was  taken.     But 
such  was   not  the  fact — the  cases  w-ere  entirely 
different.     Wyoming  did  not  claim  any  thing  on 
account  of  the   natural   increase   of  population. 
Her  boundary  lines  had  been  altered  and  her  terri- 
tory enlarged,  and  on  that  account  she  had  become 
entitled  to  additional  representation  ;  this  right  of 
representation  having  been  transferred  to  Wyom- 
ing with  the  towns  that  had  been  annexed.     With 
these   remarks   he  submitted   the  matter  to  the 
committee,   and   trusted   this   Convention  would 
grant  what  his  constituents  claimed  as  justly  due 
them. 

Mr.  CROOKER  urged  that  the  proposition  of  the 
gentleman  from  Wyoming  should  commend  itself 
to  the  house.  There  was  obviously  great  injustice 
done  to  that  county,  and  the  only  question  here 
was  whether  this  body  had  power  to  interfere. 

Mr.  RICHMOND  wished  to  know  if  this  de- 
bate was  in  order, 

The  CHAIR  decided  that  it  was. 
Mr.  CROOKER  went  on   further  to  urge  this 
point. 

Mr.  RICHMOND  replied,  urging  that  if  this 
Convention  went  on  to  arrange  the  inequalities 
between  one  county  hi  this  matter  it  should  do  it 
in  all  cases.  He  referred  to  several  counties  as 
showing  quite  as  great  inequalities.  The  appor- 
tionment was  made  before  the  annexation  of  the 
towns  from  Allegany  to  Wyoming  was  consum- 


action  of  the  Legislature,  last  winter,  on  the  sub- 
ject.  Genesee,  at  the  time  the  apportionment  bill 
was  passed,was  entitled  to  two  members,and  altho' 
the  bill  annexing  the  towns  of  Allegany  to  Wy- 
oming had  precedence  on  the  calendar,  still  it 
was  kept  back  until  the  apportionment  bill  had 


mated,  and  besides  the  county  of  Genesee  he  urged 
was  growing  and  increasing,  while  Wyoming  was 
falling  back.  He  referred  to  the  Tonawanda  re- 
servation as  about  to  be  settled,  and  which  would 
increase  the  population  of  Genesee. 

Mr.  CHAMBERLAIN  explained  that  accord- 
ing to  his  understanding,  at  thettime  this  ques- 
tion was  up  in  the  Senate  last  winter,  it  was  con- 
sidered that  this  Convention  would  do  justice  in 
the  matter. 

Mr.  SWACKHAMER  moved  to  amend  so  as  to 
require  the  boards  of  supervisors  of  the  two 
counties  to  settle  this  matter. 

Mr.  PERKINS  gave  his  understanding  of  the 


Mr.  WARD  sustained  the   amendment  of  Mr. 
Y.,  as  demanded  by  justice  to  Wyoming 

Mr.    TAGGART    followed    at  some  length, 
urging  that  the  only  true  method   of  remedying 
these  difficulties   would  have  been  by  single  dis- 
tricts, without  regard  to  county  lines.   That  hav- 
ing been  voted  down,  it  would  be  unfair  to  other 
counties  who  had  presented  similar  inequalities, 
for  the  Convention  to  interfere  in  this  iustance. 
Mr.  YOUJSG  begged  the  committee   to  indulge 
him    with  a  few  words   more  on  this  question,   m 
ans-,vei    to    remarks  of   gentlemen.      He  wished 
this    Convention    to  consider  what  might   be   the 
effect  of  carrying  out  this  doctrine  that  no  chang- 
es made  at  any  nine  in    the  territory  of  counties, 
as  in  !he  case  under  consideration,  should  ever  be 
-.[lowed    to    affect    their    representation.      How 
could    an  aggrieved  portion  of  a  county  in   such 
case  ever  obtain  r  lief?     When  could  the  difficul. 
y  be  remedied  ?     If  a  division  were  prevented  by 
i  constitutional  prohibition,  it   must  in  the  first 
jlace  be    put  oft  until  the    next  census,    which 
might  be  nearly  ten  years;  and  then,  though  ap- 
>Ucatiou   were  made  to  the  very  first  legislature 
ifter  the  census,  the    petitions  are  a^ain  met  by 
he  objection  that   the  legislature  has  no  right   to 
ransfer  any  port  ion  of  one  county  to  another  before 
a  new  apportionment  shall  have  been  made;  they 
nust  again  be  put  off  anoiher  ten  years!  It  it  were 
rue  that  the  Legislature  could  not  afford  relief,ihen 
utely  the  time  to  do  it  was  now,  by  this  Conven- 
ion.   If  he  had  undei stood  the  gentleman  Irorn  St. 
Lawrence  (Mr.  PERKINS,)  he  believed  the  gen- 
leman  was  not  quite  correct  in  stating  the   pro- 
gress of  the  two  bills  through   the   legislature. — 
The  apportionment  bill  was  before  the  House  first. 
The  report  of  the  standing   committee   had  been 
delayed  several  days  to  gratify  one  of  the  mem- 
bers from  Allegany  who  desired  time  to  get  pub- 
lic sentiment  from  the  territory  to  be  anm-xed. — 
The  gentleman  from  Allegany  across   the  floor, 
(Mr.  CHAMBERLAIN)  who  had  just  spoken,  and 
who  was  a  member  of  the  Senate,  was  understood 
to  say  that  Senators  contemplated  the  interference 
of  the  Convention  in   the   matter.     Mr.  Y.  con- 
curred with   the  gentleman   in  the  fact  stated  by 
him.     It  was  so  said  at  the  time.     The  gentleman 
from  Genesee  had   spoken  of  the  glory  of  "  Old 
Genesee,"  as  a  reason  why  she  should   retain  the 
member  in  question.     He  (Mr.  Y.)  well  knew  the 
effect  of  such  an  appeal  to  members  of  the  legis- 
lature ;  but  he  hoped   no   member  of  this   body 
would  be  influenced  by  such  considerations.     He 
accorded   to  Genesee  all   the  glory  claimed  for 
ler.     But  he  would  remind  the  gentleman  that 
Wyoming   had    contributed    her    share    to    that 
glory ;    and  she  ought    not  now  to  be  required 
:o  surrender   any  of   her  rights.      P'or  one,   he 
•ejoiced  that  he    had  been  a    citizen   ot  "glorious 
>ld  Genesee,"    and  he    equally    rejoiced  in    being 
now  a  citizen  of  her  sister,  or  rather,  .perhaps,  her 
daughter,  Wyoming.      The   gentleman   expected 
an  increase  of  population  to  Genesee,  from   the 


449 


spi-eily  seriu-meiit  of  the  Tonawanda  Reservation.  I  principle  of  contiguity  of  territory  was  violated. — 
This  rnifiht   he  the  case,  and  it  might  not.       Let   Nor  would  the  change-  effect  the  object  sought. — 


him  wait  nil  the  next  census,  and  if  ihe  increase 
should  be  as  was  expected,  they  would  then  take 
the  benefit  of  it;  but  this  was  not  a  subject  for 
the  consideration  of  the  Convention. 

Mr.  RICHMOND  had  one  word  to  say  in  rela- 
tion to  the  glory  of  Genesee.  Did  not  the  gentle- 
man go  for  having  Genesee  divided,  when  more 
than  four-fifths  of  the  present  county  of  Wyoming 
was  opposed  to  it  ? 

Mr  YOUNG  said  with  respect  to  Wyoming 
having  been  placed  at  her  own  request  in  her 
present  position,  that  application  had  been 
made  to  the  Legislature  for  the  removal  of  the 
county  seat  to  a  more  central  part  of  the  county. 
So  long  as  there  was  danger  of  the  removal  of  (he 
county  buildings,  the  northern  part  of  Genesee 
favored  the  division  of  the  county,  but  opposed  it 
after  the  danger  was  over. 

The  question  being  taken  on  the  amendment, 
there  were  ayes  31,  nays  24 — not  a  quorum  voting. 

Mr.  WARD  suggested  that  the  amendment 
should  be  passed  over  and  the  question  taken  in 


the  House. 

Mr.  STETSON  could  settle  this  question. 


He 


proposed  to  amend  by  stating  that  "  the  county  of 
Clinton  shall  hereafter  be  entitled  to  two  mem- 
bers, and  the  county  of  Genesee  to  one,"  &c. 

After  some  further  conversation  Mr-  SWACKHA- 
MER'S  amendment  was  voted  down,  and  Mr.  STET. 
sow's  withdrawn. 

Mr.  CAMBRELENG  said  that  there  was  an 
important  question  involved  here.  It  was  vvhe. 
ther  the  Legislature  should  have  power  to  change 
the  apportionment  at  any  time,  by  taking  towns 
from  one  county  and  adding  them  to  another-  This 
power,  he  urged  wgjuld  tend  gieatly  to  corrupt 
legislation. 

Mr.  A.  VV.  YOUNG  said,  that  was  not  the  ques- 
tion here.  It  was  whether  this  Convention  would 
take  it  into  their  hands  to  equalize  representation- 

The  question  was  again  taken,  and  the  vote 
was  ayes  24,  nays  25— not  a  quorum  voting. 

The  CHAIR   said  that    there  evidently  was  a 


quorum 
be  lost 


present,  and  decided  the  amendment    to 


Mr.  W.  H.  SPENCER  moved  to  strike  out  the 
words,  "  and  the  population  thereof,"  in  the  14th 
line.  It  would  be  impossible  in  the  case  of  Liv- 
ingston and  Allegany,  for  all  the  boards  of 
supervisors  to  make  the  returns  required  by  this 
section,  without  taking  a  new  enumeration,  as 
several  towns  had  been  taken  from  one  county 
and  added  to  the  other. 

After  some  conversation,  this  was  voted  down. 

Mr.  SPENCER  then  moved  to  add  the  words, 
"  as  near  as  can  be  ascertained." 

This,  after  some  conversation,  was  agreed  to. 
"    ^LANDERS  desiied  to  suggest  an  amend- 


Mr 


merit  in  relation  to  the  meeting  of  the  Board  of 
Supervisors. 

Mr  WARD  objected  to  its  reception  as  having 
been  vuud  down  two  or  three  times  already. 

On  motion  of  Mr.  WARD  the  committee  resu- 
med the  consideration  ot  the  fifth  section. 

The  question  being  upon  adding  the  county  of 
Richmond  to  Queens  and  Suffolk 

Mr.  HARRISON  at  some  length  opposed  the 
amendment  as  doing  injustice  to  Richmond.  The 

31 


It  would  only  transfer  to  the  first  district  the  large 
excess  now  existing  in  the  Second.  Suffolk  and 
Queens  contained  as  mnch  population  as  Rensse- 
laer  county,  which  it  was  proposed  to  make  a  dis- 
trict. Indeed,  he  preferred  rather  to  have  the 
county  annexed  to  New  York. 

Mr.  KENNEDY  declined  the  proposition  to 
connect  Richmond  with  New- York.  The  argu- 
ments the  gentleman  had  used  against  being  an- 
nexed to  Queens  and  Suffolk  applied  with  equal 
force  to  the  proposition  to  connect  her  with  New 
York. 

Mr  SHEPARD  suggested  that  Richmond 
should  be  added  to  Westchester. 

M.r.  HARRISON  expressed  his  mortification  at 
witnessing  the  manner  in  which  Richmond  coun- 
tv  was  discarded.  Kings  county  declined  the  hon- 
or, and  now  his  friend  from  New  York  followed 
suit.  He  did  not  know  but  what  Richmond  would 
be  compelled  to  make  a  declaration  of  Indepen- 
dence! (Laughter.)  Now  he  was  content  to  let 
the  report  of  the  committee  stand  and  join  Rich- 
mond to  Kings.  They  had  always  been  associated 
with  that  county  and  desired  not  to  be  dissev- 
ered. They  might  as  well  put  Richmond  on  to 
Albany  as  to  Suffolk,  for  it  was  easier  to  get  to 
Albany  than  to  some  parts  of  Suffolk. 

Mr  CAMBRELENG  considered  Richmond 
as  naturally  belonging  to  the  1st  ward  of  New- 
York.  There  was  one  difficulty  in  attaching 
it  to  Kings  that  had  not  been  suggested.  It 
was  now  seriously  proposed  in  Brooklyn  and 
thereabouts  -although  in  Suffolk  we  were  well 
content  to  remain  where  we  are — to  erect  Long 
Island  into  an  independent  State,  and  then  where 
would  Richmond  jjo?  (Laughter.) 

Mr.  MURPHY  wished  to  call  attention  to  one 
or  two  facts  connected  with  this  matter.  He  had 
supposed  that  this  question  on  the  adoption  of  the 
motion  of  the  chairman  of  the  committee  to  an- 
nex Richmond  to  Queens  and  Suffolk  had  been 
settled.  Mr.  M.  alluded  to  the  fact  that  the  pre- 
sent population  of  Kings  was  78,000,  and  that  if  it 
continued  in  the  same  ratio  (GO  per  cent.)  as  it 
had  the  last  five  years,  it  would  have  a  popula- 
tion of  222,000.  And  yet  she  was  to  be  tied 
down  to  only  one  Senator.  And  notwithstand- 
ing this,  the  gentleman  from  Richmond  insist- 
ed on  bringing  his  county  into  that  family, 
and  sitting  down  at  their  table.  Let  them 
go  where  there  would  be  more  room.  Mr. 
M.  further  contended  that  there  was  as  much 
contiguity  of  territory  between  Queens  and  Rich- 
mond, as  between  Richmond  and  Kings,  in  the 
legal  sense  of  the  word.  Justice,  therefore,  as  no 
principle  of  contiguity  would  be  violated,  he  in- 
sisted,, should  be  done  to  the  growing  county  of 
Kings. 

Mr.  RUGGLES  understood  that  his  friend  from 
Richmond  had  no  objection  to  being  united  to 
Westchester.  Mr.  R.  suggested  that  by  some  ar- 
rangement of  this  kind  there  could  be  much  of 
the  objection  against  the  present  apportionment 
of  the  committee  removed.  Westchester,  Rich- 
mond andRockland  could  make  one  district  with 
a  deficency  of  only  7,000.  Then  Putnam  and 
Dutchess  with  a  deficiency  of  only  10,000 — while 
it  appears  that  Dutchess  and  Columbia  as  appor- 


450 


tioned  by  the  committee  would  have  an  excess  of 
16,000. 

Mr.  WARD  said  that  his  friend  from  Richmond 
need  give  himself  no  concern  about  being  received 
with  open  arms,  but  as  it  was  rather  late,  and  as 
he  understood  that  the  gentleman  from  Otsego 
was  to  make  a  motion  that  would  refer  this  whole 
matter ;  he  would  move  that  the  committee  rise 
and  report  progress. 

This  was  agreed  to,  and  the  Convention  ad- 
journed. 

AFTERNOON  SESSION. 

APPORTIONMENT,  &c.  OF    THE  LEGISLATURE. 
The  Convention  again  went  into  Committee  ot 
the  Whole  on  the  report  of  Committee  No.  1. 

The  proposition  of  Mr.  MURPHY  to  add  Rich- 
mond county  to  Queens  and  Suffolk  was  put  and 
lost. 

Mr.  SHEPARD  moved  to  adJ  Richmond  to 
the  7th  District,  viz:  Westchester,  Putnam  and 
Ror kland  counties.  Lost. 

Mr.  RUGGLES  asked  for  a  reconsideration,  to 
allow  him  to  offer  a  table  that  he  had  made,  by 
which  the  apportionment  would  be  much  more 
equal.  He  would  thus  place  them : 

7— Richmond,  12.413 

Westchester,  43  -231 

Rockland,  1-2,269 


8— Putnam, 
Dutchess, 


10— Ulster, 
Delaware, 


11— Columbia, 
Greeue, 


12— Chenango, 
Brooine, 


Cortland, 

Tioga, 

Chemung, 


Tompkins, 
Seaeca, 


67,913 
12,84-2 
51,276 

64,118 
45.6-29 
36,116 

81,745 
39.786 
30,271 

70,067 
39,4-29 
25,-J66 

64,t>95 
24,861 
22,039 
23, -282 

70,182 
37.512 

24,-243 

61,755 


There  might  be  necessary  thus  to  make  one 
more  senate  district.  He  would  make  another 
calculation. 

Mr.  CHATFIELD  said  this  would  throw  the 
deficiencies  on  to  the  southern  tier  of  counties, 
which  were  not  increasing  in  population,  and  it 
would  throw  the  excess  into  the  western  coun- 
ties, that  were  constantly  increasing. 

Mr.  MURPHY  moved  to  reconsider  the  vote  by 
which  Richmond  was  not  put  on  to  Queens  and 
Suffolk. 

The  CHAIR  said  this  could  only  be  done  by 
unanimous  consent. 

Mr.  HARRISON  objected. 

Mr  MURPHY  said  it  had  been  carried  the 
other 'day,  but  was  reconsidered  merely  to  oblige 
the  gentleman  from  Richmond,  (Mr  HARRISON.) 
He  expected  the  same  courtesy  now.  He  would 


move  to  amend  by  striking  out  Richmond  as  part 
of  the  second  district. 

Mr.  HARRISON  said  that  he  regretted  very 
much  that  the  gentleman  from  Kings  has  again 
thought  fit  to  move  in  this  matter.  "The  subject 
has  been  lully  discussed,  and  nothing  furiher  can 
be  said,  he  thought,  in  defence  of  ei;her  its  jus- 
tice or  propriety.  It  is  unnecessary  to  pass  over 
the  ground  again  which  we  traversed  yesterday. 
But  he  would  endeavor  to  show  its  true  aspect  in  a 
different  view  ol  the  subject.  Now,  he  would  ask 
what  is  the  first  point  in  the  enquiry  ?  It  was,  he 
thought,  whether  the  committee  adopted  any  par- 
ticular rule  to  govern  them  in  the  apportionment 
they  were  about,  to  make,  and  it  they  did,  whether 
that  rule  was  applied  in  this  case,  or  not  ?  That 
a  rule  was  adopted  and  applied  by  the  committee, 
was  evident  from  the  further  provisions  of  the  6th 
section,  and  that  it  was  intended  that  it  should  not 
only  govern  the  action  ol  the  committee  in  this 
ca&e,  but  that  the  same  principle  should  be  the 
controlling  one  in  all  further  apportionments  un- 
der the  Constitution,  and  in  the  adjustments  of 
the  Assembly  distikts  also.  Now,  he  would  ask, 
is  this  rule  to  be  violated  only  in  the  case  ol  Rich- 
mond county;  or  rather  he  would  ask  whether 
there  was  any  thing  so  peculiar  in  this  case,  as  to 
render  its  violation  either  just  or  necessary?  That 
it  would  be  unjust  is  so  obvious,  that  no  argument 
s  required  to  demonstrate  it,  and  ihat  it  is  equal- 
ly inexpedient  and  unnecessary  is  as  clearly  proved 
by  the  fact  that  no  benefit  can  be  derived  "from  it, 
for  by  no  ingenuity  in  the  way  of  figures  can  the 
deficiencies  in  the  representation  be  removed  ;  for 
transfer  Richmond  as  you  may,  either  to  one  dis- 
rict  or  the  other,  and  the  deficiencies  remain  the 
same. 

Mr.  BERGEN  said  that  justice  to  his  constitu- 
ents compelled  him  to  trespass  a  few  minutes 
upon  the  Convention  in  answering  the  arguments 
advanced  by  the  gentleman  from  Richmond,  (Mr. 
HARRISON).  In  doing  so,  it  would  become  ne- 
cessary to  recapitulate  some  of  the  statements 
made  on  a  previous  occasion.  In  the  first  place, 
in  the  formation  of  Senate  districts,  contiguity  is 
admitted,  it"  possible  to  be  a  necessary  requisite. 
He  would  inquire  why  this  contiguity  is  required? 
Is  it  not  that  the  territories  which  are  the  most 
closely  united,  whose  population  intermingle  the 
most  with  each  other,  and  who  are  known  to  each 
other,  may  have  an  opportunity  of  selecting  re- 
presentatives, wilh  whose  characters  and  capaci- 
ties if  possible  all  the  electors  in  the  district  are 
acquainted — representatives  who  most  probably 
would  know  all  the  wants  and  desires  of  their 
constituents?  This  he  supposed  to  be  the  main 
object  of  contiguity  of  terriiory.  [Here  he  was  in- 
terrupted by  the  gentleman  from  Richmond,  (Mr. 
HARRISON,)  who  wished  to  explain.]  MI-.BERGEN 
stated  that  the  gentleman  reiuseu  lo  grant  that 
courtesy  to  Kings  which  she  had  granted  to  him. 
when  the  question  was  before  under  consideration; 
he  therefoie  having  the  floor,  chose  not  to  be  in- 
terrupted, and  would  pioceed  with  his  remarks, 
the  gentleman  having  the  privilege  of  explaining 
afterwards.  This  great  and  desirable  object, 
continued  Mr.  B.,  would  not  be  accomplished  by 
uniting  Richmond  with  Kings.  There  are  no 
ferries  and  scarcely  any  intercourse  between  the 
two  places,  consequently  the  inhabitants  know 


451 


lntle  oi  each  other.  The  mass  of  those  in  Kints 
have  never  had  their  feet  on  the  soil  ot  Rich- 
mond It  is  well  known  they  are  separated  by  an 
arm  of  the  sea,  a  harrier  which  might  be  compar- 
ed to  (he  Alps,  Andes,  or  such  ranges  of  moun- 
tains as  visually  separate  nations  from  each  other. 
Nature  has  interposed  this  barrier  between  her 
and  the  rest  of  the  State,  and  art,  as  far  as  Kings 
is  directly  concerned,  has  not  overcome  it. — 
She  has,  however  an  artificial  connection  with  a 
portion  of  the  State  ;  she  is  united  by  a  bond 
which  time  is  continually  strengthening,  and 
which  will  continue  to  strengthen.  He  referred 
to  the  numerous  steam  ferry  boats  which  were  con- 
tinually plying  between  various  points  from  that 
Island  to  the  city  of  New-York.  By  these  means 
the  inhabitants  of  Richmond  were  continually 
mixing  with  those'of  the  great  metropolis.  Many, 
of  her  permanent  residents  carried  on  mercantile 
business  there,  and  hundreds  of  the  citizens  of  the 
city  have  their  country  residences,  their  villas 
and  palaces  erected  on  the  commanding  heights 
of  Richmond,  in  which  they  spend  a  portion  of 
the  year.  He  doubted  whether  there  was  an 

adult  person  residing  in  Richmond,  who  had  not  j  cing  as  an  incubus  on  her  shoulders  another  coun- 
visited^  the  city.  On  the  other  hand,  the  road  ty. %  Instead  of  its  being  a  gross  violation  of  right 
from  Kings  to  Richmond  went  through  New-  j  as  asserted  by  the  gentleman  from  Richmond  (Mr. 
York.  Under  these  well  known  circumstances,  j  HARRISON)  to  separate  Richmond  from  her,  it 
it  must  be  evident  to  every  member  of  the  com-  (would  be  a  gross  violation  of  justice  to  connect 
mittee,  that  the  great  and  main  objects  of  contigu-  them.  The  committee  to  which  this  matter  was 
ity  would  be  sacrificed  by  connecting  Richmond  intrusted  must  have  so  viewed  it,  or  else  they 
with  Kings.  No  good  could  result  from  it ;  the  |  would  not  have  recommended  the  alteration. — 

Under  these  circumstances  he  appealed  to  every 
member  of  the  Convention  for  justice:  he  asked 
no  more.  Let  every  one  make  the  case  his  own, 
and  he  would  have  no  difficulty  in  determining 
the  proper  course  to  pursue.  With  these  obser- 


Richmond  to  them,  they  would  not  be  placed  in  as. 
bad  a  position  as  some  other  portions  of  the  State, 
for  they  would  only  have  have  an  excess  of  5,256. 
Add  here  to  the  seventh  district  consisting  of  the 
counties  of  Westchester,  Putnam  and  Rockland, 
striking  the  latter  from  the  same  as  proposed  by 
the  gentleman  from  Dutchess  (Mr.  RUGGLES,) 
and  the  population  of  the  district  will  be  68,486. 
Allow  Rockland  to  remain  in  the  district  and  it 
will  only  be  80,755,  showing  an  excess'  of  but 
5,770  in  a  district  which  is  nearly  stationary. — 
Kings  with  a  population  increasing  with  more 
than  double  the  rapidity  of  any  other  county  in 
this  State,  a  representative  population  at  the  pre- 
sent moment  above  the  ratio  required,  a  county 
judging  from  the  past,  which  will  probably  at  the 
next  State  census  have  a  representative  popula- 
tion of  near  140,000,  and  an  average  representa- 
tive population  during  the  term  of  over  100,000, 
is  entitled,  if  even  a  shadow  of  equity  is  taken  in- 
to consideration  (especially  when  it  can  so  easily 
be  done  without  injury  to  other  portions  of  the 
State,)  to  be  placed  among  those  who  have  the 
largest  deficiencies.  There  is  no  justice  in  pla- 


people  of  Kings  did  not  desire  her  proffered  embra- 
ces. The  legislature  at  their  last  session,  when  di- 
viding the  State  understood  this ;  they  were  aware 
that  this  imaginary  contiguity  of  the  gentleman 
from  Richmond, [Mr. HARRISON]  had  no  existence, 


for  instead  of  linkigg  the  two  counties   together,   vations  he  submitted   the  matter,  trusting  to  the 
they  severed  them  and  added  Richmond  to  the 
city  of  New- York.  If  this  contiguity  had  existed 
as  pretended,  they  in  their  wisdom  never  would 


The  same   principles   opera- 
operate    now.       If  this   just 


have    done   this, 
ted    then    which 

amendment  prevailed  and  it  should  be  deem- 
ed expedient  not  to  connect  this  isolated  is- 
land with  New  York,  which  for  one  he  would  not 
insist  upon/then  he  held  that  there  would  be  as 
much  propriety  in  connecting  her  with  Queens 
and  Suffolk,  or  with  Westchester  as  with  Kings. 
In  either  of  those  cases  the  common  route  of  tra- 
vel would  be  through  the  city,  and  in  either  of 
them  the  distance  by  water  would  be  trifling  and 
not  great.  Having  noticed  this  point  he  would 
now  turn  his  attention  to  the  second  object  which 
if  possible  ought  to  be  attained,  and  that  is  equal- 
ity as  near  as  possible  in  the  districts  not  only  at 


good  sense  of  the  committee. 

Mr.  RUGGLES  said  that  this  subject  required 
much  more  examination  than  could  be  given  to  it 
by  himself  or  any  member  here  in  committee  of 
the  whole  He  would  therefore  move  that  the 
committee  rise  and  report ;  and  if  this  was  done, 
he  would  then  move  to  send  this  subject  to  a  'se- 
lect committee  of  three,  to  ascertain  and  decide 
after  a  thorough  examination  of  it,  whether  or  not, 
a  better  and  more  equal  division  could  be  made. 

iVJr  LQOMIS  s»id  that  most  assuredly  before 
such  a  reference  was  made  of  any  districts,  the 
comn.irtee  ought  to  settle  definitely  the  question 
of  32  Senators,  and  vote  on  the  motion  to  reconsi- 
der That  ought,  to  l«e  set  at  rest  without  delay. 

The  commit  lee  then  rose. 

Mr.  PATTERSON  reported  to  the  President, 
and  asked  leave  for  the  committee  to  sit  again. 


the  time  of  their  formation  but  during  the  whole  j      Mr.  HARRIS  was  opposed  to  the  granting  leave. 


term  of  their  existence.  Kings  alone  had  a  rep 
resentative  population  at  the  time  of  taking  the 
last  census  of  61,611,  Suffolk  and  Queens  coun- 
ties a  nearly  stationary  population  of  58,657. 
Richmond  added  to  those  counties  would  leave 
only  3,91£,  a  less  deficiency  in  the  first  district 
than  that  which  would  exist  if  she  was  added  to 
Kings.  This  he  viewed  as  the  most  appropriate 
connection  for  her,  as  tending  to  equality  more 
than  any  other.  The  2d  district,  consisting  of  the 
1st,  2d,  3d,  4th,  5th  and  6th  Wards  of  New  York, 
have,  as  the  different  enumerations  will  show,  a 
nearly  stationary  population  of  67,828.  By  adding 


The  apportionment  made  bv  the  commiltee  he 
had  carefully  examined  ;  and  he  was  quite  unbi- 
assed, and  had  endeavored  to  come  to  a  just  opi- 
nion in  regard  to  its  divisions,  &c  ;  and  lie  felt 
satisfied  ii  was  as  equal  and  as  equitable  a  division 
as  could  he  made  by  any  body  of  men.  They 
ought  theietore  to  receive  the  report  as  it  stood — 
and  he  with  this  view  moved  to  discharge  the 
committee  of  the  whole  from  the  further  conside- 
ration of  it. 

Mr.  R.  CAMPBELL  jr.  said  that  although  he  was 
a  member  of  that  committee,  No.  1,  he  did  not 
desire  to  sec  the  report  adopted  without  every  en- 


452 


deavor  being  made  to  make  it  as  nearly  perfect  as 
possible. 

Mr.  CROOKER  was  in  favor  of  discussing  the 
report  in  committee  of  the  whole,  where  they 


could  apply  the  previous  question. 

r.  WARD  was  decidedly  of  opinion  that  eve- 


Mr. 


ry  gentleman  fully  understood  the  whole  subject, 
It  had  been  amply  discussed,  and  he  should  vote 
to  discharge  the  committee  from  further  conside- 
ration of  it. 

Mr.  SHEPARD  hoped  the  Convention  would 
pause  before  the  motion  of  the  gentleman  from  Al- 
bany (Mr.  HARRIS)  was  adopted.  He  was  con- 
fident the  occasion  was  critical,  and  he  desired 
to  be  heard  for  a  moment.  Would  gentlemen  dis- 
charge the  committee  of  the  whole  from  the  fur- 
ther consideration  of  the  subject?  If  so,  when 
should  it  be  considered  ?  In  the  house — under 
the  spur  of  the  "  previous  question"  and  with  an 
anxious  desire  to  pass  hastily  by,  the  dry  and  un- 
interesting details  incident  to  the  division  of  Sen- 
ate districts  ?  He  hoped  not.  No  fit  place  re- 
mained to  settle  and  adjust  the  conflicting  inter- 
ests of  various  sections  of  the  State,  in  the  for- 
mation of  such  districts,  but  the  committee  of  the 
whole.  He,  (Mr.  S.)  had  wished  that  a  select 
committee  would  be  appointed  for  this  purpose, 
or  that  the  report  would  be  referred  again  to  the 
judgment  of  the  committee  that  reported  it.  The 
great  importance  of  the  subject — our  duty  to 
every  portion  of  the  people,  to  make  their  rep- 
resentation equal  and  satisfactory,  demand  that 
our  most  mature  reflection  should  be  given  to  it, 
and  that  all  the  means  of  analyzing  it  by  commit- 
tees or  otherwise,  that  a  body  of  that  sort  could 
furnish,  should  be  freely  and  fairly  employed. — 
But  he  was  satisfied  that  the  sense  of  the 
Convention  was  against  the  reference  to  the 
standing  or  to  a  select  committee,  and  he 
would  not  now  press  upon  their  attention  reasons 
that  did  not  meet  their  approbation.  He  would 
appeal  to  another  consideration  of  great  weight 
and  influence  upon  his  mind.  We  were  not  as- 
sembled so  much  to  discuss  the  political  divisions 
of  the  State,  as  the  great  fundamental  principles 
of  a  written,  republican  Constitution ;  to  impose 
limits  upon  the  legislative  power;  to  arrange  the 
machinery  of  government  so  that  it  will  work 
beneficially,  with  ease  and  safety.  We  esteem  it 
of  great  importance,  and  we  sincerely  hope  that 
the  Constitution  we  are  framing  will  meet  the 
public  approbation,  and  answer  the  public  wants. 
Would  it  be  well  to  peril  all  the  wise  provisions 
of  their  matured  judgment  by  the  dissatisfaction 
that  must  inevitably  grow  out  of  an  erroneous 
adjustment  of  the  Senate  districts  ?  Clearly  not. 
Yet  gentlemen  were  taking  the  surest  course  to 
do  it.  He  would  not  presume  to  say  that  other 
parts  of  the  State  might  be  dissatisfied ;  he  would 
be  content  to  speak  for  his  own  constituents,  and 
on  their  behalf  he  asserted  that  the  division  re- 
ported by  the  committee  would  not  please  the 
electors  of  the  city  of  New-York.  There  would 
be  deep  and  abiding  dissatisfaction  there ;  and 
here  he  would  take  occasion  to  say  that  no  part 
of  the  Constitution  would  awaken  a  hostility  so 
active  and  persevering  as  the  5th  section  of  the 
article  reported.  Yet  gentlemen  desired  to  set- 
tle this  most  difficult  of  all  the  questions  before 
us  in  the  House,  when  a  hasty  determination 


would  be  final,  unless  the  result  of  restlessness,  of 
impatience  or  engaging  pursuits,  could  be  reach- 
ed by  the  uncertain  and  dilatory  process  of  recon- 
sideration— a  process,  in  this  instance,  that  all  of 
us  would  approach  with  aversion,  and  most  of  u» 
would  resist  with  disgust.  An  inconsiderate  di- 
vision of  territory  would  appeal  more  strongly 
than  any  other  part  of  the  Constitution  to  the 
judgment  and  to  the  prejudices  of  the  electors ;  it 
would  be  a  great  and  ever  present  evil  amongst 
them ;  and  the  fact  that  we  did  it  hastily  and 
without  calmness  and  attention  would  not  tend  to 
allay  the  dissatisfaction  we  had  raised.  He  hoped 
they  would  still  retain  the  subject  within  t,heir 
own  hands,  with  a  tenacity  proportioned  to  the 
importance  of  the  subject ;  for  if  they  suffered  it 
to  escape,  he  was  persuaded  that  the  evils  would 
not  only  be  heavy,  but  inevitable. 

Mr.  RUGGLES  differed  with  the  gentleman 
from  Albany,  (Mr.  HARRIS.)  He  believed  that 
several  changes  would  be  made  in  this  report  and 
in  the  apportionment,  which  would  be  more  equi- 
table to  a  large  portion  of  the  State  than  the  con- 
templated arrangement  of  the  committe  No,  1, 
And  for  that  reason  it  was  (and  not  from  any  de- 
sire to  delay)  that  he  strongly  desired  to  see  this 
question  of  apportionment  sent  to  a  select  com- 
mittee. They  could  settle  the  districts  satisfacto- 
rily, in  an  hour  or  two,  and  he  would  therefore 
make  such  a  motion. 

Mr.  WARD  hoped  that  if  the  motion  to  dis 
charge  the  committee  should  fail,  that  the  gen- 
tleman from  Dutchess  (Mr.  RUGGLES)  would  still 
make  the  motion ;  and  he,  for  one,  would  vote  for 
it.  For  if  they  should  allow  the  report  to  go 
back  into  committee  of  the  whole,  there  was 
great  danger  that  several  days  more  would  be  con- 
sumed in  debating  and  ende^oring  to  re-arrange 
this  subject  of  the  apportionment  of  the  districts. 
Now  it  was  pretty  generally  understood  that 
although  there  was  a  motion  to  reconsider,  yet 
that  there  was  to  be  no  change  of  the  number  of 
senators  already  voted  for,  viz :  32.  He  also  had 
supposed  that  there  was  to  be  no  change  with  re- 
gard to  the  single  senate  and  assembly  districts, 
or  any  of  those  points  which  had  been  decided 
here  by  a  large  vote  in  favor.  For  his  own  part, 
he  should  not  change  his  vote  on  any  of  these 
subjects,  and  he  believed  that  to  be  the  general 
feeling,  and  he  moved  to  discharge  the  committee 
— at  least  he  hoped  that  motion  would  prevail. 

Mr.  CHAi'i<'iELD  contended  that  the  gentle- 
man from  Westcbester  (Mr.  WARD)  WHS  in  error. 
This  question  of  the  apportionment  of  the  several 
counties  into  Senate  Districts  has  not  been  fully 
discussed;  nay  more,  with  the  exception  of  the 
taking  ot  Richmond  out  of  iJs  position,  there  had 
been  no  discussion  at  all-  And  yet  v\e  were  to  be 
stultified  with  the  asssertion  that  this  had  been 
fully  discussed.  Nor  did  he  believe  that  there 
would  be  en.tire  satisfaction  telt  by  the  people 
unless  this  question  should  receive  full  conside- 
ration, with  a  view  to  do  ample  justice  to  all  — 
He  did  not  wish  to  leave  in  the  Constitution  any 
latent  clauses  which  should  induce  the  people  to 
reject  it  when  submitted  to  them.  And  they 
certainly  would  do  so  if  it  did  injustice  to  any  part 
of  the  State.  Otsego  Co.  he  knew,  would  not  en- 
dorse an  injustice.  The  gentleman  from  West- 
chester  could  decide  only  fur  himself  in  this  ques- 


453 


tion  of  single  districts.  For  his  own  part  he  (Mr 
C.)  was  not  satisfied  that  the  number  of  Senators 
would  not  be  increased  If  mitrht  was  to  prevail 
over  right,  and  this  report  was  put  through, 
against  the  will  and  against  the  stomach  of  this 
House,  he  feared  that  dissatisfaction  would  defeat 
the  adoption  of  the  instrument  which  we  should 
submit  to  the  people.  He  would  give  the  subject 
a  full  and  deliberate  discussion,  and  then  allow  it 
to  lie  upon  the  table  for  a  while  as  was  done  in 
the  Convention  of  1821,  that,  after  deliberation, 
it  might  be  recurred  to  again,  and  disposed  ol 
under  the  cool  consideration  ot  this  body. 

Mr.  W.  TAYLOR  considered  that  it  would  be 
unwise  now  to  discharge  the  committee  of  the 
whole ;  he  hoped  leave  to  sit  again  would  be 
granted.  If  it  was  thought  most  desirable  to  send 
this  section  to  a  select  committee  it  could  be  done, 
and  then  the  subject  could  be  again  taken  up  in 
committee  of  the  whole.  But  though  a  select 
committee  might  revise  the  apportionment,  yet 
for  his  own  part,  he  never  wanted  in  his  life  to 
serve  on  such  a  committee  again.  He  had  had 
enough  of  it. 

Mr.  RHOADES  insisted  that  this  subject  of  ap- 
portioning senators  had  been  discussed.  Motion 
after  motion  was  made  to  have  32,  34,  36,  38,  40, 
42,  46,  48  and  even  50  senators,  and  each  man 
had  a  plan  of  his  own,  and  these  were  all  discuss- 
ed for  days.  And  when  they  were  before  the 
committee  it  must  be  remembered  that  the  worthy 
chairman  (Mr.  W.  TAYLOR)  had  declared  that 
each  one  of  them  was  more  unequal  than  the  one 
that  his  committee  had  carefully  prepared. 

Mr.  CHATFIELD  said  that  although  plans  had 
been  presented  and  various  members  had  spoken, 
yet  that  the  details  of  this  subject  of  the  appor- 
tionment and  Senate  districts  had  not  been  fully 
discussed. 

Mr.  RHOADES  again  contended  that  for  days 
the  whole  merits  of  the  question  had  been  fully 
debated  and  investigated.  And  he  supposed  that 
the  number  of  senators  had  been  definitely  settled 
and  also  the  main  features  of  the  apportionment, 
as  the  chairman  ot  the  committee  (Mr.  TAYLOR) 
had  said  in  relation  to  all  these  propositions,  and 
he  had  not  been  contradicted,  that  they  presented 
as  many  excesses  and  deficiencies  as  the  report  of 
the  committee.  The  gentleman  from  New  York 
(Mr.  SHEPARD)  had  endeavored  to  alarm  us  with 
the  predictions  that  the  people  would  not  sanc- 
tion this  apportionment  of  Senators  and  Assem- 
blymen. Mr.  R.  could  tell  him  whatever  might 
be  the  sentiment  in  New  York,  that  in  the  coun- 
try the  people  were  almost  unanimous  in  the  sup- 
port of  single  Senate  and  Assembly  districts,  and 
they  would  be  satisfied  with  this  apportionment. 
He  had  no  doubt  but  what  the  vote  in  his  region 
of  the  State  would  be  nearly  unanimous.  As  to 
these  appeals  to  party  which  had  been  made,  Mr. 
R.  thought  they  would  be  like  the  seed  sown  by 
the  way  side.  The  fowls  of  the  air  would  pick 
them  up,  but  our  constituents  would  pay  no  sort 
of  attention  to  them. 

Mr.  STETSOiN  corrected  the  gentleman  in  say- 
ing that  no  plan  of  division  had  bueu  ottered  that 
was  more  equal  than  the  report  of  the  committee 
There  were  gross  inequalities  to  be  corrected.— 
This  section,  with  the  exception  of  the  subdivi- 
sion relating  to  Richmond  and  Kings,  had  not 


been  discussed  at  all  in   committee  of  the    whole. 

Mr.  HARRIS  said  it  was  obvious  that  it  any 
vo^e  fixing  the  number  of  Scnatois  was  to  be  rt- 
consulered,  it  would  he  labor  lost  to  go  on  farther 
with  this  report  uniil  that  question  was  disposed 
of.  To  allow  these  motions  to  be  made,  he  would 
withdraw  his  motion  and  move  to  lay  the  report 
on  the  table.  Agreed  to. 

Mr.  CHATFIELD  moved  to  go  into  committee 
of  the  whole  on  the  report  of  the  committee  No. 
1 1.  Agreed  to. 

RIGHTS  AND  PRIVILEGES  OF  THE  CITIZENS. 

The  committee  of  the  whole,  Mr.  MARVIN  in 
the  Chair,  then  took  up  th>;  report  in  relation  to 
the  rights  and  privileges  of  the  State. 

The  1st  section  was  read  as  follows: 

(5  1.  Men  are  by  nature  free  and  independent,  and  in 
their  social  relations  entitled  to  equal  rights. 

Mr.  BASCOM  moved  to  insert  the  words  "and 
political,"  after  the  word  "social  " 

Mr.  KENNEDY  hoped  this  would  not  be 
adopted.  He  understood  it  as  opening  the  ques- 
tion of  color. 

Mr.  BASCOM  did  not  wish  to  pass  upon  a  sec- 
tion that  meant  nothing.  In  a  Constitution  he 
was  not  willing  tp  say  merely  that  man  was  enti- 
tled to  social  rights.  Here  was  the  place  for  us 
to  say  whether  man  was  entitled  to  his  political 
rights  If  gentlemen  were  prepared  to  say  this 
was  not  so,  here  was  the  proper  time  to  do  it. — 
as  to  color,  it  was  not  in  his  mind,  fle  had  no 
intention  to  disturb  the  sensibilities  of  the  gen- 
tleman from  New  York.  Mr.  B.  considered  that 
his  own  rights  were  equal  to  those  of  the  gentle- 
man, and  he  wanted  them  secured  in  this  Consti- 
tution. 

Mr.  KENNEDY  considered  that  the  Conven- 
tion by  its  vote  excluding  aliens  from  the  basis  of 
representation,  had  decided  that  all  men  were  not 
entitled  to  equal  political  rights. 

Mr.  FORSYTH  moved  to  amend  the  amend- 
ment by  striking  out  the  word  "  social "  and  insert 
''political."  It  was  not  true  to  say  that  every 
man  was  entitled  to  equal  social  rights. 

The  CHAIR  ruled  this  motion  not  now  in  or- 
der. 

Mr.  NICOLL  was  opposed  to  the  insertion  of 
either  of  these  first  two  sections  in  the  Constitu- 
tion. They  were  mere  abstractions,  and  we  had 
enough  business  to  transact  without  discussing 
mere  abstractions. 

Mr.  W.  TAYLOR  believed  a  majority  of  the 
onvention  would  agree  with  the  gentleman  last 
up,  that  we  had  too  much  important  business 
on  hand  to  waste  time  in  the  discussion  of  mere 
abstractions.  The  mode  of  ploughing  one  hour, 
hoeing  one  hour,  then  building  a  piece  of  fence 
and  then  diving  into  the  meadow,  as  he  had  seen 
some  farmers  do  would  never  accomplish  any 
thing.  He  wanted  to  dispose  of  the  question  of 
:he  apportionment  first,  before  taking  up  an  en- 
:irely  new  subject.  To  test  the  sense  of  the  House 
tie  would  move  to  rise  and  report  progress. — 
Agreed  to,  55  to  34. 

The  Convention  then  adjourned. 


WEDNESDAY,  (48fA  day,}  July  29. 
Prayer  by  the  Rev.  Mr.  KIPP. 
Mr.  KENNEDY  said  that  he  found  himself  re- 


454 


ported  improperly  by  the  papers  in  Albany,  in  a 
remark  he  made  the  other  day,  to  a  statement  of 
fact  made  by  one  of  his  colleagues.  (Mr.  MORRIS.) 
His  colleague  had  said,  in  substan'-e,  that  the 
city  of  New- York  had  sent  us  all  here  instructed. 
He  denied  it.  That  his  colleague  then  alluded 
to  a  circular  that  was  addressed  to  the  candidates, 
calling  on  them  to  avow  themselves  in  favor  of 
single  districts.  To  this  remark  he  was  made  to 
say  that  "  no  answer  was  demanded."  His  re- 
ply was — that  "  it  was  not  necessary  to  answer 
it  in  the  affirmative — he  had  not  done  so." 

Mr.  TILDEN  presented  certain  lesolutions  of 
the  Convention  of  the  city  of  Ni-w  York  against 
any  interference  by  the  Legislature  with  the  char- 
teied  privileges,  rights  and  immunities  of  said 
city. 

Mr.  MARVIN  presented  the  memorial  of  the 
Counsel  of  the  Seneca  Nation  ot  the  Indians  upon 
the  Allegany  and  Cattaraugus  Reset vations.  Or- 
dered printed. 

On  motion  the  Convention  proceeded  to  the 
consideration  of  the  several  motions  to  reconsider 
the  votes  proposing  to  increase  the  number  of  Se 
nators. 

Mr.  W.  TA YLOR  earnestly  wished  the  Conven- 
tion to  take  the  question  on  the  pending  motions 
to  reconsider  the  the  several  votes. 

Mr.  RUGGLES  said  that  after  due  reflection  he 
was  satisfied  that  nothing  could  be  done  to  better 
the  district,  No.  8,  arid  after  consulting  with  the 
Chairman,  he  had  concluded  to  withdraw  his 
proposition. 

Mr.  TOWNSEND  wished  all  the  amendments 
to  be  printed  and  sent  out  to  the  people  for  their 
consideration  and  suggestion  before  ultimately 
disposing  of  the  report.  In  the  mean  time  they 
could  take  up  all  the  various  motions  to  reconsider. 
Mr.  SHEPARD  said  that  this  was  unnecessa- 
rily precipitating  the  question ;  and  he  wished 
some  delay  in  order  to  hear  farther  from  his  con- 
stituents, and  to  obtain  their  views  in  relation  to 
this  whole  subject. 

Mr.  TOWNSEND  then  withdrew  the  motion 
to  vote  on  the  motion  to  reconsider. 

Mr.  CAMBRELENG  thought  that  the  gentle- 
man from  N.  Y.  (Mr.  SHEPARD)  was  in  error. 
He  thought  that  this  Convention  had  precipitated 
nothing  this  session.  He  hoped  that  the  vote 
would  now  be  taken  on  the  various  motions  to 
reconsider. 

The  PRESIDENT  :  The  question  is  on  the 
printing. 

Mr.  CAMBRELENG  :  The  gentleman  from 
Onondaga  (Mr.  TAYLOR)  has  not  withdrawn  his 
motion. 

The  PRESIDENT  :  The  motion  to  take  the 
vote  on  the  several  questions  to  reconsider  is 
withdrawn. 

Mr.  CAMBRELENG:  the  gentleman  from 
Ononda»;a  has  not  withdrawn  his  motion. 

The  PRESIDENT:  The  Chair  did  not  under 
stand  that  ihe  gentleman  from  Onondaga  made 
any  motion. 

Mr  TOWNSEND  said  he  would  withdraw  his 
motion  to  print,  it  they  were  desirous  to  vote  or 
motion  to  reconsider. 

Mr.  MURPHY:    I  make  that  motion. 
Mr.  STRONG:    And  I  make  it  too, 
Mr.  W.  TAYLOR:    And  I  make  it. 


Mr.  SHEPARD:  I  hope  gentlemen  will  be 
jatient.  This  matter  is  too  important  to  press  so 
lastily.  A  lew  days  delay  will  not  surely  pro- 
note  any  more  discussion  than  prudent  action  re- 
quires, and  it  will  give  us  an  opportunity  to  catch 
he  sentiment  of  the  people.  I  have  seen  but  two 
lewspapers  which  have  spoken  of  the  subject  now 
>ressed  upon  us  and  ihey  were  decidedly  opposed 
o  the  judgment  of  the  Convention.  I  hope  we 
ihall  pass  on  to  some  other  order  of  business. 

Mr.  KIRKLAND  said  that  we  had  spent  a  week 
>r  more  in  this  matter  ;  and  these  various  ques- 
ions  involved  in  the  several  motions  to  re-consid« 
;r  were  each  fully  discussed  by  twenty  or  thirty 
gentlemen  on  each  side.  The  whole  subject  had 
)een  exhausted  and  the  Convention  can  as  well 
come  to  a  conclusion  now,  as  at  any  other  time  ; 
and  he  hoped  the  committee  would  take  up  the 
matter  at  once,  and  dispose  of  each  of  these  mo- 
ions  by  an  overwhelming  majority  against  them. 

Mr.  W.  TAYLOR  did  not  wish  unnecessarily 
to  press  this  matter,  but  still  he  wished  to  throw 
aff ;  all  the  responsibility  of  any  further  delay  in 
;his  matter;  but  he  hoped  the  Convention  would 
fix  some  day  to  dispose  of  this;  say  this  day  week, 
or  some  other  early  day. 

Mr.  SHEPARD  hoped  a  delay  of  one  week 
would  be  agreed  to  in  this  matter. 

Mr.  O'CONOR  :     Make  it  Monday. 

Messrs.  STETSON  and  STRONG:  Oh,  no  ! 
not  Monday ;  so  many  of  you  will  be  down  in 
New-York  on  that  day. 

This  motion  Was  lost— ayes  28,  noes  not  count- 
ed. 

Mr.  WARD  then  moved  that  the  motions  to 
reconsider  be  acted  upon  in  the  order  in  which 
they  were  made. 

Mr.  CHATFIELD  wanted  to  know  by  what 
kind  of  hocus  pocus  they  had  got  into  this  busi- 
ness. It  was  out  of  order. 

The  PRESIDENT  thought  not. 

Mr.  CHATFIELD  differed  from  the  Chair.- 
He  wanted  a  full  house  and  a  fair  reflection  of 
public  sentiment.  The  house  was  now  proba- 
bly as  full  as  it  ever  would  be — or  as  they 
would  expect  it  to  be  this  session.  If  so  he  had 
no  objection  to  take  the  vote  to  day.  He  ob- 
served that  the  district  of  every  member  of 
the  committee  was  well  taken  care  of.  He  meant 
no  reflection,  but  he  wanted  every  member  in  the 
house  to  have  the  same  chance. 

Mr.  WARD  was  opposed  to  any  farther  post- 
ponement. 

Mr.  TAYLOR  did  not  object  to  postpone  to 
Friday—  if  this  course  would  prevent  all  dissatis- 
faction. 

Mr.  TILDEN  hoped  the  subject  would  be  post- 
poned for  a  few  days— so  that  other  gentlemen 
who  were  busy  on  other  subjects  might  have  time 
to  examine  this.  He  was  surprised  when  so 
many  gentlemen  wanted  delay — that  an  attempt 
should  be  made  to  resist  this.  It  was  not  neces- 
sary always  to  finish  one  thing  when  they  begin  it 
before  they  touched  another.  Many  gentlemen 
who  have  committee  business  have  not  had  time 
to  attend  this.  He  wished  Tuesday  to  be  the  day 
but  he  would  take  Friday,  rather  than  to-day. 

Mr.  RHOADES  said  that  committee  No.  1  had 
spent  a  great  deal  of  time  in  examining  this  sub- 
ject, and  all  the  various  combinations  of  numbers 


455 


upon  it,  that  were  proposed   here  in  connection  | 
with  single  districts  ;  and  they  had  found  that  no 
plan  was  so  good  as  the  one  they  had  proposed. 

Mr.  VV.  I  AYLUK  s,»id  they  had  found" that  none 
came  out  so  well  with  regard  to  the  excesses  and 
deficils  as  the  plan  of  Com milfe  No.  1.  All 
other  plans  have  utterly  tailed  with  respect  to 
single  districts.  They  may  have  them  more  equal 
with  double  districts,  than  the  present  plan. 
Mr.  STETSON:  Ah,  that's  the  point. 
Mr.  TiLDEN:  In  districting  the  city  ot  N.  Y., 
an  error  has  been  committed;  it  is  to  throw  all 
the  increasing  parts  of  the  city  into  one  district; 
and  before  a  new  apportionment  is  made,  the  pop- 
ulation in  some  of  them  will  be  15U.OOO  persons, 
at  least. 

Mr.  SWACKHAMER  said  he  would  hereafter 
call  all  who  delayed  the  business  of  the  Conven- 
tion, to  order,  without  ceremony. 

Mr.  HARRIS  hoped  they  would  not  postpone 
this.  True  Mr.  TILDEN  had  been  much  engaged 
— but  fifteen  other  N.  Y.  city  members  have  been 
here;  they  heard  the  debate;  one  of  them  was 
on  committee  No.  1,  and  assented  to  this  distri- 
bution of  Senators  tor  i\.  Y.  city.  If  they  post- 
poned it  there  would  be  so  many  new  plans  start 
up  hy  Friday,  that  they  would  discuss  it  for  at 
least  a  week  longer. 

Mr.  HUNT:  we  cannot  proceed  to  district 
the  city  of  New  York  now— for  the  City  Conven- 
tion mean  to  alter  tne  ward  boundaries  of  that 
city. 

Mr.  WARD  said  that  if  they  moved  to  postpone 
it  to  Tuesday,  he  would  vote  for  it  j  if  only  to 
Friday,  he  would  vote  against  it. 

Mr.  CH  ATI'' I  ELD  was  willing  to  do  so— he 
was  not  tenacious  about  it.  He  asked  this  in  re- 
lation to  this  important  question,  as  a  matter  of 
courtesy  from  the  House,  which  he  should  be 
willing  to  concede  to  others. 

The  motip'i  lo  postpone  to  Friday  was  lost- 
ayes  40.  noes  54. 

Mr.  CHATF1ELD  said  that  now  he  supposed 
that  each  motion  to  reconsider  is  a  specific  motior 
and  stood  independently,  and  the  question  would 
therefore  be  on  reconsidering  the  vote  on  filling 
the  blank  with  4S  Senators. 

Mr.  WARD  said  the  first  motion  would  be  on 
reconsidering  the  number  thai  had  been  fixed  upoi 
by  the  House  ;  that  must  be  reconsidered  before 
anything  else  could  be  done. 

Mr.  PATTERSON:  That  is  correct. 
Mr.  CHATF1ELD  denied  this;  and    moved    t< 
reconsider  the  voie  on  48. 

Mr.  PRESIDENT  said  none  were  privileged 
but  each  must  be  taken  inJhe  order  in  which  it  i 
made. 

Mr.  CHATFIELD  (hen  agreed  to  take  the  vot 
on  reconsidering  the  number  of  32  Senators- 

So  the  question  was  announced — "  Shall  th 
Convention  reconsider  its  vote  fixing  the  numbe 
of  Senators  at  3<J"  ': 

Mr.  O'CONOR  should  take  the  liberty  to  b 
heard  at  considerable  length  on  this  proposition 
and  he  proceeded  to  speak  in  fa?or  of  the  recon 
sideration  and  of  a  change  in  the  number  ol  Se 
Haters.  He  came  here  untramrneled  by  pledge 
He  had  been  in  favor  of  single  Assembly  Districts 
and  was  villins;  his  own  county  should  be  cu 
and  carved  up  at  pleasure.  But  as  the  countr 


members  winced  under  this  operation,  he  would 
ield  this  principle  and  introduce  a  plan  some- 
ling  like  this.  He  would  divide  every  county 
.iving  more  (han^owr  members,  but  none  with  a 
ss  number.  This  would  divide  New  York  into 

Assembly  Districts,  and  this  would  be  favorable 
o  the  minority.  For  thai  county  was  now  divi. 
ed  into  four  Congressional  Districts,  and  it  so 
appened  that  though  there  was  a  Democratic  ma- 
>rity  of  2000  in  the  city,  we  were  now  represent- 
d  in  Congress  by  3  Native  Americans  and  1  De- 
mocrat. 

Mr  VVORDEN  (in  his  seat.)  Al!  about  the 
ame  thing  !  ^ 

Mr.  O'CONOR  then  proceeded  at  some   length 
give   his   views  on  the  organization  &c.  of  the 
wo   Houses  of  the   Legislature. 

Mr.  CHATFIELD  then  proceeded  to  complain 
n  very  harsh  terms,  of  one  of  the  letter  writers 
ipon  the  floor,  whom  he  denominated  a  Report- 
r.  He  said  that  unless  the  evil,  as  he  termed 
t,  was  corrected,  it  would  be  better  not  to  have 
ny  reporters  there  at  all. 

Mr.  RHOADES  said  that  the  gentleman  from 
Otsego  (Mr.  Chatfield)  had  alluded  to  what  he 
Mr.  R.)  had  said  on  former  occasions,  reproba- 
ing  the  introduction  of  party  politics  into  the 
Convention.  He  had  intimated  that  the  acquies- 
;ence  of  those  who  are  denominated  Whigs  in  this 
Convention  in  favor  of  fixing  the  number  of  the 
Senators  at  thirty-two,  and  dividing  the  State  into 
\ingle  Senate  districts,  was  with  a  view  of  deriv- 
ng  political  advantage  to  the  whig  party.  Now 
le,  Mr.  R.,  could  not  imagine  how  the  whig  party 
r  any  other  party,  were  to  be  benefitted  by  fix- 
ng  the  number  of  Senators  at  32,  and  of  dividing- 
he  States  into  single  Senate  districts.  He  could 
not  tell  why  that  number  was  more  favorable  to 
he  whig  party  than  that  of  any  other — for  his 
own  part  he  would  say  that  views  of  a  party  char- 
acter had  not  entered  into  his  mind  in  relation  to 
this  subject,  and  he  thought  he  might  venture  to 
assert  that  no  whig  on  this  floor  had  acted  with 
that  view  or  intent.  He  had  no  knowledge  of  any 
consultation  or  concert  of  action  which  had  re- 
'erence  to'any  such  subject,  either  on  this  or  any 
other  subject,  connected  with  the  amendment  of 
the  Constitution.  He  would  say  thus  much  of  him 
self.  The  gentleman  from  Ontario  (Mr.  WORDEN) 
and  the  gentleman  from  Essex  (Mr.  SIMMOXS,) 
to  whom  the  gentleman  from  Otsego  had  alluded 
could  speak  for  themselves  in  regard  to  this  matter. 
His  friend  from  Otsego  was  now  in  favor  of  in- 
creasing the  senate  fifty  per  cent.,  making  the 
number  48  instead  of  32  ;  to  send  for  two  years, 
and  of  creating  double  districts,  electing  one-half 
of  the  senate  in  one  year  and  the  other  the  next, 
with  a  view  of  securing  permanency  and  experi- 
ence in  that  body  in  order  to  resist  the  influence 
of  hasty  legislation  and  the  influence  of  popular 
excitement  both  among  the  people  and  in  the 
house  of  assembly.  It  was  but  two  or  three  days 
since  that,  in  debate  on  this  question  he  instituted 
a  comparison  (in  which  he  believed  his  friend 
from  Essex  and  his  friend  from  Ontario,  Mr. 
WORDEN,  united  and  concurred)  between  the  two 
branches  of  the  legislature,  the  senate  and  assem- 
bly, unfavorable  to  the  morality  and  integrity  of 
the  former  body,  and  questioning  the  purity  of 
their  legislative  action  in  times  past.  Now  he 


456 


wishes  to  make  the  senate  the  more  permanent 
body,  in  order  to  resist  the  hasty  and  unsound  le- 
gislation which  maybe  brought  about  through  the 
action  of  the  people  and  the  assembly.  (Mr. 
CHATFIKLD  here  said  it  was  evident  that  the  gen- 
tleman from  Onondaga  did  not  understand  the 
remarks  of  himself.)  Mr.  R.  replied  that  he  did 
understand  him  as  instituting  the  comparison  to 
which  he  alluded,  and  now  clearly  understood 
him  as  advocating  an  increased  number  of  se- 
nators— the  doubling  of  the  districts  and  the  elect- 
ing one-half  of  the  senate  at  alternate  periods,  in 
order  to  secure  permanency  and  experience  in 
that  body.  Mr.  R.  said  he  would  allude  to  an- 
other fact*  If  our  journals  speak  true,  on  the 
15th  of  June  last  Mr.  Chatfield  offered  the  follow- 
ing resolution : 

"  Resolved,  That  it  be  referred  to  standing  committee 
No  1  to  inquire  into  the  expediency  of  increasing  the 
number  of  Senators  to  43,  and  dividing  the  State  into  sin- 
gle districts,  the  Senators  to  be  elected  bienially,  and  to 
hold  their  offices  for  two  years." 

Now,  said  Mr.  R.,  this  Convention  have  done 
just  what  the  gentleman  from  Otsego  desires,  ex- 
cept to  increase  the  number  of  Senators.  On  the  • 
15th  ot  June,  he  desired  the  State  to  be  divided 
into  single  Senate  districts.  This  the  conven- 
tion have  done  by  a  decided  vote.  He  also  de- 
sired, at  that  time,  that  the  Senators  should  "hold 
their  offices  for  two  years"  and  "  to  be  elected 
bienially;"  this  also  the  Convention  have  deter- 
mined should  exist.  The  only  difference,  there- 
fore, between  the  decision  of  the  Convention  and 
the  wishes  of  the  gentleman  from  Otsego,  is  in 
relation  to  the  number  of  Senators.  How  the  fix- 
ing of  these  number  was  to  affect  party  purposes, 
he,  (Mr.  R.)  was  at  a  loss  to  determine. 

Mr.  SIMMONS  hoped  they  would  go  there 
with  the  single  Assembly  districts.  The  Super- 
visors could  do  it,  or  the  legislature  could  do  it ; 
but  all  must  be  done  uniform,  or  some  would  be 
elected  by  single  districts,  and  some  by  general 
ticket — a  plan,  as  Jefferson  said,  where  there  can 
be  no  true  democracy,  but  general  tyranny  to  the 
minority.  He  was  in  favor  of  48  Senators  and 
double  districts,  to  have  two  elected  each  year. — 
He  did  not  want  to  leave  the  interests  of  the 
State  to  the  care  of  17  men,  the  mere  majority  of 
a  majority.  Minorities  had  always  done  more 
good  in  his  county  than  majorities,  and  more  ho- 
nor was  due  them.  It  was  not  necessary  to  drum 
up  votes  to  sustain  the  great  whig  party  in  this 

Air".  CHATFIELD  said  that  gentlemen  must 
recollect  that  even  motion  lie  had  made  on  tins 
floor  since  this  report  had  come  in,  was  tor  48  Se. 
nators,  double  distiicts. 

Mr.  W.  TAYLOR  had  noticed  in  the  papers, 
during  the  period  he  was  detained  from  the  house, 
thbt  during  the  debate,  one  portion  of  the  report 
was  denominated  the  "ride  and  tie"  system— that 
it  had  received  a  K<*d  deal  ot  harsh  treatment, 
and  that  it  did  not  appear  to  have  a  friend  even 
among  the  members  ot  the  committee, to  use  up 
and  speak  one  good  v.oid  lor  it.  He  believed 
however  that  his  colleague  (Mr.  RHOADES)  did 
however  at  List  come  to  the  rescue.  It  had  been 
denounced  again  to  da)  ?  and  the-  gentleman  from 
Oisego  (Mr.  CHATFIELD)  had  characterized  it  as  a 
monstrosity.  Thissjsteui  Mr.  T. said  was  adopted 


in  order  to  secure  the  great  and  important  object 
of  stability  in  the  Senate,  and  at  the  same  time  to 
conform  to  the  public  sentiment,  so  strongly  ex- 
pressed in' favor  of  single  districts.  And  before 
the  provision  was  reported  it  was  ascertained  from 
the  committee  that  they  were  to  provide  ample 
guards  against  any  evils  that  might  be  apprehend, 
ed  from  frauds  and  colonization,  by  reporting;  a 
provision  requiring  a  man  to  have  resided  thirty 
or  sixty  days  in  the  district  where  he  offered  to 
vote  Mr.  T. urged  that  this  system  would  secure 
the  desired  end  ot  bringing  a  fresh  intusion  ot 
public  sentiment  from  the  people  at  large  into  the 
S  nate,  annually.  A  healthy  public  sentiment 
would  be  found  to  be  generally  diffused,  and  not 
confined  to  one  county.  It  was  certainly  better 
than  to  have  the  whole  Senate  go  out  every  two 
years,  and  to  have  a  fresh  one  elected.  There 
were  strong  objections  to  that,  which  he  believed 
the  "ride  and  tie"  system  would. remedy. 

Mr.  STRONG  said  the  whole  debate  of  this 
morning  had  not  advanced  a  single  new  idea,  and 
if  we  went  on  this  way,  we  should  entirely  fail 
to  complete  any  Constitution.  There  were  ma- 
ny gentlemen  here  who  solemnly  believed  that 
such  would  be  the  result.  To  test  the  sense  of 
the  Convention  whether  more  time  should  be 
wasted  in  this  debate  on  an  exhausted  subject, 
he  would  move  the  previous  question. 

The  House  refused  to  second  the  call.  Only 
27  rising  in  favor. 

Mr.  WORDEN  said  the  gentleman  from  Otse- 
go had  alluded  to  him  as  having  changed  his 
ground  upon  this  question.  He  was  in  favor  of  a 
larger  number  than  32,  but  he  was  equally  in  fa- 
vor of  single  districts,  and  he  would  not  hazard 
the  loss  of  the  important  principle  which  had  al- 
ready been  settled  in  former  votes,  by  voting  for 
a  reconsideration.  And  although  he  was  before 
and  was  still,  in  favor  of  an  increase  of  the  Sen- 
ate and  an  election  by  single  districts,  but  he 
should  now  vote  to  sustain  the  decision  which 
the  Convention  had  already  made.  The  gentle- 
man from  New  York  had  alluded  to  the  influence 
of  political  excitement  in  an  election  by  single 
districts.  He  (Mr.  W.)  believed  there  was  much 
more  to  be  feared  from  this  when  the  Senators 
were  elected  in  double  districts.  Twenty-five 
was  a  majority  of  48,  and  with  24  going  out  and 
coming  in  each  year,  it  would  be  a  miserable  mi- 
nority which  could  not  carry  16  members  in  the 
whole  number  ;  and  if  a  popular  delusion  should 
sweep  over  the  state,  which  was  to  effect  its  fi- 
nancial interests,  as  the  gentleman  said  there 
might,  was  it  not  likely  that  it  would  influence 
at  least  eight  or  nine  of  the  districts  ?  and  the 
next  year  the  election  TOuld  give  them  the  con- 
trol of  the  Senate.  But  all  this  talk  about  a  pop- 
ular delusion  was  a  fallacy.  We  should  have 
confidence  in  the  integrity  and  intelligence  of  the 
people.  Until  they  become  too  degraded  and  de- 
based to  be  worthy  of  their  institutions  and  the 
good  laws  which  we  are  here  to  form  for  them, 
there  need  be  no  fear  that  they  will  be  carried 
away  by  any  passing  delusion.  Thirty-two  Sen- 
ators and  single  districts,  he  thought  better  than 
48  with  double  districts,  because  by  single  dis- 
tricts the  representative  was  brought  nearer  home 
to  his  constituents,  which  was  the  desired  object. 
This  question  was  involved  in  the  reconsideration 


457 


of  the  decision  heretofore  made,  and  he  should 
vote  against  the  motion,  for  fear  of  losing  the  sin- 
gle districts.  He  would  be  in  favor  of  an  in- 
crease to  40  Senators,  not  48,  but  he  was  satisfied 
with  32,  and  single  districts. 

Mr   MARVIN  considered  this  question  of  pop- 
ular representation  one  of  the  most  important  that 
could  come  before  us,   and  although  it  had  been 
said  that  considerable  time  had  been  spent  on  the 
report,  yet  very  little  of  it  had  been  devoted  to  this 
question  of  representation.     He  agreed  generally 
with  the  views  of  Mr.  O'CpivoR,  except  that  it 
was  a  cardinal  point  with  him   that  there  should 
be  single  Senate   and  Assembly  districts,  and  he 
would  not  consent,  by  any  vote  of  his,  to  sacrifice 
that  principle.     Every  portion  of  the  St?te  enti- 
tled by  its  members  to  a  representation  in  the  Se- 
nate should  have  the   liberty  of  choosing  them 
and  so  with  the   Assembly.     He   had   urged  the 
other  day  that   the  Senate  should  be  increased  in 
numbers,   and  that  to  entrust  the   Legislation  o 
this  State  in  hands  of  so  small  a  body  was  unsafe 
History  proved  that  oligarchies  were   unfriendly 
to  popular  liberty.     Our  fathers   understood  this 
in  establishing  our  form  of  Government.     Hence 
they  contended  that  the  larger  the  body,  within 
certain   limits,  the  better  and   safer.     He  would 
appeal  to  members  to  say  if  42  or  48  were  too 
many  to   constitute  a  safe  legislative  body  ?     In 
the  "small    State    of  Connecticut   32   might   be 
enough,  but  not  in  this  large  State.     As  it  was 
now,  5  of  the  32  Senators  might  be  situated  with- 
in three  miles  of  each  other,  leaving  only  27  for 
the  rest  of  the  State.     Mr.  M.    alluded  to  the  po- 
sition of  this  Si.  ite,   its  resources,   trade  &c  ,  and 
begged  gerMeman  to  remember  that  nearly  one- 
fourth  of  the  population  of  this  State  was  within 
the  limits  of  our  chartered  cities.     New- York  and 
Buffalo  were  built  up  with  the  commerce,  not  of 
this  State,  but  of  the  nation.     Not  a  hundredth 
part  came  from  this  State.     Buffalo  was  destined 
to  become  the  second  city  of  the  State.     Now  was 
it   safe  for  the  State,   for  the  country,   that  the 
whole  power  should  tall  within  our  cities  ?     His- 
tory showed  such  not  to  be  the  fact,  and  he  referr- 
ed to  Athens  and  Rome   as  an  illustration.     Mr. 
M.  then  spoke  of  the  proper   mode   to  meet  this 
evil.     New  York  sent  now  her  four  Senators,  and 
soon  would  have  six,  and  so  along  up,  and  in  ev- 
ery question  arising  between  that  city  and  country 
they  would  go  together.     He  proceeded  to  exam- 
ine the  statistics  presented   by  the  recent  census, 
showing  that  one-eighth  of  the  Senators  would  be 
controlled  by  the  cities.     By  increasing  the  num- 
ber to  42  you  widened  the  margin  and  gave  the 
country  its  just  due  in  the  division  of  all  questions 
in  which  the  commercial  interests  of  the  cities 
might  not  harmonize  with  those  in  the  country. 
He    alluded  to    the  tact     that  in  other    states,  the 
Conshluiion  hai  provided  guards  against  the  over- 
shadowing   influences    ot    cities,  by    limiting  the 
number  ot   their  represeniation.      This   had  been 
deemed  necessary  to  guard  the  agricultural  coun- 
ties  from    such    influence,   and  the  question    was 
one  which    d  em  a  tided  a   seiirus   consideration. — 
Mr.  M.  had  not    toured  to  see   how  political  par- 
ties might  be  'dfifucu-d  by  this  division.     This  was 
a  question    infinitely  above  mere  party  considera- 
tions.    He  exdmined    the   ratio  of  representation 
under  the  different  numbers  suggested,  arguing  in 

32 


!  favor  of  an  increase  of  Senators,  that  the  constit- 
j  uent  body  might  be  reduced.  He  went  on  to 
|  speak  against  the  principle  of  electing  the  Sena- 
tors all  at  once.  He  would  lengthen  the  term  to 
three  years,  and  elect  one-third  every  year.  This 
would  give  the  people  time  to  reflect  and  for  the 
"sober  second  thought."  He  wanted  the  number 
increased.  As  it  was  now,  with  two  or  more 
counties  united  in  a  district,  there  would  be  no 
chance  for  the  re-election  of  a  Senator,  though  he 
might  be  the  Daniel  Webster  or  the  De  Witt  Clin- 
ton of  the  State.  When  his  two  years  were  up, 
there  would  be  the  end  of  him.  The  other  coun- 
ty would  claim  its  turn,  and  this  was  the  way 
in  which  politicians  always  controlled  this 
matter.  Mr.  M.  referred  to  the  corapremise 
offered  by  him  the  other  day,  and  proceed- 
ed  to  urge  the  adoption  of  a  system,  disre- 
garding county  lines  and  dividing  the  State 
by  towns  which  was  a  perfect  organization. 

Mr.  STEPHENS  thougnt  that  the  question  of 
securing  stability  in  the  Senate,  as  involved  in  the 
two  systems  had  not  been  fully  considered.  Bv 
the  system  that  had  been  adopted,  the  Senate  was 
to  be  elected  all  at  once,  and  the  whole  body  was 
to  come  in  on  the  same  impulse  whatever  might 
be  the  excitement  at  the  Urne.  The  Assembly 
being  also  elected  at  the  same  time  both  houses 
would  naturally  act  on  the  same  impulse.  Mr.S. 
referred  to  the  year  1839  when  bills  passed  the 
Assembly  loaning  the  credit  of  the  State  to  the 
amount  of  $5,000,000  on  account  of  wotks  which 
would  have  cost  $50,000,000,  and  all  of  which  the 
Senate  rejected,  excepting  one  bill  appropriating 
$400,000.  Had  the  two  houses  came'in  together, 
as  was  proposed  in  this  system,  those  bills  would 
probably  have  passed,  and  the  State  involved  in  a 
ruinous  debt.  The  State  had  thus  been  saved  by 
the  Senate,  and  might  be  again.  He  would  prefeV 
even  the  ride  and  tie  system  to  this.  Mr.  S.  said 
he  should  go  for  the  reconsideration  in  the  hope  of 
securing  single  districts. 

Mr.  NICHOLAS  should  vote  for  the  reconside- 
ration in  the  hope  of  getting  an  increase  of  Sena- 
tors, and  thereby  to  restore  the  principle  of  perma- 
nency in  the  Senate,  as  it  now  existed.  He  should 
adhere  to  the  single  district  system,  while  at  the 
same  time  he  preferred  a  three  \ears  term,  as  se- 
curing permanency  and  stability  to  the  body.  He 
saw  no  objections  to  the  ride  and  tie  sys'em — it 
had  been  tested  in  other  States  arid  found  to  work 
well.  Mr  N.  urged  mat  nothing  but  an  increase 
n  representation  would  secure  to  the  agricultural 
counties  their  due  representation  as  compared  to 
'he  cities. 

Mr.  FORSVTH  should  vote  against  a  reconsi- 
deration, because  he  feared  the  single  districtsys- 
tem  would  be  hazarded  by  it.  He  was  however 
still  in  favor  of  an  increase  of  the  Senate,  but  so 
explicitly  did  he  deem  himself  instructed,  by  the 
mass  of  his  constituents,  in  favor  of  the  single  dis- 
;rict  system,  that  he  could  not  consent  to  jeopard  it 
The  Senate  was  no  more  a  check  upon  the  As- 
sembly, than  was  the  Assembly  on  the  Senate, 
and  Mr.  F.  referred  to  a  case  where  the  Senate 
appropriated  $7,500,000  to  certain  banks,  and  in 
which  the  House  refused  to  concur.  As  to  this 
matter  of  popular  impulses,  he  had  no  fears  of 
't.  The  people,  if  wrong,  would  soon  correct 
hemselves. 


458 


Mr.  CHAMBERLAIN  supposed  that  if  any 
Question  was  settled  by  this  Convention  it  was 
that  there  should  be  but  32  Senators.  This  plan 
Mr.  C.  supported  as  a  measure  of  retrenchment, 
as  compared  to  the  plans  proposing  an  increase 
of  the  Senate.  He  did  not  believe  that  the  peo- 
ple desired  this  increase  of  the  Senate,  and  con- 
sequent increase  of  the  expenses  of  government, 
and  should  therefore  vote  against  the  reconsider- 
ation. 

Mr.  HAWLEY  was  in  favor  of  an  increase  of 
the  Senate,  but  opposed  to  the  double  district 
system,  and  should  therefore  for  this  reason  vote 
against  the  reconsideration.  Mr.  H.  also  referred 
to  the  past  action  of  the  legislature,  as  showing 
that  the  Senate  had  been  more  disposed  to  in- 
crease the  State  debt  than  the  Assembly. 

Mr.  TAGGART  briefly  advocated  the  recon- 
sideration and  an  increase  of  the  Senate.  He  did 
not  regard  the  question  of  single  districts  as  in- 
volved in  the  motion. 

Mr.  BASCOM  considered  this  question  as  de- 
cided, and  although  he  had  been  in  favor  of  an  in- 
crease of  the  Senate,  yet  he  should  acquiesce  in 
what  he  considered  the  will  of  the  majority. 

Mr.  O'CONOR  favored  the  reconsideration. — 
lie  preferred  even  the  ride  and  tie  principle  if  se- 
cured against  fraud,  to  giving  up  the  important 
principle  of  stability  and  in  the  Senate. 

Mr.  VAN  SCHOONHOVEN  should  vote 
against  the  reconsideration.  He  believed  that  the 
people  had  not  called  for  an  increase  of  the  Sen- 
ate, and  that  it  would  only  tend  to  increase  the 
expenses  of  government. 

Mr.  BRUCE  considered  this  question  as  settled, 
and  he  would  not  open  it  again,  no  matter  how 
much  he  might  desire  an  increase  of  the  Senate 
for  fear  of  jeopardizing  the  single  district  princi- 
ple. He  should  therefore  vote  against  the  recon- 
sideration. 

Mr.  ST.  JOHN  here  moved  the  previous  ques- 
tion, and  there  was  a  second,  and 

The  main  question  was  then  put,  and  the  Con- 
vention refused  to  reconsider — ayes  89,  noes  79, 
as  follows  : 

AYES — Messrs.  Angel,  Bergen.  Bowdish  Brundage, 
Chatfield,  Conely,  Cornell,  Danibrth,  Dubois,  (r.rdner, 
Hart,  Hunt,  Jones,  Kemble,  Kennedy,  Loomis,  .viann,  Mar- 
vin, -Vhirphy,  Nellis,  Nicholas,  Nicoll,  O'Conor,  Perkins, 
President,  Ruggles,  Shcparl,  Simmons,  \V.  H.  Spencer, 
Stephens,  stetson,  Stow,  Swackhamer,  Taft,  Taggart,  J.  J. 
Taylor,  Tiiden,  Vache,  White—39. 

NOES — Messrs.  Ayrault,  H.  B/ickus,  Bascom,  Bouck, 
Brayton,  Brown,  Bruce,  bull.  Burr,  Cambreleng,  D.  D. 
Campbell.  Candee,  Chamberlain,  Cook.  *  rooker,  Cudde- 
back,  Dana,  Dodd,  Dorlon.  Klanders,  Forsyth,  uebhard, 
Harris,  Harrison,  llawley,  Hotchluss  Hunter,  X.  Hunt- 
ington,  E.  Huntinglon,  Hutehinson,  Hyde,  Jordan,  Kernan, 
Kingsley  ,  Kiikiaud,  Maxwell,  Aliller,  Morris,  Parish,  Pat- 
terson, Penniman,  Portt.T.  Powers.  Ilh^ades,  Richmond, 
Hiker,  St.  John.  Salisbury,  Sears.  Shaver,  Shaw,  Sheldon, 
E  hpencer,  Stanton,  r>trong,  Talhnadgc,  W.  Taylor, 
Townsend,  TuthiU,  Van  Schoonhoven,  Ward,  Warren, 
Wateibury,  Vviib.  ck,  U  ooti,  Vrorden,  W.  B.  Wright, 
Yawger,  Voting,  Youngs— 70. 

The  Convention  then  took  a  recess. 


AFTERNOON  SESSION. 
Mr.  TOWNSEND  moved  that  the  report  of 
committee  No.  1.  on  the  legislature  be  printed  as 
amended.  And  he  then  wished  it  to  lay  on  the 
table  till  the  city  delegation  could  hear  from  New 
York  as  to  what  was  going  to  be  done  in  the  way 


of  apportioning  the   districts   there   by  the   ityc 
Convention  or  altering  the  Ward  lines. 

Mr.  MARVIN  hoped  the  motion  would  not  pre- 
vail. The  city  Convention  had  adjourned  for  a 
month,  and  it  must  therefore  be  some  time  before 
they  district  the  city 

Mr.  TALLMADGE  hoped  they  would  take  the 
vote  at  once  on  the  double  districts  as  proposed 
yesterday. 

Mr.  W.  TAYLOR  hoped  they  would  go  through 
with  and  dispose  of  this  report  without  delay. 

Mr.  TOWNSEND  withdrew  the  motion  to 
print. 

Mr.  W.  TAYLOR  moved  to  go  into  committee 
of  the  whole  on  the  report  on  the  legislature,  so 
that  it  might  be  reported  to  the  Convention  in 
form.  He  did  not  believe  there  would  be  any 
further  motions  to  amend  it  in  committee. 

This  was  agreed  to,  and  Mr.  PATTERSON  took 
the  chair. 

Mr.  MURPHY  moved  to  reconsider  the  vote 
which  refused  to  add  Richmond  county  to  Queens 
and  Suffolk.  He  had  been  detained  in  his  com- 
mittee room  when  the  subject  was  up  before. — 
The  committee  now  present  must  understand  the 
situation  of  the  two  districts — by  putting  Rich- 
mond to  Queens  and  Suffolk,  it  interferes  with 
the  arrangements  of  no  other  counties ;  it  is  mere 
ly  a  question  between  the  first  and  second  dis- 
tricts, and  it  meets  the  approbation  of  committee 
No.  1.  Queens  and  Suffolk  have  38,000  repre- 
sentative population — Kings  has  61,000.  It  is 
most  proper  that  Richmond  should  go  with  the 
two  first.  Kings  besides  was  a  growing  county, 
and  increased  in  population  very  fast.  He  had 
so  fully  discussed  the  merits  of  this  on  former  oc- 
casions, that  he  wouldjnot  go  over  the  argument 
again. 

Mr.  HARRISON  said  that  gentleman  desired 
to  put  Richmond  on  to  the  first  district  not  for 
any  good  motives,  but  to  make  political  capital. 
They  could  not  by  any  arrangement  of  figures 
make  anv  better  district  than  that  made  by  com- 
mittee No.  1.  He  did  not  feel  it  necessary  now 
to  detain  the  committee  by  passing  again  over 
the  ground  he  went  over  yesterday.  No  other 
arrangement  could  be  made  with  propriety,  and 
the  principle  oi  contiguity  should  be  preserved 
throughout. 

Mr.  CAMBRELENG  said  that  neither  Queens 
or  Suffolk  hai  yet  interfered  in  this  quarrel  be- 
tween Kings  and  Richmond.  Suffolk  and  Queens 
have  some  few  thousand  less  population  than 
Kings.  The  only  question  should  be  as  to  wheth- 
er contiguous  counties  are  to  be  placed  in  the 
same  district ;  or  whether  you  will  travel  with 
one  county  over  a  second  county,  to  place  it  in  a 
district  with  two  centre  counties.  Suffolk  and 
Queen's  have  abt-ut  10,000  deficiency,  and  with 
Richmond  they  will  have  still  2000  or  3000.  It 
is  not  a  matter  of  the  slighest  moment  in  the 
world  ;  because  in  either  case  it  is  not  all  proba- 
ble that  Richmond  would  ever  have  a  member. 
The  argument  of  contiguity  is  the  only  one  to  be 
observed;  and  as  the  gentleman  from  Richmond 
was  so  very  anxious  to  be  united  to  Kings,  he 
hoped  he  would  be  accommodated. 

A  count    was  called  on  Mr.  MURPHY'S  mo- 
tion.    Ayes  17,  noes  40 — No  quorum. 
A  second  count  gave  ayes  32,  noes  47. 


459 


The  motion  was  lost. 

Mr  CHATF1ELD  moved  that  the  committee 
risf  and  report. 

Mr  SHEPARD  hoped  he  would  withdraw  it 
lor  a  few  moments,  as  the  N.  Y.  city  delegation 
desired  to  offer  some  amendments. 

Mr   C.  did  so. 

Mr.  KENNEDY :  Before  this  committee  report 
the  article,  it  is  necessary  that  some  arrangemen 
should  be  made  of  the  senate  districts,  in  the'cit; 
of  New- York,  other  than  that  reported  by  com 
mittee  No.  1.  In  submitting  a  plan  of  differen 
arrangement,  he  was  not  of  opinion  that  it  wa 
the  very  best  disposition  that  could  be  effected 
after  a  more  careful  examination,  for  if  the  di 
vision  is  obliged  to  be  made  now,  it  is  necessary 
to  consult  ward  boundaries,  as  they  exist.  In 
that  case,  he  thought,  the  plan  he  should  have  th< 
honor  of  presenting,  would  prove  the  best,  fo: 
the  present  and  prospective  population  of  the  city 
He  would  concede,  however,  that  a  still  hetter  plar 
could  be  made  by  dividing  wards,  without  retjar 
to  any  present  lines,  or  even  by  following  election 
district  boundaries.  Jkit  either  of  these  miuh 
lead  to  conf-ision,  or  other  difficulties,  in  polling 
the  votes.  He  had  had  but  slight  opportunity  o 
Consulting  his  colleagues,  and  might  say  they  are 
brought  to  act  on  this  matter,  at  a  moment  wher 
they  are  totallv  unprepared  for  it.  Almos 
*very  member  of  his  delegation  had  c^n' inner 
to  hope  that  the  Convention  would  eventually 
adopt  double,  or  larger  districts — and  that  this 
division  would  be  rendered  useless.  Indeec 
he  still  had  faint  hope  that  the  Convention 
before  it  adjourned,  would  see  the  injustice 
done  to  tlw  city  of  New  York  by  obliging  a  di 
vision  of  it  into  four  separate  districts,  and  retrace 
its  steps.  But  the  alternative  was  now  forced 
upon  them  either  to  submit  to  the  division  pro- 
posed by  the  standing  committee,  or  to  offer  an 
other,  which  latter  he  should  do.  He  then  pro- 
posed to  amend  that  portion  which  defined  senate 
districts  Nos.  3,  4,  5  and  6,  so  as  to  read  as  foi 
lows  : 

"  Dist.  No,  3  shall  consist  of  the  1st,  3d,  6th,  6th  and  8th 
Wards  of  the  city  of  New  York 

Dist  No.  4  sha'll  consist  of  the  3d,  4th,  7th,  10th  and  13th 
Wards. 

Dist.  No.  d  shall  consist  of  the  llth,  14th,  15th  and  17th 
Wards. 

Dist.  No.  6  shall  consist  of  the  9th,  12th,  16th  and  18th 
Words." 

The  committee,  in  laying  out  these  districts, 
seemed  to  be  influenced  solely  by  a  desire  to  pre- 
sent them  in  a  form  that  would  look  well  on  the 
map,  without  regard  being  paid  in  the  slighest  de- 
gree to  their  several  local  interests,  or  their  pre- 
sent or  prospective  population.  They  had  taken 
the  first  six  consecutive  wards  as  district  No.  3, 
with  ;i  representative  population  of  only  (57,vJS  ; 
being  deficient  of  the  true  ratio  7,436.  This  de- 
ficiency is  made  to  exist  in  a  portion  of  the  city 
which  is  the  oldest,  where  but  few  dwellings 
more  can  be  built,  and  where  population  is 
rather  on  the  decrease  than  increase.  It  is 
that  part  of  the  city  where  dwelling  houses 
are  continually  being  changed  into  stores, 
and  where,  if  dwelling  houses  are  erected,  the 
new  ones  are  not  likely  to  be  so  populous  as  those 
they  are  designed  to  replace.  At  the  end  of  ten 
years,  the  deficiency,  most  likely,  would  be  found 


to  have  been  doubled  :  particularly  when  com- 
pared with  the  portion  of  the  city  most  effected 
by  the  change  made  in  the  basis  of  the  represen- 
tative number,  by  'this  Convention,  since  the 
committee  made  their  report,  and  prepared  the 
j  table  of  population  annexed  to  it.  The  increase 
made  in  the  representative  number,  in  the  State, 
by  the  change  alluded  to,  is  less  than  9,000;  of 
which  number  the  county  of  New-York  gains 
nearly  two  thousand  [1957]  or  about  one-fourth 
of  the  whole  amount  of  increase.  The  true  ratio 
of  a  Senate  district  is  now  75,264,  instead  of  74,- 
985  as  calculated  by  the  committee;  and  the  rep- 
resentative population  in  district  No.  3,  as  he 
proposed  to  form  it,  would  be  73,439  reducing  the 
deficiency  to  only  1,825.  The  alteration  of  the 
base  of  representation  has  made  no  sensible 
change  in  the  representative  population  in  the 
wards  comprising  this  district ;  although  it  has 
increased  the  ratio,  and  thereby  made  the  defi- 
ciency greater  than  reported  by  the  committee. 
The  increase  in  the  1st  ward  is  but  one;  2d  ward 
none ;  in  the  3d  ward  forty-one,  in  the  4th  ward 
two,  in  the  5th  ward  eight,  in  the  6th  ward  twen- 
ty-four, and  in  the  8th  ward  17.  He  would  not 
dispute  that  compactness  of  form  may  not  be  of 
some  importance  to  districts  covering  a  large 
territory ;  but  what  gentlemen  seemed  most 
to  desire  for  themselves  in  so  strongly  insist- 
ing on  single  districts,  was  that  their  several 
local  interests  should  be  separated  as  much 
as  possible,  and  each  allowed  its  peculiar  rep- 
resentation in  the  Senate.  Now,  he  would  in- 
form gentlemen,  that  the  city  with  its  large 
population,  and  their  various  occupations,  has 

distinctly    marked,    and  as  stion^lv  lelt  local 
interests,  PS  any   one    portion  of  the  State    has  to 
another.     He  might  say  as  strong  as  between  the 
i'y  of  New  York  and  the  county  of  Cnautauque. 
[n  his  plan  of  an  amendment  these  interest  have 
been   consulted,  and  it  has  been   constructed  ac- 
cordingly.    The  eighth,  fitth,  third  and  first  wards 
lie  along  the  North  River.     The  sixth  lies  behind 
he  third    and  filth,   arid    stretches   along   facing 
ttiem  nearly    the   entire  length.       Their  interests 
are  identical,  and    known  as  the   North  River  in- 
erest.     The  2d  and  4th  wards  lie  entirely  on  the 
East  River  side,  and    along  its  margin.     The  in. 
eresrs   of  these    waid*   ate  totally  di.stinct    from 
hose  ot  the  other  wards  named;    should  not  form 
a  part  of  the  s.mio  local  district;  and  besides,  con. 

togei  her  only  a  representative  population  of 
^1,104,  while  the  Sth  ward  has  26,039  and  is  lia- 
ble to  a  considerable  increase.  '1  ht;  committee 
>ropose  to  form  l\\e  fourth  district  of  the  7th,  10th, 
3th  and  14th  ward?.,  which  would  undoubtedly 
e  near  the  ratio,  if  representative  population 
lone  is  considered;  but  coniiguity.  as  well  as 
dentity  in  interest,  requires  the  2d  and  4th  wards 
o  be  united  with  a  portion  of  these.  For  the 
fh  arid  13th  wards  are  also  on  the  East  River,  and 
he  10'h  immediately  adjoining  and  paitially  sur- 
ounded  by  them.  Theus  is  the  East  River  inter- 
st:  a  peculiarly  disiinct  local  interest;  one  that 
nay  not  only  be  said  to  have  none  in  the  Stale 
ke  it  ;  but  none  approaching  a  tesemblance  to  it. 
'his  district  c  mid  not  he  formed  by  ward  bound- 
rics,  without  a  considerable  excess,  it  being 
,860.  But  with  the  exception  of  the7ih  they  are 
erisely  populated,  and  rot  susceptible  of  increase. 


460 


The  Fifth  District,  consisting  of  the  llth,  14th, 
15th,  and  17th  wards,  he  presented  with  an  ex- 
cess of  3,328,  instead  of  a  deficiency  of  4,965, — 
This  excess  was  unavoidable  in  classing  the  cen- 
tre wards  of  the  city,  who  had  .a  similarity  of  inS 
terest,  distinct  from  that  of  the  two  lower  dis- 
tricts. The  excess  however,  was  smaller  in  his 
plan  than  the  deficiency  was  in  that  of  the  com- 
mittee, and  therefore  more  just.  And  the  geo- 
graphical position  was  equally  proper,  compris- 
ing as  it  did  the  centre  of  the  city.  The  Sixth 
District  was  well  formed  of  the  remaining  wards, 
the  9th,  12th,  16th  and  18th;  taking  in  the  whole 
upper  part  of  the  city,  with  its  peculiar  interest. 
It  presented  a  deficiency  of  9,900,  and  properly 
so,  for  this  is  emphatically  the  increasing  portion, 
for  where  one  dwelling  house  has  been  erected  in 
all  the  other  wards,  there  has  been  three  in  these 
wards.  The  future  increase  of  the  whole  city  is 
to  be  mainly  in  their  limits ;  and  at  the  next 
arrangement  of  the  Districts  this  would  be  found 
to  have  an  excess  much  larger  than  its  present 
deficiency — possibly  three  fold.  He  was  not  anx- 
ious to  press  this  to  a  vote  now.  He  preferred, 
could  it  be  done,  to  let  it  lie  over  and  be  examined 
carefully.  That  it  should  be  compared  with  the 
map,  and  the  propriety  of  this  or  any  other  ar- 
rangement, if  ward  lines  as  they  at  present  exist, 
are  to  be  observed.  He  would,  however,  much 
rather  the  committee  would  defer  final  action  un- 
til the  city  convention  would  have  full  opportu- 
nity to  re-arrange  the  wards,  which  is  one  of  the 
main  objects  of  holding  that  Convention.  Should 
these  Districts  be  now  deficiently  fixed,  he  feared 
the  rotten  borough  system  of  wards,  with  which 
the  city  of  New- York  has  been  long  cursed, 
would  be  continued  for  at  least  ten  years  longer. 
This  he  would  deplore,  and  so  would  every  right 
minded  man.  He  then  presented  the  following 
table  of  the  true  representative  number  in  each 
ward,  arranged  according  to  the  districts  he  pro- 
posed to  form. 

Third  Senate  District.  Fourth  Senate  District. 

9,84-2  |  2d  Ward, 

8,851  |  4th    do 

14,915     7th    do 

13,192     10th  do 


1st  Ward 
3d    do 
5th   do 
6th   do 
8th    do 


26,639  |  13th  do 


5,246 
15,858 
21,935 
18.019 
19,036 


73,439  | 

Deficiency  1,825  j 

Fifth.  Senate  District. 
llth  Ward,  21,940  j  9th  Ward 

14th        do  17,llti  I  12th      do 

loth        do  17,098  |  16  &.  18th 

17th        do  22,124  | 


80,124 

Excess  4,860 

Sixth  Senate  District. 
26.308 
10,340 
28,716 


Deficiency 


65,364 
9,900 


78)592  | 
Excess.  3,328  | 

He  concluded  by  saying  that  the  great  disparity 
perceptible  in  the  several  wards,  by  the  above,  did 
no  .show  to  its  full  txtent  that  which  existed  in 
actual  population.  The  federal  representative 
number  would  greatly  increase  it ;  and  it  was  one 
of  the  most  desirable  of  reforms  that  the  wards 
should  be  equalized  as  near  as  may  be,  and  provi- 
sion made  lor  a  re-arrangement  oi  them  as.fre 
quently  as  apportionment  <>f  representatives  is 
made  for  the' Legislature.  It  would  undoubtedly 
be  best  to  defer  acting  on  these  lour  disi riots  until 
the  new  boundaries  of  the  wards  could  be  known. 

Mr.  WARD  asked  Mr.  KENNEDY  if  the  New 


York  city  delegation  concurred  with  him  in  this 
plan  ? 

Mr.  KENNEDY  answered  that,  all  the  gentle- 
men of  the  delegation  whom  he  had  spoken  to  on 
this  matter  agreed  with  him  in  the  propriety  of 
presenting  this  plan  at  this  time. 

Mr.  WARD  remarked  that  he  felt  it  his  duty  to 
take  that  opportunity  to  say,  in  view  of  some  re- 
marks wh»ch  had  fallen  from  members  of  the 
New  York  delegation  in  relation  to  delegates  from 
the  country,  that  there  was  no  disposition  on  the 
part  of  the  latter  to  take  any  course  which  would 
result  in  injury  to  the  great  commercial  metropolis. 
For  one,  he  had  no  such  desue — others  had  no 
desire  lo  intertere  with  the  interests  of  that  great 
county;  and  those  who  supposed  so  did  the  other 
members  of  the  Convention  great  injustice,  and 
he  believed  that  if  the  delegation  from  that  city 
could  present  a  plan  which  they  believed  would 
do  them  greater  justice  than  that  reported  by  the 
committee,  there  would  not  be  the  least  objec- 
tion to  adopting  it.  He  wished  lo  say  in  justice 
to  the  Hon.  Chairman  of  committee  No.  1,  that 
he  retired  to  his  chamber,  prepared  his  tables  and 
perfected  his  airangement  of  the  several  districts, 
without  consulting  a  single  member  in  relation 
to  their  preferences.  He  had  said  nothing  to 
himself  in  relation  to  Weatchestei,  a:  d  he  believ- 
ed that  others  could  repeat  the  same  declaration. 
He  had  prepared  the  best  plan  that  he  could 
possibly  devise;  and  if  the  delegates  could  show 
injustice  or  inequality,  or  point  out  a  icmedy 
therefor,  no  doubt  it  would  beadopied. 

Mr.  SHEPARD  thought  that  the  committee 
had  not  reported  a  plan  judicious  in  all  respects. 
He  (Mr.  S.)  represented  a  district  that  had  not 
been  well  dealt  with.  The  llth,  12th,  16th,  17th 
and  18th  Wards  constituted  a  district  wherein 
the  increase  of  population  was  rapid,  yet  here  an 
excess  of  over  6000  is  awarded  by  the  committee, 
while  a  dsficiency  of  7000  is  made  in  a  district 
the  population  of  which  is  increasing  but  slowly. 
He  (Mr.  S.)  would  show  this  from  a  comparison- 
ed  statement  of  the  population  of  several  of  the 
Wards.  The  1st.  Ward  had  in  1830,  a  population 
of  11, 237;  in  1835,  10,380;  in  1840,  10,029;  in 
1845,12,230;  the  2d  Ward  in  1830,  8.202;  in 
1835,  7,549  ;  in  1840,  6,408  ;  and  in  1845,  6,972; 
the  3d  Ward  in  1830,  9,649  ;  in  1835,  10,884 ;  in 
1840,  11,581 ;  and  in  1845,  11,900.  The  increase 
in  the  4th,  5th,  and  6th  Wards  was  large  in  pro- 
portion, and  would  be  found  upon  reference  to 
page  349  of  the  manual.  It  amounted  in  the  five 
years  before  1845,  to  something  over  8,500.  At 
this  rate  of  increase  the  deficiency  would  be  very 
slowly  made  up.  Now  he,  (Mr.  S.)  would  look 
at  the*mcrease  in  the  district  No  6,  where  the  com- 
mittee had  apportioned  an  excess  of  nearly  7000. 
There  the  increase  had  been  over  38,500.  It  was 
clear  therefore  that  the  excess  had  been  cast 
where  the  deficiency  should  have  been,  and  the 
converse.  The  matter  of  dividing  the  territory 
and  allotting  members  of  the  Senate  was 
full  of  difficulties,  but  he  (Mr.  S.)  was  pre- 
pared to  give  his  assent  to  the  plan  of  his  col- 
league (Mr.  KENNEDY).  The  excesses  and  defi- 
ciencies in  that  plan  were,  comparatively  speak- 
ing, small.  The  principal  deficiency  was  thrown 
into  the  9th,  12th,  16th  and  18th  Wards,  which 
taken  as  a  district  increased  more  rapidly  than 


461 


any  other  part  of  the  city,  or  he  would  say  of  the 
State.  Within  the  five  years  next  before  1845 
that  increase  had  been  within  a  slight  fraction  of 
',  and  within  the  next  five  years  he  was 
confident  that  the  increase  would  be  far  greater. 
Here  was  where  it  ought  to  be  thrown  to  answer 
the  purposes  of  a  just  rule  of  representation.  It 
was  true  that  the  districts  were  not  so  compact 
in  their  form  as  they  might  be  made  in  the  coun- 
try counties,  but  this  grows  out  of  the  strange 
shapes  and  different  population  and  location  of 
the  several  wards.  In  those  counties  the  towns 
are  generally  laid  out  in  a  shape  as  nearly  square 
as  practicable  by  the  surveyor,  and  without  much 
reference  to  the  number  of  population  ;  but  it  has 
been  otherwise  with  the  wards  in  the  city  of  New 
York.  He  (Mr.  S.)  hoped  the  proposition  of  his 
colleague  would  be  adopted,  unless  the  Conven- 
tion would  leave  the  matter  to  the  City  Conven- 
tion or  the  Board  of  Supervisors. 

Mr.  KIRKLAND  desired,  before  voting  upon 
this  question,  to  inquire  of  the  gentleman  from 
New- York  who  was  a  member  of  committee  No. 
1,  the  reason  for  his  giving  an  assent  to  the  re- 
port of  that  committee. 

Mr.  MORRIS,  after  saying  that  he  believed  the 
plan  now  proposed  was  far  better  than  that  origi- 
nally made  by  the  committee,  (and  he  said  this 
without  in  any  measure  imputing  a  want  of  judg- 
ment or  fairness  on  the  part  of  committee  No.  1,) 
moved  to  pass  this  subject  over,  that  the  delega- 
tion from  New-York  might  have  opportunity  to 
examine  it — as  he  supposed  all  others  would  like 
to  have  an  opportunity  to  do  with  regard  to  their 
own  counties  .nid  come  to  some  general  agreement 
upon  an  apportionment. 

Mr.  W.  TAYLOR  was  willing  and  desirous,  if 
any  better  or  more  satisfactory  division  could  be 
made  in  the  city  of  New  York,  that  it  should  be 
done.  But  he  suggested  that  a  vote  should  be 
taken  in  committee  now,  in  order  to  dispose  of 
the  subject  in  committee  ;  and  subsequently  in  the 
Convention  any  amendment  might  be  made  which 
might  be  found  necessary  or  proper. 

Mr.  O'CONOR  approved  of  the  suggestion  of 
Mr.  TAYLOR,  and  hoped  it  would  prevail.  He 
also  expressed  his  belief  that  the  plan  proposee 
by  Mr.  KENNEDY  was  an  improvement  upon  thd 
report,  from  the  slight  examination  he  had  been 
able  to  give. 

The  debate  was  further  briefly  continued  by 
Messrs.  O'CONOR  and  MANN . 

Mr  VVlil  1  K,  in  reply  u>  Mr.  KIRKLAND,  said 
as  one  ot  comn.ittee  No  1,  he  had  endeavored  to 
secure  as  just  and  equitable  division  ot  the  city  as 
he  thought  possible.  He  did  not  take  into  cons  - 
deration  the  fact  that  the  upper  part  ot  the  city 
was  increasing  the  fas-test  in  population.  II  his 
colleagues  preferred  the  amendment,  he  would 
not  object,  but  he  still  insisted  that  the  dm.-jon 
reported  by  the  committee  was  as  just  and  equita- 
ble as  any  other. 

Mr.  TOWNSEND,  after  a  few  remaiks,  moved 
to  transler  the  2d  ward  to  the  3d  Senatorial  Dis- 
trict. 

Mr.  RHOADES  moved  to  pass  over  the  four 
New  York  distncis,  to  give  time  to  the  delegation 
from  that  city  lo  consult  together  and  agree  upon 
some  division. 

This  was  assented  to. 


No  amendments  were  offered  to  any  of  the  dis- 
tricts from  No.  7  to  24,  inclusive. 

Mr.  MAXWELL  moved  to  transfer  Yates  to 
the  25th  district,  and  Chemung  to  the  26th.  A- 
greed  to. 

The  others  were  agreed  to  without  change. 

Mr.  TOWNSEND  moved  to  amend  the  first 
section  so  that  it  would  read  :— 

^  1.  The  gtnerul  Legislative  power  of  this  State  shall  be 
vested  in  a  Senate  arid  Assembly. 

This  was  rejected. 

Mr.  STOW  moved  to  change  the  last  sentence 
of  the  Gth  section  so  that  it  shall  read  as  follows: 
**  And  no  county  shall  be  divided  in  the  forma- 
tion of  a  Senate  district,  except  such  county  shall 
be  equitably  entitled  to  two  or  more  Senators." 
Agreed  to. 

Some  verbal  alterations  were  made  in  some  of 
the  sections. 

Mr.  MARVIN  moved  to  amend  the  2d  section, 
so  as  to  authorize  the  Legislature  after  1855,  to 
increase  the  number  of  Senators  to  not  exceeding 
50,  and  the  Assembly  not  exceeding  150.  Lost. 

The  committee  then  rose  and  reported  the  ar- 
ticle to  the  Convention,  and  it  was  laid  on  the 
table  and  ordered  printed  as  amended. 

The  Convention  then  adjourned. 


THURSDAY,  (49th  day,)  July  30. 

Prayer  by  the  Rev.  Mr.  MCDONOUGH. 
CANALS,  FINANCES,  &c. 

Mr.  HOFFMAN  rose  and  said  that  he  had  been 
directed  by  the  committee  on  finance,  &c.,  No.  3, 
to  present  the  following  report.  The  state  of  his 
health  would  not  permit  him  to  read  it  out,  and 
he  would  therefore  send  it  to  the  Clerk's  desk: 

ARTICE  

O/i  the  existing  debts  and  liabilities  of  the  Slate,  and  to  pro- 
vide for  the  payiiLtnl  thereof. 

§  1.  Alter  paying  the  expenses  01  collection,  superin- 
tendence, and  ordinary  repans,  one  million  and  five  hun- 
dred thousand  dollars  "($1,600000)  ot  the  revenues  of  the 
State  canals  shall,  in  eacn  fiscal  year,  and  at  that  rate  lor  a 
shorter  period,  commencing  on  the  lirst  day  olJune,  1S46, 
be  set  apart  as  a  sinking  tund  to  pay  -he  intere:i  and  re- 
deem the  principal  of  that  part  oi  the  state  dr bt  called  the 
canal  debt,  as  it  existed  at  the  time  aloresaid,  an  i  includ- 
ing three  hundrea  thousand  dolUrs  ihen  to  be  borrowed, 
until  ihe  same  shall  be  wholly  paid;  and  the  principal  and 
income  of  the  said  sinking  fund  shall  be  sacredly  applied 
to  that  purpose. 

^  2.  In  liquidation  of  the  state  claims  for  advances  to,  and 
payments  lor,  the  canals,  six  hundred  and  seventy -two 
thousand  anu  five  hundred  dollars,  (ri7'2  500)  of  the  reve- 
nues of  said  canals  shall  forever,  in  each  fi-.c;iJ  year,  and 
at  that  rate  for  a  shorter  period,  commt  ncins  on  the  first 
day  of  June,  1S46,  be  paid  into  the  treasury  lor  the  use  of 
the  state;  and  if  tlie  pa\  meat  ol  that  sura  or  any  part  there- 
of shall  be  delayed  by  reason  oi  the  priority  estab  isned  in 
the  preceding  section,  die  amount  so  delayed  with  a  quar- 
terly interest  thereon  at  U;e  then  curreni  rate,  shall  ue  so 
paid  out  01  the  sai.i  revenues  aj  soon  a*,  can  be  done  con- 
sis'entiy  with  such  priority 

§  3.  The  surplus  of  the  revenues  cl  'he  canals,  after  pay« 
ing  the  said  expenses  of  the  canals,  an  1  the  sums  appropri- 
ated  by  the  two  preceding  sections,  shall  in  each  fiscal 
year  be  applied  to  the  improvement  oi  the  Erie  canal, 
in  such  manner  as  may  be  directed  by  law,  until  such  sur- 
plus shall  amount,  in  the  aggregate,  to  the  sum  of  two  mil- 
lions and  five  hundred  thousand  dollars. 

(54.  Of  the  sum  of  six  hundred  and  seventy-two  thousand 
and  live  hundred  dollars,  required  by  the  second  section  of 
this  article  to  be  paid  into  the  Treasury,  live  hundred  thou- 
sand dollars  ($500,000)  shall,  in  each  fiscal  year,  and  at 
that  rate  for  a  shorter  period,  commencing  on  the  fir.4  day 
of  June,  1846,  be  set  apart  as  a  sinking  fund  to  pay  the  in- 
terest and  redeem  the  principal  of  that  part  of  tue  State 
Debt  called  the  General  Fund  Debt,  including  the  debt  for 


462 


loans  of  tho  State  credit  to  Railroad  Companies  which  have 
failed  to  pay  the  interest  thereon,  and  also  the  contingent 
debt  on  State  stocks  loaned  to  incorporated  companies, 
which  have  hitherto  paid  the  interest  thereon,  whenever 
and  as  far  as  any  part  thereof  may  become  a  charge  on  the 
Treasury  or  General  Fund,  until  the  same  shall  be  wholly 
paid;  and  the  principal  and  income  of  the  said  last  men- 
tioned sinking  fund  shall  be  sacredly  applied  to  the  pur- 
pose  aforesaid;  and  if  the  payment  of  any  part  of  the  said 
five  hundred  thousand  dollars  shall  at  any  time  be  deferred 
by  reason  of  the  priority  recognized  in  the  second  section 
of  this  article,  the  sum  so  deferred,  with  quarterly  interest 
thereon,  at  the  then  current  rate,  shall  be  paid  to  the  last 
mentioned  sinking  fund,  as  soon  as  the  sum  so  deferred 
shall  be  received  into  the  Treasury. 

^  5.  The  claims  of  the  State  against  any  incorporated 
company  to  pay  the  interest  and  redeem  the  principal  of 
the  stock  of  the  State  loaned  or  advanced  to  such  company, 
shall  be  fairly  and  duly  enforced,  and  not  deferred,  released 
or  compromised;  and  the  moneys  arising  from  such  claims 
shall  be  set  apart  and  applied  as  part  of  the  sinking  fund 
provided  in  the  fourth  section  of  this  article. 

^  6.  If  the  sinking  fund,  or  either  of  them  provided  in  this 
aricle,  shall  prove  insufficient  to  enable  the  State  on  the 
credit  of  such  fund,  to  procure  the  means  to  satisfy  the 
claims  of  the  creditors  of  the  State  as  they  become  payable, 
the  Legislature  shall  by  equitable  taxes  so  increase  the  re- 
venues of  the  said  fund  as  to  make  them  respectively  suf- 
ficient perfectly  to  preserve  the  public  faith.  Every  con- 
tribution or  advance  to  the  canals  or  their  debts  from  any 
source  other  ihaii  their  direct  revenues,  shall,  with  quar- 
terly interest,  at  the  rates  then  current,  be  repaid  into  the 
Treasury  for  the  use  of  the  state,  out  of  the  canal  icven- 
ues,  as  soon  as  can  be  done  consistently  with  the  just  rights 
ol  the  creditors  holding  the  said  canal  debt. 

§  7.  The  Legislature  shall  not  sell,  lease,   or  otherwise 
dispose  of  any  of  the  canals  of  this  State,  so  far  as  the  same 
are  now  finished  and  navigable,  but  they  shall  remain  the 
property  oithe  state,  and  under  its  management  jorever. 
By  order  of  the  Committee. 

MICHAEL  HOFFMAN,  Chairman. 

Mr.  HOFFMAN  said  that  after  the  decided  opin- 
ion  of  the  Convention,  expressed  in  the  early  part 
of  its  session  by  a  formal  vote  that  it  would  be  in- 
expedient for  a  committee  to  accompany  their  re- 
port with  any  extended  remarks  by  way  of  assign- 
ing their  reasons,  lengthened  observations  on  the 
merits  of  this  measure  at  this  time  would  be  entire 
ly  out  of  place.  He  did  not  design  to  do  this  now, 
but  vyhen  the  subject  should  come  before  the  Con- 
vention in  committee  of  the  whole,  or  in  the  body 
of  the  house,  he  would  avail  himself  of  that  op- 
portunity to  lay  before  it  the  reasons  that  had  in- 
duced him  to  unite  with  the  committee  in  this  re- 
port. In  the  end  or  ends  to  be  attained  by  it — 
the  payment  of  the  state  debt,  and  the  settlement 
of  all  claims  between  the  canals  on  the  one  side 
and  the  state  on  the  other — he  believed  the  com- 
mittee were  unanimous.  But  on  so  vast  a  sub- 
ject as  the  public  debt  and  the  finances  of  the 
state,  involving  such  complicated  and  minute  cal- 
culations, although  he  believed  that  every  mem- 
ber of  the  committee  had  endeavored  as  well  as 
his  leisure  would  permit,  and  had  used  all  possi- 
ble industry  to  make  calculations  to  aid  his  judg- 
ment, yet  some  of  them  had  not  had  the  opportu- 
nity to  make  those  calculations  as  minute  as  they 
desired,  and  they  would  therefore  have  it  distinct- 
ly understood  that  in  the  attempt  to  perfect  these 
provisions — in  giving  to  them  more  consideration 
— they  reserved  to  themselves,  what  he  supposed 
was  not  only  their  right,  but  a  right  of  which  he 
further  supposed  they  could  not  divest  themselves 
— the  privilege  of  conforming  to  the  last  and  best 
convictions  which  they  should  arrive  at  in  their 
study  of  the  subject.  With  these  observations, 
which  he  hoped  would  do  justice  to  every  member 
of  the  committee,  he  moved  that  the  report  should 


be  printed,  and  referred  to  the  committee  of  the 
whole. 

The  motion  was  agreed  to. 

Mr.  HOFFMAN  again  rose,  and  said  he  was 
directed  by  the  committee  on  Finance.  No,  3,  to 
make  the  following  report. 

ARTICLE . 

On  the  power  to  create  Juture  Slate  debts  and  liabilites, 
and  in  restraint  thereof. 

1.  No  money  shall  ever  be  paid  out  of  the  Treasury  o 
this  State,  or  any  ot  its  funds,  or  any  of  the  funds  under  its 
management,  except  in  pursuance  of  an  appropriation  by 
law,  nor  unless  such  payment  be  ma.le  within  two  years 
next  after  the  passage  of  such  appropiiation  act;  and  every 
such  law  making  a  new  appropriation  or  continuing  or  re- 
viving an  appropriation  shall  distinctly  specify  the  sum 
appropriated  and  the  object  to  which  it  is  to  be  applied} 
and  it  shall  noi  be  sufficient  for  such  law  to  refer  to  any 
other  law  to  tixt-uch  sum. 

§  -2.  TUe  credit  of  the  State  shall  not,  in  any  manner,  be 
given  or  loaned  to,  or  in  aid  of,  any  individual,  a;  sociation 
or  incorporation. 

§  3.  '1  he  State  may,  to  meet  casual  deficits  or  failures  in 
revenues,  or  for  expenses  not  provided  lor,- contract  debts, 
but.  such  debts,  direct  or  contingent,  singly  or  in  theaggre- 
gate,  shall  not,  at  any  time,  exceed  one  million  of  dollars, 
and  ihe  moi  eys  arising  from  the  loans  creating  such  debts 
shall  be  applii'd  to  the  purpose  for  which  they  were  obtain- 
ed, or  to  repay  the  debt  so  contracted,  and  to  no  other  pur 
pose  whatever. 

&  4.  In  addition  to  the  above  limited  powers  to  contract 
debts  the  State  may  contract  debts  to  repel  invasion,  sup- 
press insurrection,  or  defend  th«  Stat  in  uarj  but  the  mo- 
ney arising  from  the  contracting  of  such  debts  shall  be  ap- 
plied to  the  purpose  for  which  it^was  raised,  or  to  repay 
such  debts,  and  to  no  other  purpose  whatever. 

§  6.  Except  the  debts  specified m  the  third  and  fourth  sec- 
tions oi  this  article,  no  debtor  liability  shall  be  hereafter 
contracted  by  or  on  behalf  of  this  State,  unless  Mich  debt 
shall  be  authorized  by  a  law  for  soiiie  single  work  or  ob- 
ject, to  be  distinctly  specified  therein,  and  such  law  shall 
impose  and  provide  for  the  collection  of  a  direct  annual 
tax,  to  pay,  and  sufficient  to  pay  the  interest  on  such  debt 
as  it  falis  duf ,  and  also  to  pay  and  discharge  the  principal 
on  such  debt  within  eighteen  years  from  the  time  ol  the 
contracting  (hereof.  ISo  such  law  shall  take  effect  until 
it  shall,  at  a  general  election,  have  been  submitted  to  the 
people  and  have  received  a  majority  of  all  the  votes  cast 
lor  or  against  it  at  such  election.  On  the  final  passage  of 
such  a  bill  in  either  House  ot  the  Legislature,  the  question 
shall  be  taken  by  ayes  and  noes,  to  be  duly  entered  on  the 
journals  thereof,  and  shall  be:  "  Shall  this  bill  pass,  and 
ought  the  same  to  receive  the  sanction  of  the  people?" — 
The  Legislature  may  at  any  time  after  the  approvnl  of 
such  law  by  the  people,  if  no  debt  shall  have  been  con- 
tracted or  liability  incurred  in  pursuance  thereof,  repeal 
the  law;  and  may  at  any  time  by  law  forbid  the  contract- 
ing of  any  further  debt  or  liability  under  such  Inw;  but  the 
tax  imposed  by  such  act,  in  proportion  to  the  deb',  and  lia- 
bility which  may  have  l>een  contracted  in  pursuance  of 
such  law  shall  remain  in  force  and  be  inepealable,  and  be 
annually  collected  until  the  proceeds  thereof  shall  have 
made  the  provision  hereintofot  e  specified  to  pay  and  dis- 
charge the  interest  and  principal  of  such  debt  and  liability. 

The  money  arising  from  any  loan  or  stock  creating  debt 
or  liability  shall  be  applied  to  the  work  or  object  specified 
in  the  act  authorizing  such  debt  or  liabilii)  ,  »r  for  the  re- 
payment of  such  debt  or  liability,  and  lor  no  other  pur. 
pose  whatever. 

No  such  law  shall  be  submitted  to  be  acted  on  within 
three  months  after  its  passage  or  at  any  general  election, 
when  any  other  law  or  any  bill  or  any  amendment  of  the 
Constitution,  shall  be  submitted  to  be  voted  for  or  against. 

(5  6.  Every  law  which  imposes,  continues,  or  revives  a 
tax  shall  distinctly  state  the  tax  and  the  objtctto  which  it 
is  to  be  applied,  and  it  shall  not  be  sufficient  to  refer  to 
any  other  law  to  fix  such  tax  or  object. 

§  7.  On  the  final  passage,  in  either  House  of  the  Legisla- 
ture, of  every  act  which  imposes,  continues  or  revives  a 
tax,  or  makes,  continues,  or  revives  any  appropriation  of 
public  or  trust  money  or  property— or  releases,  discharges 
or  commutes  any  debt  or  demand  of  the  State,  the  ques- 
tion shall  betaken  by  ayes  and  noes,  which  shall  be  duly 
entered  on  the  journals^  and  three-fifths  of  all  the  members 


463 


elected  to  either  House  shall,  in  all  such  cases,  be  neces- 
sary to  constitute  a  quorum  therein. 

By  order  of  the  committee, 

MICHAEL  HOFFMAN,  Chairman. 

Mr.  HOFFMAN  said  that  upon  this  article  the 
committee  were  in  the  main,  he  believed,  unani- 
mous. In  regard  to  the  first  clause,  relative  to 
specific  appropriations,  and  the  means  of  enforc- 
ing the  same,  he  believed  there  was  no  dissent. — 
On  the  clause  limiting  casual  debts  to  a  million  of 
dollars,  some  gentlemen  supposed  that  perhaps  at 
some  future  time  it  might  be  necessary  in  a  great 
State  like  this,  containing  some  three  to  six  mil- 
lions of  inhabitants,  to  enlarge  the  amount  a  small 
extent.  On  the  proposition  which  authorizes  the 
creation  of  a  debt  for  particular  purposes  by  a  spe- 
cial law,  he  was  not  aware  that  there  was  any  seri- 
ous difference  of  opinion.  Some  gentlemen  might 
think  the  same  end  might  be  attained  by  other 
means  than  by  submitting  it  to  the  people;  and 
some  supposed  that  a  provision  making  the  debt 
payable  in  18  years  was  not  sufficiently  stringent; 
but  with  some  doubts  and  difficulties  on  the  points 
he  had  mentioned,  he  believed  the  committee  was 
unanimous  in  the  opinion  that  the  industry  and 
labor  of  the  State  should  be  defended  as  strongly 
as  was  now  proposed  against  debt ;  at  least  against 
extravagant  expenditures  and  taxation  the  inevi- 
table consequences  of  debt.  With  these  explana- 
tions, he  moved  that  the  report  be  referred  to  the 
same  committee  of  the  whole,  as  the  other  had 
been  sent  to,  and  that  it  be  printed.  Agreed  to. 

MUNICIPAL  CORPORATIONS. 
Mr.  MURPHY,  from  committee  No.  14,  sub- 
mitted the  following  report : 

ARTICLE . 

^  1.  Private  property  shall  not  be  taken  for  improvement 
in  cities  and  villages,  unless  the  compensation  therefor 
shall  be  first  determined  before  a  judicial  tribunal  by  a 
jury  of  twelve  freeholders  of  the  city  or  village  w'here 
the  same  shall  be  situated,  who  shall  ue  chosen  and  quali- 
fied us  jurors  in  civil  cases. 

fj  -.>.  No  local  assesmeut  for  any  improvement  in  any  ci- 
ty or  village  shall  be  laid  unless  a  majority  of  all  the  own- 
ers of  the  lands  to  be  assessed  shall  apply  lor  such  im- 
provement, nor  unless  such  improvement  s'hall  be  order- 
ed by  a  vote  of  two-thirds  of  the  Common  Council  or 

^£t^S!&K?Syi*  or  vmage  co,  |  to  Vne  0,"  "*•  S'f  |e  SeMte  district  P'^-ono 
poration,  excep;  to   suppress   insurrection  or  to  provide  I  on  the  ^Ulgle  Assembly  districts,   and    one  on  the 
against  existing  pestilence  or  casualty,  unless  the  same    apportionment  by  the  ]3oard  of  Supervisors, 
shall  be  authorized  by  act  of  ihe  legislature  lor  >ome  sin-         Mr.    STRONG  ihnntrht  thi«  wmilH  Ko  ,,™ 


ARTU  LE  -  . 

§  1.  No  charter  or  special  act  for  the  incorporation  of  nny 
city  or  village  shall  be  granted,  but  general  and  unilorn 
laws  shall  be  passed  lor  the  incorporation  ot  cities  and  lik« 
laws  for  the  incorporation  of  villages,  subji-ct  to  such  a- 
terati.ms  as  the  Legislavure  shall  irom  time  to  time  dfen 
propi  r  to  make.  The  boundaries  and  limits  of  the  territory 
included  within  any  city  or  village  corporation,  shall  le 
determined  in  such  manner  as  the  Legislature  shall  pia. 
scribe. 

§  2.  No  assessment  for  any  improvement  in  any  city  or 
village  shall  be  laid  otherwise  than  by  general  tax  uion 
the  taxable  property  of  such  city  or  village,  levied  ind 
collected  with  an  annual  t;ix  for  other  expenses. 

§  3.  Private  property  shall  not  be  taken  for  any  improve- 
ment in  any  city  or  village  other  than  lor  State  purpcses, 
unless  the  compensation  shall  be  first  fixed  by  a  jury  in  a 
court  proceeding:  according  to  the  course  ol  the  coirmoii 
law. 

§  4.  No  debt  shall  be  contracted  by  any  city  or  village  on 
a  longer  credit  than  twenty  years,  nor  unless  there  shall  be 
levied  and  collected  in  its  annual  tax  of  the  preceding 
year,  one-twentieth  part  of  such  debt  towards  the  -epay- 
ment  of  the  same,  unless  such  debt  be  necessary  to  provide 
against  pestilence  or  casualty.  After  the  creation  of  any 
debt  there  shall  be  levied  and  collected  in  said  annual 
tax  annually  thereafter,  one  twentieth  part  or  as  near  one 
twentieth  part  as  may  be  of  such  debt,  towards  its  repay- 
ment. 

§  5.  Money  shall  not  be  borrowed  by  any  city  or  village 
corporation  in  anticipation  of  its  annual  tax,  except  for  the 
pui  pose  of  paying  interest  about  to  become  due  on  any 
debt  now  existing,  or  to  be  created  under  the  limitation  of 
this  article,  nor  unless  the  amount  shall  have  bten  previ- 
ously levied  in  such  annual  tax. 

§  6.  No  liability  shall  be  contracted  by  any  city  or  vil- 
lage corporation  unless  provisions  have  previously  been 
made  in  its  annual  tax  for  discharging  th  same,  or  unless 
the  same  be  incurred  under  the  limitations  of  tn'is  article 

H.  C  MURPHY. 

Mr.  MURPHY  moved  that  these  two  reports 
be  referred  to  the  committee  of  the  whole,  and 
that  they  be  printed.  Agreed  to. 

APPORTIONMENT  OF  THE  LEGISLATURE. 
The  Convention  then  proceeded  to  act  upon  the 
report  of  the   committee  of  the  whole  on  the  ap- 


portionment of  the  legislature. 

The  1st  section  was  agreed  to. 

Mr.  KIRKLAND  wished  the  house  to  proceed 
to  dispose  of  the  various  pending  motions  to  re- 
consider the  votes  taken  in  committee  on  the  se- 
veral sections  of  this  report  of  committee  No.  1. 
There  was  one  motion  relative  to  the  term  of  Se'na- 


gl 
la 


le  object  or  woi  k  to  be  distinctly  specified  therein,  which 
w  shall  provide  the  ways  ai:d  means  exclusive  of  loans 
to  pay  the  interest  of  such  debt  as  it  shall  fall  due,  and  al- 
so to  pay  and  discharge  the  principal  thereon  within  '20 
yours  by  tax  to  be  assessed  and  collected  upon  the  taxable 
property  of  such  city  or  village  in  equal  aniount>  as  near 
as  may  be  annually,  and  such  law  shall  be  irrepealable  un- 
til such  debt  and  the  interest  thereon  shall  be  fully  paid 
and  discharged.  And  no  such  l.iw  sliall  take  effect  until 
it  shall  have  been  approved  by  a  majority  of  the  electors 
of  such  city  or  vil  age;  and  no  money  so  raised  snail  be 
applied  otherwise  than  to  the  object  specified  in  such  law. 
By  oider  of  the  (.'omnut-.ee. 

HENRY  C.  MURPHY,  Ch'n. 

Mr.  MURPHY  suid  the  committee  were  unani- 
mous i'i  rt'gard  to  ihe  1st  section,  but  not  ss  to  the 
re-  1.  Difftring  hiri/self  from  the  committee,  arid 
belii'Vinii  that  ihe  provisions  which  ihey  had  sub- 
nutted  did  ti'»t  fr»  to  the  iont  of  the  evils  growing 
out  ot  'he  defec  s  of  our  present  system  of  rrmrii- 
cii'.il  corpoianons,  he  hr.d  prepared  a  minority 
report  which  he  would  now  ask  leave  to  submit. 
This  minority  report  was  as  follows: 


Mr.  STRONG  thought  this  would  be  unneces- 
sary, because  if  the  Convention  passed  the  report  •• 
of  committee  No.  1,  without  considering  those 
motions,  they  fell  to  the  ground  as  a  matter  of 
course— that  would  dispose  of  the  whole  matter. 
HeAsked  the  Chair  for  information? 

TWe  CHAIR  said  that  they  would. 

Mr.  KIRKLAND  agreed  with  the  gentleman 
from  Monroe  ;  but  he  had  made  his  motion  for  the 
sake  of  example. 

Mr.  STRONG  then  moved  that  the  convention 
proceed  to  the  unfinished  business. 

This  was  carried,  and  the  report  was  taken  up 
by  sections. 

Section  1  was  passed,  and  section  2  was  then 
read. 

Mr.  MARVIN  moved  to  amend,  by  adding  at 
the  end  of  the  section  the  words  following: 

"  The  Legislature  may,  after  the  enumeration  to  be 
made  in  the  year  IS.;.},  increase  the  number  ol  Senators  to 
any  number  not  exceeding  fifty,  and  the  number  of  Mem- 
bers of  Assembly  not  exceeding  150." 


464 


Mr.  W.  H.  SPENCER  called  for  the  division 
of  this  question,  so  as  to  take  the  vote  first  on  in- 
creasing the  number  of  Senators. 

Mr.  KENNEDY  suggested  the  propriety  of  al- 
tering the  word  "  increase"  to  "  change,"  for  the 
fegislature  might  hereafter  deem  it  necessary  to 
iteduce  the  number  of  Senators. 

Mr.  MARVIN  said  his  object  was  to  give  the 
legislature  the  power  after  the  next  enumeration  in 
1855,  to  increase  the  number  if  they  thought  pro- 
per to  do  so.  The  legislature  in  1855,  may  find 
it  /ery  desirable  to  increase  the  number  of  Sena- 
tors to  34,  36,  40,  42,  or  any  number  even  up  to 
50.  And  his  object  was  to  give  them  this  power. 

Mr.  TALLMADGE  said  the  object  was  a  very 
honorable  one.  But  if  it  was  desirable  ever  to 
increase  them,  it  could  be  done  by  amendments 
to  the  constitution  hereafter.  He  would  not 
leave  this  bone  of  contention  to  political  aspi- 
ranta  It  might  render  an  extra  session  necessa- 
ry and  cause  several  thousands  of  dollars  to  be 
spent  by  putting  this  hypothetical  provision  in 
the  constitution,  to  encourage  strife  among  brawl- 
ing political  aspirants.  He  wished  to  Heaven 
that  gentlemen  would  allow  the  convention  to 
stay  fixed  somewhere,  and  also  the  constitu- 
tion. 

Mr.  MARVIN  then  modified  his  amendment, 
go  as  to  provide  that — 

"The  legislature  alter  the  next  state  enumeration  may 
increase  Uie  number  ot  senators  to  any  number  riot  ex- 
ceeding LQ,  and  members  ut  assembly  to  any  number  not 
exceeding  J50  ;  and  may  after  every  state  enumeration  fix 
the  number  ot  senators  at  any  number  between  32  and  60 
inclusive,  and  the  membe  s  ol  assembly  at  any  number 
between  128  wnd  150  inclusive." 

The  question  was  then  taken,  first  on  increas- 
ing the  uuinbtrot  Senators.  Losf,  ayes  35,  noes  70. 

AYES— Messrs.  Angel,  H.  Backus,  Bascom,  Bull,  Burr, 
Chattield,  Coneiy,  Cornell,  Crocker,  Dorlon,  Dubois,  Gard- 
ner, Gebhar.1,  Hart,  Jones,  Kemble,  Kennedy,  Loomis, 
Marvin,  Neliis,  O'Conor,  Patterson,  Porter,  Powers,  Presi- 
dent, Richmond,  Salisbury,  Shepard  W.  H.  Spencer,  Ste- 
phens, Swackhamer,  Tatt,  Taggart,  Tildrn,  Young— 35. 

NAYS — Mesirs.  Ayrault,  F.  F  Backus,  Bergen,  Bouck, 
Bowdisli,  Brayton  Brown,  Bruce,  Brundage,  (  ambreieng, 
D.  D.  Campbell,  Candee,  Clark,  Clyde,  Cook,  Cuddeback, 
Dana,  Danlarih,  Dodd,  Flanders,  Korsyth,  Harrison,  Haw- 
ley,  Hotchkiss,  Hunt,  Hunter,  A.  Huuungton,  E.  Hunting 
ton,  Hutchinson,  Hyde,  Jordan,  Keinan,  Kingsley,  Kirk 
land,  McNeil,  McNitt,  Maxwell,  Millet ,  Moms,  Murphy, 
Nicholas  Nicoll,  Parish,  Penmman,  Perkins,  Rnoades, 
Hiker,  Iluggles,  St  John,  Se^irs,  Shaw  Sheldon,  Smith,  E. 
Spt-ncer,  stanton,  Stetson,  Strong,  Tallmadge.  J.  J.  Taylor, 
W.  Taylor,  Townsend,  Tuthiil,  Van  Schoonhoven,  \Vater- 
hury,  Wiil*rd,  WLbeek,  Wood,  W.  B.  Wright,  Yawger, 
Youngs — 70. 

The  question  then  vet  urred  on  the  other  divis- 
ion—  to  provide  for  the  prospective  increase  f  (he 
number  of  members  <-f  Assembly  to  150. 

Mr.  MARVIN  said  he  supposed  the  vote  just 
taken  st-t'led  the  question;  he  therefore  wt  uld  not 
trouble  the  Convention  to  take  the  yeas  and  nays. 

Mr.  TALLMADGE  renewed  the  demand  for 
the  veas  and  nays.  Lost,  ayes  22,  noes  87. 

Mr.  MURPHY  moved  to  strike  out  Richmond 
from  the  second  distiict. 

The  PRESIDENT  :     Not  in  order. 

Mr.  W.  B.  WRIGHT  moved  to  restore  the  words 
"  and  the  Senators,"  for  which  the  word  "  who" 
had  been  substituted.  The  amendment,  which 
was  verbal  merely,  was  adopted,  42  to  37. 

The  section  was  then  agreed  to. 

The  5th  section  was  then  taken  up  and  read. 


Mr.  W.  TAYLOR  moved  to  restore  the  section, 
so  that  it  would  provide  for  the  election  of  Sena- 
tors in  alternate  districts  in  alternate  years,  as 
the  committee  had  first  reported  it. 

Mr.  KENNEDY  said  that  if  this  was  done, 
they  would  come  back  to  the  ride  and  tie  system. 

Mr.  W.  TAYLOR  advocated  this  He  said  ob- 
jections had  been  made  on  account  of  its  opening 
the  door  to  fraud  by  colonization ;  but  all  this  could 
be  avoided. 

Mr.  STETSON  said  he  would  like  to  hear  some 
good  reasons  from  his  friend  from  Onondaga  (Mr. 
TAYLOR)  in  support  of  his  motion,  for  he  always 
took  pleasure  in  following  the  lead  of  that  gentle- 
man when  he  could  ;  but  under  his  present  views 
he  must  oppose  the  motion.     The  gentleman  from 
Onondaga  (Mr.  TAYLOR)  proposes,  by  his  motion 
to  restore  I  he  ride  and  iie  system  of  electing  Sena- 
tors, reported    by  his  committee     Now  it   would 
be    remembered    that  only  a  few  days  ago,    when 
that    part  of  the  report  was  under   consideration, 
he,  Mr.  S  ,  offered  an  amendment  providing   that 
all  the  electors  ot  the  State  should  be  allowed  to 
vote    at    every    plection  of    Senators.      On    that 
amendment  the  yeas  and  nays  were  called,  and    it 
received    precisely  one  hundred  ayes,  the  strong- 
est vote  that  has  been  taken  in  this  Convention. 
The  adoption  of  that    amendment   abolished   the 
ride  and  tie  mode  of  electing  Senators,  which  the 
gentleman  from  Onor,dnga  (Mr.  T.)  now  proposed 
to  restore.     He  (Mr  T.)  had  assigned  as  a  reason 
lor   restoring    it,    that  without   that   the   Senate 
would  no  loi;ger  be  a  continuous  body ;  and  that 
the    objection    that   would    lead  to    colonization 
would  be  iully  met  by  stringent  provisions  against 
voting  without  a  long  previous  residence  in  elec- 
tion districts.     As  to  the  continuity  of  the   body, 
he,  Mr.  S.  admitted  its  lorce,  when  it  was   based 
upon  a  representation  of  the  whole  body  of  elec- 
tors; but  lhat  was  not  the  gentleman's  proposition, 
for  by  his  system,  we  would  never  hear  trom  the 
whole  people  at  lh«  same  time,  but  only  from  one- 
half  of  them.   The  continuity  then  would  be  gained 
by  the  disfranchisement  ot  one  half  the  electors  on 
all  questions   which  had  arisen    within    the   year 
The  principle  on  which  his  continuity  was  based 
was  wrong,  and  therefore   the  system  would  fail 
in  securing  the  object  the  gentleman  had  in  view 
that  of  stability  founded  on  a  previously  express- 
ed will  of  the  whole  people  ;  for  we  could  not  ar- 
rive at  a  knowledge  of  that  will  on  any  question 
except  so  far  as  one-half  of  the  electors  on  one 
question,   this  year,  might  be  supposed  to  agree 
with  another  half  on  another  question  the  next ' 
year.     The   gentleman    (Mr.   W.   TAYLOR)  had 
dwelt  on   guards   against  colonization,  as  a  re- 
moval of  all  objections  to  the  ride  and  tie  system, 
but  those  very  guards  so  far  as  they  contemplated 
a  long  residence  in  an  election  district  to  give  one 
the  right  to   vote,  constituted  a  formidable  objec- 
tion ;  for  while  he  desired  to  prevent  colonization, 
he  was   at  the  same  time  opposed  to  the  disfran- 
chisement of  honest  laborers,   who  to   obtain  a 
livelihood  were  often  compelled  to  change  their 
residence  from  one  election  district  to  another,  in 
the  same  town,  or  from   town  to  town,  especially 
in  the  season  of  haying  and  harvest.     But  in  New 
York,  the  most  stringent  provisions  any  one  would 
propose  would  not  pevent  colonization  under  the 
gentleman's  plan.     Young  men  without  families 


465 


would  only  have  to  change  their  boarding  houses 
from  one  side  of  a  street  to  another,  sixty, 
ninety,  or  one  hundred  days  before  an  election. 
But  there  was  another  objection  besides  these, 
and  still  more  formidable,  to  which  the  gentle- 
man (Mr.  T.)  had  not  alluded  ;  he  meant  the  ap- 
plication of  corrupting  influences  to  resident, 
doubtful  voters  within  a  district.  Under  the  ride 
and  tie  plan,  the  number  of  Senators  to  be  se- 
cured by  a  party  to  gain  or  hold  power,  would  be 
easily  known  ;  and  which,  too,  in  even  the  uncer- 
tain districts.  These  generally  would  be  very 
lew,  and  to  incorporate  this  ride  and  tie  system 
in  the  constitution,  would  be  to  bring  all  the  po- 
litical gambling  influences  of  the  State  to  bear  on 
those  districts.  There  was  much  security  against 
fraud  and  corruption  at  elections  in  an  ignorance  of 
the  precise  points  where,  or  the  particular  men 
by  whose  votes  the  election  was  to  be  lost  or 
gained.  He  hoped  the  Convention  would  not 
reconsider  its  vote  and  adopt  the  ride  and  tie 
system. 

Mr.  LQOMIS  would  not  support  the  motion  of 
Mr.  TAYLOR,  because  he  would  rather  have  Sen- 
ators elected  for  two  years,  and  all  go  out  at  once, 
to  this  chequered  system  which  the  committee 
had  proposed,  although  he  desired  to  avoid  even 
the  first  conclusion.  By  the  committee's  plan, 
half  the  state  was  every  year  to  be  disfranchised, 
and  yet  they  had  to  go  through  the  whole  form 
and  expense  of  the  election  every  year.  That 
proposition  too  would  afford  facilities  for  coloni- 
zation and  corruption.  He  also  called  the  atten- 
tion of  the  Convention  to  the  fact  that,  by  the 
committee's  pi;jn,  the  elections  for  the  cities 
were  brought  together'  in  one  year,  and  the  elec 
tions  for  the  country  in  the  other  year.  He  point- 
ed out  how  the  Senate  might  be  influenced  by  an 
excitement  got  up  in  the  cities,  which  were  more 
exposed  to  excitements  than  the  rural  districts, 
and  hoped  the  Convention  would  adhere  to  the 
vote  already  given  on  this  subject. 

Mr.  PERKINS  was  opposed  to  having  any  ol 
these  motions  to  reconsider,  made  or  entertained 
where  there  had  been  a  very  decided  vote  given 
in  favor  of  a  provision — or  any  when  unless  the 
question  .was  decided  by  a  small  vote,  or  a  very 
close  vote. 

Mr.  TAYLOR  insisted  that  his  plan  was  th 
best. 

The  yeas  and  nays  were  then  taken  on  the 
amendment  and  resulted  yeas  21,  nays  86 — as  fol 
lows  : — 

.AYES—  Messrs.  Conely,  Dorlon, Dubois,  E.  Huntington 
Jordan,  Kembla,  Kingsley,  Kirkland,  Marvin,  Nicholas 
O'Conor,  Rhoades,  Haggles,  E.  Speucer,  Stephens,  T  aft 
Tallmadge.J.  J.  Taylor.  W.  Taylor.  Vache,  Young— 21 
NAYS—  Messrs  Ayrault,  F.  K.  Backus,  H.  Backus,  Bus 
com,  Bergen,  Bouck,  Bo wdish,  Bra>  ton,  Brown,  Bruce 
BrumJage,  Bull,  Burr,  Cambieieng.  D.  D.  Campbell,  Car 
dee,  Chamberlain,  ChatfidLl,  Clark,  Clyde,  Cook,  Cornell 
Crooker,  Cuddeback.  Dana,  Danfgrth,  Flandeis,  Forsyth 
Gardner,  Gebhard,  Harris,  Harrison,  Hart,  Hawley,  Hotch 
kiss,  Hunt,  Hunter,  A.  Huntington,  Hutchinson,  Hyde 
Jones,  Kennedy,  Kernan,  Looinis,  McNeil.  McNitt,  Max 
well,  Miller,  Morris,  Murphy,  Nellis,  Nicoll,  Parish,  Pa 
terson,  Penniman,  Perkins,  Porter,  Powers,  President, Rich 
mond,  Riker,  Sail-bury,  Sears,  Shaw,  Sheldon,  Shepare 
Smith,  W.  H  Spencer,  Stunlon,  Stetson,  Stow,  Strong 
Taggart,  Townsend,  Tuthill,  Van  Schoonhoven,  Warren 
Waterbury,  White,  Willard,  Witbeck,  Wood,  Worden 
W.  B.  Wright,  Yawger,  Youngs — 86. 

Mr.  WHITE  then  moved  to  strike  out  all  dow 
to  and  including  the  12th  line,  and  insert : — 

33 


The  state  shall  be  divided  into  16  districts  to  be  called 
cnate  Districts,  each  of  which  shall  choose  two  Senators, 
ml  the  Senators  first  elected  shall  be  divided  into  two 
lasses;  the  Senators  of  the  first  class  shall  serve  one 
ear,  and  the  Senators  of  the  second  class  two  years,  and 
6  senators  shall  be  elected  annually  thereafter" 

Mr.  STETSON  said  ho  would  detain  the  Con- 
ention  only  one  minute  to  explain  why  he  should 
ote  against  this  amendment.  Some  days  since 
e  had  voted  for  this  proposition ;  but  that  vote 
vas  given  under  the  hope  that,  if  it  prevailed, 
ne  Convention  would  reconsider  their  previous 
ecision  as  to  the  number  of  Senators  and  enlarge 
t  so  that  by  doubling  the  districts  we  would  have 
n  the  territory  and  population  of  a  double  district 
bout  the  same  quantity  that  would  be  assigned 
o  a  single  district,  with  thirty-two  for  the  whole 
lumber  of  the  Senate.  His  motion  had  been  to 
ecure  contiguity,  stability  and  more  experience 
n  the  Senate,  and  also  an  equalization  of  repre- 
entation.  That  hope  was  now  gone,  the  com- 
mittee had  refused  to  reconsider  and  this  was  the 
ast  vote.  He  could  notconsent  to  make  the  dis- 
ricts  so  large  as  they  would  be,  if  doubled  upon 
he  smaller  number  of  thirty-two. 

Mr.   WHITE'S  motion  was  lost,  thus:— ayes 
20,  noes  87. 

AYES— Bergen,    Brown,  Brundage,    Conely,  Cornell 
Hunt,  Jones,  Kemble.  Kennedy.  Loomis,  Murphy,  Nicoll* 
O'Conor,  I'erkins,   Ruggles,    Shepard,    Smith,  Steohei 
Vache,  White— 20. 

NAYS— Ayrault,  F.  F.  Backus,  H.  Backus,  BascoM 
Bouck,  Bowdish,  Bray  ton,  Bruce,  Bull,  Burr,  Cambrelene' 
D.D.  Campbell,  R.  Campbell  jr.,  Candee,  Chamberlain 
Chatfield,  Clyde,  Cook,  Crooker,  Cuddeback,  Dana  Dan' 
orlh,  Dorlon,  Dubois,  Flanders,  Forsyth,  Gardner  Geb- 
hard, Harris,  Harrison,  Hart,  Hawley,  Hotchkiss  Hunter 
A.  Huntington,  E.  Huntington,  Hutchinson,  Hyde,  Jordan' 
Kernan.  Kingsley,  Kiikiand,  McNeil,  McNitt  Marvin* 
Maxwell.  Miller.  Morris,  N*iJis,  Nicholas,  Parish  Patter' 
son,  Penniman,  Porter.  Powers,  President,  Rhoades  Rich- 
mond, Riker,  St.  John,  Salisbury,  Sears,  Shaw  Sheldon 
E.  Spencer,  W.  H.  Spencer,  Stanton,  Stetson,  Strone' 
Swackhamer,  Taft.  Taggart,  Tallmadge,  J.  J.  Taylor  W 
Taylor,  Townsend,  Tuthill,  Vanschoonhoven  Warren' 
Waterbury,  Wiilard,  Witbeck,  Wood,  W.  B'  Wrieht 
Yawger,  Young,  Youngs— 87. 


Mr.  MURPHY  moved  to  detach  Richmond 
county  from  Kings  and  place  her- with  Queens  and 
Suffolk.  Carried — ayes  53,  noes  51. 

AYES— Messrs.  Bascom,  Bergen,  Bouck,  Bowdish  Brav- 
r°un'  ?*£"?'  Byun?aS?'  B.  Campbell,  jr.,  Chamberlain, 
Chatheld,  Conely,  Cook,  Cornell  Cuddeback,  Danforth 
Dodd,  Flanders,  Gardner,  Hart,  Hunt,  Hunter  E  Huntimr* 
ton,  Hutchinson,  Hyde,  Kennedy,  Kernan,  Kirkland,  Mc- 
Neil, Maxwell,  Murphy,  Nellis,  Nicoll,  O'Conor  Perkins 
Porter.  President,  Ruggles,  St.  John,  Shaw,  Sheldon  She- 
pard, Smith,  Stephens,  Stetson,  Swackhamer  Talt  Town- 
send.Vache,  Waterbury.White.Wood, Yawger,  Youns— 53 

NOES-Messrs.  Ayrault,  F.F.  Backus,  H.  Backus  Bruce 
Bull,  Burr,  Cambreleng,  D.  D.  Campbell,  Clark,  Crooker' 
Dana,  Dorlon,  Dubois,  Forsyth,  Gebhard,  Harris  Harri- 
son, Hawley,  Hotckhiss.  A.  Huntington,  Jordan,  Kemble 
Kingsley,  Loomis,  McNitt,  Marvin,  Miller,  Morris  Nicho- 
las, Parish.  Patterson,  Penniman,  1'owers,  Rhoade--  Rich- 
mond, Riker,  Salisbury,  Sears,  E.  Spencer  W.H  Spen- 
cer, Stanton,  Stow,  Strong,  Taggart,  Tallmadge,  J.  J  Tav- 
lor,  Tuthill,  Van  Schoonhoven,  Warren,  \V.  B.  Wliriff 
Youngs-51. 

Mr.  KENNEDY  moved  to  amend  by  striking 
out  the  word  "  district"  in  the  16th  line,  to  the 
word  "  wards"  in  the  23d  line ;  and  insert  as  fol- 
lows : 

"  Districts  No.  3,  No.  4,  No.  5  and  No.  6,  shall  consist  of 
the  «ity  and  county  of  New  York.  And  the  board  of  su- 
pervisors ol  said  city  and  county  shall  on  or|b.>fore  the  1st 
day  of  May.  1847,  divide  the  city  and  county  into  the  num- 
ber  ot  Senate  districts  to  which  it  is  entitled  as  near  as 
may  be  of  an  equal  number  of  inhabitants,  and  of  contie-- 
uous  territory." 


466 


Mr.  PATTERSON   said  this  was  adopting  a 
new  principle,  to  go  on  and  divide   up  the  State 
and  then  say  that  the  board  of  supervisors  shall 
divide  the  city  of  New-York  into  four  districts. 
We  had  better  go  on  and  finish  up  this  business. 
Something  had  been  said  about  political  divisions, 
>ut  that  he   had  disregarded.     It  was  sufficient 
for  him  to  know  that  the  districts  were  compact, 
without  looking  to  the  returns  which  those  dis- 
.ricts  had  given.     He  thought  the  districts  formed 
>y  the  committee,  were  fair,  and  there  was  agen- 
leman  from  New-York  on  the  committee  to  whom 
hey  were  satisfactory. 
Mr.  W.  TAYLOR  preferred  that  the  Conven- 
ion  should  go  on  and  perfect  the  districts  as  they 
lad  begun,  instead  of  leaving  it  to   the  board  of 
upervisors  in  New-York  to  district  that  city. 
Mr.  O'CONOR  urged  the  adoption   of  this   a- 
nendment,  on  the  ground  that  it  was  but  carry  - 
ng  out  the  principle  which  had  been  adopted  in 
elation  to  the  formation  of  Assembly  districts.  — 
"hese  were  turned  over  to  the  county   Boards  of 
>upervisors.     New   York    city  embracing  as  it 
id.  four  Senate  districts,  the  Board  of  Sunervi- 

and  the  population  thereof,   to  be  filed  in  the  of- 
fice of  the  Secretary  of  State  and  the  clerk  of  the 
said  county. 
This   was  accepted  by  Mr  KENNEDY,  and  his 
amendment  as  amended  adopted. 
The  other  districts  were  then  taken  up  in  suc- 
cession, and  they  were  agreed  to  without  debate 
or  amendment,  from  the  '7th  to  the    16th,  inclu- 
sive. 
Mr.  SMITH  moved  to  strike  the  word  "  Scho- 
harie"  from  the  42nd  line,   and  insert  "  Chenan- 
go,"   so  as   to  make  the  17th   district  consist  of 
Chenango  and   Otsego.     He  also  moved  to  strike 
the  word   "  Chenango"  from  the  47th  line,  and 
insert  "  Schoharie,"  so  as  to  make  Delaware  and 
Schoharie  the  18th  district. 
Mr.  BOUCK  opposed  the  amendment,  contend- 
ing that  the  result  would  be  to  make  a  still  great- 
er inequality  than  now  existed  between  the   dis- 
tricts, while  it  would  not  at  all  add  to  the  conve- 
nience of  the  people.     He   should  look   to  have 
some  reason  for  the  change. 
Mr.  SMITH  said  this  amendment  was   concur- 
red in  by  the  members  from  Chenanp-n  and   Ot«o. 

sors  could  as  well  average  those  as  the  Assembly  I  go,  and  would  be  desired  unanimously  almost  by 
districts.     All  that  they  had  to  do  was  to  divide  a   the  people  ot  the   two   counties.     Chenango  and 


single  county  into  three  or  four  legislative  dis- 
tricts, just  as  they  were  empowered  for  another 
purpose,  to  divide  the  same  county  into  sixteen 
legislative  districts 

Mr.  NICOLL  said  that  the  city  Convention, 
now  sitting  in  New  York  would  in  all  probabili- 
ty re-arrange  the  wards,  and  therefore  if  this 
Convention  was  to  proceed  to  district  the  city 
now  it  would  inevitably  lead  to  contusion.  There 
were  great  inequalities  in  the  wards  now,  which 
that  Convention  was  to  arrange,  and  it  was  but 
simple  justice  therefore,  that  the  amendment 
should  be  adopted. 

Mr.  STRONG  said  the  real  question  was  wheth- 
er this  Convention  should  proceed  with  its  busi- 
ness or  whether  it  should  wait  for  the  city  of 
New  York.  If  the  rest  of  the  State  was  to  be  dis- 
tricted by  this  Convention,  so  ought  New  York, 
and  not  be  left  to  be  gerrymandered  by  the  Board 
of  Supervisors.  He  should  vote  against  the  amend- 
ment. 

Mr.  SWACKHAMER  briefly  sustained  the  a- 
mendment,  as  but  an  act  of  justice  to  the  city. 

Mr.  PATTERSON  desired  to  guard  against  any 
thing  like  gerymandering,  and  would  therefore 
ofler  an  amendment:  add  the  words"  of  compact" 
after  the  word  "  inhabitants,"  so  as  to  make  the 
districts  of  "  compact  and  contiguous  territory." 

Mr.  KENNDEY  had  no  objection. 

Mr.  W.  TAYLOR  suggested  that  this  matter 
could  be  passed  over  until  the  Convention  in 
New  York  had  completed  their  arrangement  of 
the  wards. 

Mr.  STRONG  said  they  had  adjourned  for  a 
month  he  believed. 

Mr.  NICOLL  said  that  could  not  be  done.  The 
result  of  the  labors  of  the  city  convention  was 
first  to  be  passed  upon  by  the  people  and  after- 
wards ratified  by  the  legislature. 

After  some  further  conversation,  Mr.  SHEP- 
ARD  offered  an  amendment,  to  require  the  board 
of  supervisors,  when  they  shall  have  completed 
such  division,  to  cause  a  certificate  thereof,  stat- 
ing the  number  and  boundaries  of  the  districts 


Chenango  and 

Otsego  had  been  long  allied  by  a  social  and  com- 
mercial intercourse,  and  their  interest  were  al- 
most identical,  while  with  Delaware,  Chenango 
had  no  intercourse  at  all,  and  indeed  the  people 
of  that  county  were  obliged  to  pass  through  Otse- 
go in  order  to  get  at  Delaware. 

Mr.  BURR  suggested  that  Delaware  should  be 
erected  into  a  single  district,  since  there  seemed 
to  be  so  much  reluctance  to  be  attached  to  her. — 
She  could  take  care  of  herself  in  any  position. 

Mr.  HARRIS  should  support  the  amendment  of 
the  gentleman  from  Chenango,  in  the  hope  that 
if  it  should  prevail,  another  amendment  would  be 
adopted  which  would  relieve  Albany  of  the  weight 
of  Schenectady.  He  should  move  to  take  Sche- 
nectady  away  from  Albany,  and  add  her  to  Dela- 
ware and  Schoharie,  which  would  make  a  fair 
district. 

Mr.  WATERS URY  opposed  the  amendment- 
insisting  that  there  was  full  as  much  intercourse 
between  Delaware  and  Chenango,  as  between  De- 
laware and  Schoharie. 

Mr.  KIRKLAND  briefly  supported  the  amend- 
ment. 

Mr.  BOUCK  renewed  his  opposition  to  the  mo. 
tion,  and  insisted  that  ttiere  was  quite  ;is  much 
intercourse  between  Delaware  and  Chenango  as 
between  Delaware  and  Otsego.  It  rnnsl  be  some 
other  motive  thdn  the  convenience  of  the  people 
which  could  induce  the  change. 

Ivlr.  CHATFIELD  suppoited  the  amendment. 

Mr.  PATTERSON  opposed  it.  as  did  Mr 
RHOADKS. 

Alter  some  further  conversation,  the  question 
being  taken,  the  amendment  was  i ejected,  ayes 43, 
nays  47 — as  follows: — 

AYES— Angel,  Brown,  Chatfield,  Clark,  Cook,  Cornell, 
Dubois,  Flanders,  Forsyth,  Gebhard,  Harris,  Hunt,  Hunter' 
Hjde,  Kennedy,  Kirkland,  Maxwell,  Morris,  NicoJJ,  O'-' 
Conor,  Perkins,  Porter,  Powers,  President,  Richmond,  Hik- 
er, St.  John,  Shaw,  Sheldon,  Shepaid,  Smith,  Stephens 
Stetson,  Stow,  Swackhamer,  Tait,  1  aggart,  Tallmadee' 
T  J.  Taylor,  Vache,  White,  Willard,  Youngs— 43. 

NOES— Messrs.  Ayrault,  F.  F.  Backus,  H.  Backus 
Jascom,  Bouck,  Bowdish,  Brayton,  Bruce,  Camlneleng, 
D.  D.  Campbell,  Candee,  Crooker,  Dana,  Danforth,  Dodd, 


467 


Dorlon,  Gardner,  Harrison,  Hawley,  Hotchkiss,  A.  Hunt- 
ington,  Jones,  King^ley,  Lootnis,  McNitt,  Marvin,  Miller, 
Ncilis,  Nicholas,  Parish,  Patterson,  lihoades,  Salisbury, 
S.-ars,  E.  Spencer,  \V  H.  Spencer,  Stantun,  Strong,  Town- 
send.  Tuthill,  Yanschoonhoven,  Waterbury,  Wood,  \V. 
B.  Wright,  Yawger,  Young— 47. 

Mr.  HARRISON  laid  on  the  table  a  motion  to 
reconsider  the  vote  by  which  Richmond  was  sepa- 
rated from  Kings.  He  said  that  he  hoped  the 
New  Yoik  delegaiion,  in  arranging  the  districts, 
would  bear  in  tuiud  that  he  might  be  obliged  to 
propose  annexing  Richmond  to  one  of  the  lower 
wards  of  the  city. 

Mr.  WHITE  moved  to  strike  out  of  the  section 
the  words  "  excepting  aliens  and  peisons  of  color 
not  taxed" — so  as  to    include  these  classes   in  the 
i   representation. 

A  division  ol  this  question  was  asked  to  be  first 
nut  on  s'Hking  out  "  not  taxed." 

Mr.  DANA  asked  whether, it  I  his  last  amendment 
was  adopted,  it  would  riot  exclude  from  the  basis 
of  voters  all  colored  persons,  whether  voters  or 
not  ? 

Mr  O'CONOR  replied  that  it  was  intended  to 
abolish  the  present  odious  discrimination,  between 
persons  tax<  d  and  those  untaxed — and  to  deter- 
mine whether  we  would  have  them  all  in  or  strike 
them  all  out.  Tne  other  question  would  come 
up  in  the  discus-ion  of  the  report  on  the  elective 
franchise. 

Mr.  DANA  said  this  motion,  il  it  should  pre- 
vail, would  cut  off  from  the  basis  of  representa- 
tion, those  persons  of  color  who  now  had  a  vote- 
It  was  intimated  that  this  was  to  be  lollowed  up 
by  a  motion  to  exclude  all  persons  of  color  from 
the  right  of  suffrage.  Against  such  monstrous 
injustice  he  w.'uld  protest  as  long  as  he  lived.  He 
would  evn  iai«e  his  voice  in  favor  of  exiending 
the  right  of  suffrage  to  every  one  of  God's  chil 
dren,  be  they  black  or  white. 

Mr.  KENNEDY  said  that  either  the  gentleman 
misunderstood  the  question,  or  he  (Mr.  K.)  mis- 
undersiood  him  This  was  not  a  question  of  suf- 
frage, but  one  which  i  elated  merely  to  the  basis 
of  representation,  A  portion  of  God's  children 
were  now  excluded.  He  would  put  them  all  on 
a  par,  by  s'riking  out  these  words.  There  were 
only  some  2000  who  were  taxed,  while  nearly  40,- 
000  were  excluded. 

Mr.  MURPHY  said  that  there  was  another  as- 
pect in  which  this  question  should  be  placed.  He 
supposed  with  due  deference  to  the  gentleman 
from  New  York  (Mr.  KENNEDY)  that  the  gentle- 
man front  Madison  (Mr.  DANA)  did  understand 
the  question;  and  that  it  was  the  intention  of  the 
laMei  gtMiilernan  to  protect  a  principle  which  was 
attacked  by  the  pending  amendment,  without 
pretending  that  the  right  of  suffrage  was  now  di- 
rectlv  in  issue.  He  differed,  however,  from  both 
the  gentlemen.  He  should  vote  auamst  the 
amendment  foi  the  reason  to  which  he  alluded 
when  he  rose,  and  that  was  because  it  proposed 
to  narrow  the  basis  of  representation  from  cities 
still  more  than  it  will  be  if  the  present  provision 
H  retained.  He  believed  that  two  wrongs  never 
did  make  a  right,  and  cannot  in  the  present  in- 
stance.  He  was  opposed  to  the  provision  exclud. 
ing  persons  of  color  whether  taxed  or  not  taxed. 
If  you  exclude  those  faxed,  you  increase  the  num- 
ber still  more  than  before  of  persons  excluded. 

He    would    vote  to   include  them  all;  that  is,   to 


strike  out  the  whole  clause  excluding  persons  of 
color  at  all.  As  to  the  question  of  suffrage,  which 
had  been  alluded  to,he  had  no  hesitation  in  avowing 
his  opinion  that  he  was  in  favor  of  retaining  the  pro- 
visions of  the  presentconstitution  upon  that  subject. 
He  would  deprive  no  man  ot  a  right  which  he  alrea- 
dy possessed,  whether  he  be  black  or  white.  It  was 
another  question  whether  we  should  enfranchise 
those  persons  of  color  who  had  not  hitherto  en- 
joyed the  elective  right.  He  would  retain  it  in 
those  who  were  taxed,  because  he  believed  that 
if  they  were  made  to  contribute  to  the  expenses 
of  the  government,  they  should  be  represented. 
Taxation  and  representation  was  the  great  princi- 
ple for  which  our  fathers  in  the  Revolution  con- 
tended, and  he  could  not  consent  to  violate  that 
principle  by  taxing  blacks,  and  refusing  them  the 
right  to  vote.  He  would  either  exempt  them 
taxation,  or,  if  that  was  denied,  he  would  let  such 
of  them  vote  as  should  be  taxed.  He  did  not 
mean  to  confine  representation  to  such  as  were 
taxed,  because  he  did  not  believe  property  was  a 
proper  basis  of  representation ;  and  he  could  not 
on  the  other  hand  deny  representation  to  such  as 
had  property,  which  was  liable  to  the  expenses 
of  the  government.  That  question  had,  however, 
been  touched  upon  only  incidentally  ;  as  to  the 
amendment  before  the  Convention,  he  should 
vote  against  it  for  the  reasons  first  given. 

Mr.  RICHMOND  would  ask  Mr.  M.  if  after  he 
had  taken  all  these  aliens  and  persons  of  color 
into  the  basis  of  representation,  whether  he  would 
let  them  vote  for  the  officers  nominated  on  account 
of  that  representation  ? 

Mr.  MURPHY  was  in  favor  of  retaining  the 
Constitution  as  it  was. 

Mr.  RICHMOND  said  that  for  his  own  part, 
whenever  he  should  vote  to  make  any  class  the 
basis  of  representation,  he  desired  also  to  extend 
to  them  the  right  to  vote.  He  had  nothing  to  say 
on  this  particular  proposition. 

Mr.  HUNT  wanted  to  strike  out  the  words 
"  persons  of  color  not  taxed."  There  were  none 
such  who  were  not  taxed,  unless  they  were  in 
State  Prison, 

Mr.  PERKINS  wanted  this  amended,  so  as  to 
make  the  right  of  representation  co-extensive 
with  the  right  of  suffrage. 

Mr.  VAN  SCHOONHOVEN  hoped  all  the 
words  in  relation  to  persons  of  color  would  be 
stricken  out.  To  strike  out  the  words  "  not  tax- 
ed," would  be  to  make  an  odious  distinction  be- 
tween the  electors  of  the  State.  He  was  opposed 
to  the  present  distinction  based  upon  property. 

A  VOICE  :     We  propose  to  abrogate  that. 

Mr.  VAN  SCHOONHOVEN  said  that  this  was 
indeed  taking  time  by  the  forelock,  and  was  pro- 
posing to  work  a  still  greater  wrong  upon  this 
class.  This  was  indeed  openly  proposing  a  re- 
trogade  step.  He  hoped  the  day  was  not  far  dis- 
tant when,  inasmuch  as  we  had  opened  the  door, 
and  admitted  the  colored  man  to  be  a  citizen,  that 
we  should  place  all  on  a  par  and  admit  all  to  the 
right  of  suffrage  without  reference  to  color.  But 
the  present  proposition  was  a  step  backward  in 
this  day  of  democratic  progress  and  reform.  He 
trusted  this  Convention  would  not  sanction  such 
a  wrong  as  was  here  contemplated. 

Mr.  B  A  SCOM  found  it  convenient  to  have  a 
rule  to  govern  his  action  here.  He  had  one  ap- 


468 


plicable  to  the  case  in  point.  He  regarded  it  as 
veil  settled  by  this  Convention  that  the  basis  of 
representation  should  be  co-extensive  with  the 
elective  franchise.  As  it  was,  persons  of  color 
who  were  taxed  were  a  part  of  the  voting  popu- 
lation. He  was  not  now  saying  that  this  was 
right  or  wrong,  nor  should  he  consider  whether 
the  Convention  would  change  the  rule  or  not. — 
He  trusted,  however,  that  we  should  not  do  as 
some  gentlemen  propose,  diminish  the  number  of 
the  electoral  class.  ^What  would  be  the  result  of 
the  rule  established  by  the  gentleman  from  Rens- 
selaer,  who  would  admit  all  the  colored  people  to 
the  right  of  representation  without  allowing  them 
to  vote  ?  Why,  the  same  as  is  now  seen  in  Con- 
gress, where  though  the  slave  population  was  rep- 
resented it  was  only  by  those  who  misrepresent- 
ed their  interests  in  every  particular.  He  would 
also  refer  to  a  case  in  point.  The  delegation  from 
New  York  represented  a  small  portion  of  these 
colored  citizens,  and  yet  we  saw  coming  from 
them  propositions  to  strip  them  still  farther  of  the 
privileges  which  they  now  enjoy. 

Mr.  BRUCE  felt  bound  to  vote  against  this  mo- 
tion, because  he  considered  it  his  duty,  as  a  rep- 
resentative, to  protect  as  far  as  he  could,  the 
rights  of  every  American  citizen.  He  believed 
the  success  of  this  motion  would  strike  at  some 
of  these  rights.  This  was  too  grave  a  subject  to 
be  decided  hastily,  and  to  give  time  for  delibera- 
tion he  moved  to  adjourn.  Lost. 

Mr.  KENNEDY  denied  that  this  question  was 
at  all  connected  with  the  question  of  suffrage.  He 
would  meet  that  question  when  it  carne  up.  This 
was  only  whether  there  should  be  still  kept  up 
the  distinction  based  on  taxation. 

The  debate  was  briefly  continued  by  Messrs. 
BRUCE  and  KENNEDY,  when  the  motion  to  strike 
out  the  words  "  not  taxed"  was  voted  down. — 
Ayes  13,  noes  33. 

The  Convention  then  adjourned. 


AFTERNOON  SESSION. 

The  roll  was  called. 

Sixty-five  members  answered  to  their  names. 

PRESIDENT  :     A  quorum  is  present. 

Mr.  MANN  :  What  is  the  question,  sir,  be- 
fore the  House  ? 

PRESIDENT:  On  the  motion  of  the  gentle- 
man from  New- York,  (Mr.  WHITE,)  to  strike 
out. 

The  motion  of  Mr.  WHITE  to  strike  out  "per- 
sons of  color  not  taxed,"  in  the  7th  line  of  the 
6th  section,  was  negatived,  ayes  29,  noes  56,  as 
follows : 

AYES— Messrs.  Ayrault,  Bergen,  Brayton,  Brown, 
Bruce,  R.  Campbell,  jr.,  Chatfield,  Gonely,  Crocker,  Dana 
Dodd,  Flanders,  Hunt,  Miller,  Morris,  Nieoll,  O'Conor, 
Rhoades,  Shepard,  fctevens,  Stetson,  Swacxhamer,  W. 
Taylor,  Townsend,  Van  Schoonhoven,  Warren,  White, 
Witbeck,  W.  B.  Wright-29. 

NAYS — Messrs.  Angel,  F.  F.  Backus,  Bascom,  Bouck, 
Bowdish,  Carabreleng,  D.  D.  Campbell,  Candee,  Chamber- 
lain, Clark,  Clyde,  Cornell,  Cuddeback,  Daniorth,  Dubois, 
Gebhard,  Harrison,  Hart,  Hotchkirs,  Hunter,  A.  Hunting- 
ton,  Hyde,  Kerable,  Kennedy,  Kernan,  Kirkland,  Loomis, 
Marvin,  Maxwell,  NeJlis,  Nicholas,  Parish,  Patteison, 
Penniman,  President  Richmond,  Riker,  Russell,  Salisbu- 
ry,  Sears,  Shaw,  Sheldon,  Smith,  W.  H.  Spencer,  Stanton, 
Strong,  Taft,  Taggart,  Taltmadgu,  J.  J.  Taylor,  Tuthill, 
Waterbury,  Wood,  Yawger,  Young,  Youngs— 56. 

The  other  part  of  the   motion  to  strike  out  the 


word  "aliens,'  in  the  same  line,  was  then  put  and 
negatived.  Ayes  12,  noes  78. 

Mr-  BASCOM  moved  as  an  amendment  to  add 
the  words,  "and  excluding  also,"  before  "and,"  in 
(he  7th  line,  and  also  to  add  the  woids,  "so  long 
only  39  persons  of  color  shall  be  excluded  from 
the  elective  franchise,  upon  the  same  terms  as 
white  persons."  after  the  words  "m>iiaxerl"  in  the 
eighth  line.  He  did  this  in  or  ier  to  provide  toi 
making  the  people  of  color  a  part  of  the  basis  of. 
representation  whenever  they  should  be  admitted 
lo  share  the  elective  franchise  upon  equal  terms 
with  white  citizens,  it  tTiat  should  ever  happen. 

Lost — ayes  36,  noes  40. 

Mr.  HUNT  moved  to  add  after  the  word  "ali- 
ens" in  the  8th  line,  "and  except  the  tin  natural- 
ized wives  and  widows  ol  American  citizens." — 
Lost,  without  a  division. 

The  section  was  then  agreed  to. 

The  seventh  section  was  then  read. 

Mr.  W  TAYLOR  moved  to  strike  out  Janua- 
ry and  insert  June,  as  the  time  when  the  super- 
visors  should  meet  to  make  a  division  of  their 
conn'ies. 

Mr  SHEPARD  moved  to  ir>sert  the  words  "on 
or  before'7  previous  to  the  word  "June.*'  He 
however  withdrew  it  by  request. 

Mr.  CROOKER  objected.  Irs  June,  ail  the  men 
in  his  part  of  the  State  engaged  in  the  lumber- 
is";  business  would  be  down  the  'river  in  and 
about.  New  York  ciiy. 

Mr.  MARVIN  :  Vote  it  down.  We  spent  two 
hours  about  it  the  other  day. 

Lost  —  aves  39,  noes  56. 

Mr.  R.  CAMPBELL,  jr.,  moved  to  strike  out 
from  the  6th  to  the  17th  line,  inclusive,  (contain- 
ing the  provision  that  the  division  of  counties 
shall  be  made  by  the  board  of  supervisors.)  He 
did  this  with  a  view  of  having  the  apportionment 
made  by  the  Convention  and  not  by  the  board  of 
Supervisors. 

The  motion  was  lost,  as  follows : 

A.YKS — Messrs.  Alltel,  Bergen,  Bowdish.  Brown,  Brun- 
dage,  R.  Campbell,  jr.." Chatfield, Cornell, Cuddeback,  Dan- 
forth,  Dubois,  Hunt,  Hntchinson,  Kernan,  Nellis.O'Conor, 
Shaw,  Sheldon,  Shepaid,  smith,  btetsou,  Swackhamer,  J. 
J.  Taj  lor,  W.  Taylor,  Tuthill,  Yawger— ii6. 

NAYS — Messrs  Ayrault,  F.  F.  Backus,  H.  Backus,  Eas- 
com  Bouck,  Brayton,  Bruce,  Burr,  Cambreleng,  D.  D. 
Campbell,  Chamberlain,  Clark,  Clyde,  Conely,  Crooker, 
Dana,  Dodd,  Flanders,  Gardner,  Gebhard,  Harrison,  Hart, 
Hotchkiss,  Hunter,  A.  Huntington,  E.  Huntington,  Hyde, 
Kemble,  Kennedy,  Kirkland,  Loomis,  Marvin,  Maxwell, 
Miller,  Morris,  Nicholas,  Nicoll,  Parish,  I'atemHi,  Penni- 
man,  Powers,  President,  Richmond,  Riker,  St.  John,  Salis- 
bury, S«  firs,  E.  Spencer,  W.  H.  Spencer,  Stanton,  Slow, 
Strong,  Taggart,  Talimadge,  Townsend,  Van  Schoonho- 
veu.Wanen,  Waterbury,  White  Willard,  Witbeck.Wood, 
Canute,  Cook,  Harris,  W.B.  Wright,  Younir,  Youngs— 66. 

Mr.  A.  W.  YOUG  moved  to  amend  in  the  llth 
line,  by  inserting  after  "  entitled  by  law,"  as  fol- 
lows : — «  Except  the  counties  of  Wyoming  and 
Genesee  ;  the  former  of  which  shall  be  divided 
into  two  districts,  and  the  latter  shall  constitute 
one  district." 

Mr.  YOUNG  said  that  Wyoming  had  now  2000 
more  people  than  Genesee,  and  he  wanted  Wyo- 
ming to  have  the  additional  representative. 

Mr.  TAGGART  said  this  was  almost  as  great,  a 
gag  as  the  live  minute  rule. 

Mr.  PATTERSON,  after  expressing  his  regret 
that  the  Convention  had  not  consented  to  increase 
the  number  of  members  of  the  assembly,  and  thu* 


469 


equalize  in  some  measure,  the  representation,  so 
as  to  give  to  the  smaller  counties,  with  large  frac- 
tions, their  just  weight— went  on  to  urge  that, 
taking  things  as  we  found  them,  we  were  bound 
to  remedy  such  gross  inequalities  as  now  existed 
between  these  two  counties.  Wyoming  had  a 
larger  population  than  Genesee,  by  some  2,51)0, 
and  ought  to  have  two  members.  We  had  under- 
taken to  vary  the  apportionment  of  senators  made 
last  winter,  and  why  not  that  for  the  assembly  ? 
New  York  had  a  small  fraction  over  15  members, 
Clinton  has  9000  over  Queen's  and  Suffolk, 
Wyoming  and  Genessee  to  be  entitled  to  2  mem- 
bers each,  until  the  last  apportionment ;  and  then 
Genesee  having  a  few  more  population  than 
Wyoming,  got  the  extra  number ,since  then  Wyo- 
mi'ng  has  had  5000  inhabitants  added  from  Alle- 
gany,  &c.  and  now  has  2500  more  than  Genesee. 
Genesee  having  only  a  litHe  over  28,000  and 
Wyoming  having  about  31,000. 

Mr.  CAMBRELENG  insisted  that  the  appor- 
tionment of  last  winter  being  based  upon  the  last 
census,  was  right  as  it  stood  then,  and  ought  not 
to  be  changed,  because  by  annexation,  Wyoming 
had  since  come  to  exceed  Genesee.  That  appor- 
tionment was  constitutional  and  binding  for  ten 
years,  and  could  not  and  ought  not  to  be  disturb- 
ed unless  we  went  through  the  state,  and  con- 
formed it  to  the  existing  population  in  all  cases. 
He  urged  also  that  it  would  be  a  mischievous  pre- 
cedent, and  upon  the  recurrence  of  a  new  census 
and  apportionment,  would  justify  a  legislature  in 
changing  county  lines  with  a  view  to  securing  a 
party  advantage  in  the  representation. 

Mr.  CHATFIELD  urged  that  the  last  appor- 
tionment should  stand,  or  we  ought  to  revise  it 
throughou  .  In  that  event,  perhaps,  both  these 
counties  might  lose  the  member,  and  Clinton  get 
it — for  we  had  a  right  to  take  into  consideration 
an  increase  from  natural  causes,  as  well  as  an  in- 
crease by  legislative  act. 

Mr.  CROOKER  insisted  that  we  were  bound  to 
remedy  existing  inequalities,  and  especially  where 
such  inequalities  were  glaring  and  were  so  upon 
the  census  itself.  The  census  showed  that  Wyom- 
ing now  had  some  2500  greater  population  than 
Genesee ;  and  she  was  justly  entitled  to  the  two 
members. 

Mr.  STETSON,  after  some  brief  remarks  in 
which  he  insisted  that  Clinton,  by  natural  in- 
crease since  the  census,  had  a  larger  fraction  than 
either  Wyoming  or  Genesee,  moved  to  give  Clin- 
ton two  and  Genesee  one  member. 

Mr.  MURPHY  enquired  whether  the  gentle- 
man had  not  had  a  legislative  transfer  of  popula- 
tion to  his  county  by  reason  of  the  erection  of  the 
state  prison  there. 

Mr.  STETSON  said  that  was  more  of  a  judicial 
transfer. 

Mr.  MILLER  insisted  that  this  question  had 
been  fully  discussed  and  he  would  move  the  pre- 
vious question.  He  waived  it  however  and  the 
question  being  taken,  Mr.  STETSON'S  amendment 
was  voted  down. 

Mr.  KENNEDY  thought  if  Wyoming  was  to 
gain  a  member  at  the  expense  of  any  county,  it 
should  be  at  the  expense  of  Allegany 

Mr.  A.  W.  YOUNG  replied  that  Allegany  had 
still  enough  to  entitle  her  to  two. 


The  amendment  of  Mr.  YOUNG  was  negatived 
— ayes  17,  noes  69 — as  follows  : 

AYES— Messrs.  F.  F.  Backus.  Bergen,  Brundacce,  Burr, 
Chamberlnin,  Crocker,  Dana,  Danibrth,  Dorlon.  Morris-, 
Murphy,  Patterson,  Penniman,  Swackhamcr,  Tallmadge, 
J.J.Taylor,  Young— 17. 

NOES— Messrs.  Ayrault,  H.  Backus,  Bascom,  Bowdish, 
Brayton.  Brown,  Cambreleng,  D.  D  Campbell,  R  Camp, 
bell,  jr.,  Candee,  ChatfieH,  Clark,  Clyde,  Conely,  Cornell, 
Cuddeback,  Dubois,  Flanders,  Gardner,  Gebhard",  Harrison, 
Hart,  Hotchkiss,  Hunt.  Hunter,  A.  Huntington,  E.  Hun- 
tington,  Hntchinson,  Hyde,  Kemble,  Kennedy,  Kirkland, 
Loomis,  Marvin,  Maxwell,  Miller,  Nellis,  Nicholas,  O'- 
Conor,  Parish,  Powers,  President,  Richmond,  Rii-er,  Rus- 
sell, St.  John,  Salisbury,  Sears,  Shaw,  Sheldon,  Shepard, 
Smith,  E.  Spencer,  W.H.  Spencer,  Stanton,  Stetson,  Stow, 
Taft,  Tagerart.  \V.  Taylor,  Townsend,  Tuthill,  Warren, 
White,  Willard,  Witbeck,  Wood,  Yawger,  Youngs-69. 

Mr.  COOK  and  Mr.  HARRIS  had  permission 
to  record  their  votes  in  the  negative  on  the  pro- 
position of  Mr.  CAMPBELL,  that  the  Board  of  Su- 
pervisors should  not  be  allowed  to  make  the  ap- 
portionment of  members  of  Assembly. 

Mr.  PATTERSON  moved  to  amend  so  that  the 
counties  should  be  divided  into  districts  of  as 
compact  form  as  may  be. 

There  was  a  brief  debate  on  this,  when  at  the 
suggestion  of  Mr.  LOOMIS,  the  word  convenient 
was  substituted  for  compact  and  the  amendment 
thus  varied  was  adopted. 

Mr.  BASCOM  was  confident  that  this  word 
"  convenient"  would  rather  tend  to  increase  the 
evil  it  sought  to  guard  against.  He  laid  on  the 
table  a  motion  for  the  reconsideration  of  the  vote. 

The  7th  section  was  then  agreed  to. 

The  9th  section  (in  relation  to  the  pay  of  mem- 
bers) was  then  read. 

Mr.  CROOKER  moved  to  strike  out  that  por- 
tion which  gives  the  Speaker  of  the  Assembly  an 
additional  compensation. 

After  a  brief  debate  this  was  rejected. 

Mr.  VAN  SCHOONHOVEN  moved  to  adjourn. 
Lost. 

Mr.  PERKINS  moved  an  amendment  limiting 
the  sessions  of  the  Legislature  to  100  days,  instead 
of  the  section  as  it  now  stands.  ($3  a  day  but  the 
aggregate  not  to  exceed  $300  )  Lost. 

Mr.  BROWN  moved  to  strike  out  that  portion 
which  declares  that  a  member  of  the  Legislature 
shall  receive  no  pay  during  his  absence  from  the 
Legislature,  but  before  taking  the  question  he 
moved  to  adjourn,  which  was  agreed  to. 


FRIDAY,  (50th  day,}  July  31. 

Prayer  by  the  Rev.  Mr.  McDoNOUGH. 

The  PRESIDENT  said  that  since  the  select 
committee,  appointed  to  prepare  a  digest  of  the 
returns  of  fees  and  causes,  &,c.,  from  county 
clerks,  surrogates,  judges,  chancellors,  &c.,  had 
made  their  report  to  the  Convention,  a  number  of 
other  returns  had  been  received. 

Mr.  MURPHY  wished  these  also  to  be  referred 
and  digested. 

Mr.  J.  J.  TAYLOR  thought  they  had  better  go 
ot  the  judiciary  commtttee. 

Mr.  KIRKLAND  wanted  them  kept  safely  so 
that  the  Convention  could  have  the  information 
when  needed. 

Mr.  BRUCE  :  Send  them  to  the  judiciary  com- 
mittee then  ;  they  will  be  kept  safely  there  ;  for 
you  will  never  hear  of  them  again. 

They  were  sent  to  the  select  committee  of  five. 


470 


APPORTIONMENT,  &c.,    OF  THE  LEGISLATURE. 

The  motion  of  Mr.  BROWN,  to  strike  out  the 
restriction  of  pay  to  members  of  the  assembly,  be- 
ing announced, 

Mr.  BROWN  said  he  yesterday  felt  it  to  be  his 
duty  to  move  to  strike  out  so  much  of  the  report, 
of  the  committee' of  the  whole,  as  proposed  to 
withhold  the  pay  of  members  of  the  senate  and 
assembly  during  absence  from  legislative  duty. 
The  provision  which  it  was  his  purpose  to  ex- 
punge does  not — he  was  happy  to  say — come  to 
us  from  the  standing  committee,  charged  with 
the  subject,  but  was  inserted,  as  he  understood 
upon  the  motion  of  the  honorable  gentleman  from 
Ontario,  (Mr.  WORDEN,)  while  the  report  was 
under  the  consideration  of  the  committee  of  the 
whole.  If  he  understood  the  object  of  the  mover, 
it  was  to  compel  the  attendance  of  those  members 
who  habitually  absent  themselves  from  their  pub- 
lic duties  to  the  detriment  of  the  public  service. 
The  provision  would  accomplish  no  such  pur- 
pose. If  there  were  a  class  of  idlers  amongst  the 
members  who  occupied  their  time  in  visiting  the 
various  places  of  amusement  in  this  city  and  its 
vicinity — and  he  was  informed  there  were  such — 
they  would  not  be  reached  by  this  provision. — 
They  would  take  care  to  attend  in  their  places 
and  answer  upon  a  call  for  the  ayes  and  noes  once 
a  day  and  thus  make  out  a  claim  to  the  compen- 
sation which  could  not  be  resisted,  and  the  evil 
of  absence  would  remain  wholly  uncorrected. 
The  remedy  for  such  irregularities  lies  with  the 
constituent  body,  and  they  will  hardly  fail  to  ap- 
ply it  with  a  readiness  and  a  severity  far  more  ef- 
fectual than  withholding  a  few  day's  pay.  There 
is  however  a  class  of  members,  like  the  honora- 
ble mover  of  the  provision  itself,  conscientious 
men  who  devote  their  whole  time  to  the  service 
of  the  state,  except  a  day  now  and  then  given  to 
their  families,  who  would  be  deprived  of  a  por- 
tion of  their  small,  and  he  would  say  inadequate 
compensation,  should  the  provision  be  retained. 
It  was  not  however  on  their  account  alone,  that 
he  moved  to  strike  it  out.  It  was  an  amend- 
ment wholly  unworthy  of  the  dignity  of  this 
Convention  and  of  the  really  high"  minded 
man,  to  whom  it  owed  its  existence,  and  for  one 
he  should  not  conceal  his  shame,  if  it  was  retained 
in  the  Constitution.  To  say  to  a  man,  whatever 
may  be  the  value,  and  fidelity  of  his  services,  "  if 
you  go  home  to  visit  your  family,  if  you  give  up 
a  single  day  to  the  claims  of  friendship  or  private 
interest,  if  you  devote  a  moment  to  the  happiness 
of  those  who  are  near  and  dear  to  you,  you  shall 
enter  into  a  beggarly  account  with  the  state,  for 
the  time  thus  withdrawn  from  the  public,  service" 
is  language  he  was  sure  the  members  of  this  Con- 
vention, were  not  prepared  to  hold  to  any  one. — 
The  compensation  established,  by  the  Constitu- 
tion of  1821,  was  three  dollars  per  day — a  sum 
small  enough  in  all  conscience,  considering  the 
expenses  incident  to  living  in  this  city.  If  any 
change  was  made,  it  should  be,  in  favor,  of  a 
a  larger  compensation.  And  he  felt  no  hesita- 
tion in  saying,  that  a  proposition  to  allow 
the  legislature  liberty  to  increase  if  they  saw 
fit  the  per  diem  to  four  or  over  five  dollars, 
would  command  his  concurrence  and  approba- 
tion. He  had  never  occupied  a  seat  in  the  Sen- 
ate or  Assembly,  and  there  was  no  probability 


that  he  ever  would  do  so.  He  could  speak  there, 
(ore,  from  the  convictions  of  his  own  mind,  and 
with  the  most  perfect  assurance,  those  he  repre- 
sented, would  do  justice  to  his  motives.  The  ef- 
fect of  the  provision  under  consideration,  was  to 
reduce  the  compensation,  and  to  make  it  really 
less,  than  it  had  been,  since  the  first  few  years 
of  the  independence  ot  the  State.  He  had  never 
been  able  to  comprehend,  why  services  rendered 
in  the  Legislature,  were  valued  so  low.  There 
certainly  was  no  wisdom  in  rhos  depressing  and 
lessening  the  popular  branch  of  the  government. 
There  was  certainly  nothing  in  the  character  or 
the  capacity  ot  those  who  were  expected  to  rep- 
resent, and  who  did  represent  the  country  in  the 
legislative  body,  tojuslity  such  an  estimate.  They 
were  almost  universally,  a  respectable,  influential 
and  capable  body  of  men,  taken  largely  from  the 
agricultural  classes,  and  would,  he  ventured  to  say, 
compare  advantageously  with  the  legislators  of 
any  other  State  in  the  Union.  And  they  would 
continue  to  maintain  this  position  until  their  moral 
and  intellectual  character  was  reduced  by  impu- 
tations upon  their  honor  and  integrity  engrafted 
upon  the  fundamental  law*.  Is  there  any  thing  in 
the  business  of  legisldtion  which  demands  or  jus. 
tifies  a  narrow  measure  of  compensation  ?  By  no 
means.  State  legislation  has  been  guilty  of  some 
transgiessions  and  fallen  into  many  errors,  but  the 
remedy  will  not  be  found  in  withdrawing  a  lew 
dollars  from  the  pay  of  the  members.  The  busi- 
ness of  making  laws  requires  ^ood  sense,  a  vigor- 
ous understanding,  some  knowledge  of  public 
business,  some  learning,  purity  of  character,  and 
some  industry  and  power  of  application.  The 
representative  body  is  the  depository  of  the 
public  will  for  the  time  being,  and  should  always 
reflect  the  judgment  of  the  public  mind. — 
Without  a  virtuous  and  upright  legislature  there 
is  little  security  for  private  rights  or  public  liber- 
ty. When  the  legislative  body  is  habitually  cor- 
rupt, or  habitually  degraded,  public  liberty  can 
hardly  be  said  to  exist,  and  happiness,  and  moral 
excellence,  do  not  characterize  the  mass  of  the 
people.  Let  us  do  no  act  to  lessen  the  respect 
due  to  this  department  of  the  government.  In 
the  Convention  of  1S21,  the  pay  of  the  members 
was  reduced  to  $3  per  day.  The  consequences 
were  felt  for  many  years  after.  The  legislature 
established  the  salaries  of  the  judicial  officers 
upon  a  scale  somewhat  similar  to  their  own,  and 
for  many  years,  refused  to  make  any  change. — 
The  compensation  of  the  circuit  judge — an  office 
of  great  labor  and  responsibility,  and  one  which 
subjects  the  incumbent  to  great  expense  remained 
fora  long  time  at  $1250  His  honorable  friend  from 
Dutchess  (Mr.  RUGGLKS)  discharg.  <!  the  duties  of 
circuit  jutltie,  and  vice  chancellor  «>f  the  second  cir- 
cuit, with  acknowledged  ability  Cor  15  years,  at  a 
compensation  of  $1250  for  a  part  of  the  time,  and 
$1600  for  the  residue.  The  duties  of  the  office 
wrere  laborious,  and  severe  in  the  extreme,  involv- 
ing often  times  the  loss  of  health,  and  if  the  in- 
cumbent had  been  charged  with  the  maintainence 
of  a  family,  the  salary  would  have  been  wholly 
insufficient  for  that  purpose.  This  and  similar 
acts,  were  the  natural  and  necessary  consequences 
of  the  limitation  put  upon  legislative  compensa- 
tion, by  the  Constitution  of '21.  He  was  sure  this 
was  not  the  way  in  which  the  people  of  New 


471 


York  designed  to  remunerate  faithful  public  ser- 
vices. He  would  look  however  and  see  whether, 
upon  this  question  of  compensation  equal  and  ex- 
act justice  had  been  observed  to  all  men.  Ante- 
rior to  the  year  1840,  while  the  members  of  the 
Senate  arid  Assembly  were  paid  at  the  rate  of 
$1095  a  year,  the  clerk  of  the  Supreme  Court, 
the  Register  and  assistant  Register  in  Chancery, 
each  received  more  than  $10,000  a  year,  or  public 
rumor  did  them  injustice.  Since '40  these  same  offi- 
cers are  paid  salaries  of  $2000,and  $2500  a  year  for 
services  rendered  in  their  own  offices,  and  in  the 
immediate  vicinity  of  their  own  homes.  No  one 
has  ventured  to  say  the  compensation  is  exhorbi- 
tant,  although  it  is  twice  as  much  as  we  propose 
to  give  to  members  of  the  Senate  and  Assembly. 
The  Clerks  of  the  Court  of  Chancery  receive  from 
$1200  to  $1600  per  year.  From  the  docu- 
ments on  the  table,  he  saw  that  in  1845,  the  Sur- 
rogate of  the  city  of  New  York  received  in  fees 
$8179  67— the  Surrogate  of  Dutchess  $3,244  29  ; 
the  Surrogate  of  Orange  $1738  38— and  the  Clerk 
of  the  County  of  Orange  $2891  24.  He  selected 
these  officers  because  they  resided  in  his  part  of 
the  State,  and  not  because  their  compensation  was 
greater  than  similar  officers  in  other  places ;  for 
he  found  such  was  not  the  case.  The  office  of 
Clerk  and  Surrogate  and  Register  in  Chancery, 
required  no  more  mind  and  no  more  labor,  than 
that  of  Senator  or  member  of  Assembly,  and  it 
would  be  very  difficult  to  establish  to  the  satisfac- 
tion of  the  people  why  there  should  be  so  wide  a 
difference  in  the  measure  of  their  compensation. 
The  true  rule  to  apply  to  every  Question  of  this 
kind  is  that  vvtich  prevails  in  all  the  transactions 
of  private  life — If  we  require  useful  and  valuable 
services,  and  hope  for  beneficial  results,  true  eco- 
nomy best  comports  with  a  just  and  liberal  mea- 
sure of  compensation,  The  provision  which  he 
moved  to  strike  out  was  obnoxious  for  another 
reason.  It  was  in  hostility  to  the  established 
usage  of  every  known  government.  Even  the 
most  despotic  do  not  require  the  entire  time  of 
their  public  servants  under  pain  of  docking  their 
compensation.  No  such  rule  obtained  in  the  ar- 
my and  navy,  where  the  service  was  severe  and 
the  discipline  strict.  When  the  Governor,  the 
State  officers,  the  Chancellor  or  the  Judges  of  the 
Supreme  Court,choose  to  abstract  themselves  from 
their  laborious  official  duties  for  recreation,  relax- 
ation, or  tor  any  other  purpose-,  the  public  Uo  not 
look  lor  a  corresponding  deduction  Irom  iheir  an- 
nual compensation, although  greatly  larger  than  the 
pay  oi  the  Senators  and  members  of  Assembly. — 
There  are  upon  this  flooi  geulb-men  holding 
places  of  no  inconsiderable  emolument  under  the 
gL-ncr.il  government.  Tru-y  intend  doubtl.^s  10 
be  i euiuneraied  lor  the  services  rendered  here. — 
It  he  failed  iu  stiikmg  out  this  obnoxious  amend- 
ment, will  these  Hon.  gentleman  in  the  face  of 
the  judgment  of  this  Convention,  cling  to  the 
double  compensation  ?  They  would  not,  he  was 
sure.  And  if  they  wnulci  not,  to  which  govern- 
ment—that  at  Washington,  or  that  at  Albany- 
will  they  account  tor  the  excess?  When  citizens 
are  called  into  the  public  service  and  appointed 
or  elected  to  office  it  is  always  with  the  im- 
plied  undemanding,  that  they  are  at  liberty 
to  employ  a  small  portion  of  their  time, 
not  incompatible  with  the  performance  of  their 


public  duties  in  their  private  affairs — without 
such  an  understanding,  who  but  a  man  nidifler-Mit 
to  the  most  s-olemn  obligations  of  human  life, 
would  consent  fo  take  upon  himself  a  public  ern- 
ploymen!  ?  Who  would  take  an  office,  if  such  an 
act  implied  the  abandonment  of  home,  the  ne- 
glect of  children,  and  the  severing  even  for  a 
time  of  those  ties,  which  bind  the  human  heart  to 
the  fireside  and  the  family  altar?  He  had  himself 
been  home  during  the  session  of  this  body,  and 
expected  to  go  again,  when  it  could  be  done  with 
propriety.  He  also  expected  to  rec"ive  his  pay, 
as  he  believed  every  other  member  did,  who  wag 
in  his  situation,  and  he  would  do  by  the  Senators 
and  members  of  Assembly  as  he  would  be  done 
by  himself.  Upon  principle  and  universal  usage, 
the  provision  to  withhold  the  pay  of  members  du- 
ring temporary  absence,  must  be  abandpned.  He 
therefore  called  upon  every  honorable  man  to 
unite  with  him  in  voting  to  strike  it  out.  If  any 
change  was  made  in  that  part  of  the  Constitution 
which  provides  for  the  compensation  of  the  mem- 
bers of  the  legislature,  let  it  be  to  enlarge  the  li- 
mitation, and  leave  them  power  to  increase  it,  to 
a  reasonable  extent  themselves,  under  their  re- 
sponsibility to  the  constituent  body.  He  was  sure 
our  action  would  meet  with  the  approbation  of 
the  great  mass  of  the  people  who  were  too  just 
and  too  generous  to  accept  the  services  of  men 
qualified  to  make  theii  laws  without  an  adequate 
remuneration 

Mr.  BRUCE  said  that  he  could  not  agree  with 
the  gentleman  from  Orange,  (Mr.  BROWN.)  He 
had  never  heard  that  the  State  had  ever  suffered 
since  the  present  constitution  was  adopted  for 
want  of  legislators.  He  had  never  heard  any 
grumbling  about  the  pay  of  legislators.  In  25 
years'  experience  under  the  present  system,  it 
had  not  been  found  impossible  to  at  all  times  ob 
tain  competent  and  able  men  to  perform  the  duty 
of  legislators,  nor  had  there  been  complaints  oil 
the  part  of  the  legislature  itself,  that  the  pay  was 
not  sufficient.  A  great  number  of  the  members 
are  farmers  ;  they  come  here  in  the  winter  when 
there  is  little  to  do;  and  consider  $3  a  day  a  good 
equivalent  for  their  services.  There  might  have 
been  some  gentleman  of  the  profession,  like  the 
gentleman  from  Orange,  lawyers  and  others,  who 
were  either  more  avaricious  or  deserved  more  fees 
than  others,  but  it  was  not  a  matter  of  general 
complaint  that  the  pay  of  a  member  was  inade 
quate.  He  thought  the  gentleman  was  dealing  in 
false  thunder,  when  he  compared  that  pay  to  the 
enormous  salaries  received  by  some  of  the  judi- 
cial officers  of  the  State.  Was  it  not  one  of  the 
duties  of  this  convention  to  provide  a  remedy  for 
this  extravagance  ?  He  did  not  believe  the  argu- 
ment of  the  gentleman  could  have  influence  here. 
Is  it  not  a  great  cause  of  complaint  that  the  offi- 
cers of  our  government  receive  such  large  sala- 
ries, make  such  exorbitant  charges,  in  the  shape 
of  fees?  And  he  (Mr.  B.)  hoped  that  the  Con- 
vention would  take  means  to  give  only  a  fair  and 
adequate  compensation  to  officers  of  the  govern- 
ment; and  beyond  this  he  would  not  go.  The 
people  would  insist  on  this  being  done. 

Mr.  WORDEN  said  they  were  detained  the  best 
part  of  a  day,  a  short  time  since,  in  listening  to 
tirades  against  the  Legislature*.  Attempts  were 
made  to  impeach  the  integrity  of  the  Legislature 


472 


and  to  restrict  the  sessions  to  90  days.  He  had 
then  defended  the  Legislature  and  pronounced 
the  charges  unjust.  He  voted  to  strike  out  the 
restrictions  on  the  Legislature,  and  to  make  the 
pay  $3  a  day,  all  the  time.  He  considered  $3  a 
day  totally  inadequate  for  their  services ;  but  he 
disapproved  of  inducing  the  Convention  to  increase 
the  pay.  He  went  on  to  pay  the  highest  possible 
eulogium  on  the  Legislatures  of  New- York.  No 
p'olicy  could  be  so  mischievous  as  to  tie  up  the 
action  of  the  Legislature  to  90  days'  session,  or 
to  restrict  their  pay  too  much.  He  regretted  that 
his  friend  (Mr.  BROWN)  had  not  been  here  when 
this  proposition  was  discussed.  His  able  argu- 
ments might  have  then  had  force.  It  was  more 
than  intimated  that  the  public  time  had  been 
wasted  for  the  mere  purpose  of  obtaining  the 
pittance  of  the  per  diem  allowance.  Propositions 
were  made  conveying  direct  and  unmerited  im- 
putations upon  the  Legislature.  This  Mr.  W. 
combatted,  and  here  again  reiterated  that  such 
charges  were  unfounded.  Public  economy  re- 
quired that  Legislators  should  be  well  paid.  If 
they  did  not  get  their  pay  from  the  State,  they 
would  get  it  elsewhere.  Look  at  the  House  of 
Commons,  where  no  pay  was  given,  but  where 
often  £20,000  or  £30,000  is  spent  to  obtain  a  seat. 
What  was  the  result?  No  one  could  hold  a  seat 
there  unless  he  possessed  great  wealth,  and  none 
but  the  representatives  of  the  aristocracy  were 
returned  to  that  House — and  there  the  patronage 
of  office  is  a  sufficient  compensation.  The  great 
mass  of  the  people  had  no  representation.  So 
here ;  make  the  pay  inadequate,  and  you  fill 
these  halls  with  none  but  rich  men.  This  sys- 
tem will  not  answer  in  a  free  country  like  ours. 
Mr.  W.  proceeded  to  speak  of  the  proposition  be- 
fore the  committee.  It  had  been  offered  to  defeat 
an  amendment  limiting  the  sessions  absolutely  to 
90  days.  Such  a  proposition  would  have  been 
productive  of  bad  results.  There  was  much  of 
hasty  and  crude  legislation  growing  out  of  too 
short  sessions.  He  trusted  now  we  should  come 
back  to  the  proposition  of  his  colleague  (Mr.  NI- 
CHOLAS) which  left  this  matter  where  the  pre- 
sent Constitution  left  it.  As  to  the  question  of 
absenteeism,  Mr.  W.  pointed  to  the  great  abuses 
which  had  grown  up  during  the  past  few  years. 
Last  session,  business  was  delayed  more  than 
three  weeks  for  want  of  a  two-thirds  quorum. 
Members  would  absent  themselves  and  could  not 
be  kept  here  and  then  many  questions  had  to  be 
reconsidered  that  had  been  decided  in  their  ab- 
sence. Mr.  W.  had  offered  this  proposition  as  a 
compromise.  But  after  the  very  able  and  con- 
vincing argument  of  the  gentleman  from  Orange 
he  hoped  we  should  reconsider  this  whole  mat- 
ter, and  leave  the  question  as  it  now  stood  in  the 
Constitution.  Every  member  undoubtedly  ought 
to  attend  to  his  duties,  but  it  was  not  always  done 
and  could  not  be  entirely  corrected,  and  this  pro- 
position was  a  compromise  between  various  ones 
that  were  suggested.  As  to  our  legislature  and 
this  Convention  they  would  compare  with  the 
first  legislative  bodies  of  Europe  or  any  part  of 
the  Union,  and  New  York  ought  to  be  proud  of 
these  bodies. 

Mr.  SWACKHAMER  hoped  that  this  restric- 
tion would  not  be  put  into  the  constitution,  not  to 
allow  members  to  go  home  and  see  their  families 


without  deducting  the  per  diem  allowance  for  the 
time  they  are  absent.  It  was  too  small  a  matter 
for  the  consideration  of  this  convention.  He 
would  not  allow  members  of  the  legislature  to  fix 
their  own  pay,  but  they  were  perfectly  compe- 
tent to  fix  the  salaries  of  their  successors.  From 
his  peculiar  and  almost  solitary  position  on  this 
subject,  (as  there  was  but  one  other  member  si- 
milarly situated,)  he  had  deemed  it  his  duty  to  say 
a  word  upon  this  question,  although  loth  to  take 
up  the  time  of  the  convention.  He  had  made  a 
proposition  heretofore  to  limit  the  pay  of  mem- 
bers after  a  certain  period  of  their  session  to  $1 
50  per  day.  But  he  was  willing  now  to  move  that 
their  pay  should  be  increased  to  $5  per  day,  that 
the  dignity  of  the  State  might  be  sustained,  and 
its  public  servants  fully  paid.  His  only  object  in 
his  previous  motion  was  to  limit  the  period  of  the 
annual  sessions.  Nor  did  he  believe  it  was  a  fair 
or  generous  proposition  that  members  should  be 
docked  ior  every  day's  absence  from  their  seats  in 
this  chamber.  '  It  was  true  that  we  had  always 
been  able  to  obtain  competent  legislators,  but  of- 
ten at  the  pecuniary  loss  of  those  who  patrioti- 
cally volunteered  to  give  up  a  small  business,  for 
the  purpose  of  serving  the  people  for  a  smaller 
compensation  than  the  income  of  their  legitimate 
business.  As  to  the  remark  of  the  gentleman 
from  Orange,  in  regard  to  the  officers  of  the  Uni- 
ted States  Government  who  were  members  of  this 
body,  he  assured  him  that  the  rule  adopted  in  the 
Custom  House  at  New  York,  where  he  held  an 
office,  with  regard  to  what  some  would  term  the 
small  fry  ;"  that  is  not  the  "  big  bugs,"  or  first 
class  officers,  was  that  when  there  was  no  work 
there  should  be  no  pay — a  very  good  rule,  too,  ex- 
cept when  applied  to  the  pay  of  the  members  of 
the  Legislature.  So  the  gentleman  from  Orange 
might  be  at  ease  in  regard  to  his  receiving  double 
pay- 
Mi.  BROWN  said  he  did  not  make  his  remark 
in  an  unkind  spirit.  He  had  sincerely  hoped  he 
received  pay  lor  both  offices.  He  certainly  thought 
his  services  were  worthy  of  it. 

Mr.  SWACKHAMER  said  that  as  such  were 
the  gentleman'*  feelings  towards  him  he  certainly 
couivi  make  no  reply  to  that  remark. 

Mr.KlKKLAlSD  Hn-imhi  that  this  entire  sec- 
(ion  and  all  us  amendments  were  unworthy  the 
dignity  ut  this  body  and  ot  this  State.  Togo  into 
a  paltry  calculation  ot  a  lew  dollars  and  cents  upon 
the  question  of  the  ability  of  the  members  uf  our 
Legislature  to  serve  their  constituents,  yr  as  to 
the  value  of  then  services,  he  believed  to  be  de- 
ro^atorv  to  the  people,  and  to  this  body  a«  the  re- 
presentatives o;  the  people.  He  did  not  believe 
I  hat  we  should  not  have  Confidence  in  ihose 
.vhom  the  people  have  put  in  their  own  place,  to 
make  then  lavvs.  We  were  not  to  supp<se  that 
they  would  at  all  times  hold  themselves  amena- 
ble to  that  public  opinion  which  w.is  the  true  cem- 
servaior  ot  legislation  and  ot  government  He 
wished  to  treat  (lie  Leyisiatuie  wi'.h  that  respect 
they  were  entitled  lo  i.s  representatives  of  the 
people;  and  not  to  have  the  Constitution  incuni- 
bered  with  paltiy  details  ot  dollars  and  cents.  To 
get  rid  ot  the  wnoie  detail  ot  this  question,  and 
,.ll  discussion  in  relation  to  striking  out  threedol- 
lars  or  three  cents  a  day,  or  any  other  amount,  he 
had  an  amendment,  which  he  would  send  up, 


473 


and  which  he  hoped  wonld  receive  the  assent  of 
the  gentlemen  who  had  spoken  upon  this  question. 
His  amendment  was  as  follows: — 

Strike  out  the  entire  section  and  insert 

"  The  compensation  of  members  of  the  Senate  and  As- 
sembly shall  be  fixed  by  law  ;  but  no  Legislature  shall  in- 
crease the  compensation  of  its  own  members  beyond  the 
amount  established  by  law  at  the  time  of  their  election." 

Mr.  LOOMIS  was  i-i  favor  of  Mr.  K  's  plan.— 
This  matter  ought  to  be  left  to  the  Legislature  ; 
and  employ  merely  dignified  and  proper  limita- 
tions. 

Mr.  W.  TAYLOR  thought  it  would  be  much 
the  best  to  restore  the  section  to  what  it  was  in 
the  old  Constitution. 

Mr.  NICHOLAS  said  after  the  sensible  and  just 
view  taken  of  this  subject  by  several  gentlemen 
who  have  addressed  the  Convention  this  morning 
it  may  be  unnecessary  for  him  to  enlarge  upon 
what  has  been  said,  but  he  rose  to  say  that  if  the 
gentleman  from  Orange  (Mr.  BROWN)  was  dispos. 
ed  to  withdraw  his  amendment,  he  Mr.  N.  would 
be  glad  to  renew  his,  to  fix  the  maximum  perdiem 
pay  of  members  at  $3  and  then  leave  the  whole 
matter  as  it  now  is  in  the  Constitution.  As  to 
the  provision,  preventing  members  from  receiving 
pay,  should  they  be  called  home  by  the  sickness 
of  their  family,  or  any  domestic  calamity,  he  Mr. 
N.  had  always  disapproved  of  it.  A  man  of  in- 
tegrity will  not  intermit  his  attention  to  his  offi- 
cial duties  without  good  and  sufficient  reasons,  but 
when  he  is  required  by  circumstances  beyond  his 
control  to  incur  the  expense  of  a  journey  home, 
and  with  the  permission  of  the  body  of  which  he 
is  a  member,  he  should  not  be  subjected  to  an 
abatement  ot  his  pay  on  account  of  such  absence 
If  the  peo;.lew,il  send  men  of  loose  morals  fiere 
they  w'ill  evade  this  restriction  ;  if  you  will  impose 
it,  they  will  always  feign  excuses  to  bring  them- 
selves within  the  exception  of  sickness.  Not  one 
day's  pay  will  be  withheld  from  such  men,  and 
the  only  effect  of  the  provision  will  be  to  do  in- 
justice to  honest  representatives,  and  to  perpetuate 
a  temptation  to  men  wanting  integrity  to  evade 
the  Constitution. 

Mr.  SALISBURY  had  not  heard  complaints 
among  the  people  that  the  pay  of  members  of  the 
Legislature  was  too  much.  But  he  had  heart 
complaints  that  they  were  spending  too  much  time 
in  discussing  subjects  which  had  no  relation  to 
their  duties,  and  in  making  political  capital.  The 
unnecessary  length  of  the  sessions  would  be  avoid 
ed,  perhaps,  when  the  Legislature  should  be  re 
lieved  from  much  of  the  small  matters  of  legisla 
tion  which  now  devolved  upon  them.  The  pa) 
he  believed  to  be  a  very  fair  compensation,  and  i 
three  dollars  could  obtain  talent  equal  to  that  ir 
Congress,  at  eight  dollars,  or  in  the  Parliamen 
of  Great  Britain,  as  the  gentleman  from  Ontari 
(Mr.  WORDEN)  had  said,  he  could  not  go  for  in 
creasing  it.  He  thought  the  amendment  offeree 
by  that  gentleman,  and  adopted,  a  g^ood  one,  an 
should  vote  to  sustain  it,  believing  it  desirable,  i 
possible,  to  secure  attention  to  public  duty  b 
public  servants. 

Mr.  VAN  SCHOONHOVEN  was  himself  abou 
to  propose  to  strike  out.  He  did  not  believe  th 
proposition  could  be  carried  into  effect  so  as^  t 
effect  a  single  dollar  of  the  pay  of  members.  Th 
term  sickness  was  unlimited  in  its  meaning,  an 

34 


ie  members,  if  they  desired,  could  always  fur- 
ish  excuses  of  that  kind,  and  no  legislature 
fould  hesitate  to  receive  such  an  excuse.  He 
bought  it  very  small  business  to  insert  such  a 
revision  in  the  Constitution.  And  further,  where 
ie  State  would  save  a  dollar  by  this,  they  would 
ose  ten  or  fifteen  in  trying  a  case  of  this  kind, 
""here  were  many  men,  members  of  the  Legisla- 
ure,who  could  make  in  their  own  business  double 
tie  amount  of  their  per  diem,  and  he  therefore 
id  not  believe  that  any  member  ever  desired  to 
xtend  the  session  for  the  sake  of  his  three  dol- 
ars  a  day. 

Mr.  TAGGART  continued  the  debate,  in  favor 
f  striking  out  the  amendment  ot  Mr.  WORDEN. 

Mr.  A.  W.  YOUNG  appealed  to  the  Convention 
gainst  spending  too  much  time  in  debate.  Com- 
laintswere  coming  in  thicker  and  faster,  that  so 
ittle  progress  was  made. 

Mr.  E.  SPENCER  believed  the  subject  had  been 
iscussed  long  enough  ;  and  hoped  the  question 
vould  be  taken. 

Mr.  DANFORTH  was  in  favor  of  limiting  the 
essionto  90  days,  which  he  believed  was  a  period 
f  sufficient  length  for  all  practical  purposes.  But 
e  hoped  the  Convention  would,  with  a  great  de- 
ree  of  unanimity,  agree  to  strike  out  the  obnox- 
ous  provision  that  men  who  come  hereupon  their 
lonor  shall  be  called  to  account  for  every  hour 
hat  they  find  it  necessary  to  be  absent  from  the 
Hou*e.  Nor  did  he  believe  it  just  that  the  pay 
hould  be  deducted  when  they  were  absent  at  their 
lomes  for  a  few  days  during  the  session. 

Mr.  KENNEDY.  And  paying  for  board  here 
it  the  same  time. 

Mr.  SALISBURY  would  apply  the  same  rule  to 
he  public  officers  »hat  individuals  did  to  their 
igents.  No  one  would  pay  their  agent  their  regu- 
ar  per  diem  allowance  while  he  was  riding  about 
he  counny,  to  New  York  or  Boston.  He  demand, 
ed  the  aves  and  noes. 

Mr.  SIMMONS  concluded  the  discussion,  in  fa- 
or  of  retaining  the  present  sec'ion  ;  when  the  mo- 
ion  of  Mr.  BROWN  was  agreed  to— ayes  81,   nays 
22,  as  follows : 

AYES— Messrs.  Angel,  Ayrault,  F.  F.  Backus  H.  Back- 
us,  Bergen,  Bouck,  Bowdisb,  Bray  ton,  Brown,  BulJ.  Cam- 
breleng  D.  D.  Capmbell,  U.  Campbell,  jr.  Candee.  i  ham- 
berlain,  Chatheld  Clark,  Clyde,  Conely,  Cook,  Cornell 
Crooker,  Cuddebsck  Danforth,  Dorlon.Forsyth,  GeMiard' 
Harrison,  Hotchkiss,  Hunt,  Hunter,  A.  Huntington  E' 
Huntmgton,  Hutchinson,  Hyde,  Jones,  Jordan,  Kem'ble' 
Kennedy,  Reman,  Kingsley,  Kirkland,  McNeil,  McNitt 
Marvin,  Maxwell,  Miller.  Morris,  Murphy,  Nellis  Nicho' 
las,  Nicoll,  O'Conor.  Parish,  Perkins,  Powers.  Rhoades 
Richmond,  Riker,  Russell,  Seers,  Shaw,  Sheldon  Shep-' 
ard,  Smith.  E.  Spencer,  W.  H.  Spencer,  Stephens  Strt- 
son,  Strong,  Swackhnmer,  Taggart,  J.  J.  Taylor,  W  Tav- 
lor.  Tuthill.Vache,  Van  Schoonhoven,  Warren,  White, 

NAYS— Messrs.  Archer,  Bascom,  Burr,  Dana  Dodd 
Dubois,  Flanders,  Gardner,  Harris,  Patterson,  St.  John* 
Salisbury,  Simmons,  Stanton,  Talt,  Tallmadee.  Town' 
sefid,  Waterbury,  Willard,  W.  B.  Wright,  Yawfer.Youngs 

Mr.  MURPHY  moved  to  strike  out  all  the  sec- 
tion down  to  the  word  "  route,"  and  insert 

"  The  members  of  the  legislature  shall  receive  for  their 
service,  a  compensation  to  be  ascertained  by  law  and  paid 
out  ol  the  public  treasury.  But  no  increase  of  compensa 
tion  shall  Uke  effect  during  the  year  in  which  it  shall 
have  been  made,  nor  shall  any  law  be  passed  increasing 
the  compensation  of  the  members  of  the  legislature  be- 
yond the  cum  of  three  dollars  per  day." 


474 


Mr.  WHITE  called  for  the  yeas  and  nays,  and 
they  were  ordered. 

Mr.  SWACKHAMER  moved  to  amend  the 
amendment,  by  adding: — 

•''  Nor  shall  any  session  of  the  legislature  extend  beyond 
the  period  of  ninety  days,  except  in  cases  of  war,  insurrec- 
tion, or  invasion." 

Mr.  RUSSELL  called  for  the  yeas  and  nays, 
and  they  were  ordered. 

Mr.  NICOLL  urged  that  as  a  large  amount  of 
the  business  which  had  formerly  occupied  the  le- 
gislature would  be  withdrawn,  that  therefore 
there  was  no  necessity  for  limiting  the  session. — 
And  also  instances  might  arise  where  it  would  be 
necessary  for  the  public  interests  to  extend  the 
session. 

Mr.  MURPHY  said  that  it  had  always  been 
held  that  the  Legislature  was  a  barrier  against 
the  encroachments  on  the  freedom  and  liberty  of 
the  people.  To  limit  these  sessions  would  there- 
fore be  to  destroy  the  efficiency  of  its  power. 

Mr.  MARVIN  said  that  the  Legislature  was  the 
palladium  of  popular  rights,  and  that  restrictions 
of  this  nature  upon  it  would  only  tend  to  endan- 
ger those  rights  and  the  liberties  of  the  people. — 
If  the  sessions  were  too  long,  that  was  a  matter  to 
be  corrected  by  the  people  themselves,  in  their 
action  in  electing  members. 

Mr.  SWACKHAMER  said  thai  if  he  should 
remain  silent  after  the  almost  overwhelming  as- 
saults made  against  his  amendment  by  able  mem- 
bers of  this  body,  it  might  be  thought  that  he  had 
submitted  an  indefensible  proposition,  perhaps  for 
the  amusement  of  members,  and  not  with  the  ex- 
pectation of  accomplishing  any  good.  He  was 
not,  however,  frightened  from  his  propriety,  nor 
would  he  permit  the  proposition  to  be  stifled 
while  breathing  its  first  breath,  without  one  ef- 
fort at  least  to  resuscitate  it.  This  was  the  fiist 
occasion  on  which  he  was  compelled  to  differ,  in 
this  manner,  from  his  colleague  (Mr.  MURPHY.) 
Although  he  was  always  pleased  to  co-operate 
with  his  associate  on  this  floor,  yet  duty  required 
that  he  should  press  IMS  amendment  now  before 
the  Convention.  His  colleague  (Mr.  MURPHY) 
had  characterized  his  proposition  as  quack  medi- 
cine, unworthy  the  Convention,  the  Legislature  or 
the  people  ot  this  sjreat  State — that  it  reflected  on 
the  Legislature  which  was  sent  here  to  protect 
the  people,and  which  was  one  of  fh«Jir  safe-guards 
— and  therefore  we  needed  no  such  checks  on  their 
action.  He  did  not  care  about  the  name  so  long 
as  it  proved  a  specific  for  the  contagious  malady 
of  long  speech  making,  long  sessions  of  the  Le- 
gislature, and  the  passage  of  innumerable  acts  so 
ambiguous,  intricate  and  ridiculous  that  those 
who  make  them  cannot  understand  their  mean- 
ing  or  appreciate  their  import.  It  was  to 
remedy  these  disorders  in  the  government  that 
he  would  administer  the  dose  of  medicine  which 
it  was  feared  by  some  would  cure  the  evil  too 
soon.  It  was  his  opinion,  with  due  deference  to 
his  colleague,  that  it  was  a  prerogative  of  the 
Convention,  in  behalf  of  the  people,  to  prescribe 
the  duty  of  the  Legislature — to  say  when  it  shall 
meet  and  when  it  shall  adjourn — what  it  may, 
and  what  it  may  not  do.  One  of  the  greatest 
causes  of  complaint  was  that  the  Legislature  had 
assumed  too  much  power — that  our  agents  '•  left 
undone  that  which  they  ought  to  have  done,  and 


done  that  which  they  should  not  do."  They 
have  taxed  some  of  our  citizens  for  the  benefit  of 
others— they  have  granted  special  privileges  to 
the  favored  few,  and  refused  them  to  the  many. — 
They  have  neglected  to  pass  general  laws  and 
held  long  sessions,  to  make  political  capital  for 
Presidents  and  Governors  in  advance,  for  the  peo- 
ple. They  have  refused  to  simplify  our  laws  and 
reorganize  the  judiciary.  They  have  created  a 
host  of  useless  offices  for  the  benefit  of  party. — 
Yes,  all  these  evils  and  many  more  have  been  in- 
flicted upon  the  community  by  the  immaculate 
Legislature,  until  one  loud  and  deep  voice  has 
gone  up  from  every  quarter  of  the  State  in  favor 
of  anew  Constitution,  which  will  effect  the  re- 
form demanded.  Yet,  we  are  told,  that  it  is 
sacrilegious  even  to  look  at  this  formidable  power. 
It  was  not  material  to  him  whether  the  amend- 
ment he  had  just  submitted  passed  or  not.  He 
would  prefer  the  section  as  it  now  stands,  for  it 
provided  in  effect  for  the  same  thing,  but  if  it  was 
to  be  amended  as  proposed  by  his  colleague,  then 
he  was  anxious  that  his  amendment  should  pass, 
for  he  believed  the  Convention  was  ready  to  adopt 
some  such  provision  in  conformity  with  the  clear- 
ly expressed  wish  of  the  people.  The  gentleman 
from  Ontario  (Mr.  MARVIN,)  had  also  assailed  his 
proposition,  but  he  (Mr.  S.)  would  not  admit  that 
declamation  was  argument,  if  it  was  there  could 
not  be  a  shadow  of  his  amendment  left,  for  the 
gentleman  came  down  on  it  like  a  thunder  shower 
in  a  hot  day.  He  (Mr.  MARVIN,)  had  taken  the 
same  track  as  his  colleague,  but  he  had  gone  one 
step  farther  ;  he  could  not  stop  short  of  dear 
old  England,  as  though  she  had  any  thing 
to  d^o  with  making  a  republican  constiflkion. — 
The  gentleman  denounces  this  plan  for  limit- 
ing the  sessions  of  the  Legislature  as  an  anti- 
republican,  iron-bedstead  rule,  and  as  undignified. 
He  also  speaks  of  the  British  parliament  as  the 
great  foundation  of  liberty  and  school  of  instruc- 
tion for  the  people.  This  may  be  so,  he  would 
not  deny  it,  but  if  is  true,  the  down-trodden  mil- 
lions of  England  have  paid  their  masters  well  for 
their  instruction  in  political  science.  It  was  a 
strange  view  of  political  ethics  that  taught  op- 
pressed and  degraded  man  to  respect  free  institu- 
tions, yet  compelled  him  to  adore  royal  birth  and 
bow  the  head  to  the  sceptre  of  despotism.  That 
teaches  him  to  appreciate  freedom  of  conscience, 
while  it  virtually  requires  him  to  worship  God 
contrary  to  its  dictates,  or  compels  him  to  labor 
for  the  support  of  ministers  who  have  not  his  con- 
fidence, and  churches  that  he  cannot  attend.  That 
learns  him  submission  to  a  government  in  defence 
of  which  he  must  shed  his  blood  but  denies  him 
a  voice  in  its  administration.  From  such  a  school 
he  hoped  the  American  people  would  never  re- 
ceive instructions.  But  the  gentleman  lias  other 
reasons — American  reasons — for  opposing  the 
amendment.  He  considered  the  legislature  a 
first  rate  school  for  our  people,  and  therefore 
the  members  must  be  allowed  to  sit  here 
five  or  six  months  for  our  benefit,  and  to  enlight- 
en the  large  children  of  this  State.  Perhaps  it 
would  be  well  to  erect  another  Normal  School — 
one  in  the  Capitol.  But  he  thought  the  one 
proposed  to  be  continued  was  on  too  large  a  scale, 
it  would  be  too  expensive.  Ano'her  objection  was 
that  it  excluded  females— to  this  he  was  also  op- 


475 


posed  —  he  went  for  equal  rights.  Besides  the 
largo  boys  to  be  connected  with  the  new  estab- 
lishment, ought  to  be  proud  of  the  honor  of 
teaching  the  people  of  this  state  the  theory  of 
go^einment,  without  the  remuneration  proposed 

i;iven  to  the  teachers  in  this  new  school. — 
But  enough  of  this,  for  he  was  not  in  order  in  fol- 
lowing members  out  of  order.  The  gentleman 
farther  remarked  that  the  Legislature  was  the 
battle  field  of  liberty,  mid  it  was  therefore  neces- 
sary that  the  members  should  not  be  restricted, 
but  heard,  if  they  choose  one  continuous  session, 
and  make  laws  ad  libitum.  He  had  been  more 
than  once  a  member  of  that  body,  and  he  had 
never  yet  seen  any  olher  than  political  battles 
fought  there.  True,  some  persons  had  sacrificed 

political  "  lives,  fortunes  and,  almost,  their 
sacred  honors ;"  but  this  was  no  reason  why  oth- 
ers should  be  tempted  in  the  same  dangerous 
path.  The  gentleman  from  Essex  (Mr.  SIM- 
MO  ITS)  justly  remarked  that  much  of  the  time  of 
Legislation  was  occupied  In  the  passage  of  special 
acts;  such,  for  instance,  as  changing  the  name  of 
Miss  Nancy,  Miss  Susan,  Miss  Lucy  Long,  and 
other  strange  names.  Seven-eighths  of  all  the 
laws  passed  while  he  was  a  member,  were  of  a 
special  character,  and  entirely  unworthy  the  con- 
sideration of  the  legislature.  The  battle-field 
business  reminded  him  of  a  speech  made  by  a 
gentleman  from  New-York,  last  winter,  during 
that  long  session  of  the  legislature.  He  said, 
"  we  need  a  standard  bearer  for  the  democracy  at 
the  Capitol."  Now,  it  was  this  standard  bearing 
at  Albany  that  had  borne  down  the  people  until 
they  would  not  bear  under  it  any  longer.  They 
would  bear  their  own  standard.  What  they 
wanted  --.vas  that  their  representatives  should 
come  here  and  attend  to  the  business  for  which 
they  are  sent,  and  then  adjourn.  He  had  one 
word  more  to  say  about  the  battle-field,  the  school 
and  the  standard  bearer.  The  field  on  which  is 
to  be  fought  the  great  battle  of  human  liberty  was 
the  common  school  system  of  this -country,  and 
not  the  legislature.  It  was  on  this  field  that  the 
next  enduring  monument  to  national  greatness 
would  be  erected,  and  on  its  cap  stone  would  be 
borne  the  standard  of  American  glory.  In  this 
chool  will  our  children  learn  to  reverence  the 
institutions  of  our  country,  not  on  account  of  their 
antiquity,  but  because  they  are  founded  on  the 
exalted  principles  of  moral  wisdom  and  sublime 
truth. 

Mr.  FORSYTH  moved  the  previous  question, 
and  it  was  seconded  by  a  vote  of  42  to  21,  which 
being  less  than  a  quorum,  the  vote  was  again  ta- 
ken, and  49  voted  in  the  affirmative  and  23  in  the 
negative. 

The  main  question  was  then  ordered,  and  the 
yeas  and  nays  taken  on  Mr.  SWACKHAMER'S 
amendment,  and  resulted  yeas  52,  nays  52,  as  fol- 
lows : —  • 

AYES— Messrs.  Ayrault,  F.  F.  Backus,  Bergen,  Burr, 
Cambrclenij,  D.  D.Campbell,  R.  Campbell,  jr.,  Candee, 
Clark,  Cook,  Dana,  Dantorth,  Dodd,  Dorlon,  Dubois,  Gard- 
ner,  Harrison,  Hotchkiss,  Hunter,  A.  Huntington,  Jordan, 
Kernan,  Kingsley,  NcNuil,  McNitt,  Maxwell,  Morris,  Pow- 
ers, llichmond,  Hiker,  Russell,  Salisbury,  Sears,  Shaw, 
Sheldon,  Simmons,  E.  Spencer,  Stanton,  Stetson,  Strong, 
Swnnkhamer,  Taft,  Tallmadge,  J.  J.  Taylor,  Townsend, 
Vache,  White,  Willard,  Wood,  W.  B.  Wright,  Yawger, 
Youngs-63. 


NOES— Messrs.  Angel,  H.  Backus,  Bascom,  Bouck, 
Bowdish,  Brayton,  Brown,  Bull,  Chamberlain,  Chatfield, 
Conely,  Cornell,  Crooker,  Cuddeback.  Flanders,  Forsyth, 
Gebhard,  Harris,  Hart,  Hunt,  E.  Huntington,  Hutchinson, 
Hyde,  Jones,  Kemble,  Kennedy,  Kirkland,  Loomis,  Mar- 
vin, Miller,  Murphy,  Nellis,  Nicholas,  Nicoll,  O'Conor, 
Parish,  Patterson,  Perkins,  President,  Rhoades,  St.  John. 
Shepard,  Stephens,  Taggart,  W.  Taylor,  Tilden,  Tuthill, 
Van  Schoonhoven.  Warren,  Waterbury,  Worden,  Young 
—52. 

So  the  amendment  was  lost 

The  question  then  recurred  on  Mr.  MURPHY'S 
amendment,  and  it  was  lost,  ayes  45,  noes  63,  as 
follows : — 

AYES— Messrs.  Angel,  F.  F.  Backus,  H.  Backus,  Bas- 
com, Bouck,  Bowdish,  Brown,  Brundage,  Bull,  Chamber- 
lain, Chatfield,  Conely,  Cornell.Crooker.Cuddeback,  Flan 
ders,  Gebhard,  Hart,  Hunt,  Jones,  Kemble,  Kennedy,  Loo- 
mis,  Marvin,  Morris,  Murphy,  Nicholas,  Nicoll,  O'Conor, 
Parish,  Perkins,  President,  Rhoades,  Shepard,  Smith,  Ste- 
phens, Stow,  Tallmadge,  W.  Taylor,  Tilden,  Tuthill,  Van 
Schoonhoven,  Warren,  Worden,  Young— 45. 

NOES— Messrs.  Ayrault,  Bergen,  Brayton,  Bruce,  Burr, 
Cambreleng,  D.  D.  Campbell,  R.  Campbell,  jr.,  Candee, 
Clark,  Clyde,  Cook,  Dana.  Daniorth,  Dodd,  Dorlon,  Du- 
bois, Gardner,  Harris,  Harrison,  Hotchkiss,  Hunter,A.  Hun- 
tington, E.  Huntington,  Hutchinson,  Hyde,  Jordan,  Ker- 
nan, Kingsley,  Kirkland,  McNeil,  McJNitt,  Maxwell,  Mil- 
ler, Nellis,  Patterson,  Powers,  Richmond,  Riker,  Russell, 
St.  John,  Sears,  Shaw,  Sheldon,  Simmons.  E.  Spencer, 
Stanton,  Stetson,  Strong,  Swackhamer,  Tafl't,  Taggart,  J. 
J.  Taylor,  Townsend,  Vache.Waterbury,  White,  Willard, 
Wood,  W.  B.  Wright,  Yawyer,  Youngs— 63. 

Mr.  WORDEN  then  moved  to  amend  by  adding 
after  the  word  *'  allowance,"  the  following : — 

"  Unless  two-thirds  of  all  the  members  elected  shall  as- 
sent to  the  continuance  of  the  session  beyond  the  period 
of  100  days." 

Mr.  W.  only  desired  to  draw  the  attention  of 
the  Convention  to  what  was  the  protection  ot  po- 
pular liberty — the  legislative  power.  The  Exec- 
utive Department  was  in  lull  operation  during  the 
entire  year  And  yet  it  was  now  proposed  to  cripple 
the  Legislature  which  could  alone  check  and  con- 
trol the  exercise  of  that  power.  Gentlemen  had 
argued  as  it  no  other  power  could  be  corrupted 
except  the  Legislature.  He  would  call  attention 
to  other  departments.  Suppose  the  executive 
should  commit  acts  of  gross  usurpation  upon  the 
rights  of  the  people,  and  the  90  days  should  ex- 
pire, while  the  Legislature  were  engaged  in  the 
examination  of  those  acts  with  the  view  of  apply- 
ing a  remedy,  where  would  be  the  protection  of 
the  rights  of  the  people?  He  denied  th^t  this 
measure  had  been  called  for  by  the  people.  It 
had  its  origin  with  those  demagogues,  who,  not 
having  any  legitimate  popularity  to  rely  upon, 
were  always  seeking  to  get  up  a  little  factitious 
favor,  by  such  movements  as  this.  To  limit  and 
restrict  the  legislative  power  was  only  limiting 
popular  power.  He  begged  gentlemen  to  pause 
before  sanctioning  this  principle.  Will  they  not 
be  willing  to  trust  the  correction  with  the  people 
where  it  belongs? 

Mr.  HARRIS  said  it  was  always  with  great 
self  distrust  that  he  found  himself  coming  to  a 
conclusion  opposite  to  that  of  his  friend  from  Onta- 
rio (Mr.  WORDKN.)  But  he  certainly  thought  there 
could  be  no  better  provision  made  in  regard  to  this 
subject,  than  that  made  by  the  gentleman  himself 
in  his  amendment  heretofore  adopted. 

Mr.  WORDEN  said  that  amendment  had  been 
often  attributed  to  him  ;  and  he  wished  it  to  be  dis- 
tinctly understood  that  he  claimed  no  commenda- 
tion for  bringing  it  forward.  He  had  offered  it  be- 
cause he  believed  it  a  compromise  between  th« 


476 


worse  amendments  that  were   pro- 
conceded  that  the  fact   was  as 


different  and 
posed. 

Mr.  HARRIS 
stated  by  Mr.  W.  He  was  willing  to  admit,  with 
thatgentleman  and  the  gentleman  from  Chautau- 
que,  (Mr.  MARVIN,)  that  the  Legislature  was  the 
great  conservator  of  ihe  liberty  of  the  People, 
and  he  would  place  all  confidence  in  its  integrity. 
But  he  did  not  suppose  that  byadopting  the  amend- 
ment, we  were  limiting  them  to  any  certain  peri- 
od. If  any  great  emergencies  should  arrive,  call, 
ing  for  an  extension  of  the  session,  as  had  been 
suggested,  it  would  demand  the  exercise  of  pairi- 
otism  enough  on  the  part  of  members  of  that 
body  to  remain  in  session  without  pay.  He  be- 
lieved they  would  always  possess  sufficient  patri- 
otism to  induce  (hem  to  do  so.  He  desired  to 
take  out  of  their  way  all  temptation,  however,  to 
continue  their  sessions  a  single  day  beyond  the 
period  of  90  days,  in  ordinary  circumstances. 

Mr.  RICHMOND  agreed'  generally  with  Mr. 
HARRIS.  There  would  be  time  enough  generally 
to  do  up  all  the  business  in  100  days.  And  when 
it  becomes  necessary  to  sit  longer  there  will  be 
patriotism  enough  to  stay  here  a  few  days  with- 
out pay. 

Mr.  WORDEN:  There  is  patriotism  enough  in 
the  House  of  Lords  and  of  Commons,  in  England, 
to  sit  in  Parliament,  without  any  pay.  Why  not 
apply  the  same  principle  here  ?  " 

Mr.  RICHMOND  understood  all  about  that.— 
He  was  saying  that  he  believed  there  was  patri- 
otism enough  in  the  Legislature  to  remain  a  few 
days,  it  the  public  emergency  required.  And  he 
had  little  doubt  but  what  in  such  a  case  the  citi- 
zens of  Albany  would  be  patriotic  enough  to  throw 
off  a  little  from  the  expense  of  board,  so  that  we 
could  have  a  little  patriotism  all  around  !  He  only 
rose  to  say  that  he  should  vote  for  the  section  as  it 
stood.  He  would  have  it  in  the  Constitution  that 
sessions  should  generally  be  limited  to  100days,but 
he  would  not  insert  an  absolute  prohibition  to  far- 
ther session  if  it  was  found  necessary.  The  sec. 
tion  was  right  as  it  stood. 

Mr.  PERKINS  continued  the  debate  in   op 


duty  to  do  what  he  could  to  prevent  its  adoption. 
Mr.  MORRIS  was  opposed  to  long  sessions  of 
the  legislature,  and  was  also  desirous  that  gen- 
tlemen engaged  in  the  discharge  of  public  bust- 
ness  should  receive  a  fair  and  proper  compensa- 
tion. He  had  desired  to  shorten  the  session, 
therefore,  in  a  manner  which  would  not  cast  an 
imputation  upon  the  integrity  of  the  legislature, 
and  had  voted  for  a  session  of  ninety  days  with 
full  pay,  and  after  for  the  restoration  of  the  pro- 
vision of  the  old  Constitution.  But  he  (Mr.  M.) 
would  not  limit  the  session  in  the  case  of  a  trial 
for  impeachment. 


A  VOICE  :    Suppose  they 
ernor  every  year  ? 


impeach  the  Gov- 


^  po- 
sition to  any  attempt  to  limit  the  sessions.  'Let 
this  section  stand  as  it  does,  and  every  Legisla- 
ture when  it  adjourned,  would  do  so  blackballed 
by  this  Constitution  and  by  the  effects  of  dema- 
gogues to  make  the  people  believe  that  the  legis- 
lature adjourned  only  because  its  pay  was  stop- 
ped. He  did  not  believe  our  legislation  could  be 
decreased.  It  was  said  that  we  intend  to  confer 
more  power  upon  the  boards  of  supervisors.  He 
did  not  say  this  could  not  be  done,  but  his  utmost 
ingenuity  could  not  devise  a  plan  by  which  it 
could  be  done.  Short  sessions  instead  of  check- 
ing improvident  legislation  would  vastly  increase 
it.  Those  who  had  legislative  experience  would 
concur  with  him  in  saying  that  the  business  of 
the  session  hath  rather  than  passing  bills,  is  to 
fight  the  bad  and  improvident  bills  that  arebrought 
in.  Adopt  this  provision,  and  any  man  who  attemp- 
ted to  fight  a  bad  bill  would  be  charged  with  at- 
tempting to  retard  the  business  of  legislation. — 
The  result  would  be  that  many  more  of  them 
•would  be  passed  than  is  the  case  now.  This  sec- 
tion in  his  opinion  contained  the  most  pernicious 
destructive  and  deleterious  proposition  which 
could  be  submitted,  and  he  had  felt  it  to  be  his 


Mr.  MORRIS  :  If  the  legislature  is-  to  be  so 
corrupt  as  that,  let  us  then  in  God's  name  abolish 
the  legislature.  If  that  is  so,  and  the  legislature 
is  to  be  composed  of  men  who  would  impeach 
the  Governor  for  the  sake  of  getting  three  dollars 
a  day,  it  would  be  far  better. 

Mi.  WORDEN:  The  question  is  as  broad  one 
way  as  the  other.  If  the  Legislature  is  so  corrupt 
as  to  stay  here  when  they  have  nothing  to  do,  they 
will  be  corrupt  enough  to  impeach  the  Goveinor 
lor  the  same  purpose. 

Mr.  MORRIS  did  not  believe  that  under  the 
single  district  system,  from  the  knowledge  the 
people  would  then  have  of  the  men  who  were  to 
be  elected,  that  any  such  apprehension  should  be 
entertained.  The  amendment  to  limit  the  num- 
ber of  of  days  having  been  voted  down,  he  should 
vote  for  the  next  best  proposition.  He  wished, 
however,  to  offer  an  amendment  to  except  the 
sessions  from  any  limitation  when  the  legislature 
should  be  engaged  in  proceedings  for  impeach- 
ment. 

After  some  conversation,  Mr.  WORDEN  here 
withdrew  his  amendment. 

Mr.  DODD  said  this  question  had  been  elabo- 
ately  discussed  in  committee  of  the  whole,  and 
now  another  day  had  been  wasted  in  debate  on 
he  same  points.  Believing  no  good  would  result 
rom  farther  discussion,  he  would  move  the  pre- 
'ious  question. 

t  The  previous  question  was  seconded — ayes  49, 
nays  19.  The  main  question  ordered,  and  IVlr. 
MORRIS'  amendment  adopted — ayes  44,  nays  '3G. 
Mr.  RUSSELL  called  for  the  ayes  and  nays  on 
the  section  as  amended,  and  they  were  ordered. 
The  section  was  adopted,  ayes  68,  nays  35,  as 
follows : 

AYES— Messrs.  Ayrault,  F.  F.  Backus,  H.  Backus,  Bray- 
ton,  Bruce,  Bull,  Burr,  Cambreleng,  D.  D.  Campbell,  R. 
Campbell,  jr.,  Candee,  Clark,  Clyde,  Cook,  Cuddeback, 
Dana,  Danforth,  Dodd,  Dorlon,  Dubois,  Gardner,  Harri- 
son, Hotchkiss,  Hunter,  A.  Huntington,  E.  Hunting- 
ton,  Hutchinson,  Hyde,  Kernan,  Kingsley,  McNeil,  JVic- 
Nitt,  Maxwell,  Miller,  Morris,  Nellis,  Nicholas,  Nicoll, 
Powers,  Richmond,  Riker,  Ruggles,  Russell,  St.  John, 
Salisbury,  Shaw,  Sheldon,  Simmons,  E.  Spencer,  Stanton, 
Stetson,  Strong,  Swackhamer,  Taft,  Taggart,  Tallmadge, 
J  J.Taylor.  W.  Taylor,  Townsend,  "W'ateibury,  White, 
Willard,  Wood,  W.  B?Wright,  Yawger,  Young,  Youngs 
—68. 

NOES— Messrs.  Bascom,  Bouck,  Brown,  Brundage, 
Chambnrlain,  Chatfield,  Conely,  Cornell,  Crooker,  Flan- 
ders, Gebhard,  Hart,  Hunt.  Jones,  Jordan,  Kemble,  Kenne- 
dy Kirkland,  Loomis,  Marvin,  Murphy,  O'Conor,  Parish, 
Patterson,  Perkins,  President,  Rhoades,  Sears,  Shepard, 
Smith,  Stow,  Tuthill,  Van  Schoonhoven,  Warren,  Wor- 
den-35. 

Mr.  CROOKER  laid  on  the  table  a  motion  to 
reconsider  the  vote. 


477 


Mr.  SWACKHAMER  also  laid  on  the  table  a 
motion  to  reconsider  the  vote  on  his  amendment. 
The  10th  section  was  then  read. 
Mr.  WHITE  moved   to  amend  by  striking  out 
"  or  to  the  Senate  of  the  U.  S." — (the   effect  of 
which  would  be  to  leave  members  of  the  legisla- 
ture eligible  to  the  U.  S.  Senate.) 

The  amendment  was  negatived,  ayes  19,  noes 
85,  as  follows: 

AYF.S— Messrs.  Bascom,  Bergen,  Brown.  Candee,  Gard- 
ner, Hunt,  Hunter,  Kemble,  Marvin,  Murphy,  Nicoll,  O' 
Conor,  Russell,  Simmons,  Smith,  Stow,  Taggart,  Vache, 
White— 19. 

NAYS— Messrs.  Ayrault,  F.  F.  Backus,  H.  Backus,  Ba- 
ker, Bouck,  Brayton,  Bruce,  Brundage,  Burr.  Cambre- 
leng,  D.  D  Campbell.  R.  Campbell,  jr.,  Chamberlain,  Chat- 
fielil,  Clark,  Clyd<j.  Concly,  Cook,  Cornell,  Crooker,  Cud- 
deback,  Dana,  Danforth,  Dodd,  Dubois,  Flanders,  Geb- 
hard,  Harris,  Harrison,  Hart,  Hotchkiss,  A.  Huntington, 
E  Huntington,  Hutchinson,  Hyde,  Jones,  Jordan,  Kenne- 
dy, Kernan,  Kingsley,  Kirkland  Loomis,  McNeil,  McNitt, 
Maxwell.  Miller,  Morris,  Nellis,  Nicholas,  Parish,  Patter 
son,  Perkins,  Powers,  President,  Richmond,  Kiker,  Rug- 

tles,  St.  John,  Salisbury,   Shaw,     Sheldon,   Shepard  E. 
pencer,   Stanton,  Stephens,  Stetson,  W.  Taylor,  Town- 
send,  Tuthill,  Van   Schoonhoven,   Warren,   Waterbury, 
Willard,  Wood,  Worden,  Yawger,  Young,  Youngs— 85. 

The  tenth  section  was  then  adopted. 

The  eleventh  section  was  then  read. 

Mr.  SIMMONS  moved  to  amend  by  striking  out 
"judicial,"  in  the  2nd  line,  and  inserting  "  civil" 
— so  that  it  should  read  : — "  No  person  being  a 
member  of  Congress  or  holding  any  judicial  or 
military  office  under  the  U.  S.,  shall  hold  a  seat 
in  the  legislature."  He  desired  to  make  it  con- 
form to  the  latter  clause  of  the  section  which  read 
thus  :— 

"  And  if  any  person  shall,  after  his  election  as  a  member 
of  th«  legislature,  t:e  elected  to  Congress,  or  appointed  to 
any  office  c.vil  or  military,  under  the  government  of  the 
United  States,  his  acceptance  thereof  shall  vacate  his  seat." 

Mr.  RUSSELL  said  that  would  exclude  post- 
masters from  being  members  of  the  legislature. 

Mr.  SIMMONS  was  aware  ot  that. 

Mr.  CONELY  moved  lo  amend  so  as  to  except 
postmasters.  This  was  rejected. 

Mr.  SIMMONS'  amendment  after  a  brief  debate 
was  rejected. 

Mr.  BASCOM  moved  to  strike  out  the  words 
"  No  person  being  a  member  of  Congress,  or 
holding  any  judicial  or  military  office  under  the 
United  States,  shall  hold  a  seat  in  the  Legisla- 
ture." Mr.  B.  said  that  the  people  might  desire 
to  select  some  such  individual.  They  had  done 
so  in  this  Convention,  in  the  case  of  a  gentleman 
from  Otsego. 

Mr.  CHATFIELD  said  that  was  an  illustrious 
instance  in  favor  of  the  section  as  it  stood.  That 
gentleman  had  been  here  but  seven  days  of  the 
whole  session. 

Mr.  BASCOMS'  amendment  was  rejected. 

The  section  was  then  agreed  to. 

The  12th  section  was  then  read. 

Mr.  SMITH  moved  to  amend  the  twelfth  sec- 
tion, so  as  to  provide  that  the  first  election  under 
this  constitution  for  members  of  the  legislature 
be  held  in  October  instead  of  November.  This 
was  rejected. 

Section  fifteen  was  then  agreed  to. 

Mr.  O'CONOR  moved  to  reconsider  the  vote 
on  the  fifth  section,  with  a  view  to  amend  that 
part  of  it  relating  to  Senate  districts  in  New  York, 
so  as  to  make  it  conform  in  regard  to  the  word 


"  compact"  with  the  clause  relating  to  other 
parts  of  the  state.  Laid  on  the  table. 

Mr.  SMITH  moved  a  reconsideration  of  the 
vote  in  regard  to  the  Chenango  district.  Laid  on 
the  table. 

Mr.  WORDEN  made  some  enquiries  with  a 
view  to  ascertain  the  meaning  intended  by  the 
last  clause  of  the  fifteenth  section — arid  whether 
the  intention  was  that  the  legislative  term  com- 
menced on  the  first  of  January,  or  on  the  day  of 
the  meeting  of  the  legislature.  He  made  no  mo- 
tion, but  desired  to  call  attention  to  it. 

Mr.  STETSON  said  that  he  had  prepared  an 
amendment  to  the  seventh  section,  in  relation  to 
unrepresented  fractions,  but  as  the  hour  was  late, 
he  would  waive  it  for  an  adjournment. 

The  Convention  then  took  a  recess  until  4  P.  M. 

AFTERNOON  SESSION. 

Some  debate  was  had  on  a  motion  of  Mr.  BAS- 
COM to  suspend  the  rules,  to  leconsider  the  vole 
accepting  the  invitation  of  Capts.  Triger  and 
Frisbee,  to  be  present  at  the  departure  ot  the  Cali- 
fornia volunteers,  but  without  taking  any  question 
the  discussion  was  dropped  to  consider  the  tullow- 
ing  proposition,  by 

Mr.  STETSON,  who  wished  to  add  this  as  a 
new  section  to  the  report  of  committee  No.  1 : 

The  first  part  of  section  seven  shall  be  construed  so  that 
members  of  the  Assembly  shall  be  apportioned  as  follows: 
The  aggregate  representative  population  of  the  State  shall 
be  divided  by  one  hundred  and  twenty -eight,  and  the  quo- 
tient shall  be  a  ratio  upon  which  one  member  shall  be  ap- 
portioned to  each  county  of  the  State  ;  but  the  residue  of 
the  members  after  that,  shall  be  apportioned  so  that  the 
fraction  ol  a  smaller  county  shall  always  be  entitled  to  a 
member  in  preference  to  the  numtier  equal  to  the  first  ra- 
tio in  a  larger  county,  whenever  the  fraction  of  the  small- 
er county  is  larger  in  proportion  to  its  whole  representa- 
tive population,  than  the  fraction  of  the  largtr  county- 
would  be  to  its  whole  representative  population,  il  the 
whole  number  of  the  remainder  of  members  were  conti- 
nued to  be  apportioned  according  to  said  first  ratio. 

Mr.  WORDEN  askfd  the  gentleman  from  Clin- 
ton (Mr.  STETSON)  if  he  meant  that  his  own 
county,  Clinton,  tor  example,  was  to  he  in-ode  to 
compare  with  New  York  county  ;  Clinton  having 
but  1  member,  and  nearly  10,000  fractional  repre- 
sentative  population  was  to  have  another  member 
in  preference  to  New  York  having  15  members, 
and  then  a  16th  member  on  a  fraction  of  only  10,- 
000— this  being  not  700  fraction  to  a  member  ? 

Mr.  STETSON  satd  this  would  be  the  result  of 
the  operation,  or  very  nearly  so.  At  any  rate,  the 
arrangement  would  be  more  just  than  the  present 
system.  The  counties  in  (he  interior  have  50  per 
cent  fractions,  or  two-thirds  of  the  fractions  over 
the  ratio  on  which  they  are  entitled  to  one 
member;  and  those  two.thirds  over  the  one 
member  go  unrepresented ;  whilst  New  York 
has  15  members  on  lull  ratios,  and  a  IGih  mem- 
ber on  a  small  fractional.  Great  injustice  was 
thus  done  to  the  country  towns.  An  apportion- 
ment was  made  on  a  sort  of  compound  proposition 
— all  the  past  apportionment  seen  s  to  have  been 
based  on  this,  thi«t  county  lines  are  not  to  be  di- 
vided. The  traction  therefore!  musr  fall  some- 
ah^re.  And  on  the  principle  that  we  are  not  to 
disturb  county  lines,  'the  greater  number  ot  rep- 
resentatives in  the  large  counties  have  the  fewest 
numbers  of  fractional  representation.  He  wanted 
the  country  to  have  the  benefit  of  this  accumula- 
tion of  fractions,  which  is  now  monopolized  by 


478 


the  city  ot  New  York.  He  would  have  the  1st 
part  of  section  seven  to  read  according;  to  his  plan. 
They  would  thus  far  be  following  out  the  plan 
properly  adopted  by  every  .Legislative  body  here- 
tofore. Thus,  Warren,  Franklin  and  other  coun- 
ties, having  but  one  member  each  and  also  having 
a  large  unrepresented  fraction  in  each  county 
would  be  then  represented.  A  number  would 
thus  be  taken  out  of  the  whole  number  of  the  po- 
pulation, and  we  should  get  the  balance  of  the 
ratio  for  the  other  disposition.  At  present  a 
county  has  but  one  member  with  a  large  unrepre- 
sented fraction ;  that  county  is  to  stand  thus 
whilst  New-York  city  is  to  be  left  without  any 
fraction,  but  to  have  one  more  than  she  is  entitled 
to.  This  must  be  remedied.  That  is  the  idea  ; 
there  is  no  mistake  about  it,  and  the  future  wel- 
fare of  the  whole  state  depends  on  the  adoption 
of  this  amendment.  It  is  important  in  itself — it 
is  important  in  another  point  of  view;  that  of  pre- 
venting future  evils,  and  doing  justice  present, 
and  prospectively.  He  felt  no  jealousy  towards 
New- York  city;  but  it  was  too  true  that  her  in- 
creasing population  is  rapidly  absorbing  tl.» 
whole  representative  population  of  the  state. — 
The  effect  of  his  amendment  will  be  to  increase 
the  strength  of  those  counties  that  have 
but  one  member ;  to  do  the  same  with  those 
that  have  but  two;  and  to  strengthen  those 
that  had  three  members.  In  1S21,  she  had  but 
ten  members — this  New  York  city,  and  she 
comes  in  this  day  of  our  Lord  with  no  less  than 
16  of  them  on  this  floor,  and  as  time  rolls  on  at 
this  rate,  if  she  increases  in  this  way,  she  will 
have  a  majority  of  all  the  members  on  this  floor, 
and  no  mistake  at  all  about  it.  The  country  will 
be  swallowed  up  in  the  town ;  and  then  we  shall 
see  the  evils  depicted  by  the  poet — 
"  111  fares  the  land  to  hastening  ills  a  prey 
Where  wealth  accumulates  and  men  decay; 
Princes  and  lords  may  nourish,  or  may  fad«, 
A  breath  can  make  them  as  a  breath  has  made; 
But  a  bold  peasantry,  their  country's  pride, 
When  once  destroyed,  can  never  be  supplied. 

And  he  (Mr.  STETSON)  insisted  that  the  truth  ot 
this  beautiful  sentiment  was  clearly  elucidated 
as  between  New  York  city  and  the  other  portions 
of  the  State.  And  he  considered  that  for  the  sake 
of  justice,  and  for  the  equalization  of  representa- 
tion, his  amendment  ought  to  prevail.  He  might 
fail  now,  because  he  had  all  N.  York  city  against 
him  ;  but  20  years  hence,  it  would  be  a  matter  ol 
wonder  that  no  one  had  stood  up  here  to  defend 
the  interests  of  the  country  towns  arid  villages, 
&e.,  in  this  country.  And  he  (Mr.  S  )  would 
'rather  have  his  present  position,  and  fail,  by  being 
crowded  down,  than  sit  down  and  not  protest 
against  the  injustice.  It  ought  to  be  done  now, 
lor  in  halt  a  century  the  matter  would  bri  gone 
beyond  redress  or  hop:1. 

Mr.  JONES  sympathised  with  his  honorable 
friend  from  Clinton,  relative  to  his  unfortunate 
position. 

Mr.  SIMMONS:  You  need  not  crow  ;  the  time 
has  not  come  for  that,  yet. 

Mr.  STETSON  said  the  appropriation  was  bet- 
ter now  for  his  county  than  for  many  others.  Bu 
it  was  not  sympathy  he  asked.  He  demanded  it — 
and  they  would  have  it,  next  census — as  a  right 

Mr.  JONES  would  nevertheless  extend  his 
sympathy  to  the  gentleman  Clinton  was  nodoub 


unfortunate;  but  perhaps  upon  the  next  census, 
ier  fraction  would  be  large  enough  to  secure  her 
another  member. 

Mr.  STETSON:  That  takes  off  the  point  of  the 
yrnpathy,  and  is  going  on  another  tack  altogether. 
We  want  to  correct  the  injustice  right  away. 

Mr.  JONES  hoped  the  gentleman's  anticipa- 
ions  would  be  realized — and  went  on  to  say  that 
listened  to  the  gentleman's  speech  attentively, 
rlis  argument  was  exceedingly  poetic,  and  it  was 
also  sublimely  impressive  ;  but  unfortunately  he 
lad  not  been  able  to  understand  it.  He  could  not 
say  of  the  gentleman's  statistics,  what  had  been 
said  of  statistics  in  general,  that  they  were  after 
ill  nothing  but  fictions  told  in  numerals,  for  it 
would  not  be  decorous  to  say  so.  But  he  certain- 
y  could  not  entirely  and  clearly  understand  all 
;he  force  of  his  statements.  But  it  was  a  suffi- 
cient answer  to  them  to  say  that  if  New-York  had 
one  eighth  of  the  representation  in  the  Assembly, 
he  had  also  one  eighth  of  the  representative  pop- 
ulation qf  the  State.  And  whilst  this  is  the  case 
:here  surely  is  no  injustice.  New- York  city  thus 
las  no  more  members  than  she  is  entitled  to. 

Mr.  WORDEN  remarked  that  there  were  none 
so  blind  as  those  who  would  not  see — and  went 
on  to  explain  his  idea  of  the  operation  of  the  rule. 
N"ew.  York  city  has  not  now  got  one-eighth  of  the 
representative  population  of  the  State,  although 
she  claims  one-eight  of  the  128  members.  Take 
a  county  with  64,000  inhabitants  ;  that  county 
would  have  3  members  and  a  fraction  of  10,000; 
or  a  county  with  27,000  ;  she  would  have  1  mem- 
ber and  a  fraction  of  9000  ;  for  the  ratio  is  18,000. 
But  N.  Y.  county  has  15  members  for  her  230,000 
and  a  member  for  her  small  fraction  over  that 
number ;  here  your  rule  gives  you  a  member  for 
every  16,000;  whilst  a  county  having  27,000  has 
but  1  member  ;  if  you  give  a  county  with  64,000, 
three  members,  there  is  a  fraction  of  only  about 
3,300  to  each  member;  Wyoming  has  but  1  mem- 
ber, and  a  fraction  of  14,000  unrepresented ;  N.  Y. 
has  15  members  and  a  member  for  her  fraction  of 
12,000.  All  this  is  decidedly  unjust.  N.  Y.  city 
has  a  member  to  represent  a  fraction  of  12,000  ; 
and  Wyoming  and  Clinton  have  14,000,  and  9000 
— a  total  of  23,000  not  represented  at  all.  And 
so  in  many  other  counties. 

Mr.  BROWN  was  satisfied  the  proposition  de- 
served all  consideration — but  it  was  a  complicated 
one,  and  ought  to  be  printed  before  being  acted 
on.  He  suggested  that  it  be  postponed  until  to- 
morrow and  printed. 

The  section  was  ordered  to  be  printed. 

Mr.  W.  TAYLOR  offered  the  following  addi- 
tional section — which  he  said  was  a  section  of  the 
old  Constitution,  with  the  words  "and  legislative 
term"  added — to  prevent  any  misconstruction  of 
the  political  year : 

tv  16.  The  political  year  and  legislative  term  shall  begin 
on  the  first  day  of  January;  and  the  Legislature  shall  ev- 
ery year  assemble  on  the  hrst  Tuesday  in  January,  un- 
less a  different  day  shall  be  appointed  by  law. 

Mr.  CROOKER  moved  to  strike  out  "unless  a 
different  day  shall  be  appointed  by  law."  Better 
have  it  fixed,  than  fluctuating. 

Mr.  SHEPARD  suggested  that  some  pestilence 
might  make  it  necessary  to  change  the  place  and 
tune  of  holding  the  legislature. 


479 


CROOKER  did  not  see  how  the  legislature 
would  foresee  when  the  pestilence  was  to  come. 

Mr.  CROCKER'S  motion  was  lost,  and  Mr. 
TAYOK'Ssti.-ti'.ii  ;d  >j>ted. 

;\!r.  W.TAYLOR  I  hen  moved  that  the  article  as 
perfected,  be  printed — which  was  agreed  to. 

The  following  is  the  article  in  relation  to  the 
Apportionment  of  the  Legislature,  as  finally 
adopted : 

ARTICLE 

SECTION  1.  The  Legislative  power  oi'this  State  shall  be 
vested  in  a  Senate  and  Assembly. 

{)  -2.  The  Senate  shall  consist  of  thirty-two  members,  and 
the  Senators  shall  be  chosen  for  two  years.  The  Assem- 
bly snail  consist  of  one  hundred  and  twenty-eight  mem. 
bers,  who  shall  be  annually  elected. 

Substitute  the  /blowing  for  section  five: 

fc  5.  The  State  shall  be  divide  1  into  thirty  two  districts, 
to  be  called  Senate  districts,  each  ot'wnich  shall  choose 
one  senator.  The  districts  shall  be  numbered  Irom  one  to 
thirty- two  inclusive. 

District  No.  1  shall  consist  of  the  counties  of  Richmond, 
Suffolk  and  Queens. 

District  No.  -2  si;  all  consist  of  the  county  of  Kings. 

Districts  Nos.  3,  4,  5  and  6'.  shall  consist  of  the  city  and 
county  of  New  York;  and  the  board  of  supervisors  of  said 
city  and  county  shall,  on  or  before  the  first  day  of  May, 
1847,  divide  the-  city  and  county  into  the  number  of  Senate 
districts  to  which  u  js  entitled' as  near  as  may  be  of  an 
equal  number  of  inhabitants,  of  contiguous  territory  and 
oi  compact  form.  The  board  of  supervisors  when  they 
shall  have  completed  such  division,  shall  cause  certificates 
thereof,  stating  the  number  and  boundaries  of  each  dis- 
trict and  the  population  thereof,  to  be  filed  in  the  office  of 
me  Secretary  ol  State  and  of  the  clerk  of  said  city  and 
county. 

District  No.  7  shall  consist  of  the  counties  of  Westches- 
ter,  Putnam  and  Rockland. 

l)i-trict  No.  8  shall  consist  of  the  counties  ofDutchess 
and  Columbia. 

Distilct  No. '.'  shall  consist  of  the  counties  of  Orange  and 
Sullivan. 

District  No.  10  -Lall  consist  of  the  counties  of  Ulster  and 
Greene. 

District  No.  11  shall  consist  of  the  counties  of  Albany 
and  Schenectady. 

Distri.-t  AO.  1-2  shall  consist  ol  the  county  of  Remselaer. 

D.sinct  No.  13  shall  consist  of  the  counties  of  Washing- 
ton am!  Saratoga. 

ict  No.  14  shall  consist  of  the  counties  of  Warren, 
•  IK!  Clinton. 

District  No.  15  shall  consist  of  the  counties  of  St.  Law. 
rem-e  and  Franklin. 

District  No.  16  shall  consist  of  the  counties  of  Herki- 
m.  r,  Hamilton,  Ful-on  an  t  Montgomery. 

District  No  17  sliall  consist  oi  the  counties  oC  Schoharie 
end  pti 

District  N'o.  18  shall  consist  of  the  counties  of  Delaware 

llJll^O. 

District  No.  19  shall  consist  of  the  county  of  Oneida. 

Dis  in  t  No.  20  shall  consist  ot  the  couatits  of  Madison 
and  Oswfpo. 

District  No.  21  shall  consist  of  the  counties  of  Jeflerson 
and  Lewis. 

Disti  let  No.  2-2  shall  consist  of  the  county  of  Ononda?a. 

District  No.  23  shall  cousin  ol  the  counties  of  Cortiand, 
Btoome  an.l  Tioga 

net  No.  24bkall  consist  of  the  counties  of Cayuea 
and  \V 

District  No.  25  shall  consist  of  the  counties  of  Tompkins 
i  ate.-. 

iMsinct  No.  *6  shall  consist  of  the  counties  of  Steuben 
mii.ig. 

District  No.  v?  sliall  consist  of  the  county  of  Monroe. 

Di-tnct  No.  28  shall  consist  of  the  counties  of  Orleans. 
Geneaeu  and  Niagaia. 

Distri.-t  No  29  shall  consist  of  the  ceunties  of  Ontario 
aud  Livingston. 

Di-tnct  .so.  30  shall  consist  of  the  counties  of  Allegany 
aud  Wyoming. 

l)i-tnct  No'3l  shall  consist  of  the  county  of  Erie. 

District  No.  32  -h,,ll  consist  of  the  counties  of  Chautau- 
que  and  Cattaraugus. 

^  6.  An  enumeration  of  the  inhabitants  of  the  state  shall 
be  taken  under  the  direction  of  the  legislature  in  the  year 


one  thousand  eight  hundred  and  fifty-five,  and  at  the  end 
of  every  ten  years  thereafter;  and  tfie  said  districts  shall 
be  so  altered  by  the  legislature  at  the  tirst  session  alter  the 
return  of  every  enuineration.that  each  senate  district  shall 
contain,  as  nearly  may  be,  an  equal  number  of  inhabitants, 
excluding  aliens,  and  persons  ot  color  not  taxed;  and  .shall 
remain  unaltered  until  the  return  of  another  enumeration, 
and  shall  at  all  limes  consist  ot  contiguous  territory, 
and  no  county  shall  be  divided  in  the  loimation  of  a  senate 
district,  except  such  count}'  .shall  be  equitably  entitled  to 
two  or  more  senators 

§  7.  The  members  of  the  assembly  shall  be  apportioned 
among  the  several  counties  of  this  state,  by  the  legislature, 
as  nearly  as  may  be,  according  to  the  number  of  their  re- 
spective inhabitants,  excluding  aliens,  and  persons  of  co- 
lor not  taxed,  and  shall  be  chosen  by  single  districts. 

The  several  boards  of  supervisors  in  such  counties  of 
this  state,  as  are  now  entitled  to  more  than  i.ne  number  of 
assembly,  shall  assemble  on  the  first  Tuesday  of  January 
next,  arid  divide  their  respective  counties  into  assembly 
districts  equal  to  the  number  of  mem  hers  of  assembly  to 
which  such  counties  are  now  severally  entitled  bylaw, 
and  shall  cause  to  be  filed  in  the  offices  of  the  Secretary  of 
State  and  the  clerk  of  their  respective  counties,  a  descrip- 
tion of  such  assembly  districts,  specifying  the  number  of 
each  district  and  the  population  thereof,  according  to  the 
last  state  enumeration,  as  near  as  can  be  ascertained. 
Each  assembly  district  shall  contain  as  nearly  as  may  be, 
an  equal  number  of  inhabitants,  excluding  aliens  and  per- 
sons of  color  not  taxed,  and  shall  consist  ot  contiguous  and 
convenient  territory,  but  no  town  shall  be  divided  in  the 
formation  of  assembly  districts. 

§  S.  The  legislature,  at  its  first  session  after  the  return 
of  every  enumeration,  shall  re-apportion  the  members  of 
Assembly  among  the  several  counties  of  this  State,  in 
manner  aforesaid,  and  the  boards  of  Supervisors  in  such 
counties  as  may  be  entitled,  under  such  re-apportionment, 
to  more  than  one  member,  shall  assemble  Ht  such  time  as 
the  legislature  making  such  re-apportionment  shall  pre- 
scribe, and  divide  such  counties  into  Assembly  districts 
in  the  manner  herein  directed,  and  the  apportionment  and 
districts  so  to  be  made  shall  remain  unaltered  until  an- 
other enumeration  shall  be  taken  under  the  provisions  of 
the  preceding  section 

Every  county  heretofore  established  and  separately  or- 
ganized, except  the  county  of  Hamilton,  shall  always  be 
entitled  to  one  member  ol  Assembly,  and  no  new  county 
shall  hereafter  be  erected,  unless  its  population  shall  en- 
title it  to  a  member.  The  county  o!  Hamilton  shall  elect 
with  Fulton,  until  the  population  of  HamiLon  shall,  ac- 
cording to  the  ratio,  be  entitled  to  a  member. 

§9.  The  members  of  the  legisiatuie  shall  receive  for 
their  services  a  sum  not  exceeding  three  dollars  a  day 
from  the  commencement  of  the  session;  but  such  pay  shall 
not  exceed  in  the  aggregate  three  hundred  dollars  lor  per 
diem  allowance,  except  in  cases  of  impeachment.  The  li- 
mitation as  to  the  aggregate  compensation  shall  not  take 
effect  until  1S4S.  When  convcn. -d  in  extra  se-sion  by  the 
Governor,  they  shall  receive  $3  per  day.  They  shall  also 
receive  the  sum  of  one  dollar  for  every  ten  miles  they 
shall  travel,  in  going  to  and  returning  from  their  places  of 
meeting  on  the  most  usual  route.  The  Speaker  of  the  As- 
sembly shall,  in  virtue  of  his  office,  receive  an  additional 
compensation  equal  to  one-third  of  his  per  diem  as  a  mem- 
ber. 

§  10.  No  member  of  tho  legislature  shnll  receive  any  ci- 
vii  appointment  within  this  state,  or  to  the  Senate  of  the 
United  States  from  ihe  Governor,  the  Governor  and  Senate 
or  from  the  Legislature,  during  the  term  for  which,  ho 
shall  have  been  elected. 

^11  No  person,  being  a  member  of  congress,  or  holding 
any  judicial  or  military  office  under  the  United  States,  shall 
hold  a  seat  in  the  Legislature.  And  if  any  person  shall, 
after  his  election  as  a  member  of  the  I  egislaturc,  be  elect 
C'.i  to  Con.ress,  or  appointed  to  any  oiiice,  civil  or  milita 
ry,  under  the  government  of  the  United  .States,  his  accep 
taiu-e  thereof  shall  vacate  his  seat. 

Substitute  lor  s  ctions  15  and  16,  so  far  as  re- 
laies  (o  senators  and  members  ot  Assembly,  tin; 
follow  ing :  — 

§15.  ']  he  first  election  of  Senators  and  members  of  As- 
sembly, pursuant  to  the  provisions  of  this  Constitution 
shall  be  held  on  the  Tuesday  succeeding  the  first  Monday 
of  November,  one  thousand  eight  hundred  and  forty -seven; 
and  all  subsequent  elections  shall  be  held  on  the  Tuesday 
succeeding  the  first  Monday  of  November  in  each  year, 
unless  otherwise  directed  by  the  Legislature.  The  Sena- 


480 


tors  and  members  ot  the  Assembly  who  may  be  in  office  on 
the  first  day  of  January,  one  thousand  eight  hundred  and 
forty-seven,  shall  hold  their  offices  until  the  thirty-first 
day  of  December  following,  and  no  longer. 

^  16  The  polincal  year  and  legislative  term  shall  begin 
on  the  first  day  of  January;  and  the  legislature  shall  every 
year  assemble  on  tne  first  Tuesday  in  January,  unless  a 
difi'erent  day  shall  be  appointed  by  law. 

APPOINTMENT  OR  ELECTION  OF  STATE  OFFICERS 

On  motion  of  Mr.  W.  TAYLOR,  the  commit- 
tee of  the  whole,  Mr.  WOKDEN  in  the  chair, 
took  up  the  report  of  committee  No.  6  (Mr.  CHAT- 
FIELD'S,)  on  the  appointment  or  election  ot  all 
officers  whose  powers  and  duties  are  not  local,  &,:. 

The  first  section  was  read,  as  follows  : — 

^  Che  Secretary  of  State,  Comptroller,  Treasurer  and 
Attorney  General  snail  be  chosen  by  the  people  at  an  an- 
nual gc-iieral  election,  and  shall  hold  their  offices  for  two 
years.  The  Secretary  of  Slate  and  Comptroller  shall  re- 
ceive an  annual  salary  of  two  thousand  and  live  hundred 
dollars;  the  Treasurer  shall  receive  an  annual  salary  of 
one  thousand  five  hundred  dollars;  and  the  Attorney  Gen- 
eral shall  receive  an  annual  salary  ol  two  thousand  dol- 
lars; but  he  shall  not  receive  any  other  or  further  fees, 
perquisites  or  compensation  for  any  services  peiforined  by 
kirn  as  Attorney  General. 

Mr.  KENNEDY  moved  to  amend  as  follows: 

Strike  out  from  the  4th  line,  after  the  word  "  years,"  and 
insert  "  and  shall  receive  an  annual  salary,  to  be  prescri- 
bed by  law.  which  shall  not  be  aliered  duiing  their  respec- 
tive terms  of  office." 

Mr.  NICOLL  moved  to  amend  this  amendment 
oy  retaining  the  clause  ifter  "dollars,"  in  the  8th 
line,  restricting  them  from  receiving  fees  or  per- 
quisites. 

Mr.  KENNEDY  suggested  that  this  might  pre- 
vent  the  Attorney-General  from  receiving  his 
expenses,  while  travelling  on  official  duty. 

Mr.  NICOLL  withdrew  nis  amendment. 

Mi.  CHATFIELD  was  not  prepared  to  let  this 
go  i>v  default.  He  went  on  to  point  out  the  irnpor- 
lani  changes  proposed  in  the  report.  The  com- 
mittee proposed  first  to  give  the  election  of  these 
officers  to  the  people.  On  that  point  he  anticipa- 
ted little  if  any,  objection.  Next  they  proposed 
to  shorten  the  term  of  these  officers;  and  chit-fh 
with  a  view  that  they  might  come  in  and  go  out 
with  the  Executive — and  this  because  they  were 
to  ssonie  extent  cabinet  officers,  and  ii  ^as  due  to 
the  Executive  that  he  should  have  a  cabinet  who 
accorded  with  him  in  regard  to  measures,  that 
his  administration  might  be  harmonious.  The 
committee  also  thought  it  important  that  the  con- 
stituent body  should,  as  often  as  once  in  two  yeais 
have  an  opportunity  of  passing  upon  the  acts  ot 
these  officers.  Mr.  C. went  on  to  explain  and  define 
the  object  of  fixing  the  salaries  of  these  officers  in 
the  constitution — that  they  might  not  be  the  sub- 
ject of  change,  with  changes  of  party,  and  might 
not  be  a  matter  of  consideration  in  their  election. 
The  committee  had  fixed  them  at  the  present  sa. 
laries— believing  that  they  were  not  too  high.— 
As  to  the  Attorney  General,  the  committee  thought 
$20UO,  cutting  off  extra  compensation,  would  not 
be  too  high,  and  that  the  state  would  be  the  gainer 
at  i h;it.  Now  the  salary  was  $1000  together  with 
a  large  amount  ot  lees  and  perquisites,  much  of 
which  did  not  go  upon  the  Comptroller's  books. 
The  present  incumbent  had  received  somewhere 
in  the  neighborhood  of  $4000,  lo  which  would  be 
added  compensation  for  some  two  months  services 
recently  at  Auburn. 

Mr.  SIMMONS  thought  it  would  not  look  well , 


j  to  put  the  Governor's  salary  in  the  power  of  the 
legislature,  and  fix  those  of  his  cabinet  in  the 
constitution.  He  should  prefer  to  see  all  these 
salaries  left  to  the  legislature,  or  all  fixed  in  the 
Constitution. 

Mr.  RICHMOND  remarked  that  we  were  lay- 
ing the  foundation  for  a  large  number  of  offices, 
and  this  principle  seemed  thus  far  to  have  been 
settled,  that  if  we  left  these  salaries  to  be  fixed 
by  the  legislature  we  should  prohibit  any  change 
in  them  to  take  effect  upon  an  incumbent.  Sup- 
posing this  to  be  the  judgment  of  the  Convention 
— we  should  then  throw  upon  a  single  legislature 
the  power  and  duty  of  fixing  the  salaries  of  all 
your  judges,  state  officers,  clerks  of  courts,  &c. 
&c.  It  was  easy  to  see  what  a  lobby  this  would 
bring  to  bear  upon  the  legislature— and  how  ut- 
terly this  whole  matter  of  salaries  might  be  placed 
beyond  the  reach  of  the  people,  for  a  long  term 
of  years.  He  trusted  if  we  did  not  fix  salaries  in 
the  constitution,  we  should  at  least  place  them 
where  the  people  could  lay  their  hands  on  them, 
if  the  legislature,  under  the  influence  of  those  in- 
terested, should  give  too  high  salaries.  But  he 
hoped  we  should  fix  them  in  the  constitution ; 
and  he  warned  gentlemen  that  if  we  placed  these 
salaries  beyond  the  reach  of  the  people  for  along 
term,  that  they  never  would  receive  such  a  con- 
stitution. 

On  motion  of  Mr.  CHAMBERLAIN,  the  com- 
mittee rose  and  reported  progress,  and  the  Con- 
vention 

Adjourned  to  9  o'clock  to-morrow  morning. 

SATURDAY,  (51st  day,')  August  1. 
Prayer  by  the  Rev.  Mr.  McDoNouGH. 

STATE  OFFICERS. 

Mr.  PERKINS  presented  a  minority  report 
from  committee  No.  6.  He  said  the  report  ex- 
hibited his  own  views,  for  he  did  not  claim  that 
they  were  the  views  of  any  other  member  of  the 
committee,  though  in  some  particulars  others  of 
the  committee  agreed  wiih  him  in  some  of  his 
differences  from  the  report  of  the  majority.  He 
read  the  report  as  lollops: — 
ARTICLE  — . 

§  1.  An  Attorney  General  shall  be  elected  at  the  times 
and  places  of  choosing  the  Governor,  and  shall  hold  his 
office  lor  the  same  term. 

2.  The  Treasurer  shall  be  appointed  annually,  on  the 
first  Tuesday  in  February,  by  the  open  viva  c»ce  vote  of 
the  Legislature,  and  by  a  majority  of  all  the  •*  wies  cast. 

$3.  There  shall  be  elected,  oy  plurality  of  votes,  ac  the 
times  and  places  of  choosing  Members  ot  Assembly,  a  Se- 
cretary of  ^tate,  a  Comptroller^  State  Engineer  and  Sur. 
veyor,  tnree  Canal  Commissioners,  and  three  Inspectors 
of  State  Prisons.  Under  their  first  election,  they  shall  re- 
spectively hold  their  offices  for  the  term  prescribed  in 
the  next  section  of  this  article,  and  thertaiter  for  three 
years  respectively. 

()  4.  Ol  the  officers  first  elected  under  the  preceding  sec- 
ion,  the  State  Engineer  and  Surveyor  shall  hold  his  office 
or  one  year,  the  Comptroller  for  two  years,  and  the  Sec- 
retary of  State  for  three  years.  The  Canal  Commissioners 
and  Inspectors  of  State  Prisons  having  the  greatest  num- 
ser  of  votes  shall  hold  their  offices  for  three  years:  those 
laving  the  next  greatest  number  of  v.^tes  shall  hold  their 
offices  lor  two  years;  and  the  others  for  one  year.  In 
case  of  an  equalitv  in  the  number  of  votes  for  either  of  the 
offices  of  Commissioner  or  Inspector,  who  shall  be  first 
elected,  the  term  ot  their  office  shall  be  determined  by  lot. 

(j  5.  Incase  th  -re  shall  be  an  equality  in  the  number  of 
votes  for  any  officer  to  be  elected  under  this  article,  so 
hat  there  shall  be  no  choice;  or  in  case  ol  the  death,  re- 
_ignation,  removal  or  other  disability  of  either  of  the  offi- 
cers mentioned  in  the  third  section  of  this  article,  the  Le  - 


481 


gislature  shall.by  open  nomination  and  vote,  choose  a  per- 
son  to  perform  the  dutit*  of  the  office  for  'he  term,  or  re- 
sidue  oi  the  unexpired  term,  as  the  case  may  be. 

(56.  The  Lieut.  Governor,  Speaker  of  the  Assembly,  Se- 
cretary ot  Stat*-,  Comptroller,  Treasurer,  Attorney  Gene- 
ral, and  State  K.nginecr  and  Surveyor,  shall  be  the  Com 
mis^ione;  s  ol  the  Land  Office. 

The  Lieut.  Governor,  Secretary  of  State,  Comptroller, 
Treasurer  and  Attorney  General,  shall  be  the  Commis. 
tioners  of  the  Canal  Fund. 

The  Canal  Board  shall  consist  of  the  Commissioners  of 
the  Canal  Fund,  the  State  Engineer  and  Surveyor,  and 
the  Canal  Commissioners. 

§  7.  All  officers  the  manner  ofwwhose  appointment  is  not 
prescribed  liy  this  Constitution,  shall  be  chosen  or  ap. 
pointed  as  shall  be  pi  escribed  by  the  law  existing  at  the 
time  of  their  appointment. 

*>3.  Every  officer  having  a  stated  salary  shall  account 
for  and  pay  to  the  Treasurer  of  the  State  all  perquisites  ol 
office,  he  may  receive. 

^  9.  All  officers  having  salaries  (except  Judicial  officers) 
shall  at  stated  times  receive  for  their  services  a  com- 
pensation which  shall  not  be  increased  or  diminished  dur- 
ing the  term  for  which  they  shall  have  been  elected.  But 
thi>  shall  not  be  construed  to  prevent  the  passage  of  laws 
at  any  time  to  regulate  the  compensation  of  future  incum- 
bents oi  office. 

§  10.  All  provisions  of  law  authorizing  the  appointment 
of  Inspectors,  Weighers  and  Measurers  of  merchandize, 
(except  salt)  are  abrogated. 

BISHOP  PERKINS. 

Mr.  P.  said  the  principal  differences  were  that 
the  Secretary  of  State,  Comptroller,  State  Engin- 
eer and  surveyor,  were  by  him  proposed  to  be 
elected  for  three  years,  and  they  were  to  be  clas- 
sified so  that  one  of  them  would  be  elected  an- 
nually. The  report  ot  the  majority  proposed  to 
elect  them  for  two  year*,  and  all  go  out  at  once. 
His  report  also  proposed  to  give  to  these  officers  a 
salary  which  shall  not  be  altered  during  the  time 
for  which  th.-y  shall  be  elected  ;  but  the  legisla- 
ture may  prescribe  the  compensation  of  future  in- 
cumbents. These  were  the  principal  alterations, 
except  that  the  Treasurer  was  to  be  appointed 
annually  by  the  Legislature.  Having  made  some 
further  explanations  he  moved  that  the  report  be 
committed  to  the  committee  of  the  whole  having 
in  charge,  the  majority  report,  and  that  it  be 
printed 

Mr.  CHATFIELD  made  some  complaints 
which  were  not  distinctly  heard,  that  this  report 
should  be  brought  in  at  this  time.  He  doubted  il 
it  could  be  now  considered,  and  was  understood 
to  intimate  that  the  gentleman  from  St.  Lawrence 
had  been  wanting  in  respect  to  the  committee. 

Mr.  PERKINS  said  he  was  ever  unfortunate  in 
the  expression  of  his  difference  of  opinion  from 
the  chairman  of  the  committee.  Indeed,  it  seem- 
ed to  be  a  matter  of  great  disrespect  for  any  gen- 
tleman of  this  Convention  to  venture  to  diflei 
from  him  (Mr.  CHATFIELD.)  When  the  repor 
of  the  majority  was  agreed  to,  he  assented  to  the 
report  being  made,  though  voting  against  some  of 
its  provisions  in  committee;  and  he  had  nowfel 
it  to  be  his  duty  to  submit  his  views,  as  they  dif- 
fered from  the  majority.  At  an  early  day,  he  pro- 
posed,  by  resolution,  something  in  the  nature  o 
a  minority  report,  and  that  was  deemed  ex 
Ceedingly  disrespectful ;  and  he  received  a  lee 
ture  for  that  too.  There  was,  on  the  par 
of  the  chairman  of  the  committee,  a  strange  sen 
sitiveness,  which  he  could  not  understand.  I 
there  was  no  imputation  on  that  gentleman  or  hi: 
actions— if,  when  there  existed  a  mere  difference 
Of  opinion,  a  member  took  that  mode  of  bringing 
s  views  before  the  Convention— it  seemed  t< 

35 


iim  that,  for  a  member  to  get  up  and  complain  of 
laving  been  treated  with  disrespect,  showed  eith- 
r  a  jealousy  of  other  members,  or  a  dyspeptic  ner- 
ousness  which  could  not  endure  a  mere  difference 
f  opinion.  Mr.  P.  had  taken  the  course  which 
iis  judgment  dictated  to  be  the  proper  one  to 
iring  his  views  before  the  Convention.  He  had 
exercised  his  right,  which  he  was  not  at  liberty  to 
acrifice  to  any  jealousies,  and  while  he  remained 
a  member  of  a  committee  which  made  a  report  of 
,vhich  he  disapproved,  he  should  not  be  deterred 
rom  presenting  a  counter  report,  and  endeavor- 

ng  to  amend  the  one  £om  which  he  dissented. 

ie  might  perhaps  have  presented  this  report  at 
in  earlier  day;  although  after  the  manner  in  which 
he  gentleman  (Mr.  CHATFIELD)  received  any  in- 
dication of  a  difference  of  opinion  on  the  coin- 
ng  in  of  his  report,  he  had  finally  determined  to 
waive  any  further  expression  of  his  opinion,  un- 
"l  the  matter  was  under  the  consideration  of  the 
onvention. 

Mr.  CHATFIELD  hoped  the  gentleman  from 
St.  Lawrence  would  not  understand  him  as  say- 
ing that  there  had  been  any  disrespect  to  him  per- 
sonally. If  he  did  say  that,  he  had  said  what  he 
tiad  not  intended.  All  he  had  said  was  that  the 
committee  had  not  been  treated  with  the  respect 
to  which  they  were  entitled.  Mr.  C.  proceeded 
at  some  length  to  point  out  the  parliamentary 
course  wrhich  the  gentleman  from  St.  Lawrence 
should  have  pursued. 

Mr.  PERKINS  responded  and  showed  what 
course  had  been  taken  both  by  the  majority  and 
minority  of  the  committee  and  reiterated  the 
statement  of  his  conviction  that  the  offence  com- 
mitted was  in  daring  to  differ  from  the  chairman 
of  the  committee,  whose  great  sensitiveness  was 
otherwise  inexplicably  mysterious.  After  some 
other  observations  the  motion  to  print  and  refer 
was  carried. 

JUDICIAL  SYSTEM. 

Mr.  RUGGLES,  from  the  committee  on  the  ju- 
diciary, presented  a  report,  which  was  read  by  the 
.-ecretary,  asloliows: — 

Sec.  1.  The  Assembly  shall  have  the  power  of  impeach- 
ment by  a  vote  of  the  majority  of  all  the  members  elected. 
The  coun  lor  the  trial  ol  impeachments  shall  be  compos- 
ed of  the  president  ol  the  Senate,  the  Senators,  and  the 
judges  of  the  court  of  appeals— the  major  part  ol  whom 
may  hold  the  court.  On  the  trial  of  an  impeachment 
against  the  Governor,  the  Lieut.  Governor  shall  not  act 
as  amemher  ol  the  court.  No  judicial  officer  shall  exer- 
cise his  office  after  he  shall  hfive  been  imi^acheci,  until 
his  acquital.  Before  the  trial  of  an  impeachment  the 
members  ot  the  court  shall  take  an  oath  or  affirmation 
truly  and  impartially  to  try  the  impe achment  according  to 
evidence,  and  no  person  shall  be  convicted  without  the 
concurrence  of  two-thirds  of  the  members  present.  Judg- 
ment in  cases  of  impeachmer.t  shall  not  exttnd  further 
than  to  removal  from  office;  but  the  party  Convicted  shall 
be  liable  to  indictment  and  punishment  according  to  law. 

§  -1.  There  shall  be  a  court  of  appeals,  composed  of  eight 
juuges,  ot  whom  four  shall  be  elected  by  the  electors  of 
the  state  for  eight  yebrs,  and  four  selected  from  the  class 
ot  justices  cf  the  iupreme  court  having  the  shortest  time 
.to  serve.  Provision  shall  be  made  by  law  for  designating 
one  of  the  members  elected  as  chief  judge,  and  lor  selecf- 
ing  such  justices  ol  the  supreme  court  from  time  to  time 
and  so  classifying  those  elected  that  one  shall  be  elected 
every  second  year. 

§  3.  There  shall  be  a  supreme  court  having  the  same  ju- 
risdiction in  law  and  equity  which  the  supreme  court  and 
court  ot  chancery  now  have  subject  to  regulation  by  law 

§4.  The  state  shall  be  divided  into  eight  judicial  dis- 
tricts, of  which  the  city  of  New  York  shall  be  one— the 
others  to  be  bounded  by  county  lines,  and  be  compact  and 


482 


equal  in  population  as  nearly  as  may  be.  There  shall  be 
four  justices  of  the  supreme  court  for^ach  district,  and  as 
many  more  in  the  distiict  composed  of  the  city  of  New 
York  as  may  from  time  to  time  be  authorize  d  by  law,  but 
not  to  exceed  the  number  of  justices  in  the  other  districts  in 
proportioH  to  their  population.  They  shall  be  classified  so 
that  one  of  the  justices  oi  epch  district  shall  go  out  of  of- 
fice at  the  end  of  every  two  years.  After  the  expiration 
of  their  terms  under  such  classification,  the  term  of  their 
office  shall  be  eight  years. 

^  5.  Any  three  of  them  may  hold  general  terms  of  said 
court  in  any  district,  and  one  of  them  may  hold  special 
terms  and  circuit  courts,  and  preside  at  the  courts  of  oyer 
and  terminer  in  any  county. 

^  6  They  shall  seveially  at  stated  times  receive  for  their 
services  a  compensation  to  be  established  by  law,  which 
shall  not  be  diminished  during^their  continuance  in  office 

§  7.  They  shall  not  hold  any  other  office  er  public  trust. 
A 11  votes  tor  either  of  them  for  any  elective  office,  (except 
that  of  justice  of  the  supreme  court,  or  judge  of  the  court 
of  appeais,)  given  by  the  legislature  or  the  people,  shall 
be  void.  They  shall  not  exercise  any  power  of  appoint- 
ment, except  in  licensing  piactitioners  in  their  courts. 

§  8.  Tue  classification  of  the  justices  of  the  supreme 
court,  the  times  and  places  ot  holding  the  terms  of  the 
conrt  of  appeals,  and  of  the  general  and  special  terms  of 
the  supreme  court  within  the  several  districts,  and  the 
circuu  courts  and  courts  of  oyer  and  terminer  within  the 
several  counties,  shall  be  provided  for  by  law. 

§  9.  The  testimony  in  equity  cases  shall  be  taken  before 
the  judge,  who  shall  hear  and  decide  the  case  in  the  same 
manner  bs  testimony  is  taken  upon  the  trial  of  an  issue  at 
law. 

^  10.  Surrogates  shall  be  elected  for  four  years.  They 
shall  b«  compensated  by  fixed  salaries,  and  they  snail  no't 
receive  any  lees  or  perquisites  of  office. 

§11.  Justices  ol  the  supreme  court  and  judges  of  the 
court  of  appeals  may  be  removed  by  joint  resolution  of 
both  houses  of  the  legislature,  if  two-thirds  of  all  the 
members  elected  to  the  assembly  and  a  majority  of  all  the 
members  elected  to  the  senate,  concur  therein.  Surrogates 
an>l  all  judicial  officers,  except  those  mentioned  in  this  sec- 
tion, and  except  justices  of  the  peace,  may  be  removed  by 
the  senate  on  the  recommendation  of  the  Governor,  but 
no  such  removal  shall  be  made  unless  the  causes  thereof 
be  entered  on  the,  journal,  nor  unless  the  party  complained 
of  shall  have  been  served  with  a  copy  ol  the  complaint 
against  him,  and  shall  have  had  an  opportunity  of  being 
heard  in  kis  defence.  On  the  question  of  removal,  the 
ayes  and  noes  shall  be  entered  on  the  journals. 

{(12.  The  justices  oi  the  supreme  court  shall  be  nomi- 
nated by  the  Governor  and  appointed  by  and  with  the  con 
sent  of  the  senate,  or 

§  12.  Tim  justices  of  the  supreme  court  shall  be  elected 
by  the  electors  ot  the  respective  districts,  at  such  time  as 
maybe  provided  by  law,  hut  not  within  ninety  days  be- 
fore or  after  the  general  annual  election. 

k  13.  Inferior  courts  of  civil  and  criminal  jurisdiction 
ma'y  be  established  by  the  legislature,  and  appeals  and 
writs  of  error  therefrom  may  be  brought  to  the.  supreme 
court  or  court  of  appeals  ss  shall  be  provided  by  law. 

§  14.  The  legislature  may  reorganize  the  judicial  dis- 
tricts at  the  first  session  alter  the  return  of  every  enumera- 
tion under  this  constitution  in  the  manner  provided  ior  in 
section  four,  and  at  no  other  time;  and  they  may  at  such 
session  increase  or  diminish  the  number  of  districts,  but 
such  increase  or  diminution  shall  not  be  more  than  one 
district  at  any  one  time.  Each  district  shall  have  four  jus- 
tices of  the  supieme  rouit,  but  no  diminution  of  the  dis- 
triets  shall  have  the  effect  to  remove  a  judge  from  office. 

^  15.  The  electors  of  the  several  towns  shall  at  their 
annual  town  meeting,  and  in  such  manner  as  the  legisla- 
ture may  direct  elect  their  justices  of  the  peace.  Their 
number  and  classification  may  be  related  by  law. 

§  16.  The  court  lor  the  trial  ol  impeachments  and  the 
correction  of  errors,  the  court  of  chancery,  the  supreme 
court,  and  the  county  courts  as  at  present  organized,  are 
abolished. 

^  17.  No  judicial  officer,  except  justices  of  the  peace  shall 
receive  any  fees  or  perquisites  of  office. 
By  order  ot  the  committee, 

CHARLES  H.  RUGGLES,  Chairman. 

Mr.  RUGGLES  begged  the  indulgence  of  the 
Convention,  that  he  might  occupy  its  time  a  few 
minutes  in  making  some  explanations  in  regard  to 
the  report  which  had  just  been  read.  T&ecom- 
mittee  to  which  he  belonged  was  not  unanimous 


in  agreeing  to  the  report,  but  he  had  the  direction 
of  a  majority  of  the  committee  to  present  it  to  the 
Convention.     The  necessity  of  revising  and  re-or- 
ganizing oar  judiciary  system  was  one  ot  the  prin- 
cipal causes  of  calling  the  Convention.     This  ne- 
cessity  had  existed  tor  several  years;    and  the  at- 
tempts repeatedly  made  to  amend  the  Constitution 
in  the  mode  pointed  out  in    that  instrument    hav- 
iag  uniformly  failed,  it  became  indispensably  nec- 
essary to  assemble  the  Convention.     Dissatisfac- 
tion had  long  existed  with  regard  to  the  construc- 
tion of  the  present  conrt  for  the  correction  of  er- 
rors.    It  was  believed  by  many  to  be  too  numerous 
for  securing  the  strict  attention  of  all  its  members 
to  the   elaborate  arguments   frequently  made  be- 
fore it  in  complicated  and  difficult  cases.      It  was 
further    alleged    that  Mhe    responsibility    of     it» 
members  was  too  little    felty  because  it  was    too 
much  divided  among  its  great  number   of  judges. 
Its  connection  with  the  legislative  branch  of  the 
government    was  justly  regarded    by  many  as   a 
fault  in  its  organization;  and   particularly  so  with 
respect  to  the  decision  of  all  causes  in  which  the 
constitutionality  of  an  act   of  the   legislature  was 
drawn  in  question.       In    all  such  cases  the  point 
in  dispute  must  necessarily  have  been  prejudged 
in  pas-ing  the  law.     Complaints   have   also  been 
made  of  the  delay    and%xpense   of  litigation  in 
the  Court  of   Chancery  ;    and  yet    the  officers  of 
that    court    are  not    generally,  if   at    all,  justly 
chargeable  with  censure.     The  delay  had  arisen 
partly  from  the  great  quantity  of  business  in  that 
court — vastly  greater    than  its    small  number  of 
officers    can  reasonably  be  expected    to  dispatch 
— and  partly    from  the   inconvenient  and    ill-de- 
vised    mode  of  taking  testimony    before    an  ex- 
aminer, in  writing,  out  of  court.       The    frequent 
appeals  now  allowed   by  law  in  that  and  (he  oth- 
er   courts,    are  objected  to  with   great  reason  as 
unnecessary,  burlhensome    and  vexatious.      The 
supreme   court  is   insufficient  in    the   number  of 
its   judges  to  dispose  of  the   great  mass  of  busi, 
ness  to   be  done  in    it.       A  single  central  bench 
of  judges  is  not    adapted    to  the  convenience  of 
so  large  a  state  as  ours  in  territorial  extent.       It 
can  hold  but  four  terms  a  year;    its  calendars  are 
so  burlhened  and  surcharged  with    business  that 
suitors  and  counsel,  after  travelling  great  distan- 
ces to  arrive   at  the   court,  are   frequently  com- 
pelled to  wait  in  vain  for  the  opportunity   of  be- 
ing heard.     The  circuit  system,  adopted  in  1822, 
is  disapproved  ;  and  the  opinion    of  the  members 
of  the  bar  and  of  the  public,  seem  to  require   the 
restoration,  in  that  respect,   of  the  organization 
which  preceded  that  of  1822.     It  is  believed  to  be 
better  that  the  judges  who  assembled  tore-exam- 
ine the  decisions  at  the  circuits,   should   them- 
selves hold  the  circuit  courts,  and  thus  be  brought 
into    direct  contact  with   the   people   and  their 
business.     In  some  counties,   the  county   courts 
are  efficient  and  useful  in  the  dispatch  of  business. 
In  others.it  it  is  said  they  are  not  so.  and  are  com- 
plained oif  as  a  burthen   rather  than  a  benefit   to 
the  county.     In  the  trial  of  civil  causes   before  a 
jury,  experience  has  demonstrated  that  a  single 
judge  is  more  efficient  than  a  greater  number,  and 
that  those  county   courts  in  which   the  trial   of 
causes  is  committed  to  some  one   of  the  judges, 
give  greater  satisfaction  to  suitors  than  when  they 
all  take  part  in  the  trial.     In  speaking  of  the  in- 


483 


sufficiency  of  the  present  system  of  courts  to  do 
the  business  of  the  state,  it  must  not  be  forgotten 
;t  was  framed  on  the  basis  of  the  population 
of  the  yrii  r  1  vJi  >.  At  that  time  the  number  of  in- 
habitants was  1,372,812.  It  has  since  doubled. — 
The  last  enumeration  shows  the  population  of 
1845  to  be  2,604,495.  The  wealth  of  the  state 
has  increased  probably  in  a  greater  ratio.  It  is 
unreasonable  to  expect  that  the  judicial  officers 
under  the  present  constitution,  although  of  emi- 
nent talent  and  unwearied  industry,  should  be 
able  to  hear  and  determine  all  the  disputes  and 
controversies  which  must  unavoidably  spring  up 
among  an  active,  energetic  and  prosperous 
population  of  nearly  three  millions.  In  fram- 
ing the  plan  which  I  have  here  the  honor 
in  behalf  of  a  majority  of  the  committee  to  report, 
the  committee  have  ende  avored  to  remedy  the 
defects  of  the  existing  system.  By  altering  the 
organization  of  the  Court  for  the  Correction  ot 
Errors;  by  such  a  reduction  of  the  number  of  its 
judges  that  each  may  be  more  apt  to  give  to  every 
case  an  attentive  hearing  and  careful  examination 
without  reliance  on  the  judgment  of  his  fellows, 
and  that  each  may  feel  more  directly  and  sensibly 
the  weight,  importance  and  responsibility  of 
his  own  share  of  the  duty  in  rendering  final 
judgment  between  the  parties  ;  by  severing  its 
connexion  witn  the  Legislature  in  order  that  its 
attention  may  nut  be  diverted  from  its  appropri- 
ate duties  in  ihe  adminisiration  of  justice,  by  mul- 
tifarious subjects  on  which  as  senators,  its  judges 
have  been  called  to  act,  or  by  the  more  exciting 
and  distracting  scenes  of  party  politics  in  which 
the  mernbersof  the  legislature  have  been  continu- 
ally involved;  instead  of  a  court  composed  of  the 
chancellor,  the  j-.-.dges  of  the  supreme  court,  the 
lieutenant,  governor,  and  thirty-two  senators,  the 
committee  recommend  a  court  of  appeals,  to  be 
composed  ot  eight  judges — four  of  whom  shall  be 
justices  of  the  supreme  court  of  original  jurisdic- 
tion and  liable  to  do  the  duties  of  a  justice  of  that 
court  in  holding  circuit  courts  and  terms  when 
not  engaged  in  the  court  of  appeals.  The  com- 
mittee propose  that  the  remaining  four  judges  of 
the  appellate  court  shall  be  elected  by  the  people 
on  a  general  ballot.  This  preserves  and  continu- 
es in  the  court  of  last  resort,  a  popular  and  as  your 
committee  believe,  a  valuable  feature  existing  in 
the  present  court.  The  presence  of  a  portion  o«' 
laymen  in  that  court,  if  such  should  be  elected, — 
ot  men  ot  extensive  general  knowledge  and  sound 
judgment — not  educated  to  the  legal  profession, 
rnay  in  many  cases  be  useful.  It  may  serve  to  cor- 
rect the  tendency  which  is  said  to  exist  in  the 
minds  of  professional  men,  to  be  led  away  by  habits 
of  thought,  from  the  just  conclusions  of  natural 
reason  into  the  track  of  technical  rules,  inapplic- 
able to  the  circumstances  of  the  case  and  at  vari- 
ance with  the  nature  and  principles  ot  our  social 
and  political  institutions.  The  committee  enter- 
tain no  tears  that  a  court  so  constituted  will  be 
unstable  in  its  decisions,  or  that  it  will  fail  in  pay. 
ing  all  proper  respect  to  uniform  rules  and  estab- 
lished precedents.  Whatever  may  be  the  objections 
against  the  election  by  the  people  of  local  judg- 
ment, and  judges  whose  duties  may  require  them, 
alone  and  without  associates,  to  decide  contro- 
versies at  the  circuits  between  their  friends  and 
heir  opponents,  the  objection  applies  with  lit- 


tie,  it  any  force,  to  the  election  of  part  of  the 
judges  of  the  court  of  appeals.  The  judges  of  that 
court  being  eight  in  number,  it  will  seldom  hap- 
pen that  a  majority  of  the  court  are  acquainted 
with  the  parties.  The  majority  of  the  court  will 
always,  from  their  position,  number  and  connex- 
ion with  each  other,  be  beyond  the  reach  of  those 
influences,  which  ia  the  case  of  a  single  or  local 
judge  maybe  regarded  as  unfavorable  to  the  exer- 
cise of  unbiassed  and  impartial  judgment.  For 
the  purpose  of  organizing  a  Supreme  Court  of  ori- 
ginal jurisdiction  the  plan  reported  by  the  com- 
mittee proposes  to  divide  the  state  into  eight  judi- 
cial districts.  The  state  has  outgrown  the  system 
established  in  1822.  There  is  a  necessity  of  increas- 
ing its  working  power,  by  enlarging  the  number 
of  that  class  of  judicial  officers  which  has  hereto- 
fore been  most  efficient.  The  jurisdictions  of  the 
present  Supreme  Court  and  Court  of  Chancery 
are  united  in  one  Supreme  Court  by  the  plan 
proposed.  In  regard  to  this  union  of  the  two 
courts  there  has  been  a  difference  of  opinion 
among  the  members  of  the  committee.  On  the 
one  hand  it  has  been  urged  with  great  force,  that 
the  perfection  of  skill,  in  learning  as  in  the  arts, 
is  best  attained  by  the  division  of  labor ;  and  that 
in  the  vast  field  of  jurisprudence  it  would  be  bet- 
ter to  class  the  laborers  into  separate  departments, 
so  that  the  skill  and  learning  of  each  might  be 
limited  and  directed  to  that  one  particular  branch 
of  duty  for  which  he  might  be  most  eminently 
qualified.  On  the  other  hand  that  system  is  sup- 
posed by  some  to  be  attended  with  the  inconveni- 
ence of  having  too  many  tribunals.  By  others  it 
is  believed  that  by  uniting  the  two  tribunals  in 
one,  the  modes  of  procedure  at  law  and  in  equity, 
which  now  differ  widely,  may  immediately,  by 
legal  enactment  or  more  gradually  by  the  action 
and  practice  of  the  court  be  assimilated  and  final- 
ly blended,  thus  obliterating  and  abolishing  ^the 
distinction  between  law  and  equity  as  heretofore 
recognized.  Without  coming  to  this  conclusion, 
several  of  the  committee  who  were  inclined  to 
favor  the  continuance  of  separate  courts,  have  re- 
garded it  as  a  question  not  of  vital  importance ; 
and  they  have  yielded  their  original  preference 
for  separate  courts  in  favor  of  what  they  deem  the 
greater  advantages  of  the  plan  reported.  The 
union  of  the  two  jurisdictions  in  the  same  court 
is  not  an  untried  experiment.  It  has  the  sanction 
of  a  number  of  the  states  ;  and  is  part  of  the  ju- 
dicial system  of  the  United  States.  One  of  its  ad- 
vantages in  connexion  with  the  plan  of  the  com- 
mittee arises  from  the  greater  faciiiy  and  conve- 
nience with  which  the  equity  causes  involving 
questions  of  fact,  may  be  tried  before  a  jury  at  the 
circuit  in  the  county  where  the  parties  reside,  and 
without  the  formality  and  expense  of  a  separate 
court.  One  of  the  changes  recommended  by  the 
committee  and  which  they  all  regard  as  highly 
important  and  useful,  relates  to  the  taking  of  tes- 
timony in  equity  causes.  Heretofore  it  has  been 
taken  by  deposition  before  an  examiner  in  chan- 
cery and  not  in  open  court.  The  examiner  not 
being  authorized  to  reject  any  testimony  which 
either  party  proposes  to  take,  the  depositions 
are  usually  encumbered  with  a  vast  mass  of 
matter  immaterial  to  the  questions  in  contro- 
versy. A  great  proportion  of  the  delay  and 
expense  of  litigation  in  chancery  arises  from 


484 


this  cause.  The  committee  recommend  a  pro 
vision  directing  the  evidence  to  be  taken  be 
fore  the  judge  on  the  trial  as  in  cases  of  com 
mon  law.  Although  this  is  a  matter  within  the 
power  of  the  legislature  it  has  long  been  the 
subject  of  complaint  and  the  evil  has  remained 
without  correction.  The  committee  consider  it 
so  essential  in  the  way  of  reform,  and  so  mate- 
rial in  relation  to  the  operation  of  the  system  re- 
ported, that  they  deem  it  worthy  of  constitutional 
enactment.  The  justices  of  the  Supreme  Court,as 
proposed  by  the  committee,  are  to  be  charged  with 
the  entire  judicial  business — legal  and  equitable, 
civil  and  criminal,  which  has  heretofore  been 
done  by  the  supreme  court,  the  court  of  chancery, 
and  the  county  courts.  The  weight  and  burthen 
of  the  business  is  considerably  increased  by  the 
duty  charged  upon  the  judges  of  taking  the  testi- 
mony in  equity  cases  in  open  court  at  the  circuit. 
For  these  varied  and  extensive  duties  the  num- 
ber of  judges  of  the  Supreme  Court  must  be  large. 
The  committee  propose  eight  districts,  and  four 
judges  in  each  districts— 32  in  the  whole;  of  which 
number,  however,  four  are  to  be  judges  of  the 
court  of  appeals,  leaving  28  judges  for  the  actual 
business  of  the  Supreme  Court.  These  judges  are 
to  hold  as  many  general  and  special  terms  in  each 
district,  and  as  many  circuit  courts  and  courts  of 
oyer  and  terminer  in  each  county  as  may  be  ne- 
cessary. By  the  system  thus  proposed,  the  com- 
mittee have  endeavored  to  provide  a  remedy  for 
the  deficiencies  of  the  present  organization  :* 

1st.  By  adapting  the  number  of  active  judicial 
officers  to  the  altered  circumstances  of  the  State 
and  to  the  quantity  of  work  to  be  done. 

2nd.  By  reducing  the  number  of  judges  of  the 
appellate  court  tor  its  greater  conveniency  and 
efficiency  in,  the  despatch  of  business. 

Third.  By  separating  that  court  from  its  con- 
nexion with  the  legislative  branch  of  the  govern- 
ment. 

Fourth.  By  the  reduction  of  the  number  of  ap- 
peals in  civil  cases,  consequent  on  the  establish- 
ment or  a  single  court. 

Fifth.  By  diminishing  the  delay  and  expense 
of  litigation  in  the  court  ot  chancery  in  the  mode 
of  taking  evidence,  and  by  providing  a  number  of 
judges  sufficient  to  dispatch  the  business  of  that 
court. 

Sixth.  By  establishing  a  branch  of  the  court 
in  each  of  the  eight  districts,  so  that  the  business 
may  be  done  where  it  arises,  without  journeying 
to  distant  parts  of  the  state  for  the  hearing  of 
causes. 

Seventh.  By  abolishing  the  system  of  circuit 
judges;  and  requiring  their  duty  to  be  done  by  the 
judges  of  the  supreme  court. 

Eighth.  By  an  inflexible  rule  tnai 'all  judicial 
officers,  above  the  grade  of  justices  of  the  peace, 
shall  be  compensated  by  fixed  salaries,  and  shall 
not  receive  fees  or  perquisites  of  office. 

It  has  been  the  aim  and  object  of  the  commit- 
tee to  give  to  the  system  proposed,  all  the  requi- 
site efficiency  with  the  smallest  number  of  judi- 
cial officers  adequate  to  that  end;  and  with  as  lit- 
tle increase  ot  expense  to  the  treasury  as  may  be 
consistent  with  the  prompt  and  faithful  adminis. 
tration  of  justice  How  far  the  cbinmittee  have 
succeeded  in  diminishing  the  number  of  officers, 
will  appear  by  a  brief  comparison  of  the  present 


system  wuh  that  which  is  proposed  in  its  place: 
The  Court  of  Errors  consists  of  the  Lieut.  Governor  and 

Senators— in  number, 33 

The  Court  of  Chancery,  of  the  Chancellor  and  three 

Vice-Chancellors, ^ 

The  Supreme  Court,  of  three  Judges, 3 

Circuit  Judges,-. g 

County  Judges,  five  in  each  county,  excepting  New- 
York, ....". 290 

Making  in  the  whole,  338  judges,  besides  the 
judges  of  the  local  city  courts,  which  may  be  re- 
quired to  remain  as  they  are.  In  the  place  of 
these  338  judges,  and  168  examiners  in  chancery, 
the  committee  propose  that  the  business  should 
be  done  by  the  36  judges  mentioned  in  this  re- 
port. But  the  establishment  proposed  by  the 
committee,  must  unavoidably  be  a  charge  on  the 
treasury,  somewhat  heavier  than  the  present,  be- 
cause the  present  is  dependent  to  some  extent  on 
fees  received  for  specific  services,  which  the  com- 
mittee recommend  unanimously  should  be  en- 
tirely changed.  The  judges  created  under  the 
new  constitution  are  to  be  compensated  by  fixed 
salaries,  and  not  be  in  any  respect  dependent  on 
suitors,  attorneys,  solicitors,  or  counsellors,  for 
their  livelihood  or  emolument ;  and  because,  al- 
though the  entire  number  of  judges  is  greatly  di- 
minished, the  number  of  efficient  working  officers 
requires  to  be  and  is  enlarged,  for  the  purpose  of 
giving  greater  promptness  and  efficiency  to  this- 
branch  of  the  government.  The  expense  of  the 
present  system,  and  of  that  reported  by  the  com- 
mittee, will  appear  by  the  following  statement : 

The  expenses  of  the  Court  for  the  Correction  of 

Errors  in  1845,  as  stated  by  the  Comptroller....  $26,193 

hancelloi's  salary 3,000 

Vice  Chancellor,  1st  circuit. 2,000 

Assistant  Vice  Chancellor 2,700 

Vice  Chancellor  ot  the  8th  circuit 1,600 

Three  Justices  of  the  Supreme  Court 9.000 

Eight  Circuit  Judges,  $1,600  each 12,600 

Paid  i.n  47  counties  for  the  attendance  and  services 

of  the  Judges  of  the  county  courts 14,632 

Estimated  lor  the  remaining  counties 3,424 


$75,359 


Amount  drawn  from  the  State  and  co.  Treasuries- 

Fees  of  the  Vice  Chancellor  ol  New  York,  the 

Assistant  Vice  Chancellor  and  Judge  of  the  1st 

circuit 

Judge  of  2d  circuit,  returned • 

3d  circuit,  returned 

4ih  circuit,  returned 

6th  circuit  estimated  at 

6th  circuit,  estimated  at 

7th  circuit,  returned 

8th  circuit,  returned 

Fees  of  86  Examiners  in  Chancery 

Estimated  at  same  rate  for  remainder,  not  returned 
Fees  paid  to  first  Judges  ot  counties 

$44,095 

Add  to  this  the  sum  before  stated  as  drawn  from 
the  State  and  County  Treasuries 75,359 


Making  a  sum  total  of- 


$119,454 


which  constitutes  the  compensation  paid  by  the 
state,  by  the  counties,  and  by  suitors  in  fees  to  the 
three  hundred  and  thirty-eight  judges  and  to  the 
examiners  in  chancery,  under  the  present  organi- 
zation. 

An  accurate  comparison  of  the  present  estab- 
ishment  with  that  which  the  committee  have  pro- 
posed, cannot  be  made,  because  the  committee  do 
not  propose  that  the  salaries  of  the  judges  under 
the  new  arrangement  should  be  fixed  by  the  con- 
stitution. They  deem  it  expedient  that  it  should 
)e  left  to  the  legislature.  But  ii  the  plan  propos- 


485 


ed  by  the    committee    should   be  adopted   by  the 
Convention,    and  the    legislature  should  fix   the 
compensation  of  the  thirty-six  judges  at  the  same 
sum  which  is  now  paid  to  the  judges  of  the  pres- 
ent Supreme  Court,  the  amount  (which  would  be 
01)0)  is  less  than  the  sum  now  paid    to  the 
judges  and  examiners,  although  it  is  more  than  is 
drawn  from  the  public  treasuries.     But  when  we 
take  into  view  the  great  increase  of  the  population 
and  wealth  of  the  state  since   the  present  system 
was  established,  the  actual  expense  upon  the  trea- 
sury will    be  less  in    proportion  to    the  means  of 
defraying  it  than  thai  of  the  present  system   was 
when  it  was  established.  But  if  it  should  be  deem- 
ed  just  that  the  suitors  should  contribute  towards 
the  expenses   of   the  establishment   and   thus  re- 
lieve the  treasury  from    a  part   ot  the  burthen,  a 
small  sum  paid  in  each  case  at  some  specified  stage 
of  its  progress,  into  the  hands  of  the  clerks  tor  the 
benefit   ot   the   treasury,    will  effect  that  object 
without  increasing  the  expense  to  the   public  be- 
yond what  is   now  paid  in  the   shape  of  fees. — 
This  however  is  not  suggested  by  the  committee 
as  expedient  to  be  adopted  either  here  or  in  the 
legislature.     The  object  of  the  chairman  is  only 
to  show  that  the  establishment  proposed  by  the 
committee   is  neither  beyond  the   wants  nor  be- 
yond the  means  of  the  State  on  principles  of  strict 
economy.     Dividing  the  population  of  the  State, 
which  is  2,604,495,  by  the  number  of  judges  pro- 
posed by   the   committee,  the  result,  if  the  re- 
port should  be  adopted,  will   be   that  we  shall 
have  one  judge  to  every  72,347  inhabitants.     On 
a  comparison  of  our  own  with  other  States,  it  is 
found   that  the   number   of  our  judges  will  be 
smaller  in  proportion  to  our  population  than  in 
any  State  in  thr-  Union,  excepting  two.     Massa- 
chusetts has  one  judge  to  73,769  inhabitants,  ac- 
cording to  the  census  of  1840,  and  North  Caro- 
lina to   75,341,  according  to  the  same  enumera- 
tion.    In  Massachusetts  their  judges  are  heavi- 
ly  burthened   with   duty.     In    North   Carolina, 
if  the  slave  population   is   deducted,   that  State 
has  one  judge  to  every  51,000   inhabitants.     In 
considering  this  plan  of  the  committee,  with  re 
spect  to  the  number  of  judges,  the  more  doubt 
ful   question  is  whether  the   number  is   not  too 
small.     The   system  proposed  is,  however,  capa- 
ble of  expansion,  without  further   constitutional 
provision.     This  may  be  done  by  adding   to   the 
number  of  districts  after  the  State  census  of  1855 ; 
or  by  the  establishment  of   inferior   courts  if  the 
Supreme  Court  should  be  found  overcharged  with 
business.     As  to  the  mode  by  which   the  judges 
should  be  selected,  whether   by  appointment  or 
by  popular  election,  the  members  of  the  commit- 
tee entertain  different    opinions.     They    under 
stand  that  the  same  differences  of  opinion  exist 
in  the  Convention.     The  plan   submitted  in   the 
report  is  adopted  to  either  mode  of  selection,  and 
believing  that  on  this  point,  which  has  been  the 
subject  of  much  conversation  and  discussion,  the 
opinions  of  the  committee  may  better  be  ascer- 
tained on  the  floor  than  by  the   report,  they  have 
reported,  and  respectfully  submit  a  proposition  in 
the   alternative.      So   that  the   convention   may 
adopt  that  which   it  may  in  its  wisdom  deem  the 
most  advantageous  to  the  public.     The  present, 
for  obvious  reasons,  is  not  a  suitable  occasion  for 
entering  into  a  discussion  of  that  topic.    It  will, 


doubtless,  receive,  at  the  proper  time,  that  atten- 
:ion  from  the  convention  which  its  great  impor- 
tance deserves. 

Mr.  O'CONOR  presented  a  minority  report — 
which  the  Secretary  read  as  follows  : 

ARTICLE  — . 

§  1.  Tha  judicial  power  of  this  state  shall  be  vested  in 
:he  Supreme  Court,  and  the  interior  courts  mentioned  in 
:his  article  ;  subject  to  such  appellate  jurisdiction  as 
may  be  vested  in  the  Court  of  Appeals. 

§  2.  The  state  shall  be  divided  by  law  into  a  convenient 
number  of  districts,  not  less  than  eight  nor  more  than 
twelve,  subject  to  alteration  from  time  to  time  as  the  pub- 
lic good  may  require;  in  each  ol  which  there  shall  be  elec- 
ted by  the  people  one  judge  of  the  Court  of  Appeals;  and 
lor  each  of  which  there  shall  be  appointed  by  the  supervi- 
sors of  the  towns  and  wards  therein,  at  a  joint  meeting, 
three  district  judges,  or  so  many  more  as  may  be  directed 
by  general  laws. 

3.  The  Court  of  Appeals  shall  consist  of  the  Lieuten- 
ant? Governor,  the  judges  so  elected,  or  the  major  part  of 
them,  and  any  two  judges  of  the  Supreme  Court.  In  the 
absence  of^he  Lieutenant  Governor  the  senior  justice  pre- 
sent shall  preside.  The  Judges  ot  the  court  below  shall 
assign  the  reasons  for  their  decision,  and  the  same  shall 
not  be  reversed  or  altered  without  the  concurrence  of  six 
members. 

($4.  The  Supreme  Court  shall  consist  of  a  chief  justice 
and  twelve  justices,  any  of  whom  may  hold  the  court. 

(j  5.  Civil  cases  at  issue  in  the  Supreme  Court,  whether 
triable  by  jury  or  not,  may  be  tried  before  any  of  the  jud- 
ges before  mentioned  in  this  article.  Anj^hree  of  saidP 
judges,  or  any  one  of  them,  with  one  or  more  of  the  coun- 
ty judges,  may  hold  courts  of  oyerand  terminer  and  gene- 
ral jail  delivery. 

§6.  The  county  courts  may  be  held  by  the  district  or 
county  ju  tges  or  any  of  them.  The  general  sessions  of 
the  pe'ace  may  be  held  by  any  three  of  said  judges,  or  by 
any  one  of  them  with  two  justices  of  the  peace. 

^7.  There  shall  be  in  each  county  one  or  more  county 
juuges,  and  in  each  town  one  or  more  justices  of  the  peace, 
as  may  be  directed  by  general  Jaws.  The  number  of  jus- 
tices of  the  peace  in  ciiies  and  wards  thereof  and  in  villa- 
ges, shall  be  prescribed  by  law. 

§  8.  Courts  of  civil  jurisdiction,  having  a  clerk  and  seal, 
to  be  held  by  three  or  more  judges,  may  be  established  in 
any  city,  and  courts  of  summary  process,  having  a  clerk, 
and  to  be  held  by  one  or  more  justices  of  the  peace,  may 
be  established  in  any  city,  ward  or  wards,  town  or  village, 

§  9.  Appeals  may  be  allowed  by  general  laws  from  deci- 
sions of  a  city  or  county  court  held  before  three  or  more 
judges,  directly  to  the  Court  of  Appeals. 

(j  10.  The  Justices  of  the  Supreme  Court  shall  be  appoin- 
ted by  the  Senate  and  Assembly  in  joint  meeting,  at  which 
the  President  of  the  Senate  shall  preside.  And  it  such  Pre- 
sident be  the  Lt.  Governor,  he  shall  have  a  casting  vote 
only.  Clerks  of  the  Supreme  court  shall  b3  elected  by 
the  people  of  the  state  or  district  as  may  be  directed  by 
law.  County  judges  shall  be  appointed  by  the  Boards  of 
Supervisors,  and  City  Judges  and  their  Clerks  by  the  Com- 
mon Councils  of  the  cities.  In  towns,  the  Justices  of  the 
Peace  aud  Clerks  of  the  Justices'  Courts  shall  be  elected 
by  the  people,  and  in  cities,  wards  and  villages,  shall  be 
appointed  by  such  local  authorities,  or  elected  by  the  peo- 
ple as  may  be  prescribed  by  general  laws. 

§  11.  Clerks  of  courts,  Justices  ot  the  Peace,  and  County 
Judges  shall  hold  their  offices  for  lour  years;  Judges  of 
the  Court  of  Appeals,  District  and  City  Judges  for  ten 
years,  and  Justices  ol  the  Supreme  Court  during  good  be- 
haviour, or  until  they  attain  the  age  ot  seventy  years. 

§  12.  Justices  of  the  Peace  may  be  vested  with  jurisdic- 
tion, in  civil  cases  for  money  demands  not  exceeding  $100. 

§  13.  All  Judges  and  Justices  mentioned  in  this  article 
or  any  of  them,  may  be  vested  with  such  jurisdiction  as 
conservators  of  the  peace  or  otherwise,  as  may  be  pre- 
scribed by  law. 

tj  14.  County  and  City  Judges,  and  Cleiks  of  the  Supreme 
and  City  Courts,  may  be  removed  by  the  Senate  on  the  re- 
commendation of  the  Governor  and  Justices  of  the  Peace, 
and  Clerks  of  Justices'  Courts  may  be  removed  by  the 
County  Courts,  for  causes  to  be  specified  in  the  recommen- 
datipn  or  order  ol  removal.  '1  hn  officer  shall  have  notice 
of  the  charge  against  him  and  the  right  of  being  heard 
thereon  before  the  Governor  or  County  Court. 

§  16.  Vacancies  in  any  of  the  offices  mentioned  in  this  ar- 
ticle, happening  by  death  or  otherwise,  may  be  filled  by 
temporary  appointments  as  may  be  prescribed  by  law. 


486 


6  16.  No  Judge  shall  hold  any  other  office  or  public  trust, 
and  all  votes  given  for  any  of  them  during  his  continuance 
in  office  shall  be  void 

*  VLNo  Jud&e-  nor  any  justice  of  the  peace,  authorized 
to  hold  any  court  mentioned  in  the  8th  section  of  this  arti- 
cle, shall  exorcise  any  power  of  appointment  to  office,  or 
receive  any  fees  or  reward  for  any  services  whatever  ex- 
cept a  stated  salary  to  be  prescribed  by  law,  and  to  be  un- 
alterable during  his  term  oi  office.  Courts  and  judges  may 
be  authorized  to  appoint  trustees,  receivers,  auditors,  re- 
ferees, elisors,,  experts,  and  other  agents,  to  perform  du- 
ties m  any  pending  suit  or  matter,  and  to  license  counsel- 
lors ana  attorneys. 

&  18.  A  code  of  procedure  in  civil  suits  shall  be  enacted 
within  two  years,  subject  to  alteration  by  law.  The  Su- 
preme Court,  subject  to  control  by  law,  shall  establish 
uniform  rules  of  practice  for  all  civil  courts  in  this  state, 
except  the  Court  of  Appeals. 

§  19.  All  causes  and  matters  depending  in  the  Court  of 
Chancery,  shall  be  transferred  to  the  Supreme  Court  The 
transferor  continuance,  as  may  be  required,  of  all  other 
causes  and  matters  depending,  shall  be  directed  by  law. 

The  following  section  should  be  inserted  in  the  chap- 
ter on  the  legislative  department,  immediately  after  the 
section  No.  12,  in  the  Constitution  of  1821:— 
A.—-  The  Assembly,  by  the  concurrence  of  a  majority 
i  the  number  elected,  may  impeach  any  civil  officer  for 
mal  or  corrupt  conduct  in  office,  or  for  high  crimes  and 
misdemeanors.  The  Senate,  with  the  judges  of  appeals, 
or  the  major  part  of  them,  shall  have  sole  power  to  try  all 
impeachments.  Before  sitting  on  such  trial,  each  mem- 
ber shall  take  and  subscribe  a  solemn  declaration,  truly 
and  impartially,  to  try  and  determine  the  charge  in  ques- 
ti«n  When  thg Governor  is  impeached,  the  Lieut.  Gov- 
ernor shall  take  no  part  in  the  trial.  No  conviction  shall 
take  place  without  the  concurrence  of  two-thirds  of  the 
members  present;  nor  shall  judgment  extend  further  than 
to  removal  from  office;  but  the  party  convicted  shall  be 
liable  to  indictment  and  punishment  according  to  law. 
Respectfully  submitted. 

CHARLES  O'CONOR. 

Mr.  O'CONOR  said  it  was  not  necessary  that 
he  should  do  more  at  this  time  than  to  state  brief- 
ly the  points  on  which  he  differed  from  a  major- 
ity of  the  committee.  That  difference  to  be  sure 
would  sufficiently  appear  from  his  written  report, 
yet  according  to  usage  he  would  shortly  state  it, 
that  it  might  come  before  the  minds  of  the  mem- 
bers more  clearly,  by  being  unconnected  with 
the  minor  details  which  in  a  paper  of  this  kind 
are  apt  to  divert  attention  from  the  principle  in- 
volved. He  was  of  opinion  that  it  was  quite  pro- 
per to  preserve  that  feature  in  our  judicial  sys- 
tem,which  authorizes  the  people  to  elect  the  great- 
er part,  or  nearly  all  the  judges  of  the  court  of  ap- 
peals in  the  last  resort.  He  was  of  that  opinion 
because  it  was  desirable  as  far  as  conveniently 
practicable  to  vest  the  power  of  appointment  to 
Office  in  the  people  rather  than  in  any  select  body; 
4nd  also  because  he  conceived  there'would  be  no 
difficulty  in  the  people  acquiring  such  a  degree 
of  knowledge  concerning  the  character  and  capa- 
city of  every  candidate,  as  might  be  necessary  to 
enable  them  to  determine  his  fitness  to  hold  a  seat 
in  that  high  tribunal.  But  in  reference  to  such  de- 
partments as  the  supreme  court  and  the  county 
courts,  if  indeed  those  tribunals  are  to  be  pre- 
served, his  reflections  had  led  him  to  a  different 
!  conclusion.  In  those  courts  not  only  are  integ- 
rity and  soundness  of  judgment,  and  great  general 
capacity  and  good  sense,  required,  but  also  an 
extensive  knowledge  of  what  is  commonly  called 
the  technicalities,  or  the  more  artificial  details  of 
the  legal  machinery  and  great  experience  in  the 
application  of  them.  As  to  these  courts,  it  struck 
him  with  great  force  to  be  eminently  proper  that 
the  people  should  make  choice  of  the  judges  thro' 
the  instrumentality  of  some  select  body  or  com- 
mittee appointed  to  make  the  selection.  Taking 


for  his  guide  in  this  matter,  the  practice  which 
has  long  obtained  throughout  the  country,  in  the 
organization  of  the  school  districts,  vvhere  the 
people  elect  all  their  ordinary  governing  officers 
but  do  not  assume  the  appointment  of  the  teach- 
ers ;  but  refer  their  selection  to  a  select  body.  In 
that  way  only  can  we  examine  into  the  minute 
details  as  to  capacity  and  fitness  in  the  candidate 
which  are  requisite  to  be  known,  before  a  proper 
choice  can  be  made.  From  want  of  opportunities 
of  observation,  and  not  from  want  of  capacity  to 
judge, 'he  conceived  that  the  people  could  not,  in 
their  own  persons,  make  the  best  selections.  The 
principle  of  election  by  the  people,  he  would  re- 
tain in  the  judicial  department  to  the  full  extent 
in  which  it  had  been  sanctioned  and  applied  in 
former  usage ;  that  is  to  say,  in  the  construction 
of  the  court  of  appeals  in  the  last  resort.  He  did 
not  agree  with  the  committee,  in  the  propriety  of 
extending  it  to  the  selection  of  the  judges, in  the  first 
instance.  He  also  dissented  from  the  majority  in 
their  resolution  to  abolish  (he  county  courts.  It 
now  seemed,  though  he  did  not  know  it  until  this 
morning,  that  he  was  in  a  minority  on  that  point. 
He  had  supposed  a  majority  was  in  lavor  of  op- 
holding  these  county  courts.  In  this  he  dif- 
fered radically  with  the  committee,  for  he 
held  it  to  be  exped.ient  not  to  annihilate  the 
county  courts  because  they  were  now  inef- 
ficient, as  indeed  all  the  courts  were.  On  the 
contrary  he  deemed  it  a  sounder  policy  to  pre- 
serve, reorganize  and  strengthen,  so  as  to  qualify 
them  for  the  dispatch  of  business.  3y  this 
;means  the  great  portion  of  the  business  of  the 
sptate  would  be  performed  in  these  tribunals.  In- 
timately connected  with  this  difference  between 
himself  and  the  committee,  was  another  in  rela- 
tion to  the  structure  of  the  Supreme  Court.  De- 
siring to  preserve  the  county  courts  by  means  of 
a  district,  jorganization  which  would  raise  those 
courts  to  a  very  high  grade  in  point  of  capacity, 
he  deemed  it  highly  desirable  to  preserve  the 
singleness  and  unity  of  the  Supreme  Court. — 
It  might  meet  in  as  many  places,  and  hold  as 
many  terms  as  the  legislature  might  direct,  but 
he  considered  it  essential  to  the  preservation 
of  private  right,  and  public  liberty,  and  vitally 
important  in  reference  to  the  legal  reputation  of 
the  state,  that  we  should  retain  one  single,  uni- 
form supreme  court,  and  not  a  court  split  up  into 
fragments  like  that  reported  by  the  committee. 
Herein,  again,  he  differed  radically  from  the  com- 
inittee.  He  would  state  another  and  a  leading  rea- 
3pn  why  he  had  presented  a  distinct  and  fully 
written  out  system  differentfrom  that  presented  by 
the  committee.  Whilst  he  was  very  much  dis- 
posed to  preserve  essentially  the  existing  state  of 
things  so  far  as  the  judges  and  the  modes  of  or- 
ganizing the  courts  were  concerned — and  in 
that  respect  might  be  considered  as  acting  on  a 
strongly  conservative  principle,  yet  in  respect 
to  the  forms  of  practice  and  pleadings,  these  mi- 
nor details  administrative  of  civil  justice,  he  went 
far  beyond  the  majority  of  the  committee,  in  the 
disposition  to  make  what  might  be  called  radical 
changes.  The  convention  had  been  informed  by 
the  Chairman  that  the  committee  had  determined 
by  a  considerable  majority  to  bring  together  the 
administration  of  what  was  called  law  and  equity 
and  to  direct  justice  in  these  two  forms  to  be  ad- 


487 


ministered  in   the   same   courts,   acting,   as   the 
chairman  informs  us,  in  some  measure  under  the 
idea  that  at  some  period  those  two  forms  and  me- 
thods of  administering  civil  justice  might  be  per- 
v  blended,  so  that  there  should  no  longer  be 
/  recognized  or   known  such  a  distinction   as   law 
and  equity — a  distinction  which  it  mustbe  admit- 
ted it  would   be  highly  desirable  to  abolish.     He 
deemed  it  an  evil  that  we  should  have  recognised 
in  the  constitution,  by  an  express  provision,  the 
truth  of  that  saying  which  the  unlearned   in   the 
metaphysics  of  law  or  legal  practice   are   arpt  to 
indulge  in  when  they  find  fault  with  a  legal  de- 
cision— to  wit,  that  law  is   one   thing  and  equity 
or  good  conscience  is  another.     He  thought  theiTi 
no  ground  for  the  distinction,   and  that  civil 
justice  in    all  its  forms   and  phases  might  bej 
and  ought  to  be  administered  in   the  same  tribu-1 
nals  and  in  one   uniform   mode   of  procedure. — 
Although  it  had  been  his  fortune  to  practice  for  a 
good  many  years  in  the  rigid  and  technical  forms 
of  the  common  law  and  though  he  did   not   hesi- 
tate to  say,  even  here,  that  he  was  capable  of  fen- 
cing with  them  as  his   neighbors   and  of  taking 
care  that  his  clients  should  not  suffer  from   their 
misapplication,  yet  he  had  long  thought  that  there 
was  no  propriety  in  the   existing  distinctions  in 
the  forms  of  practice  and  pleading,  between  these 
two  tribunals — that  of  law  and  equity ;  and  there- 
fore, with  the  same  view  as  the  committee,   that 
of  ultimately  blending  them  together,  and  forming 
one  consistent,  uniform  and  harmonious   method 
of  practice  in  the  administration   of  justice,   he 
had  brought  forward,  as  well  as   the   committee, 
a  system  tending  to  that  end.     His  method  of  ef- 
fecting the  result  differed  from  that  of  the.  com- 
mittee in  'his  one  important  jrespect— in  no  part 
of  the  article  which  he  had  presented  had  he  in- 
troduced the  phrases — courts  of  law,   and   courts 
of  equity — jurisdiction  in  law,  or  jurisdiction   in 
equity.     By  thus  denying  to  the  distinction  a  con- 
stitutional recognition,  it  was  left  fully   and   un- 
questionably within  the_p_o_vver  of  the  legislature, 
should  they  in  their  wisdom,  on  a  full   examina- 
tion of  the  subject,  find  it  proper  to   blend   the 
system,  to  do  so.     It  left  the  law-making  and  law 
reforming  power    unemharraa&£d_by  any  language 
in  the  constitution,  which  might  be  a   barrier   to 
such  blending.     It  also  left  to  them  the  power  01 
retracing  their  steps,  if  after  making  the  experi- 
ment, it  should  be  found  that  the  project  of  blend- 
ing the  two  systems  was  impracticable — was,   as 
.some  suppose,  a  dream  of  visionary  enthusiasts  in 
law-reform.  If  enlightened  by  the  developments  o 
excellence,  ttu-y  suould  find    the  distinction  sain 
laty,  i  hey  wou^ld  be  Iiee  to  erect  anew  this  barrie 
between  law  and  conscience,  which    nothing  bu 
the  iron    test  of  mischiefs  actually    experience 
from  its  abolition,  could  convince  me  was  neces 
s-ary.       It  was,  in  a  principal  measure,  with  the 
view  of  avoiding  the  permanent    establishment  ii 
the  constitution    beyond     the  reach  of    legisLtiv 
f         power,  ot  these  two  modes  of  proceeding,  that  h< 
h,ul  felt  himself  constrained    to   write  out  anev 
the  whole  article;    otherwise  he  would  probabl; 
have  confined   hi.nselfto    his  right  to  propose,  ii 
committee  of  the.  whde,  amendments  vt  the  arti 
cle  reported  by  the  chairman.     In  other  respects 
he  mainly  concurred  with  the  committee.     VVhils 
he  concurred    most  fully   in  thr-    remarks  of  Ih 


onorable  chairman,  as  to  the  expediency  of'as- 
imilating  the  modes  of  taking  testimony  in  those 
ifierent  classes  of  cases,  called  cases  at  law  and 
ases  in  equity,  and  especially  that  I  he  trial  by 
nry  should  be  extended  as  far  as  possible,  slill  he 
!ad  omitted  that  provision  fiom  his  system,  be. 
ause  he  conceived  that  these  minute  details  be- 
onged  to  the  field  of  ordinary  legislation  or  to 
hut  of  court  rules,  and  not  to  the  Constitution. 

Mr.  KIRKLAND  said,  in  the  reasons  so  well 
tated  by  the  honorable  chairman  of  the  Judicia- 
y  Committee  for  a  radical  and  thorough  reform 
>f  the  Judiciary  system,  I  fully  agree.  Eut  in  the 
node  of  obtaining  that  result,  and  of  re-organiz- 
ng  the  Judicial  tribunals  I  differ  essentially  from 
he  committee ;  and  I  feel  great  regret  in  being\ 
Constrained  to  dissent  from  their  report.  In  pre- 
lenting  a  separate  report  as  one  of  a  minority  of 
hat  committee,  I  do  so,  sir,  with  unfeigned  d'iffi- 
dence,  with  a  feeling  of  the  most  entire  respect 
ror  every  member  of  that  committee  and  with  a 
ust  sense  of  the  responsibility  that  I  assume.  I 
lave  not  the  vanity  to  supppose  that  my  report  will 
adopted  by  this  Convention ;  but  if  there 
>e  any  proposition  or  sentiment  contained  in 
"t  that  shall  communicate  a  single  new  idea 
:o  any  member  of  this  honorable  body,  or 
contribute  in  the  slightest  degree  to  the  im- 
jortant  work  of  forming  a  suitable  judiciary 
system  for  this  State,  my  object  will  have 
)een  accomplished,  and  I  shall  be  entirely  satis- 
fied. This,  sir,  is  not  the  time — this  is  not  the 
jroper  occasion  to  state  the  reasons  in  detail  why 
[  am  opposed  to  the  report  of  the  majority  of  the 
committee,  nor  of  explaining  why  I  am  in  favor 
of  the  article  which  I  shall  take  the  liberty  of 
^resenting.  I  will  however  say  that  the  Supreme 
Dourt  as  reported  by  the  committee,  whilst  it 
purports  to  be  and  nominally  and  theoretically 
forms  but  one,  yet  it  is  in  fact,  and  practically,  a 
court  composed  of  fragmentary  parts,  liable  to 
conflict  and  contradiction ;  and  it  is  in  point 
of  fact,  nothing  more  in  its  practical  results  than 
a  number  of  independent  courts.  Now,  sir,  one 
great  difficulty  in  this  plan  I  propose  to  remedy. 
i  propose  to  obviate  the  inconvenient  and  anama- 
lous  character  of  such  an  arrangement.  I  pro- 
pose to  do  in  form  what  that  report  does  practi- 
cally, not  theoretically,  to  organize  separate 
courts  of  the  same  grade,  of  concurrent  and  inde- 
pendent general  jurisdiction.  And,  sir,  I  would 
further  state,  that  in  my  judgment  there  is  a  seri- 
ous, if  not  a  fatal  objection  to  the  system  pro- 
posed by  the  committee  in  its  omission  to  provide 
for  county  courts.  It  is  my  firm  and  deliberate 
conviction  that  the  immense  business  of  this  State 
cannot  be  done  without  the  aid  of  such  a  tribunal. 
Bt-tore  1  an  down,  sir,  I  will  make  a  few  remarks  as 
to  the  mode  bv  which  I  propose  to  fill  the  offices  I 
have  designate d  in  my  article.  1  propose  to  ap. 
point  these  officers  differently  from  the  committee 
or  from  the  pi.ui  proposed  in  the  report  presented 
by  the  majonty  of  (hut  committee.  In  fifteen  or 
twenty  of  the  States,  these  high  judicial  officers 
are  appointed  by  the  Legislature;  m  joint  ballot. 
Now  I  ptopose  to  divide  the  power — to  place  it 
in  different  depositories — to  have  a  pa.  t  of  them 
felected  directly  by  the  people,  a  pan  of  them  by 
ihe  Governor  and  Senate,  and  a  part  of  them  by 
[he  joint  ballot  of  the  Senate  and  Assembly.  I 


488 


will  not  now,  sir,  detain  the  Convention  by  giving 
my  reasons  tor  proposing  this  plan;  I  will  do 
so  fully  when  this  question  comes  to  be  discussed 
hereafter.  As  to  t«e  mode  of  organizing  the  su- 
perior courts,  by  my  plan  which  proposes  con- 
current jurisdiction",  I  will  merely  observe,  sir, 
that  this  is  no  new  course,  no  unknown  path, 
no  untried  experiment.  I  am  here  but  following 
in  the  steps  of  many  of  the  States  of  the  Union, 
both  young  and  old.  I  will  conclude,  sir,  by  say- 
ing that  these  are  some  of  the  reasons  why  I  differ 
from  the  report  of  a  majority  of  the  committee, 
and  present  to  the  Convention  this  article  of  my 
own.  The  main  object  that  I  have  had  in  view 
in  compiling  it  has  been  to  lessen  the  expense  oi 
la'v  suits — to  do  away  wi:h  unnecessary  and  pro- 
tracted litigation— to  render  justice  more  certain, 
and  to  procure  that  proper  degree  of  expedition  in 
relation  to  the  despatch  of  business  in  our  courts, 
which  is  so  exceedingly  desirable,  both  to  suitors 
and  to  the  public.  •  With  respect  to  the  report 
itself,  sir,  I  have  no  desire  to  see  it  adopted  by 
this  Convention,  unless  it  shall  be  found,  on  full, 
iair,  impartial,  and  careful  enquiry,  to  be  deserv- 
ing of  support.  And  now,  sir,  having  made  these 
necessarily  brief  explanations,  with  regard  to  my 
views  upon  this  highly  important  subject,  I  have 
only  to  repeat  that  I  (lifter  from  the  report  of  a 
majority  of  the  committee  with  regret,  and  to  say 
again  that  I  present  this  report  with  all  due  re- 
spect, and  with  a  proper  estimation  of  the  respon- 
sibility I  incur  in  doing  so. 

ARTICLE . 

Judicial  Department. 

&  1.  The  judicial  power  shall  be  vested  in  the  courts  es- 
tablished or  authorised  by  this  article. 

Court  of  Impeachments. 

k  2  There  shall  be  a  Court  for  the  trial  of  Impeach 
merits.  It  shall  be  composed  of  the  President  of  the  Se- 
iate,  and  the  Senators,  or  the  major  part  ol  them.  The 
lombers  ol  the  court  shall,  before  trying  any  impeach- 
n«ut  take  an  oath  and  affirmation  impartially  to  try  and 
oternvine  the  charge  in  question.  No  person  shall  be 
Convicted  without  two-thirds  of  the  members  present— 
Judgment  incase  of  impeachment  shall  extend  only  to  re- 
moval from  office  and  disqualification  to  hold  any  office  ol 
trust,  honor  or  profit  under  this  State,  but  the  person  con 
victed  shall  be  liable  to  indictment  or  punishment  accord- 
ing to  law.  Any  Judge  impeached  shall  be  suspended 
from  exercising  liis  office  till  his  acquittal.  The  Assem- 
bly shall  have  the  power  of  impeaching  all  civil  officers  of 
the  State  for  corrupt  practices  in  office  and  high  crimes 
and  misdemeanors,  but  a  majority  of  all  the  members 
elected  shall  concur  in  an  impeachment. 

Supreme  Court  of  Appeals. 

fc  3.  There  shall  be  a  Supreme  Court  of  Appeals.  It 
shall  be  composed  of  seven  (7)  judges,  three  ^of  whom 
shall  be  elected  by  the  qualified  electors  of  the  State,  and 
four  of  whom  shall  be  appointed  by  the  Governor,  with 
the  consent  of  the  Senate.  It  shall  have  appellate  jurisdic- 
tion only  It  shall  hold  at  least  four  terms  annually  ;  said 
terms  shall  be  held  at  difteient  places.  It  shall  appoint  its 
own  Clerk  who  shall  hold  during  the  pleasure  of  the 
court.  A  majority  of  said  judges  shall  constitute  a  quo- 
rum for  holding  a  court.  No  judgment  or  decree  shall  be 
reversed  without  the  votes  of  a  majority  of  all  the  judges 
of  said  court.  The  senior  in  years  of  said  judges  shall 
preside  in  said  court. 

Superior  Courts. 

&  4  The  State  shall  be  divided  into  six  judicial  districts, 
to  be  denominated  the  first,  second,  third,  fourth,  fifth  and 
sixth  judicial  districts,  of  which  the  city  of  New  York 
shall  form  the  first.  There  shall  be  a  Superior  Court  in 
each  of  the  said  districts,  which  shall  have  jurisdiction  in 
all  matters  of  law  and  equity  within  the  State,  and  such  su- 
pervisory and  other  power  over  inferior  tribunals  and  of- 
ficers within  its  district  as  now  exists  m  the  Supreme 
Court,  subject  to  the  appellate  jurisdiction  of  the  Supreme 


Court  of  Appeals.  It  shall  in  the  first  district  be  composed 
of  six  judges,  and  in  each  of  the  other  districts  of  four 
judges.  Two  of  the  judges  in  each  of  said  districts  shall 
be  elected  by  the  qualified  electors  of  such  district,  and 
the  remainder  of  said  judges  shall  be  appointed  by  the 
joint  ballot  of  the  members  of  the  Senate  and  Assembly. — 
The  Governor  shall  designate  one  of  the  judges  thus  elec- 
ted as  Chief  Justice  ot  the  Court  in  the  district  for  which 
he  was  elected.  Each  of  said  judges  shall,  during  his  con. 
tinuance  in  office  reside  in  the  district  for  which  he  was 
elected  or  appointed. 

§  5.  The  judges  of  the  Supreme  Court  of  Appeals,  and  of 
the  Supreme  Court,  may  hold  courts  in  any  district,  ui.der 
such  regulations  as  may  be  prescribed  by  law.  Each  of 
said  judges  shall  possess  the  power  now  possessed  by  any 
judge  of  the  Supreme  Court  or  the  Chancellor  at  Cham 
bers,  subject  to  regulation  and  modification  by  law.  Cir- 
cuit Courts  may  be  held  by  any  one  of  taid  judges;  and 
general  terms  ol  the  Superior  Court  in  any  district  by  any 
three,  of  them ;  and  special  terms  by  any  one  of  them  for  the 
hearing  and  disposition  of  matters  usually  heard  at  special 
terms. 

Courts  of  Oyer  and  Terminer  may  be  held  by  any  one 
of  said  judges  with  whom  in  said  court  shall  be  associated 
the  two  county  judges,  except  in  the  city  and  county  of 
New-York,  where  two  Aldermen  of  said  city  shall  be  as- 
sociated with  such  judge  in  said  court  ot  oyer  and  terminer- 

Provision  shall  be  made  by  law  lor  the  transler  of  causes 
from  one  district  to  another,  and  for  the  change  of  venue 
to  a  county  in  the  same  or  another  district,  as  the  ends  of 
justice  may  require. 

§6.  There  shall  be  a  clerk  of  said  superior  court  in  each 
district.  He  shall  be  elected  by  the  qualified  electors  of 
such  district,  and  shall  hold  his  office  for  four  years,  sub. 
ject  to  removal  by  said  couit  for  misconduct  or  incompe- 
tency.  He  shall  give  security,  it  required  by  law.  Pro- 
vi-ion  shall  be  made  by  law  lor  supplying  vacancies  in 
said  office. 

^  7.  The  judges  of  the  Supreme  Court  of  Appeals  and  of 
the  Superior  Courts  shall  hold  their  offices  for  ten  years. 
Vacancies  in  the  case  of  an  elected  judge  shall  be  sup- 
plied by  election  and  in  the  case  of  an  appointed  judge, 
by  appointment  as  provided  in  this  article.  Any  judge  of 
either  ot  said  courts  elected  or  appointed  to  fill  a  vacancy, 
shall  hold  his  office  for  i en  years. 

Provision  shall  be  made  by  law  for  cases  of  an  equality 
of  votes,  in  all  cases  of  election  authorized  by  this  aiticle. 

6  8.  Cases,  both  m  law  and  equity,  shall  be  triad  at  said 
Circuit  courts,  and  without  a  jury  .whenever  thepaitiesin 
interest  in  a  suit,  and  the  judge  holding  the  circuit,  assent 
thereto.  Provision  shall  also  be  mace  by  law  for  cases  in 
law  or  equity  not  propeily  triable  at  a  Circuit  Court. 
Provision  shall  also  be  made  by  law  for  the  performance  of 
the  duties  heretofore  performed  by  masters  in  chancery. 

Circuit  Court  and  Surrogate. 

§  9.  There  stoll  in  earh  county  be  a  county  court, 
which  shall  have  the  jurisdiction  now  existing  in  the  coun- 
ty  courts,  subject  to  modification  and  alteration  by  law  j 
and  also  such  equity  and  other  jurisdiction  as  may  be  con- 
ferred by  law. 

In  the  first  judicial  district,  there  shall  be  four  district 
judges  of  the  county  court ;  each  of  them  shall  alone  hold 
county  courts  in  said  district,  for  the  trial  and  disposition 
of  civil  cases.  In  criminal  cases,  two  of  the  Aldermen  of 
the  city  of  New  York  shall  be  associated  with  any  one  of 
said  district  judges.  In  each  of  the  other  judicial  districts 
there  shall  be  a  district  judge  of  the  county  court;  he 
shall  alone  hold  courts  for  the  trial  and  disposition  of  cv 
vil  cases  in  each  county  in  his  district.  In  criminal  cases 
the  two  county  judges  shall  be  associated  with  him.  The 
term  of  office  of  said  district  judges  shall  be  eight  years.— 
They  shall  be  appointed  by  the  joint  ballot  of  the  Senate 
and  Assembly.  Any  district  judge  appointed  to  fill  a  va- 
cancy, shall  hold  his  office  for  eight  years. 

The  district  judges  of  one  district  may  hold  courts  in 
anv  other  district,  and  shall  do  so  when  required  by  law; 
and  said  district  judges  may  be  authorised  by  law  to  hold 
circuit  courts. 

There  shall  in  each  county  be  a  first  judge  and  an  asso- 
ciate iudtce.  They  shall  be  elected  by  the  qualified  elec- 
tors of  such  county,  and  shall  hold  their  offices  tor  four 
vears  The  firstjudge  shall  have  and  exercise'the  powers 
and  duties  of  surrogate  in  his  county.  Each  of  said  coun- 
tv  iudces  shall  also  have  and  exercise  such  other  powers 
and  jurisdiction  as  may  be  conferred  by  law.  Provmon 
shall  be  made  bv  law  for  cases  of  vacancy  in  the  office  o] 
said  first  judge  and  associate  judge,  or  either  of  them,  and 


489 


lor  the  rase  of  the  absence  or  inability  of  them  or  either  of 
them,  to  perform  any  of  their  official  duties. 

k  10.  Appeals  from  the  judgments  or  decrees  of  a  county 
co  irt  shall  t>e  brought  to  the  superior  court  of  the  district 
in  which  said  d  unt>  is  s  tuated.  In  case  of  aflirraance,  no 
further  appeal  shall  be  allowed. 

Miscellaneous  Provisions. 

§  11.  Laws  may  be  passed  to  diminish  the  number  of  the 
juntos  dt"  the  supreme  court,  court  of  appeals,  and  of  the 
judges  of  the  superior  court,  and  of  the  district  judges  of 
tin-  c  .nnty  court  in  any  district,  if  the  number  hereby 
authorized  shall  be  unnecessary.  Laws  may  be  passed  to 
incn  a-e  the  number  .-(  the  judges  of  the  supreme  court  of 
appeais.  nn.l  the  judges  of  the  superior  court,  and  ihe  said 
diS'rict  judg'  s  iii  any  district  whenever  and  as  ofienas  the 
pu  ilic  int.  rests  demand .— Any  such  additional  judge  shall 
be  ele -ted  or  appointed  as  shall  be  pre*cribed  by  the  law 
authorizing  such  additional  judge..  The  districts  in  this 
article  mentioned  may  be  altered  by  law  whenever  and  as 
of  en  as  the  public  interests  demand.  No  law  authorizing 
a  diminution  or  increase  in  the  number  of  judges  or  the 
a>u-ra  ion  of  any  district  sh^ll  be  passed  without  the  votes 
of  two-thirds  ot  the  mi-mbers  elected  to  each  branch  of  the 
legislature,  and  no  such,  law  shall  aflect  any  judge  then  m 
omce. 

^  12.  The  Judges  in  this  article  mentioned,  shall  receive 
stated  annual  salaries.  The  salary  of  no  Judge  shall  be 
diminished  during  his  continuance  in  office.  The  said 
Judges  shall  receive  no  fees  or  perquisites  of  office.  No 
one  ot  th,-m  shall,  during  his  continuance  in  office,  hold 
any  other  office  under  this  state,  and  all  votes  for  any  of- 
fice (except  the  office  of  Ju  Ige)  given  by  the  legislature  or 
the  peo,.le,  or  any  Judge  while  in  office,  shall  be  void. 

No  provis  on  of  this  section  shall  apply  to  the  said  As- 
sociate Judges. 

&  13.  The  Governor  shall  remove  any  of  the  said  Judges, 
on  the  address  ol  two  thirds  of  the  members  of  each  branch 
of  the  legislature;  Providi-d,  however,  that  tne  cause  or 
causes  shlul  be  stated  in  full  in  such  address,  and  entered 
at  large  on  the  journals  of  each  house;  and  the  Judge  in 
tended  to  be  removed  shall  have  reasonable  notice  of  the 
same,  and  shall  be  admitted  to  a  hearing  in  his  defence,  be- 
fore such  shall  be  adopted.  In  every  case  ot  such  address, 
the  vote  shall  bo  taken  by  ayes  and  nays  and  be  entered 
on  the  journals  ofeach  House. 

&  14.  Laws  may  be  passed  lor  the  creation  of  local  courts, 
•with  jurisdiction  inferior  to  that  of  the  County  Court,  and 
for  the  continuance  of  such  courts  now  existing. 

Justices  of  the  Peace. 

&  15.  Justices  of  the  peace  shall  continue  to  be  elected  as 
they  are  now  elected.  Their  number,  powers  and  duties, 
•hall  continue  as  they  now  are,  subject  to  modifications 
and  alterations  therein  by  law.  Laws  shall  be  passed  to 
abolish  appeals  as  now  authorised  from  courts  of  justices 
of  the  peace,  and  for  further  trial  and  final  decision  in  such 
cases  in  the  same  town  when  the  first  trial  was  had,  or  in 


any  adjoining  town. 

Respectfully  submitted, 


C.  P.  KIRKLAND. 


. 


Mr.  KIRKLAND  wished  again  to  call  the  at- 
tention of  the  Convention  to  one  great,  material 
difference  between  the  report  of  the  committee 
and  his  own.  In  the  report  of  the  committee, 
there  is  no  provision  made  for  county  courts ; — 
whilst  in  his,  there  was  a  provision  for  this  im- 
portant and  indispensably  necessary  tribunal.— 
His  firm  conviction  was  that  the  immense  busi- 
ness of  the  State  could  not  be  transacted  without 
its  aid. 

Mr.  BASCOM  said  that  however  much  he  re 
gretted  the  necessity  of  increasing  the  number  of 
reports  from  the  judiciary  committee,  he  would 
detain  the  Convention  with  no  other  apology 
than  to  say  that  a  sense  of  duty  impelled  him  to 
submit  another  minority  report.  He  objected 
particularly  to  that  part  of  the  report  that  sought 
to  perpetuate  exclusive  chancery  jurisdiction  du- 
ring the  continuance  o£  the  Constitution.  Here- 
tofore this  jurisdiction  had  been  created  and  con- 
tinued by  law,  and  could  be  by  law  limited  or  de- 
stroyed. He  objected,  too,  to  the  mode  proposed 

r  the  appointment  of  the  judges.     He  objected 

36 


also  that  the  proposition  of  the  committee  does 
not  distribute  the  sessions  of  the  court  sufficient- 
.y  throughout  the  State.  It  provides  for  a  ses- 
sion of  the  court  in  each  of  the  eight  districts. — 
He  desired  that  bank  sessions  should  be  held  in 
all  or  nearly  all  the  counties  of  the  State.  He 
)bjected  also  to  the  power  proposed  to  be  given 
to  the  legislature,  not  only  to  increase  the  judges 
of  the  proposed  courts,  but  to  create  and  multiply 
inferior  courts  without  limitation.  Entertaining 
these  objections,  he  had  felt  it  his  duty  to  pre- 
pare an  article,  which  he  now  respectfully  asked 
leave  to  submit : 

ARTICLE . 

§  1.  A  court  for  the  trial  of  impeachments  shall  consist 
of  the  I'resident  of  the  Senate,  the  Senators  or  a  major  part 
o(  them,  and  the  judges  of  the  Supreme  Court  or  a  major 
part  of  them,  whose  term  of  office  shall  be  within  two 
years  and  not  within  one  year  of  its  expiration  And  the 
Senators  and  judges  taking  their  seats  in  the  said  courtfor 
the  trial  of  an  impeachment,  shall  continue  members 
thereof  until  the  same  shall  be  terminated,  notwithstand- 
ing the  expiration  of  their  term.  No  officeragainst  whom 
an  impeachment  may  have  been  presented  shall,  at  any 
time,  be  a  member  of  the  said  court.  The  impeachment  of 
an  officer  shall  suspend  him  from  the  discharge  of  his  off. 
cial  functions. 

§2.  The  Assembly  shall  have  power  of  impeaching  all 
civil  officers  ot  this  State  for  mal  and  corrupt  conduct  in 
office  and  high  crimes  and  misdemeaners,  by  a  majority  of 
all  the  members  elected  concurring. 

Judgment  in  cases  of  impeachment  shall  not  extend  fur 
ther  than  the  removal  from  offices  and  shall  not  be  a  bar 
to  an  indictment. 

(5  3.  All  other  judicial  power  shall  not  be  vested  in  justices' 
courts,  a  Supreme  court  and  in  Surrogates. 

§  4.  Justices  ot  the  peace  shall  be  chosen  by  electors  in 
such  districts,  in  such  numbers  and  for  such  periods  of 
time,  and  their  powers,  jurisdiction  and  duties  shall  be 
such  as  are,  or  may  be,  prescribed  by  law. 

§  5-  The  supreme  court  shall  have  such  powers  and  ju- 
risdiction as  shall  be  prescribed  by  law. 

There  shall  be  thirty-two  judges  thereof,  one  of  which 
shall  be  elected  by  the  electors  of  each  of  the  Senate  dis- 
tricts, at  a  special  election  at  which  no  other  officer  shall 
be  chosen. 

The  said  judges  shall  hold  their  office  for  four  years,  ex- 
cept a  part  of  those  first  to  be  chosen.  Vacancies  shall  be 
filled  at  special  elections  to  be  ordered  by  the  Governor, 
and  judges  chosen  to  fill  vacancies  shall  hold  only  for  the 
unexpired  term. 

§  6.  Four  of  the  Senate  districts  shall  compose  a  judi- 
cial district,  and  the  judges  first  to  be  chosen  in  a  judicial 
district  shall  at  a  time  and  place  to  be  designated  by  the 
Governor,  meet  and  draw  for  terms,  of  one,  two,  three  and 
four  years.  The  term  of  the  judges  chosen  in  the  judicial 
districts,  shall  commence  in  different  months  of  the  year« 

(5?  There. shall  be  a  circuit  session  by  one  of  the  judg- 
es of  the  supieme  court  in  each  of  the  counties  of  the  ju. 
'licial  district,  as  often  as  the  judges  thereof  shall  deem 
proper,  for  the  trial  by  jury  of  ah  ib.surs  that  may  be  join- 
ed in  civil  and  criminal  causes,  and  for  the  rendering  of 
final  judgments  in  crimin«l  causes.  .For  the  tiial  and  deci 
sion  of  criminal  causes  there  shall  be  associated  with  the 
ju.lge,  the  surrogate  and  one  justice  oi  the  peace  of  the 
county,  or  in  the  absence  ot  the  surrogate  two  justi- 
ces of  the  peace 

§8  There  shall  be  bank  sessions  of  riot  le^s  than  three 
nor  more  than  four  judges  of  the  Supreme  Court  in  the 
several  counties  of  the  julicialdistricts,  at  such  times  and 
pUc.es  as  to  the  judges  thereof  shall  seem  proper,  to  review 
•  he  decisions  and  proceedings  of  the  circuit  .sessions,  and  to 
discharge  such  other  duties  in  relation  to  the  administra 
lion  o!  justice  and  the  establishment  of  rights  as  shall  be 
prescribed  by  law. 

§9.  There  shall  be  appeal  sessions  composed  of  the 
judges  whose  term  of  office  shall  be  within  one  year  of  its 
termination,  in  the  seveial  judicial  districts  of  the  State  at 
*uch  times  and  places  as  ohall  be  appointed  by  the  said 
j  idge«,  unless  said  times  and  places  shall  be  fixed  by  law, 
jt  which  the  decisions  of  the  sessions  in  bank  may  be  re- 
viewed aud  such  other  judicial  powers  exercised  as  shall 
be  prescribed  by  law. 

^  10.  Surrogates  of  counties  shall  be  chosen  by  the  elect- 
ors thereof,  and  shall  hold  their  offices  for  lour  years. 


490 


Their  powers  and  jurisdiction  over  the  estates  of  de 
ceased  persons  and  other  matters,  shall  be  such  as  are,  or 
maj  be  prescribed  by  law. 

The  Legislature  may  provide  that  issues  joined  in  any 
proceedings  before  Surrogates  may  be  tried  ot  the  Circuit 
Sessions,  and  that  any  oi'  the  proceedings  of  Surrogates 
may  be  reviewed  by  the  Supreme  Court. 

§11.  The  Clerks  of  the  several  counties  of  this  state  shall 
be  clerks  of  the  Supreme  Court  with  such  powers  and  du 
ties  as  shall  be  prescribed  by  law. 

()  12.  A  clerk  of  the  Appeal  sessions  shall  be  appointed 
by  the  judges  thereof,  who  shall  hold  his  office  at  the 
pleasure  of  the  said  judges,  and  shall  receive  such  com- 
pensation as  shall  be  prescribed  by  law. 

§  13.  The  judges  of  the  Supreme  Court  shall  receive 
no  tees  or  perquisites  of  office,  other  than  a  fixed  salary; 
and  any  alteiation  thereof  shall  only  effect  those  to  be 
thereafter  chosen;  but  an  allowance  for  travelling  expen- 
ses, in  addition  to  a  flxed  salary,  may  be  made  to  a  judge 
required  to  discharge  judicial  duties  without  his  judicial 
district.  Respectfully  submitted. 

ANSEL  BASCOM. 

Mr.  SIMMONS  said  he  had  no  minority  report 
to  make,  but  he  wished  to  define  his  position. 
Some  three  or  four  years  ago,  it  was  known  to 
the  Convention,  he  was  instrumental  in  attempt- 
ing to  procure  the  action  of  the  legislature  on 
amendments  to  the  constitution  ,which  were  nearly 
adopted.  Those  amendments  were  for  the  im- 
provement of  our  judicial  system,  some  of  them 
agreeing  with  and  others  differing  from  those  now 
proposed,  and  therefore  the  Convention  would 
excuse  him  for  taking  a  few  minutes  to  make  an 
explanation.  He  had  assented  to  the  majority  re- 
port being  brought  in  for  consideration,  and  if  he 
could  not  get  any  thing  better  he  should  go  for  it, 
for  he  held  it  to  be  the  duty  of  every  patriotic  man 
not  to  oppose  all  that  was  offered  because  he  did 
not  get  as  much  as  suited  his  inclinations.  He 
confessed  here  were  some  radical  differences  of 
opinion,  between  the  majority  report  and  his  own 
views  ;  and  although  he  must  frankly  confess  that 
the  very  beautiful  exposition  of  it  by  the  chair- 
man (Mr.  RUGGLES)  had  made  it  appear  a  little 
better  to  him  than  it  did  last  evening,  yet  there 
were  some  things  he  could  not  approve,  except 
in  the  alternative  that  he  could  not  get  anything 
better.  He  should  go  for  it  in  preference  to  any 
thing  worse  if  he  could  make  the  distinction. — 
He  would  stale  briefly  surneot  the  things  to  which 
he  objected  in  thi.s  report,  and  a  tew  of  the  par- 
ticulars in  which  he  differed  from  the  committee. 
.;•;•  First,  then,  as  to  the  in>>de  of  appointment  of  jud- 


ges. 


He  could  not  think  that  the   deliberate  and 


well  considered  and  settled  opinion  of  the  people 
of  this  state  was  in  favor  of  the  election  of  the 
judges  of  the  Supierne  Court.  And  yet  he  confes- 
sed lie  was  of  opinion  that  the  people  were  in  fa 
vor  of  some  change  by  which  they  shall  De 
brought  nearer  to  the  people,  and  the  state  courts 
more  diffused  and  less  centralized  than  the  system 
we  now  have.  And  perhaps  some  such  method 
might  be  hit  upon  as  to  that  adopted  in  Vermont, 
where  the  election  was  by  the  joint  ballot  of  the 
two  houses  of  the  legislature.  But  the  present 
mode  would  satisfy  him  better  than  a  resort  to 
popular  elections  for  judges  of  the  Supreme  Court, 
if  they  were  to  hold  office  tor  only  the  short  term 
of  eight  years.  Then  as  to  the  tenure  of  office. — 
He  could  not  think  that,  the  best  interest  of  the 
state  uas  consistent  with  so  short  a  term  as  eight 
years,  considering  the  little  inducement  it  would 
be  for  gentlemen  who  were  competent  to  fill  the 
highest  judicial  offices  of  the  state.  He  would  not 


now  enter  info  the  discussion  of   this   question — 
he   would  merely  suggest  as  an  excuse  for  his 
opinion,  that  the  best  men — those  very  persons 
who  ought  to  fill  such  places,  would  be  the  least 
likely  to  consent  to  take  them  for  so  very  short  a 
term.     He   had   no  objection   to  an  election  by 
the  people,  provided  the  tenure  of  office  could  be 
made  long  enough,  and  the  incumbents  could  be 
made  ineligible  for  another  term,  and  could  do 
as  well  for  themselves   in  that  position  as  they 
could  in   other  employments.     If  this  could  be 
secured,  he  thought  an  election  by  the  people 
would  be   the  best  mode  of  appointment.     He 
was  for  an  election  by  the  people  if   they  could 
get  the  term  right,  and  that  he  believed  was  the 
opinion   of  the  best  men  in  the  state.     He  would 
like  the   term    till  sixty-five  years  of  age ;  but 
if  that  was  too  long,   then  for  a  term  of  years 
long   enough    to    induce    the    best    talents    to 
accept    the    place.     Without    this    security  we 
should  effectually  destroy  the    judiciary.     And 
next,  as  to  the  organization  of  these  courts.     In 
regard  to  the  number  of  judges,  he  did  not  mate- 
rially differ  from  the   committee.     He  had  first 
thought  there    should    be   thirty-two ;  or  some 
number  from  thirty  to  forty,  which  could  be  best 
arranged  in  judicial  districts   tor  the   purposes   of 
business.     Then  there  were  nisiprius  duties  and 
bench  duties.     He  thought  there  should  no  long- 
er be  a  divorce  between  the  subtleties  and  niceties 
of  book  learning  and  practical  knowledge  derived 
from  practice  and  experience  in  the  trial  of  causes 
which  draws  more  largely  on   common  sense. — 
Those   two  streams   of  knowledge   must   have   a 
confluence   in  forming  the  mind  of  the  judge. — 
The  committee   were  all  unanimous  as  to   that. — 
And  then  there  was  the  mode  ot  taking  testimony 
in  equity  cases.     They   were  ail  agreed   also  on 
the  necessity  of  a  change  there.     But  then  came 
a  point  on    which  he  had  lo  differ  from  the   com* 
mittee,  and  he  hoped  the  Convention  would    view 
it  in  the  s^me  light  with  himself,  when  the  sub- 
ject came    to  be    fully  considered.     He    thought 
that  having  this  great  expansion  of  judges  of  from 
thirty-two  to  thirty- six,  and  arranged  on  a  kind  <i 
spirit  level  system  over  the  whole  state, would  break 
down  the  moral  power  and  influence  of  the  court; 
and  that  it  was  necessary  to  provide  some  head  to 
be  looked  up  to,  whose  opinions  should  be  consid- 
ered as  authentic  and  undisputed  law,  and  whose 
decisions  should  be   received  as  legal  oracles, 
which   should   have  a  moral  weight  beyond  its 
mere   power  of  legal  coercion.     He  feared  we 
should,  by  such  an  expansion,   have  a  a  system 
which  would  become  shallow  in  proportion  to  its 
breadth.     He  wished   to  see   about  one-half  this 
number  of  judges,  say  sixteen,   formed  into  state 
courts  of  general  concurrent  jurisdiction,  and  so 
raised  above  the  rest  as  to  be  considered  the  great 
expositors  of  the  law — whose  decisions  should  be 
published,  and  referred  to  as  precedents,  and  sus- 
Lain  the  reputation  of  our  reports.     And  then   he 
wished   to  have  the  other  sixteen  judges  so  ar- 
ranged as  to  form   a  system   of  superior  courts, 
something  like  the   superior  court  in  the  city  of 
New  York  ;  but  local,  as  contradistinguished  from 
the  state  courts,  and  supplying  the  places  of  the 
county  courts.     With  such  a  system,  he  thought 
the  people  would  be  satisfied.     It  was  evident  that 
n  the  improvement  of  our  judicial  system,  two 


491 


great  points  were  necessary  to  be  attained.  One 
was,  the  enlargement  of  the  judicial  force,  so  as 
to  make  it  adequate  to  the  growing  wants  of  the 
state,  whose  population  and  business  had  now  out- 
grown its  judicial  institutions;  and  ihe  other  wa> 
a  more  equal  arrangement  of  these  forces  locally 
over  the  state — so  that  while  enlarging,  weshouki 
avoid  centralizing  our  courts  too  much.  It  was 
desirable  to  avoid  both  extremes.  One  of  the 
great  inconveniencies  in  this  state,  had  been,  that 
the  courts  in  bank  had  heeritoo  much  centralized; 
and  thus  the  suitors  in  the  extremities  of  the  state 
had  been  obliged,  in  getting  their  law  business 
done,  lo  be  subject  to  double  expenditures.  They 
had  to  transport  their  causes,  papers  and  counsel, 
one  or  two  hundred  miles  to  the  place  where  the 
court  eat.  Now  in  improving  this  system,  it 
seemed  to  him  that  they  could  accomplish  both 
objects,  of  keeping  up  the  state  courts,  as  hereto- 
fore, in  the  prominent,  central  points  of  the  state, 
and  giving,  at  the  same  time,  more  expansion  to 
the  judiciary,  by  creating,  and  distributing  to 
*•  other  parts  ot  the  state,  an  equal  number  of  local 
superior  courts.  By  the  erection  of  these  of  equal 
grade,  in  effect,  with  the  state  couits,  they  would 
have  secured  ail  the  substantial  objects  of  equal 
ization  as  well  as  enlargement  of  the  courts  so 
far  as  necessary  for  practical  purposes — all  the 
advantages  of  teetd-  courts  distributed  so  as  to 
accommodate  all  without  losing  or  lessening  the 
advantages  of  the  state  Courts  as  heretofore  or- 
ganized. We  now  have  eleven  supreme  court 
judges  and  four  equity  judges  in  the  court  of 
chancery.  Now  with  one  additional  supreme 
court  judge,  this  was  judicial  force  enough  for  the 
state  courts.  The  twelve  judges  could  be  arranged 
into  sections  or  divisions  of  four  each,  for  the  busi- 
ness of  courts  in  bank,  and  all  ride  the  circuits  in 
vacations  to  hold  nisi  prius  courts;  while  the  four 
equity  judges  might 'constitute  a  slate  court  of 
equity  to  sit  at  four  different  places  in  bank,  and 
each  judge  in  vacation  ride  his  equity  circuit  and 
take  plea  testimony.  Then  let  the  additional  six- 
teen judges  be  distributed  through  the  state  under 
a  similar  organization  of  three  superior  courts  or 
sections  of  a  superior  court  of  law,  and  the  other 
four  should  constitute  the  superior  court  of  equity : 
ii  the  terms  in  bank  of  these  superior  courts  should 
be  located  at  different  points  from  those  of  the  su- 
preme court,  you  would  attain  all  the  benefits  of 
equal  distribution  in  bringing  justice  home  to  the 
suitors,  while  you  would  save  all  the  advantages 
and  reputation  ot  the  state  courts  as  to  v\  eight  of 
character  and  moral  influence,  /Mr.  S.  thought  it 
would  not  do  to  break  up  our  state  judiciary  into 
mere  provincial  or  district  courts.  But  then  he 
must  candidly  admit  that  the  point  on  which  he 
most  essentially  differed  from  the  proposition  bro't 
before  the  Convention  by  the  majority  of  the  com- 
mittee and  by  each  of  the  minority  reports  was 
one,  that,  unless  he  was  very  much  mistaken,  this 
Conventon  would  ultimately  adopt;  and  that  is,  the 
separation  of  the  law_and_eguiityjurisdiction  into 
different  courts  as  heretofore,  and  not  their' union 
inthe  same  court.  Mr.  S.  wished~lb'  organize  the 
juoTclaryso -w-to  have  1-4  part  of  the  state  courts 
serve  as  equity  courts,  and  the  other  3-4  as  law 
courts.  He  could  not  for  a  moment  conceive  that 
it  was  wise  and  proper  in  us  to  blend  these  juris- 
dictions at  the  very  time  when  other  states  as  far 


as  he  had  been  able  to  ascertain,  were  moving  in 
an  opposite  direction,  and  were  more  and  more 
separating  the  equity  from  the  law  courts  with  a 
view  to  obtain  all  the  advantages  arising  from  a 
sub- division  of  labor  and  improvements  of  the 
science — he  could  not  think  it  would  be  wise  in 
us,  in  opposition  to  the  declared  opinions  of  every 
judge  he  had  read  of,  from  Lord  Bacon  down  to 
Chancellor  Kent  and  Judge  Story — to  amalgamate 
those  two  jurisdictions.  He  thought  it  highly  dan- 
gerous to  convert  this  standing  army  of  judges 
into  so  many  chancellors,  with  all  the  arbitrary 
power  ol  that  court.  We  had  long  ago  attained  to 
the  separation,  and  he  thought  we  had  better  hold 
to  what  we  had  got.  We  had  got  a  certainty  in 
common  law  courts,  and  jury  trials,  and  we  ought 
not  t6  hazard  this  security  by  mixing  them  up 
with  equity  powers  in  the  same  hands.  There 
were,  however,  a  good  many  things  in  the  majori- 
ty report  which  he  should  sustain,  and  he  should 
seek  to  make  it  as  much  better  as  possible.  He 
did  not  think  it  advisable  to  bring  in  a  minority 
report.  He  knew  the  disadvantage  in  a  delibera- 
tive body  of  confusing  the  mind  by  double  images 
of  varied  projects;  and  being  aware  that  several 
reports  were  coming  in,  he  felt  that  it  would  be 
better  to  go  in  this  qualified  way  with  the  majo- 
rity, and  rely  on  his  good  fortune  to  carry  amend- 
ments, adapted  to  his  purpose,  in  the  committee 
of  the  whole  or  in  the  Convention. 

Mr.  LOOMIS  said  that  perhaps  it  would  not  be 
improper  if  he  should  follow  the  example  of  his 
asaociates  on  the  committee,  who  had  felt  it  to 
be  their  duty  to  address  the  Convention  and  define 
their  positions  in  this  matter.  He  desired  to  be 
understood  as  concurring  with  cordiality  in  the 
main  principles  and  leading  features  of  the  report 
of  the  committee  presented  by  its  chairman, 
to  the  Convention  this  morning.  In  saying  this, 
however,  he  desirtd  to  be  understood  as  not  indi- 
cating an  opinion  that  the  report  of  the  majority 
was  perfect  in  its  details,  or  that  it  contained  all 
that  he  should  desire  to  see  embodied  in  the  Con- 
stitution, nor  yet  that  some  matters  of  minor  im- 
port contained  in  it  might  not  be  changed  with 
advantage,  and  he  should  feel  the  same  liberty 
which  had  been  expressed  by  his  associates  of 
the  committee,  to  ask  a  modification  of  any  part 
of  it  when  it  should  corne  under  consideration. — 
There  was,  however,  one  further  view  of  the 
matter,  and  it  was  the  principal  inducement  lor 
him  to  address  the  Convention  on  this  occasion — 
neither  the  report  of  the  majority  nor  that  of  any 
member  as  a  minority,  as  far  as  he  had  heard 
them,  contained  what  seemed  to  him  a  very  de. 
sirable  provision — a  plan  for  another  court,  a\ 
humbler  court— a  court  of  little  pretension  but  of 
great  utility — one  much  more  needed  in  the  trans- 
action  or  ordinary,  necessary  business,  than  the 
ligher  tribunals.  He  desired  lo  see  something 
of  this  kind  provided  for  in  the  Constitution, 
and  for  that  purpose,  he  should  submit  be- 
bre  he  set  dovvn,  three  sections  taken  from  a 
Judicial  system,  which  he  had  drawn  up  in  the 
progress  of  the  labors  of  the  judiciary  committee, 
as  others  had.  He  should  not  submit  an  entire 
plan,  because  he  concurred  in  the  report  of  the 
committee  in  its  general  features,  but  only  as  to 
his  branch  of  it,  relating  to  a  locjil  tribunal.  He 
would  not  deem  this  a  proper  occasion  to  propose 


492 


any  amendment   to  the  report  of  the   committee 
bnt  raiher    to  supplv  what  seemed  to   him  would 
be  a   valuable    addition.        He   deemed    it    due 
fo    the    Convention    and    to   himself,    that    en- 
tertaining   the  view    he   did,  of  the  necessity  of 
a  local  tribunal   for  the  transaction    of  business 
in  the  country,  near  the  homes  of  persons  having 
business  to  do,  he  should   submit  it  in   advance 
that  it  might  be  examined  before  the  subject  came 
up  for  consideration.     He  proposed  to  establish  a 
simple  county  tribunal,   to  be   confined   wholly 
within  the  county— to  have  jurisdiction   of  ap- 
peals and  certiorari  from  justices  courts,  and  also 
of  a  large  class  of  neighborhood  matters,  such  as 
the  partition   of  lands,  sales  of  infant's  estates, 
equity  powers  over  lunatics  and  drunkards  estates, 
removal  of  tenants  holding  over,  and  many  other 
cases.     There  was  a  large  amount  of  this  kind  of 
business  necessarily  arising  in  every  county, which 
ought  to  be  transacted  in  the  neighborhood  where 
it   exists.     He  propos3d  in    the  three   sections; 
which  he  should  offer,  to  provide  for  the  election 
of  officers  to  be  called  county  justices,  to  have 
jurisdiction  of  the  matters  to  which  he  had  allu- 
ded.    He  would  have  two  such   county  justices 
in  every  county,  and  more  than  that  in  the  larger 
counties,  to  be  determined  by  the  legislature,  as 
the  wants  of  the  business  might  require,  but  not 
to  exceed  one  for  every  ten  thousand  inhabitants  in 
such  county.  He  did  not  propose  that  these  officers 
should  hold  county  courts  lor  the  trial  of  causes, 
as  courts  of  common  pleas  are  held,  with  all   the 
form  and   expense    of  the   attendance  of  sheriff, 
crier  and  county  juries — but  to  permit  all  trials  of 
issues  of  that  kind  to  be  had  before   the  tribunal 
reported  by  the  committee,  at  their  circuit  courts. 
But  he  designed  this   court  to  perform  a   kind   of 
county  circuit — to  try  appeals  from  justices  courts, 
in  the  town  where  they  were  first  tried— or  to  al- 
low  parties   to   appeal  to  this  court  before  tried 
so  as  to  have  it  tried  in  the  first  instance  before  a 
county   justice,   and  save  a  second   trial.     They 
Anight  hold  law  terms  together,  if  desired  to  settle 
such  questions  as  might  arise  before  them  not  re- 
quiring a  jury  ;  but  it  seemed  to  him  well  to  have 
a  set  of  county  judges  who  would  go  to  the  place 
where  parties,  jurors  and  witnesses  live  to  try  the 
causes  as  they  might  arise,  rather  than   incur  the 
expense,  public  and  private,  of  a  general  attend- 
ance of  parties,  witnesses  and  jurors  at  the  county 
seat,  wailing,  perhaps,  day  after  day,  and  often   a 
week  and  more,  for  an  opportunity  to  be  heard  in 
these  little  matters.     The  sections  he  should  pre- 
sent were   designed  to  effect  these    objects,    but 
to  leave  the  particular  manner  to  the  Legislature 
He  felt  constrained  to  remark  that  he   differed 
from  two  of  his  associates  who  had  addressed  the 
Convention  in  presenting  their  several  plans,  as 
to  the  construction  which  they  had  placed  upon 
one  part  of  the  report  of  the  majority  of  the  com- 
mittee.    He  had  understood  two  of  those  gentle- 
men to  attribute  to  that  report  that  it  perpetuated 
the  distinction  between  law  and  equity  jurisdic- 
tion.    Such  he  was  confident  was  not  the  inten 
tion  of  the  majority  in  making  that  report.     On 
the  contrary,  and  he  spoke  from  his  knowledge 
as  a  member  of  that  committee  and  of  that  majo- 
rity, it  was  not  the  intention  of  the  report  of  the 
majority  to  perpetuate  that  distinction.     It  refers 
to  the  tribunals  of  law  and  of  equity  as  matters 


>ast.  It  provides  for  a  common  tribunal  to  have 
general  jurisdiction  over  the  whole  matter,  unit- 
ng  them  as  to  the  court,  but  leaving  the  matter 
)f  blending  the  practice  or  not,  to  the  future  and 
:o  experience.  It  was  the  intention  of  the  com- 
mittee to  leave  it  in  this-  form  and  to  avoid  any 
>rovision  by  which  the  practice  hitherto  distinct, 
should  be  necessarily  kept  separate  or  necessarily 
combined.  The  system  if  adopted  and  left  untram- 
meled  by  any  constitutional  restrictions  in  that 
respect  would  work  out  its  own  result.  He  propo- 
sed that  these  county  justices  should  hold  their  offi- 
ces for  four  years,  and  that  provision  should  be 
made  by  law  securing  their  rotation  in  office,  so 
hat  all  should  not  be  elected  at  the  same  time  after 
he  first  electioftr-With  this  system  of  a  local  tribu- 
na>fof  the  transaction  of  the  business  of  the  kind 
*e  had  referred  to,  it  seemed  to  him  that  the  sys- 
em  proposed  by  the  committee,  of  having  but  one 
State  court  to  try  all  causes  usually  tried  at  cir- 
cuit and  county  courts,  and  combining  law  and 
equity  jurisdiction,  possessed  great  advantages 
over  other  plans  proposed.  It  would  prevent  de- 
ay,  as  all  causes  would  be  tried  in  the  same 
court,  and  all  issues  joined  in  the  county  might 
be  tried  at  the  first  circuit.  It  saves  the  necessity 
f  drawing  distinction  between  the  jurisdiction 
of  two  or  more  courts,  and  for  equalizing  their 
msiness.  But  he  would  not  here  undertake  to 
shew  its  advantages.  In  respect  to  courts  of  jus- 
ices  of  the  peace  as  now  organized,  he  did  not 
propose  to  take  away  or  change  their  jurisdiction 
— but  he  saw  no  objection  to  permitting  litigated 
causes  in  that  court  to  be  tried,  if  one  of  the  par- 
ties desired,  in  a  higher  court,  in  which  one  or 
h  of  the  parties  might  have  more  confidence. 
Parties  litigant  often  suspected  the  bias  of  a  Jus- 
tice of  the  Peace,  before  whom  they  are  required 
to  have  their  rights  adjudicated.  This  was  all 
the  explanation  he  deemed  it  material  to  give : 
and  when  the  subject  should  come  under  con- 
sideration, he  intended  to  move  then  three  sec- 
tions, which  he  now  submitted,  with  that  excep- 
tion or  rather  with  that  addition.  He  again  re- 
peated that  he  should  cordially  support  all  the 
reading  features,  if  not  the  entire  report  of  the 
majority  of  the  committee.  Mr.  L.  then  submit- 
ted the  three  following  sections  : 

— .  There  shall  be  established  a  County  Court  in  each 
county,  to  consist  of  two  county  justices  and  as  many 
more  as  the  business  of  the  county  may  require,  but  such 
number  shall  not  be  increased  so  as  to  exceed  one  county 
Justice  for  every  10,000  inhabitants.  Such  justices  shall 
hold  their  office  for  lour  years.  The  legislature  shall  fix 
the  number  for  such  county  at  the  first  session  alter  the 
adoption  of  this  constitution,  and  such  number  may  be  in- 
creased or  diminished  within  the  above  prescribed  limits 
at  every  fifth  session  of  the  legislature  thereafter  and  at  no 
other  time. 

^  —  The  county  courts  shall  have  such  original  and  ap- 
pellate jurisdiction  as  may  be  prescribed  by  law,  and  the 
trial  of  issues  of  fact  and  of  appeals  from  justices' courta 
may  be  had  before  any  of  such  county  justices  in  any 
town  where  the  parties  reside  or  the  cause  of  action  arose, 
01  in  an  adjoininggtown  or  elsewhere  as  maybe  directed 
by  law.  Two  or  mare  law  terms  shall  be  held  before  such 
justices  in  every  county  in  each  year.  The  legislature 
may  confer  on  one  or  more  of  the  county  justices,  the  ju. 
dicial  powers  and  duties  of  surrogate  and  such  other  pow- 
ers and  jurisdiction  in  law  and  law  and  equity,  subordin- 
ate to  the  supreme  court,  as  it  may  deem  expedient. 

(. The  county  justicts  shall  be  elected  by  the  people 

oi  the  several  counties,  at  such  tin  es  and  in  f  uch  manner, 
to  be  prescribed  by  law,  as  shall  ensure  rotation  in  office ; 
and  for  that  purpose,  part  of  the  justices  at  first  elected  ia 


493 


each  county,  shall  hold  for  periods  less  than  four  years,  to 
be  determine  1  between  them  by  lot,  under  the  supervision 
of  thfi  board  of  supervisors.  Vacancies  occurring  by 
death  or  otherwise,  shall  '«»  rilled  for  the  residue  ol  the 
term  unexpired,  by  the  appointment  by  the  board  of  su 
pervisors 

Mr.  BROWN  said  he  desired  that  the  report  of 
the  committee  should  go  out  to  the  country,  ac- 
companied by  some  views  of  his  own,  in  regard  to 
the  subjects  it  embraced,  and  with  the  indulgence 
of  the  Convention,  he  would  present  them  now. 
With  the  proposition  of  the  honorable  member 
from  Herkimer,  io  reform  the  Justices'  courts,  he 
could  not  concur.  As  now  organized,  these  courts 
had  not  been  ihe  subject  of  any  just  complaint. — 
They  settled  many  corvroversies,  ami  disposed 
of  a  large  amount  of  litigation,  with  a  very  small 
consumption  of  the  time  of  suitors,  jurors  and 
witnesses,  and  no  expense  whatever  to  the 
public.  He  was  not  aware  ot  any  useful  reform 
which  could  be  applied  to  them,  and  he  would, 
therefore,  suffer  them  to  remain  as  they  now  are, 
subject  to  such  modifications  as  time  and  future 
experience,  may  point  out.  In  regard  to  the 
eurr' gates's  courts,  he  would  have  them  substan- 
tially as  ;hey  now  are,  with  two  exceptions.  The 
proot  of  a  will  before  the  surrogate,  so  far  as  real 
property  is  concerned,  was  of  no  value  whatever. 
Months — he  might  say,  years — were  some  times 
consumed  in  the  proof  of  wills  at  great  expense 
to  the  parlies  in  interest,  and  in  respect  to  any 
real  estate  claimed  under  or  affected  by  the  in- 
strument, the  question  was  as  open  to  be  contro- 
verted  after  the  decree  as  if  was  before.  He 
would,  therefore,  remove  this  defect,  by  trans- 
ferring all  issiu-;*  upon  the  due  execution  of  wills 
or  codicils  as  soon  as  they  were  formed,  into  the 
supreme  co.irt  for  trial  and  final  adjudication. — 
The  other  exception  which  he  took,  was  to  the 
manner  of  the  surrogate's  compensation.  This 
is  derived  from  fees,  taken  from  suitors  and  the 
estates  of  deceased  persons,  taxed  usually  by 
the  surrogates  themselves.  Such  a  mode  of 
compensation  leads  to  many  abuses,  and  much 
injustice — visiied  too  often  upon  those  who  had 
no  means  of  redress  The  judiciary  committee 
proposed  to  make  the  surrogate  a  salary  office, 
and  with  those  two  reform?,  lh<>se  courts  would 
occupy  a  most  useful  pluce  in  the  judicial  ad- 
ministration. The  work  entrusted  by  the  Con- 
vention to  the  judiciary  committee,  was  one  of 
great  magnitude  and  surrounded  with  many  dif- 
ficulties. To  irame  a  judicial  system  for  a  gre;;t 
and  growing  state,  which  should  prove  effectual 
to  the  protection  and  preservation  of  the  numer- 
ous and  complicated  interests  committed  to  its 
charge,  is  a  work  upon  which  hon.  gentlemen 
might  well  entertain  a  conflict  of  opinion.  And 
if  the  report  which  they  had  submitted,  through 
their  chairman,  did  not  in  all  its  details  and 
minor  parts  command  the  concurrence  of  all  the 
memb  rs  of  the  committee,  he  hoped  it  would 
encounter  no  disfavor  on  that  account.  The  re- 
sult of  the  deliberations  of  a  committee  so  nu- 
merous—and indeed  the  result  of  the  delibera- 
tions of  th«  Convention  itself— must,  to  some  ex- 
tent, be  brought  about  by  compromise.  Entire 
unanimity  was  wholly  out  of  the  question.  All 
governments  of  opinion  were  governments  found- 
ed upon  compromises.  And  unless  the  members 
of  the  Convention  were  prepared  to  yield  their 


preferences   for  particular   objects,  to  a  limited 
extent,  as  the  members  of  the  judiciary  commit- 
tee had  done  in  framing  their  report,   all  hope  of 
the   introduction   of   useful  and  wholesome   re- 
forms, into  our  system   of  government,  must  for 
the  present  be  abandoned.     It  afforded  him  great 
satisfaction  to  know,  that  upon  all  the  prominent 
features  of  the  report,   there  was  no  difference  of 
opinion.     The  necessity   for  a  large  increase  of1 
the  judicial  force,  and  for  the  separation   of  that ' 
force  and  its  distribution  over  the  territory  of  the  ^ 
state,  was  too  apparent  to  admit  of  any  doubt. — 
How  that  force  should  be  created,  what  it  should 
be  denominated — what  should  be  its  powers  and 
duties — when  and  where  those  powers  should  be 
exerted,  and  how  those  duties  should  be  perform- 
ed, and  for  what  periods   of  time  they  should  be 
exercised,  were  questions  upon  which  the  com- 
mittee did  entertain  some  differences  of  opinion. 
But  many  of  these  differences  were  such  as  could 
be  reconciled   without  compromising  established 
principles.     The  first  leading  proposition  of  the 
report  is  the  creation  of  thirty-six  judges,  for  the 
supreme  court  and  the  court  of  appeals.  His  own 
judgment    was,  that  the  number  should   be   in- 
creased to  forty.      Such  was  his  judgment  at  the 
commencement  of  the   session,  and  all  the  pro- 
tracted discussions  in  committee,  and  all  the  sta- 
tistics furnished  the  Convention  had   served   to 
confirm   that  judgment.     All  the  business  now 
done  in  the  court  of  errors,  in  the  supreme  court, 
the  court  of  chancery,  and  the  courts  of  common 
pleas,  are   to  be   imposed  upon  these  judges. — 
The  Convention,  he  thought,  would  concur  with 
him,   that   the  number  was  barely  sufficient  for 
the  duties  to  be  performed.     The   second  lead- 
ing   proposition    of  the   report  of  the  commit- 
tee, was  the    separation  of    the  State  into  eight 
judicial     districts     with     general     and     special 
terms  of  the  court  to  be  held  in  each  district. — 
This  second  proposition  was  a  necessary  conse- 
quence of  the  first.     For   it  was  apparent,  if  the 
unity  of  the  court  was  to  be  maintained,  and  the 
judges  all  to  sit  at  one  time  and  in  one  place  as 
they  now  do,  an  increase  of  the  judicial  force  was 
useless  and  unnecessary.     No  useful  or  beneficial 
application  of  the   additional  force  can  be   made 
until  it  is  severed  and  separated,  and  properly  dis- 
tributed.    He  was  not   insensible  to  the  advan- 
tage resulting  from  the  unity  of  the  court.     Noth- 
ing but  the   severest  necessity  could  justify  its 
separation  into  distinct  parts  or  benches   acting 
'ndependen  ly   of   each  other.     Harmony  of  ac- 
:ion,  uniformity  of  decision,  the  dignity  and  the 
nfluerice  which  belonged  to  a  united  and  indivi- 
sible tribunal   are   objects   which  cannot  be  too 
hly  valued.     He  would  submit  to  many  incon- 
veniences and  make  many   sacrifices   in  order  to 
attain  them.     But  in  a  state   like  this,  with    its 
vast  population,   its  growing  business,   its  wide 
erritory,  its  foreign  and  domestic  commerce,  the 
enterprise  and  diversified  pursuits  of  its  people, 
the  unity  of  the  Supreme   Court,  is  no   longer 
compatible,  with  the  due   administration  of  jus- 
ice.     We  must  therefore  submit  to  see  the  court 
separated  in  the  manner  proposed  in  the  report, 
and  its  terms  held  in  the  various  judicial  districts 
of  the  state.     In  no  other  way  can  civil  rights  be 
asserted  and  properly  made  secure  by  means  of 
our  courts  of  justice.     The  third  leading  propo- 


494 


sition  of  the  report  is  to  unite  the  common  law 
and  equity  jurisdictions  in  the  same  tribunal. — 
This  feature  of  the  report  had  its  entire  approba- 
tion, and  in  this  respect  he  was  sorry  to  find  him- 
self at  variance  with  his  friend  from  Essex,  (Mr. 
SIMMONS.)  He  was  aware  of  the  force  of  that 
gentleman's  influence  whenever  he  chose  to  ex- 
ert it.  But  with  the  opinion  of  some  of  the 
ablest  English  judges  concurring  with  that  of 
the  committee — with  the  successful  example  of 
some  of  the  English  courts — the  Supreme  Court 
of  the  United  States,  the  courts  of  several  of  the 
states  of  the  Union,  and  the  equity  powers  ex- 
ercised by  the  circuit  judges  of  our  own  state  for 
the  last  twenty  years,  he  was  encouraged 
to  look  for  the  happiest  results  from  this  propo- 
sition of  the  report.  He  would  refer  in  this  con- 
nection to  another  recommendation  of  the  re- 
port, \yhich  he  was  sure  would  command  the  ap- 
probation of  every  member  of  the  Convention — 
that  was  the  duty  imposed  upon  the  judges  to 
take  the  testimony  in  equity  causes  the  same  as 
in  cases  at  common  law.  This.provision  will  re- 
move one  of  the  principal  causes  of  the  delays 
which  mark  the  progress  of  a  chancery  suit. — 
He  had  always  regarded  the  practice  of  taking 
testimony  before  an  examiner  as  an  enormous 
abuse  and  a  perversion  of  justice.  It  was  op- 
pressive upon  the  judge  or  officer  whose  duty 
it  was  to  try  the  cause  ;  it  was  oppressive  upon, 
and  oftentimes  ruinous  to  the  suitor  who  paid 
the  expenses,  and  benefited  no  human  being  but 
the  examiner  who  wrote  down  the  testimony — 
While  his  honorable  friend  (Mr  RUGGLES)  was 
the  Vice  Chancellor  of  the  second  circuit  he  had 
seen  vast  bundles  of  depositions  brought  before 
him  upon  the  hearing  of  a  chancery  cause,  the 
bare  sight  of  which  was  sufficient  to  correct  all 
unhappy  aspirations  after  the  judicial  office. — 
The  expense  of  taking  the  evidence  in  this  form 
sometimes  amounts  to  many  hundred  dollars ; 
and  if  he  was  not  mistaken  the  gentleman  from 
Oneida  brought  to  the  notice  of  tbe  committee  a 
case  where  the  expenses  amounted  to  several 
thousand  dollars  for  examiners'  fees  alone. — 
When  the  judicial  administration  becomes  pro- 
ductive of  such  results,  it  fails  to  preserve  the 
interests  committed  to  its  charge.  The  duties 
which  the  government  owes  to  the  citizen  are  to 
protect  him  in  the  enjoyment  of  life,  liberty  and 
property.  But  if  property  cannot  be  preserved, 
if  civil  rights  cannot  be  enforced  or  defended 
without  such  enormous  burthens  and  expenses, 
he  submitted  whether  the  government  had  not 
failed  to  fulfil  one  of  the  principal  ends  for  which 
it  was  instituted.  The  fourth  leading  proposition 
of  the  report  is  the  abrogation  of  the  courts  of 
common  pleas.  With  very  few  exceptions,  these 
courts  have  long  since  lost  the  public  confidence. 
Holding  their  terms  three  or  four  times  a  year, 
they  necessarily  impose  large  expenses  upon  the 
county  treasuries,  in  addition  to  the  loss  of  time 
to  parties,  witnesses  and  jurors,  without  any  cor- 
responding benefits.  Imperfect  in  their  organi- 
zation, feeble  in  their  administration,  few  will 
behold  their  abrogation  with  reluctance  or  regret. 
The  fifth  proposition  of  the  report  is  one  upon 
yrhich  the  committee  had  no  divided  opinion.  It 
is  the  provision  for  permanent  salaries  to  judicial 
officers,  and  the  prohibition  to  take  fees  or  per- 


quisites. He  had  no  desire,  in  the  mode  of  ap- 
pointing the  judges,  to  put  them  beyond  the  reach 
or  influence  of  public  opinion  ;  but  in  regard  to 
the  duration  of  their  official  terms,  the  security 
in  which  those  terms  should  be  enjoyed,  and  the 
liberality  of  their  compensation,  he  would  have 
them  wholly  independent.  He  would  have  them 
untouched,  untainted  and  uncontaminated  by  a 
miserable  traffic  in  the  fees  of  office.  Nothing  in 
his  judgment,  tended  so  much  to  lessen  the  dig- 
nity and  impair  the  influence  of  the  judicial  of- 
fice, or  to  bring  reproach  upon  judicial  adminis- 
tration, as  this  system  of  compensation  by  fees. — 
All  the  propositions  to  which  he  had  referred  had 
the  approbation  of  a  large  majority  of  the  com- 
mittee, and  if  they  could  be  embodied  into  the 
Constitution  by  a  concurrence  of  a  majority 
of  the  Convention,  he  was  sure  they  would  be 
attended  with  the  happiest  results.  There  were 
some  other  provisions  which  he  should  have  been 
glad  to  have  engrafted  upon  the  report.  It  was 
his  wish  that  the  terms  of  the  Court  of  Appeals 
and  the  terms  of  the  Supreme  Court  should  be 
justly  distributed  amongst  the  proposed  judicial 
districts  by  constitutional  provision.  It  was  far 
easier  and  more  appropriate  for  the  courts  to  fol- 
low the  people,  than  for  the  people  to  follow  the 
courts;  and  he  hoped  to  see  the  time  when  the 
necessity  of  sending  causes  from  one  extremity  of 
the  State  to  another,  for  argument  and  decision 
would  no  longer  exist.  Provision  should  also 
have  been  made  in  the  report  for  the  election  and 
compensation  of  a  clerk  of  the  supreme  court  for 
each  of  the  eight  judicial  districts.  In  addition 
to  their  duties  upon  the  common  law  side  of  the 
court,  they  will  be  required  to  perform  all  the 
duties  now  performed  by  the  registers  and  clerks 
in  chancery.  The  office  will  be  one  of  great 
responsibility,  requiring  more  than  common  abi- 
lity. He  hoped  the  Convention  would  make 
them  elective,  and  remunerate  them  by  salaries. 
The  fees  of  the  clerks  of  the  supreme  court  had 
heretofore  been  the  subject  of  some  complaint 
and  of  some  legislation.  The  people  of  the  State 
had  seen — what  he  hoped  they  might  never  see 
again — judges  come  down  from  the  bench,  to 
reap  those  rich  rewards  as  mere  clerks  of  their 
own  courts,  which  legislation  denied  to  learning 
and  to  intellectual  labor  of  the  highest  order. 
As  a  means  or  measure  of  compensation,  fees  were 
justly  obnoxious  and  objectionable.  They  are 
the  legitimate  offspring  of  monarchical  gov- 
ernment, and  are  often  the  source  of  the  most 
flagrant  abuses,  They  afford  the  only  measure 
of  compensation  by  which  the  real  amount  re- 
ceived is  concealed  from  public  observation  and 
large  contributions  levied  upon  the  labor  of  the 
people,  without  their  consent.  Under  an  admin- 
istration of  government  designed  to  benefit  all 
alike,  the  standard  of  compensation  for  public 
services  should  be  known,  and  established  by 
law,  and  the  temptation  to  multiply  unne- 
cessary services  and  to  make  unjust  and  il- 
legal exactions  should  always  be  withheld. — 
The  report  of  the  committee  omitted  ano- 
ther provision  which  he  hoped  might  still 
be  inserted.  He  alluded  to  a  commission  to  be 
composed  of  competent  men  to  dispose  of  the  un- 
finished business  in  the  Supreme  Court  and  Court 
of  Chancery.  It  has  been  said  before  the  com- 


495 


that  I  here  were  at  this  moment  some  1500 
red  causes  ready  for  heating,  pen-! ing  and  undeter- 
mined in  those  two  courts.  The  number  was 
doubtless  very  large.  This  vast  accumulation  of 
unfinished  business  will  derive  new  accessions  du- 
ring the  coining  year  and  will  become  a  subject 
of  serious  public  concern.  Suitors  whose  pro- 
perty is  dependent  upon  or  locked  up  in  those 
causes  have  a  right  to  look,  and  do  look,  to  this 
Convention  for  relief.  Shall  this  business  be 
thrown  upon  the  tribunals  we  propose  to  estab- 
lish,  or  shall  provision  be  made  without  any  de- 
lay to  dispose  of  it  before  the  time  appointed 
for  the  new  constitution  to  tai<e  effect,  which  will 


not  be  sooner  than  the  first  of  January,  1848. 
would  greatly  prefer  the   latter   alternative. 


He 
To 


vvith  what  truth  he  was  unable  to  say —  |  advantage  to  those  to  whom  it  belongs.  He  there- 
fore hoped  to  see  this  embodied  in  the  constitu- 
tion about  to  be  framed,  and  which  should  form 
a  part  of  this  judicial  report,  a  provision  by 
virtue  of  which  the  State  shall  take  into  its  own 
hands  the  fund  to  which  he  referred,  and  hold 
the  same  upon  such  terms  and  at  such  rate  as  of 
interest  and  under  such  regulations  as  the  legis- 
lature may  prescribe.  The  security  of  the  mo- 
ney and  the  stability  of  the  government  would 
then  become  identical ;  they  would  stand  or  fall 
together,  the  State  would  become,  what  every  free 
state  should  be — the  protector  and  the  preserver 
of  the  property  and  interests  of  those  whose  age 
or  infirmities,  or  whose  peculiar  condition  in  so- 
ciety puts  it  out  of  their  power  to  protect  them- 
selves. He  would  disturb  no  vested  interests, 
nor  introduce  any  sudden  or  inconvenient 
changes  in  regard  to  these  funds,  but  he  would 
by  prospective  provisions  take  away  the  instabil- 
ity and  insecurity  which  under  our  present  laws 
too  often  await  upon  the  fortunes  and  subsistence 
of  those  who  may  find  themselves  suddenly 
bereaved  of  their  parents  and  protectors. — 
He  understood  that  an  Hon.  friend  of  his  (Mr. 
WHITE)  designed  at  the  proper  time  to  submit  an 
amendment  of  this  kind.  He  hoped  that  gentle- 
man would  do  so  now,  that  it  might  be  printed 
and  made  public  with  the  report  of  the  commit- 
tee. The  very  able  and  lucid  exposition  which 
the  chairman  of  the  committee  (Mr.  RUGGLES) 
had  made  to  the  Convention  rendered  it  unneces- 
sary that  he  should  say  more  than  to  express  his 
sincere  belief  that,  should  the  proposed  judicial  re- 
port be  adopted  even  in  a  modified  form,  it  would 
confer  benefits  upon  the  people  of  the  state  in  the 
prompt,  economical  and  enlightened  administra- 
tion of  the  law,  which  would  more  than  com- 
pensate them  for  all  the  time  lost  and  expense 
incurred  in  calling  this  Convention. 

Mr.  WHITE  offered  the  following  additional 
section,  which  he  said  he  should  at  a  proper  time 
move  to  add  to  this  report  : 

{j  — .  The  legislature  shall  provide  by  law  that  all 
moneys  in  the  custody  or  under  the  control  ol  any  of  the 
courts  of  law  or  equity,  for  the  benefit  of  suitors  and  others, 
at  the  time  this  Constitution  shall  take  effect;  and  all  mo- 
neys which  sha  1  thereafter  be  paid  into  any  of  the  courts 
of  record  of  the  state,  for  the  benefit  ol'  suitors  and  others, 
shall  be  paid  into  the  tr.-asury  of  the  state,  at  such  times, 
and  under  such  regulations,  and  to  b«  he-Id  by  the  state  for 
the  benefit  of  such  suitors  and  others,  at  such  rate  of  in- 
terest as  the  legislature  may  prescribe. 

Mr.  TALLMADGE  moved  that  all  the  reports 
be  printed,  the  usual  number  and  500  extra  co- 
pies, (1300.) 

Mr.  CROOKER  suggested  that  1600  would  be 
desirable. 

Mr.  TALLMADGE  assented,  and  so  amended 
his  motion.  Agreed  to. 

The  Comptroller  transmitted  an  answer  to  the 
resolution  offered  by  Mr.  F.  F.  BACKUS,  as   to 
the  value,  &c.,  of  the  canals,  &c. 
STATE  OFFICERS. 

The  committee  of  the  whole,  Mr.  JONES  in 
the  Chair,  resumed  the  consideration  of  the  re- 
port of  committee  No.  6. 

Mr.  CHATEIELD  doubted  the  propriety  of 
taking  any  vote  with  so  thin  a  House 

Mr.  VAN  SCHOONHOVEN  moved  to  rise  and 
report  progress.  Carried. 

The  Convention  then  adjourned. 


say  nothing  of  the  injustice  which  would  be  done 
to  the  new  system  by  thrusting  upon  it  at  the  com- 
mencement, of  the  accumulations  of  oast  years,  it 
was  due  to  the  parties  interested  in  those  suits  and 
to  the  wholesome  administration  of  justice  itself 
that  they  should  be  heard  and  determined  at  an  ear- 
lier dav.  He,  therefore  hoped  that  authority  would 
be  given  to  the  Governor  or  to  the  Governor  and 
Senate,  the  moment  the  new  constitution  is  ratified 
and  adopted  by  the  people,  to  appoint  a  commis- 
sioner to  hear  and  determine  causes  depending  in 
the  Supreme  Court,  and  another  commissioner  to 
hear  and  determine  causes  depending  in  the  court 
of  Chancery — the  judgment  or  decrees  of  the 
commissioners  to  have  the  same  effect  as  if  pro- 
nounced by  the  judges  or  chancellor  themselves. 
And  all  the  powers  of  the  commissioners  to  cease 
at  the  time  appointed  for  the  new  constitution  to 
take  effect.  B\  this  plan,  a  large  portion  of  the 
unfinished  business  would  be  disposed  of,  and  the 
new  system  go  into  operation  unoppressed  by  the 
accumulations  of  past  years.  There  is  a  large 
amount  of  money,  the  property  of  suitors,  infants, 
married  women,  widows,  persons  of  unsound 
mind,  and  unknown  and  absent  owners  of  real 
estate,  in  the  custody  or  under  the  control  of  the 
various  courts  of  record  in  the  State.  In  the 
court  of  Chancery  alone  it  amounts  to  near  three 
millions  of  dollars,  but  how  much  remains  with 
the  other  courts  the  documents  before  the  Con- 
vention do  not  disclose.  This  fund  is  invested  in 
the  trust  company,  deposited  in  banks  or  loaned 
out  upon  the  security  of  bonds  and  mortgages. — 
The  government  by  its  agents  and  instruments — 
the  courts  of  law  and  equity — has  undertaken  the 
management  of  this  large  property,  and  should  in 
his  judgment  be  responsible  for  the  faithful  exe- 
cution of  the  trust;  yet  while  a  large  portion  of  this 
money  comes  into  the  custody  of  the  courts  with- 
out the  agency  or  the  assent  of  the  owners,  and 
constitutes  in  many  instances  the  sole  support  of 
age  and  infancy,  and  those  borne  down  and  ren 
dered  helpless  by  physical  and  mental  infirmity, 
it  cannot  be  controverted  that  should  the  fund  be 
lost  or  wasted  by  the  failure  of  the  trust  compa- 
ny, the  banks,  the  insufficiency  of  the  bonds  and 
mortgages  or  the  mal-conduct  of  the  officers  of 
the  court,  the  importunate  and  helpless  owners 
would  find  themselves  without  the  shadow  of  a 
remedy.  This  State  is  constantly  borrowing  mo 
ney  at  interest,  and  must  continue  to  be  a  borrow- 
er for  many  years  to  come.  It  could  therefore  use 
this  fund  with  profit  to  itself  and  with  manifest 


496 


MONDAY,  (52d  day,}  August  3. 

Prayer  by  the  Rev.  iVlr.  MEYERS. 

Mr.  MANN  called  for  the  consideration  of  the 
resolution  offered  by  him  a  few  days  since  and 
laid  upon  the  table,  requiring  the  chancellor  to 
report  to  this  Convention  the  items,  making  the 
amount  of  nearly  $3,000,000,  reported  in  nggre 
gate  amount  of  the  funds  in  the  Chancellor's  hands 
and  under  his  control.  No  objection  being  made, 
the  resolution  was  considered.  It  was  as  fol- 
lows:— 

Resolved.  That  the  Chmcellor  of  this  State  be  request- 
ed to  direct  the  Register,  Assistant  Register  and  <  lerks, 
to  furnish  to  this  Convention  the  separate  and  distinct 
items,  with  the  names  ol  all  the  estates,  heirs,  owners  *nd 
parties  claiming  and  interested,  for  whose  benefit  and  for 
what  purposes  the  funds  are  held,  whether  in  trust  or  oth 
erwise,  with  the  dates  of  the  receipt  of  all  the  funds,  com- 
prising and  making  the  aggregate  amount  reported  or 
furnished  to  this  Convention  by  the  Chancellor,  as  subject 
to  the  order  and  control  of  the  court  of  chancery  up  to 
January, 1816. 

Mr.  MANN  said  he  did  not  call  up  this  reso- 
lution for  the  purpose  of  producing  a  discussion, 
and  was  willing  to  submit  its  decision  to  the  good 
sense  of  the  Convention  without  debate,and  hoped 
it  would  take  this  course.  If  gentlemen  did  not 
approve  of  the  call  for  information,  or  the  items 
making  this  vast  amount  in  the  hands  of  the 
Chancellor,  and  the  manner  of  its  accumulation, 
to  whom  it  belonged,  and  for  what  purpose  it  was 
held,  then  they  would  vote  against  the  resolu- 
tion—but if  they  deemed  the  call  important  and 
of  consequence  to  the  convention  or  to  the  peo- 
ple, they  would  vote  for  it. 

Mr.  SIMMONS  asked  if  it  was  a  matter  of  re- 
ference, or  a  direct  call  for  the  statement  ? 
*•  Mr.  MANN  replied  that  it  was  a  direct  call  for 
the  items  making  up  the  aggregate  amount  of 
funds  reported  to  the  convention  by  the  Chancel- 
lor as  being  in  his  hands  and  under  his  control. 

Mv.  SIMMONS  said  he  did  not  think  it  would 
be  proper  to  expose  all  the  facts  which  this  reso- 
lution would  bring  out. 

Mr.  MANN  insisted  that  it  would  be  proper. 

Mr.  TOWNSEND  wanted  it  sent  to  some  com- 
mittee. 

Mr.  BASCOM  had  doubts  about  the  propriety 
ot  adopting  the  resolution.  AM  answer  would  be 
voluminous,  and  he  doubted  whether  i(  was  ne- 
cessarv  tor  the  bnsis  uf  any  ad  ion  by  the  Conven. 
tion.  There  was  one  branch  of  the  subject  upon 
which  he  would  like  more  information  than  con- 
tained in  the  Chancellor's  report  ;  he  would  like 
a  more  detailed  statement  in  relation  to  what  is 
described  as  •'  floating  balances,"  or  "  floating." — 
This  fund  as  would  seem  by  ihe  Chancellor's  re- 
port was  now  nearly  $165,000  : 

In  the  1st  circuit  it  was $86,534  18 

id  do  39,16737 

3d  do  ••• 2.938  17 

4th  do  1,87939 

6h  do  8.799  47 

6th  do  157  64 

7th  do  9,38808 

8th  do  1603709 

This  floating  fund  was  made  up  of  funds  of 
suiters  deposited  by  order  of  ihe  courts.  It  was 
kept  in  banks  at  interest  until  it  was  more  perma- 
nently mves;ed  or  paid  over  to  those  entitled  to  it. 
If  he  was  not  misinformed,  the  interest  that  ac. 
cumulated  upon  these  deposits  in  banker  a  part 


of  it  at  least  had  been  used  for  the  purchase  of 
books  for  the  Chanceiloi's  or  Vice-Chancellor's 
libraries,  and  f  r  other  purposes  in  which  suitors 
lo  whom  the  money  belonged,  had  no  particular 
int-resis.  It  might  be  right  to  use  the  interest  ac- 
cumulating upon  the  funds  of  individual  s-uitors 
for  such  purposes,  but  we  could  not  understand 
why  it  was  so.  He  had  drawn  an  amendment 
which  he  h;td  thought  of  offering  to  the  resolu- 
tion of  the  gentleman  from  New  York  to  call  out 
information  in  relation  to  this  floating  fund,  but 
as  he  had  some  doubts  as  to  its  necessity  or  pro- 
priety, and  as  he  did  not  wish  to  embarrass  the 
resolution,  he  would  not  now  offer  it.  He  would 
like  the  information,  but  he  did  not  see  clearly 
what  action  we  could  lake  upon  Ihe  subject  when 
we  should  have  obtained  it 

Mr.  MANN  then  said  that  the  call  would  not 
incur  the  labor  that  many  gentlemen  had  suppos- 
ed. These  items  were  all  made  up  annually  to 
1st  January  in  each  district,  and  were  returned  to 
the  Chancellor,  and  all  the  labor  required 
would  be  to  copy  the  return  in  each  dis- 
trict, which  would  give  the  desired  information. 
Mr.  M.  said  if  this  inf  rmation  was  not  neces- 
sary, why  was  the  call  made  for  the  aggregate 
amount  at  all  necessary;  and  Mr.  M.  deemed  the 
items  were  much  more  important  than  the  aggre- 
gate. This  having  been  reported,  it  had  created 
a  desire  on  the  part  of  many  of  the  convention, 
and  of  the  people  at  large,  to  have  these  items 
laid  before  us,  and  made  public.  Mr.  M.  believ- 
ed that  the  people  were  anxious  to  see  the  items 
called  for  by  the  resolution,  comprising  this  large 
amount  in  the  hands  of  the  Chancellor.  This  was 
one  of  the  reasons  that  induced  him  (Mr.  M.)  to 
offer  this  resolution  but  he  was  willing  to  leave 
it  to  the  convention  to  dispose  of  as  they  thought 
proper. 

Mr.  MURPHY  was  anxious  to  have  some  rea- 
son for  this  call,  more  satisfactory  than  the  one 
which  had  been  given.  If  this  was  anything 
which  was  connected  with  the  business  of  the 
Convention,  it  would  be  proper  to  pass  the  reso- 
lution ;  but  from  the  explanation  of  the  gentle- 
man from  New- York,  it  appeared  that  the  simple 
object  was  to  gratify  what  the  gentleman  called 
the  public  curiosity.  It  might  be  that  it  was  de- 
sired to  publish  a  statement  of  unclaimed  funds, 
that  their  existence  might  be  made  known  to 
those  to  whom  they  belonged,  that  they  might 
make  application  for  them,  as  was  the  practice 
in  relation  to  unclaimed  dividends  in  banks. — 
But  he  should  object  if  the  object  was  to  spread 
before  the  public  the  private  interest  of  individu- 
als in  the  court  of  chancery,  to  satisfy  the  curi- 
osity of  some  men  who  had  a  design  on  those 
funds.  He  thought  this  was  not  the  legitimate 
business  of  this  Convention,  and  he,  therefore, 
moved  the  reference  of  this  resolution  to  the  ju- 
diciary committee. 

The  motion  to  refer  was  agreed  to. 

Mr.  CHAMBERLAIN  presented  a  petition 
from  citizens  of  Madison  county,  in  relation  to 
the  revenues  and  canals  of  the  State.  Referred 
to  the  committee  of  the  whole  having  in  charge 
Mr.  HOFFMAN'S  report  on  that  subject. 
STATE  OFFH  ERS. 

The  Convention  then  went  into  committee  of 
the  whole,  and  again  took  up  the  report  of  the 


497 


sixth  standing  committee,  Mr.  JONES  in  the 
chair. 

The  question  was  on  striking  out  in  the  first 
section  the  provision  for  salaries. 

Mr.  STRONG  believed  that  this  question  of 
salaries  would  have  to  be  decided  here  in  Con- 
vention, or  otherwise  it  would  become  a  fruitful 
source  of  electioneering  and  a  popular  bone  of 
contention,  and  State  officers  would  be  elected 
upon  the  principle  of  high  and  low  salaries,  and 
before  election  the  candidates  would  be  interro- 
gated as  to  whether  they  were  in  favor  of  high 
salaries  or  low  ones,  and  unless  they  could  take 
the  course  of  gentlemen  from  New  York,  and  un- 
derstand their  instructions  both  ways,  and  answer 
both  ways,  it  would  lead  to  a  reduction  below  a 
fair  rate.  He  was  for  giving  fair  salaries,  and 
having  them  fixed  and  permanent,  and  not  fluc- 
tuating by  change  of  parties.  This  would  be  the 
means  of  calling  here  an  enormous  lobby  to  in- 
crease salaries  every  year.  He  believed  the  peo- 
ple had  more  confidence  in  this  Convention  than 
they  would  have  in  the  next  legislature,  and  it 
was  our  duty  to  determine  this  question  and  re- 
lieve the  legislature  from  the  duty  of  fixing  the 
salaries  of  some  fifty  officers,  and  from  the  crowd 
of  lobby  agents  who  would  besiege  them  for  an 
increase  of  the  salaries  of  their  friends.  He  be- 
lieved all  in  the  Convention  to  be  as  honest  as 
any  out  of  it. 

Mr.  MARVIN  offered  the  following  amendment 
as  a  substitute  for  the  amendment  pending  : 

"  Each  of  the  officers  in  this  article  named  shall  at  sta- 
ted times  receive  lor  his  services  a  compensation  which 
shall  not  be  increased  or  diminished  during  the  term  for 
which  he  shall  have  been  elected  ;  nor  shall  he  receive  to 
his  use  any  ices  or  perquisites  oi' office." 

Mr.  PERKINS  believed  this  amendment  would 
substantially  reach  his  object  in  the  report  which 
he  had  submitted  on  Saturday.  And  after  some 
explanations  he  assented  to  it.  His  views  in  dif- 
fering from  the  majority  report  were  that  in  the 
course  of  a  long  period  of  time,  changes  in  the 
value  of  money,  and  the  expenses  of  living  would 
take  place,  rendering  a  change  in  the  amount  of 
salaries  necessary.  Again,  if  these  salaries  were 
fixed  in  the  Constitution,  it  would  lead  to  length- 
ened discussion  among  the  people  in  regard  to 
the  justice  of  their  salaries,  and  by  this  means 
their  attention  would  be  withdrawn  from  the 
more  important  principles  of  government.  He 
was  willing  for  his  own  part,  to  trust  this  matter 
to  the  Legislature.  In  his  section  of  the  State, 
there  had  been  no  complaint  at  any  time  in  re- 
gard to  the  amount  of  the  salaries  of  State  offi- 
cers, and  he  did  not  believe  there  was  any  such 
feeling  amongthe  people  generally.  It  had  been 
urged  against  giving  this  matter  to  the  Legisla- 
ture, that  the  efforts  of  partizans  would  be  direct- 
ed against  these  State  officers,  by  attempts  to  re- 
duce their  salaries.  But  by  taking  it  out  of  the 
power  of  the  Legislature  to  reduce  or  to  enlarge 
the  salaries  of  officers  during  their  term,  this 
objection  would  be  removed.  While,  by  this 
privilege  of  fixing  them  in  prospective,  when 
found  too  limited  or  too  large,  they  might  be  cor- 
rected as  regarding  those  'who  were  to  receive 
them  in  succeeding  terms.  The  action  of  the 
Legislature  had  heretofore  been  governed  by 
great  propriety,  and  the  salaries  given  were  fair 

37 


and  equal.  He  was  still  willing  to  give  this 
power  into  their  hands,  believing  that  they 
would  perform  the  duty  with  well-considered 
and  just  attention  to  the  merits  of  the  matter. 

Mr.  NICHOLAS  said,  as  a  member  oi  the  com- 
mittee No.  6,  he  had  differed  wiih  the  majority  of 
the  committee  on  the  subject  of  salaries,  and  re- 
served his  right  to  object  to  the  salaries  of  the 
State  officers  being  fixed  in  the  Constitution.  He 
believed  this  to  be  a  legislative  duty,  and  he  wish- 
ed to  devolve  it  upon  the  Legislature,  and  as  we 
had  commenced  this  system  in  regard  to  the  sala- 
ry of  the  Governor,  he  (Mr.  N.)  thought  we  had 
better  adopt  the  same  rule  in  all  cases.  It  has 
been  said  that  we  have  already  deviated  from  this 
rule  in  regard  to  the  pay  of  the  Legislature,  which 
we  have  specified  in  the  Constitution,  but  they 
are  not  anaiagous  cases,  for  the  reason,  that  the 
Legislature  would  fix  their  own  compensation,  if 
it  is  not  limited  in  the  Constitution,  and  there  is 
certainly  a  propriety  in  the  compensation  of 
the  chief  agents,  the  representatives  of  the  pec- 
pie,  being  determined  by  the  people  them- 
selves  through  the  Constitution,  leaving  it  to 
their  representatives  to  decide  what  shall  be  the 
compensation  of  all  other  officers  of  the  State. — 
The  duties  of  these  officers  will  necessarily  va- 
ry. There  is  now,  and  it  is  proposed  to  continue 
a  material  disproportion  in  the  compensation  of 
these  departments,  and  perhaps  as  great  in  their 
labor  and  responsibility.  Now  if  the  latter 
should  hereafter  be  changed— if  the  labors  and 
responsibilities  of  one  department  are  diminished 
and  those  of  another  increased,  their  relative  com- 
pensation should  undergo  the  same  change.  Your 
Comptroller  now  receives  $2.500,  and  the  Trea- 
surer $1, 500.  Suppose  the  Legislature  hereafter 
finds  it  necessary  to  vary  their  present  relative  du- 
ties— to  transfer  a  part  of  the  labor  of  the  former 
to  the  latter  department,  it  is  evident  that  it  may 
be  proper  to  increase  the  pay  of  the  Treasurer, 
even  if  thesalary  of  the  Comptroller  should  be  sta- 
tionary. Now,insert  the  salaries  in  theConstitution 
and  you  preclude  the  possibility  of  future  necessa- 
ry alterations  in  the  duties  of  these  departments. 
Mr.  N.  need  not  allude  to  the  fluctuation  in  the 
value  of  labor,  property,  subsistence  and  money 
itself,  which  render  it  difficult  to  decide  now  what 
will  be  proper  salaiies  for  the  next  quarter  of  a 
century,  and  we  all  hope  that  our  Constitution 
will  endure  without  chanee  for  that  period.  He 
(Mr.  N  )  could  not  see  the  danger  predicted  by 
gentlemen  here,  if  this  question  of  salaries  is  left 
to  the  Legislature,  that  it  will  become  an  issue 
which  will  influence  your  elections,  that  candi- 
dates for  the  Legislature  will  be  brought  forward 
with  reference  to  low  salaries;  he  (Mr.  N.)  feared 
no  such  result.  If  the  Constitution  leaves  the 
question  with  the  Legislature,  there  will  be  no 
danger  of  salaries  extravagantly  high,  and  the  per. 
pie  of  this  State  would  not  approve  of  insufficient 
compensations,  they  know  very  well  that  to  se. 
cure  the  services  of  competent  men  they  must  be 
allowed  a  fair  remuneration  for  their  time  and  la- 
bor an«!  official  rp«ponsibili'ies. 

Mr.  HOFFMAN  desired  to  obtain  all  the  ad- 
vantages presented  in  the  report  of  the  commit- 
tee, and  also  the  advantages  contained  in  the 
pending  amendment.  For  five  years  to  come, 
and  even  for  ten  years,  this  Convention  can  well 


498 


judge  and  determine  what  the  duties  of  these  offi- 
cers are  likely  to  be,  and  what  compensation  they 
oue;ht  to  receive  for  those  services,  and  he  would 
advise  that  the  salaries  should  be  fixed  for  that  or 
some  other  limited  period.  Whether  the  com- 
pensation fixed  by  the  report  was  too  high  or  too 
low,  had  nothing  to  do  with  the  principle;  we 
could  easily  judge  of  what  the  duties  of  a  Comp- 
troller would  be  for  the  next  ten  years;  and  there 
would  be  great  gain  in  our  fixing  the  salaries. — 
Gentlemen  were  mistaken  in  supposing  that  the 
Legislature  could  fix  these  salaries  without  diffi- 
culty. When  these  lobbies  should  be  thronged 
with  the  office-seeking  and  office-holding  aristo- 
cracy, this  would  be  found  to  be  a  difficult  if  not 
a  dangerous  task.  He  wouid  advise  that  we 
should  fix  the  compensation  for  such  a  limited 
period  as  you  safely  can ;  fix  it  for  such  a  limited 
period  u.s  you  can  judge  of  what  the  duties  of  the 
office  will  be,  and  then  for  the  future  beyond,  al- 
low the  Legislature  to  determine;  but  require  that 
whenever  they  shall  so  act,  the  increase  or  dimi- 
nution of  salary  shall  not  take  effect  until  after 
the  expiration  of  the  term  of  the  incumbents  then 
holding. 

Mr.  CROOKER  suggested  that  Mr.  MARVIN 
should  except  the  Speaker  of  the  Assembly  from 
the  operation  of  his  amendments,  and  Mr.  M.  as- 
sented. 

Mr.  CHATFIELD  at  some  length  advocated 
the  proposition  of  the  committee  as  it  stood. 

Mr.  HART  was  in  favor  of  fixing  the  salaries, 
if  there  could  be  a  principle  of  flexibility  obtain- 
ed in  it;  and  to  produce  this,  he  had  prepared  the 
following  amendment,  which  he  sent  up  : 

The  salaries  prescribed  in  this  article  shall  be  subject 
to  alteration  by  law  at  every  successive  [leriod  of  ten  years, 
out  such  alteiation  shall  not  aft'ect  the  salaries  of  the  in- 
cumbt-nts  then  in  office,  during  their  respective  terms. 

Mr.  CHATFIELD  said  that  he  did  not  object 
to  this;  but  the  proposition  struck  him  quite  fa- 
vorably. 

Mr.  PATTERSON  thought  these  salaries  should 
not  be  fixed  in  the  constitution  for  the  reason  that 
they  would  be  so  inflexible.  No  change  could  be 
made  in  them  without  an  amendment  to  the  con- 
stitution. He  was  in  hopes  that  the  constitution 
might  be  sent  to  the  people  without  any  provision 
of  this  nature.  No  fears  need  be  entertained — 
such  as  had  been  expressed — that  che  Legislature 
would  be  besieged  or  influenced  by  lobbies  in  re- 
gard to  this  matter.  He  would  give  to  the  next 
Legislature  the  power  to  fix  these  salaries.  It 
could  not  be  expected  that  the  duties  of  the  State 
officers  would  always  remain  as  they  now  are. — 
He  was  in  favor  of  taking  some  portion  of  the 
power  of  the  comptroller  out  of  his  hands,  and 
distribute  them  among  other  State  officers — to  the 
Treasurer  or  Engineer  a«d  Surveyor.  The  Comp- 
troller holds  the  canals  in  one  hand  and  the 
banks  in  the  other.  He  had  power  to  draw  mo- 
ney from  the  Treasury  to  any  amount,  and  apply 
it  to  private  uses,  instead  of  for  public  purposes. 
To  guard  against  this,  he  would  have  the  Trea- 
surer, or  some  other  officer,  examine  every  mat- 
ter before  it  went  into  the  comptroller's  hands,  and 
find  whether  there  was  a  real  claim  against  the 
State  for  the  funds  drawn,  and  then  he  should 
himself  examine  to  see  if  it  was  correct.  This 
was,  as  was  said,  a  matter  of  legislation.  And 


while  it  was  given  to  the  legislature  to  prescribe 
the  duties  of  the  State  officers,  he  would  also 
give  them  the  power  of  fixing  salaries  appropriate 
to  the  extent  of  those  duties.  He  had  no  com- 
plaints to  make  in  regard  to  the  amount  now  paid 
to  the  Comptroller;  it  was  none  too  much  for  the 
duty  he  performed ;  but  as  heretofore  had  been 
the  case,  the  pay  of  officers  had  been  graduated 
according  to  the  expenses  of  living,  &,c.  No  fear 
need  be  entertained  that  a  crowd  of  officers  would 
beset  the  legislature  when  this  subject  came  be- 
fore them.  Never,  in  his  experience,  had  this 
been  the  case,  although  salaries  had  been  in- 
creased and  lessened. 

Mr.  A.  W.  YOUNG  opposed  the  fixing  of  sala- 
ries by  the  constitution.  Experience  had  shown 
that  it  often  became  necessary  to  change  the 
amount  and  nature  of  the  duties  of  public  offi- 
cers ;  and  with  such  change  it  would  be  necessary 
to  make  a  corresponding  change  of  compensation, 
which  could  not  be  done  if  the  legislature  were 
tied  down  by  a  constitutional  provision.  He  had 
no  fear  that  the  legislature  would  fix  salaries  too 
high.  Members  would  not  thus  hazard  their  pop- 
ularity, knowing  as  they  did,  that  their  constitu- 
ents were  opposed  to  high  salaries.  An  effort 
was  made  at  the  last  session  to  effect  some  reduc- 
tion of  salaries.  A  committee  on  retrenchment 
had  been  appointed  in  the  Assembly  ;  the  com- 
mittee reported  some  reduction,  but  upon  exami- 
nation it  appeared  to  be  the  opinion  of  the  house 
that  no  further  reduction  could  reasonably  be 
made;  and  the  subject,  after  a  little  discussion, 
was  dropped  by  common  consent.  Besides,  he 
did  not  think  the  people  designed  thus  to  have 
themselves  tied  down,  and  prevented  from  carry- 
ing into  effect  their  own  wishes,  when  they  de- 
sired to  instruct  their  representatives  to  raise  or 
reduce  salaries  when  they  might  be  found  to  be 
either  too  high  or  too  low.  This  was  not  a  prop- 
er subject  lor  the  action  of  the  convention.  It 
was  a  matter  of  too  small  importance,  and  ought 
not  to  be  placed  in  the  way  of  those  great  meas- 
ures of  reform  which  had  been  demanded  by  the 
people. 

Mr.  SIMMONS  wanted,  before  they  went  any 
further,  to  have  the  principle  so  fixed,  as  to  se- 
cute  the  Legislature  from  the  Deductions  that 
would  otherwise  eternally  surround  them.  Fix 
them  lor  some  ^es'iocl;  autr  that  revjs;-  them; 
then  go  on  to  another  period,  and  so  on  liorn  pe- 
i  iod  to  period.  iJut  never  let  them  go  into  mime 
diate  effect.  He  had  no  plan  p-epaied,  but  he 
g.tve  the  practice  in  Vermont  as  an  illustration, 
where  they  called  a  Convention  every  seven  \eais 
for  the  purpose  of  revising  vheir  arran^enient  of 
irovernrnent.  rlo  |'ropo*t-d  thai  it  «hould  he  pro. 
vuled  that  a  similar  Convention  should  be  held  in 
this  State  every  20  or  525  years,  for  the  purpose  of 
taking  our  bearings  and  seeing  where  we  were. — 
There  would  then  be  DO  chance  for  yetting  up  a 
political  excitement  by  one  partv  or  another  lor 
the  salve  of  popularity  in  relation  to  calling  such  a 
Convention.  1'  would  come  round  periodically, 
and  as  a  matter  of  regulation.  He  would  not  pro- 
pose that  the  salaries  should  be  fixed  lot  the  peri- 
od inteivening  between  these  Conventions,  but 
for  five,  seven  or  ten  years  ;  and  afier  they  were 
settled  he  would  not  have  them  go  into  eflect  tor 
a  short  time.  He  was  opposed  almost  entirely  lo 


499 


the  system  of  salaries, and  to  the  present  organiza- 
'  i  he  governmental  departments  of  thi«S!afe. 
In  France  there  was  a  greater  appropriateness  in 
•  TS.     There  was   the   minister  of 
•iterior,  the  minister  of  finance,  the  minister 
and  tin1  secretary  of  state.     He 
..  :it  this  stale  suffered  tor  \vaiif  of  a  function- 
ary to  superintend   the  administration  of  justice. 
:  try  of  state  was  not  engrossed  with  too 
much   labor.'    His  duties  should  come  up  to  his 
name,  and  he  should  not  be  merely  a  secretary  of 
the   legislative   department.     He  desired   to  see 
that  officer  make   an  annual  report  on  the  busi- 
judicial  departments,    with  statistical 
i>f  crime   and  convictions,  civil  suits, 
-•i  that  the  duties  of  secretary  of  state  would 
•iose  of  the   officer  who  in  Europe  was 
i  the  "  minister  of  justice."     He  went  on 
to  say  that  in  the  duties  of  the  Comptroller,  per- 
haps  some   subdivision    could    be    made.       He 
thought  some  of  his  duties  in  connection  with 
the  canals  were    incongruous.       He   ought  not 
to  be  both    the    receiving    and    the    disbursing 
agent.     His   duties   should    be    divided — whilst 
those    of    the  secretary  of   slate  should    be  in- 
creased.    The  Secretary  of  State   should  not  on- 
ly be  Secretary   of  the  Legislative   Department, 
but.  he  should  be  what  his  name  implies,    Secre- 
tary of  the  whole  State— of  the  Judiciary,  Legis- 
lative, Educational,  and  every  other  Department; 
so  as  to   bring  his   duties   and  powers  up    to  his 
title. 

Mr.  CH  ATFIELD  said  that  the  committee  had 
considered  the  arrangement  of  the  districts  in  re- 
lation to  the  duties  and  powers  of  the  heads  of  de- 
partments, a?  a  imtter  of  legislation.  The  legis- 
lature had  ample  power  to  do  this.  Mr.  C.  went 
on  to  argue  further  in  favor  of  fixing  the  salaries  in 
the  constitution,  rather  than  to  leave  it  to  the  vas- 
<;ili .it ion  of  legislation. 

Mr.  HOFFMAN  said  the  invariable  practice  of 
>vernment  for  a  series  of  years,  had  been  for 
the  legislature  annually  to  elect  a  committee  to 
examine  into  the  expenditures,  and  charged  with 
the  duty  of  seeing  whether  the  warrants  were 
drawn  according  to  law,  and  if  they  were  not,  it 
was  perfectly  in  the  power  of  the  legislature  to 
punish  the  officer.  Since  no  such  thing  had  ever 
occurred,  he  apprehended  therefore  that  the  war- 
rants were  drawn  according  to  law,  or  under  such 
circumstances  as  constituted  a  law  not  to  be  re- 
sisted. Every  warrant  issued  by  the  Comptrol- 
<  mined,  not  only  by  the  le- 
:  ive  committee,  but  by  the  Treasurer  him- 
self, who  by  law  was  required  to  pay  no  warrants 
unless  it  was  drawn  according  to  law.  The 
Comptroller  was  also  obliged  to  say  in  the  war- 
rant by  what  law  he  was  authorised  to  draw  it. — 
And  in  the  whole  history  of  the  government, 
for  the  last  quarter  of  a  century,  not  a  dol- 
lar has  been  lost  in  the  Comptroller's  or  the 

Treasurer's    Office    by    any    misapplication. 

The  comptroller  was  the  linancial  officer  of  the 
an  officer  must  also  have  charge 
of  what  is  necessary  in  order  to  make  that  sys- 
tem successful.  Mr.  H.  urged  that  therefore 
the  convention  would  riot  find  it  practicable  to 
divest  the  comptroller  of  his  supervisory  power 
over  the  banking  department.  Some  single  offi- 
cer, he  contended,  must  be  made  responsible  for 


all  these  matters,  and  have  charge  of  the  whole 
>f  them.  To  divide  the  duties  would  be  to  dimin- 
sh  the  responsibility.  The  complication  of  the  ac- 
counts in  that  office  did  not  arise  from  the  manner 
n  which  they  were  kept,but  from  the  complicated 
nature  of  the  subject,  which  would  not  be  obvia- 
ted until  we  got  rid  of  the  multifarious  cha- 
•actet  of  the  accounts,  and  the  action  of  the  go- 
vernment was  limited  to  subjects  more  direcily 
.vithin  its  range  and  jurisdiction.  The  Cornp- 
:roller  not  the  Treasurer  was  the  auditing  officer 
of  the  State,  and  this  was  right.  The  man  who 
received  money  should  never  be  the  officer  to  say 
what  money  is  received,  nor  he  who  pays  the  «me  to 
say  what  amount  v\as  paid.  If  human  experience 
h-..'il  not  settled  this,  it  had  never  settled  any  thing. 
Mr  H.  did  not  believe  that  the  great  and  respon. 
sible  duties  of  the  Comptroller  would  in  any  con- 
siderable degree  be  lessoned  for  some  five  or  ten 
years.  The  duty  of  overlooking  and  aggregating 
he  State  revenue  must  still  appertain  to  him.— 
This,  Mr.  H.  urged  was  safer  than  putting  it  in 
charge  of  a  commission.  This  had  been  tried  in 
his  state,  in  the  Commissioners  of  the  Canal 
Fund,  and  he  admitted  that  it  had  been  as  well 
managed  as  any  similar  amount  of  funds  had  ever 
:>een  managed  by  any  commission  whatever.  But 
turn  to  the  reports  of  that  commission,  and  it 
would  be  seen  that  more  than  half  a  million  cf 
the  funds  of  the  State  in  their  hands,  have  be- 
come if  not  utterly  worthless,  yet  entirely  nuavail- 
able.  And  during  the  same  period,  he  was  not 
aware  that  there  had  been  a  single  dollar  of  the 
funds  under  the  care  of  the  comptroller  ever  lost. 
This  was  evidence  of  the  danger  of  putting  the 
funds  of  the  State  in  the  charge  of  a  commission 
—  even  the  best  that  ever  existed. 

Mr.  MORRIS  had  supposed  that  the  whole  prin- 
ciple of    fixing  salaries  in    the  Constitution  was 
settled    in  the  action    of  the  Convention    on    the 
report  in    relation  to  the  Executive    department. 
He  thought  that  it  was  unwise  to  incorpnrale  in 
the  Constitution,  which  w<ts  intended  to  exist  per- 
haps tor  all  time  to  come,  the  exact  compensation 
to  be  paid  to  any  particular  officer.       It  would  be 
presupposing  the  continuance  of  the  existence  of 
all  ,hese  offices.     The  contrary  had  already  been 
shown  in  the  matter  o(    the  Surveyor    General. — 
The  time  may  also  come  when  some  of  these  oth- 
er officers    will  cease  to    have    any  duties  to    per- 
f"rm,  or  be  so  \vry  limited,  as  lo  require  '.m' 
ited  compensation.      It  had  happened,  and  mi^ht 
iijjain  in    this  country,    that   a    dulhir    w.xsld  be 
worth  as   much  as  two   or  three  now,    an-; 
when  a  dollar  compared    with  property   v. , 
be  worth    as  much.       It    therefore 'semed  to  him 
that  the  question  should  be  left  to    Legislate 
act  in  accordance  with  circumstances.     H<?  would 
leave  it  to  them,  with  the  restricion  that  th; 
ary  of  the  incumbent  should   b;-1  untouched  during 
his  term  of  office, 

Mr.  PERKINS  (bought  the  effect  of  nuttin? 
these  salaries  in  the  Constitution,  would  be  to  draw- 
out  the  instrument  to  an  unreasonable  len»tl^ — 
He  should  object  to  it  on  that  ground.  And  fur- 
ther, there  was  no  subject  upon  which  there  was 
such  a  variety  of  opinion  among  the  people,  as  to 
what  constituted  a  proper  salary  ;  and  he  feared 
therefore  if  inserted  here,  it  would  induce  the  dis- 
cussion of  matters  not  proper  in  the  organization 


500 


of  the  great  principles  ot'  a  government.  Mr.  P. 
went  on  to  allude  to  the  present  duties  of  the  sl*te 
officers,  suggest  in:  that  their  duties  could  not 
very  well  he  lessened  at  this  time. 

Mr.  VAN  SCHOONHOVEN  was  in  favor  of 
fixing  those  salaries  in  the  Constitution,  as  tending 
to  settle  a  subject  which  had  been  one  of  constant 
agitation  in  the  Legislature,  and  not  unfreqnently 
of  party  legislation.  He  thought  it  to  be  perfectly 
practicable  for  the  Convention  to  fix  the  salary 
for  ten  years,  at  ledst. 

Mr.  BASCOM,  suggesting  that  there  was  not  a 
quorum  present,  moved  to  rise  and  report  progress. 

The  question  being  put,  there  were  ayes  20, 
noes  25 — not  a  quorum. 

The  CHAIR  thought  there  was  a  quorum  pre- 
sent, and  again  put  the  question.  There  were 
ayes  26,  noes  34 — not  a  quorum. 

The  Secretary  then  proceeded  to  count  and  re- 
ported seventy  members  to  be  present.  A  quo- 
rum. 

Mr.  PATTERSON,  in  reply  to  Mr.  HOFFMAN 
and  in  proof  of  his  remarks  that  large  sums  of 
money  had  been  drawn  from  the  treasury  without 
authority  of  law,  went  on  to  quote  from  a  report 
made  to  the  legislature  of  1839  by  Chester  Loom- 
is  of  the  Senate,  and  Azariah  Smith  and  Fortune 
C.  White  of  the  Assembly.  In  that  report  it  was 
stated  that  during  the  past  year  different  sums  to 
the  amount  of  $1,290,000  had  been  drawn  from 
the  treasury  on  the  warrant  of  the  Comptroller 
without  the  authority  of  law.  Mr.  P.  pointed  out 
these  instances.  By  the  Revised  Statutes  it  was 
required  the  accounts  of  the  state  printer  to  be  au- 
dited by  the  Comptroller.  And  yet  the  commit- 
tee say,  that  his  accounts  to  the  amount  of  $28,- 
000  had  been  paid  by  the  Comptroller  without 
being  audited.  There  was  another  item  of  $400 
paid  to  the  Clerk  of  the  Assembly,  before  the  law 
authorized  the  same  to  be  paid.  Mr.  P.  read 
from  the  law  to  show  this.  Now,  as  to  the  next 
item  of  $1,260,696  43,  the  Comptroller  took  that 
sum  from  the  treasury  and  loaned  it  out  to  the 
several  counties  on  bond  and  mortgage.  The 
United  States  Deposite  Fund  was  to  be  paid  to 
this  state  in  four  instalments.  Three  of  them 
were  paid,  but  the  fourth  was  withheld.  The 
Comptroller  drew  his  warrant  on  the  treasury  for 
the  same  amount  of  $1,260,696  43  and  loaned  it 
on  bond  and  mortgage.  There  was  not  the  shad- 
ow of  the  authority  of  law  for  this  warrant,  and 
so  this  committee  say.  The  law  of  1837  autho- 
rized the  loan  only  of  what  was  received  from 
the  United  States  in  the  state  treasury.  There 
was  another  item  $2,561  paid  to  sheriffs  and  de- 
puties for  the  transportation  of  convicts  to  the 
Auburn  prison.  The  law  of  1835  required  these 
sums  to  be  paid  by  the  agents  of  the  prison. — 
There  was  no  authority  for  the  Comptrolller  to 
advance  this  sum.  As  to  the  assertion  that  the 
Treasurer  was  a  check  upon  the  Comptroller,  Mr. 
P.  would  ask  where  the  Treasurer  found  the  law 
which  authorized  this  warrant  for  $1,290,000? 
And  yet  he  paid  it.  He  (Mr.  P.)  did  not  charge 
this  as  wrong  but  it  was  evidence  of  the  oversha- 
dowing power  of  the  Comptroller. 

Mr.  HOFFMAN  said  that  in  every  Comptrol 
ler's  warrant  he  had  seen,  reference  was  made  to 
the  law  authorizing  it,  with  a  single  exception ; 
and  in  that  case  the  officer  was  not  able  to  find  it 


Mr.  H.  was  rather  of  opinion  that  it  existed,  if 
not  in  pne  law,  in  a  large  number.  The  officer 
jrobably  was  right  by  construction — certainly  by 
lecessity.  As  to  the  sum  paid  to  the  State  Prin- 
:er,  Mr.  H.  believed  it  was  the  settled  construc- 
tion of  the  then  law,  the  State  Printer  being  under 
contract,  that  the  Comptroller  was  to  advance  to 
lim.  As  to  the  other  instances  named,  the  gen- 
tleman would  find  that  they  were  according  to  the 
settled  construction  of  law,  known  to  the  legisla- 
ture, reported,  through  its  committees,  and  adopt- 
ed by  them,  except  in  relation  to  the  one  million 
of  the  deposite  fund.  The  authority  for  that  was 
considered  unquestionable.  Whetherthat  construc- 
tion was  right  or  not,  he  would  not  argue.  Whatev- 
er was  done,  was  done  with  the  knowledge  of  the 
egislature.  And  Mr.  H.  submitted  that  the  legisla- 
ture was  quite  competent  to  judge  whether  war- 
rants had  been  drawn  without  their  authority.-^- 
He  had  no  interest  in  defending  the  Comptroller. 
His  own  feelings  and  prejudices  were  on  the  oth- 
er side.  The  legislature  had  been  remiss  on  this- 
subject.  It  had  abandoned  its  duty,  and  had  giv- 
en over  to  Executive  officers  a  power  they  never 
should  have  had.  But  the  Comptroller  made 
the  best  disposition  of  that  one  million  that  was 
possible,  and  saved  it  to  the  State.  Had  it  been 
left  as  other  monies  were  to  the  banks,  it  would 
have  been  lost  with  them  in  '41  and  '42,  And  the 
legislature  had  never  attempted  to  recall  that  mo- 
ney. 

Mr.  CHATFILLD  referred  to  the  statute  defi- 
ning the  power  of  the  Comptroller  as  showing 
that  if  there  was  any  blame  to  be  attached  to  any 
person  in  the  matter  alluded  to,  the  Treasurer 
and  the  officers  of  the  deposite  banks  had  their 
share  in  it — and  to  show  that,  there  was  now  as- 
complete  a  system  of  checks  upon  the  disbursing 
officers  as  could  well  be  desired. 

Mr.PATTERSON  disclaimed  any  intention  of 
casting  any  imputation  on  the  Comptroller,  but 
insisted'that  the  i'act  he  had  stated-that  the  Comp- 
troller had  drawn  monies  without  authority  of 
law  was  still  uncontroverted. 

Mr.  BASCOM  moved  to  amend  so  as  to  fix  the 
salary  of  the  Comptroller  and  Secretary  of  State 
at  $2,000,  instead  of  $2,500.  Lost. 

The  committee  then  refused  to  strike  out  that 
part  of  the  section  fixing  salaries,  as  moved  by 
Mr.  KENNEDY,  30  to  38. 

Mr.  MARVIN  moved  to  strike  put  that  part  of 
the  section  fixing  salaries,  and  to  insert:— 

"  Each  of  the  officers  in  this- article  named,  shall  at  sta- 
ted times,  receive  lor  his  services  a  cumpt.  nation  which 
shall  not  be  inci  eased  or  dimmis- bed  during  the  term  lor 
which  he  shall  have  been  elected;  nor  shall  he  receive  to 
his  use  any  fees  or  perquisites  of  office  " 

Mr.  KIRKLAND,  the  house  being  thin,  moved 
that  the  committee  rise,  which  was  done. 

A  report  was  received  from  the  Comptroller, 
in  answer  to  Mr.  MURPHY'S  enquiry  into  the 
amount  of  stocks  held  by  citizens  of  New-York 
in  the  city  banks  and  other  monied  corporations, 
compared  with  the  amount  held  by  others.  [The 
report  states  the  portion  of  the  $54,000  held  by 
citizens  of  New-York,  to  be  about  $30,000.] 

The  Convention  then  took  a  recess. 

AFTERNOON  SESSION. 

The  Convention  immediately  on  assembling 
had  the  roll  called.  68  were  present 


501 


The  committee  then  went  into  committee  of 
the  whole  on  the  Report  of  committee  No.  6,  on 
public  affairs,  &c. 

Mr.  JONES  of  New- York ,  resumed  the  chair. 

The  proposition  offered  by  Mr.  MARVIN  in 
the  morning  was  negatived,  ayes  22,  noes  35. 

Mr.  DANA  moved  to  reduce  the  salary  -of  the 
Treasurer  from  $1500  to  $1000.  Lost,  without 
any  division,  only  about  10  siding  in  favor  of  it. 

Mr.  SALISBURY  ottered  a  proposition  to  pre 
vent  any  officer  of  government  receiving  any  fees, 
but  on  reflection  withdrew  it. 

Mr.  PERKINS  said  that  he  was  opposed  to  hav- 
ing the  treasurer  elected  by  the  people;  and  he 
would  therefore  move  to  have  it  struck  out. of  this 
section.  His  object  was  lo  provide  fur  the  ap- 
pointment of  the  Treasurer  as  he  was  now  appoin- 
ted, in  a  sepaiate  seel  ion.  The  reason  lor  his 
wishing  to  elect  the  Treasurer  by  a  different  mode 
fr-»m  other  stale  officers,  was  that  the  Legislature 
appointed  every  year  a  committee  to  examine  his 
accounts  at  the  close  of  the  fiscal  year  in  Septem- 
ber arid  report  their  condition  to  them  at  the  next 
session.  And  alter  this  is  done,  they  pioceed  to 
fUct  the  Treasurer.  It  this  officer  should  be 
elected  by  the  people,  iie  would  be  nominated  and 
elected  before  any  report  of  this  kind  could  be 
received.  It  would  be  exceedingly  unwise  to 
have  this  mode  ;  to  have  this  officer's  election  bro't 
before  the  people  every  two  ye-irs;  when  they 
Could  not  possibly  tell  how  he  had  behaved  whilst 
lie  had  been  in  office,  or  what  necessity  there  was 
for  any  change  at  all.  The  mode  of  appointment 
now  in  vogue,  had  worked  well,  and  he  did  not 
believe  that  tl^ere  was  that  call  Cor  a  change  in 
that  mode,  thai  perhaps  existed  in  regard  to  other 
officers,  w.iose  patronage  *vas  largei.  He  should 
also  propose  a  change  of  the  term  of  the  other 
stale  officers,  and  a  classification  of  them,  so 
that  one  of  them  should  be  elected  every  year. 
This  he  regarded  as  important,  so  as  not  to  have 
the  entire  government,  executive  and  adminis- 
trative liable  to  be  changed  once  in  two  years — 
or  if  these  officer*  should  be  elected  in  different 
years  from  the  executive,  so  as  not  to  have  the 
execuiive  and  administrative  officer  in  conflict 
politically  with  each  other.  If  elected  one  each 
year,  there  would  be  more  likely  to  be  an  infu- 
sion of  men  of  both  parties  in  the  boards,  which 
were  composed  of  the  State  officers,  who  would 
operate  as  a  check  upon  each  other.  As  to  the 
Attorney-General,  who  was  in  fact  the  legal  advi- 
ser of  the  executive,  it  was  proper  that  he  should 
come  in  and  go  out  with  the  executive;  and  he 
should  not  propose  to  change  his  term.  He 
should  prefer  also  to  have  the  Attorney-General 
appointed  by  the  Governor  and  Senate — but  he 
should  not  press  this  change.  He  urged  further, 
that  to  elect  the  Senate  once  in  two  years  and  all 
the  State  offices,  and  at  a  different  time  from  the 
Governor,  might  bring  all  the  branches  of  the 
state  government  in  conflict — or  if  elected  at  the 
same  time,  might  produce  a  clean  sweep  in  every 
department,  without  that  salutary  check  which 
parties  always  had  upon  each  other.  And  the 
tendency  would  be,  unless  there  was  some  alter- 
native, to  give  the  elections  one  year  an  exciting 
character,  to  be  followed  by  a  general  apathy  in 
regard  to  them  the  next. 

Mr.   SIMMONS   agreed  with  Mr.   PERKINS, 


that  it  would  be  highly  dangerous,  and  almost  un- 
precedented, to  have  the  Treasurer,  the  holder  of 
the  purse  of  the  State,  elected  by  the  people.-— 
There  were  some  peculiarities  in  this  office, 
which  made  it  proper  that  the  person  who  held 
it  should  be  the  creature  of  the  representatives  of 
the  people.  It  seemed  to  him  that  it  would  be 
imposing  too  much  trouble  on  the  people  to  make 
the  Treasurer  elective  every  year.  He  ought  to 
hold  his  office  at  the  pleasure  of  the  representa- 
tives of  the  people, — he  ought  not  to  have  24 
hours  that  he  might  call  his  own.  The  people, 
too,  would  be  apt  to  make  a  mistake  sometimes 
in  regard  to  the  qualifications  of  a  person  to  hold 
this  office.  He  remembered  an  instance  when 
the  Treasurer  of  Massachusetts  failed  and  ran 
away,  leaving  the  State  minus  for  a  considerable 
amount.  He  would  have  the  Treasurer  elected 
as  he  now  is,  making  our  representatives  respon- 
sible in  that  way  for  the  safe-keeping  of  the  pub- 
lic money.  He  liked  the  report,  generally  ;  there 
were  some  new  features  in  it  with  which  he  was 
pleased — that  of  making  a  State  Engineer  and 
Surveyor  among  others — but  he  would  have  the 
Treasurer  elected  in  the  old  way. 

Mr.  BASCOM  said  he  felt  compelled  to  sup- 
port the  proposition  of  the  gentleman  from  St. 
Lawrence,  to  provide  for  the  appointment  of  the 
Treasurer  by  the  Governor  and  Senate  or  by  the 
Legislature.  It  had  been  admitted  in  the  discus- 
sion to-day  that  the  duties  of  this  office  had  al» 
ways  been  well  discharged ;  that  the  public  trea- 
surer had  been  safe  in  the  charge  of  officers  ap- 
pointed by  the  Legislature.  The  question  in  ef- 
fect was  whether  this  officer  should  be  appointed 
by  the  Governor  and  Senate  or  Legislature,  or  by 
an  irresponsible  State  caucus  of  the  political  par- 
ty that  chanced  to  be  in  the  ascendency.  It  would 
be  seen  that  if  the  article  reported  by  the  com- 
mittee should  be  adopted,  that  a  State  caucus  or 
convention  for  the  nomination  of  one  or  more  of 
these  officers  would  be  necessary  every  year. — 
The  Secretary  of  State,  Comptroller,  Treasurer 
and  Att'y  General  were  to  be  commissioners  of  the 
Canal  Fund  and  were  to  be  a  part  of  the  Canal 
Board.  Now  he  asked  gentlemen  to  anticipate 
what  interests  would  be  best  represented  in  these 
annual  State  conventions.  While  there  were 
strong  interests  to  be  represented  in  all  the  coun- 
ties through  which  the  canals  passed,  would  such 
counties  as  Suffolk,  Queens,  Rockland,  Orange 
and  Dutchess  feel  sufficient  interest  in  the  nomi- 
nation of  a  single  State  officer  to  secure  a  faithful 
representation  in  these  yearly  conventions  ?  The 
truth  is  that  an  army  of  candidates  for  Canal  In- 
spectors, collectorships  and  other  canal  officers 
will,  in  the  character  of  regular  delegates  or  lob- 
by attendants,  control  the  action  of  these  nomina- 
ting Conventions,  &  when  their  nominations  come 
to  be  ratified  by  the  people,  will  claim  and  obtain 
the  offices  in  the  gift  of  the  Canal  Board  as  their 
reward.  He  saw  a  danger  in  the  propositions  of  the 
committee,  and  his  present  inclnation  was  to  wash 
his  hands  of  the  whole  scheme  of  submitting  the 
appointment  of  all  these  important  State  officers 
to  a  self-constituted  State  caucus,  who  would 
meet  at  their  own  expense  without  other  reward 
than  the  offices  they  could  obtain  by  the  aid  of 
the  candidates  they  assist  in  nominating.  He 
had  heard  it  said  that  the  public  voice  demanded 


502 


that  the  State  officers  should  be  elected  by  the 
people.  He  had  some  opportunity  of  knowing 
the  wishes  of  the  people  as  to  the  constitutional 
reforms  they  desired,  but  he  had  not  heard  so 
clear  an  expression  of  popular  opinion  upon  this 
question,  as  to  compel  him  against  his  judgment, 
to  support  the  proposition  of  the  committee  to 
make  elective  all  the  State  officers.  He  had  seen 
the  proposition  advocated  by  an  influential  jour- 
nal of  this  city,  but  not  until  after  the  State  offi- 
cers had  become  obnoxious  to  the  editor  of  that 
paper.  He  liked  to  stand  well  with  the  people  ; 
lie  habitually  had  great  respect  for  their  well  ma- 
tured opinion:  and  he  trusted  he  was  ready 
enough  to  suspect  the  sound  ness  of  his  own,  when 
in  conflict,  with  a  well  considered  public  opinion. 
He  had  another  objection  .to  the  report  of  the 
committee.  He  was  for  electing  the  judiciary. — 
By  the  report  of  the  majority  of  the  judiciary  com 
mittee,  and  by  some  of  the  minority  reports  the 
judges  of  the  supreme  court  were  to  be  elected. 
He  was  for  electing  them,  because  they  could  be 

•elected  in  single  districts,  so  that  the"  candidate 
would  be  within  the  influence  of  his  personal  ac- 
quaintance. When  the  people  could  decide  be- 
tween candidates,  from  such  acquaintance  they 
would  generally  decide  rightly,  but  when  called 
upon  to  decide  between  candidates  in  distant  parts 
of  the  State,  they  would  have  to  act  from  inform- 
ation furnished  by  partizans  and  would  olten  be 
deceived.  Now,  there  was  some  danger  that  we 
were  to  increase  the  number  of  important  elective 
officers  to  that  extent  that  the  people  might  not 
be  able  to  bestow  all  the  attention  to  the  respec- 
tive fitness  of  so  many  candidates  that  the  public 
interest  would  require.  He  feared  that  combina- 
tions would  be  formed  along  the  canal  lines,  by 
candidates  for  canal  offices,  that  would  be  too 

•  powerful  for  the  virtue  of  State  caucuses,  and 
that  the  propositions  of  the  committee  to  make 
the  entire  Canal  Board  elective,  would  lead  to 
bad  results  if  adopted. 

Mi    KiUHiVlOM)  lullmvod.     He    did    not    like 
ttie  jjiovisionsot  tne  amendment.     Gentlemen  in 


favor,  argued  thil  this  mutter  ot  salaries  snould  be 
l-jft  fo  (he  L.-gislaiure.  He,  Mr.  R.,  begged  to 
say  to  gentlemen  that  the  parry  in  power  might 
in-;  disposed  by  their  plan,  to  reward  political  la- 
vontes  by  giving  them  hiph  salaries,  and  they 
i,  it  su  disposed,  punish  political  enemies  by 
u  reduction  ot  oi  hers. 

Mr.  PERKINS  reunrked  that  the  amendment 
expressly  prohibited  a  Legislature  tiom  acting  on 
the  salaries  of  ofiicers  in  power.  They  cuuld 
only  act  piospeciiveiy. 

Mr.  RICHMOND  resumed  by  saying  that 
he  perh-.-e  iy  understood  this  whole  matter. — 
G«nlleine:i  told  us  they  were  in  mvor  of  leav 
ing  i  ins  whole  mailer  to  the  Legislature,  but 
at  ihe  same  time  they  look  special  care  to  pur  in 
a  clause  forbidding  t lie  Legislature  1'roiri  either  in- 
creasing or  decreasing  a  salary  during  the  time 
the  incumbent  wf*s  in  office.  They  aisoiell  us  why 
distrust  the  Legislature  ?Now,  he  (Mr.  i-1.,)  wish 
eU  to  say  that  he  had  no  distrust  of  !t,e  Legisialure 
nor  of  the  people,  if  gentle  men  will  L.O  with  him 
and  leave  this  whole  mailer  open  to  ihe  people, 
through  their  representatives.  But  when  iheir  pro- 
position is  {airly  examined,  we  shall  find  that  its 
[radical  results  will  be.  to  impose  upon  the 


tax  payers  of  this  State,  a  Jarge  batch  ot  sal-  . 
aried  officers,  receiving  an  amount  of  salaries  near- 
ly if  not  quite  double  the  amount  heretofore  paid 
in  this  State.  What  is  this  proposition?  It 
that  the  Legislature  at  its  first  meeting  after 
the  adoption  of  this  Constitution  (it  they  shall  so 
adopt  it)  shall  proceed  to  fix  these  salaries,  and 
that  when  so  fixed  they  shall  remain  unalieied 
during  the  term  for  which  they  are  elected  or  ap- 
pointed. We  are,  judging  from  the  report 
of  the  judiciary  committee,  to  have  some 
forty  or  fir'ty  salaried  judges  holding  for  some  eight 
years  each,  and  their  salaries  are  to  be  fixed  per. 
manently  for  that  time.  Judging  fiom  this  prop- 
osiiion,  and  when  all  this  is  to  be  done  unaltera- 
bly by  on«  Legislature,  who  can  calculate  the 
lobbying  which  will  then  be  done  about  (his  Cap- 
itol to  influence  the  Legislature  to  fix  these  sala- 
ries hiuh,  and  if  they  should  do  so  and  fix  the  sal- 
aries of  the  judges  exorbitantly  high,  this  system 
will  tie  up  the  hands  of  the  people's  representa- 
tives for  at  least  eight  years.  Now  he  thought 
this  system  will  be  distrusting  both  the  Legisla- 
ture and  the  people.  In  conclusion,  he  would 
only  say,  that  he  would  be  willing  to  compromise 
this  matter  in  one  of  two  ways,  either  to  fix  these 
salaries  in  the  Constitution,  or  to  leave  the 
matter  unrestricted  to  the  Legislature,  so  that 
if  by  any  management  they  are  made  too 
high  the  next  Legislature  may'  reduce  them. 

Mr  CAMPBELL  'briefly  followed. 
Mr.  SIMMONS  thought  the  committee  were  pro- 
ceeding under  a  sort  of  impulse  which  did  not 
admit  of  due  consideration.  He  confessed  it  was 
with  some  surprise  that  he  found  so  many  here 
that  were  willing  to  make  the  treasurer  elective, 
and  for  two  years.  Thefe  seemed  to  be  a  wonder- 
ful charm  in  adding  names  to  the  ticket.  The 
complaint  in  his  county  was  that  there  were  so 
many  elective  officers — because  it  imposed  on  the 
people  so  much  labor.  He  heard  a  gentleman 
from  Clinton  county  say — and  he  lived  among  a 
very  intelligent  population  too — that  there  were 
so  many  names  on  the  town  ticket  now,  that  he 
could  get  his  horse  elected  supervisor,  and  nobody 
would  know  it. 

Mr.  STETSON  :— That  probably  was  some  dis- 
appointed gentleman  wrho  had  lost  his  election. 

Mr.  STRONG  did  not  see  why  the  people  could 
not  nominate  and  elect  a  Treasurer  as  well  as  a 
Governor.  Nor  did  he  see  why  Treasurers  elect- 
ed by  the  people  might  not  be  made  responsible 
and  removable,  at  the  pleasure  of  the  legislature, 
as  well  as  a  Treasurer  elected  by  the  legislature. 
Mr.  SIMMONS  farther  explained  his  views. 
He  wanted  some  security.  Bail  was  good  for 
nothing.  We  must  have  the  security  in  the  qual- 
ifications of  the  man. 

The  motion  of  Mr.  PERKINS  was  rejected. 
Mr.  PERKINS  then  moved  to   strike   out  the 
words,   "  and  shall    hold  their   offices  for  two 
years."     He   intended  to  follow  this   up  with   a 
motion  to  classify  these  officers. 
The  motion  was  lost. 

Mr.  TAGGART  moved  to  amend  so  that  no 
one  of  the  State  officers  should  receive  any  fees, 
or  perquisites  besides  the  annual  salary.  Agreed 
to. 

Mr.  DANFORTH  moved  to  amend  so  as  to 
make,  the  Commissary  General  also  elective  by 


503 


the  people.     He  had  never  been   ;ible  In  S66  why 

•  m-tinn  should  be  made    between  tb.-  fY»m- 

State  «-.llieers.     One  of 

the  leading  objects  of  tins  Convention  was,  by 
1,-iviii--  the  election  of  these  officers  to  the  people, 
to  break  up  the  central  power  here — and  the 
principle  of  popular  election,  if  applied  to  some 
of  them,  should  be  applied  to  all.  He  was  aware 
that  this  office  was  not  generally  considered  as 
one  of  much  importance — but  to  him  there  had 
always  been  a  sort  of  necromancy  about  it,  for  it 
was  dagerly  sought  after.  If  it  was  an  office  of  any 
impori;i, ice,  '-very  section  of  the  State  ought  to 
have  the  privilege  of  having  its  candidate.  As  it 
was,  the  selection  would  perhaps  always  be  made 
from  the  city  and  county  of  New-York. 

Mr.  CHATFIELD  opposed  the  motion.  The 
committee  had  fully  considered  this  matter,  and 
regarding  this  office  as  a  purely  military  office, 
not  one  of  the  Executive  cabinet,  they  concluded 
to  leave  the  matter  of  his  appointment  to  the  mi- 
litary committee,  with  the  Adjutant  General. — 
As  to  its  being  an  office  much  sought  after,  it  was 
because  to  military  men  it  was  a  post  of  distinc- 
tion worth  having  without  regard  to  emolument. 
Mf.  S  i'E  i  >Oi\  could  not  see  the  reason  tor  the 
di"tnii'tu)u  btr ween  the  nmi  who  held  the  purse 
and  the  man  who  had  the  custody  of  the  military 
property  ot  Ibe  s:atc — nor  why  the  one  should  be 
.iveand  not  the  other.  As  to  this  article 
g.-iMM-ally,  Mr.  S.  said  he  should  probably  approve 
of  most  of  it,  except  that  it)  relation  to  the  inspcc 
tion  of  state  prisons.  And  when  we  came  to  that 
part  of  the  article,  he  would  endeavor  ro  picture 
out  the  co>ir -.•  by  '.vine!)  irresponsible  men  would 
creep  fi inn  ih  ditch  info  positions  where  they 
should  not  be.  He  was  orif-y  surprised  indeed  that 
farther  provision  was  not  made  in  this  article  thai 
-iio'iid  elect  those  who  were  to  be  under  the 
care  of  the  insper  tms.  P  .;.>ular  or  unpopular,  he 
would  endeavor  to  avoid  the  momentary  impulse 
that  fed  the  minds  of  some— for  he  had  rathei 
stand  riijht  with  those  who  should  come  alter  him 
than  feed  the  breath  of  a  morbid  public  sensibility 
in  M'tn-  directions.  How,  be  asked,  would  in 
sut'ci nrs  be  appointed  ? 

'  Mr.  UHA'ITIELD  tilled  to  order.  The  gen- 
tlernan  was  M«I  discussing  the  question. 

Mr.  STETSON  was  willing  it  should  be  out  o 
order.  He  was  only  going  to  say  now  that  the 
people  were  fully  competent  with  respect  to  al" 
officers  where  they  had  the  means  and  opportu- 
But  in  putting  off  all  these  du- 
>ple,  we  should  see  that  we  die 
not  overtask,  not  their  ability  or  judgment,  but 
.ic.iiinery  by  which  nominations  were  made 
in  convention — and  Mr.  8.  went  on  to  describe 
the  mode  in  which  nominations  were  usually  mad* 
in  conventions — and  to  say,  that  after  the  fatigui 
of  disposing  of  some  of  the  more  important  nom 
i  nations  had  been  irouc  through  with,  the  mino 
offices — the  little  somethings — were  usually  given 
to  appease  disappointed  persons  and  to  make  up 
a  stron ir  ticket,  so  that  while  the  first  nominaliot 
won:  .  those  made  at  the  end,  would  be 

the  worst  that  could  be  made.  So  it  would  be  ii 
nominating  inspectors  of  state  prisons.  They 
were  officers  that  should  possess  peculiar  quali 
fications — and  in  his  judgment  it  wras  far  less  ob 
jectionable  to  elect  a  judge  than  an  officer  of  a 


o\v  grade  of  duty  comparatively,  in  which  the 
ublic  felt,  no  gencr;;!  interest. 

Mr.  CHATFIELD  rcpln-d,  saying  that  he  it- 
gretted  to  see  Ivre  so  t't.  ijuent  a  disposition  to  dis- 
:uS8  every  thing  but  the  question.  The 
ornmittee  would  hear  wi 'ness  that  he  had  on 
ivory  occasion  endeavored  to  confine  himself 
o  the  matter  in  hand,  and  if  others  would  do  the 
same,  we  should  £et  along  with  business  in  less 
han  naif  the  time. 

Mr.  STETSON  rose  here,  but— 

All.  CHATFIfiLD  would  not  be  interrupted. 

Mr.  STETSON  would  not  permit  the  gentle- 
man to  re;vl  him  a  lectute. 

A  debate  of  a  personal  character  here  occurred 
between  Messrs.  CHATFIELD  and  STETSON, 
when  the  matter  dropped. 

Mr  SHEP.-»RD  continued  the  debate,  urging 
:hat  this  officer  came  properly  under  the  cogni- 
sance of  the  militaty  committee. 

Mr   CROOKER  sublimed  the  amendment. 

Mr.  DANFORTH  insisted  that  the  Commissary 
?r!jii"ra!  was  in  no  sense  a  military  officer,  but 
stood.it  the  head  of  a  department,  or  bureau  •  and 
as  such  had  considerable  patronage. 

The  amendment  of  Mr.  D.  was  lost. 

The  committee  then  rose  and  reported  progress, 
and  :he  Convention 

Adjourned  to  nine  o'clock  to. morrow  morning. 

TUESDAY,  (53d  day,)  August  4. 

Prayer. by  Rev.  Mr.  MEYER. 

Mr.  STETSON  said  that  a  speech  in  the  Argus 
attributed  to  him  was  made  by  some  other  gentle- 
man. 

Mr.  CHATFIELD  said  he  would  take  it  offthe 
gentleman's  hands. 

Mr.  BRUNDAGE  said  that  on  Friday  last  he 
had  voted  "aye"  to  limit  the  sessions  of  the  le- 
gislature to  90  days  ;  his  name  was  not  recorded 
and  he  wished  it  to  be. 

The  vote  on  Friday  was  a  tie  vote  and  the  Con- 
vention refused  to  let  him  have  it  recorded  now 
as  it  would  change  the  result. 

Mr.  BRUCE  offered  this  resolution  : — 

Resolved,  That  the  Comptroller  be  requested  to  report 
to  this  Convention  the  amount  paid  to  the  <  ornmissary 
al  as  -siu-.h,  for  his  services  during  the  year  J1 

Mr.  PATTERSON  an  amendment 

to  include   his  travelling  expenses.     His  salary 

;7pQ. 

M  i'.  BRUCE   amended  the  resolution  accord- 
Mr.  PERKINS  moved  to  add  "  and  the  amount 
ofrnon-  him." 

Mr.  RICHMOND 'thought  that  would  not  do. 
Some  men  spent  more  than  they  received. 

Mr.  TALLMADGE  suggested  a  change  of 
phraseology,  so  thatit  should  read,  "the  amount 
of  money  disbursed  by  him." 

Mr.  P'KN  KIN'S  as>i  iiied  to  the  amendment. 
The  resolution.,  as  amended,  was  adopted. 
Leave  of  absence  fo>  a  grunted  to  Mr. 

SIMMONS,  and  for  one  week  to  Mr.  VV.  TAYLOR. 
Mr.  A.  W.  YOUNG  offered  a  resolution  that 
the  report  of  committee  No.  G  should  be  taken 
out  ol  committee  of  the  whole  that  djy  at  half- 
past  one.  It  had  been  discussed  sufficiently  ;  we 
were  wasting  a  great  amount  of  time  in  unneces- 
sary speeches  and  we  should  never  be  able  to  get 


504 


through  with  the  proper  business  of  the  Conven- 
tion unless  some  such  plan  was  adopted. 

Mr.  CHATFIELD  moved  to  lay  the  resolution 
on  the  table.  This  was  an  important  report  and 
it  could  not  be  properly  got  along  with  without 
further  discussion. 

Mr.  SHEP  ARD  would  suggest  that  another  dis- 
position be  made  of  it— inasmuch  as  the  learned 
and  excellent  gentleman  from  Wyoming  had  ef- 
fected his  object  by  making  a  speech,  he  (Mr. 
S.)  would  move  that  he  (Mr.  Y.)  have  leave  to 
withdraw  it. 

Mr.  JORDAN  hoped  Mr.  CHATFIELD  would 
withdraw  his  motion  to  lay  on  the  table. 

Mr.  CHATFIELD:  What  lor? 

Mr.  JORDAN:  That  I  may  show  why  this  re- 
solution ought  to  pass. 

Mr.  CHATFIELD:  Oh,  no. 

The  motion  to  lay  on  the  table  was  lost  Ayes 
20.  Noes  not  counted. 

Mr.  JORDAN  desired  to  see  this  resolution 
pass;  th^re  had  already  been  deliberation  enough, 
and  also  discussion  on  this  report ;  besides  it  was 
hardly  possible  to  keep  a  quorum  together  in  com- 
mittee of  the  whole  But  when  they  come  to 
act  in  the  House,  and  have  to  take  a  vote  by  the 
ayes  arid  noes,  this  seems  to  act  like  an  alarm  bell, 
and  then  one  half  of  the  members  come  in  to  hear 
and  to  think  about  the  subject  before  them  for  the 
fiist  time.  They  had  much  belter  get  at  it  in  the 
house,  where  they  can  fix  their  attention  upon  it, 
and  dispose  of  it. 

Mr.  CHATFIELD  hoped  the  resolution  would 
not  pass. 

It  was  adopted,  ayes  49,  noes  24. 

Mr.  BASCOM  ottered  this  :•— 
Resolved,  That  all  resolutions  having  for  their  object 
the  saving  of  tie  time  of  this  Convention,  be  hereafter 
parsed  upon  without  debate. 

Mr.  KENNEDY  also  hoped  that  all  speeches 
having  the  same  object,  be  hereafter  not  deliver- 
ed in  the  Convention,  but  be  written  out  by  gen- 
tlemen and  handed  to  the  reporters.  (Laughter,) 
This  kind  of  business  seems  now  to  have  been 
taken  up  by  the  gentleman  from  Wyoming,  (Mr. 
YOUNG.)  And  whereas,  there  was  no  man  who 
had  unnecessarily  wasted  so  much  ot  the  time  of 
the  Convention  as  he  had  in  every  possible  way, 
in  his  improper  and  unjust  efforts  to  get  an  addi- 
tional member  for  his  county  of  Wyoming. 

Mr.  BASCOM  :  I  am  afraid  my  resolution  to 
save  time  will  cause  a  great  many  speeches  to 
be  made,  Mr.  Chairman,  and  I  therefore  with- 
draw it.  [Laughter.] 

STATE  OFFICERS. 

The  Convention  went  into  committee  of  the 
whole— Mr.  JONES  resumed  the  Chair. 

The  consideration  of  the  report  of  committee 
No.  2,  on  the  State  officers,  was  renewed. 

The  first  section,   as  amended,  was  then  read. 

Mr.  HART  said  that  the  resolution  which  he 
had  heretofore  ottered,  he  wished  to  have  insert- 
ed at  the  end  of  the  report.  Agreed  to. 

Mr.  PATTERSON  moved  to  reconsider  that 
part  of  the  amendment  which  forbids  the  public 
officers  from  receiving  any  fees.  The  effect  of 
this  would  be  to  prevent  all  of  their  officers  from 
receiving  any  fees  for  work  done  for  the  public 
in  their  respective  offices  ;  although  the  fees  to 
be  received  were  to  go  into  the  public  treasury 


for  the  benefit  of  the  whole  community.  Now, 
he  certainly  could  see  no  good  reason  why  these 
officers  might  not,  under  proper  circumstances, 
receive  these  fees,  provided  they  were  to  go  into 
the  public  treasury,  and  not  into  their  own 
pockets. 

Mr.  CHATFIELD  defended  his  report.  He 
objected  to  these  officers  receiving  fees.  The 
system  was  liable  to  much  abuse.  The  govern- 
ment ought  not,  after  selling  a  man  a  piece  of 
public  land,  and  taking  the  money  for  the  same, 
then  to  charge  him  $1  for  making  out  the  deed 
for  the  land.  The  people  ought  not  to  be  charged 
any  fees  or  compensation  for  work  of  this  charac- 
ter done  for  them  by  their  own  hired  servants — 
these  public  omcers. 

Mr.  PATTERSON  spoke  of  the  immense  amount 
of  labor  this  would  entail  on  these  officers.  He 
instanced  the  case  of  the  Holland  Land  Company, 
where  it  was  necessary  in  order  10  secure  a  clear 
title  to  a  tract  of  land,  to  go  back  thiough  the 
grants  and  charters  of  the  reigns  of  several  mon- 
archs,  the  letters  patent  of  James  to  the  Pb'niouth 
Company,  confirmed  by  King  Charles,  which  cost 
that  Company  trorn  $300  to  $500  to  get  a  correct 
map  of  this  tract,  and  al?o  a  certified  copy  of  it, 
so  as  to  make  good  their  title..  Now  it,  was  too 
much  to  ask  the  Secretary  of  State  to  do  all  this 
work  for  nothing  There  would  be  no  end  to  the 
demands  made  upon  him.  if  this'was  tolerated. 

Mr.  TALLMADGE  moved  to  amend  the  sec- 
tion so  as  to  make  it  read,  that  none  of  these  pub- 
lic officers  shall  receive  any  fees  for  their  own  use  ; 
to  be  put  in  the  8th  line  ;  and  he  would  have  it 
left  to  future  legislation  to  say  what  fees  shall  be 
charged  for  any  public  work  which  fees  are  to  go 
into  the  public  Treasury.  He  contended  that  if 
we  did  not  hold  these  fees  in  terrorem  over  the 
heads  of  applicants,  there  would  be  lawyers 
enough  found  who  would  want  the  whole  record 
of  the  Secretary  of  State's  office,  and  of  the  Comp- 
troller's offices,  copied  for  their  especial  benefit. 
And  they  must  quadruple  all  the  clerks  and  other 
officers  there. 

Mr.  PERKINS  said  that  many  papers  had 
been  copied  unnecessarily  and  had  given  much 
trouble  ;  when  they  were  intended  only  for  the 
benefit  of  private  individuals.  He  was  in  favor  of 
the  motion  to  reconsider. 

It  was  agreed  to. 

Mr.  TAGGART  then  withdrew  the  amend- 
ment he  ottered  yesteiday,  and  substituted  the 
following,  to  be  inserted  in  the  Sth  line,  alter  the 
word  "dollars:"  "but  neither  ol  the  office  is  men. 
tioned  in  this  section  shall  receive  anyoihcr  or 
further  fres,  perquisites  or  compensation  lor  any 
sei  vices  perlormed  by  them,  or  either  <1  them,  in 
their  official  capacity," — which  was  adopted. 

Mr.  JORDAN    moved  to  strike   out  the  word 
and  '  in  the  5:h  line— agreed  to. 

The  1st  section  was  then  agreed  to,  as  amended. 

Mr.  SMI  I'H  proposed  as  the  second  section  of  the 
article,  one  providing  jlhat  a  Stale  Super  intendent 
of  Common  Schools  shall  be  elected  lor  iwo  years, 
with  an  annual  salary  of  two  thousand  dollars. 
Mr.  S.  said,  on  the  original  organization  of 
our  school  system  in  1814,  a  superintendent  was 
appointed  at  an  annual  salary  of  $700 ;  and  when 
in  1821  this  office  was  abolished  by  the  legisla- 
ture, and  its  duties  devolved  upon  the  Secretary 


505 


of  State,  the  number  of  school  districts  was  onl) 
about  one  half  the  present  number,  and  the  num 
her  of  children  under  instruction  in  the  common 
schools  considerably  less  than  one  half  the  num 
her  now  instructed.  The  amount  of  public  mon 
ey  annually  received  and  disbursed  in  the  severa 
districts  instead  of  £'27f>,0()0,  the  amount  now  an 
nuully  appropriated,  was  less  than  $80,000.  Th< 
correspondence  of  the  department  was  very  light 
and  all  the  duties  required  of  this  officer  were 
nominal  when  compared  with  those  now  impose 
by  law.  Since  that  period  the  whole  system  has 
undergone  a  thorough  revision.  We  have  now 
upwards  of  11,000  school  districts,  comprising 
nearly  o'0,nO()  officers,  900  town  and  60  county 
superintendents,  and  nearly  800,000  children  un- 
der instruction.  The  correspondence  of  the  de- 
partment alone  requires  the  constant  attention  of 
an  active  and  experienced  clerk,  and  the  exami- 
nation and  decision  of  the  numerous  appeals 
growing  out  of  the  administration  of  the  system, 
the  preparation  of  the  annual  report,  and  of  the 
necessary  forms  and  instructions  for  the  guidance 
of  the  several  local  officers,  the  apportionment  of 
the  public  money,  and  the  supervision  of  its  ex- 
penditure within  the  time  and  for  the  purposes 
provided  by  law,  are  of  themselves  sufficient  to  ab- 
sorb the  time  and  task  the  energies  of  any  officer. 
He  would  take  away  from  the  Comptroller  much 
of  his  over-shadowing  power,  carrying  as  he  does 
the  banks  in  one  awn  and  the  canals  in  the  oth^r. 
There  was  no  earthly  reason  why  one  or  two  State 
officers  should  have  this  immensely  overshadow- 
ing power.  We  are  about  to  commence  a  reform, 
and  he  wished  to  see  the  different  portions  of  the 
State  represented  in  this  respect  as  they  are  by 
their  candidates  in  the  Legislature  ;  so  that  the 
east,  west,  r.orth  and  south  parts  of  the  State 
might  have  a  like  influence  on  these  various 
boards  ;  and  not  as  now,  the  whole  power  of  over- 
shadowing influence  might  rest  in  the  hands  of 
one  or  two  men.  All  this  could  be  done  without 
much  additional  expense,  by  making  heads  of  de- 
partments out  of  head  clerks,  who  worked  for 
$1200  to  $1500  a  year. 

Mr.  RICHMOND  said  that  the  superintendence 
of  these  common  schools  had  always  been  very 
well  managed  under  the  present  system  as  far  as 
he  had  had  any  knowledge;  and  whilst  this  was 
the  case — and  he  had  heard  no  complaint  to  the 
contrary— why  should  they  go  to  work  and  elect 
another  officer  with  a  higher  salary  than  is  now 
paid  to  do  the  work  no  better  and  perhaps  not  as 
well.  There  seemed  to  be  a  little  too  much  con- 
solidation in  the  matter.  He  did  not  want  to  see 
the  Prussian  system  adopted  in  this  country — 
where  the  minister  of  public  instruction  selected 
all  the  books,  &c.,  and  had  all  to  say  as  to  how 
the.  school  was  to  be  managed.  He  would  not 
abolish  the  office  because  they  might  now  and 
then  get  a  bad  officer. 

Mi .  .S  1  KUi\G  also  opposed  the  amendment.  It 
wa>  lost. 

The  second  stctioo  was  then  read  as  follows:— 

^2.  The  State  Engineer  and  S'trvpyor  shall  be  chosen 
at  a  gi-iu-ial  ejection,  and  shall  hold  his  offi -e  iur  two 
>ut  nu  pe/ sou  shall  b«elected  to  s.aidotti;e  who  is 
not  a  pi acticnl  engineer,  and  h.is  not  pursued  civil  engi- 
naming  a»a  tiiisiur&s  and  profession  .01-  seven  suc>  > 
years  before  his .  l«.-.tion.  He  Khali  receive  an  annual  salary 
of  two  thousaud  dollars  and  his  necessary  expenses  while 

38 


tiaveJimgon  official   uubims*,  ou  iue  hue  oi  L 
and  public  works  of  this  State. 

Mr.  RHOADES  moved  to  insert  "  4  years"  as 
the  term  of  office,  instead  of  "  two  years."  No 
officer  that  would  have  to  be  elected  in  this  go- 
vernment  required  such  long  experience  to  ena- 
ble him  to  fulfil  his  duties  a*  the  Slate  Engineer. 
He  would  require  at  least  two  years  to  become 
acquainted  with  our  canals,  and  alter  having  de- 
voted that  period  for  such  a  purpose,  it  would  be 
but  fair  to  keep  him  in  office  tor  at  least  two  years 
tnore.  The  State  wanted  all  possible  experience 
and  talent  in  this  office;  and  also  permanence 
arid  continuity.  He  above  all  things  wanted  this 
office  to  be  free  from  the  various  mutations  of 
party. 

Mr.  NICHOLAS  hoped  the  amendment  would 
not  be  adopted.  If  a  State  engineer  was  a  good 
officer,  he  would  be  re-elected  by  the  people  be- 
yond all  di.ubt.  And  if  he  be  not  a  valuable  offi- 
cer, of  good  scientific  standing  and  of  integrity, 
he  will  be  removed  by  the  people  at  the  end  of  2 
years,  a«  he  ought  TO  be. 

Mr.  RHOADES  said  that  these  Engineers  are 
sure  after  all  to  be  chosen  from  political  consid- 
erations, and  every  new  party  that  comes  into 
power  will  remove  the  head  State  officers,  &c 

Mr.  RICHMOND  said  that  all  past  experience, 
in  relation  to  this  matter  showred,  that  these 
public  officers  generally  learn  by  their  ex- 
perience only  to  entrap  and  deceive  the  people 
3y  their  false  estimates ;  and  this  was  generally 
done,  either  for  their  own  individual  aggrandize- 
me.nt,  or  to  serve  party  purposes.  They  had  a 
sample  of  this  on  the  canals;  the  old  estimates 
on  the  Erie  and  Champlain  canal,  did  not  vary 
$1,000,000  from  the  result.  But  it  had  been  very 
different  ever  since.  He  believed  with  others 
that  if  an  officer  of  this  kind  performed  his  duty, 
and  was  a  valuable  and  skilful  Engineer,  that 
;he  people  would  re-elect  him,  and  this  was  the 
*;rue  system. 

Mr.  HOFFMAN  said  that  if  by  adopting  this 
provision,  they  were  to  procure  first  rate  engin- 
eering talent,  then  the  form  of  it  might  perhaps 
be  well  enough  But  he  was  afraid  that  by  adopt- 
ng  such  a  plan  of  eUcting  this  officer  much  mis. 
hiet  miiiht  be  rendered  permanent.  A  trade 
iught  nev.-r  to  be  converted  into  an  office.  Civil 
engineering  is  a  trade;  it  is  an  occupation;  and 
we  should  be  very  cautious  how  we  turn  a  trade 
nto  an  office.  Anything  which  has  heretofore 
iistained  itself  a*  a  trade,  should  he  allowed  to 
r?nrain  so;  and  our  business  here  is  to  reinstate 
as  trades  those  things  which  have  been  drawn,  in- 
o  the  vortex  of  party  politics.  This  should  al- 
ways be  done,  wherever  we  can  by  possibility  do 
f .  If  they  succeeded  in  electing  an  engineer-in- 
hief,  what  then?  He  must  have  assistant  en- 
'ineers,  and  these  must  have  studied  in  his  schot.l 
f  politics  whatever  that  may  be.  It  the  comniil- 
ee  intend  that  this  business  of  engineering  which 
las  heretofore  remained  a  trade,  shall  hereafter 
>e  converted  into  an  office,  and  thus  necess  >i  ily 
e  drawn  into  the  vortex  of  party  politics,  all  the 
ubordinates  must  by  necessity  be  drawn  in  with 
t.  All  that  has  hitherto  stood  the  test  as  a  trade 
ie  desired  should  remain  so  ;  and  all  trades  that 
lave  heretofore  been  drawn  into  the  vortex  of 
jarty  politics,  he  desired  to  see  reinstated  in  their 
egitimate  positions.  All  the  various  inspectors 


506 


guagers,  markers,  measurers,  &c.,  present  quite 
an  array,  compared  to  almost  any  other  class  that 
can  be  named.     You  will  continually  meet  with 
difficulties  if  you  attempt  to  convert  this  trade  of 
engineering  into  political  office.     If  he  is  elected 
as  an  Engineer,  he  will  be  an  Engineer,  whether 
he  knows  anything  of  engineering  or  not;  and  at 
the  same  time  he  will  be  bound  by  the  shackles 
of  his  political  party.     He   was   opposed  to  th 
whole  scheme,  and  much  preferred  the  old  claus 
should  remain  as  it  is  with  regard  to   the  selec 
tion  of  a  Surveyor  General,  and  leave  to  the  le 
gislature  to    put  such  a  construction  on  wha 
are  the  legitimate  duties  that    he    is  to    per 
form,  as   they  may  deem  right  and  proper. — 
That  we  need  no  Engineer-in-Chief  lor  the  publi 
service,  he  fully  believed;  that  such  a  proposihor 
ought  not  to  be  adopted,  he  was  entirely   satisfied 
This  business  of  Engineering  for  the  State,  is  now 
held  in  commission.  That  commission  can  review 
the   labois  of  the  State   Engineer;  they  can   cal 
others  to  assist  them  in  reviewing  those  labors. — 
And  with  regard  to  the  estimal.es,  the  gentleman 
from  Genesee  (Mr.  RICHMOND,)  is  mistaken;  we 
got  the  estimates  lor  the  Erie  and    Chainplainca 
i.al   at  last  within  $2S,000,UOO ;  but  it    was  atte 
many  previous  estimates  had  been  made    and  ten 
dered.      in   the   estimates  of  the  Chernung   an« 
Crooked   Lake  canals,    the  canal  was   made   ba( 
enough  to  enable  the  Engineer  to  keep  within  his 
own  estimates.     But  in  1840  the  repairs,  £c.,   o 
the  locks  alone  cost  as  much  as  the  whole  work 
And  in  all  others  the  cost  was  about  double  the 
estimate;  arid  so   it  must   be,  tor  an  engineer-in- 
chiefwill  noi  like  to  do  the  work  so    badly  as   to 
keep  within  his   own  estimate.     But  the  fact  is 
that  the  business  of  engineering  should  be  held  in 
commission.     It  you    do  not  do  this,   your   cana 
commissioners   should  no  longer  be    regarded    as 
canal   commissioners.     Y'  u  ought,  to  change   the 
entire  character   of  that    commission.      And   he 
was  satisfied  that  the   Convention    was   not    fully 
aware  ot  the  great  extent  of  the  change  in  prac- 
tice which  this  proposition  contemplated. 

Mr.  CHATFIELD  was  surprised  to  see  the  op- 
position to  this  section  in  the  quarter  fiom  which 
it  came.  When  his  Iriend  trorn  Herkimer  was 
making  rapid  strides  in  the  advocacy  of  measures 
of  reform,  he  w;is  surprised  inat  he  should  oppose 
this  proposition,  having  for  its  object  ihe  secur 
ing  of  such  relorm.  The  committee  were  satis, 
fied  that  much  of  the  embarrassments  which  I  he 
State  now  experienced,  was  directly  attributable 
to  bad  engineering,  from  a  want  of  knowledge  in 
those  who  planned  the  works.  The  State  had 
been  deceived  and  deluded  by  false  estimates  to 
undertake  works  which  would  otherwise  have 
been  left  alone.  As  to  the  objection  that  this  was 
making  a  trade  an  office,  Mr.  C.  would  ask  the 
gentleman  if  we  had  not  already  done  the  same 
with  two  other  offices?  What  was  surveying  but 
a  trade  ?  And  yet  we  had  made  the  office  of  Sur- 
veyor General.'  Is  the  office  ot  Attorney  General 
anything  more  than  a  trade?  The  Attorney  Gen- 
eral must  be  a  practicing  attorney  and  counsellor, 
and  yet  we  had  made  an  office  of  the  Attorney 
Generalship.  The  same  objection  would  reject 
the  appointment  of  those  two  officers  as  readily  as 
it  would  the  en^ineer-iri-chief.  One  is  no  more 
a  trade  than  the  other.  Mr.  C.,  in  reply  to  an 


allusion  of  Mr.  H.  to  the  debate   on  the  qualifica- 
tion for  Governor,  asked  him  if  he  had   been  con- 
sistent ?     Did  he  not  vote  then  to  restrict  the  peo- 
ple in  f  heir  choice?       He  vo'.ed   for  the  30   years 
qualification  and  the  five  years  residence  ;   and  vet 
he  asks  us  with  much  gravity,  why  we  want  such 
and  such  qualifications  for  this  work  or  that  office. 
Why   then  should   he  object  to  this  provision? — 
Mr.  C.  proceeded  to  advocate  the  section,  and  lo 
urge  the   necessity  ot  its  adoption.       Heretofore 
our  Engineers  had  been  interested  in  the  under- 
taking of  public  works,  that  thus  they  might  oh- 
tain  employment.       Hence  the  secret  of  false  es- 
timates.    For  this  reason  he  would  have  a   Chief 
Engineer,  whose  salary  should  be  fixed,  and  not  at 
all   dependent   upon  the  fact  whether   the  State 
was  carrying   on  public  improvements  or  not. — 
There  was  a  vast  difference  between  general  quali- 
fications for  a  general  office,  and    particular  quali- 
tications  for  a  particulai    office.     The  gentleman 
objects  that  the  nominating  convention  would  not 
select  the   best  men  for  thnt   office,  but    one  that 
belonged  to  tl.eir  political  school.     He  did  not  be- 
lieve this;  he  believed   the  people  would  select  a 
man  with  reference  to  his  qualifications  as  an  en- 
gineer.    The  committee   No.  6  reported  this,  be. 
cause  they  believed  that  much  of  the  engineering 
done    for  the  State    has    been    heretofore  done  by 
men    who   have   been   guilty  of  making  low  and 
false  estimates,  with  a  view  to. deceive  the  public 
and  the  authorities  of  the  State.     The  proposition 
of  the  committee  is  to  elect  an  officer  whose  salarv 
shall  not  depend  on  whether  or  not  the  State  shall 
be  engaged  in  public  works;  he  will    thus  guard 
us  against  all  errors,  and  stand  on  his  dignity  as  a 
public  officer  to   correct  all   false   calculations. — 
The  State  has  suffered  always  by  the  Canal  Board 
being   utterly  ignorant  of  practical   engineering, 
and  thus  being  continually  imposed  upon  by  (Lose 
who    were  interested    to  deceive    them.     If  thev 
had  in    that    Board    a    Chief    Engineer,  who  is  a 
practical  man,  and  an  officer  of  State,  one  who  is 
not  at   all  interested  in  any  of  I  he  works  himself, 
or  in    any  misrepresentation,  he  Would    instantly 
detect  all  errors  as  soon  as  they  are  made.     As  to 
disqualifications,    perhaps  the    insertion  of  those 
were  not  necessary.     The  committee  would  allow 
iim  to  have  his  travel  f^es  as  an  inducement   for 
his  State  Engineer  to  go  round  the  State,  and  in- 
ipect  the   public  works.      It   has  frequently  hap- 
>ened  that  the   Canal  Board  has   not   been  on  the 
me  of  the  public  works  over  once  a  year-     They 
have  left  the   canals  to  take   care    of  themselves; 
>ecause  they  hnve  a  reduced  fixed  salary,  and  no 
llowance  for  traveling.    Theiefore  the  committee 
wanted  to  hold  out  an  inducement  to  this  Engineer 
o  leave  his  office  frequently  during  the  year,  and 
nspect  all  those  works 

The  CHAIRMAN  said  the  merits  of  the  whole 
icction  were  not  in  order ;  only  the  question   of 
ime  ;  four  years  instead  of  two  years. 
Mr.  PERKINS  was  opposed  to  the  amendment. 
Mr.  RHOADES'  amendment  was  negatived. 
Mr.  NICHOLAS  moved  to  strike  out,  "  but  no 
>erson  shall  be  elected  to  said  office  who  is  not  a 
>ractical  engineer  and  has  not  pursued  civil  en- 
ineering  as   a  business  and  profession  for   seven 
uccessive  years   next  before   his  election,"  and 
nsert,  "  He  shall  be  a  practical  engineer." 
Mr.  RHOADES  approved  of  so  much  of  the 


507 


amendment  as  proposed  to  strike  out,  but  not  o 
the  rest.  Doubts  and  perplexities  would  arise 
if  these  words  were  retained  in  any  shape. 

Aii-.  NICHOLAS  moved  to  strike  out  the  word 
44  but  no  person  shall  he  eU.cted  to  said  office  wh 
is  not  a  practical  engineer  and  has  not  pursuec 
civil  engineering  as  a  business  and  profession  fo 
seven  successive  years  next  before  his  election 
and  insert,  "  He  ^hall  be  a  practical  engineer." 

Mr.  RHOADES  approved  of  so  much  of  the  a 
mendment  as  proposed  to  stuke  out,  but  not  o 
the  rest.  Doubts  and  perplexities  would  arise,  i 
these  words  were  retained  in  any  shape. 

Mr.  NICHOLAS  would  not  insist  upon  the  ad 
dition  of  these  words  it  it  was  thought  inexpedi 
ent.  He  tnought  however  it  would  be  much  easi 
er  to  ascertain  whether  a  man  was  a  practical  en 
gineer,  than  if  would  whether  he  had  been  so  en 
gaged  for  <even  years  previous  to  his  election. 

Mr.  PERKINS  thought  it  was  belter  either  t< 
adhere  to  the  qualifications  as  prescribed  by  lh< 
committee,  or  to  stnke  them  out  altogether.  The 
words  practical  engineer  would  not  be  sufficient!) 
efficient,  for  any  one  who  had  studied  a  week 
might  be  a  practical  engineer  within  the  meaning 
of  the  Constitution. 

Mi.  BLJRU  should  vote  for  the  amendment   a 
being;   better  than  the  original   section.     But    he 
would  like  s  ill  better  to  strike  out  all  that  refers 
to  qualification.       Practical    engineering   was    his 
trade, and  he  knew  that  the  number  of  years  engagec 
jo    this  business  was  no  test  of  competency.     He 
had  some  doubts  whether  the  section   was  at    al 
needed.     But  if  there  was  a  necessity  lor  a  Sur- 
veyor General,  ti;is  proposition  was  much  prefer- 
able to  the  former  orovision. 

Mr.  WHlT/Sdid  not  dissent  from  the  commit- 
tee as  to  the  extent  of  the  qualifications  required 
but  he  objected  to  any  whatever  being  imposed 
in  the  Constitution.  He  thought  the  people  were 
quite  capable  to  judge  of  the  qualifications  of 
any  officer  thev  had  to  elect. 

Mr.  LOOMIS  was  in  favor  of  striking  out,  and 
indeed  would  go  further.  The  idea  of  having  a 
State  Engineer  provided  for  in  the  Constitution, 
was  not  to  his  taste  He  did  not  like  the  idea  of 
having  the  people  called  upon  to  investigate  the 
scientific  attainments  of  a  few  distinguished  in- 
dividuals in  the  State,  alone,  over  all  the  other 
citizens  of  the  State.  It  seemed  to  him  that  the 
committee  had  mistaken  the  duties  required  of 
the  officer  at  the  head  of  that  department.  He 
was  not  expected  to  go  out  into  the  fields  himself 
and  discharge  the  duties  of  Engineer — he  should 
be  a  man  of  good  sound  sense,  and  not  tied  down 
to  the  technical  rules  of  the  profession.  From 
what  we  had  experienced,  he  had  no  peculiar 
attachment  for  the  office  of  Engineer.  Mistaken 
estimates  and  the  manner  in  which  the  public 
works  had  been  executed  under  those  officers, 
had  cost  the  State  hundreds  of  thousands  and 
millions  of  dollars.  It  was  a  good,  sound,  prac- 
tical man  that  was  required ;  one  who  would  be 
able  to  give  directions  to  the  Engineers,  and  to 
take  charge  of  the  records  of  the  departments, 
and  also  to  do  the  business  of  the  Surveyor  Gen- 
eral. The  people  along  the  line  of  the  public 
works  would  startle  at  the  idea  of  an  Engineer 
being  placed  in  charge.  It  was  well  understood 
among  the  contractors  now,  that  it  was  highly 


important  to  secure  the  services  of  the  Engineer, 
and  this  system  of  favoritism  would  not  be  im- 
proved by  this  proposition.  He  was  therefore  in 
favor  of  striking  out  the  whole  of  these  qualifi- 
cations, and  then  of  striking  out  the  whole  sec- 
tion, or  of  substituting  another  word  for  Engineer. 
He  concurred  with  the  committee,  that  it  was 
necessary  to  substitute  an  office  in  place  of  the 
Surveyor  General,  but  of  all  others,  he  would  not 
select  that  of  Engineer — it  was  not  the  duties  of 
the  place.  He  would  move  an  amendment  to  the 
effect — that  a  Commissioner  of  the  Public  Works 
should  be  elected  for  two  years,  to  have  charge  of 
the  department  heretofore  belonging  to  the  Sur- 
veyor General  with  the  addition  of  the  canals. 

Mr.  CHATFIELD  said  the  committee  suppos- 
ed they  could  do  nothing  more  properly,  in 
framing  the  article,  than  to  decide  the  element- 
ary principles  which  shall  govern  the  depart- 
ments, leaving  to  the  Legislature  to  decide  upon 
their  appropriate  powers  and  duties.  If  there 
were  certain  powers  provided  for,  they  might  be 
supposed  to  be  restricted  to  those  powers  alone, 
whereas  there  might  be  others  com  ing  legitimate- 
ly and  properly  within  the  scope  of  their  depart- 
ment. The  committee,  in  examing  the  duties  of 
the  Comptroller,  found  it  necessary  to  divide 
them,  and  place  one  branch  under  the  charge  of 
another  department,  and  they  decided  that  it 
should  be  in  the  department  of  the  canals,  as  one 
in  which  the  greatest  interests  were  involved. — 
If  gentlemen  did  not  like  the  term  by  which  the 
office  was  designated,  they  might  substitute 
something  else.  He  believed  that  it  was  proper 
to  have  a  practical  engineer,  an  expert,  as  this 
officer.  Gentlemen  who  wish  to  employ  a  car- 
penter, would  not  lookout  for  a  man  of  good 
common  sense  instead  of  an  expert  to  do  his 
work;  and  the  same  principle  was  here  involved. 

Mr.  SALISBURY  suggested  that  the  amend- 
ment of  Mr.  NICHOLAS  should  be  modified  so  as 
mly  to  strike  out  after  the  words  "practical  en- 
gineer," in  the  third  line,  to  the  end  of  the  sen- 
ence.  This  would  accomplish  the  object  of  the 
gentleman  without  further  addition. 

Mr.  NICHOLAS  assented. 

Mr.  LOOMIS  said  the  proposition  was  to  place 
in  engineer  at  the  head  of  the  Canal  Commis- 
lioners  with  other  engineers  below  them.  If 
he  Canal  Commissioners  had  been  imposed  upon 
>y  the  engineers  heretofore  while  they  had  ex- 
:lusive  control  over  them,  it  was  not  going  to  rem- 
idy  the  difficulty  by  placing  a  man  selected  from 
he  same  class  over  the  commissioners.  Mr.  L. 
urther  objected  to  the  proposition. 

Mr.  WATERBURY  referred  to  his  experience 
n  the  Delaware  and  Hudson  Canal,  as  showing 
hat  it  was  not  always  the  length  of  service  which 
made  a  competent  engineer. 

Mr.  E.  HUNTINGTON  had  not  intended  to  say 

word  on  this  section  until  a  motion  should  be 
made  to  strike  it  all  out.  He  agreed  that  it  was 
mportant  there  should  be  a  competent  head  to 
his  Department.  He  had  not  a  doubt  but  mil- 
ions  of  the  public  money  had  been  lost  for  want 
f  such  an  officer.  But  he  was  opposed  utterly 
o  entrust  the  selection  of  such  an  office  to  poli- 
cians  acting  in  a  nominating  Convention.  They 
vould  know  as  much  about  the  qualifica- 
ions  of  such  an  officer  as  of  the  geology  of  the 


508 


moon.  With  all  respect  for  the  people,  Mr.  H. 
must  say  that  this  was  a  question  upon  which  they 
could  not  pass  understandingly.  This  man 
should  be  appointed  by  the  Commissioners  hav- 
ing charge  of  the  canals.  It  would  then  be  made 
their  duty  to  investigate  the  qualifications  of  the 
man  that  they  should  appoint.  This  whole  sec- 
tion seemed  to  him  to  be  inexpedient.  With  a 
salary  of  $2000  you  could  never  command  the  ser- 
vices of  an  Engineer  who  should  be  fully  com- 
petent for  the  place.  Engineers  of  the  first  class 
now  get  $4000  or  $5000  per  annum  from  private 
corporations,  who  know  that  it  is  for  their  in- 
terest to  place  their  works  in  the  charge  of  men 
of  the  best  talent.  Mr.  H.  trusted  that  because  a 
bad  measure  had  been  christened  with  the  name 
of  Reform,  it  would  not  therefore  be  adopted  by 
the  Convention.  Besides  the  objection  urged  on 
the  score  of  salary,  he  would  say  that  two  years 
would  not  be  sufficient  for  a  man  to  become  fully 
acquainted  with  the  canals  of  the  State.  This 
officer  should  hold  his  place  during  the  pleasure 
of  the  appointing  power.  Mr.  H.  would  admit 
that  there  was  much  of  truth  in  the  charges  made 
that  the  public  money  had  been  squandered.  The 
case  referred  to  by  the  gentleman  from  Herki- 
mer  (Mr.  LOOMIS)  might  be  unjustifiable.  The 
Engineers  might  not  have  acted  there  with  due 
judgment.  But  it  was  out  of  our  power  to  de- 
cide upon  the  case.  We  must  know  all  the  par- 
ticulars. There  might  have  been  good  reason  for 
this  act — it  might  have  been  injudicious.  The 
Department  he  again  admitted,  had  suffered  for 
want  of  a  head.  We  should  have  such  a  man  and 
pay  him  a  sufficient  salary.  But  he  objected  in 
toto  that  he  should  be  selected  by  a  political  cau- 
cus and  be  elected  by  a  political  party.  We 
should  run  a  great  risk  in  the  first  place  of  not 
getting  a  good  man,  and  if  we  did  he  might  be 
turned  out  of  office  in  two  years. 

Mr.  RHOADES  had  a  v%ord  to  say  in  answer  to 
gentlemen  who  were  in  favor  of  striking  out  the 
whole  section.  From  the  arguments  whicn  had 
been  used  by  fhe  gentlemen  from  Herkimer  and 
from  Genesee,  he  w.is  led  to  believe  that  there  ex 
isted  an  imperious  necessity  for  the  creation  ot 
such  an  office  as  was  heie  provided  for.  The 
false  estimates  alluded  to  by  the  gentleman  from 
Genesee,  (Mr.  RICHMOND.)  and  the  statements  ol 
the  gentleman  from  Herkimer,  (Mr.  LOOMIS,) 
prove  that  it  was  necessary  to  have  an  offictr  who 
was  responsible  directly  to  the  people  for  the  pro. 
per  performance  of  his  duties.  This  would  also 
prevent  h  s  haying  a  personal  interest  in  the  work 
on  which  he  v\as  engaged  for  the  State.  He  should 
be  a  practical  engineer,  to  prevent  hid  being  de- 
ceived by  the  subordinate  officers  and  agents 
•whom  he  might  have  under  his  direction.  He 
hoped  the  section  would  remain. 

The  motion  ol  Mr.  NICHOLAS  was  then  adopt- 
ed. 

Mr.  SALISBURY,  moved  to  strike  out  the  pro- 
vision  lor  paying  the  travelling  expenses  ot  th. 
engineer.  He  was  not  satisfied  that  there  should 
be  tins  permission  to  charge  an  indefinite  amount 


for  travelliriii  expenses. 

Mr.  PERKINS  opposed  this  amendment. 


The 


great  complaint  was  not  that  these  corrmissioners 
were  paid  too  much,  but  that  they  did  not  travel 
as  much  as  they  ought  along  the  line  of  the  ca- 


nal. These  lees  should  be  an  inducement  tor 
them  to  travpl. 

Mr.  PATTERSON  and  Mr.  BRUCE  followed 
briefly  in  favoi  ot  striking  out — when  the  motion 
was  injected. 

Mr.  MARVIN  moved  to  strike  out  all  of  the 
section  which  prescribes  the  salary  of  this  officer. 
Lost. 

Mr.  RICHMOND  moved  to  amend  so  that  the 
sum  paid  for  travelling  expenses  should  in  no 
year  exceed  $200. 

Mr.  WATERBURY  moved  to  fix  the  sum  at 
$500. 

The  amendment  of  Mr.  W.  was  debated  by 
Messrs.  RICHMOND  and  WATERBURY,  and 
rejected. 

That  of  Mr.  RICHMOND  was  agreed  to— 37 
to  28. 

Mr.  LOOMIS  then  offered  the  following  sub- 
stitute for  the  whole  section  : 

($•2.  A  Commissioner  of  Public  Works  shall  be  elected 
by  the  electors  of  the  State,  to  hold  his  office  for  two- 
years.  He  shall  have  charge  of  the  department  heretofore 
belonging  to  the  Surveyor  General,  and  also  of  records, 
documents,  and  business  in  the  Comptroller's  office,  per- 
taining to  the  canais  and  State  prisons,  public  buildings 
and  lands,  subject  to  regulation  by  law. 

Mr.  PATTERSON  moved  to  amend  by  striking 
out  all  after  the  words  "  Surveyor  General,"  and 
insert  "and  also  of  the  Canal  department  as  now 
exercised  by  the  Comptroller."  Mr.  P.  wished 
to  divest  the  Comptroller  of  his  present  control 
of  the  Canals.  He  would  make  this  man  the 
head  of  that  department. 

This  after  some  debate  was  rejected,  as  was  the 
substitute  of  Mr.  LOOMIS. 

Mr.  HARRIS  moved  to  strike  out  the  whole 
section.  Agreed  to — 42  to  32. 

The  3rd  section  was  then  read  as  follows : 

&  3.  Three  Canal  Commissioners  shall  be  chosen  at  the 
general  election  which  shall  be  held  next  after  the  adop- 
tion of  this  Constitution,  one  of  whom  shall  hold  his  office 
tor  one  year,  one  shall  hold  his  office  for  two  years  and 
one  shall  hold  his  office  for  three  years.  The  Commis- 
sioners of  the  Canal  Fund  shall  meet  at  the  Capitol  on  the 
first  Monday  of  January  next  after  such  election,  and  de- 
termine by  ballot  which  of  said  commissioners  shall  hold 
his  office  for  one,  year,  which  for  two,  and  which  for  three 
years  ;  and  there  shall  be  elected  annually  thereafter  one 
canal  commissioner  who  shall  hold  his  office  lor  three 
rears.  The  annual  salary  of  a  canal  commissioner  shall 
be  sixteen  hundred  dollars,  and  his  necessary  expenses, 
while  travelling  on  the  line  of  the  canals  of  this  State  on 
official  business  as  such  commissioner. 

Mr.  STRONG  moved  to  strike  out  all  that  gives 
to  these  officers  necessary  travelling  fees. 

The  amendment  was  rejected. 

Mr.  PERKINS  then  moved  to  strike  out  so 
much  as  fixes  the  salary.  Lost,  36  to  37. 

The  4th  section  was  then  read,  as  follows : — 

k  4  Three  Inspectors  of  State  orisons,  shall  be  elected  at 
the  general  election  v  hich  shall  be  held  next  af;er  the 
adoption  of  this  Constitution  one  of  whom  shall  hold  his 
office  for  one  year,  one  for  two  years,  and  one  lor  three 
years.  The  Governor,  Secretary  of  Stat*,  a«d  Comptrol- 
ler, shall  meet  at  the  Capitol  on  the  first  Monday  of  Janu- 
ei  y  next  succeeding  such  election,  and  determine  by  Jot 
which  ot  said  Inspectors  shall  hold  his  office  lor  one  year, 
which  for  two,  and  which  lor  three  years;  and  there  shall 
be  elected  annually  thereafter  one  Inspector  ol  Slate  prisons 
who  shall  hold  hi«  office  for  three  years.  Said  Inspectors 
khallhave  the  charge  and  superintendence  of  the  State 
prisons,  and  shall  appoint  all  the  officer*  therein,  and  shall 
receive' four  dollars  each  for  every  day  actually  occupied 
in  officialduty  at  the  prisons  or  at  the  Capitol,  and  ten  cent* 
for  every  mile  actually  travelled  on  official  business.  All 


509 


vacancies  in  the  ortice  ol  such  lii*peetor  shall  be  tilled  by 
the  Governor,  till  ihe  next  election. 

Mr.  PERKfNS  moved  10  strikeout  "ten  cents' 
and  insert  "  five  cents  "  Agreed  to. 

Mr.  ST.  JOHN  moved  lo  s'rike  out  "four  dol- 
lor-*''  and  in>.  rt  •'  three  dollars." 

Mr.  PERKINS  opposed  the  motion,  but  it  was 
agreed  to,  41  to  29. 

Mr.  TAGGART  moved  to  strike  out  all  that  re 
lates  to  comj.ensnlior..  Lost,  34  to  37. 

Mr  KENNEDY  thought  we  might  save  anoth 
er  shilling,  and  he  moved  to  strike  out  "  $3"  and 
insert  «•  &2,&7£."  Lost. 

The  5lh  section  was  then  read  as  follows: — 

(j  6.  The  lieutenant-governor,  speaker  of  the  Assembly, 
secretary  of  state,  comptroller,  treasurer,attorney-genera!, 
and  state  engineer  and  survey  or,  shall  be  the  commission- 
ers of  the  land  office. 

The  lieutenant-governor,  secretary  of  state,  comptrol- 
ler, treasurer,  an*!  a'torney  general,  shall  be  the  commis- 
sioners 01  the  can^il  fund. 

The  canal  board  shall  consist  of  the  commi-sioners  of 
the  caml  fund,  the  state  engineer  and  surveyor,  and  the 
canal  commissioners. 

Mr.  BRUCE  moved  to  strike  out.  the  words 
"  State  Engineer  and  Surveyor"  wherever  they 
occurred.  Agreed  to. 

Mr.  MARVIN  moved  to  strike  out  the  whole 
section.  It  was  time,  he  thought,  to  stop  legislat- 
ing and  eo  to  work  to  make  a  Constitution.  All 
thi«  had  heretofore  bren  regulated  by  law. 

The  hour  of  H  o'clock  having  arrived,  thecom- 
mittee  of  the  wliole  rose  and  reported  the  article 
to  the  Convention. 

Mr.  KENNEDY  moved  that  the  House  again 
go  into  comnvttee  of  the  whole  on  the  report. 

The  PRESIDENT  decided  this  motion  not  to 
be  in  order. 

Mr.  KENNEDY  then  moved  to  recommit  the 
report. 

This  was  opposed  by  Messrs.  STRONG  and 
JORDAN  and  rejected. 

Mr.  SHEPARD  moved  that  the  Convention 
take  up  the  report  where  the  committee  of  the 
whole  left  off'.  Agreed  to. 

The  question  then  recurred  on  the  motion  of 
Mr.  MARVIN  to  strike  out  the  fifth  section. 

Mr.  SHEPARD  urged  that  these  boards  might 
be  found  to  be  an  unnecessary  part  of  the  ma- 
chinery of  government — and  it  would  be  unwise 
to  fasten  them  on  the  State,  and  beyond  the  reach 
of  the  legislature. 

Mr.  CHATF1ELD,  after  expressing  his  regret 
at  the  vole  abolishing  in  effect  the  office  of  Surveyor 
General,  went  on  to  sustain  the  section  as  one  i  f  the 
most  important  points  in  it.  It  designated  Ihe 
officers  or  boards  that  were  to  have  charge  of  the 
three  great  interests  of  the  state,  the  canals,  the 
canal  fund,  and  the  public  lands,  which  belonged 
to  the  school  fund— and  th*se  boards  would  be 
necessary  so  long  as  yve  had  canals,  a  canal  fund, 
and  public  hnds. 

Mr.  SHEPARD  replied,  and  Mr.  PERKINS 
followed  in  opposition  to  the  motion  to  strike  out. 

The  motion  to  strike  out  was  lost. 

The  sixth  section  was  then  read  as  follows : 

^6.  No  law  shall  be  passed  creating  or  continuing  any 
Office,  forthe  ins|  ertion  ol  any  aiticle  of  merchandize, 
p-oduce  or  manufacture  (except  salt  manufactured  within 
this  state.)  and  all  existing  laws  authorizing  or  providing 
for  such  inspt-ction,  and  the  offices  created  thereby,  are 
hereby  abrogated 


Mr.  MURPHY  moved  the  following  substitute 
f  jr  the  section  : — 

"  No  law  shall  be  parsed  creating  or  continuing  any  of- 
fice lor  the  \veighingor  measuiing  or  inspection  ol  ai  y  ar- 
ticle ol  merchandise,  produce  or  manufacture,  or  ('oh  Ant- 
ing any  authority  to  create  any  such  office;  and  ell  i  .\ist- 
ing  IHWS  authorizing  or  piovhling  lor  sui  h  weighing  or 
meisuringor  inspection,  or  delegating  such  autlniity, 
and  the  officers  created  lor  such  purposes,  are  hereby  ab- 
rogated. Nor  shall  any  laws  be  pas.-ed  granting  licenses 
forcanyingon  any  trade,  calling,  business  or  profession 
and  all  licens*  s  and  laws  authorizing  the  same  are  hereby 
abrogated.  But  nothing  in  this  section  contained  shall 
prevent  the  Legislature  from  exercising  such  control  over 
the  salt  springs  and  salt  manufactured  from  the  spme,  us 
they  may  deem  proper,  or  from  enacting  suchsanitory 
laws  as  the  public  welfare  may  require." 

Pending  this  mgtion,  the  committee  took  a  re- 
cess. 

AFTERNOON  SESSION. 

There  was  a  call  of  the  House.  Only  61  mem- 
bers answered .  Before  the  Clerk  had  got  through 
calling  the  absentees,  four  more  came  in. 

The  PRESIDENT.  The  Clerk  announces  65 
members  present.  A  quorum  is  present. 

Mr.  PATTERSON  :  I  suppose,  sir,  that  65 
members  is  virtually  a  quorum;  but,  sir,  there 
ought  to  be  more  than  65  members  present  in  or- 
der to  make  a  Constitution  for  the  great  State  of 
New-York.  And  if  we  cannot  induce  members 
to  come  as  at  present,  we  ought  to  adopt  a  new 
system.  Either  let  us  meet  at  a  different  hour, 
or  have  one  longer  session  ;  we  must  adopt  some 
way  to  get  a  full  house.  Some  gentlemen  have 
never  been  here  of  an  afternoon ;  and  what  is 
more  they  never  will  be  here. 

Mr.  WORDEN  said  that  in  order  to  test  the 
sense  of  the  House  upon  this  point,  he  would 
move  to  adjourn. 

This  he  was  induced  to  withdraw. 

Mr.  MURPHY  said  he  would  send  up  his 
amendment  of  the  morning  in  a  modified  form. 

Mr.  NICHOLAS  begged  him  to  withdraw  it 
for  a  moment,  whilst  he  (Mr.  N.)  sent  up  the  fol- 
lowing, as  a  new  section  to  come  in  just  before 
the  last. 

^5.  The  Treasurer  may  be  suspended  from  office  by  the 
Governor  until  thirty  days  trom  the  commencement  ol  the 
next  session  of  the  Legislate,  whenevei  it  shall  appear 
to  him  that  such  Treasurer  has  in  any  particular  viol  ted 
his  duty,  upon  report  of  the  Comptroller.  The  Governor 
shall  appoint  a  competent  person  to  discharge  the  duties  of 
the  office  during  such  suspension  of  the  Treasurer. 

Mr.  RHOADES  asked  why  they  should  wait 
for  a  report  from  the  Comptroller  ?  Why  not 
give  the  governor  the  power  to  remove  him  in- 
stantly on  proof  of  misconduct.  There  might  be 
a  collusion  between  the  comptroller  and  the  trea- 
surer. 

Mr.  NICHOLAS  modified  it  so  as  to  leave  it 
entirely  to  the  governor. 

Mr.  HARRISON  asked  why  he  did  not  make 
it  more  general,  so  as  to  extend  to  other  officers. 

Mr.  PERKINS  said  this  provision  was  not 
broad  enough  to  meet  the  case  ;  it  would  be  found 
inadequate  to  secure  the  treasury  if  the  Conven- 
tion shall  decide  that  the  people  may  elect  a  trea- 
surer, before  his  accounts  are  examined. 

Mr.  NICHOLAS  said  it  was  thus  intended  to 
enable  the  governor  to  suspend  a  treasurer  when 
suspected,  and  to  turn  him  over  to  the  legislature 
afterwards,  and  enable  them  to  investigate  his  ac- 


510 


counts  and  impeach  or  restore  this  officer.  The 
remedy  would  be  pretty  effectual  and  speedy  and 
some  such  provision  is  necessary  because  we  now 
elect  a  treasurer  for  two  years  instead  of  one,  and 
he  has  control  of  all  the  funds  of  the  state. 

Mr.  BAKER  moved  to  add  after  the  word 
"Gov."  "  during  the  recess  of  the  legislature." 
This  section  would  address  itself  better  to  his  ap- 
preciation if  the  authority  of  the  governor  should 
be  limited  to  the  time  during  the  recess  of  the 
legislature.  By  the  present  reading  of  it,  the  go- 
vernor was  allowed  to  remove  this  officer  in  Feb- 
ruary, and  appoint  a  successor,  who  would  hold 
his  office  until  the  next  year  at  the  same  time. 

Mr.  PERKINS  thought  there  was  no  danger 
of  the  power  being  abused  by  the  Governor.  The 
Governor  would  not  dare  remove  an  officer  elect- 
ed by  the  people,  except  upon  the  most  stringent 
proofs  equivalent  to  cauoe  of  impeachment. 

The  amendment  of  Mr.  BAKER  to'add  after  the 
word  "  Governor,"  the  words  "during  the  recess 
of  the  Legislature,"  was  agreed  to. 

The  section  was  then  adopted. 

Mr.  JORDAN  said  that  in  order  to  try  the  sense 
of  the  Convention,  whether  they  would  retain  a 
fixed  salary  for  all  these  officers  in  the  Constitution 
he  would  move  to  strike  out  the  salaries  in  the  1st, 
2d,  and  3d  sections,  and  this  would  test  the  ques- 
tion as  to  how  these  salaries  are  to  be  settled. — 
Mr.  J.  however  withdrew  this. 

Mr.  MURPHY  then  sent  up  his  modified  sub- 
stitute for  the  last  section,  thus : — 

All  offices  for  th«j  weighing,  guaging,  culling  or  inspec- 
ting any  merchandise,  produce,  manufacture  or  commodi- 
ty whatever,  are  hereby  abolished;  and  no  such  office 
shall  hereafter  be  created  by  law;  but  nothing  hereby  con- 
tained shall  prevent  the  legislature  from  exercising  such 
control  over  the  salt  manufactured  from  the  springs  be- 
longing to  the  state  as  it  may  deem  proper. 

Mr.  MURPHY  now  offered  his  substitute  for 
the  last  section,  (as  above)  and  went  on  to  say, 
that  in  proposing  the  amendment  to  the  section 
reported  by  the  committee,  he  only  sought  to 
carry  out  more  fully  the  principle  asserted  in  the 
section.  There  were  many  officers  besides  those 
of  inspection,  partaking  of  the  same  character, 
and  equally  impolitic  and  unjust,  which  ought  to 
be  abolished  ;  and  he  had  framed  his  amendment 
so  as  to  embrace  them.  For  one  he  returned 
thanks  to  the  committee  for  bringing  the  question 
of  our  inspection  laws  so  directly  before  the  Con- 
vention. They  had  performed  a  noble  duty  to  the 
country  and  to  public  opinion.  If  there  was  one 
subject  more  than  another  of  general  legislation 
settled  in  the  public  mind,  it  was  the  abolition 
of  those  laws ;  and  we  should  illy  perform  our 
duty  here  if  we  did  not  conform  to  its  wish, — evi- 
dences of  which  crowded  upon  us  on  every  side. 
The  legislature  in  1813  acknowledged  it  when 
they  abolished  compulsory  inspection,  weighing 
and  measuring, — yielding  to  the  demands  of  the 
producer,  trader  and  consumer.  The  public  press 
and  political  conventions  in  various  portions  of 
the  state  have  urged  it  upon  us  ;  and  none  more 
so  than  in  his  own  county.  He  felt  gratified  that 
he  could  stand  here  acting  in  consonance  with 
that  public  opinion  and  at  the  same  time  accord- 
ing to  i he  dictates  of  his  own  judgment.  He  had 
always  considered  those  laws  as  improper  inter- 
ferences with  the  private  dealings  of  individuals 
on  the  part  of  the  government,  whose  province 


was  to  extend  equal  protection  to  the  lives  and 
property  of  its  citizens,  but  not  to  regulate  their 
business  transactions  with  each  other.  When 
government  has  provided  such  protection  it  has 
discharged  its  principal  duty.  It  might,  for  the 
purposes  of  such  protection,  tax  its  citizens  and 
adopt  regulations  for  the  collection  of  public  re- 
venue ;  but  it  should  not  legislate  between  indi- 
viduals. Men  were  sharp-sighted  to  see  their 
own  interests.  Left  to  themselves  they  would 
not  be  subject  to  frauds  in  any  such  degree 
as  they  now  are  by  these  attempts  to  affix  a 
value  to  the  articles-  of  trade.  The  assumption 
of  this  office  on  the  part  of  the  State  begets  laxity 
and  induces  a  reliance  upon  an  official  brand  to 
which  it  is  not  entitled.  The  officer  generally  is 
a  mere  partizan,  not  selected  with  exclusive  re- 
ference to  his  qualifications,  but  for  his  political 
services.  Carelessness,  ignorance,  avarice,  fre- 
quently lead  to  bad  inspection,  for  which  there  is 
no  remedy.  He  was,  therefore,  opposed  to  the 
whole  system  from  principle.  He  knew,  howev- 
er, that  it  was  due  to  the  subject,  especially  when 
it  is  proposed  to  adopt  a  constitutional  provision 
in  regard  to  it,  to  look  at  the  origin  and  effects  of 
the  system  as  it  has  existed,  and  this  he  would 
do  very  briefly.  Laws  for  the  purposes  of  inspec- 
tion were  passed  as  early  as  1784.  In  one,  enac- 
ted in  1790,  the  object  is  in  a  preamble  declared 
to  be  "  to  render  the  commodities  more  valuable 
in  foreign  markets."  Under  such  a  pretext  has 
grown  up  the  gigantic  system  which  has  estab- 
lished several  hundred  of  the  officers  in  question, 
whose  support  as  he  would  show,  was  a  tax 
upon  the  industrial  classes  of  the  state,  without 
effecting  the  object  originally  designed.  If  the 
object  of  those  laws  had  not  been  accomplish- 
ed, all  candid  men  would  agree  that  they 
should  be  abolished.  He  would  state  a  fact 
which  had  been  communicated  to  him  by  a 
respectable  constituent  of  his  own,  showing  that 
the  price  was  not  raised  in  the  foreign  mar- 
ket by  our  inspection.  The  standard  of  pot- 
ash inspected  in  New  York  was  ten  per  cent 
inferior  to  that  of  Montreal.  Why  this  was  so 
was  perhaps  immaterial  to  inquire.  All  we  wan- 
ted for  the  purpose  of  this  enquiry  was  to  know 
if  the  fact  were  so.  That  it  was  so,  he  repeated 
he  had  good  authority  for  saying;  and  with 
that  one  fact  the  whole  reason  for  the  laws  as  sta- 
ted in  the  act  of  1790  failed,  He  found  another 
stated  in  a  memorial  to  the  legislature  by  the 
New  York  Chamber  of  Commerce  in  1841,  equal- 
ly conclusive,  arid  that  was,  that  in  many  cases 
the  New  York  flour  brand  is  of  positive  injury  to 
the  article  in  Brazil,  because  the  James  river  flour 
was  more  highly  esteemed  in  that  market.  Now 
if  our  inspection  served  to  mark  the  inferiority  of 
our  commodities,  to  those  of  other  states,  it  was 
not  likely  that  their  value  would  be  enhanced  by 
it.  To  his  mind,  the  system  had  utterly  failed  to 
accomplish  its  object.  Its  practical  operation, 
therefore,  was  merely  to  tax  the  industry  of  the 
state,  build  up  valuable  offices  and  to  restrict  com- 
merce, as  he  would  proceed  to  show.  In  general, 
taxes  were  said  to  fall  upon  the  consumer;  but  in 
this  case,  the  expense  of  inspection,  operating  as 
a  tax,  fell  upon  the  producer.  The  article  is  taken 
to  a  foreign  market  to  compete  with  the  same 
kind  of  commodity  from  other  parts  of  the  world, 


511 


or  perhaps  with  the  home  production  which  is 
not  inspected.  The  New  York  producer,  there- 
fore, must  enter  into  competition  with  the  other 
producers,  and  every  charge  at  home  operates  to 
reduce  his  profits  abroad.  The  inspection  in  New 
York,  as  well  as  the  transportation,  is  a  charge  to 
get  his  produce  to  the  foreign  market,  while  he 
obtains  no  higher  price  in  consequence  of  it, 
but  oftentimes  his  produce  is  even  depreciated 
by  the  brand.  The  amount  of  this  inspection 
tax  was  enormous.  He  would  take  the  case 
of  pot  and  pearl  ashes  to  which  he  had  already 
alluded.  He  found  in  the  Legislative  docu- 
ments of  the  last  year  that  the  amount  of  fees 
and  other  expenses  attending  inspection  on  77,- 
107  barrels  of  ashes  inspected  in  New  York  was 
048,955 — equal  to  sixty-three  cents  on  each  bar- 
rel, and  to  two  and  one-half  per  cent  on  the  whole 
value  of  the  article.  Such  a  tax  as  this  was  enor- 
mous, and  it  came  out  of  our  own  citizens  produ- 
cing the  article.  It  was  the  enormity  of  these 
fees  which  called  for  our  interposition.  The  le- 
gislature had  in  vain  attempted  to  correct  the  sys- 
tem. The  year  after  compulsory  inspection, 
weighing  and  measuring,  was  abolished,  a  law 
was  passed  requiring  all  those  who  did  have  their 
commodities  weighed,  inspected,  or  measured,  to 
employ  official  weighers,  measurers  and  inspec- 
tors. The  consequence  was  that  the  evils  of  the 
system  remained  in  as  full  force  as  before.  The 
impracticability  of  accomplishing  the  reform  in 
the  legislature,  presented  the  necessity  for  our 
action.  Weighing,  measuring  and  inspecting 
could  be  done  better  by  private  persons  than  by 
public  officers.  Industry,  character  and  ability 
would  soon  render  private  inspection  more  desi- 
rable. Monopoly  and  extortion  would  be  pre- 
vented. Men  free  to  go  where  they  would  be 
best  and  cheapest  served,  would  obtain  all  the 
advantages  of  superior  inspection  at  a  less  price  ; 
and  the  honest  man  would  not  be  compelled  to 
see  his  labor  depreciated  by  official  ignorance  or 
carelessness.  The  effects  of  our  inspection  laws 
have  been  equally  injurious  to  our  commerce. — 
They  have  prevented  New-York  shippers  from 
being  the  carriers  of  much  western  and  southern 
produce.  No  commodity  could  be  sent  to  New- 
York  for  exportation  without  being  subjected  to 
the  expenses  of  inspection.  The  consequence 
has  been,  especially  under  the  discriminating  du- 
ties in  favor  of  American  productions  from  the 
British  colonies,  that  large  portions  at  one  time 
went  to  the  Canadas  in  order  that  the  expense 
might  be  avoided  ;  and  in  the  ose  of  Richmond 
flour,  before  alluded  to,  much  exportation  from 
the  city  of  New- York  has  been  prevented  in  conse- 
quence of  the  inferiority*  of  our  brand.  Thus  our 
commerce  has  been  shackled,  and  the  just  advan- 
tages of  our  great  seaport  lost.  He  would  detain 
the  committee  no  longer  on  this  question ;  but 
would  observe  in  conclusion  that  the  adoption  of 
the  provision  under  consideration  in  the  Consti- 
tution, would  abolish  a  great  number  of  officers 
not  only  useless,  but  positively  injurious  to  the 
community.  We  would  get  rid  of  a  vast  amount  of 
troublesome  executive  patronage.  We  would  do 
a  lasting  service  to  the  people  in  leaving  them  to 
the  management  of  their  business  transaction  un- 
burthened  by  official  interference,  alike  offensive, 
unnecessary  and  unjust. 


Mr. PERKINS  hoped  that  the  amendment  of  Mr. 
MURPHY  would  prevail.  He  did  not  want  all 
these  weighers,  gaugers,  measurers,  &c.  &c.  re- 
tained ;  they  were  excessively  troublesome  to  the 
Executive,  and  he  believed  all  who  ever  filled  that 
office  would  be  glad  to  get  rid  of  them.  They 
formed  sources  of  political  combinations  in  New 
York  and  made  a  great  deal  of  difficulty  there ; 
especially  in  electing  members  to  the  Assembly, 
&c.;  all  this  had  operated  very  injuriously  to  the 
interests  of  the  city  and  county  of  New-York,  and 
resulted  in  a  heavy  tax  upon  the  people  and  busi- 
ness of  the  State.  The  committee  would  have 
reported  to  do  away  with  them;  but  the  extent  of 
them  had  not  before  been  brought  properly  to  the 
notice  of  the  committee. 

Mr.  PATTERSON  said  that  he  should  go  for 
the  substitute  because  it  went  much  farther  than 
the  original  section ;  it  included  weighers  and 
measurers  with  inspectors.  Now  he  (Mr.  P.) 
knew  this  whole  system  of  weighing,  measuring, 
and  inspecting  to  be  a  gross  fraud  upon  the  peo- 
ple. It  filled  the  pockets  of  a  few  but  produced 
no  real  benefit  to  any  trade.  The  fees  of  the  flour 
inspector  in  New  York  were  over  $15,000  a  year ; 
the  fees  were  reduced  from  Ik  to  1  cent  per  bar- 
rel, but  the  increase  of  trade  had  still  increased 
the  fees.  Now  in  purchasing  flour  it  is  not  done 
in  relation  to  the  inspector's  brand,  but  on  ac- 
count of  the  character  of  the  merchant.  They 
asked  for  Beach's  flour,  or  for  KempshelPs  flour, 
or  any  of  the  other  brands  that  are  considered 
good  in  the  market.  He  hoped  the  amendment 
would  be  adopted. 

Mr.  HARRISON  said  that  in  many  instances 
the  system  of  inspection  had  operated  very  bene- 
ficially to  purchasers.  They  had  often  been  pro- 
tected from  fraud  by  these  inspectors ;  frauds  in 
the  purchase  of  flour,  of  lumber  and  of  various 
other  articles,  fish  in  particular ;  in  this  it  was  ne- 
cessary to  trust  to  the  inspector's  brand,  and  he 
fully  believed  that  if  the  system  of  inspection  was 
to  be  as  rigidly  enforced  as  it  used  to  be  in  former 
times  that  our  exports  would  stand  much  higher 
than  they  now  do  in  the  foreign  market.  The 
evil  was  not  in  the  system  itself  but  in  the  extra- 
vagant fees  given  to  the  inspectors  ;  this  might  be 
remedied  but  he  hoped  the  system  would  not  now 
be  entirely  swept  away.  He  should  oppose  the 
amendment. 

Mr.  RHOADES  suggested  that  the  amendment 
would  exclude  a  certain  class  of  officers  appoint- 
ed by  the  Canal  Board,  such  as  weighers,  inspec- 
tors of  boats,  &,c. 

Mr.  MURPHY  said  that  he  had  added  to  the 
last  part  of  the  section,  a  provision  limiting  in  the 
legislature  control  over  the  salt,  manufactured  by 
the  State.  He  did  it  because  he  observed  in  the 
original  section  an  exception  in  favor  of  salt,  al- 
though he  did  not  wish  to  see  any  exception. 

Mr.  MURPHY  said  he  quoted  these  returns  to 
ahow  what  the  tax  on  the  producer  was.  To  him 
it  was  of  no  consequence  whether  these  exactions 
went  into  the  pockets  of  the  inspectors  only,  or 
whether  they  were  divided  with  thecartman,  the 
cooper,  &c.  &c. 

Mr.  KENNEDY  supposed  it  would  be  useless 
to  detain  the  Convention  upon  this  subject,  as 
they  now  seemed  to  have  decided  upon  adopting 
this  section.  Indeed,  from  all  he  had  seen  in  the 


512 


action  of  this  Convention,  he  was  led  to  the  con- 
clusion that  it  was  called  for  the  purpose  of,  in 
every  possible  way,  preventing  the  city  of  New- 
York  from  enjoying  any  benefit  from  legislation, 
and  of  crippling  its  prosperity;  and  he  might  as 
well  sit  still  and  allow  this  section  to  pass  with- 
out saying  a  word.  But  he  felt  called  upon  to 
oppose  its  adoption.  He  was  opposed  to  compul- 
sory inspection  laws.  Those  features  had  been 
allowed  to  go  out  of  use,  and  no  person  was  now 
obliged  to  have  an  article  inspected  unless  he  de- 
sired it.  The  inspection  was  no  injury  to  the 
manufacturer,  if  he  was  honest,  and  if  he  was  not 
it  would  not  injure  the  buyer  to  know  it.  Mr.  K. 
then  referred  to  the  condition  of  potash  as  he  saw 
it  in  the  warehouse  of  the  inspector  in  New- York. 
Barrels  which  had  been  broken  open  were  found 
to  contain  masses  of  stone,  which  had  been  con- 
cealed in  the  ashes  when  in  a  molten  state.  If 
this  article  was  sent  to  a  foreign  market  in  such  a 
condition,  the  impurity  reflects  not  upon  the  cha- 
racter of  the  manufacturer,  but  upon  the  market 
from  which  it  was  shipped.  It  was  therefore  pro- 
per to  protect  the  character  of  our  markets  by  an 
inspection  of  articles  exported.  The  purchaser  was 
interested  in  this,  because  he  would  be  likely  to 
get  a  better  and  purer  article.  He  could  not  in- 
spect it  himself,  because  it  was  not  a  thing  to  be 
handled,  even  if  he  was  acquainted  with  its  qua- 
lities— and  if  we  were  to  have  inspections  at  all, 
the  expense  of  storage,  cooperage,  &c.,  must  ne- 
cesarily  be  considerable — and  of  this  amount  but 
a  small  portion  went  to  the  inspector.  Mr.  K 
also  stated  as  a  fact  that  such  was  now  the  char- 
acter of  the  New- York  brand,  that  flour  had  been 
brought  there  from  other  markets,  to  be  reinspec- 
ted,  and  because  the  New  York  inspection  gave 
to  it  a  higher  character  and  a  better  price. 

Mr.  NICOLL  inquired  of  his  colleagues  if  the 
article  of  largest  export  from  New-York  (cotton) 
was  not  free  from  inspection  ? 

Mr.  KENNEDY  replied  that  cotton  was  an  ar- 
ticle that  all  who  dealt  in  it  were  well  acquainted 
with. 

Mr.  NICOLL  said  it  would  be  so  with  flour  and 
other  articles.  The  great  question  was  whether 
we  could  not  reduce  the  patronage  of  the  govern- 
ment. Here  were  over  500  officers  thus  holding 
power,  and  he  believed  we  could  safely  get  rid  of 
them.  He  should  vote  for  the  amendment. 

Mr.  MANN  said  he  did  not  know  that  any  re- 
marks which  he  might  make  on  this  question 
would  have  any  weight  or  influence  with  the 
members  of  the  house.  He  was  opposed  to  the 
amendment  offered  by  the  gentleman  from  Kings, 
(Mr.  MURPHY)  which  at  one  full  sweep  destroy- 
ed all  inspections — weighers,  guagers,  &c.  Mr. 
M.  would  say  a  few  words.  His  friend  and  col- 
league from  New  York,  on  his  left,  (Mr.  SHEP- 
ARD)  had  spoken  his  (Mr.  M.'s)  sentiments  on 
this  subject,  and  he  fully  coincided  with  that  gen- 
tleman in  every  word  he  had  uttered,  and  he 
would  not  repeat  his  remarks.  But  he  could 
not  agree  or  coincide  with  the  remarks  made 
by  his  colleague  in  front,  of  him,  (Mr.  KEN- 
NEDY.) He  alluded  to  the  first  part  of  them, 
when  he  spoke  of  the  action  of  members  of 
this  Convention  towards  the  city  of  New 
York.  He  imputed  no  such  motives  as  were 
attributed  to  the  members  of  this  house  by  that 


gentleman,  but  on  the  contrary  he  believed  that 
every  member  of  this  convention  had  acted  from 
the  best  motives,  and  their  action,  so  far  as  related 
to  New  York,  had  been  from  honest  convictions ; — 
that  they  were  acting  for  the  best  interests  of  the 
State  at  large,  as  well  as  for  the  city  of  New  York. 
He  did  suppose  that  it  would  be  useless  for  him 
to  talk,  or  of  any  use  for  any  other  member  to 
talk  on  this  side  of  the  question,  or  in  opposition 
to  the  amendment,  as  the  gentleman  from  Kings 
had  stated  that  the  question  was  always  settled  by 
Convention.  It  probably  was ;  and  anything  that 
might  be  said  by  him  or  other  members,  would  be 
of  no  avail.  But  he  (Mr.  M.)  could  not  agree 
with  the  gentleman  from  Kings  in  his  proposi- 
tion. As  he  (Mr.  M.)  understood  the  amend- 
ment, it  swept  every  thing  before  it  in  the  shape 
of  inspection,  weighers,  guagers,  measurers,  &c.; 
even  inspectors  of  weights  and  measures.  What 
would  be  the  result  of  this  proposition  ?  Why, 
that  we  should  probably  have  all  kinds  and  sorts 
of  weights  and  measures,  as  there  could  be  no 
provision  to  regulate  them.  We  should  have 
nine  ounces  for  the  pound,  three  pecks  for  the 
bushel,  three  quarts  for  a  gallon,  and  so  on. — 
And  if  this  amendment  was  adopted,  we  should 
have  a  singular  state  of  things  to  regulate  trade 
and  commerce  in  the  large  cities.  He  was  in  fa- 
vor of  some  kind  of  inspections  and  regulations  for 
weighing,  guaging  and  marking  of  merchandise 
and  produce,  but  he  was  decidedly  in  favor  of 
abolishing  all  of  the  compulsory  features  for  such 
inspections,  weighing,  guaging  and  measuring, 
and  leave  it  entirely  with  the  buyer  and  seller  to 
settle  as  they  found  it  for  their  interest,  whether 
they  would  employ  such  officers  or  not.  Trade 
and  commerce  could  not  well  be  carried  on  in 
large  cities  without  some  regulations  in  these 
matters,  and  inspectors,  weighers,  guagers  and 
measurers  would  be  created  and  employed  in  one 
way  or  another.  He  would  ask  gentlemen  if  they 
supposed  there  would  be  any  less  number  of  these 
in-pectorsor  officials  by  adopting  this  proposition? 
He  thought  not;  for  they  would  be  created  and 
employed  ;  and  how  would  it  be  done  ?  Why,  by 
all  the  large  dealers  in  pot  and  pearl  ashes,  beef, 
pork,  and  all  kinds  of  merchandize  and  produce. 
Every  heavy  dealer  would  appoint  his  own  man 
as  inspector,  weigher,  guager  or  measurer,  as  the 
case  might  be,  and  they  must  be  paid  for  their 
services.  Such  services  would  be  found  requi- 
site and  proper  in  the  transaction  of  mercantile 
business,  and  were  indispensable.  He  (Mr.  M.) 
would  not  detain  the  Convention  longer  with  his 
remarks,  but  should  vote  against  the  proposition 
to  amend. 

Mr.  CHATFIELD  would  not  leave  this  matter 
of  abolishing  the  inspection  laws  to  the  Legisla- 
ture. Here  was  the  place  to  do  it — in  this  Con- 
stitution. These  inspection  laws  operated  as  a 
tax  upon  the  people  of  the  country — it  was  upon 
their  products  that  it  was  levied.  Mr.  C.  referred 
to  the  reports  as  showing  that  $'125,000  was  paid 
in  New- York,  in  one  year,  for  inspections,  and 
this  large  sum,  he  argued,  was  paid  by  the  pro- 
ducers of  the  country.  The  adoption  of  this  sec- 
tion would  relieve  them  from  it.  Another,  and 
au  important  object  he  said  was  to  diminish  the 
Executive  patronage,  to  relieve  the  Executive 
from  the  hordes  of  office-seekers  and  office  abet- 


513 


tors,  who  hang  around  the  Capitol  every  year. — 
He  would  place  a,  merchant  upon  his  business 
integrity  and  responsibility  for  the  sale  of  an  ar- 
ticle, and  it  was  no  man's  interest  to  get  a  bad 
reputation.  It  was  said  that  this  whole  matter 
should  be  left  with  the  Legislature.  He  had  seen 
enough  since  he  had  been  here  to  despair  of  any 
reform  being  effected  there.  Since  this  report 
had  come  in,  inspectors  from  New- York  had  been 
here  besieging  him,  and  he  doubted  not  that  other 
delegates  had  been  in  like  manner  besieged. — 
When  a  Legislature  should  reform  this  inspection, 
then  should  we  find  white  crows  and  the  sky 
would  rain  larks.  He  would  abolish  all  this  in- 
spection and  put  every  man  in  the  community 
upon  his  own  honesty. 

Mr.  WHITE  :  As  one  of  the  delegates  from 
the  city  and  county  of  New- York,  I  desire  to  ten- 
der my  thanks  to  my  honorable  friend  from  Otse- 
go  (Mr.  CHATFIELD)  the  Chairman  of  the  com- 
mittee who  reported  this  secton  for  the  abolition 
of  all  Inspection  Laws,  and  for  the  important  ser- 
vices rendered  to  my  constituents  by  this  measure 
of  sound  policy  and  practical  wisdom ;  I  desire 
also  to  make  my  acknowledgements  to  my  honor 
able  friend  from  Kings,  (Mr.  MURPHY)  for  the 
very  able  support  which  he  has  given  to  the  re 
port  of  the  committee  upon  this  important  sub 
ject  I  profess  myself  wto  be  a  decided  advocate 
of  the  doctrine  which  gives  to  industry,  the  ut- 
most freedom  of  action  and  which  leaves  unre- 
strained, individual  enterprise  and  individual  sa- 
gacity. I  hold  to  the  opinion  that  every 
regulation  of  trade  is  a  restrictien,  and  that 
all  laws  affecting  such  pursuits  are  not  only  un- 
wise, but  in  violation  of  private  rights  and  sub- 
versive of  the  principles  of  Iree  trade.  It  was 
well  and  wisely  remarked  this  morning  by  the 
Hon.  member  from  Herkimer,  that  it  is  neither 
right  or  expedient  "  to  convert  a  trade  into  an 
office" — an  opinion  which  I  would  not  repeat  in 
terms  less  forcible  than  his  own,  and  in  which  I 
entirely  concur.  The  acuteness  of  the  great  bo- 
dy of  the  people  render  them  perfectly  capable 
of  taking  care  of  themselves  in  all  the  transac- 
tions of  life  ;  and  we  have  laws  to  enforce  the  ful- 
filment of  contracts  according  to  their  plain,  ob- 
vious and  honest  import.  That  is  all  the  inter- 
ference of  government  that  is  desired  or  wanted. 
"We  want  no  guardians— legislative  or  political — 
and  all  such  evidences  of  antiquated  ignorance 
should  be  erased  from  the  statute  book.  We 
have  inspectors  of  flour,  tobacco,  ashes,  lumber, 
hides,  leather,  &c.,  amounting  in  number,  with 
he  weighers,  guagers,  measurers,  &c.,  to  380. — 
What  has  been  our  experience  as  to  the  benefit 
derived  from  this  costly  system  ?  I  hold  in  my 
hand  a  document  addressed  to  the  Senate  by  the 
Chamber  cf  Commerce  of  New- York,  against 
these  inspection  laws,  which  demonstrates 
from  actual  knowledge  of  the  fact,  that 
commerce  has  been  shackled  and  fettered; 
and  that  no  advantage  but  positive  injury  has 
been  the  consequence  of  their  enactment. — 
The  inspection  of  flour  is  peculiar  to  this  coun- 
try, and  it  is  entirely  unknown  in  France  and 
England..  But  it  must  be  conceded  that  in  effect 
it  has  ceased  to  give  a  character  to  the  article  in 
their  market.  The  brand  of  New  York  adds 
nothing  to  its  value,  nor  any  facility  to  its  sale. 

39 


Every  person  conversant  with  this  branch  of 
trade,  must  know  that  flour  is  regarded  for  foreign 
markets,  not  according  4°  the  brand  of  the 
inspector,  but  according  to  the  name  and  reputa- 
tion of  the  miller  or  manufacturer  of  the  article. 
That  name  is  the  best  warrantee  that  it  contains 
a  certain  weight  of  flour  of  a  good  quality.  This 
is  found  in  practice,  to  be  effectual.  It  is  his 
interest  therefore,  to  be  honest.  Frauds  were 
formerly  practiced  on  the  great  staple  article  of 
our  country,  cotton;  but  since  the  planter  has  put 
his  name  on  the  bale,  they  are  of  very  rare  occur- 
rence. It  cannot  be  disguised  that'persons  are 
frequently  appointed  to  such  office  from  conside- 
rations solely  of  a  political  character,  and  not  from 
any  aptitude  to  judge  and  determine  the  quality  of 
the  commodity  they  were  selected  to  inspect. — 
These  several  inspection  laws  have,  in  my  hum- 
ble judgment,  failed  to  accomplish  the  purposes 
they  were  intended  to  effect.  And  they  are  a 
heavy  and  onerous  tax  either  on  the  producer  or 
consumer.  In  opposing  the  appointment  of  this 
class  of  State  officers,  I  desire  however  to  be  un- 
derstood as  solicitous  that  everyone  of  our  fellow 
citizens  may  be,  if  he  so  elects,  an  Inspector, 
Guager,  Weigher,  Measurer,  &c.,  and  that  they 
may  follow  any  and  every  employment  which  the 
usage  of  trade  and  of  commercial  men  may  de- 
mand. This  is  their  natural  and  unalienable 
right.  And  I  shall  ever  maintain  the  right  of  the 
people  to  follow  whatever  professional  employ- 
ment or  calling  they  may  please,  unrestricted  by 
the  power  of  the  State.  And  all  that  is  required 
of  the  State  authorities,  is  to  protect  them  by  law 
from  imposition ;  and  to  punish  those  who  prac- 
tice it.  I  shall  therefore  feel  it  to  be  my  duty  to 
vote  for  the  amendment  of  the  honorable  gentle- 
man from  Kings. 

Mr.  SHEPARD  offered  the  following  amend- 
ment :— 

"  No  laws  shall  be  passed  compelling  the  inspection, 
weighing,  or  measuring  of  any  article  of  merchandise, pro- 
duce or  manufacture,  (except  salt  manufactured  within 
this  state)  or  prohibiting  any  person  from  acting  as  in- 
spector,) weigher,  or  measurer  of  any  such  article." 

Mr.  RHOADES  knew  something  about  the 
abolition  of  this  compulsory  feature  of  the  in- 
spection laws.  The  same  arguments  now  urged 
were  those  put  forth  against  that  alteration.  He 
believed  the  present  law  was  in  effect  but  little 
better  than  compulsory,  for  every  man  from  the 
country  going  to  that  city, was  compelled  to  submit 
to  this  inspection.  The  year  after  compulsory  in- 
spection was  abolished,  the  Inspectors  of  beef  and 
pork  in  New  York  did  but  little  business.  Appli- 
cation was  made  next  winter  to  appoint  an  Inspec- 
tor General  and  a  law  was  passed  ior  that  purpose. 
It  was  generally  supposed  then  that  the  only  ob- 
ject for  obtaining  this  office,  was  that  he  might 
^ive  employment  to  some  dozen  or  more  of  In- 
spectors, who  could  not  get  a  living  in  any  other 
way — and  the  result  was  that  inspection  was  now 
compulsory.  Mr.  R.  knew  something  about  the  in- 
spection of  salt.  It  had  never  been  of  the  least 
use.  More  than  twenty  years  ago  the  inspectors 
were  indicted  for  passing  bad  salt  as  good.  The 
only  guard  the  public  had  was  in  the  character 
and  standing  of  the  manufacturer.  Mr.  R.  said 
he  had  been  told  by  the  late  Attorney  General  a 
fact  which  went  far  to  elucidate  the  operation  of 


514 


the  inspection  laws  in  New  York.  It  appeared 
in  a  suit  that  by  an  arrangement  between  an  in- 
spector of  lumber  andfthe  purchaser,  that  lum- 
ber at  first  marked  "  second  rate,"  was  afterwards 
reinspected  as  "  first  rate,"  thus  making  a  change 
in  one  operation  of  some  $8,000.  He  had  not  sup- 
posed that  a  single  member  ol  this  Convention 
would  have  voted  to  retain  these  useless  provis- 
ions. He  should  vote  for  the  entire  abolition  of 
all  inspection  laws. 

Mr.  O  CONOR  wished  his  colleague  (Mr.  SHEP- 
ARD)  would  withdraw  his  amendment, as  it  seem- 
ed to  him  that  the  sense  of  (he  Convention  had 
befter  be  taken  on  the  amendment  of  the  gentle- 
man from  Kings.  There  was  very  little  objec- 
tion, in  his  view  of  the  matter,  to  the  amendment 
proposed  by  his  colleague.  The  object  of  it,  as 
he  supposed,  was  to  divest  the  inspection  laws  ot 
their  compulsory  character,  so  that  a  man  shall  be 
perfectly  free  to  have  his  merchandize  inspected 
or  not,  as  he  should  see  fit.  It  would  undoubtedly 
accomplish  that  object,  and  would  render  the  in- 
spection laws  a  perfect  nullity.  Therefore,  altho' 
he  preferred  the  amendment  of  his  friend  from 
Kin^s,  he  should  feel  constrained  to  vote  also  for 
the  amendment  of  his  colleague,  if  it  \vas  per- 
sisted in.  He  was  sure  that  if  the  merchants  ol 
New  York  were  released  from  the  tetters  of  the 
law  to  the  extent  which  this  amendment  proposed, 
that  they  would  immediately  proceed — in  some 
departments  of  inspection,  at  all  events— to  em- 
ploy the  old  inspectors— persons  not  now  in  office 

because  ihe  change  ot  political  parties  had 

lead  to  their  removal,  but  who  had  by  reason  of 
their  integrity  and  otherwise,  acquired  for  their 
names  and  brands,  while  in  office,  a  high  repu- 
tation in  certain  quarters.  The  inspection  laws 
now  were  compulsory  to  a  certain  extent.  The 
laws  of  trade  have  established  the  necessity  for 
some  inspections,  and  the  laws  of  the  land  forbid 
those  goods  to  be  inspected  by  any  other  person 
than  a  legally  appointed  inspector.  If  this  was 
to  be  abolished,  very  well,  and  it  would  be  best  to 
do  it  under  the  amendment  of  the  gentleman  from 
Kings. 

Mr.  SHEPARD  had  three  objects  in  view — 
First,  to  divest  the  Inspection  laws  of  any  com- 
pulsory features,  and  in  the  second  place,  if  it 
should  be  found  that  inspection  laws  were  calcu- 
lated to  promote  trade,  that  the  legislature  might 
pass  such  laws  without  the  compulsory  features; 
and  in  the  third  place,  he  was  averse  to  fixin?  in 
the  Constitution  any  rule  forbidding  the  passage 
of  laws  on  the  subject  at  all. 

Mr.  TALLMADGE  conceived  that  this  subject 
had  no  business  here,  and  he  should  vote  against 
all  the  propositions  which  might  be  made  in  re- 
lation to  the  paltry  inspection  laws. 

Mr.  TILDEN  should  vote  for  the  amendment, 
for  the  reason  assigned  by  his  colleague.  (Mr. 
O'CoNOR)  as  to  its  nature.  By  the  act  of  1843, 
the  compulsory  character  of  the  system  was  abol- 
ished ;  but,  in  1844,  an  act  was  passed— explana- 
tory or  amendatory  of  the  former  one— by  which 
no  person  except  an  officer  appointed  by  the  Go- 
vernor and  Senate,  was  allowed  to  follow  the  bu- 
siness of  inspection,  &c.  so  that  in  practice  the  pre- 
sent system  had  not  been  voluntary.  If  this  amend- 
ment were  adopted,  and  a  provision"  were  added 
abolishing  the  laws— which  he  should  move  to 


do — it  would  accomplish  every  thing  valuable 
and  desirable  in  the  proposition  of  the  gentleman 
from  Kings,  while  it  would  avoid  the  objection  to 
the  loose  and  dangerous  phraseology  of  that  pro- 
position avowed  by  many  of  its  friends,  and  in- 
tended to  be  corrected  hereafter.  It  would  effectu- 
ally restrain  the  legislature  from  any  violation  of 
freedom  of  trade  hereafter,  while  it  left  that  pow- 
er of  general  legislation  and  of  the  conduct  of 
strictly  state  business,  which  the  other  proposi- 
tion intended  to  leave. 

Mr.  TOWNSEND  expressed  himself  to  the 
same  effect. 

The  amendment  of  Mr.  SHEPARD  was  reject- 
ed, as  follows : — 

AYES— Messrs.  Bouck,  Cornell,  Jones,  Kennedy,  Mann, 
SheparJ,  Smith,  Stephens.  J.J.  Taylor,  Tilden,  Townsend, 
Wood-12. 

NOES— Messrs.  Angel,  Archer,  Ayrault,  F.  F.  Backus, 
H,  Backus,  Baker,  Bascom,  Bowdish,  Bray  ton,Bruce.  Burr, 
Cambreleng,  D.  D.  Campbell,  R.  Campbell  jr.,  Chattield, 
Clark,  Cook.  Cuddeback,  Dana,  Danforth,  Dodd,  Dorlon, 
Flanders,  Forsyth,  Gebhard,  Harris,  Harrison,  Hotchkiss, 
Hunter,  A.  Huntington,  E.  Huntington,  Hyde,  Jordan, 
Kemble,  Kernan,  Kingsley,  Kirkland,  McNeil,  McNitt, 
Marvin,  Maxwell,  Miller,  Morris,  Murphy,  Nellis,  Nicho- 
las, Nicoll,  Parish.  Patterson,  Perkins  Potter,  President, 
Rhoades,  Richmond,  Riker,  St.  John,  Salisbury,  Sears, 
Shaver,  Shaw,  Stanton,  Stetson,  Stow,  Strong,  1  aft.  Tag- 
gart,  Tallmadge.  Tutbill,  Vache,  Waterbury,  White,  Wil- 
lard,  Witbeck,  Worden,  Young,  Youngs— 76. 

Mr.  RHOADES  moved  to  add  to  the  amend- 
ment of  Mr.  MURPHY  the  words  "and  over  the 
canals  and  other  public  works  of  the  State,"  to 
come  in  after  the  word  "salt." 

Mr.  PATTERSON  moved  to  strike  out  all 
that  related  to  the  inspection  of  salt. 

The  debate  was  briefly  continued  by  Messrs. 
PATTERSON  and  RHOADES,  when  the  amend- 
ment of  the  latter  was  rejected. 

Mr.  WORDEN  moved  to  modify  the  amend- 
ment of  Mr.  MURPHY,  so  that  it  should  provide 
that  the  legislature  should  have  control  over  the 
manufacture  and  inspection  of  salt. 

Mr.  MURPHY  assented. 

The  motion  of  Mr.  PATTERSON  to  strike 
out  was  negatived. 

Mr.  STOW  dared  not  vote  for  this  amendment 
because  he  feared  the  effect  of  the  phraseology. — 
We  had  the  office  of  weigher  of  boats  on  the  canal, 
which  might  be  abolished  by  this  section.  The 
same  might  be  said  of  the  office  of  inspector  of 
boats. 

Mr.  ST.  JOHN  moved  the  previous  question, 
but  it  was  not  seconded. 

Mr.  MURPHY  modified  his  amendment  so  as 
to  add  the  words,  "  or  shall  interfere  with  the 
collection  of  the  canal  tolls  of  the  State." 

His  substitute  for  the  whole  section  was  then 
adopted,  as  follows : 

AYES— Messrs.  Angel,  Archer.  Ayrault,  F.  F.  Backus, 
H.  Backus,  Baker,  Bascom,  Bowdish,  Bray  ton,  Bruce, 
Burr,  Cambreleng,  D.  D-  Campbell,  Chatfield,  Clark.Cone- 
ly,  Cuddeback,  Dana,  Danforth,  Dodd,  Dorlon,  Flanders, 
Forsyth,  Gebhard,  Harris,  Hotchkiss,  Hunter,  A.  Hunting, 
ton,  E.  Huntington,  Hyde,  Jordan,  Kingsley,  Kirkland, 
Loomis,  McNeil,  McNitt,  Marvin,  Maxwell,  Miller,  Morris, 
Murphy,  Nelhs,  Nicholas,  O'Conor,  Parish, Patterson,  Por- 
ter, President,  Rhoades,  Richmond,  Riker,  St.  John,  Salis- 
bury Sears,  Shaver,  Shaw,  Stanton, Stetson,  Stow,  Strong, 
Taf't,  Taggart,  J.  J.  Taylor,  Townsend,  Tutbill,  Vache, 
Waterbury,  White,  Witbeck,  Worden, Young.Youngs— 73. 
NOES— Messrs.  Bouck, Cornell,  Harrison,  Jones.  Mann, 
Shepard,  Smith,  Tallmadge,  Tilden,  Willard,  Wood— 11. 

The  section  thus  agreed  to  is  as  follows : 


515 


All  officers  for  the  weighing,  guaging,  measuring,  cull- 
ing, or  inspecting  any  merchandize,  produce,  manufacture, 
or  commodity  whatever,  are  hereby  abolished;  and  no 
such  office  shall  hereby  be  created  by  law:  but  nothing 
heroin  contained  shall  prevent  the  legislature  from  exer- 
such  control  over  the  inspection  or  mamifactuie  of 
the  salt  made  from  the  springs  belonging  to  the  State,  as  it 
may  deem  proper;  or  shall  interfere  with  the  collection  of 
the  tolls  and  revenues  of  the  State. 

Mr.  STOW  moved  a  reconsideration.     Lost. 

Mr.  WHITE  moved  that  during  the  rest  of  this 
month,  the  Convention  hold  but  one  session  a  day, 
from  eight  until  two. 

Mr.  MORRIS  moved  to  lay  the  resolution  on 
the  table.  Agreed  to. 

The  Convention  then  adjourned  to  nine  o'clock 
to-morrow  morning. 

WEDNESDAY  (54th  day,)  August  5. 
Prayer  by  Rev.  Mr.  MEYER. 
Mr.  BOUCK    presented  the   petition  of  certain 
persons  in  Oneida  county,  in  relation  to  the  elec- 
tive franchise;  and   also  in  relation  to  the   con- 
struction (if  the  two  Houses  ol  the  Legislature.    It 
was  referred  to  the  committee  of  the  whole  hav- 
ing  chc'.tge  of  the   report  of  committee  No.  4,  of 
which  Mr.  BOUCK.  is  chairman. 

Mr.  C.  P.  WHITE  then  said  he  would  call  up 
his  resolution,  which  was  l.ml  on  the  table  yes- 
terday; providing  that  (he  Convention  should 
hereafter  meet  at  8  in  the  morning  and  adjourn  at 
2  P.  M  ,  and  have  no  afternoon  or  evening  session 
during  this  exceedingly  hot  and  oppressive  wea- 
ther. 

Mr.  F.  F.  BACKUS  hoped  the  resolution  would 
not  pass.  He  thought  that  we  generally  did 
more  business  iii  the  afternoon  two  hours  than  we 
did  in  the  morning  sessions.  The  speeches  were 
much  shorter,  a-id  more  voting  was  done.  Now, 
if  this  was  produced  hy  the  heat  of  the  weather, 
he  sincerely  hoped  that  it  might  be  hotter  still. 

Mr.  TALLMADGE  said  that  he  thought  9 
o'clock  was  early  enough;  but  if  gentlemen  de- 
sired to  avoid  having  these  sessions  in  the  heat 
and  burthen  of  the  day,  he  would  have  no  objec- 
tion to  move  to  amend  so  as  to  have  a  recess  in 
the  afternoon  until  7  o'clock. 

Mr.  TALLMADGE's  motion  to  meet  at  7  at 
night  was  lost. 

Mr.  WHITE'S  motion  to  meet  at  8  in  the 
tnoruing  was  lost.  Ayes  37,  noes  50. 

STATE  OFFICERS. 

The  Convention  then  went  into  committee  of 
the  whole  on  the  report  of  committee  No.  6. 
Mr.  JORDAN  resumed  the  Chair. 
Mr  MURPHY,  by  consent,  sent  up  a  substi- 
tute for  the  one  offered  by  him  yesterday,  and 
which  was  at  that  tune  adopted.  It  was  thus: — 
All  officers  for  the  weighing,  guaging,  measuring,  cull- 
ing or  inspecting  any  merchandise,  produce,  manufacture 
or  comtnO'lity  whatever,  are  hereby  abolished,  and  no  such 
office  shall  hereafter  be  created  by  law;  but  nothing  in  this 
section  contained  shall  abrogate  any  office  created  for  the 
purpose  of  protecting  th?  interests  of  the  State  in  its  pro 
l>erty,  revenue,  tolls  or  purchases,  or  of  supplying  the 
people  with  correct  standards  ot  weights  and  measures 
or  ihall  prevent  the  creation  of  any  office  for  such  pur 
poses  hereafter. 

There  being  no  opposition,  the  substitute  was 
entertained  instead  of  the  section  adopted  yestei 
day 

The  question  was  then  upon  adopting  the  sec 
tion  as  amended. 


Mr.   TALLMADGE    again    repeated    that   he 

hould  vote   against   this    proposition    in  any  and 

every  form.     As  to  putting  down  excitement  and 

ntrigues  at  elections,  by  abolishing  inspectors,  it 

vas  all  idle.     Do  what  you  would,  the  Lazzaroni 

f  New  York  will    always  turn  up  the  other  end 

first,  and  kick  up  some  confusion. 

Mr.  PATTERSON  said,  that  as  a  general  thing 
ic  was  opposed  to  putting  any  thing  into  the, 
Constitution  that  was  more  properly  matter  of 
egislation.  But  he  had  seen  enough  of  legisla- 
ion  on  this  subject.  In  1843  a  law  was  passed 
abolishing  compulsory  inspections.  And  yet  a 
lorde  of  these  officers  came  here  besieging  the 
legislature  in  '44  until  they  got  a  law  passed  for- 
bidding any  man  to  discharge  the  duties  of  in- 
spector except  one  who  had  been  regularly  ap- 
pointed. Since  this  Convention  met,  some  of  these 
•fficers  had  been  here  opposing  the  adoption  of 
his  section. 

Mr.  TALLMADGE  said  if  the  lobby  had  be- 
come so  powerful  that  they  controlled  all  three 
branches  of  the  legislature,  it  would  be  idle  for 
us  to  attempt  to  nail  down  what  all  three  of  these 
could  not  keep  still.  His  word  for  it,  there  would 
>e  a  re-action  on  this  subject,  and  the  Lazzaroni 
n  New- York  would  come  up  at  the  other  end  of 
he  heap. 

Mr.  MANN  inquired  of  Mr.  PATTERSON,  if 
any  of  these  officers  had  besieged  him  ?  If  so,  he 
lad  been  more  unfortunate  than  the  New  York 
Delegation. 

Mr.  PATTERSON  replied  that  he  had  not 
>een  spoken  to  by  any  of  them,  nor  had  he  ever 
>een  approached  when  he  was  a  member  of  the 
egislature. 

Mr.  SHEPARD  said  he  was  acquainted  with 
most  of  the  inspectors  from  New- York,  and  he 
lad  not  seen  one  of  them  in  this  capitol.  He 
said  the  mind  of  that  man  was  not  rightly  con- 
stituted who  could  not  tolerate  honest  differences 
of  opinion ;  and  the  man  who  saw  a  rogue  in  ev- 
ery one,  who  was  not  of  his  party,  was  likely  to 
>e  a  good  deal  of  a  rogue  himself. 

Mr.  O'CONOR  was  sorry  to  hear  these  imputa- 
tions upon  his  city  and  the  delegation.  They 
were  all  unfounded.  He  had  seen  no  inspectors 
icre. 

Mr.  PATTERSON  said  if  he  had  been  under- 
stood as  making  any  charge  against  the  inhabit- 
ants of  the  city  of  New-York,  as  such,  or  its  rep- 
resentatives, in  reference  to  their  action  upon  this 
question,  he  had  been  misunderstood.  He  did 
not  wish  to  impute  any  thing  improper  against 
those  who  voted  upon  this  question  contrary  to 
himself.  Nor  should  the  gentleman  from  New 
York  (Mr.  SHEPARD)  who  had  read  him  a  lecture 
here  this  morning,  impugn  his  (Mr.  P.'s)  motives 
with  impunity.  He  did  not  wish  to  apply  any 
rule  to  the  city  of  New-York  which  he  was  not 
willing  to  have  applied  to  the  country — he  had 
no  ill-will  toward  that  city— he  admired  both  it 
and  its  representatives.  But  these  inspectorships 
which  existed  as  well  in  the  country  as  in  the 
city,  were  not  needed  in  either — the  inspectors  of 
lumber,  leather,  &c.,  were  entirely  unnecessary, 
and  he  should  vote  for  the  proposition  to  do  away 
with  them.  In  regard  to  the  other  matter,  he 
had  heard  an  honorable  member  state  that  there 
were  eight  inspectors  in  this  chamber  yesterday. 


516 


He  was  not  certain  that  he  said  they  were  from 
the  city  of  N, York,  and  in  this  he  might  have  been 
in  error.  But  that  there  were  inspectors  here  he 
believed  could  not  be  contradicted. 

Mr.  SHEPARD,  after  the  explanation  of  the 
gentleman,  withdrew  all  imputations  on  his  part. 
But  he  would  take  this  occasion  to  say  that  while 
he  should  never  seek  collision  by  unjust  impu- 
tation on  any  one,  gentlemen  might  rest  as- 
sured that  when  it  did  come,  he  should  never 
shun  it.  He  was  the  last  to  assign  motives — to 
any  gentleman — he  was  the  first  to  repel  any  as- 
persions cast  on  his  delegation  or  his  city — the 
last  to  shun  responsibility  of  any  honorable  kind 
— the  first  to  assume  it  in  a  just  cause. 

Mr.  RHOADES  said  that  in  former  times  it 


was   necessary  to  have  these 
order  to  prevent  frauds. 


inspection  laws  in 


Mr.  TALLMADGE  said  it  was  not  his  purpose 
to  say  anything  wrong  ;  yet  in  allusion  to  the 
feeling  that  had  been  exhibited  here  in  the  Con- 
vention this  morning,  in  relation  to  the  inspec- 
tors of  New  York,  and  their  alleged  interference 
in  election  matters  or  coming  up  to  the  Legisla- 
ture to  interfere,  or  to  this  Convention,  he  would 
remind  the  gentlemen  of  the  Convention,  and 
particularly  of  the  farmers  present,  to  the  well 
known  fact  that  a  certain  bird  by  fluttering  as 
though  its  wing  was  broken,  and  by  cries  of  dis- 
tress, allured  men  from  its  riest.  It  might  be  so 
here.  He  begged,  however,  not  to  be  involved 
in  this  argument,  either  right  or  wrong.  But  it 
is  not  a  little  curious  that  this  Convention  cannot 
let  well  enough  stay  well  let  alone.  He  begged 
to  record  himself  always  in  the  negative,  on  all 
these  matters. 

Mr.  STRONG  said  that  the  gentleman  from 
Dutchess  seemed  to  object  to  all  this  because  it 
was  not  to  be  found  in  the  old  Constitution. — 
Some  gentlemen  seemed  particularly  to  love  ev- 
ery thing  that  was  old.  He  was  not  wedded  to 
every  thing  that  was  old,  but  to  every  thing  that 
was  right  and  just,  whether  it  was  old  or  whe- 
ther it  was  new.  He  remembered  some  of  the 
scenes  that  were  connected  with  many  of  the  al- 
lusions that  had  been  made  to  these  inspection 
laws,  and  to  their  abolition,  and  to  the  difficul- 
ties between  the  various  candidates  for  inspect- 
ors, and  to  the  divisions  of  the  various  offices,  and 
to  the  influences  which  each  could  bring  to  bear 
on  the  elections  at  home,  and  on  the  legislatures 
here  ;  and  the  result  was  that  at  last  we  had  a 
fist  fight  upon  this  very  floor,  in  1843,  between 
two  of  the  members  from  New- York.  [Laugh- 
ter.] 

Mr.  RHOADES  hoped  that  much  of  what  had 
been  proposed  here  would  not  prevail  in  relation 
to  restrictions,  &c.  upon  all  the  pursuits  of  life. 
Why  if  the  amendments  proposed  for  instance  by 
the  gentleman  from  Dutchess  (Mr.  TALLMADGE) 
should  prevail,  the  boys  at  school  could  not  even 
play  at  pin  lotteries,  without  being  liable  to  be 


fined. 

Mr.  TALLMADGE 


said  that  lotteries  were 


questions  connected  with   moral   rectitude,   and 
not  of  commercial  regulations, 

Mr.  LOOMIS  said  that  although  he  should  vote 
against  this  motion,  yet  he  did  not  wish  them  to 
consider  this  as  indicating  his  opinions  upon  this 
subject  at  all ;  for  he  was  opposed  to  putting  any 


of  these  matters  into  the  Constitution.  As  a  leg- 
islator he  would  vote  for  the  section,  but  he  re- 
fused to  make  it  a  Constitutional  provision. 

Mr.  BASCOM  did  not  want  to  lumber  up  the 
Constitution  with  any  unnecessary  provisions, 
which  of  right  did  not  belong  to  it ;  but  still  he 
wanted  gentleman  to  come  out  and  look  at  this 
point ;  we  have  here  to  say  what  officers  shall, 
or  shall  not  be  created  or  suffered  to  stand ;  and 
how  each  office  is  to  be  filled; 

Mr.  JONES  said  the  gentleman  from  Herki- 
mer  (Mr,  LOOMIS)  had  anticipated  him  in  almost 
all  he  had  intended  to  say.  Inspection  laws  had 
been  in  existence  in  this  State  for  more  than  60 
years,  and  a  diversity  of  opinion  existed  among 
dealers  in  articles  subject  to  inspection,  whether 
these  laws  could  with  propriety  be  abrogated. — 
His  own  opinions,  founded  however  upon  little  or 
no  practical  knowledge  upon  the  subject,  were 
not  very  favorable  to  the  continuance  of  inspec- 
tion laws  ;  and  were  he  a  member  of  the  legisla- 
ture, and  were  this  question  pending  there,  he 
would  cheerfully  vote  for  a  proposition  similar  to 
this,  inasmuch  as  he  should  be  perfectly  willing 
to  have  the  experiment  tested,  whether  we  could 
well  and  safely  get  on  without  any  of  these  lawsr 
and  tested  too  in  a  way  that  would  put  it  in  the 
power  of  a  subsequent  legislature  to  rectify  the 
error,  if  the  experiment  should  prove  to  be  im- 
practicable, or  in  any  important  respect,  detri- 
mental to  the  interests  of  trade.  He  was  not, 
however,  so  perfectly  confident  of  the  soundness 
of  his  views  upon  this  question,  as  to  justify  him 
in  voting  to  engraft  the  principle  into  our  organic 
law.  It  was  not  easy  to  change  our  constitution, 
and  a  subject  like  this,  relating  to  the  trade  and 
business  of  the  community,  involving  questions 
of  disputed  propriety  and  practicability,  should 
not  be  placed  beyond  the  reach  of  a  reasonably 
prompt  and  proper  corrective.  For  these  reasons 
therefore,  and  disclaiming  with  the  gentleman 
from  Herkimer,  to  have  his  vote  at  all  involve 
the  policy  of  inspection  laws,  Mr.  JONES  conclu- 
ded by  saying  that  he  should  vote  against  the  pro- 
position now  pending. 

Mr.  CAMBRELENG  regretted  to  hear  the  ex- 
pression of  opinion  against  inspection  laws  ;  and 
yet  gentlemen  avowed  that  they  should  vote 
against  the  provision,  on  the  ground  that  it  was 
the  subj«ct  of  legislation.  What  were  they  here 
for,  but  to  reform  the  constitution  ?  What  was 
it  but  to  dispense  with  every  useless  office  ?  And 
what  were  they  here  told  respecting  these  of- 
ficers ?  Why  that  they  were  not  only  useless,  but 
mischievous  and  oppressive.  What  were  the 
questions  here  involved  ?  It  was  whether  the  go- 
vernment is  better  able  to  ascertain  the  quality  of 
an  article,  or  the  trade.  Whether  the  government 
is  better  qualified  to  judge  of  hops  and  potash, 
than  those  whose  business  it  is.  He  hoped  all 
this  Executive  patronage  would  be  abolished. — 
Take  the  article  of  cotton,  and  how  was  that  dis- 
posed of?  By  Brokers.  Their  lives  were  devoted 
to  that  branch  of  business,  and  their  experience 
was  worth  more  than  aH  these  inspection  laws. 
Who  were  these  tobacco  inspectors?  Were  they 
tobacconists  ?  No—  no  more  than  he  was  who 
never  used  the  article.  They  were  politicians 
who  were  put  into  the  office,  and  he  wished  to  see 
such  offices  abolished  and  that  patronage  taken 


517 


from  the  Executive.  Gentlemen  then  who  de- 
sired an  abolition  of  the  inspection  laws  should 
take  this  opportunity  to  accomplish  that  reform. 
The  vote  was  then  taken,  and  the  section  was 
agreed  to,  ayes  92,  noes  10,  as  follows : 

AYES— Messrs.  Angel,  Archer,  Ayrault,  F.  F.  Backus 
H.  Backus,  Baker,  Bascom,  Bergen,  Bowdish,  Brayton 
Bruce.  Brundage,  Burr,  Cambreleng,  D.  D.  Campbell,  R. 
Campbell,  jr ,  Caudle,  Chamberlain,  Chatfield,  Clark, 
Clyde,  Conely,  Cook,  Crooker,  Cuddeback,  Dana,  Dan- 
forth,  Dodd,  Dorlon,  Gebhard,  Harris,  Hawley,  llotchkiss, 
Hunt,  Hunter,  A.  Huntington,  E.  Huntingtrn,  Hyde,  Jor- 
dan, Kemble,  Kernan.  Kingsley,Kirkland,  McNeil.  McNitt, 
Marvin,  \iaxwell,  Miller,  Morris,  Murphy,  Nellis,  Nicho- 
las, O'Cdnor,  Parish,  Patterson,  Penniman,  Perkins,  Porter, 
Powers,  President,  Rhoades,  Richmond,  Riker,  St.  John, 
Salisbury,  Sanford,  Sears.  Shaver,  Shaw,  Sheldon,  E.  Spen- 
cer, Stanton,  Stephens,  Stetson,  Stow,  Strong,  Taft,  Tag- 
gart,  J.J.  Taylor,  Tilden,  Townsend,  Tuthill.Van  Schoon- 
hoven,  Waterbury,  White,  Willard,  Witbeck,  Wood,  A. 
Wright,  Yawger,  Young,  Youngs — 92. 

NAYS — Messrs.  Bouck,  Cornell,  Harrison,  Hart,  Jones, 
Loomis,  Mann,  Shepard,  Smith,  Tallmadge— 10. 

Mr.  MARVIN  moved  that  the  Convention  re 
turn  to  the  1st  section  as  amended,  which  was 
agreed  to. 

Mr.  PERKINS  moved  to  strike  out  the  word 
"  Treasurer,"  with  the  view  of  moving  so  to 
amend  that  he  be  appointed  by  the  legislature, 
and  hold  his  office  for  one  year.  He  gave  a  few 
reasons  why  that  should  be  done. 

Mr.  LOOMIS  said  it  had  been  remarked  that 
in  correcting  past  evils,  human  nature  was  prone 
to  run  into  the  other  extreme.  He  had  so  view- 
ed the  report  of  the  committee  on  this  pending 
question.  He  approved  of  the  amendment  of  the 
gentleman  from  St.  Lawrence.  In  relation  to  the 
others  mentioned  in  this  section,  he  expressed 
the  fear  that  in  endeavoring  to  take  away  Execu- 
tive patronace,  they  might  endanger  that  balance 
which  should  be  preserved  between  the  depart- 
ments of  the  Government.  The  idea  of  taking  the 
nomination  of  the  cabinet  of  the  Governor  from 
the  legislature  was  one  which  did  not  originate 
with  those  who  started  the  subj  ect  of  calling  a 
Convention.  It  was  a  whig  project,  and  there 
was  no  evidence  that  it  was  called  for  by  popular 
sentiment. 

Mr.  PERKINS  called  for  the  yeas  and  nays, 
and  they  were  ordered,  and  being  taken,  result- 
ed thus — yeas  10,  nays  89  : 

AYES— Messrs.  Bascom,  Bergen,  Brayton,  Cornell, 
Hunt,  Kemble,  Loomis,  Mann,  Perkins,  Stetson— 10. 

NAYS— Messrs.  Angel,  Archer,  Ayrault,  F.  F.  Backus, 
H.  Backus,  Baker,  Bouck,  Bowdish,  Bruce,  Brundage, 
Burr,  Cambreleng,  D.  D.  Campbell,  Candee,  Chamberlain, 
Chatfield,  Clark,  Clyde,  Conely,  Cook,  Crocker,  Cudde- 
back, Dana,  Danforth,  Dodd,  Dorlon,  Flanders,  Gebhard, 
Harris,  Harrison,  Hart,  Hotchkiss,  Hunter,  A.  Huntington, 
E.  Huntington,  Hyde,  Jones,  Jordan,  Kernan,  Kingsley, 
Kirkland,  McNeil,  McNitt,  Marvin,  Maxwell,  Miller,  Mor 
ris,  Nellis,  Porter,  Powers,  President.  Rhoades,  Richmond, 
Riker,  St.  John,  Salisbury ,  Saniord,  Sears,  Shaw,  Sheldon, 
Shtpard,  Smith,  E.  Spencer,  Stanton,  Stephens,  Stow, 
Strong,  Taft,  Tallmadge,  Tilden,  Townsend,  Tuthill, 
V«che,  Van  Schoonhoven,  Waterbury,  White,  Willard, 
Witbeck,  Wood,  A.  Wright,  Yawger,  Young,  Youngs— 89. 

Mr.  MARVIN  moved  to  strike  out  all  that  part 
of  the  section  which  fixes  the  salaries  of  the  of- 
ficers, and  insert— "  Each  of  (he  officers  in  this 
article  numed,  except  the  speaker  shall  at  stated 
times  during  his  continuance  in  office,  receive  for 
his  services  a  compensation  which  shall  not  be  in- 
creased or  diminished  dining  the  time  for  which 
he  shall  have  been  elected;  nor  shall  he  receive 
any  fees  or  perquisites  of  office."  Mr.  M.  briefly 


explained  his  amendment.  He  opposed  the  fix- 
intj  of  the  salaries  of  the  public  officers  in  the 
Constitution.  The  people  should  not  part  with 
the  power  of  regulating  the  compensation  of  their 
servants  from  time  to  limeasciicumstancesmight 
require.  Fix  the  salary  in  the  constitution, and  'he 
people  could  not,  by  their  representations  reach 
it,  and  it  must  remain  as  fixed  in  the  constitution, 
whatever  change  should  take  place.  The  time 
might  come  when  many  of  these  officers  would 
have  little  to  do,  indeed  perhaps  some  of  them 
might  be  dispensed  with,  and  yet  the  power  to 
modify  their  salaries  will  have  been  patted  with; 
and  the  people  could  not  release  themselves  from 
the  payment  of  the  salary  to  an  officer  because 
useless,  without  an  amendment  of  the  Constitution. 
He  had  the  other  day  in  committee  of  the  whole 
insisted  that  the  fixing  of  salaries  in  the  Constitu- 
tion was  against  all  'he  principles  of  republican 
government  The  people  should  never  part  with 
the  power  of  declaring  by  their  representatives 
the  amount  which  they  feel  willing  and  able  to 
pay.  At  the  same  time,  the  Legislature  ought 
not  to  have  the  power  of  changing  the  compen- 
sation of  a  public  servant  during  the  time  for 
which  he  was  elected.  The  period  for  which 
these  officers  were  elected  was  brief.  The  legis- 
lature should  have  the  power  of  providing  at  any 
time  the  compensation  to  be  paid  to  every  officer 
elected,  before  his  election.  The  public  servant 
would  then  always  know  how  much  he  was  to 
receive.  It  tested  upon  the  principles  of  a  con. 
tract  by  which  the  people  agreed  to  pay  a  certain 
amount  for  the  service  tendered  during  a  certain 
short  fixed  period  But  it  would  be  unwise  on  the 
part  of  the  people  to  agree  now  in  a  constitution 
that  they  would  at  all  times  pay  a  sum  now  fixed, 
notwithstanding  any  changes  which  might  here- 
after occur.  He  had  a  great  repugnance  to  this 
anti-republican  principle  of  fixed  salaries  in  the 
Constitution.  He  had  looked  hastily  through  all 
Constitutions  of  the  United  States,  and  in  no  in- 
stance in  the  free  States  were  any  salaries  fixed, 
and  in  only  two  of  the  slave-holding  States,  in 
one  of  which,  Louisiana,  the  salaries  of  the 
Judges  only  were  fixed  ;  and  in  the  other,  Flori- 
da, the  salaries  of  the  Governor  and  Judges  were 
fixed.  There  may  have  been  reasons  in  those 
States  for  fixing  these  salaries.  But  what  did 
this  almost  entire  absence  of  fixed  salaries  in  the 
American  Republican  Constitutions  prove  ?  Pie 
submitted  that  it  proved  the  unwillingness  of  the 
people  to  part  with  the  power  of  regulating  the 
payment  of  their  servants.  He  hoped  his  amend- 
ment would  prevail.  Mr.  M.  said  that  before  he 
took  his  seat  he  would  detain  the  Convention  a 
moment  with  a  matter  in  which  he  was  personal- 
ly interested.  It  would  be  recollected  that  in 
the  debate  some  days  since  upon  the  legislative  , 
department,  he  took  some  part.  The  gentleman 
from  Kings  (Mr.  MURPHY)  proposed  to  restore 
the  article  of  the  present  Constitution  in  relation 
to  the  compensation  of  members  of  the  legisla-. 
:ure.  He  (Mr.  M.)  was  in  favor  of  the  amend- 
ment. But  another  member  from  Kings  (Mr. 
SWACKHAMER)  immediately  proposed  an  amend- 
ment limiting  the  sessions  of  the  legislature  to 
ninety  days.  To  this  amendment  he  (Mr.  M.) 
was  decidedly  opposed,  and  he  submitted  some 
remarks,  occupying  some  ten  or  more  minutes. 


518 


He  (Mr.  M.)  was  followed  in  the  debate  by  the 
gentleman  from  Kings,  (Mr.  S.)  and  he  now 
found  in  the  Atlas  of  last  evening  a  report  of  the 
debate,  in  which  his  (Mr.  M.)  remarks  were  corn- 
pressed  into  a  few  lines.  Of  this  he  did  not  com- 
plain. He  knew  it  was  impossible  to  report  and 
publish  all  that  was  said  here;  but  he  found 
in  the  reported  remarks  of  the  gentleman 
from  Kings,  (Mr.  S.)  language  attributed  to 
him  (Mr.  M.)  which  he  never  used,  and 
which  advanced  principles  the  very '  reverse 
of  those  which  he  (Mr.  M.)  advocated.  Mr.  M. 
read  from  the  reported  speech,  "  He  (Mr.  MAR- 
VIN) had  taken  the  same  track  as  his  colleague, 
but  he  had  gone  one  step  farther,  he  could  not 
stop  short  of  dear  old  England,  as  though  she  had 
any  thing  to  do  with  making  a  republican  consti- 
tution." Again,  "  he  also  spoke  of  the  British 
parliament  as  the  great  foundation  of  liberty  and 
school  of  instruction  for  the  people."  Again, 
"  But  the  gentleman  has  other  reasons.  Ameri- 
can reasons  for  opposing  the  amendment.  He 
considered  the  legislature  a  first  rate  school  for 
our  people,  and  therefore  the  members  must  be 
allowed  to  sit  here  five  or  six  months  for  our 
benefit,  and  to  enlighten  the  large  children  of 
this  State."  He  (Mr.  M.)  would  not  refer  to  any 
other  portion  of  the  reported  speech.  He  would 
say  that  he  had  uttered  no  such  language  or  any 
thing  of  the  kind  or  character ;  on  the  contrary 
the  entire  scope,  tenor  and  effect  of  his  remarks 
were  the  most  of  those  used  for  him  by  the  gen 
tleman  (Mr.  S.)  He  (Mr.  M.)  on  that  occasion 
took  the  ground  that  limitations  upon  the  repre- 
sentatives of  the  people  were  in  effect  limitations 
upon  the  action  of  the  people,  and  a  restraint  up- 
on liberty,  that  the  only  mode  which  the  people 
fead  of  acting,  of  transacting  the  State  affairs  was 
by  their  immediate  representatives.  He  did  say 
that  the  legislature  was  the  people's  parliament 
whom  they  by  their  representatives  met  and  con- 
sulted, and  deliberated,  and  transacted  the  great 
affairs  of  State.  He  said  nothing  about  the  British 
parliament,  He  did  say  that  the  legislative  hall 
of  a  few  people  was  the  great  battle  ground  o: 
freedom,  and  that  any  wound  inflicted  upon  the 
freedom  of  its  action  was  a  wound  inflicted  upon 
free  institutions,  tending  to  the  concentration  o 
power  in  the  hands  of  the  few.  He  did  not  saj 
one  word  about  the  legislature  being  a  gooc 
school  for  the  people.  On  the  contrary  his  whole 
argument  was  in  defence  of  what  he  esteemed  the 
rights  of  the  people,  and  the  course  of  popula 
liberty.  How  these  errors  had  occurred  he  couli 
not  say.  He  had  only  heard  a  small  portion  o 
the  remarks  of  the  gentleman,  (Mr.  S.) 

Mr.  KIRKLAND  opposed  lumbering  the  con 
stitution  up  with  provisions  of  this  description 
*Why  should  we  in  this  fundamental  law  esta 
blish  this  iron  rule  in  relation  to  compensation  o 
officers.  The  consideration  of  the  changing  va 
lue  of  money  in  this  changing  country,  shoul< 
alone  deter  "us  from  doing  this.  The  fact  als 
that  by  the  same  change  the  duties  of  the  officer 
might  so  vary  as  to  require  also  a  variation  ii 
their  pay,  was  another  reason.  He  supposed  tha 
in  settling  the  question  of  the  compensation  o 
Governor  or  Lieut.  Governor,  the  principle  was 
settled  that  this  matter  should  be  left  to  legisla 


on,  where  it  had  always  heretofore  been  vested, 
nder  former  censtitutions. 
Mr.  RICHMOND  regretted  to  see  the  current 
etting  to  the  reversal  of  the  vote  of  the  -commit- 
ee  on  this  point.  The  argument  was  that  this 
alary  should  not,  under  the  changes  which  mo- 
ey,  &c.,  were  undergoing,  be  forced  permanent- 
y  on  the  constitution,  but  should  be  left  to  the 
eople,  through  the  legislature,  to  make  such 
hanges  when  required.  Arid  yet  what  sort  of 
iberality  do  they  propose  to  allow  to  the  legisla- 
jre  ?  Why,  that  the  salary  should  not  be  changed 
uring  the  term  for  which  the  individual '  should 
old.  Mr.  R.  referred  to  the  fact  that  it  was  pro- 
osed  to  provide  that  an  immense  number  of  offi- 
ers  should  be  salaried  officers,  whether  for  long 
r  short  terms.  How  then  would  the  people  re- 
ulate  the  salary  of  a  man  who  held  for  ten  years, 
t  would  be  as  permanently  fixed  as  in  the  con- 
titution.  And  if  salaries  were  to  be  thus  fixed, 
ie  would  prefer  to  do  it  here.  But  he  desired  to 
eave  the  whole  matter  to  the  legislature.  He 
vould  ask  the  gentleman  from  Chautauque  (Mr. 
MARVIN)  if  he  would  go  with  him  on  this  point? 
Mr.  MARVIN  would  like  to  understand  the 
>osition  of  the  gentleman  himself.  He  (Mr.  R.) 
las  voted  against  striking  out,  even  when  the 
question  was  the  naked  one  of  striking  out,  thus 
Doting  to  fix  it  for  all  time  to  come,  so  that  the 
egislature  should  have  no  control  over  the  mat- 
er at  all.  Mr.  M.  said  that  the  whole  effect  of 
lis  amendment  was  that  the  legislature  shall  esta- 
lish  the  compensation,  and  when  they  have  done 
30,  that  they  shall  not  have  power  either  to  raise 
ar  reduce  it,  during  the  time  for  which  the  officer 
shall  have  been  appointed  or  elected.  And  the 
section  provides  that  most  of  the  officers  shall 
hold  for  two  years,  and  the  longest  term  is  but 
three  years.  It  proceeds  on  the  just  and  equita- 
ble principle  of  a  contract  between  the  people  on 
;he  one  side  and  their  servants  on  the  other — so 
;hat  the  servant  knows  what  his  pay  is  to  be  when 
tie  sery.es  the  people.  But  the  legislature  may  at 
any  session  pass  laws  raising  or  reducing  the 
compensation  but  not  to  operate  on  the  then  in- 
cumbent. 

Mr.  RICHMOND  continued  to  argue  in  favor 
of  leaving  the  question  to  the  legislature  without 
any  restrictions. 

Mr.  TAGGART  had  introduced  a  proposition 
to  strike  out  the  salary  of  Governor,  and  Lieut. 
Governor  which  was  adopted  by  a  very  strong 
vote.  He  supposed  that  that,  therefore,  was  a 
sett  led  and  fixed  question.  He  had  endeavored 
to  convince  himself  that  in  reference  to  these  of- 
ficers, it  was  a  matter  of  indifference,  whether 
their  pay  was  fixed  in  the  Constitution  or  left  to 
the  Legislature,  but  the  more  he  reflected  upon 
the  matter,  the  more  he  was  convinced  that  the 
principle  of  fixing  it  in  the  Constitution  was 
wrong  and  would  lead  to  disastrous  results.  Mr. 
T.  referred  to  the  present  duties  of  some  of  the 
officers,  to  the  great  power  of  the  Comptroller,  of 
which  there  was  a  general  complaint — arid  urged 
that  should  the  Legislature  reduce  them,  if  Ihis 
was  fixed  in  the.  Constitution  they  would  have  no 
power  to  make  a  commensurate  reduction  of  sa- 
laries. As  regarded  the  question  raised  by  his 
colleague  (Mr.  RICHMOND)  it  would  only  be  fixed 
by  the  Legislature  for  ten  years.  The  object  was 


519 


to  prevent  any  collision  in  high  party  times,  on 
the  subject  of  compensation  between  theLtgisla- 
ture  and  the  State  officers,  tor  the  time  being  — 
They  could  always  change  it  with  reference  to  fu- 
ture incumbents.  He  feared  that  the  effect  of  fix- 
ing  the  salaries  in  the  Constitution  would  excite 
bickerings  among  the  people  through  the  move- 
ments of  men  who  made  political  capitals  out  of 
these  questions,  and  to  the  detriment  of  the  other 
great  principles  involved  in  the  Constitution  when 
that  instrument  came  to  be  submitted  to  the  peo- 
ple. 

Mr.  BASCOM  was  in  favor  of  the  amendment. 
It  was  said  that  the  officers  were  the  servants  of 
the  people,  but  if  the  other  principle  was  adopted 
the  position  would  be  changed,  and  the  pay  of 
these  officers  would  be  beyond  the  reach  of  the 
people  for  a  quarter  of  a  century.  Again  was  it 
right  that  the  legislature  should  be  allowed  to  in- 
crease the  duties  of  an  officer,  or  to  reduce  them 
without  being  at  liberty  to  vary  their  salaries  ac- 
cordingly. To  illustrate :  If  the  public  works 
are  to  remain  in  their  present  condition,  as  the 
movements  of  the  folly  of  those  who  projected 
them,  then  $1600  was  too  much  for  a  canal  com- 
missioner, but  if  on  the  other  hand  a  contrary 
principle  should  be  adopted,  the  compensation 
would  be  too  little.  He  trusted  therefore, 
that  this  important  matter  should  be  disposed  of 
and  subjects  of  more  importance  be  considered. 

Mr.  VAN  SCHOONHOVEN  did  not  distrust 
the  legislature  any  more  than  the  Convention — 
the  point  involved,  to  him  appeared  to  be  whe- 
ther we  should  cast  the  immense  labor  of  fixing 
the  salary  of  all  die  officers  of  government  upon 
the  legislature,  or  do  a  part  of  it  here.  He  de- 
sired also  to  remove  from  the  legislature  this  mat- 
ter, being  as  it  was  yearly  made  a  topic  of  mere 
political  agitation.  In  relation  to  the  governor 
from  his  high  station  it  was  most  likely  that  he 
would  never  descend  to  operate  or  participate  in 
this  agitation,  but  with  other  officers  of  a  lower 
grade  it  was  a  different  matter.  There  was  a  strong 
difference  in  the  two  cases,  and  he  mentioned  it 
to  show  that  there  would  be  no  inconsistency  in- 
volved in  thus  adopting  a  different  course  as  to 
the  different  officers.  As  regards  the  changing 
value  of  money,  he  would  ask  how  much  gentle- 
men thought  the  change  was  within  the  last  ten 
years.  The  discount  on  a  dollar  was  about  one  or 
two  per  cent.,  never  exceeding  four  per  cent,  even 
in  high  speculating  times.  But  in  times  of  pres- 
sure the  dollars  increased  in  value  in  the  hands 
of  the  capitalist,  and  it  was  the  laboring,  working 
classes  who  were  injured.  The  public  officers 
rather  profited  than  suffered  by  the  change.  This 
was  the  curse  of  the  whole  thing — these  changes 
did  tend  to  make  the  rich  richer  and  the  poor  poor- 
er, so  that  u  wuul'.i  never  iesiili  tolhe  injury  of  the 
public  officer.  Bui  the  public  officer  should  be  on 
tin-;  saline  level  with  others  of  the  public,  and  there 
was  no  reason  why  them  should  be  a  legislative 
interposition  in  behalf  of  ihe  executive  officers, 
in  tmes  ol  disaster  and  pressure.  But  the  period 
had  never  arrived  when  the  salary  proposed  here 
would  not  have  been  suUieifiit  to  pay  public  offi 
cer*.  Hrf  wi.s  led  to  gu.ird  the  public  from  those 
influences  which  the  public  officers  have  it  fully 
iu  their  power  to  exert.  He  had  no  doubt  that 
this  influence  had  been  brought  to  bear  when  sala- 


ries had  been  raised  by  the  legislature  heretofore. 
Hut  this  was  an  evil  that  could  not  always  be  avoi- 
ded— the  public  officers  had  always  this  power. — 
He  deemed  that  it  was  desirable  to  fix  these  salaries 
for  a  quarter  of  a  centur, — the  members  of  the 
committee  had  expressly  stated  that  thwy  preferred 
to  limit  the  period  to  about  ten  years,  an  i  leave  it 
to  the  legislature  to  vary  them  aiterwards.  But 
he  did  not  desire  to  see  it  left  to  annual  agitation 
Mr.  V.  S.  expressed  his  preference  tor  the  section 
of  the  committee  amended  by  the  adoption  of  the 
proposition  of  the  gentleman  from  Oswego,  (Mr. 
HART.)  Mr  V.  S  continued  his  argument  at 
some  length  in  favor  of  his  position.  He  had  seen 
so  much  of  the  evil  consequences  of  the  agitation 
in  the  legislature  on  this  subject,  that  he  desired 
to  see  some  plan  fixed. 

Mr.  MARVIN  confessed  that  he  was  at  a  loss  to 
understand  which  side  of  the  question  the  gentle- 
man was  arguing.  If  the  salary  was  to  be  fixed 
in  the  constitution  he  could  understand  that  in 
time  of  monetary  pressure,  the  office  would  be 
elevated  above  the  disaster  and  evil  that  bore 
down  the  rest  of  the  people.  It  seemed  to  him 
that  the  gentleman's  arguments  were  all  on  his 
(Mr.  M.'s)  side.  The  argument  of  the  gentleman 
was  that  this  question  could  be  settled  better  here 
in  Convention  than  hereafter  by  the  legislature — 
that  he  would  not  leave  it  to  agitation  there. — 
Has  it  come  to  this  that  we  desire  to  place  these 
matters  above  all  agitation?  Governments  can  be 
so  arranged  as  to  be  above  all  agitation — so  that 
the  calm  sea  of  despotism  would  never  be  ruf- 
fled by  the  slightest  wave  of  popular  feeling. — 
This  was  the  very  principle  adopted  by  govern- 
ments of  a  despotic  character. 

Mr.  VAN  SCHOONHOVEN  rose  to  reply  to 
Mr.  MARVIN. 

Mr.  F.  F.  BACKUS  rose  at  the  same  time,  and 
the  President  said  he  was  entitled  to  the  floor, 
not  having  spoken. 

Mr.  VAN  SCHOONHOVEN  said  he  knew 
what  the  gentleman  meant  to  say,  and  he  could 
say  it  after  he  (Mr.  V.  S.)  was  through. 

Mr.  BACKUS  said  he  did  not  take  up  much 
time  in  talking,  and  did  not  know  how  the  gen- 
tleman could  know  what  he  intended  to  say. 

Mr.  VAN  SCHOONHOVEN  said  he  could  read 
it  in  his  countenance. 

Mr.  BACKUS  replied  that  perhaps  he  was  mis 
taken. 

Mr.  VAN  SCHOONHOVEN  claimed  the  right 
to  the  floor,  as  he  had  already  begun  to  address 
the  Chair. 

The  PRESIDENT  said  the  gentleman  from 
Monroe  was  entitled  to  the  floor. 

Mr.  F.  F.  BACKUS  had  but  a  word  or  two  to 
say  on  the  disposition  manifested  to  continue  this 
debate.  We  had  been  told  1SOO  years  ago,  that 
everything  under  heaven  and  in  the  sea  might  be 
tamed  except  the  tongue.  He  thought  he  could 
appeal  to  this  convention  for  the  proof  that  this 
rule  yet  held  good  The  tongue  is  absolutely  un- 
tameable.  He  did  not  rise  to  cast  any  blame  any- 
where, for  he  considered  this  to  be  a  disease, 
which  unless  soon  remedied,  would  prevent  us 
doing  what  we  were  sent  here  to  do — to  make  a 
constitution.  The  only  remedy  that  he  could 
think  of,  would  be  to  avoid  the  committee  of  the 
whole  hereafter.  To-day,  we  had  had  the  same 


520 


gentlemen  speaking  who  spoke  in  committee  o 
the  whole,  and  precisely  the  same  speeches,  even 
to  the  crossing  of  t's  and  dotting  of  i's.  These 
gentlemen  must  suppose  that  we  who  listen  eithei 
have  very  bad  memories  or  were  very  dull  o 
comprehension,  or  else  they  were  advocates  o 
the  old  theology,  which  gave  line  upon  line  anc 
precept  upon  precept. 


Mr.  VAN  SCHOONHOVEN  and  Mr.  BAKER 
rose,  and  the  floor  was  given  to  the  latter. 

Mr.  BAKER'S  view  in  rising,  was  to  put  a 
termination  to  this  debate,  believing  that  every 
member  had  fully  made  up  his  mind  as  to  how 
he  would  vote.  But  if  there  was  one  member 
who  would  manifest  his  relation  to  Walter  the 
Doubter,  so  far  as  to  say  that  his  mind  was  not 
yet  made  up,  or  any  gentleman  who  would  say 
that  he  expected  to  change  the  opinion  of 
single  member  here  by  further  remarks,  he 
•jvould  withhold  the  motion  he  was  about  to  make. 
None  answering,  Mr.  B.  moved  the  previous 
question.  And  there  was  a  second  —  ayes  29, 
nays  not  counted;  and  the  main  question  was  or- 
dered. 

The  question  being  taken  on  Mr.  MARVIN'S 
amendment,  it  was  adopted,  ayes  73,  noes  33,  as 
follows  : 

AYES—  Messrs.  Angel,  Archer,  Ayrault,  F.F  Backus,  H. 
Backus,  Baker,  Bascom,  Bergen,  Bouck,  Bowdish,  Bray- 
ton,  Bruce,  Burr,  Cambreleng,  D.  D  Campbell,  Candee, 
Chamberlain,  Gonely,  Cornell,  Crooker,  Dodd,  Flanders, 
Gebhard,  Harris,  Harrison,  Hawley,  Hunt,  Hunter,  E. 
Huntington,  Jordan,  Kemble,  Kirkiand,  Loomis,  Marvin, 
Murphy,  Nelli*,  Nelson  Nicholas,  O'Conor,  Parish,  Pat- 
ters n,  Penniman,  Perkins,  Porter,  Powers,*  President, 
Khoades,  Riker,  Rug.-les,  St.  John,  Salisbury,  Sanford, 
Shaw,  Shepard,  Smith,  E.  Spencer,  Stanton,  Stephens, 
Stetson,  Stow,  Taft't,  Taggart,  Tallmadge,  J.  J.  Taylor, 
Tilden,  Tuthill,  Vache,  Waterbury,  White.Willard,  Wor- 
den,  A.  Wright,  Young  —  73. 

NOES—  Messrs.  Brundage,  R.  Campbell,  Jr.  Chatfield, 
Clark,  Clyde,  Cook,  Cud'teback,  Dana,  Danforth,  Dorlon 
Hail,  Hotchkiss,  A.  Huntington,  Hyde,  Jones,  Kernan 
Kinsley,  Mann,  McNeil,  McNitt,  Maxwell,  Miller,  Mor 
ris,  Richmond,  Sears,  Shaver,  Sheldon,  Strong,  Townsend 
Van  Schoonhoven,  Wood,  Yawger,  Youngs  —  33. 

Mr.  JONES  moved  now  to  pass  over  the  first 
section,  without  final  action  upon  it.  If  the  of- 
fice of  Surveyor  General  was  retained,  as  it  now 
existed,  it  would  be  necessary  to  provide  for  the 
election  of  that  officer  in  this  section. 

This  motion  was  agreed  to. 

Mr.  CHATFIELD  moved  to  restore  the  sec. 
tion  providing  for  the  election  of  a  state  engineer 
&c.  as  amended  in  committee  of  the  whole. 

Mr.  CHATFIELD  explained  the  object  of  the 
committee  in  reporting  this  section.  First  as  the 
office  of  Surveyor  General  had  become  very  much 
reduced,  its  duties  and  others  could  be  discharged 
by  a  single  individual  —  that  a  State  officer,  fully 
qualified,  should  have  the  power  of  supervising 
the  reports,  &c.  of  engineers,  from  which  hereto- 
fore much  bad  legislation  had  resulted  —  and  that 
one  member  at  least  of  the  Canal  Board  should 
possess  these  requisite  qualifications  and  expe- 
rience for  that  purpose.  The  Canal  Board  had 
charge  of  thegreatest  and  most  important  monetary 
interests  of  the  State,  and  the  committee  did  not 
desire  to  reduce  its  number.  He  preferred  rather 
to  increase  its  number  and  thereby  to  divide  and 
increase  the  responsibility.  It  was  with  these 
views  that  the  section  was  reported,  and  he  be-. 


lieved  its  adoption  would  result   in  benefit,  and 
would  be  sustained  by  the  people. 

Mr.  RHOADES  agreed  entirely  with  (he  chair, 
man  of  the  committee  (Mr.  CHATFIELD,)  in  his 
view  of  this  matter.  He  believed  had  this  office 
existed  before,  millions  of  dollars  would  have  been 
saved  to  the  people  of  this  State,  that  had  been 
lost  through  false  estimates.  There  had  been  a 
great  want  of  tesponsibility,  he  uraed,  in  this  de- 
partment. Mr.  R.  concluded  by  proposing  the 
following  amendment : 

2.  A  State  Engineer  and  Surveyor  shall  be  chosen  at 
a  general  election,  who  shall  hold  his  office  for  two  years 
and  whose  powers  and  duties  in  relation  to  the  canals  and 
other  interests  of  the  State  shall  be  prescribed  by  the  Le- 
gislature. 

Mr.  STETSON  referred  to  the  action  by  which 
this  section  was  stricken  out  by  a  large  vote,  and 
said  that  nothing  had  been  yet  said  to  induce  him 
:o  change  his  position  in  voting  to  strike  out. — 
This  question  should  be  viewed  alone  as  a  propo- 
sition to  create  a  new  <  ffice.  The  Surveyor  Gene- 
ral could  well  be  dispensed  with,  but  this  was  a 
matter  that  could  easily  be  settled  hereafter.  He 
loped  the  section  would  not  be  restored. 

Mr.  VAN  SCHOONHOVEN  continued  the  de- 
rate on  the  question  of  fixing  the  salary  in  reply 
,o  Mr.  MARVIN. 

Mr.   DANFORTH    believed  that    the  people 
re  willing  to  pay  public  officers  a  full  compen- 
ation  for  all  services  rendered  by  them,  and  that 
hey  would  never  call  on  the  legislature  to  reduce 
.  salary,  because  a  public  officer  happened  to  re- 
eive  a  dollar  more  than  their  actual  expendi- 
ures,  in  consequence  of  an  increase  in  the  value 
f  money.     The  idea  that  public  officers  were  to 
e  pensioners,  and   that  they  ought  to  receive  a 
are  support,  and  that  this  matter   was  to  be  left 
o  the  legislature,   in  order  to  keep  salaries  al- 
ways within  that  precise  limit,  was  an  idea  which 
the  people  never  would  sanction.      The  position, 
therefore,  that  the  matter  of  salaries  must  be  left 
out   of  the  constitution,  that  the  people  might 
raise  or  cut  them  down  according  to  the  value  of 
money,  was   a  fallacy.     He   had  no  objection  to 
having  it  there,  if  the  Convention  saw  fit,  but  not 
on  any  such  grounds. 

Mr.CHATFIELD  would  disembarrass  the  ques- 
tion of  the  one  of  salary  by  leaving  that  portion 
out  of  his  motion.  Mr.  C  said  if  the  office  of 
Surveyor  General  was  abolished,  the  duties  of 
the  office  would  still  have  to  be  performed  by 
some  one.  Now  there  was  not  a  chief  clerk  in  any 
department  who  did  not  receive  quite  as  much 
compensation  as  the  Surveyor  General.  So  that 
therefore  by  abolishing  the  office  there  would  be 
no  saving  to  the  people  effected,  while  the  effect 
would  be  to  deprive  the  Canal  Board  of  one  of  its 
members. 

Mr.  HARRIS    said  it    was    not  without  some 
hesitation  that  he   moved  to  strike   out  this  sec  - 
And  he  confessed  that  he  had  since  some- 
what changed    his  view  of  the  question,    under 
what  had  been   since  said   of  the   importance  of 
divesting  the  Comptroller  of  some  of  his  immen  £ 
iower  and  patronage — which  it  had  been  a  sub- 
ect  of  frequent  remark,   exceeded   those   of  all 
)ther  executive  officers  put  together.       If  there- 
ore  the  section  could  be  amended  as  he  had  in- 


521 


dicated,  he  should  be  glad  to  see  it  restored,  and 
should  vote  to  restore  it  with  that  view, 

Mr.  JORDAN  rose  to  enquire  whether  it  would 
be  in  order  to  move  an  amendment  to  the  motion 
of  the  chairman  of  the  committee.  He  had  voted 
to  strike  out  the  section  in  committee  of  the 
whole,  because  he  was  opposed  to  creating  a  new 
officer  upon  a  salary  of  $"2000,  not  knowing  at  the 
time  what  were  to  be  the  precise  duties  of  that 
officer.  He  was  not  advised  whether  if  the  State 
should  undertake  new  public  works  or  proceed 
to  finish  those  already  begun,  this  officer's  duty 
would  be  to  take  charge  of  those  works  profes- 
sionally, or  whether  a  chief  engineer  would  be 
professionally  employ€d,and  the  duty  of  this  office 
be  merely  to  supervise  his  proceedings,  for  the 
purpose  of  detecting  errors  and  false  estimates, 
and  to  have  a  general  superintendence  of  the  ca- 
nals. He  (Mr.  J.)  had  supposed  of  the  former, 
that  no  competent,  scientific  and  practical  engi- 
neer could  be  obtained  for  the  salary  proposed. — 
If  the  latter,  then  the  sum  fixed  might  be  dispro- 
portioned  to  the  services  he  would  be  called  on 
to  render.  He  agreed  with  the  Hon.  chairman  of 
the  committee,  that  it  might  be,  and  in  his  judg- 
ment, was  of  great  importance  to  the  interests  of 
the  State  to  have  in  commission  an  officer  of  scien- 
tific attainments  and  practical  experience,  capa- 
ble of  understanding  and  correcting  the  errors  and 
false  estimates  alluded  to.  And  inasmuch  as  the 
amendment  to  the  first  section  moved  by  the  gen- 
tleman from  Chautauque,  (Mr.  MORRISON,)  had 
been  adopted  by  the  Convention,  which  in  its 
terms  applied  to  all  the  officers  mentioned  in  the 
article,  he  should  vote  to  retain  the  section, 
with  a  view  to  an  ulterior  motion  to  amend  it  by 
striking  out  all  after  the  third  line,  so  as  to  bring 
the  office  within  the  operation  of  the  amendment 
to  the  first  section.  He  was  willing  to  entrust  it 
to  the  legislature  to  fix  the  salary,  believing  that 
they  would  apportion  the  salary  according  Fo  the 
services  required  The  immense  magnitude  of 
the  public  works  already  constructed  and  begun, 
their  importance  to  the  revenues  of  the  State,  and 
the  manifest  propriety,  and  he  might  say,  the  co- 
gent necessity,  of  having  them  well  cared  for  by 
a  responsible  official,  would  induce  him  to  restore 
the  section  under  consideration. 

Mr.  S  i'ETSON  said  he  would  ask  the  indulgence 
of  i  lie  Convention  a  moment,  to  reply  to  an  allusion 
whicn  he  had  heen  informed  the  gentleman  Irom 
Otsego  (Mr.  CHATFIELD)  had  made  lo  him  whils 
he  was  absent  Mom  the  hall — namely:  That  his 
posn ion  to-da\,  in  opposing  the  motion  to  r^-tor 
the  section  ci  eating  the  new  office  of  State  Engi 
neer,  was  inconsistent  with  that  which  he  occu. 
pied  heretofore,  when  he  expressed  his  approba 
tion  of  the  report  of  the  committee,  with  the  ex 
cepiion  of  the  section  relating  to  Inspectors  of 
State  Prisons.  Mr.  S  said  it  was  true  that  he  did 
say  then  that  he  was  disposed  to  support  the  pro- 
visions if  the  report,  generally;  but  that  remark 
had  relation  lo  the  great  point  then  under  discus 
•  ion — the  election  of  the  State  officers,  and  espe- 
cially I  he  Comptroller,  Secretary  of  State,  and 
Attorney  General.  He  did  venture  to  go  beyond 
the  qiitsiion  and  express  his  disapprobation  of  the 
section  which  provided  for  the  election  of  Inspec- 
tors of  State  Prisons  ;  but  m  that  he  was  thought 
lo  be  out  ot  order,  by  the  gentleman  from  Otsego  ; 

40 


and  now  he  should  not  be  taken  to  have  given  hi* 
unqualified  assent  to  other  provisions,  not  ihen 
under  consideration,  and  lo  which  he  could  not 
have  referred,  without  being  also  deemed  out  of 
order.  He  (Mr.  S.)  said  he  would  again  repeat, 
that  he  was  unable  ro  see  any  good  reason  lor  the 
creation  of  this  new  office.  He  was  not  in  the 
habit  of  referring  to  the  action  of  political  con- 
ventions, caucuses,  and  newspapers,  ior  the  pur- 
pose of  fortifying  himself  in  an  argument  on  this 
floor;  but  such  had  been  the  course  of  others. — 
When  it  was  proposed  to  increase  the  Senate  to 
forty,  and  again,  only  to  thirty-six,  the  cry  had 
been  raised  from  all  quarters,  thaf  there  had  been 
no  popular  demand  for  the  increase,  neither  by 
the  people  in  caucus  or  convention,  or  by  the  press. 
He  did  not  himself  rely  much  on  that,  but  it  had  a 
powerful  influence  with  others;  and  he  thought 
the  same  argument  was  good  here  against  those 
who  used  it  then.  He  would  therefore,  in  imita- 
tion of  those,  demand  to  know  where  and  evhen 
popular  resolutions  had  been  passed,  cr  a  conven- 
tion, or  a  caucus  held,  requiring  the  creation  of 
this  new  office.  So  far  as  there  had  been  popular 
action  on  the  subject  of  reform,  as  to  officers,  it 
had  been  more  for  the  reduction  of  their  number — 
to  dispense  with  those  that  were  useless — than  to 
create  new  ones.  And  yet  the  proposition  here 
was  one  that  would  fasten  a  whole  horde  of  them 
upon  the  people,  or  rattier  upon  the  tax-payers — 
for  when  you  shall  have  placed  a  professional 
Engineer  in  the  Canal  Board,  and  entrusted 
him  with  the  general  supervision  of  canals  and 
internal  improvements,  he  will  take  good  care 
that  full  and  abundant  employment  be  given 
to  his  professional  brethren.  The  election  of 
of  this  state  engineer  was  equal  to  the  election  of 
The  whole  corps.  He  was  opposed  to  this  office 
of  state  engineer,  for  he  felt  certain  that  if  we 
were  to  have  him  we  would  have  quite  too  much 
engineering.  It  would  be  remembered  at  least: 
the  tax-payers  and  their  children  off  the  line  of 
the  canals,  would  long  remember  that  there  had 
been  quite  too  much  engineering.  If  the  time 
was  when  such  an  officer  was  required,  it  had 
gone  by  ;  and  its  creation  now  implied  that  new 
schemes  of  improvement  were  to  be  opened, 
which  would  require  the  constant  superintend- 
ence of  a  state  engineer.  He  could  not  see  where 
this  was  to  be ;  certainly  not  at  the  north  where 
they  had  to  build  their  own  railroads  and  pay 
their  own  engineer  with  their  own  means,  or  at 
the  south  where  they  also  were  to  proceed  unaid- 
ed by  the  state.  Nor  did  the  centre  seem  to  re- 
quire it,  for  now  they  had  a  canal  equal  to  their 
present  wants  and  the  enlargement  could  be  com- 
pleted gradually  as  we  got  in  funds,  without  fas- 
tening upon  the  State  an  officer  who  would 
only  invite  the  people  to  new  projects  and 
make  estimates  to  be  met  by  future  tax-payers. 
But  even  if  we  were  to  have  new  works  which 
would  require  an  engineer,  he  would  leave  him  to 
be  employed  by  the  Canal  Commissioners,  on 
whom  we  placed  the  responsibility  of  conduct- 
ing the  work.  It  was  a  department  of  business 
where  there  could  be  no  unity  without  a  head  to 
it  on  which  the  whole  responsibility  would  rest. 
By  providing  an  engineer  for  the  Commissioners, 
we  relieved  them  from  responsibility  and  ena- 
bled them  to  say,  "it  is  the  fault  of  the  engineer," 


522 


and  enabled  the  engineer  to  throw  it  back  upon 
the  Commissioners.     Mr.  S.  said  he  was  opposed 
to  electing  this  officer,  if  we  were  to  have  him. 
The    duties  to    be  performed    by  him  were  of  a 
scientific  kind,  so  much  so  that  few  of  our  citi- 
zens, except    perhaps  those  residing  along  the 
line  of  the  Canal,  could  have  an  accurate  opinion 
of  the  comparative  merit  and  skill  of  candidates. 
We    always  have    a  very    good  Governor    and 
a  very  good    Lieut.    Governor — we    always  had 
elected  very  good  ones,   because  every  citizen  of 
the    state    felt    a  deep    interest   in    the    duties 
of  those    officers.      A    stranger  was    not  put 
up   as  a  candidate    for    these    places;    he    had 
been    and    would    be    a    man  of  whose    capa- 
bilities   and    fitness,     the    people    can    judge, 
both  because  they  heard  of  him  before,  and  be- 
cause the  duties  of  the  place  concerned  the  per- 
sonal welfare  of  them  all,   and  come  under  the 
constant   observation   of  the  whole  country.     It 
would  be  so  when  you  elected  your  Comptroller, 
your  Secretary  of  State,  and  your  Attorney  Gener- 
al.    The  whole  people  had  much  to  do  with  these 
officers,   and  could  easily  judge  of  their  fitness, 
because  they  had  by  means  of  this  intercourse  and 
the  character  of  the  duties  an  opportunity  to  judge 
and  appreciate.     But  here  we  had  a  State  Normal 
School,  an  interesting  establishment,  and  to  where 
pupils  were  sent  from  all  the  counties.     The  head 
of  it  was  an  officer  employed  by  the  State,  and 
was  as  much  a  State  officer   as  an  Engineer  upon 
the  Canals.     Now  would  any  one   seriously  pro- 
pose to  make  that  an  elective  office,  and  that  the 
State  Conventions   at   Syracuse  and  Utica  should 
should  hereafter  make  the  nomination  !     Had  the 
time  come  when  school  district  trustees  were  to 
be  denied  the  power  of  employing  a  teacher,  so 
that  the  school  master  might  be  voted  for  at  town 
meeting  ?     Would  any  one   propose   to  elect  the 
managers  of  the   Lunatic  Asylum   at  Utica,  the 
commissioners  of  health  in  N.  York,  or  the  officer 
having  charge  ofscientic  instruction  at  WestPoint, 
if  that  were  a  State  institution  ?     He  believed  not ; 
and  he  (Mr.  S.)  regarded  the  duties   of  an   engi- 
neer as  analagous  in  their  character  to   those   he 
had  named.  They  required  qualifications  of  judg- 
ment combined  with  scientific  skill,  and  for  one, 
if  he  should  happen  to  be  sent  as  a  delegate   to  a 
State  Convention  at  Syracuse,  he  should  not  feel 
competent  to  make  a  judicious  selection.     The 
duties  of  an  engineer  were  without  the   range   of 
his  daily  observation  and  intercourse.     His   con- 
stituents, and  he  believed  the  constituents  of  oth- 
er gentlemen  would  feel  embarrassed   in  passing 
upon  the  comparative  merits  and  skill  of  civil  en- 
gineers, and  it  would  be  quite  as  awkard  in  vo- 
ting for  them.     Why  did  the  committee   desire 
to  make  this  an   elective   officer  ?    Why   it  had 
been   said,  so  as   to  make  him  directly  account- 
able to  the  people,  and  thus   prevent  false  and 
erroneous  estimates.    Sir,  said  (Mr.  S.)  I  admit  we 
have  had  delusive  estimates,  and   that  if  we   are 
to  have  new  works,  there  is  much  need  that   es- 
timates should  be  more  accurate.     But  his   opin- 
ion was  that  we  would   not  correct  the   evil   by 
changing  the  mode  of  his  appointment:  for  there 
already  had  been  popular   accountability   in   his 
selection.  The  canal  commissioners  were  elective 
officers  and  they  felt  their  responsibility  to  the 
people  in  selecting  an  engineer    competent  to 


make  true  estimates,  as  much  as  they  did  in 
performing  any  other  of  their  duties.  If 
they  J)ad  failed  to  select  judicious,  competent 
and  faithful  engineers,  i!  only  proved  ihat  other 
men  of  no  higher  intelligence  than  the  connnis. 
sioners,  and  of  means  not  so  good  for  judging  who 
would  be  sent  to  our  State  nominating  conven- 
tions, would  be  likely  to  fail  too.  The  canal  com- 
missioners had  months  in  which  to  enquire,  corn- 
pare,  and  finally  select,  whilst  a  delegate  to  a 
State  Convention,  after  being  exhausted  possibly 
in  a  two  days'  service,  in  helping  to  make  the  no- 
minations of  the  numerous  other  officers  we  were 
properly  making  elective,  would  have  only  a  few 
moments  in  which  to  act.  If  next  week,  he  found 
he  had  made  a  mistake,  it  would  be  too  late  to 
correct  it,  for  the  ticket  would  be  made  out.  All 
the  voter  could  do  would  be  to  decide  whether  he 
would  vote  this  ticket  or  another  made  in  the 
same  way,  or  throw  away  his  power  by  voting  for 
a  third  candidate,  for  whom  there  would  be  no 
chance.  rl  his  would  be  the  practical  operation- 
arid  in  hn  opinion  it  would  pioduce  the  very  mis- 
chiefs the  committee  said  they  designed  to  correct. 
They  had  provided  travelling  fees  lor  this  officer, 
and  he  (Mr.  S.)  would  sav  in  conclusion  that  he 
was  opposed  also  to  creating  a  political  agent  to 
travel  through  the  Stale. 

Mr.  PERKINS  said  the  gentleman's  objections 
applied  as  well  to  others  officers  as  to  the  Sur- 
veyor and  Engineer.  Mr.  P.  believed  the  people 
were  as  competent  to  judge  of  the  qualifications 
of  one  class  of  officers  as  the  other. 

Mr.  STETSON  interposed.  The  Governor's 
duties  and  the  Comptroller's  were  of  a  general 
political  character,  such  as  were  known  to  the 
public.  Scientific  attainments  were  not  general- 
ly known. 

Mr.  PERKINS  replied  that  the  Comptroller's 
duties  required  financial  talent,  those  of  the  At- 
torney General,  legal  talent  and  acquirement — 
and  both  were  as  much  matters  of  sience  as  en- 
gineering. Mr.  P.  went  on  to  urge  the  import- 
ance of  having  not  only  a  practical  and  profession- 
al engineer  to  revise  and  review  the  acts  of  sub- 
ordinates, but  to  have  him  a  sworn  officer  of  the 
government,  and  responsible  in  the  way  of  en- 
gineering. Hitherto  this  officer  had  been  a  mere 
hired  servant,  under  no  oath  of  office,  and  utterly 
irresponsible,  and  the  state,  under  the  erroneous 
estimates  of  such  men,  had  been  led  into  enor- 
mous expenditures.  As  to  the  salary  of  this  of- 
ficer, he,  Mr.  P.,  said  if  he  could  save  any  con- 
siderable portion  of  the  half  million  now  annually 
expended  in  canal  repairs,  he  did  not  care  a  pin 
whether  we  paid  the  officer  $1,000  or  $5000. 

The  Convention  then  adjourned. 

AFTERNOON  SESSION. 

As  soon  as  the  roll  was  called,  and  a  quorum 
found  to  be  present — 

Mr.  CHAMBERLAIN  said  that  the  statement 
made  by  the  gentleman  from  Genesee  (Mr.  RICH- 
MOND) relative  to  the  expense  of  the  Genesee 
Valley  Canal,  was  quite  inconect.  That  gentle- 
man had  placed  the  fiist  estimate  too  low,  and  the 
total  erst  much  too  high.  Most  certainly  the  ca- 
nal had  cost  more  than  the  estimate;  but  there 
were  very  good  and  satisfactory  reasons  fur  this  in- 
crease, which  could  be  shown  to  the  entire  satis- 


523 


faction  of  every  one  that  wa»  entirely  unprejudiced. 
And  he  would  further  state  that  much  ignorance 
ftvvailed  with  regard  to  the  cost  of  completing 
this  canal— f  1,300,000  would  he  all-sufficient,  in 
the  estimation  of  competent  and  candid  met). 

Mr.  MANN  enquired  what  was  the  pending 
question  before  the  house. 

The  PRESIDENT  said  it  was  upon  restoring 
the  2d  section  of  the  committee  No  6,  which  had 
been  stricken  out  in  committee  relative  to  the 
State  Engineer,  &c, 

Mr.  CHATFIELD— That  was  my  motion. 
The  PRESIDENT— The  gentleman  from  Chau- 
tauque  moved  to  amend  that  motion — he  propos- 
ed a  substitute  for  the  section.     The   question   is 
on  this  substitute. 

J\lr.  CROOKER  was  opposed  to  destroying  the 
section  It  had  been  stricken  out  after  a  full  and 
fair  discussion,  and  it  was  rather  too  much  like 
child's  play  to  be  undoing  one  day  what  was  done 
the  day  before.  The  design  of  "the  gentleman 
from  Otsego  (Mr.  CHATFIELD)  would  be  accom- 
plished by  inserting  either  of  the  words,  "En- 
gineer" or  "  Surveyor"  before  the  words  **  At- 
torney General"  in  the  first  section.  He 
was  favorably  disposed  towards  this  plan  ; 
He  would  consent  to  vote  for  such  an  officer,  but 
he  did  not  want  the  whole  of  a  ticket  taken  up  in 
reciting  his  titles.  Again  he  decidedly  objected 
to  the  limitation  in  the  original  section  ;  he  was 
opposed  to  the  doctrine  of  saying  that  no  man 
should  be  eligible  tathat  office  unless  he  had  been 
for  seven  years  engaged  in  the  occupation  of  a 
practical  Engineer.  You  might  with  the  very 
same  propriety  say  that  no  man  should  be  eligi- 
ble to  the  office  of  Attorney  General  of  the  State, 
unless  he  h;-d  been  for  seven  years  a  practical 
lawyer.  There  was  no  fear  but  that  the  people 
would  select  highly  competent  men  to  fill  all  the 
offices  in  their  gift. 

Mr.  STRONG :  Well,  what  objection  is  there 
to  a  man  being  required  to  be  a  lawyer  in  full 
practice  for  seven  years,  before  you  will  allow 
him  to  manage  the  duties  of  Attorney  General  of 
the  State.  I  look  upon  it  as  all  very  proper,  that 
we  should  have  this  qualification  required  ;  if 
we  always  did,  we  should  have  better  lawyers  by 
a  good  deal.  (Laughter.) 

Mr.  CROOKER  :  To  a  certain  extent,  the  qual- 
ification may  be  a  proper  one  ;  but  why  not  be 
consistent  in  this  business;  require  the  qualifica- 
tions from  all ;  make  this  apply  equally  and  all 
round  the  list. 

Mr.  LOOMIS  said  that  the  proposition  seemed 
now  to  come  before  the  Convention  in  a  new 
form  ;  he  did  not  like  the  aspe'ct  which  it  at  pre- 
sent seemed  to  assume.  On  yesterday  it  was  sta- 
ted that  by  this  section,  it  was  intended  to  retain 
the  office  of  Surveyor  General ;  and  with  the  view 
to  carry  out  that  idea  he  had  at  that  time  offered 
a  substitute  for  thesection,which  he  felt  satisfied 
would  accomplish  that  object.  Now,  to-day,  he 
understood  from  the  gentleman  from  Otsego  and 
other  friends  of  this  section,  that  this  officer  was 
not  to  be  a  substitute  ;  but  that  he  would  be  re- 
quired to  have  been  seven  years  a  practical  engi- 
neer, and  would  be  elected  and  retained  to  do  the 
engineering  on  the  public  works.  What  does  all 
this  mean  ?  What  do  gentleman  intend  by  the  re- 
insertion and  passage  of  this  section  ?  What  need 


have  we  for  any  such  officer  ?  Are  we  about  to 
start,  or  do  we  propose  shortly  to  start  on  a  new 
system  of  internal  improvements  ?  Is  this  but  the 
beginning  of  a  "  new  impulse,"  as  it  has  been 
called  ?  And  are  we  about  to  commence  an  en- 
tirely new  system  of  public  works  ?  For  this 
seemed  really  what  some  gentlemen  designed, — 
He  was  satisfied  that  the  almost  universal  res- 
ponse would  be  in  the  negative.  Again,  what 
duties  would  you  assign  to  this  officer  ?  Do  you 
propose  that  he  should  superintend  all  repairs  on 
your  canals,  enlargement  of  your  locks,  or  what- 
ever is  to  be  done  on  them  ?  Is  that  the  object  ? 
If  it  is,  then  I  ask  you  what  do  you  propose  to  do 
with  you  present  canal  commissioners  ?  But  if 
he  is  to  be  but  a  substitute  for  your  present  Chief 
Engineer,  then  it  is  only  a  question  as  to  the  way 
in  which  he  shall  be  appointed;  by  the  people 
direct,  or  by  them  through  the  Canal  Commis- 
sioners ?  But  there  is  no  necessity  for  any  such 
appointment.  The  present  Canal  Board — 
its  officers — are  fully  and  entirely  compe- 
tent to  discharge  any  and  every  duty  that 
may  properly  devolve  upon  them  as  connected 
with  your  canals;  or  that  might  fall  within  the 
service  ol  such  an  officer  as  you  propose  to  appoint. 
But  if  you  were  to  decide  on  having  such  an  officer 
as  has  been  here  spoken  of,  that  is  not  ihe  proper 
way  to  choose  him.  It  was  idle  t<>  say  or  to  sup- 
pose that  a  political  caucus  could  by  possibility 
know  what  scientific  men  there  were  in  this  state 
best  calculated  to  fill  such  an  office.  He  did  not 
believe  that  in  this  very  Convention,  v\ith  all  its 
knowledge,  its  128  members,  and  their  political 
knowledge  and  experience  in  public  matter? 
and  public  men,  there  were  over  twenty  or 
twenty-five  who  knew  the  name  of  the  present 
Chief  Engineer.  And  if  any  of  these  were  re- 
quired to  select  a  man  for  Chief  Engineer,  they 
would  not  rely  upon  their  own  knowledge  in  lela- 
tion  to  these  matters,  bui  they  would  refer  to  those 
who  were  competent  to  judge  ,  to  such  men  as 
the  distinguished  gentleman  from  Schoharie,  who 
from  long  experience  and  connection  with  the  ca- 
nals, would  l>e  better  qualified  to  judge  of  the 
merits  of  a  man  competent  to  fill  such  an  office. 
And  in  the  absence  of  all  other  information  upon 
this  subject,  you  would  be  not  merely  influenced, 
but  absolutely  governed,  in  relation  to  this  mat- 
ter. For  this  purpose  he  should  vote  to  have  the 
section  stricken  out. 

Mr.  CHATFIELD  repeated  that  it  was  not— 
it  had  not  been  his  intention,  or  the  intention  of 
this  section  to  abolish  the  office  of  Surveyor 
General;  he  desired  to  retain  it;  and  to  superadd 
to  it  the  duties  of  engineer.  Neither  was  he  at 
all  disposed  to  stand  in  the  attitude  in  which  the 
gentleman  from  Herkimer  (Mr.  LOOMIS)  had  at- 
tempted to  place  him,  of  having  in  view  the  com- 
mencement of  what  had  been  termed  a  "new  im- 
pulse"— the  beginning  of  a  new  system  of  public 
works. 

Mr.  LOOMIS  did  not  desire  to  place  the  gen- 
tleman from  Otsego  (Mr.  CHATFIELD)  in  that 
position;  but  he  merely  intended  by  what  he  said 
that  such  seemed  to  be  the  tendency  of  the  gen- 
tleman's proposition.  He  would  be  happy  to 
find  that  such  was  not  the  case. 

Mr.  CHATFlELD'said  that  the  gentleman  from 
Herkimer  (Mr.  LOOMI&)  had  very  gravely  en* 


524 


quired  if  this  step  was  to  be  the  commencement 
of  a  new  impulse  ?  and  that  question,  and  in  fact 
the  general  scope  of  his  remarks  did  amount  to  a 
direct  charge  that  such  was  the  intent  of  the  sec- 
tion which  he  desired  to  have  restored.  Now 
he  would  repel  any  and  every  such  imputation ; 
he  was  not  one  of  those  who  came  here  with  but 
a  solitary  idea  in  their  heads,  and  then  make 
every  act  of  theirs  in  this  Convention  square  with 
the  same.  Nor  was  he  prepared  to  suppose  that 
there  was  nothing  of  any  importance  to  the  state 
which  was  not  embraced  in  what  are  called  the 
"  People's  Resolutions."  He  was  here  for  other 
and  higher  purposes  than  merely  to  secure  the 
results  thus  contemplated.  And  he  would  not 
for  a  single  moment  tolerate  the  idea  that  seemed 
to  be  entertained  by  some  here  that  we  were  to 
frave  no  more  public  improvements  in  this  state, 
or  that  we  were  to  favor  such  a  declaration.  Do 
gentlemen  suppose  that  there  is  hereafter  never 
a  single  step  of  progress  to  be  made  in  regard  to 
the  improvement  of  our  present  public  works, 
and  no  new  ones  to  be  constructed  ?  So  far  from 
this  being  the  case,  he  was  confidently  looking 
forward  to  the  period  (and  that  not  far  distant) 
when  this  state  might  with  safety — a  time  beyond 
doubt  or  peril — when  the  state  should  resume 
that  policy  which  had  been  her  crowning  glory ; 
when  we  might  without  danger  go  forward  in 
the  great  work  of  internal  improvement.  He 
would  go  as  far  as  the  gentleman  from  Herkimer 
(Mr.  LOOMIS)  or  his  colleague  (Mr.  HOFFMAN) 
to  place  the  finances  of  the  state  on  a  safe  and  se- 
cure basis  and  also  to  make  ample  provision  for 
the  public  debt.  But  having  done  this  he  was 
not  bound  to  stop  there,— to  stand  still  and  fold- 
ing his  arms,  say  that  his  work  was  done.  So 
had  he  not  learned  his  duty  to  the  people.  It 
seemed  to  be  the  opposite  idea,  that  influenced 
the  gentleman  from  Herkimer,  who  asks,  with 
peculiar  emphasis,  if  this  is  the  beginning  of  a 
"  new  impulse  ?"  and  says  that  now  was  the  time 
when  an  officer  of  this  kind  may  be  dispensed 
with — that  there  was  no  longer  a  necessity  for 
such  an  one.  He  a.sked  if  the  canal  commission- 
ers had  not  retained  in  their  employment  such 
an  officer  ?  The  fact  that  they  had  done  so,  was 
proof,  that  they  believed  there  was  a  necessity 
for  such  an  agent.  The  commissioners  were  not 
practically  acquainted  with  the  scientific  knowl- 
edge necessary  for  a  proper  discharge  of  the  du- 
ties of  such  an  officer,  and  for  this  reason  they 
had  retained  the  services  of  a  scientific  man.  He 
thought  there  was  as  much  safety  in  electing  this 
officer  at  a  popular  election,  as  in  electing  a 
Governor  in  the  same  way.  The'  principle  of 
popular  election  had  been  applied  to  the  State  of- 
ficers heretofore  appointed  by  the  legislature  and 
the  Governor ;  and  the  gentleman  from  Herki- 
mer would  not  dare  to  oppose  that.  Why  should 
they  not  be  consistent,  and  apply  this  principle 
to  all  ?  There  was  no  good  reason  why  they 
should  not. 

Mr.  E.  HUNTING  1'ON  said  that  it  did  seem  to 
him  that  gentlemen  were  fighting  not  a  little  at 
cross  purposes  in  this  matter.  Now  if  the  com- 
mittee desuecl  10  break  up  the  gieat  cen'ral  pc.w- 
er  at  present  in  the  hands  of  the  Comptroller — if 
it  was  intended  he  shall  no  longer,  as  the  geriili- 
man  from  Chau'auque  (Mr.  PATTERSON,)  and  the 


gentleman  from  Chenango  (Mr.  SMITH,)  said  ihe 
ether  day,  hold  the  Canals  in  one  arm,  and  the 
Banks  in  the  other,  and  the  public  Treasury  in 
his  pocket;  if  they  intended  to  erect  a  department 
of  public  works  at  the  head  of  whfch  should  he 
an  officer  upon  whom  should  devolve  the  duty  of 
the  Surveyor  General,  he  would  not  interpose;  the 
least  objection  to  \h\sprojet;  hut  if  gentlemen  in- 
tended that  this  Chief  Engineer  shall  have  the 
actual  charge  and  custody  of  all  the  public  works 
of  this  State,  that  he  shall  exercise  his  skill  in 
designing,  in  deciding  upon  what  are  necessary, 
and  directing  the  works  at  present  in  progress,  or 
the  necessary  repairs  to  the  State  works  alrea- 
dy completed  -if  the  services  of  this  ofnciT 
were  actually  and  bona  fide  to  be  I  hose  of  a 
Chief  Engineer,  then  he  for  one  must  enter  his 
protest  against  it,  for  the  reasons  which  he  stated, 
and  therefore  he  would  not  take  up  the  time  of 
the  committee  (as  many  had  done)  by  repeating 
them.  As  far  as  he  was  able  to  judge,  notwith- 
standing what  the  gentleman  from  Otsego  had 
said,  (Mr.  CHATFIELD,)  it  was  idle  to  imagine 
that  by  the  mode  proposed  in  this  section,  that 
you  could  obtain  a  competent  Engineer,  who 
could  upon  such  services  be  called  into  requisi- 
tion, perform  the  duties  of  a  scientific  and  skil- 
ful man.  For  these  reasons,  he  did  not  want  to 
see  the  section  restored;  but  if  the  convention 
desired  to  organize  a  new  department  of  govern- 
ment, (such  as  he  had  alluded  to)  they  should 
draft  a  proper  section  to  effect  that  object,  and  in 
connection  with  this,  call  thar  officer  by  his  pro- 
per name ;  he  always  liked  to  see  things  called 
by  their  right  names ;  and  that  of  Chief  Engineer 
was  not  at  all  suited  to  the  duties  required  of  this 
officer  to  perform,  if  he  was  chosen.  He  sincere- 
ly hoped  therefore  that  those  who  were  in  favor 
of  the  proposition  first  indicated,  would  not  vote 
to  restore ;  then  those  who  thought  with  him  (Mr. 
H.)  in  the  main,  might  by  and  by  move  another 
section,  having  proper  provisions  and  also  a  pro- 
per name  for  the  officer  and  the  office. 

Mr.  TILDEN  desired  to  know  what  were  to 
be  the  powers  and  duties  of  the  office  proposed  to 
be  created.  If  the  object  were  to  retain  the  sur- 
veyor general,  under  an  altered  name,  and  with 
such  additional  and  not  incompatible  duties  as 
the  Legislature  may  assign,  he  had  no  objection. 
That  office  might  be  abolished,  and  its  functions- 
performed  by  a  bureau  in  one  of  the  departments ; 
and  he  did  not  think  they  would  be  performed 
much  more  economicaly,  and  he  conceded  that 
there  was  force  in  the  considerations  presented 
by  his  friend  from  Otsego  (Mr.  CHATFIELD)  in 
in  favor  of  retaining  the  Surveyor  General  as  a 
member  of  the  Canal  Board.  But  he  had  not 
been  able  to  gather  from  the  debate  such 
a  definite  idea  of  the  purpose  of  this  officer  as  to 
induce  him  to  vote  for  its  restoration.  Was  this 
officer  to  be  superior  to  the  Canal  Board  and  the 
Canal  Commissioners  ?  He  argued  that  it  would 
be  an  unnecessary  measure,  and  unsafe  concen- 
tration of  power.  Was  lie  to  perform  the  ordina- 
ry duties  of  the  chief  engineer?  He  (Mr.  T.) 
doubted  whether  those  duties  would  be  compat- 
ible with  the  others  which  as  Surveyor  General 
and  a  member  of  the  Canal  Board  he  would  have 
to  discharge;  and  he  pointed  out  other  objections 
to  the  proposed  change,  as  respects  the  business 


525 


of  the  chief  engineer.  Was  this  officer  to  super- 
cede  the  present  head  of  the  Canal  Department  ? 
He  did  not  understand  his  friend  from  Otsego  or 
the  committee  to  design  any  such  thing.  He  did 
not  suppose  the  Convention  inclined  to  adopt  any 
such  proposition.  What  were  the  functionaries  of 
the  chief  clerk  of  the  Canal  Department?  To  ad- 
minister ihe  fiscal  a  flairs  of  canals — tosuperintend 
their  collections  and  disbursements — keep  their  ac- 
counts and  records  ;  in  a  word,  to  perfoim  the  du- 
ties of  the  comptroller  as  respects  the  canals. — 
Certainly  you  do  not  want  an  engineer  to  transact 
such  business;  and,  if  this  office  were  intended 
for  such  a  purpose,  the  requirement  that  he  shall 
be  a  "  practical  engineer,"  would  be  absurd. — 
Mr.  T.  alluded  to  a  remark  of  the  gentleman  from 
Oneida,  that  the  Comptroller  held  the  canals  in 
one  hand  and  the  banks  in  the  other  ;  and  read 
from  the  laws  to  show  that  by  an  act  drawn  by 
Mr.  J.  C.  Spencer,  in  1840,  the  Canal  Depart- 
ment had  been  separated  from  the  Comptroller's 
office,  and  that  the  Chief  Clerk  was  appointed  by, 
and  responsible  to,  the  Canal  Board.  He  con- 
cluded by  repeating  that  he  had  no  objection  to 
restoring  the  office  of  Surveyor  General :  and  gen- 
tlemen seemed  to  disavow  the  various  other  ob- 
jects which  have  been  suggested  as  reasons  for 
adopting  the  amendment ;  but  he  was  not  inclined 
to  vote  for  the  proposition  until  it  assumed  a  more 
tangible  shape. 

Mr.  STKUJNG  was  struck  with  surprise  by  the 
course  of  the  gentleman  (roin  Herkirner  (Mr. 
LOOMIS.)  Yesterday  he  had  proposed  an  amend 
merit  changing  the  name  of  the  officer  named  in 
this  seciion  {<>  a  Commissioner  of  the  Public 
Works,  and  saui  if  the  gentleman  from  Otsego 
(Mi.  CHATFIEL.D)  would  consent  to  adopt  it,  iu- 
would  vote  for  the  section.  To  day,  however,  a 
great  change  had  came  over  his  rmnd.  He  had 
discovered  a  great  secret  lurking  under  this  sec- 
tion, and  the  word  engineer  sounds  strangely  and 
harshly  in  his  ear.  He  sees  in  this  the  cotnmenc- 
nient  of  a  new  era  in  relation  to  our  public  works, 
and  this  engineer  is  to  be  the  great  entering 
wedge.  This  fact  he  has  just  discovered.  He 
says  that  such  a  project  as  the  resumption  of  the 
public  works  would  meet  with  an.  univeisal  res- 
ponse in  this  Convenlion  against  it. 

AJr.  LOOMIS  had  only  alluded  to  new  projects 
of  public  improvements. 

Mr.  STRONG  had  taken  down  his  words  as 
they  fell  from  his  lips,  and  could  not  be  contradict- 
ed. The  gentleman  asked,  "  are  we  to  commence 
a  new  system  of  public  works?  I  trust  that  there 
will  be  but  one  universal  response  against  it  in 
thin  Convention."  Gentlemen  did  riot  always 
know  what  they  did  say.  In  regard  to  that  ques- 
tion, he  could  inform  the  gentleman  that  there 
was  a  county  or  two  beyond  old  Herkiiner,  who 
had  not  received  the  benefit  of  the  enlaigement 
of  the  Erie  Canal,  as  that  county  had,  and  who 
would  not  be  satisfied  that  it  should  go  no  further 
But  this  was  not  the  first  attempt  of  the  gentle 
man  to  wed  this  Convention  to  the  repoit  which 
had  just  been  received  from  his  colleague  (Mrt 
HOFFMAN  )  He  would  not  pretend  to  predic. 
that  I  ht  Convention  would  not  ado}  t  that  report 
just  as  it  was  reported  ;  but  be  could  inform  tren- 
tlemen  that  there  would  be  far  lioai  '^universal 
response  in  its  favor.  It  wa»  tot  in  order  lo  allude 


to  this  subject  at  tins  time,  but  he  knew  tliat  the 
western  counties  never  would  submit  that  they 
should  be  deprived  of  the  benefits  of  the  enlarge- 
ment, alter  it  had  been  made  through  t.'ie  gentle- 
man's county — they  would  claim  to  have  a  voice 
in  this  matter;  and  that  voice  would  be  against 
their  selfish  policy.  Gentlemen  hud  objected  to 
adopting  this  section  from  one  reason  and  anoth- 
er ;  some,  because  he  was  to  be  a  practical  engi- 
neer. Would  not  gentlemen  have  the  Attorney. 
General  a  practical  lawyer  ?  or  would  they  be  sat  is- 
fied  that  the  thiity-six  judges  to  be  elected  under 
the  new  Consti'ution  should  be  laymen?  He 
oould  not  suppose  that  it  would  be  a  good  objec- 
tion to  the  new  system  that  they  were  to  be  select^ 
ed  Irom  among  the  w:iscst  and  soundest  lawyers  in 
the  State.  These  objections  raised  here  seemed 
to  him  to  be  entirely  frivolous,  ana  designed  to 
furnish  an  excuse  for  voting  against  the  section. 

Mr.  KEMBLE  thought!  here  was  a  good  deal  of 
misapprehension  on  this  .subject,  and  as  one  of  the 
members  ol  the  committee  he  felt  it  to  be  his  duty 
to  explain  the  circumstanced  under  which  the  sec- 
tion was  reported  The  committee,  in  the  perior- 
mance  of  their  duty  and  in  examining  the  differ- 
ent offices  which  came  within  their  scope  ot  ac- 
tion, found  two  offices — that  of  Engineer  in  chief 
employed  bv  the  Canal  Commissioners,  v\ith  a 
salary  of  $2000,  and  that  of  Surveyor  General, 
which  had  once  been  an  office,  ot  great  consequence, 
but  which  had  been  icduced  in  importance  and  in 
salary  until  it  now  stood  at  about  $  1 000— m  a  king 
JJj<3i/00  for  the  two  offices.  The  committee,  look- 
ing at  the  importance  of  throwing  the  two  offices 
together,  thought  it  necessary  to  destroy  that  of 
Surveyor  General,  but  considered  it  of  great 
importance  that  the  office  of  Engineer  should 
be  elevated  in  character  and  be  brought  neater 
to  the  people.  This  officer  was  very  ne- 
cessary to  the  Canal  Commissioners,  because 
they  were  constantly  obliged  to  apply  to  him 
in  relation  to  their  votes  in  the  Canal  Board, 
and  in  their  reports  to  the  legislature,  he  furnish- 
ed all  the  estimates.  It  was  therefore  thought 
best  to  elevate  him  to  a  seat  in  the  Canal  Board, 
so  that  he  should  be  personally  responsible  for 
his  acts,  and  in  making  reports,  he  would  make 
them  upon  his  own  responsibility.  The  canal 
commissioners,  not  being  engineers,  would  not 
assume  responsibility  for  the  estimates  presented 
in  their  reports,  but  fell  back  upon  their  subordi- 
nate officer,  the  Engineer-in-Chief.  The  people 
of  the  State  had  been  losers  to  the  amount  of  mil- 
lions of  money  on  this  account, — because  there 
was  no  one  to  take  the  responsibility  of  their  re- 
ports. If  the  committee  had  erred  in  regard  to 
this  matter,  they  had  erred  unanimously  ;  for  this 
was  the  only  point  in  which  they  did  all  concur. 

Mr.TILDEN  enquired  if  the  gentleman  thought 
the  duties  of  Surveyor  General,  and  of  an  engi- 
neer compatible. 

Mr.  KEMBLE:  Certainly  compatible.  Not 
only  that,  but  the  person  competent  to  perform 
the  duties  of  engineer-in-chief,  is  fully  compe- 
tent to  perform  the  duties  of  Surveyor  Geiieral.fij 

Mr.  LOOMIS  inquired  if  it  was  intended  to 
have  the  Canal  Department  under  the  charge  of 
this  officer  ? 

Mr.  KEMBLE :  Not  by  any  means.  We  pro- 
pose to  elevate  him  from  a  mere  subordinate  to  a 


526 


seat  in  the  Canal  Board  and  on  an  equality  with 
the  other  members  of  it,  so  as  to  make  him  per- 
sonally responsible  and  nothing  more.  We 
merely  place  him  in  the  Canal  Board,  leaving  it 
to  the  Legislature  to  direct  hereafter  what  shall 
be  his  specific  duties. 

Mr.  STETSON  said  that  if  he  understood  the 
gentleman  from  Putnam,  he  has  said  substantially 
that  it  was  the  intention  of  the  committee  that 
this  new  officer  should  enable  the  Canal  Commis- 
sioners to  make  better  estimates.  Would  it  give 
to  them  a  greater  degree  of  intelligence  or  enable 
them  to  do  it  better  than  heretofore  ? 

Mr.  KEMBLE  said  that  the  intention  was  to 
create  an  officer  responsible  for  the  information. 

Mr.  STETSON  made  the  enquiry  because  he 
understood  that  this  officer  was  not  to  perform 

Eractical  field  service.  Without  this,  he  Mr.  S. 
ad  been  informed  by  a  distinguished  gentleman 
formerly  of  the  Canal  commission,  the  officer 
could  not  give  to  the  Commissioners  reliable  ad- 
vice or  information.  It  would  be  far  better  to 
require  one  of  the  £anal  Commissioners  who 
travelled  along  the  line  to  be  a  practical  engin- 
eer. 

Mr.  KEMBLE  said  this  engineer  was  to  have 
the  superintendence  over  all  estimates  coming 
into  the  Board  of  Canal  Commissioners.  And 
also  to  allow  his  travelling  expenses  to  be  paid, 
with  a  view  to  permit  no  estimate  to  come  before 
the  legislature,  without  his  having  himself  been 
upon  the  ground  and  examined  for  himself,  and 
assumed  the  whole  responsibility  of  that  esti- 
mate. 

Mr.  STETSON  :  To  perform  practical  duty  on 
the  ground  himself? 

Mr.  KEMBLE  :  To  go  upon  the  ground  him- 
self. His  duties  in  Albany  would  be  in  the  win- 
ter, and  in  the  summer,  when  estimates  are  al- 
ways made,  he  would  have  it  in  his  power  to  su- 
perintend the  operations  of  his  subordinates.  We 
should  thus  have  a  man  of  high  character  to  be 
responsible  for  these  estimates,  and  had  we  had 
such  a  man  twenty  years  ago,  twenty  millions  of 
dollars  would  have  been  saved  to  the  State. 

Mr.  T1LDEN  :  Who  shall  decide  when  doc- 
tors disagree  ?  His  friend  from  Putnam,  (Mr. 
KEMBLE,)  for  whom  he  had  great  respect,  had 
said  that  the  functions  of  these  two  offipers  could 
be  united  in  one  person.  His  friend  from  Onei- 
da,  (Mr.  HUNTING-TON,)  who  had  had  some  ex- 
perience in  this  matter  of  engineering,  thoughl 
differently.  Mr.  T.  said  that  he  was  not  one  of 
those  who  supposed  that  if  we  had  had  one  or 
more  practical  engineers  in  the  canal  depart- 
ment, that  we  should  have  saved  much  of  the 
public  money.  The  Chief  Engineer  would  be  li- 
able also  to  make  erroneous  estimates  in  relation 
to  the  public  works,  and  the  Canal  Board  woulc 
not  therefore  acquire  any  more  certain  knowledge 
on  the  subject. 

The  question  being  taken,  the  motion  to  re- 
store the  section  providing  for  a  State  Engineei 
was  agreed  to — ayes  73,  noes  26,  as  follows  : 

AYES— Messrs.  y\ngel,  Archer,  Ayrault.  F.  F.  Backus 
H.  backus,  Bowdish,  Bi  uce,  Brundage,  Cambreleng.Cham 
berlain,  Chatfield,  Clyde,  Cook,  Cornell,  Dana,  Uanfbrth 
Dodd,  Dorlon,  Uebhard,  Graham,  Harris,  Harrison,  Hart 
Hawley,  Hunter,  A.  Hutington,  Hyde,  Jordan,  Kemble 
Kernan,  Kingsley,  Kirkland,  Mann,  McNeil,  McNitt,  Mar 
vm,  Maxwell,  Miller,  Morris,  Nellrs,  Nelson,  Nicholas 


'arish,  Patterson,  Porter,  President,  Rhoades,  Riker,  Rug- 
;les,  St.  John,  Salisbury,  Santbni,  Sears,  Shaw,  Sheldon, 
ihrpard,  Smith,  E.  Spencer,  Stanton,  Stephens,  Stow, 
Strong,  Taft,  Tallmadge,  White,  Willard,  Witbeck,  Wor- 
len,  A.  Wright,  Yawger,  Young,  Youngs— 73. 

"NOES— Messrs  Bascom,  Bergen,  Bouck.  Brayton,  Burr, 
D.D.Campbell,  R.  Campbell,  jr.,  Candee,  Clark.  Conely, 
looker,  Cuddeback,  Flanders,  Hotchkiss,  E.  Huntington, 
^oomis,  O'Conor,  Powers,  Richmond,  Stetson,  Tilden, 
Townsend,  Tuthill,  Vache,  Waterbury,  Wood — 26. 

Mr.  BERGEN  moved  to  amend  the  second  sec- 
ion  by  striking  out  the  provision  fixing  the  com- 
>ensation  of  the  officers.  He  saw  no  reason  why 
he  salary  of  this  officer  should  be  more  than 
>thers. 

This  was  carried. 

Mr.  TILDEN  moved  to  strike  out  the  provision 
•equiring  a  practical  engineer. 

Mr.  NICHOLAS  hoped  the  motion  would  not 
prevail.  The  words  could  do  no  harm,  and  the 
>bject  of  the  insertion  was  to  indicate  the  inten- 
ion  of  the  convention  that  a  scientific  Engineer 
alone  should  be  selected  for  this  orffice.  Mr.  N., 
at  some  length,  then  went  on  to  Oppose  the  mo- 
ion  to  strike  out. 

Mr.  CROOKER  desired  to  leave  the  people  free 
and  unshackled  in  their  choice,  and  also  objected 
to  the  provision  because  it  meant  nothing.  There 
was  not  a  town  surveyor  but  could  come  forward 
and  claim  to  be  a  practical  engineer.  All  he  de- 
sired was  to  see  the  office  of  Surveyor  General 
retained. 

Mr.  RICHMOND  said  there  had  been  several 
speeches  on  the  one  side,  and  it  was  high  time  to 
lave  another  on  the  other  side. 

SEVERAL:  You  have  had]  four  speeches 
yourself  already. 

Mr.  RICHMOND  went  on  to  make  a  speech 
on  the  other  side. 

Mr.  RHOADES  briefly  replied. 

The  question  being  taken  on  Mr.  TILDEN'S  mo- 
tion it  was  rejected — ayes  30,  nays  65. 

Mr.  KIRKLAND  proposed  to  amend  so  that 
the  section  would  read,the  Surveyor  General  shall 
also  be  state  engineer.  This  would  retain  the 
name  of  the  old  officer  and  merely  add  to  his  du- 
ties. 

The  amendment  was  lost — ayes  40,  nays  40. 

The  Convention  then  adjourned. 

THURSDAY,  (55th  day,)  August  6. 

Prayer  by  the  Rev.  Mr.  MILES. 

Mr.  BRAYTON  presented  the  remonstrance  of 
the  trustees  of  the  Jefferson  county  Institute  a- 
gainst  the  proposed  diversion  of  the  Literature 
Fund. 

Mr.  HOTCHKISS  presented  the  petition  of 
citizens  of  Warren  county  for  the  establishment  of 
free  schools. 

Mr.  WORDEN  presented  the  remonstrance  of 
the  annual  conference  of  the  Methodist  Episco- 
pal church  at  Oneida  against  the  proposed  diver- 
sion of  the  Literature  fund. 

Mr.  WORDEN  desired  to  have  this  printed. 

Mr.  WILLARD  hoped  not.  He  was  opposed 
to  any  of  this  Sectarianism.. 

Mr.  MANN  also  opposed  the  printing  unless 
every  other  one  was  printed. 

Mr.  RICHMOND  also  opposed  this. 

Mr.  WORDEN  withdrew  the  motion  to   print. 

Mr.  H.  BACKUSjpresented  a  remonstrance 
from  the  Trustees  oWie  Brockport  Literary  In- 


527 


stitute,  Monroe    county,   on  the   same    subject, 
which  was  referred  to  the  same  committee. 

STATE  OFFICERS. 

Mr.  KIRKLAND,  at  the  request  of  many  mem- 
bers, moved  a  reconsideration  of  the  vote  taken 
yesterday  rejecting  his  amendment  to  section 
number  two  of  the  report  of  committee  number 
six,  in  relation  to  the  state  engineer,  as  follows  : 
'•  The  surveyor  general  shall  be  state  engineer  and  sur- 
veyor." 

Mr.  STRONG  moved  to  lay  this  motion  on  the 
table.  Agreed  to,  Ayes  46,  noes  26. 

Mr.  F.  F.  BACKUS  moved,  by  consent,  the  fol- 
lowing : 

Resolved,  That  hereafter  the  reports  of  the  several  com- 
mittees he  considered  in  the  Convention  and  not  in  com- 
mittee of  the  whole. 

Mr.  HOFFMAN  hoped  that  this  resolution 
would  be  referred  to  the  committee  on  rules. 

Mr.  BACKUS  hoped  this  would  not  be  so  re- 
ferred. We  all  understand  this  matter  now.  We 
can  get  no  information  from  the  committee  on 
rules. 

Mr.  BURR  hoped  the  resolution  would  be 
adopted.  In  committee  of  the  whole  they  barely 
had  a  quorum.  They  sat  there  day  after  day  hear- 
ing the  same  arguments  ;  and  they  frequently  re- 
versed the  votes  given  in  committee  one  day, 
when  they  got  into  the  House  the  next. 

Mr.  WORDEN  said  that  we  thus  had  a  double 
consideration  of  every  subject. 

Mr.  COOK  said  that  we  were  continually  hav- 
ing a  continuation  and  repetition  of  the  speeches 
of  members.  We  had  got  through  three  reports 
and  we  had  61  working  days  left  to  dispose  of  the 
other  fifteen,  yver.  if  we  sat  till  the  15th  of  Octo- 
ber, or  four  days  for  each  report. 

Mr.    RICHMOND  said   the  gentleman   (Mr. 
COOK)   was  celebrated  for   moving  the  previous 
question  after  all  the  talk  had   been  on  one  side. 
Mr.  COOK  said  he  had  never  done  so. 
Mr.   RICHMOND:     Oh,   no,  it  is  the  gentle- 
man from  Washington.     [Laughter.] 

Mr.  HOFFMAN  wanted  the  benefit  of  having 
members  in  committee  of  the  whole;   he  regretted 
that  to  think  without  thinking  and  conclude  with- 
out reasoning,  was  to  be  pushed  further.     He  re- 
inded  the  Convention  of  what  had  been  done  at 
e  commencement  of  the  session,  when  instead  of 
ing  into  committee  of  the  whole  on  the  Consti- 
tion,  the  various  subjects  were  referred  to  eight- 
n  standing  committees.     He  thought  the  Con- 
ention  had  made  a  mistake  at  the  outset,  and  he 
,w   not  how   anything  was  to  be  gained  by  the 
course  suggested,  as  motions  to  recommit  with  in 
•^ructions,  and  debate  thereon  would  be  inevita- 
e. 

Mr.  F.  F.  BACKUS  thought  all  this  delay  was 
le  and  worse  than  idle.  We  have  the  same 
iresome  and  ledious  speeches  over  and  over  again, 
without  any  new  ideas;  it  is  a  horrible  waste  of 
time;  there  is  seldom  a  quorum  in  committee;  it 
is  a  great  waste;  men's  minds  are  made  up  ;  and 
the  whole  matter  UPS  in  a  nu'shell. 

Mr.  WATERBURY  was  of  the  same  opinion. 
Mr.  MANN  hoped  no  more  lime  would  be  lost 
on  this. 

The  resolution  was  referred  to  the  committee 
on  rules — 53  to  22. 

KMr.  St.  JOHN  offered  the  following-— 


Resolved,  That  no  member  shall  he  permitted  to  speak 
more  th-.in  ten  minutes  in  Convention,  on  any  question 
which  may  have  been  previously  discussed  in  committee       -s 
of  the  whole. 

Mr.  CROCKER  suggested  that  in  addition  no 
gentleman  should  be  permitted  to  speak  more  than 
once — as  yesterday  they  had  four  speeches  each 
from  two  gentleman,  who  had  each  spoken  in 
committee  of  the  whole. 

Mr.  WHITE  called  for  the  yeas  and  nays,  and 
the  resolution  was  lost — yeas  41,  nays  64. 
THE  ORDER  OF  BUSINESS. 

Mr.  RUGGLES  said  that  he  had  voted  in  op- 
position to  the  resolution,  not  because  he  was  not 
anxious  to  expedite  the  business  of  the   Conven- 
tion, but  because  it  was  in  substance   one  which 
the  Convention  had  heretofore  adopted  and  after- 
wards rescinded ;  but  it  had  now  become  evident 
hat  something   must  be   done  to  facilitate  busi- 
less.     It  was  evident  that  much  business  which 
lad  been  contemplated    must  be  left  untouched, 
icnce  the  importance    of  taking  up  those  promi- 
nent subjects  which  must  be  considered.       It  is 
impossible  that  all  the  business   can  be  done  in 
he  time  left  to  the  Convention.       With   these 
views   he    called   for    the  consideration   of  Mr. 
LOOMIS'  report  on  the  order  of  business. 

Mr.  RUGGLES  then  moved  to  n,ake  No.  6  (t,ie 
Judiciary)  stand  No.  3;  oi  the  next  m  order. 

Mr.  MILLER  asked  why  the  repoit  was  not  on 
he  table. 

Mr.  RUGGLES  said  it  was  owing  to  the  great 
and  repeated  delays  of  the  printer.  He  had  been 
requested  by  many  members  10  move  to  take  np 
,he  judiciary  Report  at  an  early  d;iy. 

Mr.  JORDAN  said  they  had  goi  through  with 
3  reports,  the  executive,  legislative  and  the  go- 
vernment officers.  The  mxt  in  older  was  the  ju. 
diciaiy.  It  was  evident  that  all  the  18  reports 
rum  standing  committees  could  riot  be  considered 
n  the  time  allowed  to  them.  Gentlemen  were 
disposed  to  consider  every  question  gravely,  bo'h 
in  committee  arid  in  Convention,  and  he  should 
like  to  know  -\here  the)  were  .to  land  on  the  1st 
N'.vembt.-r  next.  He  had  not  heaul  this  even  from 
the  gentleman  iroin  Herkimer.  It  was  important 
,hat  i. hey  should  first  dispo  e  of  those  piominent 
questions  which  had  ui  ought  I  hem  together,  and 
it  they  had  then  any  tune  to  spare  to  liaiue.  the 
fancy  pan  of  the  Constitution,  they  rniijhi  do  so 
alter  disusing  ol  the  substantial.  He  hof  ed  also 
that  when  they  took  up  i  his  judicial  department 
gentlemen  would  be  lound  in  their  seais.  He 
hoped  the  gentleman  from  H« rkiriier  (M'.  HOFF- 
MAN) would  neglect  his  business  at  New  Yoik  lor 
a  nine,  and  give  them  his  attention  in  the  Conven- 
tion on  :his  important  question. 

Mr.  HOFFMAN  said  that  he,  in  some  respects, 
agreed  with  Mr.  JORDAN,  but  disagreed  with  the 
premises  which  he  had  assumed.  He  differed 
with  him  in  the  opinion  that  the  chief  question 
which  led  to  the  calling  of  the  Convention,  was 
the  reorganization  of  the  judiciary.  It  was  the 
subject  of  relieving  the  Legislature  of  the  State 
fiom  the  mass  of  local  matters  which  weighed 
them  down.  The  reorganization  of  the  judiciary 
was  a  new  question — a  question  of  yesterday  — 
The  mass  of  business  which  encumbered  the  courts 
of  the  State  was  accumulated  because  we  had  no 
Legislature  to  make  laws,  but  was  taken  up  with 
mere  administrative  matters.  The  gentleman  from 


528 


Columbia  (Mr.  JORDAN)  had  said  that  the  great 
question  of  the  finances  of  the  State  must  be  de 
layed  until  the  judicial  department  is  settled,  be 
cause  if  once  we  get  into  that  entangling  subject 
we  shall  never  get  away  from  it.  He  (Mr.  H  ) 
said  this  question  of  the  debt  and  finances  of  the 
State  was  one  of  the  principal  questions  which  we 
were  to  settle.  Were  it  not  for  the  fact  that  we 
had  a  debt  hanging  over  us,  and  which  threatened 
to  accumulate,  this  Convention  would  never  have 
been  called  together.  And  would  gentlemen  say 
that  we  s-hould  delay  the  subj  -ct  which  we  were 
called  particularly  to  consider,  until  there  was  no 
time  left  to  consider  it  properly?  He  (Mr.  H.) 
hoped  that  the  subject  of  banks  and  incorporations 
would  be  first  taken  up,  as  one  of  the  matters  which 
must  be  swept  away  from  the  legislation  of  the 
State.  Next,  he  hoped,  would  be  the  great  sub- 
ject ot  the  debt  and  finances,  which  must  here 
settle  forevei  the  great  quarrel  which  exists  in  re- 
gard to  it.  He  was  not  behind  the  gentleman  from 
Columbia  in  desiring  n  good  judicial  system,  and 
he  hoped  that  next  in  order  would  be  the  distrac. 
ted  reports  from  the  judiciary  committee;  and  he 
believed  we  should  be  able  to  settle  the  differences 
which  prevailed  in  (hat  committee.  He  intended 
to  be  present  when  that  report  was  taken  up,  as 
the  gentleman  from  Columbia  had  had  the  kind- 
nes*  to  hope.  It  may  be  necessary  for  him  some- 
times to  be  absent  from  this  body,  both  by  reason 
of  other  duties,  and  becau-e  ot  sickness  in  his 
family — a  circumstance  which  had  prevented  his 
attendance  for  a  few  days  past. 

Mr.  TALLM ADGE  said  they  were  spending  a 
whole  day  again  in  discussing  questions  of  order. 

Mr.  RICHMOND  wanted  the  Judiciary  report 
taken  up  first. 

Mr.  STETSON  wanted  the  finances  considered 

Mr.  RHOADES  said  the  whole  day  was  thus 
lost,  and  he  moved  to  lay  the  whole  matter  on  the 
table.  Lost — ayes  18,  noes  79. 

Mr.  STEPHENS  considered  the  motion  made 
by  the  gentleman  from  Dutchess  as  one  of  the 
most  important  which  had  come  up.  Not  his 
motion  of  amendment  particularly,  but  the  ques- 
tion of  settling  the  order  of  business.  He  did  not 
believe  with  gentlemen  that  we  had  ample  time 
to  settle  every  question  which  had  been  present- 
ed for  our  consideration.  He  had  no  experience 
in  parliamentary 'business,  but  he  could  judge 
something  of  this  matter  from  the  view  he  was 
able  to  take  of  it,  and  was  satisfied  that  unless 
some  system  was  agreed  upon,  we  must  break  up 
without  effecting  the  business  for  the  settlement 
of  which  we  were  sent  here ;  and  we  should  go 
home  to  our  constituents  with  discredit.  He 
agreed  with  the  gentleman  from  Herkimer  that 
there  were  three  or  four  subjects  which  should  be 
decided,  and  he  hoped  an  arrangement  would  be 
made  to  take  them  in  proper  order. 

Mr.  WORDEN  said  they  must  do  away  with 
long  speeches.  He  moved  to  postpone  the  matter 
till  this  day  week. 

Mr.  CAMBRELENGsaid  they  must  have  some 
settled  order  of  business.  But  he  did  not  think 
the  judiciary  report  ought  to  be  taken  up  first. 

Mr.  K1RKLAND  denied  that  there  was  so  great 
a  disunion  among  the  members  of  the  judiciary 
committee  as  indicated  by  Mr.  WORDEN.  Almost 


i\,.  t-amp- 
;1,  Cudde. 
an,  Hunt, 
lis,  Mann, 


with  entire  unanimity  had  the  committee  agreed 
upon  some  most  important  features.  They  had 
almost  unanimously  concurred  in  the  union  of 
.aw  and  chancery  jurisdiction.  And  also,  to 
provide  that  cause*  shall  be  tried  in  the  both  ca- 
ses under  the  same  forms.  This  alone  would 
save  an  immense  expense  to  the  State.  Mr.  K. 
urged  that  this  judicary  question  was  one  which 
excited  more  general  public  attention  than  any 
other  question  here.  It  might  be  too  soon  to 
:ake  up  the  report  of  the  judicary  to  take  it  up 
'mmediately,  but  he  suggested  that  one  weeks' 
:ime  would  be  fully  sufficient  delay.  He  moved 
therefore  to  make  this  report  the  order  for  Thurs- 
day next.  The  Convention  would  then  at  last 
^et  to  work  at  some  of  its  important  objects. 

Mr.  MANN  was  opposed  to  the  judiciary  re- 
port taking  precedence  of  the  financial  report. 
He  should,  therefore  vote  against  the  proposition. 

Mr.  STETSON  called  for  the  ayes  and  nays, 
as  he  considered  this  a  most  important  question, 
and  the  motion  prevailed,  ayes  58,  nays  46,  as  fol- 
.ows : — 

AYES— Messrs.  Archer,  Ayrault,  F  .Backus,  H  Backus, 
Baker,  fiasco  n,  Bergen,  Bouck,  Bowdish,  Brown,  Bruce, 
Burr,  D.  L).  Campbell,  Candee,Chamberlain,  Cook,  Crook- 
er,  Dana,  Dodd  Dorlon,  Graham,  Harris,  Hawley,  Hotrh. 
iiss,  K.  Huntington,  Hyde,  Jordan,  Kemble,  Kirkland, 
McNitt,  Marvin,  \1axwell,Miller,Morris,  Nicholas,  O'Con. 
nor,  Parish,  Patterson,  Rhoades,  Ruggle?,  S«  ars,  Smith 
K.  Spencer,  Stanton,  Stephens,  Stow,  Strong,  Tallmadge, 
J.  J  Taylor,  Vache,  Van  Schoonhoven,  Wi>terbury,  W it- 
beck,  Wood,  A.  Wright,  Yawger,  Young,  Youngs — 53.' 

NOE^— Messrs.  Angel,  Bray  ton,  Cauibreleng,  R.Camp- 
bell, jr.  Chatfield,  Clark,  Clyde,  Conely,  <  ornell,  Cudde. 
back,  Danfonh,  Flanders,  Harrison,  Hart,  Hoffman,  "" 
Hunter,  A  Huntington,  Kernan,  Kingsley,  Loomis, 
McNeil,  Nillis.Pt-nniTnan  Perkins,  Por'er,  Powers.  Presi. 
dene. Richmond,  Riker,  S'.  John,  Salisbury, Sanford, Shaw, 
Sheldon,  Shepard,  Stetson,  Swackhamer,  Taggart.Tilden, 
Townsend,  Tuthill,  White,  Willaid,  Worden— 46. 

PLAN  OF  A  JUDICIARY. 

Mr.  WORDEN  remarked  that  he  had  drawn 
up  a  plan  for  a  Judiciary  which  he  desired  to 
present  to  the  Convention.  He  would  not  ask 
for  its  reading  now  but  would  merely  state  its 
outlines.  In  the  first  place  it  proposes  to  abol- 
ish the  court  of  errors,  and  to  substitute  in  its 
place  a  court  to  consist  of  a  chief  justice  and 
nine  associate  justices.  In  the  next  place,  to 
abolish  the  court  of  Chancery,  and  to  substitute 
in  place  of  it  a  court  with  equity  powers,  under 
the  control  of  the  Legislature,  to  consist  of  not 
less  than  five  judges.  In  regard  to  the  supreme 
court,  he  proposed  to  make  it  consist  of  thirteen 
judges,  a  chief  justice  and  twelve  associates  to  be 
divided  into  classes— the  associate  justices  of 
twelve  to  be  divided  into  classes  of  three  each. — 
The  first  class  with  the  chief  justice,  making 
four,  to  hold  terms  in  bank  for  two  years.  The 
other  nine  justices  to  hold  circuit  and  special 
terms  for  the  hearing  of  non-enumerated  motions. 
Giving  to  the  legislature  the  power  to  require 
any  other  class  of  judges  to  hold  terms  in  bank, 
whenever  the  business  of  the  state  should  require 
it.  To  divide  the  State  into  five  judicial  dis- 
tricts—the city  of  New  York  to  be  one— and  to 
provide  for  the  holding  of  courts  in  each  district. 
Circuit  courts  for  the  trial  of  issues  joined  in  the 
supreme  court  and  sent  to  the  circuit  to  be  tried , 
to  be  held  by  one  of  the  justices  of  the  supreme 
court.  Courts  of  oyer  and  terminer  to  be  held  as 
they  now  are.  Out  of  New  York  the  district* 


529 


to  be  subdivided  into  four  judicial  districts  so  as 
to  make  eight  in  all;  and  in  each  of  these  dis- 
tricts to  appoint  a  president  judge  of  the  court  of 
common  pleas,  to  try  all  the  causes  in  the  courts 
ol  common  pleas  within  his  district.  To  locate 
not  more  than  two  judges  in  each  county  of  the 

,  who  with  tin-  president  judge  shall  con- 
stitute the  court  of  common  pleas  and  the  crim- 
inal court  of  the  county.  He  proposed  so  to 
form  the  judiciary  that  the  whole  system  of  equi- 
ty jurisprudence,  shall  be  remodeled,  leaving  to 
the  Legislature  and  experience  to  point  out  what 
reforms  in  the  practice  of  the  courts  are  expedi- 
ent. He  proposed  to  abolish  masters  and  exam- 
iners in  chancery  and  to  provide  that  all  testimo- 
ny in  chancery  cases  shall  be  taken  before  one  of 
the  judges  of  the  court  of  equity,  or  the  Pres- 
ident, judges  of  the  common  pleas,  so  that  the 
vast  expenses  attendant  on  taking  testimony 
shall  be  done  away  with,  and  leaving  it  to  the 
legislature  to  provide  by  law  for  the  decision  of 
cases  in  Chancery  before  a  president  judge  of 
common  pleas,  or  any  of  the  judges  of  that  court. 
He  would  leave  the  courts  of  the  city  of  New- 
York,  precisely  as  they  now  are,  giving  to  the  le- 
gislature the  power,  as  they  now  possess,  over 
these  courts.  For  the  purpose  of  disposing  of  the 
Equity  business  in  New  York,  in  that  respect  he 
would  leave  it  as  it  now  is,  with  two  officers  to 
have  in  that  county,  the  powers  given  to  the  pre- 
sident judges  of  the  common  pleas,  in  the  several 
districts  of  the  state— they  to  have  the  dower  of 
trying  these  Chancery  causes.  This,  Mr.  W.  said, 
was  briefly  the  plan  he  submitted.  In  regard  to 
the  election  of  judges,  he  had  not  submitted  any 
proposition,  and  (here  were  two  already  before 
the  Convention,  and  in  relation  to  this  he  begged 
leave  to  present  to  the  Convention  a  view  of  the 
case  not  yet  taken.  The  judiciary  power  of  the 
state,  is  in  its  nature  and  character,  totally  differ- 
ent from  the  legislature  or  Executive.  It  varies 
essentially  from  both  these  departments,  and  he 
believed  to  the  extent  of  any  gentleman  there, 
that  the  legislative  and  Executive  departments 
should  respond  as  freely  as  possible  to  the  ac- 
tion of  the  popular  will.  But  the  judiciary 
is  another  branch  of  the  government  in  which 
individual  rights  are  to  be  determined  and 
settled  upon  great  and  fundamental  princi- 
ples, that  cannot  or  should  not  change  or  alter, 
and  whether  one  man  stands  in  opposition  to  the 
whole  people,  or  the  whole  people  to  one  man, 
the  great  question  of  individual  rights  should  be 
determined  upon  the  intrinsic  merits  of  the  case. 
In  that  consists  the  dignity,  the  efficiency, and  the 
purity  of  the  judicial  system.  Again,  that  the 
judicary  system  may  be  a  protection  to  individual 
rights  and  individual  liberty,  and  that  it  may  con- 
fine and  keep  within  its  proper  limits  all  the 
powers,  duties  and  departments  of  government, 
.it  must  be  independent,  and  not  made  to  depend 
on  the  caprice  or  fluctuation  of  public  or  private 
opinion.  In  all  these  respects  a  judiciary  system 
should  be  guarded,  trenched  about  and  kept  void 
of  influences  that  are  not  properly  and  altogether 
legitimate.  He  believed  it  possible  to  frame  a 

in  of  elective  judiciary  upon  a  safer  plan 
than  that  submitted  by  the  majority  of  the  com- 
mittee, and  he  had  not  agreed  to  that  plan  pre- 
cisely, if  the  Convention  should  adopt  the  princi- 


pie  of  electing  judges.  He  wished  to  say  one 
word  in  regard  to  that  matter.  The  very  pole 
star  tc  guard  us  in  the  formation  of  a  judiciary, 
is  to  have  it  independent  and  away  as  far  as  pos- 
sible from  any  exciting  questions  that  operate 
upon  legislation,  the  executive,  or  the  popular 
body  at  large,  so  that  individual  and  public  rights 
may  be  settled  upon  great  and  fundamental  prin- 
ciples, administered  in  the  courts,  not  for  po- 
litical benefit  or  in  reference  to  public  sentiment, 
but  by  the  eternal  and  abiding  principles  of  jus- 
tice. Mr.  WORDEN'9  plan  is  as  follows  :— 

^  1.  The  judicial  power  shall  be  vested  in  a  court  for 
the  trial  of  impeachments',  a  court  for  the  correction  of  er- 
rors a  court  of  equity,  a  supreme  court,  county  courts  and 
courts  of  oyer  and  terminer,  and  such  inferior  courts  as 
may  be  created  by  law,  pursuant  to  this  Article. 

(j  2.  The  court  lor  the  trial  of  impeachments  shall  consist 
of  the  PresUent  of  the  Senate,  the  senators  or  a  major  part 
of  them,  the  justices  of  the  court  for  the  correction  of  er- 
rors or  a  major  part  of  them. 

§  3.  The  Assembly  shall  have  the  power  of  impeaching 
all  civil  officers  of  this  state,  for  mal  and  corrupt  conduct 
in  office,  and  high  crimes  and  misdemeanors;  but  a  major- 
ity of  all  the  members  shall  concur  in  an  impeachment. — 
Before  the  trial  of  an  impeachment  the  members  of  the 
court  shall  take  an  oath  or  affirmation  truly  to  try  and  de- 
termine the  charge  in  question,  according  to  evidence,  and 
no  person  shall  be  convicted  without  the  concurrence  of 
two-thirds  of  the  members  present.  "When  the  Governor 
shall  be  impeached,  the  Lieutenant  Governor  shall  take  no 
part  on  the  trial  or  decision  of  such  impeachment.  A  per- 
son impeached  shall  be  suspended  from  exercising  his  of- 
fice until  acquitted.  Judgment,  in  case  of  impeachment, 
shall  not  extend  further  than  removal  from  office,  and  dis- 
qualifica'ion  to  hold  any  office  or  place  of  trust  under  this 
state;  but  the  party  convicted  shall  be  liable  to  indictment 
and  punishment  according  to  law. 

§4  The  court  for  the  correction  of  errors  shall  consist 
of  a  chief  justice,  and  not  less  than  nine  associate  justices. 
The  supreme  court  shall  consist  of  a  chief  justice,  and  not 
less  than  twelve  associate  justices.  The  court  of  equity 
shall  consist  of  a  chief  justice,  and  not  Jess  than  lour  asso- 
ciate justices,  any  four  of  whom  may  hold  the  court;  and 
special  terms,  for  hearing  and  deciding  such  questions  and 
matters  as  may  be  prescribed  by  law,  may  be  held  by  any 
one  of  the  justices  of  the  court  of  equity. 

§  5.  The  state  shall  be  divided  into  not  less  than  five  ju- 
dicial districts,  of  which  the  city  and  county  of  New  York 
shall  be  one;  but  no  connty  shall  be  divided  in  the  forma- 
tion of  a  district.  Terms  of  the  supreme  court,  and  of  the 
court  of  equity,  shall  be  held  in  each  judicial  district,  at 
such  times  and  places  as  shall  be  prescribed  by  law.  The 
terms  of  the  court  for  the  correction  of  errors  shall  be 
held  at  the  times  and  places  fixed  by  law. 

§  6.  The  stated  terms  of  the  Supreme  Court  shall,  when- 
ever practicable,  be  held  by  four  justices  thereof;  butmay 
be  held  by  three  or  any  two  of  them,  in  case  of  absence  of 
the  other  justices  And  the  justices  ot  said  court  shall  by 
lot  or  otherwise  divide  the  associate  justices  thereof  into 
four  classes,  each  to  consist  of  three  such  justices.  The 
justices  of  each  class  in  rotation,  or  their  successors  in  of- 
fice, shall,  with  the  chief  justice,  hold  the  stated  terms  of 
the  said  court  for  two  years.  1  he  legislature  may  by  Jaw 
direct  that  any  other  of  the  said  classes  may  hold  stated 
terms  whenever  it  shall  be  found  necessary  to  dispose  of 
business  pending  in  said  court.  Special  terms  of  the  su- 
preme court  may  be  held  by  any  one  justice  thereof,  for 
the  hearing  and'decision  of  such  questions  and  matters  as 
may  be  prescribed  by  law,  with  the  right  of  appeal  to  the 
justices  of  the  said  court  at  a  stated  term,  in  such  cases 
and  on  such  terms  as  the  legislature  may  direct,  or  as  may 
be  directed  by  general  rules  of  said  court  when  authorized 
by  law.  Such  special  terms  shall  be  held  in  each  judicial 
district  at  the  places  prescribed  for  holding  stated  terms 
of  the  said  court.  And  they  may  also  be  held  by  any  of 
the  justices,  who  are  not  at  the  time  dcsignuted  to  hold 
stated  terms,  in  the  several  counties  at  the  same  times  and 
places  at  which  circuit  cuurts  nrc  appointed  to  be  held,  or 
at  other  times  at  d  plncos  as  shaJl  be  directed  bv  law. 

^7  Circuit  courts  lor  the  trial  of  issues  joined  in  the  su- 
preme court,  or  sent  to  that  court  to  be  tried,  shall  be  held 
at  least  twice  in  each  year  in  every  county  of  this  State, 
and  oftener  in  any  county  when  required  by  law.  They 
shall  be  held  by  such  of  the  associate  justices  of  the  su- 

41 


530 


preme  court  as  are  not  at  the  time  designated  to  hold  the 
stated  terms  of  the  said  court,  in  such  rotation  and  order  as 
shall  be  arranged  among  themselves;  or,  incase  of  their 
disagreement,  as  shall  be  directed  by  the  supreme  court  at 
a  staled  term  thereof.  But  no  such  justices  shall  hold  a 
circuit  court  in  the  same  county  more  than  once  in  the 
same  year.  The  mode  of  supplying  any  omission  of  a  jus- 
tice of  the  supreme  court  to  attend  any  stated  term  or  to 
hold  any  circuit  court,  shall  be  prescribed  by  law. 

&  8.  courts  oloyer  and  terminer  for  the  trial  of  such  crl 
minal  causes  as  shall  be  directed  by  law,  shall  be  held  at 
the  same  times  and  places  for  which  circuit  courts  are  ap- 
pointed They  shall  be  held  by  a  justice  of  the  supreme 
court  and  a  judge  or  judges  of  the  county  courts,  or  justi- 
ces of  the  peace  of  the  county,  as  the  legislature  may  di- 

§9.  Each  of  the  judicial  districts  of  the  state,  except  that 
consisting  ot  the  city  and  county  of  New  York,  shall  be 
subdivided  into  two  districts}  and  ior  each  of  the  said  last 
mentioned  districts,  there  shall  be  a  presiding  judge  ol 
county  courts,  and  ia  each  of  the  counties  composing  such 
districts,  there  shall  be  elected,  not  more  than  two  county 
judges,  who  shall  hold  their  office  for  five  years.  And  the 
countv  courts  of  >he  several  counties  in  said  last  mentioned 
districts,  snail  be  held  by  the  presiding  judge  thereof  and 
by  the  county  judge  or  judges.  And  the  presiding  judge 
mav,  alone,  try  all  civil  issue  brought  to  trial,  o»  ordered  to 
be  tried  in  said  courts.  The  powers  and  juri>diction  of  the 
county  courts,  as  now  existing,  shall  remain,  until  altered 
by  the  legislature,  which  may  confer  such  other  additional 
powers  on  the  said  courts  as  may  be  deemed  expe-iient. 

&  10.  In  suits  and  proceedings  m  equity,  the  testimony 
snail  be  taken  before  one  of  the  justices  of  the  court  ot 
equity,  or  one  ol  the  Vice-Chanceliors,  or  a  presiding  judge 
ot  the  county  courts;  and  issues  of  fact  joined  or  lormtd 
in  such  suits  shall  be  tried  before  a  justice  of  the  court  of 
equity,  or  one  of  the  Vice-Chancellors,  or  at  a  circuit  court, 
or  by  a  presiding  judge  of  county  courts,  as  the  legislature 
may  direct;  and  the  mode  of  deciding  questions  and  causes 
on  pleadings,  or  upon  pleadings  and  proofs,  or  of  determin- 
ing questions  of  lact  and  the  mode  ot  appealing  from  such 
decisions  t«  the  court  of  equity  at  a  stated  term,  shall  be 
provided  by  law.  And  it  shall  be  in  the  power  ol  the  legis- 
lature to  conler  such  equity  ]  owers  and  duties  on  the  pre- 
siding judges  of  county  courts,  and  the  \ice-Chancellors, 
from  time  to  time,  as  sliall  be  deemed  expedient. 

§  11.  There  shall  be  in  the  city  and  county  of  New  York 
not  less  than  two  Vice  Chancellors,  who  shall  possess  and 
exercise  within  the  said  city  and  county,  subject  to  the  ap- 
pellate jurisdiction  of  the  court  of  equity,  such  equity 
powers  and  duties  as  may  be  prescribed  by  law. 

&  12.  The  courts  of  common  law  and  criminal  jurisdic- 
tion in  the  city  and  county  ol  New  York,  as  they  may  be 
organised  and  exist  when  this  constitution  takes  effect, 
shull  continue  and  remain,  subject  to  be  altered,  modified 
or  entirely  abolished. 

&  13  Inferior  courts  of  equity  and  common  law  jurisdic- 
tion may  be  established  by  the  legislature.  And  appeals 
and  writs  of  error  therefrom  may  be  brought  to  the  su- 
preme  court,  court  of  equity  or  court  for  the  correction  of 
errors,  as  may  be  prescribed  by  law. 

^  14.  The  court  lor  ihe  correction  of  errors  shall  be  ap- 
pellate, and  shall  possess  tue  powers  now  vested  in  that 
court  but  the  concurrence  of  six  of  the  members  of  that 
court' shall  be  necessary  to  reverse  or  modify  any  judg- 
ment or  decree.  The  court  of  equity  shall  possess  and  ex- 
ercise equitv  powers.  The  supreme  court  shall  pos- 
sess the  powers  now  vested  in  that  court,  and  equity  pow- 
ers may  be  conferred  thereon.  The  number  ol  justices  of 
the  court  for  the  correction  of  errors,  of  the  supreme  court 
and  the  court  of  equity,  and  the  vice  chancellors  of  the 
city  and  county  of  New  York,  maj  from  time  to  time  be 
increased-  but  not  more  than  one  justice  or  chancellor 
shall  be  added  to  the  said  courts  in  any  one  year.  Nor 
shall  the  number  of  vice  chancellors  be  increased  more 
than  one  in  the  same  year;  nor  shall  any  such  increase  b« 
made  unless  by  the  assent  ol  two-thirds  ol  all  the  mem- 
bers elected  to  both  branches  of  the  Legislature. 

k  15  The  justices  of  the  court  lor  the  correction  of  er 
rors 'and  of  the  supreme  court,  the  court  of  equity  and 
Vice-chancellors,  and  president  judges  of  county  courts, 
shall  severally,  at  stated  times,  receive  ior  their  services 
a  compensation,  to  be  established  by  law,  which  shall  not 
b>  diminished  during  their  continuance  in  office.  They 
shall  not  receive  any  lees  or  perquisites  Icy  judicial  ser- 
vices They  shall  n6t  hold  aay  other  office  or  public  trust, 
and  all  vote*  lor  either  of  them  by  the  legislature  or  the 
neoule  during  their  continuance  in  office  (except  for  a  ju- 
dicial office),  shall  be  void.  They  shall  not  have,  and  are 


declare  incapable  of  receiving,  any  appointing  power  (ex- 
cept the  power  to  license  practitioners  in  their  courts,  and 
to  appoint  referees  and  other  proper  persons  to  aid  in  judi- 
cial proceedings). 

§  16.  All  judicial  officers  except  justices  of  the  peace, 
may  be  removed  from  office  by  joint  resolution  of  both 
houses  oi  the  legislature,  if  two  thirds  of  all  the  members 
elected  to  both  branches  concur  therein;  but  no  such  re- 
moval shall  be  made  unless  the  party  complained  of,  shall 
have  been  served  with  a  copy  of  the  complaint  against 
him,  and  have  had  an  opportunity  of  being  heard  in  his  de- 
fence. The  cause  of  such  removal  shall  first  be  agreed  on 
by  two-thirds  of  all  the  members  elected  to  both  branches 
and  entered  on  the  journals  of  both  houses,  and  on  the 
question  of  agreement  or  removal  the  ayes  and  noes  shall 
also  be  entered  on  the  journals  of  both  houses. 

§17.  Surrogates  shall  hold  their  offices  for  four  years, 
and  shall  be  elected  by  the  qualified  electors  of  the  several 
counties. 

§  18.  The  justices  of  the  peace  in  office  when  this  con- 
stitution takes  effect,  shall  remain  and  continue  in  office 
for  the  residue  of  the  terms  for  which  they  were  respec- 
tively elected,  and  they  shall  continue  to  be  elected  in  the 
manner  and  hold  their  offices  for  the  term  prescribed  in 
the  present  constitution. 

Mr.    TALLMADGE  moved  that    the  plan    be 
printed  and  referred  to  the  same  committee  of  the 
whole  as  the  other    reports      This  was  agreed  to. 
ORDER  OF  BUSINESS. 

The  report  on  this  subject  was  iigain  taken  up. 

Mr.  MANN  moved  to  amend  the  report  so  as  to 
make  the.  report  on  the  finances  the  next  business 
in  order,  alter  the  judiciary  revolt  was  disposed  of. 
Agreed  to. 

Mr.  CHATFIELD  moved  to  make  the  report  of. 
the  committee  on  ihe  judici-.ry  a  speci;il  order  for 
Monday  week.  Mr.C  did  not  deMre  to  be  obliged 
to  consider  a  report  before  it  was  printed  and  before 
him,  to  examine  and  understand  it.  None  of  these 
reports  had  as  yet  been  punted.  He  was  not  able 
to  loreshadow  the  result  of  the  vote  just  taken,  or 
to  see  what  influences  had  brought  it  about.  It  , 
might  be  the  result  of  a  connection  ot  the  legal 
gentlemen  here,  of  high  character,  with  those 
who  are  adverse  to  all  leform  in  the  finances,  lo 
occupy  so  much  of  the  time  with  ihis,  that  the 
otlier  subject  would  receive  the  go-by. 

Mr  BROWN  felt  called  upon  now  after  what 
had  just  fallen  trom.the  gentleman  lo  say  a  word, 
and  before  he  pioceedt-d,  he  wished  to  say  that  he 
should  not  regard  this  day  as  altogether  lost,  if 
spent  in  the  discussion  i.f  this  question,  because 
the  time  had  ai rived  when  it  became  the  members 
of  this  Convention  to  stop  and  make  an  observa- 
tion as  to  their  present  latitude  and  longitude. 
It  wiis  in  vain  tor  gentleman  to  say  that  there  was 
abundant  time  and  opportunity  for  us  to  accom- 
plish all  of  our  business.  To  be  sure  there  was 
much  business  done  at  the  close  of  the  session, 
but  it  was  always  badly  done.  He  was  satisfied 
that  all  atiempt*  to  curtail  debate  would  be  whol- 
ly useless,  and  this  had  been  fully  demonstrated 
here  In  regard  to  the  appieht  nsions  of  a  union 
to  stifle  the  consideration  of  the  great  report  on 
the  finances,  God  forbid  that  there  should  be  any- 
thing of  the  kind.  He  desired  above  hll,that  ihia 
financial  question  should  be  here  settled  forever. 
The  judiciary  system  might  be  settled  by  legisla- 
tive action,  but  this  was  a  question  that  could  never 
be  settled  by  any  such  action.  He  would  say  to  the 
gentleman  from  Otsego,  that  he  (Mr.  B.)  too,  had 
apprehensions  on  the  subject, and  when  he  saw  men 
of  experience  introducing  here,  not  for  action,  but 
for  discussion,  a  variety  of  questions  purely  legis- 
lative in  their  character,  he  feaied  that  this  great 


531 


qutsitioii  would  have  been  crowded  i-ff  and  fall 
down  altogether.  And  if  we  should  go  home  with 
the  mortification  of  having  had  the  great 
{or  whirl)  we  were  assembled,  full  down  before  us, 
it  would  he  fiorn  this  very  cause.  In  relation  to 
the  vote  he  had  just  given,  he  confessed  it  was 
with  reluctance,  and  upon  reflection  he  was  not 
cenairi  that  he  was  right  in  doing  so,  and  there- 
fore if  the  pending  motion  was  withdrawn,  he 
would  move  a  recon.-ideration  of  the  vote  just 
taken.  Mr.  H  re  lei  red  to  the  attempt  that  had 
b<-en  made  to  disparage  the  judiciary  committee, 
as  an  injustice  to  them.  Most  faithfully-  and  in- 
dusiriouMv  had  they  labored,  and  they  had  agreed 
upon  all  the  great  and  material  features  of  a  sys- 
tem, the  detail*  only  being  a  mat.er  of  disagree^ 
ment  This  he  ventured  to  say  would  be  fully 
shown  when  the  report  came  to  be  considered, 

Mr.  TILDEN  said  that  personally  he  felt  more 
interest  in  the  judiciary  question  than  wny  other, 
but  he  owed  a  higher  duty  to  his  constituents, 
tnan  to  be  governed  by  such  considerations  in 
adopting  an  order  of  business.  And  he  was  free 
to  say  that  he  regarded  the  vote  just  taken  as  a 
portentous  one.  It  was  a  vote  giving  precedence 
t>  the  rep.;rt  of  the  judiciary  over  nearly  all  the 
other  questions  which  have  called  this  Conven- 
tion into  existence.  That  report  was  not  first  in 
order  of  time — and  important  as  it  is,  it  was  not 
the  question  that  originated  the  great  popular  de- 
'tnaud  for  a  Convention.  Nor  was  the  report 
printed  >er,  nor  had  it  been  fully  examined.  Mr. 
T.  referred  to  the  vote  just  taken,  as  showing  a 
combination  of  influences  somewhat  ominous  — 
The  rnaj-itity  wa^  composed  of  those,  who,  it  was 
understood,  were  mainly  opposed  to  this  great 
measure  of  fin; nciai  reform.  Take  away  from  that 
majoi  i!  v  the  gentlemen  who  com  posed  I  he  judiciary 
committee,  and  it  would  be  seen  that  this  was  so. 

Mr.  PATTERSON  wished  to  call  attention  to 
the  business  before  us.  We  had  voted  to-day  to 
make  this  judiciary  report  number  3,  in  the  order 
of  business.  It  was  now  alleged  that  this  would 
be  taken  up  to-day.  This  would  depend  very 
much  upon  the  length  of  speeches  made  on  the 
order  of  business.  Mr.  P.  suggested  that  if  this 
should  be  made  a  special  order  for  Monday  next, 
it  would  then  be  behind  all  unfinished  business, 
and  might  n«t  be  considered  for  three  weeks  from 
that  time  The  Convention  should  understand 
this  matter  before  reversing  the  vote  just  taken. 

Mr.  RUGGLES  said  that  he  had  made  the  mo- 
tion to  take  up  the  judiciary  report,  under  the 
belief  that  there  was  a  pressing  necessity  of  set- 
tling upon  some  order  for  the  sake  of  expediting 
business,  and  for  the  purpose  of  bringing  that 
question  before  the  Convention.  It  was  for  that 
purpose,  not  that  he  had  any  preference  for  the  ju- 
diciary report  in  the  first  instance,  and  because 
he  desired  to  see  the  question  disposed  of  at  an 
early  day,  and  before  the  Convention  became  ex- 
cited by  the  discussion  of  more  exciting  topics. — 
He  was  even  now  willing  that  some  other  report 
should  be  brought  forward  and  discussed,  but  not 
that  of  the  finances.  He  had  an  objection  to  tak 
ing  up  that  question  first,  because  it  was  one  of 
great  magnitude,  would  occupy  a  long  time  in 
discussion,  and  one  that  would  create  some  ex- 
*  citement  on  the  minds  of  members,  and  during 

he  discussion    of  which    very    little  attention 


would  be  paid  to  the  report  of  the  judiciary. — 
And  all  would  concur  in  the  necessity  of  giving  to 
the  judiciary  report  a  full  and  calm  discussion 
free  from  any  such  exciting  influences. 

Mr.  JORDAN  opposed  the  postponement  of  the 
judiciary  reports  to  so  late  a  day  as  Monday  week, 
and  went  on  to  urge  that  some  other  reason  must 
exist   for  desiring  this   postponement,  than  that 
members  had  not  read  them.     All  of  us  had  been 
supplied  with  newspapers,  by  the  vote   of  the 
Convention,  and  if  all  had  not  read  them  there,  he 
ventured  to  say  that  two-thirds  of  the  electors  had. 
He  could  account   for  the  gentleman  from  Otsego 
not   having  read   them,   from   the  great  burthen 
which  fell  upon  him  of  sustaining  his  own  report 
on  the  state  departments.     He  urged  that  these  re- 
ports should  be  taken  up  as  soon  as  the  one  now  . 
pending  was  disposed   of,  and  then,  if  gentlemen 
desired  further  time,  they  could  be  made  unfinish- 
ed business,  and  kept  within  the  control  of  the 
body.     Mr.  J.  disclaimed   having  entered  into  a 
combination  or  intrigue  to  give  a  precedence  to 
these  judiciary  reports  over  that  on  the  finances. 
He  knew  of  no  such  combination  or  conspiracy  ; 
and  any  such  imputation  upon   him,   came  from 
those   who  did  not  know   him.     And  for  one,  he 
could  say  that  on  the   great  subject  of  the  finan- 
ces, he  came  here   with   as   hearty  a  willingness 
and  desire  to  have  it  brought  forward  and  consi- 
dered as  the  subject  of  the  judiciary.     And  when 
the  former   came   up,  he  intended  to  bestow  the 
ame  honest  attention  and   thought  upon   it,  that 
le  had  sought  to  give  to  the  judiciary  question, 
^ot  that  he  intended  to  speak  upon  it— for  he  was 
not  familiar  with  the  subject,  and  he  did  not  be- 
.ieve  the   public  interest  would  suffer  from  his 
gnorance,  for  there  was   a  corps  of  gentlemen, 
,vho  appeared  to  consider  themselves  specially 
charged  with  every  measure.     They  had  attended 
to  their  supposed  duties  with  gre  t  fidelity,  and 
rather  than  subjects  should  not  be  well  consider- 
ed and  well  understood,  they  had  fallen  into  the 
labit  of  repeating  over  and  over  again  not  only 
what  others  had  said,  but  what  themselves  had 
said.     Much  of  the  time  of  the  Convention,  he 
regretted  to  say,  had  been  taken  up  in  this  way, 
as  it  had  a  tendency  to  keep  back  ideas  which  oth 
ers  might  have  broached  perhaps  to  advantage, had 
not  the  patience  of  the  body  become  exhausted 
"rom  the  eternal  debate  about  every  thing  and  no- 
thing.    Mr.  J.  was  ready  to  go  on  with  this  great 
subject  of  finance.     He  had  looked  over  the  re- 
port and  had  already  considered   the  subject. — • 
There  were  many  things  in  the  report  which  he 
admired,  and  the  necessity  of  which  he  was  im- 
pressed with.     And  he  would  almost  give  up  the 
judiciary,  the   great  anchor  of  the  state,  if  he 
thought    its   consideration    first    would  give  the 
financial  question  the  go-by.     But  he  trusted  the 
order  assigned  to  these  reports  would  be  adhered 
to — and   that   the   judiciary    report   would    not 
be   postponed  to  that  of  finance,   in  which  there 
probably   was   combustible   material   enough   to 
rouse   a  feeling  here  incompatible  with  a  calm 
and  proper  discussion  of  the  question  of  the  judi- 
ciary. 

Mr.  LOOMIS  said  that  although  it  was  mani- 
fest to  those  who  had  observed  the  vote  just  taken, 
that  party  lines  were  nearer  drawn  than  upon  any 
vote  that  had  been  yet  taken,  still  he  could  very 


532 


easily  account  for  it  without  presuming  any  such 
connection  of  action.  It  resulted  simply  from  the 
preferences  of  individuals  and  the  importance 
which  gentlemen  of  different  modes  of  thinking 
gave  to  one  subject  or  the  other.  He  considered 
the  subject  of  finances  the  most  important,  and 
in  drawing  up  the  order  of  business  which  had 
been  recommended  by  the  committee,  he  had 
sought  to  divest  himself  of  all  individual  prefer- 
ences. And  he  would  say  that  as  a  reformer,  he 
had  devoted  three  hours  to  judicial  reform  where 
he  ever  had  one  to  the  subject  of  finances.  His 
aim  was  to  facilitate  business — and  he  supposed 
that  whilst  the  subject  of  the  judiciary  would 
probably  draw  out  the  most  debate,  there  were 
other  matters  of  engrossing  interest  on  which  the 
public  mind  was  better  settled,  and  which  would 
require  less  time  to  adjust  here — and  that  these 
should  be  disposed  of  first.  At  the  same  time, 
h,e  preferred  to  make  no  special  orders,  but  to  ad- 
here to  the  order  laid  down  heretofore.  Mr.  L. 
concluded  by  moving  to  postpone  this  subject  un« 
til  to-morrow. 

Mr.  CHA  TFiELD,  in  order  to  meet  objections, 
sent  up  a  proposition  making  the  judiciary  reports 
the  special  order  for  Monday  the  17th  inst.,  10 
o'clock,  then  to  take  precedence  ot  all  other  or- 
ders or  business.  Mr.  C.went  on  to  explain  a  re- 
mark which  seemed  to  have  given  ofience  in  cer- 
tain quarters.  He  did  not  intend  to  charge  that 
there  was  a  combination  between  the  judiciary 
committee  and  any  party  here.  He  intended  lo 
say  that  the  judiciary  committee  desired  to  secure 
for  their  report  an  early  consideration, — that  that 
would  naturally  draw  to  the  support  of  a  motion 
to  give  it  preference,  all  the  members  of  that  com- 
mittee—that  there  were  those  who  sought  that 
opportunity  to  accomplish  a  certain  object, — that 
almost  all  the  whig  members  voted  on  that  side 
— and  that  all  this  loreshadowed  a  disposition  to 
get  rid  or  a  certain  subject.  But  he  meant  to 
charge  no  combination  upon  the  judiciary  com- 
mittee. This  was  not  the  first  time  Mr.  C.  had 
been  lectuied  by  the  gentleman  from  Columbia 
who,  to  carry  a  certain  point  had  often  availed 
himself  ot  the  feeling  here  against  debate.  But 
Mr.  C.  was  not  to  be  deterred  by  these  castiga- 
tions  from  expressing  his  views  here  on  any  sub. 
ject  111  which  he  felt  an  interest — and  he  suffered 
no  man,  without  replying,  to  stand  up  here  and 
attempt  to  lecture  him  lor  wasting  the  time  of  the 
House,^  especially  when  reproof  came  from  one 
who  had  occupied  more  time  in  debate  than  he 
had.  In  the  eaily  part  of  the  session,  that  gen- 
tleman had  made  as  long  speeches  as  any  one, 
and  made  them  more  frequently  than  he  (Mr  C  ) 
and  since  then  he  has  taken  it  upon  himself,  al- 
most every  day  to  get  up  and  spend  half  an  hour 
in  lecturing  this  body.  He  (Mr.  C  )  denied  him 
that  right.  All  aie  equal  here,  and  he  had  no 
more  right  to  arraign  him  at  the  bar  of  the  house 
in  accordance  with  his  notions  of  justice,  than  had 
he  (Mr.  C  )  to  arraign  him.  If  he  (Mr.  C  )  spent 
the  time  ol  the  House,  he  was  responsible.  As  to 
the  financial  report  embarrassing  fhe  consideration 
of  the  judiciary  report,  even  though  the  former 
might  contain  combustible  materials,  he  could 
not  see  how  that  could  be  the  result  of  its  prior 
consideration.  But  he  had  framed  his  resolution 
BO  that  by  no  possibility  could  the  fhancial  report 


override  that  from    the  judiciary — and    with  this 
he  hoped  gentlemen  would  be  content. 

Mr..  STEPHENS,  though  he  voted  to  give  a 
preference  to  the  judiciary  reports,  yet  as  anoiher 
had  first  come  from  one  of  the  judiciary  commit* 
tees,  he  was  not  disposed  to  precipitate  a  discus- 
sion of  it,  before  any  of  these  reports  were  printed 
— and  unless  this  motion  prevailed,  we  might  be 
called  on  to.moirow  to  go  into  it. 

Mr.  HOFFMAN  said  that  the  gentlemen  from 
Columbia  and  Dutchess  had  now  been  pleased  te- 
state why  they  desired  the  judiciary  report  to 
have  precedence  over  that  on  finances.  If  they 
had  not  avowed  the  reason,  he  would  never  have 
suspected  it.  The  objection  was  that  the  subject 
of  finance,  as  presented  in  the  report,  was  one  that 
would  carry  the  Convention  with  inflammatory 
zeal  into  the  residue  of  their  labors.  With  all 
deference  to  the  gentlemen,  he  could  not  accord 
in  any  such  libel  on  the  Convention.  This  Con- 
vention to  be  moved  by  a  debate  upon  the  dull 
subject  of  finance,  so  as  not  to  be  able  to  act  with 
deliberative  wisdom  on  a  judicial  system  f  If  this 
report,  was  combustible,  it  was  not  so  bad  as  that 
argument  supposes  this  Convention  to  be.  Gen- 
tlemen, in  his  opinion,  were  entirely  mistaken. 
He  entertained  no  such  suspicions  of  this  body, 
and  it  had  never  entered  his  head  for  one  moment 
to  suppose  that  to  be  the  reason  why  it  was  de- 
sired that  the  judiciary  should  have  precedence, 
over  the  finance  report.  But  he  differed  as  much 
from  them  in  relation  to  the  character  of  the  sub- 
ject, as  he  did  in  relation  to  the  liberality  and  ca- 
pacity of  the  Convention.  A  subject  of  finance, 
an  exciting  question  !  On  what  subject  could  a 
man  sleep,  if  not  on  the  dull  subject  of  finance  ? 
Talk  about  exciting  the  Convention  by  a  debate  on 
finances!  When  or  where  did  that  ever  happ<  n  ? 
$25,000,000  of  debt,  never  to  be  redeemed  and 
paid,  without  paying  about  40,000,000  of  dollars, 
interest  and  principal, — was  that  a  question  to 
make  men  mad,  to  deprive  them  of  judgment, 
and  to  incapacitate  them  from  considering  se- 
riously and  calmly  a  judicial  system  ?  If  there 
be  any  subject  calculated  to  humble  us,  to  bow  us 
down  to  the  earth,  and  to  prostrate  us  into  the 
ashes  and  dust  of  the  past,  it  was  the  considera- 
tion of  this  subject  of  finance.  Heartfelt  sorrow, 
deep,  abiding  regret  for  the  past,  and  firm 
and  abiding  resolution  to  do  right  for  the  future — 
these  were  the  only  feelings  that  grew  out  of  such 
a  subject.  Gentlemen  were  mistaken  in  suppos- 
ing that  upon  a  subject  of  this  dull,  death-like 
and  practical  nature,  they  can  hurry  this  Con- 
vention in  the  violence  of  passion.  It  was  not 
one  of  those  subjects  on  which  the  imagination 
would  delight  to  revel,  or  the  passions  exert 
themselves.  So  of  that  other  branch  of  the  finan- 
cial report  requiring  specific  appropriations,  and 
allowing  the  future,  when  debts  were  to  be  con- 
tracted, to  pass  upon  the  question  whether  they 
should  be  settled  on  them — what  was  there  exci- 
ting in  that  ?  But  it  was  not  the  report  of  the  com- 
mittee or  the  subject  of  finance,  he  apprehended, 
that  excited  the  fears  of  gentlemen.  He  appre- 
hended that  they  supposed  that  he  should  feel  it 
to  be  his  duty  or  right  to  look  back  into  the  sour- 
ces of  debts,  to  condemn  the  course,  and  arraign 
the  motives  of  men,  and  thus  excite  the  angry- 
passions  of  the  Convention,  If  that  be  the 


533 


foundation  of  the  fears  of  gentlemen,  then 
he  would  say  to  them  that  they  had  never 
been  more  mistaken.  In  a  practical  matter 
in  rel.tlu'M  lo  things  that  have  passed,  gone 
by  and  cannot  be  iec,-illed,  does  any  man  suppose 
that  he  was  weak  enough  to  seek  after  motives, 
where  a  small  .*hare  of  hypocilsy  would  non-suit 
him.  Wiih  millions  ol  debt  to  pay,  did  the  gen- 
tlemen suppose  that  he  was  so  weak  and  feeble, 
as  to  endeavor  to  airaign  the  past.  God  forbid 
that  any  such  error  should  be  committed  by  any 
member  of  the  Convention.  No,  it  was  Ihe  ways 
and  means  to  pay,  the  iron  screw  of  taxation,  di- 
rect and  indirect,  these  were  the  things  to  be  con. 
sid-T^d.  It  was  wholly  immaterial  who  created 
the  debt,  or  what  were  iheir  motives.  And  having 
disavowed  any  design  as  an  incendiary,  with  a 
financial  torch  to  blow  up  this  splendid  edifice  ol 
a  judiciaiy  system  sky-high — and  having  endea- 
vored to  satisfy  uentlemen  that  the  subject  wasone 
which  could  n.ot  lead  to  extreme  agitation,  he  did 
hope  that  the  judiciary  report  would  not  be  placed 
ahead  of  the  finances  on  the  ground  of  any  dread- 
ed explosion.  It  was  but  the  weak  dream  and  de. 
lusion  ol  the  hour,  and  had  no  foundation  in  truth 
Mr.  WORDEN  thought  really  we  could  get  at 
some  order  of  business.  He  thought  he  could  see 
what  difficulty  lay  at  the  bottom  of  all  this  busi- 
ness. He  did  not  doubt  but  what  the  gentleman 
from  Herkirner  would  meet  this  question  of  finance 
with  cool  and  able  argument.  So  momentous  a 
subject  should  not  be  considered  under  excitement. 
Mr.  W.  did  not  believe  party  considerations 
would  mingle  *iih  this  question  of  internal  im 
provements.  It  was  far  above  all  others  and 
small  indeed  roust  that  mind  be,  that  would  seek 
thus  to  narrow  it  down.  He  trusted  there  was  no 
disposition  to  force  upon  the  Convention  unpre- 
pared, either  of  the  great  questions  of  finance  or 
the  judiciary.  He  for  one  desired  more  time  to 
examine  the  question  of  finance,  and  he  knew 
there  were  others  similarly  situated.  The  same 
remark  would  apply,  in  regard  to  others,  to  the 
subject  of  judicial  reform,  Propriety,  courtesy 
parliamentary  usage  then  required  that  we  should 
not  be  thus  precipitated  into  the  discussion  of 
either  of  these  great  questions.  Could  not  both 
parties  be  accommodated?  He  trusted  that  the 
gentleman  from  Otsego  would  add  to  his  resolu. 
ticn,  that  immediately  after  the  Judiciary  report 
should  be  disposed  of,  the  report  on  Finance 
should  be  then  considered  and  acted  upon.  He 
made  a  motion  to  that  effect 

Mr.  TILDEN  wanted  to  reverse  this  and  take 
up  the  finance  report  first. 

Mr.  WORDEN  said  that  the  13  members  of  the 
judiciary  committee  had  been  constantly  engaged 
for  46  days  on  the  subject  before  them,  and  had 
no  time  to  examine  this  question  of  finance. — 
Was  it  more  than  fair  to  them  to  give  a  little  lon- 
ger time  to  consider  that  subject  ? 

Mr.  TILDEN  thought  the  same  objections 
would  apply  to  the  other  report. 

Mr.  CHAMBERLAIN  remarked  that  a  majo- 
rity of  the  Convention  could  decide  what  subjects 
they  would  take  up  at  any  time.  Any  order, 
then,  we  might  make  would  be  useless. 

Mr.  PERKINS  thought  we   had  better  adhere 
to  the  decision  already  made. 
The  debate  waa  farther  continued  by  Messrs. 


LOOMIS,  MANN  and  TILDEN,  when  the  amend- 
ment  of  Mr.  WORDEN  was  agreed  to;  ayes  56, 
noes  41. 

AYES--  Messrs.  Angel,  Archer.  Ayrault,  F.F.  Backus, 
II.  Backus.  Baker.  Bascom,  Bonck,  Bowdish  Brayton, 
Brundagc,  Bnrr  D.  D.  • .  amphe  1,  Can. it  e,  Chamberiain, 
Cook,  Crocker,  Dana,  Dodd  Doilon  Graham,  Hauls,  liar- 
risen,  Hawlev,  Hotchk^ss,  E.  Huiitington,  Hydr,  Jordan, 
Ramble.  Kiikln.rH,  Marvin,  Maxwell.  Miller.  Morris,  Nich 
olas,  Parish,  Patterson,  Periniirian,  Porter,  Rugeles,  Sails 
bury,  Sears,  Shaver,  E  Spencer,  Stan  on,  Stow,  Strong, 
Taggart,  Van  Schoonhoven,  Waterbury,  \Vorden,  A. 
Wright,  Yawger,  Young,  Youngs— 56. 

NOES— Messrs  Brown,  Cambnleng,  R.  Campbell,  Jr, 
Chatfield,  Clark,  Conely,  Cornell,  Cuddeback,  Danlorth, 
Flanders,  Hart,  Hoffman,  Hunt,  Hunter,  A  Huntinuton, 
Kernan,  Kingsley,  Loomis,  Mann,  McNeil,  McNitt,  Nellis, 
O'Conor.  Perkins,  Powers,  President,  Riker,  St.  John,  San- 
ford,  Shaw,  She'don,  She;i8rd,  Smith  Stephens.  Stetson, 
swackhamer,  Tilden,  Towusend,  White,  Willard,  Wood 
-  41. 

Mr.  MORRIS  moved  further  to  amend  so  as  to 
make  the  judiciary  report  the  special  order  for 
Monday  next.  Agreed  to. 

Mr.  WORDEN  moved  further  to  amend  so  as 
to  provide  that  the  consideration  of  the  judiciary 
report  be  continued  from  day  to  day  until  dispos- 
ed of.  Agreed  to,  and 

The  resolution  of  Mr.  CHATFIELD,  as  amen 
ded  was  adopted. 

The  Convention  then  took  a  recess. 


AFTERNOON  SESSION. 

Mr.  BAKER  moved  to  lay  upon  the  table  the 
report  of  Mr.  LOOMIS'  special  committee,  upon 
the  order  of  business,  which  was  under  consider- 
ation at  the  hour  of  adjournment  this  morning. — 
Two  of  the  subjects  there  named  had  been  taken 
away  from  it,  to  be  considered  next  in  order  suc- 
cessively, (the  judiciary  and  the  canal  reports,) 
and  three  reports  had  already  been  disposed  of, 
(the  Executive,  Legislature,  and  State  officers). 
As  much  had  been  done  as  was  likely  to  be  pro- 
fitable in  that  way. 

The  motion  was  agreed  to. 

STATE  OFFICERS. 

The  report  of  standing  committee  No.  6  was 
taken  ui>  lor  completion. 

Mr.  KINGSLEY  moved  to  strike  out  the  first 
and  second  sections  of  the  article  and  insert  as 
follows  : 

§  1.  A  Secretary  of  State,  Comptroller,  Treasurer,  At- 
torney General  and  State  Engineer  and  Surveyor,  shall  be 
chosen  at  a  general  election,  and  shall  hold  their  offices 
tor  two  years;  but  no  person  shall  be  elected  State  Engi- 
neer and  Surveyor  who  is  not  a  practical  Engineer. 

L«»st,  without  a  division. 

The  second  section,  as  restored  and  amended, 
was  agretd  to 

The  question  then  recurred  upon  the  adoption 
of  the  first  section. 

Mr.  TrtLLMADGE  moved  to  amend  by  adding 
the  woid  "  compensation"  after  "  perquisites." — 
His  object  was  to  prevent  the  Legislature  Irom 
putting,  in  extra  compensation  in  ihe  annual  sup- 
ply bill,  as  ihev  had  b»-en  in  the  habit  of  doing. 

Mr.  HAVVLEY,to.show  that  such  had  been  the 
practice  of  the  Legislature  heretofore,  read  Imm 
the  Assembly  journal  of  J843.  This  subject  could 
not  be  too  well  guarded,  and  he  hoped  the  amend, 
ment  would  be  made. 

The  motion  was  agreed  to. 


534 


Mr.  CH  ATFIELD  moved  to  strike  oifl  the  word 
"general"  before  "election"  in  the  third  line. — 
Agreed  to. 

Several  verbal  alterations  were  made,  and  the 
section  was  adopted. 

The  thini  section  was  then  read. 

Mr.  MARVIN  moved  to  strike  out  the  salary  of 
the  canal  commissioners.  Agreed  to. 

Mr.  BASCOM  proposed  the  following  a«  a  sub. 
Stitute  for  the  whole  section  :. 

^  3.  Two  Canal  Commissioners  shall  be  chosen  or  ap 
pointed,  who  shall  hold  their  offices  for  four  years,  except 
one  of  those  first  to  he  chosen  or  appointed,  who  shall  hold 
for  two  years.  The  two  first  chosen  or  appointed  shall  by 
lot  determine  which  shall  hold  for  two  years  and  which 
for  four  years. 

Mr.  CH  ATFIELD  defended  the  report  as  it 
originally  stood,  upon  the  same  grounds  that  he 
did  when  in  commit'ee  of  the  whole. 

Mr.  PATTERSON  said  that  in  his  judgment, 
if  anything  of  the' kind  was  to  be  adopted,  the  sec- 
tion as  originally  reported  by  the  committee  was 
the  best  thing  of  the  kind  that  could  be  adopted. 
But  still  he  thought  that  the  whole  matter  ought 
to  be  stricken  out,  and  left  entirely  to  the  legis- 
lature to  appoint,  or  not,  as  heretofore,  as  they 
thought  proper.  These  officers  had  never  been 
recognized  as  State  officers  by  the  Constitution ; 
and  he  thought  it  quite  unnecessary  that  they 
should  be  so  now.  Possibly,  a  greater  or  less 
number  than  three  might  be  required  hereafter 
to  perform  these  duties;  and  therefore  the  legis- 
lature should  have  the  power  to  increase  or  di- 
minish the  number  hereafter  as  might  be  deemed 
necessary. 

Mr.  BASCOM  desired  to  have  the  section 
stricken  out;  and  then  the  entire  subject  would 
be  left  to  the  legislature.  At  the  same  time,  he 
wished  so  to  arrange  the  term  of  their  duties, 
provided  they  should  be  made  State  officers  by 
the  Constitution,  that  considerable  expense  might 
be  saved  to  the. State  by  the  motion. 

Mr.  CHATFIELD  defended  the  report.  He 
had  supposed  that  it  was  the  duty  of  the  commit- 
tee having  this  matter  in  charge,  to  provide  for 
the  appointment  of  all  the  officers  of  the  state  go- 
vernment. They  had  believed  that  such  was  the 
strong  desire  of  the  people  of  the  state  and  there- 
fore they  had  inserted  this  section.  It  was  true 
that  in  the  old  Constitution  there  was  no  pro- 
vision made  for  these  officers,  but  there  was  a 
good  reason  for  that.  The  canal  policy  was  not 
settled  at  that  time  ;  the  canals  were  finished  sub- 
sequent to  the  completion  of  the  Constitution. 
Now  it  was  an  endeavor  on  the  part  of  the  com- 
mittee to  get  rid  of  the  non-acting  canal  commis- 
sioners so  that  the  state  should  pay  for  no  more 
persons  than  were  necessary  to  perform  the  du- 
ties which  legitimately  devolved  on  their  canal 
officers.  Gentlemen  had  spoken  as  it  at  some  pe- 
riod these  officers  could  be  dispensed  with.  That 
time  he  believed  would  never  arrrive  ;  we  should 
always  have  from  600  to  700  miles  of  canals  in 
the  state  to  be  taken  care  of.  The  election  of 
these  officers  by  joint  ballot  of  the  legislature  the 
committee  had  desired  to  prevent.  And  he  was 
convinced  that  if  the  Convention  should  adopt 
this  section  none  of  the  evils  heretofore  complain- 
ed of  or  now  alluded  to  would  occur,  and  he  hoped 
that  they  would  retain  the  section  as  reported. 
Mr.  PERKINS  said  that  the  small  amount  of  a 


salary  of  $1600  for  a  canal  commissioner  was  a 
trifling  affair  to  discuss  so  long  about,  when  $600,- 
000  were  annually  expended  on  the  canals.  And 
an  individual  owning  property  equal  in  value  to 
the  New  York  state  canals,  which  extended  over 
800  miles,  and  requiring  such  constant  super- 
vision, and  which  cost  as  he  had  said  $600,000  for 
repairs — why  a  man  who  owned  this  would  be 
set  down  as  a  crazy  man  who  did  not  have  at  least 
one  general  superintending  officer  or  agent  to 
every  250  miles  of  its  distance,  and  especially  aa 
he  was  to  spend  $200,000  a  year  on  its  repairs. 
He  hoped  the  motion  would  not  prevail. 

Mr.  BASCOM'S  motion  was  lost. 

A  verbal  amendment  was  made  to  strike  out 
"  shall  hold  his  office"  in  fourth  line.  Adopted. 

The  section  was  then  agreed  to. 

The  4th  section  was  read. 

Mr.  TAGG ART  moved  to  strike  out  in  the  12th 
line  all  relating  to  the  pay  of  the  state  prison  in- 
spectors. Agreed  to. 

Mr.  TALLMADGE  said  that  he  would  move 
to  strike  out  the  whole  section.  All  they  had 
done  in  the  whole  of  this  bill  was  a  nullity.  He 
understood  that  there  were  now  five  inspectors  to 
each  prison,  and  if  these  three  were  appointed, 
the  legislature  would  appoint  as  many  more ;  at 
least  there  would  be  nothing  to  prevent  them. — 
And  we  might  as  well  allow  the  whole  question 
to  remain  with  the  governor  and  legislature,  who 
would  manage  the  whole  matter  connected  with 
the  prisons  wisely,  he  did  not  doubt,  and  to  them 
it  belonged  to  do  it.  He  did  not  like  the  idea  of 
electing  officers  of  this  description.  It  would,  in 
the  end  lead  to  very  great  abuses  ;  and  ought  to 
be  inserted  in  the  Constitution. 

Mr.  PERKINS  considered  these  prison  inspec- 
tors to  be  a  department  not  administrative,  but 
governmental  in  its  character,  and  as  such  he  ap- 
prehended, they  should  derive  their  authority  di- 
rectly from  the  people.  Hitherto  there  had  been 
great  complaint  in  relation  to  these  officers,  as  to 
the  manner  of  the  appointment,  and  the  manage, 
ment  of  the  prison.  He  thought  there  should  be 
some  change  made  from  the  present  system. 

Mr.  STETSON  said  the  science  of  prison  dis- 
cipline was  but  in  an  imperil  ct  state,  and  there 
was  as  much  room  for  improvement  there,  as  in 
any  other  science.  To  continue  this  Inspec- 
lion  system,  and  to  make  fixed  and  per- 
manent in  the  Constitution,  would  be  to  prevent 
any  change  which  might  perhaps  become  neces- 
sary. There  were  no  inspectors  in  the  Clinton 
Prison,  and  he  had  never  heard  any  complaint  of 
the  management  there.  There,  the  system  work- 
ed admirably.  As  to  how  the  system  operated  at 
Sing  Sing  and  Auburn,  where  there  were  inspec- 
tors, all  were  aware  of  the  complaints  that  exist- 
ed. He  would  therefore  prefer  to  leave  this  mat- 
ter to  the  legislature,  subject  to  variation  by  the 
advancement  of  the  science  of  prison  discipline, 
rather  than  to  make  it  permanent  in  the  Consti- 
tution. Mr.  S.  went  on  to  urge  that  the  same 
reason  which  would  apply  to  making  the  Prison 
Inspectors  elective,  would  apply  also  to  the 
managers  of  the  Lunatic  Asylum.  He  feared  also 
than  the  chances  would  be  against  a  nominating 
Convention,  called  mainly  for  a  different  and 
more  prominent  object,  acting  with  that  accurate 


535 


knowledge  necessary  for  the  selection  of  a  man  of 
science  to  manage  these  prisons. 

Mr.  PATTERSON  said  that  he  should  prefer 
to  have  three  inspectors,  one  for  each  prison.  As 
to  the  question  of  his  appointment,  whether  elect- 
ive or  by  the  Governor  a:id  Senate,  he  should 
not  argue  that  question  now,  for  he  presumed  thai 
the  mind  of  every  man  was  made  up  as  to  how- 
he  should  vote.  Mr.  P.  thought  in  relation  to  the 
Auburn  orison,  there  was  too  much  power  vested 
in  the  agent — too  much  for  one  man.  He  pre. 
1'erred  rather  to  have  three  inspectors  and  those 
to  be  elected  by  the  people. 

Mr.  MORRIS  believed  that  our  present  state 
prison  system  was  wholly  inadequate,  and  that 
there  was  much  room  for  improvement.  He  was 
therefore  opposed  to  fixing  a  permanent  system 
in  the  Constitution.  From  his  own  observation, 
Mr.  M.  said  he  was  convinced  that  the  results  of 
our  present  system,  was  but  to  increase  crime 
and  to  educate  criminals.  The  prisoners  now  to 
besuie,  were  not  allowed  to  talk  to  each  other, 
but  they  knew  each  other,  and  remembered  each 
other  after  they  1<  ft  the  prison.  During  the  time 
he  was  recorder  of  New  York,  there  was  scarce  a 
prisoner  convicted  of  a  higher  grade  of  crime, 
who  had  not  previously  been  in  the  state  prison. 
And  where  a  new  one  was  caught,  the  commis. 
sion  of  the  crime  was  traced  directly  to  his  asso 
ciation  with  a  previous  convict.  The  present 
state  prison  was  nothing  but  a  school  to  educate 
villains.  A  convict  who  should  leave  there  de- 
termined to  reform,  would  be  traced  out  by  some 
brother  convict  and  be  preyed  upon  and  again  led 
into  the  commission  of  the  crime.  He  trusted  the 
time  was  not  far  distant  when  there  would  be  a 
thorough  reform,  and  when  the  person  convicted 
a  second  time  should  be  banished. 

Mr.  TALLMADGE  again  explained  that  his 
object  in  making  the  motion  was,  that  he  did  not 
desire  to  see  this  loathsome  subject  of  State  Pri- 
sons talked  of,  and  mixed  up  with  other  questions 
at  our  elections. 

Mr.  CHATFIELD  felt  none  of  that  morbid 
sensitiveness  in  talking  about  our  state  prisons, 
which  gentlemen  seemed  to  feel.  He  was  sorry 
human  nature  was  so  bad  as  it  is,  but  it  was  so, 
and  there  must  be  places  of  confinement  of  crimi- 
nals in  order  to  protect  society.  Mr.  C.  alluded 
to  the  almost  unlimited  power  these  inspectors 
possessed  over  the  convicts,  their  influence  as 
the  disbursers  of  large  amounts  of  patronage  and 
of  money,  and  urged  that  therefore  they  should 
be  made  directly  responsible  to  the  people. — 
These  criminals  deprived  as  they  miaht  be,  were 
still  men,  and  should  be  treated  as  such,  and  the 
direct  responsibility  of  the  inspectors  to  the  peo- 
ple would  induce  them  to  see  that  they  were  thus 
treated.  As  to  the  prison  system,  if  it  was  bad, 
there  was  the  more  propriety  in  adopting  some- 
thing better.  This  system  of  election  would  not 
prevent  the  adoption  of  any  improvement  or  ame- 
lioration of  prison  discipline,  but  would  rather 
aid  such  an  advance. 

Mr.  St.  JOHN  moved  that  the  Convention  ad- 
journ. Agreed  to. 

And  the  Convention  adjourned  to  9  o'clock  to- 
morrow morning. 


FRIDAY,  (56th  day,)  August  7. 

Prayer  by  Rev.  Mr.  MILES. 

Mr.  SHEPARD  said  he.  rose  to  a  question  of 
privilege.  He  had  not  troubled  the  convention 
with  any  of  the  mistakes  that  had  occurred  in  re- 
porting his  remarks,  because  in  the  main  he  was 
not  dissatisfied.  But  the  report  in  question  was 
calculated  to  place  him  in  a  false  light  in  refer- 
ence to  a  matter  where  he  was  desirous  that  his 
opinions  should  not  be  misapprehended.  The 
letter  writer  of  the  New  York  Tribune  had  stated 
that  he  (Mr.  S.)  was  opposed  to  the  abolition  of 
the  Inspection  Laws,  and  a  little  farther  down  in 
his  communication  he  had  stated  that  he  (Mr.  S.) 
introduced  an  amendment  providing  for  their  fur- 
ther continuance.  This  exposition  of  his  views, 
and  of  his  amendment,  were  erroneous,  and 
he  believed  -was  mistakabiy  so.  His  view 
was  that  it  was  not  judicious -to  keep  a  con- 
stitutional provision  to  the  effect  thai  no  in- 
spection laws  should  be  established  hereafier. — 
What  mignt  be  the  necessities  of  trade,  they  could 
not  foresee.  These  were  ever  varying  in  their  de- 
tails, though  resulting  from  the  operation  of  the 
same  great  principles,  and  he  would  leave  a  flexi- 
ble rule  that  would  bend  to  the  wants  of  our  com- 
merce, as  those  wanis  might  arise.  But  for  tne 
sake  of  liberty  ot  trade,  he  would  secure,  by  Con- 
stitutional provision,  the  citizen  against  all  com- 
pulsory inspections  of  his  property,  and  he  would 
restrain  any  infringement  of  iiis  light  to  procure 
an  inspection  of  his  properly  by  whomsoever  he 
might  see  fit.  So  he  had  expressed  himself,  and 
so  he  desired  to  be  understood. 

Mr  DANA  presented  a  memorial  from  Madison 
county,  on  the  canal  policy,  piaying  for  the  com- 
pletion of  the  works.  Referred  to  the  committee 
of  the  whole  having  that  subject  in  charge. 

Mr.  WORDEN  offered  the  following  resolution, 
which  was  adopted  : 

Resolved,  That  the  Comptroller  be  requested  to  furnish 
to  this  Convention  a  statement  of  the  amount  oi'salt  duiies 
received  in  each  year  by  the  State  prior  to  the  year  1S17, 
and  the  amount  of  specific  appropriations  out  of  such  du- 
ties, and  the  objects  of  such  appropriations,  and  of  the 
years  in  which  they  were  made.  Also  a  statement  of  the 
nett  amount  of  salt  duties  received  into  the  State  Treasury 
since  the  year  1836.  Also,  a  statement  of  the  amount  of 
auction  duties  received  in  each  year  by  the  State,  prior  to 
the  year  1817.  and  the  amount  of  specific  appropiiations 
out  oi  such  duties,  and  the  objects  of  such  appropriati  ^ns 
and  of  the  years  in  which  they  were  made.  Also  a  state- 
ment of  the  nett  amount  of  auction  duties  received  in  each 
year  by  the  State  since  the  year  1836. 

In  reply  to  a  question  of  Mr  TOWNSEND, 
Mr.  W.  remarked  that  the  Comptroller  had  already 
reported  the  amount  received  between  the  years 
1  SI 7  and  1836. 

STATE  OFFICERS. 

The  Convention  then  proceeded  to  the  conside- 
ration of  the  report  of  committee  No  6. 

The  question  was  upon  striking  out  the  section 
which  authorises  the  election  by  the  people  ol 
three  inspectors  of  the  State  prisons. 

Mr.  LOOMIS  wished  to  know  how  could  these 
three  inspectors  better  remedy  the  evils  com- 
plained of  than  the  present  officers  of  the  State 
prison  ?  Is  it  contemplated  that  these  men  should 
reside  at  the  prison,  and  one  to  be  at  each  prison? 
If  so,  you  will  only  supply  the  place  of  the  pre- 
sent keeper.  Are  they  to  be  travelling  400  miles 
from  one  prison  to  another,  on  a  continual  cir- 


536 


cult  ?  If  they  do,  they  will  not  be  equal  to  every 
contingency.  If  they  are  to  make  laws  to  regu- 
late the  prison,  they  must  meet  and  confer.  Per- 
sons could  be  'found  residing  near  these  prisons, 
who  would  cheerfully  devote  their  attention  to 
these  prisons  for  a  small  compensation.  The 
great  trouble  is,  these  inspectors  have  mainly  the 
appointment  of  all  the  prison  officers.  That  cre- 
ates the  main  difficulties.  Take  these  executive 
powers  away  from  them  and  let  there  be  local 
inspectors  to  provide  rules  and  regulations  only 
for  the  government  of  the  prison  and  the  improve- 
ment of  the  prisoners.  But  he  wanted  no  such 
provision  inserted  in  the  Constitution ;  for  this 
was  a  matter  of  mere  legislation,  and  public 
opinion  was  yet  by  no  means  matured  on  this  sub- 
ject of  prison  discipline.  The  present  inspectors 
are  paid  less  than  the  three  new  ones  proposed. 
He  saw  nothing  but  evil  in  this  proposition ;  and 
he  was  opposed  to  incorporating  any  provision 
connected  with  the  prison  system,  in  the  Consti- 
tution. 

Mr.  PERKINS  said  the  cure  of  lunatics  was 
much  in  advance  of  the  cure  of  the  moral  disea- 
ses of  thieves  ;  but  this  has  been  done  by  private 
competition,  among  the  proprietors  of  Lunatic 
Asylums.  If  we  could  get  a  remarkable  expert 
to  cure  thieves  as  cleverly  as  they  did  madness, 
why  he  hoped  that  this  expert  would  be  obtained 
and  sent  to  the  State  prisons  to  cure  thieves.  He 
did  not  know  but  that  the  old  nurses — the  old 
women  in  the  Asylums  cured  the  crazy  men 
first  rate  ;  whether  these  old  women  were  good 
old  nursing  politicians  or  no,  he  could  not  tell. 
But  he  knew  that  most  of  the  inspectors  of  the 
State  prisons,  at  present  were  old  nursing  politi- 
cians. He  did  not  know  whether  the  people  had 
not  been  humbugged  by  the  keeper  of  the  Clinton 
State  prison  or  not  about  the  quantity  of  ore  to 
be  found  there  or  not.  But  the  sums  expended 
for  building  all  these  prisons  had  been  so  large 
that  it  was  necessary  to  have  three  disinterested 
inspectors  like  those  in  the  report  to  look  after 
those  matters.  Great  reformation  was  wanted  in 
this  matter.  Will  you  do  it  ?  He  could  not  see 
that  the  election  of  these  inspectors  would  at  all 
interfere  with  the  adoption  of  any  new  or  impro- 
ved system.  The  present  system  with  local  boards 
surrounded  by  various  influences  and  having  much 
patronage  was  decidedly  objectionable. 

The  motion  to  strike  out  was  lost — ayes  30, 
nays  61. 

Mr.  STETSON  then  moved  that  the  three  man- 
a°-ers  of  the  Lunatic  Asylum  at  Utica  shall  be 
efected  by  the  people,  so  as  to  harmonize  with  all 
the  other  parts ;  in  like  manner  and  with  like 
powers,  and  also  the  Health  Commissioners  in 
New-York.  He  did  this  to  destroy  the  great  cen- 
tral power  here. 

Mr.  UHATblELD  Inked  what  the  gentleman 
wanted  to  do  by  electing  these  officers  ?  Did  he 
want  to  take  the  Lvmalic  Asylum  in  charge. 

Mr.  8TKTSON:  This  w.,s  built  with  the  pub 
lie  money;  it  is  a  State  institution;  there  was  a 
great  de'al  of  patronage  connected  with  it;  and 
this  iremend.  us  central  j  owrr  at  Albany  should 
be  roofed  out.  And  he  hoped  ihis  would  be  done. 
The  people  were  as  capable  of  judging  who  was 
fit  for  this  office  as  for  any  other, 

Mr.   PERKINS  moved  to  add  after  the  word 


'therein"  the  following: — "Subject  to  such  re- 
gulations as  maybe  provided  bv  law."  Agreed  to. 

The 5th  section  was  then  read. 

Mr.  CHATF1KLD  moved  to  amend  so  as  to  re- 
store the  words  "  State  Engineer  and  Surveyor" 
in  the  5th  and  7fh  section.  It  was  agreed  to. 

Mr-  WORDEN  moved  to  amend  the  5th  section; 
but  withdrew  it  for  the  present. 

Mr.  MARVIN  moved  to  strike  out  the  whole 
section.  (It  related  to  the  Canal  Board,  &c.) — 
He  wished  all  this  matter  left  to  the  Legislature; 
leave  it  where  it  always  has  been,  and  nofiomake 
it  a  Constitutional  provision. 

Mr.  CHATFIELD  wanted  these  high  officers  to 
be  elected  by  the  people — to  be  subservient  only 
to  the  control  of  the  Legislature.  He  would 
not  have  the  control  of  these  funds  at  all  within 
the  power  of  the  legislature.  If  they  should  find 
a  Board  that  was  impracticable  they  might  abol- 
ish it. 

Mr.  MARVIN  had  no  objection  to  the  present 
organization.  But  it  might  be  advisable  to  change 
it  hereafter,  and  it  had  better  be  left  where  it  was 
a  statutory  provision. 

The  motion  of  Mr.  MARVIN  was  negatived. 

Mr.  WORDEN  offered  the  following  as  §  6  : 

^6.  The  powers  and  duties  of  the  Commissioners  of  the 
Land  Office  of  the  Canal  Fund,  the  Canal  Commissioners, 
and  the  Canal  Board,  shall  be  prescribed  and  regulated  by 
law. 

Mr.  WORDEN  explained  his  design  in  offering 
this  section.  These  Commissioners  had  the  con- 
trol of  large  sums  of  money.  In  past  years,  it 
amounted  to  between  $1,000,000  and  $2,000,000, 
and  sometimes  has  run  up  to  $3,500,000.  It  may  be 
proper  at  some  time  hereafter,  to  require  security 
of  the  officers.  It  had  not  been  thought  neces- 
sary heretofore.  He  only  desired  to  confer  upon 
the  legislature  power  to  regulate  this  whole  mat- 
ter as  they  might  find  it  to  be  necessary. 

Mr.  KIRKLAND  said  he  did  not  attain  his 
objectto  put  it  in  the  power  of  legislature  to  obtain 
security  from  each  of  these  persons  individually  ; 
it  would  only  prescribe  what  these  persons  should 
do  in  their  collective  capacity  ;  and  the  legisla- 
ture have  now  the  power  to  prescribe  their  du- 
ties and  require  them  to  take  security.  And  if 
this  is  required  it  is  quite  as  proper  to  have  it  in- 
serted that  the  legislature  shall  have  power  over 
each  one  of  these  individually.  This  amendment 
would  not  allow  the  legislature  to  require  secu- 
rity from  those  officers.  He  supposed  that  the 
legislature  had  now  all  the  power  which  would 
be  conferred  by  this  proposed  section,  and  it 
would  be  entirely  a  work  of  supererogation  to 
adopt  it.  The  legislature,  if  they  were  allowed  to 
prescribe  the  powers  and  duties  of  these  boards 
collectively,  would  also  have  control  over  them 
individually  ;  and  might,  if  they  chose,  require 
them  to  give  security. 

Mr.  WORDEN  wanted  it  inserted  in  the  Con- 
stitution that  these  individuals  shall  be  controlled 
by  the  L^gislaiuie  in  every  respect.  Arid  if  his 
friend  troin  Oneida  (Mr.  KIRKLAND)  was  right, 
then  this  section  could  do  no  harm.  These  bodies, 
deriving  their  powers'  from  the  Constitution,  might 
claim  that  ihe  Legislatuie  had  no  control  whatever 
over  them.  This  was  a  disputed  question,  and  he 
wanted  it  asseited  positively  in  the  Constitution, 
that  the  Legislature  had  this  power,  or  should  have 


537 


it.  This  was  much  better  in  order  to  prevent  dis- 
putes of  any  kind  from  arising  hereafter.  It  could 
do  no  harm  and  might  do  much  good 

Mr.  KIRKLAND  said  these  Canal  Commis- 
sioners are  now  required  to  give  bail  in  $'20,000. 
And  yet  as  may  be  seen  by  the  law,  they  are  pro- 
hibited from  holding  over  $10,000  at  any  one 
time. 

Mr.  WORDEN  had  not  denied  that.  He  re- 
ferred to  the  Commissioners  of  the  Canal  Fund. 
Mr.  R.  CAMPBELL  jr.  further  objected  that  this 
would  require  the  legislature  to  re-enact  all  the 
laws  now  in  existence  on  these  subjects. 

Mr.  BAKER,  to  obviate  this  objection,  moved 
to  amend  by  inserting  before  "prescribed  by  law" 
in  Mr.  WORDEN'S  amendment,  the  words  "  as 
they  now  are  or  hereafter  may  be." 

Mr.  VAN  SCHOONHOVEN  said  that  the  le- 
gislature having  full  control  whenever  the  Con- 
stitution did  not  expressly  forbid  them  to  act,  that 
therefore  this  provision  was  wholly  unnecessary. 

After  some  further  debate,  by  Messrs.  WOR- 
DEN, LOOMIS,  SALISBURY  and  VAN 
SCHOONHOVEN, 

Mr.  BAKER,  to  obviate  still  another  objection 
which  he  had  urged,  moved  the  following  substi- 
tute for  the  section  of  Mr.  WORDEN. 

The  powers  and  duties  of  the  respective  boards,  and  of 
the  several  officers  in  this  article  mentioned,  shall  be 
such  as  now  are  or  hereafter  may  be  prescribed  by  law. 

This  was  accepted  by  Mr.  W.,  and  adopted, 
ayes  36,  nays  30. 

Mr.  PERKINS  moved  a  reconsideration  of  the 
vote  on  the  second  section,  for  the  purpose  of  mo- 
ving a  substitute.  He  thought  there  should  be 
some  general  provision  for  the  removal  of  officers 
elected  by  the  people.  So  far  as  his  observation 
extended,  financial  officers  of  the  various  states, 
and  of  the  United  States,  were  appointed  either 
by  the  Governor  and  Senate  or  by  the  legislature, 
and  were  thus  amenable  to  some  power. 

The  CHAIR  informed  the  gentleman  that  he 
was  not  in  order,  a  re-consideration  requiring  a 
day's  previous  notice. 

Mr.  PERKINS  would  vary  his  motion  so  as  to 
be  in  order.  He  would  move  his  amendment,  as 
follows,  as  an  additional  section  to  the  article  : 

The  Governor,  Lieut.  Governor  and  Chief  Justice  of  the 
Court  of  Appeals,  shall  constitute  a  commission  ior  hearing 
and  investigating  all  suspicions  and  charges  of  embezzle 
ment,  fraud,  oppression,  gross  neglect,  or  other  malversa- 
tion in  office,  oi  all  officers  (except  judicial)  whose  pow- 
ers and  duties  are  not  local,  and  who  shall  be  elected  at 
general  elections.  They  shall  have  power  at  all  times  to 
compel  the  attendance  of  witnesses  and  the  production  of 
papers;  to  examine  books,  accounts,  acts  and  omissions  of 
such  oiiicers.  They  may,  under  such  regulations  as  shall 
be  prescribed  by  law,  remove  such  officers  and  appoint 
others  in  their  places,  but  beiore  any  such  officer  shall  be 
removed,  he  shall  be  furnished  with  a  copy  of  the  charges 
made  against  him,  and  be  heard  in  his  defence.  Upon  the 
removal  of  any  such  officer,  a  copy  of  the  charges  and 
the  evidence  taken  in  support  of  the  same,  shall  be  tiled  in 
the  office  of  the  Secretary  of  State.  Officers  appointed  by 
any  body  or  board  ol  public  officers  may  be  removed  under 
such  regulations  as  may  be  prescribed  by  law. 

Mr.  P.  supported  his  amendment.  Some  pro- 
vision more  stringent  than  impeachment  was  ne- 
cessary to  secure  the  proper  operation  of  the  Con- 
stitution in  this  respect.  There  had  been  no  case 
of  impeachment  ever  attempted  in  this  state  with- 
in his  recollection,  although  members  of  the  le- 
gislature have  been  expelled  for  malversation,  and 

42 


this  because  of  the  expense  of  the  impeachment 
and  its  delays.  Mr.  P.  at  some  length  pointed 
out  the  advantages  that  would  result  from  the 
adoption  of  the  principle  involved  in  his  amend- 
ment, as  contrasted  with  the  inadequateness  of 
the  section  as  it  now  stood. 

Mr.  PATTERSON  suggested  that  this  amend- 
ment would  conflict  with  the  section  allowing 
the  governor  alone  to  suspend  the  state*treasurer, 
until  the  meeting  of  the  legislature.  In  order  to 
afford  time  for  examination,  he  would  suggest  that 
the  report  and  amendment  should  be  laid  on  the 
table  and  printed. 

Mr.  PERKINS  was  willing  to  accede  to  any 
course  that  the  Convention  might  determine  in 
regard  to  it. 

Mr.  PATTERSON  urged  that  from  the  num- 
ber and  complicated  character  of  the  amendments 
that  had  already  been  adopted,  that  the  report 
should  be  printed  before  action  was  had  upon  the 
amendment  of  Mr.  P.  He  made  that  motion. 

The  motion  was  agreed  to. 

Mr.  VAN  SCHOONHOVEN  laid  on  the  table 
a  reconsideration  of  the  section  proposed. 

RIGHTS  AND  PRIVILEGES  OF   THE  CITIZEN. 

The  Convention  then  went  into  committtee  of 
the  whole,  Mr.  MARVIN  in  the  chair,  on  the  un- 
finished business,  being  the  report  of  committee 
No.  11. 

The  first  section,  as  follows,  Being  under  con- 
sideration : 

^  1.  Men  are  by  nature  free  and  independent,  and  in  their 
social  relations  entitled  to  equal  rights. 

The  question  pending  was  on  the  motion  of  Mr. 
BASCOM  to  insert  the  words  *'  and  political"  af- 
ter the  word  4<  social"  in  the  second  line  of  the 
first  section, 

Mr  TALLMADGE,  as  the  chairman  of  the  com- 
mittee  number  eleven,  made  a  general  explana- 
tion of  the  provisions  of  this  article.  He  said  it 
was  discussed  in  committee  with  great  freedom, 
and  the  majority  agreed  to  every  section  j  and  the 
out-voted  minority  yielded  with  good  temper.  He 
commended  the  spirit  in  which  the  committee  had 
conducted  its  deliberations.  He  said  at  the  open- 
ing of  the  business  of  the  committee  there  was 
presented  to  it  the. bill  of  rights,  consisting  of 
nearly  three  pages  of  the  Revised  Laws;  but  the 
committee  thought  that  matter  had  better  be  left 
untouched  by  this  Convention.  The  majority  had 
inserted  the  two  first  sections,  which  were  mere 
abstractions,  which  might  be  rejected  without  in- 
jury to  the  aiticle.  At  the  proper  time,  he  should 
move  to  strike  out  those  sections.  The  third  sec- 
tion had  been  altered  simply  by  striking  out  the 
words  "  or  the  judgment  of  his  peers."  He  poin- 
ted out  those  sections  which  were  incorporated 
into  the  constitution  of  1777,  and  afterwards  into 
that  of  1821  from  Magna  Charta,  which,  for  the 
benefit  of  the  lay  member*,  he  explained  to  betha 
charter  of  British  liberties  which  was  wresttd 
from  the  despotism  of  the  Sovereign,  by  the  Bar- 
ons, in  1215,  the  great  epoch  of  British  freedom, 
and  the  commencement  of  the  freedom  now  en 
joyed  in  the  civilized  world.  He  mentioned  the 
fact  that  this  historical  event  was  commemorated 
by  a  monument  on  the  road  leading  from  London  to 
Windsor  Castle,  a  simple  inscription  of  the  rnemor. 
able  period  being  preserved  on  a  boulder  stone.  Af  • 


538 


tera  period ot  nearly  6l)0  years  had  elapsed,  cam 
the  declaration  of  independence  ot  this  country  as 
result  of  the  first  declaration  ot  independence — 
Magna  Charta— and  hence  he  justified  the  inco 
poration  of  this  section  in  our  constitution.  H 
said  it  might  he  pie  sing  to  see  the  progress  o 
time  in  liberal  principles;  by  turning  to  sectio 
three,  which  was  as  follows: 

•'  No  melfiber  of  this  State  shall  be  disfranchised,  or  de 
prived  of  the  rights  and  privileges  secured  to  any  citize 
thereof,  unless  by  the  law  of  the  land." 

And  then  to  section   13,   of  the  constitution  o 
1777,  the  difference  would  be  seen.     In  the  lat 
ter  the  citizens  were  spoken  of  as  the  "  subjects 
of  this  State,  showing  at  that  time  they   had  no 
got  the  phrases  of  liberty.     The  words  which  th 
committee  had  striken  out  "  or  the  judgment  c 
his  peers,"  the  committee  thought  an  unmeaninj 
phrase,  which  if  reported  now  would   bespeak 
distinction  which  we  do  not  recognise.  Heshoulc 
however  hereafter  move  an  amendment  of  the 
section  by  striking  out  the  words  "  unless  by  the 
law  of  the  land,"  and  insert  a  substitute  which  he 
had  prepared,  to  restrain  the  legislature  in  its  ac 
tions  on  individual  rights.     He  next  passed  to  tht 
4th  section,  which  guaranties  the  trial  by  jury. — 
The  old  section  the  committee  had  altered  by  in 
troducing  the  words  "  right  of"  before  the  word: 
"  trial  by  jury  ;"  the  object  being  to  enlarge   th< 
expression,  but  from  the  views  of  the  committee, 
he  expressed  his  dissent.     He  also  expressed  his 
belief  that  the  system  might  be  rendered  less  op- 
pressive on  jurors;  by  diminishing  the   number 
required  in  the  trial  for  certain   cases.     Passing 
on  to  the  9th  section,  he  pointed  out  an  addition 
which  the  committee  had  made  to  secure  to  a  par- 
ty on  trial  the  right  "  to  appear  in    person  and 
with   counsel."      This   was  found   necessary  in 
consequence     of   certain    ancient   judges    hav- 
ing   prohibited     an    accused    party    appearing 
in    person  when    he    appeared    by    council. — 
The  rotmnittwe  thought  a  person  on   trial  should 
be  allowed  to  take  part  in  his  defence  even  when 
aided  by  counsel.     The  addition  in  the  12th,  13th 
and  14th  lines  he  explained  to  be  necessary,  illus- 
trating it  by  an  example   from    proceedings  in  a 
case  of  usury.     The  words  introduced  were  '*  nor 
in  any  case  to  subject  himself  to  a  penally  or  for- 
feiture, or  any  l«ss  or  deprivation  in  the  nature  ot 
a  penalty  or  forfeiture,"  v\hich  were  inserted  after 
the  words.  "  no  person  shall  he  subject  to  be  com- 
pelled   to  be  a  witness   against    himself    in   any 
ciiminal  case.''     He  said  no  man  should  be  com- 
pelled to  be  put  in  peiil  even  in  the  capacity  o!  a 
witness.     The  tenth  section  relates  to  the  trial  by 
jury.     He  recounted  the  struggles  recorded  in  his. 
lory  to  obtain  the  treedom  ot  the  press,  from  a  pe- 
riod anterior  to  the  publication  of  Junius'   letters 
and  the  mobs  ol  London,  coming  down  to  the  ef- 
forts of  Fox,  the  British  statesman,  and  to  the  ar- 
guments of  Hamilton  and  Spencer  in   this   capitol 
on  the  trial  tor  libel  of  Mr.    Croswell.   father   of 
one  of  the  reporters  of  this  Convention,  when  the 
great  Hamilton  put  forth  all  his  mighty   energies 
to  des'roy  the  old  and  now  exploded  maxim,  "  the 
greater  the  truth,  the  greater  the  libel.8'    In    the 
Convention  of  1881,  the  article  in  relation  to  li 
bel     was    incorporated    into     our     Constitution, 
which    allowed    the    truth   to    be  given  in  evi 
dence  to  the  jury,  they  to  judge  of  the  law  and 


the    fact.     He    considered    that    section    as   the 
proudest  monument   of  liberty   we   possessed. — 
But  in   the   recent  cases  ot    libel    in  which    Mr. 
Cooper  had  been  engaged,   circumstances  had  oc- 
curred, which  showed  a  necessity  for  the  amelioi  a- 
tionottheiaw   of  libel.       The"  committee  were 
unanimous   in  favor    of  such    amelioration,  but  a 
majority   out- voting  him    had  inserted  the  woids 
"and  in  civil  actions."     Mr.  T.  had  differed  trom 
them,  not  because  he  was  opposed  to  amelioration 
but  because  he  feared  this  would  abridge  the  priv- 
ileges of  the  defendant.     He  gave  his  view  sot  the 
operation  of  this  amendment,   remarking  that  he 
believed    the  section   was   broad    enough    in  the 
present   Constitution.      But    any   member   who 
could  suggest  an    amendment  that    would  secure 
all  the  privileges  of  the  citizen  in  this  particular, 
should  have  his  support.     The  llth  section  which 
relates  to  the  taking   of  private   property  for  pub- 
lic use,    had  been    amended   by    a  provision  that 
the  legislature  shall    provide   for  determinir.g  the 
damage  where  the  property  is  taken  for  the  use  of 
the  state.      Also,   that   the   legislature  may  pro- 
vide  for  the  opening   of  private  roads   in  case  a 
iury  of  freeholders   shall  deteinaine  the  road  nec- 
essary.    The  committee  had  also  provided,  to  ob- 
viate the  complaints   now   made   of  inability  to 
obtain   compensation    after  it  has  been    assessed 
and    execution    issued,    that    the    compensation 
shall   be    ''first   made    therefor,"    so    that    lime 
vould  not  be  lost  and  expense  incurred  in  use- 
ess  litigation.     The  provision  in  relation  to  pri- 
vate  roads    was   made  to   guard,  by  the  Consti- 
tution, against   what  was  deemed  an    erroneous 
principle  which   had    been    established  by  a  re- 
cent decision  of  the  Supreme  Court,  as  found  in 
Hill's  reports.    Mr.  T.  next  came  to  the   12th 
section,  which   prohibits  the  imprisonment  of 
witnesses    in   criminal    cases.     The  committee 
vere  unanimous  in  this".     He   pointed   out    the 
gross  wrongs  now  perpetrated.     In  point  of  truth, 
witnesses  entering  complaints   were  imprisoned 
more  days  than  the  persons  accused  by  them  of 
crime.     If  the  witness  was  transient,   or  unable 
o  give  bail,   the   magistrate   imprisoned  him. — 
nhen  came  the  long  delays  of  the  law,  the  poor 
witnesses  in  the  meantime  suffering  in  jail,  with- 
out a  friend  to  help  or  pity.     Mr.  T.   referred 
o  the  laws  authorizing  such  commitments.     He 
vould  not  impugn  the  motives  of  the  magistrates 
rvho  had  acted   under  this   law.     Now  for   the 
>ractice.     These  gentlemen   rogues  were  an  or- 
anized  corps,   and  came  to  the  rescue  of  each 
ther.     They  knew  the  laws  much   better  than 
ounsel,  and    honest  men  who  paid   their  debts 
nd  staid    at   home.      Residents   of  New   York 
nd  the  other  large  cities  would  go  unharmed  — 
lut  the  traveller  from  a  distance,  when  crossing 
he  ferry  to  New- York,  was  almost  sure  to  lose 
is  pocket-book,  unless  he  kept  his  hand  on  it 
ontinually.     Now  for  the   result.      The  pick- 
ocket  hands  the  pocket-book  to   a  confederate, 
/ho  is  ready  to  go  his  bail.     But  the  poor  non- 
esident,  who  has  been  robbed,   has  no  friends, 
nd  he  must  go  to  jail,  while  the  robber  is  at  large, 
eing  bailed  by  his  accomplice,  who  holds  the 
ocket-book  in  pledge.     That  was  one  beautiful 
jeration  of  our  present  criminal  jurisprudence, 
"r.  T.  would  cite  one  or  two  of  the  many  in- 
ances  of  gross  outrages  which  had  been  com- 


539 


tnitted  under  this  clause  authorizing  the  impris- 
onment of  witnesses.  Three  villians  committed 
a  rape  upon  a  woman,  just  north  of  the  city  of 
Albany,  in  what  are  called  the  Patroon's  woods. 
She  was  a  cook  upon  one  of  the  canal  boats, 
and  was  therefore  considered  by  the  magistrate 
a  transient  person;  and  upon  her  entering  com- 
plaint against  the  villians,  she  was  committed  to 
the  jail  in  this  city,  while  the  rascals  were  ena- 
bled to  obtain  bail,  and  had  never  been  brought 
to  trial.  That  poor  woman  lay  in  jail  fifteen 
months,  and,  until  through  the  intervention  of 
himself,  as  chairman  of  this  committed,  she  was 
at  length  set  at  liberty.  Not  only  was  our  state 
disgraced  with  such  a  law,  but  he  would  refer 
to  similar  scenes  in  other  states.  In  Baltimore, 
a  rape  was  committed  by  eight  desperate  vil- 
lains upon  a  poor  German  girl,  who  had  been 
but  a  short  time  in  that  city.  She  was  in  com- 
pany with  her  cousin,  who  strove  all  in  his  pow- 
er to  protect  her  from  outrage,  and  was  himself 
badly  beaten.  Behold  the  result  The  poor  girl 
and  her  protector  were  imprisoned,  while  the 
eight  villains  obtained  bail,  and  were  at  large. — 
Eighteen  months  passed  by  before  one  of  them 
was  brought  to  trial ;  and  during  all  this  time  the 
poor  witnesses  were  compelled  to  associate  in  jail 
with  rof»ies  and  felons.  The  one  tried  was  con- 
victed, but  after  three  or  four  day's  imprison- 
ment he  was  pardoned.  The  witnesses  were 
still  left  in  jail,  until  rescued  by  the  German  So- 
ciety, when  the  city  of  Baltimore  paid  the  young 
man  $100  and  the  girl  $50,  for  the  detention  of 
eighteen  months.  The  13th  section  relates  to  im- 
prisonment for  debt,  &c.,  the  committee  deeming 
it  proper  to  maltf;  it  a  constitutional  provision. — 
But  if  it  werr  deemed  proper,  to  leave  it  to  the 
legislature,  this  section  could  be  stricken  out. — 
The  14th  section  relates  to  the  rights  of  married 
.women,  which  he  explained  at  some  length;  al- 
so the  nature  of  the  marriage  contract,  as  viewed 
at  different  periods  and  in  different  countries. — 
The  latter  sections  of  this  article,  he  said  it  was 
not  necessary  to  explain,  inasmuch  as  they  were 
taken  from  the  old  constitution. 

The  question  recurred  on  the  amendment  pro- 
posed by  Mr.  BASCOM,  to  insert  the  word  "  po- 
litical and"  before  "  social" — so  that  it  should 
read, 

"  Men  arc  by  nature  free  and  independent,  and  in  their 
political  and  social  relations  entitled  to  equal  rights." 

Mr.  BASCOM  said  he  hoped  that  after  the  elo- 
qn^nt  exposition  of  the  venerable  chairman  of  the 
committee,  it  would  not  be  necessary  to  say  a 
word  in  favor  of  so  simple  and  self-evident  pro- 
position as  that  men  were  entitled  to  equal  po- 
litical rights.  We  derived  our  right  to  sit  here, 
we  derived  all  our  political  rights  from  their  fear- 
less publication  by  the  Declaration  of  Indepen- 
dence. If  the  time  had  come  when  such  a  body 
of  men  as  this  feared  to  say  that  the  political 
rights  of  men  were  equal,  for  one  he  desired  to 
know  it.  To  ascertain  whether  this  was  so,  was 
one  of  his  purposes  in  offering  the  amendment 
that  had  produced  so  much  sensation.  He  should 
embrace  the  opportunity  that  this  section  afforded 
to  express  his  opinion  by  his  vote  unless  by  the 
arbitrary  application  of  rules  of  order  he  should 
be  prevented,  and  he  intended  gentlemen  who 
dared  to  vote  that  men  were  not  entitled  td  equal 


political  rights  should  have  the  opportunity. 

The  motion  of  Mr.  BASCOM  was  negatived — 
ayes  33,  noes  42. 

Mr.  BURR  moved  as  a  substitute  for  the  first 
section  the  following : — 

Men  are  created  equal  and  are  endowed  by  their  Cre- 
ator with  certain  inalienable  rights,  among  which  are  life, 
liberty  and  the  pursuit  of  happiness." 

The  CHAIR  said  this  was  not  then  in  order. 

Mr.  BAKER  moved  to  strikeout  the  word  "so. 
cial"  and  insert  "  political"  Agreed  to. 

Mr.  CROCKER  moved  as  a  substitute  for  the 
first  section  the  whole  of  the  first  clause  of  the 
Declaration  of  Independence. 

A  VOICE:  Why  not  move  to  insert  the  whole 
Declaration  of  Independence? 

Mr  LOOMIS  here  raised  a  point  of  order  which 
he  wished  to  have  decided  for  the  government  of 
the  Convention  hereafter.  He  insisted  that  a  mo- 
tion to  strike  out  had  precedence. 

The  CHAIR  decided  to  the  contrary. 

Mr.  LOOMIS  appealed  from  this  decision. — 
After  some  conversation  on  the  point  of  order,  the 
decision  ot  the  Chair  was  sus'ained. 

Mr.  HOFFMAN,  did  not  believe  that  what 
could  justly  be  called  abstractions,  should  be  plac- 
ed in  the  Constitution.  Some  matter  that  could 
be  applied  to  practice  would  be  better.  He  had 
supposed  that  this  section  was  not  an  abstraction, 
but  meant  something.  In  every  government  there 
was  danger  that  the  class  which  may  with  pro- 
priety be  called  the  non-governing  class.,  may 
have  a  class  of  laws  applied  to  them,  which  the 
governing  class  would  not  enact  for  themselves. 
In  other  countries  this  had  been  so  common  that 
it  would  be  extraordinary  to  find  in  any  instance 
that  the  governing  class  have  laid  down  the  same 
rule  for  themselves,  as  for  the  others.  In  this 
county  the  practice  had  in  general  been  the  oth- 
er way.  In  some  of  the  States  of  this  Union  how- 
ever, the  rule  has  not  been  so  closely  observed, 
and  there  has  been  a  time  in  the  history  of  this 
State  when  the  rule  had  no  application,  and  the 
voting  classes  had  sometimes  applied  to  those  who 
were  not  voters,  a  rule  which  they  would  not 
have  applied  to  themselves.  In  another  part  of 
the  report,  attention  is  called  to  a  single  class  of 
cases  of  the  kind.  By  the  common  law,  a  woman 
was  a  human  being  entitled  to  dower,  if  she  could 
stand  out  and  resist  its  conveying  away  under 
such  chastisement  with  a  rod  of  moderate  size,  as 
the  husband  might  choose  to  inflict  upon  her.  By 
the  introduction  of  the  Roman  civil  law,  the  court 
of  chancery,  after  about  three  hundred  years  of 
labor,  contrived  to  a  considerable  extent  to  re- 
store a  married  woman  or  those  who  might 
thereafter  be  married,  to  the  condition  of  a  human 
being,  giving  her  some  rights  of  property,  real 
and  personal,  and  some  powers  of  government 
and  administration  over  it,  under  the  regulation 
of  trustees.  In  1830,  in  the  revision  of  the  laws 
of  the  State,  the  legislature  whether  by  design  or 
accident  is  not  now  material  to  enquire,  substan- 
tially brought  back  a  woman  to  her  condition  un- 
der the  common  law — that  of  a  human  being  en- 
titled to  dower  if  she  could  resist  such  a  flagella- 
tion with  a  rod  ot  moderate  size  as  her  lawful 
husband  should  apply  to  her.  At  the  ensuing 
session,  the  legislature,  to  some  limited  extent, 
consented  to  the  exercise  of  trustees  for  the  benefit 


540 


of  married  women.  But  it  was  to  a  very  limi- 
ted extent  indeed,  and  entirely  unequal  to  the 
wants  of  a  highly  civilized  society.  When  he 
read  this  clause,  he  supposed  it  was  inserted 
here  to  assert  in  strong  and  plain  terms  the 
principle  that  the  non-voting  classes  in  this 
State  should  hold  their  rights  under  the  same 
laws  as  those  who  are  are  voters,  and  he  would 
submit  that  if  the  sentence  could  be  made  expres- 
sive of  such  opinion,  it  would  be  of  great  practi- 
cal use.  He  had  alluded  to  one  of  the  instances 
where  the  rights  of  non-voters  have  been  invaded, 
but  there  were  others  to  which  he  begged  leave 
lo  call  attention,  equally  requiring  the  establish- 
ment of  this  rule.  We  are  a  highly  commercial 
people,  and  we  design  to  be  the  broker,  the  me- 
chanic, the  carrier,  so  lar  as  we  can,  for  every 
part  of  this  great  union.  Often,  very  often,  to 
immense  amounts,  the  rights  of  property  of  those 
who  are  not  voters  must  be  committed  to  our 
charge,  and  under  the  jurisdiction  of  our  laws. — 
Was  it  not  best  for  us  then,  if  we  could  do  so,  in- 
stead of  making  an  abstraction  of  this  clause  to 
make  it  a  practical  rule.  So  that  all  property  in 
this  situation  confided  to  us,  while  it  is  here, 
should  be  held  and  protected  precisely  as  it 
would  be  if  it  was  the  property  ot  resident  citi- 
zens and  voters.  Would  we  not  in  this  matter 
correct  all  temptations  at  times  to  force  unnecessa- 
ry taxation  upon  it,  to  the  injury  of  oui  commerce 
and  trade?  Was  it  not  worth  while  then,  instead  of 
regarding  the  section  as  an  abstraction,  to  be 
amended  by  some  other  abstraction,  to  adopt  some 
practical  rule,  asser'ing  the  principle  he  had  re- 
ierred  to?  He  had  supposed  that  such  was  the  in- 
tention  of  introducing  the  clause. 

Mr  BRUCE  hoped  this  section  would  not  be 
stricken  cut.  It  had  been  called  an  abstraction. — 
Was  it  an  abstraction  to  say  that  we,  in  this  free 
government,  were  entitled  to  the  enjoyment  of 
our  rights?  After  the  toil  and  struggle  of  our 
Forefathers  in  the  Revolution,  had  it  corne  to  pass 
in  this  late  day  that  the  principles  which  they 
put  forth  were  nothing  but  abstractions?  He 
trusted  not,  but  that  the  amendment  now  pending 
would  be  adopted. 

Mr.  CHATFIELD  said  that  the  section  as  it 
stood,  and  the  amendment  to  it,  were  not  quite 
perfect;  he  would  like  to  see  a  small  amendment. 
True,  it  might  be  a  matter  of  taste  (laughter)  but 
he  wished  it  to  express  what  was  intended.  He 
would  have  added  after  the  word  "  rights"  the 
words  "  without  regard  to  color." 

Mr.  O'CONOR:  Will  the  gentleman  accept 
an  amendment  to  that  or  an  addition,  viz  :  the 
words  "  age  or  sex .'"  [Laughter.] 
Mr.  CHATFIELD  •  Oh,  certainly. 
Mr.  WORDEN  said  that  this  amounted  to  the 
recognition  of  a  principle  that  no  man  dare  to  de- 
ny, but  it  was  of  no  practical  use.  It  protected 
no  one,  and  there  was  nothing  practical  or  opera- 
tive in  it.  And  he  submitted  whether  it  was  not 
best  to  strike  out  both  sections  instead  of  engraft- 
ing abstractions  upon  the  Constitution.  When 
they  came  to  practical  questions,  he  would,  to  the 
best  of  his  ability,  aid  in  giving  effect  to  this  great 
principle. 

Mr.  CROOKERsaid,  that  in  offering  the  amend- 
ment now  under  consideration,  he  had  not  design- 
ed to  say  a  single  word  in  support  of  it.  He  de- 


sired to  offer  it,  in  order  that  he  might  in  Conven- 
don  have  an  opportunity  to  bring  it  to  a  direct  and 
formal  vote.  He  should  not  now  have  arisen,  but 
for  the  course  of  remarks  pursued  by  several  mem- 
bers of  the  Convention.  They  had  denou  need  this- 
amendment  as  an  abstraction.  And  had  it  come 
to  this  ?  Was  this  amendment  indeed  a  "  mere 
abstraction  ?"  Sir,  (said  Mr.  C.)  the  author  of  the 
language  of  that  amendment  received  the  highest 
regard  and  respect  of  the  age  gone  by.  Very  many 
at  this  day,  who,  in  by-gone  times,  entertained 
but  little  regard  for  him  when  in  life,  are  now 
foremost  in  shouting  applause  to  his  memory. — 
Much  has  been  said  in  praise  of  the  act  of  the 
Barons  of  England,  atRunnymede,  when  they  ex- 
torted from  the  British  monarch  the  Magna  Charta 
of  British  liberty.  Sir,  the  time  and  place,  and 
occasion  that  gave  birth  to  the  language  of  my 
amendment,  was  as  holy  as  that  at  Runnymede. 
The  body  of  men  who  put  it  forth,  were  as  much 
devoted  to  human  liberty.  The  publication  of 
these  sentiments  was  the  first  act  in  the  grand 
drama  that  led  to  the  freedom  of  our  country.— 
From  the  sentiments  contained  in  this  "  mere  ab- 
straction," flowed  the  free  institutions  of  this 
land.  Were  the  venerable  men  whose  names  ap  • 
pear  in  this  instrument,  (holding  up  the  Decla- 
ration of  Independence,)  only  publishing  a 
mere  abstraction"  to  the  world  ?  We  pride 
ourselves  upon  the  fact  that  our  country  is 
the  only  asylum  of  oppressed  humanity.  We 
have  thrown  open  our  arms  to  embrace  every 
foreigner  of  Europe.  We  have  spent  four  weeks- 
of  the  time  of  this  Convention  in  striking  out 
the  word  native,  in  order  to  open  the  doors  of 
the  Executive  mansion  to  the  foreign  emigrant. 
Sir,  all  this  is  well.  I  can  go,  and  desire 
to  adopt  the  amendment  of  the  gentleman  from 
Otsego,  "  without  regard  to  color."  I  am 
opposed  to  distinctions  that  rest  upon  no  .better 
foundation.  But  with  all  our  boasted  equality, 
we  deny  to  a  portion  of  our  citizens  any  partici- 
pation in  some  of  our  dearest  political  rights. — 
They  are,  it  is  true,  in  numbers,  a  small  and  fee- 
ble race.  They  are  not  foreigners  who  come  to 
us  asking  a  boon.  They  were  born  and  bred  up- 
on our  soil.  And  here  in  the  house  of  their  birth 
we  dare  to  deny  them  the  sacred  right  of  suffrage 
on  account  of  the  shade  or  color  of  the  skin. — 
Whence,  sir,  do  we  derive  the  power  to  deny  to 
that  oppressed  race  the  enjoyment  of  that  sacred 
right  ?  Have  not  they  just  as  much  right  to  deny 
it  us  ?  It  is  might  and  power  alone  that  gives 
right.  It  is  the  robber's  right.  But  I  confess  I 
was  not  prepared  to  hear  it  declared  in  this  hall, 
that  the  principles  of  the  declaration  of  indepen- 
dence are  mere  abstractions.  If  we  have  indeed 
come  to  this — if  we  have  as  a  people,  adopted 
this  sentiment,  we  have  very  far  departed  from 
the  "  faith  once  delivered  to  the  saints."  We 
have  lost  sight  of  the  principle  of  equal  rights, 
and  our  government  is  indeed  a  despotism. 

The  committee  here  rose  and  reported  pro- 
gress, and  the  Convention  took  a  recess. 

AFTERNOON  SESSION. 

The  amendment  of  Mr.  CHATFIELD,  offered  in 
the  morning,  to  Mr.  CROCKER'S  amendment,  was 
agreed  to.  It  was  to  insert  the  words  "  without 
regard  to  color,"  in  the  place  he  had  designated 


541 


Mr.  CROCKER'S  amendment  as  thus  amended 
was  then  agreed  to. 

Mr.  BURR'S  amendment  was  lost.  (It  was 
published  in  the  morning's  proceedings.) 

Mr.  MANN  then  moved  to  strike  out  thewhol 
section,  as  thus  amended. 

Mr.  BASCOM  said  as  it  had  been  amended  by 
the  gentleman  from  Otsego,  or  on  his  motion,  in 
such  a  capital  manner,  he  hoped  it  would  not  be 
stricken  out. 

It  was  stricken  out — ayes  42,  noes  19. 

The  second  section  was  then  read. 

^  2.  All  political  power  is  inherent  in  the  people. 

Mr.  CROCKER  moved  to  strike  it  out. 

Mr,  RICHMOND  wanted  to  hear  some  good 
reasons  advanced  why  a  section  so  important  in 
principle  as  this  was  and  in  so  few  words,  should 
be  stricken  out.  He  had  often  heard  it  asserted 
in  this  body,  and  elsewhere,  and  on  this  floor,  that 
the  legislature  was  omnipotent  and  not  the  peo- 
ple. He  would  like  to  have  it  settled  where  the 
power  does  actually  rest.  He  believed  it  rested 
in  the  people.  There  had  been  an  opinion  pre 
vailing,  that  the  legislature  had  the  right  to 
take  lands  from  the  citizens,  which  the  State  had 
given  to  the  citizens  with  good  warranty  deeds, 
•  and  give  them  to  whoever  theyj  pleased — yes, 
they  have  given  this  very  doubtful  power  to  take 
lands  to  certain  overgrown  incorporations.  This 
was  all  wrong — decidedly  wrong.  And,  in  these 
matters,  the  appeals  to  higher  courts  had  failed ; 
and  in  some  instances  the  Court  of  Errors  had 
confirmed  this  very  power.  There  was  a  lurking 
fear  amongst  those  who  lived  upon  those  legis- 
lative grants,  that  there  was  not  so  much 
Constitutional  right  in  these  things  after  all  as 
to  sanction  such  proceeding.  He  was  sorry  to 
see  an  attempt  made  here  to  give  more  power  to 
the  Legislature  to  favor  these  chartered  compan- 
ies. And  when  the  question  came  up  properly 
he  would  be  found  recording  his  vote  against  it. 
And  if  it  should  be  submitted  to  the  people  who 
live  along  the  line  of  travel  through  the  centre  of 
this  State,  nine-tenths  of  them  would  be  found 
voting  with  him  (Mr.  R.).  He  felt  it  was  his 
right  and  his  duty  to  stand  up  in  behalf  of  that 
people,  and  against  allowing  these  chartered  com- 
panies to  trample  upon  the  rights  of  the  yeoman- 
ry of  the  land.  They  had  thought  it  necessary  to 
put  in  a  clause  to  carry  on  wiorks  of  internal  im- 
provements, whilst  the  people  cried  out  against 
the  increase  of  these  chartered  rights.  Gentle- 
men have  taken  this  ground.  They  say  that  the 
public  good  requires  it— to  take  land  of  the  citi- 
zens for  railroads.  Why,  they  have  got  all  the 
power  they  need  under  the  present  Constitution. 
What  do  they  want  with  more  ?  He  would  go  as 
far  as  any  man  to  allow  the  State  to  take  private 
property  for  public  purposes,  but  no  farther. — 
Some  gentlemen  here  think  me  tenacious,  be- 
cause I  am  so  strenuous  about  this.  But  go  from 
Albany  to  Buffalo,  &c.  with  me  and  submit  the 
question— go  with  me— and  talk  to  the  people  on 
this  subject.  They  know  they  have  been  cheat- 
ed and  defrauded  in  these  matters,  and  they 
will  stand  it  no  longer.  The  internal  improve- 
ment system  I  glory  in,  and  will  do  all  that 
is  right  to  promote  it.  But  I  will  not  trample 
down  the  yeomanry  into  the  dust.  They  could 


not  come  to  your  capilol  to  complain  ot  their 
wrongs.  Their  opponents  come  here  and  ask  and 
beg  of  the  Legislature  and  get  privileges  granted, 
which  injure  the  yeotnanry.  I  have  a  right  to 
stand  up  here  for  the  rights  of  this  large  class  of 
my  fellow  citizens.  Now  editors  in  their  edito- 
rials, spoke  against  this;  all  your  public  speakers, 
all  your  political  men,  abolitionists,  old  hunkers, 
barnburners,  whigs,  and  all  classes  ot  them— they 
all  declared  they  would  go  against  this  increase 
of  the  powers  of  corporations,  and  the  people 
now  have  fears  that  this  body  will  not  go  quite 
right,  on  this  subject.  If  this  has  been  done  un- 
der your  past  Constitution — what  may  not  be  done 
under  some  words  of  present  articles — in  some  of 
the  reports.  He  was  saying  that  it  the  taking  is 
for  the  public  use,  he  would  go  for  it,  but  not  oth- 
erwise. And  he  was  sorry  to  find  that  there  had 
been  a  clause  put  in  to  this  effect,  to  give  more 
power  to  corporations.  He  would  appoint  two 
disinterested  men,  to  judge  on  and  decide  all  such 
matters  In  99  cages  out  ot  100  the  couits  have 
declared  wrongfully  in  these  suits;  and  they  have 
taken  the  land  from  the  farmers  to  give  to  these 
overgrown  monopolies,  to  the  destruction  of  some 
farms;  and  in  their  own  way,  just  balanced  the 
account.  He  (Mr.  R.)  had  seen  robbery  enough 
of  this  kind,  and  he  wanted  to  see  no  more  of  it. 

Mr.  LOOMIS  said  that  he  fully  agreed  with 
Mr.  RICHMOND,  and  he  would  go  with  him  shoul- 
der to  shoulder,  to  defend  private  rights  against 
the  encroachments  of  chartered  monopolies,  and 
he  hoped  Mr  RICHMOND  would  go  with  him  in 
another  proposition,  it  was  this  :  However  true 
that  gentleman's  views  may  be,  it  may  not  be  best 
to  incorporate  all  that  is  true  in  the  Constitution. 
I  move  to  insert  so  as  to  read  thus  "  all  power  is 
not  inherent  in  the  legislature." 

Mr.  STRONG— Mr.  Chairman— 

Mr.RICHMOND— I  wish  to  move  an  amend- 
ment to  the  amendment. 

Mr.  STRONG.  I  have  the  floor.  The  gentle- 
man from  Genessee  has  a  good  deal  of  trouble 
this  afternoon.  What  he  alluded  to  was  when  a 
member  came  in  and  wished  to  record  his  vote. 

Mr.RICHMOND:  Will  the  gentleman  allow 
me  to  explain. 

Mr.  STRONG  :— No,  sir,  the  gentleman  wishes 
to  get  up  again  to  explain  and  make  another 
speech.  Now  if  if  we  retain  this  seel  ion,  we 
will  never  have  another  railroad  ;  he  ought  to  be 
excused,  because  the  Tonawanda  railroad  runs 
through  his  wood-land,  he  thinks  if  he  can  retain 
his  section,  that  he  can  stop  the  railroad,  and  the 
ocomotive,  when  they  get  to  his  land. 

Mr.  SWACKHAMER  was  proceeding  to  ex- 
plain, as  a  member  of  the  committee  that  report- 
ed the  section. 

Mr.  WORDEN  rose  to  a  question  of  order;  you 
cannot  oiler  an  amendment  that  is  inconsistent 
with  the  original  section.  He  hoped  they  would 
Ret  to  work  like  men  of  sense,  and  he  hoped  the 
ridiculous  amendment  about  all  power  not  being 
'nherent  in  the  Legislature,  would  be  withdrawn  ; 
-vho  ever  heard  of  such  a  preposterous  thing. — 
He  begged  Mr.  LOOMIS  to  withdraw  it. 

Mr.  LOOMIS  did  withdraw  it. 

iVJr.  HUNT  said,  if  it  was  designed  to  insert  in 
he  Constitution  a  collection  of  political  axioms, 
le  would  propose  the  following: — 


542 


"The  rights  of  men  are  the  gifts  of  God,  and  are  sacredt 
The  first  duty  of  government  i<,  to  protect  them;  the  se 
cond.  10  let  them  alone."  [Laughter.] 

Mr.  WARD  begged  him  to  withdraw  it. 

Mr.  HUNT  would  do  so  if  it  would  give  rise  to 
debate. 

Mr.  CROOKER :  Anything,  no  matter  where  it 
came  from,  would  be  debated  here. 

Mr.  RICHMOND  :  If  I  am  to  be  charged,  &c. 
then,  when  any  of  these  questions  of  incorpora- 
tions comes  up,  I  have  got  personal  matters  en- 
ough in  my  head  to  throw  back  ;  and  I  will  throw 
them  back  the  :  ext  time  I  am  assailed. 

The  section  was  struck  out. 

Mr.  HARRISON  offered  the  following  amend- 
ment, which  was  negatived : 

§  2.  The  political  power  of  a  state  is  inherent  in  the  peo- 
ple thereof,  and  the  institutions  of  government  are  derived 
from  their  authority  and  must  be  created  for  their  benciit 
and  protection. 

The  third  section  was  read,  as  follows : 
$3    No  member  of 'this  state  shall  be  disfranchised,  or 
deprived  of  any  of  the  rights  or  privileges  secured  to  any 
citizen,  unless  by  the  law  of  the  land. 

Mr.  WORDEN  wished  to  amend  the  last  words 
thus  : — "  Except  by  due  operation  of  law."  He 
referred  to  the  changes  of  the  law,  by  which  a 
party  might  be  unjustly  dealt  with.  He  said  that 
you  cannot  by  an  arbitrary  act  deprive  a  man  of 
his  liberty,  but  a  law  may  be  passed  by  which,  if 
he  violates  it,  he  may  be  deprived  of  his  liberty. 
All  a  man's  rights,  life,  liberty  and  property,  may 
all  be  taken  away  by  reason  of  his  violation  of  the 
laws  of  the  State.  He  wished  this  matter,  there- 
fore, properly  worded. 

Mr.  TALDMADGE  said  he  had  adopted  the 
words  in  accordance  with  the  terms  of  the  Con- 
stitution, that  no  ex  post  facto  law  should  be 
passed.  You  committed  an  act  yesterday  that 
was  innocent ;  to-morrow  the  legislature  may  pass 
a  law  making  that  act  criminal.  That  used  to  be 
the  old  mode  of  legislation.  He  wished  to  pre 
vent  all  that. 

Mr.  WORDEN  read  'the  amendment  as  he 
wished  it  modified : 

^  3.  No  citizen  or  member  of  this  state  shall  be  disfran- 
chised or  deprived  of  any  rights,  privileges  or  franchises 
by  any  thing  contained  in  this  constitution,  no«-  shall  any 
vested  rights  or  remedies  b«  divested,  destroyed,  or  taken 
away  in  any  manner  whatsoever,  except  upon  the  ver> 
diet  of  a  jury,  rendered  according  to  due  course  oflaw  in 
a  civjl  action  or  in  a  public  prosecution  and  in  pursuance 
of  some  general  law  of  the  land  promulgated  prior  to  the 
act  or  matter  alleged  as  the  case  of  such  action  or  prose 
cution. 

Mr.  WORDEN  explained  the  effect  and  inten! 
of  the  amendment,  to  be  to  prohibit  the  passage 
of  laws  acting  retrospectively  upon  remedies  as 
well  as  right,  and  to  effect  also  the  object  which 
the  gentleman  from  Genesee  was  aiming  a'. 

Mr.  NICHOLAS  preferred  the  original  languag 
of  the  section  as  reported,  to  either  of  the  amend 
menls,  as  being   more  simple  and  comprehensive 
except  that  the  amendment    provided  against  the 
passage  of  any  ex  post  facto  laws. 

Mr.  O'CONOR  said  the  Constitution  of  the  U 
S.  provided  that  no  ex-post  facto  law  should  b 
passed  by  any  State. 

Mr.  LOOM  IS  asked  the  mover  of  this  proposi 
lion  if  an  office  was  a  franchise  ? 

Mr.  WORDEN  replied  in  the  negative. 

Mr.  LOOM  IS  :     Blackstone  thinks  it  is. 

Mr.  WORDEN  :    It  may  contain  a  franchise 


Mr.  LOO  MIS  continued:  ^  corporation  might 
e  regarded  as  a  member  of  the  State.  If  you 
fould  not  disfranchise,  you  could  not  perhaps 
Jin  a  person  out  of  office,  until  his  term  expired} 
or  allow  the  law  in  relation  to  existing  corpora- 
ions.  He  thought  it  expedient  to  adopt  this  pro- 
osiiion — certainly  not  without  due  consideration. 

Mr.  WORDEN  would  prefer  to  have  it  lay  over 
or  a  day. 

Mr.  CHATFIELD  said  this  principle  was  not 
pplicable  to  a  government  like  this,  and  he  wa» 
ot  disposed  to  re- affirm  inx>ur  constitution  a  prin- 
iple  wrested  from  a  despotic  monarch  in  the 
magna  charta,  for  the  protection  of  the  barons  and 
lobility  of  that  day.  To  assert  that  a  citizen 
ould  under  our  government  be  deprived  his  pro- 
perty, liberty,  &c.,  without  due  process  of  law, 
vas  to  assert  a  monstrosity.  He  had  no  sort  of 
bjection  to  the  section  as  it  originally  stood, — he 
nought  it  could  do  neither  harm  or  good.  Ha 
ooked  upon  the  amendment  ot  Mr  WORDEN  as 
:unningly  drawn  and  tending  lo  perpetuate  corpo- 
ations,  &c  under  the  guise  of  vested  rights.  He 
ould  never  consent  to  the  adoption  of  such  a 

principle.     There  was  one  kind  of  vested  rights 

which    he  would  sustain ;  another  that  he   never 

would.     Mr.  C.  alluded  not  only  to  corporations, 

ut  to  certain  estates  which  he  thought  as  much 

t   war  with  the  spirit  of  our  institutions    as  the 

government  against  which  our  fathers  rebelled. 

Mr.  BASCOM  agreed  with  the  gentleman  from 
Otsego,  as  lo  the  specious  character  of  the  propo- 
ition  ef  Mr.  WORDEN,  although  he  did  not  as  to 
he  original  section.  It  was  under  that  section, 
he  apprehended,  that  the  Legislature  had  the  pow- 
er to  deprive  an  individual  of  his  right  of  suffrage 
and  of  being  a  witness,  in  cases  of  crime.  When 
n  order,  he  should  offer  the  following  amendment, 
which  he  believed  would  be  cairying  out  the  in- 
ention  of  the  committee.  To  strike  out  from  the 
word  "  unless,''  and  insert  after  it,  "  upon  convic- 
lion  of  an  offence  against  the  law  of  the  lurid." 

Mr.  HARRIS  should  have  no  objection  to  leave 
the  article  as  reported  by  the  committee,  because 
ts  meaning  was  well  understood,  and  no  mis- 
chievous results  had  arisen  from  it.  He  concur- 
red with  the  remarks  of  the  genileman  from  Otse- 
go, as  to  the  character  of  the  provision  of  Mr.  W. 
— and  he  protested  against  the  insertion  of  any 
such  one  in  the  Constitution,  Tnlk  about  "vest- 
ed remedy" — where  will  the  gentleman  find  any 
such  language  in  any  Constitution  any  where  ? — 
Mr.  H.  apprehended  that  it  would  lead  to  very 
grievous  results  through  the  construction  that 
might  be  given  to  it. 

Mr.  K1RKLAND  concurred  in  the  views  of 
the  gentleman  from  Albany,  in  his  understand- 
ing of  this  amendment.  He  believed  it  would 
assert  the  reverse  of  what  the  gentleman  intend, 
ed.  If  the  language  carried  out  the  sentiment  his 
friend  from  Ontario  proposed,  he  should  like  to 
vote  for  it. 

Mr.  WORDEN  would  like  to  ask  his  friends 
from  Olsego  and  Albany  whether  they  proposed 
to  take  away  any  vested  right  or  franchise  now 
enjoyed  by  corporations? 

Mr.  HARRIS  would  answer  the  gentleman  on 
the  report  of  committee  No.  18. 

Mr.  WORDEN  denied  it  to  be  the  power  of  the 
Legislature  or  of  the  Convention  to  take  away  any 


543 


of  these  rights.  A  great  deal  of  sensitiveness  had 
been  manifested  recently  as  to  the  taking  of  pri- 
vate property  by  corporations.  This  thing  hap- 
pened every  day,  and  without  it  our  government 
could  not  go  on.  In  the  case  of  a  man's  dying  and 
leaving  an  estate  in  dower,  or  to  be  partitioned, 


necessary  that  the  legislature  should  retain  some 
control  over  personal  rights  to  be  exercised  in  the 
cases  of  punishment  of  crime,  &c.  As  the  section 
stood  however,  he  feared  it  might  if  the  legisla- 
ture should  dare  to  do  so,  empower  them  to  de- 


it  is  divided  at  the  instance  of  one  of  the  heirs, 
and  the  rights  of  all  the  others  disturbed.  The 
laws  of  partition,  of  dower,  &c.,  are  nothing  more 
than  laws  which  divest  one  man  of  his  property, 
and  vest  it  in  another,  contrary  to  .the  will  per- 
haps of  all  who  are  thus  divested.  Vested  rights 
are  such  as  are  secured  to  individuals,  and  which 
cannot  be  taken  away  without  just  and  full  com- 
pensation in  courts  of  law.  That  is  what  he  de- 
signed to  do — to  secure  vested  rights  and  reme- 
dies against  the  action  of  the  Legislature  in  any 
particular.  It  has  been  solemnly  argued  and  in- 
sisted upon  that  the  Bankrupt  law  of  the  Federal 
Government,  violated  those  rights.  He  desired 
to  see  this  State  Constitution  guarded  against  any 
sucli  thing.  He  would  object  to  the  taking  away 
of  vested  rights  and  remedies  in  courts  of  law, 
and  this  is  what  he  designed  to  guard  against  and 
nothing  more.  He  had  no  such  objects  as  the 
gentleman  from  Otsego  supposed.  He  would  go 
as  far  as  any  gentleman  to  prevent  that  accumula- 
tion of  property  which  tended  to  create  almost 
the  relation  of  lord  and  serf.  He  was  ready  to  go 
to  the  very  verge  of  the  Constitution  to  prevent 
that.  And  he  desired  also,  that  these  vested  re- 
medies should  be  placed  on  the  same  footing  with 
vested  rights,  and  not  interfered  with  without  ad- 
equate compensation. 

Mr.  CAMPBELL  preferred  that  we  should  not 
insert  any  new  section  in  our  bill  of  rights.  He 
thought  the  object  of  the  gentleman  from  Ontario 
would  meet  with  little  favor  here.  The  gentle- 
man states  that  he  desires  to  prevent  any  inter- 
ference with  the  remedy.  In  the  case  of  a  judg- 
ment, there  fare,  he  would  take  away  from  the  le- 
gislature the  right  to  pass  a  law  preventing  im- 
prisonment on  the  execution  of  that  judgment. — 
Mr.  C.  thought  it  was  best  to  have  the  inheren 
rights  of  the  people  as  they  are. 

Mr.  CHATFIELD,  in  reply  to  Mr.  WORDEN 
denied  that  he  had  any  idea  of  interfering  with 
vested  rights.  He  would  as  soon  think  of  lock 
ing  up  that  celebrated  temple  in  the  great  deser 
of  Sahara,  to  keep  out  thieves,  as  to  do  it.  Ther 
was  also  no  power  in  the  State  to  do  it.  H 
might  be  mista'ken  in  the  amendment,  but  h 
thought  that  it  was  liable  to  the  construction  o 
perpetuating  certain  things  he  had  before  allude( 
to.  There  was  a  great  question  as  to  what  con 
stituted  vested  rights.  The  courts  had  decide 
many  things  to  be  vested  rights  which  he  (Mr.  C. 
could  never  acknowledge  as  such.  This  doctrin 
had  been  held  as  to  grants  of  franchise  to  corpo 
rations,  &c.  As  to  vested  remedies,  it  would  b 
to  make  vested  remedies  of  all  that  are  now  pro 
vided  for  in  our  laws,  if  we  adopted  this  propos 
tion.  It  would  be  to  make  our  laws  perpetua 
and  unchangeable,  and  would  preclude  any  at 
vance  that  might  be  demanded  by  the  progress 
civilization  and  humanity. 

Mr.  BASCOM  considered  the  amendment  on 
of  some  importance.     He  apprehended  the   ob 
ject  was  to  secure  personal  rights  and   privileg 
and  not  corporate  rights  and  property.    It  wa. 


prive  persons  of  the  right  of  giving  evidence  on 


count  of  their  religious  belief.  The  amend- 
ent  he  proposed,  was  to  confine  the  exercise  of 
is  power  by  the  legislature  to  cases  of  crime. 

The  amendment  was  rejected. 

Mr.  WORDEN  said  if  the  committee  would 
ot  consent  to  let  this  matter  lie  over,  until  to- 
orrow,  he  would  withdraw  his  amendment,  to 
fer  when  he  might  deem  proper. 

Mr.  TALLMADGE  then  renewed  his  amend  • 
ent. 

Mr.  PERKINS  was  a  little  uncertain  as  to  the 
anguage  of  this  section.  It  spoke  of  the  inter - 
entionofa  jury.  There  was  a  proceeding  in 
lis  State  by  which  the  Court  of  Chancery  had 
urisdiction  without  requiring  a  jury.  Perhaps 

would  be  well  to  provide  for  this,  but  this  was 
ot  the  place  to  do  it. 

Mr.  HARRIS  was  a  good  deal  of  a  reformer — 
ut  in  regard  to  this  matter  he  must  say,  that  he 
fas  an  ultra  conservative.  He  would  not  alter 
lis  provision  in  the  constitution,  which  was  now 
o  well  understood,  and  from  which  no  evil  had 
esulted. 

Mr.  O'CONOR  objected  to  any  change  in  the 
ection.  As  it  Hood,  it  was  with  a  slight  altera- 
ion  the  language  of  Magna  Charta.  Its  con- 
truction  had  been  long  and  well  established  by 
udicial  decisions.  It  was  a  most  excellent  sec- 
ion,  an  ancient  section,  and  he  desired  to  see  no 
inkering  with  it. 

Mr    TALLMADGE'S  amendment  was   then 

oteddown. 

Mr.   BRUCE   moved  to  strike  out  the  word 
1  member"  and  to  insert  "  citizen,"  so  as  to  read 
1  no  citizen  of  the  State,  &c.     This  was  rejected. 
The  third  section  was  then  agreed  to. 
The  fourth  section  was  then  read  as  follows : 

$4.  The  right  of  trial  by  jury  in  all  cases  in  which  it 
las  been  heretofore  used,  shall  remain  inviolate. 

Mr.  JORDAN  moved  the  following  amendment : 
Add  10  the  section — 

"  The  judge  may  repeat  to  the  jury,  and  call  their  attenj 
ion  to  all  the  te-timony,  but  na  judge  shall  argue,  advise, 
nsuuct,  or  express  an  opin;ou  upon  any  matter  oi  lact,  on 
the  trial  of  any  issue  in  any  civil  cause." 

Mr.  J.'s  object  was  to  preserve  the  legitimate 
objects  of  a  Uial  by  jury,  and  to  prevent  judges 
Iroin  interfering  where  they  had  no  right  ic.  It 
hud  been  the  practice  of  some  judges  not  only  to 
repeat  the  evidence  and  to  call  the  attention  of  the 
jury  to  it,  but  to  argue  a  matter  of  fact  and  to  ex- 
press a  decided  opinion  thereon,  arid  to  advise 
them  as  to  a  matter  of  fact;  and  often,  unless  the 
jury  happened  to  be  a  very  independent  and  think- 
ing one,  almost  instruct  them  as  to  how  the  facts  are 
to  be  settled  accordingto  ihe  judge's  notion  o!  them. 
And  at  the  same  time  he  would  tell  the  jury  that 
they,  after  all,  were  to  be  ihe  judges  ot  the  law 
and  of  the  facts-  He  admitted  that  nine-tenths 
of  the  judges  were  free  from  this  charge  ;  but  he 
was  aware  of  ir.stanct-s  where  both  himself  and 
his  client  had  suffered  from  such  conduct  on  the 
part  of  a  judge. 

The  amendment  was  rejected. 


544 


Mr.  CONELY  moved  to  amend  the  section  s< 
that  it  should  read,  "the  right  of  trial  by  jury,  in 
all  cases,  shall  be  inviolate." 

Mr.  TALLMADGE  explained  that  the  commit 
tee  bad  adopted  the  language  of  the  former  Con 
stitution,  the  construction  of  which  was  well  es 
tablished  and  well  understood. 

Mr  SWACKHAMER  briefly  advocated  thi 
amendment,  and  Mr.  TILDEN  opposed  it. 

It  was  rejected. 

Mr.  O'CONOR  proposed  the  following  substi 
t  ute  for  the  section. 

^  4.  The  trial  by  jury  in  all  cases  in  which  it  has  been 
heretofore  used,  shall  remain  inviolate  forever,  and  shal 
be  allowed  in  like  cases  arising  in  any  new  court  or  pro 
ceeding  hereafter  instituted  or  authoiiaed. 

Mr.  O'C.  explained  and  advocated  his  amend- 
ment. It  only  reasserted  in  spirit,  though  not  in 
precise  words,  the  provision  in  the  Constitution 
of  1821. 

Mr.  STOW  advocated  the  amendment. 

The  committee  then  rose  and  reported  and  the 
Convention  adjourned. 

SATURDAY,  (51th  day,)  August  8. 

Prayer  by  Rev.  Mr.  MILES. 

Mr.  ARCHER  offered  a  resolution  that  the  re 
port  of  committee  No.  11  be  taken  out  of  com 
miliee  of  the  whole  at  halt'  past  10  to-day. 

The  roll  was  called— 72  members  present. 

The  motion  was  lost. 

The  Report  of  committee  No.  11  was  then  up 
in  committee  of  the  whole.  Mr.  MARVIN  in 
the  chair. 

The  question  was  on  section  4. 

The  substitute  of  tne  gentleman  from  N.  Y. 
(Mr.  O'CONOR)  was  carried. — As  follows: 

(5  4.  The  trial  by  jury  in  all  cases  in  which  it  has  been 
heretofore  used,  shall  remain  inviolate  lorever,  and  shall 
be  allowed  in  like  cases  arising  in  any  new  court  or  pro- 
ceeding hereafter  instituted  or  authorized. 

Mr.  liA.SCOM  wished  the  Legislature  to  pre. 
scribe  the  number  ofjuroisj  and  he  would  amend 
this  section  by  adding  at  the  close  of  it,  "but  the 
number  ot  Jurors  to  form  a  jury  may  be  prescribed 
to  l.,w." 

Mr.  BROWN  opposed  the  amendment.  He 
would  not  leave  it  in  the  power  of  a  jury  to  say 
that  there  shall  be  but  three  or  four  persons  to 
try  a  case.  This  would  give  the  Legislature  ab- 
solute and  uncontrolled  power  over  trial  by  jury. 
He  was  not  disposed  to  experiment  on  that  right. 
We  know  what  the  trial  by  jury  is.  It  has  come 
down  consecrated  by  a  long  course  ot  usage,  and 
we  ought  not  to  make  any  innovations,  unless  it 
were  such  as  there  were  no  doubts  about — such 
as  were  cleat ly  pointed  out  by  wisdom  and  expe- 
rience. To  allow  the  legislature  to  prescribe  the 
number  would  be  to  say  that  the  legislature 
should  be  entitled  to  say  that  a  jury  should  con- 
sist ot  one,  two,  or  three,  or  any  other  number. — 
Now  in  all  his  experience  at  the  bar  for  twenty- 
five  years,  he  had  tound  that  the  present  number 
of  jurors  was  the  best  in  all  trials.  In  England, 
experience  had  taught  the  same  tact;  and  unless 
some  better  reason  was  given,  than  any  he  had  yet 
heard,  he  should  preler  to  adhere  to  the  old  rule, 
than  to  try  innovations  which  would  put  such 
power  into  the  hands  of  a  small  number  ot  the 
legislature. 


Mr.  LOOMIS  said  the  rigJit  of  trial  by  jury  was 
a  grant  from  the  sovereign  power  to  the  people, 
to  protect  their  personal  rights  from  the  tyranny 
of  the  king ;  we  have  no  necessity  for  this  grant 
to  the  people  of  our  country;  the  legislature  was 
our  sovereign  and  he  had  no  fear  that  the  legisla- 
ture would  ever  abolish  this  trial  by  jury ;  the  ju- 
diciary committee  propose  to  grant  trial  by  jury 
to  issues  of  fact  between  parties  in  chancery  suits ; 
we  have  seen  recently  great  abuses  of  this  jury 
system ;  haye  seen  large  sums  of  money  and  a 
month  of  time  consumed  in  getting  a  jury  ;  the 
more  atrocious  the  crime — the  better  known  the 
facts — the  more  difficult  it  is  to  get  a  jury.  And 
if  by  this  provision  in  the  Constitution  the  legis- 
lature hereafter  would,  be  prevented  from  reme- 
dying these  abuses  then  he  wished  to  have  it 
stricken  out.  He  was  willing  to  trust  the  legis- 
lature with  full  power  in  this  subject.  He  went 
further  than  Mr.  BASCOM.  He  wished  a  section 
to  be  put  into  the  Constitution  better  adapted  to 
the  present  state  of  things,  if  we  were  to  have 
anything  said  about  the  matter  in  the  Constitution 
at  all.  He  had  a  substitute  which  he  would  offer  at 
the  proper  time,  having  reference  to  our  courts 
as  they  now  exist.  He  read  it. 

Mr.  STETSON  said  it  gentlemen  supposed  this 
section  meant  that  the  legislature  could  not  reduce 
the  number  of  jurors,  he  would  ask,  how  it  is  that 
a  large  class  ot  cases  are  now  tried  by  less  than  12  j 
by  6;  and  the  amount  of  property  disposed  ot  in 
these  courts,  is  perhaps  larger  than  that  disposed 
of  in  the  other  courts;  and  actions  of  seduction 
and  crim  con,  come  under  their  cognizance,  and 
are  disposed  of  by  them.  He  proposed  no  action, 
but  wished  to  call  attention  to  this  point. 

Mr.  WORDAN  said  that  12  men  were  as  few 
as  the  rights  of  citizens  ought  to  be  entrusted  to. 
Jurors  were  liable  to  prejudice ;  but  one  man  could 
always  be  tound  in  every  twelve,  that  would  not 
De  swayed  by  improper  feelings.  He  meant  not 
o  asperse  the  action  of  jurors,  because  generally 
their  conduct  was  entitled  to  all  praise. 

Mr.  STETSON  asked  if  the  section  required 
that  twelve  should  always  be  present  ? 

Mr.  WORDEN  said  that  jurors  were  often  com- 
pelled to  try  causes  which  their  own  good  sense 
:old  them  never  ought  to  be  brought  into  a  court 
of  justice.  But  still  there  must  be  evils  growing 
out  of  all  these  things.  He  would  not  now  say 
that  the  Legislature  could  not  reduce  the  number 
of  jurors  from  12  ;  but  the  justice's  court  rested 
on  their  own  peculiar  organization,  and  ought 
not  to  be  cited  here.  The  present  system  of  12 
lad  been  well  tried,  and  worked  well;  and  it 
ought  to  be  left  as  we  found  it.  Cases  of  accounts 
are  frequently  tried  by  referees ;  and  a  law  is  on 
,he  books  now  where  a  judge  can  try  a  cause 
without  a  jury  if  the  parties  agree.  Judicious 
counsel  always  advise  this  course;  and  he  wish- 
ed all  to  leave  this  precisely  as  it  now  stands. — 
le  agreed  with  the  gentleman  from  Orange  (Mr. 
BROWN)  that  this  right  of  trial  by  jury  was  of  too 
great  importance  to  be  assailed  in  any  way  with- 
>ut  great  consideration.  It  had  been  said  to  be 
he  palladium  of  individual  rights,  and  doubtless 
t  was  so.  The  trial  of  questions  of  fact  by  twelve 
men,  and  requiring  them  to  concur  in  the  facts 
which  are  to  deprive  a  man  of  his  liberty  and  pro- 
perty, is  the  great  safeguard  of  individual  rights ; 


545 


and  he  agreed  with  the  gentleman  from  Orange 
that  twelve  men  were  as  few  as   the   rights   and 

eroperty  of  citizens  ought  to  be  entrusted  with, 
is  experience  had  shown  him  that  there  are 
times  when  even  jurors  are  influenced  hy  consi- 
derations that  swerve  them  for  the  time  from  a 
right  determination.  In  such  cases,  when  they 
had  the  number  of  twelve,  they  were  very  sure  to 
find  one  of  that  number  who  would  take  a  right 
and  proper  view  of  the  subject.  He  did  not  in- 
tend to  impeach  the  integrity  of  the  jurors — far 
from  it.  His  experience  had  shown  him  that  the 
actions  of  jurors  entitled  them  to  commendation, 
and  he  only  wished  now  to  say  that  he  desired 
that  the  system  should  be  left>,as  it  now  is.  He 
knew  it  was  an  onerous  duty  ror  jurors.  He  re- 
capitulated the  cases  in  which  jurors  were  called 
upon  to  try,  and  showed  that  they  were  often  call- 
ed from  their  homes  to  attend  the  trial  of  causes 
which  their  own  good  sense  told  them  should  ne- 
ver be  brought  into  court.  But  it  should  be  re- 
membered that  imperfections  are  attendant  upon 
the  administrations  of  all  human  institutions. — 
When  great  rights  and  personal  privileges  were 
at  stake,  then  It  was  that  they  were  protected  by 
jury  trials.  He  would  not  say  but  what  the  le- 
gislature had  the  power  to  decrease  the  number 
of  jurors.  He  did  not  think  such  a  decrease 
would  be  advisable.  But  he  would  leave  this 
whole  question  to  the  sound  discretion  of  the  le- 
gislature. He  would  not  put  this  clause  in  the 
constitution,  for  it  would  invite  such  changes. — 
Parties,  in  certain  cases,  could  now  dispense  with 
jury  trials,  and  submit  their  causes  to  the  deci- 
sions of  the  court.  Why  not  leave  this  in  the 
constitution  as  it  had  stood  all  along :  It  had 
worked  generally  well,  and  with  as  few  evils  as 
cduld  be  anticipated  from  any  mere  human  sys- 
tem. 

Mr.  O'CONOR  said  the  whole  subject  was  free 
from  d:ilicu^.Ly,  and  they  could  agree  here  to  pre- 
serve the  right  of  trial  by  jury  substantially  the 
same  as  it  was  written  in  the  Constitution  of  1777 
and  of  1821.  There  are  many  cases  in  which 
trial  by  jury  cannot  be  introduced;  and  we  can 
only  provide  that  the  right  as  heretofore  main- 
tained and  practiced  shall  remain  inviolate.  The 
right  of  trial  by  jury  means  really  and  practical- 
ly the  right  of  trial  by  twelve ;  that  is  the  old 
Saxon  institution.  We  only  know  things  by  the 
names  given  to  them.  This  is  the  ancient  and 
sacred  number,  and  that  it  is  which  we  ought  to 
preserve.  We  ought  not  to  put  it  in  the  power 
of  the  legislature  to  change  this ;  nor  ought  we  to 
change  it  ourselves.  If  trial  by  jury  was  not  trial 
by  twelve  men,  then  we  may  call  these  references 
of  one  to  three  men  a  trial  by  jury.  From  the 
earliest  history  there  were  petty  courts  for  the 
trial  of  small  causes ;  and  this  system  was  intro- 
duced here.  An  act  was  passed  in  this  colony  in 
1704,  where  justices  of  the  peace  could  try  small 
causes  under  40  shillings  without  a  jury  ;  and  we 
perhaps  had  extended  up  to  £5,  up  to  the  adop- 
tion of  the  Constitution ;  and  when  in  that  instru- 
ment we  retained  the  right  of  trial  by  jury,  as 
heretofore  practiced,  this  class  of  causes  in  the 
Justices'  Courts  remained  there  as  the  exception ; 
and  the  introduction  of  six  men  amounted  to  no- 
thing, as  there  was  no  necessity  for  them,  ac- 
cording to  the  statute,  and  they  formed  no  part  of 


the  old  institution  of  trial  by  jury.  They  were 
an  illegitimate  jury.  And  he  hoped  that  the  old 
safeguards  of  trial  by  jury  would  forever  be  re- 
tained inviolate. 

Mr.  BASCOM  was  pleased  to  hear  gentlemen 
advocate  the  extension  ot  this  right  of  trial  by 
jury  ;  but  was  astonished  that  they  had  so  strong-- 
ly  supported  that  Court  which  scouted  the  idea  of 
trial  by  jury.  He  was  glad  to  see  the  anxiety  ma- 
nifested to  retain  the  light  of  trial  by  jury,  and  if 
gentlemen  desired  to  extend  that  right,  they  would 
find  him  going  with  them.  It  was  a  sacred  right, 
and  it  was  rather  unfortunate  that  the  people  had 
not  been  more  watchful  of  interference  with  this 
right.  He  would  call  attention  to  the  fact  that 
a  vast  amount  of  property  was  disposed  of,  with- 
out the  intervention  of  a  jury.  Look  over  the 
overshadowing  influence  of  that  court  which  re- 
pudiates  jury  trials.  He  regretted  that  the  amend- 
ments offered  yesterday  by  Messrs.  CONELY  and 
JORDAN  had  not  been  adopted.  He  believed  the 
legislature  had  exercised  this  right  of  reducing 
the  number  of  jurors.  He  would  not  say  but 
what  that  was  an  infraction  of  the  constitution. 
But  after  the  vote  of  yesterday,  placing  all  our 
rights  within  the  control  of  the  legislature,  and 
allowing  them  to  say  that  we  shall  not  in  certain 
cases  bo  witnesses,  it  was  too  late  to  talk  about 
the  legislature  restricting  the  rights  of  citizens  by 
abridging  the  number  of  jurors.  He  was  not  cer- 
tain that  his  own  amendment  was  perfect.  It 
might  be  well  to  confine  its  operation  to  trials  in 
civil  cases.  In  criminal  cases  it  might  be  neces- 
sary to  retain  the  number  of  twelve.  But  in 
such  cases  of  mere  inquest  and  such  like  matters 
of  form,  he  thought  it  could  be  done  as  well  with 
a  less  number.  There  was  a  great  expense  in- 
volved in  these  trials  by  jury.  In  the  county  of 
Ontario  during  the  past  year,  the  amount  paid  out 
of  the  treasury  for  jury  fees  was  greater  than  the 
entire  amount  of  verdicts  rendered  by  them  in  ci. 
vil  cases.  Mr.  B.  trusted  this  important  subject 
would  be  fully  considered,  and  that  the  correct 
result  might  be  reached. 

Mr.  WORDEN  thought  that  gentlemen  were 
mistaken  about  the  expenses  of  jury  trials  ;  the 
greatest  expense  was  that  connected  with  crimi- 
nal trials,  the  enquiries  returned  being  calculated 
to  mislead  in  this  matter.  The  enquiries  had 
been  to  find  out  those  expenses  compared  with 
the  amount  of  judgments  rendered,  which  had 
shown  a  great  disparity.  But  it  was  overlooked 
that  a  great  share  of  them  was  for  trials  of  crimiS 
nals. 

Mr.  PORTER:  The  gentleman  from  Herkimer 
(Mr.  LOOMIS)  misunderstood  the  subject,  in 
saying  that  the  only  object  of  jury  trial  in  this 
country  was  to  protect  the  individual  against  the 
legislature.  The  institution  here  is  intended  to 
protect  the  people  from  the  encroachments  of  the 
judiciary  ;  and  he  also  understood  it  had  always 
been  so  in  England  ;  it  was  to  protect  the  people 
from  the  encroachments  of  the  judiciary.  For  in 
England  it  is  equal  to  the  monarchical  power,  and 
it  has  no  check  placed  on  its  action  whatever;  and 
it  is  very  much  the  case  also  in  this  country.  Now 
he  should  strengthen  rather  than  relax  every  ef- 
fort to  protect  the  rights  of  the  people  from  the 
overshadowing  encroachments  and  the  tremen- 
dous power  of  the  judiciarv.  This  is  done  by  in- 

43 


546 


terposing  the  jury  trial  system.  It  is  too  sacred 
aright  to  be  interfered  with;  and  he  entirely 
concurred  in  the  views  taken  by  Messrs.  JORDAN 
and  O'CONOR  on  this  very  important  subject. 

Mr.  STETSON  would  only  ask  the  gentleman 
,  from  New-York  (Mr.  O'CoisroR,)  if  a  case  was 
withdrawn  from  a  court  where  12  jurors  sat,  and 
was  given  to  a  court  where  only  six  jurors  sat,  or 
were  required,  would  that  be  a  violation  of  this 
section  ? 

Mr.  O'CONOR :  It  would  if  they  have  ever  done 
so.  But  they  have  not,  as  he  believed. 

Mr.  STETSON  replied  he  thought  they  had 
done  so  ;  for  if  you  bring  your  action  in  a  court 
below  for  $50  or  more  and  less  than  $100,  say  for 
a  horse  you  only  get  a  jury  of  six— if  you  sue  for 
the  same  cause  in  a  court  of  record,  you  have  a 
jury  of  twelve.  Now^this  change  had  occurred 
since  the  adoption  of  the  present  Constitution. — 
The  Legislature  have  kept  varying  the  jurisdic- 
tion from  $10  to  $100  They  may  still  goto 
$500,  $5000  or  any  higher  sum,  thus  transferring 
causes  of"  action  before  tried  by  twelve  to  juries  of 
six  only.  He  did  not  complain  of  this,  he  only 
stated  "it  to  show  that  possibly  legislative  bodies 
had  taken  a  distinction  between  trial  by  jury, 
and  the  number  that  should  compose  the  jury. — 
He  would  say  too,  that  if  these  six  men  juries  in 
justices  courts  were  not  to  be  called  juries  in  a 
constitutional  sense,  then  all  trials  in  the  enlarg- 
ed jurisdiction  of  those  courts  had  been  without 
any  legal  jury  at  all.  It  was  worth  notice  also 
that  the  words  "  heretofore  used"  at  this  date 
would  mean  something  else  and  more  than  they 
did  in  1821. 

Mr.  O'CONOR  :  Formerly  the  cause  was  tried 
by  a  justice  only  ;  now  six  men  are  added — and 
nothing  taken  away,  but  something  is  given. 
Formerly  the  trial  was  before  a  justice  alone. 

Mr.  STETSON :  If  the  whole  jurisdiction 
from  above  be  brought  down  to  the  justice's  courts 
then  the  trials  have  been  without  a  jury. 

Mr.  O'CONOR  said  he  had  not  recently  exa- 
mined the  law  applying  to  county  courts.  He 
thought  the  old  act  provided  that  wherever  this 
class  of  jury  cases  was  brought  down  to  the  jus- 
tice's courts  that  a  common  law  jury  of  twelve 
men  shall  be  brought  down  with  them.  And  if 
by  this  recent  county  act  the  same  rights  are  not 
secured,then  the  Constitution.has  been  most  gross- 
ly violated.  The  only  practical  question  before 
them  was  the  amendment  of  Mr.  BASCOAI  which 
he  hoped  would  be  voted  down. 

Mr*  LOOMIS  was  opposed  to  the  amendment. 
He  admitted  that  it  was  doubtful,  perhaps,  whe- 
ther the  legislature  might  not  alter  the  number 
unless  this  section  was  retained.  The  adoption 
of  additional  words  were  sometimes  of  doubtful 
intent.  He  wished  that  point  decided.  He  wish- 
ed the  section  improved  ;  the  original  proposition 
was  better  than  the  amendment  of  the  gentleman 
from  New  York ;  we  had  there  the  words  the 
"  ri°-ht"  of  trial  by  jury.  We  did  not  compel  a 
man  to  pay  all  the  expenses  of  a  trial  by  twelve 
men,  wlien  in  point  of  fact,  in  four  cases  out  of 
five  in  the  country  courts  the  jury  have  not  a  word 
to  say  about  the  cause  ;  the  judge  decides  it ;  it  is 
therefore  a  nullity  ;  that  is  the  practice  and  the 
operation  of  the  system  as  it  now  stands.  He 
therefore  preferred  to  leave  it  as  the  committee, 


reported  it ;  which  designs  to  limit  the  number  by     w 
giving  the  legislature  power  over  the  matter. 

Mr.  KHOADES  said  that  this  subject  had  inter- 
ests far  beyond  the  meresuhject  of  expense  <<f  the 
jury  system.  It  was  to  interpose  a  check  be- 
tween the  people  and  the  aibitrary  power  of  the 
Judiciary.  And  the  system  of  trial  by  jury  en- 
ables men  to  study  law  who  otherwise  have  no 
time  to  study  it,  by  being  brought  into  court,  by 
force  of  law  as  jurois.  And  it  is  desirable  that 
all  men  should  know  something  about  our  laws 
generally — about  our  Constitution — for  the  benefit 
of  themselves  and  for  all  their  fellow  citizei  9  — 
The  debate  has  been  thus  far  confined  to  legal 
gentlemen.  The  proposition  ot  the  gentleman 
from  Seneca  (Mr.  BASCOM)  has  been  sustained 
mainly  upon  the  ground  that  the  number  of  ju- 
rors should  be  reduced  tor  the  purpose  of  saving 
expense.  Aside  from  all  consideration  of  the 
question  of  having  the  rights  of  every  individual 
preserved,  by  causing  his  interests  to  be  submit- 
ted to  the  judgment  of  his  peers,  and  of  securing 
the  rights  ot  the  people  at  large  against  the  ten- 
dency to  arbitrary  power  and  the  eriCioachmen's 
of  the  judiciary,  which  far  outweigh  any  argument 
in  favor  of  diminishing  expense— preserves  and 
keeps  up  an  important  union  between  the  people 
and  their  courts  of  justice.  The  jury  are  their 
representatives  in  the  administration  of  their  ju- 
dicial affairs.  It  allays  all  jealousy  and  distrust 
of  judicial  power.  It  brings  a  large  portion  of 
our  fellow  citizens,  the  mechanics  and  tarmeis  of 
the  country,  in  immediate  contact  with  our  courts 
of  justice.  It  enables  them  to  acquire  a  knowl. 
edge  of  the  geneial  principles  ol  law  and  makes 
them  acquainted  with  the  principle  of  all  good 
government  and  the  mariner  in  which  their  own 
laws  should  be  administered.  But  few  have  the 
time  or  ability  to  study  the  laws  ot  their  country. 
— they  have  not  the  books  necessary  ior  such  in- 
formation. But  few  rnen,  except  those  who  be- 
long to  the  legal  profession,  have  the  taste  or  dis- 
position, of  their  own  accord,  to  have  any  lurther 
knowledge  of  law,  than  what  is  necessary  to  ena- 
ble them  to  avoid  its  penalties.  They  will  not 
study  its  principles,  and  yet  a  large  amount  of 
legal  knowledge  was  acquired  from  their  connex- 
ion with  courts  of  justice  in  the  capacity  of  ju- 
rors. The  number  who  are  now  enjoying  these 
advantages  ought  not  to  be  diminished — it  is  of 
great  importance  to  the  preservation  and  security 
of  public  interests,  as  this  form  of  trial  is  now  ad- 
mitted to  be  secured  by  the  old  constitution,  in 
respect  to  its  numbers  as  well  as  its  privileges. — 
He'hoped  it  would  not  be  changed. 

Mr.  HARRISON  proposed  an  amendment. 

The  CHAIR  said  it  was  not  in  order. 

Mr.  HART  proposed  to  add  after  the  word 
"  Judges"  the  words  "  for  the  trial  of  civil 
causes." 

Mr.  BASCOM  adopted  the  amendment. 

Mr.  STOW  regarded  this  a  highly  important 
question — much  more  so  than  most  who  preceded 
:iim.  He  would  sooner  leave  to  the  Legislature 
the  power  to  fix  the  number  of  legislators,  than 
the  number  of  jurors.  The  people  had  better 
surrender  their  legislative  halls,  than  their  repre- 
sentation in  juries.  No  country  can  be  free  where 
;he  people  are  not  represented  in  the  legislature — 
Yhere  no  power  can  pass  away  without  their  con- 


547 


sent;  or  where  they  are  not  represented  in  courts 
of  justice — where  no  punishment  can  be  in- 
inflicted  on  them,  nor  any  properly  taken  away 
from  them  without  their  consent.  He  would 
sooner  let  the  Legislature  change  the  courts  than 
change  the  jury.  And  as  there  was  some  doubts 
about  what  powers  the  Legislature  has  over  this 
matter,  I  would  make  this  question  made  definite 
in  the  Constitution,  and  say  to  the  legislature  you 
shall  have  no  right  to  lessen  the  people  in  their 
representation  in  the  courts  of  justice.  I  would 
not  have  this  sacred — this  most  important  subject 
of  trial  by  jury  interfered  with  by  the  legislature. 
I  would  secure  this  by  Constitutional  enactment 
ami  not  If  t  it  bslet't  to  law.  And  the  Legislature  by 
reducing  in  any  case  to  six,  clearly  violated  the 
Constitution.  The  Legislature  originally  did  not 
pretend  (hey  had  this  power  ;  but  afterwards  it 
was  said  that  as  ihe  Legislature  had  heretofore 
exercised  this  power  in  a  qualified  form,  then 
ii  was  attempted  to  be  insisted,  upon  that  the  Le- 
gislature had  the  po^  er  to  take  away  the  original 
right  of  the  people  to  demand  a  trial  by  jury  — 
that  is,  by  twelve  men.  We  may  leave  the  quali- 
fications of  jurors  to  the  Legislature,  because  ai 
present,  by  recent  decisions,  none  but  knaves  or 
fools  can  sit  as  juries — knaves,  who  deny  they 
have  an  opinion  on  the  case;  or  fools,  so  pro- 
foundly ignorant  they  can  form  no  opinion  about 
a  rase. 

Mr.  RUGGLES  said  that  the  number  of  twelve 
jurors  should  be  retained  in  the  higher  courts;  he 
also  believed  that  the  Legislature  should  have 
«i>me  control  over  this  subject.  If  there  be  any 
doubt,  doubt  the  constitutionality  of  the  Legisla- 
ture directing  trials,  as  at  present,  before  justices 
of  the  peace,  with  only  six  men — that  point  ought 
to  be  settled.  And  he  believed  that  the  Legisla 
ture  should  have  the  power  to  interfere  in  this, 
(if  they  now  have  it  not)  to  protect  the  commu- 
nity, an'i  to  say  that  in  all  these  small  civil  cases 
the  trial  may  be  by  a  le^s  number  than  twelve. — 
He  had  prepared  an  amendment.  TheLegislature 
had  the  power  to  reorganize  and  reconstt^ct  the 
Justices'  Court ;  and  it  was  perfectly  safe  to  leave 
all  the  matters  connected  with  these  cases  to  the 
legislature,  where  the  amount  in  controversy  is 
but  small.  If  the  legislature  should  by  possibili- 
ty fall  into  error  upon  the  subject,  it  could  be 
corrected.  He  was  of  opinion  that  the  principle 
of  that  law  should  be  retained.  Cases  had  .occur- 
red where  twelve  men  had  been  called  from  their 
work  to  sit  upon  a  cause  where  the  amount  in 
controversy  was  not  twelve  pence.  This  was  an 
abuse  which  the  legislature  should  correct. — 
This  was  necessary,  not  so  much  to  protect  the 
parties  as  the  public. 

The  amendment  of  Mr.  B  ASCOM  was  negatived. 

Mr.  RUGGLES  then  sent  up  the  following 
amendment  to  be  added  to  the  section  : 

"  Excepting,  however,  that  in  all  cases  in  which  the 
value  in  controversy  shall  not  exceed  $3—,  the  trial  may 
be  by  a  jury  of  less  than  twelve  in  number,  or  without  a 
jury,  as  may  be  directed  by  law." 

Mr  BROWN  moved  to  strike  out  the  words 
'•  or  without  a  jury,  as  may  be  directed  by  law." 
If  we  change  the  fundamental  law  in  relation  to 
the  trial  by  jury,  it  should  on  the  most  careful  in- 
vestigation. It  was  dangerous  ground.  The 
greatest  principle  may  be  involved  in  a  question 


involving  only  one  shilling  of  damages.  The 
whole  Revolution  in  England  turned  upon  the 
sum  of  20  shillings,  the  ship-money  assessed  on 
John  Hampden.  The  whole  franchise  of  a  Bridge 
company  turned  upon  an  action  to  recover  a  12i 
cents  toll.  It  was  not,  therefore,  the  amount  of 
money  involved  in  the  controversy  that  consti- 
tuted'the  magnitude  of  a  case,  but  the  principle 
involved. 

Mr.  KIRKLAND  explained  that  he  knew  a  case 
where  the  amount  was  only  for  a  small  toll  which 
involved  the  entire  franchise  of  a  penknife  com- 
pany; the  right  for  ever  of  the  company  to  receive 
12£  cents  or  six  cents  toll  for  pleasure  wagons. — 
A  company  whose  charter  would  never  end  but 
with  the  close  of  Government.  The  amount  at 
issue  directly  was  only  12k  cents ;  but  this  was  to 
decide  for  ever  the  right  of  that  company  to  exact 
that  toll.  It  is  impossible  to  define  often  wheth- 
er the  amount  in  issue  is  over  or  under  $20;  and 
important  principles  were  involved  in  it.  This 
is  to  affect  all  the  courts  in  the  state  ;  actions  for 
slander,  &c.,  &c.  The  indefmiteness  and  uncer- 
tainty of  this  amendment  is  another  reason  for 
the  committee  to  reject  this.  There  are  a  great 
many  cases  where  the  amount  in  the  controversy 
is  small,  and  yet  most  important  principles  are 
involved;  and  the  right  of  trial  by  jury  should 
be  preserved  inviolate. 

Mr.  RUGGLES  explained.  His  object  was  to 
protect  the  community  from  being  called  in  cases 
of  unnecessary,  useless  and  vexatious  litigation, 
where  the  matter  at  issue  was  of  no  personal  con- 
cern to  any  but  the  two  litigants  ;  of  no  earthly 
consequence  how  it  terminated,  and  where  the 
issue  did  not  amount  to  121-2  cents.  He  had 
known  instances  where  many  farmers  had  been 
brought  from  their  business  in  the  middle 
of  harvest,  and  kept  all  day  and  all  night,  up- 
on worthless  cases  like  this.  He  did  not  propose 
to  do  away  with  the  right  of  the  trial  by  jury  in 
any  case.  There  was  no  fear  any  such  attempt 
would  ever  be  made  .especially  in  the  State  of  New 
York  where  the  value  of  the  trial  by  jury  is  so 
highly  appreciated;  and  by  none  was  its  impor- 
tance more  deeply  felt  than  by  himself.  He. 
would  secure  the  public  from  being  thus  oppres- 
ed  by  those  who  were  disposed  to  engage  in  vexa- 
tious litigation.  He  had  no  wish  to  abolish  trial 
by  jury  in  every  case,  but  to  submit  it  to  the  leg- 
islature to  say.  if  in  cases  involving  small  amounts 
the  jury  may  not  be  less  than  twelve  or  no  jury  at 
all. 

Mr.  HARRISON  thought  they  were  wandering 
from  the  true  object.  The  section  first  secures 
the  right  of  trial  by  jury.  The  next  object  should 
be  to  secure,  in  all  criminal  cases  the  full  number 
of  twelve.  The  next  question  would  be  to  de- 
termine if  it  was  proper  in  all  other  cases  to  call 
together  the  same  number  of  jurors.  He  thought 
a  few  words  would  determine  all  these  points. 

Mr.  JORDAN  said  that  the  words  "  as  may  be 
directed  by  law,"  must  remain  ;  the  words  "  or 
without  a  jury"  must  be  stricken  out. 

Mr.  BROWN  accepted  this  alteration. 

The  motion  of  Mr.  BROWN  was  then  agreed 
to. 

Mr.  JORDAN  said  that  if  any  other  construc- 
tion be  put  upon  "  trial  by  jury"  than  that  it 
means  twelve  men,  then  any  number  of  men  may 


548 


constitute  a  jury — six  men — three  men — two  men 
— one  man  may  be  a  jury  ;  a  judge  may  be  both 
court  and  jury  in  his  own  person.  He  was  willing 
to  insert  as  a  constitutional  provision  on  this  point, 
that  in  civil  cases  in  justice  courts  where  the 
amount  at  issue  shall  not  exceed  $100  the  cause 
shall  be  tried  before  a  jury  of  six.  But  he  would 
not  go  for  any  alteration  of  the  number  of  jurors 
now  in  courts  of  record ;  when  this  was  done  it 
would  involve  the  improvement  of  the  whole  of  the 
jury  system  and  should  not  be  done  without  great 
deliberation,  when  it  is  proposed  to  make  juries 
consist  of  superior  classes  of  men,  that  is  if  there 
are  any  superior  class  of  men  in  this  democratic 
republican  country.  He  might  be  willing  to  put 
the  number  at  six.  They  ought  to  fill  the 
blank  in  the  amendment  before  they  could  tell 
whether  it  would  be  proper  to  adopt  it  or  not. 
He  would  move  to  fill  it  with  $100.  The  legisla- 
ture had  evidently  infringed  on  the  Constitution  by 
reducing  the  number  of  jurors  from  twelve,  un- 
less they  had  left  the  jurisdiction  of  justices  at 
twenty-five  dollars,  where  it  wasjat  the  adoption 
of  the  Constitution  of  1777..  Because  trial  by  jury 
was  a  definite  thing ;  and  meant  nothing  more  nor 
less  than  twelve  men. 

Mr.  STOW  moved  to  fill  the  blank  with  $50. 
Mr.  WORDEN  said  there  would  be  an  insuper- 
able difficulty  in  this  amendment.  In  giving  ap- 
plication to  this  rule,  a  man  might  be  tried  for 
cutting  down  a  tree  ;  the  tree  would  be  valued  at 
$5.  The  man  might  plead  that  he  cut  it  on  his 
own  land.  This  would  involve  the  question  of 
title.  And  he  knew  a  case  where  a  large  estate 
was  at  issue  in  this  very  manner,  and  endless  and 
important  controversies  have  similarly  arisen. — 
You  must  limit  this  to  justices'  courts,  or  to  a  per- 
sonal cause.  Did  the  gentleman  who  made  the 
proposition  mean  to  apply  it  to  all  the  courts  in 
the  state.  It  would  be  difficult  in  many  cases  to 
decide  the  amount  in  controversy.  In  looking  over 
the  books  he  had  found  that  there  were  numerous 
cases  where  actions  in  trover  turned  upon  the  right 
of  property,  and  were  decided  by  jury.  This 
amendment  did  not  appear  altogether  lawyer-like. 
•There  was  no  application  of  it  to  any  particular 
court ;  and  if  intended  to  apply  to  courts  of  record 
he  believed  it  would  be  entirely  without  effect, 
because  of  the  difficulty  to  decide  the  amount  in 
controversy.  He  certainly  thought  the  amend 
raent  should  apply  only  to  justices'  courts,  or 
Otherwise  it  would  lead  to  breaking  down  one  ol 
our  most  valuable  rights. 

Mr.  STETSON  replied  that  the  legislatures 
have  been  going  on  for  years  and  reducing  the 
number.  And  whether  they  have  this  right  or 
not,  the  question  should  now  be  settled.  He 
would  therefore  support  the  pending  amendment. 
If  you  could  draw  all  causes  of  action  down  to  a 
jury  of  six  men,  then  you  can  take  a  jury  of  six 
up  to  any  court  of  record  whatever ;  engraft  a  ju- 
ry of  six  on  the  highest  court  in  the  State. 

Mr.  WORDEN — An  action  is  brought  for  tres- 
pass. 

Mr.  STETSON :  If  you  bring  in  an  action  for 
less  than  $50  in  a  justices  court,  and  the  question 
-. of  title  is  raised,  the  cause  then  goes  up  into  a 
higher  court,  and  the  lower  court  loses  its  juris- 
diction. Wherever  there  is  a  practical  doubt  as 
to  the  constitutionality  of  an  act,  it  was  our  duty 


here  to  settle  it.  Now,  what  was  the  practical 
doubt  in  this  case?  "The  trial  by  jury,  in  all 
cases  in  which  it  has  been  heretofore  used,  shall 
remain  inviolate,"  was  the  language  of  the  pro- 
position. Now,  was  it  a  question  involving  a 
certain  number  of  jurors  ?  Gentlemen  had  con- 
tended that  a  jury  was  twelve  men,  and  that  it 
was  unconstitutional  for  the  legislature  to  reduce 
the  number;  but  the  legislature  had  nevertheless 
done  so  in  certain  cases,  and  the  terms  of  the 
substitute  having  reference  to  the  jurors  "  here- 
tofore used",  would  make  it  uncertain  and  ob- 
scure. The  object  of  the  gentleman  from  Dutch- 
ess  was  to  remove  all  doubt. 

Mr.  A YRAULT,  of  Livingston,  said  this  was 
a  very  important  question,  and  the  legal  gentle- 
men here  differed  so  much  about  it,  that  he  moved 
it  be  passed  over ;  but  he  waved  this  motion  to 
allow 

Mr  JORDAN  to  rise  to  offer  as  an  amendment  that 
it  might  go  over  with  the  whole  subject ;  which 
being  assented  to,  he  moved  to  add  to  Mr.  RUG- 
GLES'  amendment,  "  and  the  jury  trial  may  be 
waived  by  the  parties  in  all  civil  cases  in  the 
manner  to  be  prescribed  by  law." 

Mr.  O'CONOR  hoped  they  would  vote  on  this 
question  now.  He  had  never  heard  so  many  le- 
gal gentlemen  speak  so  much  alike  on  any  ques- 
tion heretofore.  And  he  believed  gentlemen 
were  generally  ready  to  vote,  and  he  hoped  the 
section  might  be  now  finished,  so  that  so  much  of 
of  our  labor  would  be  got  along  with  so  far  as  the 
committee  of  the  whole  were  concerned;  and  if 
any  radical  slip  was  made,  it  might  be  corrected 
in  convention,  after  a  long  pause,  as  must  neces- 
sarily be  a  pause,  for  the  reports  of  the  judiciary 
committee  must  take  precedence  on  or  after  Mon- 
day. 

The  motion  to  pass  over  the  section  was  nega- 
tived. 

Mr.  MARVIN  moved  to  amend  so  as  to  except 
courts  of  record  from  the  application  of  Mr.  RUG- 
GLES'  amendment. 

The^CHAIR  said  the  motion  was  not  now  in 
order. 

Mr.  LOOMIS  saw  no  reason  for  the  adoption  of 
the  amendment,  as  it  would  be  but  sanctioning 
what  had  already  been  adopted  in  practice  for 
years.  It  had  long  been  the  practice  in  justice's 
courts  to  have  a  jury  trial  by  six  men  and  no 
court  in  this  state  would  ever  declare  it  to  be  un- 
constitutional. There  was  therefore  no  need  of 
sanctioning  what  had  already  been  adopted,  and 
what  the  people  would  never  consent  to  change. 
He  preferred  the  original  section,  giving  to  every 
party  the  right  to  claim  a  trial  by  jury,  and  the 
same  liberty  to  waive  it  if  they  desired. 

Mr.  CONELY  moved  to  insert  "  or  where  the 
imprisonment  is  for  not  more  than  thirty  days." 

The  CHAIR  ruled  the  amendment  to  be  out  of 
order. 

The  motion  to  fill  the  blank  with  one  hundred 
dollars  was  then  rejected,  as  was  the  motion  to 
fill  it  with  fifty. 

Mr.  HARRISON  called  on  the  laymen  to  come 
to  the  aid  of  their  professional  brethren  here. 
The  old  Constitution  he  thought  contained  all 
that  was  necessary  on  this  subject. 

Mr.  VAN  SCHOONHOVEN  denied  that  the 
tern}  jury  expressed  also  the  number.  There  was 


549 


nothing  in  the  present  Constitution,  and  it  would 
be  difficult  to  find  in  any  elementary  work,  any- 
thin?  that  authorized  the  conclusion  that  a  jury 
necessarily  meant  twelve  men.  All  that  was  un. 
derstood  by  that  term,  was  a  simple  body  of  men 
assembled  to  try  a  case  or  controversy.  But  if  in 
the  constitution,  it  was  important  to  fix  the  num- 
ber beyond  dispute,  it  seemed  to  him  to  be  very 
easy  to  say  that  every  petit  jury  should  consist  of 
12  men  in  courts  of  record,  leaving  it  to  the  legis- 
lature to  regulate  the  number  in  all  inferior  courts. 
The  only  objection  he  had  heard  to  it  was  possibly 
that  the  jurisdiction  of  justices  courts  might  be 
extended  beyond  $100.  If  that  was  ever  done 
or  seemed  safe,  it  will  be  equally  safe  to  leave  to 
the  legislature  to  say  whether  such  extended  ju- 
risdiction required  a  jury  of  nine  or  twelve  men. 
Mr.  SWACKHAMER  hoped  that  the  amend- 
ment of  the  gentlemen  from  Columbia  would  be 
adopted,  and  also  that  of  the  gentlemen  from 
Dutchess,  and  as  many  others  as  might  be  propos- 
ed, and  then  that  the  whole  of  them  would  be 
rejected,  and  a  plain  common  sense  proposition 
adopted  in  the  Constitution.  The  proposition  of 
the  committee  that  the  right  of  trial  by  jury 
should  remain  inviolate,  he  thoughtto  be  abundant- 
ly sufficient.  Mr.  S.  urged  that  no  proposition 
should  be  adopted  in  the  Constitution  but  that  could 
be  apprehended  and  understood  by  every  man. — 
But  such  was  not  the  course  pursued.  We  had 
propositions  submitted  here,  full  of  technicalities 
and  obscurities,  and  numerous  enough  arid  long 
enough  to  fill  a  book.  Why  all  this  mystery  and 
humbug.  If  it  was  proposed  to  make  a  distinc- 
tion in  suits  where  would  gentlemen  begin,  and 
where  would  they  stop.  The  man  who  had  $150 
at  stake,  had  as  much  right  to  a  jury  trial  as  he 
who  had  $500,000.  He  was  not  sure  but  he 
would  abolish  all  laws  for  the  collection  of  debts, 
and  leave  tho  matter  to  the  honesty  and  integrity 
of  men.  Much  however  could  be  said  on  both 
sides  of  that  subject.  -Why  this  clinging  to  the 
common  law,  this  eternal  dragging  of  it  in  here  ? 
Why  not  make  a  Constitution  and  laws  that  every 
man  can  read  and  understand  ?  Mr.  S.  earnestly 
opposed  the  incorporation  of  any  ambiguity  in 
the  fundamental  law. 

Mr.  JORDAN  asked  if  it  was  in  order  to  with- 
draw his  amendment.  He  did  not  want  his  pet 
lamb  brought  into  the  flock  of  amendments,  so 
kindly  by  the  gentleman  from  Kings,  [Mr. 
SWACKHAMER,]  that  its  throat  might  be  cut  with 
the  rest.  [Laughter.]  He  withdrew  his  proposi- 
tion for  the  present. 

Mr.  HOFFMAN  had  not  yet  to  learn  with  his 
friend  from  Kings,  the  great  use  in  civilized  so- 
ciety of  laws  for  the  collection  of  debts.  And  if 
he  had,  a  very  cursory  glance  over  the  earth,  at  a 
hundred  nations  where  no  such  system  of  laws 
existed,  would  satisfy  him  where  we  should  come 
to,  if  we  were  mad  enough  to  abandon  a 
sound  system  of  laws  /or  the  collection  ol  debts — 
All  Asia,  and  nearly  half  of  Europe  could  tell  him 
what  would  be  the  consequence  of  abandoning 
such  a  system — one  man  a  prince  or  master,  the 
mdss,  slaves.  That  was  the  history  of  mankind 
wherever  there  were  no  good  system  of  laws  for 
the  collection  of  debts,  and  he  hoped  his  friend 
from  Kings,  before  he  finished  his  education  on 
the  subject  would  take  the  pains  to  look  after  the 


consequences,  tor  he,  Mr.  H.,  knew  him  well, 
and  in  his  heart  there  was  nothing  on  Cud's  earth 
that  he  would  abhor  more  than  the  consequences 
that  would  inevitably  grow  out  of  his  own  propo- 
sition. 

Mr.  SWACKHAMER;  I  was  not  decided  in 
my  views,  I  merely  threw  it  out. 

Mr.  HOFFMAN  believed  the  gentleman   had 
not  decided  and  did  only  throw  it  out.     The  labors 

f  thisConventiori,whethersuccessfulor  not,on  this 
subject  are  well  worthy  of  it.  He  held  in  common 
with  those  who  had  spoken  most  warmly  in  favor 
of  the  trial  by  jury,  that  not  only  was  it  the  palla- 
dium of  liberty,  in  the  strong  sense  of  the  En- 
glish law,  as  constituting  the  shield,  the  safe-guard 
of  the  subject,  against  the  fixed  magistrate  of  the 
Crewn,  but  further,  that  it  was  the  great  school  of 
civil  wisdom  in  any  free  or  constitutional  country 
—which  more  than  all  others  put  together,  taught 
the  practical  lessons  of  libexty  and  freedom. — 
And  therefore  he  desired  as  strongly  as  any  mem- 
ber here,  lhat  this  part  of  the  Constitution  should 
be  fixed  and  definite.  But  he  differed  from  the 
Constitutional  lawyers  who  had  expressed  an  opin- 
ion on  the  subject,  and  although  it  was  many 
years  since  he  had  occasion  by  the  necessities  of 
his  profession,  to  look  over  the  question,  still  he 
would  venture  to  express  an  opinion  different  from 
the  one  which  seemed  to  prevail.  It  seerns  to  be 
supposed  that  the  word  jury  implied  twelve  men, 
and  he  believed  this  to  be  an  entire  mistake.  The 
highest  jury  known  to  the  common  law,  the  jury 
not  of  twelve  men  but  of  sixteen— sixteen  Iree- 
holders  to  use  the  language  of  this  day — sixteen 
knights,  to  use  the  language  of  the  military  age 
in  which  it  had  its  origin.  The  men  who  fought 
were  the  owners  of  the  land,  and  very  few  were 
owners  of  the  land  who  did  not  fight.  Ordinarily 
in  the  king's  court  of  records,  a  jury  did  mean 
twelve  men.  He  was  not  able,  on  the  instant,  to 
recollect  whether  in  any  of  the  numerous  subor- 
dinate tribunals  of  Great  Britain,  a  jury  of  less 
than  twelve  men  were  employed,  although  he 
should  think  it  very  extraordinary  if  there  had 
not  been  cases  of  the  kind.  But  in  most  of  the 
minor  courts  there  were  no  juries  called,  the  subor- 
dinate magistrates  usually  deciding  the  cases  them- 
selves. How  was  it  when  the  constitution  of '77  was 
adopted  ?  Had  there  been  no  instance  prior  to 
that  time,  in  which  in  a  subordinate  court,  not  of 
record,  there  had  been  a  jury  of  less  than  twelve 
men  ?  When  that  instrument  was  framed,  did  not 
its  framers  know  what  had  been  the  fixed,  prac- 
tical construction  of  the  word  jury,  and  when 
subsequent  legislation  gave  it  the  construction  it 
received,  and  when  the  courts  followed  it,  did 
they  not  know  that  they  were  unquestionably 
right  ?  He  believed  that  history  would  show  that 
the  legislature  had  in  no  instance  construed  it 
contrary  to  that,  and  the  courts  in  supporting  that 
construction  have  done  no  violence  to  the  instru- 
ment. If  he  was  right  in  this  conclusion,  then 
the  report  of  the  committee  on  the  subject  is  as 
definite  and  as  certain  as  it  could  be  made,  and  the 
only  open  question  was  the  one  sought  to  be  set- 
tled by  the  gentleman  from  Columbia.  The  right 

of  tria'l  by  jury  was  not  only  the  right  of  the  per- 
sons tried,  but  it  was  the  right  of  the  citizen  to 
be  a  juror.  It  is  his  right  to  sit  in  judgment  upon 
the  controversies  of  his  fellows.  It  was  a  right 


550 


more  important  in  his  opinion  than  the  right  of 
suffrage  itself,  and  he  would  as  soon  expect  to 
hear  a  rational  man  complain  that  he  was  obliged 
to  breathe  in  order  to  live,  and  to  act  with  cir 
cumspection  in  order  to  be  free — that  he  was  not 
divested  of  the  duties  which  freedom  under  God, 
imposed  upon  every  thing  human — as  to  hear 
him  complain  of  the  burthen  of  being  a  juror.  It 
was  under  God  the  highest  power  a  man  could 
exert.  He  is  to  sit  in  judgment  on  the  contro- 
versies of  his  fellows,  and  he  should  never  yield 
it  One  step  further  and  it  would  be  taken  from 
him.  Such  had  been  the  history  in  all  ages.  Let 
no  man  then  in  free  America  yield  without  a  strug- 
gle his  right  to  be  a  juror.  It  was  not  merely  a 
question  as  to  the  person  to  be  tried,  although  it 
is  important  to  him  and  was  designed  and  intend- 
ed as  a  shield  of  right  against  the  partiality  and 
the  oppressions  of  the  fixed  magistrates  of  the  go- 
vernment. If  we  adopt  the  amendment  as  report- 
ed by  the  committee,  there  may  be  a  question 
whether  the  parties  themselves  in  any  case  in 
which  no  issue  of  fact  should  be  joined,  would 
have  the  right  to  abandon  that  mode  of  trial. 
And  if  the  Convention  should  be  of  the  opinion 
that  this  exercise  of  discretion  ought  to  be  allow- 
ed, the  amendment  of  the  gentleman  from  Colum- 
bia ought  to  be  adopted.  He  was  aware  that  in 
adopting  it,  it  would  be  invading  the  general 
rights  of  the  citizen  to  act  as  a  juror.  He  saw 
the  danger  of  that  invasion,  but  the  inconvenience 
on  the  other  hand  of  not  allowing  this,  was  very 
great.  In  the  choice  of  difficulties  therefore  he 
should  vote  with  the  gentleman  from  Columbia. 

Mr.  SWACKHAMER  would  like  to  inquire  01 
his  liiend  in  what  civilized  govtmnient  at  the  pre 
sent  day  there  did  not  a  system  of  laws  for  the 
collection  of  debts,  exist  ? 

Mr.  HOFFMAN  :  The  gentleman  qualifies  his 
inquiry  sof  that  I  might,  within  the  sense  of  the 
word,  and  with  propriety,  answer  him  that  there 
was  none.  Ttie  very  want  ot  such  a  system  was 
an  act  of  barbaiianism.  But  if  the  gentleman 
would  look  into  any  of  the  countries  ot  Europe, 
he  would  see  the  laboring  man — the  man  of  small 
claims— borne  down  and  oppressed  lor  the  want 
of  laws  to  enfoice  the  payment  of  those  claims. 

Mr  JORDAN  withdrew  his  amendment  for  the 
time  being. 

Mr.  RUGGLES  accepted  the  amendment  of  Mr. 
MANN,  but  his  entire  proposition  was  rejected. 

Mr.  KINGSLKY  moved  to  amend,  so  that  the 
legislature  might  prescribe  that  injustices'  courts 
a  jury  might  consist  of  six  persons.  Lost. 

Mr.  JORDAN  offered  his  amendment  that  trial 
by  jury  might  be  waived  on  the  consent  of  parties. 

The  amendment  was  further  debated  by  Messrs. 
KIRKLAND,  HARRIS,  JORDAN,  TAGGART, 
PERKINS,  J.  J.  TAYLOR,  O'CONOR,  when 
the  question  being  taken,  it  was  adopted. 

Mr.  BRUNDAGE  had  supposed  that  when  the 
constitution  secured  to  every  man  the  right  of  tri- 
al by  jury,  that  that  was  the  amount  of  the  provi- 
sion, and  that  the  particular  manner  of  conduct- 
ing these  trials  was  left  to  the  legislature  for  their 
regulation.  But  suggestions  had  been  thrown  out 
that  the  trial  by  jury,  according  to  common  law 
construction,  implied  twelve  men.  Still,  he  un- 
derstood the  rule  to  be  that  the  statute  law,  when 
in  conflict  with  the  common  law,  was  paramount, 


and  that  of  course  this  matter  of  the  number  of 
jurors,  whatever  might  be  the  common  law  rule, 
was  under  the  control  of  the  legislature.  Again, 
the  rule  of  law  by  which  jurors  in  justices'  courts 
are  limited  to  six,  had  been  so  long  in  practice, 
and  so  long  acquiesced  in,  that  it  in  itselfbecame 
a  part  of  the  common  law.  That  they  were  evils 
growing  out  of  the  abuse  of  trial  by  jury,  there 
was  no  doubt,  and  there  was  as  little  doubt  in  his 
judgment,  that  they  were  certainly  within  the 
reach  of  legislation,  by  regulations,  as  the  causes 
and  number  of  challenges.  He  alluded  to  cases 
before  the  higher  courts.  He  was  aware  of  evils 
existing  injury  trials  before  magistrates — but  he 
had  never  been  able  to  devise  a  remedy  for  them. 
Mr.  B.  concluded  by  moving  to  add  a  provision 
giving  to  the  legislature  power  to  prescribe  the 
qualifications,  compensation  and  number  of  ju- 
rors, and  the  causes  and  number  of  challenges. 

The  amendment  was  lost. 

Mr.  BROWN  offered  the  following  as  a  5th  sec- 
tion : — 

(j  5.  The  Legislature  shall  have  no  power  to  pass  any 
law  to  defeat  or  in  any  wise  affect  the  recovery  of  the 
money  mentioned  in  negociable  paper  upon  the  ground  of 
usury,  where  such  paper  is  held  by  a  person  who  has  re- 
ceived the  same  in  good  faith,  for  a  valuable  consideration, 
and  without  actual  notice  of  such  usury. 

After  a  few  remarks  from  Mr.  RICHMOND  in 

opposition,  this  section  was  rejected. 

The  5th  section  was  then  agreed  to  as  follows : 
§  5.  Excessive  bail  shall  not  be  required,  nor  excessive 

fines  imposed;  nor  cruel  nor  unusual  punishments  iuflic- 

ted. 

The  6th  section  was  read,  as  follows  : 
§  6.  The  free  exercise  and  enjoyment  of  religious  pro- 
fession and  worship,  without  discrimination  or  preference, 
shall  forever  be  allowed  in  this  State  to  ail  mankind;  but 
the  liberty  of  conscience  hereby  secured  shall  not  be  so 
construed  as  to  excuse  acts  of  licentiousness,  or  justify 
practices  inconsistent  with  the  peace  or  salety  ot  this  State. 

Mr.  HARRIS  moved  to  add  after  the  word 
"  mankind,"  the  following : 

"  And  the  Legislature  shall  provide  by  law  for  the  effec 
tual  protection  of  the  rights  ot  conscience,  so  th-it,  in  the 
exercise  thereof,  no  person  shall  suiter  in  person  or  es- 
tate." 

Mr.  H.  said  he  offered  this,  having  reference  to 
a  class  of  Christians  in  our  State,  who  were  very 
respectable  in  number  and  among  the  be-*t  class  of 
our  citizens.  He  referred  to  the  Seventh  Day 
Baptists,  so  called.  They  had  been  subjected  to 
embarrassing  hannbsmems  by  ill-dispostd  persons, 
who,  by  selecting  Saturday,  then  Sabbath,  as  the 
day  to  bring  suits  against  them,  in  that  way  very 
often  inflicted  seiious  injury  upon  them  unless 
they  would  forego  their  rights  of  conscience. — 
The  Legislature  had  heretofore  refused  to  take  ac- 
tion  lor  their  protection,  and  this  was  only  inten- 
ded to  require  them  to  legislate. 

The  amendment  was  adapted. 

Mr.  CORNELL  moved  to  strike  out  the  sixth 
section,  arid  insert  in  lieu  thereof,  the  following: 
"  The  mind  being  by  nature  free,  all  men  have  an  inhe- 
rent, unalicnableand  indctc-asible  right  to  the  full  and  free 
exercise  of  the  faculties  thereof;  and  to  form,  hold  and 
utter  opinions  upon  all  subjects.  The  free  exercise  and 
enjoyment  ol  religious  p1oiessiou  and  worsnip,  wi  hout  dis- 
crimination or  piefpn nee,  shall  not  be  infringed;  but  no 
man  shall  be  comj  elled  to  attend  or  support  any  religious 
worship,  place  or  ministry,  of  any  name,  nature  or  de- 
scription whatever;  except  to  iulfil  a  contract  to  give  pe- 
cuniary support,  voluntarily  and  freely  made;  nor  enforc- 
ed, restrained,  molested  or  burthened  in  mind,  body  or 


551 


Roods-  nor  otherwise  surfer  on  account  or  in  consequence 
of  any  cieed,  opinion  or  bi-li-f,  touching  matt- rs  ol  reli- 
gion philosophy  or  other  subjects,  nor  shall  the  same  in 
any  wist:  diminish,  enlarge  or  afiect  his  political  or  civil 
capacity,  co^poU-ncy  er  duty.  But  the  liberty  of  con- 
science  hereby  secured  to  all  mankind  within  tins  state, 
shall  not  be  so  construed  a-i  to  »'X  use  acts  of  licentious- 
ne-s  or  justify  practices  inconsistent  wiih  the  peace  and 
safety  of  this  sta.e." 

This  was  negatived. 

Mr.  TAGGART  moved  to  insert  after  the  word 
**  mankind" — 

"  And  no  person  shall  be  deprived  of  any  right  or  pro- 
vision, or  rendered  incompetent  as  a  witness,  on  account 
of  his  religious  belief  or  unbelief." 

Mr.  T.  briefly  advocated  his  amendment,  and 
it  was  adopted. 

Mr.  DANFORTH  here  sent  up  the  following- 
being  a  transcript,  he  remarked,  of  a  section  in 
the  old  Constitution: — 

"  "Whereas  the  ministers  of  the  gospel  are,  by  their  pro 
fession,  dedicated  to  the  service  of  God,  and  the  cure  oi 
souls,  and  ought  not  to  nc  diverted  from  the  great  duty  ol 
their  Junctions;  therefore  no  minister  of  the  gospel  or 
priest  of  any  denomination  whatever,  shall  at  any  time 
hereafter  under  any  pretence,  or  description  whatever,  be 
eligible  to  or  capable  of  holding  any  civil  or  military  of- 
fice or  place  within  this  state." 

Mr.  PATTERSON  had  supposed  the  time  had 
gone  by  when  any  class  of  citizens  was  to  be  pro- 
scribed. He  thought  we  should  extend  equa1 
rights  to  all.  Why  should  these  persons  be  ex 
eluded  ?  Would  our  liberties  be  endangered  by 
placing  Clergymen  on  a  par  with  other  profes 
sional  men  ?  He  would  give  them  equal  rights 
and  subject  them  to  the  same  burthens  as  othe] 
citizens.  He  would  allow  them  to  hold  office,  i 
the  people  willed,  and  would  repeal  the  law  ex 
empting  them  from  taxation. 

Mr.  SALISBURY  followed  on  the  same  side 
As  to  the  exemption  from  taxation,  Mr.  S.  point 
ed  out  the  practical  operation  of  the  law.  Man; 
Mormons  hia.l  availed  themselves  of  this  exemp 
tion  by  ordination  of  their  own  sort.  He  woul< 
repeal  that  law,  and  also  wipe  out  from  the  Con 
stitution  the  odious  distinction  which  had  hither 
to  been  held  up  in  that  instrument. 

Mr.  TAGGART  also  warmly  opposed  the  pro 
posed  section,  pointing  out  its  injustice. 

Mr.  CUOOKrJK  saiu  thai  he  ditiered  altogethe 
from  the  geniiemen  who  had  preceded  himiu  thi 
debate.  He  was  in  favor  of  the  section  propose 
by  the  gentleman  fiom  Jefferson.  He  believe 
t'uat  there  was  no  section  ol  our  present  constiiu 
lion  which  had  been  more  carefully  considered 
more  deliberately  adopted,  than  the  one^tthich  i 
was  now  proposed  to  reinstate.  It  was  inserte 
for  wise  and  patriotic  purposes  by  the  ernineri 
statesmen  who  composed  the  Convention  of  1S21 
The  wisdom  ot  Ihe  prohibition  it  contained  ha 
iiever  been  called  in  question.  Botti  the  peopl 
arid  the  priesthood  have  been  content  with  its  pro 
visions.  Its  effect  was  consei vative,  and  most  ar 
dently  did  he  hope  that  in  this  particular  we  sha 
leave  the  constitution  as  we  found  it.  No  rna 
had  a  greater  respect  for  the  proletsion  in  genera 
than  himself.  But  it  must  be  remembered  tha 
priests  were  but  men.  That  they  possessed  th 
ambition  and  pride  incident  to  humanity.  Tha 
like  other  men,  they  were  divided  imo  two  clas.* 
e? — the  pure  and  the  impure.  He  believed  lha 
as  many  knaves  weie  to  be  found  in  clerical  robes 
in  propwtion  to  their  numbers,  as  in  any  othe 


ass  of  citizens,     lie  would  frankly  confess  that 
e,  tor  one,  v\a«  jealous  of  die  power  and  influence 

the   priesthood.     It   w.is  perhaps  true,  that   as 

ng  as  so  rn-iny  and  vaiious  denominations  exist- 
1,  and  while  the    thousand  sectarians   continutd 

battle  the  fragments  ot  each  other's  faith,  that 
ogieal  danger  of  any  attempt  to  unite  church 
ud  stale  could  be  apprehended.  Their  divisions 
ow  constituted  our  security  against  such  an  altei- 
ative.  But  times  and  circumstances  may  mate- 
ially  change.  The  love  ot  office  and  the  lust  of 
ower  may  serve  as  a  chain  to  draw  and  bind  them 
ogether.  From  his  own  observation,  he  did  not 
elieve  them,  as  a  class,  to  be  safe  depositories  ot 
ower,  Their  peculiar  calling,  if  it  waslollowed 
sit  should  be,  most  eminently  unfitted  them  for  the 
uties  ot  legislation  and  administering  ihe  laws  in 
ecular  offices  with  impartiality.  It  was  well  known 
hat  now,  restricted  as  they  are,  they  wielded  in  our 
ocul  elections  a  tremendous  power.  And  it 
vas  equally  certain  that  their  influence  was  not 
Iwavs  well  and  wisely  directed.  He  desired  to 
lonfine  them  to  the  proper  and  legitimate  duties 
>f  the  holy  calling  they  have  chosen.  He  believed 
t  was  wisdom  to  keep  them  tree  and  unspotted 
rom  the  defilements  of  political  ambition.  He  did 
not  believe  that  a  single  pious  and  high-minded 
)nest  in  the  state  desired  the  abrogation  of  this 
>rovision.  Ministers  of  this  character  were  will- 
ntj  to  be  set  apart  for  the  service  of  God  and  the 
offices  of  religion.  It  tended  to  keep  their  eyes 
fixed  on  the  glories  of  another  world.  Upon  them 
t  operated  not  as  a  leatriction  but  as  a  shield 
against  the  lorce  and  power  of  temptation.  The 

rovision  of  the  constitution  \\as  necessary  for  the 
protection  ol  the  clerical  profession.  He  did  not 
wish  to  do  anything  that  might  tend  to  lessen  or 
destroy  the  sacredness  ot  the  priestly  office.  If 
you  destroy  this  reduction  you  confer  no  benefit 
>r  boon  upon  the  valuable  portion  of  the  clerav. 
They  will  be  content  with  their  dedication  to  God 
and  ihe  cure  ot  souls.  They  will  never  consent 
to  become  candidates  for  office  while  they  are  true 
ministers  of  a  pure  gospel.  The  corrupt  arid  the 
vicious  of  the  clergy  alone  would  seek  to  reach 
official  stations.  Have  we  not  enough  ot  corrup. 
tion  now  in  our  political  scrambles  for  offices, 
without  throwing  the  priesthood  into  the  arena  ? 
The  love  of  office  and  power  had  many  and  strong 
temptations  for  the  human  mind,  and  the  purest 
priest  had  the  passions  and  ambitions  of  men  like 
ourselves.  Was  it  wise  to  invite  a  holy  and  hit>h- 
minded  ministry  to  mingle  in  the  corrupting 
conflicts  of  our  political '  elections  ?  Would  it 
not  hazard  Ihe  sac-redness  of  their  piety  arid  soil 
i  heir  robes  of  office?  He  implored  gentlemen 
to  pause  and  reflect.  Will  not  the  destruction 
of  this  protective  provision  not  only  endan- 
ger the  freedom  of  elections  but  also  t-nd  to 
degrade  the  priestly  office  and  character  ? — 
It  is  said  that  this  restriction  puts  the  priest  upon 
a  level  with  the  convict.  This  cannot  be  true. — 
The  priest  is  allowed  the  privilege  of  the  ballot 
of  which  the  convict  is  deprived.  The  prohibi- 
tion of  the  right  of  suffrage  to  the  convict  is  the 
result  of  his  crime.  It  is  forced  upon  him,  and 
there  is  no  way  of  escape  by  his  own  act  fi  orn  the 
privation.  Not  so  with  the  clergy.  By  them, 
the  prohibition  is  assumed  by  their  own  volunta- 
ry act.  They  choose  their  profession  with  a  full 


552 


knowledge  of  its  terms  and  disabilities.  There 
is  no  force  in  the  case.  Neither  is  there  any 
thing  of  imputation  in  the  restriction.  We  assign 
them  a  higher  and  holier  function.  We  but  say 
to  them  that  so  long  as  they  remain  dedicated  to 
their  holy  calling,  we  intend  to  keep  them  free 
and  aloof  from  the  corrupting  influence  and  mis- 
erable scrambles  for  office  and  power.  Have  we 
not  always  restrained  our  high  judicial  officers, 
and  others  in  the  same  way,  in  order  to  keep  the 
channels  of  justice  pure  and  above  suspicion.— 
And  is  it  not  proper  as  rigidly  to  guard  those  who 
are  set  apart  for  the  cure  of  souls,  as  the  judges 
who  watch  over  the  right  of  property.  The  cer- 
tain tendency  of  the  restriction  was  to  keep  them 
pure  and  unspotted  from  the  world.  It  kept 
their  profession  safe  above  the  storms  of  political 
turmoil,  and  saved  them  from  the  strong  and  al- 
luring temptations  to  which  they  would  otherwise 
be  exposed.  It  kept  the  vile  from  assuming  the 
robe  It  was  the  safeguard  of  religion  itself 
against  the  tide  of  corruption,  that,  during  polit- 
ical struggles,  overspread  the  land.  If  he  should 
find  a  clergyman  who  desired  to  enter  the  field  of 
political  warfare,  he  should  consider  it  strong 
eveidence  that  he  was  unfit  for  the  station  he 
held.  If  any  such  priest  desired  to  get  relieved 
from  the  restrictions,  it  was  always  in  his  power 
to  do  so.  They  have  nothing  to  do  but  cast  aside  the 
priestly  robe.  They  could  thus  by  their  own  act 
render  themselves  eligible  to  all  the  offices  and 
honors  of  the  state.  It  was  safe  to  continue  the 
conservative  principle  of  the  section ;  and  if  he 
stood  alone,  his  vote  would  be  recorded  in  favor 
of  continuing  the  restriction. 

Mr.  DANFORTH  did  not  design  to  kindle  un 
tins  tire,  when  he  transcribed  this  section  Irom 
the  present  constitution.  But  the  debate  having 
taken  the  turn  it  had,  he  felt  called  upon  to  make 
a  tew  remarks,  and  especially  to  repel  the  intiriiH- 
tion  that  he  undervalued  the  ministers  of  the  gos- 
pel He  had  no  idea  of  classing  them  with  fel- 
ons', outlaws  and  outcasts,  as  the  gentleman  from 
Gene&ee  seemed  to  imagine.  This  was  not  the 
estimation  in  which  he  held  this  distinguished 
and  venerated  class  of  men.  There  was  no  class 
whom  he  regarded  with  more  respect  and  defer- 
ence. The  reasons  why  he  would  not  have  them 
eligible  to  civil  office,  was  expressed  in  the  sec- 
tion he  had  sent  to  the  chair.  They  were  by  pro- 
fession devoted  to  the  service  ot  God  and  the 
cure  of  souls.  That  was  reason  sufficient  why 
they  should  be  excluded  from  a  participation  in 
our  political  st rites.  But  there  were  higher  con- 
siderations. To  them  were  committed  the  cul- 
ture of  the  mass  of  mind  that  was  soon  to  occupy 
our  places  in  society  and  in  official  station.  There 
was  a  supreme  ruler  of  the  universe.  These  men 
professed  to  be  his  ministers— special  teachers  of 
Truth  which  he  had  given  us  to  enlighten  our 
path  through  this  wilderness  world.  We  invited 
them  to  come  here  each  day  at  the  opening  of  our 
sessions,  and  invoke  the  blessing  of  God  on  us- 
that  was  a  virtual  recognition  of  their  high  and 
honorable  station.  He  trusted  no  man  would  im- 
Bute  to  him  a  disposition  to  lower  and  and  degrade 
it  As  tar  as  h  is  knowledge  extended  of  this  class 
of  men,  he  never  had  known  one  of  them  express 
a  desire  to  be  recognised  as  politicians,  or  a  wil- 
lin<*ness  to  come  into  our  political  suites.  That 


they  did  sometimes  exeteise  the  elective  fran- 
chise, was  true;  and  it  was  their  undoubted 
right  and  duty  to  aid  in  elevating  to  high  places 
those  who  they  regarded  as  best  calculated  to  ad- 
minister the  government. ,  But  all  who  valued 
rightly  the  importance  of'their  ministration,  and 
the  salutary  influence  which  their  example,  not 
less  than  their  services,  were  calculated  to  ex- 
ert— would  not  desire  to  see  them  in  the  political 
arena,  mingling  in  the  active  duties  of  a  political 
campaign,  and  themselves  the  candidates  of  dif- 
ferent parties,  for  party  favor.  Much  less  ought 
we  to  incite  by  such  a  course,  the  slightest  ap- 
proach to  that  union  of  church  and  state,  which 
had  been  found  to  be  so  fruitful  of  evil  in  other 
counties,  to  both.  If  he  was  rightly  informed, 
this  very  article  was  drawn  by  the  hands  of  the 
distinguished  President  Nott,  of  Union  College. 
He  considered  it  essential  to  the  influence  of  the 
ministry.  This  was  the  testimony  of  one  of  this 
profession,  to  the  importance  of  this  exclusion. — 
So  far  as  he  knew,  it  was  desired  by  the  clergy 
themselves.  There  might,  however,  be  among 
them,  those  who  were  ambitious  of  political  as 
well  as  ecclesiastical  honors ;  and  he  trusted  this 
Convention  would  retain  a  provision,  under  which 
we  had  lived  for  a  quarter  of  a  century. 

Mr.  A.  W.  YOUNG  was  truly  rejoiced  to  find 
that  the  committee  who  reported  this  article  had 
a  sufficient  regard  for  intelligence  and  equal 
rights  as  to  leave  out  this  section,  which  it  now 
proposed  to  reinstate.  For  this  they  were  enti- 
tled to  his  thanks.  We  had  been  told  that  this 
class  did  not  ask  for  the  repeal  of  this  prohibition. 
Who,  he  would  ask,  were  to  judge  of  that?  If 
they  were  as  good  men  as  had  been  alleged,  then 
certainly  there  was  no  necessity  to  exclude  them 
by  a  constitutional  provision.  It  was  also  said 
their  calling  was  such  that  they  could  not  inform 
themselves  on  political  subjects.  Mr.  Y.  knew 
of  many  from  whom  he  might  well  learn  lessons 
of  statesmanship.  It  was  the  duty  of  all  to  in- 
form themselves  of  the  policy  of  government,  so 
that  they  could  vote  understandingly.  Mr.  Y. 
objected  to  this  for  a  further  reason.  It  would  be 
holding  out  a  bribe  for  bad  conduct.  For,  put 
this  in  the  Constitution,  and  it  would  be  saying 
only  in  fact,  that  if  a  clergyman  would  only  be- 
come so  bad  that  he  was  unfit  to  act  as  clergyman, 
he  might  then  hold  office.  He  did  not  say  that  a 
clergyman  could  discharge  the  duties  of  his  of- 
fice and  at  the  same  time  hold  a  seat  in  the  Le- 
gislature. But  there  were  many  offices,  like  that 
of  inspector  of  schools,  the  duties  of  which  they 
could  well  discharge.  As  to  the  exploded  doc- 
trine that  this  would  be  a  union  between  church 
and  State,  that  was  too  stale  to  rest  a  word  of  ar- 
gument upon.  Neither  could  he  see  much  sound- 
ness in  the  objection  that  they  were  too  holy  to 
mingle  in  political  scenes. 

Mr.  BURR  moved  to  amend  by  inserting  "prac- 
tising physicians."  It  was  very  inconvenient 
to  him  to  have  his  family  doctqr  taken  away  by 
his  duties  in  the  legislature.  He  should  like  to 
make  a  speech  on  this,  but  he  was  too  hungry. 

Some  conversation  ensued,  when  Mr.  SHE- 
PARD  moved  to  rise  and  report. 

Two  votes  were  taken  on  this,  but  no  quorum 
voted  either  time. 


553 


Mr.  CHAIR  then  rose  and  reported  that  fact  to 
the  Convention. 

Mr.  CROOKER  moved  to  adjourn.  Agreed  to, 
ayes  41,  noes  -2  I. 

Adjourned  to  9  o'clock  on  Monday  morning. 

MONDAY  (58th  day,)  Aug.  10. 

Prayer  by  Rev.  Mr.  MORROW. 

Mr.  BOUCK  presented  a  memorial  relative  to 
the  unfinished  public  works,  canals,  and  canal 
tolls,  and  the  canal  debt  and  revenue,  from  vari- 
ous  citi/ens  of  Madison  county.  Referred  to  the 
committee  of  the  whole  having  charge  of  the  re- 
port ot  Mr.  HOFFMAN,  &c. 

Mr.  J.  J.  TAYLOR  presented  a  remonstrance 
from  the  academy  at  Owego,  Tioga,  co.,  against 
depriving  the  colleges  and  academies  of  this  State 
of  a  portion  of  the  literature  fund. 

Referred  to  the  committee  of  the  whole  having 
charge  of  the  report  of  Mr.  NICOLL. 

Mr.  CLARK  presented  a  similar  remonstrance 
from  the  Mexico  Academy. 

Referred  to  the  same  committee. 

The  PRESIDENT  presented  a  report  from  .the 
Comptroller  in  reply  to  a  resolution  calling  for 
the  sums  paid  to  the  Commissary  General.  Also 
a  report  from  the  Comptroller  in  relation  to  the 
loans  made  to  pay  the  Canal  debt  and  the  appro- 
priations for  the  same.  / 

Both   were  referred   to   the   committee  of  the 
whole  having  charge  of  Mr.  HOFFMAN'S  report. 
MONIES  IN  THE  HANDS   OF  THE  CHANCELLOR. 

Mr.  RUGGLES  from  the  judiciary  committee 
said  that  on  Monday  last  a  resolution  was  referred 
to  the  judiciary  committee  requiring  certain  in- 
formation from  the  Chancellor  relative  to  monies 
in  his  possession,  the  property  of  suitors,  &c. — 
The  committee  thought  it  proper  that  this  infor 
mation  shou.ld  be  obtained  and  laid  before  the 
Convention,  and  therefore  recommended  the 
adoption  of  the  resolution. 

Resolved,  That  the  Chancellor  of  this  State  be  request- 
ed to  direct  the  Register,  Assistant  Register  and  Clerks, 
to  furnish  to  this  Convention  the  separate  and  distinct 
items,  \viththe  names  oi  all  the  estates,  heirs,  owners  and 
parties  claiming  and  interested,  for  whose  benefit,  and  for 
what  purposes  the  funds  are  held,  whether  in  trust  or  oth- 
wise,  with  the  dates  of  the  receipt  of  all  the  funds,  compri- 
sing and  making  the  aggregate  amount  reported  or  fur- 
nished in  this  Convention  by  the  Chancellor,  as  subject  to 
the  order  and  control  of  the  Court  of  Chancery,  up  to 
January,  1846. 

Mr.  RUGGLES,  however,  said  he  would  move 
to  strike  out  the  word  "  estates." 
^Mr.  MANN   said  he  would  not  object   to  that 

The  word  "  estates"  was  then  stricken  out. 

Mr.  O'CONOR  said  the  Convention  was  some- 
what thinly  attended  [there  were  not  70  present] 
and  as  this  was  a  delicate  matter,  he  would  move 
that  the  report  and  resolution  be  laid  on  the  table 

The  question  on  this  was  put  and  the  motion 
was  lost. 

Mr.  BROWN  said  that  he  was  in  favor  of  the 
resolution  ;  still  if  gentlemen  desired  it  he  was 
willing  that  it  should  lay  over  for  a  day  or  two 

Mr.  MANX  said  it  was  pretty  generally  conce 
ded  by  the  members  of  the  Convention  that  the 
Court  of  (*ii;nieery  was  to  be  abolished  by  t!u> 
^itution  to  be  presented  to  the  people 
for  their  ratiiication,audthis  large  fund  now  under 
its  control,  was  now  placed  in  the  hands  of  Re- 

44 


Bisters  and  Clerks,  and  by  them  in  Banks  arid 
Trust  Companies,  and  otherwise  disposed  of. — 
le  thought  that  this  Convention  and  the  people 
,hould  know  where  it  was,  and  to  whom  it  be- 
onged.  Large  amounts  of  this  fund  had  been  ac- 
cumulating for  10,  20,  30  and  even  40  years,  and 
Belonged  to  deceased  persons  and  litigants,  who 
;vere  dead  and  gone.  And  their  heirs  and  the 
egitimate  owners  knew  nothing  of  the  existence 
jf  such  funds  or  of  their  right  to  claim  them  and 
get  their  own.  He  conceived  it  to  be  the  duty  of 
his  Convention,  as  it  was  about  to  abolish  this 
court,  to  have  the  information  asked  for  by  the 
•esolution,  which  would  expose  the  condition  of 
:hese  funds,  and  by  giving  publicity  to  the  items, 
enable  the  legal  owners  to  claim  and  obtain  their 
rights. 

Mr.  O'CONOR  said  that  as  the  resolution  seem' 
ed  likely  to  pass,  he  telt  himself  compelled  to 
say  a  word  or  two  in  opposition.  Nothing  that 
fiad  yet  been  said  upon  that  iloor  had  convinced 
him  of  the  propriety  of  passing  this  resolution  ; 
in  addition  to  tliis  he  thought  he  could  clear- 
ly see  that  much  inconvenience,  if  not  positivly 
mischief  would  arise  from  the  adoption  of  this  re- 
solution, to  say  nothing  of  the  great  labor  and 
trouble  which  it  would  cause  th.e  Registers  in 
Chancery.  The  various  and  complicated  subject  • 
in  dispute  in  the  Court  of  Chancery  were  altoy-ft  Pi- 
er private  matters,  and  he  did  not  think  that  it 
was  a  legitimate  duty  of  the  Convention  to  en 
quire  how  much  money  in  that  Court  belonged  to 
A.  B,  and  how  much  of  it  belonged  to  C.  D. — 
Now  if  the  information  was  really  necessary,  and 
the  Legislature  should  neglect  to  obtain  it,  or 
rather  were  likely  to  do  so,  then  they  might  en- 
join  on  that  Court  or  the  Registers,  to  make  a 
publication  every  year,  containing  a  list  of  all 
these  monies,  &c.  For  his  own  part,  he  was  no 
champion  of  the  court  of  chancery,  nor  did  he 
wish  to  be  understood  as  desiring  to  keep  any  of 
the  matters  connected  with  that  Court  in  a  state 
of  secresy. 

Mr.  MANN  said  that  it  was  now  pretty  general- 
ly understood  that  the  Court  of  Chancery  was  to  be 
abolished. 

Mr.  WORDEN  said  that  in  his  judgment  it 
would  be  much  better  to  make  some  other  dispo- 
sition of  the  funds  at  present  in  the  court  of 
chancery  than  to  leave  the  same  in  the  hands  of 
irresponsible  clerks.  Now  the  legislature  it  was 
well  known  had  chartered  the  New  York  Life 
and  Trust  Company,  and  in  that  charter  had  ac- 
tually authorized  the  Chancellor  to  place  the 
funds  he  had  in  the  keeping  of  that  company  and 
which  funds  were  to  be  managed  by  that  Compa- 
ny ;  for  his  own  part  he  sincerely  hoped  that  the 
legislature  would  adopt  something  like  the  rule 
established  in  England,  when  they  came  to  revise 
the  courts.  He  would  like  them  to  adopt  some 
such  plan  as  the  English  one  ;  in  that  country  an 
officer  called  an  accountant  general  (who  is  un- 
der the  control  of  law)  has  charge  of  all  this  class 
of  funds,  and  from  him  the  parties  interested  in 
those  funds  can  at  any  and  all  times  obtain  all  the 
information  they  may  desire  in  relation  to  them. 
But  now  unless  the  information  sought  to  be  ob- 
tained by  this  resolution  would  lend  reflecting 
men  to  see  the  importance  of  establishing  a  dis- 
tinct court  of  equity  to  take  charge  of  these  fund* 


554 


he  really  did  not  see  what  good  object  the  publi- 
cation of  these  private  matters  would  possibly 
bring  about. 

Mr.  PATTERSON  said  that  in  reality  this 
fund  was  one  in  regard  to  which  no  part  of  it, 
belonged  to  the  State  of  New  York.  And  it  would 
be  quite  as  well  before  they  proceeded  farther,  to 
ascertain  to  whom  it  really  did  belong.  Now,  it 
was  the  property  of  individuals  ;  and  it  was  held 
in  trust  until  it  could  be  ascertained  to  which  of 
the  parties,  that  were  in  litigation,  it  belonged ; 
and  this  would  only  be  done  at  the  close  of  a  suit. 
The  Legislature,  it  was  known,  had  some  time 
back  passed  a  law  ordering  that  its  income  should 
be  appropriated  for  the  purchase  of  a  library ;  and 
a  large  and  valuable  library  had  consequently 
been°purchased  from  the  income  of  this  large 
fund,  which  had  remained  uncalled  for  from  year 
to  year,  and  for  many  years.  He  never  could  un- 
derstand why  the  legislature  should  or  had  as- 
sumed thus  to  use  these  funds,  or  to  direct  their 
use  ;  to  take  this  income,  arising  from  the  inte- 
rest'of  the  funds  of  private  parties,  and  buy  a  li- 
brary with  it ;  that  had  always  astonished  him. — 
This  fund  has  certainly  been  rapidly  accumula- 
ting for  a  great  number  of  years  ;  and  undoubted- 
ly if  the  publication  of  the  items  such  as  is 
now  called  for  by  this  resolution,  had  been 
made  years  back,  a  very  large  portion  of 
of  these  funds  would  have  found  claimants  and 
owners — rightful  owners— a  very  long  time  ag« 
He  knew  of  a  case  (by  way  of  illustrating  this; 
in  reference  to  the  publication  of  monies  deposi- 
ted in  banks.  During  the  last  war,  a  gentleman 
had  deposited  a  large  sum  of  money  in  a  certain 
bank  •  he  was  killed  in  one  of  the  battles  on  the 
lines ;  no  memorandum  was  left  by  him  to  tell 
where  the  money  was,  or  that  he  had  ever  deposi- 
ted it  at  all.  And  his  heirs  consequently  knew 
nothing  at  all  about  it,  until  several  years  after- 
wards when  the  Legislature  ordered  the  publica- 
tion of  all  the  items  of  monies  deposited  in  Banks 
that  were  unclaimed;  and  this  was  doubtless  but 
one  case  out  of  hundreds  of  a  similar  character. 

Mr.  WORDEN  said  that  a  similar  state  of 
things  existed  in  other  courts — the  Common 
Pleas,  Supreme  Court,  &c.,  a  large  amount  of 
surplus  funds  upon  various  executions,  and  un- 
claimed monies,  that  had  accumulated  in  various 
wavs  and  from  various  sources,  being  in  their 
possession.  There  should  be  an  annual  publica- 
tion of  all  these  matters. 

Mr.  PATTERSON  said  he  agreed  to  this;  but 
the  question  was,  shall  the  Convention  call  for  it, 
or  shall  it  be  be  left  to  the  Legislature? 

Mr  BROWN  said  that  he  was  in  favor  of  the 
resolution ;  but  he  rose  to  correct  an  error.  It 
had  been  stated  here  that  the  funds  thus  accumu- 
iatino-  in  the  Court  of  Chancery  was  the  property 
in  litigation.  Now,  to  a  certain  extent,  this  is 
true.  °It  is  also  true  that  property  is  often  de- 
posited in  the  Court  of  Chancery  to  abide  the 
event  of  suits ;  but  a  great  part  of  the  fund  spoken 
of  here  was  the  proceeds  of  the  sales  of  infants' 
estates,  of  those  of  absent  owners,  and  of  the  es- 
tates out  of  which  dower  and  the  rights  of  wi- 
dows were  secured.  Now,  the  legislature  had 
heretofore  received  all  the  information  relative 
to  this  particular  fund ;  the  amount  of  money,  the 
length  of  time  it  had  laid  there,  and  to  whom  it 


belonged.  Such  a  report  Vas  made  to  them  in 
1830,-  and  it  was  very  proper  that  another  should 
be  made  now.  If  the  Court  of  Chancery  was  to 
be  abolished,  it  was  necessary  that  the  Conven- 
tion should  have  this  information.  In  fact,  the 
legislature  should  have  ordered  the  publication 
of  this  every  year  ;  but  we  had  no  proof  that  they 
would  do  it,  for  they  have  not  done  it.  Still,  he 
did  not  believe  there  had  been  any  improper  use 
made  of  this  money,  but  the  whereabouts,  &c.  of 
so  large  a  fund  ought  to  be  known.  The  Court 
of  Chancery  was  not  a  secret  institution,  but  an 
agent  of  the  people  of  the  State,  and  its  deeds 
should  not  be  covered  up.  The  clerks  and  re- 
gisters give  a  bond  in  the  penal  sum  of  $20,000  or 
$10,000,  and  the  clerk  in  his  (Mr.  BROWN'S)  dis- 
trict, who  gave  a  bond  for  only  $10,000,  had  un- 
der his  control  nearly,  or  over,  $300,000. 

Mr.  SWACKHAMER  said  that  he  recollected 
very  well  that  when  a  few  years  ago,  a  gentleman 
offered  a  resolution  of  this  kind  in  the  legislature, 
it  created  a  tempest  and  commotion  in  this  cham- 
ber quite  as  great  as  that  produced  the  other  day 
by  the  thunder  storm,  which  tore  down  the  cur- 
tains and  scattered  the  members.  Now,  he  would 
ask  why  should  there  be  so  great  an  opposition 
to  this  resolution  of  enquiry  ?  If  every  thing  was 
all  fair  and  square,  why  have  any  fear  from  pub- 
lication of  the  information  ?  He  wanted  to  get  at 
it;  and  he  wished  the  resolution  to  be  adopted  at 
once. 

Mr.  RUGGLES  said  that  he  considered  the  on- 
ly question  before  the  Convention  at  this  time,  to 
be  not  whether  we  are  or  are  not  to  have  this  in- 
formation, but  whether  the  legislature  or  the 
Convention  is  to  call  for  it,  or  to  receive  it.  The 
information  would  be  very  voluminous — it  would 
require  a  long  statement,  and  the  Convention 
ought  not  to  call  for  it,  unless  there  was  a  very 
good  and  sufficient  reason  for  it. 

It  was  now  10  o'clock  and  as  the  judiciary  re- 
port had  been  made  the  special  order  of  the  day, 
for  this  hour,  all  further  action  on  the  resolution 
was  suspended. 

THE  JUDICIARY  SYSTEM. 

The  PRESIDENT  announced  the  arrival  of  the 
hour  when  the  Convention  had  fixed  to  take  up 
the  reports  from  the  judiciary  committee  as  the 
special  order. 

Mr.  O'CONOR  desired  to  offer  a  resolution.— 

The  PRESIDENT  said  the  special  order  would 
now  alone  be  acted  upon. 

Mr.  O'CONOR  said  his  resolution  had  reference 
to  that  order  of  business. 

Mr.  RUGGLES  moved    that    the   Convention 
o  into  comrnitee  on  thejudicial  reports. 

Mr.  BROWN  asked  unanimous  consent  to  lay 
on  the  table  an  amendment — that  it  might  be 
Drinted  and  referred  to  the  committee  of  the 
whole. 

Consent  was  given,  and  the  amendment  was 
lad  as  follows,  and  referred : — 

(  AS  soon  as  this  constitution  shall  tie  approved  and 

adopted  by  the  people,  it  shall  be  tho  duty  of  the  Gover. 
ior  to  appoint  couunissioneis  who  shall  severally  have 
ind  possess  the  same  power  and  authority  they  had  and 
)ossessed  by  the  chancellor  and  justices  of  the  supreme 
;ourt.  Any  one  of  the  said  commissioners  may  hold  a 
•ourt  for  the  hearing'  and  determination  of  suits  which 
hall  be  pending  in  the  court,  of  chancery  ;  and  any  tuo 
or  more  of  the  said  commissioners  may  hoid  ;i  court  for 
he  hearing  and  determination  of  suits  which  skail  bepcnd- 


555 


»nt?  m  the  supreme  court  ready  for  argument  and  hearing 
at  the  time  or  their  appointment,  at  such  times  and  places 
es  the  Governor  may,  by  his  proclamation,  appoint.  Such 
suits  to  be  brought  to  a  hearing  at  the  courts  to  be  held  by 
the  commissioners,  upon  such  notices  as  is  required  by 
rules  and  practice  of  the  courts  where  such  suits  maybe 
pending.  And  judgments  and  decrees  may  be  registered 
with  the  registers  and  clerks  of  such  courts  on  the  written 
order  or  opinion  ot  the  commissioner  or  commissioners 
hearing  such  suits,  with  the  like  effect  as  if  the  same  had 
been  heard  and  decided  at  one  of  the  regular  terms  of  the 
court  where  the  same  may  be  ending.  The  legislature 
shall  provide  by  law  for  the  compensation  of  the  said  com- 
missioners And  their  powers  and  functions  shall  cease 
«t  the  time  hereby  appointed  for  this  constitution  to  take 
effect. 

Mr.  O'CONOR  then  asked  unanimous  consent 
to  offer  the  resolution  he  had  spoken  of.  It  was 
merely  one  of  instruction  to  the  committee  of  the 
whole  for  them  to  report  a  judicial  system  com- 
bining in  one  system,  courts  both  of 'law  and  of 
equity. 

The  PRESIDENT  said  it  could  only  be  re- 
ceived by  unanimous  consent. 

Mr.  HART  objected. 

Mr.  O'CONOR  said  that,  as  advised  by  his 
friends,  he  appealed  from  the  decision  of  the  Chair. 

Mr.  PATTERSON  asked  that  the  special  or- 
der made  last  Friday  should  be  read. 

The  President  then  read  it.  It  made  the  vari- 
ous reports  of  the  committee  on  the  judiciary  the 
special  order  every  morning  from  this  day  at  10 
in  the  morning. 

Mr.  PATTERSON  insisted  that  they  were  com- 
plying with  the  order.  That  they  were  taking  up 
those  reports  as  the  order  directed ;  but  the  res- 
olution did  not  say  that  they  should  go  into 
committee  of  the  whole  on  them.  Having  there- 
fore taken  them  up,  they  would  of  course  instruct 
the  committee  of  the  whole.  He  did  not  think 
this  would  be  denied. 

Mr.  CROOKER  hoped  the  objection  would  be 
withdrawn,  as  it  would  thus  enable  the  Conven- 
tion to  decide  whether  they  would  have  a  Court 
of  Chancery  or  not. 

Mr.  WARD  said  that  there  could  be  no  ques- 
tion but  that  it  was  the  duty  of  the  Convention  to 
observe  the  order  it  had  made;  this  was  as  much 
Iheir  duty  as  it  was  to  render  obedience  to  a  res- 
olution which  required  that  all  debate  should 
atop  at  a  certain  hour;  and  under  a  resolution  of 
the  latter  character,  the  moment  the  hour  ar- 
rived at  which  it  was  prescribed,  that  debate 
should  cease — then  all  debate  must  cease  ;  and 
and  with  these  views  he  felt  satisfied  that  the 
decision  of  the  Chair  was  correct. 

Mr.  CROOKER  said  he  entirely  differed  from 
this  view. 

The  PRESIDENT  then  said  he  would  read  an 
extract  from  Jefferson's  Manual,  which  had  a 
bearing  on  this  question.  It  was  as  follows : 

"  The  only  cuse  where  a  member  has  a  right  to  insist  on 
any  thing,  is  where  he  calls  lor  the  execution  of  a  subsist- 
ing order  oi  the  House.  Here,  there  having  been  already 
a  resolution,  uny  person  has  a  right  to  insist  that  the: speak- 
er, or  any  other  whose  duty  it  is,  shall  carry  it  into  execu- 
tion, and  no  debate  or  delay  can  be  had  on  it." 

Mr.  CROOKER  said  that  so  far  as  Jefferson's 
Manual  was  concerned  this  was  all  very  well  in 
relation  to  a  special  order.  But  the  order  in 
question  did  not  say  whether  the  reports  should 
be  taken  up  in  Convention  or  in  committee  of  the 
whole. 


Mr.  BAKER  said  that  heretofore  all  the  reports 
had  been  committed  to  the  committee  of  the 
whole,  and  subsequently  they  had  passed  an  or- 
der stating  that  when  a  certain  hour  arrived,  those 
reports  should  become  the  special  order  of  the 
day.  It  was  very  clear  therefore  that  the  Con- 
vention must  go  into  the  committee  of  the  whole 
where  those  very  reports  were,  before  they  could 
get  at  them  to  act  upon  them. 

Mr.  CROOKER  still  contended  that  the  Con- 
vention had,  notwithstanding  all  this,  the  right 
to  instruct  the  committee. 

Mr.  CAMBRELENG  said  that  this  matter  wa« 
perfectly  clear.  And  the  gentleman  from  Wash- 
ington (Mr-  BAKER)  was  clearly  correct  in  his 
view  of  the  case.  The  reports  that  we  desired  to 
consider  were  not  in  Convention  at  all. 

The  PRESIDENT  repeated  ibe  decision  he  had 
just  previously  made. 

Mr.  O'CONOR  said  that  to  prevent  delay  he 
would  withdraw  his  appeal. 

The  Convention  then  went  into  the  committee 
of  the  whole,  on  the 

REPORTS  ON  THE  JUDICIARY  SYSTEM. 

Mr.  "C'AIVJBRETET^G  was  calleffToTnTCnair. 

The  Secretary  read  the  first  section,  as  follows: 

^  1.  The  Assembly  shall  have  the  power  of  impeach- 
ment, by  a  vote  of  a  majority  of  all  the  members  elected. 
The  court  fur  the  trialof  impeachments,  shall  be  composed 
of  the  President  of  the  Senate,  the  Senators,  and  the  judges 
of  the  court  of  appeals,  the  major  part  of  whom  may  hold 
the  court.  On  the  trial  of  an  impeachment  against  the  Go 
vernor,  the  Lieut.  Governor  shall  not  set  as  a  member  of 
the  court.  No  judicial  officer  shall  exercise  his  office;after 
he  shall  have  been  impeached,  until  his  acquittal.  Before 
the  trial  of  an  impeachment,  the  members  of  the  court 
shall  take  an  oath  or  affirmation,  truly  and  impartially  to 
try  the  impeachment,  according  to  evidence;  and  no  person 
shall  be  convicted  without  the  concurrence  of  two-thirds 
of  the  members  present.  Judgment  in  cases  of  impeach- 
ment shall  not  extend  further  than  to  removal  from  office; 
but  the  party  convicted  shall  be  liable  to  indictment,  and 
punishment  according  to  law. 

Mr.  RUGGLES  said  that  having  on  the  intro- 
duction of  this  report  on  the  1st  of  August  made 
some  general  remarks  respecting  the  plan  report- 
ed by  the  committee,  or  a  majority  of  that  com- 
mittee, it  did  now  appear  to  be  necessary  that  he 
should  do  more  than  to  make  such  very  brief  re- 
marks as  were  necessary  to  elucidate  this  section. 
It  was  mainly  drawn  from  the  section  in  the  pre- 
sent Constitution  ;  the  change  in  it  was  in  rela- 
tion merely  to  the  persons  who  were  to  compose 
the  court.  By  the  old  Constitution  the  persons 
named  to  constitute  the  court  were  the  chancellor, 
judges  of  the  supreme  court,  and  the  state  senate. 
Thus  making  it  in  fact  to  be  composed  of  the  same 
persons  as  the  present  Court  of  Errors.  The  com- 
mittee  in  the  present  report  had  thought  it  best 
that  the  court  of  impeachments  should  consist  of 
the  Lieut.  Governor,  the  state  senators  and  the 
judges  of  the  court  of  appeals. 

Mr.  DANA  moved  to  amend  this  section  thus : 

"  The  Assembly  shall  have  the  power  of  impeaching  all 
civil  ofiiccrs  of  this  State  for  mal-practices  and  corrupt 
practices  in  ofiice,  and  for  high  crimes  and  misdemean- 
ors." 

Mr.  DANA  explained  that  his  object  in  this 
amendment  was  to  designate  the  officers  who 
should  be  liable  to  impeachment.  He  had  done 
nothing  more  than  to  use  the  precise  language  of 
the  present  Constitution. 

Mr.  DANA'S  amendment  was  rejected. 


556 


Mr.  CONELY  offered  this  amendment: 

"  Resolved,  Thatthe  court  forthe  trial  of  impeachments 
consist  only  of  the  Senate." 

He  would  strike  out  the  words  "  the  Senators 
and  the  judges  of  the  court  of  appeals"  and  insert 
the  words  "the  Senate." 

Mr.  RUGGLES  said  that  he  was  opposed  to 
the  adoption  of  this  amendment ;  and  he  would 
ask  the  members  of  the  Convention,  if  any  of  them 
should  be  so  unfortunate  as  to  be  impeached  by 
the  court  of  impeachments,  whether  he  or  they 
would  like  to  have  the  case  tried  before  the  very 
court  by  whom  the  impeachment  was  made. 

Mr.  CONELY  said  that  his  object  was  to  avoid 
the  great  influence  of  that  fraternal  feeling  which 
it  has  invariably  been  seen  existed  in  all  bo- 
dies, disposing  the  members  thereof  to  lean  too 
much  towards  the  individual  who  was  im- 
peached, instead  of  rigidly  but  fairly  and  honora- 
bly insisting  on  enforcing  the  laws  and  obtaining 
the  ends  of  justice. 

Mr.  PERKINS  said  that  there  was  no  proprie- 
ty in  making  this  section  in  relation  to  impeach- 
ments as  stringent  as  they  had  made  it ;  and  he 
wished  the  members  to  look  at  the  llth  section, 
where  another  mode  was  provided  for  the  re- 
moval of  the  Judges. 

This  is  it: 

|g*5  11.  Justices  of  the  Supreme  Court  and  judges  of  the 
court  of  appeals,  may  be  removed  by  joint  resolution  of 
both  houses  of  the  Legislature,  if  two-thirds  of  all  the  mem- 
bers elected  to  the  Assembly  and  a  majority  of  all  the  mem- 
bers elected  to  the  Senate  concur  therein.  Surrogates  and 
all  judicial  officers,  except  those  mentioned  in  this  section, 
and  except  justices  of  the  peace,  may  be  removed  by  the 
Senate,  on  the  recommendation  of  the  Governor;  but  no 
removal  shall  be  made  unless  the  cause  thereof  be  eiiteied 
on  the  journals,  nor  unless  the  party  complained  of,  shall 
have  been  served  with  a  copy  of  the  complaint  against 
him,  and  shall  have  had  an  opportunity  of  being  heard  in 
his  defence.  On  the  question  of  removal,  the  ayes  and 
noes  shall  be  entered  on  the  journals. 

Mr.  PERKINS  said  that  he  greatly  preferred 
this  last  section,  which  thus  allowed  two-thirds 
of  the  Assembly,  of  all  elected,  together  with  a 
majority  of  all  those  elected  to  the  Senate, ,to  re- 
move from  office. 

Mr.  CONELY'S  amendment  was  thenf  put  and 
negatived. 

Mr.  STETSON  said  that  he  desired  to  extend 
the  disqualification  in  case  of  conviction  to  the 
holdingof  any  office  under  the  state  government 
of  an^vfrind  whatever.  In  short  he  wished  to  re- 
store/the article  in  this  particular  to  the  provi- 
sions of  the  present  constitution. 

Mr.  RUGGLES  said  there  had  been  doubts  about 
this  in  the  committee.  But  his  own  opinion  was 
that  this  amendment  should  be  adopted. 

Mr  BASCOM  said  he  certainly  hoped  that  the 
amendment  would  not  be  adopted.  For  he  very 
much  doubted  the  propriety  of  clothing  the  court 
of  impeachment  with  any  such  powers  as  ihose 
contemplated  by  this  amendment.  He  preferred, 
by  far,  that  the  section  should  remain  as  it  is.  For 
it  might  very  well  happen  that  a  young  man 
might  be  impeached;  and  if  so,  would  they  de- 
bar him  on  that  account  from  ever  after  holding 
any  office  whatever?  Should  not  a  long  life  of  peni- 
tence and  good  conduct,  be  taken  into  the  account? 
He  certainly  was  willing  to  trust  the  people  with 
the  power  of  forgiveness,  in  the  matter,  and  allow 
them  to  confer  an  office  on  such  an  one  if  they 
thought  proper  to  do  so. 


Mr.  NICHOLAS  said  he  hoped  the  amendment 
of  the  gentleman  from  Clinton  (Mr.  STETSON) 
would  be  adopted.  The  mode  of  removal  from 
office  by  the  legislature  as  recommended  l»y  the 
committee  in  section  No.  11  of  this  report  is 
wisely  arranged,  and  provides  for  all  cases  of  phy- 
sical and  mental  disability,  not  involving  moral 
delinquency.  A  conviction  under  an  impeach- 
ment will  only  occur  in  cases  of  corrupt  official 
misconduct,  and  in  all  such  cases  the  judgment 
shall  extend  as  it  now  does,  not  only  to  removal 
from  office,  but  also  to  future  disqualification  to 
hold  any  office  in  the  State. 

Mr.  WORDEN  said  that  this  amendment  pro- 
posed was  exactly  the  language  of  the  section  in 
the  present  constitution  ;  and  as  he  believed  in 
almost  every  constitution  of  the  Union. 

Mr.  STETSON'S  amendment  was  adopted, 

Mv.  WORDEN  said  that  the  section  as  it  stood 
by  the  reading  of  the  4th  line,  would  authorise 
the  holding  of  this  court  without  the  credit  of  any 
one  of  the  court  of  appeals.  It  says,  "  the  court 
for  the  trial  of  impeachments  shall  be  composed 
of  the  President  of  the  Senate,  the  Senators,  and 
of  the  court  of  appeals  ;  the  major  part  of  whom 
may  hold  the  court."  Now,  he  wished  to  amend 
the  section,  so  as  to  require  that  a  major  part  of 
both  bodies  shall  be  holding  the  court  in  cases  of 
impeachment. 

Mr.  RUGGLES  said  that  possibly  the  section 
might  be  considered  liable  to  that  construction — 
to  the  objection  suggested  by  the  gentleman  from 
Ontario  (Mr.  WORDEN.)  He  was  willing  to  ac- 
cept the  amendment. 

Mr.  WORDEN'S  amendment  was  adopted. 

Mr.TAGGART  moved  to  strike  out  the  words, 
"  judge  of  the  court  of  appeals,"  and  insert  "jus- 
tices of  the  Supreme  Courts." 

This  was  negatived. 

Mr.  TAGGART  further  moved  to  amend  the 
42th  line  by  striking  out  the  words,  "  two-thirds 
of  the  members  present,"  and  to  insert "  a  majo- 
jority  of  all  the  members  present."  He  said  this 
was  a  question  of  very  great  importance ;  he  cer- 
tainly did  not  know  any  reason  why  a  different 
rule  should  prevail  in  courts  of  impeachment 
than  in  other  courts,  and  he  was  not  aware  of  any 
other  court  in  which  a  two-third  vote  was  re- 
quired. 

,v>  Mr.  HOFFMAN  thought  that  the  gentleman 
was  certainly  mistaken  in  his  rule.  In  a  case  of 
impeachment,  the  Senators  acted  in  the  capacity 
of  petit  jurors,  and  in  every  other  case  we  re- 
quired entire  unanimity  to  commit.  He  was  in 
attendance  at  the  trial  of  Judge  Peck,  and  his  im- 
pression and  firm  convictions  at  that  time  was 
that  a  vote  of  two-thirds  was  entirely  proper. 

Mr.  STEPHENS  said  that  gentlemen  should 
remember  that  in  addition  to  all  other  matters, 
there  was  the  consideration  of  the  security  of  the 
penalty,  in  case  of  conviction.  This,  therefore, 
should  not  be  dependent  on  a  single  vote,  which 
it  would  be  if  a  majority  had  to  decide. 

Mr.  TAGGART'S  amendment  was  rejected. 

Mr.  O'CONOR  then  moved  to  amend  the  section 
so  that  it  would  read  thus  : 

"  The  Senate,  with  the  Judges  of  Appeals,  shall  possess 
exclusive  power  to  try  impeachments." 

Mr.  O'CONOR  said  the  amendment  might  seem 
to  be  slight,  as  to  be  merely  verbal;  it  was, how- 


557 


ever,  important.  He  wt-nt  on  to  .show  tlmt  a  si- 
milar provision  was  found  in  the  constitution  of 
the  United  States,  and  he  defended  it  on  the 
ground  of  tlic  necessity  for  a  separate  and  inde- 
pendent judicial  department,  which  had  received 
the  sanction  of  many  constitutional  sages  in  other 
States.  This  State,  unlike  many  others,  never 
had  a  constitutional  provision  creating  a  distinct 
judicial  department,  and  therefore,  although  we 
have  a  Supreme  Court,  the  legislature  might 
erect  another  Supreme  Court,  and  though  they 
could  not  abolish  the  existing  Supreme  Court, 
tlu'y  miV'it  }>;>->  laws  which  would  divest  it  of  all 
its  business.  We  have  also  a  court  of  Oyer  and 
Terminer,  and  provision  is  made  showing  who 
are  the  judges  of  it;  yet  there  wus  nothing  to  pre- 
vent the  appointment  of  special  commissioners  to 
try  criminals,  taking  the  business  from  the  stand- 
ing tribunals.  Now  all  this  should  have  been 
avoided  by  the  erection  of  an  independent  depart- 
ment of  the  government — a  political  power — and 
a  section  should  be  introduced  into  the  constitu- 
tion to  effect  that  object.  He  spoke  of  courts 
martial  and  courts  for  the  trial  of  impeachments, 
as  partaking  of  the  same  character,  but  not  as  be- 
ing part  of  a  judicial  department,  or  having  any- 
thing to  do  with  the  regular  administration  of  jus- 
tice. They  were  only  means  used  for  the  puri- 
fication of  the  civil  and  military  department, 

Mr.  RUGGLES  said  that  he  really  could  not 
see  how  the  amendment  of  the  gentleman  from 
New-York  (Mr.  O'CONOR)  at  all  varied  the  ef- 
fect of  the  original  provision  of  the  section.  It 
merely  avoids  distinguishing  as  a  Court  this 
body  who  are  to  try  impeachments. 

Mr.  O'CONOR  in  reply,  said  that  his  desire 
was  to  adopt  the  language  of  the  Constitution  of 
the  U.  States;  and  that  instrument  makes  this 
board  a  tribunal,  but  not  a  Court;  thus  it  is  dis- 
connected from  the  judicial  department. 

Mr.  HOFFMAN  hardly  knew  how  to  feel  any 
considerable  interest  in  a  question  so  purely  tech- 
nical as  this,  and  yet  he  apprehended  in  its  ul- 
timate consequences  it  may  deserve  n  serious  con- 
sideration. This  mode  of  proceeding  by  impeach- 
ments was  instituted  in  the  controversies  be- 
tween the  barons  and  the  Kings,  in  order  that  the 
great  officials  might  be  brought  to  justice.  It 
deserved  in  his  opinion  the  very  front  place  in 
any  judicial  system.  Mr.  H.  urged  the  pro- 
priety of  infusing  a  large  share  of  the  popular 
feeling  in  this  court,  and  expressed  the  hope  that 
the  court  would  be  composed  of  the  Senators,  and 
a  single  judge  to  preside  when  the  governor  was 
impeached. 

Mr.  KIRKLAND  offered  as  a  substitute,  the 
following  section  from  his  minority  report : 

^ji.  There  shall  be  a  court  for  the  trial  oi'impeachments 
It  shall  be  composed  ot  the  President  of  the  Senate,  and 
the  senators,  or  a  major  part  of  them.  The  members  of 
the  court  shall,  belore  trying  an  impeachment,  take  an 
oath  or  affirmation,  impartially  to  try  and  determine  the 
charge  in  question  No  j  eis  11  shall  be  convicted  without 
the  concurrence  of  two  thirds  of  the  members  present. — 
Judgment  in  cases  ot  impeachment  shall  extend  only  to 
removal  from  office,  ana  disqualification  to  hold  any  office 
of  trust,  honor  or  profit,  under  this  state  ;  but  the  person 
convicted,  shall  be  liable  to  indiotin-.-nt  and  punishment, 
according  to  law.  Any  ju>lgf  impeached  shall  be  suspen- 
ded from  cxeicising  his  office  till  his  acquittal.  Tin;  as- 
sembly  shall  have  the  power  ot  impeaching  all  civil  olti. 
cersol  this  stale  lor  corrupt  practices  in  office,  and  high 
crimes  and  misdemeanor  ;  but  a  nuijority  ot  all  the  mem- 
bers elected,  shall  concur  in  an  impeachment 


This  Mr.  K.  said  would  meet  the  objections  so 
,vell  stated  by  the  gentlemen  from  Herkimer.  It 
leaves  out  of  the  tribunal  the  judges  and  confines 
the  court  entirely  to  the  Senate,  as^s  done  in  the 
United  States  Constitution.  It  also  provides  for 
what  officers  shall  be  impeached. 

Mr.  JORDAN  could  not  agree  that,  judges 
should  not  form  a  part  of  the  court  of  impeach- 
ments. When  a  judicial  officer  was  impeached 
there  should  be  at  least  'a  sufficient  infusion  of 
the  judicial  power,  to  preserve  legal  questions 
and  the  rules  of  evidence  inviolate.  The  Senate 
was  composed  of  men,  to  be  sure,  of  intelligence 
and  ability,  but  they  were  selected  with  a  view 
rather  to  their  legislative  than  to  their  judicial 
capacity.  He,  therefore,  preferred  the  original 
section. 

Mr.  LOOMIS  desired  to  amend  the  amendment 
with  reference  to  the  extent  of  punishment.  It 
was  to  strike  out  the  words  "  and  disqualification 
to  hold  any  office  of  trust,  honor  or  profit  under 
the  State."  It  seemed  to  him  that  this  was  too 
strong  a  punishment  to  impose  on  any  individu- 
als by  a  Senate,  without  a  jury,  and  without  a 
trial  under  the  forms  of  the  common  law,  ex- 
empted as  it  was,  too,  from  any  intervention  of 
the  pardoning  power.  He  was  aware  that  the 
provision  was  contained  in  the  present  Constitu- 
tion, and  that  no  complaint  had  arisen  under  it, 
but  he  apprehended  that  in  excited  party  times 
this  power  might  be  used  in  an  oppressive  man- 
ner. He  preferred  to  leave  these  cases  to  the  or 
dinavy  judicial  tribunals. 

Mr.  RUGGLUS  thought  that  the  Convention  had 
already  decided  upon  this  question.  He  should 
also  object  to  the  section,  because  it  proposed  to 
make  the  Senate  the  sole  tribunal  to  try  impeach- 
ments. The  members  of  that  body,  like  those  of 
all  legislative  bodies,  were  more  or  less  imbued 
with  partisan  feelings,  and  it  might  be  that  an  im- 
peachment in  an  excited  state  of  political  feeling 
might  grow  out  ot  those  very  feelings.  Mr.  R. 
urged  the  propriety  of  infixing  into  the  court  a 
share  of  the  judicial  force,  to  restrain  that  (eel- 
ing.  For  these  reasons  he  preferred  the  original 

The  question  then  being  taken,  Mr.  LOOMI5' 
amendment  was  rejected,  as  was  tne  substitute  ot 
Mr.  KIRKLAND,  also. 

Mr.  FLANDERS  offered  the  following  substi- 
tute lor  the  first  section:— 

&  1  The  legislature  shall  define  offences  in  office,  and 
provide  for  the  trial  and  punishment  of  persons  guilty  ol 
such  offences  in  the  ordinary  courts  o!  the  state.  I  he  jn- 
dictmem  of  any  officer  lor  any  act  declared  by  law  to  be 
an  official  oftence,  shall  operate  as  a  suspension  ol  ,11 
powers  of  such  officer,  until  he  shall  be  convicted  on  sue! 
indictment;  such  conviction  shall  operate  as  a  removal 
from  office. 

Mr.  FLANDERS  said  his  object  was  to  intro- 
duce something  into  our  Constitution  that  would 
be  of  some  effect.  He  proposed  to  place  persons 
liable  to  impeachment  on  a  par  wi'h  all  other 
offenders,  giving  them  the  same  riuht  of  defence 
anil  prescribing  the  result  of  a  conviction. 

Mr.  VVORDEN  said  that  such  a  provision  al- 
ready existed  in  the  law  and  there  never  had  been 
any  difficulty  in  applying  it.  He  urged  that  it  would 
be  nnsafp  to  attempt  to  df-fine  in  a  law  what  of- 
fences  should  he  punishable.  Such  a  thing  was 
beyond  the  power  of  human  imagination. 


558 


The  question  being  taken,  Mr.  FLANDERS' 
amendment  was  rejected. 

Mr.  BASCOM  moved  to  strike  out  the  words 
*'  but  the  party  convicted  shall  be  1-iable  1o  in- 
dictment and  punishment  according  to  law,"  and 
insert,  "  arid  shall  not  be  a  bar  to  an  indictment." 
Lent,  22  to  42. 

Mr.  BROWN  moved  to  strike  out  the  word 
''convicted,"  in  the  last  line,  and  insert  the  word 


"impeached,"   and   the  word 
after  the  word  "shall." 


•notwithstanding" 


This  was  adopted, alter  a  brief  debate  by  Messrs. 
A.  W.  rOUNG,WORDEN,  and  TAGGART. 

Mr.  BASCOiM  moved  as  a  substitute  the  follow, 
ing  sections,  from  Ins  minority  report  : 

$  1.  A  court  for  the  trial  of  impeachments  shall  consist 
of  the  President  of  the  Senate,  the  Senators  or  a  major 
part  of  them,  and  the  Judges  of  the  Supreme  Couit,  or  a 
major  part  of  them,  whose  term  of  office  shall  be  within 
two  years  and  not  within  one  year  of  its  expiration;  and 
the  Senators  and  Judges  taking  their  seats  in  the  said  court, 
for  the  trial  of  any  impeachment,  shall  continue  members 
thereof  until  the  same  shall  be  determined,  notwithstand- 
ing the  expiration  of  their  term.  But  no  officer  against 
whom  an  impeachment  may  have  been  presented,  shall  at 
any  time  be  a  member  of  the  said  court.  The  impeach- 
ment ot  an  officer  shaJl  suspend  him  from  the  dischaige  of 
his  official  functions. 

§  -2.  The  Assembly  shall  have  power  of  impeaching  all 
civil  officers  of  this  state,  for  mal  and  corrupt  conduct  in 
office,  and  high  crimes  and  misdemeanors,  by  a  majority  of 
all  the  members  elected  concurring.  Judgment,  in  cases 
of  impeachment,  shall  not  extend  further  than  the  remo- 
val from  office,  and  shall  not  be  a  bar  to  an  indictment. 

This  amendment  was  rejected. 
Mr.  O'CONOR  offered  the  following,  on  the  2d 
section : 

<J  -2.  The  residue  of  the  judicial  power  of  this  state  shall 
be  vested  in  the  Supreme  Court,  and  the  inferior  courts 
mentioned  in  this  article;  subject  to  *>uch  appellate  juris- 
diction as  may  be  vested  in  the  Court  of  Appeals. 

Mr.  SWACKHAMER  mov*d  to  amend  by  strik- 
ing  out  all  after  the  word  "  article."  Lost. 

Mr.  RUGGLES  said  that  on  account  of  some 
differences  of  opinion  among  the  merimbers  of  the 
committee,  as  to  the  form  and  propriety  of  this 
section,  it  was  rejected.  And  he  thought  if  it 
was  adopted  at  all,  it  should  be  alter  the  report 
had  been  gone  through  with,  and  it  had  been  de- 
termined what  courts  should  be  cons'ituted,  and 
what  should  be  left  to  legislation  in  the  matter. 

Mr.  SWACKHAMER  supported  the  section.— 
There  were  now  too  many  courts,  the  people  com- 
plained, and  he  would  settle  the  question  here. 

Mr.  BASCOM  thought  too,  that  the  question 
should  be  decided  here.  He  looked  upon  it  as 
giving  too  much  to  the  Legislature  to  require  them 
to  decide  what  courts  were  necessary  for  the  pre- 
servation of  justice. 

Mr.  O'CONOR  contended  that  this  was  the  only 
way  in  which  ajudicial  department  could  be  ere. 
ated,  without  leaving  the  whole  matter  to  thi 
Legislature. 

Air.  KIRKLAND  although  he  concurred  in  the 
propriety  of  the  section,  thought  this  to  be  not 
the  proper  rlace  tor  it  to  be  inserted. 

Mr.  JORDAN  regarded  this  matter  as  fully 
provided  tor  in  the  section,  in  a  manner  for  pre- 
ferable to  the  amendment  of  Mr.  O'CONOR,  anc 
should  vote  against  it. 

Mr.  SWACKHAMEfl  moved  a  reconsideration 
to  lie  upon  the  table. 

The  2d  section  was  then  read  as  follows: 


§  -2.  There  shall  be  a  court  6\  appeals,  composed  of  eight 
judges,  of  whom  four  shall  be  elected  by  the  electors  of 
the  State  ibr  eight  years,  and  four  si^kcted  from  the  class 
of  Justices  of  the  Supreme  Court  having  the  shortest  time 
to  serve.  Provisions  shall  be  made,  by  law,  for  designat- 
ing one  of  the  number  elected,  as  chief  judge,  and  lor  se- 
lecting such  Justices  of  the  Supreme  Court,  from  time  to 
time,  and  for  so  classifying  those  elected,  that  one  shall 
be  elected  every  second  year. 

Mr.  PATTERSON  said  there  was  one  provision 
in  this  section  which  was  a  matter  of  some  dis- 
cussion in  the  committee,  although  it  was  not  now 
as  originally  drawn.  That  proposed  the  election 
of  all  the  eight  Judges  of  appeals.  He  prefeired 
this  and  moved  to  amend  so  that  all  the  Judges 
hould  be  selected  from  the  justices  of  the 
Supreme  Court.  It  was  supposed  necessary  to 
hrow  some  of  the  popular  feeling  into  this  court. 
When  we  came  to  I  he  12th  section,  Mr.  P.  ap. 
prehended  we  should  adopt  the  provision  for  elec- 
ion  of  these  judges.  That  would  be  a  sufficient 
nfusion  of  the  popular  element.  He  bad  anoth- 
er objection.  If  it  should  be  found  necessary  to 
lave  judges  to  hold  special  terms,  they  could  be 
aken  from  this  court  of  appeals.  But  if  this  was 
adopted,  these  four  judges  elected  only  as  judges 
of  the  court  of  appeals,  could  not  discharge  that 
duty.  He  had  another  objection.  This  placed 
;he  judges  at  too  great  a  distance  from  the  elect- 
ors. It  hai  been  suggested  that  these  four  judges 
would  be  laymen,  as  his  friend  from  Monroe  call- 
ed them.  Mr  P.  apprehended  no  laymen  would 
ever  be  elected  to  this  high  judicial  tribunal,  but 
all  be  taken  from  the  most  eminent  members  of 
the  legal  profession.  But  he  would  not  extend 
his  remarks,  but  submit  his  amendment  to  the 
committee. 

Mr.  KIRKLAND  rose  to  propose  a  serious  ques- 
tion to  the  committee  in  regard  to  the  most  useful 
course  to  be  pursued  in  acting  upon  this  question 
of  establishing  a  judiciary  system.  He  believed 
no  discussion  could  be  had  upon  these  reports, 
taken  up  separately,  which  would  result  in  any- 
thing satisfactory.  The  several  reports  were  but 
parts  of  one  whole,  links  in  one  chain,  and  they 
should  be  brought  up  so  that  members  of  the  com- 
mittee could  give  their  views  in  regard  to  the  en- 
tire subject.  The  discussions  here  were  not  for 
the  benefit  of  the  members  of  the  Convention 
alone.  The  Judiciary  Committee  were  unable  to 
present  any  reasons  in  support  of  the  great  changes 
which  they  proposed  to  be  made,  and  he  had 
heard  objections  made  to  some  of  them,  as  the 
most  mischievous  which  could  be  made.  It  was 
desirable,  therefore,  that  this  subject  might  aiise 
in  such  a  way  as  to  allow  gentlemen  to  go  over 
the  entire  ground,  and  give  such  discussions  upon 
it  as  were  looked  for  by  the  members  of  the  bar, 
and  the  people  throughout  the  State.  So,  he  be- 
lieved  tnat  taking  up  this  report  by  sections,  as 
was  very  well  done  in  other  articles,  was  not  the 
proper  mode,  or  one  which  would  be  the  most  ad- 

1  The  CHAIR  said  that  the  whole  subject  of  the 
Judiciary  system  was  open  in  the  discussion  of 
the  section  now  under  consideration. 

Mr.    KIRKLAND  was   then   satisfied  that  his 


objections  might  be  waived. 

Mr  RUGGLES  desired  to  bring  two  points, 
which  would  require  the  consideration  of  the  com- 
mittee,- up  in  distinct  order.  One  point  was  whe- 
ther the  powers  of  tne  courts  of  law  and  equity 


559 


should  be  kept  separate  or  united  in  one.  This 
was  involved  in  the  3d  section.  The  other  was 
as  to  the  mode  in  which  these  judges  of  the  Su- 
preme Court  should  be  selected.  He  suggested 
to  expedite  business  and  to  confine  speakers  more 
to  the  point,  whether  it  would  not  be  best  to  pass 
over  the  'Jd  section  and  go  to  the  3d  and  from  that 
to  the  12th,  which  provided  for  the  appointment 
of  judges.  He  moved  to  pass  over  the  2d  and  take 
up  the  3d  section,  which  related  to  the  organiza- 
tion of  the  courts  of  law  and  equity. 

Mr.  BROWN  doubted  the  propriety  of  this,  be- 
cause no  vote  we  should  take  in  committee  of  the 
whole  would  be  conclusive.  The  ayes  and  noes 
were  not  taken  and  it  was  with  the  utmost  diffi- 
culty that  we  could  procure  a  quorum  to  vote. 
He  suggested  that  in  the  Convention  we  should 
come  to  a  determinate  and  positive  conclusion  on 
the  two  points  referred  to  by  Mr.  RUGGLES.  He 
proposed  that  the  committee  should  rise  and  re- 
port, and  then  he  would  submit  resolutions  of  in- 
struction on  the  various  points  involved.  He  read 
a  series  of  resolutions  which  he  should  then  offer 

Hus  proposition  was  discussed  by  Mes-rs.  FOR- 
SYTH,  WARD,  A.  W.  YOUNG,  WORDEN 
S  TK  I'SON,  STRONG,  MARVIN,  BROWN,  TIL- 
DEN  ard  others. 

Mi.  PERKINS  moved  that  the  committee  rise 
and  report  progress. 

Mr.  BAKER  moved  to  lay  that  question  on  the 
table. 

Mr.  FORSYTH  moved  a  recess,  which  was 
agreed  to. 

AFTERNOON  SESSION. 

As  soon  as  the  Convention  organized,  the  ques 
tion  arose  on  granting  leave  to  the  committee  o 
the  whole  having  charge  of  the  Judiciary  repor 
to  sit  agaiu.  Leave  was  granted. 

JUDICIARY  SYSTEM. 

Mr.  C  AMBRELENG  resumed  the  Chair.    Thi 
committee  then  took  up  the  Judiciary  reports. 
The  second  section  was  passed  over. 
Ttie  third  section  was  then  read  as  follows: — 
^  3.  There  shall  be  a  Supreme  Court  having  the  sam 
jiiriiilicciun  in  law  and   equity,  which  the  Supreme  Cour 
and  Court  of  Chancery  now  hav«,  subjtct  to  legulatioi 
bylaw. 

Mr.  TAGGART  moved  to  strike  out  the  sec 
tion. 

Mr.  RUGGLES  hoped  we  should  have  som 
reason  for  this  before  the  question  was  taken. 

Mr.  TAGGART  said  his  design  was  to  draw 
out  some  reasons  for  having  the  section  there. — 
The  article  under  consideration  provided  for 
court  of  appeals,  and  then  for  some  other  court  o 
courts.  The  committee  had  called  a  multitud 
of  courts  the  supreme  court.  They  had  created 
court  with  thirty-two  justices,  divided  into  eigh 
sections,  and  located  them  in  different  parts  of  th 
state,  and  called  it  the  supreme  court.  Ther 
no  unity  in  it.  He  was  utterly  opposed  t 
such  a  system.  If  we  were  to  have  a  suprem 
court  let  it  be  a  court  entitled  to  that  name.  J 
we  must  have  eight  district  courts,  let  them  b 
called  district  courts.  A  supreme  court,  intenc 
ed  as  a  unit,  and  yet  divided  into  eight  parts 
would  be  as  diiricult  to  be  understood  as  som 
systems  of  theology.  Where  and  how  are  we  t 
proceed  in  it  ?  How  and  where  are  we  to  brin 


ur  causes  to  hearing  or  argumont?  He  was  in 
avor  of  district  courts,  located  in  different  parts 
f  the  state,  and  vested  with  law  and  equity  ju- 
'sdiction,  transacting  business  as  was  clone  by  the 
irmer  supreme  court  before  the  adoption  oi'  the 
onstitution  of  1821 .  That  court  held  its  term  in 
ank,  and  also  held  circuit  courts  and  court  of 
yer  and  terminer  throughout  the  whole  state. — 
"hat  court,  with  five  judges,  disposed  of  all  the 
usiness  of  the  state  without  delay  or  inconveni- 
nce.  Such  a  court  would  probably  be  inadequate 
low  to  perform  all  the  business  of  this  great  state, 
o  great  has  been  the  increase  of  population  and 
>usiness  since  that  time.  But  we  might  establish 
listrict  courts,  with  the  right  of  appeal  to  the 
:ourt  of  last  resort,  and  save  all  the  benefits  of 
hat  system. 

Mr.  LOOMIS  said  there  would  be  no  more  dif- 
iculty  in  understanding  the  kind  of  Court,  or  the 
>ractice  of  the  Court,  proposed  to  be  established 
>y  this  article — a  court  holding  courts  in  banque, 
n  eight  different  places,  by  three  judges,  than  in 
understanding  the  present  system  of  three  judges 

and   one  of  them  holding  a  court  in  banque. 

This  system — this  article  contemplates  a  unity 
in  that  court — one  court  for  the  whole  State; 
either  of  the  three  judges  may  hold  a  court  in 
banque,  and  any  ot  them  trying  issues  of  fact. — 
One  court  doing  business  in  banque  is  not  sum"- . 
cient  lor  the  wants  of  the  community;  for  a  great 
city  like  New- York  for  instance.  But  the  system 
proposed  by  this  article  is  the  same  as  if  they 
were  constituted  as  they  now  are,  and  yet  that 
two  or  more  courts  in  banque  might  be  held  at  the 
same  time  and  in  different  parts  of  the  State.  It 
preserves  the  unity  of  this  court  inasmuch  as  it 
has  the  same  judges,  each  being  authorized  to 
hold  a  court  of  appeals  ;  and  yet  it  contemplates 
district  courts,  distinctly  from  this,  and  simply 
by  themselves,  as  if  they  were  eight  separate 
and  distinct  courts  of  jurisdiction.  This  will  re- 
medy the  evil  of  having  the  business  of  the  profes- 
sion done  by  counsel  who  reside  here  in  this 
part  of  the  state.  They  often  go  into  these  causes 
without  a  knowledge  of  the  real  argument  of  the 
case,  and  therefore  this  plan  will  be  greatly  for 
the  benefit  of  suitors.  And  so  far  as  locality  was 
concerned,  this  adapted  itself  to  the  convenience 
of  the  public  as  much  as  if  the  three  judges  hold- 
ing a  circuit  were  circuit  judges  confined  to  one 
circuit.  These  judges  will  interchange  and  tra- 
verse the  whole  state. 

Mr.  CROOKKR  here  asked  him  the  plan  by 
which  he  proposed  to  bring  causes  to  trial  on  thesis 
circuits? 

Mr.  LOOMIS:  They  shall  take  their  place  in 
these  courts  in  the  order  that  shall  be  prescribed 
by  law,  and  shall  continually  interchange  iheir 
circuits. 

Mr.  HUN  F  said  that  he  had  an  amendment  to 
otier,  not  quite  so  sweeping  as  that  of  the  gi'ntle. 
man  troin  G.jnesee  lie  would  not  give  this  court 
nil  the  powers  ih.it  ;>re  now  exercised  by  the 
Chancellor.  He  moved  to  amend  so  that  the  sec- 
lion  should  read  thus  : 

«'  There  shall  be  a  Supreme  Court,  having  jurisdiction 
in  law  and  equity." 

He  would  strike  out  the  words  "the  same,"  in 
the  first  line,  and  all  after  the  word  "  equity,"  in 
the  second  line. 


560 


Mr.  JORDAN  said  that  by  this  motion  he  sup. 
posed  the  gentleman  meant  to  take  from  the  Le- 
gislature the  power  to  regulate  the  practice  of  the 
Supreme  court.  Thisameiidment  would  certainly 
stnke  out  the  clause  giving  the  Legislature  power 
to  regulate  that  jurisdiction,  and  would  conse- 
quently throw  that  duty  upon  us.  Now,  for  his 
own  part,  he  believed  that  it  would  be  an  endless 
and  a  thankless  talk  for  this  Convention  to  attempt 
to  perform  this  duty  of  deciding  where  the  courts 
should,  and  where  they  should  not,  have  jurisdic- 
tion. It  would  be  the  work  of  a  considerably 
protracted  judicial  act ;  such  a  one  as  he  hoped  to 
see  adopted  in  the  next  session  of  the  Legislature. 
He  objected  to  leaving  this  task  to  the  Convention. 
He  hoped,  for  the  puipose.of  preserving  the  »vm 
metry  of  the  report,  that  this  section  would  be  al. 
lowed  to  srand,  unless  it  was  very  objectionable 
to  give  to  the  Legislature  this  power  of  defining 
the  practice  of  the  courts.  The  judiciaiy  com- 
mittee intended  to  have  one  great  fountain  of  law 
and  equity,  subject  to  curtailment  ef  jurisdiction 
and  power  by  the  Legislature.  This  was  one 
gieat  and  desirable  object  to  be  attained.  And 
this  was  a  highly  important  matter,  and  one  which 
we  could  not  go  into  without  great  detail.  He 
hoped,  therefore,  as  he  before  observed,  that  un- 
less there  were  some  proper  objections  to  giving 
Ihis  power  to  the  Legislature,  that  the  section 
would  be  allowed  to  stand  as  it  was. 

Mr.  HUNT  said  that  the  extent  or  definition  of 
the  jurisdiction  in  law  and  equity,  as  it  now  ex- 
ists, was  very  vague  ;  and  he  doubted  whether 
any  three,  or  even  two  men  could  be  found  in  the 
State  who  could  tell,  or  agree  as  to  what  power 
the  Court  of  Chancery^now  really  had. 

Mr.  RICHMOND  said  that  the  gentleman  from 
New  York  (Mr.  HUNT)  was  perfectly  right  in 
this  matter.  He  was  decidedly  opposed  to  the 
court  of  chancery.  And  indeed  it  was  a  general 
remark  now  that  the  chancellor  had  more  power 
than  the  Autocrat  of  Russia  had.  Now  he  hoped 
we  were  not  going  to  confirm  any  of  these  out- 
rageous powers.  He  did  not  want  the  legislature 
to  have  the  privilege  of  conferring  on  this  court 
any  of  these  extensive  and  injurious  powers.  If 
the  legislature  had  always  had  the  privilege  to 
regulate  this  tremendous  power  as  some  of  the 
gentlemen  here  on  this  floor  said  they  had,  and  if 
the  legislature,  having  thist  power,  had  permitted 
this  monstrous  and  overgrown  court  to  make  these 
and  most  infamous  encroachments  on  the  rights 
of  individuals  which  that  court  had  made,  the 
o-reatest  possible  censure  ought  to  fall  on  the  le- 
gislature. He  would  give  to  no  body  the  power 
to  erect  such  courts  as  could  usurp  such  powers, 
and  encroach  on  the  rights  of  the  people  so  infa- 
mously as  this  court  had  done.  And  he  therefore 
agreed  fully  with  the  gentleman  from  New  York 
that  when  we  say  that  this  supreme  court  shall 
have  jurisdiction  in  law  and  equity  we  have  said 
quite  enough. 

""Mr.  RUGGLES  said  that  as  he  understood  the 
object  of  the  amendment,  it  was  to  make  that 
plainer  which  was  now  said  to  be  obscure.  And 
he  only  now  rose  to  ask  the  gentleman  from  Ge- 
nesee,  (Mr.  RICHMOND)  if  he  would  instruct  him 
how  the  obscurity  of  the  section  might  be  obvia- 
ted ;  and  if  he  did  so,  he  would  vote  tor  an  amend- 
ment to  that  eil'ect.  He  wished  to  ask  that  gen- 


tleman what  would  be  the  extent  of  that  jurisdic- 
tion of  the  Supreme  Court  if  these  words  were 
stricken  out.  But  otherwise,  he  thought  the  sec- 
tion had  much  better  remain  as  it  stood. 

Mr.  CHATFIELD  had  thought  that  the  object 
of  the  mover  was  to  prevent  the  Legislature  from 
organising  any  other  district  court  of  equity.  If 
this  was  so,  the  amendment  would  defeat  its  own 
object;  for  if  this  was  stricken  out,  the  legisla- 
ture would  be  left  entirely  unrestrained ;  and 
they  would  then  have  the  power  to  organize  as 
many  courts  of  equity  as  they  thought  proper. — 
He  could  not,  and  would  not  assent  to  allowing 
them  this  power,  and  therefere  he  should  vote  to 
retain  the  section.  He  (Mr.  C.,)  desired  to  get 
rid  of  this  court  of  equity,  and  to  give  to  the  Su- 
preme Court,  law  and  equity  powers. 

Mr.  O'CONOR  regretted  that  the  gentleman 
from  Otsego  (Mr.  CHATFIELD)  was  not  in  his 
seat  this  morning,  when  he  had  the  honor  to  pro- 
pose a  new  second  section,  which  would  have 
obviated  the  present  difficulty — and  the  honor  to 
fail  in  it.  It  was  said  on  all  hands  to  be  a  very 
good  proposition,  but  it  was  said  not  to  be  the 
right  time  for  introducing  it,  and  so  it  was  post- 
poned by  a  vote  of  rejection.  Mr.  O'C.  thought 
it  was  now  apparent  that  that  proposition  was 
made  precisely  in  the  right  time.  He  (Mr. O'C.) 
wished  to  accomplish  the  very  same  thing  which 
the  gentleman  from  Otsego  did.  He  believed 
that  the  majority  of  this  Convention  desired  it. 
But  he  was  quite  sure  they  would  not  accomplish 
it  if  they  adopted  this  section,  even  if  it  were 
amended,  as  proposed  by  his  colleague  (Mr. 
HUNT.)  He  (Mr.  O'C.)  wished  to  strike  out  a 
little  more.  He  would  strike  out  all  of  the  sec- 
tion except  the  provision  that  there  shall  be  a  su- 
preme court.  Even  that  was  not  very  necessary. 
There  were  some  here — the  gentleman  from  Otse- 
go, himself  (Mr.  O'C.)  and  some  others — ready 
strenuously  to  advocate  a  system  which  would 
bring  the  administration  of  civil  justice,  in  all 
its  departments,  into  one  uniform  method  of  pro-' 
ceedure.  And  he  was  anxious  to  have  an  oppor- 
tunity this  morning  to  present  a  resolution  in- 
structing this  committee  of  the  whole  to  report  a 
judicial  system  by  which  equitable  relief  might  be 
administered  in  the  same  courts  in  which  legal  re- 
lief was  dispensed,  without  a  separate  court  of 
chancery.  But  time  did  not  admit  and  we  were  pre- 
cipitated upon  the  consideration  of  this  third  sec- 
tion. He  was  against  the  section  because  he 
conceived  that  its  language  would  perpetuate  the 
distinct  forms  of  pleading,  called  common  law 
and  equity  jurisdiction,  and  thus  prevent  a  reform 
of  the  civil  administration  by  blending  them  to- 
ether.  He  apprehended  that  we  should  never 
attain  this  reform  as  long  as  we  spoke  of  law  and 
equity  as  distinct  things  in  our  Constitution — so 
long  as  we  treated  them  in  the  fundamental  law 
as  things  of  a  distinct  and  different  nature,  the 
legislature  would  not  feel  at  liberty  to  unite  and 
blend  them  into  one.  This  section  as  reported, 
would,  it  is  true,  bring  them  into  one  court, 
but  it  would  still  recognize  them  as  two  sepa- 
rate and  distinct  forms  of  practice.  It  would 
perpetuate  those  separate  forms  of  practice,  in 
despite  of  anything  the  legislature  might  hereaf- 
ter feel  inclined  to  do  towards  assimilating  them. 
He  desired  to  adopt  this  phraseology — "the  judi- 


561 


cial  power  of  this  state  shall  be  vested  in  the  su- 
preme court,  and  in  the  inferior  courts  mention- 
ed in  this  article" — this  would  include  all  courts 
which  the  constitution  may  authorize  the  legis- 
lature to  crt'iitc,  ;is  well  as  those  expressly  nam- 
ed in  the  constitution.  If  we  erect  one  supreme 
court,  and  declare  that  in  it  shall  be  vested  the 
whole  judicial  power  except  such  as  may  be  par- 
celled out  to  courts  inferior  to  it,  we  shall  have 
law  and  equity  in  one  court  without  saying  one 
word  about  them  as  separate  departments  in  the 
administration  of  justice.  The  advantage  of  omit- 
tingt  o  name  them  as  distinct  departments,  is 
that  we  shall  leave  the  legislature  free  to  put  an 
•end  to  those  distinctions  in  point  of  practice. — 
But  if  we  carry  them  into  the  supreme  court  by 
Their  distinct  titles  of  law  and  equity  jurisdiction, 
it  will,  at  least,  piesent  a  serious  question  wheth- 
er the  legislature  could  annihilate  the  distinction 
by  blending  the  two  forms  of  pleading  or  other- 
wise. It  had  been  said  that  the  words  "  subject 
to  regulation  by  law"  in  the  reported  section, 
would  allow  the  legislature  to  blend  law  and  equi- 
ty into  one  form  of  pleading.  Mr.  O'C.  had  no 
hesitation  in  saying  that  he  did  not  believe  they 
would  be  so  construed  by  the  courts  or  the  legis- 
lature. The  terms  subject  to  regulation  by  law 
implied,  in  their  connection,  merely  a  regulation 
of  each  of  them  as  a  distinct  and  independent 
head  of  jurisdiction.  Mr.  O'C.  was  satisfied  that 
it  was  practicable  to  blend  them,  and  he  stood 
there  to  defend  the  opinion  that  law  and  equity 
ought  not  to  be  known  or  recognized  in  our  sys- 
tem of  jurisprudence  as  distinct  and  separate 
methods  of  administering  civil  justice. 

Mr.  WORDEN  asked  if  he  understood  the  gen- 
tleman ?  Whether  he  did  virtually  propose  to  an- 
hiliate  the  procedure  we  now  called  equity  pro- 
cedure ? 

Mr.  O'C  :>NOR :  No  sir. 

Mr.  WOrlDEN:  Does  the  gentlemen  mean 
that  pro  -codings  in  Chancery  shall  be  conducted 
in  the  manner  in  which  they  are  now  conducted? 

Mr.  O'CONOR  thought  the  system  susceptible 
of  very  great  improvement. 

Mr.  WORDEN  :  That  is  not  an  answer  to  the 
question. 

Mr.  O'CONOR  should  not  answer  every  ques- 
tion which  the  gentleman  might  frame  to  interrupt 
his  argument  That  gentleman  and  himself  en- 
tertained directly  opposite  opinions  upon  this  sub- 
ject. That  gentleman  was  for  perpetuating  the 
distinct  forms  ot  law  and  equity  pleading,  and 
would  not  go  even  so  tar  as  the  committee  had 
gone.  He  would  have  different  judges  and  courts 
to  administer  them -as  well  BLS  the  distinct  modes 
of  pleading  in  law  and  equi'y.  That  gentleman 
was  for  perpetuating  tne  present  system,  and  if 
that  system  was  not  strong  enough  to  wait  the  ter- 
mination of  an  argument  against  it,  before  present- 
ing its  defence  by  way  ot  interruption,  it  must  be 
a  w<';tk  one.  The  section  reported  proposed  to 
bri:ig  them  both  into  the  same  court.  That  was 
halt  the  work.  He  was  bound  to  vindicate  the 
propriety  of  doing  so  much,  and  would  do  so  it  H 
wen1  Ufccsv.iry.  Rut  his  immediate  object  was  to 
vindic;i'e  ih>-  propriety  of  bringing  them  together 
in  such  a  manner  that  they  might  be  blended  in 
one  uniform  and  harmonious  system  ot"  pleading 
and  practice — so  fcthat^there  might  be  kno  longer 


known  in  the  administration  of  civil  justice,  any 
such  distinction  as  law  and  equity.  [Mr.  WORDEN 
— in  his  seat  :  That  introduces  the  civil  law.] — 
Mr.  U'CoivoR  proceeded :  It  might  be  deemed 
proof  of  the  soundness  and  safety  of  the  gentle- 
man's (Mr.  WORDEN'S)  position,  that  he  could  not 
restrain  himself  until  it  was  his  time  to  answer. 
Those  who  are  impatient  of  argument  do  not 
usually  leel  the  safety  of  their  position  most 
strongly.  To  understand  this  question,  it  was 
necessary  to  look  at  what  these  things  called  law 
and  equity,  are,  as  contradistinguished  from  each 
other.  In  strictness,  there  could  not  be  said  to  be 
any  such  distinct  systems  ot  jurisdiction,  as  law 
and  equity.  They  were  more  properly  called  two 
distinct  systems  of  practice— the  one  called  the 
practice  at  law,  and  the  other  the  practice  in  equu 
ty.  By  the  practice  at  law  a  man  was  only  ena- 
bled to  recover  a  simple  money  demand — with  the 
two  exceptions  of  ejectment  and  replevin.  In 
ejectment  the  plaintiff  may  recover  land — the 
thing  itself — in  replevin,he  may  recover  a  chattel, 
the  thing  itself;  but  in  all  other  respects  a  party 
can  recover  in  the  law  practice  nothing  but  a  sum 
o'f  money.  And  to  recover  that  he  must  adopt 
one  or  other  of  five  or  six  particular  forms  of  action 
— very  technical  and  special  in  form,  and  in  which 
the  pleadings  are  almost  invariably  fict  itious — filled 
with  false  allegations  from  beginning  to  end. — 
They  bore,  to  be  sure,  a  certain  conventional  re- 
lation to  a  truth  which  they  were  supposed  to  re- 
present, and  which  conventional  relation  was 
perfectly  well  understood  by  learned  lawyers, 
tolerably  well  understood  by  the  profession  gene- 
rally, but  which  no  layman  would  understand. — 
For  instance,  if  one  were  to  rob  him  of  his  watch, 
the  forms  of  pleading  at  common  law  would  al- 
low him  to  waive  the  force,  and  to  bring  an  action 
for  the  value  of  the  watch  as  upon  a  purchase. — 
He  could  charge  that  on  a  certain  day  he  sold  and 
delivered  to  the  defendant  a  certain  watch,  in 
consideration  whereof  the  thief  promised  to  pay, 
when  he  should  be  thereto  requested,  as  much  as 
such  watch  was  reasonably  worth,  and  that  it  was 
reasonably  worth  $250.  The  defendant  would 
answer,  non-assumpsit — that  he  did  not  so  pro- 
mise. Every  word  in  the  declaration  would  be 
false,  and  the  plea  would  be  manifestly  true. — 
And  yet  there  was  no  judge  in  the  land  that 
would  not.  instruct  the  jury  that  though  this  was 
a  very  outrageous  act,  the  party  whose  watch  it 
was  had  a  right  to  waive  the  wrong,  and  to  have 
twelve  men  say  on  their  oaths  that  the  defendant 
did  promise  to  pay  what  the  watch  was  reasona- 
bly worth  in  manner  and  form  as  he  had  alleged, 
and  their  verdict  must  be  for  the  plaintiff.  This 
was  a  very  fair  specimen  of  the  fictions  which  ex- 
isted in  the  common  law  modes  of  pleading.  He 
could  consume  hours  in  giving  similar  instances, 
but  one  was  sufficient,  indeed  almost  through- 
out the  allegations  in  the  declaration  are  false  to 
every  common  and  ordinary  intent.  But  they 
were  said  to  be  technically  true,  because  by  con- 
struction of  law,  the  relation  between  the  fiction 
in  the  pleadings  and  the  truth  it  represented  was 
well  understood  by  lawyers  and  judges;  and  be- 
tween them  they  could  instruct  the  ju/y  to  bring 
in  such  a  verdict  as  worked  out  the  ends  of  jus- 
tice. It  might  be  asked  why  such  forms  were 
ever  adopted  ?  Their  origin  is  of  remote  an- 

45 


562 


tiquity,  but  there  was  no  doubt  of  the  true  reason. 
Jurors,  in  early  times,  were  very  ignorant,  and 
it  was  necessary  by  special  and  strict  proceed- 
ings to  bring  down  questions  in  issue  to  a  very 
nice  and  simple  point.  And  these  pleadings 
were  modified  from  time  to  time  until  ttiey  had 
received  the  character  that  we  now  find  impress- 
ed on  them.  They  received  their  form  at  that 
period  when  a  scholastic  pedantry  had  overrun 
and  perplexed  with  its  arbitrary  rules  every 
branch  of  science.  And  hence,  of  course,  every 
special  system  of  pleading  came  to  be  adopted. 
It  was,  however,  wholly  inadequate  to  the  ends  of 
justice  ;  and  because  it  was  so,  the  system  of  equity 
jurisprudence  was  adopted  to  supply  its  detects. — 
That  was  equity  practice.  Under  legal  practice  a 
man  could  not  get  a  discovery  from  his  adversary, 
could  not  reach  documents,  nor  get  specific  relief, 
except  HI  a  tew  cases.  To  obviate  these  detects 
in  the  law,  the  clerical  chancellors  introduced  the 
civil  law  practice — a  practice  which  however  dis. 
figured  in  &orne  places  by  unnecessary  forms,  how- 
ever disfigured  at  this  d-iy  by  extreme  prolixity, 
was  nevertheless  in  its  own  nature  flexible,  high- 
ly convenient,  and  capable  of  being  made  to  an- 
swer all  the  ends  ot  justice  There  was  literally 
no  foim  about  it.  Toe  party  stated  his  case,  and 
asked  the  relief  he  desired,  and  the  court,  if  he 
proved  his  case,  gave  him  that  relief.  Under  this 
practice,  any  suit  for  any  kind  of  remedy  may  be 
brought.  It  was  always  quite  easy  by  bill  in 
chancery  to  sue  on  a  promissory  note,  yet  as  the 
English  courts  of  common  law  had  jurisdiction  of 
the  action,  and  chancery  had  no  jurisdiction  where 
relief  could  be  had  at  law,  chancery  was  never 
permitted  to  take  cognizance  of  such  cases.  Thus, 
from  the  inadequacy  ot  the  forms  of  the  common 
law  to  answer  the  ends  of  justice,  this  equity  prac- 
tice was  introduced,  but  it  was  not  permitted  to 
act  except  in  cases  of  necessity.  Thus  the  two 
systems  grew  up  together.  And  at  the  Revolution 
they  had  courts  ot  common  law  and  courts  of 
chancery  in  England  as  we  have  them  now,  each 
exercising  au  extensive  jurisdiction,  or  as  a  legal 
writer  of  eminence  by  a  typographical  blunder 
was  made  to  say  in  regard  to  the  court  of  chan- 
cery, an  expensive  jurisdiction.  We  adopted  the 
old  English  forms;  and  hence  we  have  at  this 
day,  these  two  distinct  forms  of  practice  He 
supposed  they  could  be  abolished,  and  one  form 
made  to  answer  every  puipose.  He  thought  the 
keeprng  up  of  these  separate  forms  was  mischiev- 
ous. In  no  country  of  Europe,  except  Britain, 
did  these  two  separate  foirus  exist.  The  chan- 
cery or  civil  law  forms  obtained  throughout  the 
continent  of  Europe — indeed  throughout  the  whole 
civilized  world — wherever  jusiice  was  administer- 
ed in  a  regular  form.  1  hey  obtained,  in  Scotland, 
for  all  the  purposes  of  remedial  justice.  They 
were  used  lor  all  these  purposes  in  (he  state  ot 
Louisiana.  In  some  countries  of  Europe,  where 
the  civil  law  forms  of  practiceobtained,  and  in 
.Louisiana,  they  had  the  trial  by  jury  in  as  lull 
vii^or  as  under  the  common  law  forms.  That 
mode  of  trial  was  just  as  applicable,  in  civil  con- 
troversies, in  one  form  as  111  the  other.  The  in- 
convenience of  having  these  two  forms  of  practice 
had  been  long  felt  here.  In  every  state  in  the 
Union,  except  Mew  York,  New  Jersey,  Maryland 
and  South  Carolina,  law  and  equity  was  now  ad- 


ministered  in  the  same  courts,  though  under  dn- 
ferent  forms  of  proceeding.  And  even  in  the  four 
states  mentioned,  and  aL-o  in  England,  law  and 
equity,  in  the  last  resort,  were  administered  in 
the  same  court.  In  Great  Bri'.ain,  the  court  of 
exchequer  long  had  a  law  side  and  an  equity  side 
—  the  same  judges  administering  both  kinds  of 
practice.  Still,  generally,  they  had  been  kept 
apart,  as  to  the  modes  of  practice.  Efforts  had 
been  made  in  several  states  to  bring  them  together. 
An  effort  had  been  made  in  Pennsylvania;  but 
there  they  took  a  course  precisely  opposite  to  that 
which  good  sense  would  have  recommended. — 
They  attempted  to  make  the  fictions  of  common 
law  subserve  all  the  ends  of  civil  justice;  and  as 
those  are  utterly  incompetent  for  this  purpose, 
that  state  presented  a  very  unfavorable  specimen 
of  the  effects  of  endeavoring  to  administer  civil 
justice  in  one  form.  His  view  was  that  the  forms 
of  pleading  used  in  chancery,  reduced  arlfi  cut 
down  to  the  extent  they  might  be,  were  the  true 
forms  by  which  civil  justice  might  be  administer- 
ed in  all  cases,  in  one  court,  and  by  a  uniform 
mode  of  practice.  It  was  so  administered,  not  on- 
ly in  all  the  countries  of  Europe,  in  Scotland  and 
in  Louisiana,  but  in  all  cases  of  admirality  juiis- 
diction  throughout  the  U.  S.  Directly  under  oor 
eyes,  in  the  U.  S.  district  court  sitting  here  at 
Albany,  this  mode  of  pleading  and  practice,  sim- 
ple, uniform,  free  from  technicalities,  which  was 
adequate  to  the  administration  of  justice  in  all 
civil  cases,  was  in  full  operation.  And  Mr.  O'C. 
invited  the  Convention  to  approach  the  framing 
ot  these  provisions,  with  the  view  of  carefully 
avoiding  the  perpetuation  of  these  distinctions, 
and  enabling  the  legislature  to  simplify  and  bring 
the  two  forms  into  one,  if  practicable.  This  he 
had  shown  to  be  practicable ;  and  he  would  now  at- 
tempt to  show  that  the  working  of  these  two 
separate  modes  of  administering  justice  was  mis- 
chievous. He  held  that  the  practice  which  exist- 
ed in  courts  ot  common  law,  of  dividing  their 
forms  of  action  into  five  or  six  different  forms, 
was  ensnaring  and  utterly  useless.  It  was  wholly 
unnecessary  that  when  a  man  brought  a  suit  at 
law,  he  should  be  obliged  to  give  it  a  name  on 
pain  of  being  non-suited  if  he  gave  it  a  wrong  one. 
If-  a  man  brought  a  suit  to  recover  money  on  a 
sealed  instrument,  he  must  call  it  debt  or  cove- 
nant. If  he  sued  on  a  simple  contract  he  must 
call  his  action  debt  or  assumpsit — and  if  he  made 
a  mistake,  it  was  fatal  to  his  action.  fie  had 
heard  learned  lawyers  say  that  if  a  man  was  so 
ignorant  as  not  to  know  how  to  christen  his  bant- 
ling, he  ought  to  lose  his  suit  and  be  turned  out 
of  court.  He  could  cite  instances  showing  that 
the  most  learned  did  not  know  half  the  time, 
which  of  these  names  to  give  their  actions;  and 
our  books  were  full  of  non-suits,  after  long  liti- 
gation, merely  because  the  lawyers,  the  parties 
and  the  judges  did  not  know  what  was  the  true 
form  of  action.  Mr.  O'C.  cited  an  instance  where 
an  action  of  debt  was  Drought  to  recover  about 
$1000.  The  defendant  insisted  that  the  form  of 
action  should  have  been  covenant.  A  learned 
judge  at  circuit  decided  that  the  defendant  was 
mistaken  and  that  the  action  was  in  right  form. 
The  supreme  court,  three  years  afterwards,  in  a 
learned  opinion  citing  almost  all  the  books  of 
the  common  law,  held  the  same  opinion.  And 


563 


yet  that  judgment,  two  or  three  years  afterwards, 
was  reversed  by  the  unanimous  opinion  of  the 
court  of  errors;  and  the  plaintiff  in  the  original 
suit  was  left  to  discontinue  and  pay  costs  to  a 
•r  amount  than  the  sum  in  controversy. — 
Mr.  O'C.  maintained  that  this  cutting  up  and 
subdivision  of  lawsuits,  giving  them  each  a  par- 
ticular name,  forbidding  a  man  to  prosecute  except 
in  the  precise  form  to  which  according  to  tech- 
nical rules,  his  cause  of  action  belonged,  and 
punishing  him  if  he  had  made  a  mistake— when 
the  line  between  them  was  so  difficult  to  discover 
that  the  most  learned  judges  differed — was  idle, 
useless,  and  most  pernicious.  But  the  subdivis- 
ion between  law  and  equity  was  still  worse. — 
The  jurisdiction  of  the  court  of  chancery,  orig- 
inally narrow  and  limited,  had  become  by  degrees 
so  extended  that  it  was  difficult  to  say  of  what 
case  it  had  not  jurisdiction.  And  the  courts  of 
law  had  liberalized  their  remedies,  and,  in  imi- 
tation of  the  court  of  chancery  had  extended 
their  territory  into  the  region  formerly  occupied 
by  the  latter  ;  until,  instead  of  being  divided 
by  distinct  and  broad  lines,  these  two  jurisdic- 
tions were  actually  interlocked  in  such  away  t.hat 
it  was  difficult  for  the  most  learned  to  ascertain 
where  law  practice  ended,  and  where  the  chan- 
cery practice  begun.  And  yet  the  consequence 
of  bringing  a  suit  at  law,  when  it  should  have 
been  in  equity,  or  vice  versa,  was  a  non  suit ; — 
and  the  question  to  which  forum  the  suit  belong- 
ed, cost  not  unfrequently  years  of  litigation.  He 
cited  the  cas«  of  Elmendorf  against  Harris  in  fifth 
Wendell's  Reports,  which  turned  upon  the  ques- 
tion whether  the  defendant's  remedy  was  in  law 
or  in  chancery.  The  common  pleas  judge  de- 
cided that  relief  cowld  not  be  had  at  law.  The 
Supreme  court,  some  years  afterwards,  affirmed 
the  judgment.  Seventeen  volumes  of  Wendell's 
reports  elapse  between  this  decision  and  the  judg- 
ment of  the  court  of  errors,  by  which  it  was  re- 
versed. It  reversed  the  decision  of  the  Supreme 
Court;  and  thus,  after  a  protracted  litigation, 
which  must  have  cost  the  defeated  party  a  very 
large  sum,  a  decision  was  had  upon  its  merits. — 
The  whole  difficulty  was  in  ascertaining  the 
boundary  between  the  jurisdiction  of  these  courts. 
He  stated  another  case  in  illustration  of  the  per- 
plexity and  delays  growing  out  of  these  two  se- 
parate jurisdictions.  Mr.  O'C.  went  on  to  urge 
that  one  form  of  practice  was  adequate  to  all  the 
ends  of  justice,  and  that  the  two  forms  should  not 
be  perpetuated.  Where  was  the  difficulty  in  pre- 
scribing that  a  suit  may  be  brought  on  a  promis- 
sory note  in  the  same  form  in  which  parties 
brought  suits  in  chancery  ?  He  admitted  that  the 
practices  of  the  two  courts  were  very  different, 
!>ui  lie  denied  that  there  was  any  necessity  that 
they  should  be  so.  He  admitted  that  we  must 
have  a  court  of  Chancery,  but  under  its  form  of 
practice,  he  insisted  we  could  obtain  all  the 
remedies  we  now  had  under  these  antiqua- 
ted forms  of  the  English  common  law. — 
The  difference  beUyeen  law  and  equity,  and  the 
only  difference,  was  in  the  form  of  pleading  and 
the  remedies.  The  principles  of  law,  applicable 
to  both,  were  the  sume.  The  rules  and  princi- 
ples of  justice  delivered  from  the  bench  by  the 
chancellor  were  identically  the  same  as  those  de- 
ivered  in  the  Supreme  Court.  There  was  no 


difference  except  in  the  form  of  getting  into  court 
and  getting  out  of  it.  True,  in  the  origin  of  chan- 
cery jurisdiction,  chancellors  maintained  the  doc- 
trine that  the  rights  remedied  in  a  court  of  chan- 
cery were  those  which  the  law  did  not  exactly  de- 
fine— but  which  it  belonged  to  the  arbitrament  or 
will  of  a  good  and  conscientious  man  to  define 
and  enforce.  But  that  doctrine  was  obsolete. — 
There  was  not  at  present  any  such  thing  recog- 
nized in  jurisprudence,  as  the  will  or  arbitra- 
ment,of  a  good  and  conscientious  man  finding  some 
measure  of  justice  between  neighbors,  which 
:he  law  did  not  define  and  declare.  It  was  the 
Law  of  the  land,  and  not  the  conscience  of  the 
chancellor,  by  which  the  right  of  the  citi- 
zen must  be  determined.  The  court  of  chan- 
cery was  as  much  bound  by  the  rules  of  law, 
ay  precedent  and  former  adjudication,  as  courts  of 
Law,  and  the  principles  of  justice  were  the  same 
in  both  courts.  The  notion  that  our  rights  were 
to  be  measured  by  the  length  of  the  chancel- 
lor's foot  was  exploded  long  ago.  The  only  dif- 
ference between  the  two  courts  consisted  in  this: — 
In  chancery  the  testimony  is  ordinarily  taken  by 
deposition,  and  the  Chancellor  proceeded  with- 
out the  aid  of  a  jury.  The  chancellor  could  also 
grant  what  was  called  specific  relief.  True  it 
was  that  the  common  law  courts  could  not  grant 
all  the  relief  that  the  court  of  chancery  could, 
but  it  was  not  true  that  the  court  of  chancery 
could  not  grant  all  the  relief  attainable  in  courts 
of  law.  The  common  law  forms  were  constantly 
being  departed  from  by  legislation  ;  but  it  was  in 
such  an  inch-by -Inch,  irregular  and  disorderly 
manner,  that  whilst  it  confounded  the  distinction 
between  the  two  courts,  and  made  it  every  day 
more  and  more  difficult  to  determine  where  a 
man's  remedy  was  to  be  sought,  it  did  not  tend  to 
that  complete  consolidation  and  union  of  the 
practice  of  the  two  courts  that  was  desirable. — 
By  statute,  the  courts  of  law  now  granted  equita- 
ble relief  in  a  great  variety  of  cases — showing 
that  there  was  no  difficulty  in  bringing  these  two 
forms  into  the  same  court.  But  as  the  hour  of 
adjournment  was  near,  he  would  not  pursue  this 
subject  further  at  present.  He  maintained,  on 
the  grounds  stated,  that  it  was  expedient  to  avoid 
the  use  of  the  terms  law  and  equity  in  this 
section — and  that  in  its  place  we  should  use  some 
term  descriptive  of  the  judicial  power  generally, 
to  the  end  that  this  supreme  fountain  of  jurispru- 
dence may  have  power  to  administer  justice  in  all 
its  various  forms — leaving  it  in  the  power  of  leg- 
islation to  unite  and  bring  together  in  one  sim- 
ple, uniform  and  harmonious  mode  of  practice  the 
prosecution  of  all  civil  suits. 

Mr.  WORDEN  did  not  intend  to  follow  the  gen- 
tleman from  New  York  (Mr.  O'CoNon)  at  this  is- 
sue through  the  whole  of  his  argument.  That 
gentleman  h.id  misunderstood  him  (Mr.  W.)  in  re- 
spect to  his  views  on  the  subject  of  administering 
law  and  equity.  At  the  outset  of  the  gentleman's 
argument,  Mr.  W.  said  he  had  taken  the  liberty  to 
ask  him  to  be  a  little  more  specific  in  regard  to 
(he  nature  and  extent  of  the  changes  he  proposed 
in  our  system  of  jurisprudence,  that  he  (Mr.  W.) 
mi^ht  see  better  the  loice  and  application  of  his 
argument,  and  the  point  he  was  aiming  at,  and 
not  be  left,  with  what  poor  intellect  he  had^to 
gather  the  object  of  the  gentleman  from  the  whole 


564 


scope  of  his  remarks.  It  was  certainly  hut  a  fair 
mode  of  argument  for  gentlemen  to  put  forward 
distinctly  and  plainly,  the  positions  and  measures 
they  intended  to  support,  and  then  sustain  them 
by  argument;  and  this  was  all  he  had  desired  the 
gentleman  to  do,  and  he  could  not  see  that  it  in 
volved  any  distrust  of  the  safety  or  soundness  ot 
his  own  position,  although  he  admitted  that  the 
gentleman  from  New  York  was  right  in  saying  he 
(Mr.  WORDEIST)  distrusted  his  own  ability  in  be. 
ing  able  to  meet  and  refute  hie  arguments. — 
He  did  not  complain  that  the  gentleman  had  as- 
sumed or  said  as  much  as  that.  As  Mr.  W.  un- 
derstood the  gentleman  from  New  York,  he  was 
not  for 'abolishing  the  complex  and  tedious  pro- 
ceedings in  chancery  practice,  but  the  simple, 
concise  and  well  understood  common  law  forms 
of  procedure.  He  would  annihilate  the  common 
law  and  its  practice,  and  substitute  the  civil  law 
and  its  practice.  Every  suit  was  to  be  special, 
and  to  be  presented  with  all  its  circumstances  and 
details  in  the  special  pleadings,  to  take  the  place 
of  the  common  law  forms.  We  were  no  longer 
to  have  those  concise  modes  of  declaring  in  ac- 
tions at  law  in  which  the  conclusion  of  the  facts 
on  which  the  party  relied  is  mainly  to  be  stated, 
6ut  each  party  is  to  state  all  his  facts  in  detail, 
and  leave  the  law  to  draw  its  conclusions  from 
them  ;  an'd  this  was  to  be  done  because  it  was  so  dif- 
ficult to  comprehend  the  nature  of  remedies  which 
parties  were  entitled  to  on  a  given  state  of  facts, 
and  therefore,  as  the  gentleman  would  have  it, 
lawyers  were  often  mistaken,  and  parties  turned 
out  of  court  with  heavy  costs.  The  gentleman 
had  cited  a  case,  and  the  only  one  to  illustrate 
and  enforce  his  argument ;  that  was  an  action 
against  the  assignee  of  a  lease  to  recover  the 
amount  of  rent  reserved,  in  which  great  difficulty 
had  arisen  in  the  city  of  New  York,  in  ascertain- 
ing the  appropriate!  form  of  action.  Mr.  W. 
would  not  say  but  that  this  difficulty  might 
have  arisen  in  New- York.  It  was  very  possible 
that  there  was  a  doubt  as  to  the  appropriate 
remedy  in  the  case  referred  to;  and  it  was 
possible  that  the  question  was  one  of  difficul- 
ty. Mr.  W.  had  however  supposed  that  the 
assignee  of  a  lease  became  in  legal  contemplation 
a  party  to  and  bound  by  all  the  covenants  contain- 
ed in  the  lease  itself,  and  that  an  action  of  coven- 
ant was  the  appropriate  remedy.  Another  case 
has  been  referred  to  by  the  gentleman  :  He  ?aid 
if  a  man  knocks  him  down  and  robbed  him  of  his 
watch,  he  might  sue  the  person  in  an  action  of 
assumpsit,  and  declare  that  on  such  a  day  he  sold 
the  defendant  a  watch,  and  that  a  jury  on  oath 
would  say  it  was  true.  Now,  it  was  possible  in 
the  case  last  stated,  an  action  of  assumpsit  should 
be  maintained,  but  several  legal  gentlemen 
have  asserted  to  the  contrary.  It  it  could  be,  it 
was  on  a  principle  of  the  plainest  justice  and  right 
and  there  was  nothing  absurd  or  nonsensical  in 
the  rule.  It  was  on  the  ground  that  a  party  might 
always  waive  his  remedy  fora  personal  injury, 
and  seek  redress  for  a  portion  of  his  grievance  on- 
ly ;  therefore  if  any  one  should  get  the  gentle- 
man's watch  by  violence  or  fraud,  and  convert  it 
to  his  own  use,  the  law  said  the  party  thus  pos- 
sessing himself  of  another's  property,  might 
at  the  ejection  of  the  real  owner  be  regard- 
ed as  a  purchaser,  and  proceeded  against  as 


such;  therefore  every  person  who  wrongfully 
possessed  himself  of  another's  goods,  and  con- 
verted them  to  his  own  use,  understood  full  well 
that  it  was  the  right  of  the  owner  to  consider  him 
as  a  purchaser,  and  as  such  to  compel  him,  in  a 
court  of  law,  to  pay  for  them.  There  was  no- 
thing, therefore,  fictitious  or  artificial  in  the  form 
of  the  action  in  the  case  cited  by  the  gentleman ; 
the  wrong-doer  was  bound  to  know  when  he  took 
property  violently,  that  the  owner  might  consider 
him  as  a  purchaser,  and  if  he  did,  a  contract  was 
complete.  But  it  is  true,  said  Mr.  W.,  parties 
are  sometimes  turned  out  of  court  because  they 
have  not  pursued  the  appropriate  remedy ;  but 
would  the  gentleman's  plan  obviate  this  ?  In 
looking  over  the  Louisiana  reports,  where  the 
practice  existed  of  formal  special  pleadings, — 
in  every  case,  Mr.  W.  said,  he  found  the  cases  in 
which  a  party  lost  his  remedy  for  mistating  his 
action,  far  more  numerous  than  in  this  State.  In 
the  form  of  pleadings  and  practice  advocated  by 
the  gentleman,  a  party  must  be  technically  accu- 
rate, not  only  to  a  common  intent,  but  to  every 
intent.  It  was  so  in  chancery  pleadings.  It  is 
so  in  the  civil  law.  The  proceedings  are  such  as 
only  the  most  specious  and  artful  pleader  alone 
can  draw  up,  while  the  forms  of  the  common  law 
are  simple,  and  very  general,  stating  the  cause  of 
action  generally,  and  in  most  cases,  where  the 
opposite  party  is  not  fully  apprised  of  the 
items  and  particulars  of  the  demand,  a  specifica- 
tion or  bill  of  particulars  may  be  obtained.  But 
yet  we  are  to  abolish  these  common  law  forms 
and  substitute  this  special  system  of  chancery 
and  civil  law  pleading  !  The  gentleman  says  he 
is  sure  ot  some  support  if  he  is  unable  to  carry 
his  plan.  He  knows  the  gentleman  from  Gen- 
esee  (Mr.  RICHMOND)  and  the  gentleman  from 
Monroe  (Mr.  STRONG)  will  be  with  him..  The 
gentleman  from  Genesee  had  promised  to  give 
a  lift  to  the  gentleman  from  N.  Y.,  and  it  might 
be  that  their  combined  efforts  would  be  able  to 
rupture  that  system  of  jurisprudence  which  our 
fathers  established,  and  which  had  been  perfect- 
ed and  impioved  by  the  ablest  and  most  enlight- 
ened minds  vhe  world  has  produced.  Although 
great  reforms  in  the  proceedings  in  chancery 
may  be  adopted,  and  thereby  the  causes  of  com- 
plaint against  local  courts  as  administering  a  dis- 
tinct system  of  equity,  jurisprudence,  removed, 
yet  Mr.  W.  said  he  doubted  whether  it  would  be 
wise  to  abolish  the  court  altogether  or  to  attempt 
te  assimilate  the  practice  of  our  law  courts  to 
that  of  the  court  of  chancery.  It  was  true, 
that  law,  as  a  rule  was  the  same  in  both  courts. 
In  equity,  special  and  peculiar  circumstances  ex- 
isted which  required  some  modification  of  legal 
rules  as  applied  to  transactions  between  par- 
ties ;  the  rights  of  two  persons  as  between 
themselves  might  be  very  clear,  but  the 
rights  of  these  parties  might  intervene,  which 
would  require  protection  and  vary  somewhat  the 
remedies  to  be  applied  between  the  principal  lit- 
igants as  in  the  case  of  agreement,  which  may  be 
specifically  performed.  If  A  contracts  to  sell  B  a 
piece  of  land  and  then  refuses  to  comply,  as  be- 
:ween  these  persons  the  contract  should  be  car- 
ried into  effect  in  equity  ;  but  the  rights  of  others 
may  be  effected  thereby :  creditors,  purchasers 
&c.,  may  alter  the  contract  or  even  before  have 


565 


acquired  interest  in  the  land  of  A,  or  such  lien 
upon  it  as  would  render  it  inequitable  as  against 
them,  that  the  contract  should  be  specifically  per- 
formed ;  and  in  all  the  complicated  and  various 
transactions  between  individuals,  cases  of  this 
kind  frequently  arise,  which  were  appropriate  for 
a  court  of  equity, '  proceeding  on  the  grounds  of 
practice  peculiar  to  itself  and  calculated  not  only 
to  discover  but  to  protect  and  enforce  the  rights  of 
all  parties.  But,  Mr.  W.  said,  he  did  not  propose  to 
take  up  time  in  arguing  upon  the  propriety  of 
sustaining  a  separate  organization  of  the  court  of 
Chancery.  That  court  was  probably  doomed. — 
His  principal  object  was  to  draw  attention  to  the 
fact  that  his  learned  friend  from  New- York  in- 
stead of  abolishing  the  Court  of  Chancery,  would 
abolish  the  common  law  form  of  procedure  and 
make  every  case  the  case  for  a  bill  in  Chancery. 

Mr.  STETSON  offered  an  additional  section. 
He  said  if  we  were  not  to  have  two  district  courts 
of  law  and  equity,  he  wished  to  have  this  in- 
serted : 

"  And  to  the  end  that  ultimately  the  jurisdictions  of  law 
and  equity  may  not  be  separately  administered,  and  that 
the  two  may  be  blended  into  one  harmonious  sytem.  the 
legislature  shall  provide  by  law,  as  far  as  may  be,  common 
form  of  procedure  for  remedies  arising  under  both  juris- 
dictions." 

The  committee  then  rose,  reported  progress  and 
obtained  leave  to  sit  again  ;  and 

The  Convention  adjourned  to  9  o'clock,  A.  M. 
to-morrow. 


TUESDAY,  (59th  day,)  August  11. 

Prayer  by  the  Rev.  Mr.  MORROW. 

Mr.  MURPHY  presented  a  petition  from  lead- 
ing men  of  both  political  parties  in  Kings  county, 
adverse  to  the  election  of  judges  by  the  people. 
It  -was  reie-red  to  the  committee  of  the  whole 
having  charge  of  the  reports  of  the  judiciary  com- 
mittee. 

1*,  was  read  and  referred.  The  Convention  re- 
fused to  print  it. 

Mr.  SWACKHAMER  moved  to  reconsider  this 
reference.  Objected  to. 

Mr.  SWACKHAMER  desired  to  explain.  Ob- 
jected to. 

The  memorial  of  Mr.  R.  Townsend,  jr.,  on  ju- 
dicial reform  was  referred. 

Mr.  SWACKHAMER  offered  the  following . 

Resolved,  That  the  committee  of  the  whole  having  in 
charge  the  several  ivports  irorn  the  committee  on  the  ju 
dioiaiy,  be  instructed  to  report  the  following  section  to 
the  Constitution.  That  the  judicial  power  of  tnis  State 
shall  be  vested  in  our  Supreme  Court,  and  in  such  inferior 
co-irts  as  may  be  authorized  by  this  Constitution. 

Mr.  S.  said  that  he  offered  this  resolution  in 
order  to  settle  an  important  principle  before  they 
proceeded  farther  in  discussing  the  reports  of  the 
judiciary  committee. 

Mr.  SHEPARD  moved  to  refer  it  to  the  com- 
mittee of  the  whole  having  charge  of  the  judiciary 
rep'. 

Mr.  WORDEN  thought  there  was  much  pro- 
priety in  the  suggestions  of  this  resolution.  It 
contains  a  principle  that  ought  to  be  settled  at 
the  outset.  Whether  we  will  have  a  separate 
court  of  equity,  or  whether  we  will  blend  the 
powers  of  law  and  equity  in  one  court.  There 
was  much  good  sense  in  the  suggestion  of  the  re- 
solution. At  any  rate,  this  principle  ought  to  be 


settled  at  once.  He  believed  that  the  minds  of 
the  Convention  were  made  up  on  this  point;  but 
at  the  proper  time  he  had  an  amendment  to  offer, 
having  this  object  in  view. 

The  resolution  was  referred. 

Mr.  SMITH  had  leave  of  absence  for  two  weeks. 

Mr.  WHITE  offered  the  following  resolutions: 

Resolved,  That  a  judicial  system  should  be  provided 
embracing  the  following  principles : — 

1.  That  equitable   relief  be  administered  in  the  same 
courts  in  which  legal  remedies  are  enforced,  without  a  se- 
parate court  of  chancery. 

2.  That  provision  be  made  for  the  enactment  within  a 
specified  time,  of  a  code  of  procedure  by  which  the  dis- 
tinction between  common  law  and  equity  jurisdiction  shall 
be  abolished,  and  justice  administered  in  all  civil  cases  in 
an  uniform  mode  of  pleading  and  practice. 

3.  That  the  judges  of  the  supreme  or  superior  court  of 
original  jurisdiction,  be  elected  by  the  people  in  districts 
lor  a  term  of  —  years. 

4.  That  the  county  courts,  or  courts  of  common   pleas 
be  retained  and  re-organized  in  such  manner  as  to  give 
them  more  efficiency  and  usefulness. 

5  That  the  surrogate's  jurisdiction  be  retained  and  uni- 
ted to  the  county  courts. 

Mr.  W.  moved  to  refer  these  to  the  committee 
of  the  whole  having  charge  of  the  judiciary  re- 
ports. Agreed  to. 

Mr.  TAGGART  moved  the  transmission  to  the 
Assistant  Register  and  to  the  clerks  of  the  2d,  3d, 
and  5th  circuits,  of  the  resolution  calling  for  a 
statement  of  sales  of  real  estate  belonging  to  in- 
fants, with  a  request  that  they  furnish  answers  to 
the  same.  Agreed  to. 

Mr.  LOOMIS  called  for  the  consideration  of 
the  report  made  by  Mr.  RTJGGLES  yesterday,  rela- 
tive to  the  resolution  offered  some  days  since  by 
Mr.  MARVIN,  calling  for  the  names  of  the  own- 
ers or  claimants  of  monies  in  the  hands  of  the 
Chancellor. 

The  CLERK  read  the  report. 

Mr.  PERKINS  moved  to  amend  Mr.  MANN'S 
resolution  by  inserting  after  the  word  "  interest- 
ed" the  following  words  "  And  in  case  the  name 
cannot  be  ascertained,  then  the  title  of  the  suit 
from  whence  the  fund  originated."  Agreed  to. 

Mr.  LOOMIS  proposed  to  add  at  the  end  of  the 
resolution  after  the  word  "  funds"  the  words — 
And  showing  how  such  funds  are  invested,  at 
what  rates  of  interest,  and  how  the  income  is  ap- 
propriated op-invested."  Agreed  to. 

Mr.  TAGGART  moved  to  strike  out  the  word 
"  this  Constitution,"  and  to  insert  "  the  next  leg- 
islature within  10  days  after  the  commencement 
of  its  session."  He  said  that  we  could  not  get 
the  information  here  in  time  to  be  of  any  service. 

Mi.  LuOiVilS  tUoiigiit  we  could  easily  gel  the 
inform  1 1  nm  hcrr  in  a  week.  lib-re  is  a  lar^e  fund 
of  over  $3,000,000,  and  the  Lcgishiiure  has  ap- 
propriated year  at:er  year  private  properly  to  pub. 
lie  use,  without  any  remuneration — taking  thr  in- 
terest  of  this  money  to  buy  a  lar^e  and  valuable 
library  for  the  Chancellor."  This  was  contraiy  to 
the  Constitution,  and  as  we  are  now  re-organizing 
the  Constitution,  we  ought  to  gu:ud  ;iLj;./n*t  ibis 
nbuse.  The  whole  history  of  this  tnnd  ouyht.  to 
be  made  known  to  the  whole  community,  it  was 
very  proper  fhat.  this  information  should  be  laid 
before  this  body  in  detail  ;  the  Convention  had 
power  to  call  tor  all  this.  The  history  ol  Tie 
Court  ot  Chancery  was  not,  or  ought  not  to  be  ;* 
secret  one;  all  who  went  there,  went,  there  opnily. 

Mr.    RUGULKS  thought  it    would    take  many 


566 


weeks  to  compile  and  gather  from  the  records  the 
information  heredeaired.  He  considered  that  the 
printed  documents  of  1838 — the  report  made  to 
the  Legislature  by  the  Court  of  Chancery — con- 
tained all  the  information  in  regard  to  this  fund, 
thai  was  desirable  for  the  guidance  of  the  Con- 
vention. The  information  called  for,  was  very 
proper,  and  it  might  be  desirable  to  obtain  a  full 
statement  in  relation  to  the  monies  under  the  con- 
trol of  the  Court  of  Chancery.  If  the  amendment 
to  have  this  information  sent  to  (he  next  Legisla- 
ture was  adopted,  he  would  vote  for  the  resolution 

Mr.  NICHOLAS  was  opposed  to  the  resolu- 
tion. He  said  he  would  call  on  the  chancellor 
for  the  items  which  form  the  large  fund  now  in 
the  custody  of  the  court  for  the  information  of 
the  Convention,  but  he  should  vote  against  the 
amendment  requiring  the  details  to  be  reported  to 
the  Legislature  at  its  next  session.  Should  this 
requirement  be  made,  we  should  transcend  our 
duty  and  power.  We  may  call  for  any  information 
necessary  for  our  own  guidance,  but  it  is  not  in- 
cumbent upon  the  convention  to  instruct  or  en- 
lighten the  legislature  in  its  action  on  any  speci- 
fied question.  The  legislature  is  fully  "compe- 
tent to  obtain  for  itself  all  necessary  information 
on  every  subject.  The  report  already  received 
on  this  subject  contains  all  the  information  we 
need  in  regard  to  the  powers  and  duties  of  the 
Chancellor.  We  learn  from  this  report  that  the 
court  has  in  charge  three  millions  of  dollars  be- 
longing to  various  citizens  and  institutions  of  the 
country.  This  fact  alone,  as  set  forth  by  this  re- 
part,  will  of  itself  convince  every  person, 
that  our  chancery  system,  as  heretofore  organi- 
zed, imposes  on  the  chancellor  greater  responsi- 
bilities and  invests  him  with  more  power  than 
should  ever  belong  to  any  one  man  under  a  go- 
vernment like  ours.  We  do  not  therefore  need 
more  specific  information  in  regard  to  the  gene- 
ral question  of  remodeling  our  chancery  system. 
But  the  details  called  for  by  this  resolution  may 
induce  the  convention  to  adopt  a  provision  re- 
quiring the  legislature  to  make  it  the  duty  of  all 
officers  both  civil  and  judicial,  to  make  periodi- 
cally a  public  report  of  all  funds  or  balances 
which  they  by  virtue  of  their  office  have  held  be- 
yond a  specified  period  of  time.  Such  a  report 
was  required  by  law  from  the  banks  five  years 
since,  and  has,  as  we  stated  yesterday,  been  very 
beneficial  to  surviving  relatives,  who  never  be- 
fore knew  that  their  deceased  parent,  or  friend, 
or  guardian,  had  made  a  deposit  for  their  benefit. 
Hoping  that  a  full  detailed  report  from  the  Chan- 
cellor may  lead  hereafter  to  a  similar  periodical 
expose  from  every  officer  of  the  State  to  whom  is 
confided  moneys  belonging  to  his  fellow  citizens, 
he  (Mr.  N.)  should  vote  against  the  amendment, 
but  in  favor  of  the  resolution. 

Mr.  MURPHY  moved  that  the  proposed  a- 
mendment  be  laid  on  the  table,  so  as  to  carry  the 
resolution  along  with  it. 

Cries  of  oh  !  no  !   no  ! 

Mr.  MANN :  That  has  been  tried  too  often, 
already. 

Mr.  LOOM  IS  called  for  the  ayes  and  noes  on 
Mr.  MURPHY'S  motion. 

Mr.  MURPHY  withdrew  it  to  allow 

Mr.  NICOLL  to  remark  that  he  wished  the 
resolution  to  be  so  modified  as  to  leave  out  the 


names  of  the  orphans  an*  estates  that  own  this 
fund.  He  moved  to  refer  this  to  a  select  com- 
mittee to  re-modify  it.  Mr.  NICOLL  went  on  to 
say  that  if  it  was  important  to  the  Convention  to 
obtain  the  information  asked  for,  he  for  one 
would  not  oppose  the  inquiry  provided  it  could 
be  made  without  publishing  to  the  world  the 
names  of  the  individuals  interested,  or  the  funds 
now  deposited  in  the  court  of  chancery.  He  was 
sure  there  was  no  disposition  here  to  indulge  in 
a  prying  useless  curiosity  in  the  affairs  of  that 
large  class  of  persons  whose  property  had  been 
placed  under  the  care  of  the  chancellor.  There 
is  an  instinctive  unwillingness  in  mankind  to 
have  their  private  affairs  exposed  to  the  public 
gaze.  It  is  a  subject  with  which  the  public 
have  nothing  to  do.  Here  no  fraud  or  abuse  is 
charged,  and  Mr.  N.  said  he  sincerely  hoped  that 
at  least  the  names  of  the  individuals  would  not 
be  asked  for.  It  was  easy  to  perceive  how  un- 
pleasant and  painful  it  would  be  to  publish  to 
the  world  such  details.  All  the  good  effects 
sought  to  be  acquired  by  the  resolution  under 
consideration,  he  believed  could  be  obtained 
without  any  violation  of  private  matters.  Its 
phraseology  could,  in  this  respect  be  easily  al- 
tered with  this  view,  and  for  such  purpose  he 
moved  a  reference  of  the  resolution  to  a  select 
committee. 

Mr.  MANN  said  it  appeared  to  him  very  strange 
that  this  resolution  should  be  so  strenuously  op- 
posed by  professional  gentlemen;  he  had  supposed 
there  was  nothing  wrong  in  relation  to  this  fund, 
but  from  the  violent  opposition  it  had  received 
from  certain  professional  gentlemen  he  had  began 
to  believe  there  was  iniquity  under  a  cloak  some- 
where: a  portion  of  the  profession  had  acted  man- 
fully in  this  matter  and  desired  the  informa- 
tion called  for,  while  others  had  endeavored  in 
every  possible  way  by  motions  to  refer,  lay  on  the 
table  and  every  other  possible  way  to  choke  it 
down — he  gave  credit  to  those  professional  gen- 
tlemen who  had  sustained  the  resolution.  He 
hoped  the  resolution  would  come  to  a  direct  vote 
and  if  the  Convention  did  not  think  it  advisable 
to  adopt  it,  let  them  vote  it  down;  he  wanted  the 
question  to  come  to  a  direct  vote  and  hoped  it 
would  take  this  course. 

Mr.  BROWN  asked  the  gentleman  from  New 
York  (Mr.  MANN)  if  lawyers  were  more  given  to 
choking  than  any  body  else  ? 

Mr.  MANN  said  perhaps  not. 

Mr.  WATERBURY  had  helped  to  pay  money 
into  that  court.  Wanted  to  have  all  the  informa- 
tion possible  to  know  what  was  done  with  the  or- 
phan's money.  The  orphan  wanted  to  know 
what  became  of  the  money ;  and  those  who  help- 
ed the  orphan  wanted  to  know.  Let  us  have  all 
the  truth,  and  let  us  know  all  about  it.  Better 
throw  off  all  sensitiveness  on  this  subject,  and  let 
us  have  a  little  truth  and  righteousness  and  light 
and  hope  thrown  on  this  subject. 

Mr.  LOOMIS  agreed  to  refer  this  to  a  select 
committee  that  they  might  enquire  what  informa- 
tion was  contained  in  the  report  of  1838. 

Mr.  SIMMONS  could  see  no  earthly  use  in 
this  resolution,  or  the  information  sought  for  by 
it,  although  all  sorts  of  motions  had  been  made  in 
relation  to  it.  Now  he  wished  for  the 

Mr.  BAKER  :     Special   order,  Mr.  President. 


567 


The  PRESIDENT:  The  hour  (10  o'clock) 
has  arrived  that  is  set  apart  for  the  renewal  of  the 
consideration  of  the 

REPORT  ON  THE  JUDICIARY. 

Mr.  CAMBRELENG  resumed  the  chair. 

Mr.  SWACKHAMER  called  for  the  considera- 
tion of  his  resolution.  It  was  read,  as  above. 

Mr.  STETSON  called  for  his  amendment.  It 
was  read  as  follows  : 

Add  after  "law,"  in  the  third  line  of  section  3,  as  follows: 
"  And  to  the  end  that  ultimately  the  jurisdiction  of  law 
and  equity  may  not  be  separately  administered,  and  that 
the  two  may  be  blended  into  one  harmonious  system,  the 
Legislature  shall  provide  by  law,  as  far  as  may  be,  com- 
mon forms  of  procedure  for  remedies  arising  under  both  ju- 
risdictions." 

Mr.  STETSON  said  it  would  perhaps  be  ex- 
pected that  he  would  explain  the  object  of  his 
amendment.  The  section  to  which  it  applied 
vested  the  jurisdiction  of  law  and  equity  in  a  su- 
preme court,  subject  to  regulations  by  laws. — 
His  amendment  required  the  legislature  to  pro- 
vide a  common  form  of  proceeding  for  remedies 
under  both  jurisdictions,  so  that  law  and  equity 
should  not  be  separately  administered.  It  might  be 
said  that  the  words  "  subject  to  regulation  by  law" 
reported  by  the  committee  gave  the  legislature 
the  same  power;  if  so,  no  objection  could  be 
taken  by  them  to  his  amendment  except  to  its 
phraseology,  which  was  framed  so  as  to  avow  a 
distinct  object,  and  under  the  expectation  that  af- 
ter the  principle  was  sanctioned  the  language 
would  be  changed.  But  it  was  because  the  words 
"  subject  to  regulations  by  laws"  might  not  be 
construed  to  mean  the  same  with  his  amendment 
that  he  was  induced  to  offer  it.  The  jurisdic- 
tion of  law  and  equity  had  been  administered  ^>y 
courts  of  distinct  organization,  and  now  these  ju- 
risdictions v  ere  conferred  jointly  upon  the  su- 
preme courts  and  power  given  to  the  legislature 
to  regulate.  He  foresaw  that  two  parties  would 
arise  in  the  legislature,  the  one  insisting  that 
these  jurisdictions  were  to  be  separately  adminis- 
tered as  heretotore,  and  the  other  that  they  should 
be  blended.  It  would  be  a  perpetual  struggle 
and  we  would  not  have  either  the  one  system 
or  the  other.  It  would  be  a  middle  ground  posi- 
tion,and  a  judge  of  the  supreme  court  whilst  hold- 
ing a  law  term,  feeling  conscious  of  his  equity  pow- 
er would  begin  to  administer  it  without  regard  to 
forms,£,c.  So  of  the  law  when  holding  an  equi- 
ty term.  It  would  cease  to  be  a  regulated  sys- 
tem of  law  or  equity  under  a  separate  administra- 
tion that  would  be  only  partially  observed.  Now 
he  was  opposed  to  this  middle  ground  position  ; 
and  he  desired  to  remain  at  the  extreme  we  had 
occupied.  Separate  courts  of  law  and  equity,  or 
go  to  the  other,  that  of  having  but  one  set  of  forms 
lor  both  jurisdictions.  He  would  confess  that  he 
had  not  been  accustomed  to  regard  a  fusion  of  the 
two  courts  as  desirable,  and  he  would  still  prefer 
separate  courts  and  separate  jurisdictions ;  but 
that  had  been  surrendered  by  the  committee,  and 
the  Convention  generally  regarded  it  with  disfa- 
vor. Under  these  circumstances,  unless  we  could 
have  the  influence  of  the  committee  in  leading 
the  way  to  a  distinct  separate  organization,  he 
hoped  we  would  proceed  at  once  to  the  other  ex- 
treme oi  blending  the  exercise  of  the  two  juris- 
dictions. 


•Mr.  TAGGART  said  there  appeared  to  be  a  great 
reluctance  or  hesitation  lodiscussthe  general  me- 
rits of  the  judiciary  system  reported  by  the  com- 
mittee. It  was  to  him  most  embarrassing  to  en- 
ter upon,  and  (.'specially  to  take  the  lead  in  this 
matter.  Having  lor  more  than  twenty  years  been 

it  were  fastened  to  his  table  as  a  sort  ot  fixiure, 
with  no  expei  ience  in  debate,  rarely  having  en- 
gaged even  in  the  trial  of  causes  or  the  argument 
of  them  in  court,  he  felt  great  diffidence  in  at- 
tempting to  point  out  any  errors  or  defects  in  a 
plan  repoitfd  and  sustained  by  gentlemen  of  the 
high  character  and  talents  of  the  hon.  geotlenu'n 
of  fhe  judiciary  committee,  who  advocate  the 
adoption  of  this  system.  But  having  for  a  long 
time  been  impressed  with  the  importance  of  are- 
form  in  the  judiciary  system  ol  the  state  as  a 
oundation  for  a  reform  in  our  legal  proceedings, 
and  believing  that  the  plan  reported  by  the  com- 
mittee is  defective  in  its  organization,  and  will 
not  answer  the  purpose  for  which  it  was  designed, 
h*e  could  not  sit  still  and  see  the  question  taken  bv 
default.  He  therefore  begtred  the  indulgence  of 
the  committee  while  he  attempted  to  say  a  lew 
words  in  relation  to  some  of  the  defects  in  the 
system  proposed  by  this  report,  and  he  would 
then  refer  to  a  plan  for  a  judiciary  proposed  by  hi  in- 
self.  But  first  he  would  here  express  his  heartfelt 
thaiiks  to  the  honorahle  gentleman  from  New  York, 
(Mr.  O'CoNon)  who  has  so  ably,  eloquently,  and 
triumphantly  vindicated  the  principle  of  the  union 
not  only  of  the  equity  and  law  jurisdiction  in  one, 
but  of  the  uniformity  of  practice  and  proceedings 
upon  the  two  lemedies.  There  should  be  a  simi- 
larity of  proceedings  in  all  cases,  and  whether  pro- 
ceedings should  assume  the  torrn  of  equity  pro- 
ceedings, or  the  simple  and  well  known  proceed- 
ings of  an  action  on  the  case,  was  of  comparatively 
little  importance.  His  impression  had  been  that 
the  better  method  would  be  to  assimilate  all  ac- 
tions and  proceedings  to  the  simple  form  of  an  ac- 
tion on  the  case  as  now  used.  That  the  multi- 
tude of  civil  actions  now  in  use,  should  be  abolish- 
ed, and  one  plain,  simple  remedy  provided  in  all 
cases.  On  this  subject  he  did  not  know  but  he 
stood  alone  in  the  profession,  and  it  was  highly 
gratifying  to  him  to  rind  in  the  honorable  gentle- 
man from  New  York  so  able  a  champion  of  that 
principle.  The  gentleman  and  myself  desire  to 
arrive  at  the  same  result,  and  it  matters  but  little 
by  which  course  of  proceeding  we  shall  so  arrive 
at  it,  whether  by  the  simple  action  on  the  case,  or 
by  a  plain,  concise,  and  simple  bill  in  equity. 

But  to  return  to  the  subject  before  the  commit- 
tee, and  on  which  he  proposed  to  comment. 

The  judiciary  plan  now  under  consideration 
proposes  to  divide  the  State  into  eight  districts, 
and  to  hold  terms  of  the  supreme  court  in  bank  in 
each  district.  These  terms  may  be  held  at  the 
same  time  in  different  and  distant  districts,  each 
one  to  be  held  by  less  than  one-tenth  part  of  the 
court.  So  far  as  he  could  discover,  causes  might 
be  noticed  for  argument  at  either  of  these  terms, 
or  in  any  part  of  the  State.  He  might  have  three 
causes  ready  for  argument  at  a  term.  One  of 
these  causes  might  be  noticed  for  argument  by 
the  opposite  attorney  at  a  term  held  to-day  in 
Chautauque ;  another  for  a  term  to  be  held  to- 
morrow in  Suffolk  ;  and  a  third  at  a  term  held 
next  day  in  Clinton  county  Instead  of  remedy  j 


568 


ing  the  inconvenience  of  the  present  practice  in 
compelling  us  to  go  from  home  or  intrust  our  pa- 
pers to  counsel  who  are  unacquainted  with  the 
subject,  you  make  it  eight  fold  worse,  inasmuch 
as  you  have  eight  times  as  many  terms  in  eight 
times  as  many  places.  The  honorable  gentleman 
from  Herkimer  expects  the  legislature  to  remedy 
this  evil,  by  providing  that  all  causes  shall  be 
noticed  for  argument  in  the  district  where  the 
venue  is  laid  ;  but  will  the  legislature  do  this  ? — 
Why  has  it  not  remedied  a  like  inconvenience 
under  the  present  system  ?  He  (Mr.  T.)  was  op- 
posed to  leaving  this  ma'ter  to  the  legislature  ;  he 
wanted  it  provided  for  in  the  Constitution.  He 
would  not  leave  so  important  a  regulation  to  be 
provided  for  by  legislation.  He  would  remark 
farther,  there  will  be  no  uniformity  in  the  deci- 
sions of  these  eight  courts.  They  are  bound  by- 
no  common  union  or  order.  They  are  severally 
simple  district  courts.  In  name  you  call  them 
' '  supreme  court,  but  in  substance  they  are  nothing 
;'*  like  a  supreme  court. 

Mr.  T.  would  not  pursue  this  subject  farther .-r- 
He  rose  to  point  out  a  few  objections  to  the  pro- 
posed plan,  and  hoped  he  should  be  followed  by 
many  of  the  able  gentlemen  in  this  house,  who 
will  examine  that  plan  in  its  details  and  point 
out  its  defects  with  much  more  clearness  and 
ability  than  he  was  capable  of. 

He  would,  however,  before  he  sat  down,  bring 
to  the  notice  of  the  committee  the  outlines  of  a 
plan  for  a  judiciary  prepared  by  him,  and  which 
he  thought  obviated  many  defects  in  the  system 
reported  by  the  judiciary  committee. 
^  By  this  plan  he  proposed  first,  that  the  judic- 
ial power  of  the  State  should  be  vested  in  a  su- 
preme court,  district  courts,  circuit  courts,  sur- 
rogate's courts,  justices' courts,  and  such  other 
courts  as  are  authorized  in  the  article. 

Second,  a  supreme  court  (which  should  be  a 
court  of  appellate  jurisdiction  only)  to  consist  of 
eight  justices,  one  of  which  should  be  denominat- 
ed chief  justice. 

He  would  give  this  court  the  name  and  title  of 
supreme  court.  He  would  not  give  any  court  that 
name  and  title  over  which  he  gave  another  court 
supervisory  or  appellate  jurisdiction. 

He  proposed  then  to  divide  the  state  into  four 
judicial  districts,  in  each  of  which  there  should 
be  elected  seven  district  judges,  who  should  hold 
district  courts  in  their  respective  districts.  Such 
courts  to  have  original,  general,  civil  jurisdiction 
co-extensive  with  the  limits  of  the  district,  and 
to  be  appellate  courts  in  all  criminal  matters  aris- 
in°-  in  such  district,  and  for  reviewing  decisions 
of  Surrogates  and  justices.  To  have  the  same  ju- 
risdiction within  the  limits  of  the  district  that  the 
supreme  court  now  has  in  the  state ;  and  such 
equity  powers  as  may  be  conferred  by  law. 

Four  justices  of  the  supreme  court  to  be  elected 
in  the  state,  and  the  senior  judges  of  the  four  dis- 
trict courts  to  be  ex-officio  justices  of  the  supreme 
court. 

One  term  of  the  supreme  court  to  be  held  in 
each  district  every  year,  and  as  many  more  as 
shall  be  provided  by  law,  and  no  judgment,  de- 
cree, order  or  decision  of  any  district  court  to  be 
reversed  without  the  concurrence  of  at  least  four 
justices  of  the  supreme  court. 
To  be  not  ss  than  four  general  terms  of  the 


district  court  in  each  disjf ict  every  year,  to  be 
held  in  four  different  counties.  Such  terms  to  be 
held  by  not  more  than  four  nor  less  than  three 
judges,  and  special  terms  forbearing  motions  and 
other  interlocutory  or  special  proceedings,  and 
hearing  or  trying  causes  other  than  those  to  be 
tried  by  jury,  may  be  held  by  any  one  judge. — 
Both  general  and  special  terms  of  such  courts 
shall  be  holden  at  the  times  and  in  the  manner 
and  at  the  places  prescribed  by  law. 

Circuit  Courts  shall  be  held  in  each  county  of 
the  State  at  the  times  and  in  the  manner  prescrib- 
ed by  law,  and  may  be  holden  by  any  district  judge 
of  any  district,  or  by  any  justice  of  the  Supreme 
Court. 

The  circuit  courts  to  possess  original  jurisdic- 
tion in  all  criminal  matters,  (except  such  as  shall 
be  cognizable  xn  justices'  courts)  and  shall  try  is- 
sues  of  fact  joined  in  the  district  court  tor  trial  in 
such  county. 

It  would,  therefore,  be  seen  that  he  had  endea- 
vored to  restore  the  judicial  system  which  existed 
prior  to  1S21  as  tar  as  practicable.  All  the  judg- 
es and  justices  would  be  judges  in  bank,  and  all  of 
them  might  hold  circuits  in  every  part  of  the 
State.  He  had  divided  the  court  of  highest  origi- 
nal  jurisdiction  into  districts,  because  no  single 
court  would  be  competent  to  transact  the  business 
of  the  entire  -State;  but  the  four  courts  possessing 
the  same  power  arid  jurisdiction  within  their  dis- 
tricts that  the  former  supreme  court  possessed  in 
the  whole  State,  would,  as  he  thought,  be  capable 
)f  transacting  all  the  business  without  injurious 
delay. 

For  the  trial  and  decision  in  criminal  cases,  he 
proposed  having  the  surrogate  and  a  justice  of  the 
peace  of  the  county  associated  with  the  judge  or 
justice  who  holds  the  court,  as  proposed  by  the 
gentleman  from  Seneca. 

Mr.  T.  also  in  his  plan  provided  for  the  estab- 
lishment of  inferior  courts  in  those  counties  which 
should  have  a  population  exceeding  60.000  inhab- 
itants, with  the  view  of  providing  J'or  the  admin- 
istration of  justice  in  the  large  cities  ond  villages, 
in  cage  the  district  courts  with  the  Circuits  shall 
prove  inadequate  to  transact  all  of  the  business  in 
those  counties 

He  had  also  provided  that  the  Legislature  should 
by  law  so  regulate  the  practice  and  proceeding  in 
all  of  the  courts,  lhat  every  party  might  have  any 
remedy  or  relief  to  which  he  mi^ht  be  entitled  in 
ne  and  the  same  action,  suit  or  proceeding,  with- 
out resorting  to  another  action.  The  plan  of  the 
committee  proposes  to  leave  this  matter  optional 
with  the  Legislature.  He  was  unwilling  so  to 
leave  it.  He  desired  to  insert  a  provision  making 
it  imperative  upon  the  Legislature  to  act. 

He  had  also  provided  in  his  plan  that  there 
should  be  no  appeal  from  justices'  courts;  but 

es  might  be  removed  from  those  courts  to  the 
district  courts  by  writ  of  certiorari  after  judgment 
which  courts  should  review  the  decision  of  the 
justice  and  render  such  judgment  as  ought  to  have 
been  rendered  before  the  justice.  But  if,  by  rea- 
son of  the  exclusion  of  evidence,  or  the  inability 
o  procure  evidence  before  the  justice,  a  new  trial 
>ught  to  be  granted.  Such  court  shall  order  a 
lew  trial  before  the  justice  who  tried  the  cause.or 
some  other  justice  of  |the  same  or  au  adjoining 
town. 


569 


He  said  that  by  the  old  twenty-five  dollar  act  the 
supreme  court,  In  deciding  cases  brought  up  from 
jutices'  courts  by  certiorari,  were  bound  to  gives 
judgment  as  the  very  right  or  the  case  should  be, 
without  regard  to  technicalities.  Under  that  law 
the  court  had  only  reversed  or  affirmed  the  judg- 
ment. The  court  ought,  in  his  opinion,  to  have 
gone  farther,  and  if  they  could  see  from  there- 
turn  that  either  party  was  entitled  to  a  judgment, 
but  different  from  tin:  one  rendered,  they  should 
have  rendered  such  judgment  and  not  sent  the 
parties  bark  remediless.  It  they  could  see  that 
injustice  had  been  done,  and  in  what  it  consisted, 
wny  not  apply  the  equitable  principle  and  correct 
the  error  and  end  the  litigation.' 

Hi*  pian  also  provided  that  no  cause  should  be 
removed  from  any  district  court  to  the  supreme 
court  in  actions  arising  upon  contractor  judgment, 
unless  the  amount  in  controversy  exceed  the  sum 
ot  &5UI).  It  had  also  provided  for  the  election  of  a 
cleik  of  the  supreme  court,  and  made  county  clerks 
ex  officio  clerks  of  district  courts.  All  of  which 
clerk?  to  be  paid  by  salaries,  and  to  account  for 


The  term  of  office  of  the  first  class  shall  exphe  at  the  end 
of  two  years,  ot  the  second  at  the  end  ot  lour  years,  of  the 
the  third  at  the  eud  of  six  years,  and  ot  the  fourth  at  the 
end  of  eight  years.  And,  alter  said  first  election  onu  jus- 
tice shall  be  elected  every  second  year,  and  they  shall  se- 
verally hold  their  offices  for  the  term  of  eight  years.  And 
provision  shall  be  made  by  law  designating  one  of  the 
justices  ol  the  supreme  court,  chief  justice,  aud  lor  classi- 
fying such  justices,  and  the  judges  ot  the  district  courts. 

§  6.  One  term  of  the  supreme  court  shall  be  held  in  each 
district  erery  year,  and  as  many  terms  in  addition  thereto 
as  shall  be  prescribed  by  law.  And  nu  judgment,  decree, 
order  or  decision  of  any  district  court,  shall  be  reversed 
without  the  concurrence  of  at  least  tour  justices  of  the  su- 
preme court. 

§7.  General  terms  of  the  district  courts  may  be  holden 
by  not  less  than  three  and  not  more  than  lour  judges,  and 
special  terms  for  heanng  motions  and  other  imerlocntery 
or  special  proceedings,  and  hearing  or  trying  causes,  other 
than  those  to  be  tried  by  a  jury,  may  be  held  by  anv  one 
judge;  and  not  less  than  four  general  terms  of  said  court 
shall  be  h^ld  m  each  district  every  year,  and  shall  be  hr>i'i 
in  four  different  counties.  Both  general  end  special  terms 
ot  such  courts  shall  be  held  at  the  times  and  in  the  manner 
and  at  the  places  prescribed  by  law. 

§  8.  Circuit  courts  shall  be  held  in  each  county  of  th* 
state  at  the  times  and  in  the  manner  prescribed  f>y  law, 
and  may  be  ho'den  by  any  district  judge  of  the  district  in 
which  such  county  is  situated,  or  of  any  other  district 
judgr,  or  by  any  justice  of  the  supreme  court.  The  circuit 
courts  shall  possess  original  jurisdiction  in  all  criminal 
matters  (except  such  matters  bs  shall  bt  cognizable  in  ius- 
,.__* *<•--*-• district 


their  fees  to  state  or  county,  as  shall  be  provided 
by  law.     Courts  might  leier  causes  except    inac- 
tions for    wrongs.       And  to  insure    uniformity  of  jtices  courts,)  and  try  issues  of  fact,  joined  In  th 
pra'-nee   and   ptoeeedings,  he  had    provided  that  |  courts  for  trial  in  sut:h  county. 

the  supreme  court  should  prescribe  rules  regulating     ,  §  ?•  TheA™lic'e??L^  s"?™mQ  court  und- district  J"d?eK 
the  practice  and  proceedings  in  that  and  the  district 
courts. 

Mr-  T.  concluded  by  so  modifying  his  motion  to 
strike  out  the  thud  section,  that  it  should  be  a  re- 
solution to  strike  out  such  section  and  insert  the 
following,  viz: 

$3.  The  supreme  court  (which  shall  be  a  court  of  ap- 
pellate jurisdiction  only)  shall  consist  of  eight  justices, 
one  of  whom  shall  be  denominated  chief  justice. 

The  following  is  the  plan  for  a  Judiciary  Sys- 
tem subnutfed  by  Mr.  TAGGART  :— 


shall,  severally  at  stated  times,  receive  tor  their  services  <* 
compensation,  to  be  established  by  law.  The  legislature 
which  shall  first  assemble,  after  the  adoption  of  this  con- 
stitution, snail  fix  such  compensation,  and  the  same  may 
be  altered  at  every  fifth  annual  session  of  the  legislature 
thereafter,  and  at  no  other  time;  and  no  law  altering  the 
comp  nsation  of  such  justices  and  judges,  shall  take  effect 
until  the  first  day  of  January,  next  after  the  passage  there- 
of. And  said  justices  and  judges  shall  receive  no  lees  or 
perquisites  of  office,  or  other  compensation  than  such  as 
shall  be  so  provided  by  law. 


10.  Such  justices  and  judges  shall  hold  no  other  office 
or  public  trust;  and  all  votes  given  lor  either  ol  them,  lor 
any  other  office  by  the  legislature  or  the  people,  shall  be 
void. 

§11.  For  the  trial  or  decision  in  criminal  cases,  there 
§  1.  The  judicial  power  of  the  State  shall  be  vested  in  a  I  shall  be  associated  with  the  judge  or  justice  who  holds 
supreme  court,districtcourts,circuit  courts,  justices  courts  !  the  court,  the  surrogate  and  one  of  the  justices  of  the 
and  in  such  other  courts  as  are  authorized  in  this  article.    |  peace  of  the  county  in  which  the  court  shall  be  held;  or 


The  supreme  court  (which  shall  be  a  court  of  ap- 
pellate jurisdiction  only,)  shall  consist,  of  eight  justices, 
one  of  whom  shall  be  denominated  chief  justice. 

§  3.  The  State  to  be  divided  into  a  judicial  dis- 
trict, in  ench  of  which  there  shall  be  a  court  to  be  deno- 
minated the  district  court  of  such  district.  Such  (Jistrict 
court  to  be  courts  of  original,  general,  civil  jurisdiction, 
co-extensive  with  the  limits  ot  the  district,  and  appellate 


in  case  of  the  absence  of  the  surrogate,  two  justices  ol  the 
peace.  And  in  the  city  of  New  York,  two  judges  of  such 
inferior  court  as  the  legislature  may  by  law  direct. 

^  1-2.  Inferior  courts  of  civil  and  criminal  jurisdiction, 
may  be  established  by  the  legislature,  in  any  count} 
which  shall  have  more  than  sixty  thousand  inhabitants. — 
From  which  courts,  appeals  or  writs  of  error,  or  both.Jzas 
shall  be  provided  by  law,  may  be  brought  to  the  district 


couits,  in  all  criminal  matters  a  i  is  ing  in  such,  districts,  j  court  of  ine  district  in  which  such  county  may  be  situ 
and  for  reviewing  decision  of  surrogates  and  justices,  and  ted;  but  no  judge  of  any  such  court  shall  hold  any  other 
of  all  inferior  courts  in  such  district,  and  possess  ail  such  j  office.  And  every  judge  of  the  courts  so  to  be  established, 
powers  within  the  district  as  are  now  possessed  by  the  j  shall  receive  for  his  services  a  compensation,  which  shai* 
supreme  court  in  the  state,'  and  all  such  equity  powers  as  j  not  lie  increased  or  diminished  during  his  continuance  in 
may  be  conferred  by  law,  and  any  process  of  such  court  i  office;  and  he  shall  receive  no  fees  or  perquisites  of  uiiice, 
to  be  issued  after  any  suit  or  proceeding  shall  be  commen-  !  and  shall  hold  his  office  for  the  term  ol  live  years. 
ced,  may  be  issued  to  any  part  of  ,hc  state.  !  {j  13.  The  legislature,  shall  by  law,  so  reg'uiate  the  prac- 

§  4.  There  shall  be  si-.ven  judges  elected  in  each  district  j  tice  aud  pioceedings  in  such  courts,  that  ever}  party  may 
at  the  first  annual  election  after  the  adoption  of  this  Con-  j  have  any  remedy  or  relief  to  which  he  in;:y  be  entitled  in 
stitution,  \v  h'j  shall  be.  divided  into  classes  to  ue  numbered  j  one  and  same  action,  suit  or  proceeding,  without  resorting 
1,2,  3,  4,  5,  8,  and  7.  The  term  ot  office  of  the  first  class  j  to  any  other  action;  and  the  testimony  in  all  cases  to  be 
shall  expire  at  the  end  of  two  years,  ol  the  second  class,  j  taken  at  the  trial,  or  hearing  before  the  court,  referee  or 
at  the  end  of  four  years,  ol  the  thir>l  class  at  the  end  of  j  referees,  except  such  as  may  be  taken  out  of  court  upon 
six  ye'^rs,  of  the  fourth  class  at  the  end  of  eight  years,  of  i  commission,  or  taken  conditionally,  or  to  perpetuate  tesu- 
the  fifth  class  at  the  end  often  years,  of  the  sixth  class  at  j  mony,  in  cases  piovii'ed  bylaw 

the  end  of  twelve  years,  and  of  the  seventh  class  at  the  j  §  14.  Surrogates  shall  be  elected  at  the  annual  election, 
end  of  fourteen  years.  And  after  said  first  election,  one  j  in  each  county,  arid  shall  hold  their  offices  for  four  years, 
judge  in  each  district  shall  be  elected  every  second  year,  >  and  shall  receive  lor  their  services  a  compensation,  to  be 


and  they  shall  severally  hold  their  offices  for  the  term  of 
fourteen  years. 

§5.  The  judges  of  th«  district  courts  shall,  during  the 
last  two  yenrs  ul  their  official  terms,  respectively,  be  ex- 
officio  justices  of  the  supreme  court.  The  other  lour  jug. 
tices  of  the  supreme  court,  shall  be  elected  at  the  first  an- 
nual election  aftr-r  the  adaption  of  this  constitution,  and 
shall  be  divided  into  classes  to  be  numbered  1,  2,  3  and  4. 

46 


established  t>y  law,  and  shall   receive  no  fees,  perquisites 
or  other  compensation 

^  Id.  The  electors  of  each  town  shall,  at  their  annual 
town  meetings,  and  in  sucii  manneras  the  legislature  shall 
direct,  elect  the  justices  of  the  peace.  The  term  of  office 
of  justices  shall  be  lour  years.  Tlje  number  to  be  elected 
and  their  classification  shall  be  regulated  by  law.  But  the 
justices  who  shall  be  in  office  when  this  Coiislittition  takts 


570 


effect,  shall  remain  and  continue  in  office  for  the  residue 
of  the  term  for  which,  they  shall  respectively  have  been 
elected 

§  16.  There  shall  he  no  appeal  from  justices"  courts;  but 
causes  may  be  removed  from  such  courts,  alter  judgment 
therein,  to  the  district  court  of  the  district  in  which  the 


on  which  the  Convenflbn  could  agree. — 
There  had  been  much  difference  of  opinion 
among  them,  but  they  had  yielded  individual  pre- 
ferences and  made  concessions  in  order  to  harmo- 


to the  district  court  ol  the  district  in  wiucn  the  ,  nj/e        A   m.,ioritv  of   *hp  rnrnmitfpo  h-irl    •vrr^H 
justice  resides,   by  writ  of  certiorari.     The  district  court  |  ,    *?'      1  ie  committee  had    c^ieed, 

shall  review  the  proceedings,  and  decision  of  the  justice,  j  Put  there  vvere  otner  members  who  could  not  ieel 
and  render  such  judgment  as  ought  to  have  been  rendered  |  it  their  duty    to  give  Up  their  first  impression 
before  the  justice.    But  if,  by  reason  of  the  exclusion  of  j  In  this  state  of  things,  it  was  quite  apparent 
evidence,  or  inability  to  procure  evidence  before  the  jus-  i  fi,,,        4.  ^,,,j  i 


evidence,  or  inability  to  procure  evidence  beiore  the  jus 
tice,  a  new  trial  ought  to  be  granted,  such  court  shall  or- 
der a  new  trial  before  tha  justice  who  uied  the  cause,  or 
before  some  other  justice  of  the  same  or  an  adjoining 
town. 

^  17.  No  cause  shall  be  removed  from  any  district  court 
to  the  supreme  couri  in  actions  arising  upon  contract  or 
judgment  unless  the  amount  in  controversy  shall  exceed 
the  sum  of  live  hundred  dollars. 

!)  18  Justices  of  the  Supreme  Court,  district  judges,  sur- 
rogates and  judges  of  any  inferior  court  auinorized  to  be 
tux-ated  by  this  article  may  be  remove.!  by  joint  resolution 
of  the  Legislature,  if  two-thirds  of  all  the  meml.ers  of  the 
Assembly  and  a  majority  of  all  the  members  elected  to  the 
Senate,  concur  therein.  But  no  removal  shall  be  made 
unless  the  cause  thereof  be  entered  on  the  journal-,  nor  , 
until  the  party  complained  of  shall  have  been  served  with  any  amendment  could  be  ottered  tiiat  would  im- 
a.  copy  of  the  complaint  against  him.  and  shall  have  had  an  prove  it,  or  if  any  entire  plan  could  be  produced 
opportunity  of  being  heard  in  his  defence.  On  the  question  |  preferable  to  that  of  the  majority  of  the  commit- 

srsaa  w^^^'srsssavs  \  ^  ^  ™y.  ™st  ""W  adt '  i£v But  ex- 

district  court  of  the  district  in  which  he  resides."  And  i  penence  had  led  him  to  believe  that  if  any  nurn- 
rio  jus-ice  of  the  peace  shall  be  removed  until  he  j  ber  of  projects  should  start  up,  and  he  thought 
shalUiave  been  served  with  a  copy  of  the  complaint  against  j  there  were  likely  to  be  many,  no  two  of  them 
him  and  shailhaye  ia<_  an  oppoitumty  p  n  j  ^,nnlrl  >,0  *}\}f0  There  were  five  of  the  commit- 


that 

the  report  must  be  wrecked,  unless  it 
ceive  the  candid  and  liberal  consideration  of  the 
Convention,  and  the  community  would  be  left  to 
groan  under  their  past  intolerable  grievances. — 
He  was  not  wedded  to  any  plan,  nor  had  he  the 
vanity  to  believe  for  a  moment  that  his  own  opi- 
nions were  preferable  to  those  of  others.  But  he 
had  made  it  the  rule  of  his  conduct  to  state  frank- 
ly his  own  views,  and  to  hear  those  of  other  gen- 
tlemen, and  when  disagreements  existed  to  re- 
concile them  if  he  could.  He  was  now  about  to 
say  that  if  many  new  projects  should  arise,  if 


a  justice  shall  be  had  in  the  county  where  he  resides,  and  j  tee  who  differed  with  the  majority,  and  their 
Jim- be  had  before  any  district  judge:  but  such  judge  !  conscientious  determination  to  discharge  their 
shall  report  the  proofs  and  allegations  to  the  district  court,  jduty  witn  unyielding  firmness,  was  evinced 
and  no  removal  shall  be  made  except  at  a  general  term.  ,  •,  f  ,  .,  /  '  r  4-1  i  j  u 

(,  ID.  A  clerk  of  the  Supreme  Court  shall  be  elected  at  a  !  ty  the  fact  that  no  two  of   them  had  been  able  to 
general  election,  and  shall  hold  his  oltice  four  years,  and  J  agree  with  each  other  ;  and  so  earnest  was  one  of 
shall  receive  lor  his  services  a  compensation  to  be  estab-  j  that   number  to  complete  a  system   of  his  own, 
^/^LL^f^!?/*-0J^£lK"r^Jt?Jr !  perfect  in  his  judgment  in   all  its  parts,  that  he 


-iished  by  law, 

fees,  perquisites  or  other  compensation.    Clerks  of  coun-  |  - 

ties  shall  be  ex-officio  clerks  of  the  district  courts  and  i  had  appeared  to  be  unable  to  ^agree  with  himself, 
county  courts:,  and  shall  receive  for  their  .services,  as  such 
clerks,  a  compensation  to  be  established  by  law,  and  shall 
not  receive  for  their  own  use  any  fees,  perquisites,  or  oth- 
er compensation  for  such  services.     And  all  of  such  clerks 
shall  account  for  all  !ee*  received  by  them,  respectively, 
for  services,  as  clerks  of  such  courts  to  the  State  or  coun-  i ; 
ty ,  as  shall  be  provided  by  law. 


§  -20,  Any  such  courts  may  order  causes  pending  therein, 
to  be  referred  to  one  or  mure  referees  for  hearing  and  de- 


[Much  laughter.]  Mr.  J.  judged  so  from  the  fact 
that  the  gentleman  referred  to  had  on  this  floor 
asked  time  to  draw  his  report,  or  at  least  to  com- 
plete it,  several  days  after  the  chairman  had  pre- 
ented  the  majority  report.  [Cries  of  "  name 
him."]  No,  he  would  not  name  the  gentleman 


without  his  consent,  but  this  he  could  and  would 


cision  therein,  in  cases  prescribed  by  law;'  but  no  civil  ac-  i  say,  that  he  was  one  for  whose  talents  and  integri- 
tion,  founded  in  tort,  shall  be  referred,  without  the  consent !  ty  he  entertained  the  highest  possible  respect, 
of  all  the  parties  to  such  action. 
^i!l-  Tht-  supreme  court  shnll  prescribe  rules,  regulating 


the  practice  and  proceedings  in  the  supreme  court  and  dis- 
trict courts,  subject  to  alteration  by  law. 

Mr.  JORDAN  had  listened  with  interest  to  the 
explanations  of  the  chairman  and  other  gentlemen 
of  the  committee  on  presenting  the  report,  some 
days  since.  He  had  also  given  his  attention  to 
the  several  minority  reports,  and  the  remarks  of 
the  gentlemen  who  had  brought  them  forward. — 
They  had  now  been  favored  with  another  distinct 
plan  of  organization  by  the  gentleman  from  Ge- 
nesee  (Mr.  TAGGART)  ;  and  from  present  appear- 
ances, he  should  judge  there  were  others  yet  be- 
hind. He  must  take  occasion  to  say,  that  in  the 
multitude  of  propositions,  they  were  likely  to  get 
into  inextricable  uitficulties,  if  every  member  of 
the  Convention  should  determine  to  resist  all  plans 
which  did  not  precisely  and  in  all  particulars  ac- 
cord with  his  views.  Should  such  unfortunately 
be  the  case,  they  could  arrive  at  no  results.  He 
had  great  doubts  and  fears,  unless  gentlemen  could 
yield  minor  points  for  the  general  good.  The 
committee  of  thirteen  of  which  he  had  had  the 
honor  to  be  a  member,  had  proceeded  to  their  du- 
ties with  an  earnest  desire  to  devise  a  system 


Mr.  WORDEN  said  that  if  he  was  alluded  to.. 


his  report  word  for   word  was  presented  in  com- 
mittee before  it  was  presented  here. 

Mr.  JORDAN  said  he  would  then  correct  his 
error.  He  had  not  before  seen  or  heard  the  re- 
port, but  if  the  honorable  delegate  from  Ontario 
affirmed  it  to  be  so,  he  must  believe  it  as  much  as 
if  he  had  himself  seen  it.  It  is  much  easier  i  said 
Mr.  J.)  to  find  fault  with  a  plan  and  pull  it  to  pieces 
than  to  originate  a  better.  He  did  not  intend  to 
apply  this  remark  to  the  minority  nor  did  he  apply 
it  to 'the  gentleman  from  Gen esee  (Mr.  TAGGART) 
who  h..d  lead  an  ailicle  which  he  pK.po-eu  as  a 
suh^tituie.  He  (Mr.  J.)  hoped  it  would  oe  print- 
ed, and  all  other-  of  ihe  ki:id  it  tlieie  were  lotiy 
of  i  hem,  that  we  might  see  what  they  were.  He 
pusumed  thai  no  two  would  he  alike;  and  it 
would  serve  to  convince  the  delegates  oi  the  ne- 
ces-iity  ot  cultivating  thai  spirit  of  concession  to 
vvhich  he  had  relriieii  —  a  spirit  to  which  ue  were 
indebted  for  the  !<  deral  constitution,  and  which 
he  deeded  it  a  public  du:y  to  chensh.  It  v\  as 
impossible,  at  a  casual  re.iding  by  Ihe  gentleman 
(Mr.  T.)  in  his  place  to  grasp  the  oUlJiue  of  lus 
plan,  much  less  the  details.  He  could  retain  in 


571 


IMS  mmd  only  ihe   prominent    lectures,   ami    with 
the  unJeistanding  he  had  ol  it,  would  endeavor  to 

to  the  honorable  gentleman  himself  that  the 
report  ol  the  committee  attained  the  same  objects 
and  at  a  belter  way  The  gentleman  Imrn  ' 

.:.tkes  his  district  judges  local,  while  the  su- 
preme judges  of  the  committee  dojngsimilar  duties, 
are  ambulatory;  the  former  are  to  hold  courts  nt 
nisiprius  and  sit  inb.ink  only  in  their  own  dis- 
tricts— the  Litter  throughovjt  the  State.  By  his 
|il,m  the  judges  of  the  several  district  courts 
would  be  strangers  to  e,.ch  other;  their  juiisdic- 
tion  was  confined  to  their  own  districts;  '.hey  had 
no  more  power  in,  or  connection  with  the  olhei 
puts  of  the  State  than  with  Massachusetts  or 
NeA'  Jersey.  A  suitor  in  one  district  prosecuting 
a  resident  of  another  would  he  obliged  to  go  into 
the  latter  to  commence  his  suit,  the  same  as  into 
a  foreign  State.  By  the  plan  ot  the  committee. 
the  judges  would  (eel  and  know  ItiaLJJb&y  were 
judges  for  the  wh  ;-:r  prongs  would 

run  int>"TvTn7~et5uriry.  A  judge  in  Suffolk  could 
hold  a  circuit  or  sit  in  hank  in  Erie;  or  a  judge 
i.i  Clinton  could  do  the  same  in  Richmond.  Each 
would  go  ovrry  wheie,  exchange  duties  with  eve- 
tyjuuiy.  They  would  commix  and  commingle, 
and  be  kept  bright  and  but  niched,  so  to  sneak,  by 
rubbing  themselves  against  earn  other.  In  this 
court,  separate,  bur  not  divided  ;  local,  yel  every 
where  ;  one  in  eight,  and  eight  in  one,  he  (Mr  J.) 
Conceived  there  would  be  great  advantage  over 
that  of  the  antagonist  plan.  He  would  undoubt- 
edly prefer  if  it  were  possible,  to  have  hut 
one  bench;  but  that  was  deemed,  and  by  the 
gentleman  from  Genesee  conceded  to  be  im» 
possible.  No  number  of  judges  sitting  togeth- 
er c.mld  do  tiie  business  of  the  State.  There 
must  he  »  multiplication  of  working  tribunals. — 
His  (Mr.  T/s)  pTairpToTrosed  a  Supreme  Court  of 
eight  judge?  with  appellate  jurisdiction  only,  this 
the  coinMin  ,•  had  provided  for  in  a  Court  of  Ap- 
peals, of  the  same  number  of  judges.  His  plan 
proposed  to  draw  all  the  judges  of  the  court  of 
last  resort  from  his  four  local  supreme  courts,  or 
«LS-  lie  has  denominated  them  district  courts. — 
These  judges  having  local,  and  restricted  territo- 
rial jurisdiction  as  already  stated.  The  commit- 
tee propose  to  draw  eight  judges  froin"T?l 
prerne  Court,  one  from  each  of' their  eight  dis- 
tricts, all  having  equal  poweis  jurisdiction  and 
authority  throughout  'OTe-""State  as  also  stated. — 
Four  of  whom  should  sitTfouTtime  to  time  and  in  j 
rotation  in  the  Court  ot' Appeals,  and  to  elect  four  j 
more  by  general  ticket.  The  superiority  of  the  | 
latter  over  the  former  he  conceived  to  be,  first,  j 
that  the  four  justices  ofThe-Supronfre-Court  would  | 
in  every  instance  have  held  courts  and  become  j 

i.r  jtvith  the  course  oTTJusmess  throughout , 
the  >&i£e.  They  would  have  thus  become  famil- 
i  irized  with  the  intricacies  of  commercial  law  in 
the  metropolis,  as  well  as  with  the  less  diversi- 
fied and  intricate  portions  of  the  law  applicable 
to  the  agricultural  and  manufacturing  districts.— 
They  would  have  mingled  more  and  have  been 

hi  in  more  direct  contact  and  collision  with 
those  great  minds  which  he  trusted  to  see  adorn  the 
Bench.  They  would  be  less  provincial  in  their 
notions,  less  circumscribed  in  the  sphere  of  their 
usefulness  and  means  of  knowledge,  and  more  fit- 
ted to  the  discharge  of  their  high  duties  Sec- 


ond, that  the  four  Judges  elected  would  come 
rnoie  directly  from  the  people,  a:-d  fe<-[  more  di- 
rectly their  responsibility  to  them.  They  would 
imbibe  and  retain  more  of  the  great  general  prin- 
ciples ot  moral  justice;  of  what  might  be  called 
the  impulses  of  natural  equity  ;  ?uch  as  it.  had  of. 
ren  been  remarked  would  "knock  off  the  rough 
coiners  of  the  common  law  and  loosen  the  fetters 
of  artificial  and  technical  equity."  Inflexible 
rules  would  be  brought  by  a  species  of  m. definable 
neces>ity,fo  blend  and  harmonize  with  the  discre- 
tion of  enlightened  conscience.  It  would  in  that 
partake  somewhat  of  the  character  of  the  former 
court,  which,  though  considered  an  anomaly  by  all, 
had,  home  how  or  other,  most  generally  contrived 
to  do  justice  without  violating  law,  and  had,  until 
mischiefs  had  latterly  ciept  in,  given  general  satis, 
faction  to  the  community.  By  the  plan  of  the 
gentleman  from  Genesee,  (Mr.  TAGGAKT)  there, 
would  be  but  four  districts,  instead  of  eia,ht.  It 
there  was  any  thing  in  bringing  the  courts  nearer 
to  the  people,  in  that  respect  it  was  less  desirable. 
The  convenience  of  suitors  arid  the  bar  would  be 
less  promoted;  and  although  the  profession  of  the 
law  had  become  apparently  odious  to  a  certain 
class,  and  even  to  some  who  were  nominally  mem- 
bers of  the  bar,  (lawyers  upon  parchment,  bur 
demagogues  among  the  people)  he  would  say  that 
their  convenience  must  be  consulted  despite  the 
groveling  prejudices  alluded  fo  or  the  community 
must  suffer.  It  could  not  be  expected  that  coun- 
sel would  travel  one  hundred  and  fifty  miles  to 
argue  a  client's  cause,  without  drawing  from  that 
client's  pocket  the  additional  expense.  By  the 
report  of  the  committee,  if  adopted,  the  legisla- 
ture shall  provide  that  so  many  courts  in  Bank 
shall  be  established  in  each  district,  as  will  be 
sufficient  to  do  all  the  business  with  promptitude. 
This  cures  the  great  mischief  of  the  present  or- 
ganization; it  saves  as  well  the  delays  as  the  vex- 
atious and  ruinous  expense  of  traveling  from  Suf- 
folk, and  all  the  distant  counties  to  Rochester, 
Utica  and  other  places  three  or  four  times  a  year. 
and  after  waiting  for  weeks  to  watch  the  tardy  ad- 
vance upon  a  calendar  loaded  down  with  700  to 
1000  causes,  traveling  back  again,  with  no  senti- 
ment of  respect  for  the  judiciary  establishment. 
No  results  except  those  of  a  bootless  expense  of 
time  and  money.  In  this  regard,  he  (Mr.  J.) 
would  submit  the  fact  that  superior  advantages 
were  not  to  be  found  on  the  side  of  the  honora- 
ble gentleman's  proposition.  That  gentleman  by 
way  of  illustrating  the  inconvenience  of  the 
majority  report,  had  supposed  himself  in  the 
course  of  his  extensive  and  useful  practice  to  have 
in  his  hands  three  causes  all  ready  for  argu- 
ment, and  noticed  for  the  samo  time — one 
in  his  own  district,  one  in  Albany,  and  one  in 
New- York.  How  could  he  attend  to  all  ?  This 
certainly  would  present  a  case  of  difficulty  to 
himself  and^disadvantage  to  his  client.  But  he  (Mr. 
J.)  would  suppose  the  same  gentleman  had  one 
cause  at  a  circuit  in  Buffalo,  one  in  Batavia  and 
one  in  Rochester,  all  ready  for  trial,  and  no- 
ticed for  the  same  day  (a  case  equally  sup- 
posable  upon  his  own  plan  and  in  Ins  own 
district,)  what  should  he  do?  Why,  but  one 
remedy  could  be  applied,  and  that  would  extend 
to  both  hypotheses.  He  must  put  two  of  his 
briefs  into  other  h-md?.  It  ww,  eaid  Mr.  J.,  im- 


572 


possible  to  adopt  any  system  that  would  be  at 
all  times  entirely  convenient  to  all  persons,  and 
any  one  who  was  so  sanguine  as  to  expect  it,  was 
doomed  to  disappointment.  Could  all  the  courts 
of  law  and  equity,  for  the  trial  ot  issues  and  trials 
in  Bane,  be  consolidated  into  one,  so  that  one 
cause,  and  only  one,  in  the  whole  State  could  be 
on  trial  at  once,  then  and  only  then  could  the 
gentleman  secure  himself  against  conflicting  en- 
gagements. That  is  impossible  !  [Mr.  BROWN 
here  reminded  Mr.  JORDAN  that  he  proposed  in 
committee,  and  that  it  was  practicable  for  the  le- 
gislature so  to  arrange  it,  as  that  no  two  Courts  in 
the  State  should  be  sitting  in  Bane  at  the  same 
time.]  True,  said  Mr.  J.,  if  there  were  four 
terms  in  Bane  in  each  district  in  a  year,  there 
would  be  but  thirty  two  in  the  whole,  and  a  week 
lor  each,  or  32  weeks,  would  probably  upon  an 
average  dispose  of  all  the  business.  Now, 
to  conclude  upon  this  topic  he  would  again 
bespeak  for  the  judiciary  committee  the  favorable 
consideration  of  the  delegates.  He  would  (if  he 
could  do  it,  without  speaking  of  himself)  say,  of 
his  colleagues  they  had  the  confidence  of  the  peo- 
ple, they  had  been  selected  by  the  officer  who  so 
ably  presides  over  our  deliberations  for  their  ex- 
perience and  candor.  Without  individual  ends 
to  promote,  or  selfish  feelings  to  gratify,  they 
had  devoted  themselves  to  the  subject,  arid  the 
report  before  you  is  the  best  they  could  produce. 
It  is  true  four  of  the  number  could  not  yield  their 
preferences  for  other  plans,  but  with  the  ample 
discussion  it  had  received  in  the  committee  and 
from  the  concurrence  of  a  majority  there  could 
not  be  imminent  danger  of  committing  any  fatal 
or  serious  error  by  adopting  it.  It  certainly  had 
a  decided  advantage  over  those  plans  and  sugges- 

A"  ^1.  '  _  1  J    l_  *      _       x»  i  jt>     ) 


be  so  constructed  as,  with\  little  aid  from  the  le- 
gislature and  aboard  of  codification,  (a  project 
now  on  foot,)  to  necessarily  lead  to  it.  The  rea- 
sons assigned  were  the  great  delay  and  expense, 
and  the  follies  and  fictions  of  the  proceedings  in 
the  courts  of  common  law.  '  Nothing  was  said 
against  the  proceedings  in  the  Court  of  Chancery; 
on  the  contrary,  it  was  inferable  from  his  remarks 
that  he  considered  that  court  as  one  which  had 
given  entire  satisfaction ;  as  a  very  harmless, 
cheap,  efficacious  and  simple  machine ;  and  it 
certainly  fell  from  his  lips  that  the  course  of  pro- 
ceedings of  that  court  was  that  most  agreeable  to 
his  mind,  and  one  which  he  would  incline  to 
adopt  for  the  new-born  court  which  his  imagina- 
tion had  conceived.  Was  there,  he  would  ask, 
any  other  gentleman,  who  had  witnessed  the  ope- 
ration of  our  chancery  system,  prepared  to  say 
that  he  would  prefer  the  mode  of  procedure  to 
the  plain,  settled,  direct  (though  sometimes  fic- 
titious, and  often  unnecessarily  cumbrous)  reme- 
dies of  the  common  law,  in  ordinary  cases  ? — 
With  that  individual  he  should  entirely  disagree. 
Although  the  senior  of  the  honorable  gentle- 
man from  New-York  (Mr.  O'COIVOR)  in  years, 


would    not    pretend 
practical    experience 


to  the  same  amount 
and  accuracy  of  ob- 
servation ;  yet  he  had  seen  enough  to  con- 
vince him  that  if  the  one  or  the  other  must 
fall,  he  would  cling  to  the  common  law ;  it  was 
a  science  of  great  exactness,  its  remedies  were 
bounded  by  right  lines,  it  did  not  and  could  not 
follow  the  zig  zag,  crooked  and  searching  tracks 
of  the  Court  of  Chancery,  but  so  far  as  its  rem- 
edies extended  they  were  direct  and  perfect.  He 
who  sued  for  justice  there  could  march  straight 
forward  to  her  altar  and  receive  from  the  hands 


tions  which  sprung  up  around  him,  the  crude  oil-  |  of  her  priest  that  measure  to  which  he  was  en- 
spring  of  individual  minds,  who  could  not  (howev-  j  titled.  The  systems  of  equity  were  adopted  from 
erable)  have  had  much  opportunity  for  reflection,  ipecessity;  and  nothing  but  necessity  would  drive 

jany  sensible  man  into  that  forum — a  suit  at  law 
Sv-cis  no  mystery — every  body  could  understand  it 
r'sufficiently,  and  calculate  with  proximate  cer- 


Yhe  gentleman    Iroui   JNc-vv  Yotk  (ivji.  O'L'ONOR) 

had    started  doctrines    which  he    teceived    with 

apprehension  and  alarm.     He  (Mr.  Q'C.)  had,  if  he 

was  rightly  understood,  advocat 

oi  what  uiu«t  1)0  considered  not  only  a  great  fun-  j  lieus  of  the  court  o    cancery 

<lamenial  innovation,  (under  the  name  ut  reform)  !  darkness  and  mystery,   and  his   clients  generally 

but  which  siopned  ai  nothing  short  of  the  entire  j  when  informed  that  no  adequate  remedy   existed 

overthrow  of  toe  common  law—  a  system  -A  inch,  \  elsewhere,    would    shrug    their    shoulders  and 


ed  fhe  introduction    tainty  its   expenses  audits   delays,   but  the  pur- 
t  only  a    reat  fun-  j  lieus  of  the  court  of  chancery  were  shrouded  in 


since  our  fir,-,!,  existence  as  a  people,  hud  rous'i 
luted  the  law  ot  the  iand — a  system  derived  from 
our  mother  country,  venerable  for  its  an'iquity, 
aiid  admirable  tor  its  wisdom,  and  its  adaptation 
to  the  condition  of  a  free  people — not  without  it* 
faults,  (particularly  in  its  s-\<i<:Uis  ot  pleading  and 


shrink  back  as  from  the  horrors  of  annihilation. 
Much  of  this  it  was  true,  arose  from  the  manner 
in  which  justice  had  been  administered  in  that 
forum  ;  much  simplification,  much  reform,  in 
that  department  might  doubtlesss  be  attained,  and 
he  trusted  would  be,  in  whatever  court  its  pow- 


praciice,  :»nd  A'hieh  Mr.  J.  would  cordially  unite  j  ers  might  be  vested,  though  in  its  best  estate  if 
in  reforming1  but  u.ore  i*ul;less,  he  would  ven-  the  one  system  or  the  other  must  ^^ro  by  the  board 
ture  to  say,  than  any  other  single  system  on  the  he  would  take  leave  of  it  forever  and  take 
globe.  He  would  like  to  know  whether  ha  the  hazard  of  moulding  the  remedies  of  the 
had  understood  the' gentleman  (ruin  New-York  courts  of  law  so  as  to  attain  the  ends  of  justice. 
»r<ghi;  he  would  not  descvrid  to  quibble  or  de-i"Ne  had  hoped  however  to  see  both  systems  pre- 
signtdly  uridei.-laiid  any  thing  from  language Uerved,  for  with  the  reforms  they  were  suscepti- 
utteied  in  dr-hue,  which  it  was  not  intended  to  Ible  61,  he  believed  together,  side  by  side,  they 
convt-y?  £>;d  he  intend  lo  be  undei stood  •!«  (ii-sir-  formed  'the  most  perfect  shield  against  fraud, 


It)  blend  and  amalgamate  our  entire  systems  oi 
law  and  equity,  so  that  no  distinct  tiace  ut  either 
should  be  left"?  Did  he  intend,  us  he  (Mr.  J.)  had 
understood  him  to  intimate  that  lie  desired  to  see 
the  principles  and  mode  of  procedure  of  the  civil 
law  adopted  among  us — that  if  the  Constitution 
tVr-3  net  50  framod  in  it«  terms,  it  should  ar  leas!: 


oppression   and 
ty  could  devise 


injustice  that  human   ingenui- 
Iri  this,  he  was   sorry  to  differ 


so  radically  with  his  friend  from  New  York,  and 
he  could  account,  for  it  upon  no  other  principle 
but  his  yearning  after  the  beauties  and  simplicity 
of  the  civil  law.  The  honorable  delegate  from 
Kincs,  (Mr.  SWACKHAMER)  had  talked  much 


573 


I 


ot  codification  and  of  writing  out  the  whole  body 
of  the  law,  in  so  plain,  brief  and  simple  a  man- 
ner, that  every  man  could  turn  to  it  and  know 
precisely  what  were  his  rights  and  duties  in  any 
case  that  might  arise.  He,  Mr.  J.,  would  cer- 
tainly be  very  much  gratified  to  see'  this  work 
performed,  and  he,  for  the  sake  of  the  experiment 
would  respectfully  suggest  to  some  future  legis- 
lature to  appoint 'that  gentleman  a  sole  board  of 
revision ;  he  was  sure  it  could  not  be  entrusted  to 
abler  hands — to  any  who  would  with  more  merited 
contempt  cast  asid'e  the  jargon  and  technicalities 
of  all  existing  systems ;  and  by  the  lights  of  his 
own  vigorous  intellect,  compile  the  "whole  du- 
ties of  man"  in  one  intelligible  little  book,  which 
he  supposed  the  gentleman  might  think  of  accom- 
plishing in  a  volume  the  size  of  the  American  Al- 
manac. He  was  sure  that  any  gentleman  who 
should  contrive  so  labor  saving  a  machine,  would 
exhibit  greater  ingenuity  than  the  yankee  who 
invented  "  wooden  nutmegs"  or  any  other  article 
of  modern  commerce  for  which  a  certain  class  of 
the  enterprising  population  of  New  England  are 
so  celebrated  at  home  and  abroad ;  he  would  de- 
serve much  of  his  country.  But  to  be  serious,  he 
(Mr.  J.)  would  desire  to  suggest  to  gentlemen 
who  thought  it  so  easy  a  matter  to  simplify  the 
laws  of  a  tree  and  commercial  people,  that  they 
would  find  it  a  much  more  difficult  task  than  they 
anticipated.  The  civil  law  had  been  referred  to 
as  a  model ;  the  civil  law  which  sprung  up  on 
the  banks  of  the  Tiber,  had  more  than  two  thou- 
sand years  ago  become  an  unwieldly  fabric  ;  at- 
ter  struggling  through  the  vicissitudes  of  ages,  it 
was  finally  in  the  beginning  of  the  6th  centu- 
ry, under  the  order  of  the  Emperor  Justinian 
embodied  by  Tribonian  into  code  ;  not  with 
the  ease  and  facility  however,  and  in  the 
compact  and  portable  form  which  seem  to 
invite  an  experiment  here.  We  are  informed 
by  historians  that  the  civil  law  was  at  that 
time  found  in  two  thousand  books  and  three 
millions  of  verses  ;  and  the  digest  when  com- 
pleted occupied  forty  volumes, — [Mr.  SIMMONS  : 
fifty  ! !]  My  iriend,  (said  Mr.  J.)  who  is  a  much 
better  antiquarian  than  myself  informs  me  it  was 
fifty  volumes.  Yes,  sir,  and  170  years  labor  were 
allowed  for  the  accomplishment ;  ten  years  each 
to  the  principal  compiler  and  his  sixteen  col- 
leagues. It  was  accomplished  in  less  time  it  is 
true,  but  it  was  done  in  so  careless  a  manner,  that 
although  the  Emperor  had  by  an  imperial  edict 
forbidden  any  commentary  upon  it,  it  was  but 
comparatively  a  few  years  before  something  like 
a  body  of  statute  laws  called  novels  was  enacted  to 
remedy  its  defects,and  commentary  upon  commen- 
tary was  writen  lor  its  interpretation,  until  books 
enough  were  produced  to  load  several  camels. 
The  civil  law  was  carried  with  theRoman  arms  into 
Britain  about  the  commencement  of  the  Christian 
era  ;  on  the  continent  it  was  afterwards  trodden 
down  by  the  barbarians  of  theNorth  when  theWes- 
tern  Empire  fell,  and  was  heard  of  no  more  until  in 
the  receding  darkness  of  the  middle  ages,  it  was 
recovered  from  its  oblivion  and  adopted  by  the 
Nations  of  modern  Europe  which  rose  on  the  ru- 
ins of  the  Empire.  I  profess  but  a  very  limited 
knowledge  of  the  civil  law,  but  it  is  easy  to  im- 
agine that  an  imperial  code  (somewhat  developed 
it  is  true  in  the  more  free  ages  of  Rome)  but 


moulded  at  last  by  an  imperial  hand,  should  be 
better  adapted  to  despotic  countries,  than  to  the 
bold  spirit  of  independence,  the  rough  and  hardy 
freedom  of  our  Anglo-Saxon  ancestors.  When 
they  invaded  and  subjugated  Britain  they  brought 
with  them  their  own  institutions — the  germs  of  the 
common  law  as  more  congenial  with  liberty.  The 
two  systems  maintained  an  arduous  struggle  for 
the  ascendancy  in  the  hands  of  the  common  law- 
yers on  the  one  side  and  the  civilians  on  the  other. 
Many  principles  of  the  civil  law  were  ultimately 
incorporated  with  and  now  form  a  part  of  the  body 
of  the  common  law  ;  it  is  from  that  c  de  we  have 
borrowed  our  systems  of  equity  and  admiralty  ju- 
risdiction. The  trial  by  jury  is  unknown  to  the 
civil  law,  and  are  we  prepared  to  give  up  that 
boasted  and  truly  valuable  institution — the  bul- 
wark of  civil  liberty.  We  are  informed  by 
the  gentleman  from  New  York  (Mr.  O'Coiv- 
OR)  that  in  Scotland  and  Louisiana  where  the 
civil  law  prevails,  the  trial  by  jury  exists  in  all 
its  vigor.  Be  that  so,  it  is  an  improvement  of  the 
system,  but  no  part  of  the  system  itself.  I  hope, 
said  (Mr.  J.)  we  are  not  prepared  to  lay  violent 
hands  upon  the  common  law  or  hold  out  an  invi- 
tation to  the  legislature  to  do  so — we  have  had  de- 
tailed to  us  by  way  of  anecdote,  or  illustration  so 
called,  glowing  instances  of  its  oppression  and 
ruinous  operation.  But  the  frauds  of  knaves,  and 
the  ignorance  of  fools,  which  generally  lie  at  the 
bottom  of  such  cases,  are  not  chargeable  to  the 
common  law.  He  protested  against  it  as  an  un- 
merited abuse,  an  unfounded  aspersion  upon  the 
wisdom  of  our  chivalrous  and  (in  later  times) 
enlightened  progenitors.  The  wisest  systems  on 
earth  are  liable  to  abuse,  and  are  constantly  abu- 
sed. He  would  say  to  his  brethren  of  the  legal 
profession,  let  us  unite  in  an  honest  effort,  to  re- 
move all  excresences,  and  reform  all  abuses. — 
To  the  laymen  (adopting  a  figure  borrowed 
from  the  church)  he  would  say,  it  was  not 
now  a  time  to  have  their  prejudices  imflamed 
by  the  exaggerated  history  of  extreme  cases  ; 
and  he  hoptu  no  lurther  efturt  would  be  made  m 
that  direction — or  if  made  that  it  would  prove 
abortive.  The  pleading  both  in  suits  at  Law  and 
equity  might  be  divested  of  much  of  their  redun- 
dant verbiage.  We  had  fallen  into  that  error  by 
adopting  English  forms,  originally  the  oiispung  of 
mure  barbarous  ages.  Their  ancient  statutes  and 
systems  of  conveyancing,  as  well  as  the  forms  of 
i  heir  pleadings,  had  run  into  absurd  extravagancies 
by  piling  together  in  contused  masses  all  the  near- 
ly synonymous  words  and  phrases  will)  which  our 
language  abounds,  serving  only  to  confound  the 
most  simple  idea,  which  could  often  have  been 
expressed  in  a  monosyllable.  Neither  the  En- 
glish nor  the  American  lawyer  had  endeavored  to 
correct  the  error,  nor  would  they  be  likely  lo,  so 
long  as  writing  by  the  month,  and  receiving  pay  by 
the  folio,  were  countenanced  by  the  courts,  and 
permitted  by  the  Legislature.  A  common  declara- 
tion at  law  or  bill  in  chancery  could  be  penned  in 
half  the  words  commonly  used,  and  he  hoped  soon 
to  see  a  board  of  able  men  sit  down  to  the  task  of 
reducing  them  to  the  standard  of  plain  English  and 
common  sense.  Under  such  a  process,  he  would 
venture  to  say  that  our  whole  system  of  law  and 
equity  pleading,  and  procedure  would  come  out  as 
perlect  a  system  as  man  could  invent. 


574 


Mr.  KTRKLAND  :— The  subject  now  under 
consideration,  Mr.  CHAIRMAN,  is,  in  my  judg- 
ment, that  which  more  than  any  other  led  to  the 
assembling  of  this  Convention  and  winch  cannot 
rank  in  importance  below  any,  on  which  we^have 
been,  or  shall  be  called  to  deliberate.  It  has  for 
many  weeks  received  the  patient  and  careful  and 
anxious  attention  of  the  committee  to  which  it 
was  entrusted,  and  as  one  of  that  committee  I 
have  devoted  to  it  whatever  of  energy  and  indus- 
try I  possessed,  sensibly  feeling  as  I  did  and  now 
do  that  the  great  and  diversified  interests  involv- 
ed, demanded  for  it  the  fullest  investigation  and 
the  most  mature  and  serious  deliberation.  The 
result  of  these  labors  and  reflections  is  that  great 
and  essential  changes  in  the  judiciary  system  of 
this  State  are  imperiously  required  by  the  public 
good.  Such  changes  have  therefore  been  propo- 
sed both  in  the  majority  and  minority  reports  pre- 
sented to  the  Convention.  In  the  necessity  and! 
propriety  of  most  of  these  reforms,  the  different 
members  of  the  committee  have  unanimously  con- 
curred, and  as  to  the  remainder  their  views  were 
nearly  unanimous. 

Itcannot  be  amis,  sir,  to  take  a  cursory  view  oi 
some  of  the  evils  of  the  existing  organization.- — 
Such  a  view  may  lead  to  a  proper  conclusion  as 
to  the  remedy  to  be  applied. 

In  the  first  place,  it  is  a  notorious  fact  that  the' 
delays  of  business  in  the  court  of  chancery  and  the 
supreme  court  are  now  so  great  as  to  amount  to  a 
denial  of  justice,  and  to  lead  to  all  the  ruinous 
consequences,  which  such  a  state  of  things  is  al- 
ways sure  to  bring  in  its  train ;  excessive  and 
burdensome  expenses;  the  total  loss  of  just  claims; 
and  the  actual  ruin  and  insolvency  of  suitors  in 
moderate  circumstances,  whose  whole  estates  are 
not  unfrequently  dependent  on  the  result  of  a  lit- 
igation now  thus  protracted  and  in  one  of  those 
courts  at  least,  almost  interminable. 

For  some  years  past  the  number  of  causes  on  the 
calendar  of  the  supreme  court  at  each  term  has 
varied  from  seven  hundred  to  nine  hundred;  and 
generally  not  over  eighty  or  ninety  have  been 
regularly  reached  and  argued.  In  the  court  of 
chancery  the  condition  of  business  is  vastly 
worse;  I  have  attended  the  terms  of  that  court 
for  years  in  succession  for  the  purpose  of  arguing 
causes,  the  issues  in  which  were  joined  six  and 
eight  years  previously;  and  up  to  the  very  last 
term  of  that  court,  I  have  thus  attended  in  vain. 
Indeed,  I  heard  the  chancellor,  within  a  year  past, 
state  to  counsel,  who  desired  to  place  a  cause 
on  the  chancery  calendar,  that  the  success  of  his 
application  would  be  of  no  avail  to  him,  for  were 
it  granted,  he  would  not  reach  his  cause  in  ten 
years.  He  might  well -have  added  that  in  the 
present  state  of  business  in  that  tribunal,  it  never 
would  be  reached.  In  thus  alluding  to  the  ru- 
inous delays  in  these  courts,  I  make  not  the 
slightest  imputation  on  the  learned  and  able 
men,  who  now  occupy  the  benches  of  those 
courts:  on  the  contrary  I  can  bear  personal  tes- 
timony to  the  immense  amount  of  labor  perform- 
ed by  each  of  them;  the  fault  is  not  in  them,  but 
in  the  system. 

Again,  sir,  great  and  just  complaints  have  been 
made  and  great  evils  and  hardships  endured  from 
the  centralization  of  the  business  of  those  courts. 
It  is  known  that  the  general  terms  of  the  court 


of  chancery  are  held  at  ^nly  two  places  in  the 
State  and  those  of  the  supreme  court  at  four, 
while  the  special  terms  of  both  courts  are  held 
exclusively  (with  the  exception  of  the  Chancel- 
lors summer  terms)  at  the  Capitol.  The  most 
trilling  motion  in  either  of  these  courts  in  a  cause, 
the  parties  and  counsel  in  which  reside  in  the 
remotest  parts  of  the  State,  in  Chautauque,  St. 
Lawrence  or  Suffolk,  must  be  made  in  the  city 
of  Albany;  the  inevitable  effect  .of  these  arrange- 
ments is  to  cause  great  and  needless  expense  to 
suitors,  gross  injustice  to  counsel  and  attorneys, 
not  residing  at  the  favored  places  where  the  terms 
are  held  and  to  create  monopolies  of  business 
detrimental  alike  to  the  people  and  to  the  pe- 
cuniary interest  arid  the  professional  character  of 
the  great  mass  of  the  members  of  the  bar  through- 
out the  State.  In  truth,  sir,  these  courts  have 
thus  become  almost  sealed  tribunals  to  all  who 
are  so  unfortunate  as  to  reside  at  any  considerable 
distance  from  the  Capitol  and  the  other  two  or 
three  places  where  the  terms  are  held. 

Asain,  sn,  experience  has  luily  ueinonstrated 
the  impolicy  and  injury  ot  separating  the  duty  of 
hearing  and  deciding  from  that  of  1  ry  ing  causes  ;  in 
other  words,  of  devolving  the  term  duties  on  one 
and  the  circuit  duties  on  another  class  of  judges. 
The  effect  ot  such  a  system  is  to  diminish  respect 
for  and  confidence  in  the  decisions  of  the  jud^e 
presiding  at  inals  and  to  increase  greatly  the  num- 
ber of  appeals  from  those  decisions— to  separate 
the  term  judges  from  the  people  and  to  prevent 
Ihemtroin  having  the  full  knowledge  of  causes, 
which  is  derived  chiefly  in  many  instances  lioin 
seeing  and  scrutinizing  the  witnesses  on  the  stand; 
and  the  tendency  of  a  long  continuance  in  a  judi- 
cial  office,  the  duties  ot  which  are  performed 
merely  in  the  study  or  on  the  bench  at  term,  is  to 
deprive  the  judicial  judgment  of  that  sound,  prac- 
tical common  sense,  obtained  from  mingling  with 
men  and  the  knowledge  of  human  natuie  thus 
acquired,  which  is  so  useful  an  ingredient  to  in- 
termingle with  the  technical  learning  _  derived 
from  books.  The  abandonment  ot  the  nisi  prius 
system  existing  prior  to  1823  has  often  been  la- 
mented, and  that  substituted  in  its  place  has  re- 
ceived  almost  universal  condemnation. 

Another  evil  of  great  magnitude  is  the  present 
mode  of  ascertaining  tacts  in  the  court  of  chancery 
by  means  of  taking  testimony  before  examiners. 
A  more  ruinously  expensive,  a  more  dilatory  and 
a  more  inefficient  and  impeitect  mode  of  taking 
testimony  could  scarcely  be  devised.  I  will  noi 
dwell  on'the  evils  of  this  system.  It  is  sufficient 
now  to  state,  by  way  of  illustration,  three  cases 
within  my  own  knowledge  as  counsel.  I  have  at 
this  time  in  my  charge  a  cause,  the  testimony  in 
which  extends  over  nearly  seven  thousand  folio- 
sixty  or  eighty  days  were  consumed  in  the  exami- 
nation of  -A  single  witness,  and  the  examiner's 
fees  as  is  known  to  an  honorable  gentleman  now 
before  me,  (Mr.  CAMPBELL,  of  Steuben)  who 
performed  in  part  the  dunes  of  examiner  in  1 
cause,  vvereliule  less  than  three  thousand  dollars. 
In  another  cause,  the  folio  were  three  thousand, 
and  the  examiner's  fees  upwards  of  twelve  hund- 
red dollars;  and  within  the  last  eighteen  months 
in  a  cause  where  1  filed  a  bill  in  behalf  of  a  poor 
and  unfortunate  wile  against  her  husband  for  a 
divorce  for  ill  treatment,  the  defence  was  so  con- 


575 


ducted  by  means  of  the  existing  s\s!em,  as  to 
(he  examiner's  fees  to  the  amount  o! '  tirclrr 
hundred  dollars  and  the;  testimony  to  three  thou- 
sand folio!  I  hazard  nothing  in  saying  that  either 
of  tin'.-  ab  >ve  causes  rmild  haw  been  Iried  ;ii)d  dis- 
:  of  by  an  intelligent  jndire  and  jury  in  Iroin 
two  to  five  da\s  and  at  a  trifling  expense.  I  am 
aware  that  al tempts  have  been  made  to  remedy 
this  evil  by  legislation,  but  they  have  proved 
abortive.  Any  system,  under  the  shelter  and  cover 
of  which  such' enormities  -can  be  perpetrated, 
ought  to  be  abolished  by  the  Constitution. 

The  attention  of  the  committee,  Mr.  Chairman, 
s  has  also  been  bestowed  on  some  other  evils.  The 
mode  of  remunerating  judicial  officers  by  fees  and 
perquisites  of  office  is  fraught  with  mischief— its 
tendency  is  corrupting,  demoralizing  and  degra- 
ding— it  has  always  the  appearance  and  some- 
times it  is  feared  the  effect  of  converting  the  ju- 
dicial functionary  into  a  vender  of  justice;  it  has 
caused  very  numerous  and  very  just  complaints. 
Again,  sir,  judicial  patronage,  the  power  of  ap- 
pointment to  office  by  the  incumbents  of  high  ju- 
dicial stations  is,  it  is  believed,  universally  repro- 
bated. It  presents  temptations  to  those  officers, 
to  which  they  should  not  be  subjected— it  expo- 
ses them  to  imputations  and  suspicions,  from 
which  they  should  be  wholly  free — it  tends  to  de- 
rogate from  the  high,  unspotted  character  they 
should  always  bear.  The  temple  of  justice  is  the 
last  place  from  which  should  be  distributed  the 
spoils  of  office.  It  is  the  unanimous  opinion  of 
the  committee,  as  I  trust  it  will  be  of  the  Con- 
vention, that  all  judicial  officers  of  the  higher 
grades  should  be  prohibited  from  the  power  of 
appointment  to  office,  and  from  receiving  any  fees 
and  perquisites  of  office. 

One  other  subject,  sir.  All  I  trust  concur  in 
the  propriety  and  the  necessity  of  the  independ- 
.ciary — but  between  judicial  inde- 
pendence and  judicial  irresponsibility,  there  is  a 
wide  and  palpable  difference.  While  I  am  a 
strenuous  advocate  for  the  former,  I  am  convinced 
lhatthe  term  of  office  of  no  judge  in  this  State 
should  be  such  as  to  relieve  him  from  that  sense 
of  responsibility  to  the  "  sovereign  power,"  which 
every  incumbent  of  office  should  feel.  I  do  not 
regard  a  term,  which  is  practically  a  term  for 
life,  as  essential  to  judicial  independence,  where- 
as I  do  regard  a  limited  term  of  suitable  duration, 
as  highly  conducive  to  a  due  respect  for  just  and 
legitimate  public  sentiment,  and  as  well  calcula- 
ted occasionally  to  remind  a  judge  that  his  power 
is  not  absolute,  and  that  elevated  as  his  position 
is,  there  is  in  this  land  a  still  higher  pow*r. — 
Judges  it  is  to  be  remembered  are  after  all  but 
men  and  subject  to  the  like  passions  and  infirmi- 
ties with  others.  The  term  ior  life  of  judges  ir 
England  was  introduced  to  protect  the  subjcc\ 
against  the  crown  and  not  for  the  sake  of  tfn 
judge.  The  committee  almost  unanimously  ar 
rived  at  the  conclusion  that  the  present  term  o 
judicial  office  should  be  changed.  1  will  hereaf 
|  ter  speak  of  what  in  my  opinion  should  be  the 
duration  of  this  term. 

The  foregoing  among  other  considerations  have 
induced  me  to  unite  with  the  committee  in  recom 
mending  the  following  material  and  important  re 
forms  and  changes  : — 

1.  The  union  of  the  duties  of  term  and  circuit  judges 


n  the  same  individuals. 

2.  The  trial  of  ca<es  in  law  and  equity   substantially  in 
lie  same  manner;  and  the  consequent  abolition  ol  the  of. 
ces  of  ma^vi  r  iiihl  r\  -minrr. 

3.  The  bringing  of  the  courts  comparatively  within  the 
icinity  of  the  suitors,  tin  ir  attoi  ni'-\  s  nnd  counsel. 

4.  The  changing  of  the  term   of  oliice  from  a  ttrm  prao 
ii'iilly  for  life  to  a  term  for  years 

;">  The  abolition  of  judicial  patronage  and  of  judicial 
•cs  :.nd  perquisites  of  office 

6.  The  union  of  the  couit  of  chancery  and  the  supreme 
ourt  in  one  tribunal. 

These  changes  are  all  material  and  some  of 
hem  doubtless  of  a  very  grave  and  vital  charac- 
er.  Among  the  latter  is  that  of  the  union  of  the 
wo  courts.  This  union,  it  is  to  be  observed,  nei- 
her  implies  nor  involves  any  abolition  of  juris- 
diction nor  any  destruction  of  equity  powers  and 
emcdies — while  it  will  be  attended,  lam  per- 
uaded,  with  many  conveniences  and  advantages. 
One  tribunal  can  be  organized  with  more  ease, 
simplicity  and  economy  than  two.  It  will  be  the 
means  of  dispensing  with  a  number  of  clerks  arid 
other  officers,  who  will  by  this  arrangement  be- 
come unnecessary ;  it  will  not  require  as  manv 
udges,  in  consequence  of  the  less  number  of 
courts  which  the  judges  will  be  obliged  to  travel 
to  and  to  hold.  If  the  tribunals  are  separately 
organized,  it  will  follow  as  a  matter  of  course 
:hat  double  sets  of  courts,  (both  bane  and  circuit) 
must  be  held  ;  one  for  the  trial  and  hearing  of 
;ases  in  equity,  and  another  for  the  trial  and  hear- 
ng  of  cases  at  law  ;  these  must  necessarily  be 
ield  at  different  times,  and  thus  the  number  of 
ourts  to  be  held  in  the  several  counties  and  dis- 
tricts will  be  much  increased ;  the  jury  burdens 
greatly  aggravated  ;  and  county  as  well  as  State 
expenses  materially  augmented.  Again,  the  pro- 
posed union  would  promote  facility,  convenience 
and  economy  in  the  dispatch  of  the  business  of 
^uitors;  their  attorneys  and  counsel  having  cases 
in  law  and  equity  could  attend  to  both  at  the 
same  court  and  at  the  same  time,  instead  of  be- 
ing compelled  to  attend  a  different  court  at  a  dif- 
ferent time ;  very  often  the  convenience  of  wit- 
nesses would  be  greatly  promoted  ;  and  frequent- 
ly the  same  party  would  have  a  case  in  law 
and  in  equity  to  be  tried  or  heard  at  the  same 
court  and  thus  great  additional  expense  be  avoided. 
Again,  sir,  if  in  the  march  of  improvement,  the 
time  should  ever  arrive,  when  the  pleadings  and 
practice — the  modes  of  procedure — in  law  and  irX 
equity  should  be  assimilated  or  made  uniform,  the 
existence  of  but  one  tribunal  would  greatly  fa 
ciliate  that  operation  ;  at  least  it  would  furnish  a 
fair  opportunity  and  means  for  the  trial  of  the  ex- 
periment. Such  a  result,  if  attainable  at  all,  must 
I  apprehend  be  the  work  of  time,  and  be  effected 
by  slow  and  gradual  steps.  It  cannot,  surely  it 
ought  not  to  be  attempted  suddenly  and  at  "  one 
leap" — for  the  present  modes  are  incorporated 
and  interwoven  with  all  our  habits  of  business, 
and  I  may  say,  almost  with  all  our  legal  notions 
arid  ideas  ;  but  1  am  far  from  supposing  such  a 
change  either  impossible  or,  as  some  have  seen 
fit  to  characterize  it,  Utopian  and  absurd.  I  am 
not  at  present  the  advocate  of  such  a  measure, 
e.t,  sir,  it  would  not  to  my  mind  be  eviden 
tial  of  fanaticism  or  insanity,  or  of  tne  influence 
of  the  "  pestilential  breath  of  the  demagogue," 
(as  a  worthy  friend  says  in  a  letter  to  me,)  if  any 
gentleman  should  advocate  its  slow  and  gradual 


576 


and  ultimate  introduction.  I  would  refer  all, 
who  entertain  the  sentiments  of  the  friend  to 
whom  I  allude,  to  a  most  able  paper  in  the  17th 
volume  of  the  American  Jurist  (p.  253) ;  and  af- 
ter a  candid  and  careful  perusal  of  that  argument, 
they  will  be  loth,  I  apprehend,to  bring  the  charges 
of  fanaticism  and  of  folly  against  those  who  differ 
from  them  in  opinion.  The  legislature  now  has 
and  will,  without  doubt,  hereafter  retain  the  pow- 
er over  these  "  modes  of  procedure ;"  and  to  their 
wisdom  it  must  be  left  to  adopt  such  measures  in 
relation  to  them  as  the  public  interests  demand. 

It  has  been  argued  against  the  plan  of  the  union 
of  these  courts,  that  there  is  a  natural,  radical,  un- 
alterable difference.and  distinction  between  law 
and  equity,  an  irreconcilable  contrariety  and  in- 
consistency. To  such  a  doctrine  I  can  by  no 
means  assent.  It  has  no  foundation  in  truth,  and 
is  the  erroneous  conclusion  of  minds  warped  and 
contracted  by  long  continued  habits  and  prejudic- 
es, and  by  the  "set  forms  of  speech"  to  which 
they  have  invariably  been  accustomed.  It  is  said 
in  Twiss'  life  of  Lord  Eldon,  that  that  most  distin- 
guished of  English  chancellors,  repudiated  in  em- 
phatic terms  such  a  sentiment.  I  venture  to  as- 
sert, sir,  that  there  is  not  as  great  or  radical  or  es- 
sential a  difference  between  any  given  title  or 
"  equity''  law  and  ot  "  legal"  law  as  exists  be- 
tween many  of  the  different  titles  or  branches  of 
the  law  itself — as,  for  instance,  between  commer- 
cial law  and  the  law  of  contingent  remainders — 
and  between  the  law  of  libel  and  the  law  of  de- 
scents and  devises.  The  difference  between 
• « law"  and  "  equity"  is  a  difference  in  the  reme- 
dies, and  substantially  in  nothing  more.  The 
judge  who  administers '"equity4'  is  bound  by  au- 
thority alike  with  him  who  administers  "  law:" 
the  one  can  no  more  exercise  his  own  unregulated 
*«  discretion"  than  the  other.  Chancellor  Kent 
(honored  alike  in  Europe  and  America)  declared 
in  one  of  the  learned  judgments  pronounced  by 
him  as  chancellor,  that  he  had  no  right  or  power 
to  devise  or  to  make  or  unmake  the  law ;  that  his 
more  humble  duty  was  to  seek  out  and  to  find  and 
when  found,  to  follow  in  the  path  of  his  prede- 
cessors. 

It  is  alleged  that  the  same  judge  cannot  be 
qualified  to  administer  both  law  and  equity.  This, 
sir,  1  consider  a  libel  on  the  human  intellect,  and 
I  know  that  it  is  contradicted  by  every  day's  ob 
servation  and  experience.  The  numerous  able 
and  prominent  lawyers  of  the  State  practice  con- 
stantly in  both  courts  and  with  capacity  and  suc- 
cess in  each  ;  and  any  judge,  who  is  competent  to 
his  post,  should  be  and  can  and  will  be  qualified 
to  administer  the  law  in  the  one  branch  of  this 
tribunal  as  well  as  in  the  other.  Is  any  evidence 
wanted  on  this  subject  ?  I  reter  to  the  Court  of 
Errors  to  furnish  it.  What  more  learned,  able 
and  satisfactory  judgments  in  "equity"  cases  have 
ever  been  pronounced  than  by  the  judges  of  the 
supreme  court,  when  sitting  as  judges  in  that 
court  (of  Errors) :  and  on  the  other  hand,  where 
can  we  find  more  lucid,  conclusive  or  learned 
opinions  in  "  law"  cases  than  have  been  delivered 
in  that  tribunal  by  our  chancellors?  And  again, 
sir,  the  fact  is  notorious  that  members  of  that 
court,  who  were  neither  judges  nor  chancellors, 
have  on  one  day  delivered  opinions  of  unquestion 
ed  ability  in  cases  arising  at  "  law,"  and  on  the 


next,  opinions  of  equal  ability  in  cases  coming 
"rom  "  equity." 

We  have  great  and  numerous  examples  in  favor 
of  the  proposed  union.  We  find  it  in  the  United 

fates  system,  and  in  the  systems  of  more  than 

venty  of  the  individual  States,  it  has  never, 
;jj  my  knowledge,  been  a  cause  of  complaint  in 

iy  of  the  States,  that  law  and  equity  were  ad- 
ministered by  the  same  tribunal;  but  the  com. 
plaint  has  been  that  that  tribunal  had  not  suffi- 
cient equity  powers.  In  proof  of  this  assertion, 
I  refer  to  the  8th  volume  of  the  Law  Reporter, 
]p.  556]  where  will  be  found  a  statement  or  ihe 
struggle  recently  made  in  'he  Legislature  of  Mas. 
sachusetts  to  obtain  additional  chancery  powers 
for  the  supreme  court  of  that  State.  But,  sir, 
we  have  our  own  example  for  the  last  quarter  of  a 
century,  in  the  union  of  law  and  equity  powers  in 
the  circuit  judges— it  is  in  those  courts  that  a  vast 
proportion  of  all  the  original  chancery  business 
has  been  done  during  that  period,  and  I  never  yet 
heard  that  any  great  danger  or  difficulty  or  absur- 
dity had  been  produced  by  the  union.  On  the 
contrary  I  can,  from  my  own  experience,  testify 
as  to  several  of  those  "  union"  courts,  that  the 
judges  have  discharged  with  signal  and  with  equal 
ability,  and  with  entire  satisfaction  to  the  public, 
their  duties  both  as  common  law  and  as  chancery 
judges. 

On  this  subject,  Mr.  Chairman,  I  could  easily 
enlarge,  but  I  trust  that  the  views  I  have  already 
presented  will  furnish  at  least  an  "  apology"  for 
the  recommendation  of  the  union  of  these  tribu- 
nals. And  on  this  point,  I  will  only  add,  that  it  is 
a  quite  prevalent  opinion  among  many  persons, 
that  the  court  of  chancery  has  become  so  formal 
and  technical,  so  embarrassed  with  the  details  of 
practice,  and  so  encumbered  with  numberless  rules 
and  the  constructions  thereof,  that  it  is  quite  de. 
sirable  that  it  should  be  united  to  a  court  of  law  in 
order  to  liberalize  anduntrammel,  and  disenthral 
it  from  its  load  of  forms,  and  thus  enable  iito  ad- 
minister equitable  relief  with  less  regard  to  "strict 
rules'*  and  modes  of  mere  practice  and  procedure. 
The  above  changes  being  resolved  on  and  recom- 
mended, the  next  question  is  as  to  the  proper  or- 
ganization of  the  tribunal,  which  is  to  represent 
and  take  the  place  of  the  present  supreme  court 
and  court  of  chancery,  with  the  immensely  in- 
creased amount  of  business  devolved  upon  it  by 
means  of  the  alteration  in  the  mode  of  trial  in 
equity  cases.  The  first  object,  beyond  all  doubt, 
to  be  considered  and  attained  is,  such  a  system 
and  mode  of  organization  as  will  enable  the  legal 
business  of  the  state  to  be  done  without  delay, 
while  it  shall  be  done  with  economy  and  with 
judicial  ability.  To  this  main  and  great  object 
every  other  must  yield ;  and  if  consistently  with 
this,  it  is  not  possible  to  adopt  such  an  organization 
as  will  preserve  the  high  and  distinguished  po- 
sition heretofore  occupied  by  the  supreme  court 
and  court  of  chancery  as  expounders  of  the  law 
and  as  repositories  and  promulgators  of  legal 
learning,  this  glory  and  renown  must  be  sacrificed 
to  the  necessity  of  the  case  ;  and  a  substitute  for 
those  courts,  in  the  respect  to  which  I  have  just 
alluded,  must  be  provided  in  the  court  of  ap- 
peals. I  have  regarded  it  too  as  exceedingly  de- 
sirable that  the  representative  of  and  substitute 
for  those  courts  should,  if  possible,  be  a  single 


577 


court,  so  that  there  should  be  uniformity  of  de- 
cision, greater  dignity  in  the  court,  a  higher  re- 
ibr  the.  tribunal,  and  more  confidence  in  its 
judgments.  "Hut  on  the  most  mature  deliberation, 
I  am  fully  satisfied  that  a  single  court,  with  such 
advant;iL'i'S,  or  with  any  of  the  advantages  of  a 
single  court,  cannot  be  established.  It  is  to  be 
remembered  that  this  single  court  is  to  do  all  the 
business  now  done  by  the  supreme  court,  the 
court  of  chancery,  and  the  circuit  judges,  and 
much  of  that  performed  by  masters  and  examiners. 
I  have  come  to  this  conclusion  with  pain  and  re- 
gret, for  accustomed  as  I  have  been  for  years  to  a 
constant  attendance  on  those  two  courts,  highly 
esteeming  as  I  do  the  individual  members  com- 
posing them,  and  remembering  the  legal  lustre 
and  glory.,  which  have  been  shed  on  this  land,  for 
nearly  half  a  century,  by  the  ability  and  learning 
of  both  the  tribunals,  I  bid  farewell  to  them  with 
feelings  of  the  deepest  regret.  I  am  equally 
pained  by  the  reflection  that  no  single  tribunal  of 
the  same  grade  can  be  introduced  1.0  take  theif 
united  place.  But  there  is  a  consolation  in  know- 
ing that  a  court  of  appeals  can  be  so  organized  as 
to  take  their  place  as  a  repository  of  legal  learning, 
from  which  may  issue  as  learned,  able,  satisfac- 
tory judgments  and  opinions  as  those,  which  have 
heretofore  proceeded  from  the  two  courts  in  ques- 
tion. I  come  now  to  a  consideration  of  the  plan 
reported  by  a  majority  of  the  committee,  as  con- 
tained substantially  in  the  three  following  sec- 
tions of  the  article  presented  by  them  : — 

^3.  There  shall  be  a  Supreme  Court  having  the  same 
jurisdiction  in  law  and  equity,  which  the  Supreme  Court 
and  the  Court  of  Chancery  now  have,  subject  to  regulation 
bylaw. 

^  4.  The  Stateshallbe  divided  into  eight  judicial  districts, 
of  which  the  city  of  New  York  shall  be  one.  The  others 
to  be  bo  untied  by  county  lines;  and  to  be  compact  and 
equal  in  population  as  nearly  as  may  be.  There  shall  be 
four  justices  of  the  supreme  court  for  each  district,  and  as 
many  more  in  the  distiict  composed  of  the  city  of  New 
York  as  may  from  time  to  time  be  authorized  by  law,  but 
not  to  exceed  the  number  of  justices  in  the  other  districts  in 
proportion  to  their  population.  They  shall  be  classified  so 
that  one  of  the  justices  ot  ench  district  shall  go  out  of  of- 
fice at  the  end  of  (-very  two  years.  After  the  expiration 
of  their  terms  under  such  classification,  the  term  of  their 
office  shall  be  eight  years. 

§  6  Any  three  of  them  may  hold  general  terms  of  said 
court  in  any  district,  and  one  of  them  may  hold  special 
terms  and  circuit  courts,  and  preside  at  the  courts  of  oyer 
and  termiuer  in4  any  county. 

This  plan,  it  will  be  seen,  provides  for  a  single 
court  of  thirty-two  judges,  which  is  to  take  the 
place  not  only  of  the  supreme  court  and  court  of 
chancery  but  also  of  the  county  court. 

This  proposed  court  of  thirty-two  judges  pre- 
sents in  not  the  smallest  degree  the  advantages  of 
a  single  court. 

1.  Its  very  numbers  destroy  it;  composed  of 
thirty-two  persons,   it  could   never   have  the  re- 
spect, dignity,   or  confidence,   which  are  among 
the  advantages  of  a  single  tribunal. 

2.  It  is  impossible,  and  it  is  not  contemplated, 
that  all  or  any  considerable  share  of  its  members 
should  ever  assemble  together    as   a  court.     An 
anomaly  like  this   I  apprehend  is  without  a  pre- 
cedent. 

3.  A  great,  perhaps  almost  the  only  peculiar 
benefit  of  a  single  court  is  uniformity  of  deci- 
sion.    But  this  is  totally  unattainable  here,  for  the 
terms  of  the  court  are  to  be  held  by  any  three. of 
the  judges ;  they  may  and  will  be  held  Vy  differ 


ent  persons  at  different  places  at  the  same 
indeed,  many  terms  may  be  held  at  the  same  time 
in  places  remote  from  each  other.  It  is  thus  im- 
possible that  there  can  be  uniformity  of  decision 
or  anypratical  unity  in  the  court.  There  would 
be  just  as  many  appeals  from  a  court  thus  organ- 
ized as  from  eight  distinct  and  separately  organ- 
ized courts. 

What  advantages  then  does  such  a  plan  pre- 
sent ?  Not  a  solitary  one  that  I  can  discover. 

But  there  are  many  positive  disadvantages,  dif- 
ficulties and  absurdities  in  sue!)  an  organization. 

1.  If  would  be  an  arduous  task  to  keep  theww.v- 
ter-roll  of  such  a  company  and  to  designate  who 
should  be  on  duty    here  and    who  there,  at  given 
periods      The  distribuiion  of  the  terms,  cm: mis', 
and  special  tcirns  among  this  multitude   would  be 
/bund,  if  practicable  at  all,  very  difficult. 

2.  At  the  close    of  a  term  in    bane,  (he   three 
judges  who  held   it  would  by  the    very  const  ruc- 
tion of  the  system,  immediately  separate  ami  de- 
part severally  to  other  and  different  places  to  hold 
couits.       It  would  thus  be   very    difficult  if  not 
impossible  for  them  again  to  assemble  arid  have  a 
consultation  as  to  the  causes  argued  before  them, 
and  without  such  consultation,  no  cause  could  be 
properly  or  satisfactorily  decided. 

3.  After  the  trial  of  a  cause  before  one  ot  these 
ambulatory  and  ever  moving  judges,  where  would 
he  be  found  (o   settle    a  case,  bill    of  exceptions, 
&.C.,  in  the  causes  just  tried  ? 

4.  Practically,  trascouit    professing  to  be  one 
would  be    several;    it  would    be      composed  of 
many    fragments  united  by   no  common    tie,  but 
jostling,  contradictory  and  conflicting. 

These  seem  to  rne  just  and  unanswerable  ob- 
jections to  the  plan  of  the  majority  and  I  stale 
them  in  no  spirit  ot  criticism  or  c-f  fault -finding, 
but  solely  from  an  imperative  sense  of  duly.  I 
am  fully  convinced  that  these  considerations  pre- 
sent serious  and  latal  difficulties  in  the  piactical 
operation  ot  that  plan;  and  if  I  am  correct,  it 
would  be  calamitous  to  adopt  ir. 

Having  thus  as  I  think,  shown  the  impossibili- 
ty of  forming  a  single  court  without  any  reason- 
able hope  or  promise  of  success  I  am  led  lo  the 
conclusion  that  the  rnosi  sate,  simple  and  certain 
mode  is  to  establish  indepf  ndeni  courts  oi  general 
jurisdiction  in  prescribed  territorial  districts. — 
The  following  section  of  (he  article  I  had  ttie 
honor  to  report,  presents  the  outline  of  such  a 
plan : — 

Superior  Courts. 

%  4.  The  State  shall  be  divided  into  six  judicial  districts, 
to  be  denominated  the  first,  second,  third,  fourth,  lilth  and 
sixth  judicial  districts,  of  which  the  city  of  New  York 
shall  form  the  first.  There  shbll  be  a  Superior  Court  iu 
each  of  the  said  districts,  which  shall  have  jurisdiction  in 
all  matters  of  law  and%quity  within  the  Sfate,  and  such  su- 
pervisory and  other  power  over  inferior  tribunals  arid  of- 
ficers within  its  district  as  now  exists  in  the  huprenuj 
Court,  subject  to  the  appellate  jurisdiction  of  the  Supreme 
Court  of  Appeals.  It  shall  in  the  first  district  bo  composed 
ot  six  judges,  and  in  each  of  the  other  districts  of  four 
judges.  Two  of  the  judges  in  each  of  said  districts  shall 
lie  elected  by  the  qualified  electors  of  such  district,  and 
the  remainder  of  said  judges  shall  bo  appointed  by  tin; 
joint  ballot  ol  the  members  of  the  Senate  and  Assembly.-* 
The  Governor  shall  designate  OOP  of  the  judges  thus  elec- 
ted as  Chief  Justice  of  the  Court  in  the  district  for  which 
he  was  elected.  Each  ol  said  judges  shall,  during  his  cou. 
tinuauce  in  office  reside  in  the  district  for  which  he  was 
elected  or  appointed. 


47 


578 


The  courts  under  this  plan  can  be  arranged  wit 
enlire  simplicity,  harmony  and  symmetry;  th 
system  admits  of  reduction  or  extension  of  th 
judicial  force  with  perfect  facility — and  it  thm 
can  be  adapted  to  the  wants  of  any  particular  dis 
trict  without  in  any  way  intertering  with  the  har 
monyof.any  part  of  the  plan.  The  number  o 
districts  and  ot  judges  which  I  have  proposed 
may  be  too  great  or  too  small,  but  this  of  cours 
can  easily  be  increased  or  diminished.  I  have  de 
nominated  these  courts  «'  Superior  Courts"  as  be 
ing  in  harmony  with  the  name  of  "Supremi 
Court  of  Appeals,"  given  to  the  court  of  the  high 
est  grade.  They  should  be  of  general  jurisdic 
tion,  for  many  reasons  not  deemed  necessary  t< 
be  now  elated  ;  but  if  the  Convention  should  be  o 
opinion  that  their  jurisdiction  should  be  local,  thi 
alteration  could  be  made  without  in  any  degrei 
affecting  the  remainder  of  the  plan.  To  preven 
any  possible  injustice  or  inconvenience  thatmijrh 
arise  from  these  courts  having  general  jurisdir. 
lion,  adequate  provision  is  made  in  the  fifth  sec 
lion  of  the  article,  for  transfers  of  causes  from  one 
district  to  another,  and  for  changes  o(  venue,  as 
the  rights  of  suitors  may  require.  Thus,  all  caus- 
es will  be  tried,  argued,  decided,  in  such  districts 
as  the  ends  of  justice  may  demand,  irrespective  o 
the  district  in  which  the  suit  may  have  been  ori- 
ginally commenced. 

In  the  fifth  section  provision  is  also  made  for 
the  judges  of  the  superior  courts  (and  also  of  the 
court  of  appeals)  holding  terms,  circuits,  &c.  in 
any  district.  The  effect  of  this  will  be  to  equal- 
ize the  labors  of  the  judges  and  to  keep  them  all 
constantly  employed ;  and  likewise  to  furnish  aid 
to  a  district  which  may  be  overburdened  with  bu- 
siness, by  means  of  the  judicial  force  of  another 
district,  in  which  there  might  happen  at  the  time 
to  be  a  paucity  of  judicial  work.  This  will  also 
lead  to  the  farther  beneficial  results  of  the  occa- 
sional intermingling  together  of  the  judges  of  the 
different  districts,  "and  of  the  judges  appearing  in 
different  and  various  parts  of  the  State. 

In  the  eleventh  section  of  the  article,  provision 
is  made  for  the  increase  of  the  judicial  force  ac- 
cording to  the  exigencies  of  business;  and  it  is 
believed  that  the  authority  thus  given  to  the  leg- 
islature is  sufficiently  guarded  and  restricted  by 
requiring  the  vote  of  two-thirds  of  the  members 
elected.  This  is  a  provision,  the  want  of  which 
in  the  Constitution  of  1821  has  caused  great  in- 
convenience and  injury. 

It  is  to  be  observed  that  in  the  plan  I  propose 
there  is  no  more  liability  to  appeals  than  in  that 
presented  by  the  committee. 

It  may  be  objected  to  the  courts  thus  organized 
in  districts,  that  they  are  provincial .  To  a  cer- 
tain extent  this  is  true,  but  so  far  as  it  is  an  evil, 
I  deem  it  an  unavoidable  one  >  and  in  reference 
to  which  it  may  well  be  said  that  the  lesser  evil 
must  be  endured  for  the  greater  good. 

The  inconveniences  ot  any  pus-mole  conflict  ol 
decisions  in  these  "  superior  courts''  will  be  ob- 
viated by  the  court  of  appeals,  which  under  any 
system  tnat  can  possibly  be  devised,  must  have  a 
similar  duty  to  perform.  And  here  I  beg  leave 
to  say  a  word  as  to  the  organization  I  propose  ot 
the  latter  tribunal.  This  organization  will  be 
found  in  the  third  section.  It  is  manifest  that 
Ihis  must  be  a  court  of  the  greatest  interest  and 


importance,  and  I  have  endeavored  to  secure  lo  it 
that  degree  of  permanence  and  independence, 
which  the  vast  interests  commuted  to  its  decision 
would  justly  seem  to  icquire. 

I  will  add  another  word,  Sir,  in  reply  to  the 
question  which  may  perhaps  be  asked,  "  who  will 
have  the  supervisory  power  over  these  six  courts'"? 
Such  a  question  I  should  answer  by  asking,  who 
now  has  that  power  over  the  supierne  com  t  and 
the  court  of  chancery?  It  tests  nowhere  except 
in  the  integrity  and  amenability  to  public  opinion 
of  the  Judges  ot  those  courts;  and  as  to  the  Judges 
of  the  proposed  "  superior  courts,"  the  same  pow- 
er \\iilex\st.  They  are  liable  also  to  removal 
and  impeachment. 

I  present  my  plan,  Mr.  Chairman,  for  the  or- 
ganization  of  these  «'  superior  coui  ts  "  (in  connec- 
tion with  my  proposed  court  of  appeals)  with  the 
more  confidence  because  I  find  it  on  examination 
to  be  substantially  the  system  of  a  large  number 
of  our  sister  states,  Louisiana,  Missouri,  Iowa, 
(proposed  constitution)  Delaware,  Mississippi, 
Virginia,  Florida,  Connecticut,  Texas,  Alabama, 
as  I  read  their  constitution,  have  judicial  oigam- 
zations  similar  in  all  essential  particulars  to  that 
which  I  propose:  I  may  add  that  the  judiciary 
jystern  of  the  Union  is  not  materially  different. 

It  is  to  be  observed    that   the    selection   of  the 

udges  of  the  "  superior  courts"  is  not  limited    to 

he  district,  in  which  their   duties  are  to  be  per- 

brmed  ;  though  while  they  hold  their  offices  they 

are  required  lo  reside  in  that  distiict. 

The  provision  made  in  the7ih  section  for  the 
enn  of  office  of  a  judge,  elected  or  appointed  to 
fill  a  vacancy,  will  practically  answer  (he  purpos- 
es of  classification,  while  it  avoids  its  inconveni- 
ences and  also  obviates  the  probable  difficulty  of 
finding  qualified  persons  willing  to  take  the  ollice 
or  the  short  remainders  of  terms. 

Having  thus  glanced  at  tne  objections  to  the  su- 
ireme  court  as  proposed  by  the  Committee,  and 
laving  briefly  stated  some  of  my  reasons  in  suj>- 
ort  of  the  courts  I  propose  in  its  stead,  I  will 
ow,  Mr.  Chairman,  consider  for  a  moment  the 
bjections  to  another  part  of  the  report  of  the 
!ominittee  or  rather  to  the  omissions  in  that  re- 
ort.  It  omits  entirely  the  county  courts  in  any 
3*'rn  ;  or  practically  it  proposes  to  have  no  such 
ourts.  This  I  retrard,  sir,  as  a  most  ohjectiona- 
le  feature  in  the  report,  for  1  am  persuaded  that 
he  immense  and  diversified  legal  business  of  the 
:ate  cannot  be  done  without  the  aid  of  that  tribu. 
al.  I  do  not  mean  that  tribunal  as  it  now  exists  ; 
>r  I  believe  there  is  greal  ii  not  enure  unanimity 
n  the  opinion  that  those  courts  as  now  organized 
hould  be  abolished  j  but,  sir,  that  a  couiuy  court 
roperly  organized  should  be  created  I  entertain 
o  doubt  whatever.  An  immense  amount  of  bu- 
iness  civil  and  criminal  is  now  done  in  those 
ourts, — they  are  integral  parts  ot  the  county  or- 
anizations  and  are  in  a  manner  identified  with 
le  county  as  a  municipal  body.  They  are  as  it 
/ere  the  domestic  courts  of  the  people  and  by 
cans  of  these  courts,  imperfectly  as  they  may 
ow  be  arranged  and  conducted,  much  knowledge 
('.matters  ot  business,  of  law  and  of  general  af- 
tiis  has  been  diffused  through  the  community. — 
do  not  believe  that  the  people  desire  or  are  pre- 
ared  to  wit.iess  their  total  annihilation;  nor  do  I 
eem  such  a  measure  in  anywise  expedient.  In 


579 


,,iMiiioii,  sn,tt>  all  the  business  done  in  those 
courts,  strictly  pertaining  to  the  trial  and  disposi- 
tion of  civil  and  criminal  causes,  there  is  a  vast 
.<  in <unt  ot  special  power  and  duty  performed  by 
those  courts  and  their  Judges.  I  have  been  at 
the  pains  to  ascertain  the  extent  of  this  miscella- 
neous business  and!  read  the  following  statement 
as  the  result  ot  my  investigation  : — 

Miscellaneous  duties  now  performed  by  county  courts 
and  the  Jud^e-  thereof  or  some  of  them  in  addition  to  the 
trial  of  causes  and  other  business  ordinarily  done  at  court: 

1.  As  to  Committees  of  Lunntics. 

2.  As  to  disorderly  persons. 

3.  As  to  relatives  of  paupers. 

4.  As  to  ot.itt's  ol  persons  absconding  an  leaving  their 

families  chargeable,  &c. 
o.  As  to  cases  of  bastardy. 

6.  As  to  apprentices  and  servants. 

7.  As  to  admeasurement  of  dower. 
8   AS  to  restitution  of  lands. 

9.  As  to  licensing  of  ferries. 

10.  As  to  regulation  of  fisheries. 

11.  As  to  removal  ot  justices  of  the  peace. 

J-2.  As  to  trial  of  physicians  for  mal-practice,  &c. 

13.  As  to  appeals  from  Commissioners  of  highways. 

14.  As  to  removing  occupants  of  St-ite  lands. 
lf>.  As  to  absconding  and  non-resi  ient  debtors. 

16.  As  to  insolvent  and  imprisoned  debtors. 

17.  As  to  forcible  entries  and  detainers. 

18.  As  to  under  Landlord  and  Tenant's  act. 

19.  As  to  keeping  the  peace;  requiring  sureties  to  keep 

the  peace, — arresting  offenders  and  fugitives  and 

taking  examination  of  pnsoners, — taking  bail  in 

criminal  ca^-es. 
•20.  As  to  compelling  delivery  of  books,  &c.  by  an  officer 

to  his  successor. 
SI.  As  to  designdtiiig  Coroner  to  act  as  Sheriff  in  certain 

cases. 

2-2.  As  to  Wrecks.  ( 

23.  As  to  habitual  Drunkards. 
•21.  As  to  slaying  waste,  &c. 
•2.3.  As  to  inspecting  CountyjPrisons  &c. 
*nd  this  by  no  means  embraces  the  whole. 

Now,  sir,  when  all  this  local  and  miscellane- 
ous business  <s  taken  into  the  account  and  when 
you  add  to  it  tl-.e  great  mass  of  civil  and  criminal 
business  d  >ne  at  the  terms  of  the  county  courts 
even  as  at  present  organized,  and  when  besides 
;ili  this  you  consider  what  an  amount  of  addition- 
al business  is  to  be  devolved  on  the  circuit  courts 
by  the  trials  of  Chancery  causes,  it  is,  it  seems  to 
me,  an  unquesticnable  proposition  that  county 
courts  on  ;iu  efficient  and  improved  plan  must  be 
established.  They  are  indispensable  as  auxiliary 
to  tne  higher  court — thev  are  indispensible  to  the 
:(?tion  of  the  vast  variety  of  business  now 
d'lin1  bv  them  as  above  stated.  I  will  not  now  speak 
a'  length  of  the  plan  I  propose  lor  the  organiza- 
tion of  the  county  court;  it  is  I  hi  lieve  as  good  an 
one  as  can  probably  be  suggested;  and  it  has  been 
used  successfully  in  other  Stales.  There  are  in 
my  view  very  good  reasons  lor  uniting  the  offices 
<>l  First  Judge  and  Surrogate  as  I  propose;  it  will 
,-<ave  expense  to  the  counties  and  to  individuals; 
it  will  tend  to  elevate  the  character  of  both  offi- 
ces by  making  the  position  one  of  more  impor- 
tance and  responsibility,  aud  will  lead  to  the  selec- 
tion of  more  competent  persons  to  fill  the  station. 

lr  will  be  perceived,  sir,  that  rny  judicial  arti- 
cle provides  for  the  payment  ot  salaries  to  trie 
judicial  ofiic'-rs,  except  to  the  associate  Judge  of 
the  county  court. 

It  is  riot  just  that  the  whole  expense  of  any  ju- 
dicial system  should  fall  on  the  state  or  county 
'•ries:  it  should  in  part  be  defrayed  by  those 
who  use  the  tribunals  for  the  purposes  of  ttieil 
own  busings.  This  matter  can  easily  be  arranged 


by  law;  andjproper  provision  be  made,  b>  which 
suitors  and  those  doing  business  at  the  surrogates 
office  will  pay  (tor  the  use  of  the  Stale  or  county 
ty  Treasuries  as  the  case  may  be)  such  sums  as 
may  be  reasonable. 

I  will  say  a  word  as  to  the  terms  of  office  of  these 
judges.  1  propose  ten  years  for  the  judges  of  the 
two  higher  courts  and  eight  years  for  the  district 
judges  of  the  county  courts.  These  terms  I  can- 
not deem  too  long — they  should  be  of  sufficient 
length  to  induce  men  of  capacity  to  take  the  of- 
fice and  to  secure  a  reasonable  independence  in  it, 
— and  also  to  prevent  frequent  changes  of  the 
judges.  Judicial  experience  is  as  valuable  any  as 
any  other. 

In  looking  into  the  constitutions  of  the  several 
states,  I  find  that  in  twelve  states  (as  well  as  in 
the  United  States)  the  tetm  is  equivalent  to  a 
term  for  life, — in  one  state  it  is  for  fifteen  years; 
in  two  for  twelve  years  and  in  two  for  eight 
years, — thus  in  the  large  majority  of  the  states 
the  term  being  for  life  or  for  a  period  of  not  less 
than  eight  years.  I  trust  the  Convention  will 
adopt  terms  at  least  as  long  as  those  I  have  had 
the  honor  to  propose. 

I  come  next  to  the  question  of  the  mode  of  se- 
lecting these  officers — -that  is  whether  they}  shall 
be  elected  or  appointed.  On  this  subject,  though 
of  great  importance,  I  do  not  at.  present  intend  to 
dwell  at  length,  and  will  suggest  only  a  few  con- 
siderations pertaining  to  it. 

I  implicitly  believe  in  and  ardently  admire  the 
great  principle  on  which  our  glorious  institutions 
are  founded,  ''that  the  people  are  the  only  legiti- 
mate source  of  power" — it  is  a  sacred  principle 
never  to  be  violated  or  disregarded.  But  in  rny 
judgment  it  argues  no  disregard  of  or  departure 
from  this  principle,  for 'he  people  to  commit  to 
intermediate  hands  the  appointment  of  such  and 
so  many  of  their  agents  or  officers  as  they  may 
deem  can  be  more  fitly  thus  appointed — or  who  if 
thus  appointed  would  be  more  likely  to  discharge 
well  and  faithfully  the  duties  ot"  their  station.- — 
The  office  of  judge  is  of  a  peculiar  character  ;  its 
duties  are  highly  delicate  and  important— this  of- 
ficer is  often  called  on  to  decide  between  the  peo- 
ple themselves  on  one  side  and  the  individual  citi- 
zen on  the  other;  he  is  to  defend  the  weak  against 
the  strong — and  may  at  times  be  required  to  inter- 
pose himself  between  an  excited  and  pervading 
popular  sentiment  and  an  individual  who  may 
happen  to  be  its  subject. 

Ii  has  been  argued  and  with  justice  that  a  judge 
elected  bypopular  vote  would  be  exceedinglyliable 
to  entertain  prejudices  and  hostility  toward  those, 
who  may  warmly  have  opposed  his  election — and 
also  that  tempted  by  a  desire  for  re-election,  he 
might  be  induced  to  court  the  powerful  and  in- 
fluential and  to  yield  to  the  popular  caprices  or 
prejudices  or  passions  of  a  particular  period.  It 
is  said  too,  and  it  is  not  to  be  denied  that  nomina- 
tions as  now  conducted  do  not  leave  to  the  peo- 
ple that  free  and  unbiased  choice  they  should 
have,  and  it  is  notorious  that  party  conventions 
and  the  nominations  there  made  are  not  unfre- 
quently  the  fruits  of  intrigue  and  selfish  manoeu- 
vre. But  there  are  loud  complaints  against  the 
central  power  at  the  capital,  and  strong  desire? 
to  diminish  it;  and  though  I  am  not  aware  of  any 
general  call  made  by  the  people  for  the  election  of 


$80 


the  judges,  still  I  am  entirely  willing  to  have  this 
mode  tested  to  a  reasonable  extent,  so  that,  if  it 
prove  successful,  and  judicial  incumbents  thus 
selected  are  not  found  obnoxious  to  the  charges 
which  it  is  supposed  under  such  circumstances 
might  exist  against  them,  it  may  be  introduced 
more  fully  into  use.  My  deliberate  reflections 
have  led  me  to  the  result  of  proposing  to  distrib- 
ute this  power  into  three  parts  and  to  recommend 
that  the  judges  be  in  part  elected  by  the  people, 
in  part  appointed  by  the  Governor  and  Senate, 
and  in  part  by  the  joint  ballot  of  the  Senate  and 
Assembly.  This  division  would  be  calculated  to 
produce  a  salutary  rivalry  between  the  several 
powers  to  select  the  worthiest  incumbents — and 
between  the  incumbents  themselves""  a  similar, 
just  and  honorable  rivalry  would  also  be  produc- 
ed. I  may  here  remark,  that  the  mode  of  ap- 
pointment by  the  joint  ballot  of  Senate  and  As- 
sembly prevails  in  two  thirds  of  the  states,  a.  fact 
calculated  to  show  that  this  mode  is  a  generally 
approved  one. 

L  ought  further  to  add,  that?'n  no  one  State  of 
the  Union  are  the  judges  of  the  higher  tribunals 
elected  by  the  people,  except  in  Mississippi,  and 
the  example  of  that  State,   in   other  respects   at 
least,  would  hardly  be  proposed  for  imitation   in 
this.     I  may  at  a  future  time  go  more  at  large  in- 
to this  subject,  and  will  content  myself  now  with 
reminding  the  convention  that  the  other  changes 
proposed  to  be  made  as  to  the  judiciary  establish- 
ment are  great,  thorough,  and  in  some  degree  ex- 
perimental.    The  voice   of  wisdom,  of  duty,  and 
of  patriotism,  calls  on  us  to  pause,  and  calmly  de- 
liberate before  we  at  one  and  the   same  time  in- 
troduce into  full  and  exclusive  use  another  change 
still  greater  and  more  important,  hitherto  untried 
among  us,  and  among  all  our  sister  States,  with 
the  solitary  exception  just  mentioned.     At  the 
hazard  of  being  branded  on  the  one  side  with  the 
epithet   of  "  radical"  and  "  demagogue,"  and   on 
the  other  of  "  aristocrat,"  and  "  an  enemy  of  po- 
pular rights,"  I  have  put  forth   the   above  senti- 
ments deliberately,  and  by  them  I  am  willing  to  J 
abide.     It  remains   for   me  now,  Mr.  Chairman,  j 
only  to  present  very  briefly  some  of  the  benefits,  | 
in  addition  to  those  already   mentioned,   of  the 
new  organization  proposed.     1.  While  it  will  be  j 
little,  if  any  more  burthensome   to  the   State  or 
County  treasuries  than  the  present  entirely  inef- ' 
ticient  system,  it  will  be  a  vast  saving  of  expense 
to  the  people.     By  the   official   documents   pre- 
sented to  the  Convention,  it  appears  that  the  ex- 
penses of  the  present  system  are  as  follows: 
Salaries  and  expenses  paid  out  of  the  State  Trea- 
sury, (I  year) • £104,660 

Do.   out  'oi'  County  Treasuries,   (including  New 
York,!  yjear) 4-2,564 


Perquisites  and  fees  (1  yeai). 

Vice  Chancellors 

Circuit  Judges 

First  Judges 

Masters 

Examiners • 


$147,2:14 


•$5,076 

•  3/JS9 

•  22,30f> 

•  59,942 


122.264 


if  the  district  judges  of  the^Cuunty  Courts  should 
receive  $2,000  per  year,  and  the'  clerks  be  com- 
pensated in  the  most  liberal  manner  by  receiving 
on  an  average  as  much  as  is  now  paid  to  the  chan- 
cery clerks  and  registers,  even  on  'his  liberal  es- 
timate of  'compensation,  the  amount  of  annual  sa- 
laries and  charges  would  be  about  Jjjl35,u00,  thus 
falling  considerably  short  of  the  spurns  now  paid 
out  of  the  State  and  County  Treasuries,  to  say 
nothing  of  the  enormous  savings  in  fees  and  per- 
quisites. 

2.  An  immense  number  of  officers  are  dispens. 
ed  with,  as  will  be  seen  by  the  following  state- 
ments. Without  intending  in  any  manner  to  dis- 
parage any  person  in  office,  the  evils  of  numerous 
officers  is  acknowledged  by  all,  and,  at  all  events, 
it  must  be  conceded  that  the  large  ;i mount  ot  fee» 
and  perquisites  received  by  them  comes  directly 
from  the  pockets  of  the  people: 

Judges  Proposed. 

Court  of  Appeals 7 

Superior  Courts-" 25 

District  Judges 9 

County   Judges-. us 

160 
Judges  dispensed  with. 

Chancellor 1 

Vice  Chancellors 2 

Assistant  Vice  Chancellors 1 

Judges  of  Supreme  Court 3 

Circuit  Judges 8 

Judges  County  Courts,  (58  counties,  5  each). -290 

Common  Pleas,  N.  V. . • • 3 

Superior  Court,  N  Y « 3 

Recorders,  8  cities S 

Surrogates 59 

Judges  Court  Errors,  Lt.  Gov.  &  32  Senators-.  33 

411 
Other  officers  proposed. 

Clerks  Superior  Courts 6 

Clerk  Court  of  Appeals 1 

7 
Other  Officers  dispensed  with. 

Clerk  of  Court  of  Errors 1 

Chancellor's  Clerk 1 

Clerks  Supreme  Court 4 

Register  and  Assistant  Register 2 

Clerks  in  Chancery 6 

Reporters  in  Chancery  and  Supreme  Court-  --     "2 

Masters  in  Chancery 

Examiners  in  Chancery., 16» 

37-2 

And  also  the  Clerks  of  the  Superior  Court  in  New 
York  and  the  Recorder's  Courts. 
RECAPITULATION. 
Officers  proposed. 

Judges 160 

Clerks 7 


Officers  dispensed  with 

Judges  (including  Surrogates) 

Other  officers 


-411 

.27:3 


Total  annual  expense $269,488 

Now,  sir,  the  expenses  ol  the  proposed  .\vsieru, 
if  the  judges    of  the    Court  of  Appeals  a;>d  ot  the 
Superior  Courts  should  receive    the  same  salaries! 
now  paid  to  the  judges  of  the  Supreme  Court,  ar.d  i 


783 

Making  a  diminution  of  616  officers. 
3.  If  I  mistake  not  greatly,  the  plan  I  have  pro- 
posed will  produce  a  uniformity  m  the  Courts- 
throughout  the  State;  it  can  be  made  to  operate 
as  well  in  New  York  as  elsewhere ;  and  by  this 
means  we  should  have  all  our  courts,  (except 
those  of  the  very  lower  grades)  under  the  name 
system,  organized  in  the  same  manner,  governed 
by  the  same  rules.  This  result,  if  attainable, 
would  be  of  great  public  benefit  and  convenience; 
it  would  relieve  the  community  from  the  numer- 


581 


ous  anomalous  Courts  which  are  a  sort  of  patch- 
work tacked  on  to  the  judicial  system  to  meet 
particular  exegiencies. 

I  will  now,  Mr.  Chairman,  close  my  remarks 
by  saying  that  I  have  no  pride  of  opinion  as  to 
the  plan  I  Wave  presented.  After  mature  reflec- 
tion, I  believe  it  one  in  whose  pratical  workings 
entire  confidence  may  be  placed.  Whether  re- 
jected or^dopted  by  the  Convention,  my  duty  is 
done  when  I  have  presented  it. 

I  beg  to  express  my  thanks  to  the  committee 
for  the  patience  with  which  they  have  listened  to 
the  remarks  I  have  addressed  to  them.  I  find 
my  apology  for  the  length  of  time  I  have  occupied 
in' the  vast  importance  of  the  subject  under  dis- 
cussion. 

Mr.  ANGEL  said  he  regarded  it  as  a  misfortune 
that  whilst  the  delegates  were  so  unanimous  in 
opinion  that  judicial  reform  was  necessary,  they 
so  widely  differed  as  to  the  mode  of  the  reform 
required.  Nearly  every  gentleman  had  his  own 
peculiar  plan,  to  which  he  seemed  to  cling  with 
uncommon  tenacity.  In  order  to  enter  under- 
standingly  into  the  business  of  reformation  it  is 
proper,  said  Mr.  A.,  to  treat  the  question  as  the 
legislature  would  the  amendment  or  repeal  of  an 
existing  statute ;  we  should  consider  the  old  law, 
the  mischief  it  tolerates  and  the  remedy  it  de- 
mands. I  will  take  a  short  review  of  the  history 
of  our  judiciary.  Prior  to  1821  we  had  a  supreme 
court,  consisting  of  five  judges,  organized  upon 
the  nisi  prius  system,  and  a  court  of  chancery, 
consisting  of  a  single  equity  judge.  The  judges 
of  the  supreme  court  alternately  held  circuits  in 
every  county ;  they  traveled  over  the  state  and 
became  acquainted  with  the  people  ;  they  learned 
their  habits,  their  modes  of  thinking,  their  wants 
and  necessities,  and  by  such  means  they  became 
qualified  to  administer  the  law  in  a  manner  ac- 
ceptable t'j  them.  That  court  was  the  brightest 
judicial  ornament  to  be  found  in  the  world.  Its 
decisions  commanded  the  highest  respect,  n6t 
only  in  America  but  in  England.  The  reports  of 
that  court  were  good  authority  in  all  courts  where 
the  common  law  prevailed.  As  population  and 
business  increased,  the  labors  of  the  court  in- 
creased, until  it  was  found  to  be  physically  im- 
possible for  it  to  perform  the  business  required. 
The  Convention  of  1821  was  called  to  provide  a 
constitutional  remedy  for  the  evil.  Complaints 
against  the  judiciary  existed  then,  as  now ;  some 
imputed  the  then  existing  evils  to  the  judges,  and 
others  to  the  judicial  system.  The  question  em- 
barrassed the  Convention  of  1821  as  much  per- 
haps as  it  now  embarrasses  us.  That  Convention 
abolished  the  court  as  then  organized,  and  estab- 
lished our  present  judiciary  system.  At  the  time 
it  was  adopted  the  people  were  pleased  with  it ;  a 
large  majority  esteemed  it  as  a  most  salutary  re- 
form. We  had  our  home  judges,  and  justice  seem- 
ed to  be  brought  to  every  door  through  the  law 
and  equity  judges  dispersed  throughout  the  state. 
The  system  went  into  operation  ;  for  a  season  it 
appeared  to  work  well,  but  after  a  lapse  of  twen- 
ty-five years  we  find  ourselves  here  in  Conven- 
tion listening  to  longer  and  louder  denunciations 
against  it  than  were  uttered  against  the  system 
preceding  it.  It  is  our  business  now  to  look  into 
the  causes  of  these  complaints,  and  to  devise  a 
system  that  will  remove  the  evils  complained  of 


and  prevent  their  recurrence.  I  desire  that  we 
should  organize  a  supreme  court  as  nearly  as  pos- 
sible upon  the  plan  of  the  old  supreme  court.  I 
desire  that  the  judges  who  decide  the  causes  at 
jar  should  try  them  at  the  circuits  ;  I  desire  that 
they  should  travel  over  the  state  and  mingle  with 
:he  people,  and  learn  some  common  sense,  and 
incorporate  it  into  their  decisions.  The  time  was 
when  counsel  could  advise  their  clients  with  tol- 
erable certainty — when  it  was  safe  advising  men 
that  so  and  so  their  rights  would  be  decided,  but 
that  time  has  passed  away.  It  seems  that  we  have 
seen  running  into  judicial  darkness,  and  have 
made  such  progress  in  the  race  as  to  throw  the 
law  into  utter  obscurity.  No  honest  counsel  will 
at  this  day  advise  his  clients  with  any  degree  of 
assurance,  that  their  interests  will  be  promoted  by 
prosecuting  or  defending  any  matter  in  which  there 
is  the  least  chance  for  getting  up  a  litigation.— 
The  most  he  can  do  is  to  advise  them  of  his  opin- 
ion of  the  law,  and  apprise  them  of  the  dangerous 
uncertainty  that  attends  its  administration,  and 
tell  them  if  they  prosecute  or  defend  it  must  be 
upon  their  own  responsibility.  Different  causes 
have  led  to  this  result.  I  believe  that  a  princi- 
pal one  arises  from  the  fact  that  the  judges  who 
decide  in  bank,  are  not  allowed  to  try  the  causes 
at  the  circuits ;  none  of  them  have  ever  seen 
the  parties  or  heard  the  witnesses,  and  all  they 
know  of  the  matter  comes  to  them  upon  paper. 
The  increasing  population  and  business  of  the 
State  has  greatly  increased  the  demand  for  ju^i- 
cial  labor.  The  legislation  of  the  State  has  ad- 
ded to  that  increase.  Some  of  our  very  mea- 
sures of  reform  have  tended,  in  my  opinion,  to 
cast  burthens  upon  the  judiciary.  The  abolish- 
ing imprisonment  for  debt,  and  the  extension  of 
the  former  exemption  laws,  have  given  rise  to 
much  litigation.  Litigation  has  increased  and 
accumulated  until  our  courts  find  themselves 
with  a  burthen  upon  their  shoulders  which  they 
have  no  longer  the  strength  to  carry.  They  are 
literally  borne  down  with  a  mass  of  business  that 
they  have  not  the  capacity,  mental  or  physical,  to 
dispose  of.  We  must  devise  and  adopt  measures 
that  will  enable  our  judiciary  promptly  to  meet 
this  increased  and  increasing  business,  or  what 
will  operate  as  a  check  upon  litigation.  I  think 
that  I  can  mention  one  thing  that  would  ultimate- 
ly go  far  to  check  it,  but  the  legislature  is  the 
proper  organ  to  apply  that  check.  I  refer  to  the 
fees  allowed  by  law  to  counsellors  and  attorneys. 
Should  they  be  entirely  abolished,  I  believe  that 
more  than  one  half  of  the  litigation  in  the  State 
would  fall  off.  It  would  reduce  the  number  of 
lawyers,  and  with  the  reduction  of  their  number, 
you  would  reduce  the  chances  of  litigation. — 
Should  the  fees  be  abolished,  it  would  improve 
Ihose  who  remained '  in  the  profession.  They 
would  become  better  and  more  reliable  lawyers, 
and  it  is  due  to  the  profession  that  the  odious  po- 
sition that  they  now  occupy  should  not  be  forced 
and  continued  upon  them.  The  fee  bills  should 
be  abolished,  and  lawyers  restored  to  their  natu- 
flal  rights.  Lawyers  are  the  only  class  whose  bu- 
liness  is  bound  down  by  statutory  restriction. — 
The  clergyman  is  allowed  to  agree  upon  the  price 
of  his  services  with  the  flock  he  teaches.  The 
physician  is  permitted  to  bargain  with  his  patient, 
the  merchant  to  fix  the  price  of  his  merchandise , 


582 


i 


the  farmer  of  his  produce,  and  the  laborer  the 
amount  of  his  wages.  Every  class  of  citizens  in 
the  State  except  lawyers,  have  the  right  to  make 
the  best  bargain  for  themselves.  Complaints 
against  the  profession  are  very  common.  They 
are  accused  of  extortion,  and  of  being  allowed  ex- 
orbitant fees.  These  fees  are  established  by  law, 
and  if  an  attorney  should  exact  and  receive  more 
than  the  prescribed  amount,  he  would  be  liable 
to  punishment  by  indictment  and  fine.  I  repeat, 
it  is  due  to  the  profession  that  this  odious  and 
partial  distinction  be  done  away,  and  that  law- 
yers, in  regard  to  their  business,  be  placed  on  the 
same  footing  with  the  other  classes  of  the  com- 
munity. As  it  regards  the  question  before  the 
committee,  that  of  blending  the  law  and  chance- 
ry jurisdiction,  I  deem  the  thing  impracticable, 
"'hose  jurisdictions  should  be  kept  separate.  I 
\  would  not  vest  them  in  the  same  tribunal,  but 
inasmuch  as  the  demolition  of  the  court  of  chan- 
cery has  become  so  great  a  favorite  with  this  Con- 
vention, and  inasmuch  as  they  assert  that  they 
are  only  reflecting  the  will  of  the  people  in  this 
respect,  I  would  consent  to  vote  for  the  adoption 
of  a  Constitution  that  provided  for  vesting  the 
law  and  equity  powers  in  the  same  court.  I  re- 
gard it  as  highly  dangerous  that  the  distinction 
between  proceedings  at  law  and  in  equity  be  a- 
bolished.  It  would  be  a  greater  innovation  than 
had  ever  been  introduced  into  our  system.'  It 
would  lead  to  more  and  more  confusion  than  we 
have  ever  witnessed.  I  think  it  would  peril  the 
safety  and  freedom  of  the  people,  and  put  to  haz- 
ard the  existence  of  our  free  institutions.  It  was 
with  surprise  that  I  heard  the  gentleman  from 
New  York,  (Mr.  O'CONDR)  put  forth  the  propo- 
sition yesterday.  I  had  not  supposed  that  any 
man,  the  least  acquainted  with  the  history  of  civ- 
il jurisprudence,  could  by  possibility  entertain 
such  a  heresy.  I  am  not  tenacious  as  to  the  form 
in  which  our  judiciary  be  established,  so  that  we 
come  the  nearest  possible  to  our  old  nisi  prius 
system.  Perhaps  the  report  of  the  majority  of 
the  judiciary  committee  approximates  as  nearly 
to  it  as  the  condition  of  the  State  will  admit;  and 
I  think  if  we  incorporate  the  report  into  the 
Constitution,  and  the  legislature  will  do  its  duty 
in  passing  laws  of  reform,  we  shall  be  relieved 
from  the  j  udicial  evils  that  now  afflict  us. 

Mr.  BASCOM  then  took  the  floor  and  moved 
to  rise  and  report  progress.  Agreed  to. 

The  Convention  then  took  a  recess. 

AFTERNOON  SESSION. 

Mr-  CAMBRELENG  made  a  motion  to  print 
the  proposition  ot  Mr.  TAGGART  for  a  judiciary 
system. 

Messrs.  F.  F.  BACKUS  and  J.  J.  TAYLOR  op- 
posed  the  motion  to  print- 
Mr.  MURPHY  moved  to  amend  so  as  to  include 
all  the  plans  that  had  been  referred  for  a  judiciary 
system. 

Mr.  PATTERSON  said  they  were  very  volumin- 
ous ;  they  had  all  been  duly  considered,  and  the 
committee  considered  themselves  entirely  dis- 
charged trom  their  further  consideration. 

Mr.  MURPHY  then  said  that  he  withdrew  his 
motion. 

The  motion  was  put ;  a  count  was  called,  arid 
resulted  ayes  35,  noes  15 — 50. 


The  PRESIDENT:  No  quorum  voting;  the 
Clerk  will  call  the  roll,  to  see  if  a  quorum  is 
present. 

Cries  of  "  Oh  no  ;  no." 

The  Clerk  counted,  and  said  that  there  were  70 
members  present. 

The  PRESIDENT :     A  quorum  is  present. 

The  question  was  then  put  again,  and  resulted 
ayes  44,  noes  9 — 53. 

Mr.  CHATFIELD:  As  44  is  a  majority  of  a 
quorum,  that  is  sufficient,  since  a  quorum  is  pre- 
sent. 

Mr.  PRESIDENT:  The  Chair  will  put  the 
question  again,  if  gentlemen  will  please  to  vote. 

Mr.  FORSYTH:  I  call  the  ayes  and  noes  on 
the  question,  sir. 

Mr.  SWACKHAMER:  I  would  rather  vote  to 
expel  the  member  who  would  not  vote  on  that 
question. 

The  ayes  and  noes  were  ordered  and  resulted : 
Ayes  65,  Noes  15—80. 

When  the  first  call  was  made,  there  were  only 
75  members  answered.  Five  came  in  afterwards. 

The  motion  to  print  300  copies,  was  therefore 
carried. 

On  motion  of  Mr.  RUGGLES,  the  Convention 
then  went  into  committee  of  the  whole  on  the 
JUDICIARY  REPORT. 

Mr.  CAMBRELENG  resumed  the  Chair. 

Mr.  BASCOM  said  if  he  could  without  the 
charge  of  egotism,  say  how  long  he  had  indulged 
the  hope  of  seeing  the  people  of  the  State  in  their 
majesty,  come  up  to  the  work  of  a  thorough  re- 
formation of  their  laws,  and  the  tribunals  for  their 
administration,  it  would  hardly  be  necessary  for 
him  to  assure  the  committee,  that  he  rose  under  a 
deep  sense  of  the  importance  of  the  subject  we 
had  at  length  come  to  consider,  and  of  the  high 
responsibility  resting  upon  those  who  had  so  im- 
portant a  duty  to  discharge  in  reference  to  it,  as 
the  members  of  this  body ;  and  he  might  be  per- 
mitted to  say  that  he  had  reflected  long  enough 
upon  the  questions  we  are  now  considering,  and 
had  traced  back  to  such  causes,  the  evils  we 
should  attempt  to  cure,  as  not  to  be  angry  or  im 
patient  with  those  with  whom  he  differed,  and  to 
extend  that  charity  to  what  he  regarded  as  the  er- 
rors of  others  that  he  claimed  for  his  own ;  and  if 
he  indulged  in  what  should  be  thought  severity, 
he  intended  its  application  to  systems  and  their 
results,  rather  than  to  men  that  had  administered 
them,  or  had  become  their  victims.  He  had  in- 
tended this  morning  to  have  confined  some  re- 
marks to  the  third  section  of  what  was  called  a 
report  of  the  majority  of  the  committee,  that 
was  the  subject  of  yesterday's  debate  ;  but  not  ha- 
ving obtained  the  floor,  the  debate  of  this  morn- 
ing had  changed  his  purpose  and  furnished  his 
apology  for  a  wider  range.  He  thanked  the  gen- 
tleman from  Allegany  (Mr.  ANGEL,)  for  a  sug- 
gestion that  we  should  first  consider  and  under- 
stand the  nature  and  cause  of  the  evils  that 
we  are  to  remove,  before  we  come  to  decide 
upon  the  remedies  to  be  applied.  It  was  a  sug- 
gestion worthy  the  experience  and  judgment 
of  his  friend,  for  that  governmental  reformer 
who  should  undertake  to  change  or  alter  the 
institutions  of  his  country,  without  first  under- 
standing whether  evils  existed,  or  from  what 
source  they  had  sprung,  was  as  much  a  fool  as 


583 


the  physician  who  should  drug  his  patient  with- 
out first  ascertaining  not  only  that  he  was  dis- 
eased, but  the  nature  of  his  malady.  That  our 
present  judicial  system  was  radically,  fundament- 
ally wrong  and  defective,  that  the  body  politic 
was  diseased  by  its  unsuccessful  workings,  was 
so  generally,  so  universally  understood  and  ad- 
mitted, as  not  to  justify  argument  upon  this  first 
important  point ;  and  he  should  pass  at  once  to 
a  consideration  of  what  he  regarded  its  particu- 
lar defects,  for  from  these  had  come  the  evils 
it  was  our  business  to  correct.  In  1821,  when  a 
Convention  like  this  assembled  to  reform  the 
foundation  structure  of  government,  it  found  a 
judiciary  system,  with  a  single  chancellor  and  a 
clear  docket,  a  Supreme  Court  of  five  judges  who 
had  held  the  circuits  throughout  the  State,  re- 
viewed their  own  decisions,  and  corrected  their 
own  errors  besides  performing  important  duties 
as  revisers  of  the  Legislation  of  the  state,  with- 
out such  load  of  deferred  business  upon  their  hands 
as  to  cause  general  complaint  of  the  delays  of 
justice.  The  Convention  of  1821  changed  the 
whole  structure  of  the  judicial  system,  wheth- 
er wisely  he  left  the  results  to  tell.  It  cre- 
ated nine  chancellors,  made  one  the  chief,  and 
the  eight,  subordinates.  It  created  eleven 
judges  of  the  supreme  court,  made  three  of  them 
chiefs,  and  eight  of  them  subordinate,  introducing 
into  your  judiciary  a  system  of  rank,  and  grade 
more  properly  belonging  to  your  army.  From 
this  system  of  grade  and  division  of  labor,  a  great 
proportion  of  the  evils  had  originated  that  demand 
a  remedy  at  our  hands.  Your  three  judges  of  the 
supreme  court  were  immured  at  the  capitol  and 
their  energies  taxed  and  expended  in  studying 
the  opinions  of  men  living,and  men'dead  across  the 
water,  and  denied  such  opportunity  as  they  ought 
to  have  had,  of  becoming  familiar  with  the  men, 
and  all  the  varied  interests  of  their  own  country, 
while  yovr  circuit  judges,  the  real  working  men 
of  the  syatem,  were  sent  abroad  to  hold  your  cir- 
cuits, branded  by  a  limitation  of  their  powers, 
and  a  comparatively  small  salary  as  inferiors. — 
Now,  here  was  one  of  the  great  faults  of  the  sys- 
tem; if  different  grades  of  talent  was  to  be  em- 
ployed, if  the  labor  of  trying  and  setling  contro- 
versies was  to  be  divided  and  parcelled  out  to 
men  of  different  grades  of  talent  and  ability,  he 
insisted  that  the  best  should  be  sent  down  to  the 
circuit,  that  by  far  the  most  important  part  of  the 
work  might  be  done  by  the  best  ability  that  could 
be  employed,  and  the  inferior  talents  should  be 
employed  in  reviewing  the  comparatively  few 
cases  that  were  carried  beyond  the  circuit.  The 
circuit  court  passed  upon  all  the  issues  that  were 
joined;  the  supreme  judges  passed  upon  only  the 
few  that  were  carried  before  them,  and  if  there 
must  be  an  inferior  grade  of  judges  in  the  same 
court,  they  should  be  placed  so  as  to  do  mischief 
in  the  smallest  number  of  causes.  The  circuit 
branch  of  the  system  has  been  the  only  one  that 
has  been  tolerable.  Notwithstanding  all  the  diffi- 
culties under  which  the  circuit  judges  have  la- 
bored, some  experience  warranted  him  in  saying 
their  duties  had  in  the  general  been  discharged 
with  great  industry  and  fidelity,  but  with  what- 
ever ability  they  might  try,  and  decide,  the  idea 
of  their  inferiority  constantly  tempted  the  defeat- 
ed suitor  to  try  his  chance  with  judges  who,  by 


the  judicial  organization,  were  Superior  to  the 
one  whose  opinion  was  against  him.  The  inte- 
rests, as  well  as  the  prejudices  of  his  profession- 
al adviser  favored  this  experiment,  and  appeals 
to  the  superior  branch  were  the  consequences, 
until  this  best  branch  of  the  system  had  become 
a  kind  of  horse-rake,  to  gather  litigation  into 
winnows,  that  it  might  be  pitched  into  and  stored 
away  into  your  superior  courts.  For  one,  he 
would  not  admit  the  propriety  or  necessity  of 
reorganizing  or  continuing  the  idea  of  superiority 
or  inferiority  in  the  judges  that  were  to  be  em- 
ployed in  trying,  reviewing  and  deciding  causes. 
But  if  the  idea  was  not  to  be  abandoned,  then  he 
insisted  upon  sending  down  to  the  circuit  the  very 

best  judicial  talent  in  the  service  of  the  State. 

Let  the  circuit  work  be  done  well ;  let  it  be  done 
by  judges  who  have  the  advantage  of  every  cir- 
cumstance that  will  command  the  confidence  of 
suitors,  and  the  profession,  and  much  will  be  done 
to  prevent  the  improper  and  unnecessary  carry- 
ing up  of  causes.  Let  your  causes  be  well  tried 
at  the  commencement,  and  few  of  them  will  em- 
barrass your  tribunals  by  attempts  to  obtain  new 
trials.  The  abler  the  judges  you  place  at  the  circuit 
the  fewer  circuit  blunders  will  there  be  to  correct; 
defeated  suitors  must  not  be  expected  to  be  satis- 
fied until  the  best  judicial  talent  in  the  service 

shall  have  considered  and  decided  their  causes. 

The  common  pleas  was  liable  to  the  same  objec- 
tion here,  but  such  talent  was  brought  into  requi- 
sition as  the  locality  furnished  and  a  stinted  com- 
pensation could  command,  and  they  too  furnished 
a  reasonable  share  of  the  question  for  review 
that  had  blocked  up  the  superior  courts,  and  the 
result  had  shown  that  the  Convention  of  1821 
had  made  the  same  mistake,  that  a  mill-wright 
would  be  likely  to,  who  would  be  ignorant  of  the 
required  relative  capacity  of  his  grinding  and  his 
bolting  power.  He  came  now  to  speak  of  the 
report  of  the  majority  of  the  committee,  as  it  was 
called— of  it  he  intended  to  speak  plainly;  the 
objections  he  had  to  it,  that  in  his  judgment 
justified  him  in  presenting  a  minority  report,  but 
he  intended  to  state,  he  would  bear  in  mind  the 
appeal  of  one  of  its  god-fathers,  the  gentleman 
from  Columbia,  that  it  should  be  treated  kindly. 
The  appeal  was  hardly  necessary  for  him,  and  if 
there  was  any  apparent  unkindness  in  the  objec- 
tions he  should  make,  he  hoped  it  would  be  un- 
derstood to  go  to  the  report  itself,  rather  than  to 
the  members  of  the  committee  who  stood  its  spon- 
sors. He  had  had  as  full  opportunity  as  any 
other  man,  for  he  had  attended  every  one  of  the 
40  or  50  sessions  of  the  committee,  to  judge  of  the 
fidelity  with  which  that  committee  had  aimed  to 
discharge  its  trust,  and  while  rumors  out  of  doors 
were  rife  as  to  disagreements,  and  even  of  person- 
al altercations,  the  members  were  using  every 
exertion  to  make,  or  permit  to  be  made  a  real  ma- 
jority report.  The  labor  of  week  after  week 
was  devoted  to  preparing  and  agreeing  to  sections 
which  after  being  voted  in  by  a  majority,  made 
in  the  aggregate  an  article  without  paternity  or 
advocates.  The  committee  were  unable  to  agree, 
and  the  great  reason  was  that  it  was  composed  of 
honest  men,  who  had  opinions  of  their  own,  (pre- 
conceived perhaps)  as  to  what  the  public  interest 
demanded,  and  each  was  reluctant  to  surrender 
principles  that  he  deemed  sound  and  salutary ; — 


584 


and  it  was  not  for  him  to  complain  of  the  mem- 
bers of  the  committee  who  were  more  yielding 
than  himself,  and  had  enabled  any  report  to  be 
presented  that  could  be  called  a  majority  report; 
he  had  every  reason  to  treat  the  thing  kindly — 
for  he  knew  of  the  short  period  of  its  gestation, 
and  its  consequent  immaturity.  But  more  than 
all,  he  liked  it  for  some  of  its  most  important 
provisions,  and  he  feared  he  would  be  charged 
with  ingratitude  for  not  lending  the  whole  of  it 
his  support ;  but  he  represented  the  opinions  of 
others  besides  his  own  here,  and  although  the 
majority  had  gone  a  great  way  in  meeting  the  wants 
of  the  people,  yet  when  acting  in  their  behalf, 
he  might  be  pardoned  if  he  was  greedy  enough  to 
ask  for  still  more  relief.  The  second  section  pro- 
vided for  the  election  by  the  people  in  the  state 
at  large  of  four  of  the  judges  of  the  court  of  last 
resort  for  a  term  twice  as  long  as  that  of  the  mem- 
bers of  the  present  court  of  errors.  Now  though 
he  should  advocate  the  election  by  the  people  of 
their  judges  in  single  election  districts,  the  elec- 
tion by  the  state  at  large  was  an  entirely  differ- 
ent matter.  The  Convention  had  decided  upon 
electing  the  state  officers,  canal  commissioners 
and  all  the  officers  that  compose  the  canal  board, 
and  also  the  state  prison  inspectors,  by  which  an 
unhealthy  activity  will  be  stimulated  along  the 
canal  lines  and  around  your  state  prisons  among 
the  ever  ready  army  of  candidates  for  canal  and 
prison  officers.  This  array  he  feared  would  con- 
trol your  state  nominating  conventions,  and  when 
it  had  secured  to  itself  such  candidates  as  would 
parcel  out  the  officers  as  it  desired  it  would  not 
be  strange  if  the  chances  of  popular  success  should 
be  increased  by  nominating  for  judges  of  the  high- 
est court,candidates  who  sympathized  with  some 
local-  popular  excitement.  He  feared  the  time 
might  come  when  candidates  for  this  high  judi- 
cial station  or  their  friends  might  bargain  for  a 
nomination  in  these  (not  always  to  be  trusted) 
state  conventions.  He  had  once  known  a  candi- 
dateijfor  a  seat  in  the  present  court  of  errors,  indi- 
cate to  a  portion  of  the  electors  what  his  opinion 
was  upon  a  matter  to  be  decided  in  that  court,  in 
which  a  large  number  felt  an  interest,  and  he 
would  not  close  his  eyes  to  the  fact  that  local  in- 
terests or  subjects  of  temporary  excitement  some- 
times had  a  controlling  influence  in  popular  elec- 
tions. And  he  might  be  permitted  to  repeat  what 
he  had  said  the  other  day  that  the  people  would 
generally  decide  rightly  when  a  personal  ac- 
quaintance with  candidates  would  aid  them — 
yet  it  did  not  follow  that  any  intuitive  wisdom 
would  secure  them  from  an  unfortunate  choice 
when  candidates  should  be  necessarily  located  in 
distant  parts  of  the  State.  The  third  section  is 
sui  generis — like  itself,  and  unlike  any  section 
that  could  be  found  in  any  constitution.  It  does 
not  vest  the  judicial  power  of  the  State  in  the 
court  it  establishes,  and  there  is  no  section  of  the 
article  that  performs  that  office.,  aad  yet  it  vests  a 
jurisdiction  that  should  be  conferred,  if  conferred 
at  all,  by  the  Legislature.  It  declares  that  "  there 
shall  be  a  Supreme  Court  having  the  same  juris, 
diction  in  law  and  equity,  which  the  Supreme 
Couri,  and  the  Court  ot  Chancery  now  have,  sub- 
ject to  regulation  by  law."  By  the  present  Con- 
stitution, the  jurisdiction  of  the  courts  it  creates, 
is  not  described,  it  simply  vests  the  judicial  power 


in  the  tribunals  provided,  and  leaves  the  Legisla- 
ture fo  mark  the  boundaries  of  the  jurisdictions. 
But  his  chief  objection  was  that  it  recognized  a 
distinction  between  law  and  equity,  conferred  all 
the  power  and  jurisdiction  thai  the  Court  of 
Chancery  had  obtained  either  here  or  in  England 
by  constitutions,  by  law,  or  usurpation,  and  sub- 
ject not  to  abolishment  but  to  mere  regulation. — 
It  was  held  with  reference  to  another  subject  that 
ihe  power  "  to  regulate"  was  not  a  power  to  abo- 
lish or  destroy,  and  he  apprehended  that  such  in- 
terpretation would  be  given  to  this  section.  If 
gentlemen  would  turn  to  the  2d  volume  of  the 
new  edition  of  the  Revised  Statutes,  at  page  234, 
they  would  see  a  part  of  the  power  that  they 
would  confer  upon  this  court  without  the  power  to 
take  it  away  again.  The  powers  and  jurisdiction 
of  the  court  of  chancery  are  co-extensive  with 
the  powers  and  jurisdiction  of  the  court  of  chan- 
cery in  England,  with  the  exceptions,  additions, 
and  limitations  created  and  imposed  by  the  laws 
of  this  state.  The  gentleman  from  Columbia  (Mr. 
JORDAN)  had  nominated  his  friend  from  Kings 
(Mr.  SWACKHAMER)  for  commissioner  upon  codi- 
fication, and  suggested  that  he  make  a  little  book, 
in  which  all  the  laws  necessary  to  be  had  should 
be  written.  Now  it  his  friend  should  deem  it 
necessary,  as  a  preparation  to  the  discharge  of  his 
duties,  to  make  himself  acquainted  with  the  pow- 
ers and  jurisdiction  of  the  court  of  chancery,  in 
England  ;  and  with  the  exceptions,  additions,"  and 
limitations  created  and  imposed  by  our  own  sta- 
tutes, he  would  have  no  time  in  the  course  of  an  or- 
dinary  life,  to  write  even  a  little  book.  These  co- 
extensive powers  with  England's  court  of  chancery 
have  heretofore  existed  by  law,  and  could  by  law 
be  taken  away.  It  is  now  proposed  to  make  "them 
irrevocable  by  the  constitution.  Is  it  not  time 
that  we  should  have  done  with  the  musty  volumes 
of  antiquity,  or  the  archives  of  foreign  countries, 
to  learn  what  are  the  powers  and  jurisdiction  of 
our  own  courts  ?  Is  it  not  time  that  their  powers 
should  be  so  enumerated  in  the  constitution,  or 
the  laws,  as  that  they  can  be  understood  without 
so  much  ancient  and  foreign  research  ?  Besides 
these  general  powers,  there  has  been  given  to  the 
court  of  chancery  a  great  deal  of  power  over  parti- 
cular subjects.  The  power  to  compel  discovery 
and  assignments  by  judgment  debtors,  power  to 
foreclose  mortgages,  partition  lands,  to  aid  rail 
road  corporations  in  obtaining  rights  of  way — a 
power  over  banks  and  incorporations — with  a  great 
many  other  powers — have  been  from  time  to  tune 
conferred  hy  the  legislature,  on  that  court. — 
The  present  law  too  declared  that  the  supreme 
court  should  possess  the  powers  and  exercise  the 
jurisdiction  which  belonged  to  the  supreme  court 
of  the  colony  of  New  York.  This  description  of 
jurisdiction  was  to  be  perpetuated  by  the  section  ; 
it  might  be  well  enough ;  but  it  was  growing  every 
year  more  and  more  difficult  to  know  exactly  what 
the  powers  and  jurisdiction  of  the  old  colonial 
court  really  was — and  he  believed  it  was  time  to 
enumerate  the  powers  conferred  upon  the  courts. 
We  could  not  well  do  it  here,  but  the  legislature 
could,  and  he  hoped  it  would  do  so.  He  had  lis- 
tened with  great  pleasure  to  the  argument  of  his 
friend  from  New  York  (Mr.  O'CONOR)  yesterday, 
in  favor  of  the  proposition  to  assimilate  the  pro- 
ceedings and  practice  in  the  classes  of  causes 


585 


heretofore  distinguished  as  suits  in  law  and  suits 
in  equity;  he  thanked  that  gentlemen  for  the 
clear  and  satisfactory  argument  he  had  made  to 

the  feasibility  of  so  important  a  reform  — 
And  although  he  understood  the  gentleman  differ- 
ently in  one  respect  from  others  who  had  replied 
to  him,  that  gentleman  required  no  aid  from  him 
to  be  set  right  before  the  committee.  And  al- 
though he  had  for  some  time  supposed  that  there 

ip  intrinsic  difficulty  in  accomplishing  the 
assimilation  of  the  practice  and  mode  of  procedure 
on  the  two  classes  of  causes,  and  though  he  had 
long  thought  it  extremely  desirable,he  should  not 
weaken  the  force  of  that  gentleman's  remarks  by 
unv  attempt  to  fortify  them,  other  than  to  answer 
if  he  could  the  objections  of  the  gentleman  from 
Ontario.  He  was  glad  to  see  his  friend  from  On- 
tario meet  the  proposition,  for  if  there  was  any 
man  upon  this  floor  who  was  capable  of  meeting* 
and  overthrowing  a  false  position  upon  a  subject 
like  this,  it  was  that  gentleman.  He  had  noted 
his  argument  and  his  illustration,  and  if  he  could 
show  by  the  very  illustration  the  gentleman  had 
used  that  his  position  was  unsound,  he  would  be 
content  to  pass  the  subject.  The  illustration  was 
this, — A.  contracts  to  purchase  land  of  B.  and 
pays  $500,  agreeing  to  pay  more  hereafter,  but 
fails  to  put  his  contract  of  purchase  upon  record. 
B.  afterwards  sells  and  conveys  the  land  to  C. — 
By  the  present  system,  if  A  wants  his  money 
he  may  bring  an  action  at  law  against  B. ;  but  if 
he  prefers  to  have  the  land,  he  must  file  his  bill 
in  Equity  against  C.  and  the  question  will  then 
be  whether  C.  is  a  purchaser  in  good  faith  with- 
out notice  of  the  interest  or  rights  of  A.  ;  if  so  he 
will  be  entitled  to  hold  the  land,  and  A  must  pay 
a  good  bill  of  costs  for  attempting  to  get  it  from 
him.  But  A.  may  then  bring  his  action  against 
B  and  get  his  money  if  B.'s  responsibility  has 
lasted  as  long  as  a  chancery  suit.  Now  in  both 
these  actions  the  whole  facts  of  the  case  will 
have  to  be  elicited.  Is  it  not  possible  to  avoid 
one  of  them  ?  Suppose  the  form  of  proceeding 
should  permit  A  to  make  his  complaint  against 
both  B.  and  C.,  recover  his  land  of  C.  if  C. 
was  in  the  wrong,  or  if  C.  was  entitled  to  keep 
the  land,  recover  back  his  money  from  B. — 
It  has  long  been  the  practice  to  bring  an  action 
against  several  defendants  for  a  trespass,  and 
take  a  judgment  against  a  part  only  who  were 
proved  to  be  guilty,  and  if  it  be  objected  that  the 
rights  of  A.  grow  out  of  a  contract,  and  that  the 
general  rule  was  that  you  should  bring  actions 
upon  contracts  only  against  joint  contracting  par- 
ties, I  answer  that  we  have  already  departed  from 
that  rule  and  permitted  parties  to  be  made  joint 
defendants  where  they  were  not  joint  contractors; 
we  now  bring  an  action  against  maker,  endorser, 
and  acceptor  of  a  bill  of  exchange,  or  note,  al- 
though the  promise  of  one  is  absolute,  and  the 
other  conditional.  The  same  principle  applied  to 
the  case  the  gentleman  from  Ontario  has  used  for 
an  illustration,  would  permit  both  parties  to  be 


the 
best 


complained  of  in  one  action  or  proceeding, 
one  in  the  wrong  to  be  compelled  to  do  the 
equity  in  his  power  and  the  other  to  be  discharg- 
ed. If  it  should  turn  out  that  both  C.  and  D.  had 
been  guilty  of  bad  faith,  let  the  judgment  or  de- 
cree pass  against  both,  and  if  C.  had  not  acted  in 
bad  faith,  let  the  judgment  be  that  B.  shall  pay 


back  the  money  with  interest.  There  was  no  dif- 
ficulty in  the  application  of  the  principle  to  such 
a  case,  and  he  did  not  believe  that  any  other  could 
be  stated  where  there  would  be  more  difficuly. 
He  came  now  to  the  alternative  section,  and  his 
opportunities  as  a  member  of  the  committee  had 
not  enabled  him  to  know  why  this  section  pro- 
viding that  judges  be  appointed  in  a  particular 
manner  or  elected  by  the  people  in  lar^e 
districts  was  introduced,  unless  for  the  pur- 
pose of  bringing  to  the  support  of  the  report 
opposing  and  conflicting  opinions,  upon  this  most 
important  part  of  the  subject.  The  committee 
discussed,  considered  and  decided  the  question  re- 
ferred to  in  regard  to  the  mode  of  designating 
judicial  officers,  by  a  larger  majority  than  almost 
any  other  proposition  was  settled,  and  yet  what  is 
is  taken  up  here  as  the  majority  report  recom- 
mends one  or  another  of  two  objectionable  modes. 
With  all  respect  he  felt  bound  to  insist  that  the 
well  considered  decision  of  the  committee  should 
have  been  reported  to  the  Convention  instead  of 
an  alternative  proposition,  intended  as  he  thought 
to  give  appearance  of  agreement  where  there 
was  none.  But  he  objected  to  both  the  proposi- 
tions. The  present  mode  of  appointment  by  the 
Governor  and  Senate  had  received  too  general 
popular  condemnation,  and  had  in  his  judgment 
been  attended  with  such  results  as  not  to  justify 
its  continuance.  The  judgment  and  feeling  not 
only  in  the  Convention  but  throughout  the 
State  was  against  it.  The  idea  is  fast  being 
abandoned  that  any  portion  of  the  public  ser- 
vants should  enjoy  independence  of  the  people 
whose  interests  they  have  in  charge,  whose 
business  they  transact,  whose  rights  they  protect 
or  disregard.  The  idea  of  the  necessity  of  judicial 
independence  in  England  w«s  entirely  different 
from  that  conveyed  by  the  use  of  the  term  here. 
In  England,  the  term  meant  an  independence  of 
the  crown,  and  to  preserve  it  the  life  tenure  of 
the  judges  was  adopted,  while  bete  the  advocates 
ot  judicial  independence  were  the  opponents  of 
judicial  responsibility  to  the  people.  But  we  re- 
quired no  such  independence  here,  but  rather 
that  mode  of  selection  that  shall  secure  the  ho- 
nest discharge  of  official  duty,  by  the  most  direct 
responsibility.  We  have  had  appointed  judges 
under  the  present  constitution.  How  has  the  sys- 
tem worked?  How  in  your  counties,  has  it  been 
successful  in  securing  !he  best  integrity  and  abili- 
ty? Has  it  even  worked  well  in  regard  to  the 
judges  of  your  higher  tribunals?  When  was 
youi  Siate  more  deeply  humbled  and  disgraced, 
than  when  the  judges  of  one  ol  your  highest 
courts  chaffered  on  the  bench  for  places  of  profit 
within  their  own  power  of  appointment,  when 
the  junior  became  the  chief,  when  the  glitter  of 
small  chantre  had  greater  ch aims  in  thee\es  of 
the  seniors  than  the  purity  of  judicial  ermine,  and 
they  weni  down  to  clerk's  stools  to  put  lawyer's 
papers  into  pigeon  holes  and  keep  the  dust  off  of 
them  for  six  cents  a  pitce  ?  The-e  were  your  ap- 
pointed judges.  Now  if  the  principle  be  a  sound  one 
thai  has  been  adopted  here  with  so  much  unanimi- 
ty in  relation  to  the  mode  of  electing  the  member* 
of  both  branches  of  the  Legislature,  the  subject  was 
relieved  of  all  difficulty  if  anything  like  the  num- 
ber of  judges  be  adopted  that  is  recommended  by 
any  of  these  reports.  In  the  report  he  had  felt  it 

48 


586 


his  duty  to  submit,  he  had  proposed  the  number( 
of  thirty-two  judges.  He  would  have  preferred  a 
somewhat  larger  number ;  though  with  such  re- 
formation as  he  hoped  to  see,  he  apprehended 
the  number  would  be  found  sufficient.  He  had 
proposed  this  number  on  account  of  the  facility 
that  existed  by  our  having  made  thirty- two  Se- 
nate districts — of  electing  these  important  officers 
in  what  he  regarded  as  the  only  safe  and  proper 
manner.  By  providing  for  the  selection  of  a  sin- 
gle judge  of  the  Supreme  Court  in  each  of  the 
Senate  districts,  at  a  special  election,  we  should 
enable  the  people  to  act  wisely,  and  the  result 
need  not  be  feared.  But  he  had  an  objection  to 
long  terms.  He  believed  as  firmly  as  any  one, 
that  in  the  general,  that  this  mode  of  selection 
would  be  successful,  but  it  would  not  always  be 
so.  The  public  ear  might  be  sometimes  abused, 
and  incompetent  or  improper  men  placed  upon 
the  bench,  and  he  would  afford  a  reasonably  fre- 
quent opportunity  of  correcting  such  mistakes  as 
should  be  made.  Eight  or  ten  years  term  was 
proposed  by  some,  but  he  could  not  see  the  pro- 
priety of  making  the  judicial  term  four  or  five 
times  as  long  as  the  gubernatorial  or  senatorial 
term.  It  would  not  give  the  opportunity  that 
ought  to  be  afforded  for  correcting  the  mistakes 
that  might  to  be  made.  In  Vermont,  the  judges 
of  the  Supreme  Court  were  elected  annually  by  the 
legislature.  Every  year  each  judge  lays  his  com- 
mission at  the  feet  of  the  power  that  conferred  it, 
and  what  was  the  result  ?  If  an  injudicious  ap- 
pointment be  made,  but  a  year's  inconvenience 
resulted  from  it ;  but  mistakes  had  been  seldom 
made,  and  year  after  year  the  judges  had  been  re- 
appointed,  and  political  parties  dare  not  refuse  to 
re-appoint  a  good  judge,  even  where  differences 
of  political  opinion  existed.  It  was  not  unwise 
to  permit  the  experience  of  that  State  to  light 
our  path  a  little.  In  the  judiciary  committee  he 
had  asked  the  opinion  of  two  gentlemen,  one 
qualified  to  judge  from  his  acquaintance  in  that 
State,  and  both  well  qualified  by  a  familiar  ac- 
quaintance with  the  decisions  of  that  court,  as  to 
the  Vermont  judiciary,  and  both  agreed  in  accor- 
ding to  it  the  highest  character.  And  this  one 
year  term,  and  direct  and  constant  responsibility  I 
to  the  appointing  power,  was  one  of  the  causes  of 
the  success  of  the  Vermont  system.  There  was 
still  another  objection  to  the  report  under  consi- 
deration, and  here  he  would  repeat  that  the  re- 
port was  a  great  and  important  improvement  up- 
on the  present  system.  A  loudly  proclaimed  evil 
had  been  the  centralization  of  political  power 
and  judicial  business  at  the  Capital.  So  far  as 
the  judiciary  system  could  do  it,  this  would  be 
pretty  effectually  broken  up  if  the  report  should 
be  adopted,  or  at  least  as  far  as  Albany  was  con- 
cerned ;  and  an  important  part  of  the  judicial  bu- 
siness would  be  transacted  at  eight  different  cen- 
tral localities.  The  report  went  a  good  way  to  ac- 
commodate the  profession,  and  would  save  suitors 
considerable  of  the  expense  to  which  they  had 
been  heretofore  subjected.  Now  why  not  go  far- 
ther and  carry  the  sessions  of  the  three  judges 
into  all  the  important  counties  of  the  state  ;  there 
might  be  some  small  counties  that  would  afford 
little  or  no  business  for  such  a  session,  but  as  the 
county  courts  are  to  be  abandoned  there  was  no 
good  reason  why  the  sessions  of  the  supreme  court 


should  not  be  distributed  throughout  the  state,  as 
in  Vermont  and  some  of  the  other  states.  If  your 
bench  sessions  are  held  only  at  a  central  point  of 
the  large  districts,  you  will  perpetuate  in  a  degree, 
the  inconveniences  that  have  resulted  from  the 
centralization  at  Albany.  It  would  be  more  eco- 
nomical for  three  judge's  to  travel  from  county  to 
county  than  for  parties  and  counsel  to  meet  thorn 
at  the  centre  of  the  district.  He  had  another 
reason,  higher  than  any  founded  upon  a  calcula- 
tion of  economy  of  time  or  money.  He  would 
have  the  courts  missionaries  of  legal  morality, 
instructors  of  the  people  of  their  legal  rights,  du- 
ties and  obligations,  and  for  this  purpose  he  would 
distribute  their  sessions  as  much  as  possible 
among  the  people.  Let  causes  be  argued  and  the 
decisions  promulgated  among  those  who  from 
their  locality  and  acquaintance  with  the  subject 
matter  feel  an  interest  in  the  question,  and  the  in- 
fluence will  be  to  enlighten  the  people  and  in- 
duce respect  for  sound  principles  of  law.  But 
what  possible  good  in  this  respect  results  from 
the  argument  or  decision  of  questions  origi- 
nating in  distant  parts  of  the  state,  in  one  of 
the  rooms  of  the  capitol  where  none  but  pro- 
fessional men  (and  but  few  of  them)  ever  en- 
ter. The  report  under  consideration  takes  one 
good  step;  let  it  be  so  amended  as  to  take  another 
and  it  will  receive  great  favour.  He  appealed  to 
every  member  of  this  convention,  he  appealed 
particularly  to  every  member  of  the  legal  profes- 
sion, for  without  the  aid  of  such,  this  work  could 
not  be  done,  to  engage  in  this  work  of  judicial  re- 
formation, forgetting  every  personal  or  profession- 
al interest,  and  enquiring  carefully  and  deciding 
honestly,  as  to  what  was  best  for  the  great  whole, 
the  great  people  whose  rights  are  to  be  secured, 
whose  interests  advanced  by  an  enlightened  and 
efficient  judiciary.  The  legal  profession  borne 
down  as  it  had  been  by  the  operation  of  vicious 
systems  and  influences,  for  the  existence  of  which 
they  were  only  in  part  responsible,  had  now  an 
opportunity  of  taking  the  position  in  the  public 
estimation  to  which  the  learning,intelligence  and 
high  moral  worth  of  the  gieat  body  of  its  mem- 
bers entitled  it,  but  to  do  so  the  members  of  that 
profession  must  be  faithful  here.  Complaints  had 
been  made  by  the  gentleman  from  Allegany  and 
from  Columbia,  of  the  estimation  in  which  that 
profession  was  held,  but  they  should  remember 
that  it  was  natural  and  unavoidable,  while  ac- 
cumulations of  industry  for  years,  were  being 
swept  from  their  possessors,  by  the  operation  of  a 
system  that  had  only  worked  well  for  an 
unprincipled  portion  of  a  privileged  order 
ot  men,  that  complaints,  loud,  guntral,  uni- 
versal, arid  indiscrJmmatnig,  should  be  heard. — 
He  owed  it  to  himself  here  lo  say  that  his  own 
opinions  ot  the  profession  lo  which  he  belonged, 
had  been  the  subject  of  misunderstanding  and 
misrepresentation,  and  instead  of  indulging  in  such 
as  had  been  loo  often  attributed  to  him,  he  had 
wondered  at,  and  admired  the  worth  its  ranks  em- 
braced, notwithstanding  all  the  temptations  to  its 
enure  corruption  that  had  existed.  Was  it  won. 
dertul  that  when  judges  from  your  highest  bench 
yielded  lo  mercenary  motive s  and  drscended  to 
the  clerk'sdesk  and  there  sanctioned  the  exactions 
of  costs  never  earned  or  justified  oy  the  spirit  even 
of  the  bad  laws  upon  the  subject — that  the  w  hole 


587 


of  -o  large  a  profession  *>hould  be  uninfluenced  b> 
8'ich  example,  and  corrupted  by  such  temptation  ? 
Was  it  wonderful  that  the  young  and  inexperi- 
enced should  desert  the  path  lo  professional  fame 
which  an  honorable  discharge  ol  duty  would  ever 
secure,  for  the  one  to  which  avarice  beckoned,  and 
which  such  high  influences  had  sanctioned/  The 
opinion  he  had  of  the  legal  profession — the  estu 
mation  iu  which  he  held  its  members  upon  this 
floor — was  the  foundation  of  his  hope  that  we 
should  perfect  a  judicial  system  here,  promoting 
and  requiring  such  leforms  by  legislation,  as  that 
the  law  of  this  great  people,  instead  of  being  some- 
times the  mere  engine  of  craft  and  oppression, 
\vould  he  the  shield  under  which  innocence  might 
ev.M-  find  shelter — the  staff  upon  which  honesty 
might  lean  in  security — a  system  suited  to  the  en- 
lightened intelligence  ot  a  great  people — adapted 
to  fh»>  varifd  wants,  interests,  and  future  greatness 
of  the  treat  S'a'e  of  the  Union. 

Mr.  RUGGLES  had  but  a  very  few  words  to 
sny.  He  asked  the  attention  of  the  committee  to 
the  phraseology  of  the  3rd  section,  and  submitted 
to  the  committee  the  question  whether  the  legis- 
ture  have  not  now  as  entire  and  perfect  control 
over  the  jurisdiction  of  the  Supreme  Court  as 
was  conferred  by  this  section.  Because  if  this 
so,  then  no  amendment  was  necessary,  But 
if  there  was  any  doubt  as  to  the  power  of  the  leg- 
ire  to  take  away  a  portion  of  the  jurisdiction 
of  the  Supreme  court,  (in  regard  to  which  he 
thought  there  could  be  none)  there  could  be  none 
as  to  the  power  to  regulate  the  practice  of  the 
court,  both  in  regard  to  the  equity  side  and  the 
law  side,  and  in  such  a  way  as  they  pleased.  The 
powers  of  the  Court  of  Chancery  are.  transferred 
by  this  section  to  the  Supreme  Court.  Thepow- 
ers  of  that  court,  are  within  the  control  oifihe 
legislature  at  pr^esent.  TheT~are "conferred  upon 
the  Chancel! or  by  the  legislature,  and  his  autho- 
rity for  the  exercise  of  his  powers  depends  now, 
as  it  has  <"or  a  long  time,  upon  the  law  as  provided 
by  the  legislature.  These  powers  are  transferred 
to  the  Supreme  Court  by  this  section  and  the  leg- 
islature will  retain  the  same  control  over  the 
Chancery  powers  in  the  Supreme  Court,  as  it 
has  now  over  them  while  it  is  in  the  hands 
of  the  Chancellor.  The  proposition  of  the  gen- 
tleman from  New-York  (Mr,  O'CoisroR,)  is  that 
a  code  of  procedure  ought  to  be  enacted,  by 
which  the  forms  in  which  causes  heretofore  have 
been  carried  on  in  the  Court  of  Chancery,  and 
courts  of  law,  shall  be  assimilated,  and  brought 
together,  so  that  as  far  as  practicable  both  shall 
proceed  in  the  same  courts,  and  by  the  same 
forms,  and  under  the  same  regulations.  Could 
there  be  any  doubt  as  to  the  power  of  the  legisla- 
ture under  the  section  to  do  this  ?  Mr.  R.  could 
not  see  the  least  possible  ground  for  such  a  doubt. 
He  did  not  propose  to  say  any  thing  further,  all 
he  desired  was  to  call  attention  to  the  construc- 
tion of  this  section,  and  for  an  expression  of  opin- 
ion as  to  whether  it  did  not  confer  upon  the  le- 
gislature perfect  authority  to  make  any  and  every 
reform  in  the  mode  of  proceeding,  either  in  equi- 
ty or  law.  Therefore  the  amendment  of  the  gen- 
tleman from  Clinton,  (Mr.  STETSON)  was  entirely 
unnecessary,  and  upon  that  ground  he  should 
vc-fe  against  it.  In  regard  to  the  forms  of  proce- 
dure in  both  these  courts,  there  was  no  one  who 


had  a  greater  desire  to  see  a  change  in  some  res- 
pects, than  himself.  With  respect  to  the  prac- 
ticability of  the  particular  change  proposed,  there 
was  certainly  some  doubt,  but  he  had  not  the 
slightest  objection  to  see  this  proposition  to  bring 
the  two  courts  together,  tested.  This  section  laid 
a  foundation  for  it.  It  ivas  the  intention  of  the 
committee  in  reporting  the  article,  to  put  the 
whole  matter  in  the  power  of  the  legislature, 
or  rather  to  suffer  it  to  remain  there  where  it  al- 
ways had  been.  It  was  necessary  that  it  should 
be  so,  that  the  power  should  rest  where  it  could 
occasionally  be  regulated  or  altered  according 
to  the  wants  and  necessities  of  the  State,  and  for 
that  reason  this  section  was  incorporated  into  the 
article. 

Mr.  STETSON  so  varied  his  amendment  that 
it  should  read  as  follows  : — 

The  Legislature  shall  provide  by  law  for  a  uniform  sys. 
tern  of proceedure in  the  administration  of  justice  in  civil 
cases,  without  regard  to  the  distinctions  heretofore  had 
between  different  forms  of  action  and  different  jurisdiction 
in  law  and  equity. 

Mr.  STETSON  said  it  would,  perhaps,  be  ex- 
pected that  he  would  explain  the  object  of  his 
amendment.  The  section  to  which  it  applied 
vested  the  jurisdiction  of  law  and  equity  in  a 
Supreme  Court,  "subject  to  regulation  by  Jaw" 
His  amendment  required  the  Legislature  to  pro- 
vide a  common  form  of  proceeding  for  remedies 
under  both  jurisdictions,  so  that  law  and  equity 
should  not  be  separately  administered.  It  might 
be  said  that  the  words  "subject  to  regulation  by 
law,"  reported  by  the  committee,  gave  the  Legis- 
lature the  same  power;  if  so,  no  objection  could 
be  taken  by  them  to  his  amendment,  except  to 
its  phraseology,  which  was  framed  so  as  to  avow 
a  distinct  object;  and  under  the  expectation  that, 
if  adopted,  it  would  afterwards  be  changed.  But 
it  was  because  the  words,  "subject  to  regulation 
by  law,"  might  not  be  construed  to  mean  the 
same  with  his  amendment,  that  he  was  induced 
to  offer  it.  The  jurisdiction  of  law  and  equity 
had  been  administered  by  courts  of  distinct  or- 
ganization, and  now  these  jurisdictions  were  con- 
ferred jointly  upon  the  Supreme  Court,  and  pow- 
er given  to  the  Legislature  to  regulate.  He  fore- 
saw that  two  parties  would  arise  in  the  Legisla- 
ture, the  one  insisting  that  these  jurisdictions 
were  to  be  separately  administered  as  heretofore, 
and  the  other  that  they  should  be  blended.  It 
would  be  a  perpetual  struggle,  and  we  would 
not  have  either  the  one  system  or  the  other.  It 
would  be  a  middle  ground  position,  and  a  Judge 
of  the  Supreme  Court,  whilst  holding  a  law  term, 
feeling  conscious  of  his  equity  powers,  would  be- 
gin to  administer  it  without  regard  to  forms ; 
and  so  of  the  law,  when  holding  equity  terms. — 
It  would  cease  to  be  a  regulated  system  of  law 
and  equity  practice,  under  a  separate  administra- 
tion, tnat  would  only  be  partially  observed.  Now 
he  was  opposed  to  this  middle  ground  position, 
and* he  desired  to  remain  at  the  extreme  we  had 
occupied,  separate  courts  of  law  and  equity,  or  go 
the  other,  thit  ot  having  but  one  set  of  forms  for 
both  jurisdictions.  He  would  confess  that  he  had 
not  tieen  accustomed  to  regard  a  fusion  of  the  two 
courts  as  desirable  and  he  would  still  prefer  sepa- 
rate courts  and  separate  jurisdiction  ;  but  that  had 
been  surrendered  by  the  committee,  and  the  Con- 


588 


vennon  generally  regarded  it  with  disfavor.  Un- 
der these  circumstances,  unless  we  could  have  the 
influence  of  the  committee  in  leading  the  way  to 
a  distinct,  separate  organization,  he  hoped  we 
would  proceed  at  once  to  the  other  extreme,  of 
blending  the  exercise  of  the  two  jurisdictions. 

And  then,  on  motion  of  Mr.  LOOMIS,  the 
committee  rose  and  reported  progress,  and  the 
Convention  adjourned. 

WEDNESDAY,  (60th  day,}  August  12. 

Prayer  by  the  Rev.  Mr.  MORROW. 

Mr.  KIRKLAND  made  an  explanation  in  regard 
to  a  statement  of  Mr.  BASCOM,  yesterday,  relating 
to  action  by  the  judiciary  commiltte,  with  refer- 
ence  to  procuring  a  statement  of  the  proceedings 
of  Bounty  courts. 

Mr.  KiKER  presented  the  remonstrance  of  the 
trustees  of  Union  Academy,  Queens  county,  L.  I., 
relative  to  the  proposed  distribution  of  the  litera- 
ture fond.  Referred  to  the  committee  of  the 
whole,  having  in  charge  the  report  of  Mr.  NICOLL, 

The  PRESIDENT  presented  a  return  from  the 
Comptroller,  in  answer  to  a  resolution  of  Mr. 
WORDEN,  relative  to  the  salt  and  the  auction  du- 
ties. Referred  to  the  committee  of  the  whole 
Laving  charge  of  the  report  on  that  subject,  and 
«  rdered  to  be  printed. 

CODIFICATION  OF  THE  LAWS. 

Mr.  C.  P.  WHITE,  from  the  select  committee 
on  the  codification  of  the  laws,  made  the  follow- 
ing report : 

ARTICLE  

§  I.  The  Governor  of  the  State,  at  the  first  session  of  the 
legislature  alter  the  adoption  uf  the  Constitution,  shall  by 
and  with  the  advice  wd  consent  of  the  Senate,  appoint  live 
Commissioners,  whose  duty  it  shall  be  to  reduce  into  a 
written  systematic  code,  the  civic  and  criminal  procedure, 
and  the  whole  body  of  the  law  of  the  State,  or  so  much 
and  such  parts  thereof  as  to  the  said  Commissioners  sh-.ill 
seem  practicable  and  expedient.  And  the  said  Commas, 
sioners  shall  specify  such  alterations  and  amendments 
therein  as  thev  shall  deem  proper,  and  they  shall  at  all 
times  make  reports  of  their  proceedings  to  the  legislature, 
when  called  upon  to  do  so. 

(5  -2.  The  legislature,  at  its  first  session  after  the  adoption 
of  this  Constitution,  arid  irom  time  to  time  thereafter,  as 
may  be  m  cessary,  shall  pass  laws  regulating  the  tenure  of 
ottice,  the  filling  of  vacancies  therein,  and  the  com;>< nsa- 
tion  of  the  said  commissioners.  The  legislature  shall  also 
provide  for  the  publication  of  the  said  code,  prior  to  its  be- 
ing presented  to  th^  legislature  for  adoption. 
By  order  of  the  committee. 

CAMPBELL  P.  WHITE,  Chairman. 

Mr.  W.  said  that  a  majority  of  the  commiitee 
had  agreed  to   this  report;  yet  each  had  reserved 
to  himself  the  right  to  tak"  such  action  upon  it, 
in  the  Convention,  as  he  might  deem  fit. 
COURTS  OF  CONCILIATION. 

Mr.  KIRKLAND  sent  up  the  following  article 
to  be  added  to  the  article  on  the  Judiciary  : — 

(;  — .  Tribunals  of  conciliation  shall  be  established  by 
law;  such  law  shall  be  general,  and  shall  be  of  uniform 
operation  throughout  the  State. 

Mr.  KIRKLAND  said  that  he  would  move  to 
have  this  section  referred  to  the  committee  of  the 
whole  having  charge  of  the  Judiciary  reports. — 
But  in  so  doing  be  begged  leave  to  add  one  word 
of  explanation.  The  object  of  the  tribunal  men- 
tioned in  this  section  was  to  prevent  litigation  ; 
and  that  was  an  object  which  he  was  sure  every 
member  of  the  Convention  had  sincerely  at  heart: 
nd  would  unite  in  the  means  to  attain.  These  tri- 


bunals of  conciliation  haooeeh  known  in  Europe* 
for  a  long  time  past.  Several  years  ago  they  were 
established  in  Denmark,  in  Prussia,  in  France, 
and  in  Spain,  and  in  all  the  countries  where 
they  had  been  in  operation,  they  had  uniformly 
been  pronounced  to  be  sources  of  the  greatest  bles- 
sings td  the  people.  In  .Denmark,  they  were  es- 
tablished as  far  back  as  1795  ;  and  for  the  three 
years  previous  to  that  time,  there  had  been  over 
25,000  law  suits  in  that  country ;  three  years  sub- 
sequently to  the  establishment  of  these  courts  the 
la%v  suits  had  dwindled  down  to  less  tnan  10,000? 
being  a  diminution  of  move  than  15,000  in  three 
years.  Now,  ifsuch  tribunals  could  be  establish- 
ed in  the  state  of  New- York,  (if  they  were,  there 
is  but  little  doubt  that  they  would  operate  most 
beneficially)  every  good  man,  every  lover  of  good 
morals,  and  of  good  order,  must  and  would  re- 
joice at  it.  He  offered  this  section  at  this  time, 
to  call  the  attention  of  every  member  of  the  Con- 
vention, and  also  of  the  public  generally  to  this 
subject;  in  order  that  they  might  be  furnished  in 
a  short  time  with  all  the  authentic  information 
that  could  be  obtained  in  relation  to  the  organiza- 
tion and  mode  of  procedure  in  these  courts,  and 
the  results  of  their  action.  And  thus,  if  that  in- 
formation should  be  satisfactory  the  Convention 
could  by  a  section  in  the  proposed  Constitution , 
establish  a  tribunal  designed  lor  the  great  and  be- 
nevolent object  of  preventing  litigation. 

Mr.  SHEPARD  wished  to  enquire  of  the  gen- 
tleman from  Oneida  (Mr.  KIRK.L.AND)  what  was 
the  object  he  had  in  view,  and  how  he  proposed 
to  adapt  these  courts  to  the  circumstances  of  our 
state  ?  He  had  examined  the  French  courts,  and 
he  considered  the  machinery  oi'  them  altogether 
too  cumbersome  to  be  adopted  in  this  country. — 
He  hoped  that  the  gentleman  (Mr.  KIRKLAND) 
would  favor  the  Convention  with  an  outline  of 
his  proposed  plan. 

Mr.  KIRKLAND  said  that  he  would  cheer- 
fully furnish  the  Convention  with  all  the  infor- 
mation that  he  possessed  on  the  subject,  which, 
by  the  by,  was  not  a  great  deal.  He  had  re- 
marked when  he  presented  the  proposition  just 
now  that  he  did  so  in  order  to  call  the  attention 
of  the  public,  and  of  the  Convention  to  it,  in 
order  to  elicit  information  on  the  subject.  He 
would  read  to  the  Convention  an  extract  from  a 
report  made  some  two  years  since  to  the  New 
Jersey  Convention :  — 

"  In  each  town  or  precinct,  two  persons  are  chosen  by 
the  people,  who  sit  one  day  in  each  \v  eek,  for  the  receiving 
of  complaint^,  issuing  summonses  lor  the  appearance  or' 
parties  at  the  next  regular  day  of  meeting,  and  for  hearing 
the  parties  already  "Vummcned.  The  Courts  sit  witft 
closed  doors,  and  none  but  the  parties  themselves,  or 
their  special  attorneys,  are  permitted  iu  be  present.  The 
duty  of  the  Court  is  to  hear  tiie  complaints  and  reply  to 
the  parties,  and  to  endeavor  to  induce  them  to  adjust  their 
difficulties  amicably.  At  an  absolute  rule,  nothing  that 
passes  in  the  Court  is  divulged  by  the  members  of  it,  and 
is  forbidden  as  evidence  in  the  Courts  of  law.  Should  the 
attempt  for  reconciliation  fail,  the  Court  grants  to  each  of 
the  parties  a  certih'ca  e  stating  that  they  had  appeared, 
but  did  not  reconcile  their  clifteicnccs.  'ihote  certificates 
are  required  by  the  Courts  of  law,  in  order  to  oblige  par- 
ties to  seek  reconciliation. 

The  (ee  of  this  proceeding  is  very  trifling,  and  is  paid 
by  one  or  both  of  the  partie.-,  as  may  be  uecided  by  the  re- 
conciling judges. 

Your  commit-. ee  suppose  that  it  is  unnecessary  for  them 
to  say  any  thing  in  recommi  nd.ition  of  <\  tribunal  so  s,m- 
ple  in  its  lormation  and  <o  evidently  usetul  but  they  can- 
not refrain  from  calling  the  attention  ol  the  Convention 


589 


to  the  fact  of  the  numberless  cases  which  are  subjects  of 
lengthy,  expensive  and  vexatious  lawsuits,  which  have 
their  origin  in  trifling  differences  between  neighbors  and 
friends, and  which  tlie  amicable  agency  of  a  third  party 
could  reconcile  and  put  forever  at  rest." 

A  MEMBER  asked  what  book  he  read  from  ? 

Mr.  KIRKLAND  replied  that  it  was  one  but 
little  known  and  difficult  to  obtain.  He  added 
that  this  was  all  the  information  that  he  now  pos- 
sessed, but  in  a  few  days  he  hoped  to  be  able  to 
give  them  more. 

Mr.  BROWN  said  if  they  would  look  at  a  recent 
number  of  the  Edinburgh  Review,  they  would 
learn  all  about  these  courts,  their  practice,  and 
the  results. 

Mr.  WORDEN  said  the  subject  of  conciliation 
courts  was  worthy  of  more  consideration  than 
some  gentlemen  seemed  willing  to  bestow  upon 
them.  They  had  received  recently  great  conside- 
ration in  England,  and  were  in  force  in  some  of 
the  countries  of  Europe.  Mr.  W.  said  he  had  re- 
cently met  a  gentleman  of  great  intelligence,  and 
extensively  engaged  in  mercantile  affairs,  residing 
in  a  country  where  these  courts  were  in  existence, 
and  who  had  given  him  a  very  minute  and  accu- 
rate statement,  he  had  no  doubt,  of  the  operations 
and  organization  of  these  courts,  from  which  it 
appears  they  go  very  far  to  repress  litigation,  and 
speedily  to  arrange  those  controversies  that  some- 
times spring  up  between  very  honest  and  well 
meaning  men,  without  the  costs  and  delays  atten- 
ding upon  a  litigation  in  our  courts.  Mr.  W.  said 
he  only  doubted  whether  such  could  be  made  ap- 
plicable to  the  state  of  things  existing  in  our 
State,  and  the  nature  of  all  the  various  dealings 
between  individuals,  or  to  all  questions  that  arise 
out  of  our  extensive  mercantile  transactions ; 
but  there  were  a  class  of  cases  which  he  said  he 
believed  could  with  great  propriety  and  advan- 
tage be  refer i-ed  to  these  courts.  And  with  leave 
of  the  Convention,  Mr.  W.  said  he  would  state  the 
mode  of  procedure  in  Courts  of  Conciliation,  and 
the  cases  that,  in  his  opinion,  might  be  brought 
to  an  end  and  wisely  disposed  of  in  these  courts. 
A  court  of  conciliation  where  they  are  in  exist- 
ence, is  organized  in  this  way — there  are  two  in- 
telligent and  honest  men  appointed  to  hear  the 
complaints  and  allegations  of  the  parties,  who  ap- 
pear before  the  court  without  the  aid  of  lawyers, 
and  each  states  his  case  and  the  points  and  ques- 
tions of  controversy  existing  between  them,  and 
the  facts  on  which  they  base  their  claims.  The 
judges  of  the  court  hear  their  statements,  and  take 
into  consideration  the  rights  of  the  parties,  and 
advise  them  in  regard  thereto  and  make  efforts  to 
bring  them  to  a  conciliation.  No  witnesses  ap- 
pear in  court,  nor  are  counsel  or  attorneys  em- 
ployed ;  and  nothing  that  takes  place  is  ever  ad- 
mitted in  evidence  between  the  parties  elsewhere. 
If  the  parties  agree,  a  statement  of  the  agreement 
is  reduced  to  writing,  signed  by  the  parties  and 
the  court,  and  time  fixed  for  the  payment  of  the 
amount  agreed  on,  for  which,  if  not  paid  as  agreed, 
the  court  issues  execution  very  similar  to  that 
from  our  justice's  court.  Mr.  W.  said  he  thought 
courts  of  this  description  could  be  organized  in 
the  towns,  wherein  parties  residing  in  such  towns 
should  be  compelled,  before  goinglo  law,  to  make 
efforts  to  settle  their  difficulties;  and,  as  in  the 
countries  where  those  courts  exist,  the  parties 
should  not  be  permitted  to  recover  costs  unless 


they  had  made  an  effort  to  conciliate  their  differ- 
ences in  the  court  of  conciliation  of  the  town.  It 
is  true  these  courts  do  not  act  compulsory,  but  by 
prohibiting  the  parties  from  recovering  costs  un- 
less he  makes  an  effort  to  conciliate  his  differ- 
ences, it  operates  to  enforce  the  parties  into  that 
court ;  and  it  is  found  that  the  moral  sense  of  the 
community  in  favor  of  a  peaceful  adjustment  of 
difficulties,  induces  parties  to  seek  that  mode  of 
doing  so.  In  this  way  neighborhood  difficulties 
— personal  controversies — that  now  disturb  com- 
munities, and  call  in  aid  courts  and  juries,  are  set- 
tled and  put  an  end  to.  If  this  system  could  be 
adopted  and  applied  to  towns,  two  of  the  eldest 
justices  might  constitute  the  court,  or  two  distinct 
men  might  be  elected  for  that  purpose.  The  same 
system  might  be  applied  to  counties,  but  he  saw 
greater  difficulties  in  making  it  applicable  to  the 
entire  state,  and  to  controversies  arising  between 
citizens  residing  in  different  portions  of  it.  At 
all  events  it  might  be  made  to  operate  on  those 
controversies  arising  in  towns  and  counties,  and 
he  would  not  say  it  could  not  be  made  applicable 
to  the  state  at  large.  The  subject  was  worthy  of 
consideration,  and  if  it  could  be  so  arranged  as  to 
reach  to  the  suppression  of  litigation  and  to  the 
adjustment  of  controversies,  it  would  do  much  to- 
wards repressing  the  spirit  of  litigation,  and  the 
costs  and  vexation  attendant  upon  long  and  pro- 
tracted legal  controversies,  which  often  had  no 
other  result  than  the  ruin  of  those  engaged  in 
them. 

Mr.  BASCOM  was  rejoiced  to  see  this  new 
light  breaking  in  on  the  judiciary  committee  ; — 
he  had  expected  something  of  this  kind  in  the  on- 
set, and  he  had  suggested  some  such  proposition ; 
but  it  had  had  the  go-by  most  singularly ;  and  yet 
now  this  new  light  was  breaking  in  upon  them  ; 
he  was  glad  to  see  it,  and  he  moved  a  reference 
of  this  proposition  to  that  judiciary  committee, 
in  the  hope  and  expectation  that  they  would  re- 
port a  provision  for  such  a  Court  as  was  contem- 
plated by  the  section. 

Mr.  JORDAN  said  that  as  a  member  of  that 
committee,  he  prayed  to  be  delivered  from  such 
a  reference ;  to  be  excused  from  the  charge  of 
this  bantling.  Under  the  report  of  the  majority 
of  the  committee,  the  Legislature  had  full  power 
to  institute  as  many  of  these  courts  as  they  pleased. 
They  could  provide  that  old  women  might  talk 
over  these  matters  at  a  tea  table,  or  that  some  ve- 
ry wise  heads,  some  few  extraordinary  old  gen- 
tlemen, might  advise  their  neighbors  not  to  be 
cross  or  litigious.  This  proposition  was  unwor- 
thy of  the  consideration  of  this  convention,  it  was 
beneath  the  dignity  of  the  committee,  and  he 
hoped  it  would  be  laid  on  the  table  or  thrown  un- 
der the  table.  Such  courts  belonged  only  to  a 
despotic  government,  where  the  people  were  ig- 
norant, and  had  a  superior  class  over  them,  and 
not  for  our  free  Yankee  population;  who  consi- 
der they  are  competent  to  judge  for  themselves 
in  such  matters.  We  have  got  luggage  enough 
of  this  kind  in  committee  of  the  whole.  We  have 
too  many  encumbrances,  and  want  no  more  of 
them. 

Mr.  BROWN  desired  to  say  one  word.  This 
plan  was  brought  before  the  judiciary  committee 
and  met  with  no  favor  except  from  the  two  gen- 
tleman who  had  spoken  this  morning,  and  the 


590 


gentleman  from  New  York  (Mr.  STEVENS.)  If 
he  mistook  not,  the  gentleman  from  Ontario  (Mr. 
WORDEN)  did  not  favor  it,  and  yet  he  appeared 
here  this  morning  as  the  especial  champion  of 
such  courts.  It  could  clearly  be  demonstrated 
that  such  courts  had  no  affinity  with  our  institu- 
tions. 

The  hour  of  10  here  arrived,  and  the  debate 
was  arrested  by  the  special  order. 
THE  JUDICIARY. 

The  Convention  then  went  into  committee  of 
the  whole  on  the  report  of  the  judiciary  commit- 
tee, Mr.  CAMBRELENG  in  the  Chair. 

Mr.  LOOMIS,  in  remarking  upon  the  proposi- 
tions before  the  committee  of  the  whole,  and  the 
action  of  the  judiciary  committee  upon  the  same 
propositions,  said  that  it  was  the  intention  of  the 
latter  committee,  in  reporting  the  third  section 
of  the  majority  report,  to  provide  that  the  legis- 
lature might  bring  into  one  tribunal  the  jurisdic- 
tions of  law  and  equity;  and  he  did  not  hesitate 
to  say  that  he  believed  this  would  produce  a  per- 
fect blending  of  the  two  in  the  course  of  practice. 
But  there  existed  different  opinions  in  regard  to 
ithe  effect  of  the  language  of  the  section,  and  he 
;was  willing  to  obviate  the  objections  which  were 
founded  upon  its  ambiguity,  as  gentlemen  regard- 
ed it,  by  adopting  a  phraseology  which  could  not 
be  mistaken.  He  went  on  to  allude  to  the  opin- 
ions entertained  by  gentlemen  in  regard  to  the 
union  of  practice,  and  the  origin  of  the  chancery 
practice.  The  union -e£_jthe  two  jurisdictions  in 
the  same  judges  was-  tho  immediate  trcrestion 
which  it  was  desirable  to  settle  now,  as  upon 
that  must  depend  the  entire  system.  It  was  de- 
sirable for  many  reasons  to  do  this,  whether  the 
practice  should  be  blended  or  not.  All  practi- 
tioners were  educated  in  both  forms.  They  were 
equally  acquainted  with  the  forms  of  common 
law  and  chancery,  They  brought  their  cases  in 
either  court,  as  became  necessary.  From  this 
class  of  practitioners  the  judges  of  our  courts  were 
selected,  and  he  did  not  perceive  the  necessity 
for  two  courts.  No  judge  could  be  a  good  chan- 
cellor without,  a  good  knowledge  of  common  law. 
Those  who  differed  in  regard  to  forms  of  proce- 
dure differed  more  in  the  terms  they  used  than  in 
their  opinions.  He  concurred  with  the  gentle- 
man from  Columbia  (Mr.  JORDAN)  in  his  descrip- 
tion of  the  reforms  necessary  in  the  system  of 
pleading.  They  should  be  as  simple  and  direct 
as  possible,  and  yet  sufficient  to  inform  the  other 
party  of  the  grounds  of  the  action  or  defence,  and 
prevent  surprise  on  the  trial.  In  adopting  this 
he  believed  we  should  dispense  with  the  distinc- 
tion between  law  and  equity,  and  should 
also  do  away-  with  the  distinction  now  ex- 
isiii.g  in  foims  of  action  at  law  Gentlemen 
had  said  that  by  having  the  two  forms  in  the 
same  court,  the  judges  wuuld  first  have  a  circuit 
for  trials  at  law,  arid  afterwards  another  in  the 
same  county  for  equity  causes.  He  did  not  re 
gard  I  his  as  necessary.  The  causes  rniyht  all  go 
on  the  same  calendar  and  be  tried  in  the  same 
court,  both  law  and  equity  cases,  which  would 
finally  produce  a  blending  of  the  two.  Our  couit.s 
of  law  already  exercise  jurisdiction  in  equity,  in 
many  cases,  which  showd  that  there  is  no  real  ne- 
cessity for  a  separation  of  them.  Many  actions 
in  law  are  analogous  to  the  chapcery  practice, 


s'ich  as  actions  of  repli-vii^  which  returns  to  the 
pirty,  not  damages  merely  ns  in  other  actions  but 
(he  specific  property  claimed,  which  is  precisely 
the  province  of  an  equity  court.  So  suits  of  par- 
tition have  the  same  analogy  to  equity  proceed- 
ings, and  are  brought  either  in  a  court  ot  law  or 
in  chancery  at  the  option  of  the  party,  and 
they  give  title  and  possession  in  both  courts. — 
The  supreme  court  had  exercised  equity  jurisdic- 
tion at  every  special  term.  These  special  terms, 
8  of  them  in  a  year,  are  held  expressly  to  decide 
matters  in  equity,  and  in  many  cases  they  make 
a  decree  like  a  court  of  equity  at  some  length  re- 
quiring specific  acts  to  ba  done  by  the  parlies  mu- 
tually. That  ihedistinctions  in  the  foirnsof  action 
in  suits  at  law  were  not  necessaiy  was  very  clear  to 
his  mind,  and  he  had  an  incident  in  mind  which 
•.vouldshow  it.  He  alluded  to  a  statute  passed  b\  the 
legislature,  doing  away  the  distinctions  between 
actions  of  trespass,  or  actions  for  wrong  commit- 
ted which  resulted  in  damages,  and  actions  on  the 
case,  by  which  statute  the  couits  were  relieved 
from  much  of  the  business  which  lumbered  up 
their  calendars.  His  desire  was  first,  to  have  the 
question  whether  the  jurisdiction  in  law  and  equi- 
ty should  be  brought  into  the  same  court  de. 
cided,  so  that  the  system  of  appointing  judges 
might  be  framed  in  accoidance  with  it.  The  sub- 
ject  of  blending  the  two  piactices  might  after, 
wards  be  settled.  He  therefore  suggested  that 
the  getitleman  from  Clinton  (Mr.  STETSON) 
should  withdraw  his  proposition,  when  he  would 
submit  another  to  effect  what  he  desired. 

Mr.  STETSON  said  he  did  not  favor  the  a- 
mendment  which  he  had  proposed,  and  did  not 
believe  that  the  reform  which  it  seemed  to 
promise  could  be  realized  in  the  extent  antici- 
pated by  it.  The  forms  of  practice,  he  believed 
were  not  the  result  of  arbitrary  rules,  but  existed 
in  reasons  behind  the  causes  themselves.  An  uni- 
formity of  practice  might  be  effected,  but  he  did 
not  believe  that  the  distinction  in  the  various  ac- 
tions at  law  and  equity  could  be  abolished.  He 
was  quite  willing  to  withdraw  his  proposition. 

Mr.  LOOMIS  said  he  \vas  confirmed  in  the  be- 
lief before  expressed,  that  the  difference  was  more 
in  words  than  in  reality.  He  did  not  contemplate 
that  the  form  should  be  the  same  in  all  cases,  but 
he  wished  to  abolish  the  fictitious  forms  under 
which  actions  were  brough*",  which  allowed  of  a 
certain  printed  form  for  all  actions.  There  might 
as  well  be  any  hieroglyphical  symbol  by  which 
to  proceed  as  to  have  forms  printed  in  advance, 
adapted  to  any  state  of  facts  in  that  particular  ac- 
tion, and  which  only  required  the  names  of  par- 
ties to  be  written  in  them.  He  expressed  his  ob- 
ligations tp  Mr.  STETSON  for  withdrawing  his 
proposition,  and  submitted  the  following  in  its 
place : 

§3.  The  judicial  power  of  this  state  shall  he-vested  in 
one  Supreme  Court  subject  to  the  appellate  jurisdiction  of 
the  Court  of  Appeals,  and  in  such  subordinate  courts  as 
shall  be  authorised  by  this  Constitution. 

Mr.  SWACKHAMER  said  that  his  amendment 
would  of  course  have  the  preference ;  but  he 
would  now  withdraw  it  and  accept  the  proposi- 
tion of  Mr.  LOOMIS,  as  a  modification  of  his  own. 

Mr.  MARVIN  said  he  rose  to  take  some  part  in 
the  debate,  deeply  impressed  with  the  magnitude 
of  the  questions  involved  in  it,  and  conscious  of 


591 


his  inability  to  do  justice  to  the  subject.  Save 
those  things  which  affected  man's  eternal 
welfare,  the  human  mind  could  never  be  employ- 
ed in  a  more  exalted  pursuit  than  in  the  adminis- 
tration of  justice  among  men,  in  the  establish- 
ment of  those  great  principles  of  law  and  the 
pearis  of  so  applying  them,  as  to  detect  and  pun- 
ish falsehood,  fraud  and  crime,  and  to  secure  to 
every  member  of  society  equal  and  exact,  justice. 

if  gave  him  great  pleasure  to  witness  the  calm 
and  temperate  manner  in  which  this  subject  was 
discussed.  He  had  not  however  anticipated  that 
it  would  become  necessary  at  this  day  to  enter 
into  a  defence  of  the  very  foundations  of  our  sys- 
tem of  jurisprudence,  a  system  that  had  command- 
ed the  respect  and  the  admiration  of  the  most  em- 
inent, pure  and  enlightened  minds  that  the  world 
had  ever  produced  ;  a  system  doubtless  suscepti- 
ble of  great  improvements  and  upon  which  from 
time  to  time,  since  the  days  of  the  great  Alfred, 
improvements  have  been  made,  as  the  rights  and 
interests  of  society,  in  a  higher  state  of  civiliza- 
tion, have  required.  A  system  undoubtedly  im- 
perfect and  failing  to  accomplish  at  all  times  the 
great  object  of  its  institution  among  men,  to  wit 
the  discovery  of  truth  and  the  establishment  of 
justice.  And  what  system  human  was  perfect  ? 
Perfection  was  not  an  attribute  of  any  thing  that 
emanated  from  man. 

It  had  been  said  by  men  of  great  eminence  that 
the  common  law  was  the  perfection  of  human 
reason,  and  though  he  believed  that  this  eulogy 
was  quite  too  extravagant,  yet  in  his  opinion 
when  it  was  contrasted  with  the  laws  of  other  na- 
tions, when  its  history  was  well  known,  when 
the  influence  which  it  had  exerted  upon  society 
in  diffusing  intelligence,  in  laying  deep  the  foun- 
dations of  liberty  in  an  age  almost  barbarous,  and 
finally,  by  th?  silent  operation  of  its  principles, 
working  out  and  surely  establishing  the  freedom 
of  so  man;  millions  of  the  human  race,  it  was 
deserving  of  very  grave  consideration  how  far  it 
became  them  to  go,  in  the  introduction  of  new 
and  untried  principles  and  practices  calculated  to 
embarrass  and  cripple  the  free  action  of  the  prin- 
ciples of  the  common  law. 

What  was  the  common  law  ?  How  did  it  origi- 
nate ?  It  originated  in  customs,  rules  and  regu- 
lations established  by  society  and  acquiesced  in 
from  their  convenience.  It  had  been  defined  to 
be  that  branch  or  department  of  the  municipal 
law  of  any  state,  which  is  opposed  to  the  edictal, 
legislative  or  other  written  constitutions.  It  con- 
sists of  those  maxims,  customs  and  established 
usages,  which  originating  in  the  peculiar  genius, 
local  situation,  military  institutions,  or  other  cir- 
cumstances of  a  people,  take  root  and  gradually 
spring  up  in  every  country.  Hence  the  different 
parts  of  it  are  not  of  equal  antiquity,  but  have 
been  successively  recognized,  as  the  maxim,  cus- 
tom or  usage  was  found  to  be  consonant  to  the 
public  sentiment  and  had  received  a  general  adop- 
tion. Every  country  had  its  common  law.  But 
the  trial  by  jury  was  peculiar  to  the  English  com- 
mon law  and  of  great  antiquity.  The  common 
law  of  this  country  was  originally  from  England, 
but  it  was  undergoing  changes  to  accommodate  it- 
self to  our  peculiar  circumstances. 

His  honorable  ti  tend  from  .New  York  (Mr.  0'- 
CONOR)  had  objected  to  the  remedial  forms  of 


procedure  which  hud  gro\ui  up  vuih  the  common 
i  tvv,  and  Imd  been  quiie  successful  in  casin.g  ridi- 
cule upon  them,  tor  being,  as  he  alledgts,  ofien 
mere  fictions,  und  /or  containing  much  (hat  was 
mere  form,  and  which  had  now  become  surplus- 
age. He  (Mr  M.)  thought  that  the  forms  now  in 
use  in  pleading  weie  not  obnoxious  to  the  sweep- 
ing objection  of  his  Iriend,  especially  when  he 
took  into  consideration  the  rerneuv,  or  substitute, 
proposed  by  the  gentleman.  It  was  true  thai  some 
of  these  forms  contained  matter  now  no  longer 
necessary,  and  which  a  gocd  practitioner  now  in 
drafting  his  pleadings  often  oinits.  Originally  this 
very  matter  was  necessary,  arid  was  a  part  of  the 
history  of  the  case.  Take  the  action  of  trover,  to 
which  (he  gentleman  had  referred.  Originally 
this  action  was  only  resorted  to  in  a  case  where  the 
plaintiff  had  actually  lost  his  property  and  it  had 
come  to  the  possession  of  the  defendant,  by  find- 
ing, and  he  had  con  vet  ted  K  ;  and  the  ioiu'j  u  (ne 
pleading  is  the  shortest,  most  simple,  and  at  the 
same  time  comprehensive,  that  could  be  invented 
And  he  (Mr.  M.)  would  have  selected  ihe  declara- 
tion in  an  action  of  (rover,  as  a  beautiful  illustra- 
tion of  the  simplicity  of  the  common  law  forms 
and  the  happy  facility  of  the  common  law  m  prol 
vidirig  short  forms  for  the  redress  of  grievances 
And  as  the  action  of  trover  did  not  now  depend 
upon  the  questions,  of  Ihe  loss  of  the  chattel  by 
the  plamtirf,  and  the  FINDING  of  it  by  the  defend- 
ant; but  was,  as  a  remedy,  extended  to  all  cases 
where  the  defendant  had  wrongfully  taken  or  con- 
verted the  property  of  the  plaintiff;  all  the  gen- 
tleman had  to  do,  was  to  omit  five  or  six  lines  in 
the  form,  and  his  declaration  would  dt-sciibe  the 
case  truly,  and  with  a  brevity  unknown  to  any 
system,  other  than  the  common  Jaw.  But  what 
reform  did  the  gentleman  propose  ?  Why,  simply 
this— that  the  party  should  tell  his  stoiy  just  as  jV 
was.  This  certainly  appeared  lo  be  a  veiy  simple 
and  easy  rule;  but  how  had  it  proved  in  practice, 
and  how  would  it  prove  ?  It  had  been  tested  It 
was  the  rule  of  the  civil  law,  and  this  rn.de  of 
procedure  was  now  in  full  operation  in  France, 
and  on  the  Continent  of  Europe,  where  they  foil 
lowed  the  civil  law  forms,  ms  ead  of  the  common 
law  forms.  And  what  was  the  result?  Why,  that 
the  civil  law  forms  were  incomparably  more' pro- 

lix,  more  complicate  d,  more  difficult  to  prepare 

so  much  so,  that  none  but  those  learned  in  the 
law,  were  ever  ent.  usted  with  their  p.eparaiion 
The  whole  glory  must  he  told.  Thtie  would  be 
vastly  many  more  m.s  akes  under  such  a  sysietn. 
ihan  under  the  common  laws\siem.  it  v\0ul<f  be 
almost  impossible  to  classify  the  remedies,  us  e.idi 
case  would  rest  upon  us  own  pait,eul,,i  cncum- 
stances  and  require  its  own  |,,rm.  \Y  he.ea*  a  had 
been  supposed  that  (he  common  law  had  accom- 
plished a  great  triumph,  when  it  had  reduced  the 
remedie*  to  so  few  aciion*,  and  had  classified  and 
defined  them  with  bo  much  accuracy  that  mistakes 
could  seldom  happen.  The  difference  between 
the  common  law  forms  of  procedure  and  the  civi! 
was  si:nply  i  his— by  the  former,  the  conclusion 
or  result  only  of  a  great  vaiiety  ( 1  tacts  and  cir- 
cumstances was  staied  or  averred  and  the  le-ral 
cons'-quence  following  t her efrott  was  alUd--td— 
leaving  the  Rreat  variety  ol  facts  and  circumsian- 
ces  to  the  proof  upon  the  trial.  Whereas,  by  the 
latter  all  the  facts  and  circumstances  were  stated 


592 


with  a  prolixity  entirely  unnecessary  in  a  system 
which  employed  a  jury  to  find 'the  facts,  and  en- 
tirely unendurable  in  a  country  like  this.  The 
pleadings  in  chancery  were  taken  from  the  civil 
law  forms  of  procedure.  He  (Mr.  M  )  had  no  de. 
sire  to  introduce  that  mode  of  procedure  into  our 
courts  of  law;  he  preferred  the  brevity  and  sim- 
plicity ot  the  common  law  forms— purified,  shorn 
of  their  redundancies,  and  made  what  they  were 
originally  intended  to  be — a  simple  statement  of 
the  legal  claim  of  the  party. 

Mr.  M.  said  that  they  heard  a  great  deal, 
at  the  present  day,  about  reforms,  and  almost  eve- 
ry one  had  become  a  zealous  reformer.  The  whole 
machinery  of  governments,  in  the  estimation  of 
some  was  entirely  worthless,  and  should  be  des-. 
troyed,  and  its  plan  should  be  supplied  by  the 
productions  of  modern  genius.  Our  fathers  had 
done  nothing  right.  For  one  he  was  not  opposed 
to  reform,  he  claimed  to  be  an  ardent  and  zealous 
reformer.  But  in  what  did  reform  consist?  What 
Was  reform  ?  Did  it  consist  in  eternal  changes, 
in  constant  revolutions?  Was  every  change  a 
reform?  No,  sir,  there  was  a  wide  difference  be- 
tween the  two.  True  reform  consisted  in  correct- 
ing the  errors  of  the  past,  when  clearly  ascertain- 
ed by  experience,  holding  fast  to  all,  that  experi- 
ence had  proved  to  be  good  and  useful,  and  en- 
grafting upon  our  present  institutions  those  prin- 
ciples which  the  experience  of  other  States  have 
shown  to  be  sound,  practicable  and  useful,  or  in 
the  absence  of  such  experience,  those  principles 
which  enlightened  reason  assured  them,  when 
put  in  practice,  would  accomplish  the  object  de- 
signed He  believed  he  possessed  as  much  moral 
courage  as  most  men,  but  he  confessed  he  had 
not  courage  or  temerity  enough  to  lay  a  ruthless 
hand  upon  any  of  the  great  institutions  of  their 
fathers,  until  his  judgment  was  entirely  satisfied 
that  the  sacrifice  was  necessary,  and  that  they  pos- 
sessed wisdom  enough  to  erect  other  edifices  more 
beautiful,  more  useful  and  more  enduring,  than 
those  they  were  called  upon  to  destroy.  Were  it 
not  for  the  great  confidence  he  reposed  in  the  in- 
telligence and  integrity  of  the  people  of  the  State, 
he  should  have  been  alarmed  at  some  of  the  start- 
ling  measures  of  reform,  so  called,  which  he  had 
seen  suggested.  It  was  but  a  tew  days  s'nce  that 
he  had  read  in  one  of  the  most  extensively  circu. 
lated  newspapers  in  the  State,  a  communication 
suggesting  the  abolition  of  all  courts  of  justice, 
above  those  of  a  justice  of  the  peace,  and  alleging 
that  these  courts  were  all  that  the  people  wanted 
or  required.  Let  the  Justice  hear  the  cause  and 
decide  it,  though  it  involved  thousands,  and  with 
his  decision  let  the  parties  be  content!  All  these 
appeals  and  reviews  were  only  for  the  benefit  of 
the  lawyers  ;  the  people  did  not  desire  them! — 
What  think  you,  Mr.  Chairman,  of  such  reform 
as  this  ?  Why,  sir,  (said  Mr.  M.)  it  has  ever 
been  held  that  judicial  discretion  was  judicial 
despotism,  and  under  the  system  suggested  what 
should  they  have  but  the  unlimited  discretion  of 
a  single  magistrate,  who  knew  his  judgment  could 
not  be  reviewed.  How  long  would  it  be  before 
justice  would  be  bought  and  sold,  as  it  had  been 
in  other  countries,  where,  like  other  things,  it 
was  a  commodity  in  the  market  ?  Where  would 
be  the  security  of  the  poor  man  in  a  struggle  with 
the  rich  ?  Doubtless  for  a  long  time,  from  the  na- 


tural integrity  of  the  peopte,  a  great  majority  of 
their  magistrates  would  remain  uncorrupted,  but 
the  removal  of  all  accountability  and  restraint,  in- 
vited corruption.  What  was  it  that  rendered  the 
whole  administration  of  justice  in  this  State  so 
pure  ?  In  what  did  the  safety  of  the  citizen  con- 
sist ?  How  did  it  happen  that  so  much  confi- 
dence was  reposed  in  the  legal  tribunals  ?  Will 
it  be  said  that  it  is  owing  to  the  integrity  of  the 
magistracy  ?  But  to  what  is  this  integrity  owing  ? 
Is  not  human  nature  the  same  as  it  ever  was  ? — 
and  under  a  different  system  of  jurisprudence 
might  it  not  in  time  become  corrupted?  They 
must,  in  his  opinion,  look  deeper  for  the  solution 
of  the  interesting  questions  propounded,  and  they 
would,  he  thought,  find  that  the  principle  which 
had  always  prevailed,  that  all  the  decisions  and 
acts  and  doings  of  these  legal  tribunals,  were  at 
the  will  of  any  party  affected,  subject  to  be  re- 
viewed by  a  court  of  higher  jurisdiction,  having 
the  authority  to  revise  the  decisions  of  the  lower 
tribunals,  until  by  successive  gradations,  the 
court  of  last  resort,  in  which  the  majesty  and  jus- 
tice of  the  whole  State  was  represented,  had  been 
reached.  He  confessed  that  he  should  not  feel 
safe,  under  any  system  of  jurisprudence  which  de- 
prived the  humblest  citizen  in  the  land  of  the 
right  to  have  the  judgment  of  a  court  repiesent- 
irig  the  entire  majesty  and  the  entire  justice  of 
the  whole  State.  Not  that  he  encouraged  ap- 
peals; far  from  it,  but  judicial  discretion  and  irre- 
sponsibility conferred  upon  courts  of  inferior  ju- 
risdiction would  be  a  despotism  which  in  time 
would  become  unendurable.  He  should  advert 
to  this  topic  again  in  connection  with  the  judi- 
ciary system  reported  by  the  committee  now  un- 
der consideration,  as  he  apprehended  thai  it  was, 
among  other  things,  obnoxious  to  some  of  the  ob- 
jections he  had  suggested  in  relation  to  judicial 
irresponsibility. 

In  approaching  the  consideration  of  judicial  re- 
form, it  was  important  to  ascertain  what  were  the 
evils  under  which  they  were  now  suffering,  and 
then  endeavor  wisely  to  apply  the  proper  remedy. 
He  believed  that  there  were  some  radical  defects 
in  the  system  itself,  but  the  great  difficulties  and 
embarrassments  under  which  they  were  now  suf- 
fering, arose  mainly  from  an  entire  inability  on 
the  part  of  the  higher  courts,  to  transact  the  bu- 
siness thrown  upon  them.  Hence  t.he  whole  sys- 
tem had  become  paralyzed,  and  the  delays  arising 
from  such  a  state  of  things,  went  far  towards  a 
denial  of  justice.  No  people  could  long  endure 
such  a  state  of  things.  The  evils  were  not  con- 
fined to  the  suitors  alone,  but  they  extended  into 
every  ramification  of  society,  paralyzing  enter- 
prise and  carrying  disease  into  the  vitals  of  the 
whole  body  politic.  What  did  they  desire  ? — 
What  was  the  object  of  a  judiciary  system  to  a 
people  governed  by  laws  ?  There  should  be  a 
sufficient  force  at  all  time  to  hear  all  complaints 
and  to  carry  into  effect  the  injunctions  of  the 
law.  Some  had  supposed  that  the  laws  might  be 
so  simplified  that  all  could  understand  them  alike, 
and  that  they  would  require  no  explanation  or 
construction  from  any  court.  Arid  they  were  dis- 
posed to  attach  blame  to  the  legislature  for  not 
having  so  framed  the  statutes  that  no  doubt  or  dif- 
ficulty should  ever  arise  in  their  construction  or 
application.  He  had  often  been  interested  in  lis- 


593 


tening  to  these  complaints,  and  had  endeavored 
to  satisfy  his  friends  that  their  complaints  against 
the  legislature,  were  generally  unfounded.  That 
the  legislature  endeavored  to  make  the  laws  as 
clear  and  perspicuous  as  possible,  and  that  the 
difficulty  lay  in  the  imperfection  of  language, 
the  impossibility  of  forseeing  all  the  circumstan- 
ces that  should  arise,  and  he  had  referred  them  to 
the  fact  that  the  scriptures  written  by  inspiration, 
were  the  subject  of  many  conflicting  commenta- 
ries and  constructions,  giving  rise  to  numerous 
sects.  This  was  owing  to  the  imperfection  of 
•language.  So  it  was  with  the  laws.  Two  men 
put  different  constructions  upon  the  law.  Their 
rights  were  to  be  affected  by  it.  They  could  not 
agree.  What  was  to  be  done  ?  There  must  be 
authority  somewhere  to  construe  the  law,  and 
decide  between  them.  Hence  the  necessity  of 
courts,  even  if  all  mankind  were  disposed  to 
fulfil  their  obligations  in  pursuance  of  the  re- 
quirements of  law.  But  all  men  were  not  always 
willing  to  fulfil  their  obligations  and  obey  the 
injunctions  of  the  law,  and  their  obedience  must 
therefore  be  compelled.  Hence  the  absolute  ne- 
cessity of  an  efficient  judiciary  system  for  the 
prompt  enforcement  of  rights  and  the  redress  of 
wrongs,  without  which  society  would  soon  be  re- 
solved into  its  original  elements,  and  civilization 
would  take  its  departure  from  among  men. — 
Complaints  were  often  made  of  the  amount  of  lit- 
igation in  this  country.  He  admitted  that  it  was 
an  evil  All  litigation  was  undoubtedly  an  evil. 
That  state  of  society  in  which  every  member  of 
it  performed,  without  compulsion,  all  his  duties 
and  obligations,  and  abstained  from  all  encroach- 
ments upon  the  rights  of  others,  would  indeed  be 
a  most  happy  state.  But  he  never  expected  to 
witness  a  state  of  things  like  that.  On  the  con- 
trary, in  a  free  country  like  this,  there  would  al- 
ways .be  litigation.  A  country  where  every  man 
was  the  equJ  of  his  fellow-man,  where  every 
citizen  hid  a  right  to  prefer  his  complaints  and 
demand  a  patient  hearing,  where  every  one  enjoy- 
ed the  right  of  launching  upon  the  great  ocean  of 
enterprise  his  little  ship  whose  flag  was  entitled 
to  respect,  where  the  relation  of  lord  and  vassel 
did  not  exist ;  where  freedom  was  the  birth-right 
of  all,  in  such  a  country  and  among  such  a  people, 
there  would  be  litigation.  Men  would  defend 
their  rights  from  all  encroachments.  There 
might  be  and  doubtless  often  was  an  excess  of  lit- 
igation, it  was  one  of  the  penalties  paid,  as  a  part 
of  the  price  of  liberty  itself. 

Our  judiciary  system  was,  in  tne  main,  a  good 
one,  but  like  every  thing  else  it  was  liable  to  a- 
buses  and  to  derangement.  And  it  was  the  duty 
of  all  to  unite  their  efforts  in  removing  these 
evils. 

What  did  the  people  desire  ?  What  did  they 
need  ?  First  it  was  desirable  in  every  judiciary 
system,  that  the  administration  of  justice  should 
be  brought  home,  not  literilly  to  every  man's 
door,  but  into  his  neighborhood,  within  a  reasona- 
ble and  convenient  distance.  Secondly,  justice 
should  be  promptly  administered,  without  un- 
reasonable delay,  that  every  individual  should  be 
as  nearly  as  possible,  in  the  constant  enjoyment 
of  all  his  rights.  Thirdly,  these  rights  should  be 
secured  at  a  moderate  and  reasonable  expense. — 
Litigation  in  our  courts  of  record  in  this  State, 

49 


had  become  too  expensive,  and  a  reform  should  be 
effected.  But  did  not  this  system  contemplate 
the  accomplishment  of  all  the  objects  he  had  in- 
dicated ?  True  it  had  failed  in  some  respects, 
as  he  should  endeavor  to  show,  and  should  sug- 
gest what  be  believed  to  be  the  proper  remedies, 
still  with  all  its  faults,  when  compared  with  the 
system  of  other  countries,  he  believed  it  would  be 
found  to  have  accomplished  in  a  higher  degree, 

the  objects  of  its  institution,   than  any  other. 

The  great  Alfred  of  England,  in  order  to  bring 
justice  home  to  every  man's  door,  established  as 
many  courts  of  judicature  as  there  were  manors 
or  townships  in  the  kingdom  ;  wherein  justice  was 
redressed  in  an  easy  and  expeditious  manner,  by 
the  suffrage  of  neighbors  and  friends. 

This  was  a  happy  thought.  It  familiarized 
the  people  with  the  administration  of  justice.  It 
taught  them  to  protect  and  preserve  their  individ 
ual  rights,  and  invited  them  to  a  knowledge  of  the 
laws.  The  introduction  of  a  valuable  principle 
into  society,  often  produced  results  of  the  gre'at- 
est  consequence,  whose  influence  was  felt  for 
ages  in  forming  the  character  and  habits  of  a 
people.  And  who,  at -this  day,  would  under- 
take to  say  how  much  the  people  of  England  and 
this  country  were  indebted  to  the  wise  systeiri  of 
jurisprudence,  introduced  by  Alfred?'  Who 
would  undertake  to  say  that  it  had  not  exerted  a 
great  influence,  in  diffusing  information  among 

the  people  and  accomplishing  their  freedom  : 

He  would  bring  justice  home  to  the  people.  HH 
did  not  propose,  at  this  time,  to  remark  upon  the 
justices'  courts,  further  than  to  say  that  in  his 
opinion  they  had  in  the  main  faithfully  perform- 
ed their  duties,  and  answered  the  purposes  de- 
signed by  their  establishment.  He  would  pro- 
ceed to  speak  of  the  other  courts,  and  consider 
the  judiciary  system  reported  by  the  committee. 
He  should  speak  with  all  freedom,  but  at  the  same 
time  with  great  respect  for  each  and  every  mem- 
ber of  that  committee  who  had  assented  to  the 
report.  He  should  not  criticise  it  in  detail,  but 
should  confine  his  remarks  to  the  system  itself, 
and  the  mode  of  employing  the  judicial  force 
which  it  provided.  He  was  aware  of  the  great 
difficulties  involved  in  the  subject,  and  he  had 
resolved  for  himself  to  examine  most  favorably 
the  plan  of  the  committee  and  to  give  it  his  sup'- 
port,  if  in  his  judgment  it  obviated  the  difficul- 
ties under  which  they  were  now  laboring,  and 
would  accomplish,  in  a  tolerable  degree,  what  all 
so  ardently  desired.  He  had  been  unable  to  sat- 
isfy himself  that  the  system  recomeaded  would 
and  could  operate  satisfactorily.  He  hoped,  if 
it  was  to  be  adopted,  that  time  would  show 
that  he  was  mistaken. 

The  plan  of  the  committee  united   in  the  same 
fcourt  the  practice  of  law   and   equity;  in   other 
[words,  it  abolished  the  court  of  chancery  and  con- 
ferred upon  the  courts  of  law  the  powers  and  du- 
jties  now  exercised  and  performed  by  the  court  of 
.Chancery,     lie  thought  they  were  about  to   cqm- 
Vnit  a  great  error   in  thus   uniting   in    the  .same 
court,  those  powers  and  duties  which  had  always 
in  this  State  been  kept  and  preserved  in  separate' 
jurisdictions.     No  one  proposed  to  abolish  equity' 
law.     It  seemed  to  be  conceded  by  all  that   those   '" 
great  principles  of  equity  justice,  which  formed 
so  essential  a  part  of  their  system  of  jurispru- 


594 


dence,  must  be  preserved  and  must  be   adminis- 
tered in  some  form.     How  could  this  last  be  done? 

A  certain  amount  of  judicial  force  was  necessary, 

to  transact  the  business  promptly,  wisely  and  ef- 
ficiently.    Certain  portions  of  that  business  were 

transacted  in  accordance  with  the  common  law 

mode  of  procedure,  which   employed  a  jury  for 

the  ascertainment  of  disputed  facts.     This  was 

by  far  the  largest  portion.     Another  portion   had 

been  performed,  and  must,   as   he   believed,   be 

performed,  without  the  aid  of  a  jury.     Here  was 

a  natural  line  of  separation,   and   in  his  opinion 

the  whole  judicial  business  of  the  State  could  be 

done  with  a  less  amount  of  judicial  force  and  at 

less  expense,  and  far  better,  by  preserving  sepa- 
rate courts,  than  by  uniting  them.  If  this  was, 

as  a  matter  of  fact,  true,  then  he  submitted  that 

gentlemen  who  desired  wise  reform,   instead   of 

mere  change,  should  go  with  him  for  a  separate 
organization.  He  was  willing  to  put  the  whole 

question  upon  this  ground.  He  was  not  one  of 
those  who  believed  that  equity  and  law  were  so 
different  that  the  same  mind  could  not  compre- 
hend and  administer  both.  On  the  contrary,  he 

believed  that  to  be  a  good  lawyer,  a  man  must  be 
well  informed  in  the  principles  of  the  law,  as 
administered  in  both  the  equity  and  common  law 
courts.  Still,  any  man  would  acquire  a  greater 
facility  in  the  despatch  of  any  business  to  which 
his  whole  attention  was  confined,  than  he  would 
if  compelled  to  devote  himself  to  a  great  variety 
of  pursuits. 

The  mode  of  proceeding  in  Ihe  two  courts  was 
essentially  different,  and  it  must  continue  to  be 
so.  And  in  all  tnose  couris,  where  law  and  equi- 
ty were  united  in  Ihe  same  tribunal,  theie  was  an 
equity  side  of  the  court,  and  a  law  side,  so  called. 
Mr.  Blackstone,  in  speaking  of  courts  ol  law  and 
equity,  enquires — "  Wherein  does  their  essential 
difference  consist?  It  principally  consists  (says 
he)  in  the  different  modes  of  administering  jus- 
tice in  each,  in  ihe  mode  of  proof,  ihe  mode  ol 
trial  and  the  mode  of  relief."  He  (Mr.  M.)  could 
proceed  at  length  and  point  out  the  difference  in 

the  practice  of  ihe  two  courts,  but  he  must  con-  cause  before  an  examiner,  was  liable  to  great  ob- 
tent  himself  with  a  mere  reference  to  the  subject,  j  Jections  and  led  to  great  abuses.  The  offices  of 
In  a  cou.t  of  law,  the  lacts  and  damages  having  I  Master,  Exception  Master,  and  Examiner, 
been  ascertained  by  the  verdict  of  the  jury,  the  (should  be  abolished,  and  the  evidence  should  be 


or  interest   in  lands,  should  be  void,    unless  ihe 
contract  or  some  note  or  memorandum  thereof  ex- 
pressing the  consideration  be  in  writing,  and  be 
subscribed  by  the  party  by  whom  the  sale  was    to 
be  made.     This  was  a  positive  statute,  and  no  man 
could  be  defrauded  out  of  his   land  by   the  perju- 
ries   ot  any  one,  or    by  a  contract    unless    it   was 
written,  arid  signed  by  him.     This  was  an  impor- 
tant law  for  the  safety  of  all.     And  yet  every  one 
could  see,  that  cases  might  arise  when  the  great- 
est  fraud   and  injustice    might  be  done,   by  car- 
rying   it  literally  into  effect.     A  man  enters   into 
a  parol  contract  for  the  purchase  of  land,  enters 
into  the  possession  and  makes  valuable  improve- 
ments, and  pays  a  part  of  the  purchase  money, 
and  then  the  owner  refuses  to   convey.     Every 
one   would  see  that  it  would  be  a  fraud  on  the 
part  of  the  vendor  to  refuse.     In  such  a  case  a 
Court  of  Equity,  acting  upon  the  equity  of  the 
statute,    would  give  relief  and  decree  a  specific 
performance  of  the  contract,  if  the  vendor  had  it 
in  his  power   to  make   title,  and  would  compel 
him  to  convey  the  land.  He  was  satisfied  a  Court 
of  Equity   was   indispensible   in   a  country   like 
this,  and  without  it  justice  could  not  be  success- 
illy  administered.     He   desired  that  very  great 
reform  should  be  effected  in  the  court.     A  large 
Dortion    of  the   business  now  done  in  that  court 
could  and  ought  be  done  in  the  courts  of  law.     He 
,vould  transfer  to  the  courts  of  law   all  the  busi- 
ness that  could  be  done   there.     The   court  had 
alien  into  disrepute,  partly  by  its  own  fault,   but 
mainly  in  consequence  of  the  large  amount  of  bu- 
siness which  had  been   thrown  into  it.     A  thor- 
ough  reform   should  be    effected  in   its   forms. 
They  should  be   simplified  and  abbreviated,  and 
the  expense   of  obtaining  justice   in   that  court 
should  be  greatly  reduced.     In  his  judgment  an 
ordinary  Chancery  suit  ought  not  to  cost  the  par- 
ties any  more  than  a  simple  suit  at  law.  •  And 
equity  justice  should   be   administered  in  every 
county  in  the  state,  with  the  same  ease  and  sim- 
plicity  that  a  cause  was  tried  in  a  court   of  law. 
he  system  of  taking  the  evidence  in  a  chancery 


judgment  of  the  law  immediately  followed.  No 
further  directions  were  necessary  Irom  ihe  judge 
or  the  court,  but  the  law  had  defined  and  directed 
what  was  to  be  done,  and  had  placed  the  remedies 
io  the  hands  of  Ihe  party  in  whose  favor  the  jury 
had  pronounced.  JNot  so  in  a  court  of  equity: 
there  special  directions  were  often  necessary,  and 
the  party  against  whom  the  decree  was  made,  was 
directed  to  do  some  act — inderd  boih  parties  arid 
all  parties  to  the  suit  were  often  required  to  do 
some  specific  act  or  act*,.  A  court  ot  law  pro. 
c^eded  upon  general  rules,  often  arbitrary  and  in- 
flexible, and  which  generally  operaied  justly,  but 
a  strict  adhecence  to  which,  would  sometimes 
produce  the  greatest  injustice,  and  a  court  ot  equi- 
ty then,  pioceeding  upon  well  established  princi- 
ples, and  examining  all  the  peculiar  circumstan- 
ces, would  afford  iclief.  To  illustrate  the  differ 
ence.  In  order  to  render  more  secu.-e  a  man's 
right  to  real  estate,  and  to  avoid  the  danger  of 
perjuries,  it  had  been  deemed  wise  to  declare  b) 
law  that  every  contract  for  the  sale  of  any  lands 


taken  before  the  Equity  judge,  who  was  to  make 
the  decree  and  give  the  relief.  He  should  before  he 
sat  down,  submit  a  plan  for  the  re-organization 
of  the  Courts,  which  he  believed  would  relieve 
them  from  all  the  difficulties  under  which  they 
were  laboring,  would  enable  the  legislature  to  ac- 
complish all  the  reforms  which  he  had  indicated, 
and  which  all  so  much  desired.  He  would  pro- 
ceed to  a  further  consideration  of  the  plan  of  the 
committee.  It  contemplated  the  destruction  of 
the  County  Courts  —  the  Courts  of  Common 
Pleas.  He  confessed  he  was  greatly  surprised  at 
this,  and  somewhat  alarmed.  He  did  not  believe 
the  people  were  prepared  for  the  overthrow  of  the 
County  Courts  and  tha  establishment  of  one  great 
Court  of  thirty-two  judges,  cut  up  and  divided 
into  fragments. 

He  was  aware  that  the  county  courts  in  many 
parts  of  the  State,  had  failed  to  secure  the  confi- 
dence of  the  people.  But  was  there  not  a  good 
cause  for  it  ?  It  had  fallen  under  the  baneful  in- 
fluence of  the  party  county  caucus  system.  And 


595 


the  Governor  was  no  longer  left  free  to  act  in  th 
selection  of  the  best  men.     Its  organization  w 
.  :md  it  was  surprising  to  him  th 
it  had  boon  uble  to  accomplish  as  much  as  it  ha 
;cad  of  being  destroyed,  however,  he  would  r 
organise  it,  in  a  manner  and  with  a  view  of  mat 
it  the  very  best  court  of  original  jurisdictio 
in  the  State,  for  the  transaction  ot  the  business  i 
the  county.     The  people  had  a  right   to  deman 
thi^,  in  order  that  they  might  do  their  business 5 
home,  in  a  court  of  original  jurisdiction,  in  whic 
an  able  and  competent  judge  should  preside.    B 
he  would  recur  to  this  subject  again.     He  woul 
now  endeavor  to  ascertain  what  the  system  re 
commended  by  a  majority  of  the  committee  weu 
It  contemplated  the  election   or   appointment   < 
*hirty-two  judges,  all  members  of  the  samecour 
and  which  was  denominated  the  Supreme  Cour 
It  proposed  to  divide  the  State  into  eight  districts 
in  each  of  which  there   should  be  four  judges  o 
this   Supreme   Court.      Four  of  the   thirty-tw 
judges,  whose  term  of  office  was   first  to  expire 
were  to  go  into  the  court  of  appeals,  the   court  c 
last  resort,  to  which  court  were  to  be  added  fou 
others,  who  were  to  be  members  of  the  court  o 
appeals  only,   thus   making  thirty-six   in   alj^a 
Thirty-two  of  whom'  uuiistituUrd  th"e~TSruprem 
Court,    which    was    to    transact    all   the    busi 
ness  in  law  and  equity,and  to  take  the  place  of  th 
present   courts  of  the  chancellor  and  vice  chan 
cellors,  the  supreme  court,  the  circuit  courts,  an 
lifty-nine  courts  of  common  pleas,  and  three  hun 
dred  and  fifty  six  masters  and  examiners  in  chance 
ry.   fThese  thirty-two  judges,  or  if  lour  of  then 
should  be,  (as  they  would  be,)  constantly  employ 
ed  in  the  court  of  appeals,   twenty-eight  judges 
were  to  hold  circuits  in  ali  the  counties,  for   th 
trial  of  all  cases  pending  in  the  court  and  all  cau 
ses  brought  into  the  court  by  appeal  from  justi 
ces'  co.urts,  and  for  the  hearing  before  the  judgi 
of  all  equiiy  causes,  the  evidence  to  be  taken  be 
fore  the  judge,  and  also  the  trial   of  all   crimina 
cases      These  judges  were  to  be  confined  to   n< 
particular  part  of  the  State,  but  were  respectivel; 
to  hold  circuits  in  all   parts  of  the   State.     An) 
three  of  these  judges  wei e  to  constitute  the,  or  a 
supreme  court  in  bane,   to  hear   and   determine 
questions  of  laws,  so  that  there  might  be  eight  o 
nine  of  these  supreme  courts  so  called  in  session 
at  the  same  time,   the  terms  being  held   at  dif- 
ferent times  and  in   different  places,   the  judges 
holding  sessions  in   bane  ;    might  be   constantly 
changing  by  a  change  of  the  judges.     This  was  a 
brief  outline  of  the  system.    It  was  an  entire  depar- 
ture from  our  present  system  and  unlike  anything 
he  would  venture  to  say,  that  had  ever  been  in- 
vented.   He  did  not  like  it.    It  made  an  unfavora 
ble   impression  upon   his   mind.       He  could  no 
get  rid  of  the  conviction  that  it  would  prove .a. 
failure.       If  it  was   to  be    considered  as    the  su- 
preme court  broken  into  fragments,  or  as  a  sys- 
tem of  district  courts  of  co-ordinate  jurisdiction. 
whose  judges  interchanged,  formed  and  reformed 
their  courts,  and  mixed  all  up  together,  and  haV 
ing  as  a  whole  the  entire,  exclusive  jurisdiction 
of  all  matters  affecting  the  people  in  law  or  equi- 
ty, he  objected  to  it  as  a  dangerous  system.       He 
submitted    whether    such  a  court  composed    ol 
such  a  number  of  judges,  uninfluenced  by  other 
courts,  might  not  become  intolerant,  overbear- 


ing, dictatorial,  and  in  time  dangerous  ?  He 
would  not  pursue  the  idea,  But  in  his  judgment 
the  court,  or  the  judges  could  not  transact  the 
business,  and  he  believed  it  would  break  down 
from  its  own  weight,  and  from  the  manner  in 
which  the  force  was  organized  and  was  to  be  em- 
ployed. He  had  always  supposed  that  there  was 
an  important  principle  involved  in  the  gradation 
of  courts  and  in  the  division  of  labor.  This  plan 
puts  all  upon  a  common  level,  and  mixes  all 
things  together,  and  sets  all  the  force  employed 
at  work  upon  all  the  kinds  of  business  to  be  done, 
and  no  decision  made  by  any  of  them  or  any  of 
the  courts,  would  be  binding  upon  any  of 
the  rest  of  them,  or  any  court  in  bane  composed 
of  other  men,  though  they  all  belonged  to  the 
same  supreme  court.  What  would  be  the  effect 
of  this?  Why,  conflicting  divisions  constantly  as 
the  courts  in  bane  should  be  held  by  different 
men,  and  this  to  be  followed  by  constant  appeals 
to  the  court  of  last  resort.  No  one  would  rest 
satisfied  with  the  decision  of  the  one-eighth  or 
one-ninth  part  of  the  court;  representing  only 
one-eighth  part  of  the  State.  The  system  itself 
would  invite  appeals,  and  the  court  of  appeals 
in  his  opinion,  would  be  overwhelmed  in  two 
years.  The  court  of  appeals  would  occupy  the 
place  that  the  supreme  court  now  did.  It  could 
not  stand  the  avalanch  that  would  be  poured  in 
upon  it. 

But  let  us  (said  Mr.  M.)  return  to  the  circuits, 
of  which  there  must  be  probably  three  or  four  in 
each  county  at  least.  And  what  should  they  find 
there  ?  A  calendar  composed  of  all  those  causes 
now  found  upon  the  circuit  and  common  pleas 
calendars,  and  also  all  the  criminal  business  now 
disposed  of  by  the  courts  of  oyer  and  terminer, 
and  the  general  sessions  of  the  peace.  Now  how 
^ong  would  the  suitor  be  obliged  to  attend  court 
with  his  witnesses  before  he  could  obtain  a  hear- 
ng  ?  But  the  civil  and  criminal  business  was 
disposed  of  the  jury  was  dismissed,  and  what  fol- 
owed  ?  Unless  the  j  udge  is  compelled  to  depart  to 
the  next  county  to  hold  his  court  there,  he  will 
open  his  court  of  equity  and  enter  upon  the  hear- 
ng  of  witnesses  and  taking  notes  of  the  evidence, 
sitting  now  as  an  equity  judge.  If  he  has  suffi- 
cient time  to  hear  all  the  evidence  in  his  equity 
cause  or  causes,  if  the  witnesses  are  all  in  attend- 
nce,  if  when  the  evidence  is  closed,  the  counsel 
are  ready  to  argue  their  cause,  and  if  the  judge  is 
•eady  on  the  spot,  without  time  to  examine  au- 
horities,  to  make  his  decree,  then  it  will  all 
work  very  well;  but  suppose  some  of  the  evidence 
s  absent,  or  the  counsel  desire  some  further  time 
o  prepare  for  the  argument  of  the  cause,  or  the 
udge  wants  time  to  examine  further.  What  then  ? 
The  whole  system  of  trying  equity  causes  has  fail- 
id,  for  when  the  judge  leaves  the  county  you  may 
lot  see  him  again  in  three  years,  as  these  judges 
re  to  be  flying  all  over  the  state  like  a  flock  of 
igeons. 

The  truth  is,  you  must  have  a  localized  judge ; 
ne  who  is  confined  to  a  district  of  reasonable  ex- 
ent,  before  whom  to  transact  this  equity  busi- 
less,  if  the  office  of  Examiner  is  to  be  abolished, 
nd  all  agree  that  it  ought  to  be,  and  that  the 
vidence  should  be  taken  before  the  Vice  Chan- 
ellor  or  judge  who  is  to  make  the  decree. — 
But  suppose  the  judge  has  had  time  to  try  the 


596 


equity  cause,  and  has  made  the  decree,  and  one 
of  the  parties  is  not  satisfied — what  then  ?  An 
appeal  lies,  I  suppose,  to  one  of  these  Supreme 
Courts  in  bane.  This  appeal  must  go  up  on  a 
case  containing  the  facts,  to  be  agreed  on  by  the 
parties,  or,  which  will  generally  be  the  case,  to 
be  settled  by  the  judge  who  tried  the  cause. — 
Now,  where  am  I  to  find  the  judge  to  settle  the 
case  ?  Perhaps,  sir,  in  Clinton  county,  holding 
a  circuit,  or  sitting  in  bane,  as  a  member  of  one 
of  these  branches  of  the  Supreme  Court.  But, 
air,  with  a  great  deal  of  trouble  the  case  is  settled 
and  appealed  to  one  of  the  Supreme  Courts,  com- 
posed of  any  three  of  these  thirty-two  judges,  and 
then  the  cause  is  to  be  argued,  and  then  either 
party  may  appeal  to  the  court  of  appeals.  This 


conclusion  of  his  remarks  submit  a  plan  which  he 
had  drawn  up.  He  agreed  with  his  friend  from 
Columbia  (Mr.  JORDAN)  that  it  was  but  fair  that 


he   who  found    fault 


with  the  plan 


by 


the  committee  ought  to  present  'something  which 
he  believed  to  be  better.  He  had  started  with  the 
idea  that  it  was  better  to  reform  than  to  destroy, 
In  the  language  of  Mr.  Van'Buien  in  the  Conven- 
tion of  1821,  he  believed  that  "if  there  were  de- 
fects in  the  system  as  now  exist  i  Jig,  let  them  be 
corrected—  let  us  amend,  not  destroy  ."'  He  (Mr. 
M,)  saw  established  in  every  county  of  the  Slate 
a  county  court,  of  original  jurisdiction,  confined 
to  the  county,  and  which,  though  defectively  01- 
gariized,  had  transacted  a  v?st  amount  of  business 
in  the  trial  of  causes  reviewing  the  decision  of 


carinot  work  well.  How  are  all  these  motions  in  !  the  justices,  and  hearing  and  deciding  a  laige 
equity  causes  to  be  heard,  and  how  are  all  those  !  amount  of  miscellaneous  business  consigned  to  it, 
interlocutory  decrees  to  be  made,  which  often  de- j  and  which  his  friend  from  Oueida  (Mr.  KIRK- 
cide  the  whole  cause  ?  I  suppose,  sir,  they  are  LAND)  had  referred  to.  This  court  had  a  clerk 
to  be  heard  by  one  of  these  courts  in  bane,  or  at  a  and  a  clerk's  office  in  the  county  where  the  papers 
special  term,  perhaps,  whose  judges  are  constant-  of  the  suitors  were  kept,  where  the  judgments 
ly  shifting  and  changing,  and  thus  we  are  to  lose  j  were  docketed,  and  every  citizen  in  the  county 


the  benefit  of  the  knowledge  previously  acquired 
by  a  judge  who  may  have  made  some  previous 
order  or  decree  in  the  cause.  It  is  impossible, 
sir,  for  me  to  see  how  this  equity  business  can  be 
done  with  any  simplicity  or  certainty.  The 
whole  system  of  equity  jurisprudence  invited 


might  go  and  obiain  information  without  employ- 
ing  a.  lawyer. 

On  examining  the  organization  of  the  court,  he 
found  that  it  was  composed  of  five  judges,  all  re. 
sidenisof  the  county,  and  having  no  ]urisdictior> 
out  of  the  county,  and  employed  in  court  only 


constant  appeals  to  the  court  of  last  resort,  as  |  during  the  sittings  of  the  court  in  one  county  -- 
there  could  be  no  uniformity  of  decisions  by  so  The  compensation  of  these  jodtn-s  was  small.— 
many  judges  and  so  many  courts,  and  the  court  of  NOW,  any  one  could  see  what  the  result  would  be 
appeals  would  take  the  place  of  the  present  court  j  ij]cely  fo'be,  and  what  rn  fact  it  had  been,  but  this 
of  chancery,  to  which  the  appeals  from  the  Vice  |  was  no  argument  against  a  court  of  common  pleas 
Chancellor  were  now  made,  and  which  had  been  He  proposed  a  reorganization  of  the  court,  and 


overwhelmed  and  borne  down  ;  and  the  court  of 
appeals  could  not  dispatch  with  greater  facility 
than  the  present  Chancellor. 

The  court  of  appeals  upon  the  plan  of  the  com- 
mittee did  not  meet  his  views  of  what,  a  court  of 
lijsl  report  :n  the  great  State  of  New  York  should 
be.  It  had  been  resolved  nearly,  if  not  quite, 


with  a  view  of  giving  to  the  people  in  every  coun- 
ty a  court  of  originf.1  jurisdiction  with  a  judge  to 
preside  in  it  of  high  legal  attainments  and  as  com- 
petent as  the  judges  in  any  court  in  the  State. — 
Establish  such  a  court,  and  four-fifths  if  not  nine- 
tenths  of  all  the  business  of  the  county,  where  the 
parties  resided  in  il,  would  be  done  in  that  court, 
to  the  great  relief  of  the  supreme  court.  In  order 

to  effect  this,  a  judge  must  be  employed  who  shall 

tion  of  it  was  a  branch  of  the  legislatuie,  and  also!  devote  his  time  constantly  to  his  judicial    duties; 


unanimously,  to   nb  iii>h 
now  constituted,  upon 


the    Court   of  Errors 


I  hat.  it  was  too  Inrge  u  body  lor  a  court.  It 
wa.-,  however,  only  an  net  of  justice  to  sav,  that 
that  court  had  commanded  the  resi>ect  and  confi. 
of  the  people  of  this  State  and  of  the  other 


arid  economy  would  be  consulted  by  paying  him 
liberal  salary  so  as  to  command  the  best  talents. 
His.  plan  proposed  that  the  court  of  common  pleas 
for  each  county  (other   than  New  York)  should 


Stales  in  the  Union.  And  its  expositions  of  the  j  consist  of  a  president  judtje  and  two  associate 
great  arid  enlightened  principles  of  the  law,  re- [judges.  That  the  president  judge  should  always 
lieved  from  a  too  narrow  and  technical  interpieta- j  be  a  member  of  the  court,  and  might  bold  the 
tion,  have  shed  lustre  upon  the  court,  and  have  |  court  alone.  He  prooosed  to  divide  the  State  into 


enured  to  the  lasting  benefit  of  the  people,  and 
our  system  of  jurisprudence.  He  desired  to  see  a 
.  strong  and  able_.c<mrt  .substituted  in  ifs  place — a 
court  whicTi  "shall  embody  a  liberal  portion  of  the 
popular  features  of  the  old  court.  And  he  desired 
•A  judicial  system  so  organized  that  but  few  causes 


a  convenient  number  of  common  ple.is  judicial 
districts  subject  to  alteration  by  law,  that  a  presi- 
dent judge  should  be  chosen  in  each  district,  who 
should  be  the  president  judge  of  the  court  of  com- 
mon pleas  in  each  county, and  of  the  court  of  gene- 
ral sessions  of  the  peace  [The  chairman  of  the 


in  practice  should  ever  be   carried  to  rhis  court  of  judiciary  committee  (Mr.  RUGGLES)  here  enquir. 


las'  resort.  Important  questions  would  arise, in  a 
proper  decision  of  which  the  whole  people  were 
interested,  and  which  should  be  settled  upon  great 
deliberation,  and  by  a  court  representing  the  whole 
Stale,  and  in  a  manner  calculated  to  secure  the 
confidence  of  the  whole  country. 

Having  already  detained  the  committee  he  fear- 
ed too   long,  he  would  proceed  to  explain  briefly 


ed  of  Mr.  M.  how  many  of  these  president  judg. 
PS  he  proposed  to  have?]  Mr.  M.  said  he  had  not 
limited  the  number  as  it  would  be  entirely 
safe  to  leave  that  to  the  legislature,  but  he  sup- 
posed that  some  twelve  or  fifteen  would  be  enough 
for  the  state  out  of  the  city  of  New- York. — 
He  proposed  to  have  no  more  than  was  absolutely 
necessary  to  transact  the  business.  Thev  were 


toe  result  of  his  best  reflections  upon  a  proper  re- '  to  be  working  men,   and   it  would  presently  be 
organization   of  the  judiciary,  and   would    at  the  i  seen  what  other  labors  besides  attending  to  their 


597 


duties  in  the  law  courts,  he  proposed  to   impose 
upon  them  in  the  way  of  doing  up  the  equity  bu- 
>  in  the  districts.     The  two  associate  judges 
were  to  be  chosen  in  the  county.     They  were  not 
important  to  his  plan  in  the  administration  of  ci- 
vil business,  though  they  might  be  useful  in  cer- 
tain parts  of  it,  but  he  wanted  them  to  constitute 
with  the  president  judge,  the  court  of  general  ses- 
sions of  the  peace.     He  was  unwilling  to  trust  to 
any   single   man   the  administration  of  criminal 
law— the  infliction  of  the  penalties  for  crimes. — 
He  desired  that  the  president  judge  should  have 
upon  the  bench  with  him  two  citizens  of  the  coun- 
ty— men   of  good   strong   common   sense — with 
whom  he  could  consultwhen    he  came  to    inflict 
penalties  for  crimes.     He  did  not  propose  to  pay 
the  associate  judges   any  more   than  the   county 
judges  were  now  paid.     They  would  only  be  on 
duty  when  the  court  sat  in  their  county.     It  would 
be  safe  to  confer  upon  such  a  court,  with  a  presi- 
dent judge,   as  competent  as  their  circuit  judges 
now  were,   and  constantly  employed  as  a  judge, 
jurisdiction  of  all  crimes  committed  in  the  coun- 
ty, and  of  all  indictments  sent  into  the  court  from 
any  other  court  or  county,  for  trial.    A  court  thus 
organised,  with  a  President  judge,  for  some  four 
or  five  counties,  would  command   the  confidence 
of  suitors  and  the  people,  and   he  would   be  able 
to  dispatch  business  with  as  much  facility  as  the 
circuit  judge  now  does,  and  no  further  complaints 
would  be  heard  among  the  profession,  of  the  slow 
and  tardy  progress  of  the  court  of  common  pleas. 
The  business  of  the  county  would  be  done  in  such 
a  court.     It  would 'be  more  convenient,  less  ex- 
pensive, and  being  a  court   of  original  jurisdic- 
tion, it  could  hear  all  law  arguments,  correct  er- 
rors, grant  new  trials,  all  at   home  in  the  county, 
without  the  trouble,  and   delay,  and  expense,  of 
making  up  bills  of  exception  and  cases,  and  send- 
ing them  off  io  a  distant  city,  and  there  employ- 
ing counsel  to  procure  a  correction   of  the  errors 
of  the  circuit  judge,  who  was  a  mere  commission- 
er from  another  (the  Supreme)  court,  sent  down 
to  try  the  issues  joined  in  the  supreme  court,  and 
who  had  no  original  jurisdiction  to  grant  relief. 
The  president  judge  could  hold  special  law 
terms  other  than  the  regular  terms,  if  necessary, 
.  to  hear  law  arguments  alone,  without  a  jury.    A 
writ  of  error  would  issue  from  the  supreme  court 
to  his  court,   to  review  his  decisions.     He  would 
be  prompted  by  every  consideration,  stimulated  by 
ambition  to  qualify  himself  in  such  a  manner  that 
few  of  his  decisions  would  be  reversed.     And 
with  such 'a  court,   writs  of  error    and   appeals 
would  be  less  frequent.     It  was  in  this  way,  by 
beginning  at  the  root  of  the   evil — by  giving   to 
the    people   in   their  own   county   a  competent 
court  to  transact  their  business  in  the  first  instance, 
that  he  proposed  to  remove  the  evil   and  relieve 
to  a  great  ex  ent  the  embarrassment  of  our   high- 
.  er  courts.     But  he  proposed  to  confer  upon  these 
president    judges  other  important  duties.      He 
would  make  each  of  them  a  vice   chancellor,  and 
then  sir,  you  can  transact  your  equity  business  at 
home.     He  had  long  desired  to  see  the    offices  of 
examiner,  ex<  eption  master,  and  masters  in  chan 
eery,  abolished,  and  to  see   competent  men   ap- 
pointed before  whom  the   equity   suit  could   be 
commenced,  and  who  should  hear  all  the  witness- 
es, hear  the  arguments,  make  the  orders  and  de- 


crees, and  all  in  a  way  and  manner  as  simple  as  in 
a  suit  at  law,  and  more  so  as  no  jury  is  required, 
and  at  an  expense  generally  not  exceeding  a  sim- 
le  ordinary  suit  at  law.  But  to  accomplish  this 
:he  judge  must  be  a.  local  judge,  so  that  he  can  be 
found — so  that  he  can  conveniently  attend  to  the 
Business.  This  was  no  new  idea  with  him,  and 
it  was  the  only  mode  that  occurred  of  doing  that 
equity  business  conveniently,  if  they  were  to 
dispense  with  the  master  and  examiner. — 
An  appeal  would  of  course  lie  to  the  Chancellor 
or  Chancellors  sitting  in  bane,  and  representing 
the  whole  state.  He  proposed  to  create  a  Court 
of  Chancery  consisting  of  three  Chancellors,  any 
if  whom  might  hold  the  Court,  with  appellate  ju- 
risdiction only,  and  such  original  jurisdiction  as 
the  legislature  might  confer  upon  it.  He  propo- 
sed three,  with  a  view  of  guarding  against  the 
danger  of  the  court  being  overcome  with  business, 
allowing  each  Chancellor  to  sit  alone  if  necessary. 
He  believed  it  would  never  be  necessary,  under 
his  system,  that  they  should  sit  separate  after 
those  reforms  were  effected  which  they  all  desir- 
ed. But  he  had  another  object  in  proposing  three 
Chancellors;  it  was  in  reference  to  the  court 
of  last  resort  of  which  he  proposed  they  should 
form  a  part,  and  thus  they  would  secure  for  that 
ourt,  the  constant  attendance  of  three  of  the 
most  eminent  and  accomplished  jurists  in  the 
state.  Thus  his  whole  system  of  the  court  of 
Chancery,  was  seen.  He  provided  a  sufficient 
force,  brought  the  vice  Chancellor  almost  literal- 
ly to  the  door  of  the  suitor,  and  kept  the  court  of 
Chancery  intact — secured  a  uniform  practice 
throughout  the  state,  avoided  the  danger  of  con- 
fusion, and  transacted  the  business  with  a  less 
force, and  at  a  less  expense,he  submitted,than  were 
possible  under  the  system  of  uniting  law  and 
equity  in  the  same  court — the  system  of  the  com- 
mittee. 

For  the  city  and  county  of  New  York  he  pro- 
posed a  president  judge  of  the  court  of  common 
pleas  and  as  many  associate  judges  as  might  be 
necessary,  "  any  of  whom  may  hold  the  said  court 
for  the  trial  of  all  issues  of  fact  joined  therein 
or  sent  into  the  said  court  for  trial,  and  any  three 
of  whom  may  constitute  the  said  court  in  bane." 
This  would  enable  the  city  of  New  York  to  estab- 
lish one  of  the  most  splendid  courts  on  earth,  and 
without  any  danger  of  its  ever  being  overwhelm- 
ed with  business.  There  will  be  but  one  clerk's 
office.  All  records  and  judgments  and  papers  of 
the  court  will  be  kept  there.  And  suppose  that 
six  courts  with  a  jury  each,  are  required  in  that 
city.  Appoint  five  associate  judges  and  they  and 
the  president  judge  may  each  on  the  same  day,  at 
the  same  hour,  be  employed  in  the  trial  of  causes 
before  juries,  in  six  different  rooms.  Three  of 
these  judges  come  together  and  constitute  the 
court  in  bane,  to  hear  and  decide  all  law  ques- 
tions which  arise  in  this  court.  It  occurred  to 
him  that  in  New  York  he  could  further  apply 
beneficially  the  principle  of  a  division  of  labor. 
He  did  not  therefore  conier  upon  any  of  the  judges 
of  this  law  court,  equity  jurisdiction,  but  he  pro- 
posed to  create  a  vice  chancellor  and  assistant 
vice  chancellors  enough  to  do  the  business  of  the 
city,  they  performing  the  business  now  done  by 
the  examiners  and  masters  and  making  their  de- 
crees subject  to  appeal  to  the  chancellors. 


598 


Having  thus  organized  the  courts  of  common 
pleas,  he  had  no  difficulty  in  creating  a  su- 
preme court  whose  numbers  should  be  confined 
within  some  of  those  limits  to  which  he  had  al- 
ways supposed  it  was  desirable  to  confine  it.  It 
was  important  in  the  establishment  of  this  court 
to  unite  all  its  Judges  when  sitting  in  bane  and 
thus  obtain  at  once  the  opinion  of  a  court  repre- 
senting the  whole  state.  This  he  hadvnot  been 
able  to  accomplish.  The  difficulty  now  was  that 
the  court  could  not  hear,  examine  and  decide  all 
the  causes  brought  before  it,  and  by  adding  to  its 
numbers  you  do  not  increase  the  force  in  the 
same  ratio.  He  could  think  of  no  other  way  but 
that  the  court,  for  the  present  must  be  divided. 
This  was  an  evil  and  would  undoubtedly  tend  to 
increase  the  appeals  to  the  court  of  last  resort. — 
But  in  his  plan  he  divided  the  court  into  only  two 
branches,  instead  of  eight  as  proposed  by  the 
committee,  and  this  he  submitted,  greatly  lessen- 
ed the  evil.  He  proposed  that  the  supreme  court 
should  consist  of  a  chief  justice  and  eight 
justices.  That  the  State  should  be  divided 
into  two  districts — the  eastern  and  western — and 
that  each  district  should  be  divided  into  four 
circuits,  in  each  of  which  a  justice  of  the 
Supreme  Court  should  be  chosen  to  hold  his  of- 
fice twelve  years  in  all  cases  after  the  first  elec- 
tion. So  arranged  that  the  term  of  office  of  one 
of  the  four  in  each  district  should  expire  every 
three  years.  These  justices  to  hold  the  circuits 
twice  a  year  in  each  county,  and  any  justice  may 
hold  any  circuit.  As  they  are  not  to  be  troubled 
with  equity  business,  but  simply  with  the  trial  of 
the  issues  joined  in  the  court  and  the  trial  of 
criminal  causes  in  the  court  of  oyer  and  termi- 
ner,  there  will  be  no  difficulty  in  their  changing 
from  one  circuit  to  another.  The  court  in  bane 
for  the  eastern  district  is  to  be  composed  of  the 
chief  justice  and  the  four  justices  chosen  in  that 
district  or  any  three  of  them.  The  court  in  bane 
for  the  western  district  is  to  be  composed  of  the 
chief  justice  and  the  four  justices  chosen  in  that 
district  or  any  three  of  them.  Each  court  will 
hold  as  many  terms  in  its  district  and  at  as  many 
places  as  shall  be  necessary,  probably  four  terms 
a  year  besides  the  special  terms.  The  chief  jus- 
tice has  no  circuit,  and  probably  in  practice  would 
not  attend  to  circuit  duties,  but  he  will  attend  all 
the  bane  terms  in  each  district,  and  this  will  tend 
greatly  to  promote  uniformity  of  decisions.  It 
may  be  that  after  a  few  years  the  whole  court  may 
be  brought  together  in  its  sittings  in  bane.  This 
certainly  is  very  desirable. 

He  proposed  that  the  court  of  last  resort,  the 
court  for  the  correction  of  errors  and  of  appeals, 
should  consist  of  the  chancellor,  the  chief  justi- 
ces and  the  two  senior  justices  from  the  eastern 
and  western  districts,  and  eight  judges  to  be  cho- 
sen expressly  for  that  purpose,  one  from  each  of 
the  circuits,  to  hold  their  offices  four  years,  and 
to  be  so  classified  after  the  first  election,  that  the 
terms  of  one-fourth  of  them  shall  expire  an- 
nually. This  would  preserve  the  popular  features 
of  our  present  court.  The  whole  number  of  the 
court  would  be  sixteen.  He  did  not  think  it  too 
large  for  a  court  of  last  resort  for  this  great  State, 
to  which  but  few  causes,  under  a  good  and  efficient 
judicial  system,  would  ever  be  carried.  It  would 
be  in  session  but  a  small  part  of  the  year.  The 


pay  of  all  the  members,  except  the  eight  elected 
for  that  purpose  alone,  is  provided  for  in  their  sa- 
laries as  judges  and  chancellors.  If  gentlemen 
thought  the  court  too  numerous,  one  of  the  justi- 
ces from  each  district  and  one  or  two  of  the  chan- 
cellors might  be  dropped,  and  thus  reduce  the 
court  to  thirteen  or  fourteen.  He,  however,  pre- 
ferred the  whole  number.  His  plan,  he  thought, 
would  involve  less  expense  than  the  plan  of  the 
committee.  He  did  not  employ,  in  fact,  as  much 
working  force  as  they  contemplated,  but  his  ar- 
rangement was  different,  and  he  submitted,  better 
calculated  for  the  efficient  employmentof  the  force, 
and  the  accomplishment  of  the.business.  He  had 
thus  explained  his  views  as  to  the  proper  mode 
of  reorganising  the  judiciary  of  the  State.  He 
had  barely  alluded  to  some  of  the  reforms  which 
he  desired  to  see  effected  in  legal  proceedings, 
He  might  hereafter,  in  imitation  of  other  gentle- 
men, take  some  occasion  to  suggest  other  reforms 
in  judicial  proceedings,  but  this  body  could  pot 
effect  them.  It  was  a  work  for  the  legislature. 

Our  position  (said  Mr.  M.)  is  one  of  great  re- 
sponsibility. Vast  interests  are  confided  to  the 
Convention.  Three  millions  of  people,  to  be  af- 
fected for  good  or  evil,  are  looking  calmly  on, 
and  waiting  the  result  of  our  deliberations.  It  is 
often  easy  to  destroy  institutions  which  it  has  re- 
quired the  wisdom  of  ages  to  erect  and  perfect. — 
I'o  a  free  people,  nothing  can  be  more  important 
than  a  pure  and  wise  administration  of  justice.— 
Thus  far  in  our  career  as  a  nation,  we  have  the 
proud  satisfaction  of  knowing  that  the  laws  have 
been  faithfully  administered  by  our  couits,  that 
the  judiciary  has  proved  itself  true  to  the  high 
trust  reposed  in  it. 

The  judiciary  system  of  the  State  may  be  des- 
troyed. Your  judges  may  descend  from  the  high 
seats  of  justice,  and  a  new  older  of  things  may  be 
established.  Let  us  hope  that  the  judicial  eimine 
will  ever  remain  pure  and  unspotted.  It  is  of  the 
deepest  importance  that  the  high  confidence  hith- 
erto reposed  in  your  judges  and  your  courts  be 
preserved.  A  faithful  and  competent  judiciary  is 
the  sheet  anchor  of  safety  in  a  free  country.  One 
of  the  most  sublime  spectacles  on  earth  may  be 
constantly  witnessed  in  your  courts  of  justice. — 
While  in  other  lands,  the  toiling  millions  were 
borne  down  and  oppressed,  to  maintain  standing 
armies  to  secure  obedience  to  the  laws;  while  the 
judge  was  escorted  to  the  bench, surrounded  by  all 
the  trappings  of  office;  here,  in  a  republican  land, 
you  behold  an  aged  man  enter  your  court  room, 
undistinguished  from  the  crowd ;  he  slowly  ap- 
proaches the  seat  of  justice  and  enters  quietly  up- 
on the  discharge  of  his  high  duties.  Presently 
men's  minds  become  excited  in  the  angry  con- 
flicts of  contending  parties,  and  a  storm  of  pas- 
sion agitates  the  living  mass.  To  a  stranger  un- 
acquainted with  our  institutions,  all  appears  upon 
the  eve  of  civil  convulsion,  and  he  looks  around 
in  vain  for  the  power  that  is  to  command  and 
preserve  order.  But  the  judge  upon  the  bench 
has  spoken — the  storm  has  ceased — order  reigns 
— and  yet  every  man  in  that  vast  crowd  stands 
proudly  erect,  unawed  by  fear.  What  miracle 
has  wrought  this  change  ?  Is  it  solely  the  pow- 
er of  that  feeble  old  man  ?  No,  sir ;  it  is  the 
power  of  the  law,  the  sovereign  will,  the  fiat  of 
three  millions  of  freemen,  more  powerful  than 


599 


standing  armies.  The  judge  is  but  the  appoint- 
ed minister  of  the  law,  the  organ  of  the  people's 
will,  as  proclaimed  in  the  laws,  established  by 
themselves,  and  to  which  they  yield  a  willing 
obedience.  May  these  sublime  spectacles  be  ev- 
er exhibited  in  this  free  country. 

The  following  is  the  plan  submitted  by  Mr. 
MARVIN  : — 

§  1.  The  judicial  power  of  this  State  shall  be  vested  in  a 
court  for  the  trial  of  impeachments,  a  Court  for  the  Cor- 
rection of  Errors,  and  Appeals;  a  Court  of  Chancery,  a 
Supreme  Court,  a  Court  of  Common  Pleas,  Surrogates, 
Justices  of  the  Peace,  Courts  of  Oyer  and  Terminer  and 
general  jail  delivery,  Courts  of  General  Sessions,  of  the 
peace,  and  such  courts  of  jurisdiction  interior  to  the  courts 
of  common  pleas,  and  courts  of  General  Sessions  of  the 
Peace,  as  shall  be  by  law,  from  time  to  time  established. 

fc  2.  The  court  of  common  pleas  for  each  county,  other 
than  the  city  and  county  of  New-York,  shall  consist  of  a 
president  judge,  and  two  associate  judges.  The  president 
judge  shall  always  be  a  member  of  the  court,  and  may 
holl  the  said  court  alone. 

§  3.  The  state  shall  be  divided  by  law,  into  a  convenient 
number  of  common  pleas  judicial  districts,  subject  to  alte- 
ration by  law,  from  time  to  time,  as  the  public  good  may 
require.  No  county  shall  be  divided  in  the  formation  of 
the  said  districts. 

^  4.  The  city  and  county  of  New-York  shall  be  one  dis- 

&  d'.  There  shall  be  chosen  in  each  of  the  said  districts, 
otht  r  than  the  city  and  county  of  New  York,  by  the  quali- 
fied electors  thereof,  a  judge,  who  shall  be  the  president 
judge  oi  the  courts  of  common  pleas,  and  general  sessions 
of  tiie  peace  in  each  county  of  the  said  district.  He  shall 
hold  his  office  eight  y  ears,  unless  sooner  removed.  There 
shall  be  chosen  in  each  county  by  the  qualified  electors 
thereof,  two  judges  of  the  courts  of  common  pleas  of  such 
county, who  shall  be  styled  associate  judges,  each  of  whom 
•hall  liold  his  office  five  years,  unless  sooner  removed. 

§  6.  There  shall  be  chosen  a  president  judge  ol  the  courts 
of  common  pleas,  in  and  for  the  city  and  county  of  New 
York,  and  such  number  of  associate  judges  as  shall,  from 
time  to  time  be  provided  by  law,  any  ol  whom  may  hold 
the  said  court  for  the  trial  ot  all  issues  of  fact  joined  there- 
in, or  sent  into  the  said  court  for  trial,  and  any  three  of 
whom  may  constitute  the  said  court  in  bane. 

^7.  The  cour>  »-f general  sessions  of  the  peace  in  and 
for  the  city  and  co.-nty  ol  New-York,  shall  consist  of  the 
president  jud^e  of  the  courts  of  common  pleas  ol  said  city 
and  county,  and  any  two  of  the  associate  judges,  and  in  all 
cases,  below  the  degree  of  felony,  the  said  court  may  be 
held  by  any  three  of  the  said  judges.  The  said  court 
shall  have  jurisdiction  olail  crimes  committed  in  the  city 
and  county  of  New-York,  and  of  all  indictments  that  may- 
be sent  into  the  said  court  for  trial,  from  any  other  court 
or  couuty. 

(j  8.  The  court  of  general  sessions  of  the  peace  for  each 
of  the  counties  o;  the  State,  other  than  the  city  and  coun- 
ty of  New- York,  shall  consist  of  the  president  judge  of 
the  courts  of  common  pleas  and  the  associate  judges  of 
the  common  pleas  of  the  county,  or  the  said  president 
judge,  an  associate  judge,  and  a  justice  of  the  peace  of  the 
county;  or  the  said  president  judge  and  any  two  justices 
of  the  peace  of  the  cou:.ty ;  and  in  all  cases  below  the  de- 
gree ot  felony,  the  said  court  may  be  heid  by  the  said  as- 
sociate judges  and  a  justice  of  the  peace  of  the  county,  or 
by  an  associate  judge  and  two  justices  of  the  peace  of  the 
county.  The  said  court  shall  have  jurisdiction  of  all  crimes 
committed  in  the  county,  and  of  all  indictments  that  may 
be  sent  into  the  said  court  for  trial  from  any  other  court  or 
county. 

Supreme  Court. 

§9.  The  Supreme  Court  shall  consist  of  a  chief  justice 
and  eight  justices. 

<)  10.  The  State  shall  be  divided  into  two  districts,  the 
eastern  and  western;  each  of  which  will  be  divided  into 
four  convenient  circuits.  And  a  justice  of  the  Supreme 
Court  shall  be  chosen  in  each  circuit,  by  the  qualified 
electors  thereof,  on  a  day  specially  appointed  for  that  pur- 
pose. The  lour  justices'so  chosen  in  each  district,  shall  be 
dividtd  in  o  four  classes;  the  term  of  otiice  of  the  first  class 
shall  expire  at  the  end  of  three  years,  of  the  second  class 
at  the  eni  oi  six.  ye  'is.  of  the  third  class  at  the  end  of  nine 
years,  and  ol  the  fourth  class  at  the  end  of  twelve  years, 
to  the  eiid  that  the  term  of  office  of  one-fourth  of  the  said 
justices  shall  expire  every  three  years.  Elections  shall 


be  held  in  the  proper  circuits  to  fill  any  vacancy  about  to 
happen,  by  the  expiration  of  the  term  of  ortice,  and  the 
justice  so  elected  shall  hold  his  office  twelve  yeais,  unless 
sooner  removed.  In  case  a  vacancy  in  the  office  of  any  of 
the  said  justices  shall  happen,  otherwise  than  by  the  ex- 
piration  of  the  term  of  office  so  become  vacant,  it  shall  be 
the  duty  of  the  Governor  to  order  a  new  election,  to  be 
heli  within  six  mouths  after  the  happ  niiigof  such  vacancy, 
to  fill  the  said  office  for  the  unexpired  term;  and  in  case  the 
said  vacancy  shall  happen  within  two  yeais  of  the  time 
for  the  expiration  of  such  term  of  office  the  Governor 
shall,  within  three  months  after  the  happening  of  said  va- 
cancy, appoint  a  justice  of  the  said  court  to  fill  such  vacan- 
cy for  the  unexpired  term. 

(j  11.  The  Chief  Justice  shall  be  chosen  by  the  Senate 
and  Assembly  in  joint  meeting,  by  ballot,  and  shall  hold 
his  office  for  —  years,  unless  sooner  removed.  • 

§  12.  The  Supreme  Court  in  bane,  for  the  eastern  district, 
shall  consist  of  the  Chief  Justice  and  the  four  justices  cho- 
sen in  the  said  district,  or  any  three  of  them.  And  the 
Supreme  Court  in  bane,  for  the  western  district,  shall  con- 
sist ot  the  Chiuf  Justice  and  the  four  justices  chosen  in 
the  said  western  district  or  any  three  of  tht-m.  The  said 
courts  respectively,  shall  be  htld  at  such  times  and  pla- 
ces in  their  re.-pective  districts  as  shall  be  provided  by 
law,  or  directed  by  said  courts  respectively,  and  the  said 
Chief  Justice,the  justices  of  the  said  districts, respectively, 
oneormoieof  them,  shall  hold  at  such  times  or  places, 
as  shall  be  provided  by  law  or  ordered  by  the  said  courts 
respectively, special  terms  of  the  said  court  for  the  hearing 
of  such  motions  and  the  transactions  of  such  business  as 
shall  be  provided  by  the  rules  of  court,  subject  to  regula- 
tion by  law. 

Circuits. 

§  13.  The  Chief  Justice  or  any  one  of  the  said  justices 
may  hold  circuits  in  any  county  ol  the  state  for  the  trial 
of  all  issues  of  fact,  joined  in  the  said  Supreme  Couit,  or 
which  may  have  been  sent  into  the  said  court  lor  trial,  and 
may  preside  in  the  court  ot  oyer  and  ternoiner  and  general 
jail  delivery. 

^14.  The  court  of  oyer  and  terminer  and  general  jail 
delivery  in  the  respective  counties  o!  the  state,  other  than 
city  and  county  of  New-York,  shall  consist  of  one  of  the 
said  justices  of  the  supreme  court  and  the  associate  judges 
of  the  court  of  common  pleas  of  the  county,  or  a  justice  of 
th«  supreme  court  and  any  two  ot  the  justices  of  the  peace 
of  the  said  county.  In  the  city  and  county  of  New-York, 
the  said  court  shall  consist  of  a  justice  of  the  supreme 
court,  and  any  two  of  the  judges  of  the  courts  of  common 
pleas,  in  and  lor  said  city  and  county.  The  justices  of  the 
supreme  court  shall,  respectively,  be  conservators  of  the 
peace  throughout  the  state. 

Chancery* 

§  15.  The  Court  of  Chancery  shall  consist  of  three  Chan, 
cellors,  any  of  whom  may  hold  the  court.  It  shall  have 
appellate  jurisdiction,  and  such  original  jurisdiction  as 
shall  be  provided  b>  law 

§  1 6  The  chancellors  shall  be  chosen  by  the  Senate  and 
Assembly  in  j->int  meeting,  by  ballot,  and  shall  hold  their 
offices  respectively  for years,  unless  sooner  removed. 

^17.  There  shall  be  chosen  a  vice.chancellor,  in  and 
for  the  city  andcoun'y  of  New-York,  and  such  numbers  fo 
assistant  vice-chancellors  as  shall  be  provided  for  by  law, 

not  exceeding in  number,   until  alter  the  year  1855, 

when  the  number  may  be  increased  to  not  exceeding , 

any  of  whom  may  hold  the  court. 

^  IS.  The  president  judge  of  the  courts  of  common  pleas, 
except  in  the  city  and  county  of  New  York,  shall  be  a 
vice-chancellor;  and  such  equity  powers  may  be  vested  in 
him  as  the  Legislature  may,  by  law,  direct,  subject  to  the 
appellate  jurisdiction  of  the  Court  of  Chancery.  He  shall 
hold  stated  terms  in  each  county  in  his  district,  for  the 
hearing  of  cases  in  equity,  and  the  witnesses  produced  and 
the  documentary  and  other  evidence  shall  be  heard  by 
him  in  open  court. 

§19.  The  vice-chancellor  shall  also  hold  stated  terms, 
a  sucn»times  and  places  in  hi"  district,  as  he  shall,  from 
tjme  to  time,  appoint,  or  as  shdll  be  directed  by  law,  for 
the  hearing  of  arguments  and  motions. 

§  20.  The  Legislature  may  provide  by  law  for  the  exam- 
ination of  foreign  and  distant  witnesses,  and  the  taking  of 
evidence  conditionally,  an  I  for  the  reference  of  any  ques- 
tion or  cause,  to  an  auditor  or  auditors, referee  orreleie-s, 
or  master  upon  special  application  to  the  courts:  such  iu- 
ditor,  referee  or  masters  to  be  named  by  the  cou.t.or  the 
parties  to  the  suit,  subject  to  the  approval  of  the  court. 

^  21.  The  offices  of  master,  exception  master,  and  exam- 
iner in  chancery  ate  abolished. 


600 


Court  of  ^Appeals,  $-c. 

§  22.  The  court  for  the  correction  of  errors  and  of  ap- 
peals, shall  consist  of  the  chief  justice  and  the  two  senior 
justices  of  the  Supreme  Court  from  the  eastern  and  west- 
ern districts  of  the  State,  respectively,  of  the  Chancellor 
and  of  eight  judges  to  be  elected.  The  qualified  electors 
of  each  circuit  shall  elect  one  of  the  eight  judges.  They 
shall,  after  the  first  election,  be  divided  into  four  classes  in 
each  district.  The  term  of  office  of  the  first  class  shall  be 
one  year,  of  the  second  class  two  years,  of  the  third  class 
three  years,  of  the  fourth  class  four  years,  to  the  end  that 
one-fourth  of  the  said  judges  shall  be  annually  elected, 
and  hold  their  offices,  respectively,  four  years.  In  case  of 
a  vacancy  happening,  a  new  election  in  the  proper  circuit 
shall  be  held  to  fill  such  vacancy,  for  the  unexpired  term, 
at  such  time,  and  in  such  manner,  as  shall  be  directed  by 
law. 

§  23.  The  Legislature  may  provide,  by  law,  for  transfer- 
ing  to  the  courts  of  law,  such  powers  and  duties  of  the 
court  of  chancery  as  may  be  conveniently  executed  and 
performed  by  such  courts. 

b  24.  There  shall  be  elected  in  each  county,  by  the  quali- 
fied electors  thereof,  a  surrogate  who  shall  hold  his  office 
for  lour  years,  and  until  his  successor  shall  be  duly  quali- 
fied. 

^  25.  The  justices  of  the  peace  in  office  when  this  Consti- 
tution takes  effect,  shall  remain  and  continue  in  office  for 
the  residue  of  the  terms  for  which  they  were  respectively 
elected;  and  they  shall  continue  to  be  elected  in  the  man- 
ner, and  hold  their  offices  for  the  term  prescribed  in  the 
present  Constitution. 

^  26.  The  Legislature  may,  after  1855,  increase  the  num- 
ber of  the  justices  of  the  Supreme  Court  to  any  number 
not  exceeding  twelve,  and  may  divide  the  State  into  three 
Supreme  Court  judicial  districts,  each  of  which  districts 
shall  be  divided  into  not  less  than  three,  and  not  more  than 
four  circuits. 

Mr.  NICOLL  said  he  felt  some  hesitation  in 
rising  to  address  the  committee,  after  the  elabo- 
rate and  eloquent  arguments  which  they  had  just 
heard  from  the  gentleman  from  Chautauque  (Mr. 
MARVIN,) — still  as  the  subject  under  considera- 
tion was  of  vast  importance,  he  would  venture  to 
ask  permission  to  give  as  briefly  as  possible  his 
riews  to  the  committee.  The  debate  had  already 
taken  a  wide  range,  and  several  gentlemen  had 
felt  it  to  be  their  duty  to  discuss  the  entire  report 
of  the  judiciary  committee,  although  the  subject 
directly  under  consideration  was  the  third  sec- 
tion, of  that  report.  To  that  section  Mr:  N.  said 
he  sh'ould  confine  his  remarks.  The  proposition 
now  before  the  committee  was  to  abolish  the  pre- 
sent court  of  chancery,  and  to  transfer  its  large 
and  important  jurisdiction  to  the  Supreme  Court, 
with  the  view  that  provision  may  ultimately  be 
made  for  but  one  form  of  procedure  in  all  civil 
causes,  as  well  at  law  as  in  equity.  This  was  in- 
deed a  great  change  ;  one  that  should  not  be  made 
rashly  nor  without  a  full  appreciation  of  its  im- 
portance and  of  the  consequences  which  would 
flow  from  it.  Mr.  N.  said  there  was  a  natural 
feeling  among  reflecting  men — that  no  great 
change  should  ever  be  made  except  upon  mature 
deliberation.  Perhaps  he  might  venture  to  say 
that  there  was  often  an  unwillingness,  even 
in  cases  of  acknowledged  evils — to  change  what 
was  known  and  had  been  long  acted  upon  and 
practiced,  for  a  system  wholly  untried.  He  had 
no  disposition  to  quarrel  with  this  feeling.  No 
man  would  more  strongly  deprecate  than  himself 
rash  and  uncalled  for  changes.  He  was  not  one 
of  those  who  would  tear  down  and  break  up  old 
institutions  merely  because  they  were  ancient. — 
At  the  same  time,  when  he  thought  he  could  see 
clearly  and  distinctly  in  a  proposed  change  a  re- 
moval or  alleviation  of  present  admitted  evil,  he 
would  not  suffer  himself  to  be  embarrassed  or  hin- 
dered in  the  work  of  reform  by  any  attachment 


for  antiquity.  Mr.  N.  observed  that  it  could  not 
be  denied  that  the  present  system  of  administer- 
ing the  jurisdiction  of  law  and  equity,  in  separate 
tribunals,  was  productive  of  much  uncertainty 
and  difficulty.  He  asked  what  was  the  great  ob- 
ject proposed  in  all  litigation  ?  Was  it  not  to 
redress  a  wrong  or  enforce  a  right  ?  This  was  the 
only  and  paramount  object.  Every  thing  else  in 
the  progress  of  a  cause  was  subordinate  to  and  in- 
tended to  effect  this  great  end.  It  was  of  the 
highest  importance  that  the  course  of  procedure 
should  be  such  as  would  most  surelyand  in  the  sim- 
plest manner  effect  this  object.  The  administration 
of  justice  cannot  be  made  too  plain.  Mr.  N.  ap- 
pealed to  his  professional  brethren  whether  in 
this  State  it  was  not  widely  different.  Was  it  not 
very  often  in  many  cases,  a  matter  of  real  diffi- 
culty to  determine  how  the  redress  sought  for 
was  to  be  obtained  '  Has  not  the  lawyer  again 
and  again  felt  it  to  be  almost  impossible'  to  de- 
termine with  anything  like  certainty  the  proper 
form  of  action  and  the  appropriate  forum  to  en- 
tertain his  complaint?  He  believed  such  em- 
barrassments were  of  daily  occurrence  in  the  pro- 
fession. They  had  to  be  encountered  at  the  thresh- 
hold  of  litigation  and  the  risk  had  to  be  met  at 
the  peril  of  a  loss  'of  substantial  rights.  Again 
and  again  has  the  reality  been  sacrificed  for  the 
sake  of  form — technical,  artificial,  and  too  often 
unmeaning  form.  Mr.  N.  said  he  would  endeav- 
or to  show  as  briefly  as  possible  in  what  these 
defects  in  the  system  of  procedure  consisted,  and 
would  in  so  doing,  state  the  reasons  which  in- 
duced him  to  advocate  the  union  of  the  two 
courts  in  a  single  tribunal.  In  the  first  place  he 
would  yield  to  no  man  in  respect  and  admiration 
for  the  common  law — but  the  common  law  far 
which  he  entertained  this  veneration,  was 
that  law  which  prevailed  among  our  Saxon  an- 
cestors, a  free  and  simple  people,  before  their  lib- 
erties had  been  destroyed  by  the  rapacious  and 
unprincipled  Norman.  In  the  early  days  of  the 
common  law  the  administration  of  justice  was 
eminently  simple  and  expeditious.  Almost  every 
hamlet  had  iis  courr,  and  parties  were  enabled  to 
state  their  complaint  and  defence  without  regard 
to  technical  jargon.  A  jury  of  their  neighbors 
chosen  because  they  were  likely  to  be  acquainted 
with  the  litigants  and  the  merits  of  the  contro- 
versy— were  enabled  to  come  to  a  decision  with- 
out the  aid  of  the  arguments  of  contending 
advocates,  and  the  whole  procedure  was  ia 
entire  consonance  with  the  habits  and  char- 
acter of  the  people.  But  with  the  conquer- 
or came  the  feudal  system  which  brought 
serfdom  and  despotism  into  all  these  countries 
where  it  was  introduced  It  is  a  well  known  his- 
torical fact,  however,  that  its  lull  establishment 
was  never  entirely  perfected  in  England.  A  peo. 
pie  who  had  once  enjoyed  the  blessing  of  freedom 
could  not  be  compelled  to  give  up  all  their  rights, 
and  hence  it  is  that  so  much  of  the  common  law 
.vas  preserved.  Still  the  changes  were  great  and 
impoitant.  The  courts  became  a  part  of  the  roy. 
.il  prerogative  and  justice  was  administered  though 
the  king's  servile  retainers.  In  pn  gress  of  time 
sprung  up  our  forms  of  action,  the  germs  of  which 
ut-re  transplanted  from  the  civil  law.  When 
e  established  they  were  declared  unalterable. 
Mr.  N.  here  adverted  at  some  length  to  the  histo- 


601 


ry  of  several  of  the*e  forms  of  action  and  the  ne- 
necessity    which  had    from  time  to   time   caused 
their    invention        He    observed     that   while    it 
was  the   great  boast,  of  the   common    law  that  it 
processed  a  flexibility  which  admitted  of  its  exten- 
sion part  passu  with  the  increasing  wants  arid 
refinement  ot  society — its  forms  of  procedure  were 
in  a  great  degree  fixed  and  unalterable.  To  this  was 
to  be  attributed  in  a  great  degree  the  numerous  fic- 
tions which  disfigured  its  remedial  process, aud  that 
after  ail   it  must    be  admitted    that  its    procedure 
was  in  manv  instances  wholly  incapable  of  render- 
inn  substantial  jiwlico.     It    had  been  observed  by 
the  elegant  writer  ot  the  commentaries — that  great 
apologist  and  vindicator  of  the  common  law,  as  he 
has  been  not  inaptly  termed— that  had  the  judges 
been  disposed  to   extend    rather  than  narrow  the 
remedial   effect    of  their   writs,   all    the  effectual 
purposes  of  a  court  of  equity,  except  a  discovery, 
might  have   been  obtained.     To  their  unwilling- 
ness in    this  respecr — to  the   palpable  inability  of 
the  common  law  processes  to  render  redress  in  all 
c.ises — we  owe  the  origin    of  our  chancery  juris- 
diction.    In  its  first   creation  it   was  not  only  in 
name,  but  in  fact,  a  court  of  equity — a  court  not 
acting    upon    pi ecedent  or  by  "positive  rules,  but 
according  to  its  own  illy-defined  notions  of  good 
conscience.     It    was   the   mere   creature  of  royal 
prerogative.     It  took  its  hue  from  the  palace,  and 
fostered  and  encouraged,  it  soon  became  no  mean 
part  of  the  judicature  of  England.     Twin-sister 
to  the  star   chamber,  and  too   often  acting  not  in 
furtherance  of  the  common  law,  but  in  strict  op 
position  to  its  rules,  and  in  the  exercise  of  an  ar- 
bitrary discretion,  it  shared  in  many  respects  with 
that  tyrannic  tribunal  in  the  odium  of  tne  people. 
The  early  chancellors  were  in  most  instances  either 
soldiers  or  churchmen,  and  the  system  in  vogue  in 
the  court,  so  fdr  as  it  may  be  said  to  have  been  a  sys- 
tem, was  founded  on  the  unpopular  models  of  th 
civil  and  tae  canon  laws.    There  is  great  uncer- 
tainty as  to  the  period  when  the  court  of  chancery 
was  fully  recognized  as  a   distinct   and   separate 
tribunal  for  the  administration  of  justice.     It  hac 
however  fully  become  so  at  the  time   when   Lore 
Bacon  was  elevated  to  the  Chancellorship.     From 
that  day  its  jurisdiction  had   been   constantly   on 
the  increase.    The  illustrious  men  who  had  then 
presided  had  done  much  to  form  a  complete  sys 
tern,  corresponding  with  the  increasing  wants  o 
a  nation  advancing  in  civilization.  Its  form  of  pro 
cedure  was  comparatively  simple,  and  capable  o 
being  applied  to  any  imaginable  case.     But   th 
court  had  long  since  ceased  to  be   a  tribunal   c 
mere    discretion.      It     administered    justice  ir 
obedience  to  positive  rules  and  in   strict  confor 
mity  with  its  own   established  precedents.     Mr 
N.  said  he  had  spoken  of  the  technical  actions  o 
the  common  law.  He  was  sure  he  would  be   par 
doned  if  he  adverted  also  to  the  strangely  incon 
sistent  system  of  pleading  under  that  law,  a  sys 
tem  which  had  been  justly  characterized  as  hav 
ing  been  framed  upon  the  narrow  rules   and  fan 
ciful  niceties  of  metaphysical  and  Norman  juris 
prudence  and  the  logic  of  the  schoolman.     In  a 
common  law  pleadings  the  case   must   be    state 
either  with  a  perilous  precision  and   minutenes 
or  with  a  generality  which  literally  gave  the   ac 
versary  no  idea  of  the  claim  brought  against  him 
There  was  no  well  founded  reason  for  the  di 


nction.     In  the  one  case  the  pleader  cannot  be 
o  explicit — he  walks  surrounded  with  traps  and 
it  falls;  and  if  he  falls  the  mistake  is   too   often 
icurable.     While  on   the  other  a  party  is  fre- 
uently  at  the  trial,  made  the  victim  of  a  fatal 
nd  unavoidable  surprize.     Mr.  N  proceeded  to 
low  that  the  boundary  lines  separating  the  ju- 
sdiction  of  the  courts    of   law    arid  chancery, 
ad    become    in    the    progress   of  time  greatly 
onfused.      He    said     there    was    now    a    vast 
oncurrent   jurisdiction,   and    it  was    in    many 
ases  no  easy   matter  to   determine   where,  in   a 
iven  case,  the  jurisdiction  properly  belonged. — 
'he  courts  of  law  had  for  years  been  assuming 
ne'  branch  after   another  of  equity  law.      He 
ight  instance  among  others  that  occurred  to  him 
t  the  moment,  contribution,   relief  of  a  surety, 
nd  the  broad  and    generic  action  of  money  had 
nd  received,  which  was  maintainable  in   every 
ase  where  a  party  was  in  possession  of  money  or 
ts  equivalent  which  ex  cequo  et  bono  belonged  to 
nother — an,  action  which   it  had  been  avowed 
gain  and  again  by  courts  of  law  was  a  substitute 
or  a  bill  in  equity,   and  should  be  encouraged. — 
Ir.  N.  also   alluded  to   the  jurisdiction   in  the 
ase  of  sealed  instruments ;   the  consideration  of 
vhich  could  never   be   impeached   in  a  court  of 
aw,  until   in  the  revision  of  our  laws  in  1830  a 
>rovision  was  wisely  inserted  enabling  this  to  be 
.one.     This  was  in  effect  transferring  at  once  to 
court  of  law  a  large  and   important  branch  of 
quity  jurisdiction,  and  was   undoubtedly  a  most 
jeneficial  reform.     He  thought  it  might  be  safely 
aid  that  the  present  tendency  of  our  courts  of 
aw  was  to  administer  equitable   relief  as  far   as 
hey  could  without  violating  their  settled  and  fix- 
ed forms  of  procedure.     It  appeared  to  him  plain 
;hat  if  these  unyielding  forms  could  be  material - 
y  altered,  so  as  to  admit  of  their  application  to 
all  cases  as  well  at  law  as  in  equity,  the  organi- 
zation of  the  two  systems  would  be  a  work  easily 
accomplished.  He  admitted  it  should  not  be  done 
rashly,   but  with    a  circumspect  regard  to  the 
?vhole  body  of  the  law,  and  in  such  a  manner  as 
would   cause   the   least  possible    inconvenience 
n  putting  into  operation  the   new  procedure. — 
But  until   this  should  be  done   for  the  reasons 
which  had  just  been  stated,  the  boundary  line 
which  separated  the  two  tribunals  must  of  neces- 
sity grow  more  and  more  confused.     Mr.  N.  said 
a  case  had  recently  been  stated  to  him  by  a  highly 
respectable  professionalgentlernan,which  illustra- 
ed  in  a  remarkable  manner  the  diiliculty  of  deter- 
mining whether  the  remedy  was  at  law  or  in  equi- 
ty. It  was  a  case  where  this  difficulty  had  actually 
amounted  to  a  denial  of  justice.     He  would  brief- 
ly state  the  case  to  the  committee.     It  was  this — 
Two  individuals  having  a  matter  in  dispute  agreed 
to  leave  it  to  the  decision  of  arbitrators.     Through 
inadvertence   the  submission  had  not  been  made 
in  the   presence   of  a   subscribing  witness.     In 
making  their  award  the  arbitrators  committed  an 
admitted    clerical    mistake    by    which  the  par- 
ty   in    whose   favor    the    award    was  made  had 
adjudged  to    him    a    much  larger    sum  of  mo- 
ney than   he  was    entitled  to.     The  submission 
had  provided  for  the  entry  of  a  judgment  in  the 
supreme   court  upon  the  award.     The  defendant 
applied  to  that  tribunal  for  a  correction  of  the 
award  in  respect  to  this  admitted  mistake.     He 
50 


602 


was  answered  by  the  court  that  the  jurisdiction 
was  in  equity  not  at  law,  and  the  judgment  was 
accordingly  entered  up  for  the  full  amount.  Act- 
ing upon  this  decision  the  defendant  at  once  filed 
his  bill  in  the  court  of  chancery  to  correct  the 
award.  When  the  case  came  before  the  chancel- 
lor he  decided  that  a  court  of  equity  had  no  juris- 
diction in  the  matter,  a  court  of  law  being  in  his 
opinion  fully  competent  to  afford  the  required  re- 
lief. So  this  unfortunate  individual,  seeking  to 
correct  a  mistake  about  which  there  was  not  a  par- 
ticle of  doubt,  was  turned  out  of  both  courts. — 
The  committee  would  easily  see  that  these  pro- 
ceedings were  attended  with  no  small  expense. 
Mr.  N.  said  the  case  just  alluded  to  ought  to  be 
sufficient  to  produce  the  conviction  that  the  in- 
creasing confusion  of  the  jurisdiction  of  the  courts 
called  vlou€tly  for  reform.  This  was  not  by  any 
means  *a  solitary  case.  He  believed  that  almost 
every  professional  gentleman  on  the  floor  could 
recall  to  his  recollection  cases  in  his  own  prac- 
tice where  similar  difficulties  had  occurred.  The 
question  now  before  the  committee  was  whether 
they  would  take  the  initiative  step  in  the  great  le- 
gal reform  which  was  every  where  so  loudly  call- 
ed for — a  reform  which  he  admitted  should  be 
made  with  the  greatest  deliberation  and  caution. 
If  judiciously  done  he  felt  assured  that  in  a  few 
years  the  legal  profession  would  look  back  upon 
the  cumbrous,  artificial  and  expensive  procedure 
of  the  present  day  with  feelings  very  much  akin 
to  those  which  our  travellers  on  railroads  and 
those  who  use  the"  lightning  to  communicate 
Uieir  thoughts  regard  the  old  fjsnioned  stage  coach- 
es, and  mail  wagons  of  other  days.  For  himself, 
Mr.  N.  said  he  should  rejoice  to  be  instrumental 
111  preparing  the  ground  lor  these  great  changes, 
and  he  was  convinced  that  a  more  noble  task,  or 
one  in  which  the  interests  of  the  community  were 
more  directly  involved,  could  not  engage  the  at- 
tention of  the  Convention.  He  hoped  that  be- 
fore they  separated,  ample  provision  would  be 
made  for  the  prosecution  of  this  great  work.  Mr. 
N.  said  that  many  professional  genileman  enter- 
tained the  idea  that  there  was  something  inherent 
in  oui  common  law  courts  which  rendered  them 
incapable  of  administering  equitable  relief.  He 
had  endeavored  to  show  that  this  difficulty,  if  it 
existed,  grew  solely  out  of  the  limited  and  re- 
stricted forms  ot  procedure  in  these  tribunals,  and 
that  notwithstanding  this  obstacle  a  large  branch 
of  equity  jurisprudence  was  actually  admin- 
istered in  our  courts  of  law.  Mr.  N.  then 
proceeded  to  show  that  the  common  law  courts 
had  in  many  respects  been  clothed  by  the  Statute 
with  a  procedure  in  some  respects  very  analagous  to 
the  forms  of  our  courts  ot  equity.  He  instanced  the 
proceedings  in  partition  where  the  Legislature  had 
given  their  tribunals  a  procedure  at  once  simple 
arid  efficacious,  and  which  po.-sessed  the  p-cuhar 
merits  of  the  chaneery  procedure.  He  was  not 
aware  that  any  difficulty  had  been  experienced  in 
proceeding  under  these  provisions.  Mr.  N.  also 
referred  to  the  jurisdiction  of  the  Supreme  Court 
in  granting  writs  of  mandamus  and  prohibition 
and  the  practice  in  cases  of  waste  and  nuisance. 
If  such  powers  could  be  exercised  by  a  common 
law  court,  he  saw  no  difficulty  in  their  adminis- 
tering the  preventive  as  well  as  the  other  process 
of  the  court  of  chancery.  The  gentleman  from 


Chautauque  (Mr.  MARVIN)  had  said  that  the 
distinguishing  feature  of  the  common  law  courts 
was  that  they  enabled  parties  to  come  directly  to 
a  point— to  single  and  distinct  issues,  and  that 

all  that  the  jury  had  to  do  was  to  settle  a  fact 

either  to  find  for  the  plaintiff  or  defendant.  Mr. 
N.  admitted  this  to  be  so  in  point  of  form — but  in 
that  respect  only.  True  it  was  that  single  issues 
were  made  up  and  passed  upon  by  the  jury. — 
But  he  would  ask  his  honorable  friend  whether 
an  issue  did  not  in  every  instance  consist  of  a 
number  of  varied  and  dependent  facts  all  of  which 
were  material  to  its  formation.  When  the  Jury 
passed  upon  the  issue,  they  must  of  necessity, 
have  passed  upon  the  truth  of  all  the  alleged 
facts  which  formed  the  issue.  For  in- 
stance, in  an  action  against  a  party  as  the 
endorser  of  a  promissory  note  the  verdict 
of  the  Jury,  if  for  the  plaintiff,  is  to  a 
single  point  that  the  defendant  promised  as 
alleged  in  the  declaration — but  in  giving  this 
verdict  the  jury  n.ive  in  effect  found  three  tac'S 
all  of  which  were  prerequisite  to  the  defendant's 
liability,  to  wit,  the  endorsement — demand  of  tlie 
maker  and  a  proper  notice  of  non-payment  to  the 
defendant.  This  is  stating  the  case  in  the  simplest 
manner,  because  every  profe.ssional  gentleman  will 
at  once  see  that  the  determination  of  these  facts 
may  in  many  instances  involve  an  enquiry  into  a 
multitude  of  other  facts.  Now  how  are  the  jury 
instructed  in  regard  to  the  facts  to  be  passed  upon 
by  them  ?  This  office  is  performed  by  the  judge, 
who,  in  his  charge  to  the  jury,  invariably  setles 
and  determines  the  actual  and  particular  issues 
upon  which  the  jury  are  to  deliberate,  and  upon 
all  of  which  they  must  pass  before  thev  can  find 
the  formal  and  simple  issue  made  by  the  plead- 
ings. If  the  jury  system  should  be  iniroduced  in 
equity  proceedings,  it  might  be  necessary  to  settle 
the  issues  in  advance,  before  enteiiug  upon  the 
testimony,  which  Mr.  N.  thought  could  be  easily 
done.  He  would  beg  leave  further  to  say  to  the 
genileman  trorn  Chautauque  county  (Mr.  MARVIN) 
that  no  one  dreamed  01  administering  equity  ju- 
risprudence through  a  jury  alone.  All  that  was 
intended  was  to  submit  to  their  determination 
the  facts  of  the  case  in  the  same  manner  as  in 
trials  at  common  law  He  had  also  alluded  10 
the  difficulties  attendant  upon  the  administra- 
tion ot  equity  jurisprudence  in  the  common  law 
courts  of  Pennsylvania,  and  had  particularly  in- 
stanced the  case  of  specific  performance,  where 
the  jury  were  obliged  to  find  heavy  damages,  to 
be  "stricken  off"  upon  performance  of  the  agree- 
ment. His  friend  (Mr.  MARVIN)  had  justly  cha- 
racterised this  procedure  as  cumbrous,  and  the 
relief  as  imperfect  and  unsatisfactory  ;  but  Mr.  N. 
thought  that  the  whole  difficulty  consisted  in  the 
forms  of  procedure.  Had  the  Legislature  of  Penn- 
sylvania given  the  court  power,  upon  certain  facts 
being  found  by  the  jury,  to  adjudge  a  specific  per- 
formance, he  apprehended  all  cause  of  complaint 
would  be  removed.  Mr.  N.  felt  he  had  already 
taken  up  too  much  of  the  time  of  the  committee, 
but  before  concluding  he  desired  to  say  a  few 
words  in  reply  to  his  friend  from  Chautauque  up- 
on the  subject  of  a  codification  of  the  whole  body 
of  our  laws.  The  select  committee  intrusted 
with  the  consideration  of  this  important  subject, 
had  this  morning  reported  a  project  which  he 


603 


hoped  would  be  adopted  by  the  convention. — 
When  it  should  come  up  for  consideration,  Mr. 
N.  said  he  should  advocate  it  with  all  the  energy 
and  ability  he  possessed.  At  present  he  would 
content  himself  with  the  single  remark  that  the 
friends  of  codification  do  not  suppose  that  all  ne- 
;ty  for  construction,  or  that  all  doubts  and 
ambiguities  will  be  removed,  when  the  law  shall 
be  reduced  into  a  simple  and  harmonious  system. 
While  the  combinations  of  thought  a»d  action  are 
infinite,  language  is  finite  and  imperfect.  Rela- 
-  must  be  formed  and  cases  must  arise  in  which 
;>ecific  provision  will  be  found  for  in  thelaws 
— but  in  those  cases,  Mr.  N.  said,  we  should  not 
be  worse  off'  than  at  present.  He  thought  if  the 
code  should  be  prepared  with  that  careful  study 
and  deliberation  which  the  vast  importance  of 
the  subject  demanded,  the  instances  for  interpre- 
tation would  be  infinitely  less  than  under  our 
[invent  system  of  unwritten  and  too  often  uncer- 
tain rules.  The  law  would  then  cease  to  be  a 
mystery,  and  would  be  ranked  among  the  scien- 
ces, where  its  place  should  be  the  highest,  be- 
cause its  sphere  was  infinite  in  its  extent,  and 
because  its  application  affected  the  liberty,  hap- 
piness and  welfare  of  society,  in  all  its  complica- 
ted relations. 

And  then  on  motion  of  Mr.  STRONG,  the  com- 
mit.iee  rose  and  reported  progress.  » 

And  the  Convention  adjourned. 

AFTERNOON  SESSION. 

The  Committee  of  the  Whole,  Mr.  CAMBRE- 
LKNii  in  the  Chair,  again  took  up  the  several 
reports  on 

THE  JUDICIARY. 

Mr.  STRONG  rose  and  said  :  as  it  seemed  there 
w;ix  to  be  an  occasion  for  every  member  to  express 
their  opimoi.«  upon  the  judiciary  reports,  he  should 
occupy  a  few  moments  in  giving  his  views  upon 
the  reporr.  of  the  majority.  There  was  another 
reason  lor  his  desirintc  to  do  so  The  gentleman 
(rota  G-nesee,  the  other  day,  had  remarked  that 
it  w.n  time  that  something  should  be  said  by  the 
lay  m  jmbers.  Perhaps,  after  hearing  so  many 
spe'-cliHs  from  gentlemen  ot  the  legal  profession — 
and  which  he  had  listened  to  with  a  great  deal  of 
interest,  and  with  regret  that  so  many  gentlemen 
of  shining  talent  should  disagree  upon  the  adop. 
tion  of  a  plan  lor  a  judiciaiy — he  might  not  have 
so  good  an  excuse  for  troubling  the  Convention, 
but  lie  desired  to  have  an  opportunity  of  stating 
some  objections  which  he  had  to  the  report  of  I  he 
rnajdiity.  He  would  have  liked  that  report  much 
better  h-id^tretaiiied  (he  county  courts  in  gome 
f < > wju  H e  had  NndersTW.Cl  ftom*SoT!re~g7ntTe m e n 
of  the  judiciary  committee,  that  a  plan  had  been 
proposed  bur  which  could  not  obtain  the  assent  of 
that  committee,  lie  could  not  agree  with  gentle- 
men who  said  that  the  people  had  no  confidence 
in  the  county  courts  It  might  be  becr.use  he  had 
the  fortune  to  live  in  a  county  where  there  was  a 
good  court;  where  they  have  judges  who  are  ca- 
pable oi  understanding  their  duty,  and  perform  it 
to  the  satisfaction  of  the  people.  In  order  to  pro- 
cure such  a  court  and  such  officers,  the  county  of 
Monroe  paid  the  first  judge  a  salary  of  $1000,  and 
th«  District  Attorney  $1,500.  And  they  saved 
mon.>y  in  this  way,  as  well  as  securing  a  good 
court.  The  salaries  of  these  officers  are  fixed  by 


the  Board  of  Supervisors.  It  did  seem  to  him  that 
there  might  have  been  some  form  devised,  (and 
such  an  one  as  would  raise  their  standard,)  by 
which  these  county  courts  might  be  established. 
But  if  the  Convention  had  determined  to  adopt 
the  report  of  the  majority  of  the  judiciary  com- 
mittee, he  Was  willing  to  attempt  to  amend  it  in 
the  best  manner  that  it  might  be,  to  make  it  as  ac- 
ceptable as  possible  to  the  people.  There  would 
be  great  difficulty  in  getting  through  any  other  re- 
port, he  was  aware,  because  there  was  so  great  a 
difference  among  all  the  reports  which  had  come 
from  the  minority  of  the  committee;  and  although 
there  were  many  things  in  the  latter  reports  which 
would  be  preferred  to  the  provisions  in  thelorrner, 
there  would  be  difficulty  in  transferring  them. 
Had  the  minority,  or  those  who  disagreed  with  the 
majority,  got  together  and  agreed  upon  some  plan, 
to  which  they  could  all  give  their  assent,  some 
chance  would  be  given  to  carry  it  through.  But 
he  wished  to  comment  upon  some  portion  of  the 
report;  and  first  he  would  like  some  amendment 
in  the  seventh  section,  but  he  would  not  take  time 
to  comment  upon  that,  as  it  was  not  of  the  greatest 
importance.  He  would  ask,  however,  why  it  was 
that  the  last  clause  of  this  section,  which  was  not 
found  in  the  present  Constitution,  was  inserted 
here  ?  He  found  it  in  the  Constitution  of  1777, 
and  he  believed  that  it  was  brought  from  across 
the  water ;  but  in  1821,  when  we  "had  made  sorre 
progress  to  enlightened  knowledge,  in  liberty,  and 
in  tree  institutions,  it  was  stricken  out.  Why  it 
was  put  in  here,  he  could  not  account  for.  He 
had  no  objections  that  the  courts  should  have  their 
own  rules  and  regulations  so  far  as  regards  the 
privilege  of  saying  who  shall  practice  in  them, 
but  he  had  objeciioiis  to  making  this  a  part  of  the 
Constitution,  so  that  it  could  not  hereafter  be  at 
tered,  if  the  people  required  it  to  be  done.  He 
would  not  have  the  people  bound  down  in  regard 
to  this  matter  by  the  iron  arm  of  the  Constitution. 
What  would  it  be  thought  of  the  farmers  and  me- 
chanics, who  should  corne  here  and  demand  that 
a  law  should  be  passed  requiring  that  a  profession- 
al man  should  undergo  a  certain  examination  and 
receive  a  license  from  an  agricultural  or  olher 
board,  or  a  committee  of  farmers,  before  he  was 
allowed  to  engage  in  the  business  of  farming  or  a 
mechanical  occupation  ?  He  landed  that  they 
would  be  laughed  at.  He  was  opposed  to  any  rule 
for  the  establishment  of  a  superior  and  privileged 
order  of  human  beings.  Such  a  rule  was  nor  a 
proper  one  in  the  laws  of  a  free  people.  It  was 
engrafting  that  on  ihe  Constitution  which  ought 
wot  to  be  engrafted  on  the  Constitution  of  a  free 
people.  This,  too,  was  a  matter  of  legislation.  If 
there  was  to  be  such  a  rule,  it  should  not  be 
placed  in  the  Constitution,  to  remain  unchanged 
until  another  Convention  should  be  called. 

He  would  pass,  however,  to  the  10th  section. 
This  section  provides  that  surrogates  shall  be 
elected  for  four  years,  receive  a  fixed  salary,  and 
shall  not  receive  other  fees  or  compensation. — 
Whichever  principle  should  be  settled  in  Con- 
vention— whether  this  officer  was  to  be  paid  a 
salary  by  the  people,  and  restricted  from  receiv- 
ing fees,  or  was  to  receive  his  pay  by  fees  was  of 
too  little  consequence  for  an  argument.  But  he 
was  opposed  to  one  of  the  provisions  of  the  sec- 
tion. If  the  surrogates  were  to  be  salaried  of- 


604 


,ficers,  (and  he  thought  they  should  be)  their  sa- 
ylaries  ought  to  be  under  the  control  of  the  Board 
;  of  Supervisors,  and  not  left  to  be  fixed  by  the  Le- 
I  gislature.  He  had  prepared  an  amendment  or 
s  substitute  for  the  section,  which  he  would  prefer, 
as  follows : — 

«'  Surrogates  shall  be  elected  for  four  years.  They 
shall  be  compensated  by  salaries  to  be  fixed  by  the  Board 
of  Supervisors  of  their  respective  counties,  and  paid  out  of 
the  county  treasury,  and  all  fees  of  office  received  by  them 
ghall  be  paid  into  the  county  treasury." 

He  had  his  reasons  for  preferring  a  section  like 
that,  which  he  would  give.  How,  he  asked, 
could  the  Legislature  determine  this  question  of 
salary  wisely,  if  a  stated  salary  was  to  be  fixed, 
when,  as  was  well  known,  the  counties  varied 
rery  greatly  in  the  extent  and  in  the  amount  of 
business  which  wrould  fall  upon  the  Surrogate  ? 
Double  the  business  would  be  found  in  one  county, 
•  that  would  exist  in  another,  and  consequently  the 
salary  given  in  one  would  not  be  sufficient  to  com- 
pensate the  officer  in  another.  He  remembered 
that  it  was  once  attempted  by  the  Legislature  to 
fix  the  salary  of  the  county  clerks,  and  they  met 
with  precisely  this  difficulty,  and  were  obliged  to 
give  up  the  scheme.  The  boards  of  supervisors, 
however,  would  know  how  to  fix  this  little  mat- 
ter—they were  as  safe  a  body  as  any  to  which  this 
power  may  be  given — and  would  always  award  a 
liberal  compensation  to  their  own  county  officer. 
He  went  from  this  section  to  section  12.  This, 
he  remarked,  was  the  only  section  in  the  report 
which  was  a  twin.  The  first  section  12  provides 
that  the  justices  of  the  Supreme  Court  shall  be 
nominated  by  the  Governor  and  appointed  by  the 
consent  of  the  Senate  ;  and  then  came  another  sec- 
tion 12,  (with  the  little  word  "  or"  between  the 
two,)  which  provides  for  the  election  of  these  jus- 
tices. He  would  like  to  inquire  the  reason  of 
there  being  two  sections  reported  upon  the  same 
subject  of  an  entirely  opposite  character?  Why 
t.iey  had  these  two  sections  thus  reported,  he 
could  not  account  for.  There  were,  he  did  not 
doubt,  good  reasons  for  it,  and  he  would  like  to 
know  them.  It  might  be,  that  the  committee 
were  at  a  loss  to  know  which  would  be  most  con- 
sonant with  the  views  of  a  majority  of  the  Con 
vention,  or  perhaps  they  desired  to  suit  both  sides 
— those  who  favored  their  appointment,  and  they 
who  upheld  the  elective  system.  They  were  pro- 
bably not  far  out  of  the  way  if  they  supposed  there 
was  a  decided  division  in  the  sentiment  of  the 
Convention  on  this  question.  In  his  own  opin- 
ion, the  first  of  these  twin  sections  should  be 
stricken  out.  It  had  nothing  to  do  there.  The 
People  of  this  state  had  not  demanded  such  a  pro- 
vision at  our  hands.  The  people  of  this  state  So 
not  expect  this  Constitution  is  to  have  that  pro- 
vision inserted  in  it.  They  had  no  desire  for  the 
adoption  of  such  a  principle,  when  they  called 
this  Convention  together.  On  the  contrary,  if 
any  question  was  distinctly  understood  and  settled 
by  the  people  of  all  parties,  it  was  that  the  elec- 
tive princigle^sliould  be  made  t6~apply"ro~all  the 
State  officers.  All  ^p^ti^inJii?.  county  expected 
that  the  people  were  to  elect  all  the  Judges.  The 
people  have  called  1'or  it-;  and  their  mandate  has 
gone  forth  to  this  Convention  that  they  will  have 
that  principle  engrafted  in  the  Constitution.  He 
had  no  hesitation  in  pronouncing  it  a  libel  upon 
the  people,  to  say  that  they  were  not  fully  com- 


petent to  elect  every  one  qf  their  judges,  and  the 
people  had  asked  for  the  privilege  of  doing  so, 
and  had  demanded  it  too.  with  a  loud  voice. 

Mr.  BROWN :  How  long  would  you  elect  them 
for  ? 

Mr.  STRONG  :  That  is  not  so  much  matter. — 
But  he  was  opposed  m  any  way,  shape,  sense, 
or  manner,  except  by  the  people.  The  next  sec- 
lion  he  would  allude  to,  and  for  the  reason  that  he 
was  content  to  take  this  report  with  such  neces- 
sary amendments  as  he  could  reasonably  hope  to 
have  engrafted  upon  it,  and  leave  the  people  to 
obtain  the  remainder  when  they  could  have  an 
opportunity  of  affecting  it.  It  he  could  obtain 
such  modifications  in  it  as  would  meet  the  most 
earnest  wishes  of  the  people,  and  at  the  same  time 
get  gentlemen  here  to  accept  of  teriiis  which 
would  place  them  in  a  middle  ground,  he  would  be 
satisfied  with  that.  To  effect  this  he  was  willing 
to  give  up  some  things  which  he  deemed  desirable, 
He  would  pass  over  them  to  the  15th  section.  So 
far  as  this  section  had  gone  it  was  very  well.  It 
provides  that  the  people  shall  continue  to  elect 
their  justices  of  the  peace,  their  term  of  office  to 
be  four  years,  and  their  number  and  classification 
to  be  regulated  by  law.  He  had  a  few  words  to 
say  in  regard  to  the  number  of  these  justices. — 
Those  two  words — "the  number" — gave  great  im- 
portance, in  his  mind,  to  the  section.  Without 
those j^wo  words,  he  should  object  to  the  section. 
The  time  might  come,  he  supposed,  when  in  many 
of  the  towns  it  would  be  quite  unnecessary  to 
have  four  justices  of  the  peace.  In  some  towns, 
one  justice  was  all  that  was  required  to  do  the 
business,  and  in  most  of  them,  two  were  all  that 
the  people  needed.  He  had  often  heard  it  said, 
and  it  was  a  good  argument,  that  if  the  business 
of  a  town  was  divided  among  four  justices  it 
would  be  good  for  nothing  to  either.  And  in 
consequence  of  this,  it  was  found  impossible  to 
procure  as  good  talent  in  these  local  offices  as  they 
were  worthy  of.  If  you  divide  the  duty  up  so 
much  in  these  towns,  you  never  can  get  proper 
men  to  fill  these  offices.  Reduce  the  number,  and 
you  may  get  proper  men  ;  and  justice  may  be  pro- 
perly administered.  These  officers  were  often 
found  going  begging  in  Western  New- York.  If 
the  number  were  lessened,  and  better  men  retain- 
ed, by  reason  of  better  inducements,  the  charac- 
ter of  the  office  would  -be- improved,  its  dignity 
would  be  increased,  and  ther£,.would  be  a  better 
administration  of  j  ustice.  He  was  in  favor,  tfeere- 
fore  of  giving  the  Legislature  power  to  so  regu- 
late this  matter  that  the  people  might  determine 
in  the  several  towns  at  their  town  meetings,  how 
many  justices  they  would  elect.  Every  four  years 
they  could  fix  the  number  according  to  their 
wants  and  to  the  amount  of  business  in  the  town. 
So  far  as  the  section  went,  then,  as  he  had  before 
said,  he  was  willing  to  agree  to  it,  but  the  diffi- 
culty was  that  it  did  not  go  far  enough.  He  had 
therefore  prepared  an  amendment  to  carry  out  his 
views,  which  was  to  add  to  the  section  as  it  stood 
the  following  provision : 

Justices  of  the  Peace  shall  have  original  jurisdiction  to 
the  amount  of  two  hundred  and  fifty  dollars,  and  exclusive 
jurisdiction  for  one  hundred  dollars.  Laws  shall  be  pass- 
ed to  abolish  appeals  and  certioraris,  as  now  authorized, 
from  courts  of  Justices  of  the  Peace,  and  lor  further  trial 
and  tinal  decision  in  such  ca-es  in  the  same  town  where 
the  first  trial  was  had,  or  in  an  adjoining  town. 


605 


With  this  addition  it  would  be  a  very  nice  sort 
of  a  section.  The  jurisdiction  of  these  courts 
now  reached  to  £']00,  but  it  was  conclusive  only 
"iO.  He  might  be  mistaken  in  this,  as  it  wa> 
some  time  since  he  had  practised  even  in  just  ices 
courts.  He  was  no  lawyer  ;  and  so  if  he  did  not 
say  it  right,  why  professional  gentlemen  who 
heard  him  could  correct  him. 

Mr.  BROWN  :  About  as  near  right  as  could  be 
expected. 

Mr.  STRONG:  The  gentleman  from  Orange, 
(Mr.  BROWN)  says  about  as  near  right  as  can  be 
expected  from  a  farmer. 

Mr.  BROWN:  No,  no;  I  did  not  say  from  a 
farmer;  you  put  that  in. 

Mr.  STRONG :  But  he  would  ask  why  there 
should  not  be  allowed  to  these  courts  exclusive 
jurisdiction  in  suits  to  the  amount  of  $100.  If 
gentlemen  would  show  any  reason  why  this 
should  not  be  allowed,  he  would  not  make  objec 
tion.  Application  had  been  made  to  the  legisla- 
ture, in  previous  years,  to  extenHThe  jurisdiction 
so  far  as  $100;  and  in  184U,  R'ad  it  not  been  for 
the  strong  and  bitter  opposition  of  gentlemen  of 
the  legal  profession  against  it,  such'a  bill  would 
have  prevailed.  But  the  friends  of  that  bill,  fear- 
ing to  jeopard  its  passage  by  asking  so  much, 
compromised  at  $50.  Had  they  known  their 
strength,  they  might  have  extended  it  to  $500. — 
It  was  his  belief,  at  that  time,  and  he  was  still 
firm  in  that  belief,  that  when  the  people  demand- 
ed a  reform  they  will  eventually  accomplish  it. — 
He  would  then  take  all  he  could  get,  and  trust 
the  people  to  secure  the  rest  afterwards.  So  far 
as  his  knowledge  went — and  he  did  not  have  a 
very  great  acquaintance  with  law — yet  heliad  a 
faint  knowledge  oTth'e  practice  in  justices'  courts 
— a  great  share  of  business  in  the  country  goes  in- 
to the  justices'  courts.  The  plaintiff  now  can  sue 
in  a  justices' court  over  $50;  but  yet  in  practice 
it  is  not  so.  This  shows  that  the  people  approve 
of  them,  and  they  also  will  sanction,  and  do 
demand,  that  their  jurisdiction  shall  be  extended. 
The  question  arises  why  these  courts  should  not 
have  origin- 1  jurisdiction  in  $250?  He  had  yet 
to  learn  why  a  note  of  $250  could  not  as  well  "be 
collected  in  a  justice's  court,  as  in  a  county  court? 
and  if  gentlemen  could  give  any  good  reason 
against  it,  he  would  listen  to  them  with  a  good 
deal  of  pleasure.  Why  should  not  a  note  be  col- 
lected in  a  justices'  court,  where  all  the  costs  of 
the  suit  would  be  five  dollars,  unless  they  have 
foreign  witnesses,  rather  than  carry  it  to  a  county 
court,  where  a  bill  of  costs  will  swell  up  large 
enough  to  swallow  up  the  judgment?  It  might 
be  answered  that  these  courts  were  not  compe- 
tent—that  they  had  not  good  juries.  Then  why 
may  not  the  Legislature  pass  an  act  providing  for 
as  good  persons  in  justices'  courts,  as  well  as 
courts  of  Record  ?  When  the  farmer  had  a  cause 
to  be  tried,  he  would  always  prefer  to  select  a  ju- 
ry from  amoug_those  of  his  own,  class,  as  they 
could  best  appreciate  the  case.  Your  men  in  the 
country  do  not  want  professional  men  as  jurors  to 
settle  a  dispute.  And  even  when  a  man  is  to  be 
tried  for  his  life,  or  for  a  criminal  offence,  he 
looks  upon  the  men  who  are  presented  for  the 
jury  box,  and  when  his  eye  rests  upon  a  man  in 
the  farmer's  garb,  he  says  "  let  him  pass."  They 
are  always  willing  to  trust  their  case  with  such 


men.  People  of  all  classes  prefer  to  have  their 
matters  in  dispute  settled  by  men  who  labor  for 
a  living — mechanics  as  well  as  farmers — and  me- 
chanics have  interests  inseparably  connected  with 
the  agriculturists,  for  farmers  and  mechanics 
make  the  very  best  of  jurors.  There  is  not  a 
town  in  the  State  where  there  would  not  at  all 
times  be  found  plenty  of  good  men  to  form  a  jury. 
He  had  often  seen  far  better  jurors  in  justices'  j 
courts  than  he  had  ever  seen  in  courts  of  Record.  . 
And  to  secure  this,  let  there  be  a  list  filed  with 
the  town  clerk  of  such  persons  as  were  liable  and 
competent  to  perform  the  duty,  and  who  could  be 
at  hand  at  all  times.  Thus,  the  objections  to  this 
proposition  were  all  answered;  and  he  was 
obliged  to  anticipate  gentlemen  in  what  their  ob- 
jections probably  would  be.  It  might  be  said 
that  a  suit  brought  by  a  man  living  at  a  distance, 
in  a  justice's  court,  the  witnesses  would  have  to 
be  transported  from  a  great  distance.  It  was  true 
that  in  a  suit  for  $100,  it  would  be  necessary  to 
do  so,  and  it  would  be  right  that  it  should  be  done. 
But  the  suitor  would  still  have  a  right  to  com- 
mence his  cause  in  a  court  of  record,  if  he  pre- 
ferred to  do  so;  he  was  not  deprived  of  the  privi- 
lege of  so  doing.  If  a  party  from  New  York 
brings  a  suit  in  the  country,  there  arises  what 
is  called  the  race  for  witnesses,  as  it  is  called, — 
the  strife  to  see  who  can  bring  the  greatest  num- 
ber of  witnesses  for  his  own  side,  Thus  the  same 
evil  complained  of  is  not  remedied  by  having  a 
suit  in  the  county  courts.  Parties  are  not  cut  off 
from  choosing  between  the  (wo,  when  the  demand 
is  over  the  amount  of  $100.  He  knew  there  were 
many  members  of  this  Convention  who  were  anx. 
ions  to  have  conclusive  jurisdiction  up  to  $250 
given  to  justices'  courts;  but  they  prefer  not  to 
present  a  plan,  seeing  as  they  already  do  the  dif. 
ficulty  which  there  exists  in  gentlemen,  who  oc- 
cupy so  different  opinions  upon  other  questions, 
finding  a  medium  where  they  could  come  togeth- 
er upon  a  middle  ground;  but  if  they  will  meet  us 
laymen  on  a  proper  middle  ground,  they  will  lind 
no  difficulty  in  our  coming  over  to  meet  them  — 
For  his  own  part,  he  was  desirous  to  abolish  the 
present  system  of  appeals.  If  gentlemen  asked 
whv,  he  answered,  that  it  was  a  system  under 
which  the  people  had  groaned  for  years  and  years. 
The  Legislature  had  been  applied  to  for  relief, 
but  in  vain.  And  every  thing  having  failed  elee- 
where,  the  people  demand  of  this  Convention  to 
remedy  UnltrraMer.  The  system  of  appeals  is 
that  which  the  people  have  again  and  again  so 
loudly  complained  of,  and  all  their  denw;<is  and 
resolutions  speak  in  volumes  to  us  and  in  language 
not  to  be  mistaken.  Here  is  the  place  that,  the 
people  have  called  on  and  to,  in  tones  of  thunder; 
and  for  one,  he  was  not  disposed  to  disivtiard  their 
voice.  They  ask  us  to  make  for  them  a  system 
by  which  they  shall  not  be  cheated  out  of  or 
lawed  out  of,  if  he  might  say  so,  of  the  hard 
earnings  of  years  of  toil,  by  carrying  up  a  pei- 
y  suit  from  county  court  to  circuit  court,  then 
o  the  supreme  court,  and  then  to  the  Chan- 
cellor's court,  and  then  to  the  court  whero 
hey  commit  all  kinds  of  errors;  and  when 
le  gets  through  these,  he  is  a  beggar — a  pau->^ 
>er.  First,  then,  let  this  odn.ns  system  of  ap. 
leals  be  swept  from  the  statute  books  ;  then  place 
D  the  Constitution  a  provision  which  shall  com- 


606 


pel  the  Legislature  to  make  the  justices'  courts 
iwhat  they  should  he.  He  would  make  this  duty 
imperative  upon  the  Legislature,  and  therefore  he 
had  used  in  his  amendment  the  word  shall,  so 
that  they  could  have  no  opportunity  to  dodge 
round  the  plain  provisions  of  the  Constitution. — 
The  Legislature  should  fix  the  place  of  the  defi- 
nite or  conclusive  trial  in  or  near  the  place  where 
the  party  lives.  When  this  command  should  be 
given  and  obeyed,  there  would  be  done  what  the 
people  had  asked  for  years  to  have  accomplished. 
In  further  anticipating  the  objections  of  gentle- 
men, he  supposed  it  might  be  asked  what  he  pro- 
posed to  establish  in  lieu  of  the  present  system  of 
appeals  ?  He  answered  by  referring  to  his  amend- 
ment, wherein  he  provided  that  the  legislature 
jjshall  pass  laws  to  abolish  the  present  system,  and 
fprovide  for  the  final  trial  and  final  decision  of  suits 
for  $250  in  the  same  town  where  brought,  or  in 
'an  adjoining  town,  where  there  was  no  just  cause 
for  carrying  the  cause  up.  He  was  well  aware 
that  this  system  would  meet  the  decided  disap- 
probation of  a  large  class  of  the  members  of  the 
Convention,  and  there  need  be  no  doubt  as  to  who 
composed  that  class.  But  he  could  say  that  by 
following  out  his  suggestions,  an  important  prin- 
ciple would  be  established,  and  that  one  for 
which  the  people  had  loudly  called.  The  old 
system,  against  which  he  had  spoken,  had  never 
had  any  other  effect  than  to  take  money  from  the 
pockets  of  laboring  men.  A  party  wishing  to 
appeal  a  case,  has  merely  to  make  his  affidavit 
and  present  it  to  the  judge  for  his  sanction. — 
And  he  had  asked,  the  other  day,  in  the  presence 
of  several  legal  gentlemen,  if  they  had  ever 
known  a  case  where  a  judge  had  refused  to  grant 
an  appeal.  But  one  gentleman  answered,  and  he 
had  known  of  but  a  single  instance.  He  had  ne- 
ver known  an  instance  where  the  judge  refused 
to  grant  an  appeal,  for  it  was  a  very  simple  and 
very  quick  way  of  doing  business.  The  party 
takes  the  papers  upon  which  he  founds  his  ap- 
plication to  the  judge,  who  sometimes  looks  at 
the  inside  of  them,  and  sometimes  not,  just  as  he 
chooses,  and  writes  something  on  the  back  of  it 
in  this  way,  "  This  appeal  allowed  ;"  and  while 
with  one  hand  he  reaches  back  the  papers,  he 
reaches  out  the  other  to  receive  the  dollar.  If 
that  was  not  a  shaving  machine,  he  did  not  know, 
what  might  be  called  one. 

Mr.  STETSON  :     Only  50  cents. 

Mr.  STRONG :  If  this  was  so,  then  he  was 
sure  the  judge  never  took  the  trouble  to  examine 
the  case  or  read  the  documents.  The  party  goes 
back  to  the  justice  before  whom  the  case  was 
tried,  to  whom  must  be  paid  two  dollars.  A  gen- 
tleman corrects  me  again  and  says  only  75  cents. 
Well,  it  made  no  difference  as  to  the  amount  of 
the  fee ;  he  desired  to  explain  the  process.  The 
justice  for  this  fee  makes  out  a  statement  of  the 
testimony,  with  a  history  of  the  trial  before  him, 
which  is  sent  up  with  the  suit  to  the  county 
court,  and  the  whole  neighborhood  is  summon- 
ed, and  sometimes  kept  there  the  whole  term 
of  the  court.  Here  the  case  is  argued  by 
legal  gentlemen,  and  a  decision  is  rendered  by 
the  judge,  either  confirming  or  reversing  the  de- 
cision given  by  the  justice.  And  this  makes  new 
costs.  In  some  instances,  the  amount  iii  contro- 
versy is  not  more  than  six  cents,  and  he  knew  of 


a  case  in  which  it  was  but  one  cent.  After  this 
decision  is  obtained,  one  party  or  the  other  believes 
that  injustice  has  not  been  done  them,  and  they 
appeal  again  from  one  court  to  another  up  to  the 
court  of  last  resort.  It  is  that  there  may  be  some 
remedy  for  this  crying  evil,  which  is  eating  up 
their  substance,  that  the  people  now  demand  an 
extension  ot  the  jurisdiction  of  their  own  jus- 
tices' courts.  There  are  few  demands  for  more 
than  $250 — and  such  matters  ought  to  be  decided 
in  the  same  town  where  they  arise,  or  at  least 
not  be  carried  farther  than  to  an  adjoining  town. 
To  effect  this  he  would  have  provisions  so  sim- 
ple and  plain  that  it  would  not  be  necessary  to 
employ  counsel.  In  Ohio,  where  he  resided, 
some  time  since,  they  had  a  very  simple  method 
of  making  appeals.  All  that  was  necessary  was 
to  take  your  papers  to  the  justice,  and  get  some 
responsible  person  as  your  bail,  and  apply  for  an 
appeal  of  the  case.  The  justice  examines  the 
papers,  and  ascertains  that  the  bail  is  good,  and 
then  writes  on  his  docket,  "  This  case,  appealed 
to  the  court  of  common  pleas,"  entering  the  name 
of  the  bail, — and  all  the  fee  charged  is  one  shil- 
ling. He  had  appealed  5  cases  in  this  way,  in 
all  on  them  he  had  only  paid  a  shilling  for  each 
case.  Gentleman  will  perhaps  complain  that  this 
furnishes  no  sufficient  security  for  cost.  If  a  law 
was  passed  making  the  security  satisfactory,  and  its 
requisitions  were  complied  with,  this  objection 
would  not  certainly  be  valid.  "When  the  requisi- 
tion is  complied  with,  was  not  that  as  strong  as  a 
bond.  The  only  difference  would  then  be  in  the 
amount  of  the  fees  paid.  He  would  have  the  j  us- 
tice  make  out  a  statement  of  the  case,and  the  testi- 
mony which  should  be  carried  to  the  county  judge, 
who  should  examine  the  case,  and  if  the  judgment, 
was  right,  in  his  opinion,  he  should  confirm  it ; 
and  if  an  error  had  been  made,  he  should  point 
out  wherein  the  error  consisted,  and  send  back 
the  cause  to  be  re-tried,  either  in  the  same  town 
or  in  one  adjoining.  He  would  say  the  adjoin- 
ing town  because  there  may  be  an  undue  excite- 
ment in  one  town  arising  from  different  causes. — 
If  a  party  should  be  sued  by  an  individual  from 
another  town,  there  was  sometimes  a  desire  on 
the  part  of  the  people  in  the  latter  to  shield  their 
own  townsman  in  the  suit,  even  against  the 
equity  of  the  case  ;  and  by  having  the  right  to 
carry  his  suit  to  another  town,  an  impartial  trial 
^might  be  obtained. 

The  legislature  should  provide  for  making  these 
justices'  courts  better  tribunals  than  they  now 
are.  In  the  second  trial  of  a  case  let  there  be 
*three  justices  associated,  or  an  arrangement  by 
which  a  county  judge  can  go  into  the  towns  at 
stated  times,  and,  associated  with  three  of  the  jus- 
tices, hold  courts  for  trying  up  all  these  minor 
causes  which  exist.  Would  not  this  be  a  tribunal 
as  capable  of  settling  all  cases  to  the  amount  of 
$250  as  well  as  a  county  court  could  do  it  ?  And 
then  the  everlasting  and  terrible  system  of  ap- 
peals would  be  got  rid  of  which  are  so  ruinous 
and  which  do  no  nobody  any  good,  except  those 
who  fob  the  fees.  It  was  a  court  near  their  own 
homes,  which  they  could  attend  with  little  ex- 
pense and  loss  of  time,  and  where  witnesses  and 
jurors  could  be  got  near  their  own  doors,  that  the 
people  asked  for,  and  were  anxious  to  obtain,  and 
where  they  can  all  go  home  at  night.  And  here 


607 


you  have  the  relief  that  the  people  who  have  been 
suffering  for  years,  have  so  loudly  called  for, — who 
can  oppose  this  ?  He  sincerely  believed  this  Con- 
vention were  prepared  to  grant  this  request.  He 
could  see  no  reasonable  objection  to  such  a 
scheme,  and  he  was  prepared  to  believe  thac  the 
gentlemen  of  the  le^al  profession  in  this  body  had 
too  much  honor  to  be  influenced  by  personal  con- 
siderations in  this  matter:  they  would  not  oppose 
this  valuable  reform  for  the  sake  of  keeping  up 
their  fees.  He  could  not  say  this  of  all  the  pro- 
fession, however.  With  a  few  amendments,  such 
as  he  had  indicated,  he  was  prepared  to  subscribe 
to  the  report  of  the  majority  of  the  committee. — 
And  why  cannot  the  laymen  ?  Why  cannot  the 
appeals  of  the  bleeding  country  induce  the  law- 
yers to  meet  them  on  this  matter.  There  was  one 
more  consideration  which  he  desired  to  urge,  and 
that  was,thatby  esMjlisMog- these  j  ustices'  courts 
with  an  enlarged  jurisdictipn^.a.^r.eaLamouat  of 
:  the  business  of  eoujrts  of  record  would  be  taken 
down  in  them,  and  thus  relieve  them  of  a  portion 
of  that  which  blocked  up  those  courts.  It  would 
provide  a  cheap  remedy  for  the  farmer  or  me- 
chanic, to  settle  their  difficulties  near  home,  by 
which  an  untold  expense  would  be  saved,  which 
the  people  have  been  paying  for  years  and  years. 
Men  of  fortune,  merchants,  jobbers,  speculators 
and  brokers  might  have  their  gigantic  and  ex- 
pensive courts, to  try  their  large  causes,  in  which 
their  thousands  are  at  stake,  but  the  laboring  peo- 
ple did  not  need  them.  They  ask  this  favor  of 
the  convention,  that  their  rights  may  be  looked 
after  as  well  as  others.  This  voice  came  from  the 
bone  and  sinew  of  the  country.  The  men  who 
raise  your  bread — who  till  the  ground,  who  ho- 
nestly labor  for  a  livelihood  !  And  the  latter  class 
of  men  were  those  to  whom  all  shoved  defer. — 
Without  them  our  country  could  rtbt  exist. — 
Without  their  labor  on  their  farms  and  in  their 
workshops,  fine  gentlemen  might  starve  and  die 
with  their  silken  purses  full  of  shining  gold,  and 
their  pockets  crammed  with  bank  notes.  And 
these  are  the  men  who  in  time  of  war  defend  the 
soil.  They  and  their  sons  in  time  of  war  front 
their  breasts  to  the  pointed  steel,  and  bleed  and 
die  for  the  liberties  and  honor  of  the  country. — 
He  could  say  to  this  convention,  that  by  conced- 
ing to  them  their  demand  in  this  respect,  by  es- 
tablishing even  but  one  court  upon  the  plan  he 
(Mr.  S.)  had  here  proposed,  they  would  save  to 
those  men,  in  a  few  years,  more  than  all  the  cost 
of  this  convention.  It  would  be  an  act  of  justice 
which  would  render  the  memory  of  this  conven- 
tion, and  those  who  established  for  the  working- 
men  this  great  remedy,  sacred  and  honorable — 
they  will  have  done  a  deed  that  shall  be  an  eter- 
nal fountain  of  honor  and  glory  to  us  and  to  the 
State  long  after  the  present  generation  have 
ceased  to  exist,  and  when  all  the  actors  in  this 
body  are  laid  down  in  their  silent  narrow  homes. 
Mr.  SWACKHAlVJER  was  anxious  thdt  some 
member,  other  thanot  the  legal  profession,  would 
liave  pit-ceded  him  in  (he  discussion  ot  (he  nio- 
m.-iuoui  question  under  consideration,  but  as  this 
was  the  4th  day  ot  the  debate  and  no  laymen,  as 
they  were  temied  here,  had  ventured  to  break 
ground  on  thi.s  my^tetious  subject,  it  was  left 
lor  him,  without  the  aid  of  the  ministers  or  high 
priests  of  the  law,  to  look  beyond  the  veil  which 


at  the  earliest  period  of  our  history  sct-rns  to  have 
been  placed  between  the  people  and  the  adminis- 
trationof  their  laws.  It  was  true  that  the 
gentleman  troni  Monroe  (Mr.  STRONG)  had 
addressed  the  committee  but  even  he  was 
quasi  lawyer.  He  was  aware  that  the  fee- 
hie  attempt  he  was  about  making  to  investi- 
gate this  matter  would  be  criticised  by  the  legal 
profession,  and  every  word  that  fell  ir>m  him 
would  be  placed  in  the  most  unfavorable  light  by 
the  advocates  of  the  old  decaying  judiciary  sys- 
tem. He  also  felt  his  inability  to  contend  with 
able  gentlemen,  educated  in  the  science  of  the 
law.  He  wished  it  distinctly  understood,  in  ad- 
vance, that  whatever  allusion  he  might  make  to 
members  of  the  bar,  would  riot  be  in  feelings  of 
unkindness  towarus  any  gentleman,  or  with  the 
view  of  drawing  a  distinction  between  persons  of 
different  occupations  in  that  Convention.  He 
was  proud  to  admit  that  many  of  the  greatest 
siatesrnen  and  purest  patriots  of  the  pasi  and  pres- 
ent age  had  arisen  from  amongst  them.  Besides, 
it  was  but  fair  to  suppose  that  thev  were  ac- 
tuated by  the  highest  motives,  for  thcy'in  common 
with  other  members  of  this  Convention,  would 
henceforth  become  a  part  of  their  country's  history. 
That  every  act,  every  speech  and  every  vote  given 
here  would  receive  the  severest  scrutiny,  not 
only  of  the  present  but  of  future  generations. — 
He  felt  thankful  to  the  judiciary  committee,  for 
the  reports  they  had  laid  before  the  Convention. 
Much  had  been  said  against  them,  yet  it  was  his 
opinion  that  either  of  them,  if  adopted,  would 
prevefar  superior  to  the  existing  system.  While 
he  conceded  this,  he  was  compelled  to  dissent 
from  some  of  the  conclusions  to  which  the  com- 
mittee had  arrived.  He  regretted  this  the  more 
from  the  fact  that  he  considered  the  gentleman 
who  presided  over  that  (Mr.  RUGGLES)  commit- 
tee, one  of  the  purest  men  and  most  able  jurist 
in  this  country — his  associates  were  also  men  of 
great  ability.  It  was  under  such  feelings  that  he 
was  half  inclined  to  doubt  the  correctness  of  his 
own  views,  and  yield  to  the  conclusions  of  those 
of  more  experience.  As  it  was  decided  that  the 
merits  of  the  whole  question  was  under  consid- 
eration, he  had  no  apology  for  not  confining  his 
remarks,  entirely  to  his  amendment ;  nor  for  fol- 
lowing other  gentlemen  in  the  path  they  had 
marked  out.  The  advocate  from  Ontario"  (Mr. 
WORDEN)  opened  the  discussion  in  favor  of  re- 
taining something  in  the  new  Constitution  to  per- 
petuate the  memory  of  the  deceased  court  of 
chancery,  and  when  the  gentleman  from  Genesee 
(Mr.  RICHMOND)  merely  intimated  his  objections, 
on  the  ground  he  (Mr.  S.)  presumed  that  its 
character  for  equity  did  not  stand  sufficiently 
high,  while  living,  to  entitle  it  to  so  favorable 
remembrance,  now  that  it  was  departing  this  life, 
he  was  sneeringiy  asked  "  what  could  he  know 
about  it  ?  he  had  never  studied  law."  Next  we 
find  the  able  advocate  on  the  same  side,  from 
Columbia  (Mr.  JORDAN,)  contending  for  at  least 
a  small  remnant  of  this  glorious  institution. — 
This  gentleman  alluded  to  some  remarks  submit- 
ted by  him  (Mr.  S.)  the  other  day,  on  another 
part  of  the  constitution,  when  he  (Mr.  S.)  ex- 
pressed a  desire  to  see  it  made  as  concise  and  in- 
telligible as  possible.  He  (Mr.  J.)  said  that  he 
(Mr.  S.)  presumed  to  think  that  our  laws  could 


608 


be  contained  in  a  little  book  not  larger  than  an 
Almanac.  "  He  thinks  he  (Mr.  S.)  could  not 
have  considered  the  subject — it  must  be  an  able 
yankee  who  could  read  and  understand  the  science 
of  law  in  one  day.  He  further  said  that  he  would 
appoint  him  (Mr.  S.)  to  codify  the  laws."  He 
did  not  remember  making  the  remark  attributed 
to  him,  but  he  would  now  say  that  he  knew 
of  no  better  comparison  in  one  respect — 
for  lie  would  feel  about  as  secure  in  tiu*ting  his 
property  to  the  fulfilment  of  a  prognostication  in 
an  American  Almanac,  as  he  would  in  the  result 
of  a  suit  in  the  court  of  chancery,  no  matter  how 
just  his  claim,  or  how  plain  his  case.  There 
would  be  this  advantage  in  the  first  game  of  ha- 
zard, you  would  be  certain  to  know  the  result 
within  a  year,  which  in  the  other  case  it  would 
be  necessary  to  have  your  life  insured  if  you  ex- 
pected to  live  long  enough  to  get  a  decision. — 
With  reference  to  his  "  nomination  as  a  cornrnis 
sioner  to  codify  the  laws,"  he  begged  to  decline 
the  honor,  lor  he  had  no  idea  that  the  appoint- 
ment would  be  confirmed,  especially  if  it  had  to 
be  'acted  upon  by  the  legal  profession,  for  it  was 
evident  that  the  gentleman  was  of  the  opinion 
that  all  knowledge  and  learning  was  confined  with- 
in its  limits.  Then  again,  it  was  questionable 
whether  the  appointment  would  stand  law,  under 
his  (Mr.  JORDAN'S)  judiciary  system,  as  some 
learned  lawyer  might  raise  the  question,  whether 
it  was  made  under  the  rules  ot  law  or  equity,  it  hav- 
ing been  repeatedly  admitted  here  that  cases  have 
been  carried  up  through  four  or  five  courts, at  an  ex- 
pense of  thousands  of  dollars, in  order  that  the  con- 
centrated wisdom  of  the  judicial  force  of  this  State 
might  determine  where  law  ends  and  equity  be- 
gins. He  found  another  able  advocate  for  this  con- 
demned remnant  of  kingly  power  and  of  the  civil 
law, n»  the  gentleman  from  Allegany,(Mr.ANGEL,.) 
He  admits  tnat  we  have  been  "  progressing  in  ju- 
dicial darkness  ever  since  the  adoption  of  the  pre- 
sent Constitution  ;"  yet  he  ««  sighs"  for  fear  this 
precious  "  institution"  will  be  /abolished,  an<i  is 
"alarmed"  at  the  thought  of  blending  both  sys- 
tem? into  one;  and  as  though  his  apprehensions 
were  founded  in  the  expectation  that  the  "  inno- 
vation" would  lead  to  barbarism,  he  informs  us 
that  "  under  the  civil  law  it  was  once  the  practice 
tor  creditors  to  dissect  up  debtors  and  distribute 
their  bones  amongst  them."  Seneca  tells  us  of  a 
powerful  prince,  who  lived  about  the  same  period 
of  the  world,  that  was  in  the  habit  of  ordering  his 
most  prominent  subjects  to  place  their  sons  in  such 
an  attitude  as  that  their  hearts  might  be  used  as 
targets.  And  in  one  instance,  while  the  boy  was 
weltering  in  his  own  blood,  he  required  his  father 
to  cut  out  his  heart,  that  he  might  see  how  near 
he  had  hit  the  mark.  The  same  prince  used  to 
amuse  himself  by  inviting  his  neighbors  tor  feasts, 
at  which  he  would  furnish  them  with  a  variety  ot 
dishes,  and  alter  they  had  eaten,  would  intorm 
them  that  they  had  been  dining  on  their  own 
children.  The  same  monster  kept  a  large  num- 
ber ot  fish  ponds,  for  the  pleasure  of  feeding  them 
with  live  subjects.  Perhaps  the  gentleman  would 
contend  that  the  institution  of  a  code  here  would 
bring  about  similar  resul.s.  It  would  be  about  as 
logical  a  mode  of  treating  the  subject.  But  the 
analogy  was  not  fair,  nor  the.  reasoning  jusr.  He 
also  thinks  the  non-imprisonment  law  and  the  ex- 


emption act  have  occasioned  litigation.  Here  Mr. 
S.  entirely  differed  with  hisfriend.  That  humane 
laws  founded  on  just  principles  could  increase 
evils  existing  in  society,  could  not  be  demonstra- 
ted by  fads.  He  fui  ther  says  he  can  propose  a 
plan  fqr  legislation  by  which  many  of  the  evils  of 
our  judiciary  system  might  be  remedied.  Procras- 
tination had  always  been  the  enemy  of  reform,  and 
this  was  the  way  its  opponents  had  always  talked. 
But  gentlemen  might  as  well  make  up  their  minds 
to  meet  the  question  now,  for  no  chance  would 
be  left  by  which  they  could  evade  it.  Next  in 
order  was  the  gentleman  from  Chautauque,  (Mr. 
MARVIN,)  and  he  hoped  the  gentleman  was 
in  his  seat.  It  would  be  recollected  that  he  (Mr. 
S.)  made  some  remarks  in  answer  to  a  speech 
of  his  on  a  former  occasion,  and  that  no  notice 
was  taken  of  them  by  him  (Mr.  M.)  until  several 
days  after,  and  that,  too,  during  his  (Mr.  S.)  ab- 
sence, although  he  (Mr.  M.)  was  in  this  room  at 
the  time  they  were  made. 

Mr.  MARVIN  :  Does  the  gentleman  pretend 
to  say  that  I  heard  his  remarks  as  published,  on 
the  occasion  alluded  to  ? 

Mr.  SWACKHAMER :  I  do  say  the  gentle- 
man admits  in  his  explanation  that  he  heard  a 
part  of  them,  and  if  he  did  not  hear  them  all,  it 
was  his  own  fault,  as  the  gentleman  was  in  the 
house  the  whole  time,  his  (Mr.  S.)  remarks  oc- 
cupying only  about  ten  minutes.  But  it  was  his 
wish  to  do  every  gentleman  justice,  and  if  he  had 
misconceived  the  gentleman,  he  was  glad  to  be 
corrected.  He  would,  however,  prefer  that 
it  should  have  been  done  while  he  was  present. 
The  gentleman  thought  that  some  plans  he  had 
seen  would  do  very  well  where  justice  was  bought 
and  sold.  Does  he  allude  to  the  amendment  now 
before  the  Convention  ? 

Mr.  MARVIN  :  I  do  not ;  I  referred  to  plans 
I  have  seen  in  the  newspapers. 

Mr.  SWACKHAMER  apprehended  that  no 
such  system  could  obtain  here,  and  for  that  rea* 
son  he  could  not  see  the  force  or  application  of 
the  gentleman's  remarks  to  any  plan  submitted  to 
the  Convention.  He  (Mr.  M.)  was  pleased  with 
the  remark  of  Mr.  Van  Buren,  who  said  while  a 
member  of  the  Convention  of  1S21,  that  they 
ought  not  to  destroy,  but  to  amend  and  improve. 
This  was  very  well,  but  with  the  highest  possible 
respect  for  the  great  man  referred  to,  and  his  patri- 
otic associates  in  that  venerated  body,  he  must  be 
permitted  to  say  that  our  judiciary  system  had  been 
amended,  or  rather  mended,  in  the  manner  con- 
demned by  the  purest  law  giver  known  in  history. 
Which  wa^  that  "  no  man  putteth  a  piece  of  new 
cloth  into  an  old  garment :  for  that  which  is  put  in 
to  fill  it  up,  taketh  from  the  garment,  and  the 
rent  is  made  worse."  So  it  was  with  the  present 
judiciary  system,  it  was  "  patched"  by  that  Cifti- 
vention  in  the  manner  mentioned,  and  the  truth 
was  that  it  had  been  continually  growing  worse. 
The  same  gentleman  informs  us  "  that  in  coun- 
tries where  the  civil  law  prevails  that  it  requires 
several  years  to  get  a  decision."  Under  our  system 
it  takes  a  quarter  of  a  century,  and  requires  the 
expenditure  of  a  fortune  to  arrive  at  a  result  in 
our  courts  of  law  and  equity.  He  illustrates  his 
opinion  that  our  laws  are  necessarily  ambiguous 
and  difficult  to  be  understood ;  by  a  conversation 
u  hich  he  had  had  with  a  Baptist  friend,  on  the 


609 


great  variety  of  opinions  amongst  the  various  re- 
is  denominations.  He  did  not  consider  the 
illustration  a  very  fortunate  one,  for  while  Chris- 
tians differed  in  regard  to  questions  of  minor  im- 
portance, all  acknowledged  the  moral  obligations 
resting  upon  every  member  of  society,  and  knew 
that  any  violation  of  the  divine  law  would  receive 
merited  punishment,  while  under  our  human  law 
the  guilty  go  free,  and  tl 
for  that  redress  which 


ressed  seek  in  vain 
well  organized  society 


owes  to  its  most  humble  members.  There  was  an- 
other branch  of  the  gentleman's  argument  that  he 
would  notice  previous  to  concluding  his  remarks. 
Before  proceeding  to  pull  down,  to  use  the  ap- 
pellation now  applied  to  judicial  reform,  he 
would  say  that  he  entertained  as  high  respect 
and  as  much  veneration  for  time  honored  institu- 
tions as  any  gentleman.  But  false  systems,  and 
aristocratic  establishments  could  find  no  favor 
with  him,  even  though  they  were  covered  over 
with  the  dust  of  antiquity,  and  were  coeval  with 
the  history  of  man.  He  considered  thejsourt  of 
chancery  an  institutiga_a£ this  characterTancT  for 
this  reason  it  ought  to  be  abolished.  It  was  a 
compound  of  aristocracy  and  despotism.  It  had 
its  origin  from  "be1rnrd~tfre~ " "thrune  of  kings — it 
had  been  insiduously  grasping  power  and  usurp- 
ing authority  unknown  to  any  other  legal  tribu- 
nal, until  millions  of  property  and  the  rights  and 
happiness  of  thousands  of  our  citizens  depended 
on  the  dicta  of  this  one  man  power.  It  had 
been  his  fortune  to  call  public  attention  to  this 
dangerous,  and  he  had  almost  said  lawless  insti- 
tution, years  ago.  But  then  it  was  in  the  height 
of  its  power  and  zenith  of  its  glory.  During  the 
legislative  session  of  1842,  he  took  the  responsibi- 
lity of  submitting  a  resolution  requesting  the  ju- 
diciary committee  to  enquire  into  the  expediency 
of  so  amending  the  constitution  as  to  dispense 
with  this  court.  But  his  proposition  was  rejected 
by  the  Assembly  without  ceremony,  and  sneer- 
ingly  hooted  out  of  the  house  by  members  of  the 
legal  profession.  There  was  an  appeal  taken — 
only  one  appeal — and  that  was  from  the  legisla- 
ture and  lawyers  to  the  people.  The  result  was 
known  to  every  member  of  this  State — the  peo- 
ple, in  his  judgment,  had  decided  against  that  and 
other  similar  abuses;  and  in  conformity  with  that 
will,  from  which  there  was  no  appeal,  he  found 
the  majority  of  the  judiciary  committee  reporting 
in  favor  of  its  condemnation,  and  many  of  the  most 
able  members  of  the  legal  profession  sustaining 


man  gave  him  a  cause  in  Chancery.  This  simple 
hearted  young  man  went  honestly  to  work  and 
settled  the  matter  in  a  few  weeks,  and  called  on 
the  experienced  father  for  more  business.  "  Fath- 
er, said  he,  can  you  give  me  another  suit  to  try  ?" 
The  old  gentleman,  with  great  surprise,  answer- 
ed, "  I  do  not  know,  my  son,  what  have  you  done 
with  the  other  ?"  His  reply  was,  "  I  settled  that 
some  time  ago."  Oh,  my  son,  said  the  astonished 
Lawyer,  my  grandfather  made  a  fortune  out  of  that 
cause, — my  father  increased  it— I  have  added  still 
more  to  it,  and  I  intended  to  leave  it  as  a  le- 
acy  for  you.  You  have  not  finished  your  legal 
education,  you  are  not  a  proficient  lawyer,  and  I 
cannot  give  you  any  more  Chancery  business." — 
He  knew  that  this  might  be  considered  by  some 
as  extravagant,  but  it  was  a  difficult  matter  to  give 
an  adequate  idea  of  the  folly  and  iniquity  of  this 
system.  Why,  it  was  but  yesterday  that  the  gen- 
tleman from  Oneida,  (Mr.  KIB.KLAND)  informed 
us  of  a  cause  of  which  he  had  charge  that  required 
7000  folios  to  contain  the  evidence,and  the  charges 
of  the  examination  amounted  to  $3000.  Three 
thousand  dollars,  and  all  the  poor  woman  finally 
recovered  was  $1000.  Other  cases  without  num- 
ber could  be  cited,  but  it  was  not  necessary.  He 
had  listened  attentively  to  the  speeches  of  the 
friends  and  opponents  of  this  Court,  and  he  had 
not  heard  a  single  argument,  or  even  sentiment, 
to  recommend  it  to  his  favor.  It  had  not  been 
shown  that  it  possessed  one  redeeming  quality, 


and    the    only    defence  now    left   was 
should    be     respected     for     its     age. 


that    it 
It    was 


the  same  side  of  this  question, 
how  human  ingenuity  could 
pun  lo  defeat  justice  than 


He  di  1  not  know 
devise   a.    better 
our    present    ju- 


diciarv  system.  It  was  generally  admitted  that 
if  you  get  a  suit  in  chancery  rT7s~a~ciiance  wheih. 
er  it  will  ever  he  got  out  "There  were  other  ob- 
jections to  Uus  courr.  It  was  enormously  expen- 
aivb — Jhejymense  attending  suns  in  chancery  were 
beyond  estimation.  He  could  not  better  illustrate 
the  expensiveness  and  delay  than  by^an  anec- 
dote oi  a  triend,  told  to  him  onboard  a  terry-boat. 
It  seems  that  a  certaia  able  lawyer  had  united 
his  daughter  in  matrimony  to  a  young  gentleman 
who  w,.-.  .'.Rented  in  the  law  and  qualified  for  his 
profession,  except  in  one  essential  point  which 
the  sequel  would  show.  Havin<r  comnleted  his 


Having  completed  his 


studies  and  entered  upon  the  duties  of  a  husband, 
he  asked  his  father  for  a  job.     The  old  gentle- 


scarcely  necessary  for  him  to  remind  the  Con- 
vention of  the  vast  amount  of  private  proper- 
ty or  money  now  under  the  control  of  the  chan- 
cellor and  his  subordinates.  Three  millions  had 
been  acknowledged  by  that  officer  besides  other 
large  amounts  in  a  trust  company — for  safekeep- 
ing— not  directly  under  his  control.  One  of  the 
friends  of  this  court  had  admitted  to  him  that  he 
had  no  doubt  but  that  there  was  at  least  Jive  (5) 
|  millions  of  property  distributed  about  in  the  same 
manner.  This  secret  fund  had  become  so  abun- 
dant that  a  large  sum  was  appropriated  to  embel- 
lish the  chancellor's  library.  Several  efforts  had 
been  made  by  the  legislature  to  procure  light  on 
this  unseen  part  of  this  establishment,  but  they 
were  always  defeated  by  the  emissaries  of  this 
dangerous  court.  The  rattling  amongst  the  dry 
bones  the  other  day  occasioned  by  offering  a  sim- 
ple resolution  of  enquiry  would  long  be  remem- 
bered by  those  then  present.  Why  so  much  ef- 
fort to  keep  the  affairs  of  this  court  veiled  in 
darkness  if  all  was  right  ?  Why  fear  the  light 
unless  something  is  wrong  ?  The  people  had  be- 
come justly  alarmed,  and  nothing  short  of  a  tho- 
rough exposition  of  all  its  transactions  would  sa- 
tisfy public  expectation.  Much  had~b££jfl  said 
against  "the  practicability  of  uniting  law  and 
equity  jurisdiction  in  the. .saiofiLCQurt.  The  util- 
ity of  this  plan  had  been  demonstrated  by  gentle- 
men far  more  capable  to  investigate  this  branch 
of  the  subject  than  he  could  claim  to  be.  No 
good  could  result  from  keeping  up  these  two  dis- 
tinct fnrTrre-*-<ui  f  HP  ^pntrnry.,  in\mh-TTTJnry  and  in- 
convenience had  been  occasioned  by  this -prac- 
tice. The  proposition  to  blead  the  two  systems 
into  one  was  not  an  untried  experiment.  He 
knew  of  no  civilized  country  where,  these  sep- 

51 


610 


arate  forms  of  practice  prevailed,  except  in 
Great  Britain  and  in  a  portion  of  our  American 
States,  in  which  it  had  been  transplanted  from 
England.  And  it  would  seem  (hat  it  was  not 
congenial  either  to  our  climate  or  soil,  as  the  fruit 
produced  here  was  even  worse  than  th*at  which 
grew  there.  Besides  liberty  and  despotism  never 
could  flourish  together,  and  he  was  glad  to  say 
that  the  latter  was  yielding  to  the  genial  fays  ot 
the  former.  He  could  not  refrain  in  this  connec- 
tion to  Pedeem  his  promise  to  his  friend  from 
Chautauque  (iVJr.  MARVIN)  by  showing  the  incon- 
sistency of  his  position.  He  had  proved  himself 
to  be  one  of  the  most  able  and  decided  friends  of 
the  distinct  organization  of  this  court  and  of  sepa- 
rate forms  of  proceeding  :  yet  the  gentleman  was 
compelled  to  make  admissions  which  were  any 
thing  but  favorable  to  this  side  of  the  question. 
He  (Mr.  M.)  had  admitted  that  it  was  a  tedious 
and  expensive  court,  and  that  some  time  since  he 
drew  up  a  form  which  he  believed  to  be  correct- 
that  it  was  very  long  and  a  friend  of  his  not  having 
any,  had  rode  20  miles  to  procure  a  copy.  Finding 
that  it  was  inaccurate,  he  travelled  all  the  way  lo 
Albany  to  obtain  a  new  printed  form — being  very- 
much  liighieued,as  he  knew  the  consequence  of  his 
blunder.  He  proceeded  home  with  his  new  print- 
ed  forms,  but  to  his  astonishment,  when  he  was 
about  to  commence  his  pleadings  before  the  imma- 
culate Chancellor,  his  highness  informed  him  that 
there  was  a  slight  mistake  in  his  form,  and  that 
he  must  dismiss  his  case,  first  taking  care  to  have 
him  foot  op  a  heavy  bill  of  costs.  He  (Mr  S.) 
had  no  comment  to  make  on  the  gentleman's  sin 
gnlar  position,  except  to  enquire  whether  it  was 
any  wonder  that  he  was  driven  to  the  alterna- 
tive of  calling  on  ihe  honored  name  of  Judge 
Story  to  eulogize  an  institution  condemned  by 
the  experience  of  every  inhabitant  of  this  State 
There  was  another  point  to  which  he  would  call 
the  attention  of  the  committee  before  leaving  this 
branch  of  the  subject,  which  he  trusted  would  be 
a  satisfactory  answer  to  all  that  had  or  could  be 
said  against  the  impracticability  of  blending  the 
two  forms  and  systems  into  one.  It  was  that  the 
court  of  last  resort  in  this  state,  although  not  the 
most  conveniently  organized,  exercised  jurisdic- 
tion both  in  law  and  equity.  He  begged  not  to 
be  understood  as  casting  any  reflection  on  gentle- 
men connected  with  the  judiciary — it  was  a  false 
system  against  which  he  was  contending,  and  not 
the  men  who  administered  it.  He  would  also  abol- 
ish the  Supreme  Court  as  at  present  organized. — 
He  would  not  enter  at  large  into  the  objections 
that  could  be  urged  against  it.  The  mode  of  ap- 
pointing the  judges,  the  life  tenure, — or  virtually 
so, — of  their  office,  and  the  delay  of  justice  were 
sufficient  reasons  against  its  continuation.  There 
are  now  on  the  calendar  between  ten  and  fifteen 
hundred  causes,  and  the  judge  had  been  heard  to 
say  that  no  new  case  could  be  reached  in  less  than 
ten  or  twelve  years,  so  it  is  evident  that  this  court 
does  not  afford  such  facilities  for  the  attainment 
of  justice  as  the  people  have  a  right  to  demand; — 
The  court  for  the  correction  of  errors  too,  must 
be  dispensed  with.  True,  it  was  not  obnox- 
ious to  the  same  objections  as  the  others,  but 
it  was  too  large  arid  unwieldy  for  a  court  of 
appeals,  i.nd  it  was  too  expensive,  the  average 
costs  of  causes  being  over  five  hundred  dollars. — 


Indeed  our  whole  system  of  jurisprudence  was 
more  costly  than  that  of  Great  Brit  iin.  Another 
reason  why  this  court  should  not  be  continued, 
was  that  it  exercised  two  of  the  highest  preroga- 
tives known  in  civilized  government— that  of 
making  and  administering  the  laws.  These  func- 
tions were  incompatible  with  eaeh  other,  and  too 
important  in  themselves  to  be  blended  together,. 
which  could  not  be  done  on  any  sound  principles 
of  government.  Having  accomplished  this,  the 
smaller  courts  would  go  by  the  board  as  a  matter 
of  course. 

Mr.  SHEPARD :  The  gentleman  from  Kings 
has  shown  his  hand  at  pulling  down,  will  he  be 
good  enough  to  inform  us  how  he  would  build  up  ? 

Mr  SWACKHAMERwasonce  cross-examinee! 
by  a  lawyer,  but  he  could  not  extort  anything 
from  him  but  the  truth.  He  would,  however  ex- 
cuse the  gentleman  for  interrupting,  and  give  him 
his  plan  in  due  time.  But  to  proceed.  He  would 
complete  the  demolition  of  this  antiquated  but 
dilapidating  structure,  by  driving  out  the  last  peg 
that  held  it  together.  The  offices  of  surrogate, su- 
preme court  commissioner,  masters  and  examiners 
in  chancery  should  he  known  no  more  forever.  The 
first  of  these  was  unnecessary  except  to  the  occu- 
pants, whose  fees  amounted  in  one  case  at  least, 
during  the  last  year,  to  between  8  and  $'9000.  The 
worst  feature  of  which  was,  that  this  enormous 
sum  was  principly  abstracted  from  the  remaining 
support  of  widows  and  orphans.  The  second 
class  done  very  well  for  taxing  lawyers'  costs,  as 
those  who  taxed  the  highest  were  sure  of  getting- 
the  most  business.  The  third  was  useless  altho' 
it  was  lucrative,  and  the  fourth  paid  well,  for  it 
had  been  proven  that  in  a  single  case  the  exami- 
nation of  witnesses  cost  $3000,  the  expense  of 
this  part  of  the  work  being  two-thirds  more  than 
the  amount  finally  recovered,  which  was  only 
$1000.  Indeed  all  these  officers  were  well  cal- 
culated for  the  promotion  of  political  objects,  and 
afforded  good  berths  for  partizan  leaders,  if  the 
courts  and  offices  he  had  named  be  abolished, 
the  remaining  little  establishments  would  soon 
give  way  to  a  better  system,  especially  the  court 
of  common  pleas,  which  like  the  Dutchman's 
horse  had  "  cost  more  than  it  come  to,"  as  far  as 
we  could  learn  from  the  returns  received.  Hav- 
ing finished  this  branch  of  the  subject — he 
would  proceed  to  answer  the  enquiry  of  the  gen- 
tleman from  New  York  (Mr.  SHEPARD.)  He 
would  premise  by  saying  that  it  was  asking  a 
great  deal  of  one  charged  with  being  ignorant 
of  the  principles  of  law,  as  he  was  not  familiarly 
acquainted  with  writings  of  Black  stone  and  other 
similar  authors,  to  lay  down  a  judicial  system 
which  had  baffled  the  efforts  of  the  learned  and 
experienced  judiciary  committee,  eleven  of  whom 
were  eminent  members  of  the  legal  profession. — 
In  framing  a  judiciary  system,  he  would  not  adopt 
the  iron  code  of  Lycurgus,  nor  the  elastic  system 
of  common  law,  which  was  like  the  wind,  "  that 
bloweth  where  it  listeth,  and  ye  hear  the  sound 
thereof,  but  know  not  from  wrhence  it  cometh  nor 
whither  it  goeth."  It  was  the  unwritten  law, 
consisting  principally  in  the  decisions  of  all  the 
courts  that  have  gone  before  us,  from  Alfred  down 
to  the  present  time.  It  in  effect  assumes  for  ju- 
dicial tribunals  the  prerogative  of  making,  ad- 
ministering and  enforcing  law ;  and  in  that  view 


611 


was  inconsistent  with  republican  institutions, 
which  were  or  ought  to  be  based  on  written  con- 
stitutions. The  civil  law  had  its  origin  in  the 
-litest  era  of  Roman  liberty,  anterior  to  the 
Theodosian  code  of  A.  D.  •l-'is,  or  that  of  the 

.TH  Emperors,  as  compiled  by  Trebonia. — 
But  they  were  now  about  making  a  written  re- 
publican constitution,  and  laws  would  be  enacted 
in  conformity  therewith.  It  was  therefore  their 
duty  to  reject  all  that  experience  had  proven  to 
he  injurious  to  society  and  wrong  in  principle,  and 

•t  that  which  was  just  in  principle  and  would 
prove  conducive  to  the  best  interests  of  the  human 
I'.unily.  He  considered  that  his  amendment  invol- 

i'he  first  great  principle  of  a  correct  judicia- 

-!<>m.     It  provides,  1st.  *'  that  the  judicial 

power  of  the  state  shall  be  vested  in  one  su- 

'ite  court  and  suck  subordinate  courts  as  are 

authorized  by  thi-s  Constitution."     If  this  should 

•iopted,  or  the  3d  section  of  the  report  of  the 
judiciary  committee,  proposed  to  be  stricken  out, 

ided  so  as  to  conform  to  it,  then  he  would  fol- 
low it  up  with  an  additional  section  which  would 
accomplish  the  object  he  had  in  view.  There  was 
this  distinctive  difference  between  his  section  and 
th-.it  of  the  committee's.  They  leave  it  optional 
with  the  legislature  to  create  as  many  little  mush- 
room courts  as  it  may  deem  expedient,  with  a  va- 
riety of  names,  diversity  of  jurisdiction  and  di- 
verse forms  of  proceeding.  It  was  not  necessary 
for  him  to  point  out  the  evils  of  such  a  system, 
its  baneful  influence  had  long  been  deplored 
throughout  the  state.  His  plan  provided  for  one 
harmonious  system,  known  by  the  same  name, 
with  one  plain,  intelligible  form  of  proceeding 
and  of  practice,  whose  jurisdiction  could  be 
understood  by  all — it  was  emphatically  an  Ame- 
rican system. 

.  2d.  Substitute  salaries  in  lieu  of  fees  for  ju- 
djfcial  officer* — if  charges  or  fees  are  necessary, 
send  them  to  the  public  treasury,  and  appropri- 
ate them  toward  defraying  the  expenses  of  your 
judiciary.  Do  this  and  you  take  from  judicial  of- 
•s  all  inducements  to  encourage  litigation.  The 
fee  or  perquisite  system  was  demoralising  and  cor- 
rupting in  all  its  bearings — it  had  brought  re- 
proach on  the  judiciary,  and  dishonor  on  its  offi- 
cers. *  Under  this  system  justice.might  be  bought 
and  sold.  Judges  are  but  men,  and  if  a  lawful 
fee  was  offered  to  allow  an  exception,  or  order  an 
appeal,  it  would  very  likely  be  received.  The 
ermine  should  be  untainted  by  any  such  mean  or 
grovelling  considerations  ;  its  functions  were  ele- 

{  and  noble,  and  should  be  kept  as  spotless 
as  the  sun. 

-'I.  Limit  the  time  within  which  decisions 
shall  be  had. — Delay  was  one  of  the  most  cer- 
tain means  for  defeating  the  ends  of  justice.  It 

the  common  receptacle  of  the  poor  man's 
last  farthing,  who  was  compelled  to  resort  to  the 
law  for  the  purpose  of  establishing  his  rights. 

4th.  Restrict  suiters  to  one  appeal. — He  ap- 
prehended it  would  be  difficult  to  prove  how 
some  half  dozen  appeals  had  any  other  effect  than 
to  enrich  the  lawyers  and  impoverish  the  liti- 
gants— to  confuse,  embarrass,  and  finally  defeat, 
the  object  desirable  to  be  attained. 

5th.  Place  the  legal  professionon  the  same 

platform  with  other  occupations.      Every  consi- 
deration ot  equality  and   enlightened  government 


demanded  this  reform.  It  was  a  remnant  of  the 
protective  system  that  ought  to  find  no  favor  here. 
People  at  this  day  were  as  capable  ot  judging  of 
the  qualifications  of  their  lawyers  as  of  any  other 
business  man.  The  committee,  in  his  opinion, 
had  made  a  great  mistake  in  supposing  that  this 
Convention  would  constitutionally  prohibit  men 
from  presenting  their  own  case  betore  a  court  of 
justice,  merely  for  the  purpose  of  building  up  the 
interest  of  lawyers.  The  men  who  bore  the 
parchment  were  not  always  the  most  capable  to 
present  the  plain  truth  to  an  upright  court.  The 
seventh  section  of  the  report  ot  the  judiciary  com- 
mittee must  be  stricken  out. 
jSth,  Reorganize  what  are  now  known  as  jus- 
tices' courts:  elevate  their  character:  extend  their 
jurisdiction,  and  construct  them  in  such  a  man- 
ner that  may  constitute  courts  of  conciliation, 
He  would  engraft  on  the  organic  laws  ot  this  siate, 
the  principle  of  conciliation  and  reconciliation. 
He  was  not  tenacious  about  whether  it  should  be 
done  in  the  way  he  had  suggested,  or  in  any  oth- 
er manner  that  should  be  deemed  most  advisable. 
It  might  not  be  out  of  place  for  him  here  to  re- 
mark, that  he  never  had  a  law  suit.  He  had 
once  a  misunderstanding  about  a  business  matter, 
and  it  was  mutually  referred  to  the  arbitration  of 
two  gentlemen,  who  satisfactorily  arranged  the 
difficulty  without  the  aid  of  lawyers  or  the  law. 
He  was  aware  that  this  proposition  had  been  cha- 
racterized by  two  able  legal  gentlemen  (Messrs. 
JORDAN  and  BROWN)  as  foolish,  impracticable, 
and  out  of  the  question  ;  and  that  it  would  do  very 
well  in  ignorant  and  barbarous  nations,  but  it  was 
unfit  for  this  enlightened  community.  He  could 
not  answer  such  forcible  and  logical  arguments, 
but  he  had  always  thought  that  peace  making 
was  of  divine  origin,  and  was  an  evidence  of  the 
highest  state  of  civilization,  while  mischief- 
making  was  peculiarly  characteristic  of  the  pro- 
fession of  the  law.  As  this  proposition  had  ori- 
ginated with  him,  he  would  attempt  to  show  the 
propriety  of  its  adoption.  And  he  wished  to 
thank  the  gentleman  from  Seneca  (Mr.  BASCOM) 
and  the  gentleman  from  New-York,  (Mr.  STE- 
PHENS,) also  the  gentlemen  from  Oneida  and  On- 
tario (Messrs.  KIRKLAND  and  WORDEN.)  for  the 
favorable  consideration  which  they  had  given  it 
They  had  the  liberality  to  look  beyond  their  pro- 
fession and  sustain  truth,  though  it  originated  in 
humble  obscurity.  It  appeared  from  the  Edin- 
burgh Review  that  an  institution  of  this  kind  was 
established  in  Denmark — in  all  other  respects  an 
arbitrary  government — in  the  year  1795.  There 
was  an  effort  made  to  organize  a  similar  court  in 
the  same  country  some  forty  years  previous,  but  it 
did  not  succeed  for  reasons  not  now  necessary  to 
mention.  Time  would  not  now  permit  him  to 
enter  into  a  detailed  statement  of  the  organiza- 
tion and  arrangement  of  the  Conciliation  Court 
of  1795,  he  would  merely  give  the  results.  "Du- 
ring the  three  years  proceeding  this  institution 
there  came  before  the  courts  of  law  25,521  causes; 
and  for  the  three  years  following  9,653,  making 
the  astonishing  difference  of  16,863  law  suits."  It 
seems  the  idea  of  this  court  was  originally  taken 
from  the  Dutch,among  whom  it  produced  the  most 
happy  effects.  It  also  existed  in  other  European 
countries,  where  it  worked  well.  He  begged  to 
call  the  attention  of  the  committee  to  the  testi- 


612 


mony  of  Mr.  Weed  of  the  Albany  Evening  Jour- 
nal, respecting  this  admirable  institution.  He 
concludes  an  article  on  this  subject  in  the  follow- 
ing beautiful  manner :  "  In  the  five  months  we 
passed  in  the  dominions  of  the  King  of  Denmark, 
we  had  opportunities  of  observing  the  practical 
workings  of  *  CONCILIATION  COURTS.'  Influen- 
ces more  benign  can  scarcely  be  imagined.  We 
have  felt,  ever  since  the  subject  of  Constitutional 
Reform  was  broached,  a  strong  desire  to  urge  the 
consideration  of  ConciliationCourts  upon  the  Con- 
vention. It  is  a  sublime  feature  in  human  Govern- 
ment. It  divests  litigation  of  its  worst  charac- 
teristics. It  calms  and  tranquilizes  the  passions 
of  men.  It  prevents  most  of  the  description  of 
law  suits  in  which  neither  party  is  benefitted. — 
And  it  arrests  controversies  which  arise  out  of 
misapprehensions.  Indeed  communities  protec- 
ted by  such  enlightened  Tribunals  are  exempted 
from  most  of  the  evils  of  excessive,  rapacious  and 
destructive  litigation.'*  A  committee  in  the  Con- 
vention of  New  Jersey  had  made  a  report  in  lan- 
guage equally  commendatory  of  the  principle, 
and  in  favor  of  engrafting  it  in  the  constitution  of 
that  State.  He  had  heard  it  said  that  parties 
could  resort  to  arbitration  without  this  constitu- 
tional provision.  He  did  not  deny  this,  but  he  still 
wished  the  principle  recognized  in  the  Constitu. 
tion  of  this  State.  It  was  desirable  that  an  insti- 
tution of  this  kind  should  be  established,  and  its 
doors  open  to  the  whole  people — it  should  be 
known  and  admired  by  all.  It  was  not  only  the 
doty  of  government  to  interdict  and  punish  wrong, 
but  to  encourage  right.  The  supreme  law  giver 
had  not  thought  it  unworthy  his  high  office  to 
hold  out  inducements  to  invite  men  to  upright 
and  neighborly  conduct  towards  each  other.  The 
highest  honor  is  tendered  to  those  who  soothe  the 
passions  of  men — "  Blessed  are  the  peace-makers, 
for  they  shall  be  called  the  children  of  God."— 
The  principle  was  founded  in  the  Christian  spirit 
of  kindness  and  peace.  Friendly  advice  and  kind 
words  would  very  often  accomplish  what  the  law 
could  not  obtain — it  would  not  only  secure  justice, 
but  calm  the  anger  of  man.  It  was  like  the  morning 
dew,  the  summer  shower,  it  cooled  and  tranquiliz- 
ed  the  burning  passion,  leaving  freshness  and  beau- 
iy  in  place  of  darkness  and  waste.  He  now  came  to 
the  seventh  and  last  proposition  which  was 

To  Elect  Judges  by  the  People  and  deprive 
them  of  patronage. — He  fell  that  it  was  due  to 
the  Convention,  tne  people  and  to  himself,  to  say 
that  he  had  not  assumed  this  very  responsible  po- 
sition without  much  reflection  and  calm  delibera 
tion.  There  was  good  reasons  for  a  difference  of 
opinion  amongst  the  most  enlightened  minds,  on 
this  subject.  It  was  comparatively  an  experi- 
ment. Many  of  the  most  liberal  and  able  states 
men  doubted  the  policy  of  the  change.  It  was 
his  duty,  in  view  of  these  considerations,  to  place 
the  question  on  high  ground.  He  presumed  the 
assertion  that  the  governing  power  resided  in  the 
people  would  not  be  disputed  here.  That  the 
government  should  be  vested  in  three  distinct 
branches  was  also  generally  conceded.  These 
three  parts  constituted  the  whole  government,  and 
could  with  much  propriety,  in  one  point  of  view 
be  considered  three  in  one — they  are  usually  term 
ed,  Legislative,  Executive  and  Judicial.  The 
Legislative  was  the.  first  and  highest  function  o" 


remaining  department  of  g( 
plete  the  symmetrical  and  h 


overn- 
armo- 


civilized  government.  The*  Executive  was  the  sec- 
ond, arid  the  Judicial  the  third.  He  who  at  this  day 
would  deny  the  right  of  the  people  tn  elect  the  two^ 
first  branches  of  their  government  would  be  uni- 
versally denounced  as  an  enemy  to  the  Republic 
and  to  free  institutions;  and  they  who  doubt 
their  capability  to  elect  the  third  could  scarcely 
be  considered  as  the  friends  of  either.  He  had 
been  told  that  there  was  no  precedent  for  this  pro- 
position, and  no  examples  in  favor  of  it.  If  there 
was  none  in  favor,  there  was  certainly  not  any 
against.  But  he  contended  that  the  precedent  was 
established  in  the  election  of  other  high  officers  of 
state,  and  in  the  election  of  the  members  of  the 
court  of  last  resort ;  and  that  the  adoption  of  this 
principle  in  the 
ment  would  complete  the 

nions  system  to  which  he  had  first  alluded. — 
Indeed  the  question  involved  the  first  princi- 
ples of  self-government.  To  dispute  the  right, 
the  safety  or  the  policy  of  the  measure,  was 
a  rejection  of  the  corner  stone  of  popular 
liberty — the  basis  of  universal  freedom.  It 
was  an  insult  to  the  intelligence  of  the  peo- 
IP  and  a  libel  on  their  republican  institutions  — 
When  it  was  originally  proposed  to  elect  justices 
of  the  peace  many  men  of  experience  looked  up- 
on it  with  alarm,  yet  no  mischief  had  resulted 
from  it  to  the  body  politic.  True  this  court  was- 
not  in  every  respect  what  it  ought  to  be,  but  this 
was  owing  to  the  organization  and  the  fee  sys- 
tem, and  not  to  the  mode  of  selecting  the  justices. 
Whatever  may  be  the  opinion  of  gentleman  res- 
pecting the  present  organization  of  these  courts, 
he  apprehended  that  no  one  would  venture  to 
take  the  privilege  of  the  election  of  justices  from 
the  people.  He  was  not  pledged  to  the  election 
of  judges,  but  he  believed  it  to  be  the  desire  of 
the  county  he  had  the  honor  in  part  to  represent. 
And  here  he  must  be  permitted  to  say,  that  noth- 
ing but  a  high  consideration  of  duty  could  induce 
him  to  place  himself  in  an  antagonistic  position, 
to  his  distinguished  colleague  (Mr.  MURPHY),  for 
he  regretted  to  say  that  his  friend  differed  with 
him  on  this  important  subject.  The  election  of 
judges  had  been  endorsed  at  an  early  stage  of  the 
discussion  for  a  State  Convention,  by  the  people 
of  his  adopted  village.  If  he  was  not  mistaken 
this  fundamental  principle  was  first  publicly 
proclaimed  there.  It  was  not  the  first  time  that 
the  fire  of  truth  had  been  enkindled  in  an  obscure 
quarter,  and  spread  until  its  purifying  flames  had 
consumed  error,  and  left  society  in  the  full 
possession  of  liberal  principles.  The  coun- 
ty, following  in  the  footsteps  of  Williams- 
burgh,  did,  through  the  nominating  convention 
pass  the  following  among  other  resolutions:— 
"Resolved,  That  we  are  in  favor  of  electing  all 
judicial  and  executive  officers  by  the  people  ;  be- 
lieving that  if  we  can  be  trusted  to  elect  our  Pre- 
sident, no  °x>od  reason  can  exist  for  restraining  us 
from  electing  all  inferior  officers."  The  resolu- 
tions adopted  by  the  convention  were  directed  to 
be  communicated  to  the  nominees  by  the  Secre- 
taries, and  an  answer  required.  In  his  reply,  he 
did  not  accept  the  nomination,  nor  did  he  decline 
it,  for  his  purpose  was  not  to  be  a  candidate,  un- 
less his  nomination  should  be  unanimously  con- 
firmed by  the  county  meeting,  called  to  consider 
the  report  of  the  nominating  convention.  Neither 


613 


did  he  pledge  himself  to  any  other  course  than 
such  as  should  be  dictated  by  an  %  enlightened 
view  and  public  policy.  The  tenor  of  his  reply 
was  however  in  conformity  with  the  sentiments 
sustained  by  the  convention,  as  they  met  his  un- 
qualified approbation.  But  it  would  be  said  that 
the  convention  might  have  been  "packed,"  and 
that  its  conclusions  were  not  the  views  of  the 
county.  His  answer  to  this  objection  was  that  at 
the  county  meeting  referred  to,  the  people  assem- 
bled to  the  number  of  several  thousand,  and 
unanimously  confirmed  the  nomination  of  the 
convention  and  ratified  all  their  resolutions.  The 
next  ordeal  through  which  they  passed  was  the 
election,  when  the  whole  people  had  an  opportu- 
nity of  freely  expressing  their  unbiassed  will. 
Then  again  the  nomination  of  his  associates  and 
himself  was  confirmed  by  an  aggregate  majority 
of  about  eight  hundred,  that  too  when  Brooklyn 
alone  had  given  nearly  1200  majority  on  the  other 
side  but  a  week  previous.  He  believed  that  the 
judgment  of  his  village  and  county  was  in  con- 
formity with  that  of  the  State.  He  submitted 
whether,after  having  been  elected  under  such  cir- 
cumstances, he  was  not  in  honor  bound  to  sustain 
the  view  he  did  or  else  resign.  But  he  felt  no 
embarrassment  in  his  position,  it  was  as  clear  as 
the  light  of  truth.  It  had  been  objected  that  the 
election  of  judicial  officers  would  be  the  means  of 
selecting  political  judges.  He  had  no  such  fears, 
for  he  had  but  little  doubt  that  if  they  were  left 
without  patronage,  they  would  be  elected  for  their 
capability  and  honesty,  and  not  for  their  political 
notions.  The  people  were  not  in  the  habit  of 
trifling  with  their  best  interests.  But  admitting, 
for  the  purposes  of  argument,  that  this  would 
prove  true,  are  you  any  better  off  with  the  cen- 
tral appointing  power  ?  Were  not  the  governor 
and  senators  partizans  ?  And  have  you  had 
any  other  than  political  appointments  to  judicial 
office  during  the  last  25  years.  The  ermine  had 
been  tarnished,  and  our  judiciary  system  brought 
in  reproach  within  eight  or  ten  years  past,  by  the 
appointment  of  a  number  of  stupid  and  incapable 
men  as  judges,  who  were  common  political  braw. 
lers.  Indeed,  a  rejection  by  the  popular  will  of 
failing  politicians,  had  almost  become  a  pass- 
port to  the  appointment  to  office  by  the  central 
power.  He  was  proud  to  know  that  they  had  as 
able  judges  in  this  State  as  there  was  in  the  U.  S. 
But  no  one  could  deny  that  a  large  number  were 
unworthy  the  dignified  post  they  occupied,  and 
could  never  have  reached  it  through  the  people. 
He  supposed  it  was  generally  known  how  appoint- 
ments were  made  now-a-days  ;  if  not,  he  would 
give  an  example  or  two.  It  was  customary  fur  a 
political  committee  to  meet  together  in  some  se- 
cluded place,  when  there  was  an  appointment  to 

be  made,  and  quietly  resolve  that  Mr.  S was 

just  the  man  tor  the  office.  The  matter  was  per- 
fectly understood  by  the  "  knowing  few."  It  a 
«'  green  'un"  of  the  committee  happens  to  make  an 

enquiry  respecting  Mr.  S ,  Mr.  S at  once 

becomes  "a  most  excellent  man— first  raft — just 
the  man  for  the  place,"  but  then  it  is  doubtful 
whether  he  will  survive.  The  next  step  was  to 
appoint  a  committee  to  wait  on  him  and  insist  on 
his  acceptance  of  the  office.  He  finally  yields  to 
the  solicitations  of  his  fellow  citizens  at  a  heavy 
personal  sacrifice.  The  resolution  is  signed  by 


the  officers  of  the  committee,  transmitted  to  Al- 
bany, and  as  it  is  against  the  rule  for  the  Gover- 
nor to  look  beyond  the  official  proceedings  of  the 
committee — the  appointment  is  made,  and  the 
plain  Mr.  S.  who  no  one  knew,  or  if  known,  it 
was  only  as  a  small  politician,  at  once  becomes 
the  learned  Judge  Squash.  You  may  subse- 
quently hear  of  the  judge  in  this  way.  "The 
cause  of  Ignorance  vs.  Knowledge,  came  up  for 
a  hearing  to-day,  in  the  court  of  Wisdom.  The 
learned  judge  Squash  delivered  an  able  opinion! 
Verdict  for  the  plaintiff."  Perhaps  the  decision 
was  in  violation  of  both  the  constitution  and  laws, 
but  no  matter,  it  becomes  a  precedent,  and  was 
legally  reported — it  now  becomes  a  part  of  the 
common  law.  There  were  other  modes  of  pro- 
curing appointments,  one  of  which  was  to  secure 
the  nomination  of  Senators  and  Assemblymen, 
who  woulfl  "  do  the  right  thing"  when  they 
got  to  Albany.  It  was  some  times  convenient 
to  go  to  State  Conventions  to  nominate  a  Gov 
ernor,  provided  an  appointment  was  desira- 
ble. He  knew  an  instance  where  a  person  suc- 
ceeded in  procuring  an  office  worth  nearly  jpQOOO 
per  year  by  getting  on  a  nominating  committee 
but  once.  Abolish  the  appointing  power,  and  you 
will  have  no  more  scrambling  to  get  on  nominat- 
ing committees.  You  will  elect  good  men  to  of- 
fice, and  politicians  by  tra  ie  will  not  exhaust 
their  patriotism  in  servingon  com.mttees  without 
pay.  There  were- other  objections  to  the  present 
mode  of  appointment  to  which  it  was  painful  to 
allude.  He  would  not  now  ask  why  the  council 
of  appointment  was  abolished  in  solemn  silence. 
Neither  was  it  necessary  to  inform  the  committee 
that  men  had  been  appointed  to  high  judicial  offi- 
ces while  they  were  responsible  on  the  paper  of 
the  appointing  power  to  the  amount  of  thousands 
of  dollars,  and  which  the  endorser  had  finally  to 
pay.  He  would  not  show  how  easy  it  was  for  an 
ambitious  executive  to  perpetuate  his  power,  and 
promote  his  designs  through  his  thousand  offices, 
scattered  throughout  the  State.  Judges  were 
not  only  appointed  on  party  grounds,  but  they 
were- also  removed  to  subserve  party  purposes. — 
Able  and  pure  judicial  officers  had  been  re- 
moved by  an  ambitious  executive  to  promote 
unprincipled  political  designs.  This  system 
of  appointment  was  impolitic  and  dangerous. — 
It  was  a  canker-worm,  eating  out  the  vitals  of  our 
institutions.  It  must  be  abolished.  He  was  sen- 
sible that  what  he  had  said  would  displease  some, 
and  could  not  find  a  response  from  all.  He  had 
spoken  frankly  his  own  opinion  of  what  he  be- 
lieved to  be  the  defects  in  our  present  system  of 
jurisprudence,  and  had  fearlessly  proposed  reme- 
dies which  he  sincerely  hoped  would  prove  ef- 
fectual. He  was  glad  to  see  that  the  very  able 
committee  on  the  judiciary  had  submitted  the 
most  important  part  of  the  plan  he  had  suggested 
by  resolution,  shortly  after  their  organization, 
and  he  was  happy  in  believing  that  the  Conven- 
tion would  go  still  farther  than  the  committee, 
and  engraft  on  the  Constitution  other  proposi- 
tions which  he  had  submitted.  He  considered 
the  question  then  under  discussion  one  of  the 
most  momentous  that  would  come  before  the 
Convention.  He  had  not  rushed  into  it  from 
the  impulse  of  passion.  What  he  had  said  was 
based  on  calm  reflection,  and  though  imperfect, 


614 


was  the  result  of  careful  investigation,  and  he 
sincerely  hoped  would  conduce  to  the  es- 
tablishment of  correct  principles.  What  ever  was 
then  done  of  good  or  of  evil  would  not  be 
confined  within  the  borders  of  this  State.  The 
happiness  of  unborn  millions  might,  and  perhaps 
did  depend  upon  the  result  of  their  deliberations. 
Great  was  the  responsibility  to  all,  and  fearful 
the  future  to  them,  if  any,  who  failed  to  discharge 
their  whole  duty  at  the  present  golden  moment. — 
It  was  in  view  of  these  solemn  considerations  that 
he  had  taken  the  position  he  now  occupied — ii  he 
was  sustained  by  the  enlightened  opinion  of  a  free 
people  he  would  feel  gratetul,  if  otherwise,  he 
should  not  complain,  leaving  as  he  would,  this 
capitol,  conscious  of  having  acted  according  to 
the  dictates  of  his  best  judgment,  and  with  the 
single  purpose  of  humbly  contributing  to  the  pros- 
perity of  all.  » 

Mr.  MURPHY  said  that  his  colleague,  who 
had  first  addressed  the  committee,  had  made  some 
allusions  of  a  local  character,  to  which  he  (Mr. 
M.)  did  not  intend  to  reply  at  this  time,  although 
he  might  do  so  on  some  other  occasion.  Yet  he 
wished  to  ask  his  colleague,  to  whose  remarks  he 
had  listened  to  with  pleasure,  whether  in  his 
plan  to  elect  judges  by  the  people,  he  proposed  to 
elect  them  for  a  long  or  short  term ;  and  if  for  a 
short  term,  what  period  ? 

Mr.  SWACKHAMER  said  that  he  had  not  fix- 
ed in  his  mind  any  definite  term,  although  he  was 
disposed  to  give  them  a  reasonably  long  term. — 

Mr.  MURPHY— Perhaps  then  there  will  not 
be  so  many  points  of  difference  between  us. 

And  then,  on  motion  of  Mr.  BASCOM,  the 
committee  rose  and  reported  progress. 

And  then  the  Convention  adjourned. 

THURSDAY,  (61**  day,)  Aug.  13. 
PLAN  FOR  A  JUDIClARif. 

Mr.  St.  JOHN  presented  a  plan  for  a  judiciary 
system.  He  moved  that  it  be  printed.  Agreed  to. 
ARTICLE . 

^  1.  All  judicial  power  shall  be  vested  in  a  Supreme 
Court,  and  in  such  subordinate  courts  as  are  hereinafter 
established. 

§  2.  The  Supreme  Court  shall  consist  in  a  Chief  Justice 
and  sixteen  associate  Justices  to  be  denominated  Justices 
of  the  Supreme  Court. 

§  3.  The  Chief  Justice  shall  preside  over  the  judiciary 
department,  and  it  sfliall  be  his  duty  to  prescribe  forms  and 
rules  of  practice  in  the  Supreme  Court,  and  in  all  subordi- 
nate courts. 

5}  4.  Such  forms  and  rules  shall  be  simple  and  plain,  with 
apt  words  to  express  the  subject  matter,  and  nothing  more. 

§5.  The  Chief  Justice  shall  be  elected  by  the  people  of 
this  State,  and  he  shall  hold  his  office  for  eight  years. 

§  6.  The  State  shall  be  divided  into  eight  judicial  districts 
to  be  numbered  from  one  to  eight  inclusive;  they  shall  be 
composed  ot  contiguous  territory,  and  shall  contain  as 
nearly  as  may  be,  without  dividing  a  county,  an  equal 
number  of  inhabitants.  There  shall  be  elected  in  e^ch  of 
the  said  districts,  two  Justices  of  the  Supreme  Court,  who 
shall  be  divided  by  the  board  ot  State  canvassers,  into 
eight  classes,  of  two  in  each  class;  arid  each  of  the  said 
justices  shall  hold  his  office  for  a  term  of  years,  corres- 
ponding with  the  number  of  the  class  to  which  he  belongs; 
and  tnere  shall  be  elected  annually,  alter  the  first  election 
of  such  justices,  two  Justices  of  the  Supreme  Court,  who 
shall  hold  their  office  for  eight  years.  The  board  of  State 
canvassers  shall  so  classify  the  said  justices,  that  the  first 
district  shall  contain  one  of  the  first  class  and  one  of  the 
fifth;  the  L-econd  district  shall  Contain  one  of  the  second 
class  and  one  of  the  sixth;  the  third  district  shall  contain 
one  of  the  third  class  and  one  of  the  seventh;  the  fourth 
district  shall  contain  one  oi  the  fourth  class  and  one  of  the 
eighth;  the  fifth  district  shall  contain  one  of  the  first  class 


and  one  of  the  fifth;  the  sixfb  district  shall  contain  one  of 
the  second  class  and  one  oi  the  sixth;  the  seventh  district 
shall  contain  one  of  the  third  class  and  one  of  the  seventh; 
and  the  eighth  district  shall  contain  one  of  the  fourth  class 
and  one  oi  the  eighth. 

§  7.  The  Court  for  the  Correction  of  Errors  shall  be  com- 
posed of  ihe  Chief  Justice  and  of  the  associate  Justices  of 
the  Supreme  Court,  comprising  the  second,  third  and  fourth 
classes,  and  the  concurrence  of  at  least  four  of  their  num- 
ber shall  be  necessary  to  a  decision;  which  court  shall,  in, 
every  year,  hold  at  least  one  of  its  terms  in  each  of  the  ju- 
dicial districts  in  this  State.  The  Legislature  shall  provide 
for  filling  all  vacancies  which  may  occur  in  the  office  of 
Chief  Justice,  or  in  either  of  the  Justices  of  the  Supreme 
Court,  until  the  next  annual  election  for  such  Justices;  but 
every  person  elected  to  fill  any  such  vacancy,  shall  serve 
for  the  unexpired  term  of  his  immediate  predecessor,  and 
no  longer.  No  member  of  the  Court  for  the  Correction  of 
Errors  shall  have  a  voi  e  in  the  affirmance  or  reversal  of  a 
cause  brought  from  any  court  wherein  he  shall  have  presi- 
ded at  the  trial  thereof. 

^  8.  There  shall  be  elected  in  each  of  the  counties  of  this 
State,  one  county  iudge  and  one  assistan*  judge,  who  shall 
hold  their  offices  for  five  years. 

§9.  The  county  courts  shall  consist  of  one  county  judge 
and  one  assistant  judge,  together  with  one  of  the  justices  of 
the  Supreme  Court,  any  one  of  whom  may  hold  the  court; 
but  the  legislature  shall  prescribe  the  cases  in  which  the 
presence  of  a  Justice  of  the  Supreme  Court  shall  or  may  be 
required. 

§  10.  The  county  court  shall  have  original  and  exclu- 
sive jurisdiction  'within  their  respective  counties,  in  all 
cases,  civil  and  criminal,  in  law  and  in  equity  (including 
the  powers  and  duties  of  surrogates) ;  except  where  the 
actual  balance  between  the  parties  shall  not  exceed  the 
sum  of  two  hundred  and  fifty  dollars. 

§  11.  There  shall  be  elected  in  each  of  the  towns  in  this 
State,  and  in  each  of  the  districts  or  wards  in  the  several 
cities,  not  less  than  two  nor  more  than  four  justices  of  the 
peace,  who  shall  hold  their  offices  for  four  years.  The 
number  of  justices  of  the  peace  to  be  elected  in  each  town, 
district  or  ward  shall  be  determined  by  the  electors  there- 
of, at  their  first  annual  town,  district  or  ward  meeting,  af- 
ter the  adoption  of  this  Constitution;  but  such  number 
may  be  altered  at  the  expiration  of  each  period  of  four 
years  thereafter,  and  at  no  other  time. 

§  12.  Courts  ot  justices  of  the  peace  shall  have  original 
jurisdiction  in  allcases  where  the  actual  balance  between 
the  parties  shall  not  exceed  the  sum  of  two  hundred  and 
fifty  dollars;  and  whenever  a  suit  shall  be  commenced  and 
tried  in  a  county  court  or  before  a  justice  of  the  Supreme 
Court,  and  the  plaintiff  shall  fail  to  recover  the  sum  or  val- 
ue of  two  hundred  and  fifty  dollars,  exclusive  of  costs,  the 
court  shall  award  to  the  defendant  a  sum  sufficient  to  co- 
ver all  extra  trouble  and  expenses,  over  and  above  what 
they  would  have  been,  had  the  suit  been  tried  before  a  jus- 
tice of  the  peace. 

§  13.  Judgments  obtained  before  a  justice  of  the  peace, 
may  be  removed  by  a  writ  of  certiorari  to  the  county  court, 
but  the  court  shall  have  no  other  or  further  jurisdiction 
in  the  matter  than  to  affirm  or  reverse  the  same,  or  to  grant 
a  new  trial  to  be  had  in  the  same  town,  or  in  the  town  ad- 
joining the  one  in  which  the  first  trial  was  had.  In  all  ca- 
ses where  a  new  trial  is  or  shall  be  granted,  the  court  shall 
designate  one  of  its  number  or  a  justice  of  the  peace  of  the 
same  county,  to  preside  thereat,  and  such  second  trial 
shall  in  all  cases  be  final  and  conclusive,  and  no  appeal 
shall  be  had  therefrom. 

&  14.  Judgments  rendered  in  a  county  court,  or  in  a 
court  held  by  a  county  judge  or  by  a  justice  oi  the  Su- 
preme Court,  maybe  removed  by  a  writ  of  error  to  the 
court  for  the  correction  of  errors;  but  that  court  shall  have 
no  other  or  further  jurisdiction  in  the  matterthan  to  affirm 
or  reverse  the  same,  or  to  grant  a  new  trial,  to  be  had  in 
the  same  county  where  the  suit  was  originally  tried;  and 
in  all  cases  where  a  new  trial  is  or  shall  be  granted,  the 
court  shall  designate  a  justice  of  the  Supreme  Court  to 
preside  thereat;  and  such  second  trial  shall  in  all  cases  be 
final  and  conclusive,  and  no  other  or  further  appeal  shall 
be  had  therefrom. 

^  15.  One  Clerk  of  the  court  for  the  correction  c 
shall  be  appointed  thereof,  who  shall  hold  his  office  during 
the  pleasure  of  the  court. 

&  16.  The  county  clerk  in  each  of  the  counties  of  the 
State,  shall  be  the  clerk  of  the  county  courts,  and  of  all 
courts  held  by  a  county  judge,  or  by  a  justice  of  the  Su- 
preme Court  in  their  respective  counties 

?!  17.  No  court  provided  for  by  this  constitution  nor  either 
of  the  members  thereof,  nor  any  other  tribunal  shall  have 


615 


power  to  license  or  appoint  any  person  to  practice  as  at- 
torney  or  counsellor  at  law.  in  any  of  the  courts  of  this 
State,  and  all  such  licenses  heretoiore  granted  are  hereby 
abroir. 

MS.  In  all  judgments  rendered  by  a  justice  of  the  peace 
ana  in  all  judgments  docketed  by  the  clerk  oi'  any  other 
court,  every  item  of  all  the  costs  adjudged  shall  be  insert, 
ed  and  become  a  part  of  the  record;  but  110  retaining  trial 
or  counsel  fee  shall  bo  allowed  us  a  part  of  such  costs; 
nor  shall  any  such  fee  be  collected  of  the  party  against 
whom  such  judgment  shall  have  been  rendered. 

§  19.  No  more  than  one  adjournment  shall  be  allowed  in 
any  cause,  unless  the  party  applying  therefor  shall  pay 
all  the  costs  which  may  have  then  accrued. 

^•20.  The  legislature  may  direct  the  election  of  one  or 
more  additional  justices  of  the  supreme  court,  in  any  of  the 
judicial  districts  of  the  State,  in  case  it  shall  become  actu- 
ally necessary  for  the  transaction  of  the  judicial  business 
in  such  districts.  Such  additional  justice  or  justices  shall 
hold  their  offices  for  a  term  to  be  fixed  by  the  Legislature, 
not  exceeding  eight  years,  and  they  shall  have  concurrent 
jurisdiction  in  all  cases  witli  those  whose  election  is  pro- 
vided for  by  the  srxth  section  of  this  article;  but  the  elec- 
tion of  such  additional  justice  or  justices,  shall  in  no 
wise  interfere  with  the  classification  of  those  whose 
election  is  provided  for  by  the  said  sixth  section. 

^  21.  The  Chief  Justice,  and  each  of  the  Justices  of  the 
Supreme  Court,  and  the  clerk  of  the  Court  for  the  Cor- 
rection of  Errors,  shall  receive  for  their  services,  an  an- 
nual salary,  which  shall  be  fixed  by  the  Legislature,  and 
paid  from" the  Treasury  of  the  State;  and  neither  ol  the 
said  justices,  nor  the  clerk  of  the  said  court  shall  receive, 
for  their  own  use,  any  fees  or  perquisites  of  office  or  any 
other  or  further  compensation  for  such  service. 

§  2-2.  County  judges  and  the  clerks  of  county  courts 
shall  receive  for  their  services  an  annual  salary,  to  be  fixed 
by  the  boards  of  supervisors  of  their  respective  counties, 
and  paid  in  the  same  manner  as  other  contingent  expen- 
ses of  the  county;  but  neither  the  county  judge  nor  the 
clerks  of  county  courts  shall  receive,  for  their  own  use, 
any  fees  or  perquisites  of  office,  or  any  other  or  further 
compensation  for  such  service. 

§  23.  The  Legislature  shall  prescribe  the  fees  to  be 
charged  by  the  Court  for  the  Correction  of  Errors,  and  by 
the  clerk  thereof,  which  fees,  when  received,  shall  be  paid 
into  the  State  Treasury,  and  become  a  part  of  the  general 
fund  of  the  State;  and  the  Legislature  shall  also  prescribe 
the  fees  to  be  charged  by  the  Judges  composing  the  coun- 
ty courts,  and  by  the  clerks  of  the  said  courts,  which  fees 
when  received  r-li.--.ll  be  paid  into  the  county  treasury,  and 
become  a  part  of  the  contingent  fund  of  the  county. 

§  24.  No  oth-.-r  cou.-ts  than  these  provided  for  inthis  article, 
shall  be  established  by  law;  and  all  testimony,  in  every 
cause  or  trial,  in  law  or  in  equity,  shall  be  taken  in  the 
manner  now  practiced  in  courts  of  law;  and  no  officer,  or 
other  person  shall  be  authorized  to  perform  any  portion 
oi  the  duties  of  justices  ot  the  Supreme  Court,  or  of  the 
judges  of  the  county  courts. 

DAVID  B.  St.  JOHN. 

FUNDS  IN  CHANCERY. 

The  resolution  of  Mr.  MANN  relating  to  the 
monies  in  the  Court  of  Chancery,  was  then  called 
up  by  Mr.  MANN.  It  had  been  left  undisposed 
of  for  several  days  past,  (since  Monday  last)  on 
account  of  the  arrival  of  the  hour  for  the  taking 
up  of  the  special  order  of  business,  viz.  the  re- 
port of  the  judiciary  committee. 

Mr.  WHITE  said  that  this  was  a  very  import- 
ant resolution.  It  had  already  occupied  a  great 
deal  of  time ;  and  although  he  felt  desirous  to  ex- 
press his  views  on  the  subject,  yet  under  all  the 
circumstances  he  felt  compelled  to  move  the  pre- 
vious question. 

Mr.  TAGGART  withdrew  his  amendment  to 
have  the  returns  furnished  to  the  next  legisla- 
ture ;  and  he  begged  the  gentleman  to  withdraw 
his  call  for  the  previous  question  for  a  few  min- 
utes that  he  (Mr.  T.)  might  make  a  statement. 

Mr.  WHITE  assented. 

Mr.  TAGGART  then  exhibited  a  voluminous 
return  from  one  circuit  only,  occupying  one  hun- 
dred and  thirty  pages,  and  containg  amounts  ex 


ceding  5jj>3U,OUU.  He  went  on  to  say  that  the  re- 
ams from  all  the  circuits  would  occupy  from  nine 
lundred  to  one  thousand  pages,  and  could  be  of 
o  use  to  the  Convention.  They  had  already  got 
all  they  wanted  lor  their  own  action.  He  then 
withdrew  his  amendment,  and  siid  he  should  con- 
tent himself  with  voting  iigainst  the  resolution. 

Mr.  WHITE  renewed  his  demand  fur  the  pre- 
vious question. 

Mr-  MURPHY  wished  to  know  who  it  was  that 
was  desirous  of  stifling  debate;  he  therefore  de- 
manded the  ayes  and  noes  on  this  morion. 

The  previous  question  was  seconded — ayes  62, 
noes  22". 

The  main  question  was  ordered,  and  then  the 
resolution  was  can  led, — ayes  63,  noes  22. 

Mr.  KIRKLAND  then  moved  that  his  proposi- 
tion to  establish  courts  of  conciliation  be  referred 
to  the  committee  of  the  whole,  having  charge  of 
the  Judiciary  reports.  Agreed  to. 

JUDICIARY  REPORTS.  • 

The  Convention  then  went  into  committee  of 
of  the  whole  on  the  reports  of  the  Judiciary  com- 
mittee. 

Mr.  CAMBRELENG  resumed  the  the  Chair. 

Mr.  BROWN  said  that  at  the  rising  of  the  com- 
mittee yesterday,  he  made  an  observation  which 
on  reflection  he  felt  was  liable  to  exception,  in 
relation  to  the  speech  of  the  gentleman  from 
Kings  (Mr.  SWACKHAMER.)  It  was  made  in  a 
playful  way  ;  but  it  was  not  intended  to  wound 
his  feelings,  nor  to  detract  from  that  respect  which 
is  due  to  that  gentleman,  and  to  every  member 
of  this  convention.  *He  certainly  was  the  last 
person  in  the  world  to  do  anything  that  would 
tend  to  produce  any  such  result ;  and  he  should 
endeavor  not  to  fall  into  the  same  error  again. 

[Mr.  B.  then  proceeded  with  his  remarks  on  the 
judiciary  system.] 

Mr.  BROWN  said  it  was  worthy  of  notice,  and 
afforded  him  a  legitimate  argument  to  be  .used  in 
the  progress  of  this  debate  that  those  who  oppos- 
ed the  union  of  the  equity  and  common  law  juris- 
dictions in  the  same  tribunal,  had  failed  to  pro- 
pose any  scheme  which  preserved  the  distinction. 
In  this  particular  they  are  not  consistent  with 
themselves.  While  they  assert  that  the  .rules 
which  prevail  at  law  and  in  equity  are  ..essen- 
tially different,  demanding  in  those  -^entrusted 
with  their  administration,  a  different  kind  of  ed- 
ucation, a  different  kind  of  knowledge,  a  differ- 
ent order  of  intellect,  and  qualifications  different 
in  all  respects, — they  offer  no  possible  plan 
wherein  this  vital  and  essential  distinction  shall 
be  maintained  in  the  j  udicial  organization.  They 
will  have  a  separate  court  of  chancery,  it  is  true 
— with  exclusive  chancery  jurisdiction,  and 
chancellors  and  vice  chancellors,  who  shall  ex- 
ercise no  common  law  powers,  but  they  all  unite 
in  the  propriety — nay  the  absolute  and  inevita- 
ble necessity,  of  creating  a  class  of  common  law 
courts  and  common  law  judges  who  shall  exert 
equity  powers  and  adjudicate  in  equity  cases. — 
In  all  the  plans  offered  to  the  Convention,  an 
equity  cause  either  in  its  origin  or  in  the  course 
of  its  progress  to  its  final  termination,  must  pass 
under  the  observation  of  a  court,  possessing  com- 
mon law  and  chancery  jurisdiction.  Does 
not  this  admission  concede  the  whole  ques- 
tion ?  And  does  it  not  virtually  yield  up  all 


616 


that  the  judiciary  committee  claim,  that  there 
is  nothing  inconsistent,  nothing  unseemingly 
or  unsuitable  in  the  union  of  the  two  juris- 
dictions, but  that  after  all  it  is  a  mere  ques- 
Uion  of  expediency,  of  economy  and  conven- 
ence?  The  proposition  of  the  committee  is  to 
abolish  the  Court  of  Chancery,  as  a  separate  and 
distinct  tribunal,  not  to  impair,  to  take  away,  or 
to  limit  in  any  degree  the  power  and  authority 
which  now  belongs  to  it.  The  design  is  to  pre- 
serve in  its  entire  strength  and  symmetry,  that 
beautiful  and  benign  system  of  jurisprudence — the 
noble  offspring  of  many  noble  minds,  and  the  col- 
lected wisdom  of  many  generations — known  in 
this  country  and  in  England,  under  the  name  of 
equity  and  jurisprudence,  and  transfer  its  exer- 
cise to  the  courts  of  common  law.  This  explan- 
ation is  due  to  those  unthinking  men,  who  rejoice 
in  the  prospect  of  the  speedy  downfall  of  the  one 
man  power,  and  the  immediate  and  utter  destruc- 
tion of  that  o<jious  authority,  which  is  supposed 
to  know  no  limit,  and  to  acknowledge  no  law, 
but  the  arbitrary  and  uncontrolled  will  of  the 
Chancellor.  It  is  also  due  to  those  who  like  him- 
self behold  in  the  establishment  and  existence  of 
this  very  equity  jurisdiction,  one  of  the  wisest 
and  noblest  institutions  of  modern  civilization, 
without  which  the  rights  of  property  would  find 
no  adequate  protection.  "  Equity  must  have  a 
name  in  every  rational  system  of  jurisprudence; 
if  not  in  name,  at  least  in  substance."  Its  pecu- 
liar and  appropriate  province  is  amongst  other 
things  to  secure  the  execution  of  trusts  and  the 
just  distribution  of  trust  property.  To  protect 
the  property  of  femes  covert,  infants  and  idiots, 
and  to  compel  the  specific  performance  of  con- 
tracts. To  relieve  against  "  losses  and  injuries 
by  accident  and  fraud — against  penalties  and  for- 
feitures— many  cases  of  irreparable  injuries  or 
meditated  mischiefs — cases  of  oppressive  pro- 
ceedings— undue  advantages — impositions,  be- 
trayals of  confidence,  and  unconscionable  bar- 
gains."  Courts  of  common  law  can  only  entertain 
a  suit  in  a  prescribed  form,  and  render  a  judgment 
for  the  one  party  or  the  other.  And  in  all  those 
cases  where  a  simple  judgment  without  qualifica- 
tions or  conditions,  or  some  peculiar  arrangements, 
would  not  do  entire  justice  between  the  parties, 
they  become  the  proper  subjects  of  equity  juris- 
diction. The  idea  that  equity  is  to  be  administer- 
ed at  the  will  or  the  arbitrary  discretion  of  the 
judge  or  chancellor,  is  not  to  be  entertained.  Mr. 
Justice  Blackstone  declares  that  "  the  system  of 
our  courts  of  equity,  is  a  labored,  connected  sys- 
tem, governed  by  established  rules,  and  bound 
down  by  precedents,  from  which  they  do  not  de- 
part. The  system  of  jurisprudence  in  our  courts, 
both  of  law  and  equity,  are  now  equally  artificial 
systems,  founded  on  the  same  principles  of  justice 
and  positive  law,  but  varied  by  different  usages  in 
the  forms  and  modes  of  their  proceeding." — 
"  There  are,"  says  LordRedesdale,  "  certain  prin- 
ciples on  which  courts  of  equity  act,  which  are 
very  well  settled.  The  cases  which  occur  are  va- 
rious, but  are  decided  on  fixed  principles.  Courts 
of  equity  have  in  this  respect  no  more  discretion- 
ary power  than  courts  of  law.  They  decide  new 
\  cases  as  they  arise  by  the  principles  on  which  for- 
\  mer  cases  have  been  decided,  and  inay  thus  illus- 
trate or  enlarge  the  operation  of  those  principles. 


But  the  principles  are  affixed  and  certain  as  the 
principles  on  which  the  courts  of  common  law 
proceed."  These  authorities  and  observations 
will  serve  to  show  what  the  judiciary  committed 
design  to  preserve  in  all  its  purity  and  power,  under 
the  name  of  equity  jurisdiction,  but  under  a  new  or-J 
ganization.  Upon  a  proposition  to  unite  the  power**' 
and  authority  which  has  heretofore  belonged  to  the 
two  separate  classes  of  courts,  the  question  occurs, 
are  the  elementary  principles  of  law  and  equity 
essentially  and  radically  different?  Have  they 
their  origin  in  sources  far  apart,  and  foreign  from 
each  other?  Or  have  they  nut  a  common  root,  a 
common  foundation  in  the  great  immutable  and 
eternal  principles  ofjustice  and  truth  ?  Do  they  con- 
flict in  their  operation,  or  in  their  application  to  the 
rights  of  property  and  the  rights  of  persons?  Or 
do  they  not  harmonize  and  blend  themselves  to- 
gether in  the  common  purpose  of  maintaining  and 
preserving  those  rights  ?  There  is  but  one  an- 
swer to  be  given  to  these  interrogations.  Both 
systems,  both  jurisdictions,  have  their  foundations 
deeply  laid  in  the  divine  attributes  of  justice  and 
truth,  and  both  are  equally  worthy  oi  the  rever- 
ence and  regard  of  an  enlightened  people.  Why 
then  may  they  not  both  be  deposited  with  the 
same  judicial  tribunal,  and  their  administration 
entrusted  to  the  same  judicial  officers?  Equity 
jurisprudence  is  of  but  recent  growth  upon  this 
side  of  the  Atlantic.  During  the  period  of  Co- 
lonial subjection  to  the  parent  country,  it  had  no 
existence  in  the  New  England  States,  and  even  at 
this  day  it  finds  no  place  in  the  judicial  codes  of 
several  of  the  States  of  the  Union.  It  made  its 
appearance  in  the  colony  of  New  York  in  the 
year  1701,  but  made  lirtle  progress,  and  command- 
ed but  little  share  ot  public  confidence.  The  rea- 
son is  obvious.  Its  vigorous  maturity  belongs  to 
a  more  advanced  stage  of  human  civilization. — 
Among  a  rural  population,  with  simple  habits, 
with  little  property  and  exclusively  employed  in 
the  peaceful  pursuits  of  agriculture,  there  is  little 
room  for  its  existence,  and  no  rights  or  obliga- 
tions or  duties  upon  which  it  is  required  to  exert  its 
influence.  It  belongs  more  properly  to  the  civ- 
ilization and  refinement  of  our  own  day  genera- 
tion, when  the  vast  and  varied  operations  of  com- 
merce, of  manufactures  and  the  mechanic  arts, 
and  the  accumulations  of  wealth  and  property  de- 
mand the  introduction  of  new  legal  elements  and 
the  application  of  new  and  more  subtile  legal 
principles.  To  Chancellor  Kent,  more  than  to 
any  other  man,  do  we  owe  the  strength  and  ma- 
turity of  equity  jurisprudence  in  this  State.  From 
the  year  1814,  when  he  took  his  seat  in  the  Court 
of  Chancery,  under  the  impulse  given  to  its  ad- 
ministration by  his  well  cultivated  and  elegant 
mind,  it  has  constantly  extended  itself  until  it  has 
embraced  within  its  power  and  influence,  and  ta- 
ken under  its  care  and  protection  many  of  the 
best  and  most  valued  interests  of  society.  To  ab- 
rogate, or  to  limit,  or  to  restrain  to  any  material 
extent,  the  exercise  of  its  authority  would  weak- 
en the  safe-guards  which  surround  the  enjoyment 
of  property. 

Among  the  reasons  in  favor  of  uniting  the  ju- 
risdictions in  one  and  the  same  tribunals,  is  the 
fact  alluded  to  in  the  able  and  logical  argument 
of  the  gentleman  from  New  York,  (Mr.  NICOLL,) 
that  the  courts  of  equity  and  of  common  law  now 


617 


have  concum -tit  jurisdiction  upon  many  subjects. 
In  the  history  \vliicli  the  honorable  member 

in  and  progress  of  the  courts,  he  show- 
ed u.s  addiction   of  both  had  gradually 
,i>la»ion    and  judicial  deci- 
sion, until  they  had  embraced  many   subjects    in 
common,  and  it  had  been  difficult  to  define   with 
of  accuracy  the  boundaries  of  their  au- 
thority.    They  had   concurrent  jurisdiction — of 
which  no  one'  proposed  to  deprive  them — of  the 
partition  uf  lands — of  questions  arising  upon  the 
execution  and  the  consideration  of  sealed  instru- 
ct off',  questions  arising  out 
of  the  relations  of  principals  and  sureties;  ques- 
of  fraud,  of  accident,  of  mistake,   and  of  a 
great  variety  of  kindred  subjects,  which  he  would 
op  to  enumerate.     The   subjects   over 
which  they  thus  exerted  concurrent  jurisdiction 
yearly  increasing,  their   territorial  bounda- 
,!hd  the  monuments  which  mark  those  boun- 
daries, we: 'e  gradually-  decaying  and  being  oblite- 
rated, thus  proving  that   their   natural   tendency 
to  unite, and  their  adaptation  for  such  union. 
He  would  now  assert,  what  no  gentleman  here 
could  successfully  controvert,   that   a  thorough 
knowledge  of  the  rules  of  the  common  laws  was 
indispensable  to  enable   an  equity  judge   to  exe- 
cute his  trust.     And  so,  too,  an  intimate  sense  of 
the    principles    which    govern   in   equity  cases 
was    equally    necessary    to    the   judge,    whose 
province  it  was  to  sit  in   the  courts  of  law. — 
He    had    already    attempted    to   show,   and   he 
he  hoped  he  had  shown,  that  the  doctrines  which 
obtain,  in  both  class  of  courts,  were  founded   in 
justice  and  in  truth ;   that  they  were  in  fact  sub- 
stantially the  same,  and  differed  only  in  the  modes 
and  forms  by   which   they  were   applied  to   the 
rights  of  pen-sons.     He  had  shown  that  it  was  the 
peculiar  province  of  the  courts  of  equity  to  afford 
relief  in  those  cases  where  from  the  multitude  of 
parti.                  -  uplex   character  of  their  several 
claims,  and  the  peculiar  and   special   duties  and 
obligations  to  be  imposed  upon  some  of  those  par- 
ties, and  riot  upon   others,  a  court  of  law,   by 
reason  of  the  form  of  its  proceedings,  could  afford 
no  adequate  or   effectual  relief.     How  could  the 
equity  judge  make  an   intelligent  application  oi 
Hie    pi  :,i..:i|>ies    of   universal    justice,    unless    he- 
knew  where  the  powers   at  the    command  of   the 
courts  of  common  UA'  were  inadequate  to  its  per- 
foi  mince  ?     At}d  how  was  the  common  law  judge 
to  k  i                     lae  jurisdiction  of  his  Court  termi- 
wa.*  also  informed  where  that  of 
the  c-mtu  of   equity  commenced?     The  truth  is, 
that  these  two  jurisdictions  are  as  much  part  and 
pared  of  i  he  same  wise  system  ot  justice  and  tight, 
as  the  rules   which  govern  the  descent  of  real  es- 
tate, lh<:  distribution  ot   personal  pioperly,  or  the 
forms  which  regulate  the  action  of' ejectment,  the 
action  ot   ivplevin.,  .,f   trover  or  assumpsit.     And 
the  rules  which  distinguish  the  remedies  in  equi 
ty  from  those   at   common  law,  are  not  more  dis- 
sim.lar  t'l.m  those  which  distinguish  any  other  of 
the  various  branches  of   l»-gal  science.    'The  veiy 
i'e   argument    of  the  learned 
and     ar.'i'inp.!-  >,M     from    Oneida    (Ah. 

KlRKI.AX!')     I  end  -red    much     that    he    h-ul    to  Say 

uunr<\ •>  -  ny.  l1' or  the  multitude  and  force  oi 
n>  facts,  tor  the  clear  and  perspicious  ar- 
rangement iu  which  they  were  presented,  for 


the  reasons  and  deductions  drawn  from  those 
acts — for  the  simplicity  the  power  and  the  ele- 
_:  HUT  of  its  language,  that  argument  was  a  model 
>f  parliamentary  eloquence,  and  he  should  ap- 
i  it,  in  all  time  hereafter  as  a  vindication  of 
nis  vote  upon  the  proposition  to  unite  the  two  ju- 
risdictions. He  would,  however,  before  he  sat 
down,  refer  to  the  judgment  of  eminent  men,  and 
to  some  events  in  the  history  of  the  courts,  in 
this  country  and  in  England,  in  corroboration  of 
:he  recommendation  of  the  judiciary  committee. 
Sir  Robert  Parnyage,  who  became  Chancellor  of 
England  in  the  reign  of  Edward  III,  was  the  first 
egularly  educated  common  lawyer  who  attained 
that  dignity,  his  predecessors  with  one  or  two  ex- 
ceptions having  been  ecclesiastics.  Speaking  of 
this  distinguished  person,  Lord  Campbell,  in  his 
lives  of  the  Chancellors,  says  :  "  The  equitable 
jurisdiction  of  Chancery  had  generally  extended 
itself,  and  to  the  duties  of  his  own  court  the  new 
Chancellor  sedulously  devoted  himself.  But  he 
thought,  as  did.Lord  Eldon,  and  the  mostcelebra- 
ted  of  his  successors,  that  the  best  qualifications 
for  an  Equity  Judge,  is  not  the  mere  drudgery  of 
drawing  bills  and  answers,  buta  scientific  knowl- 
edge of  the  common  law ;  and  he  further  thought 
it  essential  that  his  knowledge  ot  the  common 
law  should  be  steadily  kept  up  by  him  when 
Chancellor."  "  This  man"  says  Lord  Coke, 
knowing  that  he  who  knew  not  die  common 
law,  could  never  well  judge. in  equity,  (which  ia 
a  just  correction  of  law  in  some  cases,)  did 
usually  sit  in  the  court  of  common  Pleas 
— which  court  is  the  lock  and  key  of  the 
common  law — and  heard  matters  in  law, 
there  debated,  and  rnanv  times  would  argue 
himself  as  in  the  Report  of  the  17th  Edward  III. 
it  appears.''  l:i'a  letter  written  b>  Lord  Eldon  to 
James  William  F.urier,  Esq  upon  the  study  and 
practice  of  the  law,  and  daied  in  1807,  this  person 
— .iraong^i  the  mosf  accomplished  and  regularly 
educated  of  all  the  English  Chancellors — hoUN 
the  following  language:  "1  approve  altogether 
the  idea  that  such  of  ycu  as  ii.oK  to  the  courr  of 
equity  should  go,  and  for  a  good  many  years  to  the 
northern  circuit,  as  well  as  he  who  makes  the 
protession  of  the  common  law  his  peculiar  study. 
I  know  from  Utttg •pefootvaJ  cb-v:  v.ttion,  that  the 
iieneral  defect  o!  the  chiMjftry  l>ar,  is  its  igno- 
rance of  common  law  and  common  law  p'-achce: 
and  stiang:-  as  it  should  iset-rn,  yet  almost  without 
exception  it  is,  that  gentlemen  go  to  a  bar  where 
they  are  to  modify,  quality  and  soften  th«  li^or  of 
ihe  common  law,  with  very  linU-  notion  of  its 
doctrines  'and  practice."  L<>id  Brougham,  in  his 
ske  ches  of  the  lives  of  eminent  statesmen,  makes 
this  remark  ot  Lord  Chancellor  Loughbtuxxigh. 
"lie  practiced  in  the  Court  of  Chancery,  but  in 
those  days,  the  line  had  not  Iveii  drawn,  which 
now  so  hurl  fully  fur  the  equ.lv  pi  MCiitiontr  sepa- 
rates the  two  sides  of  Westminster  Hall,  and 
Chancery  leaders  frequented  ti;c  different  courts 
almost  equally  with  trie  practitioners  in  ihecuuns 
of  common  law."  These  opinions  of  distinguish* 
ed  lawyers,  well  calculated  irom  their  position 
and  piv.f..'ss:o.!-il  eyp«T!ei:tv  i<>  ,-»n  m  a  correct 
judgment  uuon  questions  of  this  nature,  would 
not,  he  iioped,  be  without  ih.'ir  itdluence  with 
the  Convention.  He  would  not  advert  to  the 
courts  of  the  United  Stales  wheie  the  jutisdic- 

52 


618 


tions  had  been  united  with  manifest  advantage  for 
more  than  half  a  century,  nor  to  the  union  of 
the  common  law  and  equity  powers,  in  the 
persons  of  our  own  circuit  judges,  with  equal  ad- 
vantages for  the  last  three  and  twenty  years.  He 
would  proceed  however  to  show  that  both  in 
England  and  our  own  state  the  equity  judges 
were  selected  indiscriminately,  from  the  mem- 
bers of  the  bar,  without  reference  to  the  courts  in 
which  they  practiced.  Indeed  we  have  not,  and 
cannot  have,  any  such  thing  as  an  exclusive 
equity  or  common  law  bar  in  this  state.  Profes- 
sional men  who  hope  to  attain  any  thing  like  dis- 
tinction in  their  line,  must  qualify  themselves  by 
severe  labor  and  study,  for  every  species  of  pro- 
fessional business.  Among  the  great  men  whose 
administration  adorned  the  English  court  of  chan- 
cery was  Lord  Eldon.  He  was  a  barrister  of  dis- 
tinction, practicing  for  many  years  at  the  cir- 
cuits in  the  trial  of  common  law  causes.  He  was 
the  attorney  general,  the  chief  justice  of  the  com- 
mon pleas,  and  the  chancellor  under  the  adminis- 
tration of  Mr.  Addington.  So  it  was  with  Lord 
Thurlow  and  with  Mr.  Wedderburne,  afterwards 
Lord  Loughborough.  Thurlow  was  the  attorney 
general  and  then  the  chancellor,  and  Loughbor- 
ough was  attorney  general,  chief  justice  of  the 
common  pleas,  and  then  became  the  chancellor. 
And  both  of  them  commenced  their  carreer  as 
barristers,  practicing  like  the  members  of  the  bar 
in  our  own  State,  in  the  courts  of  law  and  equity. 
He  might  also  name  Lord  Redesdale,  LordErsk- 
ine,  and  in  our  own  times  Lord  Brougham,  all  of 
them  chancellors  and  all  eminent  for  their  com- 
mon law  knowledge.  The  progress  of  profes- 
sional advancement  amongst  the  great  Eng- 
lish lawyers,  is  almost  as  regular  as  it  is 
in  the  army  or  the  navy.  First  it  is  to  the 
office  of  solicitor  general,  then  to  that  of  at- 
torney general,  then  perhaps  to  be  the  master 
of  the  Rolls,  and  the  Chief  Justice  of  ihe  King's 
Bench  or  the  Common  Pleas;  and  last, and  loftiest 
of  all,  to  take  the  great  seat  and  becotue  the  Lord 
Chancellor.  To  show  the  close  and  inseparable 
connection  between  the  English  courts  of  common 
law  and  equity,  he  would  quote  another  sentence 
Irom  Lord  Campbell's  Lives  of  the  Chancellors 
"The  practice  was  likewise  established,  which 
continued  down  to  the  time  of  Lord  Thurlow,  of 
the  Chancellor  deputm.'  a  puisne  judge  to  sit  foi 
him,  in  cases  of  sickness  or  political  avocation. — 
Common  law  judges  were  likewise  called  in  as  as- 
sessors, in  cases  of  difficulty."  Loid  Thurlow 
ceased  to  be  Chancellor  and  surrendered  up  the 
seals  of  office  in  the  year  1792,  and  up  to  that 
time,  according  to  this  author,  the  common  law 
judges  were  in  the  constant  habit  of  assisting  the 
Chancellor  in  the  performance  of  his  judicial 
functions.  If  we  turn  to  the  judicial  history  ot 
our  own  State,  we  shall  find  a  state  of  facts  equal- 
ly conclusive.  In  1814,  Chancellor  Kent,  like 
Lord  Eldon  and  Lord  Loughborough,  was  trans- 
lated from  the  office  of  Chief  Justice  of  one  of  the 
common  law  courts,  to  the  court  of  chancery. — 
How  well  he  performed  the  duties  of  that  high 
office — how  well  he  adorned  that  exalted  station, 
while  equity  jurisprudence  with  us  was  hi  its  in- 
fancy— what  lame,  what  undying  renown  already 
gathers  round  his  name — it  were  idle  to  say.  It 
has  been  said,  however,  that  even  he  had  to  qualify 


himself  tor  his  new  duTies  as  Chancellor,  by  a 
long  and  laborious  course  of  study  and  pre- 
paration. This  fact  none  will  doubt.  "Labor — pa- 
tient, unwearied,  unremitfed  labor — could  alone 
produce  the  rich  fruits  of  his  judicial  administra- 
tiation,  and  the  honors  he  has  so  justly  won.  In 
this  respect  his  life  and  character  form  a  model 
worthy  of  all  imitation.  It  must  be  remembered 
however,  that  in  1814,  Chancery  practice  and 
Chancery  jurisprudence  was  to  some  extent  un- 
known to  the  bar  of  the  state.  It  was  a  branch  of 
legal  science,  with  which  very  many  of  the  best 
lawyers,  were  by  no  means  familiar.  And  the 
preparatory  studies  of  the  Chancellor  were  in 
some  degree  attributable  probably  to  this  circum- 
stance and  the  absence  of  equity  practice,  wrhile 
he  himself  was  a  member  of  the  bar.  Chancellors 
Sanford  and  Jones,  like  their  great  predecessor, 
were  not  selected  on  account  of  their  exclusive 
knowledge  of  equity  law.  Nor  was  such  the  quali- 
fication which  recommended  their  successor  to 
his  present  position.  A  most  respectable  judge 
of  one  of  the  Circuits  he  was — if  we  believe  his 
written  address  to  the  members  of  the  bar — at  the 
time  of  his  appointment,  by  no  means  perfect  or 
accomplished  in  the  knowledge  of  equity  jurispru- 
dence. Yet  he  has  iahis  judicial  career  been  most 
useful — most  valuable — most  honorable  to  him- 
self and  the  great  state  whose  chief  judicial  officer 
he  now  is.  This  array  of  facts  and  these  argu- 
ments have  led  the  judiciary  committee  to  the 
conclusion  that  there  was  no  inherent,  intrinsic 
objection  to  the  union  of  the  equity  and  the  com- 
mon law  jurisdictions.  To  regard  it  as  a  question 
of  expediency,  convenience  and  economy,  there 
will  be  but  one  court,  one  class  of  judges,  and 
one  class  of  practitioners.  It  will  be  the  first 
step  towards  an  amalgamation  of  the  practice 
and  proceedings,  and  the  hope  may  then 
be  indulged  that  under  a  wise  and  enlight- 
ened judicial  administration,  common  law 
and  equity  will  cease  to  be  regarded  as  rival  and 
separate  systems.  Good  men  look  to  the  institu- 
tions of  the  past  and  the  present  times  with  pride 
and  veneration.  Even  at  this  day,  in  this  great 
and  free  State,  we  regard  the  courts  and  the  legal 
tribunals  of  the  parent  country,  the  depositories 
of  the  rights  and  liberties  of  men  in  past  ages, — 
with  reverence  and  profound  respect,  as  models 
worthy  of  constant  imitation.  We  must  remem- 
ber, however,  that  property  there  is  gathered  to- 
gether in  great  masses  and  in  few  hands,  while 
here  with  us  it  is  dispersed  and  distributed  like 
the  early  dew  and  the  summer  rain.  Our  institu- 
tions must  conform  to  the  condition  of  our  peo- 
ple. We  could  not  endure  that  our  law  suits 
should  be  so  costly  and  prolonged  through  so  ma- 
ny years  of  "  hope  deferred"  as  they  are  in  En- 
gland. Our  courts  of  justice  must  be  constructed 
with  reference  to  the  speedy,  prompt,  the  effec- 
ual,  the  economical,  as  well  as  the  intelligent 
dispatch  of  the  public  business.  Tribunals  cre- 
ated upon  any  other  principle,  were  unsuited  to 
the  condition  of  our  people.  Such  he  hoped  was 
the  character  of  the  courts  which  the  judiciary 
committee  proposed  to  create,  and  as  such  he  con- 
mended  them  to  the  favor  of  the  convention. 

Mr.  MARVIN  said  that  he  wished  to  make  a 
few  remarks  upon  the  practical  operation  of  the 
systems  reported  by  the  committee.  He  was  of 


619 


•;>inion  that  the  force  which  they  suggested 
would  be  insufficient,  as  they  had  proposed  toor- 
>e  it.  Again,  equity  jurisdiction  could  be 
i-  administered  by  a  separate  organization, 
•  blending  of  the  two  as  proposed  by 
Mr.  O'CoNOR.  Under  the  plan  proposed  by  him- 
Mr.  M.)  the  mode  of  transacting  equity  bu- 
precisely  ;is  the  gentleman  from  Or- 
i  M  r.  BROWN)  had  indicated.  But  still  there 
l>e  some  review  of  the  proceedings.  The 
gentleman  from  Orange  (Mr.  BROWN,)  says  that 
the  judge  would  send  up  the  evidence  to  the 
court  in  banque.  He  would  appeal  to  the  com- 
mon sense  of  the  committee  to  say  if  .the  judge 
having  the  evidence  in  a  case  all  before  him,  was 
not  the  proper  man  to  make  the  decree  ?  But  un- 
der the  report  presented  by  the  committee,  this 
cannot  be  done,  unless  the  judge  decides  instant- 
tr. 

Mr.  KiRKLAND  begged  to  correct  the  gentle- 
man (run  Chautauque  (Mr.  MARVIN.)  The 
committee  proposed  o  dispose  of  these  equity 
cases  precisely  as  of  cases  in  courts  of  law.  Mr. 
K.  proceeded  'o  detail  the  process. 

Mr.  MARVIN  asked  him  who  they  proposed 
should  make  the  decree? 

AJr.  KiRKLAND  said  that  instead  of  being 
made  by  one  Judge,  as  now,  it  would  be  made  by 
the  court  in  banque,  when  the  party  had  the  opin- 
ion* of  three  j  idges  instead  of  one.  And  from 
th  it  court  there  lay  but  one  appeal  to  the  courts 
of  appeals.  This  proved  the  symmetry  ot  the 
whole  system. 

Mr.  JORDAN  also  explained  what  he  under- 
stood would  be  the  practical  operation  under  the 
plan  which  the  standing  committee  had  proposed. 

Mr.  MARVIN  went  on  to  point  out  what  he 
d.-emed  the  defects  in  the  plan.  He  contended 
that  it  was  of  the  first  importance  that  the  judge 
hearing  i  he  c?use  should  make  the  decree.  All 
seemed  to  agree  that  we  must  dispense  with  the 
presen!  sys  em  of  taking  testimony  by  examiners. 
And  he  (Mr.  M.)  was  quite  confident  that  under 
the  system  proposed  by  him  all  this  would  work 
effectually  and  beneficially  and  harmoniously. 

A  i  explanation  ensued  between  Messrs.  JOR- 
DAN and  PERKINS  on  the  subject  of  appeals. 

Mr.  RUGGLES  desired  to  submit  a  few  obser- 
vations, in  answer  to  the  gentleman  from  Chautau. 
que  (Mr.  MARVIN);  and  his  answer  to  that 
gentleman  would  also  bean  answer  to  the  gentle- 
man from  St.  Lawrence,  (Mr.  PERKINS.)  The 
gentleman  from  Chautauque  thinks  that  the  plan 
proposed  by  the  committee  is  not  defective  in 
force,  or  upon  the  ground  that  it  did  not  provide 
a  sufficient  number  of  judges,  and  the  gentleman 
could  not  well  suppose  it  to  be  deficient  in  that 
respect,  inasmuch  as  the  number  he  himself  pro- 
poses, was  less  than  that  of  the  committee.  If, 
therefore,  there  be  any  ground  upon  which  the 
gentleman  assumed  that  the  plan  of  thecommitfee 
WHS  insufficient,  it  must  be  from  the  organization, 
and  not  the  number  ol  the  judges.  Now,  he  (Mr. 
R.)  thought  that  a  few  minutes  would  enable  him 
to  show  that  the  plan  proposed  by  the  committee, 
was  the  one  which  was  the  most  efficient  of  all 
others,  and  that  the  plan  proposed  by  the  gentle- 
man from  Chautauque,  was  in  many  respects  far 
less  efficient.  In  speaking  of  the  mode  of  doing 
equity  business,  the  gentleman  thinks  there  is  an 


advantage  in  the  plan  he  proposes,  because  the 
president  judge  could  act  upon  the  law,  and  make 
a  decree  in  equity  cases.  He  (Mr.  R.)  was  at  a 
loss  to  understand  how  the  gentleman  supposed 
that  the  judge  of  the  supreme  court  could  not  act 
in  the  same  way.  The  judge  holds  the  circuit — 
he  has  the  testimony  in  equity  cases,  and  he  re- 
duces it  to  writing.  He  (Mr.  R.)  begged  leave  to 
say  that  from  the  experience  he  had  himself  in 
that  kind  of  business,  he  was  satisfied  that  three 
out- of  four  of  all  the  causes  could  be  decided  on 
the  spot,  without  any  difficulty  at  all ;  because 
three  out  of  four  of  the  causes  brought  into  the 
court  of  chancery,  involve  the  questions  of  lact, 
and  not  of  law.  There  was  another  advantage  in 
the  plan  of  the  committee,  (and  it  may  be  also  in 
the  plan  of  the  gentleman  from  Chautauque)  and 
it  was  this :  That  in  all  cases  in  which  an  issue 
could  be  made,  the  question  may  be  tried  by  a 
jury,  and  not  by  the  civil  officers  before  whom  the 
evidence  is>  heard.  His  president  judges  had  sev- 
eral counties  in  his  district,  and  would  not  be  at 
hand  at  all  times  where  a  cause  was  tried.  Mr. 
R  then  went  into  a  calculation  of  the  time  which 
would  be  occupied  by  the  several  judges  in  at- 
tending their  several  courts.  By  the  present  sys- 
tem, the  several  courts  occupied  in  their  sessions 
1800  days  in  each  year.  He  supposed  there  could 
be  no  doubt  that  the  force  provided  in  the  report 
of  the  committee,  could  perform  all  the  duties 
which  were  performed  by  the  supreme  court,  cir- 
cuit courts,  the  common  pleas  and  general  sessions 
in  the  same  time  which  these  courts  now  occu- 
pied— he  was  willing  to  be  liberal  in  his  state- 
ments, but  he  did  not  doubt  in  the  least  that  they 
would  require  not  more  than  half  the  time — and 
he  made  a  calculation  of  the  time  which  would 
be  occupied  by  each  of  the  judges  of  the  several 
courts,  in  which  he  supposed  that  144  weeks 
would  be  the  whole  time,  which  divided  among 
28  judges,  gave  [five  weeks  to  each  judge  who 
practiced  in  law  and  equity.  He  supposed  that  it 
would  take  one-third  the  same  length  of  time  in 
chancery  practice.  In  all  the  courts,  he  had  given 
27  weeks  to  each  judge,  which  allowed  him  the 
remainder  of  the  year  for  deliberation.  One  dif- 
ference between  the  system  of  the  gentleman  from 
Chautauque  and  the  committee,  was  that  in  the 
latter  the  judges  of  one  court  might  be  called  to 
assist  in  anomer,  when  there  was  a  pressure  of 
business.  In  that  of  the  gentleman  from  Oneida 
he  could  see  no  substantial  difference. 

Mr.  MANN  had  but  a  word  or  two  to  say.  He 
considered  the  report  of  the  majority  of  the  com- 
mittee as  worthy  of  much  consideration.  It  pro- 
posed a  material  change  in  our  judiciary  system 
and  for  the  better.  And  he  could  say  the  same  of 
the  minority  reports.  For  one  he  felt  much  in- 
debted to  all  these  gentlemen  for  their  labors  and 
the  result  arrived  at  by  them.  He  was  for  abol- 
ishing the  courts  of  errors  and  of  chancery.  But 
we  must  have  equity  powers  somewhere,  and  he 
would  confer  them  upon  courts  of  record.  We 
must  have  a  supreme  court,  and  he  would  give  it 
equity  powers.  If  it  was  thought  proper  to  retain 
the  Common  pleas  court,  he  thought  the  plan  sug- 
gested by  Mr.  MARVIN  the  best '  that  had  been 
proposed.  But  he  rose  to  suggest  that  the  same 
privileges  should  be  extended  to  the  city  of  New 
York  that  were  enjoyed  in  the  country.  He 


620 


would  have  justices  of  the  peace  elected  in  every 
ward,  to  hold  courts  therein.     He  would  extend 


mitigate,  and  some  of  th«m  entirely  to  avoid.     If 
we  fail  our  failure  is  not  onlv  disgraceful  to  our- 


their  jurisdiction  to  the  amount  of  $'150  exclu- 1  selves  but  it  is  a  great  calarn ity  to'the  whole  peo- 
sively,  and  concurrent  jurisdiction  somewhat  far- !  pie.     But,  sir,  whatever  we  do  we  must  act  de- 
is 


ther.  He  believed  such  courts  would  be  of  great 
advantage  in  the  disposal  of  minor  causes  in  the 
city.  He  would  not  allow  of  more  than  one  ap- 
peal from  these  justices  courts. 

Mr.  SHEPARD  said:  Mr.  Chairman,  I  am  op- 
posed to  the  report  of  the  majority  of  the  commit- 
tee. In  my  judgment  it  is  wholly  inadequate  to 
remedy  the  evils  of  the  present  judicial  system. 
Its  defects  are  plain — vital  and  far  beyond  the 
healing  skill  of  the  legislature  or  the  judges.— 
The  judiciary,  sir,  must  be  by  far  the  most  im- 
portant -of  all  human  institutions.  Indeed  it  is 
one  of  the  necessary  conditions  of  civilized  gov- 
ernment to  depend  in  a  very  large  degree  upon 
the  administration  of  justice,  for  no  evil  is  so 
quickly  felt  or  so  severely  resented  as  any  in- 
fringement of  those  rights  of  property  or  of  per- 
son which  have  been  consecrated  to  the  use  of 
men.  And  of  no  government  can  this  be  more 
truly  spoken  than  our  own,  where  the  people 
themselves  make  the  law  and  change  it 
as  the  public  welfare  and  the  public  happiness 
demand.  The  great  variety  of  sentiment,  and  the 
warmth  of  feeling  that  have  distinguished  this 
wide  and  amplified  discussion  are,  therefore,  not  to 
be  regretted.  This  subject,  like  almost  every  oth- 
er that  deeply  affects  the  interests  of  mankind,  is 
full  of  practical  difficulties  which  strike  the  minds 
of  different  men  with  different  degrees  of  force. 
Even  the  lawyers,  who  are  most  intimate  with 


our  present  judicature 
mon  sufferers  from  its 


-who  have  long  been  corn- 
evils,   and  whose   minds 


would  consequently  seem  to  be  impelled  toward 
similar  conclusions — disagre'e  in  the  material  re- 
medies to  be  applied.     This,  however,  is  not  un- 
natural, for  they   never  did  yet  agree  upon  any 
considerable   point  that  had  not  the  authority  ol 
a  legal  judgment  to  support  it.     Sir,  speaking 
comparatively,  our  judiciary  system  does  not  oc- 
cupy any  very  large  space  in  the  business  of  the 
state — the.  mighty  aggregate  of  our  other  transac- 
tions is  immeasureably  beyond  the  labors  of  dis- 
pensing justice  from  the  constituted  tribunals.  II 
does  not,  therefore,  derive  its   dignity  so   much 
from  the  vastness  of  its  duties  as  from  their  sacrec 
and   indispensable  character.     But  such  as  it  is 
we  may  regard  it  with  complacency — nay,  witl 
pride.     Its  voice  heard  in  the  recorded  decisions 
has  been  echoed  with  respect  on  every  court  of 
this  vast  nation,  and  even  where   its  expositions 
of  the  great  principles  of  law  have  been  doubted 
or  denied,  dissent  has  been  as  hesitating  and  re- 
luctant as  former  approval  was  hearty  and  sincere 
Such  as  it  is — it  has,  except  in  one  single  unhap 
py  instance  that  I  remember,  shielded  the  Con 
stitution  against  the  graspings  of  Executive  am 
legislative  power.     Such  as  it  is — it  has  done  jus 
tice  between   legal   persons  and   individuals.     ', 
know  it  has  been  slow  in  its  great  office.  I  know  it: 
machinery    has    become    cumbered    by    ill-de 
vised  forms,  and  that  it  has  not  in  any  great  de 
gree  been  liberalized  as  our  necessities  required 
I  know  that  the  judicial  power  blended  with  tin 
legislative  in  the  highest  court,  has   continual!; 
threatened  danger  to  our  most  sacred  institutions 
All  these  evils  I  trust  we  shall  be  able  largely  tc 


berately.     Caution   is  an   e  -t  of  true 

visdom.  The  administration  of  the  law  in  this 
tate  is  a  great  system.  Indeed  the  largeness  of 
abor  alone,  induces  us  to  regard  it  with  a  kind  of 
we.  1  am  sure  the  amount  of  such  business  done 
mongst  us  greatly  surpasses  the  proportion  of  the' 
ther  States.  This  is  an  unavoidable  consequence  of 
he  superiority  of  our  commercial  transactions,  for 
itigation  follows  property  wherever  ir  goes.  But 
ts  complexity  tar  exceeds  its  threat ne-s,  and  as  a 
practical  difficulty  is  much  more  considerable. — 
n  no  respect  is  the  progress  of  society  more  surely 
narked  than  by  the  c« •replication  of  rights.  Deli- 
cate and  intangible  rights  are  regaided  by  refined 
ocieties,  and  become  the  creatures  of  governmen- 
al  protection — mankind  is  taught  to  respect  ab- 
itractions  as  the  roots  ot  practical  things.  But 
his  complication  is  chiefly  owing  to  the  necessary 
changes  of  property — lo  the  groat  vaiiety  of  estates 
Yom  !he  slightest  lien  to  absolute  ownership,  that 
can  be  created  out  of  if  by  the  wants  of  business 
>r  the  caprices  of  individuals.  And  permit  me  to 
add  that  the  infirmity  of  human  judgment  iyet 
urther  entangles  a  subject  which  is  already  the 
most  difficult  thst  employs  the  ingenuity  of  man. 
All  these  causes  therefore — the  largeness  of  fhe 
abor — the  complication  of  rights— ,md  the  intrin- 
sic unsoundne.^s of  human  judgment,  contribute  to 
render  our  judicial  system  one,  difficult  to  be  un- 
derstood— difficult  to  be  administered — and  only  to 
be  approached  in  its  reform  with  the  greatest  care 
and  with  the  most  profound  wisdom.  In  the  most 
common  aflairs  of  life,  a  subtle  and  discriminating 
nlellect  finds  ample  opportunity  for  its  exercise 
— how  much  greater  the  occasion  in  touching  a 
system  by  which  the  soundest  judgments  that  man: 
can  exercise  is  t<>  be  applied  to  all  that  makes  life 


dear  :  to  the  rights  of  property, 
I  at  ion — nay,  to  life  itself. 


liberty,  family  re« 
we  find  a  judicial 


system  in  full  operation;  we  are  not  disposed  to 
question  the  great  principles  of  law  it  promul- 
gates. Those  principles  are  p-tr'r  of  our  tree  heii- 
tage  ;  they  have  been  recognized  by  the  people 
since  the  establishment  of  our  government.  They 
change,  it  is  true;  but  slowly,  and  oftenest  with- 
iheever  changing  condition  ot  society.  We  hope 
to  give  them  to  our  children,  in  no  respect  injured 
but  rather  improved  by  our  fostering  hands.  Our 
duty  is  to  leave  them,  untouched  by  any  arbitrary 
rule  that  we  might  lay  down,  to  be  varied  by  the 
people  as  their  varying  w.tnts  may  require.  We 
find  that  system  working  in  many  respects  well, 
and  in  many  respects  ill.  Where  it  has  worked 
well,  I  am  willing  to  keep  it  :  where  it  has  worked 
ill  —  where  it  has  not  done  lull  justice,  in  a  man- 
ner as  rapid  and  complete  as  any  other  system  we 
can  devise  —  let  us  amend  it.  Where,  however, 
we  doubt;  where  we  are  not  sure  that  we  can  be 
benefitted  by  any  change,  let  us  rely  upon  the  wis- 
dom of  our  fathers,  and  stand  still.  I  do  not  love 
change,  lor  the  sake  of  change,  more  than  I  love 
lo  stand  still,  for  tlie  sake  of  standing  still.  But 
whatever  we  do,  we  cannot  do  all  that  some  gen- 
tlemen desire:  our  power  is  limited  to  make  the 
frame—  the  skeleton  ol  the  judiciary:  the  people, 
through  their  representatives  in  the  Legislature, 


621 


must  clothe  it  with  the  veins,  the  arteries,  the 
muscles;  arid  all  beside  tbat  goes  to  make  it  ft  living 
furore..  Jini''  will  not  permit  us  to  wiihdraw 
our  consideration  from  the  gr^at  outlines  of  the 

:n  to    the    minure  details  by  which   it  is  to 

be  rendered  more  or  less  etlective.     For  this  rea- 

I    shall    not    di-  two   of   my  col- 

ies,  (Mr.  O'CoNOR  and  Mr.  NICOLL)  have 
(1>  nc — the  mere  forms  of  procedure  in  courts.  I 
with  their  opinions,  but  we  cannot  apply 
the  remedy,  upon  this  floor.  No  sir  !  a  discus- 
sion about  pleadings  would  be  interminable. — 
We  can  only  make  the  system  of  courts  by  which 
our  Judicature  is  to  be  administered  and  provide 
an  adequate  judicial  force  for  that  purpose — the 

-:.ituiv  must  apply  that  force  as  the  public 
business  requires.  I  shall  now  proceed  to  state 
these  leading  defects  which  characterize  the  re- 
port of  the  majority.  The  first,  and  in  my  judg- 
ment a  serious  one,  is  that  there  is  nojarovision 
for  a  separate  administration  of  "equity  Jurispru- 
dence, either  by-a-d-rflfereTlt  "court,  or  by  differ- 
ent, particularly  designated,  judges  of  the  same 
court.  I  h-epa-t-s-hall  not  be  misunderstood.  I 
do  not  stand  upon  this  floor  the  advocate  of  the 
present  court  of  chancery.  I  have  a  hearty  de- 
testation of  the  one  man  power.  In  a  republican 
government,  no  man,  however  high  his  character 
or  commanding  his  intellect,  should  be  permit- 
ted to  wield  the  patronage — the  coercive  power — 
the  mighty  and  controlling  influences  of  such  a 
tribunal.  It  is  incompatible  with  the  security  of 
the  government  and  with  the  safety  of  the  people. 
I  do  not  think  there  can  be  any  disagreement  on 
this  point.  Popular  liberty  must  be  secured  by 
the  diffusion  of  power.  If  the  liberties  of  the 
people,  should  ultimately — in  the  course  of  ages 
— be  stricken  down,  they  themselves  will  have 
concentrated  the  power  to  do  it,  in  the  hands  of 
their  destroy-'rs.  This  court  is  not  a  necessary- 
instrument  of  our  government  and  it  is  far  too 
dangerous  to  be  employed.  But  sir,  whatever 
may  become  of  the  court  of  chancery,  I'assume 
that  equity  powers  are  still  to  be  exercised.  The 
unbending  rigor  of  the  law  itself  does,  sometimes, 
that  very  injustice  it  was  established  to  prevent. 
This  is  a  necessary  consequence  of  the  weakness 
of  human  foresight,  and  no  system  of  laws  can  be 
altogether  safe  or  beneficent  in  its  effects  which 
does  not  somewhere  secure  a  relief  against  the  dis- 
covered fallability  of  mankind.  Beside,  sir,  there 
is  a  marked  and  decided  difference  between  the 
great  substantial  parts  of  law  and  equity  jurisdic- 
tion— a  difference  resting  not  solely  in  the  will 
of  the  Legislature — nor  in  any  great  degree  de- 
pendent on  or  controlled  by  it,  but  existing  in 
the  unalterable  nature  of  things  themselves. — 
The  jurisdiction  of  law  is  confined  to  matters 
comparatively  simple  in  their  character — where 
one,  or  at  most  a  lew, issues  can  be  presented,  tried 
and  adjudged.  But  sir,  equity  does  not  proceed 
upon  the  harsh  and  unyielding  rules  of  law.  It 
is  true,  as  has  been  said,  that  the  adjudicati 
equity  tribunals  have  become  a  system  as  well 
settled  and  defined  as  the  body  of  the  common 
law  itself,  but,  does  this  render  it  less  effectual 
for  the  purp..si.-.s  it  was  designed?  i\o  sir  !  Hu- 
man right  ought  to  stand  upon  as  sure  a  founda- 
tion as  human  weakness  will  permit.  Every 
man  should  be  able  to  ascertain  from  the  ex- 


pressed will  of  the  people,  as  spoken  by  the  lips 
of  the  Equity  Judge  or  by  the  corrective  and 
overruling  voice  of  the  Legislature — what  is  that 
equity  to  which  he  is  entitled.  To 
this  dependent  upon  his  own  will  would 
be  too  absurd- to  be  spoken  of  tor  a  moment  but 
to  make  it  dependent  upon  the  will  of  a  chancel- 
lor, who  is  bound  by  no  known  authority — whose 
j  ud  j;ment  receives  the  sanction  of  no  precedent 
rule — but  who  sits  supreme  within  the  .circle  of 
his  own  discretion  and  draws  from  his  own  mind, 
rather  than  from  the  fountain  of  an  enlarged  and 
salutary  jurisprudence,  the  principles  of  equity, 
distorted  by  prejudice,  or  it  may  be  blackened 
by  corruption — would  be  not  only  absurd,  but 
wicked  and  perilous  in  the  extreme.  The  form- 
er case  would  cause  wrong  and  individual  suffer- 
ing, but  the  latter  would  shake  the  strongly  based 
columns  of  society,  and  involve  the  whole  com- 
monwealth in  the  same  mighty  calamity.  All 
that  has  been  said  against  the  principles  of  equi- 
ty in  this  discussion,  simply  because  those  prin- 
ciples happen  to  be  long  settled  and  well  settled, 
and  because  the  laborious  wisdom  of  former  years 
was  devoted  to  expound  them,  I  shall  wholly  dis- 
regard— it  is  not  particularly  worthy  of  no- 
tice. Our  forefathers  lived  and  care^  and 
thought  a  little  for  us  as  well  as  for  themselves. 
The  exceeding  complication  of  many  subjects  of 
equity  jurisdiction,  though  it  may  be  regretted,  is 
one  of  the  necessary  incidents  to  high  civilization 
— to  extended  commerce,  and  to  the  vast  and  in- 
volved circle  of  the  transactions  of  men.  I  have 
touched  this  consideration  before,  and  I  shall  not 
amplify  it  here.  Uses — Trusts  expressed  and  im- 
plied ;  Accidents,  the  remedies  for  which  no  fore- 
cast can  provide ;  Frauds,  the  result  of  every 
complication  of  business,  and  every  device  of  sub- 
tle and  ingeniftus  minds  ;  Partitions,  Accounts, 
Specific  performances — these  are,  and  must  be, 
the  subjects  of  an  equity  jurisdiction.  I  know 
that  gentlemen  have  spoken  warmly  in  favor  of 
employing  a  jury  in  every  suit,  and  I  do  not  for- 
get that  there  is  something  exceedingly  plausible 
in  this  notion  to  an  inexperienced  mind.  Sir,  I 
wish  we  were  able  to  do  so.  No  man  can  go  be- 
yond me  in  his  admiration  of  the  jury.  It  per- 
forms a  great  function  in  our  government  and  one 
which  is  not  often  mentioned.  I  mean  the  tem- 
pering of  the  law  to  the  circumstances — and  the 
infusion  into  it  of  the  feelings  of  the  people.  The 
character  of  men  is  elevated  by  their  being  made 
the  ministers  of  justice  at  the  altar  where  her  sa- 
cred duties  are  performed ;  by  association  with 
the  judges,  they  obtain  a  practical  knowledge  of 
the  principles  of  law  and  their  application,  while 
the  judges  by  the  same  means,  learn  many  of  the 
evils  oi'an  existing  judicature,  (for  evils  it  must 
have,)  and  the  most  ready  and  acceptable  mode 
for  their  correction.  I  am,  for  these  reasons,  in 
favor  of  employing  the  jury  in  every  practicable 
case — the  public  welfare,  the  right  administra- 
tion of  your  judicial  system,  demand  no  less. — 
But  it  may  be  accounted  among  our  misfortunes 
that  these  are  causes  to  which  it  cannot  be  ap- 
plied. I  will  not  attempt  to  enumerate  them.  I 
suppose  all  who  have  weighed  this  matter  will 
readily  assent  to  the  proposition.  I  put  only  a 
single  case  to  those  gentlemen  whose  thoughts 
have  not  been  turned  in  this  direction — a  trust 


622 


estate,    where   the   parties   are    numerous — say 
twenty,  thirty,  forty  or  fifty — and  where  the  rela- 
tion of  every  party   to  every  other   party  in   the 
suit  is  somewhat  different.     If  the  jury  were  em- 
ployed, then  the  issues   presented  must  be  very 
numerous,  and  the  labor  of  trial  must  be  burthen- 
some  beyond  the  patience  of  man  to  bear.     And, 
again,  these  issues  can  in  no  way  be  arrived  at  by 
the  parties  themselves,  under  any  system  of  plead- 
ing applicable  to  such  a  case.     They  must  there- 
fore be  made  up  by  the  court  or  by  some  of  its  of- 
ficers, especially  deputed  for  that  purpose.     The 
power  to  make  the   issue  involves   the  power   to 
give  a  coloring  to  the  case  by  the  mode  in  which 
the  question  is   presented  to   be  tried,  or  to  pre- 
sent unnecessary  and  immaterial   issues.     These 
two   consequences   then   irresistibly  follow: — the 
extent  of  jury  duty  will  be  greatly  increased,  and 
the  equity  judge  will  have  the  same  power  that  he 
now  possesses — and  in  my  judgment  always  will 
possess,  so  long  as  he  can  determine  what  the  issue 
is — the  power  of  presenting  erroneously  the  true 
question  in  dispute.     The  latter  evil  is  in  the  na- 
ture  of  things    inseparable  from   every   system 
where  decisions  are   required  to  be   made  upon 
involved  and  complicated  statements.      I  do  not 
know^that  it  is   any  worse  than  the  power  exer- 
cised by  a  common  law  judge,  by  the  expression 
of  an  opinion  unwarranted  by  the  facts  of  the  case, 
to  sway  the  judgment  of  the  jury  ;  but  such  as  it 
is,  we  must  guard  against  it  by  the  selection  of 
those  men  for  judges,  who  by  the   clearness  of 
their  intellects  and  the  purity  of  their  characters, 
give  us  the  best  assurance  against  a  natural  defect 
in  every  system  of  jurisprudence,   and   one  that 
we  cannot  wholly  hope  to  avoid.     Sir,  the  equit) 
business  of  this  State  has  increased  very  greatly 
since  the  year  1821,  with  the  natural  increase  of 
our  population,  of  our  commerce,   both  internal 
and  external,  and  from  many  other  causes  that  I 
will  not  undertake  to  enumerate.     Our  courts  of 
equity  are  now  fully  occupied,  and  the  extent  of 
their  employment  must  increase   with  the  pro- 
gress of  time.     This,  in  my  way  of  thinking,  con- 
stitutes a  strong  argument  in  favor  of  the  separa 
tion  of  law  and  equity  jurisdiction.     I   am  quite 
clear  that  such  a  separation  would  be  unwise.     I 
am  sure  it  would  be  at  variance  with  a  principle 
that    has  done  more  for  the  development  of  hu 
man  industry,   both   physical   and  mental,  than 
any  other.     1  allude   to  the   division  of  labor. — 
This  has  been   the   great  cause  of  perfection  in 
every  art.     Every  man  recognizes,  every  man  ap- 
plies it,  so   far  as   possible,  in   the  details  of  his 
occupation ;   and  do  vou  believe,  sir,  that  it  will 
lose  its   force  when  applied  to   your  judiciary. — 
Sir,  I  think   not.     In   the  first  place,  the  judges 
who  sit  in  equity  alone  will   have  superior  skil] 
in   that  department ;  that  skill   will  be  of  great 
service    in    the    administration    of   justice;    it 
will   fix    more  definitely  those    rules   of  equi- 
ty,   which    are    evolved    from    the    considera- 
tion   of    a    great    variety   ot    cases,   and    it    wil 
secure     the    most     rapid    dispaich    of    business 
according  to  the  established  modes.     I  say  the  es 
tablished  modes— if  you  would  have  these  chang 
ed,  and  I  am  sure  they  should  be  in  many  respects 
it  must  be  done  by  the  Legislature.     Judges,  like 
other  men  are  too  apt  to  employ  forms  that  have 
become  familiar,  and  to  do  business  according  tc 


heir  previous  habit.  B*it,  sir,  the  gentleman 
rom  Herkimer,  (Mr.  LOOMIS)  has  rejected  the 
pplication  of  this  principle  to  the  separation  of 
aw  and  equity  tribunals.  The  substantial  argu- 
ment that  he  has  addressed  to  the  Committee  is 
hat  there  is  no  great  difference  between  law  and 
quity,  inasmuch  as  both  are  lor  f.he  redress  of 
wrongs.  This  he  has  presented  in  a  great  variety 
f  forms,  but  they  all  rest  on  the  basis  I  have  sta- 
ed.  Sjj-ip  it  of  all  its  illustrations — not  tending 
o  illustrate — resolve  it  into  its  own  substan- 
elements,  and  the  answer  is  obvious.  V\  hile 
t  is  true  that  both  are  tor  the  redress  of  wrongs, 
t  is  equally  true  that  wrongs  aie  infinitely  diversi- 
ied  in  their  natures  and  infinitely  diversified  in 
heir  remedies.  If  we  are  assailed  upon  this  floor, 
we  retort  as  the  rules  of  parliamentary  bodies 
)ermit ;  if  we  are  attacked  in  the  streets,  we  re- 
iiot  with  a  violent  hand;  it  our  property  is  wrong, 
ully  taken  away,  we  reclaim  it  by  seizure,  if  we 
can  ;  or  if  not,  then  we  seek  the  established  tribu- 
nals for  relief;  if  we  have  interests  in  a  large  es- 
ate,  in  common  with  many  other  persons — inter- 
ests which  are  nice,  complex  and  embarrassing  ; 
we  seek  a  court  of  equity,  not  for  litigation  but 
^  disentanglement,  and  a  jus;,  permanent  and  ir-  . 
revocable  settlement-  But  I  will  not  trouble  the 
Committee  with  illustrations  of  this  description 
'or  a  slight  effort  of  the  imagination  will  produce 
a  vast  number.  When  all  the  wrongs  for  which 
elief  is  sought  in  Ihe  courts,  shall  be  reduced  to 
,he  same  class,  and  becomprehensible  in  the  same 
general  remedies,  I  shall  be  exceedingly  happy  to 
agree  with  my  estimable  friend  Irom  Heikimer,but 
hat  time  is  far — far  away  beyond  the  reach  of  any 
Constitution  or  any  law  that  we  shall  ever  frame. 
One  of  my  colleagues,  who  sits  just  at  my  left 
[Mr.  NICOLL)  has  adduced  an  argument  from  the 
practical  difficulty  of  observing  the  boundary  be- 
ween  law  and  equity,  and  he  magnified  that  dif- 
ficulty until  it  appeared  to  be  subversive  of  all 
justice..  Nothing,  he  seemed  to  think,  could  be 
nore  vague,  more  shadowy  and  more  perplexing, 
:han  this  utterly  uncertain  region.  It  reminded 
me  of  nothing  so  much  as  that  chaos,  where  the 
Prince  of  Darkness,  could  neither  wholly  walk, 
nor  swim,  nor  fly.  Sir,  I  am  free  to  admit  that 
difficulties  may  arise  from  the  confusion  of  boun. 
darary.  Boundary  is  and  always  has  been  a  vex- 
ed question.  The  division  of  the  world  into  na- 
tions and  of  our  country  into  tracts  of  land  and 
farms,  has  given  rise  to  many  difficulties,  but 
these  do  not,  on  the  whole,  materially  diminish 
its  advantages.  Every  earthly  good  is  alloyed  by 
some  portion  of  evil  which  constitutes  its  draw- 
bac^k  and  it  is  the  chief  office  of  philosophy  to  in- 
struct us  what  good  will  compensate  the  evil  we 
must  bear  with  it.  I  think  my  friend  has  declaim- 
ed against  the  evil  without  allowing  himself  to 
look  at  the  good  beside  which,  it  is  inconsiderable 
indeed.  Some  divisions  of  your  judicial  business 
it  is  conceded  must  be  made.  Rest  assured  none 
will  ever  be  too  broad  for  ignorance  to  confound, 
and  weakness  to  misinterpret,  nor  any  too  sharp 
and  fine  for  the  ingenious  and  discriminating  fully 
to  understand  and  observe.  But,  sir,  if  we  could 
commit  so  great  an  error  as  to  reason  solely  from 
the  evils  ot  a  division  between  law  and  equity,  it 
would  prove  nothing  for  the  purpose  the  honorable 
gentleman  has  used  it.  It  is  as  good  an  argument 


623 


to  justify  the  merging  of  the  law  into  the  equity 
courts  as  the  converse.     I  only    mention   this  t 
aiiovv  how   slippery   a   tooting  it  rests   on.     The 
strong  answer  to  ii  is  to  be  found  in  tne  nature  ol 
the  boundary  of  which  the   honorable  gentleman 
.token.     It  is  not  as  he  supposes,  an  arbitrary 
division — it  is  not  dependent  upon  the  will  of  the 
judges — it  is  not  to  be  built  up  and  pulled  down  at 
the  pleasure  of  the  legislature— it  lies  deep  in  the 
nature  of  wrongs  and  of  remedies.     You  may,    if 
•lease,  give  up  the  advantages  which   result 
frmn  a  division  of  business — you  may  impair  botn 
systems  by  an  inharmonious  union,  but  neverthe- 
less you  cannot  wholly  escape   the  consequences 
of  the  natural  division  to  which  I   have  alluded. 
J[t  cannot  be  doubted — no  man  is  so   visionary   as 
to  question  that  different  forms  will  be  requisite 
to  attain  the  different  objects  of  law   and   equity 
pursuit.     Even  the  present  forms  of  pleading  are 
not  wholly  without  meaning,  as   gentlemen  have 
seemed  to  suppose.     It  is  true,  they  do  not  often 
express  their  true  signification  in  language  intel- 
ligible to  the  inexperienced,  but  they  are  in  their 
actual  sense  applicable  to  the  case,  and  calculat- 
ed to  work  out  the  remedy.     The  use  of  peculiar 
forms  and  the  necessities  of  particular  cases  will 
unavoidably  originate  a  difference  of  practice. — 
Here  then  arises  the  division  of  which  I  speak. — 
I  am  satisfied  that  form  and  practice  will  not  be 
adhered  to  with  less  tenacity  than  heretofore,  and 
here  the  division  is  widened  and  perpetuated. — 
If  law  remedies  are  applied  to  equity  cases  or  the 
converse,  embarrassment  must   be  felt   and    tha 
we  cannot  possibly  guard  against.     I  will   allude 
now,  to  the  only  case  my  honorable  colleague  put 
as  an  illustration,  of  the  enquiry  which  this  con- 
fusion of  boundary  may   occasion.     I    would   not 
do  this,  but  I  thought  the  case  made  a  visible  im- 
pression upon  the  members  of  this  body,   as   in- 
dividual cases  of  hardship  always  do.     A   debtor 
had  signed  a  submission    to  arbitrators,   and  an 
award  had  been  made  against  him  for  $300,  more 
than  the  amout  due.    Upon  this  erroneous  award 
a    judgment     was    entered,    which    the   credi- 
tor refused  to  cancel  except  on  payment  of  the 
whole  amount.     The    debtor,    says  my   learned 
friend,  made  an  application  to  the  Supreme  Court 
to  set  aside  the  judgment,  but   that   tribunal   did 
not  conceive  it  had  authority  to   do   so,   because 
there  was  no  subscribing  witness  to  the   submis- 
sion or  to   the  award.     The    debtor  flew  to   the 
Court  of  Chancery,  but  he  procured  no  relief. — 
That  court  also  doubted  its  jurisdiction,  but  decid- 
ed that  there  was  a  complete  remedy  upon  applica- 
tion to  the  Supreme   Court.     The   consequences 
stated  were  lamentable — the   unfortunate   debtor 
was  forced  to  pay  $600  as  the  costs  of  his   appli- 
cations beside  the  whole  amount  of  the  award. — 
Sir,  this  case  appeals  strongly  to  our  sense  of  jus- 
tice, but  I  am  obliged  to  touch  it  with  an  answer 
that  utterly  destroys  its  illusion.     It  never  could, 
have  happened.  By  the  statute  the  award  musthave 
an  attesting  witness,  and  upon  the  submission  be- 
ing proved  by  the  affidavit  of  the  subscribing  wit- 
ness thereto,  aud  upon  the  award  made  in  pursu- 
ance thereof,  being  proved  in  like  manner,  or  by 
the  aliidavit  of  the   arbitrators,    the    Court   shall 
confirm  sucli  award.       JN'ow  sir,  if  there  was  not 
the  attesting  witness  or  the  evidence  of  the  sub- 
mission required  by  the   Statute  it  would   never 


have  been  confirmed  and  no  application  could 
ever   have  been  necessary  to  set  aside   a  confir- 
mation that  did  not  exist.     But  on  the  other  hand 
if  the  attesting  witness  signed  and  the  submission 
and  award  were  regularly  made,  then  the   appli- 
cation might  have  been  entertained   by   the   Su- 
preme Court.     I  leave   my   friend  to   reconcile 
this  difficulty,  or  rather,  I  give  him  a  free  election 
to  impale   himself  upon  either  horn  of,  this   for- 
midable dilemma.     If  however,  the  court  of  equi- 
ty to  which  the  unfortunate  debtor   applied,  had 
been  merged  into  a  court  of  law,  would  he   have 
been  any  better  off?     Certainly  not,  for  as  the  a- 
ward  did  not  conform  to  the   Statute,  the  court 
would  not  have  had  jurisdiction   and   the   party 
would  have  been  equally  remediless.     I  may  go 
therefore,  the  length  of  admitting   an   impossi- 
ble case,  and  yet  nothing  is  proved  in  favor  of  a 
union  of  these  two  great  judicial  departments. — 
Of  all  sciences  that  of  law  ought  to  act  by    plain, 
simple,  and  well  established  rules,  becaus^  it  in- 
volves all  the  rights  that  are  recognized  in  civilized 
society — the  rights  pertaining  to  property,  to  per- 
sonal security,  to  character,  to   the   domestic   re- 
lations, and  to  life.     Such  rules,  as  I  have  before 
suggested,  by   their  generality   must  frequently 
Work  injustice,  and  this  it  is  the   high    function 
of  a  court  of  equity  to  alleviate  by  known  and  fix- 
ed maxims,  with  exact  reference  to  the   peculiar 
circumstances    of   each    case.       This     tribunal 
wears    rather    the  aspect  of  an    enlarged    arbi- 
tration.     It  is    capable    easily    to  hear  a  great 
number  of  parties,  in  the  same  suit,  and  it  can  en- 
force its  decrees   by  a  vast  number  of  means  un- 
known  to  the  common  law.     It  binds   none  but 
parties,and  these  it  binds  by  a  judicial  settlement 
of  every  separate,  individual  interest,  by  the  pe-\ 
culiar  circumstances  applicable    to  that  interest.! 
It  is  true  these  suits  are  often  longer  than  neces-i 
sity  demands;  but  when  they  are  determined,  they' 
determine  in  the  same  litigation  a  great  variety  of 
nice  and  refined  questions  which  could  not  have 
been  settled  so  easily  in  any   other  way.     Look, 
sir,  at  the  statute  of  Uses,  how  delicate  and  ab- 
struse the  questions  that  may  arise — how  numer- 
ous the  parties — and  how  important  in  a  pecuni- 
ary view,  the  result.     Look  at  the  cases  of  trusts, 
involving  the  interests  of  two  clases  of  the  com- 
munity, whom  it  is  our  duty  as  well  as  our  dear- 
est wish  to  protect.     I    mean  infents_.an.d..married 
women.     The  cases  are  too  numerous  to  be  brief- 
ly stated  in  which   peculiar   remedies  must  be 
sought  by  peculiar  means   entirely   at  variance 
with  any  forms  of  practice  or  procedure  that  can 
be  advantageously  resorted  to  at  the  common  law. 
Sir,  two  instances  have   been  mentioned  to  show 
with  what  facility  the  courts  of  law  can  adminis- 
ter the  principles  of  equity — partition   and  ac- 
count.    It  was  a  favorite  object  of  the   revisers  of 
our  Statutes  to  simplify  these  two  actions  and  ren- 
der them  easy  law  remedies ;  but,  sir,  I  think  they 
failed  in  both  these  objects.     I  appeal  to  the  gen- 
tlemen who  have  used  that  argument  (Mr.  NICOLL, 
and  Mr.  BROWN)  to  answer  whether  partition  is 
not  in  nine  cases  out  of  ten  brought  in  a  court  of 
equity.     In  my  experience  the  proportion  is  much 
greater  than  this.     I   know   a  partition  suit  in  a 
court  of  law  in  New-York  to   be  a  very  rare  pro- 
ceeding, arid  I  suppose  it  to  be  equally  so  in  the 
other  parts  of  the  State.     Of  the  action  of  account 


624 


there   have   not  been  twelve  cases   in  a  court 
law  in  the  state  since  the  Revised  Statutes.     Th 
proceeding  has  been  altogether  too  embarrassin 
and  in  its  results  altogether  too  disastrous.     I  ne 
ver  heard  of  more  than  one  such  case  in  this  stat 
that  was  brought  to  a  conclusion,  and  that   wa 
expedited  by  the  ignorance  rather  than  by  the  in 
genuity  of  counsel — the  plaintiff  failed  by  demur 
rer   and  made  wise  by  defeat,   never  trusted  s 
treacherous  a  remedy  again.     Within  a  few  year 
the  present  Chief  Justice,   upon  deciding  one  o 
these  cases,  told  the  plaintiff,  who  failed  in  the 
technical  part  of  his  remedy,  that  he  should  hav 
gone  to  a  court  of  equity,  the  machinery  of  whic] 
was  so  much  better  calculated  to  explore  the  la 
barynths  of  an  intricate  transaction-.     Sir,   even 
in  Pennsylvania,  where  this  action  has  been  fos 
tered,  because  its  equity  was  desired,  it  has  been 
found  ponderous  and  unmanageable   and  such  i; 
the  testimony   of  the  bench  and   the  bar  of  tha 
State.  *  Glance  at  Massachusetts.     The  want  of  a 
complete  equity  judicature  has  been  lamented  b) 
her  judges.     But  the  gentleman  from  Chautau 
que  (Mr.  MARVIN,)  has  alluded  to  this.     Glance 
at  Pennsylvania.     In  no  place  has  the   privation 
of  any  equity  system  been  more  sensibly  felt  or 
more  deeply  regretted.     All  sorts  of  shifts,  arti- 
fices, and  deVices  which  lawyers  and  judges  coulc 
devise,  were  resorted  to,   to  patch   and  frame  up 
some  substitute   for  an  equity  System.     The  hon- 
orable gentleman  from   Chautauque,  (Mr.  MAR- 
VIN,) told  us  that  in   an  action  for  specific  per- 
formance of  a  contract  for  the  sale  of  lands,  inas- 
much as  the  courts  had  no  power  to   decree  such 
a  performance,  they  were  compelled  to  direct  the 
jury  to  find  two   or  three  times   the  value  of  the 
land  in  order  to  drive  the  defendant  to  convey  il 
rather  than  pay  the  amount  of  so  onerous  a  judg- 
ment.    I   thought   the  Convention  was   forcibly 
impressed  with  the  absurdity  of  this  proceeding, 
and  my  respected  colleague  (Mr.  NICOLL,)  felt  it 
weigh  so  heavily  upon  his  argument  that  he  was 
forced  to  suggest  a  remedy  that  might  be  applied 
consistentlywith  the  extinction  of  a  separate  equi- 
ty jurisdiction.     The  Legislature,  said  he,  should 
have  passed  a  law  granting  authority  to  the  courts 
to  decree  specific  performance.     Sir,  the  answer 
is  apparent — supposing  they  had  done  so — a  sin- 
gle instance  would   have   been  corrected  and  no 
more.     And  when  the  Legislature  with  long  la- 
bor and  continued  attention  shall   have  remedied 
all  the  instances  by  statute,  then  this  consequence 
utterly  repugnant  to  the  gentleman's  views,  will 
have   happened.     They  will  have  established  a 
complete  equity  system.     But,  sir,  what  has  been 
the  conduct  of  that  state  ?     The   people  pressed 
down   beneath   the   unavoidable   inflexibility  of 
their  law  system,   have,   like  wise  men,  imitated 
the   enlarged  principles   of  that  jurisprudence, 
which  has  been  an  honor  to  our  State,  which  has 
made   her  respected   far    and    near,  which  has 
given  her   recorded   decisions   the    authority  of 
law.     They  have  established  an  equity  system — 
not  so    comprehensive    as    desirable,   but   still 
obviating  many  existing  evils.     Much  has  been 
said  in  this  discussion  against  the  forms  of  pro- 
ceeding in  equity,  and  gentlemen  have  assumed 
the    abolition  of   the   court,    to   be   the   easiest 
way  to   get  rid   of   the   forms.     Certainly   that 
would  achieve  the  object  and  in  a  summary  way. 


You  can  abolish  your  ponderous  law  forms  by  the 
same  process.     So  you  can  cure  the  headache  by 
taking  off  the  head.     Does  it  follow  however  that 
this  is  the   best  mode  ?     In  my  judgment  no  part 
of  your  judicature  requires  closer  attention  of  the 
legislature  than  the  forms  of  proceeding,  but  in 
the  main  I  am  inclined  to  think  they  will  bend  to 
the  remedy  sought  or  rather  such  forms  only  will 
be   used  as  may  be  appropriate   to  the   remedy. 
It  may  be   readily  answered  that  they  have  be- 
come cumbersome  and  expensive.     This  is  unfor- 
tunately too  true  but  in  a  few  excepted  instances, 
this  is  not  the  consequence  of  the  rules  of  plead- 
ing.    No,  it  is  the  result  of  some  other  element 
that  you   have  let  into  the  system      A   bill  in 
equity  has  been  called  a  thrice-told  tale.     Can  it 
be  otherwise,  so  long  as  the  folio  system  exists, 
unchecked  by  the  careful  supervision  of  the  tax- 
ing officer.     No,  sir,  your  taxing  officers  must  be 
rigid— what  is  superfluous  must  be  struck  out — 
and  then  you  may  be  confident  that  a  bill  in  equity 
will  become  what  it  was  designed  to  be,  "  a  plain 
unvarnished  tale."     Examinations  in  equity  suits 
are  wonderfully  tedious  and  expensive.     Abolish 
the  office  of  examiner  and  substitute  oral  exami- 
nations to  be  heard  before  the  equity  judge  as  in 
a  trial  of  law.     If  you  would  take  a  step  in  law 
3leading   that  shall   leave   a  favorable  impress 
jpon  the  whole  system,  abolish  the  general  issue, 
that  common  refuge   of  indolent  and   ignorant 
men.     England  has  taken  a  step   in  this  respect 
n   every  way  worthy   our   imitation.     My   col- 
eague  to  whom  I  have  before   alluded  (Mr.  Ni- 
COLL)  regrets  that  so  much  of  the  subtle  dialec- 
ics  of  the  schoolmen  have  been  infused  into  our 
system  of  pleading.     Sir,  I  differ  with  him  there 
as  upon  almost  every  other  point.     The  great  evil 
of  that  system  is  that  we  have  departed  from  spe- 
cial pleading.     I  know  gentlemen  regard  special 
)leading  with  a  vague  and   undefined  horror  as 
lie  awful  instrument  that  has  severed  the  thread 
>f  so  many  just  suits.     I  hope  to  live  to  see  form 
n  pleading  disregarded  by  the  courts.     I  hope  to 
ive  to  see  every  plaintiff  state  in  plain  and  dis- 
inct  terms  the  substance  of  his  action  and  the  de- 
endants  reply  the  very  subject  matter  of  his  de- 
ence.     I   would  like  to   see   the  truth  told  on 
aper    in   our  law  suits,    and  then   we  should 
enow  .what  we    are   about.     There    would    be 
10  new   trials   upon   the  ground  of  surprise. — 
"his  is  what  I  have  been  taught  to  consider  the 
ommon  law  system  of  special  pleading,  and  this 
hope  to  see  restored  to  the  frank  and  manly  sim- 
ilicity  that  pervaded  it,  before  it  was  so  wofully 
eclouded.     But  we  cannot  cure  that  evil  here — 
ur  time  is  too  short,  and  we  have  other  weighty 
natters  on  our  hands.     Indeed,  it  would  not  be  a 
afe  experiment  for  us   to   attempt.     Our  forms 
must  bend  to  our  wants.     This  I  deeply   regret, 
ut  it  is  unavoidable.     No,  sir,  it  is  reserved  for 
ome  favored  band  in  the  legislature  to  work  out 
lis  herculean  task,  and  thus  to  do  more  for  the 
welfare   of  unfortunate   litigants   than   has  been 
one  before  in  the  history  of  our  State.     Rest  as- 
ured  it  will  be  done.     The  attention  of  the  peo- 
le  is  turned   in   that  direction;    they  will  never 
e  satisfied  till  it  is  achieved.     An  argument  has 
een  made   in  favor  of  blending   the  jurisdiction 
:' these  courts  from  the  transfer  of  equity  juns- 
iction  to  courts  of  law.     One  of  my  colleagues 


625 


(Mr.  NICOLL,)  says  "  they  have  already  become 
ee,  commingled."    Then,  I  ask,  d( 
to  do   what  has   already  heen  done  ? — 
Bur   that  is   not  true  in  point  of  fact.     Thougl 
courts  of  law  now  issue  commissions  and  take  tes- 
Dioiiy  in  rei  memoriam  perpetuam;  though 
can    enforce    a    discovery    of   books   anc 
papers;    though    in    many    cases  of  fraud  they 
jurisdiction — the   great,  leading   pecu- 
f'.'utures    of    equity    justice    will     remain 
:olure.     1    am   willing   to    agree   with   gen- 
tlemen up  to  a  certain  point,  and   then  we   must 
separate.     Wherever  equity  jurisdiction  is  auxil- 
iary to  that  of  law,  then  I  would  clothe  the   law 
h  every  necessary   equity   power.     Foi 
instance,  I  would  give  him   authority  to  compel 
a  discovery  in  aid  of  a  suit  at  law,  or  upon  a  cre- 
ditors hill;  but  that  great,   peculia/,  substantial 
equity  jurisdiction,  which  never  can  involve  any 
matter  of  purely  legal  litigation,  I  would  keep  as 
-entirely  separate  and  distinct,  as   our   forefathers 
have  made  it.     Sir,  I  come  now  to  a  second  lead- 
ing objection  to  the  majority  report.     There   are 
not  judges  enough  to  do  the  labor  cast  upon  them. 
Four  out  of  the  32  judges  must  sit  in  the  court  of 
appeals.     They  will  be  fully  occupied  with   that 
business,  for  it  will  be  most  laborious  in   all  its 
.branches.     It  is  not  the  sessions  of  the  court  alone 
that  will  consume  their  time,  but  the   examina- 
tion of  great  bodies  of  authority  upon   the   ques- 
tions that  must  come  before  them.     You  have 
fthen  eight  and  twenty  left  to  do  the  duties  of  your 
'  present  chancery  circuit  and  common  pleas  courts 
— to  hear  certioraris  to  justices  and  to  all   other 
oiliccrs  ;  to  hear  all  special  proceedings,  such  as 
prohibition,    procendo,    mandamus    and    infor- 
mations, and  to  encounter  that  resistless   tide   of 
business — arguments   in   error   and  in   bane,   in 
law  and  equity.     Sir,  is  it  for  a  moment  believed 
that  they  will  be   capable  to  perform   this  great 
task  ?     Ana  if  they  can  with  vast  industry  accom- 
plish it  ?     Is  this  a  system  to  expand  with  your 
wants  and  meet  your  growing  necessities  ?     Are 
thirty^^wojasn  to  do  tne  duties  of  over  three  hun- 
dred, wEo"  are  employed   under  your  present  sys- 
tem :     I  will  not  lor  a  moment  argue  this  to  those 
who  known   anything  of  the   magnitude  of  the 
work  to  be  done.     But,  I  may  be  answered,  that 
the  legislature  can  increase  this  number  of  judges 
or  create  other  courts.     Sir,  to  this  I  should  say, 
I  want  a  judicial   system  that  will  stand  of  itself, 
that  is  adequate  to  do  the  duties  required  of  it,  at 
least  at  the  moment  it  is  put  in  operation.    I  do  not 
desire  that  we  shall  commence  such  a  system,  and 
leave  the    legislature    to    complete    it.     There 
would  be  less  danger,  and  greater  prospect  of  har- 
mony, in  leaving  it  to  them  altogether.     No,  sir, 
Let   us   construct  a  system  lhat  shall  answer  our 
present   wants,  and   give~-to    the   Legislature  ihe 
nexessary  power  ip  expand   it,  as  those  wants  in- 
crten*;.    My  next  leading  objectron  to  tfTe'plan  of 
the  coin mitiee,  is,  that  one-tenth  part  of  the  judges 
are  authorized  to  hold  general  tenns,  and  from  the 
structure  ot  the  court  a  larger   number  cannot  of- 
ten  sit   for  this  purpose.       We  cannot  then  have 
the  judgment  of  the  whole  court  upon  any  matter. 
j   You  have  a  seiies  <,t  hide  courts,  vvondei  lully  like 
a  number  uf  large  justices'  courts,  who  determine, 
arid  whose  judgment  in  the  nature  of  things  must 
often  be  conflicting.  Your  court  of  appeals  becomes 


an  arena  for  the  settlement  of  these  differences, 
and  the  lour  judges  you  send  iriio  it  from  the  su- 
preme court,  are  already,  by  the  ties  of  friendship 
or  by  pride  of  exprt  s>ed  opinion,  turned  into  par~ 
tizans  in  the  most  sacred  leces-ts  ot  the  judicial 
sanctuary.  Sir,  we  ought  to  elevate  the  character 
ot  our  courts.  The  judicial  Tinine  is  never  tco 
pure  nor  too  much  respected.  This  is  the  way 
fatally  to  depress  it.  Weare  tau^hi  wisdom  from 
tlie  decisions  of  the  higher  tribunals  The  judges 
ought  to  be  wise  and  pure  men,  and  their  opinions 
ought  to  be  entitled  to  profound  respect.  We  look 
to  the  supreme  court  for  a  lart.',e  bodv  ol  decis-ions 
that  are  worthy  to  be  followed.  The  court  of  ap- 
peals will  riot  decide  upon  all  classes  of  questions 
until  many  years  shall  have  run  away.  And  as 
years  run  away  decisions  he-come  inapplicable  — 
1  he  great  leading  principles  of  the  common  law 
have  been  settled,  not  in  cases  involving  large 
amounts,  but  in  those  which  arose  upon  ordinary 
occasions.  That  is  the  cl:iss  ol  cases  to  which 
your  law  is  peculiarly  applicable,  and  to  do  justice 
in  which  it  is  peculiarly  descried.  The  decisions 
of  the  Supreme  court  will  riot  he  worth  a  rush, 
if  the  report  of  the  majority  of  the  committee  is 
adopted.  The  last  objection  that  1  shall  urge  to 
(his  report,  is  one  peculiar  to  the  city  1  partly  re- 
present. Our  judicial  business  is  large,  much  lai- 
ger  in  proportion  than  that  <>f  any  other  p,irt  of 
the  Stare.  We  employ  one  Vice  Chancellor  ;.m! 
one  Assistant  Vice  Chancellor,  whose  duties  are 
f  the  most  laborious  description;  one  Circuit 
Judge,  one  Recorder,  three  Judges  of  I  he  Superior 
Court,  and  three  Judges  of  the  Common  Fleas, 
who,  without  any  figure  of  speech,  i/iny  be  said  to  -it 
perpetually.  Indeed  they  are  already  loaded  wiili 
susiness  to  the  full  limit  of  human  health  to  bear. 
Yet  this  force  was  found  unable  to  do  the  business, 
and  we  were  compelled  to  apply  to  the  legisla- 
te to  give  the  Superior  Court  and  Common 
Pleas,  the  right  to  hold  double  sessions  —  to  try 
two  causes  in  different  chambers  at  the  same  time 
—and  even  this  temporary  alleviation  is  rapidly 
jecoming  inadequate  to  our  necessities.  The 
committee  have  substituted  for  this  large  judicial 
ibrce,  four  judges  —  yes,  four  judges  !  —  1  need  say 
no  more.  The  fact  is  its  own  most  severe  and 
unanswerable  commentary.  But  I  hear  gentlemen 
say  the  legislature  can  create  additional  judges  — 
Yes,  they  can  complete  what  we  have  left  incom- 
jlete  —  they  can  finish  the  system.  But,  sir,  I 
lave  answered  this  suggestion  before.  And  I  will 
say  more  in  behalf  of  the  great  interests  for  which 
speak  upon  this  floor  —  I  will  say,  sir,  that  no 
Dlan  is  worthy  of  our  support  which  does  riot  ex- 
end  to  those  judges  whose  servicej^&^liaJJl  re- 


quire spjongas  wejEejaaJEg.  any  thing,  a  oj^sttu- 
1  office.  I  will  not.  put  them  aV  Ihe 
mercy  ojveak  or  venal  legislature.  I  will  not 
rust  them  in  the  hands  of  that  body,  any  more 
han  the  necessity  of  the  case  compels  me  —  they 
ihall  not  be  liable  to  be  turned  adrift  at  any  mo- 
ment or  upon  any  impulse  —  they  shall  no*t  feel 
hat  they  are  insecure  in  their  seals.  JNTo  sir,  they 
hall  possess  the  independence,  and  strength  of 
)osition  that  will  enable  them  to  resist  thelegis- 
ature  when  it  encroaches  upon  the  rights  of  the 
)eople.  Without  this  we  are  not  safe.  Sir,  I 
will  now  briefly  state  my  own  plan  for  a  judiciary. 
T  shall  urge  no  reasons  for  its  adoption—  ner  do  I 

53 


626 


know  that  I  shall  formally  bring  it  before  this  bo- 
dy. That  plan  I  would  present  as  a  combination 
of  the  views  of  members,  and  worthy  to  be  called 
a  compromise.  I  would  have  the  highest  tribu- 
nal a  Court  of  Appeals,  organized  separately  from 
|  every  other  tribunal.  I  would  be  satisfied  if  it 
'  were  arranged  in  other  respects  upon  the  general 
features  of  almost  any  plan  that  has  been  sub- 
mitted. I  would  next  in  gradation  establish  a 
Supreme  Court  to  consist  of  as  many  judges  as 
•7  might  be  required  and  who  should  hold  Circuits, 
/  and  sit  in  bane  and  upon  appeal  from  the  Com 
''I  mon  Pleas.  I  would  have  a  separate  Equi 
ty  tribunal,  or  if  gentlemen  like  it  better, 
I  would  have  the  Supreme  Court  divided, 
so  that  some  of  the  judges  should  hear  Equity 
causes  and  no  other.  Next  in  gradation,  I  would 
place  the  courts  of  common  pleas  organized  in 
districts — say  sixteen  for  this  State,  to  be  formed 
by  the  Legislature.  One  judge  should  be  ap- 
pointed for  each  district,  and  in  the  more  popu- 
lous, such  additional  judges  as  might  be  necessa- 
ry. These  Judges  should  hold  circuits  in  each 
county  as  often  as  business  might  require.  In  those 
parts  of  the  State  where  the  business  would  ad- 
mit of  it  law  and  equity  powers  might  be  blend- 
ed. I  would  give  them  the  power  of  holding 
general  sessions  and  of  trying  all  criminal  cases 
subject  to  the  right  of  appeal.  Below  these  I 
would  place  as  many  justices'  courts  as  necessary, 
giving  the  appeal  from  those  courts  to  the  com- 
"  nnon  pleas — disminishing  the  number  of  justices 
and  enlarging  their  jurisdiction.  I  would  re- 
tain the  Surrogates'  and  such  local  courts  of 
law  and  equity,  as  the  necessities  of  the 
city  and  county  of  New  York  might  require. 
1  would  give  bin  one  appeal  in  any  case — an  ap. 
peal  t'rurn  the  justices  to  the  common  pleas — from 
the  common  pleas  to  the  Supieme  Court  and 
Irom  I  he  Supreme  Court  to  the  Court  of  Appeals. 
The  judgment  on  appeal  should  be  final  except 
perhaps  where  the  appellate  cou'rt  disagreed  with 
the  judgment  of  the  inferior  tribunal.  I  would 
prive  the  Supreme  Court  of  original  jurisdic- 
n in  actions  on  contract  where  the  amount  should 
below  a  certain  specified  sum,  and  I  would  es- 
tablish the  same  rule  with  reference  to  the  com- 
mon pleas.  Sir,  this_iyould  elevate  the  character 
of  the  judiciary.  The  dignity ~oT~every  court 
would  oe  heightened,  and  judges  of  ability  com- 
mensurate to  these-sfcH-ionv.wjQuld  De  chosen. — 
The  common  pleas  would  take  by  far  the  greater 
proportion  of  the  business  and  the  pressure  in  the 
higher  courts  would  be  relieved  and  avoided. — 
This  machinery  is  simple — it  is  not  liable  to  de- 
rangement, and  it  admits  of  an  extension  of  your 
courts  upon  a  regular  system  with  your  business 
Sir,  in  conclusion,  let  me  hope  that  we  shall  com- 
plete the  great  work  before  us  in  a  spirit  of  har- 
mony arid  compiomise,  that  will  unite  the  sup. 
port  of  every  candid  and  considerate  mind.  The 
people  have  the  deepest  interest  in  this  part  of 
our  deliberations,  and  God  forbid  that  we  should 
present  to  their  view  a  hesitating  and  divided 
house.  I  am  free  from  pride  of  opinion  on  this 
subject — but  I  most  fervently  desire  a  great  result 
—a  system  not  liable  to  be  shaken  by  the  will  of 
the  Legislature,  but  one  that  will  remain  a  broad 
platform  on  which  those  rights  of  the  people  that 
are  enforced  in  the  public  tribunals,  may  stand 


unshaken  tor  generation*  and  generations  after  we 
shall  have  ceased  to  enjoy  the  blessings  or  parti- 
cipate HI  the  glories  of  fret1  er<  vernu  ent. 

Mr.  J.J.TAYLOR,  said  he  did  not  rise  to  discuss 
fully  the  great  and  important  subject  that  was 
then  before  the  committee.  After  the  very  able 
and  elaborate  manner  in  which  it  had  been  treat- 
ed by  several  of  the  eminent  legal  gentlemen  up- 
on this  floor,  it  would  ill  become  him  to  do  so. — 
But  the  subject  is  one  of  vital  interest  to  the  peo- 
ple of  this  great  state,  one  to  which  we  should 
each  and  all  of  us,  with  honest  hearts,  bring  our 
best  efforts.  He  purposed  therefore,  in  offering 
a  slight  amendment  to  the  section  of  the  majority 
report,  more  immediately  under  consideration, 
to  make  a  few  general  remarks. 

It  has  been  well  remarked  (continued  Mr.  TAY- 
LOR) in  the  course  of  this  debate,  that  if  we  would 
cure  existing"  evils,  we  must  first  enquire  what 
those  evils  are,  and  whence  they  originate.  The 
present  judiciary  system  was  admitted  on  all 
hands,  to  be  extremely  defective.  In  its  prac- 
tical workings,  it  does  not  answer  the  purpose 
for  which  it  was  designed.  We  must  then  en- 
quire what  its  defects  are,  if  we  would  remedy 
them.  jOne  great  evil  to  be  remedied  is  the  ac- 
'cumuTation  of  business  in  the  higher  courts,  and 
cases  consequent  upon  this  the  delay  and  expense  at- 
tending the  decision  of  causes.  The  supreme 
court  and  the  court  of  chancery,  have  had  thrown 
upon  them  a  mass  of  business  for  many  years  past, 
which  no  learning,  no  capacity,  no  industry  on 
the  part  of  the  judges  of  those  courts,  could  dis- 
pose of.  This  evil'has  at  length  become  so  great 
that  the  delays  of  justice  in  these  courts,  amount 
not  only  to  a  denial  of  it,  but  in  many  instances 
to  something  worse.  The  plain,  obvious  remedy 
for  this  delay,  is  to  increase  the  judicial  force, 
and  to  make  it  enough  to  discharge  all  this  im- 
mense mass  of  business.  This  most  obvious 
remedy,  the  committee  have  attempted  to  apply 
and  as  it  seems  to  me,  successfully.  But  an- 
other remedy  is,  to  improve  and  elevate  the  char- 
acter of  the  inferior  tribunals,  and  this  remedy, 
in  my  poor  judgment,  has  not  been  sufficiently 
adverted  to,  either  in  the  discussions  which  have 
been  carried  on  in  the  community  generally,  or 
which  have  been  had  on  this  floor.  Having  been 
more  familiar  with  these  tribunals,  the  courts 
within  the  counties,  and  with  their  practical 
workings,  than  most  gentlemen  who  have  addess- 
ed  the  committee,  and  whose  business  has  been 
more  in  the  higher  courts,  I  may  be  permitted  to 
point  out  some  of  their  defects,  which  have  fal- 
len under  my  observation,  and  to  suggest  such 
remedies  as  may  occur  to  me.  Our  justices'  courts 
are  far  from  being  what  courts  of  justice,  or  even 
the  lowest  grade,  should  be.  In  saying  this,  sir, 
I  must  not  be  understood  as  complaining  of  the 
magistrates  who  hold  these  courts.  They  are  all 
that  we  can  expect  them  to  bef under  the  system. 
With  four  justices  toj>e  elected  in  each  town, 
however  small,  and  with  the  little  inducement 
which  exists  for  men  to  take  the  office,  or  v 
they  have  it,  to  qualify  themselves  for  the  dis- 
charge of  its  duties,  what  more  can  we  expect  of 
them?  With  a  view  to  remedy  this  evil  as  far  as  we 
may,  I  incline  strongly  to  the  adoption  of  the  s 

estion  of   the    gentleman  from   Monroe,    (Mr. 

TRONG)  to  reduce  somewhat  the  number  of  jus- 


627 


bees.     One  should  probably  be   elected   in  each 
Q,  whatever   may   be    its  size.     All   beyond 

iniiiht  be  made  to  depend  upon  the   popula- 
tion of  the  town,  fixing  such  a  ratio  as  considera- 
i- 1  reduce  the  present  number,   and   limiting 
the  number  in  the  other   direction,    so  that   no 
should  have  more  than  a  given   number — 

our.     This  would  make  the  office   more  de- 
sirable, /both    upon    pecuniary    considerations, 
«.n\ji8/a   post    of    honor    and    distinction — and 
[would  probably,   therefore,    draw  to    it    better 
'May  we  not  hope  it  would  tend 

:«.  lesson  tlu-  large  amount  of  petty  litigation 
with  which  our  state  is  afflicted?  That  litigation, 
permit:  me  to  say,  Mr.  Chairman,  is  no  trifling 
v-vil ;  and  Jet  me  say,  too,  that  the  expenses  of  li- 

ion  in  justices'  courts  are  by  no  means  small, 
especially  in  comparison  to  the  amounts  in  con- 
troversy. Why,  sir,  since  the  practice  has  been 
introduced  here,  I  may  be  allowed  to  mention  an 

nee  which  occurred  in  my  own  county, 
with  ii)  the  last  two  years.  1  do  so  not  because  I 
think  it  establishes  any  general  rule  or  principle, 
but  it  amounts  to  as  much  as  the  cases  which 
have  been  cited  as  occurring  in  higher  ;  it  is  this: 
Two  neighbors  differed,  honestly,  I  believe,  about 
the  ownership  of  a  pair  of  yearling  calves,  wrorth 

iier,  perhaps,  ten  dollars.  They  went  to 
Juw  about  it,  before  a  justice  of  the  peace — and 
juries  disagreeing,  they  kept  at  law  about  it,  all 
the  time  before  a  justice  of  the  peace,  till  they 
had  expended  in  the  litigation  about  three  hun- 
dred dollars  each,  and  then,  not  having  been  able 
to  get  a  verdict,  they  settled  the  matter  amicably 
between  themselves,  and  that  too,  without  the 
aid  of  a  "  court  of  conciliation."  This  statement 
I  have  from  a  magistrate  before  whom  the  cause 
was  tried. 

But  there  is  another  evil  existing  in  the  justi- 
ces' courts,  greater,  perhaps,  than  all  the  rest,  and 
for  which  I  ..m  n-jt  prepared  to  suggest  a  remedy. 
I  mention  it  mainly  in  the  hope  that  ssme  gentle- 
man of  more  ingenuity  than  myself,  may  suggest 
one.  It  is  the  bias  that  is  likely  to  affect  the 
mind  of  the  justice  from  the  fact,  that  while  he 
is  the  judge,  he  is  also  to  some  extent  the  minis- 
terial officer  of  the  court,  issuing  its  process  and 
receiving  fees  and  perquisites  for  his  services. — 
This  Convention  will,  with  entire  unanimity,  I 
do  not  doubt,  take  from  all  higher  judicial  officers 
the  right  to  receive  any  fees  or  perquisites  of  of- 
fice, and  have  them  paid  entirely  by  fixed  salaries, 
-hail  no  longer  suffer  the  judicial  ermine  to 
be  soiled  and  tarnished  by  these  unseemingly 
pickings.  I  most  heartily  approve  of  this  reform. 
It  will  do  much  good.  Had  it  been  introduced 
only  so  far  as  to  require  taxing  officers  to  tax  costs 
without  fee  or  reward,  as  was  proposed  by  an 
honorable  senator  in  another  hall  of  this  building 

•  ti-s  ago,  it  would  have  prevented  to  a  very 

i.-xtent,  cases  of  over  taxation,  and  would 
have  saved  us,  particularly,  of  the  legal  profes- 
tion,  much  of  the  reproach  we  have  had  to  en- 
counter. But  the  time  has  come  to  go  farther, 
and  extend  this  principle  to  all  fees  and  perqui- 
sites. Would  that  it  could  be  extended  to  justi- 
ces of  the  peace.  I  have  no  distrust  of  justices 
over  other  men  and  other  officers.  I  know  of  no 
reason  for  speaking  disparagingly  of  them.  But 
they  are  men,  subject  to  be  influenced  like  other 


men.  Let  us  look  a  moment  at  the  influences 
which  are  brought  to  bear  upon  them.  The 
plaintiff  goes  to  the  justice  with  his  complaint 
against  his  neighbor.  If  the  justice  will  listen 
to  him,  he  will  surely  tell  him  his  side  of  the 
proposed  litigation.  Add  to  that,  that  he  is 
bringing  to  the  justice  a  job  for  which  he  is  to  re- 
ceive fees,  out  of  which  he  is  to  make  money, — 
Perhaps  he  is  in  the  habit  of  bringing  him  busi- 
ness to  I  he  amount  of  hundreds  ot  dollars  in  a 
year-  He  is  to  that  extent,  his  patron.  Is  the 
justice  fit,  under  such  circumstances,  to  sit  in  judg- 
ment between  such  a  man  and  his  opponent,  in 
the  enjoyment  of  no  such  advantages?  I  speak  in 
disparagement  of  no  justice,  when  I  say  that  il  is 
not  in  human  nature  that  he  should  be — and  I 
hope,  as  I  said,  that  some  remedy  may  be  suggest- 
ed for  these  evils.  I  may  be  thought  to  be  spend- 
ing too  much  time  upon  these,  in  some  sense,  in- 
ferior tribunals.  I  say,  "in  some  sense,"  for  in 
one  important  sense,  they  can  by  no  means  be 
considered  inferior.  To  the  great  mass  of  the 
people,  they  are  tribunals  of  at  least  equal  conse-. 
quences  to  any  other.  Small  as  is  their  jurisdic- 
tion, collectively,  they  adjudicate  upon  a  greater 
amount,  perhaps,  in  a  year,  than  any  other  grade 
of  courts  in  the  state. 

Before  leaving  the  subject  I  have  one  word  to 
say  to  the  proposition  of  the  gentleman  from  Mon- 
roe, (Mr.  STRONG)  to  enlarge  the  jurisdiction  of 
these  courts.  He  would  extend  it  to  two  hundred 
and  fifty  dollars.  Now  I  am  not  prepared  to  do 
this,  at  least  not  here.  The  extension,  if  it  is  to 
be  made,  can  as  well  be  done  by  the  legislature, 
and  better,  for  to  do  it.  sately  will  require  enact, 
ments  in  detail,  which  no  one  would  think  of 
putting  into  a  constitution.  But  I  have  another 
reason.  The  poor  man  who  is  compelled  to  liti- 
gate about  a  hundred  dollars,  is  entitled  to  jusl  as 
good  a  court  to  litigate  in,  as  the  rich  man  who 
goes  to  law  about  his  tensof  thousands.  Justices' 
courts,  from  their  very  organization,  from  their 
inevitable  delects,  to  some  of  which  I  have  allud. 
ed,  are  not,  and  I  fear  cannot  be,  as  good  courts, 
and  as  safe  courts,  especially  to  the  poor  man  who 
has  no  patronage  (o  bestow,  as  the  higher  courts 
ought  to  be,  arid  I  hope  hereafter  will  be.  Then 
it  seems  to  me  these  higher  courts,  and  their  prac. 
tice  and  proceedings,  can  be  so  reformed  and 
cheapened  that  litigations  and  collections  in  them, 
tor  small  amounts,  will  cost  little  if  anymore!  than 
injustices'  courts.  If  this  can  be  done,  will  it 
not  be  better  than  to  enlarge  still  farther  the  ju- 
risdiction of  justice?  If  it  cannot  then  let  the 
legislature  extend  their  jurisdiction. 

lindeed,  constituted  as  our  courts  of  common 
pleas  h<*ve  been  and  are,  it  is  not  at  all  wonderful 
that  the  jurisdiction  of  justices  has  been  sought  to 
bf  extended.  Nobody  can  give  any  good  reason 
why  the  jurisdiction  of  the  common  pleas,  as  at 
present  constituted,  should  be  greater  than  that  of 
justices  of  the  peace.  The  courts  of  common 
pleas,  generally,  I  believe,  are  no  way  superior  to 
justices'  cours.  except  that  the  law  gives  them  a 
superior  jurisdiction.  In  p:>int  ol  capacity,  of 
anility  to  perform  well  judicial  labors,  in  general 
they  are  not  superior.  Perhaps  we  have  no  other 
judicial  tribunals  so  utterly  incompetent  to  dis- 
charge the  duties  thrown  upon,  as  most  of  our 
cuuris  of  common  pleas.  From  this,  result  many 


628 


evils.  One  is,  that  it  encourages  the  carrying  up 
of  causes  from  courts  of  justices  of  the  peace, 
when  they  ought  not  to  be  carried  up.  I  have  al- 
ways found  it  more  difficult  to  sustain  a  judgment 
of  a  justice,  which  ought  to  be  sustained,  than  to 
reverse  one  which  ought  to  be  reversed.  Judges 
not  properly  qualified  for  their  stations,  Irom  a 
natural  love  of  exercise  of  power,  or  from  some 
other  cause,  are  always  prone  to  reverse  justices' 
judgments,  and  thereby  to  encourage  this  oppres 
»ive  species  of  litigation.  Another  evil  is,  that 
nobody  is  satisfied  with  the  decision  of  a  court  ot 
common  pleas.  It  may  be  right,  but  it  is  jus' 
about  as  likely  to  be  wrong;  and  the  advice  of  the 
counsel,  if  he  thinks  it  wrong,  is,  of  course,  to 
carry  it  up.  If  the  purse  of  the  client  holds  out, 
a  burthen  is,  thus  thrown  upon  our  overburthened 
supreme  court. 

If  these  courts  of  common  pleas  are  to  be  contin- 
ued, they  must  be  reformed.  Many  gentlemen 
think  they  cannot  be  dispensed  with,  and  perhaps 
with  reason.  There  seems  to  be  -a  necessity  tor 
something  like,  the  common  pleas  court,  as  a  court; 
bat  I  would  abolish  altogether  the  county  judge- 
ships.  Let  the  supreme  court  judges,  provided  by 
the  majority  report,  hold  the  courts  of  common 
pleas,  and  preside  in  the  oyer  and  terminer  and 
general  sessions  of  the  peace.  In  the  criminal 
business,  let  them  call  to  their  aid  two  justices  of 
the  peace,  or  other  county  officers.  This  would 
make  a  saving  of  expense  over  keeping  county 
judges  in  attendance  through  the  whole  court,  ai.d 
would  answer  every  purpose.  But  it  it  should  be 
found  that  the  judges  of  the  supreme  court  can- 
not hold  these  courts,  and  discharge  properly 
their  other  duties,  let  there  be  power  given  to  the 
legislature,  in  that  case,  to  provide  for  the  elec- 
tion of  president  judges,  in  districts,  composed  of 
several  counties,  to  hold  the  couits  of  common 
pleas,  and  preside  in  the  general  sessions.  Of  the 
two  methods,  however,  the  former  is  unquestiona- 
bly best;  and  in  my  judgment  it  would  be  better 
to  enlarge  the  number  of  supreme  court  judges, 
than  to  provide  a  different  and  inferior  grade  ol 
judges.  Unquestionably  it  is  best,  so  iar  as  it  is 
possible,  to  have  but  one  grade  of  judges.  The 
best,  are  none  too  good  for  the  poorest  ana  hum- 
blest, as  vvfll  as  for  the  richest  and  most  elevated 
citizen.  Different  grades  of  judges  encourage 
that  great  evil,  under  our  present  system,  succes- 
sive appeals.  Of  course,  there  is  less  confidence 
in  the  lower  than  the  higher  tribunals  ;  and  ot 
course  there  is  a  temptation  to  appeal  fiorn  one 
to  the  other:  hence  delays  and  costs.  By  hav- 
ing  as  few  grades  of  courts  and  judges,  as  we  con- 
sistently can,  appeals  and  liiigation  are  discour- 
aged in  the  only  way  consistent  with  the  righisot 
individuals.  'If  possible,  then,  let  the  Supreme 
Court  judges  hold  and  preside  in  the  county 
courts.  But  as  some  gentlemen  suppose  this  can- 
not be  done,  I  have  prepared  an  amendment  to 
the  fifth  section  of  the  report  of  the  majority  of 
the  judiciary  committee,  authorizing  the  legisla 
ture  to  provide  for  the  election  of  district  judges. 
One  of  the  unfortunate  changes  in  the  judiciary 
made  by  the  Convention  of  1821,  all  agiee,  was 
the  adoption  of  the  circuit  judge  systtrn.  Th 
judge  at  the  circuit  should  unquestionably  be  a 
judge  also  upon  the  bench — and  the  judge  on  the 
bench  should  as  surely  be  judge  at  the  circuit.— 


Slse  the  judge  on  the  be%ch  becomes  a  closet  law- 
rer,  to  some  extent  ignorant  of  the  common  af- 
airs  of  life  and  business  transactions,  and  the 
udge  at  the  circuit,  a  bad  lawyer,  n<>t  sufficiently 
earned  in  the  rules  of  law  Again,  there  is  much 
undoubtedly  in  the  idea  of  the  gentleman  from 
Seneca,  (Mr.  BASCOM)  that  the  judge  who  tries 
he  cause  should  be  at  least  as  good  a  judge 
as  the  judge  who  is  upon  the  bench.  His"  rea- 
on  for  this  opinion,  that,  the  judge  at  the  circuit 
ries  more  causes  than  the  judge  on  the  bench,  is 
a  good  one.  But  there  are  other  reasons.  The 
ndge  who  tries  the  capses  has  much  the  harder 
tusk  to  periorrn.  In  the  first  place,  he  has  cer- 
ainly  all  the  questions  of  law  to  decide  that  the 
udge  in  bench  has,  and  probably  many  more.  He 
:an  know  nothing  ot  these  questions  beforehand, 
ind  he  has  to  decide  them  off  haivl,  without  any 
opportunity  for  examination,  or  consultation  of 
books,  and  that  generally  upon  very  imperfect  ar- 
;ument  by  counsel.  Besides  all  this,  he  has  the 
acts  of  the  cause  to  take  care  of  as  rt  goes  along. 
tie  has  too,  his  minutes  of  evidence  to  keep,  of 
tselr'  almost  work  enough  for  one  man.  So  great 
?  this  last  labor,  that  Lord  Brougham,  (then  Mr. 
Brougham,)  nearly  twenty  years  ago,  in  the  British: 
House  of  Commons,  in  his  great  speech  upon  le- 
gal reform,  proposed  that  clerks  should  be  provid- 
ed to  keep  minutes  in  short  hand  for  the  judges. 

But  how  is  it  with  the  judges  upon  the  bench  ? 
The  points  raised  before  them  are  all  on  paper. 
They  have  BO  facts  of  the  cause  to  watch  as  they 
come  out,  no  minutes  of  evidence  to  take ;  the 
points  of  law  are  fully  and  elaborately  discussed 
before  them,  and  they  have  ample  time  to  consult 
their  libraries,  and  weigh  and  deliberate  upon 
their  decisions.  Tell  me  whether,  if  there  is  to 
be  any  difference,  the  judge  at  the  circuit  ought 
not  to  be  the  greater  man,  than  the  judge  on  the 
bench  ?  But  all  we  can  do  is  to  make  him  the 
same  man,  and  this  the  report  of  the  majority  of 
the  committee  does  do,  and  in  that  it  has  my 
hearty  concurrence. 

I  wish,  Mr.  Chairman,  this  principle  of  having 
the  judge  on  the  bench  at  the  same  time  a  judge 
at  Nisi  Prius,  might  be  extended  to  the  court  of 
appeals,  provided  'in  the  majority  report— espe- 
cially to  those  of  the  judges  of  it,  who  are  to  be 
elected  in  the  State  at  large.  Perhaps  it  may  be, 
but  1  fear  that  it  would,  in  practice,  be  found  im- 
po^sible.  For  this  reason,  it  would  perhaps  be 
better  to  take  the  whole  number  of  the  judges  of 
the  court  of  appeals  from  the  districts,  one  from 
each  district.  They  would  then  have  had  pre- 
vious experience  at  the  circuit,  as  well  as  on  the 
bench  of  the  supreme  court.  And  there  is  an- 
other reason  in  favor  of  this.  We  are  about  to 
introduce  the  system  of  electing  judges,  and  I  am 
glad  that  we  are.  ~~THe  change  is  not  only  de- 
manded by  public  sentiment,  but  it  is  right  in  it- 
self, and  it  is  the  only  system  consonant  with  our 
theory  of  government.  Upon  this  system  there 
is  something  in  the  idea  of  equal  representation 
upon  the  bench,  as  well  as  in  the  halls  of  legisla- 
tion— and  if  we  elect  four  judges  from  the  State 
at  large,  and  take  four  from  four  districts,  and 
none  from  the  other  four,  the  representation  is 
not  equal.  Nor  would  alternation  among  the 
districts  altogether  remedy  the  evil,  for  all  should 
be  represented  alike,  at  all  times.  Again,  the 


629 


election  of  judges,  in  the  State  at  large,  is  not, 
in  my  judgment,  the  best  mode.  The  candidate 
will  not  in  that  way  be  sufficiently  known  to  most 
of  the  electors.  This  is  an  important  considera- 
tion ;  and  yet,  in  securing  this  object,  we  must 
take  care  that  we  do  not  run  into  other  difficul- 
ties. If  we  make  our  districts  too  small  we  shall 
be  liable  to  have  judges  elected  upon  local  ex- 
citement. If  for  instance,  we  should  adopt  the 
single  senate  districts,  as  judicial  districts,  as  re- 
commended by  the  gentleman  from  Seneca,  (Mr. 
BASCOM,)  would  there  not  be  this  danger? — 
Rensselaer  is  a  single  district,  Albany  is  another. 
Have  there  not  been  times,  within  the  last  few 
years,  when  it  would  not  have  been  safe  to  elect 
judges  in  them  ?  It  cannot  be  said  that  it  is 
equally  safe  as  it  is  to  elect  Senators.  The  judge 
is,  in  some  sense,  a  one  man  power — he  holds 
his  courts,  in  part,  at  least,  alone,  with  nobody  to 
restrain  him,  or  temper  his  action.  The  Senator 
is  but  a  constituent  member  of  a  body,  and  of 
himself  can  effect  nothing.  In  my  judgment,  the 
majority  report  is  about  right  in  this  particular, 
so  far  as  it  respects  the  election  of  the  judges  of 
the  supreme  court.  The  districts  are  not  so  small 
as  to  create  danger  from  local  excitement,  and 
not  yet  so  large  that  the  candidate  may  not  be  suf- 
ficiently known  to  the  voter. 
<As  lo  the  proposition  to  unite  the  lawand  equity 
jurisdictions  in  our  tribunal,  he  had  not  much  to 
say.  No  reasons  have  yet  been  assigned  for  doing 
so,  satisfactory  to  his  mind — he  couid  see  nothing 
to  be  gained  bv  it.  He  feared  it  might  introduce 
confusion  and  difficulty,  that  might  be  the  means 
of  causing  an  utter  failure  of  the  system.  Yet,  if 
the  majority  of  this  Convention  shall  ihink  other- 
wise, I  shall  cherfully  acquiesce  in  this  determi- 
nation, and  use  my  feeble  powers  to  aid  in  per- 
fecting the  system,  and  giving  it  a  lair  trial.  But 
that  the  praciice  of  the  two  courts  can  be  so  blend- 
ed as  to  m?.ke  one  praciice — that  they  can,  to  use 
thi>  language  of  the  gentleman  from  New  York, 
(Mr.  O'CoNOR,)  ««  be  blended  in  one  uniform,  har- 
monious practice,"  I  have  no  belief.  The  ends  to 
be  attained  by  the  two  modes  of  proceeding  are 
different, and  what  objection  can  there  be  lo  making 
use  of  different  and  appropriate  means  to  attain 
the*'1  ends  ?  Why  compel  a  man  to  take  one  road 
to  all  places  ?  It  has  been  often  asserted,  on  this 
floor,  that  the  only  distinction  between  law  and 
equity,  was  in  the  mode  of  proceedings  This  is 
not  strictly  true.  The  rules  of  law  by  which  the 
two  courts  are  governed,  are  different,  to  some 
extent.  In  the  main,  they  are  the  same,  but  not 
altogether.  Take  for  example  the  common  case 
of  land  held  under  contract  to  purchase,  as  it  is 
termed.  The  vendor  in  possession,  though  he 
may  have  paid  part  or  all  the  consideration  money 
is,  bj  tbe  doctrines  of  the  court  of  law,  but  a  ten- 
ant at  will,  liable  to  be  turned  out  at  any  moment, 
and  lose  all  his  improvements,  and  is  subject  at 
all  times  to  have  his  land  sold  to  pav  the  debts  ol 
his  vendor.  He  has  no  interest  whatever  in  the 
soil.  But  in  chancery  his  righ's  are  p  rfect.  If 
he  has  paid  all,  or  any  part  of  the  consideration 
money,  he  is,  to  that  extent,  the  owner  of  the 
soil.  And  it  is  only  in  a  court  of  chancery,  that  tin- 
rights  of  a  very  numerous  class  of  comparatively 
poor  men  in  I  he  siate,  holding  these  land  contracts 
have  any  protection.  [Mr.  TAYLOR  fuuherillua 


frated  this  subject  by  further  examples  and  said.] 
Lotus  not  then  abolish  this  jurisdiction,  whah-\<T 
court  we  may  give  it  to,  while  our  rules  of  law 
temain  as  they  are.  We  cannot  change  them, 
here,  in  this  Convention.  If  it  can  be  done  at  all, 
it  must  be  done  by  legislation.  And.  if  it  can  be 
done  consistently  with  the  public  good,  let  it  be 
done.  But  let  us  preserve  an  equity  jurisdiction, 
until  it  is  done. 

Here  Mr  T.  (the  hour  of  two  having  arrived) 
gave  way  to  a  motion  to  rise  and  report  progress. 

The  Committee  rose,  and  the  Convention  took 
a  recess. 

AFTERNOON  SESSION. 

Mr.  J.  J.  TAYLOR  resumed  his  remarks.  He 
said  he  was  satisfied  with  the  3rd  section  of  the 
majority  report,  with  the  slight  amendment  which 
he  should  propose,  if  the  jurisdictions  Qfjaw  and 
equity  were  to  be  united  in  one  court.  But  he 
musT'not  be  understood  as  advocating  a  chancery 
court  or  jurisdiction,  such  as  that  which  we  now 
have.  That  jurisdiction  had  doubtless  been  too 
much  extended.  He  would  bring  it  back  to 
something  like  what  it  was  in  the  days  of  Lord 
Hardwick.  At  the  same  time  he  must  not  be  un- 
derstood as  censuring  the  present  chancellor.  If 
he  had  assumed  any  jurisdiction,  by  construction 
or  otherwise,  the  legislature  had  thrown  upon 
him  much  more.  That  court  had  been  found  a 
convenient  receptacle  for  everything  that  had  no 
appropriate  place  anywhere  else.  It  was  capa- 
ble of  being  adapted  to  almost  any  business — and 
he  submitted  whether  this  very  capacity  of  adap- 
tation was  not  an  argument  in  favor  of  rather  than 
against  the  jurisdiction, and  whether  a  great,  grow- 
ing state  like  ours  did  not  need  some  such  juris- 
diction. The  proceedings  in  chancery,  too,  might 
be  much  simplified,  shortened  and  improved.  He 
desired  it  might  be  done,  and  that  in  every  possi- 
ble way  the  expense  of  litigation  and  business  in 
that  court,  and  in  all  others,  might  be  lessened. 
He  would  abolish  examiners  in  chancery  and  per- 
haps masters  too.  But  it  was  an  error  to  suppose 
there  was  any  great  technicality  in  these  proceed- 
ings— anything  that  could  not  be  easily  compre- 
hended by  a  little  study.  They  were,  in  fact, 
much  less  technical  than  proceedings  in  courts  of 
law.  He  would  not,  however,  on  that  account 
abolish  the  latter,  and  make  everything  a  chance- 
ry procedure,  as  had  been  substantially  proposed 
by  the  gentleman  from  New  York  (Mr.  O'CoNOR.) 
If  the  desired  end  could  be  obtained  by  the  di- 
rect, simple  process  of  the  common  law,  by  all 
means  let  it  be  done.  Let  us,  in  every  case,  make 
use  of  those  means  which  are  best  adapted  to  the 
end  to  be  accomplished.  This  is  done  in  every 
other  business — why  not  in  proceedings  at  law  ? 
He  was  satisfied  that  the  two  jurisdictions  could 
not  be  blended  so  as  to  form  one  single  mode  of 
proceeding — and  he  feared  very  much  that  the  at- 
tempt to  unite  them  in  one  court  would  not  only 
prove  a  failure,  but  bring  into  disrepute  a  judi- 
ciary system  otherwise  well  constructed.  Chan- 
cellor Kent,  universally  acknowledged  to  be  one 
of  our  most  eminent  jurists,  had  confessed  that 
when  he  was  appointed  chancellor  he  was  obliged 
again  to  become  a  student  to  qualify  himself  for  the 
discharge  of  his  new  duties,  though  he  had  been 
chief  justice  of  the  state.  Is  it  safe  then  to  give 


630 


both  jurisdictions  to  one  set  of  judges  ?  Mr.  T. 
found  himself  fortified  in  his  views  onfthis  sub- 
ject by  those  of  many  of  the  great  men  who  framed 
our  present  constitution,  and  he  read  from  the  de- 
bates of  the  Convention  of  1821  the  remarks  of 
Mr.  Van  Buren,  in  which  he  pronounced  the  court 
of  chancery  the  chief  corner  stone  of  our  judicia- 
ry ;  and  also  the  remarks  of  Mr.  Van  Vechten. 
He  called  the  attention  of  members  to  these  de- 
bates. 

The  United  States  courts  had  been  cited  as  an 
example  of  the  union  of  the  two  jurisdictions,  but 
it  was  admitted,  he  believed,  by  the  ablest  judges 
of  those  courts,  that  had  they  the  general  law  and 
equity  powers  which  exist  in  the  states,  they 
could  not  well  get  along.  From  the  very  nature 
of  the  United  States  government,  their  powers 
were  limited. 

But  after  all,  if  it  was  the  will  of  the  majority 
to  unite  the  two  jurisdictions  in  one  court,  let 
the  experiment  be  tried.  Nobody  would  be  more 
ready  to  hail  its  success,  than  he  would.  It  had 
been  objected  to  the  preserving  the  two  jurisdic- 
tions, even  in  the  same  tribunal,  that  they  ran 
into  each  other,  and  it  was  difficult,  sometimes, 
to  define  accurately  the  line  between  them.  This 
difficulty  had  been  greatly  overrated,  though  he 
admitted  there  was  something  in  it.  Is  there 
anything  in  this  world  without  its  imperfections? 
The  same  objection  might  be  made  to  the  colors 
of  the  rainbow.  Who  can  define  the  line  which 
separates  them  ?  But  is  that  any  objection  to  the 
colors  themselves  ? 

Mr.  T.  had  a  few  remarks  to  make  on  the  re- 
port of  the  majority  of  the  committee,  and  he 
should  be  done.  He  had  said  he  would  abolish 
county  judges — certainly  he  would  not  have  more 
than  one,  and  make  him  elective  by  the  people. 
But  he  preferred  to  have  none.  Some  of  their 
local  duties  might  be  discharged  by  the  surro- 
gate, who  should  also  be  made  elective,  as  the 
report  provides.  Others  might  go  to  other  offi- 
cers. 

One  reason  for  abolishing  county  judges  was, 
that  their  judgeships  will  not  support  them,  and, 
if  lawyers,  they  must  be  allowed  to  practice  law. 
He  was  not  willing  to  have  any  judge  at  the  same 
time  that  he  was  judge,  a  practicing  lawyer  in 
any  court.  No  man  can  be  trusted  with  suitors 
before  him,  as  judge,  who  are  his  clients  in  other 
causes.  No  man  should  trust  himself  in  such  a 
position.  Human  nature  was  too  weak  fbr  it — 
and  if  it  were  not,  the  judge  should  be,  like  Ce- 
sar's wife,  not  only  pure,  but  above  suspicion. — 
He  would  prohibit  all  judges  from  practising  as 
lawyers  or  counsel  in  any  court.  Justices  of  the 
peace  should  at  least  be  prohibited  from  practicing 
as  counsel  in  justices'  courts. 

He  would  go  with  the  gentleman  from  Monroe, 
(Mr.  STRONG,)  to  strike  out  of  the  report  the 
clause  authorizing  the  judges  to  license  practi- 
tioners in  their  courts.  He  had  for  a  long  time 
believed  these  licenses  useless,  if  not  worse. — 
They  may  serve  to  deceive  the  public,  and  give 
credit  and  employment  to  men  who  do  not  de- 
serve it.  He  would  let  anybody  practice  law  as 
he  would  let  him  pursue  any  other  calling.  If 
he  is  worthy  of  employment  he  will  get  it,  if  not, 
he  must  content  himself  without  it.  He  would 
not  have  the  lawyers  "a  privileged  class,"  as  they 


had  been  called,  even  though  the  privilege  were 

only  to  work  hard  all  their  days,  and  die  poor 

He  concluded  by  urging  mutual  yielding  of  pre- 
conceived opinions  and  views,  in  order  to  the 
perfecting  of  some  one  of  the  plans  submitted,  or 
a  combination  of  them.  He  regarded  either  of 
them  as  a  great  improvement  upon  the  present 
system,  and  he  felt  that  we  were  greatly  indebted 
and  the  people  of  this  great  state  would  consider 
themselves  indebted,  to  the  judiciary  committee 
for  the  great  labor  they  had  bestowed  so  success- 
fully upon  this  important  subject.  He  preferred 
the  plan  of  the  majority  of  the  committee,  with 
some  slight  alterations,  not  at  all  interfering  with 
the  general  plan.  But  he  was  willing  to  yield  his 
individual  views,  so  far  as  he  consistently  could, 
for  the  sake  of  harmonizing  on  some  plan  which 
should  suit  a  majority.  He  rejoiced  to  see  this 
spirit  of  reconciliation  pervading  this  debate  and 
the  Convention  generally. 

Mr.  FLANDERS  said  he  would  make  no  apo- 
logy for  rising  to  address  the  committee  on  this 
occasion.  He  held  it  to  be  his  right — more,  he 
regarded  it  as  his  duty,  to  give  his  views  on  the 
subject  under  consideration.  On  the  score  of 
courtesy,  too,  he  thought  he  might  justly  claim 
the  attention  of  the  committee  for  a  few  moments; 
for  this  was  the  first  instance  in  which  he  had 
risen  to  make  any  lengthened  remarks  in  this 
body.  But  while  he  considered  it  his  right  and 
duty  to  speak,  he  owed  it  to  the  committee  and 
to  himself  to  say,  that  he  approached  the  discus- 
sion with  extreme  diffidence.  He  was  aware  of 
the  magnitude  and  vast  importance  of  the  ques- 
tion— he  thought  he  justly  appreciated  the  extent 
of  the  interests  to  be  affected  for  good  or  evil  by 
our  action — and  he  believed  that  he  was  duly  sen- 
sible of  the  great  ability,  profound  learning,  and 
lofty  eloquence,  which  gentlemen  who  preceded 
him  had  brought  to  this  discussion,  But  in  his 
judgment,  every  constituency  represented  on  this 
floor  was  entitled  to  be  heard  through  its  repre- 
sentatives, and  gentlemen  should  make  known  the 
views  and  wishes  of  every  portion  of  the  State — 
that  in  our  deliberations  and  action,  such  a  judi- 
ciary system  as  would  give  general  satisfaction 
might  be  adopted.  And  he  would  here  take  oc- 
casion to  express  his  great  gratification  at  the 
spirit  which  had  been  manifested  by  gentlemen 
who  had  taken  part  in  the  debate.  He  discover- 
ed a  general  disposition  to  devise  and  unite  upon 
the  best  plan  which  was  attainable,  for  the  admi- 
nistration of  justice  in  the  great  State  whose  so- 
vereign authority  we  represent.  This  he  regard- 
ed as  eminently  auspicious.  For,  with  the  talent 
which  was  congregated  upon  this  floor,  and  the 
liberal  and  honest  intentions  which  had  been  ex- 
hibited, he  could  not  doubt  that  we  should  arrive 
at  good  and  satisfactory  results.  What  do  we 
propose  to  do  ?  He  understood  our  object  to  be, 
to  furnish  the  people  with  a  wise,  efficient,  speedy 
and  economical  administration  of  justice,  which 
should  be  easily  accessible  to  the  whole  commu- 
nity. He  need  not  say  that  such  a  system  does 
not  now  exist  in  this  State.  Our  present  judicial 
organization  is  universally  condemned — its  de- 
fects are  everywhere  acknowledged.  No  voice 
is  raised  to  defend  it — no  hand  is  put  forth  to  save 
it  from  its  merited  doom.  The  evils  which  at- 
tend its  action  have  already  been  exposed  by  gen-  • 


631 


tlemen  who  are  familiar  with  its  practical  work- 
ings in  all  its  branches  and  departments.  Its  de- 
lav  -s,  uncertainty,  inefficiency,  and  enormous  ex- 
pense, were  well  understood,  and  needed  no  far- 
ther exposition  than  had  already  been  made.  In- 
deed, judgment  had  been  pronounced  upon  it  by 
the  people,  and  we  had  come  here  with  their  high 
behest  to  remove  it,  and  substitute  h\  its  stead,  a 
wiser  and  a  better  system.  It  is  to  that  work  we 
have  to  address  ourselves,  that  the  interests  and 
wishes  of  our  common  constituency  may  be  sub- 
served. In  looking  around  us  for  a  plan  which 
would  answer  the  great  ends  which  we  have  in 
view,  he  thought  that  what  we  sought  was  to  be 
found,  in  all  its  substantial  features,  in  the  report 
of  the  majority  of  the  Judiciary  committee.  In 
his  judgment,  that  report  would  furnish  a  system 
which  would  meet  the  wants,  provide  for  the  in- 
terests, and  promote  the  happiness  of  this  great 
people.  The  plan  proposes  a  uniflmgf  law  and 
equity  jurisdiction  in  the  same  tribun"juT"°'To  this 
he  was  decidedly  favorable.  He  could  see  no 
sound  oo"j?etrw»-to  it.  He  spoke  according  to  his 
best  judgment — and  although  he  felt  his  slight 
experience  and  limited  knowledge,  and  holding 
himself  the  humblest  member  upon  that  floor — he 
must  still  be  permitted  to  say,  that  in  his  opinion 
no  good  reason  could  be  urged  against  it.  He 
thought  it  perfectly  practicable,  and  tiiat  it  could 
be  carried  into  effect  without  difficulty.  The  fact 
that  this  union  had  existed  for  a  long  time  in  cer 
tain  departments  of  the  Judiciary  system  of  our 
own  State — that  it  had  always  prevailed  in  the 
courts  of  the  United  States  government — and  that 
in  a  large  number  of  the  States  of  this  Union  no 
distinct  and  separate  jurisdiction  had  ever  been 
known,  furnished  to  his  mind  satisfactory  evi- 
dence that  the  proposed  change  was  safe  and  wise. 
If  this  union  of  law  and  equity  had  not  worked 
well  in  the  c?.ses  alluded  to,  he  thought  that  a  di- 
vorce wov.ld  1  i.ig  since  have  been  demanded,  and 
that  it  would  have  been  carried.  But  he  could 
see  nothing  inconsistent  in  the  two  jurisdictions. 
They  were  both  but  parts  of  one  great  whole. — 
The  object  of  our  law  courts  was  to  enforce  rights 
and  redress  wrongs.  That  also,  was  the  object  of 
our  courts  of  equity.  Both  were  intended  to  ad- 
minister certain  established  principles  of  our  law. 
As  an  orignal  question,  would  it  seem  to  any 
mind  that  this  administration  could  not  be  carried 
on  by  one  and  the  same  tribunal  ?  He  ventured 
to  say  that  it  would  not.  The  whole  difficulty 
arose  from  this  circumstance.  We  had  been  accus- 
tomed to  a  different  order  of  things,  and  men  never 
were  unwilling  to  proceed  in  any  other  manner 
than  that  to  which  they  had  been  used.  There 
was  a  conservative  principle  or  element  in  every 
human  mind,  and  especially  was  this  the  case 
with  the  members  of  the  legal  profession.  Of  all 
men  he  thought  they  were  the  most  conservative. 
And  it  was  natural  that  they  should  be  so.  Their 
labors  related  to  things  as  they  were,  and  their 
researches  were  into  musty  tomes  of  the  past. — 
They  sought  not  to  know"  what  is  right — what 
ought  to  be — but  endeavored  only  to  ascertain 
what  has  been  established  by  precedent.  They 
were  not  moved  by  a  spirit  of  progress  and  ame- 
lioration, but  were  disposed  to  cling  to  things  as 
they  were.  He  thought  this  the  secret  of  the  op- 
position which  was  made  to  the  proposed  meas- 


ure. But  he  was  surprised  that  his  friend  from 
New-York  (Mr.  SHEPARD,)  who  spoke  this  morn- 
ing, manifested  so  much  conservatism  upon  this 
question.  He  (Mr.  F.)  had  not  supposed  that  that 
gentleman  had  been  so  long  engaged  in  legal 
practice  as  to  have  become  so  strongly  wedded  to 
ancient  institutions  as  appeared  to  be  the  case 
with  him.  But  he  was  sure  that  his  friend  was 
sincere  in  the  opinions  which  he  expressed,  and 
consulted  what  he  deemed  to  be  the  public  good, 
but  he  must  say  that  he  thought  him  in  error. — 
Suppose,  sir,  we  were  now  engaged  in  devising 
a  judicial  system  originally,  without  having 
known  any  former  system,  or  being  influenced 
by  any  preconceived  opinions  upon  the  sub- 
ject. Do  you  think  that  any  one  would  suppose 
that  different  kinds  of  courts,  separate  junsdic. 
lions,  would  be  necessary  for  ihe  due  admimstra. 
lion  of  the  laws.  He  had  no  idea  that  any  one  would. 
And  this  distinction  would  never  have  existed 
among  us,  had  we  not  derived  it  from  the  mother 
country.  The  system  was  furnished,  ready-made, 
to  our  hands,  from  across  the  water,  and  to  this 
circumstance  we  may  attribute  its  existence  here. 
And  in  regard  to  the  terms  of  proceeding,  he  did 
not  think  there  was  any  good  reason  why  they 
should  not  be  assimilated.  He  believed  that  they 
might  and  should  be.  Why  not  come  to  a  single 
and  direct  mode  of  staging  what  we  mean  and 
what  we  want  in  our  legal  proceedings  ?  He 
thought  this  could  be  easily  dor,ev  not  only  as  be- 
tween law  and  equity  cases,  but  also  as  relates  to 
different  forms  of  action  at  law.  Let  the  com- 
plainant or  plaintiff,  state,  in  a  plain,  substantial, 
and  direct  manner,  what  he  complains  of,  and 
what  he  seeks  by  his  action  ;  and  let  the  defend- 
ant, in  the  same  way,  state  his  defence,  without 
any  particular  kind  or  form  of  action  being  named 
throughout  the  proceeding.  And  according  to  the 
character  of  the  case  finally  moved  as  established 
in  the  course  of  the  litigation,  let  judgment  be 
rendered,  or  relief  decreed,  '"fri  the  trial  of  cases 
involving  questions  of  fact,  he  thought  that  issues 
growing  out  of  transactions  of  equity  jurisdiction 
might  as  well  be  tried  by  a  jury,  as  i.i  matters  of 
legal  cognizance.  Cases  at  law  in  many  instances 
present  a  great  variety  and  long  train  of  complica- 
ted tacts  and  circumstances,  -and  \et  they  are  al- 
ways passed  upon  and  decided  by  a  jurv.  If  this 
is  the  pr  per  mode  of  trial  in  matters  of  this  char- 
acier — and  no  one  questions  thai  it  is — there  does 
not  seem  much  ground  for  opposing  the  extension 
of  the  trial  by  jury  to  equity  cases.  But  this 
brunch  of  the  subject,  was  so  well  arid  happily 
argued  and  illustrated  by  the  gentleman  from  New 
York  (Mr.  NICOI.L.)  that  he  would  not  longer 
dwell  upon  it.  In  regard  to  this  whole  matter  he 
(Mr.  F.)  thought  that  the  resistance  which  was 
made  to  this  reform,  arose  from  the  conservative- 
spirit  to  which  he  had  before  alluded.  But  he 
confessed  he  could  not  see  the  difficulties  which 
were  imagined  to  stand  in  the'  way  of  the  measure. 
To  his  mind,  the  practicability  of  it  had  been 
demonstrated  by  two  gentlemen  from  New- 
York — (Messrs.  O'CoNoR  and  NICOLL) — the  gen- 
tleman from  Herkimer  — (Mr.  LOOM  is) — and  the 
gentleman  fiom  Orange — (Mr.  BROWN.)  They 
lad  gone  over  the  whole  ground,  and  it  would 
not  become  him  to  enter  a  field  which  had  been 
so  fully  occupied.  And  he  would  here  remark, 


632 


that  he  thought  all  fear  of  this  being  a  dangerous 
innovation,  must  be  removed  from  everv  mind 
when  lawyers  so  able,  experienced,  ai;d  distin- 
guished, as  those  whom  he  had  just  named,  were 
found  advocating  it.  He  hoped  that  some  provi- 
sion would  be  introduced  into  the  new  Constitu- 
tion, indicating  the  wish  that  the  reform  suggest- 
ed should  be  carried  out  by  the  legislature  and  the 
courts.  He  wanted  the  expression  of  this  enlight- 
ened body  in  its  favor.  Passing  on  to  the  partic- 
ular organization  of  the  courts  proposed  by  the 
^committee,  he  suggested  that  he  should  have  lik- 
/  ed  it  better  if  it  had  provided  that  the  court  of  ap- 
I  peals  should  be  constituted  entirelyof  judges  of  the 
/  Supreme  Court.  It  was  agreed  onfall  hands,  that 
I  it  was  best  that  judges  of  a  court  of  review  should 
be  accustomed  to  the  trial  of  causes  at  nisi  pnus 
— that  they  should  be  compelled  to  mingle  with 
the  people,  and  thereby  become  acquainted  with 
their  interests,  and  the  practical  business  and  re- 
lations of  life.  Hence,  he  preferred  that  all  the 
judges  of  ihe  court  of  appeals  should  be  tak^n 
from  Ihe  bench  of  the  Supreme  Court,  instead  of 
out-half  their  number  being  elected  as  judgesof  the 
couri  of  appeals  exclusively,  and  never  having  an 
opportunity  to  try  a  cause,  as  proposed  by  the  coin- 
mil  lee.  He  approved  the  proposition  of  having 
'  but  one  court  of  general  original  jurisdiction  in 
1  the  State.  This  was  favorable  to  simplicity  and 
uniformity  in  the  system.  For  this  reason  he 
could  not  concur  in  the  plan  of  the  gentleman 
from  Chautauque,  (Mr  MARVIN)  or  any  other 
which  proposed  a  subdivision  of  the  same  gene- 
ral jurisdiction  among  several  courts.  He  was  la- 
vorable  to  the  election  of  ihe  judges  by  districts, 
and  he  thought  ihey  should  be  elected  by 
single  districts,  as  proposed  by  the  gentleman 
horn  Seneca,  (Mr.  BASCOM)  rather  than  forming 
the  State  into  eight  large  districts,  with  lour 
judges  10  a  district,  as  the  committee  would  leave 
it.  In  another  particular  he  thought  t!  e  plan  oi 
the  gentleman  from  Seneca,  (Mr.  BASCOM,)  the 
best.  It  v\as  in  providing  lhat  tbeie  should  be 
bane  sessions  of  the  Supreme  Court  in  eve- 
ry county  of  the  several  judicial  districts  as  of 
len  as  should  be  needful  for  the  proper  dis- 
position of  business.  This  would  be  a  great  and 
benefical  reform,  and  one  which  was  urgently  de- 
manded by  the  people.  They  required  that  they 
should  no  longer  be  put  to  the  inconvenience  and 
expense  of  having  their  causes  reviewed  and  de- 
termined in  distant  parts  of  the  State.  What 
they  wranted  was,  that  suits  should  not  only  be 
tried  originally  at  home,  but  that  in  their  several 
stages  of  review,  up  to  their  final  determination, 
they  should  be  brought  as  near  as  possible  to  the 
several  localities  where  the  controversies  origi- 
nated. It  might  be  said  that  under  the  plan  of 
the  committee  the  legislature  might  provide  for 
this.  That  was  true,  but  the  report  of  the  gen- 
tleman from  Seneca- (Mr.  BASCOM)  directed  what 
should  be  done  in  this  respect,  and  he  (Mr.  F.) 
,  .  preferred  a  certainty  to  an  uncertainty.  He 
tli ought  that  our  inferior  courts  had  not  received 
that  attention,  in  this  body,  to  which  they  were 
entitled.  He  supposed  it  was  to  be  attributed  to 
the  fact  that  the  gentlemen  who  had  given  their 
views  upon  the  subject  of  judiciary  reform  had 
practised  exclusively  in  the  higher  courts,  and 
were  not  therefore  familiar  with  the  practical  op- 


erations of  the  courts  of  justices  of  the  peace.  He 
did  not  know  but  these  humble  tribunals  were  to  be 
passed  over  as  unworthy  of  consideration.  In  his 
judgment  they  were  the  most  important  branch 
of  our  judiciary  system.  He  might  give  them 
undue  prominence  from  the  fact  that  he  came 
from  a  district  of  country  where  the  most  of  the 
litigation  was  had  in  those  courts.  But  he  thought 
that  take  the  State  at  large,  the  controversies  car- 
ried on  by  them  were  far  greater  in  amount  than 
those  entertained  by  all  other  courts,  and  that  the 
action  of  these  tribunals  more  immediately  and 
deeply  affected  the  interests  of  the  people  than 
the  combined  operation  of  all  the  rest  of  the  sys- 
tem. And  he  was  happy  that  the  gentleman 
from  Tioga  (Mr.  J.  J.  TAYLOR)  had  so  far  de- 
parted from  the  line  of  discussion  pursued  by 
other  gentlemen,  as  to  bring  this  subject  promi- 
nently before  the  convention.  He  (Mr.  F.)  was 
delighted  with  the  remarks  of  that  gentleman. — 
He  had  made  a  thorough  and  able  exposition  of 
the  evils  and  defects  of  qur  justices'  courts,  as  at 
present  constituted,  and  showed  an  absolute  ne- 
cessity for  amendment  and  reform  in  them.  He 
(Mr.  F.)  thought  that  this  subject  should  not  be 
overlooked  in  our  efforts  to  improve  the  higher 
departments  of  our  judiciary.  But  a  compara- 
tively small  portion  of  the  people  were  immedi- 
ately interested  in  the  upper  courts,  or  would  be 
directly  affected  by  their  action,  while  the  great 
mass  of  the  community  were  dependent,  for  the 
protection  of  their  rights  and  interests,  upon  these 
inferior  courts.  He  therefore  thought  it  the  duty 
of  this  body,  while  it  was  providing  an  improved 
organization  of  courts  for  the  few,  who  would 
have  controversies  of  such  a  nature  that  they 
would  have  to  be  litigated  in  the  higher  courts, 
either  originally  or  by  appeal — also  to  do  some- 
thing to  raise  the  character  of  those  courts  to 
which  the  people  had  to  resort  for  the  determi- 
nation of  their  controversies.  He  wished  gentle- 
men would  for  a  moment  consider  what  justices' 
courts  are,  and  how  proceedings  are  conducted 
in  them.  Each  town  in  the  State  has  four  justi- 
ces of  the  peace.  They  may  reside  and  hold  their 
courts  in  any  part  of  the  town— even  in  its  most 
remote  and  inconvenient  corner.  The  justice  is- 
sues the  process  of  his  own  court.  A  party  wish- 
ing to  bring  a  suit,  may  select  his  justice  from 
any  of  those  in  the  town  in  which  he  may  reside, 
or  in  either  of  its  adjoining  towns.  He  can  go  to 
the  justice  whom  he  thinks  the  best  suited  to  his 
purposes,  tell  him  his  story,  get  his  advice 
as  to  the  form  of  action,  in  which  he  should 
prosecute,  the  kind  of  process  to  sue  out, 
what  witnesses  he  will  want,  and  all  other  par- 
ticulars necessary  to  insure  success.  The  result 
is,  that  in  many  instances,  the  cause  is  prejudged 
at  this  early  stage  of  it.  The  trial  comes  on.  It 
may  be  had  at  any  time  of  day,  and  at  any  place, 
perhaps  in  a  bed-room,  a  kitchen,  a  barn,  a  bar- 
room, or  a  grog-shop.  The  defendant  may  think 
that  the  plaintiff  has  got  the  start  of  him  in  the 
selection  of  the  justice,  and  he  calls  for  a  jury.— 
A  venire  is  issued.  It  is  handed  to  a  constable, 
who  picks  a  jury  of  such  materials  as  he  pleases, 
and  often  acting  under  the  influence  of  one  or  the 
other  of  the  parties.  The  cause  is  tried,  and  the 
parties  take  such  justice  as  they  can  get  under 
such  a  system.  A  worse  state  of  things  than  this 


633 


could  hardly  be  imagined,  and  some  remedy, 
whereby  these  evils  may  be  removed,  ought  to  be 
,'his  is  a  work  iu  which  this  Conven- 
tion should  earnestly  engage,  that  a  wholesome 
and  impartial  administration  of  justice  may  be 
provided  for  the  whole  people.  These  inferior 
courts  must  be  elevated  and  improved,  to  meet 
the  public  wants  and  interests.  He  believed  that 
this  might  easily  be  done.  He  had  reflected  some 
upon  the  subject,  and  a  plan  had  occurred  to  him, 
which  he  had  reduced  to  writing,  and  would  read 
as  a  part  of  his: 

"  Town  courts  shtfll  be  organized  -with  civil  jurisdiction 
in  such  ca<es  as  shall  be  designated  by  law  to  the  amount 
of  two  hundred  and  fifty  dollars,  and  with  such  criminal 
jurisdiction,  and  other  powers  and  duties,  as  shall  be  pre- 
scribed by  law.  Laws  shall  be  passed  providing  for  the 
holding  of  i'miuent  and  stated  terms  of  the  said  courts,  at 
n'xrd  and  convenient  places,  in  the  several  towns  of  this 
State,  and  for  the  lair  and  impartial  drawing  and  summon- 
ing of  jurors  in  said  courts.  Each  of  said  courts  shall 
have  a  clerk  for  the  Usuing  of  process,  entering  of  defaults, 
taking  of  confessions  of  judgment,  and  the  performance  ot 
such  other  duties  as  shall  be  devolved  upon  him  by  law. 

"  Whenever  a  new  trial  shall  be  deemed  necessary,  by 
a  court  of  review  for  the  attainment  of  the  ends  of  justice, 
in  any  case  originating  in  a  town  court,  such  new  trial 
shall  be  had  in  the  town  where  such  cause  was  first  tried, 
or  in  an  adjoining  town. 

"  Such  town  courts  shall  be  held  by  judges  to  be  elect 
•ed  by  counties  or  districts,  for  such  terms,  and  with  such 
compensation,  as  shall  be  prescribed  by  law." 

Some  such  measure  as  this   would   effect   the 

desired  reform.     We  owe  it  to  the  people  to  mak 

a  sincere  and  united  effort  to   afford  them   reliel 

from  the  defective  and  mischievous   arrangement 

and  operation  of  justices'  courts.     We  are  taking 

great  pains  to  reorganize  and  improve  our  highei 

courts.     In  these  courts  we  are  careful  to  guard 

the  purity  and  impartiality  of  the  trial  by  jury 

and  removing  temptation  as  far  as  possible   from 

the  judges  of  those  courts,  and  relieving  suitors 

from  vexatious  and  burdensome  impositions,  by 

taking  away  all  fees  from  those  officers,   and  re 

quiring  them  to  De  paid  by   fixed   salaries.     But 

yet,  we  are  leaving  that  class  of  courts  which  is 

far  more  important  to  the  mass  of  the  people,  ex 

posed  to  the  corrupt  and  dangerous  influences  to 

which    he    had     referred,    and     allowing     the 

officers  holding  those  courts  to  be  wholly  depend 

ent  upon  fees.     He  would  provide  for  all  alike 

By  the  plan  suggested  by  him  we  should  establish 

courts  in  which  the  people  would  have  confidence 

In  them  the  law   would  be  so  well  administere< 

that  a  large  share  ot  business  which  is  now  con 

ducted    in  the    higher  courts,  would   be  done  ii 

these  town  courts;    the  effect  of  which  would  bi 

that  the  number  of  judges  of  the  Supreme  Cour 

might  be   much    reduced,  and  the  expense  of  th 

superior  departments  of  Judiciary  essentially  les 

sened.      A  large  share  of  criminal  business,  too 

might  be  done  in    these  courts,  which  would  stiJ 

farther  relieve  the  higher  courts.     Great  expense 

loss  of  time,    and  inconvenience,  would  also   b 

avoided,  bv  leaving  all  appeal  causes  tried  in  th 

town  where  they  should  originate,  or  in  adjoinin 

town. 

Mr.  WORDEN:  How  does  the  gentleman  pro 
pose  to  have  the  causes  tried  in  these  town  cour 
reviewed  ? 

Mr.  FLANDERS:  By  having  them  carried  t 
the  court  of  review  upon  points  of  law,  the  sam 
as  causes  are  now  catried  from  Circuit  Courts  an 
Courts  of  Common  Pleas  to  the  Supreme  Cour 


If  any  error  in  law  was  committed  on  the  trial,  any 

evidence  improperly  admitted  or  rejected,  and  in 
ases  when  the  attendance  of  witnesses  could  not 
e  procured,  or  of  newly  discovered  evidence,  let 
new  trial  be  ordered.  "  This  pl.m  mny  lie  ddeci- 
e.  It  was  no  favorite  or  hobby  of  his.  He 
lought  that  something  ought  to  be  done,  and  this 
as  what  had  occurred  to  his  mind.  He  hoped 
entleman  would  direct  their  attention  to  this 
ulvject.  However  great  might  be.  the  improve 
lents  which  we  should  make  in  our  higher 
nurts,  the  mass  of  the  people  would  s«e  and  feel 
ttle  practical  benefit  from  such  improvement, 
iut  elevate  the  character  of  your  town  courts — 
ive  them  respectability,  capacity,  and^wnpartnl- 
y — and  you  will  introduce  a  reform  which  will 
ome  directly  home  to  the  interests  and  bosoms 
f  the  people,  and  confer  upon  the  community 
lessings  which  will  be  understood,  abroad,  and 
ppieciated  by  all  He  had  now  very  irnperfect- 
y  and  unsatisfactorily  gone  over  the  ground  which 
e  had  intended  to  occupy.  He  xvas  happy  to 
erceive  that  he  had  not  detained  the  committee 
ong,  and  in  conclusion,  tendered  his  thanks  for 
he  attention  with  which  ho  had  been  favored 

Mr.  O'CONOR  suggested  that  the  Convention 
hoiild  take  up  the  resolutions  referred  to  the 
ommittee  of  the  whole,  either  those  of  Mr. 
WHITE  or  those  of  Mr.  BROWN,  and  thus  be  able 
o  discuss  and  settle  some  distinct  principles  of  a 
udiciary.  The  matters  of  detail  could  be  easily 


adjusted  afterwards. 

After  some  cony 
COM  and  KIRKLAN 


ation  between  Messrs.  BAS- 
r.  O'C.  waived  his  motion. 


Mr.  WATERBURY  bne.flv  followed. 
The  committee  rose  and  reported  progress,  and 
he  Convention 
Adjourned  to  9  o'clock  to-morrow  morning. 

FRIDAY,  (Q2d  day,}  Aug.  14. 
Prayer  by  the  Rev.  Mr  PREBLE! 

MONIES  IN  CHANCERY. 

The  PRESIDENT  presented  a  letter  from  the 
Chancellor  enclosing  certain  papers  from  regis- 
ters and  clerks  relative  to  the  monies  in  Chan- 
cery, in  answer  to  the  resolution  of  Mr.  MANN, 
adopted  yesterday.  It  was  as  follows  : 

SARATOGA  SPRINGS,  August  12,  1848. 
Dear  Sir:—!  see  by  the  debates  in  the  Convention,  of 
Monday  and  Tuesday,  that  a  resolution  is  under  discus- 
sion in  relation  to  calling  upon  the  Register  and  Clerks  in 
Chancery,  for  a  statement  of  the  items  composing  the  fun-l 
under  the  control  of  the  Court  of  Chancery,  as  contained 
in  my  stntement  of  July  last.  It  would  n  quire  many 
month's  labor,  and  the  examination  ot  the  proceedings  of 
the  court  for  many  years  back,  to  get  a  much  more  per- 
feet  statement  of  the  nature  of  the  funds,  and  the  owners 
and  claimants  thereof,  than  is  contained  in  the  annual 
statements  which  thu  Registers  are  required  to  furnish  to 
the  Chancellor,  and  the  Clerks  to  the  Vice  Chancellors, 
under  the  127th  rule  of  the  court  I  have  procured  most  of 
those  annual  statements,  and  herewith  transmit  them  to 
you  for  the  use  of  the  Convention.  1  also  send  you  a 
statement  of  about  half  a  million,  which  is  deposited  in  the 
Trust  Company  by  Receivers  and  others,  under  the  or- 
ders of  the  court,  upon  trust,  to  accumulate,  for  the  benefit 
of  the  creditors  of  broken  banks  or  others,  who  may  event- 
ually be  found  entitled  to  the  same,  but  which  does  not 
stand  in  the  name  of  the  Registers  or  Cleiks,  and  will 
not  therefore  be  found  in  these  accounts.  The«e  ac- 
counts will,  I  think,  be  found  sufficient  to  iurnish  the 
Convention  with  th«  information  desired,  so  far  as  it  could 
be  obtained  from  the  records  of  the  court,  in  time  to  be  of 
any  use  in  the  deliberations.  Most  of  the  funds,  except  in 
suits  which  are  yet  pending  and  undetermined,  is  vested 
upon  trust,  to  pay  annual  allowances  out  of  tho  income, 

54 


634 


and  to  pay  over  the  principal,  after  the  termination  of  par 
ticular  estates  thereon,  or  to  accumulate  tor  the  benefit  o 
infants  until  they  become  of  age,  or  for  unknown  owners 
in  particular  suits,  or  for  creditors  who  are  entitled  to 
come  in  and  establish  their  claims,  &c.  It  will  also 
be  seen  by  the  accounts  of  the  Assistant  Register  and  Clerk 
ot  the  first  circuit,  that  there  is  about  twelve  thousand 
dollars,  which  he  denominates  the  dead  fund,  belonging 
probably  to  various  indiriduals  and  suitors,  who  are  un- 
known to  him,  and  for  which  no  claims  have  been  made 
for  the  last  six  years.  The  management  of  the  suitors' 
fund,  whicli  must  always  be  large  in  this  state,  and  partic- 
ularly in  New  York,  requires  great  care  to  preserve  it 
from  loss.  But  I  believe  no  losses  of  any  amount  have 
been  sustained  in  the  Court  of  Chancery,  though  many 
millions  have,  from  time  to  time,  passed  through  the  hands 
of  the  Registers  and  Clerks.  It  may,  however,  be  a  pro- 
per subject  for  the  consideration  of  the  Convention,  whe- 
ther it  may  not  be  expedient,  considering  the  importance 
of  the  subject,  to  have  an  officer  somewhat  analogous  to 
the  Accountant  General  in  England,  to  take  charge  of  alJ 
the  funds  brough<  into  court  and  required  to  be  invested  for 
the  benefit  of  suitors  in  all  of  the  courts  of  the  State. — 
Many  persons  who  would  make  very  competent  registers 
and  clerks  of  court,  would  not  have  the  financial  talent  and 
the  requisite  responsibility  to  manage  these  large  funds, 
and  to  keep  them  properly  invested  for  the  benefit  of  sui- 
tors and  the  unprotected  classes  to  whom  a  great  portion 
of  such  funds  generally  belong.  And  it  is  impossible  for 
the  courts  themselves  to  watch  over  and  superintend  such 
investments. 

I  am,  with  respect,  yours,  &c. 

R.  HYDE  WALWOKTH,  Chancellor. 
Hon.  JOHN  TRACY, 

President  of  the  Constitutional  Convention. 

It  was  referred  to  a  select  committee  of  three ; 
Mr.  MANN,  Mr.  TAGGART.  and  Mr. . 

Mr.  HART  presented  a  remonstrance  from  the 
trustees  of  Fulton  Academy,  Oswego  county, 
•against  the  withdrawal  of  ttie'  literature  fund  from 
academies  and  colleges.  Referred  to  the  commit- 
tee of  the  whole  having  in  charge  the  report  of 
the  committee  on  education. 

Mr.  W.  TAYLOR  presented  a  like  remon- 
strance from  the  trustees  of  Manlius  Academy ; 
which  received  a  like  reference. 

Mr.  RHOADES  called  attention  to  the  fact  that 
a  report  had  been  received  from  the  Chancellor 
in  obedience  to  a  resolution  of  the  Convention 
adopted  on  the  26th  of  June,  in  relation  to  the 
awregates  of  monies  in  Chancery,  and  which  had 
not  been  printed.  He  moved  to  refer  that  report 
together  with  the  communication  received  this 
morning.  Agreed  to. 

ACCOUNTANT  GENERAL. 

Mr.  WORD  EN  moved  that  the  select  commit- 
tee, to  wtiota  was  reteired  the  letter  and  papers 
from  the  Chancellor  relative  to  the  monies  now 
in  his  hands,  or  those  of  some  of  his  officers  of 
the  court  of  chancery,  be  instructed  to  take  into 
consideration,  and  to  report  upon  the  propriety  of 
the  appointment  of  an  accountant  general.  He 
(Mr.  VV.)  had  thrown  out  a  suggestion  some  days 
since,  that  a  public  officer  was  necessary  to  take 
charge  of  the  funds  paid  into  the  court  ot  chancery 
as  well  as  other  courts  ;  and  he  had  then  adverted 
to  tne  fact  that  in  England,  such  an  officer  was 
appointed  by  the  government  to  take  charge  of  all 
the  monies  paid  into  the  various  courts,  which 
monies  were  to  abide  the  result  of  litigation.— 
By  means  ot  such  an  office  the  difficulties 
with  which  they  have  met  in  this  country 
would  be  obviated;  for  then  there  would  be  a 
public  record  kept  of  all  these  monies,  and  the 
names  of  the  owners,  &c.,  so  that  every  person 
could  see  what  was  the  amount  and  to  whom  it 
belonged.  He  thought  that  there  was  much  in 


the  suggestion  of  the  Chancellor  that  registers 
and  clerks  are  not  the  proper  officers  to  have 
charge  of  or  to  manage  these  funds. 

Mr.  CHATFIELD  said  there  was  a  resolution 
offered  some  time  since  which  suggested  the  pro- 
priety of  having  all  these  moneys  paid  into  the 
treasury  of  the  State.  This  was  a  good  project, 
and  if  adopted,  there  would  be  no  necessity  for 
this  new  officer.  And  for  his  own  part,  he"  was 
not  in  iavor  of  appointing  officers,  unless  there 
was  a  real  necessity  for  them.  Again  there  is 
another  matter  which  requires  some  remedy ;  and 
that  is  the  cost  and  trouble  of  getting  money  out 
of  these  courts  when  it  is  once  paid  into  them. — 
If  it  was  paid  into  the  public  treasury,  a  simple 
order  of  the  court  would  be  all  that  was  necessa- 
ray  to  draw  the  money  out  of  it  at  any  time. 

Mr.  BROWN  said  that  there  could  exist  no 
necessity  for  the  appointment  of  an  accountant 
general  here.  The  funds  in  England,  in  Chance- 
ry, are  very  large.  Much  more  so  than  any  that 
we  have  here.  If  this  fund  is  to  be  borrowed  by 
the  State — (and  this  state  is  to  be  a  borrower  for 
twenty  years  to  come)  why  then,  when  this 
money  is  paid  into  court,  in  the  first  place  all 
that  is  necessary  to  be  done  is  to  transfer  it  to 
the  Comptroller  or  the  proper  officer.  You  will 
thus  create  a  bureau  and  it  will  have  to  have  one 
clerk.  If  you  have  an  accountant  general  he 
must  have  his  clerk,  and  an  office  and  room;  and 
this  fund  will  be  taxed  to  pay  all  this  expense. — 
When  a  decision  takes  place  then  the  Chancellor 
issues  an  order ;  that  order  is  presented  to  the 
proper  officer  and  the  money  is  paid.  This  is 
pretty  fair  for  all  parties,  to  the  government  and 
to  all;  and  it  would  relieve  the  clerks  and  regis- 
ters from  a  vast  deal  of  trouble. 

Mr.  WORDEN  did  not  differ  with  the  gentle- 
men from  Otsego  or  Orange.  All  agree  we 
must  have  these  funds  in  the  hands  of  some  one 
else  besides  these  clerks  and  registers.  Here  are 
$3,000,000 in  their  hands;  and  there  is  nearly  as 
large  an  amount  under  the  control  of  a  receiver; 
and  he  is  a  mere  dead  weight  to  prevent  its  dis- 
tribution; and  there  is  almost  as  large  a  sum  also 
under  the  charge  of  special  officers — such  as  re- 
ceivers of  broken  banks,  &c.  Now  he  wanted  all 
this  money  under  the  supervision  of  law  and  not 
in  the  hands  of  individuals  who  use  it  merely  to 
subserve  individual  interests.  Now  the  Chan- 
cellor throws  all  possible  obstacles  in  the  way  of 
getting  at  this  information.  But  we  must  have  it; 
and  make  a  different  disposition  of  the  funds. — 
The  Legislature  has  been  applied  to,  to  get  a  set- 
tlement of  these  funds,  but  without  effect.  He 
wanted  all  this  money  to  be  under  control  of  law 
and  not  left  under  control  of  clerks  and  irrespon- 
sible individuals.  The  gentleman  from  Chau- 
auque  (Mr.  PATTERSON)  has  $600,000  in  his 
hands  subject  to  the  decision  of  litigation.  It 
ought  not  to  be  there.  He  wanted  to  call  the 
attention  of  the  Convention  to  this  subject.  It 
might  be  questionable,  however,  whether  it 
would  be  wise  to  have  these  monies  mixed  up 
and  used  as  the  funds  of  the  State.  But  still  a 
remedy  should  be  provided  for  the  existing  evil. 
T^ie  resolution  was  then  adopted. 

SERGEANT-AT-ARMS. 
Mr.  MANN  offered  the  following :-— 


635 


•ivu.l,  That  HIKA.M  ALLEN  be  appointed  Secretary 
of  this  Convention,  to  take  effect  on  the  first  of  June  last. 
The  duties  of  Sergeant-at-Arms,  and  keeping  and  distribut- 
ing the  public  documents  shall  be  assigned  to  this  Secre- 
tnry  Mis  compensation  as  Secretary  shall  be  in  full  pay- 
ment for  his  services  as  Sergeant-at-Arms  and  Secretary  of 
this  Convention. 

Mr.  M.  said  that  the  Comptroller  refused  to  pay 
Mr.  Allen  as  Sergeant-at- Arms ;  he  had  some 
cniiscientious  scruples  about  it  and  it  would  be 
necessary  to  make  him  a  secretary  before  he  could 
get  his  pay  from  the  Comptroller. 

Mr.  PATTERSON  was  not  sure  but  that  the 
Comptroller  was  right,  although  he  came  in  direct 
conflict  with  the  gentleman  from  Herkimer  (Mr. 
HOFFMAN)  and  his  opinion,  who  solemnly  de- 
\-l.iml  at  the  commencement  of  the  session  that 
the  Convention  could  appoint  such  an  officer,  or 
that  he  was  necessary.  Now  the  Comptroller 
differs  with  this  gentleman  and  says  he  is  notne- 
y  ;  and  it  may  be  that  he  very  properly  dif- 
fers. But  as  the  man  had  faithfully  done  the 
work  and  ought  tc  have  his  pay  at  once ;  and  as 
the  Comptroller  has  taken  the  responsibility  of 
refusing  to  pay  him,  why  perhaps  it  may  be  pro- 
per to  call  him  a  Secretary,  and  that  will  satisfy 
the  scruples  of  the  Comptroller  perhaps. 

Mr.  WATERBURY  :  You  may  well  say  per- 
haps. 

Mr.  JONES :  Perhaps  it  may  become  necessa- 
ry to  call  the  clergyman  "  Secretaries"  before 
they  can  get  their  $3  a  day. 

Mr.  RICHMOND  :  Three  dollars  for  one  small 
prayer? 

Mr.  PATTERSON  :    Yes,  perhaps  it  may. 

Mr.  SIMMONS  could  not  vote  for  this  resolu- 
tion. He  could  not  possibly  believe  that  we  had 
a  Comptroller  so  weak  ihat  he  would  be  satisfied 
with  this  mere  change  of  the  name  of  an  officer, 
in  order  to  give  him  his  pay.  Now  if  the  Comp- 
trolU-r  will  n  •>*  pay  this  man,  why  the  next  Legis- 
lature certainly  will. 

Mr.  MANN  :  The  gentleman  from  Essex  (Mr. 
SJMMOIVS)  forgets  that  we  have  already  passed  a 
similar  resolution  calling  our  Librarian  a  Secretary 
— and  we  did  so  to  effect  the  same  object  that  we 
propose  to  Ho  here — to  have  the  officer  paid  lor  his 
services.  He  (Mr.  M.)  had  no  feeling  about  the 
matter  ;  he  merely  wished  to  do  what  was  right. 
The  man  had  done  his  work  well  and  ought  to 
have  his  pay. 

Mr.  SIMMONS  replied  that  there  might  be  some 
liitle  propriety  in  calling  a  Librarian  a  Secretary, 

E'M'liaps  ;  for  their  duties  are  somewhat  similar — 
ut  when  you  come  to  call  (his  officer— a  soldier — 
a  Secretary,  and  a  gun  a  goose  quill,  why  it  is  a 
little  too  small  business.  [Laughter.] 

The  resolution  was  adopted  almost  unanimously. 

Mr.  NICOLL  moved  to  have  printed  the  re- 
monstrance of  the  Trustees  of  Union  Hall  Acade- 
my in  relation  to  the  distribution  of  the  literary 
fund.  The  arguments  in  that  remonstance  were 
well  stated ;  and  contained  pretty  much  all  that 
could  be  said.  The  printing  of  it  would  very 
much  expedite  the  labors  of  the  committee. 

Mr.  PERKINS  thought  that  they  had  better 
not  commence  printing  these  remonstrances ; 
else  they  would  have  to  go  on  and  print  them  all. 
If  this  remonstrance  was  to  be  read  here  instead 
of  u  speech  on  the  subject,  it  would  answer  every 


Surpose,  and  be  much  better  than  most  speeches 
elivered  here. 

Mr.  NICOLL  said  that  he  wanted  this  remon- 
stance printed  because  it  was  much  fuller  than 
the  others.  It  was  not  a  long  document,  howev- 
er, and  the  printing  of  it  would  not  be  expensive^ 

The  motion  to  print  was  lost. 

The  Convention  then  went  into  committee  of 
the  whole  on  the 

REPORTS  OF  THE  JUDICIARY. 

Mr.  PERKINS  said  he  did  not  rise  to  discuss 
the  question  whether  the  powers  of  a  common 
law  court  and  of  the  court  of  chancery  can  be 
advantageously  blended  in  one  tribunal.  There 
can  be  no  doubt  chancery  and  common  law  pow- 
ers must  be  vested  in  one  or  more  tribunals — and 
f  think  it  certain  the  essential  modes  of  proceed- 
ings in  both  courts  must  be  preserved.  The 
mode  of  proceedings  in  the  courts  of  common 
law  is  exactly  adapted  to  trials  of  questions  of 
fact  by  a  jury.  The  pleadings  at  law,  if  well 
drawn,  are  a  brief  philosophic  statement  of  legal, 
ly  deduced  facts  from  the  circumstances  attend- 
ant upon  the  matter  complained  of,  and  which  if 
denied  by  the  opposite  party,  forms  an  issue  to  be 
tried  by  a  jury  at  circuit,all  the  circumstances  are 
thus  put  in  issue,  and  the  cause  goes  down  to  trial 
before  a  jury;  the  evidence  which  tends  either 
fo  support  or  deny  the  legal  fact  stated  in  the 
pleadings  are  given,  and  a  jury  decides  the  fact 
stated  in  the  pleadings  and  assesses  damages.  In 
chancery  the  complainant  states  all  the  circum- 
stances historically  upon  which  he  relies,  and  the 
defendant  makes  also  another  historical  state- 
ment of  the  circumstances  detailed  by  the  com- 
plainant, introducing  with  it  such  denials,  facts 
and  circumstances  as  he  relies  on  in  defence  — 
These  statements  are  drawn  up  with  great  skill 
and  are  very  like  the  pleas  of  eminent  counsel  in 
summing  up  a  cause  to  a  jury  after  the  evidence 
is  given.  It  makes  an  issue  utterly  incapable  of 
trial  by  jury  and  a  general  verdict.  Yet  chan- 
cery proceedings  cannot  in  all  cases  be  dispensed 
with.  In  cases  which  a  general  verdict  would 
not  determine  the  rights  of  parties,it  is  convenient 
if  not  necessary  to  have  chancery  forms  and 
proceedings.  They  are  better  adapted  to  the 
ends  of  justice  in  such  cases.  We  must  have 
decrees  for  specific  performance,  and  to  enjoin 
duties  and  correct  mistakes,  and  decide  causes 
too  complicated  and  rights  too  complex  for  the 
decisions  of  a  jury.  Jury  trials  have  been  the 
cornerstone  of  English  and  American  law  and 
liberty.  It  is  then  on  the  trial  of  those  rights 
brought  before  them,discussed,proved  and  adjudg- 
ed that  they  have  learned  and  come  to  understand 
the  theory  of  human  rights  and  the  defence  of 
them.  This  mode  of  trial  was  introduced  at  an 
early  day  by  our  English  ancestors;  the  pleadings 
have  been  (though  incumbered  with  useless 
words,)  adopted  by  such  minds  as  those  of  a 
Barren,  a  Coke  and  a  Mansfield  to  a  trial  by  jury. 
Not  so  with  the  forms  and  proceedings  of  the 
civil  law.  They  are  prepared  for  judges 
and  constitute  an  essential  part  of  the  trial.  We 
need  only  turn  to  an  ecclesiastical  tribunal  or 
court  marshal,  which  are  proceedings  much  after 
the  forms  of  the  civil  law,  with  their  charges  and 
specifications,  each  of  which  are  to  be  historically 
traced ;  and  no  facts  or  circumstances  can  be  proved 


636 


to  substantiate  the  principal  charge,  that  is  not 
accurately  detailed  in  the  specification.  We  in- 
variably see  learned  doctors  in  the  ecclesiastical 
courts,  and  experienced  and  learned  men  in  courts 
martial,  spending  days  and  weeks  in  solving  a 
question  ofguilt  or  innocence,  which  under  the 
substantial  rules  and  forms  of  the  common  law, 
a  justice  of  the  peace  and  a  jury  of  farmers  would 
more  satisfactorily  solve  in  two  hours.  It  will  be 
an  evil  hour  for  this  country,  when  we  abandon 
the  issues  of  the  common  law  and  a  jury,  for  the 
codes  and  forms  of  the  civil  law.  But  whether, 
when  necessary,  as  it  sometimes  is,  to  have  re- 
course to  the  forms  and  proceedings  of  chancery 
or  the  civil  law,  we  cannot  do  both  kinds  of  bu- 
siness in  the  same  court  with  advantage,  is 
another  question,  and  one  upon  which  I  cannot 
fully  satisfy  my  own  mind  and  assuredly  shall 
not  attempt  to  satisfy  the  minds  of  others.  I  rose 
at  this  time  because  no  other  member  of  the  com- 
mittee seemed  willing  now  to  address  it.  I  have 
a  proposition  which  I  wish  to  offer  as  a  substi- 
tute for  the  second  section  of  the  report  of  the 
chairman  of  the  committee  on  the  judiciary.  Mr, 
P.  here  read  the  "substitute  which  is  as  follows: 

^  I .  There  shall  be  a  Court  of  Appeals  .composed  of  nine 
judge*,  to  be  elected  by  plurality  of  votes,  at  a  general 
State  election. 

(j  2.  The  judges  of  the  Court  of  Appeals,  shall  respect- 
ively hold  circuit  courts,  and  courts  of  oyer  and  termmer, 
no  that  a  circuit  court,  and  court  of  oyer  and  terminer  shall 
be  held  by  some  one  of  them  in  each  of  the  counties  of  the 
State,  at  least  once  in  two  years. 

^  3.  When  holding  circuit  courts,  and  courts  of  oyer  and 
terminer,  the  judges  shall  have  all  the  powers  and  perform 
the  duties  enjoined  by  law  on  the  justices  of  the  Supreme 
Court;  but  they  shall  not  be  judges  of  district  courts,  in 
bane,  or  judges  of  the  Supreme  Cour'  in  term. 

^  4.  Any  MX  of  said  judges  may  hold  a  Court  of  Appeals; 
but  no  judgment  of  the  Supreme  Court  shall  be  reversed 
without  the  concurrence  of  two  more  judges  in  favor  ©1  re- 
versal, than  ot' affirmance. 

^  5.  At  the  first  gen«i  al  election  under  this  Constitution, 
each  elector  shall' be  entitled  to  vote  lor  six  oi  soid  judges, 
and  every  fourth  year  thereafter,  for  two  such  judges;  and 
at  such  first  election,  no  ballot  for  such  judges  shull  be 
counted,  upon  which  more  than  six  names  shall  be  con- 
tained, or  at  subsequent  elections,  more  than  two. 

^6.  The  judges  shall  be  so  classified  that  three  shall  be 
elected  every  fourth  year.  Vacancies,  otherwise  than  by 
expiration  of  the  term,  by  the  nomination  of  the  Governor 
and  approval  by  the  Sen'au-;  so  thatthiee  of  such  judge 
shall  always  be  elected  evrry  fourth  year. 

{3  7.  If  by  reason  ot  an  equality  in  the  number  of  voter 
cast,  there  should  fail  to  be  a  choice  by  plurality  of  votes 
ot  any  one  ormore  of  the  judges,  at  any  election,  the  GOT- 
ernor  shall  appoint  such  judge  or  judges  from  among  those 
having  an  equal  and  the  greatest  mimbsi  of  votes. 

It  will  be  perceived  I  propose  the  election  of 
nine  judges  of  the  court  of  appeals  by  general 
ticket  and  a  plurality  of  votes,  and  that  no  elec- 
tor shall  vote  for  more  than  six  of  those  judges 
— so  that  the  minority  will  always  elect  one-third 
of  those  judges.  This  will  divest  the  election  of 
judges  of  the  virulence  of  party,  and  secure  (I 
trust)  an  impartial  administration  of  justice.  The 
court  will  have  the  whole  people  for  its  constit- 
uency. They  are  to  hold  circuits  so  that  they 
will  be  known  and  judged  by  the  whole  people. 
They  will  not  be  mere  legal  monks,  always  pour- 
ing over  cases  and  antique  tomes  of  learning. — 
They  will  be  practically  associated  wilb  and  un- 
derstand trials  at  citfujts  and  the  wants  <>!  the 
people  and  the  spint  of  the  age.  The  talents  ot 
both  ol  the  great  political  parlies  will  be  centred 
in  this  court,  and  it  we  are  not  too  penurious  in 


he  salaries  we   give  them,  the  highest  talents  of 
he  State  will  be   secured  in   the    performance  of 
some  of  the  usual   duties.     They  are  not   by  my 
proposition  permitted  to  set  at  the  proposed  terms 
f  the  supreme  or  district  courts,  in  b'ank,  and  will 
be  in  a  condition  impartially  to  hear  the  appeals 
which  will  be  brought  before  them, and  know  how 
:o  respect  proceedings  at  circuit  courts,  as  well  as 
of  the  court  in  bank,  and  the  duties  to  be  perform- 
ed at  circuit  will  enable  us  to  dispense  with  eight 
if  the  judges  proposed  by  the  majority  of  the  com. 
mittee.    I  think  three  judges  for  each  of  the  eight 
districts  will    be  qmte  sufficient   tor  the  courts  in 
bank,  and  to  peitorm  the  residue  of  circuit  du- 
ies,  especially  if  proper  courts   and  officers  are 
provided  for  the   city  of  New  York,  and  if  we 
have   a  local  court  for  minor  local  matters,  and  in 
some  cases  taking  testimony  in  chancery  causes, 
which   I   apprehend    may  be  found    necessary. 
These   are   the  advantages  I   anticipate  from  the 
proposition   I  make  for  constituting  the  court  of 
appeals.     I   will  now  state  my  objections  to  the 
organization  of  that  court  as  proposed  by  the  ma- 
jority of  the  committee.     The  four  judges  pro- 
posed to  be  elected  will  not  be  authorized  to  per- 
form any  judicial  duties  except  in  the  court  of  ap- 
peals, while  if  I  understand  the  report  it  is  con- 
templated the  judges  to  be  elected  from  the  Dis- 
trict justices  of  the  supreme  court  will  still  remain 
judges  of  the  latter  court  and  perform  so  many  of 
its  duties  as  their  time  will  permit.     If  this  is  not 
so  then  we  must  have  eight  judges  on  large  sala- 
ries doing  only  appellate  business  and  unless  ap- 
pellate business  shall  greatly  increase  under  the 
new  organization  they  will  not  be  employed  one- 
half  their  time,  for  under  the  organization  of  our 
courts  under  the  present  Constitution  the  court 
for  the  correction  of  enors  does  not  sit  more  than 
eight  weeks  in  the   year,  and  the  chancellor  and 
judges   of  the  supreme  court  in  addition  to  the 
great  duties  they   perform   in   their  respective 
courts,  give  the  leading  opinions  in  cases  brought 
to  the   court  for  the   correction    of  errors.     It 
was   intimated   by    the   chairman   on   presenting 
the  repoit  of  the  com  mittee,  that  it  was  probable 
the  four  judges  elected  by  the  State  would  be  lay- 
men.    If  the  design  is  that  these  laymen   should 
be    a  kind  of  law  jury  to   decide   difierences  be- 
tween learned  judges  in    the  courts  of  law   and 
equity,  then  I  submit  they  are  not  sufficiently  nu- 
merous  for  the    purpose  designed.     If  it  be  de- 
_igned  they  shall  be  eminent  counsellors  and  ex- 
pert in  the    law  and  equity  business  ot  the  State, 
I  confidently    believe  they  cannot  be   induced   to 
accept  office  and  retire  from  their  practice  for  any 
salary  we  can  give  there,  and  for  so  short  a  period 
as  it  is  proposed  to  have  their  term  of  office.    For 
I  assume  that  under  the  project  of  the  committee, 
no   man  can  be  elected  except  ne  belongs  to   the 
political  majority  which  may  be  ascendant  at  the 
time  of  the  election.     In  this  State  there  can   be 
no  such  confidence  in   the  political  ascendancy  of 
any  party  as  to  induce  a  man  to  retire  from  a   lu- 
crative business  and  profession  in  the  expectation 
of  a  re-election.     The  whole  arrangement  for  the 
felection  or  appointment,  of  Judges  in  all  the  courts 
will  inevitably  result  in  party  selections  in  the  state 
or  appellate  judges,  arid  in  the  districts  in  which 


the  judges  of  the  Supreme 


rourt  are  to  be  elected. 


project  submitted  by  me  would  abate    party 


637 


rancor,  and  it  it  were  t  xtended  to  the  choice  ol 
all  the  judges  of  the  Supreme  court  ol'  each  po- 
litical party,  would  have  some  of  its  favorite  and 
eminent  men  on  the  bench  in  every  section  of  the 
State.  The  most  eminent  men  of  both  parties 
would  be  brought  into  action  in  our  judiciary  sys- 
tem. Confidence  and  respect  would  be  shown  to 
their  decisions  everywhere,  and  bills  of  exceptions 
and  appeals  would  be  comparatively  few.— 
Without  such  confidence  no  end  can  be  put 
to  a  law  suit  until  by  certiorari,  bills  of  excep- 
tion and  appeal,  the  cause  has  reached  the  last 
destiny  provided  for  it  in  the  constitution  — 
The  plan  of  the  majority  of  the  committee  may  be 
easily  changed  to  meet  these  views.  If  the  elec- 
tion or  appointment  of  our  judges  is  not  intended 
to  be  a  rancorous  and  partizan  matter,  it  must  be 
changed.  It'  we  intend  to  have  an  able  and  im- 
partial  administration  of  justice,  in  which  the 
confidence  of  the  whole  people  will  repose,  it  must 
be  changed  In  some  sense  we  are  all  political 
partizans;  but  I  trust  there  are  none  of  us  who  do 
not  desire  an  impartial  and  enlightened  adminis- 
tration of  justice.  Without  it  neither  liberty  can 
be  maintained  or  property  secured.  As  a  people 
we  are  working  out  a  great  problem  in  human  ex- 
istence. If  we  can  preserve  a  pure  and  enlight- 
ened judiciary  and  our  laws  from  aKrarianism  on 
the  one  hand  and  monopoly  on  the  other,  we  shall 
succeed.  Failing  in  this,  military  despotism  and 
a  night  of  darkness  broods  over  our  country  and 
our  posterity. 

Mr.  LOOMIS  desired  to  answer  the  gentlemen 
from  Erie,  (Mr.  STOW)  and  Chautauque,  (Mr. 
MARVIN.)  The  gentleman  from  Chautauque,  ob- 
jects to  the  system  proposed  by  the  committee, 
not  because  the  officers  were  not  numerous 
enough,  inasmuch  as  he  proposes  a  less  number, 
but  because  ot  fhe  organization  of  the  courts,  as  not 
being  calculated  to  make  the  whole  system  effec- 
tive, and  atle  to  do  the  greatest  amount  of  busi- 
ness. In  this  respect  he,  (Mr.  L.)  differed  en 
tirely  from  the  gentleman.  He  did  not  believe  it 
possible  or  within  the  scope  ot  human  ingenuity 
to  devise  a  system,  by  which  a  given  number 
of  judges,  divided  into  sepaiate  court*,  would 
do  the  same  amount  of  business  that  they  would, 
if  united  in  one  court.  The  judges  being  all  uni 
ted  in  a  single  court,  might  direct  their  energies  to 
those  places  in  the  State  where  business  accumu 
lates,  and  may  withdraw  from  other  sections  the 
lorce  not  there  occupied.  If  they  are  divided  in 
to  distinct  courts,  with  different  jurisdiction,  it 
would  require  legislation  to  equalize  business  be- 
tween the  several  tribunals.  When  this  subjec 
was  under  discussion  before  the  committee,  it  was 
deemed  expedient  by  the  members,  when  it  was 
proposed  to  have  two  courts  for  the  trial  of  issues 
t»f  fact,  to  authorize  the  Legislature  to  make  such 
provision  by  way  of  costs  and  otherwise  as  might 
secure  an  equal  amount  of  business  in  these 
courts.  And  in  his  judgment  it  was  a  necessary 
provision  too.  The  gmtlernan  from  Chautauque 
proposes  in  his  plan  to  have  nine  Supreme  Court 
judges,  and  to  divide  the  State  into  two  parts — ha- 
ving two  separate  Supreme  courts ;  the  judges  in 
each  half  of  the  State  to  belong  to  that  half,  and  tc 
have  no  jurisdiction  in  the  other  half.  He  propos- 
es, however,  to  have  a  common  chief  justice,  to 
preside  in  both  courts.  If  we  look  at  the  statistics 


)resented  to  this  convention  by  the  Chairman  of 
he  judiciary  committee,  (Mr.  RUGGLES)  and  also 
)y  the  gentleman  from  Tioga,  (Mr.  TAYLOR,)  it 
vould  be  found  that  the  accumulation  of  business 
n  the  courts,  to  be  decided  upon  in  bane,  was 
enough,  and  more  than  enough,  to  occupy  two 
such  courts  all  the  time.  There  were  nine  hun- 
dred cases  on  the  calendar,  now,  and  he  supposed 
;hat  did  not  include  a  number  perhaps  equally 
arge  but  not  placed  the  calendar,  Could  two  tri- 
bunals keep  up  to  that  ?  The  gentleman  propos- 
es in  addition  to  the  four  judges  of  each  court,  to 
lave  a  chief  justice  in  each  district.  And  for 
what  purpose — to  preside  in  one  court,  while  the 
judges  are  writing  out  their  opinions  in  the  other, 
and  vice  versa.  What  is  the  use  of  this  chief  jus- 
tice, what  are  his  functions,  and  what  benefit  was 
be  except  to  give  off-hand  opinions.  He  may  in 
that  respect  have  a  salutary  influence — as  a  presi- 
ding officer,  he  can  help  in  making  off-hand  de- 
cisions. But  he  was  not  the  officer  to  per- 
form the  laborious  duties  of  the  office — to 
nvestigate  those  deep  fundamental  principles, 
and  legal  authorities  in  his  chambers,  or  bribery — 
if  the  number  of  causes  carried  to  that  court 
ere  any  thing  like  equal  to  those  under  the  pre- 
sent system,  both  these  courts  would  be  fully 
and  constantly  employed.  But  this  was  not  all — 
he  requires  the  chief  Justice  of  the  court 
and  some  of  the  judges  of  it,  and  also  of  the  court 
of  Chancery  to  sit  in  the  court  of  errors.  If  they 
are  to  be  so  occupied  in  the  Supreme  courts  what 
time  will  they  have  to  sit  in  the  court  of  appeals? 
Gentlemen  can  not  make  out  that  the  business  of 
the  Supreme  Court  is  to  be  so  diminished  by  any 
system  of  jurisprudence  as  not  to  occupy  the 
judges  of  that  tribunal  all  the  time.  The  gen- 
tleman says  that  the  court  of  errors  proposed 
by  the  committee,  was  immediately  to  be  broken 
down  and  swamped  with  business.  The  court 
of  errors  as  heretofore  organized  had  been  com- 
posed of  a  body  of  men  certainly  much  less  effi- 
cient for  the  rapid  transaction  of  business  than 
the  one  proposed  by  the  committee,  for  they 
woul !  be  eminent  lawyers  capable  of  appreciat- 
ing a  principle  of  law  at  once,  without  having 
every  point  distinctly  argued  as  was  now  the 
practice.  It  has  required  a  longer  time  to  dis- 
pose of  a  cause  in  that  court  than  it  would  if  the 
court  had  been  constituted  as  now  proposed.  And 
yet  they  had  performed  legislation  for  four  months 
in  the  year,  and  having  three  months  leisure, 
have  accomplished  all  their  business  before 
them.  Will  not  a  court  devoted  exclusively 
to  that  business,  composed  of  men  learned  in 
the  law,  educated  to  that  profession,  be  able  to  do 
the  business  before  them.  He  had  not  the  slight- 
est doubt  about  it.  But  this  was  not  all  the  gen- 
tleman from  Chautauque  proposed— that  these 
supreme  court  judges  through  the  State,  shall 
not  only  constitute  the  supreme  court  of  the 
State,  and  the  court  for  the  Correction  of  Er- 
rors, but  shall  hold  the  circuits  throughout  the 
State,  and  in  every  county.  He  Mr.  L.  hoped 
that  we  would  have  circuit  courts  rather  oftener 
than  once  ayear,but  even  this  would  be  utterly  im- 
possible under  the  gentleman's  system.  They 
could  never  hold  the  circuits,  or  if  ever  but  few 
and  far  between,  and  practically  therefore  with 
Ihu  other  courts  with  which  tlie  gentleman  pro- 


638 


poses  to  relieve  it,  it  would  be  the  present  supreme 
court,  to  hold  law  terms  and  do  the  appellate 
business  and  never  holding  a  circuit  but  leaving 
that  business  to  the  district  judges.  The  gentle- 
man from  Erie  (Mr.  STOW)  whcfhad  addressed  the 
Convention  this  morning,  proposes  somewhat  to 
enlarge  the  number  of  judges,  and  to  have  instead 
of  nine,  fourteen,  though  still  dividing  the  State 
into  two  judicial  districts,  two  supreme  courts, 
and  still  constituting  the  same  judges  members 
of  the  Court  of  Errors,  and  to  hold  circuits  and  as 
presiding  officers  at  the  courts  of  Over  and  Termi- 
ner.  The  same  objections  that  he  applied  to  the 
system  of  the  gentleman  from  Chautauque,  appli- 
ed with  less  force  to  be  sure,  owing  to  increase  of 
judges  to  that  of  the  gentleman  from  Erie.  The 
gentleman  from  Chautauque  proposed  to  have  two 
or  three  chancellors,  which  he  thought  would 

be  amply  sufficient  to  do  the  business. 

He  would  ask  how  many  Chancellors  we 
had  now.  We  have  it  is  said  but  one,  yet 
we  have  two  vice  Chancellors  and  the  as- 
sistant Vice  Chancellor  of  New  York,  whose 
business  is  confined  almost  exclusively  to 
the  hearing  of-  causes,  in  lieu  of  the  Chan- 
cellor, and  yet  every  body  considered  that  court 
to  be  utterly  overwhelmed  with  business.  Tfcere 
were  now,  therefore,  in  fact  four  Chancellors 
whose  business  was  confined  exclusively  to  that 
jurisdiction,  besides  the  circuit,  judges  who  also 
have  equity  jurisdiction,  and  have  full  employ- 
ment. In  his  opinion  the  business  of  the  Court 
of  Chancery  was  destined  to  accumulate  as  much 
within  the  next  ten  years  as  in  the  last  ten  years, 
if  it  was  continued  as  a  separate  system. — 
There  was  in  the  nature  of  its  jurisdiction,  and 
in  the  character  of  its  mode  of  proceeding,  when 
we  abolished  its  absurd  system  of  taking  evidence, 
and  shortened  and  simplified  other  forms  that 
would  command  public  attention  and  draw  within 
its  vortex  the  business  of  the  country.  And  he 

j  concurred  entirely  with  the  gentleman  from  New 
York,  (Mr.  O'CoNOR,)  that  in  case  the  practice 
in  law  and  equity  were  to  be  united  and  blended 
into  one  system,  we  should  rather  approximate  to 

?  the  system  of  the  Court  of  Chancery  than  to  that 
of  the  common  law — that  it  was  the  rational, 

,  the  equitable  system,  and  the  one  which  provided 
a  remedy  according  to  the  exigencies  of  the 
case,  and  one  which  is  most  wanted.  The  gen- 
tleman's two  or  three  chancellors  would  be  en- 
tirely inadequate  to  the  performance  of  the  duties 
of  that  branch  of  business.  How  was  it  with  the 
report  of  committee  ?  That  proposed  to  give  these 
same  powers  and  duties  to  the  thirty-two  circuit 
judges,giving  it  room  to  expand  ad  libitum^s  oc- 
casion might  require.  If  the  equity  practice  was 
to  be  kept  distinct,and  should  it  predominate  there 
would  be  a  court  for  it,  and  so  also  with  the  law 
system.  The  judges  could  place  themselves  on 
trie  one  side  or  the  other,  as  business  should  re- 
quire  and  thus  be  perfectly  adequate  to  the  wants 
of  the  community.  The  beauty  of  the  plan 
proposed  by  I  he  Judiciary  committee  would 
be  its  expansibility  in  any  direction  in  which 
the  public  business  rnay  require.  Again,  both 
of  these  gentlemen  and  others  have  advocated 
a  system  of  district  judges  to  hold  courts,  at  least 
that  was  his,  Mr.  L.'s,  construction  of  it.  They 
called  it  a  county  court,  he  called  it  a  district 


court.  Mr.  L.  characterised  it  as  a  double  system 
of  circuits — one  class  held  by  a  presiding  judge 
elected  in  a  particular  district,  and  the  other  held 
by  the  supreme  court  judges— a  system  entail- 
ing upon  counties  a  double  expense  and  upon  par- 
ties and  witness  the  inconvedience  of  assem- 
bling a  second  time  to  attend  trials.  He  could 
see  no  good  reason  for  calling  one  of  them  a  cir- 
cuit court  and  the  other  county  courts — nor  any 
reason  why  all  causes  ready  for  trial  should  not 
be  tried  whenever  a  court  was  held  in  the 
county.  Mr.  L.  further  contrasted  the  plan 
of  the  judiciary  committee  with  that  of  Mr. 
MARVIN,  objecting  particularly  to  that  section 
of  the  latter  which  contemplated  making  the 
surrogate  and  a  supreme  court  commissioner  a 
part  of  their  county  court — their  offices  to  be 
supported  by  fees,  or  to  peddle  out  justice.  Mr. 
L.  had  hoped  that  such  a  proposition  would  not 
have  found  an  advocate  here.  Mr.  L.  insisted 
that  the  causes  of  the  inefficiency  of  the  county 
court  lay  in  the  system  itself  and  not  in  the  want 
of  material /or  judges.  It  was  neither  an  office 
of  honor  or  merit,  and  would  not  command  the 
requisite  talent.  He  next  proceeded  to  notice  the 
position  of  the  gentleman  from  Erie,  in  favor  of  se- 
parate jurisdiction  of  law  and  equity,  who  assum- 
ed that  the  decisions  of  a  court  of  chancery  were  a 
matter  of  discretion — that  the  chancellor  under- 
took to  do  right  without  reference  to  law — not 
that  he  decided  against  law  ;  but  that  the  system 
allowed  him  to  do  as  he  pleased  in  certain  cases. 
But,  if  Mr  L.  kne  v  anything  of  the  principles 
of  equity,  they  were  as  well  settled  as  those  of  the 
common  law.  Nor  could  he  constiue  away  a  stat- 
ute law  as  the  gentleman  supposed.  He  was  bound 
just  as  much  by  rigid  rules  of  law  as  the  common 
Jaw  judge.  And  whatever  might  be  said  of  the 
stretching  of  the  power  of  our  court  of  chancery, 
the  supreme  couit  had  kept  pace  with  it  step  by 
step.  Both  gentlemen  went  as  tar  as  he  did 
in  desiring  simplicity  and  directness  in  the  forms 
of  proceeding.  The  difference  between  them  and 
him 'was,  that  they  desired  separate  and  distinct 
forms  for  eacn  of  these  two  jurisdictions — and  yet 
he  ventured  to  say  that  if  either  of  them  could 
divest  themselves  of  the  influences  of  education, 
and  their  predilections  for  separate  and  distinct 
forms  of  practice,  and  would  sit  down  and  maik 
out  a  mode  of  procedure,  they  would  find  that 
there  was  no  greater  necessity  for  a  separate 
system  by  the  distinction  between  cases  in 
law  and  cases  in  equity,  than  between  cases  of 
tort  and  cases  of  assumpsit.  But  no  one  proposed 
to  make  a  set  of  forms  fur  all  cases.  The  forms 
would  vary  with  the  peculiarities  of  the  case. — 
He  believed  we  wanted  one  court  of  last  resort  to 
settle  great  principle's  of  law — not  mere  techni- 
cal questions  as  to  foiins  of  piocedure.  Then  we 
wanted  another  court  which  should  diffuse  itself 
over  this  broad  state  to  try  issues  of  fact,  and  have 
original  jurisdictions.  These  were  the  main  tea. 
tures  of  the  plan  of  the  judiciary  committee,  and 
he  doubted  not  it  would  piove,  with  some  modifi- 
cation in  detail,  a  convenient  and  efficient  plan. 
The  objection  ot  the  gentleman  from  St.  Lawrence 
that  under  this,  and  most  of  the  other  schemes,  a 
judge  might  sit  in  review  of  his  own  decision,  it 
would  be  easy  to  obviate  by  an  express  prohibi- 
tion. 


639 


Mr.  PERKINS  said  that  his  objection  was  that 
the  judge  who  decided  the  cause  in  bane  might 
sit  in  the  court  of  review. 

Mr.  LOOMIS  said  that  made  no  difference. — 
Nothing  was  easier  than  to  provide  that  the  judge 
in  such  a  case  should  not  have  a  voice  in  the  fi- 
nal decision  in  the  court  of  appeals — though  he 
was  not  sure  that  it  ought  to  disqualify  a  judge 
because  he  happened  to  have  heard  the  case,  and 
had  bestowed  some  thought  upon  it.  He  was  not 
aware  of  a  court  of  appeals  anywhere  none  of 
whom  were  judges  of  other  courts.  Mr.  L. 
said,  in  conclusion,  that  he  did  not  expect  this 
article  would  be  adopted  without  amendment ; 
but  he  had  thought  it  proper  that  objections  to  it, 
which  he  thought  untenable,  should  be  answered 
as  they  were  made,  that  the  Convention  might  see 
both  sides. 

Mr.  MARVIN  wished  to  remove  the  objections 
the  gentleman  from  Herkimer  had  made  to  the 
Supreme  Court  which  he  proposed,  upon  the 
ground  of  its  not  containing  sufficient  force.  Gen- 
tlemen familiar  with  judicial  proceedings  had 
been  of  opinion,  that  simply  dividing  the  court 
into  two  parts  would  cure  this  evil,  of  the  courts 
being  blocked  up,  and  that  in  a  few  years  you 
might  consolidate  them  into  one,  and  let  them 
discharge  circuit  duty.  But  Mr.  M.  said  he  pro- 
posed to  occupy  fifteen  minutes,  on  another  occa- 
sion, in  indicating  what  the  reform  would  be  or 
might  be  made  under  his  plan. 

Mr.  HARRIS  then  obtained  the  floor,  and  moved 
that  the  committee  rise,  which  was  done. 

Mr.  PERKINS  moved  the  printing  of  the  sub- 
stitute for  section  three  of  the  committee's  re 
port.  Agreed  to. 

The  Convention  then  took  a  recess. 


TERNOON  SESSION. 
Mr.  HARRIS  said  it  had  been  his  lot,  occasion- 
ly,  to  take  part  in  the  discussion  of  important 
questions,  but  never  before  had  he  been  called  to 
act  upon  a  subject  whose  transcendant  importance 
impressed  itself  so  deeply  upon  his  own  mind. — 
We  had,  at  length,  reached  the  culminating  point 
of  our  labors — the  great  work  for  which  the  Con- 
vention had  been  called  and  which  we  had  been 
commissioned  to  execute.  Other  reforms  had 
been  deemed  necessary — other  questions  of  great 
importance  may  yet  claim  our  attention — but  this 
was  one  great  work — a  work  which  deeply  con- 
cerned all  classes  of  community.  The  farmer 
the  merchant,  the  mechanic,  the  artist,  the  la- 
borer and  his  employer — the  wise  and  the  igno 
rant — the  great  and  the  small — the  rich  and  the 
poor — all  alike  were  vitally  interested  in  the 
great  work  of  reform  in  which  we  were  now  en 
gaged.  It  was  only  by  an  enlightened  and  faith 
t'ul  administration  of  the  law  that  society  can  be 
bound  together,  its  diversified  interests  protectec 
and  peace  and  harmony  preserved. 

Nor  are  our  labors  to  affect  merely  the  millions 
who   constitute   the   present  population   of  thi 
State.     Other  States  yet  to  be  formed  from   ou 
great  public  domain,  and  peopled   with  the  son 
and  daughters  of  freedom,  will   look  to  us  for  a 
mode  upon  which  to  organize  their  new  govern 
ments.     Posterity,  too,  had  a  deep  interest  in  the 
result  of  our  labors.      The  system   which  should 
be  adopted  by  this  Convention  would  exert  an 


mportant  influence,  not  only  on  the  millions  of 
ur  constituents,  but  upon  the  generations  who 
vere  to  succeed  us. 

Upon  this  subject,  too,  the  public  attention  is 
nxiously  fixed  upon  us.  Their  hopes  and  fears 
re  centred  upon  our  action  in  this  branch  of  our 
abors.  He  would  approach  the  discussion  of. 
hese  important  questions,  discarding  all  selfish 
mrposes,  and  in  a  deep  sense  of  the  magnitude  of 
he  trust  devolved  upon  us. 

That  some  reform  in  our  present  judiciary  sys- 
em  is  necessary  all  agree — all  admit  that  some 
change  is  now  inevitable.  No  man  is  to  be  found, 
either  in  or  out  of  this  Convention,  who  will 
itand  up  the  unflinching  advocate  of  the  present 
ystem.  Upon  other  questions  men  differ,  but 
lere,  the  demand  for  reform  comes  up  to  us  with 
united  voice  from  every  quarter.  Even  those  who, 
bnd  of  ease  and  quiet,  would  pursue  the  tranquil 
:enor  of  their  lives  in  the  same  steps  with  their 
athers,  and  because  their  fathers  walked  in  them, 
even  they  admit  that  here  some  change  is  neces- 
sary. Those  who  are  educated  with  the  most 
profound  reverence  for  established  things,  here 
oin  in  the  cry  for  improvement.  Their  love  of 
•epose — their  abhorrence  of  change,  is  overcome 
jy  the  emergency  of  the  case.  There  was  not 
ic  trusted,  a  member  of  this  Convention  who  did 
lot  cherish  an  ardent  desire  to  engage  in  this 
great  work,  with  elevated  views  and  in  a  manner 
lonorable  to  himself  and  useful  to  his  age  and  his 
country. 

The  wisest  institutions  are  no  longer  useful 
than  they  retain  the  public  confidence.  It  had 
seen  well  observed  by  a  celebrated  writer  that 
'next  to  doing  right  the  great  object  in  the 
administration  of  justice,  should  be  to  give  pub- 
lic satisfaction"  The  present  judiciary  system 
had  not  secured  the  public  confidence.  So  far 
from  giving  public  satisfaction,  it  had  been  con- 
demned with  entire  unanimity,  and  the  great 
object  of  our  assembling  was  to  wipe  it  out  ot 
our  Constitution  and  substitute  in  its  place  some- 
thing which  shall  be  better  adapted  to  the  wants 
and  circumstances  of  the  people  of  this  State. — 
It  would  be  unnecessary,  therefore,  to  occupy 
the  time  of  the  committee  with  an  examination 
of  the  present  system,  or  an  attempt  to  point  out 
its  defects.  Whatever  its  defects,  or  however 
perfect  it  may  be,  the  public  voice  demands  a 
change,  and  we  should  only  discharge  our  duty 
to  our  constituents,  by  devising  a  new  system 
which  shall  in  its  practical  operation  effectually 
maintain  the  supremacy  of  law,  and  secure  to 
every  citizen,  however  humble,  the  enjoyment  of 
all  his  natural  and  social  rights. 

Mr.  H.  said  that  for  eighteen  years  he  had 
been  an  humble  member  of  the  legal  profession, 
and  in  his  practice  had  had  some  opportunity  to 
see  and  to  feel  the  evils  of  the  present  system. 
From  the  time  it  was  known  to  him  that  he  was 
to  be  honored  with  a  seat  in  this  body,  he  had 
anxiously  turned  his  attention  to  this  great  ques- 
tion. He  had,  however,  drawn  out  no  plan. — 
He  came  here  wedded  to  no  particular  scheme. 
Had  it  been  his  lot  to  have  been  placed  upon  the 
committee  to  whom  that  duty  was  assign- 
ed, he  might  have  felt  it  incumbent  on  him  to 
devise,  as  well  as  he  might  a  system  for  the  con- 
sideration of  the  committee;  but  others,  more 


640 


competent  having  been  selected  for  that  purpose 
he  had  preferred  to  hold  himself  uncommittet 
until  the  report  of  the  committee  should  be  pre- 
sented, and  then  bring  the  best  faculties  of  his 
mind  to  the  examination  of  such  propositions  as 
should  be  brought  before  the  Convention  for  its 
consideration.  Still,  in  his  reflections  on  this 
important  subject,  he  had  fixed  upon  some  grea 
measures  of  reform  which  any  system  must  pos- 
sess, in  order  to  have  the  approval  of  his  judgment. 
Among  the  changes  he  deemed  to  be  of  the 
greatest  importance,  and  without  which  no  plan 
would  meet  with  his  approbation,  were  the  fol- 
lowing-^-first,  the  election  of  judges  by  the  people 
for  a  definite  term,  which  should  not  be  very  short, 
nor  yet  so  long  as  to  place  an  incumbent  who 
should  fail  to  discharge  the  duties  of  the  office  to 
the  public  satisfaction,  beyond  the  reach  of  the 
appointing  power.  Secondly,  a  union  of  law  and 
equity  jurisdiction  in  the  same  tribunal.  Third- 

(ly,  uniformity  in  the  administration  of  justice, 
securing  so  far  as  practicable,  the  same  decision 
of  the  same  questions  throughout  the  State.  In 
this  respect,  Mr.  H.  was  happy  to  state,  in  ad- 
vance, that  the  general  plan  of  the  majority  of 
the  committee  on  the  judiciary,  corresponded  very 
nearly  with  the  results  of  his  own  previous  re- 
flections. ,s  And  fourthly,  a  simplification  of  the 
,^?actrce"~bf  our  courts  of  law  and  equity,  so  as  ma- 
jterially  to  reduce'  the  expense  of  legal  proceed- 
ings. He  regretted  that  so  cardinal  a  measure  in 
the  work  of  reform  in  which  we  were  engaged 
had  been  omitted  in  the  report  of  the  committee 
— for  without  it,  however  wise  or  well  conceived 
any  plan,  may  be,  in  other  respects,  he  should 
regard  it  as  radically  defective.  No  matter  how 
well  adapted  any  system  might  be  to  attain  its 
object,  he  maintained,  that  without  essential 
changes  in  the  present*  forms  of  practice,  it  would 
prove  a  failure — it  could  not  accomplish  the  end 
for  which  it  was  designed.  The  cumbrous  and 
unwieldy  machinery  of  our  present  forms  of 
practice,  would  crush  any  system.  Construct 
your  judiciary  system  as  you  may — arrange  and 
multiply  the  judges  as  you  may,  if  they  are  sent 
forth  to  these  labors  burdened  and  crippled  with 
the  unmanageable  armor  in  which  the  present 
forms  of  practice  would  encase  them,  your  great- 
est jurists,  the  strongest  men,  would  soon  find 
themselves  felled  to  the  ground  by  its  weight. — 
Our  legal  proceedings  must  be  simplified — the 
administration  of  justice  must  be  cheapened  or  all 
our  efforts  would  prove  abortive.  It  was  here 
that  our  present  judiciary  had  made  shipwreck. 
Upon  this  rock  they  had  split.  Ill  adapted  as  he 
conceived  our  present  courts  to  be,  to  the  great 
ends  for  which  they  were  intended,  the  time  was, 
when  even  those  courts,  with  all  the  defects  of 
their  system,  might,  by  thorough  and  persevering 
reforms  in  their  rules  of  practice — curtailing  and 
simplifying  the  machinery  by  which  legal  pro- 
ceedings were  to  be  conducted,  and  thus  expedi- 
ting business  and  reducing  the  expenses,  have 
preserved  themselves  from  that  condemnation 
which  the  public  voice  with  such  unexampled 
unanimity  has  passed  upon  them,  and  from  whose 
judgment  there  can  be  no  appeal.  ' 

No  man  entertained  a  higner  respect  for  our  ju- 
diciary than  himself  ;  no  man  more  highly  appre- 
ciated tue  purity,  the  elevated  dignity,  the  exalted 


worth  of  the  present  ben^Uof  our  couris,  than  he 
did.  Tnere  were  among  them  men  whose  trea- 
sures of  legal  learning  would  adorn  any  court  in 
his  or  any  other  munt.v.  And  yH  lie  t\>\\  him- 
self constrained  to  say,  (hat  these  courts  were,  to 
a  great  extent,  chargeable  with  the  overthrow  of 
our  present  judiciary  system.  Had  they  adopted 
such  reforms  in  the  administration  of  justice  as 
the  spirit  of  the  age  demanded,  they  might  have 
saved  the  system. 

Previous  to  the  revision  of  our  statutes,  in  1S30, 
the  revisors,  in  their  report,  distinctly  called  the 
attention  of  the  Legislature  to  the  subject,  ex- 
pressing a  decided  opinion  that  great  improve- 
ments might  and  ought  to  be  made  in  the  practice 
of  the  court  of  chancery  and  the  supreme  court, 
and  recommending  that  the  Legislature  should 
impose  by  law  upon  the  chancellors  and  judges, 
the  duty  of  a  periodical  revision  of  the  rules  and 
practice  of  their  courts,  with  a  view  to  such  im- 
provements. The  Legislature  expressed  their  de- 
sire for  such  improvements  by  requiring  those 
courts,  within  two  years,  and  at  the  expiration  of 
every  seven  years  thereafter,  to  revise  their  rules, 
with  a  view,  so  rar  as  practicable,  to  improve  their 
practice,  by  abolishing  fictitious  and  unnecessaiy 
process  and  proceedings,  expediting  the  decision 
of  causes,  diminishing  costs,  and  remedying  such 
abuses  and  imperfections  as  might  be  found  to  ex- 
ist in  the  practice,  in  any  class  of  suits  cognizable 
in  those  courts.  Mr.  H-  did  not  hesitate  to  say, 
that,  odious  as  was  the  court  of  chancery  now,  had 
the  chancellor,  in  the  spirit  of  the  enactments  of 
the  Legislature,  pursued,  earnestly  and  diligently, 
the  work  of  reform  in  the  practice  of  his  court, 
we  should  have  been  here  to-day — if  this  Conven- 
tion had  ever  assembled — (and  he  greatly  doubted 
whether  it  would  have  been) — acknowledging  the 
obligations  of  the  people  to  an  efficient  court  of 
chancery,  and  to  continue  it  as  an  indispensable 
branch  of  our  state  judiciary.  But  our  judiciary 
have  been  so  much  engrossed  with  their  arduous 
labors,  and  have  been  so  wedded  to  their  old  sys- 
tems, that  they  have  not  discovered  or  appreciated 
he  imperious  demand  for  reform.  They  have  been 
content,year  after  year,to  struggle  on  with  the  accu. 
rculated  and  ever  accumulating  mass  of  unfinished 
ausiness  upon  their  hands,  apparently  unconscious 
of  the  increasing  public  discontent,  and  with  no 
effort  to  avert  that  doom  which  public  sentiment, 
with  a  distinctness  not  to  be  mistaken,  has  already 
pronounced.  The  manner  in  which  the  Chancel- 
or  had  complied  with  the  desire  of  the  Legisla- 
ure  might  be  well  illustrated  by  the  anecdote, 
well  known  to  the  profession,  of  an  eminent  law. 
/er  who,  when  informed  by  the  Chancellor  that 
le  was  about  to  publish  a  new  edition  of  his  rules, 
drily  and  significantly  enquired  of  his  honor  whe- 
her  it  would  appear  in  one  volume  or  two. — 
The  same  thing  is  true,  though  to  a  less  extent, 
with  respect  to  the  Supreme  court.  Much  might 
lave  been  done,  in  his  judgment,  to  render  the 
practice  of  that  court  less  difficult  and  complica. 
ed.  And  now  what  was  to  be  done,  was  a  grave 
aid  difficult  question.  The  project  of  the  gentle- 
man from  New  York, (Mr.  O'CONOB)  who  propos- 
ed to  blend  the  common  law  and  equity  practice, 
le  deemed  impracticable  at  least  for  the  present, 
and  he  had  been  unable  to  devise  anything  better 
han  an  amendment  which  at  a  proper  time  he 


041 


intended  to  otter  providing  for  the  election  of  a  i 
Chief  Justice,  who  should  preside  over  the  judi- 
ciary department,  and  whose  tiuty  it  should  be 
from  ti'ne  to  tune  to  prescribe  .such  forms  of  prac- 
tice for  the  Supreme  and  subordinate  courts,  as 
should  effectually  simplify  proceedings,  and  es- 
sentially reduce  the  expenses  of  litigation.  This, 
alone,  would  be  a  reform  of  incalculable  impor- 
tance.  He  who  should  effect  it,  would  entitle 
himself  to  the  gratitude  and  honor  of  a  public 
benefactor.  The  change  could  only  be  effected 
gradually.  Much  skill  and  experience  and  great 
deliberation  would  be  required  in  the  execution  of 
snrh  a  woik.  He  would  elect  an  officer  who 
should  be  held  responsible  to  the  people  for  a 
faithful  and  energetic  petlormance  of  this  diffi. 
cult  task;  and  the  more  certainly  to  secure  this 
object,  he  would  require  this  officer  to  report  an- 
nually to  the  Legislature,  recommending  such 
measures  tor  the  action  of  the  Legislature  as  should 
aid  in  the  accomplishment  of  this  greaf  work. 

Mr.  H.  now  passed  to  the  consideration  of  the 
subject  ol  uniformity  of  decisions  in  all  of  our 
courts.  All  would  admit  its  importance,  and  he 
thought  the  plan  submitted  by  the  majority  of 
the  judiciary  committee,  was  best  adapted  to  se- 
cure this  end. 

Mr.  WORDEN  here  interposed — saying  that 
there  was  no  such  thing  before  the  Convention  as 
a  plan  recommended,  by  a  majority  of  the  judicia- 
ry committee. 

Mr.  HARRIS  would  be  glad  to  have  the  gen- 
tleman explain. 

Mr.  WORDEN :     I  will  at  the  proper  time. 
Mr.  HARRIS :     It  is  a  very  extraordinary  state- 
ment. 

A  Voice  :    "  Jordan,  what  will  you  say  to  that?" 
Mr.  HARRIS:     I  do  not  understand  the  gen- 
tleman from   Ontario  (Mr.    WORDEN).     Does  he 
mean  to  say  anv  thing  affecting  my  argument  ? 

Mr.  WORDEN :  Yes,  sir.  That  report  never 
•did  receive  the  assent  of  a  majority  of  the  judi- 
ciary committee.  The  gentleman  has  undertaken 
to  say  what  the  fact  was,  and  in  stating  what 
he  did,  I  suppose  he  was  led  into  the  error  by 
hearing  this  repeatedly  alluded  to  as  the  report  of 
the  majority.  It  did  not  get  a  majority  of  votes. 
I  believe  it  got  three  votes  in  committee. 

Mr.  JORDAN  :  I  beg  leave  to  say  that  the  gen- 
tleman from  Ontario  is  entirely  mistaken.  Our 
chairman  never  presented  a  report  as  a  majority 
report,  that  was  not  so  in  point  of  fact. 

Mr.  WORDEN  did  not  hear  the  gentleman  from 
Columbia. 

Mr.  JORDAN  repeated  his  previous  statement 
and  appealed  to  Mr.  RUGGLES. 

Mr.  RUGGLES  (in  his  seat)  said  he  had  been 
looking  for  a  paper  which  he  thought  he  had  in 
his  drawer,  but  it  was  at  his  room.  He  would 
get  it  and  confront  the  gentleman  from  Ontario 
(Mr.  WORDEN). 

Mr.  WORDEN  said  that  the  gentleman  from 
Columbia  (Mr.  JORDAN)  from  first  to  last  voted 
against  every  proposition  in  the  report,  and  in 
favor  of  every  one  contained  in  his  (Mr.  W.'s) 
plan.  He  appealed  to  the  gentleman  from  Essex 
(Mr.  SIMMONS)  to  say  whether  he  was  wrong  or 
right.  Three  gentlemen  did  agree  that  the  re- 
port might  be  brought  in,  but  not  as  one  to  which 
they  assented.  He  had  the  report  which  was 


agreed  on,  (holding  up  a  roll  of  paper, )*which 
contained  some  49  sections,  and  was  twice  as  long 
as  the  present  constitution  of  this  State. 

Mr.  JORDAN  regretted  that  any  gentleman 
should  take  it  on  himself  to  go  as  far  as  the  gen- 
tleman from  Ontario  had  done.  He  considered  it 
in  the  first  place  as  a  direct  imputation  on  the 
conduct  of  the  chairman  of  the  committee.  In 
the  next  place,  as  regarded  himself,  it  was  un- 
true in  point  of  fact.  {Laughter.]  Mr.  J.  did 
not  know  what  the  gentleman  meant  by  assenting 
to  the  report.  If  he  meant  that  each,  perhaps  all 
of  us,  originally  had  entertained  different  views, 
and  that  we  advocated  those  views  in  committee, 
then  the  gentleman  was  right.  But  the 
gentleman  was  mistaken  entirely  in  saying  that 
the  gentleman  from  Columbia  (if  he  meant  Mr. 
J.)  voted  against  all  the  propositions  in  this  re- 
port. He  voted  against  one  or  two,  perhaps 
more  of  them.  But  he  did  not  consider  himself 
as  so  much  wiser  than  everybody  else,  that  they 
could  not  propose  anything  worthy  ot  adoption— 
and  he  did  yield  his  individual  opinions  in  two 
or  three  particulars,  to  harmonize  the  views  of 
the  committee — that  we  might  bring  in  a  report. 
Not  to  have  done  that  would  have  been  disgrace- 
ful to  the  committee.  They  owed  it  to  them- 
selves, to  the  Convention,  and  to  the  public,  to 
agree  on  something  that  the  Convention  might 
act  upon.  In  the  end,*  a  majority  did  agree  to 
the  report,  and  no  doubt  the  chairman  could  show 
that  fact  from  the  journal  of  the  committee. 

Mr.  BROWN  had  a  word  to  say — and  he  hop- 
ed the  gentleman  from  Ontario  would  not  leave 
his  seat — (Mr,  WORDEN  had  in  the  interim  left  lii>- 
seat  and  was  conversing  with  a  member  in 
one  of  the  aisles.  Having  returned)  Mr.  K.  went 
on  to  say  that  this  report  was  submitted  fourteen 
days  ago.  It  had  been  treated  throughout  as  the 
report  of  the  majority  of  the  committee,  and  by 
all  up  to  this  time.  The  allegation  now  put  forth 
by  the  gentleman  from  Ontaria,  imputed  a  direct 
falsehood  to  those  who  were  instrumental  in  bring- 
ing it  forward.  He  could  not  regard  it  in  any 
other  light.  If  the  gentleman  did  not  mean  it  to 
be  so,  he  had  no  more  to  say.  He  would  state 
again,  that  the  gentleman  might  understand  him 
— because  this  concerned  the  respect  due  to  him- 
self and  others  of  the  committee — it  concerned 
the  credit  due  to  his  honorable  friend  the  chair- 
man of  the  judiciary  committee  and  all  the  rest 
of  us — that  he  understood  it  as  a  direct  imputa- 
tion of  falsehood  on  our  part.  Am  I  mistaken  ? — 
asked  Mr.  B.  (turning  to  Mr.  WORDEN.) 

Mr.  WORDEN  regretted  this  sensitiveness  on 
the  part  of  certain  members  of  the  committee. — 
He  had  brought  forward  nothing  that  amounted 
to  a  charge  of  falsehood,  or  any  thing  else  deroga- 
tory to  the  character  of  any  gentleman  of  the  com- 
mittee. This  report  had  been  spoken  of  here, 
time  and  time  again,  as  one  to  the  provisions  of 
which  the  majority  had  assented  ;  and  it  seemed 
to  have  stood  before  this  body,  us  a  report  which 
iu  all  its  features  had  met  the  concurrence  of  a 
majority  of  the  committee.  Now  he  asked  the 
gentleman  from  Orange  (Mr.  UROWN)  if  that  was 
so  ?  If  the  majority  were  understood  to  be  pledg- 
ed conscientiously  and  fairly  to  the  support  of  this 
plan  ?  He  asked  the  chairman  of  the  committee  if 
that  was  so  ? 

55 


642 


Mr.  BROWN— I  will  answer  the  gentleman. 

Mr.  WORDEN— In  all  its  features  and  parti- 
culars ? 

Mr.  BROWN — Not  in  every  particular,  or  in 
every  slight  shade  or  section.  But  in  regard  to 
all  its  main  features,  they  were  as  much  pledged 
as  any  ten  gentlemen  could  be.  It  was  not  possi- 
ble to  form  a  plan  of  this  kind,  that  would  com- 
mand the  assent  of  every  body,  in  all  its  details  ; 
but  in  all  its  leading  features  it  was  agreed  to  by 
a  majority,  and  was  to  all  intents  and  purposes  a 
majority  report;  as  much  so  as  any  report  that 
had  been  presented  here.  As  Mr.  B.  stated  when 
the  report  was  submitted,  in  all  its  essential  fea- 
tures, it  commanded  the  assent  of  a  large  majority 
of  the  committee.  He  so  stated,  over  and  over 
again  ;  and  now  stated  it.  On  the  evening  when 
the  report  was  adopted,  all  were  present  except 
Mr.  STEPHENS,  (vvho  left  his  assent  to  it  with 
Mr.  JORDAN;)  the  gentleman  from  Essex,  (Mr. 
SIMMONS)  and  the  gentleman  from  Herkimer, — 
(Mr.  LOOM  is)  did  not  assent  to  some  portions  of 
it,  and  it  was  modified,  and  as  modified,  did  com- 
mand the  assent  of  a  majority. 

Mr.  WORDEN— Did  not  the  gentleman  him- 
self dissent,  and  did  he  not  consent  to  the  plans 
being  submitted,  only  on  condition  that  he  should 
have  leave  to  dissent  in  convention  ? 

Mr.  BROWN  did  dissent  from  such  portions 
of  it. 

Mr.  PATTERSON  here  rose,  holding  a  M.S. 
book. 

Mr  BROWN  (who  had  just  received  a  paper 
from  Mr.  RUGGLES)  asked  the  gentleman  to  give 
way  whilst  he  read  what  took  place. 

Mr.  PATTERSON— If  the  gentleman  from 
Orange,  (Mr.  BROWN)  will  give  way,  I  will  read 
from  the  record. 

Mr.  WORDEN  said  he  had  the  files  also.  The 
committee,  he  said,  after  great  labor — a  labor 
which  he  believed  was  as  honest  and  faithful  as 
ever  thirteen  gentlemen  bestowed  on  any  subject, 
went  through  with  the  various  propositions  before 
them,  and  agreed  to  a  plan  in  detail,  by  votes  pro 
and  con.  That  plan  he  had  in  his  hand,  with 
the  exception  of  eight  or  ten  sections — and  it  was 
longer  than  the  present  constitution  of  New  York, 
containing  nearly  fifty  sections.  When  the  final 
question  came  as  to  reporting  this  plan  he  did  not 
know  how  many  votes  it  got.  Weary  with  this 
plan  and  wearied  with  labor,  the  committee  fi- 
nally agreed  that  the  chairman  should  draw  a 
plan — a  plan  to  which  the  chairman  himself  dis- 
sented in  some  prominent  features,  and  that  that 
plan  should  be  treated  as  coming  from  the  com- 
mittee. At  the  same  time  every  gentleman  was 
at  liberty  to  dissent  from  it.  After  that  agree- 
ment had  been  made,  a  plan  was  handed  about 
the  house,  and  gentlemen  signed  it,  he  presumed 
with  the  understanding,  that  it  should  be  pre- 
sented as  he  had  stated.  He  (Mr.  W.)  had  sign- 
ed it  himself,  without  a  qualification.  He  be- 
lieved the  report  had  been  brought  forward  in 
that  spirit,  honestly  and  fairly,  by  those  who  had 
brought  it  forward.  But  it  should  admonish 
these  gentlemen,  and  should  have  admonished 
the  gentleman  from  Columbia,  [Mr.  JORDAN]  the 
other  day,  that  it  was  not  prudent  to  be  making 
insinuations  against  other  gentlemen  on  the  com- 
mittee, when  he  stated  among  other  things  that 


there  was  one  gentleman*  who  could  not  agree 
with  himself.  As  to  the  plan  which  Mr.  W.  had 
the  honor  to  present,  that  gentleman  had  voted 
with  him  throughout  on  every  essential  feature 
of  it- 
Mr.  KIRKLAND  asked  if  this  course  of  refer- 
ring to  what  was  done  in  committee  was  not  un- 
parliamentary. 

The  CHAIR  interposed.  It  was  entirely  un- 
parliamentary to  refer  to  proceedings  in  commit- 
tee. It  had  never  been  done  or  heard,  of  here- 
tofore, any  where. 

Mr.  WORDEN  continued.  The  chairman  of 
the  committee  had  made  no  statement  not  com- 
porting with  his  high  character.  Mr.  W.  had 
no  intention  to  impeach  him  or  any  other  jnem- 
ber  of  the  committee.  But  he  supposed  it  was 
not  a  report  which  a  majority  of  the  committee 
assented  to  which  had  been  presented  here,  and 
it  was  in  this  feeling  that  he  had  spoken. 

Mr.  PATTERSON  here  said  as  recollections 
might  vary,  he  would  read  an  extract  from  the 
journal  of  the  committee  kept  by  a  secretary  from 
the  beginning  to  the  close  of  their  labors.  The 
last  evening  the  committee  met,  it  appeared  a  re- 
solution was  adopted  agreeing  to  the  report  as 
amended — ayes  9,  noes  3 — Messrs.  WORDEN, 
KIRKL.AND  and  BASCOM,  voting  in  the  negative. 
And  then  on  motion  of  Mr.  .BROWN  it  was  resol- 
ved that  the  chairman  present  the  report  to  the 
Convention  to-morrow  morning.  Mr.  O'CONOR 
was  not  present  at  that  meeting.  The  proceed- 
ings were  signed  by  Mr.  KIRKLAND  as  secretary. 

Mr.  O'CONOR  said  it  was  because  the  action 
of  the  committee  was  departed  from.  A  paper 
was  handed  to  him  with  seven  names  on  it,  and 
knowing  that  it  had  received  the  sanction  of  a 
majority  of  the  committee  in  private,  there  was 
of  course  no  use  in  attending  to  see  that  carried 
through  ;  and  that  was  his  reason  for  not  attend- 
ing to  sanction  or  dissent  from  this  thing,  which 
had  already  been  pre-determined  upon.  It  was 
the  only  meeting  that  he  had  been  absent  from.' 

Mr.  BASCOM  enquired  whether  the  report  did 
not  override  two  or  more  distinct  resolutions  of 
the  committee — one  of  them  relating  to  the  num- 
ber of  courts,  and  the  other  in  relation  to  election 
of  judges? 

Mr.  PATTERSON  said  it  was  true  that  at  some 
former  meeting  the  committee  agreed  to  have  two 
courts.  But  two  of  those  stated  that  they  voted 
under  some  misapprehension.  As  to  the  report 
containing  42  sections,  it  was  true  that  there  was 
such  a  report  drawn  up  ;  but  that  was  twice  lost 
by  a  tie  vote.  After  that,  the  Chairman  went  to 
work  and  drew  up  a  report,  leaving  out  the  ob- 
jectionable sections  of  that  report,  arid  for  this  he 
had  Mr.  P.'s  hearty  thanks.  One  proposition  in 
it  varied  from  the  original — but  the  majority  vo- 
ted for  it.  Mr.  P.  voted  against  it,  but  agreed  to 
the  report  as  a  whole — the  understanding  being 
that  we  could  vote  as  we  pleased  in  Convention. 
But  the  whole  was  agreed  to  by  ayes  and  noes  as 
it  stood  on  record. 

Mr.  BROv\N  had  a  word  of  explanation  in  re- 
gard to  tlie  paper  circulated  in  the  House  bolure 
the  last  meeting  oi  the  com  mi  I  It  e.  There  \\o» 
great  apprehension  that  we  should  bf  able  in  agiee 
on  nothing.  The  g->ntkunan  iroin  New  York  (Mr. 
O'CONOR)  could  not  very  wull  recodj.  Under 


643 


i  iriMnnsunres,  it.  \YJS  agreed  that    an    etiori 
(|    I).'  iii;n.itf  lo  t'raute  a  report  which    should 
<-»inui. iiul  the  assent  of  the  majority,  and  the  gen- 
Mi    Iroin  Columbia   and  Dntchets  met  at    his 
room,  drew  up  this  report,  and  it   was   circulated 
.  -even  ct  the  commit  tee  signing  it.     At   the 
meeting  that  evening,   it    was  remodeled    to    suit 
inc.    taste  of  the    gentleman  1'rotn  Herkimer  and 
v,  and  adopted  distinctly,  by  a  vote  of  nine  to 
three,     it  WHS  as  legitimate  and   fair  a   report   as 
fvei  c-ame  hefoiv  surh  u  body. 

Mr.  SIM MUJVS  said  this  was  the  first  he  had 
«ver  heard  of  a  paper  being  citculated  for  sigria- 
Mifs--but  he  would  add  that,  whilst  every 
in  the  report  uas  adopted  by  a  majority, 
is  not  by  a  majority  constituted  of  the 
j^irne  persons — that  when  a  motion  was  made 
that  the  chairman  present  the  report,  Mr. 
WORDEN  objected — that  the  question  should 
be  on  agreeing  lo  it — that  but  two  or  three  would 
«tiree  to  it  though  the  committee  were  willing  to 
n.tve  it  reported,  lor  the  purpose  of  having  some 
thing  before  the  body  to  act  upon.  From  that 
time  there  was  a  good  deal  of  difficulty.  The 
r.iuirman  had  a  great  responsibility  thrown  upon 
/urn;  and  he  (Mr.  S.)  must  give  him  the  credit  of 
uting  in  as  high  a  degree  the  virtues  ol 
Christian  patience  and  foititude,  as  heever  knew. 
At'er  a  while,  an  abridgement  of  the  work  at 
large  was  presented;  and  he  understood  then,  as 
(io\v,  that  a  majority  of  the  committee  weie  in  fa- 
vor of  the  substantial  things  in  the  report;  but 
<  hat  it  was  not  expected  of  us,  any  more  than  of  oth 
<;r  committees,  that  every  gentleman  who  assent- 
ed to  it  would  not  be  at  liberty  to  improve  or  dis- 
•^int  from  it  in  Convention.  He  defined  his  posi- 
tion when  it  came  in.  Some  approved  it  more 
4ully  than  others,  in  one  sense,  the  report  never 
was  aureed  i->  by  a  majority — but  essentially  it 
was  agreed  to. 

Mr.  WOUDEN  hoped  the  gentlemen  trom 
Du  i  chess  and  Orange  (Messrs  RUGGI.ES  and 
IJROWIV-)  understood  him  precisely  as  the  gentle- 
man from  Essex  (Mr.  SIMMONS)  said — that  each 
one  in  committee,  reserved  to  himself  the  right  to 
oppose  such  parts  of  it  as  he  saw  lit — and  almost 
every  gentleman  expressed  a  dissent  to  some  part 
of  it  — 

All.  RUGGLES:  (In  his  seat.)  That  will  riot 
do  iMr.  WORDEJV 

Mr.  VVOKDEiN:  Is  the  gentleman  from  Essex 
right? 

Air.  RUGGLES:  He  is  substantially  right  as 
irtMids  himself 

Mr-  WORDEN  intended  to  convey  the  same 
idea  that  the  gentleman  from  Essex  (Mr.  SIM- 
MONS) did — am!  he  begged  here  to  say  that  this 
plan  if  adopted  in  toto,  as  it  now  stood  would  not 
be  a  bad  one,  but  an  improvement  on  the  old  one. 

The  CHAIR  interposed,  and  the  conversation 
dropped. 

Mr.  HARRIS  resumed,  saying  that  after  what 
had  passed,  he  should  by  way  of  designation,  in 
what  further  he  had  to  say,  refer  to  the  report 
submitted  by  the  chairman  of  the  committee  as 
the  report  of  the  majority.  He  entirely  approved 
of  the  plan  of  the  committee,  by  which  one  court 
was  to«be  organized  with  sufficient  force  to  trans- 
act all  the  judicial  business  of  the  State.  It  was, 
in  his  judgment,  much  preferable  to  a  series  of 


courts  of  different  grades.  A  supreme  court  with 
a  number  of  judges  of  equal  grade,  with  the  State 
divided  into  convenient  judicial  districts,  was  he 
thought,  the  best  possible  system  to  secure  uni- 
formity of  decisions  and  a  prompt  administration 
of  justice.  He  would  have  every  portion  of  the 
State  visited  by  judges  of  the  highest  grade.  In 
this  respect,  the  plan  of  the  committee  met  with 
his  decided  approbation.  There  would  be  in 
each  of  the  eight  judicial  districts,  into  which  it 
was  proposed  to  divide  the  State,  four  judges — 
whose  duty  it  would  be  as  often  as  necessary,  to 
go  through  the  counties  in  their  districts,  holding 
the  circuits.  The  fact  that  the  trial  of  causes 
would  be  had  in  the  first  instance  before  a  judge 
of  the  highest  court,  and  one  who  would  sit  in 
the  court  of  review,  would  have  a  strong  tenden- 
cy to  prevent  appeals,  and  thus  diminish  litiga- 
tion. Suitors  would  be  more  likely  to  be  satisfi- 
ed with  the  result  of  the  first  trial,  if  they  had 
the  decision  of  such  a  judge,  than  if  it  were  tried 
before  a  court  of  inferior  rank.  The  fact  that  a 
court  of  superior  grade  exists,  is  a  temptation  to 
parties  to  protract  litigation.  It  had  been  doubt- 
ed whether,  if  law  and  equity  jurisdiction  should 
be  united  in  the  same  court,  these  judges  would 
be  able  to  discharge  all  the  duties  devolving  upon 
them.  He  had  taken  some  pains  to  satisfy  his 
own  mind  upon  this  point,  by  consulting  those 
whose  experience  best  fitted  them  to  judge,  and 
he  had  uniformly  found  their  opinions  as  to  the 
practical  operation  of  the  system,  corresponding 
with  his  own.  Among  others,  he  had  enquired 
of  the  present  judge  of  the  third  circuit,  (Judge 
Parker)  who  had  long  been  engaged  in  successful 
practice  and  for  several  years  had  discharged  his 
official  duties  in  this  circuit  with  eminent  ability 
and  great  satisfaction  to  the  public.  That  judge 
had  informed  him  that  he  had  no  doubt  that  he 
could  perform  one  half  the  duties  of  that  court  in 
this  district,  if  the  offices  of  master  and  examiner 
in  chancery  were  not  abolished,  and  with  the  ad- 
dition of  the  duties  of  those  officers  he  believed 
three  judges  could  do  the  business  of  the  third 
circuit,  under  the  system  proposed,  with  ease. 
With  a  proper  reform  in  the  practice,  Mr.  H. 
believed  the  system  would  prove  one  of  the  bos'; 
that  this  state  or  any  other  ever  saw.  It  had 
been  generally  admitted  that  the  separation  of  the 
duties  of  the  circuit  of  the  supreme  court  in  bane, 
is  a  radical  defect  in  the  present  organization  of 
our  judiciary.  That  the  system  which  existed 
prior  to  the  adoption  of  our  present  Constitution 
was  in  this  respect  at  least  preferable.  The  plan 
recommended  by  the  committee,  restores  this  fea- 
ture of  the  old  Constitution.  The  judges  are  all 
to  go  through  the  counties  of  the  state  holding- 
circuits,  and  thus  acquiring  that  practical  expe- 
rience which  forms  so  essential  a  qualification  of 
a  good  judge,  after  which  they  are  to  meet  in  their 
respective  districts,  to  determine  the  questions 
which  have  arisen  at  the  circuits,  and  from  their 
decisions  appeals  are  to  be  taken  to  a  court  of  last 
resort,  composed  of  judges  who  have  had  at  least 
six  years  experience  upon  the  circuit.  And  if  at 
the  expiration  of  his  judicial  term,  the  judge 
should  have  discharged  his  duties  to  the  public 
satisfaction,  he  would  in  most  instances  be  re- 
elected  and  return  to  the  circuit  with  the  weight 
of  character  and  moral  influence  which  his  expe- 


644 


rience  and  a  re-endorsement  by  the  people,woulc 
give  him.  Mr.  H.  desired  to  have  the  provisions 
of  the  report  of  the  committee  for  the  construction 
^f  the  coart  of  appeals  so  modified,  as  to  have  tha 
court  composed  of  the  senior  class  of  the  judges 
of  the  supreme  court  exclusively.  This  wouk 
in  his  opinion,  more  effectually  secure  uniformity 
of  decrees,  and  at  the  same  time  a  court  which 
would  be  sure  to  command  the  public  confidence 
and  res-pect. 

Mr.  H.  said  he  was  also  in  favor  of  uniting  the 
jurisdiction  of  Jaw  and  equity  in  the  same  tribu- 
nal. He  had  been  unable  to  discover  any  sounc 
reason  why  this  should  not  be  done.  Under  the 
present  system  the  Circuit  Judges  were  vested 
with  equity  as  well  as  common  law  jurisdiction, 
and  the  justices  of  the  supreme  court  sit  as  a 
court  of  review  upon  the  decisions  of  the  Chan- 
cellor. He  could  see  no  practical  difficulty  in 
the  way  of  uniting  in  the  same  court  the  powers 
of  the  Chancellor  and  the  supreme  court  also. — 
The  jurisdiction  of  these  courts  was  already  to  a 
considerable  extent  concurrent.  This  had,  doubt- 
less, arisen  from  the  disposition  of  the  courts, 
commendable  in  itself,  to  give  relief— to  do  jus- 
tice between  parties  when  before  the  court,  in- 
stead of  turning  them  over  to  another  tribunal  for 
the  relief  to  which  they  were  obviously  entitled. 
And  although  he  did  not  believe  it  possible  to 
blend  equity  and  common  law  proceedings,  yet 
he  did  believe,  that  if  the  same  tribunals  were  to 
exercise  both  jurisdictions,  they  would  gradually 
approximate  and  become  assimilated  to  each  oth- 
er— and  that  each  would  exert  a  happy  influence 
in  simplifying  and  improving  the  practice  of  the 
other.  And  it  might  be,  in  process  of  time,  that 
the  anticipations  of  the  gentleman  from  New- 
York  (Mr.  O'CONOK)  might  be  realized,,  and  the 
distinction  between  law  and  equity  be  no  longer 
known.  So  far  as  this  was  practicable  it  certain- 
ly was  desirable,  and  he  would  go  as  far  as  any 
one  to  effect  this  object,without  embarrassing  the 
administration  of  justice. 

As  they  now  exist,  it  would  not  be  an  easy 
matter  for  any  lawyer  to  point  oat  any  distinct 
and  complete  boundaries  of  the  Court  of  Chancery 
and  Common  Pleas.  A  cloudy  dubiousness 
hangs  over  the  confines  of  these  two  jurisdictions. 
And  he  who  would  find  the  great  outlines  of  a 
complete  distribution  of  the  powers  of  these  courts, 
will  find  himself  lost  in  a  wilderness  of  particu- 
lars. This  should  not  be  so.  In  a  country  like 
ours,  and  in  this  age,  the  path  that  leads  to  the 
temple  of  justice  should  be  so  plain  as  not  to  in- 
volve those  who  seek  her  shrine  in  the  mazes  of 
error. 

With  respect  to  the  election  of  a  judiciary  by 
the  people,  Mr.  H.  said  a  diversity  of  opinion  ex- 
isted. It  was  he  admitted,  an  experiment.  But 
he  believed  it  an  experiment  which  now,  and  in 
this  State,  might  safely  be  tried.  For  himself,  he 
had  no  fears  as  to"  the  result.  The  argu- 
ments which  had  been  urged  against  this  change 
were  the  same  which  in  the  Convention  of  1821 
were  passed  against  the  election  of  justices  of  the 
peace  by  the  people.  And  yet  who  will  not  ad- 
mit that  since  those  officers  have  been  elected  by 
the  people,  a  better  class  of  men  have  been  se- 
lected than  those  who  had  before  been  appointed  ? 
What  individual  could  be  found,  in  this  Conven- 


tion or  out  of  it,  who  wonlol  be  in  favor  of  with- 
drawing  from  the  people  the  election  of  justices  ? 
The  experiment  has  been  tried,  and  it  has  proved 
that  all  the  arguments,  which  were  in  1821  urged- 
with  so  much  effect  as  to  defeat  the  amendment 
proposed,  were  entirely  groundless.  To  show 
that  the  grounds  upon  which  this  change  was  op- 
posed then,  are  the  same  urged  by  gentlemen  a- 
gainst  this  measure  nowr  "Mr.  H.  would  read 
from  the  debates  of  that  Convention  some  ex- 
tracts from  the  speeches  of  eminent  citizens  of 
the  democratic  faith,  who  were  members  of  that 
distinguished  body.  Mr  Van  Buren  upon  this 
question  holds  the  following  language : 

'The  amount  of  business  before  the  justices  of 
the  peace  in  this  State,  was  four  times  as  great, 
as  all  the  business  before  the  other  courts.  They 
were  equally  important  as  it  respected  criminal 
justice — as  to  the  probable  effect  upon  their  in- 
dependence, there  is  no  room  for  a  comparison. 
The  Judges  of  the  supreme  court  are  elected  for 
a  long  term  of  time — should  the  people  become 
dissatisfied,  even  whole  counties,  these  officers 
might  not  feel  the  effects  of  their  displeas-ure  till 
after  a  long  time  had  elapsed — but  apply  this 
to  justices  of  the  peace  who  administer  justice  ia 
the  immediate  presence  of  their  constituents,  and 
are  exposed  to  the  daily  scrutiny  of  those  upon 
whom  they  are  dependent — who  are  cognizant  of 
all  they  doy  and  have  the  power  of  pass-ing  judg- 
ment on  them — if  they  are  not  satisfied  with 
them  they  must  forfeit  their  offices.  He  did  not 
relieve  it  would  be  benefiting  the  people  to  ex- 
tinguish one  great  fire  and  kindle  fifty-two  small- 
er ones.  The  further  this  power  could  be  re- 
moved from  the  people  the  better.  It  must  be 
perfectly  obvious,  that  every  consideration  that 
could  be  urged  in  favor  of  electing  justices  of  the 
peace,  would  apply  in  favor  of  having  the  Judg- 
es of  the  higher  tribunals  elective  also — and  that 
even  fewer  objections  exist  to  having  those  courts 
selected  in  this  way." 

Mr.  Ross,  anether  member  of  that  convention, 
s-ays: 

**  That  effects  the  most  pernicious  and  detri- 
mental to  the  public  welfare  would  flow  from 
making  any  judicial  officer  elective,  particularly 
magistrates  T I  think  must  be  manifest  to  all. — 
Independently  of  the  agitations,  management  and 
strife  incident  to  such  elections,  and  which  will 
5e  sufficient  to  deter  sober,  discreet  men  from  en- 
tering into  competition  to  obtain  the  office,  it 
will  destroy  all  confidence  in  the  independence 
and  impartiality  of  our  magistrates.  Wherever 
these  elections  a're  contested,  as  they  will  be,  the 
candidates  cannot  help  but  kn^w  who  have  op- 
posed, as  well  as  those  who  have  advocated,  their 
election.  In  this  respect,  they  are  altogether 
more  unpleasantly  situated  than  judicial  officer* 
>f  a  higher  degree," 

Other  members  of  that  convention  were  found 
urging  the  same  reasons  why  the  people  should 
not  be  entrusted  with  the  election  of  these'magis- 
rates,  but  Mr.  H.  would  only  detain  the  commit- 
ee  by  reading  one  other  paragraph  from  the  re- 
marks of  Gen.  ROOT  upon  the  same  question. 

"  It  has  been  claimed,"  said  he,  "  that  to  elect 

ustices  of  the  peace,  is  a  democratic  meafsure. — 

Sir,  I  oppose  such  election,   not  merely  on   the 

ground  that  it  would  produce  turmoil  and  confu- 


645 


sion,  but  principally  on  the  ground  that  it  would 
be  the  height  of  aristocracy.  The  plan  of  elect- 
ing magistrates  in  town  meetings,  is  as  destitute 
of  democracy  as  the  canton  of  Berne  in  Switzer- 
land, where  three  or  four  hundred  burghers  save 
the  mass  of  the  people  from  that  trouble.  The 
jurisdiction  of  a  justice  of  the  peace  is  co-exten- 
sive with  the  county  in  which  he  resides.  And 
you  elect  by  one  town  a  magistrate  who  can  play 
the  tyrant  over  all  the  other  towns  in  the  county, 
without  any  responsibility  to  those  towns.  There 
is  no  relation  between  the  elector  and  the  elect- 
ed, and  the  few  are  thus  enabled  to  govern  the 
many,  which  I  take  to  be  the  very  essence  of  ar- 
istocracy. He  was  in  favor  of  placing  all  judi- 
cial officers  upon  the  same  footing,  so  far  as  it 
respected  their  creation.  He  thought  there  was 
more  safety  in  electing  theChancellor  and  Judges 
of  the  Supreme  Court  by  the  people,  than  the 
Justices  of  the  peace.  They  were  altogether  less 
liable  to  improper  influence  from  the  power  that 
created  them." 

These  extracts  sufficiently  show  what  were  the 
views,  entertained  in  1821  on  the  subject  of  a 
elective  judiciary.  There  is  not  one  of  those  who 
then  opposed  the  election  of  justices,  who  would 
not  now  frankly  admit  that  his  apprehensions 
were  groundless.  So  it  has  ever  been  with  the 
progress  of  democratic  principles.  Let  the  pro- 
position to  elect  our  judges  be  adopted,  and  those 
who  now  oppose  the  measure,  as  destructive  of  the 
independence  of  the  judiciary,  would  ten  years 
hence  be  constrained  to  admit,  like  those  who  op- 
posed the  election  of  justices,  that  their  fears  were 
altogether  imaginary. 

The  gentleman  from  Tioga  (Mr.  J.  J.  TAYLOR) 
had  referred  to  the  local  excitement  which  had 
extensively  prevailed  in  several  of  the  counties 
of  this  state,  to  shew  the  danger  of  adopting  the 
plan  of  electing  judges.  Mr.  H.  would  refer  to 
the  same  state  oi  things  to  shew  the  perfect  safety 
of  conferring  upon  the  people  the  choice  of  their 
judicial  officers.  He  was  happy  in  the  conscious- 
ness that  to  a  very  considerable  extent  he  posses- 
sed the  confidence  of  those  who  were  then  sub- 
ject of  the  excitement  which  had  been  referred  to. 
Judge  Parker,  in  the  discharge  of  his  duties  as 
circuit  judge,  had  presided  at  many  trials  grow- 
ing out  of  that  excitement — he  had  sentenced 
more  than  a  score  of  those  unfortunate  men  to  the 
state  prison,  and  yet  he,  Mr.  H.  would  scaicely 
venture  to  accept  a  nomination  for  judge  in  oppo- 
tion  to  that  distinguished  judge — so  ably  and  so 
faithfully  had  he  discharged  his  delicate  and  re- 
sponsible duties  as  to  secure  the  approbation  of 
the  great  body  of  the  people — and  he  ventured  to 
say  that  no  man  could  be  found  in  the  district 
who  could  successfully  stand  a  canvass  with  him 
for  a  judicial  office.  But,  suppose  he  had  yielded 
to  the  influences  with  which  he  was  surrounded, 
instead  of  holding  the  scales  of  justice  with  an 
unswerving  hand,  and  administering  the  law  with 
fidelity,  he  could  not  for  a  moment,  have  stood 
the  ordeal  of  a  popular  election.  The  great  mass 
of  the  people  are  intelligent  and  virtuous.  They 
appreciate,  as  fully  as  this  committee  does', 
the  vital  importance  of  an  intelligent,  faith- 
ful administration  of  the  law.  The  honest, 
conscientious  and  upright  judge  will  always 
command  their  approbation  and  support,  and  no 


other  recommendations  will  atone  fora  deficiency 
in  these  qualifications.  We  hear  much  of  judicial 
independence  and  an  independent  judiciary.  No 
man  was  more  deeply  impressed  with  the  great 
importance  of  an  enlightened  and  efficient  judi- 
ciary than  he  was.  No  man  would  go  farther 
than  he  would  to  attain  that  object.  Such  a  judi- 
ciary is  the  very  soul  of  a  free  Constitution — 
without  it,  the  best  system  of  government  in  the 
world  is  but  a  dead  letter.  It  is  the  indispensa- 
ble safeguard  of  all  constitutional  liberty — the 
great  animating  principle  of  society — securing  to 
all — the  high  and  the  low — the  rich  and  the  poor 
— protection  of  all  their  dearest  interests — protec- 
tion of  life  and  those  domestic  relations  deurer 
than  life — protection  in  the  acquisition  and  en- 
joyment and  transmission  of  property — guarantee- 
ing equal  rights  to  all — and,  like  the  life-blood, 
circulating  from  the  heart  to  the  remotest  extre- 
mities of  society.  Nothing  short  of  such  a  judi- 
ciary can  effect  the  great  object  of  a  free  govern- 
ment. You  may  have  the  best  possible  code  of 
laws — you  may  have  the  most  efficient  executive 
department — all  will  be  in  vain,  liberty  will  be  but 
another  name  for  licentiousness  and  anarchy,  un- 
less-the  supremacy  of  the  laws  is  fearlessly  main- 
tained b_y  A  taiUilui  aiid  independent  judiciary. — 
The  beautiful  sentiment  of  Si.  Paul,  thai  prodigy 
of  intellectual  splendor,  is  as  true  in  government 
as  it  is  in  religion — "  We  are  all  servants  of  tlie 
law,  that  we  may  be  free," — an  inconupubie,  in- 
dependent and  enligliU;ned  administration  ot  jus. 
tice  is  indispensable  in  a  free  government — with- 
out it  *'  we  cannot  be  liee."  l  he  judiciary  is  ttie 
only  beneficent  power  to  which  the  weak  and  Uo- 
fencejess  can  look  for  protection.  Iis  influence, 
not  confined  to  the  mere  administration  of  justice, 
is  felt  in  ail  the  conceins  ot  lite  and  government. 
Holding  the  shield  of  the  law,  it  is  the  avenger  of 
wrong — the  only  protector  ot  innocence.  He 
would  yield  to  no  man  in  his  devotion  to  this 
branch  ol  our  government  in  his  efforts  to  render 
it  useful  and  efficient  But  gentlemen  mistake 
when  they  suppose  lhat  judicial  independence  can 
only  be  secured  by  placing  the  judge  beyond  the 
reach  of  all  responsibility  to  hun-ian  power.  He 
would  secure  the  people  against  an  arbitrary, 
tyrannical,  and  despotic  exercise  ot  the  judicial 
office,  by  making  the  judge  feel  more  his  responsi- 
bility. He  was  far  from  believing  that  irrespon- 
sibility was  necessary  to  secure  judicial  independ- 
ence. Judicial  independence,  what  is  it  but 
simple  honesty?  The  judge  is  the  represen- 
tation of  the  law.  If  you  give  him  lo  understand 
that  he  will  be  held  lesponsible  for  his  steward- 
ship, do  you  thereby  unnerve  him?  Far  from  it. 
On  tne  other  hand  a  new  incentive  is  placed  befoie 
him  to  increased  fidelity.  So  long  as  the  peo- 
ple are  found  true  to  virtue  and  good  govern- 
ment, so  long  those,  who  would  minister  at  the 
altars  of  justice,  must  present  themselves 
with  clean  hands  and  a  pure  life.  These  qualifi- 
cations alone  could  fit  the  candid  .te  for  that  holy 
office,  to  stand  the  ordeal  through  which  he  must 
pass — these  alone  can  secure  public  confidence. 

Mr.  H.  said  he  should  do  injustice  to  his  own 
feelings,  if  he  were  to  take  his  seat,  without  ex- 
pressing to  this  committee  his  heartfelt  thanks 
for  the  patient  attention  with  which  they  had  lis- 
tened to  him,  notwithstanding  the  extreme  in- 


646 


clemency  of  the  weather.  His  own  mind  was 
deeply  affected  with  the  magnitude  of  the  inter- 
ests involved  in  the  subject  under  consideration. 
This  must  furnish  his  apology  for  the  unusual 
length  of  time  he  had  allowed  himself  to  occupy. 
If  the  Convention  should  succeed  in  devising  a 
plan  for  an  efficient,  thorough  administration  of 
justice,  whatever  else  we  may  fail  to  do,  our  labor 
would  not  be  in  vain.  We  should  be  entitled  to 
the  credit  of  success.  And  whatever  else  we  do, 
if  we  fail  here,  our  whole  labor  must  prove  a 
failure. 

1  he  committee  rose  and  reported  progress,  and 
the  house  adjourned. 

SATURDAY,  ((j'3d  day,)  August  15. 

Prayer  by  the  Rev.  Mr.  KAWSOJV. 

Mr.  GREENE  presented  the  memorial  of  six 
ladies  in  Jeriersou  county,  asking  for  the  extension 
of  the  elective  tranchise  to  women.  It  was  read 
and  rel'eired  to  standing  committee  No.  4. 

The  ioliowmg  is  the  petition: 

To  the   Constitutional  Convention  of  the  State  of  New- 
York  : 

Your  Memorialists  inhabitants  of  Jefferson  county,  be- 
lieving thai  civil  government  has  its  foundation  in  the 
laws  oi  our  existence,  as  moral  and  social  beings,  that  the 
specific  object  and  end  of  civil  government  is  to  protect  all 
in  the  exerci&e  ol  all  their  natural  riguts,  by  combining 
the  strength  ot  society  lor  the  defence  of  the  individual- 
believing  that  the  province  of  civil  tjovemment  is  not  to 
create  new  riguts,  out  to  declare  ana  enforce  those  which 
originally  existed.  Believing  likewise  that  all  govern- 
ments must  derive  their  just  powers  from  the  consent  of 
the  governed  "  Irom  the  great  body  01  society,  and  not 
irom  a  favored  class,  although  that  favoied  class  inay  be 
even  a  majoiit}  of  the  inhabitants,"  therefore  respectfully 
represent:  That  »he  present  government  of  this  state  has 
widely  departed  fiom  the  true  democratic  principles  upon 
which  all  just  governments  must  be  ba>ed  by  denying  to 
the  female  portion  of  cominumity  the  right  ol  snli'rage  and 
any  participation  in  forming  the  government  and  laws  un- 
der which  they  live,  and  to  u  hich  they  are  amenable,  and 
by  imposing  upon  them  burdens  of  taxation,  both  directly 
and  indirectly,  without  admitting  them  the  right  ol  repre- 
sentation, thereby  striking  down  the  only  baleguards  of 
their  individual  and  personal  liberties.  Your, Memorialists 
therefore  ask  your  honorable  body,  to  remove  this  just 
cause  ol  complaint,  by  modifying  the  present.  Constitution 
oi  this  State,  so  as  to  extend  to  women  equal,  and  civil 
and  political  lights  with  men.  In  proposing  this  change, 
your  putitionei  s  ask  you  to  confer  upon  them  no  new  right 
but  only  to  declare  and  enforce  those  which  they  origin- 
all)  inherited,  but  which  have  ungenerously  been  with- 
held from  them,  riguts,  which  they  as  citizens  of  the  state 
of  .New  iork  may  reasonably  and  rightfully  claim.  We, 
might  a  iduce  arguments  both  numerous  and  decisive  in 
support  ot  i  ur  po.-ition,  but  beiiev.ug  that  a  self  evident 
truth  is  sufficiently  plain  without  argument,  and  in  view 
ol  our  necessarily  limited  space,  we  forbear  offering  any 
and  respectfully  submit  it  lor  consideration. 

£  LEAN  OK  VINCENT,         MJSAN  ORMSBY, 
LYDIA  A.  WJLL1AMS,        AMY  ORMSBY, 
LYDI1  OSBORN,  ANNA  BISHOP. 

Aug.  8th,  1846. 

A  report  was  received  from  the  chancery  clerk 
of  the  2d  circuit,  giving  the  amount  of  applica- 
tions  to  the  court  for  the  sale  of  infants'  estates, 
together  >^ith  the  names  of  the  applicants.  Re- 
ferred to  the  select  committee  to  make  an  abstract 
lor  printing. 

THE  JUDICIARY. 

The  Convention  then  went  into  committee  of  the 
whole  on  the  reports  of  I  he  judiciary  committee. 

Mr.  CAMBRELENG  resumed  the  chair. 

Mr.  MORRIS:  In  the  observations  1  shall  make, 
the  course  pursued  by  gentlemen  who  have  pre- 
ceded me,  will  be  adopted,  and  I  will  not  confine 


myself  to  the  consideration  or  the  section  under 
discussion.  [The  Chairman  stated,  as  the  motion 
was  to  strike  out  the  third  section,  the  whole  sub- 
ject was  under  consideration.]  Mr.M.  proceeded. 
I  am  happy  that  it  is  so,  as  it  enables  me  to  pro- 
ceed in  order. 

In  the  observations  I  shall  make,  I  intend  to 
present  such  a  general  judicial  system  as  I  prefer, 
with  this  assurance,  that  I  will  vote  for  that  sys. 
tern  which  shall  the  nearest  approximate  to  my 
views. 

Believing  that  in  organizing  the  judiciary,  as  in 
establishing  the  whole  organic  law,  we  should 
commence  at  the  source — the  people — and  run  up 
to  the  highest  organizations,  [  will  first,  call  the 
attention  of  the  committee  to  the  town  corrta — to 
the  organization  of  the  towns — and  proceed  from 
them  through  the  courts  of  the  county,  and  the 
supreme  court,  to  the  court  of  ultimate  appeals. 

In  my  judgment,  the  agricultural  towns  of  the 
state,  each,  have  too  many  justices  of  the  peace; 
a  less  number  would  efficiently  perform  all  the  re- 
quired duties,  without  that  temptation  to  justices 
to  encourage  litigation,  growing  out  of  their  desire 
to  be  occupied  and  increase  their  compensation 

I  beg  leave  to  make  a  suggestion  to  my  country 
friends,  growing  out  of  the  practical  experience 
of  the  city  of  New  York.  IH  the  city  of  New 
York,  we  have  some  four  or  five  justices'  courts. 
They  are  called  Assistant  Justices' Courts,  though 
they  are  of  the  same  jurisdiction  of  the  Justices' 
Courts  in  the  country.  They  are  thus  organised. 
The  justice  receives  a  salary.  There  is  a  clerk 
to  the  justice  ;  he  also  receives  a  salary.  The 
clerk  gives  a  bond  to  the  corporation.  The  clerk 
issues  all  the  precepts  and  receives  all  the  fees, 
which  fees  he  pays  into  the  treasury  of  the  city. 

The  justice  comes  into  court  in  the  morning; 
the  precepts  are  returned  by  the  marshal,  and  the 
first  the  justice  learns  of  the  subject  matter  of 
the  controversy,  is  when  the  issue  is  joined, 
without  having  before  heard  of  the  matter  in  con- 
troversy, he  hears  the  testimony  of  witnesses,  and 
disposes  of  the  cause.  One  of  these  courts  has 
jurisdiction  over  about  80,000  inhabitants.  The 
causes  he  tries  are  immense  in  number,  and 
truly  immense  in  the  aggregate  of  recovery.  The 
justice  I  particularly  speak  of,  has  been  in  office 
three  or  four  years,  and  has  not  had  more  than 
four  or  five  causes  removed  by  certiorafi,  and  the 
most  of  these  have  been  affirmed.  It  makes  no 
difference  to  him  pecuniarily  whether  he  tries 
one  cause  or  one  thousand  causes.  Though  the 
fewer  he  tries  the  less  labor  he  has  to  perform, 
which  tends  so  far  as  he  is  interested,  to  discou- 
rage rather  than  to  encourage  litigation. 

By  this  method  the  litigants'  fees,  pay  the 
greater  proportion  of  the  expense  that  supports 
the  court ;  though  the  taxable  inhabitants  con- 
tribute towards  the  support  of  the  court,  as  they 
should,  as  a  just  and  prompt  administration  of 
the  laws  by  its  example  and  effect,  relieves  many 
of  them  from  law  suits. 

We  also  have  upon  the  island  of  New  York  jus- 
tices upon  the  same  principles  as  the  justices' 
courts  in  the  country,  where  there  is  no  clerk, 
where  the  justice  issues  his  own  precepts  and  re- 
ceives to  his  own  use  all  the  fees  of  his  office. 
These  courts  are  in  what  we,  who  are  surround- 
ed by  brick  and  mortar  and  walk  on  cobble  stones, 


647 


call  rural  districts,  although  my  country  friends 
I  presume  would  hardly  consider  them  enritled 
to  such  appellation.  The  difference  in  the  prac- 

•  tperation  of  these  courts,  thus  differently  or- 
ganized, is  great.     Certioraris  to  the  rural  courts 
are  very  numerous,  and  it  is  as  strange  that  their 
judgments   should  be   affirmed,  as  that  the  judg- 
ments of  the  other  justice   should   be  reversed. 
Whether  this  great  disparity  in  correct  judgments 
is  owing  to  the  one  justice  living  upon  his  fees, 
or  that  he  has  the  story  of  the  parties  before  trial, 
I  know  not ;  but  such  is  the  working  of  the  two 
systems,   and  that  too  when  the   rural  courts  do 
not  try  more  than  a  tenth  in  number  and  amount 
of  causes  that  are  disposed  of  by  the  justices  un- 
der the  other  system. 

I  make  this  plain  statement  of  facts,  Mr.  Chair- 
man, not  for  the  purpose  of  expressing  a  deter- 
mination that  I  will  insist  upon  a  similar  organi- 
zation for  the  country,  but  to  throw  the  sugges- 
tion out  for  the  consideration  of  the  gentlemen 
from  the  country,  and  to  assure  them,  if  they  ap- 
prove of  such  principle  and  will  introduce  a  sec- 
tion embracing  it,  they  shall  have  my  vote. 

The  business  transacted  in  justices  courts,  is 
the  most  important  to  the  general  public.  It  is 
emphatically  the  business  of  the  masses.  If  we 
succeed  in  establishing  justices'  courts  which  will 
command  and  retain  public  confidence,  the  great 
mass  of  the  business  of  the  people  will  be 
accomplished  in  them,  and  at  home ;  and  as 
regards  the  general  public  the  upper  courts 
will  be  of  minor  consequence.  Have  your  towns 
properly  organized,  and  your  justices' courts  held 
by  honest  and  capable  men,  and  your  upper  tri- 
bunals, as  regards  the  great  mass  of  the  popula- 
tion, will  be  tribunals  only  in  name,  for  by  them 
they  will  be  resorted  to  but  seldom. 

Though  born  in  the  city  and  now  residing  there, 
still  I  practically  know  much  of  the  country 
from  the  p  issage  of  town  laws,  at  town  meetings 
to  the  settlement  of  town  accounts,  and  to  the  ac- 
tion and  duties  of  Boards  of  Supervisors.  Most  oi 
the  towns  of  the  state  have  no  permanent  place 
for  the  records  of  the  town.  In  such  towns,  if  it 
is  necessary- to  have  recourse  to  town  records,  or 
to  the  records  of  a  justice  who  has  died  or  has 
not  been  re-elected,  you  are  obliged  to  look  for 
them  at  private  houses,  and  you  will  be  fortunate 
if  you  find  them. 

I  would  suggest  that  each  town  should  have  a 
town  house — at  this  house  should  be  the  town 
clerk's  oih'ce  in  which  should  be  kept  all  the  rec 
ords  ot  the  town — all  the  town' proceedings.  Th< 
clerk  of  the-  town  should  be  the  clerk  of  the  jus- 
tices of  the  peace  ;  he  should  issue  all  the  pre 

-  of  justices  ot  the    peace,  (except  such  ur 
gent  precepts  as  require  adjudication  before  the} 
are   issued)    which    should  be  made   returnable 
at  the  town  house.       The  justices  of  the    town 
should  alternate  in  trying  the  causes   thus  com 
menced  by  the  precept  issued  by  the  clerk.     Th 
justices  would  then  never  have  heard  the  story  o 
the  parties  until  the  witnesses    disclosed  them- 
the  parties  would  not  know  what  Justice  was  t 
try  their  cause  — and  jurors  could  sit  comfortably 
in  a  room   prepared    fur  them   and  would  not  b 
compelled  to  meet  at  taverns. 

There  should  be  a  county  court  of  review,  t 
which  causes  may  be  carried  by  certiorari  from 


ustices'  judgments.  The  practiced!'  removing 
isticee' judgment  by  appeal  should  be  abolished; 
vitnesses  should  not  be  taken  to  the  county  seat 
o  repeat  their  testimony.  The  practice  of  appeals 
las  been  fraudulently  used  to  injure  the  parties 
ml  harrass  the  public;  parties  have  notexarnin- 
d  their  witnesses  before  justices,  expressly  for  . 
he  purpose  of  increasing  the  expenses  against 
he  opposing  party.  The  injury  to  the  public  by 
n  immense  loss  of  time  and  expense,  is  far 
Teater  than  any  benefit  parties  can  obtain  from 
.ppeals. 

This  county  court  in  my  judgment,  should  be 
•resided  over  by  a  judge  who  should  be  elected 
•y  the  electors  of  the  county— this  judge  should 
Iso  be  Surrogate  of  the  county.  The  court  should 
consist  of  this  judge  and  any  two  of  the  justices 
)f  the  peace  of  the  county.  The  justices  of  the 

"teace  should  alternate  in  sitting  in  this   court. 

?his  court  should  not  only  revise  the  judgmentsjof 
ustices  of  the  peace,  to  affirm  or  reverse,  or  to 
3end  the  case  back  to  be  tried  by  the  same  or  an- 
)ther  justice  in  the  same  or  an  adjoining  town  to 
hat  in  which  the  cause  was  first  tried ;  but  should 
'orm  the  court  of  general  sessions  of  the  peace  of 
:he  county  and  perform  all  those  duties  now 
performed  by  the  county  court,  and  by  its  judges 
within  the  county.  Your  justices  of  the  peace, 
*hus  acting  as  members  of  the  county  court,  re- 
vising each  others  judgments,  and  assisting  in  the 
performance  of  other  duties,  would  be  much  im- 
Di-oved  and  elevated  in  their  judicial  character. 
The  public  would  become  satisfied  with  their  de- 
cisions and  litigation  would  decrease. 

In  my  judgment,  it  is  not  necessary  to  have  a 
court  intermediate  the  Justices'  Court  and  the 
Supreme  Court.  There  is  no  reason,  in  my  judg- 
ment, why  the  circuit  judge  of  the  Supreme 
^ourt  should  not  try  all  issues  of  fact. 

I  am,  sir,  fixed  in  the  principle,  that,  there 
should  be  a  union  of  law  and  equity  ;  not,  sir,  a 
mere  union  of  judges,  but  a  union  of  the  prac- 
tice. I  can  see  no  reason,  sir,  why  A  shall  come 
in  front  of  the  judges  and  prosecute  B  in  law, 
prove  his  case  and  obtain  judgment,  and  that  B 
should  go  behind  the  judge,  file  his  bill  in  chan- 
cery, and  ask  and  obtain  a  perpetual  injunction 
upon  the  judgment  obtained  against  him  by  A. — 
Why  not,  sir,  let  B  state  in  his  plea  to  A's  suit, 
the  facts  which  entitled  him  to  perpetual  injunc- 
tion to  the  recovery  of  A,  and  have  the  matter 
settled  in  the  one  suit  ?  Let  B  have  judgment, 
if  the  facts  are  such  as  to  entitle  him  to  a  per- 
petual injunction  had  judgment  been  rendered 
for  A. 

Let  us  get  rid  of  these  fictitious  cases  where 
John  Doe  and  Richard  Roe  make  a  bet  to  enable 
a  judge  to  do  justice  to  individuals.  Why  not  let 
the  real  parlies  interested,  tell  their  own"  stories, 
instead  oi  having  an  imaginary  suit.  I  have  lis- 
tened attentively  during  this  discussion,  to  the 
gentlemen  who  are  opposed  to  the  union  of  the 
practice  in  law  and  equity,  and  h;ive  also  taxed 
my  recollection  to  discover  a  case  where  the  pro- 
ceedings of  necessity  required  to  be  different,  and 
I  have  not  been  able  to  see  any  reason  why  ihe 
practice  should  not  be  the  same.  When  the  facts 
are  truly  staled,  and  proved,  equity  and  law  can 
both  be  obtained.  "  Law"  means  right  and  jus- 
tice, as  much  so,  as  "  equity"  does.  I  am  opposed, 


648 


sir,  to  giving  to  the  Legislature  the  power  10  cre- 
ate tribunals  of  inferior  jurisdiction.  Insert  a 
clause  in  the  constitution,  that  the  legislature  have 
power  to  add  strength  to  the  same  court,  to  in- 
crease the  number  of  judges  so  that  the  number 
of  trial  courts  may  be  increased.  If  four  judges 
are  not  sufficient  to  transact  the  business  of  a  dis- 
trict, let  their  number  be  increased.  Have  them 
of  the  same  court;  controlled  by  the  same  rule  of 
practice,  and  governed  by  the  same  legal  princi- 
ples. All  your  causes  being  commenced  in  the 
same  tribunal,  under  the  same  practice,  the  rough 
corners  of  the  common  law  will  be  smoothed 
by  the  principles  of  equity,  and  the  law  will  be 
applicable  to  human  nature  as  it  is.  While  up, 
sir,  I  will  make  a  clean  breast  of  it  and  state, 
that,  I  am  in  favor  of  electing  the  judges  by  the 
people.  I  am  in  favor  of  electing  the  judges  of 
the  Supreme  Court  by  general  ticket;  to  take, 
however,  the  justices  from  each  district,  though 
voted  for  by  the  whole  state:  to  be  the  judge 
of  the  whole  state,  not  the  mere  judge  of  the  dis- 
trict. These  are  my  notions  upon  these  subjects 
at  this  time,  and  I  shall  adhere  to  them,  unless  I 
should  be  convinced  that  the  benefits  to  result 
from  a  general  ticket  should  be  more  than  coun- 
terbalanced by  a  purely  sectional  organization  of 
the  Supreme  court. 

Mr.  W.  B.  WRIGHT  said  it  had  been  truly  re- 
marked, in  the  progress  of  thisdebate,  thatamongst 
the  leading  causes  that  originated  this  Conven- 
tion, was  the  imperious  necessity  of  judicial  re- 
form. He  would  go  farther,  and  assert  that  a  re- 
form in  the  judiciary  was,  immeasurably,  the 
most  prominent  of  the  expected  benefits  to  be  se- 
cured. Whatever  portion  of  time,  therefore,  (said 
Mr.  W.)  we  shall  bestow  upon  the  discussion  of 
this  grave  and  important  subject  (ever  keeping 
in  mind  that  our  session  must  necessarily  termi- 
nate by  the  first  of  October  next,)  will  not  be 
wasted  ;  nor  will  it  be  so  regarded  by  those  whom 
we  represent.  The  people  expect  that  upon  this 
subject,  more  than  upon  all  others,  there  shall  be 
a  full,  frank  and  liberal  exchange  of  sentiment, 
and  that  we  shall  approach  it,  not  in  the  spirit  of 
professional  selfishness,  nor  with  contracted  views 
of  hostility  towards  an  enlightened  class  of  our 
fellow  citizens,  but  with  minds  enlarged  and  lib- 
eralized, and  elevated  above  the  influences  of  the 
meaner  passions  that  cling  to  man  in  his  best  es- 
tate. In  a  matter  that  so  deeply  and  vitally  con- 
cerns not  only  the  rights  of  property,  but  the  lib- 
erty, aye,  the  life  of  the  citizen,  there  should  be 
no  sordid  interests  or  narrow  sectional  prejudices 
to  subserve.  If  he  knew  his  own  heart,  although 
an  humble  member  of  the  legal  profession,  he 
could  not  be  controlled  in  the  discussion  and  set- 
tlement of  this  important  subject  by  any  motives 
of  self-interest,  or  by  any  other  motives  save  those 
which  regard  the  promotion  of  the  public  good  ; 
and  whilst  he  might  be  permitted  perhaps  egotis- 
tically, to  say  this  of  himself,  he  cheerfully  em- 
braced the  occasion  to  declare  the  solemn  convic- 
tion of  his  mind,  that  there  was  not  in  this  cham- 
ber or  out  of  it,  an  enlightened  and  high-minded 
member  of  that  profession  to  which  he  esteemed 
it  an  an  honor  to  be  attached,  who  could  be  prompt- 
ed by  avarice  or  cupidity  or  selfishness,  to  desire 
that  the  action  of  the  Convention,  on  this  momen- 
tous subject,  should  be  of  such  a  character  as  that 


the  public  interests  woulft  not  be  fully  subserved. 
Believing  this,  he  deeply  regretted  that,  here  and 
elsewhere,  a  few  individuals  should  be  found  to 
lend  themselves  to  the  illiberal  task  of  exciting 
public  prejudice  and  hostility  against  a  numer- 
ous and  respected  class  of  citizens — of  arraying, 
what  they  denominate  laymen,  against  those  pur- 
suing an  honorable  and  dignified  profession;  but 
whilst  he  regretted  this,  he  rejoiced  in  the  con- 
viction that  the  illiberality  was  confined  within 
extremely  narrow  limits,  and  that  there  was  too 
much  of  magnanimity  and  intelligence  pervading 
the  masses  of  this  great  state,  to  denounce  an  en- 
tire profession,  because  forsooth  a  few  unwor- 
thy members — not  lawyers,  in  the  just  sense  of 
the  term,  for  that  man  whose  mind  is  deeply 
imbued  with  the  cardinal  rules  of  law,  that  are 
but  the  immutable  principles  of  ethics  and  truth, 
can  scarcely  be  otherwise  than  upright  and  hon- 
orable in  his  relations  with  men — because  these 
pettifoggers,  as  they  may  be  properly  called, 
taking  advantage  of  the  eminence  of  their  posi- 
tion, have  at  times  abused  the  public  confidence. 
But  there  was  another  circumstance  that  had 
transpired  in  this  debate,  that  he  still  more  deep- 
ly regretted.  It  was  that  gentleman  attached  to 
the  legal  profession — holding  somewhat  of  an 
elevated  rank  in  it— should  possibly,  to  subserve 
ulterior  ends,  descend  to  the  task  of  giving  some- 
thing of  form  and  shape  to  the  misty,  undefined, 
unshapen  prejudices  that  it  may  be  supposed  pos- 
sess the  minds  of  a  small  part  of  the  co'mmunity, 
arising  as  he  insisted  wholly  from  the  unworthy 
practices  of  the  professional  charlatans  to  whom 
he  had  alluded.  Are  not  these  gentlemen  aware, 
said  Mr.  W.,  that  it  is  a  characteristic  of  preju- 
dice to  grow  and  expand,  and  to  seize  upon  soph- 
istry with  a  zest  outsripping  that  with  which  it 
seizes  upon  truth  ?  Sir,  our  constituents  expect 
that  we  shall  approach  and  discuss  this  deeply 
interesting  subject,  divested  of  all  prejudice 
against  caste  or  profession — divested  of  all  pro- 
fessional selfishness, — with  no  narrow  views  of 
hostility  to  this  or  that  class  of  citizens — with  no 
hidden  purpose  of  elevating  or  prostrating,  by 
our  action,  any  profession  ;  but  with  the  single 
object  of  constructing  a  judicial  system  by  and 
through  which  the  law  may  be  administered,  and 
justice  dispensed,  efficiently,  speedily  and  econo- 
mically. Nor  is  it  expected  that  we  shall  take 
upon  ourselves  the  grave  duty  of  codifying  the 
laws,  or  of  abrogating,  so  far  as  applies  to  our  own 
State,  either  the  common  or  the  civil  law ;  or  of 
maturing  any  system  of  jurisprudence  that  shall 
amalgamate  or  blend  them  together.  This  codi- 
fication would  be  the  labor  of  months,  nay  of 
years,  rather  than  of  days  allotted  to  our  session  ; 
if  indeed  it  could  ever  be  successfully  accomplish- 
ed. But  he  begged  leave  here  to  remark,  that 
the  intimation  thrown  out,  that  in  this  State,  now 
or  hereafter,  the  common  law  may  be  in  jeopar- 
dy— that  it  may  be  supplanted  by  an  imperial 
code,  originating  in  the  despotic  ages  of  the  Ro- 
man empire,  and  that  now  measurably  sup- 
poses "  a  discretion  in  the  judge,  which  in  the 
law  of  tyrants" — had  filled  his  mind  with 
alarm ;  and  he  was  sure  that  the  carrying  out  of 
such  a  project,  should  the  thought  emanate  here, 
would  induce  the  people  to  lament,  for  all  future 
time,  the  call  and  assembling  of  this  Convention. 


649 


^ the  occasion  to  say  that  he  was  o 

toVny"  judicial  system  which  contemplated,  even 
remotoly,  the  abrogation  of  the   common  law. — 
What  is  the  common  law  ?     A  system  of  princi- 
ples and    precepts,  founded  in  reason  and  truth, 
reduced  to  order  by  the  wisdom  of  ages,  *hat  jus- 
tice may  be  administered,  by  unchanging  rules, 
not  to  the  distinguished  and  great  alone,  but  to^all 
mankind.  It  had  contributed  more  to  the  promotion 
of  human  liberty-more  to  the  elevation  of  the  mas- 
ses in  the  scale'of  political  and  social  existence — 
than  probably  all  other  influences  combined.  Why 
is  it  that  in  the  old  world  rational  liberty  exists  on- 
ly with  the  masses  of  England— that  property  and 
life  secure  ?     Because  ot  the   benign  \id  blessed 
influences  of  the  common  law.     Why  is  it  that 
dignity  and  public  confidence  have  been  largely 
imparted  to  the  higher  courts  of  this  State  ?     Be- 
cause justice   has   been  diligently  and  faithfully 
meted  out  through  the  prescribed  forms  and  upon 
the  pri  nciples  of  the  common  law.     True,  that  in 
those  forms  there  are  detects — palpable,  glaring 
defects.     These  may  and  should  be  remedied. — 
There  are,  what  appears  to  us  now,  absurdities, 
that  may  be  removed      But,  in  the  language  of  an ' 
eminent  British  civilian,  (which  he  begged  leave 
to  quote,)   "  Notwithstanding  the  rudeness  and 
defects  of  the  common  law,  we  should  ever  re- 
member its  favor  to  personal  liberty,  and  its  ad- 
mirable machinery  for  separating  law  and  fact, 
and  assigning  each  to  a  distinct  tribunal;  where- 
in it   excels  all   other  systems  of  jurisprudence 
that  have  appeared."     It  should  be  the  task  of 
the   present  day  to  render  that  machinery  less 
complicated;    not   to  utterly  demolish    it.     But 
enough  on  this  point.     He  could  not  suffer  the  oc- 
casion to  pass  without  entering  his  solemn  and 
deliberate  protest,  at  the  threshhold,  against  any 
attempt  to  overshadow  the  common  law  by  any 
other  system  ;••''  jurisprudence.     It  has  been  (said 
Mr.    W.)   well   remarked,  that   in  organizing  a 
judicial  system — or   rather   in  constructing  the 
frame  work,  as  little  else  can  be  done  by  constitu- 
tional provision, — we  should  first  ascertain  the  de- 
fects of  the  existing  one ;  for  after  all,  our  duty  is 
not  to  construct  a  system,  fanciful  and  untried  in 
all  its  parts,  but  to  remedy  defects  which  experi- 
ence has  shewn  in  that  which  exists.     Many  of 
these  defects  are  apparent — they  are  as  familial-  to 
lay  <is  proiessional  men — and  any  plan,  therelore, 
which 'it  is  thought  will  most  effectually  icinedy 
them,  should  addiess  itself  to  oui  favorable  con 
sideiation.     He  proposed  briefly  to  glance  at  some 
of  these   defects,    with  the  view    of  ascertaining 
whether,  by  the  plan  proposed  by  the  majority  o 
the  judiciary  committee,  they  would  probably  be 
obviated.     In  the  first  place,  (said  Mr.  W  )  a  rad 
cal  defect  in  the  present  system  is,  that,  by  its  or- 
ganization, neither  puimro  or  the  public  have  that 
confidence  in  the  HU&rio.r..  .courts  of  record  which 
is   absolutely  necessary  for  the   effective,  expedi 
tious   an'd**eTOnomical  working   of  the  system. — 
Hence    expense  and    delav  have,  in  some   degree 
their  origin  in  this  source      Were  this  confidence 
fully  extended  to  one  court  of  oiiginal  jurisdiction 
it  requires  little  sagacity  to  foresee  that  much  o 
delay  and  expense,  at  present  incident  to  a  suit  a 
law,   would    be  avoided.     Could  the  suitor  enter 
tuin  entire  confidence  in  the  capacity  and  integri 
ty  of  the  judge  (hat  first  tries  his  cause — oould  h 


eel  that  his  case  had,  at  the  outset,  been  conectly 
and  fairly  adjudicated — there  would  be  an  absence 
motive  and  desire  to  encourage  appellate  juris- 
dichnn.     By  our  present   system,  riot  only  suitnis 
but  the    public  have    lost  all    confidence  in  these 
iferior  courts.     With   a  very  few  honorable  ex- 
c.-ptions,  alluded    to   yesterday  by  tlie   gentleman 
from    Erie,    (Mr.  STOW)    our    courts  of  common 
leas  have  become  a  by- word  of  reproach  ihroughi 
out  the  state.     No    person   has  any  confidence  in 
them,    and  least  of  all  the  legal   profession.     As 
has  been  truly  said,  the  piofession  will  not,  nor 
cannot  promise  success  to  a  client,  however  sirorg 
his  case  may  be,  who  seeks  his    remedy,  or  looks 
for  justice  through  the  medium  of  a  court  of  com- 
mon pleas.    Hence  ii  is  that  much  ot  the  business 
that  now  crowds  our  appellate  courts,  has  iis  on- 
gin    in,   or    has  necessarily    passed    thiongh,  the 
common  pleas.     The  cause*  of  this  want  of  confi- 
dence are    apparent.     The  judges  know  H'tle  el 
the  elements,  much  less  of  the  pratice  of  the  law: 
they   are  unfitted  by  their   ordinary  avocations  to 
correctly  discharge    the  ptave    «1nty  thrown  upon 
them — (their   slender    and  insufficient  compensa- 
on  not  justifying  the  devotion  of  any  portion  ot' 
heir  time,  off  the    bench,  to   legal  studies) — atxt 
o  tar  as  experience    had  enabled    Itim  to   form  a 
nnclusion,  theirdecisions  are  note  frequently  lr>e 
flspring  of  impulse  and  prejudice  than  of  delibt- 
ation  and  enlightened  reason-    Besides,  they  are, 
oa  great  extent,  partisan  judges,  o\\ing  norespor  - 
ihility  to  the  people — they  are  sometimes  appoint- 
ed more  tosubserve  partisan  than  judicial  purpose*-, 
and  there  have  been  cases  where   from  the  fact 
hat    thev  owed  their  selection,  not  t'>  their  own 
merit,  but  to  the  influence  of  one  member  of  the 
>ar,  they  have  become  his  willing   creatures. — 
N'ow,  can  it  be   wondered    at  that  there  should 
>e  so  little  of  public  confidence  reposed  in  these 
ribunalsf      Should    it    be   a   surprising    matter 
hat  the    calendars  of  your    supreme    court   are 
umbered    up    with    cases    that    have 
n  or   passed  through  the  common  pleas  ?      But 
here  are   other    circumstance*   connected    with 
hia  common    pleas    tribunal  that    tend  to  bring 
the  entire  administration  of  law  into   disrepute, 
and    loan    the    people    with    unnecessary    and 
oppressive    burdens.      When   we   speak  of   de- 
lay and  expense    to  suitors,   who  are  compel- 
led in  many  cases,  by  statute,  to  pass  through 
this  court,  it  is  only  of  those  who  have  the  pecu- 
niary ability  to  resort  to  appellate  jurisdictions. 
But  to  those  with  limited  means,  not  only  is  there 
no  redress,  but  the  law   erroneously  administer- 
ed, addresses  itself  neither  to  the  reason  or  the 


respect  of  the  citizen.  Again,  this  court,  so  in- 
efficient and  unpopular,  so  destructive,  at  times, 
of  the  ends  of  justice  and  of  law,  costs  more  to 
the  people  of  this  State  than  all  your  other  courts 
of  record  of  every  grade.  Yet  there  are  gentle- 
men upon  this  floor  disposed  to  continue,  in  some 
way,  this  onerous  and  odious  system.  The  gen- 
tleman from  Oneida,  (Mr.  KIRKLAND,)  not  now 
in  his  seat,  stated  the  other  day,  in  a  very  able 
exposition  of  his  views  upon  judicial  reform,  that 
he  did  not  believe  that  the  people  were  prepared 
to  give  up  their  county  courts — their  domestic 
tribunals — that  a  vast  amount  of  business  was 
done  in  them — and  he  proposed  in  his  plan  to 
confer  additional  powers,  that  of  Surrogate,  upon 

56 


650 


their  chief  officer.    Now,  said  Mr.  W.,  let  me 
say  to  any  gentleman  who  coincides  in   opinion 
with  the  gentleman  from  Oneida,  that  he  widely 
mistakes  the  public  sentiment  on  this  subject. — 
Eight-tenths  of  the   people  of  this  great  State, 
could  they  vote  on  that  distinct  question,  would 
wait  eagerly  and  impatiently  for  the  opportunity 
to  forever  blot  out  these   "  domestic  tribunals" 
from  our  system  of  jurisprudence.     Is  it  any  rea- 
son because  the  legislature   has   imposed  upon 
these  courts  multifarious   duties,  rarely  perform- 
ed, but  if  performed,  in  many  cases,  erroneously 
or  imperfectly,  that  they  should  be  continued  ? — 
Cannot  these  duties  be  transferred  to  other  offi- 
cers, or  other  tribunals,  where  they  may  be  more 
effectively  exercised  ?    Certainly,  gentlemen  can- 
not fail  to  see  how  easily  this  may  be  accomplish- 
ed.    Of  these  duties  the  attention  of  the  commit- 
tee has  been  particularly  drawn  to   the  powers 
now   exercised    by    the  common    pleas   judges 
on   appeals  from   the   orders    of  commissioners 
of   highways,    and     it    has     been     rather    sig- 
nificantly asked,  where  this  power  would  be  lodg- 
ed ?     The  case  (said  Mr.  W.)  cannot  be  regarded 
as  a  fortunate  one,  as  in  his  judgment,  should  the 
court  be  continued  it  should  be  forthwith  disburth- 
ened  of  this  duty.     Were  it  intended  to  bring  a 
court  into  public  disrespect,   probably   no  more 
successful  mode  could  be  devised  than  to   charge 
its  judges  with  the  power  of  itinerating  from  town 
to  town  of  a  county  to  settle  disputed   questions 
in  relation  to  the  location  of  a  district  road  !  Some 
gentlemen  have  said  that  they  would  continue  the 
county  courts  for  the  purpose  of  hearing  certioraris 
and  appeals,  and  doing  the  minor  business.     The 
bulk  of  the  business  they  now  do  is  of  this   char- 
acter ;  and  to  continue  these  powers    in    their 
hands  would  be,  in  effect,  a  continuance   of  the 
old  system.     Now,  sir,  the  majority  report  of  the 
judiciary  committee  proposes  to  abolish  these  in- 
ferior and  inefficient  courts  of  record  and  to  bring 
near  to  the  people  in  the  shape  of  a  court  of  orig- 
linal  jurisdiction  one  that  shall   be   uniform,  effi- 
cient, enlightened,  and  which  will  commend   it- 
lielf  to  public   confidence — it  proposes  that  the 
law  shall  be  administered,   at  the  threshhold,  in 
such  a  way  as  shall   command   popular  respect, 
and  subserve  public  justice — the  end  of  all  judic- 
ial administration.     In  this  respect  it  command- 
ed his  cordial  approbation,  and  the  great  princi- 
ple which  it  established  should  receive  his  hearty 
support.     It  would  go  far  to  restore   public  con- 
fidence in  our  courts  for  the  trial  of  issues  of  fact 
and  in  proportion  as  that  confidence  should  be 
entertained,  would  expensive,  protracted  litiga- 
tion cease.     Another  of  the  defects  of  the   pres- 
ent system  (said  Mr.  W.)  is  the  expense  and  ne- 
cessary delay  incurred  by  suitors  and  the  public. 
The  principal  causes  of  these  evils,  in  the  high- 
er courts,  may  be  found  in  the  inadequacy  of  the 
judicial  force,  and  the  multiplication   of  appel- 
late courts.     It  is  not  in  the  possibility  of  things 
that  three  men — nay,  that  ten  men— should   dis- 
charge the  vast  legal  duty  thrown  upon  them  by 
the  present  system,  or  that  one  man,  with   orig- 
inal and  appellate  jurisdiction,  should'accomplish 
the  equity  labor  of  this  wealthy    and   populous 
state.     Hence  causes  have  accumulated  by   hun- 
dreds upon  the  calendars  of  your  courts,  only  to 
be  finally  disposed  of  after    years  of  delay  anc 


a  large  expenditure  of  m^ans,  by  the  public   and 
itigant  parties.     It  is  not  the  delay  and  expense 
>f  bringing  a  cause  to   issue  and   trying  it  in  a 
;ourt  of  original  jurisdiction,   that   have   called 
brth  the  loudest  complaint — it  is  because   when 
a  man  gets  into  court  there  is  no  certainty   that 
le  wilf  get  out  of  it  in  an  ordinary  life  time,  and 
should  he  succeed,  there  is  something  of  a  cer- 
"ainty  that  the  expenses  of  protracted  litigation 
vill  have  materially  impaired  his  fortune.     Now 
t  would  seem  a  simple  matter  to  remedy  these 
defects.      Yet,  under  the  present    system   they 
could  not  be  wholly  remedied  by  an  increase  of 
"udicial  force  in  the  higher  courts,  even   though 
hat  force  were  distributed  into  sections  through- 
out the  state.     Something  more  must  be  done, 
and  that    the  majority    report  proposes    to  do, 
viz :  to  diminish    the  number   of  the   appellate 
courts,  and  if  he    might  be    permitted  to  use  a 
vulgar  phrase  in  illustration,  to  place  the  courts 
"the  right  end  foremost."      In  his  judgment  the 
present  system  invited  litigation,  and  encourag- 
sd  delay  and  expense  in  the  administration  of  the 
Law,  without  benefiting  the  public,   the  suitor, 
the  lawyer,  or  any  one  else  but  him  who  subsists 
upon  the  "spoils  of  office."      There  is  a  class  of 
men  in  all  communities,  who,  if  you  had  a  dozen 
appellate  courts,  would  not  be  content  until  they 
had  each  been  resorted  to.     Again,  we  commence 
a  suit  now  in  a  court  having  the  least  of  legal  ca- 
pacity or  public  confidence — the  next  step  brings 
us  nearer  to  that  which  is  desirable  in  a  court — 
and  after  one  or  two  further  steps  we  reach  that 
judicial  tribunal,  where  from  its  exalted  charac- 
ter and  the  capacity  of  its  members,  public  confi- 
dence centres.      Now  so  long  as  there  is  a  want 
of  confidence,   even  slightly,  in  these  intermedi- 
ate courts,  there  is  a  tendency  in  the  human  mind 
to  reach  forward  to  that  tribunal,  where  full  con- 
fidence is   reposed.       But  should  we  by  any  sys- 
tem reverse  this  order  of   things — send  into    our 
counties  to  exercise  sole  and  original  jurisdiction, 
judges,  who    from  their    exalted    character  and 
acknowledged   ability,  and  dispossessed  as  they 
necessarily  must  be   of  local  feeling  or  prejudice 
— shall  command    public  respect  and  confidence 
at  the  outset — multiply  their  numbers  so  that  the 
business  may  not   only  be   correctly  but  expedi- 
tiously  performed — let    the  nisi  prius    and  bane 
courts  be  held  by  the  same  individuals — organize 
but  one  appellate  court  for  the    correction  of  er- 
rors— and  he   believed  that  neither  the  public, 
nor  the   professional  man,  nor  the  suitor,  would 
have  reasonable  cause  to  complain  of  delay  or  ex- 
pense in  the    administration  of  law  or  equity. — 
The  majority  report  contemplates  the   carrying 
out  of  these  leading  principles.     The  only  doubt 
on  his  mind  had  been,  whether  the  force  propos- 
ed would   be    adequate    to  the    expeditious  dis- 
charge of  the  vast  and  constantly   accumulating 
judicial  business  of  the  State.  The  interesting  and 
admirable  statement  of  the  hoaorable  chairman 
of  the  judiciary  committee  had    satisfied  him  up- 
on this  point.     But  if  the  force  was  deemed  in- 
adequate he  would  increase  it  now;    for  he  was 
wholly  opposed  to  conferring  authority  upon  the 
legislature  to  establish    inferior    courts   of  civil 
jurisdiction.     If  this  power  should  be  conferred, 
he  had  a  dread  that  hereafter,  in   some  unlucky 
hour,  something  like  our  present  common  pleas 


651 


MI  might  be  fastened  for  evil,  on  the  state. 

:i(!i-  defect  in  our  judicial  sytem  seemed  to 
him  in  having,  in  the  same  court,  one  class  of 

>  silling  in  bane  and  another  at  nisi  prius. 

admirable  working  of  our  judicial  system, 
prior  to  IS21,  when  the  judges  of  the  Supreme 
court  sat  in  bane  and  at  nisi  prius,  appeals  with 
peculiar  force  alter  an  experience  of  twenty-five 
under  the  present  system.  It  is  certainly 
important  to  the  suitor  that  he  should  have  a  judge 
to  try  his  cause  who  may  afterwards  sit  in  bane 
with  others  to  review  the  case  ;  and  it  is  impor- 
tant to  the  judge  that  he  should  mingle  with  the 
people,  acquire  their  confidence,  consider  him- 
self as  one  of  the  millions  embarked  in  the  great 

•I  of  State,  instead  of  shutting  himself  out 
from  intercourse  and  fellowship  with  the  masses. 
This  detect  the  majority  report  proposes  to  cor- 
rect. Another  defect  is,  that  the  mode  of  the  ap- 
pointment of  the  Judges,  and  the  tenure  of  the 
judicial  office,  render  them  not  only  independent 
of,  but  wholly  irresponsible  to  the  people.  With 
the  exception  of  justices  of  the  peace,  our  judi- 
ciary force  is  created  by  a  central  power,  and  the 
tenure  of  office  of  the  judges  of  the  supreme  court 
Circuit  Judges  and  chancellor,  is  in  effect  for  life. 
The  result,  is  that  there  has  grown  up  in  this  State 
what  may  be  denominated  a  judicial  aristocracy, 
feeling  no  responsibility  to  the  primary  source  of 
all  power.  The  evils  growing  out  of  such  a  sys- 
tem have  struck  each  member  of  the  judiciary 
committee  with  more  or  less  force.  All  agree 
upon  remedying  the  evils  in  part — all  recommend 
a  diminution  of  the  term — all  are  not  disposed, 
however,  to  go  the  length  of  directly  entrusting 
the  people  with  the  election  of  the  judiciary. — 
What  are  the  objections  to  entrusting  them  with 
the  power?  In  his  opinion  they  were  exceed- 
ingly specious,  and  not  sustained  by  experience  ! 
The  gentleman  from  Albany  (Mr.  HARRIS)  yes- 
terday ably  demonstrated  this  truth.  It  is  said 
that  the  judiciary  should  not  be  subjected  to  po- 
pular excitement  or  partizan  influence.  Under 
the  plan  proposed  by  a  majority  of  the  judiciary 
committee,  can  any  reasonable  dread  be  appre- 
hended that  in  the  election  of  these  officers  unu- 
sual popular  excitement  will  exist,  and  are  they 
not,  by  the  present  rno4e  ot  appointment,  sub- 
jected to  partizan  influence  ?  Who  selects  most 
of  your  judges  now  ?  The  politicians  of  a  party 
caucus.  He  meant  no  disrespect  to  the  present 
judges  of  the  Supreme  court,  indeed  he  enter- 
tained the  highest  confidence  in  their  capacity 
and  moral  worth,  but  he  would  ask  has  a  judge 
been  appointed  in  this  State  for  the  last  twenty- 
five  years  who  was  not  a  partizan  ?  Nay,  has  not 
the  oifice,  in  numberless  instances,  been  bestow- 
ed as  a  reward  for  partizan  services,  and  will  it 
not  be  again  should  the  system  ot  appointment  be 
continued  ?  Again,  experience  had  shown  that 
the  people  are  not  apt  to  err  in  the  discharge  of  a 
duty  of  this  grave  character.  More  than  three 
lli.i'j.-,.im!  jtHu-ial  i  ilicers,  in  this  slate,  are  at  this 
niumuiit,  elective  by  (he  people,  and  who  will  de- 
cl;u>:  lh.it  the  present  incumbents  ot  the  oilice  ol 
justice  ot  the  peace  may  not  creditably  compare 
wiih  those  once  selected  by  a  central  power?  So, 
also,  the  highest  couit  of  the  State  has  ever  been 
elective  ,  bui  lie  had  never  heard  it  alleged  that 
the  abrogation  of  the  court  for  the  correction  of 


errors  was  desirable  on  account  of  legal  incapaci- 
ty or  inefficiency,  although  so  far  as  it  is  concern- 
ed, that  care  has  not  been  taken  by  the  people  in 
the  selection  of  its  members  (they  being  regarded 
rather  as  legislators  than  judges,)  that  might  have 
been  expected  had  it  exercised  judicial  power 
alone.  /  Now,  it  seemed  to  him  if  the  principle 
was  correct  to  subject  to  the  popular  ordeal  the 
highest  and  lowest  of  the  judicial  officers,  it  was 
equally  correct  to  apply  it  to  those  intermediate. 
For  his  own  part,  he  had  no  fears  in  submitting 
these  selections  to  the  popular  judgment.  He 
had  had  occasion  often  to  mark  the  caution  and 
circumspection  with  which  the  most  violent  par- 
tizans  approach  the  choice  of  their  inferior  magis- 
trates, and  he  believed  that  a  far  t;reater  degree  of 
circumspection  would  be  exercised  in  the  selec- 
tion of  those  of  a  more  elevated  grade.  In  the 
choice  of  judicial  officers  partizan  influences  never 
could  wholly  prevail,  nor  popular  opinion  be 
moulded  and  controlled  by  demagogues.  Another 
defect,  said  Mr.  W.,  is,  (and  it  goes  far  to  lessen 
the  dignity  of  the  judge,  which  some  gentlemen 
have  so  deeply  at.  heart)  that  judicial  officers  may 
descend  to  receive  fees  or  perquisites,  or  that  they 
may  dispense,  in  any  way,  official  patronage.  He 
did  not  know  how  others  might  feel,  but  to  him  it 
was  a  mortifying — he  might  say,  a  disgusting  spec- 
tacle—to  witness  a  high  judicial  functionary  descen- 
ding from  his  eminent  position  to  receive  a  paltry 
fee  for  granting  an  order  or  taxing  an  attorney's 
bill  of  costs;  and  it  became  still  more  so,  when  he 
saw  him  engage  in  a  petty  partizan  struggle  'to 
appoint  some  favorite  either  to  the  office  of  dis- 
trict attorney,  clerk,  register  or  injunction  master 
of  his  court.  The  report  of  the  majority  proposes 
to  elevate  these  judges  above  all  malign  influen- 
ces arising  from  these  sources.  It  proposes  to 
give  them  an  ample,  fixed  compensation — to  pro- 
hibit the  taking  of  fees  in  any  case — it  gives  them 
no  power  of  appointment — and  therein  it  reaches 
public  desire  and  expectation.  Another  defect 
to  which  hewrould  allude,  was  the  multiplication 
of  inferior  officers  or  attaches  to  the  courts. — 
When  the  suitor  is  now  presented  with  a  large 
bill  of  costs,  the  fault  of  its  extent  lies  not  with 
the  attorney  or  solicitor.  That  bill  is  swelled  to 
its  enormity  by  the  fees  of  these  officials.  The 
gentleman  from  Oneida  gave  the  other  day  apt 
illustrations  of  this  truth,  in  the  cases  of  examin- 
ers and  masters  in  chancery.  The  majority  re- 
port— he  might  say  all  the  reports — contemplate 
the  abolition  of  many  of  these  offices,  and  for  this 
the  profession  would  thank  them, — for  this  every 
layman,  whether  he  shall  hereafter  employ  the 
courts  or  not,  should  thank  the  distinguished  gen- 
tlemen composing  the  judiciary  committee.  It  is 
a  ready  and  united  response  to  universal  public 
sentiment.  Now,  if  the  adoption  of  the  majority 
report  would  cure  these  leading,  prominent  de- 
fects, (and  he  believed  that  in  a  great  measure  it 
would,)  should  not  that  report  be  received  with 
consideration  arid  favor;  especially  as  the  Con- 
vention were  likely,  by  the  multiplicity  of 
plans,  to  fall  into  extricable  confusion.  It 
cannot  be  expected  that  all  shall  be  suited — 
all  our  peculiar  notions  of  judicial  reform  can- 
not be  embraced  in  one  system — perhaps  no 
system  that  can  be  framed  will  be  perfect, 
either  in  its  theory  or  detail.  He  did  not  say 


652 


that  the  system  proposed  by  the  majority  of 
the  judiciary  committee  had  perfection  stamped 
upon  it — nay,  he  observed  in  that  system  an 
ovil,  (not  from  the  necessity  of  things  to  be  avoid- 
ed) which  measurably  impaired  that  most  desira- 
ble object,  the  unity  of  the  Supreme  Court — but 
because  that  it  will  radically  reform  present 
abuses,  and  remove  present  prominent  and  glar- 
ing defects,  it  should,  in  its  leading  features,  re- 
ceive his  vote.  He  would  have  preferred — he 
still  preferred — that  constitutional  provision 
should  be  made,  somewhat  conformable  to  the 
suggestions  of  the  gentleman  from  Albany,  (Mr. 
HARRIS,)  for  the  prescribing  of  such  rules  and 
forms  of  practice  in  the  supreme  court,  from 
time  to  time,  as  should  tend  effectually  to  sim- 
plify the  practice  and  reduce  the  expenses  of 
that  court;  but  if  it  cannot  be  done  now,  all 
know  that  the  power  is  in  the  legislature  to  be 
exerted  at  any  future  time.  One  word  further 
in  conclusion.  He  regretted  to  differ  with  his 
esteemed  friend  from  Monroe,  (Mr.  STRONG',) 
but  he  was  opposed  to  changing  the  present  cha- 
racter and  condition  of  justices'  courts,  and,  by 
constitutional  provision,  extending  their  juris- 
diction. With  their  present  jurisdiction,  an  im- 
mense sum  of  litigation  finds  its  way  into  them, 
to  be  decided  far  from  satisfactorily  to  the  public 
in  numberless  instances.  He  was  unable  to  sat- 
isfy his  mind  that  the  people  desired  any  further 
extension  of  jurisdiction  to  these  inferior  tribu- 
nals, but  on  the  other  hand,  he  believed  that  they 
were  content  that  they  should  be  let  alone.  He 
had  satisfied  himself  that  in  the  proportion  that 
power  may  be  extended  to  these  courts,  should 
petty,  sectional  and  neighborhood  strifes  and  con- 
troversies be  increased  :  for  the  court  of  a  justice 
of  the  peace — wherein  neighborhoods  assemble 
and  enlist  in  behalf  of  one  or  the  other  of  the  liti- 
gants— is  peculiarly  the  arena  for  engendering 
animosity  and  strife,  that  years,  may  not,  in  some 
cases  allay.  Thus  these  tribunals,  designed  for 
public  benefit  are  often  times,  incidentally,  pro- 
ductive of  serious  mischief.  He  doubted  the  poli- 
cy of  extending  the  sphere  of  this  indirect  and 
perhaps  unavoidable  evil. 

Mr.  PERKINS  suggested  that  the  question  had 
better  be  taken  now.  The  principal  part  of  the 
discussion  had  been  on  this  section.  The  great 
question  involved  in  it  was  whether  we  would  or 
would  not  have  a  court  with  equity  and  law  pow- 
ers, or  a  separate  court  for  each.  This  disposed 
of,  the  Convention  would  be  better  prepared  to 
discuss  the  other  matters. 

Mr.  O'CONOR  urged  that  the  better  plan  would 
be  to  take  the  question  on  one  of  the  resolutions 
heretofore  submitted,  as  that  would  distinctly  set- 
tle a  principle  without  reference  to  details. 

Mr.  W.  TAYLOR  thought  it  was  necessary  to 
know  what  was  to  be  done  with  the  inferior  courts 
before  any  other  question  was  decided,  as  upon 
that,  in  his  opinion,  hung  all  the  rest 

Mr.  LOOMIS  was  opposed  to  going  back.  In 
his  opinion  the  debate  could  as  well  proceed  on 
these  sections  as  upon  the  resolutions  involving 
the  same  principles. 

Mr.  PATTERSON  also  urged  that  the  question 
should  be  taken  on  the  section,  as  that  involved 
the  single  question  whether  law  and  equity  pow- 
ers should  be  united  in  the  same  tribunal,  and 


thus  a  direct  and  distinct  vote  could  be  had  on 
the  principle. 

Mr.  JORDAN  examined  into  and  stated  the  ef- 
fect of  the  section  as  it  stood,  and  as  proposed  to 
be  amended  by  the  gentlemen  from  Kings  and 
Herkimer— preferring  the  original  section.  But 
he  thought  there  was  good  sense  and  propriety  in 
the  suggestion  of  the  gentleman  from  Otsego/an<$ 
the  substitution  of  the  word  "general"  before  the 
word  "jurisdiction,"  instead  of  the  words  "the 
same,"  would  be  an  improvement  of  the  section. 
As  to  the  13th  section,  which  gave  the  legislature 
power  to  establish  inferior  courts — it  was  a  very 
broad  section,  and  it  might  well  be  a  question 
whether  it  ought  not  to  be  amended  materially. 
As  to  the  principle  of  bringing  these  two  juris- 
dictions of  law  and  equity  together  in  the  same 
hands,  he  believed  it  would  work,,  and  with  a  tol- 
erable degree  of  success,.  And  regarding  it  as  a 
settled  point  that  these  two  jurisdictions  would  be- 
put  into  the  hands  of  the  supreme  court,  then  the 
amendment  of  the  gentleman  from  Otsego  would 
be  all  that  was  necessary.  But  in  relation  to  the 
proposition  of  the  gentleman  from  New- York,  to 
amalgamate  or  fuse  these  courts  into  one — putting 
them  as  it  were  into  a  crucible  and  melting  therm 
down,  so  that  you  could  not  tell  which  was  law  and 
which  equity — some  gentlemen  entertained  great 
doubts  about  it.  But  he  did  not  see,  though  he 
had  been  in  practice  many  years,  and  devoted  hi» 
attention  to  it  more  than  to.  law  or  constitution- 
making — he  did  not  see  how  he  could  with  any 
degree  of  facility,  get  up  a  system  of  practice,  un- 
der existing  laws,  that  would  operate.  But  he 
was  with  them  in  this  sentiment,  that  if  it  could 
be  made  to  operate  he  was  willing  to  see  it  so — 
that  is,  to  expedite  and  cheapen  justice.  But  if 
we  placed  these  two  jurisdictions  in  the  supreme 
court,  subject  to  regulation  by  law — and  if  the  le- 
gislature thought  there  was  a  probability  of  bring- 
ing them  together,  this  section  would  leave  tha 
matter  open  for  this  purpose  to  the  plastic  hand 
of  the  legislature  gradually  to  bring  about  the 
consummation  desired,  and  which  he  should  like 
to  see,  if  practicable.  All  agreed  substantially 
in  the  ultimate  end  to  be  attained,  if  practicable, 
though  we  differed  materially  as  to  the  mode  of 
arriving  at  it.  Mr.  J.  said  he  had  heretofore,  on 
the  spur  of  the  occasion,  submitted  some  general 
remarks  on  this  whole  system.  He  should  take 
some  suitable  opportunity  hereafter  to  show  how 
the  committee  contemplated  carrying  out  this 
machinery  from  beginning  to  end — its  motive 
power — and  how  every  part  and  portion  of  it 
might  be  filled  out  by  the  legislature — how  jud- 
ges are  to  be  selected  and  classified — how  clerks 
were  to  be  appointed,  &c.  &c.  As  yet  we  had 
discussed  general  principles — and  having  formed 
the  skeleton,  it  was  incumbent  on  the  committee 
to  show  it  was  to  be  clothed  with  flesh  and  blood, 
and  set  in  motion.  That  he  should  undertake  to 
do,  and  to  contrast  the  plan  with  that  of  the  gen- 
tleman from  Chautauque  (Mr.  MARVIN.) 

Mr  RICHMOND  v\as  prepared  to  vv/teupon  the 
question  of  the  union  u!  the  courts  oi  law  and 
equity,  and  had  been  from  I  he  day  this  leporc 
reuott  came  in.  But  he  WdS  not  prepared  to  vote 
for  this  third  section  as  reported  by  ihe  commir- 
lee,  unless  ii  was  more  satisfactorily  explained 
than  it  had  yet  been.  He"  believed  that  the  latter 


653 


part  of  the  section  (which  says  the  Supreii 
Court  shall  have  this  law  and  equity  jurisdiction 
subject  to  regulation  by  law)  would  give  the  Le 
gislature  power,  were  they  so  disposed, to  appoii 
direct  the  appointment  of  officers  occupyi 
5  same  position,  and  doing,  perhaps  the  vtr 
ne  husmess  now  dune  by  ;he'  masters  and  ex 
liners  in  Chancery,  which  would  in  his  opini 
only  cha.'iging  the  name,  but  retaining  the  sut 
stance  of  a  system  which  had  become  justly  ob 
noxious  to  a  very  large  portion  of  the  people 
this  state.  He  might  be  mistaken  about  this,  bu 
he  thought  he  had  just  grounds  of  fear:  at  a 
events  he  was  of  the  opinion  where  language  wa 
doubtful,  it  was  best  to  amend  so  as  to  make 
plain  and  distinct  so  that  all  could  understan 
if,  and  it  had  long  been  a  standing  rule  with  him 
Mr.  R  ,  to  call  things  by  their  right  names.  Th 
gentleman  from  Chautauque  (Mr.  MARVIN)  th 
other  day  put  certain  questions  to  the  corn 
mittee  who  reported  this  article  *  as  to  wh 
were  to  discharge  the  duties  of  some  three  hundre 
subordinate  officers  in  these  courts,  as  now  organ 
ized,  earning  the  impression  as  he,  Mr.  R  ,  un 
derstood  him,  that  the  system  as  reported  b 
the  committee  would  be  likely  to  be  overloade 
with  business,  if  the  judges  had  to  take  all  Ih 
testimony  in  chancery,  and  do  all  other  dutie 
which  there  was  a  probability  this  system  woul 
put  upon  them.  A  member  of  the  committee  re 
plied  that  it  might  be«necessary  for  the  Legisla 
ture  to  appoint  certain  officers  to  do  a  portion  o 
this  work. 

Mr.  LOOMIS  :  To  whom  does  the  gentleman 
allude  ? 

Mr.  RICHMOND : 
Herkimer. 

Mr.  LOOMIS  said  the  gentleman  had  totallj 
misapprehended  him.  He  had  been  most  decid 
ed  for  a  long  tin;?  against  the  continuance  of  mas 
ters  and  exe  miners. 

Mr.  RICHMOND  still  feared,  notwithstanding 
this  explanation,  that  if- we  adopted  this  section 
something  would  grow  up,  he  cared  not  what  i 
was  called,  of  precisely  the  character  of  masters 
and  examiners.  He  desired  to  call  attention  to 
this,  that  it  might  be  fully  garded  against.  He 
wanted  things  called  by  their  right  names.  He 
would  not  leave  a  door  open  for  the  Lagislature 
to  create  another  batch  of  these  officers. 

Mr.  JORDAN  called  the  attention  of  the  gen- 
tleman to  the  9th  section  :— 

J)  9.  The  testimony  in  equity  cases  shall  be  taken  before 

the  judge  who  shall  hear  and  decide  the  casein  the  same 

meras  testimony  is  taken  upon  the  trial  oi'anissue  at 

Mr.  RICHMOND  was  perfectly  aware  that 
section  was  in  this  report. 

Mr.  LUUlvl is  hoped  the  gentleman  would  not 
impute  to  i  he  committee  what  they  were  decidedly 
and  unanimously  opposed  to. 

Mr.  RICHMOND  had  no  desire  to  cast  imputa- 
tions  upon  the  committee.  He  meant  only  to  be 
understood  as  saying  that  authority  was  given  in 
this  repon  to  create  such  officers,  although  he  be- 
lieved (Irom  the  explanations  ot  gentlemen)  thai 
the  committee  did  not  intend  io  have  any  such 
officers. 

Mr.  PATTERSON  :  Where  will  you  find  the 
authority  ? 


To  the   gentleman  from 


Mr.  RICHMOND:  In  i  his  third  S.TI  ion 
ant  authority  is  given  for  the  Legislature  to  pro- 
vide as  they  please,  for  taking  testimony;  foi  the 
latter  clause  of  the  section  says—  in  such  manner 
as  shall  be  provided  by  law.  And  all  know  that 
the  Legislature  is  the  law  making  power.  Mr. 
R.  would  give  an  instance  which  he  thought  might 
illustrate  somewhat  the  course  of  proceeding  in 

the  court  of  chancery.  This  happened  wuhin  a 
few  miles  ot  him,  in  an  adjoining  town  to  the  one 
in  which  he  resided,  in  Monroe  county,  which  is 
in  part  represented  by  ;he  gentleman  over  the  way 
(Mr.  STRONG  )  A  man  sold  a$n;all  farm  to  anoth- 
er, in  winter,  when  the  snow  was  on  the  ground, 
representing  that  thesoil  wasgood  for  the  growing 
of  winter  wheat.  He  was  to  leceive  a  good  price 
for  it,  and  about  $1100  was  paid  down.  When 
i  he  snow  melted  oti',  and  the  buver  could  see  the 
soil,  he  found  that  he  had  been  grossly  cheated. — 
He  went  to  the  man  selling  him  the  farm,  and  told 
him  he  must  make  him  recompense  for  the  decep- 
tion he  had  practiced  on  him.  The  seller  would 
do  nothing  about  it ;  would  listen  to  no  teims,  and 

he  buyer  was  obliged  to  go  into  chancery  for  ie- 
dress.  The  suit  was  not  yet  decided.  The  costs 
had  already  run  up  to  $4,000,  or  double  the  amount 
of  the  value  of  the  (arm.  The  fees  of  one  exam- 
iner  for  taking  testimony  were  over  $SOU  j  and 
Mr.  R.  ventured  to  say  that  any  justice  ot  the 
peace  in  that  town  could  have  taken  the  same  tes- 
timony, in  a  better  form,  for  12  or  14  shillings. 
We  laymen  know;very  well  how  this  is  done.— 
Testimony  is  taken  to  the  chancellor  by  the  basket 
full,  and  he  never  reads  it.  nor  can  he.  These 
examiners  are  paid  by  the  folio,  or  number  of 
words,  for  taking  testimony;  and  in  many  instan- 
ces they  take  down  all  the  rigmarole  and  irrele- 
vant matter  that  can  well  be  obtained  from  a  w  it 
less,  as  by  doing  so  they  are  enabled  to  realize 
enormous  bills  of  costs.  Now,  Mr.  Chairman,  I 
am  opposed  to  these  officers  perambulating  the 
county,  taking  testimony  by  means  of  which  they 
'ill  their  own  pockets,  at  the  expense  of  the  par- 
ies  in  the  suit.  He  was  in  favor  of  taking  testi- 
nony  in  open  court,  before  the  judge  in  all  cases 
where  it  could  be  done,  and  he  wanted  a  union  of 
aw  and  equity  powers,  that  they  might  go  hand 
n  hand  together.  In  conclusion,  he  would  say 
hat  he  would  give  no  vote  that  could  by  possibility 
>erpetuate  the  present  odious  system,  or  that  would 
How  the  Legislature  to  create  as  bad  a  one  in  its 
lead. 

Mr.  RHOADES  said  he  was  unavoidably  absent 
rom  his  seat  during  the  two  first  days  of  the  dis- 
ussion  of  the  report  of  the  committee  on  the  ju- 
iciary.  With  the  spirit  and  ability  with  which 
ae  general  subject  had  been  discussed  for  the 
ast  four  days,  he  had  been  highly  delighted  as 

eil  as  instructed.  To  this  3d  section,  and  to  the 
ubstitute  offered  by  the  gentleman  from  Kings, 
e  had  paid  little  or  no  attention  until  it  was 
ust  now  alluded  to  by  his  colleague  from  Onon- 
aga  (Mr.  TAYLOR);  the  merits  of  either  that  see- 
on  or  the  substitute  had  hardly  been  mentioned 
n  debate — he  had  yet  the  impression  from  what 
ad  been  stated  by  the  Chair,  that  the  substitute 
rent  to  change  the  entire  character  of  the  court 
om  that  which  was  prepared  by  the  committee, 
nd  that  hence  the  whole  merits'of  the  report  was 

order  for  discussion,  in  what  had  been  stated 


654 


by  the  chair,  as  he  understood  it,  the  committee 
had  seemed  to  acquiesce.  But  in  looking  at  the 
3d  section,  and  comparing  it  with  the  substitute, 
he  was  at  loss  to  perceive  any  difference  in  them, 
so  far  as  to  change  the  character  of  the  Supreme 
Court.  The  third  section  reads  as  follows : — 
"  There  shall  be  a  Supreme  Court  having 
the  same  jurisdiction  in  law  and  equity  as 
the  supreme  court  and  the  court  of  chancery 
now  have — subject  to  regulation  by  law."  The 
substitute  reads  thus—"  The  judicial  power  of 
the  state  shall  be  be  vested  in  one  supreme  court, 
subject  to  the  app^late  jurisdiction  of  the  court 
of  appeals,  and  in  such  subordinate  courts  as  shall 
be  authorized  by  this  Constitution."  Now  if  he 
had  understood  the  argument  of  gentlemen  who 
had  spoken  of  these  two  propositions  they  regard- 
ed them  so  distinct  and  different  as  to  change  the 
character  and  powers  of  the  court.  To  him  there 
appeared  no  such  difference.  The  committee 
propose  a  supreme  court  having  all  the  jurisdic- 
tion which  is  vested  in  the  present  supreme  court 
and  the  court  of  chancery.  Those  two  courts  as 
they  now  exist,  he  had  supposed  embraced  sub- 
stantially, all  the  judicial  power  of  the  state  sub- 
ject to  an  appeal  to  the  court  for  the  correction 
of  errors.  The  committee  propose  to  vest  all  the 
powers  of  the  two  courts  in  one,  subject  to  ap- 
peal as  provided  for  in  another  section.  The 
substitute  proposes  to  grant  "  the  judicial  powrer 
of  the  stale"  to  the  supreme  court  subject  to  the 
court  of  appeals,  "  and  in  such  subordinate 
courts,"  &c.  He  had  never  supposed  the  court 
of  court  of  chancery  to  be  a  court  subordinate  to 
the  supreme  court.  Now  if  a  vote  as  between 
these  two  propositions  was  to  affect  the  character 
of  the  court  we  were  about  to  establish  or  to  de- 
termine the  question  whether  we  would  have  law 
and  equity  administered  by  the  same  court.  He 
did  not  so  comprehend  the  subject  as  to  vote  un- 
derstandingly  in  the  matter.  It  may  appear  to 
many  gentlemen  a  senseless  inquiry,  but  he  hoped 
to  hear  some  explanation  of  the  substitute  and  the 
reasons  for  adopting  it  before  a  vote  was  taken. 

Mr.  LOOMIS  said  that  he  had  offered  the  sub- 
stitute for  the  section  in  order  to  have  the  ques- 
tion which  the  gentleman  from  New- York  (Mr. 
O'CONOR)  desired  to  raise  under  his  resolution, 
raised  directly  on  the  section  itself.  That  gen- 
tleman did  not  like  the  phraseology  of  the  origi- 
nal section,  under  the  belief  that  it  might  convey 
to  the  legislature  an  intimation  that  the  intention 
was  that  these  jurisdictions,  though  proposed  to 
be  united  in  one  court,  were  to  be  kept  distinct 
in  practice.  Mr.  L.  did  not  suppose  the  original 
section  liable  to  this  construction ;  and  he  only 
intended  to  frame  the  section  so  as  to  meet  the 
views  of  the  gentleman  from  New- York.  If  that 
gentleman  did  not  see  fit  to  sustain  it,  Mr.  L. 
should  not,  as,  as  he  regarded  it  as  immaterial. — 
In  order  to  prevent  misconstruction,  he  had  pro- 
posed to  adopt  the  language  of  the  resolution  in- 
stead of  the  section.  But  he  did  not  consider 
that  the  section  conveys  any  instruction  to  the  le- 
gislature that  these  two  systems  were  to  be  kept 
separate  in  practice 

Mr.  RHOADES  said  that  when  gentlemen  at- 
tempt to  take  up  others  for  wandering  from  the 
subject,  they  ought  to  be  careful  and  not  do  so 


themselves.     He  wished  to  enquire  of  the  Chair 
as  to  the  question  before  them. 

The  CHAIR  said  that  it  had  decided  that  the 
whole  merits  of  the  question  were  under  conside- 
ration. 

Mr.  SWACKHAMER  begged  to  correct  the 
gentleman.  He  did  not  understand  with  the  Chair 
that  the  merits  of  the  whole  question  was  under 
consideration  on  the  amendment  of  the  gentle- 
man from  Otsego,  (Mr.  CHATFIEL.D)  but  on  the 
proposition  to  strike  out  the  third  section  of  the 
report  of  the  committee,  and  on  his  substitute  for 
the  section. 

Mr.  RHOADES  replied  that  he  had  looked  at 
the  general  acquiescence  conceded  by  the  House, 
as  a  proof  that  the  whole  subject  was  under  con- 
sideration. 

Mr.  SWACKHAMER  went  into  some  explana- 
tions. He  originally  proposed  a  substitute  for 
this  third  section;  to  the  effect  that  the  judicial 
power  of  the  State  should  be  vested  m  one  su- 
preme court  and  in  such  subordinate  courts  as 
should  be  established  by  this  constitution.  At 
the  request  of  the  gentleman  from  Herkimer,  he 
accepted  that  gentleman's  version,  though  he 
confessed  he  did  not  understand  it  to  change  the 
principle  involved  in  his  section.  It  merely  pro- 
vided for  a  contingency — anticipating  the  adop- 
tion of  the  second  section  of  the  committee's  re- 
port, which  provides  for  a  court  of  appeals.  Cer- 
tainly, nothing  was  farther  from  his  intentions 
than  to  sanction  the  organization  of  the  law  and 
equity  jurisdictions  in  separate  courts.  The  gen- 
tleman from  Chautauque,  (Mr.  PATTERSON,)  was 
entirely  mistaken  in  asserting  that  those  who  vote 
to  strike  out  the  third  section  and  insert  his  sub- 
stitute, voted  to  continue  separate  jurisdiction  in 
the  courts.  The  second  section  united  the  sys- 
tems, but  left  all  the  power  and  jurisdictions 
usurped  and  assumed  by  the  judiciary  during  the 
last  thousand  years.  It  also  left  it  optional  with 
the  legislature  to  institute  courts  without  num- 
ber. His  proposition  placed  no  dominion  in  the 
legislature,  except  to  carry  out  the  constitutional 
plan,  and  in  connection  with  another  section, 
which  he  would  subsequently  offer,  if  the  first 
was  adopted,  would  limit  the  jurisdiction  of  courts 
to  powers  conferred  by  the  constitution.  The  le- 
gal profession  properly  understood  the  difference, 
and  he  hoped  it  would  be  appreciated  by  others. 

Mr.  BASCOM  said  he  rose  rather  to  express 
the  hope  that  we  should  not  be  committed  by  any 
vote  upon  this  question  to-day,  than  to  make  an 
argument  upon  the  section  itself,  but  he  would 
say  a  word  to  relieve  the  difficulty  of  the  gentle- 
man of  Onondaga,  (Mr.  RHOADES)  and  others, 
who  may  labor  under  the  same  difficulty,  who 
seem  to  be  unable  to  see  the  difference  between 
the  amendment  •  and  the  section  itself.  The 
amendment  proposed  to  vest  the  judicial  powers 
in  certain  tribunals  to  be  provided  by  the  Con- 
stitution. The  judicial  power  was  one  thing,  the 
jurisdiction  of  courts  another.  If  the  Constitu- 
tion merely  vests  the  judicial  power  in  the  va- 
rious courts  created,  or  to  be  created,  the  Legis- 
lature may  distribute  the  jurisdiction  among  the 
various  tribunals  at  its  discretion,  or  abolish  it ; 
but  if  certain  jurisdictions  are  given  to  certain 
courts  by  the  Constitution  itself,  it  may  well  be 
doubted  whether  the  Legislature  will  have  pow- 


655 


er  to  take  it  away  and  distribute  it  among  the  in- 
ferior tribunals, "that  another  section  of  the  re- 
port provides  for  the  creation  of.  To  illustrate, 
the  court  of  chancery  has  jurisdiction  on  subjects 
of  dower,  the  partition  of  lands,  has  jurisdiction 
to  assist  rail  roads  to  obtain  rights  of  way,  over 
banks  and  other  corporations,  &c.  Now  it  was 
pretty  clear  that  the  Legislature  would  not  have 
the  power  to  take  away  these  and  such  like  ju- 
risdictions, and  confer  them  upon  some  other  tri- 
bunals or  other  branches  of  the  government — at 
any  rate  so  as  to  deprive  the  courts  of  an  appel- 
late power.  The  section  is  like  itself,  it  is 
unlike  any  that  his  research  had  enabled  him 
to  find  in  other  Constitutions.  It  has  not  here- 
tofore been  deemed  proper  in  this  State  to  con- 
firm the  jurisdictions  of  the  courts  by  the  Con- 
stitution; the  Constitution  has  established  the 
courts  and  the  Legislature  have  been  left  to 
define  and  distribute  their  several  jurisdictions. 
And  if  no  certain  and  obvious  necessity  could 
be  shown  for  this  novel  section,  he  trusted  it 
would  not  be  adopted.  He  hoped  the  question 
would  not  now  be  taken ;  the  gentleman  from  N. 
York  (Mr.  O'CoNOR)  owed  it  to  the  committee 
and  himself  to  defend  his  proposition  made  the 
other  day,  and  when  he  should  have  the  opportu- 
nity, he  had  the  ability  to  do  it.  He  (Mr.  B.) 
had  understood  him  somewhat  differently  from 
what  gentlemen  who  had  replied  to  him,  and  had 
somewhat  ingeniously  placed  him  in  a  position 
he  had  not  chosen  for  himself.  He  hoped  that 
gentleman  would  be  heard  before  any  question 
would  be  takSn.  He  had  the  satisfaction  to  say 
to  the  committee  that  two  members  of  the  judi- 
ciary comrr.ittee  had  agreed,  unanimously  agreed 
both  in  the  principle  and  the  detail  of  an  import- 
ant new  section,  which  it  was  their  purpose  to 
submit  to  the  Convention,  that  it  might  be  print- 
ed if  it  should  be  thought  worth  it.  Upon  being 
further  interrogated  as  to  the  nature  of  the  sec- 
tion, Mr.  B.  said  it  provided  for  courts  of  concili- 
ation, and  he  read  the  section  as  follows : 

There  may  be  established  in  the  city  of  New-York  one 
or  more  tribunals  ol  arbitration  or  conciliation,  each  tc 
be  composed  of  three  arbitrators  or  conciliators,  one  o 
whom  shall  be  clerk  thereof.  They  shall  be  paid  a  rea 
sonahle  compensation  to  be  nxed  by  law,  and  all  lees  re 
crived  by  them  shall  be  paid  into  the  public  treasury.  Th 
legislature  may  provide  for  similar  tribunals  in  othe 
localities  of  the  State  if  it  shall  be  deemed  expedit  nt,  am 
may  attbrd  parties  inducements  to  submit  their  difference 
to  the  arbitrament  or  conciliation  of  such  tribunals  by  re 
gulation  of  costs  in  other  courts. 

Mr.  CHATFIELDdid  not  propose  to  enter  int 
the  discussion  of  this  whole  subject  matter,  bu 
he  felt  very  much  disinclined  to  allow  the  ques 
tion  to  be  taken  on  the  section  without  calling  at 
tention  to  the  phraseology  employed  by  the  com 
mittee,  and  by  the  gentleman  from  Kings  in  hi 
substitute.  In  the  formation  of  a  Constitution 
too  much  caution  could  not  be  exercised  in  th 
selection  of  the  proper  words  to  express  the  view 
and  object  of  its  provisions  in  the  clearest  and  mos 
explicit  manner.  He  should  differ  from  the  com 
mittee  as  to  the  propriety  of  the  language  em 
ployed  in  section  third,  with  great  deference  how 
ever,  as  he  was  aware  that  the  committee  was 
composed  of  gentlemen  of  the  highest  legal  at 
tainments.  He  agreed  with  them  in  the  grea 
purpose — the  union  of  the  two  courts— to  be  es 
tablished,  yet  he  was  in  doubt  whether  the  Ian 


uage  they  had  employed  would  attain  that  end. 
[e  would  not  give  to  the  court  about  to  be  created 
nly  the  same  identical  jurisdiction  now  possessed 
y  the  Supreme  Court  and  the  Court  of  Chancery. 
le  would  not  make  an  inflexible  rule  that  new 
ubject  requiring  the  investigation  of  the  courts 
hould  not  be  allowed  to  be  considered  in  this 
ew  court.  It  seemed  to  him  that  the  language 
vould  have  the  effect  of  making  such  a  restriction, 
le  suggested  that  the  section  should  be  amended 
o  as  to  read — "  There  shall  be  a  Supreme  Court 
laving  general  jurisdiction  in  law  and  equity." 

Mr.  TALLMADGE  was  i*  doubt  as  to  the 
iracticability  of  this  system,  because  there  had 
ieen  no  explanation  as  to  the  carrying  into  op- 
iration  of  the  subject  matter  of  the  report.  If 
his  could  be  given  he  was  certain  the  house 
would  soon  be  ready  to  vote.  He  should  like  al- 
o,  to  have  some  information  as  to  the  expense  of 
he  system. 

Mr.  JORDAN  said  he  should  confine  himself 
o  the  two  higher  courts,  and  show  how  the  sys- 
em  could  be  carried  out.  As  to  the  13th  section, 
providing  for  the  creation  of  the  subordinate 
courts,  he  had  already  said  that  that  required  a- 
mendment — and  so  far  as  the  general  operation 
of  the  system  was  concerned  that  might  be  laid 
out  of  view. 

Mr.  TALLMADGE  said  his  suggestion  was  an- 
swered in  part— but  before  assenting  to  this  be- 
rining  of  36  judges  with  salaries  in  the  aggre- 
gate amounting  to  $100,000,  he  was  anxious  to 
enow  additions  there  were  to  be  in  the  shape  of 
subordinate  courts,  especially  of  criminal  juris- 
diction— in  order  that  he  might  contrast  it  with 
;he  plan  of  Mr.  MARVIN  which  provided  special- 
ly for  subordinate  courts  and  for  lessening  their 
number.  But  on  the  other  hand,  Mr.  T.  express- 
ed himself  in  favor  of  a  court  of  appeals  formin°- 
no  part  of  a  supreme  court.  He  again,  however, 
expressed  the  hope  that  we  might  have  the  infor- 
mation called  for  in  the  beginning  of  the  next 
week. 

Mr.  CHATFIELD  had  two  or  three  times  heard 
an  intimation  thrown  out  which  might  improp- 
erly govern  members,  and  which  he-felt  very  de- 
sirous should  be  contradicted  on  the  spot.  It  was 
that  the  judges  provided  for  in  the  higher  courts, 
were  expected  to  receive  $3000  each  as  a  salary. 
He  knew  not  how  that  idea  had  got  into  any  mind 
because  he  did  not  believe  that  if  the  subject  was 
left  to  the  legislature,  as  it  must  be  by  the  lan- 
guage of  the  report,  it  would  be  fixed  at  much 
more  than  half  that  amount.  If  it  was  left  to  this 
Convention  to  be  settled,  he  was  satisfied  that  no 
one  here  would  purpose  a  salary  exceeding  $2000, 
and  he  believed  that  $1500  would  get  more  votes 
than  $201)0.  Tile  chairman  had  only  assumed  that 
sum  as  a  basis  for  his  calculation  to  show  that  even 
with  that  high  rate,  the  system  would  be  cheaper 
than  the  one  we  now  have,atid  hedesired  gentlemen 
would  dismiss  such  considerations  from  their 
minds,  as  that  the  salaries  ot  these  officers  would 
be  fixed  at  any  (hint;  like  $3000.  There  had  never 
yet  in  this  State  a  judge  received  anything  like 
that  amount,  except  the  Chancellor.  When  Uj> 
before,  he  did  nut  know  that  he  had  rn;ide  a  dis- 
tinct proposition  to  amend,  but  he  would  make  it 
now.  The  gentleman  fiom  Columbia  (Mi.  JOR- 
DAN) in  considering  the  amendment  of  the  gen. 


656 


tleman  from  :  Kings,  he  thought  had  overlooked 
one  point  of  it  which  was  entitled  to  considera- 
tion. He,  Mr.  J.,  supposed  that  the  amendment 
accomplished  precisely  ihe  same  thing  that  the 
seciion  accomplished.  But  it  not  only  does  that 
but  a  great  deal  more.  It  viitually  destroys  sec- 
tion 13,  and  provides  tor  the  lodging  of  the  judi- 
cial power  in  our  Supreme  Couri,  and  in  such 
subordinate  courts  as  ihi*  Constitution  .may  pro- 
vide, thus  depriving  the  Legislature  of  any  power 
to  establish  subordinate  courts. 

Mr.  SWACKHAMERsaid  that  the  blow  was 
aimed  at  Section  1%,  which  he  looked  upon  as  the 
most  dangerous  feature  in  the  report. 

Mr.  CHATFIELD  said  there  could  be  no  doubt 
that  the  blow  was  aimed  at  that  section.  Mr.  C. 
wished  to  leave  this  section  in  relation  to  the  Su- 
preme Court  entuely  disembarrassed  from  any 
such  question.  It  had  no  connection  with  the 
other  tribunals.  The  tim*»  to  consider  the  subordi. 
nate  courts  was  when  the  13»h  section  was  reached, 
and  when.  that,  section  was  taken  up,  he  should 
have  something  to  say,  and  should  propose  to 
amend  it  or  strike  it  out  altogether.  He  wished 
now  to  get  rid  of  the  language  in  the  third  sec- 
tion vesting  in  the  new  court  "the  same  jurisdic- 
tion in  law  and  equity  as  trie  Supreme  Court  and 
the  Court  ot  Chancery  now  have,"  because  he 
de>ired  not  only  the  union  of  the  two  courts,  but 
another  great  principle  of  reform,  which  he 
should  discuss  on  a  proner  occasion.  As  the  sec- 
tion was  Iramed,  it  retains  not  only  the  jurisdic- 
tion which  the^e  courts  have,  but  might  lead  to 
the  adoption  of  the  practice  as  it  now  stands  in 
both  courts.  His  amendment  avoided  that  diffi- 
culty, as  it  effectually  united  the  two  jurisdictions 
leaving  the  piactice  open  to  reform  hereafter  eith- 
er bv  the  Legislature  or  the  courts  themselves. 

Mr.  SWACKHAMER  concurred  with  the  gen- 
tleman from  Otsego  in  respect  to  one  judiciary 
system, -and  he  was  happy  to  see  his  friend  from 
Columbia  (Mr.  JORDAN)  coming  round  to  their 
views  and  the  views  of  the  Convention.  He  was 
not  tenacious  of  his  amendment,  but  the  great  ob- 
ject he  had  in  view  was  to  reach  the  principle  in- 
volved in  the  13th  section,  which  gave  to  the  le- 
gislature the  power  to  establish  as  many  inferior 
courts  as  they  thought  proper.  His  substitute 
provided  that  the  jud'ical  power  should  be  vested 
in  one  supreme  court  and  such  inferior  courts  as 
might  be  organized  or  sanctioned  by  the  Consti- 
tution. Leaving  it  to  the  legislature  would  be 
leaving  the  whole  matter  at  loose  ends. 

Mr.  WORDEN  desired  to  enquire  of  the  gen- 
tleman from  Kings  how  he  supposed  the  13th  sec- 
tion varied  the  Constitution  from  what  it  stood  for 
the  last  twenty-five  years. 

Mr.  SWACKHAMER:  How  it  varies?  Why 
sir,  it  is  a  matter  of  entire  indifference  to  me  whe- 
ther it  does  or  not.  I  conceive  that  the  principle 
is  false  in  itself,  whether  sanctioned  by  usage  or 
not. 

Mr.  WORDEN  :  The  same  provision  has  been 
in  the  Constitution  for  the  last  twenty-five  years. 

Mr.  O'CONOR  :  These  same  words  were  never 
in  the  Constitution. 

Mr.  WORDEN  :     The  same  power. 

Mr!  CHATFIELD:  The  power  as  found  in 
the  present  Constitution  only  applied  to  courts  of 
equity. 


Mr.  SWACKHAMER :  I  know  that  the  pre- 
sent Constitution  contained  part  of  the  power 
proposed  to  be  given  to  the  legislature  by  this 
13th  section,  and  for  these  reasons  I  am  op- 
posed to  it,  as  a  most  miserable  judiciary  system 
had  grown  up  under  it. 

Mr.  NICOLL  said  that  on  reflection  he  prefer- 
red the  substitute  of  the  gentleman  from  Kings  as 
amended  by  the  gentleman  from  Herkimer,  to  the 
section  as  reported  by  the  committee,  or  even  as 
worded  by  the  gentleman  from  Otsego.  He 
believed  that  all  concurred  that  in  effecting 
this  great  reform,  in  amalgamating  these  two 
great  divisions  of  jurisprudence,  there  ought  to 
be  no  reasonable  doubt  as  to  the  construction  of 
the  constitution.  If  there  was,  it  might  also  lead 
to  doubt  whether  it  did  not  involve  the  necessity 
of  proceeding  hereafter  by  the  same  forms  which 
now  distinguished  the  two  tribunals.  This  was 
a  matter  which  should  not  be  left  in  doubt,  and 
he  thought  it  all  might  be  avoided  by  adopting 
this  amendment. 

Mr.  W.  TAYLOR  said,  as  the  gentleman  from 
Kings  had  now  defined  the  object  of  his  amend- 
ment, he  desired  to  see  it  voted  down,  and  that 
then  the  amendment  of  the  gentleman  from  Otse- 
go would  be  adopted.  This  would  bring  a  direct 
vote  upon  the  single  naked  question,  as  to  whe- 
ther we  should  vest  in  one  court  the  jurisdiction 
of  law  and  equity.  Upon  that  question  he  was 
desirous  to  give  his  vote.  Having  been  interro- 
gated upon  this  subject  of  judicial  retbrm,  when 
a  candidate  for  a  seat  here,  he  had  avowed  him- 
self generally  in  favor  of  such  a  reform  as  should 
cheapen,  simplify  and  expedite  the  administra- 
tion of  justice— and  particularly  in  favor  of  dis- 
pensing with  the  court  of  errors,  and  of  combin- 
ing law  and  equity  in  one  court.  He  believed 
that  the  general  belief  and  desire  was  that  this 
last  measure  might  be  adopted,  and  the  practice 
of  the  courts  very  much  simplified.  But  from  his 
inexperience,  he  had  found  himself  embarrassed, 
but  he  had  now  to  acknowledge  his  obligations 
to  gentlemen  of  the  legal  profession,  for  the 
light  they  had  thrown  upon  this  subject — for 
they  had  enabled  him  to  come  to  a  conclusion 
satisfactory  to  his  own  mind  on  this  important 
question.  He  aiiudtd  to  the  prejudices  mat  ex- 
ited in  the  public  mind  against  placing  men  of 
ihe  legal  profession  in  the  Legislature  and  in  this 
Convention  :  lest  pt-radventure  the>  might  beiound 
ariaved  against  the  reforms  which  the  people  de- 
manded. But  whatever  teeling  might  exist  out  of 
doors,  in  that  respect,  he  was  satisfied  that  no  such 
teeling  existed  here — and  for  one,  he  thought  it 
due  to  them  to  say  lhat  in  this  matter  ot  judicial 
leform,  they  had  taken  a  noble  and  proud  stand, 
and  with  great  ability  andzeal  h<id  come  up  to  the 
work  of  establishing  our  judicial  system  on  the 
best  possible  foundation.  He.  added  that  it  had 
been  owing  to  the  able  and  liberal  views  ot  this 
subject  taken  by  gentlemen  of  the  profession,  lhat 
he  had  come  to  Ihe  fixed  and  deep  conviction  that 
we  might  combine  the  jui  isdici  ions  of  law  and 
equity  in  the  same  court  —  and  thus  save  an  im- 
mense amount  of  tedious  and  expensive  litigation. 
Such  it  seerued  was  the  opinion  of  the  majority 
ot  the  judiciary  committee — after  a  long  and  pa- 
tient examination  and  review  of -the  whole  sub- 
ject. And  the  fad  that  some  of  ihe  committee 


657 


differed  Irom  the  report  of  the  majority,  and  ha 
presented  antagonist  plans  in  several  instances, 
gave  strength  i->,  rather  than  detracted  from  th 
weight  due  to  the  majority  report  in  itself" — inas 
much  as  it  was  relieved  from  all  suspicion  of  hav 
ins:  been  concocted  by  the  profession,  to  suit  per 
sonat  or  interested  views.  And  taking  it  for  gran 
ted  that  the  majority  of  the  committee  agreed  i 
opinion  that  as  there  wss  nodiffcrence  in  the  prin 
ciples  of  law  and  equity,  and  that  the  two  juris 
diction*  might  be  amalgamated  into  one  court,  h 
for  one,  was  ready  to  vote — as  ihis  was  a  result  t 
which  his  own  previous  reflections  had  led  him 
and  which  he  was  happy  to  find  was  the  result  o 
the  arduous  deliberations  and  labors  of  the  judi 
ciary  committee. 

Mr.  WORDEN  wished  to  say  that  he  under 
stood  the  13th  section  as  intending  to  confer  upon 
the  legislature  the  same  and  no  other  power  than 
it  now  possesses,  except  In  this — that  it  gave  them 
the  power  of  providing  for  the  carrying  of  appeal: 
or  writs  of  certiorari  directly  to  the  courts  of  ap 
peals  without  going  through  the  Supreme  Cour 
and  blocking  up  that  court — if  it  was  found  expe 
dient.  These  four  others  were  in  the  presen 
constitution,  and  he  had  heard  no  complaint  o 
them.  It  allowed,  he  urged,  the  legislature  to 
adapt  the  system  to  the  exigencies  of  Jhe  times 
and  this  power  he  desired  to  see  retained.  It  hac 
been  exercised  by  the  legislature  and  beneficially 
as  for  instance  in  the  establishment  of  the  Supe 
rior  Court  of  the  city  of  New-York.  Mr.  W.  re- 
ferred to  the  various  sections  of  the  present  Con- 
stitution, merely  implying  to  the  legislature  to 
what  is  provided,  in  this  13th  section.  Was  i 
wise  or  prudent,  he  asked,  to  put  the  whole  great 
interests  of  tne  state  in  regard  to  the  judiciary 
under  one  inflexible  rule  to  be  established  here 
Who  could  tell  what  changes  may  take  place  in 
the  State  within  the  nrat  twenty-five  years.  And 
unless  we  could  arrive  at  that  degree  of  moral 
certainty  in  viewing  the  future,  which  was  never 
yet  vouchsafed  to  human  intellect,  we  may  well 
pause  and  consider  whether  it  was  not  not  safe 
to  have  somewhere  a  principle  of  flexibility  and 
a  power  to  which  we  might  resort  for  the  purpose 
of  creating  those  tribunals  which  experience 
shall  show  are  absolutely  necessary  to  preserve 
our  rights  to  property  and  the  lives  of  our  citi- 
zens. Was  the  Convention  ready  to  assume  that 
this  thirty-three  judge  court  without  any  other 
tribunal  in  the  State,  and  without  any  provision 
for  the  creation  of  any  other  would  answer  the 
public  exigencies  for  the  next  quarter  of  a  centu- 
ry? But  admitting  that  it  would,  he  urged  that 
it  would  be  wiser  to  leave  those  who  came  after 
us  the  power  to  modify  and  adapt  the  system  so 
as  to  conform  to  their  wants.  Mr.  W.  urged  in 
conclusion  that  the  amendments  should  not  be 
adopted  without  great  consideration. 

Mr.  STETSON  expressed  the  opinion  that 
the  amendment  of  the  gentleman  from  Kings  was 
not  at  all  inconsistent  with  the  13th  section. 

Mr.  CHATFIELD  considered  the  argument  of 
Mr.  WORDEJV  as  an  extremely  specious  one,  and 
repelled  the  idea  that  the  third  section  prevent- 
ed the  creation  of  any  other  court,  and  conferred 
on  the  supreme  court  all  jurisdiction.  The  sec- 
tion provided  for  one  tribunal— section  two  for 
another,  and  other  sections  for  other  tribunals, 


and  section  thirteen  gave  a  general  power  for  the 
creation  of  others. 

Mr.  WORDEN  denied  that  there  was  any 
thing  specious  in  his  argument,  and  again  insist- 
ed that  the  amendment  pending  virtually  over- 
rode the  13th  section,  and  he  asked,  if  you  vest- 
ed in  a  supreme  court  general  jurisdiction  in  law 
and  equity,  which  embraced  all  controveries  be- 
tween man  andinan,  where  was  the  jurisdiction 
to  be  vested  in  any  inferior  tribunal  ? 

Mr.  CHATFIELD  remarked  that  our  supreme 
court  was  a  court  of  general  jurisdiction. 

Mr.  WORDEN  replied  that  that  was  so— but 
there  was  no  provision  in  the  Constitution  giving 
it  that  jurisdiction ;  it  was  established  by  law. — 
He  repeated  his  question,  if  you  created  a  court 
and  conferred  on  it  all  the  jurisdiction  known  in 
any  civilized  country,  where  was  the  jurisdiction 
to  be  conferred  on  any  other  court  ? 

Mr.  CHATFIELD  replied,  insisting  that  his 
amendment  proposing  to  confer  on  the  supreme 
court  general  jurisdiction  in  law  and  equity,  did 
not  necessarily  imply  that  the  supreme  "court 
alone  should  have  general  jurisdiction. 

Mr.  TILDEN  here  moved  that  the  committee 
rise_lost,  30  to  37. 

Mr.  TILDEN  said  that  there  were  many  gen- 
tlemen who  were  desirous  of  speaking  on  the 
subject,  and  the  Convention  was  desirous  to  hear 
what  they  had  to  say.  And  now  in  order  to  save 
time  and  to  give  gentlemen  an  opportunity  to  re- 
flect on  the  able  arguments,  which  had  been  de- 
livered here,  between  this  day  and  Monday  morn- 
ing, he  moved  that  the  committee  rise. 

This  was  lost— 30  to  37. 

Mr.  WORDEN  said  that  he  did  not  wish  to  be 
misunderstood  in  this  matter,  as  he  evidently  had 
been  yesterday.  Whatever  might  be  the  opinions 
of  other  gentlemen  he  was  satisfied  that  he  was 
right.  He  considered  that  this  question -was  one 
of  the  most  important  that  had  ever  engaged  the 
attention  of  intelligent  men.  He  would  not  mis- 
represent any  gentleman,  nor  did  he  wish  to  be 
misrepresented  himself.  He  would  pursue  the 
course  he  had  already  pointed  out,  although  he 
tood  alone.  Now  he  would  ask,  "  what  is  a  ju- 
diciary ?"  For  what  purpose  is  it  created  ?  What 
s  it  to  do  when  created  ?  Have  gentlemen  con- 
sidered that  this  judiciary  system  is  the  all-con- 
rolling,  conservative  and  life-preserving  power 

under 

Mr.  STEPHENS  said  that  as  the  gentleman 
tfas  evidently  indisposed,  and  as  it  was  desirable 
hat  he  should  address  the  Convention  at  length, 
le  would  move  that  the  committee  do  now  rise, 
caving  the  gentleman  in  the  possession  of  the 
loor  for  Monday. 

This  was  agreed  to,  and  the  committee  rose. 
Mr.  BASCOM  then  rose  and  said  that  quite 
arly  in  the  session  the  gentleman  from  Kings 
Mr.  SWACKHAMER)  introduced  a  resolution  in- 
tructing  an  inquiry  into  the  expediency  of  pro- 
iding  for  the  establishment  of  conciliation  courts. 
U  a  subsequent  period  he  (Mr.  B.)  introduced  a 
imilar  resolution  as  to  the  propriety  and  expedi- 
ncy  of  converting  justices'  courts  into  courts  of 
onciliation.  After  this  his  friend  from  New- 
fork  (Mr.  STEPHENS)  introduced  his  resolution 
or  a  court  of  arbitration  for  that  city.  All  these 
esolutions  were  referred  to  the  judiciary  com- 

57 


658 


mittee,  where  they  found  but  little  favor  excep 
from  the  gentleman  from  New- York  and  himself 
Quite  recently,   however,  the  gentleman  from 
Oneida  had  introduced  a  mandatory   propositior 
for  their  establishment  throughout  the  State,  am 
much  to  his  gratification  had  he  learned  that  no 
only  he,  but  also  his  friend   from  Ontario  (Mr 
WORDEN)  were  advocates  of  the  propriety  of  pro- 
viding for  some  kind  of  conciliatory  forum.     He 
had  too  much  doubt  of  the  expediency  or  success 
of  any  attempt  to  introduce   the  system  through- 
out the  State,  until  it  should   have  been  provec 
practicable   in   some  of  the  localities  where  it 
would  seem  to  be  most  required,  to  urge  his  ori- 
ginal proposition,  and  the  idea  of  his  friend  from 
New-York,  which  had  at  first  struck  him  as  pe- 
culiarly happy,  was  the  foundation  of  the  propo- 
sition which  his  friend  (Mr.  STEPHENS)  and  him- 
self now  asked  leave  to  submit  in  the  form  of  a 
separate  section.     All  civilized  governments,  in- 
cluding our  own,  provide  at  great  expense  of  time 
and  money,  tribunals  for  establishing  and  protect- 
ing the  rights,  and  passing  judgment  upon  the 
controversies  of  the  individual   members  of  the 
community,  by  which  the  litigious  propensities 
of  mankind  are  necessarily  stimulated  and  in- 
dulged.    And  some  governments   had  recently 
provided   institutions  to  curb  and  hold  in  check 
the  passion  for  litigation,   that  the  existence  of 
judicial  tribunals   could  not  but  excite,  and  we 
were  bound,  he  thought,  to  profit  by  their  expe- 
rience.    In  a  state  of  natural  society  individual 
controversies    were     adjusted,     and    individual 
wrongs  redressed,  by  the  application  of  physical 
power,  and  the  first  step  in  the  progress  of  civili- 
zation or  of  government,  was   to  provide  some 
juster  or   milder   mode  of  accomplishing   these 
ends. 

He  had  read  long  ago  a  story  in  the  Sanscrit  lan- 
guage, he  begged  pardon,  he  did  not  read  the  San. 
serif,  but  he  read  the  iranslation  from  that  lan- 
guage of  a  story  that  he  had  net  forgotten.  "A 
traveller  across  the  burning  sands  of  India,  dis- 
covered two  men  in  a  most  violent  trial  of  physi- 
cal strength,  he  enquired  the  cause  of  such  strife, 
and  was  pointed  to  a  golden  goblet  and  a  pair  of 
slippers  th^t  lay  upon  the  sand,  the  one  possess- 
ing the  power  of  turning  any  liquid  into  the  most 
delicious  nectar,  and  the  other  enabling  the  wear- 
er to  walk  the  air  at  his  pleasure,  and  for  this 
rich  prize  they  were  contending.  The  travellei 
informed  them  that  in  his  country  (probably  some 
civilized  one)  that  they  had  a  belter  and  milder 
mode  of  settling  such  disputes,  and  entreated 
them  to  adopt,  it  and  save  each  oi  her  further  harm. 
He  proposed  that  they  should  run  a  race,  and  that 
the  one  who  first  arrived  at  yonder  palm  be  en- 
titled to  the  prize.  The  proposal  was  accepted 
and  the  race  was  run,  but  when  the  victor  turned 
to  gloat  his  eyes  upon  ihe  rich  trophy  of  his  vic- 
tory, behold, 'Mr.  Traveller  had  the  golden  goblel 
under  his  arm  and  by  the  aid  of  the  enchanted 
slippers  was  pei forming  his  gyrations  in  the  air 
over  their  heads  and  beyond  their  reach." 

Mr.  li.  said  he  had  forgotten  much  of  the  read- 
ing of  his  youth,  but  he  had  seen  too  many  legal 
race*,  and" too  many  trophies  ot  victory  borne  oil 
by  the  mere  advisers  of  the  contest,  to  be  ever 
able  to  forget  the  story  from  the  Sanscrit. 

In  1755,  conciliation  courts  were  established  inf 


the  Danish  West  India  Islands,  but  the  first  at- 
tempt to  make  them  useful  wns  a  failure,  but 
King  Christian  the  7th,  by  an  ordinance  promul- 
gated in  1798,  re-established  them  upon  "princi- 
ples that  had  succeeded  in  the  home  portion  of 
the  kingdom,  since  which  time  they  had  exerted 
a  most  salutary  influence.  The  principles  upon 
which  they  were  established  were  in  consonance 
with  the  great  doctrine  of  Christianity,  Ihat  be- 
fore we  should  turn  over  our  offending  brother  to 
the  judge,  we  should  exhaust  every  reasonable  ef- 
fort for  reconciliation. 

By  the  Danish  system  local  commissioners  are 
appointed,  who,  without  reward  other  than  a  title 
of  rank  after  eight  years  of  service,  are  to  cause 
contending  parties  in  certain  classes  of  causes  to 
come  before  them,  in  private  and  without  counsel 
or  a  lawyer,  and  submit  to  the  influence  of  the 
conciliators.  If  their  efforts  are  unsuccessful 
they  merely  give  a  certificate  that  they  have  ex- 
hausted their  influence  and  the  parties  are  at 
liberty  to  litigate  in  the  King's  courts,  and  the 
party  defeated  is  adjudged  to  pay  the  costs.  The 
only  compulsory  feature  of  the  system  is,  that  a 
party  shall  not  bring  an  action  in  the  King's  court, 
without  having  first  tried  the  effect  of  the  recon- 
ciling commission  ;  and  a  suitor  who  declines 
to  appear  before  the  concilators  may  be  sued  in 
the  courts  and  compelled  to  pay  costs  if  the  action 
is  sustained.  He  was  indebted  to  a  valued  friend 
who  had  spent  considerable  time  in  the  Danish 
Islands  for  considerable  information  as  to  the  op- 
eration of  the  system  there,  and  also  for  a  trans- 
"ation  of  the  Royal  ordinance  establishing  these 
courts,  which  wras  at  the  service  of  any  gentle- 
man who  desired  more  information  as  to  the  de- 
tails of  the  system. 

The  high  opinion  this  friend  had  formed  of 
;hese  courts,  had  induced  him  to  urge  the  trial 
icre,  and  he  (Mr.  B.)  v\as^juite  willing  to  repre- 
sent his  wishes  in  this  body.  He  had  the  opin- 
on  also  of  several  other  gentlemen  who  had  resi- 
ded in  these  Islands,  all  concurring  that  these 
courts  were  eminently  useful  there. 

He  felt  no  certain  confidence  that  any  general 

system  like  the  one  he  had   described  would    at 

'irst  work  well  here ;  to  work   well   and   justify 

he  expense  there  must  be  business  for  it  to  do. — 

n  some  parts  of  the  State  there  might  be   little 

necessity  for  it,  and  its  novel  features  would  be 

met  with  the  prejudices  that  all  new  things  have 

o  meet.     But  the  suggestion  of  his  friend   from 

NTew- York  for  the  establishment  of  an  arbitration 

ourt  in  that  city  had  in   his  mind,   cleared  the 

ubject  of  all  difficulty.     He  had  turned  it  over  in 

lis  mind  since  the  resolution  of  that  gentleman 

was  introduced,  and  he  could  see  clearly  that  it 

might  be  made  to  work  great  good,   and  he   felt 

under  great  obligation   to   the   originator  of  the 

dea.     He  liked  it  every  way,  and  for  the  attach- 

nent  he  sincerely  entertained  to  it  he  felt  that  he 

vas  entitled  to  as  much  merit  at  least,  as  if  it  had 

ieen,his  own.     It  is  easy  to  love  our   own  plans 

nd  projects,  but  not  always  so  easy  to  appreciate 

nd  admire  those  of  others. 

In  the  ureut  exilian  rc'ui  emporium  of  the  State 
nd  the  Union,  with  its  thousands  of  questions  of 
ifference  constantly  arising,  not  only  among  its 
wn  citizens  but  among  those  who  congregate  for 
usiness  purposes  at  that  great  mart  of  commerce, 


659 


i  necessity  I'or  a  tribunal  where  diller- 
a  could  be  more  promptly  and  equitably  adju- 
dicated upon,  than  was  possible  by  the  existing 
•courts.  The  questions  for  litigation  arising  in  that 
city  had  been  the  great  cause  of  our  courts  being 
blocked  up  to  the  hindrance  and  delay  of  justice 
in  all  parts  or  the  Slate.  This  justified  him  in 
part  for  the  anxiety  he  felt  for  the  trial  of  the  ex- 
{"•miK'nt,  and  if  successful  there,  its  blessings 
would  soon  be  extended  all  over  the  State,  Some 
s  had  now  their  tribunals  foi  settling  disputes. 
The  brokers  had  their  tribunal  of  arbitraments,  so 
had  the  merchants,  and  the  Superior  Court  of  that 
city  had  yielded  to  the  necessity  of  a  sort  of  stand- 
ing board  of  referees,  to  which  the  causes  proper 
for  reference  from  that  court  were  referred.  But 
still  there  was  an  immense  number  of  questions 
ansinir  between  employers  and  contractors,  arti- 
zans  and  merchants,  owners  and  builders,  for 
•which  no  provision  was  made  j  questions  arising 
loo  between  city  and  country  dealers  of  every  de- 
scription, could  not  be  settled  by  the  slow  pro- 
ceedings of  the  courts  but  at  great  inconvenience 
U<  one  ot  both  parties.  He  was  not  in  the  habit 
of  proposing  or  advocating  important  changes  un- 
til he  had  well  considered  them,  but  long  reflec- 
tion upon  the  general  subject  of  conciliation,  and 
some  two  months  of  consideration  of  the  particu- 
lar suggestion  of  his  friend  from  New  York,  had 
enlisted  his  leelings,  and  made  him  regard  this  as 
a  proposition  from  which  more  good  might  flow, 
than  from  any  other  yet  entertained  in  this  body. 

He  thanked  the  Convention  tor  the  unanimous 
consent  that  had  been  given  to  present  this  subject 
out  of  its  proper  order,  and  to  the  attention  that 
had  been  given  to  the  explanation  which,  owing 
to  the  manner  in  which  this  subject  had  before 
been  treated  in  certain  quarters,  he  had  deemed  it 
necessary  to  make,  and  he  gave  notice  to  gentle- 
men who  had  met  sujph  like  questions  with  ridi- 
cule, that  the  authors  of  this  section  were  in  ear- 
liest in  its  presentation  and  intended  to  secure  its 
adaption. 

Mr.  BASCOM  then  presented  the  following 
resolution: — 

There  may  be  established  in  the  city  of  New  York  one 
or  more  tribunals  of  arbitration  or  conciliation,  each  to  be 
composed  ot  three  arbitrators  or  conciliators,  one  of  whom 
*hall  be  elected  clerk  thereof.  They  shall  be  paid  a  rea- 
sonable compensation  to  be  fixed  by  law,  and  all  fees  re- 
ceived r>y  them  shall  be  paid  into  the  public  treasury.— 
The  legislature  may  provide  lor  similar  tribunals  in  other 
localities  of  the  state  if  it  shall  be  deemed  expedient,  and 
may  afford  parties  inducements  to  submit  their  differences 
to  the  arbitrament  or  conciliation  of  such  tribunals,  by 
regulation  of  costs  in  other  courts. 

Mr.  CHATFIELD  moved  to  refer  this  resolu- 
tion to  the  committee  on  the  judiciary.  It  might 
be  a  question  with  some  whether  two  individuals 
a  constitutional  right  thus  to  submit  their 
difficulties  to  arbitration  in  the  way  proposed. 
And  if  they  had,  there  is  such  a  resource  in  exis- 
tence now.  In  fact,  the  community  has  now  the 
power — the  full  constitutional  pow^r — to  do  so 
now.  These  courts  were  now  at  every,  man's 
door,  and  wrere  daily  resorted  to.  But  he  hac 
yet  to  learn  that  any  live  Yankee  could  be  driven 
by  any  law  to  go  to  these  courts  to  settle  their 
difficulties,  when  he  considered  that  he  was  fully 
competent  to  judge  of  his  own  case,  and  his  own 
rights. 

Mr.  STEPHENS  said  the  spirit  of  the  remarks 


of  the  gentleman  from  Otsego  (Mr.  CHATFIELD,) 
appeared  to  be  in  the  spirit  of  some  of  the  reso- 
utions  introduced  at  an  early  period  of  the  sit- 
ings of  the  Convention.  The  gentleman  from 
Seneca  (Mr.  BASCOM)  and  himself  had  some  time 
since  agreed  upon  a  resolution  similar  to  that 
vhich  had  been  introduced  to-day,  but  the  pro- 
ect  at  the  time  they  proposed  it  had  met  with  no 
'avor  either  in  the  judiciary  committee  or  else- 
where ;  and  they  therefore  came  to  the  conclu- 
sion that  it  was  hardly  worth  while  to  introduce 
he  subject  in  the  Convention.  But  a  few  days 
since,  to  their  surprise,  they  saw  a  proposition  in- 
;roduced  here  making  it  mandatory  that  the  very 
thing  originally  contemplated  by  them,  should  be 
done  by  the  Convention — should  be  embodied  in 
the  Constitution.  And  this  proposition  had  been 
advocated  with  much  learning  and  much  zeal  ; 
ind  the  mover  of  it  went  much  farther  than  either 
aimself  or  Mr.  BASCOM.  We  do  not  compel  suit- 
ors to  go  before  any  Courts  whatever.  And  if  he 
(Mr.  S.)  had  the  enacting  of  a  clause  in  relation 
to  this  matter,  he  xvould  not  make  it  obligatory  to 
establish  these  courts  ;  nor  would  he  make  it  ob- 
igatory  on  suitors  to  go  in  that  court ;  but  he 
would  allow  the  legislature,  in  its  discretion,  to 
establish  such  courts,  with  such  powers  as  to 
hem  might  seem  proper.  He  would  have  them 
establish  one  of  these  courts  in  the  city  of  New- 
York,  by  way  of  an  experiment  to  test  the  work- 
ings of  such  a  system.  He  would  have  the  views 
of  various  gentleman  who  approved  of  this  plan 
collected  and  compared,  and  all  the  facts,  details, 
and  information  connected  with  the  working  ot 
this  system  of  Courts  of  Conciliation  in  other 
countries  brought  together,  and  to  be  used  to  the 
aest  advantage  in  establishing  and  trying  such  a 
system  in  this  state  He  could  let  the  legislature 
have  the  power  to  do  this,  if  in  their  wisdom  the}- 
thought  proper  to  do  so,  and  to  establish  such  a 
Court  of  Conciliation.  At  any  rate  it  was  a  harm- 
less experiment;  and  after  the  very  appropriate, 
feeling  and  beautiful  remarks  of  various  gentle- 
men on  this  subject,  he  felt  it  would  be  superflu- 
ous for  him  to  add  any  more.  But  in  ^conclusion 
he  would  simply  observe,  that  if  he,  or  his  friend 
(Mr.  BASCOM)  could  have  supposed  that  this  plan 
would  have  met  with  so  much  favor,  as  it  now 
was  receiving  at  the  hands  of  the  Convention, 
they  would  not  have  been  so  late  in  bringing  it 
forward,  and  at  present  all  that  they  asked,  was 
that  the  report  might  be  printed. 

Mr.  RHOADES  hoped  the  proposition  would 
be  printed  and  adopted.  It  wras  in  accordance 
with  man's  natural  rights ;  and  was  perfectly 
Constitutional.  He  would  have  it  so  that  before 
the  suitor  who  gained  a  cause  should  be  allowed 
costs,  he  should  have  submitted  his  case  to  arbi- 
tration. He  hoped  it  would  not  be  referred  to 
the  Judiciary  committee. 

The  proposition  was  ordered  to  be  printed, 
and  was  then  referred  to  the  committee  of  the 
whole,  having  charge  of  the  reports  on  the  Judi- 
ciary. 

Mr.  SHEPARD  said  that  as  there  were  but 
few  members  present  (only  44  were  there)  he 
moved  to  adjourn.  Carried. 

The  Convention  then  adjourned  until  Mon- 
day. 


C60 


MONDAY,  (Q4th  day,)  August  17. 

Prayer  by  the  Rev.  Mr.  RAWSOIV. 

Mr.  CHAMBERLAIN  presented  a  remon- 
strance from  Livingston  county  against  transfer- 
ring the  literature  fund  to  the  common  school 
fund.  Referred  to  the  committee  of  which  Mr. 
NICOLL  is  chairman. 

Mr.  BOUCK  submitted  the  following  as  a  sub- 
stitute for  sections  1,  2,  3,  4  and  &  of  the  first  ar- 
ticle, and  sections  2,  3,  4  and  5  of  the  second  ar- 
ticle of  the  report  of  the  committee  No,  3,  of 
which  Mr.  HOFFMAN  is  chairman : 

1.  The  aggregate  indebtedness  of  the  stats  at  the  time  ol 
the  adoption  of  this  constitution,  shall  not  be  increased, 
unless  to  repel  invasion  or  suppress  insurrection. 

•2.  The  auction  and  salt  duties,  and  all  the  receipts  into 
the  treasury,  not  appropriated  to  other  funds  or  specific 
objects,  shall  be  set  apart  for  the  use  ol  the  general  fund. 

3.  The  tolls  collected  on  the  canals  and  railroads,  the 
rent  oi  surplus  wafers,  Sic.  the  proceeds  of  property  be- 
longing to  the  canals,  shall  constitute  the  canal  fund,  and 
are  appropriated  to  the  maintenance  of  the  canals  and  the 
ya\  ment  ot  the  canal  debt  and  interest,  except  as  herein 
otherwise  provided. 

4.  After  paying  the  expenses  of  collecting  the  tolls,  the 
superintendence  and  repairs  on  the  canals,  and  other  ex- 
penses (if  any)  properly  chargeable  to  the  canal  fund, 
$420,001)  shall   in  each    fiscal    year,    be  set  apart  from 
the    canal  revenues  as  a  sinking  fund,  to  pay    principal 
and  interest  of  the  general  fund  and  railroad  debts— as  set 
forth  in  the  annual  re-port  of  the  Comptroller,  oi  the   12th 
ot  January,  1816,  on  page  seven ;  and  also   $1,275000  in 
each  fiscal  year  shall  be  set  apart  from  the  canal  revenues 
to  pay  the  principal  and  interest  of  the  canal  debt.    The 
balance  of  the  canal  revenue  shall,  at  the  discretion  of  the 
legislature,  be  applied  to  pay  any  deficit  which  may  occur 
in  the  revenue  of  the  general  fund,  to  meet  the   expenses 
of  the  government,  or  to  the  payment  of  the  public  debt, 
or  to  the  completion  of  the  enlaigement  ol  the  Erie  canal, 
or  to  the  completion  of  the  Genesee  Valley  and  Slack  Bi- 
Ter  canals. 

5.  The  legislature  may,  to  meet  casual  deficits  orfailure 
in  the  revenue,  or  lor  expenses  rot  providedfor,  make  tern. 
porary  loans,  wnich  singly  or  in  the  aggregate  shall  not 
exceed  on-e  million  of  dollars.    Besides  such  temporary 
loans  the  legislature  shall  not  in  any  way  or  manner  cre- 
ate a  deb  which  shall  in  the  aggregate  exceed  five   mil 
lions  of  dollars,  except  to  repel  invasion  or  suppress  insur 
ruction:  and  every  law  authorising  a  loan  of  money,  ex- 
cept for  temporary  purposes,   shall  provide  for  a  sinking 
t.md  frora  available  sources  for  the  payment  of  the  interest 
on  the  moneys  loaned,  and  the  extinguishment  of  the  prin- 
cipal in  twenty  years,  or  a  less  time,  from  the  time  of  con- 
tracting such  loan  or  debt;  and  the  moneys  arising  irom 
any  loan  shall  be  applied  to  the  purposes  mentioned  in  the 
ac's  authorising  the  same,  and  in  the  final  pass-age  ot  such 
aclg,  in  either  house  of  the  legislature,  the  question  s-hail 
betaken  by  ay ts  and  nays  duly   enteied  on  the  journals, 
and  the  assent  of  two-thirds  of  the  members  piesent  in 
eich  house,  shall  be  necessary  for  the  passage  oi  any  such 
law;  and  such  law  shall  cot  be  repealed  or  modified  to  af- 
fect injuriously  or  adversely,  the  securities  and  intei  est  ol 
the  holders  of  the  stock  issued  upon  the  faith  and  credit 
thereof. 

6.  The  rates  ol  toll  upon  the  canals  shall  be  so  regulated 
and  adjusted,  as  that  the  aggregate  amount  of  revenue  re- 
ceive I  therefrom  shall  not  be  diminished,  until  the  existing 
canal  debt  is  paid.    After  that  period,  the  tolls  may  be  re- 
duced thirty  per  cent;  and  after  paying  all  the  expense; 
properly   chargeable  to  the  Canal  Fund,  $800,000  in  each 
fiscal  year  shall  be  set  apart  lor  the  use  of  the  General 
Fund;  $8CO,000  in  each  fiscal  year  shall  be  paid  over  to  the 
School  Fund— and  the  balance  shall  be  appropriated  to  a 
find  for  the  purpose  of  internal  improvements. 

7.  No  direct  tax  shall  hereafter  be  levie.i  on  the  real  and 
personal  property  of  the  people  of  this  state,  for  internal 
mprovements. 

B.  If  any  S:ate  stocks  outstanding  shall  fall  due,  and  the 
funds  herein  provided  shall  not  be'  sufficient  to  pay  the 
same,  the  legislature  shall  provide  for  such  payment  by 
the  issue  of  new  stock,  payable  at  the  shortest  period  with' 
in  the  ability  of  the  canal  revenues  to  meet  the  same. 

9.  The  Legislature  shall  not  pass  any  law  to  loan  the 
credit  of  the  State  to  any  corporation,  institution,  invidu- 
al  or  individuals,  or  in  any  manner  or  way  guarantee  the 


ayment  ol  any  stock,  bond,  or  other  instrument,  made,, 
executed,  and  issued,  by  any  corporation  or  institution 
whatever,  or  by  any  individual  or  individuals  whomsoever. 

Explanatory  of  the  foregoing  Propositions. 

The  sinking  fund  of  $420  000,  in  each  fiscal  year,  to  pay 
the  General  fund  debt  and  interest,  is  based  on  a  debt  of 
$5,835,549,  the  amount  stated  in  the  last  annual  report  ol 
the  Comptroller. 

The  Sinking  Fund  of  $1.275,000,  in  each  fiscal  year,  to* 
pay  the  canal  debt  and  interest,  is  based  on  a  debt  of  $16,- 
944,815. 

A  calculation  will  show  that,  at  the  rate  of  5*  per  cent 
interest,  the  Sinking  Fund  will  pay  the  General  Fund 
debt  in  26*  years,  and  the  cafcal  debt  in  24£  years. 

After  taking  from  the  canal  revenues  $500,000  for  col- 
lection and  repairs,  and  the  sums  mentioned  for  a.  sinking 
fund,  making  in  all,  $2.135,000,  there  would,  from  the  ca- 
nal revenue  of  the  fiscal  year  1845,  be  a  balance  of  $222,000  j. 
and  probably  from  1846,  of  $422,000. 

Referred  to  the  committee  of  the  whole  when 
in  charge  of  report  No.  Three,  and  ordered  to  be 
printed. 

The  Convention  then  went  into  committee  of 
the  whole  on  the 

REPORTS  ON  THE  JUDICIARY. 

Mr.  CAMBRELENG  resumed  the  chair. 

Mr.  SIMMONS — I  am  opposed  to  the  proposi- 
tion to  annex  chancery  powers  to  the  common 
law  courts y  and  in  favor  of  vesting  these  two  ju- 
risdictions in  separate  courts.  In  other  respects, 
I  would  have  the  equity  courts,  or  courts  consti- 
tuted like  those  of  common  law,  consisting  of  se- 
veral persons  and  not  one  man,  and  riding  equity 
circuits,  to  take  the  testimony  and  pronounce  de- 
crees in  the  first  instance,  in  analogy  to  the  prac- 
tice of  nisiprius  judges  in  courts  of  law.  The 
report  of  the  judiciary  committee  was  set  down 
for  consideration  at  an  earlier  day  than  was  ex- 
pected by  me,  but  on  receiving  notice  of  it,  I  lost 
no  tims  in  returning  from  my  residencey  so  as  not 
to  forego  the  opportunity  of  discharging  my  duty 
to  the  public  upon  this  important  question.  I 
was  determined  the  convention  should  not  com- 
mence the  work  of  mixing  these  jurisdictions,  so 
far  as  I  might  properly  prevent  it,  without  bear- 
ing the  responsibility  of  doing  it  with  their  eyes 
open. 

Gentlemen,  who  advocate  the  union  of  law  and 
equity  powers  in  the  same  court,  do  not  agree 
among  themselves  as  to  the  reasons  why  this  is 
to  be  done.  The  gentleman  from  New  York,  (Mr. 
O'CoNOK)  and  the  gentleman  from  Herkimer, 
(Mr.  LOOMIS)  take  the  ground  that  such  a  con- 
nection is  not  desirable  on  its  own  account  as  a 
permanent  arrangement,  but  only  as  a  temporary 
expedient,  to  secure  by  subsequent  legislation  an 
amalgamation  of  all  equity  and  common  law  re- 
medies, and  a  uniformity  of  proceedings  in  all 
cases  to  attain  such  remedies.  They  desire,  not 
merely  to  unite  the  jurisdictions,  but  to  abolish 
the  distinction  between  them,  and  to  assimilate 
the  proceedings  of  both  courts  to  those  of  Louis- 
iana or  other  States,  having  only  the  civil  law 
forms  of  proceeding,  somewhat  similar  to  those  of 
the  admiralty  courts.  Sir,  it  is  only  through 
courts  of  justice  that  we  can  see  and  know,  what 
the  law  truly  is.  These  two  courts  of  law  and 
equitv,  are  the  two  eyes  of  the  law.  But  what 
should  we  say  of  a  surgeon,  who,  being  called  on 
to  remove  a  splinter  from  one  of  a  person's  eyes, 
should  begin  with  questioning  the  necessity  of 
his  having  two  eyes  at  all ;  as  it  is  evident,  that 


661 


one  alone  will  answer  well,  and  all  the  better  for 
the  other's  being  put  out  or  never  opened  ;  and  so 
proceed  to  extinguish  the  diseased  one  as  unne- 
cessary ?  You  have  heard,  Mr.  Chairman,  of 
persons  slightly  deformed  by  nature,  having  one 
leg  a  little  shorter  than  the  other,  so  that  their 
steps  are  not  uniform  ;  now,  suppose  a  surgeon 
sent  for  to  cure  a  sprained  ancle,  or  set  a  broken 
leg,  for  such  a  person  ;  must  he  begin  away  back, 
beyond  the  case  of  complaint,  because  it  recurs  to 
him  the  man  was  not  made  right,  and  take  his 
frame  all  to  pieces,  in  order  to  equalize  his  limbs, 
before  proceeding  to  apply  the  remedy  ?  This  is 
what  these  gentlemen  propose  to  do  with  the  ju- 
diciary. They  say  the  judiciary,  because  it  con- 
sists of  two  courts,  one  of  law  another  of  equity, 
was  not  made  right ;  that  there  is  no  substantial 
difference  between  law  and  equity  as  to  the  reme- 
dies, but  only  a  formal  distinction  in  their  modes 
of  proceedings,  and  that  they  can  and  ought  to  be 
assimilated  into  ^.uniformity  of  judicial  proceed- 
ing. 

Other  gentlemen  are  only  for  uniting  the  two 
jurisdictions  in  the  same  courts,  not  of  blending 
their  proceedings;  conceiving  this  change  will 
improve,  not  impair,  the  useful  working  of  the 
judiciary ;  admitting,  however,  a  substantial  and 
permanent  difference  between  legal  and  equitable 
remedies. 

Now,  this  division  of  judicial  workmanship  is 
certainly  one  of  long  standing,  and  like  every 
other  division  of  labor,  has  brought  along  with  it 
expertness  in  the  workmen  and  excellence  in  the 
work  ;  the  progress  of  judicial  reform  seems  ev- 
erywhere else  to  favor  the  separation,  and  against 
the  connection  ;  and  the  reasons,  I  think,  must  be, 

First,  because  the  distinction  between  legal 
and  equitable  remedies  is  not  merely  a  difference 
in  the  forms  of  proceeding  in  the  two  courts,  but 
in  the  things  themselves.  The  authorities  are  all 
this  way.  This  is  the  doctrine  of  the  most  distin- 
guished judges  and  most  eminent  writers,  ancient 
and  modern.  I  shall  cite  some  of  these  opinions, 
not  as  binding  precedents,  but  as  useful  advisers 
for  this  Convention,  Afterwards  I  shall  examine 
the  reasons  for  such  opinions,  and  attempt  to 
show  them  to  be  well  founded  in  principle  ;  and 
upon  a  sifting  analysis  of  the  remedies  them- 
selves, as  distinguished  from  the  proceedings 
employed  to  attain  them,  and  from  the  machinery 
of  the  courts  called  to  administer  them. 

Mr.  Charles  .Butler,  the  distinguished  Annota- 
toi  upon  Coke,  in  the  first  volume  of  Ins  Remini- 
scences, says  "Equity,  as  distinguished  from  law, 
arises  from  the  inability  of  human  foresight  to  es- 
tablish any  rule,  which,  however  salutary  in  gene- 
ral, is  not  in  some  particular  cases  evidently  un- 
just and  oppressive,  and  operates  beyond  or  in 
opposition  to  its  intent.  The  grand  reason  for  the 
interference  of  a  court  of  equity  is,  that  the  im 
perfection  of  legal  remedy,  in  COILS,  qu.  nee  of  the 
universality  of  legislative  provisions,  may  be  re- 
dressed " 

Lord  Bacon  ?everal  times  declared  his  opinion 
to  the  same  effect.  "  All  nations,"  say  he  in  his 
speech  on  the  jurisdiction  of  the  Marches,  "  have 
equity.  But  some  have  law  and  equity  mixed  in 
the  same  court,  which  is  worse  ;  and  some  have 
it  distinguished  in  several  courts,  which  is  bet 
ter."  And  his  forty-fifth  Aphorism  reads  thus  :— ~ 


'Some  think  it  expedient,  that  the  jurisdiction 
which  decides  according  to  equity  and  good  con- 
science, and  that  other  which  proceeds  according 
I"  strict  law,  should  be  entrusted  to  the  same 
courts;  others  think,  to  different  courts.  By  all 
means,  there  should  be,  in  my  opinion,  a  separa- 
tion of  the  courts.  For  the  distinction  of  the  ca- 
ses cannot  be  presumed,  if  the  jurisdictions  are 
allowed  to  be  blended ;  but  discretion  will  at 
length  draw  to  itself  the  law." 

Judge  Story  says,  "  Lord  Hardwick  held  the 
same  opinion  ;  and  that  it  is  certainly  a  common 
opinion  in  countries  governed  by  the  common 
law."  And  again:  "  That  equity  jurisdiction  is 
founded  in  the  very  nature  of  remedial  justice." 

Mr.  Chairman,  I  will  now  read  from  Pro- 
fessor Wheewelfs  elements  of  Morality  and 
Polity,  where  the  learned  author  remarks  thus: 
"  Justice  and  equity,  originally  conceived  as 
identical,  in  the  course  of  time  were  separated; 
for  justice  in  its  administration  was  necessarily 
fixed  and  limited  by  laws  and  rules;  while  equity 
was  conceived  as  not  so  limited.  And  as  laws 
and  rules,  however  much  meant^  to  be  just,  and 
however,  carefully  constructed, 'will  yet  press 
upon  individual  cases  in  a  way  which  seems 
hard;  equity  was  conceived  as  that  kind  of  jus- 
tice which  was  not  thus  bound  by  laws  and  rules, 
and  which  was  disposed  to  relieve  such  hard- 
ships. The  virtue  which  exists  in  such  a  dispo- 
sition is  termed  by  Aristotle,  equity,  and  he  de- 
fines it  to  be  the  correction  of  the  law,  where  it 
is  defective  by  reason  of  its  universality.  Here 
is  a  defect,  not  in  the  law,  but  in  the  nature  of 
things,  and  the  equitable  is  opposed  to  ihe. rig- 
idly just" 

Now,  although  Aristotle  is  here  speaking  of 
moral,  not  of  civil  equity,  yet  as  the  learned  pro- 
fessor remarks,  further  on,  "  In  a  certain  sense, 
and  to  a  certain  extent,  equity  does  supply  de- 
fects in  the  law.  The  rules  of  equity  jurispru- 
dence came  into  being,  at  first,  as  remedies  to  the 
defects  of  law;  and  though  by  being  reduced  to  a 
fixed  form,  and  settled  maxims,  they  can  no  lon- 
ger be  appealed  to  as  remedies  for  all  hardships 
and  defects  of  law,  they  have  still  a  remedial  and 
supplementary  character."  These  opinions,  Mr. 
Chairman,  come  from  one  of  the  most  eminent 
living  writers  of  the  present  age,  the  author 
of  the  History  and  the  Philosophy  of  the  In- 
ductive Sciences, .and  now  filling  the  chair  of 
moral  philosophy  at  Cambridge,  in  England. — 
The  view  to  be  taken  is,  that  the  same  distinc- 
tion between  justice  and  equity  in  moral  juris- 
prudence or  natural  law,  is  transferred  to  the  prac- 
tical administration  of  positive  law,  where  equity 
is  made  to  supply,  not  to  subvert  the  law  ;  that  is 
to  say,  the  law  of  remedies,  though  it  is  adminis- 
tered, not  according  to  the  judges  natural  dis- 
cretion, but  according  to  his  legal  discretion. — 
It  is  this  very  discretion  that  furnishes  the  rules 
of  decision  to  the  equity  judge,  and  forms  the 
"  better  half"  of  our  common  law,  but  cannot  be 
divorced  without  danger  to  the  other  half.  I  shall 
have  occasion  further  on,  to  show,  that  equity 
follows  the  law,  and  never  decides  differently 
from  a  court  of  law,  except  in  cases  which  in- 
volve circumstances  to  which  a  court  of  law  can- 
not advert. 

But  this  jurisprudential  equity,  as  distinguished 


662 


from  moral,  and  as  distinguished  from  legal  in  the 
administration  of  "justice,  was  actually  adopted 
and  reduced  to  practice  by  the  free  states  of  anti- 
quity, or  at  all  events  by  the  Greeks  and  Romans. 
"  In  Rome,"  says  judge  Story,  "  with  whom  ju- 
ridical institutions  are  best  acquainted,  not  only 
were  jurisdictions  intrusted  to  different  magis- 
trates; but  the  very  distinction  between  law  and 
equity  was  clearly  recognized.  A  broad  distinc- 
tion was  taken  between  action  at  law  and  action 
in  equity,  the  former  having  the  name  of  actiones 
civile*,  and  the  latter  of  actiones  Prastorice." 

It  is  well  known  that  the  Roman  Proctor  exer- 
cised equity  jurisdiction,  and  that  equity  constitu- 
ted a  large" portion  of  the  body  of  the  Roman  ju- 
risprudence, which  it  is  well  known  drew  largely 
and  constantly  from  the  laws  and  philosophy  of 
the  Greeks.  Indeed,  Wheewell  considers  the 
same  distinction  was  recognized  by  the  Christian 
dipensation.  [2  Wheewell,  99.]  Thus  it  appears 
that  equity  had  'its  birth  in  free  states,  and  en- 
lightened 'ages — not  in  monarchies  or  barba- 
rism. It  originated  in  Greece,  and  was  transplant- 
ed to  Rome— th<e  two  states  of  antiquity  distin- 
guished for  liberty  and  civilisation.  This  looks 
certainly  like  the  workings  of  nature.  From  them 
it  has  comedown  to  the  modern  nations, enriched 
with  the  experience  of  subsequent  improvements, 
and  wherever  it  has  been  adopted,  has  contributed 
to  make  them  virtuous  and  enlightened,  and  there- 
fore free.  The  jurisprudence  of  the  modern  states 
of  Europe  is  progressively  developing  equity,  as  a 
distinctive  branch  of  remedial  justice,  just  in  pro- 
portion to  their  progress  in  liberty  and  civilization. 
At  present  those  states  are  unequal ;  but  their  ap- 
proach to  equality  hereafter,  is  as  sure  to  follow  in 
this  as  in  other  things;  for  equity  jurisprudence, 
as  a  separate  branch,  has  ever  been  co-extensive 
with  the  intellectual  and  moral  progress  of  states 
— the  states  of  antiquity  and  modern  Europe. — 
The  difference  in  this  respect  between  England 
and  the  Continental  States  is  owing  to  the  circum- 
stance that  her  institutions  are  more  free  and  en- 
lightened, and  her  people  further  advanced  in 
practical  liberty  and  useful  science  ;  which  again 
is  the  necessary  consequence  of  having  enjoyed 
better  channels  of  communication  than  they,  with 
the  stories  of  the  old  jurisprudence  and  polity. — 
If  the  superiority  of  all  modern  institutions  to 
those  of  the  ancients  is  due  to  its  complex  charac- 
ter in  comparison  with  the  simple  elements  em- 
bodied in  those  of  former  times,  this  is  emphati- 
cally the  case  with  the  judicial  institutions  of  Eng- 
land and  America.  Courts  of  law  and  equity  are 
the  organs  of  jurisprudence,  by  which  it  acts  in 
society  and  impresses  its  image  on  the  morals  and 
character  of  the  people.  The  jurisprudence  of 
Rome  has  come  down  to  most  of  the  nations  ot 
E'.irope  mutilated  of  one  ot  its  organs,  and  the 
other  is  of  course  morbidly  enlarged.  England 
alone  has  adopie-1  both  of  these  courts  of  law  and 
equity,  the  former  from  the  feudal,  the  laiter  from 
the  civil  law,  deriving  throuah  ihe  first  the  princi- 
ples of  personal  liberty,  and  of  real  property,  and 
from  the  second,  those  ot  moral  semiment  and  per- 
sonal property.  Her  selections  of  both  these  courts 
are  certainly  justified  by  their  effects  and  workings, 
for  they  have  drawn  with  them  from  those  two 
systems  of  ancient  laws,  the  best  portions  of  both, 
and  infused  them  into  the  modern  laws  of  Eng- 


land and  these  United  States.  The  union  of 
both  in  the  common  law,  makes  this  a  law  of 
liberty  and  morality.  The  feudal  has  liberal. 
ized  the  civil,  and  the  civil  has  moralized  the 
feudal,  and  Christianity  has  moreover  divinely 
tempered  Jhem  with  the  law  of  charity.  And 
yet,  sir,  at  this  late  day,  in  the  middle  of  the 
nineteenth  century,  we  are  eravely  invited  to  ex- 
change the  common  for  the  civil  courts  and  reme. 
dies. 

Mr.  Chairman,  what  is  the  connection  between 
the  jurisprudence  of  a  people  and  the  jurisdiction 
of  their  courts  ?  Precisely  that  between  the  rules 
of  civil  conduct  in  our  social  and  business  rela- 
tions, and  the  power  that  enforces  them.  The 
relation  is  that  between  rights  and  remedies.  You 
cannot  destroy  the  judicial  power,  without  just  so 
far  nullifying  the  legislative  power  ;  you  cannot 
take  away  remedies  without  destroying  rights. — 
Besides,  jurisdiction  has  always  preceded  legisla- 
tion in  the  order  of  time  as  art  goes  before  science, 
and  practice  before  theory,  in  human  affairs.  This 
makes  me  fear  to  change  the  jurisdiction,  lest  I 
destroy  the  jurisprudence  of  the  courts.  I  am 
afraid  of  losing  so  much  of  the  law  itself.  Need 
I  say  any  thing  here  upon  the  value  to  us  and  the 
world,  of  the  common  law  ?  What  has  it  cost  ? 
Let  me  just  glance  at  its  rise  and  growth. 

At  the  beginning  of  the  Christian  era,  Europe 
consisted  of  two  unequal  portions,  the  Southern 
comprising  Greece,  Italy,  Belgium,  France, 
Spain,  Portugal  and  Britain,  constituting  togeth- 
er the  seat  of  the  Roman  empire ;  the  Northern, 
comprising  the  vast  central  plains  of  Europe,  ex- 
tending far  towards  the  pole,  forming  an  almost 
interminable  wilderness,  and  occupied  by  various 
nations,  bearing  the  general  name  of  Germans. 
Their  manners  and  institutions  were  widely  dif- 
ferent from  those  of  the  Romans.  They  had  made 
considerable  advances  in  arts  and  government,  be- 
yond the  condition  of  Aboriginals,  but  were  then 
far  behind  the  Romans  in  laws  and  letters.  But 
their  institutions  were  essentially  democratical, 
while  those  of  the  Romans  were  become  Monar- 
chical. Their  institutions  were  on  the  advance, 
while  those  of  the  Roman*  were  on  the  decline. 
Among  these  Germans  the  people  elected  their 
own  chiefs,  enacted  their  own  laws,  and  admin- 
istered their  own  justice  personally,  for  they  had 
the  trial  by  jury.  Here  we  find  the  seeds  of  our 
own  free  and  popular  institutions.  The  over- 
throw of  the  Romans  by  these  northern  nations, 
at  the  close  of  the  fifth  century,  produced  a  mix- 
ture, not  a  fusion  of  those  two  opposite  systems 
of  laws  and  government.  From  this  amalgama- 
tion emerged  at  the  close  of  the  fifteenth  century 
the  present  political  and  civil  institutions  of  Eu- 
rope. In  every  European  state  the  body  of  its 
common  law  is  a  compound  in  different  propor- 
tions of  these  older  systems  of  jurisprudence,  the 
German  and  the  Roman,  generally  known  as  the 
feudal  and  the  civil  law.  The  common  law  of 
England  was  formed  by  the  union  of  these  two 
sources,  just  as  plainly  to  my  mind,  as  that  the 
Lower  Mississippi  at  New  Orleans  comes  from 
the  mingled  waters  of  the  Missouri  and  Upper 
Mississippi.  In  those  states  of  Europe  that  now 
hold  the  seat  ol  the  ancient  Germans,  the  largest 
portion  comes  from  the  Feudal  law;  in  those  oc- 
cupying the  seat  of  the  Romans,  from  the  civil. 


663 


But  England  situated  on  the  confines  9!' both  and  in- 
sulated, from  the  others,  was  enabled  to  avail  her- 
self of  these  resources,  in  better  proportions.  I  Id- 
policy  was  that  ul't-Iccticixni,  to  seek  all  things  ;m<l 
holdfast  thcuood.  Hence  her  jurisprudence  par- 
niore  of  the  civil,  and  less  of  the  feudal  law, 
than  the  Northern  States;  and  more  of  the  feudal 
and  less  of  the  civil  than  the  Southern,  as  for  in- 
stance, France  and  Spain.  The  grand  result  of  the 
whole  is,  that  complex  body  of  principles  pos- 
sessed by  England  and  the  United  States,  call- 
ed the  common  law. 

To  bring  this  law  into  action  and  to  give  it  ap- 
plication to  individuals,  so  as  to  make  it  availa- 
ble to  society,  courts  of  judicature  were  organi- 
sed as  a  part  of  it.  The  common  law  here  too 
selected  wisely  from  each  of  the  primitive  sys- 
tems ;  courts  of  law,  with  their  living  witnesses 
and  jury  trials,  from  the  German;  and  courts  of 
equity,  with  their  written  testimony  and  trials  by 
the  judges,  from  the  Roman  law.  England  took 
her  ordinary  tribunals  from  the  free  and  popular 
institutions  of  the  North — and  her  extraordinary 
courts  from  the  imperial  institutions  of  the  South. 
France  and  some  others,  adopted  the  Roman  law 
mutilated  of  its  equitable  jurisdictions,  but  in 
possession  of  the  legal ;  and  instead  of  adopting 
from  the  northern  nations  their  living  witnesses 
and  jury  trials,  are  just  beginning  to  borrow  them 
second-handed  from  England.  She  from  the  first 
adopted  only  the  worst  and  repudiated  the  best  of 
of  the  Roman  tribunals,  while  England  from  the 
first,  rejected  the  worst  only,  and  adopted  the  best 
courts  from  both  systems.  But  the  subject  of  legal 
reform  is  now  progressing  in  Europe  as  well  as 
America;  jury  trials  are  beginning  to  be  engraft- 
ed on  the  civ;J  law  courts  of  France,  Scotland, 
and  others,  and  we  may  anticipate  a  gradual  se- 
paration of  their  law  and  equity  courts ;  for,  after 
all,  it  is  only  a  struggle  of  human  reason  for  a  more 
perfect  division  of  human  labor,  and  a  more  per- 
fect protection  of  human  rights. 

If,  then,  Mr.  Chairman,  the  Greeks  and  the 
Romans  were  right  in  dividing  these  labors,  and 
separating  these  remedies ;  if  Story  is  right  in 
founding  this  distinction  in  the  very  nature  of  re- 
medial justice ;  if  all  nations  have,  and  must  have 
both  law  and  equity,  as  Bacon  thinks  ;  if  it  is  bet- 
ter to  have  them  separate  in  different  courts,  and 
worse  to  have  them  mixed  in  the  same,  as  he  con- 
tends ;  if  this  separation  is  one  of  the  safeguards 
of  liberty,  and  an  evidence  of  moral  and  political 
progress ;  if  man  improves  in  the  moral  as  he 
does  in  the  physical  arts,  by  a  division  of  labor — 
then  surely  the  tendency  of  society  is  to  separate 
the  courts  of  law  and  equity,  aiMl  so  to  secure 
more  expert  and  competent  judges,  more  prompt 
and  perfect  remedies. 

Until  this  Convention  assembled,  such  has 
been  the  case  with  America.  Our  progress  here- 
tofore has  certainly  been  favorable  to  a  gradual 
separation  of  law  and  equity  jurisdictions.  In  ail 
our  states,  except  Louisiana,  which  has  the  civil 
law  ,equity  jurisdiction  is  txtrciacd  apart  from  that 
exercised  by  courts  ot  law,  though  vested  oiten  in 
the  law  courts  ;  but  in  none  out  of  Louisiana  are 
the  proceedings  confounded.  In  Pennsylvania 
the  legislature  in  1&>4U  conlerred  general  equity- 
powers  on  the  supreme  court  within  the  great  bu- 
siness metropolis,  the  city  and  'county  of  Phila- 


delphia. Large  equity  powers  have  been  recent- 
ly conferred  on  other  courts  in  that  state  ;  and  in 
Virginia  separate  equity  powers  have  been  con- 
ferred within  the  city  of  Richmond  and  its  county. 
In  Kentucky,  for  thj  city  of  Louisville.  Several 
have  separate  equity  courts,  but  in  none  af- 
ter these  jurisdictions  have  become  separated 
have  they  been  again  united,  much  less  con- 
founded. 

If  equity  jurisdiction  is  not  yet  fully  developed 
in  any  one  of  our  states,  it  is  because  this  branch 
of  our  law  is  of  later  growth,  and  only  comes  up 
with  the  growing  maturity  of  a  people.  It 
scarcely  had  an  existence  as  a  distinct  branch  of 
jurisprudence  during  the  colonial  state  of  any 

;eople,  and  such  was  the  case  with  New  England, 
ut  then  it  as  surely  developes  itself  with  the  so- 
cial progress  of  every  prosperous  people.  Indeed 
equity  jurisdiction  in  some  form,  will  keep  pace 
with  equity  jurisprudence,  because  the  practical 
applications  of  justice  are  thereby  brought  into 
closer  accordance  with  our  theoretical  concep- 
tions of  it.  All  states  have  equity  as  well  as  law, 
more  or  less  blended  or  separated.  Even  Louis- 
iana with  her  uniform  code  of  procedure,  is  com- 
pelled to  have  equity.  Her  session  laws  for  the 
last  ten  or  dozen  years  shows  an  equitable  inter- 
position of  the  legislature,  and  several  times  in  a 
session  to  correct  and  amend  the  harshness  and 
imperfection  of  her  uniform  code  to  prevent  a  re- 
currence of  similar  cases.  In  the  New  England 
states  before  equity  jurisdictions  were  establish- 
ed, there  was  a  perpetual  resort  to  the  legisla- 
tures for  relief  in  particular  cases,  where  the  com- 
mon law  courts  were  deficient,  a  practice  which 
tended  to  a  dangerous  and  arbitrary  confusion  of 
legislative  and  judicial  powers.  Even  in  crimi- 
nal jurisprudence,  there  must  be  a  power  lodged 
somewhere,  to  interpose  against  hard  cases  of  re- 
gular convictions,  which  is  reserved  in  a  frag- 
mentary form  only,  under  the  name  of  the  par- 
doning power,  in  the  hands  of  the  executive  ;  but 
is  subjected  to  no  regular  operation  of  rules,  such 
as  was  recommended  by  Bacon's  aphorisms  relat- 
ing to  criminal  courts  of  equity.  Cut  oft'  this  par- 
doning power,  and  your  courts  and  juries  will  ex- 
ercise it  irregularly  and  at  random  ;  so  abolish 
equity  jurisdiction  in  civil  cases,  and  it  will  be 
exercised  by  courts  and  juries  without  law  or  rule, 
under  the  seductive  influences  of  particular  hard 
cases. 

This  seems  to  be  the  doctrine  of  Scotland, 
too,  where  they  have  the  civil  law.  "  At 
present,"  says  a  writer  in  the  Edinburgh 
Review  of  April,  184(3,  in  an  article  on  Lord 
Campbell's  Lives  on  the  Chancellors  of  England, 
"  now  and  then  a  few  hasty  reformers  of  the 
Cromwellian  school,  may  be  heard  talking  about 
the  abolition  of  the  Court  of  Chancery ;  yet  all 
who  know  what  they  are  talking  about,  would  as 
soon  speculate  on  the  restoration  of  a  Court  of 
Criminal  Equity  in  the  detested  Star  Chamber." 
Mr.  Chairman,  I  confess  1  am  afraid  of  the  con- 
sequences of  even  uniting  these  jurisdictions — 
much  more  of  blending  their  proceedings.  1  am 
aware  that  some  persons  in  the  outset  of  their 
professional  studies,  disrelish  this  distinction  be- 
tween law  and  equity — between  courts  proceed- 
ing according  to  strict  law,  and  those  deciding  ac- 
cording to  discretion  arid  good  conscience,  just  as 


664 


if  the  rules  of  equity  jurisprudence  were  the  dic- 
tates of  the  personal  conscience  and  personal  dis- 
cretion of  the  judge,  instead  of  being  the  con- 
science and  discretion  of  the  law.  Such  persons 
always  make  fun  of  Lord  Coke  for  saying  : — 
"That  the  common  law  itself  is  nothing  but 
reason,  which  is  to  be  understood  of  an  artifi- 
cial perfection  of  reason,  gotten  by  long  study, 
observation,  and  experience,  and  not  of  every 
man's  natural  reason.  And  therefore  if  all  the 
reason  that  is  dispersed  in  so  many  several  heads, 
were  united  into  one,  yet  could  not  he  make 
such  a  law  as  the  law  of  England  is;  because  by 
many  successions  of  ages,  it  hath  been  fined  and 
refined  by  an  infinite  number  of  grave  and  le.  rn- 
ed  men,  and  by  long  experience  grown  to  such 
a  perfection."  I  can  only  commend  my  young 
friends  to  Wheewell  to  learn,  not  merely  that 
there  is  a  national  conscience,  common  to  all  of 
one  nation  and  expressed  by  its  laws ;  but  a  uni- 
versal conscience,  common  to  all  nations  and  ex- 
pressed by  the  Law  of  nations. 

Thus  lai,  Me.  Chairman,  1  have  only  attempted 
to  show  up  the  origin  and  progress  of  law  and 
equity  jurisdictions,  and  their  tendency,  always 
and  everywhere,  not  to  union,  but  to  a  .separa- 
tion,' and  it  is  only  within  the  last  two  days  that 
1  have  met  with  one  solitary  opinion,  coming  from 
one  of  the  puisne  judges  of  the  supreme  court  of 
India,  and  in  opposition  to  that  ot  the  chief  jus- 
tice and  his  other  associates,  that  equiUble  reme- 
dies may  be  administered,  in  India,  confounded 
with  legal  ones,  and  by  the  same  cuuit,  under  simi- 
lar forms  ot  proceeding,  saving  to  this  court, 
however,  all  the  working  machinery  appertain- 
ing to  both  systems.  This  opinion,  it  nut  meant 
to  he  coutiaeu  io  the  peculiar  laws  of  India,  which 
may  have  many  peculiarities,  rrom  its  Asiatic  ori- 
gin and  character,  is  <it  least  balanced  by  its  saving 
clause;  and  therefore  torms  no  exception  to  the 
uniform  current  of  opinion  from  Aristotle  and 
Ciceio  to  Bacon,  Hall,  Butler,  Kent,  and  Story, 
the  other  way — whose  opinions  are  confirmed  by 
their  own  great  personal  expeiienceas  judges,  and 
by  ihe  general  sentiment  and  practice  of  the  most 
enlightened  states  in  the  old  world  and  new — in- 
cluding our  own. 

Mr.  Chairman,  I  am  aware  that  gentlemen  do 
not  intend,  by  exchanging  common  law  tor  civil 
law  proceedings,  to  exchange  common  law  for 
civil  law  remedies,  much  less  common  law  for 
civil  law  rights.  And  yet  the  very  forms  of  pro- 
ceedings stick  so  close  to  the  substance — the 
practice  of  courts  is  so  adhesive  to  their  doctrines — 
that  I  am  afraid.  Are  we  prepared  to  let  go  our 
hold  of  the  common  law  ?  I  say — no  ! — no  ! 

What  should  we  gain  by  it  ?  I  know,  sir,  that 
this  is  not  the  time  or  place  to  speak  of  the  com- 
parative merits  of  the  two  systems  of  law,  or  of 
their  respective  influences  in  the  great  work  of 
modern  civilization.  But  just  trace  your  finger 
over  the  map  of  Europe — distinguish  the  civil 
law  countries  from  that  governed  by  the  common 
law,  and  then  say,  which  has  done  most  to  eman- 
cipate the  souls  and  bodies  of  men  ?  Which  to 
unfold  the  inventive  powers,  to  discover  the  sci- 
ences and  invent  the  arts,  to  create  and  give  skill 
to  industry  in  all  her  exertions  in  agriculture, 
manufactures,  and  commerce,  to  raise  a  high  stan- 
dard of  civilization  at  home,  and  to  carry  it  to  all 


the  destitute  parts  of  the  earth  ?  Which,  to  ex- 
tend the  area  of  liberty  and  popular  institutions? 
Which  is  the  most  inclined  to  a  government  by 
laws,  and  which  to  a  government  by  arms  1 

Mr.  Chairman,  up  to  this  stage  I  have  been  en- 
deavoring to  show,  that  there  is  a  substantial  dif- 
ference between  legal  and  equitable  jurisdictions, 
or  rather  between  the  remedies,  by  the  opinions' 
of  eminent  authors  and  the  practice  of  eminent 
states  and  nations ;  but  1  promised  not  to  leave 
you  here,  but  go  further  and  prove  this  distinc- 
tion upon  reason  and  principle,  by  an  examina- 
tion of  the  things  themselves.  I  contend  that  the 
division  of  remedies  into  legal  and  equitable,  is 
founded  on  a  natural  distinction,  and  that  it  is 
impracticable  to  blend  them  under  a  common 
code  of  procedure,  or  to  administer  them  by  the 
machinery  of  courts  similarly  organized. 

But,  first,  it  is  proper  io  examine  the  modes  of 
proceeding,  by  which  the  remedies  are  obtained 
respectively  in  the  two  courts.  It  will  thus  be 
seen  that  the  remedies  themselves  aie  independent 
of  the  fotms  of  proceeding.  In  short,  the  reme- 
dy is  the  relief  or  redress  obtained  by  the  proceed- 
ing: it  is  just  that  indemnity  which  the  party  in 
fault  ought  to  render  to  the  other  party  volunta- 
rily and  without  any  proceeding  in  Court.  It  dif- 
fers from  the  judicial  proceeding,  just  as  the  cure 
of  a  broken  bone  differs  from  the  surgeon's  opera, 
tion.  The  proceedings  may  be  various  to  obtain 
the  same  or  similar  remedies,  and  may  be  the  same 
or  similar  to  obtain  different  remedies,  because 
thev  are  not  the  remedies  but  only  the  means  of 
obtaining  them.  The  different  forms  of  proceed- 
ing in  courts  of  law  and  equity  in  England  and 
this  country  was,  indeed,  the  result  of  accident. — 
Those  of  the  equity,  probate  and  admiralty  courts, 
were  borrowed  from  the  Roman  Law,  those  ot  the 
common  law  courts  mainly  from  the  German  cus- 
toms. 

It  has  been  urged,  that  the  difference  between 
law  and  equity  jurisdiction  is  oiJy  that  between 
the  two  systems  of  pleading,  and  not  the  reme- 
dies. But  this  cannot  be  so.  The  pleadings  may 
be  transformed  and  leave  the  remedies  the  same. 
The  office  of  pleading  is  the  same  in  both  courts, 
namely,  to  apprise  the  parties  beforehand  of  the 
nature  of  one  another's  claims,  arid  the  court  of 
the  questions  to  be  disputed.  The  common  law 
affects  this  by  requiring  the  parties  themselves  to 
so  plead  and  CQU&ierplead  as  at  last  toseparate  the 
disputed  from  the  undispuied  matter,  and  thus 
extricate  the  point  in  dispute  for  the  court ;  the 
civil,  by  allowing  each  party,  once  for  all,  to  set 
forth  the  whole  of  his  case  at  large,  and  leave  it  as 
a  task  for  thecolrt  to  make  the  reparation,  which 
s  done  by  the  solicitors  abstract  fur  the  court. — 
[t  clear  that  all  the  difference  between  the  two 
systems  of  pleading  is  matter  of  form,  and  may 
be  varied  without  varying  the  decree  of  the  re- 
medy adjudged  to  the  Daily,  instead  of  the  plead- 
ngs  being  the  remeuy,  that  is  contained  in  ihe 
decree  ot  ihe  court. 

Whether  it  would  be  expedient  to  so  reform 
the  pleadings  as  to  assimilate  them  in  both  courts, 
is  another  question.  I  think  not,  because  tho* 
for  the  purpose  of  pleading,  the  distinction  is  on- 
ly formal,  yet  on  account  of  the  distinct  organiza- 
tion of  the  two  courts,  and  the  peculiar  kind  of 
cases  to  be  tried  in  each,  it  becomes  important  to 


665 


retain  the  distinctive  tbrrns  of  pleading.  I  con- 
tend, then,  Mr.  Chairman,  that  there  is  a 
substantial  difference  between  legal  and  equita- 
ble remedies  ;  a  difference  so  marked  and  wide 
us  to  call  forth  a  corresponding  difference  in  the 
constitution  and  organization  of  the  courts.  To 
this  point  I  ask  the. particular  attention  of  the 
committee. 

Professional  gentlemen  speak  of  legal  rights 
and  legal  remedies  as  distinguished  t''O»»  equita. 
ble  riiihts  and  equitable  remedies,  yet  both  are 
comprised  under  the  description  of  civil  rights 
and  ctvii  remedies;  that  is  lossy,  rights  and  rerne 
dies  acknowledged  and  protected  by  the  law,  as 
opposed  to  such  as  are  merely  honorary,  moral,  or 
religious.  Now,  it  H  evident,  civil  remedies  in 
•borne  court  or  other  must  be  co-extensive  with  civil 
rights,  and  if  one  class  of  courts  cannot  grant  a 
remedy  in  all  cases  whatever  for  lh«  protection  of 
rights  recognised  by  the  law,  then  another  must, 
or  else  the  rights  themseUes  are  gone.  It  is  the 
duly  and  object  of  government  to  furnish  a  remedy 
for  every  right  by  courts  of  judicature  ;  but  to 
guard  against  indefinite  and  arbitrary  power,  it  is 
necessary  to  constitute  those  courts,  so  as  to  act 
as  checks  upon  each  other.  Solo  guard  against 
unchecked  power  in  a  legislaitve  body,  composed 
of  a  single  branch,  you  constitute  two  branches  so 
that  one  may  work  a  limitation  or  restriction  on 
the  powers  of  the  other.  The  judicial  power  in 
free  states  under  the  dominion  of  the  laws,  is  in 
like  manner  constituted  of  twocourts  or  systems 
of  courts — those  of  law  and  ot  equity,  to  operate 
as  limitations  and  restrictions  upon  the  powers  of 
each  other  Both  are  to  be  considered,  if  we 
would  have  precise  ideas  of  equity  jurisdiction. — 
For  the  :nost  precise  descriptions}  a  court  of  equi- 
ty is,  that  it  has  jurisdiction  in  all  cases  of  rights 
acknowledged  by  the  law,  but  without  remedies 
plain,  adequate  and  complete  in  courts  of  law. — 
Observe,  that  it  is  of  rights  acknowledged  and  pro- 
tected by  law,  not  mere  honorary  or  moral  ones; 
for  equity  must  follow  the  law  as  steadily  as  law 
courts  themselves  do. 

The  cases  where  you  have  not  a  competent  re 
medy  in  a  court  of  law  are  of  three  descriptions, 
namely  ;  where  the  matters  calling  for  relief  are 
of  such  a  character  as  are  not  cognizable  in  courts 
of  law,  and  they  give  you  no  remedy  at  all ;  2d 
where  the  cases  are  cognizable  there,  but  equity 
gives  a  better  remedy  ;  3d,  where  the  action  of 
both  courts  must  concur  to  furnish  a  remedy,  one 
acting  in  aid  of  the  other ;  so  that  equity  jurisdic- 
tion is  sometimes  exclusive,  sometimes  concur- 
rent, and  sometimes  auxiliary.  Now,  what  is 
the  difference  between  these  cases  and  those  cog- 
nizable and  remediable  in  courts  of  law,  and 
what  is  the  reason  of  the  distinction  ?  I  answer 
cases  cognizable  in  the  law  courts  are  limited  anc 
prescribed  by  law ;  that  is  to  say,  injuries  to  be 
redressed  there,  are  by  law  defined  and  enume- 
rated, in  order  to  prevent  the  capricious  and  arbi- 
trary action  of  the  court,  and  to  make  those  reme- 
dies easy,  clear,  and  free  from  uncertainty.  In- 
juries to  be  redressed  in  equity  courts  are  unde- 
fined, uuclassed,  non-enumerated. 

To  these  enumerated  cases  the  powers  of  the 
courts  of  law  are  restricted.  But  various  unfore- 
seen and  anomalous  cases  of  injury  not  falling 
under  any  one  of  these  classes,  and  not  capable  o" 


nomaous  an  non-enumerae  cases.  ese  are 
ourts  of  equity.  Suppose  a  man  that  has  a  large 
state  makes  his  will,  and  gives  particular  por- 
ions, specifically  described,  to  his  sons  A,  B,  C 


edress  by  means  of  any  one  of  these  prescribed 
emedies,  are  constantly  occurring.  The  most 
perfect  classification  that  human  ingenuity  has 
>een  able  to  devise,  fails  to  include  all  the  cases, 
hat  in  fact  occur,  because  man's  ability  to  ar- 
•ange  and  classify  injuries,  is  never  so  compre- 
icnsive  as  power  to  commit  new  ones.  This 
classification  of  injuries  and  limitation  of  judicial 
Dower  to  prescribed  remedies,  is  no  peculiarity 
of  the  common  law.  The  security  of  the  people 
against  unrestricted  power,  and  the  need  of  cer- 
tain and  settled  rules  in  their  application  to  com- 
mon cases,  have  induced  in  every  age  and  every 
country,  similar  restrictions  of  judicial  power 
and  limitations  of  the  remedy,  under  the  name  of 
action*, 

Besides  courts  of  prescribed  jurisdiction,  we 
need  others  to  take  care  of  anomalous  cases,  cases 
not  falling  under  any  of  the  prescribed  actions, 
and  yet  amounting  to  civil  injuries,  recognized 
ay  law  and  equally  demanding  redress  ;  other- 
wise the  laws  fail  to  protect  their  own  acknow- 
ledged rights,  and  are  so  far  void  and  nugatory. 
Some  courts  there  must  be,  then,  that  are  not 
bound  down  to  these  enumerated  injuries  and 
prescribed  remedies,  to  take  cognizance  of  the 
anomalous  and  non-enumerated  cases.  These  are 
courts 
estate 
tions, 

and  D,  and  then  all  the  residue  of  his  estate, 
without  specifying  the  articles,  to  his  son  E.  — 
Here  the  first  named  children  are  specific  lega- 
tees, and  E  is  the  residuary  legatee.  This  is  the 
relation  between  courts  of  law  and  those  of  equity. 
The  powers  of  the  former  extend  only  to  cases  of 
injury  and  remedy  specified  and  prescribed  by 
law;  the  latter  to  those  not  particularly  speci- 
fied, but  only  generally  and  en  masse  acknow- 
ledged such  by  the  law.  Such  cases  are  intend- 
ed to  be  but  few  compared  to  the  whole,  and  in 
the  nature  of  exceptions  to  classes  ;  and  yet  there 
is  always  a  considerable  number  in  a  highly  civil- 
ized community.  But  to  understand  this  ground 
of  distinction  between  courts  of  law  and  of  equity, 
and  the  necessity  of  upholding  both  as  checks 
upon  each  other,  we  must  look  at  them  as  consti- 
tuting, both  together,  the  depositories  of  all  the 
judicial  powers  of  the  government,  and  see  how 
they  stand  related  to  the  legislative  powers. 

No  man  who  hears  me  need  be  reminded  that 
the  legislative,  the  judicial  and  the  executive 
powers,  must  be  coextensive  with  each  other;  — 
that,  for  instance,  the  judicial  power  of  the  gov- 
ernment, in  the  language  of  Mr.  Justice  McLean 
of  the  Supreme  Court  of  the  Union,  must  be  co' 
extensive  with  the  legislative;  in  other  "words' 
remedies  must  be  co-extensive  with  rights,  an 
every  right  must  have  its  remedy,  or  it  ceases  td 
be  a  right,  in  a  legal  sense,  and  is  so  far  nullifieo 
and  extinguished.  Ofcour.se,  this  is  not  rneand 
of  man's  moral,  religious  or  honorary  rights,  but 
of  legal  rights,  rights  recognised  by  law.  Thest 
rights,  as  to  their  legal  character,  and  so  far  ae 
they  are  legal  rights,  are  the  creatures  of  the  laws 
making  power,  and  must  have  their  remedie- 
supplied  by  the  courts,  the  law-applying  powers 
hence  the  powers  of  the  judiciary,  which  give 
the  remedy,  must  be  precisely  co-extensive  with 
the  powers  of  the  legislature,  which  give  the 

'      58 


666 


right,  or  the  right  ceases  to  exist ;  and  not  only 
the  judicial  department  is  mutilated,  but  the  le- 
gislative also  and  executive  to  the  same  extent, 
and  the  law  itself  vox  prae  terea  nihil.  It  is  a 
first  axiom  in  the  law,  that  all  rights  have  their 
remedies,  and  that  those  things  only  are  remedies 
which  restore  the  rights  protected,  or  repair  the 
injuries  forbidden  by  the  laws  of  civil  society; 
just,  as  nothing  is  a  remedy  for  a  disease,  but 
what  restores  the  health  or  repairs  a  disorder  for- 
bidden by  the  laws  of  the  animal  economy.  It  is 
the  province  of  courts  to  ascertain  the  rights  and 
apply  the  remedies.  The  judges  must  understand 
both,  as  much  as  the  physician  who  understands 
by  his  science  of  pathology  to  distinguish  dis- 
eases, and  to  remove  them  by  his  skill  in  Thera- 
peutics. Now,  if  it  were  possible  to  make  a  per- 
lect  classification  of  all  civil  injuries  forbidden 
by  law,  and  to  prescribe  before  hand  all  the  ap- 
propriate remedies,  so  that  none  should  be  omit- 
ted from  the  list,  we  might  assign  the  whole  to 
one  and  the  same  court,  and  yet  impose  limitations 
and  prescribe  such  hums  01  proceed. ng  in  us  ac- 
tion, as  to  secure  ourselves  against  vague  and  un- 
defined power  on  the  one  hand,  and  a  failure  of 
remedies,  and  consequently  a  loss  of  rights,  on 
the  other.  But  human  wisdom  is  not  sufficient 
for  this;  we  can  only  divide  the  great  mass  of 
such  cases  into  classes  of  actions,  to  be  followed 
by  the  ordinary  courts,  and  then  constitute  an  ex- 
tiaordinary  tribunal  to  take  charge  of  the  residue, 
anl  nothing  bu':  the  residue,  that  its  action  may 
be  at  least  so  far  limited  by  reason  of  us  jurisdic- 
tion being  so  tar  confined  And  as  the  powers 
and  proceedings  of  courts  of  law  cover  the  whole 
field  ot  civil  injuries  and  remedies,  whether  con- 
tracts or  torts,  so  the  powers  and  proceedings  ol 
courts  ot  equity  cover  the  same  grounds;  and  the 
difference  is,  that  the  proceedings  in  the  courts  ol 
law  are  actions  of  account,  assumpsit,  debt,  and 
covenant,  in  matters  ot  contract;  and  of  trespass, 
case,  trover,  replevin  and  ejectment,  &c.  in 
.cases  of  tort;  and  the  proceedings  in  courts  ot 
equity  are  not  actions,  but  proceedings  in  the  na- 
ture of  the  same  actions  of  account,  assump- 
sit,  debt,  covenant,  trespass,  case,  trover,  reple- 
vin, ejectment,  &-c.,  in  cases  where  such  actions 
at  law  are  obstructed  or  insufficient  by  reason  of 
accident,  fraud,  trust,  or  where  the  remedies  must 
be  preventive,  or  specific,  or  conditional v&c.,  in 
order  to  be  effectual. 

Thus  each  court  presupposes  the  orher,  and  just 
balances  th^ power  of  the  other  ;  both  being  nec- 
essary to  prevent  a  failure  of  rights  and  remedies 
because  the  whole  of  the  judicial  power  is  noi 
committed  to  either  alone,  but  to  both  together, 
*  placed  in  the  relation  ot  specific  and  residuary 
partakers  of  all  the  judicial  au;hority.  And  Ji 
is  the  relation  between  them,  that  secures  us  a- 
gainst  discretionary  power  in  the  coui  is  of  justice. 
But,  sir,  there  is  another  peculiarity  in  equity 
Hirisdiction,  that  furnishes  another  reason  equally 
strong  against  blending  them  with  ci-urts  of  law 
This  is  the  complexity  ot  the  questions,  enter- 
tained by  courts  of  equity,  computed  to  the  sim- 
plicity  of  those  entertained  by  courts  of  law.  A 
court 'of  law  is  only  adapted  to  cases  between  two 
parties  or  sets  of  parties  ;  a  court  of  equity  to 
cases  in  which  a  greater  number  of  parties  is  con- 
ceraed.  All  who  have  any  interest  whatever,  in 


I  he  decree  to  be  made  may,  and  ail  who  aie  so 
connected  in  interest  thai  no  decree  can  be  made 
between  some  of  them  without  afierlinir  the  in- 
terest  of  all,  must  be  made  parties.  Now,  the 
business  transactions  of  men  are  not  merely  the 
simple  relations  between  two  parties  only,  or  se;a 
of  parties,  as  that  of  debtor  and  ci editor,  seller 
and  buyer,  borrower  and  lender,  &c.  which  raise 
only  simple  questions  triable  by  a  jury — 
but  usually  moie  complicated,  involving  the 
interests  of  dozens  and  hundreds,  and  all 
in  competition  with  each  other;  so  that 
no  final  adjudication  can  be  made  between  any 
two  sets  of  them,  without  settling  at  the  same 
time,  the  rights  of  all,  and  who  must  therefore 
be  made  parties  to  the  suit.  Courts  of  law  are 
organized  with  reference  to  the  trial  of  simple 
questions  between  two  parties  only  by  a  I'iry,  and 
therefore  are  not  adapted  to  the  examination  of 
very  complicated  transactions  between  numerous 
parties.  On  the  other  hand  courts  of  equity  ate 
organized  with  reference  to  this  class  of  question.?; 
and  the  machinery  of  these  courts,  consisting  of 
clerks,  examiners  and  masters,  is  well  adapted  10 
such  examinations.  I  now  hold  in  my  hand  the 
lUth  vol.  of  Paige's  chancery  reports,  in  which  on 
running  over  the  casesm  their  order,  I  find  as  many 
as  nine  out  of  ten-are  just  such  complicated  ques- 
tions between  numerous  parties,  involving  vari- 
ous interests  in  conflict  with  each  othe,r.  and  ail 
of  them  necessary  to  be  heard  and  determined  to- 
gether, before  justice  can  be  rendered  to  any  one. 
I  find  mortgage  cases,  involving  the  rights  of  both 
mortgagor  and  mortgagee,  and  at  the  same  time 
those  of  their  respective  assignees,  grantees  and 
judgment  lien  holders;  partnership  questions,  in- 
volving the  rights  of  many  co-partners,  and  of 
each  of  their  assignees  and  creditors ;  questions  of 
trust  to  be  executed  by  the  administrators  of  the 
estates  of  testators  and  intestates,  and  by  the  as- 
signees of  insolvent  debtors  and  even  under  fraud- 
ulent assignments  and  concealments  of  property, 
of  which  questions  not  any  part  of  any  one  of  them 
can  be  disposed  of  without  giving  all  parties  con- 
cerned an  opportunity  to  be  heard;  questions  of 
legacy  and  disbribution  among  the  next  of  kin 
equally  complex;  questions  of  marshalling  se- 
curities, that  is,  of  settling  the  order  of  their  pri- 
orities among  various  persons  having  dissimilar 
interests  ;  and  many  others  of  equal  complexity; 
all  involving  numerous  parties  and  as  numerous 
conflicting  interests.  In  fact,  the  main  bulk  of 
equity  causes  are  precisely  such  as  these  in  which 
all  the  parties  must  be  heard  together,  or  none  of 
them.  These  questions  could  not  be  determined 
by  a  jury  ;  and  if  they  could,  would  require  a  vast 
multitude  of  suits  at  law,  sometimes  running  up 
to  hundreds  ;  for  instance,  a  single  suit  in  equity 
against  the  stockholders  of  an  insolvent  corpora- 
tion, liable  for  its  debts,  brought  to  compel  a  con- 
tribution for  the  payment  of  those  debts,  saves  nu- 
merous separate  actions  at  law  by  creditors  against 
a  stockholder  for  their  debts,  and  several  others 
by  stockholders  against  co-stockholders  for  their 
shares,  &c.  Can  such  complicated  rights  and  li- 
abilities be  disposed  of  in  one  action  at  law,  by  a 
jury  ?  Bills  in  equity,  involving  the  interests  of 
numerous  parties,  do  in  fact  prevent  as  many  suits 
at  law  as  can  be  resolved  into  double  sets  of  par- 
ties, even  were  it  possible  to  take  them  in  detail ; 


667 


but  it  is  not,  at  least  without  discarding  the  trial 
by  jury  and  the  machinery  of  courts  oflaw,  and 
thereby  transforming  such  courts  in  fact,  into 
courts  of  equity. 

U'i.hout  regard,  then,  to  the  other  reisons,  be- 
fore sh.fd,  namely — I  hat  couits  of  law  must  be 
restricted  in  their  powers  to  cases  specifically  enu- 
merated by  law,  and  equity  courts  to  the  non-enu- 
merated ones — this  second  ground  of  distinction  is 
a  practical  arid  palpable  one — is  experienced  by 
every  professional  man — and,  if  the  proposed  con- 
fusion/ of  remedies  shall  -take  place,  will  be  felt 
by  other  men,  too,  as  embarrassing  in  business  and 
destructive  ot  many  rights  and  remedies.  Can 
any  gentleman  of  the  Convention  fail  to  perceive 
the  difference  between  questions  in  dispute  be- 
tween only  two  parties,  or  sets  of  parties,  and 
questions  among  parties  more  numerous,  and 
therefore  involving;  interests  more  complicated  ? 

But  Mr.  Chairman,  this  is  not  all;  there  are 
other  reasons  still  for  keeping  separate  our  law  and 
equity  jurisdictions,  depending  on  the  different  na. 
turps  ot  the  remedies  afforded  to  the  parties. 

Courts  of  law  have  been  wisely  confined  in 
their  powers  to  the  great  mass  of  business  actual- 
ly involving,  or  that  may  involve,  a  jury  trial, 
and  a  judgment  for  the  absolute  recovery  of 
money  or  property.  This  power  of  a  court  is 
well  known,  easily  applied,  and  usually  sufficient. 
Hence  for  cheapness  and  dispatch,  it  is  better  to 
confine  these  courts  to  these  cases.  But  a  retri- 
butive or  compensatory  remedy  is  not  always  suf- 
ficient; a  party  has  a  right  to  a  full  and  ample 
remedy  ;  sometimes,  then,  it  must  be  preventive 
by  injunction  against  fraud,  trespass  or  waste,  or 
specific,  giving  the  party  the  thing  itself,  and  not 
compelling  h,m  to  forego  it  for  an  equivalent  in 
damages,  taken  at  the  appraisal  of  a  jury. 

There  are  thousands  of  cases,  too,  where  both 
parties  are  in  fault.;  where  the  plaintiff  himself 
has  not  fully  performed  on  his  part,  and  the  judg- 
ment must  therefore  be  conditional,  as  a  decree 
allowing  a  party  to  redeem  after  forfeiture  of  his 
contract,  or  compelling  a  vender  to  accept  the 
balance  of  his  purchase  money,  and  convey,  not- 
withstanding a  default  in  the  purchaser.  All 
these,  too,  seem  to  be  of  too  distinct  a  nature,  and 
as  partaking  too  much  of  the  nature  ot  exceptions, 
to  allow  them  to  be  blended  and  tried  by  juries 
under  the  general  rules  of  law  relating  to  con- 
tracts, as  understood  and  applied  by  courts  of 
law  and  their  juries.  These  require  plaintiffs 
bringing  suits  upon  contracts,  to  have  performed 
all  things  on  their  parts  to  be  done,  before  com- 
mencing suits  against  the  other  parties  to  the 
contracts. 

These  cases,  I  grant  you,  are  only  between  two 
parties  or  sets  of  parties,  and  might  possibly,  for 
this  reason,  be  done  in  courts  oflaw,  as  in  Penn- 
sylvania, Canada,  Louisiana,  &c. ;  but  not  with- 
out the  hazard  of  confusing  established  ruins  of 
practice  in  all  courts,  even  of  justices  of  the 
peace,  and  so  far  of  turning  every  magistrate  into 
a  chancellor.  Are  we  prepared  for  such  a  revo- 
lution in  men's  views  and  habits,  as  to  the  con- 
struction of  contracts?  If  all  cases  arising  be- 
tween only  two  parties,  now  cognizable  in  equi- 
ty only,  can  be  transferred  to  courts  of  law  and 
despatched  there  by  a  jury,  still  the  transfer 
should  not  be  made  at  once,  but  by  little  and  lit- 


tle, so  that  parties  and  judges  not  familiar  with 
equity  jurisprudence,  may  become  prepared  for 
the  change,  and  may  come  to  distinguish  these 
equity  doctrines  from  the  other  principles  so 
long  acted  on  in  courts  of  common  law.  But 
there  is  another  point  of  comparison  between 
courts  of  law  and  equity,  much  more  important 
than  those  mentioned;  I  mean  the  division  of  la- 
bor, by  which  alone  expertness  in  the  workmen, 
and  excellence  in  the  work  are  to  be  secured  in 
your  judicial  establishment.  This  has  been  the 
parent  of  all  improvement  in  the  physical  arts  of 
human  society,  and  no  less  so  in  the  mental  ones. 
The  divisions  of  intellectual  labor  in  the  different 
professional  pursuits,  are  as  prominently  marked, 
and  as  evidently  productive  of  improvement,  in 
their  mental  operations,  as  in  those  of  the  hand. 
It  is  the  subdivision  of  mental  labor  in  the  medi- 
cal art,  that  has  produced  in  one  case  perfection 
in  surgical  operations,  and  in  another  the  cure  of 
diseases.  It  is  the  same  subdivision  that  has  pro- 
duced the  distinction  between  an  eminent  chan- 
cery judge,  and  another  equally  eminent,  for  a 
court  of  law. 

This  principle  of  dividing  judicial  labor  is  at; 
old  as  the  law  itself,  and  has  been  the  chief  canso 
of  its  increasing  certainty  fiom  age  to  age.  The 
talents  of  an  admiralty  judge  are  secured  by  limit- 
ing his  duties  to  that  branch,  which  gives  you  a 
Sir  VVrn.  Scott;  a  similar  arrangement  for  a  Pro- 
bate  Judge  gives  you  a  Dr.  Lushington ;  just  as 
ihe  peculiar  business  of , the  Supreme  Court  of  the 
United  States,  gives  you  a  great  Constitutional 
Judge  in  John  Marshall.  By  blending  these  two 
jurisdictions,  then,  we  shall  throw  the  law  back- 
wards as  a  science,  and  lose  the  advantages  here- 
afrer  to  be  gamed  by  the  division  of  labor.  No 
jsidtre  nor  bar  c-m  be  equally  well  acquainted  with 
Doth  branches  of  the  law,  because  these  two  paris 
of  jurisprudence,  though  bur  parts  of  one  whole, 
are  distinct,  parts,  and  have  been  advancing  and 
mowing  through  many  ages,  only  by  a  division  of 
labor.  Indeed,  sir,  we  throw  it  back  as  a  moral 
science,  and  retard  the  progress  of  moral  civiliza. 
tion.  Jurisprudence  is  just  so  much  of  morality  as 
is  established  by  the  State.  In  some  countries  a 
religion  is  established  by  the  State,  and  no  other- 
is  toleiated.  In  other?,  besides  the  State  estab- 
lishment, there  are  others  free  and  voluntary;  and 
in  other  countries,  ail  ate  voluntary  and  in- 
d^pendent  of  the  State.  Not  so  with  morali- 
ty. In  all  countries,  it  is  partly  voluntary, 
and  parHy  established  b.f  the  State.  Thin 
part  is  the  law.  It  is  not  made,  but  dis- 
covered, and  it  is  reared  to  perihelion  only  by 
much  observation  and  reflection.  It  has  its  ori- 
gin in  the  primitive  moral  relations,  its  growth  in 
their  cuittiie,  and  its  maturity  in  their  gene- 
ral development,  as  embodied  in  the  practice 
"fall  the  cMl  and  social  relations  of  lit'c.- 
Other  reasons  against  committing  two  jurisdic- 
tions to  the  same  court  are,  that  it  will  render  the 
rules  of  law  uncertain,  and  the  courts  arbitrary ; 
or,  as  Bacon  says,  the  '•  equity  branch  will  draw 
to  itself  the  legal,  and  discretion  will  master  the 
law."  Such  is  the  connection  between  jurisdic- 
tion and  jurisprudence,  between  the  powers  to 
apply  the  law,  as  a  system  of  pre-existing  rules 
of  decision,  and  the  rules  of  decision  themselves, 
upon  which  every  one's  rights  depends — that  I  am 


668 


afraid  of  transferring  such  a  large  portion  of  them 
from  separate  to  the  same  courts f  I  think  it  will 
necessarily  abolish  many  of  the  remedies  them- 
selves. When  you  take  away  the  remedy,  you 
destroy  the  right;  when  you  take  from  a  man  the 
remedy  to  collect  a  debt,  or  to  enforce  a  claim, 
you  destroy  the  right  or  the  claim.  This  is  worse 
than  repudiation — it  is  agrarianism  itself  in  high 
places.  There  are  some  reasons  against  this 
change  peculiar  to  America. 

We  already  have  the  common  law — we  have 
always  in  this  State  been  accustomed  to  separate 
courts  of  law  and  equity.  We  have  no  known 
legal  remedies  for  injuries  here  exclusively  cog- 
nizable in  equity,  as  some  of  our  sister  States 
have,  who  have  gradually  extended  their  reme- 
dies at  law  to  supply  in  some  degree  their  want 
of  equity  courts.  Now,  we  propose  to  change 
this  course  of  practice.  Is  it  safe  ?  I  think,  on 
the  contrary,  it  is  highly  dangerous.  It  is  ex- 
pected by  some  that  this  union  of  law  and  equity 
jurisdiction,  will  result  in  a  complete  amalgama- 
tion of  law  and  equity  proceedings;  and  its  ablest 
advocates  on  this  floor  "justify  the  union  solely  on 
the  ground  of  its  being  but  a"  temporary  evil,  and 
soon  to  result  in  a  great  ultimate  good,  a  common 
code  of  procedure. 

.but  lei  us  see.  A  written  code  is  well  charac- 
terized as  a  coat  of  mail.  It  is  stiff  and  inflexible, 
and  never  in  accordance  wiih  all  the  circumstan- 
ces of  a  case.  The  common  law  rules  are 
flexible,  and  accommodating  to  circumstances. 
Here  is  the  great  difference  between  common  and 
statute  law.  '  The  former  is  a  body  of  principles 
which  are  only  exemplified,  by  particular  cases 
and  expressed  terms;  me  lattep  is  in  fixed  and 
inherent  in  the  precise  terms  and  forms  express 
ed.  Now  we  are  a  young  and  growing  people, 
and  shall  need  this  flexibility  of  puneiples-  to 
accommodate  our  rules  of  social  life  to  our  growth 
and  experience.  Shall  we  throw  it  away  I  Shall 
we  in  the  very  act  of  reforming,  put  an  end  to 
further  reform  ? 

How  does  this  mixture  of  law  and  equity  work 
in  other  States  ?  In  Massachusetts  they  are,  dis- 
satisfied and  advancing  fast  towards  a  separation  ; 
because  in  the  lani^uage  of  one  of  their  judges, 
they  can  never  see  the  end  of  a  chancery  suit.  In 
the  western  States,  I  am  told,  it  is  difficult  to  Ml 
when  the  court  is  sitting  inequity  oral  law  in  the 
same  cause.  The  proposed  change,  in  my  opin- 
ion, is  sure  to  cost  us  all  the  benefits  o!  a  settled 
course  0f  practice,  to  increase  litigation  and  law. 
yers,  to  lower  the  character  of  our  judges  and  re- 
ports and  to  render  the  rules  of  property  less  cer- 
tain and  stable  Why  then  n  sort  to  it  ? 

The  administration  of  justice  will  be  attended 
with  greater  delays  and  expense  for  want  of  the 
•savings  and  advantages  arising  from  the  division 
of  labor,  such  as  greater  skill  in  the  bar  and  the 
court.  It  will  require  not  less,  but  more  judges 
to  do  the  same  work.  Your  judges  will  have  to 
hold  separate  terms  for  the  trial  of  equity  causes, 
as  much  as  if  they  were  judges  of  separate  equity 
courts.  But  for  the  very  purposes  designed  by 
its  leading  advocates,  namely,  the  assimilation 
into  one  code  of  all  proceedings  in  both  courts, 
this  mixture  will  obstruct,  not  aid  them  in  the 
work.  You  may  easily  mix  what  you  cannot 
identify,  and  confuse  what  you  cannot  distin- 


guish ;  but  if  you  wish  to  draw  clearly  the  line 
between  those  matters  now  carried  into  chancery/ 
but  which  might  as  well  be  done  in  courts  of  law, 
and  thc.se  others  which  must  necessarily,  or  can 
much  better  be  done  in  courts  of  equity,  you 
should  keep  them  distinct  lor  the  sake  (.f  clearer 
comparison,  and  go  to  work  gradually  in  re- 
moving from  equity  to  law  courts  all  mailers  pure- 
ly legal  and  which  can  as  well  be  transacted  there. 
I  mean  sir,  that  if  law  and  equity  jurisdictions, 
and  proceedings  are  ever  to  be  assimilated,  this 
should  be  done  by  degrees-  and  without  hazarding 
the  loss  of  remedies- and  rights  by  a  general  and 
rad.cat  innovation.  No  doubt  oral  distovery  upon 
oath,  equitable,  defences-  to  legal  claims,  creditor's 
bills  to  reach  chosesin  action,  foreclosures  of  mort- 
gages perhaps,  some  cases  of  accounts,  partitions  of 
real  estate,  protection  of  guardians,  infants,  luna- 
tics, &c.,  car>  be  done  in  law  01  probate  courts, 
some  of  them  better  and  some  of  them  not  so  well, 
as  they  now  are  in  equity  courts.  But  our  object 
should  be  not  to  mix  and  confuse,  but  to  separate 
and  simplify.  Simplify  the  proceedings  in  all- 
courts  so  tar  as  to  divest  them  of  unnecessary  verb- 
i  \ge  and  forms,  and  then  by  degrees  only,  trans- 
fer from  equity  to  law  courts  all  business  that 
can  as  well  be  done  there.  Give  to  your  courts 
ol  law  the  power  of  granting  a*  plain,  adequate 
and  complete  a  remedy  for  every  case  of  com- 
plaint known  to  the  law,  as  is  consistent  with 
well  defined  powers,  and  established  rules  of  pro. 
ceedings;  and  reserve  to  the  equity  courts  only 
such  cases  as  shall  befonndnet  to  have  such  plain 
and  easy  measures  of  remedy  at  law  by  pre. 
scribed  rules  and  modes  of  proceeding,  and  in 
ihe  exercise  of  lestricted  and  well' guarded  pow- 
ers jn  those  courts-. 

But,.  Mr.  Chairman,  I  suppose  I  must  take  for 
granted  that  there  is  to  be  a  union  of  equity  and 
law  jurisdictions  in  the  same  courts.  Then  how 
shall  they  be  constructed  ?  I  have  already  indi- 
cated an  opinion,  and  some  years  ago,  as  a  mem- 
ber of  the  legislature,  was  concerned  in  attempt- 
ing to  carry  into  the  Constitution-  a  re-organiza- 
tion of  our  equity  courts,  so  as  to  have  a  Supreme 
Court  of  equity,  consisting  of  an  equal  number  of 
judges  with  a  court  of  law.  But  assuming  there 
is  now  to  be  a  union  of  the  courts,  we  have  to 
provide  for  two  things — for  a  proper  unity  of  the 
judicial  department  as  a  single,  general,  State 
power y  and  for  the  proper  distribution  of  that 
power  in  its  action  among  all  parts  of  the  State. 
All  are  agreed  to  unite  bench  with  nisi  prius 
duties,.  This  alone  will  effect  much. 

Nearly  ail  a^ree  as  lo  ihe  necessity  of  avoiding, 
a  one-man  court,  so  as  to  discourage  the  multitude 
of  appeals.  All  seem  to  be  agreed  in  the  neces- 
sity of  constituting  both  general  and  local  juris- 
dictions—  that  is,  stale  and  county  courts  f  but 
gentlemen  differ  as  to  the  proportions,^  propor- 
tional forces,  to  be  emu)oyed  in  these  two  systems 
— the  majority  of  the  committee  recommend  a 
Trge— I  think,  an  excessively  large — number  of 
judges  for  courts  of  general  jurisdiction,  and 
proposejui-  re  skeletons,  or  courts  of  straw,  for  the 
counties.  1  think  this  is  wrong.  Courts  of  gen- 
eral jurisdiction  must  be  considerably  centralized, 
so  as  not  to  brinp  justice  from  one  man's  door,  in 
oider  to  carry  it  to  anothei's  ;  and  the  state  is  too 
large  for  the  judges  of  your  state  courts  to  hold 


669 


terms  in  bane  in  every  county,  unless  you  dispense 
entirely  with  county  courts,  and  increase  thejudges 
of  'he  state  courts  in  proportion. 

The  number  of  working  j,udges  including  four 
sitting  in  the  court  ot  appeals,  are  to  be  thirty  - 

'  two.  Now,  I  agree  that  this  number  may  be  suf- 
ficient to  do  the  business,  if  discreetly  organized  I 
and  arranged.  But  the  committee  propose  to  con- 
stitute but  one  court,or  system  of  courts,  combin- 
ing the  extremes  of  centralization  and  localiza- 
tion ;  and  yet  in  attempting  to  obtain  both  these 
objects,  they  fail  to  secure  either,  and  really  lose 
both.  They  shrink  from  carrying  out  their  own 
plan  into  a  court  in  bane  for  every  county,  as  a 
substitute  for  our  county  courts,  and  yet  they  cut 
up  and  divide  the  supreme  court  into  eight  local 
district  courts,  without  saving  us  any  central  one 
of  general  jurisdiction,  where  terms  can  be  held 
and  justice  administered  half  way  between  the 
extreme  parts  of  the  State.  Besides  losing  both 
objects  proposed,  this  system  will  bring  to  the 
ground  the  law  as  a  science,  for  decisions  ema- 
nating from  such  a  spirit-level  system  of  judges, 
will  be  too  numerous  for  credit  or  high  authority 
of  the  law,  and  we  shall  be  confined  to  the  court 
of  appeals  for  all  this.  I  think  these  thirty-two 
judges  ought  to  be  divided  into  two  sections  of 
sixteen  each,  and  that  half  of  them  should  be  or- 
ganised into  a  state  court  or  courts,  say  four  of  ge- 
neral jurisdiction  over  the  whole  State;  to  hold 
terms  in  bane,  say  four  annually  in  each  quarter  of 
the  state  ;  and  to  hold  circuits  at  law  and  in  equi- 
ty, once  yearly  in  all  the  counties;  and  then  the 
other  sixteen  judges  might  constitute  a  superior 
court  or  courts  of  local  jurisdiction  for  the  coun- 
ties, situated  within  their  several  districts;  to 
hold  terms  in  Dane  and  circuits,  as  the  judges  of 
the  Supreme  court,  but  more  frequently,  because 
not  expected  to  prepare  opinions  for  the  press. — 
The  terms  of  the  Superior  or  District  Courts 
could  be  arranged  to  be  held  at  different  times 
and  places  from  those  of  the  Supreme  or  State 
Courts,  aud  thereby  both  together  would  come 
very  near  to  serving  every  county  with  a  term  in 
bane,  as  well  as  a  circuit. 

For  these  reasons,  Mr.  Chairman,  I  shall  vote 
against  uniting  the  jurisdictions  of  law  and  equi- 
ty. It  is  even  admitted  and  felt,  that  chance- 

(ry  law  is  less  generally  known,  certain,  and  set- 
tled for  practical  purposes,  than  the  common 
rules  of  law;  even  one  Court  of  Chancery  is  not 
a  popular  institution.  Shall  we,  then,  create 
thirty-two  of  these  Chancellors,  less  experienced 
and  discreet,  and  thereby  increase  this  uncertain 
and  unpopular  system  of  courts  ?  I,  for  one,  can- 
not consent  to  it. 

TUESDAY,  (65th  day,)  August  18. 

Prayer  by  the  Rev.  Mr.  RAWSON. 
FUNDS  IN  CHANCERY. 

The  PRESIDENT  laid  belore  the  Convention  a 
communication  trorn  the  Chancellor  acknowledg- 
ing the  receipt  ol  JVlr.  MANN'S  resolution,  accom 
pained  by  a  circular  addressed  by  him  to  iheregis 
lets,  clerks.  &c.,  requiring  a  compliance  v\nh  ihe 
resolution,  and  the  employment  of  such  addition- 
al assistance  as  may  be  necessary  to  secure  a 
prompt  compliance  with  the  wishes  of  the  Con- 
vention. 

JVlr.  MANN  and  otheis  s-aid  there  was  no  secu- 


rity lor  any  action  on  this  cointnun:caiion,    and  it 
was  unanimously  laid  on  th*»  table. 

Mr.  MANN  presented  the  following  report  of 
the  special  committee,  to  whom  wys  referred  the 
communications  from  the  Chancellor,  with  the 
papeis  accompanying  it: 

That  they  havu  examined  and  considered  the  communica! 
tion  and  accompanj  nig  papers  separately  and  collectively, 
and  irom  the  documents  before  the  comti  ittee  they  discov- 
er that  the  papers  submittea  puipoit  to  contain  the  annual 
returns  Irom  the  several  chancery  circuits,  made  I  y  the 
register,  assistant  registers  and  clerks  by  order  of  the 
court,  and  under  the  l-27th  article  01  said  couit. 

It  ap)  ears  to  the  committee  that  the  aggregate  amount  of 
funds  iu  the  hands  and  under  the  control  of  the  chancellor 
reported  to  the  Convention  in  answer  to  a  resolution  adop. 
ted  by  the  Convention  requesting  ihe  Chancellor  ton  port 
the  aggregate  amount  ol  lunds  und<  r  his  contiol,  was 
made  up  from  the  papers  and  returns  submitted  to  the 
Convention,  and  referred  to  this  committee. 

By  a  close  examination  of  the  returns  and  papers  sub- 
mitted, the  coinmi  tee  discove;  many  essential  enorsin 
the  aggregate  amounts,  and  the  r  turns  ('run  which  the 
aggregate  n  port  was  evident  y  made)  lobe  defective  in 
very  many  paiticulars,  some  o;  which  give  only  abstracts 
omitting  many  of  the  most  essential  details  necessary  to 
make  any  correct  statemtnt  from  them,  which  would  be 
useful  to  the  Convention,  or  to  the  j.eople  at  large. 

Your  committee  also  obst-rve,  that  these  annual  returns 
make  no  statement  of  inures  and  ticcurculdtion,  01  inter- 
est accounts,  an  i  leave  this  portion  of  these  funds  entuely 
to  conjecture  orpresump:jon. 

There  appears  to  be  one  small  statement  of  interest  of 
cash  funds  in  the  si  coiui-citou  t,  accruing  ii|Oi.  $37 .424  63; 
hut  no  statement  ol  intert&t  for  the  $vH  6,563  returned  as  in- 
vested in  bonds  and  m»itgages;  wJh  this  exception,  no 
statements  of  itit  rest  or  accumulations  are  prest  n>etl.- - 
This  fact  alone  is  considered  by  your  committee  si  Hi  i<  nt 
to  render  the  statements  and  returns  imptrltct,  and  lall  lar 
short  of  the  actual  amount  of  these  lunds. 

The  interest  and  accumulation  of  the  funds,  of  property 
invested  in  bonds  and  mortgages,  New  Yoik  state  and  city 
stocks,  and  other  dividend  paying  stocks,  with  other  sub- 
stantial securities,  would,  when  added  to  the  principal, 
enlarge  the  aggregate  amount  to  a  very  great  extent,  which 
interest  and  accumulations  are  as  much  a  part  of  the  funds 
as  the  principal  it  elf. 

Therefore  your  committee  feel  it  to  be  theirduty  to  state, 
that  the  communicationfrom  h  s  honor,  the  chancellor,  and 
the  accompanying  papers,  do  not  contain  the  detailed  and 
essential  particulars,  nan  es  of  interested  parties,  suitors, 
owners,  heirs,  claimants  and  others,  who  have  a  right  to 
know  the  precise  amount  and  condition  ol  these  Jaige  lunds 
including  the  exact  amount  of  principal,  interest  and  accu- 
mulations, that  no  good  or  definite  result  can  he  arrived  at 
from  the  documents  submitted  to  your  committee. 

It  further  appears  to  yotir  committee,  that  large'amounts 
of  these  funds  a;e  in  the  hands  of  registers  an<;  clerks,  and 
more  directly  under  their  control  and  direction  and  man- 
agement, than  they  are  under  the  immediate  control  and 
direction  of  the  Chancellor  himself;  arid  the  funds  are  so 
placed  generally,  without  any  adequate  security  from 
those  who  have  the  more  immediate  direction  and  control 
of  them.  This  arises  no  doubt,  from  the  great  mass  of 
complicated  duties  and  business  forced  upon  the  Chancel- 
lor, which  renders  it  impossible  lor  him  to  have  the  imme- 
di-ite  supervision  and  management  of  these  multifarious 
lunds. 

With  a  view  to  the  better  security,  safety,  and  perma- 
nent investment  and  accumulation  of  these  funds,  for  the 
use  and  benefit  of  infanfs,  orphans,  widows,  heirs,  and  all 
parties  inteiested  theiein,  and  upon  the  presumption  that 
the  court  of  chancery,  as  at  present  organized,  will  be  abo- 
lished by  the  convention,  should  the  people  ratify  their 
action: 

Your  committee  recommend  the  adoption  of  a  provision 
in  the  constitution,  requiring  the  legislature  to  provide  by 
law,  for  the  placing  and  depositing  the  funds  and  securi- 
ties now  held  or  that  may  herealter  be  held  by,  and  under 
the  control  ol  the  Court  of  <  hancery,  in  the  State  Treasu- 
ry for  tale-keeping,  investment,  and  disbursement  ;  and 
that  the  Chancellor  he  requested  to  furnish  to  this  Con- 
vention the  items  constituting  these  funds,  in  accordance 
with  the  resolution  adopted  and  transmitted  to  him  on  the 
13th  instant,  at  his  earliest  convenience. 

Your  committee  further  report,  that  they  have  examin- 
ed the  aggregate  report  of  the  Chancellor  rderred  to  them, 


670 


showing  $2,921,900  38  as  the  amount  of  funds  in  his  hands 
and  under  his  control  ;  and  on  comparing  the  aggregates 
and  recapitulation  of  that  report,  with  the  returns  and  pa- 
pers (from  which  it  appears  to  be  made.)  find  that  it  is  de- 
fective, as  no  interest  or  accumulations  are  included  in 
the  amount,  and  that  it  is  even  less  than  the  returns  and 
papers  before  us  show  the  aggregate  to  be  :  this,  it  ap- 
pears to  the  committee,  occurs  from  clerical  errors  inad- 
vertantly made. 

Owing  to  the  apparent  inadequacy  and  defects  in  the  re- 
turns and  papers  referred  to  the  committee,  they  cannot 
recommend  the  printing  of  any  of  them  by  the  Convention; 
as  a  whole,  no  correct  information  would  be  derived  from 
them. 

All  of  which  is  respectfully  submitted, 

GEO.  S.  MANN,  Chairman. 

Mr.  MANN  said  that  the  committee  were 
unanimous  in  the  report,  with  a  single  exception 
upon  the  recommendation  of  the  committee  made 
in  the  report.  The  security  alluded  to,  was  in 
reference  to  transferring  the  funds  held  by  this 
court.  For  depositing  them  in  the  State  Treasu- 
ry, instead  of  leaving  them  as  they  now  are,  the 
gentleman  from  Genesee  preferred  that  these 
funds  should  be  deposited  in  the  county  treasu- 
ries, instead  of  being  deposited  in  the  State  Trea- 
sury as  recommended  by  the  report  of  the  com- 
mittee; this  trifling  variance  as  to  what  should  be 
done  with  these  funds,  was  the  only  difference  in 
the  committee.  With  the  exception  stated,  the  re- 
port was  unanimous. 

Mr.  TAGGART  agreed  with  the  report  ex- 
cept as  to  the  disposition  to  be  made  of  these 
funds  hereafter.  He  did  not  wish  it  to  be  impera- 
tive^ in  the  legislature  to  invest  these  funds  in  the 
State  Treasury.  He  thought  they  ought  to  be  in- 
vested with  a  view  to  local  objects  ;  as  these 
funds  came  from  certain  localities,  so  they  ought 
to  be  invested  there,  with  the  county  treasurer, 
instead  of  the  State  Treasurer.  The  parties  in- 
terested in  these  funds  would  be  much  better 
served  by  having  them  deposited  in  their  own  lo- 
cality. Reason  and  justice  to  these  localities  re- 
quired this.  By  and  by  he  would  submit  a  sepa- 
rate proposition  on  that  subject,  proposed  in  com- 
mittee, to  leave  the  power  to  the  legislature  to 
deposite  it  in  counties,  but  was  overruled. 

Mr.  MANN  said,  that  in  the  examination  of 
the  papers  referred  to  the  committee,  they  had 
found  many  errors  ;  the  report  perhaps,  stated 
generally  all  that  might  be  required  at  this  time, 
but  he  would  remark  that  he  had  taken  up  these 
returns  from  the  several  circuits  separately  and 
discovered  very  many  errors,  which  errors,  have 
been  incorporated  into  the  chancellor's  aggregate 
report,  inadvertently,  no  doubt,  but  it  goes  to 
show  the  Convention  that  there  are  various  and 
numerous  important  defects  in  the  papers  re- 
ferred to  this  committee  for  their  consideration. 
Mr.  MANN  would  cite  one  instance  of  error, 
(which  error  was  incorporated  into  the  chancel- 
lor's aggregate  report)  and  other  similar  ones 
were  apparent.  In  the  examination  and  com- 
paring of  items  he  found  in  one  instance,  in  the 
chancellor's  aggregate  report  a  discrepancy  of 
$3U,OUO,  making  this  report  less  to  this  amount, 
and  this  was  not  the  only  one,  though  of  less 
magnitude,  and  on  the  other  side,  which  con- 
vinced him  that  the  errors  were  not  intentional, 
but  clerical  only.  Mr.  MANN  had  taken  ab- 
stract minutes  from  the  returns  before  the  com- 
mittee and  on  examination  lound  them  generally 
defective  ;  he  could  go  on  at  length,  with  these 


details  which  would  occupy  much  time,  but  he 
would  not  do  so  at  present,  as  he  considered  the 
report  which  he  had  presented  explicit  enough, 
and  contained  perhaps  all  that  it  was  necessary 
to  say  at  present  upon  this  subject.  He  did  not  • 
desire  to  detain  the  Convention  with  these 
lengthy  details,  and  would  not  at  this  time  occu- 
py the  Convention  with  any  further  explanations. 

Mr.  STRONG  moved  lo  print  it.     Carried. 
REPORT  ON  THE  JUDICIARY. 

Mr.  SHAW  offered  two  resolutions,  1st,  that  de- 
bate in  committee  of  the  whole  on  tne  Judiciary 
report  should  terminate  on  Thuisday  at  2  P.  M.— 
2d,  that  when  it  carne  into  the  Convention,  speech- 
es should  be  limiled  to  15  minutes  each. 

Mr.  MANN  doubled  the  propriety  of  any  such 
resolution,  and  hoped  it  would  be  withdrawn. — 
The  labor-saving  resolutions  always  consumed 
much  time.  He  was  sick  of  them. 

Mr.  BURR  should  vote  against  the  resolution. 
At  an  *»arly  period  of  the  session  he  had  united 
with  others  in  an  attempt  to  curtail  debate.  He 
was  impatient  at  the  time  then  wasted.  He  wan 
then  of  opinion,  and  was  so  still,  that  the  weeks 
spent  in  debate  on  the  age  of  the  candidate  for 
Governor,  were  wasted.  But  on  this  important 
subject,  he  wanted  lull  and  free  discussion.  He 
hoped  the  legal  gentlemen  would  bring  all  their 
talent  to  bear  upon  this  question.  He  was  trreaUy 
trrarified  to  he^r  the  able  speeches  delivered  on 
this  subject,  and  hoped  to  hear  more.  He  only 
asked  that  debute  might  be  confined  to  the  com- 
mittee of  the  whole,  and  that  when  we  came  into 
Convention,  we  mi^ht  be  suffered  to  vote  thereon 
without  a  repetition  of  the  speeches. 

Mr.  DUDD  moved  to  lay  the  resolutions  on  the 
table.  Agreed  to. 

THE  JUDICIARY. 

The  unfinished  business  was  ajjain  taken  up. 

The  Convention  asain  went  into  committee  of 
the  whole,  Mr.  CAMBRELENG  in  the  chair,  on 
the  judiciary  reports. 

Mr.  HOFFMAN  :  The  debate  on  this  subject 
has  taken  a  very  wide  range  ;  and  I  have  been 
present  at  as  much  of  it  as  my  health  permits. — 
If  I  should  now  consult  my  own  personal  conve- 
nience, I  would  inflict  on  this  committee  no  ob-  -jit 
servations  of  mine  ;  but  differing  as  I  do,  to  a  very  * 
considerable  extent,  not  only  with  the  reports 
presented  by  the  members  of  the  judiciary  com- 
mittee, but  with  many  of  the  arguments  by  which, 
so  far  as  I  am  able  to  learn,  they  are  supported,  I 
feel  myself  compelled  to  say  something  on  this 
subject.  Its  features  are  so  diversified  and  the 
debate  has  taken  so  wide  a  range,  that  the  diffi- 
culty is  not  in  finding  subjects  on  which  to  speak, 
but  in  selecting  sucli  ones  as  have  some  practical 
application  to  the  subject  itself.  I  cannot,  in  my 
present  state  of  health,  and  at  this  late  day  in 
Convention,  feel  at  liberty  to  discuss  in  any  con- 
siderable decree  the  theories  on  which  a  judicial 
system  should  be  established,  and  I  am  forced  by 
the  state  of  my  health  and  the  period  of  the  ses- 
sion, to  endeavor  to  get  over  it,  at  those  matters 
that  have  some  practical  application  to  the  sub- 
ject. 

I  differ  from  gentlemen  in  considering  the  ju- 
dicial department  to  be  more  important  in  civi- 
lized society  than  the  legislature.  In  the  early 


671 


stage(of  civilisation,  in  which  the  judges  made 
all  the  law,  such  a  rule  would  be  true.  In  tin- 
progress  of  civilisation  in  which  the  judges  are 
,  ivd  to  sneak  the  law  as  it  has  been  made,  in 
my  poor  opinion,  the  organization  p/  the  legisla- 
tive department  is  the  most  important,  because  if 
the  rule  has  not  been  rightly  laid  down,  its  exe- 
cution by  the  judges  may,  and  frequently  must, 
tend  to  do  the  very  mischief,  it  would  reme- 
dy if  the  rule  was  right.  The  committee  are 
not  unaware  that  I  am  not  without  apprehen- 
sion that  in  reorganizing  the  legislative  depart- 
ment we  have  made  it  less  powerful  for  gene- 
ral legislation  than  it  should  be.  If  this  should 
prove  true,  in  the  end,  then,  a  large  share  of  ju- 
dicial legislation  will  be  inevitable,  and  we  must 
endeavor  to  supply  it,  in  the  judicial  system  it- 
self, to  remedy  the  defects  which  we  leave  in  the 
legislature.  I  know  it  is  reversing  the  order  of 
things  in  a  highly  civilized  society,  but  it  is  one 
of  inevitable  necessity,  if  the  judges  should  not 
find  the  rule  fixed  by  society  itself,  that  he  must 
make  the  law.  He  may  and  probably  will  en- 
deavor to  do  it  by  finding  out  what  the  natural 
right  would  be  in  the  case.  He  has  done  it  in 
ages  past,  and  he  must  continue  to  do  so  in  the  fu- 
ture. For  if  you  and  I  are  called  upon  and  must 
decide,  and  can  find  no  rule  established,  where 
shall  we  look  3  We  must  come  to  a  conclusion, 
and  must  decide  by  the  rules  of  natural  right  as 
we  can  best  ascertain  them.  This  is  the  inevita- 
ble necessity,  and  I  feel,  sir,  from  the  feeble  or- 
ganization we  have  given  to  the  Senate  of  the 
State,  we  will  impose  upon  the  judicial  system  a 
large  share  of  judicial  legislation.  I  do  not, 
therefore,  fael  that  we  should  be  the  less  anxious 
to  make  n  judicial  system  strong  and  permanent, 
but  I  beLeve  these  apprehensions  to  be  reasons 
why  we  should  strengthen  its  hands.  I  cannot 
now  undertake,  and  will  not,  in  the  progress 
of  the  observations  I  shall  submit  to  the 
Convention,  to  answer  the  varied  suggestions 
of  gentlemen  involving  the  theory  of  justice.  I 
agree  in  the  opinion  expressed  by  the  orator  near- 
ly twenty-four  hundred  years  ago,  and  read  by 
the  gentleman  from  Essex  (Mr.  SIMMONS.)  I 
know  from  him  what  the  law  is,  and  his  opinion 
stands  recorded  in  the  history  of  nations.  Where 
it  is,  there  is  perpetuity  and  progress.  Where  it 
is  not,  there  is  despotism  and  ruin.  I  am  not 
behind  the  gentleman  from  Essex,  or  any  other 
gentleman  in  the  Convention,  for  a  reverence  for 
law,  but  it  must  be  that  law  which  Is  from  Heav- 
en. It  is  not  your  declaration  on  these  seats — it 
is  not  the  declaration  of  those  who  will  come 
here  after  you,  that  can  make  the  law.  rlhey 
may  find  it,  they  may  declare  it,  but  God  himself 
has  made  it  and  him  only.  Sir,  if  the  judge  is 
not  embued  with  this  sentiment,  he  is  not  tit  to 
sit  in  judgment ;  he  is  an  outlaw  and  oppressor, 
a  ruifiun  and  not  a  judge.  So  too  those  who  come 
after  us,  if  they  cannot  come  up  to  this  opinion 
they  are  not  statesmen,  they  are  not  legislators, 
they  are  ruffians  and  oppressors.  Whether  in  the 
legislature  or  on  the  bench,  the  law  must  be  the 
truth.  It  must  be  right,  it  must  conform  to  the 
nature  of  things,  and  it  is  not  the  will  of  any  man 
or  set  of  men.  I  deny  that  entirely.  1  repudi- 
ate as  detestable,  that  the  majority,  the  will  of 
men  in  any  form  can  constitute  the  law.  The 


majority  searching  the  wisdom  ot  men,  can  only 
find  what  it  is  and  declare  it.  And  if  he  find  ft 
falsely,  like  arsenic  administered  through  mis- 
take it  will  not  produce  benefits  but  certain  death. 
In  any  observation  therefore,  I  have  to  make  up- 
on this  subject,  I  desire  that  they  may  be  received 
and  modified  by  this  fixed  declaration  of  opinion. 
Sir,  we  have  at  this  time  no  courts  at  law  or  in 
equity — they  are  overwhelmed  and  buried.  They 
will  not  deny  you  justice,  but  they  are  not  able 
to  administer  it.  I  had  almost  said,  sir,  that  you 
have  no  law,  but  that  is  not  true.  Law  is  in- 
tended to  enlighten  the  footsteps  of  men,  to  di- 
rect them  whither  they  may  go  and  what  they 
may  do,  and  if  this  be  law,  you  have  none — every 
citizen  must  act  at  his  peril.  Your  laws  are  enu- 
merated in  ten  thousand  volumes.  No  diligence 
on  the  part  of  the  citizen,  his  counselor  the  judge 
will  enable  him  to  find  it  on  the  day  when  he 
must  act.  He  must  act  on  his  peril,  and  day  af- 
ter day,  week  after  week,  month  after  month,  un- 
der the  present  system,  the  counsel  must  sit  look- 
ing for  the  law  and  seeking  to  find  it.  And  un- 
fortunately, in  the  present  state  of  our  judicial 
system,  many  seek  and  cannot  find  it  at  all,  and 
their  cases  remain  unheard  and  undecided.  This 
is  a  state  of  things  which  in  my  opinion  cannot 
last  or  endure.  It  has  been  foreseen;  efforts  have 
been  made  to  avert  these  difficulties,  and  these 
etibrts  have  failed.  What  are  they  ?  Sir,  in  1S41, 
the  gentleman  from  Essex  and  others  here,  occu- 
pying places  as  members  of  the  legislature,  sought 
to  avert  these  difficulties  by  introducing  this  sys- 
tem. They  proposed  to  leave  the  senate  as  part 
of  the  court  for  the  correction  of  errors.  Perhaps 
they  did  not  entirely  approve  of  it,  but  they  sup- 
posed in  all  probability  that  there  would  be  less 
hostility  to  less  change,  and  therefore  they  sub- 
mitted to  it.  They  proposed  to  take  some  of  the 
circuit  judges  and  put  them  in  the  court  of 
chancery,  as  chancellors.  They  proposed  to  re- 
tain the  present  supreme  court  judges  and  to 
make  others  of  the  circuit  judges,  and  put  them 
in  supreme  courts  of  co-ordinate  jurisdiction,  so 
as  in  effect  out  of  the  material  which  then  existed 
in  the  judicial  system,  to  give  you  four  courts  of 
co-ordinate  jurisdiction,  three  of  law  and  one  of 
equity,  with  four- judges  in  each.  It  found  favor 
here  under  the  apprehensions  that  the  existing 
sy&tem  would  fail.  It  found  favor  in  this 
branch  again,  but  it  died  in  the  senate. — 
So  tai  nau  we  got  along  in  1841-2.  Tho  scheme 
wns  r<>  tnke  ca.e  ot  th-  existing  i-fficials  and  per- 
sonel  of  tiie  couris,  on  ihe^round  thai  less  change 
wuu.d  possibly  be  aitended  with  les*  opposition. 
It  introduced  no  new  rule  as  to  the  manner  of 
appointment,  precisely  on  the  same  principle.  Ii 
saved  the  Senate  as  pail  ol  tde  Court  for  the 
Correction  of  Errors,  undoubtedly  on  the  same 
principle.  Sn,  I  yielded  my  reluctant  assent  to 
it,  as  I  presume  others  did,  because  no  tn,ui  could 
look  forward  to  ihis  death  which  \ve  have  reach- 
ed without  dread.  No  man  ot  sagacity  could 
blind  hunsc'lf,  which  would  overtake  us  in  the 
end,  and  it  was  very  natural  in  this  mariner  to  en- 
deavor to  get  lioin  ;t.  Sir,  whether  this  scheme 
received  -diiy  cold  opposition  from  the  judicial 
personages  in  the  State,  or  their  proteges  or  clerks, 
I  do  not  know;  but.  it  failed  in  the  Senate,  not  1 
think  lor  want  of  lime,  to  which  a  great  variety  of 


672 


failures  in  human  history  has  been  attributed,  but 
it  tailed.  What  next?  In  1844  this  subject  came 
up  again.  Said  a  friend  to  me,  if  you  go  to  the 
Supreme  Court,  you  are  told  that  all  the  -difficul- 
ties  exist  in  the  Court  of  Chancery — there  is 
wanted  a  great  additional  force;  but  if  you  go 
over  to  the  Chancellor,  you  will  be  informed  in 
equity  and  conscience,  that  the  great  difficulty  is 
in  the  Supreme  Court,  and  that  they  want  a  great 
additional  force  there.  From  the  character  ot 
Ihe  gentleman,  I  had  no  doubt  that  what  he  said 
to  me  was  true,  and  after  much  consultation  and 
varied  action,  and  getting  the  subject  i'lto  a  com- 
mittee of  conference  between  the  two  houses,  its 
design  was  utterly  changed.  The  proposition  as 
resulting  from  the  conflicting  opinions  was  to  add, 
I  believe,  three  chancellors  and  two  judges  to  the 
Supreme  Court,  and  thus  to  give  us  five  judges,  on 
the  principle  that  fLvfl  men  could  hear  a  cause 
swifter,  and  the  increased  burthen  and  weight 
was  intended,  as  upon  an  inclined  plain  to  aid  ve- 
locity for  the  purpose  of  overcoming  the  draft. — 
The  draft  power  was  in  another  direction,  and  the 
judiciary  system  must  ascend.  It  would  have 
gone  down  more  swiftly  by  adding  to  its  weight, 
but  it  never  would  have  ascended  by  merely 
adding  two  more  judges  to  the  bench.  However, 
it  was  understood  here,  right  or  wrong,  that  this 
was  the  result  of  the  deliberate  wisdom  of  the 
two  Houses,  taking  advice  also,  from  judicial 
experience.  Sir,  I  then  believed,  and  it  seemed 
to  me  that  I  knew,  because  some  times  coming 
events  cast  their  shadows  before,  and  so  plainly 
too,  that  no  man  can  fail  to  read  and  under- 
stand them,  that  such  a  mode  of  improving  our 
judicial  system,  would  prove  a  total  failure. — 
Borne  down  with  a  sense  of  the  danger  that 
hung  over  the  community,  over  the  Judicial  sys- 
tem itself,  and  over  the  very  Constitution  of  so- 
ciety and  its  progess,  1  endeavored  then  to  find 
a  remedy  for  the  mischief,  at  least  for  a  period, 
and  proposed  to  leave  the  Senate  for  the  trial  of 
impeachments,  and  to  separate  it  from  all  other 
judicial  duties,  that  we  might  have  the  benefit 
of  it  as  a  legislative  body.  I  do  not  know  that 
this  was  received  with  a  special  honor  any  where. 
I  think  I  may  say  it  was  not.  I  further  pro- 
posed that  the  state  should  make  sixteen  high 
judicial  officers — that  the  sixteen  sitting  together 
should  constitute  a  court  for  the  correction  of  er- 
rors in  law  and  equity,  and  that  they  should  be 
divided  into  four  courts  of  four  judges  each. — 
And  with  a  view  to  make  the  least  change,  and 
thus  justify  the  least  objection,  yielding  some 
of  my  strong  convictions  to  prevailing  opinions, 
believing*  that  the  truth  would  in  the  end  tri- 
umph, 1  proposed  that  one  of  these  courts  in 
bane  should  have  exclusively  law  jurisdiction, 
with  power  to  issue  writs  of  mandamus  and  quo 
warranto,  and  a  supervision  over  the  inferior 
tribunals — and  that  another  of  these  four  courts 
should  have  exclusively  equity  jurisdiction — that 
the  legislature  should  have  power  to  confer  upon 
the  judges  of  that  court  any  equity  power  whatev- 
er, and  prescribe  by  law  what  questions  heard  be- 
fore the  judge,  should  be  reheard  before  the  court 
ILselt.  Thai  m  regard  lo  Ihe  two  oihei  courts, 
they  should  have  such  juiisdictiun  at 'law  and  in 
equity  as  the  Legislature  should  confer  upon  them. 
1  do  not  know  that  these  propositions  were  regard- 


ed  with  extra  hostility  any  where,  but  they  fell 
dead.  Perhaps  even  now  lew  of  the  members  of 
this  Convention  have  had  the  misfortune  before  to 
have  them  inflicted  upon  them  I  was  driven  to 
present  them  then  a&  an  amendment.  The  Chair 
decided  them  to  be  out  of  order.  I  appealed  from 
his  decision — a  decision  which,  in  my  judgment, 
would  do  more  mischief,  if  it  could  be  followed 
as  a  precedent,  to  the  freedom  of  Legislation  than 
any  other  ever  made  in  these  halls.  It  was  sus- 
tained,— two  judges  and  three  chancellors  were 
already  on  their  way — they  saw  their  end,  and  so 
did  I.  But  by  this  motion,  I  got  tiiy  pioposition 
entered  upon  the  journals.  It  contained  in  it,  I 
admit,  one  great  heresy — it  proposed  that  the 
judges  should  be  elected  by  the  people.  It  might 
have  found  in  that  house  some  thirty  supporters; 
but  the  invariable  conviction  eeeuied  to  be  that 
the  election  of  judges  would  lead  to  certain  ruin. 
Sir,  if  the  election  of  judges  had  stood  upon  the 
ground  that  I  have  heard  alledged  for  it  here,  I 
never  would  have  thought  of  moving  it.  God  for- 
bid that  I  should.  I  would  never  suggest  a  change., 
if  some  strong  and  irrepressible  evil  did  not  re- 
quire it.  I  saw  then — I  think  I  see  now — that 
there  can  be  no  Constitution  in  this  country,  un- 
less the  judges,  or  part  of  them,  can  be  made  to 
depend  for  their  offices  upon  the  people  of  the 
state.  I  looked  in  vain  in  any  stale,  in  our  own 
state,  or  in  the  federal  power,  tor  a  judiciary  that 
had' been,  able  to  stand  by  a  Constitution,  and  to 
defend  it  against  usurpation  ;  for  I  could  find  only 
judges  of  talent  and  integrity  of  the  highest 
order  in  the  discharge  of  their  ordinary  duties. — 
I  could  find  them  appointed  by  power  every 
where.  Power  appointed  such  judges,  and  has 
done  so,  for  a  hundred  years,  in  Great  Britain. — 
Power  has  appointed  such  judges  in  this  State 
from  its  foundation,  and  no  man  has  whispered 
that  they  have  been  deficient  in  integrity  or  pow- 
er ot  intellect.  If  you  want  judges  only  to  this 
extent,  you  have  them  without  difficulty;  you 
need  change  nothing,  you  may  adopt  every  rule 
in  your  present  constitution,  and  you  may  rest  as- 
sured that  your  judges  will  be  men  of  high  cha- 
racter, high  order  of  intellect,  and  brilliant  at- 
tainments on  the  subject  of  jurisprudence,  and 
great  integrity  in  private  life.  But  if  you  want  a 
judge  that  can  stand  by  the  constitution  against 
legislative  usurpation,  you  look  in  vain  for  such 
a  man  appointed  by  power.  And,  sir,  you  have 
no  constitution  here,  if  you  cannot  maintain  your 
written  constitution,  you  can  have  none:  You 
have  no  order  in  society  to  make  a  constitution 
for  you ;  you  must  have  a  constitution  in  writing,, 
or  you  can  have  none ;  and  unless  your  judges  are 
elected  by  the  sovereign  body,  by  the  constitu- 
ent, you  will  look  in  vain  for  judges  than  can 
stand  by  the  constitution  of  the  State  against  the 
encroachments  of  power.  The  federal  court  can 
declare  any  act  passed  in  these  halls,  or  in  any 
State  legislature,  void  and  unconstitutional. — 
They  have  done  it,  and  I  honor  them  for  it.  Sir, 
the  state  courts,  I  have  no  doubt,  could  very  read- 
ily determine  that  a  law  passed  at  town  meetings 
was  unconstitutional  and  void  ;  and  1  believe  they 
have  done  it.  One  of  your  judges  has  manifested 
a  strong  disposition,  though  appointed  by  power, 
to  hold  the  same  rule  in  relation  to  the  legisla- 
ture of  the  State,  But  have  the  Courts  been  able 


673 


i.o  stand   up    in   vindication  of  the   constitution, 
:>t  the  encroachments  of  power  ?     Such   in- 
stances may  exist,  and  may  have  escaped  me ;  but 
.iied  down  by  a  sense  of  the  necessity  of  hav- 
i  court  so  constituted,  that  it  could   perform 
iuty,  and  repress  the  encroachments  of  pow- 
>o  destructive  of  all   private  rights,   I  feel 
myself  compelled  to  insist  upon   the  insertion  in 
any  projet,  of  a  proposition  to  procure  their  elec- 
tion by  the  constituent  body   of  the    State.     I 
know  that  it  is  even  doubtful  whether  you  will 
get  men  of  as  great  ability  as  if  appointed  by  pow- 
er; and   that  under  certain  circumstances,  the 
judge  may  be  driven  from   office  bacause   he  has 
done  his  duty.     I  differ  from  the  gentleman  from 
Albany,  (Mr.  HARRIS)  who  delivered  an  opinion 
the  other  day,  that  notwithstanding  -the  excite- 
ment in  these  river  districts,  the  judge  who  had 
presided  at  trials  arising   out  of  it,  could  be  re- 
elected  to-morrow.     The  gentleman  undoubtedly 
believes  it,  but  I  believe  just  as  strongly  to   the 
contrary.     The  men  with  whose  views  the  judge 
has  come  in  conflict  by  his  duties,  are  as  earnest, 
as  honest,  as  zealous,  and  as  fixed  in  their  con- 
victions, as  the  judge.     One  or  the  other  must  be 
wrong.  If  the  question  be  put  to  the  people,  there 
will  be  no  doubt  of  the  answer.     But  from  the 
locality   where  this  conviction  exists,  I  do  not 
believe,  I  cannot  persuade  myself,  that  the  judge 
would   be   supported.     It  would   be   asking   too 
much  of  men  on  a  technical  point  of  this  kind,  to 
forego  their  strong  and  deep  convictions — and  the 
men  who  have  been  engaged  in  these  disturban- 
ces in  this  excitement — are  probably  too  strongl) 
embued  with  the  conviction  of  the  correction  ol 
their  own  ccnvse,   to  yield  it  readily  at  any  early 
election.     God   knows  that  if  their  own  rule  o 
property  was  to  be  applied  for  a  series  of  years 
by  the  judges,  it  would  not  be  long  before  there 
would  be  nothing  left  for  them  to  contend  for. — 
Then  I  heartily  believe  no  set  of  men  would   be 
more  strongly  disposed  to   change   the  rule,   anc 
bring  it  back  where  the  judge   has  decided  it  to 
be.     It  would  probably  in  a  short  time  result  in 
but  one  judgment — that  if  I  take  property  from 
you,  and  agree  to  pay  you  for  it,  I  cannot  dispute 
your  right  to  pay,  while  I  hold  the  property  from 
you.     But  to  ask  these   men  who   have  formed  ; 
contrary  opinion,   to  reverse  that  opinion,  in 
moment,  is  more  than  I  am  able  to  do,  with  an; 
confidence   or   hope  of  success.     But  if  you  as! 
the  people  of  the  State,  and  call  on  them  to  speal 
through  the  ballot-box  from  one  end  of  the  Stat 
to  the  other,  I  feel  as  strong  a  conviction  as  th 
gentleman  from  Albany  does  in  his  peculiar  opin 
ion,  that  the  voters  of  this  State  would  speak  right 
I  have  no  doubt  of  it.     The  only  fears  of  danger 
in  my  opinion  would  be  in  cases  where  there  wa 
little  or    no  contest,    where  there   was   nothin 
to  excite  the  attention  or  to  call  upon   the   voter 
to    consider    the  matter.     But  although  I  hav 
heard    in    conversation   much  |more    than    ha 
been  said  here,  when  that  proposition  to   elec 
judges  was  brought  into   the  legislature  in  1844 
I   heard  more  perhaps  than   any  other   membe 
heard  of  the  dangers,   the  impropriety  of  such 
course,  and  it  was  very  natural  that  men  shoul 
speak  to  ine  on  the  subject,  and  that  they  shoul 
write  to  me.     Sir,   after  having   heard  them  al 
after  having  considered  the  subject,  I  am  still  ( 


e  opinion  that  although  by  appointment  wa 
lould  get  ability,  learning,  and  high  integrity,} 
nd   be  safe  in  it,  yet  you  cannot  get  judges  t</ 
naintain  the  constitution  against  power,  without'1 
icir  election.     Appointment  in  England  has  for 
lore  than  one  hundred  years  filled  her  four  highest 
ourts  with  men  of  great  ability.     So  the  Presi- 
ent  has  filled  the  federal  courts  with  men  of  de- 
ided  ability,  learning,   and  integrity.     In  this 
tate  too,  the  appointing  power   has   in   all   the 
igher  courts  secured   us  able  judges.     This  is 
rue  in  other  states — but  can  judges  so  appointed 
esist  the  encroachments  of  power  and  maintain 
le  Constitution  ?    I  think  they  cannot — unless 
apported  by  election  from  the  constituent  body, 
firmly  believe  that  all  the  judges,  and  am  en- 
irely  certain  that  half  of  the  judges,  should  be 
lected,  and  that  they  will  be  men  of  eminent 
haracter,  legal  intelligence,   moral  weight,   and 
ble  to  discharge  their  duties ;  but  my  proposition 
hough  it  contemplates  the   least  changes,   only 
asting  off  the  former  motion  of  providing  for  the 
ixisting personel  of  the  courts,  fell  perfectly  dead- 
And  here  in  1846,  we  meet  the  very  difficulty 
accumulated  by  time,  and  the  question   is,  how 
hall  it  be  disposed  of   Sir,  we  may  have  theories 
n  the  subject,  we  may  be  right  or  wrong  in  them, 
ut  we  must  have  courts  that  can  hear  causes, 
and  will  give  judgment,  and  the  machinery  of  so- 
ciety must  and  will  go  on.     It  has  become  a  prac- 
ical  question — we  may  not  be  able  to  attain  what 
we  desire,  but  we  should  make  the  effort  to  at- 
,ain  it.     I  shall  therefore  proceed  to  examine,  as 
veil  as  I  can,  some  parts  of  the  report  of  the  ma- 
ority  in  which  I  concur,  and  from  which  in  part 
!  dissent.     I  have  no  right  sir,  under  the  circum- 
stances, neither  have  I  the  inclination  to  state   at 
any  length,  the  kind  of  judicial  system  I  desire, 
my  opinions  upon  the  subject  have  been   written 
arid  published,  and   to  repeat  and    inflict  them 
nere  would  be  an  unnecessary  act  of  injustice ;  for 
any  one  who  has  desired  to  know  them  has   had 
ample  opportunity  to  find  them.     I  wish  only  to 
say  in  relation  to  them,  that  I  have  neither   seen 
or  heard  here  or  elsewhere,  any  sufficient  reason 
to  change  them.     I  do  not  adhere  so  pertinacious- 
ly to  them  as  to  insist  precisely  upon  the  number 
of  judges  expressed,  but  I  do  beg  leave   to  insist 
in  the  strongest  and  most  distinct  manner,   upon 
all  the  requisites  founded  upon  all  the  reasons  al- 
leged for  them,  as  expressed  in   the  commence- 
ment, in  order  to  make  the  system  safe  and  suc- 
cessful.  Assuming  them  to  be  sufficiently  known. 
I  shall  allude  to  them,  and  apply  them  to  the  re- 
port before  us.     The  first  section  that  meets   us 
in  this  report,  having  disposed  of  that  which   re- 
lates to  the  trial  of  impeachments,  states  the  con- 
stitution of  the  Court  for  the  correction  of  errors, 
at  law  and  in  equity.     Four  of  the   eight  judges 
to  constitute  this  court  are  to  be  elected  by  the 
State,  and  so  far  as  the  name  of  election  goes,  is 
entirely  suited  to  my  own  convictions.     But,  sir, 
they  are  to  lay  idle  around  thecapitol  of  the  state 
for  three-quarters  of  the  whole  year,  if  you  find 
no  business  to  employ  them  except   their  func- 
tions as  a  court  of  errors.     And  I  do  not  suppose 
that  it  is  intended  that  this  court  shall  be  a  mill, 
and   sit  permanently  and  grind   out  law   every 
day   and   hour.     I  suppose   that  if  it  sits  a  few 
months  or  few  weeks  in  the  year,  that  would 

59 


674 


.  be   all  that    any    sound    judicial  system   woul 
require    of  them.     These    four    judges    the 
must    stand  idle    three    quarters    of   the    time 
and  what  will  you  pay  them  ?     Will  it  be  such  a 
to  command  the  highest  order  of  intellect  and  th 
most  extended  knowledge  of  the  law  in  all  its  va 
ried  departments  ?    No,   sir,  you  will,  I  fear,  of 
fer  them  some  paltry  compensation ;  you  canno 
pay  any  other  for  such  a  limited  service.     It  ma) 
be  said  that  these  four  judges  may  be  sent  to  hoi 
circuits.     I   know  that  upon   paper  they  can  be 
but  I   know  that  in  practice  they  cannot. 
would  the  matter  stand  ?     The  judge  of  the  cour 
of  last  resort  goes  down  to  the  county,   tries  \ 
cause  at  the  circuit,  and  decides   upon  the  law 
The  parties  carry  it  to  the  court  in  bane,  made 
up  of  judges  who  do  not  sit  in  the   court  of  las 
resort,  and  if  that  court  in  bane  should  say  theii 
superior  who  held  the  court  was  right,  the  law> 
yers  and  the  world  will  say  that  they  did  not  dare 
to  review  or  reverse  his  decision  :  and  when  th< 
public  declares  that  you  dare  not  reverse  the  de 
cision,  you  cannot  affirm  what  you  had  not  a  righ 
to  reverse.     Taking  from  you  the  moral  liberty 
on  the  one  side,  loses  it  to  you  on  the  other.     If  a 
court  in  bane  affirms  what  a  superior  said  on  the 
circuit,  it  is  evidence  of  sycophancy — if  they  re- 
verse it,  then  the  expected  chastisement  from  the 
superior  is  the  general  supposition,and  can  scarce- 
ly fail  to  embarrass  as  well  the  courts  in  bane  as  in 
appeal.  It  looks  to  me,  that  it  would  never  answer 
for  these  four  men  to  hold  the  circuits,    unless 
they  were  made  equal  to  the  other  judges  by  oblig- 
ing them  also  to  sit  in  bane.     It  would  be  impos- 
sible in   practice  to  employ  them  at  the  circuits 
only.     I   would  not  advise  it,  nor  could  I  in  any 
cheerful  manner  assent  to  it.     And  what  are  the 
other  four  judges  of  the  court  of  last  resort — they 
are  not  state  judges,  but  district  judges,  chosen 
not  by  the   state  but  by  a  district — they  are  not 
chosen  or  appointed  by  the   power  of  the  state. 
The  court  is  one-half  state  without  employment, 
except  during  its   particular  terms;   and  one  half 
district,  not  state,  with  employment  through  the 
year.     In  my  opinion,  sir,  such  a  court  for  the 
correction  of  errors  cannot  get  along,  will  not 
prove  a  working  machine,  cannot  eventually  suc- 
ceed— and  believing  this  whether  right  or  wrong, 
as  the  conviction  upon  my  own   mind  is   strong 
and  deep,  I  am  not  able  to  forego  my  opposition 
to  it. 

Another  subject  in  which  I  unfortunately  dif- 
fer from  the  report  of  the  majority  of  the  com- 
mittee, is  that  while  members  who  support  it  seem 
to  suppose  that  it  has  appointed  supreme  courts, 
in  my  opinion  it  has  appointed  nothing  but  dis- 
trict courts  to  sit  in  bane.  In  some  of  the  schemes 
I  believe  this  is  a  little  different,  but  also  essen- 
tially district  courts  are  distinctly  proposed.  In 
my  opinion,  in  the  majority  report  it  is  distinctly 
realized,  practically  realized.  Take  the  county 
courts  as  an  example,  suppose  you  give  them  ju- 
risdiction over  causes  of  action  arising  elsewhere, 
are  they  not  still  county  courts  ?  You  allow  the 
process  to  run  into  other  counties,  but  they  are 
still  local  courts.  So  here — if  the  eight  districts 
as  such  elect  the  man,  although  the  state  may  pay 
them,  is  he  not  a  district  judge?  I  repeat,  sir, 
that  these  judges  may  be  required  to  go  out  of 
their  districts  and  hold  a  court  in  another  part  of 


the  state.     This,  in  the  opinion  of  some,  appears 
to  be  a  ground  of  preference  and  support,  but  to 
my  mind  it  is  a  ground  of  objection.     It  may  be 
said  that  the  justices  of  the  peace  though  chosen 
by  the  towns,  are  yet  justices  of  the  peace  for  the 
county.     If  I  can  draw  any  conclusion  from  what 
I  have  learned  from  general  remarks  through  the 
state,  a  strong  argument  may   be   drawn  from 
it.     How   often   has  every  member  of  the  Con- 
vention here  heard  men  say,  living  in  one  town, 
and  sued  by   a  person  in   another,— I  know  that 
they  will  give  judgment  against  me,  but  I   will 
appeal   it  and  beat  them.     And  how  often  have 
gentlemen   seen  the  action  suited   to  the  word— 
the  local  court  giving  judgment  against  the  stran- 
ger, and  the  county  court  relieving  him  from  its 
grasp.     There  is  nothing  in  this  error  of  ours  in 
relation  to  the  election  of  county  justices,and  rath- 
er than  extend  the   error  to   any  other  tribunal, 
we  should  seek  to  correct  it  where  it  exists,  and 
make  the  justice   of  the  county  dependent  upon 
the  county,  for  his  existence   and  election.     In- 
deed, sir,  I  hardly  know  how   the  gentleman  in 
New-York  would    feel  pleased  to   see   the  four 
ludges  of  the  5th,  6th,  7th  and  8th  districts  coining 
into  that  city  to  try  causes,  but  I  can  say  how  the 
inhabitants  of  those  districts  would  feel  to  see  the 
ludges  elected  in  the  city  of  of  New-York,  come 
,nto  their  districts.     They  would  feel  as  if,it  was 
ike  any  01  her  disti  ict  court— that  it  was  not  a  Stale 
Court,  a  Supreme   court,  give  it   what  name  you 
may.    And  yet  I  see  that  we  are  inevitably  thrown 
upon  the  question,  and  must   decide  it,   whether 
you  will  make  co-ordinate  State  courts  throughout 
he  State,  of  any  number  that  may  be   necessary, 
:>r  whether  you  will  divide  the  State  into  districts, 
and  make  local  courts.     I  do  not  blame  the  com. 
niltee— I  have  no  right  to  reproach    them— Ihey 
lave  weighed  and  balanced  the  matter,  and  come 
o  the  conclusion   that  the  district  system   would 
>e  better  than  any  other  they  could   adopt.     And 
inler  from  the  arguments,  that  they  suppose  that 
[though  the  judge  is  elected  in  a  district,  he  will 
not   be  a  district  judge,  but  a  State  judge.     Sir, 
uppose   he  holds  that  something  desired    by  the 
ocality  in  which  he  was  elected,  and  enacted   by 
he  Legislature,  is  null  and  void,  will  he  have  his 
e-election   bv  the  State,  which  may  approve    the 
'ecision  of  the  judge,  or  will  he  have'  it   by    the 
.istnct  that  may  disapprove  it.     It  ought  to  satis- 
y  us,  whatever  we  hope  for  that  he  would  be  not 
State   but  a   district  judge.      Were    the  choice 
etween   the   two  systems,  I   must   express  with 
erfect   frankness  my  decided  pieference  for  any 
umber  of  co  ordinate  courts  for  the  State,  to  any 
istrict   system  at  this  time,  and  in    our    present 
ondition.      When  our  population  and  progress  in 
ivilization  shall  have  spread  over  every   quarter, 
ities  and  villages,  and  hamle  s;   engaged  in  eve- 
y  variety  of  interest,   arts  and    letters,  strongly 
manufacturing,  strongly  mercantile   and   strongly 
gricltural,   so  that   cutting  the  State  into  varied 
istricts,  which  may  notwithstanding,  in   all   its 
moral  and  social  elements,  be  very  similar  to  any 
ther,  then  and  not  till  then  would  I  consent  that 
he  State  system  should  be  yielded  for  the  distuct 
nd  local  system.     Such  in  my   judgment   is   not 
ovv  the  case.     If  your  judges   are  elected   from 
istricts,  they  will  not  be  elected  to   be   qualified 
)r  holding  the  courts  any  and  every  where  in  the 


675 


State.  In  the  minds  of  the  persons  who  make  the 
nomination,  in  the  minds  of  the  voters,  the  mind  o 
the  aspirating  power  to  a  judgeship,all  his  friends 
and  supporters  will  be  able  to  say  that  he  will  bt 
able — satisfying  themselves  and*  believing  he  is 
equal — to  the  moderate  power  necessary  to  adminis- 
ter justice  in  the  district-  They  will  not  believe 
they  will  not  think  it  necessary  to  believe  that  he 
is  equal  to  a  perfect  administration  of  justice,  ir 
any  place  and  in  any  case.  No,  sir,  your  judge  will 
sink  down  to  a  district  man  sufficient  and  eq'ial  to 
do  the  little  business  his  district  may  requite 
hut  he  will  not  be  any  State  judge,  equal  in  pow- 
er, intellect,  knowledge  and  character  to  the  per- 
formance of  the  highest  judicial  functions  through- 
out the  State.  I  prefer  four  or  six  co-ordinate 
courts  of  lour  judges  each,  cutting  the  State 
into  districts,  as  I  think  this  report  does,  and  cer- 
tainly it  allows  the  Legislature  so  to  do  it ;  and  I 
am  disposed  to  assent  lo  no  other  form.  It  is  not 
forme  to  deny  that  the  report  which  I  had  the 
misfortune  to  make,  and  which  was  lost  in  1844; 
and  which  expresses  jn  some  tolerable  degree  the 
opinion  I  still  entertain — hag  in  it  errors  and  de- 
fects, which  a,ny  one  may  discover  and  supply. — 
How  then  do  I  now  think  the  courts  should  be 
constituted?  I  believe  that  sixteen  high  judicial 
officers  are  enough,  although  I  will  not  insist  on 
that  number,  but  will  cheerfully  go  for  twenty,  or 
even  twenty. four.  If  you  get  the  twenty,  you  will 
probably  be  obliged  to  make  the  full  term  ten 
years,  and  lhat  is  objectionable  to  me.  If  sixteen, 
eight  will  be  the  proper  term,  and  if  twenty-four, 
it  would  still  make  the  term  eight  years.  I  do  not 
quarrel  with  tiie  report  on  account  of  the  number, 
I  only  remark  this,  that  in  my  judgment,  the  mo- 
ment the  ntunbe,'  exceeds  what  can  easily  and  pro- 
perly constitute  a  court  of  errors— that  moment 
you  enfeeble  the  state  system,  instead  of  strength, 
ening  it — for  i  contend  that  whoever  is  a  state 
judge,  should  sit  in  last  resort,  should  sit  in  bane, 
should  sit  at  the  circuit,  and  no  man  should  be 
allowed  to  sit  in  either  of  these  places,  unless 
he  does  fairly  and  in  a  working  manner,  s-rt  in 


If  he  does  this,  his  weight  of  charac- 
and  moral,  his    deserved    weight  of 


them  all. 
ter,  legal 

character,  when  he  comes  to  that  court  makes 
his  decision  satisfactory  to  a  vast  extent,  but  if 
you  send  to  that  court  men  who  do  not  sit  in 
bane,  and  know  the  whole  law  by  hearing  it 
there,  who  do  not  sit  in  last  resort  and  hear  it 
argued  there — if  you  send  men  who  do  not  sit 
in  these  two  places  to  hold  circuit  courts,  neither 
counsel  or  client  will  respect  his  adverse  decis- 
ion. You  will  say,  and  say  rightly,  he  is  a  mere 
district  judge,  he  never  sits  in  bane,  he  has  no 
better  opportunity  of  knowing  the  law  than  I 
have,  arid  he  must  learn  the  law  by  reading  only 
the  same  books  that  my  counsel  reads,  and  he 
has  vastly  less  time  to  do  it  than  my  counsel.— 
It  is  one  of  the  misfortunes  of  the  present  system, 
that  it  invites  appeals  and  writs  of  error.  If 
your  judge  in  bane  is  not  known  to  be  a  judge  of 
the  court  of  last  resort,  if  all  men  do  not  see  and 
feel  it,  they  will  not  respect  the  judgment  of  the 
court  in  bane.  They  will  go  up  to  your  court  of 
last  resort,  whatever  it  may  be,  and  overwhelm 
and  burthen  it  with  their  discontents.  To  avoid 
tins,  your  man  who  comes  to  hold  the  circuit 
must  be  known  and  felt  to  be  an  able  jud"-e  in 


bane,    and    in    court  of  last    resort.      This    ig 
the  only  way   in   which  you   can  make   the  ad- 
ministration  of  justice  satisfactory  and  respect- 
able, in  my  opinion.   I  would  yield  to  the  twenty 
judges,  cheerfully  to  twenty-four,  though  I  be- 
lieve that  sixteen  would  be  enough.     I  will   not 
dwell  on  the  arrangements  which  in  rny  opinion 
are  necessary,'!  will  merely  say  that  the  judge 
should  at  least  once  in  each  year  be  compelled  to 
hold  a  share  of  the  circuits  sitting  alone,  without 
an  associate.     I  know  how  a  stupid  man,  preserv- 
ing a  mysterious  silence,  supported  by  able  asso- 
ciates, can  look  wise  upon  t/ie  bench.     I  desire 
to  see  him  put  upon  trial — let  him  sit  once  a  year 
in  the  circuit  alone,  with  the  whole  public  to  be 
his  judge — let  them  see  and  know  who  and  what 
he  is — and  if  the  judge  will  not  do  this,  let  him 
be  removed.     Then,  whenever  he  is  nominated, 
and  becomes  a  candidate  for  one  of  these  places, 
he  will  know  and  feel — his  friends  will  know  and 
feel — the  voters  will  know  and  feel — that  sitting 
upon   the   bench   unsupported  by   an   associate, 
through  every  year,  in  all  places  of  the  State,  in 
the  fields,  in  the  hamlets,  m  the  villages,  and  in 
the  cities,  he  must  meet  the  uncounted  thousands 
of  men — must  speak  justice  and  the  truth — must 
act  where  he  can  have  no  help— he  must  be  a  liv- 
ing man.     If  there  be  any  thing  in  human  affairs 
that  will  secure  you  a  good  nomination,   and  a 
good  judge,  it  will  be  by  putting  him  in  this  se- 
vere position  of  trial;  and  I  never  will  consent — 
I  may  be  forced  to  submit  to  it — that  any  man 
shall    sit    in    bane   or    last    resort,    unless    he 
has    passed    safely     and    successfully     through 
this    ordeal.      I    know    that    members    of   the 
bar  cannot,    ought    not,    to    speak    too    freely 
of  the   judge.      My    counsel    may    be    willing 
to  hazard   his  own  bread,   but  he  has  no  right 
:o  hazard  my  case,  and  if  he  speaks  too  freely  of 
:he  character  of  the  judge,  he  does  put  my  rights 
"n  jeopardy.     But  when  thousands   are  gathered 
at  the  court  house,  there  will  be  men  fearing  God 
and  God  only,  who  will  speak  of  the  judge  free- 
y,  of  his  capacity,  of  his  ability,  and   of  his  deci- 
sions.    They  will  speak  and  will  be  heard.     Let 
the  judge  therefore  hold  his  share  of  the  circuits, 
make  it  incumbent  on  him,  and  when  he  fails  to 
do  it,  let  him  give  place  to  a  better  man. 
Sir,  I  find  this  exercise  of  speaking  rather  severe, 
md  therefore  almost  repent  that  I  have  engaged 
n  it,  and  must  contrive  some  method  of  abridge- 
nent  by  which  I  shall  bring  myself  to  a  close. — 
Perhaps  I  have  said  enough  upon  this  subject  to 
ndicate  my  own  conviction,  and  that  is  all  I  can 
desire.     I  feel  that  every  man  here  must  have  as 
trong  a  solicitude  for  a  good  judicial  system  as  I 
can  have,  although  he  may  not  have  been  so  unfor- 
tunate as  to  have  been  an  actor  in  the  past.  Hav- 
ing seen  what  the  past  has  been,   it  seems  to  me 
that  we  ought  either  to  have  co-ordinate  courts  to 
do  the  business  or  district  courts.  I  have  delivered 
my  mind  sufficiently  on  the   subject,   and  given 
my  decided  preference  for  the  first.  I  know  from 
the  past,  from  all  that  exists,  that  if  there  was  re- 
quired only  one  or  two  co-ordinate  courts  it  would 
be  agreed  to   without  difficulty ;  but  gentlemen 
seem  to  fear  when  we  come  to  make  four  or  five. 
I  can  yield   on  this  subject  a  great  deal,   I   can 
yield  as  I  did  in  1844— to  make  one  of  these  co- 
ordinate courts  exclusively  a  court  of  law,  and  one 


676 


exclusively  a  court  of  equity,  but  in  yielding  this, 
I  cannot  yield  the  convictio'n  strong  and  abiding, 
that  whether  chancellor  or  law  judge,  the  ordeal 
of  which  I  have  spoken  at  the  circuit,  is  one 
through  which  he  should  pass. 

We  come  then,  sir,  to  another  question 
presented  in  this  report,  on  which  we  have 
had  a  debate,  extremely  difficult  and  technical, 
and  that  is  shall  we  join  in  the  same  tribunal 
the  power  to  administer  the  remedies  at  law  and 
in  equity.  Gentlemen  objected  that  this  would 
make  the  forms  at  law  and  in  equity  an  amalga- 
mated mass.  Sir,  the  very  use  of  such  a  figure 
of  speech,  shows  that  no  such  process  is  in  the 
mind.  Men  do  not  use  a  figure  of  speech  in  a 
matter  of  this  sort,  where  the  mind  sees  with  any 
clearness  what  it  would  do.  It  is  a  figure  of 
speech  to  alarm,  to  excite  fear,  and  grows  out  of 
fear  and  a  troubled  mind.  It  is  not  the  result  of 
a  clear  distinct  view,  or  strong  and  well  directed 
judgment  on  the  subject.  I  therefore  go  back  to 
the  question  made  by  the  report,  and  avow  that  in 
my  own  conviction,  the  report  upon  the  subject  is 
^entirely  right,  that  the  same  judicial  tribunal  shall 
be  vested  with  the  power  to  administer  the  reme- 
dies known  to  us  as  common  law  remedies,where 
proper;  and  equity  remedies  where  they  are  de- 
sirable. I  may  not  follow  gentlemen  in  their 
history  upon  this  subject,  although  I  differ  with 
them  to  a  very  considerable  degree.  Why  may 
not  the  judge  have  the  power  to  administer  to 
the  party,  what  in  his  case  the  law  determines  to 
be  a  proper  and  necessary  remedy  ?  Why  should 
he  be  obliged,  if  he  wants  one  remedy,  to  go  to 
one  court,^and  if  he  wants  another  to  go  into  an- 
other? The  subject  matter  is  the  same.  Well  sir, 
the  best  argument  I  have  heard,  and  I  was  glad  to 
hear  it,  was  from  the  gentleman  from  Essex  as  to 
the  saving  of  labor,  facility  and  despatch  in  bus- 
iness. If  I  supposed  it  could  have  that  effect,  I 
should  extremely  regret  it,  and  would  go  with 
him  to  keep  them  separate,  but  then  we  should 
meet  a  double  barrier  in  the  way,  because  in 
many  instances  we  should  find  that  these  two 
classes  of  courts  have  concurrent  jurisdiction, 
and  we  should  frequently  be  embarrassed  to  know 
in  which  to  proceed.  When  we  go  into  one 
court,  we  should  be  told — gentlemen  you  are  un- 
der a  mistake,  you  should  have  gone  the  other 
road,  and  when  we  travelled  a  little  on  the  other 
road;  we  are  liable  again  to  be  advised  that  we 
were  in  error.  I  have  listened  to  the  gentleman's 
argument  and  his  idea  of  the  great  benefit  that 
would  be  attained  in  the  saving  of  labor,  but  I 
can  see  nothing  in  it,  nothing  so  great  as  to 
counterbalance  the  evil  that  would  grow  out  of 
it.  In  the  matter  of  reforming  the  practice  and 
the  pleadings  of  the  courts  and  the  body  of  the 
law  itself,  I  do  not  believe  that  in  my  own  mind.  I 
go  farther  than  other  gentlemen  who  while  they 
express  their  wishes  seem  determined  not  to  move. 
If  the  gentleman  from  Essex,  with  a  commission 
to  aid  him,  should  reform  the  pleadings  and  prac- 
tice in  equity — and  if  some  gentleman  equally  ob- 
stinate to  keep  the  jurisdictions  of  the  two  courts 
separate,  should  be  called  upon  with  an  able  com- 
mission to  aid  him,  to  reform  the  pleadings  and 
practice  at  law,  when  they  came  to  be  compared 
it  could  not  fail  but  that  they  would  have  fused 
and  assimilated  all  the  cases  in  which  these  two 


courts  have  concurrent  jurisdiction.  For  each  of 
them  would  inevitably  seek  the  best  cours. 
proceeding  and  pleading,  and  each  adopting  the  ' 
best  course,  their  two  courses,  so  far  as  the  courts 
have  concurrent  juris'diction,would  almost  inevit- 
ably be  precisely  similar,  and  thus  would  sweep 
away  a  very  large  mass  of  the  jurisdiction  claim- 
ed either  for  one  or  the  other.  So  too  they  would 
fuse  and-let  in  any  defence  which  is  now  allowed 
in  one  court  and  denied  in  the  other.  I  desire 
nothing  impossible  in  this  matter,  I  ask  that 
the  pleadings  at  law  may  be  so  reformed  as 
to  be  intelligible,  I  do  not  go  farther  than  the 
gentleman  from  Columbia.  I  ask  that  they  may 
give  the  information  they  deem  proper  to  give. — 
Do  this  and  I  am  satisfied.  In  relation  to  plead- 
ings in  equity,  I  a?k  that  they  may  be  reformed  on 
precisely  the  same  principle — that  the  party  may 
state  his  case — that  the  defendant  may  answer 
and  state  his  own  case.  I  desire  that  in  either  of 
these  classes  of  pleadings,  where  a  fact  is  alleged, 
a  party  may  have  the  opportunity  of  saying  that 
he  cannot  answer  as  to  that,because  he  is  not  in- 
formed. '"I  desire  nothing  impossible  throughout 
the  whole  of  it,  and  when  the  gentleman  from 
Essex  comes  to  a  case  in  equity,  the  argument 
may  be  made  to  conform  to  the  ordinary  proceed- 
ings of  law,  or  any  course  of  proceeding  that  will 
enable  him  the  best  to  secure  his  ends.  For 
whatever  the  form  of  action  may  be,  whatever  the 
tribunal  in  which  it  is  pursued,  or  whatever  the 
course  of  pleading  or  practice  adopted,  I  only 
desire  that  it  may  be  the  best  that  human  inge- 
nuity'can  devise,  to  effect  the  best  remedy  that 
human  wisdom  can  suggest.  I  care  not  whether 
it  is  borrowed  from  the  Roman  or  the  civil  law  on 
the  one  side,  or  from  the  German  nation  or  the 
common  law  on  the  other.  And  I  believe  that 
from  the  expression  of  gentlemen  here^this  is  the 
sum  and  substance  of  their  own  desires  of  reform. 
Has  there  ever  been  a  day  or  a  time  when  it  was. 
proposed  to  make  a  change  that  somebody  was 
not  alarmed?— and  I  do  not  say  that  it  is  not  right 
that  they  should  be.  When  a  late  act  of  parlia- 
ment in  Great  Britain  swept  away  fifty-four  writs 
at  one  breath,  do  you  believe  that  there  were  not 
alarm  and  terror  through  the  whole  profession  in 
that  kingdom — but  it  seems  to  be  admitted  that 
the  British  Constitution  had  gone  along  very  well 
without  those  fifty-four  writs.  And  these  changes- 
in  law  and  equity  have  been  going  on.  Why  no- 
thing was  more  alarming  than  the  rule  set  up  in 
equity ,that  where  a  man  agreed  that  if  he  did  not 
pay  a  thousand  dollars  on  a  certain  day,  that  he 
would  pay  two  on  his  penal  bond,  the  chancellor 
would  relieve  against  this  agreed  penalty.  The 
judges  of  the  courts  of  law  resisted  it,  as  a  very 
great  and  high-handed  act  of  injustice.  Why  the 
man  agreed  that  if  he  did  not  pay  the  thousand 
dollars  on  a  certain  day  he  would  pay  two;  and  he 
should  be  held  to  his  bond,  and  he  issued  execu. 
tion  accordingly.  The  court  of  chancery  thought 
not,  and  said,  sir,  you  shall  not  have  your  execu- 
tion for  any  more  than  the  money  actually  due 
and  interest.  Parliament  came  to  the  aid  of  the 
suitor  and  ordered  that  the  real  debt  and  interest 
or  ascertained  damage  only  should  be  levied — and 
the  opposite  opinions  were  fused  into  a  uniform 
rule ;  and  I  have  not  heard  that  anybody  was 
alarmed  because  the  two  jurisdictions  were  fused 


677 


in  that  instance.  Take  the  case  mentioned  by 
the  gentleman  1'rom  Essex.  His  contractor,  who, 
notwithstanding  he  received  a  notice  not  to  go 
on,  notwithstanding  he  was  offered  all  that 
was  due  to  him  and  all  that  he  could  have 
made  if  he  finished  his  labor,  went  on  and 
brought  a  suit  at  law  and  recovered,  and  then, 
UK-  Chancellor  and  the  court  of  last  resort  with 
him,  agreed  that  it  was  highly  unjust  after  he  had 
this  notice,  after  these,  oilers  had  been  made  to 
him,  for  him  to  go  on  and  undertake  in  this  way 
to  get  money  out  of  the  defendant;  and  relief  was 
decreed  on  a  bill  in  equity.  Now  I  ask  the  gen- 
tleman whether  it  would  have  shaken  the  con- 
stitution of  civilized  society,  if  the  law  had 
wisely  said,  the  defendant  may  make  the  de- 
fence in  a  court  of  law,  he  may  allege  and 
prove  that  he  offered  pay,  not  only  for  all 
that  was  due,  but  all  that  could  have  been 
made  by  the  process.  I  say  if  legislation  had 
thought  proper  to  say  that  this  matter  might  be 
set  up  as  a  defence, would  it  have  ruined  the  world, 
would  such  a  fusion  of  jurisdiction  have  brought 
on  any  possible  mischief.  It  would  have  at  least 
saved  a  long  vexatious  suit  in  equity,  to  get  rid 
of  an  unjust  judgment  at  law.  It  is  now  an  ad- 
mitted rule  in  equity  that  in  a  mere  civil  suit  the 
party  may  be  examined  as  a  witness  against  him- 
self, but  in  a  peculiar  manner  by  bill,  and  if  the 
defendant  wishes  the  complainant's  answer  as 
evidence,  he  must  file  a  cross  bill  to  get  it. — 
Now  I  ask  if  the  legislature  should  bring  this 
rule  into  the  courts  of  law  and  equity,  and  say 
that  either  party  may  call  upon  the  other,  up- 
on the  same  principle,  to  give  evidence  on  an 
issue  or  tn-il  at  law  or  inequity.  1  ask  wheth- 
er this  fusion  would  alarm  or  endanger  the 
rights  o  pioperty?  It  would  render  useless 
a  great  many  torms  now  necessary  in  equity,  and 
a  great  many  suits  ;  and  would  enable  the  courts 
to  do  strict  justice  in  many  cases  in  which  they 
now  cannot.  I  arn  not  so  easily  to  be  alarmed. — 
Gentlemen  seem  to  suppose  that  because  these  ju- 
risdictions have  got  separate,  they  must  remain 
so.  Sir,  I  believe  the  history  of  the  subject  would 
show  the  very  contrary.  This  equity  law  is  en- 
tirely the  Roman  civil  law,  i  til  used  into  the  com- 
mon law  of  Greai  Britain  ;aiid  what  was  that  law  ? 
It  was  not,  as  has  been  supposed,  the  law  of  a 
despot.  Nosir,  it  was  the  judge  made  law  of  tree 
Rome,  matured  and  improved  by  the  judges  arid 
priest^,  for  long  centuries,  and  copied  again  and 
again  into  the  proctor's  book, and  digits  and  codes 
of  the  lawyers,  and  then  collected  by  the  impe- 
rial commission  into  a  code.  It  was  not  made, 
but  gathered  together  by  a  despot,  if  you  choose  to 
call  him  so,  thirteen  hundred  years  after.  It  had 
been  brought  to  maturity  in  a  civilized  country. 
It  was  not  a  savage  code.  No,  sir  j  it  was  a  high- 
ly civilized  body  of  law,  acknowledging  the  rights 
of  property  with  a  distinctness,  closeness  and  ac- 
curacy that  has  never  been  excelled,  if  it  has  been 
equalled.  And  what  was  the  boasted  common 
Ja.\  ?  If  any  part  of  the  judicial  proceedings  of 
Rome  went  into  Great  Britain, it  died  with  the  R  •- 
man  there.  But  when  ihe  Anglo,  the  Dane,  arid 
Norinan  had  pressed  his  hostile  foot  upon  the  soil 
of  Britain,  estabhsning  a  military  rule,  and  the 
feudal  system  in  the  end,  and  when  sucieiy  had 
giown  somewhat  out  of  de&potisui,  it  availed  ltddf 


of  the  common  law.  And  what  is  it?  Born  in 
battle,  civil  broil  and  conflict,  it  was  like  itself. 
It  had  continued  in  an  emergency  to  stand  linn 
by  personal  rights,  and  had  called  the  trial  by  jury 
into  existence.  By  this  means  the  law  became 
separated,  from  the  fact;  the  former  to  be  declared 
by  the  permanent  judges,  and  the  latter  to  be  found 
by  the  jurors.  A  few  days  since  I  expressed  the 
opinion  that  these  trials  by  jury  were  the'  great 
school  of  civil  wisdom  for  our  people.  It  is  more. 
The  judge  is  obliged  to  explain  the  law  to  twelve 
sensible  men.  He  is  therefore  obliged  to  state 
the  law  in  a  manner  so  plain  that  it  may  be  un- 
derstood by  the  body  of  the  citizens.  The  courts 
have  been  thus  obliged,  as  far  as  practica- 
ble, to  make  the  law  plain  and  intelligible. — 
I  desire  to  retain  the  jury  and  every  just  remedy 
of  the  common  law.  When  the  remedy  is  just, 
necessary  and  proper,  retain  it.  I  desire  to  retain 
the  just  enlightened  liberalty  of  the  equity  law  and 
all  its  valuable  remedies,  and  as  far  as  practica- 
ble apply  them  by  means  of  the  common  law  ma- 
chinery— and  where,  from  the  nature  of  the  sub- 
jeect,  this  can  not  be  done,  we  must  employ  these 
remedies  by  the  means  familiar  in  the  civil  law. 
With  this  viewr  of  the  subject,  no  man  will  ac- 
cuse me  of  desiring  to  get  rid  of  the  many  excel- 
lent remedies  this  highly  civilized  law  offered. — 
No  civilized  society  can  exist  without  these  reme- 
dies, and  if  you  repeal  them  to-day,  and  declare 
that  they  shall  not  exist,  they  will  grow  up  in 
despite  of  your  declaration.  Men  must  have 
remedies  to  suit  their  condition — if  those  that  you 
give  them  do  not,  they  never  will  and  never  can 
remain  quiet.  Year  after  year  of  turmoil  and 
trouble  must  succeed — the  agitation  may  shake 
the  government  to  its  foundation,  but  right,under 
God,  must  at  last  be  brought  in  and  offered  to 
men.  The  reason  is  obvious;  without  it  there 
can  be  no  justice,  and  man  must  struggle  for  a 
miserable  existence.  Without  justice  there  can 
be  only  fraud  and  violence.  There  can  be  neith- 
er peace  or  progress — and  it  will  never  answer 
for  government  to  say — take  these  poor  inefficient 
unsatisfactory  remedies,  this  distress,  insult  and 
abuse,  under  the  false  pretence  of  securing  men 
in  their  rights.  In  God's  name,then,  why  should 
we  cling  to  the  bad,  and  refuse  to  adopt  the  good 
If  the  common  law  in  certain  cases  offers  a  better 
remedy  than  any  wre  can  form  or  devise,  why  un- 
der heaven  should  we  cast  it  off.  There  is  no 
man  here  who  desires,  no  man  elsewhere  who 
can  desire  it.  Whatever  he  may  say — the  high- 
wayman himself,  if  not  before,  yet  after  he  has 
gathered  his  spoils,  is  obliged  to  call  on  the  arm 
of  justice  to  defend  him  in  his  possession.  So 
civilized  man  in  every  relation  in  which  he  is 
placed,  is  obliged  to  desire  and  ask  for  justice  at 
the  hands  of  the  government — will  have  it,  and 
will  in  the  end  command  it.  Men  must  live  in 
safety  and  peace.  They  must  have  remedies,  they 
will  have  them — and  they  will  have  the  best  that 
their  wisdom  can  devise,  and  if  they  find  them 
in  the  Roman  law,  in  the  German  law,  or  in  any 
other,  they  will  have  them,  they  must  have  them. 
I  do  not  desire  to  destroy,  I  ask  to  see  improve- 
ment. I  might  make  the  same  remarks  of  the 
body  of  the  law  itself,  but  I  will  not.  There  is 
nothing  in  it  that  is  right  and  good,  that  1  desire 
to  see  annihiliated, — nothing  in  it  that  is  bad  or 


678 


evil,  that  any  one  here  can  desire  to  see  contin- 
ued. And  why  should  we  not  be  filled  with 
alarm  and  terror,  because  an  effort  is  made  to  get 
rid  of  what  cannot  well  be  endured.  Sir,  we  hold 
back  too  long.  -.Is  it  not  certain,  that  these  very 
difficulties  which  agitate  us  here  now,  if  the 
remedy  offered  in  1841  and  1844,  had  been  adopt- 
ed, would  have  been  removed  in  part  at  least, 
and  we  largely  relieved  from  our  present  evils  ? 
Sir,  we  submit  to  a  long  holding  to  errors  after 
they  are  admitted,  and  asking  society  to  bear  with 
them  too  long.  But  men  will  not  be  quiet  while 
they  are  oppressed — it  matters  not  whether  from 
design  or  error.  Arsenic  taken,  will  produce  cer- 
tain death,  though  administered  by  a  friend.  In 
looking  over  this  question  and  hearing  the  argu- 
ments, I  have  seen  nothing  to  alarm  me.  Some 
individuals  wish  to  go  farfher  than  others,  and  it 
seemed  to  me  after  all.that  my  friend  from  Essex 
is  just  as  liable  to  be  hung  for  his  seditious  opin- 
ions, as  I  am.  My  friend  from  Columbia  wants 
some  reform  also.  It  goes  well  enough  until  you 
touch  me;  avoid  that  and  you  may  reform  any  body 
else,  but  touch  me  and  then  war  to  the  knife,  ft 
seems  to  me  that  this  matter  of  reform  in  relation 
to  the  judicial  system,  lies  within  a  very  narrow 
compass.  The  common  law  and  its  form  of  pro- 
ceedings,—and  1  put  no  more  trust  in  its  forms 
than  I  do  in  any  other  mere  form — are  admirably 
suited  to  administer  justice,  where  a  cer- 
tain sum  of  money,  or  piece  of  property,  or 
both  united,  does  really  constitute  a  just  reme- 
dy— but  go  beyond  that  one  step  and  the  ac- 
tion at  the  common  law  will  not  go  with  you. 
If  any  thing  is  involved  but  a  certain  sum  of 
money ,or  a  certain  piece  of  property,it  would  say 
to  you,  we  cannot  understand  you.  It  has  been 
taught  many  things  by  the  courts  of  equity,  and 
it  has  been  taught  many  by  legislation,  and  it 
has  learned  and  I  think  will  yet  learn  in  various 
ways,  to  give  a  man  some  sort  of  justice  that  does 
not  consist  merely  in  a  horse  or  in  dollars  and 
cents.  I  think  it  can.  I  do  not  believe  old  and 
unfair  as  it  looks,it  has  so  lost  its  vigor  and  force, 
as  not  to  be  able  to  grapple  with  these  reforms.  It 
has  sloughed  off  fifty  of  its  heads,  I  might  say  hun- 
dreds, and  was  it  Jess  strong  for  the  change.  I 
like  its  mode  of  trial,  its  jury,  and  any  improve- 
ment of  it,  that  is  practicable.  In  speaking  a  few 
days  since,  I  regarded  the  jury  as  the  highest 
school  ot  civil  wisdom  arnon°-  us.  I  go  one  step 
further  When  the  judge  is  obliged  to  make  his 
law  so  that  it  will  be  understood  by  twelve  men, 
there  is  some  hope  at  least,  that  he  would  make 
it  plain  enough  to  be  understood  by  those  who  are 
affected  by  it.  But  if  the  judge  is  left  at  liberty 
to  make  the  law  plainly  to  himself,  in  his  cham- 
ber, his  metaphysical  distinctions,  to  his  hair- 
splitting process,  this  would  uever  be  secur- 
ed. But  if  he  was  obliged  to  submit  the  law 
in  these  elaborate  classes  of  chancery  suits, 
in  a  mode  of  trial  known  to  the  common  law — 
to  make  his  law  understood  by  twelve  men, 
and  possibly  by  others — my  word  for  it,  if  you 
will  compel  the  judge  to  go  and  hold  his  share  of 
the  circuits,  notwithstanding  the  number  of  par- 
ties sometimes  concerned  in  a  chancery  suit,  not- 
withstanding the  complicated  equity,  if  you  will 
compel  the  Chancellors  to  go  and  hold  the  courts, 
thoy  will  soon  devise  modes  of  pleading  and 


practice,  by  which  the  disputed  facts  in  a  chance- 
ry suit  can  be  submitted  to  a  jury.  You  have 
tried  by  law  to  make  them  do  it,  but  you  have 
not  succeeded.  But  send  him  to  the  circuits, and 
compel  him  there  to  try  causes  in  the  courts  of 
law  by  a  jury,  and  he  will  soon  find  some  mode 
regulating  the  rules  of  pleadings  in  equity  by 
which  nine-tenths  of  the  chancery  causes  will  be 
tried  by  juries  as  common  law  issues  are;  and  as 
to  the  other  tenth,  I  do  not  see  the  reason  why 
they  should  be  any  more  complicated  or  dif- 
ficult than  many  of  the  actions  of  assumpsit. — 
The  difficulty  is  that  the  Chancellor  can  set  at 
chambers — he  is  not  obliged  to  go  to  the  circuit — 
he  can  leave  the  issue  to  be  joined  by  the  present 
general  replication,  and  can  send  the  matter  to  an 
Examiner.  Then  he  can  get  the  bundle  of  pa- 
pers, and  he  can  read  them  over  until  his  room  is 
rilled  and  his  court  becomes  a  mummery,  buried 
in  unfinished  business.  But  send  him  to  the  circuit, 
tell  him  to  hold  his  share  of  the  courts,  and  I 
venture  nothing  in  the  declaration  that  he  will 
invent  modes  by  which  nine-tenlhs  of  the  chan- 
cery causes  will  be  decided  in  a  few  hours,  as  to 
the  disputed  facts,  by  a  jury  I  have  another  rea- 
son why  these  two  jurisdictions  in  our  state,  must 
and  should  be  blended  in  the  same  courts.  If  you 
will  keep  them  separate  then  I  submit  that  you 
must  have  two  courts  for  the  correction  of  errors 
— a  double  spotted,  double  headed  judiciary. — 
That  I  know  you  cannot  agree  to.  How  then  will 
it  stand?  If  you  do  not  allow  the  law  judges  to  have 
some  matters  of  practice  in  what  you  call  the 
equity  cases,  how  can  your  law  judges  act  effi- 
ciently and  safely  as  a  court  to  correct  the  errors 
of  the  equity  tribunals.  And  are  equity  judges 
alone  to  be  substituted  to  correct  errors  in  courts 
of  law,  where  they  do  not  practice  in  the  law 
courts  ?  I  desire  to  avoid  such  an  absurdity.  It 
seems  to  me  that  the  two  remedies  may  well  be 
administered  in  the  same  tribunals,  and  that  the 
judges  will  thus  be  qualified  to  sit  in  the  court  of 
errors.  I  do  not  see  because  the  remedies  are 
difierent,  the  necessity  of  having  a  different  tribu- 
nal for  each.  It  appears  to  me~a  much  more  na- 
tural  rule  to  divide  not  by  law  and  equity,  but  by 
actions  for  injuries  on  the  one  side,  and  on  con- 
tracts on  the  other.  That  would  look  like  a  natural 
division.  But  our  own  experience  shows  that  it  is 
not  necessary,  and  the  experience  in  the  federal 
courts  shows  that  these  two  jurisdictions  can  be 
safely  blended  in  the  same  magistrate,  in  the  same 
tribunal.  If  that  be  so,  then  surely  it  would  be  a 
great  improvement  in  the  court  of  errors,  to  have 
judges  able  to  deal  with  both  these  branches  of 
law.  As  to  the  division  of  labor  that  is  urged  in  fa- 
vor of  the  separation,  I  hope  by  uniting  and 
strengthening  the  two  courts,  we  shall  be  able  to 
get  along  with  all  the  business  that  has  hitherto 
overwhelmed  the  courts. 

It  seems  in  the  course  of  the  debate  here,  to 
have  been  supposed  that  courts  of  equity  have 
some  power  to  dispense  with  the  law.  In  an 
early  and  valorous  age  such  a  power  may  properly 
be  exercised  by  the  court,  as  we  know  it  was  by 
the  sovereign.  It  was  one  of  the  prerogatives  of 
the  crown  to  dispense  with  an  act  of  parliam<'nr, 
and  perhaps  it  was  the  prerogative  of  the  Chancel- 
lor to  dispense  with  the  law.  In^the  days  of  Lord 
Bacon  some  doubt  may  have  hung  over  the  ques- 


679 


whether  i  he  Chancellor  could  dispense  |  inevitable  necessity ;  and  you  never  have,  you  will 
witl'i  the  laws.     It  is   pretty  certain   that  in  the   not,   and  I   say  you   dare  not  confer   this  power 

u;mn  a  justice  of  the  peace,  to  set  aside  a  default* 
In   Every  court  that  will  do  justice  to  man,  deserving 


pretty 

ling  reiu;n,  tint  of  Henry  the   VIII. 
somewhat  celebrated    for    his   dispensations. 


-Lc  of  Coke  and  Bacon  there  may  have  been 
doubts  on  the  subject;  but  the  authorities  were 

_  that  the  Chancellor   had  no  such  power, 

and  in  the  succeeding  reign   no  such  power  w;is 

i  i         _j        A  *  i-u;^.  *;»,,,.   i»-» 


of  the  name  of  justice,  must  have  the  power  in 
proper  cases,  to  permit  an  amendment  of  the 
pleadings,  to  permit  new  pleadings  of  the  new 
matter  that  may  have  occurred  since  the  last  pro- 


or  has  ever  since  beeq  claimed.  At  this  time  in  |  ceedings.  You  never  have,  you  never  will  grant 
this  state  or  the  United  States— and  in  Great  to  justices  of  the  peace  the  power  in  any  case 
Britain  for  more 

court  of  equity  Iras  claimed  or  exercised  the 
:•  to  modify  or  soften  the  rigor  of  the  law— or 
grant  relief  on  mere  grounds  of  moral  right, 
or  conscience,  that  was  not  given  it  by  fixed  rules 
of  law.  Even  in  the  extracts  read  by  the  gentle- 
man from  Essex,  it  was  the  better  opinion  of  Ba- 
con, that  a  court  of  equity  was  as  much  bound  .by 
bw  as  a  court  of  law,  and  it  has  been  so  in  every 
tribunal  for  150  years.  This  notion  that  a  court 
of  equity  will  of  necessity  do  right,  is  entirely  fal- 
lacious, unless  it  be  that  the  law  in  equity  and 
the  mode  of  proceeding,  is  better  to  reach  what 
would  be  morally  right.  It  is  in  no  degree  the 
superior  of  the  courts  of  common  law.  It  has  not 
forced  itselt  upon  men — men  have  been  obliged  to 
resort  to  it  as  a  means  to  supply  defects  of  the 
common  law,  and  in  every  instance  it  has  pro- 
!  the  very  remedies  which  were  deficient  and 
wanting  at  common  law.  Now  it  appears  to  me 
that  there  is  no  danger  in  the  matter,  no  difficulty 
in  it,  and  yet  I  know  how  fearful  other  men  are 
on  the  subject.  I  could  therefore  yield,  and  say 
make  four  co-ordinate  courts,  one  a  court  exclu- 
sively of  law,  another  entirely  a  court  of  equity, 
and  leaving  to  the  other  two  to  be  both  law  and 
equity,  and  ler.  it  be  tried  and  settled  by  the  force 
of  huma.i  experience.  Then  I  insist,  whether 
we  join  or  keep  them  separate,  that  the  chancel- 
lor like  all  other  judges  shall  go  down  and  hold 
his  share  of  the  circuit,  and  if  he  would  not,  he 
should  be  swept  from  the  woolsack.  This  part 
of  the  report  relating  to  the  blending  of  the  juris- 
dictions, I  agree  to ;  and  think  that  the  committee 
.  are  entitled  to  the  thanks  of  the  country  for  bring- 
ing the  question  before  the  Convention,  and  whe 
ther  their  proposition  is  the  best  or  not,  I  approve 
entirely  of  their  expressing  it  in  the  form  they 
have  adopted.  As  it  is,  the  union  of  the  two  juris 
dictions  is  most  plainly  expressed. 

I  must  hasten  over  other  matters,  and  some  I 
must  entirely  omit.  And  the  next  is.  what  shall 
be  done  with  the  local  county  courts.  Sir,  the 
report  by  reserving  and  preserving  the  justices  oi 
the  peace,  does  admit  that  local  courts  are  indis- 


than   an    hundred    years — no    however   strong  the   necessity,   to  allow  of  this 
amendment  of  the  pleadings  before  them. 

Mr.  STRONG:     Does  the  gentleman  say  that 
hey  do  not  have  that  power  now  by  law  ? 
rMr.  HOFFMAN  :    Yes,  sir.    I  understand  what 
I  am  saying.     Such  a  power  must  be  exercised  by 
motion,  on  fixed  rules  of  piactice  and  regular  no- 
ice  to   the   other   side,  and   must   submit  to  the 
onns  necessary.     You  have  not  and  will  not  grant 
them  thi»   power.     Every  tribunal    that  would  do 
justice   deserving   of  the   name,   must    have   the' 
power  under  certain  circumstances  to  grant  a  new> 

trial, and  on  the  justices'  courts  you  never  have 

you  do  not  now  permit— a  new  trial  to  be  granted 
by  the  court  itself.  Hitherto  you  have  not,  here- 
after you  may  grant  the  justice  -  a  jury  box,  in  his 
town  or  adjoining  one,  to  draw  his  jury.  When 
tried,  it  will  probably  be  found  to  be  a  total  fail- 
ure,  as  gentlemen  know,  who  know  how  the 
drawing  of  a  jury  for  a  court  of  record  is  made  to 
succeed  It  is  by  drawing  a  great  number,  and 
the  list  of  twelve  or  twenty-four  is  attained  by  a 
list  of  thirty-six,  or  more.  But  in  attempting 
to  get  a  jury  box  for  the  justices,  you  proba- 
bly will  create  so  much  distress  in  summoning 
so  many,  that  instead  of  lessening,  you  will 
increase  the  mischief.  There  are  other  re- 
medies essential  to  enable  a  court  to  do  jus- 
respect,  esteem  and 
Yet  there  are  many 

local  demands,  small  in  amount  to  be  sure,  yet 
great  in  the  aggregate— dear  to  the  men  who  own 
them,  that  deserve  the  kindest  care,  and  the 
safest  operation  of  justice  in  a  free  country.  And 
I  say  to  you  that  it  appears  to  me  that  the  local 
tribunal  that  you  can  arm  with  the  powers  of 
justice,  in  which  you  can  make  the  proceeding 
at  the  same  time  safe,  and  yet  the  cheapest,  is  the 
tribunal  of  the  county  court.  There  you  can 
move  to  set  aside  the  proceeding  and  you  can  do 
it  with  safety.  There  you  can  vest  the  power  of 
appointing  referees  to  take  an  account,  and  it 
is  as  much  'needed  in  small  accounts  to  the 
amount  of  twenty  or  thirty  dollars  as  any  other, 
and  you  cannot  and  will  not  vest  this  power  in  a 
justice  of  the  peace.  There  you  can  vest  the 
power  to  grant  a  new  trial,  and  you  have  done  it, 
and  it  has  been  exercised  and  practiced  for  more 
than  half  a  century.  There  all  these  powers 
are  known  to  be  safe  and  there  they  can 
be  exercised  cheaply— it  depends  only  upon 
legislation  whether  they  shall  be  exercised 
dear  or  cheap.  There  you  can  make  jus- 
tice what  it  ought  to  be,  safe  to  the  rights  of  the 
citizen,  cheap  as  is  in  your  power  to  make  it  any 
where,  and  L  ask  if  you  will  destroy  a  tribunal 
you  can  improve  so  much,  and  trust  thai  to  the 
justices'  court  which  you  dare  not  approve?  Are 
not  men  who  are  now  obliged  to  sue  in  justices' 
courts,  as  wtll  entitled  to  the  same  justice  as  any 


tice,  and  entitle   it  to   the 
confidence   of  the  people. 


pensable— iit  does  assume  the  position  that  the 
county  courts  are  not.  Now,  sir,  I  am  constrain- 
ed to  differ  from  the  report  on  this  part  of  the 
subject,  and  for  reasons  entirely  unacceptable  to 
some  members  of  the  Convention.  The  report 
proposes  to  retain  the  justices  of  the  peace  as  civil 
courts — I  speak  of  it  only  on  that  point, — and 
gentlemen  here  have  followed  up  the  suggestion 
that  these  civil  courts  should  have  given  to  them 
a  larger  jurisdiction  than  they  now  possess.  Ue- 
fore  gentlemen  commit  themselves  upon  the  mat- 
ter, I  invite  their  attention  to  the  necessity  of  the 
case.  Every  court  that  will  do  justice,  for  it  can- 
not do  justice  without  it,  must  have  a  power  to 
set  aside  a  default,  where  the  default  arises  from 


680 


otner  in  the  State  ?  Certainly  they  are.  But  it 
has  been  supposed  that  the  proceedings  in  justi- 
ces' courts  could  be  made  so  much  cheaper,  and 
therefore  men  desire  to  be  fed  with  cheap  justice, 
which  when  it  comes  to  them,  will  be  actual  in. 
justice  and  oppression.  But  the  justice  there  will 
not  be  so  much  cheaper  as  in  the  first  instance  we 
would  be  led  to  suppose.  If  I  employ  counsel  to 
join  my  issue  as  against  you,  if  you  are  an  unpro- 
fessional man,  must  you  not  also  employ  counsel  ? 
So,  too,  on  the  trial;' if  these  two  pettifogging  or 
counsel  fees  are  united  to  those  of  the  court  wit- 
nesses and  constable,  it  will  be  found,  putting 
them  all  together,  that  you  do  not  there  succeed 
in  getting  even  cheap  justice,  however  bad  its 
quality  may  be.  God  forbid  that  I  should  condemn 
the  justice  or 'any  body  about  him.  because  for  this 
office  you  neve?  have,  you  never  will,  give  him  the 
powers  necessary  to  do  justice.  When  you  consider 
the  circumstances  under  which  he  acts — a  body  ot 
law  of  10,000  volumes,  and  be  obliged  to  look 
it  up— the  jury  summoned  from  the  neighborhood 
— the  justice  who  may  have  previously  heard  the 
cause  because  he  must  have  issued  the  process — 
when  you  view  the  circumstances  under  which 
he  comes  to  the  discharge  of  his  duties — not  al- 
lowed to  set  aside  a  default— not  allowed  any  rea- 
sonable amendment  of  the  pleadings,  for  he  has 
no  form  of  practice — not  allowed  to  grant  a  new 
trial — not  allowed  to  do  anything  that  you  deem 
indispensable  to  a  court  of  justice.  If  these  things 
are  not  necessary,  why  give  them  to  the  Supreme 
Court,  and  the  county  court.  If  they  are  not  ne- 
cessary, if  they  are  not  essential  to  justice,  why 
have  they  for  the  last  two  hundred  years  been  en- 
grafted on  the  practice  of  all  the  courts,  where 
you  could  hope  for  justice.  They  are  essential, 
and  we  know'  that  no  court  can  do  this  duty  with- 
out them  ;  and  we  ought  not  to  drive  the  mass  of 
the  people  into  courts  of  justice,  where  you  do 
not  send  the  power  to  administer  justice.  Nor  is 
there  any  necessity  for  doing  it.  Heretofore  to 
the  small  amount  of  twenty-five  dollars,  you  have 
allowed  justices  to  try  causes,  and  not  above  it. 
If  there  were  errors,  there  was  the  certiorari,  and 
the  parties  were  sure  of  a  remedy ;  and  up  to  that 
amount  I  admit  that  the  justices  have  exercised 
their  jurisdiction  without  any  very  considerable 
complaint.  Men  have  gone  upon  the  principle 
that  it  was  better  to  lose  a  small  sum  than  to  sue. 
But  when  you  come  to  sums  above  twenty-five 
dollars,  you  say  in  effect  that  the  justice  shall  not 
trj  the  cause,  because  you  authorize  an  appeal 
to  the  county  courts.  Well  sir,  what  has  been  the 
consequence  of  this  attempt  to  remedy  the  evils 
in  the  justices'  jurisdiction  ?  How  much  better 
would  it  be  to  say  to  the  parties,  before  the  tri- 
al in  the  justices'  courts,  it  your  elect,you  may  now 
remove  your  causes  into  the  county  courts.  It 
would  be  better  a  thousand  fold.  The  cause  is 
not  now  tried  in  the  justices'  court.  Each  tries 
to  conceal  his  own  case  and  evidence,  and  fishes, 
as  the  lawyers  say,  to  find  out  what  the  other  will 
prove.  The  appeal  is  then  entered,  and  then  the 
manufacture  of  testimony,  the  improvement  of 
witnesses,  goes  on  from  that  day  until  the  trial  in 
the  common  pleas.  And  who  that  has  attended 
them  has  not  seen,  known  and  felt  this  to  be  the 
case  ;  the  worst  curse  to  the  parties — the  cause 
of  crime  and  corruption  on  the  new  trial,  and 


the  reason  why  days  are  taken  to  try  an  appeal 
in  the  common  pleas,  that  would  have  been  tri- 
ed in  as  many  hours,  if  the  cause  had  been  brought 
there  in  the  first  instance. 

Mr.  HOFFMAN  said  that  in  his  remarks  in 
the  morning,he  had  been  trying  to  show  why  the 
justices'  courts  would  not  answer  the  purposes  of 
safe,  proper  and  judicial  action.  Some  had  sup- 
posed that  the  difficulty  could  be  overcome  by 
making  a  law  for  this  especial  purpose.  But 
when  this  has  to  be  done,  the  ways  and  means 
have  to  be  found  to  effect  the  same.  The  prin- 
ciple he  had  spoken  of  must  be  fixed,  established 
and  realized.  By  giving  to  the  justices'  courts 
the  powers  which  had  been  proposed,  you  injure 
them,  unless  you  also  give  them  the  means  and 
the  rules  necessary  for  the  proper  exercise  of 
those  powers.  He  believed  that  they  could  not 
with  propriety,  and  that  they  dare  not  give  them 
all  the  power  necessary  to  make  them  safe  courts. 
If  you  reduce  the  number  of  justices — say  to  40 
justices  in  the  small  counties,  and  60  in  the  large 
counties,  converting  them  into  a  sort  of  common 
pleas,  with  the  powers  of  those  courts — perhaps 
you  might  render  them  safe  tribunals.  But  will 
you  do  it  ?  Are  there  ten  men  in  the  Convention 
that  dare  venture  on  it.  Whilst  the  laws  remain 
so  voluminous  as  they  now  are,  you  will  not  do 
it ;  you  will  not  empower  the  panel  of  juries 
to  draw  for  three  or  four  times  the  number  re- 
quired, as  you  now  do  in  the  court  of  record. -. — 
You  draw  24,  and  you  do  not  get  16 ;  you  draw 
18,  and  you  do  not  get  12.  Will  this  make  justice 
safe  ?  God  of  Heaven  !  Is  anything  that  is  in- 
secure safe.  Or  is  it  justice  ?  No,  indeed!  You 
must  find  few  courts  where  you  may  trust  this 
power. 

He  went  on  to  say  that  the  evils  he  complained 
of  were  the  fault  of"  the  present  system;  and  that 
the  reforms  contemplated,  never  could  be  effected 
under  the  present  system.  The  trial  might  be 
made,  but  it  would  prove  a  failure.  Again,  there 
was  no  necessity  for  any  such  trial.  He  asked 
if  it  was  not  possible  in  any  county  to  procure 
two  good,  competent  judges  of  high  standing  and 
character,  to  preside  in  a  court  something  like  the 
present  county  courts,  which  shall  exercise  local 
powers  of  indispensable  necessity.  You  can  ele- 
vate their  position  and  the  character  of  these 
courts  by  an  adequate  and  proper  compensation; 
for  justice  is  at  least  not  so  poor,  that  it  cannot 
afford  to  be  paid  lor.  Can  you  not  also  always  get 
one  goo:d  man  to  act  as  Surrogate,  if  you  pay  him 
for  it?  Most  certainly  you  can;  another  could  be 
made  a  Supreme  Court  commissioner,  with  pow- 
ers to  act  in  cases  of  absconding  debtors,  &c.,  and 
various  cases  which  he  (Mr.  H.)  would  not  then 
enumerate.  In  large  counties  you  may  carry  the 
number  of  these  to  three,  and  where  necessary 
even  to  four.  He  would  have  all  these  justly 
and  adequately  compensated ;  for,  he  conten- 
ded, that  if  you  pay  for  justice,  you  buy  noth- 
ing so  cheap  on  earth.  You  can  get  two,  three, 
or  lour  good,  •  competent,  able,  honest.f  coun- 
ty judges,  if  by  the  constitution  you  fix  the  rule 
that  they  shall  be  paid  tor  it;  and  in  this  particu- 
lar make  the  proper  apportionment  throughout  the 
state,  according  to  the  population.  They  could  also 
reform  and  simplify  the  proceedings  in  all  the 
courts ;  and  make  them  simpler,  and  cheaper; 


681 


'•ould  give  the  jurisdiction  inequity,  in  mat- 

re  entirely  local,  to  these  judges.     A 

man  may   say,   "Sir,    I    will  not  b«  tried  in  this 

town — I  will  not  b::  tried  in  this  county;  he  may 

also  say  I  will  not  be   tried  in  your  local  courts — 

but  I  insist  upon  being  tried  in  your  state  couits. 

"  You  must  provide  for'  this.     You  may  go  on  and 

a  certiorari,  where  the  ablest  men  in  your 
land  are  provided  and  prepared  to  administer  jus- 
Issues  of  law  joined  in  your  county  courts 
would  require  no  jury.  The  clerk  may  assess  the 
damages,  or  the  jury  of  inquiry  may  assess  the 
damages.  You  may  divide  your  larger  counties 
into  judicial  districts.  In  the  trial  of  a  cause  on 

al  from  a  justice,  the  judge  may  go  down 
into  the  district  where  the  parties  live,  call  for  a 
jury,  and  try  it  there ;  and  thus  bring  justice 
close  home  to  the  doors  of  every  one.  And  you 
can  have  causes  tried,  justice  administered,  and 
the  dignity  and  the  integrity  of  the  laws  preserv- 
ed as  cheap  in  this  manner,  as  it  can  be  made  in 
any  human  form,  and  make  it  safe  !  Why  then 
should  you  destroy  these  county  courts  ? — Why 
when  you  need  them  ? — why,  when  you  can 
make  them  useful !  when  you  can  make  them 
respectable  and  valuable  to  the  community  in  ev- 
ery particular  ?  why, — when  you  cannot  do  with- 
out them  ?  Why, — if  when  they  ask  for  bread,  you 
do  riot  mean  to  give  them  a  stone  ?  or  if  they  ask 
for  a  fish  you  do  not  mean  to  give  them  a  serpent? 
Having  said  thus  much  in  relation  to  these  courts, 
he  was  entirely  confident  that  the  pla*n  he  had 
proposed  could  be  successfully  put  in  practice  and 
that  was  all  that  he  had  to  say  on  this  part  of  the 
subject.  Mr.  H.  continued  to  say,  that  it  seem- 
ed to  be  supposed  by  some  that  the  one-man  term 
— the  one-rnan  power,  might  be  continued  as  to 
matters  o '  practice.  At  least  an  argument  or 
statement  to  that  effect  had  been  advanced  in  the 
Convention.  •  But  why  would  they,  when  a  limb 
has  been  torn  away  from  the  body,  cut  off  the 
other  limb  to  make  the  man  go  even.  The  fatal 
error  of  the  Supreme  Court,  was  by  adopting  the 
one-man  court,  as  to  matters  of  practice.  This 
made  it  similar  to  a  dark  and  dangerous  cavern. 
Few  men  went  near  it.  It  was  without  a  bar — 
without  the  confidence  of  the  people.  And  the 
present  suggestion  he  had  alluded  to,  was  nothing 
but  the  old  story  revamped  and  renewed.  If  the 
Convention  intended  to  create  courts  that  were  to 
live,  let  them  have  the  means  of  life ;  but  Jet  there 
be  no  one-rnan  term — no  one-man  power.  On  a 
writ  of  error,  on  a  bill  of  exceptions,  a  one-man 
term  may  be  a  possibility;  if  au  error  is  commit- 
ted you  may  carry  it  up — you  may  thus  get  that 
error  corrected.  But  the  other  cases  he  had  spo- 
ken of,  were  too  often  matters  of  discretion.  And 
he  would  ask,  is  that  the  place  where  you  would 
put  discretion  ?  The  judgment  may  be  set  aside, 
and  the  injury  may  be  fastened  on  you  forever. — 
Who  ever  heard  ot'  an  appeal  to  a  superior  tribu- 
nal for  the  purpose  of  setting  aside  a  default  ? — 
The  lust  thing  which  they  should  put  into  the 
Constitution,  was  such  a  discretionary  power  as 
this.  It  was  a  judicial  impossibility.  Some  had 
gone  so  far  as  to  suppose  that  the  evils  he  had 
pointed  out  and  denounced  were  to  be  continued. 
He  hoped  to  God  they  would  not !  He  hoped 
that  they  would  cease  !  lie  hoped  that  they 
would  never  adopt  such  a  system  again  !  The 


continuation  of  it  would  not  save  the  Supreme 
Court ;  it  only  tended  to  its  final  ruin. 

There  was  one  other  point  he  would  allude  to. 
If  they  were  to  have  one  keeper  of  the  records, 
the  clerk  of  the  city  or  county  where  the  court  in 
bank  is  held,  might  safely  act  as  clerk ;  and  in  his 
absence,  the  court  might  with  safety  appoint  a 
clerk  pro  tern.  You  could  have  him  clerk  of 
the  court — or  a  temporary  clerk  ;  and  in  each 
case  to  receive  no  compensation,  except  such  as 
shall  be  fixed  by  law  prior  to  the  service.  And 
this  system  of  clerkship  may  be  adapted  to  any 
of  these  courts;  but  unless  it  be  made  indispen- 
sable to  have  this  done,  in  the  Constitution  itself, 
it  will  not  be  adopted.  If  this  matter  be  left  to 
the  Legislature,  it  never  will  be  realized. 

Mr.  H.  went  on  to  complain  of  the  great  ex- 
pense of  these  clerics;  at  present  they  cost  the 
state  over  $40,000  a  year,  and  they  cost  the  pro- 
fession more  than  double  that  sum.  He  insisted 
that  this  mass  of  judicial  patronage  would  al- 
ways be  a  prolific  source  of  contention.  All  sorts 
of  arguments  will  be  pressed  forward  in  favor  of 
continuing  this  expensive  and  corrupt  system ; 
all  sorts  of  inducements  will  be  held  out  for  their 
continuance;  and  if  this  subject  be  left  to  the 
legislature,  the  reform  so  universally  called  for 
will  never  be  realized. 

Mr.  HOFFMAN  said  that  the  state  of  his  health 
warned  him  that  he  must  conclude.  (He  was 
evidently  suffering  intense  pain.)  He  knew  how 
painful  it  must  be  to  others  to  listen  to  those  who 
spoke  with  pain.  He  knew  that  the  members  of 
the  Convention  in  their  hearts  desired  to  do  the 
very  best  they  could,  in  reforming  the  judiciary 
system.  This  was  the  day  and  hour  that  would 
try  them  ;  for  here  they  were  to  make  a  system 
that  was  to  stand  to  all  eternity  recorded  that  it 
was  the  best  they  could  make,  arid  that  they  could 
do  no  better.  And  this  record  would  never  lie. 
It  would  tell  to  future  generations  that  after  128 
picked  men  from  all  parts  of  the  state,  had  been 
sent  here  to  reform  the  judiciary  system — and  af- 
ter they  had  given  their  earnest  attention  for  a 
long  period,  that  they  had  put  forth  this,  as  a  wit- 
ness that  they  could  do  no  better.  And  when  the 
grave  should  close  over  them — when  their  dust 
should  mingle  with  the  common  dust  of  the  earth, 
how  strongly  they  must  desire  that  no  voice  of 
condemnation  should  corne  down  upon  them, 
when  they  stand  forth  in  the  hour  of  irial.  They 
might  make  the  effort  to  prevent  this,  but  still 
the  voice  must  be  heard — for  praise  or  blame ;  and 
if  they  made  a  bad  system,  the  voice  of  condem- 
nation would  be  heard.  If  they  made  that  which 
should  stand  the  test,  it  would  be  well  for  all ;  if 
not,  it  would  be  ill.  But  the  voice  must  be  heard  ; 
let  it  be  that  they  have  done  nothing  but  their 
duty,  for  no  man  can  for  a  moment  desire  aught 
but  praises  upon  such  a  subject. 

Mr.  SIMMONS  said  that  it' in  order  he  wished 
to  propose  the  following  amendment : 

Resolved,  That  the  report  of  the  Judiciary  committee  be 
so  arranged  that  sixteen  of  the  Judges  be  so  arrange.!  into 
four  courts  of  general  jurisdiction,  one  of  which  shall  be  a 
.•ourt  of  equity;  eacli  court  to  hold  terms  in  .Bane  at  least 
twico  yearly  in  each  of  the  four  districts,  and  the  other 
sixteen  judges  to  compose  four  courts  of  local  jurisdiction 
\vit:un  a  judicial  distiict,  one  of  which  shall  be  a  court  of 
equity,  which  shall  hold  respectively  at  court  two  terms  in 
Bane  yearly  in  each  of  said  disticts,  and  at  different  times 
and  places  irom  the  other  courU:  The  former  courts  to  be 

60 


682 


entitled  supreme  courts,  the  latter  superior  courts;  the 
judges  of  the  former  to  be  selected  for  sixteen  years;  of 
the  latter  for  eight  years.  The  Legislature  shall  have 
power  to  constitute  such  county,  city  and  town  courts  as 
maybe  deemed  necessary;  and  to  transfer  such  jurisdic- 
tion and  powers  from  the  equity  to  the  common  law  courts, 
and  from  these  to  the  former,  and  to  prescribe  such  similar 
and  common  forms  of  proceeding  and  of  remedies,  as  may 
be  deemed  practicable  and  expedient. 

Mr.  S.  said  that  he  proposed  this  amendment 
in  order  to  put  himself  right  on  paper.  This  a- 
mendment  while  it  would  leave  the  legislature 
free  to  assimilate  the  practice  of  the  courts  as  the 
exigencies  of  the  times  might  demand,  at  the 
same  time  prevented  any  confounding  of  courts 
of  general  with  courts  of  local  jurisdiction. — 
At  the  same  time  it  would  give  to  the  friends  of 
local  jurisdiction,  the  same  benefits  precisely 
that  they  could  have  from  the  report  of  the  com- 
mittee, and  sustain  the  character  of  the  courts  of 
general  j  urisdiction.  He  desired  to  have  it  print- 
ed. 

The  CHAIR  said  a  motion  to  print  would  on- 
ly be  in  order  when  the  committee  had  risen. 

Mr.  SIMMONS  further  urged  that  the  amend- 
ment contained  a  principle  which  would  recon- 
cile the  conflicting  sentiments  in  the  convention, 
and  secure  a  perfect  unanimity  of  action.  He 
thought  it  afforded  a  perfect  opportunity  for  a 
compromise. 

The  CHAIR  decided  the  proposition  to  be  not 
now  in  order. 

Mr.  LOOMIS  suggested  that  the  gentleman 
could  secure  his  purpose  by  giving  notice  of  his 
resolution  of  instruction  or  amendment. 

Mr.  SIMMONS  adopted  the  suggestion. 

The  committee  then  rose  and  reported  pro- 
gress, and 

Then  the  convention  took  a  recess. 

AFTERNOON  SESSION. 
FUNDS  IN  CHANCERY. 

Mr.  TAGGART,  by  the  consent  of  the  House, 
presented  a  minority  repoit  from  the  select  com- 
iniUee,  t«>  which  was  referred  the  letter,  &c.,  of 
the  Chancellor,  relative  to  the  monies  now  under 
the  control  of  the  Couit  of  Chancery.  It  is  as 
follows  : 

That  having  duly  considered  the  subject  of  such  com. 
munication,  he  has  arrived  at  the  conclusion  that  it  is  inex- 
pedient to  provide  lor  the  creation  of  any  officer  to  take 
charge  ol  such  lunds;  but  that  provision  should  be  made 
for  the  safe  keeping,  investment  and  disbursing  of  such 
funds  by  such  county  and  State  officers  as  shall  seem  most 
conducive  to  the  benefit  and  convenience  of  the  parties  in- 
terested therein;  and  tor  that  purpose  recommends  the  fol- 
lowing to  be  incorporated  in  the  Constitution,  either  as  a 
separate  article  or  as  separate  sections  in  some  appropriate 
article:— 

<b  1.  The  Legislature  shall  provide  by  law  for  transfer- 
ring and  depositing  all  funds  and  securities  now  held,  or 
which  may  hereatter  be  held  by  or  under  the  control  of 
the  Court  ol  Chancery,  or  ol  any  other  court  or  courts,  or 
of  any  Register,  Assistant  Register,  Clerk  or  Receiver  of 
any  court,  lor  safe  keeping,  investment  or  disbursement, 
in  the  State  Treasury,  or  with  a  County  Treasurer,  as  fol 
lows: 

1.  All  funds  secured  by  real  estate  in  any  county  with 
all  securities  relating  to  the  same  with  the  County  Treas- 
urer of  the  county  in  which  the  real  estate  is  situated. 

2  All  funds  belonging  to  infants,  widows  or  lunatics,  not 
secured  by  real  estate,  with  the  County  Treasurer  of  the 
county  in  which  the  infant,  \vidow  or  lunatic  entitled  to 
the  same  resides,  if  a  resident  of  this  State. 

3.  All  funds  arising  from  the  sale  of  real  estate  hereafter 
to  ne  made,  directed  to  be  invested  by  order  of  any  court, 
and  all  securities  taken  upon  the  sale  ot  real  estate  hereaf- 
ter made  by  order  or  direction  of  any  court,  with  the  coun 


ty  treasurer  of  the  county  in  which  such  real  estate  shall 
be  situated. 

4.  All  other  funds  and  securities  mentioned  in  this  sec- 
tion, in  the  State  Treasury  or  with  the  county  treasury,  as 
shall  be  provided  by  law. 

§  2.  The  Legislature  shall  provide  by  law  that  every 
county  treasurer  having  in  his  custody  or  under  his  con- 
trol any  of  such  funds  or  securities,  shall  account  with  the 
board  of  supervisors  of  his  county  as  often  as  shall  be  re- 
quired lor  the  faithful  execution  of  the  trust  reposed  in 
him  as  depository  of  such  funds  and  securities,  and  shall 
annually  transmit  a  statement  of  such  funds  and  securities 
to  the  State  Treasurer. 

The  report  was  ordered  to  be  printed  and  to  be 
referred  to  the  committee  of  the  whole  having 
charge  of  the  majority  report. 

The  Convention  then  resolved  itself  into  com- 
mittee of  the  whole  on 

THE  JUDICIARY- 

Mr.  CAMBRELENG  in  the  Chair. 

The  question  was  then  put  on  Mr.  CHATFIELD'S 
proposed  amendment  to  the  third  section,  so  that 
it  should  read: 

"  There  shall  be  a  supreme  court  having  general  juris- 
diction in  law  and  equity." 

This  amendment  was  adopted  without  a  count. 

The  question  then  recurred  on  Mr.  SWACKHA- 
MER'S  motion  to  F trike  out  the  entire  section,  and 
insert : 

*' The  judicial  power  shall  be  vested  in  one  supreme 
court,  subject  to  the  appellate  jurisdiction  of  the  court  of 
appeals  :  and  in  such  subordinate  courts  as  shall  be  pro- 
vided by  this  constitution." 

Ayes  22-,  noes  34.    No  quorum. 

A  second  time,  there  were  ayes  24,  noes  44. — 
Lost. 

Mr.  PATTERSON  now  moved,  as  the  commit- 
tee seemed  disposed  to  settle  principles  before 
settling  details,that  the  12th  section  be  now  taken 
up.  That  section  was  as  follows  : 

"  5)  12.  The  justice  of  the  supreme  court  shall  be  elected 
by  the  electors  oi  the  respective  districts  at^  such  time  as 
may  be  provided  by  law— but  not  within  ninety  days  be. 
fore  or  alter  the  general  annual  election  " 

Mr.  BAKER  said  that  this  would  occasion  a 
difficulty.  How  could  they  proceed  lo  poini  out 
the  mode  ot  choosing  the  supreme  court  jud«i-s 
before  they  knew  the  numbei  they  would  have  — 
They  must  decide  on  the  number  before  they  de- 
cided whether  they  should  be  appointed  or  elected. 

Mr.  PATTERSON  thought  that  it  was  entirely 
immaterial  whether  the  number  was  more  or  less 
in  coming  to  a  decision  on  their  mode  of  appoint- 
ment;  they  could  easily  say  whether  they  should 
be  elected  or  appointed  before  they  came  to  a  de- 
cision on  the  numbers. 

JVir.  BAKER  withdrew  his  objection. 

Mr.  O'CUNOR  suggested  that  a  motion  to  amend 
would  bring  up  the  whole  question  He  thought 
it  desirable  belore  proceeding  to  lake  up  the  12th 
section  as  proposed,  that  they  should  determine 
whether  they  intend,  d  to, have  county  courts  or 
not.  ^The  16th  section  proposed  to  abolish  the 
county  courts.  Now,  a  proposition  to  amend  that 
would  bring  up  the  whole  question.  The  12th 
section  contemplated  district  supreme  courts  — 
Now  it  must  depend  on  the  decision  of  this  ques- 
tion about  county  courts  whether  they  would  de- 
cide on  having  the.«e  district  supremecourts  or  not. 

Mr.  MARVIN  said  that  he 'was  by  no  means 
satisfied  with  the  vote  on  the  3d  section  ;  and  he 
was  not  certain  that  he  understood  the  effect  of 
that  vote.  Did  it  decide  distinctly  whether  the 


683 


Supreme  Court  was  to  have  jurisdiction  in  law 
and  equity.  He  thought  not.  He  wanted  a  vote 
in  some  direct  way  as  to  whether  the  law  and 
i- 1] utty  powers  were  to  be  vested  in  the  same 
<Miirt.  And  in  order  to  get  a  direct  vote  on  that 
point,  he  would  move  to  strike  out  of  the  section, 
as  amended,  the  words  "  and  equity,"  so  that  it 
should  read,  "  There  shall  be  a  Supreme  Court 
having  general  jurisdiction  in  law." 

Mr.  BASCOM  remarked  that  this  presented  a 
very  important  question.  He  very  much  doubted 
the  propriety  of  increasing  the  number  ot  judges 
who  were  to  exercise  chancery  poweis  from 
eleven,  the  present  number,  to  thirty-two.  If,  as 
some  supposed,  it  was  impracticable  to  so  assimi- 
late the  modes  of  proceeding  in  law  and  equity, 
he  would  prefer  to  rest  equity  powers  in  four 
chancellors,  and  the  power  of  administering  law 
in  a  reasonable  number  of  judges.  But  he  believ- 
ed it  was  practicable,  and  hence  he  had  presented 
a  minority  report,  with  a  view  to  permit  this  as- 
similation to  take  place,  if  the  legislature  choose 
to  do  it.  He  suggested  that  this  proposition  left 
room  for  the  legislature  lo  make  that  distribution 
of  the  legal  ani  equity  poweTs~among  the  j«4iei- 
arVj_as  the  gentleman  from  Essex  (Mr.  SIMMONS) 
desired.  As  it  was,  we  had  decided  that  we 
would  form  a  portion  of  a  system,  and  leave  the 
legislature  to  form  the  rest.  It  this  was  to  be  the 
result  of  this  elaborate  reform,  and  if  that  was  the 
settled  determination  of  this  body,  then  he  had 
only  two  lines  to  offer  as  a  substitute  for  the  whole 
article— to  this  effect,  that  the  judicial  power 
shall  be  vested  in  such  court  or  courts  as  shall  be 
established  by  law.  He  wanted  the  Convention 
lo  take  the  responsibility  of  establishing  a  judici- 
ary system  or  of  throwing  it  on  the  legislature. — 
For  he  was  prepared,  if  any  part  of  this  responsi- 
bility was  thrown  upon  the  legislature,  to  throw 
the  whole  of  it  there.  He  only  retained  his 
amendment  to  give  the  gentleman  from  Chautau- 
que  (Mr.  MARVIN,)  time  to  present  distinctly  the 
question  he  desired  to  raise. 

Mr.  MARVIN  said  that  it  was  the  farthest  from 
his  intention  to  declare,  by  any  vote  of  his  that 
the  courts  of  law  and  equity  should  be  united  and 
merged  in  one.  But  he  supposed  that,  he  had  vo- 
ted under  a  misapprehension  of  what  the  ques- 
tion was  in  reality  when  the  amendment  hereto- 
fore passed  had  been  voted  upon.  He  had  there- 
lore  at  this  time  introduced  this  amendment  so  as 
to  raise  the  distinct  question,  as  to  whether  they 
would  or  would  not  abolish  the  court  of  chancery; 
a  vete  on  his  proposition  would  decide  it.  For 
his  own  part,  he  wished  to  see  in  the  new  Con- 
stitution what  there  is  in  the  present  Constitu- 
tion— a  provision  to  authorize  the  legislature  to 
confer  on  any  courts  of  law  such  equity  powers, 
as  they  from  time  to  time  should  see  fit,  and  or- 
ganize such  subordinate  courts  as  they  might 
deem  necessary.  And  above  all  his  desire  was 
to  keep  up  the  two  courts  with  a  separate  and 
distinct  organization. 

Mr.  KIRKLAND  said  that  under  his  present 
understanding  of  the  proposition  of  the  gentle- 
man from  Chautauque  (Mr.  MARVIN)  he  should 
vote  against  it.  He  (Mr.  K.)  did  not  consider 
the  proposition  contained  in  this  section  as 
necessarily  involving  the  question  whether  they 
were  or  were  not  to  have  but  one  single  court 


and  that  court  to  represent  both  the  existing  Su- 
>reme  court  and  the  court  of  chancery.   The  pro- 
>osition  then  before  them  and  the  amendment  to 
t,  did  not  involve  the  question  whether  there 
was  to  be  one  or  more  courts  of  chancery,  but 
whether  equity  and  common  law  proceedings  were 
;o  be  merged  in  one  court ;  whether  they  were 
n  favor  of  having  the  courts  united  in  the  same 
ribunal.     He  certainly  supposed  that  if  the  ju- 
risdiction of  these  tyo  were  to  be  merged,  there 
would  be  a  necessity  for  the  erection  of  more  than 
ne  court  to  dispatch  all  the  business  which  must 
necessarily  be  thrown  upon  such  a  tribunal.     It 
would  at  all  events  be   necessary  to  have  more 
han  one  such  court.     All  the  business  that  is  now 
done  by  the  circuit  judges,  the  examiners,  and 
he  greater  part  of  that  which  is  now  done  by  the 
masters,  would  have   to  be  transacted  by   that 
court.     Now  he  (Mr.  K.)  should  vote  for  the  pro- 
position, but  in  voting  for  it  as  it  stood,  he  did  so 
lot  suppose  that    he  was  voting  for  anything 
more  than  this,  viz :  that  we  unite  in  one  and  the 
ame  ^ribunal  or  tribunals,  the  powers  and  duties 
of  these  two  courts,  the  existing  tribunals  of  law 
and  equity — or  in  other  words,  that  these  two 
courts  and  their  powers  and  duties,   (in  law  and 
equity)  shall  hereafter  be  vested  in  and  exercised 
y  but  one  form   of  tribunal.     And  with  these 
lews.,   he  should  vote   against  Mr.  MARVIN'S 
amendment. 

Mr.  €HATFIELD  asked  Mr.  K.  how  this  sec- 
tion differed  in  principle  from'  the  gentleman'vS 
wn  report. 

Mr.  KIRKLAND  stated  in  answer  that  the  ju- 
risdiction was  the  same  in  both.  His  (Mr.  K.'s) 
4th  section,  however,  established  more  than  one 
ribunal. 

Some  further  conversation  passed  between 
Vfessrs.  MARVIN  and  STETSON,  in  regard  to  the 
effect  which  this  amendment  would  have. 

Mr.  SWACKHAMER  hoped  the  amendment 
would  be  voted  down.  This  would  go  far  to- 
wards the  settlement  of  the  question  whether  that 
old  dragon,  the  court  of  chancery,  was  to  be  an- 
nihilated. 

Mr.  BASCOM  should  vote  for  the  amendment 
for  this  reason.  It  might  be  that  he  misunder- 
stood the  effect  of  the  proposition  of  the  gentle- 
man from  Otsego.  The  section  reported  by  the 
committee  provided  that  the  Supreme  Court 
should  have  the  same  jurisdiction  in  law  and 
equity  as  the  courts  now  have,  subject  to  regula- 
tion by  law.  Mr.  B.  objected  to  this,  as  not  be- 
ing definite  enough,  and  would  not  authorize  the 
legislature  to  abolish  the  separate  chancery  ju- 
risdiction. He  wanted  some  provision  in  the 
Constitution  so  defining  the  judicial  power,  that 
we  might  know  where  to  find  it.  But  how  stood 
the  section  now  ?  There  shall  be  a  superior 
court  having  general  jurisdiction  in  law  and 
equity.  Mr.  B.  objected  to  this  word  general, 
because  if  it  meant  any  thing  it  meant  the  juris- 
diction now  existing,  and  thus  we  should  sanc- 
tion all  the  equity  powers  of  the  court  of  chance- 
ry as  now  existing.  And  to  make  the  matter 
worse,  the  words  "  subject  to  regulation  by  law," 
were  left  out.  Now,  Mr.  B.  would  vote  to  get 
this  word  **  equity"  out  of  this  section,  and  when 
it  should  be  moved  to  insert  it  elsewhere,  he 
would  probably  be  found  voting  against  that. 


684 


Mr.  CHATFIELD  could  scarcely  find  out  what 
the  gentleman  wanted. 

Mr.  BASCOM— I  want  to  leave  the  constitu- 
tion in  that  particular  as  it  is,  and  let  the  legisla- 
ture regulate  this  subject  of  jurisdiction. 

Mr.  CHATFIELD — Then  the  gentleman  wants 
more  than  when  he  brought  in  his  report. 

Mr.  BASCOM— Not  at  all. 

Mr.  CHATFIELD  referred  to  the  report,  con- 
tending that  in  effect  it  contained  precisely  what 
this  3d  section  provided  for.  He  could  not  as- 
sent to  the  criticism  on  the  word  general.  It 
had  a  meaning  well  understood,  and  there  was  no 
covert  meaning  hid  under  it.  This  section  had 
no  connection  with  the  13th.  When  that  came 
up  he  should  give  his  views  in  relation  to  it.  It 
did  not  meet  his  favor  as  it  stood,  and  he  should 
vote  to  amend  it.  He  might  vote  to  strike  it  out. 

Mr.  SWACKHAMER— Are  we  to  understand 
that  the  gentleman  will  vote  with  us  to  strike 
out  the  13th  section? 

Mr.  CHATFIELD—"  Sufficient  to  the  day  is 
the  evil  thereof."  > 

Mr.  LOOMIS  said  the  amendment  before  the 
committee  brought  up  the  direct  question  whe- 
ther there  should  be  a  separate  Court  of  Chance- 
ry or  not.  He  desired  gentlemen  so  to  under- 
stand it.  This  would  be  the  first  vote  directly  on 
that  point  that  would  be  taken.  He  believed  a 
large  majority  would  vote  to  unite  these  courts. 
Mr.  L.  said  the  language  of  this  section  had  un- 
dergone a  great  deal  of  examination  elsewhere,  as 
well  as  here.  He  believed  it  about  right  as  it 
stood. 

The  motion  of  Mr.  MARVIN  was  rejected — 
ayes  7,  noes  01. 

Mr  BASCOM  moved  to  strike  out  the  words 
"  law  and  equity,"  so  that  it  should  read — "There 
shall  be  a  Supreme  Court  having  general  juris- 
diction." 

Mr.  JORDAN — Does  the  gentleman  mean  ge- 
neral jurisdiction  in  ecclesiastical  and  legislative 
matters?  If  so,  I  object  decidedly.  We  have  a 
set  of  professional  gentlemen  set  apart  to  take 
care  of  one  of  these,  and  I  believe  we  shall  elect 
128  men  to  look  after  the  other 

Mr.  BASCOM  only  wanted  to  have  this  juris- 
diction regulated  by  law.  He  varied  his  amend- 
ment so  that  it  would  read — "  There  should  be  a 
Supreme  Court  havfng  such  jurisdiction  as  shall 
be  prescribed  by  law/' 

The  amendment  was  lost. 

iVir.  O'CON'OK  moved  io  acJrl  to  the  end  of  the 
section  the  words,  "and  in  each  countv,  a  county 
court  having  original  jurisdiction  in  civil  casts." 

Mr.  PEKKIN^  :' Does  the  m--n!lernan  mean  to 
exclude  criminal  jurisdiction  from  these  courts? 

Mr.  O'CONUK:  Not  at  all.  I  only  want  to 
raise  the  disimct  question  whether  we  shall  have 
a  count  v  court  or  riot 

Mr.  RICHMOND:  Does  the  gentleman  mean 
that  these  courts  shall  have  jurisdiction  in  law 
and  equitv  both  ? 

Air.  O'CONOR  :  That  is  another  question,  to  be 
settled  subsequently.  I  want  to  disembarrass  this 
question  ot  all  collateral  issues. 

Mr.  CROOKER  suggested  that  the  gentleman 
should  leave  out  the  last  few  words  of  his  amend- 
ment. 

Mr.  O'CONOR  assented. 


Mr.  STETSON  suggested  that  Mr.  O'C.  should 
reserve  his  motion  until  the  13lh  section  was 
reached  which  authorizes  the  Legislature  to  estab- 
lish inferior  courts, 

Mr.  O'CONOR  was  of  the  opinion  that  this  was- 
the  proper  place  to  move  his  amendment.  Be- 
fore approaching  the  question  how  many  judges 
should  constitute  the  supreme  court,  &c.,  it  vva^ 
proper  to  ascertain  whether  we  intended  to  abo- 
lish this  ancient  institution — the  county  court,  or 
whether  we  should  try  to  elevate  its  character. — 
And  besides  he  thought  the  13th  section  would  be 
necessary  whether  we  retained  the  county  courts 
or  not. 

Mr.  LOOMIS  thought  this  not  the  proper  time 
to  raistt  the  question.  He  was  in  favor  of  a  coun- 
ty court  as  had  been  shown  by  hisamendmenls  of- 
fered. We  should  embarrass  the  question  of  or- 
ganizing the  supreme  court  if  we  settled  upon 
this  naked  question  at  this  time.  It  would  lead  to 
contusion.  He  would  adhere  to  the  plan  suggest" 
ed  by  the  chairman  of  the  committee.  S-,'tile  the 
question  of  election  next,  then  of  the  supreme 
court,  and  then  it  would  be  to  say  whether  vso 
should  have  a  county  court  or  not. 

Mr.  NICHOLAS  said  he  differed  in  opinion 
wish  the  gentleman  from  Herkimei ,  (Mr.  LOOMIS) 
who  thought  we  should  first  oiganize  the  supreme 
court,  and  afterwards  decide  whetiier  we  are  or 
not  to  have  a  county  couir.  He  (Mr.  N.)  thought 
the  ques'ion  should  now  be  settled  whether  we 
are  to  have  county  courts.  The  adjustment  of 
this  question,  at  this  time,  is  important,  to  ena- 
ble us  judiciously  to  organize  the  supreme  court. 
Should  the  county  courts  be  re-organized,  and 
rendered  more  efficient,  a  smaller  number  of  judg- 
es will  do  the  business  of  the  supjrerne  court ;  hut 
if  the  county  courls  are  to  be  abolished,  jhe  su- 
preme court  will  require  the  number  of  judges  re- 
commended by  the  committee.  He  therefore 
thought  this  question  as  to  the  county  courts 
should  be  decided  at  this  time. 

Mr.  JORDAN  said  the  reasons  suggested  by  the 
entleman  from  Ontario  would  be  those  which 
would  bring  him  (Mr.  J.)  to  an  opposite  conclu- 
sion. If  the  retention  of  the  county  courts  was 
to  have  any  effect  upon  the  organization  of  the 
Supreme  Court,  it  was  all  important  that  we 
should  know  what  sort  of  county  courts  we  were 
to  have.  Some  were  for  retaining  these  courts 
as  they  now  were — others  considered  them  as  a 
nuisance.  Some  proposed  to  organize  them  upon 
one  plan  and  some  upon  another.  To  settle 
therefore  upon  the  naked  question  that  we  should 
have  a  county  court,  would  be  to  leave  us  in  the 

k.^JHe  was  in  favor  of  some,  sort  of  a  county 
court,  but  nothing  of  the  kind  that  we  had  now. 
He  would  confine  them  to  criminal  and  such  mis- 
cellaneous business  as  were  now  committed  to 
county  courts — the  licensing  of  ferries,  &c.  &c. 
Hie  would  make  a  first  Judge  and  let  him  be  the 
Surrogate,  and  associate  with  him  the  justices  of 
the  peace,  to  do  the  business  he  had  suggested. 
Such  a  court  would  not  at  all  interfere  with  the 
upper  courts.  If  it  was  thought  proper,  he  was 
willing  to  go  into  the  consideration  of  the  ques- 
;ion  what  sort  of  county  courts  would  be  the  best. 
3ut  to  vote  on  the  naked  question  would  only 
lamper  our  action  and  lead  to  embarrassment. 


685 


Mr.  RICHMOND  could  not  concur  with  th 
gentleman.  He  thought  the  only  proper  couvs 
to  Infill  with  the  lowest  courts  and  then  g 
up.  l-'irst  determine  what  sort  of  justices  court 
you  would  have — then  what  kind  of  count 
courts,  and  then  see  what  your  supreme  cour 
shall  be.  That  is  the  only  proper  way  to  d 
this  understand! ngly.  There  was  more  than  on 
man  in  this  Convention,  who  was  in  favor  of  in 
creasing  the  jurisdiction  of  justices  courts,  an< 
cutting  off  a  certain  amount  of  appeals  therefrom 
In  relation  to  common  pleas  courts,  Mr.  R.  woul 
here  say  that  if  any  plan  could  be  devised  tha 
would  elevate  the  character  and  influence  o 
these  courts,  he  would  vote  for  it.  He  would  g< 
with  the  gentleman  from  Chautauque  (Mr.  MAR 
VIN)  but  he  would  say  farther,  that  if  that  plan 
should  be  adopted,  he  should  not  vote  for  near  as 
many  supreme  court  judges  as  he  should  if  w 
were  to  have  no  common  pleas  courts.  Anc 
again,  he  believed  that  if  we  extended  justice 
jurisdiction  and  cut  off'  a  certain  portion  of  ap 
peals,  we  should  cut  off  at  least  one  third  of  th< 
business  now  thrown  upon  the  upper  courts. — 
This  was  another  argument  why  we  should  be 
gin  with  the  inferior  courts  and  settle  them  befor* 
passing  upon  the  question  of  the  kind  of  supreme 
court  we  should  have. 

Mr.  TILDEN  followed,  expressing  similar 
views,  and  urging  that  it  was  all  important  we 
should  first  settle  the  question  of  the  retention  01 
abolition  of  county  courts. 

Mr.  PATTERSON,  before  voting  on  the  ques- 
tion whether  we  should  have  a  county  court 
hoped  some  gentleman,  by  to-morrow  morning 
would  prepare  and  present  to  us  a  plan  lor  such 
a  court.  Unless  we  had  sujch  a  plan  we  might 
find  ourselves  in  the  situation  of  a  certain  com- 
mittee not  long  since.  On  the  naked  question  of 
a  county  court,  there  was  a  majority,  but  three 
members  voting  with  that  majority,  had  each  a 
plan  of  his  own,  and  the  result  was  that  no  ma- 
jority was  found  in  favor  of  any  project.  Let  us 
have  the  plan  before  voting  that  we  may  know 
what  we  are  voting  for. 

The  committee  then  rose  and  reported,  and  the 
Convention  adjourned. 


WEDNESDAY,  (66th  day,}  August  19. 

Prayer  by  the  Rev.  Mr.  SELKIRK. 

The  PRESIDENT  laid  before  the  Convention 
a  set  of  resolutions  and  a  memorial  adopted  at  a 
meeting  of  the  citizens  of  Jefferson,  Lewis,  and 
Oneida  counties,  in  favor  of  resuming  the  public 
works  and  completing  the  unfinished  canals. — 
They  were  read. 

Mr.  KIRKLAND  moved  that  they  be  printed, 
and  referred  to  the  committee  of  the  whole  hav- 
ing charge  of  Mr.  HOFFMAN'S  report. 

Mr.  CHATFIELD  called  for  a  division  of  the 
question.  Ordered;  and  the  memorial  was  so 
referred. 

On  the  question  of  printing, 

Mr.  KlKIvLANDsaid,that  apart  from  the  much 
valuable  statistical  information,  which  the  docu- 
ment contained,  it  should  be  remembered  that 
there  was  a  proper  degree  of  respect  due  to  the  citi- 
zens of  those  counties  who  hud  assembled  in  the 
meeting  where  these  resolutions  were  adopted. 
They  were  the  deliberate  convictions  and  senti- 


ments of  a  large  body  of  our  fellow  citizens  in 
Oneida,  Lewis,  and  Jefferson  counties ;  they  were 
entitled  to  great  respect;  and  the  information 
they  had  forwarded  to  us,  ought  to  be  printed — 
put  into  such  a  shape,  as  that  the  members  could 
readily  read,  examine  closely,  and  reflect  upon  it. 
This  favor  has  already  been  granted  to  other  me- 
morials coming  from  other  quarters  of  the  State, 
not  even  as  important  in  their  character  as  this. 
The  proceedings  of  a  meeting  at  Niagara,  and  al- 
so those  of  one  at  Rochester,  were  ordered  to  be 
printed.  There  were  a  great  number  of  facts 
contained  in  this  which  would  justify  the  print- 
ing. It  was  on  a  very  important  subject,  and  was 
from  a  very  numerous  and  highly  respectable 
meeting ;  and  ought  to  be  treated  with  the  same 
respect  and  courtesy  which  had  been  shown  to 
other  memorials  on  the  same  subject. 

Mr.  CHATFIELD  could  not  see  the  propriety 
of  printing  this  memorial.  Indeed  he  had  serious 
objections  to  it.  He  had  yet  to  learn  why  the 
citizens  of  these  canal  counties  had  any  more 
right  lo  come  here  and  spread  their  views  on  our 
journals,  and  have  them  printed  at  the  public  ex- 
uen.se  than  the  citizens  of  his  own  county,  or  of 
any  other  part  of  the  State.  Vaiious  memorials 
had  coine  in  here  from  several  other  parts  ol  the 
Siale,  and  they  had  not  been  printed,  and  this  cer- 
tainly ought  not  to  be  printed.  Indeed  this  over- 
shadowing canal  interest  has  controlled  the  State 
long  enough.  It  has  tor  years  and  years  thrust  its 
long  arms,  and  broad,  grasping  hands  down  to  the 
bottom  of  the  pockets  of  the  people,  and  taken 
out  their  money  by  thousands  and  hundreds  of 
thousands  of  dolla'rs.  It  has  ruled  the  Legislature 

•ng   enough,  and  he  did  not  want  it  to  rule   the 

onvention.  At  the  same  time,  he  (Mr.  C.)  was 
not  opposed  to  all  rational  internal  improvements. 
But  he  had  already  given  his  views  at  length  on 
his  point,  and  might  shortly  have  occasion  to  do 
o  again.  Now,  if  they  should  vote  to  print  that 
neraorial,  he  should  move  to  have  meetings  got 
up  all  over  the  Siate,  on  the  other  side  of  the 
question,  and  then  let  the  Convention  print  all 
hat  is  .sent  to  them. 

Mr.  STETSON  said  he  had  no  objection  to  (ol- 
ow  the  usual  course  in  this  matter,  in  regard  to 
he  question  of  printing.  He  had  no  sort  of  bos- 
ility  to  this  subject  that  would  lead  him  to  oppose 
granting  the  printing  in  this  case,  more  than  any 
>ther.  There  should  certainly  be  no  partiality  in 
his  matter.  But  he  could  not  "admit  that  the  prin- 
:iple  contended  ior  by  Mr.  KIRKLAJVD  had  been 
ustained  throughout.  The  gentleman  Irorn  Orange 
Mr.  TUTHILL)  came  here  with  a  numerously 
igned  memorial,  on  a  very  important  subject,  and 
us  colleague  (Mr.  BROWN)  had  requested  its  print- 
ng.  It  was  against  further  luxation  tor  internal 
approvements.  The  request  was  refused,  although 
everal  documents  from  the  other  side  had  previ- 
usly  been  printed.  Now  he  was  not  opposed  to 
rinting  both  sides;  but  since  the  Convention  had 
enied  it  to  one  party,  he  should  oppose  it  on  the 
(her.  He  therefore  moved  to  lay  the  motion  on 
he  table. 

Mr.  ANGEL  called  for  the  ayes  and  noes — 
iey  were  ordered  and  resulted  thus  : 

AYES— Messrs.  AllenjBascom.Bergen.Bowdish.Brown, 
urr,  Cambreleng,  Ghatlield,  Cfark,  Cook,  Cornell,  Dodd, 
ubois,  Flanders,  Graham,  Greene,  Hart,  Hunt,  Hunter,  A. 
untington,  Hyde,  Kemble,  Kennedy,  Kernan,  Kingsley, 


686 


Loomis,  Mann,  Morris,  Nellis,  Nicoll,  Perkins,  President, 
Bichmond.  Riker,  St.  John,  Sanford,  Sears,  Shaw,  Sheldon, 
Stanton,  Stephens,  Stetson,  W.  Taylor,  Tilden,  Townsend, 
Tuthill,  Waterbury.Willard,  Witbeck, Wood,  Youngs— 51. 
NOES- Messrs.  Angel,  Archer,  F.  F.  Backus,  Baker, 
Bruce,  Bull,  D.  D.  Campbell,  Chamberlain,  Conely.Crook- 
er,  Dana,  Danforth,  Hotchkiss,  E.  Huntington,  Jordan, 
Kirkland,  McNitt,  Marvin,  Miller.  Nicholas,  O'Conor,  Par- 
ish, Patterson,  Penniman,  Rhoades,  Salisbury,  Shaver,  She- 
pard,  E.  Spencer.  W.  H.  Spencer,  Stow,  Strong,  Swackha- 
mer,  Taggart,  Tallmadge,  Warren,  White,  A.  Wright,  W, 
B.  Wright,  Young-40. 

Mr.  STETSON'S  motion  was  therefore  carried. 

Mr.  CROOKER  offered  the  following,  and  it 
was  adopted : 

Resolved,  That  committee  No.  18,  be  requested  to  in- 
quire into  the  propriety  of  reporting  a  provision  for  dis- 
couraging the  holding  of  land  by  corporations,  except 
when  used  for  their  necessary  business  purposes. 

The  Convention  then  went  into  committee  of 
the  whole  on 

THE  JUDICIARY. 

Mr.  CAMBRELENG  resumed  the  Chair. 

The  question  was  on 

Mr.  O'CONOR'S  amendment  to  retain  the 
county  courts. 

Mr.  PATTERSON  had  but  a  few  remarks  to 
submit  upon  this  question.  The  amendment  pro- 
posed that  we  should  have  a  county  court  with 
original  jurisdiction,  without  defining  what  sort 
of  a  court  we  should  have.  He  stated  yesterday, 
that  unless  we  define  the  court  first,  that  if  the 
question  be  taken  on  the  abstract  question  of  a 
county  court,  without  defining  what  kind  of  court 
it  is  to  be,  we  should  find  ourselves  in  the  pre- 
dicament of  the  judiciary  committee,  where,  al- 
though a  majority  voted  in  favor  of  a  county 
court,  yet  those  constituting  that  majority  could 
not  agree  to  any  particular  plan  for  the  organiza- 
tion of  a  court.  He  wanted  a  plan  presented 
here  in  advance  and  voted  upon.  Let  the  gen- 
tleman from  N.  Y.  (Mr.  O'CONOR)  present  a 
plan;  if  we  do  not  agree  on  that  let  us  have  an- 
other plan.  Then  we  could  vote  understanding- 
ly.  But  if  we  voted  nakedly  upon  the  question 
of  a  county  court,  we  should  find  ourselves  in  an 
embarrassed  condition.  Let  us  say  at  once  if 
we  are  to  have  a  county  court  of  original  juris- 
diction or  not.  Now  let  us  see  what  kind  of 
county  courts  we  have  had  before. 

He  did  not  believe  there  was  a  gentleman  on 
or  off  this  floor,  who  would  consent  to  the  estab- 
lishment of  just  such  county  courts  as  we  have 
had  in  the  several  counties  of  this  state  hereto- 
fore. Perhaps  the  gentleman  from  New  York 
(Mr.  O'CONOR)  would  be  willing  to  have  such 
courts  established  in  the  country,  but  he  believed 
no  person  out  of  that  city  would  consent  to  it. — 
The  returns  which  had  been  received  here  in  re- 
lation to  the  expenses  of  these  courts,  show  that 
the  whole  amount  of  judgments  have  not  amount- 
ed to  so  much  as  the  expenses  of  jurors.  It  would 
have  been  more  to  the  pecuniary  advantage  of  the 
people  if  they  had  paid  out  of  their  own  pockets 
the  verdicts  rendered,  rather  than  to  have  sub- 
mitted to  the  expense  of  these  formal  trials.  Then 
why  continue  such  courts  as  these  ? 

It  had  been  said  that  it  was  necessary  to  have 
local  judges,  in  order  to  have  an  authority  to  issue 
writs  to  apply  in  local  cases ;  but  why  should  not 
this  power  be  given  to  the  surrogates  of  the  coun- 
ties? If  there  were  to  be  five  judges  hi  each 
county  who  received  a  fixed  salary,  what  was  to 


be  the  amount  of  their  salary?  It  could  not  be 
said  that  a  fixed  salary  could  be  made  which 
would  apply  to  all  the  judges  in  the  different 
counties,  both  where  the  business  was  large  and 
where  it  was  less  extensive— the  same  in  Rock- 
land  as  in  Oneida.  Why  not  confer  on  the  Sur- 
rogate the  duties  done  by  the  county  court  judges 
now  in  chambers  ?  His  own  plan  would  be,  in 
providing  for  local  courts,  to  elect  two  judges  in 
each  county,  who,  with  a  judge  of  the  supreme 
court,  should  hold  sessions  of  oyer  and  terminer. 
And  this,  he  believed,  would  be  as  good  a  court 
of  local  jurisdiction  as  could  be  had.  Some  gen- 
tlemen, like  the  gentleman  from  Ontario  [Mr. 
WORDEN]  had  referred  to  one  or  two  counties 
where  the  county  courts  were  good  enough. — 
That  gentleman  had  the  good  fortune  to  live  in  a 
county  where  there  was  an  effective  court.  Such 
however,  was  not  true  of  the  State  generally. — 
Mr.  P.  believed  his  own  plan  would  be  better 
than  any  county  court  which  could  be  established 
upon  the  present  plan. 

The  committee  had  provided  that  the  judge  of 
the  Supreme  Court,  when  he  went  into  the  coun- 
try to  hold  his  Circuit  might  have  two  justices  of 
the  peace  associated  with  him.  But  the  judiciary 
committee  did  not  propose  to  give  the  judge  of 
the  county  court  original  jurisdiction.  They 
wished  all  legal  proceedings  to  be  so  regulated 
that  the  practice  should  be  the  same  in  Chau- 
tauque  that  it  was  in  Suffolk.  And  above  all  they 
wished  to  have  as  few  appeals  as  possible.  These 
multiplied  appeals  have  become  a  perfect  nuis- 
ance. If  they  were  to  have  a  county  court  at  all, 
why  does  not  some  gentleman  propose  a  feasible 
plan  for  the  same.  Let  us  elect  in  each  county  a 
judge  who  shall  discharge  the  duties  of  a  Surro- 
gate,hold  a  court  of  common  pleas  and  hold  the  gen 
eral  sessions  with  two  justices  of  the  peace.  That 
would  be  as  good  a  county  court  as  you  could  have. 
Mr.  P.  again  asked  gentlemen  to  submit  their  plans 
for  a  county  court.  One  had  suggested  the  election 
of  a  first  judge  who  shall  be  a  surrogate,  and  with 
two  justices  of  the  peace,  hold  general  sessions. — 
This  struck  him  as  the  least  objectionable  and  as 
creating  the  least  additional  expense.  It  is  pro- 
posed  by  some  to  give  the  surrogate  a  salary,  tube 
fixed  by  the  supervisors.  He  knew  no  objection 
to  that.  But  the  gentleman  from  Herkimer  objects 
to  this  as  a  one  man  court.  We  have  such  courts 
now.  The  justices  courts  are  one  man  courts. — 
There  are  the  circuit  courts,  which  are  one  man 
tribunals.  Let  any  man  go  into  a  circuif  court 
and  then  into  our  county  courts,  where  five  men 
are  perched  up  for  ornament,  (and  very  pretiy  or- 
naments they  are,  some  of  them,)  and  he  will  be 
satisfied  that  the  circuit  judge  will  do  more  in  one 
week  than  the  others  can  in  four.  No  one  would 
propose  to  pay  all  five  judges  large  salaries,  and 
unless  you  did,  you  could  not  get  competent  men. 
Mr.  P.  then  examined  the  plan  submitted  by  his 
colleague  {Mr.  MARVIN).  This  he  thought  the 
best  plan  for  a  county  court,  if  we  were  to  have 
one.  You  could  afford  to  give  the  presidentjudge 
a  good  salary,  and  would  thus  get  a  good  man. — 
His  colleague  (Mr. MARVIN)  had  proposed  to  have 
a  president  judge  to  hold  the  common  pleas  in  five 
or  six  counties.  The  gentleman  from  Herkimer 
(Mr.  LOOMIS)  had  opposed  this.  But  by  this  plan 
you  could  get  able  men  to  hold  these  circuit  courts, 


687 


(in  this  district,  at^least)  and  pay  him  a  fit  salary; 
and,  with  two  justices  of  the  peace,  he  would 
transact  the  other  business.  But  if  you  come  to 
have  one  of  the  four  judges  of  the  supreme  court 
I'd  lowing  the  other  judge  round  in  the  circuit 
courts,  you  will  have  trouble  ;  and  thus  have  suits 
commenced  in  two  courts  at  once.  It  is  better  to 
make  him  a  jud^e  of  supreme  court  at  once,  and 
not  a  mere  district  judge  of  the  common  pleas. — 
There  will  be  another  saving  of  time  and  expense 
in  this  way.  All  the  cases  of  assault  and  battery 
can  be  sent  down  to  the  place  where  they  origi- 
nated ;  and  not  have  the  people  concerned  in  it 
brought  all  the  way  across  the  country,  which  has 
also  been  a  very  great  nuisance. 

But  when  the  judiciary  committee  had  got  their 
report  drawn  out  for  a  district  court  of  common 
pleas,  with  a  President  judge  to  be  elected  in 
each  of  the  eight  judicial  districts,  they  saw  at 
once  that  this  president  judge  might  as  well  be 
called  a  judge  of  the  Supreme  Court,  because  in 
each  of  these  districts  four  judges  of  the  Supreme 
Court  are  to  be  elected,  and  if  more  judical  force 
is  necessary,  then  add  it  to  the  Supreme  Court. 
Why  call  one  of  the  judges,  elected  in  a  district, 
a  president  judge  of  common  pleas  and  send  him 
to  the  different  counties  of  the  district  to  hold  the 
courts  of  common  pleas,  and  the  next  week  allow 
one  of  the  supreme  court  judges,  elected  in  the 
same  district,  to  follow  him  and  hold  the  circuit 
court  in  the  same  counties.  The  committee  in 
looking  over  the  whole  matter,  concluded  that  it 
would  be  better  to  have  but  one  set  of  judges,  and 
call  them  judges  of  the  Supreme  Court;  have  all 
civil  suits  commenced  in  that  court,  where  the 
cost  is  no  mor:!  than  in  a  county  court,  and  where 
the  rules  ^nd  forms  ot  proceedings  will  be  the 
same  throughout  the  State.  In  this  way  one  ap- 
peal, at  least,  can  be  saved,  and  in  addition  to 
that,  the  number  of  appeals  in  his  judgment,  will 
be  less  from  the  decision  of  a  judge  of  the  su- 
preme court,  holding  a  circuit,  than  from  that  of 
a  judge  of  the  common  pleas. 

Mr.  P.  examined  the  objections  to  the  plan  re- 
ported by  the  committee,  arguing  that  they  were 
invalid.  Country  judges  were  now  paid  large 
sums  of  money,  for  fees,  when  the  services  might 
as  well  have  been  rendered  by  the  justices  of  the 
peace.  The  amounts  paid  to  these  county  judges 
for  holding  courts  are  not  by  any  means  the  total 
expense.  He  read  the  items  of  a  single  case,  that 
had  been  handed  to  him  within  a  few  days,  where 
a  county  judge  bound  over  some  parties  in  a  riot 
case.  He  thus  made  out  the  following  bill  for 
services  : — 

Attendance  25  cents;  4  oaths,  50;  orders  for  24  warrants 
and  warrants  for  24,  $12, $12  75 

Subpoenas  for  20  writs  $5;  attendance  on  return    25; 
subpoenas  for  20  writs  $5; 10  25 

Swearing  42  witnesses  $5  25;  drawing  and  engross- 
ing 2(1  lolios  of  depositions  $7  50 12  75 

Attendance  and  orders  that  17  defendants  give   secu- 

my  S,50;  22  recognizances  5,50 14  00 

;ice  and  orders  that  10  witnesses  give  securi- 
ty $5;  ID  recognizances  2,50 7  50 

Attendance  and  orders    to  discharge  7  defendants, 
without  hail 3  gy 

Attendance  and  orders  to  discharge  17  defendants 
pn  giving  bail  8,60;  do.  !()  witnesses  5 13  50 

One  da}  :s  attendance  on  examination 2  00 

$76  25 


This  bill  was  audited  by  th<^  supervisors  at 
$31  25  ;  and  he  hud  another  bill  for  8  day's  ser. 
vices,  of  $141  00,  which  was  audited  at  $75. 

Mr.  J.  J.  TAYLOR:  Was  that  for  a  single  day's 
services  ? 

Mr.  PATTERSON  knew  nothing  about  it,  ex. 
cept  what  appeared  on  the  face  of  the  bill. 

Mr.  TAGGART  wanted  to  know  if  that  judge 
had  ever  been  indicted? 

Mr.  PATTERSON  could  not  tell. 

Mr.  BROWN:  What  in  God's  name  was  the 
man  about  when  he  made  those  charges  ? 

Mr.  PATTERSON  :  It  appears  by  the  bill  that 
he  was  examining  and  binding  over  some  indivi- 
duals charged  with  a  riot.  He  could  not  see 
what  use  there  was  in  having  5  judges  to  run  up 
bills  like  the  one  he  had  read.  Mr.  P.  spoke  of 
other  duties  now  thrown  upon  county  judges, 
whic^he  thought  had  better  be  dispensed  with. 
Such  were  appeals  from  the  acts  of  road  commis- 
sioners, &c.  Why  should  a  judge  go  down  from 
his  bench,  and  go  out  into  the  wonds,  and  say 
which  side  of  a  hill  a  road  is  to  go.  If  two  judg- 
es are  to  be  elected  in  each  county  to  sit  with^the 
judge  of  the  supreme  court,  to  hold  courts  of  oyer 
and  terminer,  they,  with  the  surrogate,  might 
hear  certioraris  from  Justices  courts,  and  transact 
such  local  business  as  is  now  done  by  the  county 
judges.  But  he  would  not  like  to  see  a  county 
court  having  original  civil  jurisdiction  in  any 
county  in  the  State.  He  was  oppqsed  to  a  county 
court  of  original  jurisdiction  in  any  and  every 
form  and  shape,  and  he  hoped  that  such  courts 
would  never  spring  up  in  any  part  of  the  State, 
except  the  delegation  from  New-York  desired 
such  an  one,  and  then  he  should  not  object  to  al- 
lowing them  to  have  it  in  their  own  county.  The 
gentleman  from  Genesee  (Mr.  RICHMOND,)  had 
discovered  in  the  3d  section  a  provision  which 
would  allow  the  legislature  to  appoint  168  exam- 
iners in  chancery.  He  (Mr.  P.)  did  not  believe 
the  same  discovery  could  have  been  made  by  any 
other  gentleman  in  the  Convention.  The  article 
provided  distinctly  that  the  judges  who  decide  a 
cause  shall  hear  the  testimony,  and  the  power 
given  io  the  legislature  had  no  reference  to  the 
appointment  ol  such  officers  as  examiners  in  chan- 
cery. There  was  no  such  provision  in  the  report. 
He  hoped  no  other  bugbear  like  this  would  be 
found  in  the  report  of  the  judiciary  commitlee. 

Mr.  STETSON  said  we  could  not  discuss  this 
proposition,  to  create  a  local  county  court,  with- 
out also  discussing  the  plan  for  organising  the 
higher  courts,  reported  by  the  committee.  He 
regretted  that  we  were  compelled  to  go  into  this 
question  now,  and  he  wished  the  honorable  mover 
(Mr.  O'CoisroR.)  could  have  yielded  to  the  general 
wish  of  the  convention,  to  have  this  proposition 
deferred  until  .we  should  have  considered  and 
settled  the  organization  of  the  higher  courts. 

[Mr.  O'CONOR  said  he  must  interrupt  the  gen- 
tleman, for  he  did  not  wish  to  occupy  the  posi- 
tion of  having  refused  to  accede  to  the  general 
wish  of  the  Convention — that  he  thought  this  was 
the  right  time  to  submit  the  amendment,  tor  the 
purposes  he  had  in  view.] 

Mr.  STETSON  said  he  meant  no  assault  or  re- 
flections upon  the  gentleman,  (Mr.  O'CONOR,) — 
perhaps  he  had  better  said  that  in  his  opinion  it 
was  unfortunate  for  the  question  itself,  that  we 


688 


were  compelled  to  act  on  it  at  this  time  ;  for  a 
^t  now  stood  many  would  oppose  it,   and  yet  h 
believed  that  all  parties,  before  we  got  througl 
would  be   constrained   to   organise  local  cour 
with  some  sort  of  jurisdiction.     It  was  unfortu 
nate  that  we  were  thus  precipitated  into  the  dis 
cussion,  as  the  majority  of  the  committee  regarc 
ed  the  proposition  as  hostile  to  their  plan,  in  res 
pect  to  the  higher  courts.     For  himself,  he  wish 
ed  to  have  a  local  caurt,   between  justices  of  th 
peace  and  the  Supreme  Court,  but  not  one  hos 
tile  to  the  plan  of  the  committee,  or  which  woul 
in  any  respect  disturb  the  objects  which  the  com 
mittee  desired  to  accomplish.     The  local  court 
,  he  spoke  of,  should  have  jurisdictionbnly  of  mat 
3  to  which   the  jurisdiction   of  the   suprem 
yourt  could  not  be  brought;  and  which  could  no 
safely  be  entrusted  with  justices  of  the  peace. — 
He  agreed  with  the  committee  fully,  that,^o  fa 
as  we  could,  we  should  have  but  one  court ;  tha 
every  cause  of  sufficient  magnitude  to  be  tried  i 
a  court  of  record,  had  better  be  tried,  ^f  possible 
by  a  judge  of  the  Supreme  Court,  than  by  one  o 
a  lower  grade ;   for  the  better  the  judge  the  fewe 
the  errors  to  be  corrected,   and  it  was   more  eco 
nomical  too,   in  time  and  money.     He  would  saj 
that  he  believed  the  Supreme  Court  Judges  ough 
to  try  all  the  causes  originally  commenced  in  th( 
common  pleas.     It  was  due  to  the  mass  of  peo 
pie,   who  were    occasionally  forced  to   litigat< 
in  the  higher  courts  for   the  smaller  sums   tha: 
they   should  be   provided   with  judges   able  as 
those  who  administered  justice  for  wealthy  suit- 
ors.    But   he   believed   there   would    be  a  vas 
amount  of  business,  such  as  now  proceeded  fron 
courts  of  justice  of  the  peace,  to  which  the  Su- 
preme Court  could  not  be  brought,  without  over- 
whelming that  court. 

The  report  of  the  committee  provided  for 
State  Court  of  Appeals,  a  Supreme  Court  and 
courts  of  justices  of  the  peace.  It  seemed  to  be 
contemplated  that  all  trials  would  be  in  one  ol 
the  last  two.  The  gentleman  from  New- York, 
(Mr.  O'CONOR)  proposed  a  local  county  court. — 
He  (Mr.  S.)  knew  the  object  of  that  gentleman 
was,  to  provide  it,  if  it  was  adopted,  with  a  pre- 
siding judge,  who  should  have  a  circuit  of  seve- 
ral counties,  and  in  that  aspect  it  was  hostile  to 
the  system  of  the  committee,  by  which  the  jud- 
ges who  sat  on  the  bench  of  the  Supreme  Court 
were  enlarged  so  that  they  should  try  all  the  cau- 
ses; but  he  (Mr.  S.)  should  not  favor  this  local 
court  from  any  such  hostile  motive.  Now,  when 
the  question  was  put,  shall  we  organize  a  local 
court,with  some  sort  of  jurisdiction?  bethought 
no  one  could  wisely  answer  no,  unless  he  was 
certain  that  he  could  demonstrate  that  the  courts 
provided  in  the  report  could  certainly  do  all  the 
business,  including  that  he  had  described  as  pro- 
ceeding from  justices  courts.  For  himself  he 
would  say,  that  he  sadly  feared  that  the  gentle- 
men who  are  opposed  to  the  local  courts,  have 
overrated  the  capabilities  of  the  organization  of 
the  higher  courts,  or  underrated  the  amount  of  bu- 
siness they  will  have  to  perform.  What,  then,  is 
the  amount  of  business  now  required  to  be  done  in 
the  courts  ?  or  rather,  in  the  first  place,  how  does 
the  judicial  force  you  proposed,  compare  with 
that  we  now  have?  You  propose  to  create  a  court 
of  appeals  of  eight  judges;  a  supreme  court  of 


thirty-two  judges,  (but  four  of  these  help  make 
the  eight  which  form  the  appeals,)  leaving  for  the 
purpose  of  his  argument  only  28— in  all  36. 

The   only  others  are  justices  of  the    peace,  as 
heretofore. 

We  have  now  in  (he  court  of  errors,  not  form- 
ing part  of  other  courts,  thirt}. two  judges,  the 
Senators;  three  judges  of  the  supreme  court  j  one 
chancellor;  three  assistant  chancellors  ;  eight  cir- 
cuit and  equity  judges;  and  two  hundred  and 
ninety-five  county  judges — besides  the  recorders 
of  cities — making  in  all  three  hundred  and  forty- 
two  judges.  He  would  say  here,  in  advance,  to 
revent  rising  impressions,  that  he  had  no  inten- 
tion of  guaging  the  capacity  for  despatch  of  the 
two  systems,  by  a  mere  comparison  of  numbers — 
he  wa.«  aware  that  the  better  disposition  of  the 
force,  as  proposed  by  the  committee,  would  make 
such  a  comparison  all  but  ridiculous.  He  would 
proceed  to  show  another  result. 

He  would  say,  that,  in  his  opinion,  from  the 
manner  we  wer«  organizing  the  supreme  court, 
gentlemen  would  be  disappointed  if  they  expected 
to  detail  any  portion  of  the  court  of  appeals,  to 
aid  the  supreme  court,  in  their  duties  at  the  dis- 
trict terms  or  in  the  trial  ot  causes.  He  believed 
that  court  would  have  to  do  all  it  could  perform, 
and  far  more  than  was  required  of  the  present 
court  for  the  correction  of  errors.  In  his  opinion 
eight  of  the  thirty. six  judges,  would  be  engaged 
all  the  while  in  the  couit  of  appeals.  Now  the 
supreme  court  was  to  be  divided  into  eight  parts, 
iij  eight  several  districts,  with  three  judges  in 
each  district,  to  form  a  bench  at  the  terms  in  their 
listrictsj  and  the  question  arose — how  much  of 
heir  time  will  it  requite  to  do  the  business  at 
hese  terms,  in  law  and  equity? — for  it  is  settled 
hat  they  are  to  exerci&e  the  joint  jurisdiction. 

He  was  afraid  that  this  subject  had  not  receiv- 
d  quite  sufficient    attention,  for  since   the  report 
had  been  made,  a  distinguished  and  able  member 
if  {hat  committee  had  inquiied  ot  him,  if  he  (Mr. 
»  )  did  not  think  tour  terms,  of  a  week  each,    in 
'ach  district,  would  be  sufficient  to  do  up  all  the 
>usiness.     He  then  thought  it  was  quite  too  short; 
ml  since  he   had  given  some   attention  to  the  sta- 
istics  of  business,  he  had  come   to  a  conclusion, 
equiring   vastly    so   much  more    time  for  those 
erm    duties,  that  he  feared   this  point  had    not 
»een  sufficiently    considered.       The  ancients  and 
he  moderns  had  been  discussed  at  great  length — 
earned  ly  discussed — and  possibly  in  that  we  had 
verlooked,  slightly,  the    practical    instruction  to 
e  derived  from  dull  and  uninteresting   statistics. 
If  the    reports  irorn  the  clerks  of  the  supreme 
ourt,  of  the  amount  of  business  placed  upon  the 
alendars  of  that  court,  as  consolidated  by  the  se- 
ed committee  in  document  No. 45,  is  to  be  relied 
n,  then  the  judicial  force  proposed,  will  be  not 
merely    questionable,   but.  sadly  deficient-       But 
liere  was  an  exaggeration,  unintentional  in  that  re- 
ort,  (yet  still  believed  to  be  a  truth    by  the  pub- 
c,)  that   reflected   unmerited   reproach  upon  the 
haracter  of  the  state,   for  unexampled    litigation. 
nterrogatofieshad  been  addressed  to  those  cleiks, 
nd  they  had  returned  answers  giving  in  separate 
ems  the  number  of  causes  that  had    been  placed 
;i  the  calender  of  that  court,    for  each  term  dur- 
ig  two  and   :i  half  years,  ending  with  May    term 
ast.     The   Report  seemed   to  show    that  in  that 


680 


time  0~>73  c.iuses  had  been  brought  before  that 
court  lor  argum-Mit. 

Mr.  JORDAN7  asked  if  they  had  not  made  a 
mistake  by  adding  all  together1? 

Mr.  STETSON  said  ho  was  about  to  explain 
it,  in  the  manner  implied  by  the  question.  The 
causes,  werc.the  aggregate  of  all  the  causes 
•il  on  ithe  calendar  during  ten  consecutive 
terms,  and  there  were  four  terms  in  each  year. — 
They  were  mostly  the  same  causes,  which  not 
•being  argued  for  a  number  of  terms,  were  count- 
ed, once,  twice,  three,  and  up  to  eight  times, 
over,  lie  said  a  very  aged  and  distinguished 
member  of  this  body  had  asked  him,  referring  to 
this  aggregate  which  had  gone  forth  to  the  public, 
if  he  was  s.\varo  that  there  was  more  litigation  in 
the  state  of  New  York  alone,  than  in  the  United 
Kingdoms  of  Great  Britain,  Scotland  and  Ireland. 
.Mr.  S.  said  he  was  happy  to  say,  that  1718,  was 
much  nearer  the  number  actually  placed  on  the 
calendar  in  that  two  and  a  half  years,  than  the 
frightful  number  in  possession  of  the  public.  He 
got  at  it  in  this  way  ;  it  appeared  that  1053  causes 
were  actually  argued  and  decided  in  that  time, 
and  065  were  left  unargued  at  the  close  of  May 
term  last,  making  in  all  1718  in  two  and  an  half 
years.  Taking  those  for  the  last  two  years  only, 
it  appeared  that  721  was  the  number  annually 
placed  on  the  calendar,  and  389  the  average 
number  which  was  actually  argued  each  year. — 
Now,  no  one  complained  of  a  want  of  industry  and 
patient  hard  labor  in  the  judges  of  that  bench, 
and  it  appeared  that  400  causes  a  year,  with  a 
proportional  quantity  of  special  term  or  non  enu- 
merated business,  was  all  that  could  be  reasona- 
bly asked  o'  three  able  and  industrious  judges. 

H-ie,  thesi,  we  had  a  standard  by  which  to  mea- 
sure the  fdpability  of  a  bench  of  three  judges,  lor 
a  single  district.  It  is  important  now  to  know 
what  will  be  the  whole  number  of  such  causes  in 
tiie  Shite  They  were  now  annually  over  700, 
and  he  hud  not  the  slightest  doubt  that  at  the  end 
oi  five  y^ais,  they  would  rise  to  lull  1000  peryear; 
giving  io  each  district  annually  125  causes,  on  the% 
Jaw  side  alone,  and  a  proportional  quantity  of  non. 
enumerated  and  chamber  duties.  How  much 
tiuu!  would  thisiequue?  It  appeared  that  one 
cause  and  one-third  of  a  cause,  with  a  due  pro- 
portion of  incidental  business,  was  all  that  ;i  bench 
of  three  judges  could  patiently  hear  argued,  and 
decided  with  carefully  written  opinions,  in  one 
day.  That  is  the  raiio  of  despatch,  for  the  law 
side;  for  there  were  not  over  300  working  days 
in  tiie  year,  vtnd  tiie  average  number  of  causes  ac- 
tually ,trg  ied  arid  disposed  ot,  did  not  exceed  400, 

'-'he  present  system  had  failed,  more  on  account 
of  the  system,  which  had  remained  stationary 
since  1S21  5  whilst,  population,  commerce  and 
litigation  had  out-grown  it,  than  on  account  of 
th>;  men.  And  \<,u  will  fail  in  getting  better 
judges  for  your  thiity-two,  than  you  have  now. — 
If  ho  stood,  solitary  and  alone,  he  would  neverthe- 
less express  the  belief,  that  before  ten  years  had 
gone  by,  the  popular  cry  would  HO  up—  "  Oh,  that 
we  had  such  judges  as  filled  the  courts  before 
IS-lOj''  as  we  now  hear  the  cry,  "  Oh,  that  we  had 
sueii  judges  as  sat  upon  the  bench  belure  1821."— 
Sir,  (_s,iid  Mr.  S.)  there  are  various  causes  which 
combine,  just  at  this  moment,  to  render  the  judg- 
es ot  our  higher  courts  slightly  unpopular;  arid 


the  chief  one  was,  that  they  were  compelled  to 
bear  (o  some  extent,  the  defects  of  the  present 
system;  but  no  human  power  could  aveit  the 
delays  ofjustice,  without  an  addition  to  the  pres- 
ent force.  There  were  other  causes,  but  they 
were  all  evanescent,  and  short  lived,  whilst  the 
good  thev  had  done  would  not  soon  be  forgotten. 
"  The  good  that  men  do,  lives  after  them:"  and 
it  will  not  be  long  after  we  shall  have  parted  com- 
pany wiih  I  he  present  judges  in  law  and  equity, 
before  we  shall  look  buck  upon  their  learned 
opinions,  and  indefatigable  industry,  with  pride, 
mixed  with  regret,  thaf  we  are  getting  a  quality 
not  quite  so  good.  There  would  then  be  no  in. 
crease  of  despatch,  or  diminution  of  business,  by 
means  of  the  new  organization,  only  as  more  force 
wo'ild  accelerate  despatch. 

Next,  what  is  the  amount  of  business  on  the 
chancery  side.  Here  we  had  no  statistics  such 
as  had  been  drawn  from  the  law  side,  but  we 
knew  there  was  more  force  now  employed  in  the 
bench  duties  of  chancery,  than  on  the  law  side. 
There  was  the  chancellor  and  his  three  assistants  ^ 
and  the  circuit  judges  in  vacation,  performed  more 
bench  duties  on  the  chancery  side  than  they  did 
of  the  law,  and  we  knew  that  department  was 
further  behind  than  the  supreme  court.  To  sav 
nothing  of  the  new  duties  which  we  proposed  to 
throw  upon  the  judges,  in  taking  the  evidence  in 
chancery,  heretofore  taken  by  examiners,  we 
could  believe,  with  great  certainty,  that  the 
amount  of  business  for  the  bench  at  term,  from 
the  equity  sides,  would  in  point  of  time  be  fully 
equal  to  that  of  the  law. 

We  would  then  within  five  years  have  one  hun- 
dred and  twenty-five  causes  on  the  law  side,  and 
one  hundred  and  twenty-five  causes  on  the  equity 
side ;  making  in  all  two"  hundred  and  fifty  causes, 
with  their  proportion  of  non-enumerated  and 
chamber  business,  for  the  calendar  of  each  district 
term  every  year.  This  at  the  former  ratio  of  one 
and  one-third  cause  per  day,  would  require  one 
hundred  and  eighty-seven  and  a-half  working 
days,  and  travel  would  increase  it  to  two  hundred 
days,  equal  to  eight  months  in  the  year.  Now 
twenty-four  judges  were  required  to  hold  these 
terms  in  the  eight  districts,  and  eight  months  of 
the  year  was  equal  to  sixteen  of  these  twenty* 
four.  Thus  eight  of  the  thirty-six  were  required 
constantly  in  the  court  of  appeals,  and  time  equal 
to  sixteen  at  the  terms  in  the  districts,  and  we 
might  presume  that  at  least  two  of  the  whol« 
number  would  be  unable,  from  sickness  or  domes- 
tic reasons,  from  doing  duty  at  all.  This  made 
twenty-six,  and  there  were  only  ten  left  or  at  most 
(if  all  were  able  to  work)  twelve,  to  conduct  the 
trials  which  now  required  eight  circuit  judges, 
two  hundred  and  ninety-five  county  judges,  and 
also  to  take  the  evidence  in  chancery  which  now 
required  a  force  of  examiners  for  which  over 
$16,000  was  annually  paid  ;  and  which  item  alone, 
estimating  the  labor  by  the  compensation,  and 
putting  a  judge  in  that  respect  on  a  level  with  an 
examiner,  would  require  two-thirds  of  this  re- 
maining force.  We  had  only  these  twelve  to  do 
all  this,  and  to  which  the  gentleman  from  Oneida 
(Mr.  KIRKLAND)  superadds  a  large  amount  of  the 
business  now  done  by  the  masters  in  chancery. 

He  did  not  believe  twelve  judges  could  do  any 
such  labor,  and  even  if  he  had  over-estimated  the 

61 


690 


duties  at  the  district  terms  equal  to  four  of  the 
judges,  he  would  say  he  still  doubted  whether 
those  added  to  the  twelve,  so  as  to  make  sixteen, 
could  perform  all  this  accumulated  labor,  of  cir- 
cuit trials,  oyer  and  terminer  trials,  common  pleas 
trials,  general  session  trials,  and  trials  of  chance- 
ry causes,  with  examiners'  labors  added. 

What  was  the  comparative  amount  of  business 
done  at  the  circuits  and  in  the  common  pleas  ? 

He  said  that  there  were,  estimating  those  coun- 
ties which  had  not  made  returns  by  those  which 
had,  twenty-two  hundred,  causes  of  all  sorts,  ori- 
ginal issues,  appeals  and  certioraris,  actually  tried 
and  argued  in  the  common  pleas  of  the  State,  for 
the  year  1845  ;  and  which  occupied  782  days. — 
Upon  a  like  estimate,  there  were  1250  causes  ac- 
tually tried  at  the  circuits  in  the  same  year,  re- 
quiring in  the  comparative  ratio  of  time,  653  days. 
The  time  given  was  that  stated  for  the  actual  re- 
turns of  950  causes  tried  at  the  circuits  in  on- 
ly a  portion  of  the  counties,  and  1031  in  the  com- 
mon pleas.  He  had  estimated  the  number  of 
causes  which  should  come  from  the  whole  state, 
but  had  not  enlarged  the  time,  for  the  ratio  would 
be  the  same. 

Mr.  BASCOM  inquired  if  he  included  the  420 
original  cases  in  the  common  pleas  of  New  York  ? 

Mr.  STETSON  said  he  included  the  general 
aggregate,  both  of  common  pleas  trials  and  cir- 
cuit trials  in  New-York ;  the  rule  of  proportion 
would  be  about  the  same.  Now,  the  length  o(\ 
trial  did  not  always  depend  upon  the  amount  in 
controversy — it  depended  more  upon  the  nature 
and  character  of  the  cause,  than  the  amount. — 
The  judge  cannot  always  cut  short  the  trial, 
though  he  may  see  clearly  how  the  cause  may 
terminate.  Although  the  amount  in  dispute  may 
be  small,  yet  if  the  case  involves  a  question  of 
fraud,  and  counsel  continues  to  introduce  new 
evidence  to  change  the  colorable  appearance  of 
the  other  evidence,  the  judge  will  not  stop  him 
and  summarily  send  the  cause  to  the  jury,  so  as 
to  nave  a  short  trial,  but  will  patiently  hear  him 
out.  It  was  so  in  cases  of  slander,  whether  ag- 
gravated or  light ;  of  colorable  and  doubtful  cases 
of  seduction,  and  breaches  of  promise  to  marry, 
as  much,  and  more,  than  when  they  were  hein- 
ous and  demanded  heavy  damages ;  it  was  so  of 
all  cases  where  the  facts  were  intricate  and  dis- 
puted, without  regard  to  the  amount ;  and  appeal 
cases  in  their  very  nature  were  always  long  causes, 
and  always  would  require  much  time,  whether 
tried  in  the  Pleas  or  at  the  circuit.  This  busi- 
ness, then,  from  the  Common  Pleas  and  General 
Sessions,  though  it  would  be  done  with  greater 
dispatch  by  tne  abler  judges  of  the  Supreme 
Court,  would  require  time  in  amount  equal  to 
the  business  which  is  now  done  at  the  circuits ; 
and  when  we  come  to  superadd  the  Chancery 
trials, 'and  the  labors  of  the  Examiners,  he  could 
not  but  believe  this  new  system  was  like  to  be 
overwhelmed,  unless  we  provided  some  relief  in 
advance. 

He  would  say  that  this  business  of  taking  the 
evidence  in  chancery  would  alone  require  a  vast 
foice.  He  liked  the  change  ;  the  proie^-ion  had 
paid  dearly  for  taking  it — over  $16,UOO  a  year, 
.but  now  the  popular  cry  had  gone  forth  from 
Chautauque  to  Clinton — Irom  Moritauk  Point  to 
St.  Lawrence — that  this  evidence  shorld  no  lon- 


ger be  thus  taken,  but  should  be  heard  and  taken 
down  by  the  judge  at  the  trial,  and  that  the  bill 
should  be  paid  out  of  the  treasury,  and  not  by  t!,e 
party.  He  acquiesced,  indeed  he  liked  (he  change, 
but  we  ought  not  to  underrate  the  rnatrniiude  of 
the  labor,  and  shut  our  eyes  to  the  I  act  lhat  it 
would  require  much  patient  tune  of  the  judge. 
It  was  true  we  could  get  rid  of  half  the  use  less 
and  irrelative  testimony  now  written  down  by  ex- 
aminers, but  alter  all  it  would  take  rnurh  time. 
Will  the  gentlemen  of  the  judiciary  committee 
stand  up  in  their  places  and  say,  that,  in  then- 
opinion,  this  duly  alone  would  not  require  tinu- 
equal  to  eight  of  these  judges,  all  the  year  round  ? 
That  was  only  one  judge  in  place  of  all  the  ex- 
aminers in  each  senate  iiis'r:ct  ;  and  it  did  seem 
to  him  that  was  not  a  hi^h  estimate.  1C  he  was 
right,  then  in  the  most  favorable  point  of  view  we 
would  have  but  eight  judges  left  to  perform  all 
the  duties  of  the  present  circuit  judges  at  trials, 
as  now  conducted  by  them,  with  the  immense  su- 
per addition  of  common  pleas  and  general  sessions. 

His  conclusion  was,  that  whilst  he  would  do 
all  in  his  power  to  recommend  and  support  the 
general  plan  of  organization  proposed  by  the  com- 
mittee, yet  he  must  express  the  conviction  he  felt 
that  here  was  a  scant  pattern  of  cloth  for  the  coat 
to  be  made  out  of  it.  But  he  would  be  met  here, 
as  he  had  been  met  out  of  :1oors,with  the  suggestion 
that  this  report  provided  for  an  expansion  of  judges 
every  ten  years.  It  is  now  divided  into  eight 
parts — into  so  many  parts  that  many  gentlemen 
have  already  expressed  the  firm  conviction  that 
you  will  have  no  Supreme  Court;  that  was  the 
opinion  of  the  learned  member  from  New-York 
(Mr.  O'CONOR),  of  the  gentlemen  from  Chautau- 
que (Mr.  MARVIIV),  of  the  gentleman  from  Gene- 
see  (Mr.  TAGGART,)  and  he  knew  that  numer- 
ous members  had  fears  on  this  point  which  had 
not  been  expressed  on  the  floor  of  this  house. — 
For  himself,  he  thought  he  could  go  with  the 
committee  as  far  as  they  had  now  gone  in  divi- 
ding this  court  into  parts — the  plans  of  these 
other  gentlemen  contemplated  a  division  of  their 
courts  into  parts — and  thus  aiding  him  in  sup- 
porting these;  and,  indeed,  a  division  of  the 
bench  into  parts,  seemed  to  be  inseparable  from  a 
requisite  which  all  insisted  on, — that  the  judge 
who  sat  upon  the  bench  at  term  should  also  try  the 
cause  with  the  jury.  This  being  so,  we  could 
not  have  an  old  fashioned  supreme  court,  such  as 
we  now  have;  but  he  thought  we  had  carried 
expansion  and  divisibility  to  the  utmost  tension 
of  the  unity  of  the  court,  when  we  had  divided 
it  into  eight  parts — if  we  went  further,  our  su- 
preme court  would  become  but  a  deputation,  a 
delegation,  of  county  courts,  making  up  a  su- 
preme bench,  by  a  delegation  of  one  from  each 
county  court!  Even  now  he  would  say  the  pre- 
sent plan,  carried  no  further,  would  not  be  much 
better  than  a  supreme  court  made  up  of  any  of 
these  circuit  judges,  in  any  of  the  districts.  Be- 
ware, then,  of  further  expansion,  or  you  will,  if 
you  have  not  already,  overwhelm  your  court  of 
appeals  ! 

Tuw  great  couf*t,  then,  is  not  likely  to  be  able 
to  do  all  the  business,  and  if  it  do  not,  where  do 
you  propose  to  leave  the  bone  and  muscle  ot  the 
country  ?  If  the  covering  proves  too  short  for  the 
body,  you  will  pull  it  up  and  leave  the  feet  cold  ; 


691 


and  he  would  say  that  the  bone  and  muscle  of 
which  he  spoke,  were  the  feet  of  the  country  in  no 
degraded  sense;  for  they  are  made  to  carry  above 

the  whole  superstructure  that  rests  on  labor. 
If  \our  system  fails  to  take  care  of  all.  it  will  drop 
the  litigants,  tor  the  smaller  sums  at  the  present 
circuits  and  in  the  common  pleas,  to  whom  you 
now  promise  the  protection  of  your  supreme  court 
judges,  into  the  vortex  of  the  justices  courts. — 
iie  knew  the  committee  did  not  mean  this;  but 
he  had  endeavored  to  show  a  necessity  in  the  vast 
amount  of  business  to  be  done  and  the  inadequa- 
cy of  tht;  force  provided  for  a  county  court,  which 
should  at  least  administer  the  laws  in  small  crim- 
inal cases,  and  to  that  class  of  cases  which  pro- 
ceeded from  justices  courts.  He  did  not  desire  to 
preserve  the  present  organization  of  the  comnion 
pleas — he  would  adapt  if  to  the  duties  he  had  just 
suggested,  and  have  it,  not  as  now,  an  unsuccess- 
ful lival  of  the  supreme  court,  but  a  court  to  re- 
lieve it  of  duties  which  cannot  be  wisely,  because 
not  economically,  brought  within  the  jurisdiction 
of  the  supreme  court  for  jury  ti  ial.  He  believed 
the  plan  of  a  county  court  recommended  by  the 
gentleman  from  Herkimer  (Mr.  LOOMIS)  in  his 
minority  report,  the  best  adapted  to  do  this  duty. 
That  contemplated  the  election  of  a  number  of 
county  justices,  who  instead  of  holding  a  cen- 
tral court,  tor  the  trial  of  appeals  and  certio. 
rans,  when  so  many  witnesses  and  parties  were 
detained  as  mere  spectators  of  other  trials  at  great 
expense,  should  act  severally  and  allow  one  of 
them  to  go  into  the  part  of  the  county  where  the 
cause  arose,  and  hear  and  decide  the  cause  there, 
before  a  local  jury,  drawn  from  a  box,  and  not 
picked  up  by  the  constable,  under  any  bias  to  a 
party.  Appeals  and  certioraris,  as  now  conduct- 
ed, were  not  a  remedy  for  the  injustice  which 
was  done  in  justices'  courts,  and  which  always 
would  be  done  under  the  limited  and  peculiar  or- 
ganization of  those  courts.  He  knew  very  well 
what  aott  of  men  were  justices  of  tne  peace;  and 
he  would  say  that  in  his  own  county,  and 
some  01  her  counties  within  his  knowledge, 
a  great  many  of  them  were  honest,  intelligent  men, 
folly  capable  of  administering  the  laws  upon  the 
Common  pleas  bench,  and  if  trials  could  always  be 
had  before  such,  and  they  had  larger  powers,  such 
asbeli>ii!<  to  higher  courts,  justice  could  be  safely 
and  efficiently  administered  therea— but  to  give 
them  these  larger  powers, would  be  constituting 
numerous  county  courts  ;  and  with  the  system  as 
it  is,  the  difficult  and  hard  cases  are  not  brought 
lit-fure  the  capable  and  fair  justice  he  had  describ- 
ed ;  but  when  ihe  caoe  required  nursing,  the  per- 
son having  charge  of  it,  too  often  sought  out  a  jus 
tice  who  from  ignorance  was  incapable  of  admin- 
istering the  law,  or  \N  as  led  by  the  plaintiff  or  his 
attorney,  so  that  all  doubtl'ul  questions  would  be 
decided  in  his  favour.  It  was  from  this  source  that 
most  of  the  appeals  and  certioraris  proceeded. — 
He  thought  when  a  defendant  was  sued  before  a 
juitice  of  that  sort,  for  an  amount  exceeding  $30 

i,  he  ou^rit  to  have  the  right  lo  say,  "  I  will 
not  be  tried  in  this  court,  but  elect  to  be  tried  be- 
fore the  county  judge,  who  is  to  come  into  this 
town  to  he.ir  such  trials,  and  also  new  trials  when 
they  have  been  ordered/  He  knew  many  thought 
the  true  remedy  was  to  increase  the  jurisdiction  of 
justices  to  $250 ;  but  that  was  worse  than  the  dis- 


ease. Without  a  local  county  court  to  correct  its 
errors,  or  try  the  causes  originally,  when  the  de- 
fendant should  elect  so  to  be  tried  ;  for  without 
that,  certioraris  and  appeals,  the  present  mischief 
would  be  indefinitely  increased,  and  block  up 
even  the  supreme  court  ;  or  if  refused  altogether 
leave  parties  to  be  devoured  by  remediless  injus. 
tice  in  justices  courts.  Some  gentleman  seemed 
to  think  it  was  an  easy  duty  to  administer  laws  in 
all  cases  of  only  a  hundred  or  two  dollars,  and  that 
every  one,  if  honest,  could  without  experience  and 
great  attention,  perform  the  duties  of  that  court. 
But  he  would  ask  the  many  honest  and  intelligent 
gentlemen  who  belonged  to  this  convention,  who 
never  before  sat  in  a  deliberative  body  and  stud- 
ied  parliamentary  laws,  how  they  would  succeed 
in  performing  the  duties  of  the  chair,  in  deciding 
the  questions  of  order  which  arose  here  ?  The 
rules  for  decision  are  all  contained  in  this  book, 
(holding  np  Jefferson's  Manual) — it  is  only  a  lit- 
tle thin  book,  and  its  decisions  have  principally 
been  known  lor  centuries.  Yet  he  would  venture 
to  say,  that  most  of  us  would  feel  embarrassed  and 
uncertain  of  the  rule,  if  suddenly  called  on  |o  per- 
form the  duty.  And  yet  the  law  of  the  justices 
courts  was  far  more  difficult  and  intricate;  and 
was  spread  through  large  and  numerous  volumes, 
and  any  mistake  of  a  thought,  or  of  a  just  construc- 
tion was  liable  to  produce  error,  and  a  resort  to 
a  higher  court  for  review.  It  was  a  delusion  to 
suppose  that  justice  could  be  administered  without 
a  wise  and  capable  judge,  who  knew  what  the 
law  was.  ^But  we  must  have  justices  courts  from 
the  necessily  of  the  case  ;  and  it  was  our  duty  to 
provide  a  means  for  correcting  the  errors  which 
arose  there,  cheaper  and  more  economical  than 
the  present  remedies.  He  thought  a  full  and  fair 
first  trial  in  the  original  case,  when  it  could  be 
iransferred  to  a  county  judge,  and  new  trials  in  the 
neighborhood  before  the  same  judge,  would  efiect 
a  great  reform. 

Mr  O'CONOR  said,  as  he  had  proposed  this 
amendment,  and  was  frequently  referred  to,  it 
would  seem  to  be  proper  that  he  should  state  his 
object  in  presenting  it,  and  the  views  he  enter- 
tained on  the  general  question.  He  had  not  here, 
lofore  made  any  remarks  on  the  general  scope  and 
structure  of  the  system,  presented  by  the  commit 
tee  on  the  judiciary;  he  should  therefoie  avail 
himself  of  this  occasion  to  speak  somewhat  at  large 
on  that  syslern;  arid  before  he  sat  down,  would 
urge  upon  the  committee  the  retention  of  county 
courts  in  their  piesent  legal  character,  having  ori- 
ginal jurisdiction  in  suits  between  party  and  party, 
and  to  be  so  newly  organized  and  officered  as  to 
give  them  the  vigor  requisite  to  enable  them  to 
perform  that  large  portion  of  the  judicial  business 
of  the  State,  originating  between  residents  of  the 
same  county.  It  might  he,  as  the  gentleman  fiom 
Clinton  (Mr.  STETSON)  had  said,  that  the  report 
of  the  majority  would  certainly  command  the  as- 
sent of  the  Convention;  and  that  it  was  but  a 
waste  of  time  for  him  to  present  his  views  in  op- 
position to  the  system  reported  But  conceiving, 
as  he  did,  that  this  report  destroys  nearly  all  the 
good  features  in  our  existing  and  past  judicial  sys- 
tems, and  furnished  nothing  that  can  be  deemed 
an  equivalent,  he  should  consider  himself  want- 
mg  in  duty  to  his  constituent,  if  he  did  not  at 
least  enter  his  objections  to  it,  and  show,  fo 


6<J2 


the  best  of  his  ability,  his  objections  to  it. — 
They  were  told  at  an  early  stage  of  the  proceed- 
ings of  this  Convention,  that  it  would  be  a  sad 
business  it,  instead  of  going  into  committee  of  the 
whole,  and  there  setilmg  preliminarily  certain 
important  principles,  we  should  refer  particular 
matters  to  select  committees.  It  was  urged  that 
if  we  did  so,  we  should  virtually  make  those  com- 
mittees  the  Convention;  that  when  a  strong 
committee  of  respectable  gentlemen,  was  sent 
out  charged  with  any  particular  subject,  they 
were  sure  to  letnrn  with  an  esprit  du  corps, 


banded  together  to  carry   it, 
force  altogether   irresistible. 


and 
For 


presenting   a 
his   part,    he 


gave  but  little  weight  to  that  argument,  and  voted 


against  those   who    urged 


perhaps    because 


he   was    unskilled   in    legislation.      He   suppos- 
ed   a   report    would   come  in  merely  as   a   basis 
of  action  for  the  Convention,   and  that  even    the 
members  of    the    committee    would    themselves 
treat    it.    merely   as   a    basis  of  action.     But  per- 
haps he  was   in   error.     Perhaps   it  was  true  that 
when  a  report  was  made  and  thus  returned  to  the 
Convention, gentlemen  could  not  be  induced  to  alter 
•A  word,  a  line,  or  a  letter,  because  it  was  the  report 
ot  their    committee.     He  certainly   should  great- 
ly regret  the  vote  he  had  thus  given   at  the  outset 
of  our  proceedings,  if  such  should  prove  to  be  the 
case.   He  begged  to  say,  however,  whilst  heshonld 
call  the  report  the   report  of  a  majority  of  the  ju 
diciary    committee — while    he  would   not  dispute 
the  right    of  any  to  apply  that  title  to    it — he  felt 
bound  to  refer  to  the  proceedings  of  the  committee 
so  far  as  was    necessary  to   deprive,  the  report  of 
some  claims  to   consideration  which  its  advocates 
have  put  forward  for  it.     It  was  but  a  day  or  two 
since  a  gentleman,  a  member  of  the  judiciary  com- 
mittee, commented  at  lar-jre  on  the  vast  amount  of 
lab>T  which  that  committee,  for  two  months,  have 
devoted  to  this  report,  leading  us  to  conclude  that 
it  was  the  result  of  those  labors, and  had  ultimate- 
ly received  the  deliberate  sanction  of  nine  mem- 
bers of  that  committee.     This  the  gentleman  gave 
the  Convention  to  understand,  or  his  remarks  lead 
to  such  an  understanding.     The*  gentleman  might 
not  have  intended  to  produce  the  impression  that 
this  report,  in  its  length  and  breadth,  was  the  re- 
sult ot    such    h-bor.  or    that   it   had    received  the 
conc"rrence  ot  nine  members  <f  that  committee 
Now,  he  would  take  occasion  to  say  that  the  com- 
mittee held  forty-two  mee'ings.    On  reaching  the 
forty. first,  theie  was  a  report   piepared  which  ne- 
ver yet  hiis  seen  the  light,  each  branch  of  which 
received  the  sanction  of  a  majority,  and  the  whole 
of  which  had  that  of  six  member-,  while  six  oth- 
ers dissented  and    prevented  i,s    approval.     Then 
c.i me  the    report    in   question,  w  bich   is  no  more- 
like  the  report  referred  to,  than  the  famous  report 
o;  committee  number  five,  on  which  the  Conven- 
tion commenced  iis  labors.     That  report  had  been 
prepared,  an  had  been    observed  by  the  gentleman 
from  Orange,   (JVlr.  BROWN)  by  two   members  of 
ihe  eou-.mniee,  and,  on  piivale   application,  it  re- 
ceived privately  the  signatures  of  seven  members 
of  the  committee.     It  wan  also  true  that  at  a  sub 
sequent  meeting    this  report   leceived  a  mere  lor- 


mal  sanction. 
It  was  useless 


He  did  not  attend  that  meeting.-— 
for  him  to  do  so,  the  seven  signa- 


That  paper  had  in  this  way  received  a  formal 
sanction  from  nine  or  ten  members ;  and  perhaps 
'.t  would  have  received  his  own  signature,  if  he 
fiad  been  there.  But  it  was  merely  in  order  that 
.t  might  reported  as  a  basis  of  action  for  this  Con- 
vention. It  was  not  a  report  regularly  eked  out 
rom  the  labors  of  thirteen,  at  forty  odd  meetings* 
and  finally  agreed  to  by  nine.  It  was  got  up  by 
a  few,  and  others  were  induced,  one  by  one,  pri- 
vately to  approve  of  it,  that  some  basis  of  action 
might  be  presented — after  the  committee  had  been 
wearied  out  by  the  difficult  labor  of  trying  to  agree 
on  some  system.  He  did  not  complain  of  this  ; 
3ut  he  took  leave  to  say  that  the  report  was  enti- 
tled to  no  particular  weight  as  having  the  sanc- 
tion of  the  committee,  or  being  the  result  of  the 
deliberations  of  the  committee. 

Mr.  JORDAN  enquired  if  the  gentleman  from 
New-York  intended  to  say  that  the  report,  as 
draw7n  up  and  presented  to  the  Convention,  was 
not  presented  to  the  committee  when  every  one 
was  present  but  the  gentleman  from  New-York 
himself,  read  over  section  by  section,  amended, 
and  finally  received  the  sanction  of  the  majority 
of  the  committee  who  signed  it? 

Mr.  O'CONOR  remarked  that  he  had  already 
admitted  all  that.  After  it  received  seven  signa- 
tures in  private,  it  was  agreed  to  by  others,  one 
gentleman  approving  the  slight  alterations  by 
proxy ;  for  he  was  on  the  North  River  at  the  time. 
But  what  he  objected  to  was  that  this  should  be 
received  as  the  result  of  the  labors  and  delibera- 
tions of  the  committee. 

Mr.  LOOMIS  asked  the  gentleman  from  New- 
York  to  point  out  any  one  principle  that  wras  riot 
contained  in  it,  but  which  was  in  the  general  re- 
port previously  made  by  the  committee,  except  as 
to  the  organization  of  the  court. 

Mr.  O'CONOR:  In  that  respect  there  was  a 
most  material  deviation ;  the  very  court  of  appeals 
now  in  the  report,  was  deliberately  rejected  in  full 
committee,  and  no  attempt  ever  made  to  stir  that 
decision.  The  original  report  contained  forty- 
seven  sections,  and  was  he  believed,  longer  than 
the  whole  of  the  present  constitution.  It  con- 
tained a  court  of  common  pleas  in  each  county, 
with  president  judges  for  districts  embracing  many 
counties.  He,  however,  freely  admitted  that  not- 
withstanding the  circumstances  he  had  referred 
to,  this  report  was  entitled  to  be  discussed  on  its 
merits  and  treated  as  a  majority  report.  So  he 
had  intended  to  treat  it.  He  had  always  called 
it  the  report  of  a  majority  of  the  committee,  and 
acquiesced  in  its  being  so  called,  but  he  did  not 
wish  to  have  it  passed  before  the  Convention 
as  the  result  oi  the  labors  of  thirteen  gentle- 
men ;  nor  to  have  minority  reports  dispraised 
by  contrast  on  the  ground  that  no  one  agreed  with 
the  other.  What  time  had  they  to  make  an  agree- 
ment ?  The  new  majority  report  was  signed  one 
afternoon  and  presented  the  next  morning  ?  He 
had  made  these  explanations  to  correct  the  re- 
marks of  the  gentleman  from  Columbia  (Mr.  JOR- 
DAN), and  also  that  the  report  might  stand  on  its 
own  merits,  without  the  aid  of  the  praise  that  was 
given  to  it  on  account  of  the  great  amount  of  pre- 


tuies   formed  \\    majority,  and    the  general  scope 
of  it,  at  least,  was  prejudged,  signed  and  settled. 


vious  deliberation  bestowed  upon  it,  when  it  was 
not  the  result  ot  those  deliberations.  It  might 
however  be  unfortunate  that  we  should  have  had 
any  discussions  about  what  took  place  in  com- 


693 


mittee.  He  should  not  have  spoken  of  it,  but  for 
what  had  fallen  from  the  gentleman  from  Colum- 
bia on  the  same  subject,  giving  the  report  inure 
credit  than  ir  was  entitled  to  receive,  and  throw- 
ing some  odium  on  those  who  did  not  agree  to  it. 

•  ich  then  for  the  origin  of  this  report,  and 
now  he  had  no  more  to  say  on  that  subject.  He 
was  sure  that  every  gentleman  who  had  anything 
to  do  with  bringing  it  here  was  animated  by  hon- 
orable motives,  and  the  report was  to  be  regarded 
as  the  honest  result  of  the  fair  and  impartial  judg- 
ment of  the  two  or  three  gentlemen  who  prepared 
it,  than  any  one  of  whom  no  gentleman  could  be 
found  on  this  floor  entitled  to  more  respect.  He 
had  however  many  and  serious  objections  to  their 
system.  He  thought  it  would  be  impossible  to 
do  the  business  of  the  state  under  such  a  system/ 
and  that  what  was  done  would  be  badly  done.  It 

i  n  substance  and  effect  a  system  of  district 
courts,  without  any  supreme  court,  having  origi- 
nal jurisdiction.  Again,  it  dispenses  with  the 
court  of  errors,  and  substitutes  for  it  and  for  the 
supreme  court,  a  newly  devised  court  of  appeals 
as  a  court  of  last  resort — a  court  wholly  unlike 
either  of  those  courts — a  kind  of  mongrel  court 
between  the  two  we  have  had,  without  the  merits 
of  either.  If  he  understood  it  aright,  the  courts 
we  had  prior  to  1821  were  perfectly  unexception- 
able. All  agreed  in  commending  that  judicial 
system.  It  fell  however  on  account  of  the 
prejudices  which  had  been  excited  against 
the  judges,  for  their  real  or  supposed  political 
sins,  as  members  of  the  council  of  revision. — 
Then  we  had  justices  courts  as  we  have  now,  ex- 
cept that  the  jurisdiction  was  not  so  high.  We 
had  common  {.leas  or  county  courts  as  now,  with 
the  exception  ihat  the  senior  judge  held  for  life. 
We  had  al^o  a  supreme  court  of  original  jurisdic- 
tion and  also  of  appellate  jurisdiction — represent- 
ing the  English  king's  bench — the  supreme  foun- 
tain of  justice,  and  possessing  jurisdiction  over 
all  officers  who  are  subject  to  mandamus  or  any 
of  the  prerogative  writs:  that  jurisdiction  by 
which  ail  officers  are  kept  within  their  appropri- 
ate spheres  of  action,  and  compelled  to  execute 
their  duties  therein.  We  had  an  ultimate  court 
of  appeals,  consisting  of  the  senate,  aided  -by  the 
chancellor  or  the  judges  of  the  supreme  court. 
That  court  was  admirably  framed  for  the  devel- 
opement  of  the  principles  of  liberty  established 
by  our  revolution,  and  to  be  enjoyed  under  new 
methods  of  government ;  and  for  tiie  modification 
of  our  borrowed  jurisprudence,  by  adapting  it  to 
this  new  state  of  things.  It  was  emphatically  the 
court  of  the  people,  composed  of  individuals  se- 
lected trorn  the  various  sections  of  the  country; 
coming  together  and  making  a  fair  representation 
of  the  general  mind  of  the  whole  people,  it  was 
the  common  remark  of  the  most  eminent  techni- 
cal J.t  •  best  court  in  the  state 
— that  it  was  hourly  infusing  new  blood  into  tiie 
law,  and  invigorating  and  sustaining  our  juris- 
prudence, which  without  its  aid  might  perhaps 
luve  become  too  contracted  by  the  influence  oi 
precedents  made  under  a  monarchy.  With  these 
tribunals  erected  by  the  constitution  of  1777,  no 
fault  had  ever  been  found,  except  one.  And 
•what  wad  that  fault  ?  Vv  l,y  that  the  members,  be- 
ing a  portion  of  the  legislative  department,  were 
not  the  proper  persons  to  judge  of  the.  constitu- 


tionality of  a  law  in  whose  passage  they  had  taken 
part.  From  our  legal  history  it  was  shown  that 
the  court  of  errors  had  never  pronounced  any 
law  unconstitutional.  In  this  objection  there 
was  theoretical  soundness,  and  experience  has  ve- 
rified the  theory.  But  that  was  ttye  only  objec- 
tion to  that  court.  From  its  large  numbers,  it: 
waa  favorable  to  the  development  of  free  princi- 
ples, and  from  the  manner  of  the  election  of  its 
members,  it  was  sure  to  present  a  high  grade  of 
intelligence  In  1S21  it  was  thought  necessary 
to  strike  at  the  supreme  court,  and  therefore  the 
number  of  its  judges  was  reduced,  and  the 
circuit  system  introduced.  The  system  thus 
introduced  justified  the  observation  made  on 
this  floor — that  the  court  was  composed  of  two 
distinct  parts,  one  portion  of  which  had  no  liv- 
ing, practical,  active  knowledge  of  the  peo- 
ple or  the  existing  relations  of  society,  while 
the  other  had  greatly  diminished  opportunities 
of  knowing  the  law.  This  was  the  main,  if  not 
the  only  error  committed  in  1821.  With  these 
lights  of  experience  before  us,  what,  in  the  re- 
arrangement of  our  judicial  system  ought  now  to 
be  our  ruling  principle  of  action?  Ought  it  not 
to  be  to  hold  on  to  that  which  is  good  and,  which 
has  been  proved  by  time  and  experience  to  be 
good  in  our  existing  institutions,  and  to  part  with 
or  modify  that  only  which  the  same  tests  have 
proved  to  be  bad — that  only  which  has  failed  in 
the  working  of  our  system  ?  Surely  every  sensi- 
ble man  would  agree  that  this  was  our  true 
course.  It  was  not  right  to  depart  entirely  from 
the  lights  of  experience — the  lessons  of  wisdom 
— and  to  devise  an  entirely  new  machine  of  untried 
powers  and  qualities,  and  set  it  to  work  on 
speculation.  At  least  we  ought  not  to  do  so 
without  being  very  sure  that  it  was  competent  to 
perform  the  duties  of  the  old  one.  In  this  view 
of  the  course  to  be  pursued,  he  deemed  it  all-im- 
portant that  we  should  still  have  a  supreme  court 
having  some  character  ot  unity,  so  that  it  should 
be  really,  as  well  as  in  name,  the  supreme  court 
of  the  State  of  New  York,  and  that  it  should  rep- 
resent in  the  reports  which  are  to  be  issued  of 
its  decisions,  the  weight  and  power  and  majesty 
of  this  whole  people.  Hitherto  we  have  always 
had  such  a  court,  but  shall  we  have  such  a  court 
under  this  proposed  judicial  system?  Most  cer- 
tainly not.  The  proposition  is  to  have  judges 
el-'-  cted  in  eight  districts  or  sections  of  the  state, 
each  set  of  them  to  hold  a  court  within  the  dis- 
trict. By  this  we  shall  have  eight  local  district 
courts.  Nothing  more  in  fact,  than  enlarged 
courts  of  common  pleas.  And  how  are  we  to 
ascertain  the  decisions  of  those  courts  ?  Were 
they  all  to  issue  reports  ?  Certainly  riot,  for  that 
would  overwhelm  us  at  once.  VVe  shall  then 
know  nothing  of  these  decisions,  and  hence  the 
law  of  one  district  will  not  be  the  law  of  another, 
and  in  no  respect  can  they  be  placed  in  point  of 
dignity  and  respectability  on  the  footing  of  a  su- 
preme court  which  is  a  unit — which  represents 
tiie  whole  state  and  sits  for  the  whole  state. — 
He  hardly  knew  how  these  local  district  courts 
were  going  to  discharge  the  business  of  a  su- 
preme court  of  the  State  of  New  York.  They 
would  answer  very  well  as  courts  of  common 
picas,  in  which  a  man  might  commence  a  suit 
ior  debt  and  follow  it  up  to  judgment,  but  when 


694 


a  question  arose  that  was  not  of  a  local  character, 
he  did  not  see  how  they  could  be  made  to  an- 
swer. Suppose  occasion  to  occur  for  a  manda- 
mus to  the  directors  of  the  Hudson  and  Erie 
Railroad  Company,  which  has  its  location  in  no 
single  district,  to  which  of  these  district  supreme 
courts  was  application  to  be  made  for  the  writ  ? 
He  knew  that  it  might  be  said  that  a  provision 
might  be  introduced  to  meet  such  a  case.  But 
nevertheless  other  cases  of  like  difficulty  would 
arise,  which  cannot  be  anticipated.  Suppose  one 
had  to  apply  for  a  mandamus  to  the  comptroller 
of  the  State — to  which  of  these  courts  would  he 
apply  ?  He  supposed  to  that  district  court  in 
which  the  Comptroller  lived.  [A  VOICE — to  any 
of  them!]  That  would  hardly  do.  He  might 
call  upon  the  Comptroller  to  grant  him  a  certain 
right,  and  the  gentleman  from  Erie  might  apply 
for  the  same  right,  and  the  gentleman  from  Onei- 
da  might  also  apply  for  the  same.  He  could 
grant  it  to  one  only.  Each  of  the  disappointed 
might  wish  to  apply  for  a  mandamus,  and  if  he 
could  apply  in  his  own  district,  the  comptroller 
might  have  a  mandamus  commanding  him  to  grant 
the  same  thing  to  each  of  several  parties,  from 
different  Supreme  courts  sitting  in  different  dis- 
tricts of  the  State.  Nothing  like  this  could  arise 
if  they  had  one  supreme  court  as  heretofore.  If 
the  power  was  confined  to  the  district  court  of  the 
district  in  which  the  officer  to  be  coerced  resided, 
it  might  answer  where  there  was  only  one ;  but 
how  would  it  be  managed  where,  as  in  railroad 
companies  and  boards  of  officers,  the  parties  to 
be  coerced  resided  in  different  districts  ?  Again, 
how  would  these  district  courts  operate  even  in 
common  suits  ?  The  plaintiff  commencing  a  suit 
in  the  Supreme  Court,would  lay  his  venue  in  ©ne 
of  the  counties  of  a  particular  district,  and  would 
lay  it  where  he  pleased.  If  a  defendant  had 
ground  to  change  the  venue  and  carry  the  cause 
within  a  different  district,  where  must  he  apply  ? 
Gentlemen  would  tell  him  that  application  must 
be  made  to  the  district  where  the  venue  was  laid. 
Well,  suppose  the  judges  were  elected  in  and  be- 
longed to  and  locally  confined  within  respective 
districts,  was  it  altogether  fair  for  him  to  lay  his 
venue  in  the  city  of  "New  York  when  suing  a  gen- 
tleman in  Chautauque,  and  compel  the  defendant 
to  make  his  application  to  the  judges  of  the  New 
York  district,  for  a  change  of  venue.  The  gen- 
tleman from  Chautauque  might  think  if  his  mo- 
tion for  a  change  of  venue  was  denied,  that,  great 
injustice  had  been  done.  This  very  evil  was  well 
guarded  against  when  the  superior  court  of  the 
city  of  New  York  was  » created.  They  were  not 
allowed  to  send  their  original  process  out  of  the 
county  of  New  York  and  arrest  a  man;  but  when 
gentlemen  came  to  the  city  of  New  York,  process 
could  be  served  on  them  there,  and  they  could 
thus  be  made  liable  to  have  the  action  tried  there, 
though  the  cause  of  action  arose,  and  the  witness- 
es for  the  defence  all  resided  in  another  county. 
The  legislature,  however,  gave  to  the  supreme 
court  the  power  to  change  the  venue.  They  did 
not  entrust  that  power  to  the  local  judges. 

Mr.  BROWN :  Does  the  gentleman  suppose 
that  the  judges  are  to  be  local  ? 

Mr.  O'CONOR  proceeded.  I  speak  on  the  sup- 
position that  they  are  to  be  local.  I  purpose  to 
show  presently  that  the  evils  to  result  from  their 


nterchanging,  for  the  purposes  designed  by  the 
committee,  Would  be  still  greater.  To  attempt 
the  attainment  of  those  ends,  a  totally  unendura- 
D!C  degree  of  rambling  and  perambulation  must 
e  imposed  upon  the  judges,  literally  excluding 
hem  from  all  the  ordinary  enjoyments  of  life — 
converting  them,  as  it  were,  into  wanderers  and 
vagabonds;  and  yet  the  objects  aimed  at  would 
in  no  appreciable  measure  attained.  He  con- 
ceived, upon  the  whole,  it  would  be  far  better  to 
ibrego  an  attempt  to  produce  unity  of  decision 
ay  an  interchange  and  circulation  of  the  judges 
jetween  the  different  eight  benches.  He  illus- 
trated his  position  by  examples  given  from  cases 
:hat  he  could  imagine  would  occur.  He  said, 
with  one  Supreme  Court  for  the  whole  State,  he 
could  attend  to  all  the  cases  he  might  commence, 
without  going  out  of  his  county,  except  on  the 
day  of  trial,  or  ever  being  called  by  a  bar-motion 
to  more  than  one  place  at  the  same  time.  Under 
this  new  system,  how  would  it  be  ?  All  bar-mo- 
tions, every  material  step  in  the  case,  requiring 
the  action  of  the  court  in  bane,  must  be  taken  in 
the  district  embracing  the  county  in  which  the 
venue  is  laid.  An  attorney  in  full  practice  would 
have  such  cases  in  several,  perhaps  in  every  dis- 
trict. How  would  he  attend  the  eight  different 
sets  of  terms,  held  at  the  same  time  and  in  differ- 
ent places  ?  It  would  be  impossible,  just  as  im- 
possible as  to  practice  at  one  time  in  several 
States  of  the  Union.  Both  the  prosecution  and 
defence  of  every  case  in  the  Supreme  Court  must 
therefore  be  conducted  in  future  by  attorneys  re- 
siding within  the  same  district.  It  would  be  im- 
possible for  counsel  to  practice  as  at  present,  in 
business  arising  in  different  portions  of  the  state ; 
and  equally  impossible  that  a  citizen  of  the  state 
should  have  himself  defended  from  any  assailant, 
wherever  residing  in  the  state,  as  now,  by  his  fa- 
vorite counsel,  who  best  understood  him  and  his 
business,  and  upon  whose  knowledge  and  earnest 
fidelity  he  could  rely  with  safety  and  confidence. 
To  exemplify  this,  he  would  ask  the  gentleman 
from  Orange,  who  was  acquainted  with  the  prac- 
tice, where  was  the  attorney  who  defended  his 
clients  in  eight  different  courts  of  common  pleas  ? 
Now  and  then  he  believed  gentlemen  were  ad- 
mitted in  a  couple  of  county  courts,  where 
the  counties  adjoined.  [A  gentleman  here  re- 
marked that  he  practiced  in  three  such  courts.] 
Well,  then,  the  gentleman  is  a  rarity.  [Mr. 
CROCKER  here  remarked  thai  lie  was  admitted  to 
four]  1  can  only  sav  that  the  gentleman  is  a 
greater  rariiy.  Mr.  O'C.  was  admitted  in  two, 
but  he  had  never  tried  more  than  a  single  case  in 
one  of  them.  A  gentleman  to  practice  in  eight 
districts  must  have  eight  offices.  He  continued 
for  some  time  to  il lustra! e  the  difficulties  attend- 
ing such  a  'practice  and  then  proceeded  to  notice 
! he  suggestion  that  the  judges  of  these  districts 
could  be  made  by  the  legislature  to  interchange, 
and  thus  many  of  the  evils  of  this  district  court 
system  would'  be  remedied.  How  otien  under 
such  a  system,  would  any  two  of  them  meet  du- 
ring their  judicial  term  of  eight  years?  The 
same  two  would  never  meet  a  second  time.- — 
But,  would  a  ii.ru  meeting  or  iwo  of  this 
kind  produce  tlmt  comparison  and  inter- 
change  of  opinion,  concurrence  of  judgment  and 
that  uniformity  of  decision,  which  was  attainable 


695 


in  a  court    having  a   moderate-  number  oi'j>. 
when  the  latter  have  oppurtuuitftesol  coming  1:011- 
tituiitlly  in   contact  with  earn  o  .her?     ii  Uuy  did 
interchange  wh;ii  operation  was  i:  to  have  on   ilie 
judtres  ihemselvt  s  ?      We   h.ue    fj'J    counties,   and 
judges  were  to  go  around  ai.d  interchange  in 
•Uiing  of  circuits  in  all  those  counties.     T,;t 
only  fair  way  of  making  this  interchange  was  for 
ibe  judges  each  io  hold  a  circuit  through  the  state 
before  they  came  bacx  io  hold  a  second    circuit  in 
th<irown,  and  thus  each  would    hold  f)b    circuits 
before  h--  held  a  second  in  his  own  vicinage.  Then 
as  to  the  b.uic  com  s  ;  each    judge    w(juld   be    u, 
his  own  distnct  one  eighth  pait  of  the  lime  devo- 
ted to  bench  duties  ;  the  other  seven  eighths    he 
must  be  absent  in    other  districts.     In    tins    way 
alone  can  be  produced  a  proper  circulation  ol  tins 
new    circulating    medium     in     legal   admim^lra 
tii.n.       No    man    who    had     the     proper    affec- 
tions   of  our    naiure    would    take    such    an    oi- 
rice,    ii    would     require    of    hiu.    so    much    ab- 
as to  deprive  him  of  all    the   erjoyments   ol 
home.     There  was  nothing  in  it  either   to  gratify 
pride  or  ambition      According  io  one  gentleman's 
views,  (Mr.  CHATFIKLD'S)  they  were  only    to   be 
l).iidsl,000,  or  at  the  most  ftl,500  a  year,  and  they 
were  all  to  be  on  a  dead  level  in  office.     He  asked 
what  sort  of  judges  were  they  to  get  by  such  a  sys- 
tem ?     Why  they  could  have    none  but    the  most 
inferior  grade  of  judges.     All  the  judges   were  to 
be  elected  in  districts,  and  yet  they  were  to  inter- 
change so  that  the  electors  would  only  have  their 
fuvn  judges  one-eighth  of  theyear.     What  induce 
ment  had  theelectots  to  trouble  themselves  much 
about  the  selection  ?     What,  would  they   gain   by 
i:  ?     Why    the  gentleman    they    would  elect  lor 
eitriit  years  th<  "  would    have    but    for  one;  the 
rest  of  the  term  he  would  be    wandering  about 
th>>    state;    and    to    get    one    portion    ot  it,  v\e 
')een    told,    it     was    necessaiy     to    go     inti 
Canada,  and    to    return  bv    the    same    way,    si 
that   justice    could    not    visit    it    during  a    wai 
with    our    strong    neighbor    Britain.       The    rii 
si    priiis    or    circuit    s\s;em     was    desirable    a 
an  auxiliary    to    the    studies    ol    the    bench. — 
But  if  was  riot  necessary  or  expedient  to  carry    it 
to  tliis  impracticable  and  oppressive  extent.     Car- 
ried t'i    a  moderate  extent  it  is  a  benefit.     But    io 
keep  i  he  judge  continu  liy  upon  the  ramble,  is  in 
espedientt  particularly  when  the  main    object,  m 
terchariije  of  opinion  and  uniformity  of  decision 
•.either    attainable,   nor    even    in  any  detrrei 
helped  by  it.     Carried  to  an  excess,  the  rambling 
•i)  is   unmitigated  injury.     The  jud.ue  elected 
in  Delaware  or  Orleans  is  not  th"  mo.-t  competed 
to  try  marine  cases  in  N-w  York,  with    which  he 
is  not  conversant.     The  New  York  jud^e    endea 
vonng  in  '"•  Old  Moriah"  to  try  a  cause  between  a 
miner  and  a  wood-chopper,  however  ably  arid  inv 
partially  he  might  preside,  would  from  his    igno 
ranee   of  the  veiy  terms   in    use,  excite  the  saint 
unfavorable  observations  upon  his  want  of  farnili 
a«iiy  v\irh    the  matter,  that  the    Delaware  judg 
would  from  the  dandy  juror  in  Now  Yoik,  by  hi 
want  (•!'  familiarity  with   maritime  transactions.-*- 
Thi'se  evils  musl  be  encoUnU-ied  to  secure    profi 
ciency    in    the    judges;  and  where  the  number    i 
few,  and  the  appointment  from    the   win <!<•    State 
tn-'v  shrink  into  insignificance,     But  with  an  arm) 
of  jMdges,  elected  in   districts,  f^r   short    terms 


vith  salaries  of  £  I, i  mi  i  or  <l,r,()(j  a  year;  each: 
ne  kept  almost  .., nsi, mi ly  on  the  ramble,  and 
mployed  in  that  which  he  least  understands,  we 
re  likely  to  have  an  administration  ot  justice  the 
ikeot  which  was  never  before  heard  of  in  any 
ivilr/.ed  coumry.  This  bringing  of  jusiice  home 
o  .-very  mati's  door,  of  which  wo  had  heard  so 
nucli,  was  not  practicable.  FQT  ail  combatants 
n  the  1-iW,  were;  noi.  next  door  neighbors.  We 
oiild  approximate  to  such  a  result,  but  nothing 
uore.  Our  svsiem  was  admirably  constructed 
iow  for  that,  through  our  justices  courts,  our 
:ounty  couns,  and  supreme  court.  Whether  the 
:utlmg  up  of  the  supierne  court  would  or  would 
lot  tend  to  the  convenience  of  counsel — whether 
.  would  tend  to  distribute  more  the  business 
vhich  now  fell  inlo  the  hands  of  a  few  lawyers 
iving  here  in  Albany — was  not  a  matter  pfoper  for 
he  consideration  of  ihis"  body.  The  question  was 
me  in  reference  to  the  interest  of  suitors— and 
viewing  the  matter  in  all  its  relations,  he  con- 
ceived i  hat  gieat  disadvantages  would  result 
o  suitois  from  thus  cutting  up  the  court,  and 
lothing  would  be  gained  but  a  very  slight  con 
venience  to  some  particular  counsel.  To  show 
iow  vain  the  dturt  to  bring  justice  home 

0  every  man's    door,    as   the    phrase    was    Mr. 
O'C.  supposed    the  case  of  the  stale  being  cut  up* 
into  eight  judicial  districts,  with  Newburgh  as  the 
seat  of  justice  for  one  ot  them— that  might  accorn 
modate  his  friend  from  Orange,  (Mr.  BROWJV)  who 
was  very  uel!  accommodated  already,  being  within 
six  houis  sieaming  of  Albany  01  New  Yoi  k  where 
the   supreme   court   sat    most   of  the  rime.     But 
would  his  inend   from  Essex  (Mr.   SIMMONS)  be 
accommodated  ?     Where   would  the  centre  of   his 
district  he    under    this  new   sys.ern,  ^nd    how  Jar 
would  he  have   to  travel  to  get    to  it?     [Mr.  SIM-) 
MOAS:  —  "About   as  fur   as   logo  to  Albany.  •']_* 
Hie  imth  was   all  those  south  of  Albany  down  to 
New  York,  and  for    one    hundred    miles  in  every 
other  direction,  were  actually  nearer  to  ihe  centre 
ot  justice,  as    the  supieme  court  was    now  organ- 
ized, than  most    of  the   inhabitants   of  other  set* 
iiuns    would  be    to  the   centre    ol  any  one    of  the 
proposed    clismcis.     True,   there    would  be  eight 
principal    places,    Troy,  Syracuse,   Poughkeepskl 
&c.,  would  be  particularly  blessed    by  having  the 
supieme  court  located  right  there,  and  the  people 
of  ihe  vicinage    would  have  all    the  advantages  of 
(his    beautiful   svstem.       Bur   {hose   living  "sixty 
BBiles  otf,  who  had  to    travel   sixty  miles,  and  nof 
pu-baps  by  steam  on  rail  roads  oroii'llu-  Hudson, 
would  be  about    as  far  from    justice  as   ever,  with 
iln-    additional    disadvantage   to   counsel  of  beint; 
noiihed  peihups  to  attend    on  the  same  day  teirns 
ot   the   supieme   court    held    in  the    most  "distant 
places.      He  wen!  on  to  urge  that  a  supreme  couit 

01  twelve   jud-cs,   four    of  them   sitting   jn  b;!nc, 
and  the  iest  on  the   circuit,  would  be  adequate  Io 
do  all    the    business    of  a  supieme   court  under  a 
well    orgamz-d    system — with    the    advantage    of 
nev.T  holding  a  term    at  more  than  one  place  at  a 
time,  and  their    small    number  bi  inking   them  to- 
Aether  often  enough  lo  produce  that  unity  ol  opin 
ion  and  d<  cision  \\hich  was   not  only  necessary  to 
the  safety  ot  the  suitor,  but    iffcdiopensably  neces- 
s;iry  r<>  preserve  thr  judicial  chaiacter  of  the  state. 
The  lirst.  unitormity  court  in  this  new  s}stem  was 
_tlie  court   lit'  appeals — answering  to  the  supreme 


696 


court  in  the  present  system.  The  effect  of  having 
this  court  of  appeals  the  only  uniformity  court, 
would  be  that  all  causes  actively  litigated  would 
go  there.  The  undying  spirit  of  litigation,  so 
characteristic  of  a  people,  free,  independent  and 
prosperous,  such  as  ours,  would  not  abide  by  riie 
decisions  of  tMi-se  rambling  district  judges.  They 
would  say  in  Essex,  for  instance,  when  one  of  our 
judges  from  the  city  came  up  there  to  try  causes, 
that  he  might  know  all  about  ships  and  maritim 
matters,  but  nothing  of  their  affairs.  And  was 
there  a  lawyer  there  who  believed  that  this  court 
of  appeals  would  suivive  for  eighteen  months  the 
duty  thus  thrown  upon  it?  Could  these  eight 
judges,  hear  any  more  causes  than  three?  Could 
eight  run  a  race  quicker  than  otie?  Or  could 
eight  hear  nrni  talk  faster  than  one? 

Mr.  LOOMIS  :  They  can  hear  as  many  as  thir- 
ty-five judges  in  the  present  court  of  Errors. 
^  Mr.  O'CONOR  replied  that  this  was  not  so — 
and  the  sad  mistake  was  in  abolishing  this  court 
and  substituting  nothing  like  it — in  abolishing 
that  court,  the  supreme  court  and  the  chancellor's 
court,  and  substituting  for  the  whole  three  this 
single  eight-judge  court,  all  of  whom  must  sit  to- 
gether ;  too  much  was  crowded  into  one  spot. — 
The  court  of  errors,  by  its  numerous  members  re- 
lieving each  other,  is  enabled  to  do  vastly  more 
business  even  of  the  small  portion  that  fell  to  it 
than  this  court  of  appeals  could,and  at  the  same 
time  preserve  a  fair  degree  of  uniformity.  But  most 
of  these  eight  judges  must  always  be  present — 
and  for  the  reason  that  they  were  to  perform  all 
the  judicial  duty  of  producing  uniformity,  now 
devolving  upon  the  supreme  court  and  chancel- 
lor; with  no  ulterior  appeal.  Being  the  first 
court  of  uniformity — almost  every  thing  will  go 
there  which  now  goes  to  those  two  courts  ;  and 
as  it  is  to  be  the  court  of  last  resort,  before  it  will 
be  made  the  final,  full,  elaborate,  protracted  ar 
guments  on  which  the  ultimate  destiny  of  a  cause 
was  to  be  determined ;  now  only  heard  in  the 
court  of  errors,  and  often  occupying  many  days. 
He  did  not  see  how  any  practised  lawyer  could 
hope  that  that  court  would  last  ?  You  might  sus- 
tain it  by  cutting  off  appeals  in  small  cases,  and 
making  it  the  rich  man's  court;  but  to  this  the 
people  would  not  submit,  and  if  this  was  not 
done,  he  humbly  insisted  that  the  court  could  not 
stand.  His  view  was  that  we  should  have  a  sys- 
tem substantially  preserving  the  great  features  of 
the  present — preserve  the  justices  court — also 
the  county  courts,  giving  them  a  good  organization, 
and  as  heretofore  original  jurisdiction  of  suits  be- 
tween party  and  party.  [Mr.  O'C.  here  gave  way 
lor  a  motion  to  rise  and  report  progress — and  the 
committee  rose.] 

Mr.  O'CONOR'  re-asserted  the  position  with 
which  he  closed  the  morning's  debate,  that  in  the 
constitution  of  1821,  and  its  predecessor,  was  em- 
bodied the  best  model  for  a  judicial  system,  and 
that  in  its  general  features  that  system  should  be 
preserved.  The  workings  of  that  system  had  de- 
veloped its  good  qualities,  and  revealed  its  im- 
perfections. With  the  lights  of  ample  experi- 
ence, we  could  now  re-construct  it  in  such  a  man- 
ner as  to  avail  ourselves  of  the  former  and  to  era- 
dicate the  latter.  We  could  avoid  the  inter- 
mingling of  legislative  and  judicial  duties,  which 
was  the  sole  error  of  1777.  We  could  avoid  the 


entire  separation  of  bench  and  circuit  duties, 

which  was  the  capital  error  of  1821.     We  could 
avoid  another   error,  of  which   the   foundations 
were  laid  in  the  constitution   of  182 1.     Improvi- 
dent legislation  had  degraded  our  county  courts. 
They  had  become  reduced  to  such  a  feeble  con- 
dition,  that  they  no  longer  commanded  public 
confidence,  and  consequently  all  the  common  law 
business  of  the  country,  above  the  jurisdiction  of  a 
justice  of  the  peace,  flowed  into  the  Supreme  court 
completely  checking  the  flow  of  justice  in  that 
tribunal.     These  were  the  only  defects  which  the 
working  of  our  system  had  developed — these  he 
would  eradicate.     But  he  would  preserve  the  sys- 
tem itself.     He  deprecated  the  idea  of  attempting 
this  untried  expedient,  so  novel  in  all  its   parts, 
framed  with  a  single  view  to  the  localising  of  ih* 
judiciary  power.     An  expedient  which,  whilst  it 
split  up  our  supreme  court,   and  deranged   the 
harmony  of  our  system,  diti  not  in   fact   increase 
the  convenience  of  courts  or  bring  justice  nearer 
home  to  the  citizen.     The  defects  of  the   county 
courts  constituted  the   real   impediment  to  the 
workings  of  the  Supreme  Court;    He  was  assured 
by  high  authority  that  that  court  was   occupied 
about  half  the  time  in  hearing  and  deciding  cases 
originally  commenced  there,  in  which  the   claim 
did  not  exceed  one  hundred  dollars.     Under  .an 
efficient  county  court  system,  these   cases  would 
have  been  tried  in  the  common  pleas,  and  few, 
very  few  of  them  would   ever   have   gone  up   by 
writ  of  error.     In  view  of  these  evils,   he  would 
not  destroy  the  court  whose  feebleness  had  brought 
this  oppressive  burthen  upon   the   higher  court; 
he  would  on  the  contrary  reinvigorate  it.     It  was 
this  excess  of  business  in  the  higher  courts,  not 
any  intrinsic  defect  in  our  judicial  structure,  nor 
any  fault  in  our  judges,  that  had  produced  all  the 
evils  under  which   we   are   suffering.     No  fault 
had  been  found   on   any  side   with   our  judges , 
they     had     long     performed     immense     labor; 
with     conceded     learning    and     ability.      The 
Court    of     Chancery,     or     a    separate     Tribu- 
nal had  been   unceremoniously  brushed    away, 
and  apparently  with  much   personal  satisfaction 
to  members  here  ;     but  all  would  admit  the  emi- 
nent ability  and  distinguished  worth  of  the  Chan- 
cellor.    His  ten  volumes  of  equity  decisions  form 
a  monument  of  his   great  learning   and   strong 
sense  of  justice  which  will  remain  as  long  as  ju- 
risprudence shall  find  admirers  among  men.     At 
this  day  his  judgments   command   the  esteem  of 
the  learned  throughout  the  union ;  and  long  after 
his  court,  himself,  and  the  dissatisfaction  of  the 
foiled  seeker  after  wrong,  shall  have  passed  away, 
the  memory  of  his  unparalleled  industry,  and  his 
singular  acuteness  of  perception,  will  remain  and 
command  the  applause  of  well-thinking  men. — 
He  insisted  that  we  were  called  upon  by  a  con- 
siderate regard  for  the   legal  reputation   of  the 
state,  for   the  preservation  of  uniformity  in   the 
law  and  for  the  safety  of  the  citizen,  not  to  adopt 
the  plan  of  cutting  up  our  supreme  court  into 
fragments.     Such  a  course  would   leave  us  with- 
out  any  regular   system   of  jurisprudence.     He 
conceived   that  we  ought  to  preserve  our  higher 
courts  ;   and  to  d6  this,  it  was   necessary  to   aid 
them  by  the  construction  of  competent  inferior 
courts.     The  .county  courts   should   be  retained 
w|ta   their  present  jurisdiction,  and  should  be 


697 


furnished  with  such  judges  as  would  render  them 
useful.  He  would  retain  their  jurisdiction  in  all  its 
legitimate  strength  and  integrity,  and  elevate  the 
character  of  their  judges.  This  might  be  done 
•in  many  ways,  the  surrogate  might  be  made  a 
judge  of  the  court,  it  might  be  declared  that  there 
should  be  in  each  county  one,  two  or  more  coun- 
ty judges,  referring  to  a  graduated  scale  according 
to  the  population  of  the  county.  They  might  be 
organized  in  this  way  only,  or  in  conjunction 
wfth  a  president  or  district  judge  system,  provi- 
ding one  or  more  judges  for  a  district  composed 
of  several  counties.  These  judges  might  try  the 
issues  ami  held  a  bane  court  or  argument  term  as 
often  as  requisite  in  each  county.  They  could  at 
t  he  same  time  try  issues  from  the  supreme  court 
and  thus  reduce  the  circuit  duties  of  the  supreme 
judges  and  relieve  small  counties  from  the  cost  of 
holding  courts  and  calling  together  juries  more 
frequently  than  was  necessary.  This  course 
would  give  a  strong  county  court,  —  one  comman- 
ding as  much  respect,  as  the  mis-named  Supreme 
Court  or  courts  of  the  judicial  committee.  This 
would  be  bringing  justice  home  to  every  man's 
door  as  far  as  practicable;  it  would  give  a  purely 
local  court  for  those  disputants  who  were  near 
neighbors,  leaving  to  those  farther  apart  the 
cerxtral  or  supreme  court  -By  an  arrangement 
thus  reducing  the  business  of  the  supreme 
court,  Mr.  O'C.  believed  that  from  ten  to  thir- 
teen judges  could  perform  all  the  duties  now 
devolving  upon  the  supreme  court  and  the 
chancellor.  Four  might  form  a  quorum,  and 
by  a  proper  division  of  labor  in  bane  and  cir- 
cuit duties,  and  in  the  examination  of  cases,  they 
could  easily  despatch  the  business  of  the  court. 
If  found  necessa-y  there  might  be  in  session  dur- 
ing the  whcle  year  a  court  in  bane.  There  ought 
to  be  an  ulterior  court  ot  appeals  beyond  the  su- 
preme court,  essentially  similar  to  our  present 
court  of  errors.  We  had  always  had  such  a  court 
and  in  a  great  state  like  ours  it  is  indispensable. 
That  court  is  required  for  these  peculiar  cases  of 
great  difficulty,  presenting  great  and  novel  ques- 
tions which  will  occasionally  arise  under  any  ju- 
dicial system,  where  the  ordinary  courts  after  the 
fullest  argument  and  scrutiny  fail  to  satisfy  the 
public  or  the  parties  in  interest.  It  ought  to  be 


pulsion  of  his  tenant.  We  need  a  court  of  this 
kind,  but  it  is  not  afforded  to  us  under  the  pro- 
posed system.  Reverting  to  the  precise  point 
before  the  committee,  Mr.  O'C.  remarked  that  his 
object  in  the  amendment  proposed  by  him  was  to 
have  the  original  county  court  of  our  country. 
This  would  enable  our  system  to  work, — a  large 
portion  of  the  business  would  be  done  in  the  coun- 
ty court — nearly  all  the  rest  would  be  done  in  the 
supreme  court,  and  the  residue,  the  great  cases, 
involving  vast  amounts,  vast  principles  and  caus- 
ing a  great  consumption  of  time  by  protracted 
and  laborious  argument,  would  fall  to  the  share 
of  the  court  of  last  resort.  The  advocates  of 
the  new  system,  who  are  of  course  enemies  to 
the  county  courts,  perceiving  that  an  attachment 
to  the  latter  exists  in  this  convention,  have  sought 
to  satisfy  that  sentiment  in  form,  whilst  they  de- 
feated it  in  substance.  They  offer  a  new  device, 
called  a  county  court,  shorn  of  all  its  ancient 
powers  and  honors  as  a  court  of  original  jurisdic- 
tion between  party  and  party.  All  that  business 
is  needed  for  the  newly  devised  octagonal  Su- 
preme Court.  What  is  this  newly  devised  coun- 
ty court  ?  It  is  a  petty  local  court,  intended  to 
try  appeals  from  justices,  apprentice  cases,  &c. ; 
to  perambulate  through  the  towns  ;  to  go  wherev- 
er it  can  find  a  j  ustice  of  the  peace  to  devour.  It 
is  a  petty  cormorant,  going  about  the  county  to  de- 
vour the  little  business  properly  belonging  to  the 
justices.  It  is  to  have  no  jurisdiction  of  civil 
suits,  except  of  the  cases  belonging  to  the  justices' 
courts,  which  have  undergone  some  preliminary 
It  seems  designed 
If  it  is  to  be  de- 
jurisdiction  of  suits 
between  party  and  party,  what  kind  of  judges 
will  be  placed  in  it  ?  Surely,  we  shall  not  have 
a  higher  grade  of  judges  when  we  lower  the  rank, 
power  and  dignity  of  the  court.  The  present 
county  court  has  fallen  into  discredit  because  the 
employment  of  an  inferior  grade  of  judges 
has  reduced  its  civil  business,  and  the  re- 
duction of  business  reacting,  has  prevented 
the  employment  of  able  judges.  Are  we  to 
make  a  respectable  court  «by  diminishing  and 
degrading  its  power  and  jurisdiction  ?  Sure- 
ly not.  The  judges  of  the  newly  contrived  coun 


investigation  in  that  tribunal, 
merely  to  destroy  that  court, 
dared  unfit  to  have 


_____      _____  J  ,_o  _____________  rf 

composed  in  part  of  judges  from   the   supreme  I  ty  courts  will  be  the  same  grade  of  men  who  have 
court  and  a  considerable  number  of  -'lected  judges,   destroyed  the  county  courts  and  furnished  to  gen- 


say  one  or  two  from  each  of  the  eight  judicial  dis- 
tricts. Mr.  O'C.  would  prefer  two,  for  the  reason 
already  stated  by  the  gentleman  from  Erie  (Mr. 
STOW).  The  decision  in  the  great  habeas  corpus 
case  stated  by  that  gentleman,  shows  the  necessity 


tlemen  here  the  best  arguments  for  their  destruc- 
tion. This  new  court  to  be  a  court  of  last  resort? 
If  not,  its  feebleness  will  make  it  a  mere  machine 
tor  the  fabrication  of  further  appeals,  and  thus 
vex  the  citizen  and  add  vastly  to  the  labor  of  the 


of  such  a  court.     The  case  of  Pendleton  vs.  Dyett  courts  above.     Its  very  jurisdiction  will  involve 
is  another  striking  proof  of  it.     A  landlord  who  I  a  thousand  doubts  and  questions  ;  being  a  new- 
introduced  into  the  same  building  with  his   device,  it  will  riot    rest  upon   the  ancient  well 


had 


tenant  a  number  of  profligate  persons  thereby 
compelling  the  tenant  to  abandon  the  premises, 
was  held  entitled  co  recover  his  rent,  because  no- 


known  foundations  of  the  ancient  county  court. 
If  there  is  to  be  no  appeal  from  its  judgments,  it 
will  be  still  more  mischievous.  Considering  the 


thing  short  of  physical  force,  could  in  judgment  class  of  men  who  will  preside  in  it,  is  it  a  fit 
of  law,  work  an  ouster  or  eviction.  But  when  this  j  court  to  determine  finally  and  without  appeal 
case  reached  the  high  court  of  the  people,  where  j  questions  involving,  if  not  great  sums  of  money, 
sound  practical  common  sense  sat  robed  in  th<fj  that  which  is  much  dearer,  the  reputation  of 
ermine  of  supreme  judicial  power,  enlightened  the  citizen  ?  One  gentleman  (Mr.  CROCKER) 


by  the  principles  of  jurisprudence  but  not  fettered 
by  its  arbitrary  technicalities,  it  was  declared  that 
the  landlord  could  not  recover — that  he  had  raised 
a  moral  pestilence  and  had  wrought  a  moral  ex- 


proposes  to  give  it  extensive  criminal  jurisdic 
tion.       This  petty    tribunal,  condemned    in  the 
very  law  of  its  creation  as  unworthy  of  trying  a 
suit  between  man  and  man,  is  to  have  power  to 

62 


698 


condemn  the  citizen  to  imprisonment  and  to  infa- 
my. It  is  to  have  power  to  do  this  without  appeal, 
though  it  should  decide  against  all  law  and  pre- 
cedent; or  with  appeal  under  circumstances 
which  will  ensure  an  appeal  in  every  case. — 
This  newly  contrived  court  is  a  mere  device  to 
ensure  the  destruction  of  our  ancient  county  court, 
it  was  10  be  a  mongrel  court,  nenher  the  old 
common  pleas  nor  the  general  sessions,  but  a  mix- 
ture of  both,  with  some  additions.  It  presented 
the  same  novelty  of  character  as  the  new  supreme 
court  and  new  court  of  appeals.  Gentlemen  were 
quite  right  in  making  ettorts,  under  present  cir 
cumstances  to  increase  the  jurisdiction  of  justices' 
court*.  If  every  thing  was  to  be  new  and  chang- 
ed, why  not  these  justices'  courts?  Perhaps  it 
mi'°-ht  bfi  well  to  have  an  appeal  downwards— and 
have  the  justices'  courts  the  courts  of  last  resort. 
Mr  O'C.  predicted  that  such  a  court  as  the  new 
countj  court  would  prove  a  mischievous  machine 
for  breeding  the  appeals  now  so  much  complained 
of,  and  would  overwhelm  the  supreme  court.  He 
Msted  'hat  such  a  mere  experimental  county 
court,  shorn  of  its  ancient  powers  and  honors, 
would  not  receive  the  name  of  a  county  court — and 
at  all  events  that  it  would  not  stand  in  the  way  ot 
a  county  court  with  original  jurisdiction  ot  civil 
8Uji3_between  party  and  party.  He  trusted  that 
in  any  ulan  that  niig'ht  be  adopted,  we  should  pre- 
serve the  county  court  as  a  legal  institution  just  as 
U  stood,  strengthening  it  by  proper  judges,  and 
giving  it  lull  original  jurisdiction.  And  the  ques- 
tion i?i  his  judgment,  involved  the  whole  question 
of  a  supreme  court  split  into  fragments.  For  thQ 
friends  of  that  kind  of  court  must  admit  that  such 
a  subdivision  of  the  supreme  court  would  be  .idle 
if  good  and  efficient  county  courts  were  in  opera- 
Mr.  CROCKER  submitted  the  following  addi- 
tional'sections  io  the  report  of  the  judiciary  com. 
mittee,  which  wore  ordered  to  be  printed,  and 
were  referred  to  the  committee  of  the  whole: 

K  13  There  shall  be  elected  in  each  of  the  counties  o 
this  State,  except  the  city  and  county  of  New  York,  one 
county  incite  who  shall  hold  his  office  for  four  years,  and 
who  shall  hold  the  county  court,  and  perform  the  duties  o 
the  office  of  surrogate.  •• 

5j  14.  The  county  court  shall  have  appellate  jurisdiction 
of  all  causes  tried  in  justices' courts;  but  shall  have  no 
original  civil  jurisdiction.  The  county  court  may,  in  the 
discretion  of  the  county  judge,  be  held  at  any  place  in  the 
county  tor  the  convenience  of  suitors;  but  its  regula 
terms  shall  be  held  at  the  places  where  the  courts  of  com 
mon  pleas  are  now  held. 

\  15  The  county  judge,  with  two  justices  of  the  peace 
to  be  arnualy  designated  ry  the  board  of  supervisors  o 
the  several  counties,  shall  hold  courts  of  geneial  session- 
tor  the  trial  of  all  offences  punishable  by  impiisonment  i 
a  state  prison,  lor  a  term  not  exceeding  ten  years;  an 
shall  perform  all  the  special  dutie-  now  required  by  law  t 
be  performed  fry  ihe  countv  courts. 

k  16  I"  ca«e.  of  the  non-attendance,  at  the  time  and  plac 
nf  holding  the  court  of  general  sessions,  of  the  justices  s 
rtpsiiroated  or  either  of  them,  their  pl.ices  may  be  supplie 
£v  others  to  be  summoned  by  the  sheiifT  of  the  county. 

\  17    The  countv  judge  shall  receive  an  annual  salary 

f n  V.P  fixpd  bv  law.'    The  accounts  of  justices  lor   seiTice 

°  cour* o -general  sessions,  shall  be  audited  by  the  board 

of  supervisors,  and  paid  out  ot  the  connty  treasury. 

The  Convention  then  took  a  recess. 

AFTERNOON  SESSION. 
The  committee  of  the  whole,  Mr.  CAMBRE 
LENG  in  the  Chair,  again  took  up  the  report  - 
the  judiciary  committee. 
Mr.  JORDAN  said,  in  addressing  this  body  h 


lould  endeavor  to  recollect  that  he  was  discus- 
ng  a  very  grave  subject,   and  addressing  men  of 
ommon  sense  and  sober  judgment — men  who  at 
ast  know  a  surrogate  from  a  "  bull-frog,"  and  a 
ounty  court  from   a  "  cormorant."     He  did  not 
xpect  by  any  witticism  of  that  kind  or  by  any 
dicule  he  might  throw   on   the   advocates  of  a 
Ian  he  might  not  fancy,  to  convince  sober-mind- 
d  men  either  that  he  was  right,  or  they  wrong. 
e  promised  the  other   day,  in  as  brief  a  manner 
s  practicable,  to  explain  what  kind  of  acourt  this 
•ould  be,  when  the  plan  was  carried  out  accord- 
ig  to   these  great   outlines.     But  before   doing- 
lis,  he  must  say  that  before  the  gentleman  from 
Vew-York,   (Mr.    O'CoNon)  last   addressed  the 
ommittee,  Mr.  J.  supposed  they  had  heard  quite 
s  much  about  the   proceedings  of  the  judiciary 
ommittee  as  they  desired   to   hear;  and  he  had 
oped  that   gentleman,  who  had  said  all  manner 
f  clever  things  about  the  committee,  would  have 
een  content,  in  the    absence    of   the    chairman 
Mr.  RTJGGLES),   in  consequence  of  sickness,  to 
ave  let  the  matter  pass  over  without  further  as- 
ersions.     He   had  been  accused  of  ridiculing  the 
minority  of  the  committee;  and  this  accusation 
ame  from  gentlemen,   one  of  whom  asserted  in 
iis  place,  a  few  days  since,  that   no  three  of  the 
:ommittee  agreed  to  this  report,  and  now,  after 
hat  bold  assertion   had  been   amply  refuted,  re- 
eated   the   charge  that  this  report  was  not  the 
act  of  a  majority  of  the   committee.     Again,  the 
majority  were  accused   of  an   intolerant,   domi- 
neering spirit,  because  they  repelled  this  assault. 
Ie  disclaimed   any  intention  to  asperse  the  mo- 
ives  of  the  minority.     He  stated  a  simple   fact, 
and  solely   with   the  intention   to   vindicate   the 
course  of  the  majority   of  the  committee,  especi- 
illy  that  of  the  honorable  chairman  ;  to  show  the 
ntrinsic  difficulties  of  the  subject  and  to  incul- 
cate here,  as  he  had  done  there,   a  spirit  of  har- 
mony  and   conciliation.     It  had  been   his  ardent 
desire  to  prevent  unpleasant  and  exciting  colli- 
sions— to  avoid  any  thing  in   itself  calculated  to 
give  just  cause  of  offence   to   any,   or   to  disturb 
:hat  calm  deliberation  to  which  this  great  subject 
was  pre-eminently  entitled.     And  he  did  not  in- 
tend hereafter,  whatever  gentlemen  might  say, 
DV  way  of  covert  insinuation  or  otherwise,against 
the  majority  of  the  committee  or  its  chairman,  to 
depart  from  that   course.     And  he  hoped  yet  to 
convince   the   gentleman   from   New- York  (Mr. 
O'C.) — more  than   two-thirds  of  whose  remarks 
were  calculated  to  bring  the  judiciary  committee, 
and  the  plan  they  had  proposed,   into   contempt 
and  ridicule,  rather  than  to  show  a  better  plan — 
that  this   great   machine,  which  the  gentleman 
predicted  would  break  down  in  eighteen  months 
would  operate  efficiently,  promptly  and  cheap- 
ly, and  (if  we  got  good  judges)  to  the  satisfaction 
of  the  whole  community.     One  word  more  in  re- 
gard to  what  the  gentleman  from  New-York  had 
said  of  the  forty -seven  section  report.     The  gen- 
tleman v«as  asked  by  the   gentleman  from  Herki- 
mer  (Mr.  LOOMIS),    whether  that  report  varied 
from  any  principle  finally  settled  by  the  commit- 
tee, except  in   regard  to  the  construction  of  the 
court  of  appeals.     The  gentleman  was  bound   to 
confess  that  he  did  not  know  that  it  did,  unless  that 
this  report  did  not  contain  the  provision  in  regard 


699 


to   the   ineligibility  of  judges  for  two  years  after 
their  terms  had  expired. 

Mr.  O'CONOR:  The  court  of  common   pleas 
was  in,  and  a  different  court  of  errors. 

Mr.  JORDAN  said  it  was  true  the  court  of  er- 
rors was  a  little  ditferently  organized,  and  Mr.  J. 
regretted  that  the  committee  had  not  the  benefit 
of  the  light  of  the  gentleman's  great  mind  on  this 
subject.  It  was  the  misfortune  of  the  committee 
that  the  gentleman's  business  called  him  away, 
and  that  they  had  not  his  assistance  in  re-model- 
ling the  court  of  errors  when  the  report  was  fi- 
nally agreed  to.  But  in  the  other  particular  he 
begged  leave  to  say  that  the  gentleman  was 
wrong.  There  was  no  such  clause  in  the  47th 
section  report  (as  it  was  called)  as  that  in  regard 
to  the  ineligibility  of  the  judges,  although  that 
matter  had  been  discussed  at  large  in  the  com- 
mittee. It  did,  he  believed,  contain  a  county 
court,  but  a  very  different  one  from  that  propos- 
ed by  the  gentleman  from  New  York — it  had 
been  placed  there  he  believed  to  satisfy  gentle- 
men who  finally  voted  down  the  report  as  a 
whole,  and  was  then  omitted  in  the  report  pre- 
sented, because  a  majority  deemed  it  most  desira- 
ble to  do  so.  But  he  had  this  general  remark  to 
make,  and  he  hoped  for  the  last  time,  that  this 
report  was  fairly  brought  in  by  a  majority  of  the 
committee.  And  whilst  saying  this  he  saw  here 
in  their  places  the  gentlemen  from  Chautauque 
(Mr.  PATTERSON,)  from  Oswego  (Mr.  HART,) 
from  New  York  (Mr.  STEPHENS,)  from  Tomp- 
kins  (Mr.  SEARS,)  from  Orange  (Mr.  BROWN,) 
and  from  Herkimer  (Mr.  LOOMIS,)  all  members 
of  the  committee.  Here  were  six,  and  if  there 
were  a  mau  of  them  that  did  not  agree  to 
this  repon  he  begged  he  would  rise  and  say 
so,  and  Mr.  J.  would  set  down  convicted  of 
falsehood.  Gentlemen  had  not  gone  so  far  as 
to  charge  that  the  chairman  (Mr.  RUGGI.ES) 
or  he  (Mr.  JORDAN)  did  not  agree  to  it,  and 
if  eight  make  a  majority  of  thirteen,  he  did 
not  ask  the  aid  of  the  gentleman  from  Essex 
(Mr.  SIMMONS,)  who  agreed  with  a  mental  reser- 
vation, to  make  out  a  majority,  though  they  would 
have  been  glad  indeed  to  have  had  his  entire  con- 
currence. But  to  come  to  the  details  of  this  plan, 
and  redeem  his  promise  by  explaining  how  it 
could  be  carried  out  by  the  legislature,  so  as  to 
work  well — (for  the  legislature  would  have  cer- 
tain duties  to  perform  as  well  as  this  Convention.) 
We  were  to  fix  the  inflexible,  unalterable  parts 
— the  legislature  would  have  to  give  it  its  flexible 
and  moveable  parts,  those  which  could  from  time 
to  time  be  altered,  and  modified  as  the  develop- 
ment of  circumstances  should  require.  He  re 
marked  the  other  day  that  the  committee  could 
not  claim  for  this  plan  the  support  of  the  Con 
vention,  unless  they  could  show  that  the  courts, 
03  thus  organized,  would  be  efficient  to  do  the 
business,  and  do  it  well,  and  to  the  satisfaction 
of  the  public. 

He  had  been  told  that  a  majority  of  the  commit- 
tee had  come  in  here  in  a  body  determined  to 
push  this  report  through,  every  line  and  letter  ot 
it.  That  was  the  gentleman's  (Mr.  O'CONOR'S) 
language — and  that  he  was  now  convinced  of  the 
overpowering  and  pernicious  importance  attached 
to  a  majority  report.  For  he  was  now  satisfiec 
it  was  already  to  be  considered  as  embodied  in  the 


Constitution — and  that  there  was  no  more  to  be 
aid  about  it.  The  committee,  (said  Mr.  J.)  were 
elected  to  do  a  duty.  They  performed  that  du- 
ty, and  it  would  have  been  unparliamentary,  if 
not  trifling  with  this  body,  if  after  doing  that  du- 
y  eight  of  the  committee  concurring  in  a  report, 
hey  had  fallen  to  work  and  pulled  it  to  pieces. 
The  committee  were  not  so  regardless  of  what 
:hey  owed  to  themselves  and  their  constituents  as 
;o  be  betrayed  into  any  such  a  course,  it  would 
lave  been  the  work  of  madmen;  nor  could  they 
consider  an  abandonment  of  it,  without  explain- 
ng  its  principles,  showing  how  it  would  operate, 
ind  endeavoring  to  obtain  a  majority  to  sustain  it 
lere,  would  be  walking  in  the  line  of  duty;  un- 
.ess  indeed  some  gentleman  could  produce  a  bet- 
:er  plan,  and  convince  them  of  its  superiority. — 
tfe  was  inclined  to  do  what  he  considered  in- 
cumbent on  those  who  agreed  to  the  report — to 
explain  and  defend  it.  And  notwithstanding  all 
the  accusations  against  the  committee,  and  the 
ridicule  attempted  to  be  thrown  upon  the  report 
ay  comparing  the  judges  to  a  flock  of  flying  pig- 
eons— characterizing  them  as  an  itinerant  band 
of  vagabond  judges  roaming  about  the  state  te 
peddle  out  justice — and  he  knew  not  what  terms 
of  reproach  and  ridicule  had  not  been  employed 
upon  them — he  would  not  repeat  the  epithets 
that  had  been  so  profusely  showered  upon  them, 
nor  did  he  intend  to  retort  upon  the  minority  re- 
port of  his  Hon.  friend  from  New  York,  (Mr. 
O'C.)  He  might  with  as  much  propriety  com- 
pare his  stationary  judges  to  a  bed  of  oysters, 
growing  fast  to  any  substance  they  might  chance 
to  rest  upon;  there  would  be  just  as  much  of  ar- 
gument in  it.  But  he  would  condescend  to  no 
such  course  of  remark — he  intended  to  do  his 
duty,  and  that  done,  the  responsibility  was  off  his 
shoulders — it  would  rest  on  the  Convention, 
where  it  would  be  clearly  discharged — a  respon- 
sibility, he  confessed,  he  had  felt  oppressed  with 
ever  since  this  matter  was  sent  to  the  committee. 
To  begin  with  his  explanation,he  would  call  at- 
tention to  the  court  of  appeals.  There  was  one 
spontaneous  sentiment  among  the  judiciary  com- 
mittee, and  he  believed  every  where,  that  the 
court  of  errors,  as  now  organized,  should  be  abol- 
ished. To  supply  its  place  the  report  provided 
for  the  election  of  four  members  of  the  court  of 
appeal*,  by  general  ticket  throughout,  the  state — 
whose  duty  it  should  be  to  sit  in  this  court,  and 
do  nothing  else.  It  puts  four  judges  of  the  su- 
preme court  with  them — making  a  court  of  eight 
— any  five  of  them,  a  majority,  might  hold  the 
court.  This  was  done  in  view  of  the  physical 
constitution  of  man — knowing  that  it  was  not  in 
the  power  of  any  man  to  sit  week  in  and  week  out, 
year  in  and  year  out,  on  the  bench  with  his  high- 
est intellectual  energies  constantly  employed. — 
This  provision  would  allow  one,  two  or  three  of 
them  to  be  absent,  as  they  might  arrange  it,  and 
yet  keep  up  a  court.  And  it  was  pretty  general- 
ly agreed  that  five  able  and  sound  judges  were  as 
safe  to  pass  upon  questions  of  law,  as  five  hun- 
dred. The  election  of  half  the  court  by  the  whole 
people,  was  deemed  to  be  important  to  preserve 
a  favorite  feature  of  the  present  court  of  errors, 
and  to  infuse  into  it  the  popular  principle.  The 
committee  proposed  to  divide  the  state  into  eight 
districts— four  judges  of  the  supreme  court  to  be 


700 


elected  in  each — making  thirty-two — so  classifiei 
under  provision  of  law  that  one  should  go  out  i: 
each  district  every  two  years,  and  his  place  to  b> 
supplied  by  a  new  election.  Of  these  thirty-twi 
judges,  it  was  proposed  to  select  four  of  the  senio 
class  of  judges — those  who  had  their  two  las 
years  to  serve,  and  who  would  of  course  be  men 
of  experience  and  practical  law  learning — to  si 
in  the  court  of  appeals — the  legislature  to  mak< 
provision  for  the  classification  of  the  class  of  eigh 
senior  judges,  so  that  they  might  alternate  in  the 
court  of  appeals  and  in  doing  circuit  duty — anc 
so  that  if  it  should  be  necessary  for  the  court  t< 
sat  the  whole  year  round,  the  judges  should  noi 
be  physically  broken  down.  As  to  the  terms,  he 
supposed  the  legislature  would  fix  on  four  terms 
a  year,  all  of  them  held  at  the  seat  of  government 
And  this  because  it  would  best  comport  with  the 
dignity  of  the  court,  and  because  it  was  necessa- 
ry that  they  should  be  in  the  neighborhood  of  a 
law  library — and  the  state  had  one  of  the  best  law 
libraries  in  the  union — 'that  at  Washington  alone 
excepted.  This  location  the  committee  though 
better  than  to  have  the  court  holding  their  terms 
first  in  New- York,  then  at  iSaratoga,  then  at  Roch- 
ester, then  at  Buffalo,  and  then  perhaps  at  the 
Pine  Orchard,  or  on  the  top  of  Mount  Holyoke  or 
the  White  Mountains,  It  was  thought  better  to 
have  the  court  locat'ed,  so  that  the  profession 
\vould  know  where  to  find  it ;  and  where  the  mem- 
bers of  the  profession  called  there  by  important 
business  might  see  each  other  occasionally.  It 
would  have  a  tendency  to  improve  and  elevate  the 
character  of  the  bar,  but  the  legislature  would 
fix  it  where  they  pleased.  These  terms  it  was 
supposed  would  commence  on  the  first.  Monday  in 
January.  May  and  iSeptember — and  that  they 
would  continue  their  sessions  until  all  the  busi- 
ness on  their  calendar  was  done  up,  the  court 
hearing  arguments  and  deciding  cases  as  they 
went  along.  And  what  time  was  there  for  a  judge 
to  decide  a  cause  so  fit  as  immediately  after  hear- 
ing the  argument  ?  That  was  the  way  the  su- 
preme court  at  Washington  did,  and  what  court 
did  business  more  ably  and  promptly  ?  If  this 
court,  sitting  the  whole  year  round,  as  by  their 
organization  they  might,  could  not  do  up  the  bu- 
siness of  a  court  of  last  resort — then  we  should  be 
driven  to  the  dire  necessity — which  God  in  his 
mercy  avert !  of  having  a  divided  court  of  last  re- 
sort. Then  might  we  look  for  conflicting  deci- 
sions, and  then  might  be  almost  driven  to  divide 
this  great  empire  state  into  two.  But  he  believed 
they  could  do  all.  It  was  said  our  supreme  court 
sat  all  the  while,  and  yet,  running  behind. — 
They  had  done  all  they  could.  One  of  them, 
whose  memory  was  revered  and  his  loss  la- 
mented had  already  worked  himself  to  death 
— he  had  doubtless  fallen  a  victim  to  his  lau- 
dable ambition  in  the  service  of  the  state;  and 
another  had  been  on  the  point  of  going  the  same 
way.  This  report  provided  against  that  in  the 
way  he  had  mentioned. 

He  iiad  -nown  how  the  four  judges  of  the  court 
proper  could  alternate.  Those  diawn  from  the 
.supreme  court,  eight  in  number,  uiigh;  alternate 
jit  the  second — four  only  ol  the  eigm  being  in  re- 
quisition at  ihe  same  lime — and  ihus  they  could 
sit  nil  tne  year  r  .unci,  il  the  business  should  re- 
quire it,  and  h«.  had  no  npur«?heiis;uu  that  it  would 


be  overburthened  with  business.     The  mure  exai» 
ted  the  court  of  original  jurisdiction,  the  less  likely 
was  it  that  its  decisions  would    be  appealed  from. 
Let  the  cases  which  ate  locome   up  on  appeals, 
originate  and  be  tried  in  a  supreme  court,    before 
a  judge  ot  high  character  and   order  of  talents,  of 
Kieat  learning  and  experience,  and  be  reviewed  is 
bane  by  three  judges  of  the  same  grade,    and  his 
word  for  it  there  would  not  be  one  case  to  ten  ap. 
pealed    that  formerly  had   been.     But   ibis   court 
was  not   yet   organized.     The   legislature  would 
provide  a  clerk  for  it,  and  make  provision  for  his 
compensation.     He   would   have"  his   office  here 
when  the   court   set — would    receive   all   papers 
coming  up  from  the   supreme  couit — would   be 
present  when   the   court  was  in  session   to   enter 
their  orders  and  decrees,  to  transmit  papers  for  a 
new  trial,  or  for  judgment   in  the  court  below.— 
The  legislature  would  also  provide  an  able  repor- 
ter for  this  court  of  appeals,  give  him  a  salary,  and 
give  him  nothingelse.     There  should  be  no  "steal- 
ings in" — no  "  copy  right."     No  partnerships  with 
booksellers — nothing  of  the  hind.     The    reporter 
then,    instead  of  wire-drawing,    and   making  six 
books  where  one  was  enough,  would  improve  the 
quality,  whilst  he  lessened  the  quantity  of  his  re- 
ports.    The   legislature   should    also   provide  for 
printing  them  at  the  public  expense — taking  care 
to  cover  the  cost  bv  the  price — and  he  ventured  to 
sny  that  the  profession  and   all  others   could  then 
purchase  for  $2,  what  they  have  been  in  the  habit 
of  paying  $6  a  volume  for.     This  would  stop  this 
flood  of  books  that  were  now  rushing  in  on  us  like 
an   avalanche.     We    were   already  buried    up    in 
them.     There   were  from  five  to  seven  volumes 
issued  every  year  in  this  state,  and  many  more  in 
all  the  other  states— and  that  every  lawyer   must, 
if  he  womd  measure  swords   with  his  advesary  ir> 
the   multiplication  of  supposed  aufhorities,  have. 
The  first  report,   in    this  state,  commenced  about 
lorty-five  years  ago.     We  had  already  here  and  in 
[he  U.  S.  courts  about  150  volumes — and  it  had  be- 
come an  intolerable  burthen  to  the   profession,  of 
whom  generally,   it   has  been    truly  said,  "  They 
vvurk  hard,   live  well  and  die  poor."     This  busi- 
ness of  book-making   had    had   something  to   do 
with  it — and  he  hoped  never  to  see  another  law- 
Dook  piinieil  in  this   state  except   such    as   came 
rorn  the    hands  of  the    repoiter  of  the   supreme 
court  in  law    and    equity.     A  young  lawyer,  just 
enleririg  upon  his  career,  is  borne  down   with  the 
ipparent  weight  ot  expense  •  he  must  plank  $1000 
or  the  reports  of  the  si  ate  ot  New-York  and    the 
Jnited  States  alone, — without  these   he  could  not 
s;et  along,   and   ever  expect  a  client  to  daiken  his 
door,     'i  btee  fourths  of  the  *tufl  reported  was  un~ 
jecessary — and  it  tne  reporter  had  a  salary  and  no 
copy  right,  instead  ot  five  or  ten  volumes  a  year, 
we  should  probably  have  one    volume    in    t\\oor 
hree   yeats,    properly   condensed    and    caretuhy 
nade  up.     They  would   then    prub.ibly  be    issued 
list  in  numbers, and  the  profession  accommodated, 
ind  he  would  tell  the  gentleman  from  New-York, 
Mr.  O'CoNOR)  that  these  vagabond  judges,  these 
Uneraut  law  pedlars  he  had  referred  to,  would  be 
nst  as  likely  as  not  to  come    across  them  in  their 
vanderings,  and  he  should  not  be  at  all  surprised, 
f  they  stiould  withal    now    and   then    read  a  lew 
ages,  and  become  acquainted  with  their  contents 
— should  it  so  happen  it  might  seem  in  part  to  ob- 


701 


vi.ile  one  <  f  his  difficulties,  lhal  of  conflicting  de- 
cisions. But  enough  oft  his  and  of  his  court  of  ap- 
peals, which  he  did  not  hesiinte  to  .say,  if  we  had 
the  right  kind  of  judges  would  be  amply  sufficient 
for  all  purposes.  And  he  had  no  fears  about  elect- 
ing  judges;  hut  he  had  his  dotints  about  shorten- 
ing their  terms.  Electing  judges  would  make 
theni  sensible  of  the  source  of  their  power.  The 
mis-fortune  now  was  that  a  man  who  was  made  a 
judge,  was  prone  to  forge'  who  made  him,  and  he- 
come  indolent  or  insolent,  if  constitutionally  dis- 
po-sod  th.it  way.  If  he  was  a  good,  conscientious 
and  capable  man,  such  as  we  had  now,  he  would 
he  a  valuable  man— and  would  not  forget  that  a 
judge  ought  to  be  a  gentleman  and  that  he  some- 
times had  to  deal  with  gentlemen  in  the  members 
of  the  bar.  If  there  was  any  thing  in  the  idea  of 
the  independence  of  a  judge  as  applicable  to  our 
institutions  it  depended  on  the  length  of  his  term 
and  not  ti  e  mode  of  his  creation;  on  that  head  it 
was  nor  his  purpose  now  to  remark. 

Mr.  J.  said  he  would  next  explain  the  supreme 
court,  that  great  monster  with  eight  heads,  near- 
ly as  bad  in  the  imagination  of  some  gentlemen 
as  Anti-Christ,  differing  principally  in  having 
more  heads  and  fewer  horns.  The  committee 
proposed  32  judges  elected  by  districts — the  state 
to  be  divided  into  eight  parts,  as  compact  as  might 
be  without  dividing  counties,  for  that  purpose. 
The  city  and  county  of  New  York  was  made  in 
some  respects  an  exception — an  increase  being 
provided  for  there,  as  the  exigencies  of  popula- 
tion and  business  might  require.  Four  of  these 
judges  were  to  be  residents  of  each  district — to  be 
classified  as  he  had  stated,  any  three  of  them  to 
hold  a  supreme  court  any  where  in  the  State. — 
Supposing  these  judges  to  be  the  right  kind  of 
men,  for  he  did  argue  on  the  supposition  that 
they  were  not  to  be  "  loafers  from  Delaware"  or 
any  other  benighted  part  of  the  state,  as  had  been 
supposed  by  the  gentleman  from  New  York  (Mr. 
O'C.1) — those  who  did  not  know  a  ship  from  a 
coal  barge — a  Baltimore  clipper  from  an  Albany 
flat-bottom.  He  (Mr.  J.)  supposed  they  would 
be  intelligent,  good  men,  then  he  insisted  we  had 
those  in  each  district,  who  might  hold  a  supreme 
court  in  any  part  of  the  State.  But  that  this  did 
not  exclude  more  ;  and  gentlemen  were  wrong  in 
supposing  that  there  never  could  be  more  than 
three.  This  article  itself  contained  the  elements 
of  a  provision  for  the  sitting  in  bane  of  as  many  of 
these  judges  as  were  convenient  or  as  chose  ;  and 
Mr.  J.  could  anticipate  occasions  when  they  would 
nearly  all  sit  together.  There  was  nothing  to 
prevent  it.  But  he  went  further.  They  would 
be  brought  together  once  a  year,  not  expressly 
under  this  system,  but  it  was  a  part  of  it  which 
the  legislature  would  no  doubt  carry  out.  They 
would  meet  to  form  their  rules  of  practice  and 
proceeding,  which  must  be  uniform  throughout 
the  state.  If  he  had  the  framing  of  a  judiciary  act, 
he  should  provide  that  they  should  meet  once  a 
year,  first  for  the  purpose  of  establishing  rules, 
and  afterwards  to  revise  them,  if  by  so  doing  they 
would  diminish  costs  or  expedite  proceedings  by 
it.  There  was  nothing  in  this  article  necessa- 
rily to  keep  them  assunder  at  any  other  time. — 
They  might  all  meet  together,  or  any  number  of 
them  down  to  three,  such  was  the  structure  of 
the  system. 


Mr.  O'CONOR  asked  the  gentleman  to  show 
what  part  of  the  article  provided  for  this.  There 
might  be  times  when  great  constitutional  ques- 
tions— questions  affecting  the  interests  of  the  en- 
tire population  of  the  State  might  arise.  Should 
such  or  any  other  case  occur  creating  intense  and 
general  excitement,  perhaps  convulsing  the  State 
to  her  centre,  and  making  the  very  battlements 
of  your  judiciary  rock,  what  court  on  earth 
would  be  more  likely  to  hush  flic  disturbing  ele- 
ments and  command  a  reverence  for  your  laws  ? 
Thirty-two  men  selected  by  the  people,  of  known 
integrity,  profoundly  versed  in  the  principles  of 
your  constitution  and  learned  in  the  law,  sitting 
in  judgment  together,  would  present  a  moral  spec- 
tacle of  itself  calculated  to  rebuke  the  spirit  of 
discord.  They  might  and  doubtless  would,  should 
occasion  require  it,  convene  and  sit  together  from 
the  highest  sense  of  official  duty. 

Mr.  JORDAN  replied  that  with  a  court  of 
thirty-two  judges  any  three  of  them  being  allow- 
ed to  hold  a  court,  the  implication  at  least  was 
pretty  strong  that  that  was  the  least  number,  not 
the  greatest. 

Mr.  CHATFIELD  referred  the  gentleman  to 
section  four. 

Mr.  O'CONOR  was  replying,  when 
.frMr.  JORDAN  interposed — submitting  whether 
we  had  not  had  an  abundance  of  this  small  stuff. 
[Mr.  O'CONOR  :— "small  stuff?"]  Yes,  (said  Mr. 
J.,)  "  small  stuff,"  if  the  gentleman  chooses  to 
repeat  my  words.  How  easy  was  it,  if  there  was 
any  doubt  of  this,  for  the  gentleman,  instead  of 
pulling  the  report  to  pieces,  to  amend  by  saying 
"  three  or  more."  And  who  of  the  committee 
had  objected  to  any  alteration  of  the  language  of 
the  report,  if  it  could  be  improved?  Which  of 
them  had  objected  to  the  modification  of  this 
section  already  made  on  the  motion  of  the  gen- 
tleman from.  Otsego  ?  Or  who  would  object  to 
to  any  such  alteration  ?  He  liked  the  proposition 
of  the  gentleman  from  Cattaraugus  (Mr.  CROOK- 
ER) — characterised  as  a  bull-frog  coUi-t  by  the  gen- 
tleman from  New  York.  But  more  of  this  by  and 
by.  He  would  suppose  these  judges  elected  and 
sworn,  and  the  districts  arranged  by  the  legisla- 
ture. He  thought  he  could  show  that  this  might 
be  carried  out  to  the  convenience  of  the  whole 
state.  Recollecting  that  the  legislature  was  to  di- 
rect how  many  terms  in  bane  were  to  be  held  in 
each  district  and  where,  he  would  suppose  that 
they  would  require  four  terms  in  bane  in  each 
district — let  us  see  how  this  could  be  carried  out. 
Supposing  the  ratio  for  a  district  to  be  in  round 
numbers  300,000.  First  placing  the  city  of  New 
York  by  itself,  the  second  district  might  be  com- 
posed of  Dutchess,  Orange,  Roc tdarid,  Putnam, 
Westchester,  Richmond,  Kings,  Queens,  and  Suf- 
folk. Here  he  would  have  lour  places  for  hold- 
ing bane  terms— Newburgh,  Poughkeepsie, White 
Plains  and  Brooklyn.  The  third  district  might 
beRensselaer,Washington,Saratoga,Montgomt:ry, 
Herkimer,  Warren,  Essex  and  Clinton— and  the 
four  places  for  holding  bane  terms  Troy,  White- 
hall or  Keesville,  Saratoga  Springs  and  irlerkaner 
or  Little  Falls.  The  fourth,  Oneida,  Oswego, 
Jefferson,  Lewis,  St.  Lawrence,  Franklin — and 
the  places  for  holding  the  terms,  Utica,  Uswego, 
Watertown,  and  Ogdensburgh.  [A  laugh  from 
M..  SIMMONS.]  He  had  no~doubt  the  gentleman 


702 


from  Essex  could  arrange  that  district  better,  and 
he  should  be  happy  to  hear  any  suggestions  from 
that  quarter.  He  did  not  profess  a  knowledge  of 
that  portion  of  the  state,  as  he  had  never  been 
there,  and  there  were  some  parts  of  it,  if  he  had 
had  a  correct  description  of  "  Totten  and  Cross- 
field,"  where  he  never  desired  to  be.  [Mr.  SIM- 
MONS : — Perhaps  the  desire  might  be  mutual.]  — 
Not  very  likely  (said  Mr.  J.)  for  it  is  the  soil  of 
which  I  speak,  and  not  the  animals  who  grow 
upon  it.  The  fifth  district  he  would  compose 
of  Delaware,  Schoharie,  Schenectady,  Otsego, 
Greene,  Columbia,  Ulster,  Sullivan,  and  Albany 
— the  places  of  holding  the  courts  Delhi,  Coopers- 
town,  Kingston  and  Albany.  The  sixth,  Tioga, 
Tompkins,  Cayuga,Onondaga,Chenango,  Broome, 
Madison  and  Cortland — the  places  of  holding 
courts,  Ithaca,  Auburn,  Syracuse,  and  Oxford. — 
The  seventh,  Monroe,  Livingston,  Wayne,  On- 
tario, Yates,  Steuben,  Seneca  and  Chemung — 
the  places  of  holding  courts,  Rochester,  Geneva  or 
Canandaigua,  Bath  and  Waterloo  or  Penn  Yan  — 
The  eighth,  Chautauque,  Cattaraugus,  Erie,  Ni- 
agara, Orleans,  Genesee,  Wyoming  and  Allegany 
— the  places  of  holding  the  courts,  Mayville,  Buf- 
falo, Batavia  and  Angelica. 

Mr.  JORDAN  resumed  his  speech,  commenced 
yesterday,  and  proceeded  to  show  how  the  orga- 
nization, which  he  had  in  part  described,  should 
be  completed.  He  said  he  supposed  some  point 
would  be  designated  by  the  legislature,  where  a 
clerk's  office,  for  each  judicial  "district,  should  be 
established  ;  and  that  a  clerk  would  be  elected  by 
the  people,  to  hold  his  office  for  such  term  as 
might  hereafter  be  thought  proper,  giving 
bonds  for  the  proper  discharge  of  his  duty,  which 
would  be  highly  responsible,  as  all  moneys  paid 
into  the  supreme  conrt,  on  the  law  or  equity  side, 
of  which  there  would  be  immense  sums,  would 
go  into  his  hands  to  be  distributed  or  invested 
according  to  law.  In  establishing  the  clerks'  of- 
fices, of  course,  regard  would  be  had  to  the  geo- 
graphical position  of  the  district,  and  to  the  means 
of  communication  by  railroad,  steamboats,  mails, 
&c.,  so  as  to  locate  in  the  best  possible  manner  to 
suit  the  convenience  of  the  bar,  and  of  suitors 
whose  business  the  bar  had  in  charge.  It  would 
be  necessary  that  each  of  the  clerks  should  have 
a  seal,  both  for  law  and  equity.  We  have  now 
four  seals  of  the  supreme  court  and  four  of  the 
court  of  chancery,  at  the  different  clerks'  offices 
of  the  state,  and  the  additional  number  he  had 
mentioned  must  be  procured.  Thus  organized, 
he  saw  nothing  to  prevent  this  court  going  into 
active  operation.  As  causes  came  from  inferior 
tribunals,  they  would  be  ready  to  hear  arguments 
and  decide  them.  In  case  of  reversal,  they  would 
send  them  back  for  a  new  tiial :  in  case  of  affirm- 
ance, they  would  authorize  the  party  to  enter  up 
judgment ;  when  if  either  party  should  be  dissat- 
isfied, the  cause  would  be  in  a  situation  to  be  pass- 
ed on  to  the  court  of  appeals.  By  the  article  un- 
der consideration  they  provided  also  that  there 
should  be  as  many  circuit  courts  held  in  every 
county  each  year  as  the  legislature  should  direct, 
which  would  be  regulated  by  the  amount  of  busi- 
ness to  be  done — tliere  might  be  two  or  three  or 
more  if  necessary,  and  the  legislature  would  pre- 
scribe the  place  and  length  of  time  of  holding 
them.  The  judge  would  go  down  to  the  circuit 


and  there  remain  until  all  the  business  was  done. 
The  system  contemplated,  and  the  wants  of  the 
community  required,  nothing  less;  and  he  desired 
to  say,  once  for  all,  that  it  lay  at  the  foundation 
of  their  plan  to  provide  sufficiently  that  all  the  bu- 
siness in  all  the  •  courts,  from  the  lowest  tp  the 
highest,  should  be  done  up  as  they  went  along. 
There  was  no  time  so  favorable  for  deliberation 
and  decision  as  immediately  after  argument,  and 
thus  only  could  we  avoid  the  harassing  expense 
and  vexatious  delays  to  which  we  had  been  sub- 
jected. The  circuit  judge  would  preside  as  the 
judge  both  of  law  and  equity.  The  clerk  of  the 
county,  who  was  to  be  the  clerk  of  the  circuit  the 
same  as  he  hitherto  had  been,  would  have  the 
law  and  equity  calendars  separately  made  up  on 
notes  of  issue  previously  furnished  by  the  attor- 
neys and  solicitors,  and  when  the  judge  came,  he 
would  call  his  jury,  try  his  causes  on  the  law 
side,  and  the  verdicts  would  be  entered  in  the 
rough  minutes  by  the  clerk  of  the  circuit  as  here- 
tofore had  been  done.  Having  got  through  his 
law  calendar,  he  would  take  up  his  calendar  in 
equity  and  such  causes  as  were  to  be  tried  by  jury, 
he  would  try  before  the  jurors  were  dismissed. 
On  this  subject  he  might  remark  it  would  be 
the  duty  of  the  supreme  court  at  their  annual 
meeting,  to  which  he  referred  yesterday,  to  pro- 
vide by  general  rules  how  causes  in  equity  should 
be  designated  for  trial  by  a  jury,  and  how  the  is- 
sues should  be  made  up.  And  they  would,  if  ei- 
ther party  desired  a  trial  by  jury,  authorize  him 
to  give  his  opponent  notice ;  if  they  could  agree 
on  the  issue  to  be  tried,  well;  if  not  he  must  apply 
to  one  of  the  judges,  who  would  decide  whether 
the  case  was  proper  for  a  jury,  and  if  so  how  the 
issue  should  be  prepared.  The  judge  at  the  cir- 
cuit having  disposed  of  all  his  trials  at  law,  could 
next  dispose  of  those  in  equity  which  have  to  be 
tried  by  jury,  and  the  verdicts  would  be  entered 
in  the  rough  minutes  of  the  clerk.  He  would 
then  proceed  to  the  trial  of  those  causes  in  equity 
which  are  not  to  be  tried  by  a  jury.  And  when 
he  comes  to  the  end  of  trials  of  that  description, 
he  gives  the  heads  of  his  decisions  to  the  clerk 
just  as  the  verdict  of  a  jury  would  be.  He  settles 
the  facts^  which  become  in  fact  a  verdict.  He 
decides  all  the  questions  of  evidence,  and  ques- 
tions of  law  as  he  passes  on  through  the  trial ;  the 
same  as  in  a  trial  at  law.  There  is  no  difficulty 
in  this  in  suits  at  law,  and  he  could  not  see  why 
there  should  be  any  in  suits  at  equity.  But  he 
would  suppose  that  one  or  other  of  the  parties  in 
these  causes,  whether  in  law  or  in  equity,  was 
dissatisfied  with  the  verdict  or  decree — what  way 
to  be  done  ?  Why  by  the  rules  of  practice  as  ma- 
ny days  as  ten  might  be  given  to  the  parties  to  ap- 
peal. If  it  were  not  done  in  that  time  the  judg- 
ment should  be  entered  up  on  the  verdict  at  law, 
and  a  decree  drawn  out  in  form  and  entered  in 
cases  in  equity,  in  the  office  of  the  clerk  of  the 
district.  But  if  either  party  is  dissatisfied  he 
gives  notice;  and  prepares  his  bill  of  exceptions, 
or  makes  out  his  case,  to  which  his  adversary  may 
agree  or  the  judge  settles  it,  and  they  are  sent  up 
to  the  clerk  of  the  supreme  court  to  remain  in  that 
office  for  the  use  of  that  court.  Now  in  all  this 
he  saw  not  the  least  difficulty.  He  might  as  well 
now  present  his  views  of  the  objections  of  the 
gentleman  from  Chautauque  (Mr.  MARVIN),  who 


703 


presented  his  plan  of  a  judiciary  a  few  days  ago. 

Tne  gentleman  Iroin  Ctidutduque  hod  objected 
that  it  might  not  be  convenient,  to  present  all 
the  evidence  in  equity  suits  at  the  time,  and  there- 
lore  that  there  outfit  to  be  power  to  adjourn.  To 
this  he  might  reply  that  it  was  not  always  con- 
venient to  parties  to  give  all  then  evidence  in  law 
suns  ai  the  same  tune.  Many  parties  would  deem 
it  very  convenient  it  they  could  postpone  giving 
their  evidence  lor  a  few  days  or  weeks,  or  months; 
but  thai  was  an  inconvenience  which  must  be 
submitted  lo  in  courts  of  law,  and  he  thought  K 
should  be  submitted  to  also  in  equity.  It  was  no 
more  bunhensome  in  the  one  case  than  in  the 
other.  Witnesses  geneially  were  no  more  numer- 
ous in  equity  than  in  law.  But  there  was  another 
teas  m  why  parlies  ought  to  come  prepared  lo  go 
through  ihe  trial  ot'their  causes.  Ti  ue,it  they  could 
not  oe  prepared,  tney  might  put  off  a  cause  on  the 
usuil  teims,  as  is  done  in  courts  of  law;  but  when 
they  began  a  trial  there  wan  an  additional  and  co- 
gent reason  tor  not  suffering  it  to  be  postponed 
from  time  to  time,  tor  that  pievents  the  despatch 
of  justice — it  creates  those  delajs  which,  more 
(run  anything  else,  have  called  tor  a  reform  ot  the 
jadtciaf system  B.it  again,  the  gentleman  asks, 
it  he  wants  to  make  a  case  when  the  judge  from 
a  distinl  county  comes  to  hold  the  circuit,  where 
should  he  find  the  judge?  For  when  he  breaks 
up  he  goes  off  and  perambulates  through  the  other 
counties  of  the  Stale.  Well,  it  the  gentleman  had 
a  supreme  court  on  nis  own  system  would  he  not 
be  subjected  to  the  same  difficulties?  It  did  not, 
he  admitted,  appear  that  that  gentleman's  own 
plan  proposed  to  have  judges  of  one  side  of  the 
state  to  sit  on  the  other  side;  but  why  he  could 
not  find  a  jud.a  lo  make  out  his  case  by  the  plat 
of  the  maijnty  of  the  committee  as  well  as  by  hi* 
own,  he  (Mr.  J.)  could  not  distinctly  perceive. — 
By  his  own  plan  he  would  have  to  follow  him 
fr  jm  one  end  ot  his  half  the  state  to  the  other. — 
There  was  about  the  same  dilh'cul  y  in  each;  but 
it  was  a  very  easy  matter  to  transmit  a  letter  and 
papers,  in  thesi  days  of  reduced  postage,  from  one 
part  ot  ihe  stale  to  the  other — from  New  York  lo 
Chaulauque,  or  from  Chautauque  lo  Oswego. 

Mr.  MARVIN  said  he  interred  that  the  gentle- 
man from  Columbia  had  fallen  into  an  error  in  re 
lation  to  the  system  he  (Mr.  M.)  had  the  honor  to 
present.  In  his  plan  he  left  the  court  ot  commot 
pleas  on  i;s  present  tooting,  simply  providing  tha 
there  shall  be  a  president  judge  tor  seveial  coun- 
ties. Upon  those  president  judges  he  conferrec 
equity  jurisdiction,  and  not  on  the  judges  of  the 
supreme  comt.  This  common  pleas  judge  tor 
four  or  five  counties  would  of  course  be  local;  am 
it  appeared  to  him  that  they  must  have  local  judg- 
es to  do  this  equiiy  business,  inasmuch  as  al 
agreed  to  get  rid  ot  masteis  and  examiners  in  chan- 
cery. Hence  it  was  that  he  h.id  said  they  would 
have  their  equity  judges  to  transact  the  businesb 
within  a  reasonable  distance.  He  expected  to  113 
Causes  before  lhte>e  judges  as  the  gentleman  fron 
Columbia  intended  bfftffe  circuit  judges  ;  but  he 
being  in  ihe  neighborhood,  there  would  be  no  dit 
fi..-ulty  in  applying  to  him  in  the  ca-es  referred  to 
Mr.  JOKDAiN  said  he  (Mr.  M.)  must  bespeak 
ing  of  a  plan  in  his  o.vn  mind,  but  his  (Mr.  J.'s 
remarks  were  applicible  to  both.  The  presiden 
judge  of  his  system  would  nor  be  stationary,  and 


ie  understood  tlmt  his  supreme  judges  were  to 
iold  circuits,  lie  did  no*  there/ore  get  quite  rid  of 
he  difficulty  either  in  law  or  in  equiiy.  The 
equity  judges  would  have  a  large  number  ol  coun- 
its — the  supreme  jidges  still  larger. 

Mr.  MARVIN  interposed  and  explained  that  he 
imposed  twelve  or  thirteen  judges,  and  it  might 
)e  necessary  to  increase  them. 

Mr.  JORDAN  said  the  Legislature  could  in- 
crease the  twelve  or  thiiteen  judges  to  eighteen, 
t  thirty,  or  e*en  sixty,  which  would  be  an  ex- 
ceedingly objectionable  feature.  But  he  did  not 
nean  to  find  fault  with  the  gentleman's  plan,  or 
the  plan  of  any  one,  but  he  did  desire  to  say  that 
t,  according  to  the  gentleman's  plan,  the  state 
was  to  be  districted,  and  they  must  have  traveling 
resident  judges,  they  must  meet  with  more  or 
ess  difficulty.  The  president  judge  could  not 
iv*e  in  the  town  of  every  lawyer,  nor  yet  in  every 
coumy.  For  those  who  lived  near  him,  or  within 
a  convenient  distance,  he  could  do  business ;  bnt 
or  otheis,  wh<>  were  distant  ten,  twemy,  or  forty 
niles,  the  difficulty  would  remain.  He  did  not 
now  see  any  great  inconvenience  of  which  the 
gentleman  complained,  that  was  cured  by  his  own 
system.  V\  hat  matt  red  it  to  a  lawyer,  who  wish- 
ed to  settle  a  case,  if  the  juuge  was  forty  or  one 
tiundred  and  forty  miles  ofi  ?  It  was  haidly  lo  be 
supposed  that  the  lawyer  was  to  travel  that  dis- 
tance merely  tosettle  a  case,  unless  he  could  unite 
some  pleasure  of  his  own  with  it.  If  a  lawyer 
was  dissatisfied  with  a  verdict,  he  would  dtaw  up 
his  case,  and  serve  a  copy  on  his  adversary.  If 
his  adversary  was  dissatisfied  with  the  dralt,  he 
would  propose  an  amendment  in  writing — both, 
wiih  explanatory  remarks,  if  necessary,  would  be 
sent  to  the  judge,  who  would  settle  the  case,  and 
send  it  back.  Postage  is  cheap,  and  cornrnun  ca- 
tion is  safe  and  rapid,  and  but  very  little  inconve- 
nience would  be  felt.  Now,  me  word  as  to  the 
plan  of  the  gentleman  from  Cattarauiius,  (Mr. 
CROOKER  )  It  presented,  in  his  judgment,  a  veiy 
favorable  amendment  to  this  report  He  did  not 
say  this  with  any  intention  of  relieving  himself 
from  any  of  the  responsibility  which  the  gentle- 
man trom  New  York  cast  on  the  committee,  ac- 
coiding  to  his  idea  of  what  they  intend  to  do  with 
the  report,  namely — to  carry  it  through  line  by 
line  and  letter  by  letter.  He  was  glad  to  see  any 
gentleman  ptopose  amendments  that  would  im- 
prove it.  Indeed  there  were  some  things  in  the 
report  which  he  should  himself,  upon  more  mature 
reflection,  movefo  amend  at  the  proper  time. 

The  gentleman  from  Cattaraugus  had  submit- 
ted an  amendment  which  struck  him  very  favor- 
ably ;  he  saw  nothing  in  it  to  conflict  with  the 
fundamental  principles  of  the  system  they  had 
presented.  In  a  wise  economy,  the  gentleman 
had  avoided  the  multiplying  of  officers,  and  he 
had  proposed  no  new  office  to  be  created.  There 
was  the  surrogate  for  each  county — and  there 
must  be  one.  He  has  duties  to  perform  of  a  local 
character  ;  but  they  were  not  sufficient  to  engross 
all  his  time.  He  ought  to  be  a  man  of  learning 
arid  discretion,  and  it  was  to  be  presumed  he 
would  be  so.  Now  this  plan  proposes  to  make 
that  surrogate  the  first  judge  of  the  county.  He 
was  to  be  elected,  and  would  be  chosen  with 
reference  to  the  entire  duties  of  his  station.  The 
plan,  as  he  understood  it,  proposed  to  have  this 


704 


county  judge,  with  two  justices  of  the  peace,  se- 
lected by  the  board  of  supervisors,  hold  the  courts 
of  general  sess  on,  and  try  all  offences,  the  pun- 
ishment ot  which  does  not  exceed  ten  years  im- 
prisonment in  a  state  prison.  It  was  not  intend- 
ed to  allow  him  to  imprison  for  life,  or  to  inflict 
the  punishment  of  death;  and  all  that  was  very 
well,  for  in  those  higher  cases  of  offence  it  was 
proper  that  the  trial  should  be  by  judges,  if  not 
of  a  higher  grade  of  intellect  yet  of  superior  rank. 
This  plan,  therefore,  in  this  respect  was  a  favor- 
able amendment.  The  plan  of  the  majority  of  the 
committee  had  not  provided  any  court  of  criminal 
jurisdiction  but  the  oyer  and  terminer.  It  had 
not  specially  provide4  that  all  crimes  should  be 
tried  by  the  oyer  and  terminer,  but  it  had  left 
that  to  be  inferred,  and  such  was  his  idea.  Now 
here  were  gentlemen  who  were  declaring  that  the 
committee's  plan  would  break  down,  while  oth- 
ers on  the  contrary  were  complaining  that  it  was 
too  large;  for  himself  he  would  say  that  the  com- 
mittee had  labored  to  produce  something  be- 
tween the  two  extremes,  making  it  neither  too 
small  that  it  would  be  inefficient,  nor  too  large 
that  it  would  provide  sinecures  and  by  its  ex- 
pensa  be  burdensome  to  the  people.  The  report 
as  made  was  the  conclusion  to  which  the  commit- 
tee had  come,  and  he  still  believed  it  would  be 
sufficient. 

The  plan  of  the  gentleman  from  Cattaraugus 
however  they  could  adopt  without  any  additional 
expense  or  any  new  offices ;  they  could  thus  re- 
lieve the  supreme  court  of  all  general  sessions 
duties  and  have  those  duties  as  well  performed; 
it  was  calculated  to  allay  the  fears  of  those  who 
thought  the  system  had  not  sufficient  strength. — 
He  knew  that  the  ordinary  run  of  justices  of  the 
peace  were  not  capable  wisely  to  discharge  the 
duties  of  a  criminal  judge.  Still  there  are  re- 
spectable men  among  them,  many  that  were  ca- 
pable—  there  must  of  course  be  preferences; 
they  could  always  find  two  in  the  county  that 
were  competent  to  discharge  such  duties  as  well 
as  those  who  have  heretofore  done  them,  and 
thus  they  would  have  a  safe,  convenient,  and  re- 
spectable court  of  sessions,  made,  he  might  say, 
out  of  nothing,  by  the  inventive  genius  of  his 
friend  from  Cattaraugus,  for  he  has  suggested  a 
plan  by  which  a  county  court  can  be  created,  and 
a  class  of  business  taken  from  the  supreme  court 
judges,  and  yet  cost  us  comparatively  nothing. — 
He  was  not  aware  how  the  gentleman  intended 
these  judges  should  be  paid,  whether  out  of  the 
county  or  the  state  treasury,  but  he  presumed  the 
Surrogate  would  receive  a  salary,  and  the  justi- 
ces of  the  peace  a  per  diem  allowance.  There 
was  another  thing  about  that  amendment  to  be 
approved.  Some  gentlemen  have  complained  be- 
cause there  was  no  place  into  which  all  the  ir- 
re"-ular  or  miscellaneous  business  of  the  county 
courts  should  be  thrown — and  that  was  some  ob- 
jection. It  was  not  necessary  to  go  into  that 
question  at  this  time.  He  hoped  the  gentleman's 
amendment  would  pass  if  the 'plan  of  the  com- 
mittee did.  It  should  pass  if  his  vote  could  pa^s 
it.  He  would  give  to  it  the  miscellaneous  power 
which  the  couuty  courts  have  been  in  the  habit 
of  exercising,  and  that  by  a  general  law  which 
might  be  drawn  in  three  lines.  This  certainly 
would  answer  one  class  of  objectors,  who  com- 


plain that  the  courts  of  the  majority  report  would 
not  be  able  to  discharge  all  the  duties  that  would 
devolve  upon  them.  Mr.  J.  thought  those  gen- 
tlemen were  mistaken.  He  thought  their  system 
would  provide  for  the  despatch  of  all  the  business 
without  the  aid  of  the  amendment  of  the  gentle- 
man from  Cattaraugus,  but  with  it,  he  felt  entire- 
ly certain.  He  had  now  explained  the  working 
of  this  system,  and  would  barely  take  up  and  run 
through  consecutively  and  very  briefly,  the  march 
of  a  cause  onward  from  the  highest  court,  bv  way 
of  recapitulation.  He  should  say  nothing  "about 
the  justices  of  the  peace,  because  they  were  to 
be  regulated  by  the  legislature.  The  committee 
intended  to  recognize  them  as  existing,  and  that 
was  all  that  was  necessary.  He  believed  the 
amendment  of  the  gentleman  from  Cattaraugus 
contemplated  an  appellate  jurisdiction  from  those 
courts  to  the  county  court,  but  it  was  not  his  de- 
sign to  say  anything  about  that  at  present. 

Mr.  LOOMIS  enquired  if  the  gentleman  design- 
ed to  give  to  the  surrogate  an  appellate  jurisdic- 
tion. 

Mr.  JORDAN  said  he  meant  to  give  it  to  him 
as  a  judge  of  the  county  court  to  a  limited  extent 
— so  he  understood  the  proposition. 

Mr.  SIMMONS  said  the  surrogates  were  not  to 
be  compared  to  the  justices  of  the  peace  in  point 
of  talent. 

Mr.  JORDAN  remarked,  that  was  a  matter  of 
opinion. 

Mr.  SIMMONS  :  Not  at  all, 
Mr.  JORDAN  said  the  gentleman  from  Essex 
seemed  to  have  made  up  his  mind  pretty  po«itive- 
ly,  and  he  had  no  wish  to  disturb  it  if  he  could. 
He  knew  there  were  some  surrogates  that  would 
not  compare  with  some  justices,  but  if  the  sur- 
rogates were  not  what  they  should  be,  he  hoped 
.ve  should  make  them  what  they  ought  to  be. 

Mr.  CROOKER  said  that  was  his  object  in  of- 
fering this  amendment.  He  desired  to  make  them 
what  they  ought  to  be. 

Mr.  JORDAN  repeated  that  he  should  vote  for 
that  amendment.  He  thought  such  an  organiza- 
tion would  be  better  for  those  who  get  their  law 
suits  up  in  justices  courts  for  small  sums.  It  was 
better  if  the  decision  was  not  so  clearly  and  deci- 
dedly according  to  law,  to  have  an  end  put  to 
them,  than  to  have  them  thrown  by  a  succession 
of  appeals,  and  at  a  ruinous  expense  into  the  court 
of  last  resort.  He  would  give  them  exclusive 
appellate  jurisdiction  in  cases  not  exceeding  $25; 
but  over  that  amount  he  would  allow  the  parties 
to  go  to  the  supreme  court  of  the  district,  which 
would  become  a  domestic  kind  of  court.  But 
when  a  party  is  dissatified  with  a  decision  of  fact 
in  a  justices'  court,  he  would  have  him  put  his 
case  in  writing  and  go  to  the  court  consisting  of  the 
surrogate  or  justice  alone,  either  of  whom  should 
be  capable  of  determining,  and  if  it  was  found 
that  a  mistake  was  made,  or  that  injustice  had 
been  done,  the  case  might  be  sent  back  for  trial 
in  the  town  from  which  it  came,  or  to  some  other 
adjacent  town.  He  would  always  have  the  facts 
settled  in  the  town  courts.  He  never  would  suf- 
fer an  appeal  from  any  of  these  courts  to  take 
twelve  men  of  the  county  and  occupy  their  time, 
and  that  of  a  county  court  in  the  trial  matters  of 
facts  from  justices  courts;  but  if  any  questions  of 
law  arose,  then  let  the  county  court,  if  under 


705 


$25,  or  the  supreme  court  if  over,  put  an  end  to 
the  matter.  There  were  many  cases  in  justice's 
courts  not  over  $10. 

Mr.  RICMOND  interposed  and  inquired  if  the 
gentleman  from  Columbia  intended,  when  an  ap- 
peal goes  up  to  the  Surrogate  to  make  that  final. 
Mr.  JORDAN  said  -he  was  just  endeavoring  to 
tell  the  gentleman.     For  sums  amounting  to  not 
more  than  $25  he  would  have  the  case  kept  there. 
He  would  almost  be   willing  to  do  as   England 
does — have  no  justice  under  forty  shillings,  rath- 
er than  suffer  parties  from  angry  feelings   to   run 
through  all  the  courts  with  causes   of  mere  tri- 
fling amount.     But  when  they  come  up   to   $100 
or  to  a  sum  approaching  the  limits  of  the  justices' 
jurisdiction,  he  thought  there  should  be  a  greater 
latitude.     Thus  then    they    had  their    justices' 
courts  ;  they  had  their  appeals  to  the  county,  and 
in  cases  of  sufficient  magnitude  to  the   supreme 
court.     He  had  said  much  more   on   this  subject 
than  he  had  at  first  intended  and  he  begged  gen- 
tlemen would  ask  him  no  more  questions  lest  he 
might  never  stop.     The  business  of  justices  court 
making  was  out  of  the  pale  of  constitution  making. 
He  had  designed  in  his  recapitulation  merely   to 
say  that  a  suit  could  be   commenced   in   the   su- 
preme court  and  put  at  issue  as   at   present — cir- 
cuits would  be  held  often  and  long  enough  to  try 
every  cause  when  ready  for  trial — a  review  might 
be  had  in  bane  at  the  next  term  which  would  fol- 
low close  upon  the  circuit,   a  prompt  decision 
would  be  had  there,  and  if  unsatisfactory  to  eith- 
er party,  it  was  but  a  short  step  to   the   court  of 
appeals,  where  it  could  be  disposed  of  with  equal 
promptitude — with  so  simple  a  practice   and  so 
great  dispatch,  justice  could  be  done  and  cheaply 
done,  and  hundreds  of  dollars  saved,  many  times 
in  the  prosecution  of  a  single  suit.     He  conceiv- 
ed it  to  be  one  of  the  acceptable  features  ot   this 
organization,  that  while  it  gave  the   counsel  for 
the  parties  an  opportunity  for  full   discussion,  it 
lessened  the  number  of  appeals.     They  had  been 
too  numerous,  and  produced  too  much   delay  and 
expense.     This   allowed   of    but  one,    and   that 
from   the   supreme   court  to   the   court   of   ap- 
peals.    At    the    same    time   it   gave   an    oppor- 
tunity to   the  litigant  to  compel   his   adversary 
to   show    his  hand,   before   the    final   argument 
of  the  court  of  appeals — a  circumstance   whicl 
would    prevent    surprise    by    any    new    points 
springing  up,  for  which  he  had  not  had  time  fully 
to  prepare.     He  would  explain  how  this  woulc 
be  effected.     The  judge  who   tries   the   cause   at 
nisi  prius,  does  business  rapidly,  and  is  liable  to 
err.     The  cause  is  transferred  to  the  bench  by   a 
simple  notice,  for  review  ;  it  is  then  fully  arguec 
and  this  is   done  before  judgment  is   entered. — 
Here  counsel  are  obliged  to  apprise  their   adver 
sary  of  all  their  points  ;  after  that,   if  an  appea 
is  brought  to  the  court  of  appeals,  each  party  be 
ing  apprised   of  his   adversary's   ground,   having 
had  lull  time  to  prepare,  may  put  forth  his  whole 
strength,  and  there  is  an  end  of  the   litigation.— 
Mr.  J.  considered  it  not  improbable   that   unde 
this  system,  causes  might  be  presecuted   througl 
the  supreme  court,  to  final  judgment  in  the  cour 
of  appeals,  in  less  than  twelve  months.     The  su 
prerne  court  is  the  great  fountain  of  original  ju 
risdiction  in  law  and  equity,  and  the  court  of  ap 
-peals  is  the  end  of  the  law   in  both   branches. — 


Jnder  such  an  organization,  there  would  be  few 
ppeals  : — first,  because  lew  suits  of  a  frivilous  or 
roundless  character  would  fee  prosecuted,  as 
here  would  be  but  little  chance  of  success  in  a 
ourt  of  original  jurisdiction  of  so  high  a  charac- 
er ;  and  second,  because  that  court  would  make 
>ut  few  mistakes.  They  would  have  ample  time 
Dr  examination  ;  they  would  possess  the  confi- 
lence  of  the  community  ;  and  he  had  no  doubt 
he  thirty-two  judges,  with  the  four  additional 
udges  of  appeals,  would  be  able  to  do  all  the  bu- 
iness.  He  was  fully  satisfied  that,  with  the  aid 
iroposed  by  the  amendment  of  the  gentleman 
rom  Cattaraugus  (Mr.  CROOKER,)  to  relieve  the 
upreme  court  of  sessions  business,  they  would 
je  most  amply  able.  If  it  proved  to  be  otherwise 
le  should  be  greatly  disappointed. 

There  had  been,  among  others,  a  plan  present- 
d  by  the  honorable   delegate  from  Chautauque 
Mr.  MARVIN),  which,  for  its  matter,  and   the 
pint  with  which   it  had  been  brought  forward, 
/vas  entitled  to  great  consideration.     But  he  did 
lot  intend  to  go  into  an  examination  of  that  now, 
>r  any  other  of  the  numerous  plans  on  hand,  any 
urther  than  he  should  find  it  necessary  to  do  so 
n  vindicating  thai  of  the  committee.     The  latter 
tfas  now  the  basis  of  their  action,  and  if  it  proved 
acceptable  to  the  convention,  with  such  amend- 
ments as   it  might  receive  from  their   hands,  it 
.vould  be  unnecessary  to  spend  time  on  the  oth- 
ers.    Should  it  prove  otherwise,  then  it  would  be 
)roper  to  take  up  some  other  distinct  plan,  and 
nake  that  the  basis  of  action,  when  he  (Mr.  J.) 
would  give  it  his  most  thoughtful  attention.     He 
thought  there  might  be  faults  pointed  out  in  each 
of  them,  though  that  was  not  now  his  purpose. 
Of  the  whole  number,  however,  he  would  now 
say,  that  of  the  gentlemen  from  Chautauque  (Mr. 
MARVIN)  came  nearest  to  his  views.     Its  most 
objectionable  feature  was  that  of  a  court  of  com- 
mon pleas,  with  co-ordinate  civil  jurisdiction. — 
Mr.  J,  could  not  conceive  the  necessity  of  having 
our  courts  complicated,  when  they  might  be  sim- 
ple.    Why  have  two  tribunals  working  upon  ex- 
cetttric  circles,  when  one  upon  a  concentric  cir- 
cle, would  perform  all  the  duties  required  ?  Why 
have  two  organizations,  two  clerks,  two  clerks' 
offices,  two  sets  of  rules  and  systems  of  practice, 
two  grand  and  petit  juries,  when  one  would  an- 
swer in  every  respect  as  well  ?     Why  have  a  sub- 
ordinate court,  thereby  adding  one  to  the  number 
of  appeals,  before  reaching  the  court  of  dernier 
resort  ?     Why  have  one  court  of  greater,  and  ano- 
ther of  lesser  dignity,  except  to  circumscribe  the 
confidence  of  the  public  in  the  latter  ?     The  na- 
tural result  of  which  must  be  to  promote  a  spirit 
of  litigation,  and  prolong  it  by  multiplied  appeals. 
Whatever  of  superior  dignity  was  conferred  on 
one,   would   proportionably   be   subtracted  from 
the  other,  and  impair  its  usefulness.     He  could 
not  believe  it  wise  to   have  two  courts  of  exactly 
the  same  original  jurisdiction,  and  yet  the  one 
subordinate  and  subject  to  review  of  the  other,  so 
long  as  one  could  do  all  the  business,  and  do  it  as 
near  to  the    residence   and   convenience   of  the 
suitors  as  the  other. 

Thrfre  seemed  lo  be  with  some,  a  peculiar  charm 
in  the  idea  ot  a  couit  of'  common  pleas.  It  wal 
said  (o  be  an  old  mend  and  companion  of  the  peo- 
ple— with  whouj  they  had  become  acquainted  and 

63 


706 


familiarized,  and  would  not  therefore  willingly  re- 
linquish it.  He  was  not  aware  of  any  such  feel- 
ing. He  believed,  with  the  exception  of  a  lew 
counties,  it  was  considered  a  nuisance,  and  that 
we  were  called  on  to  abate  it.  True  itwas.th^  in 
some  ot  the  counties,  able  men  had  presided;  but 
they  were  rare  exceptions  to  the  general  rule. — 
There  were  few  such  men  to  be  found  among  us, 
who  would  or  could  afford  to  forego  fell  pecunia- 
ry considerations,  and  devote  their  time  and  ta- 
Jents  to  the  public  service.  Whenever  such 
could  be  found,  the  discernment  of  the  people,  he 
trusted,  would  be  sure  to  place  them  upon  the 
bench  of  the  supreme  court,  under  the  new  or- 
ganization, proposed  by  the  committee.  The  idea 
of  a  court  of  common  pleas  was,  in  the  early  pe- 
riod of  our  political  existence  diawn  from  the 
British  constitution.  He  did  not  propose  to  dis 
course  upon  its  origin;  but  every  lawyer  knew 
how  it  had  sprung  up  in  that  country.  In  the 
council  of  wise  men  of  her  Saxon  ancestors,  and 
afterwards  in  the  regal  hall  of  her  kings,  was  con- 
centered all  judicial  power,  criminal,  civil,  and 
ecclesiastical.  In  the  growth  of  that  people,  it 
became  inconvenient  to  have  all  these  powers 
blended,  and  the  civil  jurisdiction  of  pleas  was 
allotted  to  a  separate  court,  called  the  common 
pleas,  which  took  cognizance  ot  all  matters  aris- 
ing from  contracts.  For  the  same  reasons,  at  a 
later  period,  jurisdiction  of  trespasses  and  crimes 
was  allotted  to  another  separate  court,  called  the 
king's  bench.  These  jurisdiction*  for  a  long  time 
remained  separate  ;  buf,  as  a  natural  consequence 
f  a  mere  arbitrary  separation,  without  any  natu- 
°al  or  convenient  necessity,  the  king's  bench  ex- 
'ended  its  jurisdiction  over  all  matters  arising  on 
^contract.  The  common  pleas  retaining  its  original 
jurisdiction,  the  two  became  co-ordinate;  but 
both  courts  have  been  kept  up,  because  both  have 
been  no  more  than  was  necessary  to  the  discharge 
of  the  judicial  duties  oi  the  realm. 

In  forming  our  constitution  of  1777,  when  we 
had  not  yet  emerged  from  the  Revolution,  our 
predecessors,  who  had  been  brought  up  under 
royal  institutions,  naturally  framed  their  own, 
somewhat  in  analogy  to  those.  They  recognized 
the.  existence  of  the  courts  as  they  were ;  they 
had  not.  time  nor  was  it  then  necessary  to  consid- 
er how  they  could  be  improved  ;  they  were  well 
enough.  With  the  supreme  court  as  it  then  was, 
we  required  some  other  court  to  do  a  portion  of 
the  business  ;  but  with  it  as  we  propose  it  shall 
be,  there  is  no  such  necessity — we  are  in  an  age 
of  improvement — we  are  engaged  in  the  business 
of  reform — our  judiciary  must  be  re-organized; 
let  us,  therefore,  study  its  structure  and  make  it 
a  simple,  efficient,  rational  system.  We  are  not 
like  England,  wedded  to  her  errors  because  they 
are  ancient;  we  are  a  people  of  a  different  genius 
— stamped  upon  us  by  different  institutions;  we 
;:  re,  thank  God,  a  self-governing  democratic  peo- 
ie,  all  occupying  the  same  level,  all  having 
»jual  wants,  equal  privileges,  and  equal  rights, 
o  class  whose  distinct!  vepriviieges  begets  a  hor- 
i  or  of  reform,  lest  the  lower  orders  should  usurp. 
In  England,  all  is  stable;  here  all  is  changing. — 
'i  here  a  man  reveres,  as  sacred  the  ancient  stone 
walls  of  the  family  mansion  occupied  by  his  an- 
cestors a  thousand  years  ago,  however  uncouth  or 
inconvenient ;  here  we  would  demolish  them  and 


build  better.  But  even  in  England,  while  their 
courts  remain  the  same,  important  steps  in  legal 
reform  have  lately  taken  place.  Let  us  then  look 
at  the  question  before  us  with  a  single  eye  to  the 
utility  of  this  double  organization,  embracing  a 
court  of  common  pleas,  and  not  content  ourselves 
with  saying  it  must  be  so  because  it  has  been  so. 
I  do  insist,  sir,  with  a  supreme  court  that  can  do 
all,  we  want  no  common  pleas  to  do  a  part.  ;  with 
large  lights  we  have  no  need  of  small  lights — 
with  a  court  of  high  dignity  we  have  no  need  of 
one  of  low  dignity.  He  had  now  done  with  the 
particular  features  of  that  gentleman's  (Mr.MAR- 
vm's)  plan,  and  all  others  but  that  of  the  com- 
mittee. He  had  no  design  to  notice  them  now, 
except  so  far  as  necessary  to  vindicate  the  report 
under  consideration  against  the  objection  that  it 
had  no  common  pleas  or  county  courts. 

He  (VJr.  J.)  would  now  examine  the  objections 
raised  in  other  quarters.  Ke  judged  troin  the 
standing  of  the  honorable  gentleman  from  Oneida, 
(Mr.  KIRKLAND,)  and  from  New  Yoik,  (Mr.  CT- 
CONOR,)  and  from  Ehautauque,  (Mr.  MARVIN,) 
and  from  Ontario,  (Mr.  WORDEN,)  that  e'^ry  ob- 
jection had  been  raided  ih<-.t  could  be.  If  such 
minds  could  not  rind  others,  he  for  one  was  quite 
certain  they  did  not  exist  in  fact  or  in  fancy.  His 
frieiid  from  Oneida  had  objected  th.it  the  supreme 
court  was  too  large — with  thirty  1  wo  judges,  hold- 
ing courts  in  bane  in  different  places,  it  would  not 
be  as  dignified,  would  not  have  as  much  of  the 
confidence  arid  respect  of  the  people  as  a  single 
tribunal  of  less  numbers  He  had  already  intima- 
ted that  he  thought  there  was  not  much  in  this 
idea  of  dignity.  He  would  add,  that  dignity  in 
this  republican  country  consi.-ted  in  merit  alone  ; 
all  that  was  required  here  was,  that  a  man  should 
be  upright  in  his  dealings,  impartial  in  his  judg- 
ments, gentlemanly  in  his  conduct,  and  *o  tar  se- 
lect in  his  associations  as  not  to  herd  with  scoun- 
drels or  blackguards.  He  might  and  ought  to  m-at 
every  man  as  a  gentleman  who  was  correct  in  his 
morals,  respectable  in  his  attainments,  and  decent 
in  his  personal  habits.  Who  would  fall  sboit  ot 
this  would  fall  from  the  true  dignity  of  our  repub. 
lican  standard — who  would  go  beyond  it  would  be 
deemed  an  aristocrat,  and  he  would  advise  him  to 
emigrate;  not  that  he  would  be  unsife,  but  thar 
he  would  find  himself  uncomfortable  ;  in  some 
peculiar  districts  where  semi-lynch  law  prevails, 
he  (Mr.  J.)  would  not  be  answerable,  but  in  this 
sober  state,  contempt  for  his  weakness  would  limit 
his  punishment. 

Now,  sir,  (said  Mr.  J.)  allow  me  to  suggest  that 
my  friend  from  Oneida  hus  not  placed  his  notions 
of  dignity  upon  the  right  foundation.  What  could 
present  a  more  sublime  spectacle  before  the  world, 
than  thirty-two  gentlemen  of  moral  worth,  hiyh 
intellect,  highly  cultivated,  deeply  imbued  with 
the  spirit  of  our  republican  government,  adminis- 
tering law  and  equity  to  three  millions  of  people. 
One  of  them  comes  down  to  the  gentleman's  conn- 
ty  (Oneida)  to  hold  a  circuit.  Who  that  remem- 
bered the  workings  of  our  judicial  system  under 
the  constitution  of  1777,  would  not  say  that  he 
would  command  the  respect  and  confidence  of  the 
people?  Three  of  them  come  into  the  same  coun- 
ty to  sit  in  bane.  What  would  detract  from  the:r 
dignity?  Certainly  not  the  stnallness  of  their 
number,  for  but  three  judges  have  constituted  our 


707 


supreme  court  in  bane  for  the  last  twenty-fiv< 
- — certainly  not  (hat  (here  were  twenty-seven 
others  of  'equal  rank  performing  similar  services  in 
other  parts  of  'he  stale,  and  all  having  full  em- 
ployment, lie  could  not  think  his  friend  from 
Cm-id.)  had  drawn  his  notions  of  dignity  from  a 
u  suited  to  our  political  condition  ;  neverthe- 
w;is  a  matter  of  opinion  between  them,  and 
he  hoped  they  might  differ  and  yet  not  disagree! 
Another  objection  to  {he  majority  report,  was 
that  the  judges  could  not  sit  together,  which  was 
an  unheard  of  anomaly,  that  they  professed  to  be 
a  unit,  while  they  vere  in  fact  several.  It  was 
not  the  first  time  a  Christian  people  had  heard  of 
unities  which  this  might  humbly  imitate.  There 
!;'>thing  in  the  objection  unless  it  was  shown 
iuence  that  the  machine  would  work 
discordantly.  Their  inability  to  sit  together  he 
had  already  incidentally  noticed.  On  great  occa- 
sions they  might  convene ;  and  they  must  meet 
at  least  as  often  as  once  a  year;  they  should  be 
required  by  law  to  do  so,  in  order  to  establish  and 
from  time  to  time  review  and  improve  their  rules 
of  practice  and  procedure.  At  those  meetings 
ai  would  be  drawn  from  multiplied  experi- 
ence. They  would  be  made  acquainted  with  the 
il,  practical  operations  of  the  system  over 
the  whole  state,  and  they  would  apply  such  rem- 
edies as  were  left  within  their  power.  Three 
\MTC-  sufficient  to  hold  a  bane  court — that  factwaa 
established  by  long  experience.  Ten  judges  sit- 
ting together  could  do  no  more  in  hearing  argu- 
ments and  rendering  judgments  than  three.  It 
nly  by  multiplying  their  powers  of  despatch 
that  the  remedies  called  for  could  be  applied. — 
Almost  every  gentleman  who  had  found  fault 
with  the  FMJor  ly  report,  had  in  one  form  or  ano- 
ther advocated  a  court  with  these  multiplied 
powers,  or,  as  they  had  chosen  to  call  it,  a  "  Di- 
vided Court" — some  in  greater  and  some  in 
smaller  numbers.  The  gentleman  from  Oneida 
hod  six  in  the  form  of  six  district  superior  courts. 
The  gentleman  from  New  York  had  fifty-nine  of 
them  in  the  form  of  courts  of  common  pleas.  The 
gentleman  from  Chautauque  had  eight  to  twelve, 
in  the  form  of  president  courts,  besides  supreme 
courts  in  bane.  The  gentleman  from  Seneca  (Mr. 
BASCOM)  did  not  essentially  disagree  with  the 
majority  report,  if  he  principle  was  conceded — 
it  must  be  conceded,  or  we  had  no  relief;  and  he 
could  see  no  evil  in  it  so  long  as  we  had  our  court 
oMast  resort  to  hold  a  steady  helm.  Nor  could 
aceive  it  to  be  of  much  importance  by  what 
name  they  were  called.  In  most  matters  there 
was  but  little  in  a  name — in  this,  nothing. 

But  there  was  another  objection,  and  it  was 
one  at  which  he  would  not  say  he  was  astonish- 
i-  there  was  nothing  at  which  he  should  be 
astonished.  The  freedom  of  thought  and  debate 
riii  a  body  like  this  would  justify  it,  and 
he  had  reason  to  rejoice  rather  than  regret  that 
it  had  been  brought  forward.  "  There  will  not," 
say  gentlemen,  "be  any  uniformity  of  decisions 
amongst  }  our  eight  supreme  courts  in  bane." — 
He  would  in -I  Miy  this  might  not  be  possible,  nor 
could  he  say  it  was  not  possible  the  "  sky  might 
fall"  and  wo  "  catch  larks ;"  but  he  considered 
one  about'  as  probable  as  the  other.  That  these 
thirty-two  judges,  all  belonging  to  the  same  tri- 
bunal, all  learned  in  the  law,  all  familiar  with 


the  decisions  of  the  appellate  court,  all  desirous 
of  doing  their  duty,  all  intermingling  their  labors, 
all  in  constant  and  familiar  communication  with 
each  other,  should  willfully  attempt  to  establish 
conflicting  .rules  of  law,  was  utterly  out  of  the 
questio^  ;  that  they  might  fall  into  error  was  pos- 
sible, but  the  evil  would  be  temporary,  so  long 
as  the  court  of  appeals  regulated  all,  and  if  tem- 
porary disagreements  upon  new  and  difficnlt 
questions  should  arise,  they  would  at  once  cor- 
rect them.  And  how,  he  would  ask,  could  the 
objectors  secure  a  uniformity  of  decision  in  their 
fifty-nine  courts  of  common  pleas,  or  in  their  dis- 
trict superior  or  president  district  courts,  but  by 
the  same  means  ?  How  had  it  been  secured  for 
the  last  twenty-five  years,  with  our  eight  circuit 
judges  and  numerous  county  courts,  but  by  the 
supervisory  power  of  the  higher  tribunals. — 
Among  the  weighty  objections  raised  by  the  gen- 
tleman from  Oneida,  another  is  that  if  would  be 
impracticable  to  keep  a  muster  roll  of  this  army 
of  judges.  He  (Mr.  J.)  had  not  been  aware  that 
such  a  document  would  be  required;  if  it  were 
however,  he  had  no  doubt  a  competent  person 
might  be  selected  who  would  take  upon  himself 
that  duty  for  a  trifling  compensation.  He  thought 
a  serjeant  of  the  Burgesses  Corps  might  be  found 
whose  education  in  that  line  of  duty  would  be 
useful,  and  that  a  salary  of  ten  dollars  a  year 
would  secure  his  services  to  the  extent  required. 
He  thought  great  numbers  of  objections  of  equal 
weight  might  be  overcome  without  any  ruinous 
consequences ;  as  they  did  not  go  to  the  ground 
work  of  the  system,  however,  he  considered  it 
unnecessary  to  spend  much  time  upon  them,  and 
it  would  not  have  occurred  to  him  that  they  de- 
served any  notice  had  they  not  come  from  so  re- 
spectable a  source.  The  arrangement  of  their 
business  among  themselves  had  been  considered 
by  gentlemen  a  matter  of  great  difficulty.  How 
so  vast  a  company  should  alternate  in  holding 
their  circuit  and  bane  courts.  In  what  orbits 
they  could  be  made  to  move  without  producing 
confusion  and  running  into  chaos,  seemed  in  their 
judgment  to  defy  the  powers  of  orderly  combina- 
tion, and  present  insurmountable  difficulties. — 
But  he  (Mr  J.)  was  of  opinion  that  a  little  atten- 
tion to  the  subject  would  make  it  quite  apparent 
that  it  would  be  otherwise.  The  judges  at  their 
annual  meetings,  knowing  how  many  and  what 
courts  Were  to  be  held  for  the  year,  and  the  places 
of  holding  them;  could  in  the  smoking  of  a  cigar, 
between  dinner  and  sunset,  arrange  the  whole 
matter.  They  could  construct  for  themselves  a 
sort  of  judiciary  planetarium  by  which  they  might 
operate  with  all  the  regularity  of  the  solar  sys- 
tem. Sickness  and  casualty  might  sometimes 
intervene,  but  the  system  embraced  forces  enough 
to  admit  of  calling  in  another  judge,  whenever 
they  should  occur.  He  had  no  doubt  the  judges 
would  hold  such  annual  meetings,  for  he  consid- 
ered it  quite  certain  that  the  legislature  would  so 
direct.  It  was  not  in  the  least  probable  that  so 
important  a  duty  as  that  of  forming  rules  of  prac- 
tice and  procedure,  and  of  revising  them  from 
time  to  time  would  be  neglected. 

Again,  it  was  urged  by  the  gentleman  from 
Oneida  (Mr.  KIHKLAND)  lhat  afier  the  u.-rms  in 
bine,  1  he  judges  who  might  have  come  in  from 
other  districts  would  separate;  and  it  would  be 


708 


difficult  for  them  to  meet  again  in  consultation — 
with    this  the  convention  had   nothing  to  do — it 
would  be  their  duty  to  examine  and  decide   then- 
cases  (like  the  supreme  court   at  Washington)   as 
they  were  argued;  and  if  to   the  neglect   of  that 
duty,  they  would  separate,  they  must  see  to  it  that 
they  convened  again  as  best   they    might.      The 
gentleman   from  New  York,  (Mr.  O'ConoR,)    had 
appeared  to  be  staggered  by  some  other  objections, 
somewhat  peculiar  to  himself.     He    had    thrown 
around  them  much  of  the  ornament  and   draper} 
of  rhetoric,  at  the  same  time  he  had  exhausted  his 
powers  of  ridicule  upon  the  report  ot  the  commit- 
tee.    In  his  judgment  the  court  of  appeals  did  not 
sufficiently  resemble  the  old  court  of  errors.      He 
(Mr.  J.)  had  heard  that  objection  urged   nowhere 
else  either  in    or  out  of  the   convention,  and    for 
his  own  part,  he  thought  the  less  resemblance    it 
could  bear  the  more  acceptable  it  could  be  to  the 
public.      His  (Mr.  CXC's)  only  objection  to  the 
present  court  was  that  it  was  substantially  a  branch 
of  the  legislature  and  had  never  been  known   io 
pronounce  a  statute  of  the  State  unconstitutional. 
[Mr.    SIMMONS— That  cannot  be  so!]  With  that 
exception,  he  deemed    it  perfect.     He   (Mr.    J.) 
would  agree  that  the  objection  relerred  to  waa  ot 
great  weight,  and  he  thought  there  were  others  ot 
equal  weight.     He  considered  its  whole  organiza- 
tion defective,     it  was  too   numerous  and  expen- 
sive.    It  was  composed  principally  of  men  uned- 
ucaied  in  the  law.     Their  usual  mode  of  hearing 
arguments  was   loose  and  inattentive.     Memb 
frequently  voting  on  questions  involving  the  high- 
est interests  who  had  heard  but  a  small  portion o 
the    arguments   and    sometimes   when  they    hac 
heard  no  parr ;  ot  late  \ears  **  log  rolling  and  lob- 
bying" had    been    more  or  less   extensively  prac. 
ticed,  the  whole  matter  had  been  too  much  a  game 
of  chance,   in    which  the   most  adroit  and    many 
times  i he  least  scrupulous  ulayer  had  all   the  ad' 
vantage.     He  (Mr.  J.)  had  always   supposed   tha 
when   counsel  had    argued   their  causes,  and    pu 
forth  their  best  efforts,  their  legitimate  work    wa! 
done,  that  no  honorable  counsel  would  approach  ; 
judge,   and  no   right  minded   judge   would    stifle 
himself  to  be  approached,  after  that.     Private  an< 
personal  solicitation  after  a    cause  had  been   sub 
milted  was  a  most  da-igerous  and  corrupting  pr.ic 
tice,  and  he  Mr.  J.  was  as  well  convinced,  as  of  hi 
own  existence  that  such  practices  had  been  resort 
ed  to  and  that  his  clients  had  been  made  the  vie 
tima.     He  desired  no  more  of  it 

The  gentleman  (Mr.  O'C.)  had  further  objected 
that  such  a  supreme  court  as  proposed  by  th 
committee,  could  not  wield  the  prerogative  writs 
such  as  Mandamus,  Quo  Warranto,  Habea 
Corpus,  Sfc.,  a  party  would  not  know  which  c 
the  several  courts  in  bane  to  apply  to.  This  ob 
jection  was  entirely  unfounded.  The  writ 
mandamus  was  a  writ  directed  to  some  inferio 
officer  or  tribunal  commanding  it  to  proceed  i 
the  performance  of  some  public  duty.  The  wr 
of  Quo  Warranto  was  directed  to  an  individue 
or  body  corporate  who  had  usurped  some  office  o 
franchise  &c  ,  commanding  it  to  desist  or  shei 
cause.  The  writ  of  Habeas  Corpus  was  also  ad 
dressed  to  individuals  or  bodies.  Now  the  objec 
tion  he  could  answer  in  a  word.  Tell  me  (sai 
Mr.  J.)  in  which  judicial  district  the  person 
body  resides  or  is  located  in  to  whom  you  wish 


Idress  your  writ,  and  I  will  shew  you   in  the 
me  district,  a  supreme  court  held  by  three  jud- 
es,  (the  same  number  we   now  have)   to  whom 
our  application  should  be  made.     Again, he  ob- 
cted  on  account  of  the  difficulty  in  changing  ve- 
ues  in  cases  where  it  was  necessary.     To  which 
urt  or  board  should  he  apply  ?    The  answer  is 
>  the  court  in  the  district  where  the  venue   is 
id — or,  if  the  legislature  should  think  fit,  they 
light  direct  it  to  be  made   in  the  district  where 
defendant  lived,  or  any  other.     The  honora- 
le   gentleman  (Mr.  O'CoNOR)  seems  to   appre- 
end  that  it  would  be  very  unsafe  for  a  party  re- 
ding in  New-York  to  be  obliged  to   apply  to 
ountry  judges  sitting  in   a  country  district,  and 
ice  versa.     He  seems   to  be  horror  stricken  at 
le  idea  of  being  obliged  to  go,  for  example,  to  a 
udge  in  Delaware  or  Hamilton  to   argue  a  ques- 
on  of  any  kind;  and,  to  avoid  invidiousness,  sup- 
oses  it  would  be  equally  unsafe  for  a  country 
avvyer  to  be  obliged  to  go  before  a  judge  in  the 
ity  of  New-York  for  like  purposes.     He  (Mr.J.) 
ould  entertain  no  &uch  fears.     He  could  not  con- 
ent  to  argue  upon  the  supposition  that  a  judge, 
ither  in  city  or  country,   was  to  be  either  igno- 
ant  or  dishonest ;  and  that  he  could  not  but  per- 
eive,  was  the  whole  basis  of  the  opposing  argu- 
ment.    He  would  trust  to  the  learning  and  integ- 
ity  of  a  Jones  or  an  Oakly,  come  the  party  whence 
le  might,  whether  from  the  country  or  city,  from 
lis   own  state,   or  from  any  foreign   state.     He 
•vould   repose  the  same  confidence   in  the  same 
dnd  of  men,  sitting  any  where,  whether  in  the 
;ity  or  country.  An  upright  and  enlightened  judge 
would  dispense  even  handed  justice,  be  his  loca- 
ion  where  it  might,  in  New- York  or  in  Dela- 
ware, in  this  State  or  in  any  other,   in  this  coun- 
ry  or  abroad,  in  the  civilized  countries  of  Chris- 
er.dom  or  the  PaganRealms  of  the  Calmuc  Tartar — 
an  honest  man  is  an  honest  judge— an  enlightened 
awyer  is  an.able  judge,  be  he  where  he  may— and 
le  (Mr.  J.)  was   sincere  in  the  belief,  that  the 
most  exquisitely  perfumed  dandy  of  the  profes- 
sion in  the  city  of  New-York ,   would  be  as  safe 
n  the  hands  of  a  Delaware  judge,  as  in  the  '«  halls 
of  justice,"  or  the  north-east  room  of  the  city  hall. 
In  the  magnificent  exclusivenes  of  city  life  and 
city  practice,  he  might  probably  feel  inclined  to 
sneer  at  the  "  clod  hoppers"-  of  these  benighted 
regions;  but  he  would  be  agreeably  disappointed, 
when  forced  to  go  among  them,  at  finding  them  a 
hospitable  people,  and  withal  somewhat  civilised. 
The  population   of  the  city   of  New-York  were 
generally  an  enlightened  and  enterprising  popu- 
lation ;  but  there  were   among  them  those  who 
considered  the  city  all  the  world — who  had  hard- 
ly  dreamed  of  unexplored   regions  beyond  the 
highlands.     To  such  gentlemen,   he   thought  it 
might  be  of  benefit  to  extend   their   travels,  and 
he  could  inform  them  that  some  of  the  ablest  law- 
yers among  them,  were  from  this  very  county  of 
Delaware,  which  had  been  singled  out  as  the  ex- 
tremest  example,   on  which  to  enforce  the  argu- 
ment on  the  other  side.    Many  of  the  present  jud- 
ges of  the  city,  were  lawyers  educated  and  train- 
ed in  the   country,  and  although  there  were  cer- 
tain branches  of  commercial  law  with  which  city 
lawyers  were  more  familiarized  than  those  from 
the  country  ;  yet  the  manner  in  which  those  jud- 
ges had  discharged  their  duty,  served  to  show  how 


709 


readily  an  able  and  enlightened  mind  could  acco- 
modate  itselt  to  any  exigency  There  was  yet 
another  and  the  last  objection  which  he  had  not 
answered.  It  had  been  originally  stated  by  the 
gentleman  from  Genesee,  Mr.  (TAGGART,)  and 
backed  up  by  the  gentleman  from  New- York, 
(Mr.  O'CowoR.)  It  was  founded  on  the  hypo- 
thesis, that  learned  counsel  might  under  the  eight 
district  system  have  several  causes  standing  rea- 
dy for  argument  in  the  several  district  courts  all 
noticed  for  argument  at  the  same  time.  What 
should  be  done  ?  He,  (Mr.  J.)  had  on  a  former 
occasion  suggested  the  remedy  which  he  could 
here  repeat;  let  the  learned  gentlemen  select  the 
most  important  of  his  several  cases,  that  which 
most  required  and  best  deserved  the  energies  of 
his  own  mind,  and  hand  over  his  other  briefs  to 
other  counsel.  Although  his  clients  might  be 
subjected  to  some  inconvenience  and  peril,  yet 
those  he  submitted  were  such  as  could  not  under 
any  system  be  avoided.  The  same  learned  gen- 
tleman was  now  and  had  always  been  liable  to 
the  same  embarrassment.  We  had  now  eight 
circuit  judges,  all  of  whom  might  be  engaged  in 
holding  a  circuit  at  the  same  time  in  each  of 
which  the  same  counsel  might  have  a  client  to 
defend.  [Mr.  CTCoivoR  explained  that  he  alluded 
to  bar  motions,  and  a  variety  of  business  of  that 
description,  and  not  the  trial  of  cases  at  nisi 
prius.] 

Mr.  J.  thought  it  made  no  difference.  He  had 
only  endeavored  to  show  that  there  were  incon- 
veniences which  could  not  be  obviated  under  any 
system.  It  was  of  quite  as  much  importance,  in 
his  judgment,  to  the  suitor,  to  have  his  chosen 
counsel  to  try  uis  cause  at  the  circuit,  as  to  argue 
it  at  bar.  Thtw,  said  Mr.  J.,  I  have  endeavored, 
in  a  plain  way,  to  show  what  our  judiciary  will 
be,  if  organized  upon  the  plan  contained  in  the 
majority  report.  How  it  would  be  organized — 
how  operate — how  answer  public  expectation  ; 
and,  moreover,  how  their  internal  arrangements 
could  be  made.  How  this  "  band  of  vagrants," 
these  "  vagabondizing,  itinerant  pedlars  of  the 
law,"  this  "  analogy  to  a  circulating  paper  me- 
dium," as  the  gentleman  from  New  York  (Mr. 
O'C.)  has,  in  the  indulgence  of  his  wit  and  mer- 
riment, so  facetiously  called  them,  could  perform 
these  duties.  Acknowledging  my  profound  grat- 
itude for  the  patient  attention  with  which  the 
delegates  have  heard  me,  I  cordially  unite  in  the 
invocation  of  my  respected  friend  from  Erie 
(Mr.  STOW),  that  our  work  may  be  blest  of  Heav- 
en ;  and  that  this  or  any  other  plan  which  the 
Convention  in  their  wisdom  shall  adopt,  may 
prove  satisfactory  to  our  constituents,  and  remain 
as  a  monument  of  their  wisdom,  while  the  earth 
endures. 

The  committee  then  rose,  and  the  Convention 
adjourned  to  9  o'clock  to-morrow  morning. 

THITRSDAY,  (Glth  day,}  August  20. 

Prayer  by  the  Rev.  Mr.  SELKIRK. 

The  PRESIDENT  laid  before  the  Convention 
a  communication  from  the  clerk  in  Chancery  foi 
the  5th  circuit  in  relation  to  infants'  estates,  in 
compliance  with  a  resolution  of  the  Convention 
Referred  to  the  select  committee  of  5,  to  prepare 
abstracts. 


COMMON  SCHOOLS. 

Mr.  TUTHILL  from  committee  No.  12  on  Ed- 
ication  and  Common  Schools,  made  a  minority 
eport  as  follows,  which  was  referred  to  the  corn- 
uittee  of  the  whole  having  Mr.  NICOLL'S  report 
n  charge  : 

§  1.  The  proceeds  of  lands  belonging  to  this  State,  except 
such  parts  thereof  as  may  be  reserved  or  appropriated  to 
mblic  use,  or  ceded  to  the  United  States,  which  shall 
leieatter  b«  sold  or  disposed  of,  together  with  all  the  funds 
^nominated  the  Liteiatu  e  Fund  and  Common  School 
^unil,  and  all  moneys  heretolore  appropriated  by  law  to 
he  use  of  the  said  fund,  and  which  may  be  hereafter  added 
hereto,  shall  be  and  remain  a  perpetual  fund,  the  interest 
ol  which  shall  be  inviolably  appropriated  and  applied  t« 
.he  support  of  common  schools  throughout  this  s  ate. 

§  2.  The  net  annual  income  and  proceeds  of  all  the.  mo- 
n..-ys  deposited  with  this  state  by  the  United   States  i.ursu-^ 
am  to  the  provisions  ot  the  act  of  Congress  of  the  United" 
States,  entitled   "  An  Act  to  regulate  ihe  d.  poshes  ol  the 
:>ublic  moneys,"  approved  June  23,  18H6,except  the  sum  of 
650,000,  shall  hereafter  be  inviolably  aunually   appropria- 
.ed  and  applied  to  the  purposes  of  comiron  school  educa- 
tion in  this  State,  and  the  aiores-aid  sum  ol  $50,OoO  shall  in. 
iaeh  year  hereafter  be  set  apart,  transferred  and  added  to 
the  capital  of  the  common  school  iund  ot  the  state. 

§3.  It  shall  be  the  duty  oithe  legislature  to  piovideby  law 
or  the  investment  and  security  of  all  moneys  at  eny  time 
aelonging  to  the  capital  of  the  common  school  Iund  paid 
'nto  the  treasury,  and  no  part  ol  such  fund  shall  at  any 
ime  be  appropriated  or  applied  •  o  defray  the  ordinary  or  ex- 
.raordina}  expt  nsesof  the  government, nor  shall  the  sam<  be 
.oaned  to  the  State,  except  upon  the  same  terms  and  condi- 
tions, mid  upon  the  like  guaranties  and  securities,  as  other 
moneys  are  loaned  by  ihe  state,  and  not  exceeding  one-thiid 
"n  amount  ot  the  capital  of  the  said  funds  shall  nt  any  one 
ime  be  invested  in  securities  issued  or  to  be  issued  upon 
:he  faith  and  credit  ot  this  state,  nor  shall  such  monev  s  be 
Loaned  to  any  literary  institution,  association  or  corpora- 
tion, or  to  any  town  or  village  corporation. 

Mr.  WILLARD,  from  the  same  committee, 
made  the  following  minority  report,  which  re- 
ceived the  same  reference  : 

1.  The  proceeds  of  all  lands  belonging  to  this  state, 
except  such  parts  thereof  as  may  be  reserved  or  appropri- 
ated to  public  use,  or  ceded  to  the  United  States,  which 
shall  hereafter  be  sold  or  disposed  of,  together  with  the 
fund  denominated  the  common  school  fund, and  all  moneys 
heretofore  appropriated  by  law  to  the  use  of  said  fund  and 
which  may  be  hereafter  added  thereto,  shall  be  and  remain, 
a  perpetual  fund,  the  interest  of  which  shall  be  inviolably 
appropriated  and  applied  to  the  support  of  common  schools 
throughout  this  state. 

§  2  It  shall  be  the  duty  of  the  legislature  to  provide  by 
law  lor  the  investment  and  securitv  oi  alt  moneys  at  any 
time  belonging  to  the  capital  of  the  common  school  aiui  lit- 
erature funds  paid  into  the  treasury,  and  no  part  of  such 
funds  shall  at  any  time  be  appropriated  or  applied  to  de- 
fray  the  ordinary  or  extraordinary  expenses  of  the  govern- 
ment, nor  shall  the  same  be  loaned  to  the  state  except  up- 
on the  same  terms  and  conditions  and  upon  the  like  guar- 
an!ies  and  secur.tics,  as  other  monies  are  loaned  by  the 
state;  and  not  exceeding  one-third  in  amount  oi  the  c^pitol 
oithe  said  fund  shall  at  any  one  time  be  invested  in  secu- 
rities issued  or  to  be  issued. upon  the  faith  and  credit  ol  this 
state,  nor  shall  such  money  be  loaned  to  any  literal  y  in- 
stitution, association  or  corporation,  or  to  any  town  or  vil- 
lage corporation. 

§3.  1  he  nett  annual  income  and  proceeds  of  all  the  mo- 
neys deposited  with  this  state  by  the  United  States,  pursu- 
ant to  the  provisions  of  the  act  of  Congiess  of  the  United 
States,  entitled  •«  An  act  to  regulate  the  de|  osites  of  the 
public  moneys. "approved  June  23,  1836  except  the  sum 
of  $50,000,  shall  hereafter  be  inviolably  annually  appropri- 
ated and  applied  to  the  purposes  of  common  school  educa 
tion  in  this  state,  and  the  afurtsaid  sum  of  $50  000*  shall  in 
each  year  hereafter  be  set  apart,  transierred  and  added  to 
the  capital  of  the  common  school  fund  of  this  state. 

The  Convention  then,  on  motion  of  Mr.  MANN, 
resolved  itself  into  a  committee  of  the  whole  on 
the  reports  on 

THE  JUDICIARY. 

Mr.  CAMBRELENG  resumed  the  chair. 


710 


Mr.  TALLMADGE  then  addressed  the  com- 
mittee at  some  length.  In  reference  to  the  bill 
S  rod  need  a  day  or  two  since  by  the  gentleman 
•om  Chautauque  (Mr.  PATTERSON)  showing  how 
a  county  judge  had  charged  #78  for  one  day's  ser- 
vice, and  upwards  of  $,'140  for  two  or  three  days 
service,  he  said  all  this  was  legal.  He  had  risen 
to  say  this  to  the  Convention,  that  he  might  show 
the  necessity  for  more  discreet  legislation.  He 
spoke  of  these  charges  as  legal,  and  by  that  lie 
meant  that  they  were  charges  lawfully  made  ac- 
cording to  existing  laws,  and  there  were  many 
more  that  were  worse  cases  than  this  which  had 
been  presented  by  the  gentleman  from  Chautau- 
que. Why,  so  late  as  the  year  1845,  an  act  was 
passed  by  the  legislature  of  this  state,  entitled  an 
act  to  reduce  the  number  of  town  officers  and  to 
facilitate  the  auditing  of  their  accounts,  which 
had  a  21st  section,  that  takes  from  the  prosecut- 
ing officer  a  discretion  hitherto  held,  and  makes 
it  mandatory  that  whenever  criminal  cases  are 
put  off  by  either  party,  the  public  prosecutor  shall 
recognize  all  the  witnesses  to  appear  at  the  en- 
suing court,  by  which  there  was  at  once  a  Pan- 
dora's box  opened  for  the  commission  of  wrong, 
amongst  which  might  be  the  imprisonment  of  wit- 
nesses that  could  not  give  security.  He  alluded 
to  this  in  charity  to  the  legislature,  which  passed 
such  a  law  with  such  a  title,  but  he  thought  it 
afforded  evidence  that  that  legislature  was  busy 
with  something  else  than  thinking.  After  some 
other  observations  on  rhis  subject,  he  referred  to 
the  discussion  which  had  taken  place  on  the  judi- 
ciary article  now  before  the  committee,  and  com- 
mended it  for  the  talent  and  spirit  and  assiduity  by 
which  it  had  been  characterized.  He  expressed 
his  regret  that  Mr.  SHAW  should  .have  felt  it,  ne- 
cessary to  offer  his  resolution  to  limit  this  debate, 
and  gave  his  views  as  to  the  number  of  committees 
which  should  have  been  originally  appointed,  and 
the  course  which  the  Convention  should  have  a.- 
dopted  in  the  outset.  His  judgment  was  that  there 
should  have  been  but  three  committees,  the  judi- 
ciar> ,  the  executive,  and  (he  financial.  The  Con- 
vention, in  its  wisdom,  had  spent  six  weeks  in 
the  reception  and  discu&siofi  of  resolutions,  not 
one  ot  which  would  ever  be  brought  to  maturity  ; 
and  this  he  disapproved,  lie  however  expressed 
his  gratification  wuh  this  debate,  from  which  he 
had  derived  much  iiii<.nnation  He  tUen  pro- 
ceeded to  an  examination  ot  the  justices  courts 
which  he  said  he  desired  to  maintain.  They 
were  necessary  fur  the  convenience  of  the  towns 
that  were  distant  from  the  county  seats.  He  de- 
fended at  some  length  the  county  courts  in  v\hich 
in  his  younger  days  lie  had  practiced  ;  and  he  ex- 
pressed his  desire  that  they  should  not  only  be 
preserved,  bul  improved  and  elevaied.  He  also 
gave  his  views  respecting  the  supreme  court,  the 
court  of  errors,  and  the  court  ol  chanctry.  The 
latter  court  he  would  root  out  entirely,  as  a  firm- 
er would  a  Canada  thistle.  In  an  allusion  to  the 
f  uu!s,'an  amount  of  which  had  been  called  for  by 
Mr.  MANX'S  resolution,* he'said  'hat  instead  of 
three  millions,  he  believed  the  amount  in  chance- 
ry was  nearer  nine  -an- 1  even  twelve  millions.  He 
did  not  believe,  however,  tuat  I  hey  should  be  able 
to  get  the  returns  of  n  from  the  officers.  If  this 
Convention  did  nothing  else  than  abolish  that 
court,  he  thought  they  would  deserve  well  of  the 


community.  He  examined  the  practice  both  in 
hw  and  equity,  and  condemned  the  pleadings,  as 
unnecessarily  complicated  and  expensive.  The 
court  of  appeals  he  desired  lo  have  an  indepen- 
dent court.  The  judges  of  the  court  of  appeals 
he  would  have  isolated  from  executive  influence, 
and  he  would  make  them  ineligible  to  any  office 
thereatter.  He  went  into  an  examination  of  the 
causes  of  litigation,  of  which  we  have  in  this 
state  with  a  population  of  three  millions  so  much 
more  than  in  England  with  a  population  of  seven- 
teen millions,  and  defended  our  people  against  the 
imputation  of  being  of  a  litigious  spirit.  It  was  an 
incident  of  onr  position.  In  England  property 
was  classified,  things  were  settled,  commercial 
dealings  were  running  in  established  channels,  and 
there  was  very  little  leason  to  jostle  with  each 
other;  and  he  believed  with  us  that  litigation 
would  be  progressively  diminishing. 

Mr.  LOOMIS  gave  his  views  in  relation  to  the 
county  courts.  Care  should  be  taken  in  propos- 
ing a  plan  for  such  court,  that  it  should  corres- 
pond with  the  plan  of  the  committee,  for  he  pre- 
sumed that  report  would  be  adopted,  as  he  cer- 
tainly desired  it  should  be.  He  considered  that 
the  judicial  force  provided  for  in  the  majority  re- 
port, and  the  organization  ^proposed,  would  be 
fully  adequate  to  all  the  exigencies  of  the  judicial 
business  of  the  State  and  to  do  all  the  duties  im- 
posed on  them.  But  still  he  considered  there 
could  be  no  question  but  that  a  county  court  was 
necessary  to  do  all  the  other  business,  especially 
those  local  matters  which  were  not  and  could  not 
be  devolved  on  the  Supreme  Court.  He  disliked 
this  idea  of  dividing  this  court — half  of  it  to  be 
called  by  one  name  and  half  by  another — half  of 
it  confined  to  one  kind  of  cases  and  half  to  an- 
other. The  same  kind  of  trial  should  be  held  by 
the  same  kind  ot  judges.  Every  man  who  had  a 
cause  to  be  tried  had  the  right  to  have  it  tried  in 
the  best  manner  that  it  was  capable  of  being 
tried.  Nor  could  he  conceive  the  necessity  of 
any  county  court  for  the  trial  of  issues  of  fact. — 
But  some  local  court,  exercising  judicial  func- 
tions, was  necessary  for  other  and  local  purposes. 
He  repelled  the  idea  that  this  court  would  be  a 
small  court— a  little  nondescript  thing.  He  ask- 
ed if  that  could  be  called  a  petty  system  which 
contemplated  local  courts  for  the  correction  of 
the  errors  of  four  thousand  justices  of  the  peace, 
and  dispensing:  with  the  enormous  expenses  of 
the  present  wretched  and  vexatious  system  of  ap- 
peals and  certioraris.  He  denied  that,  so  far  as 
he  was  concerned,  the  county  court  systems  pro- 
posed here  were  extorted  from  those  who  were 
supposed  to  be  the  enemies  of  county  courts, 
to  save  the  plan  of  the  judiciary  committee  from 
apprehended  defeat.  His  plan  for  a  county  court 
was  proposed  simultaneously  with  the  judiciary 
rep0rt and  when  no  such  motive  could  have  ex- 
isted. As  to  what  should  be  the  jurisdiction  of 
the  county  court  as  proposed  by  him,  Mr.  L. 
enumerated  some  twenty-four  subjects  which 
should  be  vested  in  local  officers,  and  which 
could  not  be  vested  in  the  Supreme  Court ;  and 
beside/s  these  he  specified  the  local  powers 
which  he  would  vest  in  his  county  court  In 
conclusion,  Mr.  L.  said  that  his  plan  only  con- 
templated carrying  out  in  the  counties  what  the 
judiciary  committee  proposed  to  carry  out  in  the 


711 


State— a  local  officer  trying  causes  in  every  term, 
ihe  Supreme    Court  judges  were 
.  erse  the  counties. 

hunt  concluding,  Mr.  L.  yielded  the  floor, 
and  the  committee  rose  .;';<[  iv|-.o.-t''d. 

HARRIS  asked  consent  to  oiler  the  follow- 
ing resolution  : 

Resolved,  That  the  clerk  of  the  Court  for  the  Correction 
of  Krrors  be  rrqui>-ted  to  furnish  tl.is  Convention  with  a 
statement  sliowin---  ^  oi'  the  recent  session  of 

the  court  held  at  the  city  of  LSun'alo,  specifying  therein  the 
amount  paid  to  the  members  of  said"  court  for  travel  and 
per  cliem  allowance— and  also  stating  the  number  of  causes 
heard  at  said  term. 

Mr.  LOOMIS  objected,  and  it  could  not  be  re- 
ceived at  this  time. 

The  Convention  then  adjourned. 


AFTEIINOON  SESSION. 

Mr.  LOOMIS  having  the  floor,  resumed.  He 
objected  to  Mr.  CROOKER'S  plan  of  a  county 
court  because  it  contemplated  but  one  judge  in  a 
county.  The  number  should  be  left  to  the  leg- 
islature. Or  we  might  say  one  at  least  for  every 
county  and  additional  ones  for  every  member  of 
assembly.  He  concurred,  however,  in  giving  the 
duties  of  surrogates  to  this  court.  And  when 
there  was  more  than  one  of  them  in  a  county, 
they  might  be  authorized  to  hold  a  court  to  de- 
cide the  questions  of  law.  Nor  could  he  see  any 
objection  to  authorizing  this  officer  to  set  aside 
judgments  taken  by  default  in  justices  courts. — 
They  could  also  do  the  duties  of  the  supreme 
court  commissioner.  The  class  of  petty  offences 
with  which  we  would  charge  this  court  was  tnat 
class  now  tried  at  special  sessions.  Perhaps 
there  might  bt.  added  to  these,  cases  now  tried 
before  three  justices  of  the  peace.  But  all  this 
was  matter  of  legislation,  and  there  he  proposed 
to  leave  it.  Mr.  L.  went  on  to  explain  his  sys- 
tem of  county  courts — saying  that  all  perhaps 
agreed  in  having  some  local  court,  though  they 
might  differ  as  to  what  kind  of  a  court  it  should 
be.  The  amendment,  under  these  circumstances, 
establishing  a  county  court,  would  settle  nothing. 

Mr.  RlCHMONDsaid  that  he  had  hoped,  at  the 
commencement  ol  tiie  discussion  upon  tins  ques- 
tion ot  the  judiciary,  that  the  committee  w<.uld 
have  commenced  with  the  justice'  eouris,  and  lirst 
settled  their  poweis  and  duties;  and  next  u.ecuurt 
of  common  pleas,  it  we  \\ere  to  have  one — and  so 
on,  lo  ,he  .sup r<- me  conn  and  court  ot  Appeals  — 
But  he  had  been  overruled  in  this,  and  the  dis- 
cussion had  la  ken  a  wide  r-mge,  embracing  all 
matiers  connected  with  our  present  judicial  sys- 
tem, and  also  the  plan  proposed  by  the  majority  of 
the  judiciary  committee,  and  some  six  or  eight 
other  plans,  submitted  and  laid  upon  our  tables, 
together  with  the  suggest  ions  of  the  several  mem- 
bers who  had  atidiessed  the  commi'tee,  as  ;o  si^ne 
amendments  winch  they  thought  should  be  adopt- 
ed, provided  any  one  of  the  plans  which  had  been 
presented  should  be  adopted,  in  whole  or  in  part. 
Such  being  the  present  condrion  ot  this  most  irn- 
portant  and  interesting  dif-cussion,  he  hoped  the 
committee  would  pardon  him  if  in  the  tew  remarks 
he  WHS  ;.b  >ut  io  submit  he  should  follow  some  ot 
the  many  geutleinen  who  had  spoken  on  the 
lion,  without  any  particular  reference  to  the  order 
in  which  they  spoke,  or  to  the  particular  branches 
of  the  several  reports  As  he  had  but  lew  notes 


of  what  had  been  said,  he  would  lirst  speak  on 
those  branches  now  more  immediately  m  his  mind, 
lest  he  might  neglect  to  ivfer  afterwards  to  some 
of  them  which  he  deemed  important.  And  firstly 
he  would  say,  that  in  likening  to  the  able  speech- 
es of  gentlemen  on  this  subject,  they  had  called 
the  attention  of  the  committee  mainly  to  the  de- 
lays and«hindiances  of  our  present  system  of  ad- 
ministering justice,  u  bile  the  giv.it  and  crying- 
evil  of  the  costs  and  expenses  ot  our  courts,  grow- 
ing out  of  the  tact  that  a  large  proportion  of  the 
time  of  most  of  our  courts  is  employed  in  revers- 
ing, non-suiting,  delaying,  arid  thwarting  each 
otbei's  decisions. 

He  said  it  had  been  well  remarked  here,  by  more 
than  one  gentleman,  that  one  of  the  great  objects 
the  people  had  in  the  calling  and  assembling  of 
this  Convention,  was  the  subject  ol  judicial  re- 
form. In  this  he  said  he  fully  concurred;  but  he 
begged  to  say  to  those  gentlemen,  that  the  people 
would  not  be  satisfied  with  anv  system,  however 
new  it  might  be,  the  machinery  of  which  was  to 
be  carried  on  by  means  of  all  the  technical,  wordy, 
nonsensical,  unmeaning  pleadings  now  in  favor 
in  our  courts,  and  so  well  adhered  to  by  both  courts 
and  lawyers.  Neither  would  they,  in  his  judg- 
ment, longer  submit  to  the  interminable  and  ruin, 
ous  expenses  forced  upon  them  by  the  almost  innu- 
merable number  of  appeals,  certioraris,  demur- 
rers, and  other  legal  inventions,  well  calculated 
to  strip  the  laborious  farmer  or  mechanic  of  the 
hard  earnings  of  his  labor,  to  fill  the  pockets  of 
the  lawyers,  judges  and  clerks  of  the  difierent 
courts.  Mr.  R  said  that  he  had,  some  days 
since,  stated  to  the  comrmtee  his  views  with 
reference  to  the  Court  of  Chancery,  and  he 
would  not  now  repeat  them,  as  he  believed 
from  what  had  already  taken  place  in  this  com- 
mittee that  that  court  which  had  so  long  afford- 
ed such  rich  pickings  for  solicitors,  masters,  ex- 
aminers, clerks,»trustees&c.  was  destined  to  a 
speedy  and  certain  death,  without  any  hope  of  a 
resurection.  Should  this  be  the  case,  (which 
God  grant  may  be  so)  he  would  be  disposed  to 
tread  lightly  upon  its  grave,  and  pass  on  to  the 
living.  And  now,  Mr.  Chairman,  said  Mr.  R.  lest 
he  might  be  misunderstood  in  what  he  had,  or 
might  say,  in  regard  to  attorneys  and  bills  of  costs, 
would  take  the  present  occasion  to  say,  that  he 
had  no  personal  hostility  to  the  profession,  many 
of  them  were  his  most  intimate  friends — but  gen- 
tlemen must  remember  that  the  interests  of  the 
profession  and  those  of  the  great  laboring  and 
producing  classes  in  this  country  are  somewhat 
different.  He  knew  that  the  honorable  and  high- 
minded  of  the  profession,  were  above  all  censure 
— and  among  that  number  he  was  happy  to  class 
the  legal  members  of  .this  Convention.  He  be- 
lieved they  had  come  here  with  the  determina- 
tion to  aid,  by  their  powerful  intellect,  in  fram- 
ing a  Constitution  that  shall  confer  blessings  up- 
on the  anxious  millions  of  this  great  State.  He 
said  he  knew  those  at  home,  who  are  possessed 
of  those  same  high  qualities,  and  have  a  high  re- 
putation for  honor  and  integrity.  But  when  he 
said  this  he  felt  bound  lo  say  that  there  was 
another  class  of  the  profession,  of  whom  the  peo- 
ple had  formed  a  very  different .  opinion.  He 
meant  those  who  live  by  the  imprudence  and 
misfortunes  of  their  fellows.  Those  who  are 


712 


ever  ready  by  their  advice  and  management,  to 
embroil  otherwise  peaceable  and  quiet  neighbors 
in  all  the  expenses,  ill  feelings,  quarrels  and  con- 
tentions growing  out  of  the  prolonged  and  ruinous 
suits  at  law  which  they  had  by  their  management 
succeeded  in  embroiling  the  parties  in.  The  ob- 
jects of  these  men  do  not  seem  to  be  to  enable 
their  clients  to  get  cheap  and  speedy  justice,  but 
to  so  manage  as  to  take  advantage  of  all  the  tech- 
nicalities and  crooks  of  the  law,  so  as  to  run  up  a 
large  bill  of  costs  tp  benefit  their  own  pockets. — 
To  this  particular  class,  he  said,  was  to  be  attri- 
buted the  greater  portion  of  the  opposition  to  a 
radical  reform  in  our  judiciary  system.  Mr.  R. 
said  he  believed  that  two  of  the  greatest  evils  of 
our  present  system  was  the  crooked  and  almost 
useless  forms  of  pleading  now  in  full  practice 
in  our  courts,  compelling  the  party  to  state 
almost  every  thing  known  in  our  language 
but  the  truth,  and  the  facilities  which  were 
afforded  by  our  system  for  bringing  appeals, 
certioraris  and  motions,  to  be  argued  before 
the  higher  courts,  all  of  which  give  fine  fees 
to  attorneys,  and  after  involving  the  parties  in 
large  bills  of  costs,  generally  result  in  being 
sent  back  for  new  trial,  for  the  purpose,  as  is  al- 
ledged,  of  remedying  some  great  defect  in  the 
former  proceedings.  He  said  he  had  looked  over 
the  report  of  the  majority  on  this  subject,  and  he 
had  not  been  able  to  see  anything  there  to  pre- 
vent as  many  appeals  as  in  our  present  system. — 
Although  he  understood  from  some  of  the  com- 
mittee that  the  costs  of  these  courts  were  to  be 
very  much  cheapened  by  the  Legislature  to  come 
after  us,  whose  first  business  would  be  to  simply- 
fy  the  manner  of  pleadings  in  these  courts.  He 
confessed  gentlemen  had  more  confidence  in  the 
Legislature  than  he  had.  for  he  well  recollected 
the  people  had  been  asking  the  Legislature  for 
the  last  eight  years  to  do  this  very  thing,  and  be- 
cause they  had  not  done  it,  they  -had  called  this 
convention,  expecting  that  something  would  be 
done  here  in  accordance  with  their  demands. — 
Mr.  R.  hoped  they  would  not  be  disappointed, 
but  that  all  their  expectations  for  cheap  and  ex- 
act justice  would  be  realized.  He  believed  the 
jurisdiction  in  justices  courts  should  be  increased 
to  $250,  that  such  courts  should  have  equity  and 
law  powers,  that  for  all  judgments  rendered  in 
such  courts  of  100  dollars  and  under,  the  party 
dissatisfied  should  appeal  to  the  town  court  of  the 
same  town  or  of  some  adjoining  town.  Town 
courts  to  be  composed  of  all  the  justices  in  town, 
and  to  meet  four  times  in  each  year.  Either  par- 
ty to  have  the  right  to  call  a  jury  on  the  trial  of 
the  appeal  cause,  but  if  neither  party  de- 
sire a*  jury,  then  the  justices  to  decide  the 
cause;  the  decision  of  the  town  court  to  be  final, 
from  which  there  shall  be  no  appeal.  The  jury 
for  such  courts  to  be  drawn  from  the  list  of  coun- 
ty jurors  from  such  town,  which  said  list  is  now 
by  law  filed  in  the  Town  Clerk's  office.  He  said 
there  were  now  fewer  appeals  from  the  Justices 
courts  in  proportion  to  the  number  of  causes  tried 
by  them,  than  there  were  from  any  other  court, 
not  excepting  even  the  circuit  courts  or  the  deci- 
sions of  the  supreme  .  court.  These  town  courts 
making  final  decisions  in  all  matters  of  $100  and 
under,  will  very  much  relieve  the  higher  courts 
from  a  considerable  amount  of  business  that  now 


finds  its  way  there,  and  the  giving  these  courts  of 
Justices  of  the  Peace  jurisdiction  in  the  sum  of 
$250,  will  also  do  very  much  to  accomplish  the 
same  object.  The  effect  of  these  contemplated 
changes  will  be  to  elevate  the  character  and 
standing  of  the  justices  courts.  The  people  will 
know  when  they  elect  their  justices  that  they  are 
to  make  important  decisions,  and  they  wrill  be 
likely  to  see  to  it  and  get  good  men  It  is  a  libel 
upon  the  intelligence  of  the  people  in  the  seve- 
ral towns  in  this  State  to  suppose  that 'they  will 
not  elect  men  for  justices  when  three  of  them  as- 
sociated together  shall  not  be  qualified  to  decide 
finally  a  matter  of  $100  or  under.  He  asked  if 
there  was  a  man  in  this  Convention  that  did  not 
believe  these  justices  were  more  capable  of  deci- 
ding matters  of  deal  between  farmers  and  mecha- 
nics, than  ai.y  of  your  Supreme  judges  could  be. 
They  were  more  conversant  with  such  matters  as 
they  were  generally  in  their  line  of  business. — 
They  would  see  and  hear  the  witnesses  testify, 
would  know  what  kind  of  confidence  to  place  in 
them,  whereas  if  the  cause  was  allowed  to  go  up 
to  the  higher  courts  it  would  be  decided  on  paper 
siatements,  and  sometimes  by  men  who  were  en- 
tirely unacquainted  with  such  matters  of  trade 
and  traffic  as  this  kind  of  litigants  dealt  in.  He  said 
this  system  would  be  cheap  to  parties  and  cheap 
to  the  public,  for  he  believed  usually  these  courts 
would  not  be  in  session  more  than  one  day  at 
a  term,  and  it  would  not  be  necessary  to  pay  them 
more  than  $1,50  or  $2  each,  per  day,  for  their 
services.  The  expense  of  final  decisions  in  this 
way  was  not  to  be  compared  with  the  expense 
under  our  present  system.  He  cited  one  case  of 
appeal  from  the  judgment  of  a  justice  (in  an  ad- 
joining town  to  the  one  in  which  he  Mr.  R.resided) 
which  occupied  the  greater  part  of  two  terms  of 
the  court  of  Common  Pleas  in  Genesee  county.  In 
both  trials  the  jury  could  not  agree  and  it  was  yet 
undecided — althougn  the  first  judge  of  that  coun- 
ty said  it  had  already  cost  the  county  and  the 
parties  one  thousand  dollars,  yet  the  matter  in 
dispute  which  was  appealed  from  was  only  about 
thirty  dollars. 

I  tie  gentle inan-froin  Chuutauque  (Mr.  MARVIN) 
had  vindicated  the  character  of  these  courts,  when 
he  said  ihere  WHS  m>i  one  cause  in  five  hundred 
decided  in  the  justices  couris  of  his  county,  that 
were  ever  appealed  from.  Tne  gentleman  from 
Herkimer  (Mr  LOOMIS)  tells  us  that  this  Conven- 
tion is  not  the  place  to  cany  out  details  by  fixing 
the  matter  of  appeals,  and  s^ys  we  can  here  only 
set  up  the  skeleton  or  frame  work  and  leave  the 
Legislature  to  carry  nut  the  details.  Mr  R.  said 
should  that  gentleman's  suggestions  be  carried  out, 
and  this  whole  mauler  turned  over  to  the  .Legis- 
lature, he  apprehended  it  would  be  alter  this 
lime  when  the  People  would  realize  the  reforms 
they  have  so  long  demanded, and  he  begged  the  Con- 
vention to  consider  well,  before  the)-  should  adopt 
so  extiaordinaiy  a  course.  The  gentleman  from 
Fioga,  (Mr.  J.  J.  TAYLOR)  who  addiessea  the 
cornmutee  a  few  days  siuce,  adverted  to  justices 
couris,  and  stated  a  case  in  his  county  of  two 
neighbors  lawihg  in  those  courts  about  two  calves 
as  to  •whom  they  belonged.  Jury  alter  jury  was 
Called,  but  they  continued  to  disagree.  He  said 
he  hud  it  from  the  magistraie  that  it  cost  them 
nearly  300  dollars,  and  the  neighbors  finally  had 


713 


to  set  lie  the  matter  themselves.     Mr.  R.  said  he 
had  no  doubt  such  had  oeen  the  fact  as  stated    In 
•iiiieinip..     lint  he  would  call  the  attention 
il  "en  .'email  lo  a  rase    that    happened   scrne 
since  in  the  county  of  Steuhen,  not   far 
from  ih.it  gentleman's  own  county.     Two  men  gut 
.JrU'>  i  iiMtier  in  dispute  was  only  twelve 

shillings  a'te<  t:otng  through  -a  justice's  court,  it 
was  earned  through  all  the  superior  courts,  and 
c-on'e-ited  in  each  brant  h  with  all  the  skill  and  in. 
genuitv  that  able  counsel  could  bring  to  bear,  and 
was  finally  decided  in  the  court  of  filial  resort,  at 
an  expense  of  more  than  $1400  cost,  and  justice 
\vas  so  complete  and  satislactory  in  the  matter, 

to 

.</,<  t  nd  of  this  bill  of  cos',x  to  run    a<vay,    which 
•  iid,  the  one  to  Ohio,  and  the  other  to  Michi- 
{Tin.     Now,   sir,    allowing    these   to  he   extreme 


I  liar  both  parties  found  it  necessary  (in    order 


certainly  be  no  reasonable  objection,  if  we  were 
to  have  a  county  court  at  all,  that  we  should  have 
a  good  one.  And  he  believed,  unless  a  better 
plan  was  presented,  that  we  should  make  the  first 
judge  a  salaried  officer,  have  him  do  the  duties  of 
Surrogate  and  pay  all  fees  into  the  county  trea- 
sury. This  he  believed  would  enable  him  to  de- 
vote his  time  to  the  business,  as  h«  would  he  well 
paid,  and  would  have  plenty  of  business  to  do>— 
He  would  have  two  side  judges  elected  to  sit  du- 
ring the  trial  of  causes,  to  be  paid  by  the  day  for 
their  services.  With  such  a  court  as  this,  he 
said  we  would  he  enabled  to  dispense  with  one 
half  of  the  army  of  supreme  judges  provided  for 
in  the  report  of  the  committee.  The  3G  supreme 
or  district  judges,  provided  for  in  that  report, 


with  salaries  (as  was  said  by  some)  of  $3000 
each,  would  not,  he  believed,  take  well 
with  the  people.  They  were  not  prepared  for 
such  an  avalanche  of  judicial  wisdom.  He 
said  he  would  now  notice  a  remark  that  fell 
the  other  day  from  the  gentleman  from  Ontario 
(Mr.  WORDED,)  a  gentleman  for  whom  he,  Mr. 
R.,  had  the  highest  respect — he  had  had  the  hon- 
or of  a  seat  on  this  floor  with  that  gentleman  in  a 
different  body,  and  had  always  found  him  a  faith- 
ful and  able  representative.  That  gentleman 
stated  that  the  gentleman  from  Genesee,  alluding 
to  him,  Mr.  R.,  has  given  us  a  tirade  against 


equity 
doubte 


proceedings 
d  whether  h 


and  yet   he   (Mr.  WOKDEN) 
had  ever  read  a  sinle  work 


ca-es,  still  they  are  not  uncommon.     The  genile- 

siiin    from    Tioj:a    will    discover     that    the   costs 

<>t  what  may  he  justly  called   hard    lawing,   is   at 

all    times  as  five  to   one    in    favor    of  the    higher 

courts.    In  the  two  cases  cited,  his  among  the  jus- 

tices and  the  one  mentioned  by  him,  Mr.  K.,  there 

is  a  difference  of  about  ijj>'ilU(J  in  favor   ot  having 

fhe    matter    kept  in  and  decided  in    the  justice's 

court.     And  he  believed  this  rule  would  he  found 

?o  hold  yo  »d  in  most  ca<es.     The  gentleman  from 

New   Yurie,    {Mr.  O'CONOR  )     some  days   since 

darned    a  case  that  was  tumbled    about    fiom   one 

rourt  to  another  in   the    shape  of  exceptions,    de- 

murrers and  a  greaf  many  other  legal  quibbles,  un- 

til   after    sevetal    yeais   of  delay,    it    was    finally 

sent  back  where  it  started  from  to  be  tried  anew, 

at   an     expense    of   some    $1500.        The    gen- 

tleman from    Columbia,  (Mr.  JORDAN)  said  that 

under  such  a  system  as  the  one  now  before  the 

committee  the  whole  expense  of  such  a  case    as 

the  one  mentioned  would  not  cost  over  one  hun- 

dred dollars.     He  (Mr.  R.)  could  not  see  how  this 

was  to  be  done,  as  he  found  as  many  places  of  ap- 

peal in  this    plan  as    there    were  in  our    present 

system.       Perhaps   the    lawyers   were    to  work 

cheaper  than  they  have  heretofore    done.       This 

he  said  he  should  believe,  when  he  saw  it  put  in 

practice,  and  not  till  then.     He  had  never  known 

them  to  work  a  great  length  of  time  for  nothing 

and  find  themselves.       Like  other  men  they  will 

demand  pay  for   their  services.       He  said   that 

should  he  ever  become  embroiled   in   a  suit  that 

bid  fair  to  go  through    all  the  courts,  he    should 

certainly  employ    that  gentleman,  for  he  had  all 

the  ability    that  could    be    required,  and  would 

work  at  that  rate  for  less  than    two  dollars  a  day 

and  find  his  own  roast  beef.     Mr.  R.  took  up  and 

examined  the  plan  of  Mr.  CROCKER,  for  a  county  I  dirks,  swords,  pistols,  cutlasses,  bludgeons,  blun- 

court,  as   he  said   it  seemed    to    find  favor  with  j  derbusses  and  boarding  pikes,  then  and  there  held 

many.     His  objections  to  it,  were  that  it  had  all  j  in    the  hands,  lists  and  clutches  of  him  the  said 

rapharnalia  of  a  court   of  judges,   sheriffs,    Thomas.     Now,   Mr.  Chairman,    said  Mr.  Rich- 

iles,  jurors,  clerks,  criers,  &c  ,  but  had  no  ;  mond,  if  that  gentleman's  equity  reading  teaches 

jurisdiction  in  civil  causes.     It  was  designed  only  j  nothing  but   such  rigmarole   as  this,  he,  Mr.  R., 

.;•  matters  coming  up  from  justices  courts  and    had   reason  to   thank  those  who    had  the  care  of 
to  try  all  criminal  causes  arising    in    the   county  j  his    early  education,  tor  having  so  carefully  kept 


on  proceedings  in  law  and  equity.  Now  he,  Mr. 
R.,  would  only  say  in  reply  to  this  that  he  had 
always  been  taught  to  read  such  works  as  would 
be  beneficial  to  himself  and  to  his  fellow  men, 
and  his  reading  had  always  taught  him  when  he 
made  a  statement  to  make  it  in  a  plain  and  unvar- 
nished manner,  whether  written  or  oral.  But  he 
feared  this  was  not  the  case  with  the  reading  of 
the  writing  of  his  friend  from  Ontario.  That 
gentleman  in  his  business  as  a  lawyer,  if  he  were 
going  to  tell  you  the  story,  Mr.  Chairman,  of 
Tom's  striking  Dick  over  the  shoulders  with  a 
rattan  as  big  as  your  little  finger,  would  tell  it 
something  in  this  '/vay  :  And  ""that  whereas  the 
said  Thomas,  at  the  said  Providence,  in  the  year 
and  day  aforesaid,  in  and  upon  the  body  of  the  said 
Richard,  in  the  peace  of  God  and  the  state  then 
and  there  being,  did  make  a  most  violent  assault 
and  inflicted  a  great  many  and  divers  blows,  kicks, 
cuffs,  thumps,  bumps,  contusions,  gashes,  hurts, 
wounds,  damages  and  injuries,  in  aad  upon  the 
neck,  breast,  stomach,  hips,  knees,  slims  and 
heels  of  him  the  said  Richard  with  divers  sticks, 
canes,  poles,  clubs,  logs  of  wood,  stones,  daggers, 


v\  here  the  penalty  for  the  offence  shall  not  ex- 
ceed the  term  of  ten  years  confinement  in  one  of 
the  Stales  Prisons.  Now,  he  thought,  that  a  court 
which  had  sufiicient  ability  and  discretion  to 
make  decisions  involving  the  liberty  of  citizens 
ougiit  to  be  competent  to  decide  matters  of  dol- 
ars  and  cents  between  individuals.  There  could 


from  his  view  all  works  so  well  calculated  to  mys- 
tify and  mislead  the  human  mind. 

The  gentleman  from  Chautauque,  (Mr.  PAT- 
TERSON,) the  other  day,  while  discussing  this  re- 
port, took  occasion  to  say,  that  he  (Mr.  R.)  had 
discovered  in  the  third  section  a  provision  which 
would  allow  the  Legislature  to  appoint  exami- 

64 


714 


ners  in  chancery.  And  said  he  did  not  believe 
the  same  discovery  could  have  been  made  by  any 
other  gentleman  in  the  convention.  Mr.  R.  said 
the  discussion  at  the  time  referred  to  was  on  the 
third  section,  and  he  would  i  ead  it,  and  the  con- 
vention could  see  for  themselves  how  the  matter 
stood  between  them.  He  read  as  follows  : 

§  3.  There  shall  be  a  Supreme  Court  having  the  same 
juris'Uction  in  law  and  equity,  which  the  Supreme  Court 
an  1  tin;  court  of  chancery  now  have,  subject  to  regulation 
by  law. 

Mr.  R.  said  if  there  was  a  legal  member  in  the 
convention  who  would  rise  in  his  place  and  say 
'there  was  anything  in  the  section  to  prevent  the 
Legislature  from  appointing  as  many  officers  as 
they  saw  fit,to  do  that  kind  of  business,  he  would 
sit  down. 

Mr.  PATTERSON  here  said  that  the  9th  sec- 
tion provided  distinctly  that  the  testimony  in 
equity  cases  should  be  taken  before  the  judge. 

Mr.  RICHMOND  resumed  by  saying  that  as  the 
question  at  the  time  was  on  the  third  section,  he 
had  no  intention  of  having  his  mind  drawn  from 
it  by  any  promise  of  something  that  was  to  be 
done  bye  and  bye,  in  some  other  shape.  He  was 
not  in  the  practice  of  putting  his  foot  into  a  trap 
knowingly,  at  all  events  not  without  knowing 
how  he  was  to  get  out  again  without  injury.  He 
said  the  gentleman  (Mr.  PATTERSON)  had  also 
said  in  his  published  speech  that  he  hoped  no 
other  bugbear  like  this  would  be  found  in  the  re- 
port of  the  judiciary  committee.  Mr.  R.  said  he 
thought  the  gentleman  (Mr.  P.)  had  the  other  day 
found  the  greatest  humbug  of  all,  in  the  shape  of  a 
miserly  county  judge,  which  was  of  so  alarming 
a  character,  as  to  bring  some  half  a  dozen  of  the 
committee  promptly  to  their  feet. 

Some  further  conversation  here  ensued  between 
Mr.  RICHMOND  and  Mr.  PATTERSON. 

Mr.  CirlAlFiELJU  moved  that  the  committee 
rise  and  repoil  Agreed. 

The  Convention  then  adjourned. 

FRIDAY,   ($Qth  day ,)  August  21. 

Prayer  by  the  Rev.  Mr.  ;SELK.IKK. 

Mr.  BAKER  called  for  the  consideration  of  his 
resolution,  directing  the  committee  ot  I  he  whole 
on  tne  leports  ot  the  judiciary  system,  to  report 
the  article  to  the  Convention  next  Monday,  at  G 
o'clock,  P.  M. 

Mr.  CHATFIELD  moved  to  insert  Wednesday, 
ins'ead  ol  Monday. 

Mr,  BUKK  thought  they  would  be  quite  ready 
by  Monday  next  to  go  to  work  and  vote  on  it.  The 
lunger  they  staid,  the  more  speeches  there  would 
be  made.  Many  gentlemen  hav^  made  thiee  or 
lour  long  speeches  on  this  subject  already,  and  ap- 
pear disposed  to  deliver  many  more  on  every  su.  - 
ject  or  section  ot  it.  The  committee  had  had 
these  repoiis  before  them,  and  under  considera 
lion  for  over  13  ciavs,  which  gives  one  day  to  each 
member  of  the  committee,  and  tnere  was  more 
than  one  member  ol  that  committee  who  had  oc- 
cupied a  day.  He  did  not  intend  to  debate  this, 
but  wished  ID  be  indulged  in  making  a  prediction 

although  he   was  nenher  a  prophet  nor  the  son 

of  a  prophet — ho  would  venture  to  predict  in  re- 
gard 10  some  things  which  the  plan  to  be  made 
would  contain.  It  was  quite  apparent,  that  what- 
ever  plan  might  be  adopted,  it  would  be  the  result 


of  concession  and  compiomise  ;  no  plan  could  te 
formed  which  would  suit  every  member  in  all  it- 
features.  Not  one  gentleman  out  of  the  128  would 
get  a  plan  to  suit  himself. 

He  believed  then,  to  return  to  his  prediction, 
that  oui  plan  would  contain  a  provision  aumoriz- 
ing  the  Legislature  to  establish  Couits  of  Concili- 
ation—  not  a  mandatory  provision,  but  one  giving 
the  Legislature  discretionary 'poweis,  by  which 
they  might  abolish  the  Courts  i!  found  not  to  work 
well.  Next,  he  thought  the  justices  of  the  peace 
would  be  retained.  Although  according  to  the 
opinions  of  some  gentlemen  tvho  have  spoken, 
they  are  rather  a  shabby  set  ot  fellows,  he  did  not 
think  the  people  could  get  along  without  them  — 
He  imagined  that  there  would  be  authority  .given 
for  the  election  of  from  one  to  four  in  each  town  ; 
and  he  would  like  to  have  their  capacities  some, 
what  extended,  so  that  they  should  have  cogni. 
zance  in  matters  of  money  to  tne  sum  of  j-p^SQ, 
with  exclusive  jurisdiction  in  $1UU,  and  original 
and  concurrent  jurisdiction  to  $230.  Then,  he 
predicted  the  establishment  ot  some  kind  ot  Coun- 
ty Courts.  It  might  be  the  "cormorant"  or  "bull 
Irog  system,"  as  proposed  by  the  yenilenran  lr<  m 
N«w  York,  (Mr.  O'CoNoR  )  He  d.d  not  know 
why  this  bull  Irog  system  would  not  answer  every 
purpose,  provided  it  w-as  given  vitality,  so  that  it 
could  make  it*  jumps  whenever  it  was  necessary. 
Al'er  these  courts  would  come  the  "  thirty-two 
vagabond  internal  law-pedlers,"  forming  that 
"  hydra  headed  monstei"  called  the  Supteme 
Coui  t.  Then  he  fancied  we  should  top  off'  with 
an  eight  square  Court  of  Appeals.  Such  a  judi- 
cial system,  which  he  piedicted  would  be  erected 
here,  he  believed  would  miswer  all  the  purposes 
of  justice  inthe  state.  He  had  formed  his  opin- 
ions, to  be  sure,  fiom  those  ot  gentlemen  who 
were  wiser  than  himself,  but  with  his  conclu. 
sions,  drawn  from  such  sources,  he  was  satisfied. 
He  hoped  then  that  by  next  Monday  the  C  nven- 
tion  would  be  prepared  to  take  up  the  labor  of 
settling  and  finishing  this  matter  by  direct  votes 
upon  the  vaiious  propositions. 

A  count  was  called,  and  it  resulted  thus: — Ayes 
24,  noes  39.  No  quorum  votiiig. 

Mr.  MURPHY  called  for  the  ayes  and  noes. 

Mr.  CHATFIELD  withdrew  his  amendment. 

Mr.  LOOM1S  moved  to  insert  "  as  soon  as 
Monday ;"  so  that  in  case  they  got  through  soon- 
er, they  might  then  rise,  (Laughter.) 

Mr.  NICOLL  :  No  likelihood  of  that. 

Mr.  BROWN  hoped  this  would  be  viewed  as 
an  invitation  to  the  committee  to  rise  on  Monday 
rather  than  as  a  coercion.  He  was  as  desirous  to 
expedite  the  business  as  any  one,  and  that  this 
article  should  be  accepted  as  soon  as  possible ; 
but  he  preferred  that  it  should  be  left  to  the  good 
sense  and  discretion  of  the  committee  when  they 
would  close  debate  upon  it.  He  could  not  omit 
to  express  his  gratification  at  the  good  spirit 
which  had  so  far  characterised  the  discussion  up- 
on this  subject.  It  had  been  conducted  with  the 
most  perfect  propriety,  and  he  believed  would  be 
of  great  benefit  to  the  members  of  the  Conven- 
tion. No  gentleman  would  go  away,  he  thought, 
without  allowing  that  he  was  compensated  for  the 
time  which  had  been  given  to  the  discussion  of 
this  subject.  And  if  after  Monday  night  any  gen- 
tleman desired  to  speak  at  large  upon  any  ques- 


715 


tion  before  the  committee,  he  should  be  sorry  if 
vote  of  his  (Mr,  B's.)  should  deprive  him  of 
an  opportunity.  He  hoped,  then,  that  the  reso- 
lution would  not  be  passed  as  a  mandate  upon  the 
committee. 

Mr.  T. \LLMADGE  said  it  was  notorious  that 
the  plain  English  of  the  resolution  was  this;  and 
it  might  bo'ivndered  by  saying  that  as  Saturday 
i  very  bad  day  upon  which  any  vote  could  be 
taken  upon  this  question,  and  Monday  not  being 
the  best  day  for  such  a  vote,  because  a  great  many 
members  were  always  away  on  that  day,  this  re- 
solution, if  it  was  laid  on  the  table,  by  giving  no- 
tice that  the  article  was  to  be  taken  out  of  com- 
mittee on  Monday  next,  would  be  a  .warn- 
ing to  absent  members  to  be  present,  and  we 
should  thus  %et  a  full  house  when  we  came  to 
vote.  As  all  these  purposes  might  be  obtained  by 
laying  the  resolution  upon  the  table,  he  moved 
that  disposition  of  it. 

Mr.  WHITE  called  for  the  ayes  and  noes  on 
Laying  this  on  the  table. 

They  wore  ordered. 

Mr.  MURPHY  desired  to  say  a  word  on  this 
subject,  and  Mr  TAL.L.MADGE  withdrew  his  mo- 
tion. 

Mr.  MURPHY  said  nothing  was  to  be  gained 
by  adopting  this  resolution,  by  taking  this  article 
out  of  committee  on  Monday,  unless  there  was  a 
further  provision  in  the  resolution  directing  that 
when  it  was  brought  into  Convention,  we  should 
proceed  to  vote  upon  the  several  propositions  and 
amendments;  otherwise  we  should  only  have  a 
continuation  of  the  discussion  in  Convention, 
which  could  ->niy  be  ended  by  a  resort  to  the  pre- 
vious question.  He  appealed  to  gentlemen  to 
bear  this  ii.  mind ;  unless  there  be  also  an  amend- 
ment making  it  compulsory  on  the  Convention  to 
go  on  and  vote  on  the  amendments  pending  when 
the  committee  shall  report.  If  this  or  such  an 
aim'ii'hiHT.t  is  not  adopted,  the  debate  will  be 
continued  in  Convention,  and  nothing  whatever 
will  bo  gained. 

Mr.  STRO.YG  :  The  only  way  to  get  through 
the  business  is  to  take  this  thing  out  of  commit- 
tee of  the  whole  at  once.  The  resolution  ought 
to  be  adopted.  At  any  rate  there  would  be  no- 
thing lost,  at  least,  by  taking  the  article  out  of 
committee,  inasmuch  as  the  debate  could  con- 
tinue, and  amendments  might  be  proposed,  all 
inc.  We  should  probably  have  the  discus- 
sion already  had,  over  again  in  convention,  the 
same  speeches  and  the  same  old  stories  on  all 
sorts  of  subjects,  and  the  sooner  it  was  taken  out 
of  committee,  the  sooner  we  should  begin  to  go 
mini  already  traversed,  and  the  soon- 
er we  should  get  this  repetition  completed.  We 
had  the  power,  however,  of  bringing  gentlemen 
to  a  vote,  whenever  the  discusssion  had  gone  far 
enough.  If  it  was  to  be  laid  on  the  table  simply 
as  a  "  polite  invitation"  to  this  committee  to  rise 
if  they  thought  proper,  why  it  would  be  sure  to 
be  disregarded.  He  wanted  to  take  this  out  of 
comi;  .'ondiiy,  so  that  lie  would  bring  the 

previous  question  to  bear  on  it,  and  so  get  a  vote 
on  it  at  some  time  or  other. 

The  resolution  was  adopted. 

The  Convention  then  went  into  committee  of 
he  whole  on  the 


JUDICIARY  KEPORTS. 

Mr.  CAMBRELENG  resumed  the  chair. 

Mr.  CHATFIELD  said,  when  I  took  my  seat  in 
this  hall,commissioned  by  the  freemen  of  the  coun- 
ty of  Otsego,  to  consider,  amend,  and  reform  the 
organic  law  of  the  state,  I  came  with  an  earnest 
desire  to  lop  off  the  excresences   of  the  past,  and 
to  infuse  into   the  new  instrument,  those  princi- 
ples of   liberty,  equality,   and   social  well  being, 
which  the  experience  of  a  quarter  of  a  century 
has  more  fully  revealed,  and  which  the  great  body 
of  the  people  hope  to  see  incorporated  into  the 
constitution  which  we  shall  frame.     After  a  labo- 
rious and  industrious  session  01  two  months  and  a 
half,  although  it  may  be  thought  by  many  of  the 
citizens  of  the  state   that  our  progress  has  been 
slow,  I  cannot  think  that   our  labor  has  been  en- 
tirely fruitless,  when  I  reflect  that  many  of  the 
most  valued  and  cherished  principles  of  the  peo- 
ple have  been  already  adopted  by  this  body,  giving 
an  earnest  that  we  shall  not  halt  in  this  great  work 
at  the  threshhold   of  that  department  in  which 
the  errors   of  the  past  are  most  prominent,  and 
which  has  hitherto  been  the  least  invaded  by  the 
hand  and  the  spirit  of  the  reformer.     The  execu- 
tive and   legislative  departments  of  the  govern- 
ment, were  early  based  on  principles  compara- 
tively liberal,  and  were  so  organized  as  to  secure 
accountability  to  the  source  of  power;  while  the 
judicial  department  has  remained  covered  with 
the  dust  and  mildew  of  antiquity,  and  has  been 
more  an  engine  of  mischief  and  oppression  to  the 
people,  than  a  protection  to  their  rights,  liberties, 
property  and  happiness.     Shall  we  approach  this 
department  with  an  honest  purpose  of  remedying 
the  evils  which  all  admit  are  past  endurance,  or 
shall  we,   by  a  tenacious  adherence  to  individual 
opinions,   and  an  obstinacy  which  at  the  present 
crisis  is  almost  criminal,  defeat  the  just  expecta- 
tions of  the  people,  and  cover  ourselves  with  an 
indelible  disgrace  which  no  future   merit  ought 
ever  to  efface  ?     It  is  apparent  that   concessions 
must  be  made,  that  many  if  not  all  of  the  authors 
of  the  various  projects  which  have  been  submit- 
ted to  this  body  for  its  consideration,   must  yield 
some  portion  of  preconceived  opinion  for  the  sake 
of  harmony  arid  agreement,  or  our  efforts  to  re- 
form the  judiciary  will   prove  entirely  abortive. 
I  am    by  no  means  insensible   to  the  vast  import- 
ance  of  the  subjects,   and   I   think    I  can   fully 
appreciate     the     great    anxiety    of    gentlemen, 
who   doubtless    regard   the    establishment    of  a 
judicial  system    as    of  last    importance  to   the 
people, — and  therefore  surrender  opinions  form- 
ed on    the   most   mature  deliberation   with   the 
utmost  reluctance  ;  but  before  any  gentleman  here 
comes  to  the  unalterable  resolution  not  io  change 
liis  ground,  it  behooves  him  to  be  well  assured  that 
his  efforts  tend  to  improvement  and  reform,  and 
not  to  the  aggravation  and  perpetuation  of  exist- 
ng   evils.     To  this  end   it  is  proper  to  enquire 
whether  the  difficulty  lies  with  the  officers  charg- 
ed with  the  administration  of  justice,  or  is  to  be 
bund   in  a   defective   organization.     A  little  re- 
flection   will,    i    imagine,  suffice  to  satisfy  the 
statesman  or  the  jurist,  that  the  judicial  depart- 
ment  of  this   state  was  originally  organized  on 
erroneous  principles,  and  that  a  blind  adherence 
to  those  principles  has  steadily  resisted  all  im- 
provements.    This  department  had  little  or  no 


716 


agency  in  producing  the  revolution ;  and  in  or- 
ganizing the  new  government,  the  attention  of 
the  framers  of  the  constitution  of  17 1 7,  was  main- 
ly directed  to  those  departments,  whose  en- 
croachments had  so  long  been  the  subjects  of 
complaint  and  resistance.  The  encroachments 
of  legislative  power,  taxation  without  represen- 
tation, and  the  usurpation  of  the  royal  preroga- 
tive, were  felt  by  the  mass  of  the  citizens ;  and 
when  resistance  resulted  in  success,-  all  orders  of 
men,  the  farmer,  mechanic,  and  artizan,  as  well 
as  the  learned  professions,  addressed  themselves 
to  the  work  of  reform,  and  co-operated  in  placing 
the  executive  and  legislative  authority  of  the  new 
government  on  such  a  basis  as  would  secure  the 
people  against  their  encroachments.  But  it  was 
not  so  with  the  judiciary  department.  In  this 
branch  of  the  government  the  lawyer  alone  was 
supposed  to  be  well  informed  of  the  wants  of  the 
community,  and  able  to  provide  an  adequate  pro- 
tection to  the  citizen  through  the  courts.  What 
was  the  American  lawyer  at  that  early  period, 
but  an  ardent  admirer  of  English  jurisprudence  : 
His  attachment  to,  and  admiration  of  Coke  and 
Littleton,  of  Bacon  and  Blackstone,  undoubtedly 
equalled  the  almost  blind  devotion  so  often  ex- 
hibited on  this  floor  by  the  learned  and  ingenious 
gentleman  from  Essex,.  (Mr.  SIMMONS.)  He 
saw,  or  thought  he  saw,  in  the  English  common 
law,  and  in  the  system  of  administration  on  which 
it  was  based,  all  that  was  beautiful,  just,  grand, 
and  useful ;  and  could  no  where  perceive  a  sin- 
gle element  of  mischief,  or  a  single  error  which 
demanded  reform.  He  saw  this  pyramidal  edifice 
of  justice  rising  upon  the  broad  base  of  country 
justices,  by  regular  gradation,  through  the  Barons 
or  leet  courts,  court  of  common  bench,  king's 
bench,  chancery  and  exchequer,  to  that  splendid 
apex  the  house  of  peers;  and  erroneously  supposed, 
that  an  edifice  so  beautiful  in  all  its  proportions, 
so  harmonious  in  all  its  parts,  left  nothing  for  hu- 
man wisdom  to  improve,  and  nothing  for  human 
wants  to  desire.  In  his  blind  admiration  of  ihe 
splendid  exterior,  he  omitted  to  look  behind  the 
trappings  and  imposing  paraphernalia  of  the  tem- 
ple, to  discover  the  fount  of  tears,  the  vase  of  bro- 
ken hearts,  sick  with  "  hope  deferred;"  the  niche 
where  the  serpent  lay  coiled  in  involved  and  in- 
explicable folds,  around  the  very  neck  of  the  god- 
dess, hidden,  it  is  true,  from  the  common  gaze  by 
the  ermine  and  the  robe,  the  full  flowing  wig,  and 
t:ie  meretricious  ornaments;  with  which  she  was 
decorated.  True  to  his  education,  the  Anglo-Ame- 
rican lawyer  fashioned  his  edifice  after  this  great 
examplar.  The  justices'  court,  with  its  ten 
pound  jurisdiction,  was  his  corner-stone,  then 
came  the  common  pleas  or  common  bench — the 
supreme  court  or  kings'  bench,  the  court  ol  chan- 
cery, and  lastly  the  house  of  peers  or  court  for 
the  trial  of  impeachments  and  the  correction  of 
errors.  ISTot  content  with  transplanting  the  ma- 
.chinery  of  his  system  from  mother  England,  he  in 
an  ill-starred  moment,  by  one  of  those  unaccount- 
able follies  or  blunders  which  occasionally  seizes 
upon  nations  as  well  as  individuals,  transferred 
"  the  common  law  of  England,  and  the  statute 
law  of  England  and  Great  Britain,"  in  force  on 
the  lyth  day  of  April,  1115,  to  the  constitution1, 
and  therein  declared  that  it  should  be  and  conti- 
nue the  law  of  the  state,  subject  to  alteration  by 


the  legislature.  Here  was  the  great  first  error, 
and  from  it  has  flowed,  silently  aud  seductively  it 
is  true,  almost  all  the  evils  which  h.o-e  surround" 
ed  and  still  surround  the  administration  of  jus- 
tice in  this  state.  Allow  this  organization  to  re- 
main, and  no  human  effort,  no  skill  or  ability  of 
man,  will  be  found  able  to  relieve  the  people  of 
one  jot  or  tittle  of  the  infamous  and  odious  judi- 
cial oppression  under  which  they  now  sutler  and 
groan.  To  the  lawyer,  the  reason  is  obvious. — 
With  the  adoption  of  the  common  and. statute  law 
of  England,  came  the  books  of  practice,  forms  of 
pleading,  and  rules  of  proceeding,  of  the  English 
courts,  both  of  law  and  equity  ;  not  the  rules  and 
practice  of  the  courts  of  England  as  they  now  ex- 
ist, purged, pruned, expurgated  and  improved,  by 
the  spirit  of  wholesome  reform,  which  lias  found 
its  way  into  Westminster  HalUin  spite  of  intense 
and  ominous  warnings  of  power  and  precedent — 
but  the  pedantic,  technical  and  ceremonious  forms 
of  the  last  century,  the  "orders  in  council,"  so  far 
above  all  improvement,  so  replete  with  philoso- 
phy and  eclecticism,  as  to  command  the  admira- 
tion, and  to  beget  for  them  the  most  extravagant, 
eulogies  of  the  learned  gentleman  from  Essex. — 
The  first  of  the  judges  of  our  courts  took  their 
seats  on  the  bench  prepared  to  perpetuate,  what 
the  convention  thus  began,  by  a  law  education 
strictly  and  thoroughly  English.  Hence  our  sys- 
tem of  jurisprudence  at  its  outset  became  wholly 
English ;  and  precedent,  English  precedent,  en- 
tirely controlled  the  decision  of  all  questions  both 
of  principle  and  practice.  The  judges,  instead  of 
looking  for  the  principles  of  justice  aud  equity.,. 
and  adjudging  between  man  and  manmcoiuorm- 
ity  to  those  principles,  directed  their  efforts  to  a 
laborious  search  of  the  Year  Books,  of  Coke,  Lit- 
tleton, Blackstone  and  Bacon,  to  ascertain  what  an» 
English  judge  had  said  in  a  similar  case,  and  de- 
cided according  to  precedent,  regardless  of  its  in- 
justice, or  its  inapplicability  to  our  condition 

How  often  have  American  judges  remarked, 
that  were  the  question  before  them  a  new  or  un 
open  one,  they  should  feel  constrained  to  decide 
differently,  so  manifestly  unjust  was  the  rule 
found  in  the  book;  but  the  precedent  was  tiie 
other  way,  and  thus  an  acknowledged  judicial 
atrocity  must  be  committed,  rather  than  abandon 
so  respectable  an  authority  as  the  opinion  of  au 
English  judge.  The  practice  of  the  courts  was 
also  controlled  by  Sauaders,  Law  and  other  En- 
glish text  writers.  The  action  of  the  courts  ne- 
cessarily controied  the  actions  and  thoughts  of 
the  bar;  wfio  became  by  the  force  of  circum- 
stances and  education,  the  merest  copyists  of  En- 
glish jurisprudence;  and  when  room,  was  made 
on  the  bench  by  death,  resignation  or  promotion, 
for  a  new  judge,  the  place  was  supplied  by  au 
American  lawyer  with  an  English  education. — 
Thus  the  errors  in  the  practice  of  the  English. 
courts  of  the  last  century  have  been  engrafted  on 
our  system,  and  perpetuated,  and  at  this  moment 
the  text  book  of  forms  in  almost  every  lawyer's 
library,  is  Chitty,  Saunders,  or  some  American 
copyist,  less  accurate,  and  more  technical,  than 
the  English  author.  The  task  of  reforming  these 
evils,  01  ire-organizing  the  courts  on  a  new  plan, 
more  homogeneous  with  our  institutions  and  ha- 
bits of  thinking,  and  of  bursting  the  bonds  ol  le- 
gal thraldom,  so  inexorable  and  destructive,  is  an. 


717 


herculean  one.  It  becomes  the  more  hopeless 
when  we  Find  the  most  talented  and  command- 
inir  lawyers  of  this  body  throwing  tiicir  united 
and  gigantic  force  in  the  way  of  all  legal  re- 
form. When  we  hear  the  gentleman  from 
Cnautauqii",  i  iif  gent  I  email  ti  oin  Ki  te,  .  h.-  yen  lie- 
Hi. m  from  Oneida,  the  gentleman  from  Tmi>a,  tin 
gentleman  Ir-'tn  Si.  Lawrence,  the  gentletna' 
from  Kssex.and  I o  some  '  Nteiit.  rnoie  lh,m  one 
honorable  nentleman  from  Hie  city  <  f  New  YI  rk, 
uriiiriLT  with  unsurpassed  eloquence,  Curve  and  skill, 
the  ft '-nil  on,  as  a  dl-itinct  and  sepai  ate  1 1  ibunal,  oi 
that  gre.it  ItiMtrus  en  the  body  puhtic,  the  Court  H 
Chancery,  and  I  he  enmity  cnuits,  manv  of  \\hich 
in  UK:  esiirmiilun  ot  the  people  have  -alien  hc-ku\ 
contempt,  we  must  despair  ot  accomplishing  an\ 
thniLj  of  ie,d,  substantial  reform.  '1  he  vain/us 
pians  submitted  by  ihose  gentlemen,  while  tne\ 
change  the  names  of  the  courts,  do  not  chance 
the  substance;  because  Ihe  sunsfaiice  is  to  be 
looked  for  in  the  action  and  modes  of  proceeding 
in  the  court>,  and  not  in  I  he  name.  A  change  oi 
na':j.-  merely,  is  gtos»!y  hypocritical,  if  it  is  to  be 
given  to  (lie  peo.oe  ;:s  therefoim  which  they  h-ive 
demai.ded  and  have  a  nu;ht  to  expect  They  have 
ask  d  f.  r  bread,  bu;  \<>n  would  tzive  them  hack  H 
stone  baptized  anew.  Is  this  to  be  regudrd  as  ihe 
pffecf  of  education,  ami  of  long  practice  in  the 
courts  as  no \v  organized,  or  dots  it  arise  from  in- 
dividual  ami  professional  interest  ?  Can  it  not  be 
said  of  these  Dentil-men,  as  was  said  of  Ephr  tiui 
of  old — "tht-y  h.ive  joined  themselves  io  their 
idols,  let  them  aloie?"  Abandoning  alt  tiope  of 
patching  up,  tinkerinii,  and  resuscitating  the  pre- 
sent sysU-n,.  [ess  ourselves  to  the  work 
ot  real  reform.  To  accomplish  this,  in  my  pooi 
judgment,  our  list  duty  is  so  io  reorganize  the 
courts  of  recoid,  as  m -ccss.inly  to  re(]uire  an  en 
tire  change  in  the  practice,  pleadings  and  modes 
of  proceeding.  VVithont  this,  nothing  will  be 
gained.  YOU  m.iy  add  to  the  number  of  your  jutig 
es — vou  may  impose  additional  bur:  liens  on  (he 
people  in  the  foi  m  of  .>alanes  and  tees  of  oilirer- 
—  you  tnav  fj.ake  \">ur  courts  more  august,  and  in 
the  vi, 'W  ot  so;j;e  i(:-'itieme«i  here,  more  dignified 
and  ic  -3hli.it' they  are  notonlv  allowed, 
but  invred  by  our  aclmn  here  io  proceed  according 
t:>  the  pies.-n:  practice  in  l<'»w  and  equity — our 
latter  end  will  be  n. finitely  \vorse  ihan  the  begin- 
nirm.  Gentlemen  still  talk  of  tiling  bills  in 
equity,  as  a,  di--;inct  and  separate  remedy  — 
I  le-i-et  to  hear  it,  because  it  implies  ihot 
the  presei  t  cumbersome,  technir.il,  involved 
tt'id  ex:i<Misi  v.--  i.r.ifM'c-'  is  i  mi  ispen.-ihle  to 
the  attainment  of  justice  in  our  courts.  Such 
is  the  infirmity  oi'  the  human  intellect,  and  par- 
ticularly of  the  cultivated  intellect,  thai  when  it 
ice  hern  directed  in  a  particular  channel,  it. 
continues  to  run  on  in  thatchanncl.  however  dusty 
-!i,  rather  than  turn  aside  into  a 
more  i  ,jjr,w.t  way.  \]y  wiltlt 
1  have  heard  in  this  HuJt,  |  am  painfully  impres- 
sed with  the  conviction  that  the  discipline  of  the 

nns  and  tcciinicalities  of  hia 
n,  serves  to  cramp   the  mind,  ;>nd  (ill  it  with 
the     most    inco  sional    bigotry. — 

It  seems  to  be  thus  with  several  h-gal  gentlemen 
on  this  floor.  ihiving  been  accustomed  to  a 
Court  of  Chancery  as  a  distinct  court,  and  to 
courts  or  law  of  separate  jurisdiction,  thev  cannot 


conceive  that  a  single  court  can  dispense  justice 
according  to  law  and  equity.  Is  justice  so  slip- 
pery, so  coy  and  coquettish,  that  she  must  be 
\\ooed  in  set  forms  of  cunningly  devised  fiction, 
io  gain  her  confidence  ?  And  if  the  suitor  fails 
nre  her  favor,  through  the  elegancies  of 
common  law  diplomacy,  may  ho  then,  humbled 
and  subdued  by  the  rebuff,  approach  her  in  the 
sycophantic  verbiage  of  the  Court  of  Chancery, 
"  humbly  complaining  showeth  unto  your  honor, 
your  orator,  &c"?  Here,  of  course,  the  trem- 
bling culprit  can  open  his  whole  heart — hero  he 
may  speak  in  eloquent  and  glowing  phrase  of  all 
his  wrongs,  and  give  full  scope  to  his  invention — 
provided  he  does  so  with  becoming  humility. — 
Has  not  the  American  mind  yet  vigor,  and  force, 
and  independence  enough,  to  rise  above  the  stu- 
pid pedantry,  and  miserable  trickery,  of  the  dark 
ages?  Is  it  still  willing  to  be  circumvented,  co- 
zened and  wronged  by  technical  ace  urn  en,  and 
smothered  in  the  smoke  and  mist  which  envel- 
op the  courts  of  record'of  this  stale  ?  Is  it  not  a 
reproach  that  we  cannot  speak  the  plain,  direct, 
and  manly  language  of  freemen,  in  the  courts  of 
the  People  ?  Is  it  still  necessary  that  pleadings 
should  be  a  falsehood  and  a  mystery,  calculated 
to  mislead  even  the  high  priest  at  the  altar  of 
justice,  and  replete  with  vexation,  mortification 
and  disappointment  to  counsel,  and  downright 
robbery  and  destruction  to  parties  ?  Must  there 
still  be  a  magic,  fatal  as  the  fascination  of  the 
serpent,  in  declarations,  pleas,  replications, 
rejoinders,  lebuueis,  >uri  eoui  iris,  ivi .[<  uU^is,  de- 
muireis,  avownes,  and  the  long  catalogue  ot  t.ar- 
barous  names  of  equity  proceedn  gs?  So  we  must 
think,  when  ue  hear  gentlemen  of  high  kgal  a{. 
lainmenls  and  vast  learning  singing  psalms  to  the 
simplicity  of  the  common  law  toims.  Is  it  still 
be'ieved  that  low,  barren  fiction,  is  necessary  to 
(lie  investigation  of  f>cr,  v.i.d  ihe  asci  riainmt  nt  of 
iiulii?  Can  a  bald,  palpable,  tau  e.iood,  aid  the 
conn,  or  be  just  to  an  atheisarv?  And  yet.  the 
forms  of  the  common  law  not  "idy  allow  of  fali-e- 
bood,  but  require  silly,  stupid  fie;  ion,  in  a  variety 
of  piejdin^s.  Even  the  in'ich  lauded  action  on  a 
promissory  note,  which  is  said  to  be  so  direct  and 
simple,  is  usually  preceded  or  followed  b\  the  ng- 
rn.irole  of  the  common  comts,  whicii  only  s-.-rve  to 
mislead  and  perplex  a  plain  man,  \N!.O  km:,\>  ihe 
ii'ite  is  rhe  only  just  claim  which  c..n  be  made 
against  him  ;  andjhere  is  hardly  a  common  law 
action  which  may  riot  be  made  complicated  aid 
dilatory,  t/y  what  is  known  as  special  pleading. 
So  troublesome,  unceitain,  at;d  unj'isi  the  the  sys- 
tem ot  ii, ere  special  (.leading  become,  that  Uio 
Cnuits  were  ('billed  to  lessen  MM-  t  vil  '•• 

of  judicial    ingenui  y.       Tne  general  iNxiic 
was  allowed    to  take    the  place    oi   ei.n.-mon  • 
against  legal  subilety.  and  all  im.iuinable  deience, 
na'-hing  back  to  theoituin  ni  cause  oi  Action,  may 
now  be  given  in  evidence  under  tin's  plan.    Hut  not 
having  gained  an  entn  e  redemption  li  orn  tile  -i;iii<  s 
of  technicality  by  the  general  issue,  the   no- 
special  defences,  attached  to  i  hi8  plan,  w;.s  niM-it- 
•d  a-  -...u  aid.    and  the   j»;nf.    operation  c!   i:.e  I-.VM 

•  •n  of   immense  service  !••;  the  c<  Ul'ts,  : 
Iliiyatifs.       All  thir.  siious  thiit   relol  in   is   ehSuV    Hi- 

tamable  by  u^ing  the  language  «l  iiuiiim  all  • 

to  the  enure   exclusion   c  f  fiction,  ami  a  disre.^,,rd 

to  form.     HOW  is  it  to  be  accomplished  ?     Do  >ou 


718 


not,  by  keeping  the  two  juried ic  ions  distinct, 
inviie  to  a  continuance  of  ihe  same  system,  the 
same  practice  and  form,  10  which  the  court  and 
the  bar  have  been  so  long  acrusiomed  ?  Gen  lie- 
men  may  on  this  fl  tor  manifest  a  strong  desire 
to  see  simplicity  take  ihe  place  of  complexity 
— directness  the  place  of  circumlocution — arid 
truth  the  place  of  falsehood  and  fiction ;  but 
do  they  not  hope  against  expectation  ?  Where  is 
the  work  to  begin  ?  Who  is  to  become  the  pion- 
eer in  securing  to  the  people  this  great  benefac- 
tion ?  The  bar  cannot,  if  it  would,  without  the 
aid  of  the  courts;  and  the  courts  will  never  find 
time  and  inclination  to  direct  it  to  be  done.  The 
bar  will  follow  the  practice  with  which  they  are 
familiar,  rather  than  study  principles,  and  frame 
or  invent  new  modes  of  proceeding,  unknown  to 
the  courts,  with  the  hazard  of  meeting  a  judicial 
determination  against  them.  The  court  finding 
rules  and  forms  ready  made  to  their  hands,  will 
not  enter  up<  n  the  labor  of  abolishing  the  worth- 
less, remodelling  the  bad,  'and  improving  the  tol- 
erable. They  have  had  the  power,  but  instead  of 
exercising  it,  they  have  constantly  been  multi- 
plying the  evils.  Does  the  future  promise  any 
thing  better  ?  This  work  requires  boldness,  in- 
telligence and  integrity,  for  it  will  be  met  and  op- 
posed by  cunning,  artifice,  interest,  learning  and 
numbers,  by  all  the  arguments  which  sophistry  can 
invent  and  cupidity  enforce.  We  have  heard 
them  here.  Difficulties  have  been  multiplied  and 
heaped  upon  us,  like  "  Pelion  on  Ossa  piled." — 
We  have  heard  that  the  two  systems  are  incom- 
patible, and  the  union,  therefore,  impossible; 
and  where  argument  has  failed,  the  quaint  autho- 
rity of  long  lost  centuries  has,  with  immense  la- 
bor, been  exhumed,  and  its  spectral  form  held  up 
to  our  view,  to  terrify  us  back  into  obedience. — 
The  objections  to  the  union  of  the  systsms,  are 
objections  of  mere  learning ;  they  smell  of  the 
shop.  I  do  not  wish  to  be  regarded  as  an  enemy 
of  learning:  it  is  the  aliment  of  true  wisdom, 
and  it  is  only  when  books,  and  the  maxims  of 
writers,  banish  original  thoughts  and  tie  down 
the  faculties  to  mere  precedents,  that  they  be- 
come pernicious.  The  mere  scholar  or  stickler 
for  precedent,  never  wrought  out  a  reform  or 
struck  out  a  new  principle  for  the  advantage 
of  humanity  ;  but  the  master-spirits  who  have 
shed  a  broad  blaze  of  living  and  eternal  light 
on  the  world  during  the  lasj  two  'centuries, 
have  spurned  the  trammels  of  authority,  and 
plunged  into  the  arena  of  matter  and  mind, 
pursuing  their  researches  and  investigations  by 
the  aid  of  strong  original  common  sense,  in  de- 
fiance of  precedent  and  authority.  Had  Lord  Ba- 
con (so  freely  quoted  by  the  gentleman  from  Es- 
sex) regarded  the  authority  of  Aristotle,  whose 
erronous  dogmas  had  enthralled  the  world  for  2UOU 
years  as  mfalliable,  his  A  ovum  Or gauum,  would 
still  have  been  a  sealed  book  in  the  Chancery  ol 
Heaven,  unknown  to  mortals.  Had  Copernicus  and 
Gallileo,  pursued  their  investigations  by  the 
lights  of  precedent,  instead  of  the  lights  of  the 
stars,  we  should  probably  at  this  day  feel  the 
same  security  for  our  habitations,  which  gave 
confidence  to  Deacon  Homespun's  faith,  that  his 
mill-pond  stood  on  a  foundation  as  firm  as  a  rock, 
because  it  was  tlat  as  a  pancake.  Had  Watts,  and 
Fitch,  and  Fulton,  been  content  with  the  devel- 


opments which  had  preceded  them,  in  the  dis- 
covery and  application  of  motive  powers,  that 
mighty  agent,  which  now  annihilates  space,  and 
with  untiring  sinews  performs  the  labour  of  man 
and  beast,  might  still  have  sung  its  evening  lulla- 
by to  the  good  housewife's  chimney-corner  nap, 
from  the  nose  of  her  tea  kettle,  undisturbed.  But 
of  all  the  mighty  arguments  against  the  policy  of 
doing  nothing,  for  which  we  cannot  find  a  prece- 
dent in  the  opinion  of  some  great  man  or  a  series- 
of  great  men,  our  own  form  of  government  fur- 
nishes the  strongest.  Had  the  tisk  of  framing  a 
constitution  to  perfect  the  work  of  the  revolution, 
been  committed  to  the  gentleman  from  Essex, 
(Mr.  SIMMONS,)  deplorable  indeed  would  be  our 
condition.  A  curious  patchwork  of  incongruous 
principles,  more  motley  than  Joseph's  coat  of  ma- 
ny colours,  would  it  have  been.  Wherever  a  pre- 
cedent could  have  been  found  in  all  the  language 
of  all  the  nations  of  the  earth,  it  would  have  been 
transferred  to  the  new  instrument,  and  the  courts 
in  expounding  it,  could  have  diversified  their  la- 
bours with  singing  "  God  save  the  King"  the 
"  Marsailles  Hymn,"  the  "  Blue  Bonnets  over  the 
Border"  and  a  variety  of  National  airs — but  the 
treason  of  Yankee  Doodle  would  have  stuck  in 
their  throats.  The  system  which  we  shall  form, 
requires  originality.  Shall  it  be  said  that  in 
this  body  this  necessary  element  cannot  be 
found  ?  I  trust  this  is  an  admission  which 
no  delegate  will  be  found  ready  to  make 
The  originality,  which  I  conceive  to  be 
indispensible,  is  not  incompatible  with  syme- 
try,  nor  destructive  of  utility.  I  am  happy  to  be- 
lieve that  it  has  already  been  discovered  and  ap- 
plied by  the  committee  on  the  judiciary,  and 
given  to  us  in  the  report  of  the  majority  of  that 
committee.  After  the  most  mature  examination 
which  I  have  been  able  to  give  that  report,  I  am 
persuaded  of  its  feasibility,  and  ready  to  give  the 
principal  features  of  it  my  most  hearty  support. 
1  believe  it  contains  the  elements  of  that  great  re- 
form which  1  ardently  and  earnestly  desire  to  see 
adopted ;  and  with  the  aid  of  certain  other  provi- 
sions, which  the  report  of  the  committee  on  the 
codification  of  the  laws  will  furnish  us,  and  the 
hand  of  the  legislature  which  is  to  come  after  us, 
I  have  no  doubt  a  new  era  in  the  history  of  juris- 
prudence will  dawn  upon  us. 

In  yielding  my  assent  to  this  report,  I  must  not 
be  understood  as  admitting  that,  it  contains  the 
best  system  which,  in  my  opinion,  could  be  de- 
sired ;  but  its  excellence  is  so  pre-eminent  over 
all  the  other  propositions  which  have  been  sub- 
mitted to  the  Convention,  that  I  am  willing  to  for- 
go my  individual  preferences,  and  support  it  as- 
the  best  which  in  the  present  posture  of  affairs 
is  attainable— reserving  to  myself  the  right  to 
propose  such  amendments  as  in  my  judgment 
would  improve  it.  The  court  for  the  trial  of  im- 
peachments finds  no  opponents  here;  it  is  there- 
fore to  be  regarded  as  established.  The  commit- 
tee having  passed  over  the  sec  )nd  section,  rela- 
ting to  the  court  of  appeals,  I  am  led  to  conclude 
that  it  is  generally  acceptable  to  the  members  of 
this  body,  and  for  that  reason  I  do  not  think  it 
worth  my  while  to  occupy  the  time  of  the  com- 
mittee in  examining  it.  Still,  I  must  be  allowed 
to  suggest  a  single  objection  to  it,  in  its  present 
form.  I  should  have  preferred  it,  had  the  judges 


719 


of  the  court  held  their  offices  by  the  same  tenure. 
This  court  is  emphatically  the  court  of  the  whole 
.mil  in  my  judgment.  tin-  judges  should  be 
id  In  the  people  In  general  ticket  Thcv 
•would  then  have  come  into  ollice  by  the 
constituent  authority,  have  held  their  offices  by 
the  same  tenure,  and  have  felt  a  perfect  equ;>lit\  . 
By  the  report,  one  half  of  them  are  brought  in 
from  the  bench  of  the  supreme  court,  elected  in 
districts  and  not  by  the  whole  people,  responsible 
to  a  different  constituency,  and  with  the  weight 
of  judicial  authority  which  a  six  years'  service  in 
another  court  will  give  them.  This  may  lead  to 
unpleasant  difference^ of  opinion,  and  to  such  a 
division  of  the  court  that  no  judgment  can  be 
pronounced  ;  as  the  court  would  be  likely  to  be 
equally  divided.  Again,  I  do  not  think  it  a  de- 
sirable principle  of  organization,  to  so  constitute 
the  court  of  last  resort,  that  one  half  of  its  judges 
shall  sit  in  review  of  its  own  decisions,  pronoun- 
ced in  another  tribunal.  They  should  be  entirely 
free  from  pre-conception  and  bias,  arid  be  able  to 
bring  an  impartial  judgment  to  the  examination 
of  questions  brought  to  that  court  for  final  adju- 
dication. This  is  important  to  the  last  degree, 
when  grave  questions  of  constitutional  law  are  to 
be  definitely  settled.  If  I  cannot  get  the  section 
amended  in  this  particular,  I  shall  still  cheerfully 
abide  the  result 

The  constitution  of  the  supreme  court,  meets 
my  hearty  concurrence.  I  should  have  preferred 
a  division  of  the  state  into  twelve  instead  of  eight 
judicial  districts.  Still  this  does  not  ati'ect  the 
principle.  I  feel  confident  that  this  part  of  the 
plan  of  the  Committee  will  secure  a  variety  of 
most  important  and  valuable  reforms,  and  first 
and  foremost  is  that  greatest  of  all,  deliverance 
from  judicial  oppression,  the  virtual  annihilation 
of  the  court  of  chancery — or  in  other  words,  the 
union  of  the  two  jurisdictions  of  law  and  equity 
in  the  same  court.  Ihave  long  indulged  the  hope 
that  U,ie  time  would  come  at  last,  when  all  judi- 
cial determination  should  be  but  the  application 
of  equity  and  immutable  justice  between  man 
and  man.  To  accomplish  this,  I  cannot  think 
two  independent  jurisdictions  and  two  entirely 
distinct  modes  of  proceeding  are  necessary;  and 
T  am  quite  sure  that  the  same  court  will  be  tound 
fully  competent  to  the  task  of  doing  such  equal 
and  exact  justice,  as  is  attainable  here  below, 
whether  schoolmen  would  call  it  law  or  equity. 
By  uniting  the  jurisdictions,  1  have  no  doubt  the 
practice  will  be  assimilated  and  simplified,  and  1 
may  add  purified  and  intelligible.  This  union 
will  create  a  necessity  for  a  new  practice,  in 
which  1  hope  to  see  all  that  is  useless  and  perni- 
cious stript  away  and  rejected  forever.  Another 
valuable  feature"  of  the  plan  is,  the  bringing  of 
the  courts,  both  in  bane  and  nisi  prius,  into  al- 
most, if  not  quite,  every  county  in  the  state.  In 
addition  to  breaking  up  an  onerous  monopoly, 
which  has  been  the  inevitable  consequence  of 
the  present  system,  it  will  bring  the  courts  with- 
in tiie  reach  of  the  country  practitioner,  and  re- 
dound greatly  to  the  advantage  of  the  country- 
lawyer  and  his  client,  who  is  entitled  to  the  be- 
nefit of  his  investigations  and  his  superior  know- 
ledge of  the  cause.  .Now  the  country  lawyer  is 
obliged  to  abandon  his  client's  cause  at  the  criti- 
cal moment  when  his  services  are  most  important, 


and  entrust  the  case  to  a  new  man  ;  who  must 
from  necessity,  argue  from  a  brief,  with  such 
knowledge  only  as  the  papers  may  furnish  him. 
rganization  of  eight  b;mc  courls,  linvioir 
authority  to  sit  in  any  county  in  the  district,  will 
obviate  this  difficulty,  and  relieve  the  profession 
and  the  community  from  the  burthensome  tax 
which  the  present  s\stem  imposes.  I  regard  the 

election  of  the  judges  as  a  great  improvement. 

Of  all  the  various  kinds  of  tyranny,  judicial  ty- 
ranny is  the  most  provoking  and  injurious  to  the 
public  welfare.  The  judge  who  sits  alone,  cold 
and  isolated,  and  exclusive,  insensibly  to  h'imself 
becomes  a  petty  tyrant,  and  is  very  apt  to  lord  it 
over  his  fellow-citizens  and  equals — possessing  a 
heart,  dead  to  sympathy,  and  a  mind  habitually 
ascetic  and  indisposed  to  social  intercourse.  By 
electing  the  judges  for  reasonably  short  periods, 
they  will  come  to  regard  the  people,  the  source 
of  all  power,  with  more  leniency,  and,  I  trust, 
learn  to  respect  the  rights  of  jurors,  witnesses' 
counsel  and  parties.  I  have  too  often  seen  the 
judge,  instead  of  giving  the  law  to  the  jury,  di- 
rect them  to  find  a  verdict  of  a  particular  kind, 
and  frown  down  all  independence  and  deny  all 
right  to  judge  on  the  part  of  the  jury;  carrying 
their  authority  so  lar  as  to  fine  a  juror  for  not 
agreeing  to  a  particular  verdict.  Such  usurpation 
renders  the  trial  by  jury  a  mockery ;  and  it  is  but 
reasonable  for  a  judge  to  know  and  feel  thatthere 
are  well  defined  limits  to  his  authority,  where  the 
authority  ot  others  begins.  If  he  shall  be  sub- 
jected to  the  ordeal  of  frequent  election,  it  can- 
not deprive  him  of  rightlul  authority  and  needful 
independence,  but  will  restrain  a  tendency  to 
tyranny  and  encroachment  on  the  rights  of  others. 
The  wise  system  of  requiring  the  same  judge  to 
perform  bane  and  circuit  duty,  will  be  of  essen- 
tial aid  to  the  judge.  By  mingling  with  the  peo- 
ple at  the  circuit,  he  will  learn  to  know  them  • 
he  will  become  acquainted  with  the  wants  of  the 
community,  and  will  carry  into  his  study  a  know- 
ledge of  every-day  life,  instead  of  the  Irigid,  tech- 
nical maxims  of  the  dead,  and  the  wire-drawn 
subtilities  of  the  law,  found  in  the  writings  of 
both  the  living  and  the  dead.  Another  most  es- 
sential reform  is  the  result  ofthis  plan,  the  aboli- 
tion of  the  common  pleas  courts,  as  now  organized. 
Worthless  and  expensive  to  the  last  degree,  it  is 

wisdom  to  correct  the  evil  by  abolishing  them. 

The  people  have  long  since  come  to  regard  this 
court  with  the  most,  decided  disfavor,  and  no  court 
can  be  useful  which  has  lost  the  public  confidence. 
The  error,  1  think,  may  be  found  in  the  mode  of 
compensation.  I  have  never  believed  that  any 
oih'cer  was  unproved  by  per  diem  compensation, 
and  I  am  sure  that  experience  has  shown  this  to 
be  the  very  worst  mode  of  compensating  a  judicial 
officer.  In  the  county  of  Utsego,  the  court  of 
common  pleas,  with  a  calender  of  from  eight  to 
twelve  issues  of  fact,  occupies  from  six  to  ten 
days  in  trying  them  ;  but  the  circuit  judge,  with 
a  calender  of  from  thirty  to  forty  issues,  seldom 
sits  over  four,  and  often  not  over  two  days.  Suit- 
ors, witnesses,  jurymen  and  counsel,  feel  the  dif- 
ference, and  appreciate  the  superior  excellence 
of  the  circuit,  compared  with  the  common  pleas; 
and  all  are  desirous  of  getting  rid  of  an  evil  so 
onerous  and  expensive.  1  think,  however,  a  little 
reflection  must  satisiy  us  that  a  kind  of  county  court 


720 


will  be  indispensable.  It  is  true  the  13th  section  of 
this  report  confers  power  on  the  legislature  to 
organize  tribunals  of  inferior  jurisdiction,  but  I 
am  by  no  means  satisfied  that  such  power  should 
be  reserved  to  the  legislature.  I  incline  to  the 
opinion,  that  it  is  safer  to  provide  a  complete 
judicial  system  in  the  constitution  itself,  leaving 
as  little  to  legislative  discretion  as  possible. 

The  proposition  of  the  gentleman  from  Catta- 
raugus  (Mr.  CROCKER)  with  some  amendment, 
would  meet  my  approbation.  A  single  competent 
judge  in  each  county,  having  no  original  jurisdic- 
tion, but  having  jurisdiction  to  hear  cases  arising 
on  certiorari  to  justices  courts,  and  to  discharge 
the  various  duties  of  a  special  character  now  per- 
formed by  the  court  of  common  pleas,  or  a  judge 
at  chambers,  such  as  proceedings  under  the 
landlord  and  tenant  act,  and  the  statutes  in  rela- 
tion to  bastardy,  the  poor,  insolvent  debtor,  &c, 
&c.  will  be  found  to  be  indispensible ;  but  I  do 
not  believe  that  this  court  should  be  allowed  to 
call  a  jury  from  the  county  at  large.  If  it  had 
this  power,  the  people  would  gain  nothing  by  the 
change.  The  surrogate  can  very  properly  be  in- 
vested with  these  necessary  judical  powers. — 
Make  your  surrogate  a  judge,  and  give  him  a 
competent  salary  instead  of  fees  ;  and  you  will  get 
a  good  officer,  and  the  people  will  get  relief  from 
certain  unjust  exactions  which  have  for  a  long 
period  been  the  subject  of  very  just  complaint. — 
Can  any  man  tell  me  why  the  public  has  provi- 
ded tribunals  for  the  use  of  the  living,  but  have 
neglected  to  do  that  justice  to  the  dead  ?  No  man 
is  obliged  to  litigate,  but  who  can  escape  the  final 
doom  which  awaits  us  all.  No  man  may  be  ob- 
liged to  use  the  court,  but  whose  heirs,  sooner 
or  later,  may  not  be  obliged  to  use  the  surrogate, 
and  subject  to  such  exactions  as  the  law  may  al- 
low him  to  make  ?  The  state,  in  the  plenitude  of 
its  justice,  affords  facilities  to  the  litigious,  the 
vicious,  and  the  evil  disposed ;  but  taxes  the  wi- 
dow, the  orphan,  and  the  unfortunate.  In  my 
opinion,  the  people  should  provide  the  orphan's 
court,  first;  and  to  do  this,  is  a  controling  object 
with  m  -  in  supporting  the  project  of  the  gentle- 
man from  Cattaraugus,  modified  as  I  have  sugges- 
ted. The  provision  for  a  county,  judge  contained 
in  this  proposition,  the  court  of  appeals,  and  the 
thirty-two  judges  of  the  supreme  court  divided 
into  eight  districts,  I  am  confident  will  be  found 
to  be  amply  sufficient;  and  I  confess  the  system 
commends  itself  so  strongly  to  my  favor,  that  I 
cannot  under  any  circumstances  be  induced  to 
abandon  its  main  features. 

I  cannot  dismiss  this  subject,  Mr.  Chairman, 
without  briefly  examining  the  domestic  courts,  and 
considering  some  of  the  propositions  to  change 
their  organization  and  improve  their  character. 
The  justices'  courts  are  invaluable  and  indispensa- 
ble to  the  community.  It  is  the  cheap,  convenient 
court  of  all  classes  of  the  people;  the  tribunal  of 
neighborhoods.  I  see  no  reason  for  changing 
them.  If  it  shall  be  found  advisable  to  enlarge 
their  jurisdiction,  the  power  to  do  so  will  always 
be  found  in  the  legislature,  and  can  and  will  be 
exercised  us  occasion  may  require.  'lh:s  power 
has  frequently  been  exercised  by  the  legislature, 
raising  the  jurisdiction  from  $25  to  $50,  and  sub- 
sequently from  $50  to  $100.  No  complaint  has 
been  heard  against  this  legislative  action,  and  I 


believe  we  shall  act  wisely  if  we  let  this  matter 
stand  where  we  found  it.  The  gentleman  from 
New-York  (Mr.  MORRIS)  has  proposed  to  make 
the  justices'  court  a  town  court,  with  a  town 
house,  a  clerk,  a  jury  box,  with  theparapharnalia 
of  a  court  of  record:  This,  in  my  judgment, 
would  greatly  impair  their  usefulness,  and  des- 
troy their  domestic  character.  If  the  gentjeman 
had  gone  a  little  farther  in  his  reform  movement, 
and  transferred  the  cart  loads  of  chancery  rubbish 
to  his  august  town  court,  and  conferred  exclusive 
chancery  powers  .on  it,  it  would  have  been  a  glo- 
rious remedy  for  all  "  the  ills  which  flesh  is  heir 
to,"  past,  present,  and  to  come. 

The  gentleman  from  Genesee,  (Mr.  RICHMOND) 
my  honorable  colleague,  (Mr.  ST.  JOHN,)  and  the 
gentleman  from  Monroe,  (Mr.  STRONG,)  have 
proposed  that  the  jurisdiction  of  justices  should 
be  increased  to  $250,  giving  them  exclusive  and 
conclusive  jurisdiction  nominally  to  $100,  but 
really  to  $250.  I  confess  I  was  surprised  at  this 
proposition.  Do  gentlemen  suppose  that  the  in- 
fallibility of  judicial  judgment  is  increased  in  the 
ratio  of  the  ignorance  of  the  judge  ?  When  it  is 
known  that  justices  must  often  act  under  the  in- 
fluence of  neighborhood  excitement,  catching  the 
prevailing  spint,and  being  moved  by  its  impulse, 
can  it  be  a  safe  rule  to  declare  that  a  judgment, 
the  offspring  of  such  passions,  shall  be  conclu- 
sive? I  am  aware  that  a  review  is  provided  for, 
but  if  manifest  errors  require  that  a  new  trial 
should  be  had,  it  is  to  be  sent  back  for  a  second 
chance  to  the  same  town  or  an  adjoining  town, 
and  the  second  trial  is  to  be  final  and  conclusive. 
If  sent  back  to  the  same  magistrate  for  re-trial,  I 
ask  what  guarantee  have  we  that  the  justice, 
knowing  that  his  acts  can  never  be  reviewed, 
may  not  yield  to  passion  or  prejudice,  and  judi- 
cially punish  an  enemy  or  reward  a  friend?  How 
would  justice  be  administered  between  the  rich 
and  powerful  on  the  one  hand,  and  the  humble 
citizen  seeking  justice  on  the  other,  befqje  the 
friend  and  neighbor  of  the  former?  .Sir,  I  am 
sorry,  sincerely  sorry,  that  any  gentleman  should 
have  fe[t  such  insane  confidence  in  the  im- 
maculate integrity  and  infallibility  of  justices 
of  the  peace.  Let  these  gentlemen,  while 
they  are  so  prolific  in  charges  of  a  want  of 
integrity  and  motives  of  self  interest  of  the  legal 
profession,,  ask  themselves,  whether  this  propo- 
sition has  received  a  more  favorable  consideration 
with  them  in  consequence  of  their  peculiar  posi- 
tion ?  The  gentleman  from  Genesee  is  a  justice 
of  the  peace  ;  the  gentleman  from  Otsego  is  or 
has  been  a  justice ;  and  my  excellent  friend 
from  Monroe,  if  not  a  justice,  is  a  celebrated 
practitioner  in  that  tribunal.  It  cannot  be  sup- 
posed that  interest  or  personal  vanity  can  have 
had  any  influence  with  either  of  them  ;  and  I  am 
sure  that  all  my  honorable  friend  from  Monroe  is 
seeking,  is  to  enlarge  the  sphere  of  his  useful- 
ness. "Sir,  I  do  not  object  to  enlarging  the  juris- 
diction of  justices  of  the  peace  to  $250  or  $500 
in  actions  of  assumpsit;  but  I  do  most  solemnly 
protest  against  our  making  the  judgment  of  a 
justice  final  and  conclusive  between  the  parties, 
it  is  not  safe  or  prudent  to  do  so.  Leave  these 
courts  to  legislation,  and  let  us  in  making  a  Con- 
stitution, provide  only  for  such  departments  as 
must  enter  into  the  organic  law. 


721 


Sir,  I  have  said  all  that  I  deem  it  advisable  to 
say  in  relation  to  the  judicial  system  which  we 
are  about  to  create.  Having  urged  the  adoption 
of  the  report  of  the  majority  of  the  committee  on 
the  judiciary,  from  a  sincere  conviction  that  the 
people  of  this  state  will  derive  incalculable  ben- 
efits from  its  practical  operation,  I  am  content  to 
leave  it  to  coming  time  to  develope  those  practi- 
cal truths  which  shall  cover' it  with  the  glory  it 
deserves. 

Mr.   CROOKER  said  when  he  took  his  seat  in 
this  Convention  he  brought  with  himself  only  an 
ardent  desire  to  aid  with   his  humble  powers  in 
the  great  work  of  judicial  and  legal  reform.     He 
came  wedded  to  no  peculiar  notions  or  precon- 
ceived opinions  of  his  own.     He  came  fully  pre- 
pared for  all  the  conciliation  and  concession  that 
might  be  necessary  to  accomplish  the  changes  re- 
quired by  the  people.     He  had  felt  a  high  degree 
of  reluctance  to  take  any  part  in  the  debate  upon 
the  great  subject  of  judicial  reform.     His  reluc- 
tance arose   from   the  fact  that  so  many  giant 
minds  had  been  already  employed  upon  the  sub- 
ject.    He  distrusted  his  own  ability  to  give  any 
view  of  that  subject  that  could   prove   useful  to 
the  Convention.     But  from  his  position  in  rela- 
tion to  some  portions  of  the  questions  before  them, 
he  felt  constrained  to  ask  the  indulgence  of  gen- 
tlemen while  in  a  few  brief  words  he  should  give 
the  result  of  his   reflections.     He  should  gratify 
some   gentlemen  by  taking  up  as  first  in   order 
the  subject  of  justices  courts.     Few  members  o] 
this  body  could   have    had  more  experience  in 
these   humble  courts  than  himself.     These  are 
emphatically  the  courts   of  the  great  body  of  the 
people.     They  are   entitled  in  the  main  to  much 
of  the  encomium  bestowed  so  liberally  upon  them 
He  could  not  agree  with  gentlemen  who  desirec 
to  extend  the  jurisdiction  of  these  courts  to  two 
hundred  and  fifty  dollars.     Their  present  juris- 
diction is  large  enough.     The  popular  voice  has 
never  demanded  an    increase  of  jurisdiction. — 
Give  to  these  courts  only  concurrent  jurisdiction 
to  any  amount,  and  my  word  for  it  you  will  fine 
but  few   plaintiffs  who  would  seek  the  recover 
of  their   demands  in  these  courts.     They  woul< 
almost  invariably  go  to  a   more  stable  and  eleva 
ted  tribunal.     They  will  go  where   they  can  fine 
legal   learning  upon  the  bench  to  determine  the 
questions   of  law  that  may  arise  in  their  causes 
They  will  go  where  they  can  recover  some  costs 
however  small  the  amount,  to  repay  their  counse 
for  seeking  redress  for  their  opponent's  wrong. — 
There  could  be  no  possible  inducement  for  sue! 
plaintiffs  to  prosecute  their  claims    in   justices 
courts.     While  many  of  these  courts  had  prove( 
to  be  safe  and  useful  depositories  of  power,  other 
had  too  often  been  perverted  into  engines  of  in 
justice  and  oppression.     Their  position   as  we) 
as  their  governing  principle  was  too  often  locali 
ty.     They  are  too  often  controlled  by  some  sec 
tional  power  and  influence.     The  magistracy  o 
his  own  neighborhood  was  equal  to  the  averag 
in  the  state,  but  my  honorable  friend  from  Chau 
tauque  [Mr.  MARVIN)  will  bear  me  witness  tha 
the  opinion  has  long  prevailed  in  his  village  tha 
their  citizens  could  not  always  find  equal  and  ex 
act  justice  when  prosecuted  before  justices  m  th 
neighborhood  of  my  residence.     The  citizens  c 
my  own  vicinage  have  an  equal  dread  of  prosecu 


ons  from  the  village  which  he  inhabits.  How 
ver  free  other  older  and  more  favored  portions  of 
state  may  be  from  these  sectional  influences, 
exemption  has  not  been  universally  enjoyed, 
n  many  of  the  new  settlements  this  influence  is 
elt  as  an  evil  of  fearful  magnitude.  He  had 
nown  justices'  courts  where  the  justice,  consta- 
le,  jury  and  counsel  for  the  plaintiff  were  all 
ound  together  by  kindred  ties.  The  poor  wretch 
vho  was  prosecuted  in  a  court  so  constituted, 
nust  necessarily  feel  the  utter  hopelessness  of  all 
efence.  He  might  as  well  and  often  did  aban- 
on  his  defence,  after  making  his  pleadings  in 
orm.  The  manner  of  selecting  j  uries  in  justices 
ourts  was  defective  and  ooened  the  door  for  the 
most  gross  corruption.  The  constable  if  he  was 
.onest,  summoned  those  who  were  nearest  at 
land  and  who  were  generally  unfit  to  be  trusted 
vith  the  decision  of  causes.  He  could  not  for 
he  pittance  paid  him  for  the  service,  select  the 
ury  with  care  from  competent,  safe  and  intelli- 
ent men.  The  idlers  and  vagabonds  who  had 
10  business  of  their  own,  hanging  around  the 
;ourt,  like  vultures  around  a  carcass,  formed  the 
great  mass  of  its  juries.  In  very  many  causes 
he  evil  was  of  a  stronger  character.  In  strongly 
contested  trials  the  people  discussed  the  merits 

and  took  sides  with  the  parties  in  the  contest. 

A  corrupt  constable  would  summon  a  jury  at  the 
selection  'and  dictation  of  the  plaintiff,  who  al- 
ways chooses  his  ground  on  which  to  prosecute, 
as  well  as  the  officer  to  serve  his  process.    These 
glaring  evils  could  only    be   remedied  by  chang- 
ng  and  improving  the  mode  of  selecting  juries  in 
these  courts,  and  by  giving  the  right  of  peremp- 
rory  challenge  to  a  limited  number  ot  the  panel. 
He   had  long  felt  the  necessity  of  the  right   of 
aeremptory  challenge  in   all   civil  and  criminal 
auses.     It  would  greatly  aid  in  the  due  and  pure 
administration  of  justice.     Since   he   had  taken 
tiis  seat  in  this  body  he  had  been  called  home  to 
re-try  a  civil  cause  in  a  court  of  record,  which  a 
second   time  resulted  in   a  disagreement  of  the 
jury.     The  cause  must  again  go   upon  the  calen- 
dar for  trial.     If  he  could  have  been  allowed  the 
right  of  peremptory  challenge  to  two  jurors  on 
either  trial,  he  could  have  obtained  a  verdict.    He 
commenced  and  went  through  this  trial  on  both 
occasions  with  a  full   conviction  of  what  would 
be  the  result,  but  could  not  avoid  going  through 
with    the    mockery    and    farce.     Another  great 
evil  that  disgraced   our  justices  courts,  and  in- 
deed all  others,  was  the  technical  nicety  required 
in  its  proceedings.     The  practice  in  that  humble 
court   was  too  much  entangled  by  the   nets  and 
mazes  of  form.    To  understand  correctly  its  practi- 
cal lorms  required  the  siuily  and  the  labor  of  \ears. 
It  had  all  the  ridiculous  fi-nns  ofnur  higher  courts 
of  record      It  required  more  or  tact  and  (alent  to 
piactice  auccessidtiy    in   that  court  than   in   the 
higher  courts.     An  error  in  (he  supreme  court   in 
practice  or  pleading  could  be  amended  on  motion, 
while  in  a  justices  court  the  same  error  would    be 
fatal  to  the  cause  of  the  client.     The   practice   o( 
all  our  com  (s  o«itjht  to  bu  simplified  and  rendered 
intelligible  to  all.     Tne  iviuile  train  ot  chicanery 
in  le^al  practice  ought  to  be  brushed  away  as  cob. 
webs,  by  the  broom  of  progress  and  legal   reform. 
Above  all  things,  in  this  humble  court  where   all 
men    are   compelled   to    seek   redress  for  petty 

65 


722 


wrongs,    the  road   10  right  and   justice  should    be 
plain    and    visible.      Its    foims   and  its    practice 
should  be  so  simple  that  "all  who  run  may  read, 
and  all  who  read  may  understand."     There    were 
other  evils  of  a  minor  character.     Bui  the  lemedy 
for  these  evils   incident  to  justices  courts,  ts    well 
as  the  duiyof  limiting  or  exieiidm*  their  jurisdic- 
tion   belongs  to  legislation  and  notto  this  Conven- 
tion!    It  is"our  duty  to  provide  tor  its  retention  as 
a  court      We  set  up  the  frame  work  ot  the  tribu- 
nal   and  leave  the  fitting  and  finishing  of  aij   us 
details  of  practice,  jurisdiction  and  powers  to  the 
legislature  that  shall   come  after    us.     There  was 
in   fact   but   little  propriety  in   discussing   these 
questions  in  this  body,  and  in  what  he  had  said  on 
this  subject  he  had  only  found    his  apology  in  the 
course  of  remark  pursued  by  gentlemen  who   had 
preceded  him  in  this  debate.     These  remarks    he- 
hoped    might  not   be   wholly  lost.     They   would 
serve  to  call   the  attention  of  succeeding   legisla- 
tures  to  those   works  of  reform  that  the    people 
expected  at  their  hands.     He  trusted  it  would  not 
provetobea"  hope  deferred."  Thereportot  theju- 
diciary  committee  makes  no  intermediate  court  be- 
tween the  justices  and  the  supreme  court;  and  he 
wouid  now  pass  to  a  consideiation  of  that  part  ot 
the  report  which  related  to  the  supreme  court,  and 
the  duties  imposed  upon  its  judges.  He  lelt  a  strong 
and 'anxious  desire   to   approve  everything   thai 
he  could  in  that  report.     It  was  the  result  of  the 
laborious  investigation  and   study  ot  a    numerous 
and  very  learned  comimilee.     He  fell  but  too  sen- 
sibly  his  own  inability  to  discuss  successfully  with 
them    the  merits  or  demerits  of  their  report.     He 
rejoiced   to  say  that    he  highly  approved  ot  their 
general    plan."   But.    he  felt  constrained   to. differ 
with  them  in  relation  to  the  ability  of  their  judges 
to   iH'iionn    the  duties   assigned    them,     lo  this 
tonic   and    the  remedy   10    be  applied,   he  should 
principally  confine  his   remarks.     By  this  report 
the  court  of  errors,  the  com t  of  chancery  and  the 
courts  ot  common  pleas  and  general  sessions,  are 
abolished.     Such,   if  not  in   terms,  is  the  fair •  m- 
tendrnent  of  the  report.     The  duties  of  all  these 
tribunals,  together  with  all  the  judicial  dutres  ot 
the  state,  ate  cast    upon  the  thirty-six  judges  re- 
commended  by  the   committee.     An  appeal  I  rum 
a  justices  court  must  go  up  to  the  circuit  for  trial. 
A  cerlioMii    from  the  same  couit  must  go  to  one 
ot  the  cou.-ts  in  bane  or  to  the  circuit    judge,  for 
reversal  or  affirmance.     In   addition  to  all  this,  it 
is   proposed  to  make  the   supreme  court  justices 
perform  the  duties   of  masters  and  examiners  in 
chancery      He  would  now  examine  for  a  few  mo- 
ments the  amount  of  business   thus  thrown  upon 
that  court,  and  see   what  time  and  labor  would  be 
required  to  perform  it.     Eight  of  your  judges  are 
set  apart  for  a  court  of  appeals.     They  are  to  per- 
form the  duties  now   assigned  to    the  court  ot  er 
rors      The  court   of  errors  was  usually  in  sessior 
a  iaJge  portion  of  the  year,  with  a  celendar  con- 
stantly accumulating  upon  them.     The   judges  o 
the  court  of  appeals  would  be  compelled  to  devot< 
their   whole   time    to    the    business   of  their  owi 
court.     The  remaining  twenty-eight  judges  rnus 
then  perform  the  duties  now  performed  by 

The  Supreme  Court  in  bane,  4  terms  4  weeks 

each, 

6  weeks  of  special  motion  terms,  « 

Chancellor's  general  and  special  terms,  say      24 


8  Vice  Chancellors  terms  at  least  4  weeks  each  3-2  " 
Vice  Chancellor's  special  motion  terms  2  weeks 

each,  16  " 

2  yearly  circuits  each,  in  69  counties,  118  " 

59  courts  Common  Picas  and  General  Sessions. 

4  weeks  to  each  county  yearly.  236  " 

The  duties  of  3o6  masters  and  examiners  in 

chancery,  say  4  weeks  each,  J  12-t      " 

1S72  weeks. 

Thus  we  have  1872  weeks  service  to  be  per- 
ormed  by  the  28  judges  not  occupied  in  the  court 
if  appeals.  He  felt  confident  that  his  computa- 
ion  of  time  was  too  small  rather  than  too  large. 
n  holding  the  terms  in  bane  the  time  is  allowed 
or  a  single  judge  only,  while  three  or  four  could 
lold  the  court.  To  perform  this  1872  weeks  la- 
or,  you  have  a  judicial  force  of  28.  If  you  di- 
ide  the  1872  weeks  labor  by  the  28  judges,  you 
rill  find  that  more  than  sixty-six  weeks  of  labor 
Nil]  be  yearly  required  of  every  single  individual 
udge  of  your  court.  In  other  words,  you  require 
hem  to  perform  yearly  416  weeks  of  labor  more 
han  their  whole  time  united.  No  allowance  is  here 
made  for  time  required  to  consider  or  digest  cases, 
r  draw  up  opinions  either  in  law  or  equity  cau- 
ses, decided  before  them.  The  herculean  labor 
hus  thrown  upon  this  court  appeared  to  his  judg- 
ment to  be  entirely  beyond  its  capacity  and  pow- 
ers. No  set  of  judges  could  ever  be  found  equal 
o  the  performance  of  their  vast  and  varied  du- 
ies.  Their  physical  ability  would  very  soon  sink 
under  the  weight  of  the  accumulated  load.  The 
_ittle  aid  that  the  judges  of  the  court  of  appeals 
could  bring  to  their  relief,  after  performing  the 
Business  of  their  own  court,  would  be  of  no  avail. 
There  was  not  enough  of  judicial  force.  Some 
court  must  be  devised  that  shall  perform  a  large 
amount  of  their  business.  Some  court  that  shall 
jring  real  aid,  substantial  relief,  to  the  judges  be- 
comes imperatively  necessary.  This  state  of 
things  seems  to  require  at  our  hands  the  construc- 
tion of  some  kind  of  a  county  court.  Our  county 
courts  have  become  objects  of  much  disfavor  in 
most  portions  of  the  state.  Why  is  it  that  these 
courts  are  in  such  bad  repute  ?  It  is  not  because 
their  jurisdiction  is  too  large  or  too  small.  The 
reason  is  most  obvious.  It  springs  from  the  mode 
of  appointment  of  the' judges,  their  pitiful  com- 
pensation, and  the  consequent  want  of  talent  and 
legal  learning  upon  the  bench.  We  cannot  ex- 
pect for  the  pittance  of  two  dollars  per  diem  for  a 
few  days  in  the  year,  to  employ  legal  science  in 
the  judicial  office.  Professional  men  who  are  ca- 
pable offulfilling  the  high  duties  of  the  station, 
cannot  afford  to  accept  it.  We  are  compelled  to 
take  men  for  the  bench  whose  only  recommenda- 
tion is  the  profundity  of  their  ignorance  of  the 
laws  of  the  land  and  the  practice  of  our  courts. — 
The  office  is  too  often  given  as  a  reward  for  po- 
titical  prostitution  to  those  individuals  upon  whom 
the  party  is  unwilling  to  throw  away  a  better  of- 
fice But  it  seems  to  be  now  conceded  that  we 
are  to  have  a  county  court  that  can  discharge 
some  of  the  duties  that  would  otherwise 
devolve  upon  your  supreme  or  circuit  courts.— 
The  more  difficult  question  to  decide  is,  how 
shall  that  court  be  constructed,  and  what  its  ju- 
risdiction and  powers?  Various  propositions 
are  before  us.  His  own  plan  for  the  construc- 
tion of  a  county  court  had  been  submitted  by  him 
with  great  diffidence.  He  did  not  submit  it  with- 


723 


out  the  approval  of  several   intelligent  members 
invention.     He  had  endeavored  to  con- 
rt  that  would  render  an  essential  ser- 
to  the  supreme  and  circuit  courts,    proposed 
e  committee — a  court   that  would   relieve 
courts  from  a  vast  amount  of  petty  and  vex- 
atious   litigation,  at  the   same  time  that  it  would 
:lio  people  comparatively  nothing.     It  was 
••!  upon  all  hands  that  the  duties  of  the  Sur- 

•  must  be  performed  by   a  local   officer. — 
]>y  tho  |>1. in  he  had  the  honor  to  submit,  a  single 
county  judge  was  to  be  elected,  who  was  to  per- 
form   the   duties   of  the  Surrogate,  and  to   hold 
the   county   court  for  the  trial  of  causes  brought 
up    from  justices'   courts.      He   would   also  re- 
quire  him   to  perform   the   special  duties   now 
imposed   by   law  upon   any   county  judge.     He 
proposed  to  give  that   county  judge  a  salary  suf- 
ficient to  insure  a  high  degree  of  talent  and  legal 
attainment   in   the  officer.     The  present  fees  of 
the  Surrogate,  and  the  ordinary  fees  of  the  county 
judge,  paid   into  the  treasury,  would  form  a  fund 
sufficient  for  his  salary.     No  new  burthen  would 
be   cast  upon  the   people   by   the    operation. — 
To  form  a  court   of  general   sessions,   he  added 
two  justices  of  the  peace  to  be  annually  selected 
by  the  boards  of  Supervisors.     This  mode  of  se- 
lection he   believed  to  be  preferable  to  any  other 
that  could  be  devised.     It  would  secure  the  best 
talent  that  the  county  afforded,  to  associate  with 
the  county  judge  for  the  trial  of  criminal  causes. 
It  would  secure  a  court  of  a  high  character  at  a 
trifling  expense  to  the  people.     He  proposed  to 
give  to  the  court  of  general  sessions  jurisdiction 
of  all   offences  not  punishable  by  imprisonment 
for  ten  years.     Such  is  the  plan,  as  the  gentleman 
from    Genesee  ssid,   "  that  the  gentleman  from 
CattaraugUb   has   seen   fit    to    introduce."     The 
learned  gentleman  from  Columbia  (Mr.  JORDAN) 
while  he   in  the  main  approved  this  plan,  seems 
to  think  that  appeals  are  an  evil,  and  that  to  lim- 
ited amounts  justices'  judgments  should  be  final 
and  conclusive  upon  the  facts.     That  would  be  a 
very  fruitful  source  of  injustice  and  oppression. 
The  strongest  security  that  the  people  now  have 
for  the  purity  of  these  tribunals,  is  to  be  found  in 
that  very  right  of  appeal  that  gives  a  new  trial  on 
the  facts  of  the  case.     It  gives  two  trials  by  jury, 
one  of  which  may  be  had  beyond   the  re'ach  of 
passion,  excitement  and  prejudice.     He  had  often 
seen  damages  remitted  to  a  sum  under  twenty-five 
dollars  to  avoid  new  trials  upon  the  merits.    Pet- 
ers arid  those  who  riled  up  and  perverted 

•  ure  streams  of  equity  and  law  in  justices' 
courts,  disliked  appeals.     Injustice  and  oppres- 
sion were  more  frequently  wrought  upon  a  small 

.  and  upon  the  poor.     He  was  therefore  dis- 

iv  •  the  right  of  appeal  in  all  its  force 

irenllernun   from    Herkimer 

LOOMIS)  thinks  th<;  ex-parte  allowance  of 

"vil.     We  allow  parties  to  commence 

MI  all  our  courts  without  oaths  or  bonds. — 

Hut  in  order  to  obtain  an  allowance  of  appeal,  the 

par'.-  '   forth  the  facts  of  his  case, 

as  pr  :<iavit,  and  show  under  oath  the 

grounds  of  his  appeal.     He  is  obliged  to  pay  the 

costs  beioru  the  justice  as  though  he  was  really 

in  the  wrong,  and  also  to  give  his  opponent  good 

and   suHk-.ieut.  security  to  pay  'all  damages  and 

that  may  be  recovered  against  him      So  far 


from  the  facility  afforded  for  appeals  being  an 
evil,  in  his  judgment  if  we  required  the  oath, 
the  bond,  and  the  payment  of  the  costs,  the 
appeal  should  be  without  ceremony,  a  mat- 
ter of  course,  and  of  right.  If  the  appellant 
tailed  in  his  cause,  the  payment  of  all  damages 
and  costs  was  a  sufficient  punishment  for  his  false 
clamor.  The  gentleman  from  Herkimer  proposes 
to  have  the  salary  of  the  county  judge  fixed  by 
the  several  boards  of  supervisors.  This  mode  of 
fixing  salaries  is  highly  objectionable.  You  would 
have  no  uniformity  of  compensation.  While  some 
counties  would  pay  him  well  and  liberally,  others 
would  give  him  but  a  meagre  pittance  Men  of 
the  proper  qualifications  would  be  unwilling  to 
accept  an  office  of  that  character,  if  its  salary  de- 
pended upon  the  supervisors.  The  supervisors 
were  men  generally  ambitious  of  saving  (he  money 
of  the  people.  Political  feeling  and  personal 
friendship  or  animosity  would  have  too  much  to 
do  in  fixing  the  amount  of  salary.  The  salaries 
oir^ht  to  be  fixed,  permanent  and  uniform,  by  the 
legislature.  They  ought  to  be  paid  from  the  state 
and  not  the  counly  treasury.  The  slate  ought  to 
furnish  to  the  whole  people  a  cheap  and  easy  road 
to  justice.  The  gentleman  from  Herkimer  objects 
to  the  plan  introduced  by  him,  (Mr.  C.)  because 
it  gives  too  great  criminal  -jurisdiction.  His  first 
objection  is  made  in  behalt  of  the  accused,  and 
secondly,  because  it  will  require  a  jury  and  all  the 
paraphernalia  of  a  court.  To  all  this  he  would  reply 
thai  his  own  mind  had  been  in  some  doubt  as  to  the 
extent  of  the  powers  to  he  given  to  it.  When  he 
drew  up  his  plan  he  gave  the  court  much  less  of  cri- 
minal jurisdiction.  He  had  changed  it  at  the  sug- 
gestion of  a  gentleman  of  great  learning  and  expe- 
rience. Our  present  courts  of  general  sessions  had 
jurisdiction  when  the  punishment  was  less  than 
imprisonment  for  life.  Its  jurisdiction  was  far  less 
than  our  present  county  courts.  The  accused  need 
riot  be  tried  in  it  if  he  chose  to  go  into  the  over 
and  terminer  for  trial.  He  could  at  any  time  sue 
out  a  writ  of  certiorari  and  remove  his  cause  out 
of  the  court  of  general  sessions  if  he  pleased.  He 
could  do  it  without  expense,  as  we  are  to  abolish 
the  fees  of  judicial  officers.  He  had  then  his 
choice  of  either  court  as  suited  his  fancy.'  If  it 
was  intended  to  form  a  county  court  that  should 
operate  to  aid  the  justices  of  the  supreme  court, 
a  jury  was  indispensable.  You  might  do  without 
a  grand  jury  by  having  all  your  indictments  found 
in  the  oyer  and  terminer  and  sent  into  the  gene- 
ral sessions  for  trial.  But  without  a  jury  you 
could  try  no  yssue  of  fact.  Your  court  would  have 
but  little  power,  and  could  render  but  very  little 
service.  The  gentleman  from  Herkimer  also  ob- 
jects to  the  plan  because  it  fixed  a  limit  to  one 
judge.  If  his  objection  arises  from  the  fact  that 
the  "court  is  held  by  one  judge,  the  same  objection 
is  equally  good  against  the  lour  thousand  justices, 
who  have  original  jurisdiction  to  as  great  an  a- 
rnount  as  the  county  judge  has  merely  appellate. 
You  will  secure  afar  better  officer  by  having  but 
one  to  pay,  than  you  will  ifyou  increase  the  num- 
ber. -The  more  you  add  to  the  number  of  judges 
upon  the  county  bench,  the  more  you  dissipate 
and  weaken  the  strength,  intelligence  and  effic- 
iency of  the  court.  You  increase  the  expense 
and  get  no  corresponding  benefit  secured.  He 
was  fully  and  deeply  impressed  with  the  convic- 


724 


tion  that  some  kind  of  a  county  court  was  neces- 
sary to  perform  the  business  of  a  minor  kind  and 
character.  In  some  of  the  counties  it  would  be 
necessary  to  hare  some  court  almost  constantly 
in  session.  Bat  he  assured  the  Convention  that 
he  had  no  strong  partialities  for  this  "  pet  child" 
of  his  own.  He  had  attempted  only  to  construct 
a  county  court  out  of  few  and  simple  materials 
that  would  cost  the  people  but  little.  He  had  en- 
deavored to  make  it  respectable  and  to  give  it  ef- 
ficiency. If  gentlemen  offered  substantial  im- 
provements, no  member  of  the  body  would  be 
fiiore  ready  to  adopt  their  amendments  than  him- 
self. If  any  better  or  more  simple  or  efficient 
plan  was  offered,  he  was  ready  to  abandon  his 
own  and  support  the  belter  proposition.  He  had 
no  p/ide  of  opinion.  If  he  knew  his  own  soul, 
he  was  only  arxious  to  perfect  a  judiciary  system, 
that,  freed  from  the  subtleties  and  technical  ni- 
ceties of  legal  practice,  should  hereafter  be  the 
pride  and  glory  of  the  state,  and  a  lasting  honor 
to  this  Convention. 

Mr.  BASCOM  felt  bound,  in  the  remarks  he 
was  about  to  make,  in  consideration  of  the  res 
olution  adopted  this  morning,  to  confine  himself 
to  the  questioa  directly  before  the  committee, 
upon  the  motion  of  the  gentleman  from  New 
York  to  amend  the  third  section.  He  went  on 
to  state  his  objeetion  to  the  erection  of  common 
pleas  courts.  In  the  first  place  the  business 
which  once  made  them  necessary  was  gone,  it 
did  not  exist  in  any  court  whatever.  Again, 
the  confidence  of  the  people  in  those  courts  had 
been  in  a  great  degree  lost.  The  influence  of 
education  and  the  promulgation  of  religious  prin- 
ciples had  not  made  the  people  more  quarrelsome, 
but  had  rather  tended  to  modify  and  moderate 
such  elements  in  society.  He  replied  to  state- 
ments made  by  Mr.  STETSON.  It  was  very  ques- 
tionable whether,  if  these  common  pleas  courts 
were  continued,  they  would  not,  in  the  blunders 
and  errors  which  they  would  commit,  make 
more  business  for  the  supreme  court  in  correct- 
ing them;  and  it  was  the  design  of  most  of  the 
gentlemen  who  had  spoken,  to  get  rid  of  the 
great  number  of  appeals  and  certioraris  now  ex- 
isting, by  the  adoption  of  some  other  plan.  He 
then  went  on  to  review  the  expenses  of  the  coun- 
ty court,  as  set  down  in  the  returns  made  to  the 
Convention,  comparing  them  with  the  amount  of 
judgments  rendered.  TKe  great  deparity  in  the 
two  items  conclusively  proved  that  the  business 
which  formerly  went  into  those  courts  was  now 
gone;  and  they  existed  in  no  tribunal.  ;  The 
arguments  deduced  from  precedent  were  of  no 
force  under  these  circumstances.  He  could  not 
consent  to  have  thirty-two  Supreme  court  judges 
appointed,  and  then  to  go  on  and  set  up  59  courts 
of  inferior  jurisdiction,  in  order  that  the  latter 
might  furnish  business  for  the  former  in  cor- 
recting the  blunders  made.  He  did  not  agree  to 
the  wisdom  of  establishing  one  great  overshad- 
owing court,  for  the  transaction  of  the  greater 
matters  of  justice,  and  having  some  smaller 
courts  in  which  the  business  of  a  less  important 
character  should  be  disposed  of.  Such  a  plan 
might  be  illustrated.  Gentlemen  had  urged  pre- 
cedents instead  of  argument — precedent  was  al- 
ways appealed  to  against  any  change  that  might 
be  proposed— he  begged  to  furnish  gentlemen 


with  one  precedent,  immortalized  by  poetry,  that 
had  not  been  used  : 

•Southampton's  wise  folks  found  the  river  so  lar" e, 
It  would  carry  a  ship  but  would  not  a  barcej 
But  soon  the  detect  their  wise  noddles  supplied, 
They  dug  a  snug  ditch  to  run  close  by  its  side. 
Like  the  man  with  two  cats,  the  one  great,  t'other  smalJ, 
For  which  he  made  holes  to  pass  through  the  wall; 
He  made  a  large  hole  lor  great  puss  to  pass  through, 
And  he  made  a  small  hole  for  liis  little  cat  too." 

He  drew  a  parallel  between  the  costs  of  the  cir- 
cuit court  system  and  that  of  the  common  pleas, 
and  found  by  actual  computation  that  the  people 
were  obliged  to  pay  $39  for  every  civil  cause 
tried  by  the  circuit  judges,  while  in  the  common 
pleas  they  had  to  pay  $170  for  every  such  suit ;. 
and  this  was  something  like  the  comparative  dif- 
ference between  the  two  systems.  He  believed 
that  much  of  the  powers  given  to  the  common 
pleas  judges  over4ocal  matters,  which  were  now 
thrown  into  that  court  as  a  common  reservoir,, 
might  be  given  to  the  board  of  supervisors,  or  the 
surrogate,  or  the  supreme  court  judge.  He  then 
went  on  to  speak  of  the  expenses  of  these  courts  f 
and  said  that  the  people,  having  examined  the 
subject,  would  not  consent  to  its  continuance. — 
But  if  it  was  the  intention  of  gentlemen  to  esta- 
blish these  inferior  courts,  he  should  give  up  hi» 
proposition  to  make  thirty-two  judges  of  the  su- 
preme court.  It  would  not  do  to  spread  out  this 
system  to  such  an  extent  as  it  would  be  carried, 
by  making  so  large  and  extensive  a  supreme 
court,  and  then  establish  these  numerous  local 
tribunals.  Nor  would  he  leave  it  to  the  legisla- 
ture, nor  allow  them  the  privilege  of  establishing 
such  inferior  courts;  because  it  would  impose 
upon  those  who  were  in  favor  of  few  and  inex- 
pensive courts  the  necessity  of  constantly  stand- 
ing guard  against  its  increase.  So  far  as  to  the 
reorganization  or  improvement  of  the  justices' 
courts,  he  did  not  believe  that  it  came  under  the 
duties  of  this  convention  to  perform  any  such 
work.  It  would  not  do  to  double  the  force  of  the 
superior  courts  and  continue  the  unnecessary  and 
expensive  county  tribunals.  The  expenses  paid 
by  taxation  were  but  a  small  portion  of  the  costs 
of  these  courts  to  the  community.  The  hundreds 
of  men  that  as  jurors  and  witnesses  and  suitors,, 
were  compelled  to  wait  their  turn  at  these 
dilatory  courts  should  be  taken  into  the  account. 
Provide  for  saving  this  to  the  people,  and  you 
will  save  enough  to  provide  liberal  salaries  for 
your  supreme  court  judges,  and  to  endow  two  or 
three  colleges,  if  that  were  desirable  or  proper. 
Mi.  S'l  LT^GN  \.ished  lo  comci  some  of  the 
«taiistics  he  presented  to  flu- Cunventi  n  the  other 
daj,  in  regard  to  the  number  of  uppevils  and  cer- 
tk'ians  tioin  jus- ice.-' courts.  Referring  ajsu  to 
the  calculations  made  bv  other  gentlemen  from 
the  returns  received  by  (he  Convention  as  to  the 
expei  ses  ol  count}  courts,  he  pointed  out  wherein 
he  considered  them  to  be  in  error — no  allowance 
was  n:ade  lor  the  tines  received — which  in  the  ag- 
gregate were  often  very  large.  He  was  not  op- 
posed lo  this  transfer  of  jui isdiction  from  the 
common  pleas  to  the  Supitnie  Court,  but  theie 
was  wuthoriij'  over  local  milters  which  had  to  he 
vested  soinewheie. 

ivii    bTUW  lose  to  call  attention  to  the  fact  that 
nasmuch  as  we  nfl>*t  ncces>ari'ly  have  a  judiciary 
,  v, e  should,  while  we  take  (art  to  make  it 


725 


what  it  should  be  as  States  riyht  men,  and  men 
proud  of  the  state,  make  ovir  court  so  lar  prefera- 
ble to  the  U.  S.  States  Court,  as  not  to  drive  suiiors 
into  these  courts  rather  than  our  sfate  coin-is.— - 
Such  was  the  case  now  in  Illinois.  In  reference 
to  what  had  been  aaid  by  the  gentleman  from  0  - 
sego,  he  denied  that  he  was  opposed  to  reform  and 
alteration  in  the  practice  anc]  proceedings  in  the 
courts.  On  the  contrary  he  considered  that  what- 
ever might  be  done  here,  no  judicial  reform, 
would  have  been  procured  without  some  provison 
lor  a  reform  in  that  particular. 

Mr.  CHATFIKLD  explained.  He  had  contend- 
ed that  as  long  as  the  separate  jurisdictions  were 
kept  up,  and  the  courts  were  organized  as  they 
now  are,  all  hopes  of  reform  were  idle.  The  gen- 
tleman had  advocated  the  proposition  which  lead 
to  this  conclusion. 

Mr.  S  TOW  said  that  was  a  mere  matter  of  dif- 
ference of  opinion.  But  he  insisted  that  so  far  as 
he  was  concerned,  his  course  in  the  Convention 
was  evidence  that  he  was  an  advocate  of  legal  re- 
form to  (he  fulfbst  extent. 

Mr.  SIMMONS  preferred  the  provision  of  the 
committee  to  any  plan  proposed  here.  If  the 
Convention  adopted  his  plan,to  have  twelve  judges 
of  general  territorial  jurisdiction  throughout  the 
State,  he  would  prefer  it,  but  if  they  did  not,  he 
would  then  adopt  that  of  the  committee.  It  re- 
quired the  exercise  of  considerable  self  denial  on 
his  part  to  avoid  speaking  with  something  like 
contempt  of  the  many  plans  for  county  courts  he 
had  seen  proposed  here.  He  considered  the  plan 
of  Mr.  CROOKER  to'be  merely  a  little  court  for 
the  correction  of  errors  in  justices  courts.  In 
fact  it  was  an  appeal  system  from  one  man  to  an- 
other man,  and  he  having  perhaps  less  practical 
knov/ledge  and  experience  than  the  one  whose 
decisions  he  was  to  review.  Mr.  S  urged  that 
the  whole  popular  branch  of  this  or  any  other 
system,  should  be  left  to  the  legislature.  Be- 
sides if  this  little  court  of  errors  was  to  be  alter- 
nate in  its  decisions,  it  would  leave  us  with  two 
distinct  systems  of  jurisprudence — the  one  of  com- 
mon sense,  and  the  other  the  learned  or  profession- 
al  system,  and  no  communication  between  them. 
Mr.  S.  in  conclusion,  said  that  he  had  a  strong 
impression  that  the  plan  of  the  judiciary  commit- 
tee which  left  the  matter  to  the  legislature,  was 
sufficient  and  would  work  well. 

AFTERNOON  SESSION. 

Mr.  MARVIN  said  that  having  the  other  day 
given  his  views  at  considerable  length,  on  this 
subject,  and  having  discovered  since,  as  he 
thought  an  inclination  on  the  part  of  the  Conven- 
tion, to  adopt  substantially  the  plan  of  the  judi- 
ciary committee,  he  had  made  up  his  mind  to 
take  no  further  part  in  the  debate  until  we  come 
to  the  business  of  perfecting  it,  when  he  intend- 
ed to  render  what  aid  he  could  in  making  it  as 
little  objectionable  as  possible,  consistently  with 
the  general  plan  marked  out  by  the  committee. — 
But  us  he  and  those  who  thought  with  him,  had 
been  referred  too,  and  particularly  by  the  gentle- 
man from  Otsego,  (Mr.  CHATFIELD)  as  opposed 
to  reform,  he  was  desirous  of  obtaining  the  floor 
when  that  gentleman  concluded  his  remarks.with 
a  view  of  stating  broadly,  that  the  plan  for  the  re- 
organization of  the  courts  which  he  had  the  hon- 


or of  submitting,  in  his  judgment  contained  more 
thorough,  radical,  practicable  and  useful  reform, 
than  any  other  that  had  been  submitted.  Why 
charge  him  then  with  opposing  reform.  A  man 
brought  up  at  the  tail  of  the  plow,  who  had  al- 
ways lived  in  the  country  with  and  among  the 
people,  who  had  often  honored  him  with  their 
confidence,  remote  from  cities  and  their  influen- 
ces, who  during  a  long  practice  had  aided  in  set- 
tling more  controversies  among  his  neighbors  and 
friends,  than  he  had  ever  brought  into  court — who 
never  sued  out  a  writ  or  error — that  he  should  be 
charged  with  opposing  reform  and  desiring  to 
foster  litigation,  because  he  stood  up  against  hav- 
ing the  rights  of  the  citizen  in  the  hands  of  any 
one  man  without  the  right  of  appeal.  [Mr.  CHAT- 
FIELD  explained,  he  had  spoken  of  the  effects  of 
•the  gentleman's  plan,  and  of  what  he  regarded  as 
inseparable  from  it,  not  of  any  sentiment  the  gen- 
tleman, (Mr.  M.)  had  avowed  here.] 

Mr.  MARVIN  was  glad  the  gentleman  had  made 
the  explanation.  J  t  was  then  after  all  a  matter  of 
opinion  which  plan  was  most  conducive  to  re- 
form. In  his  (Mr.  M.'s)  opinion  the  judiciary 
system  reported  by  the  committee  and  defended 
by  the  gentleman  from  Otsego  (Mr.  CHATFIELD) 
was  incapable  of  producing  the  reforms  desired.- 
It  struck  him  at  first  that  the  plan  of  the  commit- 
tee was  complicated — difficult  in  practice,  and 
necessarily  involving  a  continuance  of  the  evils 
which  all  desired  to  get  rid  of. 

He  laid  it  down  as  a  first  principle  in  a  country 
of  laws  as  ours  was,  that  the  citizen  should  be 
furnished  with  convenient  and  competent  tribu- 
nals for  the  redress  of  grievances ;  that  there 
should  be  judicial  force  enough  provided  for  the 
speedy  administration  of  justice  so  that  no  man 
should  be  long  kept  from  the  enjoyment  of  all  his 
rights;  that  justice  should  be  administered  io  every 
citizen,  who  was  compelled  to  resort  to  our  courts, 
at  a  moderate  and  reasonable  expense;  and  would 
not  the  accomplishment  of  these  objects  effectuate 
a  great  reform  ?  He  had  expressed  a  decided 
opinion  that  these  reforms  could  be  better  effected 
by  preserving  the  separate  jurisdiction  of  the  courts 
ot  law  and  equity,  expressly  on  the  ground  that  it 
would  result  JD  a  saving  of  time  and  expense,  and 
require  less  judicial  lorce  to  do  all  the  business. 
He  desired  great  reforms  in  the  proceedings  in  the 
court  of  chancer)  ;  his  position  was  that  a  large 
portion  of  the  business  now  done  in  that  court 
should  never  have  gone  there  ;  and  hdd  the  legis- 
lature provided  for  its  transfer  to  the  law  courts, 
the  court  of  chancery  would  not  have  been  over- 
whelmed as  it  was;  that  the  forms  usi-d  in  that 
com  i  were  too  long  and  cumbrous,  and  should  be 
simplified  and  abreviated.  li  hud  been  dt  to  u.ined 
to  unite  the  two  jurisdictions  in  the  same  court. 
Me  submitted  to  the  decision,  arid  should  not  re- 
debate  the  question.  Time  would  show  whether 
this  decision  was  productive  of  rtal,  substantial 
reform,  or  whether  it  was  only  a  change.  He 
could  not  help  thinking  that  if  this  iquny  busi- 
ness was  brought  into  this  single  court,  it  would 
be  broke  down  ;  not  lor  want  of  numerical  force, 
hut  on  account  ol  the  otgainzalion  of  the  couit, 
and  the  manner  in  which  the  business  was  to  be 
done.  And  Mr.  M  went  into  the  details  of  the 
working  ol  this,  insisting  that  it  would  not  work 
well, especially  in  the  equity  business  of  the  court, 


7:26 


and  must  involve  the  suitors  in  much  greater  ex- 
pens-  and  delays  than  the  plan  he  proposed.  He 
urged  lujthei  Ui-.it  the  svsf em  would  invite  con- 
stant appeals,  which  would  overwhelm  the  court 
of  last  resort.  He  urged  that  there  would  be 
conflicting  opinions  cons'-amly  in  these  courts 
sitting  in  bane,  as  the  supreme  court,  so  called, 
owing  to  the  number  or  tins.;  courts  in  bane,  and 
the  constant  changes  ot  the  judges  who  held  them. 
He  would  suppose  that  he  h;id  tried  three  causea 
at  the  Cnautauque  circuit,  all  of  them  involving 
the  same  principles,  an!  at  the  same  circuit  deci- 
ded the  same  way.  Suppose  thai  cases  are  made 
in  all  of  them,  and  tlu-y  are  carried  to  the  court 
in  bane  fora  leviewot  the  decision  at  the  circuit. 
The  court  holds  a  term  t?t  Buffalo,  and  judges  A. 
B.  and  C.  constitute  the  court.  His  three  causes 
were  all  on  the  calendar.  One  of  them  was 
reached  and  argued  and  decided  by  A.  and  B.,  a 
majority  of  the  court,  C.  dissenting,  the  other  two 
causes  noi  reached.  The  next  month,  this  su- 
preme court, so  called,  holds  a  term  at  Rochester, 
and  judges  B.  C.  and  D.  compose  the  court,  A 
having  gone  to  hold  a  circuit  or  to  compose  a  part 
of  a  court  in  bane  somewhere  el»e  ;  lie  attended 
the  term  at  Rochester,  argued  his  second  cause, 
and  D.,  now  agreeing  with  C.,  (hey  overrule  B., 
and  make  a  decision  exactly  the  reverse  of 'he  de 
cision  made  at  Buffalo.  The  thud  cause  \et  re- 
mained undisposed  of,  and  he  attended  this  su- 
preme court,  so  called,  at  its  session  in  bane,  at 
Ithaca,  and  here  he  found  judges  D  E.  and  F. — 
He  stated  his  cause  arid  made  the  btst  argument 
he  could,  when  judges  E.  and  F.  told  him  that 
b  ;th  the  decisions  made  at  Buii'Jo  and  Rochester, 
were  wrong,  and  they  made  an  entirely  new  one, 
and  laid  down  a  new  set  oi  principles  And  ihus 
you  may  go  through  with  these  thirty-two  judges, 
any  three  of  whom  may  hold  bane  lerms,  and  now 
many  different  coui  ;s  could  be  made  by  the  differ- 
ent combinations  of  these  thirty- two  judges,  he 
should  noi  stop  lo  enquire.  But  wh  t  would  be 
the  result  of  these  conflicting  decisions  ?  Why, 
the  cases  would  all  be  appealed — nothing  had 
been  settled. 

Mr.  BROWN  remarked  that  such  a  case  was 
within  the  range  of  possibility,  but  were  it  to  oc- 
cur the  gentleman  at  Rochester  would  very  na- 
turally suggest  to  the  court  the  fact  of  the  decisioi 
at  Buffalo,  and  tiie  judges  at  Rochester  woulc 
probably  follow  their  decision  or  being  hones 
and  intelligent  men  might  reserve  the  case  fo 
consultation. 

Mr.  MARVIN  insisted  that  each  judge  as  an 
honest  man  would  be  bound  to  decide  the  law  as 
he  believed  it  to  be,  without  regard  to  the  opinioi 
of  any  other  judge  of  the  same  court 

Mr.  CHATFiELD:  How  would  it  be  with  tit- 
ty-nine courts  ot  common  pleas,  would  not  thei 
decisions  conflict  ? 

Mr.  MARVIN  said  certainly  they  would  an< 
did  conflict,  but  not  often,  as  tiiey  looked  con 
stantly  to  the  supreme  court  for  the  law, and  wer 
bound  by  the  decisions  of  that  court.  They  al 
looked  to  a  common  source.  And  when  the  su 
preme  court  as  now  constituted,  \*\\\«  but  on 
court  composed  ot  the  same  judges  ail  the  time 
decided  a  question  coming  from  any  one  of  th 
courts  of  common  pleas  in  the  State,  it  became  th 
law  of  »all  the  courts,  anil  hence -their  decisioi 


vere  kept  remarkably  uniform;  but  the  supreme 
ourt,  so  called  of  the  comnnt'ee,  was  no  supieme 
ourt  in  the  proper  sense  of  ihe  ierm;  but  a  mul- 
plicity  of  courts  whose  decisions  are  not  binding 
pon  each  other,  and  hence  you  are  to  go  lo  the 
ourt  of  last  resent  to  procure  unifoimity,  and 
o  find  what  we  now  have  in  our  present  supreme 
ourt;  and  this  was  just  what  he  had  been  main- 
aining  all  the  time,  and  that  such  a  system  would 
nd  in  throwing  upon  this  court  of  last  resort  an 
mount  of  business  it  could  never  do. 

If  it  was  objected  to  his  plan  of  the  county 
ourts,  that  there  were  too  many  appeals,  the 
ame  objection  lies  to  the  plan  of  the  committee, 
s  they  are  precisely  the  same.  You  carry  the 
.ecision  of  the  judge  made  at  the  circuit  to  one 
if  these  numerous  courts  in  bane,  called  the  Su- 
n-erne Court,  and  then  to  the  court  of  appeals. —  s 
Jnder  the  county  court  system,  you  carry  the 
,ause  to  the  supreme  court,  and  then,  if  necessa- 
y,  to  the  court  of  appeals.  But  there  was  this 
fifference  in  his  favor.  The  coijrt  of  common 
>leas,  being  a  court  of  original  jurisdiction,  could 
,-rant  relief  on  the  spot  with  little  cost,  or  trouble 
o  the  parties,  without  going  out  of  the  county. 
He  had  known,  in  Pennsylvania,  the  attorney  to 
>resent,  at  the  same  court  the  cause  was  tried, 
iis  "  grounds  for  a  new  trial,"  which  simply 
itated  ihe  points,  and  were  usually  on  less  than 
lalf  a  sheet  of  paper,  and  proceed  without  mak- 
ng  up  any  case,  the  facts  being  all  fresh  in  the 
nind  of  the  judge,  to  argue  the  motion  for  a  new 
rial,  arid  if  the  judge  was  satisfied  that  error  had 
been  committed,  either  by  himself  or  the  jury,  he 
granted  relief  on  the  spot,  by  granting  a  new  trial 
without  cost  or  expense  to  the  parties.  But  un- 
ler  the  plan  of  the  committeee,  a  long  case  of 
;he  facts  must  be  made  up,  and  the  cause  must 
je  carried  before  the  court  in  bane  some  months 
after,  copies  of  the  case  furnished  to  each  judge, 
and  counsel  must  be  employed,  and  all  this  in- 
volved great  expense  to  procure  a  correction  of 
the  error  committed  by  the  judge  in  the  hearing 
of  the  trial. 

Now,  sir,  who  is  the  practical  reformer,  he 
who  would  provide  for  each  county  a  court  with 
a  judge  sitting  in  it  as  competent  as  any  in  the 
state,  having  the  power  to  correct  errors  without 
cost  to  the  suitors,  or  he  who  would  deprive  the 
people  of  such  a  court  and  compel  them  TO  resort 
to  one,  where  these  great  expenses  and  delays,  so 
rauch  talked  about,  must  be  incurred  ?  Let  it  be 
borne  in  mind  that  the  courts  of  common  pleas 
he  advocated  were  vastly  superior  to  the  present 
county  courts,  and  still  more  economical,  as  a 
system.  He  would  have  a  president  judge  for 
four  and  five  counties,  a  first*  rate  man,  and  pay 
him  a  liberal  salary,  so  as  to  command  the  best 
talent,  and  keep  him  constantly  employed.  Let 
him  be  a  working  man,  and  he  would  make  a 
better  judge.  He  did  not  advocate  the  present 
system  of  county  courts,  with  five  judges  in  each 
county,  many  of  them  incompetent,  and  so  little 
employed  that  they  often  felt  embarrassed,  and 
made  slow  progress  with  the  business.  There 
were  other  considerations  having  great  \v 
with  him  in  favor  of  preserving  the  county  court 
organization,  as  connected  with  the  reforms  which 
he° desired  to  see  effected.  He  could  see  no  good 
reason  why  the  supreme  court  clerks'  orficea 


'27 


itiivly  dispensed  wiih^und  thus 

limn  ihe  suitois.    lie  would 

;:11  the  papers  lilcd  in   the  clertrs  office  of 

the   county  whrrr  the  venue  was    laid,  ami   the 

ted    there.      NO   Confi 

- 
thai  no  jud  en  in  any  county 

...t    of  the  docket  of  the  jir.i. 
Ued  in  the  office  of  tli::  clerk  of  the  county, 
and  the  judgment  there  docketed,  and  also  allow- 
transcriptof  the  docket  of  a  judgment  in 
•  untv  court  to  be  sent  into  any  other  county. 
followed  by  an  execution.     These  were  va- 
luable reforms.     And   under   this   system   there 
10  dilliculty  in  abolishing  the  supreme 
court  clerks'  oitices.     Would  not  this  be  a  great 
reform  ?  and  would  it  not  save  large  expenses  ? 

Mr.  LOOMiS  said  it  was  no  pare  of  ll.e  plan  ol 
the  eimimitee  to  have  (lie  Supreme  Court  clerk's 
offices. 

Mr.  MARVIN  said,  true,  there  is  nothing  said 
in  the  lep  Hi  anmit  them,  but  the  gentleman  from 
Columbia  (Mr.  JORDAN)  the  other  clay,  in  givin- 
the  de  ails  of  the  system,  and  ihe  mode  of  doing 
business  told  us,  that  there  were  to  be  eight  Su 
preme  court  clerk's  offices  in  eight  dinVuat  purls 
of  tne  stale,  ;;!id  everybody  could  see  that  (bat  was 
intendec;  of  couise  tiie  records  ot  the  court  were 
to  be  kept  there,  and  whenever  a  ivco.d  was 
needed  at  the  circuit,  the  parly  must  be  at  the 
expense  of  getting  an  exemplified  copy  of  it,  in- 
volving considerable  expense.  \Vbt-reas,  if  the 
record  was  in  the  county  where  the  cause  arose, 
anil  where  it  was  tried,  as  it  always  would  be  un- 
der  Hie  reform  he  proposed,  it  would  be  always 
in  any  subsequent  litigation,  and 
coidd  be  kou-htinto  court  from  the  clerk's  ol- 
id nst-d  in  evidence  without  one  cent's  ex- 
pense. This,  he  thought,  would  he  a  saving  ol 
expense  and  a  valuable  reform. 

lie  proceeded  TO  show  how  his  system  would 
vf.-.i:<  m  N-'W  Yoik,  dispensing  with  aH their  pre- 
sent courts  of  record,  and  substituting  the  court  ot 


common  pleas  with  a  president 


and  as  ma- 


;iate  judges  as  Should  be  necessd%   to   d 

the    ou-iti.  ss,    permittina;   each    judge  to    try   al 
issues   of  fact,  and  three  of  tnetn    to  constt'ite 
court  in  bane  tc  hear  law  arguments.     Thus    th 
couit  could  be  enlarged  in    accordance    wilh   the 


wants  of  the  city,  and  yet.  there  would  be  but  one 
court,  one  clerk's  oilice,  where  all  records  wouh 
be  kept,  and  where  a  man  could  go  himself  au> 
tain  as  to  all  liens,  and  one  practice  simila 
throughout  the  state.  He  submitted  that  tni? 
and  woul.l  avoit 


IITS  that  might  be  thus  transferred,  still  there  will 

:>le  business  lhat  must  be  done  on  the 

equity  side  of  the  calendar.     What  he  claimed 

was  that  under    his  system,  giving   the   people  a 

with  equity  powers,  to  hear,  try  and 

.,1.  home,  he    provided  the 

c/tt'ajicfit,  most  feasible  and expeditidus mode  that 
had  been  surest  ed,  and  in  these  respects,  lit;  be- 
lieved, if  he  understood  the  workings  of  the  sys 
ems  proposed,    his  contemplated  and  would  ef- 
ect  more  thorough  and  practical  reform  than  any 
:'them.       Ivlr.  M.  proceeded  to  explain  his  sys- 
em  of  the   supreme   court,   composed   of  nine 
udges  only,  instead  of  thirty-two,  and  divided  in 
Is    bane,  session  into  two  parts,  instead  of  into 
ight,  and  with  a  fair  prospect  of  bringing  it  all 
ogether  in  a  few  years ;   certainly  so  if  his  friend 
rom  Erie  (Mr.  Stow)  was  right  in  his  opinion, 
nd  he,  Mr.  M.  believed  he  was. 
Mr.  M.  proceeded  to  show  how  his  plan  of  county 
ourts  could  now  be   engrafted  on  to   the  plan  of 
he  committee,  notwithstanding  the  union  of  law 
nd    equity  in    the   same  court,   by  reducing  the 
hirty-two  judges   to   sixteen   and   the   districts 
rom  eight  to  four.     This  would  in  his  opinion  be 
valuable  improvement.     He   had  risen  mainly 
o  satisfy  the  gentleman  from  Otsego  (Mr.  CHAT- 
FIELD)  that  the  system  he  had  submitted  contain- 
d  and  contemplated  great  reforms  and  which  he 
/vas  willing  to  contrast  with  any  other  plan,  and 
also  to  satisfy  him  (Mr.  C.)  that  he  i^Mr.  M.)  was 
lot  opposed  to   reform;  but  it  must  be  borne  in 
mind   that  all  change  is  not  reform,  and  every 
man,   when  a   change  is  proposed   to  him,  must 
udge  honestly  for  himself  whether  it  be  for  the 
)etter  or  the  worse,  and  if  he  judge  it  to  be  for 
;he  better,  he  should  still  anxiously  enquire  whe- 
:her  something  still   better  could  not  be  devised, 
and  he  must  avail  himself  of  all  the  knowledge 
md   experience   he  possesses  and  then  make  an 
lonest  decision. 

He  proceeded  to  examine  briefly  the  plan  for  a 
county  court  submitted  by  his  friend  from  Catta- 
raugus  (Mr.  CROOKER,)  and  remarked  that  he 
:hought  if  they  had  any  county  court  they  better 
have  a  good  one  in  which  the  business  of  the  peo- 
ple could  be  well  done.  Either  have  a  good  one 
with  sufficient  jurisdiction  and  an  able  judge,  or 
otherwise  a  new  county  court,  to  transact  the  mis- 
cellaneous business  of  the  county,  and  hear  per- 
haps, certioraris  from  justices  courts,  but  do  not 
allow  it  to  have  a  jury,  and  sheriff,  and  constables, 
and  all  the  parapharnalia  of  a  court.  He  appn- 
hcnded  that  it  would  not  secure  the  confidence  of 


would  make  a  very  able  court 

the  contusion  arising   from  so   many   courts,   am 

would  be  a  great  reform. 

It  was  well  known  that  he  was  one  of  those 
who  believed  that,  as  a  matter  of  economy,  tin 
saving  of  time,  and  the  diminution  of  the  arnoun 
of  force  to  the  employed,  the  equity  and  law  prac 
tier  should  not  be  united  in  the  same  court.  The 
convention  had  decided  otherwise,  and  he  cheer 
full1.  d;  but  it  would  be  borne  in  mine 

that  in-  contemp  -I  thorough  reform  ii 

the  whole  procedure  in  the  court  of  Chancery 
He  proposed  to  transfer  a  lar^o  portion  of  thebu 
siness  nov\  dour  in  that  court  to  the  law  courts — 
all  in  fact,  that  could  be  conveniently  done  there 
and  Mr.  M.  proceeded  to  specify  numerous  mat 


the  people,  and  yet  that  it  would  be  expensive 
and  vexatious  to  the  county  by  calling  out  jurors 
to  attend  its  terms,  for  the  criminal  busi 

In  relation  to  justices  courts,  he  should  not  op- 
pose any  reforms,  but  he  was  very  well  satislicd 
with  them  as  they  were  and  there  was  some  dan- 
ger of  spoiling  a  good  thing.  They  had  better  \te 
left  to  the  legislature, which  had  the  power  to  in- 
•  their  jurisdiction  and  mould  (hem  in  such 
mann  •  from  time  to  time  be  thought 

He  doubted  the  propriety  of  extending 
their  jurisdiction.  Mr.  M.  closed  with  some  re- 
marks having  reference  to  allusions  which  hud 
occasionally  been  made  to  the  profession  to  which 
he  belonged.  He  deprecated  any  distinction  in 
society  or  division  into  classes  in  this  country. 


728 


Mr.  WATERBURY,  in  reply  to  a  portion  o 
Mr.  M.'s  remarks,  explained  the  part  he  ha 
taken,  and  his  object,  in  relation  to  the  legal  pro 
fession. 

Mr.  PERKINS  thought  the  fact  that  so  man 
of  the  legal  profession  had  been  honored  wit] 
seats  in  the  Convention,  was  a  sufficient  commen 
tary  on  what  had  been  said  in  disparagement  o 
them,  and  significant  of  the  estimation  in  which 
they  were  generally  held.  He  then  proceeded  t 
give  his  views  in  relation  to  the  county  court 
and  repelled  the  imputations  which  had  been 
thrown  upon  the  institution,  so  far  as  his  owr 
county  was  concerned.  He  had  never  heard  i 
complaint  against  the  common  pleas  of  that  coun. 
ty ;  and  he  could  say  for  it  that,  notwithstanding 
its  business  exceeded  greatly  the  business  of  the 
circuit  court,  the  appeals  from  its  decisions  were 
rare  compared  with  those  from  the  circuit.  Bu 
he  was  content,  if  the  Convention  were  disposec 
to  abolish  these  courts,  that  they  should  do  it 
provided  the  13th  section  was  retained,  which 
gave  the  legislature  power  to  establish  local  anc 
inferior  tribunals.  He  would  venture  to  say  that 
his  county  would  be  the  first  to  come  in  under 
this  13th  section,  and  petition  the  legislature  to 
restore  their  county  court. 

The  committee  here  rose  and  reported  progress 
and  the  Convention  adjourned  to  9  o'clock  to- 
morrow morning. 

SATURDAY,  (69th  day,)  August  22. 
Prayer  by  the  Rev.  Mr.  STEELE. 
Mr.    YAWGER  presented   a   communication 
from  the  Trustees  of  Cayuga  Academy,   on   the 
subject  of  the  Literature  fund,  which*  was   refer- 
red to  the  committee   of  the   whole  having  in 
charge  the  report  of  the  committee  of  which  Mr. 
NICOKL  is  chairman. 

EVKNING  SESSIONS. 

Mr  PATTERSON  offered  the  following  : 

Resolved,  That  on  and  after  Monday  next,  the  Conven- 
tion will  hold  evening  sessions,  except  on  Saturdays, 
commencing  at  7  o'clock. 

Mr.  PATTERSON  said  that  he  was  induced  to 
offer  that  resolution,  because  he  thought  the  time 
was  approaching  when  it  would  be  necessary  to 
wind  up  the  business  of  the  Convention  and  go 
home. 

Mr.  CROOKER  said  he  would  vote  for  the  re- 
solution if  it  was  amended  so  that  it  could  or 
should  arrange  business  so  that  in  the  evening 
there  should  be  nothing  but  discussions  except  in 
committee  of  the  whole.  He  did  not  want  to  al- 
low any  votes  to  be  taken  at  a  time  when  it  was 
evident  there  would  be  but  a  thin  attendance  of 
members.  He  would  attend  himself,  though 
quite  indisposed.  He  moved  so  to  amend  the  re- 
solution. 

Messrs.  W.  TAYLOR,  CLYDE,  PATTER- 
SON, NICOLL,  and  STRONG,  opposed  the 
amendment  of  Mr.  CROOKER. 

The  amendment  was  negatived. 

Mr.  CHATFIELD  opposed  the  adoption  of  the 
resolution.  However  it  might  be  with  other  gen- 
tlemen, the  time  occupied  during  the  two  daily 
sessions,  was  as  much  as  he  could  give  to  his  du- 
ty here  with  safety  to  himself.  Since  the  com- 
mencement of  the' session,  he  had  scarcely  been 
outside  the  bar  when  the  house  was  in  session. — 


His  constitution  would  not  endure  more  labor 
than  was  already  imposed  upon  the  members  of 
this  body,  nor  did  he  believe  any  further  labor 
could  be  done  and  result  in  benefit  to  our  consti- 
tuents. No  man  with  brains  in  his  head  can  pro- 
fitably devote  more  than  ten  hours  in  each  day  to 
intellectual  labor.  Physical  exercise  was  neces- 
sary to  preserve  health,  and  this  was  not  permit- 
ted when  sitting  constantly  in  this  chamber. 

Mr.  CROOKER  thought  i!  they  hud  less  talk  on 
some  subjects— for  instance  on  striking  the  word 
"native"  from  the  article  on  the  Execuiive  De- 
partment, they  might  have  done  all  their  business 
within  a  reasonable  time,  without  resorting  to  ses- 
sions which  m';st  be  destructive  of  health.  Even 
uow,  if  gentlemen  would  confine  themselves  to 
short  explanations,— if  they  would  discuss  the 
point  at  issue— rather  than  ramble  all  round  crea- 
tion— they  would  yel  along  well  enough.  But  if 
gentU-men  must  make  seven  speeches  a  day,  and 
talk  on  everything  but  the  question,  for  the  pur- 
pose of  making  shows  of  themselves,  he  knew  not 
when  they  would  ^ef  to  voting. 

Mr.  PATTERSON  defended  the  resolution. 

Messrs.  CROOKER  and  STETSON  entered  into 
a  trifling  personal  explanation. 

Mr.  STETSON  did  not  wish  to  compel  mem- 
bers to  come  here  if  they  were  sick. 

Mr.  HOFFMAN  opposed  the  resolution.  His 
health  would  not  permit  him  lo  remain  here  at 
night  j  and  it  would  be  very  hurtful  to  the  mem- 
bers alter  a  hard  day's  labor,  tu  sit  here  at  night, 
with  gas  lights  helping  lo  consume  the  vitality  of 
:he  atmosphere. 

Mr,  NICHOLAS  said    it  was  out  of  the  ques- 

;ion  to  meet  here   these   hot  nights.       They  had 

much  better  meet  in  the  mornings;  and  he  moved 

o  amend  the  resolution,  by  striking  out  all  after 

he  word  resolved  and  inserting  "That  the  morn- 

ng  sessions  commence  hereafter  at  8   o'clock  A. 

VI."     By   adopting  this  as  the  hour  of  meeting, 

and    meeting  an    hour  earlier    after  recess,  two 

lours  would  be  saved   every  day.     This   would 

~>e  preferable  to  having  evening  sessions. 

Mr.  CONELY  moved  to  lay  the  whole  subject 
in  the  table. 

Mr.  SHEPARD  called  for  the  ayes  and  noes  on 
his  motion  of  Mr.  COJVELY'S. 

They  were  ordered. 

The  motion  of  Mr.  CONELY  was  lost.  Ayes 
J9,  noes  44. 

Mr.  RICHMOND  was  desirous  to  accommo- 
ate  the  gentleman  from  Chautauque,  by  fixing 
he  time  of  meeting  so  that  there  could  be  some 
vork  done,  and  therefore  he  would  move;  if  in 
order,  that  the  hour  of  meeting  should  be  7  A. 
VI..  [A  VOICE — That  is  half  an  hour  before  we 
reakfast."] 

Mr.  PENNIMAN  said  he  was  unwilling  by 
is  vote,  to  compel  gentlemen  to  do  what  he  was 
nable  to  do  himself.  He  should  vote  against 
he  resolution. 

Some  further  conversation  ensued  between 
Messrs.  MANN,  RICHMOND,  PATTERSON, 
JROWN,  F.  F.  BACKUS,  BASCOM,  STET- 
,ON  and  CROOKER. 

Mr.  DANFORTH  rose  to  debate  the  question, 
ut  was  cut  short  (amid  much  laughter,)  by  the 
rrival  of  10  o'clock,  the  hour  set  apart  for  con- 
idering  the  special  order  of  the  day. 


729 


The  Convention   then  went  into  committee  c 
the  whole  on  the  reports  of 

THE  JUDICIARY. 

Mr.  CAMBRELENG  resumed  the  Chair,  and 
Mi.  BROWN  rose  to  remove — if  in  his  powe 
— some  of  the  objections  made  to  the  report  unde 
consideration.     This  duty  properly  and  more  ap 
propnately  belonged  to  the  chairman  of  the  judi 
ci;iry    committee,  Whose   illness    none   regrette 
more  than  himself,  and  whose  absence  at  this  tim 
all  would  regard  as  a  public  loss.     He  was  happ 
to  find   himself  concurring   with    the   gentlema 
from  Gtsego  (Mr.  CHATFIELD)  in  moat  of  his  pro 
positions  for  j"dicial  reform,  and  most  especiall 
in  regard  to  the  system  of  special  pleading.  Plead 
ings  were  the  statements  of  parties,  prosecutingo 
defending   suits  in  courts  of  justice,  made  for  thi 
information  of  the  court,  and  of  the  parties  them 
selves,  and   should    contain  a  clear,   concise  ana 
correct   account   of  the   facts   which  formed  the 
ground  of  complaint  upon  the  one  side,  and  the  de 
fence  upon  the  other.     These  written  statement 
should  be  clear  and  concise,  because  brevity  ana 
perspicacity  enable  the  mind  to  comprehend,  aru 
the  memory  to  retain,  what  it  is  designed  to  com 
wiunicate.     They  should  also  be  true,  because  the 
establishment  of  truth,  is  the  legitimate  purpose 
of  all  enlightened    investigation.      Pleadings  in 
courts  of  record  are  in  the  main  destitute  of  al 
these  requisites     The  declaration  designed  to  ap- 
prize the  defendant  of  the  nature  of  the  plaintiff's 
claun,  is  in  too  many  instances,  false  from  begin- 
ning to  end,  and  intended  to  be  so,  while  the  plea 
—the  office  of  which  should  be  to  communicate  to 
the  plaintiff  the  nature  of  the  defence  to  be  set  up 
at  the  trial— is  also  without  a  shadow  of  truth  to 
support  the  fcl  legations  it  too  often  contains.    That 
such  A  system  of  pleading  should  exist  in  coun- 
tries,  where  the  mode  of  administering  justice  is 
concealed  from  the  great  mass  of  the  people,  and 
the  practice  of  the  law  is  confined  to  a  privileged 
class,  will  not  excite  surprise;  but  that  it  should 
be  suffered  to  exist  amongst  a  free  people,  where 
all  are  equal*—  who  have  undertaken  to  create  go- 
vernment, and  to  administer  justice  for  themselves, 
is  certainly  to  be  deplored  by  all  those  who   look 
to  the  pure  and  wholesome  execution  of  the  law, 
as  a  means  of  social  or  individual  happiness.    The 
gentleman   from  Otsego  had  illustrated   the  folly 
and  injustice  of  our  antiquated  and  barbarous  sys- 
tem of  special  pleading,  by  tracing  the  progress  of 
i  cause  upoi,  a  special  demurrer,   from  its  com- 
mencement  to  its  determination,  when  the  par- 
ies, atter  a  great  expenditure  of  time  and  money, 
iitui  themselves  just  where  they   started,    without 
having  touched  the  merits  of  the  question.     He 
(Mr.  B  )  might,   with  a  similar   object,  allude  to 
e    proceedings   of  a  kindred    character   in  the 
court  ol  chancery.     Large  sums  of  money  and  ma- 
ny months  of  valuable  time,  are  often  wasted  in 
this  court  to  settle  whether  a  bill  or  an  answer 
contains  a  tew  words  more  or  less  than  strict  prac- 
t.ce  requires.     In  the  mean  time  the  important 
question  which  the  suit  was  instituted  to  settle 
and  determine,  is  left  in  abeyance  and  remains  in 
a    measure    forgotten.     He   sometimes  heard    his 
professional  friends   denominating  the  practice  of 
special  pleading  a  wise  and  beautiful  system.  One 
ich  made  good  lawyers,  required  great  power  of 
language,  great  skill,  and  which  brought  the  ques. 


tion  in  controversy  to  a  single  point  for  the  judg- 
ment of  the  court.     It  was  a  beautiful  system  in- 
deed.    Beautiful  lor  those  who  had  the  time  and 
the  skill  to  comprehend  it.     Pleasant  enough  for 
his  learned  friend  from  New  York,  (Mr  O'COIVOR) 
who  understood  it  to  perfection,  and  in  this  de- 
partment of  legal  knowledge,  stood  at  the  head  of 
his  profession.     But  not  quite  so  agreeable  for  the 
clients  of  those  unfortunate  wights  whosomefimes 
come  in  contact  with  him.     War  was  sometimes 
beautiful  to  look  upon,  by  those  who  were  bejond 
the    reach  of  its  dangers.     The  combined  move- 
ments  of  great  armies — the  passage  of  lolty  nioun. 
tains  and  rapid  rivers — the  Rhine— the    Po—  the 
Danube — the  Alps  and  the  Pyrenees,  were   grand 
and  beautiful  when  beheld  by  those  who  saw  from 
a  distance.     But  they  were  terribly  destructive  of 
human  life,  human  happiness,  and  all  the  valuable 
and  beautiful  creations  of  human  art.     So  it  was 
to  some  extent  with  operations  of  special  plead, 
ing,  when  applied  to  the  prosecution  and  defence 
of  legal  controversies.     They  m.'ght  be  a  source  c.f 
no  inconsiderable  pleasure  and  satisfaction  to  the 
mere  spectator.     1  hey  might  yield  no   inconside. 
rable  emolument  to  the  mere  performer.     But  to 
the   suitors    themselves — to  those   whose   rights, 
whose  property,  whose  all  mi^ht  be  the  sport  and* 
plaything  of  this   abstruse   science,  ihey  were  too 
often  attended  with  the  most  unhappy  consequen- 
ces.    Like  the  operations  of  war,  they  too  often 
lestroyed  the  objects  they  were  designed  to  pro- 
tect.     He  had  risen,  however,  10  answer  some  of 
;he  objections  made  by  the  gentleman  from  Chau- 
:auque  (Mr.  MARVIN)  to  the  report  under  consi- 
deration, and  to  that  task  he  would  now  address 
himself.     He  thanked  him  for  the  candor  and  kbe- 
rality  with  which  he  had  dealt  with  the  report  of 
,he  committee,  and  so  far  from    regarding  any  ef. 
brts  he  might  make  to  amend  the  article  before 
he  Convention,  h&  was  sure^he  spoke  the  senti- 
nents  of  his  colleamies,  when  he  assured  him  they 
would  feel  grateful  for  any  aid  he  might  contii- 
jute  to  perfect  the  plan.     The  mind  of  that  gen- 
leman    was   embarrassed  with   doubis,  as  to  the 
manner  in  which  the  equity  causes  would  be  tried, 
hould  the  report  be  adopted  ;  and  for  his  infor- 
nation  he,  Mr.  B.,  would  state  that  the  chancery 
auses  would  go  upon  the  ordinary  circuit  calen- 
er  for  the  trial  of  issues  at    law,   or    the  judges 
would  at  their  pleasure  appoint  circuits  in  thedif- 
erent  counties,  especially  devoted  to  equity  busi- 

es3.     In  either  event,   there  would  be  no  jury 

nless  an  issue  had  been  made  up — and  the  cause 
/ould  be  called  in  its  regular  order  upon  the  ca- 
ender.  The  complainant  would  proceed  to  exa- 
une  his  witnesses,  and  the  court  would  dispose 
fall  the  questions  in  the  same  manneras  witnes- 
es  are  examined  and  questions  disposed  of,  in  a 
rial  at  common  law.  Gentlemen  would  see  that 
ast  masses  of  irrelavant  matter,  which  now  find 
leir  way  into  the  depositions  taken  before  an  ex- 
miner,  would  be  rejected.  When  the  evidence 
n  the  part  of  the  complainant  was  closed,  tliede- 
endant  would  be  at  liberty  to  move  to  dismiss  the 
ill  tor  want  of  equity,  as  he  now  moves  for  a  non- 
uit  in  a  trial  at  law,  when  the  plaintifl'sevidence 
as  failed.  Should  the  judge  order  the  bill  to  be 
ismissed,  an  order  or  decree  to  that  effect  would 
e  entered.  On  the  other  hand,  should  the  com- 
lainant  establish  his  case,  the  defendant  would 

66 


730 


proceed  with  the  examination  of  his  proofs;  and 
should  he  fail  to  make  out  his  defence,  the  judge 
in  a  clear  case,  would  decide  the  question  upon 
the  spot,  and  a  decree  would  he  forth  with  entered, 
granting  the  relief  prayed  for  in  the  bill.  The 
party  dissatisfied  with  the  judgment  of  the  court; 
would  have  leave  to  move  to  set  the  decree  aside. 
A  case  would  be  made  up  by  the  party  dissatisfied, 
amendments  would  be  proposed  by  his  adversary, 
and  the  case  settled  by  the  judge  who  heard  the 
cause,  as  cases  are  now  made  up  before  the  circuit 
judge,  in  actions  at  law.  It  would  be  noticed  tor 
hearing,  argued  and  determined  by  the  three  or 
four  judges  sitting  at  the  term  in  bane  held  for  the 
judicial  district,  in  the  same  manner  and  upon  the 
same  papers,  as  causes  are  now  heard  and  deter 
mined  at,  one  of. the  general  terms  of  the  supreme 
court.  Should  the  questions  involved  in  the  case 
at  the  circuit  be  so  numerous,  or  ot  such  magni 
tude,  that  the  judge  would  be  unwilling  to  settle 
it  without  an  elaborate  argument,  he  might  then 
reserve  all  the  questions  to  be  settled  bv  the  court 
at  one  ot  the  bane  terms,  upon  a  case  containing 
all  the  evidence  as  before  mentioned.  His  profes- 
sional friends  would  observe  that  the  proceeding 
was  in  all  respects  similar,  and  as  simple  as  the 
trial  and  argument  of  an  action  of  assumpsit  in  the 
supreme  court,  with  the  single  exception  that 
there  was  no  jury.  When  he  added  that  the  plead- 
ings and  papers  were  to  be  filed,  and  the  decrees 
and  orders  enteied  with  the  clerk,  and  the  cause 
heard  in  the  immediate  neighborhood  of  the  suit- 
ors and  their  solicitors,  he  had  completed  his  de- 
scription of  the  mode  in  which  equity  causes  were 
to  tie  heard  and  determined  under  the  proposed 
plan.  He  had  great  confidence  it  would  commend 
itself  to  the  favor  of  the  Convention  and  the 
country. 

Another  objection  of  the  gentleman  from  Chau- 
tauque,  was  10  ihe  esr<iblishment  of  eight  supreme 
couit  clerk's  offices.  The  report  of  the  committee 
was  silent  on  I  he  subject  of  these  offices,  designing 
to  leave  it  to  the  wisdom  ot  the  legislature.  A  por- 
tion of  the  committee,  and  amongst  others  the 
member  Irotn  Herkimer,  (Mr.  Loomis,)  proposed  to 
confide  this  class  of  duties  to  the  county  clerks, 
and  if  it  was  practicable  it  should  have  his  hearty 
concurrence.  Another  portion  of  the  committee 
supposed  that  a  clerk's  office  in  each  judicial  dis- 
trict would  be  indispensable,  and  such  was  his 
opinion.  The  principal  duty  of  the  county  clerks 
was  to  recrrd  conveyances,  fo  preserve  the  public 
recoids,  to  act  as  clerks  ol  ihe  courts  of  oyer  and 
terminer  and  the  county  courts,  and  to  perform  ma- 
ny other  offices  connected  with  the  internal  admi- 
nistration and  police  of  the  county.  They  had  am- 
ple employment  at  present.  The  duties  of  the 
clerks  of  the  supremo  court,  under  Ihe  new  judi- 
cial plan,  would  be  of  a  different  character,  requi- 
ring some  professional  knowledge,  and  an  accurate 
and  exact  method  of  keeping  books  and  accounts. 
Upon  them  would  be  devolved  all  the  duties  now 
performed  by  the  clerks  of  the  supreme  court,  and 
the  registers  and  clerks  in  chancery.  If  gentle 
men  would  look  at  ihe  difficult  and  complicated 
character  of  these  various  employments,  the  great 
variety  of  hooka  to  be  kept,  the  entries  to  be  made 
and  Ihe  moneys  to  be  paid  and  received  by  the 
clerks,  upon  the  equity  side  of  the  court,  he  thought 
they  would  umie  with  him  in  the  opinion,  that 


they  could  not  be  advantageously  coupled  with  the 
already  multifarious  and  onerous  duties  performed 
by  the  county  clerks.  At  present  (hero  were  four 
supreme  clerk's  offices,  two  registers  and  six  chan- 
cery cleik's  offices,  making  twelve  in  all.  with  as 
many  officers.  The  "plan  suggested  by  the  com- 
mittee requires  but  eight  in  all,  thereby  reducing 
the  offices  and  the  incumbents  one. third,  and  thus 
making  no  inconsiderable  saving  to  the  treasury. 
If,  however,  the  Convention  thought,  otherwise, 
the  committee  would  cheerfully  acquiesce  in  the 
proposition  to  throw  the  performance  of  these  du- 
ties upon  the  clerks  ot  the  counties. 

It  had  also  been  suggested  that  the  several 
benches  or  bane  courts  under  the  proposed  system, 
would  make  conflicting  decisions  and  pronounce 
conflicting  judgments  upon  the  same  identical  state 
of  facts,  and  thus  introduce  disorder  and  uncertain- 
ty into  the  judicial  administration.  When  asked 
how  the  judiciary  committee  proposed  to  obvi- 
ate this  objection,  his  answer  was,  that  it  could 
not  be  obviated  or  removed.  It  was  no  use  to 
deny  or  attempt  to  conceal  what  was  apparent  to 
every  observer,  that  the  separation  of  the  court 
was  much  to  be  deplored,  and  must  sometimes 
lead  to  conflict  of  opinion.  The  severance  could 
only  he  justified  by  the  severest  necessity.  This 
had  been  conceded  by  the  committee  from  the 
commencement.  But  they  had  insisted  in  reply, 
and  they  still  insisted,  that  this  plain  and  obvious 
defect  was  more  than  compensated  by  the  vast 
and  manifest  advantages  which  would  follow  the 
distribution  of  the  judicial  power  over  the  vari- 
ous portions  of  the  state.  The  case  put  by  the 
member  from  Chautauque,  he  would  say,  was  a 
most  improbable  and  extreme  case,  and  one,  he 
would  venture  to  say,  which  never  would  occur. 
The  same  parties  have  two  suits  pending  at  the 
same  time — one  in  the  8th  and  one  in  the  7th  dis- 
trict— upon  two  several  bills  of  exchange  of  the 
same  form  and  the  same  date,  and  involving  legal 
questions  similar  in  all  respects,  and  resting  upon 
the  same  state  of  facts.  One  of  these  causes  is 
argued  and  determined  at  the  city  of  Buffalo  in 
the  month  of  June,  and  the  other  cittnes  on  to  be 
argued  at  the  city  of  Rochester  in  the  month  of 
July.  What,  says  the  gentleman,  shall  secure 
these  parties  against  a  decision  at  Rochester  which 
may  not  be  in  direct  hostility  with  the  opinion  of 
the  court  delivered  at  Buffalo  ?  The  answer  is, 
that  there  can  be  no  assurance  that  the  opinion  of 
these  two  different  benches  of  the  same  tribunal 
may  not  be  in  conflict.  But  he  wrould  ask,  what 
would  naturally  and  inevitably  occur  upon  the 
argument  of  the  second  cause  at  Rochester  ? — 
WThy,  the  counsel  would  naturally — indeed  it 
would  be  their  duty — to  inform  the  court  that  a 
question  similar  in  all  respects  had  been  recently 
decided  at  Buffalo,  and  the  opinion  of  the  judges 
there  weuld  be  read  to  the  court  setting  at  Roches- 
ter. 

The  judges  sitting  at  Rochester  would  either 
concur  with  their  brethren  at  Buffalo,  or  they 
would  declare  that  the  questions  were  so  novel,  so 
difficult  and  unsettled  in  this  country  and  in  Eng- 
land, that  it  was  a  proper  subject  for  tjie  judgment 
of  the  court  of  appeals.  And  so  it  would  be. — 
One  of  the  causes  would  be  removed  into  the 
court  of  appeals,  and  execution  upon  the  other 
would  in  the  mean  time  be  suspended.  The  cour 


731 


-t  resort  would  proceed  in  due  season,  to  set- 
tle the  law  finally  and  forever  upon  the  facts  sub 
tnitted,  find  that  would  be  a  rational,  enlightened 
and  just  disposition  of  the  controversy.  The 
Various  circuit  and  district  courts  of  the  United 
States,  were  usually  in  session  at  one  and  the  same 
time,  in  the  various  commercial  cities  of  the 
Union.  Questions  of  admiralty  and  commercial, 
law,  questions  under  the  revenue,  the  land  and 
bankrupt  laws,  of  precisely  similar  character  were 
constantly  brought  before  them  for  settlement  and 
adjudication.  No  difficulty  had  ever  grown  out 
of  a  conflict  of  decision  amongst  these  numerous 
tribunals.  Whenever  a  conflict  of  opinion  occur- 
red, whenever  a  different  rule  of  interpretation 
xvas  laid  down — an  event  which  rarely  happened, 
it  was  disposed  of  by  writ  of  error  to  the  supreme 
court  at  Washington,  precisely  in  the  manner  he 
had  indicated  in  regard  to  the  supposed  hostile 
in  duration  in  each  of  these  nine  counties  in  every 
year,  would  be  abundantly  sufficient  and  more 
than  sufficient  to  transact  all  the  business,  both 
legal  and  equitable,  that  would  be  found  in  this 
•district.  And  if  sufficient  for  this  district,  it  would 
be  equally  so  for  every  other  in  the  state,  except 
in  the  great  cities,  where  some  additional  force 
would  be  required.  Upon  this  calculation  there 
would  be  eight  weeks  of  circuit  duty  to  be  done 
for  each  of  the  nine  counties,  making  in  all  sev- 
enty-two weeks,  which  would  be  eighteen  weeks 
for  each  of  the  four  judges.  Four  terms  of  the 
court  in  bane,  are  also  to  be  held  in  each  judicial 
district  every  year ;  and  if  these  bane  terms  oc- 
cupy three  weeks  each,  which  is  nearly  as  long 
as  the  terms  of  the  supreme  court  now  are,  it 
would  add  twelve  weeks  more  to  the  court  duty 
of  the  judges,  supposing  them  all  to  sit  at  the 
terms.  Thus  making  the  entire  duty  of  the  judges 
performed  at  the  bane  terms  and  circuit  courts  to 
consume  thirty  weeks  every  year.  It  was  true 
that  under  the  plan  submitted,  four  out  of  the 
thirty-two  judges  are  to  be  withdrawn  to  serve  in 
the  court  of  appeals.  Yet  this  is  more  than  com- 
pensated by  the  fact,  that  only  three  of  the  judges 
are  required  to  set  at  the  bane  terms.  And  the 
large  amount  of  circuit  duty  allotted  in  the  cal- 
culation to  small  counties  which  could  not  under 
any  circumstances  be  demanded.  He  trusted  that 
with  this  explanation  the  honorable  member  from 
Clinton  would  see  that  the  force  provided  was 
amply  sufficient. 

His  honorable  colleague  upon  the  committee, 
(Mr.  O'CoNoK.,)  entertained  the  opinion,  if  he 
understood  him  correctly,  that  the  court  of  ap- 
peals would  soon  sink  to  the  position  now  occu- 
pied by  the 'supreme  court,  and  ia  the  end  become 
•overwhelmed  with  the  pressure  of  its  business. 
He  could  not  doubt  but  upon  more  mature  reflec- 
tion, that  gentleman  would  reverse  this  opinion. 
"We  have  been  told  over  and  over  again,  that  a  few 
more  judges  added  to  the  bench  of  the  supreme 
court,  would  soon  relieve  it  from  it^present  em 
barrassments.  And  no  one,  he  thought,  would 
doubt,  that  if  its  force  was  increased  to  eight,  and 
relieved  from  attendance  upon  the  court  of  errors 
—it'  three  judgi-s  as  now  were  empowered  to  hold 
the  court,  and  the  ability  was  thus  given  to  make 
its  sittings  continual,  that  the  business  which 
now  overloads  its  calenders  and  overpowers  its 
judges,  would  soon  disappear,  and  that  which 


would  hereafter  occur,  be  despatched  with  ease 
and  convenience.  Now  if  this  was  so,  what  will 
prevent  the  eight  judges,  which  the  judiciary 
committee  have  provided  for  the  court  of  appeals, 
from  disposing  of  an  equal  amount  of  business 
should  it  ever  come  before  them.  They  are  to 
hold  four  terms  in  each  year,  and  the  co\irt  is  so 
constructed  that  it  may  be  at  all  times  in  session. 
What  reason  is  there  to  think  that  the  business 
of  the  court  of  appeals  will  be  greater,  or  require 
more  time  or  greater  labor,  than  the  business  of 
the  present  court  of  errors  ?  What  reason  is 
there  to  apprehend  that  the  public,  that  suitors 
or  their  counsel,  will  be  less  satisfied  with  the 
judgments  of  the  court  which  this  Convention 
propose  to  create,  than  they  now  are  with  the 
judgments  of  the  supreme  court  or  the  court  of 
chancery  ?  None  whatever.  The  present  judges 
and  the  chancellor  are  most  upright,  able,  faith- 
ful and  enlightened  men,  distinguished  for  their 
learning  and  legal  knowledge,  their  industry, 
their  powers  of  application  and  research.  But 
may  we  not  hope  that  the  new  judicial  officers  may 
be  equally  so  ?  May  we  not  hope  that  this  same 
chancellor  and  these  same  judges  may  compose  a 
part,  a  most  useful  and  influential  part,  of  the  judi- 
cial force  to  be  created  under  the  newr  constitu- 
tion ?  The  new  judges  will,  it  is  to  be  hoped, 
be  as  liberally  compensated  as  the  old.  Their 
labors  will  be  less,  the  means  and  the  sphere  of 
their  usefulness  is  to  be  greatly  enlarged  ;  and 
why  shall  not  their  opinions  and  their  judgments 
be  equally  learned  and  equally  satisfactory  ?  No 
one  would  doubt  it  for  a  moment.  If,  therefore, 
this  reasoning  was  no't  wholly  delusive,  the  ap- 
peals to  the  court  of  last  resort,  under  the  new 
system,  would  be  no  more  numerous  than  they 
were  under  the  old.  He  would  remind  gentle- 
men, that  the  court  of  errors  was  not  in  its  organ- 
ization very  well  calculated  for  the  speedy  and 
and  enlightened  despatch  of  the  public  business. 
Fe\v  would  be  disposed  to  call  in  question  the 
learning  and  ability  displayed  in  its  judicial  de- 
cisions, but  none  would  deny  that  its  sessions 
were  marked  by  a  great  want  of  attention  on  the 
part  of  its  members.  Some  employed  themselves 
in  walking  about  the  room,  some  in  conversation, 
some  in  writing  letters,  some  in  one  way  and  some 
in  another,  and  all  this,  too,  while  counsel,  emi- 
nent for  their  qualifications  and  acquirements, 
were  arguing  questions,  upon  the  examination  of 
which_they  had  spent  the  labor  of  many  weary 
hours — questions  involving,  sometimes,  the  prop- 
erty, the  personal  liberty  and  the  happiness  of 
their  fellow  men.  This  inattention  upon  the  part 
of  many  members  of  the  court  of  errors  to  what 
some  might  deem  their  most  solemn  duties,  was 
the  inevitable  consequence  of  the  great  number 
of  its  judges,  for  it  is  a  well  known  fact,  that 
when  the  weight  of  responsibility  is  shared 
among  a  multitude  of  men,  the  obligation  rests 
lightly  upon  the  person  of  the  individual.  In 
the  character  of  Sir  William  Grant,  we  have  the 
I  model  of  a  great  magistrate,  that  judges  of  the 
I  present  day  would  do  well  to  imitate.  Those 
who  desire  to  behold  the  most  illustrious  example 
of  judicial  dignity,  united  to  great  learning  and 
uncommon  ability,  on  record,\vill  do  well  to  look 
at  the  sketch  of  his  manners  upon  the  bench,  as 
we  have  it  from  the  pen  of  his  friend  and  com- 


732 


panion,  Lord  Brougham.  The  hearing  of  a  cause 
was  marked  b^  long  and  patient  and  protracted 
attention  ;  by  silence  unbroken  and  profound, 
Uninterrupted  by  interference  or  interrogation ; 
by  deportment  as  noble  and  gentle  as  the  language 
of  his  judicial  opinions  was  elegant  and  simple, 
and  their  argument  exalted  and  incontestable. — 
In  the  construction  of  the  court  of  appeals,  re- 
gard was  had  to  this  great  defect  in  the  constitu- 
tion of  the  court  for  the  correction  of  errors.  It 
was  to  be  made  sufficiently  numerous  to  command 
the  public  confidence,  and  to  transact  the  public 
business,  but  not  so  large  as  to  become  oppressive 
on  account  of  its  expenses,  or  to  induce  indolence 
or  inattention  on  the  part  of  its  members.  That 
it  would  accomplish  the  great  purposes  for  which 
it  was  to  be  instituted,  he  entertained  no  manner 
of  doubt. 

Mr.  B.  next  examined  the  several  propositions 
for  a  county  court,  submitted  by  the  member 
from  Cattaraugus  (Mr.  CROOKER,)  and  the  mem- 
ber from  Herkimer  (Mr.  LOOMIS).  If  either  of 
these  plans  contemplated  the  attendance  of  a 
grand  or  petit  jury,  he  could  not  give  them  his 
support.  The  judiciary  committee  had  been 
influenced  by  a  sincere  desire  to  diminish  the 
number  of  courts  wherever  it  was  possible,  and 
to  lessen  the  charges  annually  made  upon  the 
county  treasury  for  the  expenses  of  judicial  ad- 
ministration ;  and  he  could  not  therefore  concur 
in  the  establishment  of  a  county  court,  demand- 
in0"  the  attendance  of  jurors,  officers  and  wit- 
nesses, and  charging  the  counties  with  the  ex- 
penses of  their  attendance.  If  the  judgment  of 
the  Convention  should  be-  in  favor  of  a  county 
court,  he  would  greatly  prefer  a  judge  of  the 
common  pleas  to  be  elected  in  each  judicial  dis- 
trict to  hold  these  courts,  upon  a  plan  originally 
adopted  by  the  committee.  Such  a  court  could 
be  framed  upon  the  report  now  under  considera- 
tion, without  any  derangement  whatever,  by 
simply  reducing  the  number  of  supreme  court 
judge*  to  three  in  each  district.  This  judge 
would  hold  all  the  courts  of  common  pleas  in 
the  district,  and  with  the  aid  of  two  justices 
of  the  peace,  might  also  hold  the  courts  of  gen- 
eral sessions.  He  also  declared  his  opposition 
to  any  extension  of  the  jurisdiction  of  justices 
of  the  peace.  Professional  men,  who  resisted 
the  proposition  to  enlarge  the  jurisdiction  of 
these  courts,  were  no  longer  obnoxious  to  the 
charge  of  interest,  for  the  collection  business 
had  ceased  to  be  an  object  worth  their  attention. 
He  believed  the  public  interest  would  be  greatly 
promoted  by  limiting  the  jurisdiction  to  fifty 
dollars— abolishing  the  remedy  by  appeal,  and 
restoring  the  old  method  by  certiorari  to  the  su- 
preme court.  He  was  not  unwilling,  however, 
to  leave  the  whole  subject  to  the  judgment  of 
the  legislature.  He  also  alluded  to  the  compen- 
sation paid  under  the  present  system  to  public 
officers — to  clerks,  to  surrogates,  to  masters  and 
examiners,  to  registers  and  clerks,  who  appear- 
ed as  guardians  in  foreclosure  and  other  suits  for 
infants.'  He  hoped  that  the  legislature,  which 
was  to  assemble  here  in  January  next,  would  co- 
operate with  this  Convention  in  the  noble  work 
of  judicial  reform.  That  they  would  contribute 
their  aid  to  purify  and  exalt  the  administration 
of  justice,  and  thus  make  it  worthy  of  a  great 


and  enlightened  people.  He  trusted  the  judi- 
cial officers  to  be  appointed  or  elected  under  the 
new  constitution  would  be  required  to  assemble 
yearly  at  the  seat  of  government,  and  apply  them- 
selves diligently  and  faithfully  to  simplify  their 
rules  of  practice  and  modes  of  proceeding,  and 
to  impart  some  degree  of  truth  and  common 
sense  to  their  forms  of  pleading.  In  conclusion, 
he  commended  the  report  of  the  majority  of  the 
judiciary  committee  to  the  approbation  of  the 
Convention — not  as  a  plan  wholly  free  from  ob- 
jection— nor  as  one  that  was  wholly  without  ifc* 
faults  and  imperfections.  But  he  commended  it 
to  their  approbation  as  a  system  embodying  many 
great  and  valuable  reforms,  and  which  could  not 
fail  to  be  followed  by  the  very  best  results,  should 
it  be  adopted. 

Mr.  J.  J.  TAYLOR  said  it  was  his  fortune  or 
misfortune  the  other  day  to  make  a  few  remarks 
without  premeditation  on  the  subject  before  them. 
He  did  not  intend  to  have  said  a  word  more  but 
he  felt  it  due  to  himself  to  say  something  in  re- 
ply to  the  gentleman  from  Otsego,  (Mr.  CHAT- 
FIELD,)  who  yesterday  classed  him,  with  others, 
among  the  opponents  of  legal  and  judicial  reform. 
He  had  heard  the  explanation  the  gentleman  had 
given  to  others  who  were  included  in  the  charge, 
and  though  it  sounded  much  broader  to  his  ears, 
as  it  seemed,  it  did  also  to  those  of  others,  when 
made,  than  it  does  as  explained,  he  nevertheless- 
accepted  the  explanation.  But  he  rose  now  to 
say,  and  to  show,  that  if  he  was  to  be  classed 
among  the  opponents  of  reform,  so  was  the  gen- 
tleman himself,  for  on  almost  every  point,  the 
gentleman's  views  and  his  own  were  identically 
the  same.  He  understood  that  gentleman  to  be 
opposed  to  an  amalgamation  of  equity  and  law 
powers — though  in  favor  of  having  them  united 
in  one  court,  he  (Mr.  C.)  would  have  them  kept 
distinct.  The  gentleman's  modification  of  this- 
third  section,  as  Mr.  T.  understood  it,  would  per- 
petuate the  distinction  in  this  one  court — at  all 
events  it  was  susceptible  of  that  construction 
whilst  Mr.  T.'s  modification  of  the  section  would 
have  enabled  the  legislature  to  amalgamate  the 
two  jurisdictions.  That  Mr.  T.  desired  to  see 
done,  as  far  as  it  could  be  done  safely,  and  if 
there  was  any  difference  between  the  gentleman 
and  himself,  Mr.  T.  was  the  reformer,  and  the 
gentleman  from  Otsego  was  not.  Again,  the 
gentleman  had  avowed  himself  in  favor  of  the 
report,  of  the  majority  of  the  committee.  So  had 
he.  The  gentleman  desired  to  see  the  court  of 
appeals  all  holding  by  the  same  tenure.  That 
was  precisely  Mr.  T.'s  position.  The  gentleman 
went  for  the  election  of  the  judges.  So  did  Mr. 
T.,  and  the  only  difference  between  them  was, 
that  the  gentleman  preferred  to  elect  them  by 
general  ticket,  and  he  by  districts.  Mr.  T.  was 
willing  to  leave  it  to  the  convention  to  say  which 
was  most  democratic.  The  gentleman  had  no 
objection  to  the  judges  ambulatory.  He  had  none. 
The  gentleman  went  for  some  kind  of  county 
court,  but  against  them  as  at  present  organized. 
Precisely  Mr.  T.'s  position  the  other  day.  Mr. 
T.  expressed  himself  favorable  to  the  proposition 
to  make  surrogates  salaried  officers.  So  did  the 
gentleman.  And  the  gentleman  indulged  in  the 
same  train  of  remarks  in  relation  to  justices  courts 
that  Mr.  T.  did.  In  fact  throughout,  the  gentle- 


733 


man's  positions  and  his  own  were  precisely  the 
same.  Mr.  T.  confessed  to  his  astonishment  to 
find  himself  concurring  in  opinion  so  entirely 
with  the  gentleman  from  Otsego — and  much  more 
astonished  to  find  himself  classed  by  that  gentle- 
man with  those  who  were  opposed  to  reform. — 
Indeed,  so  entirely  coincident  were  their  views, 
that  had  Mr.  T.  made  his  remarks  after  the  gen- 
tleman had  made  his,  he  should  not  have  presen- 
ted them  without  giving  the  gentleman  credit  for 
them.  Mr.  T.  was  in  favor  of  legal  reform,  and 
had  he  ever  been  a  member  of  the  legislature,  as 
the  gentleman  had,  he  should  have  made  at  least 
an  effort  to  carry  out  his  views.  The  legislature 
had  done  much  in  this  way,  but  they  might  and 
should  have  done  more.  They  had  done  much 
by  the  non-imprisonment  act — and  there  gentle- 
men would  rind  the  long  looked  for  substitute  for 
a  creditor's  bill  in  chancery.  He  went,  in  a  word, 
for  the  largest  reform,  and  as  a  lawyer,  he  was  as 
much  interested  in  having  them  made,  as  any  lay- 
man could  be.  As  to  the  proposition  more  imme- 
diately before  the  house  in  regard  to  county  courts, 
there  were  several  projects  here  that  would  work 
well.  There  was  good  in  almost  all  of  them. — 
The  proposition  of  the  gentleman  from  Cattarau- 
gus  (Mr.  CROOKER)  would  answer  very  well  with 
some  modifications.  The  proposition  of  the  gen- 
tleman from  Orange  struck  him,  however,  more 
favorably. 

Mr.  <  HATFIELD  remarked  that  in  all  he  had 
said,  and  which  seemed  to. call  gentlemen  out  in 
explanation,  he  had  intended  to  speak  rather  ol 
ttie  effect  of  the  proposition*  than  of  tho*e  who 
advocated  th>  in.  Mr.  C.  at  some  length  pointed 
out  the  various  reforms  in  legal  practice,  which 
were  requited;  r.id  winch  he  supported  Among 
oilier  illustrations  as  showing  to  whal  extent  this 
reform  mi^hi  be  earned,  he  read  four  forms  ol 
declarations  he  had  hasiily  drawn  up  on  a  hall  sheet 
of  paper,  in  actions  on  a  note,  on  an  account,  foi 
as.sauit  and  battery,  and  lor  slander  as  follows: 

[Supreme  Court.] 

A.  B.  complains  that  G  D.  owes  him  the  amount  of  the 
following  note,  made  by  the  defendant: 

$100.  For  value  received,  I  promise  to  pay  A.  B.  or 
bearer  one  hundred  dollars,  with  interest,  ten  days  from 
date,  anl  claims  payment  of  the  same.  G.  D 

Aug.  -2-2d,  1M6.  C.  F.,  Att'y. 

[Supreme  Court.) 

A.  B.  complains  that  G.  D.  is  indebted  to  him  in  account 
of  which  the  following  are  the  items,  to  wit: 

To  1  bushel  wheat,  1  00 

1  sheep,  1  00 

1000  leet  pine  boards,  10  00 

12  00 
And  claims  payment  thereof.  C.  F.,  Att'y. 

[Supreme  Court  ] 

A.  B.  complains  that  G.  D.  on  the  1st  day  of  August, 
1846,  at  Albany,  struck  him  the  said  A.  B.  to  his  damage. 

C.  F.,  Att'y. 
[Supreme  Court.] 

A.  B  complains  tliat  G.  D.  on  the  10th  day  of  August, 
1846,  at  Albany,  spoke  concerning  the  said  A.  15  ,  the  lol- 
lowing  false  and  slanderous  words,  to  wit:— You  are  a 
thief  He  is  a  thirf.  Ho  stole  a  sheep.  He  stole,  and 
ought  to  go  to  state  prison.  To  the  damage  of  the  said  A .  B. 

C.  F  ,  Att'y. 

Mr.  C.  then,  to  contrast  those  forms  which  he 
contended  would  answer  ail  the  pnrpnsrs,  wilh 
the  present  inf.uuou-;  and  dirly  relic  of  barbar- 
ism now  in  use,  read  a  declaiahon  under  the  pre- 
sent 9\sU'ln,  fie  had  ha.sliiy  drawn  up. 


SUPREME  COURT.— [Oi  the  Term  of  January,  in  the 
year  one  thousand  eight  hundred  and  loi  ty-flve.J 
Otsego  Gounty,  ss. — John  Doe,  plaintift'in  this  suit,  by 
Richard  Roe  his  Attorney,  complains  ol  James  istiles,  de- 
butant in  this  suit,  by  the  him-  and  service  of  a  declara- 
tion and  not  by  a  writ  ol  a  plea  of  tiespass  on  the  case  — 
For  that  whereas  the  said  plaintiff  now  is  a  good,  true, 
and  honest  and  faithful  citizen  ot  this  state,  and  as 
as  such  hath  always  behaved  and  conducted  himself, 
and  had  deservedly  obtained  the  good  opinion  and 
esteem  of  all  his  neighbors,  and  other  good  and 
worthy  citizens  of  this  state,  to  whom  he  was  in  any 
wise  known,  to  wit,  at  the  city  of  Albany,  and  until  the 
committing  of  the  several  grievances  by  the  said  defendant 
as  hereinafter  mentioned,  the  said  plaintiff  had  not  been 
guilty,  or  been  suspected  to  be  guilty  of  the  crime  of  lar- 
ceny, or  any  other  such  crime;  yet  the  said  defendant  well 
knowing  the  premises,  but  greatly  envying  the  happy 
state  and  condition  of  the  said  plaintiff,  and  contriving  and 
falsely  intending  to  injure  the  said  plaintiffin  his  said  good 
name,  lame  and  credit,  and  to  bring  him  into  public  scan- 
dal, infamy  and  disgrace,  with  and  amongst  all  his  neigh- 
bors and  o'ther  good  and  worthy  citizens  of  this  state,  and 
to  vex,  harass,  impoverish,  and  annoy  him  the  said  plain- 
tin  heretofore,  to  wit,  on  the  22d  day  of  August,  1846,  in  a 
certain  discourse  which  the  said  defendant  then  and  there 
had  in  the  presence  and  hearing  of  divers  good  and  worthy 
citizens  at  Albany,  in  the  county  of  Albany,  lalsely  and 
malicously  spoke  and  published,  to,  of,  an.l  concerning  the 
said  plaintiff  these  false,  malicious  and  defamatory  words, 
following,  that  is  to  say:— You,  the  said  plaintiff  are  a 
thiel;  you  (the  said  plaintiff,  again  meaning)  st?le;  you 
(the  said  plaintiff  again  meaning)  stole  a  sheep;  you  (the 
said  plaintiff  again  meaning)  robbed  a  hen-roost;  you  (the 
said  plaintiff  again  meaning)  stole,  and  you  (the  said  plain- 
tiff ag  .in  meaning,)  ought  10  go  to  states  prison;  he  (the 
said  plaintiff  again  meaning)  is  a  thief;  he  (the  said  plain- 
tiff again  meaning)  stole;  he  (the  said  plaintiff  again  mean- 
ing) stole  a  sheep;  he  (the  said  plaintiff  a^ain  meaning) 
robbed  a  hen-roost;  he  (the  said  plaintiff  again  meaning) 
stole;  and  he  (the  said  plaintiff  again  meaning)  ought  to  go 
to  the  states  prison,  and  thereby  then  and  there  meaning, 
that  the  said  plaintiff  had  been  and  was  guilty  of  larceny. 
By  reason  whereof,  the  said  plaintiff  hath  been  greatly 
injured  in  his  said  good  name,  fame  and  credit,  and  hath 
been  brought  into  public  scandal,  infamy  ana  disgrace, 
with  and  amongst  all  his  neighbors  and  other  good  and 
worthy  citizens  of  this  state,  insomuch  that  divers  of  those 
neighbors  and  citzens  have  wholly  refused  to  have  any 
intercourse,  transaction  or  acquaintance  with  the  said 
plaintiff,  as  they  were  before  the  committing  of  the  said  se- 
ve  al  grievances  by  the  said  defendant  herein  before  men- 
tioned, used  and  accustomed  to  have,  and  otherwise  would 
have  had,  sustained  great  damage  to  wit:— Ten  thousand 
dollars,  and  therefore  he  brings  suit.  E.  F.,  Atty. 

*  Was  he,  (Mr.  C.  asked)  to  be  denounced  because 
he  supported  such  reforms  as  these.  The  pro- 
priety and  necessity  was  obvious  to  all  and  this  was 
what  he  was  desiring  and  striving  to  secure.  Mr. 
C.  then  went  into  an  examination  of  the  judiciary 
plan  introduced  by  Mr.  MARVIN.  He  urged  that 
it  was,  in  his  opinion,  open  to  the  very  same  ob- 
jections, and  in  a  much  stronger  degree,  which 
the  gentleman  had  himself  applied  to  the  report  of 
the  majority  of  the  committee.  He  (Mr.  M.) 
objected  to  the  majority  plan  as  introducing  too 
great  a  number  of  judges.  That  objection  appli- 
ed with  far  greater  force  to  the  gentleman's  own 
plan,  which  contemplated  an  army  of  one  hun- 
dred and  fifty  judges.  In  regard  to  what  had  been 
said  about  the  clerk's  officers,  Mr.  C.  insisted 
that  the  plan  of  the  judiciary  committee  did  not 
necessarily  contemplate  the  employment  of  eight 
clerks  ;  but  that  all  the  duties  supposed  to  de- 
volve on  them,  could  be  discharged  by  county 
clerks  under  legislative  regulation.  As  to  the 
county  court,  Mr.  C.  expressed  the  opinion  that 
it  was  necessary  to  give  it  a  jury  trial,  under  the 
plan  of  the  committee  ;  but  that  an  officer  acting 
as  Surrogate,  having  appeals  from  justices  courts. 


734 


and  performing  certain  chamber  duties,  would  be 
all  that  was  required. 

Mr.  STEPHENS  said  that  reference  had  often 
been  made  to  the  plan  of  a  county  court,  as  agreed 
upon  once  by  the  judiciary  committee,  but  it  had 
not  been  before  the  committee  in  a  distinct  shape. 
It  was  one  which  could  be  adopted  without  im- 
pairing the  harmony  of  the  plan  of  the  commit- 
tee, and  although  he  was  opposed  to  a  common 
pleas  court  himself,  still  he  would  present  it  to 
the  Convention,  as  the  best  one  to  be  adopted,  if 
it  was  determined  to  adopt  one  at  all.  Mr.  S. 
sent  up  the  following : 

^  1.  There  shall  be  established  in  each  of  the  counties  of 
this  state  a  court  of  common  pleas,  with  the  same  powers 
and  jurisdiction  which  now  belong  to  the  court  of  common 
pleas  in  the  several  counties  of  this  state. 

§2  There  shall  be  elected  in  each  of  the  judicial  districts 
of  this  state,  by  the  electors  thereof,  at  such  time  and  in 
such  manner  as  the  legislature  may  direct,  a  judge  who 
shall  be  known  as  the  president  judge  of  the  court  of  com- 
mon pleas,  for  the  district  in  which  he  shall  be  elected, 
who  may  hold  courts  of  common  pleas  in  any  ot  the  coun- 
ties of  the  state,  and  who  shall  hold  his  office  lor  eight 
years. 

Mr.  LOOMIS  was  taken,  he  confessed,  some- 
what by  surprise  by  the  quasi  report  of  the  judi- 
ciary committee,  and  he  took  this  occasion  to 
express  his  entire  dissent  from  any  such  proposi- 
tion. He  must  say  also  that  he  was  antonished 
at  what  seemed  to  be  the  backing  out  of  the  gen- 
tleman from  Orange  from  sustaining  the  report  of 
the  committee,  in  the  idea  advanced  by  him,  that 
the  courts  the  committee  had  proposed  might  be 
cut  up.  Mr.  L.  contended  that  the  plan  he  had 
submitted  for  a  county  court  was  in  perfect  con- 
sonance and  harmony  with  the  main  principles 
of  the  report  of  the  committee,  which  was  to  have 
one  general  court  of  original  jurisdiction  for  the 
trial  of  issues  of  fact  in  all  cases. 

Mr.  BROWN  denied  that  he  or  Mr.  STEPHENS 
intended  to  depart  at,  all  from  the  principle  o 
the  report  of  the  judiciary  committee.  He  had 
as  he  believed,  discovered  strong  indications  tha 
the  committee  were  disposed  to  have  a  count} 
court,  and  they  desired  to  present  a  plan  whicl 
they  preferred  to  either  of  the  other  propositions 
Mr.  LOOMIS  again  insisted  that  his  plan  dit 
not  contemplate  the  slightest  departure  from  tha 
of  the  committee.  Mr.  L.  went  onto  explair 
and  advocate  his  plan  as  preferable  to  the  om 
just  presented,  which,  in  his  opinion,  did  cori 
flict  with  the  report  of  the  committee. 

Mr.  MARVIN  replied  to  Mr.  CHATFIEI/D,  am 
in  defence  ot  his  plan  for  a  county  court.  H 
denied  that  it  proposed  the  increase  of  judicia 
force.  The  gentleman  from  Otse^o  had  ass<jrte 
for  leaving  out  his  associate  judges,  and  substitu 
ting  (or  them  justices  of  the  peace,  or  the  surro 
gate  and  justices  of  the  peace,  or  the  surrngat 
and  a  justice,  which  could  lie  done,  and  his  judi 
cial  force  would  be  less  than  that  proposed  by  th 
corn  rnit  tee. 

Mr.  NICHOLAS  wished  to  have  the  deliberat 
opinion  ot  the  judiciary  committee,  as  to  th 
number  of  circuits  which  \\nuld  be  held  uride 
their  system,  in  each  county.  If  four,  as  had  bee 
said,  it  would  materially  affect  the  question  of 
county  courr  with  original  jurisdiction. 

Mr.  JORDAN  said  that  the  number  of  circui 
a  year  in  each  county  would  be  entirely  withi 
t  .e  contiol  and  regulation  of  the  legislature.  A 


•  this  matter  of  county  courts,  il  the  convention 
lould  be  of  opinion  that  we  had  not  judicial 
)rce  enough  here,  it  might  be  advisable  to  adopt 
ther  of  the'plans  presented  by  Mr.  STEPHENS  or 
ROOSTER,  but,  that  of  Mr.  MARVIN'S  would  en. 
irge  the  entire  report,  and  induce  the  necessity 
ir  an  entire  remodelling  of  it.  As  to  the  clerk's 
(fices,  that  was  a  matter  of  detail  that  could  be 
ettled  or  left  to  the  legislature,  as  might  be  deem- 
d  advisable  when  we  come  to  details. 

Mr.   KIHKLAND    moved   that  the  committee 

ie.     Agreed  to, 

The  Convention  adjourned  to  9  o'clock  on  Mon- 


MONDAY,  (10th  day>}  August  24. 
Prayer  by  the  Rev.  Mr.  STEELE. 
Mr. 'KIRKL AND  presented   a  memorial  from 
e  trustees  of  Clinton  grammar  school,  Oneida 
o.,  on  the  subject  of  the  literature  fund.     Also, 
nemorials  from  citizens  of  Oneida  county  in  re- 
ation  to  the  rates   of  interest,   and  the   form  of 
eeds  and  mortgages.     They  were  severally   re- 
erred  to  appropriate  committees. 

Mr.  BASCOM  presented  a  petition  from  Che- 
lango  co.  respecting  the  organization  of  county 
ourts — which,  on  his  motion,  was  read  and  re- 
erred  to  the  judiciary  committee. 

MUNICIPAL  CORPORATIONS. 
Mr.  ALLEN  submitted  the  following  minority 
eport,  he  having  been  absent  when  the  majority 
if  committee  number  fourteen  reported : 
&  1.  No  special  act  for  incorporating  any   city   or  vil- 
age  shall  be  granted;  but  xhe  legislature  shall  pass  gene- 
"allaws   for  incorporating,  organizing  and  defining  tLe 
duties  and  powers  ol  cities  and  villages,  including  the  lol 
.owing  provisions: — 

^2.  For  the  opening,  widening  or  altering  streets  and 
ivenues,  in  incorporated  cities  and  vil'ages,  the  consent  of 
i  majority  of  the  persons  to  be  assessed  for  each  opening, 
widening  or  altering,  shall  be  necessary ;  and  the  asses.- 
mcnt  for  such  impio^  ement  shad  be  confined  to  the  street 
or  avenue  co  be  opened,  widened  or  alteied;  and  no  such 
assessment  shall  exceed  fifty  per  cent  of  the  value  of  the 
and  assessed. 

^3.  No  city  or  village  corporation  shall  borrow  mon?y 
on  the  ere  !ir  or  liability  of  such  city  or  village,  or  lend 
their  credit  to  others,  except  to  re\  el  invasion  or  suppress 
insurrection,  and  lor  other  purposes,  except  by  the  mi-inu 
mous  consent  of  every  member  elected  to  the  common 
council  ot  cities,  or  of  every  member  elected  to  the  board 
of  trustees  of  villages;  and  also,  unless  by  an  actof  the  le- 
gislature, or  prool  ol  su"h  unanimous  consent,  which  act 
shall  specify  the  object  of  such  law;  and  shall  provide  the 
waj  s  and  means,  by  directing  a  pro  rata  amount  of  the 
principal  of  such  debt  to  be  annually  asse-sed  on  and  col- 
lected trom'.the  estates,  real  and  personal,  in  such  city  or 
village,  as  a  sinking  iund  for  the  redemption  of  such  debt 
or  liability ;  'but  such  corporations  may  nevertheless  make 
temporary  loans  in  anticipation  of  tin  ir  annual  revenue, 
not  exceeding,  in  any  oneytar,  twenty -five  percent  of 
such  revenue,  or  for  a  longer  period  than  six  months. 

It  was  read  and  referred  to  the  appropriate 
committee  of  the  whole. 

HOURS  OF  MEETING 

Mr.  BROWN  offered  the  following  resolution  : 
llesolved,  That  on  and  after  to-morrow,  the  afternoon 
sessions  shall  commence  at  3  o'clock  P.  Al. 

Mr.  NI*COLL  moved  to  amend  so  as  to  com- 
mence the  morning  session  at  half-past  eight. 

Mr.  RICHMOND,  further  to  amend,  so  as  to 
commence  the  afternoon  sessions  at  half-past 
three. 

The  amendments  were  carried,  and  the  reso- 
lution as  amended  was  adopted;  so  the  hours  of 


735 


meeting  now  are  half-past  eight  A.  M.  and  half- 
past  three  P.  M. 

.SIMPLIFICATIONS  OF  PLEADINGS. 
Mr.  SHEPARD   ollered   the   following,   to  be 


added  to  the  judicary  report;  and  it  was  referred 
to  the  committee  of  the  whole  having  in  charge 
the  judiciary  reports : 

^  The  Legislature  shall,  at  as  early  a  period  as  practica- 
ble after  the  adoption  of  the  Constitution,  provide  by  law 
for  the  sirnplilicaiion  of  the  pleadings  and  practice  at  law 
and  in  equity. 

Mr.  J.  J.  TAYLOR  offered  the  following  addi- 
tional sections  : — 

^  It  shall  be  the  duty  of  the  first  Legislature  that  shall 
assemble  under  this  Constitution,  to  revise  the  practice, 
pleadings  and  proceedings  in  all  the  courts  of  justice, with 
the  view  to  rejfo:  rom  them  every  thing  useless,  to  pro- 
mote brevity,  clearness,  and  simplicity,  to  lessen  delays 
and  expenses,  to  provide  lor  the  amendment  of  pleadings 
and  proceedings  so  as  to  save  costs,  and  the  rights  of  par- 
ties, and  in  all  w;iys  to  further  justice.  It  shall  also  be  the 
duty  ot  the  Legislature,  as  otlen  as  once  in  live  years 
thereafter,  again  to  revise  such  practice,  pleadings  and 
proceedings  with  a  like  view. 

^  The  Legislature  may  provide  for  the  election  of  three 
commissioners,  to  revise  the  practice,  pleadings  and  pro- 
ceedings, in  all  courts  of  justice,  and  to  report  to  the  Leg- 
islature such  reforms  therein  as  shall  be  calculated  to  pro- 
mote brevity,  clearness  and  simplicity  in  such  practice, 
pleadin/s  and  proceedings,  to  lessen  the.  expense  and  de- 
lays of  litigation,  and  in  every  way  to  further  the  admin- 
istration ol  justice  to  the  best  advantage,  and  least  expense 
to  the  public  and  individuals. 

Mr.  W.  TAYLOR  offered  the  following  :— 
5)  The  Legislature  shall  have  discretionary  power  to  pro- 
vide by  law  for  abolishing  the  distinction  between  suits  at 
common  law  and  equity;  and  shall  from  time  to  time,  as 
may  be  necessary,  revise  the  forms  of  proceedings  in  all 
courts  of  justice,  with  the  view  to  reject  from  them  all 
useless  matter,  10  promote  simplicity  and  further  justice 
^  No  party,  in  any  civil  suit  or  proceeding,  shall  fail  ol 
relief  from  having  misconceived  his  action,  or  the  form  ol 
his  remedy;  but  it  shall  be  the  duty  of  the  Legislature  to 
provide  for  the  amendment  ol  proceedings  in  cases  where 
it  may  be  necessary  to  save  the  rights  of  parties. 

Some  explanations  were  made  by  Messrs. 
SHEPARD,  W.  TAYLOR,  J.  J.  TAYLOR, 
CHATFiELD,  TAGGAKT,  NICOLL,  HOFF- 
MAN, .MANX,  and  MURPHY. 

Mr.  TAGGART  then  moved  to  amend  Mr.  W. 
TAYLOR'S  resolution  so  as  to  make  it  mandatory 
on  the  Legislature,  instead  of  permissive. 

The  amendment  was  agreed  to,  and  the  proposi- 
tions were  ?ll  referred  to  the  committee  of  the 
whole  having  in  charge  the  judiciary  reports. 

Mr.WATERBURY  offered  the  following,  which 
had  the  same  ieferei.ce: 

Resolved,  That  there  shall  be  elected  by  the  people  one 
supreme  judge,  chosen  by  the  people,  whose  duty  it  shall 
be  to  simplify  the  pleadings  of  law  and  tquny,  and  bring 
in  unUon  the  proceedings  through  all  the  courts;  said 
judge  to  be  elected  once  in  three  }  ears. 
INCORPORATIONS. 

Mr.  MURPHY  offered  the  following,  which  he 
consented  should  lay  on  the  table: 

Resolved,  That  the  reports  of  the  several  committees 
on  incorporations  other  than  banking  and  municipal,  on 
currencj  an  1  banking,  and  on  the  organization  and  powers 
of  ciuYs  and  Incorporated  \ihages,  be  consecutively  con- 
sidered in  committee  o!  tin-  whole,  immediately  alter  the 
report  <f  the  committee  on  oa:.  improvements 

and  public  revenue*.  &.<?.  shall  be  dispo.-ed  of. 

EXPENSES  OK  GOVERNMENT. 
Mr.  STOW  ollVied  the  following: 

Resolved,  That  the  Comptroller  be  requested  to  report 
the  annual  expenditures  ol  the  government,  (other  than  for 
the  purposes  of  canals  and  rail  roads  and  works  connect- 


ed therewith,)  from  and  including  the  year  1817  up  to 
and  including  the  yrar  184;};  and  also  a  statement, 
showing  from  what  sources  the  money  thus  expended  was 
derived;  specifying  the  iummnts  reCelWd  and  expended  in 
•ii.-h  yiarjand  generally  the  oljects  or  purposes  lor  which 
such  expenditures  u  ere  made. 

The  hour  of  10  o'clock  having  arrived, 

Mr.  BROWN  called  for  the  order  of  the  day,  the 
judiciary  report. 

Mr.  STOW  hoped  the   gentleman  would  allow 
lution  to  be  adopted. 

Mr.  BROWN  was  afraid  it  would  lead  to  dis- 
cussion. 

Mr.  STOW  could  not  conceive  that  it  could 
possibly  lead  to  debate. 

The  PRESIDENT  said  it  could  only  be  con- 
sidered by  unanimous  consent. 

Mr.  HOFFMAN  objected,  and  the  resolution 
was  passed  over. 

THF.  JUDICIARY. 

The  Convention  then  went  into  committee  of 
the  whole  on  the  judiciary  reports,  Mr.  CAM- 
BRELENG  in  the  chair. 

Mr.  STRONG  sent  up  the  following  amend- 
ment to  the  llth  section  which  he  desired  to  have 
read : — 

"  They  shall  have  exclusive  jurisdiction  of  all  civil  ac- 
tions on  contracts  to  the  amount  of  one  hundred  dollars 
anil  concurrent  jurisdiction  1o  the  amount  o  two  hundred' 
and  fiity  dollars;  laws  shall  be  passed  to  abolish  appeals  as 
now  authorized,  from  courts  ol  justices  ol  the  peace,  and 
providing  for  further  trial  and  fiml  decision  in  such  cases 
in  the  same  town  where  the  first  trial  was  had,  or  in 
an  adjoining  town." 

The  amendment  pending  when  the  committee 
rose  on  Saturday,  was  then  announced. 

Mr.  W.  TAYLOR  said  he  presumed  when  one 
of  those  who  have  here  been  denominated  lay- 
men, rises  to  speak  upon  questions  pertaining  to 
the  judiciary,  legal  proceedings,  and  legal  reform, 
the  committee  would  be  relieved  from  any  appre- 
hension of  a  tedious  speech  as  to  its  length,  what- 
ever they  might  apprehend  in  other  respects. — 
He  had  listened  with  what  attention  he  had  been 
able  to  command  to  this  protracted,  and  he 
would  add,  very  able  and  learned  debate;  for 
he  had  not  been  unmindful  of  the  responsibili- 
ty of  his  place  in  the  Convention,  and  had 
been  anxious  that  the  votes  he  should  feel  it  his 
duty  to  give,  on  the  uilitientj*pi<  p<  smoi  s  htfore 
the  commitiee,  should  be  given  understanding!;)', 
and  in  such  a  manner  as  not  hereafter  to  he  *, 
source  of  regret  h 


himself,  or  dissatisfaction  to  his 
constituents  He  found  Jt  no  easy  matter  to 
corne  to  an  entirely  satisfactory  conclusion  upon 
ail  the  points  involved  in  this  most  important 
subject.  No  less  than  six  or  eight  different  pl-ns 
for  rt'-orgamzmg  our  judiciary  system  had  been 
minted  and  laid  upon  our  tallies,  most  of  which 
h;id  been  supported  with  much  zeal  and  learning. 
It  had  heen,  he  said,  resolved  to  lake  this  matter 
out  ot  committee  this  afternoon,  and  yet  but  one 
or  two  votes  h&d  been  taken  in  committee  upon 
this  whole  suhj.-ct.  One  important  point,  how- 
ever, had  been  settled  so  tar  as  the  committee 
ci.uld  settle  it.  It  had  been  decided  by  a  very 
large  majority  to  unite  t he  jurisdiction  in  law  and 
equity  in  oui  Supreme  CoUit.  i-'o  much  had  heen 
agreed  to,  at:d  \et  in  ibis  he  apprehended  the  lan- 
guage used,  would  not  permit  ail  the  changes  in  the 
system  which  might  be  desired.  So  far  as  the 
decision  goes  to  abolish  a  seperate  court  of  chan- 


736 


eery  he  had  great  confidence  that  it  was  na,ht. — 
He  believed  so  from  the  arguments  that  had  been 
used  here,  from  the  best  reflection  he  had  been 
able  to  give  the  subject,  and  from  the  opinion  of 
others  most  competent  to  jud*e.  But  a  few  days 
since  he  had  the  pleasure  to  meet  in  this  halt  a 
distinguished  gentleman  of  the  legal  profession 
from  the  State  of  Georgia,  with  whom  he  had 
formerly  had  some  acquaintance,  and  almost  the 
first  thing  he  said  to  him  was  this:  you  are  about 
to  make  a  most  important  improvement  in  your 
judiciary  system,  by  uniting"  in  one  court  your  law 
and  equity  proceedings  ;  we  have  tried  it  in  Geor- 
gia, and  it  works  well  ;  there  is  no  difficulty  at  all 
in  the  matter,  and  you  will  find  it  a  valuable  im- 
provement. He  had  also  recently  liad  conversa- 
tion with  a  gentleman  of  the  legal  profession  from 
the  State  of  Louisiana,  whose  opinion  was  simi- 
lar upon  this  subject,  and  who  added  that  he 
thought  we  should  do  well  to  go  further  and  have 
no  distinction  in  the  practice,  as  was  the  case  in 
that  State;  the  forms  of  proceedings  were  less 
technical,  more  plain  and  simple,  and  reached  the 
ends  of  jusi ice  in  a  more  direct  manner.  It  has 
been  said  here  that  in  those  states  where  a  sepa- 
rate court  of  chancery  does  not  exist,  difficulties 
and  embarrassments  are  experienced  in  some  of 
their  legal  proceedings  for  the  want  of  such  a  sys- 
tem as  ours,  which  is  regarded  as  superior1  to  any 
other,  and  anxiously  desired.  Can  this  be  so,  sir  ? 
Then  how  has  it  happened  that  no  steps  have 
been  taken  to  adopt  it  ?  The  State  of  Louisiana 
has  recently  revised  her  Constitution,  a  State 
where  .no  distinction  exists  between  equity  and 
common  law,  either  in  the  construction  of  her 
courts  or  the  forms  of  practice,  and  yet  the  peo- 
ple are  contented  with  it,  and  no  movement  made 
to  change  it.  He  apprehended  there  was 
some  mistake  in  this  matter.  He  admitted 
it  was  but  natural  that  gentlemen  should  be  wed- 
ded  to  a  system  in  which  they  had  been  educated, 
and  attached  to  forms  which  they  had  long  prac- 
ticed, and  perhaps  but  natural  that  they  should 
be  prejudiced  against  innovation,  even  should 
that  innovation  promise  some  salutary  improve- 
ments. . 

The  people  desired  reform ;  they  desired  to  see 
the  useless  forms,  the  fictions,  and  the  unneces- 
sary technicalities  of  legal  proceedings  done  away 
with  ;  they  wished  to  see  things  called  by  their 
right  names,  and  more  plainess  and  simplicity  in- 
troduced ;  they  wished  to  prevent  unnecessary 
delavs,  to  lessen  the  expense  and  cheapen  the  ad- 
ministration of  justice.  All  this  they  hoped,  they 
expected,  and  would  not  be  satisfied  without  it. 
Why,  sir,  specimens  of  the  useless,  and  he  had 
almost  said  senseless  jargon  of  some  of  the  forms 
of  le"-al  proceedings  had  been  exhibited  here  by 
several  gentlemen,  and  justly  held  up  to  ridicule, 
which  he  supposed  might  have  had  their  origin 
in  the  dark  ages,  in  the  school  of  metaphysical 
subtleties  and  technical  absurdities,  where  an 
elaborate  syllogism  would  be  gravely  put  forth  to 
prove  that  a  possibility  differed  from  an  impossi- 
bility He  believed  the  delays  and  the  expense 
in  chancery  proceedings  had,  from  some  cause, 
been  more  complained  of  than  any  other.  A 
gentleman  from  Onondaga  county,  in  a  recent 
conversation  upon  this  subject,  stated  that  he  had 
in  the  hands  of  the  Chancellor  sixty-five  dollars, 


which  he  wanted,  and  applied  to  a»  lawyer  to  ob- 
tain it  for  him,  and  which  he  supposed  would 
cost  but  a  few  dollars.  Some  time  after,  he  call- 
ed for  his  money,  and  was  informed  by  the  law- 
yer that  the  money  had  been  obtained,  and  also 
;hat  there  was  a  bill  of  costs  for  him  to  pay  of  an 
mndred  dollars.  The  lawyer,  moreover,  very 
undly  agreed  to  compromise  by  taking  the  sixty - 
ive  dollars  for  the  trouble  of  getting  it,  leaving 
the  gentleman  to  reflect  upon  the  advanta- 
ges of  a  system  which  afforded  such  admirable 
acilities  for  transferring  his  own  money  from  the 
;he  hands  of  a  public  officer  to  the  pocket  of  his 
Lawyer.  He  also  stated  that  he  had  been  a  joint 
owner  with  some  heirs  of  an  estate  to  a  small  lot 
of  land  in  Syracuse,  and  one  of  the  heirs  desiring 
a  partition  of  the  lot,  applied  to  an  attorney  to 
get  the  business  done  for  him.  The.  gentleman 
said  he  called  on  the  attorney  to  enquire  what  the 
expense  would  be,  and  was  answered  about  forty 
or  fifty  dollars,  perhaps  sixty,  not  more  than  six- 
ty-five. Well,  in  due  time  the  partition  was  ef- 
fected, and  a  bill  of  costs  charged  of  about  two 
hundred  and  eighty  dollars.  Now,  without  know  - 
ng  what  the  proceedings  and  costs  should  have 
been,  conducted  in  the  most  economical  manner, 
he  could  well  conceive  what  the  law,  in  his  judg- 
ment, should  direct  in  such  a  case.  Application 
should  be  made  to  the  judge  of  the  county  court, 
who  upon  examining  the  subject,  should  appoint 
a  commission  of  two  or  three  discreet  men  to 
make  the  partition  in  a  just  and  equitable  man- 
ner, and  their  decision  should  be  recorded  in  the 
county  clerk's  office,  and  that  should  be  the  end 
of  the  matter ;  and  all  this  could  be  accomplished 
in  a  few  days,  and  at  an  expense  of  not  more  than 
twenty  or  twenty-five  dollars  at  the  most.  The 
attention  of  the  people  has  been  for  some  time 
directed  to  these  things,  and  they  have  demanded 
a  reform  in  such  tones  as  must  and  will  be  obey- 
ed. The  evils  complained  of,  so  far  as  they  have 
grown  out  of  the  organization  of  our  judiciary 
system  and  the  want  of  sufficient  force  to  do  the 
business,  he  trusted  would  be  corrected  by  this 
convention ;  and  the  legislature  and  the  courts 
must  perfect  the  work.  The  taking  away  the 
fees  and  perquisites  of  judicial  officers,  and  lop- 
ping off  examiners  in  chancery,  would  do  much 
to  diminish  cost.  Other  corrections  in  this  res- 
pect by  the  legislature,  and  revising  and  simpli- 
fying rules  and  forms  of  proceeding,  so  as  to  make 
them  plain  and  simple,  would  be  a  still  further 
improvement.  Forms  and  rules  must  exist; — 
forms  are  essential  to  the  substance,  but  let  them 
be  significant ;  rules  are  necessary  to  order  and 
despatch  of  business,  but  let  them  be  such  as  are 
calculated  to  promote  those  objects.  With  all 
the  improvements  that  can  be  made,  the  adminis- 
tration of  justice  must  be  expensive.  We  must 
have  a  sufficient  number  of  judges  qualified  and 
competent  to  do  the  business,  who  must  be  libe- 
rally compensated ;  we  must  have  lawyers,  men 
educated  to  the  profession,  who  must  be  reasona- 
bly paid  for  their  services,  for  he  did  not  expect 
these  things  were  to  become  so  plain  and  simple 
that  every  man  would  become  his  own  lawyer, 
any  more  than  we  expected  every  man  to  become 
his  own  physician.  But  he  did  expect  an  im- 
provement in  both  respects;  he  did  expect  the  time 
would  come  when  many  diseases  of  the  organised 


737 


man,  and  of  the  organized  society,  would  be  more 
successfully  prevented  or  removed  by  very  sim- 
ple means,  perhaps  within  the  knowledge  and 
reach  of  all.  He  did  expect  the  time  would  come 
when  that  golden  rule,  that  common  law  Chris- 
tian principle,  so  happily  alluded  to  by  the  gen- 
tleman from  Erie,  (Mr.  STOW)  in  illustration  of 
his  argument,  which  requires  us  to  do  unto  others 
as  we  would  they  should  do  'unto  us,  would  be- 
come more  universal  in  its  practical  influence 
upon  the  conduct  of  men. 

The  gentleman  from  Tioga  (Mr.  J.  J.  TAYLOR) 
said  the  other  day,  that  retaining  ,the  words 
*' jurisdiction  in  law  and  equity,"  in  the  3d  sec- 
tion, would  prohibit  the  legislature  from  abolish- 
ing the  distinction  which  exists  in  the  rules  of 
practice,  that  the  forms  of  proceedings  would  of 
necessity  be  continued  separate  and  distinct. — 
This  he  knew  was  the  opinion  of  some  others, 
and  under  the  impression  that  such  would  be  the 
effect,  he  had  voted  for  the  amendment  of  the 
gentleman  from  Kings,  (Mr.  SWACKHAMMER,) 
{'or  he  desired  to  see  the  experiment  made  to  abo- 
lish this  distinction  ;  he  desired  the  legislature 
and  the  courts  should  have  no  constitutional  res- 
triction in  the  way  of  making  an  effort,  gradually 
if  necessary,  to  assimilate  the  different  modes  of 
proceedings.  And  now  he  had  offered  the  amend- 
ment this  morning,  which  authorised  the  legisla- 
ture to  abolish  the  distinction.  It  has  also  been 
suggested,  not  by  any  member  of  the  convention 
that  he  was  aware  of,  but  by  others  competent  to 
judge,  that  by  regulations  of  the  court  the  princi- 
ciple  of  the  division  of  labour,  which  has  been 
urged  here  as  a  strong  argument  in  favor  of  the 
separate  court  of  chancery,  might  still  be  pre- 
served under  the  plan  of  the  committee,  by  con- 
ferring upon  a  part  of  the  court  the  chancery  bu- 
siness. If  this  is  so,  it  may  not  be  regarded  as 
constituting  an  objection  to  the  plan,  certainly 
not  by  some,  for  viewed  in  this  light  it  is  calcu- 
lated to  deprive  the  opponents  of  the  measure  of 
one  of  their  strong  points  of  opposition  To  what 
extent  this  may  be  carried  in  the  working  of  the 
system,  and  what  were  the  views  upon  this  point 
of  the  majority  of  the  committee  who  reported 
the  plan,  he  was  not  informed.  If  the  system 
possesses  that  elasticity  that  it  can  accommodate 
itself,  or  be  accommodated  by  law  to  circumstan- 
ces, and  become  either  the  one  thing  or  the  other 
in  this  respect,  it  may  be  a  feature  that  will  com- 
mend it  to  favor.  He  had,  however,  supposed 
that  by  uniting  law  and  equity  jurisdiction  in  one 
court,  each  and  every  member  of  the  court  would 
be  both  a  law  and  an  equity  judge,  so  long  as  the 
distinction  is  kept  up,  that  it  must  of  necessity 
be  so  at  the  trial  of  causes  at  the  circuits,  and  that 
the  natural  tendency  of  the  working  of  the  sys- 
tem would  be  to  assimilate  the  practice. 

This  committee  having  disposed  of  the  3d  sec- 
tion for  the  present,  had  very  properly  gone  to 
the  consideration  of  the  question  of  county  courts; 
for  upon  the  establishment  and  construction  of 
these,  would  depend  to  some  extent  the  organi- 
zation of  the  supreme  court,  particularly  as  to  the 
number  of  judges  which  would  be  required.  Se- 
veral propositions  had  been  made  on  this  subject. 
•The  judiciary  committee  propose  to  abolish  these 
courts  as  at  present  organised.  The  gentleman 
from  Chautauque  (Mr.  MARVIN)  proposed  to  elect 


ay  districts  president  judges,  each  of  whom  shall 
hold  the  county  courts  in  the  several  counties  of 
which  his  district  is  composed,  and  to  elect  two 
judges  in  each  county.  The  gentleman  from 
attaraugus  proposes  to  elect  one  county  judge, 
who  shall  perform  the  duties  of  surrogates,  The 
special  duties  ordinarily  conferred  on  county 
judges,  the  trial  of  criminal  cases  of  a  limited  de- 
gree, and  appeals  from  justices  courts.  He  pre- 
ferred the  latter  plan,  with  perhaps  some  modifi- 
cation, for  the  reason  that  he  was  disposed  to  adopt 
the  plan  of  the  majority  report  of  the  judiciary 
committee,  as  to  the  number  of  the  judges  of  the 
supreme  court.  The  estimates  which  have  been 
made  by  the  chairman  and  some  othw  members 
of  that  committee,  went  to  show  that  the  number 
proposed  would  be  able  to  do  all  the  business 
heretofore  done  by  the  district  and  county  courts, 
and  have  ample  time  for  the  requisite  number  of 
courts  in  bane  in  each  district.  Other  gentlemen 
thought  differently,  but  he  was  inclined  to  rely 
upon  the  estimate  of  the  chairman,  whose  expe- 
rience in  these  matters  qualified  him  to  judge. 

If  then  the  judges  of  the  supreme  court  can  do  all 
the  business  required,  can  hold  as  many  courts 
in  each  county  as  may  be  necessary,  then  we  shall 
have  the  best  county  courts  we  possibly  can  have, 
courts  in  which  the  public  can  have  confidence* 
and  at  less  expense  to  suitors  than  our  county 
courts  as  at  present  organized.  He  thought  the 
people  would  prefer  this,  provided  there  was  force 
enough  to  do  the  business  with  nee*dful  despatch. 
The  plan  of  the  gentleman  from  Chautauque,  (Mr! 
MARVIN,)  although  it  has  many  things  to  com- 
mend it,  is  objectionable  in  some  respects.  It 
would  increase  the  number  of  judges  in  the  ag- 
gregate, and  although  suitable  men  might  be  se- 
lected as  district  judges  of  the  county  courts,  it 
would  still  be  an  inferior  tribunal,  in  which  the 
public  would  not  be  likely  to  have  as  much  con- 
fidence as  in  the  higher  courts,  and  hence  might 
give  rise  to  more  frequent  appeals.  Adopt  the 
plan  of  the  judiciary  committee  as  to  the  court  of 
appeals  and  the  supreme  court,  and  add  for  the 
county  courts  something  like  the  proposition  of  the 
gentleman  from  Cattaraugus,  with  a  provision  for 
theeleciion  oi  an  aaM^iaie jud^e  in  those  counties 
where  the  business  rnijjht  require,  and  authoriiy 
to  the  legislature,  say  alter  two  years, to  confer  upon 
ihe  county  courts  original  jurisdiction  in  civil 
causes,  which  would  yive  sufficient  time  to  ascer- 
tain the  necessity  lor  .such  a  measure,  to  become 
satisfied  as  to  the  ability  of  I  he  judges  of  the  Su- 
oreme  Court  to  do  all  the  business  which  would 
be  devolved  upon  them,  and  it  appeared  to  him  it 
would  present  a  plan  tor  a  judiciary  system  as  sim- 
ple, economical,  and  efficient  as  can  well  be  de- 
vised. Some  kind  of  a  county  court  seemed  to 
ba  indispensibly  necessary.  The  vast  amount  of 
special  business,  enumerated  by  the  gentleman 
from  Oneidii,  (Mr  KIRKLAND,)  which  ia  devolv- 
ed upon  the  county  judges,  must  be  performed  by 
some  local  officers,  ana  the  distribution  of  those 
p;>wers  as  was  proposed  by  the  gentleman  from 
S  ineca,  (Mr.  BASCOMB)  would  be  attended  with  in- 
c  mvenience  to  the  public,  arid  a  proper  discharge 
of  the  duties  would  not  be  as  well  secured.  Each 
county  must  have  a  surrogate,  and  if  he'  is  (he 
judge  of  the  county  court  as  is  proposed,  the  ex- 
pense so  Jar  would  not  be  much  increased.  It 

67 


738 


has  been  objected  to  making  the  surrogate  a  sala- 
ried officer,  thereby  throwing  upon  the  counties 
the  burden  of  that  court  which  should  be  paid  by 
those  who  have  business  before  it.  To  this  he 
would  say,  that  if  any  court  should  be  a  cheap 
one,  it  should  be  that  where  the  widow  and  the 
orphan  are  obliged  to  come.  The  expense  of 
this  court  is  often  onerous  in  a  high  degree  in  the 
settlement  of  small  estates,  burdensome  to  those 
who  are  the  least  able  to  bear  it ;  and  the  expense 
of  this  court  was  an  evil  complained  ot»  and  much 
needed  correction.  The  remedy 'would  be  found 
in  giving  the  surrogate  a  fair  salary,  and  exacting 
but  a  small  lee  tor  services  performed,  which 
should  be  paid  into  the  county  treasury  to  help 
make  up  the  salary.  This  would  be  an  important 
reform. 

He  had  but  a  few  words  more  to  say,  and  he 
would  take  his  seat.  He  hoped  to  see  the  propo- 
sition  adopted  for  the  establishment  of  courts  of 
conciliation  The  idea  when  first  suggested  here, 
had  bee.n  scouted  by  some  gentlemen,  but  he  was 
happy  to  believe  it  had  now  many  friends  in  the 
Convention.  The  plan  was  worthy  a  trial ;  it  was 
benevolent  and. noble  in  its  conception,  and  praise- 
wprthy  in  its  objects,  and  he  did  not  doubt  it 
would  become  popular  and  save  a  vast  amount  of 
litigaiion.  The  better  part  of  community,  men 
who  are  not  litigious  in  their  habits,  would  resort 
to  such  a  court  to  seitle  their  diiierences,  which 
would  be  attended  with. but  little  expense  or  trou- 
ble; and  these  would  encourage  others  to  go  and 
do  likewise,  until, in  a  certain  class  ot  cases,  men 
would  bt;  regarded  as  disposed  to  be  quarrelsome 
who  would  not  submit  their  differences  with  their 
neighbors  to  this  amicable  mode  qf  settlement: ; 
and  he  doubled  not  its  influence  would  be  most 
salutary  in  neighborhoods  and  society  generally. — 
He  therefore  hoped  to  see  the  plan  adopted. 

Mr.  MANN  said  that  he  had  a  few  remarks  to 
make  upon  the  report  under  consideration,  and 
some  propositions  to  offer  in  committee,  in  order 
that  the  propositions  might  be  acted  upon  in  Con- 
vention. He  was  aware  that  it  would  not  now  be 
in  order  to  propose  amendments  to  the  report  un- 
der discussion,  but  the  third  section,  more  imme- 
diately under  consideration,  as  now  amended,  he 
considered  a  very  dangerous  one,  and  created  a 
judiciary  power  entirely  beyond  the  control  and 
reach  of  the  people.  He  believed  the  laymen  of 
the  Convention,  as  well  as  most  of  the  profession, 
were  in  favor  of  abolishing  the  Court  of  Chance- 
ry as  at  present  organized,  and  giving  equity  pow- 
ers to,  and  blending  law  and  equity  in  other 
courts  of  record.  He  would  ask  gentlemen  if 
there  was  not  danger  in  doing  this,  as  proposed 
by  this  third  section  as  it  now  stood  3  would  they 
not  create  thirty  or  forty  little  monsters  instead  of 
the  one  great  monster  which  it  was  proposed  to 
destroy  ?  He  thought  there  was  great  danger  of 
doing  this,  if  this  section  was  allowed  to  remain 
as  it  was;  but  he  proposed  to  amend  it,  and  would 
read  in  his  place  this  amendment  to  be  added  to 
the  section,  "  Subject  to  such  restrictions  anc 
regulations  as  shall  be  from  time  to  time  prescri- 
bed by  the  legislature."  The  judiciary  powers 
here  created  without  any  check  or  defining  of  its 
powers,  gentlemen  would  find,  to  far  outstrip  any 
of  its  predecessors  in  mischief  and  oppression 
should  the  Convention  adopt  it  as  it  is.  And  he 


call  upon  the  laymen  of  this  house,  an*-* 
varn  them  to  reflect  arid  pause,  before  thc-y  len^ 
heir  aid,  or  supported  a  section  that  was  so  dan- 
erous, and  to  his  mind  so  replete  and  full  of 
mischief.  If  the  section  was  to  stand  as  it  now 
s,  the  amendment  he  proposed  would  place  this 
unlimited  section  and  power  where  the  people, 
'hrougli  their  representatives,  when  the  neccssi- 
ies  of  the  case  required  it,  could  have  a  control- 
ng  power  over  its  actions. 

There  had  been  several  propositions  introduced 
;his  morning  by  way  of  resolutions  and  sections, 
ivhich  if  any  one  or  all  of  them  were  adopted,might 
)bviate  the  difficulty,  it  was  apparent  to  his  mind 
o  be  very  mischievous  and  full  of  danger.  Whe- 
;ner  any  of  those  propositions  would  be  consider 
ed  and  adopted  by  the  committee,  he  was  unable 
o  determine,  and  should  therefore  adhere  to  the 
imendment  he  had  offered,  and  hoped  and  trust- 
ed that  the  Convention  would  adopt  it.  The  gen- 
leman  from  Kings  had  proposed  an  amendment 
which  he  had  desired  to  see  adopted,  but  it  had 
ailed,  which  rendered  it  more  necessary  to  have 
some  amendment,  whereby  the  people  could  con- 
trol the  action  of  this  tribunal.  He  would  ask  if 
any  gentleman  supposed  that  the  unrestrained  and 
unlimited  power  conceded  by  this  section  as  it 
stood,  could  or  would  be  kept  within  any  reason- 
able or  ordinary  bounds,  in  their  course  of  pro- 
ceedings. He  thought  not.  You  create  an  un- 
limited judicial  power  like  this,  his  word  for  it, 
the  members  of  this  Convention  would  rue  the 
day  that  they  had  favored  or  supported  such  a 
measure,  thereby  creating  a  despotism  to  rule 
over  the  people.  Who  was  to  decide  to  what  ex- 
tent this  court  might  go ;  none  but  the  judges 
placed  upon  the  bench.  Would  they  not  pre- 
scribe their  own  rules  and  regulations,  and  by 
degrees  usurp  to  themselves  a  gigantic  power  over 
the  destinies  of  the  whole  people,  not  to  be  resist- 
ed by  them  ;  and  why,  because  the  people  through 
their  representatives  here,  have  unalterably  fixed 
the  authority  of  this  court,  and  parted  with  their 
right  to  restrain  or  restrict  its  authority. 

The  third  section  is  a  short  one,  but  it  is  very 
significant  in  its  meaning  and  phraseology,  as 
well  as  dangerous,  without  further  amendment. 
In  his  opinion  there  should  be  some  controlling 
power  of  the  people  over  this  court,  and  all  oth- 
er judicial  tribunals  created  by  this  Conven- 
tion. The  amendment  he  had  offered  would  ef- 
fect this  object,  and  he  should  bring  it  forward 
in  its  order ''at  the  proper  time,  and  hoped  to  see 
this  addition  made  to  the  section  or  the  section 
stricken  out  and  a  better  one  substituted  in  its 
place  Mr.  M.  said  in  making  the  few  remarks 
he  had  made  and  those  he  intended  to  make  be- 
before  he  took  his  seat,  were  predicated  upon 
the  presumption  that  the  majority  report  of  the 
judiciary  committee  was  to  be  the  basis  from 
which  a  judiciary  system  was  to  be  formed. 

Mr.  SHEPARD  :  "Will  my  colleague  allow 
me  to  ask  him  whether  the  report  of  the  majority 
provides,  or  any  where  near  provides  a  sufficient 
amount  of  judicial  force  to  do  the  necessary  busi- 
ness of  the  city  of  New  York." 

Mr.  MANN  replied,  that  the  judiciary  report 
of  the  majority  had  excepted  New  York  from  the 
general  provision,  giving  to  New  York  a  force 
proportionate  to  their  population,  which  he 


739 


deemed  might  be    inadequate  to   transact  the  ju> 
dicial  business  of  the   city   promptly  and  efFect- 

.  but  from  the   suggestions   and  expressions 
>,  he  was  satisfied  that  they  were  dis- 
posed, and  would,  leave  the  organization  and  in- 
crease of  the  judicial  force  for  -the  city,   to  the 

-Uture,  to  meet  the  wants  of  the  people — 
that  there  appeared  to  be  no  disposition  on 
the  part  of  the  Convention  to  give  New 
York  city  au  inadequate  judicial  force. — 
With  this  view  that  the  majority  report  was  to  be 
made  the  basis  of  the  system,  he  had  prepared  a 
number  of  amendments.  He  had  examined  the  re- 
ports of  the  minority,  and  in  fact  all  the  numer- 
ous reports  submitted  to  the  Convention  upon  the 
judiciary,  and  he  for  one  tendered  to  the  gentle- 
men who  had  presented  them,  his  thanks,  and 
was  much  obliged  to  them  for  the  labour  and 
attention  bestowed  upon  the  subject.  All  of  the 
reports  contained  many  excellent  provisions,  and 
were  entitled  to  the  consideration  of  the  Conven- 
tion. The  report  under  consideration  at  the  time 
did  not  meet  his  (Mr.  M's)  views  in  many  respects, 
and  could  not  have  his  support  without  very  es- 
sential and  material  alterations.  The  report  of 
the  majority  could  be  made  to  suit  him,  but  it 
would  require  many  erasings  and  some  matter  ad- 
ded and  inserted,  before  (in  his  opinion,  from  the 
knowledge  he  had  of  member's  views  on  the  sub- 
ject,) they  would  vote  to  sustain  it.  The  amend- 
ments he' had  drawn,  he  would  read  in  his  place 
as  it  would  not  be  in  order  to  ofler  them  now.  The 
second  section  had  been  passed  over  by  the  com- 
mittee, but  he  had  prepared  an  amendment  to  this 
section,  to  obviate  some  of  the  difficulties  com- 
plained of:  since  he  had  done  so,  he  was  inform- 
ed by  one  of  his  colleagues  that  the  gentleman 
from  Albany  had  suggested  the  same  thing,  and 


would  oiler  thus  to  -amend  the  section, 
tk-mari  from  Albany  not  being   in   his 


The  gen 
place  he 


would  read  the  proposition,  vi/..  strike  out  and 
, .  so  that  the  section  would  read :  "  There 
shall  be  a  court  of  appeals,  composed  of  8  judges, 
who  shall  be  elected  by  the  electors  of  the  State 
fore..  selected  from  the  class  of  justices 

of  the  supreme  court,  having  the  shortest  time  to 
;  provisions  shall  be  made  by  law  for  select- 
ing surh  justices  of  the  supreme  court,  from  time 
to  time  ami  for  so  classifying  those   elected   that 
iiall  be  ekcted  every  second  year.     A   chief 
o  shall  be  elected   by  the   electors   of  this 
State,  who  shall  hold  his   oflice  for  4  years  and 
shall  preside  over  tiie  judiciary  of  the   State  ;    it 
shall  be   his   duty  to  prescribe  forms  and    rules 
"i    jiruclice    in    the    supreme    and    all     subor- 
«l;n.i;e   com  is,  and    sucn     ioims  and    rules    shall 
plain,  ;itid    concise — express   the  sub- 
ject ;  -':npi'.'  I  acts  requisite,  and  nothing 


criminal  jurisdiction  may  be  established  by  the 
Legislature,  and  writs  of  error  therefrom  may  be 
brought  to  the  supreme  court  or  court  of  appeals, 
as  shall  be  provided  by  lavv.5> 

This,  (13th  section)  as  it  gives  the  Legislature 
unlimited  power  to  create  all  and  jiny  civil  courts, 
as  well  as   criminal;  which   he  was   unwilling   to 
extend  or  give   to  the  Legislature.     The  section 
as  proposed  to  be  amended,  would  give  the  Lfgis. 
lature    power   ta  create   criminal   courts,  which 
would  be  found  necessary  in  cities  where  they  had 
no  police  courts  at  present  ;  and  cities  to  be  crea-  • 
led  might   require  such  couits.      Beyond  this  he 
would  not  go.    He  desired  to  name  the  civil  courts 
here,  to  be  created,  and  have  their  powers  defined 
as  far  as  possible  by  this  Convention,  and  not  leave 
t  to  the  Legislature  to  create  as  many  and  every 
court   they  thought   proper   to  create.     The  15th 
section  he    proposed  to   amend,  which    relates  to 
the   election    of  justices  of  the  peace*   and  jus- 
tices  courts   and   their  jurisdiction — so  that  the 
section  as   he  proposed  to  amend  it  would  read 
— "  The  electors  of  the  several  towns  and  wards 
shall,  at  their  annual  town  meetings  and  munici- 
pal elections,   and  in  such  manner  as  the  legisla- 
ture may  direct,  elect  their  justices  of  the  peace, 
whose  term  of  office  shall  be  four  years.     Their 
number  and  classification  may  be  regulated  by  law. 
Their  exclusive  civil  jurisdiction  shall   be  $'50, 
their  concurrent  civil  jurisdiction  shall  be  $250, 
but  in  all  civil  suits  or  actions  brought  in  a  court 
of  record,  the  plaintiff  bringing  any  such  suit  for 
the  sum  of  $ —  or  less,   shall   not  be  entitled   to 
recover  any  greater  amount  of  costs  from  the  de- 
fendants than  could  have  been  recovered  on  a  trial 
of  the  same  cause  before  a  justice  of  the  peace; 
and  in  cases  of  appeals  (in  such  cases)  by  either 
party  from  a  justices  court  to  a  court  of  record,  or 
from  one  court  of  record  to  a  higher  one,  no  grea- 
ter amount  of  costs  shall  be  allowed  than  would 
have  occurred  in  a  justices  court  on  such  trial  of 
appeal." 

This  15th  section,  as  he  (Mr.  M.)  proposed  fo 
amend  it,  would  prevent  a  great  amount  of  litiga- 
tion ;  and  if  persons  having  demands  to  collect, 
desired  to  do  so  at  a  small  expense,  this  would 
but  if  suitors  would 


perfecily  veiling  and  would  be 
(he  care  of 


^i.id  lo  hand  inj,  |,roj);,sn  ion  over  to 
Ihe  gentleman  from  Ainany,  bi-lieving  him  {as  he 
was  t.  IM  ou  .--'inndi  man)  io  be  quite  as  competent, 
if  not  mme  M/,  than  himself,  to  present  an  amend- 
ment which  would  tiled  the  object  he  had  in 
VH  w.  He  pit 
judiciary 


ID  amend  the  i3th  sec;ion  — 
(-•omtntiu.-e    had  in    the  3d  section 


abolished  the  courts  ot  erior  and  chancery,  and 
in  the  K'ih  SiOii<m  had  abolished  the  county 
couttg,  atao.  ilf  prt>u<  ••(•.,!  t.  >;:incnd  the  13th  SL-C- 
liou  so  that  it  would  ieuU  :  **  Interior  cuufts  ot 


give  them  the  opportunity ; 
go  into  the  higher  courts,  when  they  could  obtain 
their  j  udgment  at  a  small  expense,  they  should 
be  made  to  pav  the  extra  costs  and  expenses.  It 
had  been  objected  to  by  many,  that  suitors  had 
not  sufficient  confidence  in  the  justices  to  bring 
their  suits  before  them.  Then  he  would  allow 
them  to  go  to  the  courts  of  record.  But  if  they 
would  go  there,  let  them  pay  the  extra  expenses 
they  would  incur.  Should  this  convention  de- 
cide upon  establishing  a  county  court,  then  a  ma- 
terial change  will  be  requisite  in  the  force  pro- 
posed by  the  committee's  report ;  for  the  Supreme 
Court,  if  a  county  court  is  to  be  so  organized  for 
the  State  as  to  do  a  large  proportion  of  the  judi- 
cial business,  a  small  force  only  will  be  required 
for  the  Supreme  Court — much  less  at  least  than 
is  now  proposed.  Ho  had  hoped  that  this  ques- 
tion would  have  been  settled  before  this,  whether 
we  were  to  have  a  county  court  or  not.  He  was 
of  opinion  that  such  a  court  might  well  be  dis- 
pensed with,  and  save  much  expense  to  the  coun- 
ties ;  but  he  was  willing  to  leave  that  matter  to 
the  decision  of  the  members  from  the  interior ;  if 


740 


they  deemed  it  necessary  to  have  such  a  court  for 
the  interior  counties,  he  should  not  object  to  it. 
As  to  the  rules  and  practice  of  the  courts  as  at 
present  organized,  a  great  deal  had  been  said  by 
the  profession  and  laymen  about  the  abuses  of 
the  practice  as  it  now  exists.  The  ridiculous 
special  pleadings,  long  declarations  and  tomfool- 
ery now  in  use,  had  been  fully  and  fairly  exposed 
and  shown  up  here.  The  gentleman  from  Otse- 
go  in  his  remarks  on  Saturday,  had  drawn  a  faith- 
ful and  true  picture  of  these  ridiculous  practices, 
so  long  submitted  to  by  the  people.  It  was  un- 
necessary for  him  to  say  more  on  that  subject. — 
He  desired,  in  the  judiciary  system  which  we 
were  about  to  adopt,  to  see  it  so  constructed  as  to 
produce  an  expeditious  decision  of  judicial  pro- 
ceedings; that  these  proceedings  should  be  cheap, 
plain  and  simple  in  all  their  details,  and  suited  to 
the  exigencies  of  the  people,  to  conform  to  the 
common  sense  understanding  of  every  man  in  the 
community — and  from  what  he  had  seen  and  heard 
expressed  by  members,  he  was  constrained  to  be- 
lieve that  the  Convention  were  anxious  and  de- 
sirous of  producing  such  a  system.  Before  he 
took  his  seat  he  would  again  call  the  attention  of 
the  Convention,  and  particularly  the  lay  members 
to  the  third  section.  He  asked  them  to  reflect  and 
pause  before  they  gave  their  votes  to  adopt  that 
section  as  it  now  stood ;  he  hoped  and  trusted 
they  would  amend  it  or  strike  it  out  and  substi- 
tute another  and  better  one  for  it. 

Mr-BRUNl?AGEwas  weii  aware  of  the  niagni 
tude  of  the  subject  under  consideration.  We  aie 
about  to  esiabhsh  a  tribunal,  on  which,  will  hang 
the  rights  of  property,  and  even  the  liVes  of  indi- 
viduals ;  and  on  the  decision  of  which  the  Consti- 
tution itself,  and  its  construction,  depends — mak- 
ing this  a  civatuie  to  sit  in  judgment  on  us  crea- 
tor. On  such  a  subject,  therefore,  we  should  en 
deavor  to  act  judiciously.  This  was  one  of  the 
great  subjects  which  led  to  the  calling  of  this  Con. 
veniion — being,  as  it  was,  btyond  the  reach  o{  the 
Legislature.  That  there  were  evils  attendant  up- 
on the  administration  of  justice,  was  not  to  be  de- 
nied. It  we  were  lo  call  a  physician  to  visit  a 
Sick  man,  he  first  examined  the  patient,  and  as 
eerlftined  the  nature  of  his  disease;  and  irun  he 
could  act  judiciously  and  understaiidingly  in  ih<- 
application  of  the  remedy.  And  so  we  should 
proceed  in  this  case — fir=t,.ascertaining  the  detects 
in  the  administration  of  justice, and  then  we  could 
proceed  unders!andinu;ly  to  relorm  the  evils.  In 
his  judgment,  the  evils  were  <>l  a  three  lol  i  char- 
acter — first,  *<  to  'he  delay  <  f  justice  ;  s-econd, 
to  the  expenses  of  obi  aining  jusiire  ;  and  third, as  to 
the  uncertainty  of  gelling  justice.  The  fust  is 
clearl>  within  the  reach  or  the  Convention,  and  it 
may,  and  ought  to, apply  the  remecy.  But  the  re- 
medy for  the  uncertainly  of  obtaining  justice — i! 


which  relief  was  now  demanded.    As  to  ;he  blend. 


of    the    two    systems 
competent    to     udge 


of    pleadings,  he  was 

The  majority  report 


it  was   attainable 
scope  ot  legislation 


ali— was    cleady  within  the 
So  far  as  the  retention  of  ihe 


court  of  errors  was  concerned,  lie  apprehended  it 
was  not  necessary  to  say  a  word  ;  Ihe  utter  absur- 
dity of  rnaun  g  a  co-ordinate  branch  of  the  Legis 
lalure  part  of  the  judiciary,-  was  obvious  to  all,  and 
it  found  no  favor  here.  Mr.  W.  expressed  IJH  it 
ciination  to  favor  a  separate  oiganization  ot  equity 
cour's,  from  an  uppiehension  that  the  equity  du 
ties  might  burden  ihe  courts  ol  common  law,  de- 
laying justice",  and  thereby  continuing  the  tvii  lor 


in  many  respects  met  his  views,  and  perhaps  he 
ought  to  be  satisfied  with  it,  but  so  far  as  regards 
the  organization  of  the  courts,  he  preferred  the 
plan  of  Mr.  BASCOM,  as  being  most  simple.     Mr£ 
B.  then  referred  to  the   previous  portions   of  the 
proposition  from  which  he  dissented — the  mode 
of  electing  the  judges,  the  shortness  of  the  term, 
rendering  it  liable  to  the  fluctuations  of  political 
sentiments.     He  feared  that  sufficient  force  was 
not  provided  for  the   supreme  court,   and  he  waa 
not  satisfied  altogether  with  the   constitution  of 
the  court  of  appeals.     His  plan  would  be  to  elect 
five  judges  in  each  district,  and  make  their  term 
of  office  for   ten  years — one  to  go  out  every   two 
years — authorising  any  one  of  the  judges   to  hold 
the  county  courts,  for  all  the  purposes  of  present 
circuit  and  county  courts— and  authorising  a  cer- 
tain number  of  them,  having  the  shortest  time  to 
serve,  to  hold  the  general  sessions  of  the  court, 
and  to  perform  such  duties  as  are-  now  performed 
by  the  supreme  court.    Then  he  would  authorize, 
;ay  three  of  them,  having  the  next  shortest  time 
o  serve,  to  hold  bane  terms  in  the  districts.     By 
his,  the  judges   would  have  six  years  service  in 
he  county  courts,  then  two  years  in  the  capacity 
)f  district  judges,  and  for  the  last  two  years  of 
:heir  term  would  serve  in  the  court  cf  last  resort. 
This  would  secure  experience,   ability  avid  com- 
petency, in  the  discharge  of  these  important  du- 
;ies.     Mr.  B.   expressed   his  opposition   to   any 
)lan  for  a  common  pleas  at  all  similar  to  the  pre- 
sent.    He  desired  the  supreme   court  judges  to 
icld  the   county  courts.     He   would  not  allow  a 
udge  to  sit  in  a  county  in  which  he   resided,  for 
n  his  opinion  a  judge   should  knew  nothing  of 
the  parties  or   of  the  cause,  but  what  was   given 
"o  him|"in   evidence.     There  was  danger  of  bias- 
where  a  judge  was  acquainted  with  the  facts,  cir- 
cumstances, and  parties,  and  this  would  be  obvia- 
ted by  bringing  the  judge  from  a  different  county. 
As  regarded  the  matter  of  justices  of  the  peace, 
Mr.   B.  expressed    his   opposition   to   extending 
their  jurisdiction.     He  referred  to  his  own  expe- 
rience in  that  capacity  for  a  number  of  years  past, 
as  convincing  him  that  such  a  thing  would  be  un- 
wise.    Indeed   he  would  rather  reduce   than  in- 
crease their  jurisdiction.     Mr.  B.  then  spoke  of 
the  plan  for  a  court  of  conciliation.    He  had  very 
little  confidence  in  it,  although  he  had  no  objec- 
tion to   the   experiment.     In  conclusion   Mr.  B. 
expressed   his   conviction   that  the  funds  of  the 
court  of  chancery  were  not  now   safely  disposed 
of,  and  expressed   his  preference  or   the  idea  of 
placing  them  under  the  direct  control  of  the  state. 
Mr.    KIRKLAND  addressed  the  committee  in 
substance  as  follows  :— 

When  I  had  the  honor,  Mr.  Chairman,  nearly 
a  fortnight  since  to  address  the  committee  on  the 


subject  of  the  judiciary,  my  remarks  were  con- 
fined mainly  to  an  exposition  of  the  reasons  which 
led  the  judiciary  committee  to  recommend  several 
substantial  and  Very  material  changes  in  the  ju- 
dicial system  ;  changes,  in  the  utility  of  which 
I  fully  concurred,  and  which  I  was  well  aware 
would  receive  the  cordial  assent  of  the  Conven- 
tion. The  chief  and  principal  of  these  were  the 
union  of  the  duties  of  term  and  circuit  judges  in 


741 


the  same  individuals  ;  the  bringing  of  the  courts 
comparatively  within  the  vicinity  of  suitors,  their 
attorn ies  and  counsel ;  the  trial  of  cases  in  law 
and  equity  substantially  in  the  same  manner,  and 
the  consequent  abolition  of  the  offices  of  examin- 
er and  master;  the  abolition  of  fees  and  perquis- 
ites and  of  judicial  patronage  ;  the  alteration  of 
the  term  of  office  from  a  term  substantially  for 
life  to  a  reasonable  term  for  years  ;  and  the  union 
of  legal  and  equitable  powers  in  the  same  tribu- 
nal. I  anticipated,  sir,  that  the  Convention  would 
nearly  unanimously  approve  these  reforms  and 
changes — and  it  was  only  to  explain,  to  justify 
and  to  defend  before  our  constituents  and  the  com- 
munity these  our  anticipated  doings,  that  my 
efforts" on  the  occasion  alluded  to  were  chiefly  di- 
rected. Since  that  time  anticipation  has  became 
reality ;  and  notwithstanding  earnest  and  ingen- 
ious arguments,  the  most  important  change  pro- 
posed, that  of  a  union  of  the  tribunals,  has  been 
determined  on  by  an  overwhelming  majority — the 
opponents  of  that  measure,  in  spite  of  their  per- 
suasive appeals,  having  obtained  only  seven  votes 
in  support  of  their  views.  And  since  that  vote, 
sir,  I  have  been  informed  that  one  of  that  minor- 
ity of  seven,  and  he  the  most  urgent  and  earnest 
in  opposition,  has  renounced  his  heresies  and  be- 
come a  sincere  convert  to  our  "  faith."  In  the 
remarks  to  which  I  have  referred,  I  also  stated 
briefly  some  of  my  objections  to  the  plan  of  organ- 
ization proposed  by  the  majority  of  the  committee ; 
but  I  entered  into  scarcely  any  explanation  or 
defence  of  the  system  which  I  myself  proposed, 
and  deferred  to  another  opportunity  such  argu- 
ments as  I  might  have  to  urge  in  its  behalf.  The 
time  has  now  arrived,  and  the  proposed  amend- 
ment presents  the  proper  opportunity  for  me  to 
present  my  views  in  support  of  one  part  of  the 
plan  as  contained  in  the  article  reported  by  me 
from  the  minority  of  the  judiciary  committee — 
and  a  part  too,  sir,  which  is  deserving  of  the  most 
serious  and  deliberate  consideration  in  the  forma- 
tion of  a  judiciary  system  for  this  state.  I  pre- 
sented that  article,  sir,  on  the  first  day  of  the 
present  month  ;  and  I  see  that  other  articles  since 
presented,  contain  all  the  substantial  elements  of 
mine  in  relation  to  this  interesting  and  important 
part  of  the  judiciary  system.  I  feel  obliged  to 
gentlemen  for  this  concurrence  in  my  views. 

The  amendment  now  under  consideration  pre- 
sents directly  the  question  whether  the  Conven- 
tion will  concur  in  the  recommendation  of  the 
majority  of  the  committee  to  abolish  county  courts 
— not  tlie  county  courts  as  now  organized,  for 
not  a  man  in  this  Convention  desires  or  would 
consent  that  they  should  be  retained — butto  abol- 
ish the  tribunal  and  leave  the  system  without  any 
representative  or  substitute  for  it,  however  well 
or  efficiently  such  representative  might  be  arran- 
ged and  organized.  This,  Mr.  Chairman,  is  a 
question  of  no  secondary  importance  ;  it  deserves 
tne  careful  and  anxious  attention  of  the  Conven- 
tion. On  the  threshold  of  this  matter,  I  earnestly 
beg  gentlemen  not  to  be  influenced  in  their  views 
and  action  upon  it  by  the  prejudices  existing  here 
and  elsewhere  against  these  courts  as  now  organ- 
ized—prejudices very  extensively,  and  I  may  well 
say  not  unjustly  or  causelessly,  entertained.  It 
is  not  to  be  questioned  that  this  tribunal,  with  its 
five  incumbents,  appointed  as  they  are,  paid  as 


they  are,  unqualified,  nay,  disqualified  as  many 
of  them  must  he  admitted  to  be,  is  in  many  instan- 
ces full  of  any  thing  but  attraction  to  the  eye  of 
the  beholder,  and  of  any  thing  but  comfort  and 
satisfaction  to  those,  who  are  brought  within  its 
judicial  administration.  It  is  at  present  far  from 
being  a  useful  or  an  ornamental  column  in  our  ju- 
dicial edifice.  But  all  this  furnishes  no  argument 
whatever,  not  the  slightest,  against  a  properly  or- 
ganized tribunal  with  the  powers  and  jurisdiction 
now  existing  in  the  county  courts.  Much  less  is 
any  such  argument  furnished  by  the  statement 
made  a  few  days  since  by  the  gentleman  from 
Chautauque  (Mr.  PATTERSON)  of  the  barefaced 
extortion  attempted  to  be  practiced  by  a  judge  in 
his  county,  when  acting  individually  in  the  capa- 
city of  a  committing  magistrate ;  and  I  regretted 
to  see  that  worthy  gentleman  appealing  to  passion 
instead  of  reason,  by  the  use  of  an  illustration  so 
totally  inapt  and  irrelevant. 

Some  gentlemen  on  this  floor  are  opposed  to 
the  establishment  of  any  county  courts  of  any 
name  or  form — they  contend  for  but  a  single  court 
intermediate,  the  court  of  final  resort  and  the 
justices'  courts — they  would  annihilate  every 
thing  of  every  kind  between  the  tribunal  of  the 
highest  and  the  tribunal  of  the  lowest  grade — 
while  others  propose,  what  I  believe  they  would 
dignify  with  the  name  of  "  county  court,"  but 
without  any  original  jurisdiction — a  sort  of  court 
of  errors  to  a  justices'  court — a  kind  of  inferior 
and  subordinate  board  of  commissioners  to  do  up 
the  odds  and  ends  of  local  business,  without  a 
jury  at  all  as  proposed  by  one  gentleman,  and 
with  a  jury  in  criminal  cases  of  small  degree,  as 
proposed  by  another — a  kind  of  nondescript, 
whose  like  has  not  yet  been  seen  or  every  before 
i  i  agined.  A  man  in  every  degree  qualified  for  e 
judicial  station,  who  would  consent  to  become  the 
incumbent  of  such  a  judgeship  would  manifest  a 
"  hungering  and  thirsting"  for  office  rarely  wit- 
nessed even  in  this  hungering  and  thirsting  day. 
I  dissent  entirely  from  the  views  I  have  just  re- 
ferred to  ;  and  my  deliberate  and  firm  conviction 
is  that  county  courts,  suitably  and  efficiently  or- 
ganized, are  indispensable  to  the  success  of  any 
judiciary  system  which  this  Convention  can  adopt, 
consistently  with  those  great  and  essential,  arid 
as  I  believe,  valuable  and  beneficent  changes  on 
which  it  has  already  resolved.  These  tribunals 
are  in  my  judgment  equally  requisite  to  the  suc- 
cessful canying  out  of  each  of  the  plans  present- 
ed, whether  that  of  the  majority  or  those  of  the 
minority  of  the  committee,  or  those  presented  by 
other  members  of  the  Convention. 

In  the  first  place,  Mr.  Chairman,  let  us  consid- 
er the  immense  amount  of  business  to  be  devolved 
on  the  supreme  court  as  organized  by  the  majority 
of  the  committee.  This  fact  is  of  primary  im- 
portance, and  should  be  constantly  borne  in  mind 
during  this  discussion.  In  that  court  is  to  be 
done  all  the  business  now  done 

1 .  By  the  court  of  chancery  in  all  its  branches ; 

2.  By  the  supreme  court; 

3.  By  the  circuit  judges  ; 

4.  The  principal  part  of  that  now  done  by  ex- 
miners  ; 

5.  Much  of  that  now  performed  by  masters. 
This  enumeration  perfects  an  immense   mass, 

and  it  is  to  be  observed  that  an  entirely  new  ele- 


742 


ment  is  introduced  into  trials  at  the  circuit,  viz  : 
equity  causes.  The  amount  and  extent  of  this 
no  man  can  tell ;  many  alledge  that  this  alone  will 
overburden  and  bear  down  any  system  into  which 
it  is  introduced,  and  though  I  entertain  no  such 
apprehension  and  regard  this  as  one  of  the  great- 
est and  most  salutary  reforms  that  will  be  made 
by  the  Convention,  still  it  is  manifest  that  it  will 
very  greatly  add  to  the  circuit  business,  and  any 
system  we  adopt  should  be  framed  in  view  of  this 
fact.  One  hundred  and  sixty-eight  examiners  are 
now  in  commission,  and  many  of  them,  as  appears 
from  the  returns  made  to  us,  are  extensively  and 
lucratively  employed  in  their  official  capacities. 
Cut  to  all  this  the  majority  of  the  committee  pro- 
pose to  add  the  whole  business,  civil  and  criminal, 
now  done  at  court  in  all  the  county  courts  in  the 
state  ;  and  whatever  may  be  said  of" the  incapacity 
of  these  courts  as  now  existing,  it  cannot  be  de- 
nied that  they  annually  dispose  of  a  vast  number 
cases,  civil  and  criminal.  The  county  courts  in 
Oneida  county  are  busily  occupied  during  ten 
weeks  of  the  year  ;-and  I  take  pleasure  in  saying 
that  the  presiding  judge  of  those  courts  in  that 
county  is  fully  adequate  to  his  station,  and  is  not 
surpassed  by  any  of  that  choice  few,  whose  eulo- 
giurns  have  been  pronounced  on  this  floor. 

Now,  sir,  in  view  of  these  facts,  I  do  not  hesi- 
tate to  say,  that  neither  the  supreme  court,  as 
proposed  by  the  majority  of  the  committee,  nor 
any  other  one  court,  with  any  reasonable  num- 
ber of  judges,  could,  by  any  possibility,  exist  un- 
der these  accumulated  masses  of  business — its 
creation  and  its  extinction  would  be  almost  si- 
multaneous— the  rejoicings  at  the  birth  would 
scarcely  have  ceased  before  the  requiem  would 
be  sung.  This,  sir,  I  am  persuaded,  is  no  pic- 
ture of  fancy ;  it  is  plain,  sober  truth,  and  is  but 
a  very  slight  sketch  of  what  would  soon  be  a 
most  sorrowful  reality. 

As  an  aid  then  to  the  supreme  court,  as  pro- 
posed by  the  committee,  (and  to  any  tribunal 
which  is  to  represent  the  present  supreme 
court  and  court  of  chancery,)  to  relieve  that  court 
of  burdens  it  could  not  bear,  to  insure  its  con- 
tinued existence,  and  to  promote  its  suitable  and 
proper  organization,  a  well  arranged  system  of 
county  courts  is  vitally  essential. 

Moreover,  sir,  those  most  hostile  to  these  lat- 
ter courts,  concede  the  necessity  of  some  tribu- 
nal or  officers  for  the  transaction  of  that  immense 
amount  of  local  and  miscellaneous  business  now 
performed  by  those  courts,  or  by  the  judges  of 
those  courts,  a  partial  etaternent  of  which  1  gave 
in  the  remarks  addressed  to  the  committee  on  a 
former  occasion.  By  organizing  proper  county 
courts,  the  whole  of  this  last  class  of  business 
will  be  provided  for,  and  at  the  same  time  the 
essential  and  indispensable  object  before  men- 
tioned, will  be  accomplished.  These  courts 
must,  of  necessity,  if  my  positions  are  correct,  be 
courts  of  original  jurisdiction,  civil  and  criminal. 
It  is  said,  sir,  that  in  preference  to  establish- 
ing county  courts,  the  number  of  the  judges  of 
the  supreme  court  should  be  increased.  It  is 
easy,  sir,  thus  to  say — but  I  think  gentlemen 
would  find  the  people  of  this  state  very  unwil- 
ling to  unite  with  them  in  thus  saying  ;  and  thei 
to  act  accordingly  by  increasing  the  number  o 
those  supreme  court  judges  to  the  extent  which 


would  absolutely  be  required.  Such  an  increase, 
could  it  be  obtained,  I  regard  as  unwise  and  in- 
expedient in  every  point  of  view. 

It  is  an  undoubted  fact  that  there  is  a  large 
amount  of  business,  both  civil  and  criminal,  of 
comparatively  small  importance,  which  is  now 
done,  and  will  continue  to  be  done,  and  which 
at  present  devolves  principally  on  the  county 
courts.  These  matters,  though  in  a  comparative 
sense  small  and  unimportant,  are  yet  full  of  in- 
erest  to  the  parties  concerned,  and  occupy  quite 
is  much  time  in  their  trial  and  decision  as  those 
)f  greater  magnitude.  Did  time  permit,  many 
llustrations  of  this  might  be  given,  though  it 
'ould  scarcely  be  necessary,  for  numerous  in- 
tances  must  be  fresh  in  the  recollection  of  all 
tfho  hear  me. 

I  have  heard  the  senseless,  sophistical  cry, 
:hat  there  should  not  be  one  kind  of  justice  for 
lie  poor  and  another  for  the  rich — one  court  for 
aTge  causes  and  another  for  small.  But,  sir,  it 
.s  not  the  poor  more  than  the  rich,  who  have 
:hese  small  causes — indeed,  the  poor  are  seldom 
mind  engaged  in  litigation  in  your  courts. — 
These  small  and  severely  contested  cases,  more 
requently  arise  between  persons  of  good  es- 
,ates,  whose  wills  and  whose  passions  gain  the 
ascendency  over  their  reason,  and  lead  them  to 
the  expenditure  of  hundreds  of  dollars  in  cases 
where  the  pecuniary  amount  involved  is  scarcely 
five,  as  in  the  instance  mentioned  a  few  days 
since  by  the  gentleman  from  Tioga  (Mr.  TAY- 
LOR). And  in  criminal  cases,  which  consume 
as  much  time  as  those  of  the  highest  grade,  you 
will  often  find  the  parties,  men  who  would  deem 
themselves  insulted  by  being  called  poor.  How 
many  months  are  occupied  in  the  trial  of  indict- 
ments for  assault  and  battery,  riot,  libel,  nui- 
sance, and  the  like,  where  the  defendants  are 
quite  as  likely  to  be  found  among  those  abound- 
ing in  this  world's  goods  as  among  the  opposite 
class.  Besides,  I  am  yet  to  learn  that  all  the 
criminals  of  this  land  of  the  higher  grade  are  to 
be  found  among  the  "  poor."  Pecuniary  means 
have  not  yet,  I  believe,  been  ascertained  to  be  a 
certain  preventive  of  vice  and  crime  in  the  pos- 
sessor. I  cannot,  then,  believe,  Mr.  Chairman, 
that  the  rights  of  the  rich  would  be  exalted,  or 
those  of  the  poor  depressed,  either  in  civil  or 
criminal  matters,  by  the  establishment  of  county 
courts.  The  argument,  too,  in  its  legitimate 
and  necessary  results,  would  lead  to  the  aboli- 
tion of  justices' courts  ;  it  is,  indeed,  sir,  hardly 
worthy  of  refutation,  and  I  should  not  have  no- 
ticed it  had  it  not  been  seriously  put  forth.  It  is 
not  then  a  question  between  the  rights  of  the 
rich  and  the  rights  of  the  poor,  but  simply  a 
question  of  convenience  and  propriety,  of  econo- 
my of  time  and  money ;  and  so  lung  as  there  is  a 
difference  between  ten  thousand  dollars  and  ten, 
between  punishment  by  death  on  the  gallows, 
and  punishment  by  imprisonment  in  the  county 
jail  for  a  day,  so  long  will  there  be  propriety, 
convenience,  fitness,  in  organizing  judicial  tribu- 
nals of  different  grades. 

Now,,  sir,  the  judges  of  your  supreme  court 
will  find  abundant  employment  in  disposing  of 
the  larger  and  more  weighty  matters  that  will  be 
brought  before  them.  Vast  and  extensive  inter- 
ests are  to  come  under  their  judicial  cognizance. 


743 


•  w    it'  l-<w  I  of  such  county,  and  shall  hold  their  offices  tor  lour 
ey  lire  to  transact  the  united  bus.;  law   oi^jo  ^^  ^^  .^^  _iiid  t.X(jrci8e  th(j  powe-.s  ^ 

•dial  chancery.      Men  competent  to  the  discharge    lluties  Qf  smrogate  in  his  county.     Each  oi  said  county 
i  duties  must  have  -at  '  'table  sal-  I  judge*  sh,  'il  also  have  -and  .  xercise  sum  other  powers  and 

aries  •  and  I  hold  that  it  would  be  a  waste  of  the  juiisdictlon  a,  .nay  be  confei  . 

ro0fQ  of  tho  mn          1'rovisioii  shall  bo  madi:  t.y  law  t-»r  cases  of  vacancy  in 

,le  tune  ot  these  waste  0        e  mo-  I         0,lit.eofsaidfirstand  associate  judge,  or  either  of  them 

ney  of  the  people,   to  require   or  allow  them  ^  to 
devote   themselves   alike  to  great    and  to  triflin 


,n,ifor  r|lt.  :  case.  .f  the  aii.s.-nr.'  or  inability  of  them,  orei- 
ther  of  them,  to  perform  any  ol  their  oiricial  duties. 
•s,  and  to  occupy  their  days  and  weeks  and       I  beg   the  attention  of  the   connnitte   for  a  few 


months  in  that  description  of  business,  which  is    1IU)luel,tSi  while  1    explain  the   provisions  of  this 
now  transacted  in  the  county  courts,  which  must  L  t.tl,,11$  ail(]  stale  suriie  ot  the  advantages  which  in 
-    exist   to   a  greater   or   less   extent,   and    my  judgment  would    lesult   from  the   adoption  of 
which  would   naturally  and   ordinarily  devolve    lni,  syslem  j,  proposes. 

on  the  county  courts,  if  such  are  established. —  -t  js  ,n,p0rtarit  that  the  jurisdiction  of  the  tribu- 
To  throw  all  this  on  the  supreme  court  would  naUhnukl  be  declared  ;  the  mode  of  s  atmg  it  as 
naturally  require  an  increased  number  of  judges  in  tile  SIJC,U),,,  js  perfectly  safe  as  well  as  intelli- 
in  that  court— and  thus  the  same  compensation  Ljble  ;  the  legislature  is  invested  with  power  to 
would  be  paid,  and  the  same  expenses  incurred  :ake  away  any"j>art  ,,f  rhe  jurisdiction  if  deemed 
for  doing  this  smaller  class  of  business  as  for  that  advisable,  and  also  to  conler  additional  jurisdic- 
higher  and  more  important  character. —  tion,  including  jurisdiction  in  equity,  if  the  public 
Besides,  "sir,  is  that  a  wise  system  which  com-  inte,.ests  demand.  As  to  equity  jurisdiction,  I  am 
pels  a  judge,  who  has  cognizance  of  matters  ot  inci,nt;d  to  think  that  it  may  be  very  useful,  per- 
the  greatest  magnitude,  to  devote  a  considerable  na,)S  necessary,  to  confer  it  t )  a  limned  extent,  a.s 
share  of  his  time  to  the  hearing  and  disposition  tor  jllslariCe  in  cases  of  infants'  estates,  parti, iou  of 
of  those  of  trilling  consequence  ?  By  the  estab-  l(iud>  CdSe3  ()t  divorce,  arid  probably  in  all  cases 
lishment  of  county  courts,  the  additional  force  wnere  the  amount  in  controversy  does  not  exceed 
required  would  be  obtained  at  a  materially  less  £ve  hundred  dollars  or  some  other  fixed  sum. — 
expense,  for  it  is  not  contemplated  that  the  sala-  This  ()OWer  should  at  any  rate,  on  every  conside 
ry  of  a  judge  of  that  court  should  equal  that  ol  a  ratum  Of  pludeuce,  be  given  to  the  legislature. 
judo:e  of  the  supreme  court.  .  The  next  provision  to  which  I  would  call  the 

But,  sir,  let  it  not  be  understood  that  these  attentjon  0(  tne  committee,  is  that  which  arranges 
courts  are  to  be  so  organized  as  to  be  competent  tne  tribunal  jol-  the  city  cf  New  York  :  it  furnishes 
to  do  only  this  smaller  business ;  they  should  tnat  cl)y  with  j-our  courts  of  common  pleas, to  com. 
and  can  be  arranged  and  constituted  so  that,  mence  with  ;  and  by  the  provisionsof  asubsequent 
while  they  must  and  naturally  will  do  the  whole  I  sectjon>  this  number  may  be  increased  according 
or  the  greaier  share  of  this  smaller  business,  L()  |1)e  nxjgencies  of  business;  it  also  furnishes  a 
they  will  at  tb'i  same  time  be  fully  qualified  and  sale  and  ajeqi,ate  criminal  court,  in  lieu  of  the 
competent  to  the  doing  of  such  portion  ol  the  L)f.ese,,t  Recoider's  court.  By  adding  to  the  num- 
more  important  kind  as  may  be  brought  before  ' 
them. 

As  a  member  of  the  judiciary  committee,  Mr. 
Chairman,  I  devoted  no  little  time  and  attention 
to  a  consideration  of  the  mode  in  which  these 

courts  could  be  organized,  so  as  to  remedy  ex- 1  can  discover  no  difficulty  whatever  in  this  m<  deof 
isting  evils  and  objections,  and  to  render  them  I  u,,pivjng  the  city  of  New-York  with  all  the 
an  efficient,  useful,  and  valuable  part  oi  our  ju-  cou',  ts  s\^  may  desire,  in  addition  to  the  courts  of 
dicial  system.  The  result  of  my  deliberations  L  hlgher  Krade,  provided  by  rhe  fourth  section  of 
was  presented  to  the  committee  in- the  following  ffly  arlicie.  aud  which  latter  court  is  also  capable 
section  of  the  article  which  I  had  the  honor  to  Of  exten8ion  according  to  her  wants,  in  a  mode  per- 
lay  before  them  on  the  first  of  the  present  month  :  {ec(iy  slmp|e. 

This  district  system  of  county  courts  is  attended 
with  many  advantages;  the  district  judge  will  be 


ber  of  the  district  judges,  that  city  may  be  sup- 
plied  with  as  many  courts,  civil  and  criminal,  as 
her  necessities  require,  all  founded  on  the  same 
Ian,  governed  by  the  same  rules,  and  in  perfect 
unison  witn  the  courts  throughout  the  Slate.  I 


5)9.  There  shall  in  each  county,  be  a  county  court 
which  shall   have  tin- jurisdiction   now  exis 

county  courts,  subject  to  modulation  and  alteration  by  I  tne    incumbent    of  a   responsible   and   respectable 
JkW»^ldal«0b8U1cahAre<luilyafldotherjari8di  may    office,  and  it  may  well    be    believed    that    men  of 

8Inthe^lr»t  judicial  district,  there  shall  be  lour  district  |  competent  ability    will,  under  such  an  organiza- 


ofthe  county  court;  each  of  th  •  hold    ri()1),  occupy  the  station,  and  thus  the  community 

county  court-  i  iot  tor  the  trial  and  c  n|  hp  (,-,,.„  jsneij  wjth  a,n  efficient,  well  qualified  judge, 

said  district  judges.  I  State.     This  judije  too  will  he  free  from  the  oh- 

hot  the  other  judicial  districts  there  shall  be^a  j  jection  of  local  and  personal   prejudices  and  influ- 
ences which  might  be  made  against  one,  who  was 


county  court  :  he  shall  a  d 


judges  shall  he  associated  v,  ith  him.     '1  he  term  of  • 
said  district  judges  shall  he  •  igUt  yedis  :  they  shnl! 
pointed  by  the  joint  ballot  ol   the  members  of  UK 
ana  Assembly.    Any  aistiiot  judge  appointed  to  liil  <t  va- 
cancy shall  hold  h 

The  district  judges  oi  one  district    nv.iy   i'cld  courts  in 
anv  other  district,  and  shall  do  so,  when  ruiuived  by  law: 
;lges  may  be  authorised  by  law  to  hold 


Theral! in  <  ach  county  be  a  first  judge  and  an  asso- 

Ciatc  judge:  they  shall  be  eke  tod  by  the  qualified  electors 


will  be  entitled  to  respect  and  confidence;  he  will 
every  imaginable  inducement  to  perform  his 
duties  well  and  satisfactorily, so  that  his  court  may 
compare  favorably  with  that  next  above  him,  and 
il  IK-  may  justly  be  entitled  to  a  promotion  to 
r  tribunal.  This  system  of  district  coun- 
ty courts  has  worked  successfully  in  other  states, 
whi-n-  it  has  lonu  been  in  operation.  For  the  trial 
and  disposition  of  civil  causes  in  this  tribunal,  one 


744 


judge  is  abundantly  sufficient;  and  so  well  satis- 
fied is  the  community  of  this  fact,  that  several 
counties  in  the  Stale  have  applied  for  power  to 
have  the  common  pleas  court  held  by  one  judge, 
and  acts  accordingly  have  been  passed. 

The  section  under  consideration  provides  for  a 
first  and  an  associate  county  judge  in  each  county  ; 
these  judges  are  to  form  a  constituent  part  of  the 
criminal  court  of  the  county:  they  are  to  sit  with 
the  circuit  judge  in  the  over  and  terminer  and  with 
the  district  judge  in  the  general  sessions,  and  thus 
a  sate  and  convenient  court  is  Jormed  tor  the  ad- 
ministration of  justice  in  criminal  cases.  It  is  also 
proposed  to  devolve  on  the  first  judge  the  powers 
ut  surrogate,  and  this  I  deem  an  important  and 
salutary  provision.  It  will  elevate  both  offices  by 
rendering  the  station  more  responsible  and  im- 
portant j  it  will  tend  to  secure  adequate  ability, 
and  all  this  at  diminished  expense  to  the  counties. 
By  another  provision  of  this  section,  the  Legisla 
lure  have  the  power  of  conferring  on  this  surro 
gate  some  equity  powers,  such  as  those  relating  to 
fhe  estates 01"  lunatics,  infants,  habitual  drunkards, 
partitions  in  certain  cases,  &c.,  which  it  has  been 
deemed  by  many  could  safely  and  to  the  great  con- 
venience of  the  public,  be  conferred  on  that  officer. 
The  further  power  is  vested  in  the  Legislature  to 
give  such  jurisdiction  to  the  associate  judge  as  may 
be  desirable,  and  under  this  he  might  be  invested 
with  much,  if  not  all  of  that  power  which  is  now 
exercised  by  the  individual  judges  of  the  county 
courts. 

It  is  further  provided  that  these  district  judges 
may  hold  courts  for  each  other  and  also  circuit 
courts,  a  provision  that  will  tend  to  equalize  the 
labors  of  the  judges  and  to  provide  for  various  con- 
tingencies. But,  sir,  it  is  scarcely  necessary  for 
me  to  argue  farther  in  favor  of  the  tribunal  propo- 
sed by  this  section.  The  gentleman  from  Chau- 
tauque  (Mr.  MARVIN)  has'in  the  ariicle  presented 
by  him  to  the  Convention  on  the  twelfth  ot  this 
month,  inserted  a  section  in  all  substantial  parti- 
culars in  harmony  with  that  now  under  considera- 
tion, and  he  made  an  able  argument  in  suppoit  of 
the  substance  of  my  plan.  I  was  happy,  also,  sir, 
to  hear  that  gentleman  say  that  after  hearing  ihe 
convincing  remarks  of  the  gentleman  from  Erie, 
(Mr-  STOW,)  he  was  in  favor  of  my  proposed  union 
of  the  offices  of  judge  and  surrogate  in  one  person. 

NDW,  sir,  one  word  to  the  gentleman  from  Chau- 
tauque,'  in  reference  to  the  matter  of  the  trial  of 
equitv  causes  at  the  circuits  and  their  subsequent 
disposition,  a  matter  in  relation  to  which  the  gen- 
tleman, from  the  remarks  he  made  on  the  floor  a 
few  days  since,  does  not  yet  seem  to  be  satisfied. 
The  explanation,  sir,  is  summed  up  in  a  word — 
equitv  cases  properly  triable  at  a  circuit  court,  are 
to  be'tried  and  disposed  of  precisely  as  cases  at 
liw  •  it'  no  legal  questions  arise,  the  party  prevail- 
ing 'will  be  entitled  to  his  decree,  as  he  would 
beat  law  to  his  judgment ;  if  such  questions  do 
at-HH  the  paity  deleaied  prepares  his  papers  and 
argues  his' cause  in  bane  precisely  as  he  would, 
were  it  a  case  at  law.  And,  sir,  if  any  man  can 
fch'iw  why  there  should  be  any  difference  in  the 
mode  of  trying  and  disposing  of  these  two  classes 
of  ca«es,  (where  tne  facts  are  such  as  to  render  a 
trial  by  jury  suitable,)  he  will  accomplish  no  ordi- 
nary task. 

I  might,  Mr.  Chairman,  extend  my  remarks  on 


the  ability  and  necessity  of  county  courts — not 
such  as  now  exist — but  county  courts  properly  and 
efficiently  organized;  but  if  the  facts  and  conside- 
rations I  have  already  presented  fail  to  convince 
the  committee,  nothing  that  1  could  .  dd  would 
produce  conviction.  The  union  ot  the  two  tribu- 
nals (of  law  and  equiiy)  and  the  trial  of  equity 
cases  at.  the  circuits,  is  an  experiment,  but  an  ex- 
periment which  I  most  sincerely  believe,  under  a 
well  organized  judiciary  svstem,  would  be  emi- 
nently successful,  and  would  produce  results  the 
most  happy  and  beneficent.  Bui,  sir,  if  the  Con. 
venlion  adopt  the  organization  ot  the  supreme 
court  as  proposed  by  the  majority  of  the  judiciary 
committee,  and  (as  is  also  substantially  proposed 
by  that  majority)  refuse  to  establish  county  courts 
of  original  jurisdiction,  it  requires,  I  think,  no 
spirit  of  prophecy  lo  foretell  the  faie  of  the  new 
judiciary  system.  It  will  prove  totally  inadequate 
to  its  task  ;  it  will  linger  out  a  brief  and  a  mise- 
rable existence,  arid  will  then  suffer  an  UD lamented 
death  and  be  consigned  to  an  unhonored  grave. 
In  the  responsibility  of  causing  such  a  calamity,  I, 
for  one,  sir,  can  never  consent  to  share  j  on  others 
must  this  heavy  burden  wholly  rest. 

Mr.  WARD  said  it  was  his  intention  to  have 
submitted  his  views  on  this  subject,  somewhat 
at  length — but  so  much  time  having  been  occu- 
pied by  members  of  the  judiciary  comm  t  ee  and 
others,  that  he  should  content  himself  with  a 
very  brief  statement  of  s<>me  of  the  reasons  for 
the  vote  he  was  about  to  give  on  this  impor- 
tant subject.  And  before  doing  this,  he  must  be 
permitted  to  congratulate  the  chairman  of  the 
committee  on  the  near  termination  of  his  arduous 
duty,  and  the  Convention  on  having  reached  a 
point  where  we  could  see  our  way  clear  through 
this  important  report.  This  discussion,  if  it  had 
done  little  good,  as  some  thought,  had  certainly 
done  no  harm ;  and  he  trusted  that  we  should 
soon  come  to  a  vote  upon  the  great  question  be- 
fore us.  We  had  already  disposed  of  the  legis- 
lative and  executive  departments  of  the  govern- 
ment; and  this  question  of  the  judiciary  being 
settled,  the  labors  of  this  body,  he  trusted,  would 
soon  be  brought  to  a  close.  He  confessed  that  he 
came  here  fully  impressed  with  the  belief  that  no 
olher'changes  would  be  necessary  in  our  j  .dietary 
system  (ban  to  make  some  further  provision  in  re- 
gard io  our  court  of  errors,  and  perhaps  lo  add 
somewhat  to  the  force  in  our  supieme  court  and 
court  of  chancery,  keeping  them  as  now,  separate 
and  distinct  tribunals.  But  after  the  overwhelm- 
ing vote  in  f,tvor  of  uniting  these  twojurisdictions, 
he  felt  constrained  to  yield  his  opinions  and  to  ac- 
quiesce in  that  of  the  convention.  He  did  this 
cheerfully,  and  he  believed  his  constituents  would 
warrant  that  course.  Nor  could  he  doubt  from  the 
almost  entire  unanimity  here  on  that  point,  that 
the  great  mass  of  the  people  were  prepared  tor  this 
change.  And  having  made  this  concession,  he 
would  say  further,  that  being  compelled  lo  make 
his  choice  between  the  several  systems  before  u  , 
and  after  having  duly  reflected  on  the  subject,  he 
had  come  to  the  conclusion  to  sustain  the  plan  of 
the  judiciary  committee,  as  the  next  best  plan  to 
that  which  he  had  in  view.  He  should  sustain  it 
by  his  vote,  as  the  best  plan  under  all  the  circum- 
stances, thai  could  be  had,  with  such  modifications 
in  its  details  as  would  probably  be  made,  and  with 


745 


the  entire  assent,  he  had  no  doubt,  ot  the  judiciary 
committee,  if  in  harmony  with  the  mum  features 
of  it.  How  stood  our  present  judiciary  system, 
and  vvhat  the  force  now  on  the  bench  ?  We  had  a 
court  of  errors,  consisting  of  thirty-two  senators, 
and  ;i  Lieut.  Gov — a  court  of  chancery  with  ach,ui 
cellor  at  its  head,  two  vice  chancellors  and  an  as- 
sistant— a  supreme  court  of  three  judges — and  the 
common  pleas,  consisting  of  five  judges  in  each 
county.  The  plan  of  the  judiciary  committee  pro- 
posed a  court  of  appeals  of  eight  members — and  a 
supreme  court  ot  thirty-two  judges — in  all  (as  four 
of  the  latter  were  to  be  taken  to  make  up  the  court 
of  appeals)  but  thirty-six  There  weie  differences 
of  opinion  as  to  the  ability  of  such  a  court  to  dis- 
charga  the  duties  that  would  devolve  upon  it — some 
being  confident  that  it  would  be  quite  adequate,  and 
others  that  it  would  not.  And  in  connection  with 
this  question,  we  had  heard  much  in  respect  to  the 
practice  in  the  courts  of  law  and  equity — asfi  this 
convention  could  stop  to  arrange  the  practice  in 
these  courts,  or  undertjake  to  assimilate  them.  The 
truth  was  we  could  do  nothing  ourselves  beyond 
instituting  a  commission,  or  enjoining  upon  the 
legislature  some  such  reforms — and  indeed  it  was 
scarcely  necessary  to  do  that,  as  the  legislature 
would  no  doubt  see  to  it,  if  demanded  by  the  pub- 
lic voice,  that 'provision  was  made  for  all  needed 
relorms  in  this  particular,  and  especially  if  it 
should  be  found  necessary  to  carry  out  successfully 
the  plan  here  laid  down.  Our  attention  should  be 
turned  in  another  direction.  The  convention  had 
virtually  settled  the  question  that  our  present  judi- 
ciary system  should  be  demolished,  and  we  must 
make  up  our  minds  what  system  we  would  substi. 
cute  in  its  ulact.  There  could  be  no  doubt  that  we 
were  to  hare  one  court,  in  which  the  two  juris- 
dictions of  law  and  equity  were  to  be  blended.  We 
had  agreed  to  abolish  the  court  of  errors  as  now 
organized,  and  to  substitute  in  its  place  a  new  court 
of  appeals.  That  was  not  the  recommendation  of 
the  majority  of  the  committee  alone  All  the  mi- 
nority reports  recommended  the  same  thing — 
though  they  differed  somewhat  as  to  the  mode  in 
which  this  appeal  court  should  be  organized.  And 
he  felt  warranted  in  saying  further  that  the  sense 
of  this  body  was  decidedly  averse  to  the  common 
pleas  as  now  organized. 

This  ancient  institution,  of  which  we  had  heard 
so  much,  was  gone,  and  gone  forever.  And  the 
question  which  would  probably  occasion  the  most 
difficulty,  was  whether  we  should  establish  such 
a  court  in  this  constitution,  and  if  so,  what  kind 
of  court  it  should  be — or  whe'her  the  whole  sub- 
ject should  be  left  to  the  legislature.  Mr.  WARD 
glanced  at  the  various  substitutes  for  the  county 
court  that  had  been  proposed — showing  that  they 
all  contemplated  an  entirely  different  thing  from 
the  present  county  court,  and  in  fact  an  entire 
extinction  of  the  county  court  to  which  we  had 
been  accustomed,  and  with  which  some  insisted 
the  people  were  well  satisfied.  This  might  be 
said  of  the  plan  of  the  gentleman  from  New- 
York  (Mr.  O'CoNOR).  The  plan  of  the  gentle- 
man from  Oneida,  (Mr.  KIRKL AND,)  contemplat- 
ed a  circuit  court  to  all  intents  and  purposes — 
the  very  court,  as  some  say  proposed  by  the  ma- 
jority of  the  judiciary  committee.  So  with  the 
playi  of  the  gentleman  from  Herkimer,  (Mr. 
LOOMIS.)  That  too  proposed  a  court  of  a  higher 


grade  than  the  present  county  court— having  in 
fact  all  the  attributes  of  a  circuit  court.  The 
plan  of  the  gentleman  from  Ontario,  (Mr.  WOR- 
DEN,)  from  New  York,  (Mr.  STEVENS,)  and  from 
Chautauque,  (Mr.  MARVIN,)  also  contemplated 
very  much  the  same  plan— all  these  contemplat- 
ing a  presiding  judge,  with  associates  in  the 
counties— this  presiding  judge  being  scarcely  in- 
ferior in  qualifications  and  learning  to  a  judge  of 
the  supreme  court.  Certainly  neither  of  these 
was  the  inferior  court  which  gentlemen  professed 
to  desire  and  to  erect.  Again  the  gentleman  from. 
Otsego  (Mr.  ST.  JOHN,)  would  have  one  of  the 
judges  of  the  supreme  court  preside  in  the  gene- 
ral sessions  or  common  pleas — and  in  other  re- 
spects would  make  a  circuit,  not  a  county  of  it. 

It  did  not  differ  materially  from  the  plan'  of  the 

gentleman  from  Catturaugus  (Mr.   CROCKER). 

This  plan,  though  in  many  respects  a  good  one, 
did  not  meet  with  favor.  Others  had  suggested 
plans  for  a  county  court,  and  we  must  select  be- 
tween them  all.  *  That  we  could  not  have  the  first 

judge  and  four  associates,  was  definitely  settled 

and  the  question  was  whether  we  would  retain  it 
in  any  shape.  It  was  a  fact  within  the  know- 
ledge of  all,  that  our  county  expenses  had  in- 
creased, were  increasing,  and  would  increase,  un- 
less we  adopted  some  remedy.  Mr.  W.  said  he 
had  read  with  attention  the  report  of  Mr.  J.  J. 
TAYLOR,  from  the  select  committee  on  this  sub- 
ject, and  he  proposed  to  make  a  slight  reference 
to  the  results  which  had  been  brought  out  in  re- 
gard to  the  expenses  of  this  court  compared  with 
the  circuit. 

And  he  desired  in  connection  with  this,  to  im- 
press upon  the  Convention  the  importance  of 
looking  to  the  interests  of  the  people  as  well  as 
the  suitor,  in  this  matter — and  to  urge  that  whilst 
we  provided  good  courts  for  the  litigants,  it  was 
our  duty  to  save  to  the  people  as  much  as  possible 
of  the  expense  to  which  they  were  now  subject- 
ed. It  appeared  that  the  amount  allowed  county 
judges,  for  attending  county  courts  and  courts  of 
over  and  terminer,  during  the  year  1845,  in  forty- 
three  counties  from  which  returns  had  been  re- 
received,  was  $14,063.  The  remaining  sixteen 
counties,  would,  at  the  same  ratio,  increase  the 
amount  beyond  $20,000,  which  would  be  some 
$8,000  more  than  the  salaries  of  all  the  circuit 
'udges,  or  the  salaries  of  the  justices  of  the  su- 
preme court  and  the  chancellor.  The  whole 
aumber  of  causes  tried  in  the  common  pleas  court 
in  the  same  counties,  with  the  exception  of  the 
city  and  county  of  New- York,  was  GO],  while  the 
whole  number  of  eases  tried  at  the  circuits,  with 
:he  same  exception  of  the  city  and  county  of 
New- York,  was  7 10.  The  verdicts  at  the  cir- 
cuits, with  the  like  exception,  amount  to  $232,- 
31G  GO;  in  common  pleas  to  $37,7G4  85-  beimr 
|196,601  7]  less  than  the  verdicts  rendered  at 
the  circuits.  The  common  pleas  courts  were  in 
session,  to  discharge  the  small  amount  of  business 
in  the  counties  mentioned,  one  thousand  six  hun- 
dred and  fifty-six  days :  the  circuits  four  hundred 
and  eighty  days.  Making  a  difference  of  one 
;housand  one  hundred  and  sixty-eight.  There 
was  allowed  as  chargeable  to  counties,  for  fees 
during  that  year  in  these  county  courts  of  grand 
$11,232  98 


For  petut  j  u  i  or» 

Of  sheriils  and  constables- 


68 


19,219  64 
9,93867 


746 


Criers 1672  Oc 

County  clerks 4169  91 

Add  the  amount  paid  county  judges  alieady 

...... '.     14,  653  0( 


$60,915  22 

Gentlemen   could  calculate  for  themselves  to 
what  extent  the  remaining  sixteen  counties  wouk 
swell  the  aggregate  expenses,  to  which  must  be 
added  the  heavy  expense  of  sustaining  poor  wit 
nesses,  while  attending  court. 

Mr.  WARD  here  gave  way  for  a  motion  to  rise 
which  prevailed,  and 

The  Convention  took  a  recess. 

AFTERNOON  SESSION. 

Mr.  WARD  (having  the  floor  from  the  morn- 
ing)  said    that  when   the  committee   rose    this 
morning,  he  had  shown  from  the  report  of  the 
gentleman  from  Tioga   (Mr.  J.  J.  TAYLOR)  tha 
one-half  of  the  expense,  if  not  more,  of  our  coun 
ty  court  system,  might  be  saved  if  we  could  have 
a  court  that  would  dispatch  business  with  the  ra- 
pidity and  ease  with  which  it  had  been  dispatch- 
ed by  the  circuit  judges.     Half  the  judges  provi- 
ded for  in  this  article   could  do   the  business  now 
done  by   the  circuit  judges.     But  in  the  remarks 
he  had  submitted,  he  had  had  reference  simply  to 
county   expenses.     But  there   was  still  another 
consideration   that  would  not  be  without  weight 
with  those  whom  he  had  the  honor  of  addressing 
— for  they   were  all  probably   familiar  with  the 
evil   to   which   he   should   advert — it  was  well 
known  at  least  to  the  profession,  that  by  reason 
of  the  delays  in  our  courts — to  the   circumstance 
that  the  court  found  itelf  unable  to  get  through  its 
calendar — the  jurors   and  witnesses  whose  com- 
pensation was  any  thing  but  adequate  to  their  ex- 
penses, to  say  nothing   of  the  loss  of  time  in  at- 
tending upon  the  court,  were  often  compelled  to 
return   again,   and  term  after  term  to   attend  the 
trial  of  the  deferred  causes.     If,  then,   in  the  re- 
organization of  our  judiciary  system,  it  was  pos- 
sible for  us  to  establish  such  a  court  as  should  be 
able  to  dispatch  business,  civil  and  criminal,  with 
ease  and  facility,  and  to  the  satisfaction  of  parties 
and  the  public,  so  that  the  docket  at  each  term 
should  be  cleared,  we  should  not  only  secure  a 
vast  saving  to  the  counties,  but   a  vast  saving  in 
the  aggregate,  in  time  and   money,  to  those  who 
received  no  remuneration  in  fact,   but  who  were 
obliged,  under  severe  penalties,   to   attend  these 
courts.     But  having  said  thus  much  this  morning 
in  references  to  the  re-crganization  of  the  com- 
mon pleas,   he  proposed  to  advert  a  moment   to 
the  disposition  proposed  to  be  ^nade  of  this  sub- 
ject by  the  majority  of  the  judiciary  committee. — 
They  proposed  to  leave  this  whole  matter  of  the 
organization  of  inferior  courts  to  the   legislature, 
as  the  U.  States  Constitution  left  it  to  Congress 
to  create   courts  inferior  to  the  supreme  court  of 
the  U.  S.     His  own  impression  was  that  the  pub- 
lic interest  would  be  better  subserved  by  leaving 
it  there.     He  was  not,  however,  so  wedded  to  his 
opinion  that  he  could  not  yield  it,  if  the  majority 
here  should  think  otherwise.  But  if  left,  as  the 
majority  ui  the  judiciary  committee  udvintd,  to  ihe 
good  sense  of  the  legislaiuie,  under  a  lull  view  ol' 
the  operation  of  the  system, he  must  be  permitted  to 
say  that  this  power  could  scarcely  be  more  wisely 
vested,  if  the  legislature  deem  it  advisable  to  or- 


ganize  such  a   court,  they  ui  duublfdly  would    do 
so,  and  we   should    save  ourselves  a    great  deal  of 
time  and  trouble  in  e?ideavoring  to  icconeile  utws 
on  this   difficult   subject.     How  did    this    ma:ter 
stand  ?     Probably  one   of  the   best   courts  in  the 
state  was  the  creature  of  legislation.     He  alluded 
to  i he:   superior    court    in  the   cny  ot  New  York. 
There  could  be  no  doubt  that  there  should  be  (•;><  - 
cial  provision  made  lor  the  large  cities — as  requir- 
ing a  greater  judicial  force  than  the  rural  districts 
of  the  slate.     It  wa*  important  especially  for  such 
large  cities  as  New  York  and  Brooklyn,  that  the 
power  of  establishing    interior  com  is  there,  or  <. .{' 
regulating  such  as    might    be  established   by  this 
constitution,  should  be  left  to  the  legislature.    He 
would  by  no    means  lake    this  power  from  theli- 
gislaiute.     Btooklyn  prcbabh  now  required  a  su. 
perior  court.      This  would  doubtless   be  the  case 
wiih  Buffalo,  Rochester,  Utica,  Troy  and  Aibauy, 
and  that  loo  at  no  distant  day.     It    was  beyond  a 
doubt    that    they  would    require   additional  force 
there.     II  the  power  to    es<»,!biish    these    interior 
tribunals  was  left  with  the  legislatuie,  there  could 
be  no  doubt,  from  what  had   been  done,  that  they 
world    provide  such   tribunals  as  the    public  exi- 
gencies from  time  to   tune  might    demand  ;  and 
more  satisfactorily  meet    ihesa  requisitions    than 
we  could  hope    to  do    in    advance.     iVir.W.    re- 
marked   here    that  it  was  a  most    gsatifyin^    cir- 
cumstance   to    him,    ihar    in  the    course  of    this 
whole   discussion,  not   a  word  of  complaint    had 
fallen  from    any  gentleman,   in    disparagement  of 
the  integrity,    intelligence,  ability,   and    learning 
of    our    present    chancellors    and    judges.     And 
the    fuel   could    not    bui     be     gratifying    to    the 
incumbents  of  these    high  stations,  (be  results   <  f 
whose  arduous  labors  had  been  more  or  less  passed 
n    review    before  u^.     For    himself,  he  regarded 
fhem   with   pride,    as  a   citizen  of  New  York,  :<s 
men  who  had  contributed  much  to  the  tame  of  ihis 
yreat  state.     Their  decisions  were  not  merely  re- 
garded as  high  authority  here  and  throughout  the 
union,  but  they  were  sought  for  arid  read  abroad; 
and  had    been  read    as    authority  in  the   English 
courts.    Th^re  was  no  feeling,  he  was  sure,  either 
here  or  in  the    public    mind,   against    these    able 
'unctionaries;  and    if   this    reorganization    of  ifm 
courts  should  Lake  place,  and  the  constitution  lati- 
fied    by  the  people,   he   should    teel    paiticulsrly 
gratified   to  see   the  honorable  and   distinguished 
gentlemen  now  holding  judicial  stations  under  the 
present  system,  provided  fo<  under  the  new.    No 
doubt    that  would   be    so,    if  they  had  a    desiie  |r» 
continue  in  this    arduous   and  responsible  field  of 
duty. 

Mr.  W.  here  glanced  at  the  proposition  to  pay 
he  surrogates  a  salary  from  the  county  treasury, 
f  called  upon  to  vote  on   such  a  proposition,  he 
ihould  vote  against  it.     He  thought  the  free  sys- 
em  decidedly   preferable ;  the  fee  bill  has  been 
•educed.     It  was   a  system  under  which  we  had 
long  lived,  and  which  the  legislature  could  at  any 
time  adjust,  to  meet  any  complaints  that  might 
exist  against  it.     Already  had  the  legislature  act- 
ed in  reference  to  the  fees  of  these  officers ;  and 
he  believed  that  since  that  time,  there  had  been 
no  complaints  against  the  system.     At  all  avents, 
he  should  very  much  regret  to  see  the  counties 
burthened  with  the  additional  expense  of  a  saltry 


747 


of  $3000  per  year  for  the  surrogate.     Better  leave 
that  where  it  is. 

Mr.  W.  next  proceeded  to  a  brief  review  of  the 
several  plans  of  a  judiciary  system  that  had  been 
proposed  by  the  members — remarking  that  the 
plan  of  the  majority  of  the  judiciary  committee, 
in  his  opinion,  was  not  only  in  all  respects  ade- 
quate to  the  business  of  the  state,  but  in  the  main 
the  plan  which  best  comported  with  his  views  of 
a  judiciary  system.  The  plan  of  the  hon.  gentle- 
man from' New- York,  (Mr.  O'CoNOR,)  one  of  the 
judiciary  committee,  provided  for  a  supreme 
court  to  consist  of  a  chief  justice  and  twelve  jus- 
tices ;  any  of  whom  may  hold  the  court — civil 
causes  at  issue  to  be  tried  before  any  of  the 
judges — any  three,  or  any  one  of  them  with  one 
or  more  county  judges,  to  hold  county  courts,  and 
courts  of  over  and  terrniner  and  general  jail  de- 
livery—all causes  and  matters  depending  in  the 
court  of  chancery  to  be  transferred  to  the  supreme 
court.  This  plan,  as  far  as  regarded  the  organi- 
sation of  the  supreme  court,  was  the  same  in 
every  respect,  as  the  present  system,  with  the 
addition  of  ten  judges,  which  seemed  to  meet 
with  no  favor  in  this  Convention.  The  terms  of 
the  court  would  no  doubt,  be  alternate  between  the 
cities  of  New- York,  Albany,  Utica  and  Roches- 
ter, as  now.  If  there  was  any  weight  in  the  ob- 
jection urged  to  the  plan  of  a  majority  of  the  com- 
mittee that  the  number  of  judges  would  not  be 
adequate  to  discharge  all  the  business  which 
might  come  before  them,  the  same  objection  ap- 
plied with  much  greater  force  against  this  plan  of 
Mr.  O'CONCR'S.  For  these  thirteen  judges  are 
required  to  perform  all  the  equity,  civil  and 
criminal  bi(sin«  ,-,s  in  the  state,  and  to  hold  the 
circuits  and  courts  of  oyer  and  terminer  in  the 
several  counties. 

Mr.  O'CONOR  said  he  provided  for  forty-seven 
judges. 

Mr.  WARD  alluded  to  the  matter  of  appeals, 
and  to  the  great  complaints  made  in  the  expense 
now  of  taking  a  cause  up  from  court  to  court. — 
The  plan  of  the  hon.  gentleman  from  Oneida, 
(Mr.  KIRKLAND,)  another  of  the  judiciary  com- 
mittee, provided  for  dividing  the  state  into  six 
districts,  with  a  superior  court  in  each  district, 
to  have  jurisdiction  in  all  matters  of  law  and 
equity  within  the  state,  and  such  supervisory 
and  other  power,  over  inferior  tribunals  and 
officers  within  each  district,  as  now  existed 
in  the  supreme  court — subject  to  the  appellate 
jurisdiction-  of  the  supreme  court  of  appeals. — 
i'ht;  city  ot  New-Yu:k  lo  be  the  first  dismci,  and 
to  have  six  judges;  each  of  the  other  distiicis. 
lour;  numbering  in  all  twenty-six  judges  ol  the 
superior  court,  beside*  the  judges  of  the  court  ol 
a.-pt-ais — the  laiter  as  well  as  the  judges  ot  the 
superior  Court  to  hold  circuits  and  courts  of  oyer 
and  terminer,  with  whom  were  lobe  associated 
two  judges  of  ti)9  common  pleas;  the  judges  to  be 
elected  and  to  hold  their  offices  Tor  ten  years. — 
The  gentleman  lii-.d  rnade  no  provision  for  a  su- 
preme court  witli  general  jurisdiction,  but  there 
\\f<  to  b>'  an  appeal  from  the  *tipenor  court  duect- 
ty  to  the  couit  of  appeals — the  latter  to  have  ap- 
pellate jurisdiction  only.  The  numerical  force  of 
the  court  of  appeals  and  supreme  court  in  ihis 
plan  exceeded  the  number  recommended  by  the  j 
loiumitiee.  It  did  not  present  the  advantage  of] 


its  being  a  less  expensive  judiciary  system  than 
the  present  one.  As  regarded  this  Superior  court, 
it  presented  no  difference  from  that  court  as  now 
provided  tor  by  statute  law,  for  the  city  of  New- 
York.  Mr.  W.  confessed  that  he  could  not  view- 
it  as  possessing  the  merits  which  the  author  seem- 
ed  to  think  it  did,  and  which  he  had  maintained 
with  much  eloquence. 

He  (Mr.  W.)  thought  that  the  plan  of  taking 
appeals  in  this  way  would  be  attended  with  great- 
er expense  and  greater  delay  than  the  present  sys- 
tem. The  committee's  plan  is  preferable;  it  is  a 
Supreme  court  with  four  judges  for  each  Senate 
District ;  they  are  to  hold  the  Circuit  courts  and 
Oyer  and  Terminer. 

Mr.  KIRKLAND  said  that  those  superior  courts 
would  have  the  same  power  as  the  Supreme  court; 
as  much  as  the  courts  in  Massachusetts,  and  double 
that  of  those  in  Connecticut.  There  was  to  be  no 
intermediate  appeal. 

Mr.  WARD :  No ;  the  appeals  are  to  be  had  di- 
rectly from  this  inferior  court  to  this  superior 
court.  He  could  see  no  difference  between  that 
plan  and  the  plan  of  a  majority  of  the  committee, 
except  that  the  plan  of  the  committee  was  the 
best.  The  plan  of  the  honorable  gentleman  from 
Seneca,  (Mr.  BASCOM,)  another  member  of  the 
judiciary  committee,  provided  for  the  election  of 
thirty-two  judges — the  state  to  be  divided  into 
four  judicial  districts — circuit  sessions  to  be  held 
by  one  of  the  judges  of  the  Supreme  court  in 
each  of  the  counties  of  the  judicial  district,  for 
the  trial  of  all  issues  civil  or  criminal — the  sur- 
rogate and  one  of  the  justices  of  the  peace  to  be 
associated  with  the  circuit  jud^e — bane  sessions 
to  be  held  in  each  county  by  not  less  than  three, 
nor  more  than  four  judges  of  the  superior  court, 
to  review  the  decisions  and  proceed ingsot  the  cir- 
cuit sessions,  and  to  transact  such  other  duties  in 
relation  to  the  administration  and  the  establish- 
ment of  lights,  as  shall  be  prescribed  by  lav% — ap- 
peal sessions  composed  of  the  judges  whose  term 
of  office  shall  be  within  one  year  ot  its  expiration, 
to  be  h-eld  in  the  several  judicial  districts.  The 
honorable  gentleman  seemed  to  think  that  the  legal 
business  in  the  state,  and  therefore  dispensed  with 
the  court  of  errors  o^r  appeals,  and  the  court  of 
common  pleas,  which  the  gentleman  thought 
worse  than  useless.  It  was  the  same  in  regard 
to  the  number  of  judges  as  the  committees; 
it  has  many  good  points  but  has  not  the  pre- 
ference as  a  whole.  Mr.  W.  said  he  would  not 
detain  the  committee  with  any  further  remark 
on  this  plan  than  this  :  that  the  people  of  this 
state  had  been  so  long  accustomed  to  a  court 
of  last  resort  to  pass  upon  proceedings  in 
these  inferior  courts  that  they  were  not  yet  pre- 
pared to  dispense  with  it.  The  plan  of  the  hon- 
orable gentleman  from  Ontario  (Mr.  WORDEN) 
provided  for  a  court  for  the  correction  of  errors, 
a  court  of  equity,  a  supreme  court,  county  courts, 
and  courts  of  oyer  and  terminer,  and  such  inferi- 
or courts  as  may  be  prescribed  by  law — the  court 
of  last  resort  to  consist  of  a  chief  justice  and  nine 
associate  justices — the  court  of  equity  of  a  chief 
justice,  and  not  less  than  four  associate  justices — 
the  supreme  court  of  a  chief  justice  and  twelve 
associates,  any  four  of  them  to  hold  the  court — the 
state  to  be  divided  into  not  less  than  five  districts 
— terms  of  the  supreme  court  and  of  the  court  of 


748 


equity  to  be  held  in  each  judicial  district— th 
legislature  to  have  power  to  confer  equity  powei 
on  the  supreme  court.     This  plan  in  its  main  fea 
tare — the  separation  of  the  equity  and  law  juris 
diction — having  been   in  effect  rejected  by  th 
Convention — it  might  be  regarded  as  wholly  ou 
of  the  question,  and  he  should  not  remark  furthe 
on  it.     Such  a  plan  can  never  be  adopted   by  th 
Convention ;  it  not  only  retains  all  the  objection 
able  features  of 'the  old  system  ;•  but  goes  farthe 
and  confers  equity  powers  on  the  inferior  courts 
The  plan  of  the  honorable  gentleman  from  Otse 
go,  (Mr.  ST.  JOHN,)  vested  all  the  judicial  powe 
in  a  supreme  court,  to  consist  of  a  chief  justic 
and  sixteen  associates,   the  former  to   be  electe 
by  the  people — the  state  to  be  divided  into  eigh 
judicial  districts,-  and  courts  to  be  held   in  eac! 
justices'  courts  to  have  original  jurisdiction  in  al 
cases  where  the  actual  balance  between  the  par 
ties  does  not  exceed  $250.     It  differs  from  the  plai 
of  Mr.  O'CoA-oR  only   in  adding  three  judges. — 
There  was  no  special  provision  here  conferring 
equity  powers   on  the   supreme  court,  nor  for 
court  of  appeals,  and  the  plan  was,  it  seemed  t 
him,  in  other  respect*  imperfect.     Mr.  ST.  JOH 
proposes  to  confer  much  greater  power  than  the 
committee  does  on  the  Legislature.     But  so  far  a 
allowing  this  circuit  judge  to  hold  the  oyer  an* 
terminer,   he  (Mr.  W.)  had   no   objection.     Am 
it  must  be  manifest  that  if  the  present  judicia 
force   in  our  court   of  chancery  r  supreme  am 
circuit  courts  was  not  adequate  to  transact  the 
present   business,   that  the    force    proposed    in 
this   plan   would   be  equally  inadequate.      The 
plan  of  the  honorable  gentleman  from   Genessee 
(Mr.  TAGGAKT)  vested  on  the  judicial  power  in 
a  supreme  court,  and  in  district,  circuit,  surrogate 
and  justices  courts— -the  supreme  court   to   have 
appellate  jurisdiction,  and  to  consist  of  eight  jus- 
tices— the  state  to  be  divided  into  four  districts— 
a  district  court  to  be  held  in  each  with  such  equi- 
ty powers  as  the  legislature   might  confer — five 
judges  to  be  elected'in  each  district,  in  all  twen- 
ty-eight— the  supreme  court  to  hold  one  term  in 
each  and  every  year  by  not  less  than   three   nor 
more  than  four  judges— circuit  courts  to  be   held 
in  each  county  by  a  district  judge  or  a  justice   of 
the  supreme  court— the  surrogate  and  one  justice 
of  the  peace  to  be  associated  with  a  supreme  court 
judge  in  all  criminal  cases — the  legislature  to  have 
power  to  establish  inferior  courts  in  counties  hav- 
ing more  than  (JO/JOO  inhabitants,  and  to  confer 
equity  powers  on  them.     He  (Mr.  T.)   probably 
proposed  to  confer  equity  jurisdiction  on  all  these 
courts;  and  his  highest  term  of  office  is  14  years. 
Mr.  W's.  objection  to  this  plan   was   the  entire 
change  which  it  proposed  in  our  judicial  system, 
and  the  absence  in  it  of  any  feature  answering   to 
our  present  court  of  errors.     So  great  a  change 
he  could  scarcely  expect  would  be  well  received 
by  the  people.     Again  his  supreme  court,  except 
as  regard   to   the  members  is  the   same   as   the 
present  supreme  court.     It  will  save  us  delay   or 
expense,  and  these  are  the  only  grounds  of  com- 
plaint against  tho  present  judicial   system.     The 
plan  of.  the  honorable  gentleman   from   Chautau- 
que  (Mr.  MARVIN)  vested  the  judicial   power  in 
a  court  for  the  trial  of  impeachments,   a  court  of 
appeals,  chancery,  supreme  court,  common  pleas, 
surrogates'  and  justices'  courts,  and  courts  of  oyer 


and  terminer— the  State  to  be  divided  into  com- 
mon pleas  districts — each   of  them   to   choose   a 
president  judge  of  the  common  pleas,  to  preside 
m  those  courts  and  hold  general"  sessions  of  the 
peace  in  each  county.     This  plan  was  in  fact  the 
present  system,  revised  and  enlarged   upon— and 
from  the  votes  already  taken,  it  was  manifest  that 
it  could  not  find  favor  here,  or  elsewhere.     It  is* 
not  such  a  system  as  this  Conventi®n  will  adopt 
now,  or  the  State  adopt  hereafter.     It  will  much 
increase  the  expense,  and  add  greatly  to  the  num- 
ber of  officers  and  also  add  to  the  delay.    The  au- 
thor of  this  plan  resided  near  Pennsylvania,   and 
no  doubt  from  having  attended  the  courts  of  that 
State,  had  become  somewhat  wedded  to  that  sys- 
tem.    The  judicial  power  of  that  State  was  vest- 
ed in  a  supreme  court,  common  pleas,  oyer   and 
terminer,  an  orphan's  and  a  register's  courts,  a 
court  of  quarter  sessions  for  each  county,  and  in 
justices  of  the  peace.     The  judges  of  the   courts' 
of  record  were  appointed  by  the  Governor  and  Sen- 
ate—the supreme  court  judges  holding  for  fifteen, 
and  the.presjdent  judges  of  the  common  pleas  for 
ten  years — the  associate  common  pleas  judges  for 
ive.    The  jurisdiction  of  the  supreme  court  judges 
is  coextensive  with  the  state,  and  they  held  courts 
of  oyer  and  terminer ;  so  did  the  president  judges- 
and   one  associate.     The   plan   of  the  judiciary 
committee  had  decided  advantages  over  the  Penn- 
sylvania system.     The  supreme  court  and  com- 
mon pleas  of  that  state  were  the  only  courts  of 
common  law  jurisdiction,  and  the  supreme  the 
only  court  of  appeal.     This  plan  allowed  an  ap- 
>eal  from  the  circuit  court  to  the  supreme  court, 
and  thence  to  the  court  of  appeals,  and  the  duties 
•equired   of  the  circuit  judge  were  the  same  as 
hose  performed  by  the  presiding  judge  in  Penn- 
ylvania.     And  if  two  judges  were  to  be  elected 
n  each  county  to  sit  with  the  presiding  judges  in 
he  common  pleas,  then  it  was  obvious   that  we 
ould   dispense  with  a  part  of  the  judicial  force 
>rovided  for   in  the  committee's  report — for  we 
hould   then  have  a  force  more  than  adequate  to 
ransact  all  the   equity  and  civil  business  at  cir- 
uit  and  in  bane. 

Mr.  W.  continued:  Other  gentlemen  had  spok. 
n  of  the  immense  business  of  their  districts 
n  the  large  cities,  and  especially  at  the  west. — 
"^he  hon.  gentleman  from  JCrie,  (Mr.  So^w,)  had 
welt,  in  the  com  sent  his  remarks,  at  some  length, 
pun  it.  Now,  he  (Mr.  WARD,)  was  willing  to 
oncede  some  extraordinary  judicial  aid  to  ihe 

rge  cities;  besides  that  ot  New  York;  for  in. 
tance,  the  city  of  Buffalo;  that  city  was  growing 
vith  astonishing  rapidity  iu  wealth,  enterprise, 
itelligence,  and  commercial  importance;  she 
ould  soon  vie  with  the  Atlantic  cities,  arid  the 
ay  is  not  tar  distant  when  she  will  become  one 
f  the  greatest  cities  in  the  Union.  All  the  iin- 
ense  amount  of  commerce  and  produce  from  the 
ighty  and  far  west  must  pass  down  our  great 
dkes  to  pour  treasures  into  the  growing  and  widen- 
g  lap  of  the  city  of  Buffalo.  Slate  after  State  will 
rise  in  that  most  remarkable  region,  the  great  west, 
eopled  by  a  race  or  the  most  industrious  and  en- 
n  rising  ot  the  sons  of  men,  and  overflowing 
ith  intelligence,  wealth  and  eneray  The  En- 
ish  language  contained  no  words  adequate  to  dt- 
ribe  the  future  prospects  ol  that  wonderlul  re- 
oi),  the  recipient  ol  whose  treasures  must  be 


Buffalo;  and  therefore  that  city  must  become  th 
principal  city  of  the  western  world.  Such  a  oily 
therefore  (with  others)  must  have  an  adequate  an' 
efficient  judicial  force  ;  she  must  have  her  superio 
court,  and  a  supreme  court  lor  rhat  county  anc 
district ;  and  whatever  else  i.s  necessary  and  ade 
quate  to  her  wants.  Now,  therefore,  the  question 
is,  is  the  plan  proposed  bv  the  committee  adequate 
to  what  is  thus  required?.  Distinctly  and  une- 
quivocally, he  thought  that  it  was!  He  could 
speak  tor  the  district  he  had  the  honor,  in  part 
to  represent — and  his  imnression  was,  from  his 
knowledge  of  it,  that  there  was  not  a  district 
in  the  state  where- there  was  so  much  litigation  in 
law  and  equity,  as  in  that  district.  The  chair- 
man of  the  judiciary  committee  (Mr.  RTJGGLES,) 
had  been  for  years  the  judge  of  that  circuit — and 
to  his  (Mr.  W.'s)  knowledge,  he  had  transacted 
not  only  all  the  equity  business — which  was  there 
very  large  owing  to  the  fact  that  it  had  been  long 
settled,  and  had  a  great  amount  of  equity  cases 
growing  out  of  the  settlement  of  estates  (the  equity 
business  of  which  district  exceeds  probably  that 
of  any  other  in  the  state— but  had,  with  perfect 
ease  and  facility,  transacted  all  the  business  ol 
the  circuit — all  the  civil  and  criminal  business  at 
every  term— leaving  nothing  to  go  over,  when 
the  cases  were  ready.  And  if  our  circuit  judges 
could  perform  all  that  duty,  with  ease  and  facili- 
ty, and  with  such  benefit  to  suitors  and  the  pub- 
lic— with  satisfaction  to  the  people — with  how 
much  more  ease  could  this  business  be  done  un- 
der the  system  proposed  by  the  majority  of  the 
judiciary  committee.  If  you  add  one  more  judge 
to  a  circuit,  and  let  him  go  through  his  circuit 
and  try  the  bvilance  of  the  business  left  at  the  com- 
mon picas  and  general  sessions.  It  could  be  done 
with  vast  ease,  and  then  you  will  have  two  judges 
idle.  But  you  say  they  will  have  to  take  testi- 
mony in  chancery  cases  ;  well  that  will  not  amount 
to  one-eighth  of  the  testimony  now  taken  in  all 
these  circuit  court  cases  ;  one  judge  could  do  it  in 
one-fourth  of  the  time  and  one  judge  still  be  idle. 
Then  these  four  judges  can  do  all  the  circuit  duty 
. — the  civil  duty — the  criminal  duty  and  the  equity 
cases  and  hold  four  terms  in  bane,  and  discharge 
all  with  ease.  These  facts  he  regarded  as  con- 
clusive and  as  worth  more  in  arriving  at  a  correct 
result  than  any  mere  arithmeticarcalculations 
that  could  be  made.  Mr.  W.  submitted  some  re- 
marks in  regard  to  the  details  of  the  plan  of  the 
judidiciary  committee,  expressing  a  preference 
for  an  election  of  judges  of  the  court  of  appeals 
by  general  ticket,  rather  than  to  have  part  of 
them  elected  by  the  whole  state  and  part  by  dis- 
tricts. At  the  same  time,  he  should  vote  on  all 
these  matters  of  detail  with  a  view  to  harmonize 
opinions  and  to  procure  for  the  state  the  very  best 
system  that  could,  under  the  circumstances,  be 
agreed  on. 

Mr.  W.  would  say  in  conclusion  that  it  was  not 
to  be  presumed  that  the  judiciary  committee,  in 
presenting  their  report  1'or  the  consideration  of 
the  Convention,  entertained  the  opinion  that  it 
was  in  every  respect  perfect,  but  they  presented 
it  alfer  having  devoted  much  time  to  its  conside- 
ration, as  the  best  plan  they  could  devise,  leav- 
ing it  to  the  combined  wisdom  of  this  Convention 
to  alter,  modify  or  confirm  the  sumo  as  in  its 
judgment  it  should  seem  meet;  and  from  his  ac- 


quaintance with  the  members  of  this  Convention 
individually,  he  had  no  hesitation  in  stating  as  his 
firm  belief,  that  they  would  meet  the  subject  in 
a  spirit  of  mutal  concession  and  compromise,  and 
if  they  should  err  in  coming  to  a  result,  it  would 
not  be  owing  to  a  wish  to  gratify  personal  consid- 
erations nor  a  desire  to  promote  personal  aggran- 
dizement, but  to  an  error  of  judgment.  We  must 
therefore  meet  the  question  promptly,  fearlessly 
and  honestly,  and  if  the  provisions  in  this  article 
were  not  in  exact  accordance  with  our  own  de- 
sires, let  us  nevertheless,  yield  to  the  wishes  of 
the  majority  of  this  Convention,  and  he  trusted 
when  the  people  came  to  act  upon  it,  they  would 
be  actuated  by  the  same  spirit  and  would  approve 
and  ratify  our  doings. 

Tne  true  plan  to  proceed  upon,  in  the  opinion 
of  Mr.  W.,  was  the  one  recommended  by  the 
judiciary  committee;  that  would  effectually  an- 
swer for  the  despatch  of  business,  and  for  the  at- 
tainment of  sound  and  cheap  justice.  When  they 
came  to  thre  details,  and  come  to  vote  thereon,  he 
would  feel  constrained  to  vote  for  a  general  tick- 
et. Gentlemen  had  spoken  of  the  uniformity  in 
the  decisions  of  these  courts.  If  there  was  any 
thing  in  that  complaint,  you  must  remember  you 
have  eight  circuits  now ;  each  judge  hears  his 
own  causes  and  decides  in  his  own  way ;  so  you 
have  fifty-nine  courts  of  common  pleas.  They  de- 
cide according  to  the  law  of  the  land;  and  where 
they  have  differed,  it  is  taken  to  the  court  above ; 
and  it  is  in  this  upper  court  that  we  have  to  look 
for  uniformity  of  decisions. 

We  have  tried  our  old  system :  it  has  worked 
well;  except  that  it  has  been  overloaded  by  a 
flood  of  business — this  has  overwhelmed  it.  We 
are  about  to  make  an  experiment.  We  can  only 
make  the  best  effort  in  our  power  ;  it  is  our  sa- 
cred duty  and  proud  privilege  to  do  this  ;  and  for 
his  own  part  he  (Mr.  W.)  was  entirely  satisfied 
that  every  gentleman  would  discharge  his  duty 
faithfully  and  honorably  to  his  constituents.  If 
we  err  it  will  not  be  owing  to  a  want  of  zeal  or 
exertion  or  watchfulness  on  any  point;  but  ari- 
sing from  the  common  imperfections  to  be  found 
in  human  nature  every  where. 

AFTERNOON  SESSION. 

Mr.  KEMBLE  submitted  the  following,  with 
a  view  to  have  it  printed,  and  to  move  it  at  a 
proper  time,  as  an  amendment: 

1.  The  Legislature  shall  provide  against  frivolous  and 
vexatious  appeals  and  writs  01  error,  by  requiring  that  a 
udgment  or  decree  rendered  by  the  supreme  court,  shall 
>Q  executed,  notwithstanding  an  appeal  or  writ  of  error, 
upon  adequate  security  being  given  to  make  lull  restitu- 
ion  in  the  event  of  a  reversal  or  modification  ol  such 
udgment  or  decree,  or  appeal. 

THE  JUDICIARY. 

Mr.  MANN  submitted  the  amendments  in 
brm,  he  had  indicated  in  his  remarks  this  mor- 
ning. 

Mr.  VAN  SCHOONHOVEN  addressed  the 
Convention  at  much  length,  in  explaining 
at  he  conceived  to  be  the  views  of  the  people 
n  regard  to  the  re-organization  of  the  judiciary 
system.  They  did  not  expect  this  Convention  to 
establish  a  system  which  was  to  remain  unchang- 
ed for  a  half  or  a  whole  century.  They  intended 
hat  the  details  should  be  left  to  legislation,  and 
le  conceded  that  the  judiciary  committee  had 


75(T 


acted  o.i  this  principle.  They  expected  also  the 
aboliti  m  of  the  court  of  errors,  and  in  this  too 
the  judiciary  committee  had  met  their  expecta- 
tions. He  did  not  object  to  the  abolition  of  the 
court  of  chancery  'but  he  did  to  the  blending  of 
the  practice  in  law  and  equity.  Mr.  V.  S.  then 
proceeded  to  examine  the  details  of  the  report, 
of  most  of  which  he  was  in  favor.  He  was  in 
favor  also  of  a  common  pleas  of  some  sort,  but  not 
of  the  character  that  now  existed.  He  believed 
however,  that  no  system  amid  the  variety  of 
opinions  that  prevailed  could  be  settled  in  this 
Convention,  and  in  his  opinion,  therefore,  the  pro- 
vision of  the  report  giving  this  matter  to  the 
Legislature  was  abundantly  sufficient.  The 
legislature  could  create  local  courts  as  wisely  arid 
as  fully  meet  the  wants  of  the  State  in  regard  to 
them,  as  could  this  Convention,  and  the  legis- 
lature couid  also  reform  the  errors  of  its  own 
creating.  He  did  not  have  that  distrust  of  the 
Legi-  l.ature  which  seemed  to  characterize  some 
gentlemen.  In  conclusion  Mr.  V.  S".  said  that 
he  had  fully  reflected  on  the  report  of  the  major- 
ity, and  had  been  forced  to  conclude  that  unless 
that  report  was  'substantially  adopted — being  as 
it  was  b:~t  a  mere  designation  of  generalities  and 
not  of  detail — that  there  would  be  a  failure  to 
settle  upon  any  one  which  could  be  drawn  from 
the  conflicting  propositions  presented  by  gentle- 
men. 

Mr.  SHEPARD  urged  that  the  remaining  few 
minutes  which  were  allowed  to  the  committee  of 
the  wh'ue  on  this  question,  should  be  occupied 
he  voting  upon  the  amendments  proposed. 

Mr.  STEPHENS  for  the  purpose  of  disembar- 
rassing the  question  of  all  other  matters,  than 
that  simply  relating  to  the  formation  of  separate 
courts  of  common  pleas,  modified  his  amendment 
offered  on  Saturday  by  striking  out  all  that  re- 
lates to  the  election  of'  judges,  so  that  it  would 
read  as  follows : 

§  1.  There  shall  be  established  in  each  of  the  counties  of 
this  state  a  court  of  cornmun  pleas,  wiih  the  same  powers 
and  jurisdiction  which  now  belong  to  the  court  of  com- 
mon pleas  in  tl:e  several  counties  of  this  siate. 

§  There  shall  be  in  each  ol  tbe  judicial  districts  of  this 
state,  a  judge  who  shall  be  known  as  the  president  judge 
ol  the  court  of  common  pleas,  for  the  district  in  which  he 
shall  be  elected,  who  may  hold  courts  ol  common  pleas  in 
any  ot  the  cou ..tes  of  the  state,  and  who  shall  hold  his 
ollice  for  eight  years. 

Pending  a  conversation  which  then  ensued  the 
hour  of  six  arrived  and  in  pursuance  oi  the  order 
the  committee  rose,  and  reported  the  article  to 
the  Convention. 

Mr.  CHATFIELD  moved  that  the  committee 
have  leave  to  sit  again  upon  the  report  on  the 
codification  of  the  laws,  referred  to  same  com- 
mittee. 

Mr.  BROWN  moved  to  adjourn.     Agreed  to. 

TUESDAY,  (list  day)  August  25. 

The  Convention  met  this  morning  at  k  past  8; 
and  thert!  were  only  22  members  present  at  that 
hour. 

There  was  no  clergyman  present. 

Mr.  DODD  presented  I  he  memorial  from  citi- 
zens of  W;ishin^ton  county,^against  the  proposed 
plan  toN  take  away  the  literature  fund  trorn  the 
acadamies  of  the  st;itc.  Referred  to  the  appropri- 
ate committee  of  the  whole. 


Mr.  BERGEN  presented  a  irTeinnrial  from  citi- 
zens of  Km^s  county,  condemning  those  who  op- 
pose the  election  of  judges  by  the  people.  It  was 
lead  and  referred. 

Mr.  TUTHILL  presented  a  remonstrance  from 
citizens  of  Orange  county,  against  the  proposed 
diversion  of  ihf  literature  fund.  Referred  as  usual. 

The  PRESIDENT  presented  a  report  from  the 
Clerk  in  Chancery  of  the  4th  district,  relative  to 
the  funds  now  in  the  hands  of  the  Registers  and 
Clerks  of  the  Court  of  Chancery. 

On  motion  of  Mr.  MANN,  it  was  ordered  to  be 
printed  and  laid  on  the  table  until  the  other  re- 
ports should  come  in. 

CANALS  AND  FINANCES. 

Mr.  ANGEL  presented  a  plan  to  pay  the  debts 
of  the  State  as  a  substitute  for  the  report  on  the 
canals  and  finances  as  presented  some  time  since 
by  Mr.  HOFFMAN.  It  was  read,  as  follows : 

§  1.  The  distinction  between  the  general  fund  and  the 
canal  fund  is  abolished.  All  the  revenues  of  the  State, 
from  whatever  source  derived,  shall  constitute  a  fund, 
which  shall  be  deemed  the  St  ite  fund.  All  cents  owing 
by  the  State,  and  all  liabilities  incurred  by  the  State,  shall 
in  the  aggregate  be  denominated  the  State  debt. 

§  2.  Alter  paying  the  expenses  of  the  collection,  super- 
intendance  and  ordinary  repairs,  one  million,  six  hundred 
thousand  dollars,  of  the  revenues  ol  the  State  canals  shall 
in  each  h'scal  year,  and  at  that  rate  for  a  shorter  period, 
commencing  1st  June,  1846,  be  set  apart  as  a  sinking  fund, 
to  pay  the  interest  and  redeem  the  principal  of  the  State 
debt  until  the  same  shall  be  wholly  paid,  and  the  princi- 
pal and  income  of  the  said  sinking  fund  shall  be  sacrtdly 
applied  to  that  purpose  and  no  other 

§  3  The  surplus  revenues  of  the  said  canals,  after  paying 
the  said  expenses  of  said  canals  and  the  sum  appropriated 
by  the  preceding  section  as  a  sinking  fund,  shall  be  ap- 
plied in  such  manner  as  may  be  directed  by  law,  to  the 
payment  of  the  expenses  requisite  to  complete  the  Erie 
canal  enlargement,  and  the  expenses  requisite  to  com- 
plete all  such  other  canals  as  have  bi  en  commenced  and 
partially  completed,  under  and  by  virtue  of  any  of  the 
laws  of  the  State 

5)  4.  After  completing  the  aforesaid  enlargement  and  un- 
finished canals,  the  entire  nett  revenue  ol  all  the  canals  of 
the  State  shall  be  inviolably  applied  to  the  payment  of  the 
interest  and  the  redemption  of  the  principal  of  the  State 
debt,  until  the  same  be  fully  paid  and  extinguished. 

5.  The  legislature  shall  not  sell,  lease,  or  otherwise 
dispose  of  any  of  the  canals  of  the  State,  but  they  shall  re- 
main the  property  of  the  State  and  under  its  management 
forever. 

It  was  referred  to  the  committee  of  the  whole 
having  charge  of  the  reports  of  Mr.  HOFFMAN 
and  Mr.  BOUCK,  on  the  subject  of  the  canals, 
public  revenues,  finances,  and  state  debt — and  or- 
dered to  be  printed. 

Mr.  STOW  presented  the  following  resolu- 
tion:— 

Resolved,  That  the  Comptroller  be  requested  to  furnish 
a  statement  showing  from  what  sources  the  sums  paid 
f;om  the  treasury,  tor  the  support  of  the  government  Irom 
and  including  the  year  1817,  up  to  and  including  the  year 
1845, were  derived  in  each  year,  and  the  aggregate  amounts 
received  from  the  treasury  each  year  iiom  those  sources. 

It  was  adopted. 

-THK  JUDICIARY  SYSTEM. 

The  PRESIDENT  announced  the  unfinished 
business  to  be  the  article  on  the  judiciary,  as  re- 
ported by  the  committee  of  the  whole. 

Mr.  CHATFIELD  moved  that  the  committee 
have  leave  to  sit  again,  (as  he  proposed  last  night) 
in  order  to  consider  the  report  of  Mr.  WHITE,  on 
the  codification  of  the  laws;  which  report  had 
been  referred  to  the  same  committee  of  the 
whole. 

The  PRESIDENT   said  the   committee  of  the 


751 


whole  which  had  that  subject  in  charge  having 
been  discharged,  the  proper  motion  would  be  to 
'  recommit  that  of  Mr.  WHITE  to  a  committee  of 
the  whole. 

To  this  Mr.  CHATFIELD  assented,  and  a 
count  was  taken  :  ayes  4o,  noes  19 — no,  quorum, 
but  it  was  declared  to  be  carried. 

The  question  was  on  agreeing  to  the  1st  sec- 
tion, as  amended  in  committee. 

It  was  read  as  follows: 

&  1.  The  Assembly  shall  have  the  power  of  impeachment 
by  vhe  vote  ot  a  majority  o!  all  the  members  elected.  The 
court  lor  the  trial  ol  impeachmen  s  slull  ho  composed  of 
the  president  of  the  Seua'.e,  the  Senators,  or  the  major  part 
of  them-,  and  the  judges  of  the  court  of  appeals,  and  the 
maj»r  part  of  them.  On  thr  trial  ot  an  impeach merit  agaiust 
the  Governor,  the  Lieut.  Governor  shall  n'ot  iorm  i  art  ol 
the  court.  No  judicial  officer  shall  exercise  his  office  af- 
ter he  shall  have  been  impeached,  until  his  acquitdl.  Be- 
fore the  trial  of  an  impeachment,  the  members  ot  the  court 
shall  take  an  oa'h  or  affirmation,  truly  and  impartially  to 
try  the  impeachment,  iiccording  to  evidence;  and  no  per 
son  shall  he  convicted,  without  the  concum-ncc  ol "two. 
thirds  of  the  member*  present.  Judgment  in  cases  of  im- 
peachment shall  not  extend  further  than  to  removal  from 
office,  or  disqualification  to  hold  and  ei  joy  any  office  ot 
honor,  trust  or  profh  under  this  state;  but  the  purty  im- 
peached shall  be  liable  to  indictment  and  punishment  ac- 
cording to  l*w. 

Mr.  HUNT'moved  to  amend  the  14th  line  by 
inserting  the  word  "  convicted"  instead  of  the 
word  "  impeached." 

Mr.  TAGGART  said  that  the  section  was  right 
as  it  stood.  The  amendment  would  have  the  ef- 
fect of  causing  the  parties  to  be  twice  tried. 

Mr.  HUNT  withdrew  it. 

The  1st  section  was  then  agreed  to. 

The  2d  section  was  then  read,  as  follows  : 

^  -2.  Th<  re  shall  be  a  court  of  appeals,  composed  of  eight 
judges,  of  whom  four  shall  be  elected  by  the  electors  of 
the  t>tate  for  eight  years,  and  lour  selected  from  the  class 
ol"  Justices  of  the  Supreme  Court  having  the  shortest  time 
to  serve.  Provision  shall  be  made,  bj  law,  for  designat- 
ing one  of  the  number  elected,  as  chief  judge,  and  for  se- 
lecting such  Justices  of  the  Supreme  Court,  from  time  to 
time,  and  lor  so  classifying  those  elected,  that  one  shall 
be  elected  every  second  year. 

Mr.  TILDEN  suggested  that  this  section  should 
be  passed  over  until  the  Convention  has  decided 
on  the,  constitution  or  organization  of  the  supreme 
court.  This  point  should  be  decided  definitely 
before  they  acted  on  the  2d  section. 

Mr.  HART  moved  to  strike  out  all  after  the 
word  judges  in  the  1st  line  and  insert  the  fol- 
lowing : 

"  Elected  by  the  electors  of  the  state,  by  general  ticket; 
and  provision  shall  be  made  by  law  so  to  classify  the  judges 
first  elected  that  one-hall  thereof  shall  hold  their  offices 
four  years,  and  the  other  hall  eight;  and  the  judges  of  the 
said  court  shall  thereafter  he  elected  in  like  manner  a^d 
hold  their  offices  eight  years  " 

Mr.  HART  had  one  or  two  reasons  for  offering 
this  amendment.  He  considered  that  the  court  ot 
last  result  should  represent  the  entire  state,  and 
not  a  meie  section  of  the  state;  and  he  believed 
this  leeiing  was  very  genes al.  Fuither,  it.  would 
•  be  inconvenient  tor  the  judgis  to  go  in  and  out  ol 
this  court  in  every  one  or  iwo  years.  Again,  he 
believed  thai  we  should  need  the  entire  thirty-two 
judges  to  do  t  3s  of  the  stale,  trial  ol 

cau-e-;,  ^  •  &•••  The-e  were  his  reasons,  and  he 
should  rouble  the  house  no  turiher. 

Mi.  MANN  called  tor  the  leading  of  his  amend- 
ment to  tins  section,  presented  yesterd-iy.  It  was 
read,  as 


A  chief  justice  shull   br  i  ie  electors  of  ihis 

stale,  who   shall  hold  his  office  for  four   years,  and  shall 

S  reside  over  the  j'n'ii.-i.iry  of  the  s  ate,  It  shall  be  his 
uty  to  prescribe  forms  and  rules  ol  practice  in  the  su- 
preme and  all  other  subordinate  courts;  and  such  powers, 
forms,  and  rules,  snail  be  simple,  plain,  and  concise — ex- 
pro  s  the  subject  matter,  or  simple  facts  requisite,  and 
nothing  more. 

Mr.  CHATFIELD  opposed  the  amendment  of 
Mr.  MANN.  He  was  in  favor  of  the  amendment 
proposed  by  Mr.  HART,  to  have  eight  judges 
taken  from  the  State  at  large,  and  elected  by  the 
people,  to  form  the  court  of  appeals ;  and  he 
hoped  the  judiciary  committee  would  consent  to 
this  plan.  He  wished  the  judges  either  to  be  all 
taken  from  the  people,  or  else  all  from  the  other 
32  judges.  He  preferred  this  court  of  last  resort 
to  be  taken  entirely  from  the  people.  He  would 
not  have  that  court  sit  in  judgment  on  the  deci- 
sions previously  made  by  its  members  in  other 
courts ;  for  it  was  exceedingly  difficult  for  a  judge 
to  alter  his  opinion  or  reverse  his  deliberate  de- 
cision, made  but  a  short  time  previously.  He  did 
not  like  the  parti-colored  feature  of  the  section 
as  reported  by  the  committee  (judiciary.)  Again, 
he  believed  with  his  friend  from  Oswego,  (Mr. 
HART,)  that  either  at  the  present,  or,  at  any  rate, 
in  a  very  short  time,  we  should  be  in  need  of  the 
whole  thirty-two  judges  to  do  the  other  judicial 
business  of  the  State ;  thirty-two  would  be  none 
too  many.  And  he  should  therefore  vote  for  the 
amendment  of  Mr.  HART. 

Mr.  TALLMADGE  wished  this  2d  section  lo 
be  considered  and  disposed  of  by  itself.  It  is  not 
only  necessary  to  administer  ju-tice  hut  to  satisfy 
the  people  that  it  is  justice.  The  Courts  must  be 
so  oryai.ized,  that  the  people  will  believe  it  to  be 
justice  when  it  is  done.  Many  gentlemen  had 
blamed  the  Court  ot  Errors  because  it  never  pro. 
nounced  a  law  unconstitutional  which  they,  the 
Senators  had  made;  and  }et  we  were  going  to 
uidke  this  Court  of  Appeals  take  one-half  of  its 
judges  from  the  Supreme  Court.  Let  us,  for 
God's  sake  he  consistent.  And  with  tnis  excep- 
tion he  agreed  with  the  committee.  Bui  the 
Court  of  Appeals  ought  to  be  separate  from  any 
legislative  functions  whatever.  Let  them  come 
from  Ihe  State  in  any  manner  you  please,  so  that  it 
is  done  fairly.  But  let  them  not  be  taken  from 
i  he  Court  which  has  already  made  the  decisions 
they  have  got  to  pass  upon  Lit  us  rather  say 
(here  shall  be  no  appeal  from  the  Supreme  Court 
at  all.  They  may  b.?  very  lair  men,  but  still  they 
are  of  Ihe  fraternity  j  they  hcive  been  in  consulta- 
tion before,  and  he  who  is  condemned  by  them  will 
never  believe  he  had  a  fair  trial.  We  should  have 
this  court  of  new  material;  then  the  parly  iried, 
would  see  iie  i.ad  two  trials  and  in  two  new  courts, 
and  he  would  then  believe  he  had  had  justice. — 
We  must  have  this  court  free  from  all  suspicion, 
or  we  must  have  no  such  court  at  all;  it  must  be  free 
from  all  sorts  of  petty  influences,  and  petty  pdicians 
Let  this  court  have  eight  j^cl^.s,  if  \on  please, 
and  let  them  be  elected  for  eight  years.  lie(;VJr.T.) 
would  be  satisfied  enher  to  make  the  judges  by 
appointment  of  the  Governor  and  Senate,  or  have 
them  elected  by  the  people;  but  they  must  be 
lofiv — they  must  be  pure  ;  and  they  must  above 
all  be  beyond  suspicion  ;  or  they  will  do  no  good 
to  society  at.  all.  Tne.iv  will  be  no  econornv  in 
having  a  poor  court.  If  we  have;  a  supreme  court 
of  high  talent  and  integrity  we  shall  have  but  few 


752 


appeals.     The  legislature  may  pass  a  law  to   giv 
thes   eight  judges  of  your  court  ol  appeals  as  a  con 
pensaiion  $3  a  day,  and  that  will  be  but   a   sma 
sum  (e/en  if  they  sit  all  the  year  round)  in  the  ag 
gregate  for  each,  or  for  the  eight ;  only  about  $250 
each  or  $20,000  for  all.     But  they  will  not  be  re 
quired  to  sit  half  the  year   round.     And   thus   b 
adopting  this  plan  you  can  have  a   court   of  si  in 
plicity,  and  a  court  of  elevated  dignity— a  court  a 
unsuspected  purity  ;  and  one  which  will  comman 
the  respect  and  admiration  of  the   world.     Abov 
all,  do  not  let  us  commit  the   ridiculous   error   c 
constituting  a  court  of  last  resort,  with  the  sam 
defects  as  the  present    one;  where  they   sit   anc 
pass  on,  (as  a  court  of  errors)  their  own  decision 
made  when  sitting  as  judges  of  the  supreme  cour 
benches      These  were  his   views;  and    with   tl 
exception  he  had  pointed  out,  he  agreed  with  the 
report  of  the  majority  of  the  judiciary  committee 
Mr.  M  ANN  thought  that   there   was  but    very 
little  difference  in   the  real  meaning  or  the  inten 
tion  of  the  amendment  of  the  gentleman  from  Os 
wego  (Mr.  HART)    and  his  own.       He   was    no 
quite  sure  that    Mr.  HART'S  would   not  effect  th< 
object  desired,  w'hich  -was  to  have  the  whole  cour 
elected  by  the  people,  independently  of  the  othei 
courts,  better  than   that  which  he   had  presented 
Mr.  JORDAN  opposed  the  amendment   of  Mr 
HART,  and  he  wished  to  call  attention  to  a  prin- 
ciple that  he  desired  the  Convention  to  reflect  up 
on,  before  voting  now.       The  judges  ot  the  court 
of  appeals  ought  to  be  practically  acquainted  with 
the  operations  of  the   courts  and  the    wants  of  the 
people.     For  years  we  had  been  complaining  thai 
our  judges    were  excluded  horn  the  circuit,  and 
that  they   have  not  an    opportunity   of  mingling 
with  the    business    affairs    ot    the   people,  to   see 
their  operations  and  their  circumstances  as  they 
exist,    and   w'hich   it  was  important  lor   them  to 
know,  in  order  to  secure  an  enlightened  adminis- 
tration oi  justice  in  the  State.     Now  the  majority 
of  the    judiciary    committee    had   endeavored   tc 
guard   against  the    objection  to  the  court  of  ap- 
peals; but   nevertheless,  several  amendments  had 
been  here  offered  which  would  go  to  establish  such 
a  court,   and  to  seclude  the  judges  from  the  cir- 
cuits and    from  the    law    business  of   the  state — a 
court    entirely    aloof  from  the    administration  of 
justice  in  any  form  except  in  this  court  of  dernier 
resort,  where  they  were  to  be  cloistered  to  decide 
on  abstract   questions.     If  however,  it  weie    ne- 
cessary that  these  judges  should  be  acquainted  with 
the  practical  operation  of  the   affairs  of  the  State, 
then  the  system  ol  the  majority  of  the  committee 
was  the  best;  for  they  proposed  to  elect  four  judg 
es  for  the  court  of  appeals.      They  had  a  class  of 
eight  judges  ot    the  supreme  court,  out  of  which 
tour    were  to  be    selected  to  be  members  of  the 
court  of  appeals,  as  he  observed  the  other  day,tak- 
ing  their  terms  in  rotation  in  holding  the  terms  ot 
the  court.     There  were  to  be  eight  of  them,  hut 
four  only  were   to  sit  at  the   same   time,  and  tbey 
were  to  serve  for  the  two  last  years  of  their  term 
as  judges,  one  half  at  one  term  and  the  other  half 
at  the  next;  and  thos<>  not  on  duty  there,  could  be 
performing  duty  on  circuit  or    in  bane,  the  same 
asthe  other  class  of  judges     Herethen  they  would 
have  four  judges  who  had  been  six  years  on  circuit 
and  engaged    in    bane  duty  throughout   the  state; 
and  four  j'udgea  to  be  elected.    But  the  plan  which 


had  been  suggested  this  morning  steered    cleai  of 

this,  and  he  desired  to  call  attention  to  this  prin. 
ciple,  that  they  deliberate  and  pronounce  their 

be^t  judgment  upon  it,  and  that  was  all  he  desired. 
In  regard  to  the  objection  which  had  been  staled 
against  the  court  of  appeals,  that  no  judge  who 
decides  cases  at  nisi  prius,  oi  in  bane,  should  be 
a  member  of  the  couri  ot  appeals,  when  the  cases 
decided  by  them  came  in  review,  he  observed  that 
it  was  not  necessary  that  it  should  be  so.  He  pre- 
sumed that  in  reducing  this  system  to  practice,  it 
never  could  be  so.  But  if  it  were  necessary  to 
guard  against  it  in  the  Constitution,  it  would  be 
easy  to  bring  in  an  amendment  to  prohibit  the 
judge  from  pronouncing  an  opinion  in  court,  who 
had  sat  at  the  trial  below.  There  would  be  no 
difficulty  about  that.  Was  it  then  desirable  to 
make  the  court  of  appeals  a  secluded  court,  and 
to  keep  the  judges  from  practical  experience  on 
circuits?  That  question  being  decided,  he  should 
be  prepared  to  act  on  the  proposition. 

Mr.  HARRIS  was  in  favor  of  the  proposition  as 
it  stood.  He  did  not  think  there  was  danger  in 
making  this  court  of  appeals  to  consist  of  four  or 
eight  of  the  judges  of  the  supreme  court,  having 
had  four  years  experience.  He  was  in  favor  of  this. 
And  this  mode  would  tend  to  preserve  uniformity 
of  decisions.  Each  portion  of  the  state  would 
also  thus  have  its  fair  representation  under  this  sys- 
tem. This  would  be  a  very  great  benefit.  He 
was  willing  to  increase  the  number  of  districts  to 
:en,  with  four  judges  in  each,  making  forty  judges 
is  proposed  by  the  gentleman  from  Oswego  (Mr. 
iART.)  It  would  but  rarely  happen  that  any 
one  of  the  eight  judges  in  the  court  of  appeals 
Yould  be  called  upon  to  pronounce  upon  any  of 
;heir  own  decisions  in  the  court  below ;  and  if  he 
vas,  it  would  only  be  when  he  first  took  his  seat 
n  the  court  of  appeals,  and  even  then  there 
fl-ould  be  seven  other  judges  who  had  had  no- 
hing  to  do  with  the  previous  decision.  He  would 
lave  it  so  that  each  judicial  district  should  have 
me  judge  in  the  court  of  appeals.  And  he  would 
Iso  have  a  chief  justice,  whose  duty  it  should  be 
nade  to  reform  the  practice  of  the  courts,  and 
•vho  shpuld  report  annually  to  the  legislature  and 
lo  such  other  duties  as  the  legislature  might 
hink  proper  to  impose  upon  him.  But  he  would 
n'ovide  for  his  election  in  a  separate  section. 

Mr.  NICOLL  concurred  entirely  in  the  re- 
narks  made  by  Messrs.  JORDAN  and  HARRIS  that 
ve  should  carry  the  highest  learning  and  integrity 
nto  the  great  state  court.  When  the  time  came, 
lowever,  he  should  offer  an  amendment  in  effect 
rflit  no  judge  in  the  court  of  appeals  should  be  al- 
owed  to  vote  on  any  question  which  he  had  de- 
ided  upon  in  the  court  below. 

Mr.  SHEP  ARD  wished  the  question  to  be  taken 
eparately  as  to  the  simplifying  the  pleadings 
nd  practice  Let  this  be  taken  separately  from  the 
ther  part  of  his  colleague's  (Mr.  MANN'S)  amend- 
ment. He  called  for  this  division  of  the  question, 
nasmuch  as  there  was  no  necessary  connection 
etween  the  two  parts  of  the  amendment. 

Mr.  MANN  assented  to  this  suggestion. 

Mr.  LOOMIS  was  in  lavoi  ot  having  as  small  a 
umber  ot  judges  as  could  properly  do  the  work. 
[e  was  in  favor  of  paying  them  propeily,  but  if 
lere  were  too  many,  the  Legislature  would  not 
o  so.  Again,  he  thought  it  desirable  to  mingle 


753 


the  tribunals  as  much  as  possible;  as  had  been  done 
in  the  Court  of  Errors  at  present,  where  the  Chan, 
cellor  and  judges  of  the  Supreme  Couit  had  seats. 
The  irgument  of  that  gentleman  (Mr.  TALL- 
MADGE,)  was  the  objection  there  would  be  to 
having  these  eight  judges  pass  on  their  own  decis* 
ions,  made  in  the  courts  of  below. 

Mr.  TALLMADGE:  No,  sir — no,  sir. 

Mr.  LOOM  IS:  I  so  understood  him. 

Mr.  TALLMADGE  explained  that  he  did  not 
mean  that. 

Mr.  VAN  SO HOONHOVEN  differed  from  the 
gentleman  from  Albany,  (Mr.  HARRIS,)  in  rela 
tion  to  the  election  of  judges  for  this  court,  be- 
cause to  take  its  members  fiom  the  judges  of  the 
Supreme  court  was  to  confine  the  people  in  their 
selection  to  a  class  of  men  who  might  not  be  the 
best  men.  He  though*-  there  were  many  gentle- 
men practicing  ow  the  circuits  who  were  as  well 
qualified  to  constitute  the  court  of  appeals  as  the 
judsjes.  But  again,  he  saw  no  necessity  of  limit- 
ing the  choice  to  gentlemen  of  the  legal  profes- 
sion. The  objection  that  there  would  be  a  pride 
of  opinion  in  the  judges,  who  would  seek  totob- 
tain  the  affirmance  of  a  decision  or  a  principle 
advocated  on  circuit,  he  thought  was  a  weighty 
objection  to  the  selection  of  judges.  He  hoped 
to  see  the  court  of  appeals  made  independent  of 
every  other  court,  so  that  there  should  be  no  sym 
pathy  or  fraternal  feeling  between  them.  He  de- 
sired the  matter  to  be  lelt  in  the  hands  of  the  peo- 
ple to  select  where  they  pleased. 

Mr.  MANN  then  withdrew  the  first  part  of  his 
amendment,  in  order  that  he  might  have  the  ques- 
tion taken  on  the  latter  part. 

Mr.  WHITE  wished  at  this  time  to  call  the  at 
tention  ot  the  convention  to  an  amendment  which 
he  proposed  to  add   to  Mr.  HART'S  amendment 
at  the  proper  time,  he  would  add  to  it  as  follows 

"  At  the  first  election  in  pursuance  of  this  section,  no 
elector  shall  vote  for  more  than  five  person^;  and  at  every 
ensuing  election  under  this  section,  no  elector  shall  vote 
for  more  than  three  persons." 

Mr.  O'CONOR  regarded  the  constitution  of  the 
court  of  appeals  as  a  matter  of  the  first  impor- 
tance. It  was  to  be  the  head  of  our  judicial  sys- 
tem— and  indeed  the  only  state  court  in  the  sys- 
tem. Its  decisions  will  go  forth  to  the  world  as 
embodying  the  combined  learning  and  wisdom  o 
the  judicial  state  ;  and  in  its  firmness  and  justice 
will  rest  the  last  hope  of  the  citizen,  when  hi: 
dearest  interests  are  brought  into  legal  jeopardy 
Private  safety,  ;tnd  national  honor,  are  there  to  be 
vindicated  and  maintained,  and  consequently  \v< 
cannot  be  too  circumspect  in  laying  the  founda 
tions  of  this  court.  The  existing  court  of  last  re 
sort  is  to  be  dispensed  with  ;  but  he  would  reminc 
the  convention  that  that  court  had  many  and  higl 
claims  to  the  respect  and  veneration  of  the  peo 
pie.  From  his  early  years  he  had  been  taught  b) 
the  opinion  of  our  ablest  jurists,  many  of  whom 
were  now  no  more,  to  entertain  a  high  regard  fo 
that  court.  He  believed  that  its  judgments  as 
whole,  would  bear  a  favorable  comparison  wit! 
those  of  any  other  court  in  this  country.  Th 
theoretical  defect  that  it  was  a  part  of  the  legis 
lative  department,  and  the  practical  defect  that  ' 
was  too  numerous,  ought  both  to  be  avoided 
the  construction  of  a  new  tribunal;  but  its  be 
nign  features  ought  to  be  preserved.  Standing  a 


head  of  the  judicial  power,  the  new  court  of 
ppeals  should  be  completely  above  the  control 
ad  influence  of  the  subordinate  branches  of  that 
ower,  otherwise  it  could  not  possess  the  inde- 
endence  absolutely  necessary  to  a  vigorous  exer- 
ise  of  its  paramount  authority.  In  a  court  of  ap- 
eals  a  tie  vote  produces  an  affirmance,  yet  the 
Ian  of  the  majority — forms  one  half  of  this  court 
rom  the  judges  of  the  court  below.  Although 
bese  judges  should  not  have  participated  in  the 
udgment  to  be  reviewed ;  still,  from  causes  not 
o  be  controlled,  they  will  feel  a  strong  tendency 
o  affirm  their  greater  intimacy  with  the  practice, 
nd  their  official  connection  with  the  ordinary  ad- 
ministration of  the  law,  will  be  apt  to  give  them 
n  undue  influence  over  the  other  members — and 
f  this  design  should  be  adhered  to,  he  (Mr.  O'C.) 
;reatly  apprehended  that  causes  appealed  to  the 
ourt  of  last  resort  would  no  longer  enjoy  the  great 
dvantage  of  being  transferred  to  a  new,  pure 
.nd  elevated  judicial  atmosphere,  where  new 
iews  and  new  arguments  may  be  urged  with  con- 
fidence— with  the  hope  of  being  heard  without 
mpatience,  and  weighed  without  prejudice.  He 
nought  a  small  number,  say  one  or  two  justices 
>f  the  supreme' court,  in  conjunction  with  sixteen 
udges  of  appeals,  to  he  elected  in  districts  com- 
)osed  of  two  adjoining  senate  districts,  would 
~orm  a  court  combining  all  the  benefits  of  our  pre- 
sent court  of  errors. 

This  arrangement,  whilst  it  secured,  as  in  the 
jresent  court,  at  least,  one  member  having  a  prac- 
ical  intimacy  with  the  course  of  the  lower  court, 
:o  aid  in  dealing  with  mere  matters  of  form, 
would  avoid  an  undue  preponderance  of  judicial 
nfluence  in  favor  of  the  decisions  of  the  court 
jelow.  He  saw  no  objection  to  the  term  of  the 
udges  in  this  court  being  made  as  short  as  any 
member  could  desire.  Four  to  eight  years  would 
suffice.  The  election  in  districts  was  also  unob- 
^ectionable  ;  because  the  judges  from  all  the 
several  districts  meeting  together,  and  acting  to- 
gether in  one  forum,  it  could  not  be  said  that  one 
portion  of  the  state  gave  law  to  the  other.  When 
all  its  members  were  assembled,  it  would  derive 
its  authority  from  the  united  powqf  and  authority 
of  the  whole  people.  He  conceived  that  it  was 
desirable  to  have  a  considerable  number  of  mem- 
bers in  this  court,  and  that  they  should  be  elected 
in  districts.  Unless  a  considerable  number  of 
members  was  provided  for,  none  but  members  of 
the  profession  could  ever  be  elected  to  this  court. 
If  to  four  law  judges,  taken  from  the  supreme 
court,  we  are  to  add  only  four  more  as  a  court  of 
appeals,  it  would  be  altogether  unsafe  to  permit 
any  of  this  small  numb -r  of  independent  appel- 
late j  dges  to  be  other  than  persons  deeply  versed 
in  the  law,  by  study  and  experience.  He  was 
therefore,  in  favor  of  a  larger  number.  He  would 
go  for  the  arrangement  of  the  gentleman  from 
Oswegu  (Mr.  HART,)  and  have  eight,if  he  could 
get  no  more  ;  but  he  was  in  favor  ot  a  still  gi  eater 
number.  He  had  always  deemed  it  to  be  an  ad- 
mirable feature  in  our  present  court,  that  it  usual- 
ly combined  a  very  high  grade  of  professional 
learning,  with  a  large  proportion  of  sound  prac- 
tical good  sense,  unlettered  by  the  restraints  of 


69 


754 


By  this  union  at  the  terminus  of  the  legal  admin- 
istration, of  those  two  elements  of  judgment,  the 
learning  of  the  court,  and  the  less  artificial  good 
sense  of  the  jury,  it  was  thought,  a  happy  result 
was  attained.  The  common  sense  of  the  nation 
had  its  full  representation  in  the  judgment  of  its 
court,  and  that  common  sense  had  always,  hither- 
to been,  and  always  would  be  too  sound  and  practi- 
cal, to  extend  its  power  further  that;  to  moderate 
the  rigor  and  undue  strictness  with  which  profess 
ional  men  are  prone  to  apply  their  peculiar  rules 
Mr.  O'C,  quoted  the  words  of  Mr.  Senator  J.  C 
Spencer,  in  8  Cowen's  reports,  733. 

Such  a  court  we  have  always  had, — he  hoped 
yet  to  see  it  retained  ;  it  would  be  the  best  safe- 
guard for  private  right,  for  public  liberty,  for  the 
legal  reputation  of  the  state — most  adapted  to 
carrying  onward  in  safety  the  progressive  devel- 
opment of  our  social  and  political  systems,  and 
of  preserving  the  esteem,  and  affection  of  our 
citizens  for  their  tribunals  of  justice.  Even  if 
this  court  were  composed  of  a  large  number,  he 
believed  that  lawyers  would  most  frequently  be 
chosen,  but  it  would  not  be  so  invariably.  He 
could  point  to  a  probable  exception  in  one  distin- 
guished individual— the  oldest  member  of  this 
Convention — the  pride  of  its  most  numerous  del- 
egation, (Mr.  ALLEN.)  A  gentleman  whose 
opinions  given  as  a  senator  in  the  court  of  errors, 
furnisheS  full  proof  of  his  capacity.  He  believed 
if  an  election  for  members  of  such  a  court  as  he 
(Mr.  O'C.)  suggested  were  to  take  place  in  New- 
York  to-morrow,  that  gentleman  would  be  the 
choice  of  very  many,  and  very  prob; 
sen  of  a  majority.  Mr.  O'C.  offered  many  illus- 


the  cho- 
my  illus- 
trations of  the  soundness  of  judgment  which  had 
marked  the  decisions  of  the  court  of  errors  in  re- 
versing judgments  of  the  courts  below,  given  on 
technical  grounds.  As  to  the  mode  of  election, 
he  had  already  answered  the  objection  that  if 
elected  in  districts  the  members  would  not  repre- 
sent the  whole  state.  Aside  from  this  objection, 
he  thought  election  by  districts  had  many  advan- 
tages over  election  by  general  ticket.  In  the  lat- 
ter method,  a  central  state  caucus  would  control 
the  whole  power  of  appointment;  the  people 
could  not  became  acquainted  with  all  the  candi- 
dates, and  if  those  of  one  district  should  vote 
against  their  neighbor,  whom  they  knew  to  be 
unworthy,  the  party  nomination  would  still  se- 
cure his  election  by  votes  given  in  other  districts 
where  his  demerits  were  not  known.  This  evil 
would  be  guarded  against  by  an  election  in  dis- 
tricts :  and  the  minority  in  this  case  could  by  its 
local  majority  in  particular  districts  exercise  some 
patronage  and  so  far  influence  the  administration 
of  the  law  as  to  protect  its  rights.  The  amend- 
ment preferring  a  general  ticket  system,  but  res- 
training the  elector  to  a  vote  for  two-thirds  of  the 
judges,  he  deemed  very  objectionable.  In  the 
case  of  inspectors  of  elections  that  method  had 
worked  well,  because  the  office  was  not  desirable 
to  the  individual.  It  was  only  important  to  the 
party,  and  consequently  there  was  no  individual 
struggle  for  pre  edence.  But  it  would  not  operate 
well  in  reference  to  high  offices,  high  enough  to 


tempt  the  candidate.  If  eight  judges  were  to  be 
elected,  and  five  only  could  be  placed  upon  a 
ticket,  three  of  each  party-ticket  would  generally 
be  sure  of  an  election.  A  nomination  would  be 


an  election  to  that  extent.  The  friends  of  a  par- 
ticular individual  might  be,  and  would  often  be, 
tempted  to  erase  two  names  and  even  more  from 
his  ticket,  and  many  other  like  practices  calcula- 
ted to  bring  election  into  odium  and  contempt, 
would  necessarily  result  from  such  a  system. 

He  hoped  the  proposed  court,  composed  of  four 
judges  of  the  court  below,  some  of  whom  niay  have 
participated  in  the  decision  under  review,  would 
find  no  favor.  An  appeal  to  the  judge  who  has  hi- 
ready  heard  the  case  and  committed  himselt  by  a 
published  opinion  upon  it,  \\bs  illusory.  An  a;.- 
peal  to  a  couit  ot  moderate  numbers,  in  which  the 
judge  appealed  from  had  a  seal,  was  nearly  so. 
The  statistics  ol  legal  decision  in  the  House  of 
Lords,  would  prove  this.  It  is  well  known  thai  no 
members  of  that  body  vote  on  appeals  or  writs  of 
error,  except  those  who  have  held  high  judicial 
offices.  In  she  late  O'Connell  case,  Lord  Chancel- 
lor Lyndhur-t,  ex  Chancellors  Cutienham,  Catiip- 
b  11  and  Brougham,  and  Loid  Ch^ef  Justice  Deri- 
man,  of  ihe  King's  bench,  alone  voted.  An  <-i- 
tempi  by  some  lay-lords  to  depart  Irorn  the  usage, 
wa$  discountenanced  and  defeated.  The  Li-id 
Chancellor  piesides,  and  the  last  half  century  ex- 
hibits tew  instance*  of  ihe  reveisal  of  a  d  cree  in 
chancery;  whilst  many'  judgmenis  of  other  couns 
have  been  overtuined.  This  shows  that  if  a  pre- 
ponderating influence  in  the  court  of  appeal  be  al- 
lowed to  the  judges  of  the  court  below,  the  right 
of  appeal  becomes  a  mockery.  He  ue*ired  to  see 
a  court  ot  last  report  free  from  the  control  or  ir-flu. 
ence  of  the  inferior  tribunal,  where  ihe  best  minds 
selected  from  every  part  of  the  slate,  would  unite 
in  forming  the  legal  judgment  of  the  s  ate  We 
had  long  lived  in  safety  under  the  guaidianship  of 
such  a  court;  and  he  hoped  such  a  couit  would  be 
retained  in  the  new  system  now  to  be  adopted. 

Mr.  BASCOM  said  the  question  of  how  the 
udges  of  the  court  of  last  resort  shall  be  elected, 
was  one  of  great  importance.  The  proposuion  <  i 
he  gentleman  ftom  Oiwego(Mr.  HART,)  in  effect 
was  that  the  party  that  happens  lo  be  in  the  As- 
cendant when  the  first  election  lakes  place,  shall 
secure  the  whole  bench,  and  go  far  to  secure  a 
areponderatice  in  perpetuity,  whatever  partv 
changes  may  afterwards  take  place.  Would  gen- 
tleman for  a  moment  think  ot  the  prize  ofivrtd  to 
stimulate  the  activity  of  parties  ?  Four  judges  to 
lold  eight  years,  eight  to  hold  for  tour  yeai.s — in 
he  aggregate  forty.eight  year- of  official  term,  to 
be  secured  by  one  or  the  o'her  of  the  contending 
parties  by  a  single  contest !  We  elected  a  Govc  r- 
u>r  and  Lieut.  Governor  tor  two  years  each,  and 
uch  contests  have  produced  activity  and  bitter, 
less  enough  in  party  contests,  but  by  this  propo. 
ition,  we  offer  forty-eight  years  of  official  term,  and 
f  the  salary  is  to  be  $2,500 — $116,000  of  salary,  to 
timulate  an  unhealthy,  unsafe  activity,  iu  our 
great  political  parties. 

The  proposition  of  the  committee  to  elect  a  part 
of  the  judges  ol  this  couit,  and  to  lake  a  pait  from 
the  supreme  court,  was  li.-ible  to  the  same  objec. 
(ion.  He  h<  pt-d  that  neither  proposition  would 
he  adopted,  but  that  vv<;  should  consider  which  of 
the  two  other  propositions  before  tue  house  was 
the  safest  ar.d  best.  The  one  was  the  proposition 
of  the  gentleman  from  New  Yoik  (Mr.  O'CoivoR) 
lo  elect  the  judges  of  this  couit  in  the  several  ju- 
dicial districts,  so  that  each  would  be  repiesented 


755 


in  tnai  inbuual.  And  the  other  was  the  proposi- 
tion in  the  report  he  (Mr.  B)  had  submitted,  that 
the  jiKigc-s  ot  i he  supieuie  court  should  sit  the  last 
year  ot  tia  ir  term  in  the  court  of  last  resort.  He 
hoped  that  one  or  the  other  of  these  propositions 
would  be  adopted;  and  although  he  had  a  pref 
erenee  for  his  own,  he  would  not  deny  that  there 
were  strong  reasons  in  favor  ot  the  proposition  of 
the  gentleman  from  New  York.  It  would  permit 
other  than  lawyers,  and  the  law-bred  judges,  to  sit 


I  here 
have 


in  that  court.     The  nine    had    been  when 
was  an    almost   indispensable    necessity    to 
judges  in  (hat  court,  who  were  not  so  much  bound 
by  technical  lules,  or  influenced  by  precedents  as 
mere  lawyers  would  be. 

Mr.  MCHOLAS  said  in  settling  this  question, 
we  snould  avoid  extremes.  He  desired  to  retain 
lor  the  court  of  appeals  to  some  extent  its  pres- 
tnt  practical  character  and  influence.  He  would 
give  it  what  has  been  called  in  inlusion  ot  a  pop- 
ular spirit,  by  continuing  it  somewhat  larger  in 
numbers  than  the  other  courts,  and  let  alargepio 


portio 


of  its  members  be  elected  by  the  people,  as 


ion  in  relation  to  it  reported  by  the  commute*. 

Mr.  HOFFMAN  said,  that  having  a  tew  days 
since  stated    very  generally  his  views  in  icUtion 
o  the  general  system,  he   should  confine   his  at- 
ention,  as  neaily  as   he  was  able,  to  the  precise 
motion    before  the   house.     What   should  a  court 
of    errors   be?      Having   examined    its   essential 
characteristics,  how  does  the  projet  of  the  slang- 
ing committee  compare  with  the  various  imposi- 
tions to  amend  it  ?     In  the  early  stages  of  civiliza- 
tion, when   legislation  was   weak,  inexperienced, 
and  feeble,  he  admitted  that   a  large  share  of  the 
law  must  be  made  by  the  judge  ;  but  in  any  decent 
civilization,  after  man    had  made   progress  in  the 
arts  and  in  letters,  legislation  is  to  speak  the  law, 
find  it,  and  declare  it  ;   and  it  is  the  business  of  a 
judiciary  to  find  how  the    law  was  setiled  at  the 
time  the  act  in  review  took    place.     They  aie  not  * 
to  make   any  new  law,  and   where   they  do  it,  it 
only  proves,  either  that  they  go  beyond  their  duty, 
or  that  society  has  been  remiss  in  finding  and  es- 
tablishing the  rule  that  should  be  pursued.     The 
advances  in  civilization  during  the  last  two  hund- 
red years,  has,  to  a  considerable   extent,  removed 
the  necessity  for  judicial  legislation;  ai.d  any  just 
enlightened  reform  of  the  law,  would  be  as  to  the 
condition  in  which  we  may  say  to  the  judge — You 
shall  not    make  the   law — you  must  find   the  rule 
which  society   has   established,  and   apply  it. — 
We   have    not   entirely   reached    that    condition 
as   yet,   but  we  are  fast  approaching   to  it.     It   is 
proposed  here  (said  Mr.  H.)  that  what  is  calitd  a 
popular  element,  should  be  infused  in  the  judicial 
system.     It  was  somewhat  difficult  to  understand 
what  was  meant  by  that  term,  but  if  H  was,  as  he 
supposed,  it  was  that  there  shall  be  a  representa- 
tion in  the  courts.     He  denied  it.     Representation 
was  right  and  proper  in  making  the  rule  of  law,  but 
representation  was   not  necessaiy  in   any  sense  in 
finding  it.  That  was  the  solemn  duty  of  the  judge 
and  the  court.     He  therefore  disapproved  entire- 
ly the   notion  that  the  judge  should   represent  a 
locality,  bring  to  the  bench    his  local  feelings  in 
any  way.     In  this  court  of  last  resort  he  was   the 
judge  of  the  State,  bringing  there  the  settled  rules 
which  the  State  has  fixed,  and  should  stand  there, 
and   should  sit  there,  uninfluenced  and    unshaken 
by  anything  that  is  local.     Wherever  this  has  been 
the  case,  a  judicial  system  has  pretty  well  succeed- 
ed and  been  a  benefit  to  society,  and    where   local 
feelings  had  been  sufiered  to  interfeie,  it  had  prov- 
ed a  failure.     Mr.  H.  referred  to  the  Couit  of  Ap- 
peals of  Great  Britain,  as  an  example  of  this,  and 
also   to  the  Supreme   Court  of  tSie  United   States. 
He  preferred  a  few   able,  thinking,  acting  men  for 

e§  of  four  able  and  experienced  men  to  counter-  a  Court  of  Errors,  men  who  heard  all  the  aigu. 
act  the  effects  of  the  deficiencies  of  those  elected  |  ments,  and  were  present  during  the  whole  trial. 
AH  to  electing  these  judges  by  general  ticket,  he  yney  WOU1<J  not  read,  write,  whisper  or  walk 
should  prefer  the  district  system  proposed  by  the 
report,  because  the  judiciary  will,  in  his  opinion, 
be  much  less  exposed  to  undue  political  or  party 
influences,  than  it  would  be  should  the  election 
be  by  a  general  ticket.  He  should  vote  against 
the  amendment,  and  hoped  the  provision  with 
such  a  restriction  as  he  suggested,  might  be  adopt- 
ed. 


in  tiie  case  at  present  with  our  court  of  last  resort; 
and  give  the  people  an  opportunity, as  now,  to  se- 
lect their  judges  by  districts,  men  they  kaow  per- 
sonally. And  this  view  oi  the  subject  accords, 
he  believed,  with  the  opinions  of  every  gentleman 
who  has  expressed  a  wish  tp  exclude  the  supreme 
court  judges  from  this  court  of  appeals.  In  giv. 
niii  to  the  court  this  important  practical  element 
redesigned  to  prevent  the  court  being  extremely 
technical.  He  could  not  think  it  wise  to  deprive 
the  court  of  the  beneficial  influence  of  great  lega" 
learning  at.  i  judicial  experience,  tor  which  the 
report  made  by  the  chairman  provides,  by  requir- 
ing four  1 1  the  members  of  this  court  to  be  select, 
ed'iioir  the  oldest  judges  of  the  supreme  court.— 
These  four  judges  would  certainly  be  valuable 
inembeis  (  f  the  court  of  appeals,  and  the  only  ob- 
jection he  had  heard  to  the  court  being  I  bus  con- 
stituted, arose  from  an  apprehension  that  they 


may  act  upon   appeals  from 
when  made  in  the  supreme 


their 
;ourt 


own  decisions 
He  would  ob- 


viate this  objection  by  an  amendment  to  the  re- 
port, requiring  that  no  judge  of  this  court,  who 
participated  as  a  judge  of  the  supreme  court  in  a 
trial  of  a  cause  appealed  from  or  brought  to  this 
court  by  a  writ  of  e'rroi,  shall  have  a  voice  on  its 
final  adjudication-  It  had  been  urged  here  to-day 
that  thtjse  old>-st  judges  might  be  the  least  com- 
petent members  of  the  supreme  couit,  and  so  they 
might  oe  the  most  able  men  in  that  court,  and, 
should  these  judges  elected  prove  to  be  inferior 
men,  then  you  aie  fortunate  in  having  the  servic- 


•Mr.  WATERBURY  considered  the  court  of 
errors  as  the  most  important  tribunal,  and  hoped 
that  it  would  be  constituted  with  that  view.  He 
w»9  in  doubt  as  to  the  propriety  of  the  proposi- 


about  when  the  trial  was  going  on.  They  would 
sit  in  judgment  and  judge.  AJr.  H.  expressed  his 
preference  for  the  report  of  the  committee,  be- 
cause although  not  unobjectionable,  it  was  the  best 
submitted,  and  there  must  be  some  compromise 
of  feeling  He  would  not  in  any  manner  make  a 
Court  of  Errors  of  district  judges — they  must  re 


present  the  State.     He  repelled   and 
distinctly  all    idea   of  making     state 


repudiated 
judges    by 


the  district  system.  They  sink,  in  his  mind, 
and  they  would  in  tue  public  mind,  to  mere  dis- 
trict judges'.  This  objection  lay  in  all  its  force  to 


756 


the  other  plans,  and  untortuoately  against  hall  of 
the  court  proposed  in  the  plan  ot  the  committee. 
Mr.  H.expiessed  himself  at  a  loss  to  know  how 
to  employ  the  tour  State  judges  of  the  Court  of 
Appeal^,  during  all  the  time,  tor  he  did  not  be- 
lieve, he  trusted  they  would  not,  find  employment 
in  the  Court  of  Appeals  more  than  one-fourth  of 
the  yesr.  In  conclusion,  Mr.  H.  said  that  much 
as  he  found  to  object  to  in  the  plan  of  the  Com- 
mittee, yet  as  some  plan  must  be  agreed  upon, 
and  as  the  leport  of  the  Committee  presented  the 
Jeast  objection,  he  should  vote  for  that. 

Mr.  TALLMADGE  thought  the  great  question 
to  be  considered  was,  whether  there  should  be  a 
court  of  appeals,  and  ultimate  jurisdiction  or  not. 
It  was  in  that  point  of  view  that  he  wished  to 
discuss  it.  Mr.  T.  coincided  with  the  remarks  of 
Mr.  HOFFMAN,  as  to  the  importance  and  necessi- 
ty of  guarding  as  far  as  was  practicable  the  judi- 
ciary from  exercising  the  right  of  legislation  in 
the  law  making  power.  Mr.  T.  urged  the  neces- 
sity of  the  boundary  of  legislative  and  judicial 
power  being  distinctly  marked,  and  each  being 
confined  to  its  own  jurisdiction.  In  the  condi- 
tion of  the  legislature  declaring  the  law  in  one 
way,  however,  and  the  judiciary  another,  he 
urged  the  necessity  of  a  third  tribunal  was  appa- 
rent. Neither  would  bow  to  the  other,  and  a  third 
power  independent  of  them  all,  was  requisite  to 
decide  between  them.  Why  was  it  that  juries, 


elector  shall  vote  iormore  than  live  persons;  and  at  every 
ensuing  election  under  this  section,  no  elector  bhail  vo'e 
lor  more  thau  three  persons." 

Mr.  WARD  asked  for  a  division  ot  the  question, 
so  as  to  test  the  sense  of  (he  Convention  directly 
on  the  question  of  electing  these  judges  by  .gen- 
eral ticket. 

Mr.  MORRIS  said  thar  some  days  since,  he  had 
expressed  the  opinion  it  would  be  better  to  elect 
the  supreme  court  judges  by  genetal  ticket.  His 
reason  for  it  was,  mat  he  found  lhat  the  judge 
elected  in  a  district  might  be  unconsionsly  per- 
haps, stayed  by  ihe  loc;l  feelings  under  winch 


he  was  elected,  and  have  his 
and  otherwise,  towards  thos 


rejudices,  political 
in  his   district    who 


might  have  laktn  an  active  part  for  or  aguinst  him 
in  the  canvass  And  he  vvas  oppose.!  to  it,  tor  the 
very  reason  lhat  he  was  now  opposed  to  electing 
the  court  of  last  resort  by  general  ticket.  'J  he  re- 
sult would  be  thai  all  of  them  would  be  of  the 
same  political  cast  or  cornplfxion — and  the  elec- 
tors would  have  to  vote  tor  men  ol  whom  they 
knew  little,  if  any  thing,  and  would  have  to  take 
them  on  a  parly  nomination.  He  could  see  no 
danger  in  eleciing  them  by  drsfi  ids — loi  if  a  judge 
wns  elected  by  any  particular  excitement  in  a  dis- 
trict, however  much  he  might  partake  of  that 
excitement,  he  could  scarcely  cairy  with  him  alt 
the  rest,  or  perhaps  auy  of  them.  A  judge,  how- 
ever, silting  at  nisi  prius  would  be  there  alone, 


through  hundreds  of  years,have  always  been  pure?  and  his  opinion  and  teehngs  would  control  the 
It  was,  because  a  court  sits  above  them,  and 
they  dare  not  be  dishonest.  And  yet  there  might 
often  be  found  in  those  juries  the  rogue  in  the 
streets,  the  villain  from  the  county  jail,  and  the 
marauder  at  midnight.  Neither  would  the  legis- 
lature from  corrupt  or  party  feelings  pass  a  wrong 
law,  or  the  judiciary  from  similar  feelings  give  a 
wrong  decision.  He  urged  if  there  was  a  court 
of  appeals,  it  should  be  with  the  power  of  nega- 
tion, and  not  of  condemnation.  He  would  have  for 
such  a  tribunal  one  that  was  independent  and 
above  the  legislature  and  judiciary,  and  a  legisla- 
ture and  a  judiciary  independent  of  each  other. 
He  would  not  have  the  judges  in  the  court  of  ap- 
peals sit  at  the  circuit.  He  would  have  him 
chosen  for  the  express  purpose  of  sitting  in  that 
court.  He  would  elect  one  every  year.  J  t  would 
be  eight  years  in  changing  its  character,  and  thus 
it  would  be  preserved  from  the  bias  of  mere  tein- 
pory  excitement  of  public  feeling.  It  would  al- 
so secure  stability  in  justice  and  indecisions,  now 
ao  much  to  be  desired.  He  would  have  the  court 
of  appeals  with  no  possible  power  to  pronounce 
original  decisions,  for  rather  he  would  have  none 
at  all.  He  would  even  be  glad  to  make  them  in- 
eligible to  office  afterwards,  the  more  effectually 
to  guard  against  the  possibility  of  bargain  and 
corruption.  With  such  a  court  we  should  never 
have  seen  that  conflict  of  decision  between  the 
Supreme  Court  and  the  Court  of  Errors,  as  was 
presented  in  the  case  of  the  General  Banking 


Law. 

The  question  was  then  taken 
amendment,  to  that  of  Mr.  HUNI 


on    Mr.  MANN'S 
-the  longer  pro- 


thu- election  of  a  chief  justice  of  the  court 


of  appeals,  and  il  was  lost. 

Mr.  WHITE  then  moved  his  amendment,  as 
lows  : 


fol- 


At the  first  election  in  pursuance  of  this  section,   no 


cause.  He  felt  compelled  therefore  to  vote  against 
the  proposition  10  elect  all  these  judges  by  gen- 
eral ticket. 

Mr.  HARRIS  proposed  to  amend  so  us  to  pro- 
vide that  the  court  of  appeals  should  be 
entirely  of  the  class  of  justices  of  the  supreme 
court  baring  the  shortes;  tune  lo  serve. 

Messrs.  JORDAN  and  STOW  further  brufly 
debated  the  question,  when 

On  motion  ot  Mr.  CHATFIELD  the  Convec- 
tion took  a  recess!. 

AFTERNOON    SESSION. 

The  Convention  met  at  half  past  3  P.  M.  After 
calling  the  loll,  and  waiting  until  a  quorum  wa* 
present,  the  committee  resumed  the  consideration 
of  the 

JUDICIARY  REPORT. 

The  amendment  previously  offered  by  Mr.  HAR- 
RIS now  came  up  for  consideration. 

Mr.  CHATFIELD  spoke  at  length  in  /aver  cf 
the  principle  of  electing  all  these  judges  of  the 
court  of  appeals  by  general  ticket.  He  would  be 
willing  to  increase  the  number  of  this  court  to 
twelve.  Bui  he  thought  the  (bice  here  recom- 
mended, was  as  large  (with  the  addition  lhat 
would  be  made  to  it  by  tins  amendment,)  as  the 
people  would  justify.  And  one  reason  why  he 
favored  this  amendment  was,  lhat  it  would  in- 
crease the  judicial  force — adding  force  to  the 
court  of  appeals,  and  leaving  the  32  supreme  court 
judges.  As  to  the  mode  ot  selection,  he  preferred 
the  general  ticket  system,  and  he  was  surprised  to 
see  the  gentleman  irom  New  Yoik  (Mr.  O'CONOR) 
converted  to  the  dis-trict  system.  Il  was  the  only 
general  court  in  this  system — for  the  supreme 
court,  instead  of  one  court,  practically  became 
many  courts.  The  court  of  appeals  was  the  court 
of  the  people  at  large,  and  should  bec-lecttd  by  the 


757 


people  at  large.  He  win  vMlln.g  as  a  parly  man, 
to  take  his  chance  in  electing  them.  It  the  parly 
M:-d  to  him  elected  them  all,  he  should  MI\ 
:  to  if.  It  iiis  own  parly  s'leceeded  he  should 
be  gratified.  He  was  not  one  of  those  who  would 
throw- every  tiling  valuable  to  his  party  out  of  the 
hands  of  that  parly.  He  would  be  gratified  to  see 
his  parjy  retain  their  integrity.  If  he  did  not.  be- 
lieve  that  the  principles  of  his  party  were  better 
HMH  any  other,  he  would  not  support  them.— 
When  he  sprue  of  the  general  ticket  system,  lie 
.silling  to  have  it  understood  that  he  did 
think  of  his  party.  He  wished  it  to  be  under- 
stood, that  in  desiring  a  general  ticket  system,  he 
had  an  eye  to  the  men  to  be  elected.  He  had  no 
concealments  on  the  subject — no  disguise — no 
skulking.  He  was  not  willing  to  concede  that  i! 
the  democratic  puly  should  cany  all  these  judges, 
that  therefore  they  would  be  the  worst  men  in  the 
state.  He  put  himself  on  the  open  and  manly 
ground  in  this  inaUer.  He  was  influenced  by 
party  considerations,  and  he  hoped  never  to  see 
the  day  when  he  should  forget  it.  He  avowed 
that  in  voting  for  this  amendment  he  acied  en  p  ir 
ty  considerations,  and  so/tlid  every  body  else,  dis- 
guise it  as  'hey  mi  ht  But  there  weie  other 
reasons  wr.ich  induced  him  to  go  for  it  in  pref- 
erence to  an  election  by  districts.  He  wanted  the 
whole  people  represented  in  this  court  ot  appeals, 
and  nor  mere  sections  and  localities.  If  elected 
by  district  system  the  judge  might  be  in  favor  ol 
anil  influenced  by  his  feelings  in  favor  of  the  pai- 
ticular  section  from  which  he  came.  Ifelec'etl 
by  the  people  at  large,  the  judge  would  kn#w  no 
constituency  <ut  the  people  of  the  whole  state. — 
He  rep'.uii  it-j(J  the  idea  of  having  this  court  ol' ap- 
peals a  sort  of  combination  ot  bench  and  jury.  It 
was  to  decide  on  the  law  of  of  the  land.  To  place 
foui  laymen  and  tour  lawyers  they  would  either 
rnake  it  a  bench  ot  lawyers — the  laymen  deferring 
to  the  opinion  of  their  associates — or  the  court 
would  be  divided  equally,  and  no  decision  would 
h'j  made,  except  on  the  principle,  that  as  neither 
Bide  had  a  majority,  the  proceedings  lell.  Yon 
array  thus  one  half  against  the  other  and  you  will 
never  have  a  decision.  But  how  were  you  to  begin 
the  system  on  this  hypothesis  ?  HOA-  were  you  in 
have  the  four  experienced  judges  to  be^in  with? 
The  question  was  then  taicen  on  l;ie  proposition 
previously  offered  by  Mr.  HART,  providing  for  the 
election  of  all  the  judges  of  the  court,  of  *ippeaN, 
by  general  ticket.  The  ayes  and  noes  were  called 
and  the  motion  was  lost : 

A  YK*— Messrs.  Allen,  Bergen,  Bowdish.  Chamberlain, 
Chatfield,  Clark,  Cornell,  Danforth,  Forsytti,  Hart,  Hotch- 
kiss,  Mann,  .McXitt,  O'Coaor,  !'•  s.uiloid, 

Shaw,    Tallnwdg*,    Vache,    Van    Schoonhoven.    Ward, 

\Vitbeck-24. 

•IS— Messrs.  Angel,  Archer,  F.F.  Backus,  B.  Backus, 
B;iscom,  Brown,  Bruce,  Brundage,  Hull,  Burr,  D.D.  Camp 
bell,  R.  Campbell,  jr.,  Candee,  Clyde,  <  ,  Cr<  o- 

ker,  Dana,  DodJ,  Dorlon,  Flanders,  Gardner,  Oebhard, 
Greene,  Harris,  Harrison,  Hawley,  Holl'man.  Hunur,  A. 
Huntir.g'on,  K.  Muntington,  Hyde.  .Ionian,  Kernan,  Kings- 
ley,  Kirkiand,  Loomis  Mr  Neil,  Miller,  Morris,  Nellis, 
Nicholas,  Parish,  Patterson,  Penniman,  Ponei,  Powers, 
Richmond,  Kikcr,  Salisbury,  Shav  r,  Sheldon.  Shepard 
W.  H.  Spencer,  Stanton,  Stetson,  Stow,  Strong  Sw 
mer,  Tali,  Tagaart,  J  J.  Taylor.  W.  Taylor,  Tuthill, 
Warren,  Waterbury,  Wood,  V/ordrn,  A  Wright,  W.  B. 
Wright,  Yav.ger,  Young,  Youngs— 71. 

Mr.  HARRIS  hoped  the  Contention  would  par- 
don hioi,  if  in  this  case  he  violated  n  rule  which 


he  had  laid  down  tor  himself,  not  to  speak  more 
than  once  io  the  same  question  It  was  with  si  me 
ie^ret  that  he  heard  the  remarks  which  had  just 
fallen  from  the  gentleman  from  Olsego,  (Mr. 
CHATFIELD  )  Mr.  H.  knew  nothing  which  he 
admired  more,  than  to  see  a  body  of  men  like  this, 
win  se  situation  entitle  them  to  influence — whose 
talents  eniitle  them  to  take  the  lead  in  public  al- 
fairs— rising  supeiior  Io  party  influences,  casting 
off  parfy  connections,  forgetting  party  interests, 
and  devoting  themselves  to  the  public  good,  reri- 
deiing  party  objects  subservient  to  the  public 
welfare.  He  had  therefore  with  some  pride  seen 
the  course  which  had  hitherto  been  taken  by  this 
Convention.  In  the  most  part  it  has  been  charac- 
terized by  an  enlightened  and  magnanimous  poii. 
cy.  From  all  quariers  were  heard  congratulations 
that  party  lines  had  been  disregaided,  and  that 
party  interests  had  been  forgotten  in  our  delibera- 
tions. It  was  with  pain  then  that  he  had  wit- 
nessed the  attempt  of  the  gentleman  from  Otsego 
to  bring  party  interests  to  bear  upon  the  question 
which  had  just  been  decided.  The  result  of  ;hat 
vote  had  however  re-assured  his  faith  in  the  fa-1 
vorable  result  of  the  deliberations  of  this  body. 
That  gentleman  had  sprung  his, party  rattle  here, 
but  it  was  to  little  effect ;  and  he  was  glad  to  see 
that  his  appeal  had  failed  to  secure  a  parly  vote 
upon  the  question.  But  enough  of  this.  In  re. 
gard  to  the  court  of  appeals,  he  regarded  it  as  a 
matter  of  immense  importance  in  settling  the  or- 
ganization of  the  judiciary  of  the  state.  He  had 
little  faith  in  the  proposition  to  elect  four  judges 
of  this  court  by  general  ticket,  as  they  must  be  if 
the  report  of  the  committee  was  adopted.  He  had 
no  faith  that  it  would  be  adding  much  to  the  effi- 
ciency or  ability  of  the  court  to  pursue  that  course. 
If  we  would  have  an  efficient  court,  which  would 
maintain  the  credit  of  the  state,  and  secure  the 
confidence  of  the  people,  the  judges  should  be  se- 
lected from  the  most  experienced  met.  to  be  found 
in  the  state.  It  was  his  desire  therefore  that  they 
should  be  taken  from  among  the  senior  judges  of 
the  supreme  court.  This  was  the  only  way  in  which 
we  should  be  able  to  maintain  the  character  of  the 
court,  and  secure  uniformity  in  judicial  decisions. 
He  would  have  them  chosen  from  the  different 
districts  in  the  state,  so  that  we  sho*uld  have  each 
district  represented  upon  that  bench,  and  by  a 
judge  who  was  familiar  with  the  course  of  judi- 
ciaf  decisions.  As  to  the  position  of  the  gentle- 
man from  Herkimer  (Mr.  HOFFMAN,)  that  the 
judges  of  this  court  of  last  resort  should  eminent- 
ly be  the  representative  of  the  whole  state,  Mr. 
HARRIS  asked  if  they  would  not  be  the  represen- 
tatives of  the  state  just  as  much  as  though  elected 
by  general  ticket  ?  How  was  it  now  in  reference 
to  the  court  for  the  correction  of  errors  ?  The 
judges  were  elected  from  eight  separate  districts ; 
and  yet  who  had  ever  heard  it  objected  to  that 
court  that  it  did  not  represent  the  entire  state, 
although  each  one  was  elected  by  only  one-eighth 
of  the  people  of  the  state  ?  We  found  this  prin- 
ciple running  through  all  our  popular  elections. 
Suppose  these  judges  were  elected  by  general 
ticket,  and  were  nominated  by  a  convention  for 
the  whole  state,  would  not  one  judge  be  selected 
from  each  of  the  several  districts  of  the  state  ? 
This  course  was  taken  in  regard  to  all  officers 
elected  by  the  state  at  large;  they  were  always 


758 


distributed  throughout  the  different  parts  of  the 
state.  He  had  some  pride  in  the  composition  of 
this  highest  court,  and  desired  that  it  should  be 
made  up  of  the  most  able  judges.  To  them  would 
deference  be  paid  by  all  other  tribunals,  and  their 
adjudications  would  be  referred  to  by  all  the  le- 
gal men  in  the  state.  Their  decisions  would 
alone  h'nd  their  way  into  our  books  of  reports,  and 
stand  as  models  for  future  judicial  proceedings. 
These  were  his  reasons  for  desiring  to  give  to  the 
court  of  appeals  a  dignified  and  stable  character. 

Mr.  ChL-i  I'FiELD  ieulied  that  the  remarks  he 
mifrie  were  drawn  out  by  the  Irequent  allusions 
here  to  parties,  and  hy  the  position  laken  by  some 
that  these  judges,  if  elected  by  general  ticket, 
would  be  pariy  judges.  He  said,  and  he  repeated 
that  he  was  willing  to  declare  the  grounds  of  his 
action  here  He  would  not  act  the  hypocritical 
part  or' deprecating  party  feeling,  and  ytt  aiming 
all  the  while  to  accomplish  p-irty  purposes.  He 
made  no  charge  upon  any  body,  but  he  had  had 
reason  to  believe  that  there  was  a  party  who  were 
exceedingly  gratified  to  see  no  party  lines  here, 
and  because  they  were  getting  all  the  benefit  ot 
this  state  of  things.  The  gentleman  from  Albany 
was  happy  to  see  no  partv  here.  Very  well.  It 
might  increase  his  chances  for  the  office  of  gover- 
ernor  For  himself  whilst  he  had  a  place  here, 
and  whilst  he  believed  that  as  good  men  could 
be  selected  from  his  paity  as  fiom  the  other,  he 
shoul  I  act  on  the  principle  that  duty  required  that 
be  should  make  that  selection.  He  had  yet.  to 
learn  that  the  judges  in  district  would  not  be  nom- 
inated and  elected  by  parties,  as  much  as  if  elect- 
ed by  general  ticket,  or  that  tl.e  people  at  large 
Could  not  elect  as  good  judges  as  the  people  of  a 
district.  In  going  for  ihe  general  ticket  system, 
he  did  avow  what  every  other  man  would  perhaps 
disavow,  and  yet  act  upon.  If  he  did  start  his 
party  rattle  here,  its  effect  had  been  to  drive  one 
party  with  two  exceptions  in  phalanx  against  the 
amendment — whilst  his  own  party  divided.  On 
another  occasion,  the  same  party  went  en  masse 
one  way  here.  These  fac;s  showed  on  what  prin- 
ciple certain  gentlemen  acted  here,  whatever 
might  bp  their  pn  fissions. 

Mr.  BROWN  said  that  he  voted  on  this  amend- 
ment without  designing  to  commit  himself  on  the 
question  of  the  manner  in  which  these  judges  are 
to  be  elected.  He  voted  with  reference  to  the 
question  as  to  whether  four  of  these  judges  should 
or  should  not  be  taken  from  the  Supreme  Court. 
Mr.  B.  denied  that  any  question  of  party  politics 
was  involved  in  the  vote  just  taken.  He  was 
gratified  that  the  deliberations  of  the  convention 
thus  far  had  been  conducted  with  a  total  absence 
of  party  feeling,  and  he  hoped  it  would  continue. 
He  apprehended  that  although  there  might  be 
party  leaders  here,  yet  they  might  be  found  with- 
out any  party  followers.  He  should  endeavor  to 
lead  no  one,  and  certainly  should  not  be  lead 
himself — his  attachment  to  party  was  suffici- 
ently known  to  be  as  strong  as  that  of  any  other 
man,  and  he  apprehended  that  he  had  reached  too 
mature  an  age  to  be  suspected  of  a  desire  to  change 
them  nowr.  He  spoke,  he  believed,  the  senti- 
ments cf  his  constituents — the  people  of  a  county 
as  strongly  democratic  in  principle,  and  as  firm 
in  their  attachments  to  them,  as  those  of  any 
other — when  he  paid  he  desired  to  Bee  these 


judges  composed  of  the  members  of  both  parties. 
There  was  nothing  in  the  judiciary  that  had  any 
connection  with  the  strife  of  party  politics.  Mr. 
B.  concluded  by  reminding  gentlemen  that  in 
proposing  amendments  to  the  report,  they  should 
be  careful  to  observe  that  it  should  also  be  in  har- 
mony with  the  other  provisions  of  the  report. 

Mr.  PATTERSON  briefly  expressed  himself 
in  favor  of  the  amendment  of  Mr.  HARRIS.  This 
and  one  or  two  trifling  points  were  probably  all 
the  difference  he  should  have  with  the  report. 

Mr.  RICHMOND  said  that  the  great  complaint 
he  had  heard  against  the  court  of  errors,  was  that 
they  satin  judgment  on  their  own  acts,  and  were 
not  therefore  as  independent  as  they  ought  to  be. 
He  looked  upon  this  proposition  as  proposing  the 
same  thing,  and  he  did  not  believe  that  judges 
were  any  more  independent,  honorable  or  high- 
minded  than  legislators.  He  would  not  make  a 
court  of  appeals  like  this,  it  was  but  continuing 
the  present  system.  He  would  have  a  court  of 
errors  elected  by  the  people,  and  separate  entire- 
ly from  the  Supreme  court.  This  having  a  court 
of  appeals,  a  supreme  court,  and  a  justices  court, 
all  from  one  court,  was  rather  more  court  than  he 
was  willing  to  go  for. 

Mr.  W.  TAYLOR  said  this  proposition  of  the 
gentleman  from  Albany,  by  taking  the  judges 
from  the  supreme  court,  would  be  to  lessen  its 
force.  It  was  feared  that  there  was  not  a  suffi- 
cient force  now.  He  was  in  favor  of  electing 
some  of  the  judges  of  the  court  of  appeals  by  the 
people  of  the  whole  state,  and  also  of  having  some 
of  it»  members  taken  from  the  supreme  court. 
He  was  inclined  to  favor  the  proposition  of  the 
gentleman  from  Ontario,  which  provided  for  the 
election  of  eight  judges — the  court  to  consist  of 
twelve — by  the  people  at  large.  The  people 
would  undoubtedly  select  men  amply  qualified  to 
occupy  those  high  and  exalted  stations  It  ap- 
peared to  him  that  a  court  thus  composed  would 
possess  all  the  qualifications  required — it  would 
contain  men  learned  and  experienced  in  the  laws, 
and  men  of  standing  in  community  for  their  sound 
sense  and  wisdom,  and  selected  with  particular 
reference  to  their  qualifications  for  it.  As  re- 
garded party  influence,  whatever  mode  of  elec- 
tion was  adopted,  and  however  men  may  desire 
to  avoid  such  influences  in  their  selection  of 
judges,  he  ventured  to  say  that  such  feelings  would 
not  be  smothered — no  matter  what  mode  of  ap- 
pointment or  election  might  be  adopted.  It  was 
utterly  impossible  to  avoid  it.  All  that  could  be 
expected  was  that  men  should  discard  party  in- 
fluences in  their  action  after  selection  as  judges. 
He  hoped  therefore  either  the  report  of  the  com- 
mittee or  the  amendment  of  the  gentleman  from 
Ontario  would  be  adopted. 

Mr.  NICHOLAS  said  it  was  not  his  intention 
or  desire,  in  the  suggestion  made,  that  these 
judges  should  be  elected  by  general  ticket.  If 
they  were  to  b*e  chosen  in  that  way,  the  fewer 
there  were  of  them  the  better.  Of  all  the  curses 
that  could  befall  us,  a  political  judiciary  would 
be  the  greatest ;  and  the  result  ot  a  general  ticket, 
system  might  be  to  inflict  upon  us  a  political  ju- 
diciary. An  election  by  districts  would  not  only 
give  us  a  judiciary  made  up  of  both  parties,  bu 
would  tend  to  break  up  centralization— an  obj« 
of  no  small  importance,  as  he  regarded  it. 


759 


Mr.  KIRKLAXD  continued  the  debate  in  favor 
of  the  amendment  of  Mr.  HARRIS. 

Mr.  HOFFMAN  replied. 

The  question  being  then  taken  on  Mr.  HAR- 
RIS' amendment,  it  was  rejected — ayes  24,  noes 
76,  as  follows: 

A  YES-; Messrs.  Archer,  F.  F  Backus,  H.  Backus.  Ba- 
ker, Bascom.  Bruce,  Burr,  Candee,  Chatlield.  Cook,  Dod(i, 
Flandem.  Gardner,  Harris,  E.  Huntington,  Kitkland,  Pat- 
terson, Penniman,  Porter.  Salisbury,  tohaver,  J.  J. Taylor, 
A.  Wright  W.  B.  Wright— -24. 

NOES— Messrs.  Allen,  Angel,  A>  rault,  Bergen.  Bow- 
dish,  Brown,  Bull,  D  1).  Ottmpbell,  Clark,  Clyde,  Conely, 
Cornell.  Crookcr,  Uana,  Danlorth,  Dorlon,  Forsyth,  Oeb- 
haid  Graham,  Greene.  Harrison,  Han,  Hawley,  Hoffman, 
Hotchki>s,  Hunt,  Hunter,  A.  Huntington,  Hutchmson, 
Hyde,  Jor  Ian.  Kemblf, Kennedy, King^ley,  Loomij,  Mann, 
McNitt,  Marvin,  Miller,  Morris.  N  tills,  Nicholas,  O'Con- 
or,  Peikins,  Powers,  President,  Richmond,  Riker,  Rug- 

§les,  Shaw,  Sheldon,    Shrpard,    W.  H  Spencer,    Stanton, 
tephens,  Stetson.  Stow.  Strong,  Swackhamer,  Taft,  Tag- 
gart,Ta!l  nadge.  W  Taylor,  TiMen,  Townsend,    Tuthill, 
Van    Schoonhoven,  Ward,  Warien,    Waterbury,  White, 
Witbeck,  Wood,  Wor.len,  Yawgt-r,  Young,  Youngs— 76. 

Mr.  STETSON  moved  to  amend,  by  inserting 
after  "  serve,"  in  the  4th  line,  "  and  at  whose 
election  all  the  electors  of  the  State  shall  have  a 
right  to  vote." 

Mr.  SHEPARD  moved  to  adjourn.     Agreed  to. 

Adjourned  to  half-past  8  o'clock  to-morrow 
morning. 

WEDNESDAY,  (12nd  day)  August  26. 

Prayer  by  the  Rev.  Mr.  STOVER. 

Mr.  TAGGART  moved  that  the  returns  made 
some  time  since  by  the  Chancery  Clerk  of  the  8th 
Circuit  relative  to  monies  in  the  hands  of  the 
Court  of  Chancery ,  be  returned  to  the  clerk  to 
assist  him  in  making  out  some  further  returns 
which  the  Convention  had  called  for.  Agreed  to. 

The  committee  then  took  up  the  unfinished  bu- 
siness, being  the  reports  on  ' 

THE  JUDICIARY  SYSTEM. 

Mr.  STETSON  withdrew  the  amendment  to 
the  second  section  which  was  pending  yesterday 
when  the  Convention  adjourned. 

Mr.  CHATFIELD  moved  to  strike  out  the  sec- 
tion down  to  and  including  the  word  "  serve"  in 
the  4th  line,  and  insert,  "  There  shall  be  eight 
judges  of  the  Court  of  Appeals,  elected  by  the 
electors  of  this  State,  who  shall  hold  their  office 
for  8  years." 

This  was  opposed  by  Mr.  A  W.  YOUNG,  who 
said  he  first  wished  to  know  how  the  judges  were 
to  be  elected.  He  wanted  them  by  single  districts. 

Mr.  BURR  said  he  did  not  know  and  could  not 
tell  how  these  judges  were  to  be  employed.  He 
should  be  unwilling  to  pay  them  large  salaries 
unless  there  was  employment  for  them  ;  and  he 
could  not  conceive  that  they  would  have  employ- 
ment for  all  parts  of  the  year.  Nor  was  he  able 
to  discover  why  one  of  these  should  be  a  "  chief 
justice."  He  was  democratic  enough  to  desire 
the  judges  to  be  placed  on  a  common  level. 

Mr.  I  AGliAKT  said  tru-y  \\ould  have  plenty  to 
do,  it  they  did  their  duty  faithfully. 

Mr.  CHATFIELD  demanded  ihe  yeas  and  nays 
on  his  amendment,  an!  they  wore  ordered. 

Mr.  SIOW  wished  to  have  the  elec'nm  by  four 
double  district-,  instead  ot  eight  single  districts; 
and  he  further  wished  so  to  classify  the  judges 
that  they  should  go  out  in  classes.  So  he  must 


vote  against  tins,  in  order  lo  gel  a  betier  amend- 
ment. 

Mf.  STETSON  contended  that  'he  judgesof  the 
Court  of  Appeals  should  represent  the  entire  peo- 
ple, and  Dot  be  the  mere  leprrsentalivcs  of  local 
districts.  Many  local  piejudices  might  linctuiea 
local  judge — lor  iri.-t.tnce,  ant  i-rnasonry  or  aboii- 
Horns. n,  and  many  other  matters. 

Mr.  STRONG  said  that  he  (.Mr.  S.)  must  have 
supposed  he  was  talking  to  school-boys;  he  takes 
it  for  certain  that  a  judge  elected  in  the  eighth 
district,  must  be  a  scoundrel,  a  villain,  &,c.  It  is 
all  moonshine — no  sound  argument  about  it.  He 
wants  all  the  judges  appointed,!)}  the  Governor. — 
But  he  has  blown  oil' some  of  the  gas  that  has 
been  a  long  time  collecting,  and  the  gentleman 
would  feel  betier,  he  hoped.  It  the  amendment  to 
the  amendment  was  adopted,  then  he  couid  not 
vote  lor  the  amendment,  because  if  eight  judges 
were  to  be  elected  by  the  people,  it  had  bei-n  said 
thai  four  more  must  be  taken  in. m  the  Supreme 
Court,  making  12  in  all;  and  that  was  loo  many. 

Mr.  WATERBURY  opposed  the  general  ticket 
systtm.  He  wanted  to  know  a  judge  betoie  he 
voted  for  him. 

The  yeas  and  nays  were  then  taken  on  CHAT- 
FIELD'S  amendment,  and  it  was  lost,  thus: 

AYES— Messrs.  Allen,  Archer,  Ayrsult,  F.  F.  Backus, 
H.  Backus  Baker,  Bascom,  Bruce,  Brundage,  Bun.  Can. 
dee,  Chamber  ain,  Cook,  Crocker,  Dana,  i)odd,  Dorlon 
Flanders,  Gebhard,  Graham,  Harris,  Harrison,  Hawley,  E. 
Huntington,  M&rvin,  Miller,  Morris,  Nicho  as,  Parish"  Pat- 
terson, Penniman,  Porter,  lih  ades,  Richmond,  Salisbury, 
Shaver,  Shepard,  W  H.  Spencer.  Strong,  Ta.ngart,  Town- 
send,  Warren,  Waterbury,  VVorden,  A.  Wright  W.  B. 
Wright,  Young,  Youngs— 48. 

NOES— Messrs.  Angel,  Bergen,  Bowdi  h,  Brown,  Bull, 
D.  D.  Campbeil,  R.  C  ampbell,  jr.,  Chath'eld.  Clark,  Clyde, 
Conely,  Cornell.  Danforth,  Gardner,  Greene,  Hart,  Hoff- 
man, Hotchk  ss,  Hunt  Hunter,  A.  Huntington,  Hu'tciun- 
son,  Hyde,  Jordan,  Kemble,  Kennedy,  Keinan,  King-ley 
Kirkland,  Loomis,  Mann,  Mc\ei  ,  £>cNitt,  Nellis,  NJcoU 
O'Conor,  Perkins,  Powers,  Pre  ident,  Hiker,  Ruggles,  St'. 
John,  Sanford,  Shaw  Sheldon,  Stanton,  Stephens,  Siet-on, 
Swackhamer,  Taft,  J.  J.Taylor,  Tilden,  1  uthill,  Vache, 
Van  Schoonhoven,  Ward,  White,  Witbeck,  Wood  Yaw 
ger— 61 

Mr.  BROWN  said  they  ought  to  test  the  ques- 
tion whether  they  would  have  four  of  these  judges 
to  be  judges  of  the  supreme  court. 

Mr.  CHATFIELD  explained  that  he  did  so 
mean. 

Mr.  BROWN  was  opposed  to  having  more  than 
eight  or  nine  judges.  More  than  that  number 
did  not  attend  to  their  business.  If  by  this  amend- 
ment it  was  to  be  left  open  to  add  four  more  judges 
to  these  eight  judges  of  the  appellate  court,  he 
should  vote  against  it. 

Mr.  HARRISON  wished  to  offer  a  substitute 
for  the  two  first  sections. 

The  PRESIDENT  :     Not  in  order. 

Mr.  W.  TAYLOR  said  in  order  to  test  the  sense 
of  the  Covention  as  to  the  number  of  judges  and 
whether  any  are  to  come  from  the  supreme  court, 
would  offer  the  following  : 

"  There  shall  be  a  court  oi  appeals  composed  of  twelve 
judges,  of  whom  lourshalt  be.elect.d  Irom  the  cl*ss  of 
judges  of  the  supreme  court  having- the  ?hoi  test  time  to 
*erve.  and  eight  shall  be  eltcttd  by  the  electors  ol  the 
state, ;}&c. 

Mr.  MARVIN  said  that  if  the  court  ot  appeals 
was  to  be  in  session  all  the  year  round  twelve 
judges  would  not  be  too  many— but  if  the  system 
was  to  be  so  adjusted  as  to  enable  that  court  to 


760 


do  all  its  business  in  two  or  three  months,  then 
he  thought  twelve  would  be  too  many. 

Mr.  PERKINS  did  not  wish  eight  broken  down 
politicians  put  on  the  bench  of  the  court  of  ap- 
peals ;  he  did  not  want  to  provide  any  such  sine- 
cure— by  putting  them  along  side  the  four  judges 
who  would  do  all  the  work.  They  would  be  any- 
thing but  ornaments,  and  he  should  vote  against 
the  amendment. 

Mr.  HARRISON  opposed  it. 

The  ayes  and  nays  were  then  ordered  on  Mr. 
TAYLOR'  amendment  to  the  amendment,  and  re- 
sulted— ayes  12,  noes  25. 

So  it  was  lost. 

Mr.  CONELY  moved  to  strike  out  part  of  the 
amendment,  and  insert — "  At  their  first  meeting 
they  shall  determine  by  lot  the  time  each  mem- 
ber respectively  shall  serve,  which  shall  be  from 
one  to  eight  years  inclusive,  and  annually  there- 
after one  "shall  be  elected  every  eight  years." 

This  was  lost — only  28  voting  for  it. 

Mr.  MORRIS  wished  to  have  eight  judges 
elected  to  form  part  of  the  court ;  but  not  to  con- 
stitute the  whole  court. 

The  yeas  and  najs  were  then  ordered  on  the 
amendment,  and  resulted  thus: 

AYES— Messrs.  Allen.  Bergen,  Bowdish,  Cambreleng, 
D  D.  Campbell,  Chatfield,  Clark,  Conely,  Cook,  Cornell, 
Danforth,  Hart,  Hotchkiss,  Kennedy,  Mann,  McNitt,  Mor- 
ris, O'Conor,  Porter,  President,  Sanford,  Shaw,  Tallmadge, 
Vache,  Van  Schconhoven,  War.),  Waterbury,  White, 
Witbeck— 29. 

NOES— Messrs.  Angel,  Archer,  Ayrault,  F.  F.  Backus, 
H  Backus,  Bascom,  Brown,  Bruce,  Brundagu,  Bull,  Burr, 
B'.  Campbell,  jr.,  Candee,  Clyde,  Crooker,  Dana,  D.dd, 
Dorlon.  Flanders,  Forsyth,  Gardner,  Gebhard,  Graham, 
Greene,  Harris,  Harrison,  Hawley,  Hoffman,  Hunt,  Hun- 
ter A.  Huutington,  E.  i'untington,  Hmchinson.  Hyde, 
Jordan  Kemble,  Kernan,  Kiugsiey,  Kirkland,  Loomis,  Mc- 
Neil, Marvin,  Miller,  Nellis,  Nicholas,  Nicoil,  Parish,  Pat- 
terson Peunimau,  Perkins,  Powers,  Richmond,  Kiker,  Rug- 
gles,  St.  John,  ,-alisbury,  Shaver,  Sheldon,  Shepard,  Sim- 
mon's, W.  H  Spencer,  Stanton,  Stephens,  Stetson,  Stow, 
Strong  Swackhamer,  Taft,  Taggart,  Tollm,,dge,  J.J.  Tay- 
lor Townsend,  Tuthill,  Warren,  Wood,  Worden,  A. 
Wright,  W .  B.  Wright,  Yawger,  Young,  Youngs— 81. 

Mr.  STOW  offered  the  following  amendment 
to  the  second  :-ection  : 

There  shall  be  a  court  of  appeals,  composed  of  twelve 
judges,  of  whom  eight  shall  be  elected,  and  four  shall  be 
selected  from  justices  of  the  supreme  court.  The  said 
eight  judges  shall  b«  chosen  in  districts,  for  which  purpose 
the  state  shall  be  diviaediiito  ioui  districts,  anil  two  judges 
shall  be  elected  from  each  district.  One  of  the  judges 
thus  chosen  from  each  district  at  the  tirst  election  shall  hcttd 
his  ortice  lor  three  ye.irs,  and  one  lor  six  years,  as  shall  be 
determined  by  lot,  at  the  ftist  assembliag  ol  the  said  court. 
After  the  first  election,  the  judge  elected  shall  hold  his  of- 
fice for  six  years,  except  when  chosen  to  fill  a  vacancy 
occasioned  otherwise  than  by  the  expiration  of  the  term  of 
the  juJp'e;  but  when  elected  to  fill  a  vacancy  thus  occa- 
sioned the  term  of  such  judge  shall  only  be  for  the  unex- 
pired  term  of  the  jud^e  whose  place  he  shall  have  been 
cho«en  to  supply.  Provision  shall  be  made  by  Jaw  for  de- 
siffnating  one  of  the  number  elected  as  chief  judge,  and 
for  selecting  justices  of  the  supreme  court  from  time  to 
time.  No  justice  shall  bi  entitled  to  a  vote  in  the  court  oi 
appeals  in  any  case  which  was  tried  or  det-ided  by  him. 
He  may,  however,  assign  the  reasons  for  his  opinion. 

After  some  slight  explanation  between  Mr. 
STOW,  Mr.  BROWN,  and  Mr.  RUGGLES,  the  yeas- 
and  nays  were,  oidered,  and  resulted  thus: 

AYES— Messrs.  Allen,  Archer,  Ayrault,  Bergen,  Can- 
dee  Chatfield,  Cornell,  Dorlon,  Harris,  Marvin,  Miller, 
Morris  Nicholas,  O'Conor,  Parish,- Patterson,  Penniman, 
Richmond,  W.  H  Spencer,  Stow,  Waterbury,  Worden, 
W.  B.  Wright— 23. 

NOES— Messrs.  F.F.  Backus,  H.  Backus,   Baker,  Bas- 


com, Brown,  Bruce,  Brundage,  Bull,  Burr,  Cambreleng, 
D.  D.  Campbell,  R.  Campbell,  Jr,  Clyde,  Conely,  Cook, 
Crooker,  Dana,  Danforth,  Dodd,  Flanders,  Forsyth,  Gard- 
ner, Graham,  Greene,  Harrison,  Hart,  Hawley,  Hoffman, 
Hotchkiss,  Hunt,  Hunter,  A.  Huntington,  Hutchinson, 
Hyde,  Jordan,  Kemble.  Kennedy,  Kernan,  Kingsley,  Kirk, 
lana,  Loomis,  Mann,  McNitt,  Nellis,  Perkins,  Powers,  Pre- 
sident, Riker,  Ruggles,  St.  John,  Salisbury,  Sanford,  Sha- 
ver, Shaw,  Sheldon,  Shepard,  Stanton,  Stephens,  Stetson, 
Strong,  Swackhamer,  Tafft,  Taggart,  Tallmadge,  J.  J. 
Taylor,  Townsend,  TuthilJ,  Van  Schoonhoven,  Ward, 
Warren,  White,  Witbeck,  Wood,  A.  Wright,  Yawger, 
Young,  Youngs—  77. 

So  it  was  lost. 

Mr.  RUGGLES  then  moved  to  amend  so  as  to 
provide  that  "  no  member  of  the  court  of  appeals 
shall  have  a  vote  in  the  decision  of  any  question 
on  which  he  may  have  given  a  written  opinion 
in  the  courts  below." 

Mr.  STOW  moved  to  strike  out  the  words 
"  written." 

Mr.  PERKINS  suggested  that  the  words  "  in  a 
court  at  bane,"  should  be  substituted  for  the  word 
"  written." 

After  a  brief  debate  in  which  Messrs.  SIM- 
MONS, KIRKLAND,  RUGGLES,  HOFFMAN, 
HARRIS,  TAGGART,  and  RICHMOND,  took 
part,  the  question  on  striking  out  the  word 
"  written,"  was  taken,  and  it  was  rejected  ayes 
28,  nays  76. 

Mr.  CHATFIELD  then  moved  to  strike  out 
the  words  "  in  the  court  below"  after  the  word 
"  opinion." 

This  was  rejected. 

The  question  was  then  taken  on  the  amend- 
ment, and  there  were  ayes  23,  nays  83.  So  it 
was  rejected. 

Mr.  HARRIS  then  moved  the  section  by  inser- 
ting after  the  word  "  serve"  in  the  fourth  line, 
the  words  "  the  judges  to  be  elected  shall  be  cho- 
sen by  districts  for  which  purpose  the  state  shall 
be  divided  into  four  districts."  Mr.  H.  briefly 
expressed  his  opposition  to  any  election  by  gen- 
eral ticket. 

Mr.  MORRIS  urged  that  the  question  should 
first  be  taken  on  the  number  of  which  the  court 
should  consist,  and  expressed  the  hope  that  Mr. 
H.  would  withdraw  his  amendment  for  that  pur- 
pose. 

Mr.  HARRIS  assented  to  this  and  the  amend- 
ment was  accordingly  withdrawn. 

Mr.  MORRIS  then  moved  to  strike  out  of  the 
first  line  the  word  "eight,"  and  to  insert  the  word 
"  ten,"  and  to  strike  out  from  the  second  line  the  • 
the  word  "  four,"  and  insert  "  six."  He  explained 
that  his  object  was  to  constitute  the  court  of  ten 
members,  and  to  make  a  majority  of  these  six — 
elective  by  the  people.  He  desired  to  give  them 
a  preponderance  over  the  judges  of  the  supreme 
court. 

Mr.  NICOLL  thought  that  eight  was  quite 
em.'Ugh  lor  I  he  discharge  ol  business.  Ten  would 
perhaps  tend  to  reiaid  a. 

Mr.  SALISBURY  was  not  satisfied  that  even 
eight  would  find  enough  to  employ  themselves, 
and  he  certainly  was  opposed  10  any  increase  of 
the  number. 

Air.  CHATFIELD  suggested  that  by  making 
the  number  seven,  tour  to  be  elected  by  the  peo- 
ple, the  gentleman  from  New  York  could  ditam 
ins  object,  without  an  increase  ot  the  force. 

Mr.  MORRIS  modified  his  amendment  so  as  to 


761 


propose  to  strike  out  eight  and  insert,  seven,  and 
to  strike  out  four  and  insert,  "three." 

Mr.  BROWN  thought  it  should  be  made  obli. 
gatory  on  all  the  judges  to  be  present,  especially 
those  elected  by  the  people,  or  else  the  end  de- 
sired by  gentlemen  could  not  be  attained.  He 
added  that  the  committee  had  m  their  report  ar- 
ranged the  number  of  judges  in  proportion  to  the 
circuit,  and  therefore  this  amendment  would  de- 
range the  whole  plan. 

The  question  being  taken  the  amendment  was 
rejected — aye*  29  nays  76. 

Mr.  NICOLL  then  moved  to  amend  by  striking 
out  the  words  "  the  shoitest  time  to  serve"  in  the 
fourth  line,  and  inserting  "  four  ye-irs  to  serve." 
This  he  said  would  obviate  the  objection  that  if 
these  judges  were  to  sit  in  this  court  during  the 
two  last  years  ot  their  time,  they  might  be  influ- 
enced by  a  desire  tor  a  re-election. 

The  amendment  was  rejected. 

Mr-  HARRIS  then  renewed  his  amendment 
{withdrawn  at  the  request  of  Mr.  MORRIS)  and  the 


question  being   taken 
nays  70. 


it   was   rejected,  ayes  38, 


Mr  BROWN  moved  to  amend  by  striking  out 
«'  one"  in  the  seventh  line,  and  inserting  "two," 
and  striking  out  "  second"  in  '.he  eighth  line  and 
inserting  "  four."  He  desired  to  make  the  section 
so  that  one  half  th*  judges  should  go  out,  at  the 
end  of  four  years,  and  the  other  halt'  at  the  end  ol 
eight  years.  Their  might  be  a  difficulty  in  get- 
ting a  good  lawyer  to  give  up  his  business  and  be- 
come a  judge — when  perhaps  he  might  only  serve 
two  years. 

This  amendment,  after  a  brief  debate,  in  which 
Messrs.  SI MMCNS,  STEPHENS,  MORRIS  and 
PATTERSON,  participated,  was  rejected. 

Mr.  TAGGART  offered  the  following  amend- 
ment to  come  in  at  the  end  of  the  section. 

"  And  no  judgment,  order  or  decision  of  the  Su- 
preme Court,  shall  be  reversed  without  the  concurrence 
of  at  least  five  judges  oi  the  Court  of  Appeals." 

This  was  rejected. 

Mr.  TAGGART  then  proposed  to  add: 
"  The  Court  of  Appeals  shall  have  a  general  superinten 
ding  control  over  inferior  jurisdictions.  It  shall  have  pow- 
er to  issue  writs  of  error  and  supersedeas,  certiorari,  ha- 
beas corpus,  mandamus,quo  warranto,  and  other  remedial 
writs,  and  to  hear  and  determine  the  same." 

Mr.  T.  briefly  supported  his  amendment,  when 

The  question  being  taken  it  was  rejected. 

Mr.  BASCOM  moved  the  following  amend- 
ment : — 

"  A  session  of  said  court  shall  be  held  as  often  as  once  in 
two  years  in  each  of  the  judicial  districts  of  the  state." 

This,  Mr.  B.  said,  would  prevent  a  centraliza- 
tion of  the  courts  at  Albany,  in  relation  to  which 
there  had  hitherto  been  so  much  complaint. 

The  amendment  was  rejected — ayes  34,  noes 
68. 

Mr.  HARRIS  moved  to  strike  out  the  word 
*«  elected"  in  the  fifth  line,  so  as  to  place  all  the 
judges  of  the  court  of  appeals,  whether  elected 
or  selected,  on  a  par  in  respect  to  the  eligibility 
to  the  station  of  chief  justice. 

This  amendment,  after  ajbrief  debate,  was  re- 
jected— ayes  ">(>,  ir.iys  5o,  as  follows  : 

AYES— Messrs.  Allen,  Archer,  F.  F.  Backus,  H.  Back- 
us, Baker,  Bascom,  Bowdish,  Brown,  Bruce,  Bull,  Burr 
Candce,  Crooker,  Dana,  Dodd,  Dorlon,  Flander-;,  Gardner, 
Harris,  Harrison,  Hawley,  A.  Huntington,  E.  Huntingtcn, 
Kemblc,  Kennedy,  Kirkland,  Loomis,  Mann,  Marvin,  Mil 


ler,  Nellis,  Parish,  Patterson,  Penniman,  Porter,  Rugglee, 
Salisbury,  Sanford,  Simmons,  \V.  H.  Spencer,  Stephens, 
Strong,  Taggart,  Tuthill,  Vache,  Waterbury,  A.  "W right, 
W.  B.  Wright,  Young— 60. 

NAYS— Messrs.  Angel,  Ayranlt,  Bergen,  Brundage 
Cambreleng,  D.  D.  Campbell,  Chatfiekl,  Clark,  Clyde, 
Conely,  Cook,  Cornell,  Danforth,  Forsyth,  Gebhard, 
Greene,  Hart,  Hofi'man,  Hotchkiss,  Hunt,  Hunter,  Hutch- 
inson,  Hyde,  Jordan,  Kerrran,  Kingsley,  McNitt,  Morris, 
Nicholas,  Nicoli,  O'Conor,  Perkins,  Powers,  President, 
Richmond,  Riker,  St,  John,  Shaw,  Sheldon,  Shepard, 
Stetson,  Stow,  Taft,  Tallmadge,  J.  J.  Taylor,  W.  Taylor, 
Tilden,  Towns-end,  Van  Schoonhoven,  Ward,  Warren, 
White,  Witbeck,  Wood,  Yawger.Youngs— 65. 

Mr.  LOOMIS  desired  to  tkae  the  sense  of  the 
convention  on  a|propositk>n,  which  he  feared, 
however,  would  not  be  received.  He  moved  to 
amend  so  as  to  make  the  term  of  the  elected 
judges  of  the  court  of  appeals  four  years,  instead 
of  eight.  Mr.  L.  briefly  argued  in  favor  of  a  short 
term  of  office. 

Mr.  TILDEN  briefly  opposed  the  amendment, 
as  did  Mr.  SIMMONS. 

The  question  being  taken,  the  amendment  was 
rejected.  Ay«-s  27,  nays  79,  as  follows: 

AYES— Messrs  Archer,  F.  F.  Backus,  Bascom,  Bow- 
dish,  Burr,  Chatfield,  Danforth,  Flanders,  Harris,  Hart, 
Hotchkiss,  Hunt,  Hutchinson,  Loomis,  Mann,  Morris, 
Richmond,  St.  John,  Saniord,  Sheldon,  W.  H.  Spencer, 
Taft,  Vache,  Waterbury,  Wood,  A.  Wright,  W.  B.Wright, 
—27. 

NAYS— Messrs.  Allen,  Angel,  Ayrault,  H.  Backus,  Ba- 
ker, Bergen,  Brown,  Bruce,  Brundage,  Bull,  Cambreleng, 
D.  D  Campbell,  Candee,  Clyde,  Conely,  Cook,  Cornell, 
Crooker,  Dana,  Dodd,  Dorlon,  Forsyth,  Gardner,  Gebhard, 
Graham,  Greene,  Harrison,  Hawley,  Hoffman,  Hunter,  A. 
Huntington,  E.  Huntington,  Hyde,  Jordan,  Kemble,  Ken- 
nedy, Kernan,  Kingsley,  Kirkland,  McNitt,  Marvin,  Mil- 
ler, Nellis,  Nicholas,  NicolJ,  O'Conor,  Parish,  Patterson, 
Penniman,  Perkins,  Porter,  Poweis,  President  Riker,  Rug- 
gles,  Salisbury,  Shaver,  Shaw,  Shepard,  Simmons,  Ste- 
phens, Stetson,  Stow,  Strong,  Tagyart,  Tallmadge,  J.  J. 
Taylor,  Tilden,  Townsend,  Tuthill,  Van  Schoonhoven, 
Ward,  Warren,  White, Witbeck,  Worden,  Yawger.Young, 
Youngs-79 

Mr.  ST.  JOHN  here  moved  the  previous  ques- 
tion on  the  second  section,  and  there  was  a  sec- 
ond, &c. 

The  question  was  then  stated  be  on  Mr.  HAR- 
RISON'S amendment  as  follows: — 

^  2.  The  Supreme  Court  of  Appeals  shall  be  composed 
of  a  chief  justice  and  seven  associate  judges,  who  shall 
hold  their  offices  for  eight  years.  The  chief  justice  and 
three  associate  judges  shall  be  elected  by  the  electors  of 
the  State,  on  a  general  ticket;  and  four  associate  judges 
shall  be  selected  from  the  class  of  justices  of  the  district 
court  having  the  shortest  time  to  serve.  Provision  shall 
be  made  by  law  for  the  selection  of  such  justices,  from 
time  to  time,  and  lor  classifying  those  elected  by  the  peo- 
ple, as  that  one  shall  be  elected  every  second  year. 

This  was  negatived;  and  the  second  section 
was  adopted  in  the  precise  shape  in  which  it  was 
reported— ayes  03,  noes  43,  as  follows: — 

AYES— Messrs.  Allen,  Angel,  Ayrault,  H.  Backus,  Ba. 
ker,  Bowdish,  Brown,  Bruce,  Brundage,  Burr,  Cambre 
leng,  D.  D.  Campbell,  il.  Campbell,  jr.,  Clyde,  Conely 
Crooker.  Dana,  Dunforth,  Dodd,  Dorlon,  Forsyth,  Gard, 
ner,  Gebhard,  Greene,  Harris,  Harrison,  Hawley,  Hofl'- 
man,  Hotohkiss,  Hunter,  A.  Huntington,  Hutchinson.  Jor< 
dan,  Kemble,  Kernan,  Kingsley,  Loomis,  McNitt,  Miller- 
Nellis,  Nicoli,  Powers,  Riker,  Ruggles,  Shaw,  Sheldon, 
Stephens,  Stetson,  Taft,  J.  J.' Taylor,  W.  Taylor,  Town-, 
send,  Tuthill,  Vanschoonhoven,  Ward,  Warren,  White, 
Witbeck,  Wood,  A  Wright.W.  B.Wright,  Yawger,  Youngs 
— 63. 

NOES— Messrs.  Archer.  F.  F.  Backus,  Bascom,  Ber- 
gen, Bull,  Candee,  Chatfield,  Clark,  Cook,  Cornell,  Flan- 
ders, Hart.Hunt,  E.  Huntington,  Kennedy,  Kirkland.Mann, 
Marvin,  Morris,  Nicholas,  O'Conor,  Parish,  Patterson,  Pen 


niman,  Perkins,  Porter,  President,  Richmond, St.  John,  Sal- 
isbury,  Saniord,  Shepard,  Simraons,|W.  H.  Spencer,  Stow, 


70 


762 


Strong.  Swaokhamer,  Taggart,  Tallmadge,  Vache,  Wate 
bury,  Worden,  Young — 43. 

The  Convention  then  took  a  recess. 

AFTERNOON  SESSION. 

Mr.  HUNT  offered  an  amendment  which  wa 
ordered  printed,  as  follows : — 

Strike  out  the  12th  section  of  the  report,  an 
insert  the  following- : 

§  12.  Each  senate  district,  at  its  bienial  election  for  sen 
ator,  shall  choose  three  electors  of  judges.  No  citize 
shall  vote  for  more  than  two  of  such  electors,  and  th 
three  persons  having  the  highest  number  ot  votes  shall  I 
elected.  Should  fewer  than  three  electors  be  chosen  a 
'any  such  election  in  consequence  of  two  or  more  of  th 
four  persons  receiving  the  highest  number  of  votes  ha1 
ing  an  equal  number  of  votes,  one  or  more  of  such  person 
as  the  case  may  require,  shall  be  selected  to  fill  the  defi 
ciency  by  lot.  The  electors  thus  chosen  throughout  th 
state,  shall  convene,  at  such  time  and  place  as  may  b 

Srescribed  by  law,  and  elect  the  Justices  of  the  Suprem 
ourt,  and  fill  all  vacancies  therein  occurring. 

Then  the  3d  section  of  the  Judiciary  Report  a 
amended  in  committee  of  the  whole,  was  read  a 
follows : 

^  There  shall  be  a  supreme  court  having  general  juris 
diction  in  law  and  equity. 

Mr.  MANN  proposed  to  add  to  this  section 
"  subject  to  such  regulations  and  restrictions  ai 
shall  from  time  to  time  be  prescribed  by  law." 

Mr.  MANN  said  that  in  creating  these  tribu 
nals  he  wanted  them  under  the  control  of  the  peo 
pie,  either  directly  or  through  the  legislature. 

Mr.  KIRKLAND  rose  to  a  question  of  order. — 
They  ought  to  vote  on  all  the  questions  that  were 
pending  when  they  adjourned  in  the  morning. 

Mr.  NICOLL  said,  that  however  necessary 
these  words  might  have  been  in  the  original  sec- 
tion, they  were  unnecessary  now,  as  the  section 
stood  amended.  It  would  be  tautology  to  say  thai 
this  jurisdiction  would  be  subject  to  legislative 
control. 

Mr.  RUGGLES  did  not  agree  with  the  gentle- 
man as  to  the  true  meaning  of  the  section.  He 
regarded  these  words  as  unnecessary,  to  give  the 
legislature  power  to  control  the  jurisdiction  oJ 
this  court.  He  would  vote  for  the  amendment, 
because  it  placed  the  section  in  the  same  shape 
that  it  was  in  before. 

Mr.  BROWN  urged  that  the  convention  should 
come  back  to  the  original  section,  and  restore  the 
words  struck  out  in  committee.  He  suggested 
the  following: 

«'  There  shall  be  a  supreme  court  having  the  same  ju- 
risdiction which  the  court  of  chancery  and  the  supreme 
court  now  have,  subject  to  such  additions,  limitations, 
and  regulations  as  may  be  prescribed  by  law." 

Mr.  O'CONOR  did  not  see  any  great  difference 
between  the  section  as  proposed  to  be  amended, 
and  the  original.  They  would  both  essentially 
effect  the  same  object. 

Mr.  SHEPARD  did  not  like  the  original  sec- 
tion ;  but  the  amendment  did  not  improve  it  any. 

Mr.  CHATFIELD  insisted  that  the  section  was 
right  as  it  stood  ;  it  didliot  confer  all  jurisdiction 
on  this  court,  but  left  the  legislature  to  confer  ju- 
risdiction on  other  courts. 

Mr.  BROWN'S  proposition  then  came  up  in 
order  to  be  considered  ;  it  was,  to  add  to  the  sec- 
tion the  words  "  subject  to  such  restrictions,  ad- 
ditions and  regulations  as  may  from  time  to  time 
be  prescribed  by  law." 

Mr.  SWACKH AMER  did  not  much  care  which 


of  the  amendments  prevailed  ;  but  as  the  highest 
legal  gentlemen  here  differed  about  their  effect, 
it  was  high  time  they  were  settled. 

A  personal  explanation  here  ensued  between 
Messrs.  SHEPARD  and  SWACKH  AMER. 

Mr.  O'CONOR  asked  whether  his  amendment 
relative  to  county  courts  (as  it  was  modified  by 
Mr.  STEPHENS)  did  not  take  precedence  of  this 
amendment  of  Mr.  BROWN'S,  because  his  (Mr. 
O'CoNOR's)  was  offered  in  committee  of  the  whole. 

The  PRESIDENT  said  that  it  was  first  in  or- 
der. 

Mr.  O'CONOR'S  proposition  relative  to  the  pro- 
viding of  president  judges  for  county  courts  with 
original  jurisdiction  was  then  read.  [It  has  al- 
ready been  published.] 

Mr.  HARRISON  said  that  he  had  listened  with 
profound  attention  to  the   debates  on  this   subject 
for   the  last    ten  days,  and  as  some  of  the   launeu 
(as  they  w;ere  called  here,)    had    participated    to 
some  extent  in  the  discussions,  he  too  should  ven- 
ture to  express  his  views  on  the  matter  now    ui>. 
ler  consideration.     But  in  doing   tins,  he  should 
not  be  inconsiderate — he   should  endeavor  not    to 
wade  into  "  deep  water,"  where  he  would*  he  lia- 
ale  to  be  overwhelmed,  but  should    confine  him- 
self to  such  topics,  as  a  lav  man  might  venture  to 
speak  upon  with  safety.     In    the    b'rst    place,    he 
bought  that  in  this  article,  a    brief  enumeration 
of  (he  courts  about  to  be  instituted  ou£ht   to    be 
refixed   at  its  head  ;  as  an  enumeiation  o:   tnem, 
with  their  proper,  and  distinctive  n/mes,  would 
>e  more  comprehensive,  to  the  people,  and  would 
serve  as  a  kind  of  index  to  the  whole,  and  enable. 
us  to  see  the  kind  and  number  ot  courts  we  were  to 
lave,  and  besides,  he  wished  too,  to   see    things 
called    by    their    right  names;  for,   with    all    due 
espect — with    all   the  profound   respect    he   felt 
or  the  judicial   committee,  he   must  s.iy  that  the 
erm  supreme  court,  as  applied  to  the  great  court 
vhich  they  had  erected,  was  a  tnisnon.er — it  was 
n  no   respect,  as  he   could    peiceive.  a   supreme 
:ourt.     It   was,  in  a'll    its   distinctive    features,  a 
;ircuit   courf ;  and    as  such  he   must  consider  it, 
nd  had  so    designated    it    in  the  heading    10  the 
ections  he  was  about  to  offer  for  the  consideration 
f  the  Convention.      Again,  although  he  would 
iOt  pretend  to  enter  into  any  discussion  with  the 
egal  gentlemen   of  the    house,  in    respect  to  the 
>eculiar  functions  to  be  di.-,chaiged    by  a  court  of 
ppeals  and   last   resort,   yet   as  it   respected   its 
tructure  and  formation,  he  had  somethn  g  to  say  ; 
:ir  he  had  learned  something   in  the  course  of  this 
ebate,  and  more   especially  from   the  remarks  of 
he  truly  able   gentleman    from    Herkimer,  (Mr. 
'  FFMAN)    made   yesterday.      From   his   obser- 
ations,  as    well    as  from  what  had    fallen    from 
ther  gentlemen,  it  was   evident  that    this  court 

most  emphatically  intended  to  be  a  court  of 
aw — a  court  for  the  expounding  of  law  alone, 
nd  for  the  correction  of  those   errors  in  which 
le  application  of  its  true  principles  had  failed, 
the  court  below,  from  whatever  cause..     Now, 
this  be  the  case,  and  we  all   know  that  it  is,  I 
sk  whether  it  is  not  a  mistake   to   believe   that 
lis  court  should  be  made  up  of  a  numerous  body, 
think  it  is,  and  a  great  mistake,  too  ;   for  num- 
ers  will  only  serve   to  retard   its  action,  and   to 
mpair,  to  a  great  degree,  in  my  opinion,  its  effi- 
ency.     It  has  been  said,  too,  that  this  court 


763 


>ln>uld  have  in  it  something  of  what  has  been 
•d  "  a  popul**  expression."  Now,  this,  too, 
I  think  is  a  mistake;  the  less  we  have  of  this,  in 
my  opinion,  the  better  will  our  laws  be  expound- 
ed and  administered.  It  is  clear  to  me,  sir,  that 
this  court  should  consist  of  a  small  body  of  men, 
but  that  it  ou°;ht  to  compose  the  highest  legal 
ability  in  the  State. 

A  debate  then  ensued  as  to  the  propriety  of  the 
amendment  being  proposed  to  this  section,  it  be- 
ing insisted  on  the  one  hand  that  it  could  not  de- 
cide whether  the  proposed  number  of  Supreme 
court  judges  would  be  required,  if  a  county  court 
was  provided  for  ;  and  on  the  other,  that  it  was 
better  to  proceed  in  regular  order  and  finish  up 
the  section;  when  the  matter  dropped. 

Mr.  HOFFMAN  briefly  addressed  ^the  conven- 
tion in  favor  of  county  courts,  with  original  and 
appellate  jurisdiction. 

Mr.  SIMMONS  also  regarded  a  county  court  as 
essential  in  some  form. 

Mr.  W.  W.  TAYLOR  followed,  indicating  an 
amendment  he  intended  to  offer  at  the  proper 
time,  designed  to  leave  it  to  the  legislature,  after 
a  trial  of  the  new  system)  to  confer  certain  juris- 
diction on  the  county  courts. 

Mr.  STRONG  gave  notice  of  a  motion  to  re- 
consider the  section  establishing  the  court  of  ap- 
peals. 

Adjourned  to  half-past  8  o'clock  to-morrow 
morning. 

THURSDAY,  (73<2  day,)  August  27. 

Prayer  by  the  Rev.  Mr.  STOVER. 

Mr.  A.  W.  YOUNG  presented  the  petition  of 
females  of  Covington,  Wyoming  county,  in  favor 
of  woman's  rights.  Referred  to  the  committee 
of  the  whole  having  in  charge  the  report  of  com- 
mittee number  eleven. 

Mr,  DUBOIS  presented  the  petition  of  inhabi- 
tants of  LaGrange,  Dutchess  county,  against  the 
establishment  of  free  schools.  Referred. 

The  PRESIDENT  laid  before  the  Convention 
a  report  from  the  clerk  of  the  seventh  chancery 
circuit  in  answer  to  a  resolution  of  the  Conven- 
tion. Laid  on  the  table. 

The  PRESIDENT  also  presented  a  communi- 
cation from  an  association  of  teachers  in  Conven- 
tion at  Utica,  against  any  diversion  of  the  litera- 
ture fund.  Referred  to  the  appropriate  committee 
of  the  whole. 

Mr.  CHAMBERLAIN  offered  the  following 
resolution  which  was  agreed  to  : — 

Rt  solved.  That  the  Compti oiler  report  to  this  Conven- 
tion a  statement  in  detail  .showing  the  amount  of  State 
stocks  outstanding  on  the  first  day  c>f  September,  1846  ;  lor 
what  purposes  it  was  issued,  and  when  payable  >  that  lor 
canal  purposes  ia  one  column  and  that  for  all  other  pur 
poses  in  another  column.  Also,  the  amount  af  funds  be- 
longing  to  the  State  available  and  unavailable,  separately 
sta'ed,  and  the  sources  ironi  which  it  was  derived,  and  the 
purposes  to  which  it  is  Applicable.  Also  his  opinion  when 
the  unavailable  portion  may  be  realized. 

THK  JUDICIARY  REPORT. 

Mr.  MANN  moved  a  reconsideration  of  the  vote 
taken  yesterday  on  his  amendment  to  the  third 
section  of  the  judiciary  report. 

There  were  no  objections  and  it  was  taken  up. 

The  amendment  was  to  add  the  words  "  subject 
to  such  restrictions  and  regulations  as  shall  from 
time  to  time  be  prescribed  by  law,"  to  the  sec- 
tion providing  for  a  supreme  court 


Mr.  WHITE  called  for  the  ayes  and  nays  and 
they  were  ordered. 

After  some  conversation, 

Mr.  BROWN  proposed  that  the  call  for  the 
ayes  and  noes  be  withdrawn,  by  unanimous  con- 
sent, and  that  the  reconsideration  be  agreed  to. 

This  was  assented  to  by  the  Convention  and 
the  reconsideration  agreed  to. 

Mr.  NICHOLAS  asked  and  obtained  unani- 
mous consent  to  change  the  record  of  his  vote  on 
agreeing  to  the  second  section  yesterday,  and  he 
voted  "  no." 

Mr.  O'CONOR  withdrew  his  proposition  of 
yesterday  for  a  county  court. 

Mr.  BROWN  then  offered  an  amendment  to 
the  third  section,  creating  a  supreme  court  in  the 
words  following:  "  Subject  to  such  additions, 
Imitations  and  regulations  as  may  be  provided 
By  law." 

Mr.  CHATFIELD  said  that  although  the  pro- 
position  in  form  united  the  two  jurisdictions  of 
law  and  equity,  yet  he  considered  that  it  allowed 
the  legislature,  if  they  chose,at  the  very  next  ses- 
sion to  separate  them  again.  He  desired  to  see 
no  possible  chance  for  this, 

Mr.  BROWN  said  if  these  consequences  would 
follow,  he  certainly  should  unite  in  voting  down 
this  section,  because  one  of  the  greatest  encour- 
agements he  had  in  coming  to  this  conclusion 
was  the  hope  of  uniting  these  two  jurisdictions. 
He  denied  that  the  proposition  left  any  power  to 
separate  them  in  the  legislature.  Mr.  B.  referred 
to  the  language  of  the  proposition  to  show  that 
this  was  so. 

Mr.  CHATFIELD  raised  a  point  of  oider,  as  to 
whether  the  amendment  could  be  received.  The 
proposition  was  to  strike  out  the  word  "  regula- 
tion," which  was  not  now  in  the  section,  having 
been  stricken  out  in  committee  of  the  whole. 

The  PRESIDENT  said  that  the  motion  was 
equivalent  to  a  restoiation  ut  the  section,  and 
which  was  in  order. 

Mr.  CHATFIELD  would  waive  his  point  of 
o'xler,  as  he  bad  no  desire  to  embarrass  the  propo- 
sition by  any  technicalities.  He  could  nut  under- 
stand what  objection  gentlemen  had  lo  the  section 
as  amended.  It  gave  tiie  Legislature  full  power 
to  make  all  needful  regulations,  without— as  he 
conceived  the  pending  proposition  did — giving  it 
power  at  any  moment  to  restore  the  separation  of 
these  I  wo  juris'.Mctions.  They  would  certainly 
have  the  power  to  regulate,  limit,  and  add  lo  its 
duties ;  and  what  more  power  could  possibly  be 
conferred  on  them? 

Mr.  RUGGLES  briefly  opposed  the  views  of 
Mr.  CHATFIELD,  and  urged  lhat  the  amendment 
of  the  gentleman  irom  Otsego  was  equally  liable 
to  the  objections  he  had  raised  to  the  pending  pro- 
position. Mr.  R.  then  went  on  to  sustain  the 
amendment  of  Mr.  BnowN.  There  was  nothing 
in  this  section  as  it  sio;)d,  to  limit  the  equity  ju. 
nsdiction  of  the  supreme  court.  He  desired  the 
amendment  to  prevail,  because  he  thought  there 
was  much  chancery  business  which  ought  to  be 
done  somewhere  else — for  instance,  in  the  surro- 
gate'? courls,  where  it  could  be  done  for  less  than 
half  the  expense  it  now  cost. 

Mr.  SIMMONS  was  opposed  to  the  amendment. 
He  could  never  agree  that  the  Legislature  should 
have  control  of  the  judiciary.  He  desired  to  see 


764 


the  three  departments  of  government,  indepen- 
dent of  each  other,  and  deriving  their  power  alone 
from  the  Constitution.  He  therefore  would  put 
no  clause  in  the  Constitution  which  would  allow 
the  Legislature  to  interfere  with  (he  judiciary. — 
He  was  s-atisfied  with  the  section  as  originally  re- 
ported by  the  committee,  or  as  amended,  on  the 
motion  of  the  gentleman  from  Otsego,  but  could 
not  for  the  reasons  he  had  slated,  give  to  the 
pending  proposition  his  assent. 

Mr.  VAN  SCHOONHOVEN  continued  the  de- 
bate in  favor  of  the  proposition  of  Mr,  BROWN. 

Mr,  BASCOM,  after  a  brief  explanation,  offered 
the  following  amendment: 

^  3.  There  shall  be  a  supreme  court  haying  general 
Common  law  jurisdiction,  and  such  special  equity  jurisdic- 
tion as  shall  be  enumerated  and  pi  escribed  by  law. 

Mr.  JORDAN  opposed  the  amendment  of  Mr. 
BASCOM.  He  desired  to  transfer  the  present  equi. 
ty  jurisdiction  to  the  Supreme  Court.  The  Su- 
preme Court  from  its  very  const  i'tution  had  juris- 
diction in  law,  -and  if  it  was  not  intended  to  trans- 
fer to  it  equity  jurisdiction  also,  it  would  be  un- 
necessary to  say  a  word  about  it  in  the  Constitu- 
tion. The  proposition  from  Mr.  BROWN,  in  his 
opinion,  fully  attained  this  point.  As  to  the  Le- 
gislature having  control  over  both  these  jurisdic- 
tions, he  insisted  that  they  alwa'ys  had  control 
over  it,  and  exercised  it  in  the  most  unsparing 
manner,  and  they  would  still  r?o  it,  if  they  were 
given  the  same  power  they  had  heretofore  over 
both  these  jurisdictions 

Mr.  HARRIS  urged  upon  the  Convention  the 
necessity  of  bringing  the  debate  to  a  close.  Ev- 
ery gentleman  was  prepared  to  vote,  and  why 
then  waste  more  time. 

Mr.  SIMMONS  was  very  much  obliged  to  some 
gentlemen  for  their  lectures,  but  when  he  wished 
to  go  to  school!  he  would  choose  his  own  instruc- 
tors. He  was  opposed  to  action  without  full  dis- 
cussion, and  he  should  avail  himself  of  his  law- 
ful rights  here  to  discuss,  without  wearying  the 
patience  of  the  committee.  Mr.  S.  went  on  to  re- 
ply to  Mr.  JORDAN,  and  to  reiterate  his  argu- 
ments on  the  pending  question. 

Mr.  HAWLEY  said  he  arose  for  the  purpose 
of  making  a  motion,  which  in  his  limited  experi- 
ence in  deliberative  assemblies,  he  had  not  be- 
fore made.  He  had  always  been  opposed  to  the 
application  of  the  previous  question  in  ordinary 
cases,  and  had  generally  voted  against  it.  He 
would  not  now  resort  to  it,  were  it  not  that  he  be- 
lieved that  the  progress  of  business  demanded  it. 
It  could  not  have  escaped  the  notice  of  the  con- 
vention, and  if  it  had,  it  certainly  could  not  have 
escaped  the  observation  of  the  people  of  the  state, 
that  there  is  a  class  of  members  here  who  can 
talk  from  January  until  January,  on  any  and  every 
question,  or  even  without  any  question,  legiti- 
mately under  consideration.  Indeed,  it  appears 
that  they  can  talk  longer  and  waste  more  time  in 
speaking  to  just  no  question  at  all,  than  they  are 
capable  of  doing,  when  confm«d  to  a  question 
really  at  issue.  He  believed  that  the  working 
portion  of  the  Convention  were  and  had  been  for 
some  time  past  ready  to  vote  on  this  question  and 
wished  no  more  time  wasted  in  useless  debate. — 
He  spok,e  as  he  felt  on  this  subject.  He  would 
not  follow  the  example  of  his  learned  friend  from 
Albany,  (Mr.  HARRIS,)  by  even  alluding  to  this 


abuse  in  complimentary  language.  Neither  did 
he  wish  to  treat  gentlemen  withadisrespect.  But 
when  members  arise  here  in  the  very  teeth  of  the 
decided  disapprobation  of  a  large  majority  of  the 
convention,  consume  its  valuable  time,  object  to 
being  "  lectured"  therefor  \  and  declare  that  they 
will  "  choose  their  own  school  masters,"  he  held 
it  to  be  treating  the  business  portion  of  this  con- 
vention with  marked  contempt.  Mr.  H.  said  he 
arose  to  make  a  motion  to  facilitate  the  business 
of  the  convention,  to  husband  the  small  portion 
of  time  still  left,  to  do  the  business  for  which  it 
assembled,  and  to  prevent  if  possible,  at  this  late 
day  of  the  session,  the  convention  from  stultify- 
ing itself  for  want  of  time  to  perform  its  duties. 
He  moved  the  previous-  question  on  the  section 
under  consideration. 

There  was  a  second;  ayes  62,  nays  noteounted, 
and  the  main  question  ordered. 

The  question  was  then  taken  on  the  amend- 
ment of  Mr.  BROWN,  and  it  was  rejected,  ayea 
38,  nays  68,  as  follows  r 

AYES-  -  Messrs.  Allen,  Angel,  Ayrault,  Baker,  Bergenx 
Brown,  Biaaidage,  Crooker,  Caudeback,  Dana,  Dorlon, 
Pubois,  Gardner.  Graham,  Grtene,  Hawley,  Hunter,  A. 
Huntingdon,  Hutchinson,  Jordan, Kemble,  Loamis,  Mann, 
Murphy,  Nellis,  Nicoll,  PatUrson,  Poweis,  Rhoades,  Bug- 
gies. Stephens,  Swackhamer,  J.  J.  Taylor,  W.  Taylor, 
Tuthill,  Van  Schoonhoven,  Warren,  W.  B.  Wright.— 38.. 

NOES— Messrs.  Archer,  F.  7.  Backus,  Bascom.BoW 
dish;  Bruce,  Bull,  Cambrel^ng,  D.  D.  Campbell,  R.  Camp- 
bell, jr.  Candee,  Chatneld,  Clark,  Clyde,  Conely,  "ookr 
Cornell,  Dantorth,  Dodd,  Flanders.  Forsyth,  Gebhard, 
Harris,  Harrison,  Hart,  HoS'naan,  Hotchkiss,  Hunt,  E- 
H«.ntingu>nf Hyde,  Kingsley,  Kirkland,  Miller,  Moiris, 
Nicholas,  O'Conor,  Parish,  Penniirian,  Porter,  President, 
Richmond,  Riker,  St.  John,  Sanlord,  Shaw,  Sheldon, 
Shepard,  Simmons  E.  Spencer,  W.  H.  Spencer,  Stanton, 
Stetson,  Stowf  Strong,  Taft,  Taggart,  Tallmf:dge,  Town' 
send,  Vache,  Ward,  Waterbory,  White,  Willaid,  W it- 
beck,  Wood,  A.  Wright,  Yawger,  Young,  Youngs— 68. 

The  question  v*  as  then  taken  on  Mr.  BASCOM'S 
amendment,  and  it  was  n  jected — ayes  10rna}s  100. 

Mr.  MANN'S  amendment,  heretofore  with- 
drawn, was  then  voted  upon  and  negatived— 43- 
voting  in  the  affirmative  and  54  in  the  negative. 

The  question  was  then  on  agreeing  with  the 
section  as  amended  in  committee  of  ihe  whole. 
It  was  agreed  lo,  ayes  96,  nays  19. 

Mr.  JORDAN  offered  the  following,  to  come  in 
as  an  additional  section  : 

{5  4.  The  Legislature  shall  hare  the  same  power  to  alter 
and  regulate  the  jurisdiction  in  law  and  in  equity  as  they 
have  heretofore  possessed. 

Mr.  J  briefly  urged  the  necessity  of  the  adop- 
tion of  a  provision  of  this  description. 

Mr.  CH  ATFIELD,  after  saying  that  he  regarded 
the  remarks  01  Mr.  HAWLEY,  upon  moving  the 
previous  question,  us  the  coolest  piece  of  impu- 
dence he  had  ever  listened  to,  moved  the  following 
addition  to  the  section  proposed  by  Mr.  JORJ>AN» 
not  because  he  deemed  it  necessary,  but  because 
other  gentlemen  did.  He  should  offer  il,  but 
should  vote  against  it ; 

But  proceedings  in  law  and  equity  shall  not  be  separated 
as  dktinct  jurisdictions,  to  be  administered  by  diflerent 
judges,  but  provisions  shall  be  made  by  law  for  blending 
them  hi  a  common  system  of  pleadings,  proofs  and  prac^ 
tice,  as  far  as  shall  be  consistent  with  the  ends  of  justice. 

Mr.  JORDAN,  rather  than  consume  time,  it 
the  Convention  was  determined  to  fix  an  iien  rule 
in  relation  to  this  matter,  withdrew  his  amend- 
ment. 

And  so  the  matter  dropped. 


765 


Mr.  O'CONOR  proposed  the  following  amend. 
ment,  to  come  in  as  sections  4  and  5  : 

!\  4.  There  shall  be  in  each  county  a  court  of  common 
pleas  and  a  court  of  general  sessions  of  the  peace;  and  one 
or  more  c  unity  judges  as  may  be  prescribed  by  law. 

§  6.  The  State  shall  be  divided  into  a  convenient  number 
of  districts,  subject  to  alteration  by  law,  as  the  public  good 
may  require;  for  each  of  which  districts  there  shall  be  one 
or  more  president  judges,  to  hold  their  offices  for  eight 
years,  who  shall  be  authori^edto  hold  their  county  courts 
in  the  several  counties  of  their  districts  as  may  be  pre- 
scribed by  law. 

Mr.  EASCOM  offered  the  following  amendment- 
.to  the  amendment: 

There  shall  be  a  court  of  common  pleas  with  such  pow 
ers  and  jurisdiction  as  shall  be  prescribed  by  law. 

One  of  the  judges  thereof  shall  be  elected  in  each  of  the 
counties  of  the  State  entitled  by  its  number  of  inhabitants 
to  a  member  of  Assembly. 

The  State  shall  be  divided  into  judicial  districts  so  as  to 
embrace  as  near  as  may  be,  five  of  the  counties  entitled  to 
elect  a  judge  of  said  court. 

There  shall  be  a  circuit  sessions  of  the  said  court  by  one 
of  the  judges  thereof  in  each  of  the  counties,  jf  a  judicial 
district  shall  seem  proper. 

There  shall  be  bane  sessions  of  the  said  court  by  four 
judges  thereof  in  the  several  counties  of  the  district,  as 


often  as  the  judges  thereof  shall  deem  proper 
An  appeal  shall  b 


be  from  the  decision  of  the  four  judges 
in  bane  to  the  courts  of  appeals;  but  the  party  appealing 
shall  recover  no  costs  upon  hit;  appeal. 

For  the  trial  and  decision  of  criminal  causes  there  shall 
be  associated  with  the  judge  of  the  common  pleas,  the  sur- 
rogate of  the  county  and  one  justice  of  the  peace  of  the 
county,  or  in  the  absence  of  the  surrogate,  two  justices  of 
thffepeac'e. 

The  Governor  may  detail  judges  for  judicial  service 
from  any  of  the  judicial  districts  to  any  other  district. 

Mr.  B.  explained  and  advocated  his  amendment. 

Mr:  KIRKLAND  offered  the  following  as  an 
amendment  to  Mr.  BASCOM'S  amendment: 

There  shall  in  each  county  be  a  county  court,  which 
shall  have  the  jurisdiction  now  existing  in  the  county 
courts,  subject  to  modification  and  alteration  by  law,  and 
also  such  equity  and  ether  jurisdiction  as  may  be  confer- 
red by  law. 

In  ihe  first  judicial  district,  to  be  composed  of  the  city 
and  county  of  New-York,  there  shall  be  four  district 
judges  of  the  county  court:  each  of  them  shall  alone 
hold  county  courts  in  said  districts  for  the  trial  and  dispo- 
sition of  civil  cases.  In  criminal  cases  two  of  the  Alder- 
men of  the  city  of  New-York  shall  be  associated  with  any 
one  of  said  judges. 

In  each  of  the  other  judicial  districts,  of  which  there 
shall  be  seven,  to  be  established  by  law,  there  s-hall  be  a 
district  judge  of  the  county  court:  he  shall  alone  hold 
courts  for  the  trial  and  disposition  of  civil  cases  in  each 
county  in  his  district.  In  criminal  cases,  the  two  county 
judges  shall  be  associated  with  him.  The  term  of  office  of 
said  judges  shall  be  eight  years. 

The  district  judges  of  one  district  may  hold  courts  in 
any  other  district,  and  shall  do  so  when  required  by  law: 
and  said  district  judges  may  be  authorized  by  law  to  hold 
circuit  courts. 

There  shall  in  each  county  be  a  first  judge  and  an  asso 
ciate  judge:  they  shall  be  elected  by  qualified  electors  of 
such  county,  and  shall  hold  their  offices  for  four  years. 

The  first  judge  shall  have  and  exercise  the  powers  and 
duties  ot  Surrogate  in  his  county.  Each  of  said  county 
judges  shall  also  have  and  exercise-  such  other  powers 
and  jurisdiction  as  rnay  be  conferred  by  law. 

Provision  shall  be  made  by  law  fur  cases  of  vacancy  in 
the  office  ol  first  and  associate  judges,  or  either  of  them, 
and  for  the  case  of  the  absence  or  inability  ot  them,  or  ei- 
ther of  them,  to  perform  any  of  their  official  duties. 

A  debate  then  arose  on  these  propositions, 
in  which  Messrs.  liASCOM,  RICHMOND, 
BROWN,  O'CONOR,  KIRKLAND,  MARVIN, 
LOOMIS,  STOW,  SIMMONS,  STRONG  and 
HOFFMAN,  participated. 

Mr.  STRONG  said  that  for  the  purpose  of  dis. 
embarrassing  the  question  of  the  establishment  oi 
county  courts  from  all  the  details  attached  to  it, 


le  would  ask  for  a  division  of  the  question  upon 
upon  the  amendment  of  Mr.  KIRKLAND,  so 
that  it  should  be  had  on  the  first  paragraph  alone. 

Mr.  CROOKER  sent  up  the  proposition  lor  a 
county  court  he  had  heretofore  submitted. 

Messrs.  MORRIS  and  SIMMONS  also  each 
Dresented  substitutes  for  the  proposition  already 
DfTered,  which  were  laid  on  the  table,  not  now 
Deing  in  order. 

Messrs.  JORDAN  and  W.  TAYLOR  laid  on 
the  table  amendments  to  Mr.  CROCKER'S  propo- 
sition. 

The  question  was  then  taken  upon  the  first  di- 
vision of  Mr..  KIRKLAND'S  proposition  and  it  was 
rejected — ayes  34,  noes  73,  as  follows  : — 

AYES— Messrs.  Ayrault,  Bergen,  Bull,  R.  Campbell,  jr. 
Candee,  Gardner,  Hunt,  E  Hunungton,  Hutchinsou,  Ken 
nedj ,  Kirkland,  Marvin,  Nicoll,  O'Conor,  Penniman,  Per. 
kins,  Porter,  Richmond,  Riker,  St.  John,  Sanford,  Shepard, 
W.  H.  Spencer,  Stow,  Strong,  Taggart,  Tallmadge,  Tilden, 
Vache,  White,  Young-31 

NA\S— Messrs.  Angel,  F.  F.  Backus,  Baker,  Bowdish, 
Brown,  Bruce,  Brundage,  Burr,  Carohreleng,  D.  D.  Camp- 
bell, Chatfield,  Clark,  Clyde,  Conely,Cook,Cornell,Crook- 
er,  Cuddeback,  Dana,  Danioith,  Dorlon,  Dubois,  Flanders, 
Forsvth,  Gebhard,  Graham,  Greene,  Harris,  Harrison, 
Hart,  Hawley.Hoft'rnan,  Hotchkiss,  Hunter,  A.  Hunting- 
ton,  Hyde.  Jordan,  Kemble,  Kingsley,  Loomis,  Miller, 
Morris,  Nellis,  Nicholas,  Parish,  Patterson,  Powers,  Presi- 
dent, Rhoades,  Kuggles,  Shaw,  Sheldon,  Simmons,  K. 
Spencer,  Stanton,  Stephen-,  Stetson,  Swackhnmer,  Taft, 
J.  J.  Taylor,  W.  Taylor,  Townsend,  Tuthill,  Van  Schoon- 
hoven,  Ward,  Warren,  Waterbury,  Willard.  Witbeck, 
Wood,  A.Wright,  Yawger, Youngs— 73. 

The  Convention  then  took  a  recess. 


AFTERNOON  SESSION. 

The  question  was  taken  on  Mr.  BASCOM'S  pro- 
position, by  sections,  and  it  was  rejected. 

The  question  was  then  taken  on  the  first  sec- 
tion of  Mr.  O'CONOR'S  proposition — "  That  there 
shall  be  in  each  county  a  Court  of  Common  Pleas 
and  General  Sessions." 

It  was  rejected,  ayes   35,  nays  57,   as  follows : 

AYES— Messrs.  Angel,  Ayrault,  Bergen,  Bruce,  Bull, 
R.  Campbell,  jr.,  Candee,  Cornell,  Crooker,  Gardner, 
Harrison,  Hotchkiss,  Hunt,  Hutchinson,  Kirkland,  Marvin, 
Maxwell,  Murphy,  Nicoll,  O'Conor,  Parish,  Porter,  Rich- 
mond, Riker,  St.  John,  Sanford,  W.  H.  Spencer,  Stow, 
Strong,  Taggart,  Tallmadge,  J.  J.  Taylor,  Van  Schoon- 
hoven,  Waterbury,  White— 35. 

NOES— Messrs.  F.  F.  Backus,  Baker,  Bascom,  Bowdish, 
Brown,  Brundage,  Burr,  Cambreleng,  D.  D.  Campbell, 
Chatfield,  Clark,  Clyde,  Cuddeback,  Dana.  Danlorth, 
Dodd,  Dorlon,  Dubois,  Flanders,  Forsyth,  Gebhard,  Gra- 
ham, Greene,  Hart,  Hoffman,  Hunter,  A.  Huntington,  Jor- 
dan, Kemble,  Kingsley,  Loomis,  Miller,  Morris,  Nellis, 
Nicholas,  Patterson.  Powers,  President,  Ruggles,  Salis- 
bury, Shaw,  E.  Spencer,  Stanton,  Stetson,  Swackhamer, 
W. "Taylor,  Townsend,  Tuthill,  Ward,  Warren,  Willard, 
Witbeck,  Wood,  W.  B.  Wright,  Yawyer,  Young,  Youngs 
—57. 

Mr.  O'CONOR  then  withdrew  the  remainder 
of  his  proposition. 

Mr.  BASCOM  gave  notice  that  he  should  move 
a  reconsideration  of  the  last  vote. 

The  question  was  then  on  Mr.  MORRIS'  amend- 
ment, as  follows : 

^  4.  There  shall  be  elected  in  each  county  of  this  State 
by  the  electors  thereof,  a  president  judge  of  county 
courts,  who  shall  perform  the  duties  and  exercise  the 
powers  of  Surrogate  for  such  county,  and  such  other  du- 
ties and  powers  as  shall  be  prescribed  by  law. 

There  shall  be  in  each  county  a  county  court,  to  be 
held  by  the  president  judge  and  the  justices  of  the  peace; 
any  two  of  the  justices  of  the  peace  with  the  president 
judge  may  hold  such  court. 

^5.  The  county  court  shall  have  appellate  jurisdiction 
over  the  proceedings  of  justices  of  the  peace,  and  over  the 


766 


proceedings  of  officers  of  the  towns  and  counties;  and 
may  try  persons  charged  with  offences,  the  punishment  of 
which  shall  not  exceed  imprisonment  in  State  prison  for 
ten  years,  and  may  have  such  other  and  further  powers 
and  jurisdiction  as  may  be  prescribed  by  law. 

Some  conversation  here  ensued  as  to  whether 
this  subject  should  not  be  passed  over  until  the 
Supreme  Court  was  definitely  disposed  of,  when 

Mr.  MORRIS  withdrew  his  amendment. 

Mr.  BASCOM  then  moved  to  pass  over  the^ 
13th  section.  The  motion  was  negatived. 

The  4th  section  was  then  read,  as  follows : 

§4.  The  State  shall  be  divided  into  eight  judicial  districts. 
of  which  the  city  of  New  York  shall  be  one.  'The  others 
to  be  bounded  by  county  lines;  and  to  be  -compact  and 
equal  in  population  as  nearly  as  may  be.  There  shall  be 
four  justices  of  the  supreme  court  for  each  district,  and  as 
many  more  in  the  district  compo.~ed  of  the  city  of  New 
York  as  may  from  time  to  time  be  authoriz.  d  by  law,  but 
not  to  exceed  the  number  ot  justices  in  the  other  districts  in 
proportion  to  their  population.  They  shall  be  classified  so 
that  one  of  the  justices  ot  esch  district  shall  go  out  of  of- 
fice at  the  end  of  every  two  years.  After  the  expiration 
of  their  terms  under  such  classification,  the  term  of  theii 
office  shall  be  eight  years. 

Mr.  RICHMOND  moved  to  strike  out  "  Tour" 
in  the  fourth  line,  and  insert  tk  two.''  Sixteen 
justices  of  the  Supreme  Court  would  be  amply 
sufficient,  he  believed,  to  perform  all  I  he  duties 
of  the  Supreme  Court  in  connection  with  the 
county  courts. 

The  motion  was  negatived. 

Mr.  MARVIN  offered  the  following  substitute 
lor  the  entire  section: — 

There  shall  be  a  supreme  court.  The  state  shall  be  di- 
vided into  four  districts;  each  district  shall  be  divided  into 
three  circuits.  There  shall  be  four  justices  of  the  supreme 
court  in  e^ch  district.  They  shall  be  classified  so  that  the 
term  of  office  of  one  of  the  justices  in  each  district  shall  ex- 
pire  at  the  end  of  every  two  years.  After  the  expiration 
of  their  terms  under  such  classification,  the  teim  of  their 
office  shall  be  eitiht  years.  The  chief  justice  and  the  said 
four  justices,  or  only  three  of  them,  may  hold  general 
terms  of  the  said  court  in  the  said  district,  and  any  of 
whom  may  hold  special  terms.  The  chief  justice  or  any 
one  of  the  justices  of  the  supreme  courts  may  hold 
circuit  courts,  and  preside  at  the  courts  of  oyer  and  tenri- 
ner  in  any  county  in  the  state. 

Motions  to  amend  the  original  section  taking 
precedence, 

Mr.  MANN  moved  to  amend  the  original  sec- 
tion by  st i  iking  o'lttiom  the  word  '*  law,"  in  the 
7th  line,  to  the  end  of  the  sentence. 

This  question  was  discussed  by  Messrs  MANN 
SHEPAKD,  LOOMIS,  TILDEN,  STEPHENS, 
BROWN  and  PATTERSON. 

A  discussion  then  arose  as  to  what  means  §hould 
be  devised  to  provide  for  an  increase  of  judicial 
force  in  proportion  to  the  increase  of  judicial  bu- 
siness in  the  city  of  New  York,  in  which  Messrs 
NICOLL,  RUGGL.ES,  STETSON,  HARRIS,  VAN 
SCHOONHOVEN,  CHATFIELD,  HOFFMAN  and  WA 
TERBURY  participated,  when  without  taking  any 
question,  the  Convention  adjourned. 


FRIDAY,  (14th  day}  August  28. 

Prayer  by  the  Rev.  Mr.  STOVER. 

Mr.  GEBHARD  presented  a  petition  from  01- 
ney  Briggs,  Esperance,  Schoharie  co.,  against 
laws  for  the  observation  of  the  Sabbath  and  for  the 
prevention  of  the  use  of  religious  books  in  the 
common  schools,  &c. 

Mr.  O'CONOR  moved  to  lay  the  petition  on  the 
table. 

Mr.   CROOKER  hoped  the  motion  would  not 


prevail,  but  that  it  would  receive  a  respectful  re- 
ference, notwithstanding  the  absurdity  of  some  of 
its  notions. 

Mr.  BRUCE  asked  for  the  ayes  and  nays,  and 
they  were  ordered. 

The  motion  prevailed — ayes  74,  nays  19. 

Mr.  MURPHY  presented  four  memorials  from 
the  county  of  Kings  against  electing  judges  by  the 
people. 

The  PRESIDENT  laid  before  the  Convention 
a  report  from  the  assistant  register  of  the  1st  cir- 
cuit, in  relation  to  the  sale  of  infants'  estates,  &c. 
Referred  to  the  committee  of  five. 

The  PRESIDENT  also  presented  a  report  from 
the  register  in  chancery  of  the  6th  circuit  of  the 
securities  and  monies  in  his  hands  Laid  on  the 
able  for  the  present. 

Mr.  STETSON  gave  notice  that  he  should 
move  to  reconsider  the  vote  on  the  second  section 
of  the  judiciary  report,  and  offer  an  amendment. 
To  strike  out  "  four,"  in  the  third  line,  and  insert 
"  three  ;"  and  after  "  serve,"  in  the  fourth  line, 
add,  "and  two  from  the  class  having  four  years 
to  serve." 

Mr.  SWACKHAMER  moved  a  reconsideration 
of  the  vote  adopting  the  3d  section. 

Mr.  RICHMOND,  the  same  motion  with  re- 
gard to  his  amendment  proposed  yesterday  to  the 
4th  section. 

Mr.  KIRKLAND,  the  same  with  regard  to  his 
proposition  as  to  the  4th  section. 

These  motions  lie  on  the  table  by  consent. 

Mr.  DANFORTH  had  leave  of  absence  for  one 
week. 

REPORT  ON  THE  JUDICIARY 

The  committee  then  resumed  the  consideration 
of  the  reports  on  the  judiciary. 

The  question  being  on  the  amendment  to  the 
amendment,  pending  at  the  adjournment  last  even- 
ing, it  was  lost. 

The  amendment  then  coming  up,  Mr.  MANN 
called  for  the  yeas  and  nays,  and  they  were  or- 
dered. 

Mr.  JORDAN  said  the  judiciary  committee  had 
the  impression  that  the  local  courts  of  New  York 
were  not  touched  by  this  article,  but  were  to  re- 
main as  they  are.  If  there  was  any  doubt  about 
it,  when  the  section  was  reached  which  was  sup- 
posed to  abolish  it,  it  could  be  provided  for  by  a 
special  exception.  With  those  courts  and  the 
four  supreme  judges  he  thought  the  city  of  New 
York  would  have  sufficient  judicial  force. 

Mr.  TILDEN  enquired  if  the  gentleman  be- 
lieved that  this  force  would  be  sufficient  for  the 
increasing  business  of  the  city  of  New  York. 

Mr.  JORDAN  thought  it  would.  He  had  ob- 
served that  the  courts  in  New  York  now  were 
adequate  to  the  business.  Those  courts  were  not 
blocked  up,  and  he  thought  that  with  the  addi- 
tion of  a  judge  to  take  the  testimony  in  equity  ca- 
ses instead  of  examiners  in  chancery,  the  force 
would  be  quite  sufficient.  This  was  his  opinion, 
but  if  the  delegation  from  New  York  were  not 
satisfied  as  to  that,  let  them  bring  forward  a  plan, 
and  he  would  yield  to  it.  There  were  the  second 
and  third  districts,  convenient  to  New  York,  and  if 
there  was  a  lack  of  judicial  force,  could  be 
called  in  as  the  exigencies  of  the  case  might  re- 
quire. 

Mr.  TILDEN  was  surprised  at  the  opinion  first 


767 


expressed  by  Mr.  JORDAN  ;  he  might  have  mis- 
understood the  gentleman,  but  he  certainly  sup- 
posed his  opinion  to  be  the  contrary.  As  to  the 
blocking  up  of  business,  there  were  now,  he  be- 
lieved, more  causes  on  the  calendar  of  the  circuit 
court  than  had  been  disposed  of  for  the  last  three 
years. 

Mr.  JORDAN  had  no  reference  in  what  he  said 
to  the  circuit  court,  he  referred  to  the  local  courts. 
He  certainly  supposed  an  increase  of  force  was 
required  in  the  circuit,  and  this  he  thought  was 
provided  for. 

Mr.  SHEPARD  said  that  to  his  certain  knowl- 
edge, the  local  courts  were  several  terms  in  ar- 
rear. 

Mr.  TILDEN  resumed,  arguing  the  inadequate- 
ness  of  the  judicial  force  of  the  city  of  New  York, 
and  the  failure  of  the  provisions  of  the  report,  to 
meet  and  provide  for  the  inconvience. 

The  debate  v\  as  continued  by  Messrs.  MORRIS, 
VAN  SCHOONHOVEN,  LOOMIS,  and  O'CoNOR,  when 

Mr.  HAWLEYsaid  it  was  with  reluctance  thar 
he  arose  to  make  a  motion  similar  to  that  which 
he  felt  compelled  to  make  yesterday,  and  for  Hie 
same  reasons  which  he  then  gave  tor  so  doing. — 
He  did  not  intend  that  his  remarks  yesterday  rela- 
tive to  the  waste  of  time  in  debate,  should  have 
any  particular  personal  application.  They  were 
general  in  their  nature,  and  applied  to  a  certain 
portion  ot  the  Convention  as  distinguished  from  a 
certain  other  portion.  Yet  he  was  perfectly  wil- 
ling i hut  any  gentleman,  who  thought  the  coal 
would  fit  him.  should  put  it  on.  Soon  alter  he 
moved  ihr  previous  question  yesterday,  he  was 
called  fiom  'iis  seat  for  a  few  moments  to  trans 
act  busit.Hss  with  a  gentleman  from  another  State, 
who  was  about  to  leave  in  the  cars.  On  his  re- 
turn, he  was  informed  that  the  gentleman  from 
Otsego  (Mr.  CHATFIELD,)  had  made  a  personal 
attack  upon  him.  He  regretted  that  he  was  ab 
sent  when  his  action  and  motives  had  been  thus 
assailed.  He  could  assure  the  gentleman  from 
O  -rgo,  that  in  his  remarks  yesterday,  he  did  not 
assume  that  he  (Mr.  H.)  belonged  to  the  class 
\vhich  he  had  designated  as  working  members  — 
He  had  not  regarded  it  as  necessary  in  order  to  be 
considered  a  working  member  by  his  constituents, 
to  waste  the  time  of  the  House  by  rising  frequent- 
ly in  his  place  to  announce  to  the  Convention  and 
to  the  people  "that  he  was  constantly  in  his  seat, 
attending  to  his  duties  here"  as  the  gentleman 
from  Otsego  had  been  careful  to  do.  He  fiankU 
admitted  the  gentleman  from  Otsego  had  been  in- 
dustrious from  the  very  commencement  of  the 
session,  and  had  kept  his  constituents  advised  of 
the  fact  by  announcing  every  few  days,  in  debate, 
that  "  he  had  been  almost  constantly  in  his  seal 
since  the  Convention  assembled — and  that  he  had 
seldom  been  seen  outside  the  bar  of  the  House." 
The  gentleman  from  Otsego  yesterday  complain- 
ed that  he  (Mr  H.)  had  done  nothing  to  eniitle 
him  to  be  considered  a  working  memoer — had 
brought  forward  no  new  proposition — hwd  made 
no  amendments,  &,e.  Mr.  H  confessed  that  this 
was  true  to  some  extent.  He  had  not,  like  the 
gentleman  from  Otsego  been  in  the  h.-b;'  of  bring 
ing  forward  a  great  many  propositions  every  day, 
which  weregenerally  mere  mailers  of  IrgisUtivede. 
tail, and  not  proper  subjects  to  be  embiaced  in  a  con- 
stitution :  thereby  lumbering  up  our  way,  blocking 


th'c  wheels,  and  retarding  the  progress  of  this  body. 
Had  he  presented  alabored  report  to  this  House,  and 
had  he,  alter  that  leport  had  been  consider"  d, 
and  amended  by  the  Convention,  been  constrain- 
ed to  say,  as  the  gentleman  from  Otsego  had  said 
on  this  floor,  "  that  there  was  scarcely  a  shred  of 
the  original  left — not  even  enough  for  him  to 
swear  by,"  he  might  perhaps  be  considered  by 
that  gentleman  as  one  of  the  working  members. 
But  he  did  not  make  any  such  pretensions,  he 
would  not  arrogate  so  much  to  himself.  He  felt 
bound  in  justice  to  the  gentleman  from  Otsego  to 
say,  that  he  did  not  intend  yesterday  to  charge 
him  with  making  long  speeches.  Unlike  some 
others  who  seemed  to  be  in  pursuit  of  a  single 
idea  for  hours  without  being  able  at  last  to  reach 
it,  that  gentleman  generally  made  his  point, 
spoke  directly  to  it,  (sometimes  stopping  even 
short  of  it)  then  rung  it  through  all  the  changes 
of  which  his  fertile  imagination  was  capable,  and 
closed  by  ringing  the  party  bell,  and  taking  his 
seat.  Yet  on  a  vote,  he  was  generally  defeated. 
On  the  question  "  shall  the  main  question  be  now 
put,"  taken  yesterday,  he  (Mr.  H.)  believed  that 
the  gentleman  from  Otsego  was  found  standing 
"  solitary  and  alone." 

Mr.  CHATFIELD— No,  one  gentleman  voted 
with  me. 

Mr.  HAWLEY — Very  well;  some  working 
man,  I  suppose  !  Mr.  H.  said  he  did  not  feel  dis- 
posed to  question  the  motives  of  any  gentleman 
in  regard  to  this  abuse — but  it  is  too  well  known 
that  a  greal  deal  of  the  time  of  this  convention  is 
wasted  in  useless  debate — an  end  to  which  it  ap- 
peared impossible  to  find,  without  a  resort  to  the 
previous  question.  Hoping  that  the  gentleman 
from  Otsego  would  appropriate  to  himself  no  more 
of  his  remarks  than  he  is  entitled  to,  he  moved 
the  previous  question  on  the  amendment  proposed 
by  the  gentleman  from  New  York. 

The  question  being  on  the  amendment  of  Mr. 
MANN,  it  was  rejected — ayes  29,  nays  77 — as  fol- 
lows : 

A  YF.S— Messrs.  Allen,  Bergen,  Brundage,  Oonely,  Cor- 
nell, Harris,  Harriscn,  Hunt,  Hyt'e,  Jones,  Kemble,  Ken- 
nedy; Mann,  Murphy,  Nicoll,  O'Conor,  Hiker,  Buggies, 
Sanford,  Shepard,  Stephens,  Swackhamer,  Tallmadge.  \V. 
Taylor,  Tiiden,  Townsend,  Vache,  Van  Schoonhoven, 
White— 29. 

NAYS— Messrs.  Archer,  Ayrault,  F.  F.  Backus,  Baker, 
Bascom,  Bowdish,  Brown,  Bruce,  Bull,  Burr,  Cambn  leng, 
D.  D.  Campbell,  R.  Campbell,  jr.  Candee.  Chamberlain, 
Chnttield,  •  lark,  Clyde, Cook,  Crooker,  Cuddeback,  Dana, 
Dod.!,  Dorlon,  Dubois,  Flandeis,  Korsyth,  Gebhard  Gra- 
ham, Hart,  Hawley,  Hoflman,  Hotchkiss,  Hunter,  A.Huut- 
inglon,  E.  Huiuington,  Hutchinson,Jordan,  KernaiijKings- 
ley,  Kirklan.i,  Loomis,  McNeil,  Marvin,  Miller,  Morris, 
Nellis,  Nicholas,  Parish,  Patterson,  Penniman,  Porter, 
Powers,  llhoades,  Salisbury,  Shaw,  Simmons,  E.  Spencer, 
W.  H.  Spencer,  Stanton,  Stftson,  Stow,  Strong,  Taft,  J.  J. 
Taj  lor,.  Warren.  Wsterbury,  Willed,  Witbeck,  Wood, 
Worden,  A.  Wright,  W.  B.  Wright,  Yawger,  Young, 
Youngs — 77. 

Mr.  LOOMIS  proposed  to  modify  the  section — 
not  to  change  the  meaning,  but  to  make  it  a  little 
more  certain — so  as  to  make  it  read  : — "  But  not 
to  exceed  in  the  whole  such  number  in  proportion 
rn  its  population  as  shall  be  in  conformity  with 
the  number  of  such  judges  in  the  residue  of  the 
stale,  in  proportion  to  its  population." 

Mr  HAHRiS-said  that  on  tiie  last  question  he 
voted  in  the  affirmative  Afiei  the  best  reflection 
he  had  given  to  the  subject,  he  could  not  but  in. 
dulge,some  fears  that  the  judicial  force  may  be 


768 


insufficient.  The  equity  business  in  that  city  was 
very  large,  and  he  believed  it  would  require  three 
judges  for  that  alone,  leaving  but  one  to  take  charge 
of  the  law  courts.  It  may  be  that  with  the  local 
courts,  there  will  be  a  sufficient  force,  but  he 
feared  not.  To  prevent  any  evils  that  would 
thereby  ensue,  he  desired  to  propose  the  following 
amendment,  in  lieu  of  that  proposed  by  Mr.  LOO- 
MIS.  He  was  willing  that  the  city  of  New  York 
should  have  two  additional  judges,  if  the  Legisla- 
ture should  see  fit  to  give  them.  Hence  he  mov- 
ed an  amendment  to  produce  that  result,  by  insert- 
ing "  not  exceeding  two"  after  the  word  "law.' 

Mr.  TILDEN  thought  this  would  place  the  city 
in  a  worse  condition  than  the  present.  This 
amendment  might  prevent  the  increase  that  un- 
der this  Constitution,  New  York  would  be  en- 
titled to  by  her  increase  of  population.  It  would 
give  us  six  judges,  but  it  would  make  that  num- 
ber perpetual.  For  these  reasons  he  should  be 
compelled  to  vote  against  it. 

Mr.  HARRIS  said  if  the  gentlemen  from  N.  Y 
did  not  like  that  amendment  he  would  with- 
draw it.  He  desired  to  satisfy  them. 

Mr.  CONELY  hoped  it  would  not  be  with- 
drawn. 

Mr.  STEPHENS  asked  if  the  gentleman  from 
Herkimer  was  intending  to  improve  the  condi- 
tion of  New  York  by  this  amendment. 

Mr.  LOOMIS  designed  to  place  the  minimum 
on  the  basis  of  population. 

Mr.  STEPHENS  contended  that  the  basis 
should  be  on  the  increase  of  business  and  not  of 
population. 

Mr.  BROWN  desired  to  do  justice  to  the  city 
of  New  York,  if  he  knew  what  they  required. — 
He  was  willing  to  give  them  six  judges,  and  to 
provide  for  the  continuance  of  the  present  local 
courts  or  he  was  willing  to  vote  for  an  amend- 
ment. 

Mr.  NICOLL  renewed  the  amendment  of  the 
gentleman  trom  Albany. 

Mr.  BROWN  further  explained  the  amendment 
and  expressed  his  willingness  to  vote  for  it. 

Mr.  NICOLL  thought  that  while  this  would 
give  to  the  city  of  New  York  such  additional 
force,  it  would  not  conflict  with  any  other  section 
of  the  Constitution,  in  relation  to  the  re-organi- 
zation of  districts.  He  urged  the  necessity  of  in- 
creasing the  force  of  the  judiciary  in  New  York, 
and  said  if  he  could  not  get  a  whole  loaf  he  would 
take  a  half  one. 

Mr.  STRONG  said  there  appeared  to  be  a  great 
solicitude  as  to  whether  the  members  from  New 
York  were  agreed  on  a  subject.  If  they  were,  it 
would  be  the  first  time  he  had  even  known  of  a  N. 
York  delegation  thus  agreeing.  He  considered 
the  amendment  wrong,  for  the  reason  that  New 
York  should  have  no  more  of  the  State  court  than 
other  districts.  He  considered  it  of  importance 
to  the  country,  that  some  of  the  courts  should  oc- 
casionally go  to  New  York  to  hold  the  courts 
there.  As  to  the  blocking  up  of  business  com- 
plained of  in  the  courts  of  New  York,  he  insist- 
ed that  if  the  lawyers  and  the  courts  in  that  city 
would  work  as  arduously  as  they  did  in  the  coun- 
try, much  of  that  evil  would  be  obviated. 

Mr.  SHEPARD  repelled  the  charge  that  the 
judges  in  the  city  of  New  York  were  not  diligent 
and  industrious  in  the  discharge  of  their  duties. 


The  greater  part  of  litigation  arose  from  matter 
abroad,  and  was  not  chargeable  to  the  city  of  New 
York.  He  expressed  his  willingness  to  vote  for 
the  amendment  of  the  gentleman  from  Albany. 

Mr.  LOOMIS  again  briefly  urged  his  amend- 
ment. 

-  Mr.  VAN  SCHOONHOVEN  hoped  this  amend- 
ment would  be  voted  down.  He  would  not  fix  a 
limit  in  the  constitution  which  would  operate 
perpetually.  If  an  additional  force  was  needed, 
of  the  Supreme  Court,  he  further  insisted,  it 
should  be  created  by  the  State.  Is  could  not  be 
known  as  a  local  court  in  any  form. 

The  question  being  taken  on  the  amendment  of 
Mr.  HARRIS,  as  renewed  by  Mr.  NICOLL,  it  was 
voted  down. 

The  question  was  then  taken  on  Mr.  LOOMIS' 
amendment,  and  it  was  adopted1 — ayes  49,  noes 

Mr.  VAN  SCHOONHOVEN  moved  to  strike 
out  in  the  6th  and  7th  lines,  "  in  the  district  com- 
posed of  the  city  of  New  York,"  also  to  strike  out 
the  words  introduced  by  the  amendment  of  Mr. 
LOOMIS.  He  wished  to  be  understood  as  desiring 
that  the  increase  should  be  made  by  the  state  at 
large,  and  riot  by  any  particular  district. 

Mr.  JORDAN  moved  to  add,  "  not  to  exceed 
one  in  each  judicial  district." 

Mr.  VAN  SCHOONHOVKN  assented  to  this  as 
a  modificaiion  ot  his  motion.  So  his  proposition 
was  that  the  clause  should  read  as  follows: 

"  There  shall  be  four  justices  of  the  supreme  court  for 
each  district,  and  as  many  more,  not  to  exceed  one  in  each  « 
judicial  district,  as  may  from  time  to  time  be  authorized  by 
law."  . 

Mr.  RICHMOND  called  the  ayes  and  nays  on 
this  amendment. 

Mr.  SIMMONS  said  that  this  was  an  amend- 
ment in  which  hn  concurred,  and  went  on  briefly 
to  support  i  . 

The  debate  was  continued  bv  Messrs.  HOFF- 
MAN, VAN  SCHOONHOVEN,  LOOMIS,  and 
MORRIS,  when 

l\lr.  STETSON  moved  the  previous  question  on 
ihe  pending  amendment,  b^ing  that  ot  Mr.  VAN 
SCHOONHOVEN,  as  amended  on  the  motion  of 
Mr.  JORDAN,  and  there  was  a  second,  and  the 
main  question  ordered. 

The  amendment  was  rejected — ayes  14,  nays 
89 — as  follows  : 

AYES— Messrs.  Allen.  Archer,  F.  F.  Backus,  Bruce, 
Conely,  Cornell,  Dana,  Gardner,  Greene,  Hunt,  Simmons, 
Townsend,  Van  Schoonhoven,  Warren— 14. 

NOES— Messrs.  Angel,  Ayrault,  Baker,  Bascom,  Ber- 
gen, Bowdish,  Brown,  Brundage,  Bull,  Burr,  Cambrelengf, 
D.  D.  Campbell,  Candee,  Chatfield,  Clark,  Clyde,  Cook, 
Crooker,  Cuddeback,  Dodd,  Dorlon,  Dubois,  Flanders, Geb- 
hard,  Graham,  Harris,  Harrison,  Hart,  Hawley,  Hoffman, 
Hotchkiss,  Hunter,  A.  Huntington,  E.  Huntington,  Hutch, 
inson,  Hyde,  Jordan,  Kemble,  Kennedy,  Kernan,  Kingsley, 
Kn-kland,  Loomis,  Mann,  Marvin,  Maxwell,  Miller,  Mor- 
ris, Nellis,  Nicholas,  Nicoll,  O'Conor,  Parish,  Patterson, 
Penniman,  Porter,  Powers,  President,  Richmond,  Riker, 
Ruggles,  St.John,  Salisbury,  Sanford,  Shaw,  Sheldon,  She- 
pard,  E.  Spencer,  W  H.  Spencer,  Stanton,  Stetson,  Stow, 
Strong,  Taft,  J.  J.  Taylor,  W.  Taylor,  Tilden,  Vache,  Wa- 
terbury,  White,  Willard,  Wood,  Worden,  A.Wright,  W. 
B.  Wright,  Yawger,  Young,  Youngs — 99. 

On  motion  oi  Mr.  BROWN  the  woid  "  in"  was 
substituted  in  place  of  "lor,"  after  "court,"  in 
the  51  h  line. 

Mr.  TILDEN  moved  to  amend  by  adding  to  the 
section  as  follows: 


769 


And  it  shall  be  the  duty  of  the  chief  judge  of  the  court 
of  appeals,  as  often  as  necessnry,  to  assign  justices  of  the 
supreme  court  to  the  several  districts,  as  nearly  as  may  be 
in  proportion  to  the  judicial  business  of  such  districts,  and 
when  occasion  shall  require  to  assign  special  duties  to  par- 
ticular judges. 

Mr.  BAKER  asked  for  the  previous  question, 
and  it  was  seconded — ayes  48,  nays  26,  and  the 
«nain  question  ordered. 

The  amendment  was  rejected — ayes  44,  nays  60 
— as  follows : 

AYES — Messrs.  Allen.  Bergen,  Brown,  Brundag«,Cam- 
breleng,  Conely,  Cornell,  Cuddeback,  Dorlon,  Dubois, 
Harrison,  Hart,"  Hunter,  A.  Huntington,  Jones,  Kemble, 
Kennedy,  Kingstey,  Mann,  Marvin,  Maxwell,  Miller, 
Murphy,  Nellis,  Nicoll.  O'Conor,  Parish,  Porter,  Powers, 
President,  Ruggles,  Sanford,  Shaw,  She^ard,  £.  Spencer, 
Stanton,  Stephens,  Stet-on,  W.  Taylor,  Tilden.Townsend, 
Vache  Waterbury,  White— 44. 

NAYS -Messrs.  Angel,  Archer,  Ayrault,  Baker,  Bas- 
com.  Bowdish,  Bruce,  Bull,  Burr,  D.  D.  Campbell,  Candee, 
Chatfield,  Clark,  Clyde,  Cook,  Crooker,  Dana,  Flanders, 
Forsyth,  Gardner,  Gebhard  Graham,  Greene,  Harris, 
Hawley,  Hoffman,  Hotchkiss,  E.  Huntington,  Hutchi'ison, 
Hyde,  Jordan,  Kernan,  Kirkland,  Looinis,  Morris,  Nicho- 
las, Patterson,  Penniman.  Richmond,  Rik«»r,  St.  John  Sal. 
isbury,  Sheldon,  Simmons,  W.  H.  Spencer,  Stow,  Strong. 
Taft,  Tallmadge,  J.  J.  Taylor,  Van  Schoonhoven,  Willard, 
Wood,  Woiden,  A.  Wright,  W.  B.  Wiight,  Yawger, 
Young,  Youngs — 60. 

Mr.  BERGEN  moved  to  amend  by  making  the 
term  of  office  sixteen  years,  classified  so  that  one 
in  each  district  should  go  out  every  four  years. 

Mr.  BASCOM  gave  notice  of  a  motion  to  recon- 
sider the  motion  of  the  gentleman  from  Otsego. 

Without  taking  the  question,  the  Convention 
took  a  recess. 

AFTERNOON  SESSION. 

The  question  being  taken  on  the  amendment  of 
Mr.  BERGEN,  it  was  rejected. 

Mr.  BROWN  moved  to  amend  so  that  two  of  the 
justices  should  go  out  of  office  every  four  years, 

The  amendment  was  lost — ayes  33,  nays  44,  as 
follows : 

AYES— Messrs.  Bergen,  Bowdish,  Brown,  Cambreleng, 
R.  Campbell,  jr  ,  Chatfield,  Clark,  Clyde,  Cornell,  Crocker, 
Cuddeback,  Dana,  Dorlon, Graham, Greene,  Harrison.Hart, 
A.  Huntington,  Hyde,  Kemble,  Kernan,  Maxwell,  Miller, 
Murphy,  Nellis,  Nicholas,  Nicoll,  O'Conor,  Patterson,  Sal- 
isbury, Simmons,  E.  Spencer,  Stephens,  Townsend,  White 
— 33. 

NOES— Messrs.  Allen.  Archer,  Ayrault,  F  F.  Backus, 
Baker,  Bascom,  Bull,  Burr,  D.  D.  Campbell,  Candee,  Cook, 
Dubois,  Gardner,  Hawley,  Hoflman,  Hotchkiss,  Hunt. 
Hunter,  Loomis,  Marvin,  Morris,  Parish,  Perkins,  Presi- 
<tent,  Richmond,  Riker,  St.  John,  Sheldon,  W.  H.  Sp«ncer, 
Stetson.  Stow,  Strong,  Tallmadge,  J.  J.  Taylor,  Tilden, 
Ward,  Willard,  Witbeck,  Wood,  Yawger,  Youag.Youngs 

Mr.  CHATFIELD  offered  his  proposition  in 
order  to  test  the  principle  whether  these  judges 
should  be  re-eligible  or  not.  He  would  never 
consent  to  elect  a  judge  who  should  use  his  office 
for  the  sake  of  a  re-election.  And  it  was  with  a 
view  to  prevent  that  state  of  things,  that  he  moved 
to  add  at  the  end  of  the  section,  "  and  shall  not 
be  eligible  to  a  re-election." 

Mr.  HARRISON  moved  to  add  to  the  amend- 
ment, "  for  two  years  after  the  expiration  of  his 
term  of  office." 

Mr.  CROOKER  remarked  that  this  would  be 
worse  than  putting  the  word  "  native"  in. 

Mr.  STETSON  said  that  any  judge  who  should 
thus  exercise  his  office  would  carry  with  him  his 
own  punishment  He  would  not  vote  for  ostra- 
cism. 


Mr.  STOW  should  prefer  a  longer  time.  He 
proposed  to  amend  so  as  to  make  the  term  of  a 
judge  twelve  years,  classified  to  go  out  one  in 
three  years,  and  would  make  judges  ineligible  for 
a  certain  period  after  their  term  has  expired. 

Mr.  CHATFIELD  accepted  this  amendment 

Mr.  BROWN  enquired  if  the  gentleman  from 
Erie  was  in  favor  of  the  elective  system, 

Mr.  STOW  said  he  was  not. 

Mr.  BROWN  said  this  was  one  way  of  making 
the  elective  system  so  distasteful  to  those  in  favor 
of  it  that  they  could  not  vote  for  it.  The  princi- 
ple could  not  be  maintained  in  any  other  way  than 
to  make  the  term  so  long  that  the  judges  would 
not  desire  a  re-election. 

Mr.  RICHMOND  said  sheriffs  were  now  inel- 
igible, and  no  misery  hid  resulted  to  mankind 
thereby. 

Mr.  BROWN  said  that  as  to  the  matter  of  a 
judge  making  efforts  for  re-election,  he  certainly 
would  object  to  improper  efforts.  But  he  would 
like  him  to  make  proper  efforts  by  a  faithful  dis- 
charge of  his  duties  for  are-election.  Besides  he 
wished  the  judge  to  feel  responsible  for  the  dis- 
charge of  his  duty. 

Mr.  DANA  agreed  perfectly  with  th«  gentle- 
man from  Orange.  As  to  the  matter  of  sheriff, 
there  were  very  good  reasons  why  he  should  be 
held  accountable  and  guarded  against  such  influ- 
ences. We  already  elected  some  four  thousand 
judicial  officers — justices  of  the  peace,  and  he  had 
never  heard  of  an  instance  where  they  had  pros- 
tituted their  offices  for  are-election.  He  thought 
it  would  be  safe  therefore  to  trust  the  highest  ju- 
dicial offic€rsi. 

Mr.  CHATFIELD  had  known  of  instances 
where  justices  of  the  peace  had  gone  into  an 
election,  and  he  apprehended  that  the  gentleman 
must  be  one  of  of  the  few  exceptions  to  it. — 
He  believed  that  whoever  was  elected  to  the  su- 
preme court  bench,  would  still  be  a  man 
and  subject  to  the  influences  of  human  nature, — 
He  would  offer  them  no  motive  to  enter  the  po- 
litical arena.  And  he  would  guard  against  it.  It 
was  said  of  the  old  supreme  court  that  they  were 
prominent  in  politics,  and  political  movements, 
and  if  these  men  had  held  their  office  by  election, 
he  asked  if  they  would  not  have  acted  partywise 
and  with  a  view  to  secure  the  votes  of  his  party. 
He  would  even  prevent  his  election  to  any  other 
public  office  whatever,  in  order  to  make  all  sure. 
Twelve  years  he  thought  was  sufficiently  long 
enough  for  the  term  and  he  would  not  make  him 
ineligible  unless  he  had  served  his  full  term. 

Mr.  W.  TAYLOR  was  satisfied  with  the  term 
of  eight  years  as  fixed  by  the  committee.  He 
was  opposed  to  making  the  officer  ineligible  to  a 
re-election.  He  could  see  no  good  reason  why 
the  people  should  be  deprived  of  the  services  of 
a  faithful  judge  if  they  desired  him  for  a  second 
term.  He  would  rather  elect  such  a  man  than 
one  who  had  had  no  experience.  The  argument 
that  a  judge  would  prostitute  his  office  for  polit- 
ical purposes  he  regarded  as  scarcely  worth  notice. 
Such  a  course  of  conduct  would  inevitably  de- 
stroy him.  Nor  did  he  care  what  might  be  the 
age  of  a  man,  if  he  was  capable  and  competent, 
he  was  willing  to  vote  for  him.  If  the  people 
chose  to  select  such  a  man  it  was  their  right. — 

71 


770 


Ke  was  therefore  entirely  opposed  to  the  amend- 
ment. 

Mr.  STOW  was  not  in  favor  of  the  election  of 
judges,  and  he  challenged  gentlemen  to  produce 
the  slightest  evidence  that  the  people  had  called 
for  such  a  thing.  He  was  willing  to  meet  the 
gentleman  on  that  subject  before  the  intelligent 
free  holders  of  Erie  county.  The  great  funda- 
mental objection  to  this  principle  of  election  was, 
that  it  claimed  the  right  of  the  majority  to  be  re- 
presented on  the  bench— whereas  it  was  the  law 
only  that  should  be  represented.  The  extension 
of  the  term  he  confessed,  commended  the  election 
system  more  to  his  favor.  So  did  the  exclusion 
of  re-eligibility,  to  a  greater  degree.  He  trusted 
this  last  great  security  would  be  retained  in  the 
constitution.  "Lead  us  not  into  temptation," 
was  as  applicable  to  the  bench  as  any  where  else. 

Mr.  PATTERSON  moved  to  strike  out  the  two 
last  words  "or  re-appointment." 

Mr.  HUNT  said  this,  like  all  good  rules,  would 
work  both  ways.  If  he  went  to  a  shoemaker  or 
hatter  and  ordered  an  article,  he  will  not  say  to 
you  do  this  and  I  will  never  give  you  another  job. 

Mr.  NICOLL  thought  the  effect  would  be  to 
also  limit  the  range  of  selection.  Gentlemen 
would  not  leave  their  professions  for  so  short  a 
time,  destroying,  as  the  acceptance  of  the  office 
would,  all  his  business.  He  would  offer  every 
inducement  to  the  judge  to  discharge  his  duties 
faithfully. 

Mr.  TALLMADGE  expressed  himself  in  favor 
of  the  term,  as  reported  by  the  committee.  He 
would  also  make  the  officer  in  no  wise  liable  to 
temptation  in  the  matter  of  prostituting  his  sta- 
tion to  political  objects. 

Mr.  RICHMOND,  in  reply  to  Mr.  NICOLL, 
thought  there  was  no  fear  of  this  office  going  a 
begging.  There  were  plenty  of  competent  men 
who  would  be  glad  to  take  it. 

Messrs.  A.  W.  YOUNG  and  BASCOM  further 
discussed  this  proposition. 

Mr.  PATTERSON  called  for  the  ayes  and  noes 
on  his  amendment.  He  desired  the  question  to 
be  decided  as  to  whether  these  judges  should  be 
elected  or  appointed. 

Mr.  NICOLL  urged  that  the  great  question 
should  not  be  brought  in  here  now,  and  thus  has- 
tily disposed  of. 

Mr.  LOOMIS  deprecated  this  piling  up  of  ques- 
tions one  on  the  other.  He  was  opposed  to  in- 
creasing the  term.  Eight  years  was  the  utmost  he 
would  extend  it.  This  matter  of  preventing  the 
re-election  of  a  judge  originated  in  a  lurking  dis- 
trust of  his  popular  election  and  he  should  oppose 
it  on  that  ground.  Mr.  L.  urged  that  for  a  judge 
to  prostitute  his  station  for  a  political  object  would 
be  to  destroy  him.  The  people  would  never  con- 
sent to  elect  him. 

Mr.  KIRKLAND  considered  this  amendment 
as  seeking  to  get  an  indirect  expression  from  this 
Convention  on  this  important  question.  He 
thought  also  this  to  be  an  improper  place  to 
bring  it  up.  It  would  come  up  properly  and  di- 
rectly on  the  12th  section. 

Mr.  TILDEN  :  In  what  manner  does  this  a- 
mendment  decide  any  question. 

Mr.  KIRKLAND  apprehended  it  would  settle 
nothing,  and  he  hoped  therefore,  it  would  be  vo- 
ted down  unanimously 


Mr.  STOW  modified  his  amendment  by  insert- 
ing" re-eligible"  in  the  place  of  "  eligible  to  a 
re-election  or  re-appointment." 

The  question  was  then  on  the  amendment  of 
Mr.  CHATFIELD.  Mr.  C.  called  for  a  division  of 
the  question  to  be  taken  on  striking  out.  The 
Convention  refused  to  extend  the  term  to  twelve 
years,  ayes  27,  noes  TO,  as  follows  : 

AYES— Messrs.  Bergen,  Bruce,  Brundage,  D.  D.  Camp- 
bell. Cariclee,  ChatneliJ,  Clark,  Cook,  Cornell,  Gardner, 
Hart,  Jordan,  Kemble,  Ktnnedy,  Kirkland  Marvin,  Mr.r- 
phy,  Nicholas,  O'Conor,  Parish,  Perkins,  Richmoud,  Ri- 
ker,  Ruggles,  Simmons  Stow,  J.  J.  Taylor— 27. 

NAYS-  Messrs.  Allen,  Angel,  Archer,  Ayrault,  F.  F. 
Backus,  H.  Backus,  Baker,  ^ascoin,  Bowdish.  Brayton, 
Brown,  Bull,  Burr,  Cambreleng,  Chamberlain,  Clyde, 
Conelv,  Crocker,  Cuddeback,  Dana,  Dorlon,  Dubois, 
Flanders,  Graham,  Green,  Harrison,  Hawiey,  Hoffman, 
Hotchki's,  Hunt,  Hunter,A.Huntington,hmcliinson,Hyde, 
Jones,  Kernan.  Kingsley,  Loomis,  McNeil,  Maxwell,  Mil- 
ler, Morris,  Nellis,  Nicholas,  Nicoll,  Patterson,  ljenniman, 
Powers,  President,  St.  John,  Salisbury,  Sanlord,  SUaw, 
Sheldon,  Shepard,  E.  Spencer,  W.  H.  S,  eiicer,  Stanton, 
Stephens,  Stetson,  Strong,  Ta:t,  Tallmadge.  W.  Taylor, 
Tilden,  Townsend,Vache,Ward,  \V  hite.VV  illard,  V>  i.beck', 
Wood,  W.  B.  Wright,  Yawger,  Young,  \oungs— 76. 

Tne  remainder  of  the  amendment,  the  "one 
term  principle,"  was  lusi,  a^es  '21,  noes  y5,  as  fol- 
lows : 

AYES— Messrs.  Bergen,  Brayton,  Bruce,  Bull,  D.  D. 
Campbell,  Candee,  Chatfield,  Clark,  Clyde,  Cook,  Cornel), 
Gardner,  Kennedy,  Murphy,  O'Conor,  Richmond,  Sails- 
bury,  Simmons,  Stow,  J.  J.  Taylor,  Vache— 21. 

NOES— Messrs.  Allen,  Angel,  Archer,  Ayrault,  F.  F. 
Backus,  Baker,  Ba^coin,  Bowdish,  Brown,  Brundage, 
Burr,  C. '•.  Cambreleng,  R.  Campbell,  jr  ,  Chiiinberlani, 
Conely,  Crooker,  Cuddeback,  Dana,  DorJon,  Dubois,  J.  R, 
Flanders,  Graham,  Gn-ene,  Harris.  Harrison,  Hawiey, 
Hoffman,  Hotchkiss,  Hunt,  Hunter,  A  Hunting, 
ton,  Hutchinson,  Hyde,  Jones,  Jordan,  Kembie,  Kernan, 
Kingsley  Kirkland,  LoomU,  Mann,  McNei  ,  .v.arvin,  Max- 
well, Miller,  Morris,  Nellis,  Nicholas,  Nicoll.  Par.sh,  Pat. 
terson,  Penniman,  Perkins,  Powers,  President,  Rhoades, 
Kiker,  Ruggles,  St.  John,  Sanlord.  Shaw,  Sheldon  frht-p- 
ard.E  Spencer,  W  H.  Spencer,  Stanton,  Stepluns,  Stet- 
son, Strong,  Taft,  Tallmad^e,  W.  Taylor,  Tilden,  Towns- 
end,  Ward,  White,  Willard,  Witbeck,  Wood,  U'orueu,  A. 
Wright,  W.  B,  Wright,  Yawger,  Young.  Youngs— 85. 

Mr.  BASCOM  moved  to  amend  so  as  i<>  reduce 
the  term  from  eitiht  years  to  lour,  ir  wns rejected 

Mr.  MARVIN  offered  an  amendment  which  in* 
said  would  be  sufficiently  understood  without  ;i 
lengthened  explanation.  His  object  was  «>  make 
room  for  a  capable,  efficient  court  oi  common 
pleas,  by  reducing  the  number  of  justices  to  six- 
teen, the  four  districts  to  be  divided  into  circuits. 
He  desired  by  this  amendment  to  prepare  I  he  w,  ;iy 
for  county  courts  on  a  proper  basis.  And  (he  fate 
of  this  amendment  would  settle  the  question  of 
county  courts. 

Mr  MARVIN'S  substitute  was  lost,  ayes  36, 
noes  63,  as  follows  : 

AYES— Messrs.  Ayrault, [Bergen,  Bull,  Candee,  Cham- 
bprlain.  Cornell,  Gardner,  Hotchkiss,  Hunt,  Hutchinson, 
Kennedy,  Kirk  land,  vlann.Marvin,  Murphy,  Nicoll  O'oonor, 
Parish,  Perkins,  Richmond,  Riker,  St.  John.  Salisbury, 
Sanlord,  Shaw,  Shepard,  Simmons,  W.  H.  Spencer,  M  .n- 
ton,  Stow,  Tallmadge,  Tilden,  Vache,  White,  Worden, 
Young  — 36. 

NAYS — Messrs.  Allen,  F.  F.  Backus,  Baker,  Bascom, 
Bovvdish,  Brayton,  Brown,  Brumiage.  Burr,  Cambreleng, 
R.  Campbell,  jr.  Chaifield,  Clark.  Clyde  Condy,  Cook, 
Crooker,  Cuudeback,  Dana,  Durlon,  Dubois,  Flunlerg, 
Harris,  Harrison,  Hart,  Hawiey,  Hoffman,  Hunter,  A. 
Huntington,  Hyde,  Jordan,  Kemble,  Keman.  Kingsley, 
Loomis,  McNict.  \laxwi-ll,  Miih-r,  Morris,  Ntllis.  Mcho. 
las,  Patterson.  Powers,  President,  Rusrg.es,  Sheldon,  E. 
Spencer  Stephens,  Stetson,  Strong,  Taft.  J.  J  Taylor, 
W.  Taylor,  Townsend,  Ward,  Willard,  Witbeck,  Wood, 
A  Wright,  W.E.  -Wright,  Yawger,  Youngs-  68. 


771 


Mr,  BAKER  laid. on  the  t<«ble  a   motion   to  re- 

C'Misuier  ill*-"  vole  just  taken. 

Mr  KiRKLAND  moved  to  substitute  the  fol. 
lowing  in  IUMI  of  the  section: 

$  4.  The  State  shall  be  divided  into  six  judicial  districts, 
.^nominated  the  first,  second,  third,  fourth,  fifth  and 
Bixth  judicial  districts,  of  which  the  city  of  New  York 
shall  form  the  first.  There  shall  be  a  Superior  Court  in 
each  of  the  said  districts,  which  shall  have  jurisdiction  in 
nil  ma; tors  of  law  and  equity  within  the  State,  and  such  su- 
pervisory and  other  power  over  inferior  tribunals  and  ot- 
h'.-ers  wrhm  its  district  as  now  exists  in  the  Supreme 
Court,  subject  to  the  appellate  jurisdiction  of  the  Supreme 
Court  of  Appeals.  It  shall  in  the  first  district  be  composed 
pi  six  judges,  and  in  each  of  the  other  districts  of  four 
judges.  One-  of  said  judges  in  each  of  said  districts  shall 
be  commissioned  as  chief  justice  of  the  court  in  his  district 
Each  of  said  judges  shall,  during  his  continuance  m  office, 
reside  in  his  district. 

^  b.  Die  judges  of  the  Court  of  Appeals,  and  of  the 
Superior  Court,  may  hold  courts  in  any  district,  under 
such  regulations  as'may  be  prescribed  by  law.  Each  ol 
said  judges  shnll  j  os.-ess  ihe  power  now  possessed  by  any 
judjje  of  the  Supreme  Court  or  the  Chancellor  at  Cham 
bers,  subject  to  regulation  or  modification  by  law.  Cir 
cuit  Courts  may  be  held  by  any  one  of  said  judges;  and 
general  terms  ol  the  Superior  t  ouit  in  any  district  by  any 
three  of  the-n;  and  special  terms  by  any  one  of  them  for  the 
hearing  and  disposition  of  matters  usually  heard  at  special 
te  ms 

Courts  of  Oyer  and  Terminer  may  be  held  by  any  one 
of  said  judges  with  whom  in  said  court  shalf  be  associated 
the  tv.'o  county  judges,   except  in  the  city  and  county  of 
V   rK,  where  two  Aldermen  of  said  city  shall  be  as- 
sociated with  such  judge  in  said  court  ol  oyerand  terminer. 

Pi  o vision  shall  be  made  by  law  lor  the  transler  of  causes 
from  one  district  to  another,  and  lor  the  change  of  venue 
to  a  count >  in  the  same  or  another  district,  as  the  ends  ol 
usuce  nifty  require. 

^  6.  Thejudgt-s  of  the  Supreme  Court  of  Appeals  and  of 
the  Superior  Courts  shall  hold  their  offices  for  ten  years. 

$7.  </n>es,  bo:li  .11  law  and  iqu.ty,  shall  be  tried  at  said 
Ciicuit  courts,  an.;  without  a  jury ,  w,  hcneve'  thepaitiesin 
interest  in  a  suit,  a.;  i  the  j  >dge  holding  the  cir,-u,t.  absent 
thereto.  Provision  shall  ulso  be  ma,  e  by  law  for  cases  in 
law  or  equity  not  propeily  triable  at  a  Circuit  Court. 
Provision  siiail  also  be  nr.de  by  law  forthe  performance  of 
the  dutie^  heretofore  perfosmed  by  masteis  in  cbancery. 

S  Laws  :naj  be  passed  to  diminish  the  number  of  the 
j'ldg-  s  of  til-?  Supreme  Court,  court  of  appeals,  and  of  the 
judges  of  the  superior  cour  ,  and  of  tbe  district  j;idgesof 
the  o»iim\  court  in  any  dis.riot,  if  ti.e  number  hereby  au- 
thorized Shall  be  um.e^e*sary.  Laws  may  be  passed  to  in- 
crease tru*  number  of  tin- judges  of  the  supreme  cour;  of 
u;.'pra:s.  und  the  judges  of  tbe  Miperiorcouit,  and  the  said 
tlmric  ju'lgf-s  m  ai.y  clis:rict  whenevtr  andas  often  as  the 
public  nit  iv-ts  don. and.  Any  suchadi.i  i  n.ai  judge  shull 
D«  elected  or  apj .ointed  as  shall  be  pi  escribed  by  the  law 
autho.ising  rucii  a.ldit  oual  judge.  '1  he  districts  in  this 
article  m.-.ritio-  ed  may  be  altered  by  law  whenever  anrl  as 
oft.  n  as  the  public  iutere«t  demand,  No  law  authorising 
A  diminution  or  increase  in  the  number  of  judges  or  the 
alteration  of  any  di.-trict  shall  be  passed  wiihout  the 
votes  ol  two-  hiids  ol  the  members  eUcUdto  each  branch 
ot  the  legislature,  and  no  such  law  shall  afiect  any  judge 
then  in  oflice. 

The  proposition  w.is  rej<  c'e.d. 

Mr.  KiKKLAMD  laid  on  tiie  table  a  motion  foi 
a  reconsid. Million. 

Mr  WOKDKN  enquired  vvhar  provision  was 
intended  for  ihe  appointment  of  a  Chief  Justice? 

Mi.  HAGGLES  said  it  was  in  tended,  to  put  none 
in  the  (J.)u>M<, 11 .0,,;  the  Legislnture  \\ere  to  be 
left  to  designate  the  judge  to  preside  at  the  term. 

Mr.  WOROEN  said  tint  he  did  not  know  how 
the  records  ol  our  courts  could  be  made  evidence 
in  the  couits  of  the  United  States,  without  the 
cenificaie  of  a  Chief  Justice,  under  the  law  of 
Congress. 

Mr.  RUGGLES  thought  there  was  no  difficulty 
about,  it  all.  There  would  be  a  presiding  jud^e, 
and  he  would  be  the  presiding  magistrate  within 
the  act  of  Congress.  It  there  was  any  doubt  about 


it,  the  Legislature  could  remedy  if. 

A  Her  some  tun  her  con  vet  sat  ion  between  Messrs. 
WORDEN,  RUGGLES,  and  BROWN,  the  matter 
dropped 

Mr.  PATTERSON  said  that  by  the  section, 
New  York  was  to  be  continued  as  long  as  the 
constitution  should  last,  a  separate  and  distinct 
district,  and  he  could  therefore  see  no  objection 
to  allowing  the  city  to  elect  judges  in  proportion 
to  her  population, 

Mr.  BROWN  explained  that  it  was  the  twenty 
shilling  fee  which  the  judge  received  for  every 
cause  on  his  calendar,  that  prevented  it  from  be- 
inir  cleared  off. 

Mr.  BRUCE  said  he  had  no  doubt  that  the  mo- 
tion  just  made  would  prevail  and  this  section  of 
the  report  would  be  adopted  by  a  large  majority 
of  the  Convention.  But  the  section  as  it  now 
stood  could  not  receive  his  support  for  several 
reasons,  but  as  the  hour  of  adjournment  had  so 
nearly  arrived,  it  would  prevent  his  giving  at 
length  all  the  reasons  that  induced  him  to  to  give 
his  Vote  in  the  negative.  By  the  section  under 
consideration,  the  state  was  to  be  divided  into 
eight  judicial  districts,  of  which  the  city  and 
county  of  New- York  was  to  be  one,  and  each 
district  to  have  four  judges,  who  would  probably 
have  an  annual  salary  from  the  State.  This  sec- 
tion gives  to  the  city  of  New  Yc  r<  4  judges,  and 
"  as  many  more  as  may  from  time  to  time  be 
authorised  by  law"  True,  there  was  an  appa- 
rent restriction,  that  made  an  increase  of  popu- 
lation  in  that  district  over  any  other  requisite,  in 
order  to  such  an  increase  of  judicial  force.  But 
he  did  not  believe  that  the  population  of  a  dis- 
trict was  a  correct  criterion  in  all  cases,  from 
which  to  estimate  the  amount  of  judicial  busi- 
ness. By  reference  to  the  documents  upon  our 
tables,  we  find,  for  instance,  the  county  of  Jeffer- 
son, with  a  population  of  62,000,  has  had  two 
terms  of  the  Circuit  Court  the  last  year,  and  nine 
days  session  ;  the  county  of  Kings,  with  a  popu- 
lation of  61,000,  had  three  terms  and  thirty  days 
session;  the  county  of  Lewis,  with  a  population 
of  19,125,  two  terms  and  five  days  session  ;  while 
the  county  of  Madison,  with  a  population  of  40,- 
000,  had  two  terms  and  six  days  session.  He  had 
collected  these  statistics  within  the  last  few 
minutes,  and  he  had  no  doubt  many  more  show- 
ing the  like  inequality,  could  be  mention- 
ed. We  had  been  told  by  the  gentleman 
from  New  York  that  ihe  circuit  courts  in 
that  city  were  unable  to  dispose  of  the  busuuss 
before  them.  Why  was  it  ?  'ihe  true  re^on  hat 
been  given,  and  is  not  denied  even  by  the  delrgj- 
lion  from  that  city.  It  is  found  in  ihe  fact  that 
the  courts  there  hold  their  sessions  day  after  c;ay, 
from  10  o'clock,  A.  M  ,  to  2i  or  3  o'clock,  P.  M., 
without  clearing  their  calendar,  while  ihe  courts 
in  the  country  worked  all  day,  and  disposed  of 
their  business.  Mr.  B.  said  he  nad  just  heard  one 
ot  the  most  able  circuit  judges  in  the  state,  who 
was  a  working  judge,  (and  had  been  somewhat 
acquainted  with  New  York  business  in  those 
courts,)  who  said  there  WHS  no  more  difficulty  in 
keeping  down  the  calendar  and  disposing  ot  the 
causes,  in  the  county  of  New  York,  than  there  was 
in  the  county  of  One  da.  Why,  then,  allow  a  ne- 
cesfeity  for  increase  ot  the  judges,  first,  to  exist, 
in  the  city  ot  New  York  ;  and  there  have  six 


772 


judges,  to  be  paid  by  the  state,  while  other  dis- 
tricts have  but  lour?  Why  give  to  that  city  ad- 
vantages over  the  other  patts  of  the  state  ?  Enough 
has  been  done  already,  in  legislation,  and  in  this 
Convention,  of  special  favoritism.  He  would  ask 
of  that  city  "  nothing  but  what  is  right,  and  sub. 
mit  to  nothing-  wrong."  There  were  several  other 
reasons  why  he  should  vote  against  this  section — 
but  as  the  hour  was  late  he  would  not  detain  the 
Convention  with  arry  further  remarks. 

Mr.  JORDAN  said  tbat  New  Yorfe  had,  under 
the  ratio,  a  less  representation  on  the  bench  than 
the  other  districts  would  have  according  to  po- 
pulation. 

The  vote  on  the  fourth  section  as  am  ended?  was 
then  taken,  and  it  was  agreed  to,-  ayes  70,  noes 
33,  as  fallows '. 

AYES— Messrs.  Allen,  Angel,  Archer,  F.  F.  Backus, 
Baker,  Bascorn,  Bowdish,  Brayton,  Brown,  Brundage, 
Burr,  Cambreleng,  R.  Campbell,  jr.,  Chatfield,  Clark, 
Clyde,  Cook,  Crocker,  Cuddeback,  Dana,  Dorlon,  Dubois, 
Flanders,  Grah«m,  Greene,  Harris,  Harrison,  Hart,  Haw- 
ley,  Hoffman,  Hotchkiss,  Hunter,  A.  HuntingUm,  Hyde, 
Jordan,  Kemble,  Kerrran,  Kingsley,  Loomis,  Mann,  Mc- 
Neil, Maxwell,  Morris,.  Nellis,  Nicholas  Patterson,  Pow- 
ers, President,  Rhoades,  Hiker,  Rubles,  Salisbury,  Shaw, 
E,  Spencer,  Stanton,  Stephens,  S'etson,  Strong,  Tait,  J.  J. 
Taylor,  W.  Taylor.  Townsend,  Ward,  VVjliaid,  Witbeck, 
Wood,  A.  Wright,  W.  B.  Wright,.  Yawger,  Youngs— 70. 

NAYS— Messrs.  Ayrault,  Bergen,  Bruce,  Bullj,  Candee, 
Chamberlain,  Cornell,  Hunt,  E  Huntwvgton,  Jones,  Ken- 
nedy, Kirkland,  Marvin,  Murphy,  Nicoil,  O'Conor,  Par- 
isb,  Penniman,  Perkins,  Richmond,  St.  John,  Sanford, 
Sheldon,  Shepard,  Simmons,  W.  H.  Spencer,  Stow,  Tali- 
madge?  Tilden,  Vachse,  White,  Worden,  Young — 33. 

The  Convention  then  adjourned  to  halt  past  8 
to-morrow  morning. 

SATURDAY,  (16th  day}  August  29. 
Prayer  by  the  Rev.  Dr.  SPRAGXJE. 
Mr.  WHITE  offered  the  following  resolution : 
"  Resolved,  That  the  Convection  will  meet  this  after, 
noon  at  the  usual  hour.'* 

After  some  conversation  Mr,  White  withdrew 
the  resolution. 

Mr.  MURPHY  called  up  his  resolution  provid- 
ing that  after  the  report  on  finances  was-  disposed 
of,  that  the  convention  would  then  consider  the 
reports  in  relation  to  corporations  in  the  order  in 
which  they  were  presented. 

The  motion  was  sustained  by  Mr.  LOOMIS  and 
opposed  by  Messrs.  CROOKEK,  SIMMONS  and 
KIHKLAND,  who  moved  to  lay  the  motion  on  the 
table. 

The  motion  prevailed—ayes  49?  noes  39. 
FUTURE  AMENDMENTS  TO  THE  CONSTITUTION. 

Mr,  MARVIN,  from  the  committee  on  future 
amendments  to  the  constitution,  reported  as  fol- 
lows : 

ART1CE . 

{51.  Any  amendment  to  this  Constitution  may  he  pro- 
posed in  the  Sen-tie  or  Asserobl\  j  and  ifttie  same  shall  be 
agreed  to  by  a  majority  o  the  members  elected  to  each  of  the 
tv>'o  houses,  such  proposed  amendment  or  amendments, 
shall  be  entered  on  their  journals,  with  the  yeas  and  nays 
taken  thereon,  and  reierred  to  ih»-  legislature  then  next  to 
be  chosen^  and  shall  be  published  ior  t:iree  months  previ- 
ous to  the.  time  of  making  such  choice ;  and  if,  in  the  legis- 
lature next  chosen  as  aforesaid,  such  proposed  amend- 
ment or  amendments,  shall  be  agreed  to  by  two-thirds  of 
all  the  members  elected  to  each  nouse,  then  it  shall  be  the 
duty  of  the  legislature  to  submit  such  proposed  amend- 
ment or  amendments  to  the  people,  in  such  manner  and  at 
such  times  as  the  legislature  shall  prescribe;  and  if  the 
people  shall  approve  and  ratify  such  amendment  or  amend 
ments  by  a  majority  of  the  electors  qualified  to  vote  for 
members  of  the  legislature  voting  thereon,  such  amend. 


ment  or  amendments  shall  become  part  of  the  CorstituE 
lion, 

§  2.  At  the  general  electron  to  be  held  in  the  year  J866, 
and  in  each  twentieth  yt-ar  thereafter,  and  also  at  such 
time  as  the  legislature  may  by  law  provide,  the  question, 
"  Shall  there  be  a  Convention  to  revise  the  Constitution 
and  amend  the  same?"  shall  be  decided  by  the  electors 
qualified  to  vote  for  members  of  the  legislature:  and  in- 
case a  majority  of  the  electors  so  qualified,  voting'at  such 
election,  shall  decide  in  favor  of  a  Convention  for  such 
purposes,  the  legislature,  at  ita  next  session,  shall  provide 
by  law  for  the  election  of  Delegates  to  such  Convention. 
By  order  of  the  Committee, 

R.  P.  MARVIN.  Ch'n. 

The  report  was  referred  to  the  committee  of 
the  whole  and  ordered  printed. 

REPORT  ON  THE  JUDICIARY". 

Mr.  MANN  offered  the  following  additional 
section : 

M  The  legislature  shall  have  the  same  power  to  alter  and 
regulate  the  jurisdiction  and  proceedings  in  law  and  equi- 
ty as  they  have  heretofore  possessed." 

Mr.  SIMMONS  expressed  his  willingness  to  see 
the  amendment  adopted, 

Mr.  BASCOM  briefly  supported  the  amend- 
ment. 

After  a  brief  debate,  in  which  Messrs.  SIMMONS, 
BASCOM,  SWACKHAMER,  BROWN  end  MANN 
participated,  as  to  whether  the  language  was  suf- 
ficiently definite  to  attain  the  purpose,  it  being 
feared  that  it  would  give  the  legislature  power  to- 
separate  the  jurisdiction,  to  which  all  objected, 

Mr.  MANN  modified  his  amendment  so  as  to- ' 
read: 

"The  legislature  shall  have  the  same  power  to  alter  and 
regulate  the  jurisdiction  and  proceedings  in  law  and 
equity  as  they  have  heretofore  possessed,  but  proceedings 
in  law  and  equity  shall  not  be  separated  as  distinct  juris- 
dictions to  be  administered  by  different  judges." 

The  debate  was  continued  by  Messrs.  HOFF- 
MAN, RUGGLES,  CHATFIELD,  STETSON, 
LOOMIS  and  JORDAN,  when 

Mr.  RUGGLES  moved  to  amend  the  amend- 
ment by  inserting  after  the  word  "equity,"  the 
words  "in  the  supreme  court,"  and  at  the  "end  of 
the  amendment  the  words,  "in  that  court." 

Mr.  MANN  accepted  the  amendment. 

Mr.  SIMMONS  would  have  no  objection  to  the 
amendment  if  the  word  "alter"  was  left  out.  Mr, 
S.  went  on  at  length  to  explain  his  views  on  the 
subject. 

Mr.  BROWN  then  proposed  the  following 
amendment: 

§  .  The  powers,  jurisdiction  and  proceedings  of  the  su- 
preme court,  shall  be  subject  to  such  additions,  limitations 
and  regulations  as  may  be  prescribed  by  law." 

Mr.  SIMMONS  and  CHATFIELD  objected  to 
the  amendment  as  being  precisely  the  one  be- 
fore voted  down. 

Mr.  KIRKLAND  expressed  at  some  length  his 
fears  that  the  amendments  tended  to  enable  the 
legislature  to  interfere  with  the  remedies  of  the 
court  of  chancery. 

Mr.  JORDAN  enquired  if  the  gentleman  sup- 
posed that  his  amendment  conferred  power  upon 
the  legislature  to  take  away  the  jurisdiction  of 
the  court  of  chancery. 

Mr.  KIRKLAND  supposed  it  would. 

Mr.  JORDAN  asked  if  the  gentleman  supposed 
that  we  had  been  living  70  years  under  such  a 
state  of  things. 

Mr.  KIRKLAND— not  for  orie  day. 

Mr.  JORDAN  called  the  attention  to  the  lan- 
guage of  the  amendment  of 


773 


Mr.  MANN,  which  conferred  upon  the  legis- 
lature only  such  power  in  the  matter  as  they  had 
heretofore  possessed. 

Mr.  KIRKLAND  went  on  to  insist  that  the 
amendment  was  liable  to  the  objections  he  urged 
against  it. 

Mr.  LOOMIS  objected  to  the  amendment  of 
Mr.  RUGGLKS  to  the  proposition  of  Mr.  MANN, 
and  expressed  the  hope  that  the  latter  gentleman 
would  withdraw  his  assent  to  the  amendment. 

Messrs.  SHEPARDand  MORRIS  continued  the 
debate,  when  the  question  being  taken  on  the 
amendment  of  Mr.  BROWN,  and  it  was  rejected, 

'  Mr.  LOOMIS  then  moved  in  effect  to  strike  out 
the  amendment  of  Mr.  RUGGLES,  assented  to  by 
Mr.  MANN,  and  incorporated  in  the  latter  gen- 
tleman's amendment. 

Mr.  TILDEN  opposed  the  motion  of  Mr.  L. 

Mr.  LOOMIS  replied. 

Mr.  RUGGLES  urged  that  his  amendment 
should  be  retained. 

Messrs.  FORSYTH,  CHATFIELD,  RUG- 
GLESy  MANN,  and  SIMMpNS  continued  the  de- 
bate, when  the  question  being  taken,  the  amend- 
ment of  Mr.  LOOMIS  was  rejected. 

Messrs.  STETSON,  RICHMOND,  and  BAS- 
COM  continued  the  debate,  when  the  question 
being  taken  on  the  amendment  of  Mr.  MANN,  it 
was  rejected,  ayes  32,  nays  64. 

Mr.  JORDAN  then  offered  the  section  as  orig- 
inally offered  by  Mr.  MANN. 

(j  — .  The  legislature  shall  have  the  same  power  to  alter 
and  regulat'-  the  jurisdiction  and  proceedings  in  law  and 
equity  that  they  have  heretofore  possessed. 

It  was  adop-fd,  ayes  45,  nays  32. 

Mr.  BROWN  was  satisfied  that  some  provision 
should  be  made  in  reference  to  the  judicial  busi- 
ness of  New-York.  With  that  view  he  proposed 
the  following  section.  He  asked  to  have  it  prin- 
ted and  laid  on  the  table  for  the  present. 

$j  — .  Whenever  the  population  of  any  judicial  district 

shall  exceed thousand,  provision  may  be  made  by 

law  for  the  election,  by  the  electors  of  such  district,  of  as- 
sistant justices  of  the  supreme  court  therein,  who  shall 
have  power  within  such  district  to  hold  circuit  courts,  to 
preside  at  courts  of  oyer  and  termincr,  and  to  act  as  assis- 
tant justices  with  one  or  more  justices  of  the  supreme 
court  in  holding  general  terms  of  said  court,  to  exercise 
and  perform  all  the  powers  and  duties  of  a  justice  of  the 
supreme  court  at  chambers.  They  shall  be  compensated 
in  like  manner  as  the.  justices  of  the  supreme  court,  and 
•hall  hold  their  offices  for  tue  term  of  eiglit  years. 

It  was  so  disposed  of. 

•Mr.  HUNT  offered  the  following  substitute  for 
section  1'2  of  the  report:  — 

^  12.  Each  Senate  district,  at  its  biennial  election  for  Se- 
nators, shall  choose  tun  e  electors  ol  judges.  No  citizen 
shall  vote  for  more  than  two  of  such  el»  ctors.  and  the  three 
jx.'isuns  having  the  highest  number  of  votes  shall  be  elec- 
ted. Should  fewer  than  three  electors  be  chosen  a1  ;niy 
such  election,  in  consequence  of  two  or  more  of  the  four 
persons  receiving  the  highest  number  of  votes  having  an 
equal  number  of  votes,  one  or  more  of  such  persons,  as 
the  case  may  require,  shall  be  selected  to  fill  tlie  <.U-nVicn- 
cy  by  lot.  The  electors  thus  chosen  throughout  the  State 
shall  convene  at  such  time  and  place  as  may  be  prescribed 
by  law,  and  elect  the  justices  of  the  supre'me  court,  and 
fill  vacancies  therein  occurring. 

This  amendment  was  disposed  of  as  above. 

The  fifth  section  being  then  read  as  follows  :— 

§5.  Any  three  of  tlr.-m  in  iv  holl  general    terms  of  said 

court  in  any  district  ;  and  any  one  o!  tlu.-m  may  hold  spe- 

cial terms  and  circuit  courts  und  preside   at  thecouitsoi 

oyer aad  teiminerin  any  county  »• 


Mr.  MURPHY  moved  a  substitute  as  fol- 
lows :— 

5)  o.  Any  four  of  "the  justices  of  the  supreme  court  of 
whom  th«  senior  justice  in  ago,  who  is  not  of  the  court  of 
appeals,  shall  always  be  one  land  shall  preside,  'nvij  hold 
general  terms  in  any  district;  and  »ny  one  of  thr;n  may 
hold  special  terms  and  circuit  courts  and  preside  at  the 
courts  of  oyer  and  terminer  in  anv  county. 

Mr.  MURPHY  said  he  had  not  hitherto  during 
the  protracted  discussion  of  now  nearly  three 
weeks  upon  the  report  of  the  committee  on  the 
judiciary,  said  a  single  word  on  the  subject.  He 
had  observed  this  silence  not  because  he  thought 
the  subject  unimportant,  but  on  the  contrary,  be- 
cause he  deemed  it  one  of  the  principal  objects, 
if  indeed  it  were  not  the  chief  object,  of  the  as- 
sembling of  this  convention.  He  had  been  con- 
tent to  be  a  listener,  rather  than  a  speaker— to 
learn  rather  than  to  attempt  to  teach — to  give  the 
report  the  full  benefit  of  the  expositions  of  its 
friends  without  cavil  and  without  embarrassment. 
But  now  we  we're  recording  our  names  upon  the 
different  portions  of  the  system,  and  a  silent  vote 
might  perchance  be  hereafter  misconstrued,  even 
if  it  might  not  possibly  be  censured  as  unjust  to 
the  constituency.  We  had  also  reached  a  part  of 
the  report  of  the  committee  of  the  whole  when 
he  was  compelled  by  the  honest  convictions  of 
his  judgment^  to  express  his  dissent,  and  to  make 
the  attempt,  unavailing  as  he  believed  it  would 
be,  to  render  it,  as  far  as  it  could  b^  made,  con- 
formable to  his  views.  He  said  unavailing,  be- 
cause the  convention  as  if  in  "  wandering  mazes 
lost,"  seems  bewildered  by  the  number  of  plans 
presented,  and  as  if  it  had  found  itself  compelled 
rather  to  make  its  escape  from  its  embarrassments 
by  carrying  straight  forward  the  report  of  the 
committee,  than  to  attempt  to  perfect  their  sys- 
tem. It  would  appear  as  if  a  large  majority  of 
the  Convention  were  opposed  to  the  proposed  plan 
as  a  whole,  yet  that  each  member  was  fearful  of 
the  least  innovation  upon  it,  lest  we  should  be 
compelled  to  begin  a  reconstruction.  Else  why 
is  it  that  amendments  come  from  all  parts  of  the 
house,  as  well  from  a  majority  of  the  committee 
who  have  devised  the  pLm,  and  who  have  become 
sensible  of  its  defects,  as  from  others,  and  that 
all  are  steadily  voted  down  ?  Like  the  enchanted 
ship,  with  sail  all  set  and  rudder  nailed,  the  plan 
of  the  judiciary  committee  seems  doomed  to  hold 
its  course  regardless  of  the  hidden  rocks  which 
past  experience  has  made  known,  and  which  are 
kid  down  upon  the  charts.  The  pilots  even  who 
set  our  course,  havebetn  displaced  from  the  helm 
and  onward  we  speed  indifferent  to  consequences. 
Unavailing  as  he  considered  the  attempt,  there- 
fore, he  had  nevertheless  in  the  discharge  of  duty 
determined  to  make  one  effort  to  arrest  this  head- 
long course,  by  submitting  the  amendment  which 
had  just  been  read.  As  a  sincere  advocate  of 
substantial  reform,  he  wished  to  see  an  efficient 
judiciary  system  adopted.  Every  change  was  not 
reform. "  Bad  as  was  the  present  system,  there 
might  be  a  change  for  the  worse  ;  to  avoid  which 
we  should  keep  steadily  in  view  the  evils  under 
which  we  now  suffer,  and  as  steadily  seek  to  ob- 
viate them.  He  knew  of  no  better  test  to  apply 
to  the  proposed  alterations,  than  whether  they 
corrected  those  evils,  at  the  same  time  that  they 
did  not  impair  those  other  parts  of  our  system 
which  it  is  not  desirable  to  disturb.  And  what 


774 


are  those  evils  ?  Are  they  not  the  delays  in  pro- 
curing lecisions,  and  the  expense  attending  the 
administration  of  justice  ?  Certainly  no  one  will 
deny  that  public  opinion  has  pointed  out  these  as 
the  principal,  if  not  the  only  ones  to  be  corrected. 
He  proposed,  then,  in  the  few  remarks  which  he 
should  now  submit,  to  subject  the  proposed  sys- 
tem to  this  test.  He  was  happy,  however,  to 
bear  testimony  to  the  fidelity,  industry,  and  abili- 
ty with  which  the  committee  had  discharged  its 
duty.  He  believed  that  it  had  been  actuated  by 
a  sincere  desire  to  effect  the  reforms  to  which  he 
had  alluded  ;  and  that  it  had  presented  us  rn  this 
plan  with  some  proposed  changes  which  would 
go  very  far  to  that  end.  If  it  has  failed  in  other 
respects  to  accomplish  this  purpose,  it  was  per- 
haps to  be  expected  from  the  complication  which 
must  exist  in  any  judiciary  system,  for  a  state  of 
such  important  and  varied  interests  as  this,  and 
from  the  intrinsic  difficulty  of  devising  any  new 
plan  entirely  sufficient.  He  would  first  refer  to 
those  points  in  which  he  thought  the  committee 
had  succeeded,  and  then  to  that  in  which  it  had 
failed,  with  a  view  of  presenting  his  amendment 
to  the  consideration  of  the  house.  First  in  im- 
portance of  the  advantages  of  their  system,  is  the 
adoption  of  the  principle  suggested  by  the  gentle- 
man from  Seneca,  (Mr  BASCOM,)  that  of  giving 
the  best  justice,  by  which  I  mean  the  best  talent 
and  learning  and  intellect,  for  the  trial  of  all 
causes,  whether  the  amount  involved  be  large  or 
small.  This  idea  is  worthy  of  a  true  reformer. 
It  is  to  me  a  grand  conception,  that  the  suitor  who 
shall  have  a  small  amount  in  controversy,  an 
amount  as  important^  perhaps  to  him,  as  a  large 
sum  to  others,  shall  have  the  same  judicial  wis- 
dom and  learning  as  the  suitor  who  may  have  his 
thousands  at  stake.  One  of  the  greatest  vices  of 
our  present  system  has  been  the  administration 
of  inferior  justice,  as  it  has  come  to.  be  consider- 
ed in  our  common  pleas  court,  in  consequence  of 
their  being  subordinate  to  the  supreme  court. — 
There  have  been  in  many  of  the  counties  of  the 
state  judges  of  those  courts,  of  distinguished 
ability,  yet  in  general  they  have  been  otherwise. 
Suitors  have  in  consequence  had  no  confidence  in 
their  decisions ;  writs  of  error  have  multiplied, 
delays  have  consequently  ensued,  and  the  system 
itself  has  become  odious.  The  committee  has 
wisely  recommended  that  there  shall  be  but  one 
court  of  record  for  the  trial  of  causes  in  the 
county,  and  that  a  judge  of  the  highest  court  of 
original  common  law  and  equity  jurisdiction  shall 
preside  in  it.  A  leform,  which  will  give  us  a 
good  administration  of  the  law,  and  therefore 
speedy  and  cheap,  will  be  in  this  manner,  at 
least  partially  accomplished.  Besides,  the  more 
you  lessen  appeals  and  writs  of  error,  the  more 
you  lessen  expense.  It  is  not  the  compensation 
which  the  law  officers  and  attorneys  receive  for 
any  particular  service  that  is  burdensome,  but  it 
isx  the  multiplication  of  services  in  each  suit 
which  is  the  cause  of  the  ruinous  expenses  of 
litigation  in  our  courts.  If  you  send  a  supreme 
court  judge  in  your  counties  to  try  causes,  liti- 
gants will  be  satisfied  with  his  determination, 
and  not  seek  to  carry  their  suits  any  further. — 
They  will  know  that  it  will  be,  in  general,  money 

hrown  away  to  attempt  to  get  a  reversal,  because 
the  judge  who  tried  their  cause  will  be  also  a 


judge  of  the  highest  court.  In  regard  to  expense 
another  great  saving  is  made  to  the  tax-payers  in 
abolishing  county  courts.  The  summoning  of 
two  sets' of  grand  jurors  and  two  seta  of  petit 
jurors,  one  of  each  for  the  oyer  and  terminer  and 
circuit  courts,  and  the  other  for  the  special  ses- 
sions and  common  pleas, — oftentimes  as  has  hap- 
pened in  the  county  of  Kings,  at  one  and  the 
same  time,  will  be  avoided.  The  plan  of  the 
committee  meets  these  evils  in  another  respect, 
by  abolishing  the  expensive  and  dilatory  prac- 
tice of  written  examinations  before  an  examiner 
in  chancery. 

Every  lawyer  knows  how  those  examinations  are 
oftentimes  protracted  from  day  to  day,  sometimes 
month  alter  mouth,  until  he  becomes  wearied 
with  them  himself.  The  expense  is  oftentimes 
enormous,  and  generally  the  most  serious  por- 
tion of  the  costs.  By  the  abolition  of  this  prac. 
lice,  and  the  substitution  of  oral  examinations  at 
the  hearing  in  court,  both  this  time  and  this  ex- 
pense will  be  saved.  It.  is  idle  to  suppose  that 
there  is  any  difficulty  in  taking  this  testimony  just 
as  easily  as  evidence  is  now  taken  in  a  trial  at 
law;  for  although  from  the  forms  ot  proceeding  in 
chancery  by  bill  and  answer,  more  issues  of  tact 
are  presented  by  the  pleadings  than  in  pleadings 
at  law,  in  consequence  ot  the  latter  being  ficti- 
tious; yet  the  same  number  of  issues  of  fact  anse 
on  the  trial  at  law,  when  the  fictions  are  discarded 
and  the  true  case  presented.  But  even  it  more 
time  be  required  to  take  the  testimony  by  thejudge 
in  chancery  than  on  a  trial  at  law,  it  will  be  more 
han  compensated  by  the  time  saved  in  not  having 
to  wade  through  the  mass  of  written  evidence  of 
an  irrelevant  character,  which  under  the  present 
system  is  collected,  and  winch  he  must  read. 

Another  excellent  feature  of  reform,  is  the  obo- 
lition  of  fees  and  perquisites,  which  all  our  judges, 
except  the  three  justices  of  the  supreme  court  and 
the  chancellor,  have  enjoyed.  JNo  plan  could  be 
devised  by  human  ingenuity  more  effectually  to  de- 
feat the  regular  and  prompt  administration  of  jus- 
tice than  the  allowance  of  perquisites  to  the  judge. 
It  holds  out  to  him  constantly  bribes  to  delay  nis 
business,  or  ai  least  to  dela^  suits.  Interlocutory 
orders,  as  they  are  called,  such  as  ciders  for  fur- 
ther time  to  plead,  to  stay  proceedings,  and  the 
like,  tor  each  of  which  he  receives  a  lee,  necessa- 
rily serve  to  protract  the  litigation,  while  the 
temptation  of  the  fee  is  held  out  to  influence  the 
judge  to  kindness  in  granting  them.  The  same 
temptation  exists  as  to  taxation  of  costs,  and  the 
judge  knows  that  the  attorney  will  take  his  busi- 
ness where  the  most  liberality  ex;sts  in  taxation. 
This  is  unjust  to  'he  judge  himself.  Even  it  he 
can  resist  these  influences,  still  he  is  likely  to  be 
suspected;  lor  men  will  attribute  the  same  motives 
of  action  to  him  as  ar«  known  to  govern  other  in- 
dividuals. These  fees  also  operate  to  delay  the 
administration  of  the  law  in  another  way.  The 
judges  ol'the  first  circuit  have  tor  many  years  de- 
voted the  best  part  of  the  day,  that  is  the  morning, 
to  chamber  business  during  the  term  of  the  cir- 
cuit. In  my  own  county,  these  courts  ha\e  rarely 
opened  before  eleven  o'clock  in  the  morning  So 
far  as  these  reforms  are  effected,  I  am  pleased  with 
the  report  of  the  committee.  But  the  report  falls 
short  in  other  particulars.  It  was  not  to  be  ex. 
peeled  that  they  would  have  given  us  a  perfect 


775 


wotk.  They  h.ive,  it  appears  tome,  committed  a 
great  error,  and  one  which  will  continue  the  de- 
lays in  liw,  and  'hat  13  contained  in  the  section  to 
which  my  amendment  applies.  That  section,  as 
it  now  stands,  creates  eisfht  dill'-rent  parts  of  the 
supreme  courf,  by  declaiing  that  any  three  of  the 
justices  may  hold  the  terms  in  each  of  the  eight 
dis  nets.  Undei  tins  plan,  two  of  these  cotjn's 
m-iv  he  silting  at  the  same  time,  anil  may  decide 
differently  on  the  same  state  of  tacts  existing  in 
two  causes  before  them  respectively.  Or  should  a 
court  sitting  on  Long  Island  deckle  to-day  one  way, 
another  portion  of  the  court  sifting  at  Buffalo  the 
next  month  might  be  of  a  different  opinion  in  a 
similar  case,  and  would  differently  decide,  because 
one  of  these  courts  cannof  give  law  to  the  other. 
The  only  court  in  which  you  can  obtain  a  deci 
sion  which  will  be  law  10  (he  whole  slate,  will  be 
the  court  of  appeals.  The  supreme  court,  as  such, 
will  no  longer  exist;  at  least  you  will  have  no 
such  court  ot  original  jurisdiction.  A  supreme 
court  is  one  which  declares  the  law  for  the  whole 
state  ;  as  well  for  itself  as  lor  inferior  tribunals, 
and  lor  the  public.  But  eight  courts  sitting  in  as 
many  districts,  and  all  having  equal  powers,  can- 
not act  i:i  concert  and  be  uniied  in  the  law.  There 
can  be  no  connection  between  I  hem.  They  become 
district  courts,  arid  sink  at  once  to  an  interior  po- 
sition in  the  public  estimation.  The  consequence 
will  be  that  no  confidence  will  be  felt  in  them, 
especially  if  they  occasionally  give  different  deci- 
sions; and  suitors  will  consequently  resort  to  the 
court  of  appeals  in  much  greater  numbers  than  if 
the  decisions  ot  the  supreme  court  weie  uniform 
and  consjstur.  I  am  not  satisfied  with  the  system 
proposed  l/y  t.  >->  commit'ee  in  other  particulars; 
but  I  am  willing  to  saciifice  my  own  opinions  in 
regard  to  them  to  the  decision  of  the  Convention, 
if  a  remedy  be  provided  lor  the  difficulty  which  1 
have  now  referred  to.  I  have  voted  in  favor  of  the 
establishment  of  county  courts,  in  the  hope  that 
by  adopting  them  a  new  plan  would  be  fix  d  for  a 
supreme  court.  That  idea  is  now  hopeless,  lean- 
not  consent  to  the  present  plan,  and  at  the  same 
time  claim  to  have  cured  the  evils  of  which  the 
public  complain.  These  evils  must  continue  un- 
der it.  Appeals  and  writs  of  error  will  multiply, 
and  the  court  of  appeals  will,  in  less  than  five 
years,  become  completely  clogged,  and  be  unable 
to  proceed.  The  amendment  which  I  propose,  is 
offered  with  the  view  of  making  a  connection  be- 
tween the  districts,  without  interfering  with  the 
distinctive  features  ot  the  [dan  of  the  committee 
It  leaves  the  s-ime  number  ot  j  idges,  and  i  he  same 
districts.  Ii  provides  that  one  of  the  judges,  or 
more  if  it  be  necessary,  may  be  designated  to  pre- 
side in  these  courts;  to  go  from  one  district  to  the 
other,  and  carry  wi'  h  him  the  opinions  ot  his  breth- 
ren from  one  branch  of  the  court  to  the  other ;  and 
by  taking  part  in  the  decisions,  to  draw  them  to- 
gether, and  to  produce  uniformity.  This,  I  admit, 
is  not  a  perfect  system.  It  is  the  be*t,  however, 
of  which  the  plan  of  the  committee  is  susceptible 
It  may  be  objected  that  one  man  cannot  sit  in  all 
these  bane  courts;  that  the  physical  power  of  no 
single  individual  would  be  sufficient  to  go  through 
witti  the  labor.  The  plan  which  the  amendment 
conte •nplates,  is  to  prevent  any  two  or  more  ol 
these  district  bane  couits  sitting  at  the  same  time. 
The  presence  ot  one  man  in  all  of  them  will  re- 


quire that  they  be  held  consecutively.  According 
to  the  sugges  ion  of  the  chauman  of  Ihe  commit- 
tee, (Mr.  KUGGLES,)  then-  would  probably  be  thiee 
basic  UTIUS  held  in  each  di>tncf  in  a  year.  This 
would  make  twenty-tour  terms  in  all,  and  require 
the  presidmgjudge  to  make,  the  circuit  of  the  .style 
three  nines  a  year.  It' each  of  tlie.se  terms  avera- 
ged two  weeks,  f«>rt  \-t-ight  weeks  in  tne  ytar 
would  be  occupied  by  him  in  court.  Of  course  no 
time  would  be  allowed  hirn  for  writing  out  his  opi- 
nions But  1  apprehend  that  three  terms  a  year 
will  he  more  than  will  be  necessaiy.  With  two 
terms  in  each  districl,  he  will  have  lime  enough, 
especially  if  this  presiding  duty  be  assigned  annu- 
ally or  biennially  to  different  judges.  Bui  the  dif- 
ficulty can  be  entiiely  obviated  by  the  designation 
ot  two  or  even  more  for  the  purpose.  The  object 
is  to  connect  these  couits;  to  provide  a  means  of 
inteichange  of  opinion*;  and  to  approximate  as 
near  to  uniformity  as  under  the  system  we  can  do. 
There  are  other  advantages  flowing  from  this  un- 
ion besides  keeping  down  appeals.  The  judges 
thus  appointed  to  preside  will  become  more  skilled. 
The  office  will  ^e  a  preparatory  school  lor  the 
couit  of  appeals,  in  which  four  of  them  are  by  ihe 
committee  to  sit.  Liberality  of  views  will  be  pro- 
moted, the  spirit  ot  the  whole  people  ol  the  slate 
appreciated,  and  that  progress  of  law  as  a  science, 
based  upon  the  rights  of  man,  secured  I  have  vo- 
ted atrainst  the  union  of  the  tribunals  of  law  and 
equity  as  provided  lor  by  the  committee,  simply 
on  the  ground  that  it  effects  no  reform  of  itself. 
The  only  effect  of  it  will  be  to  impose  a  double  du- 
ty upon  the  same  judge,  wheieas  a  division  of  la- 
bor in  law,  as  in  every  other  art,  trade  or  profes- 
sion, is  of  advantage  to  the  public  in  securing  a 
moie  perfect  and  speedy  work.  The  plan  of  the 
committee  keeps  up  the  distinction  between  the 
two  tribunals  as  before.  Equity  poweis  wilt  be 
exercised  t>y  twenty-eight  judges,  instead  of  by 
one  chancellor  and  nine  vice  chancellors,  as  now. 
I  am  prepared  to  hike  the  step  proposed  by  the 
gentleman  fiotn  New  York,  (iVJr.  O'CONOR.)  and 
to  adopt  one  common  mode  of  procedure  in  law 
and  equity,  and  that  is  by  bill  and  answer.  Unless 
that  step  be  taken,  your  union  of  the  law  and 
chancery  courts  into  one,  with  a  separate  and  dis- 
tinct mode  of  proceeding,  as  now,  works  no  re- 
form. 1  wish  to  see  a  plan  by  which  a  suitor  will 
not  be  thrown  from  one  court  to  another  beca.se 
his  counsel  has  mistaken  the  remedy,  and  such  a 
plan  is  secured  by  the  proposition  of  ihe  gentle- 
man from  New-York.  Still,  as  I  have  said,  I  am 
will, ng  to  waive  my  objection  to  this  and  some 
other  parts  of  the  report,  if  we  only  remove  the 
evils  which  the  public  have  called  upon  us  to  re- 
medy. Justice  administered  promptly  and  at  a 
fair  charge,  will  satisfy  the  intelligent  conslituents 
whom  we  represent;  provided  it  flow  from  honest, 
independent  and  capable  tribunals.  With  the 
adoption  of  my  amendment,  I  will  be  content  to 
sustain  the  plan  of  the  committee. 

Mr.  NICOLL  concurred  in  the  remarks  of  Mr 
MURPHY,  but  he  saw  great  difficulty  in  carrying 
into  effect  his  proposition.  He  believed  it  would 
be  physically  impossible  for  any  one  judge  to  do 
all  the  duty.  Mr.  N.  suggested  a  modification  of 
the  plan  by  which  t,wo  judges  could  be  selected 
for  this  purpose.  He  did  not  think  it  a  safe  rule 
to  prescribe  that  the  senior  judge  should  alone  be 


776 


eligible.     He  would  leave  it  to  the  legislature  to 
prescribe   some  plan  by  which  the  end  could  b 
attained.     He  would  therefore  suggest  the  follow 
ing  amendment : 

General  terms  of  the  said  court  may  be  held  in  any  dis 
trict  by  three  or  more  judges  thereof.  Two  of  the  saic 
judges  shall  be  selected  in  a  manner  to  be  provided  Cor  bj 
law,  for  the  purpose  of  presiding  in  said  courts. 

Mr.  MURPHY  would  not  object  to  any  amend- 
ment which  would  carry  out  his  views. 

Mr.  BROWN -felt  inclined  to  think  favorably 
of  the  spirit  of  this  proposition,  although  he 
thought  it  to  be  impracticable  in  the  way  in  which 
it  was  presented.  This  he  confessed  was  the  grea 
difficulty  of  this  system  but  one  which  the  com- 
mittee had  thought  would  be  compensated  by  the 
many  advantages  secured.  But  Mr.  B.  expressed 
himself  disposed  to  look  upon  the  amendment  fa- 
vorably and  suggested  that  it  be  laid  on  the  table 
for  the  present. 

Mr.  BASCOM  thought  this  to  be  a  proposition 
worthy  of  consideration.  But  he  did  not  wish  to 
vote  immediately  on  the  question,  and  suggested 
that  it  be  deferred  for  the  present. 

Mr.  CHATFIELD  proposed  the  following  a- 
mendrnent  : 

^5.  General  terms  of  said  court  shall  be  annually  held 
in  each  of  the  suid  districts  ;  and  may  be  held  by  any  three 
of  said  judges  ;  and  any  one  of  said  judges  miyhold  spe- 
cial terms  and  circuit  courts,  and  one  or  more  of  said  jud- 
ges shall  preside  at  the  courts  of  oyer  and  terminer  in  any 
county. 

After  some  further  consideration, 

Mr.  BROWN  offered  the  following  substitute 
for  the  section  : 

!j  5.  Provision  may  be  made  by  law  for  designating  irom 
time  to  time  one  of  the  said  justices  to  preside  at  the  gen- 
eral  terms  of  the  said  court  to  be  held  in  the  several  dis- 
tricts. Any  three  or  more  of  said  justices,  of  whom  the 
said  justice  so  designated  shall  always  be  one,  may  hold 
such  general  terms  and  any  one  of  them  may  hold  circuit 
courts  and  courts  of  oyer  and  terminer  in  any  county. 

Mr.  MURPHY  withdrew  his  substitute. 

These  several  propositions  were  ordered  to  be 
printed. 

Mr.  STEPHENS  laid  on  the  table  a  resolution, 
that  the  Convention  would  adjourn  sine  die  on 
the  first  Saturday  of  October  next. 

The  Convention  then  adjourned. 

MONDAY,  (16th  day)  August  31. 
Prayer  by  the  Rev.  Dr.  SPRAGTJE. 

Mr.  SHAW  presented  the  memorial  of  teach- 
ers of  the  Moravian  Institute  in  relation  to  the 
proposed  diversion  of  the  literature  fund,  &c. 

Mr.WORDEN  presented  a  similar  remonstrance 
from  the  trustees  of  the  Genessee  Wesleyan  Semi- 
nary. Each  was  referred  as  before. 

CANALS,  FINANCES,  &c. 

Mr.  AYRAULT  presented  the  following,  as  a 
counter  proposition  to  that  of  Mr.  HOFFMAN'S  : 

§  1.  The  legislature  shall  not  sell,  lease,  or  otherwise  dis 
pose  of  any  01  the  navigable  canals  of  this  State,  including 
such  as  the  State  may  hereafter  finish  and  make  navigable; 
but  they  shall  remain  the  property  of  the  State  lorever  ; 
and  the  tolls  and  all  the  revenues  accruing  therefrom  shall 
be  applied  as  provided  for  in  this  Constitution. 

^  -2.  The  tolls  shall  be  so  regulated  as  to  best  preserve 
the  public  faith,  and  to  provide  lor  the  punctual  payment 
of  the  public  debt  as  hereinafter  speciiied  ;  and  no  reduc- 
tion of  tolls  shall  be  made  unless  in  view  of  those  objects, 
until  the  whole  of  said  debt  shall  be  fully  paid. 

§  3.  For  the  purpose  pf  completing  the  unfinished  canals, 
the  legislature  may  have  power  to  increase  the  present 


State  debt  to  the  amount  of,  but  not  exceeding  in  the  ag» 
gregate  $25,000,00'J,  (exclusive  of  a  contingent  liability  for 
the  payment  of  $1,713,000  loaned  to  solvent  corporations,) 
provided  it  can  be  loaned  at  a  rate  of  interest  not  exceed- 
ing 5  per  cent ;  but  such  increase  shall  not  exceed  in  any 
one  year  $1,000,000;  and  no  such  further  increase  shall 
be  made  unless  for  the  better  enabling  the  Skate  to  fulfil 
its  engagements,  by  prosecuting  with  a  view  to  comple- 
tion some  part  or  all  of  the  unfinished  canals,  to  wit :— The 
Erie  canal  enlargement ;  Genesee  Valley  canal  and  Black 
River  canal ;— but  the  present  State  debt  shall  not  be  in- 
creased for  tiny  other  purpose,  unless  to  repel  invasion 
or  suppress  insurrection. 

^  4.  After  paying  the  expense  of  collecting,  superinten- 
ding ar:d  ordinary  repairs,  $1,500,000  of  the  re  venues  of  the 
State  canals,  shall  in  each  year,  and  at  that  rate  for  a  shor- 
ter period,  commencing  first  July,  1846,  be  applied  or  set 
apart  as  a  sinking  fund  for  the  next  ten  years,  to  pay  the 
interest  and  redeem  the  principal  of  the  State  debt,  until 
first  July,  1858,  when  $2,000  000  of  said  revenues  shall 
thereafter  continue  to  be  applied  or  set  apart  annually,  or 
in  that  proportion  for  a  shorter  period,  in  like  manner, 
and  to  the  like  effect,  until  the  whole  of  said  debt,  and  the 
interest  thereon,  is  fully  paid  and  satisfied. 

§  5.  The  balance  of  the  revenues  of  the  canals,  be  the 
same  more  or  less,  after  paying  as  provided  in  the  last  pre- 
ceding section, together  with  tne  auction  audsalt  duties  and 
all  other  receipts  into  the  Treasury  not  otherwise  specifi- 
cally appropriated,  shall  be  applied  at  the  discretion  of  the 
Legislature  in  defraying  the  ordinary  expenses  of  the  Go- 
vernment, the  completion  of  the  unfinished  canals,  and  the 
payment  ot  the  public  debt;  that  is,  the  said  canal  reve- 
nues are  thus  sacredly  pledged,  until  the  State  debt  and 
-"nterest  thereon  is  fully  paid  and  extinguished. 

§  6.  If  tho  funds  herein  provided  for  paying  the  public 
creditors  shall  not  be  realized  in  time  to  meet  the  state 
stocks  falling  due,  provision  shall  be  madebv  Jaw  for  is- 
suing new  stock  for  that  purpose:  -said  new  stock  shall 
be  made  payable  at  such  time  as  the  revenues  will  meet 
the  same. 

EXPLANATORY 

The  balance  of  the  agjriegate  state  debt,  including  all 
sums  borrowed  from  specific  state  lunds,  is  believed  to  be 
less  than  $22,000,0.10,  and  cannot  exceed  $22.800,000— bor- 
:-ow  $2,-20U,000,  is  $25,000,000.  Appropriate  in  payment 
$1,500,000  annually  iorjjten  years,  and  $2,000,000  annually 
:hereafter,  will  pay  a  debt  of  $25,000,000,  and  interest 
thereon,  in  28  years.  Or  apply  all  the  revenues  after  com- 
peting the  canals,  and  it  is  believed  the  debt  will  be  ex. 
jnguished  at  a  much  earlier  period. 

This  plan  simplifi  ;s  the  state  debt  by  treating  the  amount 
n  the  aggregate  instead  of  the  numerous  specific  and  gen- 
eral funds  in  which  it  has  betua  heretotore  considered;  and 
it  secures  the  early  completion  of  the  public  works,  there- 
by  increasing  the  revenues  from  the  increased  business 
caused  by  cheapening  transportation  without  a  reduction 
of  tolls. 

JUDICIARY  EXPENSES. 

MR.  PERKINS  united  the  following: 

Resolved,  That  the  Comptroller  be  requested  to  furnish 
his  Conveniion  with  the  amounts  paia  within  the  last 
:hree  years  to  judges  of  the  several  courts  of  oyer  and 
:erminer,  in  this  state,  for  services,  under  part  fourth, 
chapter  first,  title  one,  section  thirteen  of  the  Revised 
Statutes. 

Mr.  P.  explained  his  object  to  be  toc;ill  for  the 
amounts  paid  for  returns  of  testimony  made  to  the 
governor  in  capital  cases  under  the  statute.  His 
•^solution  was  suggested  mainly  bv  a  knowledge 
)f  the  fact  that  the  circuit  judge  had  charged  $7(JO 
or  furnishing  a  copy  of  his  notes  to  the  Governor 
n  the  case  of  Freeman  the  murderer,  and  $600 
or  I  he  notes  of  the  trial  of  Wyatt. 

The  resolution  was  agreed  to. 

THE  JUDI    IARY. 

The  Convention  resumed  the  consideration  of 
he  judiciary  article,  the  fifth  section,  being  still 
mder  consideration. 

Mr.  J.  J.  TAYLOR  moved  to  amend  by  insert- 
ng  (he  words — "or  any  judge  of  the  couit  of 
ippeals,"  after  the  word  "then,"  in  the2d  line. — 
Hr.  T.  explained  his  object  to  be  to  enable  any 
udge  of  the  court  of  appeals,  as  well  as  any 


777 


.if  the  siDivtne  court,  to  hold  special  terms, 
an<l  circuit  courts,  and  to  preside  at  the  courts  of 

:tid  terminer  in  any  county. 

.  HOFFMAN  supported  the  amendment,  for 
he  thought  it  would  be  wise  to  requiie  the  judges 
of  tiie  court  of  appeals,  not  only  to  sit  in  bane, 
but  to  sit  on  circuit.  He  would  amend  the  section 
so  that  the  judges  of  the  court  of  appeals  might 
be  employed  every  where  in  bane,  in  circuit  and 
in  nvor  and  terminer,  so  as  to  leave  the  door  open 
to  a  beneficial  arrangement  by  the  legislature.— 
lie  proposed  to  amend  the  section  so  as  to  read  as 
follows: 

The  judges  of  the  supreme  court  and  of  the  court  of 
appeals,  or  any  two  or  more  of  them,  may  hold  terms  of 
saiiJ  supreme  court ;  and  any  one  of  them  may  hold  cir- 
cuit courts,  and  preside  at  the  courts  of  oyer  and  terminer 
in  ;my  county. 

Mr.  WORDEN  understood  it  to  be  the  intention 
of  the  judiciary  committee,  (whose  chairman  was 
now  absent,  he  feared  in  consequence  of  ill 
health,)  to  have  a  court  of  appeals  disconnected 
with  the  judges  of  the  inferior  courts,  so  that  when 
sis  came  up  they  might  be  heard  by  a  class 
of  men  who  had  not  mingled  in  anyway  with  the 
decisions  and  reasonings  of  the  inferior  tribunals, 
a:id  as  a  consequence  had  no  preconceived  opin- 
ions. He  feared  the  amendment  of  the  gentle- 
man from  Herkimer  would  produce  an  effect  that 
was  not  intended.  He  did  not  belisve  the  legiti- 
mate business  of  that  court  would  permit  them  to 
hold  circuit  courts  ;  and  feared  that  there  was  a 
disposition  to  throw  too  much  upon  the  court  of 
last  resort,  where  judges  should  have  abundant 
time  to  make  up  their  opinions  upon  the  cases 
brought  before  them.  Nor  did  he  think  their 
knowledge  of  the  practice  in  these  courts  would 
be  sufficient  to  make  them  competent  to  the  du- 
ties of  holding  terms  in  nisi  prius.  He  should 
therefore  oppose  the  amendment. 

Mr.  SIMMONS  agreed  with  the  gentleman  from 
HIM  Uiiner  that  two  or  more  judges  should  be  per- 
mdu'd  to  hold  special  terms,  and  he  would  be  even 
willing  to  adopt  the  phraseology  of  the  present 
constitution,  and  say  one  or  more,  so  that  the  peo- 
ple might  have  courts  held  occasionally  at  t In-m- 
own doors.  He  would  not,  however,  make  this  a 
consiitutional  provision,  but  leave  it  to  the  legis- 
alun-i . 

Mr  PATTERSON  said  as  part  of  the  court  of 
appeals  would  be  elected  by  general  ticket,  that 
part  might  consist  of  laymen,  and  it  was  held  to 
be  desiiable  lhai  they  should  be  so  ;  but  it  would 
be  obviously  improper  that  laymen  should  hold 
circuit  coin  t.s. 

Mr.  SIMMONS  said  it  wag  not  proposed  to 
make  it  obligatory  on  them  to  do  so,  but  merely 
to  give  them  the  discretionary  power  which  it 
could  not  be  supposed  the  lay  members  of  that 
court  would  exen  i>.-. 

Mr.  HOFFMAN  objected  to  the  judges  of  I  he 
court  of  app.'.ils  sitting  at  circuit,  it  they  did  rn>t 
sit  at  bane,  and  others" objected  to  their  sitting  in 
circuit  if  they  did  sit  in  bane.  How  should  they 
reconcile  these  differences.  He  thought  the  dis- 
charge oftyanc  aud  circuit  duties  would  increase 
the  abililiesot' the  judges  of  the  court  of  appeals 
for  discharging  their  peculiar  duties,  and  tend  to 
expose  incompetency,  it  it  should  find  its  way  in 
to  the  court  of  last  resort. 


Mr.  KIRKLAND  asked  what  the  gentleman 
from  Herkimer  meant,  by  proposing  (o  leave  out 
the  words,  "  any  district." 

Mr.  HOFFMAN  replied  that  he  feared  these 
courts  would  be  considered  district,  instead  of 
state  courts. 

Mr.  KIRKLAND  feared  the  omission  of  those 
words  would  lead  to  a  continuance  of  that  central- 
ization of  which  so  much  complaint  had  been 
made.  He  suggested  some  modification  which 
would  obviate  his  objections  and  make  the  amend- 
ment a  valuable  one. 

Mr.  HOFFMAN  replied,  and  the  debate  was 
continued  by  Messrs.  SIMMONS,  RICHMOND, 
MORRIS,  'HARRIS,  PATTERSON,  TALL- 
MADGE,  STETSON  and  RUGGLES. 

Mr.  STETSON  moved  to  amend  the  amend- 
ment by  striking  out  the  words  "  and  of  the  court 
of  appeals,"  and  insert  "  or  a  judge  of  the  court 
of  appeals,"  after  "them,"  in  the  third  line,  so 
that  the  judges  of  the  appeal  court  may  hold  cir- 
cuit courts  and  courts  of  oyer  and  terminer,  but 
not  terms  of  the  supreme  court. 

Mr.  HOFFMAN  said  this  would  make  the 
whole  nothing  more  than  a  district  system,  in- 
stead of  a  system  for  the  state  at  large. 

Mr.  RUGGLES  explained  the  purposes  of  the 
committee  in  framing  the  fifth  section,  and  re- 
plied to  the  arguments  which  had  been  brought 
in  favor  of  the  proposed  amendment. 

The  amendment  of  Mr.  STETSON  was  lost — 
ayes  20,  noes  34. 

The  question  then  recurred  on  the  amendment 
of  Mr.  TAYI-OR,  as  amended  by  Mr.  HOFFMAN". 
The  ayes  and  noes  were  called,  and  there  were 
yeas  18,  nays  70. 

Mr.  J.  J.  TAYLOR  renewed  his  amendment 
in  its  original  form  before  it  was  amended  on  the 
suggestion  of  Mr.  HOFFMAN. 

The  amendment  was  lost. 

Mr.  MURPHY  offered  an  amendment  to  the 
fifth  section,  as  follows : — 

Provisions  may  be  made  by  law,  for  designating,  from 
time  to  time,  one  or  more  ot"  the  said  justices  of  the  sunrerne 
court,  not  of  the  court  of  appeals,  cither  of  whom  may  pre- 
side at.  the  general  terms  of  the  -said  court  to  be  held  in  tho 
several  districts.  Any  three  or  more  of  the;  said  justices 
of  whom  one  ol  the  sai.l  justices  so  designated  shall  always 
be  one,  may  hold  such  general  terms.  And  any  one  of 
them  may  hold  special  terms  and  circuit  courts,  and  may 
preside  in  courts  of  oyer  and  terminer  in  any  county. 

Mr.  BAKER  moved  to  amend  so  that  it  would 
read  "  two  of  them  may  hold  special  terms,"  &c. 

This  was  briefly  debated  by  Messrs.  BAKER, 
and  BROWN,  when  the  vote  was  taken  by  rising, 
and  there  were  ayes  34,  nays  32. 

Mr.  STETSON  demanded  the  ayes  and  nays, 
and  they  were  ordered. 

Messrs.  STETSON  and  SIMMONS  farther  de- 
bated the  amendment,  when 

Mr.  BAKER  modified  the  same  so  that  it  would 
read  "  any  one  or  more,"  &.c. 

Mr.  Murphy  accepted  the  amendment.  (It  is 
embodied  above.) 

The  substitute  of  Mr.  MURPHY  was  then  adopt- 
ed without  a  division. 

The  6th  section  was  then  read  as  follows : 

§  6.  They  shall  severally  at  stated  times  receive  for  their 
services  a  compensation  to  be  established  by  law,  which 
shall  not  be  diminished  during  their  continuance  in  office. 


778 


Mr.  RICHMOND  moved  to  strike  out  all  afte 
the  word  "  law." 

This  amendment  was  lost,  ayes  13,  noes  68. 
Mr.  BROWN  offered  the  following  substitut 
for  the  clause  proposed  to  be  struck    out,   at  the 
request  of  Mr.  LOOMIS,  who  penned  it,  and  woul 
not  be  here  until  this  afternoon  : 

"  But  no  law  shall  be  passed  by  which  the  salary  of  anj 
judge  shall  be  diminished  below"  the  amount  establishec 
by  law  at  the  time  of  his  acceptance  of  his  office— nor  shal 
any  law  increasing  the  salary  of  a  judge  take  effect  with 
in  two  years  after  its  passage." 

Mr.  B.  said  the  object  was  to  allow  the  legisla- 
ture to  reduce  the  salary  of  a  judge  to  the  point 
where  it  stood  when  the  judge  took  office,  but  not 
below  that  amount — and  to  prevent  any  increase 
of  salary  taking  effect  within  two  years. 

Mr.  SIMMONS  preferred  the  original   section 
as  it  stood.     That  had  a  well  settled  meaning. — 
We  should  only  mystify   the   section  by   the 
mendment. 

Mr.  RICHMOND  dwelt  at  much  length  on  the 
original  section — contending  that  it  would  in- 
vite efforts  on  the  part  of  the  judges  to  get  their 
salaries  increased,  and  once  raised  to  a  high  point, 
they  would  not  be  reduced  during  their  continu- 
ance in  office.  He  was  for  paying  them  well,  but 
he  would  not  fix  it  in  the  constitution  that  a  sala- 
ry once  fixed,  no  mailer  how  high  it  was,  should 
not  be  reduced  for  eight  years.  He  should  pre- 
fer to  see  the  word  diminished  struck  out  and  in- 
creased put  in. 

Mr.  HOFFMAN  opposed  both  the  original  sec- 
tion, the  amendment,  and  the  suggestion  of  Mr. 
RICHMOND.  The  object  of  such  provision  should 
be  to  make  the  judges  independent  of  the  legisla- 
ture, and  it  had  nothing  to  do  with  the  popularity 
hunting  question  of  confidence  or  want  of  confi- 
dence in  the  people.  It  was  not  necessary  that  a 
man,  in  settling  this  question,  should  have  a  pop 
ularity  halter  in  his  pocket,  going  about  to  see  ij 
he  could  not  find  a  popularity  horse  to  mount. — 
The  question  was  how  could  we  make  judges  in- 
dependent of  the  legislature.  We  should  see  to 
it  that  the  legislature  should  not  increase  the  pay 
of  the  judge.  If  they  could,  they  could  pension 
him — they  might  reward  him  for  his  decisions,  or 
punish  him  for  his  decisions,  by  refusing  to  re- 


ward him.  They  ought  not  to  have  the  power  to 
reduce  or  increase  the  pay  of  a  judge.  He  went 
on  to  urge  that  the  minimum  compensation  of  a 
judge  should  be  named  in  the  constitution — that 
the  legislature  ought  not  to  be  permitted  to  go 
below  it — and  the  least  compensation  he  would 
name  would  be  $3,000.  He  was  free  to  confess 
that  opinion,  and  that  the  danger  was,  under  this 
increase  of  the  judicial  force,  that  their  compen- 
sation might  be  fixed  at  too  low  a  sum.  A  man 
who  would  not  go  on  the  bench  frofh  any  other 
motive  than  pay,  was  unfit  to  be  there.  So  was 
the  man  who  would  go  there  without  adequate 
pay.  They  must  have  bread,  a  shirt  and  lodg- 
ings. If  you  did  not  give  it  to  them  by  law,  they 
would  have  it,  he  would  not  say  how.  But  they 
would  have  it.  He  urged  that  $3,000  was  little 
enough  for  a  judge  who  had  to  travel  over  the 
whole  state,  leave  his  family,  and  his  affairs  to  be 
managed  by  others,  and  to  live  a  good  part  of  the 
time  in  your  large  cities,  where  he  must  pay  the 
high  prices  which  transient  persons  had  to  pay 
there.  He  would  have  the  judge  speak  the  law 


without  the  fear  of  losing  his  bread,  or  the  hope 
of  acquiring  the  favor  of  the  legislature  and  mon- 
ey. Without  an  independent  judiciary  to  stand 

by  the  constitution,  there  was  no  vitality  in  it. 

And  to  be  really  independent,  the  legislature 
should  have  no  power  to  deal  with  them  in  the 
matter  of  salary. 

Mr.  BASCOM  followed.     He  should  not  be  de- 
terred from  doing  his  duty,   if  gentlemen  did  un- 
dertake here  to   asperse  (he  motives  of  those  who 
differ  from  them.     He  did  not  come   here  with  a 
popularity  halter  in  his  pocket,  looking  after  pop- 
ularity horses;  and    he  regretted  that   gentlemen 
could   riot  vote  in  a  minority  on   such  a  question, 
:hougb  it  was  a  silent  vote,  without    having  sunn 
mputations  cast  in   their   leeth,     He  voted   with 
he  thirteen  in  favor  of  the  amendment  just  nega- 
tived ;  arid  because,  he  was  not  w -illinj?  to  give  the 
lower  to  increase  salaries  and  withhold  the  power 
o  diminish  also.     The  control  of  this  whole  mat- 
er of  salary  he  would  leave  to  the  legislature,  let 
gentlemen  denounce  the  motive  tor  such  a  vote  as 
hey  would.     He  had  another  reason  tor  voting  to- 
trike  out  the  clause  in  question.     It  was  because 
heie  was   no   prohibition*  in  this    article  against 
udges  receiving  fees  or  perquisites.     Had  the  ju- 
iciary  committee  adhered  to    their  decision,  and 
eported  such  a  clause,   he  should  not    have  made 
•var  upon  this  section.     He  opposed  the  principle 
f  having  a  minimum    salary.     It  was   based  only 
n  the  assumption   that  the  judges  would    have  a 
tinted  compensation,  and  that  we  were  sent  here 
>  see  to  it  that  public  officers  did  not  do  injustice 
o  themselves    in    the   matter  of  compensation  — 
tfuch  more  watchfulness,  he  ?pprehended.  would 
e  required  to    prevent  them  from  getting   more 
lan  they  should.     Unless  this  section  was  amen- 
ed  as  he  desired,  he  should  move    to   strike  out 
he  whole  of  it,  and  insert  the  13th  section  of  his 
plan — which  provided  for  a  fixed  salary,    without 
fees  or  perquisites,   alterations  of  salary  to   affect 
only  those    to   be  chosen  after   such  alteiafion  — 
travelling  expenses  to  be  allowed  to  a  judge  in  one 
specified  case 

Mr.  BROWN  said  injustice  was  done  to  this 
proposition  of  the  gentleman  from  Herkimer — as 


one  object  was 


>rovide  against  an 


specifically  to  pi 

increase  of  salary  taking  effect  during  the  term  of  a 
judge.  The  proposition  was  not  his  own.  He 
was  in  favor  of  another  provision  like  that  sug- 
gested by  Mr.  HOFFMAN — and  such  an  one,  he 
understood,  would  be  offered.  The  minimum  he 
would  have  a  liberal  and  just  one,  such  as  would 
command  the  very  best  talent  in  the  state.  He 
was  not,  with  the  gentleman  from  Genesee,  fo* 
cutting  down  salaries  to  the  very  lowest  point. 

The  debate  was  continued  bv  Messrs.  RICH- 
MOND, BROWN,  WATERBURY  and  BRUCE 
when  the  question  being  taken,  Mr.  LOOMIS 
amendment  was  rejected. 

Mr.  W.  H.  SPENCER  then  moved  to  amend 
so  as  to  provide  that  the  law  fixing  salaries,  once 
passed,  should  not  be  altered  oftener  than  once  in 
ten  years — or  after  the  taking  of  the  census.  Lost. 

Mr.  PERKINS  moved  to  provide  that  no  law 
ncreasing  or  dimifiishing  salaries  shall  take  ef- 
fect within  two  years  of  its  passage.  Lost. 

Mr.  COOK  moved  to  add  this  proviso  in  lieu  of 
the  original — that  the  salary  of  no  judge  of  the 
supreme  court  or  court  of  appeals  shall  be  increas- 


779 


ed  or  diminished  during  his  continuance  in  office 
Mr.  WHITE  moved  to  amend  so  as  to  provide 
that  the  salary  of  a  judge  should  not  be  less  than 
per  annum — and  which  shall  not  be  increas- 
ed or  diminished  during  his  continuance  in  office 

Mr.  SALISBURY  moved  to  fill  the  blank  with 
JO.     Mr.  WHITE,  $3,000.     Mr.  NICOLL 
$.2,500.     The  question  was  first  put  on  $2,000  as 
the  minimum,  and  lost,  ayes  18,  noes  73,  as  fol- 
lows : — 

AYKS— Messrs.  F.F.  Backus,  Bouck,  Hoffman,  Jones 
Kennedy,  Maxwell,  Morris,  Murphy,  Nicoll,  O'Conor 
Peimiman,  Hiker,  Ruggles,  Stephens,  Tallmadge,  J.  J 
Taylor,  Vache,  White— 18. 

NAYS— Messrs.  Angel,  Archer,  Ayrault,  H,  Backus 
Riker,  Bascom,  Bowdish;  Bray  ton,  Brown,  Bruce,  Burr 
R  i  a-nbell,  jr,  Candee,  Clark,  Cook,  Cornell,  Crooker 
Cuddeback,  Dana,  Dodd.  Dorlon,  Dubois,  Flanders,  Geb- 
hard,  Graham,  Greene,  Harris,  Harrison,  Hare,  Hawley 
Hotehkiss,  A.  Huntington,  Hutchinson,  Keinan,  Kingsley 
Kirkland,  Mann,  Marvin,  Miller,  Nellis,  Nicholas,  Parish 
Patterson, Perkins,  Powers.President.Rhoades.Richmond.s 
John,  Salisbury,  Sanford,  Shaver,  Shaw,  Sheldon, E.  Spen- 
cer, W.  H.  Spencer,  Stanton,  Stetson,  Stow,  Strong,  Taft 
W.Taylor,  WHrren.Waterbury,  Willard,  Witbeck.Wood 
Worden,  A.  Wright,  Yawger,  Young,  Youngs — 73. 

And  next  on  $'2,500. 

Mr.  TALLMADGE  preferred  not  to  name 
any  sum,  but  to  leave  the  whole  matter  to  the 
Legislature — and  hence  he  should  vote  against 
filling  the  blank  with  any  sum.  Others  proba 
bly  voted  against  $3,000  on  the  same  ground 
There  was  therefore  no  use  in  trying  to  fill  the 
blank,  when  a  majority  probably  were  against  the 
whole  amendment. 

Mr.  W  H.  SPENCER  was  also  opposed  to 
filling  the  blank  with  any  sum. 

The  Convention  refused  to  insert  $2,500,  ayes 
27,  noes  61; ,  as  follows:— 

AYES — Messrs.  Bouck,  Brown,Candee,  Dorlon,Dubois, 
Harrison,  Holi'man  Jones,  Kingsley,  Mann,  Maxwell,  Mil- 
ler,  Morris,  Murphy,  Nellis,  Nicoll,  O'Conor,  Penniman, 
Perkins,  Powers,  Rhoades,  Ruggles,  Sanford,  Stephens,  J. 
J.Taylor,  W.  Taylor,  Vache,  White— 27. 

NOES— Messrs.  Angel,  Archer,  Ayrault,  F.  F.  Backus, 
H.  Backus,  Kaker  Bascom, Bowdish,  Brayton,  Bruce,  Burr, 
R.  Campbell,  jr.,  Clark,  Conely,  Cook.  Cornell,  Crooker, 
CudJeback,  Dana,  Dodd,  Flanders,  Gebhard,  Graham, 
Greene,  Harris,  Hart,  Hawley,  Hotchkiss,  A.  Huntington, 
Hutchinson,  Kennedy,  Kernan.Kirklaud.Marvin,  Nicholas, 
Parish,  Patterson,  President,  Richmond,  Riker,  St.  John, 
Salisbury,  Shaver,  Shaw,  Sheldon,  E.  Spencer,  W.  H. 
Spencer,  Stanton,  Stetson,  Stow,  Strong,  Taft, Tallmadge, 
Warren,  Waterbury,  WHlard,  Witbeck,  Wood,  A. Wright, 
Yawger,  Young.  Youngs— 62. 

Mr.  WHITE  then  withdrew  his  proposition. 

Mr.  COOK'S  amendment  was  then  adopted, 
75,  to  11 — and  the  sectien,  as  amended,  was 
agreed  to. 

The  Convention  then  took  a  recess. 


AFTERNOON  SESSION. 
The  seventh  section  was  read,  as  follows : — 
(j7.  They  shall  not  hold  any  other  office  or  public  trust. 
All  votes  lor  either  of  them  for  HHV  elective   office,    (ex- 
ccpt  that  of  justice  of  the  supreme  court,  or  judge  of  ap- 
peals,)  given  hy   the  legislature  or  the  people,  shall  Jx; 
void.     Tn-y  shall  njt  exercise  any  power  of  appointment, 
except  in  licensing  practitioners  in  their  courts. 

Mr.  BROWN  moved  to  amend  by  striking  out 
all  after  the  word  "  appointment." 

Mr.  O'CONOR  suggested  the  addition,  after  the 
word  appointment,  of  these  words  : — '*  But  may 
be  authorised  to  appoint  trustees,  receivers,  audi- 
tors, referees,  elisors,  capers,  and  other  agents,  to 
perform  duties  in  any  pending  suit  or  matters, 
and  to  license  counsellors  and  attorneys."  This 


would  allow  the  legislature,  whilst  they  deprived 
the  judge  of  all  patronage,  to  allow  him  to  ap- 
point such  assistant  officers  as  might  be  necessary 
in  the  progress  of  a  cause.  As  to  the  power  to 
license  attorneys,  &c.,  that,  under  his  amendment 
would  depend  entirely  on  the  legislature. 

Mr.  NICOLL  suggested  that  the  entire  clause 
should  be  struck  out.  The  only  patronage  the 
courts  had  was  the  appointment  of  clerks,  and  if 
their  appointment  wcs  provided  for  in  another 
manner,  there  was  no  necessity  for  enumerating 
all  these  officers. 

Messrs.  KIRKLAND  and  TAGGART  took  the 
same  view  of  the  question  and  \ 

Mr.  O'CONOR  waived  his  suggestion,  saying 
that  the  entire  clause  had  better  be  struck  out. 

Mr.  MURPHY  alluded  to  his  resolution  of  en- 
quiry offered  at  an  early  stage  of  the  session,  into 
the  propriety  of  providing  in  the  constitution  that 
no  other  duties  should  be  assigned  to  a  judge  than 
those  which  wrere  strictly  judicial — saying  that 
he  intended  by  that  to  reach  not  merely  the  ap- 
pointment of  clerks  but  all  other  duties  which 
the  legislature  had  thrown  upon  judges.  Some 
such  general  provision,  he  urged,  would  be  all 
that  was  necessary  to  reach  the  end  which  these 
amendments  had  in  view.  He  had  also  offered  a 
resolution  of  enquiry  into  the  propriety  of  incor- 
porating into  the  institution  a  prohibition  of  all 
inspection  laws,  and  against  licensing  any  par- 
ticular calling,  business,  or  profession.  He  was 
still  of  that  opinion,  though  he  would  not  deprive 
judges  of  the  power  of  excluding  improper  per- 
sons from  practicing  in  their  courts.  What  he 
objected  to  was  the  power  of  conferring  affirma- 
tively the  power  to  practice. 

Mr.  STRONG  moved  by  way  of  amendment,  to 
strike  out  the  words"  except  licensing  practition- 
ers in  their  courts,"  and  inserting  : 

1  Nor  shall  they  prohibit  any  citizen  from  practising  as 
attorney  and  counsellor  in  any  court,  except  lor  want  of 
good  moral  character." 

Mr.  S.  said  his  object  was  to  improve  the  charac- 
ter of  a  profession,  which  was  now  disgraced  by 
the  conduct  of  some  unworthy  members  of  it. 
He  would  have  all  of  them  stand  on  their  own 
bottoms,  and  not  on  a  mere  piece  of  parchment 
tied  with  a  blue  ribbon.  He  was  also  opposed  to 
any  power  to  grant  privileges  to  any  class  of  men 
— but  would  leave  suitors  to  choose  their  own 
counsel  as  they  could  now  their  own  physician" 

Mr.  BROWN  urged  that  we  should  not  leave 
this  matter  open,  as  proposed,  but  should  affirma- 
tively prohibit  the  exercise  by  judges  of  all  power 
of  appointment  to  public  office,  and  of  all  patron- 
age whatever.  As  to  the  power  of  licensing  at- 
torneys, he  cared  nothing  about  it. 

Mr.  PATTERSON  said  the  principal  object  of 
the  judiciary  committee  in  inserting  this  clause, 
was  to  prohibit  judges  from  appointing  their 
clerks.  He  suggested,  therefore,  that  it  would 

better  to  strike  out  all  after  the  word  "  void" 
— and  then  have  a  separate  section  to  this  effect  : 
"  The  legislature  shall  provide  bylaw  for  the  election 
of  one  or  more  clerks  ot  the  supreme  court." 

Mr.  CROOKER  hoped  the  profession  would  ex- 
ercise a  becoming  liberality  and  vote  for  Mr. 
STRONG'S  proposition. 

Mr.   WHITE  proposed  the  following  addition 
:o  Mr.  STRONG'S  amendment : 
'•  And  the  ability  to  read  and  write." 


780 


Mr.  LOOMIS  did  not  want  the  protection  of 
the  constitution  thrown  over  his  profession  as 
such,  but  he  could  not  assent  to  having  a  provi- 
sion in  the  constitution  which  would  prohibit 
the  courts,  composed  of  high  public  officers,  from 
preventing  men  who  were  totally  unfit  to  advise 
them  upon  questions  of  law,  or  to  be  of  any  ser- 
vice to  them,  or  to  clients-,  from  practising  in 
them.  It  was  not  the  profession  that  were  inter- 
ested but  the  public,  in  the  despatch  of  business 
in  the  courts,  and  in  their  character.  He  could 
not  yield  to  any  paltry  prejudices  of  this  kind, 
nor  stultify  himself  by  the  adoption  of  such  a  pro- 
vision as  this.  Let  it  remain  open  for  the  legis- 
lature to  provide  for;  and  if  they  make  such  a 
law,  and  find  it  to  be  unwholesome,  they  can  the 
next  year  abolish  it.  It  will  not  be  so  if  made 
permanent  in  the  constitution. 

Mr.  WATERBURY  hoped  this  amendment 
would  take.  Let  every  man  who  had  a  lawsuit 
look  up  the  man  that  he  chooses  to  take  care  of 
his  rights.  He  had  no  idea  of  conferring  on  the 
profession  the  exclusive  privilege  of  practising 
in  the  courts,  any  more  than  he  would  grant  ex- 
clusive privileges  to  any  other  calling. 

Mr.  CROOKER  looked  upon  these  special  li- 
censes to  practice  law  as  on  a  par  with  licenses 
to  sell  ardent  spirits.  They  were  designed  for 
the  protection  of  the  public — but  if  the  public 
desired  to  play  with  edge  tools,  let  them  do  it, 
and  cut  their  fingers  if  they  chose. 

Mr.  SWACKHAMER  sustained  Mr.  STRONG'S 
proposition  at  some  length. 

Mr.  BASCOM  would  be  obliged  to  vote  against 
the  motion  as  it  stood ;  but  if  one  should  be  made 
to  sweep  away  all  the  privileges  now  enjoyed  by 
his  profession,  he  would  go  for  it.  It  would 
seem  invidious  to  apply  this  principle  only  to 
those  who  are  to  enter  the  profession  hereafter. 

Mr.  HOFFMAN  said  if  gentlemen  would  come 
down  to  the  question  whether  they  would  recog- 
nize any  such  profession  or  office  as  a  lawyer's, 
doctor's,  or  teacher's  in  schools,  he  might  not  find 
any  difficulty  in  voting  with  them  ;  because  he 
knew  that  in  a  few  years  they  would  be  obliged 
to  come  back  to  the  present  system.  There  must 
be  such  a  class  of  men  as  lawyers,  and  the  only 
question  was  how  they  were  to  be  appointed.  He 
preferred  the  present  mode  of  appointment  by  ex- 
amination, (although  he  confessed  that  he  regard- 
ed the  rules  of  examination  as  illiberal,  because 
it  supposed  that  study  in  a  certain  place  for  a 
given  period  gave  the  necessary  skill,)  because 
by  it  the  appointments  could  not  be  made  parti- 
zan  favors,  and  did  not  enter  into  politics  at  all. 

Mr.  BROWN  opposed  Uie  amendment.  He  was 
not  in  favor  of  the  rule  winch  required  seven 
years  study ;  there  were  many  things  which  re- 
quired to  be  liberalized ;  but  he  could  have  no- 
thing to  do  with  the  amendment  of  the  gentle- 
man from  Monroe.  He  would  be  found  joining 
in  no  miserable  cry  against  lawyers  as  a  profes- 
sion. 

Mr.  STRONG  withdrew  his  first  amendment, 
and  offered  the  following  in  its  place  : 

"  Any  male  citizen  of  tha  age  of  21  years,  of  good  mo- 
ral character,  and  who  possesses  die  re(j incite  qualifications 
of  learning  and  ability,  shall  be  entiUed  to  admission  to 
practice  in  all  the  courts  of  this  State.  ' 

Mr.  MURPHY   combatled  the  views  of  Mr. 


HOFFMAN  as  any  thing  but  the  views  of  a  reform- 
er ;  and  he  denied  that  (in  reply  to  Mr.  BROWN) 
the  effect  of  this  proposition  would  be  injurious 
to  the  profession,  or  that  all  those  who  voted  for 
it,  joined  in  any  miserable  cry  against  lawyers. — 
He  regarded  it  as  calculated  to  rid  the  profession 
of  a  class  who  by  virtue  of  their  parchment  and 
blue  ribbon  only,  were  admitted  to  practice— (for 
the  examination  was  a  mere  form) — and  through 
whose  ignorance  or  negligence  many  a  just  cause 
had  been  lost.  He  preferred  to  leave  suitors  to 
choose  their  own  counsel  instead  of  being  forced, 
as  they  often  were  now,  to  employ  ignorance  or 
indolence,  or  both,  and  suffer  all  the  consequen- 
ces. 

Mr.  WATERBURY  sustained  the  amendment 

Mr.  TAGGART  moved  the  previous  question, 
and  there  was  a  second. 

The  main  question  was  ordered  to  be  put,  when 
the  question  upon  the  amendment  of  Mr.  STRONG 
was  taken  by  ayes  and  noes  and  carried,  ayes  60, 
noes  17. 

Mr.  PATTERSON  thought  it  was  preposterous 
to  have  any  such  tiling  in  the  constitution,  and 
moved  to  strike  out  what  had  just  been  inserted. 

This  was  ruled  out  of  order. 

Mr  BROWN  moved  to  insert  after  "appoint- 
ment," the  words  "  to  public  office."  Agreed  to. 

Mr.  TALLMADGE  moved  to  alrike  out  the 
first  sentence,  and  insert,  «« The  judges  of  the 
court  of  appeals  and  the  justices  of  the  supreme 
court  shall  not  be  elected  or  appointed  !o,  or  hold 
any  other  office  or  public  trust  during  (he  term  lor 
which  they  shall  respectively  have  been  elected." 

Mr.  KIRKLAND  believed  this  was  going  far- 
ther than  the  Convention  was  prepared  to  go  at 
this  time.  In  effect,  it  would  disfranchise  the 
judges  for  a  certain  time,  it  from  any  cause  they 
should  resign  before  the  close  of  their  term. 

Mr.  J.  J  TAYLOR  hoped  the  amendment  would 
prevail.  In  this  way  alone  could  judges  be  pre- 
served from  becoming  partiz.ms.  If  allowed  to 
take  office  at  any  time  they  chose  to  resign,  they 
might  lay  their  plans  while  on  the  bench,  and 
only  occupy  it  from  motives  of  ambition  and 
aggrandizement. 

Mr  BASCOMjj  apprehended  the  object  of  the 
mover  of  the  amendment,  woo  Id  not  be  attained 
by  its  adoption.  He  thought  these  officers,  aa 
well  as  others,  should  have  every  inducement  to- 
discharge  their  duties  well. 

Mr.  A.  W.  YOUNG  feared  that  those  least 
qualified  for  the  office  would  be  the  mo^t  likely  to 
hold  on.  He  thought  the  amendment  a  good  one, 
and  hoped  it  would  be  adopted. 

Mr.  TALLMADGE  desired  to  place  the  judi- 
ciary beyond  the  reach  of  offers  of  place  or  pro- 
motion either  at  the  hands  of  the  Executive  or 
the  legislature.  He  would  have  a  judge,  when 
he  accepted  office  to  devote  himself  strictly  to  hi* 
duties,  instead  of  being  approachable  by  the  dis- 
pensers of  patronage  or  place.  In  no  other  way 
could  we  have  a  pure  bench.  The  judge  must  not 
be  looking  out  for  promotion  during  his  term,  if 
we  would  have  him  attentive  to  his  duties  rather 
than  to  politics. 

Mr.  BROWN  said  this  identical  proposition 
was  before  the  judiciary  committee  and  rejected. 
The  effect  of  it,  if  adopted,  would  be  this.  If 
a  man  should  be  elected  a  judge  of  the  supreme 


781 


court,   no   matter   what  his  eminent  abilities  for 

other  stations  might  be,  however  much  the  rouu- 

try  naight  need  thrsc  scr\  ires,    hero    would  be  a 

-fitntional  prohibition  against  appointing  him 

!l     il     Si;iti(>!l     I'<M-      ''ij:1 

TALLMADGE "replied,     IT.-   did   not  be- 
li.-vi'    (n.'se  -10  judges    would  so  monopolize  the 
!  (it  Ihe  state  that  no  one  would  be  found  to 
discharge  the  dntirs  of  other  oU 

Mr.  PATTERSON  said  the  committee  suppos- 
ed they  had  made  ample  provision  against  elec- 
tioneering judges  in  this  7th  section.  He  point- 
ed c.ut  objections  to  the  amendment.  A  judge 
wlio  had  been  in  office'  only  a  year  might 
fiicted  witli  sickness  which  might  be  so  protrac- 
ted as  to  induce  him  to  resign.  Then  this  amend- 
ment would  utterly  preclude  the  people  from 
electing  him  to  any  office  until  the  expiration  of 
eight  years.  He  could  sanction  no  such  principle. 

Mr.  W.  TAYLOR  hoped  the  constitution  we 
should  adopt  would  confer  no  exclusive  privilege 
upon  any  class  of  citizens,  nor  impose  any  unjust 
restrictions  upon  any.  He  deemed  this  an  unjust 
and  uncalled  for  restriction. 

The  amendment  of  Air.  TALL  MADGE  was 
negatived,  as  follows: 

AYF.S— Messrs.  Allen,  F.  F.  Backus,  Cook,  Cornell, 
Gardner,  Mar. ison,  Holiman.  Jones,  Kennedy,  Mann,  Mar- 
vin, Morris,  Nicholas,  IVnmman,  IVrkins,  Richmond,  Hi- 
ker, Shaw,  Sheldon,  Swackhamer,  Taft,  Tallmadge,  J.  J. 
Taylor.  Vache,  Waterbury,  Wood,  Yawger,  Young.— 23. 

NOES— Messrs.  H.  Backus,  Bascom,  Bray  ton,  brown, 
Bruce.  Brundage.  Burr,  R.  Campbell,  jr.,  Candee.  Clark, 
Concly,  Crooker,  Cuddeback,  Dana,  Dodd,  Dorlon.  Du- 
bois.  Flanders,  Graham,  Gn-ene,  Harris,  Hart,  Hawley, 
HotehkLs-,  A.  T'undnsjton,  Kernan,  Kingsiey,  Kirkland, 
Loomi.s,  Mc»i'.,  Maxwell,  Miller,  Nellia,  Nicoll,  Parish, 
Patterson,  Power.-,  President,  Rhoades,  Ruggles,  Salisbu- 
ry, Sun  ford,  Shaver,  W.H.  Spencer,  Stanton,  Stevens,  Stet- 
son, Taggsrt,  W.  Taylor,  Tilden,  Van  Schoonhoven, 
Warren,  White,  Worden,  A.  Wright,  W.  B.  Wright— 55. 

Mr-  MANN  moved  to  amend  the  amendment 
of  Mr.  STRONG  by  inserting  the  word  "  white, "so 
that  it  would  read"  any  white  male  citizen,"  &c. 

AJr.  S TET.SON  moved  the  pieviuiis  question  on 
the  sec' ion  and  it  wus  seconded. 

The  7th  section  was  adopted  as  amended. 

The  8th  section  was  tht-n  read  ur.d  adopted  as 
follows: — 

{;  8.  The  classification  of  the  justices  ot  the  supreme 
court,  the  times  and  places  o:  holding  the  linns  of  the 
court  oi  appeals,  and  ttte  general  and  special  terms  of  the 
supreme  court  within  the  several  districts,  and  the  circuit 
courts  an>!  ourts of  oyer  and  terroiner  withto  the  several 
countius,  shall  be  provided  for  by  1  .w. 

TheOth  section  was  then  read: — 

*)  9.  The  testimony  in  equity  cases  shall  be  taken  before 

I'ige,  who  shall  hear  and"  d»cide  the  case  in  the  same 

manner  as  testimony  is  taken  upon  the  trial  of  an  iisue  at 

law. 

.Mr.  BROWN  < -fi'-red  the  following  amendment, 
to  come  in  at  the  tnd  of  th^  section: 

"  Aijdthe  legislature  may  provide  for  the  trial  of  issues 
of  fact  in  ah  !",v  a  jury." 

Mr.  HARRIS  deemed  the  section  imperfect  as 
it,  stood,  and  he  uflered  the  following  as  a  substi- 
tute  theivfiT  :  — 

^  9.  The  oflice  of  master  and  examiner  in  chancery  are 
abolished  The  testimony  ia  equity  <-a-es  sh  ill  lie  tak**a 
before  the  judge  who  shall  hear  and  decide  the  same  ;  but 
the  legislature  m,i  law  lor  tin-  examinational 

foreign  and  distant  witnesses,  and  the  taking  ol  testimony 
conditionally,  and  for  the  reference  of  any  question  or 
caim;t<j;m  auditor  or  auditors,  referee  or  reierees,  upon 
special  application,  or  by  content  ol  parties. 


Air.  NICOLL  thought  we  had  better  leave  all 
the  detail  of  this  matter  to  the  legislature.  All 
thai  was  necessary  w*s  to  provide  that  testimony 
in  chancery  cases  should  be  taken  in  open  court. 

Mr.  CROOKER.  was  also  opposed  to  the  section 
as  it  stood. 

Mr.  HOTCHKISS  moved  to  adjourn.  Agreed 
to— 3S  to  35. 

Adj.  to  8i  to-morrow  morning. 

TUESDAY,  (llth  day}  September  1. 

Prayer  by  the  Rev.  Dr.  SFRAGUK. 

The  PRESIDENT  laid  before  the  Convention 
a  communication  from  the  Comptroller  relative 
to  the  sums  paid  to  the  judges  of  the  several  courts 
of  oyer  and  terminer  in  this  state  for  services  un- 
der part  4,  chap.  1,  title  1,  sec.  13  of  the  revised 
statutfl 

DAY  OF  ADJOURNMENT. 

Mr.  STEPHENS  called  for  the  consideration 
of  his  resolution  offered  on  Saturday,  directing 
that  the  Convention  do  adjourn  sine  die  on  the 
first  Saturday  in  October. 

Mr.   STRONG  wanted  to  adjourn  on  Monday. 

Mr.  CROOKER  moved  to  insert  the  last  Tues- 
day in  September  instead  of  the  first  Saturday  in 
October.  Accepted  by  the  mover. 

•Mr.  STRONG  moved  to  insert  12  o'clock  on 
that  day.  Accepted  by  the  mover. 

Mr.  BURR  said  he  doubted  if  they  would  be 
ready  to  adjourn  on  that  day. 

Mr.  NICOLL  called  for  the  ayes  and  noes. 

Mr.  STRONG  wished  a  day  fixed— if  they  were 
not  ready  on  that  day,  they  could  rescind  this  re- 
solution. The  people  wanted  at  least  a  month 
to  consider,  what  we  have  been  four  months 
about. 

Mr.  CROOKER  wished  they  could  stop  this  in- 
terminable talking  in  some  way  ;  and  he  thought 
this  would  be  the  best,  viz :  to  fix  a  day  to  ad- 
journ, and  then  members  would  certainly  go  to 
work  in  earnest  and  vote.  Within  even  the  last 
few  days  since  they  had  the  judiciary  report  in 
the  house,  and  when  the  time  was  come  for  their 
voting,  they  had  had  four  speeches  in  one  day 
from  one  gentleman  on  one  subject  and  five  from 
another.  Now  was  this  not  a  little  too  bad,  and 
many  members  could  hardly  control  themselves 
to  listen. 

Mr.  YOUNG  hoped  they  would  not  now  fix  a 
day.  He  moved  to  lay  the  resolution  on  the  table. 

Mr.  WHITE  called  the  ayes  and  noes  on  this. 
They  were  ordered  and  resulted  ayes  31,  noes  57, 
as  follows : 

A  \  KS— -Messrs.  Archer,  Ayrault.  Baker,  Bascom, 
Brown.  Brundage,  Candee,  Clark,  Conely,  Cuddeback, 
Dana,  Graham,  Hart,  Hotchkiss,  Kennedy,  Loomis,  .\;ann, 
Xelns,  President,  Salisbury,  Sai.ibni,  Shaver,  Shaw,  W. 
11.  Spencer,  Swackhamer,  Townsend,  Van  Schoonhoven, 
Willard,  A.  Wright,  Yawger,  Young-  31. 

K(1E5— Messrs.  Angel,  F.  F.  Backus,  H  Backus,  Ber- 
gen, Bowdish,  Brayton,  Bruce,  Bull,  Burr,  Cambreleng, 
K.  <  arnpbell.jr.  Cook.  Crooker,  Dodd.  Doilen.  Dubois, 
Klander*,  Greene,  Harrison,  Hawley,  Hoffman,  A.  Hunt- 
ington, HutcMnson,  Hyde,  Jones,  Kemble,  Kernan.  Kings- 
ley,  Khkland,  Marvin,  Maxwell.  Aiilier,  Nicholas,  .\i- 
coll,  O'Connor,  Pan  ,  lowers.  Richmond,  l!i- 

ker,  St.  John,  Sears,  E  Spencer,  Stahtta,  Stephens,  Stet- 
son, Stow,  Strong,  Taft,  J.  J  Tay:or,  Warren,  Waicrbu- 
ry,  White,  Wood,  Worden,  W.  B.  Wright,  Youngs-  bl. 

So  the  motion  to  lay  on  the  table  was  lost. 
Mr.  BROWN  moved  to  amend  that  resolution 
and  make  it  the  first  Tuesday  in  October ;  viz.  the 


782 


6th.  That  would  give  the  people  four  weeks  t< 
reflect  on  it ;  and  that  would  be  time  enough — fo: 
the  people  knew  all  about  their  labors  as  the] 
went  along ;  and  if  members  would  only  sit  a  lit 
tie  later  to-night  and  to-morrow  night,  he  felt  sa 
tisfied  they  could  get  through  the  judiciary  re 
port  by  Wednesday  night,  and  take  up  the  finance 
report  on  Thursday. 

Mr.  HOFFMAN  said  that  the  convention  had 
made  as  much  progress  with  their  work  as  any  se 
of  men  on  God's  earth  could  reasonably  be  expect- 
ed to  do.  He  did  not  want  them  to  hurry,  and  so 
do  the  work  badly ;  but  to  keep  cool,  (if  they 
could  keep  cool  this  very  hot  weather,)  and  to  ac 
like  men  of  sense.  The  charge  of  delay  was  mosi 
baseless.  He  hoped  the  convention  would  not  be 
hurried  on  this  or  any  other  occasion,  and  be  com- 
pelled to  do  the  very  mischief  which  hurry  always 
brings  with  it. 

He  admitted  there  were  three  or  four  subjects 
before  them  which  must  be  acted  upon.  If  they 
separated  without  settling  them  the  convention 
would  have  done  nothing.  If  they  could  not  set- 
tle the  disputed  question  of  finance — if  they  could 
not  settle  the  disputes  relative  to  banks — if  they 
could  not  adopt  some  general  rules  relative  to 
corporations — if  they  could  not  defend  the  public 
against  the  extravagance  of  municipal  bodie*s  hav- 
ing the  taxing  power,  then  the  result  of  their  la- 
bors would  be  an  abortion.  But  notwithstanding 
all  this  he  would  again  say  to  gentlemen  that  if 
they  would  be  deliberate,  if  they  would  keep  cool 
— if  they  would  act  herewith  ordinary  common 
prudence,  they  would  succeed  by  the  day  mention- 
ed for  the  adjournment  by  the  gentleman  from  Or- 
ange. He  knew  the  public  had  examined  what 
has  been  done  here  completely— they  get  along 
with  it  as  fast  as  the  convention.  They  would  not 
take  the  people  by  surprise  if  they  continued  to 
sit  to  the  day  which  the  amendment  would  fix. 

The  people  read  the  discussions  of  this  body  so 
far  as  they  are  pertinent— they  form  their  opi- 
nions on  the  subject— arid  on  the  first  of  October 
they  will  not  be  taken  by  surprise. 

Mr.  BROWN'S  amendment  was  then  put  and 
carried,  without  a  division. 

Mr.  STEPHENS'S  resolution  as  amended  was 
then  carried. 

So  the  Convention  decided  to  adjourn  on  Tues- 
day the  6th  of  October  at  12  o'clock  at  noon. 

Mr.  WHITE  offered  the  following  :— 

Kesolved,  That  it  be  referred  to  a  select  committee  to 
consider  and  report  what  business  should  be  transacted  by 
thi>  Convention  before  its  adjournment;  and  that  said  com. 
mittee  be  also  instructed  to  consider  and  report,  what 
measures,  if  any,  should  be  adopted  in  case  it  shall  be 
found  impossible  to  consider  and  determine  upon  the  sev- 
eral important  reports  ol  standing  committees  which  have 
been  or  may  be  made,  at  a  sufficiently  early  period  to 
enable  the  Conveniion,  to  submit  at  the  ensuing  Novem- 
ber election,  the  result  of  its  deliberations  upon  such  re- 
ports. 

On  motion  of  Mr.  NICHOLAS  this  was  laid  on 
the  table. 

The  Convention  then  took  up  the  unfinished 
business,  being  the  reports  on 

THE  JUDICIARY  SYSTEM. 

The  question  was  on  the  amendment  of  Mr. 
BROWN  to  the  9th  section.  The  following  is  the 
section : 

Jj  9.  The  testimony  in  equity  cases  shall  be  taken  before 
the  judge  who  shall  hear  and  decide  the  case  in  the  same 


manner  as  testimony  is  taken  upon  the  trial  of  an  issue  at 

Mr.  BROWN'S  substitute  for  this  section  wag 
this:— "Provision  shall  be  made  bylaw  for  the 
taking  of  testimony  in  equity  cases  in  open  court 
in  the  same  manner  as  testimony  is  taken  upon 
the  trial  of  an  issue  at  law ;  cases  proper  for  a  re- 
ference may  be  referred  to  one  or  more  auditors 
or  referees  and  the  legislature  may  provide  for  the 
trial  of  issues  of  fact  in  all  proper  cases  by  a  jury." 

Mr.  TAGGART  objected  to  the  section  as  it 
stood,  and  offered  the  following  : 

$  13.  The  Legislature  shall,  by  law,  so  regulate  the 
practice  and  proceedings  in  all  courts,  that  every  party  to 
any  action  or  proceeding  may  have  any  remedy  or  relief 
to  which  he  may  be  entitled  in  reference  to  the  subject 
matter  of  such  action  or  proceeding  either  legally  or  equi- 
tably in  the  same  action  or  proceeding,  without  resorting 
to  any  other  action;  and  the  testimony  in  all  cases  shall  be 
taken  at  the  trial,  or  hearing  before  the  court,  referee  or 
referees,  except  such  as  may  be  taken  out  of  court  upon 
commission,  or  conditionally,  or  to  perpetuate  testimony, 
in  cases  provided  by  law. 

The  question  was  first  upon  the  proposition  of 
Mr.  BROWN. 

Mr.  KIRKLAND  said  the  phraseology  of  the 
amendments  would  not  accomplish  the  object 
contemplated  by  all  of  them.  It  would  require 
the  taking  of  testimony  in  all  cases  before  a  jury. 

Mr.  NICOLL  said  the  subsequent  clauses  shew     f 
that  such  a  construction  could  not  be  put  upon 
this  section,   as  seemed  to   be  supposed  by  Mr. 
KIRKLAND. 

Mr.  KIRKLAND  said  he  doubted  that,  and 
would  therefore  propose  to  amend  as  follows  : 

9.  Cases  both  in  law  and  equity  shall  be  tried  at  said 
circuit  courts;  and  without  a  jury  whenever  the  parties  in 
interest  in  a  suit,  and  the  judge  holding  the  circuit,  assent 
thereto.  Provision  shall  be  made  by  law  for  cases  in  law 
or  equity  not  properiy  triable  at  a  circuit  court.  Provi- 
sion shall  also  be  made  by  law,  for  the  peiformance  of  the 
duties  heretofore  performed  by  masters  in  chancery. 

Mr.  K.  said  that  by  a  section  of  this  sort,  the 
duties  would  be  distributed  among  various  agents. 
He  sent  up  his  proposition  as  containing  every 
;hing  that  was  to  be  desired,  and  as  not  liable  to 
any  misconstruction. 

Mr.  RICHMOND  thought  this  was  going  a  lit- 
le  too  much  into  detail.  Why  not  insert  a  clause 
n  the  Constitution  relative  to  the  mode  of  taking 
estimony  in  common  law  courts  (so  called)  in 
certain  cases. 

Mr.  LOOMIS  moved  to  strike  out  the  last  two 
ines  of  Mr.  BROWN'S  amendment.  The  legisla- 
ure  had  this  power  now,  and  it  was  useless  to  put 
his  clause  in  the  Constitution. 

Mr.  BROWN  had  inserted  the  last  words  in  or- 
der to  qualify  the  preceding  words.  He  hoped 
he  motion  would  not  prevail. 

Mr.  KIRKLAND  moved  to  amend  by  substitu- 
ing  "  Legislature  shall  provide,"  for  "  Legisla- 
ure  may  provide." 

Mr.  O'CONOR  thought,  the  use  of  the  impera- 
ive  term  "  shall"  would  be  highly  dangerous,  and  • 
mischievous. 

Mr.  NICOLL  thought  that  as  long  as  the  words 
'  in  all  proper  cases"  remain,  the  word  "  shall" 
lid  not  have  the  objectionable  bearing  complain- 
dof. 

Mr.  KIRKLAND  replied  and  explained  the 
[istinction  between  his  amendment  and  that  of 
Mr.  BROWN.  His  amendment  was  absolutely  ne- 
essary  to  induce  the  legislature  to  act  on  this  sub- 
ect. 


783 


Mr.  LOOMIS  rose  amid  loud  cries  ot  "ques- 
tion." He  contended  that  the  word  "shall" 
would  be  best. 

Mr.  O'CONOR  called  for  the  ayes  and  noes.— 
They  were  ordered. 

Mr.  MORRIS  did  not  like  the  amendment  of 
Mr.  BROWN,  and  he  would  read  a  section  which 
he  had  drawn  up  as  containing  in  a  condensed 
form  his  own  views  on  that  subject.  He  read  it 
as  follows: — "The  testimony  in  all  civil  cases 
shall  be  taken  in  the  same  manner  as  testimony 
is  taken  in  issues  at  law  subject  to  regulation  by 
law.  All  trials  of  issues  of  fact  will  be  tried  be- 
fore a  court  and  jury  except  when  parties  agree 
to  try  the  same  by  the  court  alone;  and  also  when 
the  cause  is  referred  by  an  order  of  the  court  ac- 
cording to  law."  Mr.  H.  went  on  to  say  that  this 
was  the  first  step  towards  amalgamating  these  two 
classes  of  causes  which  had  been  so  much  spoken 
of:  which  were  different  only  in  name  and  not  in 
substance  and  reality. 

The  question  was  then  taken  on  Mr.  KIRK- 
LAND'S  motion  on  striking  out  the  word  "  may'' 
and  inserting  "shall,"  in  Mr.  BROWN'S  amend- 
ment. It  was  carried,  ayes  60,  nays  36. 

The  question  then  recurred  on  Mr.  BROWN'S 
substitute  for  the  9th  section, 

Mr.  MARVIN  said  he  apprehended  that  the 
amendment  proposed  would  not  accomplish  the 
purpose,  and  that  it  would  give  rise  to  much  dif. 
ficulty.  Was  it  intended  that  all  equity  causes 
should  be  tried  by  a  jury  ?  The  amendment  pro- 
vided that  the  evidence  should  be  taken  in  open 
court,  in  the  same  marine"  as  testimony  is  taken 
upon  the  trir.-'  of  an  issue  at  law.  In  the  trial  of 
an  issue  of  tact  at  law,  a  jury  was  always  em 
ployed,  an  >  he  suggested  whether  the  amendment 
would  not  required  jury  in  all  equity  causes.  The 
object  desired  was  tne  hearing  ot  the  witnesses 
by  the  judge  who  was  to  make  the  decision,  and 
get  rid  of  taking  evidence  before  examineis.  But 
they  must  be  careful  not  to  prohibit  the  taking  ot 
the  evidence  ot  foreign  witnesses,  and  evidence  ot 
witnesses  conditionally.  The  power  to  issue  com- 
missions, &c.,  must  exist ;  and  Mr.  M.  read  a  sec- 
tion which  bethought  would  accomplish  the  pur 
pose,  and  which  abolished  the  offices  of  Master 
and  .Examiner  in  Chancery,  and  authorized  the 
reference  of  proper  cases  to  an  auditor  or  referee. 
Mr.  HARRIS  wished  the  House  to  adopt  the 
following,  which  had  been  prepared  by  Mr.  RUG- 
GLES,  and  which  he  thoyght  would  meet  all  cases 
of  taking  testimony  in  causes  alluded  to  and  re- 
lieve the  legislature  of  any  difficulty  in  constru- 
ing the  language  of  the  section : — 

"  The  testimony  in  equity  cases,  heard  on  pleadings 
and  proofs  shall  be  taken  before  the  .judge  who  shall  he 


the  case  in  the  same  manner  as  testimony  is  taken  upon 
the  trial  of  an  issue  at  law.  The  trial  may  be  by  or  with 
out  a  jury  according  to  the  nature  of  the  case,  and  as  may 
be  icscnbed  by  law.  Ca--es  proper  lor  ielt  rence  may  be 
relerred  to  one  or  more  auditors  or  relerees." 

Mr.  VAN  SCHULLNHOVEN  said  that  to  hav< 
trie  testimony  taken  in  opt  n  couit,  \\ould  necessa 
rily  involve  the  taking  of  it  befbie  a  jury.  Now 
he  wished  the  substitute  proposed  by  Mr.  BROWJ> 
to  be  voted  down,  in  order  to  have  either  the  pro 
position  of  Mr.  MARVIN  introduced,  or  that  which 
had  just  been  read  by  the  gentleman  i'rom  Albany 
(Mr.  HARRIS)  and  which  was  drafted  by  Mr.  RUG 
GLES,  in  order  to  avoid  any  misconstruction  of  the 
language. 


Mr.  BROWN  said  that  many  persons  thought 
hat  his  amendment  would  have  a  different  effect 
rom  what  Mr.  VAN  SCHOONHOVEN  thought  it 
vould  have;  and  that  was  the  difficulty.  He 
bought  the  difference  between  the  two  as  not 
vorth  the  five  minutes  they  had  spent  in  discuss- 
ng  it. 

Mr.  NICOLL  said  if  it  was  free  from  ambi- 
uity,  and  he  thought  it  was,  he  infinitely  pre- 
srred  the  proposition  of  Mr.  BROWN  to  any 
ther. 

Mr.  TILDEN  asked  if  the  effect  of  the  amend- 
ment was  to  abolish  the  office  of  masters  in  chan- 
;ery  ? 

Mr.  BROWN  said  it  would  only  abolish  the 
iffice  of  examiners  in  chancery. 

Mr.  STOW  said  that  if  they  (the  members  of 
he  Convention)  could  not  agree  as  to  what  was 
he  true  meaning  of  several  of  the  provisions  in- 
:erted  in  the  Constitution,  how  could  they  expect 
he  people  would  understand  them.  If 'they  in- 
ierted  an  error  in  the  Constitution,  it  would  be 
fatal;  but  if  the  legislature  erred,  they  could  cor- 
rect it.  It  was  an  important  consideration. 

The  question-was  then  taken  on  Mr.  BROWN'S 
amendment  for  the  9th  section. 

It  was  lost — 24  ayes ;  noes  not  counted. 

Mr.  HARRIS  offered  the  following,  which  was 
•ead : — 

^9.  The  testimony  in  equity  cases  heard  on  pleadings 
md  proofs,  shall  be  taken  before  the  judge  who  shall  hear 
he  case,  in  the  same  manner  as  testimony  is  taken  upon 
he  trial  ot  an  issue  at  law.  The  trial  may  be  by  or  with- 
out a  jury,  according  to  the  nature  of  the  case,  and  as  may 
be  prescribed  by  law.  Cases  proper  for  reference  may  be 
referred  to  one  or  more  auditors  or  referees. 

Mr.  MORRIS  moved  first  to  amend  the  origi- 
nal section  to  make  it  read  thus  : 

9.  The  testimony  in  all  civil  cases  shall  be  taken  in 
the  same  manner  as  testimony  is  taken  in  issues  at  law, 
subject  to  regulation  bylaw.  All  trials  of  issues  of  lacts  shall 
ae  tried  by  a  court  and  jury,  except  where  the  parties  shall 
agree  to  try  the  same  before  the  court,  or  where  the  same 
shall  be  relerred  according  to  law. 

Mr.  MORRIS  said  that  in  all  he  had  to  say  or 
do  upon  the  subject,  he  wished  utterly  and  thor- 
oughly to  abolish  all  distinction  between  law  and 
equity.  The  same  uniform  practice  should  be 
preserved  in  relation  to  both. 

Mr.  BASCOM  wished  to  introduce  his  propo- 
sition as  an  amendment  to  that  of  Mr.  MORRIS  ; 
it  accomplished  the  same^object  and  with  much 
less  of  verbiage — fewer  words. 

It  was  read  as  follows  : 

"  The  mode  of  trial  and  taking  of  testimony  in  all  clas- 
ses  of  civil  causes  shall  be  uniform,  as  near  as  may  be. — 
And  the  office  of  master  and  examiner  in  chancery  is  here- 
by abolished." 

The  CHAIR.  It  appears  to  be  carried,  cries 
of  "  a  count."  A  count  was  taken  and  it  was  lost. 
Ayes  33,  noes  37. 

O'CONOR  wished  to  offer  an  amendment  to  the 
9th  section,  so  as  to  make  it  read  : 

^  9.  The  testimony  in  equity  cases  shall  be  taken  in  like 
manner  as  in  cases  at  law." 

Mr.  HARRIS  here  read  an  amendment: 

(It  was  the  same  as  printed  alipve.) 

Mr.  O'CONOR  explained  the  effect  of  his 
amendment.  We  could  get  rid  of  all  these  diffi- 
culties by  a  simple  declaration  of  assimilation. 

Mr.  NICOLL  asked  Mr.  O'CONOR  if  under  the 
provision  just  offered  by  him  testimony  in  colla- 


784 


teral  proceedings  in  equity  cases,  and  in  matter 
of  accounts,  could  be  taken  out  of  court  as  at  pre 
sent. 

Mr.  O'CONOR  said  it  could. 

Mr.  NICOLL  then  said,  that  he  would  vote  fo: 
it. 

Mr.  O'CONOR'S  amendment  was  then  put  and 
carried  unanimously. 

Mr.  MANN  offered  the  following  amendmen 
to  the  9th  section : 

"The  offices  of  masters  and  examiners  in  chancery  are 
hereby  abolished." 

•  Mr.  MANN  said,  that  he  should  not  go  int 
any  lengthy  discussion  of  this  proposition,  he  of- 
fered it  with  the  expectation  that  it  would  suc- 
ceed, and  he  desired  to  have  a  direct  vote  upon 
it.  He  also  desired  to  know  if  this  Convention 
were  prepared  to  retain  the  host  of  officers,  who 
imposed  a  tax  upon  the  people  of  one  or  two  hun- 
dred thousand  dollars.  The  precise  amount  he 
would  not  undertake  to  state,  but  it  was  very 
large;  their  charges  and  expenses  to  litigants 
were  enormous,  and  could  be  dispensed  with. — 
As  he  desired  a  distinct  vote  on  the  question,  and 
wished  to  ascertain  what  members  were  in  favor 
of  continuing  this  host  of  judicial  offices,  he 
should  call  for  the  ayes  and  nays,  which  were 
ordered. 

The  PRESIDENT  then  said  that  the  amend- 
ment of  JVJr.  HARRIS  was  first  in  order. 

Mr.  HARRIS  said  it  had  been  disposed  of  by 
the  adoption  of  Mr.  O'CONOR'S  amendment.  All 
left  was  this,  "  that  the  offices  of  Examiners  and 
Masters  in  Chancery  should  be  abolished."  And 
this  had  just  been  offered  by  Mr!  MANN. 

Mr.  BROWN  said  you  could  not  so  frame  a  Con- 
stitution as  to  dispense  with  office  of  Masters  in 
Chancery  ;  that  is  you  must  have  some  officers  to 
do  those^duties  ;  the  legislature  could  abolish  the 
office  ;  but  if  this  ninth  section  passes,  as  propos- 
ed, there  will  be  nothing  for  them  to  do.  He  de- 
sired to  see  nothing  of  this  kind  in  the  Constitu- 
tion, though  he  would  go  with  all  of  them  in  di- 
minishing the  number  of  these  officers.  So  ar- 
range the  Constitution  that  there  shall  be  nothing 
for  these  officers  to  do. 

Mr.  BASCOM  said  he  could  now  understand 
why  his  amendment  providing  for  uniform  modes 
of  trial'and  taking  testimony  in  all  classes  of  civil 
causes,  as  far  as  might  be,  was  voted  down — be- 
cause it  also  proposed  the  abolishment  of  the  of- 
fices of  Master  and  Examiner  in  Chancery.  And 
he  was  glad  that  the  proposition  was  now  dis- 
tinctly presented,  and  that  the  ayes  and  noes  were 
ordered,  and  he  might  be  indulged  a  moment  up- 
on the  question.  It  was  so  generally  admitted 
that  we  have  made  such  provisions  as  to  the  taking 
of  testimony,  as  to  render  the  office  of  Examiner 
no  longer  necessary,  he  should  not  take  up  time 
upon  that  branch  of  the  subject.  The  office  of 
Master  was  entirely  unnecessary,  as  he  would 
show  by  a  reference  to  the  most  important  parts 
of  the  duties  of  that  officer.  Masters  make  sales 
of  real  estate,  by  order  of  the  court.  The  Sher- 
iffs, too,  discharged  the  same  duties,  and  he  pre- 
ferred that  the  .laTter  class  of  officers  should  dis- 
charge all  such  duties,  because  they  were  not  so 
influential  a  body  of  men  but  that  we  had  been 
able  to  keep  their  compensation  for  such  services 
within  comparatively  reasonable  bounds.  If  a 


mortgage  was  foreclosed  in  one  manner,  a  Master 
must  sell  the  premises— if  in  another,  the  Sher- 
iff, or  the  party,  or  his  attorney,  might  make  the 
sale.  In  1840,  the  Legislature  cut  down  the  fees 
of  Masters,  upon  mortgage  sales,  to  about  four 
dollars  ;  but  such  was  the  influence  of  this  horde 
of  officers,  distributed  throughout  the  state,  that 
the  next  Legislature  repealed  the  laws,  and  left 
them  to  receive  from  $25  to  $50,  for  merely 
bringing  down  the  hammer  upon  a  bid  and 
signing  a  deed.  This  was  one  of  the  numerous 
cases  in  which  they  received  enormous  fees  for 
trifling  services.  Another  part  of  their  duties 
was  to  state  accounts  between  parties  upon  mat- 
ters referred  by  the  court ;  now  a  standing  class 
officers  for  such  purposes  was  not  only  unneces- 
sary but  wrong.  The  court  would  often  require 
the  aid  of  accountants,  or  of  some  persons  for  this 
and  such  like  service.  If  the  subject  was  in  ref- 
erence to  a  piece  of  work  upon  a  canal  or  rail 
road,  as  to  quantity  or  value,  a  reference  to  an  en- 
gineer might  be  well,  if  it  was  in  relation  to  mer- 
cantile accounts,  the  aid  of  merchants  might  be 
most  desirable.  The  course  had  been  to  refer  all 
such  subjects  to  a  master  who  though  a  good  law- 
yer, would  have  no  particular  acquaintance  with 
the  subject.  An  English  Chancellor  upon  being 
pressed  to  refer  a  complicated  matter  of  merchants 
accounts  to  a  master,  opened  his  watch  and  ex- 
tricated its  machinery — and  said  do  you  think  I 
would  send  this  to  a  blacksmith  for  examination 
or  repair?  I  refer  this  matter  to  a  merchant  to 
examine  and  state  the  account.  We  have  provi- 
ded for  36  judges  to  be  salaried  at  from  2  to  $'3000. 
N"ow  unless  we  should  provide  for  retrenchment 
and  reduction  of  the  expenses  of  other  branches 
of  the  judicial  service,  the  people  would  repudi- 
ate the  whole  of  our  work,  as  thev  ought  to.  The 
abolishment' of  these  offices  would  save  a  large  a- 
mount  of  unnecessary  expenses. 

Mr.  BRUCE  said  there  were  in  this  state  at  pre- 
sent no  less  than  188  masters  in  chancery,  and 
10  less  than  168  examiners.  Now  the  people 
lad  distinctly  asked  to  have  these  men  or  their 
offices  abolished.  He  believed  they  all  under- 
stood this  matter,  and  he  therefore  moved  the 
arevious  question. 

The  previous  question  was  seconded,  and  the 
main  question  was  ordered  to  be  put.  The  ayes 
and  noes  having  previously  been  ordered, 

Mr.  NICOLL  called  for  a  division  of  the  ques- 
ion ;  to  take  it  first  on  abolishing  examiners  in 
Chancery  and  then  on  the  masters  in  chancery. 

Mr.  STRONG  said  that  such  a  short  amend- 
ment could  not  be  divided.  [Laughter.] 

The  CHAIR,  (Mr.  JONES  pro.  tern.)  said  it 
ould  be  divided. 

Mr.  DODD  asked  him  how  he  could  divide  it. 

Mr.  PATTERSON  asked  the  chair  what  would 
e  left  if  the  question  was  divided  ;  only  the  word 
'  masters." 

THE  PRESIDENT  (pro  tern.}  said  on  further 
eflection  he  thought  the  question  was  not  divisi- 
le. 

Mr.  MURPHY  rose  to  a  privileged  question — 
o  move  a  reconsideration,  to  explain  his  vote. 

Mr.  O'CONOR  asked  to  have  his  name  record- 
d. 

CLERK— Mr.  O'CONOR  is  recorded  absent. 

The  CHAIR  said  that  the  vote  having  been  an- 


785 


nounced,  and  the  section  declared  to  be  carried,  it 
svas  too  late  to  vote. 

One  or  two  members  having  said  that  they  had 
not  heard  their  names  called, 

Mr.  VAN  SCHOONHOVEN  said,  that  on  this 
subject  probably  several  gentlemen  had  not  heard 
their  names  called.  (Much  laughter.) 

Mr.  MURPHY  rose  to  a  privileged  question — 
moving  a  reconsideration  of  the  vote  just  taken — 
for  the  purpose  of  making  an  explanation.  The 
amendment  just  voted  upon  purports  to  abolish 
the  office  of  master  and  examiner  in  chancery. — 
Another  was  offered  yesterday  to  abolish  licensed 
lawyers.  He  thought  both  amendments  had  fail- 
ed to  accomplish  their  purpose.  Masters  and  ex- 
aminers were  only  abolished  in  name. 

Mr.  VAN  SCHOONHOVEN  raised  a  point  of 
order.  The  gentleman  had  no  right  to  argue 
this  question,  he  being  suffered  to  make  a  perso- 
nal explanation. 

The  CHAIR  decided  in  effect,  Mr.  MURPHY 
in  ord«r. 

After  some  further  discussion, 

Mr.  VANSCHOONHOVEN  appealed  from  the 
decision  of  the  Chair. 

Some  further  conversation  ensued  on  the  point 
of  order,  when  the  decision  of  the  Chair  was  sus- 
tained. 

Mr.  MURPHY  resumed.  After  remarking 
briefly  on  the  point  of  order,  he  said  he  was  in  fa- 
vor of  the  reform  which  this  resolution  proposed 
to  carry  out.  But  it  merely  abolished  the  office 
in  name,  but  retained  the  duties  to  be  performed 
by  some  other  officer.  He  had  no  desire  to  make 
the  promise  to  the  ear  and  break  it  to  the  hope 
What  he  wanted  was  substantial,  real  reform. — 
This  was  his  reason  -for  voting  in  the  negative, 
and  not  because  he  was  opposed  to  the  principle 

Mr.  VAN  SCHOONHOVEN  briefly  replied  to 
Mr.  MURPHY,  in  some  personal  allusions  to  the 
cause  which  lead  to  the  call  to  order. 

Mr.  BROWN  said  he  had  refused  to  vote  omthis 
last  question,  and  for  this  motive.  This  resolution 
simply  proposes  to  abolish  these  offices,  and  ac- 
complishes another.  The  true  way  of  abolishing 
them  was  to  provide  some  mode  of  performing 
these  duties.  If  a  proposition  should  be  intro- 
duced providing  for  the  abolition  of  these  offices 
and  also  of  their  duties,  he  would  go  for  it.  Be- 
fore an  institution  was  destroyed  something  mus' 
be  provided  to  take  its  place. 

After  some  further  conversation,  Mr.  MUR 
PHY  withdrew  his  motion. 

Mr.  TILDEN,  in  behalf  of  Mr.  TAYLOR,  offered 
the  following  amendment: 

"  The  legislature,  as  far  as  practicable,  shall  assimilate 
the  forms  ot  pleadings  and  the  mode  of  taking  tesumonj 
ou  trials  of  causes  at  law  and  in  equity." 

Mr.  T.  had  Irotu  The  beginning  favored  the  ide 
of  assimilating  the  proceedings  in  courts  of  law 
arid  equity.  He  was  one  who  believed  this  couk 
^be  done  by  cautious  and  gradual  legislation.  0 
this  character  he  thought  was  this  amendment 
Mr.  T. submitted  a  tew  turther  remarks concurrin 
mainly  'vii.h  Mr.  BROWN  and  Mr.  MURPHY,  as  t 
the  character  of  the  vote  just  taken  on  the  propo 
sition  t<>  abolish  masters  &c.  in  chancery. 

Mr.  FLANDERS  moved  an  amendment  to  re 
quire  the  legislature  to  revise  the  pleadings  an 
practice  in  all  courts  of  law  and  equity,  so  as  t 


ender  them  simple,  brief,  intelligible,  and  subject 
o  as  little  expense  as  possible. 

Mr.  CROOKER  said  if  all  this  was  to  be  done 
y  legislation,  the  convention  had  better  reconsi- 
er  the  90  days  limitation  of  the  session.     This 
work  if  done  at  all  should  be  by  a  commission. 

Mr.  FLANDERS  amendment  was  rejected — 21 
yes  only. 

The  question  was  then  taken  on  Mr.  TILDEN'S 
amendment,  and  it  was  also  rejected. 

Mr.  BASCOM  gave  notice  of  a  motion  to  recon- 
ider  the  vote  taken  on  the  amendment  he  had  of- 
ered. 

The  question  was  then  put  on  the  motion  of  Mr. 
VI ANN,  and  resulted  thus — Ayes  88,  noes  5. 

The  ninth  section  as  amended  was  then  adopt- 
d. 

The  tenth  section  was  then  read,  as  follows  : 

§  10  Surrogates  shall  be  elected  for  four  years.  They 
hall  be  compensated  by  fixed  salaries,  and  they  skall  not 
eceive  any  fees  or  perquisites  of  office. 

Mr.  CROOKER  moved  to  strike  out  the  sec- 
tion, and  insert  the  following: 

"  There  shall  be  elected  in  each  of  th«  counties  of  thi« 
itate,  except  the  city  and  county  of  .New-York,  onecoun- 
y  judge,  who  shall  hold  his  office  for  four  years,  and 
who  shall  hold  the  county  court,  perform  the  du- 
ies  ot  the  office  of  surrogate  and  the  duties  now  performed 
by  any  county  judge  " 

Mr.  HARRIS  thought  the  section  must  have 
3een  placed  through  inadvertance  where  it  was. 
[t  ought  to  come  after  the  13th  section,  a  kindred 
subject.  He  moved  that  its  consideration  be  post- 
poned until  the  13th  section  was  reached.  This 
was  agreed  to. 

The  eleventh  section  was  then  read,  as  follows  : 
(j  11.  Justices  of  the  supreme  court  and  judges  of  the  court 
of  appeals  may  be  removed  by  joint  resolution  of  both 
douses  of  the  legislature,  if  two-thirds  ot  all  the  members 
elected  to  the  assembly  and  a  majority  of  all  the  members 
elected  to  the  senate,  concur  therein.  Surrogates  and  all 
judicial  officers,  except  those  mentioned  in  this  section,  and 
except  justices  of  the  peace,  may  be  removed  by  the  senate 
ou  the  recommendation  of  the  governor,  but  no  such  re- 
moval shall  be  made  unless  the  cause  thereof  be  entered 
on  the  journal,  nor  unless  the  party  complained  of  shall 
have  been  served  with  a  copy  of  the  complaint  against 
him,  and  shall  have  had  an  opportunity  of  being  heard  in 
his  defence.  On  the  question  of  removal,  the  ayes  and 
noes  shall  be  en'ered  on  the  journals. 

Mr.  CROOKER  moved  to  strike  out' judges  of 
the  courts  of  appeals,  supreme  court,  &c.,and  in- 
sert "  all  judicial  officers ;"  but  withdrew  it,  and 
moved  to  strike  out  the  words  "surrogates,  and" 
in  the  6th  line.  It  was  agreed  to. 

Mr.  O'CONOR  said  that  if  the  section  prevail- 
ed, the  officer  should  be  heard  in  his  own  de- 
fence ;  but  that  it  did  not  say  whether  before  the 
Governor  or  before  the  Senate.  If  so  it  would 
make  the  body  extremely  like  a  new  court  of  im- 
peachments. He  thought  the  officer  should  be 
first  heard  before  the  Governor  and  moved  to 
amend  accordingly. 

Mr.  PATTERSON  thought  the  section  was 
clear  enough  on  this  point. 

Mr.  O'CONOR  withdrew  his  amendment. 

Mr.  LOOMIS  was  opposed  to  this  mode  of  try- 
ing officers,  and  did  not  think  it  arose  in  this 
country.  He  preferred  that  officers  as  such  should 
neither  be  tried  by  a  tribunal  worse  than  any 
other  or  better.  He  desired  that  they  should  be 
tried  by  the  ordinary  tribunals  of  the  country.  To 
carry  out  his  views  he  proposed  the  following 
section  *. — 

73 


786 


"  The  Legislature  shall  define  by  law  offences,  miscon 
duct  and  negligence  in  office,  which  shall  be  deemed  cause 
of  removal.  Any  officer  who  may  be  indicted,  tried  and 
convicted  of  any  such  oftence,  misconduct  or  negligence 
in  office,  or  for  an}  offence  committed  while  holding  any 
public  office,  the  punishment  for  which  by  law  may  be  im- 
prisonment, shall  by  such  conviction  and  the  judgement 
thereon,  be  ousted  from  such  office.' 

Mr.  L.'s  amendment  was  rejected,  only  seven- 
teen ayes. 

Mr/CROOKER  enquired  whether  the  former 
question  of  construction  would  not  authorize  the 
legislature  to  remove  the  justices  of  the  court  of 
appeal  without  any  cause,  and  on  mere  political 

gl  Mr.  BROWN  corrected  the  language  of  the  sec- 
tion so  as  to  guard  against  trial  as  to  construction. 

After  some  further  debate,  the  amendment  was 
adopted. 

Mr.  MORRIS  said  the  intention  of  this  section, 
which  was  in  part  copied  from  the  old  constitu- 
tion was  originally  to  reach  and  remove  officers 
who  had  become  broken  in  mental  vigor,  or  im- 
becile ;  but  it  had  been  perverted  and  used  to 
justify  removals  on  grounds  that  if  true,  would 
have  justified  an  impeachment.  To  prevent  this 
abuse,  an  amendment  had  been  adopted,  the  ef- 
fect of  which  had  been  to  create  two  modes  by 
which  persons  might  be  dismissed  from  office — 
the  one  having  all  the  effect  of  an  impeachment, 
without  the  opportunity  being  given  to  the  in- 
cumbent to  meet  the  charge^  He  proposed  to 
make  the  section  mean  what  it  was  intended  to 
mean,  and  not  to  have  two  modes  of  conducting 
proceedings  in  the  nature  of  an  impeachment. — 
He  proposed  to  amend  by  inserting  after  the 
word  "  may"  in  the  second  line—"  for  inability 
ID  discharge  the  duties  of  his  office,  arising  since 

This0 was  debated  by  Messrs.  PATTERSON 
BROWN  and  others,  when 

The  question  was  then  taken  on  Mr.  MORRIS'S 
amendment,  and  it  was  rejected. 

Mr.  PATTERSON  moved  to  strike  out  "joint' 
and  insert  "  concurrent,"  in  the  second  line.— 
This  was  agreed  to. 

Mr.  CROOKER  objected  to  two  kinds  of  tria 
for  different  kinds  of  officers.  He  wanted  county 
iud«-es  to  be  tried  by  as  good  a  tribunal  as  an; 
other.  He  proposed  a  substitute  for  the  whol 
section — providing  for  the  removal  of  all  judicia 
officers  (except  justices  of  the  peace)  in  one  am 
the  same  manner,  by  the  legislature,  for  cause 
for  which  they  could  not  be  impeached. 

The  amendment  was  rejected,  ayes;34,nays  39 

Mr.  MORRIS  moved  to  insert  after  the  wor 
"  opportunity,"  in  the  12th  line,  "  to  introduc 
witnesses  and." 

The  amendment  was  rejected— ayes  31,  nay 

32 

«  No  quorum  voting  the  ayes  and  nays  wer 
ordered.  There  were  then  ayes  53,  nays  39.  S 
the  amendment  was  adopted. 

Mr.  LOOMIS  offered  the  following  substitut 
for  the  section : 

Any  public  officer  may  be  removed  from  office,  bcfor 
the  expiration  of  his  term  ot  office,  by  the  governo 
alter  trial  and  conviction  of  any  crime,  gross  immoralitj 
misconduct  or  negligence  in  office,  or  inability  to  di 
charge  its  duties. 

After  a  brief  debate  this  amendment  was  rejec 
ted,  ayes  5,  nays  75. 


Mr.  TXLLMADGE  ottered  a  substitute  provi- 
ing  that  judges  of  the  court  of  appeals  and  of  the 
upreme  court  might  be  removed  by  a  majority 
f  all  the  members  elected  to  the  Senate,  on  the 
ecommendation  of  the  Governor. 

Mr.  PERKINS  moved  further  to  amend  by  re- 
uiring  the  Governor  to  assign  the  reason  for  the 
emoval  in  the  recommendation. 

Mr.  TALLMADGE  opposed  this  amendment, 
when  without  taking  question,  the  Convention 
.djourned. 

AFTERNOON  SESSION. 

The  question  first  came  up  on  the  amendment 
f  Mr.  PERKINS,  to  the  llth  section,  to  refer 
iack  the  whole  matter.  It  was  rejected. 

The  question  was  then  put  on  the  amendment 
»f  the  gentleman  from  Dutchess  (TALLMADGE,) 
as  published  before.  This  was  rejected. 

Mr.  BROWN  then  moved  to  reconsider  the 
vote  on  Mr.  MORRIS'  amendment  to  the  llth  sec- 
ion,  the  words  being  to  add  in  the  12th  line  after 
he  words  "  opportunity  of,"  the  words  "  intro- 
ducing witnesses  and  ;"  the  unanimous  consent  to 
econsider  this  was  granted. 

Mr.  MORRIS  said  there  was  a  quietness  in 
some  men's  energy  that  was  truly  astonishing ; 
and  such  was  the  case  with  the  gentleman  from 
Orange  (Mr.  BROWN,)  who,  when  most  cool,  was 
most  powerful.  He  (Mr.  M.)  had  introduced 
;hese  words  because  he  was  unwilling  to  have  a 
man  damned  to  all  eternity,  without  being  allow- 
ed, properly  and  fully,  in  his  defence,  to  intro- 
duce witnesses  to  clear  up  the  charges  against 
his  character.  He  was  willing  the  legislature 
should  charge  a  man  (a  judicial  officer,)  with  be- 
ing a  dolt — a  fool — or  of  being  incapable — but  he 
was  not  willing  that  he  should  be  so  declared  be- 
cause he  was  a  rascal,  and  himself  disgraced,  and 
tiis  family  lacerated,  without  being  permitted  to 
3ring  witnesses  to  prove  his  innocence. 

Mr.  BROWN  said  he  moved  to  reconsider  now, 

ty  in  order  to  save  time.  The  language  of  the 
reported  section  was  precisely  the  same  as  that 
hTthe  old  constitution. 

Mr.  STOW  asked  Mr.  MORRIS  if  he  thought  it 
was  advisable  to  have  witnesses  introduced  in  a 
case  where  a  man  had  already  been  convicted  in 
a  court  of  a  record,  ot  a  state  prison  or  other  in- 
famous ofience. 

Mr.  MORRIS  said,  yes;  and  in  that  case  the 
record  itself  would  be  the  witness. 

Mr.  LOOMIS  moved  to  pass  over  the  section ; 
he  thought  a  judge  had  a  right  to  introduce  wit- 
nesses to  sustain  his  character  as  Mr.  MORRIS  had 
proposed.  But  he  (Mr.  LOOMIS)  moved  to  pass 
over  the  section. 

Mr.  BROWN  :  No  ;  settle  it  now. 

The  Convention  refused  to  pass  over  it  by  a 
large  vote. 

Mr.  MARVIN  was  opposed  to  allowing  witnes- 
ses to  be  introduced  as  proposed  by  Mr.  MORRIS. 

Mr.  VAN  SCHOONHOVEN  was  in  favor  of  a 
judge  being  fully  heard  in  his  defence,  and  of  in- 
troducing witnesses. 

Mr.  PATTERSON  thought  that  if  a  judicial 
officer  was  to  be  allowed  to  introduce  witnesses, 
the  government  or  people  ought  also  to  be  allowed 
to  introduce  witnesses. 

The  question  was  put  on  reconsidering  Mr. 


787 


MORRIS'S  amendment,  and  the  House  agreed  to 
reconsider  the  same. 

The  question  then  came  up  on  Mr.  MORRIS'S 
amendment. 

Mr.  MORRIS  called  for  the  ayes  and  noes. — 
They  were  ordered  and  resulted  thus  :  Ayes  28, 
noes  GO. 

So  the  House  refused  to  agree  to  the  amend- 
ment of  Mr.  MORRIS  ;  thus  reversing  their  vote 
of  the  morning. 

Mr.  ST.  JOHN  moved  the  previous  question 
on  the  llth  section.  Ayes  35,  nays  13 — no  quo- 
rum. A  second  count  was  taken  and  there  were 
ayes  G4,  nays  11. 

The  previous  question  was  seconded,  and  the 
main  question  was  ordered. 

Mr.  MORRIS  called  for  the  ayes  and  noes  on 
the  passage  of  the  section.  They  were  ordered 
and  resulted,  ayes  86,  noes  11.  So  the  llth  sec- 
tion was  passed. 

Mr.  RHOADES  said  that  before  they  passed  to 
the  12th  section,  he  wished  to  call  attention  to 
the  6th  section,  because  there  was  no  provision 
made  there  for  the  salary  of  the  judges  of  appeals. 

Mr.  PATTERSON  said  that  an  amendment 
had  been  passed  to  that  section,  providing  for 
that  very  matter. 

The  12th  section  was  then  read,  as  follows : 

§  12.  "  The  justices  of  the  Supreme  Court  shall  be  nomi- 
nated by  the  Governor,  and  appointed  by  and  with  the 
consent  ol  the  Senate  "  Or. 

§  12.  "  The  justices  of  the  Supreme  Court  shall  be  elect- 
ed by  the  electors  of  the  respective  districts,  at  such  times 
#s  may  be  provided  by  law,  but  not  within  90  days  before 
or  after  the  general  election." 

Mr.  SWACKHAMER  moved  to  strike  out  all 
down  to  ard  including  the  word  "  or"  in  the  4th 
line. 

Mr.  STOW  moved  to  amend  by  striking  out  in 
the  second  and  third  lines  the  words  "  the  Se- 
nate," and  insert  in  lieu  thereof  the  words  "  a 
majority  of  the  Senate,  and  at  least  one  half  of 
the  members  of  the  district  where  the  judge 
should  be  elected."  Mr.  S.  said  this  question 
was  not  intended  to  decide  whether  the  people 
should  elect  the  judges  ;  but  he  wished  to  have 
it  understood  whether  the  Governor  should  be  al- 
lowed to  appoint  them  with  the  consent  of  a  bare 
majority  of  the  Senate,  without  giving  the  mi- 
nority the  privilege  of  being  heard.  The  judi- 
ciary system  was  intended  for  the  protection  of 
minorities,  and  he  was  disposed  to  raise  his  voice 
here  against  the  present  form  of  appointment. — 
If  it  was  decided  to  appoint  the  judges,  he  con- 
tended that  it  should  be  as  he  proposed. 

Mr.  BROWN  said  he  wished  to  raise  the  dis- 
tinct question  now,  whether  the  Convention 
would  have  these  justices  of  the  Supreme  Court 
elected  by  general  ticket  or  not.  If  he  could  not 
get  them  elected  by  general  ticket,  then  he  want- 
ed them  appointed  by  the  Governor  and  Senate. 

Mr.  MURPHY  said  if  he  could  riot  have  these 
justices  of  the  Supreme  Court  elected  by  the 
electors  of  the  respective  senatorial  districts  of 
the  State,  then  he  wanted  them  appointed  by  the 
Governor  and  Senate;  and  he  moved  accordingly: 

«•  The  justices  of  the  Supreme  Court  shall  be  elected  by 
the  electors  ol  the  respective  Senatorial  districts  of  the 
State,  at  such  times  as  may  be  provided  by  law." 

Mr.  MURPHY  defended  his  proposition.  He 
wished  if  the  judges  were  elected  by  the  people, 


to  obtain  all  the  virtue  arising  from  that  mode. — 
It  would  be  necessary  that  the  people  should 
know  them ;  and  this  could  only  be  accomplish- 
ed by  adopting  his  proposition.  If  they  were  to 
be  elected  by  general  ticket,  the  people  would 
not  know  one  tenth  part  of  these  judges;  for  they 
would  all  be  nominated  by  the  party  machinery 
in  caucus  of  the  Convention  at  Syracuse  or  some 
other  place  ;  and  the  adherents  of  the  party  would 
vote  for  them  on  faith,  (without  knowing  them) 
because  they  were  regularly  nominated.  Bring 
this  down  directly  to  the  people,  and  then  if  a 
judge  is  corrupt  the  people  will  know  him  to  be 
corrupt;  and  if  he  has  been  maligned  by  some 
political  aspirants  or  opponents  that  will  also  be 
known.  And  for  this  reason  he  wished  the  judg- 
es of  the  supreme  court  to  be  elected  by  the  elec- 
tors, one  in  each  Senatorial  district.  And  he 
called  for  the  ayes  and  noes  on  this  proposition. 

Mr.  BROWN  asked  Mr.  MURPHY  if  he  wished 
by  his  proposition  to  have  one  of  these  32  judges 
elected  by  the  electors. in  each  Senate  District  of 
the  State. 

Mr.  MURPHY  said  he  did. 

Mr.  BROWN  said  that  then  the  question  of  the 
mode  of  election  of  these  justices  of  the  Supreme 
Court,  would  now  come  distinctly  tobe  acted  upon 
by  the  Convention;  he  would  not  detain  the 
House  ;  he  believed  all  had  deliberated  on  it  ful- 
ly, and  had  made  up  their  minds  on  it;  and  he 
was  glad  the  sense  of  the  Convention  would  now 
be  taken  on  a  direct  question. 

Mr.  KIRKLAND  called  for  a  division  of  the 
question;  take  it  on  the  time  of  election  on  strik- 
ing out  "  the  90  days  before  or  after  the  annual 
election,"  and  separately  on  electing  them  by  sena- 
torial districts. 

Mr.  CROOKERsaid  that  they  would  settle  the 
large  principle  first,  and  the  little  principle  after- 
wards. 

Mr.  STETSON  said  that  he  could  not  sit  silent 
whilst  such  a  proposition  as  this  of  Mr.  MUR- 
PHY'S was  about  to  be  submitted  ;  so  subversive 
as  it  was  of  all  the  true  principles  of  that  demo- 
cracy which  our  fore-fathers  fought  for.  He  thank- 
ed God  he  belonged  to  a  republican  government, 
and  so  long  as  Jie  lived,  he  would  vote  for  nothing 
tha'  had  any  tendency  to  an  oligarchy  as  ihis  had. 
These  32  judges  were  to  be  judges  of  the  whole 
of  the  great  State  of  New  York,  and  not  of  a 
mere  locality.  They  ought  to  be  elected  by  the 
whole  people,  and  not  by  the  people  of  a  section, 
because  they  were  to  try  the  whole  people  for  life 
or  death.  The  plan  of  the  gentleman  from  Kings 
(Mr.  MURPHY)  might  be  convenient  to  some  gen- 
tlemen, but  it  would  be  unjust  to  the  people.  The 
gentleman  might  argue  that  by  this  plai«  you  could 
get  a  better  m;m  for  a  judge  here  and  there,  by 
having  him  elected  by  a  lew  of  the  people,  and 
not  by  the  whole  of  them  ;  but  such  an  argument 
would  sustain  a  monarchy  ;  it  was  this  argument 
that  sent  Ireland  her  Lord  Lieutenant.,  Lord  Cnan- 
cellor,  &c.,  and  that  now  sends  Canada  her 
Governor;  that  allows  a  king  to  select  these 
officers,  because  it  is  asserted  i.hat  this  one 
man  is  better  qualified  to  jud^e  of  the  fi'ness 
of  certain  men  lor  these  offices,  than  the 
whole  people  can  be.  This  ptyn  of  Mr.  MUR- 
PHY'S was  as  much  an  oligarchy  as  the  appoint- 
ment of  judges  by  a  king.  It  \\srn  true  that  it  was 


788 


a  somewhat  numerous  oligarchy,  but  still  it  was 
quite  as  much  an  oligarchy  as  that  of  any  monar- 
chy in  Europe.  Here  is  an  attempt  to  fasten  an 
odious  oligarchy  on  the  democracy  of  this  state  ; 
for  an  oligarchy  is  the  governing  of  the  whole 
people  by  a  small  party  of  the  people.  You  might 
as  well  say  that  one  town  or  one  county  should 
elect  all  the  judges  for  the  whole  state;  it  would 
only  be  refining  a  little  on  the  proposition  of  the 
gentleman;  the  principle  would  be  the  same. — 
The  appointment  of  these  judges  as  now,  by  the 
governor,  who  is  the  agent  of  the  whole  people, 
and  in  whose  election  the  whole  people  had  a 
voice — is  now  considered  not  democratic  enough. 
And  yet  now  you  propose,  in  this  age  of  reform, 
to  allow  one-*eighth  to  elect  a  judge  lor  the  other 
seven-eighths  ;  by  and  by  you  will  let  one-tenth 
elect  for  the  other  nine  tenths,  or  allow  one-thirty- 
second,  or  one-hundreth  of  the  people — or  by  and 
by  you  may  give  this  power  to  one  man.  It  was 
very  likely  to  do  this.  He  would  never  by  his 
vote  consent  to  form  sach  an  odious  oligarchy. — 
Political  motives  have  influenced  this.  If  any 
curse  could  be  inflicted  on  the  people  greater  than 
another,  it  would  be  to  have  political  judges.  They 
should  be  free  as  air.  He  did  not  want  a  judge  of 
the  supreme  court,  when  he  came  down  to  pieside 
in  Clinton  county,  to  be  the  representative  of  a 
small  locality.  He  had  long  seen  the  power  at 
work  to  endeavor  to  get  this  district  system  of 
judges  at  work,  in  'the  Convention  and  out  of  it  ; 
a  id  if  it  was  not  for  political  motives,  then  it  must 
be  for  some  private  or  personal  motive,  which  mo- 
tive he  could  not  understand.  He  had  been  put 
down  the  other  day  in  the  "  Argus"  as  wanting  to 
prove,  or  as  saying,  that  a  judge  was  a  mere  local 
r  'preservative,  when  he  had  been  laboring  assidu- 
ously tor  half  an  hour  to  prove  the  contrary.  This 
very  proposition  would,  if  adopted,  be  removing 
the  power  of  electing  these  judges  farther  from 
the  people.  You  might  as  well  elect  my  governor 
f-.»r  me,  and  I  elect  your  senator  for  you ;  it  is  even 
so,  to  say  that  one-eighih  of  the  people  shall  elect 
•\  man  who  is  to  preside  over  the  property,  the 
interests,  the  life  and  death  of  the  whole  state  — 
He  would  never  consent  to  this.  And  if  he  slood 
alone,  he  would  forever  oppose  this  scheme  to  re- 
move the  power  of  erecting  judges^so  far  from  the 
people. 

Mr.  STRONG  said  he  had  no  objection  to  the 
gentleman  from  Clinton  (Mr.  STETSON)  laying 
down  his  notions  of  democracy ;  but  he  did  ob- 
ject to  his  manner  of  doing  it.  He  (Mr.  STET- 
SON) loaves  his  seat,  comes  over  to  the  seat  which 
I  have  a  right  to,  (having  drawn  it  by  a  game  of 
chance) — he  slaps  his  hands  down  on  my  desk — 
he  slaps  them  together  close  to  my  face,  (laugh- 
ter)— he  causes  the  seats  all  around  me  to  be  de- 
serted ;  and  if  I  had  not  been  a  brave  man,  and 
seen  bears  before,  I  might  have  been  frightened. 

Mr.  STETSON— I  call  the  gentleman  to  order. 

Mr.  STR.ONG — Go  on,  and  send  up  your  point 
of  order.  Oh  !  I'm  perfectly  cool. 

Mr.  STETSON— I  call  him  to  order  for  gross 
personalitiey  in  alluding  to  "  bears,"  and  stating 
things  that  are  not  true. 

Mr.  STRO.NG.  I  said  what  was  true  every 
word  of  it. 

Mr.  STETSON.  But  sir,  perhaps  it  would  be 
useless  to  call  to  order  a  person  who  seems  to  lay 


claim  to  a  genera]  license  to  insult  and  use  gross* 
personal  abuse  and  untruths. 

Mr.  STRONG.  Well,  the  gentleman  withdraws 
his  point  of  order,  and  perhaps  it  is  the  best  way 
for  him  to  get  out  of  it.  He  has  blown  off  all  his 
gas  and  may  feel  better.  He  talks  about  going  to 
the  school  houses,  and  testing  this  question  ;  why 
if  the  school  houses  contain  children  one  half  as 
intelligent  as  they  are  in  the  western  part  of  New 
York  they  would  laugh  at  such  stuff  as  he  has 
been  talking  about.  As  to  those  who  advocate 
this  judicial  district  system  having  political  mo- 
tives, perhaps  the  gentleman  from  Clinton,  (Mr. 
STETSON)  judged  from  himself;  perhaps  he  might 
expect  if  this  passed  to  become  a  judge  in  his  own 
county.  . 

Here  Mr.  STETSON  left  the  Hall,  and  Mr. 
STRONG  concluded  with  a  very  few  words  more, 

Mr.  BASCOM  advocated  the  district  system, 
and  denounced  the  blighting  effect  of  party.  He 
said  that  much  was  said  about  the  forms  of  gov- 
ernment, and  the  world  had  long  been  engaged 
in  discussing  which  form  was  the  best— but  after 
allf  that  was  the  best  government  that  provided 
the  mode  that  would  secure  the  designation  of  the 
best  rulers.  No  matter  how  abstractly  right  may 
be  the  principles  upon  which  a  government  was 
established  ;  if  it  failed  to  provide  the  best  pos- 
sible mode  for  securing  good  rulers,  it  would  fail 
to  accomplish  the  legitimate  objects  of  a  good 
government.  An  elective  government  was  right 
in  the  abstract ;  in  an  intelligent  community  it 
was  not  only  the  right  but  the  expedient  form, 
but  here  even,  if  the  best  possible  mode  of  bring- 
ing the  popular  intelligence  to  bear  directly  upon 
the  designation  of  rulers  was  not  provided,it  might 
be  little  better  than  an  oligarchy  or  a  monarchy. 

"The  people  are  always  right,"  was- a  sort  of 
abstract  proposition  to  which  we  must  submit, 
from  the  necessity  imposed  by  our  form  of  gov- 
ernment ;  as  the  subjects  of  monarchy,  must  sub- 
mit to  that,  "  that  the  King  can  do  no  wrong." — 
But  in  the  general  the  people  are  really  right, 
when  individual  knowledge  and  personal  ac- 
quaintance lights  the  path,  and  influences  the  ac- 
tion of  the  elector ;  not  so  always  when  he  is 
guided  by  the  alluring  representations  of  party 
friends,  or  the  objections  of  party  opponents. — 

Mr.  B.  continued  in  reply  to  Mr.  STETSON, 
arguing  in  favor  of  the  senate  district  system  as 
the  surest  mode  of  getting  good  judges. 

Cries  of  "  Question — Question." 

Mr.  BAKER  said  that  he  rose  to  secure  the 
question,  and  for  that  purpose  he  moved  the  pre- 
vious question. 

Mr.  BROWN.     Thank  you,  sir. 

Mr.  BAKER  said  he  moved  to  apply  it  to  the 
two  pending  amendments,  but  withdrew  it  as  to 
Mr.  BROWN'S  amendment. 

Mr.  WHITE  moved  to  adjourn.  Cries  of  No, 
No. 

The  motion  to  adjourn  was  lost. 

Mr.  K1RKLAND  said  he  had  made  a  motion  to 
divide  the  question.  The  previous  question  was 
then  seconded,  55  to  18. 

The  main  question  was  then  ordered. 

The  ayes  and  noes  were  then  ordered  a  second 
time  on  MURPHY'S  amendment  to  BROWN'S 
amendment,  which  was  to  have  the  judges  elect- 


789 


ed  by  Senate  Districts.  This  was  carried.  AYES 
60— NOES  49. 

Mr.  BROWN  gave  notice  of  a  motion  to  recon- 
sider the  last  vote ;  and  wished  gentlemen  to  re- 
flect on  the  effect  this  system  (if  adopted  and 
persisted  in)  would  have  on  the  whole  Judicial 
System. 

The  Convention  then  adjourned  till  to-morrow 
at  9  A.  M.  

WEDNESDAY  (18t/i  day)  Sept.  2d. 
Prayer  by  the  Rev.  Dr.  POHLMAN. 
Mr.  NICOLL  presented  the  following  resolution  : 
Resolved,  That  the  fifth  section  of  the  report  of  the  ju 
diciary  committee  be  recommitted  to  that  committee,  with 
instructions  so  to  alter  the  same  that  the  judges  of  the  su- 
preme court  be  limited  in  the  exercise  of  their  judicial 
powers  to  the  districts  in  which  they  shall  have  been  cho- 
len. 

Mr.  NICOLL  said  he  felt  it  to  be  a  solemn  duty 
to  his  constituents  to  present  the   resolution  just 
read.     After  the  decisive  vote  of  the   Convention 
yesterday  afternoon,  it  was  apparent  that  the  judg. 
'  es  ot  the  supreme  court  would  be  elected   in  sin- 
gle  senate  districts.     In  his  judgment  it  was    not 
only  a  matter  of  the   highest   expediency   but   of 
the  plainest  principle,  that  these  judges  should  be 
confined  in  the  exercise  of  their  judicial  duties  to 
the  district  in  which  they  are  to    be  chosen.     He 
felt  satisfied  that   the   constituency   which  he   in 
part  represented,  would  never  consent  that   their 
lives,  liberty  and  property  should  be  at  the  mercy 
of  judges  over  whose  election  thev  would  have  no 
control — and  such  he  fully  believed  would  be  the 
feeling  of  tho  people  generally,  when  they  should 
learn  in  what  manner  we  i;ad  determined  to  elect 
the  judge?.     The  argument  adduced  in    favor    oi 
the  district  system  was  founded  on  a  palpable  fal- 
lacy, tg  wit:  that  our  judges  were  the  representa- 
tives of  the  people,  acting  as  the  component  parts 
of  a  great  whole,  in  which  the   state   was   fully, 
fairly  and  equally  represented.     This  was  not   in 
any    manner  true.     It  might,  he  admitted,  if  the 
court  were  only  to  act  when  assembled  as  a  whole, 
as  in  the  case  of  the  legislature  and  the  court  o! 
errors,  where  every  constituency  has  a  voice,  and 
ij   entitled  to  be  heard  in    every    matter  brought 
before    those   bodies;  but  according    to  the  plai 
adopted  by  the  Convention,  any  three  of  the  judg 
e.s  ot  the  supreme  court  will  be  not  only  author- 
ized but  required  to  hold  its  terms      The   severa 
districts  in  which  the  court  will  be  held  cannot  be 
expected  to  have  their  own  judges  beyond  a  mere 
fraction  of  the  time.     As  a  general    rule,  justice 
will  be  administered  to  them  by  magistrates  elect- 
ed at   a  distance,    irresponsible   to  them    in    any 
manner,  and  perhaps  indifferent  to  the  approbation 
of  any  but  their  own   immediate   constituency  — 
This   was   a    violation   of  all    the    principles   or 
which    the   foundations   ot   popular    governmen 
rested.     It  was  not  democracy — it  was  not    eqna 
rights,  but  absolute  despotism.     He    felt    it  lobe 
an  imperative  duty  to  resist  ,in  every  manner  tli 
establishment  ot  a  system  which   he    regarded   as 
in    the    highest  degiee  tyrannical  and  at  war  with 
the  sentiments   of  the   people  of  the  state.     He 
should  therefore  press  the  consideration  of  the  re- 
solution he  had  j'ist  offered. 

Mr.  KIRKLAND  moved  that  the  resolution  be 
laid  on  the  table. 
This  motion  was  carried. 


The  convention  then  resumed  the  consideration 
f  the  unfinished  business,  being 

THE  JUDICIARY  SYSTEM. 
Mr.  BROWN  said  that  he  must  now  call  up  the 
motion  he  made  last  night  to  reconsider  the  vote 
n  relation  to  the  election  of  judges  by  senatorial 
districts.  The  vote  was  on  the  amendment  of  Mr. 
MURPHY  to  the  12th  section.  He  (Mr.  B.)  said 
ic  was  in  favor  of  an  election  by  general  ticket. 

Mr.  B.  went  on  to  speak  of  the  importance  of 
the  amendment  of  Mr.  MURPHY  in  various  bear- 
ngs,  and  of  the  considerations  that  had  actuated 
lim  and  the  committee  in  making  up  the  report 
which  they  were  then  discussing.  He  had  wish- 
ed to  have  no  one  party  control  the  election  of 
these  judges.  He  wished  a  plan  that  would  give 
good  satisfaction.  He  only  spoke  to  vindicate  his 
own  course  in  this  matter,  and  to  sustain  the  re- 
port. The  nominations  of  state  officers  at  Syra- 
cuse, was  a  mere  mockery ;  this  had  been  said  to 
him  a  dozen  times  ;  and  he  felt  the  importance  of 
this  remark.  But  he  felt  pleased  that  a  change 
in  the  system  was  at  hand.  That  time  had  passed 
away.  The  vote  of  yesterday  was  an  expression 
to  which  he  would  bow.  Some  of  his  best  and 
warmest  friends,  had  said  that  perhaps  he  had 
gone  a  little  too  far  in  his  advocacy  of  the  plan 
before  them.  But  he  had  only  stated  his  own 
judgment  in  the  matter  candidly  and  freely.  He 
had  put  the  question  yesterday  fairly,  and  with  a 
view  to  get  a  direct  vote,  and  now  he  would  take 
the  least  worst  of  three  alternatives.  He  hoped 
the  convention  would  retrace  their  steps.  The 
expression  of  yesterday  is  that  there  shall  be  an 
election,  and  not  by  general  ticket,  but  by 
senate  districts.  His  constituents,  and  those  who 
come  after  him,  shall  know  theft  he,  at  least,  was 
true  to  the  principles  he  commenced  with. 

Mr.  COOK  called  his  attention  to  the  fourth 
section. 

Mr.  BROWN  :  That's  all  very  well,  but  they 
must  retrace  their  steps ;  and  if  they  adopt  the 
district  system  must  remodel  the  whole  system  of 
of  a  judiciary  which  we  have  presented. 

Mr.  STRONG :  Well  then,  why  not  insert 
"  Judicial"  instead  of  "Senatorial"  districts. 

Mr.  BROWN  was  sorry  to  see  two  gentlemen 
of  opposite  sides  introduce  party  politics  into  this 
matter  as  they  did  yesterday.  He  wished  for 
peace  and  harmony  to  prevail.  But  to  come  back 
to  the  point.  If  a  judge  is  elected  in  Orange  and 
Sullivan  he  is  to  'exercise  the  greater  part  of  his 
influence  out  of  those  two  counties,  and  vice 
versa.  How  can  that  work  well  ?  He  spoke  of 
the  opposition  out  of  the  House  to  the  proceedings 
of  the  Convention  ;  and  he  entreated  gentlemen 
seriously  to  consider  before  they  gave  the  people.'a 
system  that  they  would  not  vote  for.  He  hoped 
they  would  agree  on  a  system  commanding  pub- 
lic confidence  in  every  respect.  And  he  would  con- 
clude with  one  word  to  the  gentleman  from  Kings, 
and  entreat  him  most  earnestly  to  reconsider  this 
matter.  He  would  move  to  modify  by  inserting 
the  word  "  Judicial"  in  the  place  of  "Senatorial" 
districts  in  the  resolution  of  yesterday. 

Mr.  RICHMOND  replied.  The  {feu  tie  man  from 
Orange  (Mr.  BROWN)  urges  as  a  reason  for  recon- 
sideration, that  the  whole  machinery  of  this  sys- 
t^m  will  not  work  if  the  vote  of  last,  night  should 
be  adhered  to.  Mr.  R.  said  no  one  principle  had 


790 


been  better   settled   by  this  Convention,  than  the 
question  of  electing  the  judges  by  single  districts. 
It  was   settled    after  mature   deliberation,  and  by 
the   decisive   majority  of  eleven  votes,  and  this, 
too,  in  a  full  Convention.     And  now,  he  said,  the 
gentleman  comes   in  here  this  morning,  and  asks 
this  body  to  reverse  its  deliberative  act  of  yester- 
day, for  no  other  reason,  as  he  (Mr.  R.)  could  per 
ceive,  but  to   gratify  that  gentleman's  feelings.— 
There  might  be  other  and  particular  reasons  which 
had  not  yet  been  brought  out  to  view.    He  thought 
the   gentleman's  object   would  be  better  attained 
by  reconsidering  and  changing  such  other  portions 
of  -the  report  as  were  inconsistent  with  that  vote. 
Mr.  R.  would  go  with -him  for  such  a  reconsidera- 
tion, but  not   for  the  one  just   moved.     As  to  the 
objection   that  the  judge  elected    in  one  district 
would  not  act  for  the  whole  state,  he  would  remind 
the  gentleman  that  such  would  be  equally  the  fact 
with  senators  and  members  of  the  assembly.     He 
said  members  of  the  senate  and  assembly  were  to 
be  elected  by  single  districts,  and  still  the  mem- 
bers  from  Orange   county  could    vote  taxes  on  to 
the   constituents  of   Mr.   R.,  and  might  vote  to 
abridge  their  privileges  in  many  respects,  yet  they 
had  no  voice  in  their  election.     Arguments  in  fa- 
vor of  electing  Senators  and  members  of  Assem- 
bly in  single   districts  applied   in   their  fullest 
force  in  favor  of  single  districts  for  the  election  of 
Judges.     This  would  prevent,  combinations  be- 
tween candidates.     All  would  have  to  stand  upon 
their  own  merits.     Elect  by  general-ticket,  and 
politicians  would   combine  their  forces,   and  the 
result  would  be  the  nomination  of  some  hack 
politician,  a  person  entirely  unfit  for  the  respon 
sible  office  of  Supreme  Court  Judge.     The  peo- 
ple would  not,  afld  could  not  know  him,   and  his 
being  placed  on  the  ticket,  perhaps  with  other 
candidates  who  maybe  unobjectionable,  his  elec- 
tion may  be  made  sure,  especially  when  in  addi- 
tion to   all  of  this,   he  has   all  the   aid  which   a 
strong  political   party  can   give  by  means  of  its 
most  perfect  organization.     Mr.  R.  would  guarc 
against  this      The   same   objection  would  apply, 
though   perhaps  not  so  strongly,   to  the  electior 
by  Judicial  Districts.     In  that  case,   there  woulc 
be  four  judges  to  be  elected  in  each  district,   anc 
the   chances  would  be  that   some  one   or  two  o: 
them  would  be  bad  ones.     The  influence  of  the 
central  cliques  in  the  various   counties,    when 
united,   having  so  large   a  field   for  action  anc" 
management,  would  be  too  powerful  for  the  hon 
est  yeomanry;    but  bring  this   election  neare: 
home,   so  that  the  people  could  see  to  it  all,   am 
his  word  for  it,  they  could  not  smuggle  in  an  un 
fit  or  incompetent  man  ;  if  the  wire  pullers  sue 
ceeded   in  getting  such   a  tool  nominated,   thej 
could   not  get  the  people  to  vote  for  him ;  the; 
would  know  him,  and  would  promptly  rejec 
him. 

Mr,  KIRKLAND  said,  I  voted  yesterday,  Mr 
President,  for  the  amendment  of  the  gentlemai 
from  Kings,  (Mr.  MURPHY,)  providing  for  th 
election  of  a  judge  of  the  supreme  court  in  eacl 
of  the  thirty-two  Senatorial  districts  of  the  State 
Having  given  this  vote,  I  owe  it  to  myself  an 
others  to  state  my  precise  position  on  this  sub 
ject.  As  I  had  occasion  to  remark  on  a  forme 
occasion  on  this  floor,  there  are  in  my  judgmen 
serious  if  not  insuperable  objections  to  selectin 


ic  incumbents  of  all  your  judicial  offices  from 
le  highest  to  the  lowest  grade  by  means  of  elec- 
on.  These  objections  do  not  arise  from  any 
'ant  of  capacity,  moral  or  mental,  on  th«  part  of 
le  people,  to  select  suitable  persons  for  these 
;ations ;  on  the  contrary,  my  firm  conviction  is 
lat  a  choice  made  by  the  spontaneous,  indepen- 
ent,  impartial  action  of  the  electoral  body  of  this 
tate,  would  place  in  your  judicial  tribunals  in- 
umbents  as  well  qualified  as  any  that  could  be 
rocured  in  any  mode  that  has  been  or  can  be  de- 
ised.  But  we  must  look  at  facts  as  they  exist 
nd  as  they  are  likely  to  exist.  We  all  know 
mat  nominations  to  these  offices  will  be  made,  as 
thers  are,  by  party  caucuses  and  cpnventions — 
ye  know  that  these  assemblages,  and  the  nomi- 
ations  they  make,  are  very  often  the  result  of 
ntrigue,  of  management,  of  personal  and  local 
rrangements  and  of  the  contracts  and  bargains 
f  mere  politicians.  We  understand  well  too, 
he  iron  rule  of  these  caucuses  and  conventions ; 
heir  decrees  are  despotic,  and  political  death 
waits  him  who  refuses  to  them  passive  obedi- 
nce.  The  consequence  is  that  to  one  case  where 
hese  decrees  are  disregarded,  there  are  ninety- 
ine  where  they  ere  implicitly  obeyed  by  all  par- 
y  men. 

Indeed,  strict  adherence  to  "  regular  nomina- 
ions"  is  the  watchword  of  all  parties,  and  has 
;ome  to  be  regarded  as  an  essential  article  of 
>arty  faith.  Thus,  sir,  the  nomination  by  the 
>arty  happening  at  the  time  to  have  the  majori- 
y,  is  tantamount  for  all  practical  purposes  to  the 
actual  election,  and  thus  in  fact  the  irresponsi- 
_le  members  of  a  party  convention,  acting  under 
no  official  sanction,  and  assembled  for  a  day  or  an 
hour,  and  then  dispersing  to  meet  no  more,  will 
n  fact  appoint  your  judges.  I  prefer  for  this 
purpose  a  more  responsible  appointing  power. — 
But  again,  sir,  objections'  of  a  still  graver  cha- 
racter arise  out  of  the  circumstances  in  which  an 
elected  judge  would  be  placed,  and  the  tempta- 
tions to  which  he  would  be  exposed.  A  judge  is 
liable  to  the  same  passions,  prejudices  and  influ- 
ences with  other  men ;  his  nature  is  not  changed 
by  his  official  character  ;  judicial  robes  cover  the 
same  infirmities  that  are  found  under  meaner 
garbs.  Will  not  the  judge  be  apt  to  remember 
the  man  who  greatly  promoted,  perhaps  secured 
his  election?  Will  he  forget  him  who  opposed 
him  with  zeal  and  energy,  and  perhaps  intempe- 
rate heat?  In  view  of  re-election,  will  he  be 
sure  to  do  impartial  and  exact  justice  in  a  contro- 
versy between  the  powerful  and  the  powerless  ? 
Between  him  who  may  control  many  votes  and 
him  who  can  control  none  ? 

In  periods  when  the  public  judgment  may  be 
misled,  (and  such  periods  sometimes  happen,) 
will  the  judge  disregard  that  erroneous  public 
judgment  or  will  he,  to  secure  his  re-election, 
yield  to  it,  and  at  the  hustings  and  in  the  public 
prints  proclaim  himself  the  advocate>  if  needs  be, 
of  repudiation  as  has  been  done  by  the  candidates 
for  judgeships  in  Mississippi  ?  When  there  pre- 
vails some  great  popular  excitement,  as  has  seve- 
ral times  during  the  last  ten  years  occurred  in  ex- 
tensive districts  in  this  very  state,  will  he  stand 
manfully  up  against  those  excitements  and  ad- 
mister  justice  with  entire  purity  and  impartiality? 
Especially,  will  he  do  this  on  the  eve  of  an  elec- 


791 


tion,  which  is  perhaps  to  determine  whether  he 
is  to  be  consigned  to  the  obscurity  of  private  life, 
perhaps  to  penury,  or  whether  he  is  to  enjoy  a 
competent  salary  and  the  honors  of  the  ermine 
for  another  eight  years'  term  ?  Under  such  and 
similar  circumstances,  will  the  judge  be  always 
sternly  just  and  virtuous,  or  will  he  prove  too 
weak  to  resist  temptations  so  powerful  ?  Many 
other  views  of  a  similar  kind  might  be  presented; 
and  they  all  derive  additional  force  from  the  short- 
ness of  the  term  (eight  years)  already  determined 
on  by  a  decisive  vote  of  the  Convention. 

These  objections,  Mr.  President,  it  will  be  seen 
all  arise,  either  from  the  mode  in  which  candi- 
dates are  according  to  our  customs  presented  to 
the  people,  or  from  the  effect  which  this  method 
of  obtaining  his  office  would  inevitably  be  calcu- 
lated to  have  on  the  incumbent ;  from  the  dan- 
gers, the  difficulties  and  temptations,  the  mo- 
tives, prejudices  and  passions,  to  which  he  would 
so  certainly  be  exposed.  Not  one  of  these  objec- 
tions casts  the  least  doubt  on  the  intelligence  and 
virtue  of  the  people,  and  implies  the  slightest  dis- 
trust of  their  capacity  to  select  their  own  agents 
and  officers.  Such  doubts  and  distrusts  form  no 
part  of  my  political  creed  :  they  cannot  be  har- 
bored in  the  bosom  of  any  one,  who  believes  with 
me,  that  "  man  is  capable  of  self-government." — 
I  ought  further  to  add,  that  our  constituents  do 
not,  as  I  believe,  desire  o.r  expect  this  change. — 
It  is  a  mode  unknown  and  untried  in  our  sister 
States  with  a  solitary  exception — and  I  see  it  sta- 
ted in  the  public  prints  that  the  new  constitution 
of  Missouri  is  just  now  rejected  ;  and  in  part  be- 
cause it  proposed  the  election  by  the  people  of  a 
portion  of  the  judiciary.  But,  sir,  I  shall  not 
dwell  longer  on  this  subject:  the  objections  to 
the  election  of  the  judiciary,  which  I  consider  so 
serious,  are  not  so  regarded  by  others,  and  any  ar- 
guments I  might  urge  in  this  behalf  would  not  I 
am  well  aware  in  any  manner  influence  the 
opinion  entertained  by  a  majority  of  this  Conven- 
tion. That  majority  have  doubtless  decided  that 
the  judicial  office  shall  be  filled  by  el  action,  and 
with  that  decision,  so  far  as  this  body  is  concern- 
ed, I  am  not  to  quarrel.  But,  sir,  I  was  called 
on  to  vote  on  the  mode  of  carrying  out  this  decis- 
ion ;  and  when  I  gave  my  vote  yesterday,  I  was 
persuaded  as  I  still  am  that  the  mode  proposed  by 
the  amendment  of  the  gentleman  from  Kings  is 
the  most  safe,  suitable  and  reliable  manner  of 
giving  effect  to  the  principle  of  popular  election, 
and  therefore  I  sustained  and  shall  continue  to 
sustain  it,  until  some  proposition  for  filling  these 
offices  less  objectionable  to  me  than  that  of  elec- 
tion is  presented. 

I  supported  this  amendment,  sir,  because  in 
my  judgment  it  will  diminish  in  some  degree  the 
danger  of  corrupt  intrigues  and  selfish  bargains 
and  combinations  at  nominating  conventions  ;  it 
will  enable  the  elector  to  know  better  the  char- 
acter and  qualifications  of  the  candidate  and  thus 
more  intelligently  and  more  safely  to  cast  his 
vote;  it  will  create  on  the  part  of  "the  elector  a 
deeper  sense  of  responsibility ;  it  will  exonerate 
him  from  being  compelled  to  vote  for  those  of 
whom  he  knows  nothing  and  of  whom  perhaps  he 
never  heard ;  and  in  my  view  it  is  the  only  true 
and  consistent  mode  of  carrying  out  the  principle 
of  popular  election,  if  it  is  to  be  applied  to  our 


udicial  tribunals.  I  trust,  sir,  for  the  reasons  I 
lave  briefly  stated  that  some  other  mode  of  fili- 
ng these  offices  than  that  of  election  may  yet  be 
adopted  by  the  Convention — but  if  that  is  not  to 

,  then  I  shall  unwaveringly  adhere  to  the  vote 
[  have  already  given. 

Mr.  TALLMADGE  was  greatly  embarrassed  and 
very  much  puzzled  how  to  consider  and  decide  on 
this  motion  to  reconsider.  At  the  early  part  of 
the  session  they  had  been  taught  again  and  again 
how  absolutely  necessary  it  was  that  all  these 
matters  relative  to  the  election  of  all  the  candi- 
dates for  office  should  be  given  to  the  "dear  people." 
And  yet  now  they  are  asked  by  the  very  same  peo- 
ple to  unlearn  all  that  they  have  been  taught  and  to 
take  the  back  track.  How  could  any  one  act  cor- 
rectly, with  such  a  contradiction  of  views?  He 
voted  yesterday  for  the  motion  which  gentle- 
men now  wanted  to  reconsider,  and  he  was  proud 
that  he  had  so  voted  ;  and  he  would  stick  and 
stand  by  that  vote. 

Mr.  SWACKHAMER  said,  that  although  he 
had  voted  yesterday  for  the  election  of  judges  by 
single  senate  districts,  he  would  to-day  vote  for  a 
reconsideration.  He  conceived  this  course  due  to 
gentlemen  who  preferred  another  mode  of  elec- 
tion— the  election  by  judicial  districts  or  general 
ticket.  While  he  considered  the  election  of  judges 
an  important  principle,  yet  the  manner  of  elec- 
tion was  a  matter  of  detail  about  which  he  would 
not  dispute  with  gentlemen.  He  had  on  a  previ- 
ous occasion  given  his  views  on  the  judiciary 
question  and  the  election  of  judges,  to  which  he 
still  adhered.  He  was  in  favor  of  the  election  of 
judges  by  the  people  in  any  shape  in  which  it 
could  come.  Many  gentlemen  had  said  they 
would  not  vote  for  their  election  unless  they 
could  have  their  own  way  in  relation  to  such  elec- 
tion. He  would  not  say  this  was  a  mere  subter- 
fuge for  opposing  this  just  and  democratic  mea- 
sure. He  merely  rose  for  the  purpose  of  showing 
the  very  strange  position  in  which  members  had 
placed  themselves.  The  gentleman  from  Oneida 
(KIRKLAND),  and  the  gentleman  from  Seneca 
(BASCOM),  and  the  gentlemen  from  Dutchess 
(TALLMADGE),  had  all  professed  to  be  strongly 
in  favor  of  the  election  of  judges  by  the  people, 
while  it  seemed  to  him  that  their  whole  argument 
was  against  the  measure,  and  he  should  be  agree- 
ably disappointed  if  two  out  of  the  three  did  not 
finally  vote  against  the  proposition.  The  first 
gentleman  had  even  gone  so  far,  in  his  attempt  to 
frighten  this  body  as  to  refer  to  that  much  abused 
state,  Mississippi.  This  state  had  been  so  fre- 
quently referred  to  during  the  controversy  be- 
tween those  who  believe  in  the  intelligence,  pa- 
triotism and  capacity  of  the  people  for  self- 
government,  and  those  who  do  not;  and  the 
libels  against  her  elective  judiciary  were  so 
often  repeated,  that  he  was  apprehensive  that 
the  calumniators  would  eventually  believe  they 
were  telling  the  truth  unless  it  was  refuted.  He 
would  not  now  enter  into  a  defence  of  that  state 
— but  he  must  be  permitted  to  say  that  some  of 
her  most  able  statesmen,  who  were  originally 
opposed  to  the  judicial  election  system,  have 
borne  testimony  to  the  excellency  of  the  judicia- 
ry of  that  state — it  was  the  best  feature  in  her 
government.  The  fact  was  that  this  falsehood 
originated  with  the  repudiators  of  that  state,  and 


792 


of  other  states — men  who  in  the  legislature  of 
that  state  had  violated  their  trust,  sold  themselves 
to  stockjobbers  and  swindlers,  trampled  under 
foot  the  constitution,  and  oppressed  the  people, 
by  mortgaging  their  property  and  taxing  their 
labor  for  the  benefit  of  repudiators.  It  was  in 
this  crisis  that  the  judiciary  stepped  between  the 
people  and  their  oppressors,  vindicated  their 
rights,  and  sustained  the  constitution.  It  was 
for  this  that  the  enemies  of  free  institutions  had 
been  defaming  and  calumniating  that  state,  not 
only  in  this  country,  but  throughout  all  Europe. 
The  second  gentleman  (BASCOM)  has  read  from 
a  book  showing,  as  he  supposed,  the  manner  in 
which  the  people  could  be  controlled  by  party 
leaders — this  was  a  singular  argument  in  favor  of 
the  elective  principle.  The  slang  about  the 
"  dear  people,"  and  all  this  kind  of  talk,  was  for 
the  purpose  ot  bringing  reproach  upon  the  elec- 
tive system,  and  was  unworthy  any  honorable 
member  of  this  Convention.  He  desired  to  see 
this  question  fairly  met  by  gentlemen,  and  with 
this  view  he  would  vote  to  give  them  one  more 
chance,  though  he  was  confident  that  they  could 
not  resist  the  progress  of  republican  institutions, 
or  the  adoption  of  correct  principles  in  this  Con- 
stitution. 

The  debate  was  continued  by  Messrs.  TILDEN, 
and  PATTERSON,  when 

Mr.  MANN  moved  to  lay  the  motion  to  re-con- 
sider on  the  table  and  with  it  the  first  portion  of 
this  section. 

Mr.  MURPHY  enquired  if  the  motion  if  suc- 
cessful would  not  lay  the  whole  section  on  the 
table. 

The  CHAIR  ruled  that  the  amendment  of  Mr. 
MURPHY  having  been  proposed  in  the  first  part 
of  the  section  it  would  apply  only  to  that. 

Mr.  MURPHY  then  enquired  if  the  whole  sub- 
ject would  not  then  be  disposed  of. 

The  PRESIDENT  said  this  12th  section  con- 
sisted of  three  distinct  parts — the  first  of  which 
only  had  been  considered. 

Some  conversation  here  ensued  as  to  the  point 
of  order,  when 

Mr.  MANN,   (at  the  suggestion  of  Mr.  CAM 
BRELENG)   waved  his  motion  so  as  to   move    the 
postponement  of  the  question  for  the  present. 
This  motion  being  debateable, 
Mr.   MURPHY   addressed  the  Convention  in 
support  of  his  amendment. 

Mr.  CAMBRELENG  regretted  that  these  pro- 
positions had  not  been  passed  over.  He  was  de- 
cidedly in  favor  of  electing  judges  of  every  class 
by  the  people,  and  as  they  were  to  be  judges  of 
the  whole  State,  he  preferred  they  should  be 
elected  by  the  State.  But  after  much  discussion 
in  the  committee,  they  had  to  compromise  the 
question,  and  this  he  urged  would  be  the  result 
to  which  the  Convention  should  be  obliged  to 
come.  This  proposition  of  Senate  district  elec- 
tions came  from  a  gentleman  opposed  to  the  elec- 
tion of  judges  by  the  people,  and  was  sustained  by 
such.  11  it  had  come  from  the  other  side,  it  would 
be  a  different  thing.  This  was  adopted  by  a  bare 
majority,  and  would  the  committee  send  su  impor- 
tant a  question  as  this  to  the  people  on  a  meagre 
majority.  Mr.  C.  referred  to  the  nominating  con- 
vention, all  of  which  machinery  would  be  in 
operation  in  the  districts  as  well  as  in  the  state 


Elect  judges  by  the  people  and  both  parties  will 
put  forth  their  best  men.  This  would  not  be  an 
ordinary  election.  And  no  matter  what  the  poli- 
tics of  the  judge,  if  he  has  been  faithful  and  corn- 
Detent,  no  party  machinery  would  defeat  him. — 
The  most  illustrious  and  enlightened  men  for 
ages  had  contended  for  the  principle,  and  its  suc- 
cess, he  urged,  had  been  fully  demonstrated.  The 
gentleman  from  Seneca,  (Mr.  BASCOM)  had  urged 
that  party  should  be  left  entirely  out  of  the  con- 
ideration  of  th^  question.  The  gentlemen  stood 
n  an  isolated  position.  He  was  too  learned  a 
man  not  to  recollect,  (for  Mr.  C.  had  forgotten  the 
precise  language,  but  would  give  the  idea,)  of 
what  Mr.  Burke  once  said  when  placed  in  a  posi- 
tion with  one  of  his  own  party  who  thought  he 
occupied  a  similar  isolated  position.  Mr.  Burke 
ridiculed  the  idea  of  a  free  government  being  ad- 
ministered without  party,  but  his  friend  admon- 
ished that  it  was  illiberal,  and  that  party  had  bet- 
ter be  dropped.  Mr.  Burke  replied  that  he  was 
not  disposed  to  go  into  a  war  on  such  grounds, 
and  to  place  militia  in  opposition  to  regulars,  or 
of  sacrificing  his  friends  one  by  one  by  an  admit- 
ted sacrifice  in  a  most  contemptible  struggle. — 
When  we  shall  see  the  day  arrive,  said  Mr.  C., 
when  we  shall  not  have  conflicts  of  mind  with 
mind,  principle  with  pririciple,when  parties  cease 
to  divide  us,  then  there  will  be  an  end  to  liberty. 
Nothing  but  these  conflicts  kept  alive  the  spirit 
of  liberty,  when  that  shall  cease  our  government 
is  at  an  end. 

Mr.  COOK  called  for  the  previous  question, 
and  there  was  a  second,  and  the  main  question 
ordered. 

The  Convention  refused  to  postpone,  ayes  37, 
nays  68. 

Mr.  STOW  replied  to  Mr.  C.  He  denied  that 
the  illustrious  men  of  this  country  and  of  the  past 
were  in  favor  of  the  election  of  judges,  and  refer- 
red to  Hamilton,  Jay,  and  others,  in  illustration 
of  his  position.  In  no  where  but  the  assassin,  re- 
pudiating slave  state  of  Mississippi,  was  this 
ground  sustained. 

Mr.  CAMRRELENG  wished  to  correct  the 
gentleman.  The  gentleman  was  too  well  inform- 
ed not  to  know  that  the  world  was  divided,  by 
two  sets  of  politicians  and  philosophers,  one  of 
whom  believed  in  the  virtue  and  intelligence  of 
the  people,  and  their  capacity  for  self-government, 
and  another,  at  the  head  of  whom  the  gentleman 
himself  had  named  gentleman  who  believed  in  no 
such  principle  whatever — who  had  no  belief  in 
the  virtue,  patriotism,  intelligence  and  capacity 
of  the  people  for  self-government.  What  he, 
(Mr.  C.)  had  said  was,  that  every  philosopher  of 
the  popular  school  had  always  contended  for  this 
principle,  while  every  one  on  the  opposite  side 
had  contended  for  the  opposite  side. 

Mr.  STOW  insisted  that  the  general  voice  was 
in  opposition  to  the  election  of  judges.  He  con- 
sidered the  principle  as  a  fallacy,  and  pointed  to 
the  difference  of  office  in  reference  to  its  applica- 
tion, as  evidence  of  its  fallacy.  He  was  afraid  that 
it  would  make  the  election  so  frequent  as  to  be- 
come oppressive  to  the  people.  We  may  yet 
reach  the  situation  of  degraded  Rome,  where  her 
voters  had  to  be  bought  to  come  to  the  polls.— 
Mr.  S.  then  argued  that  either  the  general  ticket 
election  or  the  single  district  system,  and  advo- 


793 


rated  his  plan  of  appointment  laid  on  the  tabli 
yesterday  as  preferable.  At  some  length  he  ar 
gued  on  this  point,  and  in  oppostion  to  the  elec 
tion  of  judges  by  the  people.  He  denfed  that  the 
people  had  called  for  this  thing,  there  was  no 
evidence  of  it.'  All  there  was  of  it  was  the  adop- 
tion of  some  petty  caucus  resolutions,  or  the  o- 
pinion  of  some  penny  a  liner,  in  a  newspaper. — 
As  well  might  the  birds  that  shrieked  over  the 
Niagara,  be  considered  the  voice  of  the  great  cata- 
ract, as  those  expressions  the  voice  of  this  great 
people — party  conflicts,  he  urged  in  conclusion, 
would  tend  to  warp  the  mind  of  man  however 
sincere  he  might  desire  to  act.  He  wished  his 
vote  to  stand.  But  he  had  endeavored  to  preserve 
a  system  that  had  been  carried  on  as  prosperously 
from  the  very  existence  of  our  government.  As  a 
choice  of  evils,  he  should  vote  for  single  districts 
as  against  the  general  ticket  system.  Even 
adopting  the  general  ticket  system,  it  would  be 
found  that  each  Senatorial  district  would  claim 
its  own  judge — thus  practically  adopting  the 
single  district  system. 

Mr.  KINGSLEY  briefly  explained  the  reasons 
why  he  should  vote  for  the  reconsideration.  Be- 
lieving that  the  majority  report  was  to  be  adopt- 
ed, he  desired  not  to  disarrange  its  operation. 

Mr.  CLYDE  explained  also  the  reasons  why 
he  should  vote  for  a  reconsideration.  He  voted 
yesterday  for  the  amendment  of  Mr.  MURPHY, 
and  did  so  as  a  choice  of  evils.  He  was  in  favor 
of  the  judicial  district  system  as  reported  by  the 
committee. 

The  question  was  then',  taken  on  the  motion  to 
reconsider,  and  it  was  carried — ayes  56,  nays  48, 
as  follows 

AYES— Me?srs.  Anejel,  Brown,  Brundage,  Cambreleng, 
D.D.Campbell,  R.  Campbell,  jr.,  Clark,  Clyde,  Conely, 
Cornell,  Cuddeback,  Dana,  Dubois,  Gardner,  Graham, 
Greene,  Hart,  Hoffman.Hotchkiss,  Hunt,  Hunter,  A.  Hunt- 
tington,  Hutchinson,  Hyde,  Jones,  Kemble,  Kennedy, 
Kernan,  Kingsley,  Loomis,  Mann,  McNeil.  Maxwell, 
Morris  Nellis,  Nicoll,  Powers,  President,  St.  John,  San- 
ford,  Sears,  Sheldon,  Stanton,  Stephens,  Stetson,  Swacft- 
hammer,  J.  J.  Taylor.  W.  Taylor,  Tilden,  Tuthill,  White, 
•\Villard,  Witbeck,  Wood,  Yawger,  Youngs— 66. 

NOES— Messrs.  Archer,  Ayrault,  F.  F.  Backus,  H. 
Backus,  Baker,  Bascom,  Brayton,  Bruce,  Bull,  Burr,  Can- 
dee,  Chamberlain,  Cook,  Crooker.Dodd,  Dorlon,  Flanders, 
Forsyth,  Harris,  Harrison,  Hawley,  Marvin,  Miller,  Mur- 
phy, Nicholas,  O'Conor,  Parish,  Patterson,  Penniman,  Por- 
ter, Iluoades,  Richmond,  Riker,  Salisbury,  Shaver,  Shaw, 
E.  Spencer,  W.  H  •  Spencer,  Stow,  Strong,  Taggart,  Tall- 
madge.  Townsend,  Vache,  Waterbury,  Wwrden,  A. 
"Wright,  W.  B.  Wright,  Young-48. 

Mr.  WORDEN  moved  to  adjourn.     Lost. 

Mr.  WORDEN  protested  against  forcing  a  vote 
on  so  important  a  question  with  so  thin  a  house. 
If  gentlemen  insisted  upon  that  course,  he  should 
feel  it  to  be  his  duty  to  submit  some  remarks. 

Mr.  WHITE  asked  the  gentleman  to  yield,  and 
moved  a  recess,  and  the  Convention  took  a  recess. 


AFTERNOON  SESSION.       * 
At  half-past  four  there  were  27  members  pre- 
sent. 

Mr.  BROWN  withdrew  his  original  amendment 
and  moved  to  amend  the  12th  section,  so  as  to 
make  it  read  thus : — 

"  The  Justices  ol  the  Supreme  Court  shall  be  elected  by 
the  electors  of  the  Senatorial  Districts  of  the  State  at  such 
time  as  may  be  provided  by  law" 

Mr.  MURPHY  moved  to  amend  the  amend- 


ment by  striking  out  the  word  "  Judicial"  and  in- 
sert "  Senatorial." 

Mr.  MANN  :  And  on  that,  sir,  I  move  the  pre- 
vious question. 

Mr.  BROWN  :  And  on  that  move  a  call  of  the 
House. 

The  roll  was  called  and  69  answered  to  their 
names  ;  12  more  came  in,  and  81  then  were  pre- 
sent. 

Mr.  MANN  withdrew  the  call  for  the  previous 
question  to  let  Mr.  WORDEN  explain.  He  could 
have  shown  Mr.  BROWN  that  the  general  ticket 
system  was  not  pernicious.  As  there  were  only 
81  members  present  now,  less  than  when  the  vote 
was  taken  in  the  morning,  he  therefore  hoped  the 
House  would  pass  over  this  section  now,  and  or- 
der a  vote  to  be  taken  upon  it  to-morrow.  Seve- 
ral said  "  No." 

Mr.  WORDEN  then  renewed  the  call  for  the 
previous  question.  This  was  seconded  61  to  14. 

Mr.  GRAHAM  explained  that  he  voted  yester- 
day for  Senate  districts  because  he  thought  there 
was  no  alternative  between  that  and  the  general 
ticket  system ;  but  he  preferred  the  judicial  dis- 
tricts. 

The  main  question  was  ordered  to  be  put. 

The  ayes  and  noes  were  then  called  on  Mr. 
MURPHY'S  amendment  and  resulted,  ayes  45, 
noes  60. 

AYES— Messrs.  Archer,  Ayrault,  F.  F.  Backus,  H. 
Backus,  Baker,  Bergen,  Bull,  Burr,  Candee,  Cook.Crook- 
er,  Dodd,  Flanders,  Forsyth,  Harrison,  Hawley,  Kirkland, 
Marvin,  Maxwell,  Miller,  Murphy,  Nicholas,  O'Conor| 
Parish,  Patterson,  Penniman,  Porter,  Rhoades,  Richmond, 
Salisbury,  Shaver,  E.  Spencer,  W.  H.  Spencer,  Stow) 
Strong,  Swf  ckhamer,  Tail,  Tallmadge.Townsend,  Vache, 
Waterbury,  Worden,  W.  B.  Wright,  Young— 43. 

NOES— Messrs.  Ana:el,  Bascom,  Bouck,  Brown,  Brun- 
dage,  Cambreleng,  D.D.  Campball,  R.  Campbell,  jr., 
31ark,  Clyde,  Conely,  Cornell,  Cuddeback,  Dana,  Dorlon, 
)ubois,  Graham,  Greene,  Hart,  Hoffman, Hotchkiss, Hunt, 
iunter,  A.  Huntington,  Hutchinson,  Hyde,Jones,|Kemble, 
Cennedy,  Kernan,  Kingsley,  Loomis,  Mann.  McNeil,  Mor- 
is, Nellis,  Nicoll,  Powers,  President,  Riker,  Ruggles,  St. 
'ohn,  Sanlord,  Sears,  Sheldon,  Stanton,  Stephens,  Stetson 
Taggart,  J.  J.  Taylor,  W.  Taylor,  Tilden,  Tuthill,  White 
Villard,  Witbeck.Wood,  A.  Wright,  Yawger,  Youngs— 60. 

So  the  amendment  was  lost. 

The  question  was  then  taken  on  Mr.  BROWN'S 

Amendment,  and  it  was  carried— ayes  86,  noes  17. 

AYES— Messrs.  Archer,   Ayrault,    F.   F.   Backus,   H. 

Backus,  Bascom,  Bergen,  Bouck,  Bowdish,  Brown,  Brun- 

age,  Bull,  Burr,  Cambreleng,    D.  D.  Campbell,  R.  Camp- 

>ell,  jr.  Clark,  Clyde,  Conely,  Cook,  Crooker.Cuddtback, 

)ana,  Dodd,  Dorlon,  Dubois,  Flanders,  Forsyth,  Graham, 

Greene,  Hart,  Hawley,  Hoffman,  Hotchkiss,    Hunt,    Hun- 

er,  A.  Huntington,    Hulchinson,    Hyde,  Jones,    Kernan, 

Cingsley,  Loomis,  Mann,  McNeil,  Marvin,  Maxwell,  Mil- 

ir,  Morris,  Nicholas,  Parish,  Patterson.Penniman,  Porter, 

owers,  President.  Rhoades,  St.  John,  Salisbury,  Sanlord, 

ears,   Shaver,    Sheldon,    Simmoas,   E.  Spencer,  W.  H. 

pencer,  Stanton,  Stephens,   Strong,   Swackhamer,  Taft, 

'aggart,    J.J.Taylor,    W.Taylor,    Tilden,   Townsend, 

Jut  hill,  Waterbury,  Willard,  Witbeck,    Wood,    Worden. 

A.  Wright,  W.  B.  Wright,  Yawger,  Young,  Youngs— 86. 

NAYS— Messrs.    Angul,     Cornell,    Harrison,    Kemble, 

Kennedy.  Kirkland,  Murphy,  Nellis,  Nicoll   O'Couor,  Ri- 

:er,  Ruggles.  Stetson,  Stow,  Tallmadge,  Vache,  White 

Mr.  MURPHY  gave  notice  of  a  motion  to  re- 
econsider  the  last  two  votes. 

Mr.  NICOLL  moved  to  add  to  the  section  as 
mended,  "  but  not  within  ninety  days  before  or 
ftet  the  general  annual  election."  Mr.  N.  aup- 
>osed  it  was  desirable  to  remove  the  election  of 
udges  as  far  from  the  influence  of  party  conflicts 
as  possible.  This  was  a  question  upon  which  the 

•74 


794 


purity  of  our  judiciary  and  the  liberties  of  the  peo 
pie  greatly  depended. 

Mr.  RICHiMOND  hoped  the  amendment  woul 
not  pass.  He  believed  the  people  would  act  a 
wisely  upon  this  subject  at  a  general  election  a 
at  one  held  specially  for  the  purpose  of  electin; 
judges.  The  people  would  all  be  out  then,  an> 
at  other  times  they  would  not  be  no  likely  to  giv 
their  attention  to  this  subject,  and  the  whole  con 
trol  would  be  thrown  into  the  hands  of  those  wh 
were  most  interested  in  the  choice  made. 

Mr.  PERKINS  opposed  it.  He  said  the  cost  o 
an  election  was  now  half  a  million  of  dollars  ;  h 
was  for  having  but  one  election  each  year. 

Mr.  SPENCER  said  that  90  days  preceding 
would  be  in  the  middle  of  harvest.  He  woulc 
move  to  insert  40  days  instead  of  90. 

Mr.  PENNIMAN  said  that  if  they  held  a  spe 
cial  election,  intrigueing  demagogues  would  elec 
the  judges. 

Mr.  NICOLL  protested  against  any  such  infer 
ence  being  drawn.  There  would  be  no  more  de 
magoguism  than  if  they  have  it  at  the  genera 
election. 

Mr.  BASCOM  said  that  a  great  question  lik( 
this  should  be  kept  separate  from  the  general 
election. 

Mr.  SHEPARD  said  that  he  was  in  favor  o 
and  defended  the  90  days  plan. 

Mr.  NICOLL  accepted  the  amendment  of  40 
days. 

Mr.  COOK  moved  to  amend  that  it  shall  not  be 
less  than  90  days  before  or  after  the  election  ;  so 
as  to  prevent  any  log-rolling.  This  giving  each 
man  {§2,000  would  control  any  senatorial  caucus. 

Mr.  NICOLL  accepted  it,  provided  they  were 
all  to  be  elected  in  one  day. 
Mr,  PATTERSON  wanted  a  separate  election. 
Mr.  WORDEN  was  in  favor  of  Mr.  COOK'S  mo 
tion. 

Mr.  RHOADES  also  supported  it. 
Mr.  LOOMIS  suggested  that  the  first  election 
for  judges  shall  be  held  the  1st  of  April,  1847— 
the  day  of  most  of  the  town  meetings  in  the  state. 
Mr.  SPENCER  would  suggest  that  the  legisla- 
ture provide  by  law  a  special  election  for  judges. 
Mr.  HOFFMAN  said  they  ought  to  have  it  40 
days  before  the  general  election  of  1847  ;  so  that 
the  term  should  begin  the  1st  of  January. 

Mr.  A.  WRIGHT  wished  to  vote  down  all 
these  plans  and  leave  it  to  the  legislature 

The  ayes  and  noes  were  had  on  having  it  at 
least  40  days  before  the  general  election,  and  it 
was  carried — ayes  56,  noes  47. 

The  CHAIR  :  The  question  now  is  on  the  sec- 
tion, as  amended. 

Mr.  WORDEN  suggested  that  the  judges  of  the 
court  of  appeals  should  be  chosen  at  the  same 
time — but 

Mr.  LOOMIS  objected.  The  judges  of  the  court 
of  appeals  had  better  be  chosen  at  the  annual 
election. 

Mr.  WORDEN  then  moved  to  amend  so  that  it 
should  read;  "  but  the  first  election  of  judges  of 
the  supreme  court,  after  the  adoption,"  &c. 
This  was  adopted. 

Mr.  CONELY  moved  to  amend  by  changing 
the  phraseology,  as  follows  :  "  The  justices  of 
the  supreme  court  shall  be  elected  in  the  respec- 


tive judicial  district  by  the  electors  thereof,"  &c. 
Lost. 

rMr.  HUNT  moved  to  add  to  the  section,— 
"  1  hey  shall  exercise  jurisdiction  only  in  the  dis- 
tricts in  which  tbey  shall  be  elected."  Lost. 

Mr.  W.  H.  SPENCER  moved  to  insert  "  of  the 
judges  of  the  courts  of  appeals"  after  "  election." 
He  thought  unless  the  judges  of  the  appellate 
court  should  be  selected  at  the  same  special  elec- 
tion with  the  judges  of  the  supreme  court,  the 
object  of  a  special  election  would  be  in  a  great 
degree  lost. 

This  amendment  was  negatived. 

Mr.  MANN  moved  to  strike  out  the  first  clause 
of  the  section,  and  insert  as  follows  : — "  The  jus- 
tices of  the  supreme  court  to  which  each  district 
is  entitled,  shall  be  elected  in  the  respective  ju- 
dicial districts  by  the  electors  thereof."  Lost. 

Mr.  PATTERSON  moved  to  add  at  the  end  of 
the  section,  "  The  judges  of  the  court  of  appeals 
shall  be  elected  at  the  same  time."  Lost,  32  to  42. 

Mr.  PATTERSON  thought  it  to  be  equally  im- 
portant to  elect  the  judges  of  the  court  at  the 
same  special  election. 

Mr.  SWACKHAMER  suggested  that  the  same 
amendment  had  been  voted  down. 

The  CHAIR  thought  it  to  be  in  order  inasmuch 
as  it  was  proposed  to  insert  it  in  another  plan. 

The  amendment  was  rejected. 

Mr.  SIMMONS  wished  to  give  a  few  of  the 
reasons  why  he  should  vote  for  this  section.  His 
only  fears  as  to  the  election  of  judges  by  the  peo- 
ple was  that  perhaps  the  term  was  too  short.  If 
the  term  was  a  little  longer  he  should  prefer  a 
popular  election  to  any  other  mode  of  appoint- 
ment. 

The  section  was  then  adopted,  ayes  75,  nays  32. 

Mr.  BROWN  proposed  to  offer  the  following  as 
a  new  section : 

^  The  legislature  may  provide  by  law  for  the  election  by 
he  electors  of  the  judicial  district  composed  of  the  city  of 
New- York,  of  associate  justices  of  the  supreme  court 
therein,  who  shrill  have  power  within  such  district  to  hold 
circuit  courts,  to  preside  at  courts  of  oyer  aud  terminer, 
and  to  act  as  associate  justices,  with  one  or  more  justices  of 
the  supreme  court,  in  holding  general  terms  of  said  court, 
md  to  exercise  and  perform  all  the  powers  and  duties  of  a 
ustice  of  the  supreme  court  at  chambers.  They  shall  be 
compensated  in  like  manner  as  the  justices  of  the  supreme 
court,  and  shall  hold  their  olticps  for  the  term  of  eight 
fears,  and  shall  be  subject  to  the  disabilities  imposed  by 
he  7th  section  of  this  article  upon  the  justices  of  the  su- 
preme court. 

Mr.  BROWN  urged  that  the  population  of  New 
fork  was  no  criterion  by  which  to  judge  of  the 
egal  force  required  them.  He  therefore  thought 
t  would  be  doing  injustice  to  the  city  unless  some 
neans  were  provided  to  meet  the  exigencies  of 
he  case.  Mr.  B.  thought  the  proposition  would 
>e  sufficient,  and  went  on  to  explain  and  advocate 
he  proposition.  The  Convention,  when  it  reach- 
d  the  13th  article  could  preserve  the  Superior 
ourt,  and  the  court  of  Common  Pleas,  if  the 
Convention  so  pleased. 

Mr.  STRONG  moved  to  add  after  the  words 
he  "  the  city  of  New-York,"  the  words  "  and 
lochester." 

Mr.  NICOLL  said  if  the  wishes  of  the  New- 
Vork  delegation  were  to  be  gratified  in  this  mat- 
er, he  would  move  a  reference  of  the  matter  to 
bat  delegation. 

Mr.  STRONG  briefly  supported  his  amend- 


795 


ment,  as  equally  demanded  by  the  press  of  busi- 
in  the  county  of  Monroe. 

Mr.  STOW  wished  to  move  to  add  the  district 
in  which  Buffalo  was  situated. 

Mr.  MORRIS  suggested  a  general  provision, 
authorizing  the  legislature,  from  time  to  time,  as 
the  business  exigencies  of  any  judicial  district 
might  require,  to  provide  for  the  election  of  one 
or  more  associate  justices  of  the  supreme  court 
in  such  district,  who  would  have  all  the  powers 
of  the  justices  of  the  supreme  court,  except  sit- 
ting in  bane  and  in  the  court  of  appeals. 

Mr.  STRONG  was  opposed  to  increasing  the 
judicial  force  for  the  particular  benefit  of  New- 
York. 

Mr.  WORDEN  was  satisfied  that  this  matter 
was  worthy  of  serious  consideration,  and  he 
therefore  urged  that  this  matter  should  be  special- 
ly referred  to  the  judiciary  committee. 

Mr.  STRONG  here  proposed  the  amendment 
suggested  by  Mr.  STOW. 

Messrs.  KENNEDY  and  STOW  had  leave  to  re- 
cord their  votes  against  the  12th  section  as 
amended. 

And  then  the  Convention  adjourned. 

THURSDAY,  (79M.  day)  Sept.  3. 

Prayer  by  the  Rev.  Mr.  POHLMAN. 

Mr.  J.  J."  TAYLOR  from  the  select  committee 
on  preparing  abstracts  of  returns  from  clerks  of 
law  courts  made  another  report,  which  was  re- 
ferred. 

Mr.  BROWN'S  proposed  section  then  came  up 
for  consideration;  'it  related  to  the  judicial  force 
of  New- York  city,  and  was  presented  last  eve- 
ning. 

Mr.  STRONG  wished  to  add  the  cities  of  Al- 
bany, Utica,  Rochester  and  Buffalo  to  New  York. 

Mr.  PERKINS  said  the  amendment  of  the  gen- 
tleman from  Monroe  was  evidently  right,  if  the 
amendment  itself  should  be  agreed  to,  and  the 
number  of  requisite  judges  would  be  not  less  than 
the  number  of  members  of  assembly,  for  equal 
justice  wrould  be  required  for  all  parts  of  the 
state.  By  the  addition  of  four  judges  for  New- 
York,  making  the  number  of  judges  forty,  the 
bar  would  be  enabled  to  have  their  bills  taxed 
and  other  business  done  by  these  judges,  which 
elsewhere  must  be  done  by  supreme  court  com- 
missioners on  the  payment  of  fees.  In  this  there 
was  an  inequality  which  ought  not  to  be  tolera- 
ted. He  then  entered  into  an 'examination  of  the 
proposed  judicial  system,  comparing  it  unfavora- 
bly with  the  existing  system.  He  advocated  the 
uiving  to  the  legislature  the  power  to  erect  sub- 
ordinate courts  in  all  the  counties  of  the  state. — 
11'.'  did  not  believe  that  any  form  of  county  courts 
which  the  Convention  would  consent  to  adopt,  in 
connection  with  the  superior  courts  already  es- 
tablished, would  succeed  at  all.  He  predicted 
that  in  five  years  at  the  most,  the  whole  system 
would  fail.  While  this  was  the  fact,  he  could 
not  agree  further  to  extend  the  number  of  the 
judges  of  the  supreme  court,  but  would  leave  to 
the  legislature  the  duty  of  erecting  such  inferior 
tribunals  as  the  exigencies  of  the  times  may  re- 
quire. 

Mr.  WATERBURY  wanted  to  finish  this  work 
in  righteousness.  He  wished  the  Convention  to 
go  right  on  and  do  up  all  their  business  and  go 


home.  They  had  been  here  long  enough  and  a 
little  too  long. 

Mr.  CROOKER  moved  to  pass  over  this  section 
and  take  up  the  13th. 

Lost — ayes  38,  noes  41. 

Mr.  TOWNSEND  called  for  the  reading  of  the 
memorial  from  the  Convention  in  the  city  of  New 
York.  It  was  read.  Mr.  T.  then  explained  why 
he  voted  for  passing  over  the  section. 

Mr.   NICOLL  said  he  would  have  the  district 

Kay  the  extra  expense  whenever  they  wanted  to 
ave  a  greater  number  of  judges  than  their  popu- 
lation entitled  them  to.     He  moved  to  amend  the 
amendment  of  Mr.  STRONG  to  Mr.  BROWN'S  pro- 
position. 

Mr.  BROWN  accepted  that  part  of  it  which 
limits  the  number  of  judges  to  three. 

The  resolution  as  amended  was  then  read. 

Mr.  MURPHY  said  it  was  understood  that  he 
would  sanction  nothing  that  could  make  a  dis- 
tinction either  for  or  against  any  locality.  He 
would  not  consent  to  give  New  York  any  favor 
that  was  not  enjoyed  by  other  cities  ;  nor  would  he 
take  away  from  her  any  rights  exercised  by  other 
cities.  All  were  entitled  to  the  same  rights  and 
privileges.  He  alluded  to  other  attempts  to  retain 
to  New  York  royal  franchises  and  privileges,  long 
enjoyed,  to  which  he  was  uncompromisingly  op- 
posed. He  had  endeavored  to  draw  a  distinction 
between  private  and  public  franchises,  both  of 
which  were  claimed  by  municipal  corporations. 
It  was  to  the  latter  that  he  was  opposed.  He 
could  not  admit  a  franchise  in  courts  which  could 
not  be  disturbed.  He  would  give  to  every  part 
of  the  state  all  the  judges  that  were  requisite,  but 
they  should  be  state  judges  and  paid  by  the  state, 
and  not  by  particular  cities.  There  had  been 
read  here  this  morning  a  report  from  the  Conven- 
tion in  the  city  of  New- York,  claiming  the  pre- 
servation of  the  local  courts  in  that  city  on  ac- 
count of  the  antiquity  of  their  charters,  some  of 
them  extending  as  far  back  as  Gov.  Montgomery. 
He  (Mr.  M.)  could  not  agree  to  recognize  as  sa- 
cred any  franchise  of  this  nature.  He  was  wil- 
ling to  grant  to  New- York  city  all  that  she  could 
claim  in  common  with  other  cities  of  the  state, 
and  no  more,  and  therefore  to  provide  for  her  an 
adequate  judicial  force  for  all  her  business  at  the 
expense  of  the  state,  as  was  provided  for  the 
country. 

Mr.  CAMBRELENG  did  not  wish  to  engage  in 
this  war  between  New-York  and  Brooklyn. 

Mr.  MURPHY  said  the  gentleman  from  Suf- 
folk did  him  injustice,  he  had  not  made  nor  did 
he  invite  a  war  with  New- York  city  in  favor  of 
his  own  or  any  other  city.  He  could  not  consent 
to  be  charged  with  such  motives. 

Mr.  CAMBRELENG  did  not  intend  to  do  so. 
He  said  that  the  legal  gentleman  here  and  else- 
where had  all  complained  that  the  courts  at  pre- 
sent were  completely  blocked  up  with  business. 
Three  fourths  of  all  the  chancery  business,  and  at 
least  half  of  the  writs  of  error  came  from  the  city 
of  New  York.  He  was  not  willing  after  having 
made  the  agricultural  parts  of  the  State  to  pay  for 
twenty  judges — (more  than  they  wanted)  to  go  on 
now  and  make  them  pay  still  more  for  new  judges. 
He  said  justice  was  a  general  State  officer.  But 
is  one  county  to  be  called  on  to  pay  expenses  of 
the  litigation  ot  men  in  another  county  or  actions 


796 


of  property?  Certainly  not.  Criminal  prosecu- 
tion is  another  affair ;  but  in  all  cases  contending 
for  property  in  suits  of  law,  the  parties  litigating 
ought  to  pay  the  expense.  He  was  willing  to 
give  New  York,  Albany,  Utica,  Rochester,  Buf- 
falo, or  any  town,  as  many  courts  as  they  pleased 
to  have ;  but  let  them  pay  for  them  themselves. 

Mr.  BROWN  said  he  had  no  personal  interest 
in  this  matter,  but  he  wished  to  relieve  New 
York  city  of  the  great  burthen  of  litigation  which 
occurs  there.  There  was  a  class  of  cases  there 
that  did  not  properly  belong  to  local  courts  ;  but 
ought  to  go  to  the  Chancery  court  and  court  of 
appeals.  But  he  would  have  these  suits  taxed 
pro  rata,  and  the  money  go  into  the  State  Trea- 
sury. 

Mr.CAMBRELENG.— How  much  goes  in  now? 

Mr.  BROWN.— Not  a  cent. 

Mr.  CAMBRELENG.— No,  nor  ever  will ! 

Mr.  BRUCE  complained  that  New  York  want- 
ed so  much  special  legislation.  They  asked  for 
a  registry  law — and  to  be  specially  legislated  for 
on  the  license  law,  and  he  knew  not  how  many 
more.  He  (Mr.  BKOWN)  had  said  the  other  day 
that  if  lawyers  and  judges  would  do  in  NewYork 
as  in  the  country,  and  work  as  many  hours,  there 
would  be  a  sufficiency  of  judiciary  force.  And 
yet  this  morning  he  brings  in  this  singular  propo- 
sition to  give  additional  judges.  Mr.  B.  would 
vote  for  no  proposition  that  gave  privileges  to  the 
city  of  New  York,  that  were  not  extended  to  the 
whole  people.  We  had  had  enough  of  this  spe- 
cial legislation  heretofore,  and  it  could  never 
meet  his  sanction. 

Mr.  HUNT  said  that  New  York  city  paid  one- 
half  the  taxes  of  the  state,  and  there  was  some 
reason,  therefore,  why  she  should  have  more 
judges. 

Mr.  STRONG  would  not  give  New  York  city 
any  privileges  that  the  rest  of  the  state  did  not 
have.  The  state  ought  not  to  pay  for  that  litiga- 
tion which  relates  merely  to  the  collection  of 
debts.  Give  this  thing  the  sleep  of  death,  and 
then  tread  lightly  upon  its  ashes.  He  did  not 
want  the  farmers  taxed  to  pay  law  expenses  of 
the  speculators  and  other  fellows  in  New  York 
city. 

Mr.  MORRIS  said  that  in  speaking  and  acting 
on  this  subject,  every  man  ought  to  feel  that  he 
was  not  a  citizen  of  any  particular  locality,  but  a 
citizen  of  the  whole  state — whether  he  lived  at  a 
spot  washed  by  the  Ocean  wave,  or  on  the  top  ot 
the  loftiest  mountain.  He  had  been  alluded  to  by 
one  of  his  colleagues,  as  one  who  always  voted 
with  the  majority,  in  speaking  of  a  proposition 
heretofore  presented  in  reference  to  the  city  of 
NewYork.  He  was  happy  to  admit  that  he  did 
usually  vote  with  the  majority,  because  that  ma- 
jority expressed  a  decision  in  accordance  with  his 
views  of  what  was  right.  The  proposition  re- 
ferred to  he  had  opposed  merely  because  it  was  a 
provision  applied  to  a  certain  locality  only,  and  he 
should  always  oppose  any  attempt  to  make  distinc- 
tions of  this  kind.  He  would  now  read  his  pro- 
position, which  he  wished  10  offer  as  a  substitute 
for  that  of  Mr.  BROWN  : 

"  The  legislature  shall  have  power  from  time  to  time, 
as  the  business  exigencies  of  any  judicial  district  shall  re- 
quire, to  piovideby  law  for  the  election  of  one  or  moro 
assistant  justices  of  the  supreme  court  in  such  district,  who 
shall  have  all  the  powers  of  a  justice  ol  the  supreme  court, 


except  sitting  in  the    court   in  bane    and  the  court  of  ap- 
peals." 

Mr.  M.  thought  that  the  thirty-two  judges 
would  not  be  sufficient  for  the  whole  state.  If 
they  did  not  authorize  any  additional  judicial  pow- 
er to  be  conferred  by  the  Legislature,  and  it  came 
to  be  found  that  they  had  not  provided  enough, 
then  there  would  be  no  relief.  His  amendment 
would  authorize  the  giving  of  additional  judicial 
power,  without  creating  a  separate  tribunal  hav- 
ing the  same  original  jurisdiction. 

Mr.  BROWN  said  that  as  his  proposition  did  not 
meet  with  much  favor — though  he  had  offered  it 
to  oblige  others — he  would  withdraw  it. 

Mr.  WORDEN  asked  Mr.  MORRIS  to  withdraw 
his  proposition,  and  have  a  vote  on  Mr.  CAMBRE- 
LENG'S  suggested  alteration  to  the  13th  section. 

Mr.  MORRIS  said  he  would  stop  talking,  so  as 
to  take  a  vote  on  his  proposition  ;  and  he  called 
for  the  ayes  and  noes. 

Mr.  HARRIS  said  that  the  judicial  force  provi- 
ded for  New  York  city  at  present,  was  not  suffi- 
cient. He  would  suggest  an  amendment,  which 
he  read  : 

Insert  after  '  legislature'  in  Mr.  MORRIS'  amendment, 
"may  provide  by  law  for  the  election,  by  the  electors  ot 
any  judicial  district,of  one  or  more  associate  justices  of  the 
supreme  court,  who  shall  hold  his  office  for  the  same  term 
and  have  all  the  powers  within  such  district,  and  be  sub- 
ject  to  the  same  disabilities  as  a  justice  ot  the  supreme 
court ;  provided  however,  that  the  salary  of  such  justices 
shall  be  provided  for  in  the  law  authorizing  their  selec- 
tion, and  shall  not  be  made  chargeable  upon  the  treas- 
ury of  the  state." 

Mr.  H.  said  that  this  would  give  such  a  flexi- 
bility and  expansibility  to  the  system  as  would 
enable  it  to  meet  the  exigencies  that  might  arise. 
A  fixed  rule  might  endanger  the  system.  This 
was  not  drawn  for  the  exclusive  benefit  of  New- 
York.  The  whole  state  was  interested  in  the 
speedy  and  satisfactory  disposition  of  litigation  in 
that  city.  He  hoped  the  section  would  be  well 
considered  before  the  vote  was  taken.  He  wished 
the  judiciary  system  to  have  a  fair  chance,  for  he 
believed  it  would  then  work  well. 

Mr.  W.  TAYLOR  objected  to  the  amendment 
of  Mr.  HARRIS  as  far  as  it  relates  to  the  pay  of 
judges.  He  wanted  the  system  uniform.  The 
means  taken  to  get  lid  of  the  pay  of  the  judges  by 
State  was  an  objection  to  the  whole  proposition. 
If  a  judge  was  to  be  paid  by  a  certain  locality,  he 
would  be  nothing  but  the  judge  of  that  locality, 
and  thus  there  would  be  an  end  to  the  harmony  of 
the  whole  system. 

Mr.  LOOMIS  said  this  subject  had  been  discuss- 
ed all  day  yesterday,  and  before  then,  and  had 
been  considered  settled.  Gentlemen  started  on 
the  wrong  supposition  that  this  judicial  system 
was  to  be  a  district  svslem.  This  was  wrong. — 
It  was  to  be  the  Supreme  Court  for  the  State.  One 
class  ought  not  to  be  represented  by  their  proper- 
ty, and  not  by  their  numbers.  He  was  opposed 
to  the  amendment  to  the  amendment,  and  also  to 
the  amendment  itself. 

Mr.  HUTCHINSON  moved  the  previous  ques- 
tion. 

This  was  seconded. 

The  main  question  was  ordered.  So  were  the 
ayes  and  noes  on  Mr.  HARRIS'  amendment.  They 
resulted  thus:  ayes  30,  noes  77.  So  it  was  lost. 

The  ayes  and  noes  being  called  on  Mr.  MORRIS* 
amendment  it  was  lost — ayes  27,  noes  81, 


797 


Mr.  LOOMIS  oliered  this  : 

In  case  the  office  of  any  judge  of  the  court  of  appeals  01 
justices  of  the  siiprome  court  shall  become  vacant,  before 
the  expiration  of  the  regular  term  for  which  he  WHS  elect 
ed,  the  vacant}  maybe  filled  by  appointment  by  the  <io 
vi-i  nor  until  it  shall  be  supplied  at  the  next  general  elec 
tion  of  judges,  when  it  shull  be  filled  by  election  for  the 
residue  ol  the  unexpircd  term. 

He  did  this  to  provide  for  filling  vacancies. 

A  MEMBER  :     Oh,  but  office  holders  never  die. 

Mr.  TALLMADGE  moved  to  strike  out  the 
words  "  it  shall  be  supplied,"  and  in  lieu  insert 
the  word  "  the,"  but  withdrew  it. 

Mr.  PERKINS  moved  to  strike  out  all  after  the 
word  "  until,"  and  insert  so  as  to  provide  that  the 
governor  should  fill  the  vacancy  for  the  balance 
of  the  term  of  the  judge  whose  place  is  to  be  sup- 
plied 

Mr.  SWACKHAMER  said  it  was  evident  that 
that  Mr.  PERKINS  was  in  favor  of  giving  the  go- 
vernor the  power  to  appoint  all  these  judges. 

Mr.  PERKINS'  amendment  was  negatived. 

Mr.  BASCOM  moved  to  amend  as  follows  : — 
"  The  legislature  shall  have  the  power  to  fill  the 
vacancy."  This  was  lost 

Mr.  STOW  moved  to  amend  by  adding  "  and 
the  senators  of  the  district."  Lost. 

The  proposition  of  Mr.  LOOMIS  was  carried — 
58  to  16. 

Mr.  CROOKER  then  offered  the  following  as 
a  new  section  relative  to  county  courts  : — 

§  13,  There  shall  be  elected  in  each  of  the  counties  of 
this  state,  except  the  city  and  county  of  New-York,  one 
county  judge  who  shall  hold  his  office  for  four  years,  and 
who  shall  hold  tho  county  court,  perform  the  duties  of  the 
office  of  surrogate,  and  such  other  duties  as  shall  be  pre- 
scribed by  law 

Mr.  SWACKHAMER  asked  why  he  would  ex- 
cept New- York. 

Mr.  CROOKER :  Because  he  thought  one  coun- 
ty judge  would  not  be  sufficient  for  that  county. 

Mr.  BERGEN  moved  to  add  to  exclude  the 
county  of  Kings  as  well  as  New- York. 

Mr.  W.  TAYLOR  sent  up  a  substitute  to  be 
read  : 

There  shall  be  established  in  each  county  a  county 
court  consisting  of  one  judge,  or  more  than  one,  accord, 
ing  as  the  business  and  population  shall  require,  but  not 
to  exceed  in  the  number  of  judges  the  number  of 
members  ol  assembly,  to  which  such  county  may  be 
entitled ;  and  not  to  exceed  three  in  any  county ;  such  jud- 
ges shall  he  elect*  d  by  the  electors  of  the  respective  coun. 
ties,  and  shall  hold  their  offices  for  four  years  respectively. 

Mr.  BERGEN  said  the  surrogate  could  not  do 
all  this  county  court  business  in  Brooklyn. 

Mr.  CROOKER  said  he  should  make  provision 
as  intimated  by  a  subsequent  section,  to  meet  the 
objection  of  the  gentleman. 

Mr.  MARVIN  asked  if  the  gentleman  from 
Cattaraugus  by  the  last  words  intended  to  consti- 
tutionalize  the  powers  of  these  courts  so  as  to 
prevent  any  alteration  by  the  legislative  power. 

Mr.  CROOKER  suggested  a  modification  so  as 
to  meet  the  objection,  by  leaving  power  with  the 
legislature  to  regulate  by  law  the  duties. 

Mr.  SWACKHAMER  entreated  his  colleague 
to  withdraw  his  amendment. 

The  amendment  was  negatived. 

Mr.  RICHMOND  again  reiterated  that  the  com- 
mittee on  the  judiciary  had  given  them  assurances 
that  a  system  of  which  the  thirty-two  judges 
were  a  part,  would  be  complete  and  ample  for  the 
despatch  of  all  its  business.  He  had  not  enter- 


tained that  opinion,  and  consequently  he  moved 
to  strike  down  one-half  of  those  judges  with  the 
intention  of  getting  county  courts,  but  he  was  un- 

<st'ul ;  and  now  additional  courts  and  j; 
were  pressed  by  those  very  gentlemen  win 
the  thirty-two  judges  would  be  sufficient.  This 
afforded  proof  either  that  those  gentlemen  did  not 
believe  the  thirty-two  sufficient,  or  that  a  pen- 
sion system  was  to  be  provided  by  creating  judges! 
with  no  judicial  duties.  He  examined  the  exist- 
ing and  proposed  systems,  and  objected  to  the 
creation  of  an  overgrown  supreme  court  when 
there  were  to  be  so  many  common  pleas  judges 
to  do  the  business.  He  should,  therefore,  oppose 
this  amendment  until  he  could  get  the  number  of 
the  supreme  court  judges  reduced. 

Mr.  MANN  said  that  in  all  the  votes  he  had 
given  sustaining  the  supreme  court  of  the  com- 
mittee, he  had  supposed  there  were  to  be  no  other 
courts.  But  if  we  were  to  have  a  county  court  in 
addition,  instead  of  reducing  the  expenses  of  the 
judiciary  we  should  increase  it  to  a  large  amount. 
He  could  not  consent  to  vote  for  any  county  court 
until  the  number  of  the  supreme  court  judges  was 
reduced  to  at  least  one  half.  He  had  supposed 
from  the  arguments  of  gentlemen  that  this  force 
would  be  adequate  to  all  the  business. 

Mr.  BRUCE  said  that  the  judiciary  committee 
had  expressed  the  belief  that  the  13th  section  al- 
ready made  ample  provision  for  the  inferior 
courts.  If  the  convention  coincided  \\*ith  that 
view  they  would  sustain  the  motion  he  was  about 
to  make.  He  called  for  the  previous  question. 

There  was  a  second,  ayes  52,  nays  18,  and  the 
main  question  being  ordered. 

The  question  being  on  the  amendment  of  Mr. 
TAYLOR,  to  Mr.  CROCKER'S  proposition,  at  the 
suggestion  of  Mr.  LOOMIS,  Mr.  T.  withdrew  all 
but  the  first  section  of  his  amendment. 

The  question  being  taken  by  ayes  and  nays,  and 
the  amendment  was  rejected,  ayes  18  nays  80. — 
The  question  was  then  on  the  section  as  propos- 
ed by  Mr.  CROOKER,  and  there  .were  ayes  37, 
nays  66,  as  follows  : 

AYES— Messrs.  Baker,  Burr,  Cambreleng,  R  Campbell, 
jr.,  Chamberlain,  Clark,  Clyde,  Conely,  Cook,  Crooker, 
Dodd.Greene,  Hart.Hawley/Jrtytckhiss,  Hyde,  Jones, Kem- 
ble,  Kernan,  Kingsley,  Loomis, Marvin,  Maxwell,  Morris, 
JVlunro,  Nellis,  Porter,  Russell,  Sanford,  E.  Spencer,  J.J. 
Taylor,  W.Taylor,  Townsend,Waterbury,Willard,Wood, 
Youngs— 37. 

NOES— Messrs.  Allen,  Archer,  F.  F.  Backus,  H.  Backus, 
Bascom,  Bergen,  Brayton,  Brown,  Bruce,  Lrundage,  Bull, 
D.  D.  Campbell, Candee,  Cuddeback,  Dorlon,  Uubois,  !•  hin- 
ders, Forsyth,  Gardner,  Graham,  Harris,  Harrison,  Hoff- 
man, Hunt,  Hunter,  A.  Huntington,  Hutchinson,  Kennedy, 
Kirkland,  Mann,  McNeil,  Miller,  Nicholas,  O'Conor,  Par- 
ish, Patterson,  Penniman,  Powers,  Khoades,  Richmond, 
Riker,  St.  John,  Salisbury,  Sears,  Shaver,  Shaw,  Sheldon, 
Simrnons.W.H.  Spencer,  Stanton,  Stephens,  Stetson,  Stow, 
Strong,  Swackhamer,  Tat't,  Taggart,  Tilden,  Tuthill, War- 
ren, White,  Worden,  A.  Wright,  W.  D.  Wright,  Yawger, 
Young — 66.  .-» 

So  the  amendment  was  rejected. 
Mr.  HARRIS  proposed  the  following  section  : 
There  shall  be  elected  in  each  of  the  counties  of  this 
state,  except  in  the  city  and  county  of  New  York,  a  judge 
who  shall  hold  his  office  for  four  years.  He  shall  receive 
an  annual  salary  to  be  fixed  by  the  board  of  supervisors, 
which  shall  not  be  increased  or  diminished  during  the 
term  for  which  he  shall  have  been  elected.  He  shall  have 
appellate  jurisdiction  of  all  causes  from  justices  courts, 
jut  shall  have  no  original  civil  jurisdiction.  Such  judge 
shall  also  perform  the  duties  of  surrogate. 

Mr.  IL  could  never  consent  to  allow  the  legis- 


798 


lature  to  organize  courts  under  this  13th  section, 
or  vote  for  a  county  court  with  juries.  On  the 
other  hand,  he  was  satisfied  that  there  was  a  vast 
amount  of  local  business  which  must  be  vested  in 
some  officer,  and  this  he  thought  would  attain  the 
end.  If  the  legislature  saw  fit  to  invest  him  with 
some  small  criminal  business  he  should  not  ob- 
ject, but  he  thought  the  civil  business  of  the  state 
was  already  provided  for. 

Mr.  FORSYTH  called  for  the  previous  ques- 
tion, and  there  was  a  second — ayes  44,  nays  24 — 
and  the  main  question  ordered. 

The  question  being  taken  by  ayes  and  noes — 
there  were  ayes  49,  noes  57,  as  follows : — 

AYES— Messrs.  Archer,  Baker,  Bouck,  Brayton,  Burr, 
Cambreleng,  Candee,  Clark,  Clyde,  Conely,  Cook,  Crook- 
er,  Dodd,  Dorlon,  Flanders,  Graham,  Harris,  Harrison, 
Hart,  Hawley,  Hotchkiss,  Hunter,  Kingsley,  Loomis,  Me 
Neil,  Marvin,  Maxwell,  Miller,  Morris,  Munro,  Nellis,  Ni- 
cholas, Nicoll,  Patterson,  Porter,  Powers,  Sears,  Shaver, 
Shaw,  E.  Spencer,  Stephens,  Taft,  Townsend.Waterbury, 
Wood,  A.  Wright,  W.  B.  Wright,  Young,  Youngs- 49. 

NOES— Messrs.  Ayrault,  Allen,  F.  F.  Backus,  H.  Back- 
us, Bascom,  Bergen,  Brown,  Bruce,  Brundage,  Bull,  D.  D. 
Campbell,  R.  Campbell,  jr.,  Cuddeback,  Dubois,  Forsyth, 
Gardner,  Hoffman,  Hunt,  A.  Hunlington,  Hutchinson, 
Jones,  Kennedy,  Kernan,  Kirkland,  Mann,  O'Conor,  Parish, 
Penniman,  Perkins,  President,  Rhoades,  Richmond,  Riker, 
Russell,  St.  John,  Salisbury.  Sanford,  Sheldon,  Simmons, 
W.  H.  Spencer,  Stanton,  Stetson,  Stow,  Strong,  Swackha- 
mer,  Taggart,  J.  J.  Taylor,  W.  Taylor,  Tilden,  Tuthill, 
Vache,  Warren,  White,  Worden,  Yawger— 57. 

So  the  amendment  was  rejected. 

Mr.  GROOKER  then  proposed  the  following 
section : 

§  — .  There  shall  be  elected  in  each  of  the  assembly  dis. 
tricts  of  this  state,  one  coun.y  judge,  who  shall  hold  his 
office  lor  four  years,  and  who  "shall  within  his  district  hold 
a  court  for  the  trial  of  petty  offences,  perform  the  duties  of 
Surrogate,  and  such  other  duties  as  shall  be  required  by 
law.  >>uch  county  judges  shall  have  appellate  juri  diction 
from  justices'  courts,  and  such  criminal  jurisdiction  as 
shall  be  prescribed  by  law,  but  shall  have  no  original 
civil  jurisdiction. 

Mr.  BROWN  thought  the  vote  given  already 
was  a  clear  indication  that  the  Convention  would 
not  adopt  any  of  these  propositions.  If  the  Con. 
vention  would  adopt  the  13rh  section,  it  would 
leave  it  to  the  Legislature  to  provide  for  these 
courts. 

SEVERAL  :   That  is  just  what  we  do  not  want. 

Mr.  BROWN  said  if  would  be  obliged  to  be  left 
there — the  Convention  had  not  time  to  frame  a  pro- 
position that  would  work.  With  the  addition  of  rhe 
17th  section,  restricting  any  officer  except  justi- 
ces of  the  peace  from  receiving  any  fees  he  thought 
the  matter  might  well  under  the  circumstances 
be  left  to  the  legislature. 

Mr.  COOK  said  that  it  appeared  we  were  to  be 
handed  over  to  the  tender  mercies  of  this  32 
wheeled  carriage  for  all  our  law  reform,  for  the 
purpose  of  hastening  the  catastrophe,  he  would 
call  for  the  previous  question. 

There  was  a  seoond  and  the  main  question  or- 
dered, and  the  amendment  rejected — ayes  3,  nays 
102. 

Mr.  CROOKER  explained  his  vote.  He  did 
not  offer  the  proposition  with  a  view  of  voting  for 
it,  but  solely  to  open  the  subject  for  a  debate  in 
order  that  some  provision  might  be  adopted  after 
a  little  discussion  and  reflection.  He  desired  al- 
so to  lay  on  the  table  a  motion  to  reconsider  the 
vote  on  his  first  proposition. 

Mr.  N.ICHOL  oil'cred  the  following  amend- 
ment : 


§  — •  There  shall  be  in  every  county  a  county  court  hav 
ingthe  same  jurisdiction  which  the  surrogate  now  has, sub. 
ject  to  regulation  by  law-,  and  exercising  such  other  civil, 
criminal  and  equity  jurisdiction  as  maybe  prescribed  by 
law,  subordinate  to  the  jurisdiction  of  the  supreme  court. 


Said  county  court  shall  be  held  by  a  judge  to  be  called  th« 
'udge  of  the  county,  and  who  shall  be  elected  for  five 
years.    The  legislature  m.»y,  it' two-thirds  of  all  the  mem- 


bers  elected  to  each  of  both  houses  shall  deem  it  neces- 
sary ,'pass  a  law  authorizing  each  county,  to  elect  one,  and 
not  to  exceed  two  county  judges,  who  shall  hold  their  of- 
fices for  the  term  of  four  years;  any  one  or  all  of  whom 
may  hold  said  county  court  The  number  of  judges  in  each 
county  to  be  determined  by  the  supervisors  of  such  coun- 
ty. The  first  judge  and  the  county  judges  shall  be  com- 
pensated by  fixed  salaries,  which  shall  not  be  increased  or 
diminished  during  the  term  for  which  they  were  elected, 
and  they  shall  not  receive  any  lees  or  perquisites  of  office 
for  their  own  use. 

Mr.   HOTCHKISS    called    for  the   previous 

question,  and  there  was  a  second,  and  the  main 

question  ordered.    The  amendment  was  rejected. 

Mr.   MARVIN   offered  the  following  amend- 

ment :  — 

5}  —  .  Any  of  the  justices  of  the  supreme  court  may  hold 
the  courts  of  common  pleas  in  any  county. 

'  Mr.  MARVIN  said  it  would  be  recollected  that 
he  had,  from  the  beginning  been  an  ardent  friend 
of  county  courts.  One  of  his  objects,  was  that  the 
people  might  have  the  power  of  doing  the  bu- 
siness in  their  own  counties.  He  did  not  see  why 
county  courts  might  not  be  kept  up  and  a  justice 
of  the  Supreme  Court  furnished  to  each  without 
disturbing  the  system  of  the  committee.  This 
would  be  sufficient  tor  civil  business,  and  further 
provision  may  be  made  for  the  criminal  business. 
If  this  should  be  adopted,  and  more  force  was  ne- 
cessary, the  Legislature  could  create  an  addition. 
al  district  and  four  more  judges. 

Mr.  CROOKER  enquired  if  the  gentleman  be- 
lieved the  force  would  be  sufficient  for  all  this 

Mr.  MARVIN  thought  that  the  force  was  de- 
fective, but  if  these  justices  were  authorized  to 
hold  common  pleas,  it  would  have  a  tendency 
to  keep  them  within  the  districts  in  which  they 
were  elected,  arid  thus  be  able  to  do  more  busi- 
ness. 

Mr.  W.TAYLOR  enquired  if  the  gentleman  in- 
tended to  have  the  Legislature  designate  any  of 
these  Supreme  court  judges  particularly  to  hold 
these  county  courts. 

Mr.  MARVIN  did  not. 

Mr.  TAGGART  suggested  that  the  word  county 
courts  should  be  substituted  lor  common  pleas  — 
He  was  opposed  to  retaining  these  obsolete  terms 
in  the  Constitution. 

Mr.  LOOMIS   briefly  opposed  the   amendment. 

Mr.  BASCOM  said  if  he  understood  this  amend- 
ment, he  rather  liked  it.  It  would  have  the  ef- 
fect of  preventing  the  legislature  from  creating 
these  courts,  and  this  was  what  he  desired. 
this  should  be  adopted,  he  should  offer  a  propo- 
sition which  would  relieve  all  apprehension  of 
difficulty  from  the  blocking  up  of  these  courts. 

Mr.  BRUCE  congratulated  the  Convention  on 
the  progress  made  in  business  this  morning,  and 
called  for  the  previous  question. 

There  was  a  second,  and  the  main  question  or- 
dered, and  the  amendment  rej  ected—  ayes  27, 


.  BASCOM  wished  to  offer  the  following, 
to  come  in  before  this  13th  section.  If  this  mat- 
ter of  county  courts  was  to  be  left  to  the  legisla- 
ture, he  would  prefer  that  they  should  have  the 


799 


choice  of  providing  tribunals,  rather  of  a 
peace-making  character,  than  like  these  county 
courts  which  have  too  often  been  the  hot-beds  o 
.  rel  and  litigation.  It.  was  not  made  impera- 
tive on  the  legislature  to  do  this,  although  he 
should  prefer  that  it  should  be  so : 

There  may  be  established  in  the  city  of  New  York  one 
or  more  tribunals  of  arbitration  or  conciliation,  each  to  be 
co;npi»ed  of  three  arbitrators  or  conciliators,  one  of  whom 
shall  be  elected  clerk  thereof.  They  shall  be  paid  a  rea 
sensible  compensation  to  bo  fixed  by  law,  and  all  fees  re 
ceivcd  by  them  shall  be  paid  into  the  public  treasury. — 
The  legislature  may  provide  for  similar  tribunals  in  other 
localities  of  the  state  if  it  shall  be  deemed  expedient,  anc 
may  aSbrd  parties  inducements  to  submit  their  differences 
to  the  arbitrament  or  conciliation  of  such  tribunals,  by 
regulation  as  to  costs  in  other  courts. 

Mr.  STEPHENS  was  gratified  that  this  ques- 
tion was  now  brought  up.  He  preferred  rather 
to  leave  it  discretionary  than  to  make  it  manda 
tory  on  the  legislature  to  erect  these  tribunals, 
for  the  reason  that  it  might  otherwise  be  stifled 
here.  As  it  stands  he  could  not  conceive  that 
any  evil  could  grow  out  of  it. 

Mr.  STETSON  referred  to  the  revised  statutes 
providing  for  the  arbitration  of  suits,  as  covering 
all  the  ground  designed  to  be  altered  by  this 
amendment. 

Mr.  MANN  moved  to  add  after  the  word  con- 
ciliation in  the  third  line,  "only  one  of  whom 
shall  be  of  the  legal  profession." 

Mr.  RICHMOND  said  the  difference  between 
the  section  of  the  R.  S.  was  that  then  either  par- 
ty might  refuse  to  go  into  the  conciliation  courts, 
while  here  the  parties  were  required  to  go  there 
first. 

Mr.  STETSON  asked  if  the  gentleman  desired 
to  force  thi*  reconciliation  upon  parties. 

Mr.  RICHMOND  would  oblige  parties  to  go 
there  first. 

Mr.  STEPHENS  said  the  law  referred  to  by 
the  gentleman  from  Clinton,  was  a  dead  letter 
from  the  facts  of  its  being  unknown  and  being  so 
encumbered  with  forms  and  expense  as  to  defeat 
its  object. 

Mr.  \VATERBURY  was  informed  by  a  gentle- 
man who  had  resided  for  some  time  in  the  Danish 
islands,  that  this  system  of  courts  had  worked 
admirably.  He  thought  with  such  evidence  that 
the  question  should  not  be  passed  over  without 
due  attention. 

Mr.  KIRKLAND  considered  this  an  inappro- 
priate time  to  call  up  this  question.  If  the  propo- 
sition of  the  gentleman  from  Seneca  would  attain 
the  end  designed,  he  was  satisfied.  The  only 
question  with  him  him  was  whether  the  propo- 
sition was  sufficiently  extensive  for  the  purpose. 
If  this  was  a  salutary  principle  to  be  adopted  he 
would  have  it  extended  throughout  the  State ;  he 
would  not  confine  the  experiment  solely  to  the 
City  of  New  York.  If  the  section  would  attain 
the  cud  he  should  go  for  it,  but  he  thought  we 
should  have  more  time  to  consider  it. 

Mr.  NtCOLL  said  he  heartily  concurnd  in  the 
views  of  his  friend  from  Oneida,  (Mr.  KIKKLAND) 
and  was  decidedly  in  favor  of  a  prov;.su.u  autho- 
ri-inu;  tin-  Legislature  to  establish  courts  of  con- 
ciliaiion.  He  doufoud  much,  however,  tht- pro- 
priety of  making  their  creation  obliyatoiy.  It 
was  an  experiment,  and  no  one  could  s.tlely  assert 
that  it  would  be  successful.  Where  these  tribu- 
nals have  existed,  and  have  been  a  benefit,  a  tar 


different  state  of  society  prevailed  Irorn  what  was 
to  be  found  in  our  country — here  we  were  politi- 
cally, if  not  socially,  equal.  No  man  regarded 
another  as  his  superior,  or  perhaps,  as  more  capaj 
ble  than  himself.  He  could  see  much  in  this  to 
raise  doubts  as  to  the  practicability  of  (lie  propos- 
ed system.  Still  he  was  willing  to  have  it  tried, 
and  would  support  any  measure  which  would  tend 
to  diminish  litigation.  He  regretted  much,  how- 
ever, to  find  his  colleague  (Mr.  MANN)  offering 
an  amendment,  which  he  could  riot  but  regard  as 
invidious,  and  as  in  character  with  that  unworthy 
prejudice  against  the  legal  profession,  which  he 
lamented  to  find  existing  to  so  great  a  degree  on 
this  floor.  It  seemed  to  him  an  absurdity  to  ex- 
clude that  profession  to  the  extent  proposed,  from 
these  tribunals-  When  men  were  bent  on  going 
to  law,  they  generally  had  some  confidence  in 
their  own  views  of  their  legal  rights.  Whose 
duty  ought  it  to  be  to  advise  them  ?  Assuredly 
one  who  was  competent/by  his  knowledge,  learn- 
ing,  and  experience.  Mr.  N.,  therefore,  believed 
that  these  courts  would  not  afford  the  relief  ex- 
pected, unless  constituted  of  lawyers — men  in 
whom  the  people  had  confidence,  in  respect  to 
matters  of  law.  Mr.  N.  said  that  all  respectable, 
men  of  the  profession,  in  thousands  of  instances, 
acted  as  conciliators.  He  could  speak  from  per- 
sonal knowledge  of  the  lawyers  of  his  own  city. 
And  he  would  say  that  a  very  large  majority  of 
them,  who  were  in  extensive  business,  settled  a 
vast  amount  of  litigation.  No  man  could  enjoy 
the  confidence  or  respect  of  the  community,  who 
would  pursue  a  different  course.  Mr.  N.  said  that 
much  as  the  profession  had  been  sneered  at  on 
this  floor,  he  would  say  in  ail  sincerity,  that  he 
believed  them  to  be  the  true  friends  of  legal  re. 
form  ;  and  that  they  would  be  found  on  all  occa- 
sions advocating  all  measures  which  would  tend 
to  diminish  litigation  and  lighten  its  expense. 

Mr.  SWACKHAMER  was  opposed  to  this  r- 
mendment  of  Mr.  MANN.  He  cared  not  whether 
the  court  was  composed  of  lawyers  or  not — he  en- 
tertained none  of  the  prejudices  that  prevailed 
with  some.  He  hoped  this  amendment  would  be 
voted  down.  He  earnestly  desired  to  see  these 
courts  established. 

Mr.  MANN  replied  to  Mr.  S.  All  the  courts 
of  arbitration  ever  held  in  this  Slate,  have  been 
composed  as  he  proposed  in  his  amendment.  The 
object  he  had,  was  to  place  this  court  on  the  same 
ooting.  Thelaw\ers  who  would  be  most;  likely  to 
get  into  those  courts,  would  be,  he  believed,  those 
who  would  be  the  most  desirous  to  promote  litigi- 
'ion.  Also,  high-minded  men  would  not  consent 
o  sit  in  those  rouris  from  I  he  smallnrss  of  the 
compensation  provided.  He  disclaimed  any  in- 
ention  of  casting  any  inflections  on  the  legal  pie. 
erence  as  a  cl 

Mr.  NICHOLAS  should  oppose  the  ammend- 
nent  of  Mr.  MANN  as  lending  to  create  invidi- 
>us  distinctions  between  different  clashes,  of  citi. 
ens.  Mr.  N.  briefly  supported  the  proposition. 

Mr.  MANN'S  amendment  was  then  rejected. 

Mr.  BRUCE  proposed  to  amend  by  striking  out 
he  words  "  city  of  New  York,"  and  insert  in  lieu 
hereof  "any  county  in  the  St.ite." 

Mr.  HAWLKY  urged  that  the  provision  should 
>e  extended  to  any  town  or  ward  in  the  Stale. 

Mr.  BASCOM  did  not  desiie  the  ceurt  to  settle 


800 


meie  justices  of  the   peace  quarrels.     He   desirec 
to  have  it  Sfftle  the  large  quarrels. 

Mr.  BRUCE  thought  that  this  amendmen 
would  attain  the  end  desired  by  Mr.  HAWLEY. 

Mr.  HUNT  moved  to  amend  so  that  it  shoul< 
provide  for  conciliation  courts  in  any  town  o: 
county. 

Mr'  TAGGART  answered,  the  proposition  al 
ready  provided  for  this. 

The  amendment  of  Mr.  HUNT  was  rejected. 

Mr.  BURR  dsired  to  have  the  legislature  mak< 
it  compulsory  on  parties  to  go  into  these  courts. 

The  amendment  of  Mr.  BRUCE  was  then  adopt 
ed. 

Mr.  KIRKLAND  proposed  the  following  sub 
stitute  for  the  proposition,  briefly  urging  it  as  be 
ing  more  direct : 

"Tribunals  of  conciliation  shall  be  established  by  law 
Such  laws  shall  be  general  and  of  uniloim  operation 
throughout  the  state." 

Mr.  A.  W.  YOUNG  inquired  if  the  legislature 
would  have  power  to  destroy  them  if  they  should 
fail. 

Mr.  BRUCE  thought  not. 
Mr.  KIRKLAND  would  then  modify  his  amend- 
ment so  as  to  leave  it  dis,cretionaay  with  the  le- 
gislature, instead  of  compulsory. 

After  some  further  consideration  Mr.  KIRK- 
LAND withdrew  his  proposition. 

Mr.  HUNT  thought  there  was  no  necessity  of 
providing  imperatively  for  these  conciliators. — 
One- might  be  sufficient. 

After  some  conversation,  it  was  amended  so  as 
to  empower  the  court  to  consist  of  one  or  more 
conciliators. 

Mr.  PATTERSON  said  if  this  proposition  was 
made  compulsory,  it  would  be  the  most  magnifi- 
cent court  ever  established  in  the  Union.  The 
court  of  32  judges  would  sink  into  insignificance. 
How  were  its  officers  to  be  appointed,  how 
chosen,  for  there  was  no  proposition  that  they 
should  be  elected  by  the  people  ?  He  may  be 
appointed  by  the  Governor  and  Senate,  and  if  so, 
it  would  give  them  more  patronage  than  they  ev- 
er wielded  before. 

Mr.  NICHOLAS  would  insert  after  the  word 
"  conciliators"  the  words  "  to  be  elected  at  the 
annual  town  meeting." 

Mr.  PATTERSON  said  that  would  carry  the 
idea  that  there  was  to  be  one  of  these  courts  in 
every  town.  Then,  why  not  abolish  the  justices 
courts  at  once  ? 

Mr.  NICHOLAS  would  modify  his  amendment 
by  providing  for  the  election  in  such  manner  as 
the  legislature  may  direct. 

Mr.'  PATTERSON  said  that  would  make  it  a 
little  better.  Mr.  P.  said  there  was  to  be  no  li- 
mitation upon  the  power  of  these  courts,  and 
what  then  became  of  the  right  of  trial  by  jury  in 
all  amounts  over  $20  ?  Defendants  would  be  com- 
pelled to  go  into  these  courts  at  the  instigation 
of  the  plaintiff,  and  compel  him  to  waive  that 
right. 

Mr.  NICHOLAS  would  add,  but  such  arbitra- 
ments shall  in  no  case  preclude  the  right  of  trial 
by  jury. 

Mr.  PATTERSON  said  that  then  the  proposi- 
tion was  to  make  a  good  justices  court  perhaps  in 
every  town,  in  which  equity  and  law  by  this 
court  would  be  mixed  up.  Mr.  P.  thought  the 
plan  would  never  operate. 


Mr.  STEPHENS  said  that  if  the  gentleman 
had  heard  this  proposition  he  never  could  have  pre- 
sented it  in  the  light  he  has.  There  was  no  com- 
pulsory provision  about  it  at  all.  No  man  would 
be  compelled  to  waive  the  right  of  trial  by  jury. 
Its  great  recommendation  was  that  it  was  a  vol- 
untary tribunal.  The  only  clause  that  was  in  any 
way  or  shape  compulsory,  was  the  one  allowing 
the  legislature  to  offer  if  deemed  expedient,  in- 
ducements to  parties  to  come  before  the  court. — 
Even  that  was  not  in  the  slightest  degree  com- 
pulsory. 

Mr.  PATTERSON  said  if  there  was  no  com- 
pulsion about  it,  then  it  was  precisely  on  the  same 
footing  that  arbitrators  now  were  under  the  re- 
vised statutes. 

Mr.  HAWLEY  believed  the  question  was  not 
fully  understood,  and  in  order  to  afford  time  for 
reflection,  he  would  move  that  its  further  consid- 
eration be  postponed  until  the  remainder  of  the 
article  was  passed  over. 

The  motion  was  rejected. 

Mr.  FORS YTH  opposed  the  system  of  concilia- 
tion courts  in  any  form  as  unsuited  to  our  system 
of  government. 

Mr.  MURPHY  also  opposed  the  proposition. 

Mr.  NICHOLAS'  amendment  providing  for  the 
election  of  the  conciliators  as  the  legislature  may 
direct,  was  then  agreed  to. 

Mr.  NICOLL  moved  to  strikeout  the  last  three 
lines  of  the  section. 

Mr.  SPENCER  moved  to  adjourn.  Lost,  39 
to  56. 

Mr.  YOUNGS  moved  the  previous  question, 
and  it  was  seconded. 

The  amendment  of  Mr.  NICOLL  was  rejected. 

The  section  providing  for  conciliation  courts 
was  then  adopted,  as  follows : — 

AYES— Messr*.  Angel,  Archer,  H.  Backus,  Baker,  Bas- 
com,  Bowdish,  Bruce,  Burr,  Cambreleng,  R.  Campbell,  jr. 
Clark,  Conely,  Cornell,  Dubois,  Flanders,  Greene,  Harris, 
Garrison,  Hunt,  Kemble,  Kingsley,  Kirkland,  Mann,  Mil- 
er,  Morris,  Nellis,  Nicholas,  Nicoll,  Pennimaii,  Rich- 
mond, St.  John,  Salisbury,  Sears,  Shaver,  Shaw,  Sheldon, 
Stanton,  Stephens,  Strong,'  Swackhamer,  Tail,  Taggart, 
Tallmadge,  W.  Townsend,  Warren.  Waterbury,  White, 
Willard,  Worden,  Yawger,  Young— 53. 

NAYS— Messrs.  Allen,  Ay rault.  F.  F.  Backus,  Bergen, 
Jouck,  Brayton,  Brown,  D.  D.  Campbell,  Cook,  Crocker, 
<\>rsyth,  Graham,  Hart.  Hawley,  Hoffman,  Hotchkiss, 
lunter,  A.  Huntington,  Hutchinson,  Hyde,  Loomis,  Max- 
well, Murphy,  O'Couor,  Parish,  Patterson,  Porter,  Presi- 
dent, Rhoades,  Riker,  Russell,  Sanford,  W.  H.  Spencer, 
Tuthill,  Vache,  Wood,  A.Wright,  W.B.Wright,  Youngs 


Mr.  HAWLEY  moved  to  reconsider, 
he  table. 
The  Convention  then  took  a  recess. 


Laid  on 


AFTERNOON  SESSION. 

Mr.  J.  J.  TAYLOR  had  leave  to  record  his  vote  in 
avor  of  the  proposition  for  conciliation  courts — 
VIr.  E.  SPENCER  against  them.  Mr  RHOADES 
lad  leave  to  change  his  vote  to  the  affirmative.— 
VIr.  STRONG  to  the  negative.  Mr.  DANA,  who 
oted  "no,"  had  leave  to  have  that  vote  recorded, 
eiug  omitted  by  mistake. 

The  13th  section  of  the  judiciary  report  was 
ead  : 

§  13.  Inferior  courts  of  civil  and  criminal  jurisdiction 
may  be  established  by  the  legislature,  and  appeals  and 
writs  of  error  therefrom  may  be  brought  to  the  supreme 
ourt  or  court  of  appeals  as  shall  be  provided  by  law. 


801 


Proceedings  U|>ou  this  section  was  waived  by 
consent,  to  allow  Mr.  LOOMIS  to  offer  as  a  separate 
sri-lion,  a  provision  declaring  that  the  tribunals 
Authorized  by  the  last  section  (conciliation  courts) 
shall  not  have  power  to  render  judgments  obliga- 
tory on  parties;  but  that  their  power  shall  be  ad- 
visory only. 

Mr.  BASCOM  said  this  repealed  one  important 
part  of  the  section  establishing  courts  of  concilia- 
tion. 

Mr.  LOOMIS  thought  there  would  be  nothing 
to  prevent  the  legislature  from  creating  courts  ot 
common  pleas  under  the  title  of  courts  ot  concilia, 
(ion.  He  proposed  to  have  these  courts  just  what 
they  purported  to  be  and  nothing  more. 
Mr.  STOW  took  the  same  view. 
Mr.  PATTERSON  thought  it  would  be  wise  to 
decide  what  kind  of  jurisdiction  these  courts  were 
to  have.  There  was  nothing  which  made  them 
subordinate  to  either  the  supreme  court  or  the 
court  of  appeals,  nor  to  declare  that  their  proceed, 
ings  should  be  in  accordance  with  the  form  of  the 
common  law.  Nor,  if  every  thing  was  to  be  un- 
der the  original  section,  did  he  see  that  we  should 
want  any  other  court  in  the  state.  We  had  better 
define  in  the  Constitution  whether  the  powers  ot 
these  courts  should  be  obligatory  or  nuiely  advi- 
sory. 

Mr.  BASCOM  proceeded  to  describe  the  organ 
ization  and  powers  of  these  courts*as  they  existed 
in  Denmark,  at  some  length. 

Mr.  NICOLL,  believing  this  subject  was  suffr 
ciently  understood,  moved  the  previous  question 
and  there  was  a  second. 

Mr.  LOOM  IS  asked  consent  to  change  the  word 
court — to  substitute  the  word  tribunal, 

Mr.  MURPHY  objected— and  Mr.  L's  section, 
as  offered  was  adopted,  52  to  40,  as  follows : 

AYES— Angel,  Ayrault,  H.  Backus,  Bergen,  Brown, 
Brundage,  Bull,  Catnbreleng,  D.  D.Campbell,  Cook,  Cud- 
deback,  Dodd,  Dorlon,  Forsyth,  Gardner,  Graham,  Harri- 
son, Hawley,  Hofl'man,  Hotchkiss,  Hunter,  A.  Huntington 
Hutehinson,  Hyde,  Keruan,  Kingsley,  Loomis,  Maxwell 
Munro,  Murphy,  Neilis,  Nicoil,  Parish,  Patterson,  Porter 
Powers,  President,  Hiker,  Russell,  St.  John,  Sanford,  E 
Spencer,  W.  H.  Spencer,  Stetson,  Stow,  Strong,  J  J.  Tay- 
lor, Townsend,  Wood,,  W.B.  Wright,  Youngs— 52. 

NAYS— Messrs.  Archer,  F.  F.  Backus,  Baker,  Bascom, 
Bowdish,  Bruce,  Burr,  R.  Campbell,  jr.,  Clark,  Conely, 
Cornell,  Dubois,  Flanders,  Greene,  Hunt,  Kemble,  Ken- 
nedy,  Kirkland,  Mann,  McNeil,  Miller,  Nicholas,  O'Conor, 
Penniman,  Rhoades,  Richmond,  Shaver,  Sheldon,  Stanton 
Stephens,  Tail,  laggart,  Tallmadge,  W.  Taylor.  Warren, 
Waterbury,  White,  Worden,  Yawger,  Young— 40. 
Mr.  RICHMOND  moved  a  reconsideration. 
Mr.  BASCOM  moved  a  reconsideration  of  the 
vote  upon  the  section  establishing  conciliatior 
courts.  It  might  perhaps  be  further  perfectec 
hereafter. 

Mr.  WATERBURY  laid  on  the  table  a  section 
authorizing  the  legislature  to  establish  courts  o. 
conciliation,  whenever  asked  for  by  a  majority  o 
the  electors  of  any  town,  city  or  county,  the  ex 
pense  thereof  to  be  paid  by  fees. 

The  Convention  then  recurred  to  the  13th  sec 
tion. 

Mr.  CAMBRELENG  moved  to  amend  by  in 
serting  after  "  Legislature5'  the  words,  "man) 
county  at  the  expense  of  such  county." 

Mr.  TAGGART  moved  to  amend  by  insertin; 
"  city  or"  before  "  county." 
Mr.  CAMBRELENG  assented. 
Mr.  STOW  moved  to  strike  out  "  city  or."    K 


ould  not  agree  that  expensive  courts  in  cities 
hould  be  chargeable  altogether  upon  the  cities. 
Arrangements  had  always  been  made  between 
ities  and  the  county  in  which  they  are  located, 
o  divide  the  expenses  of  the  county. 

Mr.  BAKER  moved  that  the  10th  and  16th  sec- 
ions  of  the  report  of  the  judiciary  committee  be 
eterred  to  a  select  committee  of  one  from  each 
icnate  district  to  determine  what  plan,  if  any, 
hould  be  adopted  for  the  organization  of  local 
;ourts. 

Mr.  PERKINS  moved  to  amend  by  recommit- 

ing  the   whole  subject  of  the  organization  of  the 

udiciary  committee  and  the  amendments  thereto. 

Mr.  FORsYTH  moved  the  previous  question  on 

)oih    these  propositions,  and   there  was  a  second. 

Mr.    PERKINS  demanded    the  ayes  and   noes, 

and  the  amendment  was  negatived,  ayes  14,  noes 

•86. 

The  motion  of  Mr.  BAKER  was  also  lost,  ayes 
48,  noes  54,  as  follows  : 

AYES— Messrs.  Angel,  Archer,  Ayrault,  Baker,  Bray- 
on,  Bull,  Burr,  11.  Campbell,  jr.,  Candee,  Crooker,  Dana, 
Dodd,  Dubois,  Forsyth,  Gardner,  Graham,  Hawley,  Hofl- 
man,  Hotchkiss,  Hutchinson,  Kennedy,  Kirldand,  Mann, 
Murphy,  Nicoil,  O'Conor,  Penniman,  Porter,  Russell,  St. 
John,  Sanford,  Shaver,  E.  Spencer,  W.  H  Spencer,  Ste- 
)hens,  Stetson,  Stow,  Taft,  Taggart,  J.  J.  Taylor.  Town- 
send,  Warren,  White,  Willard,  Worden,  A.  Wright,  Young 

NAYS— Messrs.  Allen,  F.  F.  Backus,  H.Backus,  Bascom, 
Bergen,  Bowdish,  Brown,  Bruce,  Brundage,  Cambreleng, 
D.D.Campbell,  Clark,  Conely,  Cook,  Cuddeback,  Dorlon 
Flanders,  Greene,  Harrison,  Hunt,  Hunter,  A.  HuntingtonJ 

Hyde,  Jones,  Kembla,  Kernan,  Kingsley,  Loomis,  McNsil, 
Maxwell,  Miller,  Morris,  Munro,  NelJis,  Nicholas,  Parish, 

Patterson,  Perkins,  Powers,  President.Rhoades, Richmond! 

Riker,  Sears,  Shaw,  Sheldon,  Stanton,  Strong,  W.  Taylor 

Tuthill,  Waterbury,  Wood,W.  B.  Wright,  Yawger, Youngs 

— 54. 

Mr.  BROWN  said  he  should  have  voted  for  the 
proposition  just  rejected,  if  he  could  have  been  as- 
sured that  the  committee  would  have  reported  to- 
morrow morning  ;  and  he  renewed  the  proposi- 
tion, including  in  it  the  two  sections  in  regard  to 
the  courts  of  conciliation,  and  directing  the  com. 
mittee  to  report  at  10  o'clock  to-morrow  morn- 
ing. 

Mr.  CAMBRELENG  did  not  think  it  at  all  pro. 
bable  thaftany  committee  would  be  able  to  report 
any  thing  which  the  Convention  would  agree  to, 
any  more  than  they  would  to  the  proposition  made 
this  morning  by  Mr.  CROOKER,  which  came  with- 
in seven  votes  ol  being  adopted.  He  did  not  be- 
lieve the  business  of  the  Convention  would  at  all 
be  advanced  by  the  method  suggested.  But  goon 
and  perfect,  so  far  as  we  could,  the  report,  and 
then  let  the  gentlemen  consult  together  in  groups, 
and  corne  in  to-morrow  morning  ready  to  settle 
this  questi<  n  definitely. 

Mr.  KEMBLE  moved  to  include  also  the  12th 
section. 

Mr.  RICHMOND  was  opposed  to  any  new  com- 
miitee.  There  was  not  time  to  take  any  such  ac- 
tion. There  was,  in  his  opinion,  only  one  difficul- 
ty about  county  courts,  and  that  was  that  the  new 
Supreme  court  had  been  too  large  and  unwieldy. 
Reduce  the  number  of  those  judges,  and  he  would 
go  for  a  county  court.  He  concluded  by  moving  to 
refer  the  entire  article  to  this  committee  of  eight, 
for  the  purpose  of  remodelling  it. 

Mr.  HOFFMAN  urged  the  propriety  of  adopt- 
ing some  system  of  county  courts.  He  would 

75 


802 


never  leave  the  matter  to  the  Legislature.  It  was 
better  to  give  a  committee  the  opportunity  be- 
tween this  and  to-morrow  morning,  to  agree  on  a 
plan  for  county  courts. 

Mr.  RICHMOND  here  withdrew  his  motion 
and  after  some  further  conversation  between  him 
and  Mr.  BROWN,  Mr.  KEMBLE  withdrew  his  mo- 
tion, and  \ 

Mr.  BRUCE  moved  the  previous  question — but 
there  was  no  second. 

Mr.  SWACKHAMER  moved  to  amend  so  as 
to  exclude  the  section  relating  to  conciliation 
courts  from  the  reference. 

This  was  rejected. 

After  a  further  debate,  in  which  Messrs.  WOR- 
DEN,  BROWN,  SWACKHAMER,  PATTER- 
SON, NICHOLAS,  BAKER  and  RICHMOND 
participated,  the  question  was  taken  on  Mr. 
BROWN'S  resolution  and  it  was  adopted. 

Mr.  HARRIS  gave  notice  of  a  motion  to  recon- 
sider the  vote  on  his  substitute  for  the  13th  sec- 
tion. 

Mr.  PERKINS  gave  the  same  notice  in  relation 
to  the  vote  on  the  4th  section. 

The  PRESIDENT  announced  the  following  as 
the  committee  under  Mr.  BRUCE'S  resolution  : 

Messrs.  BAKER,  BRUCE,  FORSYTH,  R.  CAMP- 
BELL, CAMBRELENG,  TOWNSEND,  STOW  and  W. 
TAYLOR. 

The  convention  then  adjourned  to  8i  o'clock 
to-morrow  morning. 

FRIDAY,    (80th  day)  Sept.  4. 

Prayer  by  Rev.  Mr.  POHLMAN. 

A  memorial  was  received  trom  the  inhabitants 
ot  Whitehall,  praying*  for  the  further  support  of 
the  Free  School  system. 

CANALS,  FINANCES,  &c. 

Mr.  CHAMBERLAIN  ptesented  the  following: 

^  1.  The  aggregate  debt  of  the  state  at  the  time  of  the  adop- 
tion of  this  constitution  shall  not  be  increased,  except  to 
repel  invasion  or  suppress  insurrection;  nor  shall  the  cre- 
dit of  the  state  in  any  manner  be  given  or  loaned  to  or  in 
aid  of  any  individual,  association  orcoiporation. 

§  2.  The  auction  and  salt  duties  and  all  receipts  into  the 
treasury ,  not  appropriated  to  other  funds  or  specific  objects, 
shall  be  appropriated  to  the  use  of  the  general  fund. 

§  3.  The  tolls  collected  on  all  the  canals  and  railroads, 
the  use  of  water  and  all  the  proceeds  of  property  belong- 
ing to  the  canals,  shall  constitute  the  canal  fund  and  shall 
be  appropriated  as  follows: 

^  4.  After  paying  for  all  expense  of  superintending,  col- 
lecting and  ordinary  repairs,  justly  chargeable  to  the  canal 
fund,  $1,500,000  shall  be  appropriated  in  each  fiscal  year, 
commencing  first  July  134t»,  for  twelve  years  as  a  sinking 
lund,  and  after  that.  $2,000,000  in  each  fiscal  year  to  pay 
the  interest  and  redeem  the  principal  of  the  whole  debt  of 
the  state,  until  it  shall  be  fully  paid,  and  shall  not  be  di- 
verted to  any  other  object  whatever. 

§  5.  The  remaining  revenues,  after  complying  with  the 
preceding  section,  shall  be  applied  to  the  enlargement  of 
the  Erie  canal;  the  completion  of  the  Genesee  Valley  and 
Black  River  canals,  and  the  Oneida  river  improvement,  as 
shall  be  directed  by  law. 

§  6.  Provision  may  be  made  by  law  to  make  temporary 
loans  to  meet  any  deficits  or  failures  in  the  re  venues  or  for 
expenses  not  provided  for;  but  the  aggregate  of  such  tem- 
porary loans  shall  not  exceed  $1,000,000.  Besides  such 
temporary  loans,  the  Legislature  shall  not  create  a  debt 
which  in  the  aggregate  shall  exceed  $5,000,000,  except  it 
be  to  repel  invasion  or  suppress  insurrection;  and  every 
law  authorizing  a  loan  oi  money,  except  for  temporary 
purposes,  shall  provide  a  fund  from  available  sources,  for 
the  payment  of  interest  on  such  loans  and  the  extinguish- 
ment of  the  principal  in  twenty -five  years  from  the  time  oi 
contracting  such  loans;  and  the  fund  thus  provided  for  the 
payment  of  interest  and  principal  shall  not  be  diverted  to 
any  other  purpose  whatever. 


§  7.  If  any  state  stocks  outstanding  shall  fall  due,  and 
the  fund  herein  provided  shall  not  be  sufficient  to  meet  the 
same,  the  Legislature  shall  provide  for  such  payment  by 
authorising  the  issue  of  new  stock,  payable  at  the  short- 
est period,  which  shall  enable  the  sinking  fund  provided 
in  the  fourth  section  of  this  article  to  meet  the  same. 

§  8.  The  tolls  on  the  other  stdte  canals  shall  not  be  redu- 
ced until  the  debts  ot  the  state  are  paid  or  provided  lorj 
except  with  a  view  to  increase  the  revenues  thereof. 

^9.  All  the  state  canals,  finished  and  unfinished,  shall 
forever  remain  the  property  of  the  people  of  this  state, 
and  shall  not  be  leased  or  otherwise  disposed  of. 

NOTE — The  foregoing  sections  are  based  upon  a  debt 
of  $22,254,083  78.  excluding  the  contingent  debt  (which  is 
believed  to  be  amply  secured),  and  by  actual  calculations 
at  a  rate  of  5i  per  cent  interest  will  pay  the  whole  debt  of 
the  state  in  less  than  24  years,  and  in  less  than  12  years 
complete  the  unfinished  works  of  the  state. 

Mr.  C.  said  that  this  plan  contained  his  own 
views  on  this  subject,  and  was  the  result  of  much 
and  careful  deliberation;  and  if  adopted,  would 
pay  the  debt  in  the  time  stated,  less  than  twenty- 
four  years,  and  complete  the  canals  in  less  than 
twelve  years. 

It  was  ordered  to  be  printed,  and  referred  to  the 
committee   of  the   whole   having   charge    of  Mr. 
HOFFMAN'S  report  on  Canals,  Finance,  &c.,  &c. 
COUNTY  COURTS. 

Mr.  J.  J.  TAYLOR  presented  the  following, 
which,  at  his  request  was  laid  on  the  table.  He 
had  received  it  from  a  gentleman  in  Allegany 
county  : 

1.  Abolish  our  present  justices  courts. 

2.  Let  the  boards  of  supervisors  divide  each  county  into 
such  a  number  of  judicial  districts,  that  one  man  may  be 
able  to  try  all  the  c&uses,  civil  and  criminal,  cognizable 
before  a  justice  within  each  district,  say  two  or  three  to 
each  member  of  Assembly. 

3.  Elect  one  justice  for  each  district,  either  by  the  elec- 
tors of  the  county  at  large  or  by  the  voters  in  each  district. 

4.  Let  the  clerk  of  each  town  be  a  clerk  of  the  justices 
courts 

5.  Let  the  process  be  issued  by  the  clerk  and  issues  be 
joined  before  him. 

6.  Let  a  list  ot  the  legal  jurors  in  each  town  be  kept  by 
the  clerk,  and  one  or  two  days  previous  to  the  term,  let 
the  clerk  draw  and  the  constable  number  twelve  persons 
to  attend,  out  of   which  jurors  of  six  may  be  drawn    for 
each  cause. 

7.  For  the  purpose    of  facilitating  collection?,   allow  a 
plaintiff'  in    actions  on    contract,  with  the  first  process  to 
have  a  declaration  served  and  bill  of  particulars  ot  his  de- 
mand, and  of  the  credits  he  is  willing  to  allow  the  defend- 
ant, and  unless  the  defendant  put  in  a  plea  within  six  days, 
and  swears  to  a  defence,  iet  judgment  be  enteied  by    the 
clerk  by  default. 

8.  Let  the   justice  have  power  to  set  aside  or   correct 
judgments  improperly  entered  by  the  clerk. 

9.  Let   a  gross  amount  of  justice's  fees  on  each  trial  be 
paid  by  the  plaintiffs  and  recoverable  of  the  defendant,  and 
let  such  fees  be  paid  into  the  county  treasury. 

10.  Let  each  justice  be  paid  a  competent  salary  out  of  the 
county  treasury. 

11.  Let  one  or  more  justices  be  elected  in  each  town  as 
conservators  of  the  peace,   with  power  to  issue  warrants 
and  hold  criminals  to  trial,  &c. 

THE  JUDICIARY. 

Mr.  BAKER,  from  the  select  committee  of 
eight  on  that  subject,  presented  the  following : 

10.  Surrogates  shall  be  elected  for  four  years.  They 
shall  be  compensated  by  fixed  salaries;  and  they  shall  not 
receive  to  their  own  use  any  fees  or  perquisites  of  office. 
The  Surrogate  may  be  made  a  judge  of  any  inferior  court 

hich  may  be  established  in  any  county. 

§  13  Inferior  courts  of  civil  and  criminal  jurisdiction 
may  be  established  by  the  legislature  in  any  county  upon 
the  petition  of  its  Board  of  Supervisors,  at  the  expense  of 
the  county,  and  appeals  and  writs  of  error  therelrom  may 
be  brought  to  the  .Supreme  Court  or  Court  of  Appeals,  as 
shall  be  provided  by  law.  But  the  judges  or  justices  ol 
all  such  ceurts  shall  be  elected  by  the  county,  city  or 
town,  for  which  they  shall  be  chosen,  shall  hold  their  of- 


803 


for  lour  years,  shall  have  no  power  of  appointment  to 
office,  aud  shall  be  compensated  by  fixed  salaries. 

^  — .  There  may  be  established  in  any  county  one  or 
more  tribunals  of  conciliation,  each  to  be  composed  of  not 
more  than  three  conciliators,  to  be  elected  as  the  legisla- 
ture may  direct.  They  shall  be  paid  a  reasonable  com- 
pensation to  be  fixed  by  law,  and  all  fees  received  by  them 
shall  fee  paid  into  the  county  treasury.  The  legislature 
may  afford  parties  inducements  to  submit  their  differences 
to  the  conciliation  of  such  tribunals  by  regulation  as  to 
costs  in  other  courts. 

§  — .  The  courts  by  the  last  section  authorized,  shall 
have  no  power  to  render  judgment  to  be  obligatory  upon 
the  parties,  except  the  parties  voluntarily  submit  their 
matters  in  difference,  and  agree  to  abide  the  judgment  or 
assent  thereto  in  the  presence  of  the  court  in  such  cases 
as  shall  b4  prescribed  by  law. 

^16  The  court  for  the  trial  of  impeachments  and  the 
correction  of  errors,  the  court  of  chancery,  the  supreme 
court,  and  the  county  courts  as  at  present  organized,  are 
abolished. 

Mr.  CROOKER  presented  the  following  as  a 
substitute  for  the  report  of  the  committee: 

§  13.  There  shall  be  elected  in  each  of  the  counties  of 
this  state,  except  the  city  and  county  of  New  York,  one 
county  judge,  who  shall  hold  his  office  for  four  years. 
The  county  judge  shall  hold  the  county  court,  perform  the 
duties  of  the  office  of  surrogate,  and  such  other  duties  as 
shall  be  prescribed  by  law.  The  county  court  shall  have 
such  jurisdiction  of  causes  arising  injustices  court  as  shall 
be  prescribed  by  law,  but  shall  have  no  original  civil  juris- 
diction except  in  special  cases  to  be  prescribed  by  law. 

The  county  judge,  with  two  justices  of  the  peace,  may 
"hold  courts  of  sessions  with  such  criminal  jurisdiction  as 
the  legislature  shall  prescribe,  and  perform  such  other  du- 
ties as  may  be  required  by  law. 

The  county  judge  shall  receive  an  annual  salary,  to  be 
fixed  by  the  board  of  supervisors,  which  shall  be  neither 
increased  nor  diminished  during  his  continuance  in  office. 
The  justices,  for  services  in  courts  of  session,  shallbe  paid 
a  per  diem  allowance  out  of  the  county  treasury. 

In  counties  having  a  population  exceeding  forty  thou- 
sand, the  legislature  may  provide  for  the  election  of  a  sep- 
arate officer  to  peiform  the  duties  of  the  office  of  surrogate. 

The  legislature  may  confer  equity  jurisdiction  in  spe- 
cial case's  upon  the  county  judge.  Appeals  shall  lie  from 
the  county  court  and  court  of  sessions  to  the  supreme 
court  in  bane. 

Interior  local  courts  of  civil  and  criminal  jurisdiction, 
maybe  established  by  the  legislature  in  cities  and  incor- 
porated villages;  and  such  courts,  except  for  the  city  of 
New  York,  shall  have  an  uniform  organization  and  juris- 
diction in  such  cities  and  villages  respectively. 

Mr.  CROOKER  would  l,e  satisfied  if  the  con- 
vention would  only  fix  this  principle  in  the  con- 
stitution, to  limit  the  action  of  the  legislature,  so 
that  they  should  not  be  allowed  to  authorize  more 
than  one  Judge  of  any  county  court. 

Mr.  C.  said  he  had  no  desire  to  consume  a  mo- 
ment of  the  time  of  the  convention,  but  he  appeal- 
ed to  the  convention  to  agree  upon  one  principle 
and  he  should  be  satisfied,  for  he  was  unwilling 
to  leave  the  power  to  the  legislature  to  fasten  up- 
on us  the  old  and  odious  system  of  five  judges.  If 
they  would  give  the  people  county  courts  with 
one  county  judge,  he  should  be  satisfied,  but  there 
i  l.licsp  judges  scattered  throughout  the 
•late — so  many,  in  short,  that  the  very  title  be- 
came obnoxious.  If  the  members  of  this  conven- 
tion were  called  by  their  titles,  how  often  would 
they  hear  "judge"  this,  or  "judge"  that.  [Mr. 
MORRIS— "  There  are  a  few  "generals".]— 
[Laughter.]  Yes,  and  the  title  of  "  general"  was 
as  objectionable  as  "judge."  He  hoped  the  con- 
vention would  not  leave  such  a  power  to  the  le- 
gisht.ure  as  would  enable  it  to  fasten  the  old  rot- 
ten system  upon  the  people  by  which  such  cattle 
as  many  of  these  judges  were,  were  placed  on  the 
bench.  Numbers  of  such  judges  did  not  add 
strength  or  efficiency  to  such  a  court.  It  was 


constituted  by  a  judge  at  the  head,  and  a  fool  at 
each  side ;  and  strange  spectacles  were  sometimes 
witnessed  in  courts  so  constituted.  To  one  he 
would  advert.  A  judge,  an  intelligent  and  learn- 
ed man.  who  was  presiding  in  such  a  court,  with 
two  such  judges  to  aid  him,  once,  probably  with- 
out consulting  them,  made  a  decision,  as  the  opi- 
nion of  the  court.  When  he  had  concluded,  one 
of  the  side  judges  rose,  and  drawing  himself  up  to 
his  full  length  exclaimed— "•'Such  may  be  the 
opinion  of  the  court,  but  it  aint  mine  by  a  damn'd 

sight.".  The  other  judge  then  rose  and  added 

"  By  the  Great  Jehovah  God  !  nor  mine."  The 
judge  then  quietly  remarked,  "  Gentlemen,  I  am 
overruled."  Now  he  asked  the  convention  if  it 
would  perpetuate  a  system  which  would  put  such 
men  on  the  bench,  and  continue  a  system  which 
was  but  a  mere  mockery  of  justice.  [Mr.  KEN- 
NEDY— "  Are  -they  not  elected  ?"]  No,  they  were 
put  there  by  the  mighty  appointing  power  of  tjhe 
governor  and  senate :  and  there  was  nothing  of 
party  in  it,  for  he  believed  the  two  gentlemen  he 
alluded  to  were  of  opposite  politics.  Perhaps  the 
gentleman  from  Allegany  (Mr.  ANGEL)  could  tell 
the  locality  where  this  scene  was  laid. 

The  PRESIDENT— There  is  no  question  be- 
fore the  convention. 

Mr.  HOFFMAN  said  that  the  report  of  the  se- 
lect committee  was  certainly  first  in  order. 

The  10th  section  was  then  read  : 

Surrogates  shall  be  elected  for  four  years.  They  shall 
be  compensated  by  fixed  salaries,  and  they  shall  not  re 
ceiveany  fees  or  perquisites  of  office." 

The  select  committee's  report  proposed  to  amend 
this  by  adding  after  the  word  "fees,"  the  words 
"  for  their  own  use." 

Mr.  PATTERSON  wished  the  Convention  to 
take  up  that  part  of  the  report  of  the  select  com- 
mittee that  related  to  county  courts ;  fur  if  thev 
adopted  that,  then  surrogates  would  be  needed. 

The  Convention  then  dropped  I  he  10th  and  took 
up  the  13tb  section.  It  gives  to  the  Legislature 
power  to  establish  inferior  courts  of  criminal  ju- 
risdiction. 

The  report  of  the  select  committee  proposed  to 
amend  this  by  inserting  the  words  "In  any  county 
at  the  expense  of  the  county." 

.  Mr.  F.  F.  BARKER  moved  to  amend  as  fol- 
lows : — add  after  the  word  "  county"  the  words 
"  upon  the  unanimous  petition  of  the  board  of  su- 
pervisors." 

Mr.  TALLMADGE  moved  to  strike  out  "  una 
nimous"  and  insert  "  a  majority." 

Mr.  CROOKER  objected  to  the  use  of  the  word 

supervisors"  at  all  in  the  amendment;  they 
were  a  body  whose  sole  object  was  to  save  ex- 
pense. 

JVlr.  F.  F.  BARKER  contended  that  the  board 
of  supervisors  were  the  proper  persons  to  judge 
whether  the  county  wanted  a  court  or  not. 

Some  conversation  followed  between  Messrs 
BROWN,  TALLMADGE,  VAN  SCHOONHOVEN,  and 
LOOMIS. 

Mr.  RICHMOND  was  opposed  to  voting  for  a 
county  court  in  any  shape,  until  they  got  the  32 
judges  of  the  supreme  court  reduced. 

Mr.  CROOKER  was  opposed  to  the  existence 
of  a  board  of  supervisors  at  all.  It  cost  the  coun- 
ty $1,500  a  year  to  audit  the  petty  accounts  of  the 


804 


court,  which  would  be  as  well  done  by  three  com- 
missioners for  $50, 

Mr.  HAWLEY  wished  to  see  the  system  of 
these  courts  of  a  uniform  character  all  over  the 
state. 

Mr.  TALLMADGE  withdrew  his  amendment. 

The  question  was  then  taken  on  Mr-  BACKUS'S 
amendment — ayes  51 — noes  53. 

Mr.  HUNT  offered  the  following :— strike  out 
of  the  report  of  the  select  committee,  the  words 
*'  at  the  expense  of  the  county,"  and  inserting  at 
the  end  of  the  section  the  words,  "  but  no  such 
court  shall  be  a  charge  on  the  state  treasury." 

Mr.  BRUCE,  by  unanimous  consent,  presented 
the  following  plan  for  a 

COUNTY  COURT. 

§  — .  There  shall  be  elected  in  every  county  of  this  state 
(except  the  citv  and  county  ef  New-York)  a  county  judge, 
-who  shall  hold  his  office  for  lour  years,,*  Said  judge  shall 
hold  a  county  court  and  perlormall  the  duties  of  suirogate 
for  said  county, 

§ — .  Such  county  court  shall  have  appellate  jurisdic- 
tion in  all  cases  tried  in  jurisdiction  in  all  cases  tried  in 
justices  courts, and  shall  have  original  jurisdiction  ab  here- 
inafter provided. 

^ — .  The  county  judge,  with  two  justices  of  the  peace, 
(to  be  annually  elected  by  the  board  of  supervisor!-}  shall 
hold  courts  ot  general  sessions  for  the  trial  of  all  orf'ences 
punishable  by  imprisonment  in  the  state  prison  for  a  term 
not  exceeding  ten  years,  and  shall  perform  such  other  spe- 
cial duties  as  may  be  required  byvlaw. 

^  ....  The  county  judge  shall  receive  an  annual  salary, 
to  be  fixed  by  law  and  paid  from  the  county  treasury;  and 
all  moneys  received  by  him  as  surrogate  or  judge  shall  be 
paid  into  the  county  treasury. 

^ — .  In  every  county  having  a  population  of  50,000,  or 
more,  the  legislature  may,  by  a  majority  of  all  the  mem- 
bers elected,  authorize  the  election  ol  one  or  two  associate 
judges,  and  may  confer  upon  such  courts  such  original  ju- 
risdiction as  may  be  necessary.  After  two  years  from  the 
adoption  of  this  constitution,  the  legislature  may,  by  a 
majority  of  all  the  members  elected,  confer  upon  the  court 
of  any  other  county  such  original  jurisdiction  as  the 
business  thereof  may  require. 

The  question  recurred  on  Mr.  HUNT'S  amend- 
ment. 

Mr.  O'CONOR  said  it  was  only  a  verbal  amend- 
ment, to  make  provisions  for  suitors  to  be  charged 
so  much  each  suit,  in  order  to  pay  the  expense  of 
a  court. 

Mr.  DANA  objected  to  Mr.  HUNT'S  amend- 
ment. He  did  not  believe  there  was  much  dan- 
ger in  trusting  the  legislature  to  establish  these 
inferior  courts. 

Mr.  BASCOM  was  in  favor  of  the  amendment. 

Mr.  TAGGART  supported  Mr.  HUNT'S  amend- 
ment ;  so  did 

Mr.  CAMBRELENG,  who  said  there  were  ma- 
ny local  courts  that  could  not  properly  be  called 
county  courts ;  and  they  should  be  supported  in 
the  way  pointed  out  by  Mr.  O'CONOR. 

Mr.  HUNT'S  amendment  was  then  adopted. 

Mr.  COOK  moved  to  amend  the  section  thus : 
— by  adding  at  the  end  of  the  section  the  words — 
"  No  county,  unless  it  contains  50,000  inhabit- 
ants shall  be  entitled  to  more  than  two  judges 
one  of  whom  shall  discharge  the  duties  of  surro- 
gate." On  that  amendment  he  called  for  the  yeas 
and  nays. 

Mr.  RUSSELL  moved  to  amend  still  further 
He  wished  to  have  two  judges  or  more,  to  large 
counties.  He  wanted  justice  brought  home  to 
every  man's  door. 

Mr.  STOW  was  opposed  to  the  adoption  of  any 
general  system  of  county  courts;  what  would  do 


or  the  small  counties  would  not  do  for  the  larger 
Bounties ;  the  latter  should  not  be  compelled  to 
ake  tribunals  they  did  not  want  in  order  to  ac- 
•ommodate  the  smaller  counties  ;  these  little  pet- 
y  tribunals  we;e  the  curse  of  the  country. 

Mr.  COOK  said  he  had  offered  his  amendment 
as  a  protection  to  the  smaller  counties. 

Mr.  RUSSELL  considered  it  necessary  that  the 
egislature  should  have  power  to  establish  county 
courts,  particularly  in  large  and  populous  coun- 
ies  not  having  cities  within  their  limits.  In  his 
(pinion,  it  was  desirable  to  keep  up  old  county 
associations  and  institutions.  In  this  great  state, 
vith  its  diversified  pursuits,  and  interests,  it  wa» 
especially  important  to  give  each  section  the  ful- 
est  scope  for  working  out  its  own  social  progress. 
.n  St.  Lawrence  county,  with  its  large  territory 
and  increasing  population  and  business,  he  felt 
mre  its  citizens  would  be  disappointed  if  they 
should  be  deprived  of  their  own  county  courts. 

It  was  true  that  the  old  system  of  five  county 
udges  for  every  county — whether  having  15,000 
or  80,000  inhabitants — without  discrimination  re- 
garding relative  business  and  litigation,  had  be- 
come justly  odious.  In  the  larger  counties  it  had 
worked  well,  but  in  others,  had  proved  useless 
and  even  ridiculous.  He  hoped  that  the  defects 
of  the  present  system,  would  not  lead  the  Con- 
vention to  the  opposite  extreme,  and  produce  the 
rejection  of  the  positive  good  secured  by  county 
:ribunals.  It  was  unjust  toward  large  counties, 
where  the  system  worked  well,  to  deprive  them 
of  a  desired  local  judiciary,  because  smaller  coun- 
ties not  yet  appreciating  the  distinctive  advantage 
and.  independence  secured  by  local  institutions, 
were  willing  to  have  the  individual  rights  of  their 
citizens  dependent,  solely,  upon  one  great  state 
court.  He  protested  against  such  an  application 
of  consolidation  to  St.  Lawrence  county.  It  now 
had  efficient  county  courts  and  desired  to  retain 
them. 

The  Convention  should  permit  the  legislature 
to  establish  county  courts  of  original  common  law 
jurisdiction,  at  least  in  counties  requiring  such 
courts.  In  artificial  municipal  corporations  such 
courts  are  always  established.  If  a  city  of  10,- 
000  inhabitants  may  have  its  Recorder's  or  May- 
or's court,  why  prohibit  the  same  privilege  to  a 
county  ot  70,000  inhabitants,  not  blessed  with  a 
great  city  ?  There  can  be  no  reasonable  objec- 
tion, unless  judicial  institutions  of  localities  shall 
be  swallowed  up  in  one  great  supreme  court. 
The  Convention  has  already  adopted  the  propo- 
sition ,  that  county  courts  might  be  established  in 
counties  whose  boards  of  supervisors  should  so 
determine.  Where  such  courts  were  obnoxious, 
and  in  cities  otherwise  provided  for,  the  super- 
visors would  not  apply  for  them.  It  was  perfect- 
ly safe  to  leave  the  expediency  of  establishing 
such  courts  to  be  determined  by  the  practical 
working  of  our  new  judicial  system,  and  the  in- 
creasing business  and  population  of  the  various 
sections  of  the  state. 

Mr.  R.  believed  that  several  counties,  whose  de- 
legates now  oppose  county  courts,  would  imperi- 
ously require  them  within  ten  years.  At  all  events 
delegates  who  now  i eject  them  for  their  own 
counties,  ought  not  to  interdict  other  counties 
from  a  desired  and  useful  institution,  maintained 
at  local  expense,  and  without  general  charge  upon 


805 


the  state,  especially  as  it  would  necessarily  relieve 
(he  great  court  ot  thirty-two  state  justices  of  much 
business,  and  give  a  lar^e  share  ot  its  privileges, 
to  the  counties  rejecting  local  courts. 

By  the  lust  section  of  the  committee's  report, 
"all  county  courts,  as  afc  present  organized,  are 
abolished,"  but  the  local  courts  of  cities  are  all 
to  be  retained.  It  would  be  unjust  and  invidious 
to  prohibit  the  legislature  from  extending  the 
same  judicial  rights  to  counties,  which  cities  en- 
joy, if  required  hy  the  counties.  He  regretted  to 
see  gentleman  from  the  cities  so  generally  oppos- 
ing this  extension  of  equal  privileges  to  the  coun- 
try. Did  they  desire  to  prevent  any  possible  ex- 
pansion of  our  judicial  system,  to  meet  future  ex 
igency,  except  in  cities  alone  ?  Such  a  plan 
would  not  be  endured.  Let  counties,  who  desire 
it,  have  their  courts  of  civil  and  criminal  jurisdic- 
tion, tet  the  office  of  surrogate  be  administered 
by  a  judge  ot  these  courts,  the  number  of  associ- 
ate judges  corresponding  to  the  number  of  mem- 
bers of  Assembly  in  each  county,  and  then  their 
local  associations  would  be  preserved,  and  their 
judicial  organization  placed  on  a  more  equal  foot- 
ing with  that  of  cities.  All  the  larger  counties 
would  sustain  usetul  and  respectable  courts,  and 
enable  the  supreme  court  to  be  much  more  effi- 
cient and  valuable,  by  relieving  it  from  a  mass  of 
business  more  properly  belonging  to  local  courts. 

Mr.  R.  proposed  that  each  county  having  a 
county  court,  should  (New  York  city  excepted,) 
have  the  number  of  county  judges  corresponding 
to  the  number  of  members  of  Assembly  from 
the  county,  one  of  whom  should  be  surrogate,  and 
he  hoped  this,  or  a  similar  plan  would  be  adopted 
by  the  Convention. 

Mr.  R  said,  the  Convention  had  adopted  the 
substitute  of  Mr.  CROOKER,  permitting  the  legis- 
lature to  establish  county  courts  for  criminal  pro- 
ceedings, and  to  adjudicate  matters  arising  in  jus- 
tices' courts,  but  prohibiting  jurisdiction  to  origi- 
nate civil  proceedings,  except  in  certain  special 
cases.  By  the  same  section,  local  courts  of  general 
civil  and  criminal  jurisdiction  could  be  established 
in  cities  and  incorporated  villages.  Should  the 
section  be  adopted,  as  it  now  sta«ds,  it  would  sanc- 
tion the  most  anomalous  inconsistency.  No  county, 
however  large  and  populous,  could  have  its  local 
court  of  record  of  original  civil  jurisdiction,  with 
its  jurors  drawn  from  the  whole  body  of  the  coun- 
ty., but  roust  hold  its  court  for  criminal  business, 
and  review  of  justice  court  proceedings,  requiring 
the  same  attendance  of  jurors,  and  of  the  county 
clerk.  Yet  every  incorporated  village  in  the  same 
county  might  have  its  court  with  civil  jurisdiction, 
to  which  much  of  the  local  judicial  business  of 
the  county  would  be  drawn.  The  excellence  of 
our  admirable  jury  system  could  not  so  well  be 
sustained  by  village  jurors,  as  by  those  drawn  from 
the  whole  mass  of  the  county.  Nor  would  these 
village  courts  administer  justice  so  impartially  as 
one  court  appointed  by  the  whole  county. 

Gentlemen  of  the  Convention  were  of  the  opin- 
ion that  the  judges  of  the  supreme  court  will  be 
able  to  discharge  the  duties  of  all  the  courts  of 
law  arid  equity, except  as  a  court  of  final  review; 
and,  in  addition,  the  duties  of  some  300  masters 
and  examiners  in  chancery  •  and  that  it  would  be 
both  sate  and  wise  to  prohibit,  by  stringent  con- 
stitutional rule,  the  establishment  of  county,  or 


courts,  of  concurrent  ongivnd  jutisdie.tion. 
Mr.  R.  could  not  fed  so  cfH.iiii  of  the  success  of 
thin  new  judicial  ex;>criii,i  nt. 

If  one  single  court  of  original  jurisdiction 
should  be  found  inadequate  to  the  disc! 
the  judicial  business  of  the  state,  should  the:  con- 
stitution restrain  the  legislature  from  establishing 
concurrent  tribunals  of  some  sort  to  obviate  the 
difficulty  ?  It  is  urged  that  local  courts  in  cities 
and  villages  may  be  created,  and  that  the  juris- 
diction of  justices  of  the  peace  may  be  extended 
to  all  actions.  Was  this  the  wisest  and  best 
mode  ?  Were  these  inferior  courts  so  well  calcu- 
lated to  attain  the  ends  of  justice,  as  well  regulat- 
ed county  courts  ?  Jf,  from  any  cause,  one  court 
of  32  judges  should'prove  inadequate  to  perform 
all  the  duties  imposed  upon  it,  good  county  courts 
would  afford  the  best  relief.  Power  in  the  legis- 
lature to  establish  them,  need  not  be  exerted,  un- 
less it  should  be  found  necessary.  If  suitors  are 
compelled  to  originate  causes  in  justices  courts, 
and  remove  them  to  the  county  court  for  review, 
capable  and  experienced  county  judges  will  be 
required.  If  the  county  court  has  general  juris- 
diction ,  and  the  presiding  judge  shall  be  properly 
compensated,  efficient  and  sound  county  courts 
will  be  the  result,  in  all  counties  having  much 
business,  and  suitors  will  prefer  to  rest  their 
causes  in  such  courts  except  in  important,  or  un- 
usual, cases. 

Mr.  R.  did  not  like  the  idea  of  one  oversha- 
dowing court,  to  which  all  must  resort  for  jus- 
tice. An  enlightened  rivalry  between  courts  of 
concurrent  powers,  had  long  been  found  benefi- 
cial in  calling  into  exercise  the  best  judicial  abi- 

1  Mr.  VAN  SCHOONHOVEN  objected  that  there 
was  no  limit  to  the  number  of  judges  in  counties 
with  over  50,000  inhabitants. 

Mr.  CROOKER  moved  to  strike  out  two  and 
insert  "  one,  who  shall  be  surrogate." 

Mr.  VAN  SCHOONHOVEN  moved  to  strike 
out  "  in  counties  containing  50,000  inhabitants." 

Mr.  HARRIS  was  opposed  to  this  section. — 
The  legislature  would  be  embarrassed  and  bur- 
dened with  all  sorts  of  schemes  for  local  courts,  if 
it  was  adopted.  He  wanted  ja  uniform  system, 
and  not  all  sorts  of  courts  of  counties. 

Mr.  BROWN  hoped  they  would  cgme  to  a  vote 
on  this  matter  without  delay;  this  Convention 
would  never  agree  on  settling  the  details  ot  these 
local  courts;  the  plau  ot  Mr.  CROOKER  with  a 
slight  modification  he  was  willing  to  go  for.  He 
condemned  the  plan  of  surrendering  the  people's 
power  to  the  will  of  the  board  of  supervisors  ;  so 
that  if  any  board  refused  to  petition  for  a  court, 
why  a  county  would  go  without  a  county 
court.  If  this  section  was  to  be  adopted,  there 
would  be  no  civilized  people  under  God's  heaven 
that  would  have  so  contemptible  a  judicial  system 
as  we  should  have. 

Mr.  BASCOM  said  the  objections  to  a  want  of 
uniformity  in  these  courts,  would  apply  with 
equal  force  to  the  mayor's  courts,  recorder's  courts, 
&c. 

Mr.  O'CONOR  said  that  himself  and  colleagues 
were  in  favor  ol  county  courts. 

Mr.  FORSYTHiwould  not  consent  to  vote  for 
any  place  for  these  county  courts  that  was  not  uni- 
form throughout  the  whole  state.  He  had  riodis- 


806 


trust  of  the  board  of  supervisors  ;  but  he  did  not 
want  an  appeal  from  ajustice's  court  in  one  county 
to  a  court  of  common  pleas,  and  an  appeal  from  a 
justice's  court,  to  the  supreme  court,  in  another 
county ;  this  was  a  state  of  things  that  co'uld  not 
be  tolerated. 

Mr.  BARKER  explained  the  action  of  the  com- 
mittee, of  which  he  was  chairman. 

Mr.  CROCKER'S  amendment  then  came  up 
again  for  consideration.  [It  is  given  above.]  — 
He  withdrew  his  amendment  to  Mr.  COOK'S 
amendment,  so  as  to  get  a  direct  vote. 

Mr.  WILLARD  said  the  legal  gentleman  must 
think  that  the  laymen  were  either  deficient  in  in- 
tellect or  minus  in  memory.  They  were  told 
sometime  since,  that  these  thirty-two  judges 
would  do  all  the  work,  and  that  there  would  be 
no  necessity  for  any  county  courts.  Now  the 
tune  is  changed.  The  old  judiciary  system  cost 
the  state  $30,000;  our  new  system  is  to  cost 
$100,000.  He  would  consent,  perhaps,  to  have  a 
surrogate ;  probably  they  could  not  do  without 
some  such  system.  But  he  thought  it  would  be 
very  injudicious  to  give  him  the  powers  of  a 
judge.  He  wanted  to  see  real  reform  in  this 
matter. 

Mr.  WATERBURY  was  of  the  same  opinion 
It  was  idle  to  have  too  many  of  these  ridiculous 
judges.  Once  they  came  from  Sullivan  co.  to 
Delhi,  and  after  righting  and  quarrelling  with 
each  other  three  or  four  days,  they  all  had  to  go 
back  where  they  came  from,  like  the  dog,  with 
his  tail  between  his  legs, 

Mr.  COOK  said  he  was  in  favor  of  the  plan  ol 
Mr.  CROOKER,  because  it  limited  the  number  oi 
judges;  and  on  that  account  it  was  that  he  had 
offered  his  amendment. 

Mr.  SWACKHAMER  suggested  ,  that  they 
should  pass  over  this  13th  section,  as  amended  by 
the  committee,  and  take  up  Mr.  CROCKER'S  pro- 
position. 

Mr.  CAMBRELENG  said  he  should  vote  for 
Mr.  CROCKER'S  plan  let  the  fate  of  the  13th  sec- 
tion be  what  it  might. 

Mr.  BASCOM  inquired  whether  it  was  possible 
if  the  amendment  ol  Mr.  CROOKER  was  adopted 
to  go  back  to  the  4th  section,  and  reduce  the  uum 
ber  of  judges  there,  He  believed  that  those  judges 
were  competent  to  do  all  the  judicial  business  in 
the  state»  that  we  ought  to  have.  To  add  county 
courts  to  them,  would  be  to  make  them  sinecures 
and  to  increase,  rather  than  decrease,  expense. — 
If  we  were  to  have  a  county  court, he  must  say  lha 
he  preferred  the  president  judge  system. 

Mr.  CROOKER,  in  reply  to  Mr.  BASCOM,  deniei 
thai  (he  proposed  system  would  be  more  expensive 
than  the  present,  and  insisted  that,  on  the  contra 
ry,  it  would  be  far  less. 

The  question  being  taken  on  Mr.  COOK'S  amend 
ment,  it  was  rejected — ayes  38,  nays  44. 

Mr.  CROOKER  then  proposed  his  substitute  to 
the  13th  section,  as  given  above. 

Mr.  MURPHY  moved  to  add,  "  And  such  court 
except  in  the  city  of  iNew  Yoik,  shall  have  an  un 
form  organization  and  jurisdiction." 

Mr.  CROOKER  assented  to  the  amendment. 
Mr.   STETSON  objected  to  that  portion  of  th 
amendment  which  gave  the  county  courts  appe 
late  jurisdiction  in  justices'  courts,  and  propo.se 


amend  so  as  to  leave  it  to  the  legislature  to  say 
ow  these  cases  should  be  carried  up. 

Mr.  HARRIS  moved  to  amend  so  as  to  provide 
hat  the  Board  of  Supervisors  should  fix  the  sala- 
y  of  these  officers. 

Mr.  CROOKER  preferred  to  leave  the  matter 

the  legislature. 

Mr.  VAN  SCHOONHOVEN  sustained  the 
mendment. 

Mr.  SALISBURY  followed   on  the  same  side 

Mr.  CROOKER  said  he  would  withdraw  all 
pposition  to  the  proposition. 

The  question  being  taken,  the  amendment  was 
dopted — ayes  93,  nays  14. 

Mr.  MURPHY  moved  to  amend  by  adding  the 
vords  "  as  such  cases,"  so  as  to  limit  the  appeal* 
o  civil  cases. 

This  was  debated  by  Messrs.  CHATFIELD, 
IROOKER  and  PERKINS,  when  Mr.  M.  with- 
rew  his  amendment. 

Mr.  STOW  moved  to  add  the  words  "  county 
)f  Erie"  after  the  words  "  city  of  New-York,"  so 

to  exempt  Erie  also  from  the  provision. 

Mr.  MURPHY  briefly  opposed  the  proposition. 

Mr.  RUSSELL  opposed  the  proposition  gene- 
ally,  and  could  not  vote  for  it  unless  the  court 
lad  original   civil  jurisdiction  vested  in  it.     He 
moved  to  amend  'in  accordance  with  these  views. 

Mr.  STOW  continued  the  debate,  when 

Mr.  HOTCHKISS  asked  for  the  previous  ques- 
ion,  and  there  was  a  second,  and  the  main  ques- 
ion  ordered. 

The  amendment  of  Mr.  STOW  was  rejected. 

The  question  was  then  taken  on  the  proposi- 
tion of  Mr.  CROOKER  as  amended,  (heretofore 
given,)  and  it  was  adopted  ayes  52,  nays  44,  as 
bllows : — 

AYES— Messrs.  Angel,  Archer,  Baker,  Bergen,  Bow- 
dish,  Burr,  Cambreleng,  Clark,  Cook,  Crocker,  Dodd,  Dor- 
Ion  Flanders,  Forsyth,  Graham,  Harris,  Harrison,  Hart, 
Hawley,  Hotchkiss,  A.  Huntington,  Hyde,  Kemble,  Ker 
nan  Kingsley,  Loomis,  McNeil  Maxwell,  Miller,  Morris, 
Munro,  Murphy,  Nellis,  Nicholas,  Patterson,  Porter,  Pow- 
ers, Bhoades,  Sears,  Shaver,  Stetson,  Swackhamer,  Tag- 
gart  W.Taylor,  Townsend,  Van  Schoonhoven,  Warren, 
Waterbury ,  Witbeck,  Wood,  Youngs— 52. 

NAYS— Messrs.  Ayrault,  F.F.  Backus,  H.Backus,Bouck, 
Brayton  Brown,  Bruce,  Brundage,  Bull,  D.  D.  Campbell, 
Candee,  Conely,  Dana,  Dubois,  Greene,  Hunter,  E.  Hun- 
tington Hutchinson,  Parish,  Penniman,  Perkins,  President, 
Richmond,  Riker,  Ruggles,  Russell,  St.  John,  Salisbury, 
Sanford,  Simmons,  E.  Spencer.W.H.  Spencer,  Stow  rait, 
Tallmadge,  J.  J.  Taylor,  Tuthill,  Ward,  A.  Wright,  W.  B. 
Wright,  Yawger,  Young— 44.  ^ 

Mr.  J.  J.  TAYLOR  laid  on  the  table  a  motion 
to  reconsider. 

The  question  then  recurred  upon  the  section 
as  amended. 

Mr.  A.  HUNTINGTON  said  he  did  not  get 
hold  of  the  question  decided  by  the  Inst  vote.  lie 
voted  against  the  proposition  which  he  had  just 
before  voted  to  sustain.  He  desired  to  change 
his  vote. 

Leave  was  given,  and  the  question  recurred  on 
Mr  CROOKER'S  substitute  for  the  13th  section. 

Mr.  TALLMADGE  rose  not  to  discuss  this 
question,  but  in  justice  to  himself,  to  say  that  he 
was  an  advocate  for  a  county  court,  and  had  so 
expressed  himself  in  the  early  proceedings  of  the 
convention.  He  would  gladly  have  had  such  a 
court  made  a  part  of  the  judicial  system,  which 
would  then,  as  a  consequence,  have  reduced  the 
number  of  tlie  supreme  court  judges  to  twelve  ;  but 


807 


in  this  he  was  unsuccessful.  Now  those  who  de- 
sired county  courts,  have  met  with  no  straight- 
lunviinl  opposition,  but  the  wisdom  of  the  con- 
vention h;is  been  to  nriki-  lunemlments,  and  of  so 
incongruous  a  character  as  to  force  the  friends  of 
county  courts  to  vote  ;ig;unst  their  own  measure. 
He  desired  county  courts — for  he  dissented  en- 
tirely from  the  policy  of  establishing  this  army  of 
judges,  and  had  no  idea  that  they  would  answer 
the  purpose — with  original  civil  jurisdiction. 
The  amendment  was  entirely  discordant  with 
every  rule  of  propriety,  and  he  though  a  friend  of 
a  county  court,  voted 'against  it.  He  denied  that 
by  the  language  of  the  amendment  that  the  legis- 
lature would  have  the  power  to  confer  this  juris- 
diction. As  it  was,  his  only  hope  was  that  when 
this  strange  army  of  supreme  court  judges,  was 
submitted  to  the  people,  it  should  be  in  a  separate 
proposition,  for  he  believed  the  people  would  ne- 
ver take  them  off  our  hands.  In  conclusion  Mr. 
T.  remarked,  that  he  made  this  explanation  in 
order  that  his  votes  might  not  appear  incongru- 
ous, nor  be  understood  as  in  opposition  to  a  mea- 
sure of  which  he  was  an  advocate.  The  objects 
of  amendment  could  not  be  misunderstood.  It 
had  been  to  compel  the  friends  to  vote  against 
their  own  measure. 

Some  further  conversation  ensued,  when  Mr. 
J.  TAYLOR  desired  to  propose  an  additional 
section,  in  substance  that  which  Mr.  PERKINS 
proposed  to  offer — providing  that  the  county 
should  have  such  jurisdiction  of  causes  arising  in 
justices'  courts,  and  such  original  civil  jurisdic- 
tion as  might  be  prescribed  by  law. 

Mr.  RICHMOND  objected  to  the  proposition 
and  it  could  not  be  entertained,  unanimous  con- 
sent being  required. 

Mr.  W.  TAYLOR  asked  leave  to  propose  an 
amendment,  conferring  on  the  legislature,  by  the 
vote  of  a  majority  of  all  elected,  to  authorize  the 
election  of  one  or  two  associate  judges,  in  coun- 
ties having  a  population  of  5U,OUO,  and  to  confer 
original  civil  jurisdiction;  and  after  two  years 
to  confer  on  any  other  county  courts  the  like  juris- 
diction, if  necessary. 

Mr.  WATERBURY  objected,  and  it  was  no 
received. 

Mr.  RUSSELL  said  that  he  should  vote  agains 
the  section,  and  went  on  to  give  his  reasons  fo 
so  doing. 

Mr.  VAN  SCHOONHOVEN  replied,  afte 
some  further  conversation. 

Mr.  BROWN  thought  this  difficulty  might  be 
got  over — if,  as  he  believed,  there  was  a  majority 
here  m  favor  of  giving  the  legislature  power  ove 
this  subject.     To  test  the  sense  of  the  body,  h( 
moved  to  re-corninit  this  section  to  the  committee 
of  eight  with  instructions  to  make  this  exceptioi 
cover  any  case  where  the  legislature  might  see  fi 
to  confer  this  jurisdiction — and  that  they  repor 
instanter. 

Mr.  RICHMOND  occupied  the  time  with 
personal  explanation,  and  withdrew  his  objection 
Mr.  HOFFMAN  advocated  the  resolution  pro 
posed  by  Mr.  BROWN,  and  pointed  out  whereir 
he  considered  the  pending  proposition  was  d«fec 
tive. 

Tne  debate  was  continued  by  Messrs.  CROOKER 

MURPHY,  FORSY  1  H,  and  J.  J.  TAYLOR— whe 

Mr.  CROOKER  moved  to  amend  the  motion  o 


/Jr.  BROWN,  so  as  to  recommit  with  instructions 
o  report  the  following  sections: 

{)  — .  The  legislature  may  cstabJislAa  county  court  to  be 
eid  by  a  single  county  judge,  and  courts  of  sessions  to  be 
eld  by  the  county  judge  and  two  justices  of  the  peace. — 
'he  county  judge  shall  "be  elected  lor  four  years,  and  shall 
erlorm  the  duties  oi  the  office  of  surrogate  and  the  special 
uties  prescribed  by  law.  The  board  of  supervisors  may 
x  the  salary  of  the  county  judge,  and  the  legislature  muy 
rescribe  the  power  and  jurisdiction  of  the  county  court 
rid  court  of  sessions. 

^  — .  Inferior  and  uniform  local  courts  of  civil  and  crimj- 
ial  jurisdiction  may  be  established  by  the  legislature  in 
ities.  In  counties  having  a  population  ol  50,000,  the  le- 
;islature  may  provide  for  the  election  oi  a  separate  officer 
o  perform  the  duiks  of  the  ottice  ot  surrogate. 

§  —  .  The  legislature  may  prescribe  the  number  and  time 
f  election  of  commissioners  in  the  several  counties  to  per- 
orm  certain  duties  of  a  judge  at  chambers  which  shall  be 
pecified  by  law. 

The  debate  was  continued  by  Messrs.  FORSYTH 
and  STETSON— when 

The  Convention  adjourned. 

AFTERNOON  SESSION. 

Mr.  BAKER  would  avail  himself  of  this  oppor- 
unity  to  explain,  briefly,  the  action  of  the  select 
committee,  inasmuch  as  some  gentlemen  seemed 
to  regard  the  13rh  section  as  i  sported  by  him,  as 
antagonistic  to  the  plan  proposed  bv  the  gentle, 
man  from  Chautauque,  (Mr.  CROOKER.)  Imme- 
diately after  their  appointment  last  evening,  the 
committee  assembled,  and  addressed  themselves 
(with  earnest  desire  to  harmonize  the  conflicting 
views  entertained  in  this  body,)  to  the  first  duty 
assigned  in  the  order  under  which  they  were  ap- 
pointed, viz:  whether  it  was  expedient  that  a 
plan  for  the  organization  of  local  courts  should  be 
settled  in  the  Constitution.  This  they  agreed  to, 
affirmatively,  with  great  unanimity;  but,  like  their 
predecessors  in  the  committee  of  thirteen,  when 
they  proceeded  to  make  an  effort  at  perfecting 
such  a  plan,  no  system  could  be  devised  to  which 
a  majority  could  assent.  The  committee  was 
equally  divided,  on  conferring  upon  these  courts 
original  jurisdiction,  as  well  as  to  agreeing  to 
any^of  the  various  plans  which  had  been  sng- 

jted,  providing  such  courts  with  limited  or  spe- 
cial jurisdiction.  Having  failed  in  these  efforts, 
they  returned  to  the  consideration  of  the  13'h  sec- 
tion, referre-1  to  them  and  perfected  it  so  as  to 
meet  the  unanimous  approval  of  the  committee. 

Considering  the  rapid  growth,  in  business  and 
population,  of  our  cities  and  towns,  it  would  pro- 
bably be  found  necessary  to  make  provision  in  the 
Constitution  lor  the  future  organization  c.f  inferi- 
or or  subordinate  courts  in  such  localities,  whe- 
ther a  general  system  for  the  State  were  here 
adopted  or  not.  In  his  view,  therefore,  the  13th 
section,  as  reported,  was  necessary  in  any  event, 
and  would  be  found  to  synchronize  with  the  main 
features  of  the  plan  under  consideration,  or  any 
other  which  might,  be  adopted. 

It  had  been  objected  by  the  gentleman  from 
Rensselaer  (Mr.  VAN  SCHOONHOVEN)  that  under 
the  provisions  of  the  13th  section  it  was  to  be  ap- 
prehended that  courts  differently  organized  and 
having  diverse  forms  of  practice,  might  be  estab- 
lished in  various  localities — and  in  some  none — 
so  that  appellate  jurisdictio'n  from  the  justices' 
courts,  might  in  one  place  be  conferred  upon  one 
of  these  local  courts  and  in  others  ypon  the  su- 
preme court,  and  thus  produce  great  confusion 


808 


and  embarrassment.  He  would  suggest  to  that 
gentleman,  that  his  objection  might  be  obviated 
by  providing,  by  the  adoption  of  a  part  of  the  plan 
under  consideration,  or  otherwise,  a  uniform  ap- 
pellate jurisdiction  in  these  matters,  and  yet  pro- 
vide for  the  future  wants  of  cities,  &c.,  by  the 
passage  of  the  13th  section  as  reported. 

He  had  himself  been  very  reluctant  to  give  up 
county  courts  with  original  jurisdiction,  and  had 
until  quite  lately  entertained  the  hope  that  local 
courts  with  such  characters  and  jurisdiction  as  to 
secure  for  them  the  respect  and  confidence  of 
suitors,  would  be  established.  But  it  being  now 
evident  that  no  county  court,  with  original  juris- 
diction would  be  provided  by  this  Convention,  he 
cheerfully  acquiesced,  and  would  endeavor  to  aid 
in  perfecting  whatever  system  should  secure  the 
approval  of  a  majority  of  this  body.  He  believed 
the  proposition  of  Mr.  CROOKER  was  regarded 
with  most  favor  and  should  therefore  vote  for  it, 
if  upon  further  examination  he  found  it  to  con- 
tain nothing  more  objectionable  than  he  now  was 
aware  of. 

If,  however,  the  whole  matter  should  be  left 
to  the  legislature  under  the  13th  section,  he  did 
not  then  think  the  objection  of  the  gentleman 
from  "  Rensselaer  well  taken.  The  legislature 
\vould,  he  believed,  adopt  a  uniform  system  for 
the  State.  We  had  no  reason  to  suppose  that 
they  would  organize  a  court  not  proceeding  ac- 
cording to  the  course  of  the  common  law — unique 
in  its  structure,  jurisdiction  and  practice — but 
that  the  authority  to  organize  courts  of  limited 
jurisdiction  would  be  understood  to  contemplate 
the  creation  of  such  courts  as  were  known  to  the 
people,  the  Constitution  and  the  laws  of  the 
State,  such  as  accorded  with  existing  institutions. 
He  had  no  fear  that  the  legislature  would,  under 
this  section,  establish  a  Star  Chamber,  a  Pretori- 
am  or  an  Inquisition ;  but  would,  as  a  sensible 
representative  of  a  free  and  orderly  people,  pro- 
vide a  uniform  system  for  the  whole  State. 

;Ylr.  BRUNDAGE  was  in  favor  generally  of  the 
plan  ot  the  judiciaiy  committee  ;  but  he  was  op- 
posed  to  the  13th  section.  He  was  opposed  to 
these  local  courts;  and  would  have  but  one  kind 
of  court  to  try  alt  issues. 

Mr.  LOO  MIS  remarked  that  therejwas  one  lead- 
ing leatuieand  principle  running  through  the  plan 
of  the  judiciary  committee,  and  that  was  that  we 
should  have  only  one  single  court  that  should  do 
the  duty  and  have  the  jurisdiction  now  exercised 
originally  by  all  the  courts  of  record  in  this  state 
-•the  'Urt  of  chancery,  the  supreme  court,  and 
the  court  of  common  pleas.  He  had  undertaken 
to  employ  an  adequate  torce  to  do  all  this.  Mem- 
bers of  the  judiciary  committee,  in  making  their 
explanations  when  the  report  came  in,  apparently 
succeeded  in  convincing  this  body  thai  the  num- 
ber of  judges  and  the  organization  of  thar  tribunal 
would  be  sufficient — and  he  had  been  exceedingly 
gratified  to  see  the  perseverance  with  which  the 
Convention  had  resisted  all  temptations  to  depart 
from  that  principle.  To  establish  a  county  court 
having  original  civil  jurisdiction,  or  to  grant  to  the 
legislature  such  power,  would  be  an  entire  de- 
parture from  this  principle.  If  we  believed  that 
the  force  provided  here  was  not  sufficient,  then 
we  could  noT  be  excused  for  making  the  judges  so 
numerous.  He  had  not  changed  his  opinion  on 


this  subject;  and  he  asked,  if  under  the  demon- 
stratioa  made  by  the  gentleman  from  Clinton,  that 
there  were  but  227  causes  tried  by  the  common 
pleas,  originating  in  that  court,  the  last  year- 
making  four  to  each  county,  except  the  city  of 
New  York— whether  gentlemen  were  prepared, 
in  order  to  get  these  four  causes  in  each  county 
tried,  to  endanger  the  execution  of  the  system  we 
had  thus  far  projected  ?  With  four  circuits  a  year 
in  each  county,  under  this  system,  for  the  trial  of 
issues  of  fact  and  in  equity,  what  were  we  to  gain 
by  having  another  court  of  original  jurisdiction, 
with  all  its  machinery  and  expense  of  jurors  and 
witnesses,  &c. ,  under  the  name  of  a  county  court  ? 
He  conceded  the  necessity  for  some  local  officers 
to  discharge  special  and  local  duties,  such  as  su- 
preme court  commissioners  and  county  judges, 
and  perhaps  masters  and  examiners,  had  been 
charged  with .  But  they  need  not  be  charged  with 
any  duty  contemplated  in  this  report.  Fix  the 
duties  of  surrogate  and  those  he  had  enumerated, 
and  they  would  have  ample  employment,  and  the 
fees  paid  to  the  surrogate  would  pay  them.  He 
urged  the  Convention  to  adhere  to  the  principle  of 
this  plan,  and  not  to  confer  on  the  Legislature  the 
power  to  give  these  tribunals  original  civil  juris- 
diction. If  we  did  so,  he  feared  the  Legislature 
would  at  the  start  organize  such  courts — and  then 
we  should  have  thiity-two  judges  half  employed, 
half  paid,  and  of  course  not  half  qualified.  For 
one,  he  was  willing  to  conciliate  and  compromise 
differences,  but  he  could  not  give  up  the  leading 
principles  of  the  report — that  the  supreme  court 
was  intended  to  try  all  issues  of  fact. 

Mr.  W.  TAYLOR  wanted  to  get  a  vote  on  Mr. 
BRUCE'S  proposition ;  he  regarded  it  as  a  com- 
promise and  platform  where  the  friends  of  each 
plan  would  meet.  It  was  also  the  most  simple 
and  economical  plan. 

Mr.  CROOKER  said  it  did  not  differ  materially 
from  his  plan. 

Mr.  W.  TAYLOR:  Yes,  it  does,  in  regard  to 
ncorporated  villages. 

Mr.  BROWN  desired  to  strike  out  incorporated 
villages.  He  proceeded  to  vindicate  himself  and* 
the  committee,  from  the  strictures  made  upon 
both.  The  charges  of  inconsistency  and  fraud, 
he  could  not  receive  in  silence.  The  part  he  had 
taken  in  this  debate  was  not  his  own  seeking. 
The  gentleman  from  Ontario  (Mr.  WORDEN)  at 
an  early  stage  of  the  debate,  turned  his  back  upon 
this  report.  The  gentleman  from  New-York, 
(Mr.  O'CoNOR)  did  not  like  it,  and  had  said  little 
in  support  of  it.  The  gentleman  from  Seneca 
lad  been  incessant  in  his  attacks  upon  it.  The 
gentleman  from  Columbia  (Mr.  JORDAN)  had 
3een  called  away  by  professional  business — and 
the  chairman  (Mr.  RUGGLES)  had  been  struck 
down  by  sickness.  He,  therefore,  with  the  gen- 
tleman from  Herkimer,  (Mr.  LOOMIS)  had  stood 
almost  alone  in  defence  of  this  report.  As  to  his 
own  course,  he  denied  that  he  was  committed  on 
;he  mode  of  appointing  judges,  and  in  proposing 
:he  general  ticket  system,  advocated  opinions 
which  he  had  in  no  way  compromised.  And  in 
regarclto  this  thirteenth  section,  he  could  say  that 
le  assented  to  it  from  no  belief  that  the  force  pro- 
vided here  was  inadequate,  but  because  from  the 
ears  entertained  and  expressed  in  other  quarters 
that  it  was  not.  Mr.  B.  went  into  a  review  of 


809 


the  proceedings  and  course  of  debate  on  this  plan 
from  the  beginning — glancing  at  the  objection 
which  had  been  made  to  the  report,  particularly 
at.  what  had  been  said  of  this  "  army  of  judges" — 
insinuating  that,  from  the  statistics  before  us,  i 
any  thing  had  been  proved  here,  it  was  that  thii 
system  was  greatly  superior  to  the  present  ineffi 
cient  system,  and  much  cheaper.  Indeed,  j 
worse  system  could  scarcely  be  devised  than  th 
present.  All  that  the  committee  asked  for  this 
plan  was,  that  this  convention  would  provide  foi 
supplying  deficiencies  in  it,  if  in  the  progress  o 
time,  and  the  increase  of  population  and  business 
deficiencies  should  be  found  in  it.  And  undei 
either  of  the  plans  proposed  by  Messrs.  CROOK.' 
ER  and  BRUCE,  such  deficiencies  might  be  sup- 
plied, without  entailing  any  additional  expense 
upon  the  counties.  The  fees  of  the  surrogate 
would  be  ample  to  meet  all  its  requisitions.  In 
his  own  county,  and  in  the  adjoining  county  01 
Dutchess,  these  fees  amounted  in  the  aggregate  to 
some  $5,900  annually.  Either  of  these  two  pro- 
positions would  suit  him,  and  some  such  section 
we  should  adopt,  if  we  intended  to  give  full  effec 
and  a  fair  trial  to  this  system.  It  might  prove  to 
be  absolutely  essential  to  its  effective  working 
And  he  called  upon  the  gentleman  from  Kings, 
(Mr.  MURPHY)  if  he  had  really  enlisted  under  his 
banner,  to  follow  him  to  the  end  of  the  war  and 
not  to  stop  short  at  the  "  Palm  Ravine,"  as  if  all 
had  been  done,  that  was  yet  to  be  accomplished. 
He  insisted  that  the  legislature  should  be  empow- 
ered, as  a  matter  of  precaution — as  a  sort  of  safe- 
ty-valve to  this  system,  to  create  a  court  of  small 
original  jurisdiction. 

Mr.  PEUKINS  considered  that  Mr.  BROWJT  had 
maintained  his  consistency  as  well  as  any  of  them. 
Now,  he  was  satisfied  that  if  our  eight  circuit 
judges  were  relieved  from  chancery  powers  ;  they 
and  the  three  supreme  court  judges,  five  chancel- 
lors— making  sixteen  in  all,  would  do  up  all  the 
business  except  that  of  the  court  of  appeals.  But 
after  all  some  power  must  be  given  to  the  legisla- 
ture; adopt  what  provision  they  might  to  relieve 
the  system.  These  thirty.two  judges  could  not  do 
all  the  common  law,  and  equity  business,  masters' 
and  examiners'  work,  without  the  help  of  the  le- 
gislature to  establish  inferior  courts. 

Mr.  HOFFMAN  said  that  the  gentleman  from 
Orange  (Mr.  BROWN)  had  most  completely  vindi- 
cated himself  and  the  judiciary  committee ;  but 
at  the  same  time  a  vindication  of  either  was  unne- 
cessary. The  convention  was  told  by  the  judi- 
ciary committee  at  the  outset  that  they  did  not 
consider  this  system  perfect  by  any  means,  with- 
out the  aid  of  inferior  tribunals ;  this  13th  section 
was  intended  to  supply  that  requisite.  Neither 
did  members  here  seriously  believe  that  this  su- 
preme court  was  to  try  all  the  petty  assault  and 
battery  cases,  or  all  the  paltry  slander  suits 
that  are  now  tried  in  the  courts  of  common 
pleas.  The  legislature  must  have  power  giv- 
en them  to  establish  these  inferior  courts. 
Statistics,  it  is  true,  only  showed  227  causes  dis- 
posed of  in  the  county  courts  in  a  year  ;  yet  these 
227,  with  20,  30,  and  even  50  witnesses,  would 
constitute  themselves  quite  an  important  item  in 
the  business  of  these  courts.  He  had  conclusive- 
ly shown  that  the  expense  of  these  courts 
would  be  much  less  than  under  the  present  sys- 


tem ;  but  the  expense  he  regarded  as  a  seconda- 
ry consideration  when  compared  with  speedy  and 
sound  justice.  He  liked  the  plan  of  the  gentle- 
man from  Madison,  (Mr.  BRUCE,)  and  in  adopt- 
ing that,  for  the  sake  of  caution,  it  would  be  well 
to  have  a  power  somewhat  resembling  that  which 
the  13th  section  proposes  to  confer. 

Mr.  HOFFMAN  denied  that  from  the  expression 
of  the  committee  and  the  arguments  here,  it  was 
asserted  that  this  supreme  court  would  be  sufficient 
to  discharge  all  the  business  of  the  state.  It  was 
in  vain  to  hope  that  they  could  do  so.  They  could 
never  take  cognizance  of  the  petty  cases  of  slan- 
der and  assault  and  battery.  If  they  did,  it  would 
sink  the  court  to  the  level  of  the  repudiated  com- 
mon pleas.  It  was  for  these  reasons  he  was  in  fa- 
vor of  having  the  local  courts  vested  wilh  some 
original  jurisdiction  in  matters  ol  this  kind,  and 
of  having  the  Legislature  empowered  to  do  it. — 
He  preferred  the  plan  of  Mr.  BRUCE,  as  being 
more  flexible  to  the  wants  ot  the  public,  leaving 
it  to  the  Legislature  to  bring  it  forward  when  de- 
sired. In  relation  to  the  chamber  business,  those 
county  judges  would  be  required,  he  urged,  also, 
for  that  purpose.  In  regard  to  the  expense,  he 
urged,  that  even  with  the  addition  of  these  county 
courts,  the  proposed  system  would  be  far  more 
economical  than  the  present  one. 

Mr.  FORSYTH  said  that  no  one  mora  fully  sym- 
pathized with  the  unfortunate  situation  of  the  gen- 
tleman from  Orange,  and  the  judiciary  committee, 
but  he  could  not  admit  that  any  thing  that  had  oc- 
curred yet  would  relieve  the  gentleman  from 
Orange  from  the  inconsistency  of  his  position. — 
Mr.  F.  urged  that  the  effect  of  adopting  the  pro- 
position of  the  gentleman  from  Orange  this  morn- 
ing, would  be  to  defraud  those  who  had  voted  for 
the  great  supreme  court.  All  these  plans  for  coun- 
ty courts,  he  contended,  were  in  direct  interference 
with  the  plan  of  the  committee.  Mr.  Ft  went  on 
at  some  length  on  this  point.  He  was  originally 
opposed  to  all  courts  of  common  pleas,  and  voted 
with  the  judiciary  committee  on  their  proposition 
with  the  understanding  that  no  such  court  would 
:)e  needed.  Nor  did  he  believe  it  was  needed 
now,  but  as  a  compromise  he  yielded  to  the  adop- 
tion of  the  proposition  of  the  gentleman  from  Cat- 
taraugus  And  now  it  was  proposed  that  an  amend- 
ment  should  be  adopted,  which  changed  the  whole 
character  of  the  proposition.  He  differed  entirely 
rom  the  gentlemen  from  Orange  and  Herkimer, 
as  to  the  necessity  of  the  amendment,  to  prevent 
he  blocking  up  of  the  supreme  courts. 

Mr.  BERGEN  moved  the  previous  question  on 
he  amendments,  and  there  was  a  second,  and  the 
nain  question  ordered. 

The  question  was  first  taken  on  the  amendment 
>f  Mr.  BRUCE. 

Mr.  FORSYTH  asked  for  a  division  of  the  ques- 
ion,  so  as  to  vote  first  on  the  motion  to  recommit. 

The  CHAIR  decided  this  motion  not  to  be  in 
irder. 

The  question  being  taken  by  ayes  and  nays, 
here  were  ayes  26,  nays  79.  So  the  amendment 
.vas  rejected. 

Mr.  CROOKER  withdrew  his  amendment. 

The  question  was  then  on  the  resolution  of  Mr. 
JROWN  to  recommit,  with  instructions  to  amend, 
s  moved  this  morning,  and  it  was  negatived, 
yea  38,  nays  72. 

76 


810 


Mr,.  CAMBRELENG  asked  consent  to  move  to 
strike  out  the  words  "  incorporated  villages"  in 
the  proposition  as  it  stands. 

Mr.  PATTERSON  inquired  if  the  section  would 
still  be  open  to  amendment? 

The  PRESIDENT  replied  in  the  negative,  un- 
less by  unanimous  consent. 

Mr.  PATTERSON  said  unanimous  consent  could 
not  be  given  unless  another  change  was  made. — 
There  was  a  phiase  '*  in  special  cases"  which  was 
interpreted  differently  by  different  gentlemen — 
one  saying  the  legislature  under  it  could  not  give 
original  jurisdiction  to  these  courts,  while  another 
contended  that  it  could  be  given  to  any  extent. — 
He  must  have  words  that  at  least  we  could  under- 
stand. 

Mr.  TALLMADGE  said:  I  have  taken,  Mr. 
President,  very  little  part  in  the  debate  the  last 
two  days,  on  the  subject  of  a  county  court,  a  court 
of  common  pleas,  or  by  whatever  name  a  court  in 
every  county  in  the  state,  intermediate  between 
the  justices'  court  and  the  supreme  court,  may  be 
called.  The  Convention  being  now  about  to  take 
the  final  vote  on  the  thirteenth  section,  and,  as  it 
seems,  to  adopt  the  substitute  as  amended,  I  feel 
it  incumbent  on  me  to  submit  a  few  remarks  on 
this  very  interesting  subject. 

In  the  early  proceedings  of  this  Convention,  I 
avowed  myself  the  advocate  of  a  county  court,  or 
a  court  intermediate  between  the  justices  and  the 
supreme  court.  I  rise  now  to  re-assert  my  belief 
in  the  expediency  and  the  necessity  of  establish- 
ing such  a  tribunal.  I  have,  on  a  former  occa- 
sion, taken  part  in  the  debate  on  the  "  New  Judi- 
ciary System"  now  under  discussion,and  explained 
my  views  and  expressed  a  decided  opinion  against 
the  plan  proposed  by  the  committee,  which  is,  in 
substance,  to  abolish  the  county  courts,  and  to  es- 
tablish a  supreme  court,  with  thirty-six  judges, 
(and  the  right  to  increase  the  number,)  to  be 
charged  with  all  the  business  of  the  state,  in  law 
and  equity,  down  to  the  justices'  courts.  It 
never  will  work  well.  It  cannot  satisfy  the  pub- 
lic desire.  If  you  will  have  a  high  and  dignified 
court,  you  must  pay  for  it,  and  command  the  talent 
of  the  state,  and  assign  to  it  a  corresponding  order 
of  business.  But  if  you  require  it  to  descend  to 
the  justices'  court  in  the  details  of  small  county 
business,  it  must  and  will  sink  in  its  character  to 
a  corresponding  grade.  For  such  an  order  of  bu- 
siness the  public  will  not  bear  its  burthens,  and 
the  court  must  lose  its  character  of  elevation. 

But,  sir,  it  is  not  my  purpose  now  to  reargue 
this  important  question.  Enough  has  been  said. 
I  rose  only  to  explain  the  peculiar  predicament 
in  which,  in  common  with  other  friends,  I  find 
myself  placed  on  this  interesting  question.  From 
the  beginning  to  the  end,  we  have  been  the 
avowed  advocates  for  the  establishment  of  county 
courts,  with  appropriate  civil  and  criminal  juris- 
diction, and  yet  we  appear  as  voting  in  the  nega- 
tive, upon  almost  every  proposition  which  has 
been  submitted,  and  we  intend  now,  to  vote  in  the 
negative  on  this  final  question.  We  impute  no 
blame  to  others.  It  shall  be  called  honest  differ- 
ence of  opinion  among  the  friends  of  a  common 
measure.  It  is  our  pleasure  to  say  there  is  not  a 
visible  opponent  on  this  floor — not  a  voice  yet 
raised  against  the  establishment  of  county  courts. 
All  are  unanimous  in  an  evident  and  ardent  de- 


sire to  accomplish  this  common  object.  It  is  ac- 
cidental, and  the  merest  accident  in  the  world, 
that  there  is  such  an  honest  difference  of  opinion 
among  the  friends  of  this  measure  of  county  courts 
— that  they  cannot  agree  upon  any  thing.  We  all 
remember  a  portion  of  these  friends,  on  the  for- 
mation of  the  supreme  court,  would  have  thirty- 
six  judges — and  said  they  would  do  all  the  busi- 
ness of  the  state  above  the  justices'  court — and 
that  county  courts  were  not  needed.  The  other 
portion  of  those  friends  had  insisted  upon  only 
twelve  judges  of  the  supreme  court,  as  adequate 
to  the  business  of  the  state,  with  county  courts  to 
do  the  lesser  class  of  civil  and  criminal  business. 
Yet  now  we  are  all  happily  here  in  favor  of  county 
courts — all  united  in  one  effort  for  this  common 
object.  We  have  spent  the  last  three  days  in  bo* 
najicle  endeavors  to  fix  upon  the  details — every 
possible  variety  of  amendments  have  been  moved 
— one  to  cut  off  its  civil  jurisdiction — and  another 
to  limit  its  criminal  powers — a  third  to  restrict  its 
jurisdiction  to  special  cases  and  to  a  single  judger 
and  to  stay  its  going  into  operation  for  two  years 
— and  another  to  commit  its  fate,  and  its  pay,  and 
formation,  to  the  will  of  the  boards  of  supervisors , 
&c.,  &c  We  were  a  little  time  since  about  to 
have  taken  a  final  vote  upon  the  thirteenth  sec- 
tion, as  amended,  and  which  would  have  been  a- 
vailable  for  some  good — but  then  a  "  substitute" 
for  the  whole  section  was  moved  and  accepted. — 
The  clerk  had  not  breathed  after  reading  this  mo- 
del substitute  for  a  new  court,  when  instantly 
new  amendments  were  sent  in  from  five  persons, 
all  written  out — then  came  the  previous  question 
— to  stop  other  amendments — and  now  the  main 
question  is  to  be  put  upon  the  whole  as  amended. 
To  a  by-stander,  unskilled  in  legislation,  this 
might  "look  like  pre-concert  to  defeat  the  object 
in  view,  while  to  those  who  understand  the  mat- 
ter, it  looks  like  extra  zeal  to  accomplish  the  ob- 
ject of  county  .courts,  for  which  we  are  all  so 
unanimous.  We  have  already  taken  the  division 
of  the  house  about  a  dozen  times  on  amendments 
to  a  county  court,  while  we  cannot  get  a  question 
on  a  county  court  alone,  or  to  leave  it  to  the  leg- 
islature. It  must  be  coupled  with  rrTatter  to  se- 
cure its  defeat,  by  the  vote  of  its  friends. — 
"  Amendments  may  be  made  so  as  totally  to  alter 
the  nature  of  the  proposition ;  and  it  is  a  way  of 
getting  rid  of  a  proposition,  by  making  it  bear  a 
sense  different  from  what  was  intended  by  the 
movers  ;  so  that  they  vote  against  it  themselves." 
—2  Hats.  79  ;  Claris  Manual,  146. 

Our  case  is  much  like  the  one  of  a  fond  parent, 
who  had  long  desired  an  addition  to  his  house- 
hold;  and' when  at  length  the  little  blessing 
came,  and  by  which  the  inheritance  of  many  ex- 
pecting and  anxious  relations  was  cut  short,  yet 
all  assembled  to  join  in  the  family  joy,  and  lend 
their  willing  aid  to  amend  and  make  the  little  in- 
nocent more  perfect.  All  had  plans  for  its  im- 
provement. It  was  too  long  for  one,  and  he  moved 
to  shorten  it  a  foot — another  would  have  its  hand 
taken  off — a  third  would  clip  off  its  nose,  and  a 
fourth  put  out  its  eyes — a  fifth  and  a  sixth  dis- 
liked exceedingly  its  pallid  complexion,  and  the 
one  wished  to  give  it  the  small  pox — another 
thought  leprosy  would  be  far  better — while  one, 
yet  more  willing  to  be  useful,  moved  a  "  substi- 
tute," that  had  no  vitality,  or  power,  and  thus  he 


811 


i  better  promote  the  common  welfare.     To 

ill  agreed,  and  to   evince  greater   honor  to 

hope,  it  was  unanimously  named  after 

leader  of  great  renown,  called  KUT- 

FF! 

We  are  entangled,  Mr.  President,  in  a  net  of 
forms  and  bound  so  tight  by  rules  of  our  own 
making,  and  the  cords  of  our  own  tying,  that  we 
are  constantly  baffled  in  the  very  objects  in  which 
xve  are  all  agreed  ;  and  yet,  even  the  "responsi- 
ble majority"  of  this  house  cannot  relieve  us. — 
Kt-:u-s  are  entertained,  that  the  unlearned  and 
suspicious  public  will  not  appreciate  the  queer 
•dilemma  in  which  we  are  placed,  and  may  not 
only  doubt  the  fairness  of  our  motives,  but  may 
even  accuse  some  of  the  younger  members  as  in- 
tending, by  adopting  the  thirty-six  judge  sys- 
tem, to  provide  good  places  for  ourselves. — 
The  only  possible  remedy  which  I  can  suggest  a- 
gainst  these  impending  evils,  is,  that  we  add  a 
clause  to  this  constitution,  declaring  any  member 
ot  this  convention  to  be  ineligible  to  take  office 
under  this  constitution  for  the  term  of  three  years 
from  its  adoption. 

We  have  heard  described  in  this  discussion,  in 
glowing  colors,  the  fall  and  the  degraded  condi- 
tion of  "the  present  county  courts  as  a  reason  why 
we  must  not  amend  and  re-establish   the  county 
courts.      Some    have   even   described  particular 
cases,  and- stated  one  in  which  a  presiding  judge 
the    judgment  of    the   court,   whilst   the 
other  two  judges  protested  in   violence   and  lan- 
iruage  which  my  friend  near  me  (Mr.  DANA)  has 
:ed  to,  ns  too  profane  and  indecent  to  be  ad- 
mitte.;  even  in  a  recital.     Several  gentleman  near 
me,  say  tuey  know  all  the  particulars  of  the  case, 
'that  the 'disorder  did  not  arise  from  the  judges — 
that  it  all  came   from   Justice  Alchohol !  which 
had  been  infused  too  freely  into  the  court.     We 
now  give  the  right  of  election  to  the  county  ; 
such  cases  will  hereafter  depend  upon  the  choice 
of  the  county.     I  remember  with  satisfaction  the 
old  county  court  of  Dutchess  county,  in  which  it 
was  my  pride  once  to  practice — a  Brooks,  a  John- 
ston, an  Emott,  and  a  Pendleton,  were  in  succes- 
sion the  presiding  judges,  with  associates  worthy 
of  such  principals — all  gentlemen  of  intelligence 
and  integrity — and  for  many  years  held  an  elevat- 
ed county  court.     Other  counties  may  look  back 
with   the   same  proud  result.      In   those   days 
those  judges  served  for  the   distinction   and  the 
honor,  and  they  were  well  paid.     In  latter  times 
it  has  been  discovered,  to   use   a  word  I  have 
learned   on    this  floor,  to  be  "undemocratic"  to 
hitve  an  office  without  pay,  and  which   thereby 
the  poor  man  cannot  afford  to  hold.     The  legis 
lature  have  provided  two  dollars  a  day,  and  havi 
opened  the  road  of  this  profit  and  promotion  t< 
the  village  justice  and  the  bar-room  politician. — 
The  result,  the   character   and   condition  of  tin 
court,  are  before  us.     The  county  court  require 
only  to  be  repaired,  and   made   efficient  for  the 
medium  business  of  the  state,   and  then  twelve 
judges  for  the  supreme  court   would  only  be  re 
quired,  or  could  find  business   for   their  employ 
inrtit.     It  is  certain  the  thirty-six  judges  and  th< 
county  courts  cannot  exist  together.     If  the  for 
mer  is  adopted,  it  must  end   in    multiplied  com 
missioners  and  a  swarm  of  petty  officers  to  do  th< 
local  business.     Since  the  adoption  of  the  systen 


or  the  supreme  court,  with  its  thirty-six  judges, 
t  seems  a  difficult  matter  to  get  a  hearing  for  the 
,ounty  court,  and  every  effort  to  present  the  ques- 
ion  of  a  county  court  has  been  amended  to  its 
it'er  ruin. 

Gentlemen  express  surprise  that  in  a  measure 
AThere  there  is  no  opposition,  and  to  which  all  are 
greed,  every  effort  to  advance  is  constantly 
iefeated  by  amendments,  to  make  the  thing  more 
)erfect — until  there  is  not  a  friend  left  for  it. — 
Some  have  said  they  are  lost  in  the  labyrinth  of 
•ules,  and  questions  of  legislative  usages  ;  and 
hat  such  a  case  of  confusion  never  before  exist- 
3d.  Will  those  gentlemen  ,allow  me  to  differ 
rom  them,  and  state  that  a  like  case  existed,  in 
all  its  features, in  the  legislature  of  1824  ?  It  was 
my  lot  to  have  been  a  member  of  that  body. — 
The  memorable  question  of  the  electoral  law, 
proposing  to  give  the  choice  of  the  electors  to 
;he  people,  came  before  that  legislature.  That 
.egislature,  like  this  Convention,  had  no  ulterior 
jarty  politics  in  it.  All  were  agreed  in  the  pro- 
position ;  but  each  one  wished  to  render  it  more 
perfect  by  some  slight  amendment.  All  was 
confusion,  from  the  collisions  of  these  honest  ef- 
brts.  The  session  thus  passed  away.  An  extra 
session  was  called  by  the  Executive  ;  and  that  too 
jassed  off  and  no  electoral  law.  The  confusion 
of  amendments,  rules,  orders,  committees  and  ref- 
erences, was  such  that  the  honestest  members  of 
the  house  could  not  tell  how,why  or  when  the  elec- 
oral  law  was  lost.  But  lo  and  behold,  the  people 
understood  it  !  and  there  was  a  day  of  ample  ret- 
ribution. This  created  "the  immortal  seventeen!" 
Will  not  the  friends  of  this  system  of  thirty-six 
udges,  and  the  necessary  clerkships,  subaltern 
officers,  and  commissioners  for  local  business — 
Jake  warning  and  learn  a  lesson  of  wisdom  from 
the  past  ?  Thirty-six  judges,  with  expected  sal- 
aries of  $3000  each,  and  $500  for  travelling  ex- 
penses, with  the  consequent  retinue  of  needy  de- 
pendents, will  be  one  very  rank  slice  of  party 
patronage.  May  it  not  be  mistaken  for  a  compa- 
ny of  California  volunteers?  I  hope  it  may  be 
submitted  to  the  people  at  the  next  election  as  a 
separate  article.  I  fear  the  people  will  not  take 
it  off  our  hands,  and  that  the  vastness  of  the 
scheme  will  have  defeated  its  own  consumma- 
tion. True  we  have  provided  for  the  election  of 
the  judges  by  the  people  ;  but  will  this  be  satis- 
factory ?  At  the  beginning  of  this  Convention, 
we  were  told  that  the  elections  must  all  be  bro't 
home  to  the  people.  The  old  senate  districts 
were  too  large — and  the  counties  have  been  cut  up 
into  single  assembly  districts,  that  the  electors 
may  know  the  particular  candidate.  Yet  when 
we  come  to  the  election  of  the  judges,  the  thirty- 
two  single  senate  districts  are  too  small  for  thirty- 
two  judges.  They  must  have  a  judicial  district 
provided  ;  embracing  several  large  and  distant 
counties — with  an  election  of  four  judges  at  one 
time — and  to  elect  only  once  in  four  years — will 
this  redeem  our  pledge  for  single  districts  and  to 
bring  the  elections  home  to  the  people  ? 

Mr.  LOOMIS  moved  to  recommit  to  a  commit- 
tee of  one,  with  instructions  to  strike  out  the 
words*  "incorporated  villages,"  and  report  forth- 
with. 

Mr.  PERKINS  moved  to  adjourn.  ^  Lost. 


812 


Mr.  STETSON  moved  the  previous  question, 
and  the  motion  of  Mr.  LOOMIS  was  agreed  (o. 

Mr.  LOOMIS,  who  was  appointed  said  commit 
tee,  immediately  reported. 

The  13th  section  as  amended  (heretofore  given) 
was  then  carried,  as  follows: — 

AYES— Messrs.  Angel,  Archer,  Baker,  Bowdish,  Bray- 
ton,  Burr,  Cambreleng,  (Jonely,  Cook,  Crooker,  Donon, 
Flanders,  Forsyth,  Graham,  Harris,  Hait,  Hawley,  Hoff- 
man, Hotchkiss,  A.  Huntington,  Hyde,  Kingsley.  Mann, 
McNeil,'  Maxwell,  Morris,  Towers,  President,  Rhoades, 
Sears,  Shaver,  Shaw,  Sheldon,  Stetson,  Taggart,  W.  Tay- 
lor, Townsend,  Waterbury,  Wood.  Youngs— 40. 

NOES — Messrs.  Ayrault,  F.  F.  Backus,  Bouck,  Brown, 
Bull,  Cornell,  Cuddeback,  Dana,  Dubois,  Green,  E.Hun- 
tington,  Hutchinson,  O'Conor,  Parish,  Patterson,  Penni- 
man,  Perkins,  Porter,  Richmond,  Riker,  Russell,  St.  John, 
Salisbury,  Sanford,  Simmons,  W.  H.  spencer,  stow, 
Swackhamer,  Taft,  Tallmadge,  J.  J.  Taylor,  Tuthill, 
Ward,  White,  Willard,  Worden,  A.  Wright,  Yawgt-r, 
Young— 39. 

Mr.  AYRAULT  moved  to  reconsider. 
Mr.  SHEPARD  had  leave  of  absence  for  4  days. 
The  Convention  then  adjourned  to  half  past  8 
o'clock  to-morrow  morning. 

SATURDAY,  (Slst  day)  Sept.  5. 

Prayer  by  Rev.  Mr.  SCHNELLER. 

Returns  from  the  clerk  of  the  8th  chancery  cir- 
cuit were  received  and  referred. 
THE  JUDICIARY. 

Mr.  LOOMIS'  propositions  to  do  up  unfinished 
business  of  the  courts  then  came  up  thus.  He 
said  they  were  necessary,  in  order  to  perfect  the 
judiciary  system,  and  he  moved  to  refer  them  to 
select  committee,  with  instructions  for  the  com- 
mittee to  report  them  back  to  the  Convention  in 
ooe  hour : 

At  the  time  when  this  constitution  shall  take  effect,  all 
suits  and  proceedings  then  pending  in  the  court  for  the 
correction  of  errors,  shall  be  deemed  pending  in  the  court 
of  appeals;  and  all  suits  and  proceedings  then  pending  in 
the  court  of  chancery,  in  the  supreme  court,  and  in  the 
court  of  common  pleas,  shall  be  deemed  pending  in  the  su- 
preme court  hereby  established. 

The  chancellor  and  justices  of  the  supreme  court  shall 
continue  to  have  and  exercise  the  powers,  duties  and  com- 
pensation of  their  respective  offices  in  respect  to  all  causes 
and  proceedings  in  their  respective  courts  when  this  con- 
stitution shall  take  effect,  and  then  ready  for  htaiing  be- 
fore them  respectively,  until  said  causes  and  proceedings 
have  been  adjudicated  and  finally  disposed  of  in  said 
courts;  bat  such  time  shall  not  in  respect  to  the  courts  of 
chancery  exceed  two  years,  and  in  respect  to  the  justices 
of  the  supreme  court  one  year  from  the  time  this  constitu- 
1ion  takes  eflect. 

Any  causes  or  proceedings  pending  in  the  court  of  chan- 
cery and  in  the  supreme  court  and  ready  for  hearing  before 
the  chancellor  or  before  the  justices  of  the  supreme  court 
may,  notwithstanding  the  last  section,  be  heard  and  deter- 
mined in  the  supreme  court  by  the  consent  of  parties;  and 
all  causes  and  proceedings  pending  in  the  court  of  chance- 
ry or  in  the  supreme  court,  when  this  constitution  shall 
take  effect,  shall  be  subject  to  the  appellate  jurisdiction  of 
the  court  of  appeals  in  like  manner  as  if  originally  com- 
menced in  the  supreme  court  by  this  constitution  ordained. 

The  chancellor,  vice  chancellors  and  assistant  vice  chan- 
cellors, th«  justices  of  the  supreme  court  and  circuit  judges 
are  hereby  declared  to  be  severally  eligible  to  the  office  of 
judge  of  the  court  of  appeals,  or  justice  of  the  supreme 
court  within  the  districts  in  which  they  may  reside. 

Any  vacancy  in  the  office  of  chancellor  within  two  years 
from  the  time  this  constitution  shall  take  effect,  or  in  the 
office  of  justice  of  the  supreme  court  within  one  year  from 
the  time  this  constitution  shall  take  effect,  shall  be  filled 
by  appointment  by  the  Governor  with  the  advice  and  con- 
sent of  the  Senate. 

Mr.  SIMMONS  said  that  he  had  been  told  by 
the  chancellor  that  he  could  do  the  business  of  his 
court  up  in  90  days  at  the  iurthest ;  and  he  would 


not  then  have  more  than  he  received  from  Chan- 
cellor Jones. 

Mr.  LOOMIS  said  there  were  over  1000  causes 
on  the  calendar. 

Mr.  SIMMONS  said  he  never  would  vote  for  any 
extraordinary  commissioner  to  settle  up  this  bu- 
siness. The  thirty-six  judges  could  do  it  all. 

Mr.  RICHMOND  said  that  if  they  were  going 
on  increasing  this  army  of  judges  and  now  pro- 
posing sixteen  or  twenty  more,  they  had  better 
send  runners  out  to  New  England — tell  them  to 
get  ready — for  we  have  not  enough  here  in  this 
state.  We  should  have  two  systems  going  on  in 
full  blast — one  deciding  one  way,  and  the  other, 
the  other  way.  This  was  too  monstrous  for  the 
people  to  swallow. 

Mr.  SIMMONS  said  they  ought  to  consult  the 
present  judges. 

Mr.  STOW  moved  a  change  of  reference. 

Mr.  TOWNSEND:  We  want  to  hear  the 
thing  read. 

Mr.  BROWN  :  There  is  nothing  to  be  read, 
sir ;  there  is  nothing  there. 

Mr.  TOWNSEND  :  Very  well,  then  I  raise  a 
question  of  order. 

Mr.  LOOMIS  presented  his"  proposition.  Ques- 
tion on  referring  them  to  a  select  commitee  of 
three. 

Mr.  STOW  did  not  want  a  matter  so  important 
as  this  hurried  over  in  an  hour.  He  wished  it  re- 
ferred to  the  judiciary  committee. 

Mr.  LOOMIS  agreed  to  this  motion. 

Mr.  BROWN  said  that  it  could  be  settled  in 
two  minutes.  Transfer  the  unfinished  business 
to  the  new  courts  and  then  decide  whether  we 
are  to  have  a  commission  or  not ;  it  could  be  done 
in  half  an  hrfur.  They  could  not  get  the  judiciary 
committee  together  at  the  present  term. 

Mr.  RHOADES  thought  it  .ought  to  go  to  the 
judiciary  committee. 

Mr.  WATERBURY  said  they  ought  to  go  on 
in  righteousness  and  finish  the  one  thing  needful 
first. 

Mr.  HAWLEY  moved  to  lay  it  on  the  table- 
Lost. 

Mr,  NICHOLAS  thought  it  ought  to  go  to  the 
judiciary  committee. 

Mr.  CHATFIELD  did  not. 

Mr.  STOW  moved  to  refer  the  whole  subject 
matter  to  the  judiciary  committee. 

Mr.  SWACKHAMER  moved  to  refer  them  to 
the  committee  of  the  whole.  Lost. 

The  question  was  then  on  sending  these  propo- 
sitions to  the  judiciary  committee. 

Mr  STOW—"  And  the  subject  matter  *of 
them." 

The  PRESIDENT— That  carries  the  whole 
subject  along  with  it — the  report  and  all. 

They  were  finally  referred  to  the  judiciary 
committee — ayes  44,  noes  23. 

Mr.  BASCOM  offered  this  resolution  : 

The  Governor  may  require  the  judges  of  the  supreme 
court  to  perform  duties  without  the  judicial  districts  to 
which  they  belong,  and  a  sum  equal  to  their  travelling  ex- 
penses, besides  their  salaries,  may  be  allowed  the  judges 
while  on  such  service. 

He  moved  to  refer  it  to  the  judiciary  committee. 
This  was  lost,  33  to  40 ;  and  it  was  laid  on  the 
table. 
The  PRESIDENT  announced  the  question  to 


813 


be  on  the  10th  section  of  the  judiciary  report  as 
amended  by  the  select  committee  : 

§10.  Surrogates  shall  he  elected  for  four  years.  They 
shall  be  compensated  by  fixed  salaries,  and  they  shall  noi 
receive  to  their  own  use  any  lees  or  perquisites  of  office 
The  surrogate  may  be  made  a  judge  of  any  inferior  court 
which  may  be  established  in  any  county. 

Mr.  CROOKER  moved  to  strike  out  the  whole 
section. 

Mr.  HARRIS  moved  as  a, substitute : 

§  14.  The  preceding  section  shall  not  be  construed  to 
authorize  the  legislature  to  confer  upon  any  county  courts 
original  jurisdiction  in  actions  at  law. 

The  10th  section  was  then  struck  out. 

Mr.  HARRIS  offered  his  as  a  new  section. 

Mr.  RUSSELL  opposed  it.  It  would  tie  up 
the  whole  judicial  system  ;  and  if  you  wanted  to 
get  the  whole  system  rejected,  then  pass  the 
whole  section. 

Mr.  HARRIS'  proposition  was  declared  out  of 
order. 

Mr.  O'CONOR  offered  this   additional   section  : 

§ — .  The  judgment,  decrees  and  decision  of  inferior  lo- 
cal courts  in  cities  shall  be  subject  to  review  in  the  su- 
preme court  or  court  of  appeals,  as  may  be  prescribed  by 
law. 

The  rest  of  the  report  of  the  select  committee 
was  read  ;  it  related  to  courts  of  conciliation.  Mr. 
O'CONOR'S  section  was  out  of  order. 

Mr.  PATTERSON  moved  to  strike  out  the  two 
sections  and  insert — "Courts  of  conciliation  may 
be  organized  by  the  Legislature." 

Mr.  TAYLOR  said  Mr.  PATTERSON'S  resolution 
was  too  broad — better  stick  to  the  proposition  of 
the  select  committee. 

Mr.  WATEIU;URY  was  astonished  at  the  mov- 
er— he  was  a^toni3hed  at  his  motive,  and  more, 
te  was  astonished  at  his  sincerity.  We  have  got 
a  court  to  travel  all  over  God's  creation.  He  was 
thunderstruck. 

'    Mr.  YOUNG   moved    to  add— "  And   without 
cost  to  parties,"  to  Mr.  PATTERSON'S  amendment. 

Mr.  HUNT  moved  to  strike  out  the"  words  *'  they 
shall  be  paid  a  reasonable  compensation  to  be  fixed 
by  law,  and  all  foes  received  by  them  shall  be  paid 
into  the  county  treasury,"  which  being  part  of  the 
select  committee's  report,  took  precedence  of  the 
other  motions, 

Mr.  HUNT  wished  these  courts  to  be  supported 
by  fees  from  the  parties  they  succeed  in  remedy- 
ing. 

Mr.  CHATFIELD  said  it  was  farcical  to  talk 
about  compelling  men  to  go  to  courts  of  concilia- 
tion, and  if  it  is  a  voluntary  thing  then  its  no  bet- 
ter than  our  present  courts  of  arbitration. 

Mr.  SWACKHAMER  said  that  these  were  the 
Greeks,  the  Huns,  the  sharks  and  the  Shylocks 
that  prey  on  the  people,  who  oppose  these  courts. 
He  also  said  that  Mr.  CHATFIELD  was  god-father 
to  Mr.  PATTERSON'S  plan. 

Mr.  WATERBURY :  We  shall  never  do  any- 
thing  whatever  if  we  go  on  in  this  way. 

Mr.  DANA  said  the  people  would  say  to  us 
"physicians  heal  thyself,"— calling  each  other 
««  shark,"  "  Shylock,"  "  Greek"  and  "  Turk,"  does 
not  become  those  sent  to  revise  the  Constitution. 

Mr.  LOOMIS  agreed  with  him. 

Mr.  SIMMONS  opposed  the  proposition  as  be- 
ing impracticable,  and  impossible  to  be  carried  in- 
to effect. 

Mr.  CHATFIELD  was  not  opposed  to  the  pro- 
position of  the  gentleman  from  Chautauque.  He 


did  not  believe  such  a  provision  necessary,  but 
there  were  those  who  did,  and  he  was  disposed  to 
gratify  them.  Mr.  C.  urged  that  the  county  courts 
could  never  be  carried  into  successful  operation; 

Mr.  YOUNGS  asked  for  the  previous  question, 
and  there  was  a  second,  and  the  main  question  or- 
dered. 

The  yeas  and  nays  were  then  called  for  on  the 
motion  of  Mr.  HUNT,  renewed  by  Mr.  HART, 
and  it  was  adopted,  yeas  69,  noes  20. 

The  next  question  was  on  the  motion  of  Mr. 
YOUNGS,  to  add  '«  without  cost  to  parties."  Lost, 
33  to  47. 

The  question  was  then  laken  on  Mr.  PATTER- 
SON'S amendment,  and  it  was  rejected — ayes  29, 
navs  58. 

The  question  now  recurred  on  the  first  section 
as  amended. 

Mr.  MORRIS  inquired  what  had  become  of  his 
amendment,  which  was  in  these  words — "  Such 
tribunals  shall  be  governed  by  the  law  of  the  land 
and  the  evidence  in  the  case."  He  handed  it  up 
to  come  in  when  in  order. 

A  conversation  ensued  on  the  propriety  of  en- 
tertaining it  at  this  time,  and  Mr.  MORRIS  inti- 
mated that  he  would  offer  it  hereafter.  It  was 
therefore  withdrawn. 

The  ayes  and  noes  were  then  taken  on  the  sec . 
tion  authorizing  conciliation  courts,  and  there 
were  ayes  42,  noes  43,  as  follows : 

AYES— Messrs.  Allen,  Angel,  Archer,  Bascom,  Burr« 
Cambreleng,  R.  Campbell  jr.,  Conely,  Cornell,  Dubois« 
Flanders,  Greene,  Harris,  Hart,  Hoffman,  Hunt,  Kemble* 
Kernan,  Kingsley,  Miller,  Morris,  Nellis,  Nicholas,  Pen" 
niman,  Rhoades,  Richmond,  Salisbury,  Sears,  Shaw,  She!" 
don,  Stephens,  Swackhamer,  Taggart,  Tallmadge.W.  Tay- 
lor, Townsend.  Warren, Waterbury,  White, Worden,  Yaw 
ger,  Young — 42. 

NOES— Messrs.  Ayrault,  F.  F  Backus,  Bouck,  Brayton, 
Brown,  Bull,  Chatfield.  Clark,  Cook,  Crocker,  Cuddeback, 
Dana,  Dorlon,  Gardner,  Hawley,  Hotchkiss,  Hunter,  Hut- 
chinson,  Hyde,  Loomis,  McNeil,  Munro,  O'Conor,  Parish, 
Patterson;  Porter,  Powers,  President,  Riker,  Russell,  St. 
John,  Sanford,  Shepard,  Simmons,  W.  H.  Spencer,  Stetson, 
Strong,  Ward,  Witbeck,  Wood,  A.  Wright,  W.  B.  Wright, 
Youngs — 43. 

Mr.  Miller  gave  notice  of  a  motion  to  reconsi- 
der, to  lie  on  the  table. 

The  sixteenth  section  was  then  read,  as  fol- 
lows : 

The  court  for  the  trial  of  impeachments  and  the  correc- 
ion  of  errors  ;  the  court  of  chancery  ;  the  supreme  court, 
and  the  county  courts,  as  at  present  organized,  are  abo- 
lished." 

Mr.  O'CONOR  opposed  the  section  as  by  no 
means  necessary,  and  as  imprudent.  He  thought 
there  was  no  necessity  of  using  this  term — abo- 
lished in  any  parf;  of  this  constitution.  Every 
;hing  in  the  old  constitution  that  conflicted  with 
this  work  of  revision  would  of  course  be  swept 
away. 

Mr.  J.  J.  TAYLOR  suggested  that  this  section 
was  referred  already  to  the  judiciary  committee, 
or  if  riot  it  should  be. 

Mr.  O'CONOR  made  a  motion  to  that  effect, 
and  it  was  adopted. 

The  fourteenth  section  was  then  read,  as  fol- 
.ows : 

{)  14.  The  legislature  may  reorganize  the  judicial  dis" 
ricts  at  the  lirst  session  after  the  return  of  every  enumer" 
ition  under  this  constitution  in  the  manner  provided  for  in 
ection  four,  and  at  no  other  time  ;  and  they  may  at  such 
;ession  increase  or  diminish  the  number  ol  districts,  but 
iuch  increase  or  diminution  shall  not  be  more  than  one 
district  at  any  one  time.  Each  district  shall  have  four  jus- 


814 


ticss  of  the  supreme  court,  but  no  diminution  oi  the  dis- 
tricts shall  have  the  effect  to  remove  a  judge  from  office 

The  section  was  adopted  without  a  division. 

Mr.  SWACKHAMER  offered  an  additional 
section,  that  there  should  be  but  one  appeal  in  ci- 
vil causes,  unless  the  judgment  of  the  court  ap- 
pealed from  be  reversed,  in  which  case  an  a  di- 
tional  appeal  may  be  allowed. 

Mr.  O'CONOR  opposed  the  section,  as  did  Mr. 
BROWN. 

Mr.  STRONG  supported  it,  as  did  Mr.  TALL- 
MADGE. 

The  debate  was  continued  by  Messrs.  CROOK- 
ER,  LOOMIS,  BASCOM,  when 

Mr.  TAGGART  offered  the  following  as  a  sub- 
stitute for  the  amendment  of  Mr.  SWACKHA- 
MER. 

"There  shall  be  no  appeal  from  justices'  courts,  but 
causes  may  be  removed  oy  certiorari  from  such  courts 
after  judgment  therein,  to  the  county  court.  The  court  to 
which  such  cause  shall  be  removed,  shall  receive  the 
'proceedings  and  decision  of  the  justice,  and  render  such 
judgment  as  ougiit  to  have  been  rendered  beiore  the  jus- 
tice. S.ut  ifbyieasonof  the  exclusion  oi  evidence,  or 
inability  to  procure  the  evidence  beiore  the  justice,  a  new 
trial  ought  to  be  granted,  such  court  shall  order  a  ue\v 
trial  beiore  the  county  court,  or  betore  a  justice,  and  in 
such  manner  as  shall  be  provided  by  law." 

Mr.  T.  briefly  explained  and  urged  the  adop- 
tion of  his  proposition. 

Messrs.  CROOKER,  LOOMIS  and.  HOFFMAN 
continued  the  debate,  when 

The  convention  adjourned  until  Monday. 

MONDAY,  (82nd  day)  Sept.  7. 
Prayer  by  the  Rev.  Mr.  SCHNELLER. 

Mr.  O'CONOR  presented  the  following,  for  the 
purpose  of  accomplishing  the  object  named  by 
Mr.  LOOMIS,  <>n  Saturday,  relative  to  disposing  of 
the  business  lhat  would  be  left  unfinished  in  the 
courts,  when  the  new  judiciary  s^siem  should  go 
into  operation : 

-  §  1.  That  part  of  this  constitution  which  relates  to  the 
supreme  court  shall  not  take  eflect  until  the  first  day  of 
June,  1848,  excepting  so  much  thereof  as  directs  the 
election  of  justices  of  the  said  court;  and  the  first  election 
of  the  said  justices  and  of  the  judges  of  the  court  oi  ap- 
peals, shall  be  had  on  the  first  Tuesday  of  May,  1847. 

§  2.  The  legislature  shall  at  its  first  session  in  1S47  pro- 
vide for  organizing  the  court  of  appeals  established  by  this 
constitution  and  for  transferring  to  it  tne  business  pending 
in  the  present  court  ior  the  correction  of  errors,  and  for 
bringing  to  the  said  court,  appeals  and  writs  of  error 
from  the  decrees  and  judgments  of  the  present  court  ol 
chancery  and  the  present  supreme  court,  as  well  as  from 
the  judgment  and  decrees  of  the  courts  that  may  be  orga- 
nized under  the  provisions  of  this  constitution. 

§  3.  The  legislature  shall  at  the  same  session  make  pro- 
vision lor  assigning  so  many  of  the  justices  of  the  supreme 
court,  elected  as  aforesaid,  who  are  not  designated  to  be 
members  of  the  court  of  appeals,  as  may  be  necessary  to 
the  duty  of  hearing  and  deciding  all  causes  and  matters 
pending  in  the  present  court  of  chancery  and  in  the  pre- 
sent supreme  court  which  shall  not  have  been  argued  be- 
fore the  chancellor  or  before  the  justices  of  the  present  su- 
preme court  previous  to  the  first  day  of  day  of  June,  1847; 
and  for  that  purpose  such  of  the  said  justices  as  shall  be 
assigned  to  hear  and  determine  causes  and  matters  pend- 
ing in  the  court  of  chancery,  and  the  justices  so  assigned 
to  hear  and  determine  causes  and  matters  so  pending  in  the 
supreme  court,  shall  possess  all  the  powers  and  authority 
and  be  subject  to  the  restrictions  and  regulations  conferred 
and  imposed  by  law  upon  the  present  court  of  chancery 
and  upon  the  present  supreme  court,  and  shall  hold  terms 
of  the  said  courts  at  such  times  and  places  as  shall  be  pre- 
scribed by  law.  Clerks  of  the  said  courts  and  the  necessa- 
ry officers  to  attend  their  terms  and  sittings  shall  be  pro 
vided  in  such  manner  as  the  legislature  shall  direct. 
^  4.  The  remaining  justices  of  the,  supreme  court  to  be 


elected  as  herein  provided,  not  designated  as  members  '•( 
the  court  of  appeals,  and  not  assigned  to  the  hearing  and 
determining  of  causes  pending  as  aforesaid,  in  the  court  of 
chancery  and  the  supreme  court,  shall  hold  circuit  courts 
and  courts  of  oyer  and  terminer,  and  shall  perform  sucE 
other  judicial  duties  as  shall  be  prescribed  by  law. 

§5.  The  present  supreme  court  and  the  court  of  chance- 
ry shall  continue  under  their  existing  organization  and 
with  the  powers  and  authority  now  vested  in  them,  until 
the  first  of  June,  1848,  lor  the  purpose  ol  deciding  such  cau- 
ses and  matters  as  may  have  been  argued  before  them  re 
spectively,  previous  to  the  1st  ol  June,  1847  and  for  the  pur- 
pose of  heaiing  and  deciding  any  causes  or  matters  that 
may  be  brought  before  them  according  to  law,  excepting 
such  as  shall  be  pending  and  not  argued  on  the  first  of  June 
1S47,  and  the  hearing  and  determination  of  which  are  here- 
in before  provided  for.  In  case  any  vacancy  should  occur 
in  the  office  of  chancellor  or  of  a  justice  ol  the  present  su- 
preme cuurt  the  duties  of  the  office  so  vacant  shall  be  per- 
formed until  first  of  June,  1848,  by  such  justice  of  the  su- 
preme court  hereafter  elected,  as  shall  be  designated  for 
that  purpose  by  the  Governor. 

<j  6.  The  office  of  circuit  judge,  of  the  vice-chancellors 
and  theassistantvice  chancellor  shall  expire  and  be  abolish- 
ed on  first  of  June,  1847  ;  and  ail  causes  and  business  then 
pending  undetermined  before  the  vice-chancellors,  before 
the  circuit  judges  as  vice-chancellors,  and  beiore  the  as- 
sistant vice-chancellor  shall  be  transferred  to  the  courts  or- 
ganized by  the  legislature  under  the  provisions  of  this 
constitution,  or  to  any  of  the  justices  of  the  supreme  court 
to  be  elected  hereafter,  as  may  be  directed  by  law. 

$7.  After  the  first  ol  June,  1848,  the  causes  and  business 
which  may  then  be  pending  undetermined  in  the  present 
court  of  chancery ,  in  the  present  supreme  coui  t,  and  in  the 
courts  organized  under  the  3d  section  of  this  article,  shall 
be  transferred  to,  and  determined  by,  the  courts  perma- 
nently constituted  under  the  provisions  of  this  constitution. 

These  were  referred  to  the  Judiciary  committee, 
and  ordered  to  be  printed. 

The  Convention  then  took  up  the  unfinished 
part  of  the  report  of  the  judiciary. 

Mr.  TAGGART  called  up  Ins  amendment  to 
the  proposition  which  Mr.  SWACKHAMER  offer- 
ed  on  Saturday. 

Mr.  HOFFMAN  said  that  thjft.  subject  was  a 
mere  matter  ot  legislation  He  desired  that  the 
Convention  should  not  restrict  the  Legislature  in 
this  respect;  for  it  would  not  be  8afe  to  restrict 
them  in  the  means  which  they  might  deem  neces- 
sary to  secure  a  safe  and  pure  administration  of 
justice. 

Mr.  TAGGART  said  that  it  would  not  unwise- 
ly restrict  the  Legislature. 

Mr.  HUNT  offered  as  an  amendment  to  that  of 
Mr.  TAGGART'S,  the  following: 

Add — "  When  the  decision  upon  any  appeal  or  review 
shall  confirm  the  original  decision,  all  costs  occasioned  by 
any  further  appeal  shall  be  paid  by  ths  appellant." 

Mr.  HUNT  went  on  to  say  that  it  was  said  here 
on  Saturday,  by  some  of  the  ablest  lawyers  among 
us,  that  the  sections  of  the  article  on  the  judiciary 
already  adopted,  cooler  upon  litigants  an  almost 
unlimited  right  ot  appeal — that  we  have  already 
authorized  any  man  who  is  dissatisfied  with  the 
decision  in  a  justices'  court  to  carry  his  suit  first 
to  the  county  court — thence  to  the  circuit  court — 
thence  to  n  bane  court,  and  thence  to  the  court  of 
appeals.  The  practical  operation  of  this  will  be, 
to  place  every  litigious  rogue  above  the  law  en- 
tirely, so  long  as  he  practices  his  frauds  upon  the 
poor  and  feeble  only,  or  those  who  have  not  both 
money  enough  and  fortitude  enough  to  run  the 
gauntlet  ot'  all  the  courts  of  the  state.  The  sec- 
tion proposed  to  obviate  this  evilby  the  gentleman 
from  Kings,  was  opposed  on  the  ground,  1st,  that 
it  conflicted  with  various  sections  already  adopted, 
and  2d,  that  it  would  be  unjust  to  the  poor  to  pre- 
vent them  from  carrying  their  small  suits  into  the 


815 


highest  courts  of  the  state,  and  obtaining  all  the 
justice  to  be  had  in  all  our  courts.  The  first  of 
these  objections  cannot  be  brought  to  bear  against 
my  amendment;  and  to  the  second  1  would  say, 
that  while  I  am  deeply  grateful  for  the  1'rien  isl.ip 
manifested  for  the  class  lo  which  1  have  the  honor 
to  belong,  and  which  i  mainly  represent — lor  the 
greater  part  of  the  people  ot  theciiy  of  New  York 
are  poor  men — yet,  as  the  benefit  sought  to  be  con- 
ferred on  ns,  \ve  would  respccttully  decline  it,  or 
rather  decline  it  with  all  our  might.  I  believe 
the  Anglo-Saxon  race  have  enjoyed  this  high  pri- 
vilege, as  the  gentleman  from  Herkimer  (Mr. 
HOFFMAN)  esteems  it,  ever  since  they  came  under 
the  Norman  yoke ;  and  I  am  certain  that  the  peo- 
ple of  New  York  have  possessed  it,  as  they  think, 
quite  long  enough.  I  have  never  yet  seen  a  poor 
man  who  was  at  the  same  time  an  honest  man, 
who  would  not  gladly  surrender  his  chance  of  a 
trial  in  live  or  six  courts  for  the  certainty  that 
when  he  had  won  his  cause  twice,  his  trials  should 
cease.  Thousands  of  poor  men  have  been  forced 
to  submit  to  the  frauds  and  wrongs  of  cheats  and 
oppit'ssors  in  silence,  not  because  there  \\-AS  any 
doubt  that  they  had  good  cause  of  action,  but  be- 
cause they  had  not  time  and  means  to  follow  the 
wrong-doer  through  all  the  courts,  and  knew  that 
they  would  be  ruined  by  law  expenses  and  thus 
forced  to  drop  their  suit  before  they  could  bring  it 
to  an  end.  Talk  ot  the  poor  man's  right  to  have 
his  cause  tried  five  times  ovei  !  Why.  a  man  who 
would  not  be  ruined  by  winning  his  cause  only 
twice  even,  cannot  be  very  poor,  and  should  not 
be  admitted  lo  the  honors  of  poverly.  All  real 
poor  men  shoulJ  repudiate  him  as  an  irr.postor. 

It  was  assumed  by  one  or  more  of  the  speakers 
on  Saturday,  that  the  justice  to  be  obtained  in  our 
higher  courts  would  be  a  very  superior  article  to 
common  justice.     I  know  not  how  this  may  be 
but  fear  it  may   sometimes   be   very  different. — 
However,  common  justice  and  common  sense  are 
*'  good  enough  for  poor  folks,"  and  I   hope  we 
shall  soon   have  no  other.     The  greatest  lawyer 
does  not  always  make  the  best  judge.     Lord  Ba- 
con was  convicted  of  taking  bribes  ranging  from 
£50   to   JE2UOO   in  more  than  twenty   cases,  and 
sometimes  from  both  parties  to  a  suit,  which  was 
not    only    wrong    but  imprudent.     Sir  Edward 
Coke,  too,  severely  punished  a  man  for  petition- 
ing the   King   in  relation  to   Bacon's  injustice, 
though  it  was  afterwards  proved,   and   confessed 
by  Bacon  himself,  that  he  had  received  a  bribe  of 
£100  from  the  party  opposed  to  the  petitioner. — 
f  his  famous  law  writings,  asserts 
that  it  is  utterly  illegal  to  put  suspected  persons 
on  the  rack  to  compel  confession ;  yet  he  affixed 
his  name  to  at  least  one  warrant  for  that  purpose, 
which  is  still  in  existence.  I  am  aware  that  there 
have  been  some  changes  of  fashion  since  the  year 
1020,  but  human  nature  still   is  pretty   much  the 
same.     "  Put  not  your  trust  in  Princes,"  even  the 
princes  of  the  law.     Though  always  unpleasant 
it  is    often  useful  to  reflect,  that  the  strongest 
minds  are  weak,  the  strongest  bodies  mortal.     Or 
high  courts  like   our  subordinate  courts  will  be 
constituted  mostly   of  every  day-men — the   crea- 
tures of  circumstances   and  of  habit.     There  are 
not  enough  of  truly  great  men  to  fill  the   bench 
of  our  higher  courts,  though  there  may  be  more 
than  enough  who  think  themselves  great,  and 


who  may  perhaps  bring  the  multitude  pro  tern. 
o  the  same  opinion. 

My  amendment  is  too  simple  to  need  explana- 
ion,  and  it  seems  to  me  too  just  to  require  any 
urther  argument.  I  shall  therefore  say  no  more. 

Mr.  SWACKHAMER  advocated  his  amend- 
ment at  some  length. 

Mr.  RICHMOND  protested  against  this  practice 
of  attempting  to  defeat  real  itlorm  by  saying  al- 
ways that  it  was  a  matter  of  meie  legislation. 

Mr.  RHOADES  was  opposed  to  the  adoption  of 
either  of  the  propositions.  It  all  belonged  to  the 
Legislature  to  settle  and  arrange. 

Some  conversation  ensued  between  Messrs. 
BASCOM  and  CHATFIELD. 

Mr.  SALISBURY  .noved  to  amend  the  amend- 
ment of  Mr.  HUNT  by  adding — "  No  court  shall 
grant  more  than  one  new  trial  in  any  cause  which 
shall  be  pending  in  such  court." 

Mr.  S.  then  moved  the  previous  question  upon 
the  several  propositions  pending;  and  there  was 
a  second. 

This  cut  off  his  own  proposition. 

The  amendment  of  Mr.  HUNT  was  negatived  : 
ayes  28,  noes  50. 

The  amendment  of  Mr.  TAGGART  was  also  re- 
jected :  ayes  20,  noes  61. 

Mr.  SWACKHAMER  asked  unanimous  con- 
sent to  accept  Mr.  HUNT'S  modification ;  this 
made  the  trial  upon  an  appeal  at  the  cost  of  the 
appellant,  when  the  former  decision  was  confirm- 
ed. 

Several  members  objected,  and  no  further 
amendment  was  allowed  to  be  received. 

Mr.  SWACKHAMER  called  for  the  ayes  and 
noes  on  his  proposition. 

They  were  ordered  and  resulted  as  follows : 

AYES— Messrs.  Burr,  Chamberlain,  Clark,  Conely,  Da. 
na,  Hotchkiss,  Hutchinson,  Hyde,  Kernan,  Kingsley,  Mor- 
ris, Penniman.  Richmond,  Si.  John,  Sallisbury,  Sears, 
Strong,  Swackhamer,  Townsend,  Young,  Youngs— 21. 

NAYS— Messrs.  Allen,  Angel,  Archer,  Ayrault,  F  F. 
Backus,  H.  Backus,  Bowdish,  Bray  ton,  Bull,  Cambreleng, 
Chatfield,  Cornell,  Crooker,  Cuddeback,  Dubois,  Flanders, 
Gebhard,  Greene.  Harris,  Hoffman,  Hunt,  A.  Huntington  , 
Patterson,  McNeil,  Miller,  Munro,  Mellis,  O'Conor,  Parish, 
Shaw,  Sheldon,  Shepard,  Simmons,  W.  II.  Spencer,  Ste- 
phens, Stetson,  Stow,  Taggart,  J.  J.  Taylor,  W.  Taylor, 
Van  Schoonhoven.Ward,  Witbeck,  Wood,  A.  Wright,  W. 
B.  Wright,  Yawger— 52. 

Mr.  STOW  offered  the  following  additional  sec- 
tion : 

— .  Nothing  contained  in  this  Constitution  shall  be  con- 
strued so  as  to  impair  the  power  or  jurisdiction  of  any 
court  of  record  (other  than  com  ts  of  equity)  now  estab- 
lished by  act  of  the  Legislature  in  any  city  of  this  state. 

Mr.  RUSSELL  moved  to  lay  it  on  the  table, 
but  his  motion  was  lost. 

The  section  was  rejected  without  a  division. 
The  15th  section  was  then  read,  as  follows  : 

§  15.  The  electors  of  the  several  towns  shall,  at  their  an- 
nual town  meeting.and  in  such  manner  as  the  Legislature 
may  direct,  elect  their  justices  of  the  peace.  Their  term 
of  oflice  shall  be  four  years.  Their  number  and  classifica- 
tion may  be  regulated  by  law. 

Mr.  HARRIS  moved  the  following  substitute  : 

^  15.  Justices  of  the  peace  in  the  several  towns  shall  be 
elected  by  the  electors  of  such  towns  at  their  annual  town 
meetings.  Justices  of  the  justices  courts  in  any  city  or 
village  in  which  a  justices  court  is  now  or  may  hereafter 
be  established  by  law,  shall  be  elected  by  the  electors  of 
such  city  or  village  at  such  time  as  may  be  provided  by 
law. 


816 


The  term  of  office  of  such  justices  shall  be  four  year 
except  when  otherwise  provided  by  law.  Their  numbe 
nd  classification  may  be  regulated  by  law.  Police  jusl 
ces  in  cities  and  villages  shall  be  appointed  by  the  commc 
council  or  the  board  of  trustees  of  such  cities  or  village 

Mr.  SALISBURY  moved  to  amend  by  makin 
the  justices  elective  by  the  county  instead  of  th 
city  or  village. 

After  some  desultory  conversation,  Mr.  CROOK 
ER  suggested  that  the  substitute  be  withdrawn 
to  allow  the  question  to  be  taken  upon  section  15 
Provision  for  cities  might  be  made  in  another  sec 
tion. 

Mr.  HARRIS  assented. 

Mr.  STRONG  offered  an  amendment  to  the  sec 
tion,  extending  the  exclusive  jurisdiction  to  $10( 
and  concurrent  to  $250,  and  providing  for  a  nevs 
trial  upon  appeal  in  the  same  town  or  in  one  ad 
joining.  Mr.  S.  advocated  his  proposition,  am 
reviewed  and  replied  to  the  objections  which  ha< 
been  urged  against  it. 

Mr.  CHATFIELD  would  leave  the  control  o 
the  jurisdiction  of  justices'  courts  where  it  has  al 
ways  been,  vested  in  the  Legislature.  They  woulc 
always  exercise  this  control  with  safety  and  pru 
dence,  as  they  had  heretofore  done.  He  did  no 
believe  that  the  interest  of  the  people  requirec 
that  exclusive  jurisdiction  should  be  extended  to 
sums  of  $11)0.  In  many  cases  it  would  produce 
losses  and  inconvenience.  He  believed  the  peo- 
ple would  demand  a  restoration  of  the  concurrent 
jurisdiction,  as  soon  as  they  had  felt  the  evils 
which  would  grow  out  of  a  provision  like  that 
now  proposed.  He  was  sorry  to  see  a  proposition 
so  pernicious  introduced  here,  which,  if  placed 
in  the  Constitution,  could  not  be  altered,  however 
loudly  the  people  might  call  for  it.  If  it  was  de- 
sirable to  prevent  appeals,  the  Legislature  might 
provide  that  the  cause  should  be  carried  up  only 
by  certiorari,  upon  questions  of  law  merely.  And 
if  the  decision  be  reversed,  (he  case  might  be  re- 
turned, not  to  the  justice^who  had  tried  it,  but  to 
the  person  who  had  appealed,  allowing  him  to 
brina;  it  again  whenever  he  chose,  instead  of  mak- 
ing it  necessary  to  bring  it  in  the  same  town  or  in 
one  adjoining;  because  his  change  of  residence 
might  make  it  more  convenient  to  bring  it  some- 
where else. 

Mr.  STRONG  replied,  stating  in  what  cases  his 
proposition  would  afford  relief.  Gentlemen  might 
endeavor  to  stave  off  this  question  by  saving  that 
these  reforms  might  be  obtained  at  'any  time 
of  the  Legislature ;  but  those  who  remembered 
the  failure  of  the  attempts  to  procure  legal  reform 
in  1840,  would  not  have  so  much  dependence  upon 
their  assertions.  Among  the  names  recorded  as 
voting  against  the  bills  then  attempted  to  be  pass- 
ed, was  found  that  of  the  gentleman  from  Otsego 
(Mr.  CHATFIELD)  and  nearly  all  the  members  who 
belonged  to  the  profession.  Here  we  could  settle 
this  matter  free  from  any  of  that  excitement  and 
bitterness  which  was  fell  in  the  Legislature  at  the 
period  he  alluded  to. 

Mr.  RICHMOND  advocated  the  amendment. 
Mr.  RHOADES  said  he  believed  he  could  give 
as  a  reason  why  the  Legislature  had  not  heretofore 
consented  to  extend  the  jurisdiction  of  justices' 
courts,  that  the  people  of  the  State  had  never  de- 
manded it.  He  could  say  that  this  was  the  fact 
as  regarded  his  own  county.  [The  gentleman 
from  Madison  (Mr.  DANA)  said  he  might  include 


his  county  likewise.]  He  (Mr.  R.)  was  rn  favor 
of  leaving  this  matter  with  the  Legislature,  as 
were  other  gentlemen.  They  could  improve  the 
character  of  these  courts  as  far  as  they  thought 
advisable,  and  would  never  refuse  to  accede  to  the 
demands  of  the  people  in  regard  to  it. 

Mr.  CROOKER  thought  it  unwise  to  bind  down 
by  an  iron  rule  the  jurisdiction  and  tenure  of  jus- 
tices'courts,  and  thus  prevent  any  future  improve- 
ment  of  a  court  which  was  susceptible  of  very 
great  improvement- 

Mr.  STETSON  also  opposed  the  amendment. 

Mr.  DANA  believed  that  the  duties  of  this 
Convention  did  not  relate  to  matters  which  were 
not  those  of  a  fundamental  character.  The  peo- 
ple might  elect  to  the  Legislature  those  who 
would  make  reforms  in  such  cases  as  this,  when 
they  were  demanded. 

Mr.  BASCOM  called  for  a  division  of  the  ques. 
tion,  and  the  Convention  refused  to  extend  the  ju- 
risdiction as  follows: — Ayes  26,  noes  44. 

AYES — Messrs.  Allen,     Archer,    Burr,    Catnbreleng, 
?ook,  Hart,  Hotchkiss,  A.Huntmgton,Hutchinson,  Hyde. 
Kernan.  Kingsley,  Miller,  Penniman,  Richmond,  St.  John, 
Salisbury,  Sears,  W.  H.  Spencer,  Strong,  Townsend.  Wa- 
erbury,  Witbeck,  Yawger,  Young,  Youngs— 26. 
NAYS— Mesrs  F.  F.  Backus,H.  Backus,  Bascom,  Bray- 
n,  Chatiield,  Clark,  Conely,  Crooker,  Cuddeback,  Dana, 
)ubois,  Flanders,  Gardner,  Greene,    Hawley,  Hoffman, 
lunter,  E.  Huntington,  Jordan,  Loomis,  McNeil,  Muiiro, 
fellis,  O'Conor,    Parish,    Patterson,    Perkins,    President, 
Rhoades,  Riker,  Russell,  Shaw,  Sheldon,  E.  Spencer,  Ste- 
phens,   Stetson,    Stow,   J.  J.  Taylor,    W~.  Taylor,  Ward, 
Wood,  Worden,  A.  Wright,  W.  B.  Wright— 44. 

The  second  clause  was  also  lost,  ayes  30,  noes 
2,  as  follows  : — 

AYES— Messrs.  Allen,  Archer,  Burr,  Clark,  Conely, 
Harris,  Hart,  Hotchkiss,  Hutchinson,  Hyde,  Jordan, Kings, 
ey  McNeil,  Miller,  Penniman,  Richmond,  St. John,' Sal- 
sbury,  Sears,  Shaw,  Sheldon,  E.  Spencer,  W.  H.  Spencer, 
trong,  Townsend,  Waterbury,  Witbeck,  Yawger,Young, 
'oungs— 30. 

NAYS— Messrs.  Angel,  F.F.  Backus,  H.  Backus,  Bas- 
om,  Cambreleng,  Chatfield,  Cook,  Crooker,  Cuddeback, 
Jana,  Dubois,  Flanders,  Gardner,  Gebhard,  Greene,  Haw 
ey,  Hoft'man,  Hunter,  A.  Huntington,  E.  Huntington, 
Lernan,  Loomis,  Munro,  Nellis,  O'Conor,  Parish,  Patter- 
on,  Perkins,  President,  Rhoades,  Riker,  Russell,  Sanford, 
tephens,  Stetson,  Stow,  J.  J.  Tavlor,  W.Taylor,  Ward. 
Vood,  Worden,  W.  B.  Wright— 42. 

Mr.  STRONG  then  offered  the  amendment 
eretofore  proposed  by  Mr.  MAISHV,  giving  exclu- 
ive  jurisdiction  in  $50,  and  concurrent  in  $250; 
laking  the  costs  in  courts  of  record  the  same  in 

rial  of  civil  actions  and  appeals  therefrom  as 

vould  occur  in  justices'  courts  ;  and  applying  the 
revision  to  justices'  courts  in  cities. 
Mr.  CHATFIELD  moved  to  substitute  the  10th 
lapter  of  the  revised  statutes. 
Mr.  WORDEN  did  not  agree  exactly  with  his 
iend  from  Otsego,  although  he  would  rather  this 
tatter  should  be  left  to  the  legislature.     He  did 
ot  think  it  necessary  that  a  man  having  a  claim 

gainst  another  for  more' than  $50,  should  be  ob- 
ged  to  employ  a  lawyer  and  take  it  into  a  court 
*  record.  He  would  make  it  merely  necessary 
i  have  the  claim  preferred  before  a  justice,  and 
there  is  no  defence,  let  a  judgment  be  docketed 
once.  The  employment  of  lawyers  in  the  col- 
ction  of  debts  only  degraded  the  profession, 
e  offered  the  following  as  a  substitute  for  the 
iction : — 
Justices  of  the  peace  may  render  judgment  for  any 

mount  not  exceeding  $500,  on  money  contracts  or  agree- 
ents  for  the  payment  of  money,  where  no  defence  is  in- 


817 


terposed;  and  where  such  defence  is  interposed  in  any  case 
where  the  plaintiff  shall  claim  to  recover  over  $100,  the 
justice  before  whom  the  cause  is  pending  shall  adjourn 
the  cause  into  the  supreme  court;  but  when  the  plaintiff 
shall  not  claim  to  recover  over  $100,  the  justice  shall  re- 
tain jurisdiction  of  the  cause  and  may  render  judgment 
thereon.  No  costs  shall  be  allowed  in  any  court  of  re- 
cord where  the  recovery  is  by  default  and  does  not  exceed 
$500,  and  the  parties  reside  in  the  same  county.  In  similar 
cases  where  the  parties  reside  in  different  counties,  actual 
expenses  and  disbursements,  with  $5  costs,  may  be  allow- 
ed where  the  recovery  is  over  $100. 

Mr.  RUSSELL  moved  the  previous  question. 
There  was  a  second. 

The  amendment  of  Mr.  MANN  was  rejected 
without  a  division. 

The  15th  section  was  agreed  to  :  ayes  65,  noes 
9. 

Mr.  STRONG  moved  the  amendment  of  M-r 
WORDEN  as  an  additional  section. 

Mr.  BASCOM  moved  to  strike  out  all  after 
$500.  This  would  prevent  crossing  notes  over 
•county  lines,  to  get  rid  of  judgments. 

Mr.  HAWLEY  moved  to  lay  the  whole  on  the 
table. 

Mr.  STRONG  demanded  the  ayes  and  noes  on 
this  motion,  and  it  was  lost,  40  to  43. 

Mr.  RUSSEL  moved  the  previous  question  up- 
on the  section  and  the  amendments.  Seconded. 

Mr.  STRONG  desired  to  accept  the  amendment 
of  Mr.  BASCOM,  striking  out  the  last  sentence, 
and  was  allowed  to  do  so  by  unanimous  consent. 

The  proposition  was  rejected;  ayes  9,  noes  58. 

Mr.  $TOW  offered  a  section  providing  for  the 
•election  of  justices  of  the  peace  in  cities. 

Mr.  PATTERSON  moved  to  adjourn.  Agreed 
to. 


AFTERNOON  SESSION. 

A  quorum  was  not  obtained  until  4  o'clock. 

Mr.  STOWS  amendment  was  announced  as 
the  pending  question  : 

"  Justices  of  the  peace  in  the  citi«s  shall  be  chosen  by 
the  electors  thereof,  or  by  the  wards  thereof,  as  shall  be 
prescribed  by  law.  They  shall  kold  their  offices,  after 
the  first  classification,  for  lour  years.  Their  number, 
classification,  and  compensation  shall  be  regulated  by 
law." 

Mr.  HARRIS  offered  this  as  a  substitute : 
{)  —  Justices  of  justices'  courts,  and  justices  of  the  peace 
in  cities  shall  be  selected  by  the  electors  of  such  cities,  or 
wards  thereof,  at  such  time  and  lor  such  term  as  shall  be 
prescribed  by  law.  Police  justices  in  any  city  or  village 
«hall  be  appointed  by  the  common  council  or  board  of 
trustees  of  such  city  or  village. 

Mr.  VAN  SCHOONHOVEN  offered  the  fol- 
lowing as  an  amendment  to  Mr.  STOW'S  section ; 
to  come  in  after  the  words  "justices  of  th« 
justice:" 

"  Police  justices  of  cities,  recorders,  and  all  other  officers 
now  authorized  or  who  may  be  hereafter  authorized  undex 
this  constitution,  or  existing  laws,  to  hold  a  court  or  dis- 
charge judicial  functions  in  municipal  or  justice*'  courts, 
in  eiuier  of  the  cities  of  this  state,  shall,  after  the  adoption 
of  this  article  of  the  constitution,  be  elected  to  their  re- 
spective offices  as  may  be  provided  by  law.  The  legisla- 
ture shall  determine  such  times  and  terms,  at  its  next  an- 
nual session.  Justices  of  city  courts,  who  may  be  in  the 
office  on  the  first  day  of  January  next,  shall  hold  their 
offices  until  the  2Lst  day  of  December  following,  but  no 
longer." 

Mr.  PATTERSON  said  that  this  proposition 
required  some  amendment.  It  ought  to  leave  the 
mode  of  election  to  the  legislature. 

Mr.  HARRIS  said  that  that  was  precisely  what 
his  proposition  was  intended  to  effect. 


Mr.  VAN  SCHOONHOVEN  said  that  it  did 
not  apply  to  recorders  of  cities. 

Mr.  HARRIS  said  he  wanted  these  recorders 
to  be  elected ;  but  the  proper  place  for  such  a 
provision  would  be  in  the  article  reported  by  Mr. 
ANGEL. 

Mr.  VAN  SCHOONHOVEN  said  he  wanted 
but  one  section  for  this  whole  subject.  The  of- 
fice of  recorder  was  a  very  important  one.  But 
in  his  (Mr.  V.  S's)  proposition,  he  extended  the 
principle  to  all  local  judicial  officers.  He  would 
accept  the  suggestion  of  Mr.  PATTERSON,  and 
modify  his  section  so  that  it  should  read,  after  the 
word  **  office,"  "  at  such  times,  for  such  terms 
and  in  such  manner  as  shall  be  prescribed  by 
law." 

Mr.  SHEPARD  desired  to  get  a  division  of 
this  question ;  he  wanted  a  vote  put  separately 
on  some  of  these  officers — recorders  for  instance. 
He  did  not  want  to  seethe  recorder  of  New- York 
city  affected  by  any  such  provision  as  this.  The 
recorder  of  New- York  had  a  more  extensive  ju- 
risdiction than  any  other  recorder  in  the  state.  In 
fact  his  criminal  jurisdiction  is  co-extensive  with 
that  of  a  circuit  judge,  except  for  capital  offences. 

Mr.  VAN  SCHOONHOVEN  said  that  he  would 
strike  out "  Recorders," 

Mr.  MORRIS  moved  to  insert  after  the  word 
«*  offices"  these  words 4  *«  the  officers  for  districts 
by  the  electors  of  their  respective  districts,  and 
the  officers  for  the  whole  city,  by  the  electors  of 
the  whole  city." 

Mr.  VAN  SCHOONHOVEN  accepted  this  mo- 
dification 

Mr.  MORRIS  said  that  in  New  York  city,  they 
had  assistant  justices  for  particular  districts;  and 
these  are  appointed  by  the  common  council;  and 
have  jurisdiction  co-extensive  with  the  city;  as 
justices  of  the  peace  were  elected  in  towns,  and 
nad  jurisdiction  co-extensive  with  the  county. — 
Now  he  desired  to  have  these  justices  elected  by 
their  respective  distticis  But  the  police  justices, 
and  the  various  court  justices  whose  jurisdiction  . 
extended  over  the  whole  city,  he  desired  to  sec .- 
elected  bv  the  voteis  «f  the  whole  island. 

Mr,  SHEPARD  said  that  this  division  of  th< ; 
city  into  districts  was  merely  for  the  despatch  o  f 
business ;  any  district  judge  can  have  jurisdictioi  i 
over  the  whole  city,  and  also  has  power  to  tr  y 
causes  in  a  neighboring  district,  in  the  absence  o  r 
sickness  of  the  district  judge. 

Mr.  HOFFMAN  said  there  was  a  great  deal 
too  much  of  detail  in  this  rule ;  true,  it  might  be 
necessary  to  elect  some  by  districts,  and  some  Iby 
the  State  at  large;  some  for  a  longer  term — some 
for  a  shorter  term.  But  all  that  was  really  nec- 
essary to  insert  in  the  constitution,  was  to  pro- 
vide generally  that  judicial  officers  in  cities  shall 
be  elected  in  such  manner  and  in  such  terms  as 
the  legislature  shall  hereafter  prescribe. 

Mr.  MORRIS  said  that  he  wanted  the  constitu- 
tion to  say  exactly  how  the  officers  in  the  city  of 
New  York  were  to  be  elected ;  and  he  did  so,  be- 
cause he  did  not  want  that  city  to  be  compelled  to 
come  here,  and  ask  for  special  legislation;  because 
those  applications  on  her  part  were  always  re- 
garded with  much  jealousy,  as  designed  to  secure 
some  special  privilege  not  enjoyed  by  other  sec- 
tions of  the  State.  All  he  had  desired  to  effect 
by  his  amendment  was,  to  secure  to  the  city  New 

77    ; 


818 


York  with  regard  to  the  justices  what  the  country 
had  in  regard  to  theirs ;  and  nothing  more. 

Mr.  SHEPARD  said  that  New  York  had  not 
applied  for  any  special  legislation  since  1813,  ex- 
cept to  change  these  districts. 

Mr.  O'CONOR  thought  it  desirable  that  this 
matter  of  the  appointment  of  city  officers,  should 
riot  be  taken  up  now;  but  that  it  should  be  left 
until  vve  came  to  the  article  reported  by  Mr.  AN- 
GEL. But  he  would  now  oif'er  an  amendment, 
excepting  the  city  of  New  York  from  the  opera- 
tion of  this  rule.  He  did  not  want  New  York  in- 
terfered with  at  all.  He  would  not  pretend  to 
say  how  far  justices  courts  in  the  country  had 
answered  the  purposes  of  their  creation  ;  but  in 
regard  to  similar  courts  in  New  York,  he  would 
say  that  a  better  class  of  institutions  for  judicial 
purposes  did  nor,  exist  any  where.  As  early  as 
1820,  the  legislature  organized  the  justice's  court 
there — divided  the  city  into  districts,  giving 
each  a  justice  of  the  peace,  holding  for  four  years, 
appoinied  by  the  common  council,  with  a  salary 
and  a  clerk.  The  constitution  of '21  recognized 
these  courts,  and  made  them  permanent.  These 
courts  had  worked  well,  disposing  of  a  great  mass 
in  minor  causes,  affecting  a  greater  amount  of  pe. 
cuniary  interest,  and  a  much  greater  Amount  oi 
individual  interest  than  many,  perhaps  than  most 
of  the  courts  of  superior  jurisdiction,  or  record  in 
Ihe  State.  Now  in  organizing  county  conns,  the 
convention  had  excepted  the  city  of  New  Yoik. — 
He  asked,  in  organizing  the  inferior  or  justices' 
courts  for  other  counties,  that  the  convention 
would  pursue  the  same  course — except  the  city 
of  New  York,  and  leave  it  to  the  action  of  the  law. 
It  would  lead  to  no  more  special  legislation  than 
•it  had  heretofore,  and  as  his  colleague  h-ad  »tated, 
there  had  been  none  since  1813.  Mr.  O'C.  hoped 
that  the  senior  delegate  from  the  city,  who  seldom 
asked  the  attention  of  the  bcdy,  would  favor  the 
convention  with  his  view  on  this  uhject. 

Mr.  ALLEN  did  not  know  that  he  could  add 
any  thing  to  what  had  been  said  by  his  colleague. 
These  district  courts  were  organized  in  1820,  as 
had  been  stated.  He  was  at  that  time  a  member 
of  the  common  council  and  he  had  occasion  to 
know  something  of  them.  Previous  to  that,  we 
had  a  court  in  each  ward,  which  gave  great  dis- 
satisfaction, owing  to  the  great  amount  of  small 
litigation  which  was  promoted  by  the  justice. — 
In  that  state  of  things  these  district  courts  were 
organized  by  an  act  of  the  legislature — the  judges 
were  men  of  the  legal  profession,  and  had  the 
confidence  of  suitors.  He  had  heard  no  complaint 
of  them.  Every  body  was  satisfied  with  them  and 
to  break  them  up  would  be  to  inflict  injury  on  the 
city.  The  aldermen  were  all  justices  of  the 
peace,  and  two  of  them  always  sat  with  the  mayor 
in  the  court  of  sessions.  We  had  also  the  ma- 
rine court,  and  the  common  pleas.  The  people 
were  perfectly  satisfied  with  the  arrangement  ot 
their  courts.  *  They  asked  nothing  of  the  legisla- 
ture or  the  Convention  but  to  be  left  as  they  were. 

Mr.  MORRIS  did  not  intend  by  his  amendment 
to  cast  an  imputation  against  the  justices  of  the 
peace  of  the  city  of  New-York.  The  argument 
in  favor  of  salaried  justices  in  New- York  was  to 
be  found  in  the  fact,  that  those  so  paid  then  dis- 
charged -an  immense  amount  of  business.  But  he 
did  not  say  this  of  all  the  police  magistrates,  be- 


cause he  did  not  believe  it.  He  would  elect  eve- 
ry officer  in  the  state  except  the  immediate  attache 
of  other  officers,  and  he  could  see  no  reason  why 
the  city  of  New  York  should  be  excepted  from  this- 
proposition.  He  desired  no  local  court  for  New- 
York,  or  that  there  should  be  a  shadow  of  differ- 
ence between  the  judiciary  of  that  county  and  that 
of  the  other  counties-all  he  desired  was  a  sufficient 
force  to  transact  the  business  there.  He  never 
would  consent  that  the  judiciary  of  New-York 
should  be  appointed  at  Albany,  while  it  was  elec- 
ted by  the  people  in  the  rest  of  the  state.  When 
he  found  that  the  convention  were  not  disposed 
to  grant  to  the  city  of  New-York  increase  of  force, 
then  he  was  obliged  to  go  for  a  local  court. 

Mr.  SHEPARD  desired  that  the  question  here 
should  not  be  tried  on  the  principle  of  an  election, 
New- York  was  as  strongly  in  favor  of  that  princi- 
ple as  any  other  portion  of  the  state. 

Mr.  TOWNSEND  was  reluctant  to  vote  to  ex- 
cept New- York  from  the  general  election  princi- 
ple that  was  was  about  to  be  applied  to  the  other 
parts  of  the  State.  He  thought  this  matter  might 
better  be  deferred  to  the  City  Convention  now  be- 
ing held  there.  Rather  than  appear  to  be  asking 
for  an  exception  he  should  vote  against  it. 

Mr.  VAN  SCHOONHOVEN  accepted  the 
amendment  of  Mr.  MORRIS. 

The  question  was  then  taken  on  the  amend- 
ment. 

Mr.  TOWNSEND  moved  to  lay  the  whole  sub- 
ject on  the  table,  as  the  amendment  proposed  by 
the  gentleman  from  Erie,  was  not  necessarv. 
Messrs.  ALLEN,  P  ATTERSON,CHATF~IELD, 

:AMBRELENG  and  O'CONOR,  continued  the 

debate,  when  the-  question  was  taken  on  the 
amendment  of  Mr.  O'CONOR,  and  it  was  adopted, 
ayes  38,  nays  31. 

AYES— Messrs.  Allen,  Bascom,  Bouck,  Bowdish,  Bull, 
Candee,  Chatfield,.  Clark,  Goncly,  Cornell,  Cuddeback, 
Flanders,  Gardner,  Greene,  Hart,  Hofl'man,  Hunt,  Hunier. 
A.  Huntington,  E.  Huntington,  Jordan,  Kemble.  Kernnn, 
Kingsiey,  Nellis,  O'Conor,  Parish,  Perkins,  Rhoades,  Hi- 
ker. Russell,  St.  John  Sanlord,  Shepard,  Stephens,  Stet- 
son, W.  '1  ay  lor,  Ward— 38. 

NOES— Messrs.  Brayton,  Cambreleng,  Cook,  Dana, 
Gebhard,  Hawley,  Hotchkiss,  Looniis,  Miller,  Alorris, 
Munro,  Nicholas,  Patterson,  I'enniman,  Richmond,  Salis- 
bury, Sears,  Sheldon,  \V.  M.  Spencer,  Stanton,  M. 
S'-vackhamer,  Townsend.  Van  Schoonhoven,'  Wateihury, 
Wood,  A.  Wright,  W.  B.  Wright,  Yawger,  Young, 
Youngs—  31. 

The  question  being  then  on  the  amendment  of 
Mr.  VANSCHOONHOVEN  as  amended, 

Mr.  W.  TAYLOR  moved  to  add  the  words  "in- 
corporated villages"  after  the  word  "  cities." 

Mr.  HARRIS  had  some  doubt  as  to  the  expedi- 
ency or  propriety  of  electing  police  justices. — 
There  were  circumstances  connected  with  the 
discharge  of  their  duties  which  rendered  it  pro- 
per that  they  should  be  elected  by  boards  of  trus- 
tees and  common  councils.  He  should  move  to 
amend  by  striking  out  that  portion  of  the  amend- 
ment. 

Mr.  SWACKHAMER  considered  this  as  doubt- 
ing the  correctness  of  the  principle  of  an  elective 
judiciary,  and  was  the  move  surprised  to  see  it 
come  from  a  gentleman  who  had  been  so  ardent 
in  his  advocacy  of  that  principle. 

Mr.  VAN  SCHOONHOVEN  followed  on  ihe 
same  side. 

Mr.  HARRIS  moved  to  insert ,  after  justices  of 


819 


the  peace,  "and  justices  ot  justice's  courts  in 
cities,  shall  he  elected  by  the  electors  of  such 
cities,  at  such  times  and  for  such  terms  as  rn;\y  b>- 
prescribed  by  law."  His  amendment  was  adopted. 
Mr.  VAN  SCHOGNHOVEN-iiow  moved  to 
•amend  by  inserting  •'  police  magistrates" — but 
without  taking  the  question,  the  Convention  ad- 
journed to  84  o'clock  to-morrow  morning. 

TUESDAY,  (S3rd  day)  Sept.  8. 

Prayer  by  the  Rev.  Mr.  SCHNKLLER. 
DEBATE  ON  THE  JUDICIARY. 

Mr.  COOK  offered  the  following: 
•"  Resolved,  That  all  debate  on  the  judiciary  article  and 
the  several  propositions  oil  the  same  subject,  shall  cease 
at  or  before  12  o'clock  at  noon  this  day." 

Mr.  DANA  asked  if  the  judiciary  committee 
were  ready  to  report  upon  the  propositions  recent- 
ly referred  to  them  ? 

Mr.  O'CONOR  said  they  would  report  in  the 
afternoon. 

On  ino'iou  of  Mr.  KEMBLE,  the  resolution  was 
laid  on  the  table,  ayes  46  to  19. 

The  Convention  then  took  up  the  unfinished 
business,  beinjt  the  report  on  the 

JUDICIARY   SYSTEM. 

The  question  pending  was  Mr.  VAN  SCHOON- 
HOVEN'S  amendment  to  Mr.  STOW'S  proposition, 
(which  Mr.  V.  S  offered  last  night.) 

This  was  put  and  lost. 

Mr  STOW'S  proposition,  (offered  yesterday,)  then 
came  up. 

Mr.  CAMBRELENG  said  that  as  the  section 
now  stood,  ii  would  prevent  the  election  of  justices 
in  the  city  of  New  York. 

Mr.  MORRIS  moved  to  amend  as  follows;  or 
offered  the  following  as  a  substitute  for  the  sec- 
tion already  adopted  by  amendment: — 

All  judicial  officers  of  cities  and  villages,  and  all  such 
judicial  officers  as  may  be  created  by  law  therein,  shall  be 
wlected  at  such  times  and  in  such  manner  as  the  legisla- 
ture may  direct. 

Mr.  PATTERSON  called  for  the  ayes  and  noes. 

They  were  ordered. 

Mr.  BASCOM  said  the  amendment  was  so 
drawn  os  to  imply  unlimited  power  in  the  legis- 
lature to  create  judicial  offices. 

Mr.  MORRIS  said  that  he  intended  to  give  the 
legislature  power  to  make  provision  for  the  ap- 
pointment of  such  officers  as  he  pointed  out  and 
no  others ;  but  that  the  appointment  of  them  (like 
others)  should  be  by  election  by  the  people. 

The  amendment  of  Mr.  MORRIS  was  adopted. 
Ayes  60,  noes  13. 

Mr.  VAN  SCHOONHOVEN  moved  to  add  a 
provision  that  the  legislature  should  provide  for 
the  election  of  these  officers,  and  making  the 
term  of  those  now  in  office  expire  on  the  1st  of 
Janui 

Mr.  STOW  thought  the  election  of  these  offi- 
cers would  be  provided  for  by  some  general  law, 
and  he  did  not  consider  it  necessary  to  make 
especial  arrangements  for  the  election  of  justices 
in  cities.  k 

Mr.  RIIOADES  moved  to  except  incorporated 
villages  from  the  provisions  of  the  new  section. 

The  PRESIDENT  said  the  proposition  of  Mr. 
MORRIS  having  been  adopted  as  a  substitute  to  all 
the  other  propositions,  it  was  not  now  amendable. 
The  gentlemen,  however,  could  accomplish  their 


purpose  by  having  their  amendments  as  separate 
sections. 

Mr.  VAN  SCHOONHOVEN :  My  dear  sir,  I 
do  not  offer  my  proposition  as  an  amendment,  but 
as  a  new  section.  I  supposed  the  other  matter 
was  disposed  of  by  the  last  vote. 

The  PRESIDENT  said  the  final  vote  was  yet 
to  be  taken  upon  the  new  section. 

Mr.  STOW  said  that  he  would  like  to  have  the 
section  so  amended  that  these  officers  might  be 
elected  either  by  the  city  or  by  the  county.  In 
some  cases  it  might  be  proper  to  have  them  elec- 
ted by  the  county  at  large.  The  city  of  Buffalo 
had  GOOO  inhabitants  who  resided  without  the 
bounds  of  the  municipality,  and  the  expenses  of 
these  local  magistrates  who  had  jurisdiction  in 
.11  parts  of  the  county  was  paid  jointly  by  the  city 
and  county. 

Mr.  MORRIS  said  that  he  intended  his  amend- 
ment should  give  power  to  the  Legislature  to 
make  all  necessary  provisions  to  meet  the  circum- 
stances of  the  several  cities  arid  counties,  so  that 
New  York  city  should  not  be  an  exception. 

A  question  was  here  raised,  whether,  by  the 
proposed  section,  there  would  not  be  latitude  giv- 
en to  the  Legislature  to  give  the  appointment  of 
these  officers  to  the  Common  Council  or  to  the 
Board  ot  Supervisors. 

Messrs.  PATTERSON,  TALLMADGE,  MUR- 
PHY, STOW,  MORRIS,  LOOiVlIS,  and  VAN 
SCHOONHOVEN  differed  on  this  point. 

Mr-  TALLMADGE  was  opposed  to  making 
these  minor  police  officers  elective  by  the  people. 

Mr.  LOOMIS  was  opposed  to  making  any  pro- 
vision >n  the  Constitution  as  to  the  election  or  ap- 
pointment of  these  officers.  There  was  a  great 
difference  of  opinion  jn  regard  to  the  propriety  of 
the  election  of  these  officers,  and  such  persons 
would  vote  against  the  Constitution  if  it  contained 
this  provision.  He  would  merely  say,  the  Legis- 
lature mav  provide  for  theelectian  or  appointment 
of  such  officers,  and  leave  it  open  to  their  discre- 
tion. 

Mr.  MURPHY  protested  against  any  distinc- 
tion between  the  cities  and  country  towns  in  re- 
gard to  this  matter.  The  Convention  had  already 
decided  that  the  towns  might  elect  justices  of  the 
peace,  but  they  seemed  to  fear  for  the  intelligence 
of  the  population  in  cities.  He  demanded  the 
ayes  and  noes  on  the  final  adoption  of  the  section, 
when  it  was  agreed  to — ayes  54,  noes  25. 

Mr.  STOW  moved  a  reconsideration.  He  had 
doubts  as  to  the  legal  construction  of  the  language 
of  the  section. 

Mr.  RHOADES  moved  the  following  addition- 
al section: — 

§  — .  Police  justices  in  incorporated  villages  shall  be  ap- 
pointed by  the  board  of  supervisors  of  the  several  coun- 
ties in  which  such  villages  are  situated,  in  such  manner  as 
shall  be  prescribed  by  law. 

Mr.  STOW  moved  to  include  cities. 

Mr.  LOOMIS  doubted  if  this  was  in  order.  The 
section  that  the  House  had  already  adopted  made 
this  new  provision  nugatory. 

The  PRESIDENT  said  that  the  proposition 
was  in  order. 

Mr.    MORRIS  said  that  he  desired  and  would 
move  to  except  the  city  of  New  York.     He  felt 
convinced   that  the  police  magistrates  of  cit 
above  all  other  officers,  should  be  elected  by 


820 


people,  and  most  especially  in  the  city  of  New 
York. 

Mr.  VAN  SCHOONHOVEN  said  that  he  must 
also  move  to  except  the  city  of  Troy. 

Mr.  F.  F.  BACKUS :  And  I  move  also  to  ex- 
cept the  city  of  Rochester. 

Mr.  STOW  :  Then  I  will  withdraw  my  mo- 
tion 

Mr.  RHOADES  was  in  favor  of  and  supported 
his  own  proposition. 

Mr.  VAN  SCHOONHOVEN  moved  to  amend 
the  proposition  of  Mr.  RHOADES  as  follows  : — 
Strike  out  all  after  the  word  "  be,"  and  insert 
'*  elected  by  the  electors  of  the  counties  in  which 
such  villages  are  located,  in  such  manner,  and 
for  such  terms,  as  the  legislature  may  direct." 

Mr.  WATERBURY  thought  this  proposition 
was  backing  water  upon  the  principle  of  election. 

Mr.  RHOADES  accepted  the  amendment  of 
Mr.  VAN  SCHOONHOVEN. 

M.  LOOMIS  thought  the  section  already  adopt- 
ed covered  the  whole  ground.  This  would  only 
imply  the  power  to  appoint  a  new  batch  of  of- 
ficers. 

Mr.  RHOADES  said  this  provision  gave  the 
counties  the  right  to  vote  for  those  police  officers 
•who  were  paid  a  salary  out  of  the  county  treasury. 

Mr.  BERGEN  said  this  was  not  the  case  in  all 
instances,  and  would  operate  unjustly  where 
these  officers  were  paid  by  the  localities  in  which 
they  exercised  their  powers. 

Mr.  COOK  said  that  the  village  of  Saratoga 
Springs  had  a  police  justice  who  was  paid  by  the 
town ;  it  was  a  place  of  great  resort  during  the 
summer  months,  and  from  that  fact  a  large  amount 
of  petty  criminal  business  was  of  necessity  done 
before  that  magistrate  during  those  months,  and 
it  would  be  very  unfair  to  make  the  county  of 
Saratoga  pay  for  the  regulation  of  the  morals  of 
the  place  whilst  the  disorderly  &c.  from  other 
places  caused  the  expense 

The  proposition  of  Mr.  RHOADES  was  rejected : 
ayes  3,  noes  76. 

Mr.  MANN  moved  a  reconsideration  of  the 
vote  adopting  the  7th  section  of  the  article  and 
proposed  the  following  amendment : — 

Strike  out  after  the  word  "  officer,"  in  the  fifth  line,  and 
insert:  "  Any  male  citizen  of  the  age  of  21  years,  of  good 
moral  character,  on  application  to  the  supreme  court,shall 
be  admitted  to  practice  as  an  attorney  and  counsellor,  and 
every  party  in  any  cause,  prosecution  or  suit  may  appear, 
plead  pursue  or  defend,  in  his  proper  person,  or  by  any 
citizen  of  good  character." 

Mr.  STETSON  believing  that  we  had  already 
sufficient  legislative  provisions  in  the  article,, 
moved  to  lay  the  motion  to  reconsider  on  the  table. 

Mr.  MURPHY  demanded  the  ayes  and  noes  on 
this  motion,  and  it  was  lost:  ayes  20,  noes  58. 

The  motion  to  reconsider  was  also  lost :  ayes 
42,  noes  42. 

Mr.  VAN  SCHOONHOVEN  proposed  the  fol- 
lowing as  an  additional  section  : — 

&  — .  The  Legislature  shall  provide  for  the  election  of  the 
judicial  officers  mentioned  in  tne  preceding  section  at  its 
next  annual  session.  Those  justices  of  the  peace  and  jus- 
tices of  city  courts  who  may  be  in  office  on  the  first  day 
of  January  next,  shall  hold  their  offices  until  the  31st  day 
of  December,  1847,  and  no  longer. 

This  was  rejected:  ayes  18,  noes  43. 
Mr.  VAN  SCHOONHOVEN  then  offered  |the 
following  additional  section  : — 


§— •  AU  justices  of  city  courts  and  other  city  judicial 
officers  who  may  be  in  office  on  the  first  day  of  January 
next,  shall  hold  their  offices  until  the  31st  day  of  Decem- 
ber next  thereafter,  and  no  longer. 

Mr.  JORDAN  supposed  that  it  would  be  abso- 
lutely necessary  to  insert  some  such  provision  as 
this  before  the  Judiciary  article  was  accepted ; 
but  he  believed  it  would  be  advisable  to  wait  un- 
til all  the  details  were  settled.  He  moved  to  lay 
the  matter  on  the  table. 

Mr.  VAN  SCHOONHOVEN  was  willing  to 
refer  the  subject  to  the  judiciary  committee. 

It  was  so  referred. 

Mr.  KEMBLE  proposed  the  following  as  an 
additional  section : — 

§  — .  The  Legislature  shall  provide  that  a  judgment  or 
decree  rendered  by  the  Supreme  Court  shall  be  executed, 
notwithstanding  an  appeal  or  writ  of  error,  upon  adequate 
security  being  given  to  make  full  restitution  in  the"  event 
of  a  reversal  or  modification  of  such  judgment  or  decree,, 
on  appeal. 

Mr.  WATERBURY  advocated  the  section. 

Mr.  JORDAN  moved  to  amend  so  that  the  se- 
curity should  be  a  lien  upon  unincumbered  real 
estate. 

Mr.  KEMBLE :  Suppose  the  party  has  no  real 
estate  ? 

Mr.  JORDAN  :  Then  let  him  get  some  friend 
to  aid  him. 

Mr.  KEMBLE  said  that  he  really  was  astonish- 
ed to  think  that  real  estate  should  be  required 
when  a  party  was  willing  to  pay  the  necessary 
sum  into  court.  If  the  gentleman  would  add,  "or 
the  money  may  be  paid  into  court,"  he  would  not 
object,  but  as  it  was  now  proposed  it  would  de- 
prive all  those  of  justice  who  were  not  in  posses- 
sion of  real  estate. 

Mr.  JORDAN  only  desired  to  guard  against  the 
fluctuations  of  mere  personal  property.  A  man 
who  was  rich  to-day  might  be  poor  to-morrow, 
and  his  personal  guarantee  would  be  worthless 

Mr.  PATTERSON  said  this  whole  subject  was 
within  the  control  of  the  legislature,  and  we  had 
better  stop  somewhere,  and  he  thought  that  this 
was  about  the  right  spot.  If  we  adopt  this,  we 
might  as  well  go  on  until  we  incorporate  the 
whole  of  the  Revised  Statutes  and  Cowen's  Trea- 
tise in  the  Constitution. 

Mr.  STOW  said  that  he  should  oppose  the  a- 
mendment  for  the  same  reason,  and  also  for  the 
greater  reason  that  this  was  the  most  unjust  and 
unreasonable  provision  that  could  be  devised. — 
The  matter  should  be  left  to  the  legislature,  to  be 
accomplished  mainly  by  a  regulation  in  relation 
to  cost.  This  provision  would  be  saying  in  point 
of  fact  that  the  rich  man  might  appeal,  but  that 
the  poor  man  should  not  appeal.  He  solemnly 
protested  against  any  such  a  state  of  things. 

Mr  WOKDEN  believed  (he  argument  that  this 
was  a  subject  of  legislation,  would  prevent  our 
putting  anything  in  the  Constitution.  For  unless 
we  make  a  constitutional  provision,  then  the  Le- 
gislature would  have  power  to  act  on  any  subject. 
He  thought  favorably  ot  the  provision,  and  spoke 
of  the  manner  in  which  appeals  were  now  brought. 
Was  there  not  more  reason  in  giving  the  party  who 
had  obtained  the  judgment  in  the  supreme  court, 
the  rieht  to  receive  what  has  been  awarded  him, 
on  his  giving  abundant  security,  than  to  allow  the 
other  party  to  keep  him  out  of  his  rights,  on  giv 
ing  bail  which  might  prove  worthless?  He  an 


821 


swered  the  argument,  that  this  would  favor  the 
rich  at  the  expense  of  the  poor,  alleging  that  it 
was  unsound.  He  considered  this  to  be  a  sound 
principle,  and  hoped  it  would  be  incorporated  into 
the  Constitution, doubting  very  much,  it  we  failed 
to  do  so,  whether  the  Legislature  would  have  the 
power  to  pass  such  a  law. 

Mr.  STETSON  said  if  there  was  any  necessity 
for  this  provision,  then  the  Convention  had  failed 
to  provide  such  a  judicial  force  as  would  prevent 
delays  of  justice.  There  might  have  been  a  ne- 
cessity for  such  a  provision  under  the  old  system  ; 
and  if  itHvas  still  required,  he  would  suggest  that 
we  should  go  to  the  Legislature  for  a  new  lease  of 
time,  in  older  to  get  up  a  new  system.  He  could 
not  agree  to  such  an  extension  of  credit  in  the 
courts.  It  provided  that  a  man  should  be  executed 
first  and  tried  afterwards. 

Mr.  O'CONORsaid  that  it  would  be  exceedingly 
unwise  to  carry  such  details  of  practice  into  the 
Constitution  j  he  regarded  it  as  a  mere  matter  ol 
legislation.  He  was  opposed  to  the  incorporation 
of  any  of  these  provisions  into  the  fundamental 
law. 

Mr.  WATERBURY  said  that  if  folks  could  be 
satisfied  with  these  arguments,  that  when  a  judg- 
ment is  rendered  against  a  man  he  must  allow  his 
property  to  go  with  it,  then  he  had  nothing  more 
to  say  ;  but  he  was  surprised  that  it  should  be 
contended  that  property  should  follow  the  decis- 
ions of  courts  which  were  so  often  reversed. 

Mr.  RHOADES  was  in  favor  of  allowing  all 
persons  to  go  through  every  one  of  our  courts 
when  he  had  once  entered  upon  3  suit.  There 
might  have  been  cases  when  an  appeal  was  bro't 
merely  for  the  sake  of  delay  ;  and  he  supposed 
that  this  section  was  intended  to  meet  such  cases, 
which  blocked  up  our  courts.  He  was  not  op. 
posed  to  the  adoption  of  a  provision  to  prevent 
such  abuses. 

Mr.  STETSON  alluded  to  the  statute,  by  which 
interest  can  be  charged  upon  verdicts  rendered  in 
cases  of  wrongs,  which  had  removed  the  delays 
from  a  numerous  class  of  cases,  to  show  that  there 
was  no  necessity  for  such  a  section  in  the  Consti- 
tution. 

Mr.  STEPHENS  believed  that  the  object  of  this 
section  was  to  prevent  fiivolous  and  vexatious 
writs  of  error.  The  advantages  of  these  appeals 
were  in  a  majority  of  cases,  in  favor  of  the  rich 
man  to  the  injury  of  the  poor  man.  He  was 
therefore  in  favor  of  putting  an  end  to  such  as 
were  merely  frivolous,  and  intended  to  embarrass 
a  man  who  was  not  able  to  pursue  justice  to  the 
last  extent. 

Mr.  HOFFMAN  opposed  the  adoption  of  the 
section  as  a  cruel  and  unjust  provision. 

Mr.  SIMMONS  continued  the  debate  on  the 
same  side. 

Mr.  CROOKER  regarded  the  whole  proposition 
so  absurd  that  he  was  surprised  that  it  had  receiv- 
ed so  much  discussion.  He  hoped  the  question 
would  now  be  taken.  For  the  last  three  days  we 
had  only  been  "  running  emptyings,"  in  finishing 
up  the  latter  part  of  this  article. 

Mr.  BERGEN  moved  the  previous  question.— 
Seconded. 

The  amendment  of  Mr.  JORDAN  was  lost. 

Mr.  WHITE  demanded  the  ayes  and  noes,  and 
the  section  was  rejected,  as  follows: — 


AYES— Messrs.  Allen,  Burr,  F.  F.  Backus,  Kemble,  Ste- 
phens, Worden— 6. 
NAYS— 76. 

Mr.  BASCOM  proposed  the  following  as  an  ad- 
ditional section: 

^  The  clerks  of  the  several  counties  of  this  State  shall  be 
clerks  of  the  supreme  court  with  such  powers  and  duties 
as  shall  be  prescribed  by  law. 

Mr.  B.  apprehended  that  without  the  adoption 
of  that  section  or  something  like,  we  should  run 
the  hazard  of  having  clerks,  with  great  salaries. 
Perhaps  it  was  proper  that  the  city  of  New  York 
should  have  a  separate  clerk,  from  the  fact  of  its 
great  amount  of  business. 

Mr.  STETSON  remarked  that  it  was  not  cer- 
tain that  terms  of  the  court  would  be  held  in  every 
county.  It  was  not  right  there  he  thought  to  al- 
low a  particular  locality  alone  to  have  the  choice 
in  allAkis  matter. 

Mr^HATFIELD  thought  as  the  business  of 
the  clerk  would  be  merely  to  make  up  the  cal- 
endar, that  the  question  as  to  the  locality  of  a 
clerk,  was  of  but  very  little  importance.  This 
proposition  he  favored,  as  it  would  dispense  with 
these  clerks,  which  were  not  required,  and  save 
money  to  the  State. 

Mr.  LOOMIS  said  that  the  proposition  met  his 
entire  approbation.  He  would  go  a  little  further 
and  provide  a  clerk  for  the  court  of  appeals,  for 
if  this  clerk  business  was  to  be  gone  into  at  all,  it 
was  better  to  do  it  up  at  once.  It  was  better  per- 
haps that  the  whole  should  be  left  to  legislation, 
but  as  it  was  brought  in  here  he  should  vote  for 
it.  Mr.  S.  then  proposed  to  add  the  following  to 
the  amendment  of  Mr.  BASCOM  ;  which  he  said 
would  enable  all  persons  by  an  application  to  this 
office  to  ascertain  all  the  judicial  business  of  the 
State. 

"  There  shall  be  appointed  a  clerk  of  the  court  of  ap- 
peals, who  shall  be  ex-officio  clerk  of  the  supreme  court, 
and  to  keep  his  office  at  the  seat  of  government.  He  shall 
be  appointed  by  the  Governor,  by  and  with  the  advice  and 
consent  of  the  Senate— shall  hold  his  office  for  three  years, 
and  be  paid  a  compensation  to  be  fixed  by  law  and  paid 
out  of  the  public  treasury." 

Mr.  SIMMONS  enquired  if  it  was  not  best  to 
add  some  provision  requiring  bail  Trom  these 
clerks. 

Mr.  LOOMIS  said  the  legislature  could  do  that 
without  any  constitutional  provision. 

Mr.  CROOKER  urged  that  the  matter  had  bet- 
ter go  to  the  judiciary  committee  and  be  brought 
into  shape. 

Mr.  PATTERSON  offered  an  amendment  so  as 
to  make  this  clerk  elective  by  the  people. 

Mr.  CROOKER  moved  the  reference  of  the 
subject  to  the  judiciary  committee. 

Mr.  BASCOM  urged  that  the  question  could  be 
settled  without  such  a  reference.  Mr.  B.  further 
urged  his  proposition,  and  deprecated  the  amend- 
ments that  had  been  offered  to  it. 

Mr.  JORDAN  hoped  all  this  matter  would  be 
.eft  where  it  belonged — to  the  legislature. 

Mr.  RICHMOND  believed  Mr.  BASCOM  to  be 
right  in  his  proposition,  and  went  on  to  sustain  it. 

Mr.  HAWLEY  then  called  for  the  previous 
question,  and  there  was  a  second,  and  the  main 
question  ordered. 

The  question  was  then  taken  on  Mr.  CROOK. - 
ER'S  motion  to  refer,  and  it  was  rejected. 


822 


AYES— Messrs.  Archer,  Ayrault,  F.  F.  Backus,  H. 
Backus,  Bouck,  Brayton,  Burr,  Cambreleng,  R.  Camp, 
bell,  jr.,  Crocker,  Dubois,  Flanders,  Gebhard,  Hart,  Haw- 
ley,  Hotchkiss,  A.  Huntington,  Hutchinson,  Hyde,  Jor- 
dan,  Kingslev,  Mann,  Morris,  Munro,  Patterson, Penniman, 
Porter,  President,  Rhoades,  Richmond,  Russell,  St.  John, 
Sears,  Shaw,  Sheldon,  Shepard,  Smith,  W.  H.  Spencer, 
Stanton,  Stephens,  Stetson,  Strong,  Taggart,  W.Taylor, 
Townsend,  Vache,  Van  Schoonhoven,  Waterbury,  White, 
•Willard,  Witbeck,  Worden>  A.Wright,  W.B.Wright, 
Yawger,  Young,  Youngs— 56. 

NOES— Messrs.  Bascom,  Bergen,  Cuddeback,  Dana, 
Gardner,  Greene,  Hunt,  Hunter,  E  Huntington,  Kemble, 
Looinis,  McNeil,  Nellis,  Nicholas,  Riker,  Simmon,  Tall- 
madge— 17. 

The  amendment  of  Mr.  LOOMIS  as  thus  amend- 
ed, was  also  adopted,  ayes  51,  noes  18. 

AYES— Messrs.  Bouck.  Burr.Cambreleng,  R.  Campbell, 
jr.  Crocker,  Flanders,  Gebhard,  Hart,  Hawley,  Hotchkiss, 
Hunt,  A.  Huntington,  Hutchinson,  Hyde,  Jordan,  Kemble, 
Kingsley,  Loomis,  Mann,  Morris,  Munro.Nellis,  Patterson, 
Penniman.  Perkins,  Porter,  Richmond,  Russell,  St.  John, 
Sears,  Shaw,  Sheldon,  Shepard,  Smith,  W.  H^pencer, 
Stanton,  S.ephens,  Stetson,  Stow,  Strong,  l^Taylor, 
Townsend,  Vache,  Van  Schoonhoven,  Waterbury, White, 
Willard,  Witbeck,  Worden,  Yawger,  Young,  Youngs— 51. 

NOES— Messsrs,  Allen,  F.  F.  Backus,  H.  Backus,  Bas- 
com,  Bergen,  Dana,  Dubois,  Gardner,  Greene,  Hunter, 
McNeil,  Murphy,  Nicholas,  President,  Riker,  Simmons, 
A.  Wright.  W,  B.  Wright— IS. 

The  question  then  being  on  this  amendment 
thus  amended  to  Mr.  BASCOM'S  proposition. 

Mr.  HAWLEY  asked  for  a  division  of  the 
question  so  as  to  be  first  on  Mr.  BASCOM'S  propo- 
sition. The  question  was  so  taken,  and  it  was 
adopted — ayes  66,  nays  7. 

The  question  was  then  taken  on  the  residue  of 
the  section — that  in  relation  to  the  court  of  ap- 
appeals,  and  it  was  adopted — ayes  58,  nays  22. 

The  whole  section  was  then  adopted. 

Mr.  WHITE  proposed  the  following  as  an  ad- 
ditional section  : — 

§  —  .  The  Legislature  shall  provide,  by  law,  that  all  mo- 
neys in  the  custody  or  under  the  control  of  any  of  the 
courts  of  law  or  equity,  for  the  bene.nt  of  suitors  and  oth- 
ers, at  the  time  this  Constitution  shall  take  eftect,  and  all 
moneys  which  shall  thereafter  bnpaid  into  any  of  the 
courts  of  record  of  the  State,  lor  the  benefit  of  suitors  and 
others,  shall  be  paid  into  the  Treasury  of  the  State,  at 
such  times  and  under  such  regulations,  and  be  held  by  the 
State  for  the  benefit  of  such  suitors  and  others,  at,  such 
rates  of  interest  as  the  Legislature  may  prescribe. 

Mr.  SIMMONS  opposed  the  amendment.  In 
the  present  case  a  man  has  a  right  to  sue  for  his 
money  or  to  demand  security,  which  he  would 
not  have  if  this  amendment  was  adopted. 

Mr.  LOOMIS  concurred  with  Mr.  SIMMONS 
in  the  view  just  taken. 

The  debate  was  further  continued  by  Messrs. 
RHOADES,  ALLEN,  TOWNSEND,  STETSON,  SIM- 
MONS and  VAN  SCHOONHOVEN. 

Mr.  STRONG  moved  to  adjourn.   Agreed  to. 

AFTERNOON  SESSION. 

Only  37  members  present  at  a  quarter  4  o'clock. 

Mr.  MURPHY  (who  had  the  floor)  rose  to  op- 
pose the  adoption  of  the  section  proposed  by  Mr. 
WHITE,  relative  to  the  monies  now  under  the 
control  of  the  clerks,  registers,  &c.  of  the  courts 
of  this  State.  He  insisted  that  if  all  this  money 
was  to  be  paid  into  the  State  Treasury  it  would 
cause  a  great  deal  of  trouble  over  the  State,  and 
would  not  benefit  the  suitors  in  the  least.  The 
returns  showed  clearly  where,  and  how  these 
$3,000,000  were  invested.  He  did  not  mean  to 
say  that  this  mode  of  keeping  the  public  funds 
was  the  best  that  could  possibly  be  devised;  but 


he  did  know  that  they  had  always  been  sacredly 
preserved,  and  not  a  single  dollar  had  been  lost. 
This  money  was  at  the  present  time  all  under  the 
supervision  of  the  law,  or  of  the  court  directly; 
and  the  only  question  was  shall  we  transfer  it  to 
the  State  Treasury.  The  owners  of  this  money, 
or  parties,  have  received  interest  on  the  invest- 
ments. If  they  were  to  transfer  the  money  to 
the  State  Treasury,  they  must  have  a  separate 
department  to  keep  an  account  of  it,  and  to  dis- 
burse it  when  called  for.  Now  we  have  had 
some  experience  in  regard  to  the  State's  mode  of 
investing  money,  in  the  case  of  the  loaning  of 
the  U.  S.  deposite  fund.  He  could  not  tell  how 
it  was  with  some  other  counties;  but  he  did  know 
of  the  monies  loaned  in  Kings  county,  one-half 
of  it  had  been  lost.  To  send  these  funds  then  to 
the  State  would  not  be  wise;  and  he  much  pre- 
ferred that  the  whole  matter  should  be  left  to 
the  legislature. 

Mr.  TALLMADGE  said  this  subject  was  one  of 
vast  moment.  He  had  no  doubt,  when  the  matter 
was  lully  investigated,  that  the  amount  of  lunds 
under  the  control  of  the  court  of  chancery  would 
be  found  to  be  much  more  than  the  public  had 
any  idea  of.  Young  and  rising  members  of  the 
profession  might  leel  that  it  was  discreet  to  speak 
cautiously  on  this  subject,  in  order  to  stand  well 
with  the  court.  But  we  could  have  no  such  mo- 
tive to  influence  us.  The  gentleman  from  Rens- 
selaer  this  morning  seemed  to  think  that  any  en- 
quiries into  this  matter  implied  a  censure  on  the 
chancellor.  Mr.  T.  felt  that  in  this  he  was  act- 
ing in  accordance  with  the  feeling  and  wish  of 
the  chancellor  himself.  Mr.  T.  had  no  arrow  to 
throw  at  him.  But  many  of  his  officers  held  this 
money.  Some  of  them  might  not  hold  itdiscreei- 
ly,  and  it  might  be  lost.  Mr.  T.  had  reason  to 
know  that  the  chancellor  himself  desired  to  be 
relieved  of  this  responsibility.  The  chancellor 
stated  the  amount  at  about  $'3,000,000 — but  did 
not  include  the  amount  under  the  control  of  the 
district  couits.  There  were  receivers  also  who 
had  millions  of  money  in  their  hands.  He  urged 
that  it  was  but  just  to  the  chancellor,  to  his  suc- 
cessors, and  to  the  fund  itself,  that  in  changing  the 
jurisdiction  ot  the  court  that  we  should  see  how 
this  thing  stood.  It  would  be  a  sinful  omission 
not  to  do'this.  He  spoke  of  the  library  that  had 
been  purchased  out  of  the  unclaimed  funds  in 
chancery.  This  library  had  cost  from  $50,000  to 
£100,000— and  some  $5,000  a  year  was  spent  in 
keeping  it  up.  Some  $20,000  of  this  money  was 
lost  in  "the  Franklin  Bank.  In  saying  this,  and  in 
urging  that  these  moneys  should  be  transferred  to 
the  state  treasury,  he  intended  no  imputation  on 
the  chancellor — but  he  urged  that  this  account 
should  be  stated,  that  the  successors  of  the*  chan- 
cellor, and  the  chancellor  himself,  should  know 
how  the  matter  stood,  and  that  persons  interested 
might  have  the  security  of  the  state  for  the  safe 
keeping  of  the  moneys. 

Mr.  TAGGART  said  that  he  would  move  to 
amend,  by  striking  out  Mr.  WHITE'S  proposition 
on  this  subject,  and  insert  this  : 

§  1.  The  legislature  shall  provide  by  law  for  transferring 
and  depositing  all  funds  and  securities  now  held,  or  which 
may  hereafter  be  held,  by  or  under  the  control  of  the  court 
of  chancery,  or  of  any  other  court  or  courts,  or  of  any 
register,  assistant  register,  clerk  or  receiver  of  any  court, 
for  sale  keeping,  investment  or  disbursement  in  the  state 
treasury,  or  with  a  county  treasurer,  as  follows,  viz,:— 


823 


1.  All  funds  secured  by  real  estate  in  any  county,  with 
all  securities  relating  lo  the  same,  with  the  county  treas- 
urer of  the  county  in  which  such  real  estate  is  situated. 

•2.  All  funds  belonging  to  infants,  widows  or  lunatics,  not 
secured  by  real  estate,  with  the  county  treasurer  ol  the 
county  in  which  the  infant,  widow  or  lunatic,  entitled  to 
the  same  resides,  if  a  resident  of  this  state. 

:t.  All  luuds  arising  from  the  sale  of  real  estate,  hereaf- 
ter to  be  made,  directed  to  be  invested  by  order  of  any 
court,  and  all  securities  taken  upon  the  sale  of  real  estate 
hereafter  made,  by  order  or  direction  of  any  court,  with 
the  county  treasurer  of  the  county  in  which  such  real  es- 
tate shall  be  situated. 

4.  All  other  funds  and  securities  mentioned  in  this  sec- 
tion in  the  state  treasury,  or  with  a  county  treasurer,  as 
shall  be  provided  by  law. 

Mr.  MURPHY,  in  reply  to  Mr.  TALLMADGE, 
and  the  intimation  that  some  of  the  younger  mem- 
bers of  the  profession  might  be  influenced  here  by 
fear  of  the  chancellor,  remarked  that  he  had  be- 
gun to  look  upon  the  court  ot  chancery  as  defunct, 
and  that  whatever  foundation  there  might  have 
been  otherwise  for  the  insinuation,  it  could  scarce- 
ly be  applicable  now.  He  went  on  to  say  that  he 
did  not  pretend  that  there  should  not  be  a  change 
in  the  mode  of  investing  the  money,  but  he  insist- 
ed that  it  was  a  pioper  subject  for  legislation — 
and  that  it  should  not  be  so  tied  up  in  the  Consti- 
tution that  a  change  could  not  be  made  in  the 
place  of  deposit,  if  the  convenience  of  suitors  or 
other  circumstances  might  demand  it.  But  the 
greai  objection  to  transferring  these  moneys  to  the 
state  treasury  was  that  we  should  have  to  organize 
a  separate  department  tomanage  these  funds.  Mr. 
M.  repelled  the  intimation  that  we  had  not  before 
us  in  the  returns  a  full  statement  of  the  amount  of 
these  funds — :;nd  that  the  amounts  in  the  hands  of 
receivers  shouU:  have  been  included.  They  gave 
good  securi'},  ai  .1  no  complaint  had  been  made 
I  hat  a  dollar  was  ever  lost  by  them.  The  funds 
in  their  hands  were  paid  over  with  convenience 
and  satisfaction  to  parties,  and  they  should  riot  be 
compelled  to  come  to  Albany  tor  ihern. 

Mr.  VAN  SCHOONHOVEN  said  that  whilst 
these  funds  were  well  and  safely  kept  there  was 
no  necessity  for  taking  them  from  the  custody  of 
the  Chancellor  ;  nor  of  making  a  grave  constitu- 
tional provision,  which  places  them  in  the  hands 
of  the  Treasurer  of  this  State;  or  of  the  County 
Trfitsurrr.s.  If  any  change  was  to  be  made,  he 
preferred  Mr.  TAGGART'S  proposition  ;  but  he 
much  rather  wished  they  should  stay  where  they 
are,  subject  to  the  control  of  the  Legislature, 

Mr.  BERGEN  believed  this  to  be  entirely  a 
matter  of  legislation.  He  thought  that  the  Con- 
vention also  thought  so.  And  it  should  not  to  oc- 
cupy their  time  for  a  single  moment;  and  so  he 
would  move  the  previous  question. 

This  was  seconded  54  to  21. 

Mr.  TAGGART'S  amendment  was  then  nega- 
tived without  a  division. 

Mr.  WHITE'S  amendment  was  then  rejected, 
23. 

AYES— Messrs.  Allen,  Ayrault,  Bouck,  Burr,  Cornell, 

Hotchkiw,  Kemble,  Kmgsley,  Mann,  Miller, 

l'..n*h..  Salisbury,  Santord,  S.jars,  Shaw,  Sheldon,  Stephens, 

Tallinadge,  W.  Taylor,  Towusend,Wattjibury,  White— -23. 

NOES— Messrs.  Jligei,  Archer,  F.  F-  Backus,  H.  Bdck- 
us,  Baker,  Bascom,  Bergen,  Bowdish,  Brayton.  Bull,  Cam- 
breleng,  11.  Campbell,  jr.,  Chatfield,  Clark,  Cook,  Dana, 
Flanders,  Gebhard,  Greene.  Harris,  Hart,  Hawley,  Hoff- 
man, Hunter,  E.  Huntin^ton,  Hyd<.«,  Jordan,  Kernaa,  Kirk- 
land,  Loornis,  Munio,  Murphy,  Ntllis,  Nicholas,  letter, 
son,  Penniman,  President,  llhoades,  Kiker,  St.  John,  She. 
j.:ml,  Simmons,  E.  Spencer,  W.  H.  Sptncer,  Stauton,  Stet- 
son, Strong,  J.J.  Taylor,  Van  Schoonhoven,  Ward,  Wil- 


lard,  Witbeck,  Wood,  Worden,  A.  Wright,  W.  Ji.  Wright, 
Yawger,  Young,  Youngs— 59. 

Mr.  TOWNSEND  rrioved  a  reconsideration  of 
the  vote  on  Mr.  TAGGART'S  motion. 

The  17th  section  of  the  report  was  then  read  as 
follows : — 

§  17.  No  judicial  officer,  except  justices  of  the  peace, 
shall  receive  any  fees  or  perquisites  of  office. 

Mr.  LOOMIS  moved  to  add  as  follows:— 

After  "  receive,"  insert  "  to  his  own  use."  AdJ  at  the 
end,  "  Provision  shall  be  made  bylaw  requiring  parties 
prosecuting  suits  or  proceedings  before  judicial  officers, 
other  than  justices  of  the  peace,  to  contribute  towards  the 
expense  of  administering  justice  by  the  payment  of  a  spe- 
cific sum  in  each  suit,  or  of  a  rate  per  centage  on  the 
amount  claimed,  or  value  of  the  matter  to  be  adjudicated 
in  each  case,  to  some  officer  for  the  use  of  the  public  treas- 
ury, before  a  hearing  or  a  trial  shall  be  heard  thereon. 

iMr,  LOOMIS  urged  that  it  was  but  just  that 
parties  litigant  should  contribute  towards  the 
payment  of  the  officers  employed  in  their  service, 
and  to  a  greater  amount  than  others.  It  was  also 
desirable  to  have  something  in  the  constitution 
imposing  the  duties  of  the  legislature  to  make 
some  such  provision.  It  was  the  more  necessary 
also  as  \ve  proposed  to  pay  these  judges  a  salary, 
who  had  heretofore  received  large  amounts  from 
suitors  by  way  of  fees.  Without  prescribing  any 
detail  to  the  legislature,  he  would  state  how  he 
should  desire  to  see  such  a  provision  carried  out. 
He  would  compel  a  party  on  commencing  a  suit, 
to  pay  a  certain  fee.  Before  trial,  he  should  also 
pay  a  certain  sum,  say  $5— and  out  of  the  sums 
thus  paid  he  would  require  the  clerk  to  pay  the 
jurors  by  the  day,  and  the  other  officers,  if  suffi- 
cient, taking  their  vouchers,  the  calendar  to  be 
handed  over  to  the  county  treasurer  at  the  close 
of  the  term,  and  the  clerk  to  account  to  him  for 
the  amount  received.  If  the  party  appealed  to 
the  supreme  court  in  bane,  he  would  compel  him 
to  pay  again,  before  his  cause  should  be  entered 
on  the  calendar.  And  on  his  appealing  to  .the 
court  of  last  resort,  he  would  require  another  sum 
— increasing  the  amount  at  each  stage  with  a 
view  in  some  degree  to  repress  litigation.  And 
under  a  simple  form  of  pleading,  such  as  he  hop- 
ed to  see  adopted,  the  cost  of  litigation  might  be 
reduced  very  much,  even  under  such  a  tax  upon 
it.  As  the  public  provided  tribunals  for  the  set- 
tlement of  controversies,  it  was  eminently  proper 
that  those  who  had  occasion  to  use  them  should 
contribute  more  towards  the  expense  of  maintain 
ing  them  than  peaceable  citizens  who  never  did 
use  them.  He  regarded  it  also  as  essential  to 
make  such  provision  mandatory  on  the  legisla- 
ture, in  order  that  the  people,  when  they  come  to 
calculate  the  expense  of  this  system  to  them,  in 
the  shape  of  salaries,  might  also  see  that  suitors 
would  be  compelled  to  contribute  a  fair  share  of 
the  expense. 

Mr.  NICHOLAS  asked  for  a  division  of  the 
question.  He  was  in  favor  of  the  first  proposi- 
tion, intended  to  prevent  judges  from  receiving 
for  their  own  use  any  fees  or  perquisites  of  office. 
This  was  right,  as  judges  were  to  be  paid  by  sa- 
laries for  their  services.  As  to  the  second  branch, 
which  proposed  to  tax  parties  to  suits  to  defray 
the  expenses  of  the  courts,  it  might  be  right  and 
proper  to  impose  such  a  tax,  but  he  would  have 
it  done  by  the  legislature.  It  was  certainly  a  fit 
subject  for  legislation,  but  not  a  matter  to  be  pro- 


824 


vided  for  in  the  constitution.  The  Convention 
had  been  legislating  for  several  days,  and  would 
have  hereafter  to  confine  its  action  to  its  appro- 
priate sphere,  or  many  subjects  requiring  atten- 
tion could  not  be  disposed  of  during  the  short  time 
thatjwe  should  continue  in  session. 

Mr.  SIMMONS  said  he  agreed  to  this  section 
sweeping  away  fees,  in  committee,  but  reflection 
had  led  him  to  doubt  about  it.  He  agreed  that 
judges  should  be  paid  by  salary  and  not  by  little 
fees  for  judicial  duties  proper — but  he  doubted 
charging  on  the  public  the  payment  of  their  ser- 
vices at  the  chambers,  in  order  to  get  it  back 
again  in  some  other  shape.  Besides  to  strip  these 
officers  of  fees  for  chamber  duties,  he  was  afraid 
would  make  them  less  accessible,  less  competent 
and  less  careful  in  the  discharge  of  their  duties. 
He  disliked  the  idea  of  making  the  salary  of  the 
surrogate  a  county  charge,  instead  of  requiring 
those  who  needed  his  services  to  contribute  to  his 
compensation  as  now. 

Mr.  CHATFIELD  was  understood  to  take  the 
ground  that  the  proposition  was  altogether  too 
sweeping  and  indiscriminate — and  from  a  diffi- 
culty inherent  in  the  subject,  which  would  re- 
quire the  detail  of  a  statute  book,  if  we  went  into 
it  at  all.  There  were  suits  that  it  was  not  worth 
five  dollars  to  litigate,  which  had  to  come  before 
our  courts;  and  others  which  were  worth* more. 
All  this  was  matter  for  legislation,  and  not  pro- 
per in  a  constitution.  Besides,  parties  now  paid 
a  great  variety  of  fees,  which  come  out  of  their 
pockets,  and  though  burthensome  to  them,  the 
public  would  not  be  saddled  with  them.  But  a 
tariff  on  suits  to  pay  jurors  and  constables  and 
other  county  charges  was  another  matter. 

Mr  J.  J.TAYLOR  conceded  that  there  were 
many  wrongs  growing  out  of  the  system  of  fees 
and  perquisites,  and  he  wished  to  see  them  abo- 
lished, so  far  as  they  could  be  with  propriety. — 
But  we  should  require  in  some  counties,  othei 
officers  than  the  county  judge,  to  do  chambe$  du- 
ties, and  these  certainly  should  not  be  paid  by 
salary.  Referres  also,  auditors  and  others  might 
for  the  time  being  be  regarded  as  judicial  officers. 
He  would,  not  pay  them  a  salary.  To  prevent 
this  difficulty  he  proposed  to  amend  by  striking 
out  the  exception  of  justices  of  the  peace  and  in- 
serting, "  for  whose  compensation  provision  shall 
be  made  by  salary." 

Mr.  LOOMIS  replied  to  the  objection  that  this 
was  legislation.  The  original  section  was  legis- 
lation, providing  that  the  judges  should  be  com- 
pensated by  salary  only.  He  desired  to  carry 
with  this  before  the  people  the  assurance  that 
they  were  not  to  be  taxed  for  all  these  salaries. 
He  objected  to  Mr.  TAYLOR'S  amendment  as  con- 
templating a  class  of  officers  in  counties  who 
were  to  do  certain  duties  and  receive  fees — say- 
ing that  we  had  provided  a  county  judge  to  do 
those  duties,  and  paid  him  a  salary,  the  conse- 
quence would  be,  if  the  amendment  was  adopted, 
that  the  county  judge  would  do  none  of  this  busi- 
ness, but  turn  parties  over  to  the  officers  who 
could  take  fees. 

The  Convention  agreed  to  insert  "  to  his  own 
use." 

Mr.  SIMMONS  did  not  see  how  a  rule  of  the 
kind  proposed  by  Mr.  LOOMIS  could  be  adopted 
without  laying  it  down  either  too  broad  or  too 


narrow.  He  was  in  favor  of  such  a  rule,  and  had 
proposed  it  in  the  judiciary  committee,  but  he 
now  regarded  it  as  the  safest  plan  to  leave  it  to  the 
legislature. 

Mr.  JORDAN  urged  that  the  judiciary  was  one 
of  the  departments  of  the  government  as  much  as 
the  executive  or  legislative — and  he  could  see  no 
reason  founded  in  justice,  why  a  person  should 
pay  a  fee  before  approaching  the  one  any  more 
than  the  others,  to  aid  in  paying  the  salaries  of 
public  officers.  For  one,  he  was  opposed  to  ma- 
king the  profession  to  which  he  belonged  tax  ga- 
therers for  the  purpose  of  raising  a  fund  to  pay 
judicial  officers — and  bearing  the  odium  of  the 
suspicion  which  would  attach  to  them  that  they 
pocketed  these  fees,  would  in  many  instances 
come  out  of  the  pockets  of  the  profession.  The 
approaches  to  justice  had  better  be  left  free,  as 
were  those  to  other  departments  of  the  govern- 
ment. 

Mr.  STETSON  urged  that  taxation  should  be 
equal — that  the  great  mass  of  the  people  who  con- 
tributed to  support  your  higher  courts,  and  yet 
never  used  them — that  the  mass  had  also  to  pay 
fees  to  sustain  justices'  courts  and  county  courts — 
and  that  it  would  be  unequal  to  make  them  pay  a 
double  tax  to  sustain  the  two  classes  of  courts, 
while  those  who  used  them  paid  only  their  share 
of  the  general  taxation  to  support  them.  He 
trusted  this  system  or  some  other  would  be  adopt- 
ed to  equalize  these  burthens. 

Mr.  W.  TAYLOR  took  similar  ground  in  favor 
of  the  proposition  of  Mr.  LOOMIS. 

Mr.  ST.  JOHN  moved  the  previous  question, 
but  withdrew  it  at  the  request  of 

Mr.  SIMMONS,  who  desired  to  make  an  explan- 
ation, and  agreed  to  renew  the  motion.  He  be- 
lieved that  the  provision  should  be  to  prohibit 
judges  from  receiving  fees;  the  duties  of  other  of. 
ficers  weie  in  many  cases  merely  ministerial,  and 
fees  were  properly  imposed  upon  those  who  made 
use  of  them.  But  all  the  people  were  benefited 
by  the  judges.  A  man  was  hanged,  for  instance, 
not  for  his  own  benefit,  bu^  tor  the  benefit  of  all 
the  community  and  those  who  should  feel  disposed 
to  follow  his  example.  Mr.  S.  went  on  to  illus- 
trate his  position,  and  sat  down  forgetting  to  re- 
new the  previous  question. 

Mr.  STRONG,  however,  got  the  floor  and  mov- 
ed the  previous  question,  but  he  too  withdrew  at 
the  request  of 

Mr.  JORDAN,  who  regarded  this  as  a  new  and 
important  question  which  ought  not  to  be  deci- 
ded without  deliberation.  He  could  riot  agree  to 
what  gentlemen  appeared  to  suppose,  that  going 
to  law  was  a  luxury  for  which  we  ought  to  be 
taxed.  People  did  not  go  to  law  merely  from  a 
Litigious  spirit,  and  this  could  not  be  urged  as  a 
reason  for  their  being  taxed  when  they  entered 
into  a  lawsuit.  The  cases  were  very  rare  where 
persons  went  to  law  when  they  were  not  driven 
into  such  a  necessity. 

Mr.  STRONG  again  renewed  his  call  for  the 
previous  question,  declining  to  withdraw  it  again 
and  there  was  a  second,  and 

The  last  clause  of  Mr.  LOOMIS'S  amendment 
was  negath  ed  as  follows : 

AYES— Messrs.  Angel,  H.  Backus,  Bascom,  Bergen, 
Bowdish,  Brayton,  Cmldeback,  Dubois,  Greene,  Hart, 
Uutchinson,  Kernan,  Kingsley,  Loomis,  Mann,  McNiel, 
Morris,  Munro,  Nellis,  St.  John,  Salisbury,  Sanford,  Stan- 


825 


ton,  Stetson,  W.  Taylor,  Townsend.Waterbury,  Willard, 
Wood.  Yawger,  Young,  Youngs— 32. 

NOES— Messrs.  Allen,  Ayrault.  F  F.  Backus,  Baker, 
Bouck,  Bull,  Burr,  R.  Campbell,  jr..  Chatfield,  Cook,  Cor- 
nell Crocker,  Dana,  Dodd,  Flanders.  Forsyth,  Gardner, 
Gebhard.  Harris,  Hawley,  Hoffman,  Hotchkiss.  E.  Hunt- 
ineton,  Jord.in,  Maxwell,  Miller,  Nicholas,  O'Conor,  Par- 
ish, Patterson,  Porter,  President,  Rhoades,  Hiker,  Russell, 
Shaw,  Sheldon.  Shepard,  Simmons,  W.  s.  Spencer,  Strong, 
Swackhamer,  Taggart,  Talimadge,  J.  J.  Taylor,  Vache, 
Van  Schoonhoven,  Ward,  Worden,  A.  Wright,  W.  B. 
Wright— 61. 

The  17th  section  was  then  agreed  to,  as  amend- 
ed, without  a  division. 

Mr.  O'CONOR,  from  the  judiciary  committee, 
reported  several  sections,  in  pursuance  of  the  ref- 
erence made  to  that  committee  on  Saturday  last, 
of  the  propositions  presented  by  Mr.  LOOMIS,  for 
transferring  the  business  in  arrears  in  the  several 
courts  to  the  newly  organized  tribunals. 

These  sections  were  ordered  to  be  printed. 

Mr.  JORDAN  laid  on  the  table  a  motion  to  re- 
consider the  vote  on  the  section  making  clerks  of 
counties  clerks  of  the  supreme  court. 

The  Convention  then  adjourned  to  8  1-2  o'clock 
to-morrow  morning. 


WEDNESDAY,  (84th  day)  Sept.  9. 
Prayer  by  the  Rev.  Mr.  VAN  RENSSELAER. 
Mr  "COOK  rose  and  made  the  following  expla- 
nation of  what  appeared  in  the  "  Albany  Evening 
Journal"  of  yesterday : 

Mr.  C.  said  he  was  reported  in  an  evening  pa- 
per as  having  yesterday  made  the  following  re- 
mark upon  this  floor  :— "  The  village  of  Saratoga 
had  a  police  justice  and  it  would  be  unfair  to 
make  the  counry  pay  for  the  regulation  of  the 
morals  of  su-:n  a  place  as  that." 

Residing  in  an  adjoining  village,  also  a  water- 
ing place,  he  was  unwilling  to  be  recorded  as 
having  made  an  unkind,  if  not  an  unjust  remark 
in  relation  to  that  village.  He  would  also  say 
that  the  necessity  of  a  police  justice  for  that  vil- 
lage existed  only  from  the  large  number  of  stran- 
gers visiting  it  during  the  summer  months. 

The  necessity  of  making  any  correction  in  this 
matter  arose  not  from  the  reporter  having  given 
what  he  (Mr.  C.)  did  not  say,  but  from  the  fac 
he  did  not  catch  the  whole  of  his  remark.  Wha 
he  did  say  was  this : — 

"  The  village  of  Saratoga  Springs  had  a  police 
justice  who  was  paid  by  the  town  ;  it  was  a  place 
of  great  resort  during"  the  summer  months,  am 
from  that  fact  a  large  amount  of  petty  crimina 
business  was  of  necessity  done  before  that  magis- 
trate ;  and  it  would  be  unfair  Co  make  the  count) 
of  Saratoga  pay  for  the  regulation  of  the  morals  o 
so  large  a  watering  place  as  that." 

Mr.  HOTCHKISS  presented  a  petition  from 
citizens  of  Warren  co.,  in  favor  of  the  establish 
iiHMit  of  free  schools.  Referred. 

Mr.  BRUCE,  the  petition  of  citizens  of  Madi 
son  co.  in  relation  to  the  unfinished  public  works 
Referred. 

The  Convention  then  took  up  the  unfinishec 
business  relating  to  the  Reports  on 

THE  JUDICIARY. 

Mr.  SALISBURY  said  perhaps  some  gentle 
men  thought  this  was  not  a  bad  idea.  He  di< 
not  know  himself  but  that  he  might  be  in  favo 
of  creating  a  few  wiorejudges  "of the  same  sort.3 
We  would  be  willing  to  get  up  a  pretty  respecta 


le  army,  and  then  would  have  them  all  marched 
iff  to  Texas.  We  had  already  given  two  addi- 
ional  judges  to  each  county,  and  it  appeared  to 
lim  if  they  should  die  (here  would  be  but  few 
mourners,  as  it  would  decrease  the  burthens  of  the 
eople. 

iVJr.  J.  J.  TAYLOR  thought  it  rather  doubtful 
whether  such  provision  should  be  passed. 

Mr.  HAWLEY  moved  to  strike  out  the  last 
clause  of  the  section,  the  words  "  powers  in 
ipecial  cases." 

Mr.  LOOMIS  said  that  his  amendment  was  an 
mportant  one,  and  it  or  something  closely  re- 
sembling it,  ought  to  be  adopted.  He  certainly 
should  oppose  the  motion  to  strike  out.  He  had 
not  attempted  during  the  progress  of  this  debate 
o  embarrass  for  a  single  moment,  the  passage  of 
;he  judiciary  article  ;  he  had  steadily  adhered  to 
ts  principles  throughout.  He  thought  it  was  not 
asking  too  much  to  have  this  little  provision  in 
serted,  which  gives  the  legislature  discretion  to 
appoint  an  additional  officer  in  the  large  counties 
when  it  becomes  necessary  to  do  so.  He  did  not 
aropose  that  this  officer  should  have  the  power  to 
;ry  issues. 

Mr.  J.  J.  TAYLOR  said  that  this  person  would, 
after  all,  be  a  judicial  officer,  and  he  wished  to 
inow  how  it  was  proposed  that  he  should  be  paid? 
Mr.  LOOMIS  said  that  as  his  fees  were  to  be 
paid  into  the  county  treasury,  he  might  be  allow- 
ed a  moderate  compensation  out  of  that  treasury 
Mr.  SIMMONS  said  that  the  substantial  part  of 
this  ought  to  be  adopted.  We  must  give  the  leg- 
islature a  little  elbow  room.  The  office  of  sur-- 
rogate  would  by  and  by  be  one  of  the  most  impor 
tant  in  the  State. 

Mr.  HOFFMAN  was  in  favor  of  the  proposi- 
tion of  Mr.  LOOMIS.  It  would  be  found  necessary 
for  the  convenience  of  local  business,  such  as 
granting  landlord's  warrants,  attachments  for  ab- 
sconding debtors,  &c.,  that  such  a  officer  should 
be  at  hand,  without  compelling  the  applicant  to 
travel  over  the  whole  extent  of  a  large  county. — 
Without  some  provision  of  the  kind  now  propos- 
ed, it  would  be  necessary  to  confer  such  powers 
upon  fifty  or  sixty  justices  of  the  peace  or  supreme 
court  commissioners. 

The  motion  cf  Mr  HAWLEY  was  negatived. 
Mr.  RUSSELL  offered  the  following  as  a  sub- 
stitute for  the  section  under  consideration: 

^ — .  The  legislature  may  authorize  the  election  of  an 
associate  county  judge  iu  each  county,  who  shall  discharge 
the  duties  of  the  surrogate  and  first  county  judge  in  case 
of  vacancy  of  such  officer,  or  of  inability  to  the  incumbent* 
to  discharge  the  duties  thereof,  and  who  may  be  authoris- 
ed to  discharge  such  special  duties  out  of  court  as  shall  be 
prescribed  by  law. 

Mr.  HOFFMAN  said  this  amendment,  if  pass- 
ed,  would  give   the   new  officer  nothing  to  do, 
when  the  judgo  first  appointed  was  able  to  per 
form  all  the  duties  devolved  upon  him.  Here  was 
an  absolute  necessity  for  the  appointment  of  these 
additional  officers,  and  to  let  it  be  known  that  it 
was  distinctly  presented   to  the  Convention  who 
ther  they  would  allow  these  Commissioners  to  be 
appointed  or  not,   he  would  call  for  the  ayes  and 
noes.     They  were  ordered. 

Mr.  RUSSELL  said  since  the  Convention  had 
refused  to  allow  the  Legislature  to  establish  coun- 
ty courts  whenever  petitioned  for,  to  be  paid  for 
at  the  couptie.s  expense,  he  supposed  they  would 

78 


826 


not  agree  to  the  appointment  of  these  extra  com- 
missioners, and  he  had  offered  his  substitute  with 
a  view  to  make  the  proposition  less  objectionable 

Mr.  CHATFIELD  moved  to  amend  the  sec- 
tion proposed  by  Mr.  LOOMIS  by  restricting  the 
number  that  might  be  appointed  to  two  in  each 
county.  Lost,  33  to  33. 

Mr.  MANN  said  that  gentlemen  seemed  deter- 
mined in  every  possible  way  to  increase  the  num- 
ber of  judges.  We  were  first  told  that  32  woulc 
be  able  to  do  up  all  the  business  of  the  state. — 
Next  that  it  was  necessary  to  have  county  courts 
and  county  judges.  Now  there  was  to  be  another 
batch  of  them  created.  We  have  too  many  al- 
ready, and  he  should  vote  against  every  proposi- 
tion to  increase  their  number. 

Mr.  SIMMONS  could  not  be  contented  wit! 
arguments  of  the  kind  used  by  the  gentleman 
from  New-York.  Here  was  a  clear  case  of  omis- 
sion,which  ought  to  be  provided  for  beyond  doubt, 
and  he  hoped  the  Convention  would  assent  to  it. 
he  did  not  like  the  proposition  of  Mr.  RUSSELL. 
A  Lieutenant1  Governor  he  was  in  favor  of;  but  a 
Lieutenant  Judge,  who  was  to  wait  until  the  first 
judge  died  or  was  incapable,  he  could  not  think 
necessary. 

Mr.  KIRKLAND  agreed  to  the  necessity  for  the 
appointment  of  some  such  officer  as  was  provided 
for  in  the  latter  part  of  the  section  proposed  by 
Mr.  LOOMIS.  He  regarded  the  discretionary  pow- 
er proposed  to  be  conferred  upon  the  Legislature 
as  very  necessary,  and  he  had  no  fear  that  any 
Legislature  would  ever  abuse  it. 
,  ivJr.  BASCOM  said  there  was  now  to  be  one 
county  judge  in  every  county,  and  two  in  some, 
besides  a  surrogate  and  a  district  attorney,  and  he 
could  see  no  necessity  for  the  appointment  of  an 
additional  officer.  The  duties  now  proposed  to 
be  devolved  upon  these  new  officers  might  be 
given  to  either  of  the  officers  named. 

Mr.  WATERBURY  described  the  offices  that 
had  already  been  contemplated  by  the  Convention, 
and  the  compensation  that  must  necessarily  be  paid 
to  them;  he  was  tremendously  astonished  lhat 
these  constant  efforts  should  be  made  to  increase 
this  army  of  judges — these  public  officers — that, 
like  leeches,  latien  on  the  iile  blood  of  the  people 
through  a  hateful  tax. 

Mr.  A.  WRIGHT  asked  that  the  vote  rejecting 
Mr.  CHATFIELD'S  amendment  should  be  recon- 
sidered. Agreed  lo. 

The  question  recurred  on  adding  the  words — 
«'  not  to  exceed  two  in  any  county.'' 

Mr.  STRONG  called  fur  the  ayes  and  nays.-— 
They  were  ordered. 

M'r.  J.  J.  TAYLOR  said  that  if  the  proposition 
did  not  contemplate  the  creation  of  new  officers, 
if  was  necessary  to  put  in  this  limit  to  two. 

Mr.  LOOMIS  said  he  would  accept  Mr.  CHAT- 
YIELD'S  amendment. 

Mr.  SALISBURY  said  there  should  be  a  gene- 
ral and  not  a  special  provision  to  supply  all  va- 
cancies that  may  occur  in  offices. 

Mr.  PATTERSON  moved  to  amend  the  propo. 
sition  by  adding  the  words,  "  the  election  ot,"  at 
the  end  ot  the  1st  line,  after  the  word  "  lor." 

Mr.  BURR  said  that  he  could  not  bring  himself 
to  vote  for  a  proposition  which  created  any  new 
olficeis,  after  the  array  that  had  been  created  al- 
ready. 


Mr.  VAN  SCHOONHOVEN  insisted  that  there 
should  be  a  more  extensive  provision  for  supplying 
all  vacancies;  and  he  wished  the  amendment 
should  be  so  modified. 

Mr.  PATTERSON'S  amendment  was  then 
adopted. 

Mr.  RUSSELL  withdrew  his  substitute. 

Mr.  HAWLEY  asked  what  special  duties  were 
to  be  conferred  on  these  new  officers,  which  were 
not  possessed  and  exercised  at  present,  by  suno- 
gatesand  other  officers. 

Mr.  LOOMIS  said  that  it  was  intended  to  make- 
provisiun    for    cases — contingencies    lhat    n 
arise. 

Mr,  HAWLEY  said  lhat  then  this  proposiiion 
was  what  he  supposed,  the  creation  of  a  new  of- 
fice, with  new  powers  and  duties,  and  to  this  he 
was  opposed. 

Mr.  VAN  SCHOONHOVEN  was  of  the  same 
opinion.  He  was  decidedly  opposed  to  the  un- 
limited authority,  which  this  section  would  give 
to  the  legislature  to  create  offices,  and  pay  them. 
He  did  not  see  that  there  was  any  or  could  be  any 
emergency  that  could  ever  arise,  that  would  ren- 
der this  necessary. 

Mr.  LOOMIS  was  very  anxious  that  this  propo- 
sition should  pass ;  the  officers  contemplated  in 
it  were  very  necessary  in  many  cases ;  in  small 
ejectments  for  instance ;  and  the  expense  would 
not  be  increased.  Their  compensation  might  be 
very  small,  and  would  be  all  raised  by  the  fees 
and  perquisites  of  office. 

Mr.  DANFORTH  wished  to  know  whether  the 
"  inability"  described  in  this  section,  as  the  con- 
tingency on  which  these  appointments  were  to 
depend,  was  to  be  deemed  a  mental  or  physical 
inability,  or  one  arising  out  of  a  pressure  of  busi- 
ness. The  contingency  ought  to  be  more  defi- 
nitely described.  We  already  had  too  many  ju- 
dicial officers. 

Mr.  LOOMIS  said  that  by  and  by  he  should 
move  to  amend  the  proposition  so  as  to  remove  the 
objections  raised  by  the  gentleman  from  Jefferson, 
(Mr.  DANFORTH.) 

Mr.  SIMMONS  was  surprised  that  there  was 
not  a  general  sense  of  appreciation  of  some  such 
provision  to  provide  officers  to  do  the  business 
here  contemplated,  in  the  respective  counties. — 
The  thirty-six  judges  were  held  sufficient  to  do 
the  judicial  business,  but  the  judiciary  committee 
had  never  represented  that  they  were  sufficient  to 
do  all  the  local  business. 

Mr.  STETSON  urged  the  adoption  of  this  pro- 
position. The  wants  of  the  country  required  it. 
He  regretted  that  there  should  be  any  opposition 
to  this  proposition.  He  had  often  been  obliged  to 
travel  thirty  or  forty  miles  to  have  a  small  matter 
of  business  transacted,  which  would  not  take  the 
officer  more  than  half  an  hour  to  attend  to,  and 
yet  which  it  was  very  necessary  should  be  trans- 
acted. This  new  officer  was  very  necessary,  and 
those  who  turned  a  deaf  ear  to  this  necessity  were 
willing  to  inflict  a  greater  inconvenience  upon  the 
people,  even  than  they  had  ever  felt  before.  Un- 
ier  the  old  law  there  were  three  officers  who 
might  perform  this  local  business,  while  there  is 
now  provided  but  a  single  one.  He  had  no  other 
motive  in  advocating  this  section,  than  to  afford 
accommodation  to  the  people  for  the  transaction 
f  their  local  business. 


827 


Mr.  RICHMOND  thought  gentlemen  were  at 
Dotting  their  eyes  open  to  the  necessity  of 
^ local  officers.  Gentlemen  had  heretofore 
stoutly  refused  to  allow  that  there  Was  a  necessity 
for  these  "  ornaments"  to  be  stuck  up  about  the 
county.  Give. us  a  good  strong  superior  court, 
said  they,  and  that  will  be  sufficient  to  do  all  our 
local  business.  Yet  they  had  gone  on  and  made 
other  county  judges;  and  not  yet  satisfied,  they 
throw  in  a  proposition  to  elect  two  more  of  these 
common  pleas  judges  to  be  called  "  officers."  He 
believed  there  was  a  necessity  for  these  local  offi- 
'>nt  he  would  not  smuggle  them  into  the  con- 
stilution  in  such  a  manner  that  the  people  would 
be  misled  with  regard  to  the  courts  which  we  are 
!<>  give  them.  He  could  not  vote  for  this  propo- 
sition under  the  present  circumstances,  because 
he  did  not  believe  the  present  system  could  be  so 
patched  up  as  to  render  it  acceptable  to  the  peo- 
ple. The  supreme  court  must  be  cut  down  to 
twelve  or  fifteen  judges  in  the  first  place,  and 
then  the  inferior  courts  might  be  organized  with 
reference  to  this  diminution  of  judicial  force. 

Mr.  BERGEN  said  that  this  trifling  proposition 
had  already  been  discussed  enough.  He  moved 
the  previous  question. 

Several  members  urged  him  to  withdraw  it. — 
He  did  so. 

Mr.  CHATFIELD  moved  to  strike  out  the  last 
clause,  and  insert.  "  who  shall  possess  the  pow- 
ers»and  discharge  the  duties  of  a  justice  of  the  su- 
preme court,  or  a  judge  at  chambers." 
•  Mr.  ANGEL  said  allusion  had  been  made  to  a 
matter  which  5iad  been  dragged  into  this  debate  a 
few  days  ago  by  the  gentleman  from  Cattaraugus, 
(Mr.  CROOK.  ER,)  who  recited  language  which  he 
said  had  been  used  by  two  side  judges  in  a  locali- 
ty which  "  the  gentleman  from  Allegany"  could 
fix — thereby  creating  the  impression  that  such  a 
scene  had  occurred  in  the  county  of  Allegany  at 
recent  day.  Now  he  should  be  inexcusable 
if  he  allowed  such  an  injurious  reflection  to  ope- 
rate to  the  disadvantage  of  the  very  respectable 
judges  of  that  county.  He  would  not  deny  that 
some  such  scene  was  said  to  have  occurred,  but  it 
was  mere'}'  a  "  tradition"  of  something  which,  if 
it  occurred  at  all,  occurred  in  the  early  history 
and  settlement  of  that  county — when  good  judges 
were  not  so  easily  to  be  had  as  at  present.  The 
gentleman  from  Cattaraugus  knew  the  judges  to 
•i  the  language. was  attributed,  and  he  knew 
Unit  they  had  left  respectable  families  who  would 
read  these  reminiscences  with  great  pain.  The 
gentleman  knew  that  one  of  these  judges  came 
Vermont  in  poverty,  and  by  his  industry  ob- 
tained a  competency.  The  other  rose  so  high  in 
the  estimation  of  the  district  around  him,  as  to  ob- 
tain a  seat  in  the  state  senate,  and  the  gentleman 
from  us  voted  for  him  at  that  election. 

Thai  Headed   faithfully    to  his   duties 

through  his  entire  term.  Mr.  A.  next  alluded  to 
the  ungenerous  remark  of  the  gentleman  from 
Dutchess,  (Mr.  TALLMAUGE,)  on  a  subsequent 
occasion,  who  intimated  that  the  judges  of  that 
county  were  under  the  influence  of  King  Alcohol. 
Mr.  JORDAN  objected  to  any  and  all  proposi- 
tions that  came  here  without  having  had  the  con- 
sideration of  a  committee.  He  moved  the  follow- 
lowing  a,s  a  substitute  for  the  whole  section  : 
§— .  The  legislature  may  provide  for  the  election o 


county  commissioners,  not  exceeding  two  in  any  county, 
with  powers  to  perform  the  duties  of  the  justice  of  the  su- 
preme court  or  county  judge  at  chambers,  and  to  discharge 
the  duties  of  a  county  judge  and  surrogate,  in  case  o(  the 
absence  or  inability  of  such  judge  or  surrogate  and  in  ca- 
ses of  a  vacancy  in  said  office. 

Mr.  CHATFIELD  withdrew  his  proposition, 
leaving  Mr.  JORDAN'S  as  the  pending  amendment. 

Mr.  TOWNSEND  moved  the  following  as  an 
amendment  of  the  substitute: 

Alter  "  may,"  in  the  first  line,  insert  "  confer  upon  jus- 
tices of  the  peace  special  judicial  powers,  to  be  exercised 
in  the  absence  or  inability  of  the  county  judge  or  surro- 
gate." 

Mr.  BERGEN  moved  the  previous  question > 
and  it  was  seconded— 33  to  1 — no  quorum.  The 
vote  was  again  taken,  and  stood  56  to  11.  The 
main  question  was  ordered  to  be  now  put,  and  on 
the  demand  of  Mr.  TOWNSEND,  the  yeas  and  nays 
were  taken  on  his  amendment,  and  were — yeas 
13,  nays  71. 

Mr.  JORDAN'S  proposition  was  next  in  order, 
and  there  were  ayes  44,  noes  46. 

Mr.  LOOM  IS'  proposition  was  then  adopted, 
ayes  51,  noes  38. 

Mr.  FORSYTH  moved  to  reconsider  this  vote. 

Laid  on  the  table. 

Mr.  RICHMOND  then  moved  a  reconsideration 
of  the  vote  taken  last  night,  upon  the  proposition 
of  Mr.  LOOMIS,  in  relation  to  the  taxation  of  suit- 
ors at  courts  of  law.  Without  some  such  propo- 
sition as  this,  he  (Mr.  R.)  really  believed  that  the 
people  would  not  adopt  this  judiciary  system. 

Mr.  BASCOM  hoped  the  proposition  would  be 
adopted  upon  a  reconsideration,  and  that  it  would 
not  be  thrown  out  merely  because  it  appeared  to 
be  a  legislative  provision.  There  was  much 
force  in  the  argument  that  the  poor  man,  if  he 
had  any  property,  would  be  taxed  for  a  great 
amount  of  the  litigation  in  the  higher  courts. 

Mr.  CHATFIELD  contended  that  it  was  wrong 
to  call  the  justices'  courts  the  courts  of  the  poor 
He  also  went  on  to  oppose  legislation  in  a  consti- 
tution. 

Mr.  RICHMOND  replied  and  contended  that 
the  gentleman  had  steadily  voted  to  put  matter  in 
the  constitution  which  was  legitimately  the  busi- 
ness of  legislation  ;  but  whenever  it  was  desired 
to  put  any  thing  in  the  constitution  to  protect  the 
poor  from  being  ridden  down,  the  gentleman 
from  Otsego  exclaimed,  "Oh,  that's  legislation.' 
He  hoped  some  provision  would  be  made  by 
which  those  litigous  people  who  were  so  fond  of 
lawing,  should  be  made  to  pay  some  proportionate 
part  of  the  expenses  of  our  courts. 

Mr.  W.  TAYLOR  urged  a  reconsideration, 

Mr.  RHOADES  opposed  the  reconsideration, 
because  this  was  the  business  of  legislation. 

Mr.  KIRKLAND  approved  the  proposition  to 
Lish  these  local  tribunals,  and  he  thought 
those  who  used  them  should  pay  for  them.  He 
hoped  the  reconsideration  would  be  agreed  to, 
because  lie  believed  it  involved  a  principle  which 
should  be  made  to  appear  upon  the  face  of  the 
co, imitation.  The  Convention  had  provided  a 
large  judicial  force,  whose  salaries  were  to  be 
pan!  out  of  the  county  and  state  treasuries,  and 
taking  away  the  principle  of  fees  arid  perquisites 
It  appeared"  to  him  that  the  people  should  be  re- 
lieved from  the  payment  of  the  entire  amount  of 
the  large  sums  which  must  be  paid  for  the  sala- 
ries of  judges.  The  mode  proposed,  by  which 


828 


those  who  resorted  to  the  courts  for  their  own 
individual  purpose,  should  be  made  to  bear  an 
equitable  proportion  of  the  expenses  of  those 
courts,  he  regarded  as  a  proper  one  to  afford  that 
relief.  The  legislature  had  certainly  the  power 
to  make  this  provision,  but  we  had  no  security 
that  they  would  ever  exercise  that  power.  They 
had  never  done  so  heretofore,  and  he  was  desi- 
rous that  this  matter  should  be  settled  by  a  fixed 
constitutional  provision. 

Mr.  SIMMONS  thought  we  were  foolishly 
bothering  our  heads  about  such  propositions  as 
this  ;  better  leave  it  all  to  the  legislature. 

Mr.  LOOMIS  said  that  this  proposition  would 
secure  to  the  Convention  itself  a  great  deal  oi 
favor. 

Mr.  MURPHY  hoped  the  Convention  would 
adhere  to  the  vote  of  yesterday. 

The  previous  question  was  then  moved  and 
seconded. 

The  main  question  was  then  ordered. 

The  yeas  and  nays  were  ordered  on  the  call  of 
Mr.  RICHMOND.  They  resulted,  AYES  49,  NOES 
43. 

So  the  question  was  reconsidered. 

Mr.  BASCOM  moved  to  add  the  words,  "or 
sum  recorded,"  after  the  word  "claims." 

Mr.  PATTERSON  said  this  amendment  would 
fix  the  payment  on  the  suitor,  and  not  on  the 
debtor,  by  whose  refusal  to  pay  this  just  debt  had 
rendered  the  suit  necessary. 

Mr.  R.  CAMPBELL,  jr.  moved  the  previous 
question.  /It  was  ordered,  46  to  28. 

The  main  question  was  then  ordered  and  put 
on  the  amendment  of  Mr.  BASCOM. 

The  amendment  was  rejected. 

Mr.  RICHMOND  called  for  the  ayes  and  noes 
on  the  adoption  of  the  section. 

They  were  ordered  and  resulted  :  AYES  41 
NAYS  53. 

So  the  proposition  of  JVlr.  LOOMIS  was  again 
negatived. 

Mr.  O'CONOR  desired  to  offer  a  section  to 
provide  that  "the  legislature  may  authorize  the 
judgment,  decrees  or  decisions  of  any  local  infe- 
rior court  established  in  a  city,  to  be  removed  for 
review  directly  into  the  court  of  appeals."  He 
said  if  a  party  litigant  in  the  superior  court  of 
New  York — where  the  judges  of  high  character 
presided — desired  to  obtain  the  decision  of  the 
court  of  lasc  resort,  the  case  had  to  be  carried 
through  an  intermediate  court,  where  two  or 
three  years  might  be  spent  in  obtaining  the  judg- 
ment of  the  supreme  court  judges — a  local  court 
in  fact — before  the  cases  could  be  carried  to  the 
court  of  last  resort.  To  obviate  this  he  had  of- 
fered his  amendment. 

Mr.  WATERBURY  said,  very  well,  then,  if 
you  give  this  privilege  to  the  big  superior  courts 
of  New  York,  you  must  also  give  it  to  the  poor 
one-horse-cab  courts  of  the  counties.  [Laugh- 
ter.] 

Mr.  VAN  SCHOONHOVEN  said  there  was  a 
good  deal  of  propriety  in  all  this. 

Mr.  JORDAN  suggested  the  addition  of  the 
words  "of  original  civil  jurisdiction"  to  meet  the 
objections.  He  thought  the  local  courts  of  the 
city  of  New  York  would  stand  in  the  position  of 
the  supreme  court  in  the  country  and  that  they 


should  have  the  right  to  appeal  from  the  court  in 
aanc  to  the  court  of  appeals. 

Mr.  O'CONOR  accepted  Mr.  JORDAN'S  amend- 
ment. 

Mr.  MURPHY  suggested  an  amendment  to  add 
"concurrently  with  the  supreme  court"  illustrat- 
ing his  amendment  by  reference  to  an  inferior 
court  in  Brooklyn. 

Mr.  O'CONOR  had  no  objection  to  including 
county  courts,  if  it  would  not  endanger  the  original 
proposition.  He  did  not  believe*that  the  legisla- 
ture would  allow  a  direct  appeal  from  petty 
courts,  like  the  Marine  Court  of  New  York,  or 
iVlunicipal  Court  of  Brooklyn  ;  he  wished  to 
leave  that  a  discretion  with  the  legislature. 

Mr.  HARRIS  thought  that  some  such  provis- 
ion as  this  was  necessary  and  just  to  the  city  of 
New  York. 

Mr.  HOFFMAN  asked  of  Mr.  O'Conor,  what 
proportion  of  the  causes  that  now  go  into  the  su- 
preme court  on  appeals,  from  the  local  courts  of 
the  city  of  New  York,  stop  in  that  court. 

Mr.  O'CONOR  said  he  could  only  judge  from 
his  own  private  practice.  All,  or  nearly  all  his 
causes  that  went  from  the  inferior  court,  went 
into  the  court  of  errors — the  supreme  court  being 
a  sort  of  stepping  stone  to  the  court  of  errors. — 
Probably  it  was  not  so  with  the  common  pleas — 
most  of  the  judgments  carried  up  from  that  court 
to  the  supreme  court  stopped  there. 

Mr.  SIMMONS  hoped  the  proposition  would 
be  adopted. 

Mr.  VAN  SCHOONHOVEN  moved  to  strike 
out  the  words  "established  in  a  city." 

Mr.  CROOKER  said  that  if  Mr.  V.  S.  thought 
that  by  this  mode  he  was  accommodating  the 
country,  he  was  very  much  mistaken.  The 
country  did  not  want  to  be  dragged  all  the  way 
here  to  Albany  to  try  their  little  petty  appeals. 

Mr.  VAN  SCHOONHOVEN  said  there  was  no 
harm  in  giving  them  this  power. 

Mr.  WATERBURY  wanted  no  distinction  be- 
tween city  and  county  courts. 

Mr.  MURRIS  replied  that  if  this  new  supreme 
court  was  adequate  to  all  the  business  of  the  city, 
the  city  would  need  no  local  courts,  and  then 
they  would  be  on  a  footing  with  the  country,  as 
there  would  be  but  one  appeal.  But  as  the  Con- 
vention had  refused  to  New-York  any  additional 
local  force  in  the  supreme  court,  they  would  be 
driven  into  the  local  courts  first,  and  to  get  to  the 
court  of  appeals  must  take  two  strides,  when  the 
country  would  take  but  one,  as  the  force  provided 
for  them  would  do  all  their  business. 

Mr.  VAN  SCHOONHOVEN  varied  his  amend- 
ment so  as  to  add  the  words  "  and  from  county 
courts" — and 

The  amendment  was  lost,  without  a  division. 
The   section   proposed   by    Air.  O'CoivoR  was 
then  adopted,  ayes  49,  noes  21. 

Mr.  TOWNSEND  oflered  the  following  : 

{. Remedies  existing    at  the  period  when  a  contract  is 

made,  shall  not  be  disturbed  or  impaired  by  subsequent 
legislation. 

Mr.  T.  stated  that  this  was  a  proposition  in- 
volving a  direct  principle,  proper  for  constitu- 
tional consideration,  and  not  obnoxious'to  the  re- 
marks now  so  frequently  heard,  that  the  legisla- 
ture have- always  ample  power  to  control  the  sub- 
ject matter  sought  to  be  introduced  into  the  Con- 


829 


stitution.  When,  in  1842  he  gave  an  affirmative 
vote  upon  the  act  extending  in  the  sum  of  $150, 
the  amount  of  furniture,  tools,  &c.,  which  previ- 
ously had  been  exempt  from  execution  for  debt, 
a  after  having  made  an  effort  to  declare  in 
the  law  itself  that  the  effect  of  that  act  was  pro- 
spective. Not  succeeding  in  this,  he  with  other 
friends  of  the  principle  of  keeping  the  tranquili- 
ty  of  the  domestic  fireside  in  a  degree  at  least  sa- 
cred from  the  inroads  of  the  sheriff— took  occa- 
sion to  say  that  he  hoped  the  law  would  be  con- 
strued to  have  no  retrospective  bearing  by  the 
courts.  He  believed  that  such,  at  least  in  a  qual- 
ified sense,  had  been  the  case  in  an  opinion  given 
by  the  supreme  court  of  this  state.  To  place, 
however,  this  matter  beyond  the  fluctuations  of 
legal  opinions,  he  sought  to  introduce  the  prin- 
ciple as  a  part  of  the  constitutional  law,  not  wil- 
ling to  content  himself  with  what  existed  in  the 
Constitution  of  the  United  States,  which  should 
have  secured  us  against  retrospective  state  legisla- 
tion, and  he  hoped  that  the  Convention  would 
go  with  him  in  all  these  efforts.  The  gen- 
tleman from  Essex,  (Mr.  SIMMONS,)  some 
time  since,  in  alluding  to  the  blocking  up  of  the 
state  courts  with  litigation,  stated  rightly,  that 
where  you  have  no  remedy — your  system  of  laws 
proved'but  an  abortion — a  failure.  Practically 
where  the  legislature  assumed  to  diminish  the  re- 
medies existing  at  the  formation  of  a  contract, 
they  contributed  towards  the  ^extinguishment  of 
legal  redress,  and  left  the  business  classes,  upon 
their  own  resources  as  to  their  sagacity  in  select- 
ing that  class  or'  debtors  for  their  ledg'ers,  whose 
correct  principles  of  honor  and  pecuniary  fidelity 
were  so  thorougly  engrafted  upon  their  nature,  as 
to  place  them  entirely  beyond  the  effects  of  the 
co-ercive  of  laws.  ,  As  far  as  Mr.  T.  understood 
the  commercial  feeling  of  the  metropolis,  which 
he  had  the  honor  to,  in  part,  represent — it  was 
strongly  tending  to  a  belief  that,  owing  to  the  ex- 
perience of  the  fluctuating  character  of  our  laws, 
national  and  state,  affecting  the  enforcement  of 
contracts — which  the  last  few  years  has  develop- 
ed, it  was  rapidly  coming  to  the  opinion  that  com- 
pulsory laws  for  the  collection  of  ordinary  debts 
— where  no  fraud  or  criminality  can  be  substan- 
tiated in  their  inception — furnished  no  adequate 
return  for  the  expense  and  attention  required  to 
invoke  their  assistance.  The  propos  tion  to  his 
mind  was  undeniable,  that  some  certain  remedy 
and  benefit  should  be  secured,  in  order  to  justify 
a  system  that  called  a  man  for  hours  or  days  from 
his  ordinary  means  of  livelihood,  to  sit  in  the  ju- 
ry box  and  listen  to  the  details  of  transactions  in- 
to which  the  suitor  entered  of  his  own  free  will, 
and  now  from  a  defect  of  his  own  judgment,  or 
misplaced  confidence,  sought  to  draw  upon  his 
neighbor's  time,  and  the  state  treasury,  to  restore 
to  him  compensation  for  the  effects  of  the  erro- 
.  neous  principles  in  relation  to  credit,  upon  which 
as  contrasted  perhaps  with  his  innocent  friends 
upon  the  jury  panel,  he  conducted  his  business. 
As  a  consequence,  when  your  system  of  remedies 
•is  admitted  in  practice  as  a  failure,  many  of  the 
leading  minds  among  the  commercial  classes,  are 
resolving  to  conduct  their  system  of  credits  for 
the  future,  without  reference  to  any  redress  which 
your  laws  profess  to  afford.  The  400  millions 
and  upward  of  indebtedness5swept  from  existence 


by  tne  U.  S.  Bankrupt  act  of '41 ,  has  no  doubt  pow- 
erfully contributed  to  the  formation  of  this  resolu- 
tion, on  the  part  of  those  who  have  begun  to  con- 
sider character  as  the  best  guarantee  of  fidelity. 
He  might  detain  the  Convention  in  illustrating 
the  many  instances  where  the  unscrupulous  might 
surround  themselves  with  all  the  luxuries  of  life 
under  the  sanction  of  trusts  and  other  subtle 
evasions,  whilst  those  to  whom  they  are  indebted 
were  compelled  to  deny  themselves  even  the 
comforts  of  life.  When  views  somewhat  in 
analogy  to  what  he  was  here  touching  upon,  were 
advanced  a  few  days  since  upon  this  floor,  the 
gentleman  from  Herkimer,  (Mr.  HOFFMAN,)  who 
he  regretted  not  to  see  at  the  moment  in  his  seat, 
spoke  of  them  as  only  found  in  barbarous  and  un- 
civilized centuries.  So  far  as  Mr.  T.  could  speak 
of  the  practice  of  the  oldest  government  of  the 
Asiatic  world,  and  which  he  understood  was 
pointedly  alluded  to,  he  could  say  that  on  the 
contrary  the  merchant,  who  on  one  day  might  be 
seen  in  the  streets  of  Canton,  with  the  retinue  and 
pomp  of  a  prince,  would  perhaps  ere  another 
month  had  passed,  be  seen  in  chains  hurried  by 
the  officers  of  government,  to  the  cold  countries, 
the  most  -extreme,  and,  by  contrast  with  the 
milder  climate  of  the  south,  the  most  inhospital 
portion  of  China,  that  bordering  on  Siberia,  for 
no  greater  offence  than  what  is  known  with  us  as 
ordinary  insolvency.  He  trusted  that  the  Con- 
vention would  not  give  the  great  principle  of 
right  which  in  substance  he  had  attempted  to  as- 
sert in  the  section  proposed,  the  go-by,  but  would 
meet  the  question  now,  and  not  wait  until  it 
should  come  up  perhaps  more  strictly  in  order 
under  the  report  of  some  other  committee,  which 
our  time  would  never  permit  us  to  reach  for  the 
purposes  of  substantial  action. 

Mr.  SIMMONS  said  that  the  principle  of  the 
amendment  was  worthy  of  consideration,  though 
it  was  susceptible  of  improvement  in  point  of 
form.  The  U.  S.  Constitution  attempted  to  es- 
tablish the  entire  principle  under  a  prohibition 
of  ex-post  facto  laws,  and  laws  impairing  the  obli- 
gation of  contracts.  But  this  had  never  answer- 
ed the  end  intended,  on  account  of  the  construc- 
tion put  upon  it  by  the  courts ;  and  the  states 
were  left  to  pass  re-trospective  laws,  if  they  did 
not  violate  contracts.  The  courts  have  broken  in 
upon  many  cases  of  retrospective  legislation  which 
we  have  had ;  but  it  would  be  as  well  to  have 
some  such  thing  as  this  in  the  Constitution, though 
it  more  properly  came  in  under  the  head  of  pri- 
vate rights. 

Mr.  TOWNSEND  :  I  am  aware  of  that,  but  I 
am  afraid  we  never  shall  reach  that  article. 

Mr.  SIMMONS  :  Oh  !  but  it  will  never  dp  to 
go  home  without  considering  that  report,  if  it  is 
only  for  half  an  hour. 

Mr.  TALLMADGE  said  that  the  committee  of 
which  he  was  chairman,  did  propose  a  section 
going  the  full  length  against  all  these  retrospec- 
tive laws,  but  the  Convention  voted  it  down. 

Mr.  LOOMIS  said  the  word  "  remedies"  in  the 
section  had  a  broader  meaning  than  probably  the 
mover  intended.  It  covered  the  proceedings  and 
practice  of  the  courts,  and  to  pass  this  section  in 
the  shape  in  which  it  was  drawn,  would  fix  and 
fasten  on  us  these  forms  of  practice. 


830 


Mr.  TOWNSEND  proposed  to  say  "  Statutory 
Laws. 

Mr.  LOOMIS  said  that  that  would  not  help  the 
matter  ;  there  was  a  very  wide  distinction  be- 
tween remedy  and  right ;  and  it  would  be  the 
right  of  imprudence,  if  we  intended  ever  to  see  a 
change  in  the  present  forms  of  legal  practice  to 
adopt  the  amendment  in  the  shape  in  which  it 
now  was. 

Mr.  SIMMONS  said  the  gentleman  confounded 
two  things  together  that  were  widely  different. — 
He  was  surprised  that  he  should  do  it  after  hav- 
ing had  an  opportunity  to  read  his  speech. — 
[Laughter.]  Blackstone  also  made  the  distinc- 
tion, and  that  made  him  marvel  more.  A  rem- 
edy was  a  right.  The  legal  proceeding  was  an- 
other thing.  He  agreed  that  the  section  was  am- 
biguous— but  he  was  against  abolishing  remedies, 
in  the  sense  in  which  he  understood  the  word. — 
The  supreme  court  of  the  U.  S.  he  found  were 
travelling  back,  and  had  recently  decided  unani- 
mously that  a  state  legislature  had  no  power  to 
do  ft.  And  they  had  applied  this  doctrine  to  Il- 
linois, Ohio,  and  other  half  civilized  states. 

Mr.  LOOMIS  said  that  he  really  had  not  read 
the  gentleman's  speech  ;  but  he  had  seen  it  in  the 
*'  Atlas"  and  laid  it  aside  to  be  read  at  leisure, 
and  he  expected  a  treat.  But  he  well  knew  the 
event  that  had  made  the  distinction  which  he 
took  between  remedies  and  rights,  and  the  dis- 
tinction was  as  he  said,  and  understood. 

JVJr.  JORDAN  said  the  courts  had  decided  that 
the  remedy  might  be  varied,  but  not  so  varied  as 
to  take  away  (he  right.  The  j  roposition  was  thai 
the  remedy  existing  at  the  time  the  contract  was 
made,  shall  not  be  varied — but  it  allowed  that  to 
be  done  prospectively,  as  to  future  contracts.  The 
proposition  was  certainly  a  pi oper  and  harmless 
one — and  ho  regarded  it  as  important  lo  place 
some  such  restrictions  on  the  legislature,  which 
had  shown  a  disposition  materially  to  impair  the 
rights  of  parties  by  varying  the  remedies  retro- 
spectively. He  instanced  several  cases  where  the 
legislature  and  the  courts  had  recognized  a  prin- 
ciple winch  it  carried  out  to  their  extreme  appli- 
ed,ion  would  operate  effectually  to  destroy  right 8. 

JVJr.  BASCOM  remarked  that  frome  contracts  in 
this  country  had  been  in  existence  a  great  while, 
and  it  might  be  well  to  inquire  what  the  existing 
remedies  were,  when  they  were  entered  into.  He 
moved  to  refer  this  section  to  the  committee  on 
land  tenures — saying  ih.it  he  tiusted  the  reference 
would  quicken  the  action  of  that  committee. 
s  Mi.  JORDAN  said  there  could  not  be  a  more 
unsuitable  committee,  and  he  could  not  believe 
the  gentleman  from  Seneca  was  serious  in  propos- 
ing that  reference,  especially  in  the  al>  ence  ol 
the  chairman.  1!  the  gentleman  meant  to  give 
the  sriction  the  go-by,  as  a  thing  unworthy  if  con- 
sideration, he  trusted  others  would  not  coniritAite 
to  put  it  in  that,  position.  We  were  not  all  dt-bt- 
ois  in  this  community,  and  some  ol  us  enteitam. 
ed,  and  he  hoped  to  God  always  would  entertain, 
.1  disposition  to  hold  men  rigidly  to  the  payment 
of  their  debts,  and  to  prevent  the  legislature  :roin 
virtually  taking  away  the  light  of  a  ciedifoi  io 
collect  his  honest  debts,  or  taking  away  three- 
fourths  of  his  debts  by  varying  the  remedy.  He 
had  no  objection  to  a  select  committee,  ai.d  that 
the  gentleman  fromSentcashould  be  chairman  of  it. 


The  Convention  here  look  a  recet-s  till  half  oast 
3  o'clock  P.  M. 

AFTERNOON  SESSION. 

At  the  close  of  the  morning,  Mr.  BASCOM 
moved  to  refer  the  following,  offered  by  Mr. 
TOWNSEND,  to  the  committee  on  rights  and  pnvi. 
leges  : 

§  — .  Remedies  existing  at  the  period  when  a  contract 
is  made,  shall  not  be  disturbed  or  impaired  by  subsequent 
legislation. 

Some  one  said  that  committee,  of  which  Judge 
NELSON  is  Chairman,  had  never  met. 

Mr.  BASCOM  said  thin  might  induce  them  to 
meet  and  report. 

Mr.  TALLMADGE  had  wished  it  referral  to 
his  committee. 

Mr.  BASCOM'S  motion  was  put  and  lost. 

Mr.  STRONG  gave  notice  that  he  should  move 
to  reconsider  the  vote  of  this  morning,  adopting 
Mr.  O'CoNOR's  proposition  to  carry  up  causes 
from  courts  in  cities  to  the  court  of  appeals. 

The  PRESIDENT  communicated  an  invitation 
from  the  officers  of  the  State  Agricultural  Society 
inviting  the  mernbeis  of  the  Convention  to  attend 
their  annual  meeting  at  Auburn. 

Mr.  PATTERSON  moved  to  lay  u  on  the  table. 

Mr.  LOOMIS  demanded  the  ayes  and  noes. 

Mr.  PATTERSON  said  he  would  withdraw  his 
motion  if  there  were  any  objections  to  it.  Nooi,e 
supposed  we  could  adjourn  to  go  to  the  Fair. 

Mr.  STRONG  said  they  would  charge  us  50 
cent?  to  go  in  after  we  got  there.  (Laughter.) 

Mr.  LOOMIS  renewed  the  motion  to  lay  on  the 
table,  and  it  was  agreed  to. 

The  proposition  of  Mr.  TOWNSEND  was,  on 
motion  of  Mr.  O'CowoR,  referred  to  standing  com- 
mittee No.  11 — aves  44,  noes  21. 

Mr.  TOWNSEND  gave  notice  of  a  motion  to 
reconsider  this  vote. 

Mr.  WATERBURY  offered  (he  following  pro- 
position :— "Every  qualified  elector  shall  be  eligi- 
ble to  every  judicial  office."  Mr.  W.  said  that  on 
looking  over  the  statutes,  he  found  that  it  was  ne- 
cessary to  be  a  counsellor  at  law  in  order  to  be  eli- 
gible to  the  office  of  first  judge.  In-some  counties, 
when  a  judge  was  necessary  to  be  appointed,  there 
was  no  timber  to  be  found  to  make  one  out 
of.  He  supposed  it  was  not  necessary  for 
lim  to  talk  about  this  matter  further  than  to 
show  what  the  facts  were  at  present.  He  de- 
manded the  ayes  and  noes  however. 

Mr.  BURR  did  not  think  the  proposition  of  his 
colleague  should  be  laughed  down.  The  object 
of  it  was  to  prevent  the  legislature  from  prescri- 
bing qualifications  like  those  which  had  been  al- 
"uded  to.  He  thought  they  should  be  restrained 
'rom  doing  this. 

Mr.  STRONG :  Will  the  gentleman  accept  of 
a  very  small  amendment — to  except  lawyers  ? 
'  Mr.  O'CONOR  moved  to  strike  out  "  judicial. " 

Mr.   DANFORTH  thought  we  had  better  see 
before  acting  on  this,   whether  we  should  extend 
the  right  of  suffrage  to  women  and  children  and 
colored  people.     He  moved  to  lay  the  section  on  ' 
he  table. 
Mr.  WATERBURY  assented  to  that  course. 

It  was  laid  on  the  table,  ayes  53,  noes  12. 
TRANSFER  OF  BUSINGS. 

The  first  section  of  Mr.  O'CojvoR's  report,  made 


831 


filing,  from  the  judiciary  committee,  upon 
the  suliji-ct.  oftiMiisferring  unfinished  judicial  bu- 
siness to  the  new  courts,  was  read  as  follows  : — 
I)  1  Thelegiilatme,  at  its  first  session  after  the  adoption 
of  this  constitution,  shall  provide  for  the  organization  of 
the  court  of  appeals,  and  lor  transferring  toil  the  business 
pending  in  the  court  lor  the  correction  of  errors;  and  for 
the  allowance  ot  writs  ot  error  and  appeals,  to  the  court 
of  appeals,  from  the  judgments  and  decrees  of  the  present 
court  of  chancery  and  supreme  court,  and  of  the  courts 
th.it  m;,y  be  organized  uir-ier  this  constitution. 

Mr.  CHATFIELD  offered  the  following  sub- 
stitute for  the  entire  report : — 

^  — .  The  legislature  shall,  at  the  session  next  after  the 
adoption  of  this  constitution,  provide  by  law  for  finishing 
the  business  and  suits  which  may  be  pending  in  the  seve- 
ral courts  in  this  article  abolished  when  this  constitution 
shall  take  efi'ect;  and  for  that  purpose  may  provide  at 
what  time  the  justice*  of  the  supreme  court  first  elected 
s!i  til  enter  upon  the  duties  of  their  offices;  but  the  consti- 
tutional term  of  said  justices  shall  be  deemed  to  com- 
mence on  the  first  day  of  January  in  the  year  1848. 

Mr.  CHATFIELD  Said  that  his  object  was  to 
turn  this  matter  all  over  to  the  legislature. 

Mr.  WORDEN  said  that  he  did  not  think  this 
section  was  broad  enough.  Perhaps  a  short  sec- 
tion like  that  might  supersede  all  the  other  sec- 
tions proposed;  but  it  ought  to  go  further  and 
provide  for  continuing  all  the  old  courts  in  ope- 
ration up  to  the  time  (say  a  year)  that  the  mass  of 
business  now  pending  might  be  disposed  of  by  the 
old  courts  and  the  new.  It  was  also  defective  on 
another  point ;  it  did  not  provide  for  transferring 
business  from  the  old  courts  tw  the  new  ones. 

Mr.  LOOMIS  was  also  of  the  same  opinion,  If 
the  legislature  was  to  provide  for  finishing  the 
pending  business,  they  must  employ  some  court 
or  courts — for  they  could  not  institute  a  commis- 
sion to  do  it — and  how  much  more  convenient  to 
continue  these  courts  for  a  certain  period.  The 
expense  of  a  double  force  for  a  short  time,  to  dis- 
poae  of  the  present  accumulation  of  business,  was 
not  to  be  regarded  in  view  of  the  importance  to 
suitors  of  having  their  causes  decided. 

Mr.  CHATFIELD  said  that  nevertheless  he 
believed  that  this  proposition  would  accomplish 
all  that  was  designed,  and  all  the  useful  purposes 
of  this  long  report.  It  gave  the  legislature  full 
and  ample  power  to  make  the  transfer  of  the  un- 
finished business. 

Mr.  WORDEN  asked  Mr.  CHATFIELD  if  there 
should  not  be  some  provision  jnade  for  the  selec- 
tion of  the  judges  of  the  court  of  appeals,  who  are 
to  be  taken  from  those  having  the  shortest  time  to 
serve  ? 

Mr.  CHATFIELD  said  that  as  a  matter  of 
murse  the  legislature  had  that  power;  the  grant- 
ing of  general  powers  to  the  legislature  implied 
the  right  to  arrange  a"nd  put  in  motion  the  whole 
system,  therefore  there  was  no  necessity  for  spe- 
cial provisions.  He  was  opposed  to  making  a 
sjjrcial  commission  to  perform  the  unfinished  bu- 
siness, or  of  keeping  the  old  courts  in  existence 
for  a  year  or  two  longer  for  this  purpose,  leaving 
the  new  courts  comparatively  nothing  to  do.  He 
-desired  to  give  the  legislature  power  to  transfer 
business  and  for  the  doing  up  of  the  old  business. 
If  the  report  of  the  committee  was  adopted,  the 
new  court  of  appeals  would  have  nothing  to  do, 
for  a  year  or  so,  (if  the  old  courts  were  kept  going) 
and  yet  they  would  be  under  pay.  Neither  would 
the  Supreme  Court  have  any  thing  to  do  in  bane 


for  s,ix  months.  He  (Mr.  C.)  was  not  willing  to 
increase  the  expenses  of  the  state. 

Mr.  HOFFMAN  said  that  still  he  thought  there 
would  be  difficulties  which  the  gentleman's  pro- 
position did  not  reach ;  one  difficulty  was  that 
there  were  suits  finished  in  the  old  courts  on 
which  no  execution  had  issued — and  that  without 
a  transfer,  the  legislature  could  not  auth®rize  an 
execution  on  the  record  in  another  court.  And 
unless  provisipn  was  made  for  continuing  the 
function  of  the  old  courts  for  a  short  time  in  re- 
lation to  causes  that  may  have  been  heard  but  not 
decided  the  parties  must  be  heard  again  by  the 
new  court. 

Mr.  CHATFIELD'S  proposition  was  then  put 
and  lost.  Ayes  28,  noes  38. 

Mr.  WORDEN  moved  to  strike  out  all  after  the 
first  section,  and  insert  the' three  other  sections — 
which  he  said  had  been  drawn  up  by.  Mr.  O'CoN- 
OR,  with  a  view  of  condensing  the  remaining  sec- 
tions, and  embracing  every  thing  in  them. 

The  first  section  was  adopted  without  amend- 
ment and  without  debate,  when 

Mr.  WORDEN  sent  up  the  following,  as  a  sub- 
stitute for  the  residue  :  , 

§ —  The  court  of  appeals,  and  the  county  courts  hereby 
established  shall  be  organized,  and  the  judges  thereof 
shall  respectively  enter  upon  the  duties  of  their  offices,  on 
the  first  Monday  of  July,  1347.  The  judges  of  the  court  of 
appeals,  justices  of  the  supreme  court  and  county  judges, 
shall  be  elected  at  such  times  as  may  be  prescribed  by  law, 
but  the  first  election  of  such  judge.;  and  justices,  shall  be 
held  before  the  first  day  of  July,  1S47  ;  and  their  terms  of 
office,  as  limited  by  the  constitution,  shall  be  deemed  to 
commence  on  the  first  day  of  January,  1848. 

^ — .  The  present  supreme  court  and  court  of  chancery, 
and  the  present  officers  of  chancellor  and  justices  of 
the  supreme  court,  shall  continue  under  their  existing  or- 
ganization, until  the  first  Monday  of  July,  1848  The  su- 
preme court  hereby  established  shall  not  be  organized  un- 
til the  last  named  day  ;  but  the  justices  thereof  shall  pcr- 
lorm  such  judicial  duties  as  may  be  prescribed  by  law  iu 
the  present  supreme  court  or  chancery,  prior  to  that  day. 

(; — .  Provision  shall  be  made  bylaw  for  the  transfer  of 
suits  and  proceedings,  from  courts  now  existing,  to  the 
courts  to  be  organized  under  this  constitution,  at  such 
time  or  times  and  in  such  manner  as  may  be  proper,  and  for 
assigning  the  same  to  the  proper  districts. 

Mr.  O'CONOR  suggested  that  the  3  last  sec- 
tions of  the  original  report  ought  to  be  retained. 

Mr.  WORDEN  assented  and  varied  his  motion 
accordingly. 

Mr.  RICHMOND  thought  the  substitute  did  not 
correspond  with  the  sections  proposed  to  be 
striken  out.  If  he  understood  it,  it  kept  up  the 
old  courts  one  year  longer.  . 

Mr.  O'CONOR :  One  year  shorter. 

Mr.  RICHMOND  said  that  was  so  much  the 
better  ;  but  his  objections  were  that  it  kept  up 
two  complete  systems  under  pay  for  a  year.  He 
understood  the  gentleman  from  Essex,  (Mr.  SIM- 
MONS,) the  other  day  to  say  that  in  three  months 
they  would  work  off'  all  their  business.  The 
best  way,  in  his  judgment,  to  dispose  of  the  un- 
finished business  would  be  to  transfer  it  all  over 
at  once  to  the  new  supreme  court;  thirty-two 
new  bright,  fresh  judges  would  soon  have  it  all 
fixed  and  taken  care  of. 

Mr.  SIMMONS  explained  that  the  remark  of 
the  chancellor,  which  he  had  given  a  few  d.iys 
since,  related  to  the  causes  argued  in  his  court, 
which  was  but  a  small  part  of  the  business  pend- 
ing. One  of  the  judges  of  the  supreme  court  had 
informed  him  lately  that  it  would  require  one 


832 


year  to  dispose  of  the  unfinished  business  in  th 
court,  if  there  should  no  more  come  in  ;  and  h 
(Mr.S.)  supposed  the  court  of  chancery  woul 
require  about  as  much  time. 

Mr.  LOOMIS  said  the  proposition  of  the  gen 
tlernan  from  Ontario  was  new  to  him,  though  h 
found  it  printed  here  in  due  form  like  our  othe 
documents.  He  was  the  mover  of  the  origina 
proposition  on  which  the  report  of  the  judiciar 
committee  was  based,  and  that  committee  adopt 
ed  substantially  his  proposition — the  temporar 
chairman  being  left  to  draw  it  up — and  yet,  her 
was  a  new  proposition,  said  to  have  been  draw: 
up  by  the  temporary  chairman,  never  submittei 
to  the  committee,  but  radically  different  from  tha 
which  they  had  adopted.  Mr.  L.  went  on  to  poin 
out  wherein  it  differed  from  the  original  report — 
among  other  things,  saying  that  it  deferred  thi 
organization  of  the  new  supreme  court  from  Jan 
uary,  1848  to  July,  1848.  He  supposed  the  re 
port  agreed  on  by  the  committee,  was  to  be  sus 
tained  by  them  substantially.  For  one,  he  pre 
ferred  the  proposition  of  the  gentleman  from  Ot 
sego  to  this  new  one.  He  had  rather  see  the  nev> 
courts  organized  in  July,  1847,  than  July,  1848 
if  practicable,  and  to  hteve  the  old  courts  go  ou 
of  existence  then.  But  since  this  new  propositior 
had  been  offered,  he  had  a  substitute  to  propose 
which  he  would  make.  Mr.  L.  read  as  follows : 

fj  — .  The  legislature  shall,  at  its  first  session  after  the 
adoption  of  this  constitution,  provide  for  the  transfer  o 
suits  and  proceedings  in  the  courts  hereby  abolished  to  the 
courts  hereby  ordained.  The  legislature  shall  also  pro- 
vide for  the  organization  of  the  supreme  court  before  the 
first  day  of  January,  1848,  and  for  the  hearing  and  decision 
before  the  said  supreme  court  hereby  granted,  of  any  writs 
and  proceedings  pending  in  the  present  supreme  court  and 
in  the  court  of  chancery  in  aid  ot  the  chancellor  and  jus- 
tices of  the  supreme  court. 

The  term  of  office  of  the  justices  of  the  supreme  court 
and  of  the  judges  of  the  court  of  appeals  and  of  county 
judges  and  surrogates,  as  limited  by  this  constitution,  shalJ 
commence  on  the  first  day  of  January,  1848. 

Mr.  WORDEN  said  these  sections  were  drawn 
by  the  gentleman  from  New- York  (Mr.  O'GONOR) 
without  consultation  with  him,  with  a  view  to 
condense  the  three  sections  following  the  first  and 
to  vary  them  so  as  not  to  continue  the  old  courts 
so  long.  The  substitute  provided  that  the  pre- 
sent courts  should  continue  as  they  now  were  un- 
til July,  1848,  and  that  meanwhile  the  new  court 
should  be  organized  and  come  in  aid  of  the  old 
supreme  court — so,  that  together  they  might  work 
off  the  old  business. 

Mr.  O'CONOR  confessed  to  the  impeachment 
of  having  drawn  up  the  original  report  and  this 
substitute  for  a  part  of  it ;  but  he  added  that 
the  former  was  submitted  to  the  committee  and 
altered  in  several  respects,  and  reported  as  they 
had  amended  it,  he  objected  to  no  alteration.  As 
to  the  substitute  for  the  2d,  3d,  and  4th  sections 
submitted  by  Mr.  WORDEN,  he  said  he  drew  that 
at  the  request  of  several  members  who  thought 
the  original  sections  too  long — but  he  had  no 
feeling  or  taste  about  either  of  them,  having  acted 
only  the  part  of  reducing  to  shape  propositions 
agreed  on  in  one  case,  and  in  the  other  endeavor- 
ing to  condense  a  part  of  it  to  avoid  objections 
made  to  its  prolixity.  Mr.  O'C.  went  on  to  ex- 
plain the  general  propositions  and  in  what  respect 
they  differ  from  each  other,  leaving  it  entirely  to 
the  convention  to  choose  between  them. 


Mr.  SliMMONS  said  he  had  not  seen  this  sub- 
stitute until  a  moment  ago  ;  but  it  embodied  the 
idea  he  had  entertained— that  the  old  business 
should  continue  in  the  old  courts  as  long  as  should 

be  necessary  to  dispose  of  it,  or  the  mass  of  it. 

He  would  not  dismiss  the  judges  unceremoniously 
— believing  they  deserved  better  of  us  than  to  be 
told  abruptly  to  go  out  of  office,  without  so  much 
as  making  a  bow  to  them.  He  did  not  beli.eve 
they  would  eke  out  the  business  for  the  purpose 
of  remaining  in  office  a  few  months  longer — but 
they  would  go  on  with  the  industry  and  ability 
for  which  they  were  distinguished,  to  work  off  the 
business  which  had  accumulated  on  their  hands. 

Mr.  JORDAN  said  he  had  no  right  to  be  sur- 
prised at  this  substitute  from  the  gentleman  from 
Ontario;  but  he  thought  he  had  some  occcasion  to 
be  surprised  at  its  earning  from  him  with  the  de- 
claration that  it  was  (he  same  thing  substantially 
as  the  original  report,  or  that  part  of  it  for  uhich 
it  was  a  substitute,  If  the  gentleman  from  Essex 
had  never  seen  it  before,  Mr.  JORDAN  had.  It 
was  essentially  the  proposition  submitted  to  the 
judiciary  committee  last  evening  and  voted  down. 
Mr.  J.  went  on  at  some  length  to  point  out  the 
difference  between  it  and  the  original  proposition, 
which  he  preferred  as  contemplating  pulling  the 
new  courts  in  operation  as  soon  as  possible  after 
:he  election  of  judges,  and  leaving  the  old  judges 
o  work  off  the  accumulated  business  on  their 
lands. 

Messrs.  HARRIS,  BASCOM,  HOFFMAN  and 
WORDEN  continued  the  conversation. 

Messrs.  WORDEN  and  LOOMIS  then  with- 
drew their  propositions. 

Mr.  KIRKLAND  moved  to  adjourn.  Lost- 
ayes  38 — noes  39. 

Mr  CHATFIELD  offered  tne  following  as  a 
ubstitute  for  the  whole  report : 

§ — .  The  legislature,  at  its  first  session  after  the  adoption 
>f  this  constitution,  shall,  by  law,  make  provision  for  or- 
;anizing  the  several  courts  in  this  Article  mentioned,  and 
or  tranferring  the  suits,  business  and  proceedings  which 
hall  be  pending  in  the  several  courts  hereby  abolished  to 
he  appropriate  courts  herein  established,  for  carrying 
utigments,  orders  and  decrees  which  may  remain  in  the 
aid  courts  so  abolished,  into  full  effect.  The  term  of  of- 
ce  of  the  several  judicial  officers  first  elected  under  this 
onstitution  shall  commence  on  the  first  day  of  January, 
848  ;  but  the  justices  of  the  supreme  court  shall  perform 
uch  judicial  duties  as  may  be  prescribed  by  law  in  aid  of 
he  supreme  court  and  court  of  chancery,  prior  to  that  day. 

In  order  to  act  on  this  it  was  necessary  to  re- 
onsider  the  vote  on  the  first  section. 

Mr.  KIRKLAND  objected  to  this. 

Mr.  CHATFIELD  said  that  then  he  would 
move  a  re-consideration  to  lie  on  the  table,  and 
Iso  offered  the  above  proposition  as  a  substitute 
or  the  balance  of  the  report. 

Mr.  VAN  SCHOONHOVEN  then  suggested  a 
eference  of  all  the  propositions  to  the  judiciary 
ommittee. 

Mr.  W.  WRIGHT  moved  to  adjourn.     Agreed 

,  and  the  convention  adjourned. 

THURSDAY,  (85th  day)  Sept.  10. 

Prayer  by  the  Rev.  Mr.  VAN  RENSSELAER. 

Mr.  ALLEN  offered  a  resolution  that  the  Con- 
ention  do  respectfully  decline  the  invitation  to 
le  State  Agricultural  Fair  at  Auburn.  Adopted. 

Mr.  MANN  moved  the  following  : 
Resolved,  That  on  and  after  Monday  next,  this  Conven- 
en  will  hold  evening  sessions,  commencing  at  7  o'clock. 


833 


Mr.  HOFFMAN  moved  to  lay  this  on  the  ta- 
ble. Carried. 

TERMINATION  OF  THE  DEBATE  ON  THE 
JUDICIARY. 

Mr.  RUSSELL  called  up  the  resolution  offer- 
ed by  Mr.  COOK  on  Tuesday,  (and  then  laid  on 
the  table,  by  consent  of  the  mover,)  to  terminate 
all  debate  on  the  judiciary  reports,  &c.,  at  12  o'- 
clock this  day. 

Mr.  CAMBRELENG  said  that  he  most  sincerely 
wished  that  {lie  Convention  would  pass  this  reso- 
lution. This  subject  (although  a  very  important 
one)  hud  now  been  debated  with  much  skill  and 
research,  for  nearly  twelve  weeks  ;  that  is,  in 
the  judiciary  committee,  and  in  this  house;  and 
he  most  certainly  thought  that  three  months  was 
time  enough  to  talk  about  it,  and  that  they  ought 
now  to  go  to  work  and  vote  upon  it.  He  did  not 
for  a  moment  assume  to  he  one  ot  the  monitors 
of  the  Convention,  but  his  opinion  was  that  there 
had  been  time  enough  devoted  to  discussing.  He 
did  riot  agree  with  the  gentleman  from  Albany, 
(Mr.  HARRIS)  who  had  said,  that  when  one  sub- 
ject, that  which  had  engaged  the  attention  of  the 
gentleman  from  Allegany~,  (iMr.  ANGEL)  that  on 
the  appointment  or  election  of  all  officers  whose 
functions  are  local,  and  their  tenure  of  office, 
powers,  duties,  and  compensation;  that  when 
this  subject,  and  the  financial  article,  should  be 
.disposed  ot,  he  should  be  ready  and  willing  to  go 
home  j  by  no  means.  For  his  own  part — and  he 
knew  many  gentlemen  agreed  with  him — he  con- 
sidered that  there  were  others  that  must  be  dis- 
posed of  before  they  could  go  home  with  the  as- 
surance that  they  had  done  their  duty;  and  he 
hoped  that  every  subject  which  had  been  present- 
ed to  them  would  at  least  be  voted  upon. 

Mr.  COOK'S  resolution  was  then  considered. 

Mr.  KIRKLAND  moved  to  sirike  out  12  o'clock 
and  insert  6  P.  M. 

Mr.  PATTERSON  said  he  hoped  this  would  not 
pass;  lour  and  a  half  weeks  were  long  enough  to 
talk  about  this  mailer  ;  and  some  men  would  talk 
on  it  till  the  first,  of  January.  Speaking  on  it 
ought  to  stop  at  noon,  and  the  voting  go  on  longer. 

Mr.  TALLMADGE  did  not  think  so;  the  first 
six  weeks  ot  i lie  session  were  consumed  in  con- 
sidering abstract  propositions  of  little  or  no  con- 
sequence; and  now,  when  great  constitutional 
questions  are  involved,  some  latitude  should  be 
allowed.  He  wished  it  left  to  the  discretion  of 
the  members,  and  to  the  good  sense  of  the  Chair, 
to  keep  them  to  the  question. 

Mr.  WATERS URY— Then  we  will  never  get 
through. 

A  VOICE:  No!  not  till  the  resurrection  morn- 
ing. 

Mr.  DODD:  Sir,  I  am  tired  of  this  trifling;  I 
move  the  previous  question. 

This  was  seconded— ayes  55,  noes  11. 

The  main  question  was  ordered. 

Mr.  KIRKLAND'S  amendment  was   negatived 

Mr.  COOK'S  resolution  was  adopted,  almost 
unanimously. 

THE  AMENDMENTS   TO  THE  PRESENT  CONSTI- 

TUTION  AND    THEIR  REVISION. 
Mr.  CHATFIELD  ofiered  the  following: 
Resolved,  That  a  committee  of  five  be  appointed  to  ar- 
range apd  reduce  to  lorm  the  several  amendments  of  the 
constitution  adopted  by  this  Convention  and  to  engrait 


such  amendments  upon  the  constitution  and  to  put  the 
whole  body  of  the  constitution  in  proper  form  to  be  sub- 
mitted to  the  people. 

It  was  laid  on  the  table  by  consent  of  the  mover. 
CONTRACTS  AND  EX  POST  FACTO  LAWS. 

Mr.  TALLMADGE  from  committee  No.  11,  on 
rights  and  privileges,  made  the  following  report, 
in  pursuance  of  the  reference  of  the  section  as 
proposed  by  Mr.  TOWNSEND  yesterday  : 

No  ex  post  facto  law  either  civil  or  criminal  shall  be 
passed;  nor  any  law  impairing  the  obligation  of  a  contract; 
or  the  remedy  existing  at  the  time  such  contract  shall  be 
made. 

It  was  referred  to  the  committee  of  the  whole 
having  charge  of  the  report  of  committee  No.  11 
on  rights  and  privileges  and  ordered  to  be  printed. 
CONCILIATION  COURTS. 

Mr.  MILLER  moved  the  reconsideration  of  the 
vote  by  which  the  authorizing  of  the  legislature 
to  establish  courts  of  conciliation  was  rejected. 
He  said  that  he  most  sincerely  thought  that  such 
courts  ought  to  be  established  ;  they  would  most 
assuredly  be  of  very  great  utility.  He  had  no 
particular  tenacity  in  respect  to  the  form  in  which 
these  courts  should  be  established,  but  he  did 
desire  that  the  Convention  should  indicate  to  the 
legislature,  by.  their  action  on  this  subject,  that 
they  believed  in  the  propriety  of  such  tribunals. 
He  (Mr.  MILLER)  was  sure  that  a  large  number 
of  petty  suits  could  fcnd  would  be  settled  there 
without  a  resort  to  courts  of  law.  It  was  not  his 
desire  to  open  a  way  for  the  creation  of  any  addi- 
tional number  of  public  officers ;  and  he  had  no 
doubt  that  there  might  be  found  in  every  county, 
worthy  and  competent  individuals  who  would 
consent  to  act  without  fee  or  reward  in  this  mat- 
ter. The  attention  of  the  people  had  been  called 
to  this  subject ;  they  had  earnestly  desired  to  have 
them  to  try  them ;  there  was  a  great  demand  for 
them  throughout  the  state.  The  PRESIDENT  of 
the  Convention  himself  had  been  addressed  on 
this  subject  through  the  newspapers  by  able  per- 
sons who  took  a  deep  interest  in  the  subject 
These  courts  would  not  lead  to  additional  ex- 
pense ;  true,  they  would  cut  down  law  business ; 
two-thirds  of  the  cases  involving  $20  or  less  would 
be  settled  there ;  and  he  hoped  the  Convention 
would  agree  to  reconsider.  By  the  adoption  of 
some  affirmative  proposition  on  this  point,  they 
would  greatly  increase  the  chance  for  the  adop- 
tion of  the  whole  judiciary  article,  or  the  consti- 
tution if  submitted  as  a  whole. 

Mr.  BURR  hoped  that  this  motion  to  re- 
consider would  be  carried ;  for  like  his  friend 
(Mr.  MILLER)  he  did  wish  to  see  something 
in  the  constitution  that  should  say  to  the  le- 
gislature, that  this  convention  was  desirous 
they  should  establish  their  tribunals  for  con- 
ciliation. He  did  not  so  much  care  about  the 
form  of  them ;  he  felt  sure  they  would  stop 
much  litigation ;  save  time,  trouble  and  expense 
to  the  people;  and  be  hardly  any  or  no  additional 
expense  to  the  state.  He  knew  one  humble  good 
man,  a  magistrate  near  him,  who  acting  as  conci- 
liator, had  settled  more  than  the  disputed  cases 
that  came  before  him. 

Mr.  W.  TAYLOR  hoped  they  were  not  going 
to  run  into  the  error  complained  of  on  another  oc- 
casion— debate  this  all  day.  (Laughter.)  He 
moved  the  previous  question. 

79 


834 


It  was  seconded. 

Mr.  WATERBURY  said  he  was  determined  to 
have  the  ayes  and  noes  on  this,  that  all  should 
show  their  hand;  and  be  put  on  the  record  to 
show  they  were  opposed  to  peace  and  truth. 

They  were  ordered,  also  the  main  question  and 
resulted — ayes  64 — noes  22. 

AYES— Messrs.  Allen,  Angel,  Archer,  Ayranlt,  Baker, 
Bascom,  Bergen,  Brayton,  Bruce,  Bull,  Burr,  Cambreleng, 
K.  Campbell  jr  ,  Chamberlain,  Clark,  Dantorth,  Dodd,  Du- 
bois  Graham,  Greene,  Harrison,  Hart.  Hotchkiss,  A.Hunt- 
ineton  E  Huntington.  Kemble,  Kingsley,  Kirkland,Mann, 
McNeU,  Maxwell,  Miller,  Munro,  Nellis,  Nicholas, Sears, 
Shaver  Shaw,  Sheldon,  W.H.  Spencer.Stanton,  Stephens, 
Stow,  Strong,  Tail,  Tallmadge,  J.  J.  Taylor,  W.  Willard, 
"Worden,  Yawger,  Young-  64. 

NOES Messrs.  F.  F.  Backus,  Chatfield,  Cook,  Dana, 

Gebhard,  Hawley,  Hoflman.  Hunter,  Jordan,  Loomis, 
Murphy  "O'Conor,  Powers,  Hiker,  Shepard,  Simmons,  E. 
Spencer!  Stetson,  Wood,  A.  Wright,  W.  B  Wright, 
Foung— 22. 

So  the  vote  was  reconsidered,  and  the  proposit- 
ion for  conciliation  courts  took  its  place,  with 
others,  on  the  table,  to  be  considered  in  regular 

order. 

THE  JUDICIARY. 

The  PRESIDENT  then  announced  the  question 
to  be  on  the  amendment  pending  last  night,  to 
the  supplemental  report  made  by  Mr.  »0'CoNOR. 
Mr.  CHATFIELD  moved  to  reconsider  the 
vote  adopting  the  1st  section  of  the  supplemen- 
tary report  of  the  judiciary  committeee,  present- 
ed by  Mr.  O'CONOR. 

Mr.  JORDAN  said  that  he  sincerely  believed 
that  this  amendment  would  not  prevail.  The 
section  ought  not  to  be  reconsidered  ;  and  he  be- 
lieved that  the  report  submitted  by  Mr.  O'CoN- 
OR,  with  some  amendments  which  (Mr.  J.) 
would  indicate  would  be  the  best  that  could  pos- 
sibly be  adopted  ;  perhaps  this  was  the  best  time 
to  present  his  amendments  ;  they  were  somewhat 
numerous  but  they  prescribed  the  precise  mean- 
ing of  the  section,  merely  reducing  the  verbiage 
about  one-third.  He  then  moved  the  amendments, 
which  added  to  the  original  report  of  Mr.  O'Cow- 
oR,make  the  report  read  as  follows  : 

t>  1.  The  Legislature  at  its  first  session  after  the  adoption 
of  this  Constitution,  shall  provide  for  the  organization  ol 
the  court  ol  appeals,  and  for  transferring  to  it  the  business 
pending  in  the  court  for  the  correction  of  errors,  and  for 
the  allowance  of  writs  of  error  and  appeals,  to  the  court 
of  appeals,  from  the  judgments  and  decrees  of  the  present 
court  of  chancery  and  supreme  court,  and  of  the  courts 
that  may  be  organized  under  this  Constitution. 

(5  2.  The  first  election  of  judges  of  the  court  of  appeals; 
justices  of  the  supreme  court,  and  judges  of  the  county 
courts  shall  take  place  at  such  time  as  may  be  prescribed 
by  law,  between  the  first  Tuesday  of  May,  and  the  second 
Tuesday  of  June,  1847.  The  said  courts  shall  respectively 
organize,  and  enter  upon  their  duties,  on  the  first  Monday 
of  July  next  thereafter;  but  the  terms  of  office  of  saic 
judges  and  justices  as  declared  by  this  Constitution,  shal. 
be  deemed  to  commence  on  the  first  day  oi  January,  Ib48 
5)  3.  On  the  first  Monday  of  July,  1S47,  jurisdiction  ol  ah 
suits  and  proceedings  then  pending  in  the  present  supreme 
court  and  court  of  chancery,  and  all  suits  and  proceedings 
originally  commenced  and  then  pending  in  any  court  o. 
common  pleas,  (except  in  the  city  and  county  of  New 
York)  shall  become  vested  in  the  supreme  court  hereb) 
established. 

5)4.  But  the  Chancellor  and  present  supreme  court  shal 
respectively  have  power  to  hear  and  determine  any  of  sucl 
suits  and  proceedings  then  ready  to  be  noticed  for  hearing 
and  shall  for  their  services  therein  be  entitled  to  their  pre 
sent  rate  of  compensation  until  the  1st  day  ol  July,  1849, 01 
until  all  such  suits  and  proceedings  shall  be  sooner  hean 
and  determined.  The  supreme  court  hereby  established 
shall  also  have  power  to  hear  and  determine  such  of  saij 
suits  and  proceedings  as  may  be  presented  l.y  law. 


fj  o.  In  case  any  vacancy  shall  occur  in  the  office  of  chan- 
•elior  or  justice  of  the  present  supreme  court,  previously 
o  the  1st  day  of  July,  1849,  the  Governor  may  nominate, 
and  by  and  with  the  advice  and  consent  of  the  Senate,  may 
.ppoint  a  proper  person  to  fill  such  vacancy.  Any  judge 
if  the  court  of  appeals  or  justice  of  the  supreme  court, 
lected  under  this  article,  may  receive  and  hold  such  ap- 
lointment. 

{j  6.  The  offices  of  chancellor,  justices  of  the  supreme 
court,  (except  as  herein  otherwise  provided);  circuit  and 
Bounty  judges;  vice  chancellors;  assisting  vice  chancel- 
or,  and  masters  and  examiners  in  chancery,  as  now  exist- 
ng,  shall  expire  on  the  first  Monday  of  July,  1847. 

§  7.  The  chancellor,  the  justices  of  the  present  supreme 
>ourt,  and  the  circuit  judges,  are  hereby  declared  to  be 
everally  eligible  to  any  office  at  the  first  election  under 
his  Constitution. 

Mr.  O'CONOR  said  that  as  he  drew  up  the 
upplemental  report,  it  might  be  necessary  that 
le  should  express  his  concurrence  in  these 
amendments.  He  gave  his  full  assent  to  them, 
and  hoped  they  would  be  adopted. 

Mr.  MANN  said  that  he  opposed  the  report  be- 
bre  it  was  amended,  and  as  these  amendments 
.engthened  instead  of  shortened  the  original  re- 
jort  that  therefore  he  should  oppose  it. 

Mr.  JORDAN  said  that  on  his  honor,  he  could 
assure  the  gentleman  from  New-York  that  he 
was  mistaken  for  he  had  counted  the  words  iu 
he  two,  and  found  that  he  had  reduced  the  re- 
port from  165  to  351  words. 

Mr.  MANN  said  that  there  was  also  another 
reason  why  he  was  opposed  to  this ;  it  allowed 
he  present  judicial  officers  to  remain  in  office  for 
he  avowed  purpose  of  disposing  of  the  arrears  of 
Business  that  would  accrue ;  and  thus  they  might 
lold  on  for  two  or  three  years.  In  his  judgment 
all  these  constitutional  provisions  should  be  short 
and  explicit. 

Mr.  RUSSELL  said,  that  having  adopted  one 
section,  we  ought  to  go  on  and  act  upon  the  rest 
without  returning  back  to  sections  disposed  of. 

Mr.  O'CONOR  hoped  the  reconsideration  would 
be  carried. 

Mr.  BURR  did  not  like  the  welding  of  the  old 
upon  the  new  systems. 

Mr.  UASCOM  said  they  could  accomplish  their 
object  by  moving  to  jstrike  out  one  year. 

Mr,  STRONG  moved  the  pievious  question.  It 
was  seconded  63  to  4 

The  main  question  was  ordered,  and  the  [notion 
to  reconsider  was  not  agreed  to — -dyes  25,  noes  b'5. 

Mr.  JORDAN  sea;  up  the  section  as  lie  had 
amended  it,  as  a  subsiitule  lor  the  second  seciion 
as  reported  irom  the  coimnitiee. 

Mr.  CHATFIELD  moved  to  amend  by  striking 
out  as  ibll<ms:"Tne  said  courts  shall  respectively 
oraainzi  and^eti'er  upon  their  duties  on  the  first 
Monday  of  July  next  thereafter." 

Mr.  "LOOMIS  opposed  the  amendment;  the  ob- 
jection oi  the  gentleman  from  Oist-go  was  preuio- 
lure. 

Mr.  O'CONOR  concurred  with  the  gentleman 
from  HetUimer.  The  gentleman  trom  Oisego  had 
entirely  misapprehended  the  section.  Mr.  O'C. 
explained  the  object  or  ihe  section. 

Mr.  MILLER  moved  the  previous  ques:ion,  and 
it  was  seconded— 56  in  tiie  affii mauve.  The  main 
question  was  ordered. 

The  motion  to  strike  out  was  negatived — ayes 
28,  noes  55 

Mr~.  DANA  asked  consent  to  insert  "  April"  for 
"  May,5'  and  it  wad  assented  to. 


835 


The  section,  as  amended,  was  agreed  to. 

Tin-  third  section  was  rc-ad. 

Mr.  JORDAN  moved  his  amended  section  as  a 
substitute. 

Mr.  BAKER  moved  the  previous  qmg'ion,  and 
it.  v\as  seconded  by  <H  voles.  The  main  question 
was  ordered,  ihe  substitute  adopted,  and  the  sec- 
tion as  amei.ded  was  agreed  to. 

The  fourth  section  was  lead. 

Mr.  JORDAN'S  amended  section  was  submitted 
as  a  substitute. 

Mr.  MANN  moved  to  strike  out  "nine"  and 
insert,  "tight"  to  diminish  the  peiiod  of  office  of 
the  present  judges  as  proposed,  one  year. 

Mr  KIRKLAND  hoped  gentlemen  would  pause, 
and  remember  that  there  was  a  vast  amount  ol 
business  in  our  courts  now,  undisposed  of.  At 
•JOOO  causes  were  ready  lor  trial.  He  spoke 
fiom  observation.  With  a  calendar  of  900  causes, 
the  supreme  court  was  able  to  dispose  of  not  more 
ihan  70  or  SO  in  a  term  of  four  weeks.  The  Chan, 
cellor,  dunntc  his  recent  term,  had  heard  but  one 
cause  in  the  fourth  class  of  cases.  He  begged 
that  this  new  plan  might  not  be  burdened  with  all 
this  old  business,  which  in  addition  to  what 
would  constantly  arise,  would  be  too  much  and 
would  break  it  down.  6 

Mr.  STRONG  hoped  the  Convention  would 
not  be  frightened  by  this  exhibit  of  causes.  He 
ventured  to  say  that  if  you  continued  the  old 
court  of  chancery  for  ten  years,  it  would  be  in  the 
same  condition  as  now.  If  that  court  had  been 
able  to  hear  but  one  cause  during  an  entire  term, 
it  was  time  that  its  days  were  numbered.  The 
people  had  sealed  its  death  warrant.  He  was 
willing  to  t?.ke  the  statement  they  had  so  often 
heard  from  the  judiciary  committee,  that  the  thir- 
ty-two judges  would  do  all  the  business. 

Mr.  JORDAN  was  sorry  to  see  his  friend  from 
Monroe, (Mr.  STRONG)SO  blood-thirsty  this  morn- 
ing. It  was  entirely  contrary  to  his  nature,  and 
from  the  smile  on  his  face  directly  after  sealing 
the  death-warrant  of  the  old  courts,  he  was  satis- 
fied he  did  not  mean  exactly  what  he  said.  He, 
(Mr.  J.)  was  in  favor  of  getting  rid  of  the  old 
shyster  as  soon  as  possible,  and  he  thought  that 
by  the  provisions  of  the  article  they  would  cease 
to  receive  the  salaries  the  moment  they  had  fin- 
ished the  causes  which  were  ready  for  hearing 
on  the  1st  of  July, 18-1-7,  if  it  was  one  month  after- 
l.  Gentlemen  had  said  that  they  did  not 
think  much  of  the  new  system  if  it  could  not  do 
up  all  the  business  without  aid  from  the  old  courts. 
•;iould  think  itss  of  them  if  they  could  do  so. 
lie  was  anxious  to  give  the  new  system  a  fail- 
trial.,  and  not  burthen  it  with  too  much  business 
at  the  start.  The  only  thing  to  be  feared  was  the 
dishonesty  of  the  old  judge,  and  he  was  not  pre- 
1  to  believe  that  either  the  chief  justice  or 
his  associates  were  dishonest  men,  but  had  con- 
tinence that  they  would  dispose  of  all  their  un- 
liuished  business  as  soon  as  possible. 

Mr.  RICHMOND  thought  the  gentleman  from 
Columbia  had  conceded  too  much.  If  the  new 
court  could  not  dispose  of  the  business  without 
aid  from  the  old  courts,  why  not  let  them  go  on 
her  and  remain  in  full  blast  all  the  time. — 
Th.- arguments  of  the  gentleman  would  apply  to 
the  Omrt  of  Errors,  and  then  they  would  have  a 
little  more  pickings. 


Mr.  JORDAN  said  it  was  utterly  impossible  to 
tell  what  was  the  exact  amount  of  business  on 
hand.  The  calendar  told  the  minimum,  but  it 
did  not  tell  the  maximum.  His  proposition  was 
a  plan  to  prevent  the  new  courts  being  clogged 
un  with  these  accumulated  arrears  of  years;  and 
if  the  judges  could  not  be  trusted  to  do  it  without 
a  suspicion  that  they  would  knavishly  protract 
the  time,  for  the  sake  of  the  perquisites  of  office, 
they  should  not  be  trusted  at  all,  whether  with  or 
without  restrictions. 

Mr.  TALL  MADGE  said  he  would  not  consent 
to  extend  the  time  beyond  Jan.  1st,  1848.  If  the 
eight  courts  now  established,  together  with  the 
two  existing,  could  not  dispose  of  all  the  arrears 
of  business  in  a  year,  then  the  people  ought  to 
call  another  convention,  and  to  abolish  them. 
(Laughter.) 

Mr.  KIRKLAND  called  for  the  ayes  and  noes. 
On  motion  of  Mr.  MANN,  they  were  ordered. 

The  motion  to  strike  out  "  9,"  and  insert  "  8," 
was  agreed  to — ayes  54 — noes  40. 

Mr.  CHATFIELD  moved  to  amend  by  striking 
out  from  the  word  "  respectively,"  in  the  4th  sec- 
tion, and  insert  as  follows : — "  have  power  to  de- 
termine any  of  such  suits  or  proceedings  as  may 
have  been  argued  in  said  courts  respectively ;  and 
for  that  purpose  shall  be  entitled  to  their  present 
rate  of  compensation,  after  the  first  day  oi  Janua- 
ry, 1848,  until  all  such  suits  and  proceedings  as 
shall  have  been  previously  determined ;  but  such 
compensation  shall  not  continue  after  the  first  day 
of  July,  1848." 

Mr.  LOOMIS  said  this  proposition  was  entirely 
unnecessary. 

Mr.  CHATFIELD  said  that  this  amendment 
tended  to  bring  the  services  of  the  oid  courts  in 
aid  of  the  new,  and  the  business  to  a  close  sooner 
than  they  would  be  by  the  proposition  as  amended. 
He  wanted  to  save  as  much  time  as  possible.  The 
Convention,  by  the  arnedment  just  adopted,  had 
determined  that  the  term  of  the  present  judges 
should  terminate  on  or  before  the  8th  day  of  July, 
1S48.  They  should  therefore  not  be  allowed  to 
hear  any  arguments  alter  the  first  day  of  January, 
that  they  might  have  six  months  to  decide  on 
those  argued. 

Mr.  O'CONOR  said  that  he  was  one  of  those 
who  did  not  believe  that  the  new  system  would 
be  able  to  do  ail  the  business  of  the  state;  yet  he 
was  disposed  to  give  them  as  fair  a  start  as  possi- 
ble, by  preventing  them  becoming  embarrassed  by 
too  great  an  amount  of  business.  He  was  sorry 
to  see  that  those  who  did  not  believe  in  the  <  Ui- 
ciency  of  ihe  new  system,  were  willing  to  throw 
upon  the  courts  burthens  yyhicn  would  seriously 
embarrass  them  at  the  commencement  of  their  du- 
I  ties.  He  thought  he  saw  a  combination  amongst 
the  friends  and  enemies  of  it,  to  ihiovv  upon  it  a 
great  amount  of  business,  which  would  have  the. 
cil'ert  of  breaking  it  down;  the  motives  might  be 
different,  but  the  result  would  be  the  same.  The 
morion  which  had  just  prevailed  he  regarded  as 
iniurious  to  the  new  system,  and  tending  to  throw 
obstacles  in  the  way  of  its  success.  He  could  not 
regard  it  as  objectionable,  or  as  any  reflection  up- 
on the  ability  of  the  new  courts,  to  allow  the  oid 
ones  to  give  them  all  the  aid  which  they  Would 
require  in  the  commencement  and  until  the  busi- 
ness in  arrears  was  finally  disposed  of.  He  hoped 


836 


the  amendment  would  not  prevail,  but  that  the 
section  would  be  passed  exactly  as  it  was  at  pre- 
sent. He  was  one  of  the  enemies  of  this  new  ju 
diciary  system,  because  he  did  not  believe  in  its 
capacity  ;  but  common  justice  required  it  should 
have  a  fair  trial  and  not  be  ovei  whelmed  with 
business. 

Mr.  CHATFIELD'S  amendment  was  negatived. 

Mr.  LOOMIS  moved  to  amend  the  amendment 
of  the  gentleman  from  Columbia,  thus  : — 

"  The  legislature  may  confer  upon  the  present  chancel- 
lor and  justices  of  the  supreme  court,  or  in  case  either  of 
these  offices  shall  become  vacant,  then  upon  such  other 
persons  as  may  be  designated  by  the  Governor  in  their  re- 
spective places,  power  to  hear  and  determine  any  of  such 
suits  and  proceedings  ready  to  be  noticed  for  hearing  on 
the  1st  Monday  of  July,  1847,  and  they  shall  while  so  em- 
ployed  be  entitled  to  their  present  rates  of  compensation. 


1348. 


uch  employment  shall  not  extend  beyond  the  1st  of  July, 

Mr.  L.  explained  the  difference  between  the 
amendment  of  the  gentleman  from  Columbia  and 
his  own. 

Mr.  O'CONOR  also  explained. 

Mr.  MILLER  moved  the  previous  question  and 
there  was  a  second,  &c. 

Mr.  HOTCHKISS  called  for  the  yeas  and  nays 
on  the  amendment,  and  there  were  yeas  12,  nays 
75. 

Mr.  JORDAN'S  amendment  was  adopted,  and 
the  section  as  amended  agreed  to. 

The  fifth  section  was  next  read,  and  also  Mr. 
JORDAN'S  substitute,  and  the  figures  "  1849" 
were  altered  to  "  1848"  to  conform  to  a  previous 
amendment. 

Mr.  LOOMIS  moved  to  strike  out  the  last  sen- 
tence thus : 

"Any  judge  of  the  court  of  appeals  or  justice  of  the  su- 
peme  court,  elected  under  this  article,  may  receive  and 
hold  such  appointment." 

Mr.  O'CONOR  explained  the  necessity  of  the 
words  proposed  to  be  stricken  out. 

The  amendment  was  lost — 27  only  voting  in  the 
affirmative. 

Mr.  JORDAN'S  substitute  was  agreed  to,  and 
the  section  as  amended  passed — a  motion  ot  re- 
consideration being  laid  on  the,  table. 

The  sixth  section  was  read. 

Mr.  BAKER  moved  to  amend  the  amendment 
of  Mr.  JORDAN  by  adding  '*  supieme  court  com- 
missioners" atter  the  words  "  vice  chancellor." — 
Agreed  to. 

Mr.  JORDAN'S  amendment  was  adopted  as 
amended.  And  the  section  and  likewise  the 
seventh  were  agreed  to. 

Mr.  MILLER  called  for  the  question  on  the 
section  to  establish  conciliation  courts,  the  vote 
rejecting  which  was  this  morning  reconsidered,  as 
follows  : 

§  — .  There  may  be  established  in  any  county  one  or 
more  tribunals  of  conciliation,  each  to  by  composed  of  not 
exceeding  three  conciliators,  to  lie  elected  as  the  legisla- 
ture may  direct.  The  legislature  may  afford  parties  in- 
ducements to  submit  their  differences  to  the  coBciliation 
of  such  tribunals,  by  regulations  as  to  cost  in  other  courts. 

Mr.  BAKER  desired  to  amend  so  as  to  obviate 
the  objections  which  heretofore  caused  its  rejec- 
tion. He  was  proceeding  to  give  his  reasons,  but 
was  called  to  order,  the  hour  of  12  having  arrived. 
He  then  moved  his  amendment  and  it  was  adopt- 
ed, 54  to  37. 

Mr.  ST.  JOHN  moved  to  strike  out  the  section 
and  insert  a  simple  provision  thus,  "  conciliation 


courts  may  be  established  with  such  powers,  and 
duties  as  may  be  provided  by  law." 

It  was  adopted  47  to  35. 

Mr.  JORDAN  moved  to  strike  out  "  courts," 
and  insert  •«  tribunals."  Agreed  to. 

Mr.  TAGGART  moved  to  amend  by  adding  the 
words  of  the  next  section,  so  as  not  to  make  the 
decision  obligatory. 

Mr.  TALLMADGE  said  that  was  a  motion  to 
murder  the  proposition  by  the  way  side. 

Mr.  JORDAN  moved  to  amend  the  amendment 
by  adding  "  or  subject  them  to  any  penalty  or  for- 
feiture." Lost,  41  to  49. 

Mr.  JORDAN  asked  if  any  thing  provided  a 
forfeiture  or  penalty  on  the  parties,  although  the 
judgment  was  not  binding. 

The  PRESIDENT  replied  in  the  negative. 

The  amendment  of  Mr.  TAGGART  was  adopted, 
66  voting  in  the  affirmative. 

So  the  entire  section  reads  as  follows : — 

^—•Tribunals  of  conciliation  may  be  established  with 
such  powers  and  duties  as  may  be  prescribed  by  law  ;  but 
such  tribunals  shall  have  no  power  to  render  judgment  to 
be  obligatory  to  the  parties,  except  they  voluntarily  sub- 
mit their  matters  of  diflerence  and  agree  to  abide  the  judg- 
ment or  assent  thereto,  in  the  presence  of  the  tribunal  in 
such  cases,  as  shall  be  prescribed  by  law. 

Mr.  CROOKER  inquired  ii  any  appeal  were 
allowed  from  the  decision  of  these  conciliators? 
[Cries  of  "  oh  no,  it  is  unnecessary  "]  Mr.  C. 
thought  there  should  be  preserved  the  right  of  ap- 
peal to  a  town  meeting.  [Laughter.] 

Mr.  RUSSELL  moved  to  amend  by  adding  "the 
magistrates  of  such  tribunals  shall  be  such  justic- 
es of  the  peace  as  may  be  provided  by  law."  Lost. 

Mr.  HAWLEY  moved  to  amend  by  adding  "the 
members  of  such  tribunals  shall  receive  no  salary 
fee.--,  or  perquisites  of  office."  Lost. 

Mr.  SIMMONS  rose  to  speak,  but  was  informed 
that  by  the  order  (  f  the  House,  debate  must  cease 
at  12  o'clock,  which  was  now  passed. 

Mr.  SIMMONS.  I  ask  unanimous  consent  to 
make  an  exposition  of  four  lines  only. 

About  twenty  voices  weie  heard — "  I  object." 

The  section  as  amended  was  adopted — ayes  71, 
noes  22. 

Mr.  JORDAN  moved  a  re-consideration  of  the 
amendment  which  he  offered  (and  which  was  re- 
jected) to  provide  that  no  penalties  or  forfeitures 
shall  be  entorced  against  parties  to  compel  sub- 
mission to  the  decisions  of  these  courts.  If  such 
system  were  to  be  allowed  it  would  be  the  worst 
kind  of  despotism. 

Mr.  STEPHENS  hoped  thewjuestion  would  be 
taken  now  and  finally  dispose 

Mr.  JORDAN  preferred  not  to  take  the  ques- 
tion now. 

Mr.  RICHMOND  called  for  the  question. 

The  PRESIDENT  ruled  that  the  question  could 
not  be  taken  now,  unless  by  unanimous  consent. 

Messrs.  JORDAN  and  O'CONOR  objected— so 
the  motion  lies  over. 

Mr.  TOWNSEND  moved  a  re-consideration  of 
the  section  in  relation  to  conciliation  courts — in 
order  that  the  question  might  be  finally  settled. 

Mr.  JORDAN  objected  to  that,  so  long  as  his  mo- 
tion was  pending  to  re-consider  the  vote  rejecting 
his  amendment — an  amendment  designed  to  pre- 
vent conciliators  from  subjecting  parties  to  penal- 
ties and  forfeitures  unless  they  agreed  to  their 
judgments. 


_ 


837 


Mr.  TOWXSKAD  UK-II  gave  notice  of  a  motion 
to  re-consider  the  vote  adopting  the  section  allu- 
ded to.  He  desired  to  close  up  that  question. 

Mr.  O'CONOR  offered  the  following  additional 
section  to  the  judiciary  report : — 

*}  — .  The  court  of  appeals  shall  have  power  on  motion 
to  determine  the  venue  of  suits  and  proceedings  depending 
in  the  supreme  court. 

Rejected,  ayes  10,  noes  72. 

O'CONOR  moved  to  reconsider. 
Air.  LOOM1S  offered  the  following  section: — 
^ — .  The  legislature  shall  provide  for  the  speedy  publi- 
cation  of  all  state  laws  and  of  such  judicial  decisions  as  it 
may  deem  expedient,  so  as  to  render  the  same  easy  of  ac- 
quisition  by  tne  people;  and  all  laws  and  judicial  deci- 
sions shall  be  free  for  publication  by  any  person. 

Mr.  VV.  H.  SPENCER  moved  to  amend,  so  that 
a  copy  of  all  laws  and  decisions  ot  a  general  na- 
ture should  be  deposited  in  each  school  district  ot 
the  state.  Lost. 

The  question  being  then  on  Mr.  LOOMIS'  propo- 
sition, 

Mr.  DANA  rose  to  inquire,  whether,  as  this 
section  related  puiely  to  the  legislative  depart- 
ment, it  felt  under  the  rule  adopted  this  morning, 
closing  deb;ife  on  the  judiciary  article  ? 

Tiie  PRESIDENT— (Mr.  PATTERSON  occupy- 
ing (lie  chair)  — ruled  that  it  did — as  tne  rule  em- 
Draced  ail  matter  connected  therewith. 

Mr.  BASCOM  suggested  it  was  only  intended 
to  cover  matler  then  connected  therewith.  He 
did  not  want  to  sec:  new  propositions  poked  in 
here,  and  members  torced  to  a  vote  on  them  with- 
out debate. 

Mr.  JORDAN  called  for  the  ayes  and  noes  on 
Mr.  LOOMIS'  proposition  arid  it  was  adopted,  as 
follows : 

AYES— Messrs.  Allen,  Archer,  F.  F.  Backus,  H.  Back- 
us, liaker,  Bascom,  Bergen,  Bouck,  Bowdish,  Bruce,  K. 
Campbell,  jr.,  Clark,  Cornell,  Dana,  Dodd.Dorlon,  Dubois, 
Flandois,  (Jebiiard,  Gfaham,  Harris,  Harrison,  Huiirnau, 
Hotchkiss,  Hunter,  A.Huutington,  Hutchinson,  Hyde, Jor- 
dan, Keinble,  Keinan,  Looinis,  Mann,  U'Conor,  Patterson, 
Powers,  at.  John,  Salisbury,  Sanlord,  Shaver,  Shaw,  Shu- 
mons,  Smith,  W.  H.  Spencer,  Stanton,  Stephens,  Tuft, 
Townsend,  Tuthill,  Warren,  Waterbury,  White,  Wood 
Worden,  A.  W.  Wright,  W.  B.  Wright,  Yawger,  Youug 
— —  5i). 

NOES— ;\lc=srs.  Angel,  Braytou,  Bull,  Burr,  Chambre- 
leng,  Chatlield,  Cook,  Cr.-oker,  Cuddeback,  Danforth, 
Gardner,  Hart,  HawJey,  E.  Huntingtou,  Kirkland,  Mc.Nitt, 
Marvin,  filler,  Munro,  Nicholas,  Nicoll,  Parish,  President, 
Hiker,  Russell,  Sears,  E.  Spencer,  Taggart,  'i'allmadge, 
Vache,  Ward,  Youngs— 3:2. 

Mr.  TAGGART  offered  the  following  section : 
<J — .  The  legislature  shall  by  law  so  regulate  the  prac- 
tice and  proceedings  in  ail  courts,  that  eveiy  paity  to  any 
action  or  proceeding  may  have  any  remeuy  or  relief  to 
which  he  may  be  emitiea  in  le'.creuce  to  the  subject  mat- 
ter ot  such  action  or  proceeding,  either  legally  or  equita- 
bly in  the  same  action  or  proceeding  without  resoiting  to 
any  other  action. 

Mr.  JORDAN  enquired  whether  this  was  de- 
bateable  ? 

The  PRESIDENT  ruled  that  it  was  not. 

Mr.  JORDAN  then  enquired  if  the  proposition 
was  in  order  ?  If  it  was— then,  after  spending  so 
much  time  in  maturing  this  system,  amendments 
might  be  thrown  in  here,  and  in  the  absence  of 
all  debate  or  explanation,  might  be  adopted,  that 
•would  completely  overthrow  the  whole  fabric 
which  we  had  taken  so  much  pains  to  erect.  He 
insisted  that  the  rule  cutting  off  debate  could  not 
apply  to  propositions  not  pending  when  the  rule 
was  adopted. 


The  PRESIDENT  directed  the  resolution  al- 
luded to,  to  be  read,  and,  it  having  been  read, 

Mr.  JORDAN  reiterated  his  point  of  order — 
and  in  reply  to  a  remark  that  Mr.  LOOMIS'  pro- 
position was  in  the  same  position  as  this — said  he 
thought  that  proposition  was  debateable,  but  the 
question  was  not  then  raised. 

Mr.  RUSSELL  moved  to  lay  on  the  table  the 
proposition  of  Mr.  TAGGART,  and  the  point  of 
order. 

Mr.  JORDAN  said  he  had  riot  yielded  the  floor. 
He  asked  for  the  decision  of  the  chair  on  the 
point  of  order. 

The  PRESIDENT,  (Mr.  PATTERSON,)  said 
upon  the  reading  of  the  resolution,  and  examin- 
ing it  more  critically,  the  Chair  was  of  opinion 
that  it  applied  only  to  propositions  pending  when 
it  was  adopted.  And  being  a  resolution  restric- 
tive of  the  freedom  of  debate,  it  should  be  con- 
strued liberally. 

Mr.  CHATFIELD  appealed  from  this  decision. 

Mr.  RUSSELL  insisted  on  his  motion  to  lay  on 
the  table  as  taking  precedence  of  the  appeal. 

The  motion  prevailed. 

Mr.  MARVIN  offered  the  following  :— 

The  court  of  appeals  shall  have  power  to  issue  writs  of 
habeas  corpus,  mandamus,  prohibition,  quo  warranto,  in- 
formations in  the  nature  of  quo  warranto,  and  other  o<igi- 
nal  remedial  writs,  and  to  hear  and  determine  the  same. — 
in  case  an  issue  in  fact  i>e  issued  in  any  such  case,  the  said 
court  may  refer  such  issue  of  fact  to  the  supreme  court  to 
be  tried  by  a  jury. 

Mr.  M.  was  proceeding  to  explain  his  proposi- 
tion, when 

Mr.  CHATFIELD  called  to  order— and  formal- 
ly raised  the  point  whether  the  rule  adopted  this 
morning  did  not  preclude  debate  on  all  proposi- 
tions relating  to  this  article. 

The  PRESIDENT  reiterated  the  decision  be- 
fore made,  that  debate  was  inadmissable  only  on 
propositions  pending  when  the  rule  of  this  morn- 
ing was  adopted. 

Mr.  CHATFIELD  appealed— and 

Mr.  CAMBRELENG  sustained  the  appeal. 

Mr.  HOFFMAN  sustained  the  chair. 

Mr.  MARVIN  said  he  did  not  want  to  be  re- 
sponsible for  the  consumption  of  one  moment  of 
time,  and  therefore  should  not  discuss  the  appeal. 
Had  he  been  permitted  to  go  on,  he  should  not 
have  consumed  one  moment.  He  now  moved  the 
previous  question  on  the  appeal. 

The  call  was  seconded  55  to  12,  and 

The  decision  of  the  chair  was  sustained,  ayes 
82,  noes  8. 

Mr.  MARVIN  (his  proposition  now  coming  up) 
urged  that  there  should  be  a  single  court  some- 
where in  the  stale,  having  the  power  to  issue 
these  original  prerogative  writs.  But  he  would 
not  debate  the  question,  supposing  the  matter  to 
be  fully  understood.  He  offered  the  section  not 
to  embarrass  this  system,  but  to  improve  and  per- 
fect it.  He  drew  it  up  some  ten  days  ago. 

Mr.  SIMMONS  had  no  objection  to  the  section, 
provided  the  mover  would  so  word  it  as  to  give 
:his  power  concurrently  with  the  supreme  court. 

Mr.  MARVIN  supposed  it  would  be  concur- 
rent. He  added  that  lie  had  no  objection  to  vary- 
ing it  so  as  to  leave  it  to  the  legislature  to  confer 
this  power. 

Mr.  KIRKLAND  said  the  very  statement  that 
the  section  proposed  to  give  the  court  of  appeals 


838 


concurrent  power  with  the  supreme  court  to  issue 
these  prerogative  writs,  showed  that  it  was  en- 
tirely unnecessary.  If  the  supreme  court  had 
this  power  now,  why  give  the  same  power,  to  be 
exercised  concurrently,  to  another  tribunal  ? 

Mr.  JORDAN  had  no  doubt  the  mover  of  this 
proposition  offered  it  with  the  best,  motive,  but  he 
thought  the  gentleman  had  entirely  mistaken  the 
effect  of  it.  We  had  already  heard  that  this  court 
of  appeals  would  be  broken  down  in  eighteen 
month?;  and  he  confessed,  were  he  an  enemy  or 
this  system,  and  desired  so  to  arrange  it  as  to  pro 
duce  ihat  result,  he  should  propose  as  one  of  the 
means  of  doing  it,  this  very  proposition.  When 
these  applications  1'or  writs  of  mandamus,  or  pro- 
hibition or  quo  warranto  came  before  a  court,  there 
must  be  a  hearing  before  the  writ  issues,  and  a 
hearing  after  it  was  returned — and  there  would  be 
no  doubt  that  this  court  of  appeals  rnisht  find  it- 
self seriously  burdened  with  this  business.  He 
did  not  believe  that  the  mover  intended  to  make 
this  prediction  history  that  this  court  of  appeals 
would  break  down  in  eighteen  months.  But  Mr. 
J.  believed  lhat  such  would  be  its  effect. 

Mr.  STRONG  here  moved  a  recess.     Agreed  to. 

AFTERNOON  SESSION. 

The  President  presented  a  report  from  the 
Comptroller  in  answer  to  the  call  made  on  him 
a  few  days  since  by  a  resolution  of  Mr.  CHAM- 
BERLAIN, showing  the  amount  of  state  stocks 
outstanding,  and  the  several  purposes  for  which 
they  were  issued. 

On  motion  of  Mr.  J.  J.  TAYLOR,  it  was  refer- 
red to  the  committee  of  the  whole  having  charge 
of  the  report  of  committee  No.  3,  of  which  Mr. 
HOFFMAN  was  chairman. 

The  pending  question,  as  announced  by  the 
Chair,  was  on  the  proposition  of  Mr.  MARVIN, 
which  was  offered  at  the  morning  session. 

Mr.  MANN,  to  get  at  a  vote,  moved  the  previ- 
ous question. 

This  was  seconded. 

The  question  was  taken,  and  Mr.  MARVIN'S 
proposition  was  negatived,  ayes  12,  noes  64. 

Ivir.  SIMMONS  moved  to  reconsider  this  vote. 
He  was  sure  that  this  question  had  been  taken  in 
too  much  of  a  hurry.  (Laughter.) 

A  VOICE  :  Have  not  we  been  in  too  great  a 
hurry  all  the  way  along.  (Laughter.) 

Mr.  SIMMONS  hoped  that  gentlemen  would 
allow  the  vote  to  be  reconsidered  ;  it  was  a  pro- 
position which  he  regarded  as  necessary  to  the 
safely  of  the  system. 

ivn.  6fRuNG:  Well,  there  !  lei's  have  it,  at 
once — (laughter) — let's  have  unanimous  consent 
on  to  it,  at  once — and  settle  it  whilst  we  got  our 
minds  <,n  to  if. 

Several  members  objected,  and  the  reconsidera- 
tion, of  course,  was  laid  over. 

CODIFICATION  OF  THE  LAWS 
Mr.  WHITE  offered  the  following: 
§  — .  The  Governor  of  the  state,  at  the  first  session  of  the 
Legislature,  alter  the  adoption  of  this  Constitution,  shall, 
by  and  with  the  advice  au.l  consent  of  the  senate,  appoint 
five  commissioners,  whose  duty  it  shall  be,  as  far  as  practi- 
cable and  expedient,  to  reduce  into  a  written  and  system- 
atic code,  the  laws  of  this  state,  and  also  the  civil  and  cri- 
minal procedure.  The  said  commissioners  shall  specify 
such  amendments  and  alterations  therein  as  they  shall 
deem  proper,  and  they  shall  from  time  to  time,  when  re- 
quired, make  reports  of  their  proceedings  to  the  Legisla- 


ture,  And  if  iound  to  be  practicable  and  expedient,  the 
said  commissioners  shall  provide  for  the  abolition  of  the 
listinct  torms  of  action  at  law  now  in  use-,  and  that  justice 
!)t?  administered  in  all  civil  cases  in  an  uniform  mode  of 
pleading,  without  reference  to  the  distinction  between  law 
nd  equity. 

^  — .  At  the  first  session  of  the  Legislature  after  the  adop- 
ion  of  this  Constitution,  and  from  time  to  tirm;  th^realter, 
as  may  be  necessary,  provision  shall  be  made  by  law  for 
filling  vacancies  and  for  regulating  the  tenor  of  office  and 
compensation  of  the  said  commissioners.  And  the  said 
code  shall  be  published  prior  to  its  being  presented  to  the 
Legislature  for  adoption. 

Mr.  BAKER  rose  to  a  point  of  order;  viz:  that 
this  subject,  having  already  been  referred  to  a  se- 
lect committee  of  the  whole,  it  was  not  in  order 
to  consider  it  at  this  time. 

Mr.  WHITE  said  that  the  subject  matter  of 
these  sections  had  not  been  referred.  It  was  a 
different  proposition  that  had  been  referred. 

Mr.  BAKER  said  (hat  he  was  aware  that  some 
additions  had  been  made  to  the  original  proposi- 
tion, but  still  he  contended  that  the  main  subject 
had  been  referred. 

The  PRESIDENT  decided  thai  the  proposition 
was  now  in  order. 

Mr.  CROOKER  said  that  he  was  not,  by  any 
means  satisfied  with  the  proposition  of  Mr  WHITE, 
in  (he  shape  in  which  it  now  was  placed.  He  de- 
sired to  have  the  general  Statute  Law  revised; 
whether  it  was  done  by  the  commissioners  ap- 
pointed by  the  Governor,  or  in  some  other  way, 
was  not  material;  it  ought  to  be  done;  and  the 
commissioners  ought  to  be  tied  down  to  that  duty, 
lie  also  desired  to  have  another  commission  to 
simplify  and  cheapen  the  practice  and  the  pro- 
ceedings in  the  courts  of  record  ;  and  he  would 
also  tie  that  commissioner  down  to  that  point.— 
Again,  he  would  have  a  third  commissioner  for 
the  purpose  of  revising  the  laws  in  reference  to 
town  and  county  affairs.  The  former  revisers  of 
the  statutes  of  this  State,  though  they  were  able, 
skilful,  and  well  qualified  to  revise  the  general 
laws  of  the  State,  had  mystified  rather  than  sim- 
plified the  local  laws  of  every  day  applications. — 
He  here  alluded  to  the  highway  acts,  the  laws  re- 
lating to  common  schools,  &c.;  there  were  four- 
fifths  of  these  laws  more  than  there  ought  to  be. 
We  ought  to  have  practical  men  to  revise  Ihese 
laws,  and  when  a  proposition  having  some  such 
objects  as  these  in  view,  should  be  presented  here, 
he  would  go  for  it  ;  it  should  have  his  vote  and 
hearty  support.  Although,  after  all,  it  might, 
perhaps,  be  better  to  turn  this  whole  subject  over 
to  the  Legislature. 

Mr.  NICOLL  said  he  fully  appreciated  the  dis- 
position of  the  Convention  to  bring  this  protract- 
ed discussion  on  the  judiciary  to  a  close.  That 
however  important  he  might  think  the  proposi- 
tion now  under  consideration — and  in  his  judg- 
ment it  was  in  that  respect  second  to  no  subject 
which  had  been  or  would  be  brought  before  the 
Convention — he  could  not  under  the  present  feel- 
ing of  the  House  venture  to  take  up  their  time 
with  any  extended  remarks.  The  subject  was 
one  which  ought  not  to  be  passed  over  with  a 
hasty  and  imperfect  discussion.  Rather  than  be 
compelled  to  treat  so  great  a  subject  of  reform* 
in  so  unworthy  a  manner  he  preferred  to  let  it  iro 
before  the  Convention  to  meet  with  its  fate  what- 
ever it  might  be — trusting  that  there  might  be 
here  such  a  conviction  of  its  necessity  as  shouM 


839 


induce  members  to  give  their  votes  in  its  favor; 
in  doing  so  they  risked  nothing.  The  proposi- 
tion was  simply  to  direct,  an  effort  to  be  made  to 
•e  into  a  systematic  code  the  great  body  of 
\v  <>('  this  state  ;  that  law  which  governs  the 
ie.  in  their  daily  relations  and  which  they 
are  required  and  at  their  p>eril  bound  to  know : 
that  law  which  is  only  to  be  found  in  the  de- 
cisions of  the  courts — too  often  confused  and  con- 
flicting— scattered  through  more  than  a  thousand 
volumes— inaccessible  but  to  a  few,  and  by  them 
incapable  of  being  mastered  except  after  the  la- 
bor of  life.  He  knew  it  had  been  said  again  and 
a^ain  that  this  could  not  be  done,  but  if  the  ques- 
tion were  to  be  decided  upon  the  weight  of  au- 
thority he  would  assert  and  without  fear  of  con- 
tradiction that  of  the  eminent  men  who  had 
thought  and  written  or  spoken  upon  the  subject, 
the  preponderance  was  vastly  in  favor  of  those 
who  had  advocated  this  great  reform.  A  reform 
like  this  which  should  strike  at  the  root  of  the 
evil  was  in  his  judgment  imperatively  demanded. 
The  Convention  could  ask  for  no  greater  triumph 
than  to  have  it  said  of  them  that  they  had  at  least 
directed  the  attempt  to  be  made  to  bring  about  so 
praiseworthy  a  reform.  Mr.  NICOLL,  said  that 
under  the  very  evident  and  indeed  excusable  anx- 
iety of  the  Convention  to  bring  the  debate  to  a 
close  he  would  not  detain  them  with  any  further 
remarks. 

Mr.  PATTERSON  said  that  before  he  voted  on 
this,  proposition,  to  direct  the  Governor  to  appoint 
these  commissioners  to  codify  the  laws,  he  wish- 
ed to  know,  if  it  was  possible,  the  number  of  vol- 
umes which  this  code  would  be  likely  to  run 
through.  It  had  been  suggested  to  him '(Mr.  P.) 
that  a  code  of  our  written  and  unwritten  laws 
would  extend  through  15  or  20  volumes. 

Mr.  NICOLL  said  that  it  was  utterly  impossi 
ble  to  speak  with  any  degree  of  certainty  or  pre- 
cision as  to  the  extent  of  a  code  like  the  one  con- 
templated. The  code  Napoleon  embraced  about 
»  articles,  and  was  comprised  in  1  vol.  about 
the  size  of  one  of  the  volumes  of  the  rev.  statutes. 
The  law  now(written  or  unwritten)spread  through 
3,OUU  vols. ! 

Mr.  PATTERSON  said  that,  then  he  though 
that  at  all  events,  knowing  as  little  as  we  did 
about  the  extent  of  such  a  work,  that  this  section 
instead   of  being   obligatory   on   the   legislature 
should  be  only  permissive. 

Mr.  PERKINS  said  that  in  his  opinion  we  had 
gone  on  legislating  here  long  enough,  under  th 
title  of  a  Judiciary  Report  ;  now  it  was  ver) 
rable  that  we  should  wind  this  matter  straight 
up — close  it  up  and  iix  it;  and  so  he  moved  th< 
previous  question  on  the  Judiciary  Report, and  01 
belonging  to  all,  and  the  matters  relating  to  it. 

Mr.  NICHOLAS  thought  this  question  had  bet 
ter  be  left  with  the  legislature — for  this  code,  i 
formed,  must  be  made  under  the  direction  of  th< 
legislature.     He  did  not  doubt  the  right  of  the 
4ature  to  appoint  suitable  persons  to  form  th< 
s  into  a  code,  and  should  this  work  be  deem 
ed  expedient,  it  would  be  commenced  and  tinish 
ed  when  the  people  required  it,  and  their  repre 
sentatives  could  best  judge  when  the  proper  tune 
arrived  to  undertake  it. 

Mr.  CHATFIELD  said  that  as  it  was  eviden 
that  the  previous  question  was  to  be  sprung  upon 


his  and  all   other  propositions,   perhaps  it  had 
>etter  be  withdrawn. 

Mr.  WHITE  withdrew  his  proposition. 

Mr.  O'CONOR  asked  Mr.  PERKINS  to  with- 
raw  his  motion  for  the  previous  question,  to  al- 
ow him  to  make  a  single  remark. 

Mr.  PERKINS  did  so. 

Mr.  O'CONOR  then  suggested  that  thisjudi- 
iary  article  should  be  printed,  as  it  had  been 
mended,  and  laid  upon  their  tables  before  pass- 
ng  finally  upon  it,  as  had  been  done  with  all  the 
eports  which  had  been  previously  passed. 

Mr.  PERKINS  said  that  they  had  better  finish 
he  thing  and  get  it  out  of  the  way  at  once.  For 
e  was  quite  sure  that  unless  they  disposed  of  this 
article  right  away  forever,  whenever  it  should  be 
called  up,  by  and  by,  there  would  be  just  as  big  a 
lumber  of  legislative  propositions  as  have  al- 
eady  been  introduced. 

Mr.  PERKINS  sat  down,  and  forgot  to  renew 
lis  motion  for  the  previous  question. 

Mr.  HARRIS  said  that  some  days  since  he  had 
ntirnated  his  intention  to  move  a  section  which 
was  designed  to  carry  out  another  great  reform 
which  he  regarded  as  not  at  all  of  inferior  import- 
ance to  any  of  those  already  inserted  in  this  arti- 
le.  He  (Mr.  H.)  was  fully  persuaded  that  what- 
ever judicial  force  we  might  provide  here,  that  it 
would  prove  insufficient  unless  they  were  connec- 
;ed  with  some  valuable  measure  of  legal  reform. 
Now  various  modes  have  been  suggested  to  effect 
this  object,  but  none  of  them  appeared  to  be  ad- 
equate to  effect  the  end  in  view.  And  in  short 
it  would  only  be  effectually  carried  out  by  a  co- 
operation between  the  judiciary  and  the  Legisla- 
ture ;  and  therefore  with  a  view  to  secure  this, 
which  he  believed  to  be  a  most  valuable  object, 
he  would  move  the  following  additional  section  : 

5)  5.  A  chief  justice  of  the  supreme  court  shall  be  chosen 
by  the  electors  of  the  state,  who  shall  hold  his  office  for  — 
y«ars.  He  may  perform  any  of  the  duties  of  a  judge  of  the 
court  of  appeals  or  a  justice  of  the  supreme  court.  Ho 
shall  subject  to  the  power  of  the  legislature  to  alter  or 
change  the  same,  prescribe  s"uch  rules  and  forms  of  prac- 
tice of  the  supreme  court  and  all  subordinate  courts  as 
shall  tend  effectually  to  simplify  the  practice  and  reduce 
the  expense  of  proceedings  in  said  courts.  And  to  this  t  nd 
he  shall  report  annually  to  the  legislature  and  recommend 
such  action  as  he  may  deem  necessary. 

Mr.  CHATFIELD  offered  the  following  substi- 
tute : — 

{5  — .  The  legislature,  at  its  first  session  after  the  adoption 
of  this  Constitution,  ^hall  provide  by  law  for  the  appoint- 
ment of  three  commissioners,  whose  duty  it  shall  be  to  re- 
vise, reform,  simplify  and  abridge  the  rules  of  practice, 
pleadings,  forms  and  proceedings  of  the  courts  of  record 
of  this  state,  and  to  report  thereon  to  the  legislature. 

Mr.  NICOLL  moved  to  amend  the  substitute  by 
adding  the  following : 

The  commissioners,  if  practicable,  shall  provide  for  the 
abolition  of  the  various  forms  of  actions  at  law  now  in 
use,  and  that  justice  be  administered  in  all  civil  cases  in 
a  uniform  mode  of  pleading  without  reference  to  the  dis- 
tinction of  law  and  equity. 

Mr.  JORDAN  said  that,  as  far  as  he  could  re- 
collect, this  subject  had  already  been  acted  upon. 

Mr.  PATTERSON  said  that  it  had  actually 
been  acted  on  in  substance,  some  four  or  five  days 
ago. 

Mr.  MANN  wished  to  ask  the  gentleman  from 
Albany,  (Mr.  HARRIS)  if  he  designed  to  elect  a 
judge  who  should  have  power  to  make  fttws  ? — 
This  power  should  most  certainly  be  put  under 


840 


the  control  of  the  Legislature,  and  not  of  that  of 
any  one  man. 

Mr.LOOMIS  said  that  he  supposed  thegentleman 
expected  that  this  constitution  would  be  adopted; 
very  well  ;  and  taking  that  for  granted,  if  it  was 
adopted,  we  shall  have  taken  a  very  great  stride 
towards  the  important  object  v\hich  the  gentle- 
man (Mr.  HARRIS,)  and  all  of  us  had  in  view, 
viz  :  the  simplification  and  cheapening  of  legal 
practice  and  proceedings.  He  had  this  great  re- 
form much  at  heart,  but  he  could  never  consent 
to  give  to  any  one  individual  the  power  to  pre- 
scribe these  reforms.  Because  the  true  way  to 
accomplish  it  was,  through  a  commissioner, 
whose  proceedings  should  be  subject  to  the  re- 
vision and  control  of  the  legislature.  He,  (Mr. 
L.)  never  would  consent  to  commit  the  vast  pow- 
er over  this  whole  subject  to  the  hands  of  any 
one  man  or  to  any  three  men  ! 

Mr.  O'CONOR  said  that  this  whole  subject  had 
already  been  referred  to  a  committee  ;  that  com- 
mittee had  reported  ;  and  that  report  was  already 
before  a  committee  of  the  whole.  He  therefore, 
moved  to  lay  all  these  propositions  on  the  table. 

Mr.  O'CONOR  withdrew  it  however,  at  the  re- 
quest of  Mr.  HARRIS. 

Mr.  HARRIS  said  that  he  regarded  this  move- 
ment or  proposition,  as  an  evident  intention  to 
give  this  important  subject  the  go  by.  He  would 
desire  very  much  to  urge  on  the  convention,  the 
magnitude  and  importance  of  this  subject,  and 
the  absolute  necessity  for  some  action  on  it,  on 
the  part  of  this  convention  if  we  were  ever  to 
look  after  or  to  expect  anything  like  substantial 
legal  reform. 

Messrs.  STETSON,  PATTERSON,  and  KIRK- 
LAND  continued  the  debate. 

Mr.  KIRKLAND  said  he  would  suggest  the 
following  section  : 

(j  —  With  a  view  to  diminish  costs  and  expenses,  to 
abolish  injurious  and  useless  forms,and  to  promote  justice, 
the  governor  shall  without  delay,  appoint  three  commis- 
sioners whose  duty  it  shall  be  to  prepare  and  report  a  code 
for  the  simplification  of  tue  pleadings,  proceedings  and 
practice  in  the  courts  of  this  state.  The  said  code  shall  be 
submitted  to  a  board  composed  of  commissioners,  and  of 
the  judges  of  the  court  of  appeals;  and  the  same,  or  so 
much  thereof  as  shall  be  approved  by  a  majority  of  said 
board,  shall  be  filed  in  the  office  of  the  Secretary  of  State, 
and  shall  thereafter  govern  the  pleading,  proceedings  and 

Eractice  in  said  courts,  subject,  however,  to  alteration  by 
iw. 

Messrs.  STOW  and  NICOLL  continued  the  de- 
bate, when 

Mr.  BERGEN  moved  the  previous  question. — 
Seconded. 

Mr.  NICOLL'S  amendment  was  negatived,  35 
to  51,  as  follows: 

AYES— Messrs.  Archer,  F.  F.  Backus,  H.  Backus,  Bas- 
com,  Bouck,  Chatfield,  Clark,  Cornell,  Crocker,  Cudde- 
back,  Dana,  Dorlon,  Dubois,  Flanders,  Harrison,  Hutchin- 
son,  Loomis,  Mann,  Nicoll,  O'Conor,  Porter,  St.  John, 
Salisbury,  Salisbury,  Sheldon,  W.  H.  Spencer,  Stephens, 
Taft,  Townsend,  Waterbury,  White,  "VVillard,  Wood,  A. 
Wright,  Young,  Youngs— 3d. 

NOES— Messrs.  Allen,  Angel,  Ayrault.  Baker,  Bergen, 
Bowdish,  Brayton,  Bruce,  Burr,  Cambreleng,  Danforth, 
Gardner,  Graham,  Harris,  Hawley,  Hoffman  Hotchkiss, 
Hunter,  A.  Huntington,  Hyde,  Jordan,  Kemble,  Kernan, 
Kirkland,  McNitt,  Marvin.  Maxwell, Miller,  Munro,  Nich- 
olas, Parish,  Patterson,  Perkins,  Powers,  President, Russeil, 
Sanford  Snaver,  Simmons,  E.  Spencer,  Stanton,  Stetson, 
Stow,  J.  J.  Taylor,  Tuthill,  Ward,  Worden.W.  B.  Wright, 
Yawger— 51 


Mr.  CHATFIELD'S  substitute  was  adopted, 
ayes  64,  noes  18,  as  follows  : 

AYES— Messrs.  Allen,  F.  F.  Backus,  H.  Backus,  Baker, 
Bergen,  Burr,  Cambrelen-g,  Chatfield,  Clark,  Clyde.  Cor- 
nell, Crooker,  Cuddeback,  Dana,  Danforth.  Dorlon,  Du- 
hois,  Flanders,  Gebhard,  Graham,  Harr.son,  Hoffman 
Hotchkiss,  Hunter,  A.  Huntington,  Hutchinson,  Jordan, 
Kemble.Ketnan,  Kirkland,  Loomis,  Mann,  McNitt,  Mar- 
vin, Maxwell,  Munro,  Nicoll,  O'Conor,  Parish  Porter. 
Powers,  Rhoades,  Riker,  St.  John,'  Sheldon,  E.  Spencer, 
W.  H.  Spencer,  Stanton,  Stephens,  Stetson,  Stow,  Taft, 
T.  J  Taylor,  Townsend,  Tuthill,  Ward,  Waterburv 
White,  Willard,  Wood,  A.  Wright,  Yawger,  Young. 
Youngs— 64. 

NOES— Messrs.  Angel,  Bowdish,  Brayton,  Bruce.  Gar- 
dner, Hawley,  Hyde,  Miller,Nicholas.  Patterson.  Perkins, 
President,  Salisbury,  Sanford,  Siramons.Warren,  Worden 
W.  B.  Wright— 18. 

Mr.  JORDAN  moved  that  there  be  added  to 
the  section  "  subject  to  their  adoption  and  modi- 
fication from  time  to  time."  Agreed  to. 

Mr.  RHOADES  moved  a  substitute  for  the  sec- 
tion giving  to  the  legislature  power  to  provide  for 
the  revision  of  the  practice,  g&c.  of  the  courts. — 
Ruled  out  of  order. 

The  section  adopted  by  substitution  was  then 
agreed  to  as  amended. 

Mr.  HARRIS  moved  the  question  on  the  re- 
consideration of  the  9th  (now  10th  section  which 
is  as  follows  : — 

(jlO.  The  testimony  in  equity  cases  shall  b«  taken  in 
like  manner  as  in  cases  at  law.  The  offices  of  masters  and 
examiners  in  chancery  are  hereby  abolished. 

After  a  few  remarks  from  Messrs.  HARRIS  and 
JORDAN  the  motion  was  negatived. 

Mr.  STRONG  moved  the  reconsideration  on 
the  section  adopted  last  night,  authorizing  ap- 
peals. Carried,  36  to  35. 

Mr.  BAKER  moved  to  amend  by  inserting  the 
words  of  "  of  record"  after  the  word  "  court." — 
Agreed  to. 

Mr.  PERKINS  moved  to  strike  out  the  words 
"  in  a  city."  Lost. 

The  section  as  amended  was  adopted. 

Mr.  WATERBURY  called  up  his  section,  dej 
claring  every  elector  eligible  to  judicial  office. 

Mr.  JORDAN  moved  to  lay  the  section  on  the 
table.  Agreed  to. 

Mr.  JORDAN  (the  whole  article  being  gone 
through  with)  moved  that  the  same  be  laid  aside 
and  be  agreed  to. 

The  entire  article  on  the  subject  of  the  judi- 
ciary, as  perfected,  is  as  follows: 

ARTICLE  . 

§  1.  The  A  ssembly  shall  have  the  power  of  Impeachment 
by  the  vote  of  a  majority  ol  all  the  members  elected.  The 
court  for  the  trial  of  irepeachments,  shall  be  composed  ol 
:he  president  of  the  Senate,  the  Senators  or  a  major  part  of 
them  and  the  judges  of  the  court  of  appeals,  or  the  major 
part  of  them.  On  the  trial  of  an  impeachment  against  the 
Gtovernor,  the  Lieut.  Governor  shajl  not  act  as  a  member 
of  the  court  No  judicial  officer  shall  exercise  his  office 
after  he  shall  have  been  impeached,  until  his  acquittal. — 
Before  the  trial  of  an  impeachment,  the  members  of  the 
court  shall  take  an  oath  or  affirmation  truly  and  impartially 
to  try  the  impeachment,  according  to  evidence,  and  no 
person  shall  be  convicted  without  the  concurrence  of 
:wo-thirds  of  the  members  present.  Judgment  in  cases  ot 
impeachment  shall  not  extend  lurther  than  to  removal 
rom  office,  or  removal  from  office  and  disqualification  to 
lold  and  enjoy  any  office  of  honor,  trust  or  profit  under 
this  state;  but  the  patty  impeached  shall  be  liable  to  in- 
dictment, and  punishment  according  to  law. 

§2  There  shall  be  a  court  of  appeals,  composed  of  eight 
ud'ges  of  whom  four  shail  be  elected  by  the  electors  of  the 
state  for  eight  years,  and  four  selected  from  the  class  of  jus- 
.ices  of  the  supreme  court  having1  the  shortest  time  to  serve. 
"revision  shall  be  made  by  law," lor  designating -one  of  the 


841 


number  clivted,  us  chief  judge,  and  lor  selecting  such  jus- 
I  ;hc  Supn-iiu-  r.ourt,  from  time  to  time,  and  lor  so 
:vu.g  tnose  elected,  that  one  shall  be  elected  every 
i  year. 

§  3.  There  shall  be  a  Supreme  Court  having  general  ju- 
tion  in  law  and  equity. 

The  Siato  shall  bo  divided  into  eight  judicial  dis* 
trictu,  of  which  this  city  of  New  York  shall  be  on*.  The 
others  to  be  hounded  by  county  lines;  and  to  be  compact 
•jnal  in  population  as  nearly  as  may  be.  There  shall 
bo  fo  ir  justices  ui  tue  Supreme  Court  in  each  district,  and 
as  muny  more  in  the  district  composed  of  the  city  of  New 
York,  as  may  trom  time  to  time  be  authorized  by  law,  but 
not  to  exceed  in  the  whole  such  number  in  proportion  to 
its  population,  as  shall  be  in  conformity  with  the  number 
of  such  judges  in  the  residue  of  the  state  in  proportion  to 
its  population.  They  shall  be  classified  so  that  one  of  the 
justices  of  each  district  shall  go  out  of  office  at  the  end  oJ 
every  two  years,  after  the  expiration  of  their  terms  under 
such  classification.  The  term  of  their  office  shall  be  eight 
years. 

§  5.  The  legislature  shall  have  the  same  powers  to  alter 
and  regulate  the  jurisdiction  and  proceedings  in  law  and 
equity,  as  they  have  heretofore  possessed. 

§  6  Provision  may  be  made  by  law  for  designating  from 
time  to  time  one  or  more  of  the  said  justices  who  is  not  a 
judge  of  the  Court  of  Appeals  to  preside  at  the  general 
terms  of  the  said  court  to  be  held  in  the  several  distiicts. 
Any  three  or  more  of  the  said  justices,  of  whom  one  of  the 
said  justices  so  designated  shall  always  b<-  one,  may  hold 
such  general  term.  And  any  one  or  more  of  the  justices 
m;iy  hold  special  terms  and  circuit  courts,  and  any  one  of 
them  may  preside  in  Courts  of  Oyer  and  Terminer  in  any 
county. 

§  7.  They  shall  severally  at  stated  terms,  receive  for 
their  services  a  compensation  to  be  established  by  law; 
but  the  salary  of  no  judge  of  the  Court  of  Appeals  or  Jus 
tice  of  the  Supreme  Court  shall  be  increased  or  diminish' 
ed,  during  his  continuance  in  office. 

§  8.  They  shall  not  hold  any  other  office  or  public  trust. 
All  votes  for  either  of  them  lor  any  elective  office,  (ex- 
cept that  of  Justice  of  the  Supreme  Court,  or  Judge  of  the 
Court  of  Appeals,)  given  by  the  legislature  or  the  people, 
shall  be  void.  They  shall  not  exercise  any  power  of  ap- 
pointment to  pui  lie  office.  Any  male  citizen  of  the  age 
of  twenty -pne  years,  of  good  moral  character,  and  who 
possesses  tne  qualifications  of  learning  and  ability,  shall 
be  entitled  to  admission  to  practice  in  all  courts  of  this 
State. 

^  9.  The  classification  of  the  justices  of  the  Supreme 
Court;  the  times  and  place  of  holding  the  terms  of  the 
Court  of  App  als,  and  of  the  general  and  special  terms  of 
thr  Supreme  Court  within  the  several  districts,  and  the 
Circuit  Courts  and  Cour  s  of  Oyer  and  Terminer  within 
.  oral  counties,  shall  be  provided  for  by  law. 

§  10  The  testimony  in  equity  cases  shall  be  taken  in 
like  manner  as  in  cas'es  at  law.  The  offices  of  Master  and 
ilxamiuer  in  Chancery  are  hereby  abolished. 

§11.  Justices  of  the  Supreme  Court  and  Judges  of  the 
Court  of  Appeals,  may  be  removed  by  concurrent  resolu- 
tion of  both  houses  of  the  legislature,  if  two-thirds  of  all 
the  members  elected  to  the  Assembly,  and  a  majority  of 
all  members  elected  to  the  Senate  concur  therein.  All 
judicial  officers,  except  those  mentioned  in  this  section, 
-,-cpt  Justices  of  the  Peace,  may  be  removed  by  the 
Senate,  on  the  recommendation  of  the  Governor;  but  no 
removal  shall  be  made  by  virtue  of  this  section,  unless  the 
cause  thereof  be  enteied  on  the  journals,  nor  unless  the 
complained  of  shall  have  been  served  with  a  copy 
of  the  complaint  against  him,  and  shall  have  an  opportu- 
tunity  of  being  heard  in  his  defend;.  On  the  question  of 
removal,  the  ayes  and  noes  shall  be  entered  on  the  jour- 
nals. 

£j  12.  The  Justices  of  the  Supreme  Court  shall  be  elected 
iu  the  respective  judicial  districts  by  the  electors  thereof, 
at  such  time  as  may  be  prescribed  by  law,  but  the  first 
election  of  justices  of  the  Supreme  Court  after  the  adoption 
of  this  Constitution,  shall  be  held  at  least  forty  days  before 
the  general  annual  election  of  13 17. 

§  13.  In  case  the  office  of  any  judge  of  the  Court  of  Ap- 
peals or  justices  of  the  Supreme  Court  shall  become  va- 
cant before  the  expiration  of  the  regular  term  for  which  he 
•cted,  the  vacancy  may  be  filled  by  appointment  by 
tlie  (ijvernor,  until  it  shall  be  supplied  at  the  next  general 
election  of  judges,  when  it  shall  be  lilled  by  election  for 
the  residue  of  the  une\pired  term. 

^  14.  There  shall  be  elected  in  each  of  the  counties  of 
this  State,  except  the  city  and  county  of  New  York,  one 
county  judge,  who  shall  hold  his  office  for  four  years. 


The  county  j  udge  shall  hold  the  county  court,  perform  the 
duties  of  the  office  of  surrogate  and  such  other  duties  as 
may  be  prescribed  by  law.  'ihe  county  court  shall  have 
such  jurisdiction  of  causes  arising  in  justices'  courts  as 
shall  be  prescribed  by  law;  but  shall  hare  no  original  civil 
jurisdiction  except  in  special  cases  to  be  prescribed  by 
law. 

The  county  judge,  with  two  justices  of  the  peace,  may 
hold  courts  of  sessions  with  such  criminal  jurisdiction  as 
the  Legislature  shall  prescribe,  and  perform  such  other du- 
ties  as  may  be  required  by  law. 

The  cuunty  judge  shall  receive  an  annual  salary,  to  be 
fixed  by  the  board  of  supervisors,  which  shall  be  neither 
increased  nor  diminished  during  his  continuance  in  office. 
The  justices,  lor  services  in  courts  of  sessions,  shall  be 
paid  a  per  diem  allowance  out  of  the  county  treasury. 

In  counties  having  a  population  exceeding  forty  thou- 
sand, the  Legislature  may  provide  for  the  election  of  a 
separate  officer  to  perform  the  duties  of  the  office  of  surro- 
gate. 

The  legislature  may  confer  equity  jurisdiction  in  special 
cases  upon  the  county  judge.  Appeals  shall  lie  from  the 
county  court  and  court  ot  sessions  to  the  supreme  court, 
in  bane. 

Inferior  local  courts,  of  civil  and  criminal  jurisdiction 
may  be  established  by  the  legislature  in  cities;  and  surh 
courts,  except  for  the  city  of  New  York,  shall  have  an 
uniform  organization  and  jurisdiction  in  such  cities  res- 
pectively. 

§  15.  The  legislature  may  reorganize  the  judicial  dis- 
tricts, at  the  first  session  alter  the  return  of  every  enume- 
ration, under  this  Constitution,  in  the  manner  provided 
lor  in  section  four,  and  at  no  other  time;  and  they  may, 
at  such  session,  increase  or  diminish  the  number  of  dis- 
tricts, but  such  increase  or  diminution  shall  not  be  more 
than  one  district  at  any  one  time.  Each  district  shall  have 
four  Justices  of  the  Supreme  Court;  but  no  diminution  of 
the  districts  shall  have  the  effect  to  remove  a  judge  from 
office. 

$16.  The  electors  of  the  several  towns  shall,  at  their 
annual  town  meeting,  and  in  such  manner  as  the  legisla- 
ture may  direct,  elect  their  justices  of  the  peace.  Their 
term  of  office  shall  be  for  four  years.  Their  number  and 
classification  may  be  regulated  by  law. 

§  17  All  judicial  officers  of  cities  and  villages  and  all 
such  judicial  officers  as  may  be  created  by  law  therein, 
shall  be  elected  at  such  times  and  in  such  manner  as  the 
legislature  may  diiect. 

§  18.  The  clerks  of  the  several  counties  of  this  state 
shall  be  clerks  of  the  supreme  court,  with  such  powers 
and  duties  as  shall  be  prescribed  by  law.  A  clerk  for  the 
court  of  appeals  to  be  ex-officio  clerk  of  the  Supreme 
court,  and  to  keep  his  office  at  the  seat  of  government, 
shall  be  chosen  by  the  electors  of  the  state;  he  shall  hold 
his  offioe  for  three  yeais,  and  his  compensation  shall  bo 
fixed  by  law  and  paid  out  of  the  public  treasury. 

§  19.  No  judicial  officer,  except  justice  of  the  peace, 
shall  receive,  for  his  own  use,  any  fees  or  perquisites  of 
office. 

§  20.  The  legislature  may  authorize  the  judgments,  de- 
crees and  decisions  of  any  local  inferior  court  of  record  of 
original  civil  jurisdiction,  established  in  a  city,  to  be  re- 
moved for  review  directly  into  the  court  of  appeals. 

§  21.  The  legislature  shall  provide  for  the  speedy  publi- 
cation of  all  statute  laws,  and  of  such  judicial  decisions 
as  it  may  deem  expedient,  so  as  to  render  the  same  easy 
of  acquisition  by  the  people.  And  all  laws  and  judicial 
decisions  shall  be  free  for  publication  by  any  person. 

fj22.  Tribunals  of  conciliation  may  be  established,  with 
such  powers  and  duties  as  may  be  prescribed  by  law;  but 
such  tribunals  shall  have  no  power  to  render  judgment  to 
be  obligatory  on  the  parties  except  they  voluntarily  sub- 
mit their  matters  in  tiiiT'erence  and  agree  to  abide  the  judg- 
ment, or  assent  thereto  in  the  presence  of  the  tribunal  in 
such  cases  as  shall  be  prescribed  by  law. 

(5  23.  The  legislature  at  its  first  session  after  the  adoption 
of  this  Constitution,  shall  provide  by  law  for  the  appoint- 
ment of  three  commissioners,  whose  duty  it  shall  be  to  re- 
vise, reform,  simplify  and  abridge  the  rules  of  practice, 
pleadings,  forms  and  proceedings  of  the  courts  of  record 
of  this  State,  and  to  report  hereon  to  the  legislature,  sub- 
ject to  their  adoption  and  modification  Irom  time  to  time. 
§  -24  The  Legislature  at  its  first  session  after  the  adop- 
tion of  this  Constitution,  shall  provide  lor  the  organization 
of  the  court  of  appeals,  and  for  transferring  to  it  the  busi- 
ness pending  in  the  court  for  the  correction  of  errors,  and 
for  the  allowance  of  writs  of  errorjand  appeals  to  the  court 
of  appeals,  from  the  judgments  and  decrees  of  the  present 

80 


842 


court  of  chancery  and  supreme  court,  and  of  the  courts 
that  may  be  organized  under  this  constitution. 

§  25.  The  first  election  of  judges  of  the  court  of  appeals, 
justices  of  the  supreme  court,  and  judges  of  the  county 
courts,  shall  take  place  at  such  tune  as  may  be  prescribed 
by  law,  between  the  first  Tuesday  of  April  and  the  second 
Tuesday  of  June,  1847.  The  said  courts  shall  respective- 
ly organize,  and  enter  upon  then1  duties,  on  the  first  Mon- 
day of  July,  next  thereafter;  but  the  terms  of  office  of 
said  judges  and  justices  as  declared  by  this  Constitution, 
shall  be  deemed  to  commence  on  the  first  day  of  January, 
1848. 

§  26.  On  the  first  Monday  of  July,  1847,' jurisdiction  of 
all  suits  and  proceedings  then  pending  in  the  present  Su- 
preme Court  and  Courc  of  Chancery,  and  all  suits  and  pro- 
ceedings originally  commenced  and  then  pending  in  any 
Court  of  Common  Pleas,  (except  in  the  city  and  county  of 
New-York)  shall  become  vested  in  the  Supreme  Court 
hereby  established. 

§  27.  But  the  Chancellor  and  present  Supreme  Court 
shall  respectively  have  power  to  hear  and  determine  any 
of  such  suits  and  proceedings  then  ready  to  be  noticed  for 
hearing,  and  shall  for  their  services  therein  be  entitled  to 
their  present  rate  of  compensation  until  the  1st  day  of  Ju- 
ly, 1848,  or  until  all  such  suits  and  proceedings  shall  be 
sooner  heard  and  determined.  The  Supreme  Court  here- 
by established  shall  also  have  power  to  hear  and  deter- 
mine such  of  said  suits  and  proceedings  as  may  be  presen- 
ted by  law. 

§  28.  In  case  any  vacancy  shall  occur  in  the  office  of 
chancellor  or  justice  of  the  present  supreme  court,  previ- 
ously  to  the  1st  day  of  July,  1848,  the  Governor  may  nom- 
inate, and  Dy  and  with  the  advice  and  consent  of  the  Sen- 
ate, may  appoint  a  proper  person  to  fill  such  vacancy. — 
Any  judge  ol  the  court  of  appeals  or  justice  of  the  supreme 
court,  elected  under  this  article,  may  receive  and  hold 
such  appointment. 

§  29.  The  offices  of  chancellor;  justices  of  the  supreme 
court,  (except  as  herein  otherwise  provided);  circuit  and 
county  judges;  vice  chancellors;  assisting  vice  chancel- 
lor; supreme  court  commissioner,  and  masters  and  exami- 
ners in  chancery,  as  now  existing,  shall  expire  on  the  first 
Monday  of  July,  1847. 

§  30.  The  chancellor,  the  justices  of  the  present  supreme 
court,  and  the  circuit  judges,  are  hereby  declared  to  be 
sever  .illy  eligible  to  any  omce  at  the  first  election  under 
this  Constitution. 

Adjourned  to  83  o'clock  to-morrow  morning. 

FRIDAY,  (8Qth  day}  Sept.  11. 

Prayer  by  the  Rev.  Mr.  VAN  RENSSELAER. 

Mr-  GARDNER  presented  a  remonstrance  of 
the  trustees  of  Yates  Academy,  against  the  diver- 
sion of  the  Literature  Fund.  Referred  to  the 
committee  of  tne  whole  having  in  charge  the  re- 
port of  the  committee  on  education,  of  which  Mr. 
NICOLL  is  chairman. 

DEBATES. 

Mr.  CAMBRELENG  offered  a  resolution  pre- 
scribing as  a  general  rule,  that  whenever  tne  Con- 
vention shall  decide  that  all  debate  shall  cease 
upon  any  article,  at  any  particular  time,  or  upon 
any  amendment  thereto,  that  it  shall  not  be  in  or- 
der to  propose  or  debate  any  amendment  which 
had  not  previously  been  offered  in  some  form  ;  but 
the  question  on  any  such  amendment  that  was 
pending  shall  be  taken  without  debate.  He  had 
intended  this  resolution  in  order  to  obviate  the 
difficulties  in  which  the  Convention  ha  J  last  night 
found  itself,  in  consequence  of  the  decision  of  the 
chairman  pro  tern.,  (Mr.  PATTERSON  ) 

Mes*r*.  CAMBRELENG,  MURPHY,  PAT- 
TERSON, M  ARVIN,  SIMMONS,  &.C.,  had  a  per- 
sonal  explanation. 

The  resolution  was   referred  to  the   committee 

°D   ARRANGEMENT  OF  THE  CONSTITUTION. 

Mr.  CHATFIELD  called  up  his  resolution,  of- 
fered the  other  day,  relative  to  the  forming  of  a 


committee  in  order  to  arrange  several  articles  and 
amendments  to  the  present  Constitution. 

Mr.  KIRKLAND  said  that  there  wan  a  previ- 
ous resolution  of  Mr.  BRAYTON'S  on  the  same  sub- 
ject. 

Mr.  CHATFIEED  adopted  the  resolution  of 
Mr.  BRAYTON  as  a  substitute  for  his  own ;  to  form 
a  committee  to  arrange  the  several  articles  and 
sections  of  the  new  constitution  as  amended  and 
adopted — the  manner  and  form  in  which  the  con- 
stitution as  amended  and  adopted  shall  be  sub- 
mitted to  the  people — the  publication  of  the 
amendments  or  the  constitution  as  amended — the 
form  of  the  notice  of  the  election — and  the  form 
of  the  ballot. 

The  resolution  was  adopted,  and  the  chair  ap- 
pointed as  the  committee  the  following : — Messrs. 
CHATFIELD,  BRAYTON,  HOFFMAN,  JOR- 
DAN, NICOLL,  HARRIS,  W.  TAYLOR. 
REPORTS  NOT  YET  SENT  IN. 

Mr.  BAKER  offered  a  resolution  directing  the 
several  standing  committees,  which  have  not  yet 
reported,  to  bring  in  their  reports  on  or  before  the 
16th  inst. 

Laid  on  the  table  by  consent  of  the  member. 
EVENING  SESSIONS. 

Mr.  NICOLL  moved  that  evening  sessions  be 
held  on  and  after  the  17th  inst.  for  the  considera- 
tion of  the  report  of  the  committee  on  education. 

Laid  on  the  table. 

MESSENGER'S  PAY. 

Mr.  BASCOM  offered  the  following  resolution  : 

Resolved,  That  owing  to  the  length  and  numher  of  the 
daily  sessions  of  the  Convention,  the  compensation  allow- 
ed the  messengers  is  inadequate  to  the  value  of  their  servi- 
ces, and  that  the  secretaries  communicate  this  resolution 
to  the  next  Legislature  as  a  petition  from  this  body  that  the 
same  be  increased. 

Mr.  Sf  MMONS  hoped  this  resolution,  or  some- 
thing better,  would  be  adopted.  It  was  perfectly 
disgraceful  that  the  great  state  of  New-York 
should  cut  down  the  wages  of  any  body  to  so  low 
a  rate  as  50c.  a  day. 

Mr.  MANN  advocated  the  resolution. 

Mr.  RUSSELL  moved  to  add  "  door-keepers," 
but  finally  withdrew  it. 

The  resolution  was  adopted. 

Mr.  CROOKER  said  that  he  desired  to  call  the 
attention  of  the  Convention  to  an  article  that  ap- 
peared in  the  Tribune  a  few  mornings  since.  He 
felt  that  the  explanation  was  due  to  himself.  He 
had  figured  so  Irequently  of  Idle  in  the  remarks 
of  the  reporter  for  the  Tribune,  that  he  could  not 
allude  to  all  the  objectionable  matter  that  was 
personal  to  himself  that  was  contained  in  its  re- 
cent numbers.  He  should  refer  to  that  portion 
only  that  imputed  corruption  of  motive,  founded 
upon  a  direct  and  positive  falsehood.  And  it  was 
a  falsehood  at  which  he  (Mr.  C.)  was  the  more 
surprised,  because  the  reporter  for  the  Tribune 
was  informed  of  its  falsity  before  the  article  was 
written.  The  article  to  which  he  referred  was  as 
follows.  He  would  read  so  much  only  as  was  ne- 
cessary for  his  purpose  :— 

«<  When  Mr.  Strong  did  ihis,  lawyer  Crooker  rose  up, 
and  with  great  apparent  candor  advised  his  lc>Kal  brethren 
to  place  every  elector  of  the  State  on  the  same  platlorm 
with  themselves,  by  voting  for  Mr.  Strong's  motion.  This 
was,  for  the.  public  eye. 

»  While  advising  the  Convention  to  support  Mr.  Strong  s 
plain  and  sensiole  resolution,  Mr.  Crooker  secretly  advised 


843 


him  to  withdraw  it,  at  the  very  moment  when  it  was  like- 
ly to  pass,  and  to  present  in  its'  stead  the  resolution  which 
did  pass,  and  which,  Mr.  Crooker  drew  up,  though  Mr. 
Strong  presented  it. 

I  he  saw  the  honorable  gentleman  from  Mon- 
roe in  his  seat,  he  would'now  ask  him  (o  rise  in 
his  pljce  and  s.w  whether  he  (Mr.  C  )  had  secret- 
ly, or  in  any  other  way,  advised  him  to  withdraw 
anv  propos-iion  on  the  t-ubject  referred  to. 

Mr.  STRONG  rose  and  said  that  neither  Mr. 
CROOKER,  nor  did  any  other  man  advise  at  all 
upon  the  subject — that  he  did  not  know  from 
whom  the  section  offered  by  him,  in  lieu  of  his 
own,  had  come.  He  had  become  satisfied  that  his 
own  could  not  pass,  and  the  one  that  was  adopted 
was  put  into  his  hands,  and  thinking  it  better  and 
more  liberal  than  the  old  rule,  he  submitted  it  for 
his  own.  He  was  still  satisfied  his  own  would 
have  been  rejected,  and  it  was  so  shown  by  a  sub- 
sequent vote  of  the  Convention.  That  what  he 
had  done,  he  had  not  been  advised  by  the  gentle- 
man irom  Cattarangns  or  any  one  else. 

Mr.  CROOKER  then  said  he  would  call  upon 
every  member  of  the  Convention  to  rise  in  his 
place  and  say  whether  he  (Mr.  C.)  had  ever  had 
any  secret  or  other  conversation  with  them,  or 
any  one  of  them  on  the  subject.  No  one  rising, 
Mr.  CROOKER  continued.  He  had  all  his  life 
been  favorable  to  a  liberal  rule  in  relation  to  the 
admission  of  attorneys,  and  his  course  on  that 
subject  in  his  own  county  was  well  known.  The 
article,  so  far  as  it  imputed  unfriendliness  to  a 
liberal  admission  of  all  men  to  practice  in  our 
courts,  was,  as  far  as  he  was  concerned,  unfound- 
ed. When  Mr.  STRONG  first  introduced  his  sec- 
tion he  (Mr.  C.;  rose  and  implored  his  profess- 
ional brethr  n  a:-  an  act  of  magnanimity  to  vote 
for  it  in  a  body.  Subsequently,  finding  that  it 
could  not  pass,  he  drew  up  and  sent  to  the  gen- 
tleman from  Monroe  the  section  that  was  adopted. 
He  did  it  in  the  hope  and  belief  that  it  would  libe- 
ralize the  old  and  rigid  rule.  That  it  would  do 
away  with  the  seven  years'  study  now  required, 
and  admit  all  men  to  practice  in  all  our  courts, 
whenever  they  were  fitted,  if  they  became  so  in 
one  year  or  one  hour.  Had  it  not  been  for  the 
imputation  of  corrupt  intentions  so  grossly  and 
so  falsely  imputed  to  him,  he  should  not  now 
have  alluded  to  the  subject.  He  was  the  more 
restrained  by  the  fact  that  the  reporter  could  not 
appear  and  speak  on  this  floor.  The  denial  was 
an  act  of  justice  to  himself.  And  though  the  ar- 
ticle was  in  its  most  important  particulars,  he  felt 
compelled  to  say,  wilfully  false,  he  had  not  risen 
to  make  this  statement  from  any  unkindness  of 
feeling  towards  the  reporter  for  the  Tribune. 
H.iving  said  thus  much  here  ended  the  matter 
with  him. 

The  Convention  then  resolved  itself  into  com- 
littee  of  the  whole,  on  the  report  of  committee 

imber  three,   of  which  Mr.   HOFFMAN  is  the 

lairman,  on 

CANALS,  FINANCES,  &c. 
Mr.  W.  TAYLOR  was  called  to  the  chair. 

••cretan  read  the  first  section  as  follows  : 
1.  Alter  paying  the  expenses  of  collection,  superin- 
trn  ence  ana  ordinary  repairs,  [$1,&00,000]  one  million 
and  five  hundred  thousand  dollars  of  the  revenues  of  the 
state  canals  shall,  in  each  iiscal  year,  and  at  that  rate  for  a 
shorter  period,  commencing  on  the  first  day  of  June,  one 
thousand  eight  hundred  and  forty-six,  be  set  apart  as  a 


sinking  fund,  to  pay  the  interest  and  redeem  the  principal 
of  that  part  of  the  state  debt  called  the  Canal  Debt,  as  it 
existed  at  the  time  aforesaid,  and  including  three  hundred 
thousand  dollars  then  to  he  borrowed,  until  the  same  shall 
be  wholly  paid  >  and  the  principal  and  income  of  the  said 
sinking  fund  shall  be  sacredly  applied  to  that  purpose. 

Mr.  HOFFMAN  addressed  the  committee  at 
length  in  explanation  of  his  views  and  of  the  re- 
port of  the  committee. 

[The  length  of  his  remarks,  and  the  volumi- 
nous character  of  the  reports  and  tables  referred 
to  by  him,  render  their  insertion  at  this  point  im- 
practicable. They  will  be  found  at  the  close  of 
the  volume.] 

The  Comptroller  transmitted  an  answer  to  the 
resolution  as  to  the  sum  paid  for  the  support  of 
the  government  since  18 17,  and  from  what  source; 
which  was  ordered  to  be  printed. 

SATURDAY,  (81th  day}  Sept.  12. 

Prayer  by  the  Rev.  Dr.  WELCH.  ' 

Only  34  members  present  at  a  quarter  to  9. 

Returns  were  received  from  the  clerk  in  chan- 
cery of  the  second  circuit,  relative  to  moneys  de- 
posited in  that  court.  Referred  to  the  appropri- 
ate committee. 

Mr.  DANA  had  leave  of  absence  for  five  dayg. 

Mr.  TO WNSEND  offered  the  following : 

"  Resolved,  That  on  and  after  Tuesday  next,  this  Con- 
vention shall  hold  evening  sessions,  to  commence  at  half 
past  7  o'clock,  and  to  he  continued  every  evening  (Satur- 
days excepted)  for  the  purpose  of  considering  the  report 
of  the  committee  on  education,  &c." 

The  Convention  then  went  into  committee  of 
the  whole,  on  th'e  report  of  committee  No.  3. 
THE  FINANCES,  CANALS,  &c. 

Mr.  W.  TAYLOR  resumed  the  chair. 

Mr.  ARCHER  : — The  embarrassment  under 
which  I  labor,  in  attempting  to  address  this  com- 
mittee, every  gentleman  will  readily  understand 
by  recalling  to  himself  the  emotions  he  experi- 
enced in  his  first  attempt  to  speak  in  a  delibera- 
tive body.  Nor  is  my  embarrassment  relieved  by 
the  contemplation  of  the  magnitude  of  the  sub- 
ject before  us,  nor  when  I  reflect  upon  the  power 
and  ability  of  those  with  whom  I  may  be  brought 
in  conflict.  Nothing  but  an  imperative  sense  of 
duty  to  my  immediate  constituents  and  to  the 
state  at  large,  would  tempt  me  to  stand  torth  in 
this  debate  against  the  Ajax  Telamon  who  ad- 
dressed the  committee  yesterday,  supported  as  he 
is,  by  so  large  a  share  of  the  talent  of  this  body. 
I  have  not  had  the  assistance  of  the  Ulysses  of  the 
gentleman's  party,  and  the  clerks  in  a  department 
of  the  state  government,  in  furnishing  documents 
and  statistical  tables  prepared  with  great  care  and 
consummate  skill.  I  claim  not  to  be  able  to  meet 
these  gentlemen,  that  task  I  leave  for  those  whose 
legislative  or  other  experience  in  public  affairs, 
has  made  them  conversant  with  the  whole  sub- 
ject, and  eminently  fitted  them  to  grapple  with 
the  difficulties  with  which  it  is  surrounded. — 
What  I  shall  have  to  say,  will  be  merely  prelimi- 
nary ;  I  shall  riot  attempt  to  follow  the  gentle- 
man from  Herkimer  through  all  the  details  of  his 
elaborate  speech,  but  content  myself  with  a  sim- 
ple indication,  that  this  subject  is  susceptible  of 
being  viewed  in  other  lights  than  those  which 
have  been  presented. 


844 


To  prevent  misunderstanding,  let  me  in  the 
outset,  state  some  of  the  points  in  regard  to  which 
we  shall  not  differ  from  the  honorable  gentleman. 
We  agree  with  him  in  the  necessity  of  maintain- 
ing the  credit  of  the  state.  The  doctrine  of  re- 
pudiation, whether  direct  or  by  implication,  1 
can  assure  the  committee,  will  find  no  favor  on 
this  side  of  the  house.  The  faith  of  the  state 
must  be  preserved,  not  only  unimpaired,  but 
above  even  the  breath  of  suspicion.  That  body 
of  my  fellow  citizens  with  whom  it  is  my  pride 
to  be  associated  in  opinion  and  principle,  has 
ever  regarded  the  maintenance  of  public  faith, 
sacred  and  inviolate,  as  the  highest  obligation  of 
a  sovereign  people,  and  one  of  the  chief  corner 
stones  upon  which  rests  the  system  of  self  gov- 
ernment. 

Nor  shall  we  differ  with  him  in  respect  to  an 
increase  of  the  state  debt.  This,  we  think, ^  un- 
necessary, and  would  be  unwise  and  impolitic. — 
The  gentleman  will  find  those  disagreeing  with 
him  in  regard  to  the  leading  features  of  his  finan- 
cial policy,  as  anxious  as  himself,  that  ample 
provision  be  made  for  the  payment  of  the  entire 
debt,  and  this  too,  at  the  earliest  period  compati- 
ble with  the  ability  and  interests  of  the  state. 

There  was  a  time,  when  the  project  of  uniting 
the  great  lakes  with  the  Atlantic,  through  the 
Hudson,  was  deemed  chimerical,  Utopian  and  ab- 
surd. But  time  has  shown  the  futility  of  the 
doubts  and  iears  then  entertained,  and  placed  the 
fame  of  the  great  projector  on  an  imperishable 
basis.  I  will  not  now  undertake  to  prove  what  it 
may  become  necessary  hereafter  to  show,  that 
there  are  those — men  of  rank — men  in  whom 
public  confidence  has  been  largely  reposed,  who 
have  from  the  outset,  been  actuated  by  feelings 
of  secret  hostility  to  our  system  of  canals,  and 
through  whose  efforts,  serious  embarrassments 
have  arisen.  But  I  have  no  allusion  in  this  re- 
mark, to  the  honorable  gentleman  from  Herki- 
mer. 

Mr.  HOFFMAN.  It  would  not  be  true  if  you 
did. 

Mr.  ARCHER.  If  the  gentleman  from  Herki- 
mer  is  not  now  as  much  a  friend  to  internal  im- 
provements as  we  could  desire,  evidence  might  be 
adduced  from  his  own  recorded  opinions,  that  he 
has  been  in  times  past,  one  of  the  champions  of 
the  system,  disposed  to  go  as  far  as  the  farthest, 
in  securing  to  the  state  a  great  thoroughfare  for 
trade,  by  means  of  an  enlarged  canal. 

But  to  return  to  the  history  of  our  canal  policy. 
As  soon  as  the  Erie  and  Champlain  canals  were 
brought  into  full  operation,  all  saw  their  im- 
mense utility.  Of  those  who  had  opposed  their 
construction,  some  frankly  acknowledged  then 
mistake,  and  thence  forward  vied  with  its  earli- 
est friends  in  support  of  the  policy  ;  while  others 
nursed  their  spleen  in  secret,  ready  whenever 
opportunity  should  offer,  to  strike  a  blow  at  that 
system  which  had  so  completely  falsified  their 
predictions. 

From  the  rapid  increase  in  wealth  and  popula- 
tion of  the  immense  region,  opened  to  commerce 
by  the  Erie  canal,  many  saw  at  an  early  day,  thj 
necessity  we  should  soou  be  under,  to  extend  our 
accommodations  to  this  rapidly  increasing  com- 
merce. If  any  at  that  time  fell  into  a  mistake 
either  in  regard  to  the  time  in  which  such  facdi- 


ies   should    be   made,  or   the  extent  to  which 
hey  should  be  carried,  the   circumstances  then 
existing,  may  well  be  plead  in  palliation,  or  full 
excuse  of  the  erroneous  views   they  entertained. 
Vlany  things  conspired  to  stimulate  men  to  great 
indertakings.     Uninterrupted  prosperity  through 
a  series  of  years,  was  rapidly  filling  the  country 
with  wealth  ;  the  tide  of  emigration  was  continu- 
msly  rolling  westward,  filling  that  vast  and   fer- 
ile    region  with    an    enterprising    population 
tfhose  wants  must  be  supplied  from  the  Atlantic 
sea-board,  and  the   products  of  whose  industry 
ld  seek  a  market  through  the  same  channel. 
The  revenue  of  the  canals  had  exceeded  the  an- 
icipations  of  all  its  friends,    and  the  debt  incur- 
ed,  was  in  process  of  speedy  liquidation,  without 
laving  drawn  from  the   people  a  single  dollar  by 
axation,  or  embarrassing  in  the  least,  the   finan- 
cial  interests   of  the  state.     Stimulated   by  our 
example,  Pennsylvania  was   putting   forth    her 
mightiest  efforts  to  complete  a  system  of  improve- 
ments that  should  divide  with  us   the   carrying 
rade  of  the  Great  West.     Jealous  of  what  might 
be  the  effect  of  this  movement,   and   confident  of 
the  ability  of  the  state  to  carry  through  both  the 
system  of  lateral  canals  and   the   enlargement  of 
;he  Erie,  those  who  had  at  that  time  the  charge 
of  our  public  affairs,  engaged   in   those  arduous 
undertakings  perhaps  somewhat  prematurely,  or 
at  least,   suffered   them   to   be   carried   on   with 
greater  rapidity  than  the  strictest  prudence  would 
warrant.      Reliance    seems    also   to   have  been 
placed  on  means  for  these  purposes  to  be  derived 
from  the   general   government.     In  1830  a  com- 
mittee of  the  legislature  held  the  following  lan- 
guage :  "  Means  to  advance  this  object  may  also 
be  expected  with  confidence  from  another  quar- 
ter.    Shortly  the  national  debt  will  be   paid, 
when  the  surplus  revenue  of  the   United  States 
will  be  probably  divided  among  the   states   ac- 
cording to  the  ratio   of  their  representation. — 
Our  share  of  this  revenue  will  exceed  annually 
one  million  of  dollars.      And  it  is  by  no  means 
improbable  that  the  states  will  receive  also  por- 
tions of  the  avails   of   the   sales  of  the   public 
lands  ;  which  added  to  the  two  former  sources 
;of  revenue,  will  be  abundantly  adequate  to  con- 
struct all  the  works  of  internal  improvement  in 
•this  state  which  have  hitherto  attracted  public 
'attention." 

And  besides  the  commissioners  of  the  canal 
fund  repeatedly  expressed  the  opinion,  that  the 
revenues  of  the  canals  themselves,  would  be 
found  adequate  for  all  the  contempla'ed  works, 
and  warmly  commended  them  to  the  attention  of 
the  legislature  and  the  people  at  large.  In  Janua- 
ry, 1835,  a  report  was  made  to  the  legislature, 
(Assembly  Doc.,  No.  143,  pages  8,  9,  10,  11  and 
20)  from  which  I  will  read  : 

"But  it  to  secure  these  reduced  expenditures  and  tolls, 
improvements  and  the  enlargement  of  the  capacity  of  tue 
c  nal  be  neglected  or  long  delved,  the  business  ot  the 
country,  so  enlarged  and  rapidly  iiicreasiig,  will  exceed 
the  capacity  of  the  canal,  and  setking  new  and  rival 
routes,  it  will  with  the  tolls  from  it  be  lost  to  the  state." 

Again,  on  page  9  of  the  report,  alluding  to  the 
Erie  canal  : — 

«<  It  is  the  common  navigable  strait  between  the  Atlan- 
tic and  the  great  western  lakes,  and  by  position  designed 
to  accommodate  the  trade  and  travel  ot  the  enterprising 
and  rapidly  increasing  population  of  the  territory  border 


845 


ing  on  those  lakes  and  their  tributaries,  almost  illimitable 
in  extent,  and  inexhaustible  in  their  fertility.  The  neces 
sity  now  felt,  of  affording  increased  cnpaoi'y  to  the  canal, 
cast  ul'  SviMeuse,  will  in  a  t"\v  ye;u->  be  1  It  in  its  whole 
extent  ;  the  precise  period  may  be  disputed,  but  the  EVKNT 

IS  CKRTAl.N." 

On  page  Jo  : 

"Wlun  the  irregularities  of  trade  "are  considered,  the 
period  of  this  anticipated  excess,  appears  still  shorter. — 
It  is  known  that  the  necessities  of  trade,  agriculture  and 
manufactures  require  a  much  larger  transportation  in 
spring  and  autumn,  than  during  the  other  parts  <  f  the 
season  of  navigation.  In  part,  but  not  without  injury  to 
these  branches  of  industry,  it  may  be  delayed,  but  great 
delay  wouM  prove  fatal  to  the  revenue  and  business  of  the 
canal.  Agriculture,  manufactures  and  commerce,  rather 
than  submit  to  injurious  delays,  will  seek  and  find  other 
channels  of  transportation. 

1  It  therefore  appears  indispensable  that  the  water  of  the 
canal  should  be  widened  and  deepened,  and  the  locks  ex- 
tended, &c  " 

I  ought  to  ask  pardon  of  the  committee  for  de- 
taining them  so  long  in  reading  these  lengthy  ex- 
tracts ;  my  apology  is,  the  forciblene:?s  and  just- 
ness of  the  views  presented  ;  besides  the  SOURCE 
from  which  they  emanated,  entitles  them  in  a 
peculiar  degree,  to  the  patient  attention  of  this 
body.  I  will  read  the  concluding  portion  of  the 
report  : — 

"  If  in  the  spirit  of  an  enlightened  and  liberal  policy 
adequate  capacity  shall  beaftbrded  to  the  canal,  our  we^t- 
em  Brethren  will  be  accommodated  and  their  comforts  in- 
creased, the  revenues  of  the  state  will  be  augmented  ;  a 
rich  and  increasing  commerce  will  excite  and  rewaid  the 
industry,  enterprise  and  skill  of  our  citizens,  in  agricul- 
ture, ar;s. and  commerce,  ana  the  state,  b\  affording  the 
utmost  facility  to  that  busy  intercourse  of  trade,  which 
improves  the  moral  and  social  relations  of  civili/ed  lie, 
•will  at  once  confer  on  its  own  citizens  the  most  lasting  bene- 
fits, and  on  all  others,  in  the  only  measure  in  which  a  bounti- 
ful Provi'Ien  :e  permits  states  to  do  them  good— -the  great- 
est  benefits  dirl  blessings.  Called  by  position  to  perform 
this  higli  a-i  I  .s..o;ed  duty,  the  state  will  perform  it.  in  the 
spirit  of  v  isdom.  The  commissioners  therefore,  respect- 
fully submit  to  ihe  legislature  that  provision  be  now  made, 
by  law,  for  all  improvements  in  the  canal,  which  the  leg- 
islature slnll  deem  necessary.  The  extent  of  these  once 
settled,  every  step  in  the  progress  will  be  uniform,  con-is- 
tent,  and  lead  to  the  desired  result.  The  limits  of  the  ca- 
nal once  prescribed  beyond  the  reach  of  probable  change, 
our  own  citizens  will  be  the  better  enabled  to  make  their 
contiguous  and  substantial  improvements,  and  direct  their 
energies  to  the  increase  of  their  wealth  and  substantial  hap 
piness.  The  citizens  of  other  states,  in  these  improvements, 
once  authorized,  will  find  a  perfect  guaianty,  that  the  pro- 
ducts of  their  industry,  through  this  canal,  will  always  find 
a  free  and  e^sy  transit  to  and  from  the  Atlantic  and  the 
Lakes— and  trade  ami  transportation  will  be  invited  to  it  by 
the  strong  inducement  ot  interest.  Signed  by 

'  S.  VAN  UKNSSELAER, 
M1CHAF.L  HOFFMA.N, 
S.  YOUNG. 
W.  C.  BOUCK, 
JONAS  EARLL,  Juw. 

Such  language  as  this  would  sound  somewhat 
extraoidmary,  it  uttered  by  a  member  of  this  Con- 
vention, yet  it  embodies  the  deliberate  opinions  oi 
men  eminently  distinguished  tor  their  ability,  and 
possessing  in  a  high  degree  the  confidence  of  their 
party. 

It  has  of  late  become  so  common  to  charge  the 
creation  of  the  Stale  d<-bt  upon  those  to  whom  it 
does  not  belong,  that  I  .shall  venture  still  lurtliar 
to  trespass  upon  your  patience,  in  presenting  other 
extract  showing  to  whom  the  credit  of  these  new 
impulses  properly  attaches.  (Assembly  Doc.  Is'o. 
334,  1835.) 

«•  The  Canal  Board  concur  in  the  opinion  expressed  in  the 
proceedings  referred  to,  (public  meeting  at  Utica.)  that  the 
rapidly  increasing  business  of  our  own  state  and  the  states 
of  <'  Ohio,  Indiana,  Illinois  and  Missouri,  and  the  territories 


lying  north  and  west  of  these  states,"  renders  it  necessary 
and  proper,  that  tin--  mean^  and  facilities  for  the  transpor- 
tation of  property  should  l>e  commensurate  with  tin:  wants 
of  that  fertile,  productive  and  rapidly  populating  region  of 
country."  (Page  2  ) 

"  The  Canal  Board  entertain  the  opinioii  that  an  enlarge- 
ment ol  the  Kiie  canal  would  he  in  all  respects,  the  best 
plan  to  accommodate  the  tmrir-portation  between  the  Hud- 
son riverand  the  western  lake-;.  (Page  G.)  It  is,  li<>\ve\  er, 
quite  certain  that  the  time  is  not  veiy  distant  when 
tional  facilities  will  be  necessary;  and  the  Canal  Board  take 
this  occasion  to  express  the  opinion  that  the  enlargement 
of  the  Kiie  canul  should  be  directed  at  the  present  session, 
of  the  legislature."  (Page  6.) 

Similar  opinions  were  expressed  by  the  varioiis 
state  officers,  both  prior  and  subsequent  to  the. 
times  above  referred  to.  In  1834  Si  5,  Gov.  JVIarcy 
recommended  the  Genesee  Valley  and  Black  River 
canals,  Erie  rail-road,  and  the  speedy  enlargement 
of  the  Erie  canal.  In  March,  1837,  the  Senate 
called  on  the  Canal  Board  by  resolution,  to  know, 
whether,  in  their  opinion,  it  would  not  be  lor  the 
interest  of  the  state  to  proceed  with  the  enlarge- 
ment of  the  Erie  canal,  so  as  to  finish  it  sooner 
than  was  contemplated  by  the  act  of  May  11, 1S35. 
They  replied  : 

"  Tt  is  the  opinion  of  this  Board  that  it  is  for  the  interest 
of  the  state  to  proceed  with  the  enlargement  of  the  Erie 
canal,  so  that  it  may  be  completed  sooner  than  was  con- 
templated by  the  act  of  May  11,  1835." 

They  still  thought  the  expense  would  not  ex- 
ceed the  estimates  made  in  1S35.  This  report  was 
signed  by  A.  C.  Flagg  and  others. 

These  were  not  mere  ephemei&l  views,  the  im- 
pulsive thoughts  of  ardent  minds.but  thesetiled  con- 
victions of  sober  minded  men,  and  not  less  true  to- 
day than  they  were  ten  years  ago,  although  their 
authors  may  have  seen  tit  to  change  front  in  the 
mean  time.  In  1S38,  the  canal  commissioners 
say,  (see  their  report  in  doc.  No.  61,  p.  22,)  -'that 
in  their  opinion  the  public  interest  would  be  es- 
sentially promoted  by  as  speedy  a  completion  of 
the  enlargement  ot  the  Erie  canal  from  the  Hudson 
to  lake  Etie,  as  the  facilities  tor  obtaining  means 
with  economy  will  justiiy."  But  I  need  not  en- 
large on  this  topic  further  Enough  has  been  pre- 
sented to  show  most  conclusively  upon  v>  horn  the 
responsibility  of  the  present  debt  rests. 

Nocv,  sir,  I  am  not  one  of  I  hose  who  regard  a 
public  debt  a  public  blessing.  I  do  not  hold  that 
slates,  any  more  than  individuals,  should  reck- 
lessly rush  into  debt,  or  incur  liabilities,  without 
at  fhe  same  time  making  reas<  nable  provisons  lor 
their  liquidation.  But  when  it  becomes  necessary 
to  contract  a  debt,  to  secure  to  ourselves  and  to 
future  ages  the  blessings  of  a  great  public  improve- 
ment, it  should  be  done.  Nur  is  it  a  valid  objec- 
tion against  so  doin^,  that  a  portion  of  the  liability 
may  remain  to  be  discharged,  by  those  who  are  to 
succeed  us  upon  the  stage  of  action.  The  princi- 
ples of  justice  are  by  no  means  violated,  piovided 
we  leave  to  them  a  valuable  consideration.  It  is 
not  that  they  should  pay  our  debts,  but  simply 
that  they  should  contribute  a  share,  in  return  for 
the  advantages  and  blessings  transmitted  t<>  them 
through  our  instrumentality.  Opinions  analagous 
to  these,  appear  to  have  been  entertained  by  Gov. 
Marcy  in  1S3G.  In  his  annual  message  of  that 
year,  he  says:  "1  must  not  be  understood  to  main. 
"  tain  the  position  that  the  people  of  the  present 
"day  should  turnish  the  means  ot  reimbursing  the 
"  loans  that  they  may  make  for  the  purp<  se  of  in- 
"  ternal  improvement's.  These  improvements  will 


846 


"  be  left  lor  the  benefit  of  future  ages,  and  I  see  no 
"  injustice  in  transmitting  to  them  the  obligation 
"  to  contribute  a  fair  proportion  towards  the  ex- 
«'  penses." 

We  come  now  to  the  year  1»42.  At  this  time  a 
wonderful  rhange  appeals  to  have  taken  place  in 
the  views  of  those  who  had  previously  been  firm 
supporters  of  the  improvement  policy.  In  the  gen- 
eral embarrassments  of  that  period,  our  finances 
became  involved:  it  doubtless  required  great  wis- 
dom and  prudence  so  to  manage  affairs,  that  the 
interests  of  the  state  should  not  suffer  serious  del- 
riment.  Sound  policy  required  a  more  cautious 
progress,  but  did  not  require  an  entire  suspension 
of  the  public  works.  The  tax  that  year  imposed, 
brought  our  stocks  up  nearly  or  quite  to  par,  but 
the  state  did  not  avail  itself  of  its  improved  cr?dit 
in  carrying  forward  the  unfinished  works.  Heie 
was  the  great  error.  The  increased  value  given 
to  our  state  scrip  accrued  rather  to  the  benefit  of 
capitalists  and  moneyed  men  who  held  such  scrip, 
than  to  the  great  body  of  the  people.  Sir,  who  pe- 
titioned for  that  stop  and  lux  law  ?  Did  the  people, 
or  any  considerable  portion  of  them?  I  have  yet 
to  learn  that  that  law  was  asked  at  the  hands  of  the 
legislature,  by  any  except  the  capitalists  of  New- 
York  Unless  I  have  been  misinformed,  and  if 
so,  I  wish  now  to  be  informed,  only  three  men, 
who  might  be  considered  as  the  representatives  of 
the  moneyed  influence  of  Wall-street,  petitioned 
for  the  law  of  1842. 

Although  I  am  by  no  means  disposed  to  distrust 
the  legislature — although  I  cannot  join  in  the 
charges  which  have  been  so  frequently  made  as  to 
its  venality  and  corruption,  regarding  itasldo, 
the  true  conservative  branch  of  our  government,  I 
cannot  disguise  to  mvselt  the  fact,  that  on  this  oc- 
casion its  action  appears  to  have  been  shaped  more 
to  suit  the  policy  of  moneyed  men,  than  to  meet 
the  wishes  of  the  great  body  of  the  people. 

The  gentleman  from  Herkimer  has  presented  a 
long  array  of  figures  to  show  how  much  mere  our 
improvements  have  cost,  by  our  having  used  our 
credit  in  their  prosecution.  His  argument  goes 
the  whole  length  against  the  employment  ol  credit 
in  any  shape.  I  will  ask  gentlemen  if  they  in  can- 
dor believe,  that  without  using  the  state  credit, 
ar;y  of  these  works  would  have  been  built?  No  sir. 
The  people  would  never  have  consented  to  the  im- 
position of  a  direct  tax  equal  to  the  annual  expen- 
ditures on  our  canals  during  the  process  of  their 
construction.  The  credit  system  might  have  been 
abused:  it  HAS  been  grossly  abused.  But  if  we 
have  gone  too  fast  or  too  far,  let  us  retrace  our 
steps  and  proceed  more  cautiously  in  future.  Credit 
properly  used,  is  a  legitimate  means  of  business; 
it  has  been  the  great  engine  of  our  prosperity  as  a 
state,  and  I  can  not  endorse  the  course  of  gentle- 
men  who  now,  instead  of  redressing  grievances 
and  correcting  the  mistakes  of  the  past,  turn  round 
and  kick  from  under  them  the  ladder  upon  which 
they  had  mounted  to  this  eminence  The  honora- 
ble gentleman  who  has  addressed  the  committee 
on  this  subject,  has  not  given  us  to  unders'and  that 
he  is  in  favor  ol  a  completion  of  the  enlargement 
of  the  Erie  canal,  or  the  finishing  of  the  late- 
ral canals  at  any  time.  His  argument  went 
o  show  directly  the  contrary-  He  would  con- 
tent himself  for  all  time  to  come  with  such  im- 
provements as  might  be  effected  with  less  than 


two  millions  of  dollars.  This  might  give  us  five 
feet  water  in  the  canal  and  double  locks :  it  will 
scarcely  do  more.  I  would  respectfully  ask  gen- 
tlemen, if  they  are  willing  to  see  the  immense 
sums  which  the  state  has  already  expended,  be- 
come a  total  loss  ?  That  those  costly  structures 
which  have  already  been  built,  should  go  to  ruin 
and  prove  of  no  advantage  to  any  one,  as  they  as- 
suredly will  unless  by  a  timely  prosecution  of  the 
work,  they  be  brought  into  active  requisition  ? — 
By  the  natural  action  of  the  elements,  these  struc- 
tures in  their  present  unfinished  and  exposed 
condition,  are  rapidly  deteriorating  in  value  ;  the 
loss  to  the  state  from  this  source  alone,  cannot  be 
less  than  five  per  cent  on  their  first  cost  annually  ; 
it  may  be  much  more.  As  they  now  are,  they 
are  nearly  worthless  so  far  as  the  production  of 
revenue  is  concerned.  Of  the  amount  expended 
on  the  enlargement  and  in  the  construction  of  the 
Genesee  Valley  canal,  more  than  two-thirds,  and 
all  that  has  been  expended  on  the  Black  River 
canal,  is  entirely  unavailable.  We  then  lose  ne- 
cessarily, the  interest  on  the  sums  thus  paid  out, 
amounting  annually  to  more  than  half  a  million  of 
dollars.  It  is  not  my  purpose  at  this  time,  to 
take  into  account  the  loss  sustained  by  our  fellow 
citizens  whose  business  interests  are  suffering 
from  this  suicidal  policy.  On  another  occasion  I 
may  have  something  to  say  on  this  head.  But 
why  thus  abandon  our  public  works  ?  Why  de- 
part from  what  appeared  to  be  our  well  settled 
policy  ?  The  gentleman  from  Herkimer,  although 
lot  in  plain  terms,  gives  us  to  understand  with  suf- 
icient  distinctness,  the  reasons  for  the  course  he 
las  proposed. 

He  leaves  us  to  infer  that  in  his  opinion  the  day 
.s  not  far  distant  when  the  Erie  canal  will  be 
mostly  if  not  entirely  superseded,  by  tne  use  of 
rail  roads,  and  the  diversion  of  the  great,  carrying 
trade  through  rival  routes— through  the  Mississip- 
pi and  St.  Lawrence,  and  the  Pennsylvania  canals. 
With  regard  to  the  fiist  part  of  this  argument,  I 
would  ask  how  a  rail  road  could  by  any  possibility 
compete  with  our  enlarged  canal  in  the  transpor. 
tation  of  heavy  products.  Does  he  not  see  that 
no  rail  road  that  ever  was  built,  could  do  the  bu- 
siness now  done  on  the  canal  ?  And  when  the  en- 
largement shall  have  been  completed,  the  cost  of 
transportation  will  be  diminished  one  half;  and 
at  the  present  time,  aside  from  the  tolls  paid  to 
the  state,  the  cost  of  transportation  is  less  than 
for  an  equal  distance  on  any  other  route,  whether 
by  land  or  water.  How,  then,  could  even  a  par- 
allel road  divert  any  considerable  business  from 
the  canal,  when  enlarged  ?  So  far  as  relates  to 
rival  routes,  the  argument  only  goes  to  show  that 
we  should,  without  any  unnecessary  delay,  make 
such  improvements  as  will  retain  to  our  state  the 
great  advantages  it  at  present  possesses.  I  will 
admit,  if  the  gentleman's  policy  should  prevail  in 
this  body  and  with  the  people  of  the  state,  it  we 
are  to  fJld  our  arms  and  sit  quietly  by,  while  En- 
gland is  improving  the  route  by  the  St.  Lawrence, 
and  until  Pennsylvania  recovers  from  her  piesent 
embarrassments  and  resumes  her  public  works, 
the  great  tiade  of  the  West  may  be  lost  to  us— 
but  not  otherwise. 

Sir,  the  city  of  New. York  is  the  great  centre  oi 
business  for  the  whole  country.  To  this  point 
will  the  agricultural  products  of  the  west,  tend. 


847 


They  will  find  their  way  to  that  city,  through 
the  most  ready,  convenient  and  cheap  modes  of 
conveyance.  Through  the  same  channels,  the 
:n  productions  used  in  th;il:  portion  o!'  our 
country,  will  pass  from  the  sr-.»-bo;ird.;  thus  giv- 
ing us  the  carrying  trade  both  \v;iys,  if  we  are 
wist  enough  to  improve  our  present  advanl 
Another  reason  adduced  by  the  gentleman  from 
Herkimo.r,  and  the  one  upon  which  he  seems  to 
lay  the  most  stress,  and  is  in  fact  the  soul  of  his 
whole  arirument,  is  the  deplorable  condition  of 
our  finances.  He  has  indeed  presented  us  with  a 
picture  sufficiently  appalling  But  it  is  proper 
for  us  to  examine,  and  ascertain  if  we  can,  wheth- 
er or  no,  that  gentleman  has  not  used  some  of  his 
own  peculiar  coloring,  to  give  to  the  picture  that 
hue,  most  consonant  with  his  own  views  and  best 
suited  to  his  present  purposes.  The  state  of  New- 
York,  has  expended  in  canals  about  $31,000,^00, 
nearly  half  of  which  is  at  present  unavailable ; 
yet  she  derives  a  nett  revenue  equal  to  seven  per 
cent  upon  the  whole  outlay.  The  amount  ex- 
pendea  in  the  enlargement  and  in  the  construc- 
tion of  the  Genesee  Valley  and  Black  River  ca- 
nals, as  I  have  before  stated,  contributes  but  little 
to  the  aggregate  amount  of  revenue.  We  are  at 
this  time  deriving  not  less  than  twelve  per 
cent  annually,  from  the  amounts  expended 
and  which  have  been  made  available  ;  and  ev- 
ery consideration  favors  the  idea,  that  as  soon  as 
our  improvements  shall  be  completed,  we  may 
derive  an  annual  revenue  from  the  whole  in 
about  the  same  proportion,  or  »ot  less  in  any 
event,  than  from  7  to  10  per  cent,  Our  present 
debt  Its  about  22k  millions.  In  the  Governor's 
annual  mes-i.i.re,  is  10,  our  canal  debt  is  stated  to 
be  s  57.  (See  Assembly  Doc.  1846, 

No.  3,  p.  19.)  The  debt  of  the  general  fund  was 
stated  by  him  to  be  $5,885,549  24.  (See  same 
doc.  p.  24.)  To  meet  this  we  have  an  annual 
revenue  from  the  canals,  which  has  been  steadily 
increasing  ever  since  the  system  went  into  opera- 
tion ;  and  notwithstanding  the  reverses  of  a  few 
years  in  the  series,  and  the  diminution  of  the  rates 
of  toll,  the  nett  income  has  nearly  doubled  every 
ten  years.  To  complete  the  enlargement  of  the 
Erie  and  finish  the  Genesee  Valley  and  Black 
River  canals,  will  require  about  ten  millions.  1 
have  prepared  a  table  with  some  care  exhibiting 
what  will  probably  be  the  nett.  receipts  from  tolls 
for  the  next  twenty  years.  This  is  not,  howTever, 
upon  the  supposition  that  the  tolls  will  continue 
to  increase  through  this  period  in  the  same  ratio 
as  heretofore.  Should  the  gross  revenue  increase 
for  six  years  at  the  rate  of  3i  per  cent  year  b} 
year,  then  for  another  term  of  five  years  (after  th( 
enlargement  shall  have  been  completed)  at  tin 
rate  of  7  per  cent — then  in  an  arithmetical  rati< 
equal  to  the  average  of  the  preceding  five  years 
for  five  years  further,  and  then  remain  stationary 
it  would  give  us  in  twenty  years  an  aggregate  o 
more  than  70  millions  nett  revenue.  Whoeve 
will  look  carefully  at  the  past,  and  consider  at 
tentively  the  causes  that  must  operate  in  fu 
ture,  cannot  regard  this  statement  as  visiona 
ry  or  at  all  improbable.  Who  will  say  ther 
that  the  State  of  New  York  does  not  possess  th 
ability  to  liquidate  every  dollar  of  its  indebt 
edness,  and  carry  out  its  system  of  unfinishe< 
works  ?  When  has  the  State  "  broken  down  be 


eath  its  debt"  as  the  gentleman  from  Herkimer 
ntimates  ?  Whence  the  prospect  that  it  will  do 
or  A  State  whose  tax  rolls  show  upwards  of 
.illions  of  dollars;  whose  citizens  are 
vorih  at  this  instant  not  less  than  900  millions; 
vhose  property  owned  and  possessed  by  itself  and 
n  its  own  name,  will  fall  little  short  of  50  mil- 
ions,  estimating  it  as  other  property  is  estimated 
y  its  productive  capacity  ;  and  if  the  State  is 
iblc,  is  it  not  expedient,  is  it  not  just — is  it  not 
^ccessary  to  go  forward  ?  Shall  we  retain  our 
n-esent  proud  position  among  our  sister  states  ; 
r  shall  we  through  apprehensions  that,  have  no 
jetter  foundation  than  the  morbid  fears  of  an  ex- 
ite  i  imagination,  suffer  her  to  retrogade  and 
ventually  take  up  with  an  inferior  position  ? — 
Shall  we  pursue  our  onward  path  in  the  spirit  of 
>ur  own  glorious  motto  "  Excelsior,"  or  shall  we 
•jermit  that  banner  to  trail  in  the  dust  ?  Sir,  if 
ve  pursue  in  the  spirit  of  enlightened  wisdom, 
he  course  which  lies  open  before  us  ;  if  we  con- 
inue  to  exert  ourselves  in  extending  to  commerce 
he  accommodations  which  it  requires  and  which 
lature  has  placed  within  our  reach,  we  shall  se- 
cure to  ourselves  and  to  those  who  shall  come  af- 
er  us,  advantages  such  as  no  other  people  ever 
enjoyed.  All  this  we  may  accomplish,  without 
•esorting  to  taxation.  Let  the  State  only  be  true 
.o  itself,  and  its  credit  cannot  be  impaired.  Pur- 
sue a  liberal  policy,  and  within  twenty-five  years, 
kve  shall  possess  a  heritage  unencumbered  with 
debt,  of  which  our  citizens  might  well  be  proud. 
On  the  other  hand,  adopt  the  policy  of  the  gen- 
leman  from  Herkimer,  and  we  shall  soon  find 
ourselves  receding,  our  present  advantages  disap- 
Dearing,  and  the  bright  fame  of  our  State  obscured. 

When  Mr.  ARCHER  had  concluded,  there  was 
a  long  pause  ;  no  member  appeared  to  disposed  to 
address  the  committee. 

The  CHAIRMAN  ordered  the  section  to  be 
ead.  It  was  read.  No  one  rose  to  speak. 

Several  gentlemen  called  out  "  question." 

Mr.  HAWLEY  suggested  that  the  first  section 
•e  passed  over. 

SEVERAL, — Oh  no !  surely  somebody  has  got 
something  to  say  about  it. 

Finally  the  first  section  was  passed  over  sub 
silentio. 

The  Chair  ordered  the  clerk  to  read  the  second 
section. 

It  was  read. 

No  member  rose,  or  appeared  desirous  of  rising 
to  debate  it. 

Mr.  CHAMBERLAIN  said  that  he' was  aston- 
ished at  this  ;  and  he  would  move  that  the  com- 
mittee rise  and  report  progress.  This  was  lost. 

The  second  section  was  read  again  : 

§  -2.  In  liquidation  of  the  state  claims  lor  advances  to,  and 
payments  for,  the  canals,  [<i672,o0(.ij  six  hundred  and  sev- 
enty-two thousand  and  five  hundred  dollars  of  the  reven- 
ues of  the  said  canals,  shall,  forever,  in  each  fiscal  year, 
and  at  that  rate  for  a  shorter  period,  commencing  on  the' 
fiist  da}'  of  June,  one  thousand  eitjht  hundred  and  ior:y-si_\, 
be  paid  into  the  Trea-<my-i'..r  the  use  of  the  State  :  and  if 
the  payment  of  that  sum,  or  any  pait  thrivol,  s;i:ili  be  de- 
v  reason  of  hie  prim  ;•(!  in  the  preceding 

section,  the  amount  so  delayed,  with  quarterly  interest 
thereon,  at  the  then  current  rate,  shall  he  so  paid  out  of 
the  said  revenue  as  soon  as  can  he  done  consistently  with 
such  priority. 

The  third  section  was  read  as  follows : 
^3.  The  surplus  olthe  revenues  of  the  canals,  after  pay- 
ing the  said  expenses  of  the  canals,  and  the  sums  appropri- 


848 


ated  by  the  two  preceding  sections,  shall  in  each  fiscal 
year  be  applied  to  the  improvement  of  the  Erie  canal,  in 
such  manner  as  may  be  directed  by  law,  until  such  surplus 
shall  amount  in  the  aggregate  to  the  sum  of  [£2,500,000] 
two  millions  and  live  hundred  thousand  dollars. 

Mr.  DANFORTH  moved  to  amend  by  inserting 
after  the  word  "  Erie"  the  words  "Black  River." 

Mr.  CHATFIELD  did  not  rise  to  oppose  this 
motion,  but  to  express  the  hope  that  this  entire 
section  would  be  stricken  out.  He  was  opposed 
to  tying  up  these  surplus  revenues  by  a  constitu- 
tional provision.  After  securing  the  payme  t  of 
the  public  debt,  he  would  leave  the  legislature 
free  to  make  such  disposition  of  the  revenues  as 
might  to  them  seem  fit. 

Mr.  HOFFMAN  said  that  he  thought  he  had 
most  fully  and  satisfactorily  explained  this  point 
when  he  was  up  yesterday;  but  as  it  appeared 
that  he  had  been  misunderstood,  he  would  detain 
the  committee  a  few  moments  now,  by  way  of 
explanation.  The  committee  were  charged  with 
the  duty  of  making  ample  provision  for  the  dis- 
charge of  the  public  debt  as  speedily  as  possible. 
They  could  not  be  blind  to  the  (act  that,  do  what 
they  might  on  this  subject,  that  there  would  ac- 
crue surplussojj.  Now  he  (Mr.  H.)  considered 
the  Erie  Canal  as  much  a  local  work  as  any  other 
canal  in  the  state  ;  but  the  question  was  not  this, 
but  it  was,  "  how  can  you  best  promote  the  inter- 
ests of  the  state  by  cheapening  the  facilrties  ot 
transportation?"  Now,  on  the  Erie  enlargement 
there  are  more  than  $10,000,000  of  contracts  still 
unlet,  besides  the  large  portion  that  is  still  lelt 
unfinished.  Whilst,  therefore,  these  surplusses 
which  must  arise  would  go  but  little  way  in  the 
completion  of  the  work,  they  still  would,  by  ap- 
plication to  the  improvement  of  the  navigation, 
afford  additional  tacilities  tor  trade  and  commerce 
to  pass  upon  the  canal.  The  committee,  in  their 
best  judgment,  had  supposed  that  $2,500,000  might 
be  laid  out  in  this  way  to  great  advantage  ;  and 
over  and  above  this  amount,  they  were  willing 
to  leave  the  Legislature  to  dispose  of  any  sur- 
plusse*  that  might  accrue  or  be  on  hand,  in  any 
way  that  in  their  wisdom  they  thought  best. — 
The  reason  why  the  committee  agreed  to  give  the 
preference  to  the  Erie  canal,  was,  not  in  order  to 
gratify  a  locality,  but  solely  with  a  view  to  make 
the  public  secure  of  an  instrument  to  perform 
transportation,  and  to  secure  the  means  of  taxa- 
tion to  pay  the  debt  for  the  construction  of  all 
these  works.  Now  he  would  ask  the  committee 
here  whether  it  would  do  to  undertake  to  get 
along  with  the  unfinished  canals  with  these  sur- 
plusses, be<they  what  they  might  ?  Suppose  you 
were  to  take  them  and  go  on  with  all  three  of 
these  great  works,  or  select,  if  you  please,  the 
Genesee  Valley  canal.  It  would  cost  to  com- 
plete the  one  above  at  least  $3,000,000.  Of 
course,  other  estimates  can  be  had  to  order, 
reducing  the  amount  to  $2,000,000  if  you  please; 
and  one  member  had  even  said  it  could  be  com- 
pleted for  $'1,000,000.  But  at  his  estimate  it 
would  require  at  least  $20(r,000  every  year  for  10 
or  15  years  from  the  annual  revenues  of  the  canal 
to  complete  it.  Gentlemen  here  have  said  that 
if  the  Black  river  and  Genesee  valley  canals  were 
completed,  they  would  pour  an  enormous  amount 
of  tolls  into  the  Erie  canal ;  increase  its  revenue 
and  more  than  pay  for  the  outlay.  This  might  be 
so;  but  for  his  own  part  he  had  never  been  able 


to  compute  it  in  that  way.  The  estimates  in  re- 
gard to  it  have  never  been  collected.  On  the  oth- 
er hand  the  committee  have  not  thought  it  neces- 
sary to  advise  for  the  enlargement  of  the  Erie  ca- 
nal, neither  have  they  advised  against  it.  Nor 
have  they  advised  for  the  completion  of  the  Ge- 
nesee valley  or  Black  river  canals,  neither  have 
they  advised  against  their  completion.  That 
matter  has  been  left  to  be  decided  by  this  conven- 
tion. But  with  regard  to  the  means,  which  the 
state  would  have  in  its  hands,  to  do  either  of  these 
things,  he  (Mr.  H.)  did  not  honestly  believe  they 
would  be  increased  by  any  means,  beyond  the 
amount  he  had  already  stated  to  the  convention. 

Mr.  DANFORTH  endorsed  the  principle  that 
strict  justice  to  the  creditors  of  the  state  should 
be  maintained.  There  was  however  a  class  of 
creditors,  whom  the  gentleman  from  Herkimer  had 
noj;  included  :  if  he  had,  Mr.  D.  would  riot  have 
troubled  the  Convention  with  any  remarks.  Jeffer- 
son county  had  contributed  largely  to  every  pub- 
lic work  and,  had  received  no  return.  He  was 
pledged  to  carry  out,  the  policy  of  1842,  he  desir- 
ed to  make  ample  provision  to  pay  all  our  debts 
as  they  became  due ;  he  had  no  wish  to  dip  deep 
into  the  treasury,  but  where  there  was  a  surplus, 
as  was  contemplated  by  the  section  under  conside. 
ration,  the  Black  River  canal  had  claims  on  it  as 
great  as  the  Erie  canal.  He  had  moved  this 
amendment  that  the  state  might  do  justice  to  Jef- 
ferson county,  and  he  intended  to  follow  it  up  by 
another  increasing  the  total  mentioned  in  the  sec- 
tion to  $4.000,000. 

Mr.  CHAMBERLAIN  said  the  amendment  of 
the  gentleman  trom  Jefferson  was  partial.  If, 
however,  he  would  withdraw  it  and  allow  Mr.  C. 
to  propose  an  amendment,the  5th  section  of  a  plan 
he  some  time  since  proposed,  including  several 
public  works,  it  would  be  more  satisfactory. 

Mr.  DANFORTH  declined  withdrawing  his 
proposition. 

Mr.  HAWLEY"  moved  to  amend  the  amend- 
ment, by  adding  the  words  "Genesee  Valley  ca- 
nal." He  thought  the  partial  provision  of  the 
committee's  report  was  unworthy  of  a  conslitu- 
tion.  He  added,  though  he  offered  the  amend- 
ment, he  reserved  the  right  to  oppose  the  whole 
section. 

Mr.  BOUCK  suggested  that  as  the  Convention 
was  very  thin,  it  would  be  better  to  pass  by  this 
section,  and  proceed  to  others,  to  which  there 
might  be  less  objection.  He  threw  out  the  sug- 
gestion lor  the  consideration  of  the  movers  of 
these  amendments. 

Mr   DANFORTH  had  no  objection. 

The  CHAIR  asked  if  the  gentleman  withdrew 
his  amendment. 

Mr.  DANFORTH  did  not. 

Some  conversation  ensued,  in  the  course  of 
which  Mr.  HAWLEY  expressed  his  willingness  to 
withdraw  his  amendment  and  Mr.  CHATFIELI 
said  he  desired  to  have  a  vote  on  striking  out  th< 
section.  His  reason  was  that  he  should  be  absen 
next  week. 

Mr.  DANFORTH  moved  to  postpone   the  fur 
ther  consideration  of  this  section.     Lost. 

Mr.   HAWLEY'S   amendment  was  lost — 24   tc 
43. 

Mr.  DANFORTH'S  amendment  was  lost,  11  vo 
ting  in  its  favor. 


849 


Mr.  CHATFIELD  then  moved  to  strike  out 
the  entire  section.  He  asked  if  it  was  wrong 
that  localities  that  had  received  no  benefit  from 
the  works  of  public  improvement,  which  they 
had  helped  to  build,  should  ask  for  some  portion 
of  their  revenues  ?  He  would  not,  however,  pro- 
vide for  localities  in  the  consti'ution,  but  leave 
it  open  for  the  legislature  to  hear  their  claims, 
giving  the  revenues  of  the  state  as  a  trust  in  the 
hands  of  its  representatives,  to  be  applied  for 
the  general  benefit.  The  gentleman  from  Her- 
kimer  had  said  that  we  should  look  solely  to  the 
security  of  the  creditors  of  the  state  in  our  ac- 
tion upon  this  subject.  He  dissented  entirely 
from,  and  would  refuse  to  co-operate  in,any  such 
principle.  He  held  that  we  did  all  that  we  could 
justly  be  called  upon  to  do,  when  we  provided 
tor  the  payment  oi  the  debt  to  our  creditors. — 
He  went  into  some  statistics  to  show  the  incor- 
rectness of  the  estimates  of  revenue  given  by 
Mr.  HOFFMAN.  The  expenses  of  the  canals  for 
the  last  five  years  were  greater  than  the  amount 
which  the  report  had  set  apart  for  such  purpose. 
He  did  not  believe  with  some  gentlemen  that  the 
revenues  of  the  canals  were  to  increase  year  by 
year.  The  anticipations  of  statesmen  in  regard 
to  this  had  not  been  thus  far  realized. 

Mr.  WORDEN  asked  if  he  meant  state  officers, 
by  the  term  statesmen  ? 

Mr.  CHATFIELD  said  he  had  no  reason  to 
suppose  that  the  state  officers  who  had  given  es- 
timates upon  this  subject  were  other  than  states- 
men. 

Mr.  WORDEN  again  inquired  if  the  gentleman 
intended  to  say  that  the  estimates  of  those  officers 
had  not  been  realized  ? 

Mr.  CHATFiELD  said  he  alluded  to  the  cal- 
culations nrade  by  Mr.  RUGGLES,  and  contended 
that  the  anticipations  of  that  statesman  had  not 
been  realized. 

Mr.  WORDEN  said  the  revenues  had  increas- 
ed above  his  estimate  over  his  estimate  over  $2, 
000,000. 

Mr.  CHATFIELD  took  a  different  view  of  the 
matter  than  that  of  the  gentleman  from  Ontario 
Mr.  RUGGLES  had  provided  a  sinking  fund  which 
was  to  extinguish  the  debt  at  a  certain  period, 
which  he  believed  had  not  been  realized  thus  far, 
and  if  the  gentleman  imagined  that  it  would  be 
found  correct  in  a  period  of  ten  years  to  come,  he 
was  more  insane  than  he  had  supposed  him. 

Mr.  WORDEN  said  he  only  took  the  ground 
that  they  had  been  more  than  realized  up  to  this 
time. 

Mr.  CHATFIELD  proceeded  with  his  argu- 
ment, and  closed  his  remarks  by  reiterating  what 
he  had  said  with  regard  to  the  rights  of  locali- 
ties in  this  matter  of  benefits  from  the  canal  re- 
venues. 

The  motion  to  strike  out  was  lost— 29  to  37. 
Mr.  CHAMBERLAIN  moved  to  strike  out  the 
third  section  and  insert  the  following  : — 

The  remaining  revenues,  alter  complying  with  the  pre 
ceding  sections,  shall  be  applied  to  thr;  enlargement  of  the 
Erie  canal,  the  com  >l*nion  of  the  Genesee  Valley  ant 
Black  river  canals  and  the  Oneida  river  improvement,  a 
shall  b«  di.ected  by  law. 

This  motion  was  lost,  16  to  38. 

Mr.  BOUCK  again  suggested  that  these  impor 
tant  sections  should  be  passed  over  as  the  house 
was  very  thin. 


Mr.  VAN  SCHOONHOVEN  said  nothing 
vould  be  lost  by  going  through  all  the  sections, 
is  motions  to  amend  could  hereafter  be  enter- 
ained. 

The  Secretary  proceeded  to  read  the  fourth  sec- 
ion  and  there  were  no  propositions  to  amend, 
t  was  as  follows : — 

^  4.  Of  the  sum  of  six  hundred  and  seventy-two  thou 
and  five  hundred  dollars  required  by  the  second  section  of 
his  article  to  he  paid  into  the  treasury,  [$5iiO,000,]  five 
mndre  1  thousand  dollars  shall,  in  each  fiscal  year,  and  at 
hat  rate  for  a  shorter  period  commencing  on  the  first  day 
f  June,  one  thousand  eight  hundred  and  forty-six,  be  set 
part  as  a  sinking  fund  to  pay  the  interest  and  redeem  the 
i-rincipal  of  that  part  of  the  state  debt  called  the  General 
Fund  debt,  including  the  debt  for  loans  of  the  state  credit 
o  railroad  companies  which  have  failed  to  pay  the  interest 
hereon,  and  also  the  contingent  debt  on  state*stocks  loan- 
id  to  incorporated  companies  which  have  hitherto  paid  the 
nterest  thereon,  whenever  and  as  far  as  any  part  thereof 
may  become  a  charge  on  the  treasury  or  General  Fund, 
until  the  same  shall  be  wholly  paid  ;  and  the  principal  and 
ncome  of  the  said  last  mentioned  sinking  fund  shall  be  sa- 
jredly  applied  to  the  purpose  aforesaid  ;  and  if  the  pay- 
ment of  any  part  of  the  said  five  hundred  thousand  dollars 
shall  at  any  time  be  deferred  by  reason  of  the  priority  re- 
cognized in  the  second  section  of  this  article,  the  sum  so 
deferred,  with  quarterly  interest  thereon,  at  the  then  cur- 
rent rate,  shall  be  paid  to  the  last  mentioned  sinking  fund, 
is  soon  as  the  sum  so  deferred  shall  be  received  into  the 
reasury. 

The  fifth  section  was  next  read  as  follows : — 
§  5.  The  claims  of  the  state  against  any  incorporated  com- 
pany to  pay  the  interest  and  redeem  the  principal  of  the 
stock  of  the  state  loaned  or  advanced  to  such  company, 
shall  be  fairly  and  duly  enforced,  and  not  deferred,  releas- 
ed or  compromised  ;  and  the  moneys  arising  from  such 
claims  shall  be  set  apart  and  applied  as  a  part  of  the  sinking 
fund  provided  in  the  fourth  section  of  this  article. 

Mr.  JORDAN  moved  to  strike  out  the  words 

and  not  deferred,  released,  or  compromised"  in 
the  fourth  line,  and  insert  "  but  may  be  deferred 
or  compromised  as  may  be  most  consistent  with 
the  interest  of  the  state."  He  thought  the  rule  es 
tablished  by  the  committee  was  too  stringent  and 
might  operate  to  the  loss  of  the  state. 

Mr.  VAN  SCHOONHOVEN  thought  the  whole 
section  should  be  stricken  out. 

Mr.  HOFFMAN  defended  the  section  as  right, 
proper  and  necessary.  The  term  "  released"  of- 
ten meant  robbery  of  the  treasury.  He  mention- 
ed several  cases  in  which  the  treasury  had  been 
defrauded  by  the  release  of  companies.  He  de- 
sired that  it  should  be  made  known  to  companies 
that  they  are  to  make  efforts  to  meet  their  respon- 
sibilities to  the  government.  If  it  was  meant 
that  they  should  not  pay,  the  amendment  would 
prevail,  but  if  it  was  desired  that  they  should  pay 
their  just  liabilities,  the  section,  stringent  as  it 
was  deemed,  should  be  retained.  It  required  a 
two-thirds  vote  to  change  the  character  of  these 
companies.  One  of  them  after  pocketing  $70,- 
00,0  of  the  public  credit  came  here  in  1844  and 
asked  for  relief,  which  is  only  another  name  for 
public  robbery.  That  is  a  very  good  translation 
for  the  term.  A  two-thirds  vote  looked  rather 
dubious,  and  so  the  lobby  changed  ground.  They 
got  a  joint  resolution  passed  directing  the  Comp- 
troller not  to  sell  the  road. 

Mr.  JORDAN :     What  road  was  it  ? 

Mr.  HOFFMAN  said  that  the  name  was  so 
long,  he  did  not  know  that  he  could  repeat  it. — 
He  believed  it  was  called  the  Tioga  Coal,  Iron 
and  Mining  Company.  Well,  they  got  relieved 
from  the  two  per  cent  to  the  sinking  fund,  and 

81 


850 


thus  the  state  and  public  creditors  were  defraud- 
ed. Another  of  these  roads  got  permission  to  ex- 
pend its  sinking  fund  on  the  improvement  of  the 
road.  When  he  remembered  these  things,  and 
how  often,  here  and  elsewhere  it  had  been  sworn 
to  that  these  sums  would  be  paid,  and  yet  we 
saw  these  results,  he  wanted  this  section  adopted. 
He  was  willing  to  allow  an  extension  in  behalf 
of  the  New-York  and  Erie  road,  but  nothing  far- 
ther. He  would  have  all  these  railroad  compa- 
nies know  that  they  must  pay  or  take  the  conse- 
quences. 

Mr.  WORDEN  inquired  .whether  provision 
had  been  made  to  meet  the  payment  of  this  con- 
tingent debt — that  from  the  Delaware  and  Hud- 
son Canal  Company. 

Mr.  HOFFMAN  only  knew  that  the  stock  of 
that  company  was  above  par.  They  might  thus 
be  able  to  pay.  But  the  state  had  no  funds  with- 
in its  control" to  meet  that  contingent  liability. — 
The  canal  itself  was  all  that  could  be  reached  by 
the  state. 

Mr.  WORDEN  had  inquired,  because  last  win- 
ter when  a  member  of  the  finance  committee,  he 
had  been  told  by  the  majority  of  the  committee 
that  that  sum  was  provided  for,  and  no. sort  of  le- 
gislation was  required. 

Mr.  HOFFMAN  supposed  those  who  had  in- 
formed the  gentleman  knew  no  more  than  he  did 

that  is,  they  supposed  the  company  could  and 

would  pay. 

Mr.  JORDAN  was  afraid  that  the  gentleman 
from  Herkimer  was  disposed,  not  only  to  lock  up 
his  bowels  of  compassion  and  turn  state  Shylock, 
but  to  defeat  his  own  objects  in  his  zeal  to  pro- 
mote the  interests  of  the  state.  In  examining  into 
these  matters,  we  should  regard  them  as  an  indi- 
vidual would.  He  should  think  it  the  very  worst 
policy,  if  a  person  owed  him  a  debt,  to  compel 
him  to  a  sale  and  sacrifice  of  his  property,  when 
by  deferring  the  debt  he  might  enable  the  debtor 
to  retrieve  his  affairs  and  ultimately  not  only  pay 
the  whole  debt  but  save  something.  The  course 
of  the  gentleman  from  Herkimer  cut  through  all 
considerations  of  policy,  mercy,  justice  and  every 
thing  else.  The  gentleman  was  disposed  to  take 
a  rigid  course  with  these  corporations — to  put  his 
knife  right  into  the  very  spot,  and  taKe  out  the 


defer  the  payment  of  the  two  and  a  half  per  cent, 
to  the  sinking  fund,  to  enable  them  to  apply  their 
means  to  greater  advantage.  They  obtained  this 
relief,  and  were  thus  enabled  to  prosecute  their 
work  and  to  put  themselves  in  a  condition  to  pay 
the  debt  due  the  state.  If  the  rule  of  this  section 
had  been  rigidly  enforced  against  them,  the  road 
must  have  been  sold  out  for  little  or  nothing,  and 
perhaps  have  become  the  property  of  the  state — 
and  from  the  examples  we  had  had  of  the  expen- 
diture of  money  by  public  agents,  on  the  state 
works,  we  should  then  have  had  a  pretty  exhibi- 
tion ot  state  policy  and  economy.  Mr.  J.  conce- 
ded the  policy  and  necessity,  not  only  on  the  part 
of  the  state,  but  of  individuals  and  corporations, 
of  meeting  obligations  to  the  utmost  farthing. — 
But  he  insisted  there  was  no  wisdom  in  crippling 
and  crushing  either  an  individual  or  a  company, 
when  by  indulgence  there  was  a  probability  of 
their  being  able  to  pay  and  to  save  themselves. — 
Such  a  policy  was  perfectly  suicidal.  But  it  did 
not  follow,  if  we  left  this  power  to  the  legisla- 
ture, that  they  would  indulge  companies,  when 
there  was  no  prospect  of  their  being  able  to  pay. 
Mr.  RICHMOND  understood  the  gentleman  to 
say  that  the  company  he  alluded  to  had  obtained 
the  relief  sought  and  was  doing  well.  He  asked 
whether  it  had  returned  to  pay  ? 

Mr.  JORDAN  replied  that  the  time  was  not  up 
yet;  but  when  it  did  come,  the  company  would 
return  to  pay.  Mr.  J.  went  into  the  his'ory  of 
this  company  a  little  further.  It  was  to  build  a 
railroad  from  Hudson  to  the  state  line.  There  was 
another  company  chartered  to  build  a  road  from 
Berkshire  to  Castleton,  but  nothing  was  done  un- 
der this  charter,  nor  likely  to  be  done,  when  the 
other  raised  its  funds,  constructed  its  road  and  had 
it  nearly  completed,  when  the  le.-islature  charter- 
ed another  to  run  along  side  of  it  nearly  half  its 
length,  and  destroy  it.  This  was  old  Castleton 
charter,  altered,  so  as  to  terminate  at  Albany.  Al- 
bany sold  it  out  to  a  Boston  company,  and  they 
buiit  it.  Such  was  the  effect  upon  the  Hudson 
road,  that  they  had  to  apply  for  the  relief  mention- 
ed.  If  the  constitution  was  to  freeze  up  the  pow- 
er of  the  legislature  to  ^rant  these  little  indulgen- 
ces, on  similar  occasions,  the  consequences  were 
obvious.  The  interests  of  stockholders  must  be 


j     i    .  i  UUV1UU3*          Jl  lie      iiiLiricoi.0    vi     otx'vivu 

very  heart's  blood  the  moment  a  debt  was  due,  gacrificed)  for  nobodv  would  buy  a  road  under  such 
unless  it  was  paid.  This  was  neither  good  policy  ,  circumstances_certajn[v  not  the  rival  road,  and 
nor  magnanimous,  nor  the  course  which  the  true  j  one  tenth  ot  the  lien  of  the  State  on  it.  But 
interests  of  the  state  demanded.  Mr.  J.  knew  .  f  -tnig  paranel  road,  the  Hudson  road  would  have 
some  companies  that  had  great  difficulties  to-strug- 1  bgen  &  (aif  &{ock  He  had  the  honor>  the  enter. 
glewith.  He  knew  of  individuals  in  the  same  situ.  lse  and  a]1  the  profit  of  being  a  stockholder  in 
ation.  But  these  companies  had  paid  or  were  pay-  {  HudgoQ  road  ,o  a  large  amount.  But  this  did 
ing  as  fast  as  they  could,  and  he  believed  with  a  j  {b&  principle.  Every  farthing  of  inter- 

little  indulgence  they  would  not  only  do  justice  ^  an/loan  had  go;  to  be  paid  up  and  would  be, 
to  the  state,  but  save  something  to  themselves—  ,f  a  reasonab!e  indulgence  was' extended.  But 
And  he  had  known  individuals,  who,  if  they  had  |  jf  .  shvlock  rule  was  to  be  put  into  the  consti- 
been  pressed  and  coerced  by  their  creditors,  must 
have  been  inevitably  destroyed,  and  yet,  who  had 
bv  indulgence  been  able  to  go  on  and  pay  their 
debts,  and  save  something  for  their  families. 

He  knew  one  company  that  had  $150,000,  that 
paid  interest  regularly  on  it  semi-annually—paid 
two  and  a  half  per  cent,  towards  a  sinking  fund, 
and  extinguished  a  portion  of  the  debt.  But  they 
were  under  the  necessity  within  a  year  or  two  of 
applying  to  the  legislature,  not  to  forgive  them 
the  payment  of.  any  portion  of  the  debt,  but  to 


tution,  that  if  a  man  did  not  pay  on  the  day,  you 
may  cut  his  heart  strings,  both  the  state  and  the 
companv  must  suffer  by  it. 

Mr.  RICHMOND  was  glad  to  hear  that  com- 
panv was  paying  its  interest,  and  intended  to  do 
so  hereafter.  He  would  take  the  gentleman's 
word  for  that,  but  he  should  like  to  enquire 
whether  any  of  the  rail  road  companies  that  had 
stopped  payment  and  had  come  here  and  got  relief, 
ever  resumed  payment  ? 


851 


Mr.  JORDAN   believed   there   was  no  case  in 

which  a  road  had  been  granted  similar   relief  un- 

•irnilar  circumstances.     He   ventured  to  say 

•y  have,  they    have  performed    their  obliga- 

There  are  some  rail  roads  that  have  failed, 

and  one  that  is  in  no  very  promising  condition  to 

ment. 

Mr.  RICHMOND  was  ready  to  grant  that  this 
Hudson  company  had  been  somewhat  patriotic. 
He.  had  seen  the  slate  either  by  chartered  privilege 
to  a  company,  or  by  its  ovyn  woik,  furnish  two 
facilities  forgetting  to  market,  and  in  addition  to 
that  to  gratify  private  speculation,  charter  anoth- 
er company  and  loan  them  its  aid  for  the  con- 
struction of  their  road.  And  this  had  been  done 
by  wise  legislators — men  who  stood  high  in  the 
on  of  the  community.  He  had  been 
;ed  some  times,  he  was  so  in  the  discussion 
on  the  judiciary  committee — with  seeing  some 
very  important  things  a  good  way  off,  and  with 
being  gifted  with  a  remarkable  sagacity.  He  was 
charged  first  so  when  these  loans  of  the  credit  of 
-late  to  incorporated  companies  were  made. 
But  time  had  shown  that  as  to  some  of  them  his 
predictions  had  been  verified.  If  there  could  be 
any  way  devised  by  which  these  companies  could 
pay  up,  lie  was  disposed  to  be  liberal  towards 
them,  but  he  did  not  want  this  matter  kept  open 
and  these  men  never  to  pay. 

Mr.  bRUCE  would  be  glad  to  see  the  whole 
.section  s'rickei)  out,  as  he  did  not  believe  it  would 
add  to  the  strength  of  these  claims, and  he  trusted 
tiu.'ie  was  no  intention  of  diminishing  them.  But 
if  we  were  to  have  the  section,  then  he  though!  it 
needed  amendment,  and  h«  should  at  least  go  lor 
the  amendment  of  Mr.  JORDAN.  But  he  rose  t 
•  •st  to  him,  whether  it  was  not  best  to  strike 
oat  the  vvof' is  proposed  and  insert  nothing. 

Mr.  PERKINS  said  that  the  action  of  the  Le- 
gislature last  winter  had  been  referred  to,  and  that 
some  of  the  remarks  made  by  gentlemen  who  had 
spoke,  had  been  made  there.  He  believed  that 
tin-  Legislature  then,  in  reference  to  the  law  in 
relation  to  the  Hudson  and  Berkshire  road,  acted 
very  much  on  this  principle.  That  if  the  road 
was  sold,  the  state  would  gain  little^or  nothing, 
but  that  :f  the  law  was  passed,  the  interest  would 
be  paid  for  a  little  while  at  least,  and  thus  the 
s'ate  saved  from  its  payment.  It  was  also  said 
that  the  road  was  to  be  repaired,  and  the  rails  ie 
laid,  which  would  improve  it  very  much,  and  that 
if  the  state  should  ever  be  driven  to  enforce  its 
lien  upon  the  road,  and  sell  it,  that  at  least  there 
would  be  more  iron  there,  and  more  value.  He 
>sed  that  these"  were  the  views  of  perhaps  a 
majority  of  the  house,  and  he  did  not  know  but 
ot  tht-;  \vhole  of  them — at  least  they  were  his  own 
Mr.  WORDEN  said  as  reference  had  been  made 
to  this  bill,  and  some  remarks  made  calculated  to 
throw  a  cloud  upon  the  credit  of  the  company 
and  as  he  was  a  member  of  the  committee  of  the 
last  legislature  that  reported  the  bill,  he  desirec 
to  say  one  word  in  reference  to  it.  When  the  bil1 
was  introduced  in  the  committee  he  opposed  it 
and  he  was  the  only  one  there  that  did.  He  die 
it  very  much  on  the  grounds  taken  by  Mr.  HOFF- 
MAN to-day— that  the  state  should  enforce  its  con- 
tracts to  the  very  letter,  until  public  policy  die 
tided  to  the  contrary.  The  considerations  sub 
nutted  by  the  gentleman  from  Columbia  in  refer 


nee  to  the  river  road  were  then  suggested,  and 
here  was  no  suggestion  that  if  the  bill  did  not 
ass,  the  road  would  become  a  defaulter.     It  was 
nade  to  appear  that  the  road  was  of  greater  value 
han  the  debt,  but  that  it  had  become  necessary 
o  expend  in  repairs  almost  as  much  as  was  due 
he  state,  in  order  to  compete  with  the  rival  road, 
and  they  therefore  asked  to  be  enabled  to  go  on 
and  make  these  extensive  improvements  in  the 
)roperty  mortgaged  to  the  state.      Under  these 
considerations  he  yielded  his  assent  to  the  bill  up- 
on just  principles  of  public  policy.     These  facts 
may  occur  again — they  have  in  relation  to  the 
Ei  ie  rail  road.     If  that  road  had  been  sold,  no  man 
n  his  senses  can  believe  for  a  moment  that  it 
ever  would  be  built,  and  the  people  of  the  south- 
ern tier    of  counties   must  have   given     up   all 
lopes  of  its  construction.     It  would  have  been 
sold    under    the    hammer    of  the    comptroller, 
and  Boston  capitalists  would  have    bought  and 
Broken   it    up,   in   order  to    make    a   monopo- 
ly  of  the    travel    through    the    centre  of   the 
State.     Some  legislation  may  yet  be  necessary  for 
this  road,  for  the  State  has  only  partially  released 
its  lien  upon  it.     If  this  provision  is  adopted,  you 
have   a  rigid  constitutional  rule  that  ties  up  the 
Legislation  of  1845   in  regard  to  that  road.     Any 
little   contingency,  any  unfortunate  state  of  the 
money  market  that  might  delay  a  small  expendi- 
ture, would  bring  down  upon  it  the  Comptroller's 
auction  hammer.     Is  it  wise  or  just  to  have  this 
provision  in   the   constitution  and   thus  to  say  to 
the  legislature,  you    are  totally  incompetent  to 
manage  or  honestly  to  legislate    in  questions  of 
this  kind.     You  will  say  to  the   people — we  dis- 
trust your  intelligence.     Are  we  sorry  to  hold 
this  language,  and  ask  them  to  pay  respect  to  our 
opinions   and  declarations.     He  thought  not — he 
thought  that  the  people  of  the  State,   if  they  had 
not  some  time  since,  would  then  begin  to  believe 
that  past  legislatures  and  future  legislatures  were 
quite  as  competent,  as   intelligent,  and  as  honest 
as  we  are,   and  without  imparting  any  want  of  it 
to  us.     There  are   other  circumstances  that  may 
arise  to  show  the  propriety  of  excluding  this  pro- 
vision.    Take  the  case  of  the  Ithaca  and  Oswego 
rail-road,  sold  by  the  Comptroller,   unwisely  he 
submitted.     It  was  bought  by  a  company,  which 
was   immediately   incorporated,    and    who  have 
more  than  quadrupled  the  money  paid  for  it.    He 
insisted  that  under  a  wise  husbandry  of  this  claim 
the  State  might  have  realized  its  whole  amount. 
He  submitted  that  it  was  wiser  to  leave  this  sub- 
ject to  the  legislature.     He  was  averse  to  loaning 
money  to  these  roads,  nor  had  he  ever  advocated, 
or  voted  for  one  of  them,  but  he  was  opposed  to 
prohibiting  the  legislature  from  dealing  with  pro- 
perty to   the  amount  of  $1,600,000  in  any  way 
they  might  deem   most  wise  and  prudent  for  the 
State. 

Mr.  JORDAN  corrected  a  previous  statement 
as  to  the  amount  of  the  sinking  fund  of  the  Hud- 
son and  Berkshire  rail-road.  He  should  have 
stated  it  at  2  per  cent. 

Mr.  HOFFMAN  said  that  the  gentleman  from 
Ontario  (Mr.  WORDEN)  seemed  to  suppose  in  the 
case,  that  if  we  lay  down  any  rule  to  guide  this 
judgment  of  the  legislature  in  their  action  in 
matters  of  this  sort,  that  we  would  injuriously 
curtail  the  powers  and  rights  of  the  people.  He 


852 


(Mr.  H.)  thought  different.     It  was  obvious  that 
we  should  lay  down  a  rule  to  prevent  the  legis- 
lature from   taking  a  course  calculated  to  injure 
the  just  rights  of  the  people  of  the  state.     The 
gentleman  seems    to  suppose    also  that   if  the 
Erie  railroad  had  been  sold  under  the  power  of 
the  state,  that  it  would  have  operated  injuriously 
as  to  the  completion  of  that  great  work.     He  (Mr. 
H.)  had  had  occasion  to  look  into  this  matter  and 
study  it  with  a  Considerable  degree  of  attention, 
and  in  his  opinion  it  would  have  been  the  great- 
est good  fortune  that  could  have  happened  to  the 
district  through  which  it  passes.     It  would  have 
disconnected  it  from  all  old  rotten  contracts  writ- 
ten and  by  parole  entered  into  by  the  old  mana- 
gers— and  of  the  fictitious  stocks,  which  in  his 
opinion  together  with  these  claims,  are  the  great- 
est burthens  upon  it.     And  if  it  had  been  season- 
ably sold,  he  had  no  doubt  but  that  it  would  have 
been  in  a  much  move  forward  state  of  completion 
than  it  is.     But  this  had  gone  by,  and  the  com- 
mittee did  not  desire  to  interfere  with  the  com- 
pletion of  that  road.     It  may  be  very  convenient 
to  have  these  roads  come  here  and  ask  relef,  and 
to  grant  it,  and  when  two  or  three  of  them  had 
some  kind  of  relief  granted,  the  remainder  can 
ask  it  with  great  propriety,  and  it  could  hardly 
be   refused,  and  in  this   way  the  entire  rights  of 
the  state,  to  compel  payment  be  from  time  to  time 
frittered    away.     The   railroads    have   abundant 
time  to  perform  their  obligations  to  the  state. 
All  of  them  but  the  Erie  road  were  completed 
and  in  operation,  and  had  nothing  to  do  but  to  go 
on  and  pay.     When  the  gentleman  from  Columbia 
argues  here  that  the  state  by  granting  a  rival  char- 
ter injured  a  company  and  made  it  a  subject  for 
relief,  he  (Mr.  H.)  thought  it  was  putting  the  re- 
lief on  a   bad  ground.     When   a  route  had  been 
granted  he  hoped  it  was  not  claimed  that  the  le- 
gislature could  not  grant  a  rival  route.     He  was 
strongly  apprehensive   that  the  state  would  be 
obliged  to  do  it.     And  that  in  some  districts  the 
people  would  hardly  be  able   to  get  along  with 
these  companies,  so  naturally  disposed  to  become 
monopolies,  unless  they  could  by  rival  routes  keep 
down  their  claims.     He  did  not  consider  that  the 
Hudson  and  Berkshire  road  by  taking  a  charter 
acquired  any  right  that  could  not  be  given  to  a 
rival  charter.     He  did  not  believe  at  all  in  any 
such  monopoly.     He  saw  nothing  in  the  argu- 
ment of  the  gentleman  from   Ontario  that  this 
would  be  tying  up  the  useful  and  beneficial  pow- 
er of  the  people.     He  believed  in  any  of  the  ca- 
ses that  had  occurred,  if  the  people  of  the  state 
had  been  consulted  they  would  have  said  to  those 
companies — you  can  pay  and  you  must  when  you 
agreed  to.     The  people  stand  in  this  case  securi- 
ty  for  those  debts,   and  their   rights  should  be 
strictly  though  not  severely  enforced.  He  did  not 
wish  to  leave  the  power  with  the  legislature  to 
compound,  to  extend  and  to  fritter  away  all  these 
debts,  and  at  last  leave  the  people  to  do,   as  they 
are  now  doing  in  relation  to  the  $3,715,000,to  pay 
the  interest,  and  ultimately  to  pay  the  principal. 
If  they  will  bring  any  thing  on  sale,  he  was  quite 
willing  that  it  should   go  into  their  sinking  fund. 
The  gentleman  thinks  that  the  people  will  begin 
to  learn,  he  did  not  know  but  they  had  already, 
that   there  would  be  as  much  wisdom  in  future 
legislatures  as  in  this  Convention.    He  (Mr.  H.) 


believed  they  always  knew,— that  they  expected 
more  than  they  found,  from  the  complaints  he  had 
heard,  and  were  not  satisfied  with  the  wisdom  of 
making  these  loans  or  of  extending  them.  He 
did  not  believe  that  any  one  of  these  companies- 
that  was  really  determined  to  pay  had  not  abund- 
ant time  to  do  so,  if  they  will  be  faithful  and  hon- 
est in  the  trial.  And  it  was  to  that  fidelity  and 
honesty  he  wished  to  appeal  in  this  section.  He 
did  not  wish  that  they  should  be  obliged  to  come 
to  the  legislature  and  persuade  conscientious,  lib- 
eral gentlemen,  like  the  gentleman  from  Ontario, 
jy  a  cock  and  a  bull  story,  that  it  was  right  to 
extend  them  credit.  The  gentleman  supposed 
that  the  state  had  suffered  loss  by  the  sale  of  the 
[thaca  and  Owego  railroad— he  (Mr.  H.)  was  glad 
;hat  it  was  gone  and  sold  and  had  brought  some- 
thing into  the  treasury,  and  we  knew  the  end  of 
t.  He  did  not  desire  to  deal  with  them  in  such 
i  way  as  if  they  were  solvent,  although  we  doubt- 
ed it.  If  they  are  solvent,  let  them  pay,  if  they 
are  not,  let  them  be  sold.  The  state  loses  less 
by  this  rule  than  by  a  lax  liberality.  It  had  lost 
$3,000,000  already  by  it;  and  he  did  not  wish  to 
extend  that  rule  for  their  benefit  any  further. 

Mr.  CHATFIELD  hoped  that  the  amendment 
of  iMr.  JORDAN  would  not  prevail.  If  any  por- 
tion of  it  was  adopted,  he  hoped  it  would  be  noth- 
ing more  than  to  strike  out  the  words  "  defend." 
The  gentlemen  from  Columbia  had  enquired  why 
should  we  go  mad  on  this  subject  more  than  any 
other.  Now  he  (Mr.  C.)  viewed  this  proposition 
as  an  evidence  of  returning  sanity.  The  day  of 
madness  on  the  subject  had  gone  by.  and  we  could 
point  to  the  time  when  the  incubus  on  the  rights 
of  the  people  was  fastened  upon  them  by  the  leg- 
islature as  a  time  of  public  insanity.  He  believ- 
ed he  had  the  honor  of  a  seat  in  the  legislature 
during  most  of  that  time,  and  he  did  not  recollect 
that  a  previous  loan  had  ever  been  made  to  a  rail 
road  corporation,  except  the  New  York  and  Erie 
rail  road.  There  was  a  loan  to  one  corporation, 
the  Delaware  and  Hudson  canal  Co.  so  qualified 
that  he  could  point  to  it  as  the  evidence  of  the 
safety  of  previous  legislation  compared  with  that 
of '39  and  '91.  He  looked  back  toth'.se  periods 
now  with  something  like  astonishment,  when 
these  lobbies  and  even  this  hall  were  filled  to> 
overflowing  with  cormorants  asking  literally  to  be 
allowed  to  put  their  hands,  up  to  the  elbows,  into 
the  public  treasury.  And  he  remembered  very 
well  that  when  the*e  large  and  liberal  promises  of 
secuiity  were  made  to  tne  State,  he  took  occasion- 
to  say,  that  they  were  just  about  as  good  for  the 
State  as  a  hatful  of  log.  It  was  the  period  of  in- 
sanity, and  the  people  in  many  districts, — lie  knew 
that  they  did  in  the  county  he  represented — de- 
precated these  loans  as  the  very  worst  of  all  the 
bad  legislation  of  that  period,  and  they  have  not 
changed  their  opinion.  Could  any  man  now 
doubt  that  a  majority  of  the  tax-paying  citizens  of 
the  State  and  those  who  are  not  to  be  bent  fitted 
by  any  of  tho=e  works  of  internal  improvement, 
desire  that  there  should  some  barrier  be  interpos- 
ed between  legislation  and  popular  rights?  Aa 
the  gentleman  from  Herkimer  had  said,  there  is 
ample  time  for  these  roads  to  come  to  a  conclusion 
whether  they  will  or  will  not  pay,  or  to  do  the 
other  thing — surrender  their  charter  to  the  State. 
There  is  but  one  that  is  within  a  short  peiiod  of 


853 


redemption,  and  that,  is  the  Delaware  and  Hudson 
Canal   company.     The  Auburn  and  Syracuse  has 
twelve  years — ample  time.     The  Auburn  and  Ro- 
chester,fourteen  or  fifteen  years.  The  Long  Island 
fifteen  years.  The  Hudson  and  Berkshire,  nmeieen 
years 5  and  he  ventured  lo  predict  that  the  name  ol 
tbat  road  would  be  hardly  known— it  will  have  pas- 
sed to  the  tomb  of  ihe  capulets.  If  it  had  not  begun 
to    pay  its  interest  to  the   sinking  fund,   then    the 
only  chance  WHS  for  the  State  to  save  what    little 
it  can  from  the  iron  of  '.he  road.     He  had  been  in 
sight  ol  that  road  this  summer,  and  heard  that    it 
was  not  the  design  of  the  company  to    relay  their 
tracks;  if  they  did  not,  he  lelt  it  to   the  gentle- 
man   from  Columbia    to  say   whether   there  had 
been    entire    fairness    in    this   matter.     We   are 
not  to  look  at  these  matters  as   though    we  had 
to    regard    only    the   rights   of  the    stockholders 
ot  the  road,  we   are    to   look    at    the    rights    ol 
the    great    people,  because    it    is    their    money 
that  must  ultimately  pay  these  debts.     The  credit 
of  the  state  is   pledged  lor    the  payment  of  every 
dollar   of    it,  and   unless   the   slate   realizes   the 
amount  in  some  way,  the  people  have  to  pay,  and 
not  the  holders  ot  the  stock.     And  he  did  not  be- 
lieve that  when   the  time  came,  and  a  road  failed 
to  pay  interest  on  this   stock,  that  when  the  lime 
arrived   to   nay  the   principal,    they  could  be  ex- 
pected to  do'that.  When  capitalists  fail  to  pay  in- 
terest, it  is  time  to   calculate  that  they   are  in  a 
failing   condition.      He   held  th,it  the  more  roads 
that  were  sold  when  they  failed  to  pay  their  debts. 
the  belter  it  was   for  the  interest  of  the  state  and 
all   concerned.     He   did  not  believe  that  the  sale 
of  the  Ithaca  and  Owego  road  was  injurious  to  the 
company.     The  state   had  been  admonished  from 
time  to  lime;  that  the   company  never  expected  lo 
do  any  Jliinjj— and  that  the  time  had  gone  by  when 
they  could    pay  either    interest   or   piincipal,  and 
the'r-late  could  only  have  the  satisfaction  of  wait 
ing  from  year  to  year,  until  what  little  was  left  to 
the  state  was   lost  from  time    to  tune.     He  hoped 
this  section  would    be  adopted.     He  hoped  never 
to  see  the   lobbies  filled  by  the  representatives  of 
these   companies,  urging   the  stale  to  do  a  wrong 
thins — to  release  them   from  their  debts,  and  dis- 
charge them   from  their   liabilities.     He  had  not 
that  entire  confidence  in    legislation,  as  to  money 
matters,  which  the  gentleman  from  Orleans  seem 
ed  to  hate — he  haJ  seen  loo  much  of  it.    In  times 
when    legislation   seemed    to   have   lost  common 
sense,  arid  all  sense  of  what  was  due  to  their  con- 
stituent11, it   yielded  to  the  importunities  of  thes. 
corporations  and    localities,  to  the  great  injury  o 
the  people  of  the  slate;  and    he  would  put  in  the 
Constitution  a  provision  which  would  say  to  fhose 
gentlemen,  prepare  to  pay  at  the  day  your  debt  be- 
comes due,  and    if  not,  do  not  expect  to    prevail 
upon    legislation  to  release   you  from  it,  and  cas 
its  burden  upon  the  people  of  the  state.     He  was 
not  able  to  say  that  this  debt  was  any  portion  of  i 
what  theComptroller  calls  the  contingent  debt,  or 
is  lost,  but   at  all    events   he  would    put  it  out  o 
the  power   of  letjislation,  if  it  was  lost,  to  releas( 
them.     He   would  have   them   foreclose  immedi- 
ately the  rights  of  the  state. 

Mr.  VAN  SCHOONHOVEN  said  there  seem 
ed  to  be  on  the  part  of  some  gentlemen  in  thi 
Convention,  a  sort  of  morbid  disposition  to  visi 
vengeance  upon  associations  who  have  obtainec 


he  state  credit.  This  must  have  struck  the 
mind  of  every  impartial  gentleman  that  observed 
he  peculiar  gratification  the  gentleman  from 
lerkimer  took  to  himself  in  his  rabid  denuncia- 
ions  of  the  legislature  and  corporations  that  had 
been  before  it,  and  also  of  the  state  works  gener- 
ally. He  even  went  so  far  HS  to  venture  to  de- 
nounce the  salt  tax,  the  steam  boat  tax  and  the 
auction  duties,  in  opposition  to  the  whole  senti- 
ment of  the  state,  and  said  that  it  was  a  luxury  to 
iim  to  give  them  a  kick  to  help  them  along  as 
they  were  going  down  hill.  He  (Mr.  V.  S.)  should 
not  stop  to  comment  upon  the  luxury  of  this  mat- 
ter, but  he  would  remind  the  Convention,  that 
when  gentlemen  avowed  such  sentiments,  so  di- 
re^tly  in  opposition  to  the  general  sentiment  and 
action  of  the  state,  it  was  time  to  consider  wheth- 
er those  gentlemen  were  proper  counsellors,  par- 
ticularly when  propositions  of  that  character  were 
proposed  to  be  inserted  in  the  Constitution.  But 
he  should  not  refer  further  to  these  matters  now, 
although  he  might  hereafter  more  in  detail. — 
What  was  the  question  before  the  Conven- 
tion now  ?  Was  it  whether  it  was  proper  ten,  fif- 
teen or  twenty  years  ago,  to  establish  these  roads 
or  loan  the  credit  of  the  state  to  them  ?  Was  it 
worth  while  to  discuss  the  point  whether  the  le- 
gislature at  the  period  to  which  the  gentleman 
from  Otsego  referred,  was  insane  or  not,  or 
whether  the  gentleman  was  right,  or  whether  the 
legislature  all  wrong.  Now  he  apprehended  that 
the  gentleman  might  very  well  be  right  at  this 
moment,  and  yet  not  claim  any  superior  wisdom 
over  those  w'ho  then  acted.  These  gentlemen 
are  now  speaking  under  the  light  of  experience, 
and  what  they  have  said  only  goes  to  show  that 
calculations  made  at  that  time,  were  unfounded 
and  erroneous.  So  in  regard  to  all  the  predic- 
tions made  by  the  very  best  state  officers  in  re- 
gard to  the  canal  expenses,  all  of  them  varied  ve- 
ry widely  from  the  fact:  just  so  ivith  regard  to 
these  loans  to  these  companies.  What  then  did 
all  this  denunciation  amount  to  ? 

Mr.  GHATFIELD.  There  is  a  principle  in- 
volved. 

Mr.  VAN  SCHOONHOVEN  said  that  would 
open  the  discussion  of  another  question.  He 
held  that  it  was  proper,  if  the  State  could,  to 
aid  any  of  the  works,  and  she  ought  to  do  it.  He 
held  that  all  these  public  improvements  were 
public  blessings,  and  therefore  ought  to  receive 
the  aid  of  the  State.  In  principle  therefore  he 
differed  with  the  gentleman  from  Otsego.  He  ad- 
mitted that  the  State  should  not  do  this  unless  it 
could  see  its  way  clearly,  and  he  had  no  objec- 
tions to  putting  all  the  guards  in  the  constitution 
on  the  subject  that  could  be  devised.  The  diffi- 
culty had  been  that  the  State  had  loaned  its  mon- 
ey under  misrepresentations.  It  had  acted  as  all 
creditors  in  community  were  liable  to  do:  it  was 
a  fallible  organization  and  was  liable  to  these  mis- 
takes. He  did  not  stand  up  there  to  advocate  the 
policy  that  the  State  shall  loan  its  credit  as  it  has 
done  heretofore,  although  he  had  no  doubt  that  the 
men  who  did  it  acted  honestly,  and  as  they  sup- 
posed wisely.  It  seemed  to  afford  much  gratifi- 
cation to  the  gentleman  from  Herkimer,  that  the 
Ithaca  and  Oswego  rail  road  was  sold,  in  order 
that  it  might  be  wound  up,  and  we  might  see  the 


854 


end  of  it,  and  know  where  it  stood.     As  if  know- 
ledge on  the  subject  was  of  great  importance. 

Mr.  HOFFMAN :  It  was. 

Mr.  VAN  SCHOONHOVEN  said  that  it 
was,  if  it  was  important,  for  the  state  to  know 
that  by  a  little  forbearance  and  indulgence  it 
might  have  saved  half  of  the  loan  instead  of  losing 
nearly  the  whole  amount.  This  certainly  was  ve- 
ry valuable  information,  very  gratifying  to  know. 
It  might  have  been,  had  we  known  it  before  the 
road  was  sold.  The  state  ought  not  to  be  placed 
on  a  higher  level  than  individuals  in  the  state,  in 
the  matter  of  collecting  and  enforcing  the  pay- 
ment of  debts,  and  we  ought  not  to  go  beyond 
that  rule  in  making  a  Constitution.  This 
was  a  rule  which  no  sane  man  could  impose 
upon  himself  in  his  private  dealings.  Under 
such  a  rule  as  this,  a  company  having  a  loan  of 
the  State  credit  that  might  desire  to  expend  mo- 
ney on  and  improve  the  property  mortgaged  to 
the  State,  could  not  do  so — the  rigid  enforcement 
of  payment  by  the  day,  whether  the  State  wanted 
its  money  or  not,  would  be  the  only  alternative. 
He  cited  the  case  of  a  rail-road  which  last  year 
applied  for  leave  to  pay  in  the  money  borrowed, 
and  leave  was  refused,  merely  because  the  State 
could  make  more  by  compelling  the  company  to 
hold  on.  So  long  as  a  company  was  solvent,  and 
only  asked  an  extension  from  circumstances  that 
sometimes  embarrassed  the  men  of  the  highest 
credit,  the  legislature  ought  to  be  left  the  discre- 
tion to  extend  the  time  of  payment,  if  the  interest 
of  the  State  would  not  be  jeoparded,  and  those  of 
stockholders  might  be  promoted  by  it,  or  they 
saved  from  making  sacrifices.  This  was  the  sub- 
stance of  the  amendment,  and  it  could  by  no  tor- 
turing be  made  to  have  a  tendency  to  encourage 
"  cormorants"  or 
public  treasury. 


foragers"  to  depredate  on  the 
The  whole  idea  of  this  section 


was  a  distrust  of  the  legislature  or  the  Executive, 
which  for  one  he  did  not  feel — and  there  was 
scarcely  a  governor  of  recent  date,  that  had  not 
signed  some  of  these  bills,  with  the  exception  of 
the  present  governor. 

Mr.  WORDEN  said  the  present  Governor  in- 
troduced the  bill  to  loan  the  credit  of  the  State 
to  the  Delaware  and  Hudson  canal  company. 

Mr.  VAN  SCHOONHOVEN  was  aware  that 
he  had  advocated  the  doctrine  denounced  here 
with  all  sorts  of  epithets,  when  entertained  and 
acted  on  by  legislators— as  if  epithet  and  denun- 
ciation was  to  carry  through  this  section.  He 
trusted  the  entire  section  would  be  struck  out — 
and  because  it  enforced  that  course  upon  the  le- 
gislature, which  circumstances  might  make  utter- 
ly suicidal.  But  at  all  events,  he  hoped  the 
amendment  proposed  by  Mr.  JORDAN  would  pre> 
vail. 

Mr.  HAWLEY  said  that  the  section  as  report- 
ed by  the  committee  was  uncalled  for,  and  in  his 
judgment  ought  to  have  no  place  in  the  constitu- 
tion. He  thought,  however,  that  if  the  amend- 
ment of  the  gentleman  from  Columbia  (Mr.  JOR- 
DAN) should  be  adopted,  it  might  not  then  be 
very  mischievous.  He  should  therefore,  vote  for 
the  amendment,  but  hoped  to  have  an  opportuni- 
ty of  voting  for  the  motion  to  strike  out  the  whole 
section,  which  the  gentleman  from  Rensselaei 


HOFFMAN,)  asserts  that  this  section  is  designed 
to  remedy  abuses  which  past  experience  has 
brought  to  light.  To  prevent  the  legislature 
from  extending  the  time,  and  varying  the  condi- 
tions upon  which  certain  rail  roads  obtained  loans 
of  the  credit  of  the  state.  He  has  given  us  some 
instances  of  such  legislation  ;  but  he  has  not  told 
us  how,  in  what  manner  or  to  what  extent,  the  in- 
terest of  the  state  has  suffered  thereby.  He  has 
not  informed  us  how  the  state  would  have  been 
benefited  by  pressing  these  defaulting  rail  roads 
to  an  immediate  and  unconditional  sale.  He 
should  have  been  able  to  give  a  reason  why  this 
section  would  remedy  the  evil  of  which  he" com- 
plains ;  but  this  he  had  utterly  failed  to  do.  The 
gentleman  from  Herkimer  has  made  no  allusion 
to  the  default  of  the  Ithaca  and  Owego  rail  road 
company,  to  show  the  necessity  of  this  provision. 
But  a  reference  to  the  result  of  the  sale  of  that ' 
road,  would  fully  illustrate  the  mischevious  ten- 
dency of  this  section,  if  it  should  be  adopted  as  a 
constitutional  provision. 

A  law  of  1838,  authorized  a  loan  of  the  credit 
of  the  state  to  that  company  to  the  amount  of 
$300,000.  The  act  provided  that  when  proof 
should  be  made  to  the  satisfaction  of  the  Comp- 
troller, that  $500,000  had  been  actually  expended 
in  construction,  and  the  road  completed  from  Ith- 
aca to  Owego,  the  stock  should  be  issued.  It  ap- 
pears that  the  requisite  proof  was  made  to  the 
satisfaction  of  the  then  Comptroller  (Mr.  FLAGG,) 
nd  bonds  to  the  amount  of  $287,700  were  issued 
by  him  in  the  fall  of  1838.  Subsequently,  by 
irtue  of  an  act  of  the  legislature  of  1840,  there 
was  a  further  issue  of  $28,000,  making  a  sum  to- 
tal of  $315,700.  In  case  the  company  should 
ail  to  fulfil  the  conditions  upon  which  the  above 
.oan  was  made,  the  Comptroller  was  authorized 
law,  to  advertise  and  sell  the  road  to  the  high- 
est bidder,  or  to  bid  it  off  for  the  state.  This  law 
was  not  mandatory,  but  permissive,  leaving  him 
to  exercise  a  sound  discretion  in  regard  to  the 
sale,  and  so  to  act  as  to  secure  the  best  interests 
of  the  state,  and  to  re-imburse  to  the  greatest  ex- 
tent the  state  treasury. 

In  1841,  the  company  failed  to  pay  the  interest 
due  on  the  loan,  and  the  Comptroller  decided, 
(whether  wisely  or  unwisely,  I  will  not  say)  that 
the  interest  of  the  state  demanded  the  immediate 
sale  of  the  road,  and  he  advertised  it  for  sale  to 
the  highest  bidder,  in  April,  1842. 

It  may  not  be  improper  here  to  remark,  as  to 
the  manner  in  which  that  sale  was  conducted. — 
And  in  the  history  of  this  matter,  it  may  be  ne- 
cessary to  allude  to  the  action  of  other  individu- 
als besides  the  comptroller.  But  in  so  doing,  I 
wish  to  be  understood  as  imputing  no  improper 
motive  to  either,  and  shall  only  make  such  allu- 
sions so  far  as  may  be  necessary  to  bring  the  facts 
in  the  case  fairly  before  the  convention.  The 
Comptroller  attended  at  the  capitol  on  the  day  ap- 
nnintfid  and  offered  the  road  for  sale.  I  am  credi- 


had  intimated  that  he  should 
time.      The  chairman  of  the 


make  at  a  propei 
committee    (Mr 


pointed  and  offered 
bly  informed  that  a  number  of  gentlemen  were 
present  for  the  purpose  of  bidding  for  the  pur- 
chase of  the  road,  and  I  will  believe  until  other- 
wise informed  that  they  were  prepared  to  enter 
into  a  competition  in  the  purchase.  Mr.  Flagg 
then  informed  the  bidders  present  that  he  should 
not  bid  a  dollar  for  the  road,  on  the  part  of  the 
state,  thereby  withdrawing  all  competition  from 


855 


that  quarter.     Messrs.  Yates  &McIntyre  request- 
ed that  the  sale  be    postponed,  until    they  should 
opportunity  tor  e  ,i,  und  intimated 

that  they  would  become  bidders  on  the  adjourned 
The  sale  was  adjourned  in  accordance  with 
that  request  until  the  '--'(Mil  of  May  following.  I 
believe,  sir,  that  an  arrangement  was  made  by 
the  bidders  by  which  the  road  was  purchased 
without  competition— which  as  speculators  they 
doubtless  had  a  right  to  do,— for  it  appears  that 
on  the  adjourned  djy,  Mr.  iVlclntyre  purchased  the 
road  for  the  paltry  sum  of  four  thousand  five  hun- 
dre.d  dollais.  Now,  sir,  here  was  a  rail  road  ot 
about  thirty  miles  in  length,  upon  which  evidence 
had  been  turmshed  to  the  satisfaction  of  the  Comp- 
troller of  an  expenditure  of  $500,000  inxonstiuc- 
tion,  and  upon  which  the  credit  ot  the  state  had 
been  loaned  to  the  amount  ot  $315,700, sold  with- 
out competition  tor  §4,500. 

Sir,  I  have  been  informed  that  the  iron  alone  for 
purposes  other  than  rail  road  iron,  was  worth  ovei 
$30,000  00;  and  that  the  tiansportation  ol  the  iron 
irorn  tide  water  to  Ithaca  cost  some  $7000;  neaily 
double  the  amount  actually  obtained  lor  the  entire 
road.  Subsequent  events  show  that  this  road  was 
not  considered  valueless  by  the  purchasers.  At 
the  next  session  of  the  legislature  following  the 
sale,  the  company  applied  for  a  charter  under  a 
new  name,  with  a  capital  of  $150,000.  But 
the  parties  interested  appeared  to  be  unwilling  at 
that  time,  so  soon  after  the  purchase,  to  admit 
that  they  had  made  a  speculation  out  ol  the  state 
to  the  amount  of  over  $140,000,  and  the  legisla- 
ture not  being  willing  to  create  fictitious  capital 
to  that  amount,  the  company  was  obliged  to  take 
a  charter  1>  r  the  time  being  with  a  capital  of 
$18.000.  This  was  the  amount  said  really  to  have 
been  invested  in  the  purchase  of  the  road  from 
the  state,  and  the  cars  and  fixture?  from  the  old 
company.  But  legislation  on  tins  subject  did  not 
end  here.  I  find  by  reference  to  the  proceedings 
of  [he  legislature  of  last  winter,  that  this  company 
o'tt; nued  an  amendment  to  their  charter,  authori- 
zing an  increase  of  the  capital  to  the  amount  ot 
')00.  I  am  not  aware  what  inducements 
were  brought  to  bear  upon  the  legislature  to  pro. 
cure  this  amendment,  but  suppose  that  it  would 
not  be  done  without  a  plausible  reason.  I  have 
no  doubt,  sir,  that  there  is  real  value  in  the  road 
I  do  not  believe  it  is  worth  $500,000,  neither 
am  I  convinced  that  it  is  worth  $300,000. 

Mr.  J.  J.  TAYLOR.  It  hasrrade  but  one  divi- 
dend since  the  piuchase  was  made. 

Mr.  HAYVLEY.  Will  the  gentleman  from  Ti- 
og  i  it'll  us  what  per  cent  that  dividend  was  upon 
tne  capital  stock,  and  what  was  the  amount  of 
capital  stock  at  the  time? 

Mr.  TAYLOR.     I  cannot  say. 
Mr.  HAVVLEY.     I  am  obliged  to  the  gentle- 
man lor  the  information.     He  admits  that   there 
has  been  one  dividend  to  the   stockholders   since 
the  purchase,  and  I  doubt  not  he  is  well  informed 
on  the  subject;  tor  I  apprehend,  if  he  is  not  per 
•  '1  in  this  matter,  .some  of  his  con- 
stituents art-.  _  Hero  has  been  a  dividend  of  profit*, 
and  it  cannot  be  denied  that  there  is.-ome  value  in 
the  road.     I  believe,    sir,  that    if  an 
policy    had    been    pursue  1    in  this  matter — if  the 
Comptroller   had   determined   otherwise,  and  al- 
lowed a  succeeding  legislature  to  have  taken  mea- 


es lo  secure  in  the  best  manner  a  reimbursiuent 
of  the  treasury,  the  sacrifice  need  not  have  been 
so  great.  The  road  i.s  now  valuable,  and  when  the 
New-York  and  Erie  railroad  :-l  all  be  completed, 
it.s  value  will  be  greatly  enhanced.  It  is  not  ex- 
travagant to  suppose  that  il  this  lien  had  been 
kept  in  life  by  wise  and  prudent  legislation,  in- 
stead of  the  meagre  sum  of  $4,500,  a  sum  not  less 
than  some  hundred  thousand  doiluis,  might  have 
been  realized  to  the  treasury.  Thus  to  shackle 
the  power  of  the  representatives  of  the  people 
over  matters  of  this  character,  would  be  unwise, 
and  he  hoped  the  whole  section  would  be  strick- 
en out. 

Mr.  HOFFMAN  did  not  know  what  the  proof 
was  that  $500,000  had  been  expended  on  the  Itha- 
ca and  Owego  road.  But  he  had  once  the  plea- 
sure ot  seeing  if,  and  he  could  say  that  it  was  very  ' 
small.  The  rail  was  very  light  indeed,  and  he 
believed  that  the  quality  was  at  least  as  bad  as  the 
quantity  was  small.  The  $317,000  Of  state  credit, 
should  be  applied  ft  improve  the  road,  which  was 
then  very  much  out  of  repairs.  But  on  the  best 
enquiry  he  could  make,  he  did  not  think  that 
there  was  the  least  reason  to  suppose  that- a  sin- 
gle dollar  derived  from  the  sale  of  the  Stale  stocks 
ever  got  into  that  ioad  in  the  shape  of  repairs. — 
The  road  needed,  when  the  loan  was  made,  at 
least  $300,000 ot  repairs,  and  it  continued  to  wear 
out.  And  gentlemen  will  see,  from  this  statement 
of  i'acts,  that  the  purchasers,  on  the  usual  princi- 
ples of  relief  laws,  would  be  entitled  to  get  back 
the  money  they  paid  for  it.  Some  part  of  the 
$317,000  was  applied  in  getting  engines  and  cars, 
but  these  are  moveables,  not  fixtures.  But  it  was 
decidtd  that  these  fixtures  were  not  within  the 
Slate  mortgage,  and  the  old  company  said  to  the 
new  one,  if  you  will  have  these  cats  and  engines,.,' 
you  must  pay  for  them.  And  they  did  pay  $13.,- 
000  tor  them.  He  had  never  entertained  even  a 
suspicion  that  the  interests  ot  the  State  were  sa- 
crificed by  the  sale  of  that  road.  He  should  have 
regarded  it  as  a  misfortune,  if  the  State  had  be- 
come a  bidder  and  purchased  the  road,  for  then  it 
would  have  been  bound  to  keey  and  maintain 
the  road  in  good,  sound,  operative  condition. — 
They  would  have  been  bound  not  to  have 
made  $^00,000  of  repairs  only,  but  make  pro- 
vision for  the  relay  of  the  road,  and  he  be. 
lieved  that  no  one  pretended  that  those  ^ivho 
had  the  management  of  the  road  had  taken  unrea- 
sonable care  to  keep  it  in  repair.  It  was  true 
that  the  comptroller  did  say  that  he  should  not 
bid  it  in,  and  if  he  had  said  any  thing  else,  he 
would  have  been  insane.  He  had  no  very  great 
idea  of  that  high  morality  which  conceals  on  the 
lips  the  truth  that  is  in  the  heart,  and  if  the  gen- 
tleman commends  it  in  his  own  practice,  he  (Mr, 
II.)  did  not  commend  it  in  a  public  officer,  when 
the  state  imposes  a  duty  upon  him.'  The  gentle- 
man from  Rensselaer  (VAAT  SCHOONHOVKN,) 
seemed  to  suppose  that  he  (Mr.  H.)  had  a  morbid 
feeling  on  the  subject  of  these  debts  ;  he  ^Mr.  H.) 
was  not  aware  that  he  had — he  had  never  done 
any  thing  to  create  them.  When  the  Erie  en- 
largement on  some  scale  was  proposed,  not  as  had 
been  adopted  since, — among  the  last  acts  of  his 
official  life  here,  he  signed  a  report  part  of  which 
had  been  read  by  a  gentleman  here  to-day  (Mr. 
ARCHER)  and  had  been  alluded  to  by  others,  on 


856 


the  subject  of  a  ship  canal  from  Oswego  to  the 
Hudson  river,  as  against  a  canal  8  feet  by  80.  The 
gentleman  read  to  the  very  point,  and  there  he 
stopped — and  there  the  gold  adder  lies.  The  ca- 
nal board  argued  that  these  canals  should  be  im- 
proved—so Car  he  read— but  he  did  not  like  the 
truth  that  followed,  for  they  said  also,  that  no 
debt  should  be  created  for  any  such  improvement; 
and  the  gentleman  had  the  integrity  in  reading 
it,  to  read  one  half,  and  omit  the  other  half,  and 
because  he  (Mr.  H.)  entertained  thai,  opinion,  the 
gentleman  supposed  that  he  had  grown  rabid,  and 
run  mad  on  the  subject  of  the  public  debt.  As  to 
the  rail  roads,  the  public  treasury  has  been  pretty 
largely  foraged  upon  by  them.  It  is  a  mat- 
ter of  history  :  and  with  a  rail  road  debt,  on 
which  the  state  is  paying  the  interest  on  a 
principle  of  more  than  $3,000,000,  he  was  not 
very  easily  lead  to  believe  that  all  of  it  had  fallen 
upon  the  treasury  through  the  honest  mistake  of 
those  who  made  application  for  it.  It  might  be 
so— there  was  a  mere  naked  possibility — but  it 
was  entirely  incredible.  He  believed  that  in  too 
many  instances,  at  leastsome  of  the  operators  and 
actors,  cared  very  little  whether  the  state  would 
ever  be  recompensed  or  not.  Honest  men  may 
have  been  deluded  into  it,  and  the  possibility  was 
that  if  they  could  be  brought  here  to  speak  for 
themselves,  they  would  say  to  the  undertakers 
and  operators— you  have  plundered  the  state,  as 
you  have  plundered  us.  Whether  the  legislature 
acted  honestly  or  dishonestly  in  these  matters,  he 
would  not  be  removed  from  his  position.  If  they 
are  so  likely  to  be  imposed  upon — if  three  or  four 
millions  of  debts  are  to  come  out  of  these  impos- 
tures practised  upon  them — then  he  desired  to 
guard  the  people  by  constitutional  amendment 
against  any  future  imposture  in  the  matter.  If 
they  acted  from  improper  motives,  certainly  even 
the  gentleman  from  Rensselaer  would  not  decline 
to  tie  them  up — if  from  proper  motives,  but  under 
mistakes,  he  desired  to  prevent  a  repetition  of 
them.  That  was  what  he  desired.  He  never  had 
any  objection  to  any  of  thesQ  rail  roads  or  canals. 
That  was  not  the  difficulty.  What  he  objected 
to  was  that  the  state  should  be  made  debtor  on  a 
credit  system  for  constructing  the  works.  That 
was  the  ground  of  difference  between  the  gentle- 
man from  Rensselaer  and  himself.  The  gentle- 
man^ was  willing  to  go  into  a  debtor  system,  to 
carry  out  these  projects.  He  (Mr.  H.)  was 
willing  that  all  men  who  had  means  should 
engage  in  any  project  they  might  judge  for  their 
interest — each  man  judging  in  his  own  case.  But 
when  the  question  takes  a  form  that  disguises  and 
conceals  from  the' people  that  they  are  to  be  made 
debtors  and  mortgaged — when  it  takes  the  form  of 
a  debtor — then  it  is  that  he  objected  that  the  whole 
people  of  the  state  shall  be  sold  into  bondage  for 
the  sake  of  carrying  on  these  projects.  That  was 
the  difference,  the  gentleman  thinks  that  the 
thing  should  be  left  open.  He  (Mr.  H.)  thought 
after  our  fatal  experience,  it  would  be  quite  as 
well  to  close  it.  He  knew  that  localities,  seeing 
the  general  scramble  after  the  public  treasure,  in 
the  shape  of  public  debts,  have  cast  themselves 
on  the  treasury,  and  he  had  hardly  even  blamed 
them  for  this,  because  it  was  almost  impossible  for 
a  man  when  he  sees  that  he  is  to  be  charged, 
not  to  endeavor  to  get  his  share  of  the  thing 


charged.  The  impropriety  was  that  it  should 
be  concealed  from  the  people,  that  it  was 
done  by  a  debtor  system,  and  that  it  was  to  be  a 
charge  and  a  mortgage  upon  them.  And  he  be- 
lieved that  nothing  was  more  unfortunate  for  the 
roads  themselves  than  to  come  forward  and  take 
these  credits,  for  it  gave  countenance  to  the  debt- 
or system,  which  did  them  no  good  but  injury. — 
Where  a  road  in  point  of  fact  offers  a  fair  invest- 
ment, there  will  be  capitalists  ready  to  take  its 
stock.  When  the  road  from  Schenectady  to  Uti- 
ca  had  its  books  open,  was  there  any  difficulty 
found  in  getting  the  stock  taken  ?  And  so  with 
the  other  western  roads.  Whenever  a  road  pro- 
mises a  fair  profit  to  the  undertakers,  the  money 
is  readily,  raised;  it  is  only  where  the  success  of  the 
project  is  doubtful  that  the  state  credit  has  been 
invoked,  and  the  state  made  a  debtor  in  order  to 
give  credit  and  countenance  to  the  undertaking. 
He  entertained  no  hostility  to  any  of  these  works. 
Go  on  with  the  Erie  enlargement — get  the  means 
and  not  make  debts.  Do  not  stop  it  up,  or  bur- 
then it  with  tolls  !  Leave  it  useful  for  navigation, 
and  not  withered  and  blasted  lor  use.  Go  on 
too,  with  the  Black  River  canal — but  get  the 
means — he  did  not  object  to  it — it  was  all  well — 
but  do  not  wither  and  blast  the  energies  and  the 
industry  of  the  state,  by  creating  a  debt.  Go  on 
with  the  Genesee  Valley  canal — he  did  not  object 
— but  put  your  hand  on  the  earth's  all-teeming 
bosom,  and  get  means  for  these  works.  Do  not  get 
them  with  a  falsehood,  and  it  would  be  a  falsehood 
if  it  is  done  by  a  credit  system,  and  a  state  debt. 
He  had  no  morbid  sensibility  about  the  matter — 
he  should  be  enabled  to  live  out  his  few  days  in 
paying  this  interest.  If  the  gentleman  from  Rens- 
selaer and  the  Convention  should  agree  to  do  iV 
he  would  have  to  do  the  same.  He  was  in  the 
same  boat  and  would  have  to  go  along  with  them. 
But  the  gentleman's  argument  or  his  complaint  of 
his,  Mr  H's  denunciation  against  those  frauds 
and  foragers  on  the  public  treasury,  could  not  in- 
duce him  to  go  with  them  willingly.  If  he  went 
he  must  go  by  force — he  would  resist.  He  did  not 
say  that  these  applications  were  always  made  from 
corrupt  motives,  but  the  state  had  suffered  by  it, 
and  now  the  question  was,  will  you  leave  to  the 
legislature  a  power  in  relation  to  these  debts, 
which  may  reach  the  people  in  direct  taxes.  If 
you  think  best  do  so,  but  the  standing  committee 
thought  otherwise,  and  he  had  heard  nothing  here 
to  induce  them  to  alter  their  opinion.  He  did  not 
want  these  companies  to  come  here  at  all.  He 
wanted  them  to  understand,  having  long  years  be- 
fore them  to  prepare  for  payment,  that  they  need 
expect  no  extension.  He  cared  not  for  the  past, 
that  was  gone— he  desired  to  guard  the  future. 
If  they  shall  say,  let  the  people  be  taxed,  we  will 
want  until  the  'last  day  and  hour,  and  then  ask 
for  relief— he  desired  some  rule  that  should  ope- 
rate on  them  severely.  This  was  the  intention 
of  the  proposition. 

Mr.  F.  £\  BACKUS  moved  to  amend  the  sec- 
tion so  that  it  should  read  as  follows :— [The 
amendments  in  italics.] 

"  The  claims  of  the  stat*  against  any  incorporated  com 
pany  or  individuals  to  pay  the  inteicst  and  ledeem  the  prin- 
cipal st-ck  ol  the  state  loaned  or  advanced  to  such  compa- 


ny or  of  the  interest  or  principal  on  moneys  loaned  to  such 
individuals  shall  be  fairly  ana  duly  enforced,  and  not  defer- 
red, released  or  compromised,  and  the  moneys  arising  from 


857 


such  claims  shall  he  set  apart  and  applied  as  part  of  the 
sinUlntr  fund  provided  in  the  fourth  section  of  this  article, 
and  in  the  case  of  individuals,  be  crtdited  to  the  several  funds 
respectively  from  which  the  money  was  loaned. 

\f\er  some  conversation  between  Messrs.  VAN 
SCHOONHOVEN,  HOFFMAN  and  WORDEN, 
as  to  a  reply  of  Mr.  H.  to  Mr.  W. yesterday, 

The  committee  rose  and  reported  progress,  and 
the  Convention  adjourned  until  Monday  morning 
at  half  past.  8  o'clock. 

MONDAY,  (88th  day)  Sept.  14, 

Prayer  by  the  Rev.  Dr.  WELCH. 

Mr.  BAKER  called  up  his  resolution  instruct- 
ing all  those  committees  that  have  not  yet  report- 
ed to  present  their  reports  on  the  16th  inst.  He 
finally  modified  it  to  the  22d  inst. 

Mr.  TOWNSEND  proposed  the  following  sec- 
tion, to  be  offered  as  an  additional  section  to  the 
article  on  finance : — 

$  — .  The  revenues  of  the  State  shall  after  the  first  day 
ol  July,  1S47,  be  collected  in  gold  and  silver  coin,  or  in 
such  cash  evidences  of  debt  as  are  secured  by  the  faith  o 
the  State. 

Mr.  HOFFMAN  opposed  any  reference  of  this 
proposition,  as  had  been  suggested  by  the  gentle^ 
man  from  New- York,  (Mr.  TOWNSEND,)  yester 
day,  to  the  committee  on  finance,  unless  that  com 
mittee  was  to  be  allowed  to  present  a  written  re 
port  upon  the  subject.     And  indeed  under  all  the 
circumstances  of  the  case,  he  was  opposed  to  the 
proposition.     The    State    had    chosen    to  make 
banks,   and  heaven   knows  she  has  made  these 
banks  bad  enough  ;  and  now  he  had  no   idea  tha 
the  sovereign,  after  choosing  to  make  these  banks 
should  turn  round,  and  try  to  escape  from  the  dis 
agreeable  necessity  of  taking  its  own  currency. — 
This  convuunuy  should  say  to  the  State,  "  if  yo 
choose  to  make  a  rag  currency,  you  shall  take  i 
in  payment  for  your  own  dues !" 

Mr.  TOWNSEND  said  that  the  gentlema 
from  Herkimer  had  evidently  misunderstood  th 
full  import  of  the  proposition  that  he  had  made 
He  thought  that  the  question  of  the  security 
the  public  revenues  was  immediately  connecte 
with  the  propositions  respecting  the  finances  o 
the  state,  now  being  considered  in  the  com 
mittee  of  the  whole.  Whilst  the  facts  were  ap 
parent  from  the  document  before  us  that  the  re 
ception  of  certain  kind  of  paper  money  have  in 
flicted  a  loss  of  between  five  and  six  hundre 
thousand  dollars  on  the  part  of  the  state,  it  \va 
in  vain  to  say  that,  the  question  of  wh  it  medim 
the  public  revenue  shall  be  collected  in,  is  not  on 
of  the  deepest  importance.  The  adoption  of  th 
policy  adopted  in  the  section  proposed  would  ten 
greatly  to  prevent  a  recurrence  of  a  suspensio 
of  specie  payments  by  our  banks,  an  event  whic 
in  1S37,  compelled  the  state  to  lose  upward,  s? 
sixty  thousand  dollars,  to  make  up  the  deficient 
in  the  value  of  bank  paper,  in  payments  due  th 
foreign  creditors  for  interest  on  the  public  deb 
Under  this  section  the  warrants  of  the  officers 
the  state  and  the  bills  of  banks  secured  in  full  b 
NewYork  state  stocks,  and  gold  and  silver  wou 
constitute  the  only  medium  received.  He  sumrc 
ted  however,  that  the  proposition  should  be  la 
on  the  table  for  a  day  and  be  printed. 

Mr.  SHEPARD  thought  that  the  propositioi 
or  a  similar  one,  recommended  by  his  colleagu 
had  been  reported  to  a  committee,  some  tim 


nee.  There  was  great  importance  in  having  a 
vorce  between  the  banks  and  the  state,  and  col- 
cting  the  revenues  in  gold  and  silver ;  and  when 
ic  report  of  the  committee  on  currency  and  bank- 
ig  should  come  up  he  would  move  an  amend- 
,ent  to  that  effect.  Until  then  he  wished  it  to 
e  postponed. 

Mr.  TOWNSEND  consented  to  let  it  lie  on  the 
able  for  a  day ;  and  it  was  ordered  to  be  printed. 

The  convention  then  went  into  committee  of 
he  whole  on  the  report  on  the 

FINANCES,  CANALS,  &c. 

Mr.  W.  TAYLOR  resumed  the  chair. 

Mr.  CHAMBERLAIN  rose  to  notice  a  remark 
r  two  that  had  fallen  from  the  gentleman  from 
Herkimer.  On  Friday  he  (Mr.  Hoffman)  said  it 
Arould  cost  $1 ,000,000  to  finish  the  Genesee  valley 
anal.  Saturday  he  asserted  that  it  would  cost 
>3,000,000.  That  the  convention  might  know 
low  much  weight  such  assertions  were  entitled 
o,  Mr.  C.  begged  to  read  from  a  report  of  the  ca- 
lal  commissioners  in  1S44,  giving  the  items,  and 
which  were  worth  far  more  than  the  assertions  of 
limself  or  others,  Mr.  C.  then  read  from  that 
•eport,  based  upon  the  high  contract  prices  of 
L839,  and  yet  the  total  cost  on  that  basis  was  on- 
y  $1,414,869  81.  Mr.  C.  should  undertake  to 
show  before  this  debate  closed,  that  this  canal 
could  be  completed  for  less  than  $1,000,000,  and 
:hat  when  completed  it  would  be  one  of  the  best 
5aying  canals  in  the  state.  In  relation  to  the 
.arge  land  slides,  alluded  to  by  the  gentleman  from 
E-Ierkimer,  Mr.  C.  begged  to  say  that  there  were 
no  such  land  slides,  either  great  or  small. 

Mr.  ANGEL  said  he  felt  the  weight  of  the  re- 
sponsibility resting  upon  him  most  sensibly.  The 
duty  I  owe  my  constitnents,  (said  he)  impels  me 
to  exert  the  feeble  faculties  I  possess,  to  avert  the 
frightful  danger  that  threatens  them.  With  them, 
sir,  this  is  a  question  of  life  and  death  ;  it  is  a 
question  upon  the  issue  of  which  their  dearest 
hopes  are  suspended;  if  the  proposition  offered  by 
the  gentleman  from  Herkimer  is  engrafted  into 
the  Constitution,  their  hopes  will  wither  and  die. 
None  but  those  who  suffer  the  miseries  we  endure, 
can  realize  them  or  fully  sympathise  with  us. — 
We  have  often  implored  relief  from  the  legisla- 
ture — we  have  represented  our  grievances  and  our 
afflictions  to  that  body— but  owing  to  the  unfa- 
vorable state  of  the  finances,  we  have  found  no  re- 
lief. We  have  cherished  the  hope  that  with  the 
return  of  prosperity,  the  wisdom  and  justice  of  the 
legislature  Would  promptly  and  frankly  grant  the 
relief  we  desire  The  proposition  before  us,  and 
which  we  are  now  considering,  is  designed  to  tie 
up  the  hands  of  the  legislature,  and  deprive  it  of 
the  power  to  grant  relief.  It  seems  to  me  that 
there  is  no  existing  necessity  for  the  rigid  rule  and 
iron  rigor  that  is  proposed  to  be  adopted.  The 
entire  debt  of  the  state  according  to  the  documents 
furnished  us  by  I  he  Comptroller,  is  $22,254,083  78. 
It  is  represented  by  the  gentleman  from  Herkimer 
(Mr.  HOFFMAN)  "to  be  $23,401,668  It  appears 
by  the  Comptroller's  report,  that  on  the  first  day 
of  June  las',  there  were  funds  in  his  hands  appli- 
cable to  the  payment  of  the  debt  to  the  amount  of 
$1,291,514  17.  I  arrived  at  the  amount  of  the 
public  debt  by  deducting  the  contingent  debt,  as 
is  called,  from  the  gross  sum  of  all  the  debts  and 
liabilities  of  the  state,  as  stated  in  table  A.  in  the 
82 


858 


Comptroller's  report  to  this  Convention  of  the 
7th  of  July  last.  The  gentleman  from  Herkimer 
took  the  amount  from  another  table  in  the  same 
document,  but  I  understand  him,  that  he  made  no 
allowance  for  the  sum  of  $1,291,514,  which  the 
Comptroller  reported  as  funds  on  hand,  applica- 
ble to  the  payment  of  the  debt. 

The  contingent  debt  of  the  state  is  $1,713,000. 
This  debt  arose  from  the  loan  of  the  credit  of  the 
state  for  the  benefit  of  the  Delaware  and  Hudson 
canal,  and  for  certain  rail-road  companies,  all  of 
which  continue  to  pay  the  interest  on  the  loans, 
and  I  am  informed  that  the  companies  are  all 
sound  and  solvent  with  one  or  two  exceptions. — 
The  gentleman  from  Herkimer  asserts  that  the 
state  will  lose  $300,000  by  the  anticipated  failure 
of  some  of  those  companies,  which  assertion  is 
disputed  by  other  gentlemen.  For  myself  I  can 
say  nothing1  of  their  solvency  or  insolvency,  hav- 
ing no  knowledge  on  the  subject.  The  difference 
between  myself  and  the  gentleman  in  regard  to 
the  amount  of  the  debt  is  not  very  essential.  Call 
it  $227500,000  or  23,000,000  or  23,400,000,  and 
the  difference  is  so  small  that  we  need  have  no 
bickering  about  it.  The  interest  on  the  debt,  as 
I  have  calculated  it,  is  $1,223,974  60  annually. 
This  interest  we  must  pay  as  it  falls  due.  It  is 
true  and  beyond  all  doubt  that  this  is  a  serious 
concern.  It  is  not  to  be  wondered  at,  that  the 
people  should  hesitate  to  incur  further  indebted- 
ness with  such  an  amount  of  debt  already  con- 
tracted staring  them  in  the  face  ;  but,  sir,  when 
you  compare  the  debt  with  the  resources  and 
ability  of  the  State  to  pay  it,  it  dwindles  down  and 
is  stripped  of  its  alarming  features.  Sir,  I  am  not 
the  friend  of  a  public  debt  or  of  a  rotten  funding 
system,  as  the  gentleman  from  Herkimer  is  pleas- 
ed to  style  our  present  financial  condition.  I  was 
never  the  friend  of  unnecessary  taxation.  I  al- 
ways abhored  it,  knowing  that  taxes,  direct  or 
indirect,  with  their  leaden  weight,  always  find 
their  way  to,  and  settle  down  upon  the  hand  of 
labor.  When  we  take  into  consideration  our  con- 
dition as  it  really  and  naturally  is,  I  would  en- 
quire what  necessity  exists  for  conjuring  up  im- 
a°'inary  bankruptcy,  and  holding  oyt  frightful  bug- 
bears and  hydras,  in  regard  to  the  State  debt  ? — 
Sir,  it  can  be  paid  with  ease  and  without  a  resort 
to  taxation,  i  am  aware  that  it  is  a  bad  thing  to 
to  be  in  debt,  and  the  fact  that  the  State  owes 
over  $22,000,000,  does  not,  in  my  humble  opin- 
ion, justify  any  man  in  enlarging  and  magnifying 
it,  and  frightening  people  out  of  their  wits  about 
it.  My  friend  from  Herkimer  has  been  many 
long  years  brooding  over  the  dark  side  of  this 
picture  ;  he  has  been  employed  in  calculating  and 
compounding  interest,  and  footing  up  millions  ; 
he  has  wandered  so  long  among  the  mysteries  of 
the  Comptroller's  reports,  he  has  lost  his  balance, 
frightened  himself,  and  now  comes  here  to  frighten 
others.  Every  thing  appears  dark  and  sombre  to 
him. 

Sir,  a  few  days  ago,  when  we  were  considering 
the  question  whether  we  would  first  take  up  the 
judiciary  or  finance  report,the  gentleman  came  out 
with  a  solemn  speech, fitted  to  a  funeral;  he  told 
us  that  this  subject  of  finance  would  not  be  ex- 
citing ;  that  it  would  elicit  feelings  of  a  far  difier- 
entcast;  that  we  should  come  to  this  discussion 
with  heartfelt  grief;  that  we  should  sit  down  to 


it  in  sorrow,  and  that  the  direful  condition  of  the 
state  would,  fill  our  hearts  with  a  solemn  gloom. 
Sir,  so  sad  were  the  views  he  presented  and  so 
loleful  was  his  tone,  that  I  almost  expected  to 
hear  him  move  a  resolution  that  the  Convention 
set  apart  a  day  for  humiliation,  fasting  and  prayer. 
His  strong  aversion  to  being  in  debt,  and  his  dis- 
like of  those  who  run  into  debt  and  do  not  pay, 
has  given  him  the  spleen  against  all  indebtedness, 
and  led  his  judgment  astray.  Sir,  I  desire  to  in- 
vite the  attention  of  the  house  to  that  side  of  the 
picture  which  the  gentleman  from  Herkimer  has 
kept  out  of  view.  Who  are  we  ?  We  are  now 
nearly  or  quite  three  millions  of  people ;  we  in- 
habit a  state  unparalleled  in  resources ;  we  have 
a  healthy  climate,  a  productive  soil,  and  our  lo- 
cation and  facilities  for  trade,  commerce  and  man- 
ufactures is  not  surpassed  by  any  region  on  the 
globe  ;  who,  if  he  owned  the  state  of  NewYork, 
would  exchange  it  for  the  best  other  territory 
double  in  extent  that  could  be  selected  on  this 
continent  ?  Sir,  there  are  no  two  other  states  in 
this  Union,  possessing  the  intrinsic  value  that  be- 
longs to  this  state.  A  document  laid  upon  our  ta- 
bles, from  the  Comptroller's  office,  informs  us  of 
the  value  of  the  public  property  of  the  State.  It 
consists  of  your  canals,  your  state  house,  your  state 
halls,  your  public  grounds,  your  lunatic  asylums, 
your  state  prisons,  your  arsenals,  your  ordnance., 
your  arms  and  munitions  of  war,  and  your  salt  * 
springs  of  the  aggregate  value  of  $54,340,481. — 
In  addition  to  all  this,  sir,  public  buildings  and 
edifices  abound  throughout  the  state.  Your  court 
houses,  your  jails,  your  churches,  your  colleges, 
your  Academies  and  common  school  houses  are 
worth  millions  more.  You  have  a  common  school 
fund  and  literature  fund,  which,  together,  exceed 
two  and  a  half  millions  of  dollars ;  and  canals  that 
yield  an  annual  revenue  of  $2,700,000.  This  pro- 
perty, except  the  canal  revenues,  I  know  cannot 
be  disposed  of  to  pay  the  debt,  but  I  mention  it  to 
show  that  it  is  in  existence,  and  that  we  are  not 
liable  to  be  taxed  for  such  things.  It  shows  a 
flourishing  and  most  flattering  state  of  prosperity. 
The  private  property  of  the  individual  citizens 
and  corporations  in  the  state  is  assessed  at  $605,- 
640,095.  This  vast  sum  falls  far  short  of  the  re- 
al value  of  private  property  in  the  state.  Our 
condition  may  be  likened  to  that  of  a  man  having 
a  s:ood  improved  farm,  well  stocked  with  good 
buildings,  well  furnished,  worth  $10,000,  himself 
in  tie  vigor  of  manhood,  enjoying  perfect  health, 
and  in  debt  about  $200.  This  being  our  condi- 
tion, what  cause  have  we  for  alarm  ?  Instead  of 
mourning,  we  ought  to  rejoice;  instead  of  fasting 
we  ought  to  give  thanks,  Thus  situated,  ought  we 
to  refuse  to  complete  our  unfinished  works  ?  The 
question  is,  whether  we  are  so  poor,  so  pauper- 
ized and  ground  down  with  poverty,  that  we  can 
not  safely  set  apart  $4,000,000  or'  $5,000,000  of 
the  canal  revenues  to  complete  those  works,  and 
give  relief  to  the  complaining  and  suffering  thou- 
sands whose  condition  so  loudly  demands  it?  My 
friend  from  Herkimer  has  sounded  his  note  of 
alarm,  and  says  there  is  no  certainty  that  the  tolls 
will  hold  out  to  pay  the  public  debt ;  that  com- 
merce may  be  diverted  from  the  canals,  and  we 
may  be  obliged  to  resort  to  direct  taxation  to  pay 
the  debt?  tax  and  terror  is  the  burden  of  his  ar- 
gument. His  argument  was  not  addressed  to  the 


859 


whole  man;  it  went  only  in  search  of  cold-heart- 
:  ozen  avarice.  The  better  and  more  liberal 
feelings  of  the.  human  heart  were  not  addressed 
by  it;  they  were  frightened  into  the  non-per- 
formance of  their  functions,  by  the  terrors  which 
accompanied  his  appeal  to  avarice. 

I  will  no;  accuse  my  friend  ol  intentionally  put- 
ting forth  an  argument  designed  to  deceive.  I 
know  him  too  well  to  believe  that  his  honest 
heart  would  have  any  share  in  such  an  undertak- 
ing. I  know  thai  avarice  will  lie,  will  cheat,  will 
steal,  will  plunder,  rob  and  murder,  and  1  will 
not  be  so  unkind  or  so  unjust  as  to  charge  him 
with  intentionally  invoking  that  infernal  "passion 
alone  to  his  aid.  I  have  long,  intimately  and  fa- 
vorably, known  my  friend  from  Herkimei;  I  know 
his  worth,  and  I  love  him  ;  but  when  he  yields  to 
a  strange  delusion  and  goes  counter  to  what  ap- 
prars  to  me  to  be  right,  I  cannot  go  with  him. — 
When  he  tells  us  that  the  lolls  upon  the  canals, 
after  a  few  years,  will  diminish,  and  that  there  is 
such  fearful  danger  of  their  falling  below  the  sum 
necessary  to  pay  the  public  debt,  can  I  believe 
him  ?  When  he  tells  us  that  there  is  danger  that 
insolvent  Pennsylvania  will  construct  canals  and 
steal  away  our  ttade  on  the  south,  and  that  the 
Welland  canal,  the  St.  Lawrence  and  the  Ogdens- 
faurgb  railroad  will  steal  it  away  on  the  north,  can 
I  believe  that  ?  When  I  am  told  that  the  western 
states  will  find  other  avenues  to  market,  which 
they  will  piefer  to  our  canals,  shall  I  believe 
that?  The  commerce  of  the  upper  lakes  runs 
as  naturally  into  the  Erie  canal,  as  the  Mo- 
hawk river  runs  into  the  Hudson ;  and  it  would 
be  as  difficult  to  divert  the  commerce  of  the  ca. 
nal,  as  it  would  be  to  turn  the  Mohawk  into  some 
other  channel.  Sir,  in  proportion  as  the  fertile 
lands  of  the  west  are  brought  under  cultivation, 
in  that  same  proportion  will  the  commerce  of  our 
canals  increase.  Tf  e  progress  cf  settlement  in 
the  western  states  is  astonishingly  rapid ;  emigrants 
are  pouring  into  them  by  thousands  daily.  By  a 
letter  written  from  Germany,  and  published  in  the 
Washington  Union,  it  appears  that  over  200,000 
persons  will  emigrate  from  Europe  to  the  United 
Slates  this  year;  that  many  of  them  are  wealthy, 
and  will  bring  large  fortunes  with  them.  These 
emigrants  will  pilch  their  homes  in  the  west.  An- 
other account,  taken  from  a  Milwaukie  paper, 
states  that  over  1,500  passengers  arrive  in  the 
steamboats  from  the  east  at  that  place  daily  ;  that 
most  of  them  are  entrants,  seeking  homes  in 
Wisconsin.  With  these  evidences  before  me,  how 
can  I  join  with  the  gentleman  from  Herkimer  in 
his  belief? 

This  report,  sir,  takes  from  the  canal  revenues 
yearly  $2,672,500.  It  fixes  a  fund  of  $1,500,000 
to  siuk  the  canal  debt;  a  fund  of  $500,000  to  sink 
the  general  fund  debt,  and  applies  $172,070  to 
the  support  of  goverment.  The  sum  to  be  taken 
from  the  tolls  varies  but  little  from  the  nett  mon- 
ey from  tolls  for  this  year  ;  so  that  under  the  pro- 
visions of  this  report,  it  is  certain  that  there  is 
nothing  to  enable  the  work  to  be  started  next 
year.  If  the  tolls  should  increase  $100,000  or 
even  $200,000  next  year ,what  would  that  increase 
perform  of  the  work  necessarv  to  complete  the 
canals?  Sir,  it  seems  to  me  idle  to  talk  of  per- 
forming this  great  work  with  the  mere  increase 
of  toll:*.  I  will  reler  my  friend  from  Herkimer  to 


a  case  in  point,  which  he  will  undoubtedly  ac- 
knowledge as  good  authority,  for  I  have  often 
heard  him  approve  of  ir.  He  will  recollect  that 
in  the  spring  of  1845,  the  legislature  passed  an  act 
appropriating  $197,000  to  the  public  works,  which 
was  sent  to  the  Governor  for  his  approval,  and  it 
came  back  vetoed,  with  the  Governor's  reasons  for 
the  veto.  If  my  recollection  serves  me  rightly, 
one  ot  the  reasons  assigned  by  the  Governor  was 
that  the  sura  was  too  small  to  be  of  any  practical 
benefit  to  the  work.  I  do  not  pretend  to  quote 
the  Governor's  language  literallv,  but  the  substance 
of  it  was  that  the  whole  would  be  swallowed  up 
in  engineering,  and  there  would  be  nothing  left  to 
pay  for  the  other  labor.  This  proposition  ol  the 
gentleman  in  effect  suspends  the  execution  of  the 
public  works  until  after  the  payment  ol  the  pub- 
lic debt,  or  nearly  so  ;  and  this  too  upon  princi- 
ples which  he  has  hitherto  acknowledged  to  be 
correct.  There  seems  to  me  to  be  a  manliest  in. 
consistency  and  unfairness  upon  the  face  of  the 
proposition.  Whilst  it  excites  expectations  and 
hopes  that  the  works  will  be  resumed  at  no  dis- 
tant day,  it  reaches  so  lar  into  the  tieasury  as  to 
defeat  those  hopes  and  expectations.  It  would  be 
far  more  in  accordance  with  fair  plain  dealing,  to 
unveil  the  design,  and  come  out  openly,  and  de- 
clare in  express  terms,  that  the  further  prosecu- 
tion of  the  public  works  shall  be  suspended  uniil 
the  state  debt  is  paid  and  extinguished.  I  had 
rather  vote  for  such  a  proposition  than  the  one 
under  consideration.  The  people  would  then 
know  what  to  depend  on,  and  they  would  be  re- 
lieved from  the  tantalizing  hopes  and  disappoint- 
ments with  which  they  have  so  long  been  har- 
rassed. 

Sir,  before  the  public  works  could  be  completed 
upon  the  plan  the  gentleman  from  Herkimer  pro- 
poses, one  half  the  me  i  now  alive  would  be  dead. 
The  injustice  of  the  proposition  is  too  palpable  to 
be  denied  ;  the  privations  and  hardships  of  the 
people  in  the  south-western  counties  are  to  be 
continued  for  long  years,  and  perhaps  made  per- 
petual, under  a  pretended  fear  that  at  some  future 
day  a  half  mill  or  a  mill  tax  may  fall  upon  the 
property  of  the  people  of  the  state.  It  is  obvious 
to  every  intelligent  mind  that  will  take  t^.e  trouble 
to  look  into  the  matter,  that  the  unfinished  works 
may  be  completed  out  of  the  canal  revenues,  with- 
out the  slightest  danger  of  a  compulsory  resort  lo 
taxation.  I  put  the  question  to  this  committee, 
will  you  sit  and  look  coldlv  on  and  see  the  people 
of  Ailegany  and  Cattaraugus  pine  in  suffering  and 
poverty,  when  they  can  be  relieved  without  a  call 
Iipon  your  pockets?  Will  you,  for  fear  that,  by 
some  possibility  you  may  be  called  upon  at  some 
unknown  period  to  disgorge  a  sixpence  or  a  shil- 
ling out  of  your  abundance,  tarnish  the  honor  and 
violate  the  faith  of  this  great  state,  with  her  ten 
hundred  millions  of  wealth,  by  backing  out  of  a 
work  of  the  greatest  public  utility,  which  she 
stands  pledged  to  execute,  and  which  she  has  more 
than  halt  completed?  Will  you  bring  such  a  stain 
upon  her  character,  and  leave  a  halt  finished,  di- 
lapidated canal  to  remain  as  a  monument  of  her 
folly  and  parsimony,  to  bescolr'ed  at  by  future  gen- 
erations, and  will  you  do  all  of  this  through  an  un- 
founded fear  of  a  little  contemptible  contingent 
lax?  Sir,  the  sum  of  $672,500  proposed  by  this 
report  to  be  perpetually  paid  by  the  canals  into 


860 


the  general  fund,  is  the  interest  of  $13,451,167  74, 
which  the  Comptroller  claims  to  be  due  irom  the 
canal  fund  to  the  general  fund.  This  interest,  if 
this  report  is  adopted,  will  be  payable  for  all  time 
to  come,  by  the  canals  to  the  general  fund.  I  am 
willing  that  the  canals  should  fully  reimburse  the 
general  fund  for  every  dollar,  with  interest,  which 
the  general  fund  has  ever  advanced  for  the  benefit 
of  the  canals  ;  but  I  deny  that  the  canal  fund  owes 
anything  like  $13,451,167  to  the  general  fund.— 
The  claim  to  the  extent  insisted  on  is  unjust  and 
unfounded. 

Sir,  my  frief.d  from  Herkimer  admits  what  is 
just  and  right  in  principle,  that  is,  that  the  canals 
should  only  be  taxed  with  their  cost  of  construc- 
tion, superintendence  and  repairs,  and  that  they 
should  in  no  wise  be  taxed  for  the  support  of  gov- 
ernment. This  principle  being  admitted,  we  have 
only  to  look  at  the  accounts  between  the  two  funds, 
strike  the  balance,  calculate  the  interest,  and  thus 
liquidate  the  sum  which  the  canals  fairly  and  hon- 
estly owe  to  the  general  fund.  These  accounts, 
as  stated  to  us  by  the  Comptroller,  stand  as  fol- 
lows: 

The  Canal  Fund  Dr.  to  the  General  Fund. 

To  salt  dunes $2,056,458  06 

To  auction  duties, 8,59-2,039  05 

To  steamboat  tax, 73,50999 

Tolandsales, 103755  18 

To  deficits  ot  lateral  canals, 1,386,498  88 

To  direct  tax  of  1842, 280,553  74 


Making  a  total  of 

Canal  Fund  Gr.  by  cash,"- 


7,491,824  74 
2,137,602  73 


Balance, 5,354,222  01 

Upon  this  balance  the  Comptroller  compounds 
the  interest  and  swells  the  debt  due  from  the  ca- 
nals to  the  general  fund  to  the  sum  of  $13,451,167. 
The  interest  of  this  latter  sum,  at  5  pel  cent.,  is  a 
little  over  the  sum  of  $672,500,  which  this  report 
requires  shall  be  forever  paid  by  the  canals  to  the 
general  fund.  From  these  statements  it  will  be 
perceived  upon  what  this  perpetual  annuity  of 
$672,500,  to  be  paid  by  the  canals  to  the  general 
fund,  is  based.  The  claim  set  up  for  the  general 
fund  against  the  canal  fund  is  more  than  twice  as 
large  as  it  should  be.  The  salt  duties  tiom  1803 
to  1845  inclusive,  should  be  charged  to  the  gene- 
ral fund,  as  properly  belonging  to  the  canal  fund. 
The  steamboat  tax  belonged  to  the  canal  fund  ;  and 
the  general  fund,  in  the  charge  for  land  sales 
against  the  canals,  has  included  about  $40,000, 
which  were  the  avails  of  the  sale  of  lands  which 
were  given  to  the  canal  fund  to  encourage  the  con- 
struction of  the  canals. 

I  insist  that  these  three  items,  that  is,  the  salt 
dudes,  the  steamboat  tax  and  $40,000  of  the  land 
sales,  properly  and  rightfully  belong  to  the  canal 
fund,  and  that  the  general  fund  has  no  claim  what- 
ever upon  the  canals  tor  them.  Ttus  is  the  his 
tory  ot  the  salt  duties: — In  1803  the  legislature 
passed  an  act  levying  a  duty  ot  3  cents  per  bushel 
on  all  salt  manufactured  at  the  Onondaga  springs. 
This  duty  was  laid  with  a  view  to  a  revenue  barely 
sufficient  to  indemnity  the  state  against  the  expen- 
ses it  should  incur  in  the  inspection  of  the  salt 
a  id  regulation  of  the  works.  The  duty  was  con- 
tinued down  to  1817,  during  which  time  small  in- 
cidental surplusses  accrued,  which  were  paid  into 
the  state  treasury.  These  surplusses,  in  thp  ag- 
gregate, amounted  to  something  over  $40,000. — 


Down  to  1817,  H  never  entered  into  the  imagination 
of  any  person  that  the  salt  was  taxed  for  the 
purpose  of  raising  a  revenue  for  the  state.  A  tax 
for  that  purpose  would  not  have  been  tolerated  for 
an  instant.  The  palpable  and  glaring  injustice  of 
such  a  partial  tax  would  have  produced  a  bloody 
revolution.  A  tax  upon  an  indispensable  neces- 
sary of  life,  and  that  falling  upon  less  than  one- 
half  of  the  state,  and  upon  the  less  wealthy  part  of 
it,  could  not  have  been  sustained,  The  people  in 
the  eastern  part  of  the  state  were  wholly  exempt 
from  it,  and  it  was  entirely  paid  by  the  "people  of 
the  western  part.  None  of  the  salt  scarcely  came 
east  of  the  central  part  of  the  state  before  the  con- 
struction  of  the  Erie  canal ,  and  but  little  has  passed 
to  the  eastern  part  of  the  state  since  the  canal  wa» 
constructed. 

As  an  evidence  that  but  a  very  trifling  amount 
of  Onondaga  salt  ever  found  its  way  to  tide  water, 
1  will  refer  gentlemen  to  a  document  on  our  tables 
from  the  Comptroller's  office,  by  which  it  appears 
that  within  the  last  three  years,  a  large  sum  has 
been  paid  out  of  the  treasury  in  theshapejif  boun- 
ties to  encourage  the  transportation  of  salt  on  the 
canal  from  Onondaga  to  tide  water.  The  tax  on 
the  salt  has  been  almost  exclusively  paid  by  the 
western  people.  In  1817  it  became  necessary  to 
provide  funds  for  the  construction  of  the  Erie  ca- 
nal. The  canal  then  as  now  had  its  deadly  ene- 
mies, and  its  friends  were  obliged  to  make  the  best 
shifts  they  could  to  get  on  with  it.  Among  other 
expedients  resorted  to,  the  salt  duty  was  increased 
by  law  to  twelve  and  a  half  cents  on  the  bushel; 
this  increased  duty  was  imposed  expressly  for  the 
benefit  of  the  canal,  and  unequal  and  burthensome 
as  it  was  upon  the  western  people,  they  consented 
to  it  for  the  sake  of  opening  a  way  to  the  market 
for  their  produce.  Had  they  been  told  and  made 
to  believe  that  this  onerous  and  unequal  tax  was 
intended  for  the  benefit  of  the  general  fund,  was 
to  be  claimed  by  it  and  was  to  be  a  perpetual  tax 
upon  them  and  their  children,  for  the  support  of 
government  forever,  they  would  have  laid  down 
their  lives  before  they  would  have  submitted  to  it- 
No,  sir,  the  general  fund  has  no  more  right  in 
pqui'y  to  the  avails  of  the  salt  tax  than  the  state 
has  to  levy  a  tax  sufficient  to  defray  one  half  of  the 
expenses  of  government  upon  your  single  county. 
The  avails  of  that  tax,  as  I  have  said,  is  the 
rightful  property  of  the  canal  fund.  The  steam- 
boat tax,  I  am  informed,  was  likewise  levied  for 
the  exclusive  benefit  of  the  canal.  1  have  been 
told  by  a  gentleman  lately  a  member  of  the  legis- 
lature, that  the  owners  of  the  steamboats  them- 
selves petitioned  for  the  imposition  of  this  tax,  and 
that  he  had  within  a  very  few  years,  seen  the  pe- 
titions on  the  files  of  the  assembly ;  that  the  grounds 
on  which  they  desired  the  tax  was  to  benefit  and 
hasten  the  completion  of  the  canal,  which,  when 
done,  would  augment  the  travel  upon  the  river  to 
an  exfent  that  would  more  than  indemnify  the 
boat  owners  arid  the  public  for  whatever  taxes 
they  might  pay  under  the  law  imposing  them.  I 
have  looked  for  that  petition,  but  have  been  una- 
able  to  find  it.  Now,  sir,  by  what  authority  the 
claim  of  the  general  fund  to  these  taxes  has  been 
instituted,  I  do  not  know;  there  has  been  no  leg- 
islative action  on  the  subject,  and  I  am  at  a  loss 
where  the  power,  out  of  the  legislature,  exists  to 
transfer  these  taxes  from  the  fund  to  which  they 


861 


rightfully  belont;ed,  to  a  fund  having  no  founda- 
tion of  a  claim  to  them  ?  It  has  been  clone,  sir,  by 
the  one  man  power  in  the  Comptroller's  otiioe.  1 
will  not  use  the  harsh  and  grating  epithets  that 
my  friend  from  Herkirner  has  used  in  respect  to 
other  transactions;  I  will  not  call  this  unauthori- 
zed transfer,  robbery,  theft,  pilfering,  plundering 
or  foraging  the  treasury,  but  I  will  give  it  its 
rightful  name;  it  is  downright  injustice  and  rank 
usurpation.  Does  the  gentleman  suppose  that  the 
people  of  the  western  part  of  the  state  are  so  stu- 
pid, so  void  of  understanding,  and  of  respect  for 
their  right.-,  that  they  will  sanction  a  principle 
like  that  contained  in  this  attempt  to  enslave  them 
to  the  eastern  part  of  the  state?  Does  he  think 
that  this  hocus  pocus  way  of  getting  up  a  debt 
and  saddling  it  upon  them  for  all  time  to  come, 
will  go  down  with  them  without  a  manly  struggle 
to  resist  it  ? 

The  entire  amount  of  salt  duties  received  by  the 
general  fund  and  charged  by  it  to  the  canal  fund, 
is  $3,18-2,205  39.  The  steamboat  tax  is  $73,509 
99,  which,  added  to  the  $40,000  improperly 
charged  for  land  sales,  makes  up  a  total  of  $3,295, 
713  38  This  sum,  deducted  from  the  balance  of 
principal  claimed  by  the  general  fund,  $'5,354,222 
Ul,  leaves  a  balance  still  in  favor  of  the  general 
lund  of  $2,059,506  38.  This  sum,  with  the  inter- 
est upon  the  several  advances  from  time  to  time, 
as  they  were  made,  would,  in  rriy  opinion,  consti- 
tute the  true  sum  due  from  the  canal  fund  to  the 
general  fund.  The  heavy  advances  have  been  but 
recently  made.  I  have  no  data  by  which  I  can 
calculate  the  interest,  but  from  the  best  judgment 
that  I  have  been  able  to  form,  the  most  riaid com- 
pound lule  of  interest  would  not  increase  the 
debt  to  much  v  ver  four  millions  of  dollars ;  it  might 
raise  it  some  higher,  but  could  not  possibly  raise 
it  to  six.  1  aver,  sir,  that  the  principle  I  have  laid 
down  in  respect  to  the  salt  tax,  the  steamboat  tax, 
and  the  $40,000  of  land  sales,  is  correct,  and  would 
be  sustained  in  a  court  of  equity.  I  wotild  wil. 
lingly  go  to  the  trial  of  the  question  before  the 
chancellor  ;  or,  if  possible,  I  would  willingly  sub. 
mit  it  to  the  chancery  of  heaven,  nothing  doubting 
but  my  position  would  be  sustained.  The  gentle, 
man  has  said  that  Gov.  Clinton,  in  1817,  pledged 
his  word  that,  the  salt  and  auction  duties  should  lie 
restored  to  the  general  fund,  and  that  the  cana 
board,  in  J843,  had  given  a  direction  to  that  effect. 
The  auction  duties  properly  belong  to  the  genera 
fund,  and  it  is  right  and  proper  that  they  should 
be  restored:  but  Governor  Clinton  or  the  cana 
board  had  no  right  to  make  this  unceremonious 
disposition  of  the  constitutional  rights  of  nearly 
halt  of  the  people  of  this  stale,  in  respect  to  salt 
duties. 

A  different  power  from  that  which  either  of 
them  possessed  was  necessary  to  give  validity  to 
such  a  promise  or  direction.  The  consent  of  the 
people  themselves  was  necessary,  which  consent 
they  have  not  given,  never  would  give,  or  wil 
give.  My  friend  from  Herkirner  has  had  much  to 
say  about  good  faith.  [  desire  to  see  good  faith 
every  where  observed.  In  good  faith  we  ou°;ht  to 
retard  the  fights  of  ever)  part  of  the  stale  as  equal, 
and  we  should  act  accordingly.  We  should  pro 
ceed  to  our  work  in  honesty  and  sincerity.  I  de- 
sire to  know  how  the  general  fund  has  accom- 
plished so  much  as  is  claimed  for  it  ?  I  have  heard 


nuch  about  the  general  fund  being  swallowed  up 
nd  absoibed  by  the  canals.  I  believed  there  was 

something  in  the  assertion  until  I  came  here  and 
ooked  into  it.  It  was  Ihe  argument  we  used  to 

make  against  the  canal  in  old  limes.  I  was  a  buck- 
ail  and  a  young  man.  1  heard  my  seniors  talk  it 

over,  and  took  it  for  true,  as  most  young  men  take 
hings.  Since  I  came  here,  I  have  taken  pains  to 

go  to  the  records,  and  search  tins  fund  out.  I  oe- 
an  with  the  year  1817,  at  the  time  the  public 

works  were  commenced.     I  find  a  statement  of  the 

whole  fund   in   the    Comptroller's   report  of  that 

year.     It  consisted  of  the  following  items : 

Debt  due  from  Bank  of  the  State,- 

Three  per  cent  U.  S.  stock, 

608  shares  Bank  of  America,  • 


100 
100 
600 
300 
1000 
2000 
2000 
1000 
2000 
1000 


:ne  amount  01  ine 
',905,335,  which 
ic  general  i'wul, 
lount  of  the  fund 


New-York, 

Albany, 

Farmers, 

N.  V.stiitu, 

Manhattan, 

Mechanics'  &  Farmers'. 

Middle  District, 

Newburgh, 

Troy. 

Lansingburgh, 

Balance  on  loan  of  1786, 

do  1792, 

do  1808, 

Loan  to  Niagara  sufferers  and  others, • 

Bonds  and  mortgages  for  land  sold, 

250  shares  Inland  Lock  Navigation  Co 

500  do  Seneca  do  do 

Bond  of  Mayor,  Aldermen,  &c.  of  N.  York,- 

Total, $4,470,169  80 

In  addition  to  which,  the  .state  owned  about 
780,000  acres  of  land,  the  value  of  which  is  not 
stated.  The  same  report  gives  the  amount  of  the 
state  debt  at  that  period  at  " 
deducted  from  the  amount  of  the 
leaves  $1,575,504  80,  as  the  amount  of 
over  the  debt  of  the  state.  This  million  and  a 
half  and  the  780,<JOO  acres  of  land  constituted  the 
entire  fund  in  1817  ;  considerable  of  the  fund 
was  unavailable  ;  the  stock  in  the  lock  naviga- 
tion companies  was  good  for  nothing.  The  Mid- 
dle District  bank  failed,  and  that  stock  was  lost, 
arid  large  donations  were  made  from  time  to  time 
to  the  school  fund  of  lands,  loans,  &c.,  which 
were  taken  from  the  general  fund.  The  Comp- 
troller reports  to  us  that  since  1817,  there  has 
been  paid  out  of  the  treasury  and  for  special  ap- 
propriations, the  sum  of  $15,931,700  41.  No 
part  of  this  vast  sum  was  paid  for  the  benefit  of 
the  canals,  and  still  this  magical  little  fund  of 
less  than  a  million  and  a  half,  in  1817,  has  con- 
trived to  pay  out  for  the  support  of  the  govern- 
ment, &c.,  the  enormous  sum  of  $15,931,706  41, 
and  bring  the  canals  in  debt  to  the  amount  of 
#13,451,167  74  ;  making  a  total  of  $29,382,874,- 
15.  The  facts  and  figures  show  this  state  of 
things  in  regard  to  the  general  fund.  I  have  en- 
deavored to  ascertain  from  what  sources  the  gen- 
eral fund  has  been  replenished  since  1817,  to  en- 
able it  to  disgorge  so  freely.  A  resolution  some 
time  ago  was  sent  to  the  Comptroller,  from  this 
Convention,  requiring  him  to  report  to  us  where 
the  general  fund  got  all  this  money  to  pay  out. — 
I  am  informed  that  his  reply  to  the  resolution 
was  sent  in  a  day  or  twro  ago,  and  that  it  is  in  the 
hands  of  the  printer.  I  have  not  seen  it,  and 
very  much  regret  that  I  arn  deprived  of  the  bene- 
fit of  it  on  this  occasion. 


862 


In  searching  for  the  accounts  of  moneys  paid 
into  the  treasury  since  1817,  I  find  that  the  sum 
of  about  $1,399,390  83  was  collected  from  the 
half-mill  tax  which  expired  in  1S2G  ;  that  $1,- 
706,238  05  was  collected  under  the  tax  law  of 
1M2  ;  that  $115,503  47  was  collected  under  the 
law  of  1844,  imposing  the  one-tenth  of  a  mill 
tax  ;  that  .$'2,508,346  24  was  received  into  the 
treasury  from  salt  and  auction  duties  since  1836. 
There  are  some  other  receipts  which  I  have  not 
been  able  to  ascertain,  but  their  amount  cannot 
be  large,  say  they  might  amount  to  $2,000,000, 
and  this  I  think  is  a  very  liberal  allowance,  and 
these  receipts  all  put  together  amount  to  $8,731,- 
479  64  ;  and  out  of  this  sura  the  general  fund 
has  paid  in  cold  cash  for  the  support  of  govern- 
ment, &c., the  sum  of  $15,931,706  41,  and  has 
got  the  canal  in  debt  to  it  $13,451,167  74.  Now 
sir,  this  seerns  strange  to  me ;  I  cannot  under- 
stand it ;  I  impute  no  blame  to  any  one  about  this 
matter,  but.  I  really  want  to  know  the  manner  of 
doing  the  thing.  When  a  thing  presents  itself  to 
me  and  stands  up  before  me  in  the  light  this 
matter  does,  am  I  not  justified  in  making  the  in- 
quiry, how  it  can  be  so  ? 

Sir,  if  the  committee  will  indulge  me  for  a  few- 
moments,  I  will  say  a  few  words  in  regard  to  the 
Genesee  Valley  canal.  This  work  has  been  made 
odious  by  false  and  vindictive  representations.  Its 
enemies  have  lacked  principle  as  well  as  informa- 
tion on  the  subject  of  it.  They  have  acted  as  people 
sometimes  act  who  have  a  great  spleen  against  a 
particular  dog ;  they  go  into  the  street  and  cry  'mad 
dog.'  Every  thing  that  ignorance  combined  with 
impudence  and  vindictive  feeling  could  invent, 
has  been  said  and  done  to  disparage  that  work  in 

*  -gislature.  Its  friends  have  been  charged  with 
fraud  and  corruption  in  getting  tne  law  passed  for 
its  construction  and  in  getting  appropriations  to 
construct  it ;  the  country  where.it  is  located  has 
been  ridiculed  and  efforts  have  been  made  to  dis- 
grace it  and  its  inhabitants.  One  miserable  driv- 
eller has  gone  into  calculations  and  pretended  to 
show  that  it  would  be  cheaper  for  the  state  to 
hire  teams  to  do  all  the  carrying  for  that  region 
than  to  complete  the  canal.  Sir,  I  do  not  desire 
to  be  censorious,  but  when  I  see  what  ought  to  be 
senatorial  dignity,  turned  into  low,  sneaking,  ly- 
ing species  of  pettifogging,  I  cannot  refrain  from 
rebuking  its  perpetrator.  I  will  now,  sir,  in  my 
poor  way,  endeavor  to  give  you  a  true  description 
of  that  persecuted  region.  I  regret  my  want  of 
graphic  power  to  do  it  justice.  The  Genesee 
Valley  canal  commences  at  Rochester,  and  termi- 
nates at  Olean,  with  a  branch  terminating  at 
Dansville.  The  distance  from  Rochester  to  Mt. 
Morris  is  thirty-seven  miles,  and  from  Mount 
Morris  to  Dansville  fifteen  miles  ;  the  distance 
from  Mount  i\l  orris  to  Olean  is  sixty-six  and  a 
half  miles,  making  in  all,  one  hundred  eighteen 
and  a  half  miles.  From  Rochester  to  Dansville 
the  canal  is  completed,  and  is  doing  as  good  a 
business  as  any  of  the  lateral  canals.  From  Mt 
Morris  to  Olean,  it  is  unfinished.  The  state  has 
expended  over  three  and  a  half  millions  of  dol- 
lars upon  the  work,  and  the  estimates  show  that 
it  will  require  about  $1,300,000  to  complete  the 
unfinished  part.  This  estimate  is  based  upon  the 
high  prices  at  which  the  work  was  let  in  the 
years  1838 — 9.  I  have  no  skill  in  engineering 


but  I  believe  that  the  cost  of  the  work  to  finish 
he  canal,  will  fall  far  below  the  estimate.  Gen- 
lemen  who  are  acquainted  with  the  state  of  the 
infu)ished  part  of  the  canal,  and  who  are  good 
udges,  inform  me  that  it  will  not  cost  over  a 
million. 

The  canal  from  Mount  Morris  to  Belfast,  in 
Allegany  county,  is  located  in  the  valley  of  the 
Genesee  river,  and  from  Belfast  to  Olean  it  is  lo- 
cated in  the  valleys  of  Black  creek  and  Oil  creek. 
There  are  no  better  lands  in  this  state  than  those 
forming  the  entire  margin  of  the  canal ;  the  sur- 
rounding country  has  every  where  a  good  and 
fertile  soil.  The  unfinished  canal  and  the  deso- 
lation along  its  borders  present  a  mournful  ap- 
pearance that  beggars  description  ;  you  will  there 
find  mounds  of  earth  grown  over  with  grass,  locks 
partly  finished,  piles  and  acres  of  stone,  decaying 
timbers  and  plank  prepared  for  finishing  the 
work  ;  you  will  find  farms  cut  in  two,  the  roads 
every  where  obstructed  and  in  places  rendered 
almost  impassable  ;  there,  sir,  you  will  see  the 
deserted  shantees  of  the  workmen,  the  forsaken 
homes  of  the  injured  victims  of  a  cruel  disap- 
pointment, and  you  will  see  those  who  continue 
to  reside  there  brooding  over  their  hard  fate ;  and 
you  would  hear  from  them  the  anxious  inquiry, 
an  hundred  times  a  day,  is  the  Convention  going 
to  prevent  the  finishing  of  the  canal  ?  This,  sir, 
is  but  a  faint  description  of  what  exists  along  the 
line  of  the  unfinished  part  of  the  Genesee  Valley 
Canal.  Sir,  I  believ'e  that  canal  would  yield  a 
handsome  revenue  to  the  state  and  would  much 
more  than  pay  the  interest  of  the  siim  it  would 
cost  to  finish  it  and  keep  it  in  repair.  There 
would  be  no  lack  of  business  on  it.  Allegany, 
Cattaraugus  and  the  northern  counties  of  Penn- 
sylvania, afford  the  greatest  quantity  of  pine  tim- 
ber, of  the  best  quality  that  can  be  found  upon 
an  equal  extent  in  the  United  States.  There  is 
oak  timber  enough  to  supply  the  demand  for 
staves  and  ship  building  for  many  years.  Were 
the  canal  completed,  it  would  extend  the  naviga- 
tion to  the  junction  of  Potato  creek,  with  the 
Allegany  river,  a  point  not  twenty  miles  distant 
from  the  richest  beds  of  iron  ore  and  stone  coal 
in  the  state  of  Pennsylvania.  These  are  articles 
that  are  used.  Coal  is  now  hauled  by  teams  from 
the  beds  near  Smithport  to  Nunda,  a  distance  of 
eighty  or  ninety  miles.  It  is  preferred  to  any 
coal  that  can  be  procured  by  way  of  the  canal. — 
Perhaps  I  may  be  considered  as  visionary,  when 
I  say  that  I  believe  it  would  be  but  a  very  few 
years  if  the  canal  were  finished,  before  the  navi- 
gation of  the  Allegany  river  would  be  improved 
so  that  steamboats  would  pass  from  Olean  to 
Pittsburg.  Could  that  river  be  improved  and 
unite  its  navigation  with  the  Erie  canal,  through 
the  valley  of  the  Genesee,  it  would  afford  a  line 
of  communication  but  little  inferior,  if  any,  to 
that  from  Rochester  to  Buffalo.  In  1837,  seven 
years  after  the  veto  of  General  Jackson  on  the 
Mayville  road  bill,  a  survey  was  made  by  order 
of  Congress,  of  the  Allegany  river  from  Potato 
creek,  twenty  miles  above  Olean  to  Pittsburg. — 
The  survey  was  made  by  G.  W.  Hughes,  Civil 
Engineer  for  the  government  of  the  United  States. 
It  resulted  in  a  report  from  him  that  the  naviga- 
tion of  the  river  could  be  improved  so  as  to  ad- 
mit steamboats  of  over  a  hundred  tons,  to  run 


863 


from  Pittsburg  to  the  mouth  of  Potato  creek, 
0,000.     The   Genesee  Valley  ca- 
nal should  not  be  abandoned.      It  was  one  of  the 
venues  of  communication  that  w:is  often 
••-.•rnestly  recommended   by  that  great    in;m 
masterly  mind  and  carried  out 

..struction  of  the  Krie  canal. 
However  much  the  (Iniesee  Valley  canal  may 
be  disparaged  by  our  little  fry  of  small   lights,  it 
can  boast  of  the  friendship  and  patronage  of  the 
lament  I'd   Clinton.      If   the  proposition  we   are 
considering  is  carried,  it  will  operate  as   an   ex- 
tinguisher of  our  hope  ;  and  we,  poor  outcasts  of 
..any  and  Cattaraugus,  must  pine  away  our 

in  poverty  and  obscurity.  We  have  paid 
our  share  of  the  taxes  to  build  a  splendid  $:!(>(),- 
OIID  palace  for  your  state  officers  ;  we  have  also 
paid  our  share  of  the  taxes  to  embellish  and  adorn 
your  public  grounds  ;  to  make^your  geological 
survey  ;  and  to  build  your  lunatic  asylums,  &c. 
When  taxes  are  wanted  we  are  sure  to  be  remem- 
bered ;  the  tax  gatherer  is  as  sure  to  find  his  way 
to  our  humble  cabins  as  he  is  to  find  his  way  to 
the  lordly  mansions  of  the  cities  and  more  favor- 
ed portions  of  the  state.  Would  it  not  be  good 
policy  for  you  to  make  our  canal  and  improve  our 
condition,  so  that  we  may  be  able  to  lessen  your 
burthen  of  taxation,  by  contributing  more  large- 
ly ourselves  to  the  taxes  that  may  be  required  ? 
In  lieu  of  this,  we  are  told  that  the  revenues  of 
the  state  must  be  seized  while  they  can  be  got 
hold  of,  and  used  up  instantly  in  the  payment  of 
the  state  debt,  and  that  our  hopeles  condition  is 
past  relief.  Well,  sir,  I  suppose  we  must  grin 
and  bear  it.  Nearly  every  other  part  of  the  state 

.•en  most  bountifully  provided  for,  and  I  find 
that  modern  morality  teaches  men  that  when 
their  own  ends  are  answered  the  rest  of  mankind 
may  take  care  of  themselves.  Now,  sir,  I  will 
turn  my  attention  to  the  proposition  I  had  the 
honor  to  submit  to  the  Convention  some  days  ago, 
and  compare  it  with  that  of  the  gentleman  from 
Herkimer.  I  propose,  in  the  first  place,  to  abolish 
the  distinction  between  the  general  fund,  and  canal 
fund  and  get  rid  of  the  perplexities  and  financial 
mysteries  that  have  given  us  so  much  trouble. — 
I  want  to  see  business  done  in  a  plain  wray,  so  that 
we  can  all  understand  it  without  laborious  study. 
If  my  faculties  were  as  acute  as  those  oi 
gentlemen,  I  might  enjoy  the  same  facility  they 
do  in  being  able  to  dive  by  intuition  to  the  bot- 
tom of  what  appear  to  rne  to  be  deep  and  dark 

ones.     Sir,  I  am  told   that  the  very  simple 
:ier  in  which  our  financial  accounts  are  kept, 

!  lutes  the  very  reason  that  prevents  me  from 
understanding  them.  Perhaps  this  may  be  the 
case  ;  for  I  have  no  exalted  opinion  of  rny  capa- 
city ;  it  has  failed  me  so  often  that  I  have  great 

.1  to  distrust  it ;  but  notwithstanding  the  ex- 
callent  simplicity  which  attends  the  keeping  oi 
those  accounts,  1  desire  to  see  that  simplicity  sim- 
plified. I  propose  to  set  apart  a  sinking  fund  of 
•',  which,  will  pay  the  interest  and  re- 
duce the  principal  of  the  state  debt  in  tv. 
seven  years  and  sixteen  days  ;  I  have  had  the 
calculation  carefully  made  by  able  experts,  and  1 
can  with  conlid  that  the  sum  byrnepro- 

i,  will  extinguish  the  entire  debt,  as  I  un- 
derstand the  debt,  in  the  time  I  have  mentioned. 
Should  this  proposition  be  adopted,  it  secures  the 


payment  of  the  debt,  without  the  least  danger  of 
a  resort  to  taxation.  The  canal  revenues  now  up 
t«i  nearly  three  millions  will  never  fall  below  s'l  ,- 
10;  and  tax  need  not  be  dreaded.  That  word 
TAX  seems  to  have  a  peculiar  charm  for  my  friend 
from  Herkimer  ;  he  is  able  to  make  such  ud- 
iniraMe  use  of  it,  he  ought  to  like  it;  it  would 
spoil  his  trade  if  the  word  was  struck  out  of  the 
language  ;  it  is  his  battering  ram  to  storrn  canals 
and  the  most  glorious  bait  to  catch  the  votes  of 
the  miserly  and  avaricious,  that  could  be  inven  t- 
ed.  With  a  sinking  fund  of  $1,600,000,  we 
should  have  a  respectable  sum  to  begin  the  com- 
pletion of  the  public  works  with  ;  they  could  be 
resumed  next  year  ;  the  increasing  revenues 
would  enable  us  to  expend  a  million  a  year  upon 
them  by  Is  H),  and  the" Erie  canal  could  be  im- 
proved and  Genesee  aud  Black  river  canals  com- 
pleted within  six  years  or  seven  at  the  farthest.  A 
gentleman  asks  me,  how  are  we  to  get  on  with 
the  support  of  the  government  if  you  appropriate 
all  your  surplus  tolls  to  the  completion  of  the 
works  ?  The  half-mill  tax  will  be  continued  ; 
every  gentleman  that  I  have  conversed  with  in 
this  Convention  has  said  that  he  was  willing  that 
tax  should  be  continued  until  the  works  were 
finished  ;  but  all  unite  in  objecting  to  an  addi- 
tional tax ;  there  will  be  no  necessity  for -an  addi- 
tional tax  to  support  government.  I  will  refer 
gentlemen  to  the  Comptroller's  report  on  that 
subject ;  he  says  the  annual  wants  of  the  govern- 
ment are  as  follows  : — 

For  ordinary  expenses  of  government, 

Interest  on  railroad  and  treasury  debts, 

For  special  appropriations, 


$687,321  76 

The  salt  and  auction  duties,  he  says,  are  esti- 
mated at ' $150,000  00 

Which  leaves $537,321  76 

Now,  the  debts  are  to  be  assumed  by  the  canals, 
and  the  treasury  will  be  relieved  from  the  payment 
of  $237,  321  76  for  interest  on  (he  rail  road  and 
treasury  debt ;  deducting  this  there  will  remain 
but  $300,000.  The  half  mill  tax  and  other  per- 
quisites of  the  treasury  will  considerably  overrun 
(lie  $300,000,  so  that  gentlemen  may  see  that  the 
support  01  government  is  iully  and  tairiy  provided 
fur.  Tbe  gentleman  from  Herkimer  insists  that 
the  Comptroller's  estimates  in  tins  respect  aix  en- 
tirely too  low;  that  support  of  government  will 
call  for  a  sum  exceeding  his  estimate,  but  I  will 
ask  you,  sir,  whoever  knew  our  Compi roller  to  err 
on  that  side  of  the  question;  the  sum  is  amply 
sufficient.  The  expenses  ol  government  maybe 
cheapened;  it  is  not  necessary  to  pay  a  $3000  sala- 
ry to  get  a  good  judge  ;  experience  shows  it  unne- 
cessary•;  you  may  put  a  judge-ship  with  a  $1500 
salary  in  the  market,  and  the  best  lawyers  we 
have  would  scramble  for  the  prize  ;  we  have  seen 
it  done  and  know  it  so  to  be.  Mr,l  have  not  said 
•ill  I  could  wish  t,,siy  on  i  his  subject,  but  (he  state 
of  my  health  admonishes  me  to- proceed  no  further 
at  present- 

The  question  was  then  taken  on  the  amend- 
ment of  Mr.  JORDAN,  and  there  were  ayes  27 
nays  27,  not  it  quorum. 

The  Clerk  then  counted  the  House  and  report- 
ed 63  members— a  quorum— to  be  iu  attendance. 


864 


Mr.  HOFFMAN  had  desired  to  say  nothing 
further  on  this  subject,  but  the  aspect  of  the  vote 
just  taken  compelled  him  to  call  the  attention  to 
this  question.     The  state   has  authorized  the  lo- 
cation of  a  road  by  the  side  of  the  Hudson  and 
Berkshire  rail-road,  that  has  lead  beyond  a  doubt 
to  an  application  for  relief  in   this  matter.     The 
Long  Island  road  has  got  $100,000  of  this  money, 
which  it  can  now  pay  very  well,  but  if  the  state 
shall  authorize  a  parallel  road  on  the  main,  that 
will   compete  with  its  business,  thai  road  will 
have  an  apology  for  doing  as  some  of  these  roads 
have  heretofore  done,  apply  for  relief.     The  state 
has,  by  a  bounty  of  some  &3,000,000,authorized  the 
construction  of  the  New-York  and  Erie  rail-road 
almost  to  a  point  where   it  reaches  the  Delaware 
and  Hudson  canal,  and  which  beyond  a  doubt  will 
be  connected  with  the  coal  beds  of  Pennsylvania. 
That  canal,  which  derives  its  tolls  from  the  trans- 
portation of  coal,  will  thereby  be  furnishd  with 
strong  ivasons  to  say  to  the  state,  by  your  bounty  an 
injurious  rival  to  us  has  been  created,and  therefore 
we  ought  not  to  pay  you.    It  appeared  to  him  that 
the  rail-road  from  Syracuse  to  Auburn,  which  has 
received  $5200,000 ;  with  the  Auburn  and  Roches- 
ter   which    has     received    $200,000    also,    can 
verv    well  pay.     But  it"  a  railroad   from  Syracuse 
to  Rochester  by  the  canal  valley, witnout  the  eleva- 
tions and  depressions  that  belong  to  the   southern 
route,  shall,  as  was  asked  last  winler,  be  authoriz- 
ed, (of  wnich  he  hardly  entertained  a  doubi,)that 
too  may  be  made  an  apology  for  asking,  not  only 
an   extension  of  the  time  for  the   payment  ot  this 
$400,000,    but,  oeihaps,  become  a  sort    of  equity 
for  general  relief  against  the  debt.     What  he  said 
upon  this  subject,  he  would  very  willingly    have 
avoided  to  say.     He  had  felt  a   strong  desire  that 
this  section  should  be  made  strong   arid  definite— 
that  the  railroads   should  pay  whatever  they   can 
—  that  early  notice,  long  belore  the  money  became 
due,  should  be  given  them  to  prepare  for  the   day 
of  payment.     But  it  it  was  believed  that  a   more 
indulgent  rule  should  be  given  to  them,  it  was  not 
in    his  part  and  duty   strongly   to  object  to,  after 
having  stated  clearly  its  results.     These  roads  did 
not  stand  toward  the  State  in  the  ordinary  relation 
of  debtor  and  creditor.     When    the   State   loans 
money  lor  the  sake  of  gain,  it  should,  like   every 
other   h  ndc-r,  treat  its  debtor  with  the  utmost   li- 
berality.    But  when  the  State,  without  the  possi- 
bility of  gain,  has  unfortunately  advanced  its  credit, 
where  it  can  make  no  profit,  it  should  be    treated 
as   honest  men  treat  their  endorsers   who   expect 
nothing  for  the  loan  of  their  ciedit,  arid  the  strict- 
est   rule,  should  be  applied.     But  if  it   was   the 
pleasure  of  the  Contention  that  a  more  lax    rule 
should  be  applied,  he  had  nothing  further  to  say 
Mr.  JORDAN  said  that  his  proposition  was  riot 
conditional.     It  left   it  in  the  power  of  the  legis 
lature  to    release  nothing  whatever,  but  simply  to 
compromise  or   extend,  as  is  most  consistent  with 
the  inierest  of  the  state,  not  of  the  rail  roads.    He 
did  not   know  but  what   the   better  j.olicy  of  the 
state  was  to  sacrifice   all  these  concerns— because 
if  sold,  they  undoubtedly  will  be— both  to  the  state 
and  the  individuals,  many  of  whom  had  invested 
large  sums  in  them-if  they   failed  to  pay  every 
cent  due   on    the  very  day  it  was   due;  but  he  did 
insist  that   his  proposition  did  not  ask  the  release 
of  a  single   dollar  of  the  interest   and  capital   of 


these  debts.  He  only  desired  that  the  state  au- 
horities  should  have  the  power  of  compromising, 
where  the  best  interests  should  dictate— that  is 
where  it  can  secure  $20,000,  for  instance,  by  a 
little  delay,  instead  of  going  on  with  an  iron  hand, 
a  miser's  grasp,  and  a  Shylock  art,  and  getting 
only  one  cent.  That  was  all  he  asked.  The  case 
of  the  Long  Island  rail  road,  as  was  put  by  .the 
gentleman  from  Herkimer,  was  a  fair  illustration 
of  the  harshness  with  which  such  a  rule  as  this 
might  operate,  and  of  the  policy  of  leaving  it  to 
the  legislature  to  defer  payment,  or  otherwise  re- 
lax the  terms,  as  the  interest  of  the  state  might 
seem  to  require,  in  case  the  road,  uader  the 
effect  ot  a  rival  road,  might  find  itself  obliged 
to  ask  for  it.  He  thought  some  little  considera- 
tion was  due  to  the  individuals  who  had  invested 
in  these  operations.  He  did  not  look  upon 
these  roads  as  mere  private  matters,  they  were  all 
for  the  benefit  of  the  public  in  a  very  extensive 
sense.  They  all  act  as  facilities  for  travel  and 
commerce,  and  thus  enlarge  and  liberalize  public 
feeling  and  sentiment.  Under  the  old  turnpike 
system  many  excellent  roads  were  made  through- 
out the  state,  and  which,  although  all  the  stock 
and  capital  on  the  part  of  the  individuals,  had 
gone  into  non-entity,  and  was  annihilated,  were 
yet  of  immense  benefit  to  the  public.  So  may  it 
be  with  these  rail  roads,  when  the  stockholders 
and  the  capital  which  furnished  them  are  gone,  if 
kept  running  they  may  benefit  the  state  to  a  large 
amount.  At  all  events  he  did  not  think  it  was  so 
culpable  in  a  man's  investing  his  capital  in  a 
rail  road  for  public  use,  that  he  should  be  yielded 
up  to  the  Shylock  vengeance  of  a  system  like  this. 
Give  him  time  to  live  through  it,  in  God's  name, 
if  he  can — for  it  is  enough  to  kill  him  off  when 
he  cannot  pay.  He  repeated,  that  no  sane  man, 
as  an  individual  who  had  debts  due  him,  would 
treat  his  debtor  in  that  way — without  reference 
to  compassion  for  the  debtor,  but  to  his  own  in- 
terests if  he  found  they  were  to  be  promoted  by 
an  extension  of  the  debt.  He  would  be  insane  if 
he  did  not.  All  he  asked  in  this  amendment  is 
that  whenever  a  debt  is  from  any  of  these  institu- 
tions to  the  state,  not  to  release  it,  but  to  compro- 
mise it,  to  take  a  part  of  it  if  they  could  not  pay 
the  whole,  and  the  interests  of  the  state  would  be 
promoted  by  it.  It  was  leaning  backward,  it  was 
jumping  too  decidedly  from  one  extreme  to  anoth- 
er— after  the  liberal  course  that  had  been  hereto- 
fore pursued,  to  say  that,  without  regard  to  the 
state  interests,  as  a  mere  matter  of  financial 
policy  that  the  very  moment  the  debt  is  due, 
you  will  put  in  the  knife,  if  they  do  not 
pay.  We  are  a  people  quite  too  much  prone 
to  extremes,  and  when  any  statesman  how- 
ever eminent  his  talents,  particular  his  views,  or 
honest  his  purpose  mounts  a  hobby,  that  pursues 
an  extreme  so  sudden,  so  vast,  so  contrary  to  all 
former  policy,  and  those  that  govern  the  transac- 
tions between  man  and  man,  and  when  the  inte- 
rests of  the  state  were  in  question ,  we  should  pause 
and  reflect.  Mr.  T.  concluded  by  urging  that  this 
matter  should  be  left  to  legislation — to  the  pre- 
vailing temper  and  circumstances  of  the  times 
when  the  application  is  made — in  short  to  trust 
posterity  with  themselves. 

Mr.  STETSON  said  that  in  his  opinion  it  was 
better  to  strike  out  the  fifth   section  altogether, 


865 


than  to  adopt  the  amendment.  He  would  prefer 
to  leave  it  entirely  to  the  discretion  of  future  le- 
gislatures, than  to  put  in  the  constitution  what 
Will  be  considered  by  them,  and  claimed  by  the 
companies  as  a  constitutional  recommendation  to 
compromise  the  claims  of  the  state  upon  them. 
As  he  should  vote  against  the  amendment  and  for 
the  section  however,  he  desired  to  repel  the 
j,o  of  shylockism,  which  the  gentleman  had 
so  liberally  bestowed  upon  all  who  favored  this 
section.  It  was  not  a  very  pleasant  matter  to 
stand  up  in  such  a  position,  and  he  hoped  the  gen- 
tleman would  allow  him  to  escape  from  it, 

Mr.  JORDAN:  I'll  let  you  off,  sir. 

Mr.  STETSON  WM  very  glad  to  hear  it.  In 
going  over  the  list  of  these  roads  he  found  that, 
with  the  exception  of  the  Hudson  and  Berkshire, 
which  became  due  in  1858,  most  of  the  loans  did 
not  become  due  until  some  twenty  years.  And 
it  appeared  from  the  statements  of  the  gentleman 
from  Columbia  that  the  Hudson  and  Berkshire 
road  was  making  arrangements  to  pay  within  the 
time  specified.  He  tells  us  this  and  yet  desires 
an  amendment  which  shall  seem  to  recommend  to 
the  legislature  that  if  desired  by  the  company  this 
debt  shall  be  put  off  or  compromised.  It  was  im- 
possible to  do  entirely  as  individuals  would  do, 
in  a  matter  where  the  state  was  a  party.  An  in- 
dividual supervised  his  own  affairs  and  conduc- 
ted his  own  business.  But  the  business  of  every 
body  was  not  so  well  taken  care  of.  The  state 
was  a  corporation,  constantly  changing  its  popu- 
lation and  its  intention,  and  it  was  impossible 
therefore  to  provide  for  the  future  payment  of 
money  without  some  decided,  strong  and  absolute 
provision  in  advance  for  them.  To  do  that  was 
the  duty  of  thi->  convention.  Adopt  the  amend- 
ment, and  could  any  business  man  doubt  that 
when  the  time  arrived,  if  they  were  not  prepared 
to  pay,  they  would  point  to  that  provision  as  evi- 
dence that  indulgence  was  intended  to  be  granted 
to  them.  The  State  must  provide  for  this  matter 
before  hand.  The  second  section  of  the  second 
report  of  this  committee  provides  against  any  fu- 
ture loaning  of  the  credit  of  the  state  for  any  pur- 
pose whatever.  And  from  what  he  had  heard 
from  gentlemen  of  both  parties  in  relation  to  that 
section  there  was  a  unanimous  expression  in  its 
favor.  This  being  so,  it  is  an  admission  that 
these  loans,  at  the  time  they  were  made,  were  im- 
politic and  unwise.  Therefore  he  thought  we  were 
called  upon  to  use  all  due  diligence  to  see  that 
these  debts  were  collected  in.  It  was  a  question 
involving  taxation,  for  the  more  of  these  companies 
that  failed  to  pay,  the  more  of  this  contingent  debt 
falls  upon  the  state.  It  was  one  way  of  endanger- 
ing or  postponing  the  completion  of  the  unfinish- 
ed lateral  canals,  and  of  preventing  attention  being 
paid  to  the  applications  from  other  parts  of  the 
state.  The  part  of  the  state  he  represented  had 
long  ago  made  application  for  a  canal,  and  after 
for  a  railroad.  It  was  promised  them  repeat- 
edly under  executive  recommendation.  But 
those  promises  had  never  been  fulfilled,  the 
policy  had  been  abandoned,  and  the  road  was 
now  being  built  by  private  subscription. — 
Here  then  is  the  principle  established  that  it  is 
unwise  to  give  further  aid  to  these  companies, 
thus  cutting  his  constituents  off  entirely,  at  the 
same  time  that  it  is  proposed  to  give  additional 


aid  to  these  other  companies  by  compromising 
and  deferring  their  indebtedness.  These  rail- 
roads were  now  wearing  out,  and  if  they  could 
not  now  keep  up  their  sinking  funds  for  the  pay- 
ment of  this  debt,  when  it  became  due,  they  never 
would  be  prepared  to  pay  it,  and  like  the  in 
stances  of  the  Ithaca  and  Oswego,  the  Catskill 
and  Canajoharie,  enlarge  the  debt  and  add  addi- 
tional burthens  to  the  tax-paying  portion  of  the 
state.  These  views  should  induce  him  to  sustain 
this  section  whether  he  should  be  classified 
among  the  Shylocks  or  misers,  or  not.  All  say 
that  this  state  debt  must  be  paid,  and  yet  who 
proposes  to  make  provision  for  it  ?  Where  is  the 
man  who  comes  forward  and  says  that  when  the 
time  comes  the  money  will  be  paid  and  we  shall 
be  in  a  situation  to  pay  it  ?  He  knew  the  person- 
al unpopularity  of  such  a  course,  but  somebody 
had  got  to  break  his  neck  upon  the  question,  by 
taking  this  money  from  the  scramble  of  localities. 
What  had  been  would  be  again,  and  he  thought  he 
perceived  an  evidence  of  this  now.  In  1842,  how 
different  was  the  feeling.  Not  a  voice  was  then 
raised  to  express  the  sentiments  which  seem  to 
meet  no  little  approbation  now.  The  state  was 
then  in  peril,  and  the  men  trembled  and  looked 
pale,  who  had  been  concerned  in  bringing  this 
great  state  to  a  condition  almost  of  insolvency 
We  had  done  a  little  better  since — four  years  had 
gone  by  and  our  finances  have  improved — and 
there  are  some  who  now  come  out  and  say  we  are 
just  now  in  a  condition  to  begin  that  career  again. 
It  was  his  opinion  that  if  it  was  begun  again,  the 
machine  thus  put  in  motion,  could  not  be  con- 
trolled. No,  there  was  no  middle  course  about 
this  matter — we  must  apply  to  it  the  doctrines  of 
the  temperance  party — touch  not,  taste  not.  On 
the  other  hand,  by  the  exercise  of  a  very  little  pa- 
tience, and  in  a  very  brief  time,  a  few  short  years, 
the  state  will  be  in  a  condition  to  resume  its  pro- 
gress, and  to  use  the  surplus  revenues  of  the  ca- 
nals. We  shall  be  without  debt,  and  the  state 
will,  as  he  desired  to  see  it,  occupy  the  highest 
and  proudest  position  in  the  Union,  or  that  of  any 
sovereign  people  in  the  known  universe.  We 
shall  be  out  of  debt,  paying  as  we  go,  with  abun- 
dant revenues  and  no  liability  to  taxation.  For 
he  could  give  his  assent  to  no  dabbling  policy  of 
shoving  off  a  $100,000  a  year  under  the  pretence 
of  prosecuting  the  public  works.  Let  us  pay  our 
debts,  and  then  we  shall  have  ample  means  for  the 
purpose. 

Mr.  JORDAN  further  explained  and  advocated 
his  proposition.  He  denied  that  it  held  out  an  in- 
vitation to  the  legislature  to  compromise,  or  ex- 
tend or  release,  any  portion  of  these  claims.  He 
supposed  the  case  of  this  H.  &  B.  road,  which 
was  earning  its  $15,000  a  year,  and  paying  its  inH 
terest  regularly,  being  by  flood  or  fire  or  other  ac- 
cident compelled  to  expend  $100,000  in  repairs 
— that  by  extending  this  loan,  it  might  be  able  to 
raise  the  means  of  making  repairs,  resuming  ope 
rations,  and  ultimately  paying  the  state  its  debt ! 
His  amendment  would  permit  this.  The  section 
as  it  stood,  would  compel  the  comptroller  to  sell 
it  at  auction,  for  a  mere  pittance,  for  nobody  would 
pay  it,  and  thus  lose  nearly  all  the  debt,  which  a 
little  indulgence  would  have  saved.  The  policy 
of  this  section  he  had  characterized  as  a  shylock 
policy,  and  such  it  was,  whatever  might  or  might 

83 


866 


not  attach  to  its  advocates.  There  was  no  way 
of  accounting  for  this  tenacity  in  favor  of  this  sec- 
tion, as  it  stood.  There  was  an  idol  set  up  here 
to  be  worshipped — an  idea  that  we  must  sweep 
every  thing  oft'  and  begin  anew — killing  off  all  the 
faults  of  former  legislatures  by  one  death  stab. 
The  debt  must  be  paid  up  at  once,  though  your 
public  works  perished,  and  your  great  canal  was 
dried  up.  He  would  go  with  gemlemen  to  pro- 
vide a  fund  for  the  extinguishment  of  this  debt 
gradually,  and  to  prevent  the  legislature  from  go- 
ing on  with  further  improvements  until  the  means 
should  be  provided ;  but  he  would  not  go  with 
them  to  stop  the  works  already  begun  and  on  which 
millions  had  been  expended,  permitting  them  to 
perish,  rather  than  extend  a  few  years  the  final 
extinguishment  of  the  state  debt.  But  he  would 
assent  to  no  course  which  should  look  like  repu- 
diation or  for  the  postponement  of  a  dollar  beyond 
the  time,  unless  by  the  consent  and  choice  of  the 
public  creditors. 

Mr.  Si'ETSON  insisted  that  the  fact  of  provid- 
ing for  such  a  contingency  as   a  compromise   ot 
these  debts  in  the  Constitution,  was  in  reality  and 
effect   an  inducement  and  an  invitation   to   these 
companies   to  produce  that  contingency.     They, 
at  least,   would   consider  it  so.      The  gentleman 
had   followed    his  (Mr.  S's.)  example,  and  gone 
beyond    the  mere  question  at  issue,   and   shown 
what  would  be  an  acceptable  policy  to  him  in  re- 
spect to  tile  payment  of  the  State  debt.     He   had 
the  firmest  conviction  that  not  a  dollar  less   than 
$1,500.000  would  be   set  apart  as  a  sinking  fund, 
to  pay  oft  this  debt,  and  he  had  the  fullest   confi- 
dence that  it  would  have  a  majority  of  the   votes 
heie.     He  agreed  with  the  gentleman  that  it  was 
desirable    to"  enlaige  the  Erie  canal,   and   to   do 
something   for  the   others  as  soon  as  it  might   be 
done  wisely  and  safely,  but  that  this  sinking  fund 
would  be  established  to  the  amount  of  $1,500,000, 
he  had  no  doubt  at  all.     He  was  not  goin$    back 
to   relate  to  the  Convention  what   took    place  in 
1842,   all  were  aware  of  that.     We    know    what 
Happened  then,  our   constituents  know,   and  we 
know  what  pledges  were  then    given.     We   also 
know  whai  pledge  was  superadded,  and    explana- 
tory of  those  of  1842,  in  1844.     It  was   that  this 
debt   should   br»   paid  in  twenty-two   and  a   hall 
years.     There  was  none  here   except  those   per- 
haps, who  brought  the  State  into  the  condition  in 
which  it  was  in  1S42,  who  would  deny  that,    ex- 
cept,   perh.-ips.it  might  be  the   gentleman    from 
Wayne,  (Mr.  WORDEN,)  who  leads  off  the    oppo- 
sition to  th«i  report.     As  yet.  he  was  the  only  one 
who   had  done  it  although  he   expected    to    hear 
others.     Even    he   did    not    distinctly   say    that 
this  debt   should  not    be    paid   according   to   the 
act    of  '42.     But  there  was  the  sentiment   of  the 
people  and  of  the  press  in  ravor  of  it.     The  ques- 
tion'here,  then,  was  rneiely  one   of  computation, 
and  he  was  a^surtd  by  the  committee  that  the  sum 
of  $1,500,000  was  the  smallest  which  would  pay 
off  the  canal  debt,  within  the  time  specified  in  the 
act  of  '42,  ;>9  explained  by  the  act  of  '44.     If  this 
was  so,  tin  should  doubt  the  fidelity  of  gentlemen 
to  the  public  sentiment — to  the  pledges  contained 
in  those  acts— if  they  should  go  for  a  le-s  sum  for 
this  sinking   fund.      If  party  politics  had  ceased 
here,  as   said   by  some,  then   all  are  democrats— 
and  he  asked  where  was  the  democrat  who  would 


violate  the  duty  he  owes  to  the  people,  and  his. 
fidelity  to  his  principle,  that  will  violate  those 
pieties  in  the  act  ot  '42,  and  recognized  and  ex- 
plained in  the  act  of  '44?  He  expected,  there- 
fore, to  see  no  one  here  advocating  a  less  amount 
for  a  sinking  fond  than  would  nay  the  debt  in  22£ 
years.  As  he  said  belore,  it  was  a  mere  question 
of  computation,  and  if  gentlemen  would  show 
that  the  committee  have  placed  the  sum  too  high, 
and  that  the  debts  can  be  paid  within  that  timer 
by  a  less  sum,  then  he  would  go  wrth  them.  But 
until  that  was  done,  he  should  stand  here,  though 
alone,  steadily  and  throughout,  to  sustain  the  re- 
port. And  he  believed  that  every  democrat,  at 
least,  would  do  the  same. 

Mr.  PATTERSON  said  he  should  be  content 
to  leave  it  to  the  legislature  to  enforce  the  pay- 
ment of  these  debts  when  they  fell  due,  instead 
of  saying  now,  twenty  years  in  advance,  that  un- 
less they  were  paid  by  the  day,  the  companies 
owing  them  should  be  crushed.  As  to  compro- 
mising these,  there  were  two  ways  of  doing  this 
— one  was  to  get  all  you  could,  if  you  could  not 
get  the  whole  ;  and  the  other  to  tell  these  corpo- 
rations that  if  they  did  not  pay  by  the  day,  they 
should  be  sold  under  the  hammer,  and  that  the 
state  would  not  be  a  competitor,  and  that  persons 
who  desired  to  bid  had  only  to  combine  together 
and  take  the  road  at  their  own  price.  That  was- 
a  kind  of  compromise  that  he  would  prevent  if  he 
thought  it  necessary  to  instruct  the  legislature  on 
the  subject.  But  he  was  opposed  to  the  whole 
section.  He  believed  the  legislature  thought, 
when  they  made  thesejoans,  that  the  security 
was  ample.  The  loan  to  the  Troy  and  Schenec- 
tady,  for  instance,  was  not  only  secured  by  a 
mortgage  of  the  road,  but  by  the  bonds  of  the  city 
of  Troy. 

Mr.  STETSON  did  not  doubt  the  security, 

Mr.  PATTERSON  thought  the  gentleman  did, 

Mr.  STETSON  said  expressly  that  he  did  not. 

Mr.  PATTERSON  said  he  inferred  as  much 
from  what  the  gentleman  said  of  the  refusal  of 
the  legislature  to  grant  a  bounty  to  the  gentle- 
man's constituents  for  building  the  northern  rail- 
road— as  if  the  one  project  was  deserving  of  more 
consideration  than  the  other.  But  be  this  as  it 
might,  the  gentleman's  constituents  had  got  a 
prison  instead  of  a  railroad,  and  it  remained  to  be 
seen  which  was  the  better  investment — the  rail- 
road or  the  state  prison  bounty.  But  the  gentle- 
man had  thrown  all  the  blame  of  these  loans  up- 
on one  party,  and  as  he  thought  very  unjustly.  So 
in  regard  to  his  imputations  in  reference  to  the 
creation  of  state  debt.  If  this  was  a  sin,  the  gen- 
tleman himself  was  not  free  from  the  taint.  He 
voted  for  the  Black  River  canal. 

Mr.  STETSON  :  It  is  true  Jhat  I  did  unfortu- 
nately vote  for  the  Black  River  canal,  but  it  was 
on  information  then  received. 

Mr.  PATTERSON  :  I  wish  to  throw  out  no 
imputation  on  the  gentleman  for  that  vote.  No 
doubt  when  he  voted  for  that  canal  he  thought  it 
was  all  right,  but  he  ought  not  throw  out  impu- 
tations against  others. 

Mr.  STETSON :  I  plead  guilty  of  voting  for 
that  canal,  the  only  one  I  ever  voted  for. 

Mr.  PATTERSON  :  I  can  only  recollect  that 
that  canal  run  in  the  gentleman's  neighborhood. 


867 


Ii  it  had  run  in  the  other  direction  perhaps  he 
Would  have  voted  against  it. 

Mr.  STETSON:  It  does  not  run  within  150 
miles  of  me. 

Mr.  PATTERSON  intended  to  make  no  charge 
against  any  body.  Here  was  a  debt  incurred,  and 
whether  properly  or  improperly,  it  must  be  paid  ; 
but  whether  on  that  particular  day  or  on  this,was 
a  matter  of  minor  importance,  so  it  was  paid. — 
Ho  went  on  to  argue  further  against  the  adoption 
of  an  iron  rule  here,  which  would  compel  the  sale 
of  these  roads,  and  the  sacrifice  of  the  interests  of 
the  state  and  of  the  stockholders,  if  the  loans  were 
not  paid  by  that  day.  He  preferred  leaving  it 
to  the  legislature  to  say,  when  the  exigency  should 
arise,  what  would  be  best  for  the  interests  of  the 
state. 

Mr.  RICHMOND  preferred  the  amendment  to 
the  second  section  as  it  stood ;  but  he  believed  it 
would  be  as  well  to  strike  out  the  whole  section. 
He  did  not  like  the  idea  of  advertising  these  rail- 
roads, so  long  in  advancejthat  they  need  not  pay 
up  punctually;  nor  would  be  bind  the  legislature 
to  enforce  payment  rigidly,  without  regard  to  con- 
sequences. Better  say  nothing  about  it. 

The  committee  here  rose,  and  the  Convention 
took  a  recess. 

AFTERNOON  SESSION. 

There  were  only  1-9  members  present  at  the 
usual  hour  of  meeting — half  past  3  o'clock, 

A  long  delay  took  place  as  to  whether  the  Con- 
vention  had  better  adjourn  or  not. 

Mr.  DANFORTH  moved  to  adjourn,  and  called 
the  a>es  and  noe^  thereon,  in  order  losee  who  was 
in  attendan 

They  were  ordered,  and  resulted  thus — ayes  8, 
noes  50.  No  quorum. 

Alter  waiting  until  past  4  o'clock,  a  quorum  was 
attained. 

The  Convention  then  again  went  into  commit- 
tee of  the  whole  on  the  leport  on 

THE  FINANCES. 

Mr.  W.  TAYLOR  resumed  the  chair. 

Mr.  VAN  SCHOONHOVEN  addressed  the 
•committee  at  length  in  opposition  to  the  fifth  sec- 
tion of  the  report. 

Mr.  RICHMOND  continued  the  debate  in  re- 
plv  to  some  of  the  positions  of  Mr.  V.  S.  and  Mr. 
VAN  SCHOONHOVEN  replied. 

The  amendment  of  Mr.  JORDAN  was  negatived, 
31  to  39. 

The  amendment  of  Mr.  F.  F.  BACKUS,  offered 
on  Saturday,  applying  the  section  to  individuals 
•as  well  as  corporations,  now  coming  up, 

Mr.  F.  F.  BACKUS  said  he  had  offered  this 
amendment,  not  because  he  intended  to  vote  for 
the  section  if  amended,  but  because  he  could  not 
consent  to  extend  to  these  companies  a  partial 
rule.  No  fault  had  been  found  with  these  com- 
panies, and.  yet  they  were  selected  out  of  the 
whole  class  of  debtors,  and  were  to  be  subjected 
to  this  iron  rule.  Several  millions  of  dollars  were 
owing  the  state  by  individuals,  and  why  should 
they  be  exempted  ?  .These  companies  had,  it  is 
true,  been  found  in  bad  company,  but  they  had 
always  been  found  faithfully  fulfilling  their  own 
obligations.  One  of  them— the  Delaware  and 
Hudson  canal  company— was  itself  a  model  for 


the  state  in  the  management  of  its  financial  con- 
cerns. 

Mr.  MARVIN  moved  to  strike  out  the  whole 
section.  It  seemed  to  him  most  unwise  to  fix  any 
rule  on  this  subject,  which  could  not  be  modified 
by  circumstances  that  might  arise.  It  appeared  to 
him  that  some  in  this  Convention  were  disposed 
to  act,  as  if  all  wisdom,  present  and  to  come,  was 
contained  in  this  Convention.  He  had  no  doubt 
that  men  would  be  found  in  future  legislatures  full 
as  wise  as  we  are  ourselves,  and  he  would  leave 
them  free  to  act  as  the  best  interests  of  the  state 
at  the  time  might  dictate.  He  examined  the  ope- 
ration of  the  section,  and  showed  its  folly  if  ap- 
plied to  the  ordinary  transactions  of  business. — 
What  man  of  ordinary  prudence,  who  had  loaned 
his  money  on  the  security  of  landed  estate,  would 
be  so  foolish  as  to  foreclose  his  mortgage,  and  sell 
the  farm  at  half  its  cost,  when  it  would  bring  its 
full  value  six  months  afterwards  ?  Adopt  this  sec- 
tion, and  it  would  be  an  inducement  for  knaves  to 
get  control  of  these  companies,  retuse  to  pay  the 
interest  and  then  the  Comptroller  would  sell  out 
the  road,  and  this  same  combination  being  on  hand 
to  buy  it  for  a  mere  song.  He  would  have  no  iron 
rule  on  the  subject. 

Mr.  HOFFMAN  said  when  the  enemies  of  the 
section  propose  to  amend,  it  was  time  to  look  af- 
ter it.  These  corporations  and  corporate  pro- 
perty seemed  to  have  been  held  as  something  sa- 
cred. The  artificial  man  that  the  Legislature 
made  had  been  constantly  regarded  and  treated 
on  a  different  principle  from  the  natural  man  that 
God  made.  He  had  hoped  that  we  had  got  over 
this  partiality  for  the  creature.  But  the  state  had 
not  loaned  its  credit  to  these  corporations  for 
gain.  The  state  gained  nothing  by  it.  The  gain 
was  to  be  all  on  one  side.  The  state,  according 
to  the  promises  made  when  the  loans  were  ask- 
ed for,  was  to  lose  nothing  by  the  operation,  and 
the  advantage,  if  any,  was  all  on  the  side  of  the 
road.  Not  so  in  the  case  of  loans  between  indi- 
viduals— there  both  parties  were  the  gainers, 
and  a  different  rule  should  be  applied  to  them. 
But  here  debts  to  the  amount  of  nearly  four 
millions  had  been  saddled  on  the  people  by  the 
bankruptcy  of  the  concerns  that  represented  the 
security  as  ample.  But  again,  we  weie  making 
provision  here  for  the  payment  of  this  debt 
which  had  been  saddled  on  the  treasury,  and  for 
the  contingent  debt  which  might  fall  upon  it. — 
And  if  we  were  obliged  to  make  provision  for  the 
payment  of  this  contingent  debt,  he  held  that  it 
was  perfectly  right,  and  that  it  could  not  be  re- 
garded as  Shylockism  to  say  to  these  companies, 
you  have  got  our  credit,  we  have  got  to  pay,  and 
we  give  you  notice  to  go  on  like  honest  men  and 
prepare  to  meet  it  by  the  day.  He  said  that  in 
regard  to  the  Erie  railroad,  which  was  not  finish- 
ed, he  had  no  objection  to  allow  that  company 
time  to  complete  its  road — but  all  the  rest  being 
finished  and  in  operation,  lie  would  retain  the 
rule  in  regard  to  them.  He  warned  the  Conven- 
tion that  unless  they  made  provision  to  coerce 
payment  by  these  companies,  whilst  provision 
was  made  for  paying  their  debts,  not  half  of  it 
would  ever  be  paid.  But  the  matter  being  now 
fully  understood,  the  Convention  would  deal  with 
it  as  they  chose.  He  hoped,  however,  the  sec- 
tion would  be  retained. 


868 


Mr.  MARVIN  said  he  had  advanced  no  argu- 
ment in  favor  of  releasing,  deferring  or  compro- 
mising any  debt  due  from  these  corporations.  He 
only  contended  that  this  should  be  left  to  future 
legislation — that  by  putting  a  fixed,  iron  rule  in 
the  constitution,  you  might  work  injury  to  the 
state  itself.  He  believed  the  interests  of  the  state 
might  be  trusted  to  its  representatives  in  the 
halls  of  legislation. 

Mr.  RUSSELL :  Does  not  the  gentleman  so- 
lemnly believe,  that  unless  this  is  fixed  in  the 
constitution,  all  the  companies  will  come  here 
tnd  get  released  ? 

Mr.  MARVIN  replied  in  the  negative.  Had 
he  entertained  such  a  sentiment,  he  would  not 
avow  it.  If  he  was  a  member  of  the  legislature 
and  one  of  these  companies  should  come  there 
and  ask  for  an  improper  release  of  its  obligations, 
he  would  stand  up  and  oppose  it.  He  only  claim- 
.ed  that  this  should  be  left  to  the  representatives 
of  the  people.  We  had  always  had  a  legislature 
— we  always  were  to  have  one,  and  when  the  day 
should  come  that  they  were  not  to  be  trusted  with 
the  interests  of  the  people,  he  should  cease  to 
take  any  interest  in  the  affairs  of  the  state.  Mr. 
M.  did  not  pretend  to  say  but  what  the  legislature 
had  acted  unwisely  at  some  time.  All  of  us  had 
erred  at  some  time.  But  all  this  might  be  trust- 
ed to  the  corrective  hand  of  the  people.  The 
gentleman  from  Herkimer  had  given  an  illustra- 
tion in  his  own  argument.  He  had  told  us  that 
in  1842  the  state  was  on  the  verge  of  bankruptcy 
on  account  of  extravagant  expenditures  on  the 
canals.  Mr.  M.  would  not  admit  that  this  was  so. 
But  allowing  the  premises  of  the  gentleman,  still 
was  not  there  found  a  Hercules  on  this  floor,  who 
was  able  to  call  those  around  him  who  had  the 
ability  and  who  did  stop  these  expenditures  short 
off?  Mr.  M.  was-  not  saying  whether  the  law  of 
that  year  wag  wise  or  not  ?  It  might  have  been 
good  enough  for  a  short  time,  and  as  such,  might 
have  been  approved  by  the  people.  But  that  the 
people  had  endorsed  theviews  of certain  gentlemen 
here,  that  the  state  of  New- York  shall  be  put  into 
swaddling  clothes,  and  lully-by-badied  to  sleep 
for  all  time  to  come — that  the  energies  of  this 
great  people  are  to  be  prostrated,  and  the  state 
put  to  sleep  in  the  lap  of  Delilah,  and  her  locks 
and  strength  shorn  off.  He  apprehended  that 
this  could  not  be  done,  though  you  might  by  com- 
pounding interest  ibur  times  a  year,  placing  your 
debt  at  the  highest  point  to  begin  with.  These 
great  works  of  internal  improvement  would  be  pro- 
secuted to  completion,  not  in  the  short  time  ori- 
ginally intended,  but  in  due  time,  they  would  be 
completed,  do  what  we  would.  The  people  of 
this  state  never  would  be  content  to  see  works  on 
which  so  much  had  been  expended,  go  to  ruin  for 
want  of  comparatively  small  expenditure  that 
would  be  required  to  do  it,  and  to  save  the  state 
from  reproach  of  having  begun  what  it  had  not 
the  energy  or  enterprise  to  finish. 

Mr.  F.  F.  BACKUS  in  reply  to  Mr.  HOFFMAN, 
said  he  could  see  no  distinction  between  the  two 
classes  of  debts.  All  these  loans  to  the  compa- 
nies had  been  made  in  pursuance  of  special  acts 
of  the  legislature.  The  state  took  into  conside- 
ration the  benefits  tolbe  derived  from  these  works, 
and  received  its  gain  in  that  way.  What  he  ob- 
jected to,  was  that  these  companies,  which  had 


done  nothing  wrong,  should  be  selected  out  and 
publicly  branded  in  advance  as  probable  default- 
ers. He  would  not  like  to  have  a  friend,  who  had 
loaned  him  a  sum  of  money,  proclaim  in  the  pub- 
lic newspapers,  that  the  moment  the  debt  was  due 
it  should  be  enforced  immediately.  And  yet  we 
proposed  to  do  that  and  even  worse  ;  for  the  con- 
stitution was  more  public  than  a  newspaper.  He 
objected  to  this  principle,  but  if  it  was  applied 
to  one  class  of  debtors,  he  contended  it  should  be 
extended  to  all. 

Mr.  HOFFMAN  continued  the  debate  in  reply. 

The  committee  then  rose  and  reported  and  the 
Convention  adjourned  till  81-2  o'clock  to-mor- 
row morning. 


TUESDAY,  (89th  day)  Sept.  15. 

Prayer  by  the  Rev.  Dr.  WELCH. 

Mr.  F.  F.  BACKUS  moved  his  amendment  to 
the  5th  section  of  the  report  on  the  Finances. 

This  was  published  on  Saturday. 

Mr.  BASCOM  should  vote  against  this  amend- 
ment and  probably  against  all  amendments.  He 
had  come  to  the  conclusion  that  it  should  be  left 
to  the  friends  of  the  section  to  perfect  it.  He  ap- 
prehended this  section  belonged  legitimately  to- 
the  report,  and  was  calculated  to  effect  the  prin- 
cipal object  of  the  report  itself.  If  an  amendment 
should  be  moved  as  indicated  by  the  author  of  the 
report,  to  except  from  this  section,  the  largest 
and  worst  of  these  debts,  he  (Mr.  B.)  should  vote 
against  it.  He  wanted  the  report  to  stand  as  a 
whole.  He  considered  it  all  to  be  wrong.  After 
the  State  had  expended  millions  of  dollars  in  the 
public  works,  he  could  not  see  the  propriety  of 
abandoning  all  idea  of  their  completion.  He  did 
not  feel  so  much  anxiety  about  the  speedy  en- 
largement of  the  Erie  canal,  for  that  work  run- 
ning as  it  did  through  the  most  populous  parts  of 
the  State,  could  at  any  time  command  the  neces- 
sary influence  to  ensure  any  improvement  that 
the  experience  of  the  future  should  prove  to  be 
necessary  or  wise;  but  not  so  as  to  the  two  unfin- 
ished canals.  He  was  not  prepared  to  say  that 
after  at  least  three-fourths  of  the  necessary  ex- 
penditure had  been  made,  it  was  wisdom  or  eco- 
nomy to  withhold  the  comparatively  small  sum 
required  for  their  completion.  Hopes  and  ex- 
pectations had  been  created  among  the  citizens- 
of  the  sections  of  the  State  particularly  interested 
in  these  works,  which  it  was  now  intended  to 
blast  forever.  He  remembered  too  well  the  feel- 
ings of  the  people  of  Onondaga  and  the  counties 
west  of  it,  while  the  Erie  canal  was  in  an  unfin- 
ished condition,  not  to  sympathise  with  the  anxie- 
ties of  those  similarly  situated  with  respect  to  the 
present  unfinished  canals. 

He  was  not  prepared  to  say  after  both  the  great 
political  parties  had  united  in  spending  so  large 
a  proportion  of  the  means  necessary  for  their 
completion,  that  it  was  right  or  just  for  this  body 
to  undertake  to  take  the  power  away  from  the 
Legislature  and  the  people  of  expending  the  small 
amounts  necessary  to  complete  and  make  them 
useful.  Regarding  the  attempts  to  prevent  for- 
ever the  completion  of  these  works  upon  which 
so  much  had  been  expended  as  not  only  unwise, 
unjust,  and  unfeeling,  he  should  vote  against  the 
proposed  amendment,  although  he  could  see  little 
difference  between  the  [debts  of  individuals  and 


869 


the  liabilities  referred  to  in  the  section,  and  per- 
haps against  all  others  upon  the  ground  that  he 
did  not  desire  to  increase  the  chance  of  adopting 
the  article  to  which  this  section  belongs. 

Air.  PARISH  said:  Residing  as  1  do,  Mr.  Chair- 
man, in  that  section  of'tne  State  through  which 
the  route  or  the  Black  River  canal  passes,  and  rep- 
resenting a  county  bordering  upon,  and  interested 
in  the  completion  of  that  work,  it  is  tny  intention 
in  rising  to  address  the  committee  at  this  time,  to 
confine  myself,  principally,  in  the  few  remarks 
which  1  purpose  to  make,  to  that  part  of  the  re. 
port  now  before  us,  which  relates,  if  relation  it 
may  be  supposed  to  have,  to  the  Black  River  canal. 
It  is  now  more  than  twenty  years  since  the  first 
legislative  action,  in  regard  to  this  work,  was  had 
on  the  part  of  the  State.  As  early  as  eighteen  hun- 
dred and  twenty-five,  the  legislature  passed  an  act 
by  which  it  was  made  "  the  duty  ot  the  canal  com- 
missioners to  cause  examinations,  surveys  and  esti- 
mates,  to  be  made  of  the  most  eligible  routes  for 
navigable  communications"  in  certain  places  there- 
in enumerated;  among  which,  one  was  "  from  the 
Erie  canal  in  the  county  of  Herkimer,  to  the  upper 
waters  of  Black  river,  thence  on  the  most  eligible 
route  to  the  river  St.  Lawrence,  at  or  near  Otjdens- 
burgh  ;"  another  was  "  from  the  Erie  canal  near 
the  village  ol  Rome,  in  the  county  of  Oneida,  by 
the  way  of  Black  river,  to  Ogdensburgh:"  Provi- 
sion was  also  made  by  the  same  act  for  a  survey  ol 
a  like  route  and  fora  like  purpose  "  from  Roches- 
ter to  the  Allegany  river  at  Olean,  through  the 
valley  of  the  Genesee  river,"  being,  as  I  suppose 
the  present  line  of  the  Genesee  Valley  canal.  Al 
though  the  legislature  authoiized  a  survey  of  two 
routes  from  t:u  Erie  canal  to  Ogdensburgh,  yet  it 
did  not  contemplate  the  actual  construction  of  a 
navigable  communication  on  mote  than  one  ol 
them.  The  two  routes  were  rival  and  antagonis- 
tic, and  were  so  understood  to  be.  Each  had  its 
friends  and  advocates.  Tnere  was  a  time — it  was 
after  the  passage  of  that  act  and  before  it  was  set- 
tled which  of  the  two  routes  was  to  be  preferred 
— when  a  Black  River  canal  found  favor  even  in 
the  county  of  Herkimer,  and  had  the  benefit  of  the 
talents,  the  counsel  and  the  influence  of  the  hon- 
orable gentleman,  who  as  chairman  of  committee 
No.  3,  reported  me  article  now  under  conside- 
ration. 

Air.  HOFFMA^J.  The  gentleman  is  entirely 
mistaken. 

Mr.  PARISH.  Did  not  the  gentleman,  at  the 
time  to  which  I  reter,  give  his  attendance  at  a 
meeting  held  in  the  county  of  Lewis,  in  favor  of  a 
BUck  River  canal  ? 

iVlr.  HOFFMAN.  Yes,  I  was  at  the  meeting 
but  I  must  not  be  understood  as  being  in  lavor  o 
the  canal. 

Mr.  PARISH.  That  was  a  meeting  of  the  friend, 
of  the  canal,  and  the  gentleman  being  present, 
supposed  as  a  matter  of  course,  that  he  was  to  be 
numbered  with  its  friends.  Herkimer  was  tiiei 
an  interested  party;  the  question  of  prelerence 
between  the  two  routes  being  still  pending  and  un 
determined. 

In  due  season  an  engineer  was  employed  am 
sent  on  to  examine  the  country  through  which  th 
respective  routes  would  lead,  and  it  soon  becam 
apparent  on  a  cursory  examination,  lhatacana 
oil  the  Herkimer  route  would  be  much  more  ex 


•ensive  than  one  connecting  wiih  the  Erie  canal 
t  Rome,  and  so  much  so,  as  to  render  it  altogether 
nexpedient  to  construct  one  on  that  route  Pre- 
eience  being  thus  given  to  the  Rome  route,  Her- 
imer  from  that  time  withdrew  from  the  contest, 
nd  instead  of  lending  a  helping  hand  to  the  work, 
as  thrown  the  weight  oi  her  influence  against  it. 
But  times  and  circumstances  change  and  men  some- 
imes  change  with  them. 

Applications  continued  to  be  made  in  behalf  pf 
his  work  until  IS36,  when  a  law  was  passed  au- 
horizing  the  construction  of  the  Black  river  canal 
nd  Erie  canal  feeder.  It  received  a  triumphant 
ote  in  both  branches  of  the  legislature.  The  vote 
n  the  assembly  being  eighty-two  in  its  favor  to 
eighteen  against  it,  and  in  the  senate,  seventeen  in 
is  favor  to  ten  against  it.  The  design  of  the  act 
vas  to  provide  for  opening  a  navigable  cornmuni- 
:ation  from  the  Eiie  canal  at  Rnne  to  Carthage  in 
he  county  of  JehYrson,  and  also  to  furnish  a  sup- 
)ly  ot  water  for  the  Erie  canal,  in  its  enlarged 
condition,  on  the  long  summit  level  extending  east 
and  west  of  Rome. 

The  canal  extends  from  Rome  in  a  northerly  di- 
rection to  the  foot  of  the  High  Falls  in  the  county 
of  Lewis,  a  distance  of  thirty-five  miles,  where  it 
connects  with  the  still  waters  of  Black  river.  From 
that  point  to  Carthage,  a  distance  of  42  1  2  rules, 
he  river  is  navigable  for  steamboats,  but  would 
require  some  improvement  There  is  a  navigable 
eeder,  ten  miles  in  length,  from  the  Black  river 
to  the  summit  level  at  Boonville,  in  the  county  of 
Oneida,  making  together  eighty-seven  and  a  half 
miles.  There  are  also  some  six  or  eight  miles  of 
additional  river  navigation,  part  at  the  head  of  the 
eeder,  and  pait  on  Beaver  river,  which  connects 
with  the  navigable  waters  of  Black  river,  making 
in  all  about  ninety-five  miles  of  navigation. 

Under  the  law  authorizing  its  construction,  the 
work  was  commenced  and  prosecuted  until  it  was 
brought,  with  other  public  work*,  to  a  dead  stand, 
mdeV  the  tenth  section  of  the  act  of  1S42,  which 
suspended  all  further  expenditures  on  those  works 
until  the  further  order  of  the  legislature.  There 
has  already  been  expended  upon  this  work  some- 
thing over  $1,500,000,  and  it  is  supposed  that  it 
will  require  about  $500,0uu  to  complete  it. 

I  know  the  gentleman  horn  Herkimer  while  ad- 
dressina  the  committee  a  few  days  since,  estimated 
the  cost  of  completing  the  work  at  $500,000,  but  I 
a.rn  not  aware  upon  what  data  the  estimate  was 
based. 

Mr.  HOFFMAN.  Upon  estimates  of  the  canal 
commissioners  ot  1842. 

Mr.  PARISH  I  will  also  refer  gentlemen  to 
official  estimates  on  this  subject.  Full  arid  de- 
tailed statements  of  the  condition  of  the  Black 
River  cat/al  and  Erie  canal  feeder,  of  the  expendi- 
tures thereon,  and  of  the  amount  required  to  com- 
plete the  work,  may  be  found  in  the  annual  report 
of  the  canal  commissioners,  Assembly  document 
No.  25  of  1843,  and  in  a  special  report  made  in 
obedience  to  a  call  of  the  senate,  by  the  acting  ca- 
nal commissioner  having  the  work  in  charge,  sen- 
ate document  No  49  of  the  same  year.  By  refer- 
ence to  these  documents  it  will  appear  that  the 
excavation  is  nearly  finished,  that  two-thirds  of 
the  locks  have  been  constructed,  and  that  the  work 
as  a  whole  is  trom  three.fourthb  to  four-fifths  com- 
pleted, dependent  upon  the  manner  in  which  the 


870 


unfinished  part  shall  be  constructed.  That  the 
cost  of  the  work  thus  far  is  $1,675,357  16,  and  that 
it  would  require  to  finish  it  with  stone  locks  $639.- 
000  01,  and  with  composite  locks  and  wooden 
bridge  abutments  $436,740  96.  A  portion  of  this 
work  is  finished,  but  no  part  of  it  has  been  brought 


into  use  for  the  purpose  of  navigation, 
in  size  is  the  same  as  the  Erie  canal. 


The  canal 
The  locks 


in  convention  document  No.  47,  pages  35  ai.d  36, 
and  admitting  $375,909  38,  being,  as  is  claimed, 
one-third  of  the  interest  of.  the  maximum  canal 
debt,  to  be  the  true  sum  to  be  annually  applied  as 
a  sinking  fund  to  the  redemption  of  the  principal 
of  the  debt,  the  extent  of  the  claim  would  be. 
For  the  annual  interest  on  the  canal  debt,  •  •  •  $935.001  32 
For  general  fund," iOU.OOO  00 


For  sinking  fund,- 


375,909  39 


are  of  stone,  and  the  work  thus  lar  has  been  well 
and  substantially  done.  Large  sums  have  also 
been  expended  noon  the  other  unfinished  works, 
including  the  Erie  canal  enlargement,  most  ot 
which  is  wholly  unavailable  for  the  purpose  of 
revenue. 

The  question  which  now  presents  itself  for  con- 
sideraiion  is,  whether  the  prosecution  ot  the  un- 
finished works  is  to  be  resumed,  or  whether  they 
are  to  be  suffered  to  go  to  ruin  by  leaving  them  in 
their  present  condition.  And  if  the  work  is  re- 
sumed, when  is  it  to  be  commenced,  how  fast  and 
to  what  extent  is  it  to  be  carried  on  ? 

Hitherto  I  have  seen  nothing  which  indicated  an 
intention  on  the  part  of  the  State,  totally  to  aban- 
don the  whole  or  any  part  of  these  works;  nothing 
which  indicated  any  other  than  a  temporary  sus- 
pension. Large  sums  have  been  expended  from 
time  to  time  to  protect  and  preserve  them,  and  the 
legislature  no  longer  ago  than  at  the  close  of  its 
last  session  appropriated  the  sum  of  twelve  thou- 
sand and  five  bundled  dollars  to  be  expended  in 
protecting  and  preserving  Irom  decay  the  unfin 
ished  works  upon  the  Black  River  and  Genesee 
Valley  canals.  Every  thing  thus  far  has  looked  to 
a  luture  resumption. 

The  most  that  has  been  claimed  was,  that  the 
suspension  should  continue  until  the  finances  ot 
the  State,  without  violating  the  pledges  of  the  act 
ot  1842  and  without  increasing  the  indebtedness 
of  the  State,  would  allow  a  resumption,  when  the 
work  was  to  be  re> commenced  and  prosecuted  as 
fast  as  the  finances  would  admit. 

Whether  regard  be  had  to  the  financial  condi- 
tion of  the"  State,  or  to  the  pledges  of  the  act  o 
1842,  or  to  both,  the  time  has  come  when  the 
Stare,  without  increasing  her  debt,  may,  and  when  j  J"he"  surplus  revenue  of  the  canals  after  redeeming 


Making  a  total  of $1,610,910  70 

This  sum  exceeds  the  amount  of  the  claim,  for 
t  includes  the  interest  on  the  $30,000,  which  is 
not  a  charge  on  the  canal  revenues  under  the  act, 
and  there  are  also  available  funds  on  hard  appli- 
cable to  the  redemption  of  the  canal  debt,  which 
would  reduce  the  claim  considerably  below  $1,- 
500,000;  but  admit  for  the  sake  of  illustration,  the 
latter  sum  to  be  the  amount  of  the  claim  at  the 
present  time,  and  allow  $2,172,500,  the  sum  pro- 
posed by  the  article  before  us  to  be  taken  from  the 
canal  revenues,  to  be  equal  to  the  nett  revenue  of 
the  canals  for  the  present  season,  which  does  not 
vary  much  from  the  estimated  amouni,  and  there 
would  remain,  after  complying  with  the  pledges 
of  the  act  ot  1842,  the  sum  of  $672,500  to  be  ex- 
pended on  the  unfinished  works,  but  not  a  cent  for 
that  purpose  after  complying  with  the  provisions 
of  the  article.  This  sum  of  $672,500  shows  the 
difference  in  amount  between  the  requirements  of 
the  act  and  the  article  at  the  present  time;  and 
this  difference  will  become  greater  and  greater 
from  year  to  year,  inasmuch  as  the  sum  of  $2,172,- 
500  is  to  remain  a  fixed  sum  yearly  chargeable  up- 
on the  canal  revenues,  until  the  principal  and  in- 
terest of  the  canal  debt  shall  be  paid  ;  whereas  the 
sum  necessary  to  meet  the  requirements  of  the  act 
would  become  less  and  less  iiom  year  to  year,  in 
proportion  as  the  annual  interest  of  that  debt  is  re. 
duced  by  a  reduction  of  the  principal  by  applying 
to  its  redemption  the  sinking  fund  created  by  that 
act. 

Taking  into  view  the  yearly  reduction  of  the 
sum  necessary  to  meet  the  pledges  ot  the  act  of 
1842,  and  the  prospective  increase  of  canal  tolls, 


her  true  interests  would  seem  to  require  that  she 
should,  again  commence  and  continue  the  prose- 
cution of  those-  works. 

The  12th  section  of  the  act  of  1842  provides  in 
substance,  (hat  the  surplus  of  the  canal  revenue, 
after  paying  current  charges  and  the  interest  on 
the  canal  debt  and  two  hundred  thousand  dollars 
to  the  general  fund,  shall,  to  an  amount  at  least 
equal  to  one-third  of  the  interest  of  me  canal  debt 
remaining  unpaid,  be  applied  as  a  sinking  fund 
to  the  redemption  of  the  canal  debt  then  existing 
and  authorized  by  the  act.  What  sum  would  now 
satisfy  the  pledges  of  the  act?  As  different  esti- 
mates have  been  made  of  the  actual  amount  of  the 
present  canal  dehf,  and  consequently  of  the  amount 
of  annual  interest  thereon,and  as  different  construc- 
tions have  also  been  given  to  the  act  of  1842,  as.  to 
the  amount  to  be  annually  applied  as  a  sinking 
fund  to  the  redemption  of  f.hat  debt,  so  also  differ- 
ent results  have  been  arrived  at  as  to  the  extent  of 
the  claim  upon  the  canal  revenues  under  the  act. 
Assuming,  however,  the  amount  of  the  canal  debt, 
including  $300,000  authorized  to  be  borrowed  by 
fhe  act  of  1846,  to  be  $16,944,815  57,  and  the  an- 
nual interest  thereon  to  be  $935,001  42,  as  stated 


the  pledges  of  the  act,  Would  enable  the  State  lo 
resume  the  prosecution  of  the  public  works,  and 
make  some  reasonable  progress  towards  their  ulti- 
mate completion,  but  not  so  with  this  fixed  sum 
of  $1,172,500  annually  preying  upon  the  revenues. 

The  arncle  makes  no  provision  whatever  for  any 
of  the  public  works  except  the  improvement  of 
the  Erie  canal,  and  the  aggregate  amount  applica- 
ble to  that  object  is  limited  to  $2,172,500,  a  sum 
altogether  inadequate,  according  to  any  estimate 
that  I  have  seen,  to  complete  the  work  or  to  be  of 
any  real  practical  utility.  A  sum,  too,  which  it 
would  take  about  the  same  time  to  realize  under 
the  article,  that  it  would  to  realize  under  the  acr, 
a  sum  sufficient  to  complete  all  the  unfinished 
works. 

The  article,  I herefore,  contemplates  substantial- 
ly an  abandonment  of  the  Erie  canal  enlargement, 
and  an  actual  abandonment  of  the  unfinished  ca- 
nals. There  is,  to  be  sure,  a  saving  clause  in  the 
article  against  an  absolute  sale  of  the  finished  and 
navigable  canals,  but  none  whatever  against  the 
sale  of  the  unfinished  ones.  I  do  not  know  but  the 
Convention  is  prepared  to  sustain  this  article  in 
its  whole  length  and  breadth,  even  to  an  excision 


871 


or  the  unfinished  works  from  any  further  aid  from 
the  State,  but  I  have  yet  to  be  convinced  that  such 
is  the  case. 

My  constituents,  in  common  with  many  others, 
did  not  subscribe  in  its  lull  extent  to  (he  stop  po- 
licy of  1&4-2;  and  yet  the  suspension  act,  grievous 
as  it  was  felt  to  be,  was  tender  mercy  compared 
with  this  article.  The  former  contemplated  a 
tcmporaiy  suspension,  the  latter  proposes  a  per- 
manent abandonment  of  the  unfinished  works.— 
The  litile  finger  of  the  article  is  thicker  than  the 
loins  of  the  suspension  act;  one,  it  is  true,  chas- 
tiM-s  us  with  whips,  but  the  other  proposes  to 
chastise  us  with  scorpions.  I  know  not  why  it  is 
so,  but  it  would  seem  as  if  efforts,  studied  efforts 
had  been  made  in  certain  quarters  to  under-value 
the  importance  and  produciiveness  ol  .he  lateral 
canals.  Their  value  has  been  estimated  by  their 
tolls  proper,  that  is,  by  the  amount  of  tolls  and 
articles  actually  transported  on  them.  This  is  not 
a  fair,  nor  is  it  a  true  criterion  lor  estimating  their 
value.  Many  articles  as  is  well  known,  pass  upon 
the  Erie  canal  which  would  never  have  reached  it 
WITH  it  not  for  the  lateral  canals.  Give  the  latter 
credit,  as  they  should  have,  for  their  just  propor- 
tion of  tolls  for  the  transpoitation  of  such  articles 
on  the  Erie  canal,  and  we  should  have  a  different 
result,  and  one  that  would  furnish  a  much  lair  test 
of  their  value,  and  show  that  they  are,  in  fact,  a 
source  of  revenue  to  the  State.  The  tolls  of  the 
lateral  canals  have  more  than  doubled  in  the  last 
five  years,  and  nearly  doubled  since  1842,  show 
ing  a  ratio  of  increase  far  greater  than  that  ol  the 
Erie  and  Charnplam  canals. 

The  true  question,  however,  is  not  whether  the 
surplus  revenue  of  the  unfinished  canals,  aftei 
paying  their  ordinary  charges,  would  pay  the  in 
teiestof  their  .•  n tire  cost ;  nor  is  it  whether  it 
would  pay  the  interest  of  a  sum  sufficient  to  com- 
plete them,  of  which,  by  the  way,  there  can  be  no 
doubt.  There  is  still  another  and  higher  conside- 
lation,  one  affecting  the  justice  and  good  faith  o 
the  State.  It  is  whether  there  is  to  be  an  aban- 
donment of  works  upon  which  so  much  has  beer 
expended,  and  which  have  been  brought  so  near 
to  completion,  and  in  anticipation  of  which,  anc 
in  full  reliance  upon  the  plighted  faith  of  th 
State,  property  to  a  large  amount  has  changed 
owners,  and  business  arrangements  and  locations 
fir  life  have  been  made,  and  which,  it  completed 
by  furnishing  increased  facilities  of  transpoitation 
would  give  a  new  impulse  to  business,  more  full) 
develope  the  resources  of  the  country,  arid  greatl) 
add  to  the  wealth,  power  and  piospenty  of  the 
State. 

The  gentleman  from  Allegany  (Mr.  ANGEL)  in 
the  course  of  his  remarks  yesterday,  gave  us  a 
glowing,  and  I  doubt  not,  a  faithful  description  o 
his  own  county ;  and  I  also  can  say  in  inference  U 
the  country  adj  lining  the  Black  River  canal,  tha 
it  is  not  surpassed  by  any  other  portion  of  the 
State  of  equal  extent  in  the  ft-rtility  of  its  soil  o 
the  abundance  of  its  agricultural  productions. — 
Such  will  appear  to  be  I  he  case  by  a  reference  tr 
the  census  ot  1S45.  By  puch  reference  it  will  ap 
p<  ar  that  the  county  of  Lv.vis,  with  one  huridiei 
and  fourteen  thousand  acres  ot  improved  land,an< 
a  population  little  exceeding  twenty  thousand,  ir 
addition  to  her  other  large  and  varied  products 
creditable  to  her  industry,  manufactured  in  184< 
rising  of  six  hundred  and  thirty  tons  of  butter,  anc 


even  hundred  and  ten  tons  of  cheese,  a  large  por- 
ion  of  which  reached  the  Erie  canal,  but  at  an  ex- 
cuse onerous  to  the  producers  and  for  the  want 
f  the  means  of  transportation  which  this  work 
vou Id  atford. 

Without  going  into  an  examination  of  theques- 
ion  of  revenue,  1  would  barely  observe,  that  esti- 
nates  based  upon  information  .obtained  with  great 
:are  and  labor  have  been  made,  which  exhibit  a 
avorabie  result  in  regaid  to  the* Black  River  ca- 
lal.  Independent  of  its  agricultural  and  other 
products,  the  capacity  of  the  Black  River  district 
or  tonnage  in  the  single  articles  of  iron  and  ium- 
>er  is  almost  boundless. 

This  district  of  country  has  not  hitherto  partici- 
pated with  the  other  portions  of  the  Slate  in  the 
jounties  of  government.  It  has  been  taxed  to  pro- 
mote public  improvements  in  which  it  had  little 
or  no  interest.  Of  this  there  has  been  no  serious 
complaint,  but  it  asks  in  return,  and  claims  it  as 
an  act  of  justice  that  it  should  be  placed  upon  a 
more  equal  footing  in  this  respect  with  other  and 
more  favored  parts  of  the  State. 

The  friends  of  this  canal  are  looking,  anxiously, 
but  confidently  looking  to  this  Convention,  not 
only  not  to  interpose  any  obstacles  in  the  way  of 
its  advancement,  but  to  provide  for  an  early  re. 
sumption  and  completion  of  a  work,  which  now 
is,  and  tor  over  24  years  has  been  the  subject  of 
their  sleeping  and  waking  hours,  and  upon  which 
there  exists  an  intensity  of  feeling  of  which  a 
stranger  can  form  no  just  estimation.  I  trust  that 
they  ate  not  to  be  disappointed  in  their  hopes  of 
the  future — that  they  are  not,  with  this  work,  to 
be  stricken  down,  crippled  in  their  industry,  and 
palsied  in  their  struggles  for  life,  by  an  act  that 
shall  receive  the  sanction  of  this  Convention. 

With  these  remarks,  Mr.  Chairman,  which  I 
feel  it  my  duty  to  make,  I  leave  this  much  abused 
but  meritorious  work  to  the  calm  sense  of  justice 
of  this  honorable  body,  in  the  full  belief  that  it 
will  receive,  as  it  deserves,  a  favorable  considera- 
tion, and  that  provision  will  be  made  to  bring  it 
at  no  distant  day,  into  actual  use,  that  it  may  be. 
come  not  only  a  source  of  revenue,  but  dispense  to 
those  who  have  hitherto  shared  in  the  burdens 
without  partaking  of  the  bounties  of  government, 
a  portion  of  the  blessings  which  their  lellow  citi- 
zens in  other  parts  of  the  State  have  long  and  li- 
berally enjoyed. 

Mr.  STRONG  hoped  the  section  would  be 
stricken  out. 

The  amendment  of  Mr.  BACKUS  was  negati- 
ved. 

Mr.  MARVIN  asked  if  the  question  did  not 
now  come  up  on  his  amendment. 

Mr.  VAN  SCHOONHOVEN  moved  to  strike 
out  the  word  "  deferred." 

Mr.  RUSSELL  was  in  favor  of  the  amendment. 
For,  he  said,  that  it  was  well  known  that  rail 
roads  never  pay  back  any  thing  to  the  state. — 
He  was  happy  to  be  able  to  agree  with  the 
gentleman  from  Rensselaer,  upon  one  ques- 
tion connected  with  State  Finances.  If  the 
claims  of  the  state  against  railroad  compa- 
nies for  credit  and  monies  advanced  for  them, 
were  secured  against  release  or  compromise  by 
the  legislature,  he  could  not  see  the  necessity  for 
retaining  the  word  "  deferred"  in  the  section.  It 
might  be  well,  for  reasons  of  sound  public  policy, 


872 


that  the  legislature  should  have  some  power  to 
extend  the  time  for  payment  of  the  debts  due  the 
state,  from  several  of  the  rail  road  companies.  If 
the  debt  fell  due,  in  a  time  of  severe  pressure, 
from  a  road  of  public  utility,  and  possessing  pro- 
perty' sufficient  for  ample  security,  it  might  be 
desirable  to  delay  the  enforcement  of  the  claim  of 
the  state  for  a  brief  period.  These  companies  are 
now  paying  interest,  and  two  per  cent  annually 
of  the  principal, of  the  sums  borrowed.  In  all 
probability,  before  another  commercial  revulsion 
shall  excuse  a  suspension  of  payment  by  these 
companies,  a  large  share  of  the  amount  required 
to  meet  the  whole  liabilities  will  have  been  paid 
into  the  state  treasury.  Mr.  R.  was  satisfied, 
with  the  constitutional  provision  prohibiting  re- 
lease or  compromise  of  these  claims,  that  all  ap- 
plications for  indulgence,  by  way  of  extension, 
would  be  made  in  good  faith  and  could  lead  to  no 
serious  imposition  upon  the  state.  From  the 
time  the  state  first  loaned  its  credit  for  the  bene- 
fit of  railroads,  Mr.  R.  had  ever  been  of  the  opinion 
that  the  people  would  be  saddled  with  the  debts, 
and  the  corporations  would  get  released  by  the  le- 
gislature. About  three-fourths  of  these  loans  were 
already  shouldered  by  the  state,  and  the  remainder 
certainly  would  be,  if  there  shall  be  no  constitu- 
tional restriction.  Give  the  Legislature  the  power, 
and  wrhat  gentleman  would  say,  that,  during  the 
next  ten  years,  some  one  of  these  companies 
would  not  obtain  a  release  ?  Let  the  time  arrive, 
when  other  exciting  questions  of  local  interest  are 
agitated  in  this  capitol; — when  some  question  like 
the  Albany  Bridge,  nearly  divides  the  members 
of  the  legislature,  and  some  railroad  would  be 
sure  to  take  advantage  of  the  occasion,  to  enforce 
a  discharge  of  state  claims  against  it.  Very  plau- 
sible claims  for  relief,  on  the  score  of  justice, 
would  be  urged.  It  would  be  said  that  millions 
had  been  expended  by  the  state  to  build  canals 
and  public  works  in  other  localities,  and  the  cor- 
poration would  claim,  in  behalf  of  its  own  sec- 
tion, an  equal  right  to  drain  the  public  treasury. 
One  release  granted  to  a  single  company,  and  all 
the  rest  would  swiftly  follow.  'I  he  state  would 
not  dare  to  be  partial  in  her  favors.  Grants  to 
one  would  be  extended  to  all.  The  whole  line 
upon  the  railroads  would  be  lost.  But  the  loss 
would  not  end  here.  The  Delaware  and  Hudson 
Canal  Co.  have  borrowed  $,'800,000  of  state  stocks, 
and  are  abundantly  able  to  redem  them.  It  is  un- 
derstood that  provision  is  already  made  by  the 
company.  Do  gentleman  suppose,  that  where  all 
the  railroads  should  have  their  debts  gratuitously 
forgiven,  this  canal  company,  will  not  urge, 
with  an  irresistible  appeal  for  just  impartial- 
ity, that  the  state  shall  assume  its  debt  also  ? — 
The  same  public  interest  and  policy  which 
would  justify  a  release  of  claims  upon  the  rail- 
roads, could  with  much  greater  force  be  urged 
in  favor  of  the  canal  company.  When  this  ca- 
nal was  constructed,  it  was  a  public  benefit 
that  a  comuiunicauon  should  he  opened,  vvh.cli 
would  bring  to  the  Hudson  River  iis  hundreds  ol 
thousands  tons  of  coal  annually,  and  cheapen  rs 
cost  to  all  classes  of  our  citizens.  The  slate 
could  not  then  assume  the  consi ruction  of  this 
combined  canal  and  railroad,  with  safety  to  its  fi- 
nancial condition.  The  alternative  was  presented 
should  the  canal  be  constructed  and  managed  b\ 


the  state  ?  or  should  the  credit  of  the  state  be 
loaned  for  a  part  of  its  cost  ?  The  statesmen 
that  day  preferred  the  latter  course,  though  with 
many  fears  that  it  would  be  held  an  example  of 
of  evil  influence  upon  succeeding  legislation. — 
Their  confidence  in  the  security  of  the  loan  was 
not  misplaced.  But  their  tears  of  the  evil  exam- 
ple have  been  more  than  realized.  Do  the  best 
we  can,  millions  must  be  drawn  from  the  public 
treasury,  without  any  corresponding  public  ben- 
efit. 

The  gentleman  from  Herkimer  never  made  a 
more  just  confession,  than  when  he  said  that  these 
loans  of  state  credit  to  railroads  had  generally 
been  of  no  real  benefit  to  the  works,  for  which 
they  were  intended.  In  the  opinion  of  Mr.  R. 
the  $3,000,000  loaned  to  the  Erie  railroad,  had  it 
been  contributed  from  the  pockets  of  the  stock- 
holders and  expended  with  the  skill  and  economy 
with  which  our  Eastern  railroads  are  built,  would 
have  performed  four  times  the  value  ot  construc- 
tion, which  was  achieved  by  the  state  loan. 

He  hoped  that  road  would  be  completed.  It 
was  vastly  important,  in  a  public,  as  well  as  local 
view.  He  could  forsee  that  strong  reasons  of 
sound  policy  might  induce  the  state  to  defer  the 
completion  ot  that  road, — now  a  condition  of  the 
release  of  the  $3,000,000  loan. 

Upon  the  whole,  he  thought  the  section  quite 
as  valuable  without  the  word  "deferred"  as  with 
it — perhaps  better.  He  had  agreed  with  the  gen- 
tleman from  Rensselaer  in  amending  the  section, 
but  could  not  go  with  him  in  striking  it  out  as 
now  amended.  This  state,  burthened  with  its 
large  debt,  and  under  the  necessity  of  continuing 
a  direct  tax  upon  the  people  to  pay  the  interest 
of  this  very  class  of  debts,  should  be  made  secure 
of  the  ultimate  payment  ot  these  claims  by  the 
debtors,  by  a  stringent  constitutional  provision. 

Mr.  VAN  SCHOONHOVEiYS  motion  was  car- 
ried. Ayes  37,  noes  34. 

Mr.  VAN  SCHOONHOVEN  then  moved  to 
strike  out  the  whole  section. 

Mr.  KIRKLAND  supported  the  motion.  The 
section  would  deprive  the  agents  of  the  State  from 
doing  what  mighi  be  absolutely  necessary  for  the 
best  interests  of  the  State.  There  may  be  cases 
in  which  it  might  be  for  the  interest  of  the  credi- 
tor to  make  some  arrangement  with  his  debtor, 
rather  than  to  enforce  it  at  the  exact  time  of  pay. 
ment.  Such  cases  were  constantly  occurring. — 
Now  he  would  put  in  the  Constitution  no  iron 
rule  to  prohibit  the  agents  of  the  State  to  do  this 
necessary  act.  The  object  of  the  gentleman  from 
Herkimer  to  preserve  the  funds  of  the  Slate,  was 
praiseworthy,  but  this  section  would  defeat  that 
very  object.  He  would  not  hold  out  any  induce- 
ment to  these  companies  to  compromise  or  repu- 
diate. There  was  no  necessity  for  this.  But  he 
would  leave  the  agents  of  the  Stale  free  to  act  as 
the  exigencies  of  (he  case  might  require.  He  had 
no  tear  that  any  of  them  would  hereafter  squan- 
der the  hinds  of  the  State.  As  the  section  stood, 
without  amendment,  if  one  of  these  companies 
should  neglect  to  pay  on  the  day  it  VVF.S  due,  it 
would  be  the  absolute  duty  of  the  Comptroller  on 
the  very  next  dav,  to  proceed  and  sell  out  the  ef- 
fects ot  the  company,  no  matter  how  much  of  a 
sacrifice  was  thereby  produced.  And  with  the 
amendment  it  was  but  little  better.  He  hoped 


873 


the  whole  section  would  bo  stricken  out  and  the 
Legislature  be  left  to  act  as  might  be  for  the  in- 
— not  of  ihese  companies,  bur  of  the  !St;ttr. 
He  wanted  nothing  put  in  the  Constitution  thai 
would  bring  about  a  reperion  of  the,  he  had  almost 
said,  corrupt  scenes  ol' the  Ithaca  and  Ovvego  Rail 
Road  tr:Hi^iffion. 

Mr.  HOFFMAN  stated  that  the  section  ought 
by  all  n  eans  to  be  ret  uried. 

Mr.  WATERBURY  thought  they  had  better 
compromise,  and  sell  off'  some  of  these  old  horses 
If  they  could  not  get  a  dollar  for  a  debt,  take  six 
shillings 

Mr.  HOFFMAN  said  that  if  there  were  none 
who  desired  to  speak  or  throw  a  club,  he  would 
take  the  floor.  On  the  question  as  to  which  of  the 
two  great  parties  were  at  fault  in  creating  the 
twenty-eight  millions  of  debt  he  had  literally  no- 
thing to  say.  It  was  a  question  which  had  been 
fully  agitated,  discussed,  decided  and  could  not 
be  recalled.  But  since  gentlemen  supposed  that 
some  distinction  ought  to  be  taken  in  the  matter, 
there  was  one  thing  he  was  bound  to  admit,  that 
is  that  the  whigsas  a  party,  by  their  leaders,  have 
never  committed  themselves  in  any  manner  to  the 
payment  of  the  debt.  Promises  to  pay  they  have 
cheerfully  made,  but  when  the  ways  and  means 
-ke  such  payment  were  to  be  procured,  he 
did  not  recollect  that  as  a  party  they  ever  stood 
committed  to  any  such  thing.  But  it  was  not  his 
purpose  to  discuss  the  question  as  to  which  of 
these  great  parties  were  responsible  for  this  debt. 
Party  responsible  for  a  debt !  Why  party  is  a.n 
impersonation — it  pays  no  taxes — it  has  no  indus- 
try to  be  taxed — no  arm  to  be  palsied  by  taxation. 
How  make  a  party  responsible  for  taxes  ?  The 
weight  of  the  debt  is  upon  the  laboring  millions 
— the  men  who  t-.il  in  the  fields,  workshops  and 
cities, — they  are  the  men  upon  whom  debt,  like 
an  incubus,  sits.  Parties  will  never  pay  debts — 
they  were  not  made  for  it.  We  are  now  making 
an  effort  to  end  this  debtor  system,  and  he  asked 
the  whigs  if  they  doubted  that  their  own  party 
was  not  borne  down  to  the  dust  by  the  debtor  sys- 
tem in  1841  and  1842  ?  Why  then  should  they 
desire  to  repeat  it  again  ?  Why  should  any  de- 
mocrat adopt  it  ?  Two  administrations  have  been 
obliged  to  employ  all  their  energies  and  powers 
to  pay  the  debts  of  its  prodigal  predecessors  and 
nothing  else.  The  present  and  past  administra- 
tion for  the  want  of  ways  and  means,  have  been  able 
to  do  nothing  except  to  pay  debt.  He  therefore 
could  follow  no  invitation  to  resume  the  journey 
on  that  road  to  ruin.  Mr.  H.  could  prove  that  by 
the  project  of  the  standing  committee,  the  debt 
would  be  paid  at  millions  less  of  public  cost,  than 
by  any  system  of  delay — that  the  ways  and  means 
will  be  abundantly  afforded  to  make  the  Erie 
Canal  to  perform  three  times  its  present  labor,  so 
that  its  toll  might  be  so  reduced  as  to  f  lessen  the 
cost  of  transportation  one  half,  and  yet  bringing 
into  the  treasury  more  than  four  millions  per  an- 
num. He  believed  this  us  much  as  he  believed 
anything  in  mathematics  or  that  wns  formed  upon 
human  experience.  Why  then  should  he  go  Cm 
renewing  the  miserable  debtor  system,  or  for  an} 
increase  of  the  debt;  and  yet  gentlemen  call  hin 
no  friend  to  internal  improvement,  because  he 
would  not  pursue  such  a  course.  On  the  contra- 
ry the  most  ardent  friend  of  internal  improve- 


ments could  not  desire  a  more  liberal,  or  a  more 
munificent  provision  than  was  made  for  the  pro- 
secution of  these  works,  by  the  project  of  the 
standing  committee.  He  was  not  more  opposed 
o  the  debtor  system  than  he  had  been  through  a 
ong  life.  Circumstances  in  early  life  obliged  him. 
o  think  on  the  subject—  that  thinking  and  reading 
ed  to  certain  convictions  too  strong  and  too  deep 
;o  be  removed  by  the  delusions  of  any  period. — 
When  he  had  had  an  opportunity  to  do  so,  he  had 
met  the  question  manfully.  It  was  the  accursed 
)ower  of  taxation,  that  made  pauperism,  produ- 
ced crime,  misery  and  distress  in  all  countries, 
and  he  looked  to  his  children  as  a  parent  when  he 
said  that  he  desired  not  to  see  their  limbs 
ettered,  or  their  bodies  withered  by  anv  accur- 
sed debtor  system,  by  whomsoever  begun. — 
Vtr.  H.  denied  that  he  had  ever  acted  inconsistent- 
y  in  this  matter.  He  had  never  in  any  report  or 
n  any  plan  recommended  the  increasing  of  a  debt 
:br  these  works ;  gentlemen  who  made  these 
charges  were  aware  of  this  and  yet  they  had  the 
candor  not  to  say  it.  A  degree  of  efficacy  has  also 
)een  attributed  to  the  minority  report  of  the  com- 
mittee of  ways  and  means  in  '41,  which  it  had 
never  entered  his  mind  to  suppose  that  it  posses- 
sed. A  vast  government  of  two  millions  of  peo- 
jle — a  sound  system  of  finance — an  able  chief 
magistrate — and  the  paper  batteries  of  the  minori 
ty  of  ways  and  means  in  1841,  overthew  the  whole 
edifice  !  It  was  not  the  report  which  did  this — 
t  was  the  voice  of  truth  which  gained  an  utter- 
ance in  that  report  The  report  had  been  attrib- 
uted entirely  to  him — he  had  a  humble  part  in  it, 
aut  he  was  aided  by  an  able,  intelligent  gentle- 
men, acquainted  with  matters  of  finance,  accus 
tomed  to  look  into  the  money  market,  who 
cnew  where  we  were  going  and  was  not  obliged 
to  guess.  That  gentleman  would  do  no  dishonor 
to  the  Convention — he  would  grace  it,  and  he, 
(Mr.  H.)  felt  bound  to  vindicate  him  when  he 
was  slandered.  Mr.  H.  further  insisted  that  that 
report  was  a  fair  statement  of  the  events  that  led 
to  the  unfortunate  condition  in  which  the  State 
then  was,  and  to  which  it  would  come  unless  its 
course  was  changed.  The  committee  had  no 
choice  but  to  make  such  a  report,  if  they  intend- 
ed to  deal  honestly  with  the  people.  And 
it  was  only  after  five  years  of  sleeping, 
that  the  gentleman  from  Cattaraugus  com- 
plains of  that  report,  and  pretends  to  point  out 
its  errors.  He  will  find  that  the  statements 
of  the  report  are  sustained  by  the  documents  in 
the  public  offices.  We  come  down  now  to  1842. 
The  state  was  in  debt,  its  credit  was  down,  its 
banking  institutions  tumbling  to  piece.-;,  and  the 
act  of  that  year  was  the  only  possible  mode  of  re- 
lief. It  raised  the  credit  of  the  state,  and  it 
pledged  the  faith  of  the  state  that  this  debt  should 
be  paid  off  in  *2i  years.  He  (Mr.  H.)  had  never 
entertained  a  doubt  (and  he  drow  up  the  act  him-' 
self,)  as  to  what  its  construction  should  be.  In 
1M  1  a  question  was  raised  on  the  subject,  arid  the 
friends  of  the  then  administration,  consulting  he 
had  no  doubt  with  the  head  of  that  administra- 
tion, found  a  necessity  for  borrowing  #'JO(J,000 — 
(],2UO,OOL>  it  should  have  been,  for  3QO,OOG  has 
had  to  be  borrowed  since)  and  they  renewed  in 
the  most  explicit  manner  the  pledges  of  the  act 
of '42.  What  was  then  promised,  let  us  perform. 

84 


874 


Never  let  it  be  said  that  in  the  hour  of  our  neces- 
sity, we  made  engagements  and  pledges,  which 
when  temporarily  relieved,  we  were  disposed  to 
withdraw.  Abide  by  your  faith — it  is  just. — 
Good  faith  is  a  jewel.  Stand  by  your  pledges- 
do  as  was  promised  in '38 — pay  "your  debts  by 
1865.  Do  as  was  promised  in  '42,  pay  your  debts 
in  22k  years.  Do  as  was  again  promised  in  '44 — 
pay  your  debt  within  the  same  period — whig  or 
democrat — whoever  or  whatever  made  these  en- 
gagements, or  in  whatever  form  made,  let  the 
faith  of  the  state  be  inviolably  preserved. 

Mr.  HAWLEY  did  not  feel  disposed  to  conti- 
nue the  debate  needlessly,  but  the  gentleman  in 
opening  his  speech  had  got  up  a  false  issue,  and 
had  made  a  long  speech  on  those  premises.  He 
had  charged  that  he  (Mr.  H.)  was  opposed  to  any 
system  that  would  pay  the  debt  of  the  state.  Mr.  H. 
denied  this  in  all  its  length  and  breadth,  and  the 
gentleman  must  have  known  that  his  remarks 
would  not  bear  such  a  construction.  He  had  on- 
ly referred  to  other  plans  submitted  here,  which 
he  preferred,  because  they  paid  off  the  debt  with- 
out taxation  and  without  ruin  to  our  public  works. 
He  knew  of  no  man  in  the  state  who  was  in  favor 
of  the  system  which  had  been  charged  against 
him.  Mr.  H.  replied  to  the  remarks  in  defence 
of  the  minority  report  of  1841,  and  reiterated  the 
charges  which  he  had  before  made  and  referring 
to  facts  to  sustain  his  accusations.  He  read  from 
the  table  relating  to  estimated  deferred  works,  as 
contained  in  the  report  of  4.1,  to  sustain  his  posi- 
tion, and  then  referred  to  the  action  of  the  legista 
ture  thereon. 

Mr.  HOFFMAN  replied,  insisting  that  the 
items  in  his  report  of  1841  were  legitimate.  The 
great  error  of  that  report  consisted  in  the  sin  01 
omission,  and  he  proceeded  to  allude  to  what 
were  omitted.  The  report  did  no  injustice  ex- 
cept in  putting  the  amount  too  small.  The  whol 
state  was  bequeathed.  Every  locality  was  to  be 
fed.  Votes  had  been  given  tor  "  the  system." — 
That  was  the  word,  and  if  the  system  had  been 
carried  out,  this  state  would  have  been  in  the  con- 
dition of  Pennsylvania,  with  its  snake  railroads 
and  immense  debt. 

iVJr.  S'iE  1  bOiN    said    lhat     very    distinct  rel 
erence     had    been      made    10     him    repeatedly 
as  being  responsible  tor   bringing  in  here  a  politi 
Cul  discussion,  with  reference  lu  the  state    indebt 
ednes-s.     Mr.  S.  denied  that  he    nad    done    so,  he 
hud  merel)  it-plied  to    Hie    charge  of  Shyh  ckisn 
\\iiich  had  been  so  litquently  thrown  out    by  >ir 
Jordan,  and  had  ut£t:d  ti.a!    the   course    propnse( 
by  that  gentleman  was    much    in    hanr.ony  wit] 
that  which  had  brought  the  State  to  the  disastrou 
condition  in  wriicn  it  was  placed   in  '42      But  h 
would  say  now  after  'what     hud    follow*  d,  that    i 
one    party      was    chaigeable     iiioie    than  anothe 
with    the    creation    of  the    State   debt,    it  wa 
the    Whig    party.     Mr.  S.  referred  to    the  rnes 
sage  of  Gov.  Seward  in    1839,  and   the  flatterin 
and  glowing  picture  it  gave  of  the  then  condition 
of  the  State,   with  an  immense   work  of  internal 
improvement,    and  with  a    debt  of   a  little   over 
$0,000,000.     Mr.  S.  then  referred  to  the  gradual 
increase  of  the  debt  down  to  1842,  when  the  De- 
mocratic party  carne  into  power,  when  it  reached 
the  sum  of  $28,000,000.     These  facts  he   urged 
were  conclusive   evidences  as  to  whose  door  the 


in  of  creating  this  debt  was  to  be  laid.  Mr.  S . 
eferred  to  other  documents  on  this  point,  all 
ending,  he  urged,  to  show  that  the  debt  wa* 
ncurred  under  what  was  denominated  the 
speedy  impulse"  policy  of  the  Whig  party. — 
'hey  provided  also  he  contended  that  this  debt 
hould  be  paid  in  1865.  And  he  called  upon  the 
Vhigs  to  sustain  the  promise  they  had  made,  and 
heir  Governor  for  them.  And  this  he  urged  was 
11  that  the  report  of  the  committee  called  upon 
hem  to  do. 

Mr.  JORDAN  regretted  that  the  gentleman  from 
Ilinton  had  found  it  necessary  to  misrepresent 
im  in  regard  to  the  use  of  the  term  Shylock. 
lr.  J.  had  no  disposition  to  raise  a  tempest  in  a 
ea-pot — 

"  To  lash  the  waves  on  high, 

To  waft  a  leather  or  to  dro\yn  a  fly." 

Ie  rose  chiefly  to  tell  gentlemen  who  were  not 
>resent  yesterday,  that  he  had  been  totally  mis- 
epresented  by  that  gentleman.  He  regretted  it, 
>ecause  he  had  avowed  distinctly  that  he  was  a* 
•eady  as  any  body  could  be,  to  go  any  reasonable 
ength  to  uphold  the  state  credit,  by  creating  a 
sinking  fund  that  should  ultimately  and  surely 
:>ay  oft'  the  debt.  And  how  could  the  gentleman 
ustify  himself  in  bringing  in  a  political  discuss- 
^on  here — in  drawing  disparaging  distinctions  be- 
;ween  democratic  and  whig  legislatures,  on  the 
jasis  of  any  thing  Mr.  J.  had  said  in  connection 
with  this  classical  word  Shylock  !  Mr.  J.  went 
on  to  allude  to  the  precise  question  which  was  up 
yesterday,  under  his  amendment  to  the  5th  sec- 
tion, and  re-stated  the  positions  he  took  in  de- 
fence of  it,  as  against  the  iron,  rigid,  harsh  and 
mpolitic  rule  which  the  section  proposed  to  es- 
tablish— saying  that  he  said  then,  what  he  re- 
peated now,  that  the  policy  of  crushing  one  of 
these  corporations,  and  selling  its  property  at  a 
sacrifice,  when  by  a  little  indulgence,  the  state 
might  get  its  loan  and  the  company  save  some- 
thing— was  a  Shylock  policy.  But  he  did  not 
apply  this  term  to  the  general  policy  of  this  re- 
port— for  the  only  point  of  difierence  was  as  to 
how  soon  the  debt  should  be  extinguished — or 
rather  Mr.  J.  was  paying  off  and  prosecuting  the 
public  works  at  the  same  time,  and  not  leaving 
them  to  perish,  when  our  reliance  must  be  on 
them  to  pay.,  But  on  the  other  question— the  po- 
licy of  crushing  and  sacrificing  these  little  rail- 
roads for  not  being  able  to  pay  up  at  the  day  and 
hour— the  Shylockism  of  the  policy  had  been  con- 
fessed by  the  motion  made  by  the  gentleman  from 
Herkimer  himself  to  strike  out  this  word  deferred. 

Mr   STETSON  :     He  voted  against  it. 

Mr.  HOFFMAN  did  not  oppose  it. 

Mr.  JORDAN  said  the  gentleman's  vote  may 
have  opposed  it — his  speech  did  not — and  by  the 
vote  of  the  Convention  the  obnoxious  word  that 
he  desired' to  get  rid  of  had  been  struck  out — as 
a  little  too  Shylocky  for  practical  use.  That  mat- 
ter having  been  disposed  of,  and  that  so  far  as 
the  general  principles  of  the  report  were  concern- 
ed, the  gentleman  from  Clinton  would  have  no 
farther  occasion  to  raise  a  whirlwind  on  the  use 
of  this  word  Shylock. 

Some  lurther  explanations  followed  between 
Messrs.  SI  ETSON  and  J  ORDAIN. 

Mr.  PATTERSON  followed.  He  should  not 
have  risen  to  speak  yesterday,  but  for  the  remarks 


875 


which  fell  from  the  gentleman  i'rom  Clinton. — 
Cornplunt  had  been  made  ot  that  reference.  HI 
(Mr.  P.)  lud  -aid  what  he  did,  because  that  gen 
tleman  had  travelled  out  of  his  way  to  charge  the 
\vh  >le  State  debt  on  the  Whig  party.  Mr.  P.  de 
precated  these  chaises  and  to  the  dragging  in  c 
parry  considerations.  But  when  such  charge 
were  made,  they  would  be  repelled.  Mr.  P.  had 
said,  that  it  it  was  a  sin  to  vote  for  public  improve 
ments,  some  small  portion  of  that  sin  lay  at  the 
door  of  the  gentleman  from  Clinton,  for  he  hac 
voted  for  the  Black  River  Canal.  Mr.  P.  had  beet 
asked  to  look  at  his  own  votes  for  works  of  inter 
nal  improvements.  He  w;is  ready  to  answer  ibi 
ail  those  votes  here  or  to  his  constituents.  Whal 
wore  those  voles  ?  He  voied  for  the  Genesee  Val 
ley  canal,  the  Black  River  canal,  and  the  Eiie  en- 
largement. This  last  had  been  recommended  in  a 
<ri  drawn  up, and  signed  by  the  gentleman 
from  Herkimer.  He  was  the  h'ist  man  that  re- 
commended that  enlargement.  The  bill  was  pass 
ed  authorizing  the  Canal  Board  to  enlarge  the  ca 
nal  at  such  times  and  in  such  manner  as  they 
misjht  determine.  In  the  Legislature  of  that  year 
there  were  but  about  30  Whi^s,  all  told.  The  Ca- 
nal Board  were  composed  entirely  of  the  genile- 
man's  friends.  They  fixed  upon  a  size  of  70  by 
7  feet.  Some  wanted  a  larger  canal — some  not  so 
large — that  size  was  finally  determined  on  The 
estimates  were  placed  before  the  Legislature, 
showing  thai:  the  enlargement  could  be  made  for  a 
little  over  $12,000,000.  On  this  estimate  he  voted 
lor  the  enlargement. 

The  highest  estimate  for  the  Genesee  Valley 
canal  was  about  two  millions — for  the  Black  river 
one  million.  Had  these  canals  been  built  within 
these  estimate,  he  never  should  have  regretted 
his  votes  lor  them — and  he  had  every  reason  to 
believe  that  they  were  correct.  In  1838,  when 
the  whigs  for  the  first  time  had  a  majority  in  the 
assembly,  the  commissioners  told  the  legislature 
that  they  could  economically  expend  that  year, 
one  million  over  and  above  all  that  could  be  real- 
ized Irorn  canal  tolls.  The  assembly  passed  a  bill 
appropriating  one  million  for  the  enlargement, 
and  sent  it  to  the  senate,  where  the  whigs  had 
but  four  members.  When  the  bill  came  back,  the 
one  million  had  grown  to  four.  The  assembly 
Concurred. 

iV.r.  LUOMIS  said  that  amendment  was  made  in 
committee  of  the  whole  in  the  house. 

Mr.  PATTERSON  said  the  gentleman  was 
mistaken.  The  second  section  of  the  house  bill 
did  place  three  millions  moie  at  the  discretion  of 
the  commissioners — but  the  senate  made  this  con- 
tingent appropriation  absolute.  Prior  to  1840, 
when  the  whigs  c^me  into  power,  in  all  the 
branches  of  the  government,  contracts  had  been 
made  on  the  canal  to  the  extent  of  over  fifteen 
millions.  The  whigs  had  to  provide  the  means 
tor  fulfilling  these  contracts.  When  the  other 
party  came  again  into  power,  they  took  the  course 
of  violating  these  contracts,  and  instead  of  raising 
means  to  go  on,  thev  contented  themselves  with 
borrowing  to  pay  contractors  for  breaking  up  con- 
tracts.  So  with  the  Genesee  Valley  and  Black 
river  canals.  They  were  both  entirely  under  con- 
tract prior  to  1840.  And  since  '40  but  one  mil- 
lion had  been  put  under  contract  by  the  whigs.— 
As  for  the  Erie  rail  road  loan,  he  voted  for  that 


also,  and  was  in  a  minority  here  ot  seventeen 
members,  all  told— the  democrats  having  all  but 
seventeen  in  the  house  and  lour  in  the  senate. — 
He  wished  to  say  a  few  words  while  up  in  regard 
to  this  report  ol  the  finance  committee.  He  was 
in  favor  of  providing  a  sinking  fund  for  ihe  extin- 
guishment otthe  debt;  he  was  willing  the  amount 
of  debt  which  the  State  might  at  any  time  incur, 
should  be  limited  and  that  provision  should  be 
made  for  the  support  of  government,  because  he 
took  it  that  the  people  never  would  again  submit 
to  direct  taxation  for  it.  But  he  was  unwilling 
to  tie  up  the  hands  of  the  legislature  hereafter, 
and  to  say  that  they  should  not  expend  more  than 
$2,500,000  on  the  enlargement  of  the  Erie  canal. 

Mr.  HOFFMAN:  I  hope  the  gentleman  does 
not  suppose  that  I  have  brought  in  any  such  pro- 
vision. It  was  imperative  that  they  should  ap- 
propriate that  amount  in  the  aggregate — leaving 
entirely  to  the  legislature  every  thing  beyond  that. 

Mr.  PATTKRSON  understood  the  gentleman 
to  give  it  as  his  deliberate  opinion  that  $1,000 ,000 
was  all  that  should  be  expended  on  the  Erie  can- 
al- 
Mr.  HOFFMAN  did  say  that  two  and  a  half 
millions  would  treble  ihe  power  and  capacity  of 
the  canal,  enable  you  to  reduce  tolls  one  half,  and 
even  surplusses  enough  to  complete  the  enlarge- 
ment and  other  works.  Nobody  thought  of  tying 
up  the  appropriation  lor  the  canal  to  two  and  a 
half  millions. 

Mr.  PATTERSON  was  very  glad  to  hear  that. 
But  he  understood  the  gentleman  to  say  that 

, 000,000  would  be  sufficient  to  enlarge  the  can- 
al to  such  a  size  as  would  answer  all  the  purpos- 
es of  navigation. 

Mr.  HOFFMAN  was  satisfied  that  amount 
would  be  ample  for  the  purpose  he  specified — but 
he  did  not  intend  to  tie  up  the  funds  beyond  that. 

Mr.  PATTERSON  continued.  He  supposed  it 
would  be  fifteen  years  before  this  aggregate  of  $1»- 
500,000  would  be  realized. 

Mr.  HOFFMAN  said  he  had  stated  that  on  the 
owest  estimate  of  increase,  it  might  be  realized 
n  ten  years.  According  to  Mr.  RUGGLES' esli- 
nafe,  it  would  be  sooner. 

Mr.  PATTERSON  had  understood  all  along 
hat  Mr.  RUGGLES'  estimates  were  repudiated  en. 
irely 

Mr.  HOFFMAN  :     Not  at  all. 

Mr.  PATTERSON  was  very  glad   to  hear  that. 

Mr.  HOFFMAN  continued.  He  stated  the  rule 
hat  he  thought  would  apply — and  that  Mr.  RUG- 
GLES' esiimaie  of  the  increased  tolls,  so  far  cor- 
esponded  with  the  matter  of  fact.  His  error 
onsisted  in  stating  the  current  expenses  of  the 
anal  at  a  lower  rate  than  they  were. 

Mr.  PATTERSON  here  gave  way  for  a  motion 
o  rise — which  prevailed. 

The  Convention  took  a  recess. 

AFTERNOON  SESSION. 

There  were  only  33  members  present  5  minutes 
fter  the  usual  hour  of  meeting. 

A  motion  to  adjourn  was  lost — ayes  7,  noes  35. 

Mr.  PATTERSON  addressed  the  committee  at 
ength,  in  opposition  to  the  report  of  the  finance 
ommittee. 

The  question  was  put  and  the  motion  lost. 


876 


The  next  question  was  to  strike  out  the  5th  sec- 
tion, on  motion  of  the  gentleman  from  Chautauque. 
(Mr.  MARVIN  )  Lost,  ayes  35,  noes  39. 

Mr.  HOFFMAN  said  thai  in  any  mode  of  pay- 
ing the  canal  debt,  by  any  fixed  sura,  there  would 
always  be  a  certain  amount  in  arrear.  Ordinarily 
it  is  believed  that  the  sinking  fund  would  enable  the 
officers  to  procure  all  <he  extension  necessary.  By 
the  act  of  1844  thc-re  is  a  direct  tax  of  $'56,000  for  the 
benefit  of  the  canals;  and  by  adding  this  $15U,000 
you  would  liberate  that  tax,  one  tenth  of  one  mill, 
and  let  it  be  used  for  the  ordinary  current  expen- 
ses of  the  State.  And  the  committee  believe  that 
by  this  section,  they  comply  with  the  spirit  of  the 
act  of  1844.  The  salt  and  auction  tax,  the  half 
null  tax  and  the  $'56,000  tax,  will  meet  the  current 
expenses  of  the  State.  The  act  gave  the  credi- 
tors the  taxing  power  of  I  he  State,  and  the  canal 
tolls;  and  the  committee  have  acted  on  this 
strict  principle.  No  matter  who  advanced  you  the 
money;  the  rroney  has  been  leni ;  and  the  sove- 
reign is  guilty  in  the  sight  ol  God  and  man,  it 
you  suffer  your  credit  to  sink  ;  it  is  different  from 
a  promissory  note  ;  to  neglect  to  pay  your  State 
debts  or  to  suffer  your  State  stocks  to  decline,  you 
rob  your  creditor,  and  keep  him  out  ot  so  much 
amount  of  capital  which  he  lent  you,  in  propor- 
tion as  you  let  your  slocks  decline.  A  blighted 
harvest,  and  other  circumstances  may  curtail  your 
revenue  in  future  years;  and  these  yoa  ought  to 
provide  against  Delay  is  dangerous  on  every 
ground.  He  felt  almost  tempted  to  go  back  and 
go  over  the  whole  ground  to  explain  the  plan  ot 
surplussage.  But  time  was  too  precious.  Every 
delay  that  is  gained,  is  p^id  lor  by  millions.  In 
1825  we  promised  to  pay  a  debt  in  1836.  It  was 
nor  done.  In  1S33  we  promised  to  pay  a  forty 
million  debt  in  1865.  This  was  postponed  j  till 
you  disgusted  the  people.  And  so  with  all  the 
other  delays.  The  heart  sickens  at  them.  Look  at 
Ohio;  taxation  is  obliged  to  be  resorted  to.  to  pay 
eleven  millions  debt;  and  they  clamor  for  the 
sale  of  some  of  the  canals.  And  if  you  delay  and 
try  to  borrow,  you  will  be  met  with  the  cry  of  re- 
pudiation; and  pay  for  it  dearly  and  with  dis- 
grace ;  sneedy  pavment  is  the  cheapest  alter  all 
The  legislature  has  not  been  very  abusive  in 
the  taxing  power,  or  in  the  giving  away  of  money ; 
but  in  borrowing  money  they  have  been  most  dis- 
gracefully abusive.  When  gentlemen  who  ask 
for  delays  will  bring  forward  their  projects  and 
what  they  intend  to  achieve  by  them,  I  shall  then 
be  able  to  show  still  more  the  dangers  of  these  or 
any  other  delays. 

Mr.  KIRKLAND  wanted  to  ask  two  or  three 
questions. 

Mr.  HOFFMAN  :  I  will  hear  them. 
Mr.  KIRKLAND  :  Is  it  the  intention  that  this 
$1,500,000  should  be  annually  applied  to  the  ex- 
tinguishment of  the  interest  and  principal  ?  [f 
so,  how  can  money  be  borrowed  on  the  strength 
of  this  sinking  fund  ?  Is  it  the  intention  to  give 
the  state  officers  power  under  this  section  to  bor- 
row money  ?  And  finally,  what  is  meant  by 
"  equitable  taxes  ?" 

Mr.  HOFFMAN  said  it  was  designed  so  to  ap- 
ply the  sums. 
Mr.  KIRKLAND :  And  as  to  the  ability  to  bor- 


Mr.  HOFFMAN  :  As  to  that,  if  on  the  1st  of 
Sept.  1847,  it  is  known  that  there  is  $1,500,000  in 
sinking  fund,  that  fund  will  have  considerable 
credit,  and  I,  as  a  public  officer  holding  public 
stocks  in  credit,  I  should  not,  would  not  hesitate  as 
to  that  course.  And  as  to  giving  them  the  loaning 
power,  I  have4 shown  that  this  matter  should  be 
attended  to  by  the  legislature.  The  words  "  equi- 
table taxes"  are  used  instead  of  "  direct  taxation," 
because  it  might  be  necessary  in  the  contingency 
of  a  war,  not  only  to  tax  real  and  personal  estate, 
but  also  trades,  professions,  and  every  source 
within  the  reach  of  the  taxing  power  of  the  state. 

The  6th  section  was  passed  over. 

Mr.  MARVIN  asked  if  it  would  not  be  as  well 
to  strike  out  the  word  "  quarterly." 

Mr.  HOFFMAN  said  that  on  ail  these  loans  the 
state  paid  interest  quarterly — whatever  might  be 
the  rate.  11  therefore  the  state  advanced  money 
to  the  canals  to  pay  interest  on  the  canal  debt,  it 
certainly  ought  to  receive  quarterly  interest  in  re- 
turn. 

Mr.  MARVIN  said  this  would  be  applying  on 
behalf  of  the  slate,  a  rule  to  charge  compound  in- 
terest that  was  not  allowed  in  the  case  of  an  indi- 
vidual. He  moved  to  strikeout  that  word. 

Mr.  PATTJ&RSON  supposed  this  was  the  rule 
applied  to  make  up  the  sum  of  $672,500  in  this 
article. 

Mr.  TILDEN;  No;  that  is  based  on  annual 
costs. 

Mr.  PATTERSON  :  To  make  that  up,  I  sup- 
pose you  include  the  salt  duties,  which  were 
created  for  the  very  purpose  of  constituting  a  ca- 
nal fund  ? 

Mr.  TILDEN;  All  the  state  officers,  from  the 
beginning  of  the  canals  until  now,  have  considered 
these  salt  duties  a«  a  part  of  the  canal  fund. 

Mr.  PATTERSON  :  Well,  if  they  have  so  con- 
sidered  them  it  does  not  follow  that  the  whole  peo- 
ple of  the  state  were  30  green  as  to  believe  that 
this  duty  of  12  cents  a  bushel,  which  was  created 
for  the  express  purpose  of  making  the  canal  fund, 
belonged  to  the  general  fund.  Not  a  man  believes 
it,  here  or  elsewhere. 

Mr.  HOFFMAN :    I  believe  it. 

Mr.  PATTERSON :  Then  I  will  put  you  down 
as  No.  1.  This  tax  was  paid  by  the  people  of 
Western  New  York  for  ihesole  purpose  of  build, 
intc  the  canals.  Not  a  dollar  belonged  to  the  gen- 
eral fund.  The  canals  had  made  these  duties.  In 
1817  they  were  only  some  $8000,  and  from  that 
they  had  increased  to $250,000. 

Mr.  LOO  MIS:  You  might  as  well  credit  the 
canal  fund  with  the  increased  value  of  the  farms 
in  Wes'ern  New  York. 

Mr.  PATTERSON:  If  the  gentleman  insists 
that  the  increased  value  of  these  farms  beloi  gs  to 
the  general  fund,  then  the  rule  will  apply.  He 
(Mr.  P  )  could  not  assent  to  any  such  doctrine  as 
vas  contained  in  this  proposition,  and  charge  the 
canal  fund  wilh  funds  that  were  created  expressly 
lor  it. 

Mr.  HOFFMAN  replied, contending  that  it  had 
always  been  admitted  from  1817  down,  that  these 
salt  duties  did  belong  to  the  general  fund  and 
should  be  restored.  To  contend  for  the  contrary 
now,  was  but  another  species  of  repudiation.  He 
read  from  a  report  in  1830  in  proof  of  his  asser 
tion. 


877 


The  debate  was  further  continued  by  Messrs. 
RHOADKS  and  VAN  SCHOONHOVEN. 

Mr.  l!.\S('o.M  said  thai  sin<-<>  the  remarks  of 
tlie  chairman  of  the  committee  in  favor  of  com- 
pelling the  canals  to  pay  to  the  general  fund  the 
whole  amount  of  salt  duties  and  compound  inter- 
est thereon,  he  was  disposed  to  say  a  word  upon 
that  subject.  The  salt  duty  was  strictly  a  local 
tax.  By  the  act  of  1817,  providing  for  the  con- 
struction of  the  Erie  and  Champlain  canals,  the 
duty  upon  salt  manufactured  in  the  Western 
District  was  raised  from  3  to  12  1-2  cents,  and 
appropriated  to  the  canals. 

Mr.  HOFFMAN  inquired  if  salt  was  made  ex- 
cept in  the  western  district? 

Mr.  BASCOM  said  there  was  not,  but  the  act 
-ii  carefully  drawn  as  to  permit  salt  manufac- 
tured in  other  parts  of  the  State",  if  springs  should 
be  found,  to  escape  this  duty. 

The  salt  was  consumed,  too,  almost  exclusively 
by  the  people  of'  the  Western  part  of  the  State, 
and  the  high  duty  of  12  1-2  cents  upon  a  bushel 
of  salt,  worth  sometimes  from  G  to  10  cents,  was 
cheerfully  paid  by  the  consumers,  because  the 
tax  went  to  aid  in  constructing  this  important 
State  work.  It  would  not  have  been  borne  for 
any  other  purpose.  Would  it  have  been  tolerated 
if  the  State  had  undertaken  to  impose  a  local  tax 
of  this  character  upon  one-quarter  of  the  State  for 
the  payment  of  the  current  expenses  of  govern- 
ment? And  yet  it  would  have  been  just  as  right 
to  have  done  so  as  to  convert  these  duties,  and 
the  compound  interest,  to  such  a  purpose  now. 
The  effect  would  be  this,  because  the  people  of 
the  Western  part  of  the  State  had  proposed  and 
consented  to  pay  9  cents  additional  duty  upon 
each  busLel  oi  salt  they  consumed,  in  considera- 
tion of  the  canal  beii.g  built,  they  should  now  pay 
a  sum  equal  to  all  those  duties,  together  with  in- 
•terest  compounded,  in  the'shape  of  tolls  upon  the 
produce  they  sent  to  market  upon  a  canal  they 
built. 

Bui  this  wns  not  all  that  the  people  of  We,' tern 
part  of  the  State  had  to  do  to  ensure  the  com- 
mencement ot  th«t  work.  The  7th  section  of  the 
act  of  Ibl7  had  this  provision: 

"  That  it  shall  be  the  duty  of  the  said  canal  commission- 
ers to  raise  the  sum  oi  two  hunched  and  fitly  thousand  dol- 
lars to  be  appropriated  towards  the  making  and  complet- 
ing of  the  said  canals,  1'rom  the  Ajohawk  nver  to  the  St:- 
4ieca  river,  and  fiom  Lake  Champlain  to  Hudson's  river, 
by  causing  to  be  asse-sed  ana  1.  vied,  in  such  manner  as 
the  said  commissioners  may  determine  and  direci.the  said 
sum  of  two  hundred  ai.d  liny  thousand  dollars  upon  the 
lands  and  real  estate  lying  along  the  route  ol  the  said  ca 
nals  and  within  twenty-five  miles  of  the  same,  on  each 
side  thereof. 

'•  And  the  said  assessment  shall  be  made  on  said  lands 
according  to  the  ben-  lit  which  they  shall  be  considered  by 
th  s.u<l  commissioners  as  drawing  from  the  making  of  the 
said  canals  respectively." 

The  lands  within  27  miles  of  the  canal  Iron: 
the  Mohawk  to  the  Seneca  rivet,  were  in  etiir 
mortgaged  for  a  quarter  of  a  milin,n,  and  had  nut 
the  success  of  the  enterprize  disappointed  the  op- 
ponents  of  ii,  this  sum  would  have  been  Collected. 
and  this  sum  too,  wiih  i.s  inh-icst,  migM  with  a> 
much  propiiety  gs  the  salt  duty,  be  made  to  swell 
th's  claim  upon  the  canal  fund. 

Mr.  TlLDEN  said  lhat  when  the  canals  came 
to  be  constructed,  in  Older  to  'provide  ways  and 
means  for  that  purpose  this  tax  was  increased,  but 
in  noae  of  the  discussions  on  this  occasion  is  it, 


to  be  found  that  they  were  treated  in  any  manner 
different  from  any  other  \\ays  and  means  provided 
for  that  ohjec4.  Ir  w.is  the  propeiiy  arid  icvenue 
of  the  Slate,  and  \\as  so  deemed  at  ihe  time,  and 
included  in  other  revenues  and  property  of 
•lie  Stale,  applied  to  the  formation  of  a  fund  to 
(ietray  the  expenses  of  conducting  of  the  canal. 
At  that  time,  the  men  who  had  main  charge  of 
i he  undertaking  and  through  whose  exertions  it 
was  adopted  by  the  people,  in  eveiv  form  held  out. 
as^an  inducement  that  these  advances  would  ulti- 
mately be  reimbursed,  and  that  the  people  would 
even  derive  profit  Irom  the  investment.  On  the 
completion  of  the  canal  this  same  doctrine  was 
sustained,  and  from  that  time  to  this,  whoever  has 
been  at  the  head  of  the  financial  depai fluent,  whe- 
ther democrat  or  whig,  the  same  doctrine  has 
been  maintained. 

The  amendment  of  Mr.  MARVIN  was  negatived. 

The  7th  section  was  then  read,  as  follows : — 

^  7.  The  Legislature  shnll  not  sell,  lease,  or  otherwise 
dispose  of  any  of  the  canul*  of  the  State,  so  far  as  the  same 
an-  now  finished  and  navigable-,  but  they  shall  remain  the 
property  of  the  State  and  under  its  management,  forever. 

Mr.  PATTERSON  moved  to  strike  out  the 
words  "  so  far  as  the  same  are  now  finished  and 
navigable."  There  was  something  in  the  section, 
as  it  stood,  that  looked  like  a  permission  to  the 
legislature  to  sell  out  the  unfinished  canals.  He 
did  not  know  whether  such  was  the  object  or  not. 
But  he  would  provide  against  such  a  course.  He 
hoped  there  would  be  no  opposition  to  the  motion. 

Mr.  HOFFMAN  said  there  would  be.  The 
Black  River  canal  was  unfinished.  It  was  uncer- 
tain when  the  State  could  go  on  to  complete  it. 
If  the  inhabitants  of  that  region  should  find  it  for 
their  interest  to  complete  this  canal,  by  a  compa- 
ny or  otherwise,  he  would  not  tie  up  the  hands 
of  the  legislature  so  that  they  could  not  comply 
with  such  a  request.  So  too  with  the  Genesee 
Valley  Canal.  It  would  be  unjust  to  fix  such  a 
rule  in  the  Constitution.  So  far  as  the  canals 
were  finished  and  productive  of  revenue,  he  would 
guard  against  any  alienation  of  it  by  the  legisla- 
ture. He  objected  most,  decidedly  to  the  amend- 
ment. It  might  be  that  the  State  could  not  go  on 
with  these  works  for  six,  eight  or  ten  years.  The 
people  in  the  vicinity  might  have  the  ability  in  a 
year  or  two. 

Mr.  PATTERSON  now  saw  that  this  section 
looked  to  what  he  supposed — a  probable  sale  of 
these  canals. 

Mr.  HOFFMAN.     Not  at  all. 

Mr.  PATTERSON.  Yes,  sir  \  He  apprehen- 
ded if  this  clause  should  be  stricken  out,  and  the 
people  from  those  localities  came  here  and  asked 
for  a  local  tax  to  complete  the  canals,  the  legisla- 
ture could  comply.  But  this,  as  it  stood,  was  lit- 
tle else  than  a  proposal  to  sell  out  these  canals. 
On  that  point,  the  people  had  the  right  to  demand 
that  the  gentleman  and  this  Convention  should 
show  their  hands.  The  faith  of  the  state  had 
been  pledged  to  complete  these  canals.  The  peo- 
ple expected  that  pledge  to  be  fulfilled.  Proper- 
ty had  changed  hands  in  that  expectation.  Now 
if  you  profess  to  sell  out  these  canals,  say  so 
openly  and  not  in  this  indirect  way.  Let  the 
people  understand  that  these  canals  are  to  be  com- 
pleted at  some  time— if  not  soon,  yet  at  some  fu- 
ture day.  They  were  the  veins  which  led  to  the 


878 


main  artery.  And  will  you  say  to  the  people  of 
that  section  that  they  may  tax  themselves,  com- 
plete these  works,  which  will  bring  money  to  our 
own  pockets  ?  Such  was  the  section  as  it  stood, 
and  he  desired  it  should  be  so  understood. 

Mr.  WORDEN  took  the  floor,  but  the  hour  of 
adjournment  having  arrived,  he  gave  way,  and 
the  Convention  adjourned. 

WEDNESDAY,  (90th  day)  Sept.  16th. 
Prayer  by  Rev.  Dr.  POTTER. 

THE  FINANCES. 

The  Convention  went  into  committee  of  the 
whole  on  the  finance  report. 

After  waiting  a  little  while,  Mr.  HOFFMAN 
said  that  if  there  was  a  quorum  present,  he  would 
say  a  few  words  until  the  gentleman  from  Onta- 
rio (Mr  WORDEN)  arrived. 

The  question  was  on  Mr.  PATTERSON'S  motion 
to  amend  the  7th  section. 

Mr.  HOFFMAN  said  that  Mr.  P.'s  amend- 
ment went  to  render  inalienable  these  unfinished 
canals.  He  had  no  desire  to  tie  up  the  legisla- 
ture in  this  particular.  He  would  go  into  no  en- 
gagement direct  or  indirect  as  to  whether  these 
canals  were  to  be  finished  or  not.  The  Conven- 
tion could  not  tie  up  the  people  in  this  respect. 
It  was  never  attempted  in  this  government  but 
once  and  that  was  in  1838.  If  he  was  a  member 
of  the  legislature  and  the  people  of  the  district 
where  these  unfinished  canals  were  should  come 
to  the  legislature  and  with  any  tolerable  degree 
of  unanimity  asked  to  be  allowed  in  any  proper 
way  to  finish  these  lateral  canals,  he  would  con- 
sent that  they  should  do  so.  He  spoke  of  the 
Cayuga  and  Seneca  canal  as  compared  with  the 
Black  River  and  Genesee  Valley  canal,  and  with 
its  superior  advantages  it  had  never  paid  to  the 
state  its  original  cost,  its  expense  of  superintend- 
ence, repairs,  interest,  &c.  The  expense  of  this 
and  other  lateral  canals  he  said  could  be  found  in 
the  table  from  35  to  47  in  the  Comptroller's  re- 
port. 

Mr.  PATTERSON  desired  to  ask  the  gentle- 
man a  question,  which  he  had  no  doubt  the  gen- 
tleman could  answer  from  the  facts  before  him. 
He  wanted  to  know  if  the  line  of  the  Erie  canal 
between  Utica  and  Albany,  if  it  should  be  credit- 
ed only  with  the  produce  carried  on  it,  which 
was  brought  to  it  from  all  the  points  between  here 
and  Utica,  and  the  merchandize  transported  to  all 
the  points  between  Albany  and  Utica — applying 
the  same  rule  which  had  been  by  the  Comptroller 
to  the  lateral  canals — whether  that  line  of  the  ca- 
nal had  ever  paid  the  expense  of  superintendence 
and  repairs  and  the  interest  on  its  cost,  or  whe- 
ther it  had  ever  paid  half  that  amount  ? 

Mr.  HOFFMAN  said  he  could  only  give  Con- 
jectural answers.  But  he  could  say  that  if  the 
Erie  canal  had  only  reached  as  far  as  Syracuse  or 
M»ntezuma,  it  would  have  been  far  more  profita- 
ble in  proportion  to  its  length.  He  alluded  to  the 
Cayuga  and  Seneca  canal  as  settling  the  question 
of  the  profitable  completion  of  the  Geneste  Val- 
ley canal.  In  1841,  he  had  written  out  his  views 
in  full,  as  to  the  contributions  of  produce  made 
to  the  Erie  canal  by  the  lateral  canals ;  these  lat- 
ter should  be  credited  for  what  they  produce,  de- 
ducting about  one-fourth  for  the  expense,  &c ;  so 
the  converse  was  true  that  the  Erie  canal  should 


be  credited  for  the  produce  it  brings  to  the  lateral 
canals.  By  and  by  it  would  be  made  a  question 
whether  all  public  institutions  should  be  made  a 
charge  on  the  right  of  way.  He  stood  there  to 
oppose  any  such  doctrine.  He  would  not  allow 
the  entire  expenses  of  society  to  be  pensioned  on 
the  right  of  way.  He  wished  these  unfinished 
canals  to  be  left  in  the  hands  of  the  legislature — 
he  would  not  have  them  tied  up,  nor  would  he 
have  the  convention  committed  on  this  subject  in 
any  way  He  entered  his  protest  against  all  these 
debtor  systems. 

Mr.  WORDEN  was  in  his  seat. 

Mr.  HOFFMAN  said  that  seeing  the  Hon.  gen- 
tleman from  Ontario  in  his  seat,  he  would  say  no 
more  at  present. 

Mr.  PATTERSON  having  said  that  Mr.  HOFF- 
MAN misunderstood  his  (Mr.  P:'s)  question, 

Mr.  HOFFMAN  insisted  that  he  had  not.  The 
question  could  only  receive  a  conjectural  answer. 

Mr  WORDEN  said  that  he  could  show  Mr. 
HOFFMAN  very  easily  how  this  question  could  ba 
answered. 

Mr.  HOFFMAN:  Very  well;  then  you  can 
answer  it  yourself  when  you  get  the  floor. 

Mr.  WORDEN  (having  the  floor  from  yesterday) 
then  rose  and  spoke  at  lengthen  opposition  to  the 
report  of  the  committee. 

[His  remarks,  at  length,  will  be  found  at  the 
close  of  the  volume,  succeeding  those  of  Mr. 
HOFFMAN.] 

Mr.  MARVIN  was  surprised  at  this  section,  es- 
pecially when  it  was  attached  to  such  a  rep'ort. — 
If  these  canals  were  so  miserably  poor,  and  were 
running  thestate  into  debt  all  the  time,  and  some- 
body should  be  foolish  enough  to  take  them  off  our 
hands,  reimbursing  us  for  every  dollar  we  had  ex- 
pended, and  several  millions  of  dollars  over,  why 
should  these  gentlemen, who  appeared  lobe  troubled 
with  the  nightmare  on  the  subject,  object  to  allow 
them  to  do  so,  and  relieve  us  from  all  these  appre. 
hensions  .•'  Why,  men  could  be  found  who  would 
do  this,  and  give  abundant  security  to  pay  every 
dollar  of  outstanding  stock  and  every  possible  lia- 
bility, and  take  the  work.  The  stockholders  will 
do  it,  and  throw  you  in  a  few  millions  surplus,  and 
obligate  themselves  to  complete  the  enlargement 
and  the  unfinished  canals.  Mr.  M.  replied  to  Ihe 
objection  urged  by  Mr.  HOFFMAN  to  the  plans  pro- 
posed, contending  that  it  was  utterly  unsound. — 
But  it  it  was  true,  and  we  could  sell  the  canals 
to-morrow  and  pay  off  all  the  debt,  and  we  should 
save  many  millions  in  the  shape  of  interest,  now, 
he  would  submit,  whether  such  an  argument  was 
a  legitimate  one  to  address  to  a  deliberative  Con- 
vention? He  examined  the  rival  projects,  con- 
tending that  the  compromise  suggested  by  Mr. 
WORDEN  was  one  that  the  extremes  in  the  Con- 
vention ought  to  harmonize  upon.  He  went  on  to 
show  the  beneficial  operation  of  that  plan  as  con- 
trasted with  that  submitted  by  the  standing  com- 
mittee. He  also  spoke  at  length  of  the  great  in. 
creasing  trade  of  the  West,  which  would  seek  a 
market  by  way  of  the  Erie  Canal. 

Mr.  ALLEN  denied  that  the  New  York  dele- 
gation had  come  forward  here  as  a  body  to  sus- 
tain the  proposition  of  Mr.  HOFFMAN.  There 
had  been  no  consultation  among  them  so  far  as  he 
knew  on  the  subject.  They  acted  he  believed 
from  their  own  impressions  of  the  propriety  or 


879 


impropriety  of  a  measure.     Gentlemen  here   had 

undertaken  to  instruct  them  as  to  their  duties,  but 

he  believed  the  delegation   from   the   city  knew 

,\hat  the  interests  of  New  York  were. 

The  question  being  taken  on  the  motion  of  Mr. 
BROWN  to  strike  out  the  7th  section,  it  was  re- 
jected. 

The  article  having  been  gone  through  with,  the 
question  was  on  rising  and  reporting  it  to  the 
house. 

After  some  conversation  as  to  the  course  to  be 
pursued, 

Mr.  HARRISON  said  that  before  the  article 
was  laid  aside,  he  desired  to  offer  an  amendment. 
He  wished  to  restrict  the  legislature  from  authoriz- 
ing any  canal  or  rail  road  at  the  expense  of  the  state, 
until  the  present  canal  debt  should  be  extinguish- 
ed. Mr.  H.  said  that  the  people  of  his  county  had 
often  complained  of  the  sacrifices  they  had  been 
obliged  to  make  to  the  canal  policy,  and  that 
they  had  been  called  upon  to  pay  it.  The  debt 
he  considered,  had  been  incurred  in  consequence 
of  a  departure  from  the  original  intentions  of  the 
projectors  of  the  Canal.  His  section  of  the  State 
us  was  known  was  originally  opposed  to  the  con- 
struction of  the  Erie  and  Charnplain  canals,  but 
upon  its  being  demonstrated  that  the  project  was 
feasible,  they  yielded  their  assent  to  it.  But  they 
did  not  suppose  that  these  lateral  canals  were  to 
follow,  and  they  complained  that  the  greater  por 
tion  of  the  debt  had  arisen  from  the  construction 
of  these  canals.  Their  property  had  depreciated 
from  1817  down  to  1830  or  '35;  indeed  until  the 
overflow  of  the  population  of  New  York  began  to 
affect  the  neighboring  counties.  They  thought 
no  reflections  should  be  cast  upon  them  for  com- 
plaining of  taxation.  They  did  protest  against 
being  taxed  either  for  this  debt,  or  for  carrying 
out  this  canal  policy.  He  proposed  there' ore  to 
amend  by  adding  at  the  end  of  this  section,  as 
follows: — 

"But  the  legislature  shall  have  no  power  to  authorize 
hereafter,  any  canal  or  railway  to  be  constructed  at  the 
expense  of  the  State,  until  the  present  canal  debt  is  fully 
liquidated  and  paid." 

Mr.  RICHMOND  went  halfway  with  the  gen- 
tleman's amendment.  He  would  willingly  pro- 
hibit the  legislature  from  authorizing  the  con- 
struction of  any  railroad  by  the  state,  until  the 
debt  was  paid.  On  the  other  question  he  hac 
not  fully  determined.  It  was  certain,  however 
that  it  was  the  worst  kind  of  policy  for  the  Stat( 
to  go  into  the  construction  of  railroads  as  stat( 
works,  and  he  thought  the  time  had  gone  by  when 
any  danger  was  to  be  apprehended  from  that. — 
But  in  former  times  we  came  very  near  to  doing 
such  a  thing,  and  he  remembered  that  a  bill  fo 
the  construction  of  the  Erie  railroad  by  the  State 
defeated  in  the  Assembly  of  1841,  by  a  verj 
small  majority  indeed,  and  that  no  little  odium 
Attached  to  him  for  voting  against  it.  Bu 
time  had  shown  him  to  have  been  right.  He  ob 
jected  to  the  blending  of  the  severat  funds  of  the 
State  into  one,  as  he  understood  the  gentleman 
from  Allegany  (Mr.  ANGEL,)  to  desire.  If  an) 
gentleman  wished  to  see  our  canal  system  ; 
ted,  he  could  tell  him  that  it  never  would  be  don 
by  such  a  course  as  that.  Perhaps  the  gentlemai 
desired  to  see  the  School  fund  incorporated  wit! 
the  rest. 


Mr.  ANGEL  wanted  only  one  fund  to  support 
overnment.  He  would  leave  all  other  funds  to 
tand  as  they  are. 

Mr.  RICHMOND  believed  he  understood  the 
;entleman.  It  was  better  by  far,  that  each  fund 
hould  be  kept  separate  and  sacredly  appropriated 
or  specific  objects.  When  this  was  so,  they  could , 
ot  so  easily  be  got  at  by  the  sharks  who  always 
lang  about  the  legislature,  seeking  to  get  hold  of 
he  public  money.  Mr.  R.  went  on  to  oppose  the 
reposition  of  Mr.  BOUCK,  setting  apart  a  portion 
>f  the  surplus  canal  revenues  for  the  benefit  of  the 
common  school  fund.  He  was  opposed,  to  sad- 
Iling  the  expenses  of  education  upon  the  public 
vorks.  Mr.  R.  also  insisted  that  the  salt  duty 
>elonged  to  the  canals — was  a  local  tax  raised  for 
heir  benefit — and  submitted  to  only  for  that  pur- 
>ose.  He  also  opposed  throwing  the  rail  road 
debt  incurred  in  all  sections  of  the  state  upon  the 
canals.  It  would  be  in  effect  he  urged,  bringing  an 
ndirect  tax  on  the  west  to  pay  ofl'a  debt  in  which 
every  section  of  the  State  had  a  share. 

Mr.  STOW  here  obtained  the  floor  and  moved 
hat  the  committee  rise.  Agreed  to. 

A  communication  from  the  Secretary  of  State, 
nviting  the  Convention  to  attend  the  closing  ex- 
ercise of  the  State  Normal  school,  was  read. 

The  Convention  then  took  a  recess. 


AFTERNOON  SESSION. 

At   quarter  to  4  o'clock,    there  were  only  53 
:>re*ent.     A  quorum  was  at  length  obtained. 
Mr.  HARRISON'S  amendment  was  rejected.     ' 
Mr.  STOW  (having    the  floor  from    this  morn- 
ng,)  rose  and  addressed  the  committee  at    length 
n  opposition   to  the  report  of  the  committee   on 
finance. 

The  following  is  the  amendment  offered  by  Mr. 
STOW  ;  although  it  was  not  in  order,  at  that 
time,  it  was  read  : 

1  After  paying  the  expenses  of  collection,  superinten- 
dence and  ordinary  repairs,  $1,500,000  ot'  the  revenues  of 
the  State  canals,  shall  in  each  fiscal  year,  arid  at  that  rate 
fora  shorter  period,  commencing  on  the  first  day  of  June, 
1846,  be  set  apart  as  a  sinking  fund  to  pay  the  interest  and 
redeem  the  principal  of  the  state  debt  until  the  first  day 
ol  July,  1856,  after  which  $-2,000,000  of  said  revenues  shall 
continue  to  be  applied  or  set  apart  annually  until  the 
same  shall  be  wholly  paid;  and  the  principal  and  income 
of  the  said  sinking  fund  *hall  be  sacredly  applied  to  that 
purpose. 

LA.ND  TENURES. 

Mr.  HARRIS,  from  committee  No.  18,  submit- 
ted the  following  report:  — 

ARTICLE  — . 

<}1.  All  feudal  tenures  of  any  description,  with  all  their 
incidents,  are  abolished. 

fy2  Any  lease  or  grant  of  agricultural  land  for  a  longer 
period  than  ten  years,  herealter  made,  in  which  shall  be 
reserved  any  rent  or  service  of  any  kind,  shall  be  void. 

^3.  All  covenants  or  conditions  in  any  grant  of  land 
whereby  the  right  of  'he  grantee  to  alien  is  in  any  manner 
restrained,  and  all  lines,  quarter  sal(;s  and  other  charts 
upon  alienation,  reserved  in  any  grant  of  land  herealter  to 
be  made,  shall  be  void. 

The  report  was  referred,  and  the  Convention 
adjourned  to  S  1-2  o'clock  to-morrow  morning. 

THURSDAY,  (91**  day}  Sept.  17. 

Prayer  by  the  Rev.  Dr.  POTTER. 

At  five  minutes  past  the  usual  hour  of  meeting, 
there  were  only  53  present.  A  lony  pause  ensued, 
but  no  quorum  was  obtained  till  past  9. 


880 


Tiie  Convention,  however,  resolved  into  a  com- 
mittee of  the  whole,  on  the  report  of  committee 
No.  3  on 

THE  CANALS,  FINANCES,  &c. 

Mr.  W.  TAYLOR  resumed  the  Chair. 

The  pending  question  was  on  the  amendment 
offered  by  Mr.  STOW,  settinjj  aside  $1  000,000 
of  the  canal  revenues  annually  for  10  years,  as  a 
sinking  fund  (or  the  extinguishment  of  the  State 
debt,  and  $2,000,000  annually  thereafter  till  the 
same  is  enfirelv  paid. 

Mr.  HOFFMAN  said  that  he  regretted  to  see  so 
few  present.  If  any  body  else  wanted  the  floor, 
he  would  not  say  anything;  more  at  this  time.  It 
not,  he  would  reply  to  some  of  the  speeches  that 
had  been  made.  He  earnestly  desired  to  see  this 
State,  by  its  peoule,  become  the  merchant,  the 
banker,  and  the  carrier  of  this  Union.  And  so 
far  as  such  a  desire  is  calculated  to  benefit  the 
people  of  the  whole  State,  and  not  to  impair  its 
credit,  he  would  adhere  to  it.  In  1835,  he  had 
th;s  de-are,  and  so  desired  to  see  the  Erie  canal 
enlarged,  as  in  the  best  judgment  of  the  Legislature 
they  rnisjitt  think  proper;  but  not  that  a  d  bt 
should  be  inclined  to  do  i! ;  and  in  this  he  agreed 
with  the  canal  board.  So  in  1S41,  he  labored  to 
procure,  a  sinking  fund,  to  meet  (he  debt  which 
had  been  shadowed  forth  by  Mr  Haggles  in 
183S.  It  was  then  that  we  were  in  the  deliri. 
um  fremens  of  our  fiscal  debauch.  He  then  lent 
himself  as  a  feeble  instrument  in  the  legislature 
tosavethe  State  fVom  bankruptcy.  Mr.  WORDEN 
and  he  (Mr.  H.)  agreed  in  1841  to  limit  the  ap- 
propriations for  these  canals.  But  he,  (Mr.  H.) 
asked  for  still  further  limitation  to  that  work  of 
destruction,  that  ruinous  debt.  He  asked  that  the 
sinking  fund  held  out  in  1838  in  figures,  and  ask- 
ed for  by  the  committees  in  1840  and  '41 — should 
be  complied  with  in  truth  and  in  fact.  He  was 
sorry  that  Mr.  WORSEN  would  not  go  with  him 
as  fur  as  he  wanted,  in  this  very  important  mat- 
ter. But  he  did  not.  He  wished  the  payment  to 
go  on,  and  to  rely  on  the  surplusses,  not  for  pay- 
ment, but  for  whatever  the  public  interest  may 
require  for  improvement  of  this  canal.  He  had 
persisted  in  this  just  policy  for  some  years  and  he 
would  not  now  abandon  it.  Truth  requited  no 
subterfuge  ;  let  a  man  think  freely  and  fearlessly 
of  anything  human,  and  let  him  utter  freely  and 
fearlessly  what  he  thinks,  and  he  then  possesses 
the  power  of  leading  and  of  commanding  the  res- 
pect of  his  fellow  men.  As  to  the  arguments  ad- 
duced about  the  Salt  Tax,  it  was  notorious  that 
the  Salt  Taxes  and  Auction  Taxes  did  not  pro- 
ceed from  the  canals  ;  and  therefore  the  canals 
should  pay  what  has  been  advanced  to  them  from 
any  source  not  produced  by  themselves.  The  salt 
and  auction  tax  are  derived  from  sources  indepen- 
dent of  themselves.  The  canals  do  not  produce 
them.  As  to  compounding  interest  yearly,  he 
would  make  this  remark  :  a  creditor  may  sue  year- 
ly for  his  money,  but  a  State  cannot  thus  sue  ; 
but  must  w..jt  till  the  expiration  of  the  loan  ;  and 
the  comptroller  had  only  charged  a  proper  amount 
of  interest  for  the  money.  Again  the  State  cannot 
pay  the  creditor  when  it  pleases  even  if  it  has 
the  money.  The  Comptroller  had  the  rule  of  com- 
putation prescribed  to  him  by  the  committee 
and  the  Convention.  You  have  the  tables  of 
the  interest  of  the  debt  at  simple  interest  and 


by  compound  interest ;  you  can  take  the  choice 
of  the  two.  They  all  could  see  that  there  are 
three  estimates  spread  before  them.  Take  the 
highest  estimate  and  you  will  see  that  direct  tax 
es  must  be  resorted  to ;  and  this  would  be  con- 
trary  to  all  former  promises  and  pledges  to  all 
your  creditors.  It  would  lie  a  re-galvanized  copy 
of  the  argument  that  led  to  creation  of  the  debt, 
as  was  Mr.  STOW'S  argument ;  except  that  half 
of  the  Niagara  cataract  of  debt  and  taxation  by 
which  the  Gov.  of  Gibraltar  is  made  to  read  a  les- 
son of  political  economy  to  this  house.  It- is  the 
same  in  spirit  as  that  policy  of  '37— '38,  that  led 
this  State  on  in  '4 1  to  the  verge  of  social  bankrupt- 
cy It  is  seeking  for  a  loan  in  disguise — though  it  is 
not  honest  and  bold  enough  to  come  out  and  say 
so.  It  amounts  to  this,  if  it  really  means  what 
it  says.  He  (Mr.  H.)  denied  having  said  any 
thing  about  the  culmination  of  western  produce. 
And  he  did  not  say  that  any  boatmen  had  told 
him  they  disregarded  this  rule  of  easiest  trac- 
tion that  had  been  alluded  to.  The  rule  of  easi- 
est traction  was  understood — but  all  this  noise 
about  the  greatest  and  easiest  traction,  has  very 
little  to  do  with  the  practical  question  involved 
in  these  canals  and  the  report  of  the  committee. 
Narrow,  as  it  is  known  that  the  canals  are,  they 
are  able  now  to  admit  boats  of  80  tons.  And  if 
you  deepen  the  water  but  one  foot,  you  can  add 
to  the  tonnage,  and  add  several  feet  to  the 
length  of  the  boat. 

The  gentleman  from  Erie,  (Mr.  STOW,)  had 
not  acted  with  his  usual  candor  about  this.  He 
had  passed  over  the  facts  of  the  case,  brought  in 
again  for  argument  the  Niagara  Cataract  of  debt 
and'of  spending  money,  rushed  across  the  Atlan- 
tic to  draw  illustrations  from  the  imprisoning 
rock  of  Gibraltar,  and  brought  us  back  by  the 
aid  of  a  British  governor  to  the  system  of  how  to 
create  a  debt  in  order  to  get  capital  to  carry  on 
the  public  works.  If  that  gentleman  (Mr.  STOW) 
had  wished  to  show  how  to  cripple,  and  bear 
down  labor  to  the  dust,  he  could  go  to  no  better 
place  than  the  British  government,  and  to  that 
Gibraltar,  where  the  commander  holds  a  place 
probably  next  in  tyranny  and  oppression  to  that 
held  by  the  infamous  Sir  Hudson  Lowe,  on  the 
imprisoning  rock  of  St.  Helena.  The  taxes  are 
the  iron  heel  that  presses  down  the  heart  of 
labor  all  over  the  world. 

If  we  want  a  great  charnel  house  of  pauperism, 
go  on  with  these  debts  and  taxation.  Go  on,  and 
borrow  money  and  squander  it  all  over  the  state 
again.  They  ought  not  to  tie  up  the  hands  of  the  ca- 
rial  board  against  making  a  reduction  of  tolls  on 
the  canals,  when  such  a  reduction  must  become 
necessary,  and  would  become  necessary  in  a  very 
few  years.  The  canals  might  go  on  increasing 
for  eight  or  ten  years  in  the  ratio  of  the  last  ; — 
but  after  that,  the  rail  roads — other  routes  of 
transportation  —  three  months  of  winter  — 
all  would  combine  to  make  the  revenues 
slacken  after  ten  years,  and  render  it  necessary  to 
reduce  the  rates  of  tolls  in  fii'teen  years  from  the 
present  time  at  the  very  farthest.  He  was  not  sa- 
tisfied that  rail  roads  would  cut  down  the  revenue 
of  the  canals  as  some  gentlemen  said  they  would. 
They  would  do  it — for  when  railroad  stockholders 
could  riot  make  eight  or  six  per  cent  on  their  ca- 
pital, they  would  learn  how  to  make  one  or  two 


881 


per  cent.  He  had  placed  his  calculations  on  the 
ground  that  it  might  be  eight  or  ten,  or  twelve 
years  before  this  took  place.  It  might  be  longer 
or  shorter.  The  debt  makes  the  tolls  heavy 
— and  it  is  the  debt  that  cripples  the  canal 
more  than  the  mud  that  was  in  it  in  1841. — 
Mr.  H.  went  on  to  speak  of  the  surplusses  that 
would  accrue  in  each  succeeding  year,  (commenc- 
ing with  a  common  difference  of  $40,000,  or  say 
in  round  numbers  $50,000;  two  times  $150,000 
next  year  and  so  on,)  and  repeated  his  former 
statement  relative  to  these  surplusses  being  suffi- 
cient to  double  the  line  of  locks  to  Syracuse —raise 
the  water  to  five  feer,  enlarge  the  capacity  of  the 
chamber,  &c.  He  instanced  the  fact  that  30,000 
boats  had  passed  the  old  lock  at  Schenectady, 
(Schemerhorn's — not  Alexander's,)  in  a  season, 
and  at  Lockport,  only  about  half  that  number. — 
And  whilst  he  deprecated  the  destruction  of  the 
old  line  of  combined  double  locks  at  Lockport,  as 
being  a  wanton,  and  unnecessary  destruction  of 
the  public  works;  yet  he  considered  that  this 
great  cry  about  the  detention  of  boats  at  Lockport 
was  all  humbug.  He  thought  the  groceries  and 
groggeries  there  detained  the  boats  more  than  any 
thing  else.  He  repeated  that  the  surplusses  in 
10  years  would  enable  the  Canal  Commissioners  to 
double  the  locks  from  Albany  to  Syracuse,  deep- 
en the  water  to  five  feet,  &c.,  &c. ;  and  thus,  for 
that  distance,  to  triple  the  capacity  of  the  canal. 
He  alluded  to  the  proceeds  of  canal  tolls 
for  1846;  that  in  the  first  year  by  his  plan, 
there  would  be,  say  in  round  numbers,  $60,- 
000  of  surplus  ;  the  second  year  $160,000  r 
the  third  year  #240,000,  and  so  on.  By  the  safest 
estimate  that  ci:uld  be  made,  they  could  get  $4,- 
500,000  in  ?0yehis;  or  if  yon  take  the  surplus  for 
the  first  year  at  $100,000,  then  it  would  be 
$1,000,000  at  the  end  of  10  years;  and  following 
on  in  the  calculations  he  had  before  brought 
forward  for  them,  the  sum  of  the  surpluses 
must  exceed  $5,500,000,  ot  which  $2,500,000 
was  to  be  laid  out  on  the  canal  under  his  plan  — 
Now  he  would  ask,  what  will  this  $2,500,000  do 
with  a  proper  expenditure  ?  Enable  you  to, reach 
Syracuse  with  all  the  facility  you  want — enable 
you  to  construct  a  line  of  enlarged  locks  all  the 
way  from  Albany  to  Buffalo.  You  may  lengthen 
the  old  locks  to  any  length  for  $3,000  each — they 
cost  8  or  $10,000  originally.  You  may  raise  the 
water  from  the  dock  at  Albany — to  5  full  feet — 
and  have  it  3  feet  wider  in  the  canal;  that  is  what 
this  2&  millions  will  do!  Who  desires  more  ? — 
You  can  with  this  2i  millions  give  to  the  Erie 
canal  triple  its  present  capacity ;  and  all  this 
labor  will  come  directly  in  aid  of  any  future  en- 
largement of  the  canal.  They  could  (he  ob- 
served) have  their  boats  lengthened  safely  so  as 
to  carry  120  tons ;  and  even  have  wider  boats.  A 
boat  made  externally  on  the  plan  of  the  present 
line  boats,  of  17  feet  beam,  95  feet  long,  drawing 
3  feet  3  inches  water,  could  be  made  to  carry  J  so 
tons ;  and  if  this  can  be  done  with  the  present 
means,  is  there  (he  would  ask)  any  danger 
to  apprehend  that  the  trade  of  the  great  West 
would  go  down  through  Canada,  before  the 
canal  can  earn  surplus  enough  to  enlarge  it 
to  any  extent  that  might  be  desirable.  It 
business  comes  in  full  as  it  is  expected,^  and 
you  triple  the  capacity  of  the  canal,  then  at  the 


present  rates  your  tolls  will  be  $8,000,000.  But 
be  (Mr.  H.)  supposed  that  in  fifteen  or  twenty 
years,  these  tolls  must  be  reduced  fifty  per  cent.; 
and  then  we  should  have  $4,000,000  of  tolls;  and 
the  surplusses  then  would  be  sufficient  to  enlarge 
the  Erie  canal  to  the  full  extent,  as  soon  as  want- 
ed, and  finish  the  Genesee  Valley  canal,  if  it  cost 
$3,000,000,  and  the  Black  River  canal,  even  if  it 
cost  $1,000,000.  He  thought  that  we  could  not 
finish  the  public  works  for  less  than  $15,000,000 
— others  thought  a  less  sum,  and  they  go  on  the 
plan  that  to  pay  a  debt  is  not  the  best  thing  a  man 
can  do  with  his  money.  The  great  west  will 
know  that  the  plan  of  the  committee  is  calculated 
to  secure  the  enlargement  of  this  great  canal  in 
such  a  manner  a?  they  want,  and  as  large  as  they 
want  it.  Now,  New  York  and  Brooklyn  are  large 
contributors  to  these  canals.  They  helped  to  build 
and  pay  for  them  It  is  of  importance  to  them  to 
see  these  tolls  reduced  ; — it  is  the  interest  of  com- 
merce and  agriculture  to  see  these  tolls  reduced — 
of  every  branch  of  industry,  except  those  who 
are  to  lay  out  the  money.  When  the  city  of  New 
York  sees  that  without  any  extraordinary  outlay 
the  capacity  of  the  canal  can  be  enlarged  one 
half,  and  by  a  proper  outlay  of  the  means  we 
have,  that  we  can  triple  its  capacity  in  ten  years, 
and  get  the  tolls  reduced  one  half,  and  then  get 
$4,000,000  of  tolls,  they  will  see  that  the  plan  of 
the  committee  is  safe,  honest,  and  secure.  The 
Convention  of  1821  was  a  paying  Convention.— 
They  provided  the  means  to  pay  the  Erie  and 
Champlain  canal  debt ;  and  he  begged  of  this  Con- 
vention to  follow  that  example.  Stamp  on  your 
Constitution  no  project  of  delay,  but  let  it  be 
marked  for  all  time  as  a  paying  Constitution.  If 
they  did  not,  he  should  regard  it  as  an  evidence 
that  they  did  not  intend  to  pay  at  all ! 

Mr.  KIRKLAND  said— Before  proceeding,  Mr. 
Chairman,  to  the  discussion  of  the  question  un- 
der consideration,  I  will  state  what  the  precise 
question  is.  The  committee  on  canals,  &c.,  in 
their  reported  plan  propose  that  out  of  the  nett 
revenues  of  the  State  canals,  the  sum  of  fifteen 
hundred  thousand  dollars  shall  annually  be  set 
apart  as  a  sinking  fund  to  pay  the  principal  and 
interest,  ot  the  canal  debt ;  that  out  of  said  reve- 
nues, the  further  annual  sum  of  $672,500  shall  be 
annually  paid  forever  into  the  treasury  for  the 
use  of  the  State,  in  liquidation  of  the  (alleged) 
State  claims  for  advances  to  the  canals  ;  that  out 
of  the  last  mentioned  sum,  five  hundred  thou- 
sand dollars  shall  annually  be  set  apart  as  a  sink- 
ing fund  to  pay  the  State  debt,  called  the  general 
fund  debt,  until  the  same  is  paid :  that  the  sur- 
plus of  the  said  net  revenues,  after  deducting  the 
aforesaid  sums  of  $1,500,000  and  $672,500,  (mak- 
ing an  aggregate  of  $2,172,500,)  shall  annually 
be  applied  to  the  improvement  of  the  Erie  canal, 
until  such  surplus  shall  amount  to  $2,500,000. 

The  gentleman  from  Erie  (Mr.  STOW)  has  pro- 
posed an  amendment,  providing  for  the  setting 
apart  out  of  the  net  revenues  of  the  canals  $1,- 
500,000  annually  for  ten  years  as  a  sinking  fund 
for  the  payment  of  the  whole  debt  of  the  State, 
(including  the  canal  and  general  fund  debts,)  and 
after  ten  years  for  setting  apart  $2,000,000  out  of 
those  revenues  annually  for  the  same  purpose,  till 
the  whole  debt  is  fully  paid.  The  plan  of  the 


85 


882 


committee  and  the  amendment  just  stated  show 
the  question  under  discussion. 

Our  proceedings  on  this  subject,  Mr.  Chairman, 
are  watched  with  intense  interest  by  vast  num- 
bers of  our  constituents,  indeed  by  all  who  are 
anxious  for  the  prosperity,  jealous  of  the  honor, 
regardful  of  the  character  of  the  State  of  New- 
York  ;  and  the  subject  is  one  which  well  justifies 
this  intensity  of  interest  The  question  now  to 
be  determined  is  no  more  nor  less  than  whether 
the  unfinished  public  works  of  this  state  shall, 
by  the  Constitution  be  sentenced  to  an  enduring 
suspension,  be  consigned  to  the  sleep  of  death. — 

•»-.         *      -t  •  •  -j      _  „        il ;±; _^*   AT 


of  "  debt  and  taxation."  In  the  sentiments  ex- 
pressed by  him  on  this  subject  I  entirely  concur. 
And  I  utterly  deny  for  myself  and  for  those  who 
with  me  on  this  occasion  advocate  the  proposed 
amendment,  all  charge  or  insinuation  that  we 
thereby  advocate  in  any  manner  or  to  the  slight- 
est extent  the  principle,  which  in  common  with 
that  gentleman  we  earnestly  reject  from  our  po- 
litical creed.  In  consonance  with  these  views,  I 
regard  it  as  a  duty  we  owe  to  the  people  of  this 
State  to  provide  for  the  certain  and  seasonable 
extinguishment  of  the  public  debt,  and  for  this 


For  disguise  it  as  you  may,  the  proposition  of  the 
committee  which  thus  takes  from  the  net  canal   vides, 
revenues  the  sum  of  $2,172,500,  a  sum  exceed- 1  strate. 


great    and    desirable     object,    the     amendment 
in    question    most    fully    and    effectually    pro- 
as   I   hope   clearly    to    able    to   demon- 
In  devismg    the   means  to  tfiect  this  ob- 


ing  any  net  revenue  they  have  ever  yet  until  the  ject,  we  must  of  couise   regard  our  existing  con- 
present  year  produced,  is  equivalent  to  a  propo-   ditioo  and  make  our  arrangements  accordingly;  we 


sition  so  to  cripple  and  limit  expenditure  on  the 
Erie  canal  as  practically  to  prevent  such 
provement  as  may  be  indispensable  to  enable  it 
to  maintain  its  present  claim  to  the  title  of  "  the 
great  thoroughfare"  between  the  vast  West  and 
the  Atlantic;  and  as  to  the  unfinished  canals,  it 
is  tantamount  to  declaring  that  they  shall  remain 
as  they  are  for  a  long  term  of  years  at  least ;  a 
term  so  long  that  its  expiration  will  find  them  in 
a  condition  little  if  any  better  than  if  the  first  dol 
lar  had  never  been  expended  upon  them.  Propo- 
sitions presenting  results  like  these  may  well  ex- 
cite the  deepest  and  most  anxious  interest  here 
and  elsewhere.  I  am  glad,  sir,  that  the  amend- 
ment has  been  offered,  for  it  seems  to  me  to  fur- 
nish to  us  a  safe  "  middle  way,"  a  course  which, 
while  it  will  enable  us  on  the  one  side  speedily  to 
extinguish  the  public  debt  without  additional 
public  burdens,  will  on  the  other  conduct  us  safe 
ly,  economically  and  with  reasonable  expedition 
to  the  required  improvement  of  our  "  grand"  ca- 
nal, and  to  the  rescuing  the  others  from  the  dila- 
pidation and  ruin  now  impending  over  them. 

I  desire  now,  Mr.  Chairman,  to  express  in 
terms  the  most  emphatic  my  abhorrence  of  pub- 
lic debt;  my  utter  dissent  from,  and  rejection  of 
the  doctrine  that  such  a  debt  is  a  public  bles- 
sing. The  citizen  of  New-York  who  has  wit- 
nessed the  condition  in  which  many  of  our  sister 
States  are  now  placed,  the  intolerable  burdens 
devolved  on  them  by  the  masses  of  debt  under 
which  they  labor,  heavy  taxation,  public  faith 
violated,  the  fatal  doctrine  of  repudiation  become 
familiar,  character  injured  at  home  and  ruined 
abroad,  nonaof  us,  I  say,  who  have  witnessed 
all  this,  can  for  a  moment  advocate  the  doctrine 
that  a  public  debt  is  not  an  evil,  that  should  ne- 
ver be  imposed  on  our  people  without  great  and 
powerful  reasons,  and  when  imposed,  should  be 
removed  as  speedily  as  the  exigencies  of  our  situ- 
ation will  allow.  Such  a  debt  may  be  useful  in 
the  monarchies  of  Europe,  and  it  is  said  that  the 
enormous  debt  of  Great  Britain,  held  as  it  is  by 
all  classes  of  her  subjects,  is  one  of  the  strongest 
ties  that  bind  that  people  to  their  government — 
but  in  a  republic  no  such  ligament  is  wanted  to 
attach  the  citizen  to  its  institutions,  and  its  ex- 
istence is  to  be  regarded  only  in  the  light  of  a 
burden,  to  be  imposed  as  seldom  and  to  be  re- 
moved as  speedily  as  possible.  The  gentleman 
from  Herkimer  (Mr.  HOFFMAN)  has  often  during 
this  debate,  painted  in  glowing  colors  the  evils 


are  to  be  governed  in  this  as  in  all  other  matters 
by  facts  as  they  are— not  as  we  wish  they  might 
have  been.  Had  we  no  Erie  canal  in  the  condu 
tion  in  which  that  work  is,  and  no  other  canals 
in  an  incomplete  and  partly  finished  state,  and 
had  we  in  that  event  the  same  debt  to  pay  and  the 
same  revenues  to  pay  it.  with  which  wen;  w  have, 
our  line  ol  duty  and  action  could  not  be  mistaken. 
An  immediate  application  ot  those  revenues  to 
the  payment  of  that  debt  would  be  demanded  by 
the  principles  above  stated,  piineiples  entertain- 
ed  alike  by  the  advocates  ut  the  plan  of  the  com- 
mittee, and  by  the  advocates  '  of  the  proposed 
amendment.  But,  sir,  this  is  not  our  condition — 
we  find  ouiselves  with  out  "great  woik"  requir- 
ing material  improvement,  and  with  other  impor- 
tant works,  on  which  very  l^rge  sums  have  been 
t-xpended;m  an  incomplete  and  useless  state,  and 
demanding,  by  every  consideration  of  duly  to  the 
commonwealth  and  to  tens  ol  thousands  ot  indivi- 
dual citizens,  their  resumption  and  completion, 
if  that  can  be  done  consistently  with  the  higher 
duty  .of  providing  for  the  certain  extinguishment 
of  the  public  debt  within  a  reasonable  period  In 
my  opinion,  our  financial  condition,  our  sources 
and  means  of  revenue  enable  us  safely  and  surely 
to  accomplish  all  these  objects;  and  by  the  adop- 
tion of  the  proposed  amendment  they  will  be  el- 
fected  in  such  manner  as  to  preserve  inviolate  the 
public  faith,  and  10  impose  no  additional  burdens 
whatever  on  Ihe  people  ot  the  stute. 

There  has  already  been  expended  on  the  Erie 
canal  enlargement  upwards  of  {$'13,000,000  ;  much 
of  which,  in  consequence  of  the  suspension  of 
that  work,  is  of  necessity  producing  no  benefit  ; 
it  is  literally  a  "dead"  investment.  But  of  this- 
suspension  I  make  no  complaint  and  it  is  unneces- 
sary further  to  speak.  But  it  will  be  conceded  on 
all  hands  that  material  improvements  in  that  ca- 
nal and  additions  to  its  present  capacity  are  in- 
dispensable ;  without  them  it  will  be  in  vain  to 
expect,  that  transportation  can  be  so  cheapened 
a~hd  facilitated  as  to  enable  us  successfully  to 
counteract  the  sharp  and  increasing  competition 
on  the  one  hand  of  the  southern  and  southwestern 
natural  and  artificial  channels  of  communication, 
and  on  the  other  of  the  lakes,  rivers  and  canals 
of  Canada,  for  the  magnificent  prize  of  the  trade 
of  the  West.  What  the  expense  of  these  requi- 
site improvements  and  additions  will  be,  a^id  how 
soon  it  will  be  indispensable  to  furnish  them,  it  is 
not  important,  perhaps  it  is  not  practicable  to 


883 


determine;  the  gentleman  from  Herkimer  alleges 
that  every  necessary  expenditure  to  produce  all 
the  beneiits,  ever  contemplated  from  the  most  ex- 
tensive enlargement  that  has  been  at  any  time 
•sted,  would  not  exceed  $2,500,- 
1  i  n\v  nearly  correct  he  may  be  in  this  state- 
ment, it  is  not  material  now  to  enquire;  it  is 
sufficient  to  say  that  the  plan  proposed  by  him 
affords  no  certainty  of  furnishing  at  the  proper  and 
suitable  times  the  required  means,  or  any  means 
availably  calculated  to  answer  a  call,  on  the  com- 
pliance with  which  the  momentuous  question 
may  depend,  whether  the  vast  trade  above  allud- 
>all  be  retained  in,  and  brought  to  the  Erie 
canal,  and  thus  be  made  to  keep  up  our  rich  rev- 
enues and  to  contribute  enduringly  to  the  wealth 
and  prosperity  of  the  state,  and  to  the  pre-emi- 
nence of  our  commercial  metropolis,  or  whether, 
with  all  its  varied  and  immense  benefits,  it  shall 
be  borne  far  off  to  tb.e  South  and  to  the  North, 
under  the  influence  of  that  energetic,  skillfully 
directed  and  ceaseless  competition  so  forcibly 
described  yesterday  by  the  gentleman  from  Her- 
kimer. It  seems  to  me,  sir,  under  these  circum- 
stances that  it  is  the  dictate  of  prudence,  nay  o 
self-preservation,  not  to  tie  up,  and  perchance  to 
effectually  prohibit  the  use  of,  the  means  anc 
revenues,  which  our  vital  interests  may  absolute 
ly  require. 

The  plan  of  the  standing  committee,  as  has 
been  seen,  absolutely  and  effectually  appropri- 
ates exclusively  to  other  uses  the  net  revenues  o 
the  canal  to  an  amount  exceeding  the  sum  they 
have  reached  in  any  year  prior  to  the  present 
and  tor  all  this  we  are  compensated  and  consolec 
by  the  allegation  of  the  chairman  of  the  commit 
tee,  that  the  aggregate  increase  of  those  revenues 
in  a  period  of  ten  years  will  be  $2,500,000.  Bu 
we  are  not  assured  by  the  gentleman  that  that  in 
crease,  assuming  it  to  occur,  will  happen  at  time: 
and  periods,  when  our  necessities  may  imperious 
ly  demand  it.  It  is  the  extreme  of  rashness,  as  i 
seems  to  me,  thus  to  jeopard  and  peril  interest, 
of  such  magnitude ;  and  this  too,  sir,  when  n 
necessity  demands  it,  and  no  argument  deserving 
the  credit  of  even  plausibility  has  been  or  can  b 
urged  in  its  favor. 

Considerations  of  great  if  not  of  equal  force  ap 
ply  to  the  unfinished  works,  the  Genesee  Valle 
and  the  Black  River  canals.    On  the  uncomplete 
part  of  the  former,   the   sum   of  $1,802,000   ha 
been  expended ;  and   to   complete  it,  as  appear 
from  the  report  of  the  canal  committee  of  the  As 
sembly  in    1814,   the  sum   of  $1,322,000   is  re- 
quired, though  in  the  same  report  it  is  stated  that 
responsible  contractors   have   offered   to  do   the 
whole  remaining  work  for  one  million  of  dollars. 
On  the  Black  River  canal,  there  has  already  been 
expended  the  sum  of  $1,675,357;  and   is  stated 
in  the  canal  commissioners  report  of  1843,   the 
further  sum  of  only  $436,000  will  fully  complete 
the  work  including  the  Erie  canal  feeder,  an  aux- 
iliary to  the  latter  canal,  which  there   is  the  best 
reason  to  believe  will,  at  no   remote  period,   be 
found  indispensable.     The   question   is   not  now 
whether  these  two  canals   shall   be  constructed ; 
were  that  the  question,   it   would  doubtless   re- 
ceive from   this   convention   an  unanimous  res- 
ponse in  the  negative ;  but  it  is,  sir,  whether  we 
shall  expend  the  sum  of  $1,322,000  to  complete 


tie  one,  and  $436,000  to   complete  the  other;  or 
whether  it  is  worth  while  for  the  State  (were  the 
uestion  now  an  original  one)to  obtain  the  Genesee 
/"alley  canal  for  $l,322,000,and  the  Black  River  ca- 
lal  and  Erie  canal  feeder  for  $436,000.     This  being 
he  true  state  of  the  case,  and  the  real  point  pre- 
euted    and  the   requisite  funds   being  obtainable 
rom  the  canal  revenues,  without  creating  a   dol- 
ar  of  debt  or  a  shilling  of  taxation,  I  cannot  hes- 
tale  to  give  an  affirmative  answer  to  the  question, 
tad  to  pronounce  it  as  rny  deliberate  opinion  that, 
:onsidered  in  a  financial  and  politico-economical 
new  merely,  these  works  should  be  resumed  and 
completed  with  such  reasonable  diligence  as  the 
urid*   applicable  to  that  purpose  will  allow.     On 
,his  branch  of  the  case  it  becomes  a  relevant  mai. 
er  of  inquiry,   whether  the   revenues  derivable 
:rorn  these  works  would   pay  the  expenses  of  re- 
repairs  and  collection,  and  the  interest  on  the  sum 
now  required  for  their  completion;  for   it  they 
would    not  do  this,  it,  might    with  plausibility   be 
urged  that  they  should  be  abandoned  lorevei,"tho' 
their  completion  could  be  effected  without  increase 
of  debt  or  taxation,  and  notwithstanding  the  rea- 
sons of  public  faith  and   policy   demanding   their 
completion.     Let    us    look   for   a   moment,   Mr. 
Criairman,  at  this  question  of  revenues  from  these 
works.     Preliminarily  it  is  to  be   remarked,    that 
on  every  principle  of  common  sense,  of  common 
justice,    these   works  would  in  an   estimation   of 
their  productive  value  be  entitled  to  be  credited 
with    two  classes  of  items:  First,  with  the    tolls 
received   on  them    directly;  secondly,   with    the 
Erie  canal  toll  furnished  by  them.     It   has    been 
otten    asserted   that  the  lateral  canals  are  a  dead 
weight  on  the  State,  and  that  their   contributions 
to  revenues  fall  ruinously  short  of  paying  the  ex- 
pense of  their   repairs,  &c.    and    the",  interest  on 
their  cost ;  and  this  assertion  arises  from  the  fact 
that  the  direct  tolls  received  on  them  have  alone 
been  taken  into  the  account;  but  when  they   are 
credited  with  the  amount  contributed  bv  them  to 
the  Erie  canal  revenues,  a  totally  different   result 
is  exhibited  and  a  brighter  as  well    as    truer    pic- 
ture is    presented.     Thus,    the  Comptroller's   re- 
port of  1836  shows,  that  it  the  lateral  canals  then 
existing    had    been  credited  with    the    tolls   they 
brought   to  the  Erie  canal,  instead  of  there  being 
a   deficiency    of    revenue    tor    payment  of  inter- 
est,   repairs,    &c.    of   $48.000,  there    would   be 
a   surplus  ol    $73,000!      The    comptroller    says 
that    much  of  this   would    have  been    transport- 
ed   on  the  Erie  canal,  had  there   been  no   luteral 
canals — this  is  a  measure  doubtless  true  ;  but  he 
gives  no  credit  for  the  return  freight  they  create, 
and  it  is  a  well  known  fact  in  reference  to  our  ca- 
nals, that  any  increase  in  what  is  sent  to  the  east- 
ern markets  produces  as  a  general  rule   a  corres- 
ponding increase  in  the  return  or   "  up"  freight. 
By  the  Comptroller's  report  of  1845,   it  appears 
that  including   the  tolls   received    immediately 
from  the  lateral  canals,  and  those  which  they  con- 
tributed to  the  Erie,  the  excess  of  their  revenues 
over  and  above  the  interest  of  their  costs  and  the 
expenses  of  their  maintenance,  was  for  the  prece- 
ding year  $347,000.     Applying  these  just  rules 
to  the^works   in   question, /^ino  reasonable   doubt 
can  be  entertained  that    they    will    each   afford 
a  revenue,  adequate  at  least  to  defray^  their  cur- 
rent expenses  and  the  interests  on  the  sums  now 


884 


required  for  their  completion.  In  reference  to 
the  unfinished  portion  of  the  Genesee  Valley  ca- 
nal, the  gentleman  from  Allegany  (Mr.  ANGEL,) 
has  given  us  a  detailed  statement  of  facts,  show- 
ing what  may  reasonably  be  expected  from  that 
work  if  completed.  I  will  not  repeat  his  state- 
ment. It  will  suffice  to  say  that,  the  various  pro- 
ducts of  the  region  through  which  it  passes,  the 
extent  of  territory  that  would  be  tributary  to  it, 
its  connection  with  the  navigable  waters  of  the 
Allegany,  must  impress  every  candid  mind  with 
the  conviction,  that  if  completed,  it  would  not 
fail  on  the  principles  I  have  stated,  to  furnish  a 
fund  fully  adequate  to  the  payment  of  its  expen- 
ses, and  of  the  interest  on  the  sum  now  required 
for  its  completion. 

As  to  the  Black  River  canal,  the  same  proposi- 
tion may  be  unhesitatingly  asserted,  if  any  con- 
fidence is  to  be  placed  in  investigations  made  with 
the  greatest  caution  by  men  of  unquestioned  char- 
acter and  intelligence.  In  the  Senate  Documents 
of  1836  is  the  i  esult  of  such  an  investigation  made 
by  Messrs.  H.  A.  Foster  of  Oneida,  N.  J.  Beach 
of  Lewis,  and  P.  S.  Stewart  of  Jefferson,  gentle- 
men known  to  majry  members  of  this  body  to  be 
as  reliable  and  respectable  as  any  within  our  bor- 
ders. It  cannot  be  amiss  to  read  for  the  informa- 
tion of  the  Convention  the  following  extract  from 
that  document,  bearing  the  signatures  of  the  per- 
sons I  have  mentioned : 

Our  information  shows  conclusively  that  the 
imports  and  exports  for  the  past  year  of  the  dis- 
trict of  country  comprised  of  the  towns  of  Lee, 
Western,  Steuben,  Boonville  and  one  half  of  Rem- 
sen,  in  the  county  of  Oneida,  the  whole  of  Lewis 
county,  the  towns  of  Champion,  Rutland,  Rod- 
man, Watertown,  Wilna,  Le  Ray,  Pamelia,  Ant- 
werp, Philadelphia  and  one  half  of  Orleans  and 
Alexandria  in  Jefferson,  and  Edwards,  De  Kalb, 
Fowler,  Gouverneur  and  Rossie  in  St.  Lawrence 
county,  amounts  in 

Tons  of  merchandize  to 2,293 

"         potash.. ••••1,290 

butter 1,217 

cheese.. 517 

pork  and  beef  in  barrels. .  ]  ,052 

whiskey 350 

flour 911 

salt 3,117 

staves 40 

plaster 1,500 

wool 25 

cordage  and  hemp 125 

beer 60 

lumber,  includ'g  shingles    0,258 
iron,  iron  ore  &  castings    2,167 

sundries 335 

It  is  ascertained  that  upwards  ol  20,- 
GOO  head  of  cattle  have  been  driven 
to  market  the  past  season  from  this 
district,  one  half  of  which  we  may 
safely  calculate  would  be  slaughter- 
ed near  Carthage — the  beef  barrel- 
led and  sent  by  the  canal  in  tons,  3,750 
Many  inquiries  were  made  to  ascer- 
tain the  average  transportation  per 
family  of  grain  of  all  description, 
flour,  butter  and  cheese  contracted 
to  be  delivered  along  the  line  of  the 


Erie  canal ;  stock,  grass  seed  and 
the  various  articles  not  enumerated 
above,  which  do  not  find  a  market 
in  the  country  where  they  are  pro- 
duced, but  are  sold  at  Utica,  Rome 
and  Ogdensburgh;  the  result  by 
combining  a  great  number  of  opin- 
ions is  that  the  average  is  not  less 
than  one  ton  per  family 9,940 

To  show  the  above  estima.te  to  be  with- 
in the  truth,  it  is  proper  to  state  that 
the  town  of  Philadelphia,  in  Jeffer- 
son county,  containing  278  families, 
has  sent  to  market  the  present  sea- 
son upwards  of  15,000  bushels  of 
wheat,  this  item  alone  making  540 
tons,  and  the  town  of  Ly me,  in  the 
same  county,  with  a  population  of  3,- 
816,  has  produced  upwards  of  52,000 
bushels  of  wheat;  these  are  but  spe- 
cimens of  the  productiveness  of  the 
country — many  others  might  be  ad- 
duced, showing  an  equal  productive- 
ness. Add  for  the  towns  of  Hermon 
and  Pierpoint  in  St.  Lawrence  coun- 
ty, not  embraced  in  the  above  esti- 
mate in  proportion  to  their  popula- 
tion,   583 

Add  for  the  north  part  of  Herkimer  co. 
which  would  get  its  supplies  of  salt, 
flour  and  plaster  by  the  contempla- 
ted canal  a  like  amount, 583 

Making  a  total  amount  of. ....  36,113  tons. 

Which  at  9  mills  per  ton  per  mile  on 
sixty  miles,  being  the  average  distance 
to  the  Erie  canal,  will  be  in  tolls  $19,- 
501, $19,501 

Your  memorialists  have  taken  due  pains 
to  ascertain  the  probable  quantity  of 
pine  timber  which  would  find  its  way 
to  the  Hudson  immediately  upon  the 
opening  of  the  canal,  exclusive  of  what 
is  now  forwarded  by  different  modes 
of  conveyance,  15,000,000  feet,  for  200 
miles,  including  the  additional  trans- 
portation on  the  Erie  canal,  add  5  mills 
per  ton  per  mile*. 15,000 

10,000  M.  shingles  at  5  mills  per  ton  per 
mile, 2,000 

200,000  cubic  feet  of  square  timber  in 
rafts,  4,000  tons  at  Ic.  5  mills  per  ton 
per  mile, 12,000 

The  country  upon  the  head  waters  of  the 
Black,  Moose,  Independence  and  Bea- 
ver rivers,  and  Woodhull,  Otter  and 
Lewis  creeks  abounds  with  timber; 
we  may  safely  calculate  that  100,000 
cubic  feet  will  pass  in  rafts  to  the  Hud- 
son annually,  to  2,000  tons  at  Ic.  and 
5  mills  per  ton  per  mile, 6,000 

Making  for  the  lumber  business  alone,. .  $35,000 
Add  for  merchandize,  &c 19,501 

And  we  have  for  the  first  year's  business,  $54,501 
If  it  is  assumed  that  the  preceding  estimates  are 
greatly  beyond  the  reality,  still  it  seems  to  me 
impossible  to  say  that  the  business  that  will  be 
furnished  to  the  Black  River  canal,  and  through 


885 


its  means  to  the  Erie,  will  not,  in  all  reasonable 
probability,"  afford  a  full  ant1  }•<  .  nty  to 

the  Sfote  for  the  comparatively  small  sum  now 
required  to  bring  it  into  use.  It  is  to  be  also  ob- 
served, as  1  have  stated,  that,  one  prominent  mo- 
tive, which  induced  the  law  authorising  this 
work,  was  the  supplying  an  additional  feeder  for 
the  Erie  canal ;  even  now  this  addition  to  the  ca- 
pacity of  that  canal  is  often  needed,  and  when  it 
comes  to  be  enlarged  or  improved,  even  to  the 
extent  intimated  by  the  gentleman  from  Herki- 
mer,  I  hazard  little  in  saying  that  this  feeder  will 
be  indispensable.  The  Legislature  were  exceed- 
ingly careful  to  secure  this  subject — the  very  ti- 
tle of  the  act  is  "  for  the  construction  of  the  Black 
River  canal  and  Erie  canal  feeder  "  and  its  last 
section  expressly  provides  for  securing  to  the 
Erie  canal  not  only  all  the  wrater  required  for  the 
Black  River  canal  itself,  but  all  the  surplus  wa- 
ters, and  prescribes  the  mode  of  conducting  these 
surplus  waters  to  the  Erie  canal.  It  is  known  to 
all  that  it  is  a  work  of  difficulty  to  furnish  the 
proper  supply  of  water  for  that  level  of  the  Erie 
canal  into  which  the  waters  of  the  Black  Rner 
canal  would  flow  ;  on  many  occasions  that  level 
would  scarcely  have  been  navigable  without  the 
aid  afforded  by  the  waters  of  the  Chenango  canal 
uniting  with  it  at  Utica ;  and  I  am  just  informed 
by  my  colleague  near  me,  (Mr.  CANDEE,)  that  in 
a  single  season  the  Erie  canal  was  for  the  space 
of  two  months  dependent  on,  the  waters  of  the 
Chenango. 

Again,  Mr.  Chairman,  viewing  this  question 
as  enlightened  men  should  view  it,  is  it  irrele* 
vant,  is  it  chimerical  to  refer  to  the  unquestioned 
benefits  which  the  completion  of  these  works 
would  produce,  irrespective  of  the  question  of 
direct  revenue  from  them  ?  Is  it  nothing,  sir,  to 
know  that  thereby  extensive  tracts  of  country 
would  be  open  to  settlement  aud  cultivation  ;  that 
a  vast  amount  of  productions  <<f  the  forest,  of  the 
mines,  of  agriculture,  now  precluded  from  use  by 
inability  to  reach  a  market,  wrould  thus  be  made 
a  means  of  comfort  and  of  competency  to  thou- 
sands ;  that  our  population  and  wealth,  our  moral 
and  physical  power  would  be  thus  increased ;  and 
while  the  sum  of  human  happiness  would  be  thus 
augmented,  this  commonwealth  would  at  the 
same  time  make  mere  and  more  sure,  more  and 
more  just  its  title  to  pre-eminence  among  its  sis- 
ters of  the  confederacy  ?  I  speak  this,  sir,  in  no 
visionary,  no  "  new  impulse"  sense.  I  am  not 
one  of  those  who  believe  that,  for  the  sake  of  the 
ry"  of  the  State,  or  for  the  sake  of  adding  to 
ite  wealth  and  population  by  means  of 
"  public  improvements"  in  localities,  the  trea- 
sure of  the  people  should  be  expended  and  public 
burdens  imposed;  but,  sir,  1  do  believe  that  such 
considerations,  among  others,  are  properly  to  be 
taken  into  view,  when  the  question  is  such  as 
that  now  before  us ;  and  I  believe  that  the  most 
strenuous  advocate  of  economy  and  retrenchment, 
if  he  has  a  single  spark  of  humanity,  philanthro- 
py or  patriotism  in  his  bosom,  will  not  disregard 
them. 

We  have  heard  much,  sir,  of "  public  faith" 
during  this  debate,  but  so  far  as  that  faith  has 
thus  far  been  discoursed  about,  it  has  had  refe- 
rence solely  to  the  public  creditor ;  in  all  that 
has  been  said  I  fully  concur;  but  in  my  judg- 


ment there   are   other   matters   than   merely  the 
pnt  of  debt,  in  reference  to  which  there  may 
•public   faith."     If  I  err   not  greatly,  this 
"faith"  can  be  and  has  been  pledged   to   others 
than  public  creditors,  and  this  faith  thus  pledged 
has  been  relied  on  and  has  been  acted  on  by  great 
numbers  of  our  fellow  citizens.     The  people   of 
this  State,   acting   in  their  sov«  icity, 

through  the  only  agents  and  representatives  of 
that  sovereignty,  the  legislature,  solemnly  ordain- 
ed and  declared  on  the  19th  day  of  April,  l^-'Jii, 
that  the  Black  River  canal  should  be  constructed 
with  all  reasonable  diligence,  and  on  the  Gth  day 
of  May,  in  the  same  year,  they  made  the  same 
solemn  declaration  as  to  the  Genesee  Valley  Ca- 
nal. The  work  was  accordingly  commenced  and 
has  been  carried  to  different  stages  of  completion 
throughout  the  whole  line  of  both.  On  these  or- 
dinances and  declarations,  on  this  plighted  faith 
of  the  sovereign  power,  multitudes  of  men  have 
relied;  and  so  relying,  have  purchased  their 
farms,  built  their  houses,  erected  their  work- 
shops, expended  and  invested  their  money,  made 
their  arrangements  for  business  and  for  life,  aban- 
doned their  old  residences  and  pursuits  and  en- 
tered upon  new.  And  was  there,  sir,  no  "  faith" 
here  ?  nothing  which  could  be  violated — nothing 
that  imposed  any  obligation?  I  say,  sir,  that 
there  was ;  and  while  we  sacredly  and  inviolably 
preserve  our  faith  to  thje  public  creditor,  let  us 
beware  how  we  break  it  to  thousands  of  our  citi- 
zens. Let  me  not  be  misunderstood  or  misrepre- 
sented ;  I  do  not  for  a  moment  pretend  that  the 
state  was  bound  at  all  events  to  prosecute  these 
works  to  completion  ;  such  a  doctrine  would  be 
monstrous  and  absurd.  Many  circumstances  might 
occur  to  forbid  and  prevent  such  a  result ;  any  un- 
foreseen public  calamity  depriving  the  State  of 
the  means  except  by  resorl  to  debt  and  taxation ; 
or  even  the  inability  of  the  State  without  the  aid 
of  general  direct  taxation,  these  and  similar  events 
I  am  willing  to  concede  would  answer  all  allega- 
tions of  a  violation  of  plighted  faith  in  this  regard. 
I  do  not  believe  that  "  internal  improvements" 
local  in  their  character  are  to  be  constructed 
through  means  of  creation  of  public  debt  to  be  dis- 
charged only  by  direct  taxation  on  the  whole 
people ;  I  advocate  no  such  proposition. 
'  But,  sir,  I  do  mean  to  say  that  when  these  leg- 
islative acts  have  thus  been  passed,  when  citizens 
in  vast  numbers  have  acted  on  the  faith  of  them, 
and  will  be  made  to  suffer  inconvenience,  dis- 
tress and  loss,  by  their  not  being  executed,  it  is 
the  solemn  duty  of  the  state  to  carry  them  out,  if 
it  ca-n  be  done  consistently  with  the  principles  I 
have  above  stated  ;  and  their  needless,  reckless 
abandonment  is  to  every  substantial  purpose  mor- 
illy  and  equitably  a  violation  of  the  plighted 
faith  of  the  State,  second  only  in  turpitude  to  its 
violation  in  the  case  of  the  public  creditor, 
.ieving  as  I  do,  that  by  means  of  the  canal  reve- 
nues, without  resort  to  taxation  or  to  debt,  and  on 
the  plan  proposed  by  the  amendment  in  question, 
;hese  works  can  be  completed  in  a  reasonable 
:ime,  I  cannot  refrain  from  saying  that  their  aban- 
lonment  as  substantially  proposed  in  the  plan  of 
he  standing  committee  would  violate  our  faith, 
fully  our  honor,  and  sow  far  and  wide  the  seeds 
of  discontent  and  dis-ention.  Further,  sir,j[  wish 
hat  the  members  of  this  Convention,  with  my 


886 


venerable  friend  (Mr.  ALLEN)  from  New  York 
at  their  head,  could  accompany  me  along  the 
lines  of  these  unfinished  public  works,  including 
the  Erie  canal  enlargement,  and  witness  the 
scenes  of  desolation  that  would  every  where 
meet  the  eye ;  expensive  structures  going  to  de- 
cay, costly  materials  scattered  along  in  shape- 
less masses,  miles  of  canal  here  and  there  in  a 
partly  finished  state,  other  miles  entirely  comple- 
ted but  now  deserted  and  rapidly  filling  up  and 
choked  with  weeds  and  brambles  ;  locks  firmly 
and  well  built  crumbling  under  the  influence  of 
the  elements — in  fine,  all  the  outward  eviden- 
ces thatdistress,bankruptcy,  ruin, must  have  fallen 
with  a  mortal  weight  on  that  power,  whatever 
it  might  be,  that  had  thus  commenced,  and  thus 
left  these  structures.  What  a  spectacle  for  a 
citizen  of  New  York  ! 

Again,  sir,  this  is  not  all.  In  years  gone  by, 
persons  clothed  with  the  authority  of  the  '•sove- 
reignty" of  New  York  entered  on  the  gardens, 
and  door  yards,  and  orchards,  and  beautifully  cul- 
tivated fields  of  hutidieds  of  your  citizens,  and 
there  commenced  to  plough  and  dig  and  scrape, 
saying  that  they  did  so  by  authority  of  the  State, 
and  consoling  the  citizen  for  this  desecration  of 
his  estate  by  the  promise  and  the  assurance,  that 
this  was  all  for  the  public  good,  and  that,  his  eye 
should  soon  be  rejoiced  wllh  the  view  of  a  beau- 
tiful artificial  river  bearing  on  its  bosom  varied 
productions  of  his  and  his  neighbgr's  farms  and 
forests  and  workshops  !  Well,  sir,  this  went  on; 
the  citizen  quietly  submitted  to  this  intrusion, 
looking  to  the  performance  of  the  promise  ;  and 
what  now  is  the  result  ?  Why,  sir,  a  miserable, 
halt-finished,  mis-shapen  ditch,  marring  and  de- 
facing his  lands;  useless  materials.strewn  along  by 
its  side;  his  property  depreciated;  his  comfort 
and  his  interests  seriously  affected.  Now,  sir,  if 
my  brethren  of  the  Convention  could  personallv 
witness  these  spectacles  of  desolation,  they  would 
say,  not  that  debt  and  taxation  should  be  incurred 
to  remedy  these  evils,  but  that  it,  without  resort- 
ing to  either,  and  by  a  judicious  application  of  the 
resources  of  the  Stale  these  spectacles  should  scon 
cease  to  dishonor  and  disgrace  us,  they  would 
with  one  loud  accord  say,  Tet  this  state  of  things 
no  longer  continue,  let  the  hopes  and  expectations 
of  the  citizen  be  realized,  let  the  promises  of  the 
State  be  performed.  Were  it  necessary,  for  the 
persons  who  are  thus  suffeiing,  to  endure  the  ex- 
isting state  of  things  for  the  sake  of  some  great 
good  to  the  commonwealth,  beyond  all  doubt  they 
would  patiently  and  patriotically  make  the  sacri- 
fice ;  but  when  no  such  necessity  exists  or  can 
justly  be  alleged,  you  may  well  imagine  that  they 
are  brooding  with  no  good  feeling  over  the  inju- 
ries they  are  enduring,  and  are  looking  forward 
with  impatience  to  the  day  of  their  deliverance. 
The  multitudes  in  various  modes  affected  by  this 
question  are  loudly  calling  for  redress — this  re- 
dress they  are  entitled  to  demand — and  it  is  in  the 
power  of  the  State  to  afford  it  to  them,  gradually, 
perhaps,  but  certainly,  by  means  of  the  canal 
funds  and  revenues  remaining  after  the  applica- 
tion of  $1, 500,000  in  the  manner  proposed  by  the 
amendment  under  consideration. 

While  it  is  conceded  that  the  discharge  of  the 
public  debt  is  first  and  at  all  events  to  be  provi- 


ded for,  I  contend  that  it  is  our  imperative  duty  to 
secure  the  suitable  and  requisite  improvement  of 
;he  Erie  canal,  and  the  resumption  of  the  unfin- 
shed  canals,  including  the  Oneida  River  improve- 
ment, if  these  latter  objects  can  be  accomplished 
consistently  with  our  first  duty  to  the  public  cre- 
ditor. I  appreciate  the  magnitude  and  import- 
ance of  this  subject  in  its  various  bearings;  I  have 
approached  and  examined  it  with  a  full  sense  of 
the  responsibilities  it  involves,  and  my  conclu- 
sions have  been  formed  with  the  deliberation 
which  it  demanded.  These  conclusions  are,  that 
the  proposition  contained  in  the  amendment  pre- 
sents a  sure  and  safe  mode  in  which  the  public 
debt  may  be  discharged  and  the  public  improve- 
ments just  mentioned  completed  in  a  reasonable 
time,  and  thus  the  public  faith  be  preserved  alike 
with  the  creditor  and  the  citizen.  To  show  the 
practical  workings  of  the  proposed  sinking  fund 
of  $1,500,000  and  its  sure  extinguishment  of 
the  public  debt  within  a  reasonable  period,  name- 
ly, within  twenty-three  years,  I  will  read  the  fol- 
lowing table  prepared  by  the  gentleman'from  Liv- 
ingston, (Mr.  AYRATJLT,)  as  skillful  and  able  a 
financier  as  is  found  on  this  floor,  and  who 
vouches  for  its  absolute  accuracy: 

Table  showing  the  extinguishment  of  the  pub- 
lic debt  of  this  State,  by  applying  thereto  annual- 
ly out  of  the  canal  revenues  the  sum  of  $1,500,000 
for  ten  years,  and  $2,000,000  thereafter:  — 

Amount  of  Principal  Debt  July  1,  1846,-  •••  $22,300,000 
Int.  one  jear  ato£  percent  ...................  1,226,500 


Payment, 


23,526,500 
1  500.000 


Debt  July  1,   1847,  .......  ••  .................    22,026,500 

Int  one  year  at  5£  per  cent,  .................       1,211,457 


Payment,. 


Debt  July  1,  1848, 

Int.  one  year  at  6£  per  cent. 


Payment," 


Debt  July  1,  1349,...-. 

Int.  one  year  at  5£  per  cent,  • 


Payment, 


Debt  July  1,1850..  ••: 

Int.  one  year  at  5£  per  cent- 


Payment- 


Debt  July  1,  1851 

Int.  one  year  at  5£  per  cent- 


20,773,568 
1,142,545 


Payment- 


Debt  July  1,  1852 

Int.  one  year  at  6£  per  cent- 


Payment 


Debt  July  1,1853, 

Int.  one  year  at  6£  percent. 


Payment- 


1,102,144 


21,141,142 
1,500,000 


887 


Debt  July  1,1854  19,641,142] 
Int.one  yearato}  percent  1,080,262 

3,839,373 

20,721,404 

1,983,841 
July  1,  1869,  $2,000,000  will  over-pay  the  debtby          16,159 

$2,000,000 

Any  gentleman  can  examine  this  table  at  his 
pleasure.      It  can  be  understood  by  any  one  the 
Least  conversant  with  the  commonest  rules  of 
arithmetic,   and   it  furnishes    an    unanswerable 
demonstration   of  the  important  truth  that  the 
public  debt  will  beyond  casualty  or  peradventure, 
be  fully  paid  and  overpaid  on  the  1st  day  of  Julv, 
1869,  by  creating  the  sinking  fund  we  propose  ; 
and  this  too,  entirely  out  of  the   canal   revenues, 
without  the  creation  of  a  dollar  of  new  debt   or 
the  imposition  of  any  additional   tax  whatever  ; 
while  at^the  same  time,  as  I  will  soon   show,  a 
liberal  annual  sum  will  remain  of  the  surplus  of 
those  revenues,  applicable   to   the   improvement 
of  the  Erie  canal  and  of  the  gradual  completion 
of  the  other  canals  and   applicable   also  to  other 
purposes  of  the  government,  if  it  is  just  and  equi- 
table that  they  should  be  so  applied.     I  must  con- 
fess myself,  sir,  highly  gratified  at   having  been 
able  to  arrive  at  a  conclusion  so  auspicious  to  the 
.best  interest  of  our  state,  and  so  well  calculated 
to  diffuse  joy  and  giadness  among  so  many  thou- 
sands of  our  people.     You   have  perceived,   sir, 
that  this  table  assumes  the  debt  at  $22,300,000, 
and  I  affirm  that  this   sum  in   fact  exceeds   the 
whole  of  the  existing  debt  of  the  state,  deducting 
therefrom  the  available  means   on   hand.     There 
has  been  for  a  long  time  a  sort  of  mystery  hang- 
ing around  this   question  of  the  amount  of  the 
public  'debt;  and  I  have   heard   frequent   com- 
plaints that  the  accounts  at  the  public  offices  are 
kept  in  such  a  way,  and  the  statements  furnished 
by  them  are  made  in   such  a  manner,   that   it  is 
quite  difficult  to  ascertain   what  the  precise  and 
exact   amount  of  our   debt  is.     I   believe  I  can 
now  solve  the  difficulty  and  present  an   accurate 
view  of  this  matter.     The  Comptroller,  whose 
peculiar  financial  notions  I  do  not  wholly  admire, 
but  to   whose   capacity,   integrity  and  fidelity,  I 
bear  willing  testimony,  made  a  report  on  the  9th 
instant  in  answer  to  a  resolution  of  the   Conven- 
tion, which  furnishes  the   data  for   precisely  as- 
certaining the   present   actual   debt   of  the  ^tate 
over  and  above  available  funds   on   hand.     This 
debt  for  all   practical   and   substantial   purposes 
may  be  stated  at  $21,  864,  998  35   on   the   1st  day 
of  September  instant.      I  will  state  the  mode  by 
which  I  arrive  at  this   result,   and   every  gentle- 
man can  then  form  his  own  opinion  as  to  its  sub- 
stantial accuracy. 
The  Comptroller  reports  the  whole  debt  as  fol- 
lows: 

20,273,581 

The  interest  for  the  ten  preceding  years  has  been 
»     cast  at  5  1-2  per  cent,  and  $1,500,000  applied 
as  an  annual  sinking  fund. 
From  July  1,  1856,  the  interest  has  been  cast  at 
5  per  cent.,  and  $2,000,000  applied  annually  as 
a  sinking  fund. 

19,717,510 

18,603,385. 

17,433,554 

16,205,231 

14,915,492 

13,561.266 

12,139,329 

10,646,295 

9,078,609 

7,432,539 

Comptioller  s  bonus                                               I,o07,002  59 

$23,879,140  12 
Add  Indian  annuities  lor  which 
no  stock  is  issued  $1226V4,87 
Also  dues  of  specific  funds  740,151,78 
862,846  65 

5.70-i  ]«/i 

Total  $24.741,937  37 

888 


From  this  aggregate  of  $24  741,987  37, 1  de 
duct  as  follows : 

(1 )   Amount  deposited $193,6-2256 

(-2.)  Loaned  to  solvent  ctmal 

and  Railroad  Companies-    1,713.000  00 
(3.)  Available  funds 

(4)  Loan  to  city  of  Alba  ay.- 

(5)  Loan  to  Banks 

(6.)  One  half  of  "balance  in 

Banks"  


505,44-J  14 

30,000  00 

314,443  02 


15,476  30 


$2,376,989  02 


Leaviag  as  the  true  indebtedness $21,864,998  35 

I  will  now  explain  the  reasons  for  the  pre- 
ceding deductions. 

Item  No.  1,  is  deducted  as  being  the  amount 
stated  by  the  Comptroller  to  be  actually  deposit- 
ed in  the  bank  of  the  Manhattan  Company  in 
payment  of  State  stock  past  due. 

Item  No.  '2,  is  deducted  because  it  consists  of 
State  stocks  loaned  to  solvent  companies,  who 
have  punctually  paid  the  interest,  and  who,  there 
is  no  reason  to  doubt,  will  continue  to  pay  the 
interest  and  redeem  the  principal  when  it  fails 
due.  Some  of  these  companies  in  addition  to  the 
payment  of  the  interest,  pay  a  certain  annual  sum 
for  a  sinking  fund.  This  item  [No.  2,]  is  com- 
posed as  follows : 
State  stock  loaned  to — 

Delaware  and  Hudson  Canal  Co $793,000 

Auburn  and  Syracuse  Railroad  Co. 200,000 

Auburn  and  Rochester  Railroad  Co 200,000 

Long  Island  Railroad  Co. 100,000 

Hudson  and  Berkshire  Railroad  Company 150,000 

Toaawanda  Railroad  Company ••       100,000 

Tioga  Coal-Iron  Mining  and  Manufacturing 

Company 70.000 

Schenectady  and  Troy  Railroad  Co. 100,000 

$1,713,000 


Item  No.  3  is  deducted  because  in  the  same  re- 
port the  Comptroller  states  it  to  be  the  amount  of 
cash  on  hand  deposited  in  hank. 

(ti'iu  No  4  is  deducted  because  it  is  a  loan  to 
the  city  ot'  Albany  ;  it  is  classed  by  the  Compl rol- 
ler among  "  unavailable*"  Cor  the  reason  that  it 
was  not  paid  at  maturity.  The  city  of  Albany 
as  well  as  the  public  in  general,  will  be  astonished 
to  learn  thai  a  debt  of  $30,000  against  that  city  is 
an  "  unavailable"  demand.  Had  the  Comptroller 
put  the  d<;bt  in  suit,  I  am  of  opinion  that  the 
sheriff  would  before  this  time  have  made  it 
''available" 

Item  No.  5  is  deducted  for  the  following  reason  : 
The  .Comptroller  (in  the  same  report)  states  that 
"  if  the  banks  continue  to  pay  their  several  con- 
tributions  to  the  Safely  Fund  to  the  end  of  their 
charters,  this  sum  will  be  paid  as  it  matures  from 
1830  to  LSOS."  Now  I  apprehend  it  may  be  safely 
affirmed  that  the  existing  solvent  safety  fund  banks 
"will  continue  to  pay  their  contributions  to  the 
end  of  their  charters."  I  do  not  believe  that  this 
admits  of  any  reasonable  doubt. 

Item  No.  6  is  deducted  under  the  following  cir- 
cumstances :  The  Comptroller  in  the  same  re- 
port, among  unavailable  items,  enumerates  "  bal- 
ances in  banks.  $230,952.60* — and  on  this  item  he 
remarks  as  follows:  "  Of  the  balance  of  $2?0,- 
952.b'0,  due  from  broken  banks,  some  portion  will 
be  paid  from  the  safety  fund  and  a  portion  will  be 
lost."  It  may  well  be  believed  by  all,  who  know 
the  proverbial  caution  of  the  Comptroller  and  his 
disinclination  to  show  the  '"sunny  side"  in  fi- 


nancial matters,  that  under  the  statement  1  have 
just  extraeted  from  his  report,  it  will  be  very  safe 
to  estimate  his  "  some  proportion"  at  50  per  cent, 
and  I  have  made  the  deduction  accordingly.  I 
have  been  thus  particular,  Mr.  Chairman,  in  this 
statement,  for  the  purpose  in  part  ot  contributing 
my  share  to  satisfy  the  public  curiosity  as  to  the 
real  amount  of  our  public  debt,  but  mostly  to 
show  that  this  debt  is  not  assumed  at  too  small  a 
sum  in  the  table  1  had  the  honor  to  read. 

For  the  sake  of  convenience  I  will  call  the  to- 
tal debt  $22,000,000,  composed  of  the  canal  debt 
say  $17,000,000,  and  the  General  Fund  debt  say 
$5,000,000;  these  sums  of  course  are  not  precise- 
ly accurate,  but  for  all  the  purposes  of  this  dis- 
cussion they  are  sufficiently  so.  It  will  be  seen 
then  that  by  the  plan  I  advocate,  the  whole  debt 
of  the  State  of  every  kind  will  be  cancelled,  in- 
eluding;  the  debts  created  by  the  lateral  canals,  by 
I  he  defaulting  railroads,  &c.,  arid  that  the  debt 
denominated  the  general  fund  dent  wjU  be  extin- 
guished, by  means  of  the  canal  revenues.  This 
latter  debi,  as  has  already  been  stated, -amounts  to 
about  five  millions  of  dollars,  and  by  paying  that 
in  this  manner,  the  canal  revenues  pay  to  the 
General  Fund  that  sum.  It  is  beyond  ill  doubt 
or  question  that  the  canals  ought  to  pay  t<r  the 
General  Fund,  or  in  other  words,  to  the  State  for 
general  purposes,  such  sums  as  have  been  ad- 
vanced from  that  fund  for  the  canals.  The  ques- 
tion what  the  amount  of  these  sums  is  has  been 
fully  discussed  on  this  floor  by  the  gentleman  from 
Herkimer  (Mr.  HOFFMAN)  and  the  gentlemen 
from  Allegany  (Messrs.  ANGEL  and  STOW);  the 
former  contends  that  the  debt  due  from  the  canals 
to  the  General  Fund  is  thirteen  millions  of  dol- 
lars, the  greater  part  of  which  is  composed  of  the 
auction  and  salt  duties  and  of  compound  interest. 
The  latter  gentlemen  have  most  ably,  and  in  my 
judgment,  most  successfully  argued  that  this  debt 
does  not  on  any  just  ground  exceed  five  millions 
of  dollars,  and  that  the  auction  and  salt  duties 
cannot  on  any  legal  or  equitable  principle  be 
leemed  a  part  of  it.  Without  that  part  no  one 
would  contend  that  this  debt  exceeds  five  millions. 
I  s-hall  not  perform  (he  superogatory  part  of  re- 
peating the  arguments  of  the  gentlemen  I  have 
mentioned,  but  if  I  mistake  not,  they  demon- 
strated that  the  auction  duties  were  mainly  brought 
into  being  by  the  canals,  that  they  were  created 
by  and  for  the  canals  specially,  and  that  thev 
,vere  so  levied  and  paid  that  they  were  in  fact  a 
local  and  not  a  general  tax  ;  that  as  to  the  salt  du- 
ties they  scarcely  existed  prior  to  the  canals;  that 
they  were  raised  400  per  cent  per  bushel  expressly 
for  the  canal;  and  by  means  solely  of  the  canals  the 
manufacture  was  so  increased  as  to  raise  a  large, in- 
stead of  a  trifling  sum  from  this  source  ;  that  from 
the  very  nature  of  the  case,  this  tax  was  a  local  tax 
imposed  on  the  western  section  of  the  State. in  con- 
sideration of  the  peculiar  benefits  they  were  to  de- 
rive from  'he  Eri<j  canal ;  these  arid  various  other 
arguments  adduced  by  those  gentlemen  demonsira- 
ed,  in  my  judgment,  that  these  items  could,  on  no 
>roper  principle,  be  used  to  swell  the  debt  of  the 
canals  to  the  General  Fund  ;  and  they  thus  show- 
ed that  this  debt  dues  not  exceed  the  sum  of  five 
millions.  Indeed,  sir,  so  strong  is  rny  conviction 
n  this  point  that  I  would  be  willing  to  risk  the 
decision  of  the  whole  question  now  pending,  on 


889 


the  issue  of  a  submission  ot'  these  claims  to  the 
General  Fund  against  the  canals,  to  the  arbitra- 
ment of  any  impartial  tribunal,  of  the  present 
Chancellor  or  present  Judges  of  the  Supreme 
Court ;  and  it  on  a  lair  view  ot  all  the  facts,  and 
after  hearing  the  gentleman  from  Herkimer  as 
counsel  foi  the  General  Fund,  and  the  gentleman 
from  Erie  in  behalf  of  the  canals,  either  of  those 
tribunals  would  award  against  ihe  latter  over  the 
sum  of  five  millions  of  dollars,  I  would  be  almost 
willing  10  say  that  I  would  adopt  the  sinking  fund 
proposed  by  the  standing  committee,  and  yield  »ip 
that  pioposed  by  the  amendment.  And,  sir,  this 
is  a  matter  not  of  idle  theory  or  curious  specula- 
tion merely,  but  ot  practical  importance;  for  up- 
on it  the  gentleman  from  Heikimer  mainly  builds 
his  arguments  in  support  of  the  sinking  funds, 
which  he  has  advocated  and  in  behaH  of  the  uses 
Co  which  the  latter  ot  his  proposed  funds  (.$672,- 
500)  should  be  applied.  If  the  debt  of  the  canals 
to  the  General  Fund  is  only  five  millions,  the  gen- 
tleman concedes  that  this  last  sum  should  be  re. 
ducedto  $200,000.  The  gentleman  has  repeated- 
ly, in  the  course  of  this  debate,  staled,  and  assum- 
ed as£  ptinciple,  that  as  between  the  canals  and 
the  General  Fund,  all  that  could  be  required  ot 
the  tormer  was  to  pay  the  debt  justly  due  fiom 
them  for  advances  out  of  the  General  Fund;  he 
has  over  and  over  again  repudiated  the  doctrine 
that  tne canals  should  be  burdened  with  the  sup- 
port of  ihe  government  and  the  payment  of  its 
annual  current  expenses.  I  atn  not  to  say  wheth- 
er the  views  of  the  gentleman  on  this  point  are  or 
are  not  sound. 

I  iie>ire,  in  connection  with  this  branch  of  the 
subject,  Mr.  Chairman,  to  call  the  attention  of  the 
committee  if  a  U.cl  that  cannot  fail  to  excite  their 
unfeigned  astonishment.  The  distinguished  gen- 
tleman, to  whom  1  have  so  often  alluded,  (Mr. 
HOFFMAN)  has,  as  I  have  before  remarked,  often 
in  tins  debate  spoken  in  terms  of  just  abhorrence 
of  the  violation  of  the  public  faith  ;  he  has  insist- 
ed that  that  faith  would  be  violated  by  the  adop- 
tion ot  any  plan  that  did  not  provide  lor  the  pay- 
ment of  the  public  debt  as  early  as  the  year  1864, 
and  all  thete  allegations  he  has  based  mainly,  at 
times  apparently  entirely,  on  the  pledge,  contain- 
ed, as  he  alleges,. in  the  famous  act  of  1842,  that 
the  public^  debt  should  be  paid  within  22  and 
one-half  yvars  after  that  time.  VVe  have  heard 
mucn  now  and  heretofore,  within  and  without 
this  hall,  of  the  vaunted  "  policy  of  1842,"  as  ex- 
hibited by  that  act,  and  as  marufe-ttd  among  other 
provisions  of  that  act,  by  thai  above  mentioned  in 
reference  to  the  float  time  of  paying  the  public 
ciedilor.  Now,  Mi.  Chairman,  will  it  not  excite 
your  special  wonder  and  that  of  all  who  hear  me, 
when  I  state  the  fact,  that  the  provisions  of  the 
proposed  amendment  not  only  do  not  violate  the 
public  f.uth  by  extending  the  payment  of  the  pub- 
lic debt  beyond  the  time  limited  in  the  act  of  1842, 
but  they  actually  preserve  it  more  than  inviolate 
by  shortening  that  time  three  >ears!  80  much 
has  been  said  on  this  subject,  and  so  much  reli- 
ance has  been  placed  by  that  gentleman  in  various 
parts  of  his  argument  on  that  ptovision  of  the  act 
ot  1842,  thai  it  cannot  be  amiss,  sir,  to  devote  a 
few  moments  to  demonstrating  that  that  celebrated 
act  extends  the  time  of  payment  of  the  public- 
debt  to  thirty  years  instead  of  twenty -two  and  an 


half— to  1871  or  1872  instead  of  to  1869,  as  is  pro- 
vided  in  the  amendment,  which  the  gentleman 
denounces  us  a  violation  of  the  public  faith,  for 
the  reason,  as  he  asserts,  that  it  postpones  beyond 
the  period  plighted  and  pledged  by  the  act  of 
1842,  the  payment  of  the  just  deotsof  the  state. 

This  act  was  passed  on  the  29th  day  of  March, 
1842  ;  it  provides  among  other  things  that  the 
commissioners  of  the  Canal  fund  shall,  "at  the 
close  of  every  fiscal  year,  ascertain  and  state  the 
amount  of  canal  debt  now  existing,  and  author- 
ized by  this  act,  so  far  as  the  same  shall  remain 
unpaid,  and  distinctly,  the  annual  interest  on 
said  debt ;"  and  that  "the  surplus  of  the  canal 
revenue,  after  paying  all  just  expenses,  &c., 
shall,  to  an  amount  at  least  equal  to  one-third  of 
the  interest  of  the  canal  debt  remaining  unpaid 
be  sacredly  devoted  as  a  sinking  fund,"  &c.  The 
bare  reading  of  these  provisions  of  this  act-  must 
satisfy  any  person  ordinarily  versed  in  the  Eng- 
lish language,  that  its  true  and  only  construction 
is,  that  the  sinking  fund  thereby  provided  is  a 
sum  equal  to  one-third  of  the  interest  on  the  ca- 
nal debt  remaining  unpaid  at  the  close  of  every 
fiscal  year.  Besides,  sir,  is  it  possible  to  suppose 
that  the  author  of  that  act,  or  the  legislature 
which  passed  it,  if  he  or  they  had  intended  that  a 
fixed  and  certain  sum  should  annually  be  set  a- 
part  as  a  sinking  fund,  would  have  resorted  to  the 
clumsy  circumlocution  of  saying  that  "it  should 
be  a  sum  equal  at  least  to  one-third  of  the  inter- 
est of  debt,"  &c.,  instead  of  stating  directly  the 
sum  itself?  Yet,  sir,  the  whole  argument  of  the 
gentleman,  that  that  act  promised  and  pledged  the 
public  faith  to  the  payment  of  the  debt  in  22i 
years,  is  founded  on  the  assumption  that  the  true 
construction  of  the  act  is,  that  the  sinking  fund 
provided  by  it,  is  a  sum  equal  to  one-third  of  the 
interest  of  the  debt  as  it  then  was,  instead  of 
one-third  of  the  interest  on  the  debt  remaining 
unpaid  at  the  close  of  each  year.  Sir,  that  debt 
as  it  then  existed  was  well  known — it  was  $20,- 
710,33o— one-third  of  its  interest  was  $375,909 
— and  if  this  latter  sum  had  been  intended  as  the 
fixed  and  permanent  sinking  fund,  it  is  impossible 
to  believe  that  the  sum  would  not  have  been 
named  and  stated  in  the  act.  [Here  the  gentle- 
man from  New  York  (Mr.  TILDEJV)  inquired 
whether  the  debt  would  ever  be  fully  paid  on 
the  construction  given  to  the  act  by'the  gentle- 
man from  Oneida.]  1  answer  the  gentleman,  by 
informing  him  that  under  the  operation  of  the 
sinking  fund  provided  by  the  act,  an  "infinitesi- 
mal" sum  would  remain  unpaid  after  the  expira- 
tion of  thirty  yt  ars — but  if  this  is  an  absurdity, 
it  is  one  for  which  the  authors  of  the  act  not  oth- 
ers, are  responsible,  Besides,  I  will  furnish  the 
gentleman,  in  a  moment,  with  an  authority  as  to 
the  construction  of  the  act,  with  which  he  at 
least,  will  be  satisfied  I  said,  sir,  that  this  act 
of  '42  provided  for  the  payment  of  the  debt  in 
thirty  years,  and  no  sooner  ;  and  the  following 
table  proves  the  truth  of  my  assertion.  [See 
statement  A.] 

I  promised,  sir,  to  furnish  the  gentleman  from 
New  York  with  an  authority,  to  which  he  at 
least,  would  bow  with  reverence — and  that  au- 
thority is  no  le-s  than  the  present  Comptroller. — 
In  the  annual  report  of  that  officer  for  the  year 
1845,  he  expressly  asserts  the  precise  construe- 

86 


890 


tion  for  which  I  contend  ;  and  he  ascertains  the 
sum  of  the  sinking  fund  for  that  year  according- 
ly 

The  following  is  his  language  : — 

The  act  of  1842  provides  that  the  Commissioners  of  the 
Canal  Fun  1  shall,  at  the  close  oi  each  year,  make  a  staie- 
ment  ot  all  the  expenditures  on  account  of  the  several  ca- 
nal funds,  and  also  a  statement  uf  all  the  canal  revenues, 
and  of  the  canal  debt,  and  the  amount  required  to  pay  the 
annual  interest  thereon. 

The  an  ual  stat^rmnt  made  out  according  to  the  require, 
ments  of  th-  liw  i  cirri  CN!  to,  shows  a  surplus  o!  canal  rev- 
enues, beyon  i  th  payments  made,  as  provided  in  the  sr.me 
law,  ior  the  fiscal  year  ending  on  the  30th  September  last, 
(1844  )  of  $572  645  35.  The  annual  int.  on  the  ranal  debt  re- 
7/zamni£  unpaid  at  the  dose  oj  the  year,  is  $1,1-26,697  90— one 
thiid  of  this  sum  is  $575,465  96,  and  the  12th  section  of  the 
act  of  1842  declares,  that  the  canal  surplus,  shall,  to  an 
amount  et  least  equal  to  one-third  of  the  interest  of  the  ca- 
nal debt  remaining  unpaid,  be  sacre  lly  devoted  and  appli- 
ed as  a  sinking  hind  lor  the  redemption  of  the  canal  fund. 

It  will  be  seen  that  this  officer  states  the  sink- 
ing fund  for  that  year  to  be  $375,465,  being  one 
third  of  the  interest  on  the  debt  remaining  un- 
paid at  the  close  of  the  preceding  fiscal  year,  in- 
stead of  $375,909,  one  third  of  the  interest  on  the 
debt  as  it  was  at  the  time  of  the  passage  of  the 
act  of '42.  What  could  be  more  explicit?  and 
what  then  becomes  of  the  argument  of  the  gen- 
tleman from  Herkimer,  based  as  it  mainly  is  in 
many  of  its  wholly  important  parts  on  the  assump- 
tion that  the  act  o"f '42  pledged  the  faith  of  the 
State  to  the  payment  of  its  debt  in  22g  years  ? 

Having,  as  I  trust,  sir,incontrovertibly  demon- 
stated  that  by  the  plan  proposed  in  the  amend- 
ment the  entire  debt  of  this  State  would  be  cer- 
tainly extinguished  in  the  year  1869,  and  this 
great  and  primary  object  being  thus  secured,  I 
will  proceed  to  consider  the  effect  and  bearing  of 
that  amendment  on  the  farther  great  and  impor- 
tant question  of  the  Erie  canal  improvement  and 
the  completion  of  the  Erie  canal  improvement 
and  the  completion  of  the  unfinished  canals. 

[The  gentleman  from  Clinton  ^Mr.  STETSON) 
here  inquired  whether  the  act  of  '42  contained 
any  provision  necessarily  postponing  the  payment 
of  any  part  of  the  public  debt  as  it  falls  due  ;  and 
intimating  that  such  was  the  effect  of  the  amend- 
ment under  consideration.] 

I  inform  the  gentleman  that  in  this  respect  there 
is  no  difference  between  the  act  of  '42  and  the 
proposed  amendment ;  neither  of  them'  contains 
any  such  provision  or  any  thing  bearing  any  re- 
semblance to  it. 

The  nett  canal  revenues  of  the  present  year 
may  be  safely  stated  at  about  $2,200,000  ;  deduct 
from  this  the  proposed  sinking  fund  of  $1,500,- 
000,  and  it  leaves  the  sum  of  $700,000  to  be  ap- 
plied, if  desirable,  to  the  works  in  question  or  to 
other  State  purposes. 

[The  gentleman  from  Herkimer  (Mr.  HOFF- 
MAN) inquired  how  the  current  expenses  of  the 
government  were  to  be  provided  for  under  the  a- 
mendment  ? 

I  a-k  the  gentleman  if  he  has  not  often  in  this 
debate,  asserted,  and  if  he  does  not  now  maintain, 
that  these  expenses  should  not  be  charged  on  the 
canal  revenues  ?  [Mr.  H.  replied  in  the  affirma- 
tive.] I  then  answer  the-  gentleman  that,  ifhispo- 
sitwn  is  correct,  these  expenses  would  be  provi- 
ded for  in  the  ordinary  manner  in  which  this  go- 
vernment and  all  other  governments  provide  for 
such  expenses;  but  I  go  farther,  and  say  that  this 


question  does  not  arise  under  this  amendment:  it 
should  be  a  subject  of  discussion  and  adjustment 
under  some  subsequent  amendment  to  be  proposed. 
If  a  portion  of  this  surplus  should  justly  and  pro- 
perly be  applied  to  and  should  be  required  for  the 
ordinary  support  of  the  government,  still  there 
would  be  a  large  and  available  sum  to  be  devoted 
to  the  improvement  of  the  Erie  and  the  resump- 
tion of  the  unfinished  canals.  Should  there  be  no 
increase  at  all  in  these  nett  revenues,  the  sur- 
plusses  in  six  years  would  amount  to  the  sum  of 
$4,200,000,  a  sum  which  would  accomplish  much, 
perhaps  every  thing,  for  these  works,  while  at  the 
same  time  it  might  liberally  contribute  to  the  cur- 
rent annual  expenses  of  the  government,  if  such 
contribution  shall  be  required  by  justice  or  poli- 
cy. But  Mr.  Chairman,  there  is  no  rational  doubt 
that  the  average  annual  increase  of  these  nett  re- 
venues will  be  large,  and  the  gentleman  himself 
states  the  increase  in  the  aggregate,  for  the  ensu- 
ing ten  years,  at  $2^500,000,  and  he  declares  that 
it  is  not  improbable  that  they  may  in  that  period 
exceed  $4,000,000.  Assuming,  sir,  the  smallest 
increase  contemplated  by  that  gentleman,  and  for 
six  years  take  one-half  of  that  increase  and  add  it 
to  the  $4,200,000  above  stated,  and  you  hav^,  un- 
der the  plan  I  propose,  within  six  years,  an  ag- 
gregate of  $5,450,000  of  surplus,  while  at  the 
same  time  the  sinking  fund  of  $1,500,000  is  si- 
lently and  surely  gnawing  at  the  vitals  of  the  pub- 
lic debt,  and  preparing  the  certain  way  for  its  final 
consignment,  at  the  prescribed  period,  to  a  grave, 
from  which  I  agree  with  the  gentleman  from  Her- 
kimer, there  is  to  be  no  resurrection.  This,  sir, 
is  no  sketch  of  fancy,  no  gathering  of  flowers 
from  the  field  of  imagination;  it  is  simple,  sober 
reality — necessary  results  from  facts  which  can- 
not be  disputed,  and  from  figures  which  cannot  lie. 
Again,  Mr.  Chairman,  we  are  told  and  we  agree 
that  the  canals  are  one  system ;  that  they  are 
parts  of  a  whole.  It  is  on  this  ground  that  the 
Erie  canal,  after  honestly  paying  every  dollar  of 
its  cost,  has  been,  and  is  still  called  on  to  pay,  or 
to  furnish  the  njeans  to  pay,  for  all  the  lateral 
canals.  To  save  the  general  fund  from  the  bur- 
den of  the  cost  of  the  lateral  canals,  that  burden 
has  been  cast  on  the  Erie  on  the  ground  that  all 
were  parts  of  a  system,  members  of  one  body  ; 
and  well  and  nobly  has  she  responded^  the  call 
and  borne  the  burden.  All  we  ask  flw  is  that 
the  principle  be  continued  and  carried  out,  and 
that  the  unfinished  works  be  regarded  as  they  al- 
ways have  been,  as  parts  of  this  great  system, -and 
as  such  that  they  may,  from  the  same  source,  re- 
ceive the  same  aid  and  sustenance  that  has  been 
extended  to  the  other  parts.  And  who  can  com- 
plain of  this  ?  Not  the  tax-payer  for  nothing  is 
asked  of  him.  Not  the  creditor  of  the  state,  for 
he  is  already  superabundantly  secured,  and  his 
security  is  in  no  degree  to  be  affected.  Not  the 
Erie  canal,  for  she  is  able  and  ready  to  answer 
the  call.  No,  sir ;  justice  requires  that  this  call 
should  be  answered,  and  consistency  and  duty 
alike  demand  that  the  system  should  be  com- 
pleted, and  hereafter  that  all  its  parts  should  work 
together  in  harmonious  union,  reciprocally  aid- 
ing and  assisting  each  other,  and  all  dilfusing 
their  blessings  and  their  benefits,  directly  and  in- 
directlv,  throughout  every  part  of  our  proud 
"  Emp'ire." 


891 


1  will  briefly  consider  some  of  the  objections, 
wliich  have  been  urged  by  the  gentlemen  from 
llerkimer  against  the  proposed  amendment,  and 
the  results  it  is  designed  and  calculated  to  pro- 
duce. 1  trust  I  have  already  sufficiently  answer- 
ed the  argument  as  to  the  violation  of  the  public 
faith.  I  iiavo  shown  it  to  rest  mainly  on  a  foun- 
dation of  sand.  It  is  true,  if  it  can  be  proved  that 
a  debt  t'.n.«?htiz  in  '  -12  and  on  which  sundry  pay- 
ments have  been  made  is  the  debt  remaining  un- 
paid at  the  close  of  any  given  number  of  years 
thereafter,  then  it  is  true  that  by  the  act  of  '42, 
the  public  debt  was  to  be  paid  in  22£  years;  but 
if  it  is  impossible  that  such  a  statement  can  be 
true,  then  equally  impossible  is  it  for  the  gentle- 
man to  sustain  his  argument  of  "  violated  faith." 

The  genileman  has  argued  that  it  would  be  un- 
sa;e  lo  limit  the  sinking  lund  to  so  small  a  sum  as 
one  million  and  a  half  of  dollars  j  and  he  argues 
thus  b  'cause  he  apprehended  that  after  ten  years 
the  tolls  may  diminish.  But,  sir,  at  the  same  timt 
the  gentleman  tells  us  that  at  the  lowest  compu- 
tation they  will  increase  to  i-j3,500',OOG  at  the  end 
of  the  ten  years,  and  I  believe  the  gentleman  him- 
self would  hardly  be  willing  to. rise  in  his  place 
on  this  floor  and  assert  a  belief  that  lor  the  re- 
mainder of  our  lerm,  the  thirteen  years  immedi- 
ately ensuing  the  fiist  ten,  the  tolls  would  so  di- 
minish as  in  any  one  of  those  thirteen  years  to 
bring  them  down  to  $2,000  000,  the  annual  sum 
which  we  provide  for  our  sinking  fund  during  those 
thirteen  years.  But,  sir,  it  is  unnecessary  to  dwell 
on  this  point;  th..se  who  heard  the  able  exposi- 
tions Q(  this  matter  by  the  gentleman  from  Krie, 
and  Ihe  gentleman  from  Chautauque,  (Mr.  MAR- 
VIN,) must  regard  these  apprehensions,  if  sincere- 
ly entertain _d,  os  wholly  groundless.  No  one 
who  will  ior  a  moment  look  at  the  map  of  our 
country  and  ponder  upon  the  illimitable  resources 
of  I  he  western  world  beyond  us,  yet  in  its  early 
infancy,  and  notwithstanding  the  immaturity  of 
us  years,  already  exhibiting  what  would  in  anv 
other  country  be  deemed  the  resistless  energy  and 
giant  strength  of  mature  manhood,  no  one"  who 
will  look  at  facts  as  they  are,  and  as  they  are 
certain  to  be,  as  surely  as  time  continues,  can 
unite  in  the  fears  and  forebodings  expressed  by 
that  able,  but,  as  I  respectfully  insist,  or.  irns  oc- 
casion, mi-taken  gentleman. 

Again,  sir,  the  gentleman  has  dwelt  at  length 
and  repeatedly  on  the  great  amount  of  addition- 
al interest  required  by  the  plan  contained  in  thf 
amendment,  and  he  has  wiih  an  appearance  of 
gravity  presumed  to  us  a  statement  showing  the 
amount  of  debt  to  be,  not  only  \hedebt  as  it  exists 
but  that  amount  with  millions  of  interest  added  ; 
as  il,  sir,  in  truth  the  man  who  has  given  his  bond 
dated  this  diy  tor  one  thousand  dollars,  payable  in 
ten  years  with  interest,  is  this  day  a  debtoV  to  the 
amount  of  seventeen  hundred  dollars  !  We  do  not 
pay  ihe  debt  now  for  the  simple  reason  that  we  in 
laci  save  nothing  by  doing  so;  we  retain  and  us* 
the  money— we  pay  our  interest  at  maturity  and 
in  the  meantime  make  profitable  use  ot  our  funds 
Again,  sir,  by  the  very  statement  of  our  proposi- 
tion, the  interest  to  fall  due  hereafter  is  adequate- 
yl  .certainly  provided  lor,  and  then  it  becomes 
wholly  immaterial  in  any  practical  sense;  and  it 
can  in  no  manner  be  regarded  as  the  gentleman's 
lancy  seems  to  view  it  as  some  awful  evil  to  foil 


upon  us  and  strike  us  down  at  a  future  day.  The 
gentleman's  views  on  this  point  seem  to  me  veiy 
analagous  to  those  of  the  man,  who  after  having 
nearly  completed  his  house  should  stop  short  and 
reluse  to  finish  the  roof,  because  forsooth  he  owed 
a  dt-bt  payable  at  a  I  emote  day,  and  he  proposed 
to  invest  the  cost  of  the  roof  in  a  sinking  fund  to 
provide  for  the  payment  of  that  rernoie  debt  and 
its  interest;  Ite  elements  in  the  meantime  hav- 
ing free  accea^po  his  house  and  performing  their 
work  of  destruction  upon  it.  In  truth,  if  the  gen- 
tleman's doctrines  are  sound,  it  would  seem  inev- 
itably to  result,  that  the  better  policy  were  to  sell 
our  canals  at  mce  for  the  amount  of  our  existing 
debt,  because  on  the  gentleman's  computation  ot 
interest  according  to  his  own  plan  we  should  save 
$15,000,000  of  interest.  I  do  not  pretend  to  be 
versed  in  the  mysteries  of  finance;  but  if  all  the 
gentleman's  expositions  of  its  doctrines  are 
correct,  I  for  one  should  desire  to  be  delivered 
from  further  acquaintance  with  a  science  so  oc- 
cult and  so  extraordinary. 

The  plan  of  the  gentleman  himself  assumes  the 
existence  at  the  end  ot  each  of  seveial  years  of 
"deficiencies"  as  he  denominates  them,  and  the 
consequent  addition  of  interest;  our  plan  does  the 
same — there  is  no  difference  in  principle.  In  fact, 
sir,  the  question  and  difference  between  us  is 
purely  one  of  time — and  that  time  merely  the 
brief  space  of  five  years.  He  proposes  to  extin- 
guish the  debt  in  18  years,  we  in  23.  With  his 
plan  of  eighteen  years  the  result  would  be  an  in- 
efficient, teeble,  uncertain  provision  for  such  im« 
provemenis  of  the  Erie  Canal  as  ihe  gentleman 
himself  admits  may  be  required  by  the  most  per- 
suasive considerations  of  duty  and  of  policy  ;  his 
plan  involves  the  abandonment  of  the  unfinished 
canals  for  ten  years  at  least,  and  such  a  delay  un- 
der the  circumstances,  I  regard  as  equivalent  to 
their  abandonment  forever.  When  that  period 
shall  have  expired,  time  and  the  elements  will 
have  accomplished  their  task  of  decay  and  di- 
lapidatio'n — and  those  costly  structures,  on  which 
so  much  of  our  treasure  has  already  been  ex- 
pended will  have  sunk,  as  I  apprehend,  to  rise 
no  more. 

On  the  contrary,  with  the  proposed  plan  of  23 
years,  reasonable  means  are  afforded  to  do  much, 
if  no.t  all  that  may  be  required,  toward  the  Erie 
canal  improvement,  and  to  commence  arid  gradu- 
ally to  continue  the  completion  of  the  Gent-see 
Valley  and  Black  River  canals,  and  thus  lo  per- 
fect our  canal  system  now  so  near  its  consumma« 
tion.  At  the  same  lime  that  these  wise  and  salu- 
tary and  beneficent  results  are  secured,  provision 
the  most  ample,  as  I  have  already  shown,  is  made 
for  our  entire  and  absolute  exoneration  from  pub- 
lic debt. 

The  path  of  duty  then,  Mr.  Chairman,  is  plain 
before  us;  and  why  shall  we  hesitate  to  walk  in 
it  ?  Are  we  called  on  to  refuse  to  enter  it  in  obe- 
dience to  some  favorite  financial  theory,  or  for  the 
purpose  of  gratifying  some  morbid  fancy  or  some 
Apprehension  of  the  bugbear  of  accumulating  in- 
terest? Or  is  it,  sir,  that  we  are  to  be  frightened 
from  it  by  the  cry  of  "  Debt  and  Taxation,"  when 
no  debt  and  no  taxation  are  in  it  or  about  it,  or  can 
by  possibility  enter  it,  shielded  and  guarded  as  it 
is  by  the  secure  barriers  which  the  plan  we  pro« 
pose  throws  around  it  ? 


89:2 


Seriously,    Mr.    Chairman,   I    apprehend    that 
much  of  the  opposition  to  this  plan  arises  from  a 


should  this  unfortunately  be  the  result,  it  has  yet 
to  undergo  the  ordeal  of  the  ballot-box,  and  there 
it  will.  I  believe  and  trust,  be  met  and  over- 
thrown. 


sort  of  "  point  of  honor,"  from  ptide  of  opinion, 
from  a  set  of  ideas  and  sentiments  so  long  enter- 
tained and  dwelt  upon,  as  to  have  become  as  it 
were  second  nature,  and  therefore  proof  against 
the  light  of  truth  and  the  force  of  argument.  Sir, 

STATEMENT  A. 
Showing  the  manner  in  which  a  six  per  cent  stack  will  diminish  by  applying  "  one-half  the  amount  of  the  interest  of 

the  deb*  remaining  unpaid"  to  accumulate  at  six  per  cent  as  a  sinking  fund,  according  to  the  provisions  of  the 

law  ol  184-2^— 


this  opposition  may  succeed,  and  the  plan  of  the 
standing    commiitee   may  be  adopted   here;   but 


No. 

End  of 

Amount  of  debt 

Interest  on  debt  Om;  half  interest 

Interest  on  sink- 

Amount of  sink 

years. 

year. 

unpaid. 
$  cis.  mills. 

unpaid.      on  debt  unpaid. 
$  cts.  mills.     $  cts.  mills. 

ing  fund. 
$cts  mills. 

ing  fund. 
$  cts.  mills-. 

i 

1342 

100 

2 

1843 

98 

6             2 

2 

3 

1844 

95  92 

5  88 

96 

12 

2  08 

4 

1845 

93  75  6S 

5  75  52 

61  84 

24  43 

2  16  32 

5 

1846 

91  50  7072 

5  fr»  5408 

87  5136 

0  37  45P2 

2  24  9723 

ft 

1647 

89  16  73jo 

5  49  0424 

83  0141 

0  50  9576 

2  33  0717 

.  7 

1848 

83  73  4050 

5  35  0041 

78  3347 

0  64  8958 

2  43  3305 

8 

1849 

84  20  3412 

5  20  4043 

73  4681 

0  70  5957 

2  53  0638 

9 

1850 

81  57  1549 

5  05  2204 

63  4068 

0  94  7795 

2  63  1863 

10 

1851 

78  83  4411 

5  89  4292 

63  1430 

10  5707 

2  73  7138 

11 

1852 

75  94  7788 

4  73  0064 

57  6688 

26  9935 

2  84  6623 

It 

1853 

73  02  7300 

4  55  9-267 

51  9766 

44  0732 

2  96  0488- 

13 

1854 

69  94  839-2 

4  38  1638 

46  0546 

61  8362 

3  07  8903 

14 

1<<65 

66  77  9662 

4  19  6903 

36  5634 

80  3096 

3  16  8730 

15 

1856 

63  45  0849 

4  00  6779 

33  5593  ' 

99  3220 

3  21  881* 

16 

1S57 

69  98  8883 

4  80  7050 

26  9016 

2  19  2949 

3  46  1966 

17 

1358 

56  38  8439 

3  59  9332       1  19  9777 

2  40  0667 

3  60  0444 

19 

1859 

52  64  3977 

3  38  3306       1  12  7768 

2  61  6693 

'  3  74  4462 

19 

IStiO 

48  74  9737 

3  15  8638       1  05  2879 

2  84  1361 

3  89  4240 

20 

1861 

44  69  9727 

3  92  4984       0  97  4994 

3  07  5015 

4  05  0010 

21 

1-6-2 

40  48  7717 

2  68  1983       0  89  3994 

3  31  8016 

4  21  2010 

2-2 

1863 

36  10  7226 

2  4-2  1263       0  80  9754 

3  67  0736 

4  33  0491 

23 

IS64 

31  55  151ft 

2  16  6433       0  72  2144 

3  83  3566 

4  65  5710 

24 

1865£ 

29  18  2547 

0  94  6145       0  63  5515 

2  05  3454 

2  36  8969 

25 

1366£ 

24  34  9780 

1  75  0952       0  58  3650 

4  24  9171 

76  65  0220 

2& 

1867J 

19  32  7105 

1  46  0986       0  48  3662 

4  53  9013 

80  67  2895 

27 

1868^ 

14  10  0190 

1  15  96-26       0  38  6542 

4  84  0373 

85  89  9810 

28 

1869  A 

8  66  4199 

0  84  6011       0  28  2003 

5  15  3989 

91  33  6301 

29 

1870i 

3  00  4101 

0  53  9351       0  17  9950 

5  48  0143 

96  99  5899 

30 

1871 

0  0'  064-2 

0  9  0123       0  3  0041 

2  90  9876 

99  93  5816 

Mr-  S'lOVV  should  not  feel  j us.  i  tied  m  continu- 
ing this  debute,  had  he  not  been  alluded  to  by  the 
gentleman  from  Herkimer,  in  a  manner  hardly 
consistent  with  couriesy.  His.  arguments  had  been 
misrepresented.  But  'he  should  not  bd  diverted 
from  the  great  point  at  issue  by  any  personal 
charges.  If  the  gentleman  desired  a  personal  con- 
troversy, he  must  seek  it  in  another  quarter.  Mr. 
S.  pointed  <>«r  t  tie  misrepresentations  of  Mr.  HOFF- 
MAN. He  (Mr.  H  )  said  that  he  (Mr.  S,1  admitted 
that  the  canals  should  pay  me  general  fund  lor  all 
I  hat  was  created  for  their  constiuction.  No  such 
thing.  His  argument  was  entirely  against  this. 
He  had  said  that  Uie  canals  should  pay  what  was 
fairly  ('ue  from  them.  Mr.  S.  recapitulated  his 
argument  u  on  the  salt,  auction  and  steamooai 
duties,  showing  that  the  gentleman  h.ad  misun- 
derstood him.  Mr.  S.  then  refeired  to  the  objec- 
tion  against  his  argument  as  to  tii«  injustice  of 
compounding  the  interest  against  the  canals.  He 
(Mr.  H  )  said  this  was  not  right  as  between  indi 
vuiuals,  because  an  individual  could  sue  tor  his 
money  and  recover  it.  Did  not  that  gentleman 
know  that  even  if  compound  interest  was  made 
the  subject  of  solemn  contracts,  courts  would  de- 
cree it  void  ?  Here  then  lell  the  gentleman's  ar 
guinent  at  once.  As  to  the  justice  ot  charging 
the  canals  with  the  salt  and  auction  duties,  Mr.  S. 
added  to  his  icmarks  of  yes'erday,  authorities 
drawn  from  leports  and  from  the.  law  ol  1841,  in 
full  proof  of  his  o.vn  position,  and  to  show  the 
fallacy  of  the  claim  upon  which  this  article  was 


based.  'J  hai  act  settled  all  accounts  between  the 
two  funds,  and .$,'200,000  was  fixed  as  the  annuity 
which  was  required  to  liquidate  the  debt  between 
the  two  funds.  Where  then  was  your  claim  of  a 
debt  of  $13,000,000?  On  what  principle  of  com- 
putation would  $200 ,000  pay  the  interest  and  sink- 
ing (and  on  $13,000,000?  If  one  act  of  the  Le- 
gislature was  so  sacred  that  it  must  not  be  touched., 
why  not  apply  the  same  principle  to  this  other 
act  ?  Mr.  S.  alluded  to  the  charge  that  he  had 
revamped  old  arguments.  He  did  not  deny  this, 
noi  pretend  lo  claim  originality.  He  had  no  ge- 
nius to  invent  arguments.  He  had  followed  in 
the  tracks  of  that  gentleman  when  he  advocated 
an  enlargement  of  the  canal  to  a  size  sixty  feet  by 
six.  Had  he  (Mr.  S.)  tried  to  be  original,  he  would 
probably  have  done  as  did  that  gentleman,  hut 
while  he  was  original,  he  also  would  have  been 
erroneous  !  Mr.  S.  referred  to  the  complaints  of 
Mr.  H.,  that  he  (Mr.  S.)  had  misrepresented  his 
(Mr.  H  's)  arguments.  He  reviewed  what  he  had 
said  as  to  the  culminating  point  in  the  tolls  of  the 
canal,  and  left  it  to  the  Convention  to  say  whether 
there  had  been  any  such  misrepresentation. 

[Some  explanations  here  followed  between 
Messrs.  HOFFMAN  and  STOW  as  to  a  remark  of 
Mr.  HOFFMAN.] 

Mr.  STOW  proceeded  to  prove  that  his  posi- 
tion as  to  the  incapacity  of  the  present  narrow 
canals  for  large  boats,  was  strictly  correct.  How 
would  you  help  this  difficulty  by  enlarging  the 
locks  ?  As  to  the  probable  diversion  of  the  pro- 


893 


duce  of  the  West  to  New  Orleans,  Mr.  S.  showed 
the  utter  fall, icy  of  the  gentleman's  prediction 
and  argument.  Mr.  S.  proceeded  to  answer  the 
other  objections  to  his  positions  seriatim.  He  de- 
nied the  assertion  of  the  gentleman  that  the  canal 
\v,i>  ;;t  present  large  enough.  On  this  subject  he 
referred  to  the  last  annual  report  of  the  Canal 
Commissioners— to  the  fact  that  boats  were  actu- 
ally detained  and  subjected  to  great  loss  and  to 
other  facts  that  demonstrated  the  truth  of  his  as- 
sertion. He  had  read  from  a  paper  in  Lockport, 
of  the  gentleman's  own  political  faith,  complain- 
ing of  the  great  delay  and  loss  at  that  place  for 
want  of  a  double  set  of  the  combined  locks.  In 
answer,  the  gentleman  had  referred  to  the  lock- 
ages at  Alexander's  lock,  and  said  that  there 
would  be  no  difficulty  in  passing  the  same  number 
.of  boats  at  Lockport.  Did  the  gentleman  suppose 
he  could  make  this  House  believe  that  as  many 
boats  could  pass  through  five  combined  locks  as 
rapidly  as  through  one  ?  He  (Mr.  S.)  referred  to 
demonstrated  facts  to  prove  that  while  the  capa- 
city of  a  single  lock  was  200  lockages,  that  of  the 
combined  locks  at  Lockport  was  but  120.  But 
the  gentleman  says  the  delay  at  Lockport  is  prob- 
ably occasioned  by  the  boatmen  lounging  around 
the  groceries.  Mr.  S.  would  submit  whether  that 
was  an  argument  worthy  of  that  great  subject  ? — 
Mr.  S.  said  the  gentleman  had  repeated  this  mor- 
ning the  charge  that  all  this  was  got  up  by  the 
"  shrieks  of  locality."  Mr.  S.  had  read  from  the 
paper  that  followed  implicitly  the  creed  of  that 
gentleman.  Did  he  mean  to  charge  that  the 
editor  of  that  paper  had  put  forth  deliberate  false- 
hoods to  keep  up  this  shriek  of  locality  ?  Mr.  S. 
had  heard  these  shrieks  of  locality  before.  There 
was  a  time  wr.on  these  shrieks  clamored  for  the 
termination  of  the  Black  River  canal  at  the  vil- 
lage of  Herkimer.  But  that  time  has  passed — 
that  canal  terminated  at  another  "  locality,"  and 
since  then  nothing  but  groans  were  heard  from 
Herkimer  against  that  canal.  Mr.  S.  further  an- 
swered the  position  of  the  gentleman  that  the 
present  canal  was  sufficient  for  its  present  busi- 
ness. He  referred  him  to  authority  which  he 
would  not  question — himself.  Mr.  S.  read  from 
the  report  of  Mr.  HOFFMAN  in  1835,  where  he 
proved  that  the  canal  could  not  be  deepened  to 
five  feet  water  unless  it  was  widened  to  an  extent 
of  at  least  sixty  feet.  He  also  read  from  reports 
of  other  state  officers,  all  proving  the  same  fact, 
that  if  the  canal  was  deepened  it  must  be  enlarg- 
ed. Mr.  S.,  in  conclusion,  commented  on  the 
strange  perversion  of  an  allusion  made  by  him 
(Mr.  S.)  yesterday,  to  the  eulogy  passed  upon  De 
Witt  Clinton  by  the  Governor  of  Gibraltar.  Upon 
that  allusion  the  gentleman  had  based  a  charge 
that  he  (Mr.  S.)  had  advocated  a  British  debt 
funding  system  !  Truly  the  gentleman's  imagi- 
nation had  reached  the  highest  flight  it  was  capa- 
ble of.  Why  that  gentleman  himself  the  other 
day  called  De  Witt  Clinton  that  great  man,  and 
was  he  now  so  jealous  that  he  could  not  bear  to 
hear  his  fame  pronounced  by  others  ?  Mr.  S. 
commented  upon  this,  and  also  upon  the  other 
strange  positions  advocated  by  the  -gentleman 
from  Herkimer,  who  appeared  to  have  lost  him- 
self in  compound  interest  and  the  multiplication 
table. 

Mr.  GARDINER  desired  to  say  a  few  words  in 


reference  to  the  dispute  between  the  gentle- 
man from  Erie  and  Herkimer — having  been  per- 
sonally appealed  to  on  the  subject  by  the  gentle- 
m  'ii  from  Erie.  He  lived  at  Lockport,  the  place 
where  these  detentions  on  the  canal  were  said  to 
occur.  Gentlemen  should  understand  that  at  that 
place,  there  were  five  locks  rising  consecutively 
one  above  the  other,  and  so  combined  that  they 
must  be  used  altogether.  In  consequence  of  the 
removal  of  the  old  locks  there  was  now  but  one  tier 
and  there  can  be  at  the  utmost  but  twro  boats  pass- 
ed through  at  a  time.  It  was  therefore  necessary  so 
to  arrange  the  lockages  so  as  to  lock  through 
boats  arriving  from  one  direction  for  one  hour,  and 
those  arriving  from  the  contrary  direction  an- 
other hour,  and  so  on  alternately.  Consequently 
boats  were  obliged  to  wait  until  their  hour  had 
arrived,  and  if  there  was  a  crowd  of  boats,  might 
be  detained  beyond  their  hour.  He  stated  what 
he  knew  and  he  had  seen  from  day  to  day,  an  ac- 
cumulation of  boats  numbering  from  five  to  twen- 
ty detained  there  from  five  to  six  hours.  This 
was  not  uncommon,  and  he  left  the  Convention 
to  draw  its  own  conclusion  from  the  facts. 

Mr.  HOFFMAN  said  that  the  general  good 
temper  with  which  the  gentleman  from  Erie  had 
discussed  this  question  to-day,  required  that  he, 
(Mr.  H.)  should  express  himself  with  equal  good 
humor.  It  had  always  been  a  great  satisfaction 
to  him,  whenever  he  heard  any  man  misrepresent 
him,  to  call  his  attention  to  it  at  the  time,  in  or- 
der that  he  might  have  an  opportunity  of  correct- 
ing it.  He  (Mr.  H  )  had  always  endeavored  to 
act  with  becoming  courtesy  in  debate — he  had 
never  had  any  personal  controversey  in  debate 
with  any  man,  and  he  never  would  have,  so  long 
as  he  supposed  that  by  calling  his  attention  at  the 
time  to  any  erroneous  statement,  he  would  cor- 
rect them,  but  he  did  not  feel  authorized  to  go 
further.  When  as  he  (Mr.  H.)  understood  him, 
the  gentleman  from  Erie,  had  misrepresented  him 
he,  (Mr.  H.)  called  his  attention  to  the  fact  and 
asked  him  to  correct  it.  This  Mr.  H.  understood 
him  not  to  do.  Let  that  pass  however,  he  would 
not  refer  to  it  again.  He  was  not  disposed  to  en- 
ter upon  the  argument  again,  as  to  the  capacity  of 
the  locks.  He  had  shown  by  historical  results  what 
a  poor  old  single  lock  does,  a  little  westofSche- 
nectady  ;  and  he  knew  how  much  better  it  might 
perform,  if  properly  improved.  The  gentleman 
from  Erie  had  supposed  that  he  had  high  authori- 
ty in  saying  that  200  lockages  would  be  the  max- 
imum of  the  capacity  of  a  lock.  There  had  been 
a  great  many  maximums  on  that  canal  which  had 
been  transcended,  and  in  performances  vastly  ex- 
ceeded the  limits  set  upon  tiiern.  By  the  wisdom 
of  the  state  officers,  in  his  judgment,  from  the 
sworn  results  in  the  public  offices,  three  minutes 
was  sufficient  to  pass  a  boat  through  a  lock,  and 
600  minutes  would  be  practically  sufficient  to 
despatch  200  boats.  He  knew  that  this  was  an 
extreme  case,  but  it  would  be  practical,  and  if 
that  one  single  lock  to  which  he  had  alluded, 
could  get  along  with  30,000  lockages  in  a  year, 
although  all  that  the  gentleman  from  Niagara 
(Mr.  GARDNER)  stated  might  be  true,  no  man 
could  induce  him  to  believe  that  the  detention  at 
Lockport,  with  only  half  that  number  of  lock- 
ages, could  be  serious,  if  sufficient  attention  and 
care  was  paid  to  working  the  locks.  He  did  not, 


894 


therefore,  feel  himself  removed  at  all  from  his 
position  that  although  combined  locks  might  not 
be  as  efficient  as  single  locks,  yet  for  a  series  of 
years  the  combined  locks  at  Lockport,  properly 
worked  and  improved,  would  answer  all  the  pub- 
lic purposes.  Mr.  H.  said  that  he  said  enough  on 
the  salt  tax,  but  in  reply  to  the  gentleman, he  re-as- 
serted the  fact  that  the  legislature  and  the  financial 
officers  of  the  state  had,  through  aseries  of  years, 
recognized  the  debt  due  from  the  canals  to  the 
general  fund  on  account  of  the  advances  made  to 
them  in  the  shape  of  auction  and  salt  duties.  Mr. 
H.  insisted  that  bv  the  plan  of  the  committee 
there  would  be  continually  afforded  means  for  the 
improvement  of  the  canals  tor  temporary  pur- 
poses until  sufficient  means  should  be  provided 
for  its  proper  enlargement.  He  denied  that  he 
had  ever  expressed  the  idea,  and  he  knew  he 
never  thought  it, -that  a  large  boat  could  be  drawn 
as  well,  as  swiftly,  or  as  easily  through  a  small 
channel  as  a  large  one.  But  the  facts  prove  that 
a  very  large  boat  can  with  considerable  facility 
be  drawn  through  the  present  canal.  $2,500,000 
will  complete  a  line  of  enlarged  locks  from  Alba- 
ny to  Buffalo,  if  is  thought  advisable,  and  raise 
the  canal  banks  so  as  to  carry  five  feet  water. 

Mr.  WORDEN  :  If  you  get  five  feet  water  will 
there  be  any  additional  width  ? 

Mr.  HOFFMAN :  Precisely  such  an  increase 
of  width  as  the  present  slopes  will  give  you.  He 
planted  himself  here  upon  the  distinct  position 
that  the  canal  could,  -without  extraordinary  ex- 
pense, be  made  sufficient  for  present  use,and  any 
increase  that  may  reasonably  be  hoped  for.  He 
insisted  that  it  was  better  to  prepare  for  the  en- 
largement than  at  the  expense  of  $10,000,000  of 
interest,  by  removing  the  debt  further  down. 

Mr.  T1LDEN  moved  that  the  committee  rise 
Agreed  to. 

And  the  Convention  took  a  recess. 


AFTERNOON  SESSION. 

Mr.  TILDEN,  having  the  floor,  addressed  th< 
committee  in  support  of  the  projet  of  the  finan 
cial  committee. 

Mr.  STRONG  then  obtained  the  floor,  and  the 
committee  rose. 

Adjourned  to  83  o'clock  to-morrow  morning. 


FRIDAY,  (92nd  day)  Sept.  18th. 
Prayer  by  Rev.  Dr.  POTTER  . 

The  PRESIDENT  laid  before  the  Convention 
communication  of  rather  a  rambling  or  indefinit 
character,  from  a  Mr.  Georgo  Lawaon,  of  Hainil 
ton  county.  He  suggested  in  it  a  good  many  mat 
ters  for  the  consideration  ot  the  Convention,  an 
commented  upon  many  others.  He  complame 
bitterly  of  the  length  of  time  which  the  Conven 
tionvhad  consumed  upon  matters  of  little  or  ri 
importance.  As  to  whether  the  judges  should  b 
elected  or  appointed,  he  thought  was  a  very  im 
material  mater;  but  it  was  of  considerable  itr 
portance  whether  they  were  honest  and  able,  o 
whether  they  were  dishonest  and  stupid.  He  sai 
that  the  duties  of  surrogate  ought  lobe  discharge 
by  the  overseers  of  the  poor,  and  that  the  office 
surrogate  ought  to  be  abolished,  and  a  good  man 

others 

Mr.  HOFFMAN  moved  to  dispense  with  th 


uriher   reading  ot  it,  and  thai    it  belaid   on  the 

ble.     This  morion  was  lost. 

The  memorial  &c.  was  then  read  through.     In 

Mr.  Lawson  snil  that  he  had  not  consulted  his 
eiijhbois  on  this  subject,  (or  they  were  all  dead, 
much  laughter,]  and  he  was  surrounded  by  a 
econd  generation  !  [We  believe  he  is  nearly  90 
ears  old  ]  The  paper  was  laid  on  the  table. 
OATHS  AND  AFFIRMATIONS. 

Mr.  RHOADES,  from  a  majority  of  committee 
lo  9,  made  the  following  report: 

§  1.  Members  of  the  legislature  and  all  officers,  execu- 
ve  and  judicial,  except  such  inferior  officers  as  may  be 
y  law  exempted,  shall,  before  they  enter  on  the  duties  of 
icir  respective  offices,  take  and  subscribe  the  following 
ath  or  affirmation: 

I  do  solemnly  swear  (or  affirm,  as  the  case  may  be.) 
lat  1  will  support  the  constitution  of  the  United  States, 
nd  the  constitution  of  the  state  of  New  York;  and  that  I 
/ill  faithfully  discharge  the  duties  of according  to 

e  best  of  my  ability. 

A. »d  no  other  oath,  declaration  or  test  shall  be  required 
s  a  qualification  for  any  office  of  public  trust. 

Mr.  CORNELL  from  the  same  committee,  made 
he  following  minority  report,  which  wasalsodis- 
>osed  of  as  was  the  majority  report : 

?j  1.  No  man  shall  be  deemed  incompetent  as  a  witness 
i  any  court,  matter  or  proceeding,  on  account  of  his  opin- 
ons  on  the  subject  of  religion,  nor  shall  any  witness  be 
uestioned,  nor  any  testimony  be  taken  or  received  in  re- 
ition  thereto,  either  before  or  alter  such  witness  shall 
iave  been  sworn  or  affirmed. 

Both  reports  were  ordered  to  be  printed,  and 
ef'ened  to  the  committee  of  the  whole. 

DEBATE  UPON  MR.  HOFFMAN'S  TWO  REPORTS. 

Mr.  RUSSELL  said  that  when  he  was  up  the 
ither  day,  he  stated  that  great  suspicion  existed 
n  the  public  rnind  that  there  were  some  gentle- 
men now  in  this  Convention,  that  were  desirous 
)f  defeating  all  i;s  efforts  and  objects  by  their  ever- 
asting  and  ridiculous  talk  upon  every  conceivable 
subject.  Now  if  gentlemen  here  were  honest — 
(much  laughter) — and  honestly  desired  to  work — 
^rnore  laughter)— why  then  they  would  vote  for  a 
resolution  he  was  about  to  offer.  It  was  as  follows : 

Resolved,  That  the  committee  of  the  whole  be  instruct- 
ed to  report  to  the  Convention,  on  or  beiore  the  hour  of 
four  o'clock,  p.  m  this  day,  the  two  articles  reported  by 
the  committee  on  finance,  now  referred  to  the  committee 
of  the  whole,  with  the  amendments  proposed  theieto,  or 
to  be  proposed  before  that  time;  and  that  the  Convention 

proceed  on  the day  of  September  instant,  at  10  o'clock 

a.  m.,  to  vote  upon  amendments  and  articles,  and  that  no 
new  amendments  shall  be  thereafter  proposed. 

Mr.  R.  said  that  he  had  purposely  left  a  blank 
f<r  trie  day  on  which  all  debate' was  to  cease  in 
Convention. 

Mr.  PATTERSON  said  that  he  objected  to  the 
latter  part  of  the  resolution,  and  it  ought  to  be 
left  out.  He  had  an  amendment  to  offer  to  the 
second  section,  and  this  resolution,  if  carried, 
would  cut  him  off'  from  doing  so. 

Mr.  RUSSELL  agreed  to  strike  out  the  latter 
part  of  'he  resolution. 

Mr.  HUTCHINSON  moved  to  fill  the  blank 
with  "  the  22d"  inst.  He  thought  that  they  then 
ought- to  begin  voting  on  this  article. 

Mr.  HOFFMAN  said  that  this  course  was  ex- 
ceedingly unjust  and  improper  And  he  would 
remind  Mr.  RUSSELL  and  others  that  the  second 
report  of  this  committee  No.  3,  on  which  it  was 
now  proposed  to  limit  all  debate,  had  not  been 
discussed  in  Convention  in  any  way  for  a  single 


895 


moment.     He  would  suggest  that  so  much  of  the 
report  as  related  to  that  article  should  be  omitted. 

Mr.  ANGEL  said  that  he  really  would  not  con- 
sent to  have  the  2d  article  included  in  this  reso- 
lution. It  contained  very  important  propositions, 
which  would  have  the  effect  of  changing  the 
C"U'se  of  our  government ;  and  they  ought  not  to 
be  decided  without  thorough  debate.  The  ut- 
most latitude  ought  to  be  given  to  it. 

Mr.  RUSSELL  replied  that  his  resolution  did 
not  propose  to  limit  debate  in  the  Convention  — 
He  proposed  to  take  these  articles  away  from  de- 
bate in  committee  of  the  whole;  but  they  could 
be  legitimately  and  properly  debated  in  Conven- 
tion, although  riot  a  single  vote  would  be  changed 
by  continuing  the  discussion,  no  matter  how  pro- 
tracted it  might  be.  The  members  have  all  fully 
examined  and  made  up  their  minds  upon  it. 

Mr.  CHAMBERLAIN  believed  there  were 
very  few  gentlemen  that  desired  to  speak  on  the 
subject  before  the  committee,  and  'they,  himself 
among  the  number,  were  those  who  had  not  ob- 
strucfed  the  business  of  the  Convention  j  on  the 
contrary,  they  had  sat  for  3£  months  listening  to 
the  speeches  of  others,  and  therefore  should  not 
now  be  thus  cut  off'.  He  suggested  that  the  reso- 
lution should  lie  over  until  to-morrow. 

Mr.  RUSSELL   acceded,  and  the  resolution 
was  laid  on  the  table. 

RIGHTS  AND  PRIVILEGES. 

Mr.  BRUCE  offered  the  following  resolution. 
He  said  the  Convention  had  passed  articles  defi- 
ning the  powers  and  duties  and  privileges  of  the 
Executive,  the  Legislative  and  Judicial  Depart- 
ments, and  before  adjourning  they  should  say  who 
the  people  were,  and  what  were  their  powers, 
privilege--,  an*i  duties  : 

Resolved,  That  the  Convention  will,  after  disposing  of 
the  report  of  standing  committee  No.  3,  next  pass  to  the 
consideration  of  the  report  ol  committee  No.  4,  "on  the 


elective  franchise,  the    qualification 
office." 


to    vote,  and  hold 


Mr.  SWACKHAMER  moved  to  lay  the  reso- 
lution on  the  table. 

Mr.  RHOADES  called  for  the  yeas  and  nays, 
and  there  were  yeas  54,  nays  43.  So  the  resolu- 
tion was  laid  on  the  table. 

Mr.  LOOMIS  desired  to  submit  a  proposition 
in  relation  to  the  financial  reports.  It  was  evi- 
dent that  there  was  a  wide  difference  of  opinion 
between  members  on  this  important  subject.  It 
had  been  our  good  fortune  hitherto  to  avoid  the 
array  of  political  parties  and  to  adopt  what  had 
been  agreed  to  by  most  decided  majorities.  He 
trusted  such  a  result  would  be  attained  on  this  fi- 


been  submitted.     Mr.    L.    further   explained  his 
proposition,  which  is  as  follows : — 

•\rm-ndtiierepoit  by  striking  out  of  section  1,  the  first 
six  lines,  and  insert  as  follows: 

(5  1.  After  paying  the  expense*  of  collection,  superinten- 
dence, and  ordinary  repairs,  then-  sh-.iil  be  appropriated 
and  set  apart,  out  of  the  monies  of  the  S'ate  canals,  in  each 
y«  ar,  commencing  on  the  first  day  ot  June,  1846,  the  sum 
of  $1,300  000,  until  the  first  day  of  June,  1835  and  from  that 
time  the  sum  of$l  700,000  in  each  year  as  a  sinking  fund 
to  pay  the  interest,  &c. 

Strike  out  sections  2  and  3. 

In  section  4,  strike  out  the  first  six  lines  and  insert  as 
follows:— 

^  2.  Alter  complying  with  the  provisions  of  the  first  sec- 
tions of  this  article,  there  shall  be  appropriated  and  set 
apart  out  ot  the  surplus  revenues  of  the  state  canals  in 
each  year  commencing  on  the  1st  day  ol  January,  18<!6,  the 
sum  of  $300  000,  until  the  time  when  a  sufficient  sum  shall 
have  been  appropriated  and  set  apart  under  the  said  first 
section,  to  pay  the  interest  and  extinguish  the  entire  prin- 
cipal of  the  canal  de'it,  and  after  that  period  then  the  sum 
ot  one  million  and  five  hundred  thousand  dollars  in  each 
year,  as  a  sinking  tund  to  pay  the  interest,  &c. 

Line  16  strike  out  "$500,000"  and  insert 
"  sinking  fund." 

Line  18  strike  out  "  second"  and  insert  "first." 
Insert  a  new  section  as  follows  : — 

§  3.  The  surplus  revenues  of  the  canals,  after  complying 
with  the  provision  of  ihe  two  last  preceding  sections,  shall 
be  appropriated,  at  the  discretion  of  thi>  legislature,  to  de- 
fray the  ordinary  expenses  of  government,  and  for  other 
purposes;  but  no  lnw  shall  be  passed  appropriating  or 
pledging  lor  the  construction  or  improvement  of  any  canal 
or  rail  road,  any  part  ol  said  revenues  beyond  those  of  the 
year  current  at  the  time  of  passing  such  law. 

Mr.  WORDEN  said  that  if  he  understood  this 
:>lan  of  Mr.  LOOMIS'S,  it  appropriated  a  certain 
amount  of  money  out  of  the  canal  revenues  to 
pay  the  debt  of  the  state,  the  canal  debt,  and  the 
general  fund  debt,  leaving  the  surplusses  to  be 
disposed  of  by  the  legislature  as  they  might 
think  proper  to  direct.  Now  he  (Mr.  W.)  thought 
that  the  argument  of  the  gentleman  would  apply 
with  equal  force  to  entrusting  the  legislature  to 
taking  care  of  the  public  debt.  But  he  would 
not  debate  this  question,  as  he  could  not  at  pres- 
ent fully  understand  its  whole  bearing.  He  rose 
to  offer  the  following  additional  section  to  the 


nancial  question, 
any    action    that 


He  should  seriously  deprecate 
should   array    either    one    of 


the  great  political  parties  against  the  Constitution, 
on  account  of  the  article  we  might  adopt.  To 
avoid  this  disastrous  result,  he  had  prepared  a 
modification  of  the  report  of  the  standing  com- 
mittee, which  he  trusted  would  meet  witli  favor 
as  a  compromise  measure.  Mr.  L.  referred  to  the 
extreme  views  of  members  and  explained  what 
the  effect  of  his  measure  would  be.  He  propos- 
ed to  establish  such  a  sinking  fund  as  would  pay 
the  canal  debt  in  the.  time  contemplated  by  the 
acts  of  lb-i'2  and  1844,  leaving  payment  of  the  ge- 
neral fund  to  be  postponed  to  a  period  about  equal 
to  that  proposed  by  the  rival  plans  which  had 


plan  of  Mr.  LOOMIS  : — 

— .  The  residue  of  the  surplus  revenues  of  the  canals 
after  complying  with  ;he  provisions  herein  contained,  shall 
until  the  canal  debt  of  this  state  and  interest  is  fully  paid, 
be  applied  and  appropriated  to  the  completion  of  the  un- 
finished canals  of  this  state. 

Mr.  PATTERSON  moved  to  refer  the  two,  to 
the  committee  of  the  whole  having  charge  of  the 
financial  reports. 

Mr.  STOW  begged  only  to  say,  that  in  the  a- 
mendment  he  had  offered,  he  had  acted  in  a  spirit 
of  compromise.  It  was  not  by  any  means  the 
proposition,  which  his  own  judgment  dictated  as 
that  demanded  by  the  true  interests  of  the  canals. 
In  that  same  spirit  of  compromise,  he  desired  to 
examine  these  propositions  of  his  friend  from 
Herkimer — and  to  do  so  fully  and  impartially. — 
While  willing  to  agree  to  a  compromise  on  this 
subject,  he  by  no  manner  of  means  admitted  that 
the  friends  of  the  canal  were  compelled  to  sub- 
mit to  a  hard  compromise.  They  came  not  here 
;i>  ;in  insolvent  debtor  or  to  beg  favor  ;  they  had 
the  power  to  appeal  to  a  higher  power  than  this 
Convention.  But  Mr.  S.  would  not  pursue  this 
subject.  He  only  asked  that  this  plan  just  sub- 
mitted, might  not  be  pressed  to  a  vote,  until  he 


896 


with  others  hadad  full  time  ht  o  examine  its  ope- 
ration in  all  its  bearings. 

Mr.  PATTERSON  suggested  that  the  proposi- 
tion should  be  printed  immediately  and  laid  on 
their  tables  this  afternoon. 

Mr.  STOW  sincerely  hoped  so  ;  for  he  wished 
to  have  a  night  to  sleep  upon  it. 

Mr.  RICHMOND  thought  that  all  this  subject 
might  with  great  propriety  be  laid  upon  the  table 
for  a  day  to  give  time  for  reflection  and  the  Con- 
vention c^uld  in  the  mean  time  take  up  some 
new  subject. 

Cries  of  "Oh  !  no  !  no  !  " 

Mr.  STOW  was  very  much  of  Mr.  RICHMOND'S 
opinion. 

The  question  was  then  put  on  referring  Mr. 
LOOMIS'S  proposition  to  the  committee  of  the 
whole  and  on  printing  it.  Both  motions  were  car- 
ried. 

Mr.  CHAMBERLAIN  then  moved  that  the 
Convention  proceed  to  the  unfinished  business ; 
and  accordingly  it  went  into  committee  of  the 
whole  on  the  report  on 

THE  CANAL  FINANCES. 

Mr.  W.  TAYLOR  resumed  the  chair. 

Mr.  STRONG  took  the  floor.  He  apologized 
for  intruding  himself  upon  the  Convention.  He 
had  determined  to  be  silent  until  yesterday.  No 
one  had  before  then  Spoken  in  favor  of  the  report, 
except  the  chairman,  (Mr.  HOFFMAN)  and  Mr. 
S  considered  that  that  gentleman  had  been  fully 
answered.  But  when  the  gentleman  from  New 
York  (Mr.  TILDEN)  took  the  floor,  Mr.  S.  began 
to  be  alarmed,  and  thought  it  might  be  well 
enough  for  him  to  show  up  some  of  the  positions 
of  that  gentleman. 

Mr.  S.  said  that  gentleman  started  off  upon 
pretty  high  grounds,  by  saying  he  was  willing  to 
do  all  he  could  do  to  advance  the  interests  of 
trade  and  commerce.  This  was  all  right,  but 
before  he  got  through,  Mr.  S.  was  sorry  to  find 
that  all  this  was  nothing  but  lip  service.  He  went 
on  to  show  that  New  York  was  deeply  interested 
in  the  prosperity  of  the  Erie  canal.  Mr.  S.  said 
all  this  was  true.  The  interests  of  New  York 
city  were  vitally  connected  with  tha  canal.  He 
was  glad  to  hear  that  this  avowal  came  from  a  re- 
presentative from  that  city.  Mr.  S.  wished  to 
appeal  to  the  delegates  from  that  city,  and  show 
the  truth  of  this  assertion  of  their  colleague.  He 
referred  to  the  action  of  1835.  TJie  mighty  west 
was  seeking  to  pour  its  immense  wealth  into  the 
lap  of  the  Queen  of  Cities.  The  State  officers — 
Mr.  HOFFMAN  among  the  number — represented 
these  facts  to  the  Legislature,  and  urged  the  ne- 
cessity of  the  enlargement  of  the  Erie  canal. — 
The  "Legislature  believed  this,  and  passed  the 
law.  The  people  sanctioned  that  action,  and  he 
asked  when  they  had  repudiated  that  policy  ? — 
Never.  Why  then  this  effort  to  fix  this  iron  rule 
in  the  Constitution  that  would  prohibit  the  con- 
summation of  that  work  ?  The  only  reason  he 
could  conceive  of,  was  that  gentlemen  began  to 
perceive  their  boasted  policy  of  1842  was  weak- 
ening and  needed  this  bolstering  up.  The  people 
began  to  perceive  that  their  debt  was  within  their 
grasp  and  that  there  were  surplusses  subject  to 
the  direction  of  the  Legislature. 

Mr.  S.  next  answered  the  assertion  of  that  gen- 
tleman, that  the  canal  had  never  been  excavated 


to  its  original  depth.  This  was  a  broad  charge, 
brought  at  one  fell  swoop  against  Canal  Commis- 
sioners, Engineers,  Contractors,  &c.  Mr.  S. 
could  tell  the  gentleman  there  was  not  the  sem- 
blance of  truth  in  this  charge.  And  he  said  that 
in  1842  the  canal  was  first  bottomed  out.  Why, 
any  boy  on  the  line  of  the  canal  would  laugh  at 
such  an  assertion.  They  knew  that  every  spring 
since  it  was  made,  the  Superintendents  bottomed 
out  the  canal. 

Mr.  S.  next  commented  upon  the  answers  to 
the  allegations  of  Messrs.  STOW  and  GARDNER, 
about  the  detention  at  Lockport.  The  cnairman 
of  the  committee  and  his  lieutenant  had  given  a 
most  conclusive  answer  to  this,  and  what  was  it? 
Why  that  the  lock-tenders  were  lounging  around 
the  groceries.  Why,  did  the  gentlemen  believe 
the  Canal  Board  would  keep  in  lock-tenders  that 
would  do  that  ?  Mr.  S.  did  not,  if  they  did.  Such 
a  pretence  was  preposterous.  But  the  gentleman 
from  New  York,  admitting  the  delay,  said  he 
could  remedy  this  by  marshalling  the  boatmen 
into  line  !  Mr.  S.  would  like  to  see  him  trying  to 
marshal  the  boatmen  on  the  Erie  canal  into  line. 
He  rather  thought  the  gentleman  didn't  know 
much  about  these  boatmen.  Why,  it  would  take 
more  men  to  marshal  them  into  line,  than  would 
be  necessary  to  kill  every  live  Mexican  !  They 
were  rather  rough  customers  to  handle  in  that 
way. 

Mr.  S.  said  the  gentleman  had  got  so  far  when 
a  friend  put  into  his  hands  a  printed  copy  of  his 
speech  in  advance.  Here  it  is,  (holding  up  a 
copy  of  the  New  York  Democrat,  yesterday  laid 
on  the  tables  of  members,)  and  Mr.  S.  read  the 
whole  of  his  speech  an  hour  and  a  half  before  he 
got  through  !  Here  was  all  about  Alexander's 
lock,  the  time  to  pass  a  lock,  and  all  the  tolls — in 
fact  every  thing  the  gentleman  said,  except  the 
little  trimmings  thrown  in,  like  about  "marshal- 
ling the  boatmen  into  line,"  and  such  matters. 
This  was  something  new  to  him — for  a  man  to 
get  his  speech  printed  before  it  was  delivered. 
He  hoped  the  practice  would  not  grow;  and  then 
he  would  not  object. 

Mr.  S.  remarked  at  some  length  on  the  proposi- 
tion of  the  committee  to  improve  the  canal  by 
lengthening  the  locks  and  bottoming  out  the  ca- 
nal, so  as  to  give  five  feet  of  water.  He  said  it 
would  be  a  miserable,  contemptible  canal,  unfit 
for  large  boats.  It  was  no  use  to  bottom  it  below 
the  bottom  of  the  locks.  The  banks  would  have 
to  be  strengthened.  A  break  last  spring,  in  the 
town  where  he  resided,  cost  six  thousand  dollars. 
It  would  be  far  better  to  complete  the  enlarge- 
ment, on  the  plan  adopted  by  the  Canal  Board. 

Mr.  S.  next  commented  on  the  New  York  and 
Erie  railroad.  He  said  the  members  from  the  Erie 
canal  counties  had  always  been  liberal  with  other 
portions  of  the  State.  They  had  voted  for  the 
three  million  loan,  believing  it  justly  due  to  the 
southern  counties.  He  only  asked  gentlemen  to 
be  as  liberal  as  they  had  been. 

Mr.  S.  said  he  had  something  to  say  in  relation 
to  the  act  of  1842 — the  stop  doctrine,  so  called. 
He  had  heard  it  refeired  to  so  often,  in  the  Legis- 
lature, and  in  this  Convention,  that  it  had  become 
common-place  words  with  him.  He  wished  to 
know  what  there  was  about  it  ?  what  magic  there 
was  in  the  act  ?  what  binding  force  more  than  any 


897 


other  act  on  our  statute  book  ?  It  maybe  altered 
or  repealed.  But  it  is  said  this  act  is  the  Simon 
Pure  principle  of  democracy ;  and  he  supposed 
gentleman  from  llerkimer  (Mr.  HOFFMAN) 
had  studied  and  pondered  over  it,  until  it  had  be- 
come his  evening  and  morning  prayer  book,  and 
that  a  violation  of  one  line  would  destroy  his  de- 
mocracy and  ruin  the  state. 

Mr.  S.  denied  that  this  act  had  been  sanctioned 
by  the  people.  The  Convention  may  put  the  iron 
rule  in  the  Constitution,  but  you  cannot  bind,  for 
any  length  of  time,-the  energies  and  enterprise  of 
the  people.  They  will  break  through  all  the  pa- 
per checks  and  bars  that  you  place  in  their  way, 
by  rejecting  this  Constitution,  or  by  calling  ano- 
ther Convention  to  strike  them  out. 

Mr.  S.  said  he  had  a  few  remarks  to  make  in 
relation  to  the  Black  River  canal.  When  the  en- 
largement of  the  Erie  canal  was  determined  upon, 
the  Canal  Commissioners  reported  to  the  Legis- 
lature that  in  order  to  supply  the  enlarged  canal 
with  sufficient  water,  it  would  be  necessary  to 
construct  a  feeder  and  navigable  canal  from  Black 
River  to  the  Erie  canal ;  and  in  1836  an  act  was 
passed  authorizing  the  construction,  thus  pledg- 
ing the  faith  of  the  state  to  perform  the  word. 

Mr.  S.  said  he  was  pleased  to  have  the  privilege 
of  addressing  the  gentleman  from  Jefferson,.  (Mr. 
DAW  FORTH,  who  was  occupying  the  chair  at  the 
time.)  He  was  surprised  to  hear  that  gentleman 
say,  a  day  or  two  since,  that  he  would  vote  for 
the  completion  of  the  Black  River  canal,  and  no- 
thing more.  Coining  as  this  did  from  a  repre- 
sentative of  Jefferson  county,  through  which  this 
canal  runs,  he  could  not  view  it  in  any  other  light 
than  a  narrmv.  selfish  policy,  very  different  from 
that  which  has  heretofore  been  extended  to  that 
work  by  the  members  from  Western  New  York. 
You  could  not  have  passed  the  bill,  nor  obtained 
a  single  loan,  had  you  not  received  the  support 
of  the  members  of  the  west ;  and  now  you  say  you 
will  vote  for  that  canal  and  abandon  all  others  ! 
A  poor,  miserable,  selfish,return  for  our  liberality! 

Mr.  S.  said  he  would  ask  the  attention  of  the 


Genesee  Valley  canal.  Whether  this  work  should 
have  been  commenced,  is  not  the  question  now. 
The  work  has  been  begun,  and  something  over 
three  millions  of  dollars  has  been  expended  upon 
the  undertaking.  Shall  the  work  be  suffered  to 
go  to  decay  ?  Shall  the  money  there  spent  be  ut- 
terly lost  ?  or  shall  the  state,  in  the  exercise  of  a 
wise  discretion  and  providential  economy,  appro- 
priate at  least  something  towards  the  completion 
of  a  canal,  which  is  regarded,  if  not  by  the  entire 
state,  yet  by  a  large  and  populous  district,  as  re- 
spectable and  influential  as  any  one  represented 
on  this  floor,  as  a  work  of  permanent  necessity  to 
its  inhabitants? 

Mr.  S.  said  the  solemn  faith  of  the  state  is  in 
reality  pledged  to  the  completion  of  this  canal. 
Let  us  not  wantonly  break  it.  Can  gentlemen 
deny  that  if  the  canal  were  extended  to  the  point 
originally  intended  for  its  termination,  it  would 
go  into  the  heart  of  a  region  of  excellent  pine 
lumber,  which  is  carried  some  3U  or  40  mileS  by 
land  to  the  canal  ?  If  the  canal  was  completed, 
that  lumber  would  find  a  market  throughout  the 
state,  and  even  at  tide  water,  and  our  great  me- 
tropolis. 


Mr.  S.  said  he  had  a  few  words  to  say  in  rela- 
tion to  the  act  of  1835,  authorising  the  enlarge- 
ment of  the  Erie  canal,  and  he  spoke  from  his 
own  knowledge,  having  had  the  honor  of  a  seat 
on  this  floor  at  the  time.  The  leading  member 
from  the  city  of  New  York  was  a  warm  advocate 
of  the  bill.  He  said  the  enlargement  was  neces- 
sary to  secure  the  trade  of  the  Western  States  to 
the  city  of  New  York— that  if  this  work  was  not 
prosecuted  with  due  diligence,  the  products  of 
that  fertile  region  would  find  a  market  through 
some  other  channel,  and  this  state  would  lose  tolls 
which  it  might,  by  the  completion  of  the  enlarge- 
ment, secure  forever. 

Mr.  S.  said  the  Canal  Commissioners  in  their 
report  to  the  Legislature,  (he  believed  the  gen- 
tleman from  Herkimer  was  one,)  recommended 
this  work — that  the  capacity  of  the  canal  was  not 
sufficient  to  transport  the  freight  which  would  in 
a  few  years  be  sent  to  market  from  the  Western 
States'  The  eleven  members  from  the  city  of 
New  York  held  the  power  in  their  hands  to  pass 
or  defeat  the  bill.  It  was  passed — the  people 
sanctioned  it,  and  the  work  was  begun.  The 
faith  of  the  state  was  pledged  for  their  completion 
of  the  works. 

Mr.  S.  said  he  had  a  few  words  to  say  to  gen- 
tlemen from  the  river  counties.  One  of  the  re- 
presentatives from  Westchester,  who  possessed  a 
noble  soul  and  enlarged  views,  supported  the  bill 
with  energy  and  zeal.  He  said  the  Erie  canal 
was  the  great  thoroughfare  designed  by  the  Great 
Ruler  of  all  human  events,  to  connect  the  inland 
seas  with  the  ocean — that  the  Black  River  canal 
was  the  right  arm,  and  the  Genesee  Valley  was 
the  left. 

Mr.  S.  said  the  member  from  oldDutchess  sup- 
ported the  bill  with  commendable  zeal,  that  was 
an  honor  to  himself  and  his  constituents. 

Mr.  S.  said  he  wished  to  say  to  gentlemen  re- 
presenting the  river  counties  in  this  Convention, 
and  with  the  kindest  feelings,  and  if  he  knew  his 
own  heart,  with  the  best  intentions,  that  he  sin- 
cerely hoped  they  would  stand  by  the  friends  of 


Convention,  for  a  few  moments,  in  relation  to  the1  'this  great  work,  and  aid  them  in  carrying  out  the 


measures  to  final  completion,  which  their  prede- 
cessors had  aided  in  commencing. 

Mr.  S.  said  he  would  say  to  the  gentlemen 
from  the  city  of  New  York,  and  with  no  other 
feeling  than  that  of  friendship  and  sincere  desire 
for  the  best  interest  of  this  state,  that  he  hoped 
they  would  be  found  among  the  friends  of  inter- 
nal improvements,  and  by  their  votes  would  res- 
cue it  from  a  premature  death.  One  of  your 
members  (Mr.  TILDEN)  said  yesterday  that  the 
city  of  New  York  had  a  greater  interest  in  the 
enlargement  of  the  Erie  canal  than  any  other  part 
of  the  state.  That  is  true — no  one  will  deny  it 
here  or  elsewhere. 

Mr.  S.  said  he  would  appeal  to  the  gentlemen 
from  the  city  of  New  York  to  stand  by  their  own 
nursling,  a  child  they  had  created,  arid  not  "to 
suffer  it  to  be  strangled  in  its  infancy,  by  support- 
ing the  report  of  the  committee,  and  by  so  doing 
put  an  iron  rule  in  the  Constitution.  He  could 
not  believe  that  the  honest,  upright  and  well-in- 
formed citizens  which  they  represented,  wish 
you  to  vote  against  their  greatest  and  dearest  in- 
terest. 

Mr.  S.  said  he  had  a  few  more  words  to  say  and 

87 


898 


he  was  through.  If  the  Convention  adopt  the  re 
port  of  the  committee,  it  will  be  eighteen  years 
before  we  can  proceed  with  our  works  of  inter- 
nal improvement.  Before  that  time  expires  the 
Welland  canal  will  be  finished,  and  the  Lachine 
canal  on  the  St.  Lawrence  river.  There  a  schoon- 
er can  load  at  Chicago  and  discharge  at  Liverpool. 
The  trade  of  the  Western  States  will  take  that 
and  other  routes,  and  the  state  of  New  York  has 
lost  it  forever;  but  if  the  Convention  will  adopt 
the  amendment  offered  by  the  gentleman  from 
Erie  (Mr.  STOW)  which  only  puts  off  the  payment 
of  the  state  debt  five  years  longer,  we  can  pro- 
ceed with  our  public  works,  and  by  prudence 
and  economy  complete  the  enlargement  of  the 
Erie  canal  in  time  to  enable  us  to  compete  with 
other  routes,  by  reducing  the  tolls  and  the  price 
of  freight,  and  by  so  doing  secure  a  fair  share  of 
the  products  of  the  broad,  fertile  regions  of  the 
West. 

A  boon  is  now  within  our  reach  ;  if  we  are  wise 
we  will  take  it  and  secure  to  the  people  of  this 
state  and  their  posterity  the  richest  legacy  ever 
bequeathed  to  any  people. 

iVJr.  S.  said  it  was  but  the  work  of  a  moment  to 
say  the  little  words  aye  and  nay,  hut  they  will  re- 
main recorded  on  the  pages  of  history  after  we 
have  passed  away. 

;\lr.  S.  said  when  we  had  lost  this  great  and 
important  heritage,  and  when  generations  yet  un- 
born, shall  inquire  into  the  cause  why  the  trade 
of  the  West  was  not  secured  to  the  Empire  State, 
the  only  natural  thoroughfare,  formed  and  design- 
ed  by  the  God  of  Nature  for  that  purpose — and 
when  they  trace  back  the  history  of  the  pa^t,  and 
come  to  the  record  of  the  Convention,  and  sit  in 
solemn  judgment  on  the  vote  we  are  about  to  give, 
he  apprehended  if  we  could  look  from  our  own 
narrow  house,  we  would  see  them  drawing  the 
black  lines  around  that  vote,  arid  in  letters  of  liv- 
ing lisiht,  write  the  word  "Expunged." 

Mr.  WARD  said  that  the  gentleman  from  Mon- 
roe had  introduced  the  river  counties  of  this 
State  in  a  manner  which  required  some  notice 
from  him.  He  insisted  that  in  coming  to  a  con- 
clusion on  this  great  subject,  the  Convention  was 
in  duty  bound  to  look  to  the  river  counties,  to  as- 
certain the  tone  of  public  sentiment  there.  It  has 
been  said  by  able  and  intelligent  gentlemen  upon 
this  floor,  that  the  revenues  of  the  canals  would 
be  sufficient  to  pay  the  debt  of  the  State,  and  to 
complete  the  enlargement  of  the  canal.  Now,  as 
a  representative  of  one  of  those  river  counties 
which  have  been  spoken  of  here,  I  only  want  to 
be  satisfied  in  my  own  mind,  that  the  revenues  of 
the  canal  will  be  sufficient  to  save  the  State  from 
taxation,  and  I  will  go  to  the  fullest  extent  with 
the  friends  of  the  canals,  not  only  for  the  post- 
ponement of  the  payment  of  some  portion  of  the 
debt,  but  for  the  completion  of  the  unfinished 
works.  But  he  could  not  possibly  see  how  this 
could  be  done.  He  asked  for  information. 

Mr.  STRONG  said,  that  on  looking  at  the  reve- 
nues of  the  canal,  it  was  very  evident  that  they 
would  pay  the  debt  and  interest  thereon,  and  leave 
a  good  surplus  to  complete  the  public  works. 

Mr.  WARD.  That  to  a  certain  extent  may  be 
true ;  but  the  gentleman  has  made  some  omis- 
sions. The  plans  which  have  been  submitted 
here  propose  certain  things ;  but  there  is  nothing 


said  about  the  ordinary  and  extraordinary  expen- 
ses of  government,  which  have  now  swelled  up 
to  a  large  amount :  to  meet  this  a  tax  is  imposed 
upon  the  people.  Now,  I  apprehend  that  that  tax 
upon  the  people  of  this  State  is  proposed  to  be 
continued;  for  if  it  is  continued,  the  debt  will 
most  certainly  be  paid  by  it  and  not  by  the  reve- 
nues of  the  canal.  Now,  I  cannot  go  back  to  my 
constituents  and  tell  them  that  I  have  encumbered 
them  with  a  tax,  which  is  to  be  continued  by  a 
clause  in  the  constitution ! 

Mr.  STRONG  said  that  it  would  require  this 
tax  to  be  continued  for  but  a  very  short  time ;  for 
if  the  postponement  of  the  payment  was  made  for 
but  a  few  years  the  canal  would  be  enabled  to  pay 
its  own  debts,  and  then  no  tax  would  be  neces*- 
sary. 

Mr.  WARD.  Still,  sir,  I  am  by  no  means  sat- 
isfied upon  this  important  point.  Provision  should 
by  all  manner  of  means  be  made  for  the  extin- 
guishment of  this  debt ;  also  for  the  payment  of 
the  interest  accruing  thereon,  for  the  repairs  that 
will  from  time  to  time  be  necessary,  and  also  for 
the  gradual  enlargement  of  this  great  work.  But 
whence  are  the  means  to  be  derived  ?  That  is  the 
question  to  be  determined.  Not  a  word  is  said  in 
this  constitution  as  to  when  this  tax  is  to  be  ta- 
ken off.  How  are  the  expenses  of  government  to 
be  paid  in  the  mean  time  ? 

Mr.  STRONG.  The  committee  proposes  to  pay 
off  the  debt  in  eighteen  years;  the  plan  of  Mr, 
STOW  proposes  to  do  it  in  twenty-two  years.  That 
is  the  only  difference  between  the  two  of  them. 

Mr.  WARD  said  that  the  amendment  proposed 
to  the  report  of  the  committee  by  the  honorable 
gentleman  from  Schoharie,  (BoucK,)  and  the  one 
proposed  by  the  honorable  gentleman  from  Herki- 
mer,  (LooMis,)  leaves  the  question  entirely  open 
with  respect  to  taxation.  The  legislature,  they 
say,  may,  at  its  discretion,  continue  this  di- 
rect tax;  but  in  his  (Mr.  WARD'S)  judgment, 
should  there  be  sufficient  funds  in  the  treasury 
to  meet  all  the  'wants  of  the  government,  and 
the  demands  of  the  friends  of  internal  improve- 
Hiient  upon  it$  then,  as  there  will  be  no  neces- 
si*:y  for  the  continuance  of  this  tax,  the  legis- 
lature, doubtless,  will  relieve  the  people  from  it. 
On  the  other  hand,  the  amendments  proposed  by 
the  honorable  gentleman  from  Erie,  (Sxow,)  and 
the  honorable  gentleman  from  Ontario,  (  WORDKJV) 
provide  for  the  payment  of  the  interest  and  grad- 
ual payment  of  the  principal  of  the  canal  and 
State  debts,  by  setting  apart  the'sum  of  $'2,000,000 
annually,  out  of  the  canal  revenues,  after  which 
they  propose  tq  appropriate  the  whole  of  the  bal- 
ance of  the  canal  revenues  to  the  enlargement  of 
the  Erie  canal,  and  the  improvement  of  the  Black 
river  and  Genesee  valley  canal ;  thereby  drain- 
ng  the  treasury,  not  leaving  a  single  dollar 
therein  to  be  applied  either  to  the  ordinary  or  to 
the  extraordinary  expenses  of  the  government,  if 
we  except  the  money  to  be  derived  from  the  auc- 
tion duties  and  salt  tax  ;  which,  together,  will  not 
exceed  $'100,000.  He  (Mr.  WARD)  did  not  desire 
:o  occupy  much  of  the  valuable  time  of  this  Con- 
vention, but  no  gentleman,  by  his  plau,  hud  yet 
satisfied  his  (Mr.  VV's.)  mind  as  to  how  this  debt 
was  to  be  paid  without  the  tax. 

It  is  conceded  on  all  hands,  that  it  is  the  duty  of 
the  Convention  to  make  a  provision  for  the  pay- 


899 


ment  of  the  canal  and  State  debt,  to  provide  for 
the  gradual  completion  of  the  canals,  to  restrain 
the  legislature  from  giving  or  loaning  the  credit 
of  the  htate  either  in  aid  of  individuals,  associa- 
tions or  incorporations,  and  from  contracting  debts 
on  behalf  of  the  State,  except  to  contract  debts 
to  repel  invasion,  suppress  insurrection,  or  to  de- 
fend the  State  in  war,  without  first  submitting 
the  question  to  the  people. 

Mr.  W.  said  he  would  not  stop  to  inquire  into 
the  causes  of  our  State  indebtedness,  as  some  gen- 
tlemen, in  the  course  of  the  debate,  had  done,  nor 
would  he  allow  himself  to  cast  reproaches  on  any 
man  or  set  of  men  on  account  thereof.  It  was 
enough  for  him  to  know  that  the  State  was  in 
debt  and  that  some  provision  should  be  made  to 
meet  it. 

The  question  is.  what  shall  we  do  ?  Shall  we 
stop  here  \vith  our  public  works  until  our  debt  is 
paid,  or  shall  we  provide  for  the  gradual  payment 
of  the  debt  and  at  the  same  time  provide  for  the 
gradual  completion  of  the  canals  ?  He  was  in  fa- 
vor of  completing  the  works  withlall  convenient 
despatch. 

But  whence  comes  the  means  ?  Have  we  the 
means  to  do  all  this?  That  is  the  question.  If 
we  have  the  necessary  means  to  do  all  this,  I,  as 
one  of  the  humblest  members  upon  this  floor,  will 
go  for  it.  We  have  yielded  up  to  this  great  work  all 
our  means,  and  as  I  said  before,  have  nothing  left 
but  the  salt  tax  and  auction  duties,  whilst  the  ex- 
penses of  the  government  have  been  gradually  roll 
ing  up,  till  last  year  they  were  nearly  $800,000.  If 
the  annual  expenses  of  the  government  amount 
to  between  $,'(300,000  and  $900,000,  it  will  be  seen 
that,  should  either  of  the  last  mentioned  amend- 
ments prevail,  the  present  tax  will  not  only  be 
continued,  bul  it  must  be  greatly  increased,  This 
is  not  all ;  for  it  will  be  irrevocably  fastened  up- 
on the  people  for  fifty  years  or  more.  Indeed, 
the  legislature,  should  they  feel  disposed  to  re- 
lieve the  people  from  it,  cannot  do  so,  because  the 
fax-  will  be  fastened  upon  them  by  the  constitu- 
tion ;  and  there  will  be  no  way  to  obtain  relief, 
but  by  calling  another  Convention  to  altter  and 
amend  the  constitution  in  this  respect.  He,  (Mr. 
W.,)  therefore,  most  solemnly  entered  his  protest 
against  a  feature  in  every  respect  so  obnoxious. 

If  we  look  at  the  Comptroller's  report,  we  find 
the  ordinary  expenses  of  government  for  last  year 
to  be  nearly  $400,000,  ihus: 

ORDINARY  EXPENSES  : 

Salaries  ot  officers,  including  the  Supreme 
court,  court  of  chancery,  ;<nd  circuit  judges,  $  50,967  59 

Cl  rks  of  Supreme  Court,  and  Registers  in 
Chancery,  including  expenses  ot  their  offi- 
ces,  

Pay  rnd  contingent  expenses  of  the  Legisla- 
ture,  

Court  of  Errors, 

Expenses  ot  State  Prisons,  (transportation  of 
convicts,  &c.,) 

Annuities  to  Indians,  &c., 

Commissary's  Department,  courts  martial  and 
brigade  inspectors, 

Printing, 

Public  Libra: if s, 

Public  otticus,  for  clerk  hire,  fuel,  postage,  &.C. 

Appi  ehensiou  of  fugitives  from  justice, 

Expenses  of  State  Lunatic  Asylum, 

Expenses  and  repairs  of  Capitol,  •  •  •' 

Miscellaneous, 


Whilst  the  extraordinary  expenses  of  the  gov- 
ernment amounted  to  nearly  as  much  in  the  fol- 
lowing items : 

Special  appropriations  8f  temporary 

Bounty  on  coal,  gypsum,  &^. ,•».... 

(Geological  survey, 

State  Lunatic  Asylum, 

Clinton  State  Pri.-on, 

Mount  Pleasant  Prison, 

Roads, 

Expenses  of  Military  in  Columbia,  Delaware, 
&.C., 


41,370  06 

89,306  59 
27,097  ^0 

14,555  46 
9,674  93 

27,277  37 

61,763  74 
6,899  19 

22,113  66 
5,381  84 
3,833  57 
2,985  49 

26,944  44 


Improvement  of  the  Cayuga  and  Seneca  canal, 
Paid  judgment  against  agent  of  Auburn  prison, 

Deaf  and  dumb  and  blind, 

Agricultural  societies  and  premiums  on  silk,.. 


expenses* 

$  73,383  03 
61,622  07 
528,000  00 
56,848  38 
17,800  00 
4,508  63 

64,391  19 
7,176  83 
3,348  83 

38,06-2  73 
8,698  03 

$368,839  72 

Now  what  is  to  be  done,  with  this  state  of  things 
surrounding  us  ?  Shall  we  still  resort  to  a  direct 
tax  ?  Shall  we  go  home  and  say  that  this  great 
work  shall  be  done,  and  done  immediately,  but 
at  the  same  time  shall  we  tell  our  constituents 
that  \\e  will  still  continue  to  tax  ihem  on  account 
I  hereof.  If  proper  provision  was  not  made  to  re- 
lieve the  people,  at  least  within  a  icasonable  time, 
from  this  burthen,  thoae  living  in  his  part  ot  the 
country,  he  was  atraid,  would  not  ratify  this  in- 
strument.  And  on  the,  other  hand  we  are  told 
that  our  western  brethren  will  not  vore  for  the 
constitution  unless  provision  is  made  therein  for 
the  speedy  completion  of  the  public  works.  We 
are  surrounded  with  difficulties  and  dangers  on 
every  side.  The  present  question  is  one  involv- 
ing more  important  consequences  to  us  than  all 
the  others  we  have  had,  or  may  have,  under  con- 
sideration. The  judiciary  question,  in  compari- 
son with  this,  did  not  weigh  a  feather.  The  leg. 
islative  and  executive  departments  were  of  little 
comparative  consequence.  And  whilst  I  am  libe. 
ral  to  a  fault,  and  have  so  been  in  every  position 
where  1  had  the  honor  to  be  a  representative,  yet 
I  must  look  to  the  direct  interests  of  my  constitu- 
ents; I  must  still  bear  steadily  in  mind  what  I 
know  to  be  their  wishes. 

When  this  great  work  was  commenced  there 
were  apprehensions  on  the  part  of  the  represen- 
tatives from  the  River  counties,  from  Long  Is- 
land and  New  York,  that  it  would  be  a  failure; 
and  they  urged  strong  objections  against  the  build- 
ing of  the  original  Erie  ar^d  Champlain  canal. — 
The  population  of  the  state  at  that  time  did  not 
exceed  1,000,000,  and  it  was  apprehended  that 
the  canal  would  nut  produce  a  revenue  sufficient 
to  redeem  the  debt  contracted  for  its  construction, 
and  that  it  would  burthen  the  public  with  a 
heavy  tax.  But  they  were  mistaken  in  their 
fears ;  and  he,  for  one,  returned  his  hearty  thanks 
to  those,  who,  in  that  day,  had  the  firmness  to 
stand  by  the  canal.  In  April,  1817,  the  act  was 
p.assed,  and  the  representatives  from  the  districts 
that  I  have  named  mostly  voted  against  it ;  not 
that  they  were  in  the  abstract  opposed  to  having 
a  canal;  but  they  said  that  it  was  too  early  to 
construct  so  great  a  work.  The  vote  on  the  pas- 
sage of  that  stood  thus  : 

For.  Against. 

New  York 0  7 

Suffolk 0  2 


Total  ordinary  expense*  of  government,-  $380,218  83 


Queens 

Kings 

Westchester- 

DutchebS.t.. 


Absent. 

2 

1 

0 

0 

0 

0 


900 


Rockland 0 

Orange 3 

Columbia « 3 

Greene 0 

Ulster 0 

Albany  * < t .....   \ 

Kensselaer.- 3 

Washington  and  Warren 0' 

Thus  stood  the  vote  on  the  passage  of  that  im 
portant  act,  as  far  as  the  River  counties  were  con 
cerned.  They  probably  did  not  exercise  a  wise  an< 
prudent  foresight,  but  they  were  not  willing  to  en 
cumber  the  State  with  *  heavy  tax ;  they  though: 
it  was  asking  too  much  for  a  population  of  1,000,- 
000  to  assume  a  debt  of  $8,000,000  to  $10,000,000 
But  yet  this  act  passed  by  a  vote  of  51  to  40 ;  anc 
again  he  commended  the  firmness  and  good  sense 
of  those  who  accomplished  it.  What  have  been 
the  proud  results  of  this  great  work  ?  Our  popu- 
lation has  increased  from  1,000,000  to  3,000,000, 
being  nearly  equal  to  the  estimates  of  Malthtis  on 
population,  that  where  there  are  no  checks,  the 
population  will  double  itself  once  in  14  years.— 
And  within  a  short  time  after  the  commencement 
of  the  canal,  the  people  every  where  were  will- 
ing to  sustain  their  share  of  the  debt.  Our  prede- 
cessors told  us  truly  whence  this  original  debt 
would  be  paid,  and  when  it  would  be  paid ;  and 
that  debt  for  the  original  construction  of  the 
Canal  has  been  extinguished.  And  now,  even 
with  the  large  debt  of  $23,000,000,  if  the  canal 
was  blocked  up,  and  would  yield  no  revenue,  the 
people  of  the  River  counties  generally,  would 
most,  willingly  pay  their  mite,  and  submit  to  taxa- 
tion until  every  dollar  of  the  debt  was  paid.  But 
whilst  they  would  cheerfully  submit  to  this  when 
it  was  necessary, does  it  follow  that  they  will  sub- 
mit to  be  taxed  when  it  is  no  longer  necessary, 
more  especially  when  the  Treasury  was  overflow- 
ing with  the  revenues  of  these  canals.  The  half 
mill  tax,  which  amounted  to  $500,000  annually, 
drew  from  the  people  of  the  River  counties  inclu- 
ding Richmond  and  Long  Island,  $364,000,  lea- 
ving only  $136,000  to  be  paid  by  the  Western  and 
Northern  counties.  Mr.  W.  dwelt  her* at  some 
length  upon  the  hardship  and  inequality  of  this 
state  of  things,  and  insisted  that  they  would  have  to 
satisfy  the  searching  inquiries  of  their  constituents 
in  this  respect,  and  they  understood  this  matter 
most  thoroughly.  But  notwithstanding  all  this,  he 
(Mr.  W.)  would  be  prudently  liberal— he  believed 
his  constituents  woulovbe  so  too.  There  is  patriot- 
ism enough  left  in  the  people  there,  that  if  there 
should  be  a  real  necessity  to  complete  these 
works  immediately,  they  would  be  willing  to 
postpone  the  payment  of  the  debt  not  only  for  20 
years,  but  even  for  30  years,  if  by  so  doing  this 
great  canal  could  be  so  properly  enlarged  as  to 
bring  in  the  large  additional  revenues  which  gen- 
tlemen contemplated  in  their  estimates,  and  the 
people  could  be  saved  from  taxation.  He  believed 
that  the  canal  revenues,  which  now  amount  to  $2, 
750,000  annually,  were  sufficient  to  keep  the  canal 
in  repair,  to  pay  the  interest,  and  gradually  to 
redeem  those  canal  and  state  debts,  and  to  com- 
plete the  canals;  and  that  too  without  imposing 
unnecessary  burthens  on  the  people.  He  (Mr. 
W.)  was  willing  to  admit  that  there  was  a  neces- 
sity for  the  enlargement  of  this  canal.  What 
(said  Mr.  W.)  was  the  condition  of  that  work 
now  ?  The  Erie  canal  was  divided  into  four  large 
divisions : — 


1st.  Commencing  at  Albany,  and  ending  at  Lit- 
tie  *  alls,  Herkimer  county,  90  miles. 

2d.  Beginning  at  Little  Falls,  and  ending    at 
Canastota,  in  the  county  of  Madison,  58  miles. 

3d.  From  Canastota  to   Cartersville,  in  Wayne 
county,  106  miles. 

4th.  From  Cartersville  to  Buffalo,  Erie  countv- 
105  miles. 

On  the  first  section,  from  Albany  to  Little  Falls 
90  miles  in  extent,  30   miles  remained  to  be  en- 
larged—7   miles  of  which  was  between  Albany 
and  Schenectady.     It  would  require,  to  complete 
these    7  miles,  $210,000—  H    locks    on  this  sec- 
tion were  to  be  entirely  doubled,  one  of  which  is 
9  miles  west  of   Schenectady,  and  1-2  at    Little 
Falls — 7  other  pair  of  locks  were  nearly  comple- 
ted,  but  not  in  use.     The  1st  lock  was  6  miles 
from  Schenectady;  the  2d   lock,  3  miles  west  of 
Amsterdam  ;  the  3d  lock,  at  Spraker's  Basin;  the 
4th  lock,  at  St.  Johnsville  ;  the  5th  lock,  at  Fort 
Plain  ;   the  6th  lock,  at  cross  locks,  6  miles  west 
of  St.  Johnsville ;  the  7th  lock,  5  miles  east  of  Lit- 
tle Falls.     The  30  miles  of  canal  which  remained 
to  be  enlarged  on   this  section,   would  cost  about 
$1,000,000.     The   Champlain  canal  entered  into 
this  section,  but  below  the  locks  at  Cohoes.     Of 
the  second  section,  from  Little  Falls  to  Canastota 
passing  through  the  counties  of  Herkimer,  Onei- 
da  and  Madison,  a  distance  of  58  miles — 32  miles- 
remained  to  be  enlarged,  with  7  pair  of  locks  be- 
gun and  nearly  completed,  but  not  in  use.  These 
locks  with   those   on  the  first  section,  would  re- 
quire, as  estimated,  the  sum  of  $295,000  to  com- 
plete them.     These  were  all  the  locks  on  which 
abor   is   required,   upon    this   section.     The  32 
miles  of  the  canal  might  be    enlarged  for   about 
$1,000,000.     This  section  received  the  following 
ateral  canals — the  Chenango,  the   Oneida  Lake, 
md  the  Black  River  canals.  Of  the  third  section, 
'rom  Canastota  to  Cartersville,  in  Wayne  county, 
a  distance  of  106  miles,  only  16  miles  had  been 
completed.     The  remaining  90  miles   had  never 
>een  put  under  contract.     The  number  of  locks 
on    this  section,  to    be  completed,   was  5£  dou- 
ble, or  11  single  locks.    These   had  never  been 
put  under  contract.     The  estimated  cost  of  these 
ocks  was  $500,000.     The  lateral  canals  that  fall 
nto  this  section,  were   the  Oswego,  the   Cayuga 
md  Seneca,  the  Oneida   River  improvement,  the 
Seneca  River  towing-path,   the    Chemung,  and 
brooked  Lake  canal.     Of  the  fourth  section,  from, 
Cartersville  to  Buffalo,  a  distance  of  105  miles, 
>nly  S  miles  had  been  completed.     The  remain- 
ng  97  miles  had  never  been   put  under  contract. 
<"ive  single  locks  on  this  section  had   been,  com- 
peted— 5  pair  of   locks   had  had   no    work  done 
upon  them,  and  never  had  been  put   under  con- 
ract;   and  the  estimated  cost  to   complete  these 
ocks  was  $500,000.     There  were   6  locks  partly 
ompleted,   the    estimated   cost  for  completing 
v h ic h  w  as  $300,000.     The  Genesee  Valley  canal 
ell  into  this  section.    The  whole  number  of  miles 
>f  canal  between  Albany    and  Buffalo,  which  re- 
nained  to    be  enlarged,  was   250  miles,  and    had 
lever    been  put  under   contract.     The   estimated 
ost  per  mile  for   completing  the   enlargement  of 
he  canal  was  $30,000,  independent  of    the  locks. 
!"hus  we  see  that  only  one-third  part  of  ihe  canal 
s    completed,    or    has    been    enlarged.     So    fa? 
s  regards  the  first  section  and    the  locks  which 


901 


remain  in  an  unfinished  -state,  they  should  be 
completed  with  all  possible  despatch.  As  to  tin 
2d  and  3d  sections  there  was  no  necessity  the) 
should  be  so  speedily  completed,  lie  (Mr.  W.) 
had  asked  the  friends  of  the 'canals,  lo  show  him 
a  plan  how  this  work  could  be  done  within  3 
years,  as  named  by  them,  so  as  at  the  same  time  to 
prevent  this  great  debt  on  the  people.  If  the  re- 
venues can  do  all  that  is  contemplated  and  desir- 
ed, by  postponing  the  payment  of  the  debt  even 
for  20  or  25  years,  he  was  perfectly  willing  (with- 
oui  a  tax)  that  these  works  should  be  Completed 
immediately.  Mr.  W.  only  asked  that  during  the 
ensuing  20  years  the  people  miuht  not  be  subject- 
ed to  the  annual  tax  of  $500,000  for  the  support  ol 
the  government.  First  make  an  appropriation  for 
this  purpose,  and  he  would  go  with  gentlemen  in 
the  expenditure  of  every  dollar  of  surplus  to  the 
completion  of  this  great  work.  The  gentleman 
from  Erie  had  given  a  glowing  picture  of  the  pro- 
bable increase  of  business  on  the  canal.  Mr.  W. 
believed  all  ot  it.  He  had  not  a  doubt  but  what 
in  20  years  the  immense  produce  coming  from 
the  mighty  West  would  be  more  than  could 
be  transported  on  the  Erie  canal,  even  if  it  isgreat- 
ly  enlarged,  nor  upon  the  railroad  upon  its  banks 
also,  nor  even  with  the  Erie  railroad  to  help 
them.  Can  we  not  all  comprehend  the  enormous 
gro.vth  of  this  mighty  West.  No  less  than  200,- 
000  emigrants  had  arrived  in  this  country  dunng 
this  year  alone — being  50,000  more  than  this  state 
had  at  the  commencement  of  the  Revolutionary 
War.  Why,  this  population  alone  would  build 
up  a  city  larger  than  Buffalo,  and  Utica,  and 
Hudson,  and  the  cities  ot  Albany  and  Rochester, 
all  put  togei  '•"  r. 

But  looking  at  the  unparalleled  strides  of  this 
country  in  every  respect — dating  its  commence- 
n.ent  Irom  the  landing  at  Plymouth  Rock,  upwards 
of  200  \ears,  and  what  is  our  population  ?  It  may 
be  estimated  at  20,000,000,  or  more — and  from  our 
experience  in  the  past,  we  may  calculate  with 
perfect  certainty  thar  its  increase  during  the  next 
2U  years  will  lully  equal  that  of  the  last  200. — 
That  is  to  say,  that  we  shall  have  an  addition  to 
our  population  within  the  next  20  years,  as  large 
as  we  are  at.  present,  without  reference  to  the 
enormous  emigration  from  abroad,  to  swell  it  be- 
yond that  point.  This  lide  of  increase  is  mostly 
settling  West.  And  already  (he  states  of  Ohio, 
Michigan,  Illinois,  Indiana,  and  those  territories, 
bordering  on  the  great  Lakes  contain  a  population 
of  nearly  3.000,000.  Those  states,  embarrassed  as 
they  unfortunately  are  at  present,  in  their  finan- 
cial ullans,  are  yet  prosecuting  their  works  ol  in 
ternal  improvements,  and  what  is  to  be  the  con- 
sequence of  theircoinpletioi)  ?  Why,  that  the  im- 
mense amount  of  produce,  arid  the  rich  minerals 
from  tne  borders  of  the  Mississippi  and  Lake  Su- 
perior, seeking  a  market  on  the  Atlantic,  n»u.»t  ol 
necessity  pass  in  this  direction.  Their  gram,  then 
provisions,  and  every  thing  of  that  character  must 
come  here;  oeciuse  it  is  well  known  thai  passing 
down  the  Mississippi  to  Mew  Orleans,  that  hot 
climate  deteriorates  many  of  those  ailicles  imnie- 
diately  they  get  (here  'They  will  he  seeking  this 
Northern  market— the  best  in  the  union— the  city 
of  New  York.  If  then  that  interesting  portion  of 
country  now  contains  3,000,000  of  inhabitants,  in 
20  years  in  my  view,  owing  to  these  circumstances, 


they  would  contain  upwards  of  7,000,000.  And 
all  their  vast  productions  from  those  fertile  re- 
gion-', passing  in  this  direct  inn —  who  can  believe 
that  the  canal  nnd  all  our  other  means  of  trans- 
portation combined  will  be  adequate  for  itstransii? 
Entertaining  these  views,  he  (Mr.  W.)  was  in- 
clined to  think  that  the  calculations  of  even  the 
most  sanguine,  would  fall  short  in  respect  to  the 
future  increase  of  these  canals.  Let  us  then,  said 
he,  engraft  in  the  Constitution  some  equitable  and 
reasonable  proposition  that  will  secure  the  people 
against  taxation  in  lime  to  come.  He  would  say 
to  the  friends  of  these  great  woiks,  present  such 
a  proposition,  and  he  would  go  tor  it.  If  none  was 
presented,  he  should  feel  constrained  to  vote  for 
that  of  the  committee,  because  it  made  provision 
for  the  payment  of  the  debt,  and  also  for  an  annui- 
ty to  be  paid  to  the  stale  for  the  support  of  gov- 
ernment, and  for  the  gradual  completion  of  the 
canals. 

Why  was  it  that  the  friends  ot  the  measure 
were  backward  in  coming  forward  with  a  pro- 
position, when  all  conceded  that  there  was 
to  be  such  a  vast  increase  in  the  revenues  of 
these  works  ?  If  they  would  do  if,  it  seemed 
to  him  there  could  be"  no  doubt  that  a  majority 
would  be  found  hereto  sustain  them.  If  they 
would  not,  then  he  apprehended  they  had  no  con. 
fidence  in  their  estimate  in  respect  to  the  increase 
of  tolls,  but  were  desirous  of  continuing  the  tax 
on  the  people  from  this  time  until  the  debt  should 
be  paid.  His  views  were,  that  we  should  imme- 
diately rid  the  people  of  this  burthen.  He  would 
take  the  revenues  of  the  canals,  and  apply  them  to 
the  payment  of  the  interest,  the  gradual  extin- 
guishment of  the  debt,  to  the  expenses  of  govern- 
ment— and  after  sodoing,  he  was  willing  to  allow 
the  whole  ot  the  balance  to  the  completion  of  the 
canals.  $400,000  might  be  applied  to  the  com- 
pletion of  the  canals,  the  next  year;  and  as  the 
canal  revenues  increase,  the  annual  appropriation 
to  this  object  would  be  increased  in  the  same  ra- 
tio. This,  in  his  opinion,  might  be  done  whilst 
the  amount  paid  of  $650,000  which  we  here  set 
apart  for  the  canal  revenues,  would  be  perform- 
ing its  duty. 

Let  the  friends  of  this  measure  bring  forward  a 
proposition  of  this  character  arid  he  believed  it 
would  be  favorably  received  ;  and  would,  at  the 
same  time,  give  satisfaction  to  the  people  of  eve- 
ry section  of  this  State.  More  than  this,  they 
ought  not  to  demand,  for  there  is  not  the  slightest 
prospect  that  the  lateral  canals,  when  completed, 
will  yield  a  revenue  sufficient  to  keep  them  in  re- 
pair. They  will,  in  this  way,  here  attain  all  that 
they  desire, — a  pledge  secured  by  this  constitu- 
tion that  this  work  shall  be  done  as  speedily  as 
prudence  will  permit — the  debt  be  paid — the  tax 
discontinued — and  the  interests  of  all  parties  ju- 
diciously satisfied,  and  definitely  disposed  of. 

Mr.  CHAMBERLAIN  took  the  flooi  and  said 
he  rose  under  embarrassments  which  weight  d  him 
down,  for  although  he  had  been  six  years  in  public 
life,  yet  he  was  not  a  public  speaker,  and  would 
not  at  ibis  time  attempt  to  address  this  Conven- 
tion did  he  not  feel  it  an  imperative  duty  which 
he  owed  to  his  constituents,  but  placed  here  as  he 
was  by  the  partiality  of  a  confiding  constituency, 
he  could  not  do  less  than  present  their  interest  in 
the  question,  and  to  the  utmost  of  his  ability  sua- 


902 


tain  the  right.  He  had  given  hts  best  attention  to 
this  subject  tor  the  last  four  years ;  and,  if  he 
were  not  well  acquainted  with  it,  he  was  not  with 
any  subject  relating  to  legislation.  He  had  be- 
fore  this,  in  the  senate  of  this  stare,  given  a  his- 
tory of  tne  Genesee  Valley  canal,  trorn  the  first 
movemenis  ot  the  people  inure  than  a  quarter  of  a 
century  ago,  up  to  the  )ear  of  1836,  and  to  the  act 
of  the  legislature  of  that  year,  authorizing  its  con- 
struction  ;  and  to  this  and  the  Black  River  canal, 
he  proposed  to  confine  his  present  remarks.  In 
the  senate  before  alluded  lo,  he  gave  adescription 
of  the  country  through  which  it  is  located,  the 
junction  with  the  Erie  canal  at  the  city  of  Roch- 
ester, 245  miles  from  Albany,  then  up  the  Geriesee 
Valley  to  Mt.  Morns,  one  of  the  richest  valleys 
within  the  United  Stales;  then  to  the  Genesee 
feeder  in  the  town  of  Canadea,  Allegany  county, 
then  up  Black  Creek  to  Cuba  upon  the  summit 
level  on  the  waters  running  south;  thence  to 
Olean  in  the  county  ot  Cattaraugus,  passing  and 
penetrating  the  pine  forests  of  the  southern  coun- 
ties of  (his  state,  and  the  northern  counties  of 
Pennsylvania,  abounding  with  the  best  pine  tim- 


ber in  this  or  any  other  country. 

The  country  from  the   Genesee   Valley   to 


the 


Sections 

Locks 

Aqueducts '•• 

Culverts 

Bridges 

Waste  wiers 

Dams  and  Bulkheads- 


$J35.373  35 

421.77778 

83, d42  34 

29,069  48 

36,-i-40  69 

9,975  S3 

'     4,090  00 


Total. 


.$1,019,569  22 


Allegany,  is  one  ot  the  best  for  grazing  in  the 
state,  and  produces  abundant  crops  of  grain  of  all 
kinds  produced  in  this  region.  At  Olean  it  con 
nects  with  that  beautiful  stream,  the  Allegany  riv 
er,  which  was  so  eloquently  described  by  his  friend 
from  Chautauque,  (Mr.  MARVIN,)  as  bending  its 
course  into  this  state  and  washing  the  northwest- 
ern base  of  one  of  the  spurs  of  the  Allegany  moun- 
tains, and  gradually  wending  to  the  southwest  a- 
bout  300  miles;  connecting  with  the  Monongahe- 
la  at,  Pittsburgh,  both  forming  the  Ohio,  and  con. 
necling  with  more  than  fifteen  thousand  miles  o 
river  steamboat  navigation  of  the  west  and  south- 
west. The  particular  descriptions  and  statements 
he  would  now  omit  as  his  honorable  colleague  hac 
done  a  triple  justice  to  that  subject,  and  he  was 
happy  to  rind  that  he  fully  endorsed  all  that 
had  heretofore  said  in  relation  to  the  beauty  and 
resources  of  that  section  of  the  state.  But  now 
he  would  restrict  his  remarks  to  a  narrower 
field. 

The  first  thing  he  should  present  to  the  con- 
sideration of  the  committee,  would  be  the  cost  of 
the  completion  of  the  unfinished  part  of  the  Gen- 
esee Valley  canal :  and  secondly,  the  probable  re- 
venue from  that  source,  after  its  completion.  The 
first  he  should  show  from  documents  which  he 
presumed  would  not  be  disputed  by  any  gentleman 
here.  'Jhe  first  document  to  which  he  should 
refer  was  the  report  of  the  canal  commissioners  to 
the  senate  on  the  27th  March,  1844,  document 
111.  On  the  second  page  ot  that  document  would 
be  found  the  following  table,  of  which,  however, 
he  would  say  that  the  contract  prices  were  those 
of  1838-'39,"when  every  one  knew  that  the  mate- 
rials necessary  to  construct  a  canal  were  higher 
than  they  now  are  by  25  per  cent.  Why,  at  the 
time  at  which  these  estimates  were  made,  they 
had  to  pay  tiom  $8  to  $10  a  barrel  for  flour,  and 
from  $15  to  $20  a  barrel  for  pork.  He  need  not 
remind  gentlemen  of  what  they  now  were.  The 
statement  he  was  about  to  make  then,  of  work  let 
in  1838-'39,  it  must  be  borne  in  mind,  was  based 
on  such  prices,  and  was  as  follows : — 


The  work  which  has  not  been  put  under 

contract   at  estimated  prices  was  as 

follows  :— 

Sections $93,779  69 

Locks 56,860  00 

Aqueducts 5,900  00 

ulverts 11,100  00 

Bridges 13,980  00 

Waste  wiers 6,000  00 

Lockhouses 6,000  00 

Reservoirs 96,400  00 

$295,300  59 

Total $1,314,869  81 

This  included  all  the  work  to  be  done  on  that 
canal,  and  for  convenience  he  would  call  it  $1,- 
315,000.  But  from  this  he  proposed  to  strike  25 
per  cent,  for  the  difference  of  prices  now  of  pro- 
visions and  labor  and  all  the  other  things  that 
were  necessary  to  construct  a  canal,  and  he  ap- 
pealed to  the  judgment  of  gentlemen  if  it  was  not 
a  reasonable  deduction  from  the  high  prices  of  '38 
and  '39.  The  amount  to  be  deducted  then  was 
$328,750,  leaving  a  balance  of  $986,250,  as  the 
cost  ot  the  completion  of  that  canal  at  this  time. 
This  however  did  not  include  the  reduction  to  be 
produced  by  a-changeof  plan  of  mechanical  struc- 
ture, extra  land  damages,  or  the  amounts  paid  by 
the  canal  board  for  violated  contracts  on  the  part 
of  the  state.  But  he  proposed  to  test  this  matter 
in  another  way.  Call  the  amount  necesssry  for 
the  completion  of  the  canal,  as  above  stated,  $1,. 
315.000,  then  the  state  has  paid  on  the  contracted 
part  of  the  work  $167,000,  as  was  shown  by  the 
Comptroller's  report  of  1846;  deduct  tor  a  change 
of  plan  of  mechanical  structure— see  canal  com. 
missioners  report  for  1844,  document  three— the 
sum  of  $85,000,  also  deduct  25  per  cent,  from  that 
portion  not  under  contract,  but  estimated  at  con- 
tract  prices  for  similar  work,  amounting  to  $295,- 
000,  as  referred  to  before,  being  the  sum  of  $73,- 
750,  and  for  extra  land  damages  in  case  the  canal 
is  abandoned  at  least  $50,000;  and  there  was  a 
sum  of  $376,250,  which  leaves  a  balance  necessa- 
ry to  complete  the  canal  of  $938,750  only.  It  his 
calculations  were  correct,  and  of  their  correct- 
ness he  h?.d  no  doubt,  the  work  could  be  complet- 
ed for  less  than  $1,000,000,  including  engineering 
and  all  contingencies. 

Mr.  W.  B  WRIGHT  enquired  if  the  gentle- 
man took  into  the  account  the  expenses  necessary 
to  repair  the  tunnel  which  had  fallen  in  ? 

Mr.  CHAMBERLAIN  replied  that  his  calcula- 
tion included  every  thing  to  be  done  on  the  ca- 
nal; but  what  the  gentleman  meant  by  a  fallen 
tunnel,  he  was  at  a  loss  to  know,  for  he  had  never 
heard  of  such  a  thing. 

Mr.  W.  B.  WRIGHT  said  he  had  received 
information  that  a  portion  ot  the  tunnel  had  fallen 

Mr.  HARRIS  said  he  was  there  in  August,  1845, 
and  it  was  not  so  then. 

Mr.  CHAMBERLAIN  said  the  information  of 
the  gentleman  from  Sullivan  was  news  to  him, 
and  would  be  to  the  inhabitants  of  that  part  of 


903 


the  country  trom  which  he  caine.  While  on  this 
subject  he  would  say  a  word  to  the  gentleman  from 
Herkimer,  (Mr.  HOFFMAN,)  lespei-tmg  (lie  land 
slides  of  whTch  that  gentleman  had  spoken;  lor 
ht;  desired  fully  to  m>vt  t  v. TV  objection,  and  to 
remove  all  that  could  be  removed  fairly  and  truth- 
lully.  It  was  irue  that  in  1841,  there  was  a  land 
slide  of  which  a  description  was  given  in  the  ca- 
nal commissioners'  repmt  ot  1641.  Some  twenty 
rods  uave  way  where  by  the  operation  of  the  wa- 
ter, the  land  btcame  soil,  in  section  fifty-eight,  if 
his  recollection  seived  him,  a;;d  that  was  all  the 
foundation  for  these  stories  of  land  slides. 

But  in  the  canal  commissioners'  report  of  1842, 
they  clear  away  all  the  log  and  mist  thrown  around 
this  matter.  They  say  that  the  place  where  the 
slide  occurred  last  year,  had  been  rebuilt  in  such 
a  manner  as  to  stand  well  thus  far,  and  gave  evi- 
dence of  permanency ;  and  Mr.  C.  would  here  say 
that  it  stands  well  up  to  the  present  year,  and  no 
doubt  to  the  present  hour. 

lie  hoped  after  this  explanation  they  should 
hear  no  more  oi  the  caving  in  ot  tunnels  or  of 
l.md  slides,  for  he  decLred  the  statements  to  be 
untrue.  The  works  all  stood  as  they  weie  when 
Ihe  work  was  abandoned,  with  Mjch  injury  only 
as  the  natural  d.  cay  ot  the  materials  was  ever 
subject  to.  He  then  propped  to  show  the  nro- 
bal-le  revenue  resulting  from  the  completion  ot 
this  work;  and  said  he  should  claim  the  tolls 
through  to  tide  water,  deducting  a  reasonable  pro- 
portion for  superintendence  and  repairs  on  the 
Erie  canal.  By  a  caretul  estimate,  he  had  the 
quantities  of  lumber  manufactured  on  the  waters 
of  the  Allegany  ai.d  Genesee  rivers  which  would 
find  a  marke'.  easrwaid  through  the  canal  if  com- 
pleted, and  w'lich  he  had  no  doubt  w;,s  entirely 
correct.  Mr.  C  read,  as  follows  : — 
Statement  of  lumber  manufactured  on  the  Jll- 
legany  river  above  W~arren. 

There  are  now  forty-five  sawmills  on  the  river, 
cutting  on  an  average  one  million  of  feet  each, 
making  in  all  45,OJO,000  feet.  On  the  same  ter- 
ritory are  manufactured  at  least  the  same  quantity 
of  shingles,  45,000,000.  Included  in  the  same 
territory  there  is  at  least  2uO,OUO  leet  of  square 
lumber. 

On  tributary  streams  of  the  Allegany  river,  of 
which  there  are  eleven  that  he  would  mention,  he 
had  estimated  the  amounts  of  the  several  kinds  of 
lumber  as  follows  : — 

The  Hengua  creek  10,000,000  of  boards,  10,- 
000,000  of  shingles  and  50,000  feet  of  timber. — 
The  Sugar  Run  5000,000  of  boards  and  5,000,- 
000  of  shingles.  Quaker  Creek  2,000,000  of 
boards  and  2,000,000  of  shingles.  Backtooth  Run, 
1,000,000  of  boards  and  1,000,000  of  shingles.— 
The  Great  valley,  5,000,0000  of  boards  and  5,<  PO, 
000  of  shingles.  1  he  Tunangwant,  1"), 000 ,000  of 
boards,  20,000,000  of  shingles  and  100,000  feet  of 
timber,  The  Oleun,  I0,0()0,ooo  of  boards  and  15,- 
000,000  of  shingles.  Dodge's  Creek,  8,000,000  of 
boards  and  10,000,000  of  shingles.  Haskill  Creek, 
•fboardsan  >  of  shingles.  The 

Oswugo  Creek,  20,000»000 of tboards, 20,000,1 
shingles  and  50,000  feet  of  timber.  Potato  creek, 
1(1,000,000  of  boards,  10,000,000  of  shingles  and 
50.000  feet  of  timber.  Also  on  the  Allegany  riv- 
er above  Potato  creek,  S, 000,000  of  boards,  8 ,000,- 
000  of  shingles  and  100,000  feet  of  timber.  Ma- 


king in  all  on  the  Allegany  and  its  tributaries : — 
144,000,000  of  boards. 

15ti,0!JO,000  ...I, 

660,000  ft  ct  of  square  lumber. 

One  half  of  this  amount  would  be  transported  the 
whole  distance  of  the  Genesee  Valley  canal  (107 
miles)  to  Rochester,  if  the  same  were  completed. 
The  tolls  on 

One  half  would  be  72,000,000  of  boards  $38,520  00 

76,000,000  of  shingles  8,453  00 

"        "        "  276,000  ft.  sq.  lumber         2,942  60 

$49.910  60 

He  had  also  made  an  estimate  of  the  quantity  of 
lumber  on  the  Genesee  river,  as  follows  :  50,000,- 
000  of  sawed  lumber,  50,000,000  of  shingles,  500,- 
000  feet  of  square  timber;  the  whole  of  which 
would  be  transported  on  the  Genesee  Valley  ca- 
nal to  Rochester,  a  distance  of  eighty  miles,  if  the 
same  were  completed.  The  tolls  on 

50,000,000  of  lumber  would  be        $20,000  00 

50,000,000  of  shingles  "      "  4,00000 

3UO.OOO  ft.  of  sq.  timber        "      "  2,40000 

Making  in  all  $26,400  00 

Making  in  all  three  articles  of  lumber,  timber  and 
shingles : — 

On  the  Allegany  and  its  tributaries,  $49,915  50 

On  the  Genesee,  26,400  00 

$76,315  50 

Now  if  we  give  credit  to  the  Genesee  Valley 
canal  for  tolls  on  the  Erie  canal,  245  miles  more, 
it  would  amount , 

On  122,000,000  of  boards  to 
"    1^9,000,000  shingles 
"          775,000  ft.  of  sq.  timber 

$200,042  50 
Add  to  this  the  tolls  on  the  G.  V.  canal,       76,315  50 


And  you  have  the  sum  of 


$276,358  00 


Giving  then  the  Genesee  Valley  canal  credit  for 
the  revenues  it  brought  to  the  Erie  canal,  deduc- 
ting 25  per  cent,  to  cover  the  expense  of  collec- 
tion, repairs,  &c.  of  the  Erie  canal,  and  there 
would  be  then  a  revenue  which  would  certainly 
pay  the  interest  of  constructing  this  canal,  and  to 
form  a  sinking  fund  which  would  pay  the  debt  in 
a  very  few  years.  He  had  a  table  of  tolls  show- 
ing the  amounts  which  had  been  credited  to  the 
part  in  operation  since  the  fall  of  1840,  when  it 
was  opened  for  navigation,  and  which  showed 
that  the  tolls  had  doubled  in  the  last  three,  over 
the  three  years  preceding  them.  The  tolls  were 
in  1840,  $0,930,  in  1841,  $9,257,  in  1842,  $13,- 
204 ;  total,  $29,430,  or  an  average  of  $9,810.  In 
1843,  they  were  $15,291,  in  1844,  #19,041,  and 
in  1845,  $25,173;  being  a  total  of  $58,105,  or  an 
average  of  $19,300 ;  besides  a  large  amount  which, 
it  must  be  recollected,  had  been  embezzled  by 
the  canal  officers,  the  sum  total  of  which  had  ne- 
ver been  ascertained.  Now  suppose  the  increase 
of  tolls  should  continue  in  the  same  ratio  up  to 
I  M in,  and  they  would  have  $184,000  from  that 
"  pauper  canal"  alone.  (Laughter.)  The  increase 
up  to  the  first  of  August  had  been  over  $<'>,»iOO 
more  than  the  whole  of  last  year,  as  he  learned 
from  ofiicial  documents. 

The  next  question  was  will  this  business  con- 
tinue? What  were  the  resources  of  that  part  of 
the  state  which  was  to  furnish  business  for  this 


904 


canal,  if  it  should  be  completed — for  that  was  an 
important  matter  if,  as  was  stated,  they  intended 
to  run  a  canal  to  the  foot  of  the  Allegany  moun- 
tains, and  there  connect  with — nothing.    He  then 
asserted  that  the  resources  of  that  part  of  the  coun- 
try were  almost  illimitable,  and   he   proposed  to 
show  some  facts  in  connection  with  it.     He  had  a 
statement  showing  the  number  of  acres   of  pine 
timbered  land  which  would  be  accessible  on  the 
completion  of  the  Genesee  Valley  canal,  with  the 
estimated   quantity  of  lumber   which   would   be 
manufactured  from  the  same.  He  read  as  follows: 
In  Warren  county,  Pa.,  100,000  at  20,000  feet  per 
acre,  would  be  2,000,000,000  of  feet,  or  2,000,000 
thousands  of  feet.     Cattaraugus  county,    100,000 
acres  at  20,000  feet  per  acre,  would  be  2,000,000,- 
000  of  feet,  or   2,000,000  thousands   of  feet.     In 
Allegany  county,   125,000  of  land  at  20,000  feet 
per  acre,  would  be  2,500,000,000  of  feet,  or  2,500,- 
000  thousands  of  feet.    McKean  county,  Pa.  150,- 
000  acres  of  land  at  20,000  feet  per   acre,   would 
be  3,000,000,000  of  feet,  or  3,000,000   thousands 
of  feet.  Potter  county,  Pa.,  175,000  acres  of  land, 
3,500,000,000  of  feet,   or   3,500,000  thousands  of 
feet.     In  all  650,000  acres  of  land,  and    13,000,- 
000,000  of  feet,  or  13,000,000  thousands  of  feet  of 
lumber;  and  to  consume  the  above   quantity,   at 
the  rate  of  150,000,000  per  year,  would  take  80 
years  and  over.  But  assume  this  amount  to  be  cut 
down  one  half,  then  it  would  require  over40yrs 
to  consume  this  one  article  of  tonnage  alone,  am 
it  would  more  than  pay  for  the  completion  of  th< 
canal,  twice  over,  in  tolls,  aside  from  the  tolls  i 
would  bring  to  the  Erie  canal. 

The  inducements  to  transport  this  lumber  to 
the   eastern   markets  would   be   apparent  to  all 


on  it ;  nor  the  revenue  arising  therefrom  But  he 
thought  it  would  be  ample  to  pay  all  expense  of 
superintendence  and  repairs,  if  weJl  constructed. 
He  presented  the  following  facts,  found  in  the 
Comptroller's  report,  assembly  document  No.  113, 
which  shows  a  balance  in  favor  of  this  canal  of 
$72,000.  He  also  referred  to  the  report  of  the 
commissioners  of  the  canal  fund  on  trade  and  ton- 
nage. On  the  29th  page  would  be  found  that  of 
the  Genesee  Valley  canal,  and  it  was  as  follows  : 

B,oards.  27,000,000  of  feet. 

Shingles,  19,000,000 
Square  timber,  106,000  cubic  feet 

Staves,  5.000  tons. 

Ashes,  1,000  tons. 


when  he  presented  a  few  facts  to  the  committee 
relating  to  prices  in  Albany  and  in  Cincinnati, 
and  the  cost,  risk  and  loss  of  transportation.  The 
cost  of  raiting,  running  and  delivering  at  Cincin- 
nati from  Oleau  was  about  $4  per  thousand  feet, 
the  loss  and  risk  at  least  20  per  cent.,  and  the  av- 
erage price  at  that  market  might  reach  the  sum 
of  $16  for  the  three  first  qualities. 
Deduct  the  price  of  running,  delivering,  &c.,  and 


$!2  00 


you  hud  left, 
Deduct  ri:k  aad  loss  (20  per  cent.,) 

Which  leaves  $8  80 

He  next  proceeded  to  show  the  result  on  the  ca- 
nals and  the  eastern  market.  The  cost  of  trans- 
portation on  the  Genesee  Valley  canal  and  the 
Erie  canal  to  Albany,  would  be  about  $5  to  $6 
per  M.  feet,  and  the  average  price  at  Albany  for 
such  lumber  was  about  $27.  There  was  no  loss 
or  damage  to  be  sustained.  The  boards  would  be 
worth  for  this  market  more  than  double  the  sum 
for  the  other — say  $21  per  thousand  feet.  Now, 
suppose  the  opening  of  this  immense  legion  of 
lumber  to  market  should  reduce  the  price  in  the 
eastern  market  $5  per  thousand  i'eet,  it  would 
then  give  the  manufacturer  at  home  $16  per  thou- 
sand feet — full  as  much  as  it  would  bring  in  Cin- 
cinnati. And  who  would  get  the  benefit  of  this 
reducticin?  Certainly  the  consumer  at  Albany 
and  other  eastern  cities.  And  would  it  be  said 
that  this  statement  is  not  correct?  He  asked  a 
refutation  of  it.  Nay,  he  challenged  it.  Now,  he 
had  not  in  this  estimate  of  business  to  be  done  on 
this  canal,  made  any  calculations  on  the  immense 
amount  of  other  property  which  would  pay  toll  i 


And  other  articles  amounting  in  all  to  ninety 
thousand  tons.  And  all  this  without  penetrating 
the  main  timbered  region  of  the  Genesee  or  Alle- 
gany rivers.  The  advantages  of  this  canal,  not 
only  to  that  part  of  the  state,  but  to  the  people  of 
;he  whole  state,  surpassed  his  ability  adequately 
to  present.  But  let  any  man  look  at  these  state- 
ments, and  unless  he  was  blinded  by  deep-rooted 
prejudices,  he  would  decide  at  once  that  no  time 
should  be  lost  in  completing  it.  He  well  knew 
hese  prejudices  were  strong  and  abiding  ;  yet  he 
lad  entire  confidence  that  they  would-be  over- 
come by  an  examination  of  these  statements  and 
acts.  And  if  he  should  succeed  in  doing  this,  he 
should  be  satisfied,  for  he  should  have  rendered 
his  constituents  a  great  service. 

They  did  not  compLin  of  the  provisions  of  the 
suspension  act  of  '42.  In  tact,  he  did  not  venture 
to  .say  that  they  were  distinctly  understood  ;  nor 
did  he  understand  (he  "policy  of '42  "  The  "po- 
licy" and  "the  law"  appeared  to  him  to  be  two 
different  things.  If  the  "policy  of  '42"  were  to 


abandon  the  public  works  commenced — if  it  were 
to  abandon  the  enlargement  of  the  Eiie  Canal,  and 
the  completion  of  ihe  Genesee  Valley  and  Black 
ttiver  canals,  the  people  m  his  section  of  the  coun- 
try were  opposed  to  it,  aou  never  would  consent 
to  it,  nor  be  satisfied  with  it.  But  he  desiied  to 
read  to  the  Convention  something  in  this  connec- 
tion, which  would  show  that  they  had  a  right  to 
expect  i  hat  as  soon  us  the  credit  of  the  state  had 
been  raised,  the  public  works  would  be  lesumed 
and  completed — and  (hat  the  etnbairassment  of 
state  stocks  had  passed  away,  and  money  become 
cheap,  could  not  be  denied.  The  extract  to  which 
he  alluded  was  liom  the  Legislative  Address  of 
mis  memorable  )ear  '42.  It  was  as  follows  : 

In  this  emergency,  we  have  been  impelled  to  the  alter- 
ternative  ot  suspending  for  the  present,  our  public  works, 
except  so  far  as  is  necessary  to  preserve  ttie  »ame;  and  to 
call  upon  you,  fellow-citizens,  to  come  forward,  and  by  a 
dir-ct  tax,  to  sustain  your  own  credit.  We  are  aware 
:hat  the  alternative  presented  to  you  is  an  unpleasant  one  ; 
;hat  the  suspension  of  the  public  works  will  produce pecu- 
liary  embairassment  among  some  portions  of  our  consti- 
.uents;  and  that  an  increase  of  taxes  at  this  season  of  linan. 
3ial  depress!  n,  will  subject  you  to  inconvenience.  But 
vhich  of  you  would  not  rather  submit  to  almost  any  pecu- 
niary sacrifice,  than  that  the  honor  ol  the  state  should  be 
mpairtd,  or  its  credit  fall '.'" 

Now  did  that  cany  the  idea  that  the  works 
vere  to  be  abandoned,  or  even  suspended  for  any 
t  length  ot  time?  He  submitted  to  the  judg- 
ment of  gentlemen  whether  ttiey  had  not  good 
eason  k)  suppose  that  the  works  would  be  con- 
inued  as  soon  as  the  stocks  were  brought  up  to 
)ai,  and  money  could  be  procured  at  a  reasonable 
ate  of  interest  ?  But  he  had  another  address  from 


905 


which  he  would  read  an  extract  to  show  that  on 
this  subject  there  could  be  no  mistake.  It  was  an 
extract  from  the  Address  of  the  democratic  state 
convention  of  the  same  year,  '42,  the  delegates 
holding  the  following  language: 

"This  suspension  of  further  expenditures  on  the  public 
works,  which  had  taken  place  in  fact,  was  declared  by  law 
except  so  far  as  it  was  necessary  to  preserve  the  work  al- 
ready done  from  dilapidation.  This  course  was  inevita- 
ble; not  indeed  as  a  permanent  mtaaure,  but  until  there- 
sources  of  the  state  could  be  called  out  and  its  prostrate 
credit  invigorated  and  restored," 

He  again  asked  the  Convention  it  there  was  any 
indication  of  an  abandonment  of  the  woiks  in  this, 
or  even  a  long  extended  suspension  of  them  ? — 
Should  they  then  be  met  by  the  statement  that 
stocks  were  below  par  and  that  money  could  not 
be  obtained  but  at  a  great  sacrifice  ?  No.  No  one 
there  would  say  that,  nor  any  man  elsewhere.  It 
was  known  to  the  world  that  our  state  stocks  were 
as  good  as  gold  There  were  no  better  stocks  in 
the  country.  In  saying  this,  he  did  not'wish  to 
be  understood  to  intimate  that  he  would  have  the 
state  issue  its  credit,  or  increase  its  debt  to  go  on 
and  finish  the  canals,  though  strict  justice  would 
require  that  it  should  do  so.  They  would  submit 
with  all  patience  and  humility  to  the  fair  working 
of  the  canals,  but  they  required  the  canals  to  have 
a  fair  chance.  There  was  a  feeling  in  the  stale 
against  an  increase  of  the  state  debt,  and  he  con- 
sidered it  his  duty  to  sustain  that  principle;  but 
justice  could  be  done  to  the  sections  of  country  of 
which  he  had  spoken,  consistently  with  that  sen- 
timent. It  had  been  suggested  by  the  gentleman 
from  Herkimer  that  the  whole  revenues  of  this  slate 
which  are  produced  by  the  canals  alone — for  there 
are  no  other  worthy  of  notice — should  be  pledged 
for  the  extinguishment  of  the  debt  of  the  slate  in 
the  time  he  has  specified;  and  the  reason  assigned 
was  that  the  lolls  would  fall  off.  Now  he  (Mr. 
C.)  did  not  belfeve  that  there  would  be  any  dimi- 
nution of  revenue  from  the  canals.  To  that  sub- 
ject however,  ample  justice  had  been  done  by  his 
friends  Irom  Erie,  Ontario  and  Chautauque,  and 
therefore  he  should  not  attempt  to  do  that  which 
they  had  done  so  well. 

He  should  merely  say,  that  we  had  two  great 
objects  to  effect — one  was  to  secure  beyond  all 
contingency  the  payment  of  the  public  debt,  and 
the  other  was  to  secure  the  completion  of  the  un- 
finished works  within  a  reasonable  time.  And  in 
view  of  the  facts  which  he  had  submitted  to  the 
committee,  he  asked  if  there  was  not  something 
due  to  the  portion  of  the  state  whence  he  came ; 
and  if  the  revenues  should  not  be  so  managed  as 
to  secuie  the  accomplishment  of  both  the  objects 
he  had  just  specified.  It  could  readily  be  done, 
but  not  by  the  proposition  of  the  gentleman  from 
Herkimer.  Whoever  voted  for  that  proposition, 
voted  to  abandon  the  canals,  and  it  remained  for 
the  Convention  to  say  if  such  manifest  injustice 
should  be  perpetrated.  There  was  no  danger  of 
afalling  offin  the  revenues  of  trie  canals — nay,  they 
might  go  on  and  complete  the  canals;  and  add  to 
them  railroads,  and  the  business  of  the  state  would 
increase  faster  than  the  facilities  of  transit.  If 
the  proposition  of  the  gentleman  from  Erie  (Air. 
STOW)  were  adopted,  both  the  enumerated  desira- 
ble objects  would  be  accomplished.  He  proposed 
to  appropriate  81,500,000  for  the  first  ten  years,  to 
pay  the  interest  and  create  a  sinking  fund  to  re- 


deem the  principal  of  the  debt,  and  the  best  cal- 
culation of  the  Comptroller  did  not  make  the  debt 
more  than  $22,000,000.  The  proportion  of  the 
gentleman  from  Erie,  would  pay  the  whole  of  that 
debt  in  23  years,  and  afford  a  sufficient  sum  to  en- 
able  the  state  to  go  on  prudently  and  economically 
with  the  enlargement  of  the  Erie  canal,  and  com- 
plete the  two  unfinished  canals;  arid  thus  save 
the  four  millions  of  dollars  to  the  state  that  have 
been  expended  upon  them.  But  this  was  not  all. 
The  gentleman  from  Herkimer  again  and  agaiu 
had  lold  them  that  good  faith  was  a  jewel.  Mr. 
C.  joined  with  the  gentleman  in  the  reiteration  of 
that  truth  ;  and  he  called  upon  the  Convention  to 
act  with  good  faith  to  the  neglected  portion  of  the 
state  for  which  he  had  been  pleading  Did  the 
gentleman  from  Herkimer  intend  to  do  this  ?  No; 
on  the  contrary,  he  desired  effectually  to  provide 
for  the  sale  of  those  unfinished  works;  he  would 
alienate  them,  and  sell  them  out  body  and  breeches. 
[Laughter.]  Did  the  gentleman  from  Herkimer 
ever  intend  to  prosecute  the  enlargement  of  the 
Erie  canal  ?  No  such  thing.  The  word  "enlarge- 
ment" was  carefully  excluded  from  the  report. — 
He  proposed  an  appropriation  for  the  "improve- 
ment" of  the  Erie  canal,  and  what  was  meant  by 
"improvement/'  He  proposed  to  lengthen  the 
locks — take  out  the  upper  or  the  lower  gate  and 
splice  them — clean  out  or  bottom  out  the  canal. 
And  would  gentlemen  be  caught  with  such  a  bait? 
His  constituents  and  the  people  of  Western  New 
Yok  never  would  submit  to  such  a  proposition  as 
that.  He  had  fairly  and  plainly  presented  the 
facts  of  the  case  to  the  Convention.  He  had  shown 
the  origin  of  this  work,  and  its  situation.  He 
had  read  what  was  said  of  it  in  the  Legislative 
address  of  1842,  and  also  by  the  democratic  con- 
vention of  that  year,  and  would  the  convention 
say,  when  it  came  here  to  do  justice  to  every  part 
of  the  state,  aside  from  party  predictions,  that 
important  parts  of  it  should  be  sold  out,  and  alien- 
ated, and  that  all  the  improvement  to  the  Erie 
canal  should  be  the  lengthening  of  the  locks  ? — 
He  however  would  say  nothing  further  on  that 
subject.  There  were  gentlemen  here  much  bet- 
ter qualified  for  the  task  than  he  was  ;  but  he  had 
a  duty  to  discharge,  and  he  should  do  it  firmly, 
relying  on  the  good  sense,  intelligence  and  justice 
of  the  Convention  to  sustain  him.  Was  it  possi- 
ble that  the  gentleman  from  Herkimer  could  be 
deluded  into  the  belief  that  the  delegates  to  this 
Convention  would  be  brought  to  support  his  pro- 
position ?  Did  he  suppose  that  he  could  have  the 
support  of  the  friends  of  the  Erie  enlargement? 
The  gentleman  from  Clinton  (Mr.  STETSON)  had 
said  there  was  no  democrat  here  that  would  vote 
against  the  article  reported  by  the  committee. 
This  he  denied,  and  he  asserted  that  no  democrat 
who  was  governed  by  just  principles  would  vote 
for  it.  He  was  at  issue  with  the  gentleman  from 
Clinton  on  that  subject. '  But  after  all  this  if  he 
were  mistaken  in  the  opinion  which  he  had  ex- 
pressed, and  the  report  of  the  gentleman  from 
Herkimer  is  to  prevail,  then  he  would  advise  this 
Convention  to  take  down  that  emblem  of  justice 
which  stands  in  bold  relief  upon  the  dome  of  this 
Capitol,  and  haul  down  those  stars  and  stripes, 
and  run  up  in  their  stead  the  black  flag  of  repu- 
diation, and  take  to  yourselves  a  name— not  that 


906 


of  Democracy,  but  one  corresponding  more  with 
your  principles. 

Mr.  C.  said  he  had  another  matter  to  notice, 
and  he  trusted  the  Convention  would  continue  its 
patient  attention  a  few  moments  longer.  It  had 
been  said  that  the  laws  for  the  construction  of  the 
Genesee  Valley  and  Black  River  canals  were  pro- 
cured by  fraud.  Such  a  statement  he  was  bound 
to  notice  for  many  reasons.  One  was,  that  he  was 
a  member  of  the  Assembly  at  the  time  the  Gene- 
8ee  Valley  canal  bill  passed,  and  he  there  stated 
hat  if  fraud  was  connected  with  it  it  was  without 
his  knowledge.  But  he  denied  the  statement ;  it 
was  a  slander  on  the  legislature  of  which  he  was 
a  member,  and  of  the  constituency  that  he  repre- 
sented. No  canal  act  ever  passed  with  greater 
unanimity  than  that  for  the  Genesee  Valley  canal. 
And  after  being  passed  by  a  large  majority — in 
fact  it  was  almost  unanimous — it  was  sent  to  the 
executive,  than  whom  a  more  upright  man  was 
not  to  be  found  in  the  state ;  and  if  there  had  been 
fraud  in  the  matter,  that  Governor  never  would 
have  sanctioned  it.  He  again  most  emphatically 
denied  that  there  was  fraud  in  the  matter.  Mr. 
C.  then  referred  to  some  action  taken  in  the  legis- 
lature of  1837,  on  a  resolution  introduced  by  Dr. 
CASH  of  Orange,  of  the  27th  February,  of  that 
Year,  in  relation  to  the  postponement  of  the  works 
on  this  canal,  and  after  an  able  argument  on  the 
3d  of  March,  1837,  it  was  almost  unanimously  vo- 
ted down,  only  five  being  found  to  sustain  it, 
while  ninety-lour  were  found  voting  on  the  other 
side.  After  this  expression  of  the  legislature, 
had  not  the  people  the  right  to  believe  that  it 
was  the  settled  policy  of  the  state  to  go  on  and 
complete  these  works  ?  And  what  was  the  ac- 
tion of  the  government  in  relation  to  it  ?  Why, 
money  was  permitted  to  by  used  for  the  construc- 
tion of  these  canals,  and  they  were  so  far  advan- 
ced that  at  one  time  but  about  $500,000  was  ne- 
cess  try  to  put  the  Black  River  canal  in  operation. 
For  the  Genesee  Valley  canal  too,  three  fourths 
of  all  that  was  required  was  expended,  which  by 
the  policy  now  proposed  was  to  be  scattered  to 
the  winds.  It  was  true  that  our  embarrassed  fi- 
nancial condition  required  a  pause  in  our  expen- 
ditures, and  the  avowed  object — to  raise  the  credit 
of  the  state,  that  money  might  be  obtained  at  par 
for  the  completion  of  the  works — was  a  good 
one. 

Mr.  BURR  had  one  word  to  say.  If  that  meant 
fourteen  minutes  he  might  want  as  much  time. 
He  desired  only  to  define  his  position.  Mr.  B. 
went  on  to  remark  that  when  the  project  of  con- 
structing a  canal  from  the  Hudson  river  to  Lake 
Erie  was  first  started,  it  found  little  favor  in  that 
section  of  the  state  to  which  he  belonged.  It  was 
(said  he)  ridiculed  by  prominent  men  among  us, 
and  strenuously  opposed  by  our  representatives 
on  this  floor.  A  large  majority  of  my  neighbors 
deemed  it  a  visionary  scheme.  But,  sir,  I  some- 
times form  my  own  opinions  without  stopping  to 
enquire  whether  they  coincide  with  those  of  my 
neighbors.  I  did  so  in  this  case.  I  believed  in 
the  practicability  of  such  a  work.  I  believed  that 
the  state  might  borrow  the  necessary  means  to 
construct  it  with  a  reasonable  prospect  that,  when 
finished,  it  would  yield  a  revenue  sufficient  to  pay 
the  interest  of  its  debt,  and  gradually  to  reim- 
burse tho  principal.  I  believed  that  such  a  work 


would  greatly  increase  the  population  and  wealth 
of  that  portion  of  the  state  through  which  it  pass- 
es; when,  at  the  same  time,  it  might  diminish 
both  in  other  sections  remote  from  it ;  that  there- 
fore it  would  be  unjust  to  raise  the  necessary 
funds  by  a  general  tax  upon  the  people  of  the 
state.  When  this  great  work  was  completed,  I 
doubted  the  policy  of  adding  side  cuts  to  it,  for  I 
believed  that  every  branch  that  could  be  added, 
except  the  Champlain  canal,  would  diminish  its 
value.  But  one  branch  after  another  was  added, 
and  at  length  the  magnificent  scheme  of  the  en- 
largement was  projected  and  pursued,  until,  in 
1842,  all  was  "  brought  up  standing"  as  a  sailor 
would  say.  Now,  sir,  I  confess  I  am  not  quite 
such  an  ardent  canal  man  as  I  once  was.  I  should 
be  willing  to  have  the  state  sell  out  the  whole  es- 
tablishment, if  purchasers  could  be  found  who 
would  take  it,  even  at  cost.  But,  sir,  I  am  not 
altogether  hostile  to  the  canals — and  as  I  am  sa- 
tisfied that  they  are  to  remain  the  property  of  the 
state,  I  should  be  glad  to  see  them  finished,  and 
placed  in  a  situation  to  produce  the  greatest  a- 
mount  of  revenue,  if  it  can  be  done  without  in- 
creasing the  debt,  or  subjecting  the  people  of  the 
state  to  a  direct  tax  ;  and  shall  endeavor  to  vote 
in  accordance  with  these  views. 

Mr.  BASCOM  said  that  he  had  not  intended 
until  this  morning  to  say  a  word  on  this  subject, 
!  feeling  that  there  were  those  here  who  had  some- 
thing like  a  local  interest  to  look  after,  that  would 
lead  them  to  give  to  it  the  necessary  attention, 
and  feeling  also  that  as  the  debate  was  soon  to 
close  he  should  not  be  justified  in  going  at  large 
into  details,  with  which  perhaps  he  was  not  as 
conversant  as  some  others.  But  there  were  con- 
siderations that  had  not  been  dwelt  upon  to  the 
extent  at  least  that  seemed  to  be  called  for,  under 
the  circumstances  in  which  we  found  ourselves — 
for  it  was  not  to  be  disguised  that  we  had  local 
and  conflicting  opinions,  perhaps  local  prejudi- 
ces long  indulged,  growing  out  of  local  interests, 
that  were  to  be  conciliated  and  harmonized  on 
this  question.  Mr.  B.  said  he  happened  to  be  so 
situated  that  he  had  no  such  feeling  to  indulge — 
no  interest  or  feeling  that  was  not  common  to 
every  gentleman  here — for  the  little  county  that 
he  represented  had  all  that  she  could  ask  or  de- 
sire in  the  way  of  internal  improvement,  and 
nothing  that  we  could  do  could  impair  her  posi- 
tion. But  he  could  not  participate  in  the  feeling 
that  would  shut  down  the  gate  against  the  people 
of  the  Genesee  Valley  or  the  Black  River.  He 
could  not  but  turn  back  to  other  times,  when  the 
county  of  Seneca  was  differently  situated.  He 
was  one  of  the  two  or  three  in  this  body  who 
were  born  and  reared  west  of  the  county  of  Onei- 
da — and  he  could  remember  when  that  section  of 
the  state  wras  riot  only  shut  out  from  the  eastern 
markets,  but  cut  off  almost  from  intercourse  with 
the  people  of  the  eastern  section.  He  could  re- 
member with  what  gratitude  the  efforts  and  influ- 
ence of  the  great  and  noble  hearted  men  of  the 
east  in  favor  of  the  canal  policy  was  received 
there  ;  for  at  that  time,  the  people  of  Onondaga 
were  hesitating  whether  to  remain  at  ii< 
and  struggle  with  their  position  as  best  they 
could,  or  emigrate  to  the  far  off'  and  then 
dangerous  and  fatal  climate  to  them  of  th 
wesi—  and  many  ot  ttiem  did  emigrate  only  to  ia 


907 


their  hones,  alter  a  few  years  of  dial,  on  the  banks 
of  the  VW.hash.    and    other    points   of  emigration 

vard.     The  people  of  the  western  section  of 
this  state  had  omitted  no  opportunity  to  repay  the 

it  gratitude  they  owed  to  their  eastern  breth- 
ren, and  to  the  people  of  the  whole  state;  and 
Mr.  E.  glanced  rapidly  over  the  evidences  which 
legislation  presented  of  the  liberal,  generous  and 
enlightened  course  which  the  representatives  of 
the  western  section  had  ever  pursued,  in  refer- 
ence to  the  lateral  improvements  and  other  enter- 
prises in  which  other  sections  of  the  state  were 
interested — and  this  too  with  the  knowledge  that 
the  last  of  these  improvements  and  enterprises 
must  ultimately  be  a  charge  on  their  resources  — 
Mr.  B.  urged  the  cultivation  of  a  similar  spirit,  of 
mutual  sympathy  and  regard  between  all  sections 
of  the  state.  But  what,  he  asked,  was  this  pro- 
position  of  the  standing  committee?  (Mr.  HOFF- 
MAN'S.) It  was  on  its  face  a  cold,  heartless  pro- 
position, having  for  its  object,  if  not  the  entire 
prostration,  at  least  the  abandonment  of  the  long 
cherished  canal  policy  of  the  state.  It  did  not 
provide  for  the  enlargement.  It  was  silent  in  re- 
gard to  the  two  unfinished  canals.  Nor  was  there 
any  thing  in  the  whole  argument  of  the  gentle- 
man from.  Herkimer  (Mr.  HOFFMAN)  about  the 
propriety  or  the  possibility  of  the  enlargement- 
On  the  contrary,  the  burthen  of  that  argument 
was  that  it  was  entirely  unnecessary — that  there 
was  to  be  a  culminating  point  in  the  canal  rev- 
enues and  that  we  ought  to  struggle  along  for 
some  ten  years,  as  well  as  we  could,  and  that 
by  that  time  trade  would  have  sought  and  found 
other  channels  to  market,  and  thus  relieve  us 
from  the  necessity  of  jjoing  on  with  the  work. — 
Mr.  B.  went  on  to  contrast  the  different  proposi- 
tions witii  which  a  compromise  had  been  sought 
to  be  effected  between  extreme  opinions  on  the 
subject  of  the  debt.  All,  he  said,  concurred  in 
the  policy  of  making  entire  and  adequate  provis- 
ion for  the  payment  of  the  public  debt — and  the 
only  question  presented  was  a  question  of  time — 
and  how  long  policy  and  economy  called  for  an 
extension  of  the  debt.  But  these  propositions  of 
compromise  were  such  by  calculations  of  interest, 
and  we  had  been  shown  how  many  millions  it 
would  cost  to  postpone  the  payment  of  a  debt — as 
if  it  was  an  argument  why  we  should  not  make 
improvements  which  the  public  interest  demand- 
ed, that  we.  must  do  it  on  similar  terms  with  in- 
dividuals who  undertook  any  enterprise.  If  there 
was  any  thing  in  this  interest  argument,  it  was 
this — that  the  State  being  able  to  borrow  money 
at  a  less  rate  than  individuals,  should  in  the  short- 
est possible  time,  draw  from  those  who  had  to  pay 
more  for  the  use  of  money,  the  means  of  payment. 
But  he  would  not  go  into  this  interest  argument, 
nor  the  salt  argument,  which  had  already  been 
elaborately  argued.  He  was  happy  to  see  that 
gentleman  who  had  sympathised  with  the  gen- 
tleman from  Herkimer  (iVlr.  HOFFMAN)  had  seen 
fit  to  change  ground  and  change  tone  on  this  ques- 
tion, and  to  give  a  little  hope  to  the  friends  of  the 
enlargement  and  of  the  two  unfinished  canals, 
that  they  might  look  forward  ultimately  to  the 
completion  of  these  works — though  he  confessed 
the  hope  was  small  enough.  Mi\  B.  alluded  to 
the  compromise  offered  by  Mr.  STOW,  and  to  the 
appeal  which  it  had  become  the  duty  of  that  gen- 


tleman to  make,  in  the  absence  of  any  cham- 
pion of  the  canal  interest  from  the  quarter 
where  all  were  looking  for  it  and  had  a 
right  to  expect  it.  He  asked  where  was 
the  city  of  New  York  on  this  question  ? — 
Why  it  was  that  the  queen  city  of  the  west 
was  compelled  to  come  forward  unaided  by  the 
valuable  co-operation  of  any  of  the  able  repre- 
sentatives from  the  city  of  New-York  in  behalf 
>f  the  canal  interest  ?  He  insisted  that  it  was  the 
city  of  New  York  that  was  mainly  interested  in 
keeping  this  great  channel  of  business  in  efficient 
order  to  meet  all  the  demands  of  trade — that  the 
interest  of  Buffalo  was  a  comparatively  minor 
matter — and  that  from  New  York,  of  all  other 
places  in  this  Union,  it  was  proper  that  this  ap- 
peal should  have  come.  And  yet,  we  heard  a 
iiote  of  another  description  from  that  great  city, 
(alluding  to  Mr.  TILDEN'S  speech  yesterday.) 
We  had  an  essay  on  canalling  from  that  quarter, 
and  coupled  with  an  avowal  that  the  delegation 
from  the  city  were  all  internal  improvement  men, 
entertaining  no  hostility  to  the  completion  of  the 
public  works — we  had  a  labored  argument  to 
show  that  a  little  lengthening  of  the  locks  and  a 
Little  deepening  of  the  canal  were  all  that  was 
necessary  to  the  interests  of  New  York  or  of  the 
state  !  And  this  too  whilst  a  rival  city,  with  but 
a  portion  of  the  wealth  of  our  great  commercial 
emporium,  was  putting  forth  all  her  energies  to 
counteract  the  natural  advantages  of  that  great 
mart  of  the  Union.  He  confessed  to  a  little  state 
pride  in  contemplating  our  noble  works  of  inter- 
nal improvement,  and  the  position  of  the  state  as 
the  great  highway  through  which  the  inexhausti- 
ble products  of  the  illimitable  west  must,  unless 
obstructed  by  a  narrow  policy  and  a  still  narrow- 
er canal,  flow  in  its  course  to  the  sea-board.  And 
he  confessed  also  to  some  surprise  to  see  these 
great  works,  the  pride  and  glory  of  the  State  and 
of  the  Union,  made  the  object  of  local  and  illi- 
beral jealousies  and  saddled  with  what  had  been 
well  termed  trumped  up  amounts  of  indebt- 
edness, calculated,  if  not  designed,  to  bring 
them  into  odium  and  contempt  with  the  people. 
As  to  direct  taxation,  of  which  so  much  had  been 
said  in  the  course  of  this  debate,  Mr.  13.  said  that 
was  not  by  far  the  worst  evil  that  could  bel'al  us. 
lie  denied  the  neces>iiy  for  direct  taxation  to  sup- 
port government,  or  that  such  would  necessarily 
be  the  effect  of  certain  propositions  belure  Us — 
but  he  wondered  at  the  objection  to  direct  taxa- 
tion as  a  matter  of  principle,  coupled  vviih  a  lean- 
ing towards  the  principle  taxing  the  right  of  way 
to  do  it — towatds  the  principle  of  taxing  labor 
rather  than  property  to  support  government.  All 
knew  the  effect  of  direct  taxation  to  excite  a 
greater  scrutiny  on  the  part  of  those  \\ho  paid  it, 
to  its  expenditure,  and  to  promote  economy  in 
public  expenditure — and  all  must  see  that  it  the 
rich  revenues  of  the  Erie  c.mal  were  to  be  sala- 
ried and  fed,  the  tendency  would  be  lo  profuse 
and  lavish  expenditure,  at  the  expense  of  the  toil- 
ing million.  He  trusted  \\e  had  done  something 
towards  the  reduction  of  the  expense  of  government^ 
and  that  this  should  satisly  gentlemen  that  we  were 
not  to  be  taxed  to  death .  Let  this  be  carried  out  in 
your  counties  and  towns,  and  his  word  for  it,  your 
taxes,  which  now  run  up  to  four  millions,  would 
be  reduced  one  million,  and  without  any  injustice 


908 


to  your  official  list.  He  scouted  the  idea  of  the 
great  state  of  New  York,  with  her  immense  re- 
sources and  with  her  position  in  the  Union,  being 
bankrupted,  and  her  high  credit  prostrated,  by 
the  completion  of  the  enlargement  and  of  the 
two  unfinished  canals.  He  rejoiced  to  see  a  pros- 
pect that  the  compromise  offered  by  the  gentle- 
man from  Erie,  or  something  like  it,  was  likely  to  be 
adopted,  which,  without  the  issue  of  a  new  bond, 
or  the  increase  of  the  public  debt  one  dollar, 
would  ultimately  lead  to  the  completion  of  the 
great  system  of  internal  improvement,  in  which 
not  the  State  only,  but  the  Unioiv,  was  so  largely 
interested. 

The  committee  here  rose  and  reported  progress. 
The  Convention  then  took  a  recess. 

AFTERNOON  SESSION. 

Mr.  TAN  SCHOONHOVEN  addressed  the  com- 
mittee at  length  in  support  of  the  proposition  of- 
fered by  Mr.  STOW. 

Mr.  MARVIN  then  obtained  the  floor  and  mov- 
ed that  the  committee  rise. 

The  committee  rose  and 

Tbe  Convention  adjourned  to  8i  o'clock  to-mor- 
row morning. 

SATURDAY,  (93rd  day,)  Sept.  19' h. 

Mr.  ALLEN  presented  the  remonstrance  of 
Henry  Parish  and  other  citizens  of  New  York 
against  the  liability  of  stockholders  in  corporations 
beyond  the  amount  of  stock  held  by  them.  Mr. 
A,  mo\cj<i  its  printing.  Referred. 

The  PRESIDENT  presented  a  communication 
Irom  T.  Clowes,  of  Queens  county,  setting  forth 
thai  he  had  made  many  and  very  valuable  discove- 
ries in  arithmetic,  and  asking  for  the  use  of  the 
Assembly  Chamber  some  evening  next  week. 

Mr.  NICOL  said  that  be  understood  this  gen- 
tleman had  made  many  very  valuable  discoveries 
in  arithmetic.  He  moved  to  allow  him  to  use  the 
chamber. 

Cries  of  <*"h  no." 

Mr.  SWACKHAMER :  Do  not  let  us  have  a  de- 
bate on  that. 

Mr.  MANN  :  I  move  to  lay  it  or*  table.  Agreed 
to 

Mr.  YOUNGS  moved  to  appoint  a  committee  of 
five  to  prepare  an  address  to  the  people  in  relation 
to  the  results  of  this  Convention. 

Laid  on  the  table  by  consent. 

Mr.  WORDEN  said  that  he  really  did  not  know 
what  they  had  to  address  the  people  about. — 
(Laughter")  He  thought  they  had  addressed  them 
through  their  speeches  quite  enough,  and  per- 
haps  a  little  too  much. 

Mr.  STETSON  offered  the  following  resolu- 
tion  : 

Resolved,  That  the  committee  of  the  whole  be  instruct- 
ed to  report  this  day,  as  early  as  12  o'clock,  the  first  article 
reported  by  the  committee  on  finance,  together  with  the 
several  amendments  adopted  or  proposed,  and  the  several 
propositions  as  substitutes  or  amendments  referred  to  said 
committee,  and  that  all  such 
pending  amendments.  And 
or  any  amendment 


ae  considered  as 
lat'the  debates  on  said  article 
in  committee  be  limited  to  fifteen  mi- 
Dutea  to  be  made  thereon. 

Mr.  STETSON  said  that  they  must  come  to 
some  conclusion  on  this  subject  right  away.  They 
had  but  13  working  days  left;  and  it  was  highly 
important  that  they  should  now  atop  talking  and 
go  to  work. 


Mr.  CHAMBERLAIN  moved  to  strike  out  the 
words  "  this  day  at  12  o'clock,"  and  insert "  Mon- 
day at  6  o'clock  p.  M,"  It  was  also  very  import- 
ant that  gentlemen  should  be  heard  on  this  great 
subject.  The  gentleman  from  Clinton  (Mr.  STET- 
SON) was  one  of  the  ten  or  dozen  men  who  had 
talked  for  three  months  and  a  half,  and  he  was 
now  willing  to  cut  off  debate.  Perhaps  that  gen- 
tleman did  not  like  to  hear  the  discussion  of  this 
question.  He  protested  against  this  rule  being 
applied  to  those  who  had  sat  here  for  three  and  a 
half  months,  listening  to  the  endless  speeches  of 
that  gentleman  and  a  few  others.  He  meant  to  be 
plain  on  this  point.  He  trusted  the  Convention 
would  not  tolerate  such  a  move  as  this.  All  he 
asked  was  that  the  few  gentlemen  who  had  kept 
silent,  and  not  consumed  the  time  of  the  Conven- 
tion, might  be  heard  on  a  subject  in  which  they 
were  so  deeply  interested;  when  they  had  uncom. 
plainingly  allowed  other  gentlemen  to  talk  away 
all  the  time. 

Mr.  LOOM  IS  said  that  he  had  occupied  timer 
it  wag  true,  but  not  very  long  at  any  one  time — ~ 
but  he  had  been  unwilling  to  restrict  debate;  but 
the  time  had  come  when  they  must  do  so,  and  he 
would  vote  to  restrict  it  to  15  minutes. 

Mr.  CHAMBERLAIN  said  he  would  not  object 
to  speeches  of  15  minutes, 

Mr.  ST.  JOHN  said  that  the  gentleman  from 
Herkimer  (Mr.Loc-Mis)  had  made  over  70  speech- 
es  on  the  judiciary,  and  some  pretty  long  ones. 

Mr.  WORDEN  asked  if  every  attempt  to  restrict 
debate  had  not  been  a  mere  waste  of  time  ? 

Mr.  LOOMIS  was  surprised  that  gentlemen 
could  not  see  the  importance  of  this.  They  had 
had  speeches  day  after  day  that  were  not  listened 
to  by  the  Convention — speeches  which  had  not 
furnished  any  instruction — and  he  asked  il  they 
had  time  now  to  waste  in  this  manner  ?  Were 
they  to  go  home,  to  the  eternal  disgrace  of  every 
one",  by  leaving  many  important  subject*  untouch- 
ed, merely  that  certain  gentlemen  might  gain  an 
im.nortality  by  making  speeches,  which  it  wa& 
said  somebody  was  going  to  publish  in  a  book? — 
The  time  had  come  for  voting,  and  he  was  willing 
to  take  the  sense  of  the  Convention  on  any  propo- 
sition, after  an  explanation  of  fifteen  minutes. 

Mr.  MANN  said  he  would  not  debate  this,  and 
above  all,  he  would  not  waste  two  or  three  hours 
in  the  discussion  of  a  simple  resolution.  He 
therefore  moved  the  previous  question. 

It  was  seconded,  57  to  19. 

The  main  question  was  ordered. 

Mr.  CHAMBERLAIN  wished  to  change  his 
former  amendment  td  Monday,  12,  M. 

Mr.  TOWNSEND  :  Say  six  this  evening,  and 
let  us  have  an  evening  session. 

Mr.  CHAMBERLAIN'S  amendment  was  nega- 
tived. Ayes  34,  noes  58—92. 

The  resolution  was  then  adopted.  Ayes  67, 
noes  26. 

Mr.  KINGSLEY  moved  that  there  be  an  after- 
noon session  to-day. 

It  was  agreed  to,  ayes  48,  noes  37. 

EVENING  SESSIONS. 
Mr.  BAKER  offered  the  following  :— 
'  Ordered  that  on  and  after  Tuesday  next,  this  conven- 
tion will  hold  eve'ning  sessions  to  commence  at  halt-past 
7  o'clock. 
Mr.  NICOLL  called  for  the  yeas  and  nays  on 


909 


the  adoption  of  the  order,  arid  there  were  yeas  '» J , 
nays  41. 

The  Convention  then  went  into  committee  of 
the  whole  on  the  report  on 

THE  CANALS,  FINANCES,  &c. 

Mr.  W.  TAYLOR  resumed  the  chair. 

The  question  was  taken  upon  the  amendment 
offered  by  Mr.  STOW,  and  it  was  negatived,  41 
to  52. 

Mr.  WORDEN  offered  the  following  amend- 
ment, as  a  substitute  for  the  1st,  2d,  3d  and  4th 
sections : 

"  The  legislature  at  its  first  session  after  this  Constitu- 
tion takes  effect,  shall  provide  by  law,  in  the  manner  here- 
in provided,  for  the  creation  of  a  sinking  fund  to  pay  the 
canal  debt  and  the  general  fund  debt  of  this  state  and  the 
interest  on  such  debts,  and  for  such  purposes,  lor  the  peri- 
od of  ten  years  from  and  alter  January  1,  1847,  the  sum  of 
$1,500,000,  and  from  and  after  the  1st  of  January,  1857, 
$•2,000,000,  until  such  debts  and  interest  are  fully  paid, 
shall  be  in  each  fiscal  year,  and  at  that  rate  tor  a  shorter 
period  from  the  revenues  and  tolls  of  the  canals  of  the 
state,  after  paying  the  expenses  of  collection,  superintend- 
ence and  repairs,  be  set  apart  for  such  sinking  fund  and 
pledged  to  the  payment  of  such  debts  and  interests  in  such 
manner  that  all  the  preferences  and  pledges  in  favor  of  the 
creditors  of  this  state  shall  be  preserved  and  continued.— 
After  applying  the  aforesaid  sums  to  supply  the  said  sink- 
ing funds,  there  shall  be  paid  of  the  remaining  nett  reve- 
nues and  tolls  of  the  said  canals,  $200,000  annually  into 
the  Treasury  of  this  state.  The  remaining  nett  revenues 
and  tolls  of  the  canals  shall  be  appropriated  and  applied 
to  the  completion  of  the  enlargement  or  improvement  of 
the  Erie  canal  and  the  completion  of  the  other  unfinished 
canals  of  the  state." 

Mr.  WORDEN  insisted  that  the  agricultural 
portions  of  New-York  had  paid  the  expenses  of 
this  canal. 

Mr.  CHATFIELD  had  no  idea  that  those  coun- 
ties like  his  own  that  derive  no  benefit  from  the 
canals  should  be  taxed  so  heavily  as  they  now 
are. 

Mr.  LOOMIS  then  moved  to  amend  the  report 
— speaking  in  favor  of  his  proposition  until  his 
fifteen  minutes  had  expired.  His  amendment  is 
as  follows — being  part  of  his  proposition  submit- 
.  ted  a  day  or  two  since — to  strike  out  the  first  six 
lines  of  section  1,  and  insert — 

After  paying  the  expenses  of  collection,  superintendence 
and  ordinary  repairs,  there  shall  be  appropriated  and  set 
apart  out  of  the  revenues  of  the  state  canals  in  each  year, 
commencing  on  the  first  June,  1846,  the  sum  of  $1,300,000 
until  first  June,  1855,  and  from  that  time  the  sum  of 
$1,700,000  in  each  year,  as  a  sinking  fund  to  pay  the  in- 
terest, &c. 

Mr.  WORDEN  rose  to  a  point  of  order.  How 
did  the  gentleman's  proposition  differ  from  his 
own  ? 

The  CHAIR  said  the  gentleman  from  Ontario 
had  offered  a  substitute,  the  gentleman  from  Her- 
kimer  had  offered  an  amendment,  and  the  amend- 
ment took  precedence  of  a  substitute. 

Mr.  WORDEN  said  that  in  reality  it  was  the 
same  as  his  own. 

Mr.  LOOMIS  said  that  he  should  be  under  the 
necessity  of  modifying  his  amount,  having  dis- 
covered an  error  in  the  computation  of  interest; 
this,  instead  of  being  $237,000  a  year,  amounted 
to  £337,000  or  $324,000  as  some  have  stated. 

Mr.  TALLMADGE  spoke  in  favor  of  these  ca- 
nals, and  of  their  enlargement  in  a  judicious  man- 
ner, and  as  speedily  as  possible  consistent  with 
the  public  interest. 

Mr.  HOFFMAN  said  that,  the  amendment  of 
Mr.  WORDEN  was  but  the  revival  of  a  proposition 


that  had  already  been  voted  down.  It  was  a  pro- 
position to  increase  the  state  debt,  and  nothing 
else,  and  would,  if  adopted,  bring  the  state  into 
disgrace,  by  extending  the  time  in  which  it  was 
pledged  to  pay  its  debt.  The  proposition  of  his 
colleague  (LooMis)  would  pay  the  debt  within  the 
prescribed  limit,  it  is  true,  but  then  it  would  in- 
crease the  amount  the  state  would  have  to  pay  in 
interest  more  than  $1,000,000  ! 

Mr.  TALLMADGE  again  took  the  floor.  He 
said  that  all  who  would  take  the  pains  to  examine 
this  continent  from  the  Gulf  of  Mexico  to  the 
Canadas,  must  be  convinced  that  the  commerce  of 
the  great  west  must  come  through  this  state.  The 
God  of  Heaven  and  of  nature  had  given  us  advan- 
tages of  which  we  could  not  be  deprived,  and  in- 
stead of  complaining  that  Boston  tapped  this  com- 
merce at  Albany,  we  should  help  her  to  tap  the 
commerce  on  the  St.  Lawrence  at  Montreal.  He 
depicted  the  joyful  hallelujahs  through  this  state 
on  the  passage  of  the  first  boat  from  Buffalo  to 
Albany,  mothers  standing  on  the  banks  and  dating 
the  ages  of  their  children  from  that  day — and  con- 
trasted this  feeling  with  the  funeral  dirge  that 
would  be  heard  through  the  state  if  the  policy 
should  now  be  changed.  He  entreated  the  Con- 
vention to  let  the  enlargement  of  the  Erie  canal 
go  on  peaceably  and  certainly. 

Mr.  HOFFMAN  said  that  as  to  the  remark 
which  had  been  very  unjustly  thrown  out  here  as 
to  the  general  government  regulating  our  canal 
commerce,  he  felt  bound  to  deny  any  such  thing. 
He  was  an  officer  of  that  government,  and  he  felt 
bound  to  defend  himself  from  the  sneers  or  impu- 
tation of  being  a  member  of  any  government  so 
mean  as  that  course  would  make  them. 

Mr.  MARVIN  spoke  of  the  proposition  of  the 
gentleman  from  Erie  as  a  proposition  based  on  a 
spirit  of  compromise,  on  which  the  friends  of  ca- 
nals from  the  west  were  united,  and  therefore  it 
was  entitled  to  more  respect  than  it  had  met  with. 
He  protested  against  the  accusations  against  its 
friends,  which  had  been  made,  that  they  were  de- 
sirous to  repudiate  the  faith  of  the  state,  and  to 
break  its  promises.  He  spoke  with  great  warmth 
against  the  injustice  to  be  done  to  the  west,  where 
he  assured  them  a  fire  would  be  enkindled  which 
not  only  the  waters  of  the  Erie  canal  but  of  the 
Atlantic  would  not  be  able  to  extinguish. 

Mr.  BOUCK  entreated  the  gentleman  to  give 
way,  that  he  might  offer  an  amendment,  the  hour 
of  12  when  the  article  must  be  reported  having 
nearly  arrived. 

Mr.  MARVIN  yielded. 

Mr.  JiOUCK  submitted  a  modification  of  Mr. 
LOOMIS'S  proposition,  by  making-  the  appropria- 
tion lor  (he  canal  debt  fcl,2uO,000,  (instead  of 
ft], 300,000, )— -r.o  increase  ilie  appiuprtatioD  for 
the  General  Fund  debt  to  &32o,UOO  (instead  of 
.100,)  and  then  beyond  inese  amounts  appro- 
priate $172,51)0  lor  the  ordinal)  purposes  of  go- 
vernment. 

Mr.  VAN  SCHOONHOVEN  moved  to  strike 
out  of  the  3d  section  (hi-  following:  "  but  no  law 
shall  be  passed  appropriating  or  pledging  for  the 
construction  or  improvement  of  any  canal  or  rail- 
road, any  part  of  such  revenues,  beyond  those  of 
the  year  current,  and  at  time  ol  passing  such 
law." 

The  hour  of  12  having  arrived,  the  Contention, 


910 


by  its  resolution,  having  directed  the  committee 
of  the  whole  to  rise  and  report  at  that  time,  the 
committee  rose  accordingly,  and  iis  chairman  re- 
ported  the  original  article  to  the  Convention,  and 
progress  on  the  other,  asking  leave  to  sit  again 
thereon. 

Mr.  CHATFIELD  moved  to  discharge  the 
committee  of  the  whole  from  the  second  report 
also.  Carried,  49  to  40. 

The  PRESIDENT  then  s'ated  the   question   to 

be  on  the  first  section  of  the   committee's   report. 

Mr.  LOOMIS   moved  to  amend  by  striking  out 

the  first  section,  and  inserting  his  amendment. — 

[Given  above.] 

Mr,  MARVIN  3upposed  the  question  would 
first  be  taken  on  the  amendment  he  had  ottered  in 
committee,  on  behalf  of  Mr.  STOW. 

Mr.  TILDEN  contended  that  the  motion  ot  Mr. 
LOOMIS  was  first  in  order. 

Mr  MARVIN  thought  they  were  to  be  taken  in 
the  order  in  which  they  were  offered  in  commit- 
tee. 

The  PRESIDENT  decided  that  they  took  pre- 
cedence as  they  were  moved. 

In  this  case,  Mr.  STOVV's  amendment  took  pre- 
cedence, because  it  had  been  acted  upon  in  com- 
mittee, and  Mr.  LOOMIS'  had  not. 

Mr.  MARVIN  then  briefly  advocated  the  amend- 
ment, and  warned  gentlemen  of  the  consequences 
of  rejecting  this  important  compromise.  If  the 
plan  of  the  committee  should  be  adopted,  there 
would  be  a  flame,  a  tornado,  and  an  upheaving  of 
the  waters  throughout  the  state. 

Mr.  HOFFMAN  stated  briefly  his  objections  to 
the  amendment  of  Mr.  STOW  expressing  his  pre- 
ference for  that  of  Mr.  LOOMIS. 

Mr.  CAMBRELENG  did  not  see  any  occasion 
for  so  much  excitement  as  had  been  exhibited  by 
the  gentleman  from  Chautauque.  (Mr.  MARVIJV  : 
— "  I  am  not  excited.")  The  gentleman  had  talk- 
ed of  "  flames,"  "tornadoes,"  and   "  upheavings 
of  the  waters,"  in  a  way  which  looked  very  much 
like  excitement ;  but  if  there  was   any   question 
which  should  be  decided  without  excitement  i 
was  this.     The  gentleman  forgot  that  the  people 
of  the  western  section  of  the  State  were   now   in 
the  precise  position  that  the  people  of  the   river 
and  southern  counties    were    some  twenty-fiv< 
years  ago — and  that  the  question  was  not  now  be 
tween  sections  of  our  own  State,  but  between  the 
State  at  large,  and  the  great  west   bordering  th 
lakes.     For  one,  he  wished  the  Erie  canal  was 
as  broad  as  the  Hudson  below  the  Highlands — fo: 
the  west  would  soon  fill  up  with  its  trade  all  the 
avenues  we  and  other  States  would  furnish.     He 
begged  gentlemen,  when   addressing  themselve 
to  local  feelings  and  interests,   to  consider   tha 
we  were  all  alike  interested  in  this  question — 
that  if  the  western  portion  of  the  State  was  en 
titled  to  the  credit  of  paying  a  large  share   of  th 
revenues  of  the  canal,  so  other  portions  of  th 
State  had  contributed  their   share.     He  showe< 
that  the  agriculturists  of  Long  Island  had  a  grea 
and   a  common   interest  now  in  the   matter    wit 
the  people  of  Chautauque.     All  alike  were  inter 
ested   in   the  payment  of  the  debt  contracted    i 
the  construction  of  the  canals,  and  all  agree   tha 
the  debt  must  be  paid.     With  respect  to   the  eu 
minating  point  ot  which  the  gentleman  from  Her 
kimer   (Mr.  HOFFMAN)  had  spoken,  Mr.  C.   sai 


here  was  no  such  point  in  the  business  of  a  canal 
hose  extent  was  commensurate  with  the  great 
Ices,  bordered,  as  they  were,  by  a  region  inex- 
austible  in  its  resources,  at  it  was  illimitable 
lout  its  geographical  boundaries.  We  had  in 
lese  canals  a  proud  monument  of  the  enterprise 
f  the  state,  and  we  had  now  a  proud  duty  to  dis- 
harge  in  extinguishing  the  debt.  Such  was  the 
anguage  of  De  Witt  Clinton,  and  such  should  be 
ur  language.  On  all  sides  there  was  a  desire  to 
ay  the  debt  which  had  been  contracted,  and  to 
herish  these  great  works ;  but  there  was  a  desire 
Iso  in  doing  this,  to  avoid  imposing  direct  taxes, 
hich  would  be  felt  in  the  west  as  well  as  in  the 
ast.  He  hoped  we  should  see  the  time  when  we 
liall  have  a  government  without  a  debt,  and  a 
overnment  supported  without  taxation,  not  al- 
ogether  without  taxation,  but  with  incidental  tax- 
tion  only  which  all  could  afford  to  pay.  He 
egged  western  gentlemen  to  remember  that  of 
>'2, 775,000  collected  by  taxation,  the  city  of  New 
fork  paid  $1,000,000.  Whereas  the  people  of 
tie  west  did  not  send  a  barrel  of  flour  to  New 
fork  without  getting  back  the  amount  paid  for 
ending  it  there.  It  was  useless  to  attempt  in 
his  discussion  to  gainsay  the  great  truth,  that 
he  consumer  paid  the  indirect  tax,  and  that  was 
he  only  tax  he  wished  to  see  in  the  State.  He 
oncluded  by  paying  a  most  eloquent  tribute  to 
he  genius  of  De  Witt  Clinton. 

Mr.  RICHMOND  replied,  insisting  that  the  tolls 
m  the  produce  of  the  west  came  directly  out  of 
he  pockets  of  the  producers,  and  that  the  south- 
ern section  of  the  state  was  immensely  benefitted 
>y  the  canal. 

Mr.  MARVIN  moved  the  previous  question. 

There  Was  no  second— ayes  J2,  noes  92. 

Mr.  JBOUCK  offered  am  amendment,  appealing 
o  Mr.  MARVIN  to  withdraw  his. 

[Mr.  BOUCK'S  amendment  was  read.  It  pro- 
poses  to  reduce  the  appropriation  for  a  sinking 
und  for  the  canal  debt  from  $1,300,000  to  $1,200,- 
000 — to  increase  the  annual  payment  towards  the 
inking  tund  tor  the  general  fund  debt,  from  $200,- 
000  to  $250,000 — and  appropriates,  in  addition, 
$172,500  annually  to  the  support  of  the  govern- 
ment— all  from  the  canal  revenues.] 

Mr.  MARVIN  agreed  to  waive  his  amendment 
until  the  question  should  be  taken  on  that  of  Mr. 
BOUCK. 

Mr.  LOOMIS  said  that  his  first  section  was  of- 
fered as  an  amendment  to  the  first  section  of  the 
article  as  reported  by  the  committee — that  being 
the  section  under  consideration.  Therefore  this 

reposition  of  Mr.  Boucx.whether  adopted  or  not, 
..e  did  not  consider  would  indicate  the  sense  of  the 
Convention  as  to  the  other  amendments,  proposed 
to  the  other  sections. 

Mr.  CHATFIELD  explained  his  object  in  mo- 
ving to  strike  out  the  3d  section  of  the  original 
report.  He  never  would  consent  to  pledge  the 
surplus  revenues  to  the  improvement  of  these 
public  works,  because  he  believed  it  would  in- 
duce the  necessity  of  perpetuating  the  direct  tax. 
After  making  specific  provision  tor  the  State  debt 
and  the  general  fund,  he  would  leave  the  remain- 
der of  the  revenues  at  the  disposal  of  the  legisla- 
ture. Mr.  C.  went  into  a  detailed  examination 
of  the  debts  due  from  the  canals  to  the  general 
fund,  showing  that  giving  the  canals  credit  all 


911 


that  was  due  to<  them,  they  were  in  debt  to  the 

1  land  to  the  extent  of  over  $7,000,000  with 

All  he  desired  was   that  the  funds  of 

should  redeem  their  pledges  and  pay 

bade  these  advances. 

Mr.    STETSON  sustained   the  proposition  of 

Mr.    LOOMIS,   as  it   would  extinguish   the  canal 

debt  within  the  time  limited  by  the  act  of  1842 

.  'lainedby  the  act  of  1844.     He  desired  to 

comply  strictly  with  the  pledges   of  the   act  of 

On  the  other  hand,  the  proposition  of  Mr. 

K.  was  directly  in  violation  of  the  pledges  of 

those   two   acts.     He   objected  to  it  also  on  the 

ground    that  the  appropriation   it  proposed   of 

to  the  general  fund,   was  insufficient, 

and    would  perpetuate  the  direct  tax.     This  he 

could   never   consent  to  while  the  state  had  so 

an  amount  of  surplus  revenue. 
.Air.  ANGEL  said  he  did  not  know  that  it  was 
in  order ;  but  he  desired,  before  the  present  ques- 
tion should  be  sprung  upon  us  again,  to  place  his 
sum-ndment  in  such  a  situation  that  it  might  be 
voted  on.  If  in  order,  he  would  move  it  now — 
and  he  wanted  to  say  a  word  in  explanation  of  it. 
He  wanted  to  call  attention  to  it— and  in  offering 
it,  he  knew  that  he  appeared  in  a  very  suppliant, 
beggarly  attitude — asking,  as  he  did,  the  smallest 
pittance  that  tight-fisted  officers  would  possibly 
give.  But  he  was  forced  to  this.  It  was  repul- 
sive to  him,  and  were  it  a  matter  that  he  was  per  - 
sonilly  interested  in,  he  should  disdain  it.  But 
he  appeared  here  in  behalf  of  suffering  thousands 
that  would  be  glad  of  a  quarter  of  a  loaf,  rather 
than  no  bread  at  all.  His  amendment  proposed, 
that  if  money  could  not  be  raised  on  the  credit  of 
the  sinking  fund,  that  the  surplus  tolls  might  be 
used  for  that  purpose.  He  desired  to  place  this 
surplus  within  reach,  so  that  it  might  be  thus  ap- 
plied, if  the  state  should  be  so  miserably  poor 
that  it  could  not  raise  money  on  the  credit  of  a 
sinking  fund.  Next,  it  proposed  to  pay  into  the 
treasury  for  the  support  of  government,  $200,000 
a  year.  That  was  a  more  liberal  proposition  than 
that  of  the  gentleman  from  Herkimer  (Mr.  HOFF- 
MAN) for  the  support  of  government — for  that 
gentleman  proposed  $172,500  only — and  in  his 
explanation  of  that  portion  of  his  article,  he  said 
it  would  be,  or  might  be  necessary  to  increase 
the  half- in  ill  tax  to  a  mill  tax,  to  support  govern 
merit.  •  Next,  his  proposition  was  to  apply  the 
residue  of  the  surplus  tolls,  for  ten  years  to  the 
improvement  or  enlargement  of  the  Erie  canal 
and  the  completion  of  the  unfinished  canals. 

.Mr.  PATTERSON  sustained  the  proposition  of 

Mr.  BOUCK,  as  offering  a  ground  for  a  compromise. 

Mr.  MARVIN   moved  that  the  committee  rise. 

•d  to. 
And  the  committee  took  a  recess. 

AFTERNOON,  SESSION. 
THK  CANALS,  KINANCES.&c. 
The  Convention  again  took  up  the   subject  o 
the  report  of  the  finances. 

Mr. 'MARX-' IN  continued  the  debate.  He  had 
charged  that  this  attempt  to  get  up  a  large  debl 
i  fund  dm.-  the  general  fund,  was, 
a  trumped  up  account.  There  were  first  ilie  salt 
duties.  What  was  the  history  of  this  matter  ?— 
When  the  construction  of  the  Erie  canal  was  ii 
contemplation,  there  existed  great  fears  in  cer- 


ain  quarters  of  the  state  that  they  would  be  tax- 
ed for  its  construction.  The  friends  of  the  canal, 
vent  to  work  to  provide  a  fund  which  would  ob- 
iate  such  a  necessity.  Up  to  1817,  the  total  salt 
•evenue  received  by  the  state  from  the  salt  springs 
was  but  $40,000.  The  tax  was  then  three  cents 
a  bushel.  For  the  purpose  of  providing  funds 
'or  the  canal,  the  tax  was  raised  to  twelve  cents 
i  bushel.  This  was  paid  willingly,  although  it 
,vas  considered  by  everybody  as  a  local  tax.  The 
canals  were  built,  and  in  consequence  of  that, 
and  the  increased  tax,  the  salt  duties  increased  to 
as  large  an  amount  as  $250,000  in  a  single  year. 
All  this  was  pledged  by  the  Constitution  of  1821, 
o  the  payment  of  the  canal  debt.  So,  too,  with 
he  auction  duties,  which  were  pledged  by  the 
same  Constitution,  and  he  never  had  heard  a 
word  about  the  canal  fund  paying  this  back  until 
within  a  few  years. 

Mr.  M.  next  examined  the  charge  on  account 
of  land  sales,  referring  to  the  fact  that  large  por- 
tions of  the  land  thus  sold,  consisted  of  that  de- 
voted to  the  state.  He  went  into  a  statement 
showing  what  the  canals  had  paid  to  the  general 
iund,  showing  that  on  a  fair  computation  they 
were  entitled  to  a  credit  of  $9,951,453.  Was  he 
not  right  then  in  saying  that  this  was  a  trumped 
up  account  ?  It  was  an  imposition  to  which  the 
people  would  never  submit.  Mr.  M.  further  ex- 
amined the  proposition  of  the  standing  committee 
showing  its  injustice. 

Mr.  HOFFMAN  said  that  if  this  was  a  trump- 
ed up  account,  it  was  trumped  up  by  some  of  the 
most  honorable  men  in  the  State ;  and  if  the  gen- 
tleman from  Chautauque  ^Mr.  MARVIN)  chose  to 
calumniate  them,  he  left  that  gentleman  to  settle 
that  matter  with  the  gentleman  from  Schoharie 
(Mr.  BOUCK)  who  had  himself  not  only  endorsed 
all  these  charges,  but  the  mode  of  computing  the 
interest.  Now,  if  what  the  gentlemen  had  said 
was  true,  that  the  west  had  paid  this  tax,  so  had 
the  people  of  other  counties,  (Otsego  for  instance) 
and  when  gentlemen  sought  to  get  rid  of  restor- 
ing this  tax  to  the  treasury  to  keep  down  taxa- 
tion, it  was  they  who  trumped  up  an  excuse,  and 
not  others  who  trumped  up  an  account. 

Mr.  RHOADES  enquired  how  much  they  paid 
for  salt  in  Herkimer  before  the  canal  was  built  ? 

Mr.  HOFFMAN  said  that  he  could  not  recol- 
lect just  at  this  moment,  but  he  was  glad  that  the 
gentleman  had  asked  the  question,  because  it  re- 
minded him  of  a  matter  he  intended  to  have  pre- 
sented. He  still  insisted  that  the  consumer  of 
this  produce  paid  the  tax  in  all  these  cases.  And 
nothing  could  be  fairer  than  that  the  state  should 
have  the  salt  tax,  whilst  the  canals  had  the  tolls 
on  it.  As  to  the  proposition  of  •  the  gentleman 
Irom  Schoharie,  what  was  it  ?  Why  nothing  but 
the  skeleton  and  shadow  of  his  own"  It  was  true 
that  up  to  1865,  both  proposed  to  pay  $172,500 
annually  into  the  state  treasury.  But  after  J-<!i5 
the  committee  proposed  that  $072,100  should  be 
paid  yearly.  The  amendment  only  continues  the 
payment  of  $17:2,500  after  1MJ5  as  well  as  before. 
If  he  makes  his  amendment  to  appropriate  $672,- 
500  after  1M)5  then  il  will  be  equivalent  to  the 
proposition  ot 'the  committee. 

Mr.  VVORUEN:  Very  well,  then;  but  will  the 
gentleman  Irom  Herkimer  accept  of  this  plan 
with  that  amendment .' 


912 


Mr.  HOFFMAN:     I   have  no  right  to  accept 

Mr.  WORDEN  :     Will   you   agree  to  it,  then 

with  such  an  amendment? 

Mr.  HOFFMAN:  I  cannot  tell.  I  want  to  wai 
and  see  the  whole  proposition  first.  I  do  not  wan 
to  take  prussic  acid,  because  there,happenslo  be  ; 
little  wine  mixed  up  with  it.  (Laughter.)  HI 
insisted  on  it  that  in  a  very  short  time  the  expen 
ses  of  the  government  would  swell  up  to  a  rrril 
lion  of  dollars  a  year ;  in  about  ten  years.  Mean 
time  they  would  not  be  less  than  six  or  seven 
hundred  thousand  dollars  a  year;  and  he  wantec 
to  get  that  sum  to  meet  that  expense  without  any 
further  taxation. 

Mr.  BOUCK   said  that   in  order  to   please  Mr 
HOFFMAN,  if  it  would  be  more  satisfactory  to  th 
Convention,  he  would  now  amend  his  proposition 
so  as  to    provide  that    after  the  public   debt  shal 
have  been  paid,  the  sum  of  $672,500  shall  be  se 
apart  annually  for  the  suppoit  of  government. 
Mr.  WORDEN  :     Make  it  $800,000. 
Mr.  BOUCK:      Well,  I   will  say  $-800,000,  i 
gentlemen  please,  (laughter)  or  I  will  provide  for 
paying  the  expenses  of  the   government  from  the 
canal  revenues,  without  specifying  the  amount. 

Mr.  CAMBRELENG:  But  1  wish  to  ask  and 
to  know  what  we  are  to  do  rn  the  meantime? — 
Are  we  to  have  direct  taxation  until  the  debt  is 
paid  ?  That  is  the  point  ! 

Mr.  BOUCK  said  that  it  was  true  that  such  was 
a  feature  of  the  original  article ;  but  if  the  mem 
bers  had  looked  through  his  proposition,  they 
would  have  seen  that  after  the  completion  of  the 
unfinished  works,  (that  is  in  eight  or  ten  years,) 
the  entire  surplus  of  the  revenue  would  be  at  the 
disposal  of  the  legislature.  The  time,  therefore, 
would  depend  on  the  amount  of  the  surplus.  He 
was  willing  to  limit  the  expenditures  to  the  Black 
River  and  Genesee  Valley  canals,  and  the  present 
enlargement  of  the  Erie  canal. 

Mr.  CAMBRELENG  :  And  meanwhile  the 
tax  must  continue.  So  I  thought.  Now  when  are 
these  canals  to  be  finished  ?  It  was  now  1846, 
and  we  were  a  little  further  off  from  it  than  we 
were  in  1825.  We  at  first  began  to  enlarge  the 
old  canal ;  and  then  to  double  the  locks ;  and  then 
to  make  new  canals  ;  and  he  supposed  that  the 
next  thing  would  be  to  widen  every  lateral  canal 
in  the  state.  If  gentlemen  would  only  tell  him 
when  the  canals  would  be  finished,  and  when  we 
should  be  relieved  from  taxation,  he  would  go 
with  them,  and  not  without. 

Mr.  WARD :  Nor  can  I  in  justice  to  my  con- 
stituents. 

Mr.  BOUCK  said  that  he  was  quite  willing  to 
meet  the  gentleman,  and  to  say  that  the  appropri- 
ations should  be  applied  to  the  completion  of  the 
unfinished  works  on  the  present  plan  of  construc- 
tion. 

Mr.  CAMBRELENG:  Yes;  but  when  will 
they  be  finished  ? 

Mr.  BOUCK  :  If  the  surpluses  are  large,  they 
may  be  completed  in  about  eight  years. 
Mr.  CAMBRELENG :  Not  before? 
Mr.  BOUCK  y  No,  sir. 

Mr.  CAMBRELENG:  Then  at  all  events  we 
are  to  have  this  direct  tax  for  that  time. 

Mr.  WORDEN  said  the  gentleman  would  be 
in  the  same  position  in  that  respect,  under  the 
proposition  of  Mr.  BOUCK,  as  under  that  of  Mr. 


HOFFMAN.  The  latter  gentleman  had  admitted 
over  and  over  again  in  debate,  that  under  his  plan 
the  present  tax  was  to  continue.  Mr.  BOTJCK'S 
proposition  relieved  the  state  from  the  tax,  just  as 
soon  as  that  of  Mr.  HOFFMAN,  if  not  a  little  soon- 
er. As  to  the  proposition  of  Mr.  LOOMIS,  it  was 
not  as  favorable  for  the  canal  interest  as  that  of 
Mr.  HOFFMAN.  It  was  not  intended  to  be  so. — 
Instead  of  securing  the  surplusses  for  the  com- 
pletion of  the  unfinished  works,  it  left  the  door 
open  to  seize  on  them  for  general  purposes.  That 
of  Mr.  HOFFMAN  was  far  more  liberal  than  that 
of  Mr.  LOOMIS,  for  it  did  make  substantial  pro- 
vision for  the  completion  of  these  works.  And 
he  understood  the  gentleman  from  Clinton  to  say 
the  other  day,  that  Mr.  HOFFMAN'S  was  the  only 
democratic  proposition. 

Mr.  STETSON  :  i  did  not  say  that,  sir.  That 
remark  applied  to  that  portion  of  the  plan  of  the 
gentleman' from  Herkimer  (Mr.  HOFFMAN)  which 
contemplated  the  payment  of  the  canal  debt  with- 
in the  period  contemplated  by  the  acts  of  1842 
and  1844. 

Mr,  WORDEN  said  then  the  gentleman  used 
language  that  did  not  express  his  ideas.  B?  that 
as  it  might,  that  proposition  contemplated  a  direct 
tax  for  the  support  of  government.  But  he  would 
not  occupy  lime.  The  proposition  of  the  gentle- 
man Irom  Schoharie  covered  the  whole  ground; 
and  he  hoped  it  would  be  offered  and  accepted  in 
the  spirit  of  compromise  that  had  been  so  often 
invoked. 

Mr.  BOUCK  said  that  he  would  now  send  up 
he  following  amendment  to  be  added  to  his  former 
amendment: 

After  the  payment  of  the  public  debt,  $672,000  shall 
)e  annually  appropriated  from  the  canal  revenues  to  the 
jeneral  fund,  to  meet  the  expenses  of  the  Government." 

Mr.  TILDEN  followed  in  a  very  able  review 
of  the  debate  of  the  whole  week. 

Mr.  W.  TAYLOR  followed,  say  ing  that  he  stood 
lere  pledged  to  the  principles  of  the  policy  of 
1842,  and  he  could  vote  for  no  proposition  that 
lid  not  embody  the  principle  of  that  act.  Our 
first  duty  was  to  pay  the  debt — and  then  prose- 
cute your  public  works  to  any  extent.  He  was  a 
riend  of  internal  improvement,  and  was  proud  of 
,vhat  had  been  done — but  il  there  was  a  period  in 
ur  history  to  which  he  could  point  with  greater 
n-ide  than  another,  it  was  to  1838,  when  the  State 
A-as  comparatively  free  from  debt.  He  alluded  to 
he  change  wrought  in  our  financial  condition  in 
he  five  years  succeeding,  and  to  the  strong  repug- 
lance  throughout  the  state  to  the  revival  of  a  po- 
icy  which  had  led  to  such  results.  While  he 
.ccorded  with  the  original  report  ot  the  commit- 
ee,  he  should  give  his  support  to  the  substitute 
flfered  by  Mr.  LOOMIS.  He  desired  to  see  the 
Irie  enlargement,  the  Genesee  Valley  and  Black 
liver  canals  completed,  and  this  would  leave  sur- 
>lus  enough  to  meet  all  this  expenditure,  and  give 
;eneral  satisfaction  to  the  people  of  the  state. 

Mr.   BOUCK  said  if  gentlemen  would  look  to 

he  propositions  he  had  the  honor  to  submit,  they 

would  find  that  they  were  more  stringent  than  any 

ther  that  had  been  offered.     He  felt  as  deep  an  in  - 

erest  in  dispensing  with  taxation  as  any  other 

member.     His  own  constituents  were  as  remote- 

Y  interested  as  those  in   any  other  part  of  the 

tate.    Mr.   B.  read  from  the  Comptroller's  re- 


913 


port  to  show  that  his  estimate  of  the  annual  ordi- 
nary expenses  of  the  government  were  only  $380,- 
000.  Under  his  plan,  reserving  only  half  the  pre- 
sent tax,  there  would  be  an  annual  income  of 
nearly  $500,000,  leaving  over  $  100,000  to  meet 
the  extraordinary  appropriations  by  the  legisla- 
ture. He  could  not  see  how  more  than  one-half 
of  the  existing  tax  could  be  dispensed  with,  until 
the  debt  should  be  paid. 

Mr.  B.  said  this  whole  matter  lay  in  a  nutsnell. 
And  he  was  happy  that  the  Convention  had  at  last 
arrived  at  a  point  when  a  Harmonious  result  might 
be  attained.  The  friends  of  the  canals — those  re- 
siding in  the  western  counties,  and  deeply  inter- 
ested in  the  speedy  completion  of  the  unfinished 
canals — came  here  with  a  proposition  to  secure 
the  payment  of  the  entire  canal  and  general  fund 
debts,  out  of  the  revenues  of  the  canals.  They 
offered  farther  to  assent  to  the  annual  appropria- 
tion of  $172,500,  annually,  to  the  ordinary  expen- 
ses of  government,  and  after  the  debt  shall  be 
paid,  the  sum  of  $672,000  per  annum  forever  to 
the  support  of  government.  They  submitted  to 
all  this,  and  only  asked  in  return,  that  the  poor 
surplus  over  these  amounts  should  be  applied  to 
the  completion  of  the  public  works.  Was  this 
too  much  to  be  acceded  to  ?  He  trusted  not,  but 
that  we  should  in  our  action  set  an  example  to 
the  whole  Union,  worthy  of  all  commendation. 
Adopt  the  plan  suggested  by  him,  and  he  was  sat- 
isfied it  would  be  entirely  satisfactory  to  the  cre- 
ditors of  the  state.  He  had  not  a  doubt  but  what 
it  would  advance  our  stock,  at  least  one  percent, 
forthwith. 

Mr.  MURPHY  had  an  amendment  to  propose 
in  the  spirk  of  compromise.  He  wanted  to  save 
his  constituents  from  the  burden  of  taxation. — 
Then  he  had  no  objection  that  the  surpluses 
should  be  applied  to  the  canals.  He  concluded 
by  offering  the  following  : 

But  no  appropriation  shall  be  made  of  any  surplus  to 
wards  th«  said  improvements  until  the  tax  authorized  by 
the  act  entitled  lk  An  a^t  to  provi  le  for  paying  the  debt  and 
preserving  the  credit  of  the  state,"  passed  March  -.29,  1842 
shall  cease. 

Mr.  CHATFIELD  said  if  gentlemen  were  sin. 
cere  in  believing  the  annual  expenses  of  govern- 
ment would  be  only  $380,000,  they  would  con- 
sent to  the  appropriation  of  a  sufficient  sum  t 
meet  these  expenses  out  of  the  canal  tolls.  He 
believed  for  the  next  ten  years  these  annual  ex- 
penses would  be  over  $700,000. 

The  debate  was  continued  by  Messrs.  PAT 
TERSON,  CHATFIELD,  PERKINS  and  LOO- 
MIS. 

Mr.  BRUCE  said  this  question  had  been  discus- 
sed at  great  length.  Very  little  time  was  left  to 
the  consideration  of  the  other  important  matters 
before  the  Convention,  if  the  present  debate 
should  be  much  prolonged.  He  therefore  askec 
unanimous  consent  to  offer  a  resolution  termina- 
ting debate  on  this  report  with  all  the  pending 
amendments  on  Monday  at  12  o'clock. 

No  objection  being  made,  Mr.  B.  offered  such 
resolution. 

Mr.  CHAMBERBAIN  moved  to  adjourn.  A 
greed  to,  51  to  3y. 

MONDAY.  (94th  day}  Sept.  21. 
No  clergyman  present. 
Mr.  HUNT  presented  the  petition   of  severa 


ersons  it)  New  York  praying  that  clergymen  may 
je  made  eligible  to  office,  and  that  females  may 
e  allowed  to  go  the  polls  and  deposits  their  bal- 
ot.  Referred  to  the  committee  on  human  rights, 
rivileges  and  arrange  men  ts. 

Mr.  "TOWNSEND  nreserited  a  remonstrance 
rom  Prime,  Ward  &  King,  Saul  Alley,  and  oth- 
ers, against  making  members  of  corporal  ions  lia- 
>le  individually  and  personally  for  the  debts  of 
hose  corporations  Mr.  T.  moved  that  it  be  laid 
in  the  table.  Agreed  lo. 

Mr.  SWACKHAJVIER  offered  this: 

Resolved,  That  every  profession,  trade,  occupation  or 
msiness  not  hurtful  to  the  community,  should  be  open  and 
ree  to  all  the  citizens  of  the  state,  without  license  or  any 
mpediment  whatever. 

It  was  referred  to  that  committee  of  the  whole 
laving  charge  the  report  on  human  rights. 

Mr.  BRUCE  offered  the  following  in  place  of 
hat  presented  on  Saturday: 

Resolved.  That  the  Convention  will  proceed  to  a  final 
rote  on  all  the  amendments  proposed  or  to  be  proposed  on 
:he  first  article  of  the  report  of  the  committee  on  Finance 
at  4  o'clock  this  day. 

Mr.  LOOM  IS  said  that  he  desired  and  trusted 
hey  would  get  a  vote  on  this  matter  before  that 
ime.  He  wished  Mr.  BRUCE  to  change  the 
ihraseology,  or  the  resolution  would  prevent  their 
voting  at  an  earlier  hour. 

Mr.  MARVIN  suggested  a  verbal  amendment 
to  meet  this  ;  the  words  "  at  or  before  four." 

Mr.  BRUCE  accepted  this  ;  and  the  resolution 
was  passed. 

The  Convention  then  took  up  the  cons'deration 
of  the  report  of  commiltee  No.  3  on 

THE  CANALS,   FINANCES,  &c. 

The  question  was  on  the  amendment  of  Mr, 
BOUCK. 

Mr.  ANGEL  said  he  desired  to  address  the 
house  once  more  on  this  occasion.  Much  had  been 
said  by  the  gentlemen  of  the  Convention  about  the 
good  faith  of  the  state;  it  had  been  called  a  jewel. 
Sir,  (said  Mr.  A.)  I  admit  it  is  a  jewel  and  that 
we  should  regard  it  as  the  apple  of  the  eye.  To 
whom  is  the  faith  of  the  state  pledged?  It  is 
pledged  to  the  holders  of  the  state  stock  for  its  re- 
demption. Is  the  state  pledged  to  nothing  else  ? 
Is  she  not  pledged  to  the  completion  of  the  pub- 
lic works  she  has  avowed  she  would  make  ?  Sir, 
is  there  no  faith  in  your  statute  books  ?  Is  the 
state  at  liberty  to  repudiate  the  faith  she  pledged 
for  the  completion  of  the  unfinished  works? — 
What  will  be  the  effect  of  such  repudiation? — 
Have  not  the  laws  for  the  construction  of  those 
works  and  the  appropriations  made  for  their  con- 
struction, virtually  bound  the  state  to  complete 
them  ?  They  have  invited  hundreds,  nay  thou- 
sands, to  sell  out  their  property  in  other  places, 
and  vest  it  in  the  purchase  of  lands  and  in  mak- 
ing improvements  along  the  line  of  these  works. 
Hundreds,  nay  thousands,  encouraged  by  the 
plighted  faith  of  the  state,  have  disposed  of  their 
property  and  located  themsYlves  along  the  lines 
of.these"  unfinished  works,  nothing  doubting  that 
the  state  would  inviolably  observe  its  faith — com- 
plete what  she  had  undertaken,  and  carry  into 
fulfilment  the  assurances  she  had  given  in  that 
respect.  Encouraged,  I  say  sir,  by  such  assu- 
rances, hundreds  and  thousands  of  good  and 
worthy  citizens,  mechanics,  farmers,  trades, 
men,  laborers,  &c.,  sold  out  their  homes  and 

89 


914 


their  all,  and   located   themselves   on  the  line 
of   the  unfinished  canals.     They  entered  with 
alacrity  into  the  preparations  necessary  to  es- 
tablish   them    in   a   good    and    lucrative    busi- 
ness ;  they  purchased  farms,  lots  and  locations 
built  houses,  barns,  shops,  stores,  &c.,  thousands 
and  tens  of  thousands  were  expended  under  the 
flattering  hope  that  the  time  was  at  hand  when 
the  works  would  be  finished  and  their  sacrifices 
and  labors  would  be  rewarded.     Many  had  com- 
pleted  their  arrangements,  and  many  others  had 
partially  done  so      When  the  suspension  of  1842 
came,  it  came  with  a  crash  that  sunk  the  proper 
ty  and  desolated  the  homes  of  those  poor  people. 
To  refuse  to  complete  those  works  would  be  the 
worst  kind  of  repudiation,  it  would  be  as  criminal 
and  unworthy  as  to  procure  property  under  false 
pretences.    Shall  we  confine  our  entire  sympathy 
to  the  rich  stock  and  fund  holders,  and  abandon 
poor  men  in   the  miserable  and  cruel  condition 
into  which  your  policy  and  plighted  faith  had 
plunged  them  ?    I  cannot  perceive  the  difference 
between  repudiating  the  debts  of  the  state  and  its 
plighted  faith  to  this  injured  people.    They  have 
lost  and  suffered  much  already,  and  will  be  nearly 
all  ruined,  should  the  state  persevere  in  its  refu 
sal  to  complete  the  canals.     Is  it  not  as  wicked 
to  refuse  to  relieve  those  people,  as  it  is  to  refuse 
to  pay  the  stockholders  ?     The  one  is  a  debt  pay- 
able  in  money,  and   the   other  in  kind.     What 
earthly  difference  can  there  be  between  repudia- 
ting a  note  payable  in  money  and  a  note  payable 
in  cattle   and   horses?     Will  my   conscientious 
friends  who  quake  and  tremble  at  the  idea  of  re- 
pudiation, inform  me  of  the  moral  difference  be- 
tween the  two  cases  ?    Gentlemen  hav*e  earnestly 
insisted  that  they  were  willing  to  continue  the 
half  mill  tax  to  pay  the  debt,  but  would  not  con- 
tinue  it  for   the   purpose  of  completing  the  ca- 
nals.    This  kind  of  logic  I  cannot  understand. — 
This  kind  of  morality  has  no  place   in   my  affec- 
tions  or   esteem.     They  may  be   sincere ;  if  so, 
they  must  be  blinded   by  a  sordid,   selfish,  avari- 
cious feeling.     Our  canal,  our  section  of  country 
and  our  people  have  been  grossly  misrepresented 
in  the  legislature.     Why  is  the  country  so  tradu- 
ced ?     In  1807,  when   Allegany  and  Cattaraugus 
were  detached  from  Genesee,  the  whole  territory 
was  a  wilderness ;  it  did  not  contain   much  over 
three  thousand  inhabitants  in    1810.     In  1820,  it 
had  increased  to  some   ten  or  twelve  thousand ; 
and  in  1845,  it  had  increased  to  between  seventy 
and  eighty  thousand  ;  and  who  are  these  seventy 
and  eighty  thousand  people  in  Allegany  and  Cat- 
taraugus ?     But  few  of  them  who  are  adults  were 
born  on  that  territory.     Sir,  whence  did  they  mi- 
grate ?     Not  from  New  England  or  other  states  ; 
no  sir,  but  few  of  them  were  born   out  of  this 
state.     They  went  there  from  the  Eastern  coun- 
ties of  this  state.     I  believe  there  is  not  a  gentle- 
man in  this  convention  representing  a  county  east 
of  the   centre   of  the   state,  whose  constituents 
have    not  either  sons  or  daughters,  brothers   or 
sisters,  or  other  relatives  in  that  region.     Sir,  I 
know  people  there  from   Long  Island,  the  city  of 
New-York,  the  counties  of  Westchester,  Dutch- 
ess,  Columbia,  Rensselaer,  Washington,  Saratoga, 
Albany,  Greene,  Ulster,  Orange,  Rockland,  Scho- 
harie,  Delaware,  Otsego,  Oneida,  Madison,  Che- 
nango,  Broome,  &c.     These  are  the  persons  who 


have  been  treated  and  seem  to  be  regarded  as 
aliens.  Yes,  sir,  as  alien  enemies.  These  are 
the  people  who  are  to  be  enslaved  and  turned  into 
hewers  of  wood  and  drawers  of  water  for  the 
people  of  the  eastern  cities  and  countries.  Did 
they  think  when  they  left  their  eastern  friends 
and  homes,  that  they  were  to  expatriate  them- 
selves, and  forfeit  all  benefits  and  privileges  by 
settling  in  Allegany  or  Cattaraugus  ?  Think  you, 
sir,  when  they  come  here  and  ask  the  representa- 
tives of  their  fathers  and  friends  in  the  old  coun- 
ties, for  what  is  fairly  and  legitimately  due  to 
them,  they  will  be  satisfied  with  rude  rebuffs  ? — 
Sir,  when  they  have  asked  for  bread  they  have 
earned,  you  have  given  them  a  stone.  When 
they  have  asked  for  fish,  you  have  given  them  a 
scorpion. 

The  gentleman  from  Herkimer  (Mr.  LOOMIS) 
sent  up  his  amendment  the  other  day  as  an  olive 
branch.  He  told  us  it  was  offered  as  a  compro- 
mise, and  he  doubted  not  it  would  be  acceded  to. 
The  thing  appeared  plausible  on  its  face,  and  on 
the  start  I  thought  favorably  of  it.  I  told  the 
gentleman  I  thought  I  would  support  it,  but  I 
wanted  time  to  consider  and  reflect  upon  it  — 
Having  taken  such  time,  I  am  satisfied  it  would 
be  more  injurious  to  the  canals  than  the  proposi- 
tion from  the  standing  committee,  were  we  to 
adopt  it.  It  has  too  many  and  too  sharp  thorns 
for  an  olive  branch.  It  proposes  to  place  the 
whole  surplus  revenues  of  the  canal  at  the  dispo- 
sition of  the  legislature.  The  accumulating  mil- 
Lions  of  this  surplus  are,  by  the  proposition,  to  be 
placed  under  the  discretion  of  a  body  of  men  that 
gentlemen  have  told  us  over  and  over  again,  ought 
not  to  be  trusted  with  more  money  than  will  eco- 
nomically support  government.  I  have  never  had 
the  honor  of  a  seat  in  the  legislature,  and  know 
nothing  of  the  manner  of  doing  business  there. 
[  take  upon  the  trust  what  gentlemen  have  in- 
formed me  about  it.  They  have  repeatedly  on 
this  floor  inveighed  against  entrusting  large  sums 
of  money  to  the  disposition  of  the  legislature. — 
They  say  it  has  a  most  corrupting  influence  ;  that 
the  legislature  will  be  besieged  by  lobbies,  that 
members  will  log-roll,  bargain  and  squander  the 
money  upon  worthless  objects.  Has  not  that  gen- 
'leman  (Mr.  LOOMIS)  and  others  on  his  side  of 
he  question,  kept  up  a  continual  cry  against  the 
corruptions  and  profligacy  of  the  legislature, 
and  did  not  the  gentlemen  from  Herkimer  origi- 
nate the  famous  resolutions  called  the  "  peo- 
ple's resolutions,"  and  is  he  not  now  striving  to 
jrocure  the  principles  embodied  in  those  resolu- 
ions  to  be  incorporated  into  the  constitution  ? 
And  now,  sir,  all  at  once,  the  gentleman's  tone  is 
changed.  Now,  ihe  honesty  and  discretion  of  the 
legislature  may  be  confided  in  to  any  extent.  Sir, 
his  blowing  hot  and  blowing  cold  in  the  same 
treath,  is  a  disease  I  have  understood  sometimes 
ifflicted  intriguers  in  politics,  but  that  never 
ittacked  a  plain,open-handed,  open-hearted  states 
man.  The  remedy  that  the  gentleman  has  offered 
us  is  worse  than  the  disease  whicn  the  report  of 
lis  colleague  has  brought  upon  us.  If  the  Legis- 
ature  is  as  corrupt  and  wicked- as  has  been  repre- 
ented  by  many  gentlemen  in  this  Convention 
who  have  occupied  seats  in  that  body,  I  feel  thank- 
ul  that  I  have  escaped  the  disgrace  ot  ever  hav- 
g  been  a  member  of  it.  I  will  allude  (continued 


915 


Mr.  A.)  once  more  to  the  unfair  manner  in  which 
the  accounts  have  been  kept  with  the  lateral  ca- 
nals.  They  have  not  been  credited  as  much  as 
they  ought  to  be.  1  fearlessly  assert  the  fact  that 
if  you  take  the  Erie  canal  and  divide  it  into  sec- 
tions of  equal  length  of  the  lateral  canals,  and  sub- 
ject such  sections  to  the  s.ime  rigid  rules  of  ac- 
countability that  you  do  the  lateral  canals,  only 
giving  them  credit  for  the  revenue  arising  from 
tonnage  contributed  by  their  own  territory  and 
floated  on  their  own  waters,  the  several  sections 
of  the  Erie  canal  would  not  pay  the  interest  upon 
the  cost  of  their  construction,  and  the  expense  of 
their  superintendence  and  repairs.  I  desire  to  say 
to  my  friends  in  the  Convention  who  are  opposed 
to  internal  improvements,  that  I  regard  this  ques- 
tion a*  one  of  expediency,  not  involving  political 
principle.  The  difference  between  them  and  my- 
self upon  the  question  does  not  affect  our  general 
political  feeling  and  sentiments.  I  am  cordially 
with  them  in  all  the  great  and  fundamental  princi- 
ples that  have  been  cherished  by  the  democracy  of 
the  country.  I  regret  that  many  of  our  newborn 
radicals  have  not  been  sooner  awakened  and  soon- 
<er  come  to  the  rescue  of  pure  and  genuine  democ- 
racy. I  desire  to  say  to  them  that  hostility  to  in- 
ternal improvements,  is  not  characteristic  of 
sound  and  elightened  democratic  principles. — 
Democracy  does  not  consist  of  selfishness,  and  a 
mere  computation  of  cent  for  cent.  It  despises 
the  miser's  calculations,  and  holds  no  fellowship 
with  the  pitiful  narrowness  of  two-penny  parsi- 
mony. It  has  for  its  end  a  higher  and  holier  ob- 
ject. It  conforms  itself  to  the  divine  injunction — 
*'  Do  ye  unto  others  as  ye  would  that  others 
should  do  unto  you."  Refuse  to  give  the  canals 
a  constitutional  recognition,  and  blot  out  the 
hopes  of  those  whose  dearest  interests  depend 
upon  their  completion,  and  you  disarm,  nay,  you 
annihilate,  all  your  friends  in  the  western  part  of 
the  state.  You  will  beget  heart-burnings,  and 
generate  an  undying  hatred.  You  will  inflict  a 
wound  that  can  never  be  healed,  and  when  you 
send  out  your  new  constitution  for  ratification,  it 
will  be  met  by  the  most  determined  resistance. — 
No  fallacious  arguments,  no  intriguing  tergiver- 
sation, and  no  political  legerdemain  can  smother 
the  truth  or  avert  the  attention  of  the  peoplet 
from  the  authors  of  thf  ir  calamity.  They  will 
not  be  deceived,  and  they  will  refuse  assent  to 
your  doings.  In  the  name  of  all  that  is  sacred 
— of  all  that  is  dear  to  the  security  of  equal  righs, 
1  implore  you  to  stay  the  desolating  hand  that 
seems  to  be  raised  to  crush  and  wither  the  hopes 
and  prosperity  of  an  interesting  and  valuable  por- 
tion of  your  state. 

[The  operation  of  the  fifteen  minute  rule,  here 
put  a  stop  to  further  remark  on  the  part  of  Mr. 
A.] 

Mr.  BRUCE  said  he  should  give  his  vote  for 
the  proposition  of  the  honorable  gentleman  from 
Schoharie,  (Mr.  BOUCK)  not  because  he  thought 
it  embraced  all  that  the  friends  of  internal  im- 
provement had  a  right  to  expect  or  demand  at  the 
hands  of  this,  Convention,  but  for  the  same  reason 
the  gentleman  had  offered  it ;  as  a  compromise, 
For  (said  Mr.  B.)  it  is  very  well  understood  that 
opposite  opinions  are  entertained  by  gentlemen  on 
this  subject,  and  those  opinions  are  so  diametri- 
cally opposed,  that  for  either  to  yield  and  em- 


brace the  opposite  is  more  than  can  reasonably 
be  expected.  This  proposition  takes  the  middle 
ground  and  has  strong  claims  to  the  support  of 
both  extremes.  It  makes  ample  provision  for  the 
payment  of  every  dollar  of  the  State  debt,  and 
then  provides  for  the  support  of  the  government, 
and  appropriates  a  considerable  sum  every  year 
for  the  completion  of  the  Erie  and  finishing  the 
lateral  canals  already  commenced.  The  internal 
improvements  in  this  great  and  growing  state, 
have  been  the  wonder  and  admiration  of  not  only 
our  own,  but  the  people  of  other  states  and  other 
counties,  and  from  the  very  moment  that  the  bil- 
lows of  the  Erie  dashed  over  the  waves  of  the 
Hudson  down  to  the  present,  we  have  one  con- 
tinued and  uninterrupted  tide  of  prosperity.  The 
revenues  of  the  canals  have  far  exceeded  the 
most  sanguine  expectations  of  the  whole  people, 
and  if  the  revenues  continue  to  increase  for  the 
next  ensuing  twenty  years  in  the  proportion  that 
they  have  augmented  for  the  past,  who  can 
estimate  the  value  of  the  great  enterprises?  At 
the  early  period  of  1835,  the  canal  commissioners 
foresaw  the  necessity  of  an  enlargement  of  the  Erie 
canal  in  order  to  meet  the  wants  of  this  and  other 
states,  the  business  of  which  was  so  rapidly  in- 
creasing. They  accordingly  made  a  report  to  the 
legislature  urging  the  necessity  of  the  enlarge* 
ment.  Gov.  Marcy  then  at  the  head  of  the  state 
Government,  concurred  in  opinion  with  the  com- 
missioners, and  recommended  the  enlargement 
to  the  Legislature,  who  made  large  appropri- 
ations for  that  purpose.  All  parties  were 
agreed  on  this  subject,  and  all  looked  forward 
with  pleasure  and  pride  to  the  period  when  their 
expectations  should  be  realised  in  seeing  the 
Erie  canal  enlarged  to  a  seventy  feet  surface,  and 
seven  feet  deep,  and  the  lateral  canals  completed. 
To  this  the  faith  of  the  state  was  most  solemnly 
promised  and  pledged.  And  sir,  we  find  among 
the  actors  in  this  great  canal  enterprise  one  who 
was  at  that  time  a  Canal  Commissioner,  and  assur- 
ed the  Legislature  and  the  people  that  a  "  neces- 
sity did  then  exist"  for  the  erilargementof  the  Erie 
canal  who  has  since  been  and  is  now,a  conspicuous 
manager  in  the  financial  affairs  of  the  state,  and 
that  gentleman  is  now  at  the  head  of  the  financial 
committee  of  this  Convention,  (Mr.  HOFFMAN.) 
But,  sir,  where  is  he  now  ?  Does  he  advocate  the 
same  policy  now  he  helped  to  originate  then  ? — 
No,  sir.  We  find  him  not  only  repudiating  the 
opinions  in  '40,  that  he  cherished  in  '35,  but  com- 
ing into  this  Convention  with  a  report  in  which 
provision  is  made  for  the  Legislature  to  sell  out 
the  lateral  canals.  Yes,  sir,  that  honorable  gen- 
tleman who  was  one  of  the  fathers  of  the  policy 
of  '35,  now  proposes  to  handover  to  the  cold 
charities  of  a  corporation,  a  child,  who  was  chris- 
tened at  his  own  baptismal  font,  and  forever 
withdraw  from  it  his  paternal  care  and  protection. 
But  this  is  not  all:  I  will  read  sir,  from  that  gen- 
tleman's speech,  which  he  delivered  in  this  hall 
a  few  days  since,  an  extract  which  (taken  in  con- 
nexion with  the  provision  in  his  report  to  which 
I  have  referred)  in  my  judgment  shadows  forth  a 
doctrine  which  is  a  dangerous  one,and  one  which 
I  trust  will  find  but  little  favor  here  or  among  the 
people.  In  his  printed  speech  he  says  "  He  is 
"  opposed  to  the  system  adopted  of  laying  taxes 
"  upon  the  Railroads  for  carrying  freight.  This 


916 


"  was  a  tax  on  trade  and  commerce.  If  we 
"  should  attempt  to  rivet  the  system  by  a  consti- 
*•  tutional  provision,  he  believed  we  should  utter - 
"  ly  fail,  owing  to  surrounding  circumstances, — 
"  There  were  too  many  rival  routes  for  trade. — 
"  He  could  never  consent  that  the  sovereign 
"  should  ever  tax  a  line  of  trade  and  travel  built 
•*  by  private  enterprise," 

Here,  sir,  we  have  the  honorable  gentleman 
"defining  his  own  position/'  Sell  out  the  canals, 
except  the  Erie,  construct  railroads  to  run  along 
its  banks,  as  is  already  done,  allow  those  railroads 
to  carry  what  freight  they  please,  and  {hat  with- 
out paying  one  cent  of  tax  or  tolls  to  the  treasury. 
Sir,  this  is  indeed  a  bold  proposition,  and  when  1 
came  to  this  convention  I  had  heard  of  radical 
Tvhisrs,  arid  conservative  whigs,  hunkers  and  barn- 
burners; but,  sir.  I  did  not  expect  to  see  or  hear 
of  such  kind  of  politicians  as  canal  burners.  Now 
I  ask  gentlemen  to  show  me  if  this  is  not  a  mo.st 
mischievous  proposition,  to  frame  a  provision  in 
the  Const itutjon  by  which  railroad  corporations 
shall  he  enabled  to  compete  with  the  c.mals,  and 
that  too  without  any  sort  of  restrictions.  Sir,  the 
canals  belong  to  the  people,  the  whole  people, 
and  nothing  but  the  people,  and  the  moneys  de- 
rived Irorn  the  canals  are  flowing  into  the  state 
treasury,  and  so  far  as  they  can  go  to  pay  your  tax, 
my  tax,  and  the  tax  of  every  citizen  in  just  pro- 
portions. But  it  you  turn  the  transportation  of 
the  produce  and  merchandize  of  the  country  from 
the  canal*  to  the  railroad,  you  only  enrich  the 
stockholders  of  the  railroads  by  robbing  the  trea. 
cury  of  the  state  and  the  pockets  of  the  people. — 
But,  sir,  I  must  pass  on,  and  cannot  follow  this 
subject  so  far  as  I  desire,  because,  under  the  rule 
of  the  house,  I  am  conscious  that  your  *'  ivory 
mallet"  will  soon  give  me  notice  that  my  timeha^ 
expired.  To  return,  then,  to  the  subject  under 
consideration.  If  a  necessity  existed  in  1835, 
(which  is  not  denied,)  it  does,  in  my  judgment, 
extst  in  a  sMIl  greater  degree  at  the  present  mo. 
merit.  By  reference  to  the  report  of  the  commis- 
sioners of  the  canal  fund,  made  to  the  legislature 
at  the  last  session,  we  find  (in  Senate  Doc.  No  59 
at  pasie  194)  that  the  amount  of  tolls  received 
from  the  canals  of  the  state,  in  1835  was  $1,548,- 
986'.  In  1845,  they  were  $2,646,181,  showing  an 
increase  in  the  last,  over  the  first  year  mentioned 
ol  $1,097,195.  The  whole  number  of  tons  trans- 
ported on  the  canals  in  1835  was  753,191.  In 
1845,  J, 204,943,  being  an  increase  of  451,752  tons. 

The  honorable  gentleman  from  Erie,  (Mr. 
STOW,)  in  the  course  of  his  very  able  and  elegant 
speech  the  other  day,  alluded  very  briefly,  to  the 
increase  of  business  on  the  Erie  canal  from  the 
city  of  Buffalo.  I  regret  that  he  did  not  speak 
more  in  detail  of  the  increase  at  that  port.  By 
reference  to  Convention  Doc.  No.  GO,  we  find  that 
the  increase  of  the  tonnage  of  merchandize  re- 
ceived in  that  city  through  the  Erie  canal,  during 
the  past  year,  is  12,138,071  pounds,  and  the  in- 
crease of  tolls  received  at  that  point  is  $116,050  22. 
Now,  sir,  with  these  facts,  and  a  great  multitude 
of  others  equally  important,  which  have  been 
presented  to  us  during  the  progress  of  this  tie- 
bate,  I  ask  if  the  necessity  for  the  enlargement 
of  this  great  canal  has  "ceased  to  exist  ?"  Since 
1835,  the  business  done  on  that  canal  has  in- 
creased more  than  six  hundred  per  cent,  and  yet 


we  are  told,  day  after  day,  on  this  floor,  that  the 
"  Erie  canal  is  abundantly  large  to  do  all  the 
business  required. "  I  ask  gentlemen  who  were 
in  favor  of  the  enlargement  in  1835,  because  a 
"  necessity  then  existed,"  to  reconcile  the  decla- 
rations then  made  with  the  opposition  now  to  this 
policy  of  enlargement.  Sir,  they  do  not  attempt 
to  do  so,  but  even  now,  claim  to  be  the  friends  of 
the  enlargement  and  the  completion,  and  yet  act 
in  every  way  and  support  propositions  calculated 
and  designed  to  defeat  such  an  enterprise.  I 
know  not  what  to  think  of  the  sincerity  of  those 
gentlemen  who  commence  their  speeches  with 
the  declaration  "I  am  as  anxious  as  any  one  to 
see  the  canals  of  this  state  carried  forward  to  com- 
pletion," and  before  they  sit  down  use  every  argu- 
ment their  ingenuity  can  devise  to  show  that  it  is 
all  entirely  unnecessary.  My  honorable  friend 
from  Onondaga,  (Mr.  TAYLOR,)  in  his  speech  a 
day  or  two  since,  avowed  his  attachment  to  the 
policy  of  enlargement  and  then  argued  against  it7 
and  came  to  the  same  conclusion  of  other  gentle- 
men who  had  preceded  him,  that  the  Erie  canal 
was  "  sufficient  to  do  all  the  business  required 
upon  it."  Sir,  if  this  position  be  true,  we  can 
with  safety  stop  now  and  forever  the  whole  canal 
system,  and  keep  it  where  it  is.  Indeed,  we  need 
never  to  have  done  what  we  have.  The  old  fa- 
shioned turnpike  roads,  with  the  six,  eight  and 
ten  horse  teams,  were  entirely  sufficient  to  do  all 
the  business.  At  all  events,  all  the  business  of 
transportation  was  done.  We  should  never  have 
constructed  our  railroads  to  carry  passengers. — 
The  post  coaches  upon  the  turnpike,  from  this  to 
Buffalo,  were  sufficient  to  afford  facilities  for  the 
travel.  At  all  events  they  did  do  all  that  kind  of 
business.  But,  sir,  there  is  one  position  that  has 
been  taken  as  a  ground  of  opposition  to  this  great 
enterprise.  I  allude  to  what  is  called  the  stop 
and  tax  policy  of  '42.  Gentlemen  here  seem  to 
talk  as  though  this  law  was  paramount  to  all 
other  obligations  Sir,  what  wa&  the  origin  of 
this  famous  **  stop  and  tax"  policy.  Did  the 
people  of  this  state  ever  petition  your  legislature 
for  the  passage  of  this  or  a  similar  law  ?  If  so, 
when  ?  From  what  county,  town  or  section  of 
the  state  ?  Not  a  single  petition  was  ever  pre- 
sented and  no  community  ever  asked  for  such  a 
iaw.  The  first,  last  and  only  petition  was  a  de- 
sire on  the  part  of  the  brokers  and  stock  job- 
bers from  Wall-street  in  the  city  of  New  York, 
They,  sir,  were  the  first  to  ask  and  first  to  re- 
ceive the  benefits  of  this  system  of  direct  taxa- 
tion upon  the  people.  This  abominable  system 
of  taxation  never  was  asked  for  by  the  people 
nor  demanded  by  the  condition  of  the  finances  of 
the  state,  and  yet  the  faith  ot  the  state  is  talked 
about  in  connexion  with  this  law,  as  it  it  had 
never  been  so  solemnly  plighted  to  any  other  mea- 
sure. I  contend  that  the  laith  of  the  state  was 
most  solemnly  plighted  in  '351,  and  it  nas' been 
most  clearly  shown  that  alter  the  passage  of  the 
canal  law  at  that  period,  cneulais  were  sent  to 
foreign  countries  and  the  poor  and  oppressed  yeo. 
manry  of  those  countries  were  induced  to  leave 
the  land  of  their  nativity  and  make  this  the  land 
of  their  adoption,  with  the  assurance  that  they 
should  have  constant  employment  with  adequate 
reward  for  a  term  of  years  in  constructing  canals. 
But  what  is-  their  condition  now  '  They  are  anx- 


917 


ious  tor  employment  but  cannot  obtain  H,  and  are 
compelled  to  go  to  and  fro  through  ihe  country-end 
gain  a  sca.ity  subsistence  as  best  they  can.  Again 
sir,  there  are  multitudes  of  our  own  citizens  who 
emigrated  to  remote  parts  of  the  state  which  had 
before  been  almost  a  wilderness,  and  there  com- 
menced clearing  vour  forests  and  cultivating  the 
soil  confidently  believing  that  the  state  of  New 
York  would  fulfil  her  engagements  and  construct 
the  lateral  canals  to  their  localities,  that  would 
enable  them  to  have  a  sate  and  sure  channel  of 
communication  on  which  to  transport  their  lum- 
ber and  their  produce  to  our  large  cities.  Sir, 
have  these  our  citizens  no  claims  on  the  state  for 
a  fulfilment  of  her  promises?  But  there  are  other 
and  if  possible  still  greater  reasons  why  the  st-itf 
should  redeem  her  pledges  on  this  great  question. 
The  people  of  the  western  states  have  relied  upon 
the  promised  action  of  this  stale  in  reference  to 
the  enlargement  of  the  Erie  canal,  as  was  most 
ably  and  conclusively  shown  by  the  honorable 
gentlemen  from  Allegany,  (Mr.  ANGEL  and  Mr 
CHAMBERLAIN)  and  I  will  not  enlarge  as  my  time 
has  nearly  expned.  Reference  has  been  rn  de  to 
this  as  a  party  question.  Sir,  does  the  great  ca- 
nal enterprise  of  this  the  Empire  state  belong  to 
a  political  party!  Has  it  come  to  this,  that  a 
party  is  to  have— [Here  the  PRESIDENT  informed 
iYli.  H.  'hat  his  time  under  the  rule  had  expired.] 

Mr.  BOUCK  said  that  upon  examining  the  act 
of  1842,  he  found  that  it  pledged  an  amount  equal 
to  one-third  of  the  annual  interest  on  the  canal 
debt,  as  a  sinking  fund  to  redeem  the  principal. 
But  he  begged  to  say  to  Mr.  BRUCE  and  to  others 
who  had  accused  him  of  an  endeavor  to  violate 
that  law,  that  he  had  no  such  desire.  He  would, 
however,  in  ord»:r  to  obviate  these  charges  here 
after,  so  modify  his  amendment  as  to  appropriate 
the  sum  of  $1^225,000;  which  was  precisely  the 
amount  that  the  legislature  pledged  by  the  act  of 
154-2. 

Mr.  AYRAULT  said— I  am  aware  of  the  im- 
patience of  the  Convention,  and  I  do  not  rise  to 
inflict  upon  the  members  a  speech.  I  have  no 
desire  nor  am  I  prepared  to  do  so.  Besides,  my 
occupation  and  pursuits  in  life  have  not  made  me 
familiar  with  public  speaking,  and  our  protracted 
sittings  have  admonished  me  to  refrain  from  pro- 
longing the  debate.  But,  sir,  I  owe  it  to  myself 
to  define  or  explain  the  reasons  that  will  govern 
me  in  the  vote  I  am  about  to  give  on  the  impor- 
tant subject  now  before  us ;  and  this  I  consider 
the  more  necessary  from  the  remarks  on  Saturday 
of  the  gentleman  from  New- York,  (Mr.  TILDEN) 
who  I  perceive  is  not  now  in  his  seat.  Now,  sir, 
the  subject  matter  before  us  is  one  of  finance, 
and  as  such  one  of  vital  importance  to  the  integ 
rity,  pledged  faith,  and  the  best  interests  of  the 
people  of  this  State.  The  State  of  New- York 
holds  in  common  an  interest  or  an  estate  in  her 
canals,  worth,  as  is  believed,  more  than  twice  the 
amount  of  all  her  debt  or  liabilities,  producing 
the  last  year  in  their  present  unfinished  state,  a 
net  revenue,  of  about  $2,200,000.  This,  Mr 
President,  will  pay  the  interest  at  5  per  cent  on 
44,000,000.  I  do  not  mention  this  as  an  induce- 
ment for  contracting  a  debt,  but  as  evidence  oi 
our  ability  and  means  to  meet  our  engagements. 
I  am  opposed,  in  private  or  in  public  capacity,  to 
contracting  debts  unless  urgent  interest  or  impe- 


rious necessity  require  it.  Our  state  debt  in  th,e 
aggregate -is  but  one  half  that  amount.  Still,  sir, 
our  debt  is  large,  too  large,  and  should  have  been 
avoided ;  and  we  all  look  upon  it  now  as  a  greater 
burthen,  from  the  fact  that  the  expenditure  of  the 
money  has  been  in  a  way  and  manner  requiring 
about  $10,000,000  to  complete  the  undertaking. 
And,  sir,  I  consider  it  out  of  place  here  to  inquire 
nto  the  origin  of  these  difficulties,  great  as  they 
are,  for  in  my  judgment  all  classes  participated  in 
their  inception  ;  or  in  other  words,  no  one  class 
of  men  are  exempt  from  their  due  share  of  the 
responsibility.  I  mean  by  this  the  people  as  well 
as  the  legislature. 

The  people  called  and  demanded,  and  the  leg- 
islature yielded  and  obeyed.  The  times  were 
marked  every  where  with  ruinous  extravagance 
and  folly — private  as  well  as-  public.  The  last 
ten  or  twelve  years  have  worked  out  great  results 
and  produced  wonderful  changes  in  the  views  of 
men  ;  and,  sir,  it  admits  of  a  question,  whether 
our  own  legislature,  extravagant  as  they  have 
been,  were  not  behind  the  spirit  of  the  times,  in- 
stead of  being  in  advance  of  their  constituency. 
Now,  sir,  this  being  so,  is  it  not  wise  to  look  at 
things  as  they  now  are — that  is,  our  debt  and  our 
engagements — and  apply  the  remedy,  instead  of 
criminating  one  set  of  men,  and  recriminating 
another  ?  We  have  quite  too  much  of  that  else- 
where. My  own  knowledge  of  these  canals  is  of 
a  general  character  only,  and  that  obtained  in  va- 
rious ways  ;  and  here  let  me  say  that  while  I  dis- 
approve of  much  of  the  undertaking,  as  being  at 
the  time  unwise,  still,  taking  the  circumstances 
as  they  now  exist,  I  have  an  ardent  desire,  and 
believe  it  lor  the  interest  of  the  state,  to  prose- 
cute them  to  their  completion.  Sir,  in  this  I 
have  no  personal  interest,  neither  have  the  con- 
stituencs'  which  I  in  part  represent,  other  than 
as  residents  of  the  state  at  large.  That  I  may 
not  be  misunderstood  in  regard  to  the  state  debt, 
permit  me  here  to  say,  that  I  am  as  rigid,  and 
hold  the  obligation  to  provide  payment,  and  to 
pay,  as  binding  and  as  sacred  as  any  other  man. 
Yes,  sir,  in  that  I  will  not  except  the  gentleman 
from  Herkimer  himself,  (Mr.  HOFFMAN.) 

To  accomplish  both  objects  from  the  revenues 
of  the  canals,  is  the  matter  under  consideration, 
and  to  this  is  our  attention  now  directed.  I  fully 
believe  a  large  majority  of  this  Convention  desire 
to  accomplish  both  objects  in  the  most  speedy, 
economical  way  possible.  And  to  effect  this  what 
have  we  ?  We  have  first  the  article  as  reported 
by  the  chairman  of  the  standing  committee,  and 
what  does  that  do  ?  It  appropriates  first  from 
the  revenues  $2,172,500  each  year,  for  about  18 
or  19  years,  oi  until  the  debt  is  paid  ;  after  which 
it  appropriates  $2,500,000  towards  improving  the 
Erie  canal  only,  and  to  accomplish  this  it  will 
require  10  years  from  the  most  favorable  estimates. 
I  am  able  to  make  prospectively,  and  fom*l  the 
estimate  upon  past  experience.  For  this  I  can- 
not vote.  It  is  taking  10  years  to  begin  to  accom- 
plish the  object.  Besides  the  delay  is  adding 
more  and  more  to  the  decay  and  damage  to  work 
partly  done  ;  and  perhaps  it  is  not  too  much  to 
say  that  the  decay  in  10  years  upon  the  millions 
of  work  now  half  finished  or  more,  would  more 
than  balance  the  advance  made  in  expending  the 
$2,500,000  appropriated  by  the  committee.  These 


918 


considerations  induced  me  to  mature  a  plan, 
which  seemed  to  meet  with  so  much  approval, 
that  in  the  exercise  of  my  privilege,  I  submitted 
it  to  the  Convention.  It  provides  a  sinking  fund 
of  $1,500,000,  for  10  years,  and  $2,000,000  there- 
after, which  pays  the  present  debt  ($22,300,000 
as  estimated,)  in  23  years,  or  a  debt  of  $25,000,000 
in  28  years.  Either  of  these  secure  the  payment 
of  the  debt  within  a  reasonable  time,  under  all 
the  circumstances;  and  after  applying  for  the  use 
of  the  government  about  $200,000  annually,  from 
the  remaining  revenues,  we  have  according  to 
estimates  from  6  to  $9,000,000  to  be  expended  in 
ten  years  in  completing  the  canals. 

I  should  not  have  mentioned  this  here  had  not 
the  gentleman  from  New  York  in  his  argument 
charged  inconsistency  in  refusing  to  sustain  the 
compromise  offered  by  the  gentleman  from  Her- 
kimer,  (Mr.  LOOMIS,)  alleging  that  the  proposi- 
tion of  the  gentleman  from  Herkimer  contained 
the  same  provision  as  the  one  offered  by  me. — 
Now,  sir,  the  two  propositions  are  entirely  differ- 
ent, agreeing  only  in  the  manner  of  applying  the 
sinking  fund.  The  proposition  of  the  gentleman 
from  Herkimer  makes  no  provision  whatever  for 
the  canals,  but  annexes  a  provision,  that  virtually 
prohibits  their  completion — for  works  of  this 
kind  and  of  this  magnitude  cannot  progress  by 
annual  appropriations,  or  annual  movements  only. 
The  second  proposition  of  the  gentleman  from 
Schoharie  (Mr.  BOUCK,)  is  now  before  us,  to 
which  I  give  my  support,  and  although  yielding 
more  than  the  friends  of  the  canal  intended,  I 
hope  the  Convention  will  sustain  it  by  their 
votes,  as  a  compromise.  It  provides  for  the  pay- 
ment of  the  State  debt  within  a  reasonable  time, 
and  secures  the  progress  of  the  unfinished  works, 
and,  as  I  trust,  their  completion  at  some  remote 
period;  thus  fulfilling  our  engagements,  and 
awarding  the  justice  long  delayed  to  portions  of 
the  State.  While  our  internal  improvements  are 
the  cause  of  our  debt,  and,  in  some  respects, 
their  prosecution  has  proved  a  fraud  upon  the 
public  treasury,  and  in  others  ill  advised,  still 
taken  as  a  whole  they  are  the  elements  of  our 
prosperity  and  the  source  of  our  revenue,  and  the 
Erie  canal  enlarged  is  a  monument  the  people  of 
any  State  may  justly  feel  a  laudable  pride  in  hand 
ing  down  to  posterity  as  a  legacy. 

Mr.  HAWLEY  said  that  the  hour  was  drawing 
near,  when  all  debate  on  the  important  question 
whether  our  public  works  should  be  arrested  or 
prosecuted  slowly  indeed,  but  with  certainty  to 
a  final  competition.  The  propositions  submitted 
by  the  gentleman  from  Schoharie  (Mr.  BOUCK) 
he  believed  would  barely  admit  of  construction 
under  which  these  canals  might  at  a  distant  day 
be  completed.  As  a  last  resort,  he  was  inclined 
to  vote  for  that  proposition,  because  from  the  dis- 
position manifested  by  a  majority  of  the  conven 
tion,  he^ould  hope  for  nothing  better.  It  was 
however  far  from  doing  justice  to  the  constituen 
cy  which  he  had  the  honor  in  part  to  represent.  I 
would  put  far  away  the  day  at  which  we  might  even 
hope  for  the  completion  of  the  Genesee  Valley 
canal.  The  proposition  of  the  gentleman  froir 
Herkimer,  did  not  contemplate  a  resumption  o 
that  work,  but  it  did  contemplate  an  abandonmen 
and  a  sale  of  the  unfinished  portion  of  it.  A 
gainst  a  proposition  so  vile— so  unjust  to  the  peo 


pie  along  the  line  of  that  canal,  he  was    in   duty 
bound  to  enter  his   protest.      He   held  that   the 
faith  of  the  State  was   solemnly   pledged   to  the 
construction  of  the  lateral  canals.     We  had  heard 
much  said  on  this  floor  on  the  subject  of  the  faith 
of  the  State.     Nothing  else  seemed  to  have  been 
forgotten  by  the  gentleman  from  Herkimer   (Mr. 
HOFFMAN)  as  within  the  scope   of  the  plighted 
faith — except  these  poor  lateral  canals.     He   ad- 
mits that  the  faith  of  the  State  may  be  pledged  to 
particular  localities,   and  to   individuals,  where 
the  construction  of  a  railroad  is  in  question.  That 
the  faith  of  the  State  may  be  pledged  to  pay  debts 
to  itself, — and  more  particularly  to   money   len- 
ders and  the  bankers  and  brokers  of  Wall  street. 
Was  it  the  less  pledged  to  the  construction  of  the 
Genesee   Valley    canal  ?      Certainly   not      The 
State  in  justice  to  that  secluded  section   passed 
the  law  of  1836,  authorizing  the   construction   of 
this  canal.     This  was  but  tardy  justice   to   that 
section  of  the  State,  which  had  borne  its  portion 
of  the  burdens  common  to  the  whole  State ;  which 
had  paid  its  proportion  of  the  direct  and  indirect 
taxation  necessary  to  meet  the  wants  of  the  gov- 
ernment ;  which  had  paid  its  salt  tax  and  its  auc- 
tion tax ;  and  donated  its  lands   in   consideration 
of  the  construction  of  the  Erie  canal ;  and  had  its 
trade  and  travel  as  a  great  natural  thoroughfare 
iverted  to  other  channels.     By  the  passage   of 
his  law,  the  faith  of  the  State  was  pledged  to  its 
ompletion.     Public  expectation  and  confidence 
ested  implicitly  in  the  guarantee  thus  given. — 
Capitalists  from  our  large  cities  were  induced   to 
nvest  their  money  in  the  purchase  of  lands   and 
yater  power  for  manufacturing  purposes,  and   to 
purchase  village  property,  in  the  just  expectation 
)f  reaping  rich  reward  from  the   development  of 
he  great  natural  resources  of  the   country.     But 
here  were  other  classes  of  men  who  were   more 
entitled  to  sympathy  than  those  he  had  just  nam- 
ed.    M en  of  moderate  means  had  paid  out  their 
ittle  all,  for  property  rendered  almost  worthless 
jy  this  abandonment — they  were  in   many   in- 
stances left  in  debt  and  their  means  buried  beyond 
.he  hope  of  recovery     Men  of  large  families  have 
been  influenced  by  the  inducement  here  held  out, 
;o  stop  short  of  the  fertile  garden   of  the   west — 
;o  purchase  wild  lands,  in  Cattaraugus  and  Allega- 
ny,  and  thereby  enjoying  the  institutions  and  edu- 
cational privileges  of  our   own   State,  to  which 
they  were  strongly  attached.  They  too  are  bound 
to  remain  poor  the  balance  of  their  lives.    There 
was  another  class  of  sufferers  by  the  adoption   of 
this  suicidal  policy.     Young  men  of  genius,  en- 
terprize  and  talent,  have  fastened  themselves  for 
life,    by    relations    here  formed,  who  otherwise 
would  have    sought   a    more    inviting    field    of 
operations.     Still  all  these  obligations  are  here 
to  be  repudiated.     And  for  what  ?    Why  sir,  not 
only  to  enable  us  to  pay  the  public  creditor,   but 
to  raise   the  price  of  public   securities  in  the 
hands  of  speculators   and  stockjobbers,  &c. — 
Mr.  H.  was  in  favor  of  redeeming  the  faith  of 
the  state  whenever  and  however  pledged.  Wheth- 
er to  the  rich  or  to   the  poor.     To  the    laboring 
citizen  or  to  the  wealthy  bond  holder.     He  held 
that  the  public   faith  had  been   kept  inviolate, 
with  the  public   creditors.     To  what,  he   asked, 
was  the  public  faith  pledged  with  these  creditors 
was  it  not  to  pay  the  interest  as  it  accrued,  and 


919 


th<>   principal   when  it  should  fall  due  ?     Was  it 
anything  beyond  that?  The  state  undertook  to 
do  nothing  more.     And  he  challenged  gentlemeii 
here,  or  elsewhere,   to  show  the  time,   or  the 
place,  where  these  obligations  had  not  been  fully 
and  literally  complied   with.     Where  had  inter- 
ests accrued,  and  not  been  discharged  on  demand? 
When  had  a  bond  when  due  been  presented  and 
not  been  promptly  paid  ?  No  such  case  has  ever 
occurred.     Still  the  state  had  been  declared  to  be 
on  the  very  verge  of  repudiation — bankruptcy 
and  ruin.      But  the  gentleman  from  Herkimer 
was  not  satisfied  with  this.     He  said   the  other 
day  in  debate,   these   public  acts  were  different 
from  obligations  resting  between   individuals. — 
That  capitalists  purchased  state  bonds,   as  trans- 
ferable property  for  the  purposes  of  trade,  and 
that  the  state  was  bound  to  see  to  it  that  they  did 
not  depreciate  in  the  market.    He  was  surprised 
to  hear  such  a  preposterous  doctrine  advocated, 
even  by  the  gentleman  from  Herkimer.     Again, 
the  faith  of  the  state  was   held  to  be  pledged  to 
the  general  fund,  to  pay  the  amount  alledged  to 
have  been  paid  by  that  fund  to  the  completion  of 
the  Erie  canal,  and   this  imaginary   and  fictitious 
pledge,  is  to  be  regarded  as  more  sacred  than  the 
claims  of  the  lateral  canals.     Again,  the  gentle- 
man from  Herkimer,  in   his  argument  upon  the 
fifth  section  of  this  article,  admitted  that  the  faith 
of  the  state  might  be  pledged   to  a  local  improve- 
ment, even  where  the  work  was  undertaken   by 
an  incorporated  company.     He  was  pleased  to 
say,  that  in  case  the  state  had  purchased  the  Ith- 
aca and  Owego  Railroad  at  the  Comptroller's  sale, 
it  would  have  been  bound  in  good  faith  to  that 
section  of  the  state,  to  put  the  road  in  repair  at  a 
cost  of  $300,000,  and  keep  it  in  repair,  and  in  op- 
eration through  till  coming  time.  How,  said  (Mr 
H.,)     does    this  pledge  compare  with    that    to 
the    Genesee  Valley    canal.     In  the  latter  case 
you    have   a  law  upon   the   statute    book   bind- 
ing   the    state  to    construct  the    canal,    upon 
which  the  people  rested  with  implicit  confidence. 
In  the  former,  the  state  loaned  the  means  in  aid  of 
a  company,  but  never  by  legislation  or  otherwise, 
became  pledged  to  the  completion  or  the  success 
of  the  enterprise.     The  State  never  undertook  to 
do  any  thing  more  than  to   protect  the   treasury 
against  loss  in  case  the   company  should  fail  to 
pay  the  interest  or  the  principal   of  the  loan. — 
This  was   the   nature   of  the   pledges   set   over 
against  the  claims   of  the  Genesee  Valley  canal 
The  seal  of  condemnation,  ought  to  be  placed  up 
on  the  proposition  ot  the  gentleman  from  Herki- 
mer. After  taking  from  the  people  along  the  line 
of  that  work,   all   that  could  be  gathered  in  the 
shape  of  direct  and  indirect  taxes — after   taking 
the  avails  of  over  one  hundred  thousand   acres  o: 
the  land  in  Cattaraugus  county,  and   which   was 
donated    for  canal   purposes — this  project  pro- 
poses to  allow  of  the  sale  of  the  canals,   to  those 
who  were  called  upon  to  submit  to  this  petit  lar- 
ceny, and  coolly  to  say  to  them — if  you  will  have 
your  canal  build  it  yourselves.     This    would  be 
magnanimous    indeed.     As   a  representative  in 
part  of  this  abused  constituency,  he  here  denoun- 
ced this  scheme  as   unworthy  of  the  support  o 
this  Convention. 

He  had  a  word  to  say  on  the  subject  of  the  loca! 
character  of  the   Erie  enlargement.     Gentlemen 


epresenting  the  portion  of  the  state  along  the 
nine  of  that  work,  between  Buffalo  and  the  Hud- 
ion  river,  had  been  charged  with  acting  from  lo- 
cal feeling  and  local  interest.  This  was  an  illib- 
eral view  of  this  question.  The  city  of  Buffalo, 
he  city  of  New- York,  and  some  intermediate 
joints  were  indeed  locally  interested.  The  city 
of  New-York  was  in  a  pre-eminent  degree  inter- 
ested in  the  completion  of  this  important  work. 
Who  did  not  know  that  the  Erie  canal  was  abun- 
dantly sufficient  for  all  the  local  purposes  of  this 
state.  It  was  entirely  sufficient  to  develop  all  its 
resources.  It  was  not  necessary  to  enlarge  the 
canal  for  any  such  purpose.  It  was  a  question  far 
above  these  local  considerations, — a  question 
whether  the  great  and  growing  trade  of  the  fertile 
west  should  continue  to  flow  into  the  lap  of  the 

Queen  of  Cities,"  or  be  diverted  by  other  chan- 
nels of  intercommunication  to  other  cities  of  the 
Atlantic  coast.  This  great  trade  is  now  ours, 
and  it  is  now  perfectly  in  our  power  to  take  such 
action  as  to  forever  secure  it  to  our  great  com- 
mercial emporium;  and  the  revenue  consequent 
upon  it  to  the  treasury  of  the  state.  It  was  purely 
a  question  of  revenue  and  trade,  in  which  the 
river,  the  central  and  western  counties  had  an 
identity  of  interest. 

He  believed  the  people  would  take  an  enlarged 
view  of  the  subject.  There  was  no  evidence  that 
they  would  sanction  the  stop  policy  of  1842  as  a 
permanent  measure.  They  had  been  found  un- 
willing to  sanction  it  in  their  legislative  capacity. 
The  people's  representatives  had  thrice  repudia- 
ted it  through  their  representatives  by  majority 
votes.  No  petitions  were  found  on  their  files  in 
favor  of  it.  The  gentleman  from  Herkimer  has 
himself  admitted,  yes,  endorsed  these  views  in  a 
public  speech  upon  this  subject.  He  has  said, 
"that  he  did  not  believe  that  the  legislature  could 
deal  with  this  subject.  Quashee  may  be- 
lieve in  his  Mumbo  Jumbo,  but  surely  no  man 
with  a  white  skin  who  has  any  brains,  can  look 
upon  the  legislatures  which  have  passed,  and  in 
the  presence  of  his  God,  with  his  hand  upon  his 
heart,  say  he  believes  the  legislature  will  ever 
do  what  is  here  required.  No,  it  is  impossible." 
With  what  evidence  of  truth  can  the  gentleman 
from  Herkimer  claim  that  the  people  demand  the 
adoption  of  this  provision  in  the  constitution.  Is 
he  unwilling  that  they  should  speak  their  senti- 
ments through  their  "representatives?  Does  he 
wish  to  save  them  from  themselves  ?  A  few  short 
years  ago,  he  was  in  favor  of  this  system  of  inter- 
nal improvement.  In  *his  official"  capacity  as  a 
canal  commissioner,  he  recommended  the  en- 
largement. He  then  looked  forward  to  large  rev- 
enues, extended  works,  and  permanent  advance- 
ment, in  this  system.  Strange  as  it  may  seem, 
the  very  works  which  he  then  endorsed  as  proper 
and  worthy  of  legislative  favor,  he  now  denounces 
as  the  offspring  of  vile,  wicked  and  corrupt  legis- 
lation. The  change  of  his  views  and  sentiments 
seems  to  have  been  radical  and  complete.  It  could 
not  have  escaped  public  notice  that  the  prevail- 
ing temper  and  spirit  of  the  gentleman,  is  that  of 
gloom — misanthropy  and  horrid  imaginings  The 
misery  of  debt — the  torture  of  taxation — the  abase- 
ment of  poverty — beastly  servitude — the  scourge 
— the  curse  and  all  the  kindred  horrors,  seem  to 
have  taken  possession  of  his  inmost  soul.  He 


920 


would  now  have  it  understood,  that  by  this  vile 
legislative  action,  the  cup  of  our  future  prosperi- 
ty had  been  drugged  with  poison.  That  the  can- 
ker-worm, internal  improvement,  was  reveling 
deep  in  the  body  politic,  and  must  corrode  and 
eat  out  its  very  vitals.  But  men  of  unbiassed 
minds  and  sound  judgment  thought  and  reasoned 
differently.  Notwithstanding  this  constant  sound- 
ing the  alarm,  by  the  gentleman  from  Herkimer, 
a  great  majority  of  the  enlightened  people  of  this 
state  sleep  as  soundly — breathe  as  freely— tread 
as  lightly — hope  as  strongly — yes,  and  boast  as 
proudly  of  this  great  system  of  internal  improve- 
ment, as  ever.  They  view  it  not  as  a  system  cal- 
culated to  wither  the  hopes— blight  the  prospects 
— and  destroy  the  prosperity  of  the  "  empire 
state,"  but  as  a  grand,  growing  source  of  revenue, 
which  is  to  increase  our  wealth — augment  our 
resources — and  raise  us  to  a  still  higher  niche,  in 
the  comparative  fame  and  glory  of  the  states. 

(His  remarks  were  arrested  by  the  fifteen  min- 
ute rule.) 

Mr.  BOUCK  said  that  there  was  no  doubt, 
whatever,  that  the  framers  of  the  act  of  1842  in- 
tended  that  one  third  of  the  interest  should  be 
pledged  for  the  reduction  of  the  debt.  For  his 
own  part,  he  did  not  wish,  even  in  appearance,  to 
violate  any  pledge  given  by  that  law  ;  and  he  was 
therefore,  willing,  as  he  said  before,  to  amend  his 
amendment,  by  inserting  $1,225,000,  which 
would  be  a  sum  equal  to  one-third  of  the  interest 
and  in  strict  compliance  with  the  letter  of  that 
law. 

Mr.  RUSSELL  would  not  sit  still  under  the  re- 
newed attempt  of  the  gentleman  from  Modison 
to  pour  obloquy  upon  the  grey  hairs  of  the  chair- 
man of  the  committee  on  finances.  It  had  be- 
come the  constant  practice  of  gentlemen,  pro- 
fessing to  be  exclusive  friends  of  the  Erie  canal, 
to  impute,  to  the  gentleman  from  Herkimer, 
most  unfounded  hostility  to  our  great  canal. — 
What  gentleman,  making  these  accusations,  had 
introduced  so  just  and  liberal  provisions  for  the 
Erie  canal,  as  the  chairman  of  the  committee  of 
finance  had  done  ?  not  one  of  them.  The  third 
section  of  the  original  article  proposed  to  reserve 
from  surplus  canal  revenues  $172,500  annually 
for  general  state  expenses,  and  to  apply  the  whole 
of  the  remainder  of  the  annual  revenue,  beyond 
the  requirments  of  the  two  sinking  funds,  to  the 
Erie  Canal,  until  it  should  reach  the  sum  of  $2,- 
500,000.  He  consented  to  continue  the  half  mill 
tax  for  the  support  of  government,  during  a  pe- 
riod, variously  estimated  from  six,  to  ten  years, 
so  that  this  expenditure  for  the  canal  might  be 
made  within  that  time.  Was  this  hostility  to  the 
Erie  canal  ?  Yet  gentleman,  who  had  voted  to 
strike  out  this  very  provision  from  the  report, 
presumed  to  make  such  charges.  They  forced 
the  Convention  to  bring  in  other  canals  to  share 
the  first  surplus  revenues,  and  thus  compel- 
led the  finance  committee  to  give  up  their 
intended  preference  for  the  improvement  of 
the  canal,  which  was  the  rich  source  of  nearly 
all  the  revenues.  We  were  compelled  by 
the  action  of  the  professed  friends  of  ihe  Erie 
canal  to  share  the  first  Surplus  with  two  other 
unfinished  canals,  thus  inevitably  delaying 
the  improvement  of  their  favorite  work.— 


Gentlemen  should  exhibit  more  consistency  be- 
fore making  such  charges. 

The  gentleman  from  Madison,  charged  that  the 
chairman  of  the  committee,  was  in  favor  of  the 
law  of  1835,  authorizing  the  improvement  of  the 
Erie  canal  from  its  own  surplus  revenues,  and  that 
he  now  would  withdraw  "all  care  and  protection 
from  a  child  christened  at  his  own  baptismal 
font."  It  was  true,  that  the  gentleman  did  sus- 
tain that  law,  as  a  wise  and  just  law.  Could  it 
have  been  observed  to  this  day,  that  "child" 
would  have  grown  to  full  manhood,  and  the  state 
would  have  been  saved  from  $20,000,000  of  debt 
and  $2,000,000  of  direct  taxation.  But  the  new 
impulse  of  1838,  took  the  "child"  from  its  own 
parents,  and  prohibited  all  the  prudent  care  of 
the  gentleman  from  Herkimer  over  it. 

Now,  when  all  admit  it  would  have  been  far 
better  to  have  perpetuated  the  principle  of  the 
act  of  1835,  which  would  have  completed  the 
enlargement  without  debt  or  taxation,  and  all  are 
compelled  to  return  to  sound  and  safe  action, 
what  does  the  gentleman  from  Herkimer  propose  ? 
He  proposes  to  perpetuate  by  constitutional  law, 
the  very  principles  of  that  act — to  secure  the 
first  practicable  surplus  revenues,  to  this  same 
Erie  canal,  of  which  he  is  charged  to  be  an 
enemy  ! 

For  one,  Mr.  R.  preferred  the  third  section  of 
the  original  article  to  any  which  had  been  offered, 
but  as  that  section  had  been  voted  out,  he  must 
take  the  best  provision  he  could,  which  would 
benefit  the  canals  themselves,and  at  the  same  time 
make  such  specific  appropriation,  as  would  pro- 
tect the  legislature  from  a  general  scramble  of 
localities,  or  private  objects,  to  scatter  and  dissi- 
pate to  unworthy  purposes,  revenues  arising 
from  an  indirect  tax  upon  those  who  produce  and 
those  who  consume  the  property  conveyed  on 
our  canals.  He  could  vote  for  no  proposition 
leaving  a  yearly  revenue  so  large,  to  the  mercy 
of  legislative  lobbies. 

Mr.  HUNT  said  he  rose  not  with  a  view  to  in- 
fluence the  vote  of  any  other  member,  but  to 
state  the  considerations  that  would  govern  his 
own.  He  was  opposed  to  state  debts,  and  to  the 
whole  British  system  of  finance — I  mean,  he  said, 
the  system  of  William  Pitt  arid  Alexander  Ham- 
ilton. It  may  be  a  very  good  sytem  for  aristocrats, 
but  is  the  worst  of  all  possible  systems  for  demo- 
crats. I  am  in  favor  of  taking  the  state  of  New- 
York  out  of  pledge  as  soon  as  possible,  and  of 
fixing  a  constitutional  guarantee  against  its  ever 
being  mortgaged  at  the  pawnbroker's  again.  And 
as  the  amendment  proposed  by  the  gentleman 
from  Schoharie  to  the  first  section  will  somewhat 
prolong  the  term  of  our  debt  and  bondage,  I  shall 
vote  against  it.  I  do  not  wish  to  wait  more  than 
nineteen  years  for  the  state  of  New  York  to  be- 
come free  and  independent.  If  I  must  lead  a  life  of 
debt  and  dependence,  at  least  let  my  bones  be 
laid  in  an  unmortgaged  grave.  On  the  other  hand 
I  am  in  favor  of  the  enlargement  of  the  Erie  ca- 
nal. The  repeal  of  the  British  corn  laws  and  of 
the  tariff  of  '42  will  give  a  mighty  impetus  to 
our  trade,  and  render  such  enlargement  neces- 
sary, not  merely  to  the  state,  but  to  the  Union, 
and  the  world.  The  city  which  I  in  part  repre- 
sent, is  not  only  a  portion  of  the  state  of  New 
York,  but  a  portion  of  the  Union— a  province  of 


921 


the  commercial  world.  In  the  name  of  the  Union 
— in  the  n;Mn<>  of  the  commercial  world — I  claim 
the  prosecution  (but  not  a  reckless  prosecution) 
;it  great  work.  I  am  willing  to  pledge  a 
portion  of  the  canal  revenues  to  that  object.  I 
shall  not  be  frightened  from  my  course  by  the  cry 
of  direct  taxation.  That  is  the  only  fair  mode  of 
taxing— the  only  mode  under  which  capital  can 
hi-  made  to  bear  its  just  share  of  the  public  bur- 
thens— the  best  possible  check  upon  the  profliga- 
cy of  the  legislature  and  the  rapacity  of  the  lob- 
by. So  long  as  government  shall  be  permitted  to 
steal  its  hands  into  the  pockets  of  busy  trade  and 
unconscious  labor,  either  by  indirect  taxation  or 
by  borrowing,  it  will  be  apt  to  waste  its  revenues 
with  the  same  recklessness  that  the  pickpocket 
squanders  his  plunder.  One  word  to  our  western 
friends  in  return  for  the  many  words  they  have 
addressed  to  the  delegation  of  the  city  of  New 
York.  Beware  how  you  sutler  the  canal  policy  to 
be  made  a  pretext  for  again  carrying  our  noble 
state  to  the  sign  of  the  three  balls.  Our  posterity 
must  not  be  mortgaged  under  any  pretext  what- 
ever. It  is  little  better  than  infanticide.  It  is  a 
very  great  crime  to  kill  our  offspring;  it  is  a  very 
mean  crime  to  pawn  them.  So  long  as  govern- 
ment possesses  the  taxing  power — while  the  en- 
tire wealth  of  the  state  is  at  its  disposal,  to  take 
tor  public  use  all  that  the  public  exigencies  re- 
quire— it  can  have  no  excuse  for  again  resorting 
to  the  borrowing  system — a  system  under  which 
we  have  paid  and  have  to  pay  to  the  money  lend- 
ers, or  paper  lenders  rather,  for  the  bare  article 
of  interest — an  article  you  can  neither  eat,  nor 
<lrink,  nor  wear — a  far  greater  amount  of  our  earn- 
ings than  we  have  paid  for  the  actual  construction 
of  all  our  public  works.  It  is  to  the  ruinous,  im- 
moral  and  demoralizing  state  debt  system,  and  not 
to  the  canals,  that  the  city  of  New  York  is  oppos- 


ed. 

Mr.  BOUCK. 
propose,  would  pay  the   debt  in  a  little  less  than 


The    pbn  I    had  the  honor   to 


23  years. 
HUNT, 
rate.     (Laughter.)     However,  I  shall  go  for  that 


I  am  very  glad  to  hear  that,  at  any 


system    that  will 
time,  after  all. 


pay  the    debt   in  the  shortest 


Mr.  R.  CAMPBELL  Jr.,  said  he  was  sorry  that 


recriminations  had  been  permitted  to  enter  into 
this  discussion.  To  him  it  mattered  but  little  wha 
had  been  the  previous  course  of  any  delegate  upon 
-this  floor  in  reference  to  the  creation  of  the  State 
debt,  he  believed  their  several  constituencies  had 
sent  them  here  to  consult  together,  as  to  the  best 
in-inner  in  which  provision  could  be  made  for  its 
extinguishment.  He  said  that  different  members 
who  spoke  in  opposition  to  the  report  of  the  com- 
mittee, had  amused  themselves,  and  perhaps,  the 
Convention,  by  reading  legislative  documents  to 
prove  that  certain  other  members,  who  in  former 
times  held  public  offices,  had  advocated  the  en- 
largement of  the  Erie  canal.  Mr.  C.  said  he  be- 
lieved that  the  persons  alluded  to  then  and  now 
believed  that  the  enlargement  of  the  Erie 
canal,  in  a  manner  consistent 
sources  of  the  State,  would 


with    the 
promote 


re- 
the 


be-t  interests  of  the  people.  He  was  also  willing 
to  admit  that  the  acts  of  no  one  administration 
were  the  sole  cause  of  our  large  State  debt,  that 
in  his  opinion  the  cause  was  to  be  found  in  the 


acts  of  a  political  party  ;  that  prior  to  1835  cer- 
tain prominent  newspapers  and  a  large  portion  of 
the  citizens  of  this  State,  complained  that  the 
Erie  canal  was  not  large  enough  to  do  the  trans- 
portation business  of  the  western  States;  and  they 
presented  to  the  public  so  strong  an  array  of  facts 
and  aiguments  in  favor  of  its  enlargement,  that 
the  administration  then  in  power  were  induced 
by  such  facts  and  arguments  to  recommend  a 
moderate  enlargement  of  the  Erie  canal,  (but 
fifty  feet  wide  and  five  feet  deep,)  and  that  the 
work  should  proceed  only  as  the  surplus  tolls  of 
the  canals  should  justify.  He  said  that  a  few  years 
after  the  period  to  which  he  had  just  alluded, 
there  arose  a  "  new  impulse''  party  partaking  in 
zeal  and  in  judgment  of  the  "  unregulated  spirit 
of  speculation"  of  1836;  and  that  in  1837  and  1838, 
the  same  party,  through  its  presses  and  public 
speakers,  proclaimed  that  the  State  of  New  York 
"  was  in  its  shell,"  and  "  was  loosing  cast" — that 
Pennsylvania  and  other  sister  States  would,  in  the 
course  of  a  few  years  divert  a  large  portion  of  the 
trade  of  our  canals,  and  that  if  "  a  more  speedy 
enlargement"  was  not  adopted,  the  profits  of  the 
western  trade  would  be  lost  to  New  York;  and 
that  no  administration  was  worthy  of  the  confi- 
dence or  support  of  the  people  which  did  not  sub- 
scribe to  the  "new  impulse"  policy,  and  exten- 
sion of  our  canal  system.  Sir,  these  advocates  of 
the  "  new  impulse''  kept  the  ball  in  motion  until 
they  obtained  the  entire  control  of  the  executive 
and  legislative  branches  of  our  government,  and 
in  183S  assumed  the  position  that  it  was  sound 
policy,  to  borrow  the  sum  of  four  millions  of  dol- 
lars in  each  of  the  ten  successive  years,  upon 
the  strenglh  of  government,  to  be  expended  in  the 
enlargement  ot  the  Erie  canal  and  other  works  of 
internal  improvement.  Sir,  this  "  new  impulse" 
running  in  debt  policy,  was  continued  until  the 
entire  resources  of  the  State  treasury  and  Stale 
credit  were  exhausted,  anH  the  government  wag 
upon  the  eve  of  bankruptcy.  Yes,  sir,  the  State 
treasury  was  swept  and  garnished — the  last  piece 
of  silver  could  not  be  found  to  defray  the  expens- 
es of  government,  the  people  then  became  alarm- 
ed, and  with  a  stentorian  voice  demanded  that  the 
"  new  impulse"  administration  should  give  place 
to  one  that  would  act  upon  a  '«  stop  and  pay"  po- 


licy. Sir,  I  have  felt  called  upon  by  the  wu'e 
K range  this  debate  has  taken,  and  the  erroneous 
T%tatements  of  some  who  have  spoken,  to  give  thig 
brief  sketch  of  the  rise,  progress  and  decline  rf 
the  "  new  impulse"  and  debt-creating  party.  Mr. 
C.  said  the  history  of  all  political  parties  in  all  gc- 
vernments  has  usually  been  the  history  of  strife  be- 
tween two  antagonist  principles  of  government. 
The  political  contests  in  this  State  during  the  past 
ten  years,  have  been  between  the  credit  system,  and 
"pay  asyou  go"  policy.  Sir, the  honorable  delegaio 
from  Madison  (Mr.  BRUCE)  enquired  who  petitior . 
ed  for  the  law  of  1842  ?  He,  Mr.  C.  said  he  cou'd 
not  answer  that  question,  but  he  could  inform  that 
gentleman,  that  a  large  majority  of  those  who  com- 
posed the  Legislature  of  1844  were  instructed  by 
their  constituents  to  vote  for  the  "  stop  and  p;  y 
law"  of  1842,  and  that  a  large  majority  of  tie 
people  of  this  State  had  since  repeatedly  appn  v- 
ed  of  such  law,  and  he  would  further  inform  him 
that  a  majority  of  delegates  of  this  convention 
were  instructed  to  engraft  the  main  features  of 

90 


922 


that  law  upon  (he  Constitution,  that  it  should  be- 
come the  fundamental  law  of  the  State. 

Mr.  CHAMBERLAIN  asked  the  gentleman  to 
explain  what  he  meant  by  the  policy  ot  1842, 

Mr.  CAMPBELL  replied  that  it  was  embodied 
in  the  act  of  1842,  and  was  well  knovyn  to  the 
people  as  the  "  stop  and  pay"  law,  that  it  contem- 
plated the  payment  of  the  State  debt  from  the  sur- 
plus tolls  of  the  canals  in  the  period  of  22£  years. 
Mr.  CHAMBERLAIN  enquired  upon  what 
part  of  the  act  of  1842,  he  founded  such  an  in- 
terpretation. 

Mr.  CAMPBELL  replied  upon  the  whole  of 
that  act,  from  the  understanding  and  speeches  ot 
those  who  advocated  it,  and  from  the  interpreta- 
tion given  to  it  by  the  act  of  1844.  Mr.  C.  said 
he  should  vote  for  the  amendments  of  the  gentle- 
man from  Herkimer,  (Mr.  LOOMIS)  ;  they  were,  he 
said,  offered  in  a  spirit  of  compromise,  and  were 
extremely  liberal  in  creating  a  fund  to  complete 
the  unfinished  canals;  that  if  they  were  in- 
troduced into  our  Legislature,  they  would,  in  con- 
junction with  the  act  of  1842,  be  entitled  an  act 
to  extend  the  time  tor  the  payment  of  the  public 
debt,  and  to  provide  a  fund  for  the  completion  of 
the  unfinished  canals.  He  said  that,  in  his  opin- 
ion,  the  surplus  tolls  of  the  Erie  canal  beyond  the 
amount  appropriated  to  pay  the  canal  and  general 
fund  debts,  would  be  sufficient  in  eight  or  ten 
years  to  complete  the  Genesee  and  Black  river  ca- 
nals, and  the  Erie  canal  enlargement,  and  that  he 
believed  the  interest  of  the  lateral  canals  would 
be  promoted  by  leaving  the  surplus  tolls,  not  ap- 
propriated by  the  first  and  second  section  of  the 
report  under  consideration,  to  the  discretion  of  the 
Legislature;  that  it  there  should  be  at  any  lime 
half  a  million  of  dollars  unappropriated  in  the  trea- 
sury, the  Legislature  would  act  more  wisely  in  ap. 
propriating  that  sum  to  the  completion  of  one  of  the 
lateral  canals  than  in  distributing  upon  the  entire 
line  of  the  Erie.  Genesee  and  Black  river  canals  ; 
that  if  distributed  rateably  between  those  works, 
so  small  a  sum  would  hardly  be  sufficient  to  sharp 
en  the  pick  axes  of  the  laborers  who  should  be 
employed  to  do  the  work.  (Mr.  C.  was  proceed- 
ing wilh  his  remarks  when  the  President  announc- 
ed by  his  hammer  that  Mr  C.'s  15  minutes  had  ex- 
pired.) 

Mr.  W.  TAYLOR  said,  when  the  fifteen  min- 
utes allowed  him  on  Saturday  expired,  he  was  re 
marking  upon  the  indebtedness  of  the  canals 
the  general  fund  for  the  advances  which  had  been 
made  from  that  fund,  and  he  had  intended  to  con- 
tinue som'e  further  remarks  upon  that  subject,and 
upon  some  other  topics  connected  with  the  section 
under  consideration.  But  lie  found  himself  com- 
pelled to  turn  his  a'tention  for  the  present  to  the 
remarks  which  had  just  fallen  from  the  gentleman 
from  Madison,  (Mr.  BRUCE  )  That  gentleman  has 
seen  fit  to  come  out  wuh  the  bold  and  sweeping 
charge,  not  only  upon  the  chairman  ot  the  com- 
mittee, (Mr.  HOFFMAN,)  accusing  him  with  hos. 
tility  to  the  cana.s,  and  saying  that  he  believed 
he  would  burn  up  the  canals  il  he  could,  but.  also, 
Mr.  T.  said,  upon  himself,  saying  that  he  profes- 
sed to  be  a  friend  to  the  canals  and  came  here  to 
make  war  upon  them. 

Mr.  BRUCE  here  rose  to  explain. 
Mr.  TAYLOR   said  he  noted  the  words  at  the 
time/ and   they   were    precisely  as  he  had  stated 


th^m;  a  charge,  he  said,  utterly  and  entirely  with- 
DVjt  foundation;  nothing  in  his  public  or  private 
life,  nothing  that  he  had  ever  said  or  done  would., 
in  the  least,  justify  the  assertion.  He  had  said, 
and  said  truly,  that  he  was  and  ever  had  been,  a 
friend  to  our  system  of  internal  improvemr nts,but 
there  are  different  ways  in  which  gentlemen  man- 
ifest their  friendship  for  the  system.  And  he 
would  ask  which  were  to  be  regarded  the  true 
friends  of  the  canals,  those  who  professing  to  be 
their  friends,  rush  forward  in  a  career  of  indebted- 
ness, borrowing  without  providing  any  means  of 
paying,  looking  only  to  the  future,  glorying  in  the 
brilliant  prospects  presented  to  then  imaginations, 
unmindful  of  the  sober  realities  around  them,  of  the 
impending  danger  which  hangs  oven  them  from 
deranged  and  mismanaged  finances,  until  compel- 
led  from  stern  necessity,  from  the  sinking  of  cied- 
it,  from  the  magnitude  of  indebtedness,  to  stop  in 
the  midst  of  their  progress,  suspend  operations, 
and  indefinitely  postpone  the  completion  of  the 
public  works? — or  those  who  would  progress  with 
a  system  of  internal  improvements  upon  a  basis  of 
sound  financial  policy,  a  policy  which,  when  a 
debt  is  created,  looks  to  the  means  of  payment, 
and  steadily  pursues  its  object,  safely,  prudently, 
cautiously  to'complete  and  final  success,  without 
embarrassment  or  any  of  that  visionary  rashness 
that  jeopards  and  endangers  the  accomplishment 
of  the  work?  Such  was  the  policy  pursued  previous 
to  1838,  and  which  enabled  the  state  to  complete 
more  than  650  miles  of  canals,  and  put  them  in 
successful  operation ;  and  such  was  the  credit  of 
the  state  during  the  period  all  this  was  going  on, 
that  she  had  borrowed  more  than  eleven  millions 
of  dollars,  on  which  she  had  received  $340,000  in 
premiums  on  her  stock,  and  had  paid  off  her 
canal  debt,  principle  and  interest,  leaving  only  a 
debt 'unprovided  for  of  about  $2,700,000  !  This, 
sir,  is  such  a  policy,  such  a  plan  of  carrying  out 
a  system  of  internal  improvements,  as  commends 
itself  to  the  approbation  of  the  people,  and  such' 
as  he  was  the  friend  of.  But,  sir,  after  the  close 
of  the  year  1837,  anew  state  of  things  existed,  a 
new  set  of  men  were  in  power,  and  then  com- 
menced the  go-ahead  policy,  the  hurried  indebt- 
edness, the  calculations  of  the  future,  the  procla- 
mations that  all  was  safe,  the  glorification  of  the  su- 
perior  wisdom  of  the  policy  then  pursued,  the  dis- 
regard of  impending  danger ;  and  in  the  midst  of 
to  ^the  revel  and  the  feast,  the  hand  writing  was 
seen  upon  the  wall,  the  awful  words  were  pro- 
nounced by  the  sovereign  constitutional  body, 
and  the  men  in  power  were  compelled  to  give 
place  to  other  men,  and  to  another  policy.  And 
what  was  the  state  of  your  finances  and  public 
works  after-  the  short  period  of  five  years,  from 
1838  ?  Instead  of  a  debt,  canal  and  general  fund, 
of  a  little  over  four  millions  of  dollars,  it 
was  found,  or  has  since  been  ascertained  to  have 
been  at  that  time,  (1842)  about  $28,000,000  !  The 
public  works  stopped,  or  nearly  so;  your  credit 
impaired,  and  your  finances  generally  deranged. 
The  gentleman  from  Cattaraugus  (Mr.  HAWLEY) 
has  charged  the  embarrassed  state  of  the  finances 
and  the  fall  of  state  stock  to  the  minority  report 
of  the  gentleman  from  Herkimer  (Mr.HoFFMAN) 
in  1841.  Sir,  how  could  this  be,  when  the  chair- 
man of  the  finance  committee  in  his  report  of  that 
session,  which  was  made  some  time  before  the 


923 


minority  report  was  submitted,  stated  the  state 
stocks  to  be  then  but  eighty   three  per  cent;  anc 
it  was  stated  by  himself  and  others,  on  this  floor 
at  that  time,  and  uncontradicted,   that  the  state 
stocks  were  twenty  per  cent  below  par.  Then 
how  could  that  truthful  report,  panic  report  as 
the  gentleman  calls  it,  produce  this  effect,  unless 
he  imputes  to  it  powers  that  no  other  thing  ever 
possessed,  the  power  of  producing  the  effect  be- 
fore it  had  an  existence  !  Now,   Mr.  T.  said,  he 
would  ask  the  gentleman  from  Madison,  who  thus 
rashly  accuses  the  gentleman  from  Herkimer  (Mr. 
HOFFMAN)  of  hostility  to  the  canals,  how  has  it 
happened  that  since    1842,  when  a  change,  a 
ladical  change  of  policy   was   adopted,  that   the 
stale  has  been  enabled  to  arrest   the   progress  of 
indebtedness,  to  pay  promptly  the  interest  and  to 
rede'ern  about  $6,000,000  of  her  debts,  and  that 
we  are  now  enabled  to  make  sure  and  certain  pro- 
vision for  the  redemption  of  all  our  state  stocks  by 
the  time  they  will  fall  due'  and  to  commence  again 
the  prosecution  of  our   public   works  upon  a  safe 
sure,  and   successful  basis,  and  to  go  on  with  them 
until  all  our  canals,  the  enlargement  and  the  lateral 
canals,  shall   be  completed,  and    which  we  may 
confidently  anticipate  at  no  very  distant  period;  to 
what  he  would  inquire   is  this,   to   be    attributed 
but  to  the  policy  of  '42?  And  to   whom  are  the 
people  of  this  state  chiefly  indebted  for  that  poli- 
cy ?    Who  more  than  to  the  gentleman  from  Her- 
kimpr,  whostood  here  then  with  unflinching  firm- 
ness in  the  maintenance  and  adoption  of  the  plan 
proposed  by  himself,   and  then  as  now,    incurred 
the  denunciations  of  the  professed  exclusive  friends 
of  the  canals^  friends  whose  policy  was  ruinous  to 
the  system  ?\V;d  yet  charge  that  gentleman  with 
hostility  to  your  canal  ?  you  might  as  well  charge 
him  who  perils  his  life  to  rescue  a  drowning  friend 
with  hostility  to  that  friend,   as  charge  him    (Mr. 
HOFFMAN-)    with    hostility   to   the  system  of  in- 
.lernal  improvement      The  people  have  long  since 
pronounced  judgment  upon  this  matter,   and  they 
will  now  see  more  clearly  than  ever  who  are  the 
true  friends  of  the  canals,  the  friends  of  a  sound 
system  of  finance,  the  friends  of  the  credit  of  the 
state,  its  honor,  and  its  faith,  and  who  would  se- 
cure them  from  the  like  embarrassments,   indebt- 
edness, and   taxation,  tor  the  future.     He  said  his 
time  would  only  p.-rmit  him  to  add,    that  he  con- 
sidered the  plan  proposed  by  the  Chairman  of  the 
committee,  (Mr.  HOFFMAN)  regarded  as  a  finance- 
measure,   so   far   as  he  was  capable  of  judging  of 
these  matters,  as   preferable  to  any  other,  but  he 
was  gratified  that  the  other  gentlem<in  from  Her- 
kimer, (Mr.  LOOMIS)   had  submitted   his   amend, 
ment,  because,  as  he  understood  it,  it  would  sub- 
stantially meet  the  engagements  of  thestate  in  the 
extinguishment  of  her  debts,  and   would  afford  a 
much  larger  sum  for  the  public  works  for  the  first 
nine  years;  in  which  time  much,  and  perhaps  all 
that  would  be   of  any   pressing   necessity,  would 
be  accomplished. 

Mr.  TOWNSEND  stated  that  the  question  im- 
mediately presented  was,  will  you  trust  subse- 
quent legislatures  as  to  the  completion  of  the  pub- 
lic works,  or  will  you  constitutionalize  the  meas- 
ure.—This  was  the  difference  between  the  plans 
of  the  gentleman  from  Herkimer  (Mr.  LOOMIS) 
and  the  gentleman  from  Schoharie  (Mr.  BOXJCK.) 
It  certainly  was  a  singular  spectacle  that  we  now 


saw  presented  by  gentlemen  who  had  at  the  early 
period  of  our  session  claimed  all  merit  for  the 
character  of  the  legislature — to  such    a  degree 
even  as  to  doubt  the  necessity  or  propriety  of 
calling  this  Convention— to  find  them  so  anxious 
to  deprive  the  legislature  of  a  discretionary  pow- 
er over  the  sums  that  may  be  at  their  disposal, 
from  the  surplus  revenues  of  the  canals.     Under 
the  plan  of  the  gentleman  from   Herkimer  (Mr. 
LOOMIS)  an  amount  increasing  from  500,000  to  2 
million  per  annum— contemplating  the  probable 
increase  of  business  upon  the  canals— will  be  left 
at  the  discretion  of  the  legislature  for  the  comple- 
tion of  the  public  works.     This  amount  would  of 
course  be  effected  by  the  course  that  the  legisla- 
ture might  choose  to  take  upon  the  question  of  a 
direct  tax  for  the  civil  expenses  of  this   State. — 
Should  they  continue  a  small  tax  say  that  of  a  1-4 
1-3  or  1-2  mill,  strictly  for  the  purpose  of  de- 
fraying the  civil  expenses,  for  one  he  believed  it 
would  really  prove  an  economical  measure.     Un- 
der a  proper  appraisment  of  the   property  of  the 
State,  1000  millions  would  probably  be  presented, 
for  State   taxation,   1-4  of   a  mill  would  pro- 
duce 250  thousand  per  annum — a  sum  sufficient 
to  defray  the  civil  expenses,  when    general  laws 
have  produced  short  and  inexpensive  sessions  of 
the  legislature  and  an  economical  management  of 
our  prisons  and  public  chanties,  if  not  a  revenue 
— a  much  diminished  expenditure  on  their  ac- 
count.    Whether  this  plan  will  be  adopted  or  not, 
he  considered  that  any  reliance  for  a  permanency 
upon  the  Auction  and  Salt  duties,  for  the  support 
of  the  State  government  was  futile.     The  comp- 
troller had  told  us  that  not  over  $40,000  might  be 
expected  from  the  salt  duty,  now  reduced  to  one 
cent  per  bushel.     And  he  would  tell  gentlemen 
that  we  probably  held  the  100  thousand  from  the 
auction  duties  upon  but  a  slight  tenure,   resting 
only  upon  the  fact  that  the  auctioneers  had  not 
combined  and  brought  the  legality  of  the   tax   to 
the  decision  of  the  supreme  court  of  the  United 
States.     As  a  New  Yorker,  this  matter   of  direct 
axation  was  not  the  bug-bear  that  it  appeared  to 
se  even  to  many  of  his  own  political  friends  from 
other  quarters  of  the  State.     We  were  now  in  the 
city  taxed  towards  defraying  the  annual   interest 
on  a  local  improvement  (the  Croton,)  some  $400,- 
000  or  more  per  annum — and  our  contribution 
towards  the  State  tax  had  been  as  large  as  $230,- 
000  ;  within  a  few  years  an  aggregate  of  between 
D  and  600,000  dollars,  was  annually  drawn  from  our 
citizens  for  the  purpose  of  sustaining  local  and 
State  internal  improvements.  The  chairman  of  the 
committee  whose  report  we  were  considering(Mr. 
HOFFMAN)  would  agree  in  the^assertion  that  no 
irmer  nor  earlier  friends  to  the  proposition  for 
he  preservation  of  the  State  credit  by  the  impo- 
ition  of  direct  taxation  exist,  than  the  constitu- 
ency of  the  city  of  New  York,  whose  delegation 
>n  this  floor  sustained  the  proposition  at  its   ear- 
iest  suggestion,  even  in  the  year   1841.     Acting 
as  patriotically  as  they  had  in  coming  to  the  res- 
cue of  the  State  in  its  difficulties  brought  about  by 
the  too  ardent  friends  of  the  public   works — the 
conduct  of  the  delegation  on  this  floor,  in  bearing 
unrebuked  heretofore  the  anathemas  of  the  gen- 
tleman from  Western  localities,  as  to  our  indiffer- 
ence upon  the  question  of  internal  improvements, 
must  have  struck  impartial  hearers  as  indicative 


924 


of  great  forbearance  on  the  part  of  the   assailed. 

The  gentleman  from  Delaware,  (Mr.  WATER- 
BURX)  had  said  truly  a  day  or  two  since,  that  af- 
ter all  the  professions  that  are  heard  about  honor 
and  liberality  on  this  floor — gentlemen  carried 
their  honor  generally  but  little  farther  than  their 
pockets  sympathised  with  the  movement.  Sup- 
pose that,  influenced  by  a  local  view  of  the  ques- 
tion, as  to  which  was  the  most  economical  mode  of 
reaching  with  boats  of  a  large  class  the  boundless 
region  of  the  west— the  new  copper  mines,  if  you 
please,  on  the  shores  of  Lake  Superior,  we 
should  prefer  to  meet  our  object  by  an  expendi- 
ture of  three  millions  in  continuing  the  enlarge- 
ment to  Syracuse,  and  thence  to  Oswego — or  even 
by  a  less  sum  via  Rome  and  the  Oneida  Lake  to 
Lake  Ontario — rather  than  by  continuing  the  en- 
largement to  Buffalo,  to  involve  the  expenditure 
of  12  millions,  and  not  attain  any  greater  benefit 
to  the  eastern  portion  of  the  stale  than  either  of 
the  first  two  propositions  would  secure. 

Could  we  be  well  charged  with  a  want  of  pro- 
per feeling  upon  the  subjeci,  if  we  in  view  of 
these  circumstances,  and  the  fact  that  the  city  of 
Hew  York  which  now  has  a  local  debt  of  13  mil- 
lions, desired  to  move  prudently  in  lavoring  pro- 
positions that  looked  to  a  prolongation, and  possi 
bly  an  increase  of  the  state  debt,  the  burthens  of 
which  the  city  at  present  contributed  neaily  one- 
half  to  sustain,  and  in  a  proportion  greatly  beyond 
her  relative  population.  Willing  as  1  am  to  con- 
cede the  vast  importance  of  the  public  works  to 
the  commerce  of  New  York,  I  cannot  forget  that 
long  ere  they  were  projected  by  the  gigantic 
minds  of  Clinton  and  his  associates — New  York 
existed  as  the  prominent  commercial  city  of  the 
Union — and  at  this  day  much  of  her  trade  was  en- 
tirely independent  of  the  canals.  As  indicative 
of  the  magnitude  of  some  branches  of  our  trade, 
I  will  mention  the  fact,  that  as  counted  from  a 
Light  House  upon  Long  Island  Sound,  the  coast- 
ing vessels  to  and  from  New  York  during  a  single 
week,  within  the  past  three  years  were  computed 
at  11UO — ot  a  capacity  so  great  that  one  third  of 
their  number  would  be  more  than  equal  to  the 
tonnage  passing  along  one  point  that  presented 
the  aggregate  trade  of  the  Erie  and  Cnamplam 
Canals.  The  capacity  of  the  Erie  canal  was  now 
far  more  extended  than  many  were  disposed  to 
admit.  From  personal  knowledge,  he  knew 
that,  exclusive  of  lulls,  a  ton  of  merchandize 
was  now  carried  from  Albany  to  Buffalo  for  $1, 
and  in  some  instances  at.  623  cents,  whilst  a  bar- 
rel of  flour  can,. be  brought  from  Oswego  to  the 
Hudson  for  15  cents,  without  tolls.  Thus  in  the 
upward  freight  exhibiting  a  much  lower  rate  even 
than  the  gentleman  from  Herkimer  (Mr.  HOFF- 
MAN) had  estimated  in  his  opening  remarks. — 
Goods  which  he  had  himself  sold  within  the  last 
week,  were  now  going  from  New  York  to  Chicago 
at  a  cost  of  but  50  cents  a  hundred  pounds,  in 
eluding  every  charge,  for  a  distance  oi  near  1500 
miles  of  river,  canal,  and  lake  transportation. — 
Under  this  view  he  had  hoped  to  have  seen  the 
proposition  made  by  the  standing  committee  con- 
firmed by  the  Convention.  Under  the  provisions 
of  their  first  section,  from  the  progressive  increase 
of  canal  revenues,  the  unfinished  works  could  be 
gradually  and  safely  completed.  Modifications  in 
the  English  restrictive  laws,  which  were  likely 


soon  to  be  followed  by  other  European  Govern- 
ments, were  now  producing  a  large  increase  in  canal 
tolls  over  even  the  great  amount  oi  fhe  season  of 
1845.  He  placed  the  receipts  the  current  year  at 
three  millions  of  dollars.  The  new  ware  house 
act,  if  properly  understood  by  our  Canadian  neigh- 
bors, would  be  found  to  encourage  the  transit  of 
their  property  through  our  canals,  at  least  at  sea- 
sons when  the  navigation  of  the  St.  Lawrence  be- 
came peculiarly  perilous. 

Heretofore,  upon  such  merchandize  the  duty 
in  cash  would  be  required  at  our  western  custom 
houses.  Now,  under  the  ware-house  act,  as  pro- 
perly interpreted  by  the  recent  circular  of  the 
Secretary  of  the  Treasury,  no  other  charges 
would  be  incurred  on  the  produce  of  the  Canadas 
seeking  the  Atlantic  through  our  canals,  than 
those  incident  to  the  transportation  of  American 
productions  intended  for  a  foreign  market.  From 
these  considerations,  he  believed  that  a  fund 
would  arise  under  the  plan  of  the  committee, 
amply  sufficient  to  complete  the  enlargement 
within  the  period  of  eight  years.  Many  gentle- 
men had,  however,  concluded  that  the  proposi- 
tions with  reference  to  the  public  debt  and  reve- 
nues, made  by  the  gentleman  from  Herkimer, 
(Mr.  LOOMIS,)  as  a  compromise,  would  best  meet 
public  expectation.  Mr.  T.  trusted  that  this- 
would  meet  with  the  approbation  of  those  who 
had  invited  it,  and  in  that  expectation,  would 
cheerfully  sustain  it  by  his  vote. 

Before  he  took  his  seat,  and  while  he  was  yet 
within  the  limit  of  time  prescribed  under  the 
rule  for  speakers,  he  would  present  a  plan  under 
which  localities  that  might  be  benefitted  by  the 
completion  of  the  unfinished  works  passing 
through  them,  could  secure  their  completion  in  a 
measure  independent  of  the  means  of  the  state  at 
large.  If  the  friends  of  the  Genesee  Valley  and 
Black  River  canal  were  honest  in  their  profes- 
sions as  to  their  belief  in  the  capability  of  these 
works  when  completed  to  pay  the  expenses  of 
their  construction,  they  would  cheerfully  adopt 
the  principles  shadowed  forth  in  the  sections  he 
would  now  send  to  the  chair  ;  and  thus  avoid  the 
long  delay  that  the  completion  of  those  works 
from  the  surplus  canal  revenues  alone  would  re- 
quire : 

^  1.  The  several  counties  through  which  the  Genesee 
Valley  and  Black  River  canals  are  projected,  shall  have, 
after  having  obtained  the  assent  of  a  majority  of  their  elec- 
tors, ascertained  by  a  vote  given  upon  a  question  submit' 
ted  by  recommendation  of  three  fourths  of  the  members 
of  their  several  boards  of  supervisors,  the  privilege  of  rais- 
ing annually  a  sum  not  exceeding  —  per  cent  upon  the 
assessed  value  ot  the  real  estate  within  the  county,  to 
be  appropriated  exclusively  towards  the  improvement 
or  completion  of  any  portion  of  the  line  of  either  ol  the 
canals  named  herein. 

^2.  For  the  reimbursement  of  any  sums  so  advanced,  the 
revenues  of  such  portions  of  the  canals  as  have  been  placed 
in  operation  by  the  contributions  of  said  counties,  shall  be 
lorever  pledged,  together  with  the  nett  revenues  arising 
upon  the  canals  now  in  operation  from  the  transit  of  ton- 
nage which  may  have  passed  upon  any  portion  of  the  pub- 
lic works,  pieced  in  operation  by  the  foi  egoing  section. 

§3.  'I  he  nett  revenues  referred  to  in  the  preceding  sec- 
tion shall  be  computed  by  the  Board  of  Canal  Commission, 
ers.by  deducting  a  lair  charge  for  constructing  and  operat- 
ing any  of  the  canals  or  portions  oi  canals  now  in  use. 

Mr.  RHOADES  continued  the  debate. 

Mr.  WHITE  said :— I  desire  before  this  question 
is  taken,  and  in  the  brief  time  that  is  allowed  me 
by  the  rules  of  the  Convention,  to  assign  the  rea- 


925 


sons  which  will  govern  my  vote  upon  this  sec- 
tion of  the  report  of  the  committee  <>n  finance.  I 
am  (he  move  desirous  of  doing  so,  hi-muso  1  have 
n  to  apprehend  that  vote  will  be  in  opposi- 
tion to  si'veral  of  my  esteemed  friends  ;md  col- 
leagues with  whom  it  is  my  pride  and  pleasure  to 
ociated  upon  this  floor.  It  is  well  known 
to  you  sir,  (Gen.  WARD  was  acting  as  President,) 
that  1  was  an  early,  zealous  and  decided  advocate 
of  the  canal  policy  which  has  immortalized  the 
name  of  CLINTON,  and  that  I  was  a  warm  perso- 
nal and  political  friend  of  that  distinguished  and 
illustrious  statesman,  who  has  left  the  impress  of 
Ins  great  mind  on  our  public  works,  and  to  whose 
splendid  genius  and  extraordinary  sagacity  these 
public  works  will  ever  be  an  enduring  and  im- 
perishable monument.  It  is  due  to  myself  to 
state  that  I  have  always  held  that  the  true  policy 
of  the  people  of  this  state  was  to  direct  their  en- 
lightened energies  to  the  enlargement  and  com- 
pletion of  the  Erie  and  Champlain  canals,  as 
great  state  works,  upon  a  scale  commensurate 
with  our  growing  wants  and  our  extended 
commerce ;  and  to  leave  the  construction  of  lat- 
eral canals  to  local  efforts  and  individual  enter- 
prise. All  the  errors  that  have  arisen,  arid  the 
financial  difficulties  we  have  encountered,  as  well 
as  the  largest  part  of  the  debt  we  have  contracted, 
have,  in  my  humble  judgment,  been  occasioned  by 
a  departure  from  that  wise  system  of  legislation. 
But  notwithstanding  I  have  entertained  these 
views,  which  time  and  experience  have  only  serv- 
ed to  confirm,  yet  1  arn  fiee  to  confers  that  as  the 
legislature  has  thought  proper  'o  pursue  a  differ- 
ent course  of  policy,  I  do  not  deem  this  an  open 
question  ;  anc'  rheiefore  consider  it  to  be  our  duty 
to  complete  tr.e  unfinished  canals  of  ihe  state, 
namely,  \\  a  Genesee  Valley  and  Black  River  ca- 
nals, and  to  complete  the  enlargement  of  the  Erie 
canal,  according  to  the  plans  oi  the  Canal  Com- 
missioners— Irom  tune  to  time,  and  as  circum- 
stances will  permit.  In  that  dark  and  gloomy  era 
of  our  financial  history  in  1S42,  when  the  state 
credit  was  impaired  and  the  state  resources  ex- 
hausted, I  eniiiely  concurred  in  the  suspension  cf 
the  public  improvements,  and  I  he  efforts  made  to 
sustain  Ihe  public  credit,  and  in  what  has  been 
usually  denominated  th«  policy  of  1842.  The  ob- 
ligations then  entered  into,  whether  expressed  or 
implied,  I  desire  to  carry  out  according  to  their 
fair  import  I  arn  willing  to  make  ample  provi- 
sion for  the  discharge  of  the  principal  and  inter- 
est of  the  canal  debt,  by  a  sinking  fund,  which 
will,  besides  paying  the  annual  interest,  redeem 
the  principal  of  that  debt  in  twenty-two  or  twen- 
ty-three years.1  In  the  same  spirit,  I  propose  to 
make  an  appropriation  to  cover  the  interest  due 
to  the  public  creditors  and  chargeable  on  the  ge- 
neral fund.  I  regret  that  I  have  not  been  able  to 
give  my  support  to  the  aiticie  reported  by  my  ho- 
norable and  learned  friend  from  Heikimer  (Mr. 
HOFFMAN,)  the  chairman  of  the  committee  on 
finance,  because  it  does  not,  in  my  opinion,  make 
a  sufficient  provision  for  the  prosecution  of  the 
enlargement  of"  the  Erie  canal,  which  1  tn-heve  is 
demanded  by  a  due  regard  to  the  wishes  of  the 
people  and  the  prospeiiiy  of  the  state.  But  I  de- 
sire to  support  the  proposition  of  my  distinguish- 
ed friend  from  Schoharie,  (Mr.  BOUCK:,)  if  I  can 
prevail  upon  him,  before  I  resume  my  seat,  to  in- 


crease  the  annual  appropriation  proposed  in  ((his 
arrangement  from  $1,225,000  to  $1,300,000  in 
order  to  discharge  the  principal  and  interest 
of  the  canal  debt  proper,  and  with  this 
change,  I  have  the  best  reason  to  believe 
his  proposition  would  be  sanctioned  by  the 
judgment  of  the  Convention.  I  have  no  hesita- 
tion in  saying  it  will  receive  my  feeble  support. 
The  deep  and  abiding  interest  which  my  constit- 
uents take  in  the  speedy  enlargement  of  the  Erie 
canal — the  vast  commerce  which  it  bears  upon 
its  surface — the  opulence  and  wealth  of  which 
the  metropolis  of  the  state  and  of  the  Union  has 
been  the  recipient — leaves  me  no  alternative  but 
to  declare,  that  I  cannot  vote  for  any  constitution- 
al provision  which  does  not  make  suitable  and 
ample  appropriations  for  the  enlargement  of  the 
Erie  canal  and  the  completion  of  the  unfinished 
canals,  with  the  least  practicable  delay  consistent 
with  a  sacred  regard  to  our  pecuniary  obligations 
and  to  our  plighted  faith.  The  income  of  this 
great  state  work,  for  the  past  year,  has  been 
nearly  $2,700,000.  Notwithstanding  a  reduction 
by  the  Canal  Board  of  more  than  thirteen  per 
cent,  upon  the  tolls  of  the  preceding  year,  there 
is  an  income  over  the  income  of  that  year,  of 
more  than  $130,000 — proving  beyond  all  contro- 
versy, that  as  you  cheapen  the  expense,  you  in- 
crease the  amount  of  transportation,  and  that 
common  justice  and  public  policy  unite  in  urging 
us  to  make  every  effort  to  enlarge  the  canal,  and 
reduce  the  tolls,  and  thus  in  a  much  greater 
ratio,  increase  the  quantity  of  produce  and  mer- 
chandise brought  to,  and  shipped  from,  the  city 
of  New  York  to  the  Queen  city  of  the  west. — 
That  Emporium  of  Lake  Erie,  with  its  navigable 
shores  of  more  than  eight  thousand  miles  on  our 
majestic  inland  seas — paid  into  your  treasury  for 
tolls,  nearly  $500,000  the  past,  year,  and  with  a 
continuous  navigation  of  more  than  nineteen 
hundred  miles  on  the  Father  of  Rivers,  and  its 
tributary  streams  in  the  Great  Valley  of  the  Mis- 
sissippi— bids  fair  to  rival  on  the  west,  that  proud 
city  on  the  east,  which  I  have  the  honor  in  part 
to  represent  in  this  Convention.  I  have  every 
reason  to  believe  that  at  this  moment  the  com- 
merce of  our  canals  exceeds  in  value  our  foreign 
imports  and  exports  united,  and  that  commerce 
is  advancing  and  extending  with  a  rapidity  that 
has  no  parallel  in  commercial  history  in  either 
the  eastern  or  western  hemispheres. 

Mr.  KIRKLAND  said  if  gentlemen  on  this 
floor  voted  according  to  their  speeches,  there 
was  no  doubt  but  the  proposition  of  Mr.  BOUCK 
would  be  adopted  by  a  very  large  majority,  and 
indeed  one  much  more  favorable  to  the  prosecu- 
tion of  the  public  works.  Gentlemen  had  avow- 
ed their  action  to  be  governed  by  the  act  of  is  [•_>, 
and  its  policy.  That  act  required  the  payment 
of  the  debt  only  within  about  thirty  years,  and 
not  a  word  of  that  act  required  that  debt  to  be 
paid  in  twenty-two  and  an  half  years.  It  provided 
thatthe  debt  should  be  paid  by  a  sinking  fund 
to  be  equal  to  one-third  of  the  interest  of  the  debt 
remaining  due  at  the  close  of  every  fiscal  year, 
after  paying  the  interest,  lie  had  produced  in 
his  previous  speech  a  mathematical  calculation 
that  this  would  not  pay  the  debt  before  1871. — 
This  could  not  be  answered  ;  it  was  true  whatev- 
er gentlemen  might  assert.  Assuming  that  the 


926 


gentleman  of  Herkimer  was  the  author  of  that 
act,  would  a  man  of  his  well  known  knowledge  of 
language  who  had  the  intention  of  fixing  a  speci- 
fic time,  have  used  such  a  miserable  circum- 
locution. The  exact  amount  of  the  debt  was 
just  as  well  known  then  as  now.  Rather  than 
take  such  a  course,  the  gentleman  and  the  legis- 
lature who  passed  that  act,  if  they  intended  that 
the  debt  should  be  paid  in  twenty-two  and  an 
half  years,  they  would  have  specifically  set  apart 
the  sum  of  $375,999.  He  insisted  that  the  Comp- 
troller in  his  report  of '45,  and  the  commissioners 
of  the  canal  fund,  for  the  same  year,  sustained  the 
construction  which  he  (Mr.  K.)  gave  to  this  act. 
Therefore  he  insisted,  this  proved  that  gentlemen 
would  vote  for  Mr.  BOUCK'S  proposition  if  they 
seriously  meant  to  adhere  to  their  principles  as 
avowed  here.  He  stood  here  as  an  advocate  of 
the  act  of  1842,  and  he  should  vote  for  the  amend- 
ment because  ft  provided  for  the  extinguishment 
of  the  debt  in  even  a  less  period  than  did  that 
act.  In  reference  to  the  debt  alleged  to  be  due 
from  the  canals  to  the  general  fund,  the  amend- 
ment provided  for  the  payment  of  $522,000  an- 
nually, forever.  That  was  a  trifle  short  of  the 
interest  on  the  debt  due  as  claimed  by  gentlemen 
from  the  one  fund  to  the  other.  Gentlemen  had 
expressed  themselves  that  they  would  be  satisfied 
if  provision  was  made  for  the  interest  on  this  debt 
to  the  general  fund,  and  he  now  called  upon  them 
to  support  this  amendment. 

Mr.  BRUNDAGE  had  not  intended  to  say  a  word 
on  this  subject.  He  I'elt  that  it  was  far  above  his 
powers — but  found  himseli  placed  in  a  situation 
where  he  would  probably  be  compelled  to  vote 
against  the  dictates  ot  his  own  judgment,  and  in 
violation  ot  the  well  known  and  clearly  express 
ed  will  of  his  constituents  j  under  such  circum- 
stances he  ielt  that  it  was  due  to  himself,  as  well 
as  to  them,  and  a  proper  respect  tor  their  wishes, 
that  he  should  briefly  define  his  own  position,  and 
explain  the  reasons  that  would  dictate  the  vote  he 
should  probably  give.  The  State  debt  was  no 
new  subject  of  consideration  with  him.  He  had 
watched  i\s  progress  and  increase  Irom  year  to  year 
for  several  years,  prior  to  1842,  with  the  most 
anxious  solicitude,  and  was  gratified  when  its  pro- 
gress was  arrested  by  the  wise  and  prudent  legis- 
lation ot  that  year ;  from  that  time  forward  he  had 
anxiously  desired  to  see  that  debt  paid  off  at  the 
earliest  possible  period,  he  therefore  came  here 
prepared  to  vote  for  a  constitutional  enactment, 
that  alter  defraying  the  expenses  of  government 
and  the  necessary  cost  of  repairs  and  superintend- 
ence of  the  canals,  the  whole  revenue  of  the  state 
snould  be  applied  to  the  payment  of  that  debt; 
and  if  that  was  not  sufficient  to  cancel  it  in  18  or 
9.0  years,  the  Legislature  should  accomplish  it  in 
that  time  by  taxation.  He  was  therefore  gratified 
when  the  financial  repot t  was  made,  but  there 
was  a  feature  in  that  report  that  somewhat  dimin- 
ished his  gratification — it  was  that  feature  which 
appropriated  two  and  a  half  -millions  to  the  Erie 
canal  enlargement— (of  which  a  word  hereafter.) 
He  would  first  look  at  the  position  in  which  the 
matter  stands.  Gentlemen  have  expended  much 
time  in  the  investigation  of  thevorigin,  history  and 
progress  of  the  state  debt.  Now,  he  w*s  really  at 
a  loss  to  see  the  relevancy  of  this  matter  to  the 
question  before  them,  which  in  his  judgment  was 


narrowed  down  to  three  simple  inquiries: — First, 
what  is  the  amount  of  the  state  debt?  Second, 
what  is  the  resouices  of  the  slate  to  pay  that  debt? 
and  third,  how  shall  these  resources  be  most  pru- 
dently and  economically  applied?  No  matter 
when  this  debt  was  originated — no  matter  by  whom 
it  was  oriignated,  or  tor  what  purpose — the  ques- 
tion is  how  shall  it  be  paid.  The  amount  of  the 
state  debt  has  been  stated,  and  is  admitted  to  be 
from  twenty-two  to  twenty-three  millions  ot  dol- 
lars, on  which  we  are  annually  paying  the  round 
sum  of  one  and  a  quarter  millions  in  the  nature  of 
interest;  in  four  years  we  should  pay  five  millions 
of  interest,  a  sum  sufficient  to  complete  the  Ge- 
nesee  Valley  and  Black  River  canals  ;  postpone 
the  payment  twenty  years,  and  we  pay  twenty- 
five  millions  of  interest ;  a  sum  sufficient  to  com- 
plete the  Genesee  Valley  and  Black  River  canals, 
the  Erie  canal  enlargement,  and  construct  the 
Erie  Railroad  This  is  no  visionary  dream,  but  a 
stubborn  reality,  that  figures  will  demonstrate  be- 
yond the  power  of  contradiction.  I*,  was  not  ne- 
cessary then  to  go  into  the  history  ot  the  origin 
and  progress  of  this  debt.  The  simple  question 
is,  how  shall  we  pay  it  ?  That  was  the  object  to 
which  they  should  direct  their  attention.  Can 
gentlemen  sleep  on  such  a' subject — for  himself, 
he  would  never  slumber  a  night  over  such  a  debt 
if  he  could  avoid  it.  He  would  apply  the  sponge 
to  the  last  dollar,  at  the  earliest  possible  period. 
He  was  aware  that  gentlemen  who  belonged  to 
certain  localities,  might  complain  that  they  suffer 
in  consequence  of  delay  in  the  completion  of  their 
improvements,  but.  he  would  ask  those  gentlemen 
if  there  weie  not  other  localities  that  had  equally 
suffered?  He  asked  them  it  they  could  not  wait 
till  this  debt  was  cancelled,  and  the  resources  of 
the  state  were  at  liberty  to  accomplish  these  ob- 
jects without  embarrassment.  He,  too,  in  com- 
mon with  all  the  friends  of  the  Erie  Railroad, 
knew  what  it  was  to  suffer  under  the  influence  of 
hope  deferred,  not  only  till  their  hearts  had  sick- 
ened, but  till  their  spirits  had  fainted,  and  they 
had  abandoned  their  object  in  despair ;  he  had'al- 
ways  felt  the  force  of  a  remark  made  by  an  old 
farmer  who  once  came  to  pay  him  a  debt — he  ex- 
pressed regret  that  the  farmer  had  put  himself  to 
the  trouble  to  call  purposely  :  his  reply  was,  that 
he  knew  no  better  time  to  pay  a  debt  than  when 
he  had  the  means.  So  in  this  case,  we  now  know 
we  have  the  means  to  pay  this  debt,  and  common 
honesty,j  and  prudence  dictated  that  we  should  do 
so,  and  after  the  debts  were  paid,  the  improve- 
ments,desired  could  be  accomplished  ;  besides  it 
the  anticipations  of  gentlemen  of  a  continued  and 
progressive  increase  of  canal  revenues  were  reali- 
zed, there  would  after  complying  with  the  re- 
quirements of  the  report,  be  surplus  revenues  suf- 
ficient to  complete  these  works  in  a  reasonable 
time ;  but  what  a  predicament  would  they  be  in  ii 
estimates  gentlemen  had  urged  upon  them  should 
be  found  to  be  based  on  mistaken  calculations? 
If  these  revenues  did  continue  to  increase,  so 
much  the  belter  for  i hem— if  'hey  did  not,  or 
should  decrease,  still  we  should  be  safe.  If  there 
was  danger  it  should  be  looked  to  and  guarded 
against.  They  must  bear  in  mind  that  the  Erie 
Railroad  would  soon  be  completed,  and  that  would 
draw  some  commerce  irom  the  canal. 
Mr.  BRAYTON  thought  not. 


927 


Mr.  BRUNDAGE.     It  certainly  will. 

Mr.  BRAYTON  doubled  it. 

Mr.  BRUNDAGE.  You  and  I  may  differ  on 
this  subject,  but  this  does  not  prove  either  ot  us 
right.  Then,  again,  our  Boston  friends  will  con- 
struct a  road  to  the  St.  Lawrence,  and  the  ques- 
tion was  whether  they  would  not  obtain  produce 
cheaper  by  that  medium  than  by  the  Erie  canal? 
If  so,  that  also  would  draw  from  us  some  com- 
merce, and  it  was  not  impossible  thaMhe  opening 
of  the  ports  cf  England  to  American  breadstuff's 
may  divert  a  portion  of  produce  down  the  Si.  Law- 
rence via  Quebec,  and  thus*  more  commerce  may 
be  taken  from  us.  The  gentleman  from  Chau- 
tauque  (Mr.  MARVIN)  has  himselt  furnished  a 
strong  argument  in  favor  of  the  probable  diminu- 
tion of  transportation  through  this  canal.  That 
gentleman  stated  by  way  ot  anecdote,  as  a  matter 
within  his  own  knowledge,  that  he;«vy  articles, 
sugar  and  molasses  had  been  transported  up  the 
Western  rivers  against  the  streams,  with  an  addi- 
tion of  ninety  miles  land  carriage,  and  sold  lower 
than  the  New  York  merchant  could  offer  them  at 
the  same  point.  If  that  were  so,  what  would  be 
the  result  when  that  ninety  miles  of  land  carriage 
was  annihilated,  or  transit  over  it  facilitated.  But 
sir,  on  this  subject  I  will  not  employ  the  time  of 
the  Convention.  The  gentleman  from  Herkimer 
has  "disposed  of  it  so  much  better  than  I  could, 
that  it  would  be  a  kind  of  sacrilege  for  me  to  at- 
tempt to  travel  over  the  same  ground.  He  could 
readily  excuse  those  gentlemen  who  urged  us  to 
delay  the  payment  of  the  debt  on  the  ground  of 
local  interest,  connected  with  a  desire  to  finish 
the  local  improvements.  For  Pope  had  said  self- 
interest  was  man's  ruling  passion,  and  the  Scotch 
poet  had  said  with  equal  truth — 

"If  self  the  wavering  balance  shakes 
3  Tis  rarely  right  adjusted." 

Now  as  he  spoke  from  recollection,  without  pre- 
paration or  reflection,  and  had  resided  out  of  the 
state  from  1816  to  '25,  while  the  Erie  canal  was 
in  progress  of  construction,  he  might  not  be  strict- 
ly correct  in  the  statement  he  was  about  to  make, 
but  he  believed  he  was  not  far  astray.  If  he  un- 
derstood the  matter  right,  at  the  time  of  the  com- 
mencement of  the  Erie  canal  in  1817,  the  State 
was  in  possession  of  a  respectable  general  fund, 
the  common  property  of  all.  There  was  also  a 
revenue  from  auction  and  salt  duties,  which  the 
gentleman  from  Herkimer  (Mr.  HOFFMAN,)  and 
the  gentleman  from  Chautauque  (Mr.  MARVIN,) 
seemed  to  think  were  local  taxes.  He  differed 
from  both  those  gentlemen,  and  was  not  bound  to 
follow  the  Admiral  or  the  General,  or  any  subal- 
tern officer,  when  their  positions  were  erroneous 
ly  taken.  These  auction  duties  like  tariff  duties, 
fall  on  the  consumer,  and  were  the  property  ol 
all,  and  could  not  belong  to  any  isolated  part  or 
section  of  the  state.  The  salt  springs  and  lands 
belonged  to  the  whole  state,  and  the  state  had  a 
right  to  a  revenue  from  them.  All  these  resour- 
ces, the  property  of  the  whole  state  being  absorb- 
ed in  the  construction  of  these  canals,  and  tre- 
bling the  value  of  property  along  the  line  of  their 
location,  while  other  sections  were  not  only  nol 
benefittcd,  but  in  some  instances  actually  injured 
by  their  inability  to  compete  with  the  more  favor- 
ed, locations  on  the  line  of  the  canal.  Does  not 
justice  require  that  the  debt  incurred  in  construct- 


ng  these  improvements  should  be  cancelled  from 
their  revenue,  while  we  know  it  is  sufficient,  and 
not  subject  us  to  the  hazard  of  taxation  in  case  of 
a  failure  of  revenue.  He  had  the  less  sympathy 
for  these  gentlemen  on  the  account  of  local  inter- 
est, because  he  thought  the  canals,  for  the  com- 
pletion of  which  they  were  the  advocates,  were 
unwisely  undertaken,  and  only  concurred  in  by 
the  friends  of  the  Erie  canal  to  defeat  the  con- 
ruction  of  the  Erie  Railroad, — from  a  feeling  of 
ordid  and  illiberal  jealousy,  lest  that  road  should 
interfere  with  the  monopoly  of  transportation  and 
travel  on  the  line  of  this  favored  locality.  But  a 
"  arge  amount  of  the  expense  of  constructing  these 
canals  had  been  incurred,  and  must  be  irretrieva- 
bly lost  if  they  were  not  completed,  and  it  was 
probable  that  although  they  would  never  pay  the 
interest  of  their  cost,  with  the  expense  of  repair 
and  superintendence,  yet  they  would  more  than 
keep  themselves  in  repair,  and  pay  the  interest  of 
the  sum  required  to  complete  them,  and  there- 
fore it  was  economy  and  good  policy,  and  he  was 
willing  to  complete  them  as  soon  as  the  revenues 
of  the  state  would  admit,  but  was  not  willing  to 
postpone  the  payment  of  the  debt  for  that  pur- 
pose. He  should  therefore  vote  for  the  amend- 
ment of  the  gentleman  from  Herkimer  (Mr. 
LOOMIS.)  [Here  the  Speaker's  hammer  announ- 
ced the  expiration  of  his  fifteen  minutes,  but  he 
finished  the  sentence  thus  not  in  a  spirit  of  con- 
cession but  from  dire  necessity.] 

Mr.  NICOLL,  in  view  of  the  fact  that  all  these 
votes  were  to  be  taken  before  4  o'clock,  moved 
the  previous  question  on  the  proposition  imme- 
diately pending,  including  all  amendments  to 
the  first  section. 

Mr.  BASCOM  asked  for  the  ayes  and  noes  on 
seconding  the  call  for  the  previous  question,  and 
there  were  ayes  58,  nays  55.  So  the  call  was 
not  seconded. 

Mr.  VAN  SCHOONHOVEN  said  it  was  now 
pretty  evident  the  proposition  of  Mr.  HOFFMAN 
would  not  now  meet  the  approbation  of  the 
House.  The  question  was  therefore  as  between 
the  proposition  of  Mr.  LOOMIS  and  Mr.  BOUCK. — 
Mr.  V  S.  went  on  to  express  himself  in  favor  of 
that  of  Mr.  B.,  and  as  opposed  to  that  of  Mr.  L. 

Mr.  CHAMBERLAIN  wished  to  call  the  at- 
tention of  the  Convention  to  the  professions  of 
gentlemen  as  compared  with  their  practice. 

Mr.  HARRIS  had  hitherto  listened  in  silence, 
but  not  without  deep  interest,  to  this  debate.  He 
felt  now  constrained  to  say  a  word  before  this 
question  was  disposed  of,  although,  after  the  con- 
summate ability  displayed  in  this  debate,  he 
could  not  hope  to  convince  a  single  gentleman. 
His  object  was  to  second  the  patriotic  appeal 
made  by  Mr.  BOUCK.  He  desired  that  the 
Convention  should  unite,  and  not  decide 
this  question  by  a  mere  party  vote.  Up- 
on the  main  principles  of  this  question  all 
agree — in  the  payment  certain  of  the  debt — from 
the  revenues  of  our  internal  works,  and  all  profess 
to  agree  that  the  public  works  should  be  comple- 
ted, although  the  policy  ot  certain  gentlemen 
seemed  to  postpone  their  completion  until  an  in- 
definite period.  He  believed  that  a  sound  policy 
would  best  be  promoted  by  their  speedy  comple- 
tion. The  gentleman  from  Herkimer  with  his 
mind  dwelling  so  long  upon  a  favorite  theory,  had 


928 


taken  the  remarkable  position  that  after  ten  years 
the  revenues  were  to  decline.  He  could  conceive 
not  even  the  remotest  probability  of  such  an  event. 
Mr.  H.  referred  to  the  hitherto  unprecedented 
growth  of  the  West  as  evidence  of  the  fact  that  it 
was  to  go  on  increasing  and  magnifying  beyond 
the  conception  of  any  man  here.  These  people 
must  find  their  channel  to  the  Atlantic  and  to  Eu- 
rope through  this  state.  Hence  the  importance 
of  the  speedy  completion  of  these  great  works.— 
They  would  be  to  our  state  what  the  fabled  river 
of  Pactolus  whose  stream  turned  to  gold  at  the 
touch  of  Midas,  was  to  Crresus.  Mr.  H.  urged 
that  there  should  be  a  compromise,  which  he  con- 
sidered to  be  offered  in  the  amendment  of  Mr. 
BOUCK.  We  could  then  present  the  sublime 
spectacle  of  our  people  coming  together  on  this 
great  and  vexed  question  of  internal  improve- 
ment. This  was  all  that  the  friends  of  these 
works  could  concede,  and  he  urged  that  it  affor- 
ded a  fair  basis  for  a  common  meeting. 

Mr  LOUMIS  was  unwilling  to  sum  up  the  ar- 
guments adduced  by  the  four  or  five  last  speeches, 
but  should  attempt  it.  The  gentleman  from  Onei- 
da  (Mr.  KIRKLAND,)  proposed  to  give  a  construc- 
tion to  the  act  of  1842,  which  Mr.  L.  denied  was 
a  lair  one.  The  debt  was  increased  by  the  amount 
due  to  contractors,  and  could  not  be  accurately 
ascertained  ;  but  the  act  provided  that  when  this 
was  ascertained,  that  then  a  sum  equal  to  one 
third  of  the  annual  interest  of  the  debt  remain- 
ed due.  This  was  the  only  fair  construction  that 
could  be  given  to  the  act.  The  construction  given 
it  by  the  gentleman  from  Oneida,  would  never 
pay  off  the  debt — it  was  an  absurdity.  The  debt 
could  not  be  ascertained,  and  that  was  the  reason 
the  amount  was  not  specifically  stated.  As  to 
the  declaration  of  the  gentleman  from  Oneida, 
therefore,  that  he  was  in  favor  of  paying  the  debt, 
under  his  construction  of  the  act  of  '42,  it  fell  to 
the  ground — it  would  never  pay  the  debt.  Gentle, 
men  had  called  for  a  redemption  of  the  pledges  lo 
complete  these  works.  Pledges  to  whom  ?  there 
was  none  about  it — it  was  a  mere  legislative  en- 
actment  for  public  policy.  Pledged  to  whom? 
to  themselves  ?  The  only  pledge  made,  was  to 
pay  the  debt ;  it  was  idle  to  talk  about  pledges  ot 
this  description.  The  power  that  enacted  the  law 
could  repeal  it-  The  gentleman  from  Albany  had 
said  that  all  agreed  to  pay  the  debt,  and  all  prefer- 
red to  favor  the  completion  oMhe  public  works. 
But  there  were  some  here  also,  who  professed  to 
prevent  future  taxation.  There  was  the  differ- 
ence. The  legislature,  if  left  to  appropriate  this 
money,  would  always  be  liberal  towards  these 
works. 

Mr.  STOW  said  that,  put  any  possible  construc- 
tion on  the  act  ot  1842,  it  was  at  best,  but  a  mort- 
gage. If  it  failed  to  secure  the  entire  bond,  that 
was  the  fault  of  its  drawers.  If  this  act  was  to  be 
incorporated  into  the  Constitution,  then  he  insist- 
ed upon  its  construction  to  its  very  letter.  He  in- 
sisted that  there  was  an  implied  faith,  and  sub- 
stantially a  pledge  given  to  the  people  on  the  late, 
ral  canals,  that  these  works  should  be  completed. 
The  legislature  could  change  the  locality  of  the 
public  works,  and  the  route  of  the  Erie  canal, 
but  that  no  one  denied  would  be  a  direct  violation 
of  implied  public  faith.  He  would  not  leave  this 
matter  to  the  Legislature,  for  then  the  just  claims 


of  the  canals  might  be  defeated.  This  was  a  pro. 
position  for  compromise,  and  if  adopted,  he  urged, 
would  place  thi?  great  question  of  our  public 
works  above  the  mere  conflicts  of  party.  As  to 
supporting  the  expenses  of  government  from 
these  canals — it  was  not  the  policy  of  our  govern- 
ment to  support  itself  by  indirect  "taxation.  Such 
a  system  would  not  secure  us  an  economical  and 
frugal  administration.  He  appealed  to  gentlemen 
from  the  eastern  part  of  the  State  to  come  forward 
and  meet  the  people  of  the  west  in  the  same  spi- 
rit of  magnanimity  on  this  subject  of  internal  im- 
provement that  actuated  them  in  1817. 

Mr.  TILDEN  replied  to  gentlemen  on  the  sub- 
ject of  the  construction  to  be  given  to  the  act  of 
1842.  It  was  an  extraordinary  spectacle  to  find  that 
gentlemen  originally  opposed  to  that  act  were  de- 
termined that  their  construction  should  be  adopted 
in  preference  lo  that  given  it  by  i!s  authors  and 
supporters.  He  characterized  the  construction 
given  it  by  Mr.  KIRKLAND  as  a  narrow,  technical 
one. 

Mr.  KIRKLAND  insisted  that  the  commission- 
ers of  the  canal  fund  and  the  comptroller,  in  1845, 
had  given  it  the  same  construction. 

Mr.  TILDEN  replied  that  if  he  conceded 
that  they  did,  he  would  not  concede  that  to 
be  a  reason  why  this  Conrention  should  adopt 
the  same  error.  He  expressed  his  surprise 
that  the  gentleman  should  adopt  a  construction 
purely  technical,  and  so  confessedly  against 
the  contemporaneous  construction  given  it,  in  or- 
der to  serve  his  local  purposes.  When  this  con. 
struction  was  first  attempted  to  be  established,  the 
Legislature,  by  the  explanatory  act  of  1844, 
placed  the  true  construction  beyond  a  doubt.  It 
was  reserved  for  those  who  were  hostile  to  the 
measure  and  the  policy,  to  attempt  to  avail  them- 
selves  of  an  error  of  mere  phraseology,  which 
they  alledge  to  have  been  committed,  in 
order  to  postpone  the  payment  of  the  debt.  Mr. 
T.  further  replied  to  Mr.  S.,  expressing  his  con- 
currence in  the  sentiments  set  forth  by  that  gen- 
tleman on  the  subject  of  supporting  government 
wholly  by  indirect  taxation. 

Mr.  STETSON  asked  why  we  should  not  com- 
promise ?  The  country  should  hear  and  decide 
this  question.  Was  it  the  mere  sum  of  $75,000 
the  difference  between  the  two  propositions  that 
prevented  it  ?  No,  it  was  this — the  proposition 
of  Mr.  LOOMIS'  was  one  of  compromise,  but  in- 
stead of  meeting  this,  they  brought  in  another 
proposition,  asking  us  to  violate  the  plighted 
faith  of  the  state  that  the  debt  should  be  paid  in 
twenty-two  and  a  half  years.  Admitting  that 
there  were  two  pledges  here,  one  to  pay  the  debt, 
and  another  to  complete  the  works— which  should 
be  fulfilled  first  ?  The  one  was  the  promise  of 
the  man  who  made  his  note  to  himself  that  he 
would  buy  himself  a  new  carriage  or  build  new 
barns — the  other  the  promise  to  the  creditor. — 
Which  should  be  performed  first  ?  The  appeal 
of  gentlemen  was  to  compromise  the  pledge  to 
the  creditor — he  preferred  to  compromise  the 
pledge  to  ourselves,  to  the  people  of  localities. — 
That  was  the  difference  involved  in  this  matter. 
Mr.  S.  repelled  the  construction  sought  to  be  giv- 
en to  the  act  of  1S42,  as  the  argument  of  a  law- 
yer before  a  justices  court,  put  forth  here  to  in- 
duce the  sacrifice  of  a  solemn  pledge  to  the  pub- 


929 


lie  creditor.     He  was  in  favor  of  a  system  to  pay 

up,  and  go  on  and   complete   these  works.     The 

difference  between  him  and  gentlemen,  was  that 

reversed  the  order   and   placed  the  item  of 

nditure  first  in  order.     This  was  the  reason 

why  we  could  not  compromise  as  asked  for  by  the 

gentleman  from  Schoharie. 

Mr.  MARVIN  replied  to  Mr.  TILDEN,  denying 
that  his  proposition  left  this  matter  of  appropria- 
tion entirely  to  the  legislature.  His  amendment 
of  the  other  day,  he  insisted,  was  directly  to  the 
contrary,  and  it  would  have  been  carried  had  not 
the  amendment  of  Mr.  STOW  been  offered. 

Mr.  BRUCE  thought  that  the  gentleman  from 
Onondaga  had  exhibited  a  great  deal  of  unneces- 
sary warmth  on  being  charged  that  he  was  hos- 
tile to  internal  improvement.  The  gentleman 
had  nearly  run  off  the  track  in  his  zeal  and  he 
really  thought  would  have  exploded,  but  for  the 
application  of  the  safety  valve  to  him  by  the  gen- 
tleman from  Chautauque,  who  in  so  doing  got  his 
own  eyes  filled  with  steam.  But  he  asked  that 
gentleman  to  point  to  the  provision  in  the  propo- 
sition he  advocated  that  made  the  slightest  pro- 
vision for  the  prosecution  of  our  canal  policy. 
The  proposition  which  the  gentleman  sustained 
would  effectually  arrest  that  policy.  That  of 
Mr.  HOFFMAN  did  not  propose  to  apply  a  dollar 
to  the  enlargement.  On  the  contrary,  that  gen- 
tleman proposes  that  the  canal  might  be  improved 
and  answer  all  purposes  until  the  tolls  began  to 
culminate.  Not  only  did  that  gentleman  repudi- 
ate the  enlargement,  but  he  denounced  the  pro- 
ject of  the  Erie  canal  as  incestuous.  He  called 
on  Mr.  TAYLOR  to  come  out  and  define  his  posi- 
tion. If  really  friendly  to  the  canal  policy,  le- 
him  come  up  to  the  support  of  Mr.  BOUCK'S  prot 
position  which  secured  something  for  internal 
improvement.  The  gentleman  from  Herkimer 
(Mr.  HOFFMAN)  said  it  was  perfect  nonsense  to 
talk  about  the  faith  of  the  state  being  pledged  in 
1835  to  the  enlargement.  And  yet,  he  contend- 
ed, that  it  was  pledged  by  the  law  of  1842.  Mr. 
B.  would  be  glad  to  know  why  the  faith  of  the 
state  was  not  as  strongly  pledged  by  the  one  act 
as  the  other  !  By  the  proposition  of  Mr.  BOUCK 
we  could  fulfil  them  both.  This  was  the  great 
question,  and  he  was  rejoiced  to  see  that  the  gen- 
tleman from  Clinton,  who  was  the  first  man  to 
spring  the  party  rattle  here— had  found  himself 
in  the  position  of  the  prophets  of  Baal  when  they 
undertook  to  invoke  their  God.  The  gentleman 
had  invoked  the  spirit  of  party  and  had  found  the 
party  missing.  Mr.  B.  urged  that  the  great  state 
of  New  York  was  able  to  go  on  and  complete  the 
works  which  she  ordained  in  1835  should  be  com- 
pleted—and  that  instead  of  paying  off  every  dol- 
lar of  debt,  before  proceeding  with  these  works, 
would  be  doing  injustice  to  ourselves,  to  the  state, 
and  he  might  add  to  posterity — for  they  would 
have  the  benefit  of  this  rich  legacy  that  we  should 
leave  them,  and  ought  to  pay  their  share  of  the 
expense.  • 

Mr.  RHOADES  sent  up  the  following  addition- 
al section : — 

^  — .  The  legislature  shall  never  sell  or  dispose  of  the 
salt  springs  belonging  to  this  state.  The  lands  contiguous 
thereto  and  which  may  be  necessary  and  convenient  lor 
the  use  of  the  salt  springs,  may  be  sold  by  authority  of 
law  and  under  the  direction  of  the  commissioners  of  the 
land  office,  for  the  purpose  of  investing  the  moneys  arising 

91 


therefrom  in  other  lands  alike  convenient,  but  by  such 
sale  and  purchase  the  aggregate  quantity  of  these  lands 
shall  not  be  diminished. 

Mr.  TILDEN  replied  briefly  to  Mr.  MARVIN, 
when 

Mr.  RICHMOND  obtained  the  floor,  and  the 
Convention  took  a  recess. 


AFTERNOON  SESSION. 

About  sixty  members  present  at  the  opening 
Mr.  RICHMOND  said  that  from  the  present 
aspect  of  this  financial  question,  he  found  him- 
self compelled  to  choose  between  the  proposition 
of  the  gentleman  from  Herkimer,  (Mr.  LOOMIS,) 
and  that  of  the  gentleman  from  Schoharie,  (Mr. 
BOUCK.)  He  said  neither  of  these  propositions 
were  what  he  desired,  but  judging  from  what 
had  been  said  by  members  this  morning,  on  all 
sides  of  this  house,  he  was  satisfied  that  one  or 
the  other  of  these  plans  was  to  be  adopted  by 
this  body — such  being  the  case,  he  felt  bound  to 
support  the  proposition  of  the  gentleman  from 
Schoharie,  from  the  fact  that  it  was  the  least  ob- 
jectionable, although  it  was  far  from  being  what 
he  believed  was  right  and  just  in  the  matter. — 
That  gentleman's  plan  provides,  after  appropri- 
ating from  the  revenues  of  the  canals  a  sufficient 
sum  to  pay  the  interest  and  ultimately  the  prin- 
cipal of  the  canal  debt;  and  also  a  sum  to  pay 
all  the  other  debts  of  the  state  within  a  reasona- 
ble time,  including  the  debts  of  the  broken  down 
railroad  companies ;  also  lor  the  Clinton  county- 
prison  and  other  matters, — and  then  appropriates 
two  hundred  thousand  dollars  of  said  canal  fund 
each  year  towards  defraying  the  ordinary  ex- 
penses of  the  state  government.  Now,  he  be- 
lieved the  canals  were  under  no  obligation  to  pay 
these  railroad  and  other  debts,  but  that  after  pro- " 
vision  had  been  made  out  of  their  revenues  for 
paying  the  debts  for  their  construction  and  the 
interest  on  the  same,  the  residue  should  be  ap- 
plied to  the  completion  and  enlargement.  But 
it  had  been  determined  otherwise ;  and  he  should 
support  the  proposition  of  the  gentleman  from 
Schoharie,  because  it  provided  that  after  pro- 
viding for  all  these  debts,  the  surplus  revenues 
shall  be  applied  to  the  enlargement  of  the  Erie 
canal  and  the  completion  of  the  unfinished 
works.  He  believed  under  this  system,  (al- 
though a  hard  one)  the  enlargement  would 
ultimately  be  completed,  as  well  as  the  other 
unfinished  works — while  on  the  other  hand,  the 
proposition  of  the  gentleman  from  Herkimer  pro- 
vides that  after  providing  for  all  the  other  debts 
of  the  State,  as  well  as  the  canal  debts,  then  the 
residue  to  go  into  the  State  treasury,  to  be  ap- 
propriated in  such  manner  and  for  such  purposes 
as  the  legislature  shall  by  law  direct.  He  said, 
should  this  measure  prevail,  the  enlargement  , 
would  not  be  done  in  fifty  years,  as  these  sur- 
pluses being  at  the  control  of  the  legislature,  the  \ 
greater  portion  of  them  would  be  plundered  out 
by  the  lobbies  and  sharks  that  always  hover 
around  the  Capitol  whenever  there  is  plenty  of 
funds  to  be  appropriated,  as  in  this  case  ;  and  he 
would  hazard  the  opinion,  judging  from  what 
had  been  seen  in  former  years,  that  for  every  dol- 
lar the  canals  got  out  of  the  treasury,  these  gen- 
try would  get  at  least  three,  as  they  were  always 
in  the  habit  of  taking  the  lion's  share.  He  urged 
that  if  it  was  important  to  tie  up  tjje  legislature 


930 


to  the  payment  of  the  debt  in  a  given  time,  it  was 
equally  important  to  provide  by  constitutional 
provision  that  the  surpluses  should  go  to  the  im- 
provement of  our  canals. 

Mr.  NICHOLAS  said  as  his  first  and  only  ab- 
sence from  the  Convention  had   occurred  during 
this  debate,  he  should  not,  just  at  the  close  of  the 
discussion,  say  more  than   was  necessary  to  ex- 
plain the  considerations  which  would  induce  him 
to  vote  for  the  amendment  offered  by  the  gentle- 
man from  Schoharie,  (Mr.  BOUCK.)     It  involves 
two  important  objects,  a  provision  for  an  ample 
sinking  fund  from  the  canal  revenues  to  pay  the 
debt  of  the  state  within  a  reasonable  time,  and  in 
a  manner  that  will  be  acceptable  to  the  holders 
of  state  stocks,  and  satisfactory  to  the  people. — 
We  all  concur  in  the  opinion  that  such  a  provision 
should  be  made  secure  by  the  Constitution.    This 
amendment  also  requires  that  the  surplus  canal 
revenues,  after  paying  into  the   Treasury  a  sum 
that  he,  (Mr.  N.)  believes  will  be  sufficient  with 
the  salt  and  auction  duties  to  defray  the  current 
expenses  of  the  government,   shall  be  applied  to 
the  completion  of  the  unfinished  public  works. — 
The  prevailing  sentiment  in   this  body,   is  that 
these  works  should  be  finished  sooner  or  later, 
but    there    is  some    diversity     of    opinion    as 
to  the  expediency  of  thus  making  a  specific  con- 
stitutional    provision    for    their    completion. — 
In  regard  to  this  question   he   Mr.  N.  was  glad 
that  he  could  be  influenced  by  no  local  interests; 
he  stood  here  as  the  representative  of  the  whole 
state,  the   section  of  country  in  which   he  lived 
would  not  be  much  benefi tted  by  the  enlargement 
of  the  Erie  canal,  except  as  its  interests  are  iden- 
tified with  those  of  the  State  at  large.     As  to  fa- 
cilities for  intercourse  with  other  sections  of  the 
world  and  the  transportation  of  our  produce  to 
market,  the  country  in  the  vicinity  of  the  Erie  ca- 
nal  is  now  well  provided  for;  the  enlargement 
will  be  of  little  or  no  service  to  those  sections  of 
the  state.     In  1842,  when  in  the  Legislature,  he 
became  convinced  that  the  enlargement  of  the 
canal  would  reduce  the  cost  of  transportation  5C 
per  cent.;  and  when  this  reduction   takes  place, 
should  the  state  need  funds,  the  present  revenue 
may  be  increased  $600,000  by  increasing  the  tolls 
25  per  cent.,  and  the  cost  of  transportation  will 
be  still  25  per  cent  lower  than   at  present,   anc 
here  is  at  once  a  sum  more  than  sufficient  to  de- 
fray the  expenses  of  the  government.     He  was 
then,  opposed  to  an  abandonment  of  a  work,  upon 
which  we  have  expended  nearly  thirteen  millions 
of  dollars,  and  he  now  wished  by  the  Constitution 
to  require  that  this  great  work  shall   be  resumec 
and  progressed  with  as  fast  as  the  surplus  canal  re< 
yenue  will  warrant.  If  it  was  an  original  question 
whether  the  capacity  of  the  canal  should  or  no 
be  thus  enlarged  to  seven  by  seventy  feet — such  a 
work  might  be  considered  by  many  of  doubtfu" 
expediency;  but  when  the  work  is  so  far  advan 
ced,  after  such  a  heavy  expenditure  for  its  con 
struction,  with  a  constant  growth  of  its  business 
affording  certain   evidence   that  its  enlargemen 
will  soon  be  indispensable,  no  man  should  hesl 
tate  a  moment ;  the  work  will  be  done,  no  human 
power  can  prevent  its  completion. 

Let  the  state  therefore  direct  its  energies  an 
surplus  means  at  once  to  this  great  object,  which 
when  completed  will  be  an  enduring  monumen 


>f  its  enterprise  and  resources.  The  original 
section  as  reported  by  the  committee,  directs  the 
urplus  revenue  to  be  applied  to  the  improvement 
)f  the  Erie  canal,  and  this  improvement  he  Mr. 
N.  understands  to  be  chiefly,  as  it  was  explained 
by  the  gentleman  from  Herkimer,Mr.  HOFFMAN, 
he  raising  the  banks  of  the  old  canal  and  length- 
ening its  locks  ;  the  result  of  this  kind  of  improve- 
nent  would  be  that  an  army  of  repairers  must  be 
employed  for  several  years  to  make  temporary 
-epairs  at  great  cost— and  this  unfinished  work 
ivill  then  be  resumed  and  finished  at  an  expense 
unnecessarily  great,  owing  to  delay  and  conse- 
quent dilapidation.  Gentlemen  were  afraid  we 
should  transmit  a  heavy  debt  to  our  successors,. 
;he  next  generation  of  citizens,  by  this  provision. 
He  Mr.  N.  believed  instead  of  producing,  it  would 
3revent  this  result ;  it  will  prevent  the  means  of 
the  state  being  frittered  away  upon  local  or  mi- 
nor and  unimportant  objects,  it  will  put 
AI\  end  to  heavy  expenditures  of  money  lor 
such  an  improvement  of  the  canal  as  will  only 
answer  a  temporary  purpose — it  will  concentrate 
all  the  energies  of  the  state  for  the  early,  easy, 
convenient,  and  thorough  completion  of  ihe  great- 
est work  in  the  world — the  best  source  of  revenue 
that  was  ever  possessed  by  any  people  or  nation — 
producing  tolls  which  have  steadily  increased 
since  1826,  from  $841,687,  up  to  the  last  year,  to- 
$2,750,000— -and  with  the  whole  western  world 
tributary  to  it,  must  continue  to  add  more  and 
more  to  the  wealth  of  the  state  He  (Mr.  N.> 
wished  this  great  work  to  pass  into  the  custody  of 
our  successors  in  a  finished,  substantial  state,  with 
a  capacity  adequate  to  the  vast  objects  oi  its  con- 
struction ;  and  he  therefore  earnestly  hoped  that 
the  surplus  canal  revenues  might  be  applied  by 
this  provision  strictly  to  this  purpose.  In  regard 
to  the  Genesee  Valley  and  Black  River  canals,  he 
did  not  concur  in  the  opinion  just  now  expressed 
by  the  gentleman  from  Heikimer,  (Mr.  LOOMIS) 
that  the  faith  of  the  state  was  not  pledged  for  their 
completion.  After  the  passage  ot  the  law  author- 
izing their  construction,  laying  the  route,  con- 
structing three  quarters  of  the  work,  and  thereby 
inducing  emigration  to  its  vicinity,  and  the  pur- 
chase and  improvement  of  property  predicated 
upon  a  public  work  thus  progressed  with,  who 
can  question,  under  such  circumstances,  the  obli- 
gations of  the  state  to  complete  this  work,  how- 
ever gradually  it  may  be  done.  The  Legislature 
has  the  power  to  do  almost  any  thing  \  but  there 
is  a  wide  difference  between  might  and  right,  and 
no  government  should  ever  attempt  to  encourage  or 
attenuate  this  distinction — let  it  preserve  its  faith 
inviolate  in  all  other  respects  as  well  as  meeting 
promptly  its  pecuniary  liabilities.  [Here  the  fit- 
teen  minutes  to  which  Mr.  N.  was  restricted  hav- 
ing expired  he  resumed  his  seat.] 

Mr.  DANA  said  that  he  very  much  wished  to 
move  an  amendment  to  the  third  section. 

The  CHAIR — Not  in  order  now. 

Mr.  STOW — I  shall  renew  my  amendment,  sir, 
at  the  proper  time. 

The  CHAIR,   (Mr.  WARD)— The  gentleman 
can  do  so. 

The  hour  of  four  having  arrived, 

Mr.  SHEPARD  called  for  the  vote  on  the  first 
section  of  Mr.  HOFFMAN'S  proposition,  and  th 


931 


question  recurred  on  Mr.  LOOMIS'  substitute,  as 
Follows* 

§  1.  After  paying  the  expenses  of  collection,  superinten- 
dence and  ordinary  repairs,  there  shall  be  appropriated 
•ndset  apart  out  of  the  revenues  of  the  state  canals,  in 
each  year,  commencing  on  the  first  day  of  June  1846,  the 
sum  of  one  million  aad  three  hundred  thousand  dollars 
until  the  first  day  of  Jane,  1855,  and  from  that  time  the 
»um  of  one  million  and  seven  hundred  thousand  dollars  in 
•each  year,  as  a  sinking  fund  to  pay  the  interest  and  redeem 
the  principal  of  that  part  of  the  state  debt  called  the  canal 
debt,  as  it  existed  &t  the  time  aforesaid,  and  including 
three  hundred  thousand  dollars,  then  to  be  borrowed,  until 
the  same  shall  be  wholly  paid;  and  the  principal  and  in- 
come of  the  said  sinking  fund  shall  be  sacredly  applied  to 
that  purpose, 

The  question  first  recurring  on  Mr.  BOUCK'S 
amendment  to  reduce  the  first  named  sum  to  $1>- 
200,000. 

Mr.  BOUCK  said  a  desire  had  been  expressed 
by  several  gentlemen  that  h«  would  withdraw 
this  amendment,  in  order  to  produce  more  har- 
mony and  conciliation  on  this  important  question. 
He  now  rose  to  do  so,  and  withdrew  his  amend- 
ment. 

Mr.  CHATFIELD  demanded  the  ayes  and 
noes. 

Mr.  LOOMIS'  amendment  was  then  adopted — 
ayes  87,  noes  26,  as  follows : 

AYES— Messrs,  Allen,  Angel,  Baker,  Bergen,  Bouck, 
Bowdish,  Brayton,  Brown,  Bruce,  Brundage,  Bull,  Burr, 
Cambreleng,  D.D.  Campbell,  R.  Campbell,  jr.,  Chatfield, 
Clark,  Clyde,  Conely,  Cook,  Cornell,  Cuddeback,  Dana, 
D auto r tli,  Dubois,  Gebhard,  Graham,  Greene,  Harrison, 
Hoffman,  Hotchkjss,  Hunt,  Hunter,  A.  Huntingtou,  Hutch- 
inson,  Hyde,  Kemble,  Kennedy,  Kernan,  Kingsley,  Kiik- 
land,  Loomis,  Mann,  McNeil,  .McNitt,  Maxwell,  MotTiS, 
Munro,  Murphy,  Nellis,  Nicoli,  O*Conor,  Patterson, 
Perkins,  Porter,  Powers,  President,  Rhoades,  Rich- 
mond, Riker,  Buggies,  Russell,  St.  John,  Sanford,  Sears, 
Shaw,  Sheldon,  Shepard,  Smith,  E.  Spencer,  Stanton,  Ste- 
phens, St«tson,  Taft,  J.  J.Taylor,  W.  Taylor,  Tilden, 
Townsend.Tnthili,  Vacke,  Van  Schoonhoven,  Ward,  Wa- 
terbury,  White,  Wood,  W.  B.  Wright.  Youngs-87. 

NAYS— Messrs.  Ayrault,  F.  F.  Backus,  H.  Backus,  Can- 
dee,  Chamberlain,  Crooker,  Dodd,  Dorian,  Flanders,  For- 
aytit,  Gardner,  Hawley.  Marvin,  Nicholas,  Parish,  Penni- 
inan,  Salisbury,  Shaver,  W.  H.  Spencer,  Stow,  Tallmadge, 
Warren,  Worden,  A.  Wright— 26, 

The  section  as  amended,  (see  above)  was  then 
adopted,  ayes  87,  noes  28. 

Mr.  PATTERSON  suggested  an  amendment  as 
necessary — that  is  to  insert  the  word  "  first"  be- 
tween '*  time"  and  **  aforesaid,"  which  was  agreed 
to. 

,  So  thai  part  of  the  section  reads  '•  as  it  existed 
«t  the  lime  first  aforesaid." 

The  question  then  recurred  on  Mr.  LOOMIS' 
proposition  to  strike  out  sections  two  and  three  of 
Mr.  HOFFMAN'S  article,  and  the  first  six  lines  of 
Mr.  H's  fourth  section,  and  insert  the  following  as 
«  second  section: 

^  2-  After  complying  with  the  provisions  of  the  first  sec- 
tion of  this  article,  there  shall  be  appropriated  and  set  apart 
out  of  tke  surplus  revenues  of  the  state  canals,  in  each 
year,  commencing  on  the  first  day  of  June,  1846,  the  sum 
of  three  hundred  and  fifty  thousand  dollars,  until  the  time 
when  a  sufficient  sum  shall  have  been  appropriated  and  set 
apart,  under  the  said  first  section,  to  pay  the  interest  and 
extinguish  the  entire  principal  of  the  canal  debt ;  and  af- 
ter that  period,  then  the  sum  of  one  million  and  five  hun- 
dred thousand  dollars  in  each  year,  as  a  sinking  fund,  to 
pay  the  iaterest  and  redeem  the  principal  of  that  part  of 
the  state  debt  calU-d  the  General  Fund  debt— including  the 
debt  lor  loans  of  the  state  credit  to  railroad  companies 
which  have  failed  to  pay  the  interest  thereon,  and  also  the 
contingent  debt  on  state  stocks  loaned  to  incorporated 
companies  which  have  hitherto  paid  the  interest  thereon, 
whenever  and  as  far  as  any  part  thereof  may  become  a 
charge  on  tke  Treasury  or  General  Fond— until  the  flame 


shall  be  wholly  paid;  and  the  principal  and  income  of  the 
said  last  mentioned  sinking  fund  shall  be  sacredly  applied 
to  the  purpose  aforesaid;  and  if  the  payment  of  any  part 
of  the  -  aid  sinking  fund  shall  at  any  time  be  deferred,  by- 
reason  ot  the  priority  recogniwd  in  the  first  section  of 
this  article,  the  sum  so  deferred,  with  quarterly  interest 
thereon,  at  the  then  current  rate,  shall  be  paid  to  the  last 
mentioned  sinking  fund,  as  soon  as  the  sum  so  deferred 
shall  be  received  into  the  Treasury. 

The  first  nine  lines  comprise  the  amendment  of- 
fered by  Mr  LOOMIS. 

The  same  was  adopted  by  the  following  vote : 

AYES— Messrs.  Allen,  Angel,  Archer,  Bergen,  Bouck, 
Bowdish,Brown,Uruce,  Brundage,  Bull,  Burr,Cambreleng» 
D.  D.  Campbell,  R.Campbell,  jr.  Chatfield,  Clark,  Clyde, 
Conely,  Cook,  Cornell,  Cuddeback,  Dana,  Daoforth,  Du- 
bois, Gardner,  Gebhard,  Graham,  Greene,  Harris,  Harri- 
son,  Hoffman,  Hotchkiss,  Hunt,  Hunter,  A.  Huntittgton, 
Hutchinson,  Hyde,  Kemble,  Kennedy,  Kernan.  Kingsley^ 
Loomis,  Mann,  McNeil,  McNitt,  Maxwell,  Morris,  Munro, 
Murphy,  Nellis,  Nicoli,  O'Conor,  Patterson,  Perkins,  For- 
ter,  Powers,  President,  Rhoades,  Richmond,  Riker,  Rug- 
gles,  Russell,  St.  John,  Sanford,  Sears,  Shaw,  Sheldon, 
Shepanl,  Smith,  E.  Spencer,  Stanton,  Stephens,  Stetsoa, 
Swackhamer,Taft,  J.  J.  Taylor,  W.Ta}lor,  Tilden.Town- 
send,  Tuthill,  Vache,  Van  Schoonhoven,  Ward,  Waterbu- 
ry,  White,  Wood,  W.  B.  Wright,  Youngs-89. 

NAYS— Mesrs  F.  F.  Backus, H.  Backus,  Bascom,  Bray- 
ton,  Candee,  Crooker,  Dodd,  Flanders,  Hawley,  Kirk- 
land,  Marvin.  Nicholas,  Parish,  Penniman,  Salisbury, Sha 
ver,  W.  H,  Spencer,  Stow,  Strong,  TaUmadge,  Warren, 
Worden-22. 

Mr.  CHATFIELD  moved  to  substitute  for  the 
last  line  the  following — «« it  can  be  done  consist- 
ently with  the  just  rights  of  the  creditors  holding 
the  said  canal  debt." 

Mr.  WORDEN  asked  if  this  could  be  offered 
at  this  time  ? 

The  PRESIDENT  replied  in  the  affirmative. 

Mr.  WORDEN  said  it  seemed  to  imply  that  we 
had  authorized  something  to  be  done  that  would 
conflict  with  the  just  rights  of  creditors. 

Mr.  CHATFIELD  thought  that  could  not  be 
the  effect. 

Mr.  WORDEN  asked  if  the  gentleman  desired 
to  leave  a  question  open  here,  whether  this  appro- 
priation of  the  canal  revenues  was  a  violation  of 
the  pledges  under  which  the  money  was  borrowed? 

Mr.  CHATFIELD'S  object  was  to  protect  these 
pledges. 

The  amendment  was  adopted,  51  to  38. 

The  section  as  amended  was  then  adopted,  ayes 
93,  noes  27. 

The  next  question  was  upon  the  following  3d 
section  of  Mr.  LOOMIS'  amendment : — 

§  3.  The  surplus  revenues  of  the  canals,  after  comply, 
ing  with  the  provisions  of  the  two  last  preceding  sections 
shall  be  appropriated,  at  the  disrietion  ol  the  legislature,  to 
defray  the  ordinary  expenses  of  government,  and  lorother 
purposes;  but  no  law  shall  be  passed  appropriating  or 
pledging  for  the  construction  or  improvement  of  any  canal 
or  railroad,  any  part  of  such  revenues,  beyond  those  otthe 
year  current,  at  the  time  of  passing  such  Jaw. 

Mr.  BOUCK  offered  the  following  substitute 
for  the  proposition  of  Mr.  LOOMIS  : — 

The  sum  of  $172  000  shall  be  annually  applied  to  pay 
any  deficit  which  may  occur  in  the  revenue  of  the  general 
fund  to  meet  the  expenses  of  the  government;  the  remain- 
der ol  the  canal  revenue  shall  be  appropriated  to  the  en- 
largement of  the  Erie  canal,  and  the  completion  of  the  Oe- 
neste  Valley  anJ  Black  River  canals  until  the  same  are 
completed.  After  the  payment  of  the  public  debt,  $672,000 
shall  be  annually  appropriated  from  the  canal  revenues  to 
the  general  fund,  to  meet  the  expenses  of  the  government. 

Before  taking  the  question  on  this,  Mr.  PAT- 
TERSON moved  to  amend  the  section  of  Mr. 
LOOMIS,  by  striking  out  all  after  the  word  "  gov- 
ernment," in  thej  4th  line,  and  insert,  "and  for 


932 


the  completion  of  the  enlargement  of  the  Erie 
canal,  and  of  the  Genesee  Valley  and  Black  River 
canals." 

Mr.  STRONG  inquired  if  this  was  debatable  ? 

The  PRESIDENT  said  it  was  not. 

After  some  conversation  on  the  point  of  order 
Mr.  S.  appealed  from  this  decision,  but  it  was 
sustained  by  the  Convention. 

Mr.  PATTERSON  enquired  whether  his  a- 
mendment  would  be  in  order,  if  Mr.  BOUCK'S 
should  be  lost  ? 

The  PRESIDENT  replied  affirmatively. 

Mr.  PATTERSON  then  waived  his  amend- 
ment for  the  present. 

Mr.  NICOLL  moved  to  amend  the  original 
section  by  adding  the  following  in  relation  to  the 
disposition  of  the  surplus  proceeds  : 

"  At  least  two  thirds  in  each  fiscal  year  shall  be  appro- 
priatedto  the  improvement  of  the  Erie  canal  in  such  man. 
ner  as  shall  be  directed  by  law,  until  such  surpluses  in 

the  aggregate  shall  amount  to  at  least dollars,  and 

the  rf-sidue  of  such  surplus  moneys  shall  be  appiopriated 
to  defray  the  ordinary  expenses  of  government  and  for 
other  purposes,"  &c. 

Mr.  NICOLL  moved  to  fill  the  blank  with 
$3,500,000. 

Mr.  CHATFIELD  with  $2,000,000. 

Mr.  O'CONOR  with  $5,000,000. 

Mr.  RUSSELL  with  2,000,000. 

Mr.  WHITE  with  $6,000,000. 

Mr.  VAN  SCHOONHOVEN  with  $3,000,- 
000. 

Mr.  WORDEN  asked  if  we  were  to  have  new 
propositions  sprung  upon  us,  changing  the  whole 
structure  of  this  article,  and  to  be  compelled 
to  vote  on  them  without  even  an  explanation  ? 

Mr.  LOOMIS  supposed  the  rule  cut  off  all  a- 
mendments  except  those  pending  at  the  time. 

The  PRESIDENT  replied  that  the  resolution 
tinder  which  we  were  acting,  expressly  permitted 
•uch  proposition. 

The  question  was  taken  respectively  on  the  lar- 
gest sums. 

Mr.  WHITE'S  amendment  was  rejected  :  ayes 
27,  noes  83. 

Mr.  NICOLL  here  said  he  would  make  a  slight 
alteration— changing  the  word  "surpluses"  to 
*'  appropriations." 

Mr.  BASCOM  remarked  that  that  was  a  very 
material  alteration.  He  now  moved  to  fill  the 
blank  with  twelve  millions.  Lost. 

Mr.  CHAMBERLAIN  here  called  for  the  read- 
ing of  the  resolution  of  this  morning — insisting 
that  these  new  propositions  were  all  out  of  order. 

The  PRESIDENT  (the  resolution  having  been 
read  again)  adhered  to  his  decision. 

Mr.  CHAMBERLAIN  then  had  only  to  say 
that  he  hoped  the  Convention  would  vote  down 
every  amendment  that  had  not  been  discussed. — 
[Loud  cries  of  "  order."} 

Mr.  O'CONOR'S  motion  to  fill  the  blank  was 
negatived :  ayes  32,  noes  73, 

Mr.  NICOLL'S  motion  was  negatived :  ayes  32, 
noes  73. 

Mr.  VAN  SCHOONHOVEN  withdrew  his  mo- 
tion, and  Mr.  WAT  ERBURY  renewed  it.  The 
same  was  negatived ;  ayes  44,  noes  70. 

Mr.  CHAMBERLAIN  moved  to  lay  the  amend- 
ment on  the  table. 

Mr.  W.  TAYLOR  insisted  that  this  would  car- 
ry the  section  along  with  it,  if  not  the  entire  ar- 
ticle. 


The  PRESIDENT  decided  otherwise. 

Mr.  NICOLL'S  amendment  was  laid  on  the  ta- 
ble 5  ayes  70,  noes  47. 

Mr.  PATTERSON  now  renewed  his  amend^ 
ment.  [See  above.] 

Mr.  CHATFIELD  called  for  a  division£of  the 
question,  so  as  to  take  it  upon  each  canal  sepa- 
rately. 

The  PRESIDENT  said  it  could  not  be  divided, 

Mr.  KIRKLAND  moved  to  lay  the  amendment 
on  the  table.  Lost— ayes  39,  noes  72. 

Mr.  CHATFIELD  again  moved  a  division  of 
the  question. 

The  PRESIDENT  again  decided  against  Mr, 
CHATFIELD. 

Mr.  PATTERSON  said  at  the  urgent  request 
of  the  gentleman  from  Schoharie  and  others,  and 
to  relieve  the  Chair  of  all  embarrassment,  he 
would  again  waive  his  amendment. 

Mr.  BROWN  :  I  renew -it,  leaving  out  all  that 
relates  to  the  Black  River  and  Genesee  Valley  ca- 
nals, and  leaving  out  the  word  "ordinary,"  before 
"  expenses." 

Mr.  RICHMOND  hoped  that  would  be  voted 
down. 

Mr.  R.  CAMPBELL  moved  to  adjourn.  Lost, 
47  to  62. 

Mr.  BROWN  here  varied  his  amendment  so 
that  it  should  read  as  follows : 

"Shall  be  appropriated  at  the  discretion  of  the  legislature 
to  defray  the  expenses  of  the  government  and  for  the  im- 
provement of  the  Erie  canal,  &c." 

Mr.  ST.  JOHN  moved  to  adjourn.  Lost — 40 
to  65. 

Mr.  CHAMBERLAIN  moved  to  lay  the  amend- 
ment on  the  table. 

Mr.  CHATFIELD  called  for  the  ayes  and  noes, 
and 

Mr.  CHAMBERLAIN  withdrew  his  motion. 

Mr.  FORSYTH  renewed  it— and 

The  amendment  of  Mr.  BROWN  was  laid  on  the* 
table — ayes  68  f  noes  35, 

Mr.  BOUCK  now  demanded  the  previous  ques- 
tion on  his  amendment,  [see  above,}  and  there 
was  a  second,  &c. 

Mr.  CHATFIELD  called  for  the  reading  of  it- 
saying  that  it  seemed  to  contemplate  the  enlarge- 
ment of  the  Genesee  Valley  and  Black  River  ca- 
nals. 

The  amendment  having  been  read, 

Mr.  RUSSELL  stated  some  objection  to  its 
phraseology,  and 

Mr.  BOUCK  replied  that  he  thought  it  suffi- 
ciently explicit. 

Mr.' NICOLL  asked  if  there  was  any  thing  in  it 
in  regard  to  pledging  the  revenues  beyond  the  cur- 
rent year  ? 

Mr.  WORDEN  replied  that  that  was  the  very 
thing  that  should  not  be  in  it. 

The  question  was  then  taken  on  Mr.  Botrci;'» 
amendment,  and  it  was  negatived— ayes  54,  noes 
60,  as  follows : 

AYES— Messrs  Angel,  Archer,  Ay rault,  F.  F.  Backus, 
H.  Backus,  Baker,  Bascoin.  Bouck,  Biayton,  Bruce,  Bull, 
D.  D.  Campbell,  Candee,  Chamberlain,  Crooker,  Dana, 
Dodd  Dorlon,  Forsyth.  Gardner,  Gebiiaid,  Harris,  Harri- 
son Hawley,  Hotchkiss,E.Huntington,  Hyde,  Kirkland, 
Mann,  McNitt,  Marvin,  Maxwell,  Murphy,  Nicholas, 
Parish,  Patterson,  Penniman,  Perkins,  Rhoades,  Richmond, 
Salisbury,  Shaver,  Smith,  E.  Spencer,  W.  H.  Spencer, 
Stanton,  Stow,  Strong,  Tallmadge,  Van  Sctvooahoven, 
Warren,  White,  Word«n,  A.  Wright— 64. 


933 


NOES— Messrs.  Allen,  Bergen,  Bowdish,  Brown,  Brun- 
dage,  Burr,  CambreU-ng,  R.  Campbell  jr.,  Chatiield,  Clark, 
Clyde.  Conely.  Cook,  Cornell,  Cnddeback,  Dantorth,  Du- 
bo'is,  Flanders,  Graham,  <ire««ne,  Holfnvm,  Hunt,  Hunttr, 
A.  Huiitiauton,  lliitrhinson,  Ki-nm-dy,  Kin^sley,  Loomis, 
•il,  Morris,  Monro,  Nellis,  Nicoll,  G*Conor,  Porter, 
Powers,  President,  Kiker.  Ruggles,  St.  John,  Sauford, 
Hears,  Shaw,  Sheldon,  Shepard,  Stephens,  Stetson,  Swack- 
hamer,  Taft.  J.  J  Taylor.  VV.  Taylor,  Tilden,  Townsend, 
Tuthill,  Vache,  Ward,  Waterbury,  Wood,  W.  B.  Wright, 
Youngs— 60. 

Mr.  RUSSELL  when  his  name  was  called,  de- 
clined to  vote,  as  he  could  not  explain. 

Mr.  ANGEL  gave  notice  of  a  motion  to  recon- 
sider. 

Mr.  LOOMIS  moved  the  previous  question  on 
his  section. 

Mr.  CROOKER  moved  to  adjourn.  Lost,  49 
to  64. 

The  previous  question  was  then  seconded,  and 
the  3d  section  offered  by  Mr.  LOOMIS  (see  above) 
was  rejected  as  follows : — 

AYES— Messrs.  Allen,  Bergen,  Bowdish,  Brown,  Brun- 
dage,  Cambreleng,  11.  Campbell  jr..  Chatfield,  Clyde,  Cone- 
ly,  Cuddcback,  Danforth,  Dubois,  Flanders,  Greene,  Hull- 
man,  Hunt,  Hunter,  A.  Iluutington,  Hutchinson,  Kemble, 
Kennedy,  Kingsley,  Loomis  McNeil,  Munro,  Murphy, 
Nellis,  Nicoll,  Powers.  President,  Hiker,  Ruggles  St.John, 
Sanford,  Sears,  Shaw,  Sheldon,  Shepard,  Stephens,  Stet- 
son, Swackhamer,  Taft,  J.  J.  Taylor,  W.  Taylor,  Tilden, 
Townsend,  Tuthill,  Vache,  Ward,  Waterbury,  Wood, 
Youngs— 53. 

NOES— Messrs.  Angel,  Archer,  Ayrault,  F.  F.  Backus, 
H.  Backus,  Baker,  Bascom,  Bouck,  Brayton,  Bruce,  Bull, 
Burr,  D.  D.  Campbell,  Candee,  Chamberlain,  Cook,  Crook- 
er,  Dana,  Dodd,  Dorlon,  Forsyth,  Gardner.  Gebhard,  Gra- 
ham, Harris,  Harrison,  Hawle'y,  Hotchkiss.E.  Huntington, 
Hyde,  Kirkland,  Mann,  McNitt,  Marvin,  Maxwell,  Morris, 
Nicholas,  O'  ;onor,  Parish,  Patterson,  Penniman,  Perkins, 
Porter,  Rhoades,  Richmond,  Russell,  Salisbury,  Shaver, 
Smith,  E.  Spencrjr,  W.  H.  Spencer,  Stanton,  Stow,  Strong, 
Tallmadge,  Var  'fchoonhoven,  Warren,  White,  Worden, 
A.  Wright,  W.  B.  Wright— 61. 

Mr.  CHATFIELD  moved  to  reconsider. 
Mr.  KIRKLAND  moved  to  adjourn.     Carried, 
75  to  35. 
Adj.  to  8k  o'clock  to-morrow  morning. 

TUESDAY,  (95th  day)  Sept.  22. 
Prayer  by  the  Rev.  Mr.  WIL.KINS. 
Mr.  TILDEN  asked  leave  to  have  the  minutes 
Corrected  so  as  to  insert  his  name  as  voting  in  the 
affirmative  on  the  2ti  section  of  Mr.  LOOMIS,  yes>- 
terd.iy — the  clerk  having  accidentally  omitted  it. 
Agreed  to. 

THE  LEGISLATURE. 

Mr.  STETSON  presented  the  following  report 
from  cornrniiree  No.  2,  on  the  present  duiies  ol 
the  Legislature : 

ARTICLE  -. 

^  1.  A  majority  of  each  house  shall  constitute  a  quorum 
to  do  business,  but  a  smaller  number  n»ny  adjourn  from 
time  to  time,  and  compel  the  attendance  of absent  members 
in  such  m  inner  and  under  such  penalties  as  each  house 
may  provide. 

ij  2  Each  house  shall  determine  the  rules  of  its  own  pro- 
.  i  be  tha  judge  ol  the  elections,  returns  and 
qualifications  ol  its  own  members;  shall  choose  its  own  oi- 
lic  •!•-;  and  the  Senate  shall  choose  a  temporary  president 
when  the  lieutenant-governor  shall  not  attend  as  piesi- 
dent  or  shall  act  as  governor. 

§  3.  Each  House  shall  keep  a  journal  of  its  own  proceed- 
ings, ana  publish  the  same,exci-pt  such  parts  as  may  ]  equ.re 
secrecy.  The  doors  of  each  Ho  use  flhall  be  kept  open,  ex- 
cept when  the  public  weliare  shall  r  quire  seciecy.  Neith- 
er house  fhall.  without  the  consent  ol  the  other,  adjourn  for 
more  than  two  days,  and  each  house  shall  sit  upon  its  own 
adjournment. 

$  4.  Each  House  shall  retain  the  power  to  punish  its 
members  tor  disorderly  behaviour,  and  with  the  concur- 


rence   of  two  thirds,    to  expel  a  member,  but  a   member 
shall  not  be  expelled  a  second  time  for  the  same  offence. 

fj  5.  For  any  speech  or  debate  in  either  House  of  the  le- 
"islature,  the  membtrs  shall  not  be  questioned  in  any  oth- 
er place. 

^  6.  Any  bill  may  originate  in  either  House  of  the  legis- 
lature; and  all  bills  passed  by  one  house  may  be  amended 
by  the  other. 

§  7.  The  enacting  clause  of  all  bill*  shall  be  "  The  Peo- 
ple of  the  State  of  New-York,  represented  in  Senate  and 
Assembly,  do  enact  as  follows  :"  and  no  law  shall  be  enac- 
ted except  by  b;lls. 

^  8.  All  bills  and  joint  resolutions  shall  be  read  ar  least 
three  times  in  each  House,  before  the  final  passage  there- 
of; and  no  bill  or  joint  resolution  shall  pass  unless  two- 
thirds  of  all  the  members  of  each  body  be  personally  pres- 
eut  during  the  last  reading  and  on  the  final  passage  ;  and 
the  qu.-slion  upon  the  finnl  passage  shall  be  taken  immedi- 
ately upon  the  last  reading.  The  ayes  and  nays  of  the 
members  voting  on  such  final  passage  shall  be  entered  on 
the  journal. 

§  9.  No  private  or  local  bill,  which  may  be  passed  by  the 
legislature,  shall  embrace  more  than  one  subject,  and  that 
shall  be  expressed  in  the  title. 

^  10  Eveiy  bill  lor  local  or  private  purposes  passed  bythe 
legislature  after  the  first  sixty  days  ol  its  annual  session 
shdll  be  void,  except  when  the  matter  of  the  act  has  arisen 
dunng  the  same  session. 

§  11.  No  bill  that  shall  have  passed  onehouse  shall  be  sent 
for  concurrence  to  the  other  on  either  of  the  three  last  days 
of  the  session,  without  the  assent  ot  two-thuds  ol  each 
house,  to  be  expressed  by  joint  resolution  upon  each  bill 
separately. 

§.  1-2.  No  bill  shall  be  presented  to  the  Governor  for  his 
signature  within  the  last  twenty -four  hours  of  a  session  of 
the  legislature. 

^  13.  Provision  shsll  be  made  by  law  for  bringing  suits 
against  the  State  in  the  courts  thereof,  and  for  regulating 
their  jurisdiction  and  proceedings  in  such  suits. 

5;  14.  No  exemption  from  taxation  shall  be  allowed  in  fa- 
vor of  any  corporation  or  corporations  ior  gain  or  profit, 
which  is  not  also  extended  to  natural  persons,  and  all  such 
exemptions  shall  be  according  to  general  rule  applicable 
alike  to  natural  persons  and  10  bodies  politic  for  fjain  or 
profit.  By  order  ot  the  Committee. 

LEMUEL  STETSON,  Chairman. 

The  following  report  from  the  minority  of  the 
same  committee  was  also  presented  by  Mr.  St. 
JOHN: 

()  — .  No  law  shall  be  passed  fixing  the  legal  rate  of  in- 
terest beyond  the  sum  of  six  dollars  lor  one  hundi  ed  dol- 
lars, lor  one  j  ear,  or  in  that  proportion  for  a  longer  or 
shorter  term. 

They  were  ordered  to  be  printed. 

LIMITATION  TO  DEBATE. 

Mr.  W.TAYLOR  offered  the  following  resolu 
tion  : 

"  Resolved,  That  hereafter  debates  in  committee  of  the 
whole,  and  in  convention,  be  limited  to  16  minutes  to  each, 
speech ." 

Mr.  CAMBRELENG:  I  shall  vote  for  the  re- 
solution,  sir;  although  I  can  hardly  discuss  the 
great  question  of  banking  and  cutrency  in  15  iiii- 
nutes. 

SEVERAL, — We'll  allow  you  more  time. 

Mr.  IN'ICOLL  opposed  trua  resolution,  <md  mov- 
ed to  lay  it  on  the  table.  There  were  too  many 
important  subjects  to  be  discussed.  It  was  oui- 
rageous. 

Air.  MURPHY  also  opposed  it.  There  ^  ere 
many  important  subjects  that  must  require  mure 
than  15  minulr-s;  his  own  repot  t  for  instance.  We 
have  allowed  the  greatest  laiitude  before,  and 
whv  les'rift  if  now  ? 

Mr.  MORRIS  said  that  he  was  opposed  to  the 
resolution,  all  hough  the  n-.ass  ot  the  members 
lalked  infinitely  more  than  they  ought  to  do.  And 
the  mass  of  them  did  nothing  but  repeat  the  same 
ideas  over  and  over  again  that  olheis  had  deliver- 
ed, and  in  many  insiauces  the  very  same  words. 


934 


Yet  he  would  rather  submit  to  these  evils,  than 
submit  to  others  which  the  rule  would  produce. 
It  was  very  evident  that  the  Convention  could  not 
get  through  with  all  its  business;  therefore  what 
it  did  do,  it  should  do  well. 

Mr.  RUSSELL  called  for  the  ayes  and  noes  on 
the  motion  to  lay  on  the  table  He  said  that  he 
was  determined  to  see  what  members  there  were 
who  really  intended  to  do  business. 

They  were  ordered  and  resulted — ayes  25,  noes 
77. 

The  previous  question  was  then  moved  by  Mr. 
RUSSELL,  and  seconded — ayes  69,  noes  not 
counted. 

Mr.  NICOLL  called  for  the  ayes  and  nays  on 
the  resolution  itself. 

They  were  ordered,  and  resulted—ayes  73, 
noes  39.  So  it  was  carried. 

EVENING  SESSION. 

Mr.  NICOLL  offered  a  resolution  to  devote  the 
evening  sessions  to  the  report  on  rights  and  pri- 
vileges, and  next  to  education  and  common 
schools. 

Mr.  F.  F.  BACKUS  (Mr.  NICOLL  withdrawing 
for  that  purpose)  offered  a  resolution  to  extend 
the  afternoon  session  to  half-past  seven,  instead 
of  holding  evening  sessions. 

Mr.  BACKUS'  resolution  was  adopted. 
ELECTIVE  FRANCHISE. 

Mr.  BRUCE  called  for  the  consideration  of  his 
resolution,  ordering  that  after  the  financial  reports 
should  have  been  disposed  of,  that  on  the  ELEC- 
TIVE FRANCHISE  should  be  next  considered  by 
the  convention. 

Mr.  TOWNSEND  demanded  the  ayes  and  noes 
on  the  question  of  considering  the  resolution. 

The  house  refused  to  consider  the  resolution — 
ayes  47,  noes  69. 

Mr.  MARVIN,  by  consent,  presented  a  memo- 
rial from  Robert  Owen,  which  was  partly  read. 

Mr.  WORDEN  said  their  time  was  too  precious 
to  waste  it  in  this  way. 

The  SECRETARY  had  begun  to  read  it;  Mr. 
OWEN  stated  that  he  had  hurried  across  the  At- 
lantic to  give  his  views  to  the  convention,  as  he 
took  great  interest  in  their  proceedings.  (Much 
laughter.) 

On  motion  of  Mr.  LOOMIS,  the  reading  was 
stopped,  and  it  was  laid  on  the  table. 
CANALS,  FINANCES,  &c. 

Mr.  RUSSELL  offered  the  following  resolution 
of  instructions  to  the  committee  on  Finance  ; 

Resolved,  That  the  committee  on  finance  be  instructed 
to  report  forth  with  the  following  as  section  three  of  the 
1st  article  reported  by  the  committee: — 

(j  3.  After  complying  with  the  provisions  of  the  two  last 
preceding  sections,  the  surplus  revenues  of  the  canals,  un 
til  the  first  day  of  June,  Ib56,  shall  be  appropriated  as  fol 
lows: — The  sum  of  $-JOO,000  annually  to  defray  the  ordina 
ry  expenses  of  government,  and  the  remainder  to  the  im- 
provement or  completion  of  the  canals;  and  alter  the  time 
mentioned  in  this  section,  to  such  purposes  as  the  Legis- 
lature may  direct. 

Mr.  MURPHY  moved  the  previous  question, 
but  withdrew  it  to  allow  Mr.  WHITE  to  offer  the 
following  amendment : — 

§  3.  After  paying  the  said  expenses  of  the  canals,  and 
the  sums  appropriated  by  the  first  and  second  sections  ol 
this  article,  there  shall  be  paid  out  of  the  surplus  revenues 
of  the  canals,  to  the  treasury  of  the  state,  on  or  before  the 
thirtieth  day  of  September  in  each  year,  for  the  use  and 
benefit  of  the  general  fund,  such  sums,  not  exceeding  $200 


000,  as  may  be  required  to  defray  the  necessary  expense* 
ef  the  state;  and  the  remainder  of  the  revenues  of  the  said 
canals  shall,  in  each  fiscal  year,  be  applied  to  the  com- 
pletion of  the  Erie  canal  enlargement,  the  Oenesee  Valley 
and  Black  River  canals,  until  the  said  canals  shall  be  com- 
pleted. 

Mr.  WHITE  renewed  the  previous  question. 

Mr.  TILDEN  protested  against  these  new  a- 
mendments  being  thrust  in,  and  then  the  previ- 
ous question  being  forced  upon  them.  He 
raised  a  question  of  order.  The  gentleman  from 
New  York  (Mr.  WHITE)  could  not  move  an  a- 
mendment  and  the  previous  question  at  the  same 
time  before  the  question  on  the  amendment  had 
been  stated  to  the  House. 

The  PRESIDENT  said  that  the  gentleman 
from  Kings  had  withdrawn  his  motion  to  allow 
the  gentleman  from  New  York  (Mr.  WHITE)  to 
make  his,  and  therefore  the  motion  was  in  order. 

The  previous  question  was  seconded — ayes  46, 
noes  44. 

Mr.  HOFFMAN  said  that  he  would  now  de- 
mand the  ayes  and  noes  on  the  main  question. 

They  were  ordered  and  resulted,  ayes  51,  nays 
64.  So  the  House  refused  to  order  the  main 
question  to  be  put. 

Mr.  TILDEN  rose  to  speak  but  was  interrupt- 
ed many  times  on  various  points  of  order  by 
Messrs.  MURPHY,  BROWN,  CHAMBERLAIN,  &c., 
but  the  Chair  overruled  them,  and  Mr.  TILDEN 
proceeded  to  oppose  Mr.  WHITE'S  amendment. 

Mr.  WORDEN  was  not  surprised  at  the  grounds 
of  opposition  assumed  by  the  gentleman  from  New 
York  (Mr.  TILDEN.) 

He  desired  to  call  attention  to  one  fact.  In 
1842  a  tax  was  levied  on  the  people  of  this  State 
for  the  canals,  on  the  express  ground  that  they 
were  insolvent  and  such  tax  necessary.  What  do 
we  see  now  in  1846  ?  We  have  already  adopted 
a  provision  in  the  Constitution,  levying  an  annual 
tax  on  the  canals  of  $350,000,  to  pay  the  debts  of 
insolvent  railroads  and  other  debts  incurred  for 
the  sypport  of  the  State  government.  By  the  a- 
mendment  now  offered  it  is  proposed  to  charge  a 
farther  tax  on  the  canal  revenues  of  $ 200,000  to 
support  the  State  government,  making  in  all 
$550,000,  being  equal  to  a  gross  charge  of  $11,- 
000,000,  on  the  canals  of  the  State.  Look  at  the 
contrast.  In  1842,  you  say  the  canals  are  insol- 
vent and  lay  a  tax  for  their  support.  In  1846  you 
charge  these  very  canals  equal  to  the  sum  of 
$11,000,000  for  the  support  of  government.  Mr. 
W.  would  advocate  no  such  proposition.  He  had 
agreed  that  the  entire  debt  of  the  State  should  be 
charged  upon  the  canals.  He  had  agreed  to  a  pro- 
vision which  drew  from  the  canal  tolls  $550,- 
000  annually  for  the  use  of  the  government.— 
This  was  more  than  the  amount  of  the  direct  tax 
now  levied  upon  the  State.  But  beyond  this  he 
would  not  consent  to  go.  He  could  not  vote 
for  any  proposition  that  did  not  secure  the  appro- 
priation of  the  entire  surplus  to  the  completion 
of  the  unfinished  works  after  supplying  the  sink- 
ing funds.  Having,  made  provision  for  the  pay- 
ment of  the  entire  debt  of  the  State  out  of  the  rev- 
enues of  the  canals,  and  pledged  these  revenues 
for  that  purpose,  (and  Mr.  W.  said  he  had  uni- 
formly advocated  such  a  provision)  he  would  not 
consent  that  the  canals  should  be  charged  further 
for  the  support  of  the  government.  After  paying 
all  the  State  debt  out  of  the  tolls  of  the  canals, 


935 


the  best  interests  of  the  State  required  the  appli- 
cation of  the  surplus  to  their  completion.  He 
had  been  willing  so  to  arrange  the  sinking  funds 
as  to  leave  sufficient  surplusses  to  make  an  ap- 
propriation for  the  support  of  the  government  out 
of  the  tolls  ;  but  that  ground  of  compromise  had 
been  rejected,  and  the  whole  surplus  tolls  if  ap- 
plied to  the  completion  of  the  canals  under  the 
present  arrangement,  would  not  finish  them  as 
soon  as  the  public  interest  demanded.  He  desir- 
ed now  to  see  the  surplus  revenue  applied  where 
they  should  be,  to  the  completion  of  the  canals. — 
He  was  unwilling  that  these  revenues  should  be 
left  at  the  disposal  of  the  legislature  to  invite  cor- 
rupt legislation  and  to  be  appropriated  to  local, 


sectional  or  private  purposes. 
Mr.  SWACKHAMER  said 


he  did  not  with- 


draw the  motion  to  lay  on  the  table  with  the  ex- 
pectation that  the  gentleman  from  Ontario,  (WoR 
DEN)  would  take  advantage  of  the  opportunity  to 
misrepresent  the    gentleman  from  New  York 
(TILDEN)  whose  course  had  been  perfectly  con- 
sistent on  this  question  :  and  to  reiterate  charges 
against  that  patriotic  city,  as  false   as  they  were 
unjust  and  ungenerous.     The   city  of  New  York 
had  stood  for  years,  the  proudest  monument  to 
the  enterprise  and  progress  of  a  free  people. — 
Although  the  devastating  element  had  consumec 
millions  upon  millions,  and  unjust  and  unequal 
taxation  absorbed  hundreds  of  thousands  of  the 
property  of  our  citizens,  yet  all  this  had  scarcely 
checked  its  growing    prosperity,  while   it  had 
strengthened  public  confidence  in  the  integrity 
and  persevering  industry  of  her  people.      But 
there  were  other    objections  to  the  influence  ex- 
ercised by  tha<.  oity,  than  what  appeared  here. — 
She  was  not  only  the  centre  of  commerce  in  the 
New  world,  but  was  also   first   in   promulgating 
correct  and  liberal  principles  of  political  econo- 
my.    From  them,  principles  as  pure  as  those  of 
the  revolution   had  originated,  and  though  oppos- 
ed by  the  same  class  of  men  that  resisted  that 
movement  in  favor  of  human  liberty,  and  for 
similar  reasons,  they  had  continued  to  spread  un- 
til they  had  become  the  policy  of  this  state,  and 
country.     He  was  proud  of  having  been  one  of 
the  representatives  of  the  commercial  Emporium 
in  1842  ;  and  he  could  now  point  with   pleasure 
to  the  agency  he  had  in  the  passage  of  the  act  of 
'42,  and  in  redeeming  the   credit  and  sustaining 
the  honor  ot  the  state.     It  was  there  that  the  di- 
viding line  was  drawn   between  the   repudiators 
and  debt  payers,  the  honest  and  the  dishonest. — 
It  was  there  that  the   standard  of  state   integrity 
was  hoisted  by  the  able  members  of  the  legisla- 
ture from  Herkimer  (HOFFMAN  and  LOOMIS,)  and 
so  nobly  sustained  by  those  from  New  York.     It 
was  there  that  the  much  abused  citizens  of  New 
York,  and  her   right   arm,   Kings   county,   paic 
without  a  murmur,  the  amount  $27 1,000,  annual- 
ly, nearly  half  of  the  whole   sum  raised  by  the 
state.     It  was   there   too — while   the  gentleman 
(WORDEN,)  and  his  financial  friends  were  trotting 
about  Wall  street,  begging  in  vain  for  a  little  cash 
with   their  credit,  if  they  had  any,  fifteen  o 
twenty  per  cent  below   par — that  the  friends  o 
justice  came  to  the  rescue,   and   saved   the  stati 
from  bankruptcy.     And  it  was  but  a  few  month 
after  this,  that  the  stocks  of  the  state  advancet 


to  from  12  to  15  per  cent,   above  par,  and  were 
sought  by  the  capitalists  of  every  country. 

The  policy  of  '42  had  been  denounced   in  the 
strongest  terms  by  members  of  this  body,  yet  he 
still  adhered  to  it,  and  looked  upon  it  as  one  of  the 
most  glorious  periods  in  the  history  of  this  State. 
While  state  after  state  was  rushing  down  the 
slough  ot  repudiation,  and  the  U.  S.  government 
was  almost  without  credit,  New-York  emerged 
out  from  the  surrounding  ruins  and  pledged  her- 
self to  the  world  that  her  honor  should  not  be 
tarnished  by  the  blighting  influence  of  repudia- 
tion.    That  plighted  faith  had  been  religiously 
kept  and    woe  to  the   man  who  this  day  violates 
While  his  constituents  had  borne  these  bur- 
dens willingly,  it  was  only  with  the  view  of  pre- 
serving the  honor  of  the  State,  and  not  for  the 
purpose  of  speculation  and  renewed  extravagance. 
They  had  no  idea  that  this  tax  would  be  perpetu- 
al, and  they  would  sustain  no  proposition  design- 
ed to  continue  it  unnecessarily.     He  was  ready 
to  support  as  liberal  policy  towards  the  Erie  ca- 
nal as  the  state  of  the  finances  would  permit,  and 
had  so  voted  yesterday  with  the  delegates  from 
New-York  ;  but  where  was  the  gentleman  from 
Ontario  (Mr.  WORDEN)  then  ?    This  was  a  great 
State  work,  and  if  to  vote  against  the  improve- 
ment was  to  favor  the  measure,  then  the  gentle- 
man might  claim  to  be    its  friend.     But  it  was 
vident  that  gentlemen  had  other  objects  in  view ; 
hey  wished  to  drag  in  the  lateral  canals,  some  of 
which  would  not  pay  the  interest  of  the  cost  of 
heir  construction.     To  this  he  was  unqualifiedly 
ipposed.     Despots  had  been  known  to  tax  their 
ubjects  without  their  consent,  but  to  put  one 
land  of  the  government  in   the  pockets  of  the 
>eople  to  gather  the  tax,  and  with  the  other  to 
nflict  the  injury  by  a  depreciation  of  their  pro- 
>erty,  was   a  compound   of  despotism   and  gross 
njustice.     The  system  of  constructing,  so  called, 
nternal   improvements,  by  which   the  price  of 
>roperty  was  enhanced  in  one  locality  of  the 
State    while  it    deteriorated  the   value    of   that 
of  other  sections,  was  oppressive  enough,   but 
when  you  add  to  this  direct  tax  on  the  neighbor - 
lood   injured,  you  sanction   a  principle  which 
would  not  only  rob  a  man,  but  that  would  knock 
tiim  down  after  he  was  fleeced  of  his  money,  for 
not  having  more  to  give.     It  was  to  measures  of 
this  kind  that  he  objected,   and  although  gentle- 
men should  demand   the  adoption  of  this  policy 
one  day,  as  a  right,  and  ask  it  the  next  day  "  with 
tears  in  their  eyes,"  yet  he  would  not  consent  to 
any  proposition  not  strictly  just,  whatever  might 
be  the  plea  urged  in  its  behalf. 

Mr. \bASCUiVl  called  for  the  ayes  and  noes; — 
they  were  ordered,  and  resulted — ayes  38,  nays  72. 
Lost. 

Mr.  MAN1N  moved  to  amend  the  amendment  of 
Mr.  WHITE,  by  striking  out  all  after  the  word 
"  repairs"  and  insert : 

"  Of  the  surplus  revenues  of  the  canals,  after  complying 
with  the  provisions  ot  the  two  last  preceding  sections, 
$^00.000  shall  be  annually  appropriated  to  the  general  lund 
to  meet  the  ordinary  expenses  of  government;  the  remain- 
der ol  the  canal  revenues  shall  be  appropiiated  to  the  im- 
provement and  enlargement  of  the  Erie  canal,  and  tue 
completion  of  the  Gencsee  Valley  and  Black  River  canals, 
until  the  amount  so  expended  shall  respectively  reach  the 
sum  of  $8,000,000  for  the  Erie  canal,  $1,200,000  for  the 
Genesee  Valley  canal,  $500,000  for  the  Black  River  canal. 
After  the  payment  ol  the  public  debt  a  suthcieut  sum  shall 


936 


be  annually  appropriated  from  the  canal  revenues  to  pay 
the  ordinary  expenses  of  government,  not  exceeding 
$700,000." 

Mr.  CAMBRELENG  said  he  should  certainly 
oppose  every  attempt  or  proposition  that  perpetu- 
ated the  direct  tax  ;  that  was  the  great  question. 
It  must  be  evident  to  every  gentleman  here,  that 
whatever  proposition  was  to  be  adopted,  should 
be  adopted  with  some  degree  of  unanimity.  His 
plan  was,  first  to  provide  for  the  ordinary  expens- 
es of  government,  and  after  that  he  would  vote 
to  appropriate  every  dollar  of  surplus  to  the  pay- 
ment or  extinction  of  this  debt. 

Mr.  STOW  inquired  if  the  gentleman  from 
Suffolk  meant  to  say  that  for  a  large  portion  of 
the  State  debt,  the  State  was  no  more  bound  to 
pay  than  an  individual  ? 

Mr.  CAMBRELENG  said  he  only  referred  to 
the  General  Fund  debt. 

Mr.  STOW  continued  :  The  gentleman  said 
the  State  was  interested  in  Railroads  ;  was  the 
Erie  Canal  interested  in  these  roads,  and  should 
we  give  up  a  portion  of  its  revenues  for  the  pur- 
pose of  carrying  on  these  roads,  which  are  to  be- 
come its  rivals  ?  He  admitted  that  it  was  wrong 
to  state  accounts  in  this  matter  as  though  we 
wer.j  in  a  counting-house;  but  gentlemen  on  the 
other  side  had  commenced  this  practice.  We 
should  regard  this  as  a  great  State  interest,  in 
which  the  every  location  was  interested.  He 
could  riot  regard  it  as  reasonable  that  the  canals 
should  be  made  to  pay  the  expenses  of  Govern- 
ment. 

Mr.  CAMBRELENG  read  from  the  message  of 
Gov.  Clinton,  in  which  he  said  that  the  revenues 
from  the  canals  would  one  day  become  prolific 
sources  of  revenue  for  the  support  of  government. 

Mr.  STOW  said  that  that  was  given  at  a  period 
when  there  had  not  been  millions  of  worthless 
debt  heaped  upon  us.  Gov.  Clinton  would  not 
use  the  same  language  at  the  piesent  time.  The 
western  part  of  the  State,  the  eighth  district,  had 
funded  two  dollars  for  every  one  which  it  had  re- 
ceived from  the  canals.  He  could  not  consent  to 
the  doctrine,  therefore,  that  the  canal  should  be 
made  the  means  of  taxation  for  the  support  of  go- 
vernment. The  accounts  had  been  brought  in 
here  to  show  that  this  policy  was  not  one  which 
gave  an  equal  share  of  ihe  burthens  to  all  the  peo- 
ple of  the  S'ate.  If  the  position  was^here  taken 
that  the  State  had  no  right  to  tax  the  right  of 
way,  he  should  resist  every  attempt  to  draw  from 
the  revenues  of  tl'.e  Erie  canal  for  the  purpose  of 
defraying  the  expenses  of  the  government. 

Mr.  HOFFMAN  said  that  after  what  had  taken 
place,  he  could  feel  but  very  little  interest 'in  this 
3d  section  ;  and  he  rose  now  to  vindicate  the  com- 
mntee.  Ot  the  promises  of  the  acting  govern- 
ment, and  the  great  men  who  participated  in  it  in 
the  past,  he  took  as  much  notice  as  was  due  to 
them  ;  but  us  to  their  opinions  on  matters  of  po- 
litical economy,  they  must  be  weighed  by  the 
truth,  and  if  in  that  respect  they  did  not  satisfy 
his  own  uridetstandmg,  he  was-  not  able  to  assent 
to  them.  He  hdd  listened  with  painful  attention 
to  the  speeches  of  gentlemen  who  had  claimed 
that,  the  canals,  as  the  property  of  the  stale,  should 
defray  the  entire  expenses  of  government,  because 
hi:  foresiiwthat  the  day  and  the  hour  would  corne, 
when  the  question  between  direct  taxation  and 


these  localities,  would  be  the  conflict,not  only  with 
us,  but  after  us.  In  the  report  of  the  standing 
committee,  and  throughout  the  whole  of  his  argu- 
ment on  that  report,  he  had  taken  care  to  assert 
and  maintain,  as  his  own  deep  conviction,  that  the 
Sovereign  could  not,  of  right,  except  by  oppres- 
sion, undertake  to  make  his  expenses  out  of  the 
right  of  way.  He  asserted  and  vindicated  that 
principle,  and  he  cared  not  for  the  consequences, 
here  or  elsewhere — now  or  hereafter.  He  denied 
that  the  Sovereign  could,  of  right,  derive  his  reve- 
nue  from  the  right  of  way,  beyond  redeeming  him 
fully  and  fairly  lor  advances  made.  Beyond  that, 
he  would  be  not  a  Sovereign,  but  an  oppressor. 
He  would  not  withdraw  this  language,  whatever 
might  happen  to  him,  here  or  elsewhere.  The 
standing  committee  had,  in  their  first  section, 
brought  in  a  proposition,  which,  he  urged,  fairly 
settled  the  question.  He  alluded  to  the  conflict 
of  opinion  which  had  been  witnessed  on  the  oth- 
er propositions  that  had  been  submitted,  and  urged 
that  unless  there  was  more  unanimity  on  this  sub- 
ject, it  would  be  rejected  when  sent  to  the  people. 
You  must  (said  Mr.  H.)  send  them  no  proposition 
on  which  you  are  not  able  to  3gree.  If  you  send 
them  a  proposition  growing  out  of  your  dissen- 
tions  and  divisions,  you  invite  the  same  state  of 
feeling  among  the  electors.  You  were  about  in 
this  position  last  night.  No  man  who  looked 
on  here  yesterday  could  doubt  that  you  would  not 
be  able  to  agree  to  any  proposition  that  can  or 
will  be  submitted  to.  If  you  appropriate  all  the 
revenues  ot  these  canals,  le'av ing  none  for  the  sup- 
port of  government,  you  will  have  counties  again 
and  again  against  you.  And  if  you  do  not,  the 
gentleman  from  Erie  tells  you  how  it  will  be  in 
his  neighborhood.  You  are  brought,  then,  to  this 
position— that  if  you  mean  to  get  along  at  all,  you 
must  stop  where  you  are,  if  you  cannot  agree, 
if  we  cannot  do  better  than  as  is  proposed  in  the 
amendments  already  offered,  let  us  leave  the  ques- 
tion to  the  wisdom  and  the  disinterested  judgment 
of  the  future.  If  he  could  persuade  the  Conven- 
tion to  adopt  the  proposition  of  the  committee, 
then  the  canals  could  say  to  the  Sovereign,  when 
he  sought  to  fasten  on  their  revenues — we  have 
repaid  you  your  advances,  and  you  have  no  right 
to  tax  us  any  more.  They  would  then  be  guarded 
against  any  unjust  exaction  upon  them  for  the 
future. 

Mr.  PERKINS  said  that  the  county  which  he 
represented  had  as  much  interest  in  these  canals 
as  any  other  in  the  state,  and  had  been  as  much 
injured  as  any  other  by  it.  But  he  believed  they 
were  ready  to  do  justice  to  the  canals.  It  was 
not  claimed  that  the  State  had  advanced  to  them 
more  than  $13,000,000,  and  this  Mr.  HOFFMAN 
proposed  in  his  proposition  to  remunerate.  He 
agreed  with  that  gentleman  as  to  the  policy  of 
taxing  the  right  of  way,  but  there  was  another 
consideration.  The  faith  of  the  state  has  been 
given  to  the  completion  of  these  public  works.— 
On  the  one  hand  it  has  been  claimed  that  they 
could  be  completed  from  the  revenues  of  the  ca- 
nal without  a  resort  to  taxation.  This  is  what 
the  tax  payers  suppose,  but  they  also  pledged 
themselves  that  after  paying  the  debt,  the  canals 
should  by  their  revenues  complete  them.— 
We  had  gone  on,  and  partially  completed,  and  i 
would  be  a  disgrace  to  the  state  to  leave  them  so 


937 


if  the  canal  revenues  would  afford  the  means. — 
He  denied  that  the  people  would  reject  the  Con- 
stitution, if  they  were  obliged  to  be  taxed,  provi- 
ded provision  was  made  ifor  the  payment  of  the 
canal  debt  to  the  general  fund.  In  that  he  inclu- 
ded the  salt  tax.  The  products  of  the  far  west  may 
be  taxed  beneficially  to  the  interests  of  this  state 
without  doing  injustice  to  the  west,  but  to  tax  the 
products  of  this  state  would  be  an  act  of  injustice. 
He  insisted  that  after  paying  the  sum  ot  $200,000 
annually  to  the  general  fund,  that  the  residue  of 
the  revenues  should  be  appropriated  to  internal 
improvement.  He  had  been  among  the  first  to 
denounce  the  debtor  policy— he  had  done  so  in 
every  town  in  his  county,  but  his  constituents 
never  understood  that  beyond  making  restitution 
for  the  advances  from  the  general  fund  from  the 
canals  they  were  to  be  charged.  These  were  the 
positions  he  was  not  disposed  to  swerve  from — 
they  were  the  same  as  taken  in  the  veto  of  last 
spring — and  he  never  would  vote  for  any  other 
proposition. 

Mr.  VAN  SCHOONHOVEN  was  favorably  im- 
pressed with  the  doctrines  set  forth  by  Mr.  PER- 
KINS, and  the  great  difficultyi  with  him  was  to 
perceive  wherein  any  of  those  propositions  re- 
lieved the  people  from  direct  taxation.  If  any 
one  would  offer  a  proposition  which  should  pro- 
vide for  this,  he  would  vote  for  it.  He  would  go 
for  a  proposition  to  pay  the  -  expenses  of  govern- 
ment from  the  revenues  of  the  canal,  before  any 
of  them  were 'appropriated  to  any  other  purpose, 
if  he  could  be  shown  that  the  tax  levied  by  the 
law  of  1842  was  to  be  removed.  He  did  not  agree 
with  the  gentleman  from  Erie,  (Mr.  STOW)  in  his 
suggestion  as  Jo  the  peculiar  claims  of  the  canals. 
He  would  provide  that  the  unfinished  works 
should  be  completed  before  any  other  was  attempt 
ed,  and  this  he  considered  to  be  the  effect  of  the 
-proposition  of  the  gentleman  from  New  York. — 
He  urged  that  the  convention  should  harmonize 
on  that  proposition. 

Mr.  DANA  said  that  when  the  question  was 
agitated  whether  the  report  of  the  judiciary  or 
finance  committees  should  take  precedence,  we 
were  told  that  the  latter  question  was  an  unde- 
bateable  one.  He  believed  tkat  experience  hac 
proven  the  fallacy  of  this.  He  believed  the 
amendment  of  Mr.  WHITE  had  been  about  suffi- 
ciently discussed,  and  he  would  therefore  move 
the  previous  question.  Mr.  D.  however  with- 
drew the  call. 

Mr.  W.  TAYLOR,  wished  to  submit  to  th 
convention   a  proposition,   if   the   pending  one 
should  be  rejected,  which  he  hoped  would  mee 
with  general  assent.     The  committee  had  agreec 
upon  the  proposition  for  the   extinguishment  o 
the  debt  with  most  unanticipated  harmony,  and 
he    hoped  that  the   other   questions  should  b< 
agreed  upon  with  at  least  a  tolerable  approxima 
tion  to  the  same  unanimity   of  sentiment.     Mr 
T.  read  the  proposition,  as  follows : 

After  complying  with  the  provisions  of  the  first  two  pre 
ceding  seciions,  an  equal  oue-third  par;  of  the  surplus  re 
venues  oi  the  canals  shall  be  annually  appropriated  forth 
benefit  of  the  general  fund,  and  the  residue  thereof  sin  h  b 
appreciated  10  the  improvement  and  enlargement,  ol  ill 
Li  10  caual,  until  tiie  sum  thus  appropriated  siiall  amoun 
to  $2,5UO,OOu,  after  that,  the  surplus  revenues  ot  the  canal 
shall  be  appropriated  annually,  at  thediscretion  otthe  leg 
islature,  to  defray  the  expenses  of  tne  government  and  th 
completion  oi  such  public  works  of  internal  improvemen 

92 


s  have  been  commenced  by  legislative  authority,  until 
ley  are  completed,  and  when  such  works  shall,  by  an 
ct  of  the  legislature,  be  declared  completed,  the  sum  of 
>67-2,OflO,  or  so  much  thereof  as  shall  be  necessary,  shall 
e  annually  appropriated  to  defray  the  expenses  of  the 
overnment. 

Mr.  WORD  EN  :  Leave  off  the  last  clause. 

Mr.  TAYLOR  said  the  gentleman  from  Qntario 
ad  the  other  day  offered  the  same  thing. 

Mr.  WORDEN  explained  that  it  was  under  dif- 
erent  circumstances. 

Mr.  W.  TAYLOR,  after  urging  that  this  pro- 
osition  was  one  on  which  he  hoped  all  might 
armonize,  moved  the  previous  question. 

There  was  a  second,  and  the  main  question  or- 
dered. 

The  question  was  then  taken  on  the  amend- 
ment of  Mr.   MANN,  and  there  were  ayes   14, 
ays  97. 

So  the  amendment  was  rejected. 

Mr.  W.  TAYLOR  then  proposed  his  amend- 
ment to  that  of  Mr.  WHITE. 

Mr.  WARD  regretted  to  see  so  much  feeling  on 
;his  subject,  and  really  wished  that  the  matter 
might  be  compromised.  He  saw  no  necessity  for 
ny  amendment  in  this  particular  ;  he  would  pre- 
'er  to  see  the  whole  matter  left  to  the  legislature. 
We  had  with  great  unanimity  provided  for  the 
Dayment  of  the  debt,  and  in  his  opinion,  all  that 
•ernained  to  be  done  was  to  restrain  the  legisla- 
ture in  its  power  to  create  further  debts  without 
a  submission  to  the  people.  These  public  works, 
great  and  splendid  as  they  were,  were  commenced 
and  completed  by  the  legislature,  and  he  believed 
they  could  be  safely  trusted  hereafter.  The  sur- 
plus revenue  this  year  was,  deducting  repairs, 
some  $2,000,000,  and  deducting  the  sums  already 
appropriated  here  for  the  payment  of  the  debt, 
there  remained  $500,000  to  be  disposed  of. — 
Such  disposal  he  was  willing  to  leave  to  the  le- 

islature — he  had  the  fullest  confidence  in  their 

iscretion.  But  he  was  entirely  unwilling  to 
specifically  appropriate  this  money  in  the  Con- 
stitution, and  to  require  the  whole  of  it  to  go  to 
the  public  works,  without  reference  to  the  ex- 
penses of  government.  In  that  point  of  view, 
the  proposition  of  Mr.  T.,  he  thought,  was  pre 
ferable  to  many  others  that  had  been  proposed. — 
On  the  whole,  his  view  was,  that  it  would  be 
better  to  leave  the  whole  matter  to  the  legisla- 
ture. He  would  never  go  for  any  proposition 
which  should  fasten  direct  taxation  upon  the  peo- 
ple forever,  unless  removed  by  constitutional 
amendment. 

Mr.  MARVIN  agreed  with  the  gentleman  that 
it  was  altogether  better  to  let  this  matter  rest  with 
legislatures  than  to  do  certain  things, one  of  which 
was  to  adopt  Mr  TAYLOR'S  proposition.  But  he 
did  not  agree  that  that  was  the  only  alternative. 
He  denied  that  this  proposition  was  a  comprom- 
ise, and  insisted  that  it  was  unjust  to  the  canals. 
He  objected  to  the  requirement  that  after  the  $2,- 
500,000  should  have  been  appropriated  to  the 
Erie  canal,  that  then  the  money  should  be  appro- 
priated in  the  discretion  of  the  legislature  to  the 
canals,  after  paying  the  expenses  of  government, 
until  they  should  pass  an  act  declaring  the  works 
to  be  completed. 

Mr.  W.  TAYLOR  insisted  that  these  funds 
were  not  appropriated  in  his  proposition,  special- 
ly to  the  expenses  of  government. 


938 


Mr.  MARVIN  said  that  it  was  left  to  the  discre- 
tion of  the  legislature.  What  he  desired  was,  to 
settle  the  matter  here  now.  That  was  the  great 
difference.  He  had  hoped  for  a  compromise, 
he  confessed  he  now  began  to  despair. 

Mr.  STETSON  said  that  these"  canals  should 
not  be  local  works  at  one  time,  ahd  state  at  anoth- 
er. By  the  time  the  debts  were  paid  off  it  would 
be  fiftyjyears  from  the  commencement  of  the  canal 
policy.  He  agreed  that  the  sovereign  should  not 
tax  the  right  of  way,  but  remuneration  was  due 
it  for  this  long  period  of  time  devoted,  as  well  as 
the  advances  of  money  paid  to  the  construction 
of  these  works.  There  was  therefore  a  broader 
demand  entitled  to  be  made  by  the  counties  not 
interested  in  these  works,  than  for  the  mere  re- 
muneration of  money  advanced.  This  was  the 
only  way  in  which  this  matter  could  be  realized. 
It  was  by  averting  from  them  hereafter,  that  eter- 
nal scourge  of  nations — taxation.  Mr.  S.  further 
urged  this  view  of  the  subject.  Upon  the  basis 
that  the  Convention  had  proceeeded,  the  annuity 
from  the  canals  should  be  $322,000  forever  ;  that 
would  only  be,  even  then,  a  remuneration  for  the 
money  advances  made,  to  say  nothing  of  the  time. 
The  sum  of  $200,000  was  insufficient  for  this 
purpose,  that  did  not  leave  even  enough  for  the 
support  of  government.  He  expressed  himself 
in  favor  of  the  suggestion  of  Mr.  WARD,  and 
characterized  this  matter  of  attempting  to  secure 
appropriations  for  canals,  as  derogatory  to  the 
Convention. 

Mr.  LOOMIS  said  that  after  the  provision  made 
for  the  payment  of  the  debt,  he  had  no  fears  that 
the  Constitution  would  be  injected  by  anything 
omitted.  He  feared,  however,  it  would  be  hazard- 
ed by  what  might  be  inserted.  We  had  witness- 
ed here  for  the  last  two  days,  a  scramble  of  locali- 
ties for  the  revenues  of  thesu  works,  in  advance 
of  future  legislation  Thjs  betrayed  a  distrust  of 
the  future.  These  canals  did  not  belong  to  loca- 
lities— they  were  the  property  of  the  whole  people, 
and  if  occasion  should  require  it,  the  legislature, 
the  representatives  of  the  whole  people  would 
make  ample  provision  tor  them.  He  had  no  fears 
of  the  future.  As  to  the  idea  that  there  would  be 
a  scramble  among  the  people  around  the  Legisla- 
ture for  this  money,  and  the  necessity  of  guard- 
ing against  it,  we  should,  on  the  same  principle, 
guard  against  the  annual  scramble  for  offices, 
which  took  place  among  the  people  at  the  annual 
election.  There  was  nothing  in  the  idea;  he 
thought  it  would  be  perfectly  right  to  leave  it  to 
the  legislature  with  the  restraints  that  it  was  pro- 
posed  to  throw  around  it.  All  we  had  to  do  here 
was  to  take  care  of  the  debt,  and  to  leave  the  fu- 
ture to  take  care  of  itself.  After  providing  for 
that  debt,  we  had  nothing  to  do  with  further  ap- 
propriations. iVlr.  L.  continued  in  examination  of 
several  propositions,  contending  that  the  effect  of 
them  would  be,  to  fix  a  direct  lax  upon  the  peo. 
pie  perpetually  in  the  Constitution.  This  would 
be  certain  to  ensure  the  rejection  of  the  Constitu- 
tion in  his  opinion. 

Mr.  STOW  denied  that  the  Convention  had 
adopted  with  great  unanimity  a  provision  for  the 
payment  of  the  debt.  It  was  well  understood  that 
a  provision  was  to  be  made  for  the  appropriation 
of  the  surplus  revenues  for  the  future,  and  if  this 
was  not  done,  gentlemen  would  find  no  such  una- 


nimity on  the  final  vote.  He  admitted  that  he  en- 
tertained a  distrust  for  the  Legislature  in  this 
matter — he  would  not  turn  this  great  fund  over  to- 
the  tender  mercies  of  the  Legislature.  The  gen- 
tleman from  Herkimer  must  entertain  the  same 
distrust,  or  why  should  he  seek  to  provide  for  the 
payment  of  the  debt  ?  why  not  leave  it  to  Legis- 
lation, to  the  future  ?  Why  make  a  Constitution 
at  all.  if  it  was  not  to  guard  against  the  future. — 
Mr.  S.  further  urged  his  view  of  this  subject,  and 
insisted  that  after  the  canal  interest  had  yielded  as 
much  as  it  had,  that  justice  demanded  that  the 
other  interests  should  meet  them  halfway,  and 
yield  this  point  in  return.  He  objected  to  it  as 
unwise  and  impolitic  to  leave  this  matter  to  the 
future  scramble  of  localities,  or  the  conflicts  of 
party. 

Mr.  W.  TAYLOR  was  not  willing  to  believe 
that  there  was  a  spirit  of  opposition  here,  but  it 
seemed  to  him  that  there  was  to  any  proposition 
emanating  from  a  certain  quarter.  The  gentle- 
man from  Chautauque  (Mr.  MARVIN)  and  those 
who  acted  with  him  he  had  understood  to  be  in 
favor  of  Mr.  AYRAULT'S  proposition  which  left 
this  matter  to  the  legislature,  and  yet  when  he 
(Mr.  T.)  introduced  a  proposition  identical  al- 
most in  language  with  it,  they  opposed  to-day 
what  they  so  earnestly  advocated  yesterday.  Mr. 
T.  further  urged  his  proposition  as  a  measure  of 
compromise,  and  as  affording  a  common  ground 
on  which  all  interests  might  be  harmonized 

Mr.  MARVIN  rose  to  correct  a  misapprehen- 
sion in  which  the  gentleman  from  Onondaga  (Mr, 
TAYLOR)  appeared  to  have  fallen.  He  was  in 
favor  of  closing  up  this  matter  if  it  could  by  any 
compromise.  The  difference  between  him  and 
gentlemen  was  this,  he  wished  to  get  all  the  mo- 
ney he  could  for  the  next  five  years  for  the  ca- 
nals, and  to  know  exactly  how  much  money  was 
to  go  into  the  treasury.  Mr.  M.  urged  that  the 
proper  course  was  to  complete  the  works  at  the 
earliest  moment. 

Mr.  TILDEN  said  that  a  stranger  who  had  lis- 
tened to  the  discussion  of  to-day,  would  not  sus- 
pect that  the  proposition  to  leave  the  application 
of  the  surplus  revenues  in  the  discretion  of  the 
legislature,  had  originated  with  the  very  gentle- 
men from  whom  all  this  opposition  now  came. — 
He  showed  that  the  plan  of  Mr.  AYRAULT  and 
of  Mr.  BOTJCK  distinctly  proposed  to  allow  the 
surplus  to  be  used  for  the  current  expenses  of  go- 
vernment ;  and  he  had  the  very  best  authority  for 
asserting  that  JVlr.  STOW'S  amendment  contem- 
plated leaving  it  at  the  disposal  of  the  legislature. 
All  the  different  propositions  which  gentlemen 
had  favored,  contained  the  feature  at  wh'ich  they 
are  now  so  much  alarmed  and  exasperated.  In 
order  to  reduce  the  amount  applied  to  the  pay- 
ment of  the  debt,  the  inducement  had  been  held 
out  to  the  members  from  constituencies  who  were 
not  interested  in  the  expenditures  for  the  canals, 
that  the  government  should  be  carried  on  without 
taxation,  and  that  the  amount  to  be  withheld  from 
the  payment  of  the  debt  should  be  put  into  the 
treasury.  A  stranger  who  had  heard  the  violent 
denunciations  with  which  for  four  days  the  stand- 
ing committee  were  visited  for  their  proposition 
for  a  final  adjustment  between  the  canals  and  the 
treasury,  would  not  suppose  that  they  were  utter- 
ad  by  gentlemen  who  yesterday  voted  for  the 


939 


<lim>nt  of  Mr.  BOUCK,   containing  precisely1 
tine  tiling.     The  committee  proposed  to  pay 
an  annul  I  v  "i,   from   the  canals  to  the 

treasury  ;"and,  assailed  as  that  provision  had  been, 
the  same  gen.lemen  not  only  vote  for  it  in  the 
amendment  of  Mr,  BOUCK»  but  some  of  them  sug- 
gest a  still  larger  amount ! 

Mr.  MARVIN  said  the  point  was  here.  The 
gentleman  from  Schoharie  had  come  upon  the 
exact  ground  of  the  committee,  and  yet  the  com- 
mittee were  opposing  him. 

Mr.  TILDEN  replied  that  other  things  were 
mingled  with  the  proposition  for  settlement  which 
were  very  objectionable.  He  continued  further 
to  review  the  course  of  the  discussion.  He  was 
ready  to  return  to  the  proposiiion  of  the  commit- 
tee ;  but  if  no  wise  and  proper  prevision  for  the 
public  works  could  be  made  without  arraying  lo- 
calitie^feainst  the  constitution,  he  would  be  con- 
tent to  Treavc  the  question  to  the  legislature. — 
He  argued  that  the  plan  of  the  committee — to 
make  an  equitable  adjustment  between  the  canals 
and  the  treasury,  constituting  of  the  surplus  in 
some  sort  a  trust  fund  to  be  administered,  by 
the  legislature  for  the  improvement  of  the  works, 
the  reduction  of  tolls,  and  the  accommodation  of 
business,  was  a  wise  and  liberal  policy  both  with 
reference  to  the  interests  of  the  tax-payers  and  of 
the  canals  ;  he  commented  on  the  unforunate  di- 
rection given  ;o  the  discussion  by  those  who 
claimed  to  be  the  special  friends  of  the  canals ; 
and  expressed  regret  that  if  the  interests  of  the 
great  work  which  is  the  honor  and  pride  of  the 
state  was  to  be  sacrificed,  these  gentleman  should 
officiate  at  the  ceremonial. 

Mr.  WHITE  moved  the  previous  question  on 
his  amendment,  and  the  pending  amendment  to  it. 

There  was  a  second  and  the  main  question  or- 
dered. 

The  question  was  then  taken  on  Mr.  TAY- 
LOR'S amendment,  and  there  were  ayes  29,  nays 
SQ,  as  follows: 

AYES -Messrs.  Allen,  Bergen,  Brown,  Brundage,  Cam. 
breleng,  Conely,  Cuddeback,  Dubois,  Greene,  A  Hunting- 
ton,  Kemblcj  Kennedy,  Kingsley,  Loomis,  Munro,  Mur- 
phy, iNicoll,  Hiker,  Russell,  Shaw,  Sheldon,  Stephens, 
Taft,  J.  J.  Ta)  lor,  W.  Taylor,  Townsend,  Wood,  Yawger 
—29. 

NAYS— Messrs.  Angel,  Archer,  Ayrault,  F  F.  Backus, 
H.  Backus,  Baker,  Bascom,  BOUCK,  Bray  ton,  Bruce,  Bull, 
Burr,  D.  D.  Campbell,  R.  Campbell,  Jr.,  Candee,  Chamber- 
lain, Clyde,  Clark,  Cook.  Cornell,  Crooker,  Dana,  Dan- 
torth,  Dodd,  Dorlon,  Flanders, Gardner, Gebhard,  Graham, 
Harris,  Harrison,  Hart,  Hawley,Hon"man,Hotchkiss,Hunt, 
E  Huntington,  Hutchinson,  Hyde, Kernan  Kirkland, Mann, 
McNeil,  McNitt,  Marvin,  Maxwell,  Morris,  Nellis,  JSicho- 
las,  O'Conor,  Parish,  Patterson,  Penuiman,  Porter,  Powers, 
President.Rhoades.Richmond.Kuggles.St  John,  Salisbury, 
Sanford,  Sears,  Shepard,  Simmon^,  Smith,  E.  Spencer,  W. 
H.  Spencer,  Stanton,  Stetson,  Stow,  Strong,  Taggart,  Tall- 
madge, Tilden,  Tu thill,  Yacht;,  Van  Schoonhoven,  Ward, 
Warren,  Waterbury,  White,Witbeck,Worden,  A.Wright, 
Youngs-  86 

So  the  amendment  was  rejected. 

The  question  was  then  taken  on  the  amend- 
ment of  Mr.  WHITE,  and  there  were  ayes  62, 
noes  5-),  as  follows: 

AYES— Messrs.  Allen,  Angel,  Archer,  Ayrault,  F.  F. 
Backus,  11.  liackus,  Baker,  Bascom,  Bouck,  Brayton, 
Bruce,  Bull,  D.U.  Campbell,  Candee,  Chamber  lain,  Cone- 
ly, Crooker,  Dana,  Dodd,  Dorlon,  Gardner,  Gebhard,  Har- 
ris, liairison,  llawley,  llotchkiss,  E  Hnntington,  Hyde, 
Kemble,  Kingsley,  Kirkland,  McNitt,  Marvin,  Maxwell, 
Morris,  Murphy,  Nicholas,  O'Conor,  Parish,  Patterson, 
enniman,  Perkins,  Porter,  Rhoadcs,  Richmond,  Russell, 


Salisbury,  Shaw,  Smith,  E  Spencer,  W.  H.  Spencer,  Stan- 
ton,  Strong,  Ta!t,  Taggart,  Tallmadge,  Townsend,  Van 
Schoonhoven,  Warren,  White,  A.  Wright,  Yawger— 62. 

NAYS — Messrs.  Bergen,  Brown,  Brundage,  Burr,  Cam- 
breleng,  R.  Campbell  jr.,  Clark,  Clyde,  Cook,  Cornell, 
Cudileback,  Danlorth,  Dubois,  Flanders,  Graham,  Greene, 
Hart,  Hoffman,  Hunter,  A.  Huntington,  Hutchinson,  Jones, 
Kennedy,  Kernan,  Loomis,  Mann,  NcNeil,  Munro,  Nellis, 
Nicoll,  Poweis,  President,  Riker,  Ruggles,  St.  John,  San- 
ford,  Sears,  Sheldon,  Shepard,  8immons,Stepbens,  Stetson, 
Stow,  Swackhamer,  J.  J.  Taylor,  W.  Taylor,  Tilden,  Tut- 
hill,  Vache,  Ward,  Waterbury,  Witbeck,  Wood,  Worden, 
Youngs— 55. 

So  the  amendment  was  carried. 
The  question  was  then  taken  on  the  section  as 
amended  and  it  was  adopted,  ayes  64,  nays  52. 

AYES— Messrs.  Allen.  Angel,  Archer,  Ayrault,  F.  F. 
Backus,  H  Backus,  Baker,  Bascom,  Bouck,  Brayton, 
Bruce,  Bull,  D.  D.  Campbell,  Candee,  Chamberlain,  Cone- 
ly, Crooker,  Dana,  Daniorth,  Dodo,  Dorlon,  Gardner, 
Gebhard,  Harris,  Harrison,  Hawley,  Hotchkiss,  E.  Hunt- 
ington, Hyde,  Kemble,  Kingsley,  Kirkland,  Mann, McNitt. 
Marvin,  Maxwell,  Morris,  Murphy,  Nicholas,  O'Conor, 
Parish,  Patterson,  Penniman,  Perkins,  Porter,  Rhoades, 
Richmond,  Russell,  Salisbury,  Shaw,  Smith,  *..  Spencer, 
W.  H.  Spencer,  Stanton, Strong,  Taft.Tajjgart,  Tallmadge, 
Townsend,  Van  Schoonhoven,  Warren,  White,  A. Wright, 
Yawger — 64. 

NOES— Messrs,  Bergen,  Bowdish,  Brown,  Brundage, 
Burr,  Cambreleng,  R.  Campbell,  jr.  Clark.  Clyde,  Cook, 
Cornell,  Cuddeback,  Dubois,  Flanders,  Grahsm  Greene, 
Hart,  Hoffman,  Hunt,  Hunter,  A.  Huntington,  Hutchin- 
son, Jones,  Kennedy,  Kernan,  Loomis,  McNeil,  Mun- 
ro, Nellis,  Nichol,  Powers,  President,  Riker,  Ruggles, 
St.  John,  Sanford,  Sears,  Sheldon,  Shepard,  Simmons,  Ste- 
phens,  Stetson,  Swackhamwr,  J.  J.  Taylor,  W.  Tcylor, 
Tilden,  Tuthill,  Vache,  Waterbury,  Witbeck,  Wood, 
Youngs— 62. 

So  the  resolution,  as  amended,  was  adopted. 

Mr.  STRONG  moved  an  adjournment,  but 
withdrew  it  at  the  request  of 

Mr.  HOFFMAN  who  reported  the  section  in 
obedience  to  the  instructions  just  given  by  the 
Convention. 

The  Convention  then  took  a  recess. 


AFTERNOON  SESSION. 

The  PRESIDENT  said  that  he  was  clearly 
wrong  in  the  decision  he  made  yesterday,  to  the 
effect  that  a  motion  to  lay  an  amendment  on  the 
table  did  not  carry  with  it  the  original  section. — 
He  had  since  consulted  parliamentary  law. 
FINANCES  AND  CANALS. 

The  third  section  of  the  financial  article  as  re- 
ported by  Mr.  HOFFMAN  this  morning  under  in- 
structions was  then  taken  up,  as  follows: 

{58  After  paying  the  saul  expenses  or.  superintendence 
and  repairs  of  the  canals,  and  the  sums  appropriated  by  the 
first  and  second  sections  of  this  article,  there  snail  be  paid 
out  of  the  surplus  revenues  of  the  canals,  to  the  treasury 
of  the  state,  on  or  before  the  thirtieth  dav  ot  September,  in 
each  year,  for  the  use  and  benefit  oi  tne  general  fund,  such 
sum,  not  exceeding  $200,000,  as  may  be  required  to  defray 
the  necessary  expenses  ot  the  stote;  and  the  remainder  oC 
the  revenues  of  the  said  canals  shall,  in  each  fiscal  year, 
be  applied,  in  such  manner  as  the  legislature  shall  direct, 
to  the  completion  ot  the  Erin  canal  enlargement,  and  the 
Genrsee  Valley  and  Black  River  canals,  until  the  said  ca- 
nals shall  be  completed. 

Mr.  HOFFMAN  said  he  reported  this  because 
he  had  been  ordered  to  do  so,  and  to  save  him- 
self from  being  treated  for  contempt  of  the  house, 
not  because  he  assented  to  do  it;  if  other  mem- 
bers of  the  committee  choose  to  take  a  different 
course  now  was  their  time  to  do  so.  (Laughter.) 

Mr.  W.  TAYLOR  moved  to  amend  the  section, 
by  including  the  Oneida  river  improvement,  Mr. 
T.,  by  consent,  explained  that  $73,000  had  been 


940 


for  the  improvement  of  the  outlet  of 
the  Oneida  lake,  and  that  but  $69,000  had  been 
expended.  It  would  propably  require  about  $15,- 
000  to  complete  it.  Without  such  an  amendment 
no  appropriation  could  be  made  for  that  improve- 
ment. 

Mr.  MURPHY  asked  the  gentleman  from  On- 
ondaga  whether,  if  the  section  was  amended,  as 
proposed,  he  would  vote  for  it  ? 

Mr.  W.  TAYLOR :— Frankly,  I  will  say,  I 
shall  not. 

Mr.  WHITE  moved  the  previous  question. 

There  was  a  second,  &c. 

Mr.  W.  TAYLOR  offered  to  accept  Mr.  LOO- 
MIS'  proposition  as  an  addition  to  his  own.  (But 
it  was  too  late  to  amend.) 

Mr.  SWACKHAMER'S  motion  was  lost;  Mr. 
W.  TAYLOR'S  also — ayes  43,  noes  62,  as  follows  : 

AYES— Messrs.  Angel,  Archer,  Bouck.  Brown,  Bruce, 
Cambi  eleng,  Candee,  Chamberlain,  Chatfield,  Clark,  Cook, 
Crocker,  Cuddeback,  D.ma,  Danforh,  Dubois,  Gebhard, 
Graham,  Greene,  Hart,  Kingsley,  Kirkland,  Loomis.  Mc- 
Neil, Morris,  Munro,  Ne.Uis,  Perkins,  Rhoades,  Ruggles, 
St.  John,  Sears,  Smith,  Swackhamer,  J.  J.  Taylor,  W. 
TayJor,  Townsend,  Van  Schoonhoven,  Warren,  Witbeck, 
A.  Wright,  Yawger,  Youngs— 43. 

NOES— Messrs.  Allen,  Ayrault,  F.  F.  Backus,  H.  Back- 
us, Baker,  Bascom,  Bergen,  Bowdish,  Brayton,  Brundage, 
Bull,  Burr,  D.  D.  Campbell,  Clyde,  Conely,  Cornell,  Dodd, 
Dorlon,  Flanders,  Gardner,  Harrison,  Hoffman,  Hotchkiss, 
Hunter,  A.  Huntington,  Hutchinson,  Hyde,  Jones,  Kern- 
ble,  Kernan,  Mann,  McNitt.  Marvin,  Murphy,  Nicholas, 
Nicoli,  O'Cpnor,  Parish,  Patterson,  Penniman,  Powers, 
President,  Richmond,  Riker,  Russell,  Salisbury,  Sanford, 
Shaw,  Sheldon,  Shepard,  E.  Spencer,  W.  H.  Spencer,  Ste- 
phens, Stetson,  Stow,  Strong,  Taft,  Taggart,  Tallmadge, 
Tuthill,  Vache,  Waterbury,  White,  Wood— 62. 

The  section  reported  by  Mr.  HOFFMAN,  un- 
der instructions,  was  adopted,  ayes  63,  noes  50, 
as  follows : — 

AYES— Messrs.  Allen,  Angel,  Archer,  Ayrault,  F.  F. 
Backus,  H. Backus  Baker,  Bascom,  Bergen,  Bouck,  Bray- 
ton,  Bruce,  Bull,  D.  D.  Campbell,  Candee,  Chamberlain, 
Coneiy,  Crooker,  Dana,  Dantorth,  Dodd,  Dorlon,  Gardner, 
Gebhard,  Harris,  Harrison,  Hawley,  Hotchkiss,  E.  Hun- 
tington, Hy-ie.  Kemble,  Kirkland,  Mann,  McNitt,  Marvin, 
Maxwell,  Morris  Murphy,  Nicholas,  O'Conor,  Parish, 
Patterson,  Pennimau,  Perkins,  Rhoades,  Richmond,  Rus- 
sell,  Salisbury,  Shaw,  Smith,  E.  Spencer,  W.  H.  Spencer, 
Strong,  Taft,Taggart, Tallmadge. Townsend, Van  j-choon- 
hov«n,  Warren,  White,  Warden,  A.  Wright,  Yawger.— 63. 

NOES — Messrs.  Bowdish,  Brown,  Brundage,  Burr, 
Cambreleng,  Chatfiwli!,  Clark,  Clyde,  Cornell,  Cndde- 
back,  Dubois,  Flanders,  Graham,  Gn;ene,  Hart,  Hofi'man, 
Hunt,  Hunter,  A.  Hutchinson,  Jonns,  Kernan,  Kingsley, 
Loomis,  McNeil,  Muuroe,  Nellis,  Nicoli,  Powers,  Presi. 
dent,  Riker,  Ruggles,  St.  John,  Sanlbrd,  Sears,  Sheldoa, 
fchepard,  Stephens,  Stow,  Swackhamer,  J.  J.  Taylor. 
"W.  Tavlor,  Tiiden,  Tuthill,  Vache,  Waterbury,  Witbeck, 
Wood,  Youngs— 50. 

The  fifth  section  (now  the  fourth)  of  the  origi- 
nal report  was  then  read,  as  follows  : — 

^4.  The  claims  of  the  state  against  any  incorporated 
company  to  pay  the  interest  and  redeem  the  principal  of 
the  stock  of  the  state  loaned  or  advanced  to  such  company, 
and  the  moneys  arising  from  such  claims,  shall  be  set  upart 
and  applied  as  a  part  of  the  sinking  fund  provided  in  the 
second  section  of  this  article. 

Mr.  J.  J.  TAYLOR  moved  to  add  to  the  sec- 
tion, as  follows : — 

"  But  tne  time  limited  for  the  fulfilment  of  any  condition 
of  any  release  or  compromise  heretofore  mady  or  provided 
lor,  may  be  extended  by  law." 

Mr.  HOFFMAN  said  that  he  had  not  the  slight- 
est objection  to  this  ;  and  he  would  have  reported 
it,  had  he  supposed  there  had  been  the  slightest 
necessity  for  it. 

Mr.   PATTERSON    remarked   that  the  word 


"defined"  having  been  stricken  out,  the  Legisla- 
ture would  have  this  power. 

Mr.  HOFFMAN  thought  so— but  the  gentle- 
man from  Tioga  thinks  not. 

Mr.  J.  J.  TAYLOR  had  looked  into  this  matter 
with  some  care,  and  he  thought  there  was  doubt 
about  it. 

Mr.  T.'s  amendment  was  adopted,  as  was  the 
section,  as  amended. 

The  sixth  (now  fifth)  section  was  then  read,  as 
follows  : 

§  5.  If  the  sinking  funds,  or  either  of  them  provided  in 
this  article,  shall  prove  insufficient  to  enable  the  state,  on 
the  credit  of  such  fund,  to  procure  the  means  to  satisfy  the 
claims  oi  the  creditors  of  the  state  as  they  become  payable, 
the  Legislature  shall,  by  equitable  taxes,  so  increase  the 
revenues  of  the  said  fund  as  to  make  them,  respectively, 
sufficient  perfectly  to  preserve  the  public  faith.  Every 
contribution  or  advance  to  the  canals,  or  their  debt, from 
any  source  other  than  their  direct  revenues,  shall,  with 
quarterly  interest,  at  the  rates  then  current,  be  repaid  into 
the  treasury,  for  the  use  of  the  state,  out  ol  tlMg>anal  reve- 
nues, as  soon  as  it  can  be  done,  consistentlylWh  the  just 
rights  of  the  creditors  holding  the  said  canal  debt. 

The  section  was  agreed  to,  without  debate. 

The  seventh  (now  sixth)  section  was  then  read, 
as  follows : 

(}  7.  The  Legislature  shall  not  sell,  lease,  or  otherwise 
dispose  of  any  of  the  canals  of  the  state;  but  they  shall  re- 
main the  property  of  the  state  and  under  its  management 
forever. 

Mr.  BURR  moved  to  amend  by  striking  out  "any 
of  the,"  in  the  second  line,  and  inserting  "  Erie 
and  Champlain  ;"  and  also  to  strike  out  "of  the 
state,"  after  "canals." 

Mr.  WATERBURY  demanded  the  ayes  and 
noes,  and  the  amendment  was  negatived — ayes  18, 
noes  79 

The  section  was  then  agreed  to,  without  amend, 
tnent 

Mr.  RHOADES  moved  the  additional  section 
proposed  by  him  yesterday,  in  relation  to  the  salt 
springs.  Mr.  R.  remarked  that  under  the  present 
Constitution,  the  state  was  not  alloAed  to  sell  the 
lands  contiguous  to  the  springs.  There  were  now 
549  acres  of  these  lands,  which  might  be  sold  for 
$'1500  orijp200U  per  acre,  and  the  object  of  the  sec- 
lion  was  to  allow  the  state  to  dispose  of  the  pre- 
sent lands  and  invest  the  proceeds  in  others  more 
convenient  to  the  state,  those  now  held  being  too 
high,  the  aggregate  quantity  not  to  be  diminished. 

The  section  was^agreed  to. 

The  article  having  been  gone  through,  Mr. 
HOFFMAN  moved  its  printing,  as  amended. — 
Agreed  to. 

STATE  DEBT-SPECIFIC  APPROPRIATIONS. 

Mr.  HOFFMAN  now  moved  to  take  up  theSd 
article,  as  reported  by  the  committee  on  finances. 

The  first  section  was  read,  as  follows  : 

ks  1.  No  moneys  shall  ever  be  paid  out  of  the  treasury  of 
this  State,  or  any  of  its  funds,  or  any  of  the  funds  under  its 
management,  except  in  pursuance  of  an  appropriation  by 
law  ;  nor  u.iless  such  payment  be  made  within  two  years 
next  after  the  passage  of  such  appropriation  act;  and  every 
such  law  making  a  new  appropriation,  or  continuing  or 
reviving  an  appropriation,  shall  distinctly  specify  the  sum 
appropriated,  and  the  object  to  which  it  is  to  be  applied  ; 
and  it  shall  not  be  sufficient  for  such  law  to  refer  to  any 
other  law  to  fix  such  sum. 

Mr.  HOFFMAN  rose  and  said  that  under  other 
circumstances  perhaps  he  might  have  thought 
that  it  was  desirable  to  'make  some  remarks  in 
explanation  here,  but  after  what  had  occurred, 
he  certainly  did  not  feel  it  necessary  to  make  anv 


941 


extended  observations  in  relation  to  this  article. 
It  was  now  quite  certain  that  in  the  future,  as  in 
the  past,  whatever  debts  may  hereafter  exist,  or 
new  OIKS  be  created,  they  will  be  made  chargea- 
ble ultimately  upon  the  tolls  derived  from  the 
Erie  canal.  Every  friend  of  cheap  travel  and 
transportation  must  see  that  if  we  intend  to  guard 
these  canals  from  heavy  tolls  and  taxes,  that  it 
must  be  done  by  a  fair  and  effectual  restraint  up- 
on the  legislature  from  creating  or  having  the 
power  to  create  debts.  This  is  absolutely  neces- 
sary also,  in  order  to  secure  a  safe,  free  and  re- 
sponsible government.  The  legislature  must  be 
properly  restricted  in  this  power  to  create  debts. 
Every  administration,  federal,  state  and  munici- 
pal, should  collect  and  pay  as  it  went.  If  we 
cannot  enforce  that  wholesome,  salutary  and  in- 
dispensable rule,  every  administration  would 
leave  burthens  for  the  future,  growing  out  of  the 
excesses  of  the  past,  and  severe  taxation,  or  what 
is  worse,  repudiation,  the  meanest  of  all  things 
on  God's  earth,  must  come  out  of  it.  He  desired, 
above  all  things,  to  establish  specific  appropria- 
tions. We  have  recommended  this  section 
with  a  view  of  permanently  establishing  by 
constitutional  provision  the  doctrine  of  spe- 
cific appropriation.  It  does  oblige  the  le- 
gislature to  look  over  the  condition  of  the  State 
Finances,  the  expenditures  and  income,  at  least 
once  in  every  two  years ;  and  to  fix  upon  the  face 
of  the  statute  what  money  shall  be  paid  out  in 
each  year.  By  the  present  Revised  Statutes,  as 
he  said  before,  if  the  executive  had  but  a  corpo- 
ral's guard  to  drive  off  the  legislature,  the  gov- 
ernment could  go  on  for  50  years  without  it.  Su 
long  as  there  was  money  in  the  Treasury  the  public 
officers  would  ho  paid  ;  the  power  and  duty  to 
pay  all  demands  against  the  treasury  being  vest- 
ed in  the  pvblic  officers;  and  if  there  was  no 
money  in  the  treasury  the  comptroller  would  go 
into  the  market  and  borrow  it,  and  give  the  bonds 
of  the  State  for  the  payment  of  it ;  and  when  they 
become  due,  if  there  was  still  no  money  to  meet 
them  in  the  treasury,  he  could  again  go  into  the 
market,  and  borrow  again  to  repay  them.  The 
two  years  limitation  was  inserted  to  prevent  this 
state  of  things;  and  he  preferred  this,because  under 
the  new  state  of  things  the  Senate  were  to  be  a  new 
body  every  two  years.  This  would  compel  every 
new  Legislature  to  see  what  money  went  for  this, 
and  what  for  that  object,  and  the  people,  by  read- 
ing the  statutes,  could  then  get  some  idea  of  how 
the  money  went,  where  it  went,  and  how  much 
was  paid  annually  to  carry  on  the  government. 
He  hoped  this  section  would  meet  the  same  unani- 
mous assent  in  the  committee  that  it  had  met  in 
the  finance  committee  and  unless  there  was  some 
opposition  to  it,  he  would  say  no  more  about  it. 

Mr.  KIRKLAND  asked  what  would  be  the 
effect  by  this  provision  on  a  person,  having  a 
claim  against  the  state  and  in  whose  behalf  an 
act  of  appropriation  had  been  passed,  if  he  should 
accidentally  omit  to  apply  for  payment  in  their 
two  years  : 

Mr.  HOFFMAN   replied,  that  if  A,  having  a 
claim  against  the  state,  neglected   for   two 
after  the  money  was  appropriated,    to  come  and 
get  it,  then  a  new  appropriation  must  be  made. 

Mr.  WORDEN  said  that  he  most  fully  concur- 
ed  in  the  object  which  he  supposed  that  Mr.  HOFF- 


MAN had  in  view.  We  fastened  on  these  canals 
a  very  heavy  charge  ;  we  had  entailed  on  them, 
the  payment  of  the  entire  debt  of  the  state  ;  and 
it  was  no  more  than  just  that  in  future  these  ca- 
nals should  not  be  encumbered  by  caprices  or  un- 
wise legislation.  In  view  of  the  burthens  which 
had  been  imposed  upon  the  canals,  and  the  ne- 
cessity of  keeping  open  these  great  avenues  of 
trade  with  the  great  west  he  submitted  that  the 
Constitution  should  provide  that  its  revenues, 
aside  from  that  portion  appropriated  to  the  pay{| 
ment  of  the  State  debt,  should  go  to  no  other  pur- 
pose than  their  improvement.  He  moved,  there- 
fore, to  amend  the  section  : — 

"Nor  shall  the  revenues  of  the  canals  of  this  State,  ex- 
cent  as  herein  provided,  be  appropriated  or  8p;>li«)  to  any 
other  purpose  than  the  reparation  arid  improvement  ot  the 
said  cauals,  ana  such  expenses  and  charges  as  are  incident 
thereto." 

Mr.  HOFFMAN  said  that  he  thought  there 
was  no  necessity  to  embarass  this  article  with  the 
same  provisions  which  had  been  placed  upon  the 
unfortunate  article  which  had  just  been  adopted. 

Mi-.  WORDEN  said  it  was  impossible  to  sup- 
pose that  the  expense  ot  laud  vvus  not  a  necessary 
cost  ot  the  canals  themselves. 

Mr.  PERKINS  suggested  difficulties  that  might 
arise  frotn  breaking  away  ol  the  canal,  &c.,  and 
l)e  doubted  very  much  whether  there  was  any- 
thing in  the  language  that  would  allow  the  dama. 
ges  Resulting  therefrom  to  be  defrayed  from  the 
canal  revenues. 

Mr.  WORDEN  said  he  would  vary  his  amend, 
ment  so  as  to  meet  this  objection. 

Mr.  HOFFMAN  said  that  so  far  as  related  to 
the  specific  appropriation  and  charges  made  in  the 
article  just  passed,  there  was  no  necessity  of  re. 
peating  them  here,  and  the  quarrels  that  hung 
upon  them.  Such  an  amendment  was  entirely 
unnecessary,  and  uncalled  lor.  The  aiticie,  as  it 
siood,  would  effectually  protect  the  canal  revenues 
as  appropriated  in  the  last  article.  He  hoped  the 
gentleman  would  therefore  withdraw  his  amend- 
ment. There  was  another  point.  It  was  the 
practice  of  appropriate  laws  to  say  instead  ot 
specifying  the  fund,  to  re-appropriate  what  had 
been  done  in  some  former  law.  Nu  one  could, 
therefore,  understand  what  was  referred  to,  and 
this  was  sought  to  be  guarded  against. 

Mr.  WORDEN  said  that  his  desire,  in  offering 
this  amendment,  was  to  ascertain  if  Mr.  H'<FK- 
MAN'S  construction  of  the  article  was  the  same  as 
his  own.  He  had  found  this  to  be  so,  and  he 
would  therefore  withdraw  his  amendment  lor  the 
present. 

Mr.  KIRKLAND  enquired  if  the  gentleman 
meant  that  the  appropi  lations  from  the  Common 
School  and  Literature  fund  should  undergo  this 
biennial  review. 

Mr.  HOFFMAN  desired  to  adopt  here  the  same 
couise  adopted  in  all  constitutional  governments 
but  this.  He  desired  that  the  people  should  know 
from  the  statute  books  the  exact  sum  of  money 
appropriated,  and  to  whi-.t  pnipose.  This  was  the 
course  pursued  by  Congress, 

Mr.  WORDEN  enquired  how  this  would  ope- 
rate in  the  case  of  a  contract  which  extended  be- 
yond two  years 

Mr.  HOFFMAN:  Precisely  as  wa<  done  in 
Congress.  Theie  was  no  fear  of  the  work  being 


942 


delayed  for  the  want  of  an  appropriation.  He 
hoped  the  Convention  would  adopt  this  measure, 
as  one  tending  to  promote  economy,  and  to  invite 
the  people  to  a  watchful  care  of  their  expendi- 
tures. 

Mr.  WORDEN  agreed  fully  in  regard  to  the 
propriety  of  having  every  Legislature  know  dis- 
tinctly the  amount  of  their  appropriations.  He 
believed  the  expenses  of  government  had  been 
greatly  swelled  by  a  lack  of  this  information.  He 
desired  to  go  further,  he  desired  to  see  a  provision 
requiring  the  Legislature,  in  every  year,  to  make 
provision  for  the  payment,  by  tax  or'  otherwise, 
for  every  dollar  it  appropriated.  Legislatures 
would  then  appropriate  mon^y  with  much  more 
care,  and  it  would  be  the  saving  of  a  large  amount 
of  monev  annually  to  the  people. 

Mr.  RHOADES  said  that  so  far  as  related  to 
the  distribution  of  money  to  academies,  &c.,  this 
provision  would  be  one  of  great  inconvenience. 
There  had  for  some  time  past  been  a  contest  go- 
ing on  between  those  who  claimed  to  be  friends 
of  common  schools  and  the  friends  of  academies, 
in  regard  to  appropriations  made  to  the  latter. 
This  would  bring  the  contest  up  every  two  years, 
and  the  academies  would  be  compelled  on  those 
occasions  to  sent  agents  here  to  guard  against  be- 
ing deprived  of  their  appropriation. 

Mr.  NICOLL  said  that  this  was  to  be  provided 
for  in  another  article  of  the  Constitution  in  rela- 
tion to  that  particular  subject. 

Mr.  MARVIN  suggested  the  following  amend- 
ment as  tending  to  obviate  the  difficulties  suggest- 
ed by  Mr.  RHOADES.  Amend  the  fourth  and  fifth 
lines  so  that  it  should  read  as  follows  :  "  nor  un- 
less such  payment  be  made  within  two  years  next 
after  the  same  shall  be  payable  pursuant  to  such 
appropriation." 

Mr.  HOFFMAN  thought  this  amendment 
would  in  effect  bring  us  just  where  we  are  now. 
It  would  permit  the  legislature  to  make  appropri- 
tions  to  run  four  or  five  years,  and  this  was  what 
he  desired  to  guard  against.  He  cared  not  what 
act  was  passed  or  what  obligation  entered  into, 
all  he  desired  was  that  every  two  years  the  legis- 
lature should  review  these  appropriations.  By 
separating  the  literature  fund  from  the  common 
school  fund  here,  these  quarrels  would  be  avoid 
ed,arid  they  could  only  be  obviated  by  making  such 
a  constitutional  provision.  He  was  in  favor 
of  that,  because  he  regarded  the  academies  and 
colleges  as  standing  in  the  same  position  to  the 
counties /and  state,  as  did  the  district  schools  to 
the  district.  His  amendment  would  require  the 
people  and  the  legislature  to  examine  carefully 
into  the  appropriations  made  to  these  institu 
tions. 

Mr.  KIRKLAND  desired  to  know  what  effect 
this  provision  would  have  upon  legislative  appro- 
priations to  Medical  colleges,  and  the  rights  o 
parties  therein. 

Mr.  HOFFMAN  said  it  would  have  no  effec 
on  the  rights  of  parties,  but  only  on  the  action  o 
the  public  officers.  Suppose  a  law  was  passed  t< 
give  Hamilton  college  so  much  money  for  fivi 
years,  all  the  public  officers  would  have  to  d< 
would  be  to  call  upon  the  legislature  for  the  ap 
propriation. 

Mr.  KIRKLAND  enquired  what  would  be  th 


fleet  if  the  Legislature  should   refuse  to  make 

e  appropriation. 

Mr.  HOFFMAN  said  that  when  the  Legisla- 
ure  refused  to  obey  law  and  violate  faith,  he  did 
otknow  what  could  be  guarded  against.  He  did 
ot  know  of  an  instance  when  congress  had  failed 
o  carry  out  the  conditions  of  such  a  promise. — 
le  had  no  fears  of  the  action  of  the  legislature  on 
lie  subject. 

Mr.  RICHMOND  hoped  this  section  would  pass 
ust  as  it  was.  It  was  in  his  opinion  none  too 
trong  or  pointed.  Mr.  R.  replied  further  to  the 
ueries  of  Mr.  KIRKLAND. 

Mr.  MARVIN  said  at  the  request  of  several 
entleman  he  would  withdraw  his  amendment. 

Mr.  VAN  SCHOONHOVEN  said  he  should 
iffer  the  amendment,  for  the  purpose  at  least  of 
esting  the  question.  He  could,  however,  see  no 
.ecessity  for  the  adoption  of  this  provision  at 
11.  The  fact  that  it  worked  well  at"  Washington 
,vas  not  a  sufficient  reason  why  it  should  be  adop- 
ed  here.  He  saw  no  necessity  for  repeating  the 
ame  appropriation  in  law  after  law.  As  to  the 
enquiry  of  the  gentleman  from  Oneida  as  to  what 
would  be  the  effect  of  the  Legislature  refusing  to 
iiake  the  appropriation,  according  to  the  plighted 
aith  of  the  state,  if  there  was  a  Legislature  here 
composed  of  such  gentlemen  as  the  gentleman 
rom  Genesee,  who  were  bitterly  opposed  to  all 
appropriations  to  charitable  or  benevolent  pur- 
poses— 

Mr.  RICHMOND :  There  is  no  truth  in  that 
whatever.  Not  a  word  of  it. 

Mr.  VAN  SCHOONHOVEN  said  that  was  the 
jurport  of  all  the  gentleman  had  said  here  on  the 
subject  of  loans  to  these  institutions.  But  sup- 
posing there  should  be  a  legislature  which  should 
lo  that,  what  guard  was  there  against  it. 

Mr.  HOFFMAN:  The  legislature  could  do 
that  now  every  year. 

Mr.  VAN  SCHOONHOVEN  said  that  then 
there  was  the  greater  reason  why  this  matter 
should  be  guarded.  Mr.  V.  S.  said  there  was  no 
reason,  he  had  heard  urged,  for  this  proposition, 
except  that  it  would  afford  facility  to  members  of 
the  legislature  in  ascertaining  what  previous  ap- 
propriations were  made.  Gentlemen  could  do 
this  now  by  going  into  the  library  and  looking  at 
the  statutes. 

Mr.  SWACKHAMER:  In  many  cases  then 
you  would  have  to  go  back  20  years. 

Mr.  VAN  SCHOONHOVEN  further  urged 
there  was  no  necessity  for  any  such  provision  as 
this. 

Mr.  SWACKHAMER  sustained  the  proposit- 
ion as  being  eminently  wise  and  proper,  and  as 
tending  to  guard  the  people  from  the  absorbing  of 
their  funds  by  monopolies— these  chartered  in- 
stitutions of  education.  It  would  do  this  by  bring- 
ing the-e  questions  of  appropriation  frequently 
before  the  people. 

Mr.  BROWN  further  sustained  the  proposition. 
As  it  was  now,  no  gentleman  could  tell  by  look- 
ing at  the  session  laws  what  the  amount  of  ap- 
propriations were  for  any  one  year. 

Mr.  WORDEN  agreed  with  the  gentleman  in 
his  purposes  and  would  go  with  him.  But  how 
were  the  payments  from  this  sinking  fund  just 
provided  to  be  made.  Was  it  by  an  act  of  appro- 
priation ? 


943 


Mr.  BROWN :  Certainly.  This  plan  would  not 
affect  any  law  appropriating  money  to  this  insti- 
tution or  that,  it  would  simply  require  a  biennial 
statement  of  all  the  expenditures  of  the  govern- 
ment. This  would  be  published  all  over  the 
State,  would  be  read  by  the  people,  and  thus  act 
as  a  check  upon  legislative  profligacy. 

Mr.  RICHMOND  repelled  the  imputations  he 
considered  to  have  been  cast  upon  him  by  Mr. 
VAN  SCHOONHOVEN.  He  did  not  profess  to  be  as 
liberal  with  the  money  of  the  public— of  other 
people — as  with  his  own.  It  would  have  been 
much  better  in  his  opinion  for  the  people,  had 
the  gentleman  and  a  lew  others  with  him,  been  a 
little  less  liberal  with  the  public  money.  No 
man  as  a  representative  of  the  people  had  a  right 
to  be  liberal — he  should  only  be  just. 

Mr.  BROWN  here  asked  for  the  previous  ques- 
tion.    There  was  a  second,  the  main  question  or- 
dered.    The  question  was  then  taken  on  the  first 
section  and  it  was  adopted  without  a  count. 
The  second  section  was  then  read,  as  follows 
^  2.  The  credit  of  the  state  shall  not,  in  any  manner,  be 
given  or  loaned  to,  or  in  aid  of,  any  individual,  association 
or  incorporation. 

Some  conversation  here  ensued  between  Messrs 

VAN  SCHOONHOVEN  and  RICHMOND,  in  re 

lation  to  the  matter  before  at  issue  between  them 

Mr.   SWACKHAMER   moved   to  add  after  the 

word  "  credit"  the  words  "money  or  property." 

Mr.  HOFFMAN  hoped  this  motion  would  not 
be  persisted  in.  If  the  slate  had  money  lo  loan 
or  property  to  sell,  it  had  better  be  allowed  to  do 
it.  He  was  ready  to  guard  against  mischief  which 
bad  become  apparent,  and  he  was  satisfied  that 
the  words  were-  broad  enough. 

Mr.  SWACKHAMER  had  no  desire  to  persist 
in  his  amendment,  and  would  withdraw  it. 

Mr.  O'CONOR  moved  to  add  to  the  end  of  the 
section  the  following: 

"Nor  shall  any  gift  of  public  moneys  or  property  be 
made  except  as  a  reward  for  military  services,  or  by  the 
release  of  escheats  or  forfeitures. 

Mr.  RUSSELL  thought  the  words  of  the  section 
were  sufficiently  guarded,  and  he  hoped  therefore 
that  this  amendment  would  not  be  adopted. 

Mr.  O'CONOR  then  withdrew  his  amendment, 
if  there  wa?  any  objection  to  it. 

The  second  section  was  then  adopted  unani- 
mously. 

The  third  section  was  then  read,  as  follows': 

5)  3.  The  state  may,  to  meet  casual  deficits  or  failures  in 
revenues,  or  for  expenses  not  provided  lor,  contract  debts, 
but  such  debts,  direct  or  contingent,  singly  or  in  the  ag 
gregate,  shall  not,  at  any  time,  exceed  one  million  of  dol 
fars,  and  the  moneys  arising  from  the  loans  creating  such 
debts,  shall  be  applied  to  the  purpose  for  which  they  were 
obtained,  or  to  repay  tue  debt  so  contracted,  and  to  no  other 
purpose  whatever. 

Mr.  HOFFMAN  suggested  a  verbal  amendment 
which  was  assented  to. 

The  third  section  was  adopted  also  unanimously. 

The  fouith  section  wa*  then  read,  as  follows  : 
(j  4.  In  addition  to  the  above  limited  powers  to  contract 
debts,  the  state  may  contract  debts  to  repel  invasion,  sup 
press  insurrection,  or  detend  the  state  in  war;  but  the  mo 
ney  arising  from  the  contracting  of  such  debts  shall  be  ap 
plitd  to  the  purpose  lor  which  it  was  raised,  or  to  repaj 
such  debtSj  and  to  no  oiher  purpose  whatever. 

Mr.  HOFFMAN  explained  that  the  object  o 
this  section  was  to  make  this  power  to  contrac 
debts  for  this  purpose,  as  strict  as  possible.  Ho 


thought  no  limitation  other  than  the  committee 
lad  proposed  could  be  adopted. 

The  section  was,  as  the  others,  unanimously 
adopted, 

The  fifth  section  was  then  read,  as  follows  : 

§  5.  Except  the  debts  specified  in  the  third  and  fourth 
sections  of  this  article,  no  debt  or  liability  shall  be  hereaf- 
ter contracted  by  or  on  behalf  of  this  state,  unless  such 
bt  shall  be  authorized  by  a  law  for  some  single  work  or 
object,  to  be  distinctly  specified  theiein,  and  such  law  shall 
impose  and  provide  for  the  collection  of  a  direct  annual 
tax,  to  pay,  and  sufficient  to  pav  the  interest  on  such  debt 
as  it  falls  due,  and  also  to  pay  and  discharge  the  principal 
of  such  debt  within  eighteen  years  from  the  time  of  the 
contracting  thereof.  No  such  law  shall  take  effect  until 
it  shall,  at  a  general  election,  have  been  submitted  to  the 
people  and  have  received  a  majority  of  all  the  votes  cast 
for  or  against  it,  at  such  election.  On  the  final  passage  of 
such  bill  in  either  house  of  the  Legislature,  the  question 
shall  be  taken  by  ayes  and  noes,  to  be  duly  entered  on  the 
journals  thereof,  and  shall  be:  t!  Shall  this  bill  pass,  and 
ought  the  same  to  receive  the  sanction  of  the  people?"  The 
Legislature  may  at  any  time  after  the  approval  of  such 
law  by  the  people,  if  no  debt  shall  have  been  contracted  or 
liability  incurred  in  puisuance  thereof,  repeal  the  law;  and 
may  at  any  time  by  law  forbid  the  contracting  of  any  lur- 
ther  debt  or  liability  under  such  law;  bat  the  tax  imposed 
by  such  act,  in  proportion  to  the  debt  and  liability  which 
may  have  been  contracted  in  pursuance  of  such  law  shall 
remain  in  force  and  be  irrepealable,  and  be  annually  col- 
lected until  the  proceeds  thereof  shall  have  made  the  pro- 
vision hereirtotoie  specified  to  pay  and  discharge  the  inter- 
est and  principal  of  such  debt  and  liability. 

The  money  arising  from  any  loan  or  stock  creating  debt 
or  liability  shall  be  applied  to  the  work  or  obj  ct  specified 
in  the  act  authorizing  such  debt  or  liability,  or  for  the  re- 
payment  of  such  debt  or  liability,  and  for  no  other  purpose 
whatever. 

No  such  law   shall  be  submitted  to  be  acted  on  within 
iree  months  atter  its  passage   or  at  any  general  election, 
when  any  other  law  or  any  bill  or  any  amendment  of  the 
onstitution.  shall  be  submitted  to  be  voted  for  or  against 

Mr.  HOFFMAN  said  that  as  some  gentlemen 
eemed  to  suppose  that  the  seel  ion  proposes  to 
make  a  serious  change  in  our  form  of  government 
le  would  take  a  few  moments  to  say  something 
n  relation  to  it.  If  we  look  at  home,  at  the 
neighboring  states,  or  to  foreign  representative 
governments,  we  shall  be  obliged  to  acknowledge 
:hat  their  greatest  infirmity  is  their  disposition 
o  contract  debts.  The  freest  government  on  the 
other  side  of  the  water  has  contracted  the  largest 
debt  known  to  history,  and  he  thought  it  had  been 
demonstrated  by  the  researches  of  able  men,  that 
it  was  not  the  Goths  and  Vandals  who  overthrew 
the  Empire  of  Rome,  but  the  taxing  officers,  that 
eviscerated  the  Empire  and  thus  rivited  the  bar- 
jarians  in.  For  there  was  no  resistance  to  them, 
not  even  so  much  as  was  made  on  the  feeble  soil 
of  Great  Britain,  against  the  Dane  and  the  Saxon. 
If  he  was  right  in  this,  it  behoves  those  who 
were  desirous  of  securing  free  and  republican 
government  to  find  some  limitation  safe  in  prac- 
tice to  this  most  dangerous  power.  In  almost 
any  case  if  a  bad  law  is  passed  by  the  legislature, 
it  can  be  repealed — the  legislature  have  few  temp- 
tations to  pass  a  bad  one.  It  is  not  so  in 
relation  to  the  subject  of  debts  and  compound 
interest.  It  is  silent,  creeps  along,  gets  into 
the  State,  and  when  the  act  is  once  passed,  the 
debt  incurred,  the  obligation  is  as  strong  as  death 
for  its  payment.  That  can  only  be  wrung  from 
the  industry  of  the  people,  by  taxes,  indirect  or 
direct.  This  being  the  case,  and  being  so  entire- 
ly different  from  almost  all  subjects  on  which  le- 
gislation can  act,  it  requires  an  especial  remedy. 
Such  an  one  must  be  found,  or  he  apprehended 


944 


representative  government  would  not  be  success- 
ful. Looking  into  history,  it  would  be  found 
that  the  worst  vice  of  the  worst  government  is  di- 
rect taxation,  and  if  representative  governments 
cannot  be  cured  of  that,  he  feared  they  would  not 
long  endure ;  for  man  must  have  bread,  clothing 
and  lodging — they  must  have  those  conveniences 
to  which  they  are  accustomed,  and  if  we  will 
have  great  debts,  so  we  must  have  severe  taxes. 
They  who  vote  the  debt,  vote  to  tax,  although 
they  cast  the  burden  of  the  tax  upon  those  who 
come  after  them.  Unless  we  make  some  provi- 
sion of  this  kind,  there  will  be  large  debts,  and 
these  debts  will  fasten  themselves  upon  the  fu- 
ture surpluses  of  the  canals.  When  these  debts 
are  pressing  upon  you,  it  will  be  impossible  to 
deal  fairly  with  the  question.  The  legislature 
will  in  some  way  or  other,  by  some  contri- 
vance, take  these  revenues  instead  of  resort- 
ing to  direct  taxation.  And  gentlemen  who 
favor  a  free  transportation  and  travel  will  do 
well  to  guard  here  as  stringently  as  they  can 
against  those  debts  which  more  than  any  thing 
else  will  tend  to  prevent  that,  consummation. — 
This  section  contains  in  it  a  proposition  to  meet 
the  objections  which  on  former  occasions  have 
been  urged  and  strongly  too  against  it.  It  was 
said  that  the  members  would  vote  for  any  law, 
throwing  it  on  the  people  to  decide,  and  thus 
avoiding  the  direct  responsibility.  To  avoid  that 
difficulty  the  amendment  prescribes  the  very 
question  to  which  the  member  must  answer,  and 
he  cannot  answer  it  in  any  spirit  of  evasion.  He 
must  say  that  he  believed  the  law  to  be  extremely 
right  and  proper,  and  the  people  ought  to  sanc- 
tion it.  He  therefore  cannot  avoid  the  responsi- 
bility. There  is  another  thing  :  we  have  got 
along  so  far  in  our  history  that  it  is  not  probable 
that  "any  of  these  large  loans  will  be  called  for  in 
any  case  where  there  is  reason  to  believe  that  the 
revenues  will  not  pay  the  debt.  They  must  pro- 
vide for  the  payment  of  the  debt  by  direct  taxa- 
tion But  if  you  let  them  off  on  the  part  of  the 
proposition,  in  the  future  like  the  past,  it  will  be 
alle°-ed  that  the  work  will  be  abundantly  produc- 
tive°of  revenue,  and  the  legislature  might  be  in- 
duced to  believe  it,  and  thus  incur  the  debt.  It 
would  avoid  all  questions  as  to  whether  the  legis- 
lature could  ever,  with  any  decent  appearance 
even  of  common  hypocrisy  repudiate  the  debt. — 
The  means  of  payment  would  go  with  the  work, 
and  this  he  believed  would  give  reasonable  secu- 
rity against  unnecessary  and  improper  debt.  Mr. 
H  also  explained  the  provision  requiring  the  ap- 
propriation bills  to  be  submitted  at  a  special  elec- 
iton  as  tending  to  direct  the  undivided  attention 
of  the  people  to  the  subject.  With  all  these 
guards  Mr.  H.  said  a  resonable  protection  was 
presented  for  the  rights  of  property,  and  the  sa- 
cred rights  of  labor.  The  power  to  labor  is  the 
sift  of  heaven,  and  the  property  it  produces  is 
fust  as*  sacred  as  the  source  from  which  that  pow- 
er comes.  The  government  should  never  ask  for 
it  unless  it  can  show  as  good  a  title  for  it,  as  the 
citizen  has  who  produces  it.  He  believed  there- 
fore that  with  all  these  provisions  there  would  be 
a  reasonable  safeguard  for  the  rights  of  property 
and  of  labor. 

Mr  SHEPARD  moved  to  amend  the  section  so 
that  it  should  provide  against  the  possible  crea- 


tion of  debt  for  the  future.  He  believed  the  true 
objects  of  government  to  be  the  protection  of  the 
individuals  that  constitute  it,  in  the  enjoyment  of 
their  rights.  He  did  not  think  it  advisable,  ex- 
cept in  the  cases  already  specified,  that  erovern- 
ment  should  have  the  power  to  embark  in  the 
construction  of  any  long  public  work  that  would 
run  it  into  debt,  or  take  upon  its  hands  any  of 
those  munificent  undertakings  which  unfortu- 
nately for  all  people,  in  all  ages,  have  been  con- 
sidered the  legitimate  objects  of  human  govern- 
ment. He  conceived  a  great  principle  to  be  in- 
volved in  this  amendment,  and  he  presented  it  to 
the  consideration  of  the  Convention,  without  any 
further  argument,  for  them  to  determine  upon  it. 
Whether  the  government  should  hereafter  be  con- 
fined to  the  simple  purposes  of  the  administration 
of  the  laws  and  the  framing  of  them,  or  whether 
it  should  be  left  at  liberty  to  run  wild  as  hereto- 
fore in  pursuit  of  those  visionary  schemes  that 
the  individuals  who  at  the  time  had  its  manage- 
ment might  deem  essential  to  its  welfare  or  cal- 
culated to  promote  its  grandeur.  He  hoped  the 
amendment  would  be  considered  carefully,  and 
whatever  should  be  its  fate,  he  should  be  satisfied 
with  his  own  course  in  presenting  it  for  conside- 
ration. 

Mr.  BASCOM  had  intended  to  move  an  amend- 
ment authorising  the  legislature  to  create  debt, 
providing  they  had  the  moral  courage  to  provide 
for  its  payment  by  direct  taxation.  He  had  his 
fears  that  if  this  section  should  stand  as  it  was, 
it  might  lead  hereafter  to  the  creation  of  another 
large  debt.  He  preferred  to  leave  this  matter 
with  the  legislature,  believing  the  check  of  di- 
rect taxation  would  be  sufficient  to  guard  the  in- 
terests of  the  people.  He  thought  the  ameridment 
of  the  gentleman  from  New  Y.ork  far  preferable 
to  the  original  section.  He  believed  the  time  had 
gone  by,  when  in  view  of  the  great  resources  and 
wealth  of  this  State,  it  would  be  necessary  to 
create  new  debts.  Much  less  did  he  believe  it 
would  ever  be  necessary  to  set  in  motion  this 
cumbrous  machinery  to  create  debt.  When  it 
should  become  absolutely  necessary  to  raise  mon- 
ey, let  it  be  done  by  direct  taxation.  He  did  not 
approve  of  this  section  for  so  far  as  it  related  to 
this  matter,  it  did  change  our  representative  go- 
vernment into  a  democracy. 

Mr  LOOM1S  was  one  of  those  who  did  not  be- 
lieve in  the  probability  of  any  necessity  lor  the 
creation  nt  a  debt.  Believing  that,  and  in  consis- 
tency with  the  views  he  had  heretofore  advocated, 
he  desired  to  let  the  future  prepare  to  meet  the 
question,  when  it  should  arise.  He  had  been 
charged,  in  a  debate  somewhat  analagous  to  this, 
with  advocating  a  new  and  difieient  doctrine  from 
what  he  formerly  had.  He  did  not  see  fit  to  reply 
at  the  time,  as  he  knew  the  occasion  would  arise 
when  he  could  vindicate  himself  fiom  the  charge. 
He  had  been  charged  with  distrust  ol  the  Le- 
gislature hereafter,  and  of  manifesting  it  in  the 
report  he  had  the  honor  to  submit  to  the  Con- 
vention, and  at  another  time,  with  having  great 
confidence  in  them.  Now,  he  undertook  to  say 
that  his  course  was  consistent.  He  had  always 
believed  and  maintained  that  the  legislature  and 
the  people  might  with  perfect  propriety  dispose 
of  the  immediate  subject  before  them,  or  then- 
own  property  and  means  in  hand ;  but  they  never 


945 


had  the  right  to  legislate  for  the  future,  to  en- 
thrall and  bind  down  those  who  came  after  them, 
either  by  debt  or  any  other  system  of  legislation 
which  would  prevent  them  from  a  perfect  freedom 
of  action.  What  had  been  the  course  of  the  Con- 
vention this  day  on  the  subject  ?  We  have  been 
legislating  for  the  future,  tying  down  the  hands  of 
the  people  for  the  next  25  years  in  a  matter  per- 
taining to  themselves  and  their  day.  It  had  been 
perfectly  analogous  to  the  system  of  pledging  the 
faith  of  the  state,  for  the  prosecution  of  the  pub- 
lic works  and  drawing  on  the  future  for  the  pay- 
ment. We  had  by  our  votes  of  to-day,  imposed 
a  tax  for  the  next  twenty-five  years,  for  the  pros- 
ecution of  those  works,  and  this  too,  without  es- 
timates, surveys,  or  any  requisite  knowledge. — 
It  is  this  legislation  for  the  future,  which  he  had 
heretofore  deprecated,  and  which  he  now  depre- 
cated. And  it  was  for  that  reason  that  he  could 
not  consent  to  this  amendment  He  knew  not 
but  that  in  the  future  there  might  be  some  occa- 
sion for  creating  a  debt  And  he  would  be  will- 
ing that  the  future  should  impose  upon  themselves 
a  sufficient  tax,  to  pay  the  debt  within  eighteen 
years.  Mr.  L.  doubted  the  power  of  the  people 
to  restrict  themselves  or  the  future  in  this  way. 
If  this  section  should  be  amended  in  this  way, 
and  the  legislature  should  submit  to  the  people  a 
proposition  to  create  a  debt  and  tax  themselves  to 
pay  it,  and  if  that  act  should  be  ratified  with  all 
the  solemnity  that  they  would  adopt  this  con- 
stitution, he  doubted  whether  any  power  could 
prevent  it. 

Mr.  E.  HUNTINGTON  moved  to  amend  the 
section  by  striking  out  all  that  relates  to  the  sub- 
mission of  the  law  to  the  people. 

Mr.  RUSSELL  opposed  ihb  amendment.  The 
principle  recognized  here  was  in  practice  in  all 
our  towns,  and  the  people  in  their  primary  capaci- 
ty, voied  taxes  on  themselves  to  the  amount  of 
millions,  in  the  aggregate,  every  year.  This  pow- 
er to  tax  could  not  be  lodged  in  safer  hands,  than 
in  the  hands  of  those  who  had  to  pay. 

Mr.  BAKER  said  that  if  the  motion  of  the  gen- 
tleman from  Oneida  (Mr.  KIRKLAND)  should  pie- 
vail,  then  he  would  move  to  strike  out  part,  and 
insert  a  provision  to  the  effect  that  no  law  crea- 
ting a  loan,  should  ta.ve  effect,  unless  it  receives 
the  assent  of  a  majority  of  all  the  members  eleci. 
ed  in  two  successive  legislatures. 

Mr.  PATTERSON  was  decidedly  opposed  to 
incurring  a  single  dollar  more  of  debt.  He  felt 
but  little  interest  in  these  amendments;  after  we 
had  adopted  a  provision  authorizing  the  .Legisla- 
ture to  create  debts  in  case  of  war  or  invasion, 
then  he  did  not  believe  there  would  ever  be  any 
necessity  to  incur  any  other  debt  to  the  amount  of 
a  single  dollar.  [Cries  of  •«  Good— that's  the  true 
doctrine."]  He  should,  therefore,  certainly  vote 
for  the  amendment  of  Mr.  SHEPARD.  He  be- 
lieved, also,  that  after  the  present  debt  was  paid, 
the  canals  would  yield  a  revenue  abundant  for  all 
purposes.  No  one  could  visit  the  western  States, 
and  see  fheir  almost  boundless  resource?,  and  still 
doubt  that  the  revenues  of  the  canals  would  in  a 
few  years  amount  to  five  or  six  millions  of  do) 
lars.  Why,  only  ten  years  ago,  the  little  county 
of  Livingston  sent  to  the  New  York  market  a 
greater  amount  of  products  than  all  the  region 
west  of  Buffalo.  But  now,  there  are  20  counties 

93 


in  Ohio  alone,  that  each  send  more  than  that 
county.  He  was  quite  sure  that  ihe  tolls  on  our 
canals,  although  they  might  he  reduced  one. half 
(as  desired  by  Mr,  HOFFMAN),  yet  that  they 
would,  in  a  few  years  reach  the  amount  he  had 
named.  And  thus  believing  that  they  would  be 
abundantly  sufficient  for  all  the  legitimate  purpo- 
ses of  the  State,  he  should  vote  for  the  amendment 
of  the  gentlemen  from  New  York,  (Mr.  SHEP- 
ARD.) 

Mr.  KTRKLAND  was  opposed  to  the  amend- 
ment. There  might  be  a  very  urgent  and  insur- 
mountable necessity  for  a  debt ;  he  would  guard 
by  every  possible  means,  and  the  strongest  bar- 
riers, the  debt-creating  power  ;  but  for  his  own 
part,  he  confessed  that  he  could  not  see  quite  as 
far  into  the  future  as  some  gentlemen  (laughter) 
seemed  to  do.  The  gentleman  from  Chautauque, 
(Mr.  PATTERSON,)  must  be  gifted  with  a  much 
greater  degree  of  prescience  than  most  of  the 
other  members.  For  his  own  part  he  (Mr.  R.) 
concurred  with  Mr  LOOMIS,  that  we  could  not 
foresee  every  thing  that  might  happen  ;  and  that 
we  could  not  do  a  more  foolish  thing,  than  to  as- 
sume and  act  on  the  presumption  that  no  possible 
state  of  things  could  exist,  that  would  make  it 
necessary  to  create  or  contract  a  new  debt.  He 
considered  that  the  section  as  reported  by  the 
Convention  was  abundantly  guarded,  even  if  it 
should  provide  only  that  when  a  new  debt 
should  be  proposed,  the  means  of  payment  should 
be  provided  by  direct  taxation.  But  if  this  was 
not  deemed  sufficient,  the  other  guard  in  the  sec- 
tion, (to  which,  by  the  by,  he  had  no  objection,) 
would  be  sufficient  for  all  the  purposes  directed 
by  those  most  violently  opposed  to  the  creation 
of  any  debt ;  and  would  abundantly  secure  us 
against  an  improvident  debt. 
Mr.  WORDEN  said  that  he  should  be  exceeding- 
ly sorry  to  see  either  by  adoption  or  implication,  a 
section  like  this  inserted  in  the  Constitution  of  a 
republican  government  If  we  were  to  adopt 
such  a  section,  it  would  only  be  saying  to  the 
world  in  so  many  words,  that  republican  gov. 
ernments  had  proved  a  failure.  Now,  sir,  I,  for 
one,  am  opposed  to  any  such  declaration,  either 
by  implication,  expression,  or  in  any  way.  I  am 
a  firm  believer  in  the  value,  great  advantages, 
and  the  perpetuity  of  a  republican  government ; 
but  if  this  government  unfortunately  should  fail' 
it  will  be  by  reason  of  some  men  who  bring  for- 
ward plans  like  these,  by  which  they  express 
their  distrust  of  the  people.  He  would  not  ad- 
mit in  this  or  any  way,  that  the  experiment  of  a 
republican,  representative,  responsible  form  of 
government,  after  a  trial  of  more  than  70  years, 
had  proved  a  failure,  and  was  not  to  be  trusted 
in  the  exercise  of  an  essential  function- 
that  the  people  in  point  of  fact,  were  not  capable 
of  judging  of  the  action  of  their  representatives, 
and  of  correcting  their  errors.  He  regarded  this 
proposition,  if  carried  out  as  calculated  to  lull  the 
people  into  a  false  security,  where  they  will  be- 
lieve that  all  is  going  right,  when  in  truth  it  is 
not ;  and  you  will  disarm  them  of  that  vigilance 
in  regard  to  the  action  of  their  representatives, 
that  is  so  highly  essential  to  the  preservation  of 
public  liberty.  He  desired  to  see  the  people  al- 
ways vigilant;  and  he  insisted  that  under  the  sys- 
tem which  has  so  long  been  in  practice  in  this 


946 


state,  and  under  the  Legislature  of  this  state 
(which  has  been  so  much  denounced) — a  legisla- 
ture containing  a  greater  number  of  in-telligent, 
honest,  talented  men  than  any  other  one  in  the 
Union — this  great  state  of  New  York  has  been 
built  up  from  1,300,000  to  3,000,000  of  people— 
your  taxable  property  has  been  doubled — it  has 
trebled  your  trade — quadrupled  your  commerce — 
covered  the  state  with  colleges  and  schools — and 
made  a  progress  in  all  the  elements  of  wealth  and 
greatness  that  was  unparalleled.  There  never 
was  a  time  when  the  people  were  not  capable  of 
appreciating  and  of  approving  or  condemning  the 
action  of  their  representatives;  and  as  one  of  that 
people  (never  intending  to  hold  another  public 
office,  if  he  could  help  it,)  he  would  never  go 
back  to  them,  and  say  that  they  and  their  dele- 
gates have  acted  unwisely  and  are  not  to  be  trus- 
ted. He  would  never  place  such  a  stigma  upon 
the  intelligence  of  the  people  and  upon  represen- 
tative government,  by  voting  for  any  such  provi- 
sion as  this.  The  people  could  always  be  depen- 
ded upon  in  any  emergency.  And  if  two  cities 
like  New-York  and  Buffalo  should  combine  to  tax 
the  state  $10,000,000  for  internal  improvements, 
that  tax  would  be  paid.  It  was  idle  to  advocate 
the  ground  that  had  been  taken  here.  The  state 
is  a  trustee  and  is  liable  for  all  the  monies,  &c. 
deposited  with  her  as  a  security. 

Mr.  WATERBURY  said  that  debt  always  comes 
coupled  with  blessings.  You  can't  get  round 
these  old  debts.  They  always  come  hitched  in, 
in  that  way.  Better  go  the  section  entire. 

Mr.  SHEPARD  would  take  out  the  words 
"  or  liability." 

Mr.  HOFFMAN  said  that  this  section  was  not 
founded  on  a  distrust  of  the  people.  But  it  was 
saying  that  we  will  not  trust  the  legislature  with 
the  power  of  creating  indefinite  mortgages  on  the 
people's  property. 

Mr.  J.  J.  TAYLOR  laid  on  the  table  a  motion 
to  reconsider  the  6th  section  of  the  first  financial 
report. 

Mr.  BROWN,  a  similar  motion  to  reconsider 
the  3d  section  of  that  report. 

Mr.  SWACKHAMER  laid   on  the  table  two 
additional  sections  to  the  pending  article. 
BOARDS  OF  SUPERVISORS. 

Mr.  R.  CAMPBELL,  jr  ,  from  committee  num- 
ber 15,  submitted  the  following  report : 
ARTICLE  — 

5. t  The  legislature  shall  provide  by  law  for  the  reor- 
ganization of  »he  boards  of  supervisors  of  the  several 
counties  of  the  state,  so  as  to  create  a  more  equal  repre- 
sentation m  said  boards,  and  mt.y  confer  upon  the  same 
sach  further  p  >wers  of  local  legislation  and  administration 
as  shall  from  time  to  time  be  prescribed  by  law. 

The  Convention  then  adjourned  to  8i  o'clock 
to-morrow  morning. 

WEDNESDAY,  (QQth  day,)  Sept.  23d. 

Prayer  by  the  Rev.  Mr.  WILKINS. 

Mr.  YAWGER  presented  a  memorial  from  citi- 
zens of  Cayuga  county  for  an  equal  distribution 
of  the  literature  fund.  Referred  to  committee  of 
the  whole. 

Mr.  MANN  called  the  attention  of  the  Conven- 
tion to  the  fact  that  the  clerks  of  the  first  and 
third  chancery  districts  had  made  no  returns  in 
answer  to  a  resolution  sometime  since  passed  by 
the  Convention.  They  were  the  two  most  im- 


portant, and  the  districts  in  which  the  largest  a- 
mount  of  funds  were  held.  He  moved  that  the 
Secretary  be  directed  to  communicate  with  them 
and  request  answers  in  obedience  to  the  resolu- 
tion. 

Mr.  TAGGART  suggested  that  the  registers 
and  assistant  registers  should  be  included  in  the 
resolution. 

Mr.  MANN  assented. 

Mr.  HOFFMAN  suggested  that  the  communi- 
nication  should  be  sent  to  the  appointing  power 
— the  Chancellor — so  that  if  any  subordinate  ne- 
glected to  discharge  his  duty,  contumacy  might 
be  punished. 

Mr.  MANN  so  modified  his-  resolution,  and  as 
amendad  it  was  adopted. 
RESTRICTIONS  ON  THE  DEBT  CREATING  POWER. 

The  Conveation  resumed  the  consideration  of 
the  second  report  of  the  finance  committee,  on 
the  power  to  create  state  debts  and  liabilities  and 
in  restraint  thereof. 

The  pending  amendment  was  thf»t  offered  last 
night  by  Mr.  E.  HUNTINGTON,  to  the  5th  section. 

Mr.  E.  HUNTINGTON  moved  iurther  to  a- 
mend  by  striking  out  the  word  "  approval"  in  the 
17th  line,  and  insert  "  passage,"  and  by  striking 
out,  "  by  the  people"  from  the  18th  line,  so  that 
the  section  would  read  "  the  legislature  may  at 
any  time  after  the  passage  of  such  laws,"&,c.,  in- 
stead of  "  the  legislature  may  at  any  time  after 
the  approval  of  such  law  by  the  people"  &c. 

Mr.  HOFFMAN  repeated  what  Mr.  WORDEN 
said  in  relation  to  leaving  the  matter  under  con- 
sideration in  the  hands  of  the  legislature.  He 
(Mr.  H.)  had  never  entertained  any  extraordina- 
ry confidence  in  the  people — nor  in  the  popula- 
tion of  cities.  He  sought  no  political  life,  nor 
would  he  shun  it.  But  he  would  not  be  forced 
into  political  life  any  longer  than  he  chose  tore- 
main  there.  He  believed  cities  would  do  as  well 
in  the  future  as  they  had  done  in  the  past.  Where 
the  people  have  given  a  vote  for  a  debt  directly, 
they  have  honestly  provided  to  meet  it  and  to  pay 
it.  And  he  wished  that  whenever  the  people 
were  to  have  their  property  mortgaged  for  a  Slate 
debt,  that  it  should  be  done  by  their  own  voice, 
and  by  their  own  consent.  He  believed  that  if 
his  plan  carried,  the  legislature  would  have  all 
power  to  appoint  trustees,  and  to  take  all  the  ne- 
cessary security  for  the  debt.  It  the  plan  of  Mr. 
SHEPARD  prevailed,  he  believed  that  the  legisla- 
ture would  in  a  few  years  get  back^he  debt  con- 
tracting power,  in  full  force,  without  any  restric- 
tions. If  gentlemen  wanted  to  get  a  large  debt, 
running  through  a  long  series  of  years,  then  let 
them  vote  down  this  proposition  of  his,  (Mr.  H's)  - 
or  let  them  make  it  too  lax  or  too  strict,  as  was 
proposed  in  the  amendment  of  Mr.  SHEPARD.— 
In  15  years,  if  the  legislature  had  power  to  create 
debt,  we  should  find  ourselves  in  the  full  career 
of  debt  and  taxation. 

Mr.  WORDEN  said  that  if  the  proposition  con- 
tained anything  substantial,  there  would  be  some- 
thing to  entitle  it  to  consideration.  He  would  not 
call  it  deceptive  or  demagoguish,  but  it  was  spe- 
cious and  fallacious.  The  gentleman  (Mr.  HOFF- 
MAN) now  was  the  recipient  of  the  favors  ot  a 
government  that  taxed  the  people  of  this  State 
$5,000,000  for  mischievous  purposes,  to  carry  on 
a  war  that  would  cost  this  state  $10,000,000,  and 


947 


he  (Mr.  H.]  made  no  complaint  about  this  tax; — 
the  proposition  of  Mr.  H.  would  not  prevent  the 
people  of  this  State  from  being  taxed.  He  seek" 
to  put  no  limit  on  the  general  government  in  it 
power  to  create  debt*.  The  people  now  paid  $3, 
000,000  tor  local  taxes ;  and  this  proposition,  tho 
it  gave  the  people  the  power  to  vote  for  a  tax,  ye 
it  gave  the  Legislature  the  power  to  veto  the  ac 
at  their  next  session — the  people  then  had.  n< 
power  over  this  veto.  This  was  a  delusion,  am 
intended  to  deceive  the  people.  Why  this  at 
tempt  to  save  the  people  in  the  penny,  while 
they  were  open  to  robbery  by  the  pound  ?  It  was 
a  specious  pretence  to  deceive  the  people  with 
the  idea  that  they  were  to  be  saved  from  debt  am 
taxation  in  this  way.  In  every  portion  there  was 
deceit.  Let  gentlemen  look  back  to  the  legisla 
ture  of  1836,  and  they  will  find  that  had  it  no 
been  for  that  legislature,  which  was  then  the  trm 
conservative  branch  of  the  government,  the  stati 
might  now  be  groaning  under  additional  millions 
of  debt.  While  the  members  of  the  Legislatur 
acted  upon  their  individual  responsibility,  they 
would  be  cautious  in  their  acts  ;  but  relieve  them 
from  that  responsibility  by  giving  to  the  peo- 
ple the  approval  of  all  laws  to  create  debt 
and  this  conservative  feature  of  our  representa- 
tive government  is  gone,  and  log-rolling  woulc 
be  open  and  bold  in  the  halls  of  legislation,  invitee 
by  this  very  provision.  Upon  every  feature  of 
this  section  was  written  distrust  of  the  intelli- 
gence of  the  people,  and  it  was  subversive  o 
every  principle  of  a  representative  government, 
He  (Mr.  W.)  believed  that  under  this  very  propo- 
sition, debt  upon  debt  could  and  would  be  con- 
tracted. He  believed  that  the  members  of  the 
legislature  coul  i  be  trusted  on  their  honors  anc 
oaths;  anu  that  they  would  not  now,  as  matters 
stood,  propose  any  debt,  unless  it  is  absolutely 
necessary.  But  if  this  proposition  passed,  a  mem- 
ber of  the  legislature  might  ease  his  conscience 
by  voting  for  a  tax  law,  (which  he  really  did  not 
prove,)  merely  because  it  was  to  be  submitted  to 
the  people ;  and  that  they  would  have  the  power 
to  do  as  they  pleased  about  it 

Mr  HOb'FMAN  denounced  the  remarks  of  Mr. 
WORDEKT  as  miserable  sophisms  He  (Mr,  H.) 
had  never  voted  to  enlarge  federal  power,  but  al- 
ways to  restrict  it,  whilst  he  had  exeicised  a  seal 
in  Congress.  The  whole  argument  of  the  gentle- 
man from  Ontario  was  founded  upon  the  circum- 
siauce  ot  his  (Mr,  H.)  holding  an  otlice  under  the 
Federal  government.  But  he  alledged  that  his 
acts  would  show  him  to  have  been  at  no  time  a 
fcreat  advocate  for  ihe  extent  of  the  power  of  that 
gov.  rnmerit.  So  lar  from  a  distrust  of  the  people, 
his  article  was  founded  upon  the  belief  that  the 
people  knew  as  well  as  their  representatives  what 
was  the  best  for  themselves.  Log-rolling  would 
be  prevented  by  the  provision  that  but  one  law 
should  be  submitted  to  the  people  at  the  same 
time.  He  distinctly  affirmed  what  the  gentleman 
denied,  that  the  Legislature  would  be  prevented 
by  this  section  fiom  creating  new  debts.  But  how 
could  the  Convention  pass  on  any  measure  here, 
that  could  restrict  federal  power.  He  did  not 
want  this  tax  creating  power  left  with  the  Legis. 
lature;  he  knew  what  the  power  of  corrupt  lob- 
by black-legs  could  do  on  the  Legislature,  but 
these  public  robbers  would  have  little  effect  on 


the  people  at  large.  His  proposition  was  area. 
sonable  safe-guard  ;  it  would,  if  passed,  protect 
the  people  in  all  their  rights  and  privileges  from 
the  dreadful  calamity  of  a  great  debt ;  and  ihen 
if,  after  the  people  have  passed  a  law  to  create  a 
tax,  that  law  is  found  to  be  oppressive,  then  by 
his  proposition,  power  is  given  to  the  Legislature 
to  repeal  it.  He  hoped  it  might  pass;  and  not  be 
met  with  the  deception  and  stupidity  of  the  gen- 
tleman from  Ontario,  (Mr.  WORDEN.) 

Mr.   SIMMONS  hoped  no  such   proposition 
would  be  put  into  the  constitution ;  it  was  a  new 
thing,  and  never  was  done  in  this  country;  it  was 
going  back  to  the  old  form   of  personal  govern- 
ment as  practised  by  the  Athenians  and  Romans. 
Under  it,  if  it  passed  it  would  enable  the  Legisla- 
ture always  to  report  a  log-rolling  plan  for  a  tax, 
to  be  "  submitted  to  the  consideration  of  the  peo- 
ple."    He  was  in  favor  ot  a  good  credit  system ; 
without  it  we  never  should  have  had  the  Erie  ca- 
nal.    We  wanted  more  internal  improvements. — 
A  recent  survey  had  shown  that  117  miles  through 
the  northern  part  of  the  state  of  New- York  was 
capable   of  steamboat  navigation,   except  about 
eight  miles;  and  this  done,  the  Black  River  and 
all  others  would  be  connected.     As  to  the  allu- 
sion to  cities,   he  would  say  that  in  the  original 
the  word  city,  meant  "  state."     He  did  not  much 
believe  in  cities.     "  God  made  the  country,  and 
man  made  the  town,"  and  no  mistake.     A  city  is 
a  great  political  churn;  the  humbug  is   imported 
from  abroad,  it  is  localized  in  the  city  ;  the  votes 
are  made ;  and  it  is  the  same  as  if  one  man  voted 
sixteen  times.     But  New- York   is  the  Empire 
State,  and  very  soon  it  is  heard  of  at  Washing- 
ton, and  is  regarded  as  the  voice  of  the  true 
church.     [Laughter.]     He  had  been  taxed  with 
hearing  a  great  deal  of  the  same  arguments  which 
had  been  advanced  here  this  morning  at  a  time 
when  he  had   a  seat  in  the  Legislature.     He  was 
opposed  to  the  ideas  advanced,  which  were   in 
substance  that  the  Legislature  should  be  made  a 
mere  committee,  which  should  report  in  due  or- 
der under   particular  directions.     He  compared 
the  state  of  New- York  to  a  triangle,  the  several 
parts  of  which  had  different  interests,  making  up 
a  perfect  whole;  and  all  these  interests  should  be 
properly  taken  care  of.     The  Erie  canal  had  been 
juilt  with  money  borrowed  in  Europe,  by  which 
;he  great  West  had  been  rendered  prosperous. — 
HLe  would  do  justice  to  that  portion  of  the  state, 
which  he  knew  had  no  jealousy  of  other  parts  of 
;he  State,     His  own   region  was  one  where  the 
ron  mining  principle  prevailed,  always  the  last 
:o  come  to  perfection  ;  and  there  should  be  no 
constitutional  .provision  which  should  prevent  the 
^egislature  from  holding  out  an  impartial  hand  in 
aid  of  all  interests  in  the  different  parts  of  the 
State.     He  could  not  assent  to  carry  this  question 
o  the  polls,  by  which  isms  would  only  be  perpet- 
jated  by  appeals  to  local  feelings. 

Mr.  NICOLL  said  that  no  one  reform  had  been 
ailed  for  more  emphatically  or  earnestly  by  the 
jeople  than  that  a  proper  restriction,  in  the  mat- 
er of  creating  debt  should  be  imposed  upon  the 
egislature.  Believing  that  entire  safety  was  se- 
ured  by  the  provisions  of  the  section  under  con- 
ideration,  he  should  give  them  his  support.  In 
ubmitting  the  creation  of  a  debt  to  the  people  in 
he  manner  provided,  the  danger  arising  from  a 


948 


combination  of  sectional  and  local  interests  was 
effectually  removed.  Management  and  chicanery 
may  and  too  often  will  carry  an  iniquitous  project 
through  the  legislature, but  who  would  not  see  that 
such  a  thing  was  next  to  impossible  with  the  whole 
people — when  they  were  called  to  vote  upon  the 
propriety  of  establishing  a  single  debt  for  a  sin- 
gle purpose,  and  to  provide  at  the  same  time  a 
tax  for  its  repayment  at  a  comparatively  early 
period.  Should  a  proj  ect  under  such  precautions 
receive  the  sanction  of  a  majority  of  the  whole 
people,  we  should'  be  bound  by  every  considera- 
tion to  regard  it  as  calculated  to  promote  the  gen- 
eral welfare.  The  experience  of  the  past,-  had 
demonstrated  that  to  leave  to  the  legislature  the 
unrestricted  power  to  pledge  al  their  will,  to  any 
extent  and  for  any  time,  the  property  of  every 
individual  in  theState  was  productive  of  the  gross- 
est injustice.  The  gentleman  from  Essex  (Mr. 
SIMMONS)  had  said  that  to  put  a  limitation  upon 
this  arbitrary  power,  in  the  manner  now  proposed 
was  in  effect  to  establish  a  new  era  in  the  history 
of  representative  government.  It  might  be  so  but 
he  would  venture  to  say  to  his  friend  that  the  peo- 
ple would  justly  regard  the  success  of  this  propo- 
sition as  a  sure  indication  of  the  vast  progress  now 
making  in  the  science  of  government.  He  hoped 
that  in  making  this  Constitution,  we  should  in- 
deed create  a  new  era,  and  that  it  might  be  a  joy- 
ful one  for  those  who  were  striving  to  promote  the 
greatest  good  of  the  greatest  number.  This  should 
be  the  object  which  all  the  true  friends  of  the 
people  should  seek  to  attain,  A  restriction  upon 
the  debt  creating  power  would  eminently  favor 
such  an  object,  and  he  earnestly  hoped  it  would 
be  made  a  part  of  the  fundamental  law  of  the 
land. 

Mr.  CAMBRELENG  said  this  was  no  new 
provision  in  a  Constitution,  and  he  read  from  the 
Constitution  of  New  Jersey  to  show  that  it  had 
been  adopted  there.  This  provision  had  its  ori- 
gin in  the  proceedings  of  1835,  and  in  the  legis- 
lature of  this  State  in  1842,  in  the  passage  of  the 
People's  Resolutions;  and  grew  out  of  the  fact 
that  the  States  of  this  Union  owed  an  aggregate 
debt  of  $200,000,000,  two-thirds  of  which  was 
repudiated.  It  is  in  the  new  Constitution  of 
Louisiana,  where  it  amounts  to  almost  a  positive 
prohibition  to  borrow  any  money.  It  is  in  the 
Constitution  of  Texas,  of  Iowa,,  of  Missouri,  of 
Michigan,  and  in  every  Constitution  that  has 
been  adopted  since  the  act  of  the  legislature  of 
this  State,-  and  was  borrowed  from  the  ideas  and 
views  of  the  gentleman  from  Herkimer  (Mr. 
HOFFMAN).  He  was  astonished  at  the  remarks 
of  the  gentleman  from  Essex  (Mr.  SIMMONS). — 
He  did  not  expect  to  see  any  man  oppose  the 
principle  of  this  provision,  however  much  they 
might  be  opposed  to  the  form. 

Mr.  RHOADES  said  he  was  in  favor  of  some 
of  the  principles  contained  in  the  fifth  section  of 
this  report.  He  was  willing  to  vote  for  a  propo- 
sition which  would  prohibit  the  legislature  from 
creating  any  debt  beyond  what  was  provided  for 
in  the  third  and  fourth  sections  until  the  law  by 
which  such  indebtedness  should  be  created  had 
received  the  sanction  of  the  people.  He  had  al- 
ways maintained  that  the  whole  canal  debt  which 
the  state  nap?  owes,  had  been  created  in  accord- 
ance with  the  voice  ami  wishes  of  a  great  majo- 


rity of  the  people  without  distinction  of  party, 
but  we  had  not  been  in  a  situation  to  know  what 
the  voice  of  the  people  was,  only  as  it  had  been 
expressed  through  their  representatives.  There- 
has  been  therefore  a  continual  contest  going  on 
by  the  two  political  parties  in  this  state,  as  to- 
which  was  responsible  for  the  creation  of  this 
debt.  He  was  desirous  that  no  such  contest 
should  arise  in  regard  to  future  debts.  Much 
time  has  been  heretofore  consumed  in  the  legisla- 
ture of  Ihis  state  in  the  discussion  of  this-  subject., 
and  much  money  wasted  in  this  fruitless  effort, 
to  no  good  purpose.  He  was  therefore  in  favor 
of  having  the  voice  of  the  people  in  relation  to  the 
creation  of  future  debts,  given  in  a  manner  which 
could  not  be  mistaken,  and  when  that  was  once 
expressed  through  the  ballot  boxes3-it  would  place 
the  subject  beyond  the  reach  of  useless  and  un- 
profitable controversy. 

There  were,  however,  some  provisions  in  this> 
section,  to  which  he  could  not  give  his-  assent. — 
There  was  no  necessity  that  in  every  case  of 
loan  a  direct  tax  should  be  levied  to  pay 
the  interest  on  such  loan,-  and  create  a  sinking 
£und  to  pay  the  principal  in  18  years,  as  is  here 
provided.  The  time  might  come,  when  money 
could  be  safelv  borrowed  on  a  pledge  of  the  canal 
revenues  and  when  these  revenues  would  furnish 
ample  means  to  pay  the  interest  and  extinguish 
the  debt  without  a  resort  to  direct  taxation.  It 
would  be  absurd,  therefore,  if  money  was  needed 
by  the  state,  to  look  to  a  direct  tax  to  pay  the  in- 
terest and  principal  of  a  loan,  when  the  state  pos- 
sessed other  means  ample  for  such  purpose. — ' 
There  were  other  provisious  in  the  section  which 
he  did  not  approve  ;  which  if  suffered  to  remain # 
would  compel  him  to  vote  against  the  section. — • 
He  belived  it  would  be  sufficient  to  get  the  sanc- 
tion of  the  people  to  the  creation  of  a  debt,  and 
when  once  created,  leave  it  to  the  discretion  of 
the  Legislature  to  provide  for  the  payment  of  the 
interest  and  principal,  according  as  circumstances 
shall  require.  Mr.  R.  said  he  would  send  up  a 
section  as  a  substitute  for  the  fifth  section,  which 
he  would  move  when  in  order,  and  which  is  as- 
follows ; 

*'  Ex-cept  the  debts  specified  in  the  third  and  fourth  sec- 
tions of  this  article,  no  debt  shall  hereatter  be  contracted 
by,  or  in  behalf  ol  this  State,  unless  such  debt  shall  be  au- 
thorised by  law  for  some  single  work  OP  object,  to  be  spe- 
cified therein,  and  no  such  law  shall  take  efl'ect  until  it 
shall,  at  a  general  election,  have  been  submitted  to  the 
:,  and  have  received  a  majority  of  all  the  votes  cast 
i  or  against  it  at  such  an  election." 
This  was  all  that  he  deemed  necessary  in  res- 
pect to  the  power  of  the  legislature  /to  create 
debts. 

Mr-  W.  TAYLOR  was  in  favor  of  the  proposi- 
tion ;  in  tiie  Legislative,  he  had  voted  for  this 
principle.  The  people  in  the  several  counties 
h:id  passed  resolutions  in  favor  of  this.  He  was- 
glad  his  colleague  (Mr.  RHOADES)  partially  favor- 
ed this  proposition.  If  we  had  a  surplus  on 
hand,  why  not  go  on  and  do  the  work  you  have 
to  do,  with  this  surplus,  and  not  create  a  debt  at 
all  ?  Had  this  been  done  in  1838,  the  people  ol 
New  York  would  have  been  millions  ot  dollars 
better  oft  ;•  the  revenues  could  have  t>«en  applied 
to  the  work,  instead  of  paying  the  interest  of  a 
debt,  leaving  the  lary;e  amount  of  principle  unpaid. 
This  propositioD,  instead  of  distrusting  the  inlelli. 


949 


gence  of  the  people,  was  in  re.ility  placing  the 
highest  amount  ol  confidence  in  them.  And,  by 
i;,  there  was  no  danger  of  anv  system  °f  log-roli- 
ing,  or  o!  the  creation  of  an\  givut  debt.  K»r  il 
ihey  find  lhal  two  orthiee  localities  hiive  combined 
to  lo-.roll  ati'X  bill  through,  the  pet  pie  will  vo  e 
against  it.  It  provides  all  proper  sale-guards  and 
restrictions,  and  ought  to  be  sustained. 

Mr.  MORRIS  thought  that  il  a  law  was  to  be 
passed  to  cic.t  e  a  debt,  it  ought  to  be  submitted 
to  ihe  people;  and  wherever  a  work  has  been  call 
ed  lor  and  sanctioned  by  the  people  it  has  always 
paid  i:s  expenses  and  produced  a  surplus.  And 
any  work  of  a  local  character  made  by  the  State 
lias  always  failed.  Often  have  schemes  for  local 
improvements  been  scouted  at  when  first  intro- 
duced, but  by  polity  organization  whenever  the 
voles  <>t  such  or  such  a  locality  were  wanted  at 
an  election,  then  that  law  has  passed.  Now,  tho' 
this  can  be  done  by  party  leaders,  it  never  can 
have  any  effect  on  the  people  at  large.  He  was 
opposed  to  the  amendment  of  the  gentleman  from 
Oneida.  On  referring  to  the  history  of  the  state, 
he  said  it  was  found  that  all  works  which  were 
general  and  had  met  the  approval  of  the  people, 
were  productive  of  good  in  themselves  and  of  a 
surplus  to  the  treaswy  of  the  slate.  Not  so  in  re- 
spect to  works  i  hat  were  local,  and  got  up  by  po 
litical  paities  and  combinations.  Il  this  section 
was  adopted,  it  never  would  stop  one  solitary 
work  that  the  interests  of  the  state  might  require  ; 
notwithstanding  the  thousands  of  local  acts  which 
had  an  effect  on  political  leaders. 

Mr.  BRUCE  moved  the  previous  question,  but 
withdrew  it  at  the  icquest  of  Mr.  RHOADKS. 

Mr.  RHOADKS  said  that  his  friend  and  col- 
league Mr.  TAYLOR,  had  expressed  regret  that  he 
(Mr.  R.)  could  nc  t  go  with  him  in  the  support  of 
this  entire  section.  When  in  1842  the  Peo- 
ple's Resolutions  were  brought  forward  in 
the  Assembly  by  the  gentleman  from  Herki- 
mer,  (Mr.  LOOMIS,)  he  (Mr.  R.)  and  his  col- 
league entertained  different  views  in  regard  to 
that  subject.  Subsequent  reflection  had,  howev- 
er, caused  him  to  change  his  mind  in  that  mat- 
ter, and  he  was  now  acting  with  his  friend  (Mr. 
T.)  as  they  were  both  pledged  to  their  constitu- 
ents to  do,  up  to  the  spirit  of  those  resolutions. 

Mr.  R.  said  he  had  now  these  resolutions  be- 
fore him,  and  if  his  colleague  would  examine  his 
substitute  for  the  fifth  section,  which  he  had  sent 
up  to  the  Chair,  it  would  be  seen  that  the  substi- 
tute embraced  all  that  was  contained  in  the  Peo- 
ple's Resolutions  of  1S42.  He  repeated,  there- 
fore, that  he  had  not  "  stopped  short,"  as  his  col- 
league had  intimated  ;  nor  should  he  fail  to  per- 
form all  that  he  had  pledged  himself  to  do. 

Mr.  SHEPARD  said,  1  desire  to  amend  the 
sections,  so  that,  "  except  the  debts  specified  in 
the  3d  and  4th  sections,  no  debt  shall  be  hereafter 
contracted  by,  or  on  behalf  of  this  state."  In  my 
judgment  these  sections  have  amply  provided  for 
these  ordinary  and  extraordinary  occasions  of 
debt  that  are  within  the  proper  purposes  of  the 
government.  In  the  first  place,  they  allow  debts 
to  meet  casual  deficits,  failures  in  revenue  and 
expenses  not  provided  for  to  the  extent  of 
$1,000,000,  and  this  is  a  much  larger  sum  than 
will  be  required  under  any  imaginable  circum- 
stances, except  in  times  of  war  or  domestic  tu- 


mult. The  revenues  of  the  canals  as  their  char- 
ges and  liabilities  are  paid,  will  be  added  to  I  he 
available  property  of  the  state,  and  thus  the  le- 
gislature will  be  able  ultimately  to  command  for  a 
peace  establishment,  between  three  and  four  mil- 
lions of  dollars.  I  see  no  good  reason  why  they 
should  be  allowed  to  transcend  that  limit.  In 
the  second- place  the  power  is  reserved  to  the 
State  to  contract  debts  to  any  amount  to  suppress 
insurrection  or  for  the  public  defence  in  time  of 
war.  Now,  I  ask,  for  what  other  purposes  ought 
debts  to  be  contracted  by  the  public  ?  Since  the 
establishment  of  our  government  but  one  other- 
purpose  has  existed  for  which  the  legislature  has 
ventured  to  incur  debt — I  mean  for  internal  im- 
provements, and  upon  this  subject  I  desire  very 
briefly  to  present  several  propositions  to  the  con- 
sideration of  the  Convention.  And  first,  I  assert, 
that  the  State  government  ought  not  to  embark  in 
the  construction  of  canals  or  rail  roads,  01  any 
other  species  of  internal  improvement,  except  for 
some  object  essential  to,  or  connected  with 
its  administration  or  defence ; — as  for  instance, 
the  transportation  of  troops  in  time  of  war. — 
It  is  not  the  business  of  government  to  be- 
come a  competitor  with  individuals  in  any  branch 
of  industry  or  of  enterprise.  It  has  other  and  lof- 
tier functions  to  perform.  It  is  not  instituted  to 
construct  mighty  and  magnificent  works — these 
are  no  monuments  of  its  beneficence  and  furnish 
no  index  to  the  happiness  of  the  people.  Its  sole 
object  is  to  afford  political  protection  to  mankind 
in  their  lawful  pursuits.  It  oversteps  a  safe  lim- 
it when  it  attempts  to  supply  conveniences  to 
trade  or  wealth  to  individuals.  I  think  this  po- 
sition might  be  amplified  with  great  advantage 
and  enforced  by  a  large  variety  of  illustrations  but 
the  brief  time  afforded  me  by  the  order  of  the  house 
will  not  permit  any  thing  more  than  its  statement 
in  an  abstract  form.  But  if  this  argument  did  not 
exist  there  is  another  that  appeals  to  us  as  prac- 
tical men  with  irresistible  force.  Our  experience 
convinces  us  that  the  State  ought  not  to  con- 
struct such  works  asl  have  mentioned.  Individ- 
uals, incited  by  that  most  general  and  powerful 
of  motives,  the  desire  of  gain,  will  judge  far  bet- 
ter than  your  legislatures  of  when  and  where 
these  works  should  be  constructed.  They  pos- 
sess an  amount  of  knowledge  that  the  legislature 
can  rarely  attain,  as  to  the  necessity  for  making 
such  works.  It  is  inquired  whether  they  will 
pay  a  fair  interest  upon  the  investment  of  capi- 
tal. If  so  believe  me  they  will  be  made  but  if 
not,  then  il  would  bean  act  of  prodigality  for  the 
State  to  touch  them.  Individuals  will  be  made 
cautious  by  their  interest  but  legislatures  have  a 
very  slight  interest  to  keep  them  from  a  career  of 
reckless  extravagance.  They  desire  to  secure 
votes  by  pleasing  particular  localities  with  the 
grant  of  an  improvement  at  the  public  expense 
and  then  the  members  are  too  often  willing  to 
vote  an  improvement  in  a  remote  neighborhood 
agamsi  their  judgment  and  ti;eu  principles,  in  or- 
der to  secure  a  lew  votes  for  an  improvement  in 
their  own  vicini'y.  And  even  when  they  have 
the  most  earnest  disposition  to  do  right,  they  aie 
liable  to  be  deceived  by  the  representations  of  those 
who  fill  the  lobby,  and  are  deeply  interested  in 
the  completion  ol  the  project.  It  has  been  said 
lhat  private  enterprise  is  inadequate  to  the  largest 


950 


woiks.  Sir,  1  deny  this,  Those  stupendous  la- 
bors that  have  fertilized  the  soil  in  eveiy  land  and 
connected  together  all  climes  and  all  people,  have 
been  achieved  by  the  labor  of  the  citizen,  and  not 
of  the  government.  Look  at  the  rail  roads  m  En- 
gland and  in  this  country — look  at  those  in  your 
own  state — and  behold  what  vast  channels  of  trade 
have  been  cut  out  by  the  labor  of  tne  citizen ;  and 
these  v\orks  are  yet  in  their  infancy.  I  know  you 
will  find  some  that  have  failed — the  Catskill  and 
Canajoharie — the  Ithaca  and  Owego,  and  ihe  New 
York  and  Erie — but  those  weie  ruined  by  gratui- 
ties from  the  state  of  more  than  three  and  a  halt 
millions  of  dollars,  which  bred  corruptions  utier- 
ly  fatal  to  legitimate  enterprise.  It  has  been  your 
misfortune  to  palsy  whatever  you  touched  by  a 
loan  of  your  credit.  But  how  many,  let  me  ask, 
have  been  the  instances  of  a  failure  of  private  en- 
terprise, in  comparison  with  yuur  failures  in  slate 
projects?  You  have  made  eleven  canals,  and 
works  of  that  nature.  Two  of  them — the  Erie 
and  Champlam — are  profitable. 

Mr.  CHATFIELD:  They  have  not  paid  for 
themselves. 

Mr.  SHEPARD:  That  maybe;  but  I  am  will- 
ing to  concede  that  they  will  do  so.  But  how  is 
it  with  the  remaining  nine?  They  cost  you,  from 
the  year  1826  to  1814,  $12,620,035.  Their  defi- 
ciencies,  horn  1830  to  1844,  were  $3,195,767;  and 
tor  1844,  alone,  $461,776.  I  ask  could  private  en- 
terprise ever  have  committed  so  serious  a  blunder 
as  to  expend  twelve  millions  of  dollars  upon  works 
that  cost,  yeariy,  half  a  million  more  than  their 
profits?  Indeed,  I  think  not.  But,  sir,  the  Erie 
and  Champlain  canals  may  be  spoken  of  again,  in 
this  discussion.  Of  those  works  I  am  proud.  I 
am  glad  they  were  undertaken;  but,  in  my  judg- 
ment, they  ewe  much  of  their  success  to  good  for- 
tune. They  pay;  but,  I  ask,  how  many  of  the 
public  works  undertaken  by  the  other  state  gov- 
ernments do  the  same  1  Look  at  Pennsylvania,  at 
Illinois,  at  Mississippi,  at  Michigan,  at  Arkansas, 
at  Ohio — and  show  me  the  state  works  that  pay  ? 
Two  hundred  millions  of  dollars  of  state  debt  was 
incurred,  and  where  are  the  works  that  pay  ?  Sir, 
you  can  find  no  parallel  in  the  history  of  individu- 
al enterprise  to  such  a  series  of  improvident  and 
unnecessary  public  works.  The  expense  of  con- 
structing, repairing,  and  managing  works  by  the 
public,  is  far  greater  than  by  individuals.  The 
proprietors  of  an  individual  undertaking  have  the 
power  to  oversee  it  themselves  ;  the  state,  howev- 
er, cannot  do  so,  but  must  depend  upon  agents, 
whose  interests  are  to  make  the  cost  of  construc- 
tion, repairs,  or  management  as  large  as  possible. 
The  proprietors  of  an  individual  undertaking  bar- 
gain for  labor  and  materials  more  cheaply  than 
the  state,  which  always  pays  the  highest  prices, 
and  has  its  work  the  mosUnefficiently  done.  Pro- 
prietors watch  carefully  the  amount  of  money 
drawn  from  their  own  pockets  by  any  work;  but 
the  drain  goes  on  a  long  time  Irom  the  treasury  of 
the  state  before  it  arrests  public  attention.  Now, 
sir,  I  desire  to  present  another  argument.  [Here 
the  PRESIDENT'S  hammer  fell,] 

Mr.  BRUCE  moved  the  previous  question.  Ayes 
40,  noes  19.  No  quorum. 

A  second  count  was  had.  Ayes  41,  noes  23 — 64. 

Mr.  STETSON:  No  quorum  ;  65  being  neces- 
sary. 


The  CHAIR  (Mr.  PATTERSON)  declared  it  to 
be  carried. 

Mr.  CHATFIELD  asked  what  was  the  main 
question. 

The  pending  question  was  on  Mr.  WORDEN'S 
amendment  to  strike  out  the  10th,  llth  and  12th 
lines  of  the  5th  section;  to  strike  out  all  after  the 
word  "  thereof"  in  the  15th  line,  and  the  whole 
of  the  16th  line.  Strike  out  the  word  "  approval," 
in  the  17th  line,  and  insert  the  word  "  passage." 
Strike  out  "  by  the  people"  in  the  18th  line  ;  and 
strike  out  the  four  last  lines,  being  the  last  clause 
of  the  section. 

Mr.  MANN  called  for  the  ayes  and  noes. 

They  were  ordered 

Mr.  STRONG  called  for  the  reading  of  the  sec- 
tion  as  amended. 

It  was  read. 

The  ayes  and  noes  resulted  thus — Ayes  34 
noes  70 : 

AYES-  Messrs.  Archer,  Ayrault,  F.  F.  Backus,  H,  Back, 
us,  Baker,  Brayton,  Bruce,  Bull,  Chamberlain,  Crooker, 
Dodd,  Dorlon,  Graham,  Hawley,  E.  Huntington,  Jordan, 
Marvin,  Nicholas,  O'Conor,  Parish,  Patterson,  Penniman, 
Porter,  Richmond,  Salisbury  Simmons,  W.  H.  Spencer, 
Stow,  Strong,  Taggart.Van  Schoonhoven,  Warren,  Wor- 
den,  A.  Wright— 34. 

NOES — Messrs.  Allen,  Bascom,  Bergen,  Bowdish, 
Brown,  Brundage.  Burr,  Cambreleng,  D.  D.  Campbell,  R. 
Campbell,  jr.  Chatfield,  Clark,  Clyde,  Cornell,  Cuddeback, 
Dana,  Danforth,  Dubois,  Flanders,  Gebhard,  Greene,  Har- 
rison, Hart,  Hoffman,  Hotchkiss,  Hunt,  Hunter,  A.  Hunt- 
ington, Hutchinson,  Jones,  Kemble,  Kernan,  Kingsley, 
Kirkland,  Loomis,  Mann,  McNeil,  McNitt,  Morris,  Mun- 
ro,  Murphy,  Nellis,  Perkins,  Powers,  President,  Riker, 
Ruggles,  Russell,  St  John,  Sanford,  Sears,  Shaw,  Sheldon, 
Shepard,  {Smith,  Stanton,  [Stephens,  Stetson,  Swackha- 
mer.Talt.J.  J.  Taylor,  W*.  Taylor,  Tilden,  Town*end, 
Tuthill,  Ward,  Waterbury,  White,  Witbeck,  Wood,  Yaw 
ger,  Youngs— 70. 

Mr.  WORDEN'S  amendment  was  lost.  ' 

The  question  then  recurred  on  the  amendment 
offered  by  Mr.  SHEPARD. 

Mr.  FLANDERS  demanded  the  ayes  and  noes 
on  this.  They  were  ordered,  and  resulted  ayes 
31,  noes  73. 

Mr.  SHEPARD'S  proposition  was  lost. 

Mr.  BAKER  asked  if  his  proposition  was  in 
order. 

The  CHAIR  said  it  was  not  in  order  when  it 
was  offered. 

It  was  only  offered  conditionally,  in  case  the 
proposition  to  strike  out  the  10th,  llth  and  12th 
lines  prevailed. 

The  question  was  then  taken  on  the  passage  of 
the  5th  section  : 

It  was  carried,  Ayes  72,  Noes  36,— 108.— 
Absent  20. 

The  6th  section  was  read  : — 

apj  6.  Every  law  which  imposes,  continues,  or  revives  a 
tax,  shall  distinctly  state  the  tax  and  the  object  to  which 
it  is  to  be  applied,  and  it  shall  not  be  sufficient  to  refer  to 
any  other  law  to  fix  such  tax  or  object. 

Mr.  BAKER  intended  to  move  to  re-commit 
the  5th  section,  with  instructions  to  the  commit- 
tee to  insert  the  amendments  he  had  offered,  and 
should  so  move  as  soon  as  they  reached  the  end 
of  the  article. 

Mr.  HOFFMAN  said  that  in  order  that  a  law 
might  show  what  &.  tax  was  for,  this  section  was 
inserted  ;  that  it  might  show  on  its  face  what  it 
was  passed  for,  and  that  there  should  be  no  neces- 
sity to  go  and  look  through  two  or  three  other 
acts  to  find  out  the  meaning  of  the  new  one. 


951 


The  section  was  intended  to  effect  this  and  noth- 
ing else. 

The  section  was  then  passed,  unanimously. 

Mr.  CHATFIELD  moved  the  following  as  a 
new  section  to  come  in  after  the  Gth  section  : 

^  _.  No  direct  tax  shall  be  levied  on  the  people  of  this 
State  so  long  as  the  revenues  ol  the  State  shall  be  sufficient 
to  meet  the  demands  ot  the  several  sinking  lunds  to  pay 
the  debts  of  the  State  in  the  preceding  article  provided, 
and  the  expenses  of  the  State  Government. 

Mr.  C.  said  it  was  not  the  policy  of  the  State  to 
impose  a  direct  tax  on  the  people  for  the  next  20 
years,  whilst  the  revenues  of  the  canals  produced 
a  surplus.  Mr.  C.  then  read  from  a  table  pre- 
pared by  himself,  relative  to  the  Salt  tax,  various 
statistical  matters  in  support  of  his  position.  He 
did  not  believe  the  next  ten  years  would  be  as  ex- 
pensive as  the  last  ten  years ;  he  did  not  believe 
it  would  go  over  $600,000  annually.  And  then 
you  will  have  to  raise  by  direct  tax  $250,000  or 
$2,500,000  in  ten  years.  Mr.  C.  then  went  into 
the  history  of  the  Salt  tax,  and  the  revenues  that 
have  been  derived  from  them.  He  did  not  be- 
lieve we  should  have  over  $10,000  a  year  from 
the  salt  tax  :  nor  more  than  $101,000  from  the 
Auction  duties;  making  a  total  of  $111,000,  tho' 
he  had  put  it  down  at  $150,000;  add  to  this  the 
$200,000  secured  by  the  vote  of  yesterday ;  and 
you  have  $350,000 — leaving  $250,000  to  be  pro- 
vided for  by  direct  tax.  Now,  he  did  not  believe 
that  this  sum  should  be  raised  out  of  people  who 
were  not  at  all  benefitted  by  the  canals ;  whilst 
these  canals  were  producing  a  surplus  revenue. 
And  therefore  he  offered  this  section. 

Mr.  STOW  said  that  it  was  urged  here  substan- 
tially that  the  canals  ought  to  sustain  the  govern- 
ment because  '.hey  were  the  property  of  the  state. 
That  was  not  the  object  he  urged,  nor  was  that 
the  policy  of  the  government  in  building  them. — 
This  would  be  requiring  the  canal  counties  alone 
to  sustain  the  whole  expense  of  government.  He 
insisted  that  we  should  support  the  government 
by  taxation,  it  was  the  prudent  policy,  and  kept 
the  people  awake  to  the  direct  action  of  the  gov- 
ernment. Even  if  it  was  in  his  power  he  would 
not  free  the  people  entirely  from  taxation.  But 
above  all  he  would  never  consent  that  the  canal 
counties  should  pay  exclusively  for  the  suste- 
nance of  government.  It  was  as  impolitic  as  it 
was  unjust — these  revenues  should  go  where  they 
rightfully  belonged  and  were  required — to  the 
public  works.  'He  believed  that  the  people  fully 
understood  this  subject  of  taxation,  arid  were 
desirous  to  be  relieved  entirely  from  it. 

Mr.  PERKINS  was  under  the  necessity  of  dif- 
fering to  a  great  extent  from  those  with  whom  he 
usually  acted.  His  county  had  no  sort  of  interest 
in  any  further  works  of  improvement  present  or 
prospective.  He  was  glad  of  this — that  that  coun- 
ty never  would  stand  in  need  of  the  state  bounty. 
The  whole  state  in  1835.  pledged  the  resources 
of  the  canals  after  doing  justice  to  other  interests 
to  the  enlargement  of  the  Erie  canal.  It  was  not 
a  party  measure,  and  the  county  of  St.  Lawrence 
was  the  first  to  protest  against  a  departure  from 
that  system.  If  it  had  been  avowed  in  '42,  that 
these  revenues  were  to  be  taken  away  from  the 
canals  for  purposes  other  than  their  improvement, 
after  paying  the  debt  due  from  them  to  the  State, 
that  law  would  never  have  been  passed.  Such 


was  not  the  doctrine  of  the  veto  message.  He 
did  not  contemplate  that  the  Genesee  Valley  or 
Black  River  canal  would  ever  pay  much  more 
than  thru-  expenses,  but  the  question  of  tolls  was 
not  the  only  one  involved.  The  facilities  they 
would  afford  for  business  and  completion  would 
reduce  the  price  of  commodities  and  thus  repay 
to  the  people  what  they  might  be  obliged  to  pay 
for  the  support  of  government  in  the  way  of  tax- 
es. The  state  had  already  afforded  facilities  of 
that  description  to  other  counties.  And  even  if 
they  had  not  paid  profits  they  had  tended  to  pro- 
mote the  objects  to  which  he  alluded  above.  As 
the  Convention  had  already  legislated  in  this  mat- 
ter to  a  certain  degree  he  was  willing  to  go  and 
legislate  entirely  in  the  matter.  He  thought 
abundant  provision  had  already  been  made  for  the 
support  of  this  government.  All  the  taxation 
that  would  be  required  would  be  about  a  third  of 
a  mill  on  the  dollar — and  that  was  no  burthen  at 
all  on  the  people. 

Mr.  WHITE  proposed  the  following  amend- 
ment to  that  of  Mr.  CHATFIELD  : 

"  Provided,  however,  that  no  more  than  $200,000  annu- 
ally shall  b«i  takt  n  trom  the  the  canal  revenue,  until  the 
Kile  canal  enlargement,  and  the  Geuesee  Valley  and 
Black  River  canals  are  completed." 

Mr.  W.  TAYLOR  said  that  he  was  about  to 
submit  the  following  amendment,  which  he 
would  read  before  the  question  was  taken  on  the 
last  amendment : 

§  9.  If  at  any  time  after  the  period  of  five  years  from 
the  adoption  ol  this  constitution,  the  revenues  of  the  state 
unappropriated  by  the  last  preceding  article,  shall  not  be 
sufficient  to  defray  the  necessaiy  expenses  of  the  govern- 
ment without  continuing  or  laying  a  direct  tax,  ilie  legis- 
lature may  at  its  discretion.supply  ihe  deficiency  in  whole 
or  in  pirt,  from  the  surplus  revenues  ofihe  canals,  after 
complying  with  the  provisions  of  the  first  two  sections  of 
the  last  preceding  article  for  paying  the  interest  and  ex- 
tinguishing the  principal  of  the  canal  and  general  lund 
debt. 

He  was  disposed  to  be  liberal  in  this  matter. — 
He  would  allow  the  tax  which  he  considered 
would  be  necessary  for  five  years,  to  run  for  that 
time,  and  then  he  would  leave  the  question  to  the 
discretion  of  the  legislature.  We  had  already 
guaranteed  the  completion  of  the  public  works, 
and  he  would  not  guarantee  the  continuance  of  a 
tax  to  a  period  even  alter  that  work  was  perform- 
ed. Mr.  T.  considered  that  there  had  been  a 
great  change  in  the  course  of  certain  politicians 
in  regard  to  the  question  of  taxation  since  1S42. 
Then,  those  who  were  now  so  clamorous  almost 
in  favor  of  taxation,  were  the  most  bitter  denun- 
ciators of  it.  He  trusted  that  this  proposition 
would  be  adopted.  He  desired  a  vote  upon  it,  so 
that  gentleman  might  show  their  hands. 

Mr.  CHATFIELD  hoped  that  none  of. these 
amendments  would  prevail.  He  desired  to  pre- 
sent to  the  Convention  the  question  of  direct  tax- 
ation or  no  taxation,  and  he  desired  that  every 
member  here  might  record  his  vote  on  the  sub- 
ject. Gentlemen  here  talked  as  if  these  canals 
were  the  exclusive  property  of  the  west,  and  as 
if  they  had  exclusive  control  over  them.  The 
position  was  a  falsehood,  and  unjust  to  the  other 
portions  of  the  State,  which  had  been  and  would 
be,  directly  or  indirectly  liable  for  the  construction 
and  continuance  of  these  works.  Gentlemen 
were  willing  to  tax  the  people  in  a  thousand 
ways,  but  were  not  willing  to  tax  those  who 


952 


transported  produce  on  the  canals,  a  single  cen 
for  the  support  of  government.  The  great  wes 
already  paid  nearly  half  the  tolls  of  these  canals 
and  it  was  now  proposed  to  give  them  a  greatei 
chance  for  competition,  to  the  injury  of  produc- 
tion in  the  State,  by  reducing  the  tolls.  This  he 
did  not  consider  just  and  fair.  Mr.  C.  was  sur- 
prised at  the  votes  of  the  gentlemen  from  St. 
Lawrence  to-day  and  yesterday,  and  insisted  thai 
they  were  directly  antagonistic  to  the  doctrine  ol 
the  Veto  message.  He  thought  the  Governor 
would  have  ample  occasion  to  cry  out  with 
Shakspeare,  "  God  save  me  from  my  friends." — 
Mr.  C.  further  urged  his  views. 

Mr.  HARRIS  enquired  how  the  gentleman 
proposed  to  meet  the  expenses  of  government  be- 
yond the  $200,000  already  appropriated  for  that 
purpose. 

Mr.  CHATFIELD  desired  to  have  the  vote  di- 
rectly on  the  question  of  taxation  and  no  taxation. 
If  the  proposition  was  adopted,  then  the  vote  of 
yesterday  could  be  reconsidered. 

Mr.  RUSSELL,  in  reply  to  Mr.  C.,  said  that 
the  delegates  from  St.  Lawrence  did  not  consult 
the  Governor  on  any  of  these  questions.  But  he 
denied  that  the  Governor  or  any  statesman  in  this 
country  would  deny  the  right  of  the  people  to  tax 
themselves.  Mr.  R.  deprecated  what  he  consider- 
ed to  have  been  the  disgraceful  appeals  to  the 
principles  of  demagogueism  on  this  question,  that 
had  been  made  to  the  people  by  gentlemen  of 
both  parties  here.  Mr.  R.  was  in  favor  of  the 
principle  of  direct  taxation  to  at  least  one-third 
of  the  support  of  government.  It  would  tend  to 
a  more  watchful  care  of  the  government  on  the 
part  of  the  people.  Mr.  R.  said  that  he  fully  sus- 
tained the  proposition  of  Mr.  TAYLOR. 

Mr.  LOOMIS  regretted  to  see  his  friend  from 
St.  Lawrence  so  much  excited  on  this  subject. — 
Mr.  L.  did  not  believe  the  gentleman  would  at- 
tribute such  motives  in  his  cooler  moments,  as  he 
had,  to  the  action  of  gentlemen  here.  Mr.  L. 
could  not  fully  agree  with  the  amendment  of  Mr. 
CHATFIELD.  If  the  $350,000  appropriated  to  the 
support  of  the  government  by  the  last  article 
should  not  be  sufficient,  then,  under  the  gentle- 
man's provision,  there  would  be  no  authority  for 
the  legislature  to  provide  for  the  deficiency.  He 
could  not,  therefore,  go  for  the  amendment  under 
those  circumstances.  Mr.  L.  alluded  further  to 
the  amendment  of  Mr.  WHITE,  adopted  yester- 
day, as  rendering  the  adoption  of  the  amendment 
of  Mr.  C.,  at  this  time,  impolitic.  He  urged  also 
that  that  provision  prevented  the  enlargement  of 
the  Oswego  canal,  so  easily  to  be  produced,  and 
thus  gave  an  advantage  to  Buffalo  as  against  Os- 
wego. 

Mr.  TALMADGE  thought  that  the  provisions 
already  made  would  check  the  expenses  of  the 
legislature  through  improvident  appropriations, 
but  if  not,  he  would  have  them  thrown  directly 
on  the  Vesponsiblity  of  imposing  direct  taxation. 
He  thought  ample  provision  had  been  made  for 
an  economical  and  prudent  administration  of  the 
government. 

Mr.  STOW  in  reply  to  Mr.  LOOMIS,  denied  that 
ample  provision  was  made  for  the  Oswego  canal. 
But  at  any  rate,  that  canal  was  a  mere  shun-pike 
to  reduce  the  tolls  on  the  Erie  canal.  Mr.  S. 
went  on  further  to  denounce  the  Oswego  ca- 


nal as  aided  by  a  foreign  work,  &c.,  &c. — 
To  aid  such  a  thing  was  antagonistic  to  the  poli- 
cy of  the  state. 

Mr  LOOMIS  did  favor  free  trade,  and  he  de- 
sired to  see  the  business  not  confined  alone  to 
pass  through  the  city  of  the  gentleman's  resi- 
dence, Buffalo — the  boasted  Queen  city  of  the 
West.  He  was  aware  of  the  sensitiveness  of  the 
gentleman  on  this  subject — it  was  evinced  yes- 
terday, when  he  (Mr.  L.)  made  a  motion  to  in- 
clude this  canal.  He  could  well  understand  the 
interest  of  the  gentleman  on  this  subject.  He 
Mr.  L.  desired  to  see  all  parts  of  the  State  equal- 
ly favored. 

Mr.  STOW  rose  to  reply,  when 

Mr.  MURPHY  raised  the  point  of  order.  The 
gentleman  from  Erie  and  Herkimer  had  both  spo- 
ken on  this  question. 

The  CHAIR  decided  the  point  of  order  to  be 
correct. 

Mr.  MARVIN  further  opposed  the  amendment. 
He  reviewed  the  previous  action  of  the  Conven- 
tion, showing  what  had  been  proposed,  and  what 
had  been  appropriated  from  the  canal  revenues. 
The  result  was  a  compromise,  reducing  the 
amount  of  the  sinking  fund  to  $1,650,000.  What 
followed  ?  The  original  report  of  the  finance  com- 
mittee appropriated  only  $172,500  to  the  ordina- 
ry support  of  government.  That  was  every  dol- 
lar thus  appropriated.  We  yesterday  appropria- 
ted $200,000  for  the  same  purpose.  The  debt  has 
been  confessedly  fully  provided  for.  When,  af- 
ter this,  he  saw  gentlemen  still  claiming  that 
every  dollar  of  the  surplus  should  be  left  to  be 
frittered  away  by  the  legislature,  he  held  up  these 
gentlemen  to  the  country  as  being  hostile  to  in- 
;ernal  improvements,  and  the  completion  of  our 
unfinished  works.  They  could  not  escape  from 
:his  position.  And  now  it  was  gravely  proposed 
to  fix  a  rule  in  the  constitution,  that  under  no 
circumstances  should  the  state  ever  levy  a  tax. — 
Such  a  proposition  was  little  short  of  treason  to 
;he  government. 

Mr.  MURPHY  said  that  if  he  might  be  allowed 
to  classify  the  different  interests  in  this  house, 
vhere  there  should  be  no  interest  but  the  interest 
)f  the  whole  state,  arid  where  all  are  actuated  by 
he  same  spirit  of  patriotism,  and  to  designate 
;hem  according  as  they  have  manifested  them- 
selves here,  he  would  say  that  there  were  at  least 
:hree  such  interests.  One  was  in  favor  of  apply- 
ng  the  surplus  revenues  after  paying  the  amount 
iet  apait  for  ttie  public  debt,  to  the  completion  of 
lie  canals  at  all  hazards ;  another  was  opposed  to 
;he  continuance  of  the  state  tax  in  any  event; — 
and  the  third,  at  the  head  of  which  was  thechair- 
mon  of  the  finance  committee,  (Mr.  HOFFMAN,) 
vas  in  favor  of  reimbursing  the  state  for  the 
amount  advanced  by  it,  either  directly  or  indi- 
rectly, for  the  construction  of  the  canals.  For 
limself,  he  professed  to  belong  to  all  these  inte- 
rests ;  and  he  thought  it  would  appear  that  there 
was  really  no  existence  of  the  distinctions  to  which 
le  alluded,  among  the  members  of  the  conven- 
ion.  He  made  these  remarks  in  view  of  the  pro- 
>osition  which,  in  the  spirit  of  compromise,  he 
tad  made  the  other  day,  as  an  amendment  to  £lie 
amendment  of  the  gentleman  from  Schoharie  (Mr. 
CK,)  to  the  substitute  of  the  gentleman  from 
Herkimer  (Mr.  LOOMIS,)  for  the  article  of  the 


953 


finance  committee.  The  gentleman  from  Scho- 
harie proposed  to  set  apart  S'l  ,'2i  )d,i  M)i)  annually 
towards  the  payment  of  the  in  to  rest,  and  princi- 
pal of  the  canal  debt,  instead  of  #1,300,000  aspro- 
vided  in  the  amendment  of  the  grntk'inan  from 
Herkimer,  and  after  setting  apart  $;>(>0,00()  annu- 
ally until  the  canal  debt  shall  be  paid,  for  the  in- 
terest of  the  general  debt,  and  $1,500,000  annual- 
ly when  the  canal  debt  shall  be  paid  for  the  ex- 
tinguishment of  the  general  fund  debt,  to  pay 
.'KJOofthe  remaining  surplus  towards  the 
expense  of  the  government  of  the  State,  and  the 
residue  to  complete  the  Erie  and  other  canals. — 
His  own  amendment  was  to  this  last  proposition, 
and  was  to  the  effect  that  no  appropriation  should 
be  made  for  the  completion  of  the  public  works 
until  the  half  mill  tax  sh©uld  cease.  He  was  in 
favor  of  completing  those  works  ;  because  it  was 
not  only  the  interest  of  the  county  of  Kings,  and 
especially  of  Brooklyn  and  Williamsburgh,  but 
because  he  believed  it  to  be  in  consonance  with 
their  wishes.  Kings  county  had  always  favored 
the  construction  of  the  canals.  When  New  York 
and  the  river  counties  gave  almost  an  unanimous 
vote  against  the  construction  of  the  Erie  canal, 
his  own  county  cast  her  vote  in  its  favor.  Her 
representatives  have  steadily  adhered  to  the  same 
policy  since.  He  intended  by  his  own  vote  to 
keep  up  that  character.  But  his  county  was  also 
adverse  to  State  taxes  as  at  present  levied.  His 
constituents  did  not  object  to  a  just  tax  for  the 
purposes  of  the  state  ;  but  they  had  been  made 
tb  feel  that  the  present  tax  is  unequal  and  unjust 
upon  them.  By  the  low  valuation  of  property  in 
other  parts  of  the  State  by  the  assessors,  afc 
the  full  valuau  ms  in  Kings  county,  that  county 
is  made  to  pay  one  hundred  per  cent,  more 
than  most  of  the  State.  Relief  against  this 
inequality  has  been  asked  for  from  the  legislature 
but  in  vain..  We  feel,  therefore,  desirous  to  be 
relieved  from  this  tax,  for  this  reason  if  for  no 
other.  But,  no  community  wishes  to  be  taxed, 
and  in  this  feeling  we  participate.  On  the  other 
hand,  it  is  claimed  by  the  finance  committee  that 
there  is  due  from  the  canals  to  the  general  fund, 
or,  to  speak  more  correctly,  to  the  state,  an  amount 
the  annual  interest  of  which  is  $672,500,  and  that 
this  should  be  reimbursed  before  the  canals  should 
be  completed.  In  this  view  he  was  willing  to 
coincide,  and  to  provide  for  its  repayment.  Now, 
his  amendment  was  intended  to  meet  all  these 
views  ;  and  that  consistently  with  the  policy  as 
it  is  called  of  1842.  If  he  understood  the  gen- 
tleman from  Schoharie,  the  appropriation  of  $1,- 
200,000  will  provide  a  fund  sufficient  to  discharge 
the  canal  debt  according  to  the  guaranty  of  the 
act  of  that  year,  within  the  time  contemplated  ; 
that  is,  such  a  fund  as  will  be  equal  to  one  ere 
ated  by  the  annual  appropriation  of  an  amount 
equal  to  one- third  of  the  interest  of  the  canal 
debt  remaining  unpaid.  By  transferring  the  $100,- 
000  difference  between  the  $1,200,000  and  $' 
300,000  to  the  general  fund  for  the  expenses  of 
the  state,  we  would  have,  in  addition  to  the  $]  72,- 
000  set  apart  for  that  purpose,  $272,000,  a  sum 
•which,  with  the  other  revenues  of  the  state,  de- 
riveable  from  the  auction  and  salt  duties,  will 
yield  enough  for  the  ordinary  expenses  of  the 
government.  If  that  is  so,  then  the  effect  of  his 
amendment  would  be  to  furnish  a  sufficient  fund 

94 


without  taxation  or  interference  with  the  comple- 
ion  of  the  canals,  which  Ujp  proposed  by  the 
amendment  of  the  gentleman  from  Schoharie ; 
while  at  the  same  time  the  state  would  be  reim- 
bursed the  annuity  of  $672, '>00,  for  the  two  a- 
nounts  of  $350,000  set  apart  for  the  interest  of 
the  general  fund  debt,  and  $272,000  would 
amount  sufficiently  near  that  sum.  The  house 
would  recollect  that  he  was  prevented  from 
moving  his  amendment,  which  had  merely  been 
read  for  information,  by  the  call  of  the  previous 
question  upon  the*first  section  of  the  substitute 
f  the  gentleman  from  Herkimer ;  and  from  vot- 
ing for  the  sum  of  $1,200,000  instead  of  $1,300,- 
000  by  the  withdrawal  of  that  part  of  his  amend- 
ment by  the  gentleman  from  Schoharie.  He  was 
thus  compelled  to  vote  for  the  last  part  of  that 
amendment,  although  it  did  not  altogether  meet 
his  views,  or  else  vote  against  any  provision  for 
completing  the  public  works,  and  did  so  vote. — 
But  he  rose  to  state  now  that  he  was  prepared  to 
go  back  and  adopt  the  amendment  which  he  ori- 
ginally proposed,  but  he  could  not  vote  for  the 
proposition  of  the  gentleman  from  Otsego  (Mr. 
CHATFIKLD)  which  provided,  as  his  amendment 
did,  that  no  tax  should  be  levied  for  the  expenses 
of  government  as  long  as  the  canal  revenues  were 
sufficient,  but  which  did  not  reduce  the  amount 
appropriated  to  the  canal  fund  from  $1,300,000  to 
$1,200,000,  as  was  necessary  to  leave  sufficient 
for  the  purpose  of  completing  the  canals. 

Mr.  PA  i  TERSON  further  opposed  the  amend- 
ment on  the  ground  that  ample  provision  had  al- 
ready been  made  lor  the  expenses  of  government 
in  his  opinion. 

The  debate  was  continued  by  Messrs.  RHOADES, 
STETSON,  BASCOM,  WATERBURY,  when 

Mr.  BERGEiN  asked  for  the  previous  question* 
and  there  was  a  second,  and  the  main  question  or- 
dered. 

The  question  was  then  taken  on  Mr.  WHITE'S 
amendment,  and  there  were  ayes  53,  nays  56,  as 
follows : 

AYES— Messrs.  Angel,  Archer,  Al fault,  F.F.  Backus, 
H.  Backus,  Baker,  Kascom,  Brayton,  Bruce,  Bull,  D.  D. 
Campbell,  Candee,  Chamberlain,  Crooker,  Dana,  Dodd, 
Dorlon.  Gardner,  Gebhaid,  Harris,  Hawley,  Hotchkiss,  E. 
Huntington,  Hyde,  Jordan.  Kiikland,  Maun,  Marvin,  Me- 
Nitt,  Morris,  Murphy,  Nicholas,  O'Conor,  Parish,  Patter- 
son, Pennim'an,  Perkins,  Rhoades,  Richmond,  Salisbury, 
Smith,  K.  Sp.-ncer,  W.  11.  Spencer,  Stanton,  Strong,  Tag- 
gart,  Tallmadge,  Van  Schoonhoven,  Warren,  Whitf ,  Wor- 
den.  A.  Wriijhi  — 63. 

NOES— Messrs.  Allen,  Bergen,  Brown,  Brumlage,  Burr, 
Cambreleng,  ChatlMd,  Clark,  Clyde,  Cornell,  Cuddeback, 
Dantorth,  Uubois,  Flanders,  Graham,  Creene,  Harrison, 
Hart,  Hoffman,  Hunt,  Hunter,  A.  Huntington,  Hutchinson, 
Jones,  Reman,  Kingsley,  Loomis,  McNeil,  Ne^'si  Nicoll. 
Power*,Presiden t.lliker.Ruggles, Russell, St.  John, Sanfor.1, 
Sears,  fhaw,  Sheldon,  Sh/.'pard,  Stephens,  Stetson,  Swack- 
hamer,  J.J.  iVylor,  W.  Taylor,  Tilden,  Townsend,  Tut- 
hill,  Ward,  Waterbury,  Willard,  Witbeck,  Wood,  Yaw 
ger,  Youngs^uG. 

So  the  amendment  was  rejected. 

Mr.  W.  TAYLOR  asked  lor  the  question  on  his 
amendment. 

The  CHAIR  decided  the  amendment  not  to  be 
pending,  not  being  in  order  when  offered. 

Alter  aonre  conversation  as  to  the  point  of  order, 

Mr.  MURPHY  moved  to  lay  Mr.  CHATFIELD'S 
amendment  on  the  table. 

The  CHAIR  decided  this  moiion  not  to  be  in 
order,  the  previous  question  having  been  ordered. 


954 


The  question  was  then  taken  on  the  amendment 
ot  Mr.  CHATFIELD,  and  there  were  ayes  42,  nays 
72. 

So  the  amendment  was  rejected. 

Mr.  W.  TAYLOR  moved  that  the  Convention 
take  a  recess.  Agreed  to. 

AFTERNOON  SESSION. 

Mr.  ST.  JOHN  offered  the  following  as  a  new 
section  to  come  in  after  the  6th  section : — 

K The  provision  contained  in  section  three  of  the  next 

preceding  article  for  the  disposition*;  the  canal  revenues, 
shall  continue  in  force  until  the  1st  day  of  January,  I860, 
and  after  that  time  the  whole  of  the  01  dinary  expenses  of 
the  state  government,  except  such  portions  thereof  as  shall 
be  provided  lor  by  other  means  than  by  a  direct  tax,  shall 
be  paid  from  tlie  aaid  canal  revenues;  and  no  direct  tax 
shall  thereafter  be  levied  upon  the  people  of  this  state  to 
pay  the  whole  or  any  portion  of  such  expense,  unless  there 
shall  be  a  deficiency  in  the  said  canal  revenues  to  pay  the 
same  after  complying  with  the  provisions  of  sections  one 
and  two  of  the  said  article. 

Mr.  RUSSELL  offered  the  following  as  a  sub- 
stitute for  the  section  : — 

i  7.  If  at  any  time  after  the  period  of  eight  years  from 
the  adoption  ot  this  Constitution,  the  revenues  of  ihe  state 
unappropriated  by  the  said  preceding  section  shall  not  be 
sufficient  to  defray  the  necessary  expenses  of  the  govern- 
ment without  continuing  or  laying  a  direct  tax,  the  Leg- 
islature may  at  its  discretion  supply  the  deficiency  in 
whole  or  in  part  from  the  surplus  revenues  of  the  canals, 
after  complying  with  the  provisions  ol  the  first  t\\  o  sections 
of  the  last  precding  article,  for  paying  the  interest  and 
extinguishing  the  principal  of  the  canal  and  general  fund 
debt  But  the  sum  thus  appropriated  from  the  surplus  re- 
venues of  the  canals  shall  not  exceed  annually  $360,<  00, 
including  <he  sum  ot  $200,000  provided  by  the  3d  section 
of  the  last  preceding  article  for  the  expenses  of  govern- 
men1  until  the  general  fund  debt  shall  be  extinguished  or 
until  the  Erie  canal  enlargement  and  Genesee  Valley  and 
Black  Hiver  canals  shall  be  completed;  and  after  that  debt 
shall  bi>  paid,  or  the  said  canals  shall  be  completed,  then 
the  sum  of  $67-2,500,  or  so  much  thereof  as  shall  be  neces- 
sary, may  be  annually  appropriated  to  defray  the  expen- 
ses'^ the  government. 

Mr.  VAN  SCHOONHOVEN  moved  to  amend 
by  inserting  ten  years  instead  of  five  years. 

Mr.  ANGEL  said,  that  this  was  the  balance  of 
the  interest  on  the  debt  that  the  general  fund 
claimed  against  the  canal;  and  that  the  sum  was 
lar^e  enough  to  cover  the  interest  for  eight  years. 

Mr.  RUSSELL  said  that  the  third  section  of  the 
original  report  was  stricken  out.  He  wanted  a 
specific  appropriation  of  these  surplus  revenues. 
The  friends  of  the  Erie  canal  wished  to  take  the 
other  two  canals  along  with  them  ;  and  so  he 
went  with  them.  But  he  thought  the  proposition 
of  Mr.  W.  TAYLOR  as  very  similar  to  Mr. 
HOFFMAN'S. 

Mr.  W.  TAYLOR  had  modified  his  original 
proposition.  The  canals  were  annually  indebted 
to  the  General  Fund  $'672,600.  He  would'  read 
his  proposition.  It  was  read  as  offered  above  by 
Mr.  RUSSELL. 

Mr.  RUSSELL  said  that  the  sum  he  had  put 
in  $322,500  would  come  within  the  estimate 
these  canals  had  to  pay  as  an  annuity  to  compen- 
sate the  General  Fund.  There  would  be  over 
$670,000  thus  appropriated  to  meet  the  Sinking 
Fund  and  the  State  expenses. 

The  proposition  was  then  read. 

Mr.  STETSON  was  opposed  to  this  proposition, 
there  was  no  point  in  it. 

Mr.  MARVIN  raised  a  point  of  order.  You 
cannot  in  the  same  bill  bring  forward  a  partial  re 


peal  of  a  provision  that  has  been  already  adopted 
without  a  reconsideration  of  that  section. 

The  CHAIR  said  the  gentleman  from  Clinton 
was  in  order. 

Mr.  STETSON  did  not  like  that  point  which 
left  it  to  the  discretion  of  the  legislature,  to  say 
whether  direct  taxes  should  be  continued  or  not. 
It  was  not  fair  to  those  who  paid  the  taxes.  Who 
is  to  determine  when  these  canals  are  to  be  com- 
pleted, or  when  this  direct  tax  is  to  cease  ?  As 
the  provision  now  stands,  this  thing  is  to  be 
thrown  into  the  elections ;  and  it  will  have  the 
effect  of  putting  off  the  completion  of  these  late- 
ral canals  for  many  years,  and  will  make  them  as 
expensive  as  possible.  The  two  interests  will  be 
eternally  at  war  with  each  other.  You  may  pre- 
scribe the  pill  in  any  shape,  but  the  people  will 
feel  the  medicine,  and  hold  the  doctor  responsi- 
ble. He  represented  40,000  freemen  on  this  floor, 
who  were  to  be  taxed  directly,  and  by  this  Con- 
vention. He  repeated  the  story  of  Dr.  Johnson, 
"  Taxation,  no  Tyranny."  He  added  that  per- 
haps they  put  the  iron  heel  of  taxation  on  the 
people,  lest  the  farmer's  ox,  should  forget  to 
draw.  This  was  the  doctrine  of  some  gentlemen 
on  this  floor.  He  wished  to  see  who  here  were 
willing  to  go  for  this  oppressive  taxation.  Let  his 
•ight  hand  forget  its  cunning,  and  his  tongue 
cleave  to  the  roof  of  his  mouth,  when  he  ceased 
to  stand  up  for  his  constituents,  who  were  writh- 
ing under  the  burthen  of  this  grinding  op- 
pression. Let  gentlemen  call  us  demagogues  if 
they  please  ;  let  them  bear  the  responsibility  of 
putting  this  tax  on  the  people  for  twenty-five 
ytars.  Let  their  posterity  see  who  was  in  favor 
of  these  lateral  canals :  let  it  crawl  up  on  the  pa- 
ges of  the  Constitution ;  let  them  twine  around 
it  the  garland  of  taxation,  if  they  choose,  and  as 
the  thorns  of  it  draw  the  blood  and  sweat  from 
the  brow  of  labor,  let  them  receive  the  curses 
they  will  have  heaped  upon  them  by  these  very 
laborers. 

Mr.  MURPHY  said  that  they  knew  veiy  well 
where  the  gentleman  from  Onond<)ga  (Mr.  TAY- 
LOR) is,  and  how  he  stands.  And  in  the 
matter  of  taxation,  he  would  hand  the  gentle- 
man from  Clinton  (Mr.  STETSON)  over  to  his  friend 
from  Herkimer,  whose  plan  continued  taxation 
till  the  debt  was  paid.  The  plan  ot  the  con.-rnit- 
tee  proposed  direct  taxes,  lo  be  continued  in  quite 
as  bad  a  manner  as  any  of  the  propositions  that 
had  been  adopted.  He  would  not  he  taunted  by 
the  gentleman  from  Clinton,  or  any  one  else,  about 
his  responsibility  to  his  constituents.  He  knew 
thai  respoKsibiluy,  and  felt  its  and  acted  accord- 
ingly. 

Mr.  STETSON  disclaimed  any  such  personal 
reflection.  The  remark  was  I  hat  fhe  vote  carried 
with  it  that  responsibility — that  he  was  himself 
free  from  that  responsibility. 

Mr.  MURPHY  replied  that  he  explained  fully 
this  morning  his  position  on  this  question,  as  ex. 
hibited  by  his  amendment — ihat  he  wanted  these 
canals  completed,  and  th;it  he  wished  to  avoui  tax- 
ation, and  to  have  a  lair  account  taken  between 
these  canals  and  thj  state.  His  amendment  would 
have  accomplished  this.  Now  had  he  been  ar- 
raigned for  inconsistency  by  any  body  else,  he 
would  not  perhaps  have  deemed  it  worthy  of  con. 
sideration — but  coming  from  one  who  voted  for 


955 


the  li!;n  k  River  can  il  originally,  and  now  came 
here  oppo-vd  to  it,  he  did  regard  it  as  calling  for 
some  r-'inai  k. 

*  Mr.  STETSON  replied,  and  Mr.  MURPHY  re- 
joined. 

Mr.  MURPHY  replied  as  to  the  $1,300,000  he 
had  voted  for.  It  was  because  Mr.  BOUCK  had 
withdrawn  hi*  plan  I'or  #1,200,000  and  as  there  was 
no  other  proposition  before  the  house,  there  was 
no  other  plan  fur  him  tc  vote  on. 

Mr.  W.  TAYLOR  said  he  had  offered  this  pro 
position  as  a  compromise;  he  would  not  attempt 
to  buy  votes  by  sacrificing  a  Principle.  The  Onei- 
da  Riv  jr  Impiovernent  had  $59,000  laid  out  on  it, 
and  only  wanted  $10.000  or  $15,000  to  complete 
the  lock.  He  trusted  they  would  act  here  upon 
principle — high  and  holy — and  not  on  log-rolling 
arrangement^.  It  was  unjust  .to  this  River  not  to 
tini>h  it  with  (lie  others. 

Mr.  MURPHY  withdrew  any  imputation  on  Mr. 
TAYLOR'S  motives. 

Mr.  WORDEN  regretted,  after  having  settled 
very  unanimously  yesterday,  and  on  principles  of 
concession  and  compromise  a  question  affecting 
great  and  important  interests,  that  it  should  be 
disturbed  again.  He  had  voted  finally  in  favor  of 
that  question,  but  with  great  reluctance,  and  not 
•without  apprehension  that  he  had  yielded  more 
than  he  ou^ht  to  have  done.  He  was  sure  he  had 
gone  as  far  as  his  constituents  would  justify,  and 
<uld  go  no  further.  Mr.  W.  said  he  would 
not  now  speak  of  the  merits  of  this  claim  against 
the  Erie  canal  of  thirteen  millions  of  dollars  :  but 
he  would  advert  to  what  had  al  eady  been  charg- 
ed on  that  canal.  The  cost  of  the  lateral  canals 
was  until  l.vj  ,  a  burthen  on  the  general  fund — 
when  these  ranals  were  authorised,  the  constitu- 
tion prohib:i.ed  tiie  legislature  from  taking  or  ap- 
plying the  tolls  or  revenues  of  the  Erie  and  Cham- 
plain  canals  to  the  construction  of  the  lateral  ca- 
nals or  to  any  other  purpose  than  the  completion 
of  the  Erie  and  Champlain  canals  and  the  payment 
of  the  debt  a.nd  interest  incurred  in  their  con- 
•struction.  When  the  Erie  and  Champlain  canals 
were  completed,  and  a  fund  created  out  of  the 
tolls  and  revenues  sufficient  for  the  payment  of 
the  debt  incurred  in  their  construction,  the  gen- 
eral fund  was  found  to  be  charged  with  the  cost 
of  all  the  lateral  canals,  and  the  debts  created  or 
authorised  to  be  created  for  their  construction. — 
All  these  liabilities  for  the  lateral  canals  were 
contracted  prior  to  1838,  and  prior  to  the  accum- 
ulation of  a  fund  for  the  payment  of  the  Erie  and 
Oharnplain  canal  debts.  This  liability  of  the  gen- 
eral fund  for  the  cost  of  the  lateral  canals  was 
over  nine  millions  of  dollars,  they  having 
cost  over  that  amount.  In  1841,  provisions  hav- 
ing been  made  for  the  payment  of  the  Erie  and 
Champlain  canals  debt,out  of  the  revenues  of  those 
canals,  the  whole  subject  of  the  claim  of  the  gen- 
eral i'und  on  those  canals  for  the  causes  now  sub- 
sisted on  the  collateral  aid  from  the  auction  and  salt 
duties  and  other  revenues  were  considered — a  bill 
;  hut  year  pas's«;d,which  in  effect  charged  on  the 
Erie  canal  the  entire  debts  of  the  lateral  canals, 
being  equal  to  $y,OiJO,UUU.  In  addition  to  which 
the  tolls  of  the  canals  to  the  amount  of  $200,000, 
annually  appropriated  to  the  use  of  the  State,  to 
^efniv  its  ordinary  expenses.  This  yearly  charge 
of  $200,000  being  equal  to  a  gross  charge  of  $5,- 


000,000,  making  over  $14,000,000  charged  on  the 
Krie  canal  in  Is  11,  and  relieving  the  General 
Fund  to  that  amount.  By  the  provisions  you 
have  adopted,  the  Erie  canal  is  to  be  charged 
with  the  3,000,000  loaned  to  the  New  York  and 
Erie  Railroad  and  the  other  loans  to  defaulting 
railroads,  and  the  entire  debt  of  the  General 
Fund  besides,  exceeding  in  all  $5,500,000.  You 
have  then,  said  Mr.  W.  charged  already  on  the 
tolls  and  revenues  of  the  Erie  canal  ove>  $20,- 
000,000,  and  all  this  is  on  account  of  what  has 
been  claimed  to  bg  due  by  reason  of  the  salt  and 
auction  duties  having  been  applied  to  the  con- 
struction of  this  canal.  Is  not  this  enough  ? — 
Can  you  safely  undertake  to  impose  other  and 
additional  burthens  on  this  canal  ?  He  made  this 
inquiry  in  no  spirit  of  intimidation,  but  in  the 
spirit  of  concession  and  compromise.  However 
it.  might  be  understood  in  the  eastern  part  of  the 
State,  the  farmers  of  Western  New  York  would 
believe  this  to  be  a  local,  sectional  tax  on  their 
productions.  It  would  fall  unjustly  upon  the  ma- 
jority of  the  voters  of  the  State.  They  might 
submit  to  the  impositions  already  laid  upon  them, 
or  which  was  about  the  same  thing,  on  the  tolls 
of  the  Erie  canal ;  but  they  would  not  consent  to 
additional  impositions.  You  now  propose  to  add 
to  the  burthens  already  imposed  $150,000  a  year, 
equal  to  three  millions  of  dollars,  making  the 
whole  charge  on  the  Erie  canal  more  than  $23,- 
000,000.  Now,  said  Mr.  W.,  I  appeal  to  the 
members  of  thi^Convention  as  representing 
the  entire  State-^R  there  is  not  already  a  sum 
cient  sum  charged  on  the  Erie  canal. — 
Is  it  wise,  or  politic,  now  to  cripple 
;t)at.  great,  work  in  iis  unfinished  condition  us  is 
proposed  with  an  additional  charge  of  $19,000,- 
000  over  that  imposed  on  it  by  (he  law  oi  1841? 
Mr.  W.  said  he  had  heard  with  surprise,  the  asser- 
tion here  that  the  Erie  canal  had  injured  the  tann- 
ing interests  on  the  North  river ;  thai  Ihe  agricul- 
tural interests  of  Western  N<  w  York  were  more 
flourishing  than  those  of  the  river  couniie.-.  The 
fact  might  be  so,  but  it  was  attributable  toother 
causes  than  the  Erie  canal.  He  could  point  Mis 
friend  from  Delaware  (Mr  WATERBCJRY,)  who 
had  spoke  on  this  subject  to  a  butler  caose  ^than 
he  had  assigned.  The  tanners  of  Western  New 
York  were  the  owners  of  a  iree  soil,  the  very  ti- 
de under  which  they  held,  prohibited  the  crea. 
tion  of  estates  partaking  of  all  the  objectionable 
fe.ituiesof  feudal  teiruies,  v\  hicli  he  believed  more 
than  -any  thing  else,  pressed  down  the  agricullu- 
ril  interests  of  this  section  of  the  Slate.  He  had 
desired  to  see  the  agricultural  interests  of  Ibis 
portion  of  the  State  relieved  from  these  encum- 
brances, upon  some  sound  principle  of  justice  and 
of  right.  Such,  he  believed  to  be  tho  wishes  of 
the  agricultural  portion  ot  the  we-urn  part,  of  the 
Stare.  He  hoped  to  see  the  fanners  of  the  entire 
state  what  those  of  the  western  portion  were,  the 
free  owners  of  the  free  .soil  they  cultivated.  He 
did  not  believe  such  a  slate  of  things  would  be 
liustened  by  t':is  attempt  to  throw  additional  bur- 
thens upon  the  we.-tr-rn  portion  of  the  State. 

The  gentleman  from  Suffolk, , (Mr.  CAMBREL- 
ENG,)  had,  t  he  other  day.spoken  of  the  enlargement 
as  prejudicial  to  the  interests  of  the  tanners  ol  Wes- 
tern N.York, and  said  they  must  soon  stop  the  grow- 
ing of  wheat,  as  had  been  done  in  the  river  coun- 


956 


ties  and  on  Long  Island.  That  was  possible,  but 
they  would  not  stop  their  progress  in  intelligence. 
enterprise  or  public  virtue  ;  while  they  remained 
the  same  class  of  men  they  now  are,  they  will  not 
be  arrested  in  prosperity  :  they  may  be  obliged  by 
reason  of  change  of  circumstances  to  change  their 
agricultural  productions,  but  all  such  changes 
would  be  the  result  of  practical  wisdom  and  tend 
to  increase  their  prosperity. 

We  are  endeavoring  to  settle,  said  Mr.  W., 
great  questions  of  public  interests,  to  provide  for 
the  payment  of  our  state  debt,  and  provide  for  the 
completion  of  the  unfinished  public  works.  He 
had  endeavored  to  settle  these  questions  in  the 
spirit  of  conciliation  and  compromise,  and  for  that 
purpose  had  gone  as  far  as  he  could  consistently, 
with  his  views  of  the  interests  of  the  entire  state. 
Will  you  have  this  conciliation — this  compro- 
mise, or  will  you  go  on  adding  burthens  on  the 
Erie  canal,  and  load  it  down  with  debts  and  taxes 
which  belonged  to  the  state  to  pay  ?  If  these  tolls 
out.  of  which  you  now  propose  to  pay  your  debts, 
come  out  of  the  producer,  or,  as  is  contended 
here  by  some  out  of  the  consumer,  it  equally  is  a 
local  tax — whether  they  are  paid  by  the  consu- 
mer in  New- York,  or  the  farmer  who  raises  the 
article,  the  principle  of  taxing  these  tolls  to  the 
additional  amount  now  proposed  is  unjust.  It 
will  be  satisfactory  to  no  section  ot  the  state.  It 
will  create  local  jealousies  and  animosities,  that 
will  operate  prejudicially  to  the  interests  of  the 
whole  state.  If  New-York  city  understands  this 
question  properly,  (and  hew^glad  to  find  him- 
self acting  with  many  of  her  intelligent  represen- 
tatives here)  it  must  be  opposed  to  this  new  at- 
tempt to  cripple  the  enlargement,  and  prevent 
its  speedy  completion  by  this  additional  burthen. 
He  trusted  the  attempt  would  not  prevail. 

Mr.  GRAHAM  should  vote  for  this  proposition, 
as  probably  the  best  he  could  get.  We  had  been 
told  that  we  should  not  be  taxed  in  case  the  arti- 
cle was  adopted  as  the  other  day.  The  expense 
of  the  government  had  been  $700,000,  and  what 
assurance  was  there  that  it  would  not  be  as  much 
hereafter?  He  considered  this  as  doing  away 
with  the  objectional  part  of  the  proposition  adopt- 
ed the  other  day.  By  the  provisions  of  that  pro- 
position as  adopted  the  other  day,  direct  taxation 
would  be  inevitable.  When  these  works  were 
commenced,  one  of  the  members  from  Ulster 
voted  for  the  Grand  Canal  bill,  as  then  called, 
undoubtedly  as  he  supposed,  because  it  was  right. 
Therefore,  Ulster  could  not  be  considered  as  hos- 
tile to  the  project  then.  The  language  then  used 
was — you  will  never  be  taxed — it  will  be  a  source 
of  revenue — it  would  pay  all  the  expenses  of  gov- 
ernment. It  went  on,  there  was  no  particular 
opposition,  and  he  now  called  upon  the  friends  of 
those  works  to  carry  out  their  promises.  He  was 
not  opposed  to  the  canals.  He  was  willing  to  be 
taxed,  if  necessaiy,  to  keep  the  Erie  canal  in 
operation.  He  had  doubts  whether  the  enlarge- 
ment was  necessary.  He  was  at  any  rate  by  no 
means  willing  to  submit  his  constituents  to  a  tax, 
to  carry  on  these  local  works,  for  the  lateral  ca- 
nals were  nothing  more.  They  had  no  more 
claim  upon  the  bounty  of  the  State  than  the  Dela- 
ware and  Hudson  canal.  Therefore,  he  was  not 
willing  by  his  vote  to  fix  a  tax  on  his  constitu- 
ents to  carry  on  those  works.  Whenever  tiie  ca- 


nals should  by  its  own  surplusses  provide  means 
for  that  purpose,  he  had  no  objection  to  such  an 
application  of  them.  Direct  taxation  fell  as  hea- 
vily on  those  localities  that  were  injured  as  uporr 
those  who  were  benefited  by  it.  These  local 
works  were  always  more  or  less  partial  in  the 
diffusion  of  their  benefits.  Gentlemen  of  the 
west  had  changed  their  tone  since  these  works 
were  commenced.  It  should  be  remembered  al- 
so that  much  of  the  tolls  were  not  levied  on  the 
productions  of  this  State,  but  from  the  States  of 
the  great  west,  and  therefore  it  would  not  be  tax- 
ing the  western  portions  of  the  State  to  support 
government  from  that. 

Mr.  CHATFIELD  in  reply  to  Mr.  WORDEN, 
read  from  the  official  documents  to  show  that  the 
debt  due  from  the  canals  to  the  general  fund  was 
as  he  had  stated.  All  that  was  asked  from  the 
canals  was  that  they  should  pay  their  debts,  and 
then  there  would  be  no  need  of  any  direct  taxa- 
tion. 

Mr.  WQRDEN  insisted  that  the  whole  matter 
was  compromised  in  1841. 

Mr.  CHATFIELD  denied  this.  All  that  was 
asked  that  there  should  be  a  fair  balance  struck. 
All  that  they  had  done  was  to  make  provision  for 
a  sinking  fund  which  might  pay  it  some  time  or 
other,  leaving  the  people  to  be  taxed  in  the  mean- 
time. He  might  perhaps  be  induced  to  go  for 
the  pending  proposition. 

Mr.  PATTERSON  said,  that  in  order  to  make 
up  the  claims  against  the  canals,  the  gentleman 
had  trumped  up  the  railroad  debt.  Mr.  P.  went 
on  further  to  reply  to  some  personal  allusions  of 
Mr.  C.  on  a  former  occasion.  He  insisted  that 
ample  provision  had  been  made  to  pay  every  dol- 
lar due  from  the  canals  to  the  general  fund,  or  to 
liquidate  any  other  just  claims  upon  them. 

Mr.  CHATFIELD  replied  to  the  personal  al- 
lusion of  Mr.  PATTERSON. 

Mr.  SMITH  moved  to  amend  Mr.  TAYLOR'S 
amendment  by  extending  the  time  for  which  the 
tax  should  continue  from  five  to  eight  years. 

Mr.  PATTERSON  continued  the  personal  mat- » 
ter  with  Mr.  CHATFIELD. 

The  debate  was  further  continued  by  Messrs, 
CHATFIELD,  PATTERSON  ,SWACKHAMER, 
when 

Mr.  ST.  JOHN  asked  for  the  previous  ques- 
tion, and  there  was  a  second,  and  the  main  ques- 
tion ordered. 

The  question  was  then  taken  on  the  amendment 
of  Mr.  SMITH,  and  there  were  ayes  61,  nays  50-, 
as  follows: 

AYES— Messrs.  Allen,  Angel,  Archer,  Ayrault,  F.  F, 
Backvis-,  H.  Backus,  Bascom,  Bergen,  Brayton,  Bruce,  Bull, 
D.  D.  Campbell,  Candee,  Chamberiain,  Dana,  Dodd,  Dorlon, 
Gardn.  r,  Grbhard,  Harris,  Hawley,  Hoffman.  Hotchkiss, 
Hunt.  E.  Humington,  Jordan,  Kenible,  Kiiklaud,  Maim, 
McNitt,  Marvin,  Maxwell,  Morris,  Murphy,  Nicholas, 
O'Conor,  Parish,  Patterson,  Peuniman,  Perkins,  Porter, 
Khoade  ,  Richmond,  Salisbury.  Simmons,  Smith,  E.  Spen- 
cer, W.  H.  Spencer,  Stantori,  Stephens,  Stow,  Strong,  Tag- 
gart,  Talimadge,  Townsend,  Van  SchoonhoveB,  Warren, 
White,  Worden.A.  Wright,  Yawger-61. 

I\  UES— Messrs  Baker,  Bowdish,Brown,  Brundage,  Burr, 
Cambreleng.  R.  Campbell,  jr.,  Chatfield,  Clark.  Clyde, 
Cornell,  Cuddeback,  Danforth,  Dubois,  Flanders,  Graham, 
Gr<  ene,  Harrison,  Hart,  Hunter,  A.  Huntington,  Hutchin- 
son,  Jones,  Kernan,  Kihgsley,  Loomis,  McNeil,  Nellis,, 
Nicoli,  Powers,  Pi esident,  Hiker,  Kuggles,  St.  John,  San- 
ord  Sears,  Shaw,  Sheldon,  Shep.ird,  Stetson,  Swackha- 
mer,  Taft,  J.  J.  Taylor,  W.  Taylor,  Tuthill,  Vache,  Ward, 
Waterbury,  Willard,  Wwd,  \oungs-50. 


957 


So  the  amendment  was  adopted. 

The  question  was  then  on  ihe  amendment  of 
Mr.  TAYLOR,  as  amended,  and  there  were  ayes 
76,  nays  34,  as  follows: 

A  ^  ES— Messrs.  Allen.  Angel,  Archer,  Ayrault,  F.  F. 
Backus,  H.  Backus,  Baker,  Bascom,  Bergen,  Brayton, 
Bruce,  Biundape,  Bull,  Burr,  D.D.Campbell,  Candee, 
Chamberlain,  'Dana,  Dantbrth,  Dodd,  Dorlon,  Gard- 
ner, Gebhard,  Graham,  Hairis,.  Hawley,  Hoffman, 
Hotchkiss,  Hunt,  A.  Huntington,  E.  Iluntington,  Kemble, 
Kernan,  Kingsley,  Mann,  Mi-Nt-il,  McNitt,  Marvin,  Max- 
well, .Morris,  Murphy,  Nellis,  Nicholas,  O'Conor,  Parish, 
Patterson,  Penniman,  Perkins,  Porter,  Hhoades,  Richmond, 
Ruggles,  Salisbury,  Shaw,  Sheldon,  Simmons.  Smith,  E. 
Spencer.  W.  H.  Spencer,  Stanton.  Stephens, Stow,  Strong, 
Suackh;um-r.  Taft,  Taggart.  Tallmadpe,  W.  Taylor, 
Town-end,  Van  Schoonlmven,  Warren,  White,  Witbeck, 
Worden,  A.  Wright.  Yawger-76. 

NOES— Messrs.  Bowdish,  Brown,  Cambreleng,  R. 
Campbell,  jr.  Chatfield.  Claik,  Clyde,  Cornell.Cuddeback, 
Duliois,  Flanders,  Hart,  Hunter,  Hutchinson,  Jones,  Kirk- 
land,  Loomis,  Nicoll,  Powers,  President,  Hiker,  St. 
John,  Sanford,  Sears,  Shepard,  Stetson,  J.  J.  TayJor,  Tut- 
hill,  Vache,  Ward,  Waterbury,  Willard,  Wood,  Youngs 
-34.  *  / 

The  question  was  then  on  the  adoption  of  the 
section,  and  there  were  ayes  5S,^noes  50,  as  fol- 
lows : 

AYES— Messrs.  Allen,  Archer,  F.  F.  Backus,  H.  Backus, 
Bergen,  Brown,  Brundage.  Burr,  D.  D  Campbell,  Candee, 
Chu  nberlain,  Cuddeback,  Dana,  Danlbrth,  Dodd,  Dubois, 
Gebhard,  Graham,  Greene,  Harris,  Harrison,  Hoffman, 
Hotchkiss,  Hunt,  A.  Huntington,  Kemble,  Kernan,  Kings- 
ley,  Loomis,  Mann,  McNeil,  McNitt,  Maxwell,  Murphy, 
Nellis,  Patterson,  Perkins,  Porter,  Riker,  Ruggles,  Rus- 
sell, Shaw,  Sheldon,  Simmons,  Smith,  E.  Spencer,  Ste- 
phens, Swackhamer,  Taft,  W.  Taylor,  Tilden,  Townsend, 
Tuthill,  Van  Schoonhoven,  Warren,  Wood,  Yawger— 53. 
NAiS — Messrs.  Ayrault,  Baker,  Bascom,  Bowdish, 
Brayton,  Bruce,  Bull,  Cambreleng,  R.  Cambpell,  jr.',  Chat- 
field,  Clyde,  Flanders,  Gardner,  Hart,  Hawley,  Hunter,  E. 
Huntington,  Hutchinson,  Jones,  Jordan,  Kirkland,  Marvin, 
Morris,  Nicholas,  Nicoll,O'Conor.  Parish,  Penniman,  Pow- 
ers, Rhoades,  I'.ichmond,  St.  John,  Salisbury,  Santord, 
Sears,  She-  ard,  %V.  H.  Spencer,  Stetson,  Stow,  Strong, 
Taggart,  Tallmadge,  Vache,  Ward,  Waterbury,  White, 
"Witbeck,  W  orden,  A.  Wright,  Youngs— 50. 

The  seventh  section  was  then  read  as  follows  : 

^  7.  On  the  final  passage,  in  Cither  house  of  the  Legis- 
lature, of  every  act  which  imposes,  continues  or  levives  a 
tax,  or  makes,  continues,  or  revives  any  appropriation  of 
public  trust  or  money  or  property — 01  releases,  discharges 
or  commutes  any  debt  or  demand  of  the  state,  the  ques- 
tion shall  be  taken  by  ayes  and  noes,  which  shall  be  duly 
entered  on  the  journals,  and  three-fifths  of  all  the  members 
elected  to  either  house  shall,  in  all  such  cases,  be  necessa- 
ry to  constitute  a  quorum  therein. 

The  section  was  adopted  unanimously. 

The  article  having  been  gone  through  with. 

Mr.  HOFFMAN  said,  I  congratulate  the  con- 
vention in  having  after  an  arduous  labor,  concluded 
with  these  reports  of  the  finance  committee. — 
Taken  together,  they  will  preserve  your  faith, 
and  will  pay  your  debt.  They  may  not  be  entire- 
ly satisfactory  to  any  one  member  here,  but  they 
will  produce  the  results  to  which  I  have  alluded. 
They  will  do  more.  They  will  set  an  example, 
if  this  convention  shall  adhere  to  it,  which  vrill 
cause  every  State  in  this  Union,  as  soon  as  it  shall 
be  in  its  power  to  do  sp,  to  provide  for  the  spung- 
ing  out  ot  its  debt,  by  payment — removing  from 
representative  government  the  reproaches  which 
have  been  cast  upon  it  on  the  other  side  of  the 
water.  To  this  extent  the  Convention  hascorne  ; 
and  even  if  its  labors  should  be  repudiated  by  the 
State, nothing  can  wipeout  thejudgmentwhich  you 
have  pronounced  on  this  important  subject.  It 
will  live — it  will  go  down  with  time  itself,  until 
that  time  shall  mingle  w'ith  the  murmurs  of  eter- 


nity. I  predict  that  the  result  of  your  labor  has 
overcome  the  greatest  difficulty  and  the  greatest 
obstruction  ever  attempted  to  be  cast  in  the  way 
of  the  progress  of  our  free  institutions,  and  if  you 
will  go  on  and  maintain  the  individual  liability 
of  bankers,  of  corporators — compel  incorporations 
to  be  by  general  laws,  and  guard  the  municipal 
bodies' againslj  the  power  tcT contract  debts,  you 
will  have  achieved  that  which  will  bring  you 
what  you  have  not  had  for  a  quarter  of  a  century, 
a  legislature  in  these  halls.  I  move  you  sir,  that 
the  article  be  laid  aside  on  the  table  and  be  print- 
ed. 

Mr.  WORDEN.  After  what  has  fallen  from 
the  gentleman  from  Herkimer,  I  feel  strongly  in- 
clined to  make  one  remark.  I  agree  with  him 
that  the  labors  of  this  Convention,  in  retard  to 
the  disposition  manifested,  throughout,  to  pre- 
serve inviolate  the  faith  of  the  state,  to  pay  the 
state  debt,  and  place  the  question  beyond  a  con- 
tingency or  doubt,  has  resulted  most  auspiciously 
for  the  honor  of  the  state,  and  of  republican  in- 
stitutions. The  difference  between  us  has  not 
been  one  of  principle,  affecting  the  great  ques- 
tion of  the  entire  integrity  of  republican  govern- 
ment, but  it  has  been  one  which  had  no  great 
weight  attributed  to  it, — one  of  time.  I  concur 
with  the  gentleman  from  Herkimer  as  far  as  he 
has  gone,  and  I  think  it  will  be  a  proud  monu- 
ment to  the  integrity  of  the  state,  and  go  forth  to 
the  world  as  evincing  that  we  met  here,  and 
kept  steadily  in  view  the  great  and  prominent 
object  for  which  we  were  convened:  to  make 
some  provision  for  placing  our  credit  beyond  con- 
troversy and  doubt.  I  congratulate  the  people, 
and  the  convention  upon  securing  a  still  farther 
object — the  final  completion  of  those  great  works 
of  internal  improvement,  which  more  than  any 
thing  else,  has  enabled  us  to  assume  this  high  at- 
titude, and  present  to  the  world  occupying  the 
high  position  we  do  now,  and  which  more  than 
aught  else,  has  secured  to  this  state  for  all  time 
to  come,  the  appellation  of  the  Empire  State. 

Mr.  BAKER  desired  to  renew  his  motion  to 
recommit  the  report  with  instructions  to  strike 
out  that  part  of  the  fifth  section  which  provides 
for  the  submission  of  certain  laws  to  the  people, 
and  to  insert  the  matter  moved  by  him  yesterday. 

Mr.  HOFFMAN  insisted  on  his  motion  to  lay 
the  report  on  the  table,  and  it  was  agreed  to. 

The  article  as  amended  is  as  follows  : 

ARTICLE  VII. 

SECTION  1.  After  paying  the  expenses  of  collection,  su- 
perintendence and  ordinary  repairs,  there  shall  be  appro- 
priated and  set  apart  out  of  the  icvenues  of  the  btate 
canals,  in  each  year, commencing  on  the  lirst  day  oi  June, 
1846,  the  sum  ot  one  million  and  three  hundred  thousand 
dollars,  until  the  first  day  of  June  1855;  and  from  that  time 
the  sum  ol  one  million  and  seven  hundred  thousand  dollars 
in  each  fiscal  year  as  a  sinking  fund  to  pay  the  interest  and 
redeem  the  principal  of  that  part  of  the  State  debt  called 
the  canal  debt,  as  it  existed  at  the  time  first  aforesaid,  and 
including  three  hundred  thousand  dollars  then  to  be  bor- 
rowed, until  the  same  shall  he  wholly  paid;  and  the  prin- 
cipal and  income  ol  the  said  sinking  lund  shall  be  sacredly 
applied  to  that  purpose. 

fj  2.  AfttT  complying  with  the  provisions  of  the  first 
section  of  this  article,  there  shall  be  appropriated  and  set 
apart  out  of  the  surplus  revenues  of  the  state  canals,  in  each 
fiscal  year,  commencing  on  the  first  day  ot  June,  184t>,  tiie 
sum  of  three  hundred  and  fifty  thousand  dollars,  untii  the 
time  when  a  sufficient  sum  shall  have  been  appropriated 
and  set  apart,  under  tin;  said  first  section,  to  pay  the  interest 
and  extinguish  the  entire  principal  of  the  canal  debt;  and  af- 
ter that  period,  then  the  bum  of  one  million  and  five  hun- 


958 


dred  thousand  dollars  in  each  fiscal  year,  as  a  sinking  fund. ' 
to  pay  the  interest  and  redeem  the  principal  of  that  part  of 
the  State  deht  called  the  General  Fund  debt— including  the 
debt  for  loans  of  the  Siate  credit  to  rail  road  companies 
•which  have  failed  to  p-y  the  interest  thereon,  and  also  the 
contingent  debt  on  State  stocks  loaned  to  incorporated 
companies  which  have  hitherto  paid  the  interest  thereon, 
whenever  and  as  far  as  anypait  thereof  may  become  a 
charge  on  the  Treasury  er  General  Fund,  until  the  same 
shall  be  wholly  paid  ;  and  the  principal  and  income  of  the 
said  la--t  mentioned  sinking  fund  shall  be  sacredly  applied 
to  the  purpose  aforesaid  ;  and  if  the  payment  of  any  part 
of  the  said  monies  to  the  sinking  fund  shall  at  any  time 
be  defer;  ed.  by  reason  of  the  priority  recognized  in  the 
first  section  of  this  article,  ihe  sum  so  deferred,  with  quar- 
terly interest  thereon,  at  the  then  current  rate,  shall  be 
r'd  to  the  last  mentioned  sinking  fund,  as  soon  as  it  can 
done  consistently  with  the  just  rights  of  the  creditors 
holding  said  canal  oebt 

^  3  After  paying  the  said  expenses  of  superintendence 
and  repairs  of  the  canals,  and  the  sums  appropriated  by 
the  first  and  second  sections  of  this  Article,  there  shall  be, 
paid  out  of  the  surplus  revenues  of  the  canals,  to  the 
Treasury  of  the  State,  on  or  before  the  thirtieth  day  of 
September,  in  each  year,  for  the  use  and  benelit  01  the 
General  Fund,  such  sum,  not  exceeding  $200,000,  as  may 
be  required  to  defray  the  necessary  expenses  of  the  State  ; 
and  the  remainder  of  the  n  venues  of  the  said  canals  shall, 
in  each  fiscal  year,  be  applied,  in  such  manner  as  the 
Legislature  shall  direct,  to  the  completion  of  the  Erie 
canal  enlargement,  and  the  Genesee  Valley  and  Black 
River  canals,  uu  il  the  said  canals  shall  be  completed. 

If  at  any  time  after  the  peiiod  of  eight  years  from  the 
adoption  ol  this  Consutution,  tne  revenues  of  the  State,  un- 
appropriated by  this  article,  shall  not  be  sufficient  to  defray 
the  necessary  expenses  of  the  government,  without  con- 
tinuing or  laying  a  direct  tax,  the  Legislature  may,  at  its 
discretion,  su,  ply  the  deficiency,  in  whole  or  in  part,  from 
the  surplus  revenues  of  the  canals,  after  complying  with 
the  provisions  of  the  first  two  sections  of  this  article,  for 
payi.igthe  interest  and  extinguishing  the  principal  of  the 
Canal  and  General  Fund  debt;  but  the  sum  thus  appropri- 
ated fn  m  the  yur;,lus  revenues  of  the  canals  shall  not  ex- 
ceed annually  $350,000,  including  the  sum  of  $-200,000  pro- 
vided by  this  section  for  tuo  expenses  of  the  governm  -nt, 
until  the  General  Fund  debt  shall  be  extinguished,  or  until 
the  Ede  canal  enlarge- mem  and  Genesee  Valley  and  BLick 
River  canais  shall  be  completed;  and  afier  that  debt  shall 
be  p  id,  or  the  said  canals  shall  be  completed,  then  the  sum 
of  $672,600  or  so  much  thereof  as  shall  be  necessary,  may 


unds  under  its  management,  except  in  pursuance  of  an 
ippropriation  by  law;  nor  unless  such  payment  be  made 
vithin  two  years  next  after  the  passage  of  such  appropria- 
tion act:  and  every  such  law  making  a  new  appropriation, 
or  continuing  or  reviving  an  a;  propriat  on,  shall  distinctly 
specify  the  sum  appropriated,  and  the  object  to  which  it  is 
to  be  applied;  and  it  ihall  not  be  sufficient  for  such  law  to 
refer  to  any  other  law  to  fix  such  sum. 

).  The  credit  of  the  State  shall  not,  in  any  manner,  be 
given  or  loaned  to,  or  in  aid  ol  any  individual,  association 
or  corporation. 

§  10.  The  State  maj',  to  meet  casual  deficits  or  failures  in 
revenues,  or  for  expenses  not  provided  for,  contract  debts, 
but  such  debts,  direct  ai,d  comingent,  singly  or  in  the  ag- 
gregate, shall  not,  at  any  time,  exceed  one  million  of  dol- 
lars; and  the  moneys  arising  from  the  loans  creating  such 

were 
no 


debts,  shall  be  applied  to  the  purpose  for  which  th 
obtained,  and  to  repay  the  debt  so  contracted 


they  w< 
,  and  to 


be 
government. 


annually  appropriated  to  defray  the  expenses  of  the 


.  The  claims  of  the  State  against  any  incorporated 
company  to  pay  the  interest  arid  redeem  the  principal  of 
the  stock  o  the  State  loaned  or  advanced  to  such  company 
shall  t>e  fairly  eiifoiced,  and  nut  released  or  compromised; 
arid  the,  moneys  arising  from  such  claims  shall  be  set  apart 
and  applied  as  part  o!  the  sinking  funJ  provided  in  the  se- 
cond se.'.ti  not  this  article.  But  the  time  limited  lor  the 
fulfilment  of  any  condition  of  any  release  or  compromise 
heretofore  made  or  provided  for,  may  be  extended  byiaw. 
§5.  If  the  Sinking  funds,  or  either  of  them  provi  led  in 
this  article,  shall  prove  insufficient  to  enable  the  State,  on 
the  citdit  of  such  lund,  to  procure  the  means  to  satisfy  the 
claims  oi  the  creditors  o.  the  State  as  they  become  pa>  able, 
the  legisiacure  shall,  by  equitable  taxes,  so  inci  ease  the  re- 
venues ol  the  said  funds  as  to  make  them,  respective')'. 
sufficient  perfectly  to  preserve  the  public  faith.  Every 
contribution  o"  advance  to  the  canals  or  thnir  debt,  from 


other  purpose  whatever. 

5;  11.  In  addition  to  the  above  limited  power  to  contract 
debt,  the  State  may  contract  debts  to  repel  invasion,  sup- 
press insurrection,  or  defend  the  State  in  war;  but  the  mo- 
ney arising  from  the  contracting  of  such  debts  shall  be  ap- 
plied to  the  purpose  for  which  it  was  raised,  or  to  repay 
such  debts,  and  to  no  other  purpose  whatever. 

i$  12.  Except  the  debts  specified  in  the  tenth  and 
eleventh  sections  of  this  article,  no  debt  shall  be  hereaf- 
ter contracted  by  or  on  behalf  01  this  Stote,  unless  such 
debt  shall  be  authorized  by  a  law  for  some  single  work  or 
object  to  be  distinctly  specified  therein,  and  such  law  shall 
impose  and  provide  for  the  collection  of  a  direct  annual 
tax.to  pay,  and  sufficient  to  pay  the  interest  on  such  debt 
as  it  falls  due,  and  also  to  pay  and  discharge  the  principal 
of  such  debt  within,  eighteen  years  from  the  time  of  the 
contracting  thereof. 

No  such  law  shall  take  effect  until  it  shall,  at  a  general 
election,  have  been  submitted  to  the  people,  and  have  re- 
ceived a  majority  of  ail  the  votes  cast  for  and  against  it,  at 
such  election. 

On  the  final  passage  ol  such  bill  in  either  house  ol  the 
Legislature,  the  question  shall  be  taken  by  ayes  and  noes, 
to  be  duly  entered  on  the  journals  thereof,  and  shall  be: 
''Shall  this  bill  pass*,  and  ouyht  the  same  to  receive  the 
sanction  of  the  people." 

The  Legislature  may  at  any  time,  after  the  approval  of 
such  law  "by  the  people,  il  no  debt  shall  nave  been 
contracted,  in  pursuance  thereof,  repeal  the  same  ; — 
and  may  at  any  time,  by  law,  forbid  the  contracting 
of  any  further  debt  or  liability  under  such  law;  but 
the  tax  imposed  by  such  act,  in  proportion  to  the  debt,  and 
liability  which  may  have  been  contracted  in  pursuance  ol 
such  law,  shall  remain  in  force  and  be  irrepealable,  and  be 
annually  collected,  until  the  proceeds  thereof  shall  have 
made  the  provision  herein  before  specified,  to  pay  and  dis- 
charge the  interest  and  principal  of  such  debt  and  liability. 
The  money  arising  from  anv  loan  or  stock  creating  such 
debtor  liability,  shall  be  applied  to  the  work  or  object 
specified  in  the  act  authorising  the  same,  or  for  the  re- 
payment, and  for  no  other  purpose  whatever. 

No  such  law  shall  be  submitted  to  be  voted  on,  within 
three  months  after  its  passnge,  or  at  any  general  election, 
when  any  other  law,  or  any  bill,  or  any  amendment  to  the 
Constitution,  shall  be  submitted  to  be  voted  for  and  against. 
§  13.  Every  law  which  imposes,  continues,  or  revives  a 
tax,  shali  distinctly  state  the  tax  and  the  object  to  which 
it  is  to  be  applied,  and  it  shall  not  be  sufficient  to  refer  to 
any  other  law  to  fix  such  tax  or  ot  ject. 

&  14.  On  the  final  passage,  in  either  bouse  of  the  legisla- 
ture, of  every  act  which  imposes,  con'inues,  or  revives  a 


_____  ,  __  .    -  ., 
any  source,  other  than  theii   din  ct  revenues,  shall,  with  I  tax,  or  creates  a  debt  or  chaige,  or  makes,  continues  or  re- 


quarterly  interest,  at  the  rates  then  current,  be  repaid  into 
tne  Treasury ,  ;or  ihe  use  ol  the  State,  out  of  the  canal  re- 
venues, as  soon  as  it  can  be  done  consistently  with  the  just 
right*  ol  the,  creditors  holding  the  said  canal  debt. 

^  6.  The  Legislature  shall  not  sell,  lease,  or  otherwise 
dispose  of  any  of  the  canals  of  the  State;  but  they  shall 
remain  th«  property  of  the  state  and  under  its  rcanage- 
ment,  forever. 

§7  The  Legislature  shall  never  sell  or  dispose  oi  the 
sail  springs,  belonging  to  this  State.  The  lands  contiguous 
thereto  and  which  may  be,  .  ecessary  and  convenient  for 
the.  use  ol  the  salt  springs,  may  be  ««ld  by  authority  of 
law  and  under  direction  ol  the  commissioners  of  the  l.md 
office,  for  the  t  urpo.-e  of  investing  the  moneys  arising 
therefrom  IB  other  lands  alike  convenient;  but  by  such 
eale  and  purchase  the  aggregate  quantity  of  these  lands  shall 
not  be  diminished. 

§8.  No  moneys  shall  ever  be  paid  out  of  the  Trea- 
sury of  this  State,  or  any  of  its  funds,  or  any  of  the 


vivesany  appropriation  of  public  or  trust  money,  or  prop, 
tity,  or  i  eleases,  discharges  or  commutes  any  debt  or  de. 
mand  of  the  State,  the  question  shall  be  taken  by  ayes  and 
noes,  which  shall  be  duly  entered  on  the  journals,  and 
three  fifths  of  all  the  members  elected  to  either  house,  shall 
in  all  such  casei,  be  necessary  to  constitute  a  quorum 
therein. 

Mr.  LOOMIS  -moved  to  go  into  committee  of 
the  whole  on  the  report  of  the  committee  on  cor- 
porations. 

Mr.  TALLMADGE  moved  that  the  Conven- 
tion take  up  the  unfinished  business,  (on  the  rights 
and  privileges  of  the  citizens  of  the  State.) 

Mr.  F.  F.  BACKUS  demanded  the  ayes  and 
noes  on  Mr.  LOOMIS'  motion.  It  was  agreed  to, 
ayes  57,  noes  37. 


959 


The  same  taken  up  in  Convention,  and  having 
been  read  through.  Mr.  LOOMIS  moved  to  ad- 
jour-  :  to. 

journed  to  half-past  8  o'clock  to-morrow 
morn 


THURSDAY,  (91th  day)  Sept  2-1. 
Prayer  by  the  Hev.  Mr.  WILKINS 
The  PRESIDENT  presented  a  report  from  the 
Ml' the  amount  of  moneys  in 
th.it  court.     .Referred. 

-irKNSATION  OF  LKGISLATIVE  CLERKS. 
Mr.  MANN  said  he  had  a  proposition   to  offer, 
and  hoped  and  trusted  that  the  convention  would 
not  object  to  its  adoption.     At  the  first  session  of 
the  legislature  after  the  adoption  of  the   present 
constitution,  a  law  was  passed  regulating  the  sala- 
ries of  the  clerks,  and  other  officers  of  the  Senate 
and  Assembly,  which  may  be   found   in   chapter 
.  section  4,  of  the  sesssion  laws  of  1821,  viz  : 
(1  be  it  further  enacted,  that  from   and   after 
the  first  day  of  May  next,  there  shall  be   allowed 
to  the  clerk  of  the  Senate  an  annual  salary  of  one 
thousand  two  hundred  dollars,  and   to   the   clerk 
of  the  Assembly  an  annual  salary  of  one  thousand 
eight  hundred  dollars,  in  lieu  of  all  compensation 
and  perquisites  heretofore  received  by  them  res- 
pectively— and  for  which  they  shall  provide  their 
own  assistants  and  clerks,    arid  perform  all  duties 
now  required  of  them  by  law,   and  that   it  shall 
not  be  necessary  to  copy  the  journals  of  the   Sen- 
ate and  Assembly  for  the  Governor,  nor  to  furnish 
the  State  printer,  the  copies  of  messages,  bills, 
and  other  communications,  copies  of  which  shall 
be  furnished  in  the  journals.     The  said  sums   of 
money  to  t.-e  pa.d  to  the  said  clerks,  by  the  trea 
surer  on  the  warrant  of  the   comptroller,   on  the 
first  day  of  May  in  each  and  every   year."     Now 
sir,  since  the  passage  of  this  act  in  1821,  what  has 
been  the  course  pursued  by  the  legislature  in  this 
matter?     Why  sir,  they  have  evaded    or    avoid- 
ed the  law  of  1S21,  by    an    indirection.     Gen- 
tlemen ot  the    Conveiiiion    will  observe   that,   by 
examining  the  supply  bills  passed  at  each»session 
of  the   Legislature,  inc. spirit  of  the  law  of  1^21, 
has  been  eluded  and  avoided,- and  that  the    clerks 
have  been  allowed  to  draw  their  full  salaries,  and 
their  assistants  have  been  paid  by  an  indirect   ap- 
piopiiation    in  the  supply  bills.     Mr.  M-  said  he 
would  nut  take  up  time  now,  i.>  refer  to   the    sup 
ply  bills  from  IvJl  K.lSlO,  but  would  only  read  a 
short  section  or  two  from   the   supplv  hill,  passtc 
ar  the  last  s.ssion  (IS-46,)  chapter' 337,  section  Is! 
"The  Treasurer  snail  pay,  on  the  warrant  ol  tht 
Comptroller,  ou:  it  any  moneys  in    the   treasury 
not    otherwise   appropriated,  the  following  sum* 
of  money,  viz:  To  <-ach  of  the  deputy  clerks    o 
Assembly,    not    exceeding  thiee  in    number,    the 
sum  of  four  hundred  and  tifiv  d  -liars,  in  full  corn 
pen'titi'.m  tot  their  services,  und  ot  all  charg.  s  lo 
extra  en^rossiug."     Again,    in   1844,   a    law    wa> 
ed,  fixing  tne  pay  of   Seiue,-.nt-at-Arni-  at  .^i, 
per  day,  dour-k  ;,5d  per  day,  ami   mes 

sengers  at  50  c,  ,   ,  which  is,  perhaps,  toi 

small  a  compensation*     He  thought    n    \v;,s;  !>u 
till-  u  by  indirection 

in  the  supply  bills  passed  since.  Again,  in  the 
supply  bill  of  1840,  a  section  provides— k4  Then 
shall  be  paid  to  the  Rev.  I.  N.  YVyckofl,  for  the 


of  the  clergyman  <>iii<-iaunur   as    chaplains 
o  the  Legislature,  the  sum  of  six  dollars  for  each 
lay  of  the  present  session,  to  be  certified  in    the 
aine    manner.     Tin:  section  [  propose  to  oiler,    is 
;s  follows:  "  No  i>lii::.'r  (ex<  i-pt  the    Sp..-:-!ii-r   of 
he   Assembly,)  of  either  hi -.inch  ol  the    Legisla- 
ure,    clerks,  seigeanfs-at-a:  ms,  chaplains,    (ioor- 
ceepers,  librarians,  or  any  oih<  r   oilicer,  now,   or 
hai  may  hereiliet  be  author;z<d  by  law;  shall  be 
)aid  or  allowed    directly    or    indirectly    a   greater 
Conine;. s.ition  or  per  diem  allowance  and   mileage 
iian  is  allowed  to  members  of  I  he  Le^islatur.:. — 
Such  compensation  shall  be  regulated  by  law,  and 
shall  not  be  increased  or  diminished  during   their 
erm  of  office."     [A  reference  was  here  moved  by 
Vlr.  JOTTES,  to  a  special  committee.]     iVlr.  M.  did 
not  see  the  necessity  (if  a  reference      The  section 
was  a  very  short  one.  and  every  gentleman    could 
readily  comprehend  every  word  of  it,  upon  hear- 
ng  it  read,  and  he  prefetred  a  vote  upon  it  at  once, 
rle  had    examined  ihe  su  ;ply  bills  from    year   to 
year,  .since  1821,  and  found  (he  law  of  1820  over- 
ridden by  these  indirect  supply  bills,  and  he  found 
hem  a  convenient  plaster,  to  cover  up  all  of  the 
stealings  and  corruption  by  indirect  appropriations, 
it    was   a   bill  of  iniquity   and   abominations,    by 
which    the  treasury  was  annually    robbed   of  its 
thousands,  and  it  was  lime   this    improvident   le- 
gislation was   put  an  end    to.     The  Cleik  of  the 
Assembly  had  annually  received  in  addition  to  his 
$1800,    a   further   sum  or   sums,   for  making  the 
idex  to  the  laws  passed  at   eacn    session    of  the 
Legislature.     The  Comptroller  had  informed  him 
that  he  had  annually  paid  an  ex:ra    compensation 
for  this  service,  after  the  Legislature  had  adjourn- 
ed, to  these  clerks.     Tne  adoption  ot  this  section 
would  save  to  the  treasury   for    the    next    twenty 
years,   the  su-n  of  flSOsOOp  in  the  office  of  Clerk 
of  Assembly  alone.     And  he  v\ould  then  be    well 
paid  for  his  services,  as  much  so  as  the  members 
of  the  Legislatures,  and  they  could  have  no  rea- 
son to  complain  of  this,  as  their  labors  would   not 
be  any  more  aiduous  ihan  that  of  the  im -mbers  — 
He  could  see  no  reason  why  the  clerk  of  the  Assem- 
bly should  receive  from  $1800  to  $2000  for  his  three 
months'sei  vices,  while  members  of  the  Legislature 
wciv  to  receive  but  $300;  and  the  c)eik  of  the  Sen- 
ate  SI 20(.i,  and  other  oliicers  of  the  Legislature,  an 
undue  and  exhorbit,  nt  pay  for  light  services  by  in- 
direction.    He  was  opposed  to  it,  and   desired    to 
protect  the  Treasury  (in  this  respi  ct)  <-gainst  such 
unwarrantable  depredations.     Mr.-iVl.  had  no  ob- 
jections   to  a  reference  to  the  committee   on    the 
revision  of  the  articles  passed    upon,     tie,   (Mr. 
M  )  designed  to  adopt  this  shoit   section    as   No. 
10  in  the   first  ait  c!e  of  this  Constitution  — <;  On 
the  appointment,  el  'Ct  on,   tenure   of  office,   and 
compensation    of  the    LcjrMature" — or  add    it   to 
the  9th    section.     It  so  releind,he  desiitd    that 
it  should  be,  with  instructions,  to  report  this  sec- 
tion, or  anoiher  that  would    obviate  these  legisla- 
tive abuses.    And  he  would  rn.ike  that  motion;  en 
tertaming  these  views,  he  hoped    to  see   the   sec- 
tion meet   with  the  lavor  of  the  Convention,   and 
be  adopted. 

Mr.  CHATFIELD  desired  to  see  a  remedy  for 
the  evils  complained  of,  but  he  hoped  the  refer- 
ence would  be  without  instructions. 

After  a  brief  conversation,  it   was   referred   to 


960 


the  committee  on  the  arrangement  or  the  severa 
articles  of  the  constitution. 

CHENANGO  CANAL. 

Mr.  J.  J.  TAYLOR  moved  a  reconsideration 
of  the  vote  adopting  the  7th  section  of  Mr.  HOFF 
MAN'S  first  report,  for  the  purpose  of  amending 
it  by  adding  a  provision  allowing  the  state  to  dis 
pose  of  the  Chenango  canal  or  a  part  of  it,  or  o 
the  tolls  thereof,  for  the  purpose  of  procuring  01 
inducing  its  extension  to  the  Pennsylvania  line 
Mr.  T.  remarked  that  when  the  section  was  un- 
der consideration,  he  had  moved  an  amendment 
similar  to  the  one  which  he  now  wished  an  op- 
portunity to  present,  but  that  under  the  rule  un- 
der which  the  Convention  were  then  acting,  he 


was  deprived  of  an  opportunity  to  explain  the 
amendment  and  give  his  reasons  for  desiring  its 
adoption.  He  would  now  briefly  do  so,  and  he 
was  sure  the  Convention  would  listen  to  him  pa- 
tiently, for  it  was  the  first  time  he  had  ventured 
to  occupy  any  of  its  time",  while  engaged  upon 
this  subject  of  the  canals  and  finances;  having 
contented  himself  throughout,  with  being  an  at- 
tentive listener,  and  expressing  his  views  only 
by  his  votes.  He  had  once  or  twice  endeavored 
to  obtain  the  floor,  but  had  not  succeeded. 

It  was  perhaps  not  known  to  every  member  of 


the    Convention,   that  the   Pennsylvania  North 
Branch  canal  was  completed  from  the  main  line 
of  the  works  of   internal   improvements  of  that 
state  up  the  North  Branch  of  the  Susquehannah, 
to  the  mouth  of  the  Lackawana,  only  ninety  miles, 
by  the  river,   below  the  line  of  the  state  of  New 
York,   and  that  upwards  of  two  millions  of  dol- 
lars had  been  expended   in  the  construction  of  a 
canal  over  that  ninety  miles,   mostly  on  that  part 
nearest  to   New  York.     At  the  distance  of  about 
ninety  miles   from  our  state  line,  or  at  about  the 
termination  of  the  present  finished  Pennsylvania 
cajial,  commences  one  of  the  great  anthracite  re- 
gions of  that  state,  the   richest  in  this  article  in 
the  Union,  perhaps  in  the  world.     Through  this 
region,   abounding  also   in  the   best  of  iron  ore, 
now  extensively  worked,  the  canal  passes.     Gen- 
tlemen  who   had  been  there,   had  described  in 
glowing  language,  the  riches   and  the  beauties  of 
the  great  West.     It  had  been  his   (Mr.  T.'s)  for- 
tune,  to  visit  and   examine  to  some  extent  this 
coal  region  of  our   sister  state.     He   had  neither 
time  nor  language  to  describe   it  as  it  deserved  ; 
but  he   could   bear   witness   to  the   propriety  of 
the  expression  of  Proff.  Silliman,  made  some  years 
ago,  after  an  exploration  of  it,  that  "  the  sun  and 
these  coal  fields  would  burn  out  together ."  They 
had,   too,  this  advantage   over  the  coal  region  of 
the   upper  Lackawana,  from  which  we  now  de- 
rive our  principal  supplies,  that  the  mines  were 
in   the  hands  of  numerous   independent  owners. 
Of  course  competition  would  bring  down  the  price 
of  the  coal.     He  had  no  doubt  it  could  be  brought 
by  the  route  proposed   to  this  city,  so  as  to  com- 
pete with  that  which  now  comes  here.     Of  course 
it  would  supply  the  whole  interior  of  the  state, 
and  add  greatly  to  the  tonnage  on  our  canals.     It 
would   make  the   Chenango  canal,   instead  of  a 
burden  upon  our   finances,   a  good   investment. 
He  had  almost  forgotten  to  mention,  that  at  a  dis- 
tance from  fifteen  to   fifty  miles  from  the  line  of 
the  two  states,  are  also  extensive  fields  of  bitumi- 
nous coal,  in  the  immediate  vicinity  of  the  route 


of  the  canal,  and  of  the  very  best  quality.  Some 
of  it  is  considered  nearer  to  this  city,  by  the  route 
proposed,  than  any  which  is  now  brought  here, 
by  the  routes  by  which  it  comes.  Could  any  one 
doubt,  that  with  this  communication  open  an  ex- 
tensive business  would  be  done  upon  our  canals 
m  the  interchange  of  the  mineral  productions  of 
Pennsylvania,  for  the  salt,  plaster  and  other  com- 
modities of  our  own  state  ? 

But  it  might  be  said  there  was  no  prospect  of 
the  completion  of  Pennsylvania's  part  of  the  work 
On  that  point,  he  had  only  to  remark,   that  up- 
wards of  two  millions  had  been  spent  along  the 
line   of  the  last  ninety  miles   of  it,    and  that 
together  with  a  portion  of  the  finished  work,  had 
been  put  into  the  hands  of  a  company,  as  as  in- 
ducement to  complete  it.     They  were  struggling 
to  raise  the  means  to  do  so,  and   a  serious  obsta- 
cle in  their  way  was  the  want  of  a  manifestation 
on  the  part  of  this  State  of  a  disposition  to  meet 
them.     And  it  would  be  observed  that  he  did  not 
ask  to  have  any  thing  to  be  done  or  directed  to  be 
done  by  the  Constitution,  but  only  to  take  this  ca- 
nal out  of  the  operation  of  the  7th  section,  so  far  as 
o  leave  it  in  the  power  of  the  legislature  to  do 
omething,  as  circumstances   and  future   events 
hould  point  the  way.     He   did   not  purpose  to 
open  the  much  contested  third  section,  but  how- 
yer  much  he  was  opposed  to  it,  since  the  majo- 
ity  had  so  ordered  it,  he  regarded  that  as  settled. 
3ut  how  were  we  situated  ?     By  the  third  sec- 
ion,  we  have  appropriated  every  dollar   of  the 
revenues  of  the  State  beyond  the  sinking  funds, 
and  only  partly  enough  to  support  the  govern- 
ment, for  many  years  to  come.     By  the  7th  sec- 
tion, we  prevent  any  disposition  being  made  of 
the   canals,  finished  or   unfinished,   and   utterly 
take  away  all  means  for  constructing  any  work, 
however  desirable  future   events  may  make  it, 
except  the  favored  three,   provided  for  by  the 
third  section.     It  certainly  is  not  fair  to  ask  a  com- 
pany to  make  a  few  miles  of  canal,  with  nothing 
but  the  tolls  upon  that  few  miles  for  a  remunera- 
tion,   which  ^is  to  throw  upon   the  State  canals 
an  immense  amount  of  tonnage. 

Inasmuch,  therefore,  as  the  construction  of  this 
canal  might,  in  the  •  course  of  events,  become  a 
matter  of  much  interest,  not  only  to  his  constitu- 
uents,  but  also  to  the  State  at  large,  and  inasmuch 
as  it  seemed  to  him,  we  had  by  the  provisions 
which  we  had  adopted,  put  it  out  of  the  power  of 
the  State  to  construct  it,  for  the  next  twenty  years 
at  least,  if  our  work  should  be  ratified  by  the  peo- 
ple, he  had  thought  proper  to  ask  for  this  slight 
amendment,  which  would  not  interfere  at  all 
with  other  parts  of  the  report,  so  that  it  might  be 
left  in  the  power  of  the  legislature  to  hold  out 
some  encouragement  to  its  construction.  He 
would  take  this  opportunity  of  saying  that  his  con- 
stituents were  among  those  who  had  their  full 
share  of  the  taxes  which  have  gone  to  the  con- 
struction of  the  Erie  and  other  canals.  The  duty 
upon  salt  they  had  always  paid  to  the  full  extent 
of  any  other  section,  having  always  been  consum- 
ers of  the  product  of  our  salt  works,  and  all  other 
taxes  they  had  paid  in  common  with  the  rest  of 
the  State,  while  the  canals  have  been  to  them 
only  a.n  injury.  Are  they  now  to  be  called  upon 
to  pay  the  taxes  which  the  provisions  we  have 
adopted  will  inevitably  make  necessary,  and  at 


961 


the  same  time  be  cut  oft't'rom  all  hope  of  the  con-' 
struction  of  a  work  in  which  they  have  an  interest, 
and  which  may  become  more  meritorious  than 
those  for  which  we  have  so  liberally  provided? 
.  Mr-  STRONG  said  that  this  would  allow  the 
state  to  dispose  of  the  entire  tolls  of  that  c.,inal  to 
complete  it.  If  the  Convention  was  willing  to  do 
this,  he  had  no  objection. 

Mi.  TAYLOR  replied  that  the  tonnage  which 
would  be  thrown  upon  the  other  canals  by  this 
means  would  greatly  more  than  repay  the  state  for 
4he  loss  of  these  tolls. 

Mr.  BURR  could  not  really  see  into  this  strong 
desire  to  retain  these  lateral  canals  as  the  property 
ot  the  state.  For  one,  he  should  think  it  was  a 
good  bargain  if  we  could  give  away  the  Chemung 
canal. 

.    Mr.  BASCOM  agreed  with  Mr.  J  J.  TAYLOR  , 
but  he  did  not  like  this  attempt  to  »i  en  a  question 
that  last  night  we  all  considered  si-ttled.     He  had 
a  farther  objection    to  this  amend UM# lit      Thongl; 
admitting  that  at  some  future  day  there  was  a  pos 
sibility,  perhaps  piobability,  of  the  connection  o 
this  canal  with  a  Pennsylvania  work,  which  would 
be  advantageous    to  the  interests  of  the  state,  ye 
there  was   another   canaL   a   little    farther  west 
which  was  also  proposed    thus  to  be  connected. — 
He  would  not  like  to  undertake  to  decide  between 
these  canals.     Besides,  this  was    little  else  than  a 
proposal  to   sell  out  this   canal.     He    thought  we 
had  had  enough  ol  the  sale  of  public  works  in  ihat 
section  ot  the  state.     The  $3,OQU,OOp  lien  on  the 
Eiie  lail  road   had  been  given  up,  and  the  Ithaca 
and   Owego  road  sold   for  the    merest  (rifle.     He 
would  not  place  even  this  canal  in  the  same  cate- 
gory. 

Mr.  KIRKLAND  was  in  favor  of  the  motion  of 
Mr.  TAYLOR.  He  believed  the  Legislature  might 
be  trusted  with  this  matter.  That  canal  was  now 
not  only  unproductive,  but  a  heavy  annual  expense 
upon  the  state.  Adopt  this  provision,  and  it  un- 
der the  management  of  a  company  ih  is  cawal  could 
be  connected  with  one  of  the  Pennsylvania  works, 
the  result  would  be  of  great  advantage  to  the  in- 
terests and  finances  of  the  state. 

Mr.  HOFFMAN  said  that  he  must  ask  to  be 
excused  from  serving  on  the  engrossing  commit- 
tee, on  account  of  his  health. 

He  was  excused,  and  Mr.  LOOMISWOS  appoint- 
ed in  his  stead. 

Mr.  HOFFMAN  said  that  every  amendment  to 
this  section  (7)  ought  to  be  referred  to  some  stand- 
ing committee  to  consider  upon  it ;  arid  he  would 
make  that  motion,  to  refer  it  to  the  committee 
No.  3  on  canals  and  finance. 

Mr.  WHITE  renewed  the  motion  for  the  pre- 
vious question,  and  enquired  if  the  motion  of  the 
gentleman  from  Herkimer  was  in  order,  the  sub- 
ject matter  not  being  before  the  Convention  un- 
til it  has  agreed  to  the  reconsideration. 

Mr.  ANGEL  moved  to  lay  the  whole  matter  on 
the  table. 

Mr.  J.  J.  TAYLOR  demanded  the  ayes  and 
noes. 

They  were  ordered. 

It  was  laid  on  the  table  by  the  following  vote 
ayes  51,  noes  41. 

PUBLICATION  OF  THE  ARTICLES.       0 
Mr.  JORDAN  moved  that  2,000  copies  of  th 
articles  already  adopted  be  printed  ;  and  that  one 

95 


;opy  thereof  be  torwarded  to  each  of  the  Editors 
n  the  state.  Mr.  J.  briefly  explained  the  resolu- 
ion.  If  was  important  that  the  people  should  see 
ill  the  articles  they  had  passed,  as  soon  as  possible. 
Mr.  PATTERSON  objected  and  suggested  that 
ill  these  articles  had  been  laid  aside  without  final 
iction.  They  were  to  be  revised  either  by  the 
select  committee  or  in  the  Convention.  It  might 
necessary  to  make  some  changes,  and  he 
thought  we  had  better  act  finally  before  sending 
them  to  the  country.  In  the  judiciary  report 
there  was  an  omission  in  relation  to  the  election 
of  the  judges  of  the  supreme  court ;  and  it  might 
be  found  necessary  to  make  alterations  to  make 
one  part  harmonize  with  the  other.  Hence  it 
would  not  be  prudent  to  print  them  at  present. — 
Besides,  they  had  already  been  published  in  the 
newspapers  of  the  day. 

Mr.  JORDAN  said  that  at  this  late  day  he  was 
satisfied  that  they  would  not  attempt  to  make  any 
fundamental  change  in  any  of  these  articles.  He 
wished  to  put  the  people  in  possession  of  what 
wTe  have  been  about.  The  people  wanted  to  see 
as  early  as  possible,  substantially  what  sort  of  a 
Constitution  they  had  to  pass  upon. 

Mr.  PATTERSON  suggested  further  that  the 
ayes  and  noes  had  not  been  taken  on  any  one  of 
lese  articles  as  a  whole.  Some  of  them  might 
e  voted  down.  He  hoped  not  however.  But 
e  wanted  this  question  settled  before  they  were 
ent  out  to  the  world. 

Mr.  BROWN  wished  the  articles  to  be  perfec- 
ed  before  they  were  sent  to  the  people  ;  and  if 
ent  out  by  the  secretaries  by  the  6th  of  October, 
hey  will  l»e  regarded  by  the  public  as  complete, 
nd  they  will  have  four  weeks  to  deliberate  upon 
hem.  Many  of  these  articles  as  now  printed  are 
ull  of  errors,  made  by  the  printer. 

Mr.  JORDAN  contended  that  to  the  people  it 
was  of  less  consequence  what  the  arrangement, 
tyle,  and  language  of  these  articles  might  be 
ban  their  substance.  The  people  should  know 
low  these  articles  would  affect  their  interests ; 
ind  this  could  be  shown  them  by  the  adoption  of 
his  resolution,  although  the  phraseology  of  them 
might  hereafter  be  changed. 

Mr.  MANN  hoped  the  resolution  would  lie  on 
he  table  a  day  or  two. 

Mr.  JORDAN  stated  one  advantage  to  be  deri- 
ved from  the  course  proposed  by  reciting  the  fact 
hat  a  gentleman  to  whom  he  some  time  since  sent 
icopy  ot  the  article  on  the  judiciary,  had  returned 
:o  him  valuable  suggestions. 

Mr.  CHATFIELD  opposed  the  resolution.— 
The  newspapers  had  already  done  all  rhe  work 
that  this  resolution  proposed  to  have  done  ;  and 
to  pass  it,  would  put  the  people  to  an  unnecessa- 
ry and  additional  expense. 

Mr.  MURPHY  suggested  that  the  editors  of 
newspapers  should  be  paid  for  publishing  these 
several  articles  ;  paid  out  of  the  treasury. 

Mr.  JORDAN  said  editors  had  manifested  a  dis- 
position to  publish  these  articles  for  the  informa- 
tion of  their  readers,  and  such  a  provision  would 
be  unnecessary. 

The  motion  of  Mr.  JORDAN  was  carried.  Ayes 
41,  Noes,  33,— 74. 

CORPORATIONS    OTHER   THAN    J3ANKING   AND 
MUNICIPAL. 

The  Convention  then  took  up  the  report  of  the 


962 


committee  on   corporations  other  than  municipal 
and  banking. 

The  1st  section  was  read  as  follows  : — 

§  1.  Special  laws  creating  incorporations  or  associations, 
or  granting  to  them  exclusive  privileges,  shall  not  be  pass- 
ed. But  the  Legislature  may  pass  general  laws  by  which 
any  persons  may  become  incorporated  on  complying  with 
the  provi-ions  to  be  contained  in  such  laws.  And  all  cor- 
porations shall  by  subject  to  all  such  general  laws  as  the 
Legislature  may,  from  time  to  time  enact,  not  inconsistent 
with  the  provision  of  this  Constitution. 

Mr.  LOOMIS  opened  the  discussion  with  some 
historical  allusions,  showing  the  necessity  of  cor- 
porations, and  their  existence  for  a  long  period  in 
this  and  other  countries.  The  question  was,  if 
they  were  necessary,  how  they  should  be  regula- 
ted so  as  to  produce  all  necessary  good  and  pre- 
vent unjust  inequalities?  He  briefly  alluded  to 
the  various  applications  made  to  the  legislature 
to  obtain  charters,  and  said  all  this  might  be  ac- 
complished by  a  general  act.  He  ennumerated  a 
large  class  of  companies,  whose  object  was  not  to 
produce  profit  to  the  company,  and  which  might 
be  formed  in  that  way.  Mr.  L.  briefly  glanced 
over  the  several  provisions  of  the  article,  explain- 
ing as  he  went  along  the  objects  intended,  and 
the  evils  to  be  guarded  against ;  and  urging  that 
whilst  it  would  relieve  the  legislature  of  a  great 
deal  of  labor  and  loss  of  time,  it  would  give  to  the 
community  all  the  advantages  of  corporations, 
protect  them  against  their  excesses,  and  do  away 
with  all  exclusive  privileges  and  special  grants. 

Mr.  PERKINS  said  the  same  laws  would  not 
do  for  a  village  of  1,000,  that  would  do  for  a  vil- 
lage of  2,000,  or  town  of  10,000;  it  would  not 
do  to  confer  the  same  powers  on  each. 

Mr.  LOOMIS  said  that  was  not  contemplated. 

Mr.  PERKINS  said  that  you  could  not  charge 
the  same  amount  on  a  plank  road  that  you  could 
on  a  railroad. 

Mr.  MURPHY  rose  to  meet  a  remark  of  Mr. 
PERKINS  with  regard  to  the  general  laws  or  in- 
corporations, as  relates  to  towns  and  villages. — 
He  would  allow  no  powers  to  be  conferred  on  one 
set  of  men  that  were  not  conferred  on  another 
set  of  men. 

The  question  was  upon  the  last  section. 

Mr.  NICOLL  moved  to  amend  by  inserting  in 
the  fourth  line  after  the  word  "  incorporated"  the 
following  :  "  Or  be  entitled  to  any  of  the  privi- 
leges of  incorporations,"  and  in  the  fifth  line  af- 
ter the  word  "  corporations"  the  words  "  or  asso- 
ciations." He  offered  the  amendment  to  give  the 
legislature  power  to  pass  laws  for  the  organiza- 
tion of  societies  that  did  not  desire  all  the  powers 
of  an  incorporation,  which  could  not  be  done  by 
this  article  as  it  stands. 

Mr.  LOOMIS  said  that  the  sixth  section  amply 
provided  for  all  that  the  gentleman  desired. 

Mr.  NICOLL  said  the  word  "  incorporation" 
had  a  definite  meaning,  and  he  was  satisfied  his 
amendment  was  necessary  to  meet  the  difficulty 
and  set  the  matter  at.  rest,  so  as  to  give  societies 
and  associations  the  privileges  to  become  quasi 
incorporations. 

Mr.  LOOMIS  thought  no  difficulty  would  arise 
by  requiring  them  all  to  become  corporations. 

Mr  HUNT  huuccl  i be  gem K-ii. an  (his  colleague) 
would  repeat  his  remarks;  there  «as  so  much 
noise  around  him  that  he  could  not  hear. 

Mr.  NICOLL  said  that  his  amendment  render- 


ed the  thing  more   definite,  and  he    repeated    the 
above  remarks. 

Mr.  VAN  SCHOONHOVEN  thought  there  was 
much    force  in  the    position  taken   by  ihe  gentle- 


man  from  New  York. 

Mr.  TOWNSEND  having  made  a  few  observa- 
tions, 

Mr  LOOMIS  withdrew  his  opposition  to  the 
amendments. 

Mr.  MURPHY  thought  the  article  v*ou!d  in- 
clude municipal  corporations.  Was  such  fhe  in- 
tention of  the  committee  ? 

Mr.  LOOMIS  said  that  was  not  the  intention  r.f 
the  committee,  and  he  therefore  suggested  an  ad- 
dition of  the  words  "other  than  municipal  corpo- 
rations,'' if  the  gentleman  thought  proper  to  move 
that  amendment. 

Mr  MURPHY  said  he  should  not  as  he  desired 
to  include  them. 

Mr.  SIMMONS  insisted  that  further  amend- 
ment was  necessary.  The  word  "  private"  might 
with  propriety  be  introduced  for  public  corpora- 
tions of  cities,  villages, -&c. 

Mr.  SHEPARD  doubted  the  propriety  of  mak- 
ing the  amendment  suggested  by  the  gentleman 
from  Essex.  It  would  deprive  cities  and  villages 
which  were  quasi  corporations,  of  privileges 
which  were  necessary  and  now  enjoyed,  and 
would  destroy  remedies  for  injuries  arising  out  of" 
a  disregard  of  their  responsibilities. 

Mr.  SIMMONS   did  not  press  his  amendment 

Mr.  VAN  SCHOONHOVEN  asked  if  under 
this  article  the  legislature  could  not  pass  a  gene- 
ral law  for  the  construction  of  bridges  and  high- 
ways? If  so  he  was  opposed  to  it,  inasmuch  as 
it  would  give  powerto  obstruct  rivers  and  streams 
in  every  direction.  He  moved  the  following  a- 
mendment  to  obviate  this  objection,  to  come  in 
after  the  word  "  corporations"  in  the  5th  line  : — 

*'  Except  as  municipal  corporations  and  except  corpora- 
tions or  a-sociations  for  the  construction  of  bridges,  aque- 
ducts or  viaducts  over  the  navigable  streams  or  public 
highways  of  the  state." 

Mr.  TOWNSEND  thought  ample  provision 
was  made  for  this  in  a  subsequent  section. 

The  debate  was  further  continued  by  Messrs. 
MARVIN,  STOW,  VAN  SCHOONHOVEN, 
SIMMONS,  and  LOOMIS. 

Mr.  MURPHY  said  that  he  hoped  the  gentle- 
man from  Herkimer  (Mr.  LOOMIS)  who  was  the 
chairman  of  the  committee  which  had  reported 
this  section,  prohibiting  the  passage  of  special 
acts  of  incorporation  in  any  case,  and  requiring 
the  enactment  of  general  laws  under  which  cor- 
porations might  be  formed,  would  not,  as  he  had 
just  intimated,  amend  it  by  excepting  municipal 
corporations  from  its  operation.  It  was  true 
that  he  (Mr.  M.)  had  reported  as  a  minority  of 
the  committee  on  municipal  corporations  a  pro- 
vision of  that  character  in  regard  to  them,  yet, 
as  there  was  a  possibility  that  the  subject  would 
not  again  be  reached,  he  believed  it  would  be 
best  to  meet  the  whole  question  now.  In  fact, 
there  was  no  necessity  for  distinct  propositions 
of  the  same  character  for  different  corporations. 
If  there  were  to  be  a  provision  on  the  subject  at 
all  in  the  constitution,  it  should  extend  to  all  the 
corporations  to  which  it  might  be  deemed  advi- 
sable to  apply  the  principle  of  the  section  before 
us.  At  all  events,  he  wished  the  gentleman  to 


963 


hear  before  he  proposed  his  amendment.  He 
nled  this  as  the  contest  against  privileges 
conferred  by  law.  We  were  now  to  determine 
whether  \ve  would  preserve  that  same  equality 
of  rights  as  well  between  corporations  them- 
selves as  between  corporations  and  individuals 
as  is  said  to  exist  under  our  institutions  between 
individuals.  On  this  point  be  believed  the  gross- 
est violations  of  personal  rights  were  to  be  found 
in  our  municipal  corporations ;  and  that  how- 
ever important  the  subject  might  be  in  reference 
to  other  corporations,  it  was  still  more  so  in  re- 
gard to  them.  These  innovations  upon  the  rights 
of  individuals  resulted  almost  altogether  from 
the  form  of  legislation  by  special  charters.  He 
did  not  charge  a  wanton  disregard  of  those  rights 
upon  the  legislature ;  but  the  evil  resulted  ne- 
cessarily from  the  mode  of  creating  those  corpo- 
rations and  investing  them  with  their  power  by 
single  and  separate  acts.  He  would  therefore 
endeavor  to  show  the  mischief  of  this  practice  and 
the  propriety  of  an  uniform  organization  of  cities, 
and  also  an  uniform  organization  for  every  other 
species  of  municipalities.  The  gentleman  from 
Herkimer  had  given  a  sketch  of  the  history  of 
corporations  generally,  but  had  not  referred  to 
those  of  cities  and  towns.  He  (Mr.  M.)  would 
refer  to  some  points  in  the  history  of  the  latter 
for  the  purpose  of  showing  how  the  evil  of  which 
he  complained  had  grown  up  in  this  country  ; 
we  had  adopted  the  same  form  of  legislation  for 
the  government  of  cities  as  was  in  use  in  Europe, 
without  having  regard  to  the  difference  between 
the  fundamental  institutions  of  the  two  countries. 
Charters  of  cit.ies  were  originally  nothing  but 
grants  of  immunities  and  privileges  by  virtue  of 
baronial  prerogative.  They  were  intended  to 
exempt  the  inhabitants  from  personal  service  to 
the  lord,  and  were  usually  purchased  by  pay- 
ments of  money.  They  conferred  the  power  of 
local  government,  and  the  corporations  thus  cre- 
ated, exercised  the  same  absolute  power  within 
the  territory  that  the  lord  had  done  before. — 
Hence  grew  up  in  them  customs  against  common 
right,  forbidding  the  practice  of  any  trade,  ex- 
cept by  certain  individuals,  and  directly  contra- 
vening the  rights  of  many.  Thus  the  free  cities, 
as  they  were  called,  because  the  refuge  of  the 
worst  evils  of  the  feudal  system,  which  they  serv- 
ed to  break  up.  He  wished  to  tell  his  friend 
from  Albany,  (Mr.  HARRIS,)  that  these  charters 
are  essentially  feudal  instruments.  The  prerog- 
ative of  granting  them  which  was  at  first  only  ex- 
ercised by  the  lords,  came  to  be  exercised  by  the 
king.  This  was  however  only  a  change  of  the 
creating  power  ;  and  there  it  has  continued  ever 
since  in  Europe.  These  charters  have  always 
since  been  granted  by  the  king,  or  prescribed, 
which  presumes  such  a  grant.  The  powers  con- 
ferred have  been  the  same  as  were  exercised  by 
the  misnamed  free  cities.  In  the  same  form 
the  system  was  transferred  to  this  country. — 
The  charters  of  New-York  and  Albany  will 
furnish  ;t  Mifh'cient  illusirafion  of  this  re- 
mark. They  were  granted  by  the  Colonial  Gover- 
nor, in  the  name  o!  the  King,  That  of  New  York, 
grand"!  by  Montgomerie,  provides  that  no  person, 
not  beiii'4  a  f i »-e  citizen  of  the  city,  shall  at  any 
time  hereafter  use  any  trade  or  occupation  wiihm 
the  city  and  its  precincis,  or  shall  sell  or  expose  to 


sale  any  goods  or  comodities  by  retail,  in  any  house 
or  place,  except  in  the  times  of  public  fairs.     Ki- 
diculous  as  this  provision  is,  it  may  be  remarked, 
that  there  are  those  who   still  maintain  that  it  is 
not  only  in  full  force  yet,  but  also  that  it  is  beyond 
the   control  of  the   state.     For,  in  a  communica- 
tion made  by  Ihe  comptroller  lo  the  common  coun- 
cil, in  1841,  he  says  that  the  charter  of  New  York 
"  is  a  constitution  of  a  body  politic,  erecting  the 
city  of  New  York   inro  a  free  city  of  itself.     Her 
independent  sovereignty   in  her  local  matters,  is 
older  than  that  of  the   state   itsef.     That  charter 
still   stands  ns  much  a    protection  to  her  citizens 
from  state  encroachments,  as  it  was  before  the  re- 
volufon,  from  the  exactions  of  the  British  crown.'* 
This  charter  was  obtained  like  the  charters  of  the 
free  cities  of  the  feudal  times,  by  the  payment  of 
money — one    thousand    pounds  having    been  paid 
the  governor  for  it.     Such  pretensions  as  here  set 
up  for  that  instrument,  of  course  cannot  he  folei» 
a'ed      [Ml.  MORRIS  said  that  MO  such  claims  weie 
advanced  in  this  Convention.]    Mr.  M.  proceeded. 
He    knew   that;  he    merely  alluded  to   Ihe   New 
York  charter  to  show  how  we  had  borrov\ed  from 
Europe.    He  knew  that  the  members  of  this  house 
from  that  city,  and  the   great  body  of  its  enlight- 
ened citizens,  repudiated   the  doctrines  to  which 
he    alluded,    and  he  doubted    not  that    he  would 
have   their  support  on  this  question.     The  form 
of  city  organization  thus  introduced  in  the  colo- 
ny, had    been    kept    up    by  the   Legislature ;  and 
though  that  body  hag  not  been  guilty  of  granting 
privileges  so  absurd  as  the  colonial  government, 
yet  it  has  retained  the  form  of  special  legislation 
in    regard    to  such   organization.     Each  city  still 
has  its  separate  charter,  and  no  unifottnity   exists 
in  the  powers  conferred  upon  them,  such    as  pre- 
vails in  regard  to   the  towns   and  counties  of  the 
state.     It  is  to  this  practice  of  the  olden  time  that 
we  must    attribute  the    idea  of   special   charters 
which  has  come  to  oe  considered  so  necessary  for 
cities  and  villages,  and  not  to  any  actual  necessity 
for    them.     It    might  well   be  asked  why    a  city, 
more  than  a  town  or  a  county,  should  have  a  par 
ticular  organization  of  its  own  distinct  from  other 
cities.     The  gentleman   from  St.  Lawrence,  (Mr. 
PERKINS,)  said  this    morning  that  a  population  of 
10,000  individuals  mi«;ht  need  more  local  powers 
than  one  of  1UOO.     This  may  be  true,  but  it  is  not 
more  true  in  regard  to  the  ciiies  than  in  regard  to 
towns.     Towns,   whatever  their  population    may 
be,  are    under  the   same  general    law.     The  diffi- 
culty of  the  gentleman  from  St.  Lawrence  consists 
in  supposing  that    all    the  powers  conferred  by  a 
general  law,  must  be  exeicised,  when  in    fact  the 
town  or  the  city  may  exeicise    it  or  not  as  its   cir. 
cumstances  require.     When  not  usedit  isdormant. 
Thus  the   right   of  taking   wharfage,  if  conferred 
jpon  all  the  cities  of  the  state,  would  be  used  only 
i)y   such  as  had    a  watet  front.     An  interior   city 
would    have  no  occasion    to  use    it.      But    there 
would  be  no  objection    to  conferring  that   powtr 
upon  all  cities  generally.     A  general  }aw   rnight 
:>rovide     dillerent     organizations     for     different 
amounts    of  population,  in    ihe  same   manner  as 
he    law  in    regard    to     religious  incorporations 
now  i;i    force,  provides    for    the    organization  of 
lifTerent    religrou*     denominations     in    different 
ways,     The  great  object  to  be  obtained  by  a  gen- 
eral law  is  to  secure  the  wisdom  of  the   whole 


964 


state,  or  at  least  of  all  the  parts  of  the  state  inter- 
ested in  it,  for  the  formation  of  that  law  ;  and  to 
prevent  those  incongruities  which  special  legis- 
lation presents,  and  which  are  the  causes  of  many 
of  the  evils  under  which  our  cities  are  laboring 
in  regard  to  debt  and  assessments.  The  design 
of  state  government  is  not  only  to  protect  from 
powerful  neighbors,  but  to  concentrate  the  expe- 
rience and  wisdom  of  a  greater  number  of  persons 
for  the  common  benefit,  by  wise  laws.  Special 
legislation  defeats  this  design.  Localities  for 
which  this  legislation  is  made,  do  not  derive  the 
benefit  of  the  wisdom  of  the  whole  legislative 
body.  A  charter  as  now  granted  is  for  the  most 
part  a  piece  of  empiricism  by  the  wiseacres  of 
the  place  where  it  is  to  be  put  in  force.  After 
being  prepared  a!  home,  it  is  sent  to  the  legisla- 
ture to  be  passed.  When  it  reached  that  body,  no 
one  except  the  representatives  from  the  locality 
cares  what  it  contains.  It  is  thus  left  in  charge  of 
the  same  interest  as  that  which  prepared  it.  He 
would  appeal  to  every  member  of  the  Convention 
Who  had  been  a  member  of  the  legislature,  if  that 
was-  not  the  course  pursued  in  reference  to  all 
local  bills.  They  are  passed  without  examina- 
tion because  they  affect  only  a  particular  com- 
munity., In  this  way  opposite  and  dangerous 
"-tute  book  ;  and  the 
visions  of  any  uni- 
ted a-ction  on  the  part  of  the  legislature  for  a  long 
period  are  sometimes  lost.  It  would  only  be  ne- 
cessary for  him  to  show  how  this  mode  of  legisla- 
tion had  operated  in  regard  to  cities  to  present  to 
the  mind  of  any  candid  man  the  manifest  impro- 
priety of  it.  He  had  examined  for  this  purpose 
the  charters  of  the  five  largest  cities  of  the  state, 
and  the  powers  conferred  upon  their  corporations, 
He  would  select  one  s-ubject — that  of  opening 
streets;  and  by  a  comparison  of  the  different  pro- 
visions in  those  cities  in  regard  to  it,  furnish  an 
illustration  of  the  contradictions  in  principle 
which  existed  among  them — contradictions  so  di- 
rect that  if  some  provisions  were  right,  the  others 
must  be  wrong. 

[Mr,  M.  was*  here  interrupted  by  the  expira- 
tion of  the  time  allowed  by  the  rule  for  having 
the  floor 


principles  are  put  into  the  stat 
wholesome  and  beneficent  pro 


>or.] 
.   RI 


which  were  granted  to  them.  So  tar  as  regarded 
the  liberties  of  the  inhabitants,  they  were  not  so. 
The  corporate  body  exercised  the  same  tyranny 
over  the  trades  and  occupations  and  other  natural 
rights  of  the  people  as  did  the  baron  before  he  ex- 
empted them  from  his  control.  He  would  not  dis- 
pute as  to  their  being  the  cause  of  the  civilization  of 
Europe.  A  high  state  of  refinement  might  exist, 
as  it  has  often  existed,  arid  now  exists,  in  despot-- 
it* governments.  When  he  was  interrupted,  he 
was  proceeding  to  show  the  incongruities  and  in- 
consis'encies  of  the  charters  of  the  cities' of  New 
York,  Brooklyn,  Albany,  Rochester  and  Buffalo — 
the  five  laigest  cities  in  the  State.  It  waa  to  these 
variations  that  he  traced  the  cause  of  the  evils 
under  which  our  cities  were  suffering,  as  would 
appear  from  an  examination  of  one  single  subject, 
that  of  opening  of  streets ;  for  from  one  charter 
we  might  {earn  the  character  of  all.  It  is  welt 
known  that  streets  in  our  towns  are  opened  upon 
one  uniform  plan,  that  is,  the  same  proceedings 
are  had  in  one  town  as  are  had  for  that  purpose 
in  any  other.  All  pursue  the  same  course;  and 
an  alteration  of  the  general  law  affects  all  equally 
alike  In  cities  this  power  is  now  generally  con- 
tained in  the  acts  of  incorporation,  though  it  is 
not  in  the  charters  of  the  old  cities,  but  it  is  con- 
ferred upon  them  by  subsequent  legislaiion.  When 
however,  he  spoke  of  a  charter  of  a  city  he  meant 
that  law  or  body  of  laws  which  conferred  uponr 
it  not  only  its  corporate  character,  but  also  the 
powers  which  it  exercised  for  the  government  of 
its  inhabitants,  and  for  their  accommodation  and 
convenience.  In  conferring  the  power  of  open- 
ing streets,  reference  must  be  had  to  the  cases  in 
which  the  power  may  be  exercised,  to  the  tribu- 
nal which  is  to  appraise  the  property  necessary  to- 
be  taken,  to  the  mode  of  assessing  the  means  ne- 
cessary to  pay  the  appraisement,  and  to  enforcing 
the  collection  of  the  assessments,  as  well  aa  to- 
other particulars.  He  spoke  of  these  points  be- 
cause he  proposed  to  refer  to  each  of  them  in  de. 
tail  in  regard  to  each  of  the  cities  he  had  named, 
in  order  to  show  the  irreconcileable  character  of 
many  if  not  all  of  them. 

As  regards  the  cases  in  which  streets  may  be 
opened,  they  may,  in  the  city  of  New  York,  be 
made  at  the  discretion  of  two-thirds  of  the  com- 
mon council,  whenever  they  may  deem  it  neces- 
sary or  convenient ;  or,  on  petition  of  three- 
fourths  of  the  owners  of  the  land  fronting  on  the 


Mr.  RICHMOND  thought  it  was  time  that 
something  should  be  done  to  prevent  corporations 
over-riding  and  running  down  the  people.  He 
referred  to  a  message  of  Governor  Tompkins  and 
legislative  proceedings  on  this  subject,  and  said  I  street ;  in  Albany,  at  the  discretion  of  two-thirds- 


that  half  of  the  time  of  the  legislature   was  con- 
sumed with  that  class  of  legislation. 

Mr.  SHEPARD  opposed  the  amendment  of  Mr. 

Mr.  STOW  briefly  continued  the  debate  in  ex- 


planation 


was   interrupted    m    making  before. 

firs-t,  however,    notice  an  observati 


MURPHY  continued  he  remarks  which  he 
He  would 
>f  the  gen. 

tlemnn  from  Erie  (Mr.  STOW),  who  had  just  taken 
his  seat.  That  gentleman  said  he  would  at  a  pro- 
per time  show  that  the  cities  created  by  the  feu- 
dal lords  were  free  cities,  and  that  they  were  the 
cause  of  the  civilization  of  Europe.  He  (Mr.  M  ) 
did  not  intend  to  dispute  about  terms.  Wnat  he 


had  said,  and  would  now  repeat,  was 
cities  were  free  only  in  the  sense  that 
made  independent  of  their  lords 


loose 


they 
l>v  the   char!  era 


of  the  common  ceuncil ;  in  Brooklyn,  only  upon 
petition,  and  then  at  the  discretion  of  the  com- 
mon council,  but  not  if  a  majority  of  those  to  be 
assessed,  remonstrate  against  the  improvement ; 
in  Buffalo,  at  the  discretion  of  the  common 
council,  but  in  no  case,  where  any  building  ex- 
ceeding $1500  in  value  shall  be  taken  unless  with 
the  consent  of  the  owner;  in  Rochester,  in  no 
case,  where  the  value  of  the  building  shall  ex- 
ceed $1500.  Now  it  is  very  evident  that  these 
plans  differ  in  principle  so  radically  that  they 
cannot  all  be  right.  If  it  be  just  to  prevent  the 
opening  of  a  street  in  Rochester  without  the  con- 
sent of  the  owner  of  every  building  exceeding 
one  thousand  dollars  in  value,  then  it  is  unjust  to 
allow  it  to  be  done  without  such  consent  in  Alba- 
ny ;  or  if  it  be  right  to  require  the  vote  of  two- 
thirds  of  the  common  council  of  Albany  to  au 


965 


thorize  such  an  improvement,  it  is  not  riuht  to 
permit  a  similar  improvement  in  Buffalo  by  a 
majority  vote.  The  propriety  or  improprie- 
ty of  these  provisions  cannot  depend  upon  locali- 
ties. The  law  is  intended  to  meet  the  public 
wants  and  at  the  same  time  to  regard  private 
rights  ;  and  these  are  the  same  in  all  communi- 
ties. So  in  regard  to  the  tribunal  to  which  the 
duties  of  appraising  the  damage  and  assessing 
the  benefit  are  entrusted.  This  is,  in  New  York, 
three  commissioners  appointed  by  the  Supreme 
Court:  in  Albany,  a  jury  of  three  freeholders 
chosen  from  a  panel  of  twelve  summoned  by  the 
mayor  ;  in  Buffalo,  five  freeholders  chosen  by  the 
common  council ;  in  Brooklyn,  three  commission- 
ers appointed  by  the  first  judge  of  the  county  or 
by  the  county  court.  The  diversity  in  principle 
here  is  extreme.  In  some  cities  it  is  left  to  three 
commissioners  selected  by  the  court  in  the  nomi- 
nation of  the  local  authority,  and  in  others  to  a 
jury  of  three  freeholders  to  determine  the  dam- 
ages sustained.  There  is  as  much  difference  be- 
tween them,  as  between  having  a  suit  tried  be- 
fore a  jury 'or  before  three  men  selected  for  the 
purpose.  Thus,  the  whole  question  of  trial  by 
jury  in  civil  cases  is  involved.  No  one  will  deny 
that  this  is  a  material  distinction  in  principle. — 
He  would  hereafter  have  occasion  to  show  that  it 
is  a  difference  fraught  with  great  evil  ;  but  as  he 
was  considering  this  question  merely  as  one  of 
form,  it  was  unnecessary  now  to  do  more  than 
allude  to  the  difference  of  principle. 

The  means  ot  paying  lor  these  improvements 
are  levied,  in  the  city  ot  New  York,  by  assessing 
the  lots  fronting  on  the  street,  and  lots  lying  with- 
in  halt  the  distance  ol  the  next  street,  on  each 
side  of  that  proposed  lo  be  opened,  and  by  impos- 
ing one- third  cf  the  value  of  the  buildings  taken, 
as  a  charge  upon  the  city  treasury,  at  the  discre- 
tion of  the  commissioners.  In  Albany  and  Buffa- 
lo, by  assessments  upon  any  property  which  the 
jury  may  deem  benefilttd.  In  Brooklyn,  by  as- 
sessments only  upon  property  within  an  assess- 
ment district,  previously  determined  by  the  com- 
mon council.  Thus,  in  Brooklyn  the  taw  under- 
takes to  designate  specific  properly  in  all  cases,  as 
benefited;  while  in  New  York,  it  declares  that 
in  some  cases  a  portion  ot  the  expense  may  be  put 
upon  the  general  treasury.  In  other  words,  local 
assessments  only  are  considered  proper  for  one 
part  of  the  state,  and  assessments  partly  local  and 
partly  general,  tor  another.  Could  anything  be 
more  inconsistent  ?  Then,  as  regards  local  assess- 
ments, there  is  still  a  further  division.  In  New 
York  ihe  benefit  is  limited  to  one-hall  the  block; 
while  in  Albany  the  whole  matter  is  lett  to  the 
three  jurymen,  who  may  assess  the  whole  block, 
or  a<  many  blocks  as  they  may  detrn  proper.  The 
assessments  aie  entoiceci  also  in  different  ways. — 
In  New  Ynrk,  by  distress  wan  ant  against  the 
owner  or  occupant,  and  by  suit  against  the  [tallies 
assessed;  and  in  default  of  payment  to  the  collec- 
tor, by  sale  of  land,  redeemable  within  two  years. 
In  Albany,  by  sale  of  land,  without  any  previous 
demand.  In  Buffalo,  the  assessments  are  ID,  <le  a 
lien  upon  ;he  lands  tin-  one  year  oi:ly,  within 
which  time  they  must  b^  sold  ;  arid  when  sold, 
may  be  redeemed  the  same  as  lands  sold  under  exe- 
cution. In  Brooklyn,  they  are  collected  by  dis- 
tress warrant ;  and  in  default,  by  sale  of  lands, 


subject  to  redemption  within  two  years.  Here 
again  are  contradictions.  In  Buffalo,  assessments 
are  a  lien  upon  the  land  for  one  year  only  ;  in  other 
cities,  the^  are  a  lien  indefinitely.  In  Brooklyn, 
lands  cannot  be  sold  until  the  personal  property 
of  the  person  assessed  is  exhausted  ;  while  in  Al- 
bany, they  may  be  sold,  even  without  a  demand  of 
payment,  except  by  advertisement. 

From  this  brief  analysis  of  the  provisions  of  the 
charters  and  laws  relating  to  one  single  subject, 
we  find  no  two  alike  in  principle.  The  same 
want  of  uniformity  may  be  traced  throughout  in 
relation  to  almost  every  other  power.  Every  city 
may  be  said  to  be  a  law  unto  itself;  and  the  sover- 
eignity  of  the  state,  instead  ol  being  exercised  in 
its  behalf,  is  absolutely  surrendered  to  it,  to  be 
used  at  its  own  discretion.  As  I  have  already  said, 
the  practice  of  the  legislature  has  been  to  confer 
upon  cities  just  such  powers  as  they  asked  for. — 
These  powers  affecting  the  locality  only,  the  rest 
of  the  state  has  felt  indifferent  to  them.  Thus 
our  present  incongruous  system  has  grown  up, 
the  work  of  different  hands  in  different  parts, 
without  any  attempt  to  produce  uniformity.  The 
consequences  have  been  great  injustice  oftentimes 
to  individuals,  damage  to  the  cities,  and  much 
trouble  to  the  judicial  tribunals  of  the  state,  ari- 
sing from  the  adoption  of  wrong  principles — from 
the  consequent  mistakes  of  the  corporate  authori- 
ties— and  from  the  necessity  of  giving  each  char- 
ter its  own  judicial  interpretation.  The  only  re- 
medy for  this  is  an  uniform  or  general  law  defin- 
ing the  powers  of  cities.  It  is  objected  by  some 
that  the  attempt  to  bring  all  the  cities  to  the  same 
form  of  government  would  interfere  with  the  fran- 
chises which  were  granted  to  some  of  them.  ~In 
answer  to  this,  it  may  be  remarked  that  in  prin- 
ciple there  should  be  no  privileges  or  immuni- 
ties exercised  by  one  city  which  should  not  be  en- 
joyed if  required  by  the  others.  But  a  more  sat- 
isfactory answer  probably  is,  that  so  far  as  those 
franchises  have  a  permanency  of  profits  and 
thus  partake  of  the  character  of  private  proper- 
ty, this  provision  would  not  interfere  with  them  ; 
and  so  far  as  they  may  be  political  and  therefore 
public,  and  relate  to  the  exercise  of  the  sovereign 
power,  they  are  and  should  be  revocable  at  plea- 
sure. It  must  be  the  law  in  this  country,  that 
while  the  rights  of  private  property  are  sacred, 
political  power,  on  the  other  hand,  conferred  by 
the  legislature,  is  a  public  trust  resumable  by  it 
at  pleasure.  There  is  no  novelty  in  this  propo- 
sition for  general  laws  for  incorporations.  We 
have  such  laws  for  the  incorporation  of  libraries, 
passed  as  long  ago  as  1796,  and  also  for  religious 
societies  and  manufacturing  companies.  These 
laws  have  operated  well,  and  hundreds  of  compa- 
nies organized  under  them  are  now  in  being.— 
The  principle  is  not  new  even  as  regards  muni- 
cipal corporations.  As  has  already  been  stated, 
our  towns  all  exercise  their  corporate  powers  un- 
der one  and  the  same  law,  though  they  are  sepa- 
rately erected  by  special  act.  But  in  many  of  the 
new  states  of  the  Union,  as  in  Indiana,  Illinois 
and  Arkansas  even  the  incorporation  of  towns 
takes  place  under  a  general  law.  The  simplicity 
of  this  plan  is  most  admirable  ;  and  he  would,  for 
the  information  of  the  Convention  read  one  or 
two  of  these  statutes.  (Mr.  M.  here  read  and 
commented  upon  the  general  laws  for  creating 


966 


municipal  corporations  in  Arkansas  and  Indiana.) 
He  hoped  now  that  no  one  would  be  startled  at 
the  proposition  on  the  ground  that  it  was  an  un- 
tried experiment ;  and  that  the  gentleman  from 
Erie  would  see  that  the  different  circumstances 
of  different  places  did  not  present  obstacles  to  an 
uniform  organization.  Before  he  concluded,  he 
wished  to  say  that  he  would,  at  the  proper  time, 
when  the  subject  of  municipal  corporations  should 
be  under  consideration,  endeavor  to  point  out  the 
mistakes  of  legislation  in  regard  to  them,  and  the 
abuses  which  they  had  given  rise  to,  contenting 
himself  for  the  present  with  these  observations 
upon  the  immediate  proposition  before  the  Con- 
vention, that  of  the  mode  of  creating  corporations. 
The  Convention  then  took  a  recess. 


AFTERNOON  SESSION. 
Not  a  quorum  present. 
A  motion  to  adjourn  was  lost. 
The  question  was  on  Mr.    STOW'S  amendment 
to  amend  the  first  section,  confining  the  prohibi- 
tory clause  to   the  special  chartering  of  banking 
and  manufacturing  companies. 

Mr.  TOWNSEND  said  that  he  was  in  favor  of 
generalizing  the  law  under  which  corporations 
should  be  formed.  He  was  opposed,  however,  to 
mingling  the  subject  of  banks  with  this  article,  as 
that  belonged  especially  to  another  committee  and 
was  the  subject  of  a  special  article. 

Mr.  SWACKHAMER  said  that  the  expression 
upon  corporations  was  very  clear,  on  the  part  of 
the  people.  He  hoped  the  whole  question  of 
these  corporations  would  be  discussed  at  once, 
and  no  special  privileges  granted. 

Mr.  K1RKLAND  wanted  to  see  all  these  great 
moneyed  monopolies  put  an  end  to;  but  there 
would  be  great  difficulty  about  this  section.  As 
far  as  it  went  to  destroy  monopoly  and  exclusive 
privilege,  he  was  disposed  to  'sustain  it.  That  he 
believed  was  a  universal  sentiment  in  this  Con- 
vention. But  he  could  not  see  how  the  princi- 
ple could  be  practically  carried  out  in  reference 
to  all  corporations.  Indeed  he  was  quite  confident 
that  it  would  lead  to  great  difficulty,  to  under- 
take to  prescribe  by  general  laws  for  the  forma- 
tion of  all  the  classes  of  incorporations  now  in 
existence — to  form  a  Procrustean  bed  on  whict 
they  should  all  be  stretched — the  legislature  be^ 
ing  expressly  prohibited  from  granting  to  one  in 
corporation  or  association  privileges  which  ai. 
others  had  not.  The  legislature  could  not  devise  a 
general  law,  under  which  rail-road,  turnpike 
bridge,  plank-road,  charitable,  religious  and  lite 
rary  associations  might  be  formed — certainly  no 
if  all  these  were  to  be  invested  with  the  sam 
privileges — nor  if  the  general  laws  were  made  t 
apply  only  to  some  particular  classes  of  corpora 
tions.  It  seemed  to  him  that  the  section  shoul( 
be  limited  to  banking  arid  moneyed  corporation 
and  to  manufacturing  companies. 

Mr.  JORDAN  said  the  principles  of  the  sec 
tion  met  his  approval,  and  he  should  sustain  it 
unless  com  inced  by  discussion  that  he  was  wronf 
— he  confessed  he  had  not  given  the  subject  a 
much  attention  as  he  perhaps  should  have  done 
And  coming  to  it  without  any  preconceived  opi 
nions  or  prejudices,  he  should  be  at  all  time 
open  to  conviction.  Mr.  J.  entered  at  soin 
length  into  the  operation  of  this  section,  as  h 
supposed  it  was  designed  to  work— urging  tha 


lere  were  two  general  classes  of  corporations. — • 
ne  upon  which  the  sovereign,  in  virtue  of  the 
ght  of  eminent  domain,  conferred  the  pf>wer  of 
iking  private  property  for  public  use,  on  paying 
fair  equivalent ;  and  which  thus  affected  indi- 
idual  rights — upon  which  also  franchises,  such 
s  banking,  taking  toll  upon  public  ways  and  the 
ke,  were  conferred  by  the  legislature.  The 
ther  class  was  such  as  exercised  no  rights  or  pri- 
ileges  except  over  their  own  property ;  such 
ights  and  privileges  as  were  possessed  by  natu- 
al  persons — those  who  managed  their  own  pro- 
erty  and  affairs  in  their  own  way,  subject  to  their 
wn  regulations  and  by  laws,  which  they  had 
nlimited  power  to  establish,  so  that  they  were 
ot  repugnant  to  the  constitution  and  the  general 
aws  of  the  land.  Having  no  dominion  over  the 
property  of  others,  none  of  the  franchises  of  so- 
ereign  power;  being  designed  only  for  manu- 
acturing  or  business  purposes,  or  for  charitable, 
iterary  and  other  similar  objects,  he  thought  the 
,ommon  privilege  of  incorporating  themselves 
without  coming  to  the  legislature  for  special  char- 
ers,  should  be  established  by  the  fundamental 
aw.  He  could  see  no  evil  in  it,  but  much  good. 
t  would  save  time  and  expense  to  the  individual 
applicants.  It  would  save  the  time  of  the  Legis- 
ature,  and  expense  to  the  state,  and  it  would  en- 
able individuals,  by  a  short,  silent,  economical 
and  convenient  process,  such  as  is  now  pursued 
,vith  reference  to  manufacturing  and  religious 
corporations  to  attain  their  ends.  Nor  could  he 
see  any  objection  to  allowing  the  other  class,  so 
ar  as  the  mere  matter  of  erecting  themselves  in- 
,o  acorpotative  body  was  concerned,  to  do  the 
same  thing.  When  thus  incorporated,  it  would 
only  remain  for  them  to  come  to  the  legislature 
and  ask  for  such  rights  and  powers  as  were  inhe- 
rent in  and  could  only  be  conferred  by  the  peo- 
ple ;  and  these  might  be  conferred,  for  aught  he 
lould  see,  just  as  well  and  as  safely  on  those  na- 
ied  self-created  corporations,  as  on  private  indi- 
viduals or  natural  laws.  Then  our  statute  books 
would  not  be  loaded  with  our  hundreds  of  special 
acts,  all  repeating  the  same  general  provision  for 
erecting  "  a  body  corporate  and  politic,"  giving  it 
a  power  making  it  capable  of  "  suing  and  being 
sued,"  appointing  directors,  opening  books,  mak- 
ing by-laws  and  the  like— all  of  which  would  be 
quite  unnecessary. 

Mr.  STOW  remarked  that  that  would  be  cre- 
ating an  exclusive  privilege  and  repugnant  to  the 
language  of  the  section. 

Mr.  JORDAN  did  not  so  regard  it,  provided  all 
other  like  associations  would  be  entitled  to  the 
same  privilege  if  they  placed  themselves  on  the 
presumed  ground  of  public  necessity  or  accom- 
modation. The  privilege  would  be  special,  but 
not  exclusive. 

Mr.  STOW  supposed  the  case  of  such  a  privi- 
lege being  granted  at  one  session  of  the  legisla- 
ture, would  that  privilege  belong  to  other  asso- 
ciations of  the  same  class,  without  coming  to  the 
legislature  ? 

Mr.  JORDAN  replied  in  the  negative. 

Mr.  STOW  :  Then  the  privilege  would  be  ex- 
clusive for  the  time  being. 

Mr.  JORDAN  thought  not.  He  supposed  the 
legislature  could  not  be  said,  in  any  propriety  of 
language,  to  grant  an  exclusive  privilege,  except 


967 


where  one  of  tin:  provisions  of  the  grant  was  tlr.it 
nn  other  person  should  hi-  authorised  by  them  to 
:he  same  privilege.  He  drew  ;i  distinc- 
tion between  an  exclusive  right  of  property  and 
an  exclusive  privilege  or  franchise.  A  -r.  tut  of  a 
ri^ht  of  way  over  ;i  given  track  would  confer  an 
>.sive  properly  in  that  particular  track,  but 
the  privilege  of  constructing  a  way  on  the  same 
route  and  for  the  same  pin-poses  might  be  granted 
to  another,  unless  the  legislature  had  tied  them- 
selves up  by  making  the  first  grant  so  as  to  ex- 
clude themselves  from  making  a  second. 

Mr,  BASCOM:  Would  there  be  anything  to 
prevent  the  legislature  from  giving  the  right  to 
two  railroad  companies,  for  instance,  to  pass  over 
the  -ame  track  exactly. 

Mr.  JORDAN  said  the  question  was  either  too 
deep  or  too  shallow  for  his  comprehension.  If  it 
was  designed  to  ask  whether  the  legislature  could 
do  a  thing  physically  impossible,  as  to  grant  one 
company  the  right  of  making  and  using  a  way 
over  a  particular  track,  and  to  another  company 
the  right  to  make  and  use  another  way  over  the 
same  track  at  the  same  time,  he  thought  it  would 
he  very  difficult.  He  believed  the  omnipotence 
of  the  legislature  would  not  extend  far  enough 
for  that.  But  if  it  was  designed  to  ask  whether 
the  legislature  could  grant  such  a  privilege,  with 
the  right  of  exercising  the  power  of  eminent  do- 
main over  the  land  for  the  particular  track,  and 
then  to  grant  to  another  the  same  privilege,  with 
the  power  of  exercising  the  right  of  eminent  do- 
main over  other  land  for  a  parallel  and  contigu- 
ous track  on  the  same  route,  he  could  answer  un- 
hesitatingly, they  had  such  right.  So  far  as  the 
mere  naked  franchise  of  way  was  concerned,  they 
might  grant  it  to  several ;  but  so  far  as  the  right 
of  property  in  Lhe  land  was  concerned,  he  thought 
the  first  grantee,  and  occupant  would  have  the 
exclusive  right.  But  this  did  not  touch  the  ques- 
tion under  consideration.  The  question  is,  shall 
the  legislature  grant  exclusive  privileges  or  mo- 
nopolies ?  Shall  they  have  power  of  granting 
the  franchise  of  banking  or  taking  toll,  or  the 
like,  to  one,  and  not  to  another;  or  to  grant  it  to 
one  in  exclusion  of  another  ?  All  that  the  sec- 
tion contemplated  was  that  the  legislature  never 
should  grunt  the  right  of  doing  a  particular  thing, 
(which  natural  persons  might  not  do  without  a 
grant  from  the  sovereign  power,)  and  at  the  same 
time  stipulate  with  the  granter  that  he  should  be 
entitled  to  that  right  exclusively,  and  that  they 
could  grant  it  to  no  one  else.  All  the  legislature 
had  to  do  with  it  was  to  see  that  the  right  or  pri- 
vilege or  franchise,  so  far  as  the  sovereign  pow- 
er was  concerned,  was  equally  open  and  free  to 
all.  That  being  the  case,  the  corporation  or  in- 
dividual to  whom  the  grant  was  made  must  see 
to  it  as  best  he  might  that  he  had  the  means  or 
the  property  requisite  to  enable  him  to  avail  him- 
self of  the  privilege,  and  put  himself  in  operation 
under  the  franchise.  There  is  a  wide  difference 
between  giving  one  the  privilege  of  doing  a  thing, 
and  furnishing  hirn  with  the  means  for  doing  it. 
The  distinction  between  exclusive  privilege  and 
exclusive  right  of. property  .was,  in  his  opinion, 
well  delined. 

Suppose  the  Constitution  or  the  legislatuie 
shouiii  say  to  every  citizen  and  corporation  in 
the  s:ate,  you  may  construct  ways  and  lake  tolls 


thereon,  so  lar  as  the  privilege  or  Manchisi?  <,f  ta- 
king toil  is  concerned,  whenever  you  please  — that 
would  be  a  yenerai  piivilnge;  .  qual  loall;  ex- 
clusive to  none.  Um  t  lie  lands  d  individuals  ..re 
icquired  in  oider  to  in  die  ihese  ways,  and  he  who 
could  first  possess  himself  of  the  mle  to^uch  lands 
by  purchase  from  the  owner  would  acquiie  an  ex- 
clusive right  of  property  therein.  So  it  the  land 
was  tiken  under  a.  law  of  the  legislature  in  right 
of  eminent  domain,  on  paying  the  value.  He 
who  first  made  the  purchase,  tm  it  would  be  sub- 
stantially a  purchase)  would  have  an  exclusive 
property  in  the  land. 

Mr.  SIMMONS  asked  whether,  in  case  of  a 
bridge  company  being  formed  to  bridge  the  Hud- 
son here  at  Albany,  and  the  legislature  should 
ijive  the  power — should  they  not  Ivive  power  also 
to  make  the  privilege  worth  something,  by  mak- 
ing it  exclusive,  and  to  say  that  no  ot'iier  bridge 
should  be  built  within  a  certain  distance  of  it? 

Mr.  JORDAN  replied  that  that  would  depend 
on  circumstances.  Cause  might  possibly  arise  in 
which  such  a  power  in  the  legislature,  and  a  cau- 
tious exeiciseof  it  might  be  beneficial,  though  he 
thought  in  our  present  advanced  stale,  lew  such 
cases,  if  any  could  arise.  As  a  general  rule  mo. 
nopolies  are  odious  in  ihis  arid  alf  other  countries. 
It  did  not  lolloiv  that  the  legislature  must,  or 
would,  although  they  had  the  power,  the  inalien- 
able Constitutional  power  of  doing  so,  grant  a  fran- 
chise to  the  destruction  of  the  beneli;s  of  one  pre- 
viously granted,  when  under  the  power  large  in- 
vestments, conducing  to  public  convenience  had 
been  made  in  good  faith,  and  when  it  was  fairly 
•ind  honestly  exercised.  He  thought  it  would  be 
quite  safe  to  leave  that  to  the  legislature. 

Mr.  STRONG  said  that  he  did  not  stand  there 
to  advocate  monopolies  nor  anything  of  that  sort, 
but  he  hoped  that  the  Convention  would  proceed 
cautiously  and  see  whether  it  was  best  to  put  this 
iron  rule  into  the  Constitution,  which  would  pre- 
vent religious  and  other  societies  from  coming  to 
the  legislature  and  asking  for  some  little  privi- 
leges that  were  not  common  to  all  societies,  and 
yet  what  it  might  be  all  very  right  and  proper  to 
give. 

Mr.  CHATFIELD  said  that  we  had  general 
laws  in  relation  to  all  these  companies  ;  and  he 
urged  the  passage  of  some  such  provision  as  this 

Mr.  VAN  SCHOONHOVEN  said  that  he  should 
vote  against  the  section. 

Mr.   BERGEN  moved  the   previous  question. 

There  was  no  second. 

The  amendment  of  Mr.  STOW  was  further  de- 
bated by  Messrs.  SIMMONS,  LOOMIS,  BAS- 
COM, RHOADES  and  T1LDEN,  when 

At  the  suggestion  of  Mr.  0'CoNOR,Mr.  STOW 
varied  his  amendment  so  as  to  include  "  trading" 
companies. 

The  proposition  was  further  debated  bv  Messrs 
CAMBRELENG,  BROWN,  STOW,  MURPHY* 
MARVIN,  RICHMOND,  HARRIS,  WORDEN, 
LOOMIS  and  TOWNSEND,  when  it  was  reject- 
ed, ayes  33,  noes  41,  as  follows  : 

AYES—Mcssrs.  Allen,  F.  K.  Backus, Bascom,  Bull,  Can- 
dee,  Cook,  Gardner,!  Jraliam.  llariis,  Ilawlej-,  K  Hunting- 
ton,  Kemhie,  Kirklciinl,  .\larvin,  Maxwell,  .Miller,  Nicho- 
las, O'Uoaor,  i'atteison,  I'cnniman,  Richmond,  Shaver 
Shaw,  Simmons,  Stow,  Strong,  Swackhamer,  Ta«-«'art 
Tallmadge,  Townsend,  White,  Worden,  A. Wright,  Voung 
— 33. 


968 


NOES — Messrs.  Bergen,  Bowdish.Brown,  Burr.Cambre- 
leng.  Cornell,  Cuddeback,  Danforth,  Dubois,  Flanders, 
Hunt,  A.  Huntingtori,  Jones,  Jordan,  Kernan,  Kingsley, 
Loomis,  Mann,  McNeil,  McNitt,  Morris,  Nellis,  Nicoll, 
Powers,  President,  Riker,  Sanford,  Sheldon,  Shepard,  Ste- 
phens, Stetson,  Taft,  W.  Taylor,  Tilden,  Tuthill,  Vache, 
Waterbury,  Willard.  Wood,  W.  B.Wright,  Yawyer— 41. 

Mr.  STRONG  moved  a  reconsideration,  to  lie 
on  the  table. 

Mr.  LOOMIS  moved  to  amend  by  striking  out 
the  word  "  any"  in  the  third  line,  and  the  first 
syllable  of  the  word  incorporations;  Also  to  in- 
sert after  "association,"  in  the  first  line,  the  words 
"other  than  for  purposes  exclusively  municipal ." 
Agreed  to. 

Mr.  SHEPARD  moved  to  insert  the  word  "nat- 
ural" before  "  persons,"  and  also,  "having  a  gen- 
eral capacity  to  contract,"  after  "persons."  Lost. 

Mr.  VAN  SCHOONHOVEN  moved  to  add  to 
the  section  as  follows: — 

The  assent  of  at  least  two-thirds  of  the  members  elect- 
ed to  each  branch  of  the  Legislature  shall  be  required  to 
every  general  law  passed  creating  corporations  or  associ- 
ations, and  also  to  all  laws  authorizing  them  to  take  land 
or  to  enjoy  a  franchise  of  way  for  their  own  or  for  public 


to. 


Mr.  A.  WRIGHT  moved  to  adjourn.    Agreed 
Adj.  to  8  1-2  o'clock  to-morrow  morning. 


FRIDAY,  (Q8th  day,)  Sept.  25. 

Prayer  by  Rev.  Dr.  WYCKOFF. 

Mr.  AYRAULT  had  leave  to  record  his  vote  in 
the  affirmative  on  the  amendment  offered  by  Mr. 
STOW  and  voted  on  yesterday. 

Mr.  ALLEN  presented  the  remonstrance  of 
W.  C.  Rhinelander  and  others  against  imposing 
personal  liabiltiy  on  stockholders  of  corporations. 

Mr.  CHATFIELD  reported  against  the  adop- 
tion of  the  proposition  offered  yesterday  by  Mr. 
MANN  as  a  section  of  the  Constitution. 

Mr.  MANN  hoped  the  Convention  would  disa- 
gree to  the  report  of  the  committee.  It  was  well 
known  to  every  member,  that  the  clerks  of  the 
Assembly  and  Senate  received  their  full  salaries, 
and  tljat  assistant  clerks  were  paid  by  indirect 
appropriations  in  the  supply  bills  of  every  year. 
The  Senate  clerk's  salary  was  not  too  much  per- 
haps, as  he  performed  the  duties  of  clerk  of  the 
Court  of  Errors. 

Mr.  PATTERSON  said  he  was  paid  extra  for 
that  service  in  the  shape  of  fees. 

Mr.  MANN  said  he  was  not  aware  of  that.  It 
was  so  much  the  more  necessary  to  adopt  this,  or 
some  similar  section.  There  was  no  reason  why 
the  salaries  of  these  clerks  should  not  be  placed 
within  some  reasonable  limit  as  well  as  the  pay 
of  members.  They  could  not  receive  more  than 
$3  per  day,  and  for  a  limited  time.  Why  should 
these  clerks  receive  $1200  and  $'1800  for  the  same 
time  ?  As  for  the  assistant  clerks,  he  designed 
that  the  legislature  should  appoint  as  many  as 
was  necessary,  and  pay  them  reasonably  for  their 
services.  The  clerks  were  here  no  longer  than 
the  members,  except  to  make  the  index  to  the 
session  laws,  for  which  they  were  paid  extra.— 
The  clerk  of  the  Senate  would  have  no  extra 
duty  to  perform  if  this  constitution  was  adopted ; 
as  the  Court  of  Errors  would  be  abolished. — 
Under  the  proposed  section,  they  would  be  paid 
a  compensation  equal  to  that  of  members  of  the 
legislature. 


Mr.  PATTERSON  thought  the  committee 
were  right  in  reporting  that  that  precise  provision 
should  not  be  incorporated  in  the  constitution. — 
It  proposed  that  the  clerk  shall  receive  no  more 
than  members  of  the  Assembly ;  but  it  must  be 
recollected  that  the  clerk  had  Very  laborious  du- 
ties to  discharge,  and  had  to  employ  several  as- 
sistants. 

Mr.  MANN  reiterated  that  those  assistant  and 
engrossing  clerks  were  paid  by  the  supply  bill — 
as  much  as  $450. 

Mr.  PATTERSON  said  some  allowance  might 
have  been  paid  to  the  assistants  of  the  Assembly, 
for  the  labor  was  greater  than  in  the  Senate. — 
The  salary  of  the  clerk  of  the  Senate  differed  in 
consequence — that  being  $1200  while  the  clerk 
of  the  Assembly  received  $1800.  But  it  must 
also  be  recollected  that  the  clerk  of  the  Senate 
received  fees  as  clerk  of  the  Court  of  Errors. 

Mr.  MANN  said  these  clerks  were  also  paid 
extra  for  preparing  the  index  of  the  laws. 

Mr.  PATTERSON  went  on  to  explain,  saying 
that  he  was  willing  that  the  salary  should  be 
fixed. 

Mr.  MANN  contended  that  unless  some  pro- 
vision were  made,  the  system  which  had  been 
pursued  would  be  continued. 

Mr.  PATTERSON  said  he  was  not  in  favor  of 
the  section  proposed  by  Mr.  MANN,  but  he  would 
have  a  provision  declaring  that  the  compensation 
of  the  officers  of  the  legislature  should  not  be  in- 
creased or  diminished  during  their  term  ot  office. 

Mr.  SWACKHAMER  moved  to  lay  the  report 
on  the  table. 

The  vote  stood — 27  to  10,  no  quorum. 

The  vote  was  again  taken,  and  there  were  45 
to  14,  still  no  quorum. 

Mr.  BURR  called  for  the  yeas  and  nays  and 
there  were  yeas  56,  nays  22. 

This  was  carried :  Ayes  56,  nays  22. 

THE  PRINTING  OF  THE  JOURNALS. 
Mr.  NICOLL  offered  the  following  : 

Resolved,  That  the  printers  to  the  convention  be  direct- 
ed by  the  secretaries  to  lay  the  Journal  on  the  table  of 
the  Convention  by  Wednesday  next  j  printed  up  to  the  pre- 
sent time. 

Mr.  NICOLL  said,  that  the  printers  were  now 
a  month  behind  with  the  journal ;  it  was  very  im- 
portant that  it  should  be  all  printed  up  and  laid 
on  their  table  as  early  as  possible  that  they  might 
examine  it  and  correct  any  errors  in  it. 

Mr.  TOWNSEND  offered  the  following,  and  it 
was  agrjeed  to  : 

Resolved,  That  the  unanimous  consent  of  this  Conven- 
tion be  given  to  WM.  S.  COPJELY  to  record  his  name  in  the 
affirmative  on  every  section  of  the  second  article  of  the 
report  of  standing  committee  number  three,  on  the  power 
to  create  future  state  debts  and  liabilities  and  restraint 
thereof,  on  account  of  Mr.  CONELY  being  unfortunately  ab-  , 
sent  at  the  time. 

Mr.  F.  F.  BACKUS  offered  a  resolution  re- 
scinding the  fifteen  minutes  rule.  He  said  that 
when  the  hammer  went  down  yesterday  at  the 
end  of  fifteen  minutes,  gentlemen  continued, 
when  they  ought  to  have  sat  down  at  once.  It 
was  broken  through  four  or  five  times.  If  we 
had  a  resolution  or  rule  let  us  adhere  to  it. 

Mr.  SWACKHAMER  thought  we  should  ad- 
here to  rules ;  but  it  was  not  the  way  to  make 
them  observed  by  rescinding  them  a  day  or  two 


969 


after   they  were   adopted.     He  moved   to  lay  the 
resolution  on  the  table.     Agreed  to. 
BOARD  OF  APPRAISERS. 

Mr.  TOWNSEND  moved  a  resolution  of  inqui- 
ry as  to  the  propriety  of  adopting  the  following 
as  a  section  of  the  Constitution: 

Resolved,  That  the  committee  appointed  to  revise  the 
articles  p.issed  upon  by  the  Convention  be  requested  to 
consider  the  propriety  of  placing  the  following  section  in 
the  articles  respecting  the  creation  and  duties  of  the  state 
officers:— 

fc  — .  The  comptroller,  treasurer,  surveyor  and  attorney 
generals  shall  constitute  a  board  to  adjust  the  appraise- 
ment of  the  assessors  of  the  several  counties,  of  the  valua- 
tion of  the  real  and  personal  estate  therein,  and  to  provide 
for  an  equitable  imposition  of  state  or  national  district  tax- 
ation. 

Mr.  TALLMADGE  said  this  was  a  lofty  prin- 
ciple, but  he  hoped  that  the  committee  on  enroll- 
ment would  not  be  allowed  to  put  any  articles 
into  the  Constitution  on  this  subject 

Mr.  TOWNSEND  stated  that  he  had  seen  the 
ineffectual  attempts  made  by  the  legislature  to  en- 
force by  salutary  laws  provisions  to  equalize  the 
imposition  of  the  State  tax,  and  he  now  hoped  we 
should  be  able  to  establish  the  principle  in  the 
Constitution  we  were  making.  While  the  facts 
existed  as  exhibited  in  the  returns  before  us,  of 
the  inequality  of  the  Assessor's  appraisement, 
with  reference  to  the  true  value  of  property  re- 
turned by  them,he  hoped  no  one  would  oppose  the 
reference  of  this  resoluiion.  In  the  counties  of 
New  York  and  Kings,  the  full  value  of  the  real 
estate  (though  not  of  the  personal)  was  returned, 
whereas  in  the  county  of  Albany  but  about  one- 
half  of  the  real  value  of  propeity  was  taxed,  and 
he  believed  ir-  the  county  of  Rensselaer  even  a 
smaller  proportional  estimate  was  made.  The 
principle  01  equal  taxation  was  a  just  one,  and  he 
hoped  that  we  should  not  be  prevented  from  as- 
serting it  in  the  Constitution.  He  did  not  care 
how  the  board  of  State  Assessors  or  Revisers 
should  be  constituted  ;  in  this  respect  he  would 
yield  to  the  best  suggestions  of  gentlemen. 

Mr.  CROOKER  :  Does  the  gentleman  suppose 
that  all  the  personal  property  in  his  own  city  is 
returned  ?  Certainly  not.  Nor  do  I  for  a  moment 
suppose  that  the  110  millions  returned  as  the 
whole  amount  of  personal  property  in  the  State — 
including  the  capitals  of  all  our  business  incorpo- 
rations and  associations — represents  a  one  fourth 
part  of  what  actually  exists — it  is  to  remedy  this 
difficulty  that  I  propose  some  constitutional  ac- 
tion as  well  as  the  more  palpable  fraud  of  esti- 
mating real  estate,  in  such  a  manner  as  not  to 
bear  its  fair  portion  of  taxes  for  other  than  for  lo- 
cal and  county  purposes. 

Mr.  TALL MADGE  protested  ag.iinst  this  com 
miltee  of  engrossment  having  the  power  to  do 
what  the  resolution  contemplated.  It  would  uu. 
settle  ail  they  had  done  so  well,  and  set  every- 
thing they  had  finished  all  afloat  a^;»»n. 

Mr,  STETSON  said  the  Legislature  had  the 
power  to  regulate  this  mailer  at  present.  He 
hoped  no  new  questions  would  be  introduced  at 
this  late  ataa;e<'f  proceedings. 

Mr.  C AM B HELEN G  hoped  no  more  time 
would  be  lo>t  on  UHS.  He  hoped  Mr.  TOWNSEND 
would  withdraw  it. 

Mr.  TOWNSEND:  It  being  important,  and  the 
principle  a  correct  one,  I  must  press  it,  sir. 

96 


Mr.  CAMBRELENQ  moved  the  previous  ques- 
ion 

Mr.  STETSON  would  not  give  this  central 
power  authority  to  go  250  miles  or  anywhere  to 
fix  the  value  of  property. 

The  previous  question  was  not  seconded;  ayes 
47,  noes  7 — 54.  No  quorum. 

Mr.  TOWNSEND  (by  consent)  moved  to  refer 
the  resolution  to  a  select  committee  of  five.  Car- 
ried. 

The  Convention  then  took  up  the  unfinished 
business,  being  the  report  on 

INCORPORATIONS. 

Mr.  VAN  SCHOONHOVEN  said  that  the  sec- 
tion was  incomplete  without  the  amendment  he 
had  proposal,  providing  lor  a  two-third  vote 
to  pass  those  several  corporation  laws 

Mr.  LOOM  IS  would  refer  the  gentleman  to 
the  fifth  section. 

Mr.  VAN  SCHOONHOVEN:  No,  sir,  that 
does  not  do  it.  The  legislature  could  grant  the 
power  under  a  general  law. 

Mr.  LOOMIS  said  they  could  not  do  it. 
Mr.VAN  SCHOONHOVEN  said  the  section  gave 
full  power  to  take  land  anywhere,  and  any  body 
of  men  could  be  incorporated  for  any  purpose  un- 
der God's  Heaven.  Lands  may  be  taken,  and 
there  is  nothing  in  the  section  to  confine  this  to 
the  State  at  all.  If  these  applications  are  to  come 
to  the  legislature,  then  there  will  be  safety ;  but 
in-  all  cases  a  two-third  vote  would  be  required. 

Mr  PERKINS  presumed  that  the  general  pro- 
visions of  this  article  met  with  general  approba- 
tion, but  apprehension  existed  that  it  could  not 
be  applied  to  franchises  of  the  right  of  way.  In 
those  apprehensions  he  confessed  his  participa- 
tion. The  Chairman,  he  understood,  had  said 
that  the  legislature  could  provide  for  the  regula- 
tion of  charges  and  freights  thereon,  but  he  (Mr. 
P.,)  after  the  best  examination  he  could  give  it, 
could  not  view  it  in  that  light.  Mr.  P.  went  on 
critically  to  examine  the  sections  to  show  where- 
in these  views  were  sustained.  He  (Mr.  P.)  did 
not  like  to  have  these  general  laws  to  regulate 
the  franchise  of  way ;  it  could  not  be  done  or  car- 
ried into  effect.  He  was  opposed  to  having  land 
and  estates  of  individuals  to  be  taken  by  incorpo- 
rations for  a  road  or  way,  first  to  pass  through 
the  government.  He  would  move,  therefore, 
when  we  come  to  the  fifth  section,  to  strike  out 
'  franchise  of  way." 

Mr.  BRUCE  said  if  he  rightly  understood  the 
provisions  of  this  section,  it  was  that  the  legisla- 
ture should  pass  general  laws,  by  which  private 
corporations  should  be  created  in  the  same  man- 
ner that  the  general  banking  laws  of  the  state 
creates  banking  institutions.  This  he  regarded 
as  a  mischievous  provision,  because  it  was  a  vio- 
lation of  individual  private  rights,  to  authorise 
a  corporation  to  take  the  property  of  a  private 
person.  He  said  it  was  argued  that  the  land  thus 
taken  for  railroads  and  other  purposes,  was  pub- 
lic property  and  for  public  use.  This  he  denied, 
and  insisted  that  it  was  as  much  private  property 
(although  owned  by  a  corporation)  as  the  proper- 
ty of  an  individual.  The  primary  object  of  all 
railroad  companies  was  to  make  money  and  bene- 
fit themselves,  and  the  accommodation  such  rail- 
roads afforded  to  the  public  was  a  secondary  con- 
sideration. He  would  place  corporations  on  an 


970 


equal  footing  with  individuals,  giving  to  them 
the  same  rights  and  the  same  privileges ;  and  be- 
yond this  he  would  not  go  by  a  constitutional  pro- 
vision so  far  as  the  taking  of  private  property  was 
concerned.  (Mr.  B.  further  continued  the  de- 
bate.) 

Mr.  CAMBRELENG  said  this  debate  \vould 
be  very  proper  on  the  5th  section,  but  was  en- 
tirely out  of  order  here ;  it  had  nothing  to  do 
with  the  question. 

Mr.  K1RKLAND  said  that  he  was  in  favor  of 
the  principle  of  the  first  section  of  the  article 
under  consideration  and  should  be  happy  to  see 
some  provision  adopted,  by  means  of  which,  that 
principle  could  be  safely  and  effectually  carriec 
out.  But  he  was  confident  that  in  this  section  as 
it  stood,  there  were  many  difficulties,  of  which 
the  chairman  of  the  committee,  who  reported  it, 
did  not  seem  to  be  aware. 

In  the  first  place,  Mr.  K.  did  not  believe  that  it 
would  be  possible  by  general  laws  merely  to 
provide  for  all  cases,  where  it  might  be  perfectly 
proper  and  entirely  unobjectionable  to  grant  cor- 
porate privileges  ;  thus  in  the  case  of  charitable 
societies,  as  orphan  asylums,  in  the  case  of  nu- 
merous societies,  whose  objects  were  purely  be- 
nevolent and  philanthropic,  it  would  be  difficult 
not  to  say  impracticable,  to  form  a  general  law 
applicable  to  all  cases  :  the  amount  of  property 
•which  should  be  held,  the  amount  of  revenue 
proper  to  be  allowed,  the  number  and  description 
of  officers  of  the  society,  might  and  doubtless 
would  greatly  differ  in  different  cases,  and  would 
depend  on  a  vast  variety  of  contingencies  and 
circumstances,  and  he  very  much  doubted  wheth- 
er any  general  law  or  laws  could  be  so  framed  as  to 
admit  of  the  creation  of  such  associations  m  nu- 
merous instances,  where  their  establishment 
would  promote  the  cause  of  benevolence,  of  cha- 
rity and  philanthropy,  end  where  no  possible 
objection  could  exist  to  them.  The  same  diffi- 
culties would  be  found  in  so  framing  a  general  law 
as  to  admit  of  the  creation  of  literary  institutions 
on  one  single  unvarying  model — for  the  circum- 
stances in  one  place  or  neighborhood,  where  such 
a  corporation  might  be  required,  might  be  so  vari- 
ant from  those  of  another,  as  to  render  it  impos- 
sible to  organize  an  institution  for  each  locality, 
under  one  and  the  same  law.  Again,  there  is  an 
infinite  vane  y  of  subjects  and  objects,  in  reference 
to  which  such  associations  have  been  and  will 
hereafter  be  lequired  by  considerations  of  public 
policy,  of  humanity,  in  tact,  of  the  public  good, 
i»nd  which  it  may  well  be  conceived  could  by  no 
possibility  be  oiganized  under  *•  a  general  law." 
These  views  might  he  further  illustrated,  but  it 
would  not  be  necessary.  There  were  oiher  and 
perhaps  more  serious  objections  to  this  section, 
as  it  now  stood.  Mr.  K.  did  not  believe  it  possi- 
ble to  execute  it  in  such  a  way  as  not  to  pioduce 
great  danger  and  ditlicnity.  Take  the  cas-e  of  rail 
road,  turnpike,  canal,  or  bridge  companies;  hov\ 
could  they  be  formed  under  a  general  law,  unies.- 
that  laa  permitted  them  to  take  lands,  streams, 
&c.,  belonging  to  individuals,  ai;d  how  could  a 
general  law  be  framed  to  give  power  and  authority 
like  this,  that  could  not  expose  the  rights  of  the 
citizen  to  be  trampled  on  and  violated?  Mr  K. 
said  that  (as  contemplated  by  the  section,  not  only 
no  corporation  could  be  crea'f.d,  but  no  "exten- 


sive privilege"  could  be  conferred,  except  by 
"genet,.!  law,"  and  consequently  the  rates  or  tori 
it  would  give,  must  be  the  smie  in  all  rail  road 
companies,  in  all  bridge  companies.  &.C.;  ihat  is, 
if  no  special  act.  could  be  passed,  giving  to  any 
one  company  a  "  privilege"  not  common  to  all.— 
Mr.  K.  could  not  see  how  the  raks  of  compensa- 
tion could  be  different  in  companies  of  the  same 
kind, and  formed  under  !he  s.  rne  general  law,  in 
the  case,  loo,  of  these  companies  where  rights  of 
way  were  one  of  the  main  things  to  be  obtained, 
to  enable  them  to  exercise  theircorporate  business, 
it  was  implied  in  this  section  that  thtse  rights  were 
all  to  be  obtained  in  one  general  mode;  and  Mr. 
K.  did  not  see  any  escape  Trom  one  of  two  resuli* 
— either,  that  much  greater  power  must  be  given 
10  the  companies  than  it  would  be  safe  lor  the 
citizen  that  they  should  possess,  or  some  interme- 
diate tribunal,  as  a  board  of  couimissioneis,  must 
be  instituted  by  the  "general  law,"  which  tribunal 
should  decide  what  lands,  streams,  &.c.,  the  com- 
pany should  lake — what  route  of  road  or  canal  they 
should  pursue,  &c.,  and  thus  this  tribunal  would 
practical !y  and  .-ubstantiall)  possess  the  power  of 
determining  whether  or  not  the  corporation  should 
be  created.  Mr  K.  saw  many  other  difficuliies- 
that  would  flow  from  a  provision  like  this,  and  he 
must  enter  his  protest  against  it.  He  was  perfect- 
ly willing,  nay,  desirous  to  prevent  the  future  cre- 
ation of  monopolies  and  exclusive  privileges,  and 
to  tfiecttially  pr>'hibit  the  Legislature  Ircm  pass- 
ing any  special  laws  by  which  they  could  hereaf- 
ter come  into  existence.  The  great  source  of  com- 
plaint heretofore  had  been  the  "  bank  monopo- 
lies," and  it  was  a  matter  of  his.orical  fact  that 
the  corrupt  practices  that  were  formerly  resetted 
j  to,  to  procure  bank  charters,  had  mainly  pro- 
duced i he  *«  two-thirds"  clause  in  the  existing 
Constitution;  in  fact,  the  transactions  of  the  Bank 
of  America  in  the  halls  of  the  Legislature,  were 
the  immediate  cause  of  that  inhibitory  provision* 
Mr.  K.  was  decidedly  in  favoi  of  providing,  in  the 
Constitution  we  are  about  to  frame,  against  the 
grant  of  any  special  bank  charters  heiealter,  and  he 
believed  that  a  section  authoiizmg  the  legislature  to 
pass  "  general  laws" for  incorporations  lor  banking, 
manufacturing  and  trading  purposes,  and  inhibit- 
ing special  charters  for  these  objects,  would  at- 
tain the  desired  end,  would  cut  up,  foiever,  ''ex- 
clusive privilege  and  monopoly,"  and  would  fully 
satisfy  the  expectations  and  wishes  of  our  consii- 
tuents.  All  this  could  be  safely  and  easily  sccoin. 
pjished.  When  we  attempted  more,  Mr  K.,  be- 
lieved that  we  were  attempting  that  which  was 
wholly  useless,  and  which  was  demanded  by  no 
considerations  of  public  good  or  equal  justice — 
and  he  was  convinced  that  the  section  in  question, 
instead  of  effecting  she  bent  fits  iisauihor  undoubt- 
edly intended,  would  lead  lo  great  difficul'y  and 
inconvenience,  and  as  he  apprehended,  to  serious 
dantjeis  and  evils  lo  the  citizens.  He  therefore 
trusted  it  wi/uld  be  rejectt-d,  or  at  any  rate  so  mo- 
dified as  to  attain  the  object  which  he,  (Mr.  K  ,) 
in  common  with  the  gentleman  who  repotted  it, 
had  sincerely  at  heart,  while  at  the  same  time,  the 
objections  Mr.  K  had  slated,  and  many  olhers 
which  might  be  stated,  if  (he  short  time  allowed 
to  each  member  in  this  debate  permitted,  would 
be  entirely  obviated. 
Mr.  BASCOM  said  it  was  the  duty  of  the  gov- 


971 


eminent  to  make  roads  and  ways  every  where 
through  the  country.  But  there  was  a  vast  dif- 
ference between  an  incorporated  company  for 
manufacturing  purposes,  and  one  for  the  construc- 
tion of  a  road  or  railway,  or  magnetic  telegraph, 
&c.  He  did  not  want  to  engraft  these  arbitrary 
provisions  in  the  constitution. 

Mr.  NICOLL  asked  Mr.  LOOMIS  if  he  would 
insert  the  proviso  of  the  gentleman  from  St.  Law- 
rence. 

The  Chair  said  Mr.  LOOMIS  had  sent  up  this 
proviso  to  go  in  the  first  section  after  the  word 
*'  privilege,"  except  as  provided  in  this  article. 

Some  desultory  conversation  here  ensued  be- 
tween Messrs.  LOOMIS,  VAN  SCHOONHOVEN,  Ni- 
COLI,  and  PERKINS. 

Mr.  HUNT  said,  gentlemen  seemed  anxious  to 
invent  something  that  may  have  the  appearance 
of  a  reason  to  justify  them  for  voting  against  an 
article  depriving  the  legislature  of  the  power  of 
granting  monopolies  and  special  privileges.  The 
gentleman  from  Erie?  yesterday,  spoke  of  an  acad- 
emy in  his  neighborhood  having  a  ferry  monopo- 
ly to  sustain  it,  and  complained  that  the  first  sec- 
tion would  prevent  any  such  marriage  of  litera- 
ture and  monopoly  hereafter.  Might  he  not  bet- 
ter have  worded  his  objection  thus:  "  We  have  a 
ferry  monopoly  in  our  neighborhood  with  an  aca- 
demy to  cloak  it  ?"  The  gentleman  from  Albany 
seemed  to  think  that  if  the  legislature  should  per- 
mit a  bridge,  &c.  to  take  toll — that  is,  to  take  pay 
for  its  work — it  would  enjoy  special  privileges. 
Lesser  lights  have  put  forth  lesser  arguments 
still.  Many  seem  disposed  to  vote  against  the 
first  section,  because  the  fifth  does  not  suit  them. 
They  will  gratify  their  spite  against  John  Doe  by 
knocking  down  John  Smith,  who  has  given  no 
cause  of  quarrel.  There  is  no  use'in  continuing 
a  debate  in  this  way,  I  therefore  move  the  pre- 
vious question  upon  this  1st  section. 

Mr.  riUN  1'  VM  hdrew  it  at  ifee  request  of  Mr. 

O'CONOR. 

Mr.  O'CONOR  seat  up  his  substitute,  but  it 
was  not  in  order. 

(}1.  Associations  for  the  pecuniary  gain  or  profit  of  the 
associates,  may  be  c  eat*-d,  incorporated  or  continued,  by 
vmue  oi  general  laws;  but  not  by  spec.al  acts  All  pow- 
ers acquired  under-general  laws  sha.l  be  liable  to  altera- 
tion or  extinguishment  by  law. 

Mr.  O'CONOR  said  he  would  renew  the  previ 
ous  question  it'  Mr.  HUNT  wished. 

Mr.  HUNT  said  no;  but  he  asked  if  the  amend- 
ment  ot  Ins  colleague  would  not  permit  a  lottery, 
grant  or  bank  charter  to  associations  formed  under 
literary,  charitable,  or  patriotic  pretences,  and 
thus  leave  an  opening  for  the  most  odious  monopo- 
lies? 

Mr.  SWACKHAMER  said  the  question  of  in 
divid»al  liability  ol  incorporators,  and  ot  genera] 
laws  on  the  subject  had  been  fully  discussed  mir- 
ing the  last  few  years  He  had  seen,  year  afiei 
year,  this  hall  fill<  d  with  lobby  members,  pressing 
th^ir  claims  upon  the  Legislature,  and  when  thev 
were  told  that  a  general  law  would  be  passed,  ob 
viating  the  supposed  necessity  tor  special  acts  01 
incorporations,  they  would  object  on  the  giouru 
that  such  laws  would  not  answer  iheir  particulai 
purpose.  The  fact  was, that  without  the  exclusive 
privilege,  their  charters  would  be  entirely  worth 
less  to  many  who  procured  ihem,  for  it  was 


ommon  practice  for  those  patriots  to  sell  out  their 
ight  in  the  artificial  thing  thus  created,  and  which 
:onsi?ted  alone  in  the  amount  thereby  extracted 
rom  the  rnass  of  the  people,  through  the  most 
ontemptible  fraud.  The  united  eftorts  of  these 
nen  were  always  brought  to  bear  against  the  pas» 
age  of  general  laws  on  'his  subject,  and  they  had 
leretofore  succeeded  to  admiration;  it  therefore 
became  necessary  to  attend  to  the  matter  now, 
while  they  were  out  of  the  way.  The  whole 
0  unfry  had  been  groaning  under  this  species  of 
'egislation  for  nearly  halt' a  century.  The  rights  of 
he  people  had  been  sacrificed  at  the  shrine  of  mo- 
nopoly and  special  privileges,  and  their  best  inter- 
?sts  disregarded  at  the  n"d  cf  bankers  and  stock- 
obbers.  The  prerogative  of  government  which 
ihoulj  shield  all  from  wrong,  had  been  employed 
n  inflicting  injury  on  the  masses  for  the  benefit 
)f  the  privileged  few.  Without  regard  to  the  un- 
mportant  amendment  directly  before  the  Conven- 
ion,  he  considered  the  whole  question  of  incor- 
lorations  under  discussion,  and  he  only  regretted 
ime  would  not  permit  hirn  to  say  what  seemed  to 
>e  necessary  on  a  question  so  deeply  affecting  the 
vhoie  people  not  merely  of  this  State,  but  ot  the 
Jnion.  He  thought  gentlemen  behind  the  age, 
who  objected  to  this  prohibition  to  legislative 
xiwer,  in  granting  special  privileges  and  exclu- 
sive monopolies.  They  pointed  to  the  prosperity 
and  glory  of  the  country  as  an  evidence  of  those  in- 
stitutions; but  was  it  not  more  likely  owing  to  the 
fertility  of  our  soil,  the  inexhaustible  means  of 
wealt  h,  and  ihe  enterprise  of  a  free  people,  than  to 
his  kind  oi  Legislation.  He  was  not  opposed  to  any 
egitimate  means  by  which  capital  might  be  made 
more  productive,  but  he  desired  to  keep  in  view 
the  productiveness  of  labor  at  the  same  time.  Ob- 
servation had  convinced  him  that,  more  pains  had 
seen  taken  to  increase  the  income  of  associate  ca- 
pital and  of  combined  roguery,  than  for  the  pro- 
;ection  of  the  unquestionable  rights  of  the  labor- 
ing poor.  One  of  the  most  insidious  and  success- 
ful means  of  depriving  honest  industry  of  its  just 
reward,  and  of  building  up  fortunes  for  the  idle 
and  profligate,  ever  devised  by  human  ingenuity, 
was  the  system  of  banking  adopted  in  this  coun- 
try and  in  England.  A  smooth  piece  of  paper,  a 
^retty  vignette,  and  a  couple  of  signatures,  per- 
haps of  men  who  would  have  been  more  legiti- 
mately and  usefully  employed  in  digging  out  iron 
ore  in  the  Clinton  mines,  have  repeatedly  be- 
come the  circulating  medium  of  the  country.  He 
well  remembered  that  while  in  business  in  the 
city  of  .New  York,  he  was  compelled  to  carry 
these  promises  to  pay  to  their  makers  in  Wall 
street,  the  best  of  whom  would  turn  him  ofi'to 
the  tender  mercy  of  their  agents — the  brokers — 
who  would  as  a  favor  pay  from  73  to  80  cents  to 
the  dollar,  in  change,  which  was  found  necessa- 
ry in  conducting  business.  Thus  these  shylocks, 
while  in  possession  of  abundant  means,  were  buy- 
ing up  their  liabilities  at  a  discount  of  25  cents 
on  the  dollar,  at  the  same  time  others,  less  re- 
gardful of  the  future  or  better  satisfied  with  the 
past  and  present  profits,  refused  to  pay  any  por- 
tion of  their  indebtedness.  If  natural  persons 
were  guilty  of  such  villany,  they  would  receive 
their  reward  in  State  prison,  but  these  artificial 
things  go  free.  This  was  not  all,  for  in  the  midst 
of  the  general  ruin  and  misery,  they  would  bid 


972 


defiance   to  the   law   and   dictate   the  terms  on 
which  they  would  resume  payment.     How  often 
had  the  country  witnessed,  during  these  periodi- 
cal revulsions,  brought  on  by  the  redundancy  and 
contraction  of  the  paper  circulating  medium,  the 
halls  of  legislation  besieged  by  these  distraction- 
ists,  demanding  in   threatening  tones,   (which  if 
found  Unavailing,  bribery  was  the   next  resort,) 
to  be  exonerated  from  all  legal   responsibility  to 
pay  their  debts.     They  had  usurped  the  govern- 
ment, trampled  under'foot  the  constitution,  vio- 
lated the  laws  of  God  and  dishonored  man.     Dur- 
ing these  revolutionary  times,  from   fifteen  to 
twenty  thousand  industrious  mechanics  and  work- 
ing men  were  walking   about  the  streets  of  the 
large  cities,  seeking   employment,   and  received 
a  mere  pittance,  scarcely  sufficient  to  obtain  the 
necessaries  of  life.     So  it  was  with   every  other 
honest  occupation — none  obtained   the  reward  to 
which   industry   was  entitled.     How    many    of 
these  poor  men  returned   home   every   Saturday 
night,  dejected  in  spirit,  with  their  heads  bowed 
down  to  the  ground  from  incessant  toil  and  a  fear- 
ful anxiety  tor  the  future  !     Perhaps  an  interest- 
ing  familv   are  waiting  to  welcome  with  smiles 
the  industrious  parent   to   his  humble  abode. — 
But  how  soon  these  smiles  were   turned  to  sor- 
row when  informed  by  the  care-worn  father  that 
he  knows  not  where   to  get  bread  the  ensuing 
week  for  his  little  ones.     How  painful  it  was  to 
witness  such    scenes,   especially    in   a   country 
abounding  with  plenty  :  that,  too,  while  the  art- 
ful and  cunning  are  revelling  in   wealth,  wrung 
from  the  labor  of  the  poor.     You  talk  of  the  pros- 
perity of  the  country,  and  refer  to  your  wealthy 
citizens  and  magnificent  edifices  as  an  evidence  of 
it.     He  did   not   consider  this  a  safe  criterion  by 
which   to  judge.     The  contentment  and  happi- 
ness of  the  masses  was  the  only  evidence  of  the 
real  prosperity  of  a  country.     What  benefit  was 
it  to  the  country  at  large,  though   the   rich  few 
reside   in  palaces,  while  the  laboring  many   are 
driven   into  hovels?     What  though  your  bankers 
and  brokers  ride  in  gilded  carriages,  while  your 
honest  poor  faint  under  the  burdens  of  the  day  ! 
What  though  your  feudal  landlords  rule  with  a 
rod  of  iron,  while  the  tenants  are  bound  by  their 
command  ?     Was  there  no  .sympathy  left  in  the 
human  heart,  no  commisseration  for  the  oppress- 
ed poor  ?     Were   it  possible  to   collect  together 
the  rivers  of  tears  shed  by  suffering  humanity  in 
consequence  of  special  and  unequal  legislation 7 
they  would  not  be  sufficient  to  obliterate  the   in- 
famy of  unjust  laws,  nor  wash  out  half  the  crimes 
resulting  therefrom.     He   was  not  satisfied   that 
the  condition  of  the  producing  classes  in  this  coun- 
try was  improving;  he  had  seen  nothing  in  them 
to  encourage  the  philanthropist.     The  best  me- 
chanics, with  constant  employment,  could  scarce- 
ly maintain  their  families  respectably  and  com- 
fortably.    The   time   was   in  this  country  when 
mechanics  could  reserve  something  from  their 
weekly  earnings  for  future  events,  but  it  was  not 
so  now — and  why  ?     He  believed  it  was  because 
we  had  departed  from  the  true  principles  of  go- 
vernment, in  creating  artificial  bodies  and  inter- 
fering with  the  private  business  of  life.     We  had 
dug  channels  through  which   the  wealth  justly 
belonging   to  and  resulting  from  the  production 
and  industry  of  the  country,  had  been  transferred 


to  the  coffers  of  the  idle  and  non-producing.  If 
this  was  not  true,  why  was  it  that  you  see  men 
of  intelligence,  frugality  and  industry  struggling 
through  the  world,  scarcely  able  to  support  a  fa- 
mily of  the  same  character,  while  the  indolent  and 
extravagant,  possessing  no  other  character  than 
that  of  dishonesty,  are  rolling  in  luxury  and  ease  ? 
perfect  equality  of  condition  was  not  to  be  ex- 
pected, but  the  disparity  was  too  great.  He  had 
no  doubt  but  that  independent  of  the  interference 
of  government,  social  and  primary  equality  would 
jxikt,  misfortune  excepted,  in  nearly  the  same 
proportion  as  you  find  that  of  intelligence  indus- 
try and  frugality.  Under  the  present  arrange- 
ment of  society  there  was  not  even  an  approxima- 
ion  to  this  rule,  but  on  the  contrary  he  had  shown 
that  it  was  quite  the  reverse.  The  immense 
wealth  of  a  few  individuals  in  this  country  must 
lave  come  from  somewhere.  It  could  not  have 
sprung  from  nothing,  f i  r  if  you  take  ought  from 
ought  nothing  remains.  And  he  thought  it  was 
clear  that  the  origin  of  wealth  was  found  in  the 
:>rod»ctive  labor  of  the  country,  if  so,  by  what 
means  was  it  directed  from  its  legitimate  source  ? 
tie  answered  by  partial,  special  and  unjust  laws. 
[f  by  process  of  legislation  this  wealth  or  capital 
should  revert  to  those  who  produced  it,  every  in- 
habitant of  the  country  would  be  comparatively 
rich,  the  lazy  and  profligate  exeepted.  Fix 
this  as  a  starting  point,  and  from  thence  conduct 
the  goverment  on  just  principles,  and  it  would 
require  a  thousand  years  to  effect  the  same  ine- 
quality that  now  exists,  if  indeed  it  could  ever  be 
done.  He  would  not  attempt  to  describe  the  con- 
dition of  a  people  under  this  new  order  of  things, 
for  it  would  be  like  spreading  a  beautiful  table 
before  a  starving  roan,  with  the  assurance  that  if 
he  eat  thereof  he  should  die.  Time  would  not 
warrant  him  in  discussing  this  question  any  farth- 
er, except  to  express  a  sincere  hope  that  the  sub- 
stance of  the  report  of  the  committee  might  be 
adopted.  The  difficulties  suggested  by  the  gen- 
tleman from  N.  Y.  (Mr.  O'CONOR)  respecting  the 
establishment  of  a  University  or  a  Washington's 
monument  associations,  would  be  easily  obviated, 
and  if  not,  he  thought  there  was  no  way  in  which 
the  Convention  would  better  perpetuate  the 
memory  of  this  great  and  grand  man,  than  by  en- 
grafting on  the  constitution  the  benign  principles 
for  which  he  and  his  compatriots  so  faithfully 
and  nobly  contended. 

Mr.  RICHMOND  said  he  did  not  rise  to  speak 
against  all  corporations.  He  believed  corpora- 
tions in  some  instances  were  both  necesssary  and 
useful,  but  he  did  not  believe  it  necessary  or  pro- 
per to  incorporate  companies  to  do  business  that 
could  be  carried  on  by  individual  enterprise.  He 
believed  the  chartering  of  companies  to  do  busi- 
ness calculated  to  come  directly  in  competition 
with  individual  enterprise  would  operate  most 
perniciously  upon  the  best  interests  of  the  great 
mass  of  the  citizens  of  this  state.  These  large 
companies,  b*  means  of  the  great  facilities  afford- 
ed by  their  consolidated  wealth  and  the  special 
privileges  given  them  by  their  charters,  would  be 
able  to  put  down  all  individual  competition,  and 
in  the  end  there  was  great  danger  of  their  becom- 
ing in  reality,  what  they  have  so  often  been  called, 
monopolies  of  the  most  odious  kind.  He  believ- 
ed in  the  doctrines  put  forth  by  Daniel  D.  Tomp- 


973 


kins  while  Governor  of  this  state  :•  that  these  cor- 
porate bodies  should  be  kept  within  the  control 
of  the  Legislature,  as  there  was  great  danger  of 
their  becoming  formidable  and  oppressive,  as  they 
increased  in  numbers  and  in  power.  There 
seemed  to  be  a  disposition  on  the  part  of  s«me 
to  give  increased  facilities  for  procuring  these 
charters.  He  did  not  believe  this  necessary,  as 
more  than  half  the  time  of  the  Legislature,  while 
in  session,  is  spent  in  reference  to  these  applica- 
tions, either  for  new  charters  or  for  an  increase 
of  the  powers  of  old  ones.  The  result  of  all  this 
is,  that  laws  of  a  general  nature  such  as  are  for 
the  benefit  ol  the  whole  people,  are  left  unac  ed 
upon,  as  they  are  jumped  over  and  overridden  by 
these  combinations  who  always  have  their  agents 
in  the  lobby,  who  are  pushing  them  forward  with 
Railroad  speed.  He  said  he  believed  a  general 
law  under  which  these  companies  might  be  organ- 
ized, would  do  much  to  divest  them  of  their  mo- 
nopoly character,  and  would  do  much  to  preserve 
the  purity  of  Legislation.  The  gentleman  from 
New- York  (Mr.  O'Comm)  has  just  told  ua  that 
it  might  be  thought  necessary  for  the  adv^hce- 
tnent  of  common  school  education,  to  incorporate 
a  great  institution  to  be  called  a  university,  to 
have  the  particular  charge  and  direction  of  schools 
of  this  kind.  Mr.  R.  said  he  would  not  so  par- 
ticularly notice  this  remark  at  this  time  had  he 
not  noticed  in  various  quarters  out  of  this  Con- 
vention, a  disposition  on  the  part  of  some  to  build 
up  a  great  central  power  at  the  Capitol  or  some 
other  place,  to  take  charge  of  this  whole  subject, 
manage  the  funds  and  say  who  might  and  who 
might  not  be  a  teacher  in  common  schools.  This, 
he  said  would  be  a  splendid  power,  and  would  af- 
ford fine  pickings  out  of  the  funds  as  well  as  an 
excellent  chance  for  doling  out  special  privileges 
to  particular  favorites.  He  would  say  that  he  did 
not  believe  that  any  schemes  of  this  kind  would 
work  ;  the  people  were  awake  on  the  subject  of 
education  and  they  knew  that  they  were  capable 
of  managing  this  matter  themselves,  and  the  dif- 
ferent towns  in  the  state  were  abundantly  capable 
of  electing  men  competent  to  say  who  was  and 
and  who  was  not  capable  of  teaching  their  schools. 
Gentlemen  must  remember  that  the  policy  of  the 
day  was  against  consolidation  ;  the  people  had 
declared  against  central  power  and  had  demanded 
a  return  to  them  of  a  large  portion  of  the  powers 
heretofore  exercised  by  the  office  holders  congre- 
gated about  the  Capitol,  and  this  Convention,  so 
far  as  we  have  gone,  have  manifested  their  deter- 
mination to  carry  out  this  principal  in  accordance 
with  their  views.  The  cause  of  education  was 
one  that  was  uppermost  in  the  minds  of  the  peo- 
ple, and  so  long  as  it  remained  so  it  was  safer 
than  in  the  hands  of  any  aspiring  office  hunters, 
whose  great  object  is  the  spoils 

Mr.  DANA  had  no  objection  to  the  amendment 
of  the  section  as  reported,  But  if  any  thing  was  to 
be  accomplished  here,  it  was  only  by  confining 
ourselves  more  strictly  to  the  question  at  issue.— 
He  asked  for  the  previous  question  on  the  amend- 
ment of  Mr.  VAN  SCHOONHOVEN. 

There  was  a  second,  and  the  main  question  or- 
dered. 

The  amendment  of  Mr.  V.  S.  was  rejected. 

Mr.  LOOMIS  moved  the  amendment  he  had 
indicated  by  adding  after  the  word  "  privileges" 


in  the  second  line,  the  following,  "  except  as 
otherwise  provided  in  this  article." 

Mr.  JORDAN  moved  to  insert  the  word  "such" 
after  the  word  "  all"  in  the  fifth  line,  so  as  to 
make  future  laws  applicable  to  future  corpora- 
tions, because  there  were  some  corporations  now 
existing  which  were  not  under  the  control  of  the 
legislature.  He  was  willing  to  vote  for  the  sec- 
tion thus  amended. 

The  CHAIR  suggested  that  the  amendment  was 
not  now  in  order. 

Mr.  MORRIS  was  in  the  very  broadest  practi- 
cal acceptation  of  the  word  anti-corporation.  He 
believed  that  the  legislature  should  be  restricted 
from  granting  a  corporation  to  perform  any  of  the 
ordinary  business  of  life  now  transacted  by  indi- 
viduals or  voluntary  associations.  His  honest 
convictions  were  that  corporations  were  an  evil, 
except  in  cases  were  individuals  could  not  get 
along.  His  objection  to  the  section  was,  that 
under  it  the  legislature  might  pass  general  laws 
authorising  individuals  to  incorporate  themselves 
for  the  transaction  of  any  business  whatever. 

Mr.  STETSON  alluded  to  the  conflicting  views 
which  existed  in  the  Convention  on  this  subject, 
and  feared  that  it  would  result  in  preventing  any 
action  on  the  subject.  He  regarded  the  gentle- 
man from  New-York,  as  having  taken  a  position 
so  entirely  radical  as  to  render  the  vote  wholly 
impracticable  for  practical  purposes.  There  were 
a  variety  of  matters  of  business,  which,  from  the 
vast  capital  required,  would  be  impossible  to  be 
carried  into  operation  without  a  corporation. — 
He  would  retain  no  power  in  the  legislature, 
however,  to  grant  especial  privileges.  He  thought 
the  section  as  reported  by  the  committee,  to  be 
the  most  wise  and  adequate  for  the  purpose  in- 
tended. It  would  relieve  the  legislature  from  the 
constant  teazing  they  were  obliged  to  undergo, 
for  these  especial  grants. 

Mr.  STEPHENS  hoped  that  this  important  * 
matter  might  be  brought  to  as  satisfactory  a  con- 
clusion as  the  Finance  Question.  He  thought  no 
reform  would  be  attained  unless  the  Legi^latuie 
should  be  wholly  deprived  of  the  power  to  grant 
corporations  of  this  character  He  objected  to 
the  provision  in  the  article  which  made  the  share 
holders  individually  liable  for  the  debts  of  these 
associations  only  for  the  ner  cent  on  their  interest. 
It  would  go  to  break  up  all  partnerships  where 
men  were  personally  responsible  to  the  full  amount 
of  the  debt. 

The  question  was  taken  on  the  amendment  of 
Mr.  LOOMIS,  and  it  was  adopted. 

Mr.  JORDAN  withdrew  his  amendment. 

The  qnes'ion  was  then  on  the  amendment  of 
Mr  O'CONOR. 

Mr.  PERKINS  could  not  perceive  that  the  dif- 
ficulties suggested  in  relari(in  to  the  franchise  of 
the  right  of  way  was  obviated  by  this  amendment. 

Mr.  O'CONOR  said  that  it  only  provided  against 
special  acts.  It  did  not  prevent  the  granting  to 
an  association  the  right  of  way  or  of  eminent  do- 
main. 

Mr.  PERKINS:  Under  that  section  could  the 
Legislature  regulate  the  rates  of  fare  on  the  several 
roads  ? 

Mr.  O'CONOR  certainly. 

Mr.  PERKINS  was  not  so  clear  about  that. 


974 


Mr.  WHITE  moved  to  strike  out  the  words 
"  not  inconsistent  with  this  constitution"  which 
he  considered  surplusage.  He  did  not  suppose 
that  the  legislature  could  pass  any  act  inconsistent 
with  the  constitution. 

Mr.  RUSSELL  did  not  consider  this  language 
as  a  surplusage. 

Mr.  LOOMIS  explained  that  the  object  was  to 
prevent  the  possibility  of  any  misconstruction. 

Mr.  WHITE  withdrew  his  amendment. 

Mr.  JORDAN  proposed  to  add  to  the  end  of  the 
section  the  words  "  or  with  the  provisions  of  any 
charter  heretofore  granted."  He  did  not  wish  to 
prevent  the  legislature  from  passing  laws  which 
operated  on  such  incorporations  if  they  did  not 
interfere  with  their  chartered  rights. 

Mr.  SIMMONS  would  be  gratified  if  he  could  as- 
sent to  any  proposition  coming  from  the  gentleman 
from  Columbia.  This  section  did  not  propose  to 
alter  any  charter  now  existing,  but  to  make  them 
subject  to  all  laws  which  should  affect  individu- 
als. If  those  charters  are  existing  contracts,  nei- 
ther this  constitution  nor  laws  passed  under  it 
could  violate  those  contracts.  If  they  were  not 
contracts  then  they  should  be  subject  to  all  gene- 
ral laws  that  might  be  passed — not  special  laws 
applying  especially  to  them. 

Mr.  JORDAN  further  urged  his  amendment. — 
He  desired  to  guard  against  any  infringement  of 
what  he  considered  to  be  the  plighted  faith  of  the 
state,  with  reference  to  corporations  already  ex- 
isting. 

The  debate  was  continued  by  Mr.  TILDEN. — 
He  held  that  the  legislature  could  grant  no  cor- 
porate power  or  privilege  which  it  had  not  the 
right  to  revoke.  He  admitted  that  the  legislature 
could  not  divest  the  corporators  of  the  right  of 
property. 

Mr.  JORDAN  replied,  and  after  some  further 
conversation 

Mr.  JORDAN  withdrew  the  pending  amend- 
ment, and  substituted  the  one  previously  with- 
drawn, and  it  was  adopted. 

Mr.  RUSSELL  called  for  the  previous  question, 
and  there  was  a  second,  and  the  main  question 
ordered. 

The  question  was  then  taken  on  the  amend- 
ment of  Mr.  O'CONOR,  and  there  were  ayes  31, 
nays 64,  as  follows: — 

AYES— Messrs.  Allen,  Archer,  Ay rault,  F.  F.  Backus. 
Brayton,  Bruce,  Candee,  Cook,  Dodd,  Gebhard,  Gmham, 
Harris,  Kirkland,  Marvin,  Miller,  Nicholas,  O'Couor, 
Parish,  Patterson,  Penniman,  Porter,  Rhoades,  >haw, 
Simmons,  E.  Spencer,  Stow,  Stiong,  Taggart,  V\  hite,  A. 
Wright,  Young— 31. 

NOES— Messrs.  Bergen,  Bowdi^h,  Brundage,  Bull, 
Cambreleng,  Chatfield,  Clark,  Clyde,  Conely,  Cornell, 
Cryoker,  Cuddeback,  Dana,  Dantoith,  Dubois,  Flanders, 
Greene,  Hart,  Hawley,  Hotchkiss,  Hunt,  Hunter,  A. 
Huritington,  Hyde,  Jon*  s,  Jordan,  Reman,  Kingsley, 
Loomis,  Mann,  McNeil,  McNitt,  Maxwell,  Morris,  Nellis, 
Nicoii.Powers,  President,  Hiker,  Russell,St.John,San:ord, 
Sears,  Sheldon,  Suepard.  smith,  W.  ts.  ispenct:r,8tephen-, 
Stetson,  Swackhamer,  Taft,  W.  Taylor,  Tilden.Townsend, 
Tuthill,  Vache,  Van  Schoonhoven,  Ward,  Waterlmry. 
Willard,  Witbeck,  Wood,  W.B.  Wright,  Yawger,  Youngs 

So  the  amendment  was  rejected. 

Mr.  MORRIS  called  tor  a  division  of  the  ques- 
tion, so  as  to  lake  the  vote  separately  on  the  first 
part  of  the  section,  absolutely  forbidding  the  pas- 
sage of  special  laws  creating  incorporations,  or 
granting  to  them  txclusive  privileges. 


The  CHAIR  decided  the  motion  to  t  e  out  of 
order,  the  previous  question  having  been  ordered. 

Alter  some  conveisation  on  the  point  ot  order, 

Mr.  MORRIS  withdrew  his  request  tor  a  divi- 
sion of  the  section. 

The  section  was  adopted— ayes  65,  nays  33 — as 
follows : 

AYES— Messrs.  Allen,  Bergen,  Bowdish,  Brundace 
Cambreleng,  R.  Campbell,  jr.,  Chatfield,  Clark,  Clyde, 
Conely,  Cook,  Cornell,  Cuddeback,  Dana,  Danlorth,  Du- 
bois,  inlanders,  Gebhard,  Greene,  Hotchkiss,  Hunt.  Hun- 
ter, A.  Huntingtpn,  Hyde,  Jones,  Jordan,  Kemble,  Kernan, 
Kingsley,  Loomis,  Mann,  McNeil  McNitt,  Maxwell,  Nel- 
lis, iNicoll,  Perkins,  Porter,  Powers,  President,  Riker,  Rus- 
sell, St  John,  Sanford,  Sears,  Sheldon,  Shepard,  Smith, 
W.  H.  Spencer,  Stephens,  Stetson,  Swackhamer,  Tail,  W. 
Taylor,  Tilden.  Townsend,  Tuthill,  Vache,  Ward,  Water- 
bury,  White,  Wood,  W.  B.  Wright,  Yawger,  Youngs— 65. 

NAYS— Messrs.  A'cher,  Ayrault,  F.  F.  Backus,  Bascom, 
Brayton,  Bruce,  Burr,  Canoee,  Chamberlain,  Dodd,  Gra- 
ham, Harris,  Kirkland,  Marvin,  Miller,  Nicholas,  O'Con- 
or,  Parish,  Patteison,  Penniman.Rhoades, Richmond, Shaw, 
Simmons,  E.  Spencer,  Stow,  Strong, Taggart,  Van  Schoon- 
hoven,  Willard,  Witbeck,A.  Wright,  Young— 33. 

Mr.  RICHMOND  offered  the  following  as  the 
second  Action: 

fj  2.  No  laws  shall  ever  be  passed  granting  lo  corpora, 
tions  or  associations  the  right  to  take  or  use  private  pro- 
perty for  corporation  or  other  purposes,  without  the  con- 
sent of  the  owner,  or  owners  of  such  propeity. 

The  question  being  taken,  the  amendment  wa9 
rejected,  ayes  9,  nays  71. 

Mr.  RHOADES  "ottered  the  following  as  the 
second  section  : 

§  2.  The  legislature  may  after  the  formation  of  any  cor- 
poration, confer  by  law  such  powers  and  privileges  as 
may  be  necessary  for  carrying  out  the  object  ol  such  cor- 
poration, not  provided  for  by  such  general  law. 

Mr.  AYRAULT  moved  to  amend  by  adding— 
"  other  than  banking,  trading,  or  manufacturing," 
after  the  word."  corporation'" 

Mr.  RHOADES  accepted  the  amendment. 

Mr.  TILDEN  said  that  the  object  of  the  amend- 
ment could  be  attained  under  the  first  section. 

Mr.  BERGEN  asked  (or  the  previous  question, 
and  there  was  a  second  and  the  main  question  or- 
dered 

The  question  was  then  taken  on  the  amend- 
ment of  Mr.  RHOADES,  and  it  was  rejected. 
Ayes  25,  nays  52. 

The  second  section  was  then  read,  as  follows  ; 
^  2  Every  corporation  for  purposes  of  gain  or  benefit  to 
the  corporators  or  share-owntrs,  shall  cause  the  names  of 
all  its  stockholders  and  officers,  and  the  places  of  their  re- 
sidence, and  an  estimate  of  the  value  of  its  property,  es- 
timated and  appraised  as  the  legislature  shall  by  law  direct, 
and  the  aggregate  amount  of  all  its  debts  and  liabilities 
absolute  and  contingent,  to  be  published  at  stated  periods 
as  often  as  once  in  each  year,  in  a  newspaper  published  in 
the  vicinity  of  its  place  of  business.  And  any  such  corpo- 
ration shall  not  become  indebted  to  an  amount  greater 
than  its  capital  stock  actually  paid  in,  together  with  the 
undivided  net  prolits  thereon  invested  and  employed  in  the 
business  of  such  corpoiation,  or  actually  on  hand  in  cash 
or  good  securities  for  such  purpose.  But  this  shall  not  be 
construed  to  limit  the  hazards  of  any  insurance  company. 

Mr.  LOOMIS  briefly  ^explained  the  section. 

Mr.  CAMBRELENG  urged  that  this  matter 
was  more  strictly  one  of  legislation,  and  he  would 
therefore  move  to  strike  out  the  section. 

This  was  agreed  to. 

The  third  section  was  read  as  follows  : 

\  3.  Every  corporator  or  share-owner  in  any  incorpora- 
tion for  gain  or  benefit  to  the  corporators  or  shareholders, 
except  insurance,  and  except  for  purposes  specified  in  the 
next  section,  in  case  such  corporation  shall  become  insol- 
vent, shall  be  liable  ior  the  unsatisfied  debts  and  liabilities 


975 


ot  such  corpoiation  contracted  while  he  was  such  corpo- 
rator or  sh:tre  owner,  'to  Hn  amount  to  the  same  pro;  or 
tion  to  tin-  whole  unsati>tie<l  natalities,  that  his  siock  or 
sha  e  shall  bear  to  the  whole  stock.  But  such  personal  li- 
ability  .shall  not  extend  to  sjny  indebtedness  or  liability, the 
payment  01  which  shall  have  been  deferred  more  than  one 
year  t>y  contract  with  the  creditor,  or  which  shull  *ot 
have  been  demanded  by  suit  within  one  year  alter  it  be- 
comes duo. 

Mr.  PATTERSON  moved  to  strike  it  out,  as 
being  purely  legislative. 

Mr.  RUSSELL  moved  to  amend  the  first  line 
by  inserting  the  words  "  hereafter  created,"  after 
the  word  "  incorporation."  Agreed  to. 

Mr.  PERKIiNS  opposed  the  motion  urstrike  out 
the  section.  He  considered  thai,  by  adopting  that 
motion,  the  benefits  derived  from  the  section  adopt- 
ed, would  be  entirely  neutralized. 

Mr.  TUTH1LL  moved  to  strike  out  all  between 
the  words  "shareholders"  in  the2i1  line  and"  insolv- 
ent'' in  the  4;h  line  :  also  from  the  word  "  shure- 
owner"  in  the  6ih  line  and  "  stock"  in  the  bth  ; 
also  the  words  "  by  suit'5  in  the  last  line. 

The  Convention  then  took  a  recess. 

AFTERNOON  SESSION. 

No  quorum  present. 

The  roll  was  called,  and  a  little  before  4. o'clock 
65  members  answered. 

The  question  was  on  striking  cut  "  insurance 
companies"  from  the  3d  section,  on  motion  ol 
Mr.  TUTHILL. 

Mr.  MANN  said  that  he  was  in  favor  of  the 
amendment  proposed  by  the  gentleman  from 
Orange,  at  all  events  the  first  division  of  it.  The 
bank-«,  as  corporations,  receive  their  incomes  and 
premiums  frotu  the  notes  they  discount,  or  their 
promises  to  pay.  The  ri«k  the  banks  run  in  theii 
transactions  and  discounts  is  that  which  may  oc- 
cur by  taking  bad  paper,  which  may  not  be  ulti- 
mately paid,  which  n-k  they  are  paid  tor-with  the 
use  of  their  monev.  How  is  it  with  the  insur- 
ance companies?  They  icceive  theii  incomes  and 
premiums  to  the  amount  of  millions,  in  small 
sums,  though  in  the  aggregate  to  very  large 
amounts,  and  they  receive  them  upon  their  own 
promises  to  pay.  You  pay  them  a  bonus,  for 
what  ?  lor  their  promises  to  pay  your  losses,  ii 
any  should  occur  under  your  policy.  They  bind 
the  company  or  the  stockholders  to  pav  according 
to  contract.  They  are  paid  tor  this  risk,  and  are 
bound  to  meet  Ihe  losses,  if  any  occur,  and  should 
be  made  to  meet  these  promises  to  pay,  it  a  con- 
tingency lequires  it.  He  was  in  tavor  of  putting 
these  incorporations  upon  the  same  tooting  with 
others  under  the  fiist  section  of  this  article,  and 
could  see  no  reason  why  they  should  be  excluded, 
and  hoped  the  amendment  would  prevail. 

Mr.  TOWNSEND  stated  that  the  proposition 
of.the  gentleman  from  Orange  (Mr.  TUTHILL) 
opened  the  whole  doctrine  of  the  liability  of  cor 
porations  and  associations — involving  as  it  did  a 
question  so  much  discussed  everywhere — but  here 
he  regretted  to  see  the  indifference  that  the  Con- 
vention exhibited,  when  a  proper  opportunity  was 
presented  for  its  consideration.  When  a  few  days 
since  he  had  the  honor  to  present  a  remonstrance 
against  this  principle  being  placed  in  the  consti- 
tution, from  a  number  of  the  merchants  of  the 
city  of  New  York  of  the  highest  respectability 
and  of  mixed  political  views,  he  took  occasion 


;o  state  that  from  the  reflection  that  he  had  given 
to  the  subject  he  believed  that  in  view  of  all  the 
circumstances  bearing  upon  the  case,  the  general 
good  would  be  best  promoted  by  engrafting  the 
principle  proposed  into  the  constitution.  Still  he 
was  open  to  conviction  on  argument  tending  to 
another  conclusion  and  limited  as  our  time  was, 
he  hoped  that  a  subject  so  important  would  draw 
out  at  least  some  views  from  gentlemen  able  to 
throw  instruction  and  light  before  us.  To  state 
very  generally  the  views  he  held  he  would  say 
that  the  point  raised  in  the  remonstrance,  he  had 
alluded  to,  as  to  the  tendency  of  the  measure  pro- 
posed to  produce  a  classification  of  shareholders 
in  future  associations  was  undoubtedly  a  strong 
one.  By  the  laws  at  present  existing,  an  Astor 
or  a  Whitney  might  associate  under  limited  res- 
ponsibility in  business,  institutions  that  were 
equally  open  to  the  investments  and  enterprize 
of  men  of  small  means.  Under  the  present  lia- 
bility clause  however  men  of  heavy  capitals  would 
only  consent  to  associate  with  those  who  brought 
a  similar  responsibility  to  themselves  into 
the  association,  and  theVe  could  no  doubt  for 
good  or  ill,  that  thereafter  the  classification 
alluded  to  in  the  remonstrance  would  pre- 
dominate among  the  stockholders  of  all  new 
associations.  This  was  a  question  upon 
which  he  had  directed  much  reflection.  We 
know  that  in  Great  Britain— a  country  peculiar- 
ly analagous  to  our  own  in  most  of  her  institu- 
tions affecting  government  and  business  matters 
— nearly  4000  banking-houses  and  their  branches 
were  now  operating  upon  full  personal  liabi- 
lity. The  Bank  of  England,  that  of  Ireland, 
and  one  or  two  in  Scotland,  were  the  only  insti- 
tutions of  a  banking  nature  operating  under  the 
principle  of  limited  liability  and  special  charters. 
If  the  business  community  of  that  country  had, 
after  long  experience,  settled  down  upon  the  in- 
dividual liability  principle  as  the  best  upon  which 
to  conduct  her  deposit,  banking  and  exchange 
transactions,  it  presented  a  strong  argument  in 
favor  of  introducing  the  principle  in  our  own 
laws.  The  provisions  as  to  publicity  of  situation 
involving  extent  of  liabilities,  names  of  share- 
holders, &c.,  proposed  by  the  second  section  of 
the  article  before  us,  which  section  has  been 
stricken  out  as  a  matter  of  legislative  action,  were 
found  in  the  statutes  of  Great  Britain,  and  should 
be  recognized  in  ours,  if  we  assimilate  the  for- 
mation of  our  institutions  of  this  character  to 
theirs.  The  principle  adopted  by  that  country 
in  1844,  r.  specting  paper  circulating  as  money, 
is  in  close  analogy  to  that  in  force  in  this  State 
since  the  year  1840,  upon  the  same  subject.  With 
some  limited  exceptions  as  to  institutions  having 
the  privilege  of  issuing  paper  as  money,  the 
whole  paper  circulation  of  Great  Britain  is  now 
based  upon  the  securities  of  the  government  debt 
held  by  the  Bank  of  England,  or  upon  an  equal 
deposite  of  bullion.  Thus  the  power  of  great 
flexibility  in  the  currency  of  that  country,  which 
has  often,  exposed  her  to  severe  financial  revul- 
sions, no  longer  exists.  The  fact  ot  the  coin- 
cidence in  the  matter  of  circulation  with  the  laws 
of  our  State,  ma\  be  explained  in  some  degree  by 
the  circumstance  that  the  opening  speech  of  Sir 
Robert  Peel  in  urging  the  reform,  treated  the 
subject  in  a  language  and  connection  so  analagous 


976 


to  that  used  in  the  reports  of  the  legislature  of 
this  State  from  the  currency  committee  of  the 
Assembly  in  1842,  as  to  evince  his  familiarity 
with,  and  acquiescence  in,  the  reasoning  and 
conclusions  of  those  reports.  Having  thus, 
as  i  have  shown,  given  to  that  great  com- 
mercial  nation  a  hint  which  she  has  adopted, 
with  reference  to  the  rnaiter  of  paper  circulating 
as  money,  may  we  not  perhaps  perceive  in  the 
operation  of  her  joint  stock  business  associations, 
principles  which'  we  may  with  advantage  place  in 
our  own  laws.  That  the  principle  of  personal  re- 
sponsibility would  draw  with  it  a  closer  circum- 
spection on  the  paitof  share  holders  of  er  the  ope- 
ration and  business  or  the  institutions  with  which 
they  are  connected,  there  can  be  no  doubt.  We 
can  readily  imagine  that  where  stock  holders  are 
personally  responsible,  they  wuuld  often  be  in- 
duced, by  an  additional  subscription,  ai  a  pecuni- 
ary crisis,  to  save  their  association  from  insolvency 
and  thus  the  interest  of  all  parties  be  better  se- 
cured. A  strong  illustration  of  this  principle  oc. 
curred,  some  years  since,  in  the  case  of  a  bank, 
in  this  city,  (the  Commercial)  where  even  the 
limited  responsibility  which  that  peculiar  char- 
ter contained,  urged  upon  the  directois  the 
necessity  of  coining  to  the  rescue  of  the  in- 
gtitution  in  their  private  resources,  in  a  manner 
that  has  secured  a  favor  to  the  principle  from  the 
success  and  public  confidence  that  has  subsequent- 
ly attended  that  particular  institution.  Some  gen- 
tlemen have  proposed  to  except  insurance  compa- 
nies from  the  provisions  of  liability  that  they  were 
willing  to  apply  to  banking  and  othei  business  as- 
sociations. Mr.  T.  did  nof  agree  with  them.  In- 
surance companies  were  foi mid  generally  upon 
the  same  desire  of  gain  that  all  other  pecuniary 
institutions  were;  and  there  was  no  ieason  why 
an  exception  should  be  made  in  their  favor.  For 
several  years,  m»ny  of  the  mutual  insurance  com- 
panies  of  the  slate  have  been  conducted  upon  a 
principle  nearly  allied  to  that  of  personal  respon- 
sibility ;  and  if  he  was  not  much  mistaken,  their 
share  holders  are  trequently  called  upon  t»  coniri 
bute  their  pro  rata  portion  of  losses  beyond  the 
means  that  may  be  at  the  moment  in  the  hands  o! 
the  officers  of  a  company.  A  gentleman  near  him 
stated  that  the  stockholders  of  theSaiatoga  Mutual 
Co.  had  been  called  upon  to  contribute  as  otten  ai 
least  as  at  three  different  times.  Should  the  mu- 
nicipal corporations  ot  the  state  exercise  the  pow- 
er that  they  probably  possess,  of  considering  the 
prevention  <>f  fires  as  purely  a  police  matter 
then  they  may  with  propriety  impose  a  tax  to 
return  losses  by  tire,  which  ate  a  consequence 
in  most  cases  of  the  imperfections  of  their  own 
police  regulations— and  thus  render  unnecessary 
the  organization  of  any  insurance  companies.— 
Insurance  of  any  nature  was  .'fter  all  nothing  but 
a  wager.  The  insured  wagers  the  insurer  1  to 
200— (or  any  other  proportion  that  the  peculiar 
circumstances  warrant)— that  his  property  will 
not  be  destroyed  by  fire,  the  elements  or  ene- 
mies At  the  close  of  the  last,  and  for  a  conside- 
rable period  in  the  present  century,  all  marine 
risks  in  the  city  of  New  York  were  secured  and 
guarantied  by  private  persons.  A  class  of  indi- 
•  viduals  of  known  pecuniary  responsibility,  were 
alwavs  ready  to  take  the  hazard  of  a  marine  loss ; 
and  no  difficulty  was  then  experienced  in  having 


the  most  valuable  India  cargo  insured  by  the  pri- 
vate underraters,  each  taking  a  risk  presumed 
equal  to  his  own  ability  to  discharge  the  obliga- 
tions he  undertook.  Most  of  the  marine  insu- 
rance of  the  commercial  metropolis  of  the  world 
is  now  conducted  upon  the  plan  of  individual  re- 
sponsibility ;  and  the  fame  of  "  Loyd's  Lists," — 
(connected  with  this  peculiar  mode  of  insurance) 
is  as  wide  spread  as  the  range  of  the  commerce 
which  it  registered.  From  considerations,  aris- 
ing in  these  facts,  Mr.  T.  was  not  disposed  to 
look  with  the  alarm  upon  the  proposition  of  at- 
taching the  personal  responsibility  clause  to  our 
business  associations,  that  many  appeared  to  feel. 
He  was  persuaded,  that  the  proposition  had  many 
characteristics  to  commend  it ;  yet  he  was  free  to 
admit,  as  he  had  before  stated,  that  it  was  a  grave 
question,  and  one  upon  which  he  was  yet  open  to 
the  effects  of  a  full  discussion  of  the  principles 
that  it  involved.  The  limited  or  special  part- 
nership act,  which  had  existed  for  fifteen  years 
in  this  State,  presented  a  means  through  which 
men  of  enterprise  and  business  experience  could 
draw  around  them  the  capital  of  others,  without 
involving  the  full  responsibility  of  a  partnership, 
and  undoubtedly  the  adoption  of  the  amendment 
proposed,  would  repudiate  in  a  considerable  ex- 
tent, what  had  been  open  to  the  public  under 
that  law.  He  had  risen  without  premeditation 
or  preparation,  rather  than  a  question  of  this  im- 
portance, and  one  upon  which  so  much  had  been 
said  among  the  press  and  people,  should  be  pass- 
ed upon  here  in  silence,  and  he  hoped  that  the 
discussion  would  be  fully  entered  upon. 

Mr    MARVIN   supposed  that  the  gentleman 
(Mr.  TOWNSEND)  was  opposed  to  the  proposition. 
Mr.  TOWN  SEND  :    No,  sir,  I  am  in  favor  of 
it.     [Much  laughter.] 

Mr.  MARVIN  said  that  the  whole  drift  of  the 
gentleman's  argument  was  in  opposition  to  it. 

Mr.  TOWNSEND  :  When  the  ayes  and  noes 
are  called,  I  am  perfectly  ready  to  define  my  po- 
siti^n  without  walking  out  like  some  gentlemen. 
Mr.  MARVIN  said  he  was  in  favor  of  striking 
out,  but  was  opposed  to  the  whole  section.  He 
was  in  favor  of  these  stockholders  being  render- 
ed personally  liable  ;  for  they  put  their  money 
into  these  companies  for  the  sake  of  the  gain. 
He  related  an  anecdote  about  a  poor  blacksmith 
who  made  a  valuable  invention  ;  but  who  had  no 
money  to  put  into  extensive  operations.  Some 
large  capitalists  on  being  made  acquainted  with 
the  invention,  were  willing  to  risk  a  certain 
amount  of  capital  in  a  fair  experiment  of  manu- 
facturing the  article,  but  these  same  capitalists 
were  unwilling  to  become  partners  and  to  become 
personally  liable  beyond  the  amount  they  should 
advance.  An  application  was  made  by  the  smith 
for  a  charter,  and  the  doctrine  of  personal  liabil- 
ity was  insisted  upon,  which  he  knew  would  be 
death  to  the  application,  and  would  in  fact  pre- 
vent an  advance  of  capital  from  the  surest  of  his 
friends.  The  eftect  would  have  been  that  this 
poor  blacksmith  would  have  been  placed  entire- 
ly in  the  power  of  the  wealthy  capitalists  and 
they  could  have  controlled  his  labor  and  would 
probably  have  availed  themselves  of  his  invention 
and  skill,  and  thus  the  poor  man  would  have  been 
a  hewer  of  wood  and  a  drawer  of  water  to  the 
rich.  If  you  continued  this  system  of  individual 


977 


liability  you  would  drive  small  capitalists  away 

Mr.  LOOMIS  said  that  it  would  throw  these 

from  these  investments,  and  none  but  your  John 

•nrporations  into  two  classes  exclusively,  the  ex- 

J. Astors  would  have  any  control  of  this  matter. 

clusively  rich  and  the  exclusively  poor.  He  knew 

If  that  was  democracy,  to  enrich  the  rich  against 

a  company  that  once  nearly  failed",  and  would  have 

the  poor,  then  he  wished  to  have  nothing.  to  do 

failed  but  for  the  individual  liability  clause,  which 

with  it. 

made  all  the  stockholders  liable;  and  they  went 

Mr.  LOOMIS  would   explain.     He  would  ex- 

to work,  contributed  each  something  to  help  the 

cept  insurance   companies,    because  their   losses 

concern,  and  it  is  now  a  flourishing  and   valuable 

were  the  result  of  accident  or  misfortune,  and  not 

company.     If  it  had  not  been  for  this  clause  they 

of  design  or  of  speculation  j  and  it  would  be  very 

would  have  sold  out  their  stock  to  the  first  beggai 

unjust  to  do  this;  no  stockholder  could    He  down 

they  met  in  the   street.     These  were  the  reasons 

at  night,  certain  he  would  not   wake  up  a  beggar 

that  actuated  the  committee  in  reporting  this 

in  the  morning.     And  at  this  rale  insurance  stock 

section. 

would  be  poison  ;  no  one  would  touch  it.     If  cor- 

Mr. MARVIN  replied  that  if  the  Convention 

porations  ought  not  to  exist,   and  if  the   design 

had  listened  to  the  gentleman's   argument,  thej 

was  to  prevent  them   from    being   formed,   there 

must  be  satisfied  that  if  it  was  impolitic  to  make 

could  be  ne  more  effectual  mode  of  doing  it  lhan 

shareholders  responsible   to  the  fullest  extent,  i 

by  making  every  stockholder  uersonally  responsi- 

was equally  impolitic  to  make  them  liable   to  •< 

ble  to  the  fullest  extent.     But  if,  as  he   believed, 

partial  extent  —  but  that  if  to  a  partial  or  to  the 

these  corporations  were  salutary  in    their   opera- 

full extent,  it  was  entirely  a  matter  of  legislative 

tions,   within  certain  limits,   and  if  we  designed 

detail  and  discretion  which  did  not  belong  to  i 

that  they  should  continue  to  exist,  we  should    be 

constitution.     In  some  cases  this  personal  liability 

cautious  that  we  did  not  by  an  indirect  blow,  an- 

to a  limited  extent,   might  work  well  and   soim 

nihilate  them.     VVe  should  take  care  also  to   dis- 

corporations might  be    willing  to  submit  to  it— 

criminate  between  the   classes  of  corporations  in 

but  in  other  cases   it  might  operate  badly.    'H 

the  application  of  this  principle.     Insurance  com- 

could not  foresee  the  operation  of  it  in  all  cases 

panies,  the  committee  'thought,  were  nroper  sub- 

and nothing  could  be  more   unwise  than  to  bine 

jects  of  an  entire   exemption,  and  for  the   reason 

down  the  legislature  by  a  rule,  which  it  might  b 

that  their  losses  were  the  result  of  accident  or  ca- 

impracticable to   carry   out.     But  be   this   as   i 

lamity  which  no  human  foresight  could  anticipate 

might,  the  effect  of  such  a   principle  would  b 

or  guard  against,  but  which  often  annihilated  im- 

obviously to  throw  all  these   corporations  eithe 

mense  amounts  of  property.     The  losses  of  other 

into  the  hands  of  large   capitalists   or  into  th 

companies  resulted  rather  from   mismanagement, 

hands  of  men  of  straw  ;  and  either  result  must  b 

or  from  a  desire  for  excessive  gain,  from  large  and 

mischievous.     It  was  true  that  these  corporation 

ill-judged  adventures,  when  the  company  willing. 
ly  incurred    the  hazard,  for  the  sake  of  the  gain, 

sometimes  failed  —  perhaps  often  —  but  were  the 
the  only  things  that  failed  ?     Did   not  the   mer 

and  ought  to  abide  the  losses.     But  if  the   stock- 

chant sometimes  fail  and  involve  his   creditors  ii 

holders  in  insurance  companies  were  to  be   made 

heavy  losses  ?     And  were  these  natural   person 

individually   liable,  no  man  would  hold  stock   in 

liable  to  this  extent  beyond  their   property,  or  t 

them  one  moment.  No  stockholder  could  lay  his 
head  on  his  pillow  without  apprehension  that  he 
might  wake  up  in  the  morning  beggared  by  one 
of  those  devastating  calamities  that  sometimes 
lay  waste  your  cities  and  large  villages.  There 
was  also  reason  for  exempting  railroads  and  other 
companies  having  the  right  of  way.  Their  capi- 
tal was  generally  large,  and  held  in  large  amounts 
by  individuals,  and  to  make  them  individually  li- 
able, even  to  the  extent  of  their  stock,  might  over- 
whelm them  in  ruin.  Again,  when  borrowers, 
these  companies  loaned  large  sums  from  capital- 
ists who  alwa\s  could  and  would  see  to  their  own 
security,  either  in  the  proper  management  of  the 
company's  concerns,  or  in  the  intrinsic  value  of 
the  improvement,  01  by  the  liens  on  the  materials 
or  fixtures.  Their  capital  was,  in  fact  nearly  all 
laid  out  in  fixtures,  and  these  large  capitalists  who 
loaned  them  money  would  always  take  care  of 
themselves.  But  the  small  class  of  creditors, 
those  who  labored  on  the  road,  and  who  were  em- 
ployed  by  them  in  various  capacities,  these  this 
article  proposed  to  secure  by  the  personal  liability 
of  the  stockholders. 

Mr.  WHITE  asked  Mr.  LOOMIS  whether  the 
provision  exempting  insurance  companies  from 
tlu-.  operation  of  the  general  law  providing  for  the 
liability  of  all  corporations  was  not  in  direct  con- 
flict with  the  first  section  of  this  article,  which 
declared  that  there  should  be  no  exclusive  privi- 
Jeges. 

97 


any  extent  ?  Why  should  an  artificial  person  be 
iable  to  any  greater  extent  than  its  capital?  Why 
should  not  the  public  be  left  to  deal  with  them 
on  the  credit  of  their  capital,  and  on  the  integrity 
of  those  who  managed  it  ? 

Mr.  WATERBURY  said  that  expost  facto  laws 
were  actually  dishonest ;  and  if  you  did  not  hold 
aws  to  an  honest  liability  you  would  injure 
community  instead  of  bettering  it. 

Mr.  VAN  SCHOONHOVEN  said  that  Mr. 
LOOMIS  had  got  all  his  ideas  on  this  subject  from 
Kent  and  others  on  Incorporations ;  but  he  had 
not  studied  Kent  far  enough  or  else  not  under- 
stood him.  One  of  the  objects  for  incorporating 
associations  was  to  bring  private  capital  into  uses 
for  the  public  benefit ;  this  would  be  accomplish- 
ed only  to  any  considerable  extent,  by  authorizing 
citizens  of  moderate  means  to  contribute  to  a  lim- 
ited extent,  and  increase  responsibility  which 
might  be  previously  defined. 

Mr.  NICOLL  said,  that  had  the  Convention  ta- 
ken the  time  spent  upon  the  consideration  of  this 
subject  to  perfect  a  provision  securing  to  the  cre- 
ditor a  fair  and  equal  distribution  of  the  estates 
of  individual  insolvents,  he  believed  their  labors 
would  have  been  of  some  service  to  the  commu- 
nity. The  earnest  desire  manifested  to  protect 
the  creditors  of  corporations  induced  him  to  hope 
that  something  would  yet  be  done  for  creditors 
generally.  Their  situation,  although  they  ,had 
the  benefit  of  the  unlimited  responsibility  of  ftie 


978 


debtor,  was  a  hard  one.     In  the  large  majority  of 
cases  of  individual  insolvency  the  interest  of  the 
great  body  of  creditors  were  sacrificed  to  protect 
a  few  whose  liabilities  consisted'  in  lending  their 
money  or  their  name,  and  thereby  giving  a  ficti- 
tious credit  to  the   debtor.     This  was  a  real  and 
oppressive  evil,  the   effects  of  which  were  daily 
felt  by  all  our  trading  communities.     As  the  tide 
whicirhad  been  so  long  running  in  favor  of  the 
debtor  interest  seemed   to   be  turning,  he  hoped 
the  Convention  would  not  confine  their  attention 
to  a  single  class,  but  would  provide  for  all  credi- 
tors whether  of  corporations  or  individuals.     Mr. 
N.  asked  the  pardon  of  the  house  for  not  having 
spoken  more  directly  to  the  subject  under  consid- 
eration.    It  was  one,   however,   to  which  he  had 
given  some  little  reflection,  and  upon  which  he 
would  say  a  few  words.     The  advocates  of  the 
unlimited  liability  of  corporators  seemed  to  for- 
got that  there  had  existed  in  this  state  for  more 
than  fifteen  years,  a  system  of  limited  individual 
responsibility,   under  which,  in  our  commercial 
cities  at  least,  if  not  elsewhere,  a  vast  amount  of 
business  was  constantly  transacted.     He  alluded 
to  the  system  of  special  partnerships  first  enacted 
in  the  Revised  Statutes,  which   had  been  found 
highly  beneficial,   and  had   undoubtedly   attrac- 
ted to  mercantile  operations  a  large  amount  of 
capital     which    would     otherwise    have     been 
applied    to    different    purposes.       It   was    true 
there   was    a    marked  difference  between    spe- 
cial partnerships   and  corporations,  as  had  been 
correctly  stated  by   the  chairman  of  the  commit- 
tee (Mr.  LOOMIS).     Still,   however,  with  one  or 
two  additions  to  its  powers,  a  special   copartner- 
ship might  be  made  almost,  if  not  quite,  as  effi- 
cient and  useful   as  a  corporation.     All  that  he 
intended  to  advert  to  was  that  the  doctrine  of  in- 
dividual responsibility  had  been  long  recognized 
and  acted  upon  in  this  state.     If  it  was  proper  to 
be  applied  in  one  class  of  cases,   it  might  be  in 
another,   providing   no  principle   was   violated, 
particularly  if  in  doing  so  it  was  apparent  a  great 
benefit  could  be  attained.     That  benefit  was  plain. 
The  advantages  to  accrue  from  a  system  of  corpo- 
rations, under  which  every  person    might  be  as- 
sociated for  any  purpose,  and  with  a  liability  of  a 
limited  character  had  been  stated  by  the  chairman 
of  the  committee  with  his  usual  force  and  clearness. 
In  all  that  had  been  said  by  that  gentleman,  Mr. 
NICOLL  fully   concurred.     He   would  venture  to 
say,  that  in  his  opinion  the  monopoly  and  power 
of  wealth  could  only   be   successfully  combatted 
by  the  equalizing  principle   of  association.     De- 
ter   men  from  so  uniting,  throw   in  their   way 
unnecessary  and  unjust  embarrassments,   expose 
them  to  the  hazard  of  utter  ruin,  and  you  perpet- 
uate the  thraldom  of  the  money  power  and  give 
to  wealth    an    over    shadowing    influence.     He 
thought  the  committee  had  gone  the  proper  length 
in  this  matter ;  while  they   rejected   the   idea  ol 
unlimited  responsibility  as  unsound  and  as  calcu- 
lated to  prevent  association  and  to  drive  capita] 
away  from  the  State,  they  had  still   provided  foi 
the   corporators  liability  to  a  certain  extent.     In 
his  opinion  they  had  properly  proportioned  thai 
liability     with     the     extent     of    the     interest 
enjoyed.       This    was    a    safe     and    just    rule 
and   should  secure  in  all  share-holders  a   pro- 
per vigilance  and  attention  to  the  affairs  of  theii 


corporations.  Mr.  N.  said  a  great  triumph  had 
)een  gained  in  annihilating  special  privileges. — 
Henceforth  corporations  were  no  longer  fran- 
chises, but  simply  instruments  for  the  benefit  of 
society,  incapable  of  being  restricted  to  a  few. — 
[n  destroying  this  great  monopoly,  the  conven- 
tion had  done  infinite  good — they  had  taken  a 
great  step  towards  the  purification  of  the  legisla- 
"rire,  and  they  had  equally  provided  for  the  se- 
curity of  society.  Give  all  persons  the  power  of 
'ncorporating  themselves,  and  you  at  once  put  an 
end  to  that  fictitious  credit  now  extended  to  cor- 
porations, because  they  have  come  to  us  with  the 
:egislative  stamp  of  merit.  He  thought  in  estab- 
ishing  this  principle,  the  "great  points  had  been 
cained.  The  other  provisions  of  the  article  were 
ndeed  salutary,  but  they  were  of  secondary  im- 
portance compared  with  the  overthrow  of  a  mo- 
nopoly, under  which  so  much  abuse  had  taken 
olace  and  so  much  suffering  been  endured. 

Mr.  SWACKHAMER  moved  the  previous 
question.  It  was  seconded. 

The  ayes  and  noes  were  ordered  and  resulted, 
ayes  44,  noes  45. 

AYES— Messrs  Allen,  Archer,  Ayrault,  F.  F.  Backus, 
Bascom,  Brayton,  Bruce,  Burr,  Cambreleng.  Cardee, 
Chamberlain,  Cook,  Dpdd,  Lmbois,  Flanders,  Gebhard, 
Graham,  Harris,  Hotchkiss,  Mann,  Marvin,  Miller,  Morris, 
Nicholas,  Parish,  Patterson,  Penniman,  Kicbrnond,  Faker, 
St.  John,  Shaw,  W.  H.  Spencer,  Strong,  Swackhamer, 
Townsend,  Tuthill,  VanSchoonhoven,  Ward,  Waterburyr 
White,  Willard,  Witbeck,  W.  B.  Wright,  Yawger-44. 

NOES— Messrs.  Bergen,  Bowdish,  R.  Campbell,  jr., 
Clark,  Clyde,  Conely,  Cornell,  Dana^Danforth,  Gardiner, 
Greene,  Hart,  Hunt,  Hunter,  A.  Huntingdon,  Hyde,  Jor- 
dan, Kdmble,  Kernan,  Kingsley.,  Kirkland,  Loomis,  Me 
Neil,  McNitt,  Maxwell,  Murphy,  Nellis,  NicolJ,  O'Conor, 
Perkins,  Porter,  Powers,  Russell,  Sanlord,  Sears,  Sheldon, 
Shepard,  Stephens,  Stetson,  Talt,  Tallmadge,  Tilden, 
Wood,  Young,  Youngs— 45. 

This  vote  was  on  striking  out  "  except  insur- 
ance and  except  for  purposes  specified  in  the 
next  section  in  case  such  corporation  shall  be- 
come insolvent." 

The  question  was  then  taken  on  the  remainder 
of  Mr.  TUTHILL'S  amendment  on  striking  out  "  to 
an  amount  in  the  same  proportion  to  the  whole 
unsatisfied  liabilities,  that  his  stock  or  share  shall 
bear  to  the  whole  stock." 

The  ayes  and  noes  were  then  ordered  and  re- 
sulted, ayes,  Messrs.  BOWDISH,  FLANDERS, 
MANN,  SHAW,  TOWNSEND,  TUTHILL — 6 ;  noes 
81.  So  the  motion  was  lost. 

Mr.  WHITE  moved  to  strike  out  the  whole 
section,  and  on  that  he  asked  the  previous  ques- 
tion, but  withdrew  it  to  allow  Mr.  TILDEN  to  of- 
fer this  :  After  the  word  "  shareholder"  in  the 
6th  line  to  insert  "  at  least." 

This  was  almost  unanimously  voted  down. 

The  ayes  and  noes  were  then  ordered  on  the 
adoption  of  the  3d  section,  and  resulted,  ayes  49, 
noes  45. 

AYES — Messrs.  Bergen,  Bowdish,  Biundage,  D.  D. 
Campbell,  R.  Campbell,  jr.  Cl.irk,  Clyde,  Conely, Cornell, 
Cuddeback,  Dana,  Danlbrth,  Greene,  Hart,  Hotchkiss, 
Hunter,  A.  Huntington,  Hyde,  Jones,  Jordan,  Kernan, 
Kingslfy,  Loomis,  Mann,  McNeil,  Mc.vitt,  Maxwell,  Mor- 
ris, Nellis,  Nicoll,  O'Co  >or,  Perkins,  Powers,  President, 
Russsll,  St.  John,  Salisbury,  San  ord,  Sears,  Shaw,  Shel- 
don. Shep:ird.  Stephens,  Stetson,  Swackhamer,  '1  ait,  Til- 
den,  Yawger,  Youngs.— 49 

NOES -Messrs.  Allen,  Archer,  Ayrault,  F.  F.  Backus, 
Bascom,  Brayton,  Bruce.  Bull,  Burr,  Candee,  Chamber- 
lain, Cook,  Dodd,  Dubois,  Flanders,  Gardner,  Gebhard, 
Graham,  Harris,  Kirklaud,  Marvin,  Miller,  Nicholas,  Pa- 


979 


rish,  Patterson,  Penniman,  Porter,   Khoades,  Richmond, 

,  W.  H.  Spencer,  Strong,  Taggart,  Tallmadge,  Town. 

Tuthill,     Van    Schoonhoven,    Ward,    Waterbuiy, 

"White,  Wjllard,  Witbeck,  Wood,  W.  JJ.  Wright,  Young 

— 45. 

Mr.  AYRAULT  moved  a  reconsideration  of 
the  last  vote.  Laid  on  the  table. 

The  fourth  section  was  then  read : 
<j4.  Every  corporator  and  share-owner  in  any  corpora 
tiou  herealier  created  for  a  public  railway,  canal,  turn- 
pike, bridge,  pluiik-\vay,  or  other  franchise  of  public  way, 
or  for  any  telegraphic  or  other  means  of  communicating 
intelligence  for  public  use  shall  be  liable  for  the  debts  and 
liabilities  of  such  corporation  to  the  extent  provided  in 
the  last  preceding  section,  [except  as  to  debts  for  money 
borrowed,  for  land  purchased  or  taken  by  authority  of 
law,  or  for  iron  on  rail  roads.] 

Mr.  LOOMIS  said  this  was  intended  to  except 
some  things  not  txcepted  by  the  last  section  ;  the 
reasons  for  which  he  had  already  assigned.  Mo- 
ney borrowed  is  generally  lent  to  rail  roads  in  such 
large  sums  that  the  lender  does  it  with  his  eyes 
open,  and  knows  if  it  is  good  stock  or  not;  so  of 
land  bought;  the  sellers  are  all  on  the  spot,  make 
their  own  terms,  and  generally  get  paid  before 
hand  ;  50  of  rail  road  iron;  the  makers  of  it  deal 
to  so  treat  an  extent  that^  they  generally  secure 
themselvesithoroughly. 

Mr.  RICHMOND  wanted  to  know  why  this 
class  of  corporators  should  be  excluded  more  than 
manufacturing  companies  ? 

Mr.  RUSSELL  defended  the  section.  In  rail- 
roads the  whole  of  the  capital  is  expended  in  real 
estate  and  fixtures  ;  and  if  it  is  not  well  managed 
the  whole  world  knows  it.  He  thought  that  the 
queries  of  the  gentleman  from  Genesee  might  be 
answered  to  his  entire  satisfaction,  if  that  gentle- 
man really  desired  information  to  enable  him  to 
sustain  tho  article  under  consideration.  He  asks 
why  make  distinctions  between  the  individual 
shareholders  in  railroad  and  canal  corporations, 
and  those  in  banking  and  other  business  corpora- 
tions ?  Mr.  R.  could  well  see  that  the  chairman 
of  the  committee  was  right  in  confining  the  secu- 
rity of  creditors,  loaning  large  sums  of  money, 
selling  lands  and  iron  rails,  to  these  corporations, 
to  the  corporate  property  of  the  company,  whilst 
the  shareholders  might  be  liable  personally,  for 
other  debts  for  labor  and  ordinary  credits. 

Our  state  will  not  very  soon  undertake  to  con- 
struct new  canals,  railroads,  plank  roads,  or  Mc- 
Adain  roads.  Yet  many  sections  of  the  state  may 
require  some  of  these  improvements,  for  which 
companies  have  not  yet  been  formed.  Sound  pub- 
lic  policy  requires  that,  citizens  should  be  allow- 
ed to  construct  such  works  with  their  own  means 
aided  by  the  capital  of  individuals  not  locallv  in 
terested  in  these  projects.  It  would  be  unjustly 
onerous  upon  persons  engaging  in  such  compa- 
nies, to  impose  unnecessary  liabilities  and  restric- 
tions upon  them.  They  effect  a  public  benefit, 
often  at  pecuniary  hazard,  which  the  state  is  un- 
able, or  unwilling  to  perform,  but  is  willing  to 
entrust  to  their  charge.  By  the  provisions  of  the 
section,  debts  of  these  companies  for  money  bor- 
rowed, for  lands,  or  for  iron  rails,  shall  be  char- 
geable upon  the  corporate  property  only,  except 
by  express  agreement.  In  truth,  if  persons  choose 
to  lend  their  money  to  such  companies,  they  must 
look  to  their  own  security.  If  they  sell  land  or 
iron,  they  may  retain  their  lien  upon  the  land  or 
the  iron,  till  the  purchase  money  be  paid,  or 
stand  as  general  creditors  upon  corporate  assets. 


Nearly  the  entire  capital  of  these  companies  is 
invested  in  real  estate  and  permanent  fixtures. — 
Bad  officers  and  agents  cannot  squander  or  run 
away  with  the  money  thus  invested.  The  capital 
remains  secure  for  public  use,  if  not  for  individu. 
al  profit  to  stockholders.  But  unfaithful,  or  in- 
competent agenls  may  borrow  money  or  contract 
other  debts  against  the  company.  Is  it  desirable 
to  give  them  the  power  to  contract  such  debts 
upon  the  personal  liability  of  the  shareholders, 
many  of  whom  have  risked  their  share  of  the  capi- 
tal invested,  merely  to  aid  a  public  work  with 
little  hope  of  profitable  returns?  Mr.  R.  believ- 
ed it  would  be  bad  policy  to  induce  large  credits 
to  such  corporations,  by  holding  out  the  property 
of  all  the  stockholders  as  the  security.  If  the 
work  should  be  improvident,  or  certain  to  end  in 
ruin,  no  such  credits  should  be  given  to  it — if  a 
well  advised  and  beneficial  project,  for  which  capi- 
talists were  willing-  to  lend  their  money,  let  them 
ascertain  that  fact  and  look  to  their  own  security, 
as  they  doubtless  would  do.  Persons  selling  lands, 
or  rails,  could  rescue  liens  for  the  purchase  money 
in  the  sale.  Lands  taken  by  authority  of  law 
must  be  paid  for  before  used,  unless  the  owner 
chooses  voluntarily  to  waive  that  right.  Mr.  R. 
hoped  the  section  would  pass  as  reported. 

Mr.  DANA  said  that  the  n: embers  of  the  com- 
mittee, who  reported  this  article,  reserved  to  them- 
selves, respectively,  the  right  to  vote,  when  the 
subject  should  corne  before  the  Convention,  for  or 
against  any  of  its  provisions  or  sections.  As  a 
member  of  that  committee,  it  appeared  necessary 
that  he  should  say  this  much,  that  hig  vote  on  the 
proposed  amendment  might  not  ceem  to  involve 
him  in  an  inconsistency-  He  was  opposed  to  ex- 
cepting from  the  personal  liability,  debts  lor  bor- 
rowed money,  or  for  lands,  or  fur  iron.  It  was 
argued  by  some  gentlemen  that  such  debts  might 
be  secured  by  liens  on  the  rond  ;  and,  therefore, 
there  was  no  need,  of  the  exceptions,  as  to  such 
debts.  Mr.  D.  considered  this  argument  against 
the  amendment,  as  conclusive  in  its  favor.  If,as  hud 
been  asserted,  such  debts  may  be  secured  by  liens 
on  the  property  of  the  corporators,  .surely  the 
adoption  of  the  amendment  can  work  no  haim  to 
them.  He  was  in  fiivor  of  ihe  proposed  .unend- 
ment,  because  it  sirikes  out  an  odious  distinction 
in  security  for  debts.  No  such  distinctions  should 
be  made;  and  least  of  all  should  any  constitution- 
al provision  be  made,  recognizing  and  adopting  a 
principle,  so  flagrantly  at  war  with  all  just  views 
of  equal  rights.  H*  H/SO  proposed  to  strike  out 
the  words  "telegraphic  or  other,"  in  the  third 
line  of  the  section,  as  useless  <uid  unnecessary. 

Mr.  PATTERSON  asked,  would  not  a  manu- 
facturing company  also  expend  all  their  capital  in 
their  buildings  and  real  estate,  &c.,  and  can  they 
not  give  the  same  security  that  a  rail  road  compa- 
ny can  ?  Why  make  this  distinction  between 
these  two  classes  of  creditors  ?  He  could  see  no 
propriety  in  striking  out  those  words.  As  he  had 
voted  against  the  preceding  section,  he  could  not 
consistently  vote  to  strike  out  these  words.  But 
he  must  confess  lie  could  not  understand  the  dis- 
tinction drawn  by  the  gentleman  from  St.  Law- 
rence. He  says  a  railroad  company  will  invest 
large  amounts  of  money  in  the  building  of  their 
road,  and  this  will  be  abundant  security.  Will 
not  the  same  argument  apply  to  a  manufacturing 


980 


corporation?  Do  they  not  invest  laige  sums  in 
the  erection  of  a  building  and  machinery? — 
Where  then  the  difference?  Mr.  P.  held  that  the 
same  doctrine  should  apply  to  all.  If  a  capitalist 
choosss  to  loan  money  to  a  manufacturing  or  rail- 
road corporation,  why  should  we  step  in  as  a  Con- 
vention and  say  what  his  security  shall  be?  Let 
him  look  after  his  own  interests.  He  was  oppos- 
ed to  any  constitutional  action  on  this  subject. — 
Were  he  a  member  of  a  Legislature,  he  would 
vote  to  secure  the  bill  holder  of  bank  bills  against 
los«.  But  he  would  let  depositors  look  after  their 
own  money.  And  he  would  do  the  same  with 
capitalists  who  loan  money  to  corporations. 

Mr.  SWACKHAMER  .was  in  favor  of  the 
amendment.  He  could  see  no  reason  for  making 
a  distinction  in  the  collection  of  debts.  The  dis- 
tinction heretofore  made  in  favor  of  the  landlord 
over  other  creditors  was  one  of  the  most  odious 
statutes  known  to  the  people  of  this  state. 

Mr.  RUSSELL  moved  to  amend  by  inserting 
all  incqrporations  hereafter  created.  He  thought 
this  necessary.  This  was  always  the  argument 
against  reform.  "  You  must  n't  do  it  here,"  was 
always  the  cry.  The  gentleman  just  up  was  ne- 
ver known  to  vote  tor  any  reform  that  had  for  its 
object  to  protect  the  people. 

Mr.  PATTERSON:  If  the  gentleman  says 
that,  he  has  never  read  the  General  Banking  law, 
where  I  moved  to  require  for  every  bill  issued 
the  security  of  United  States  stocks  or  of  this 
State.  The  gentleman  had  not  waked  up  then. 
Mr.  SWACKHAMER:  That  was  one  good 
move.  It  is  said  that  the  Dutch  cannot  see  after 
4  o'clock,  and  that  is  probably  the  reason  that  I 
did  not  see  what  the  gentleman  alludes  to.  Mr. 
-  S.  said  he  should  vote  to  strike  out  these  words, 
for  he  was  opposed  to  making  any  distinction  be- 
tween creditors. 

Mr.  RUSSELL:  If  these  words  are  stricken 
out,  the  preceding  section  will  not  read  right. 

Mr.  SWACKHAMER :  I  know  that,  and  I 
mean  to  strike  all  out  as  perfect  nonsense. 

Mr.  VAN  SCHOONHOVEN  hoped  the  exclu- 
sive friends  of  personal  liability  would  vote  this 
amendment.  He  referred  to, the  argument  of  his 
Iriend  from  St.  Lawrence,  who  had  ably  argued 
that  rail  road  iron  should  be  exempted.  He  (Mr. 
R.)  was  not  at  all  interested  in  railroad  iron  !  Not 
at  all !  They  have  nothing  to  do  with  rail-roads 
in  St.  Lawrence  !  Mr.  V.  S.  proceeded  to  argue 
against  the  injustice  of  making  distinctions  be- 
tween the  cre'ditors  of  these  corporations. 

Mr.  CAMBRELENG  meant  to  apply  to  bank- 
ing companies  the  provision  of  the  law  regarding 
manufacturing  companies.  He  reminded  the  Con- 
vention that  ever  since  1811,  we  had  had  the  per- 
sonal liability  principle  to  a  limited  extent  ap- 
plied to  corporations.  And  he  regretted  that  the 
gentleman  from  Herkimer  had  not  introduced  a 
simple  provision,  of  rive  lines,  based  on  the  ex- 
isting law.  That  would  meet  the  object  of  this 
whole  article  ;  and  he  now  gave  notice,  that 
when  the  article  in  relation  to  banks  should  com< 
up,  he  should  move  a  general  clause,  making  al 
corporations  liable  personally  to  the  amount  o 
the  shares  held  by  them. 

Mr.  AYRAULT  enquired  if  the  gentleman  in 
tended  to  apply  this  to  the  circulation  of  banks  o 
to  all  the  liabilities  ? 


Mr.  CAMBRELENG  replied  that  he  intended 
o  cover  all  their  liabilities. 

Mr.  SANFORD  called  for  the  previous  ques- 
ion.  It  was  seconded,  ayes  51,  noes  not  counted. 

The  main  question  was  ordered. 

The    question    was    on   Mr.    RICHMOND'S 

motion    to  strike    out  the    words,   "except    as 

o  debts  for  money  borrowed,   for  land  purchased 

ir  taken  by  authority  of  law  or  for  iron  for  rail 

oads,"  in  the  6th,  7th  and  8th  lines. 

Mr.  RICHMOND  demanded  the  ayes  and  noes. 
?hey  were  ordered  and  resulted,  ayes  52,  noes  31. 

The  motion  was  carried. 

Mr.  DANA  offered  an  amendment  to  strike  out 
hat  part  of  the  section  relating  to  magnetic  tele- 
graphs. 

This  was  not  in  order,  as  not  pending  when  the 
revious  question  was  seconded. 

The  question  was  then  taken  by  ayes  and  noes 
>n  the  section  and  resulted — ayes  44,  noes  42^  as 
ollows : — 

AYES— Messrs.  Bergen,  Bowdish,  Brundage,  Burr,  Cam- 
)releng,  II.  Campbell,  jr.,  CLirk,  Clyde,  Cuddeback,  Dan- 
orth,  Flanders,  Greene,  Hart,  Hotchkiss,  Hunter,  A.  Hun- 
ington,  Hyde,  Kemble,  Kernan,  Kingsley,  Loomis,  Mann, 
McNitt,  Morris,  Nellis,  Perkins,  Powers,  President,  Rich- 
mond, Russell,  St.  John,  Sanford,  Sears,  Shaw,  Sheldon, 
Shepard,  Stephens,  Taft,  Tilden,  Tutbill,  Waterbury, 
fawger,  Youngs — 44. 

NAYS— Messrs.  Allen,  Archer,  Ayrault,  F.  F.  Backus, 
Jascom,  Brayton,  Bruce,  Candee,  Conely,  Cook,  Cornell, 
Dana,  Dodd,  Dubois,  Gratiam,  Harris,  Hunt,  Jordan,  Mar- 
vin, Maxwell,Miller,Nicholas,  Parish,  Patterson,  Rhoades, 
iiker,  Salisbury,  W.  H.  Spencer,  Strong,  Swackhamer,. 
Taggart,  Tallmadge,  Townsend,  Van  Schoonhoven.Ward, 
White,  Willard,  Witbeck.  Wood,  W.  B.  Wright,  Young 
—42. 

The  section  was  carried. 

Mr.  JORDAN  moved  to  reconsider  the  vote  on 
he  4th  section,  because  with  the  last  part  of  it 
stricken  out,  it  was  useless ;  the  3d  section  provid- 
ed for  every  thing. 

Mr.  CAMBRELENG  said  that  both  the  3d  and 
ith  sections  ought  both  to  be  stricken  out,  and  a 
single  section  of  five  lines  inserted,  stating  that 
every  stockholder  in  every  corporation  should  be 
ndividually  liable  to  the  amount  of  his  or  her 
share  and  no  more.  He  would  draw  a  section  in 
;he  words  of  the  present  act  in  existence  since 
1811.  They  read  thus : 

(^  3.  Every  corporator  or  share  owner  in  any  incorpora ' 
ion  for  gain  or  benefit  to  the  corporators  or  share  holders, 
shall  be  individually  liable  to  the  extent  ot  the  share  or 
shares  he  may  hold  in  such  corporation  or  association  for 
ts  debts  or  liabilities. 

It  was  desirable  that  whatever  they  passed 
upon  should  be  done  with  great  unanimity. 

Mr.  JORDAN  suggested  that  it  should  be  made 
applicable  to  future  corporations. 

Mr.  CAMBRELENG  replied  that  that  would 
make  an  inequality  which  would  be  unjust. 

Mr.  HARRIS  wished  such  a  si-mple, sound  and 
sensible  proposition  might  prevail,  and  be  incor- 
porated in  the  Constitution.  They  could  all 
agree  with  great  unanimity  on  this  provision. 

The  5th  section  was  read  : 

5j  5.  Lands  may  be  taken  lor  public  way  for  the  purpose 
ot  "ranting  or  demising  to  any  corporation  the  franchise 
ot  way  over  the  same  lor  public  use,  and  for  all  necessary- 
appendages  to  such  rig. A  of  way.  Such  grants  and  demi- 
ses shall  be  made  in  such  cases  and  on  such  terms  and  con- 
ditions as  the  legislature  may  deem  for  public  good.  But 
no  such  grant  or  demise  shall  extend  beyond  filty  years  in 
duration. 


981 


Mr.  LOOiVlIS  had  several  amendments  to  ofle 
to  this  section,  so  as  to  read  thus: 

§  5.  Lands  and  streams  may  be  taken  lor  public  way  o 
public  use,  or  lor  thr  purpose  ot  granting  or  demiting  to  ain 
corporation  a  franchise  in  or  over  the  same,  1'or  public  use 
and  lor  all  necessary  appemlngcs  to  such  pulilic  usr.  Surl 
grants  ami  demises,  and  other  grants  and  demises  oi  lYau 
chisein  oroverpublic  lanQdfl.hJgnn  ays  and  streams.shall  b 
made  in  each  such  <•.,.«.',  on  MU-II  terms  and  conditions,  as 
the  legislature  may  deem  lor  public  good  ;  such  terms  am 
conditions  may  in  each  case  be  altered  or  modified  from 
time  to  time  by  special  laws;  but  no  such  grant  or  demise 
shall  extend  beyond  fifty  years  in  duration. 

Mr.  JORDAN  would  offer  this  as  a  substitute: 
«'  The  Legislature  shall  have  power  to  authorize 
the  taking  of  private  property  tor  public  use  on 
paying  a  just  compensation,  and  to  grant,  such 
franchises  as  the  public  good  may  require." 

Mr.  LOOMIS  objected  that  this  would  inter 
fere  with  the  first  section. 

Mr.  JORDAN  desired  to  give  the  legislature 
all  the  power  they  now  had  in  special  cases. 

Mr.  PERKINS  thought  that  the  amendment  of 
Mr.  LOOMIS  did  not  meet  the  end  he  appeared  to 
have  in  view.  The  sovereign  could  not  confer 
on  another  the  right  to  take  property;  but  he 
must  take  it  first,  and  then  give  it  to  the  third 
party.  This  would  be  the  effect  of  the  section  ; 
and  it  would  be  attended  with  great  difficulty, 
expense  and  trouble. 

Mr.  STRONG  rose  to  protest  against  all  this 
legislation  in  the  Constitution.  He  saw  the 
chairman  of  the  committee  on  previous  questions 
(Mr.  BERGEJV)  in  his  place,  and  so  he  would  say 
all  he  had  to  say  now. 

Mr.  STRONG  said  they  had  better  sleep  on  it, 
and  moved  to  tidjourn.  He  withdrew  it  to  al- 
low 

Mr.  MARVIN  to  offer  this : 

<5 1.  The  Legislature  may  pass  general  laws  authorizing 
persons  to  be  erected  into  a  body  corporate  for  banking, 
manufacturing,  religious  and  other  purposes  as  the  Legis- 
lature may  deem  safe  and  practicable,  and  under  such  re- 
strictions and  conditions,  and  with  such  powers  and  .limi- 
tations as  shall  be  provided  in  such  laws;  butno  law  shall 
embrace  more  than  one  species  or  class  of  corporations. 

Mr.  BASCOM  sent  up  the  following  proposi- 
tion : 

§  3.  Every  corporator  or  share  owner,  in  any  corpora- 
tion for  gain  or  benefit  that  shall  continue  in  operation  al- 
ter this  Constitution  goes  into  effect,  and  in  every  suoh 
corporation  to  be  hereafter  created,  shall  be  individually 
liable  to  the  extent  of  the  nominal  amount  oi  the  share  or 
shares  he  may  hold  in  said  corporation,  for  any  debt  or 
debts  to  be  created  by  said  corporation  after  this  Constitu 
tiun  goes  into  effect. 

And  then  the  Convention  adjourned. 

SATURDAY.  (99th  day)  Sept.  26. 

Prayer  by  the  Rev.  Dr.  WYCKOFF. 

Mr.  CAMBRELENG  moved  that  the  commit- 
tee of  the  whole  be  discharged  Irorn  the  further 
consideration  of  the  report  of  committee  No.  10 
— relative  to  currency  and  Banking. 

Mr.  BASCOM  moved  to  rescind  the  resolution 
excluding  Saturday  from  the  provisions  for  after- 
noon sessions. 

Mr.  VAN  SCHOONHOVEN  moved  to  lay  the 
resolution  on  the  table. 

Mr.  JONES  called  for  the  ayes  an*  noes  on  that 
motion.  It  was  rejected,  ayes  19,  nays  57. 

The  resolution  was  adopted. 

DISTRIBUTION  OF  LAND. 

Mr.  HUNT  presented  a  petition  from  the  Na- 


tional Reform  Association  of  the  city  of  New- 
York,  for  a  more  general  distribntion'of  landed 
property,  and  for  the  perpetuation  of  a  landed 
democracy.  Referred  to  committee  No.  is. 
INCORPORATIONS  OTHE^  TH  \N  BANKING  AND 
MUNICIPAL. 

The  Convention  resumed  the  consideration  of 
the  article  in  relation  to  corporations,  other  than 
municipal,  &c. 

.  The  fifth  section  being  under  consideration, 

The  question  was  taken  on  the  amendment  of 
Mr.  LOOMIS,  offered  last  night,  and  it  was  adopted. 

Mr.  KIRKLAND  thought  this  section  did  not 
sufficiently  provide  for  the  rights  of  the  owners  of 
the  lands  to  be  taken  for  these  purposes.  To  ob- 
viate this  objection,  he  proposed  the  following 
amendment :  "  To  insert  at  the  end  of  the  7th 
line  the  words  "  in  all  cases  of  the  taking  of  lands 
or  streams,  as  in  this  section  mentioned,  due  com- 
pensation shall  be  made  to  the  owner  or  owners 
thereof." 

This  was  adopted. 

Mr/ RICHMOND  moved  to  amend  by  striking 
put  the  word  "  corporation"  in  the  7th  line,  and 
inserting  "  individuals." 

After  some  conversation,  Mr.  R.  modified  his 
amendment,  so  that  it  should  read  "  corporations 
or  persons."  It  was  then  adopted. 

Mr.  JORDAN  desired  to  offer  a  substitute  for 
the  entire  section,  but  not  being  prepared  with  it, 
moved  that  the  section  be  passed  over  for  the 
present.  Agreed  to. 

The  sixth  section  was  read  as  follows : 

§  6.  All  corporations  and  associations  to  be  created  or 
brmed  after  the  adoption  of  this  Constitution,  shall  be  sub- 
ect  to  the  provisions  herein  respecting  corporations. 

Mr.  KIRKLAND  said  it  was  perfectly  super- 
fluous. Corporations  hereafter  to  be  created 
must  necessarily  be  subject  to  the  fundamental 
Laws  of  the  land.  He  therefore  moved  to  strike 
it  out. 

Mr.  LOOMIS  said  it  was  necessary  that  the 
section  should  remain  as  it  was. 

Mr.  BRUNDAGE  moved  to  add  at  the  end  of 
;he  section,  (and  this   took    precedence  of  a  mo- 
tion to  strike  out)  "  and  shall  sue  and  be  sued  in 
the  same  manner  as  private  citizens." 
Mr.  SIMMONS  opposed  it. 
Mr.  RICHMOND  thought  it  necessary  to  bring 
companies  and  individuals  on  the  same  level,  in 
espect  of  rights   and   principles.     Corporations 
should  be  sued  in  justices'  courts  as  well  as  indi- 
viduals'. 

Mr.  BRUCE  was  very  glad  the  gentleman  from 
Steubeh  had  offered  this  proposition,  and  he  hoped 
t  would  prevail.  He  thought  we  had  already 
idopied  provisions  which  were  in  violation  of  all 
irivate  right. 

Mr.  RICHMOND  called  for  the  ayes  and  nays, 
and  there  were  a\es  74,  nays  7,  as  follows : 

AYES — Messrs.  Allen,  Angel,  Ayrault,  Bascom,  Bergen, 
Jowdish,  Brayton,  Bruce,  Brundage,  Bull,  Burr,  Cambre- 
eng,  Clark,  Clyde,  Conely,  Cook,  Cornell,  Crooker,  Cud- 
leback,  Dana,  i)ul:oN,  Kl,ni<k>rs,  (k-bliard,  Greene,  Haw- 
ey,  Hoffman,  Hotchki>s,  Hunt,  Hunter,  A.  Hunting-oil, 
lyde,  Jones,  Kcmble,  Kernan,  Kingsley,  Kirkland,  Loo- 
nis,  Mann,  McNeil,  McNitt,  Morris,  Nicholas,  O'Conor, 
'arish,  Penniman,  Powers,  Rhoades,  Richmond,  St.  John, 
Sanford,  Sears,  Shaw,  Sheldon,  E.  Spencer,  W.  11.  spen- 
cer, Stephens,  Strong,  Swackhamer,  Tall,  Taggart,  Tall- 
madge.  J.  J.  Taylor,  Townsend,  Tuthill,  Van  Schoonho- 
ven,  Waterbury,  AVhite,  Wiliard,  Wood,  A.  Wright,  Yaw- 
ger,  Young,  Youngs— 74. 


982 


NOES— Messrs.  F.  F.  Backus,  Dana,  Miller,  Patterson, 
Shepard,  Simmons,  Smith— 7. 

Mr.  DANA  moved  to  strike  out  the  words — 
"  herein  respecting  corporation?,"  in  the  third 
line,  and  insert  "  of  this  article  "  Carried. 

Mr.  KIRKLAND  moved  to  strike  out  section 
six,  and  insert  the  following,  which  he  said  met 
the  approbation  of  the  chairn.an  of  the  committee: 
^  6.  The  term  corporations  as  used  in  this  article  shall 
be  construed  to  include  all  associations  and  joint  stock 
companies  hereafter  formed  having  any  of  the  powers  or 
privileges  of  corporations  not  possessed  by  individuals  or 
partnerships.  And  all  corporations  shall  have  the  right  to 
sue,  and  shall  be  subject  to  be  sued  in  all  courts  in  like  ca- 
ses as  natural  persons. 

Mr,  RUSSELL  desired  to  insert  the  words — 
"  hereafter  created,"  so  as  not  to  extend  the  pro- 
vision to  existing  charters. 

Mr.  CAMBRELENG  opposed  the  motion. 

Mr.  RUSSELL  protested  against  ihis  as  an  act 
of  grossly  bad  faitn.  There  were  now  invested 
in  corporaiions  in  this  s;ate,  other  than  banking, 
more  than  thirty  millions  of  capital,  which  would 
be  driven  from  this  state  by  such  legislation  as 
this.  Who  would  build  your  Erie,  your  Hudson 
River,  and  your  northern  rail  roads,  if  \ou  made 
this  sweeping  alteraiion  in  their  charters  ?  No 
one.  The  capitalists  who  had  subscribed  and  paid 
their  first  instalments,  would  not  give  another  dol- 
lar. He  earnestly  protested  against  such  retro- 
active legislation.  If  the  gentleman  wanted  to 
reach  the  Manhattan  Bank,  let  him  attack  it 
singly,  and  not  strike  at  every  charter  in  one  fell 
swoop. 

Mr.  SIMMONS  enquired  whether  it  was  pro- 
posed to  attach  these  liabilities  to  pre-existing 
corporations  ? 

Mr.  RUSSELL  understood  Mr.  CAMBRELENG 
to  make  such  a  proposition. 


Mr.  SIMMONS  enquired  whether  the  gentle- 
man thought  it  was  proposed  to  attach  the  indi- 
vidual liability  to  debis  previously  existing? 

Mr  RUSSELL  supposed  that  the  effect  would 
be  the  same.  Mr.  R.  was  understood  to  oppose 
attaching  the  principle  to  any  corporation  no\\ 
existing.  Most  of  them  fell  in  within  a  few  yeirs 
and  when  they  were  renewed,  then  these  provi- 
sions could  be  adopted.  Mr.  R.  considered  the 
adoption  of  the  contrary  principle  in  relation  to 
them,  would  shake  the  faith  of  capitalists  in  oth 
er  Slates,  in  the  chai  ters  of  this  State,  to  the  great 
injury  ol  the  people  and  of  works  of  internal  im- 
provement. 

Mr.  CAMBRELENG,  acknowledging  himself 
to  be  one  of  those  reformers  who  had  no  respect 
whatever,  as  a  matter  of  principle  for  those  rights 
and  privileges  whose  origin  lies  in  the  ashes  of 
the  po.st — he  had  no  reverence  tor  royal  grants  or 
privileges — he  would  appease  the  new-born  zeal 
ot  the  gentleman  from  St.  Lawrence,  by  with- 
drawing his  pioposition  to  revoke  the  charters  of 
the  Manhattan  Company  and  the  Dry  Dock  Bank. 
The  charter  for  one  of  them  was  a  dead  letter  al- 
ready— the  purposes  for  which  it  was  created  had 
ceased.  The  gentleman's  democracy  and  princi- 
ples of  reform  were  in  effect  that  he  would  ex- 
tend what  he  considered  to  be,  these  ruinous  prin- 
ciples to  all  corporations  hereafter  to  be  created, 
but  would  not  to  the  Northern  railroad.  He 
would  leave  to  the  gentleman  to  settle  the  ques- 
tion with  his  own  morality  and  sense  of  right. — 


The  principle  had  already  existed  in  spirit  lor 
hirty  years,  and  there  was  at  least  a  thousand  cor- 
porations existing  under  it.  He  would,  therefore, 
propose  a  modification  of  his  amendment,  so  as 
o  apply  only  to  future  incorporations. 

Mr.  LOOMIS  expressed  his  concurrence  in  the 
riews  of  Mr.  CAMBRELENG.  To  tie  up  all  the 
corporations  hereafter  to  be  created,  and  to  allow 
hose  already  existing  to  go  free,  would  be  to  in- 
crease the  exclusive  privileges  of  those  last. 

Mr.  SIMMONS  enquired  what  provision  would 
>e  made  for  cases  wherein  a  company  might  not 
accept  the  new  one  proposed  to  be  imposed  upon 
them  ? 

Mr.  LOOMIS  admitted  that  this  was  a  great 
question  of  principle  to  be  settled  here.  He  was 
one  of  those  who  believed  that  we  had  a  right  to 
mpose  these  restrictions. 

Mr.  SIMMONS  said  that  in  the  case  of  the 
Manhattan  Bank  and  other  corporations  vested 
with  a  franchise  to  issue  money,  &c.,  he  had  no 
doubt  of  the  power  to  revoke  these  charters. 

Mr.  LOOMIS  was  happy  to  have  the  opinion 
of  so  high  a  legal  authority  on  the  subject. 

Mr.  CAMBRELENG  said  that  was  the  opinion 
of  Chancellor  Kent  in  the  case  of  the  Manhattan 
Bank. 

Mr.  LOOMIS  was  aware  of  this.  What  he  de- 
sired to  do  here  was  to  assert  the  principle  that 
the  legislature  could  not  part  with  any  power 
which  it  possessed.  And  that  whatever  it  might 
do,  it  might  also  undo.  In  case  the  public  good 
required  the  repeal  by  the  Legislature  of  any  law 
under  which  rights  had  been  acquired,  or  pro- 
perty invested,  it  was  also  the  duty  of  the  Go- 
vernment to  make  compensation  to  the  owner  so 
as  to  do  no  injustice.  And  in  the  case  of  a  law 
authorizing  the  borrowing  of  money  or  creation 
of  State  debt,  such  law  could  not  be  repealed 


without  payment  of  the  debt. 

Mr.  COOK  asked  the  gentleman  from  Herki- 
mer  (Mr.  LOOMIS,)  if  the  public  faith  was  not  as 
much  broken  by  a  total  change  of  the  nature  of 
the  contract,  although  a  Charter,  when  the  stock- 
holders of  any  company  had  expended  their  capi- 
tal in  good  faith,  as  when  money  was  borrowed 
according  to  law,  and  the  nature  and  provisions 
of  the  law  were  changed  by  the  succeeding  leg- 
islature ?  The  passage  of  this  amendment  was 
wholesale  repudiation  of  the  worst  kind.  Mil- 
lions of  dollars  had  been  expended  in  good  faith 
in  this  state,  and  it  was  an  utter  breach  of  public 
faith  to  change  the  nature  of  the  contracts  by  a 
general  and  sweeping  provision.  Mr.  C.  admit- 
ted the  right  of  the  legislature  to  repeal  any  char- 
ter, they  providing  for  the  damage  caused  by  such 
repeal  . 

Mr.  KIRKLAND  was  willing  to  accede  to  the 
amendment  of  Mr.  RUSSELL  altho'  he  thought 


there  was  no  necessity  for  it. 
that  the  debate  which  had 


He  thought  also 
occurred   between 

Messrs.  RUSSELL  and  CAMBRELENG  was  very 
inopportune  at  this  time,  the  question  not  being 
under  consideration. 

Mr.  RICHMOND  expressed  his  opposition  to 
any  thing  that  would  extend  to  these  corpora- 
tions greater  privileges  or  rights  than  were  pos- 
sessed by  individuals.  The  contrary  doctrine 
might  be  held  for  a  few  years,  but  the  time  was 
near  when  it  would  utterly  be  subverted. 


983 


Mr.  NICHOLAS   said  a  distinction  was  made 
between    the   rights   of    corporations    ;ind 
individuals   which    did    not  exist   in    fact.     The 
right  «i'  eminent  domain,  which  gave  to  the  gov- 
ernment  the  power   to  appropriate  private  pro- 
to  public  purposes,   the    owner  being  fully 
ner.ited  then-tor,   was  a  peculiar,  but  an  in- 
I  inwer  granted  by  every  ci- 
vilized people  to  its  government  for  the  common 
benefit   of  the   whole  community.      Now,   this 
;•  was   just  as  applicable  to  the  property   of 
corporate  companies  as  that   of  individuals.     If 
the  right  of  way  over  lands  belonging  to  an  in- 
corporated company  was  required   for  the  use  of 
the  public,  it  might  be  thus  appropriated  as  rea- 
dily as  if  owned  by   individuals.     On  the  other 
hand,  all  corporations  had   the  same  right  to  le- 
gal protection  as  individuals.     A  chartered  com- 
pany could  not  be  vested  with   rights  one  year, 
and  the  next  year  stripped  of  those  rights  by  the 
legislature.     He  was  surprised  to   hear  the  gen- 
tleman from  Herkimer  express   the  opinion  that 
the  acts  of  the  legislature  were  not  binding  upon 
subsequent  legislatures.     Such  a  doctrine  would 
be  subversive   of  our  government,  which  was  a 
government  of  laws— for,  if  adopted,  it  must  de- 
stroy the  stability  of  and  respect  for  the  laws. — 
He  had  earnestly  hoped,   until  we  took  up  this 
report,  that  the   Convention    would,  to  the  close 
of  its  labors,  steer  clear  of  all  extravagancies,  and 
he  would  still  entertain   the  hope   that  vested 
rights  would  be  duly  respected ;  but  if  the  resull 
were  otherwise,  if  the  legislature  were  authorizec 
to  tamper  with  such   rights,   any   such  interfer- 
ence would  prove  a  nullity,   as  our  Constitution 
would  be  at  oirce  in  conflict  with   the   Constitu^ 
tion  of  the  United  States,  which  protects  all  vest 
ed  rights  by  forbidding  retrospective  legislation 
Mr.  KIRKLAND  accepted  the  amendment  o 
Mr.  RUSSELL. 

Mr.  STETSON  continued  the  debate,  when, 
Mr.   CAMBRELENG,  in  order  to  place  thi 
question  distinctly  before  the  Convention,  and  t< 
see  whether  it  desired  to  make   any   distinction 
between  those  corporations,  moved   to  strike  ou 
the  words  "  hereafter  found"  in   the   substitut 
of  Mr.  KIRKLAND. 

Mr.  VAN  SCHOONHOVEN  opposed  the  a 
mendni'  nt. 

Mr.  CAMBRELENG  replied. 
Mr.  STETSON  went  on  to  assert  that  wher 
a  charter  had  been  granted,  no  matter  whethe 
the  clause  to  repeal  or  modify  it  was  containe 
or  not,  it  was  impossible  to  impose  the  individu 
al  liberty  clause  upon  them.  It  would  be  an  ex 
post  facto  law.  Such  a  provision  as  this  woul 
so  be  declared  by  the  supreme  court  of  the  U.  S 
He  was  in  favor  of  individual  liability,  but  desir 
edto  have  it  pro  rata.  He  was  not  one  of  thos 
theoretical  reformers  who  could  perceive  no  dif 
ference  in  the  cases  where  the  application  of  th 
principle  was  to  be  made.  Mr  S.  adverted  i 
conclusion  to  the  disastrous  elfect  which  the  ap 
•  plication  of  this,  principle  might  have  on  th 
Northern  rail  r 

Mr.  L'JOMIS  did  not  believe  these  word 
whether  inserted  or  not,  would  make  .n:y  uiuteria 
difference.  He  concurred  in  the  views  ot  M 
CAMBRELENG,  but  he  believed  from  the  \ariet 
of  views  here,  that  it  would  be  impossible  to  pro 


all  extend  beyond  50  years  in 


ure  their  adoption;  and  he  would  therefore  make 
o  exertion  to  secure    it.     Mr.  L.  urged  that  the 
uestion  should  now  be  taken. 
Mr.  JORDAN  opposed  the  motion  of  Mr.  CAM- 

RELENG. 

The  debate  was  continued  by  Messrs.  SUMMONS 
nd  STETSON,  when 

Mr.  WHITE  asked  for  the  previous  question. 

There  was  a  second,  and  the  main  question  or- 
ered, 

The  question  was  then  taken  on  the  amendment 
f  Mr.  CAMBRELENG,  and  there  were  ayes  39, 
ays  53.  So  the  amendment  was  rejected. 

The  question  was  then  taken  on  the  substitute 
f  Mr.  KIRKLAND,  and  it  was  adopted,  ayes  60, 
ays  15. 

The  section  was  then  adopted,  ayes  68,  nays  21. 

Mr.  JORDAN  then  proposed  the  following  sub- 
titute  for  the  fith  section  :— 

§  5.  Special  laws  may  be  passed  authorising  the  taking 
f  private  property  for  public  use  on  just  compensation 
.rst  being  made  therefor;  and  for  transferring  public* 
ands,  ways  or  streams,  or  a  right  to  the  use  thereof,  to  in- 
ividuals  or  corporations  for  public  purposes,  and  for 
;ranting  such  tranchises  as  are  not  by  this  constitution 
uthorized  to  be  conferred  by  general  laws.  But  all  such. 
pecial  laws  shall  be  subject  to  be  altered,  modified  or  re- 
ealed. 

This  was  discussed  by  Mr.  RICHMOND,  when 
Mr.  SWACKHAMER  moved  to  amend  by  pro- 
riding  that  the  value  of  the  property  taken  should 
>e  assessed  by  a  jury. 

Mr.  HAWLEY  moved  to  amend  the  original 
section  by  striking  out  the  words   "  but  no  such 
grant  or  demise  sh 
duration." 

The  former  propositions  were  further  debated 
by  Messrs.  TOWNSEND  and  TALLMADGE. 

Mr.  TODD  moved  the  previous  question.  No 
second. 

Mr.  HUNT  moved  to  amend  the  amendment 
of  Mr.  HAWLEY,  by  providing  that  the  terms  and 
conditions  of  grants  for  devises  should  be  fixed  by 
law  for  a  longer  period  than  fifty  years.  Lost. 

Messrs.  MORRIS  and  BASCOM  continued  the 
debate,  and  the  amendment  of  Mr.  HAWLEY  was 
agreed  to. 

Mr.  JORDAN'S  substitute  next  came  up.  Mr. 
J.  thought  it  was  not  necessary  to  settle  in  the 
constitution  the  manner  of  ascertaining  the  da- 
mages in  cases  where  property  was  taken.  There 
was  a  provision  that  the  property  should  not  be 
taken  without  compensation,  and  that  was  as  far 
as  he  should  go.  There  were  many  questions  of 
detail,  such  as  what  kind  of  a  jury  should  be  se- 
lected, their  number,  &c.,  which  were  proper 
matters  of  legislation. 

Mr.  SWACKHAMER  wished  to  make  .this 
uniform  with  the  great  principle  upon  which  all 
such  questions  were  settled  in  this  country.  He 
thought  its  adoption  would  make  the  provision 
more  acceptable  to  the  people. 

After  some  further   debate  — 

Mr.  LOOMIS  moved  to  amend  the  substitute, 
so  that  it  should  read  as  follows  : 

"  Special  laws  may  be  passed,  granting  or  demising  for 
public  use  to  any  person  or  corporation,  any  property  so 
Uken,  or  any  franchise  therein  or  in  respect  to  public 
lands,  ways  or  streams,  on  such  terms  and  conditions  as 
may  be  provided  by  law,  subject  to  alteration  and  modifi- 
cation from  time  to  time  by  law." 


984 


After  some  further  debate,  between  Messrs. 
JORDAN  and  STETSON,  the  Convention  took  a 
recess  until  3£  o'clock,  P.  M. 

AFTERNOON  SESSION. 

The  question  being  upon  the  proposition  of  Mr. 
JORDAN  as  a  substitute  for  the  5th  section  of 
Mr.  LOOMIS'  report,  and  the  amendment  of  Mr. 
L. thereto, 

After  some  debate  by  Messrs.  STETSON, 
MURPHY,  KIRKLAND,  and  VAN  SCHOON- 
HOVEN,  as  to  the  effect  of  their  provisions,  in 
permitting  the  Legislature  to  grant  exclusive  pri- 
vileges to  corporations, 

M'r.  BERGEN  moved  the  previous  question, 
fearing  that  the  fog  in  which  gentlemen  seemed 
involved  would  only  become  greater  by  more  dis- 
cussion. 

There  :vas  a  second,  &c. 

The  amendment  of  Mr.  LOOMIS  was  negativ- 
ed—ayes 36,  noes  51. 

The  substitute  proposed  by  Mr.  JORDAN  was 
rejected — ayes  33,  noes  54. 

The  original  section  was  also  lost,  as  follows  : — 
AYES— Messrs.  Allen,  Bergen,  Brundage,  R.  Campbelljr. 
C/onely,  Dana,  Danforth,  Greene,  Hart,  Hotchkiss,  Hunter, 
A.Huutington,  Hyde,  Jones,  Kernan,  Kingsley,  Loomis, 
McNitt,  Maxwell,  Morris,  Nellis,  President,  Russell,  San- 
ford,  Sears,  Sheldon,  Shepard,  Stephens,  Taft,  Townsend, 
Tuthill,  Ward,  Wood,  Yawger,  Youngs— 35. 

NAYS— Messrs.  Angel,  Archer,  Ay rault,  F.  F.  Backus, 
Bascom,  Brayton,  Burr,  Cambrtleng,  Candee.  Chamber- 
lain, Glark,  Cook,  Cornell,  Crooker,  Dodd,  Dubois,  Flan- 
ders, Gebhard  Graham,  Hawley,  Jordan,  Kifkland,  Mann, 
McNeil,  Marvin,  Miller,  Murphy,  Nicholas,  O'Conor,  Pa- 
rish, Patterson,  Penniman,  Perkins,  Rhoades,  Richmond, 
Biker,  St.  John,  Shaw,  W.  H.  Spencer,  Stetson,  Stow, 
Strong,  Swackhamer,  Taggart,  Tallmadge,  J.  J.  Taylor, 
Vache,  Van  Schoonhoven,  Waterbury,  White,  A.Wright, 
W.  B.  Wright,  Young— 63. 

Mr.  MARVIN  moved  a  reconsideration  of  the 
vote  adopting  the  1st  section,  with  a  view  of  mov- 
ing a  substitute  therefor,  which  should  more 
plainly  indicate  the  powers  proposed  to  be  confer- 
red upon  the  Legislature  in  giving  special  char- 
rers. 

Mr.  PERKINS  presumed  that  divine  wisdom 
itself  could  not  form  a  code  of  laws  upon  general 
rules  alone  which  could  be  distinctly  understood 
in  their  application  to  all  classes  of  cases. 

Messrs.  MURPHY  and  NICHOLAS  continued 
the  debate. 

The  motion  to  reconsider  prevailed. 

Mr.  MURPHY  moved  to  strike  out  the  words, 
"  or  granting  to  them  exclusive  privileges,"  in 
the  second  line,  and  also  "  except  as  provided  in 
this  article"  in  the  last  line. 

Mr.  MARVIN  preferred  that  his  proposition 
should  be  substituted  for  the  entire  section, 
which  would  cover  the  whole  ground,  and  dis- 
solve the  difficulties  which  seemed  to  beset  the 
subject.  His  substitute  was  as  follows  : 

(5  1-  The  Legislature  shall  pass  general  laws  authorizing 
persons  to  be  erected  into  a  body  corporate  for  banking, 
manufacturing,  religious  and  such  other  purposes  as  the 
Legislature  may  deem  safe  and  practicable,  and  under  such 
restrictions  and  conditions. and  with  such  powers  and  limi- 
tations as  shall  be  provided  in  such  laws;  but  no  law  shall 
embrace  more  than  one  species  or  class  of  corporations. 

Mr.  MURPHY  preferred  his  own  proposition. 
There  could  be  no  panacea  for  all  the  difficulties 
which  arose  upon  the  question  of  corporation. — 
The  legislature,  by  passing  a  general  law  appli- 
cable to  a  majority  of  cases,  would  be  relieved 


from  the  numerous  applications  which  were  ev- 
ery year  thrown  upon  them.  In  cases  which 
were  peculiar,  they  might  take  them  into  con- 
sideration, or  amend  the  general  law  by  incorpo- 
rating into  it  the  provisions  asked  for  in  these 
special  cases. 

Mr.  CAMBRELENG  thought  that  simplicity 
and  directness  should  be  the  leading  features  in 
forming  a  Constitution  ;  and  in  order  to  effect 
this  desideratum,  in  regard  to  the  question  now 
up,  he  had  drawn  the  following  section  to  apply 
to  it.  Four  or  five  lines  would  effect  all  the  pur- 
poses of  this  provision.  He  would  read  it: 

^  1.  The  Legislature  shall  have  no  power  to  pass  any  law 
granting  special  charters  to  any  corporation  or  joint  stock 
association,  except  corporations  exclusively  municipal; 
but  such  corporations  or  associations  may  te  formed  under 
general  laws. 

Mr.  LOOMIS  said  that  it  would  be  exceedingly 
unwise,  indiscreet,  and  improper  for  the  Conven- 
tion to  go  back  and  undo  what  they  had  done  with 
so  much  labor,  (laughter)  when  there  was  .barely 
a  quorum  in  the  house,  (great  noise  and  ^confu- 
sion) and  when  many  of  those  who  had  aided  in 
adopting  the  article,  so  far  as  it  had  passed,  were 
absent ;  they  ought  not  now  to  tear  to  pieces 
what  they  made  when  the  house  was  full.  It 
was  not  that  we  had  commenced  wrong ;  (laugh- 
ter and  noise,}  that  this  reversal  of  a  previous 
strong  affirmative  decision  was  asked ;  but,  be- 
cause we  had  been  unable  to  agree  upon  the  de- 
tails. This,  he  (Mr.  L.)  did  not  think  was  the 
proper  way  for  us  to  proceed,  who  were  here  to 
make  the  fundamental  laws  of  the  land.  For  the 
purpose  therefore,  of  raising  this  question,  until 
there  should  be  a  full  house,  he  moved  to  lay  the 
article  upon  the  table.  Agreed  to,  49  to  34. 

Mr.  CAMBRELENG  moved  to  take  up  the  re- 
port of  committee  No.  16  on  Currency  and  Banks. 

Mr.  STRONG :  I  move  we  adjourn. 

The  motion  was  carried  by  one.  Ayes  43, 
noes  42. 

So  the  House  adjourned. 

MONDAY,  (lOQth  day.)  Sept.  28th. 
Prayer  by  the  Rev.  Mr.  BENEDICT. 
A  communication  was  received  from  the  Chan- 
cellor relative   to   the  difficulty  experienced   in 
getting  returns   from  the  Clerks  and  Registers  as 
to  the  monies  now  in  their  hands. 

It  was  ordered  to  be  printed  and  laid  on  the 
table. 

FORMATION  OF  NEW  COUNTIES. 

Mr.  BRUNDAGE  moved  that  the  committee 
appointed  to  revise  and  arrange  the  new  Constitu- 
tion be  instructed  to  insert  the  following  provision  : 

11  In  case  of  the  formation  of  a  new  county,  from  difler- 
ent  Senate  districts,  the  Legislature  may  at  any  time  reor- 
ganize the  judicial,  Senatorial  or  Assembly  districts,  which 
may  be  aflected  by  the  formation  of  such  county." 

It  was  laid  on  the  table,  ayes  47.  noes  23. 
Mr.  WRIGHT  moved  to  discharge  the  commit- 
tee of  the  whole  from  the  consideration  of  the 
reports  of  committees  No.  7  and  No.  4,  on  local 
officer,  and  on  the  elective  franchise,  and  that 
they  be  taken  up  next  in  order,  thus  : 

The  appointment  or  election  oi  all  officers  whose  func. 
tions  are  local,  and  their  tenure  of  office,  powers,  duties 
and  compensation. 

The  elective  franchise,  and  the  qualification  to  vote  and 
to  hold  office. 


985 


In  relation  to  municipal  corporations,  their  powers  o 
taxation,  &c. 

Mr.  CAMBRELENG  hoped  that  the  report  or 
banking  would  be  taken  up  next.  It  ought  to  fol 
low  the  kindred  subject  of  corporations,  and  wai 
first  in  order. 

Mr.  WRIGHT  said  this  report  on  the  electiv* 
franchise  was  the  inost  important  we  had  to  con 
aider. 

Mr.  CAMBRELENG   asked  him  to  modify  his 
resolution   so  as  to  take  up  these  two  next  afte 
the  reports  on  corporations  and  on  banking. 

Mr.  WRIGHT  accepted  this. 

Mr.  ALLEN  said  that  he  wanted  the  report  on 
municipal  corporations  taken  up  next.  It  was 
lLore  important  than  the  one  on  banking 

Mr.  JORDAN  moved  to  add  after  No.  4,  the  re- 
port of  committee  No.  14  on  cities  and  Villages 

Mr.  PATTERSON  thought  that  the  one  on 
rights  and  privileges  ought  to  be  considered  next. 
They  ought  not  to  do  so  much  legislating. 

Mr.  JORDAN'S  amendment  was  carried  and 
so  was  Mr.  WRIGHT'S  resolution  as  amended. — 
So  that  the  order  of  business  stands  thus  : 

1.  Incorporations.  2.  Banking.  3.  Local  of- 
ficers. 4.  Elective  Franchise.  5.  Cities  and  In- 
corporated Villages. 

Mr.  TALLMADGE  asked  that  committee  num- 
ber eleven  be  discharged  from  the  further  con- 
sideration of  a  petition  on  the  rights  of  the  clergy, 
&c.,  and  that  it  be  referred  to  the  committee  ol 
the  whole  having  in  charge  the  report  on  rights 
and  privileges.  Agreed  to. 

Mr.  SWACKHAMER  offerred  the  following: 

Resolved,  Tha'.  the  report  of  standing  committee  No  12, 
with  amendments  made  thereto  by  the  convention,  be  ta 
ken  from  the  table  and  referred  to  a  special  committee  ol 
7;  also,  of  committees  No.  16,  (66  and  6?)  and  of  No.  16  (33 
and  56),  be  referred  to  the  same  select  committee,  with  in- 
structions to  report  over  comprehensive  and  concise  arti- 
cles on  the  subject  ol  incorporations. 

Mr.  CAMBRELENG  said  that  he  had  drawn 
his  report  carefully,  and  had  since  revised  it,  and 
was  ready  to  act  on  it  at  once,  and  it  could  begot 
through  with  by  two  o'clock  to-day.  No  select 
committee  could  improve  it. 

Mr.  SWACKHAMER  said  he  had  offered  his 
resolution  from  a  mere  sense  of  duty.  Unless  the 
resolution  should  prevail,  he  believed  there 
would  be  nothing  else  done  during  the  session.— 
It  was  impossible  for  the  convention  to  go  thro' 
these  reports  section  by  section,  and  the  plan  he 
had  suggested  would  be  the  only  way  of  dispos- 
ing of  these  matters  during  the  present  session. 

Mr.  CAMBRELENG  moved  to  lay  the  resolu- 
tion on  the  table. 

Mr.  S's.  motion  was  laid  on  the  table.  • 

Mr.  WHITE  by  consent,  presented  a  petition 
of  Mr.  JAMES  on  assessments.  It  was  referred. 

Mr.  MURPHY  gave  notice  of  a  motion  to  re- 
consider the  recent  vote  on  the 'order  of  business. 

On  motion  ot  Mr.  SHEPARD,  Mr.  CHAT- 
FIELD  was  excused  from  serving  on  the  commit- 
tee of  Revision,  on  account  ol  sickness.  Messrs. 
POWERS  and  RUSSELL  were  appointed  to  fill  va- 
cancies. 

Mr.  STOW  offered  the  following  additional  sec- 
tion to  the  report  of  committee  No.  4: 

§  An  elector  owning  a  freehold,  or  having  an  uneroired 
term  of  not  less  than  twenty-one  years,  m  a  leasenolct 
(now  existing)  may  by  an  instrument  executed  by  him, 

98 


declare  that  he  intends  to  exempt  from  incumbrances  for 
debt,  the  property  described  in  such  instrument ;  the  value 
of  such  property  should  not  be  less  than  one  thousand  dol- 
lars. 

<)  — .  The  value  of  the  property  mentioned  in  the  last 
section  shall  be  ascertained  by  the  assessors  of  the  town  or 
wardia  which  it  shall  be  situated,  who  shall  make  a  certi- 
ficate of  their  appraisal.  Such  instrument  and  such  certi- 
ficate shall  be  acknowledged  in  the  manner  entitling  a 
deed  to  be  recorded,  and  shall  be  iccoided  in  the  clerk's 
office  of  the  county  in  which  the  property  is  situated;  and 
notice  of  such  record  shall  be  published  in  such  manner 
and  for  such  time  as  shall  be  prescribed  by  law.  After 
such  record,  and  notice  thereof  shall  have  been  duly  puo- 
lished,  such  property  shall  not  be  incumbered  by  or  lor 
any  debt  created  or  contracted  by  such  elector.  1  his 
privilege  shall  not  enable  an  elector  to  Isold  more  than  one 
piece  of  property  thus  exempt  at  the  same  time;  and  such 
exemption  shall  cease  whenever  he  shall  cease  to  be  a  re. 
sident  ot  this  state. 

Mr.  LOOMIS  was  also  excused  from  serving  on 
the  same  committee  of  Revision,  on  account  of 
sickness.  » ' 

The  chair  was  authorised  to  fill  the  vacancies 
of  Mr.  CHATFIELD,  and  Mr.  LOOMIS. 
CURRENCY  AND  BANKING 

Mr.  CAMBRELENG  moved  that  the  report  of 
committee  No  16  be  taken  up.  Agreed  to. 

The  same  was  then  taken  up,  wher*  Mr.  CAM- 
BRELENG offered  the  following  substitute  for 
the  whole  report: 

— .  The  Legislature  shall  have  no  power  to  pass  any 
act  granting  special  charters  for  banking  purposes;  but  as- 
sociations may  be  formed  for  such  purposes  under  gen- 
eral law. 

— .  The  Legislature  shall  have  no  power  to  authorize, 
nor  to  pass  any  law  sanctioning  in  any  manner,  the  sus- 
pension of  specie  payments,  by  any  person,  association  or 
"ncorporation  issuing  bank  notes  ol'  any  description 

§  — .  The  Legislature  shall  provide  by  law  lor  the  regis 
try  of  all  bills  or  notes,  issued  or  put"  in  circulation  as 
money,  and  shall  require  ample  security  for  the  redemp- 
tion of  the  same  in  specie.  The  stockholders  in  every  cor- 
poration and  joint  stock  association  lor  banking  purposes, 
issuing  bank  notes  or  any  kind  of  paper  credits  to  circu- 
late as  money,  after  the  first  day  of  January,  1850,  shall  be 
"ndividually  responsible  to  the  amount  of  their  respective 
share  or  shares  of  stock  in  any  such  corporation  or  associ- 
ation for  all  its  debts  and  liabilities  of  every  kind  contract- 
ed after  the  said  1st  day  of  January,  1850. 

$  — .  The  Legislature  shall  limit  the  aggregate  amount 
ol  bank  notes  to  be  issued  by  all  the  banks  and  joint  stock 
associations  in  this  State,  now  existing  or  which  may  be 
hereafter  established. 

^  — .  All  incorporated  companies  and  associations,  exer- 
ising  banking  powers,  shall  be  subject  to  visitation  and 
xamination  at  the  instance  of  their  shareholders,  or  of 
heir  creditors,  under  regulations  to  be  established  by  the 
^egislature;  and  in  case  of  the  lailure  of  any  such  corpora- 
ion  or  association,to  discharge  its  debts  or  liabilities,  or  of 
ny  of  its  members  to  discharge  the  debts  lor  which  they 
may  be  personally  liable  as  members  of  such  corporation 
>!•  association  provision  shall  be  made  for  the  speedy  and 
quitable  settlement  of  the  affairs  of  such  corporation  or 
ssociation  and  for  dissolving  the  same. 

Mr.  CAMBRELENG  moved  that  the  first  sec- 
ion  be  now  taken  up. 

Mr.  AYRAULT  said  that  these  were  new  pro- 
>ositions ;  entirely  new  matter ;  he  hoped  they 
vould  not  be  pressed  at  this  time.  They  ought 
o  consider  about  them  carefully,  as  the  changes 
vere  very  important. 

Mr.  CAMBRELENG  said  that  if  the  gentleman 
vould  allow  him  he  could  explain  the  provisions 
o  the  satisfaction  of  all  present. 

Mr.  AYRAULT  had  no  objections,  although 
e  should  like  to  have  the  documents  printed 
first. 

Mr.  CAMBRELENG  said  that  he  must  ask  the 
ndulgence  of  the  committee  to  allow  him  to  go 


986 


beyond  the  fifteen  minutes  rule,  in  explanation  of 
his  views  on  banking. 

General  cries  of  "  leave — leave" — "  take  half 
an  hour" — "  an  hour" — "  an  hour  and  a  half" — 
*:  take  any  time." 

Mr.  CAMBRELENG  said,  before  proceeding  to 
the  consideration  of  the  amendments  proposed,  it 
is  perhaps  proper,  that  I  should  ask  the  indul- 
gence of  the  Convention  to  submit  some  general 
remarks  on  the  subject  of  banking,  and  especial- 
ly that  branch  of  it  relating  to  currency.  The 
question  of  currency— the  question  by  what 
standard  the  contracts,  property  and  labor  of  a 
•tate  shall  be  measured — is  one  of  the  most 
important  that  can  be  presented  to  the  attention 
of  this  Convention — involving,  as  it  does,  the  in- 
terests and  welfare  of  every  class  of  the  commu- 
nity. Past  legislation  has  rendered  it  an  embar- 
rassing question.  We  have,  through  the  agency 
of  monied  corporations,  attempted  for  more  than 
half  a  century,  to  substitute  our  own  measure  of 
y.xlue  for  one  recognized  in  all  civilized  countries 
and  in  every  age  of  the  world,  as  a  universal 
standard.  The  experiment  is  not  new.  Govern- 
ments, ancient  as  well  as  modern,  have,  through 
state  necessity,  or  the  profligacy  of  monarchs, 
waged  frequent  wars  against  the  currency  estab- 
lished by  the  common  consent  of  nations  ;  but 
wherever  they  have  occurred  they  have  uniform- 
ly produced  bankruptcy,  poverty  and  crime. — 
Whatever  form  these  wars  have  assumed,  wheth- 
er by  debasing  the  coin,  issuing  government  bills 
of  credit,  01  bank  bills  of  credit,  under  govern- 
ment authority,  the  effect  has  ever  been  to  excite 
alarm,  paralyze  industry  and  suspend  the  employ- 
ments of  labor.  Whether  the  depreciation  is  in 
either  form  the  effect  on  the  community  is  essen- 
tially the  same,  varying  only  according  to  the 
extent  of  the  abuse.  The  tyrants  of  antiquity 
began  this  war  upon  the  currency  by  debasing 
the  coin — the  monarchs  of  China  and  Persia  re- 
newed it  in  the  13th  century,  in  the  form  of  bills 
of  credit,  and  in  both  forms  most  European  na- 
tions, from  time  to  time  continued  it.  But  Eng- 
land, of  all  countries,  has  suffered  most  from  an 
abuse  of  currency,  in  various  forms.  For  two 
centuries  her  Edwards  and  Henrys  debased  the 
coin  ;  and  for  generations  these  acts  of  tyranny 
were  followed,  to  use  the  language  of  the  histo- 
rian, "by  galling  oppression,  sanguinary  execu- 
tions and  right  sore  famine." 

It  was  reserved,  however,  for  our  more  en- 
IMitened  age  to  discover  a  new  mode  of  warfare 
against  the  currency  of  the  world,  by  bank  bills 
of  credit,  circulating  as  money  under  the  authori- 
ty of  government.  England  is  entitled  to  the 
credit  of  this  discovery.  It  sprang  out  of  state 
necessity,  in  1694,  when  the  Bank  of  England 
was  founded  on  a  government  loan.  Originally 
its  notes  were  of  large  denomination  and  not  de- 
signed to  circulate  as  coin  ;  but  even  then,  it 
suspended  specie  payments  in  two  years — in 
1745,  it  was  driven  to  the  necessity  of  paying  in 
six-pences  and  in  17SU  it  was  near  suspending 
a°-ain.  The  crisis,  however,  of  this  new  system 
o°  paper  money  occurred  in  1797,  when,  although 
the  baiik  issued  no  note, under  live  pounds  ster- 
ling, it  suspended  specie  payments  and  continued 
to  do  so  for  more  than  a  generation.-  From  that 
moment  confidence  was  destroyed  and  the  spell 


broken.  The  bank  finally  resumed  in  1821 — 
but  in  four  years-*-during  the  panic  of  1825-6,  it 
applied  to  ministers  for  an  order  to  suspend, 
which  was  refused.  In  1839  came  the  last  trial 
of  this  currency,  when  the  Bank  of  England  was 
saved  from  suspension  by  the  Bank  of  France, 
through  whose  agency,  a  loan  of  two  millions 
and  a  half  sterling,  was  negotiated. 

Satisfied  by  an  experiment  of  just  a  century 
and  a  half,  from  1694  to  1844,  that  the  more  a 
paper  currency  was  enlarged  the  weaker  and 
more  dangerous  it  became,  and  that  England  with 
her  immense  capital  and  resources,  must  in  every 
revulsion  rely  on  France  and  her  immutable  cur- 
rency— ministers  in  the  latter  year  surrendered 
the  question,  and  commenced  a  retrograde  move- 
ment. By  the  acts  of  1844,  the  currency  and 
business  departments  of  the  Bank  of  England 
were  separated  :  its  issues  limited  to  the  amount 
of  its  government  securities,  coin  and  bullion  ; 
and  the  banks  of  England  and  Wales  prohibited 
from  issuing  notes  beyond  the  average  amount  in 
circulation  within  a  given  time— being  two  mill- 
ions three  hundred  thousand  pounds  less  than 
their  circulation  in  1838.  No  new  bank  of  issue 
is  to  be  authorized,  and  banks  ceasing  to  issue 
notes,  are  prohibited  from  doing  so  again.  The 
Bank  of  England  may  compound  with  banks  of 
issue  to  withdraw  their  circulation,  and  may  is- 
sue their  own  notes  for  two  thirds  the  amount  so- 
withdrawn,  paying  the  government  the  net  profit 
on  all  issues  on  securities  beyond  fourteen  mill- 
ions— deducting  the  amount  paid  to  bankers  for 
withdrawing  their  issues.  In  1845,  the  circula- 
tion of  Scotland  and  Ireland  was  in  like  manner 
limited.  The  design  of  ministers  appears  to 
be  to  concentrate  in  the  Bank  of  England,  the 
whole  authority  to  issue  notes  in  England  and 
Wales,  and  still  further  to  reduce  the  aggregate 
circulation.  Such  is  the  result  of  this  protract- 
ed and  severe  contest  in  England,  between  paper 
and  coin.  After  a  struggle  lor  a  century  and  a 
half — after  enacting  statutes  relating  to  the  Bank 
of  England,  the  mere  titles  of  which  fill  more 
than  two  hundred  pages  of  the  index  to  the  stat- 
utes at  large — after  commencing  with  a  debt  of 
little  more  than  a  million  and  ending  with  one 
hopefully  irredeemable — after  a  succession  of 
revulsions  and  panics  from  generation  to  genera- 
tion, filling  a  country,  overflowing  with  wealth, 
with  bankruptcy,  poverty  and  crime,  and  reduc- 
ing the  peasantry  to  a  condition  more  wretched 
than  exists  in  any  other  civilized  land — after  all 
these  appalling  results,  ministers  at  last  discov- 
ered, that  an  unrestricted  issue  of  paper  money 
is  wholly  impracticable,  and  that  commercial 
credit,  though  sustained  by  government,  can 
never  permanently  contend  with  the  universal 
coin  of  the  world. 

What  is  the  history  of  our  experiment  to  sub- 
stitute paper  for  coin  ?  We  had  much  reason  to 
be  cautious  in  the  outset.  No  people  had  suffer- 
ed more  than  ours  during  the  revolution,  from  an 
issue  of  three  hundred  millions  of  bills  of  credit; 
and  every  precaution  was  taken  in  17b7,  by  the 
strongest  constitutional  guards,  to  protect  this 
country  from  the  ruinous  etiects  of  a  paper  cur- 
rency in  any  form.  In  the  strong  language  of 
Oliver  Ellsworth,  it  was  "  a  favorable  moment  to 
shut  and  bar  the  door  against  paper  money." — 


987 


The  states  were  prohibited  from  "  coining  money, 
omitting  bills  of  credit,  or  making  anything  but 
£old  or  silver  a  lawful  tender  in  payment  of 
,"  and  the  federal  government  was  refused 
the  power  to  emit  bills  of  credit,  or  to  grant  char- 
ters of  incorporation.  And  that  these  hard-mo- 
ney men  might  not  be  misunderstood,  the  first 
revenue  act  of  1789,  expressly  required  "that 
the  duties  and  fees  collected  by  virtue  of  this  act, 
shall  be  received  in  gold  or  silver  coin  only," 
thus,  as  it  was  supposed,  "  shutting  and  barring 
the  door  against  paper  money."  The  discovery 
was,  however,  soon  made,  that  it  was  lawful  to 
do  by  our  authorized  agent,  what  we  could  not 
constitutionally  do  ourselves,  and  all  our  govern- 
ments, state  and  federal,  established  their  incor- 
porated agents  throughout  the  union  to  emit  bank 
bills  of  credit  without  limitation,  and  to  expand 
and  contract  the  currency  at  their  pleasure.  The 
consequence  has  been  a  succession  of  revulsions 
and  panics,  producing  bankruptcies  and  crimes. 
The  mischiefs  of  this  paper  system  were  notper- 
ceptable  at  first,  the  amount  issued  being  incon- 
siderable, and  our  country  being  protected  by 
European  wars  and  the  suspension  by  the  Bank 
of  England  in  1797.  But  even  as  early  as  1808-9, 
and  long  before  the  bank  resumed  specie  pay- 
ments, this  paper  currency  exploded  in  New 
England,  with  disastrous  consequences.  During 
the  war,  all  the  banks,  out  of  New  England,  sus- 
pended— in  1818  there  were  partial  suspensions 
— in  1819  and  1825,  general  panics — in  1837, 
every  bank  in  the  union  stopped  payment,  and  in 
1839,  they  suspended  south  and  west  of  New 
York. 

In  twon'y-two  years,  from  1817  to  1839,  we 
have  had  no  less  than  eight  revulsions  or  periods 
of  partial  or  total  stagnation  of  trade  and  suspen- 
sion of  labor.  The  apprehension  of  war  for  two 
yeaVs  past,  has  suppressed  the  spirit  of  specula- 
tion, or  we  should  now  be  in  the  midst  of  anoth- 
er revulsion  ;  and  the  moment  peace  is  restored 
with  Mexico,  we  may  anticipate  a  sudden  expan- 
sion of  credit,  soon  to  be  followed  by  another  ex- 
plosion of  our  paper  system.  Such  must  forever 
be  the  calamitous  history  of  trade,  so  long  as  our 
currency  expands  and  contracts,  with  the  fluctu- 
ations of  commercial  credit  and  government  rev- 
enue ;  and  so  long  as  its  convertibility  depends 
on  the  absurd  fiction,  thaj  one  dollar  in  specie 
can  redeem  five  or  six  dollars  in  notes  and  de- 
posits. 

The  suspension  in  1837,  was  the  most  memo- 
rable and  disastrous  event,  which  has  occurred 
during  this  war  of  ours  upon  the  currency  of  na- 
tions, and  forcibly  illustrates  the  danger  and,  in- 
deed, impracticability  of  a  system  which  connects 
commercial  credit  and  public  revenue  with  bank 
notes  circulating  as  money.  Between  1834  and 
1837,  our  banking  capital  had  increased  ninety- 
one  millions,  the  deposits  near  fifty-two  millions, 
of  which  about  forty  millions  were  government 
revenue,  and  the  banks  had  increased  their  issues 
more  than  fifty-four  millions,  making  an  aggre- 
gate of  one  hundred  and  ninety-seven  millions. 
The  consequence  was  a  sudden  increase  of  their 
loans  from  three  hundred  and  twenty-four  mill- 
ions in  1834,  to  five  hundred  and  twenty-live 
millions  in  1837,  making  an  expansion  of  credit 
of  two  hundred  and  one  millions.  The  imme- 


diate effect  of  this  increase  was  a  simultaneous 
and  speculative  movement  throughout  the  union, 
and  an  excess  of  over-trading  unparalleled  in 
modern  times.  If  we  measure  the  contracts  of 
the  nation  by  this  enormous  increase  of  bank 
loans,  we  may  form  some  idea  of  the  countless 
millions  of  credits  exchanged  in  1835  and  '36, 
founded  upon  valuations  wholly  imaginary,  and 
ending  in  the  common  bankruptcy  of  individuals, 
banks  and  states.  Indeed  there  has  been  nothing 
like  it  since  the  South  Sea  and  Mississippi 
schemes  of  England  and  France  in  the  last  cen- 
tury. In  the  latter,  we  are  told  that  the  man 
who  was  one  day  a  millionaire,  could  not  the  day 
after,  buy  a  breakfast,  with  a  hundred  millions  of 
paper  in  his  pocket ;  and  our  great  capitalist  of 
1836  would  have  starved  in  1837,  had  he  depend- 
ed on  his  contracts  for  a  hundred  lythographic 
cities.  It  is  not  the  speculator,  however,  who 
suffers  most  from  these  periods  of  commercial 
delirium.  It  is  of  little  consequence  to  those  who 
are  perpetually  revolving  with  the  wheel  of  for 
tune.  Still  less  to  the  wealthy  capitalist — 
to  him,  on  the  contrary,  revulsions  are  profitable. 
It  is  the  capitalist  alone  who  revels  in  an  explo- 
sion of  credit.  While  the  wrecks  of  bankruptcy 
are  scattered  around,  he  and  he  alone,  has  money 
and  credit  enough  to  reap  the  periodical  harvest 
of  the  paper  system.  Far  otherwise  is  it  with  the 
laboring  classes.  Speculation  and  revulsion  are 
destructive  to  labor.  They  raise  prices  without 
increasing  quantities,  or  the  wages  of  labor. — 
While  they  give  no  additional  employment,  they 
increase  the  expense  of  living — the  succeeding 
panic  brings  all  industry  to  a  stand,  and  leaves 
the  artizan,  mechanic  and  laborer,  without  em- 
ployment and  their  families  without  bread,  suffer- 
ing all  the  pangs  of  famine,  in  a  land  overflowing 
with  every  blessing,  which  can  contribute  to  the 
comfort  and  happiness  of  man  !  Such  is  the 
harvest,  labor  every  where  reaps  from  the  paper 
system.  Well  may  we  exclaim,  in  the  language 
of  one  of  our  most  distinguished  men  : 

"  Of  all  the  contrivances  for  cheating  the  la- 
boring classes  of  mankind,  none  has  been  more 
effectual  than  that  which  deludes  them  with  pa- 
per money.  This  is  the  most  effectual  of  inven- 
tions to  fertilize  the  rich  man's  field  by  the  sweat 
of  the  poor  man's  brow.  Ordinary  tyranny,  op- 
pression, excessive  taxation,  these  bear  lightly 
on  the  happiness  of  the  community  compared 
with  fraudulent  currencies  and  the  robberies 
committed  by  depreciated  paper.  Our  own  his- 
tory has  recorded  for  our  instruction,  enough  and 
more  than  enough,  of  the  demoralizing  tendency, 
the  injustice  and  the  intolerable  oppression  on 
the  virtuous  and  well  disposed,  ot  a  degraded 
paper  currency,  authorized  by  law  or  any  way 
countenanced  by  government." 

If  our  state  governments  do  not  adopt  prompt 
measures  to  arrest  the  further  increase  of  our  pa- 
per currency,  the  scenes  of  1S35--6  and  7,  will 
soon  be  enacted  over  again.  Its  fluctuations  in  a 
generation  past,  indicate  another  crisis.  After 
the  expansion  and  speculations  following  the  war 
and  the  revulsion  of  1819,  the  amount  of  bank 
notes  issued,  was  reduced  in  18:21,  to  about  forty 
millions — it  rose  in  1837  to  more  than  a  hundred 
and  forty-nine  millions — being  an  increase,  of 
more  than  a  hundred  millions.  From  thisexces- 


988 


sive  expansion  it  was  reduced  in  six  years,  in 
1843,  to  fifty-eight  millions  and  a  half — a  sudden 
reduction  of  more  than  ninety  millions  of  dollars, 
and  in  the  last  three  years,  it  has  risen  again  to 
more  than  a  hundred  and  five  millions,  at  the 
A  rate  of  a  hundred  millions  in  six  years.  I  appeal, 
I  earnestly  appeal,  to  the  wisdom  and  patriotism  of 
\  this  Convention — I  entreat  gentlemen  to  reflect 
\  upon  these  excessive  and  violent  expansions  and 
.  contractions  of  our  currency — this  rising  of  a 
\.  hundred  millions,  and  falling  of  ninety  millions — 
r  this  sudden  increase  again  at  the  rate  of  a  hun- 
dred millions  in  six  years.  What  stability  can 
there  be  in  the  value  of  property  or  contracts — 
what  steady  employment  can  labor  expect — when 
the  artificial  standard  by  which  property,  con- 
tracts and  labor  are  measured,  is  thus  constantly 
and  violently  fluctuating,in  other  words  when  your 
currency  is  periodically  depreciated  by  an  over-is- 
sue of  paper  ?  What  would  be  thought  of  a  govern- 
ment which  should  attempt  to  meet  its  extrava- 
gant expenditures  by  debasing  its  coin,  or  depre- 
ciating its  measure  of  value,  ten  per  cent,  every 
ten  years  ?  Both  bring  industr>  to  a  stand,  and 
rob  labor  of  its  employment.  The  power  to  do 
either  is  fatal  to  the  welfare  of  the  community. 
And  yet  this  monstrous  power  to  violate  all  con- 
tracts and  prostrate  labor,  which,  wherever  exer- 
cised by  tyrants,  brought  upon  them  the  just  exe- 
crations of  mankind,  has  been  bestowed  by  the  le- 
gislatures oi  republican  governments  on  monied 
corporations  I  Government  dare  not  debase  its 
coin  ;  but  banks  are  invested  .with  the  sovereign 
privilege  to  depreciate  the  currency  at  their  dis- 
cretion ;  and  as  an  encouragement  to  perpetuate 
the  abuse,  they  are  authorised  to  levy  an  annual 
tax  upon  the  country,  nearly  equivalent  to  the 
interest  on  two  hundred  millions  of  circulation 
and  deposits.  While  this  privilege  is  enjoyed — 
while  our  bankers  have  the  power  to  create  mo- 
ney without  limitation— requiring  security  for  the 
circulation  to  protect  the  bill-holder,  is  a  mere 
mockery;  for  we  may  anticipate  a  succession  of 
expansions,  and  contractions  of  the  currency  at 
the  rate  of  a  hundred  millions  and  upVards  every 
six  years,  overthrowing  all  credit  and  prostrating 
every  branch  ot  industry. 

Such  a  system  of  banking  and  currency  was  ne- 
ver contemplated  by  the  bankers  and  legislators  of 
this  State  at  the  outset  of  our  government — they 
had  then  nothing  to  do  with  each  other,  and  for- 
tunate indeed  would  it  have  been  for  both,  and 
still  more  for  the  community,  had  the  separation 
continued  until  this  day.  The  first  bank  in  this 
State,  the  old  Bank  of  New  York,  was  a  voluntary 
association  formed  in  1784 — it  remained  such,  un. 
aided  and  unrestricted  by  government  for  seven 
years,  until  1791 ;  when  thesame  hand  which  drew 
the  charter  of  our  first  national  bank,  framed  the 
act  to  incorporate  the  Bank  of  New  York.  The 
framer  seemed  to  be  awate  that  bills  payable  to 
bearer  and  circulating  as  money,  were  bills  of 
credit,  and  they  were  therefore  made  "assignable 
bv  endorsemen!,"  and  not  redeemable  in  state  bills 
of  credit.  The  State  became  a  shareholder  This 
was  the  first  and  most  unfortunate  connection  of 
our  government  with  the  trade  of  banking.  In 
1804  the  war  commenced  between  free-banking 
and  privileged  corporations.  Prior  to  that,  the 
Manhattan  company,  though  chartered  lor  another 


purpose,  had  assumed  banking  powers.  An  asso- 
ciation had  been  foimed  in  New  York,  called  the 
Merchant's  Bank,  and  had  been  some  time  in  ope- 
ration, and  another  in  Albany— the  Mercaniile 
company.  The  influential  stockholders  in  the 
Manhattan  company  petitioned  the  Legislature  not 
to  grant  charters  to  these  companies  :  but  to  pro- 
hibit all  voluntary  associations  from  engaging  in 
the  business  of  banking.  -The  Legislature  accord- 
ingly in  1804  parsed  that  celebrated  and  extraor- 
dinary law,  called  the  restraining  act,  prohibiting 
under  severe  penalties,  all  associations  or  individ- 
uals, not  only  from  issuing  notes,  but  from  "re- 
ceiving deposits,  making  discounts  or  transacting 
any  other  business  which  incorporated  banks  may 
or  do  transact."  No  person  was  permitted  to  sub* 
scribe  to  any  such  association.  While  this  despo- 
tic measure  was  under  consideration  in  the  senate, 
a  proviso  was  added  that  it  should  not  affect  the 
Merchant's  Bank,  upon  condition  that  the  stock- 
holders should  be  '^personally  liable  as  in  the  case 
of  ordinary  partnerships;"  but  even  this  was  af- 
terwards lost.  Another  restraining  act  still  strong- 
er was  passed  in  1818.  These  abominable  re- 
straints  on  banking  continued  for  thirty-three 
years,  and  were  not  repealed  until  1837.  Such 
was  the  origin  of  our  banking  system — the  miser- 
able abortion  of  legislative  despotism  and  privi- 
leged monopoly.  Had  government  never  meddled 
with  the  quesjion — had  banking  bee»  left  as  free 
here  as  it  has  been  in  Scotland  for  more  than  a 
hundred  years,  it  would  have  grown  up  under  vo- 
luntary associations  more  profitable  to  them,  and 
infinitely  more  useful  to  the  community.  Com- 
petition would  have  compelled  them  to  allow  in- 
terest on  deposits,  uniting  as  the  Scotch  banks  do, 
the  business  of  trust  companies  for  eapitalists — 
savings  banks  for  the  poorer  and  laboring  classes, 
and  banks  ot  discount  for  the  merchant,  trader  and 
manufacturer.  Ours  might  have  had  in  time,  as 
theirs  have,  thirty  millions  sterling  in  deposits, 
more  than  half  of  which  is  in  sums  of  ten  to  two 
hundred  pounds — the  savings  of  the  poorer  and 
laboring  classes.  Such  is  the  admirable  result  of 
banking  when  free  from  every  legislative  contri- 
vance, and  wholly  independent  of  all  government 
control.  When  this  aseful  branch  ot  trade  acts 
as  the  voluntary  agent  of  the  community,  it  culti- 
vates frugality,  makes  the  savings  increase  the 
employment  of  labor,  d/aws  together  the  earnings 
and  dormant  capitals  of  every  class,  distributes 
them  to  every  branch  of  industry,  and  gives  acce- 
lerated velocity  to  the  anuual  accumulations  of 
national  wealth. 

Free  banking  is  one  thing— free-trade  in  the 
'manufacture  of  paper  money,  is  a  very  different 
affair.  I  have  always  been,  and  trust  I  shall  con- 
tinue to  be,  the  advocate  ot  iree-trade  and  the  na- 
tural rights  of  man  ;  but  I  have  never  advocated 
ithe  natural  right  of  monied  corporations  or  of 
bankers  to  circulate  their  own  credit  as  a  substitute 
for  coin,  in  violation  of  the  federal  constitution 
and  of  the  law  of  the  world.  Free  trade  in  the 
issue  of  paper  money  has  never  succeeded  any- 
vshere,  and  will  inevitably  fail  here,  notwithstand- 
ing the  opinion  of  some  intelligent  n.en,  that 
competition  would  coi reel  any  evils  resulting  from 
such  issues.  The  moie  free  the  manufacture  of 
paper,  the  more  it  is  enlarged,  and  as  the  amount 
increases,  revulsions  become  more  frequent  and 


989 


violent.  The  only  effect  ot  competition  is  to  en- 
courage over-issues  and  to  wind  up  this  excess  of 
credit  by  the  periodical  sacrifice  of  trade  and  la- 
bor. Neither  banks  nor  bankers  can  anywhere 
be  trusted  with  the  power  lo  create  money  with- 
out abusing  it,  and  indicting  serious  injury  on  the 
community.  The  example  of  Scotland  can  not 
be  relied  upon.  There  is  no  resemblance  between 
that  currency  and  ours.  Their  circulation  never 
passes  beyond  the  Tweed — they  have  no  note  un- 
der a  pound  sterling — their  issues  are  in  a  con- 
stant and  quick  process  of  redemption — less  liable 
to  excess,  and  act  more  as  a  medium  of  transfer, 
than  as  a  loan  of  credit.  But  the  currency  ol 
Scotland,  like  that  of  England,  depends  on  gov- 
ernment securities,  and  is  liable  to  the  same  sus- 
pension of  specie  payments.  It  is  sustained  by 
exchequer  bills  and  drafts  on  London,  while  the 
coin  of  the  continent  sustains  that  of  England,  and 
the  whole  paper  fabric  of  Great  Britain.  Had  the 
banks  of  Scotland  been  transferred  to  the  borders 
of  the  British  Channel  they  would  have  been 
among  the  first  to  suspend  ;  for  this  currency  can 
no  where  stand  in  conflict  with  coin,  amidst  all 
the  fluctuations  of  the  foreign  trade.  After  a  long 
trial,  the  experiment  has  failed  in  Great  Britain 
and  Ireland,  and  ours  has  had  no  better  success— 
for  we  have  had  repeated  suspensions  in  one  gene- 
ration. We  may  go  on  with  ours — we  may  pros- 
trate trade  and  labor  every  ten  years  by  an  exces- 
sive issue  of  paper  money  ;  but  after  a  series  of  re- 
vulsions and  panics,  and  a  vast  increase  of  pau- 
perism, we  shall  be  compelled,  eventually,  to 
abandon  our  war  against  the  currency  of  the  world 
and  limit  the  issues  of  our  paper  money,  as  they 
have  done  in  England,  Wales,  Scotland  and  Ire- 
land. This  auxiliary  medium  of  circulation  can 
be  perpetuated  in  no  country  without  limitation, 
the  only  measure  which  can  effectually  prevent 
over-issues,  and  moderate  the  evils  of  periodical 
over-trading. 

The  first  amendment  proposed  is  to  substitute 
I  general  for  special  laws,  leaving  bankers  at  liberty 
/to  form  associations  without  applying  to  the  Leg- 
^slature.  When  these  general  laws  are  applied  to 
thher  branches  of  trade,  the  power  should  be  ex- 
ercised with  great  caution  ;  for  if  there  is  no  limi. 
lation,  all  ordinary  partnerships  may  come  in  un- 
der general  laws,  trade  would  soon  become  a  lot- 
tery, and  under  a  limited  responsibility,  the  bank- 
rupt  partners  might  be  richer  than  their  creditors. 
General  laws  should  be  limited  to  such  purposes 
only,  as  cannot  well  be  accomplished  without  an 
association  of  capital,  and  such  as  special  charters 
would  have  been  granted  to  effect.  Further,  the 
Legislature  should  never  interfere  with  trade  — 
Indeed,  but  for  our  unwise  legislation,  which  has 
cultivated  the  growth  of  government  corporations 
there  would  be  no  necessity  for  such  laws,  special 
or  general,  in  relation  to  banking  or  any  other 
branch  of  trade;  and  the  interference  ot  govern- 
ment never  would  have  been  required,  unless  the 
sovereign  authority  was  necessary  to  effect  the  ob- 
ject  of  the  corporation.  Trade,  if  left  to  it>elf, 
would  have  found  its  own  expedients  to  accom- 
plish every  other  purpose,  whether  through  the 
agency  of  individual  or  associated  capital,  and  to 
any  amount,  wholly  independent  of  legislation.— 
The  progress  of  reform  may  eventually  leave  trade 
without  any  such  laws,  special  or  general,  and  en- 


tirely free  and  uncontrolled  by  government  regula- 
tion. 

The  second  proposition  is  to  prohibit  the  Legis-( 
latute  from  passing  any  act  sanctioning  the  sus- 
pension ot  specie  payments.  It  is  true,  that  in 
1837,  the  Legislature  did  not  directly  authorise  the 
suspension;  but  the  measure  adopted  indirectly 
sanctioned  it,  and  had  the  same  practical  effect, 
not  only  as  it  regarded  contracts  between  banks 
and  individual?,  but  between  the  banks  and  the 
State.  At  the  time  of  their  suspension  they  held 
more  than  five  millions  and  a  half  of  public  mo- 
ney. When  called  upon  to  pay  only  about  a  mil- 
lion of  that  in  specie,  or  the  premium  upon  it, 
they  refused,  and  the  loss  fell  upon  the  canal  fund; 
and  that  too  after  the  State  had  expended  $275,- 
000  for  premiums  on  the  debt,  paid  in  anticipation 
to  divide  the  payments  for  the  accommodation  of 
the  banks.  That  act  not  only  indirectly  sanction- 
ed the  suspension  of  specie  payments,  but  violated 
the  constitution  of  the  United  States.  The  federal 
constitution  prohibits  the  states  from  making  any- 
thing but  gold  or  silver  a  lawful  lender — the  sus- 
pension act  made  it  a  condition  that  the  banks 
should  receive  the  notes  of  each  other  in  payment 
ot  debts,  and  thus  gave  currency  to  irredeemable 
paper,  instead  of  compelling  them  only  to  recieve 
and  redeem  their  own  notes.  In  every  suspension 
of  specie  payments  our  laws  bhould  remain  un- 
changed. Our  monied  corporations  may  trample 
upon  them,  as  they  have  done  repeatedly;  but  the 
Legislature  should  have  no  power,  directly  or  in- 
directly, to  sanction  the  suspension,  or  to  partici- 
pate in  any  manner  in  violating  the  contracts  of 
the  community. 

Personal  liability  is  not  new  even  in  this  coun. 
try.  Our  first  bank  was  a  voluntary  association. 
The  principle  has  been  introduced  into  some  of 
our  modern  acts,  and  more  than  twenty  of  our  in- 
dividual  bankers  are  personally  liable  without  li- 
mitation. There  are  three  degrees  of  liability — 
first  for  the  notes  issued — second  for  an  amount 
equal  to  the  stock  of  each  shareholder,  as  in  the 
Ct  mmercial  Bank  of  this  city— and  third,  unlimi- 
ted liability,  as  it  has  existed  for  more  than  a  hun- 
dred years,  in  England  and  Scotland.  Responsi- 
bility for  the  circulation  only,  would  be  of  very 
little  importance,  while  security  is  held  for  the 
amount  of  notes  issued — if  not  unlimited,  it  should 
certainly  extend  to  an  amount  equal  to  the  shares 
of  each  stockholder.  This  is  indispensable  under 
our  present  system,  which  without  additional  re- 
sponsibility,  will  prove  a  failure.  As  it  now 
stands  we  offer  a  bounty  on  the  manufacture  of 
paper  money,  while  we  take  from  the  parties  the 
means>  to  redeem  it.  We  encourage  the  deposit 
of  securities  drawing  interest,  in  exchange  for 
bank  notes  to  be  loaned — thus  producing  nearly 
double  interest  on  the  same  capital — while  the 
most  available  means  of  the  banker  are  locked  up 
here  beyond  his  reach,  rendering  his  suspension 
more  certain  at  every  commercial  crisis.  It  would 
be  exceedingly  unwise  to  perpetuate,  by  a  consti. 
tutional  provision,  a  system  which  thus  encoura. 
ges  the  increase  of  paper  money,  and  weakens  the 
banks  at  home,  where  alone  the  pressure  will  be 
felt.  Unlimited  personal  liability,  relinquishing 
these  securities,  would  be  infinitely  preferable  to 
the  present  system  ;  for  the  credit  of  the  banks 
would  then  rest  on  a  broad  and  firm  basis  ;  and  in 


990 


possession  of  all  their  available  means,  they  would 
be  better  prepared  to  meet  any  demand  which 
might  be  made  upon  them.  If  we  mean  to  keepi 
the  securities  for  the  circulation,  we  must  extend 
the  personal  liability  to  strengthen  the  banks 
wherever  they  are  lo'cated.  The  private  resources 
of  the  partners  must  be  brought  in  to  sustain  the 
bank,  or  it  must  inevitably  stop  payment.  At 
present  the  lar*e  bill-holder  who  can  send  his 
bills  to  Albany,  may  be  protected;  but  it  affords 
little  protection  to  the  small  bill-holder,  who  can- 
not do  so — extend  the  liability  and  you  protect 
both,  by  sustaining  ihe  bank.  We  are  bound  by 
other  considerations  to  strengthen  the  security  ol 
the  banks.  We  have  made  them  the  authorized 
agents  of  the  State — we  hold  then  plates  and  their 
funds — the  notes  are  countersigned  at,  and  issued 
from  the  Comptroller's  office — they  go  forth  with 
cut  endorsement,  and  we  thus  give  these  banks  a 
fictitious — nay,  a  State  credit,,  which  secures  the 
confidence  of  the  community, and  they  become  the 
trust. holders  of  the  money  of  all  classes  whose  in- 
terests we  are  bound  to  protect  from  the  insolven- 
cy of  our  agents.  Unlimited  responsibility  is  the 
best  substitute  tor  our  present  system.  Voluntary 
associations  on  that  principle,  began  in  Scotland 
more  than  a  century  ago.  They  would  have  ex- 
tended to  England  but  for  the  act  of  1708  which 
limited  the  number  of  partners  to  six,  to  protect 
the  monopoly  of  the  Bank  of  England.  When 
that  restriction  was  removed  in  1826,  such  asso- 
ciations were  immediately  formed,  and  the  latest 
publication  I  have  seen,  gives  a  list  of  one  hun- 
dred and  ten  joint  stock  associations,  and  506 
branches  in  England  and  Wales,  with  from  eleven 
to  one  thousand  partners.  Banking  in  Great  Bri 
tain  rests  on  a  broad  security,  is  conducted  with 
greater  skill  and  economy,  and  yields  larger  divi- 
dends to  the  stockholders,  notwithstanding  their 
low  rate  of  interest,  than  in  the  United  States. 

But  as  we  have,  in  this  state,  security  for  the 
issues — whether  we  continue  the  present  plan  ot 
actual  deposits  or  restore  the  safety  fund  system, 
which  experience,  I  think,  will  prove  to  be  the 
better  for  the  banks  and  the  community — a  limi- 
ted personal  responsibility  to  the  amount  of  the 
shares  ot  each  stockholder,  will  place  the  credit 
of  our  banks  on  a  more  solid  foundation.  Thai 
provision  is  in  the  charter  of  the  Commercial 
Bank  of  this  city,  and  the  same  principle  was  em- 
bodied in  the  act  of  the  22d  of  March,  1811,  and 
applied  to  certain  trading  companies.  It  is  some 
what  extraordinary  that  it  never  should  have  been 
applied,  until  recently  and  in  one  instance,  to  the 
trade  of  banking,  in  which  the  whole  commu:iity 
have  so  deep  an  interest.  That  liability  has  saved 
the  Commercial  Bank  and  many  of  our  trading 
companies  from  bankruptcy,  and  had  it  been  ap- 
plied to  all  our  banks,  tor  the  last  thirty-five  years 
it  would  have  saved  many  that  have  become  bank- 
lupt.  As  i-l  is  desirable  to  place  all  banks  on  the 
same  footing,  it  is  proposed  that  the  liability 
should  commence  on,  and  apply  to  all  debts  con 
trac'ed  after,  the  1st  of  January,  1850. 
i  Were  this  an  original  question,  I  should  prefer 
\  dissolving  ail  connection  between  our  governmen 
\  and  the  banks,  and  recommend  the  provision  adop-» 
ted  last  year  by  the  convention  of  Louisiana.  The 
severe  losses  of  that  state — where  a  debt  has  beer 
incurred  of  near  twenty  millions  by  banking—has 


ntroduced  the  most  salutary  reform — they  deny 
heir  legislature  the  power  to  create  or  renew  any 
bank  charter.  Other  states  have  since  adopted  a 
similar  provision.  Fortunate  would  it  be  for  us. 
were  we  in  a  condition  to  adopt  the  same  wise  po- 
licy— but  this  paper  currency  is  so  interwoven 
with  our  commercial  system,  we  are  driven  to  the 
necessity  of  providing  the  best  remedies  we  can. 
Besides  those  referred  to,  other  measures  are  ne* 
cessary.  All  notes  which  are  substitutes  for  our 
gold  and  silver  coin,  should  be  excluded  from  cir- 
culation. It  is  of  little  importance  to  the  people 
of  the  United  States,  to  have  expended  millions  on 
our  mint  establishments  to  secure  for  their  use  an 
enlarged  and  sound  metallic  currency,  if  our  coins 
are  to  be  driven  from  circulation  by  the  end  it  of 
bankers  circulated  as  money.  In  no  other  coun- 
try but  ours,  are  all  coins  except  the  fractions  of  a 
dollar,  banished  from  circulation.  If  our  curren- 
cy is  to  be  wholly  and  permanently  regulated  by 
our  bankers,  we  had  belter  abolish  our  mints  and 
save  this  annual  tax  upon  the  people  for  the  ex- 
clusive bertefit  of  our  moneyed  corporations.  The 
circulation  of  the  notes  of  banks  of  other  states 
should  also  be  prohibited,  and  all  the  states  should 
adopt  the  same  policy.  Without  this  mutual  re. 
striction,  there  can  be  no  limitation  of  currency, 
and  no  security  against  over-issues.  Notes  circu- 
lating at  a  distance  are  seldom  if  ever  redeemed, 
and  form  the  worst  part  of  our  currency,  which 
they  increas-e  and  depreciate  in  defiance  of  any 
limitation  or  regulation  of  our  own.  It  is  in  vain 
to  attempt  to  restrict  over  issues,  while  the  notes 
of  other  states  circulate  with  ours.  We  prohibit 
our  banks  from  receiving  them,  but  that  only  en- 
larges  their  circulation  among  traders.  We  thus 
give  currency  to  the  notes  of  some  ol  ihe  weakest 
banks  in  neighboring  stales,  for  which  we  have  no 
security,  and  discourage  the  circulation  of  our  own 
notes,  though  secured  by  stocks  and  bonds  to  prc- 
tect  bill-holders!  If  we  must  have  a  paper  cur- 
rency, it  is  certainly  proper  to  have  that  only 
which  we  can  preserve  sound;  and  one  which  we 
can  regulate,  control  and  limit.  Whenever  the 
other  states  shall  judiciously  limit  the  amount  of 
their  issues  and  require  security  for  their  redemp- 
tion, such  prohibition  will  be  unnecessary.  To 
limit  the  amount  of  notes  issued,  is  the  most  im- 
portant provision  that  can  be  adopted.  This  is 
the  only  effectual  safeguard  to  protect  the  commu- 
nity from  constant  and  excessive  fluctuations  aad 
to  prevent  a  progressive  augmentation  of  paper 
money.  During  the  last  twelve  years  these  fluc- 
tuations in  our  currency  have  been  detrimental  to 
every  interest.  In  1834  the  issues  of  the  banks  of 
this  state  exceeded  fifteen  millions — in  three  years 
they  increased  to  more  than  twenty-lour  millions, 
in  1837,  when  the  banks  suspended  specie  pay- 
ments— the  next  year,  1838,  they  fell  to  a  little 
over  twelve  millions — the  year  alter  rose  again  to 
more  than  nineteen  millions  in  1839,  and  in  1840 
fell  again  to  about  eleven  millions.  Since  then 
(his  currency  has  been  steadily  increasing,  and  in 
May  last  had  reached  near  twenty-one  millions. — 
The  war  with  Mexico  has  for  the  moment  checked 
its  increase,  but  the  whole  amount  created  from 
time  to  time  by  the  incorporated  banks  and  issued 
by  the  Comptroller,  is  more  than  twenty-eight 
millions  and  a  half,  including  the  small  portion 
which  may  have  been  lost  or  destroyed.  Between 


991 


Dine  and  ten  millions  of  these  notes  are  in  the  pos- 
Segsion  of  the  banks,  and  as  soon  as  peace  with, 
Mexico  is  restored  and  speculation  begins,  thev 
will  he. issued  loan  excess  beyond  thai  existing  in 
.  producing,  a^  it  did  then,  an  explosion  of 
the  <MMTency.  Had  t;  -  been  limited  by 

our  laws,  such  extraordinary  expansions  and  con- 
tractions of  this  artificial  measure  of  value,  could 
not  have  occurred.  Issued,  as  they  now  are,  by 
the  Comptroller,  the  amount  could  never  have 
risen  so  high  nor  fallen  so  low;  the  course  of  trade 
would  have  been  more  uniform,  and  commeraial 
credit  and  bank  credit  would  not  have  been  mutu- 
ally stimulated  by  speculation  to  expand  and  de- 
stroy each  other.  Without  some  limitation — not 
exceeding  twenty  millions — this  modern  auxiliary 
medium  of  circulation  cannot  be  sustained — sus- 
pension must  ever  follow  over-issue,  and  the  a- 
inounf  will  be  progressively  augmented — increas- 
ing the  embarrassments  of  trade  and  the  violent 
effect  of  revulsions  on  every  class  ot  the  com- 
munity. 

The  currency  of  this  State  is  important,  not 
only  to  ourselves,  but  to  the  whole  Union,  owing 
to  our  position  and  our  commercial  relations,  for- 
eign and  domestic.  Our  commercial  capital  is 
the  centre  of  exchanges,  internal  and  external, 
and  must  necessarily,  at  every  crisis,  bear  the 
whole  pressure  of  commercial  credit.  When  our 
bank  issues  are  too  much  expanded  and  over  trad- 
ing brings  exchanges  against  us,  specie  will  flow 
out  from  New  York — there  the  alarm  will  begin 
and  there  will  be  the  first  suspension  of  specie 
payments.  If  we  go  on  without  any  limitation 
on  the  amount  of  this  currency,  such  an  event, 
and  at  no  distant  day,  is  unavoidable.  I  trust  we 
shall  adopt  efficient  measures  to  avert  such  a  ca- 
lamity, not  only  to  protect  our  commercial  inter- 
ests from  such  vicissitudes,  but  our  laboring  class- 
es from  the  excesses  of  our  paper  system.  It 
cannot  be  denied,  that  in  our  legislation  in  this 
country,  we  have  adopted  the  maxirn  of  monar- 
chy, that  property  is  the  primary — nay  the  sole 
object  of  government.  We  have  not  only  clothed 
it  with  extraordinary  privileges  ;  but  armed  it 
with  the  federal  power  to  regulate  the  currency, 
and  with  a  power  to  be  found  in  none  of  our  con- 
stitutions— the  formidable  power  to  create  money. 
Labor,  on  the  contrary,  the  origin  of  all  wealth, 
has  not  only  been  wholly  disregarded,  but  tram- 
pled upon.  It  solicits  no  privileges — it  asks  only 
for  a  sound  currency  to  secure  to  trade  steady 
profits  and  for  itself  steady  employment.  It  has 
a  right  to  expect,  that  the  moriied 'interest,  pow- 
erful as  it  is,  will  not  be  armed  with  the  authori- 
ty to  suspend  all  labor  every  ten  years  by  depre- 
ciating the  currency,  and  suddenly  arresting  eve- 
ry branch  of  industry.  It  has  a  just  right  to  anti- 
cipate that  this  convention  will  interpose  the  so 
vereign  power  of  the  state,  as  a  shield  to  protect 
the  laboring  classes  from  the  abuses  resulting  from 
the  substitution  of  the  credit  of  bankers  for  the 
current  coin  of  the  world.  But  whatever  may  be 
our  measures,  I  hope  we  shall  all  unite  in  an 
earnest  and  patriotic  desire  to  provide  the  strong- 
est constitutional  guards  against  future  explosions 
of  our  currency — and  to  place  the  welfare,  for- 
tunes and  labor  of  all  classes,  on  some  foundation 
more  solid  and  secure  than  a  fluctuating,  progres- 
sive and  unlimited  issue  of  paper  money. 


l\lr.  AYRAULT  said  that  he  felt  bound  to  re. 
new  his  motion  to  lay  the  report  upon  the  table, 
and  that  it  be  printed.  If  any  argument  was 
needed  in  defence  of  this  motion,  the  Convention 
had  been  favored  with  it  in  the  veiy  able  speech 
just  delivered  by  the  gentleman  Horn  Sufiulk — 
(Mr.  CAMBRELENG) — and  he  trusted  that  that 
gentleman  would  again  consent  to  Hie  short  delay 
i hat  was  desired.  That  gentleman  (Mr.  CAM- 
BRELENG) had  to-day  demonstrated  the  vast  im- 
portance of  this  subject,  and  that  it  was  one  wor- 
thy of  the  greatest  deliberation.  Now,  upon  one 
great  principle  contended  for  by  Mr.  CAMBREL- 
ENU,  he  (Mr.  AYRAULT)  would  go  to  the  fullest 
extent  with  the  honorable  member  trom  Suffolk  ; 
that  was,  to  provide  the  amplest  security  to  the 
community. 

If  the  Convention  would  consent  to  the  adoption 
of  only  the  first  section,  as  at  present  presented 
by  the  honorable  gentleman,  (Mr.  CAMBRELENG) 
and  leave  the  rest  to  the  Legislature — as  aJl  that 
followed  (the  subsequent  suctions)  being  strictly 
matters  ot  legislation — he  (Mr.  AYRAUJLT)  would 
be  satisfied.  But,  he  said,  that  if  we  go  on  and 
adopt  other  sections,  it  appeared  th^y  differed 
much  in  the  details  The  gentleman  from  Suffolk 
(Mr.  CAMBRELENG)  says  that  he  would  redeem 
all  notes  in  specie;  and  in  his  argument  he  tells 
us  how  he  would  secure  this  :  that  is,  in  the  way 
ot  pledging  securities — as  a  portion  of  our  bank- 
ing is  riow  conducted.  He  (Mr.  AYRAULT)  dif- 
lered  with  that  gentleman  (Mr.  CAMBRELENG)  as 
to  that  mode  being  the  most  secure  to  the  com- 
munity. And  he  (Mr.  A.)  was  very  sure  that  all 
past  experience  had  shown  that  he  was  right  - 
The  deposit  of  securities  with  the  Comptroller 
had  certainly  not  proved  judicious  in  practice. 
The  capital  should  always  he  within  control  of 
those  who  issue  the  circulation  of  thestate.  Then 
firmness  and  stability  would  be  given  to  the  com- 
mercial community,  as  they  would  bave something 
substantial  to  fall  back  upon  in  the  way  of  capital, 
instead  ot  testing  on  the  credit  of  circulation  only. 

At  present,  the  banking  system  under  the  ge- 
neral banking  law  was  based  wholly  upon  credit. 
It  does  not  require  the  employment  of  capital  to 
the  amount  of  a  dollar  in  the  transaction  of  busi- 
ness. There  is  no  capital  in  the  business  of  the 
banker  for  those  banks  to  rest  upon.  WThatever 
the  capital  may  be,  it  should  at  all  times  be  im- 
mediately available  to  the  bank.  Our  own  state 
stocks,  which  so  many  favor  as  the  basis  of  bank- 
ing, will  soon  be  out  of  the  market,  as  we  have 
by  this  very  constitution  provided  for  the  p;iv- 
ment  of  our  entire  debt.  As  it  has  been,  our  own 
stocks  have  been  forced  to  a  sale  to  redeem  notes 
of  broken  banks  at  a  depreciation  of  eleven  and 
a  half  per  cent.  That  is  an  average  of  the  ag- 
gregate depreciation.  Besides  this,  bonds  and 
mortgages,  perfectly  good,  have  been  in  like  man- 
ner, forced  t^a  sale  at  an  aggregate  depreciation 
of  over  80  oWK  per  cent.  All  this  has  resulted 
in  a  serious  loss  to  the  bill  holders  in  the  com- 
munity. The  direct  losses  to  the  community 
from  these  sources  alone,  have  amounted  to  about 
sl."),ouu  a  year,  besides  the  loss  u>  individuals,  in 
sale  of  notes,  and  to  the  stock  holders.  The  most 
safe  system  in  his  (Mr.  AYRAULT'S)  judgment, 
was  one  that  employed  capital,  like  our  "  safety 
fund  system."  Prohibit  special  charters,  but 


992 


pass  a  general  law  which  he  (Mr.  A.)  was  in  fa 
vor  of,  and  that  was  all  that  was  required.  Th< 
community,  as  such,  had  not  been  subjected  t< 
the  loss  of  a  single  dollar  from  the  safety  func 
system,  except  individuals  may  have  sold  in  timi 
of  panic  and  alarm  notes  at  a  discount.  But,  i 
the  securities  now  deposited  with  the  Comptrol 
ler  should  be  forced  to  a  sale,  (a  thing  I  do  no 
expect)  at  the  rate  they  were  heretofore  sold,  ii 
could  not  be  done  with  less  than  a  direct  loss  of 
about  a  million  of  dollars  to  the  community  in 
the  redemption  of  notes  issued.  He  (Mr.  A/ 
desired  to  see  some  amendments  to  this  report 
and  for  this  purpose  he  asked  delay.  He  there- 
fore renewed  the  motion  to  lay  on  the  table  anc 
to  print. 

Mr.  CAMBRELENG  assented  that  the  con- 
sideration of  his  report  should  be  postponed  unti] 
to-mbrro w  at  10  o'clock,  and  desired  that  it  should 
be  printed. 

Mr.  AYRAULT  moved  to  amend  by  postpon- 
ing until  half-past  3  o'clock  to-morrow ;  believ- 
ing that  such  postponement  would  furnish  but 
quite  as  short  a  time  as  was  absolutely  necessary 
for  its  examination. 

Mr.  JONES  was  opposed  to  any  postponement 
whatever.  There  was  but  a  single  proposition 
in  the  new  report  that  was  not  contained  in  the 
original  printed  document.  He  therefore  could 
see  no  propriety  either  in  delaying  or  in  printing. 

Mr.  AYRAULT  agreed  to  move  to  postpone 
the  consideration  of  this  subject  until  half-past  3 
o'clock  to-morrow,  provided  it  was  printed  to- 
day 

Mr.  STETSON  said  that  if  this  was  to  be  put 
off  till  to-morrow,  then  Mr.  AYRAULT  might 
bring  in  an  amendment,  and  then  somebody  else 
might  ask  to  delay  the  consideration  of  his 
amendment  till  they  had  time  to  consider  it;  and 
so  they  might  go  on  and  postpone  the  matter  in- 
definitely. 

Mr.  SHEPARD  followed,  and  strongly  pro- 
tested against  delay.  It  was  too  important  a  sub- 
ject to  be  put  off. 

Mr.  TOW'NSEND  said  he  could  not  agree  to 
any  postponement  of  this  question,  and  he  differ- 
ed with  his  honorable  colleague  otthe  committee, 
(Mr.  CAMBRELENG,)  in  the  propriety  of  assent- 
ing to  the  proposition  of  delay  made  by  the  gen- 
tleman from  Livingston  (Mr.  AYRAULT.)  It  had 
been  well  stated  that,  if  there  was  any  weight  in 
the  objection  that  the  sections  were  not  all  print- 
ed in  the  precise  form  that  the  chairman  of  the 
committee  now  presented  them,  it  would  apply 
with  equal  force  to  the  consideration  of  every  pro- 
position that  might  be  made  to  amend  the  report 
when  in  Convention.  The  gentleman  from  Liv- 
ingston (Mr.  AYRAULT)  has  gone  somewhat  out 
of  his  way  to  condemn  the  Free  Banking  Law, 
and  instituted  some  unfavorable  comparisons  be- 
tween the  old  privileged  system — jJiat  of  char- 
ters—and  institutions  operating  undw  the  law  of 
'38,  and  the  actsiri  its  modification.  The  gentle- 
man had  stated  that  these  latter  institutions  could 
be  formed  without  the  presence  of  real  capital;  he 
had  certainly  gone  very  wide  of  the  mark  in  this 
assertion.  It  had  been  Mr.  T.'s  good  or  ill  fortune 
to  be  an  actor  in  the  Legislative  scenes  of  1842, 
when  the  stock  of  our  State  reached  its  lowest 
point ;  that  of  22  per  cent  below  par,  for  a  5  per 


cent  stock.     At  this  dark  period  of  the  State  cre- 
dit, he  never  knew  of  any  opportunity  of  obtain- 
ing  the  bonds  of  the  State  upon  credit,  or  for  else 
than  cash  or  its  equivalent.     Now,  as  no   institu- 
tion  under  the  act,  could  be  organized  since   the 
act  of  May,  1840,  without  having  in  possession,  at 
least  $50,000  ot  the  stock  of  our  State,  it  was  al- 
tered  to  say  that  the  act  did  not  require  the  pre« 
sence  of  bona  fide  capital  at  the  formation  of  *  in- 
stitutions, under  its  provisions.     This  was  throw- 
ing  out,  now,  t  he  requirement  as  to  bond  and  mort- 
gages, under  the  strict  provisions  of  which,  if  the 
State   officers  do   their  duty,  such  as  are   pledged 
for  circulation,  would   command  nearly  their   par 
value   in  cash    at  a  forced  sale.     The   gentleman 
had  stated  that  the  community  never  lost  a  dollar 
by  the  Safety  Fund  System  ;  Mr.  T.  was  compelled 
to  make  a  direct  issue  with  him  as  to  this  state- 
ment. He  remembered  distinctly,  that  when  in '42 
he  had  the  honor  of  bringing  the  plan  of  registering 
of  the  safety  fund  notes  before  the  legislature  in 
view  of  the  great  frauds  in  the  circulation  of  the 
Buffalo  Banks — the  notes  of  some  of  the  broken 
banks  of  that  system  were  then  selling  at  the  Ex- 
change in  New  York  at  auction  at  but  60c  on  the 
dollar.     When  the  gentleman  from  Ontario  (Mr. 
WORDEN)   a  few   evenings  since — a  gentleman 
whose  ideas  of  finance  and  banking  were  in  close 
union  with  the  gentleman  from  Livingston, — had 
uttered,  with  no  particular  reference  to  the  ques- 
tion before  the  Convention,  similar  views,  he 
had  promptly  called  attention  to  the  fact  that  by 
a  report  from  the  Comptroller,  long  upon  our  ta- 
ile,   (Convention  doc.  34,)  the  direct  losses  in- 
flicted upon  the  community,  including  stock  hold- 
ers, since  the  year  1840  by  the  safety  fund  system 
had  approximated  to  seven  millions  of  dollars. 
The  security  of  that  system  at  the  present  time, 
so  much   lauded  by  the  gentleman  from  Living- 
ston, would   be  best  appreciated  by  the  annexed 
extract,  from  page  3  of  the  document  in  question : 
'  The  future  contributions   to  the  Safety  Fund, 
which  were  not  commuted  for  under  the  act 
chapter  24)  of  the  laws  of  1842,  have  been  an- 
icipated  by  the  issue  of  stock  for  the  payment  of 
;he  debts  of  the  nine  banks  which  failed  prior  to 
1843,  as  provided  for  by  the  act,  chap.  114  of  the 
aws  of  1845.     The  safety  fund   therefore  is  used 
up  and  mortgaged  for  liabilities  already  incurred, 
.nd   there  is   no  provision   which   can  be  made 
vailable  for  the  redemption  of  the  notes  of  the 
safety  fund  banks,  which   may  become  insolvent 
lereafter."     With   these  facts  in  a  reliable  form 
efore.us,  he  could  not  excuse  the  gentleman  for 
assailing  the  institutions  operating  under  the  free 
system,  as  not  affording  equal  security  with  those 
under  special  charters.     Under  the  admonitions 
hat  he  had  quoted  from  a  public  officer,  who  had 
•ften,  in  Mr.  T.'s  opinion,  given  the  safety  fund 
tanks  evidence  that  he  was  not  their  enemy,  he 
bought  the  public  would  soon  understand  which 
>f  the  two  systems  afforded   them  the  best  secu- 
ity.     He  spoke  of  the  matter  as  between  two  sys- 
ems,  not  with  reference  to  particular  institutions. 
rrom  his  own  knowledge  he  believed  that  a  very 
arge  portion  of  the  safety  fund  banks  were  and 
vould  remain,   particularly  if  the  article  of  the 
gentleman  from  Suffolk  is  adopted,  perfectly  sol- 
vent— but  if  his  opinion  were  invoked  as  to  the 
>est  of  the  two  modes  he  would  give  his  most  un- 


993 


qualified  preference  for  the  free  banks  as  aftbrd- 
ino;  the  best  security  for  the  public,  particularly 
in  the  matter  of  circulation.  He  would  not  de- 
tain the  Convention  longer,  for  he  had  risen  only 
to  set  the  gentleman  from  Livingston  right,  and 
to  urge  the  chairman  of  his  committee  (Mr.  CAM- 
BRELENG)  not  to  consent  to  allow  any  farther  de- 
lay in  postponing  the  consideration  of  the  report 
of  the  currency  committee. 

Mr.  AYRAULT  desired  to  say  no  more  upon 
the  subject  of  a  short  postponment— and  he  re- 
gretted to  feel  it  necessary  to  say  a  word  in  reply 
to  the  gentleman  from  New  York,  Mr.  T.,  and 
sir — I  deny  to  having  gone  out  of  my  way  to  con- 
demn free  banking — but  on  the  contrary  I  have 
declared  myself  here  and  elsewhere  in  favor  of 
free  banking  and  opposed  to  special  charters — I 
also  deny  assailing  the  institutions  in  operation 
under  the  free  system,  and  I  further  deny  that  the 
gentleman  has  correctly  quoted  from  the  docu- 
ment to  which  he  alludes — and  when  I  have  sta- 
ted the  facts,  I  will  have  the  gentleman  to  settle 
with  himself,  for  I  shall  make  no  issue  with  him, 
neither  am  I  indebted  to  him  for  setting  me  right 
upon  any  subject.  The  gentleman  in  quoting 
from  the  document  uses  these  words  :  The  di- 
rect loss,  inflicted  upon  the  community,  inclu- 
ding stockholders  approximates,  to  $7,000,000 — 
here  again  I  deny  any  such  language  or  tacts  are 
to  be  found  in  the  document — but  the  nearest  to 
it  is  as  follows  : 

The  capital  of  the  eleven  Safety  Fund  Banks  which 
hare  failed  amounts  to  a  total  of  $3, 1 50,000.  These  banks 
iiave  paid  into  the  Safety  Fund  $86,-279  42;  and  there  has 
been  paid  from  the  Safety  Fund  on  account  of  nine  of  them 
thesumef  $2,447,997  41. 

The  Safety  Fund,  therefore,  is  used  up  and  mortgaged 
for  liabilities  already  incurred,  and  theie  is  no  provision 
which  can  be  made  available  for  the  redemption  of  the 
cotes  of  Safety  Fund  banks  which  may  become  insolvent 
•hereafter. 

Thus,  it  is  shown  that  the  total  loss  is  about 
$5,600,000,  and  that  every  dollar  has  been  sus- 
tained by  the  banks.  I  cannot  find  the  word 
•"  community"  contained  in  the  report,  much  less 
as  connected  with  these  losses.  Mr.  A.  reitera- 
ted his  former  statement,  that  it  was  true  the 
community,  as  such,  had  never  lost  by  the  circu- 
lation under  the  safety  fund  system  ;  individuals 
may  have  sold  their  notes  at  a  discount,  but  it 
was  unnecessary,  as  every  dollar  had  been  re- 
deemed at  par.  And  if  no  more  failures,  the  con- 
tributions yet  to  be  made  would  leave  on  the  final 
settlement  at  the  expiration  of  the  charters,  a  ba- 
lance of  about  $250,000,  to  be  divided  among  the 
banks  contributing.  Now,  sir,  what  do  we  find 
in  the  same  document,  in  relation  to  the  good 
banks  which  the  gentleman  from  New  York,  in 
his  sense  of  propriety,  has  omitted — it  is  as  fol- 
lows : 

At  the  time  of  failure  these  twenty-nine  banks  had  in 
circulation  notes  to  the  amount  of  $1,233,374. 

On  these  notes  the  payments  were  equal  to  an  average 
Of  76  per  cent;  the  total  loss  to  bill  holders  being  $292, 
344  36,  a*  shown  in  the  last  column  of  Table  D.  It  i 
thus  shown  that  while  the  banks  have  lost  $601,966  25, 
on  that  portion  of  their  securities  deposited  with  the  Comp. 
trailer,  the  holders  of  th*>ir  notes  have  lost  $-29-2,344  36,  or 
a  fraction  less  than  24  per  cent  on  the  amount  in  circula 
tion  at  the  time  ol  the  failure  «f  the  banks  respectively. 

Now,  sir,  does  this  say  the  community  or  bill- 
holder  have  never  lost  a  dollar  ?  No,  sir ;  but  it 
says  the  [bill-holders  have  lost  $292,344.  The 

99 


gentleman  from  New- York,  (Mr.  T.,)  it  appears, 
is  for  making  a  Constitution  that  protects  the 
aanks  and  bankers,  instead  of  protecting  the  com- 
munity, the  poor  bill-holder.  In  my  judgment, 
it  is  quite  enough  to  protect  the  community,  and 
let  the  stockholders  take  care  of  themselves.  It 
is  a  new  principle  that  we  are  to  protect  bankers 
at  the  expense  of  the  community.  The  gentle- 
man would  also  have  us  understand  he  is  in  fa- 
vor of  a  specie  currency,  while  in  fact  he  is  in 
favor* of  banking  on  credit — that  is,  paper  circu- 
lation only — while  I  am  in  favor  of  employing 
capital,  paid  in  specie  or  its  equivalent,  as  a  ba- 
sis of  banking.  The  gentleman  (Mr.  T.)  figuring 
at  Albany  in  the  dark  period  of  the  State  credit, 
and  in  aid  of  its  restoration,  and  in  forming  bank- 
ing laws,  I  leave  to  his  own  imagination.  The 
public  appreciate  his  valuable  services. 

Mr.  MANN  said  he  was  opposed  to  any  post- 
ponement of  this  subject.  The  whole  report  ex- 
cept one  short  section  was  already  printed  and 
before  us,  in  report  No.  38  and  56.  And  there 
was  no  occasion  to  defer  this  important  matter  for 
the  purpose  of  printing.  If  gentlemen  would  do 
as  he  (Mr.  M.)  had  done,  take  report  No.  38  and- 
56,  write  one  short  sentence  to  come  in  between* 
the  two  reports,  which  could  be  done  by  every 
member  in  five  minutes,  he  would  have  an  exact 
copy  before  him.  Therefore  there  could  be  no 
necessity  to  reprint ;  he  hoped  gentlemen  would 
take  this  course  and  go  on  with  the  report  with- 
out further  delay.  He,  Mr.  M.  would  oppose  any 
such  delay,  and.  hoped  the  motion  to  postpone  and 
print  would  not  prevail. 

Mr.  CAMBRELENG  said  that  there  was  no 
new  section  in  this  report  as  now  presented;  and 
he  was  surprised  that  gentlemen  should  express 
themselves  unprepared  to  consider  it  now. 

Mr.  SWACKHAMER  had  always  believed  that 
the  duties  of  government  were  plain  and  Tree  — 
When  it  had  protected  the  citizen  in  the  legitimate 
pursuits  of  business  and  of  happiness,  from  the 
interference  oJ  evil  disposed  persons,  its  first  and 
greatest  lunction  was  discharged.  The  U.  S.  Go- 
vernment had  provided  a  constitutional  standard 
of  weights  and  measures  and  of  value;  and  the 
attempt  on  the  part  ot  the  states  to  supplant  the 
one,  was,  in  his  opinion,  as  much  a  violation  of 
that  instrument,  as  it  would  be  to  interfere  with 
that  of  ihe  other.  He  would  not  now,  however, 
enter  into  a  discussion  of  the  constitutionality  of 
this  question ;  but  he  would  say  that  he  considered 
the  whole  attempt  to  substitute  paper  rags  for  a 
metalic  currency  or  standard  of  value — the  stand- 
ard value  of  the  civilized  world — mere  quackery; 
but  as  it  had  been  commenced,  he  hoped  to  see  at 
least  some  limitation  to  a  business,  the  results  of 
which  had  proven  most  disastrous  to  the  interests 
of  every  country  where  it  had  been  introduced. 
The  argument  of  the  trentleman  trom  New  York, 
(Mr.  TILDEN)  and  of  other  gentlemen,  seemed  to 
be  based  on  a  very  singular  view  of  moral  right. 
They  appeared  to  argue  that  because  other  states 
done  wrong,  therefore  this  should  ;  for  all  admit 
that  the  enormous  expansion  of  hank  issues,  un- 
der the  present  system,  was  ruinous;  yet  they  tell 
us  that  if  it  was  not  done  by  this  stafe,  it  would 
be  by  others;  and  that  the  banks  of  other  states 
would  be  enriching  their  stockholders  by  a  redun } 
dant  currency,  while  owe  was  restricted  from  the 


994 


rarne  privilege,  by  law.  He  had  heard  ot  men 
reasoning  in  'the  following  manner:  "If  I  don't 
give  him  liquor,  he  will  get  it  somewhere  else — 
if  I  don't  make  him  drunk,  others  will — he  would 
Jose  his  property,  any  how;  and  if  I  don't  get  it, 
others  will."  Why  not  carry  out  the  analogy  by 
saying: — Ii'  we  don't  wrong  the  people  bylaws, 
other  states  will — if  we  don't  rob  them,  others 
will  ?  He  did  not  pretend  in  say  that  this  was  the 
intention  of  gentlemen,  but  he  submitted  wheth- 
er this  was  not  the  result  to  which  their  chain  of 
reasoning  would  inevitably  lead  them.  But  it 
seemed  that  no  limitation  was  to  be  put  to  bank 
issues.  Up,  up,  up,  was  the  order  of  the  day  until 
the  paper  bubble  grew  so  large  that  it  would  ex- 
plode of  its  own  accord,  then  follows  universal 
ruin.  Who  would  deny  but  that  if  the  proposed 
restriction  had  been  in  operation  in  1837,  the 
banks  of  this  State  would  have  been  in  a  safer 
condition  than  they  were  and  that  the  resump- 
tion of  specie  payment  would  have  taken  place 
much  earlier  than  it  did,  if  suspension  had  hap- 
pened at  all  ? 

Mr.  TAFT  moved  the  previous   question,  on 
Mr.  AYRAULT'S  motion.     Ayes  48,  noes  13. 
No  quorum. 

A  second — Ayes  56,  noes  not  counted. 
The  main  question  was  then  ordered  to  be  put. 
Mr.  AYRAULT  was  willing,  at  the  request  of 
several  members,  to  withdraw   that   part  of  his 
motion  which  fixed  the  time  when   the   report 
should  be  taken  up  ;  but  there  were  objections, 
and  it  required  unanimous  consent.     He   then 
withdrew  his  entire  motion,  and  moved  that  the 
report  lie  upon  the  table  and  be  printed. 

Mr.  MANN  moved  the  previous  question  on 
this  motion.  Seconded. 

The  ayes  and  noes  were  ordered,  and  the  mo- 
tion of  Mr.  AYRAULT  was  negatived — ayes  37, 
noes  52. 

The  report  was  then  taken  up  by  sections,  and 
the  first  sec  ion  having  been  read, 

Mr.  TAGGART  moved  to  add  "  or  corpora- 
tions" after  the  word  "  associations." 

Mr.  CAMBRELENG  said  he  had  objected  to 
the  insertion  of  this  word  in  committee,  because 
he  desired  to  get  rid  of  that  term  as  applied  to 
everything   but  municipal  establishments.      He 
believed  the  word  associations  was  sufficiently 
descriptive  of  the  character  of  all  other  business. 
The  amendment  was  negatived. 
Mr.   FLANDERS  moved   the  following  as  a 
•ubstitute  : 

The  power  of  issuing  paper  money  shall  not  be  grant 
ed  by  this  State 

Mr.  F.  asked  for  the  ayes  and  nays  on  his  mo 
lion,  and  they  were  ordered. 

Mr.  SIMMONS  was  in  favor  of  that  proposi- 
tion if  it  was  desirable.  It  was  already  in  the  U 
S.  Constitution,— no  State  had  ;he  right  to  issue 
paper  or  to  grant  the  tight  to  do  it.  Bank  bills 
were  mere  promissory  notes. 

Mr.  MURPHY  moved  to  add  after   the   words 
"  paper  money,"  or  "  bills  oi  credit.'  / 

Mr.  FLANDERS  accepted  the  amendment. 
Mr.  WHITE  moved  toadd  alter  the  words  "  pa 
per  money"  **  of  a  less  denomination  than  fivedol 
Fars." 

Mr.  SHEPARD  saw  no  necessity  for  the  amend 
ment  of  Mr.  MURPHY,  that  was  provided  for  in 


the  Constitution  oi  the  U.  S.  It  had  been  decid- 
ed, however,  that  bank  notes  were  not  bills  of 
credit.  All  the  writers  on  cuFrency  had  used  the 
term  "  paper  money,"  in  the  sense  used  by  the 
gentleman  from  Franklin.  He  hoped  the  amend- 
ment would  prevail.  It  had  been  adopted  in  se- 
veral Slates,  and  he  thought  it  to  be  a  sound  sys- 
tem. In  this  view,  he  opposed  Mr.  WHITE'* 
amendment  as  not  going  far  enough. 

Mr.  BASCOM  thought  this  would  open  the  door 
a  little  too  wide  lor  the  circulation  o(  U.  S.  Trea- 
sury notes,  and  thus  bring  us  too  much  within 
the  influence  of  I  he  general  government.  He  was 
therefore  a  little  afraid  of  this  amendment, 

Mr  BOWD1SH  moved  the  previous  question, 
and  there  was  a  second,  and  the  main  question  or- 
iered. 

The  question  was  then  taken  on  Mr.  WHITE'S 
amendment,  and  it  was  rejected,  ayes  9,  nays  97. 

YEAS.— Messrs.  Cambreleng,  R  Campbell,  jr.  Conely, 
Hart,  Murphy,  Kiker,  Townseud,  Vache  and  White— 9. 

The  question  was  then  taken  on  the  amend- 
ment of  Mr.  FLANDERS,  and  it  was  rejected, 


ayes  11,  nays  78,  as  follows: — 

AYES— Messrs.  Cambreleng,  Conely,  Flanders,  Hunt, 
Mann,  McNeil,  Morris,  Sbepard,  Swackhamer,  Towusend, 
Vache— II. 

NOES— Messrs.  Allen,  Angel,  Archer,  Ayrault,  F.  F. 
Jackus,  Baker,  Bascom,  Bowdish,  Bray  ton,  Bull,  Burr, 
[>.  D.  Campbell,  R.  Campbell,  jr  Cand«e,  Clark,  Cook, 
Jrooker,  i-uddeback,  Dana,  Danlorth,  Dodd,  DorJon,  Du- 
jois,  Gebhard,  Graham,  Harris,  Harrison,  Ha-t,  Hawley, 
iiofl'man,  A.  Huntington,  Hyde,  Jordan,  Kernan,  Kirk- 
land,  McNitt,  Marvin,  Maxwell,  Miller,  Munro,  Murphy, 
Mellis,  Nicholas,  O'Conor,  Parish,  Patterson.  President, 
Rhoades.  Richmond,  Riker,  Russell,  St.  .John,  Santo  rd. 
Sears,  Shaw,  Sheldpn,  Simmons,  Smith,  E.  Spencer,  W. 
H.  Spencer,  Stanton,  Stetson,  Stow,  Strong,  Talt,  J.  J. 
Taylor,  W.  Taylor,  Tilden,  Tuthill,  Van  Schoonhoven, 
Ward,  White,  Witbeck,  Wood,  A.  Wrigtit,  W.  B.  Wright, 
Yawger,  Young,  Youngs— 79. 

Mr.  MORRIS  proposed  the  following  as  a  sub- 
stitute for  the  first  section  : — 

1.  Laws  creating  corporations  shall  not  bo  passed,  ex- 
cept  for  municipal  purposes,  and  lor  the  construction  of 
such  works,  and  for  the  performance  of  such  business  as 
necessarily  require  sovereign  prerogative  powers,  rights 
and  privileges.  The  legislature  may  pass  general  laws 
under  which  associations  may  be  formed  for  business,  re- 
ligious  and  charitable  purposes. 

Mr.  M.  thought  this  would  embrace  the  whole 
subject  of  corporations,  and  thus  prevent  the  ne. 
cessity  of  any  action  on  the  report  of  Mr.  LOOMIS. 
He  thought  a  corporation  should  only  be  created 
where  it  was  necessary  to  confer  upon  an  associ- 
ation some  of  the  attributes  of  sovereignty,  which 
it  prefers  to  have  exercised  in  that  manner.  For 
instance,  the  government  had  the  full  power  to 
construct  railroads  and  canals — the  right  of  way 
was  an  attribute  of  government — but  he  would 
authorise  thegovernment  to  devolve  those  powers 
on  a  corporation  if  it  was  desired.  This  was  the 
effect  of  his  amendment.  He  would  -not  allow 
the  government  to  vest  in  a  corporation  any  pow- 
er which  it  would  not  desire,  or  had  no  power  to 
exercise  He  would  not  have  the  ordinary  busi- 
ness of  life  to  be  transacted  by  corporations, 
whose  operation  was  eternal,  who  died  not  when 
men  did.  It  would  utterly  destroy  individual 
competition. 

Mr.  RHOADES  thought  that  by  this  amend- 
ment there  could  be  no  corporation,  unless  the 
sovereign  power  had  first  been  tried,  to  see  if  it 
would  operate.  For  instance  in  the  establish- 


995 


ment  of  a  railroad  route,  land  could  not  be  ob- 
tained, unless  it  was  first  ascertained  whether  it 
could  be  purchased.  As  to  the  prohibition  of 
corporations  generally,  there  were  many  counties 
in  the  state  where  individual  capital  could  not  op- 
iate—and also-,  where  a  wealthy  capitalist  could 
control  the  entire  market.  Associations  of  men 
of  small  means  would  obviate  all  this. 

Mr.  BASCOM  considered  this  the  most  correct 
proposition  yet  offered,  and  if  any  restrictions 
•were  to  be  incorporated  in  the  Constitution  this 
\vas  the  most  sensible  and  proper  one. 

Mr.  MURPHY  accepted  to  the  exceptions  of  the 
amendment.  The  great  evils  in  municipalities 
arose  from  an  abuse  of  the  sovereign  powers  like 
that  of  the  right  of  eminent  domain  which  were 
conferred  upon  them,  and  in  whose  favor  the  ex- 
ception was  made. 

Mr,  RUSSELL  urged  that  the  proposition  was 
ample  for  all  practical  purposes. 

Mr.  SIMMONS  briefly  continued  the  debate. 

Mr.  MORRIS  said  his  object  was  to  prevent  the 
establishment  of  the  same  kind  of  society  here 
which  had  -been  described  as  existing  in  other 
countries.  He  did  not  wish  to  see  women  and 
children  carrying  baskets  for  the  emolument  of 
those  who  did  not  labor,  or  children  from  an  early 
age  trudging  off  to  factories  to  toil  from  early  day 
to  night-fall  for  the  good  of  others.  This  in  Great 
Britain  did  exist ;  and  the  system  might  in  some 
measure  be  traced  to  the  law  of  primogeniture. — 
He  proceeded  to  shew  that  what  primogeniture 
did  on  the  other  side  of  the  Atlantic,  corporations 
would  do  here. 

Mr.  SIMMONS  said  in  his  neighborhood,  the 
corporations  did  not  make  so  much  profit  as  indi- 
viduals in  iheir  employment 

Mr.  MORRIS  then  proceeded  and  concluded  in 
reply. 

Mr.  STOW  denied  the  position  of  Mr.  M.,  that 
corporations  were  detrimental  to  equality  or  tend- 
ed to  a  favored  class.  In  his  opinion,  they  tend- 
ed to  produce  directly  the  reverse  results,  and 
tended  to  elevate  and  not  to  depress  the  masses. 
They  enable  men  of  small  means  and  moderate 
capital  to  compete  with  men  of  enormous  wealth, 
and  it  was  the  only  way  they  could  do  it.  Mr. 
S.  said  that  one-half  of  the  stock  in  the  immense 
manufactories  of  Cincinnati  were  owned  by  the 
operatives,  and  that  over  a  million  of  dollars  in 
Massachusetts  were  invested  from  the  Savings' 
Bank.  This  was  evidence  that  these  were  not 
aristocratic  institutions.  The  institution  of  cor- 
porations would  give  to  men  of  enormous  capital 
at  monopoly.  He  considered  there  was  no  analo- 
gy between  these  corporations  and  the  laws  of 
primogeniture.  The  great  difficulty  in  them  was 
til  at  they  have  been  too  exclusive,  they  have  been 
made  monopolies,  when  they  should  have  been 
distributed  equally  among  the  people. 

Mr.  CAMBRELENG  desired  to  vindicate  the 
system  of  voluntary  banking.  Banking,  as  con- 
ducted in  Scotland,  was  one  of  the  most  useful 
systems  in  the  world.  There,  where  the  popu- 
lation did  not  exceed  that  of  our  own  state,  they 
have  £30,000,000  on  deposite  ;  for  these  they  al- 
lowed interest  on  deposits.  In  that  county,  com- 
paratively of  no  sort  of  importance  with  our  own, 
where  we  have  more  wealth  and  enterprise — 
where  our  laborers  get  better  pay — of  this  large 


amount  of  money,  more  than  £75,000,000  belong 
to  the  poorer  or  laboring  classes. '  Thesfc  institu- 
tions, with  three  exceptions,  are  all  voluntary  as- 
sociations, and  the  law  and  government  had  no- 
thing to  do  with  them,  except  to  provide  that 
they  may  sue  and  be  sued.  If  we  had  done  the 
same  thing  in  the  origin  of  our  government,  we 
should  now  have  had  a  Savings' Bank  of  that  des- 
cription in  every  town  in  the  State.  He  trusted 
that  the  time  would  come  when  something  like  a 
system  which  had  produced  results  so  admirable 
might  be  adopted  here. 

Mr.  JORDAN  went  into  some  criticisms  on 
the  language  of  the  amendment,  to  show  that  it 
would  produce  an  effect  directly  contrary  to  what 
he  conceived  to  be  the  intention  of  the  mover. — 
He  considered  that  it  would  compel  a  return  to 
the  old  system  of  granting  the  franchise  of  bank- 
ing, which  was  a  sovereign  form  and  prerogative. 

Mr.  RUSSELL  asked  for  the  previous  ques- 
tion, and  there  was  a  second,  and  the  main  ques- 
tion ordered. 

The  question  was  then  taken  on  Mr.  MORRIS' 
amendment, -and  it  was  rejected — ayes  9,  nays  78. 

The  question  was  then  taken  on  the  first  sec- 
tion, and  it  was  adopted,  ayes  84,  nays  1  (Mr. 
BURR). 

The  second  section  was  then  read,  as  follows : 

^  2.  The  legislatuie  shall  have  no  power  to  pass  any 
law  sanctioning  in  any  manner,  direct  or  indirect,  the  sus- 
pension of  specie  payments,  by  any  person,  association  or 
incorporation  issuing  bank  notes  of  any  description. 

Mr.  SIMMONS  said  this  was  already  the  law, 
and  there  was  no  necessity  for  its  passage.  The 
legislature  never  had  authorized  the  suspension 
of  specie  payment,  and  it  never  had  and  never 
could  do  so.  When  the  banks  suspended  pay- 
ment, the  legislature,  in  favor  of  the  bill-holder, 
prohibited  costs  if  persons  should  sue.  This  he 
considered  to  be  very  desirable  legislation.  He 
saw  no  possible  use  for  this  section. 

Mr.  CAMBRELENG  said  that  when  he  arose 
before,  he  had  admitted  that  the  suspension  act 
of  the  legislature  was  not  a  direct  authority  to 
the  banks  to  do  this,  but  to  all  interests,  and  pro- 
posed precisely  the  same  thing,  because  it  re- 
quired the  banks  to  receive  the  irredeemable  pa- 
per of  the  others  in  payment  of  debts.  He  de- 
sired to  prevent  the  legislature  from  doing  again 
what  they  did  then.  A  more  useless  act  never 
was  passed,  nor  would  it  ever  have  been  but  for 
the  effect  of  a  panic.  The  legislature  had  the 
disgrace  of  participating  in  a  violation  of  the  con- 
tracts of  the  bank  to  the  community.  That  act 
had  been  condemned  by  every  banker  with  whom 
he  had  conversed,  as  most  useless,  and  a  most 
unwise  example  to  other  States.  He  desired  to 
prevent  a  recurrence  of  these  things  in  future. 

Mr.  SIMMONS  asked  it  ihe  gentleman  suppos- 
ed that  this  section  deprived  the  legislature  of  Ihe 
power  of  divesting  the  plaintiff  ol  costs  in  cer- 
tain case* ? 

Mr.  CAMBRELENG'S  desire  was  not  to  allow 
the  Legislature  to  reach  one  ol  Ihtrse  contracts, 
in  any  form. 

Mr.  SHEPARD  insisted  that  the  effect  of  the 
act  ot  1837  wa-  totalize  the  suspension  of  spe- 
cie payments,  and  winch  would  have  been  uncon. 
stuutional,  had  the  pending  proposition  then  been 
in  the  Constitution.  Mr.  S.  referred  to  the  act  to 
show  that  although  it  did  not  in  terms  perhaps 


996 


violate  th,e  contrast  between  the  banks  and  the 
community,  yet  that,  it  did  in  effect,  by  divesting 
the  community  of  their  remedies  to  secure  the 
fulfilment  of  those  contracts, 

Mr.  STETSON  took  the  same  view  of  the  sub- 
ject as  suggested  by  Mr.  SHEPAHD,  and  urged  the 
adoption  of  the  section  aa  tending  to  prevent  a  re- 
currence of  that  evil. 

Mr.  STOW  objected  to  the  section  as  being  su- 
perfluous— the  United  States  Constitution  guaran- 
teed the  rights  of  the  bill  holders.  He  objected 
to  it  also  on  the  ground,  that  if  any  thing  was  put 
in  the  Constitution  on  the  subject  it  should  be  co- 
extensive with  the  Constitution  of  the  U.S.  By 
saying  as  the  section  did  that  the  legislature 
should  not  authorize  the  suspension  of  specie 
payments  by  a  certain  class,  it  was  by  the  strong- 
est implication  to  be  inferred  that  it  might  au- 
thorize somebody  else  to  do  so.  The  effect  of  the 
bill  of  1837  was  only  to  prevent  a  perfection  of 
these  charters  of  the  banks — for  every  man  had 
the  right  under  the  U.  S.  Constitution  to  enforce 
specie  payments — and  he  would  not,  prevent  the 
legislature  from  doing  so  again.  This  form  might 
be  required  to  be  exercised  during  war. 

Mr.  CAMBRELENG  said  that  there  was  no 
more  necessity  for  a  suspension  of  specie  payments 
during  war  than  in  peace.  It  was  only  where 
the  banks  entered  into  a  fraudulent  partnership 
with  the  government,  that  they  were  even  oblig- 
ed to  suspend  specie  payment.  The  banks  ac- 
ting as  the  agents  of  the  government  might  bor- 
row millions,  but  when  they  loan  what  they  have 
not,  they  substitute  credit  for  money.  This  pro- 
duced the  suspension  during  the  last  war.  If  con- 
gress had  borrowed  money  during  the  last  war, 
and  levied  taxes  to  pay  ity  instead  of  entering  in- 
to a  partnership  with  the  banks  there  would 
have  been  no  necessity  for  the  suspension.  The 
banks  of  New  England  who  had  nothing  to  do 
with  the  government  loan  were  sound  enough. 
Mr.R.  CAMPBELL  jr.  moved  the  previous  ques- 
tion, and  it  was  seconded. 

Mr.  ALLEN,  by  consent,  explained  his  vote. 
He  intended  to  vote  against  this  section.  He  re- 
membered well  th«  history  of  the  war  of  1812,  and 
here  undertook  to  say  that  that  war  could  not 
have  been  carried  on  unless  it  had  been  for  the 
banks.  To  do  this  they  were  compelled  to  sus- 
pend specie  payments,  and  then  every  dollar  they 
could  get,  they  loaned  to  the  government.  He 
spoke  of  the  Eastern  banks  and  of  this  state.  For 
in  the  Eastern  states  there  was  opposition  to  the 
war,  and  there  no  money  could  be  borrowed  and 
hence  there  was  no  necessity  for  suspension.  As 
to  the  second  suspension  in  1837,  he  undertook  to 
say,  that  had  it  not  been  for  that  suspension  every 
merchant  in  New  Y'ork  would  have  broken  down. 
If  the  banks  had  been  compelled  to  pay  specie, 
they  would  have  required  the  merchants  to  have 
paid  them  in  specie.  Thi*  none  of  them  could 
have  done.  He  cited  this  to  show  that  there 
were  times  when  the  suspension  of  specie  pay- 
ments was  absolutely  necessary. 

The  section  was  adopted — 56  to  37. 

The  Convention  then  took  a  recess. 

AFTERNOON  SESSION. 

The  third  section  being  under  consideration,  as 
follows  :— 


§3.  The  legislature  shall  provide  by  law  fortheregis^ 
try  of  all  bills  or  notes  issued  or  put  in  circulation  as  mo- 
ney, and  shall  require  ample  security,  by  pledges  ol  prop- 
erty, lor  the  redemption  of  the  same  in  specie. 

Mr.  CAMBRELENG  said  he  would  not  tie  up 
the  hands  of  the  legislature  in  regard  to  the  kind 
of  security  that  should  be  given  for  the  redemp- 
tion ot  bills.  For  himself,  he  believed  the  saiety 
fund  system  provided  the  best  and  mos<t  ample  se^ 
curity  ever  devised;  and  that  but  for  the  frauds  of 
the  banks  of  Buffalo,  arid  the  misconstruction  put 
upon  the  safety  fund  act,  by  which  the  debts,  ra- 
ther than  the  notes  of  the  banks,  were  paid,  it 
would  have  provided  ample  security.  He  would 
therefore  leave  the  legislature  to  provide  such  se* 
curity  as  they  might  deern  expedient;  and  he 
moved  to  strike  out  the  words,  "by  pledges  of 
property. " 

Mr.  AYRAULT  concurred  with  the  gentleman 
as  lo  the  security  of  that  mode  ol  banking.  But 
he  had  no  regrets  that  this  .«ystem  had  given  place 
to  the  free  bank  system,  which  he  believed  had 
been  found  to  work  equally  well.  He  could  have 
wished  that  the  gentleman,  preferring,  as  he  did, 
the  saiety  fund  system,  had  made  provision  for 
commencing  anew  under  that  system  immediate- 
ly The  sooner  we  got  into  it,  the  better.  We 
had  had  the  safety  fund  system  lor  about  sixteen 
years.  Something  like  one  hundred  banks  had 
been  organized  under  it,  and  there  had  been  but 
eleven  failures.  We  had  had  the  free  bank  system 
in  operation  about  seven  years.  Something  like 
one  hundred  banks  had  been  organized  under  that 
system,  and  there  had  been  twenty-nine  failures- 
As  he  intended  this  morning,  he  now  oflered  an 
amendment,  to  strike  out  all  after  the  word  "  mo- 
ney," in  the  second  line,  and  insert — 

"  But  the  amount  of  bills  or  notes  to  be  issued  by  any 
bank,  shall  be  in  proportion  to  the  actual  capital  of  said 
bank,  paid  in  specie,  or  its  equivalent,  which  capital  shall 
in  no  one  case  be  less  than  $100,000)  and  the  same  amount 
of  capital  shall  be  employed  in  the  business  of  the  bank 
during  its  continuance;  but  the  foregoing  provision  shall 
not  be  construed  to  prevent  the  legislature  from  imposing 
other  restrictions,  limitations  and  provisions,  in  the  crea' 
tion  of  banking  corporations  or  associations.7' 

Mr.  A.  said,  if  he  could  have  his  way,  these  re- 
strictions would  be  sufficiently  numerous  and  as- 
tringent to  secure  the  most  perfect  safety.  One 
of  them  would  be,  to  prohibit  stockholders  or  offi- 
cers from  using  the  money  of  a  bank.  From  this 
circumstance,  and  the  want  of  a  registry  of  notes, 
had  resulted  all  the  disasters  that  had  happened. 

Mr.  CAMBRELENG  concurred  entirely  in  the 
views  ot  the  gentleman  from  Livingston,  but  it 
was  his  object  to  avoid  details  of  a  legislative  cha- 
racter. Were  he  in  the  legislature,  he  should 
vote  for  the  proposition. 

Mr.  COOK  thought  this  was  precisely  the  sta- 
tute as  itsiood  on  the  subject.  Mr.  C.  went  on 
to  advocate  the  present  free  banking  system  as  far 
preferable  to  the  saiety  fund  system. 

Mr.  RUSSELL  expressed  his  concurrence  in 
the  views  expressed  by  Mr.  COOK.  There  was- 
no  security  in  banking  unless  the  securities  were 
placed  beyond  the  reach  of  the  banker. 

Mr  PATTERSON  could  see  no  necessity  either 
for  the  section  or  the  amendment.  It  was  all  mat- 
ter for  legislation. 

Mr.  CAMBRELENG  was  unwilling  to  put  any 
thing  in  the  Constitution  that  was  matter  for  legis. 
lation  ;  but  if  there  was  any  thing  that  should  be 


997 


put  in  the  Constitution,  it  was  a  provision  on  this 
subject.  Any  thing  in  regard  to  the  currency 
should  be  as  unchangeable  as  the  Constitution 
itself. 

Mr.  AYRAULT  further  explained  his  amend- 
ment. 

Mr.  WORDEN  inquired  whether  the  gentleman 
from  Suffolk  intended  to  embrace  bonds  and  mort. 
gages  in  these  securities  ? 

Mr.  CAMBRELENG  said  he  would  not,  if  it 
were  left  to  him  ;  but  he  referred  that  to  the  le- 
gislature. 

Mr.  WORDEN  should  be  glad  if  the  gentlemen 
would  exclude  bonds  and  mortgages  on  agricultur- 
al lands. 

Mr.  CAMBRELENG  would  readily  go  for  that 
as  a  legislator;  but  did  not  like  to  have  it  in  the 
Constitution. 

Mr.  WORDEN  thought  it  unsafe  to  the  agricul- 
tural interest,  to  leave  it  open  to  the  legislature 
to  make  landed  property  the  basis  of  commercial 
credit,  thereby  subjecting  it  to  all  the  fluctuations 
incident  to  commerce  and  trade. 

Mr.  CAMBRELENG  concurred  entirely  with 
the  gentleman.  The  only  difference  between 
them  was  that  he  did  not  think  it  a  proper  pro- 
vision for  a  constitution. 

Mr.  WORDEN  went  on  to  say  that  great  mis- 
chiefs had  resulted  from  the  exercise  of  this  pow- 
er by  the  legislature.  These  bonds  and  mort- 
gages, thrown  into  market  upon  the  failure  of  a 
bank,  depreciated  the  general  value  of  real  estate 
in  the  county  where  the  bank  was,  more  than  the 
whole  amount  ol  the  security. 

Mr.  AYRAULT'S  amendment  was  here  rejec- 
ted, ayes  G,  noes  73. 

Mr.'TiLDEN  moved  to  strike  out  the  words 
"  as  money,"  and  insert  "  as  cunency." 

Mr.  HUNT  had  an  amendment  drawn,  intend- 
ed to  effect  the  same  object.  Mr.  H.  sent  up  the 
following: 

"Strike  out  in  the  second  line  'or  put  in,'  and  insert 
'  by  any  bank  or  banks,  or  lor  general,'  and  also  to  strike 
out'  as  money.' " 

Mr.  PATTERSON  said  in  his  section  of  the 
state,  people  sgmetimes  gave  notes,  that  were 
transferred  from  hand  to  hand.  Would  the  gen- 
tleman have  all  these  sent  down  here  to  be  regis- 
tered ? 

Mr.  TILDEN  withdrew  his  amendmet  to  ena- 
ble Mr.  HUNT  to  offer  his. 

Mr.  NICHOLAS  said  he  would  move'to  strike 
out  this  section,  but  the  sense  of  the  Convention 
could  be  tested  in  less  time  by  a  direct  vote  upon 
it,  and  he  hoped  it  might  be  rejected,  for  it  seem- 
ed to  him  tftet  we  were  constantly  encroaching 
on  the  province  of  the  legislature.  The  first  pro- 
position in  this  section  requiring  a  registry  of  all 
bank  notes,  had  been  acted  upon  by  the  legisla- 
ture for  several  years.  The  second,  compelling 
banks  to  give  ample  security  for  their  indebted- 
ness, was  a  power  which  had  always  belonged 
to  the  legislature;  and  this  constitutional  re- 
quirement would  effect  nothing,  for  the  nature 
and  the  extent  of  the  security  not  being  specified, 
the  term  ample  would  receive  various  construc- 
tions, and  the  whole  matter  would  at  last  be  at 
the  disposal  of  the  legislature.  He  would  rely 
upon  public  sentiment  to  direct  legislative  action 
on  all  such  questions ;  and  as  he  was  not  prepared 


to  believe  that  the  representatives  of  the  people 
were  destitute  of  integrity  and  common  sense,  he 
was  still  disposed  to  repose  confidence  in  them, 
and  not  unnecessarily  to  interfere  with  their  or- 
dinary duties. 

Mr.  HUNT'S  amendment  was  lost. 

Mr.  SWACKHAMER  moved  to  strike  out  "as 
money."  Lost. 

Mr.  TILDEN  now  renewed  his  amendment. 

Mr.  WORDEN  enquired  of  Mr.  CAMBRELENG 
whether  a  note  put  in  circulation  was  not  money  ? 

Mr.  CAMBRELENG:— According -to  the  con- 
struction of  trade,  which  he  was  more  familiar 
with  than  Blackstone,  he  should  say  a  promissory 
note  did  not  mean  money. 

Mr.  WORDEN  :— The  law,  for  some  300  years, 
has  been  that  it  was. 

Mr.  CAMBRELENG  :  Then  adopt  Mr.  TIL- 
DEN'S  amendment. 

Mr.  TILDEN  said  currency  was  the  precise 
technical  term  suited  to  the  case.  As  the  section 
stood,  it  was  inaccurate  in  point  of  language — re- 
cognizing that  as  money  which  in  contemplation 
of  the  Constitution  and  laws  was  not  money. 

Mr.  T.'s  amendment  was  lost — 34  to  35. 

Mr.  JONES  moved  to  vary  the  language  of  the 
section — but 

Mr.  CAMBRELENG  stated  that  it  was  now  in 
the  precise  words  of  the  Revised  Statutes. 

Mr.  WORDEN  replied,  that  you  could  not  use 
language  more  vague.  It  had  never  been  settled 
what  the  phrase  "  circulating  as  money"  meant. 

Mr.  RUSSELL  urged  that  language  in  a  con- 
stitution should  be  used  in  the  ordinary  accepta- 
tion, and  not  in  a  technical  or  legal  sense.  These 
words  "  issued  as  money,"  were  well  understood, 
and  no  legislature  could  hesitate  about  it. 

Mr.  J.  J.  TAYLOR  read  from  the  Statutes  to 
show  that  it  was  the  precise  language  that  had 
long  been  used  in  the  law  against  unauthorized 
banking. 

Mr.  WORDEN  was  aware  of  that,  but  the  con- 
struction of  that  language  had  never  been  settled 
by  the  courts. 

The  question  was  then  taken  on  the  section, 
and  it  was  adopted,  ayes  70,  noes  20. 

The  fourth  section  was  then  read,  as  follows: 

^4.  The  stockholders  in  every  corporation  and  joint 
stock  asseciation  lor  banking  purposes,  issuing  bank  notes 
or  any  kind  of  paper  ere  lits  to  circulate  as  money  after 
the  first  day  of  January,  1850,  shall  be  individually  respon- 
sible te  the  amount  of  their  respective  share  or  shares  ot 
stock  in  any  such  corporation  or  association,  for  all  its 
debts  and  liabilities  of  every  kind,  contracted  alter  the  said 
first  day  of  January,  1850. 

Mr.  KIRKLAND  proposed  to  amend  so  as  to 
limit  the  individual  liability  clause  to  associations 
to  be  hereafter  formed.  Even  if  adopted  he  did 
not  consider  that  the  provision  would  apply  to 
existing  institutions.  Mr.  R.  also  opposed  the 
policy  of  extending  the  liability  beyond  the  claim 
of  the  bill  holder.  Mr.  R.  proposed  the  follow- 
ing amendment. 

After  the  word  "  purposes"  add  "  hereafter  authorized 
or  formed."  Strike  out  after  ''  it,''  to  the  end  of  the  sec- 
tion, and  insert,  "  notes  or  bills  issued  for  circulation  as 
money,  whenever  payment  thereof  shall,  alter  due  de- 
mand, be  refused  by  such  corporation  or  association." 

Mr.  SWACKHAMER  did  not  conceive  that 
these  corporations  were  so  entirely  beyond  the 
reach  of  the  people  as  gentlemen  supposed.  He 
would  propose  the  following  amendment : 


998 


"All  bank  charters  shall  expire  in  the  year  1850,  after 
which  they  may  re-commence  business  after  the  manner 
provided  by  this  Constitution." 

Mr.  CAMBRELENG  took  issue  with  the  gen- 
tleman from  Oneida,  as  to  the  right  to  include 
existing  corporations — saying  that  no  charter  had 
been  passed  since  1822  that  did  not  contain  a  pro- 
vision that  the  legislature  might  repeal  or  modify 
'  it — and  the  general  banking  law  was  certainly 
open  to  amendment  at  any  time.  He  said  he  of- 
fered this  section  as  a  compromise.  He  should 
have  preferred  unlimited  responsibility  himself. 
Without  some  responsibility  in  addition  to  what 
we  now  had,  we  should  have  an  unsafe  system  of 
banking.  He  alluded  to  the  case  of  the  Commer- 
cial Bank  of  this  city,  to  show  the  salutary  ope- 
ration of  the  limited  liability,  and  said  if  it  had 
been  applied  twenty-five  years  ago,  it  would  have 
saved  many  from  bankruptcy. 

Mr.  COOK  read  from  the  Charter  of  the  Com- 
mercial Bank  to  show  that  the  liability  was  pre- 
cisely that  proposed  by  Mr.  KIRKLAND. 

Mr.  CAMBRELENG  referred  to  the  amended 
charter.  His  object  was  to  place  the  banks  on  a 
perfectly  sound  footing  ;  and  every  sound  banker 
should  wish  to  see  it  so.  It  was  important  that 
the  weaker  banks  should  be  made  strong  by  a 
more  extended  liability. 

Mr.  COOK  argued  that  the  section  rendered 
the  bill-holder  less  secure  than  now.  He  stated 
the  case  of  the  failure  of  a  bank  with  a  capital  of 
$200,000,  a  circulation  of  that  amount,  and  a  de- 
posite  of  $100,000.  If  the  failure  was  a  bad  one 
and  the  creditors  were  driven  to  the  liability  pro 
videdin  this  section,  the  effect  was  to  take  from 
the  bill-holder  one-third  of  his  security,  and  give 
it  to  the  depositors.  The  bill-holder,  he  insist- 
ed, should  be  first  paid — leaving  the  residue  of 
the  assets  to  go  pro  rata  among  the  depositors  and 
other  creditors. 

Mr.  CAMBRELENG  urged  that  there  should 
be  no  discrimination  between  bill-holders  and  de- 
positors— that  the  deposites  in  a  bank  were  a 
trust  fund  as  sacred  as  any  other  obligation — and 
that  were  it  otherwise,  the  provision  extending 
this  liability  of  the  banker  to  all  debts,  was  a  su- 
peradded  security  to  the  small  bill-holder,  who 
might,  but  for  this,  be  thrown  into  the  hands  ot 
the  broker.  Indeed,  he  regarded  money  deposit- 
ed without  interest  as  creating  a  more  sacred  ob- 
ligation than  any  that  a  bank  could  come  under. 
Those  banks,  too,  were  to  all  intents  and  pur- 
poses government  banks,  and  we  were  bound  to 
protect  the  community  against  their  insolvency 
whether  depositors  or  bill-holders. 

Mr.  KIRKLAND  would  secure  the  depositors 
but  not  by  a  provision  that  would  be  partial  anc 
nugatory.  He  farther  urged  that  the  legislatur 
could  not,  by  an  alteration  of  the  general  banking 
law,  impose  personal  responsibility  on  the  indi 
vidual  associates.  And  so  of  charters — the  legis 
lature  might  alter  the  terms  of  them,  but  couk 
not  impose  new  obligations  on  the  stockholders 
Mr.  STETSON  contended,  in  reply  to  Mr 
KIRKLAND,  that  the  section  did  not  contemplat< 
any  ex-post  facto  operation.  On  the  contrary,  i 
contemplated  only  that,  after  1850,  there  shoulc 
be  no  banking  establishment  without  the  indi 
vidual  liability  to  this  extent — thus  giving  tht 
legislature  ample  time  to  bring  them  all  in  on 


he  same  stable  footing.  He  concurred  also  with 
VIr.  CAMDRELENG,  that  there  should  be  no  dis- 
inction  between  depositors  and  bill-holders. 

Mr.  CLYDE  moved  the  previous  question. 

It  was  seconded. 

The  1st  amendment  of  Mr.  KIRKLAND  was  in 
rder.  It  was  to  add  the  words  "  hereafter  au- 
horised  or  formed."  This  was  negatived  Ayes 
32,  noes  47—79. 

The  other  amendment  of  Mr.  KIRKLAND  (as 
given  above)  was  then  put  and  lost :  Ayes  42, 
oes  48. 

AYES-  Messrs.  Allen,  Archer,  Ayrault,  F.  F.  Backus, 
taker,  Bascom.Brayton,  Bruce,  Bull,  Burr,  Candee,  Cook, 
Cornell,  Danforth,  Dodd,  Dubois,  Gebhard,  Greene,  Har- 
ris, Harrison,  Hawley, Jordan,  Kirkland,  Loomis,  Marvin, 
Maxwell,  Munro.  Nicholas,  Parish,  Patterson,  Penniman, 
liker,  Simmons, W.  H.  Spencer,  Stow,  Strong, Van  Schoon- 
hoven  Warren,  Worden,  A.Wright,  W.  B.Wright,  Young 
—42.  ' 

NOES— Messrs.  Bowdish,  Cambreleng,  R.  Campbell  jr., 
^lark,  Clyde,  Conely.Cuddeback,  Dana,  Dorlon,  Flanders, 
iunt,  A  Huntington.  Hyde,  Jones,  Kernan,  Kingsley, 

ann,  McNeil,  McNitt,  Murphy,  Nellis,  O'Conor,  Presi- 
dent, Rhoades,  Richmond.Russell.St.John,  Saniord,  Sears, 
Shaw,  Sheldon,  Shepard,  Smith,  Stanton,  Stetson,  Swack- 
hamer,  Tail,  Taggart,  J.  J.  Taylor,  W.  Taylor,  Tilden, 
Townsend,  Tuthill,  White,  Witbeck,  Wood,  Yawger, 
Youngs — 48. 

The  4th  section  was  adopted  as  follows : 
AYES — Messrs.  Bascom,  Bowdish,  Burr,  Cambreleng, 
R.  Campbell,  jr.,  Clark,  Clyde,  Coiiely,  Cuddeback,  Dana, 
Danforth,  Dorlon,  Harrison,  Hunt,  A.  Huntington,  Hyde, 
Jones,  Kernan,  Kingsley,  Mann,  McNeil,  McNitt,  Max- 
well, Munro,  Nellis, President,  Rhoades,  Richmond,  Riker, 
Elussell,  St.  John,  Sanford,  Sears,  Shaw,  Sheldon,  Shepard, 
Stanton,  Stetson,  Swackhamer,  Taft,  Taggart,  J.  J.Tay- 
or,  W.  Taylor,  Townsend,  Tuthill,  Ward,  Witbeck.Yaw- 
ger,  Youngs — 49. 

NOES— Messrs.  Allen,  Ayrault,  F.  F.  Backus,  Baker, 
Brayton,  Bruce.  Bull,  Candee,  Cook,  Dodd,  Dubois,  Geb- 
hard, Graham,  Greene,  Hawley ,  Jordan,  Kirkland,  Marvin, 
Nicholas,  O'Conor,  Parish.  Patterson,  Penniman,  W.  H. 
Spencer,  Strong, Tilden, Van  Schoonhoven.Warren,  White, 
Wood,  Worden,  A.  Wright,  W.  B.  Wright,  Young— 35. 

Mr,  BAKER  moved  a  reconsideration. 

The  5th  section  was  read  as  follows: 

§  5.  The  legislature  shall  limit  the  aggregate  amount  of 
bank  notes  to  be  issued  by  all  the  banks  and  joint  stock 
associations  in  this  state,  now  existing  or  which  may  here- 
after be  established. 

Mr.  WHITE  moved  to  insert  the  words,  "  and 
the  denomination"  after  "  amount"  in  the  first 
line. 

Mr.  TOWNSEND  said  that  he  feared  that  we 
were  crowding  the  Constitution  with  details.  At 
the  early  part  of  the  session  he  had  stated  that  he 
was  willing  to  join  gentlemen  in  an  effort  to 
place  so  many  of  our  organic  laws  within  the 
Constitution,  as  to  render  much  of  the  legislation 
heretofore  exercised  unnecessary — but  this  sen- 
timent was  rebutted  on  the  grounds,  that  a  large 
discretion  must  necessarily  be  left  to  the  legisla- 
ture $  and  that  the  principle  of  saying  what  they 
shall  not  do,  in  contrast  with  that  of  defining 
what  they  shall  do,  appeared  to  be  the  sentiments 
of  the  majority  of  the  Convention  and  he  had  sub- 
mitted to  their  decision.  The  task  enjoined  up- 
on the  legislature  by  this  section  had  been  often 
undertaken  by  them.  In  the  year  1837,  (one  so 
eventful  in  the  history  of  our  banks)  the  legisla- 
ture limited  the  circulation  of  the  existing  laws 
in  proportion  to  their  capitals.  If  his  memory 
was  correct  the  circulation  under  that  limitation 
of  all  the  banks  might  have  been  carried  up  to 
between  34  and  35  millions  of  dollar*,  an  amount 


999 


nearly  double  of  what  (he  Banks  could  ever  suc- 
ceed in  keeping  in  the  hands  of  the  public.  He 
had  given  his  cheerfnl  support  to  the  four  first 
sections  of  this  report,  and  he  had  believed  that 
in  doing  so  he  had  gone  as  far  in  the  matter  of 
regulation  as  is  prudent. 

The  two  remaining  sections  had  not  the  full 
sanction  of  the  committee,  and  he  was  disposed 
to  leave  the  matter  they  contained  to  the  discre- 
tion of  the  legislature.  In  effect  we  had  already 
constitutionalized  a  limitation  of  circulation. 
Public  opinion  had  decided  so  unequivocally  in 
favor  of  a  secured  circulation,  that  it  was  fair  to 
infer  that  bank  paper  not  thus  authorised  would 
decrease  in  amount  from  year  to  year  as  the  spe- 
cial charters  expire.  The  amount  of  our  own 
State  stock  now  held  in  this  country  is  probably 
not  over  twelve  millions,  nor  would  there  be  at 
any  period  during  the  existence  of  our  debt,  pro- 
bably over  that  amount  on  this  side  of  the  At- 
lantic. Consequently  with  the  existing  popular 
provision  as  to  that  stock  forming  the  basis  to  the 
extent  of  at  least  one  half  in  the  security,  we  had 
by  effectually  providing  against  an  increase  of 
state  debt,  indirectly  but  not  the  less  effectually 
limited  the  amount  of  bank  paper  circula- 
ting as  money.  When  by  the  payment  of  our 
debt,  this  convenient  security  was  withdrawn,  (a 
period  of  some  twenty  years  must  first  elapse, 
however,)  legislative  ingenuity  could  provide  by 
the  substitution  of  government  stocks,  or  other 
securities  and  pledges,  for  the  prompt  redemp- 
tion of  such  paper  money  as  the  modifications  of 
trade  and  the  advance  of  intelligence  might  pos- 
sibly then  require.  Were  he  to  be  called  upon 
as  a  member  of  a  purely  legislative  body  to  at- 
tempt to  prescribe  what  extent  of  paper  money 
was  required  at  a  given  period,  he  should  consi- 
der it  a  most  difficult  matter  to  adjust  in  consi- 
deration of  the  magnitude  and  abstrusity  of  the 
subject.  Look  at  our  recent  census  returns  and 
observe  the  fluctuations  from  period  to  period  in 
the  amount  of  productions  of  every  kind  that  en- 
ter into  the  great  aggregation  of  trade,  and  the 
fact  becomes  apparent  that  an  attempt  to  set 
bounds  to  the  volume  of  currency  would  be  found 
entirely  futile,  under  the  free  compel ition  in 
the  issue  of  circulating  notes  that  we  had  secur- 
ed under  the  previous  sections  of  this  article. — 
If  paper  money  was  wanted  it  would  be  regula- 
ted by  the  #reat  laws  of  demand  and  supply,  and 
which  were  obeyed,  carried  out  and  felt  lar  be- 
yond the  injunctions  and  provisions  of  any  statute 
that  we  could  frame.  Gold  and  silver  being  jn 
his  estimation  the  proper  currency  of  the  country; 
when  we  had  obtained  either  that,  or  one  of  pa- 
per, so  issued  and  secured  as  to  possess  a  value 
closely  approximating  to  coin,  we  might  rest  with 
an  indifference  as  to  the  extent  to  which  it  might 
be  put  forth,  for  what  we  should  feel  of  the  ex- 
tent of  the  currency  was  dependent  only  upon  the 
caprice  or  cupidity  of  irresponsible  bank  mana- 
gers. He  thought  the  section  wholly  unnecessa- 
ry, and  one  that  conveyed  no  power  that  the  leg- 
islature had  not  before  exercised,  and  which  when 
claimed  and  acted  upon  could  do  no  possible  good^ 
he  should  like  to  see  it  rejected. 

Mr.  JORDAN  had  an  amendment  to  offer. 

Mr.  SHEPARD  sustained  it  at  some  length. 


The  section  was  then  adopted — ayes  50,  noes 

Mr.  JORDAN  offered  the  following  additional 
section : 

In  case  of  the  insolvency  of  any  bank  or  banking  asso- 
ciation, the  bill-holders  thereof  shall  be  entitled  to  prefer, 
ence  in  payment  over  all  other  creditors  of  such  banks. 

Mr.  RUSSELL  hoped  this  section  would  be 
adopted. 

Mr.  PATTERSON  hoped  so  too,  and  was  glad 
that  his  friend  from  Suffolk  was  at  last  disposed 
to  secure  the  bill  holders.  He  deemed  this  the 
wisest  provision  yet  offered  in  connection  with 
this  report.  He  only  desired  to  say  in  relation  to 
the  section  last  adopted,  that  when  the  legisla- 
ture should  limit  our  circulation  to  ten  millions, 
Massachusetts  and  other  states  could  step  in  and 
supply  the  deficiency. 

The  section  was  then  adopted— ayes  85,  noes  0. 

Mr.  NICHOLAS  moved  a  reconsideration  of 
the  vote  on  the  section  in  regard  to  limiting  the 
aggregate  amount  of  circulation. 

The  sixth  section  was  then  read,  as  follows : 

(5  6.  All  incorporated  companies  and  associations,  exer. 
cismg  banking  powers,  shall  be  subject  to  visitation  and 
examination  at  the  instance  of  their  shareholders,  or  of 
their  creditors,  under  regulations  to  be  established  by  the 
legislature;  and  in  case  ot  the  failure  of  any  such  corpora- 
tion or  association  to  discharge  its  debts  or  liabilities,  or 
of  any  of  its  members  to  discharge  the  debts  for  which 
they  may  be  personally  liable  as  members  of  such  corpo- 
ration or  association,  provision  shall  be  made  for  the  spee- 
dy and  equitable  settlement  of  the  aflairs  of  such  corpora* 
tion  or  association  and  for  dissolving  the  same. 

Mr.  TOWNSEND  asked  for  the  ayes  and  noes, 
but  they  were  not  ordered. 

Mr.  MARVIN  enquired  if  under  this  section 
the  legislature  would  have  the  power  to  relieve 
a  bank  from  the  penalties  imposed  if  it  should 
only  suspend  specie  payments  for  48  hours  ? 

Mr.  CAMBRELENG  said  that  this  section  was 
not  his  own  ;  but  he  had  introduced  it  at  the  re- 
quest of  the  gentlemen  from  Dutchess  and  Sara- 
toga (Messrs.  RUGGLES  and  COOK.)  His  own 
opinion  was  that  the  subject  was  purely  legisla- 
tive. 

Mr.  COOK  said  that  this  was  not  the  section 
he  had  desired.  He  only  wished  to  get  a  quick 
remedy  as  between  different  stockholders. 

Mr.  KIRKLAND  agreed  with  Mr.  CAMBRE- 
LENG, that  this  was  purely  legislative  matter, 
and  he  therefore  moved  to  strike  out  the  section. 

The  debate  was  briefly  continued  bv  Messrs' 
MARVIN,  CAMBRELENG  and  RUSSELL 

Mr.  SWACKHAMER  moved  the  previous 
question.  It  was  seconded. 

The  motion  to  strike  out  the  section  prevailed 
— ayes  44,  noes  35. 

Mr.  TILDEN  moved  to  recommit  the  article 
with  instructions  to  strike  out  of  the  4th  section 
the  words — "  to  the  amount  of  their  respective 
shares,"  &c. 

Mr.  CAMBRELENG  :  That,  sir,  is  only  rais- 
ing the  old  question  of  unlimited  against  restrict- 
ed liability.  I  hope  it  will  be  voted  down  at 
once. 

Mr.  PATTERSON  called  for  a  division  of  the 
question,  so  that  it  should  be  first  taken  on  the 
motion  to  recommit. 

Mr.  CAMBRELENG :  I  move,  then,  sir,  to 
lay  the  whole  question  on  the  table. 

This  was  carried— ayes  48,  noes  19. 


1000 


The  whole   article  was  then  laid  aside  and  or 
dered   to  be   printed. 
The  Convention  then  adjourned. 

TUESDAY,  (101st  day f)  Sept.  29th. 

Prayer  by  the  Rev.  Mr.  BATES. 

Mr.  TOVVNSEND    presented  a  memorial  from 
the   city  of  New  York  tor  the   organization  oJ 
state   board  of  assessors.     Referred   to  the  select 
committee  heretofore  appointed  on  this  subjf  ct. 

Mr.  CLYDE  presented  a  petition  of  Peter  Groat 
and  others  lor  the  merging  of  the  Literature  in 
the  Common  School  Fund,  instead  of  its  appro 
priation  to  the  support  of  the  Normal  School. — 
Referred  to  standing  committee  No.  12. 

Mr.  JORDAN  presented  a  petition  of  Seth  P. 
Staples  and  others  for  the  abolition  of  the  superi- 
or court  at  New  York,  and  that  an  addition  be 


made  to  the  supreme  court  of  that  city, 
to  the  committee  of  the  whole. 

Mr.  BRUNDAGE  called  for  the  consideration  of 
the  resolution  relative  to  the  format  run  of  new 
counties,  which  he  offered  yesterday;  and  he  moved 
to  refer  it  to  a  select  committee. 

Mr.  W-  TAYLOR  hoped  the  motion  would  no 
prevail.     The  law  now  prevented  the  breaking  u 


Mr.  CAMBRELENG  hoped  gentlemen  would 
be  very  careful  how  they  changed  their  votes 
to-day  from  the  vote  of  yesterday  On  this  sec- 
tion  depended  the  whole  principle  —  whether  there 
was  to  be  wild  speculation  in  banking,  or  whether 
the  issues  were  to  be  limited;  whether  there  was 
to  be  an  unlimited  issue  of  paper  money  or  not.  _ 
The  only  safeguard  of  the  system  in  this  State, 
and  in  the  United  States,  he  considered  to  be  this 
very  section.  If  those  who  were  in  favor  of  the 
circulation  of  paper  money,  would  provide  against 
its  failure,  and  the  suspension  of  specie  payments, 
they  ought  to  refuse  to  reconsider  this  question. 

Mr.  NICHOLAS  said  he  yesterday  gave  notice 
of  his  intention  to  move  a  re-consideration  of  this 
section,  which  compels  the  legislature  to  limit 
the  aggregate  amount  of  bank  notes  to  be  issued 


by  ali  the  banks  in  the  state-     He  was 


the 


anticipation  of  a  new 
unwise  to   disturb  th 


of  county  lines  except  in 
census,  arid  he  thought  it 
present  order. 

Mr.  RUSSEL  hoped  this  squabbling  about  new 
counties  would   not    be  gone   into.     He  moved  t 
lay  it  on  the  table. 

Mr  W.  TAYLOR  opposed  the  consideration 
The  law  now  prevented  the  breaking  up  ot  county 
lines,  except  in  anticipation  of  a  new  census,  anc 
he  thought  it  unwise  to  disturb  the  present  order 

Mr.  TALLMADGE  also  hoped  the  question  o 
consideration  would  not  be  carried 

The  motion  to  consider  was  laid  on  the  table. 

UNFINISHED  BUSINESS. 

Mr.  TILDEN  moved  the  reconsideration  of  the 
3d  section  of  the  report  adopted  yesterday.  He 
said  that  in  the  haste  and  confusion,  in  which,  a 
a  late  hour  the  night  previous  this  subject  hac 
been  acted  on,  he  voted  for  this  section  under 
some  misapprehension  of  its  nature.  He  wishec 
for  leave  to  correct  his  vote  or  he  should  be  com- 
pelled to  move  a  reconsideration.  He  feared  the 
consequences  of  adopting  this  section,  which  he 
proceeded  to  discuss.  In  compliance  with  this, 
with  the  desires  of  gentlemen  around  him,  he 
finally  made  that  motion. 

Mr.  CAMBRELENG  said  that  the  section  pro. 
posed  to  be  reconsidered,  was  one  of  the  most  im- 
portant that  they  had  passed.  It  was  the  greatest 
safeguard  ot  the  whole  system  of  paper  circula- 
tion. It  was  worth  all  the  rest.  It  was  the  only- 
section  that  could  pievent  over  issues,  prevent  a 
suspension  of  specie  payments,  arid  was  the  only 
safeguard  we  had  against  corruptions  in  the  bank 
ing  system.  As  to  the  dangers  apprehended  by 
Mr.  TILDEN,  they  were  all  visionary,  and  as  to 
drawing  a  distinction  between  the  currency  of 
one  country  arid  that  of  another,  it  was  visionary 


also.    He  moved  to  lay  the  motion  of  Mr. 
on  the  table. 

The  ayes  and  noes  were  ordered   and    resulted, 
ayes  41,  noes  45. 

So  the  motion  to  lay  on  the  table  was  lost. 


u.twu  ^ 

Referred   <luestlon  was  now  caUed  for  by  a  gentleman  who 
voted  for  the  section,  and  is  now  convinced  upon 
further  reflection  that  it  should  not  have  been 
adopted.     The  general  banking  law  which   the 
Constitution  will  require  to  be  kept  in  force,  au- 
thorises associations  for  banking  purposes  where- 
ever  citizens  have  the   funds  to  spare,   and   the 
country  requires  more  banking  capital.     The  ob- 
jects of  this  law  must  be  defeated   by  the   opera- 
tions of  the  provision  of  this  section.    An  associ- 
ation may  be  formed  in  the  county  in  which  he 
(Mr.  N.)  resides,  whose  issues  will  be  only  suffi- 
cient for  the  business  wants  of  the  community.  — 
A  populous  city,  say  Buffalo,  with  growing  com- 
mercial  interests,  will  be  frequently  requiring 
additions  to  its  banking  capital,  and  whenever  a 
new  bank  is  started  you  swell  the  aggregate  issue 
in  the  state,  and  in  order  to  keep   it  within  the 
proposed  limit  you  must  reduce  the  circulation  of 
other  banks,  which  have  only  circulated  paper  to 
an  amount  authorised  by  the  general  law,  and 
which  the  business  interests  of  the  vicinity  have 
required.     Hence  the   commercial  and  banking 
interest  of  the  State  ^would  be  kept  in  a  constant 
state  of  agitation  and  uncertainty,  and  all  the  an- 
ticipated benefits  of  the  general  banking  law  frus- 
trated.    He  (Mr.  N.)  should  deem  it  unwise  un- 
der any  circumstances,  to  compel  the  legislature 
to  make  such  an  experiment,  to  embark  upon  an 
untried  system  which  may  involve  such  impor- 
tant consequences  to  the  country,  especially  as  it 
is  a  question  which  has  not  been  thoroughly  exa- 
mined either  here   or  in   the   community,   and 
which  we  have  not  time  to  examine.     The  legis- 
.ature  has  the  power  and  will  have  the  wisdom  to 
dispose  of  the  whole  question   in  a  manner  best 
adapted  to  the  wants  of  the  people,  and  it  should 
)e  left  at  their  disposal. 

Mr.  MARVIN  was  opposed  to  the  section,  and 
should  vote  to  reconsider,  and  then  should  vote  to 
reject  it.  He  thought  it  unwise  to  tie  the  people 
of  New  York  down  by  such  a  constitutional  pro- 
vision, when  all  the  other  state  banks  of  the  union 
were  unlimited  in  their  issues.  He  desired  a 
arge  infusion  of  specie  into  our  circulation,  but 
low  could  it  be  accomplished  so  long  as  other 
tates  were  placed  under  no  such  restrictions  ? 

Mr.  SWACKHAMER  said  the  argument  of  the 
gentleman  from   New-York   (Mr.    TILDEN)   and 
ther  members  who  concurred  with  him,  seemed 
o  be  based  on  a  very  strange  principle  of  morals. 
All  conceded  that  the  unlimited  power  of  the 


1001 


banks  to  issue  bills  tor  circulation  was  a  great 
evil,  but  at  the  same  time  they  contended  -,i-  iin<r 
roposition  I.-  restrict  them,  on  the  grounds 
that  if  we  did  not,  other  states  would  ;  or  in  oth- 
er words,  if  tliis  state  was  not  accessory  to  de- 
frauding the  people,  other  states  would  be.  It 
was  feared  that,  during  the  times  of  suspension 
and  a  redundant  currency,  the  banks  of  other 
States  would  have  an  advantage  over  those  of  this 
State  in  swindling  the  people,  and  in  accumu- 
lating wealth  from  the  hard-earned  substance  of 
the  laboring  people.  He  believed  the  right  of 
creating  a  standard  of  weights  and  measures,  and 
of  rule  was  an  exclusive  prerogative  of  the  federaf 
government,  with  which  the  States  had  nothing 
to  do  ;  but  as  they  had  commenced  "  tinkering" 
with  the  currency,  he  hoped  some  safeguards 
would  be  thrown  round  the  people,  and  that  their 
interests  would  be  protected,  as  far  as  practica- 
ble, from  future  depredation  and.  wrong. 

JVIr.  TOWNSEND  wished  to  enquire  of  the 
gentleman  (Mr.  TILDEN)  what  vote  he  wished  to 
reconsider — if  lie  desired  to  call  up  again  the  vote 
upon  the  limited  personal  responsibility  for  which 
he  last  evening  gave  notice  of  reconsideration, 
he  hoped  the  Convention  would  not  consent ;  but 
if  the  gentleman  wished  to  reconsider  the  vote 
upon  the  section  relating  to  the  limitation  upon 
the  aggregate  circulation, (which  section  the  gen- 
tleman himself  had  voted  for)  he  would  cheerful- 
ly join  them  in  an  'effort  to  reconsider  and  ex- 
punge the  section  from  the  article  which 
we  had  last  night  adopted.  Mr.  T.  said  in  ad- 
dition to  his  observations  of  last  evening  against 
the  section,  he  would  state  further  that  any  at- 
tempt to  circumscribe  the  extent  of  the  paper  cir- 
culation, would  meet  with  practical  difficulties  at 
every  step.  Suppose  that  20  millions  should  be 
deemed  by  our  legislature  as  a  proper  quantity  of 
paper  money  to  represent  the  demands  of  busi- 
ness in  this  State,  when  in  practice  it  was  found 
to  be  far  short  of  the  necessary  sum.  Would  we 
not  have  the  vacancies  soon  supplied  by  bank 
notes  from  other  States,  and  thus  the  whole  ob- 
ject of  the  provision  defeated.  While  we  were 
contented  to  legalize  paper  money,  he  was  in  fa- 
vour of  retaining  the  profits  that  it  afforded 
among  the  people  of  our  own  State.  In  Massa- 
chusetts, and  other  New  England  States,  the  poli- 
cy of  encouraging  their  own  bank  paper  was  so 
well  understood  that  even  the  paper  of  the  New 
York  banks,  secured  by  the  public  stock  of  this 
State  was  looked  at  askance,  as  not  presenting 
equal  value  with  their  own  circulation. 

At  present  certified  checks  and  bank  drafts  an- 
swered in  a  great  degree  all  I  lie  purposes  ot  com- 
merce in  our  Stale,  else  how  would  it  be  possible 
that  with  our  present  extended  trade,  we  could 
get  along  with  a  paper  circulation  ot  only  about 
one  half  the  volume  of  what  had  been  required  at 
a  period  when  the  business  operations  of  this 
State  were  of  not  one-fourth  the  extent  which 
they  had  nov*  attained.  Under  restrictions  of  the 
nature  contained  in  the  section  under  considera- 
tion, the  only  effect  would  be  to  add  to  the  amount 
of  individual  and  hank  checks  and  diaf'ts  now  so 
extensively  used.  As  to  any  tears  of  an  expan- 
sion, ot  circulation,  while  we  took  care  that  any 
paper  issued  as  money  should  be  reckoned  in  com, 
no  apprehension  need  be  felt,  but  the  matter 

100 


would  thereafter  regulate  itself.     An   imprudent 
BS  of  pappr  would  r:nrv  up  the  prices  ot   our 
produce  to  .such  \.<  e^use  tin-   espoir,-,. 

tion  of  coin  in  preference  as  the  che  ; 
modify.  This  would  immediately  cause  a  con- 
traction of  the  paper  currency  and  bank  facilities 
which  would  restore  prices  again  to  their  proper 
specie  standard,  their  exportation  would  a&nin  be 
resumed,  and  quiet  be  soon  again  attained.  This 
state  of  t bines  had  been  introduced  by  the  free- 
dom of  bankiri£  now  existing  in  this  controlling 
commercial  State.  Had  it  existed  in  1837  and 
f3Q,  the  evils  of  an  expansion  would  have  been 
felt  vind  removed  long  before  they  attained  a  mag- 
nitude 'hat  overwhelmed,  in  its  correction,  the 
whole  financial  system  of  the  Union. 

My  colleague,  (Mr.  SHEPARD),  last  evening 
alluded  to  the  foreign  exchanges,  as  connected 
with  this  subject,  and  yet  sustained  the  proposi- 
tion. It  was  true  that  the  state  of  those  exchan- 
ges could  alone  regulate  this  matter.  By  an 
erroneous  system  of  computation,  that  of  deeming 
the  pound  sterling  as  worth  but  $4  44  cents,  in- 
stead of  its  true  value,  as  declared  by  the  laws  of 
the  United  States,  '$4  84-100,  exchanges  were 
actually  at  par  with  Great.  Britain  when  the  quo 
tation  in  New-York  was  at  8k  per  cent  premium1 
consequently  when  it  exceeded  9  per  cent,  sil- 
ver could  go  abroad  in  small  quantities,  while  at 
10  per  cent,  gold  would  move,  and  soon  thereaf- 
ter the  contraction  of  credits  and  necessary  fall  of 
prices  present  merchandize  again,  as  the  more 
profitable  medium  of  extinguishing  the  foreign 
balance.  Mr.  T.  hoped  the  proposition  would  be 
reconsidered  and  the  section  expunged  from  the 
article. 

Mr.  CAMBRELENG  said  that  this  section  pro- 
posed no  monopoly  ;  it  was  perfectly  fair  for  all 
the  banks,  the  old  and  the  new;  leaving  the  le- 
gislature to  pass  such  laws  as  would  render  all 
the  banks  infinitely  more  secure  than  they  were. 
In  those  States  where  they  have  prohibited  the 
issue  of  notes  under  $5,  you  see' no  notes  of  other 
States  there  under  $5.  He  should  like  to  know 
when  and  where  paper  was  at  a  premium.  He 
was  for  free  trade  in  banking,  but  not  for  free 
trade  in  the  manufacture  of  paper  money.  No 
country  on  earth  could  have  more  specie  than  we 
could  if  we  adopted  a  wise  policy.  There  were 
$4,000,000,000  in  the  world.  He  was  opposed  to 
this  terrible  augmentation  of  paper  money ;  and 
it'  gentlemen  realized  their  dreams,  and  got  $40,- 
000,000  of  paper  money,  you  will  double  the 
price  of  every  thing  you  consume  in  a  few  years, 
by  the  depreciation  of  your  currency.  A  metal- 
lic currency  is  the  sheet  anchor  of  trade,  of  mo- 
rals, and  of  prosperity. 

Mr.  MARVIN  asked  how  they  could  get  out 
of  the  difficulty  he  had  before  alluded  to? 

Mr-  CAMBRELENG  said  it  was  impossible  for 
us  at  present  to  control  the  currency  of  other 
States;  but  make  our  currency  as  sound  as  you 
can,  for  on  the  currency  of  this  State  depends  the 
currency  of  the  whole  Union.  He  wanted  some- 
thing in  the  Constitution  fixed  and  permanent, 
so  as  to  prevent  this  erroneously  progressive  aug- 
mentation of  paper  money.  Now  it  amounts  to 
$100,000,000,  and  unless  some  restraints  are 
made,  it  will  soon  amount  to  $200,000,000. 

Mr.  TILDEN  very  much  regretted  to  differ 


1002 


even  on  an  unimportant  question  from  his  friend 
from  Suffolk.  In  the  great  contests  of  1834  and 
1837  in  regard  to  the  currency,  he  had — if  he 
might  use  an  expression  which  implied  so  much 
of  equality  between  so  humble  an  individual  as 
himself  and  his  distinguished  friend — stood  shoul- 
der to  shoulder  with  that  gentleman.  He  had  at 
a  period  even  earlier,  and  on  mature  reflection, 
adopted  the  great  principle  of  FREE  TRADE  as 
applied  to  the  business  of  banking,  which  was  so 
ably  and  successfully  vindicated  by  LEGGETT  in 
the  memorable  controversies  that  followed  its  first 
practical  assertion  by  a  small  number  of  persons 
in  the  city  of  New- York,  at  that  time  derided  as 
visionaries  and  disorganizes.  He  had  maintain- 
ed the  doctrine  during  those  contests  in  resolu- 
tions and  other  forms  adopted  and  approved  by 
the  democracy  of  that  city  ;  he  stood  by  it  now  ; 
he  had  always  supposed  that  it  was  held  by  his 
friend  from  Suffolk,  and  was  surprised  to  learn 
since  he  came  here  that  the  fact  was  in  some  re- 
spects different. 

Mr.  President — When  will  men  learn  to  trust 
more  to  the  laws  of  trade  and  less  to  the  artificial 
«'  regulations"  of  government  ?  more  to  the  wise 
arrangements  of  Providence,  and  less  to  their  own 
cunning  devices  ?  If  the  government  had  con- 
fined itself  to  its  appropriate  duty  of  furnishing  a 
standard  of  value,  recognising  nothing  as  mo- 
ney but  the  constitutional  currency  of  gold  and 
silver,  if  it  had  abstained  from  interfering  with 
the  circulating  credits  which  exist  only  by  the 
voluntary  consent  of  individuals,  and  from  giving 
them  its  sanction  under  the  pretence  of  regula- 
tion, and  thus  creating  an  unnatural  confidence  in 
them,  we  should  have  had  the  best  currency  which 
any  nation  has  enjoyed.  The  smaller  channels 
of  circulation  would  have  been,  to  a  much  great- 
er degree,  filled  with  coin,  and  the  paper  which 
existed,  deriving  no  credit  from  the  government 
sanction,  and  furnished  under  an  active  competi- 
tion as  to  its  quality  and  the  guaranties  for  its  re- 
demption, would  have  been  of  the  soundest  cha- 
racter. But  unfortunately,  our  government  has 
claimed  as  a  prerogative  of  sovereignty,  not  mere- 
ly to  fix  the  standard  of  value,  not  merely  to  sup- 
ply the  legal  currency,  but  to  furnish  the  com- 
mon form  of  circulating  credit,  which  is  sustain- 
ed by  the  voluntary  consent  of  individuals.  It 
has  then  farmed  out  this  prerogative  of  sovereign- 
ty to  trading  corporations,  organised  for  the  pri- 
vate gain  of  stockholders ;  and  made  what  it 
claimed  a  right  to  interfere  with  only  as  a  proper 
function  of  government,  a  mere  incident  of  trade. 
It  has  then  prescribed  certain  general  regulations 
which  it  has  assumed  to  be  the  great  secret  ol 
safe  and  successful  banking,  but  which  have  not 
the  slightest  tendency  lo  previ  nt  the  worst  evils, 
really  experienced  ;  and  has  exempted  a  sjsten 
thus  subjected  to  all  the  dangerous  impulses  ol 
private  business  from  the  laws  ot  trade,  by  which 
alone  those  impulses  couid  be  restrained.  Ii 
would  not  he  difficult  to  show  that  nearly  all  the 
mischiefs  of  hanking  proceed  from  such  unwise 
legislation  It  the  occasion  allowed,  I  should 
hope  to  exhibit  and  prove  by  admitted  f.cis,  the 
modes  in  which  legislation  suspends  or  obstruct 
the  natural  laws,  which  would  regulate  banking; 
that  its  artificial  restrictions  have  been  wholly  in 
operative  as  to  the  most  essential  points ;  and  that 


all  the  practical  regulations  which  the  business 
has  had,  is  from  the  laws  of  tiade  thus  suspended 
>r  obstructed.  But,  limited  to  so  brief  a  period 
or  discussion,  I  can  but  ulance  at  a  lew  of  the 
most  obvious  views  of  the  subject.  The  first 
great  error  to  which  1  shall  allude,  is  in  with- 
drawing, to  a  veiy  large  extent,  from  banking,  the 
influence  of  a  principle  which  alone  does  or  can 
restrain  tne  excesses  of  any  business  1  mean  the 
responsibility  for  its  hazards  of  those  who  are  to 
receive  its  profits.  We  not  only  gave  to  the  bank- 
ing corporations  for  a  lons<  time  an  entire  monopo- 
ly, but  we  even  now  continue  to  them  an  exemp- 
tion from  as  high  a  degree  of  liability  as  applies 
to  mos;  trading  corporations,  and  from  the  full  de- 
gree of  liability  which  applies  to  individuals 
engaged  in  business.  The  consequences  of  this 
privilege,  this  immunity  ove'r  the  great  mass  of 
other  business,  have  been  to  invite  an  inordinate 
proportion  of  capital  into  banking,  and  to  cause  a 
most  false  and  dangerous  system  to  be  organized. 
The  money  of  widows,  children,  retired  persons, 
and  all  those  who  are  incompetent  to  engage  in  ac- 
tive business;  who  have  not  th3  personal  knowl- 
edge,or  are  incapableof  the  personal  supervision, or 
are  unwilling  to  incur  the  risks  which  belong  to  ac- 
tive business — have  been  collected  together,  gene- 
rally in  small  sums,  the  incomes  fiorri  which  would 
not  recompense  much  personal  attention  or  effort  j 
and  entrusted  to  the  management  of  persons  who 
have  no  considerable  interest  in  the  institutions 
which  they  control ;  to  directors  who  are  frequent- 
ly boi  rowers,  rather  than  lenders,  and  to  salaried 
officers  ;  in  a  word,  to  persons  on  whom  those  mo- 
rives  to  vigilant  care  and  assiduous  effort  which 
are  the  springs  of  success  in  all  business  can  ope- 
rate if  at  all,  but  very  slightly.  Would  any  sane 
man  venture  such  an  experiment  in  any  other  bu- 
siness? Would  it  be  expected  to  succeed  in  any 
branch  of  commerce  or  any  mechanical  trade  or- 
dinarily conducted  by  individuals  ?  And  yet  we 
have  applied  this  false  and  mischievous  system  to 
the  most  delicate  and  perilous  of  all  kinds  of  bu- 
siness, an  irregularity  which  disturbs  every  de- 
partment of  human  industry.  I  had  hoped  that 
the  Convention  would  correct  this  great  error,  and 
would  enforce  that  full  personal  responsibility  of 
the  stockholder  in  banking  corporations  to  which 
I  have  long  looked  as  a  principal  means  of  reno- 
vating our  present  vicious  ssslem.  I  regret  that 
the  honorable  chairman  felt  compelled  to  abandon, 
without  taking  the  sense  of  the  convention  upon 
the  question, so  important  and  valuable  a  reform. 
In  another  respect  our  legislation  has  been  no 
less  unfortunate.  It  has  suspended  the  law  of 
trade  by  which  alone  fluctuations  in  the  amount 
of  the  currency  are  restrained.  I  do  not  mean  to 
discuss  the  general  question,  as  to  the  policy  of 
the  laws  fixing  the  rate  of  interest.  I  wish, 
merely,  to  advert  to  the  effect  on  the  currency,  of 
the  establishment  by  law  of  a  uniform  and  inflex- 
ible rule  of  discounts  tor  commercial  paper. — 
The  rise  in  the  price  of  a  commodity,  resulting 
from  a  supply  less  than  the  demand,  is  a  benifi- 
cent  arrangement  of  Providence,  by  which  every 
person  is  warned  of  the  scarcity — consumption 
is  checked — and  the  supply  eaked  out  to  the  de- 
mand. If,  for  instance,  the  price  of  flour  were 
inflexibly  fixed  at  five  dollars  a  barrel,  when 
there  was  a  deficiency,  instead  of  its  use  being 


1003 


economized  by  the  substitution  of  other  articles 
and  by  every  ingenious  expedient,  we  should  all 
Consume,  with  the  prodigality  of  abundance,  un- 
til thf  whole  supply  was  exhausted  and  absolute 
scarcity  produced.  This  principle  is  just  as  true 
of  the  supply  of  loanable  capital  as  of  anything 
else.  Its  operation  has  been  repeatedly  shown  by 
experience.  Early  in  1836,  (I  speak  from  recol- 
lection and  can  not  state  the  exact  period,)  some 
twelve  months  at  least  before  the  suspension  of 
specie  payments  in  May,  1837,  money  was  worth 
in  Wall  street,  from,  one  to  two  percent  a  month. 
If  the  rate  of  discount  at  the  banks  had  been  al- 
lowed to  rise  with  the  market,  the  price  would 
have  been  somewhat  less  than  it  was  in  the  street 
but  much  more  than  the  legal  rate.  Individuals 
would  not  have  based  their  calculations  and  formed 
their  contracts  on  the  expectation  of  obtaining 
discounts  to  meet  them  at  the  legal  rate,  risking 
only,  what  men  are  not  disposed  to  fear,  the 
chance  of  not  being  able  to  get  a  sufficient  quan- 
tity. They  would  not  have  procured  means  on 
\vhich  to  do  business  at  an  interest  larger  than 
the  usual  rate  of  commercial  profit ;  they  could 
not  have  competed  for  loans  with  the  speculators 
\vho  were  anticipating  enormous  gains;  and  must 
have  reduced  their  business  to  their  own  capital. 
If  at  that  early  period — more  than  the  length  of 
an  ordinary  commercial  engagement  before  the 
catastrophe a  reduction  had  been  commen- 
ced, the  shock  would  have  passed  the  men 
engaged  in  regular  business  and  fallen  only  on  the 
wildest  adventurers.  It  is  not  too  much  to  say 
that  except  for  the  legally  established  rate  of  dis- 
counts, the  worst  calamities  of  the  commercial 
revulsion  of  183"  could  not  have  occurred.  Noth- 
ing can  be  more  obvious  than  that  the  induce- 
ment to  obtain  discounts  is  the  difference  between 
the  rate  of  profit  at  which  money  can  be  employed 
and  the  rate  of  interest  at  which  it  can  be  borrow- 
ed; that  in  times  of  commercial  excitement  when 
the  rate  of  profit  rises,  if  the  rate  of  interest  is 
artificially  kept  down,  the  demand  for  discounts 
must  be  greatly  increased  ;  and  that  the  natural 
and  effectual  check  on  that  demand  is  for  the  rate 
•of  interest  to  rise  with  the  rate  of  profit.  The 
Bank  of  England  has  for  the  last  ten  years  regu- 
lated the  amount  of  her  discounts — not  as  our 
banks  do  by  arbitrary  selections  between  the  notes 
offered  for  discount,  but  by  raising  the  rate  of  in- 
terest; and  the  experiment  has  proved  entirely 
successful.  I  do  not  suppose  it  would  be  safe  to 
remove  the  restraint  on  the  rate  of  discount 
charged  by  the  banks  unless  the  greatest  free- 
dom of  competition  was  allowed  to  individuals 
and  associations;  but  if  such  freedom  were 
allowed,  I  do  not  doubt  that  the  general  rate 
would  be  as  low  as  now,  while  its  fluctuations 
would  be  constantly  operating  to  preserve  the 
equality  between  the  supply  and  demand. — 
Other  errors  in  our  legislation,  scarcely  less  mis- 
chievous, there  have  been,  but  I  cannot  now  dis- 
cuss them.  So  far  as  their  effect  has  been  to 
build  up  an  elaborately  artificial  system,  and  to 
give  to  its  issues  a  false  credit,  the  evil  4ias  be- 
come so  interwoven  with  existing  institutions, 
and  modes  of  business,  and  with  prevalent  habits 
of  thinking  and  acting,  that  it  can  be  but  gradual 
ly  removed.  But  the  two  great  errors  to  which 
have  before  adverted,  are  within  the  power  of 


his  Convention  or  of  the  legislature;  they  could  be 
remedied  by  a  single  act,  and  I  doubt  not  that  so  be- 
neficent  a  reform  will  be  ultimately  accomplished. 
That  measure  would  afford  a  most  efficient  re- 
medy— if  not  the  only  one  applicable  to  our  con- 
dition— for  those  fluctuations  in  the  aggregate  a- 
mount  of  our  currency,  which  are  its  greatest 
evil.  There  cannot  be,  I  know,  an  indefinite  ex- 
aansion  of  a  currency  convertible  into  coin. — 
The  liability  to  the  demand  for  instant  redemp- 
:ion  in  specie  of  the  paper  issued,  operates  effec- 
:ually  to  subject  a  convertible  currency  to  the  same 
law  which  governs  the  aggregate  amo'.mt  of  a  spe- 
cie currency,  and  to  keep  it  at  the  same  average* 
[f  the  currency  of  this  country  becomes  excessive 
as  compared  with  that  of  other  countries — prices 
rise,  relatively  to  those  abroad — importations  are 
encouraged  and  exportations  discouraged,  until 
an  adverse  balance  of  trade  is  produced — foreign 
exchange  rises,  and  when  it  passes  the  point  at 
which  specie  can  be  profitably  shipped,  a  demand 
for  it  compels  the  banks  to  contract  their  issues, 
and  the  currency  is  restored  to  an  equilibrium. — 
Nevertheless,  the  vibrations  of  an  elastic  curren- 
cy are  sometimes  considerable  before  the  check 
of  the  exchanges  operates,  and  in  two  remarkable 
instances  in  our  history — in  1818  and  in  1837 — 
the  regulating  action  of  the  exchanges  was  sus- 
pended, by  causes  to  which  I  cannot  now  allude, 
for  a  period;  and  the  exp  .nsions  reached  nearly 
fifty  per  cent  on  the  whole  amount  of  the  curren- 
cy, and  was  followed  by  reductions  to  about  the 
original  quantity,  which  produced  wide  spread 
distress  and  ruin.  The  attention  of  legislators 
and  of  the  public  does  not  seem  to  have  been 
much  drawn  to  this  subject.  While  we  have 
made  careful  provision  lest  a  man  should  lose  a  one 
dollar  note,  we  have  made  none  against  a  fluctua- 
tion which  should  change  the  value  of  his  pro- 
perty one-half— reduce  a  claim  he  may  have  to 
receive  on^  half — or  double  a  debt  he  may  have 
to  pay.  My  reflections  were  long  since  address- 
ed to  this  evil  and  its  remedy.  From  a  rar  t'ul 
examination  of  all  our  legislation,  I  am  satisfied 
th  «t  it  contains  not  one  provision  calculated  to 
prevent  this  mischief,  but  that  its  whole  tenden- 
cy has  been  greatly  to  increase  it  by  suspending 
or  obstructing  the  laws  of  trade,  which  alone 
could  restrain  these  various  fluctuations.  The 
object  cannot  be  obtained  by  artificial  means,  ex- 
cept by  a  suppression  oi  our  whole  bank  note  cir- 
culation— a  separation  of  the  issue  of  currency 
from  the  business  of  banking — and  a  supply  by 
the  government  of  the  necessary  circulating  me- 
dium, and  even  that  would  not  be  effectual,  so 
long  as  we  permit  other  forms  of  circulating 
credits.  If  insuperable  obstacles  exist  to  such  a 
measure,  the  only  alternative  presented,  is  to  re- 
store the  natural  action  of  those  checks  which 
exist  in  the  very  nature  of  business,  and  in  in- 
terfering with  which  we  have  incurred,  as  far  as 
fluctuations  in  the  currency  are  concerned,  all 
the  mischiefs  of  absolute  freedom,  without  its 
compensating  advantages.  It  is  utterly  idle,  and 
worse,  to  expect  a  remedy  from  any  legislative 
measures  such  as  is  proposed. 

This  section  imposes  upon  the  legislature  the 
duty  of  fixing  the  aggregate  circulation  of  all  the 
banks  in  the  state  at  a  specified  amount.  How  is 
such  a  provision  to  be  executed  ?  Assume  the 


1004 


aggregate  amount,  and  how  is  it  to  be  distributed 
among  the  numerous  banks  ?  Not  in  the  ratio  of 
capital ;  for  in  the  city  banks  the  circulation  is 
mainly  in  the  form  of  deposits,  while  in  the  coun- 
try it  is  almost  wholly  in  the  form  of  bills ;  and 
such  a  rule  would  be  most  unequal  and  mischiev- 
ous. Not  certainly  according  to  the  present  cir- 
culation of  the  banks ;  for  that  would  be  to  per- 
petuate by  law  an  accident,  without  reference  to 
inevitable  changes  in  the  future.  Either  rule 
would  destroy  all  exercise  of  judgment  in  those 
who  receive  the  bills,  and  by  confining  the  circu- 
lation of  banks  with  good  credit,  enforce  the  cir- 
culation of  banks  with  bad  credit.  But  there  is  a 
still  greater  difficulty.  Under  our  general  laws, 
a  few  individuals  may  establish  at  any  time  a 
bank.  What  is  to  be  done  in  such  a  case  ?  If 
the  circulation  is  to  be  confined  to  the  banks  now 
existing,  that  would  be  to  restore  the  old  system 
of  monopoly;  if  a  change  is  to  be  made  in  the 
amount  allotted  to  each"  every  time  a  new  bank 
may  happen  to  be  set  up,  the  interference  of  go- 
vernment and  the  disturbances  of  business  would 
be  incessant  and  intolerable.  Can  it  be  doubted 
that  under  such  a  system,  struggles  between  the 
different  banks  would  arise  at  every  session  of  the 
legislature,  and  endless  conflicts  of  "local  interests? 

Nor  is  the  proper  amount  of  the  aggregate  cir- 
culation so  easily  to  be  fixed.  Who  can  say  at 
any  moment  what  it  ought  to  be  ?  If  fixed  too 
high,  it  would  be  merely  a  delusion  and  a  snare. 
If  loo  low,  it  would  cause  the  influx  of  the  paper 
of  other  States  which  is  less  safe  than  our  own — 
for  even  if  Jit  be  practicable  to  prevent  such  an 
influx,  no  provision  for  that  purpose  is  proposed. 
The  attempt  to  fix  the  amount  from  time  to  time, 
would  generate  incessant  controversies  utterly 
destructive  of  the  stability  of  business.  Who  does 
not  know  that  whenever  a  pressure  in  the  money 
market  should  occur  there  would  be  a  clamor  for 
relief  by  enlarging  the  issues  ?  And  this,  even  if 
they  were  already  too  large  and  were  not  restrain- 
ed in  practice  by  the  limitation,  from  the  mere 
fact  that  government  professed  to  regulate  the 
matter?  Men  would  be  taught  to  look,  not  at 
themselves  but  to  the  government  for  remedy  ; 
endless  controversies  would  arise  ;  and  perhaps 
even  parties  be  arrayed  on  such  questions.  All 
the  interests  of  business  would  be  drawn  into  the 
vortex  of  politics,  and  a  state  of  wretched  insecu- 
rity and  instability  produced.  What  regulations 
can  be  established  by  general  and  permanent  law 
government  might  make,  wisely  or  unwisely  ; 
but  if  the  legislature  be  converted  into  an  admin- 
istrative board,  to  manage  in  detail  the  currency 
of  the  state,  fixing  from  time  to  time  its  aggregate 
amount  and  alloting  that  amount  among  some  hun- 
dreds of  different  banks  according  to  its  varying 
discretion,  I  hazard  nothing  in  saying  it  would  do 
intolerable  mischief  as  well  as  violate  all  sound 
principles. 

ThtT  ided  of  this  provision  is  adopted,  I  suppose, 
troin  the  discus-ions  on  the  currency  which  have 
taken  place  in  England.  It  had  its  origin  \vith 
Mr.  Kicajdo,  v\  ho  devised  a  plan  lor  uniting  in  a 
currency  (lie  uniformity  and  stability  of  specie 
with  I  he  convenience  and  economy  of  p;ipcr  •  and 
soint'  of  the  promini'iit  parts  of  whose  plan  have 
been  rccentlv  attempted  to  he  put  in  practice. — 
The  Bank  of  England  has  a  monopoly  of  the  cir- 


culation lor  sixly-five  miles  around  London  ;  its 
nolea  are  made  legal  tender  except  <iy  itself,  and 
are  the  medium  in  which  the  country  banks  re- 
deem their  bills;  and  the  issue  of  notes  is  separa* 
ted  from  the  business  of  making  discounts  and 
put  in  charge  of  a  distinct  board  of  administra- 
tion, who  attempt  to  regulate  the  amount  of  the 
circulation  not  according  to  the  demand  for  dis- 
counts, but  according  to  the  principles  which 
govern  the  fluctuations  of  a  specie  currency.  This 
system  is  obviously  inapplicable  to  our  condition. 
Instead  of  having  one  central  ^institution,  which 
issues  most  of  the  currency,  a'nd  practically  go- 
verns the  whole,  we  have  hundreds  ot  indepen- 
dent establishments  scattered  over  the  whole 
state.  We  have  no  power  to  make  the  notes  of 
any  a  legal  lender  which  is  an  indispensable  part 
of  the  scheme.  And  instead  of  a  board  of  com- 
petent officers;  to  administer  the  circulation  of  a 
single  institution,  the  proposition  is  that  we  leave 
the  legislature  to  administer,  without  anv  rules 
prescribed  to  them  or  mode  established,  the  cir- 
culation of  several  hundreds  of  independent  in- 
stitution*. 

I  have  long  been  of  opinion  that  government 
should  either  separate  the  function  of  issuing  cur- 
rency  from  the  other  business  of  banking,  and  as- 
sume to  itself  that  office,  or  should  allow  it  to  be 
a  mere  incident  ol  trade,  to  be  governed  by  the 
laws  of  trade.  If  the  present  proposition  were 
that  the  government  should  do  the  former — if  it 
were  a  complete  and  effectual  plan — if  indeed  it 
would  accomplish  anything  ot  value  towards  the 
object,  it  would  be  worthy  of  great  consideration. 
But  I  see  in  it  no  approximation  to  such  a  result, 
or  any  beneficial  result,  but  merely  an  officious in- 
termedling  of  government" with  what  it  after  all 
leaves  to  the  practical  regulation  of  trade-an  inter- 
medling  which  is  wrong,  because  it  concede* 
the  principle  that  the  office  which  it  assumes,  is  a 
mere  matter  of  business — an  intermedling  which 
does  not  go  far  enough  to  attain  any  possible  good, 
and  is  sure  to  produce  great  mischief.  '  The  ques- 
tion whether  the  government  should  assume  the 
function  of  issuing  circulating  credits,  or  should 
leave  it  to  be  an  incident  ot  trade,  I  will  not  now 
discuss,  but  I  will  remark  that  it  seems  to  be  im- 
piarticable  fo  adopt  in  this  country  a  system  so 
artificial  as  that  of  England.  The  distribution  of 
powers  between  the  National  and  State  Govern- 
ments, would  prevent  either  from  doing  what 
would  be  indispensable  to  the  execution  of  such 
a  scheme,  and  in  oiher  respects  the  system  is  not 
adapted  fo  our  institutions  or  condition. 

Mr.  MANN  demanded  the  previous  question. 
It  was  seconded. 

The  main  question  was  ordered  ;  so  were  the 
ayes  and  noes,  and  resulted :  ayes  58',  noes  42. 

So  the  section  was  reconsidered. 

Mr.  JONES  moved  the  previous  question  on 
the  adoption  of  the  section. 

It  was  seconded. 

Mr.  CAMBRELENG  deemed  this  the  most  im- 
portant section  that  could  be  passed  upon  by  the 
convention  and  therefore  he  demanded  the  ayes 
and  noes  on  the  adoption  of  the  section  :  and  they 
resulted  Ayes  44  noes  58.  So  the  section  was 
rejected. 

AYES— Messrs.  Angfl,  Bascom,  Bowdish,  Brnndage, 
Cambreleng,  R.Campbell,  jr.  Clark,  Clyde,  Cuddeback 
Dana,  Dorlon,  Flanders,  Harrison,  Hart,  Hoffman,  Hotel* 


1005 


Witbeck,  Wood,  Yawger,  Youngs— 44 

NAYS— Messrs.  Allen,  Archer,  Ayratilt,  F.  F.  Backus, 
Baker  Bergen,  Bruce,  Bull,  Burr,  Candee,  Chamberlain, 
Conely,  Cook,  Crooker.  Danforth,  Dodd,  Dubofc,  Forsyth, 
Gebhard,  Graham,  Greene,  Harris,  Hawley,  Kemble,  Ken- 
nedy, Kirkland.  Looinis.  McNeil,  Marvin,  Maxwell,  Mil- 
ler,  Munro,  Murphy,  Nicholas,  O'Conor,  Parish,  Patter- 
son, Penninian.  Khoades,  Richmond,  Shaver,  Shaw.  Sim- 
mons, Smith,  E.  Spencer,  W.  H.  Spencer,  Stow,  Strong, 
Tallmadse  W.Taylor,  Tilden,  Townsenrt,  Van  Schoon- 
hove™  Wa'rd,  Warren,'  A.  Wright,  W.B.  Wright,  Young 
—68. 

The  Convention  took  up  the  unfinished  busi- 
ness, being  the  report  on 

INCORPORATIONS,  OTHER  THAN  BANKING  AND 

MUNICIPAL. 

Mr.  LOO  MIS  after  alluding  to  the  previous  ac- 
tion of  the  Convention  on  this  article,  and  the 
difference  of  opinion  entertained  by  himself  and 
Mr.  JORDAN,  as  to  the  proper  construction  given 
to  the  language  of  the  section  under  consideration, 
expressed  nis  willingness  that  his  own  amend- 
ment, and  that  of  Mr.  JORDAN  should  becombin 
ed  in  one  proposition. 

Mr.  JORDAN  expressed  his  concurrence  in  the 
views  expressed  by  Mr.  LOOMIS. 

The  question  being  on  the  amendment  pro- 
posed the  other  day  by  Mr.  MURPHY, 

Mr.  MURPHY  said  that  the  first  part  of  the 
section  proposed  not  to  allow  the  legislature  to 
grant  exclusive  privileges  while  the  amendmenA 
of  Mr.  JORDAN  proposed  to  allow  them  to  do  it 
He  could  net  conceive  the  propriety  of  adopting 
such  a  section  as  that.  He  was  in  favor  of  gene- 
ral laws  for  corporations,  but  he  confessed  thai 
from  the  arguments  here  and  his  own  delibera^ 
tions  he  was  satisfied  that  general  laws  would  no 
be  practical  for  all  purposes.  All  he  desired  to 
accomplish  was  that  the  legislature  should  be  en 
joined  to  pass  general  laws  in  all  cases  where 
they  would  be  practical.  In  some  cases  citiei 
should  have  exclusive  privileges,  and  the  exclu 
sive  privilege  of  taking  toll  should  be  granted  in 
the  cases  of  railroads,  &c. 

Mr.  JORDAN  said  all  that  difficulty  arose  from 
defining  exclusive  privileges  and  special  privi 
leges  to  mean  the  same  thing.  Exclusive  privi 
leges  he  held  to  be  what  was  granted  to  one  an< 
not  to  another.  The  granting  of  a  certain  rout 
to  a  company  and  prohibiting  the  construction  c 
any  other  way  within  a  certain  distance  would  b 
an'exclusive  privilege.  To  grant  this  right  o 
way  without  this  prohibition,  would  be  merely 
special  privilege.  In  the  one  case  it  would  be 
monopoly,  and  in  the  other  it  would  be  throwin 
open  the  matter  to  free  competition.  Those  wh 
were  in  favor  of  exclusive  privileges  under  thi 
construction  would  vote  for  the  amendment  o 
Mr.  MURPHY. 

Mr.  SIMMONS  urged  that  no  proposition  < 
this  kind,  upon  which  there  could  be  so  muc 
hair-splitting,  should  be  adopted  in  the  Const 
tution. 

Mr.  MURPHY'S  intentions  were  the  same  a 
those  of  the  gentleman  from  Columbia,  and  bein 
opposed  to  exclusive  privileges,  and  believin 
that  the  distinction  which  had  been  alluded 
by  that  gentleman  might  be  drawn,  he  vvou] 
withdraw  his  amendment. 


Mr.  SWACKHAMER  moved  to  amend  by  ad- 
ing  the  word  "  first,"  after  the  word  "  compen- 
ation." 

Mr.  PERKINS  suggested  a  difficulty,  that  if 
le  section,  as  now  amended,  was  adopted,  that 
le  legislature  could  not  allow,  for  instance,  great  - 
r  tolls  for  passing  over  a  road  in  one  section  cf 
ie  country  than  in  another.  In  other  words,  he 
eared  it  would  not  allow  the  legislature  to  adopt 
ie  privileges  of  corporations  to  the  circum- 
tances  under  which  they  were  adopted.  Such, 
ie  feared,  would  be  the  effect  if  the  legislature 
jvere  required  to  pass  only  general  laws  on  this 
ubject.  They  could  not  reduce  the  tolls  on  one 
oad  without  reducing  them  on  all.  He  feared, 
t  any  rate,  that  the  section  would  give  rise  to 
nuch  litigation  and  confusion  of  construction. — 
f  the  Convention  agreed  with  him,  therefore, 
hey  never  could  pass  the  section — at  least  in  its 
•resent  language. 

Mr-  SWAtKHAMER  moved  the  previous  ques- 
ionon  theseciion  and  amendment— but  withdrew 
t  at  the  request  of 

Mr.  STETSON,  who  opposed  the  amendment, 
jointing  oui  the  difficulties  that  would  arise  there- 
rom.  He  renewed  the  call  tor  the  previous  ques- 
ion. 

There  was  no  second, 

Mr.  BASCUM  then  moved  the  previous  ques- 
ion  on  the  amendment  ot  Mr.  SWACKHAMER. 

There  was  a  second,  and  the  main  question 
ordered. 

Mr.  SWACKHAMER'S  amendment  was  rejected. 
Mr.   RICHiViOIND    briefly    opposed  the  amend- 
ment of  Mr.   LOOMIS,  as  being  complex  and  diffi- 
cult of  being  undei  stood. 

Mr.  JORDAN  replied,  insisting  that  the  section 
was  noi  of  that  character.  Mr.  J  also  further  ex- 
plained  what  he  considered  to  be  the  distinction 
Between  "exclusive"  and  "especial"  privilege. 
The  objections  urged  by  Mr.  PARKINS  he  denied 
would  apply  to  this  section.  It  would  only  apply 
where  two  railroads  were  exactly  alike,  kniilt  on 
the  same  route,  and  similar  in  every  respect.  It 
appeared  to  him  that  the  opposition  to  this  section 
was  much  of  it  for  the  mere  sake  of  opposition. 

Mr.  VAN  SCHOONHOVEN  liked  the  principle 
of  the  proposition  very  well,  and  would  vole  for 
it  it  it  should  be  so  amended  as  to  require  a  two- 
third  vote  on  the  part  cf  the  legislature  to  grant 
these  privileges.  Mr.  V.  S.  proposed  an  amend- 
ment, to  come  in  alter  the  end  to  effect  thai  object. 

Mr.  LOOMIS  urged  that  expeiience  had  shown 
that  this  two- thirds  provision  had  been  more  ef- 
fectual to  prevent  the  correction  of  abuses  than 
to  operate  beneficially  the  other  way. 

Mr.  VAN  SCHOONHOVEIS  only  desired  that 
this  vote  should  be  required  when  the  right  of 
eminent  domain  was  to  be  granted.  He  was  wil- 
ling that  their  charters  should  be  modified  by  a 
majority  vote. 

Mr.  LOOMIS:  How  would  you  reduce  tolls. 

Mr."  VAN  SCHOONHOVEN  said  there  neve 
was  any  difficulty  in  getting  a  two-third  vote  for 
such  a  purpose. 

Mr.  LOOMJS  said  there  had  been  a  great  diffi- 
culty found  on  that  BCi 

Mr.  VAN  SCHOONHOVEN  asked  for  the  ayes 
and  nays  on  his  amendment,  arid  they  were  or- 
dered. 


1006 


Mr.  WORDEN  could  not  concur  in  the  propri- 
ety of  incorporating  mere  abstractions  in  the  con- 
stitution, which  would  only  lead  to  confusion. — 
He  was  convinced  that  it  would  be  totally  inap- 
plicable and  inadequate  to  the  wants  of  the  com- 
munity. He  did  not  believe  there  was  an  intelli- 
gent man  on  the  floor  who  could  tell  what  this 
section  meant.  He  deprecated  the  adoption  of 
any  such  provision  in  the  constitution.  The  arti- 
cle should  either  be  recommitted  or  else  the  pro- 
positions should  be  printed.  He  could  not  vote 
upon  it  understandingly  now.  He  moved  that  the 
section  be  recommitted  with  instructions  to  re- 
port complete  to-morrow  morning. 

Mr.  MARVIN  continued  the  debate,  when 

Mr.  WORDEN  expressed  his  concurrence  in 
what  he  conceived  to  be  the  object  of  this  section 
— that  is  to  require  general  laws  for  the  forma- 
tion of  corporations,  but  allowing  the  legislature 
to  grant  to  any  of  those  corporations  the  favored 
special  privileges  that  might  be  required  in  lo- 
calities, &c.  What  he  desired  was  to  get  the  sec- 
tion into  such  language  as  would  attain  that  ob- 
ject, and  hence  his  motion  to  recommit. 

After  some  further  conversation,  Mr.  WOR- 
DEN withdrew  his  motion. 

Mr.  VAN  SCHOONHOVEN  modified  his  a- 
mendment  so  as  to  apply  the  two  third  clause 
to  special  laws  conferring  grants,  &c.,  and  called 
for  the  yeas  and  nays  thereon,  and  there  were 
yeas  52,  nays  44. 

Mr.  BERGEN  called  for  the  previous  question, 
and  there  was  a  second  and  the  main  question 
ordered. 

The  question  was  then  taken  on  the  amend- 
ment of  Mr.  LOOMIS  as  amended.  It  was  adop- 
ted, ayes  58,  nays  37. 

The  question  was  then  on  the  proposition  of 
Mr.  MARVIN  to  substitute  the  following  for  the 
section : — 

§  1.  The  legislature  may  pass  general  laws  authorizing 
persons  to  be  erected  into  a  body  corporate  for  banking, 
manufacturing,  religious  and  such  other  purposes  as  the 
legislature  may  deem  sate  and  practicable,  and  under  such 
restrictions  arid  conditions,  and  with  such  powers  and  lim- 
itations as  shall  be  provided  in  such  laws;  but  no  law  shall 
embrace  more  than  one  species  or  class  of  corporations, 
nor  shall  the  legislature  grant  any  special  act  of  incorpo- 
ration in  any  case  provided  for  in  such  general  laws. 

It  was  adopted,  ayes  53,  noes  50. 

Mr.  LOOMIS  laid  on  the  table  a  motion  for  a 
reconsideration  of  this  vote. 

Mr  MURPHY  moved  to  amend  by  substituting 
the  word  "  shall"  for  "  may",  so  as  to  make  it 
mandatory  on  the  legislature  to  pass  general  laws. 

The  CHAIR  (Mr.  PATTERSON)  decided  that  the 
motion  would  not  be  now  in  order. 

Mr.  A.  WRIGHT/asked  unanimous  consent  that 
the  amendment  might  be  adopted. 

Mr.  BASCOM  objected. 

The  question  was  then  taken  on  'he  section  as 
amended,  and  there  were  ayes  53,  nays  51. 

So  the  section  was  adopted. 

Mr.  T1LDEN  moved  to  refer  the  section  to  a 
select  committee  to  report  complete  to-morrow. 

Mr.  WORDEN  contended  thai  such  a  motion 
was  not  now  in  order.  The  action  just  had  was 
final. 

The  CHAIR  decided  the  motion  to  be  in  order. 

Mr  CAMBRELENG  suggested  that  the  whole 
article  should  be  recommitted. 

Mr.  O'CONOR  moved  to  amend  by  instructing 


trie  committee  to  report  the  following   two  sec- 
tions : 

§  I.  Provision  shall  be  made  by  law,  as  far  as  practica- 
ble, enabling  persons  to  become  incorporated  for  manufac- 
turing, religious,  charitable,  and  for  other  purposes. 

§  2.  Dues  from  corporations  shall  be  secured  by  such  in- 
dividual liability  of  the  corporators,  and  other  means,  as 
may  be  prescribed  by  law. 

Messrs.  LOOMIS,  MARVIN  and  RUSSELL 
continued  the  debate  on  the  motion,  when 

Mr.  SWACKHAMER  moved  to  amend  by  strik. 
ng  out  the  instruction  ol  Mr.  O'CONOR 

Mr.  PERKINS  also  sustained  this  motion. 

Mr.  VAN  SCHOONHOVEN  hoped  the  subject 
would  not  be  sent  back  at  all,  but  if  it  was,  that 
there  should  be  no  instructions  attached  to  it. 

Mr.  BERGEN  asked  for  the  previous  question, 
but  withdrew  it  at  the  request  of 

Mr.  O'CONOR,  who  further  explained  his 
amendment.  On  concluding,  he  renewed  the  mo- 
tion for  the  previous  question,  and  it  was  second- 
ed, &c. 

Mr.  O'CONOR'S  motion  was  negatived,  35  to  49. 

The  question  recurred  on  Mr.  TILDEN'S  motion 
to  refer  the  whole  article  with  instructions  to  re- 
port complete  to-morrow. 

Mr.  PATTERSON  called  for  a  division. 

Mr.  TILDEN  consented  to  withdraw  the  in- 
structions, and  the  number  of  the  committee  was 
fixed  at  five. 

The  yeas  and  nays  were  then  taken  on  Mr.  TIL- 
DEN'S  motion,  and  were  yeas  53,  nays  44. 

The  Convention  then  took  a  recess. 

AFTERNOON  SESSION. 

The  Convention,  pursuant  to  previous  order, 
took  up  the  report  of  committee  No.  7,  on  the 
election  of  LOCAL  OFFICERS. 

$  1.  Sheriffs,  clerks  of  counties,  including  the  register 
and  clerk  of  the  city  and  county  ol  New-York,  coroners, 
not  exceeding  four  in  each  county,  and  district  attorneys, 
shall  be  chosen  by  the  electors  of  the  respective  counties, 
once  in  every  two  years,  and  as  often  as  -vacancies  shall 
happen.  Sheriff's  shall  hold  no  other  office,  and  be  ineligi- 
ble for  the  next  two  years  after  the  termination  of  their 
offices.  They  may  be  required,  by  law,  to  renew  their 
security,  from  time  to  time  ;  and  in  default  of  giving  such 
new  security,  their  offices  shall  be  deemed  vacant.  But 
the  county  shall  never  be  made  responsible  for  the  acts  of 
the  sheriff;  and  the  governor  may  remove  any  such  offi- 
cer, except  district  attorney,  within  th«  term  for  which  he 
shall  have  been  elected  ;  giving  to  such  officer  a  copy  of 
the  charges  against  him,  and  an  opportunity  of  being  heard 
in  his  defence. 

Mr.  ANGEL  said  there  were  a  number  of  local 
officers  who  were  not  specifically  provided  for  in 
their  report,  from  the  difficulty  or  changing  the 
mode  of  appointment  \  it  had  been  left  to  the  le- 
gislature to  decide  as  to  their  tenure  of  office  and 
mode  of  appointment.  The  committee  had  en- 
deavored, however  as  far  as  possible,  to  strip  the 
Executive  of  patronage,— believing  that  it  was  de- 
sirable that  this  central  patronage  and  influence 
should  be  diminished,  if  not  entirely  obliterated. 
This  had  been  a  source  of  great  complaint,  and 
there  seemed  to  be  a  general  disposition  to  cut 
this  thing  all  loose  from  the  capitol  here,  and 
throw  these  officers  into  the  hands  of  the  people, 
who  were  no  doubt  the  best  depositories  of  it. — 
Mr.  A.  enumerated  the  different  classes  of  officers 
now  appointed  by  the  Governor  and  Senate,  show, 
ing  which  of  them  had  been  done  away  with  by 
the  present  Constitution,  and  how  far  the  article 


1007 


proposed  to  go  in  respect  to  others.  But  the  ar- 
ticle spoke  for  itself,  and  he  should  be  happy  to 
ijear  any  suggestions  fhat  would  improve  it. 

Mr.  BASCOM  moved  to  amend  by  striking  out 
the  words  "  district  attorney."  He  preferred  that 
they  should  be  appointed  by  the  supervisors.  Let 
the  district  attorney  discharge  his  duty  ever  so 
well,  he  could  not,  if  elected,  escape  the  imputa- 
tion that  he  had  m  view  his  re-election. 

Mr.  ANGEL  said  he  believed  it  to  be  the  pub- 
lic wish  to  have  this  officer  in  their  own  hands  ; 
and  hence  he  consented  to  this  provision. 

Mr.  SWACKHAMER  hoped  it  would  not  be 
stricken  out.     He  was  the  people's  officer,  and 
there  was  much  propriety  in  their  electing  him. 
Mr.  BASCOM'S  motion  was  lost. 
Mr.   FORSYTH    moved  to  strike   out  "two 
years"  in  the  fourth  line,  and  insert  "  three  years." 
*   Mr.  SIMMONS  and  Mr.  PATTERSON  advoca- 
ted I  lie  "three  years'*  term. 

Mr.  ANGEL  said  he  was  in  favor  of  the  three 
yeais'  term:  but  was  over-ruled  in  committee. 

Mr.  ARCHER  wanted  power  to  return  frequent 
ly  to  the  people.  He  said  there  was  a  difference 
of  opinion  in  the  committee  on  this  point.  He 
was  himself  for  a  two  years' term.  The  spirit  ot 
the  age  favored  the  return  of  power  frequently  to 
its  source.  And  why  should  a  sheriff  hold  longer 
than  your  governor,  senators,  &c., — longer  indeed 
than  any  officer,  except  your  judges? 

Mr.  SWACKH4MER  Why  then  make  him 
ineligible,  and  an  exception  in  that  respect  from 
all  the  rest? 

Mr.  ARCHER  had  no  objection  to  striking  that 
out. 

Mr.  FORSYTH  insisted  that  we  should  not  g< 
off  upon  a  mere  abstraction,  as  to  the  frequent  re 
turn  of  powtr  to  the  people.  The  practical  effeci 
of  this  restriction  should  be  the  controlling  con- 
sideration And  he  could  not  see  the  analogy  be 
tween  the  duties  of  this  officer  and  those  of  gov 
ernor  and  senator. 

Mr.  RICHMOND  thought  that  the  sheriff  hek 
in  his  hands,  through  the  patronage  of  his  office 
and  the  character  of  his  official  duties,  an  influ 
ence  which  would  secure  his  re-election  in  des 
pite  of  all  kinds  of  opposition,  even  though 
there  should  be  a  strong  desire  among  the  citizen 
to  give  the  office  to  some  other  individual.  Hi 
deputies  located  in  different  parts  of  the  county 
would  bring  an  influence  to  bear  in  the  matte 
that  would  tell  most  effectively.  He  was  in  fa 
vor  of  having  him  ineligible  for  the  next  term, 
in  the  present  Constitution. 

Mr.  KIRKLAND  advocated  the  striking  ou 
of  the  clause  which  rendered  these  officers  ineli 
gible. 

Mr.  STRONG  opposed  it,  from  similar  reason 
to  those  urged  by  Mr.  RICHMOND.  In  Monro 
county  it  had  been  found  difficult  to  break  up  th 
rule  that  the  sheriff  should  be  selected  from  a 
mong  the  deputies,  thus  securing  the  appoint 
ment  from  the  same  class  for  years  in  succession 
He  was  in  favor  of  retaining  the  term  of  tw 
years,  as  in  the  report.  This  was  long  enough 
and  sheriffs  would  get  rich  enough  in  thai  time. 
Mr.  FORSYTH  demanded  the  ayes  and  noe 
on  his  motion,  and  it  was  agreed  to,  ayes  46,  noe 
42. 
Mr.  VAN  SCHOONHOVENsaid  he  wished  t 


mend  the  first  section,  by  adding  the  words  "by 
nd  with  the  consent  of  the  board  of  supervi- 
ors."  He  thought  the  authority  to  remove  local 
fficers  of  the  class  mentioned,  was  too  great  a 
ower  to  be  given  to  the  Governor.  He  might 
verthrow  the  decision  of  a  county  from  partizan 
motives.  He  moved  to  amend  by  striking  out 
be  words  "except  district  attorneys,"  and  to  pro- 
ide  that  the  removal  should  be  made  by  request 
f  the  board  of  supervisors,  or  by  their  consent, 
"his  would  give  the  officers  against  whom  charges 
ow  preferred  an  opportunity  to  be  tried  by  their 
jeers. 

Mr.  ANGEL  said  the  Governor  had  already 
he  power  to  remove  sheriffs,  &c.,  and  he  had 
lot  heard  that  there  was  any  complaint  against 
hat  power,  which  had  not  been  very  frequently 
ixercised. 

Mr.  STOW  hoped  if  the  amendment  prevailed 
t  would  not  be  imposed  upon  the  Governor  to 
iee  that  the  laws  were  faithfully  executed/  His 
jowers  had  already  been  so  restricted  that  he 
:ould  not  do  much  more  than  look  on  and  wish 
hat  the  government  might  do  well.  He  could 
ee  no  good  reason  for  a  change  of  the  present 
Constitution  in  this  respect 

Mr.  RHOADES  thought  we  might  "leave  well 
enough  alone." 

Mr.  VAN  SCHOONHOVEN  advocated  his 
amendment.  His  objection  was  to  giving  any  one 
fficer  the  power  to  remove  another  without  just 
reason.  He  knew  of  an  instance  when  an  officer 
was  threatened  with  removal,  and  it  was  supposed 
tie  would  have  been.  But  he  had  been  since  fleet- 
ed to  one  of  the  highest  offices  in  the  county, 
which  he  could  not  have  reached  had  theGovein- 
or  interposed,  and  thus  created  an  impression  that 
he  had  committed  some  high-handed  offence. 

Mr.  PATTERSON  had  never  fcll  any  danger 
from  this  provision,  and  he  did  riot  believe  any 

ivsrnor  of  this  State  would  descend  to  the  exer- 
cise of  this  power  from  mere  partisan  motives. — 
He  Knew  that  in  one  instance  it  had  been  exercis- 
ed with  great  propriety. 

Mr.  BASCOM  suggested  that  the  power  of  re- 
moval might  be  properly  transferred  to  the  Su- 
preme Court.  These  officers  might  then  be  tried 
by  a  tribunal  very  capable  of  deciding  whether 
they  had  committed  any  thing  worthy  ot  removal. 
He  would  be  tried  at  home,  too  ;  while  U'  the  Go- 
vernor was  to  decide  there  must  be  the  expense  of 
a  journey  to  the  capital 

Mr.  MARVIN  move  to  amend  by  striking  out 
the  words  "except  district  attorneys,"  and  also  the 
word  "such"  before  "officer,"  and  insert  "in  this 
section  mentioned."  Agreed  to. 

Mr.  KIRKLAND  suggested  alterations  in  the 
wording  of  the  section,  and  il  was  amended,  by 
striking  out  the  "exception  of  district  attorneys," 
and  inserting  a  clause  giving  the  Governor  power 
to  remove  all  the  officers  mentioned  in  the  sec- 
tion Agreed  to. 

Mr  NICHOLAS  moved  to  transpose  the  words 
"and  district  attorneys"  to  the  second  line,  before 
"coroners,"  to  avoid  the  inference  that  there 
might  be  four  of  each  of  the  several  officers  men- 
tioned in  each  county. 

SEVERAL  GENTLEMEN  thought  this  would  not 
remedy  the  matter  ! 

Mr.  HARRIS  moved  to  strike  out  "four  in  each 


1008 


comity,"  and  leave  that  to   the  Legislature.     The 
motion  prcv.iiipii — 15  to  31. 

Mr,  STOVV  nan!  he  .supposed  the  objecl  !I;M] 
been  in  the  first  instance,  to  have  the  sheriff's 
elected  at  the  same  time  throughout  the  State,  but 
by  the  decision  of  the  courts,  when  a  sheriff  was 
elected  to  supply  a  vacancy,  he  served  for  the  full 
term  of  three  years,  thus  breaking  up  the  unifor- 
mity. He  proposed  an  amendment,  providing  that 
that  when  elected  to  fill  a  vacancy,  the  sheriff 
should  serve  only  for  the  unexpired  term. 

Mr.  KENNEDY  asked  what  the  effect  would 
be  of  this  amendment. 

Mr.  STOW  thought  there  should  be  a  time  fixed 
when'the  office  of  a  sheriff  should  expire,  when 
elected  to  fall  a  vacancy.  Otherwise  the  object  of 
electing  for  three  years  might  be  defeated,  so  far 
as  the  intention  was  to  have  these  elections  come 
round  at  a  general  election  By  the  decision  of 
the  courts,  when  a  sheriff  was  elected  to  supply  a 
vacancy,  he  served  for  the  full  term  of  three  years 
Now  when  he  is  elected  to  fill  a  vacancy,  it  shall 
be  understood  to  mean  only  for  the  unexpired 
term  of  the  officer  whose  place  he  has  been  elect- 
ed to  fill. 

Mr.  KIRKLAND  said  that  no  evil  had  arisen 
from  the  law  as  it  now  stands.  It  might,  be  well 
to  avoid  the  additional  excitement  which  the  elec- 
tion of  these  local  officers  at  the  same  time  would 
be  likely  to  produce. 

Mr.  STOW  said  all  these  offices  ought  to  expire 
at  the  same  time;  so  as  to  have  symmetry  and  uni- 
formity in  the  elections. 

Mr.  fORSYTH  said  that  the  language  in  the 
Constitution  as  proposed,  would  cause  too  many 
special  elections.  He  would  like  to  secure  the 
object  of  the  gentleman  from  Erie,  if  it  would  not 
cost  too  much ;  but  he  thought  the  counties  would 
thus  be  too  ofien  put  to  the  expense  of  special 
elections. 

Mr.  PATTERSON  said  that  if  a  vacancy  occurs 
b»t  a  tew  months  before  the  expiralion  of  the 
sheriff's  terra,  the  deputy  sheriff'  discharges  the 
duties 

Mr.  FORSYTH  said  that  the  language  was  that 
an  election  shall  be  held  to  choose  officers  as  often 
as  the  vacancies  -hall  happen.  Mr.  BASCOM 
thought  the  board  of  supervisors  ought  to  appoint, 
these  officers  whenever  vacancies  shall  happen. 

Mr.  STOWS  amendment  was  negatived — ayes 
30,  noes  39. 

Mr.  STOW  moved  to  insert,  after  the  word 
"offices,"  in  the  seventh  line,  as  follows  : — 

"No  person  shall  be  eligible  to  the  office  of  sheriff  Who 
shall  have  been  a  deputy  sheriff,  or  under  sheriff,  within 
one  year  next  preceding  the  election  at  which  the  sheriff 
is  to  be  chosen." 

Mr.  S.  referred  to  the  evils  which  had  resulted 
from  the  election  of  deputies  to  the  office  of 
sheriff— they  procuring  their  nomination  through 
the  influence  of  the  retiring  officer,  who  is  again 
appointed  under  sheriff.  It  also  degraded  the 
character  of  the  officer,  and  tended  to  reduce  the 
responsibilities  of  the  station. 

Mr.  SWACKHAMER  considered  this  a  pro- 
position to  narrow  down  the  material  from 
which  the  people  were  to  select  their  officers.— 
He  would  rather  strike  out  the  clause  prohibit- 
ing the  eligibility  of  sheriff. 

Mr.  STOW  said  this  was  not  a  question  of  prin- 


|  ciple,  but  one  of  enlightened  public  policy. — 

i  Great  evils  had  resulted  from  having  a  succession 

of  officers,  as  from  sheriff  down  to  deputy  sheriff. 

Jt  \\  as  our  right  and  duty,  to  protect  the  public  in 

this  matter. 

Mr.  BASCOM  said  that  if  the  principle  was 
right  to  exclude  the  sheriff  from  election,  it  was 
right  also  to  apply  the  same  principle  to  the 
deputy  sheriffs.  If  it  was  to  be  retained,  and  he 
was  aware  of  no  public  opinion  which  demanded 
it  to  be  stricken  out,  he  would  at  least  go  as  far 
as  the  gentleman  from  Erie. 

Mr.VAN  SCHOONHOVEN  urged  that  the  adop- 
tion of  this*  amendment  would  take  away  one  of 
the  strongest  inducements  for  the  deputy  sheriff 
to  make  himself  a  good  officer.  But  there  was 
no  need  of  throwing  these  restrictions  at  all  upon 
the  people,  in  the  choice  of  their  officers,  and  he 
hoped  it  would  be  voted  down. 

Mr.  MANN  opposed  the  amendment.  It 
would  prevent  the  people  from  the  opportunity 
of  selecting  an  experienced  and  capable  officer. 

Mr.  KIRKLAND  also  opposed  the  amendment. 
It  was  carrying  this  principle  quite  too  far. 

Mr.  A.  W.  YOUNG  took  the  same  view  of  the 
amendment. 

Mr.  STOW  had  no  doubt  that  this  proposition 
was  wise  and  expedient,  but  he  saw  that  the  opin- 
ion of  the  Convention  was  the  other  way,  and  he 
should  withdraw  it. 

SEVERAL  :  Oh,  no,  let's  have  a  vote  upon  it. 

Mr.  SIMMONS  hoped  it  would  be  withdrawn. 

Mr.  STOW  withdrew  his  amendment. 

Mr.  SWACKHAMER  moved  to  strike  out  the 
restriction  as  to  re-eligibility  on  the  part  of  the 
sheriff. 

Mr.  DANA  opposed  the  amendment.  It  was 
but  safe  and  wise  that  the  sheriff  should  be  oblig- 
ed to  wind  up  his  affairs  once  in  three  years. 

Mr.  RICHMOND  asked  for  the  ayes  and  nays, 
but  they  were  not  ordered. 

Mr.  SIMMONS:  Vote  it  down.  The  amend- 
ment was  voted  down  by  acclamation. 

Mr.  DANA  had  consent  to  record  his  vote  in 
the  affirmative  on  the  question  as  to  fixing  the 
term  of  office  of  sheriff'  for  three  years. 

Mr.  STETSON  had  consent  to  record  his  vote 
in  the  negative  on  the  same  question. 

Mr.  CROOKER  gave  notice  of  a  motion  to  re- 
consider the  vote  alluded  to. 

Mr.  HARRISON  moved  an  addition  to  the  sec- 
tion providing  that  in  all  cases  of  vacancy  by  re- 
moval or  death,  the  board  of  supervisors  shall 
fill  the  same  for  the  unexpired  term. 

Mr.  WORDEN  suggested  that  the  amendment 
should  lay  on  the  table  for  the  present,  as  it 
would  come  in  better  at  the  end  of  the  session.  He 
had  drawn  a  section  which  would  cover  the 
whole  ground,  and  which  he  should  offer  at  the 
end  of  the  article. 

Mr.  HARRISON  acceded  to  the  suggestion  of 
Mr.  WORDEJV. 

The  first  section  was  then  adopted  nem  con. 

The  second  section  was  then  read  : 
^  2.  District  attorney  s  may  be  removed  from  office,  at  any 
time  within  the  term  for  which  they  shall  have  been  elect- 
ed, by  the  county  courts  of  the  respective  counties  of  this 
state  giving  to  such  district  attorney  a  copy  of  the  charges 
against  him,  and  an  opportunity  of  being  heard  in  his  de- 
fence. 

Mr.  MARVIN  said  that  the  section  had  become 


1009 


unnecessary  by  the  amendment  just  made   to  the 
first  section,  and  moved  to  strike    it  out.     This 


The  amendment  was  voted  to  lay  on  the  table. 
The  3d  section  was  ih'Mi  read  as  follows: 

,  ,tl  to  \     §  3-  TUB  board  of  supervisors  shall  fix  the  number  of  sti 

Mr     SWACKHAMER    offered  a  section    that    perintendents  of  the  poor,  who    shall  be    chosen  by  the 

/Mil rl  KO      electors,  not  exceeding  three   in  each  county;    and  where 
clerks  or  district  attorneys  should  re-   more  th'anono  shall  ge  chosen  in  any  cou't'y>  they  shall 

ceive  any  fees  of  office,  but  that  both  should  re-  divide  them  into  classes,  so  that  one  shall  be  chosen  each 
ceive  a  salary  to  be  fixed  by  the  board  of  super-  year,  alter  the  first  election 

visors,  the  same  to  be  neither  increased  nor  di-  jyir>  ANGEL  moved  to  strke  out  "each"  in  the 
minished  during  their  continuance  in  office.  tne  third  line,  and  insert  "any."  Adopted. 

Mr.  SWACKHAMER  thought  a  due  regard  to  Mr.  STETSON  inquired  if  the  gentleman  was 
consistency  would  justify  him  in  believing  that  so  certain  as  to  the  necessity  of  the  continuance 
the  section  he  had  offered  would  pass.  They  had  ot  tne  ojfice  Of  superintendents  of  the  poor,  as  to 
already  very  properly  abolished  all  fees  for  judi-  provjde  tor  its  constitutional  guarantee, 
cial  officers  except  justices  of  the  peace— he  re-  ]y|r  ANGEL  was  willing  to  have  it  amended  so 
gretted  that  they  were  not  included  also — and  he  aa  ,0  rneer  ,njs  difficulty. 

could  see  no  reason  why  the  reform  should  not  be  Mr  STETSON  suggested  it  would  be  better  to 
•extended  to  the  class  of  officers  named  in  the  pro-  jeaye  jt  to  t[le  legislature. 

posed  section.  Many  of  these  officers  were  an-  jyir  ANGEL  would  submit  to  the  will  of  the 
nually  receiving  lees  amounting  to  from  five to  Convention.  There  had  been  great  complaint  on 
six  thousand  dollars  for  nominal  services,  while  tnis  subject  in  his  county. 

the  most  able  judges  got  only  about  half  that  sum.  Mr.  SIMMONS  urited  that  the  amendment 
These  heavy  taxes  or  charges  had  become  one-  shouj  j  [,e  stricken  out.  He  preferred  to  leave  the 
rous  to  the  people.  Besides  it  was  holding  out  a  Inatter  lo  the  legislature,  to  be  changed  as  cii- 
bonus  for  political  corruption.  It  was  about  pia-  cumstanres  might  require. 

ces  of  this  kind  that  so  much  bitter  feeling  was  |  jyjr  BERGEN  advocated  the  striking  out  of  the 
excited.  Reduce  the  pay  of  public  officers  to  a 
reasonable  and  fair  compensation,  and  one  of  the 
strongest  inducements  to  political  intrigue  and 
dishonesty  was  removed.  He  could  see  no  diffi- 
culty in  the  way  of  this  reform.  The  fees  should 
go  in  the  county  treasury,  and  the  regulation  re- 
specting the  pay  of  the  officers  would  be  perfect- 
ly safe  with  the  board  of  supervisors.  He  agreed 


section.  Expense  in  his  own  county  (Kings)  had 
demonstrated  that  it  would  be  lar  better  that  it 
should  be  left  to  the  legislature,  to  be  subject  to 
such  alterations  as  circumstances  might  dictate. 

Mr.  ANGEL  way  willing  that  the  section  should 
stricken  out. 

It  was  stricken  out  nem  con. 

The  fourth  section  was  then  read  : 


with  gentlemen  that  the  fees  ought  to  be  reduced  A  coucty  treasurer  shall  be  annuany  chosen  by  the 

where  they  wore  too  high,  but  could  this  be  ex-  eiectors  of  each  county.  He  shall  hold  his  office  for  one 
pected  under  th^  present  system  ?  He  had  sel-  year,  unless  sooner  removed.  He  may  be  required  by  the 
dom  known  the  legislature  to  act  favorably  on  board  of  supervisors  to  give  such  security  as  they  shall 

v,     cii   J  fl^o    approve,  and  to   renew   the  same  from  time  to  time;  and 
matters  of  this  kind.   Gentlemen  who  filled  these  I  ... 


maers  o       is          .  default  in  giving>  or  renewing  such  securjty, 

offices  always  found  personal  and  political  iriends  wnen  required,  his  orlice  shall  be   deemed  vacant.    The 

there   and  it  was  difficult  to  resist  the  strong  ap-  boaid  of  supervisors  of  each  county  shall  have  power  to 

o            w.th  whom  members  ' 


Seals  made  by  local  officers  with  whom  members 
id  not  like  lo  interfere.  He  knew  that  any  at- .  gjving  such  treasurer  a  copy  of  the  charges  against  him, 
tempt  to  reach  abuses  of  this  kind  was  unprofita-  and  an  opportunity  of  being  heard  in  his  defence;  andshall 
ble  business  for  public  men,  yet  he  meant  to  do  have  power  to  fill  all  vacancies  in  the  office  of  county 
his  duty  regardless  of  consequences.  He  hoped  treasurer,  by  appointment,  until  the  next  annual  election, 
some  limit  would  be  fixed  to  the  amount  of  mo-  jyjr>  ANGEL  said  there  had  been  many  com- 
ney  to  be  drawn  from  the  people  for  public  ser-  plaints  against  the  board  of  supervisors  for  log 
vices.  rolling  in  relation  to  tnis  office.  The  committee 

Mr.  ANGEL  said  there  was  a  section  authori-    had  thought  it  better  therefore  to  give  the  election 
zing  the   supervisors  to   fix  the  salaries   of  the U0  the  people, 
district  attorney.  Mr.  KENNEDY  asked    that  the    city  of   New- 

Mr.  STRONG  sustained  the   amendment.     It    York  should  be  excepted. 

was  right  in  principle,  and  one  that  the  people  jyir.  ANGEL  said  there  had  been  so  much  said 
would  sanction,  and  he  thought  this  or  a  similar  \  ,  relation  to  excepting  New  York,  that  we  should 
proposition  should  be  adopted.  make  aliens  of  its  citizens  by  and  by. 

Mr.  NICHOLAS  said  this  subject  was  provid-        Mr  HAWLEY  after  a  few  remarks  proposed  a 

ed  for  in  another  section.     He  moved  to  lay  the   subs'.itute  providing    for  the  election  of    commis- 

proposition  on  the  table.  sioners  for    loaning  money,  whether  of  this  State 

Mr.   SWACKHAMER.      Oh,  no!    Meet  the  or 'of   the  United  States,    as  well  of  county  trea- 

question  fairly — let  us   have   no   whipping  the   surer. 

devil  around  the  stump  in  this  way.  I  don't  like  Mr.  BERGEN  hoped  that  the  Convention  would 
it.  not  endertake  to  make  the  office  of  commissioners 

Mr.  ANGEL  thought  the  amendment  of  the  ,,f  loans  elective.  In  his  county  the  office  went 
gentleman,  would  not  cover  the  whole  ground. —  a  begging. 
He  thought  it  would  be  well  for  the  gentleman  ;\lrT  S  1'ETSON  :  Is  not  the  office  a  State  one  ? 
to  waive  his  amendment  until  the  appropriate  Mr.  BERGKN:  Yes.  He  hoped  it  would  not 
section  was  reached.  be  adopted. 

Mr.  STOW  appealed  to  the  gentleman  to  with-  y^r.  WORDEN  s^id  the  money  lobe  loaned  was 
draw  his  proposition  until  it  became  more  in  state  property,  anil  he  would  not  take  from  the 
order.  1  state  the  control  of  these  commissioners.  He 

101 


1010 


thought  the  whole  matter  had  better  be  left  where 
it  was,  to  the  law  and  the  legislature. 

Mr.  PATTERSON  could  see  no  objection  toth 
election  of  tht-se  officers.     In  Kings   these  officers 
might  go  a  begging,  but  it  did  not   in  other  coun- 
ties.    It  was  one  better  paid  than  any  oiher  office 
in    proportion  to    the  service  rendered  in    many 
counties.     He  did  not  know  that,  it  was  necessary 
to  provide  fur  the  election  of    these  officers;    but 
he  would  prefer  to  have  them  appointed  by  some 
other  power  i  han  the    Executive  and  the    Senate. 

Mr  WORDEN:  Would  ir  not  be  an  induce 
ment  for  the  applicant  (o  go  around  the  county 
promising  loans  to  every  one  if  elected 

Mr.  PATTERSON:  He  would  have  but  very 
little  to  loan. 

Mr.  WORDEN' :     A  very  considerable  amount. 

Mr.  PATTERSON  said  that  at  any  rate  he 
would  prefer  some  other  mode  of  appointment 
than  the  Governor  and  senate. 

Mr,  RUS>ELL  also  opposed  the  amendment. — 
He  concurred  in  the  views  of  Mr.  WORDEN.  He 
would  be  willing  as  a  member  of  the  Legislature 
to  vote  for  a  law  authorising  the  board  of  supervi- 
sors to  appoint  these  officers.  He  thought  it  alia 
a  matter  of  legislation. 

Mr.  HAWLEY  explained  that  his  sole  object 
was  to  reduce  the  executive  patronage. 

Mr.  RUSSELL  said  that  the  present  Constitu- 
tion said  nothing  about  this  office.  It  was  a  mere 
matter  of  legislation. 

Mr.  HAWLEY  further  urged  his  amendment. 
He  was  willing  to  modify  his  amendment  so  as  to 
provide  that  the  board  of  supervisors  should  ap- 
point this  officer. 

Mr.  RUSSELL  insisted  that  no  necessity  ex- 
isted for  making  this  a  constitutional  provision. 

Mr.  RHOADES  said  that  these  officers  were 
obliged  to  give  bonds — and  the  persons  elected 
might  not  be  able  to  give  them.  He  objected  to 
the  proposition. 

Mr.  WORDEN  further  urged  his  objections  to 
the  proposition. 

Mr.  DANFORTH  thought  the  appointment  of 
these  officers  should  be  given  directly  to  the  peo- 
ple. He  preferred  it  to  nesting  the  power  either 
in  the  supervisors,  or  in  the  Governor  and  Sen- 
ate. 

Mr.  HARRIS  hoped  the  whole  section  would 
be  stricken  out.  All  he  desired,  was,  that  in  re- 
lation to  these  county  officers,  the  sixth  section 
should  be  adopted.  That  provided  that  all  coun- 
ty officers,  and  others  not  provided  for  in  this 
Constitution,  should  be  elected  or  appointed  as 
the  legislature  might  direct.  This  would  cover 
the  whole  ground. 

Mr.  HAWLEY  said  this  was  not  a  county  offi- 
cer. Mr.  H.  further  urged  his  amendment. 

Mr.  ST.  JOHN  moved  the  previous  question, 
on  the  amendment.  It  was  seconded,  and  the 
main  question  ordered. 

Mr.  HAWLEY  asked  for  the  ayes  and  nays, 
on  his  amendment,  and  they  were  ordered. 

The  amendment  was  rejected.  Ayes,  13, 
nays,  48. 

Mr.  BERGEN  hoped  the  section  would  be 
stricken  out  as  a  matter  appertaining  solely  to 
legislation.  In  many  counties  a  capable  treasu- 
rer was  retained  in  office  for  years,  under  all 


parties.  This  would  require  an  election  every 
year. 

Mr.  SIMMONS  thought  it  desirable  to  consti- 
tute a  town  treasurer  in  each  town,  around  which 
strong  safe  guards  sjiould  be  thrown.  He  wanted 
a  little  of  the  sub-treasury  here.  He  would  cer- 
tainly not  establish  any  thing  in  the  Constitution 
which  would  preclude  the  establishment  of  such 
a  system.  He  might  perhaps  offer  here  an  amend- 
ment to  carry  out  his  views. 

Mr.  ALLEN  moved  to  except  the  county  of 
New  York  from  the  requisition  of  the  fourth 
section,  as  to  the  election  of  Treasurer. 

Mr  ANGEL  moved  that  the  Convention  ad- 
journ. Agreed  to. 

WEDNESDAY,  (W2nd  day,)  Sept,  30. 

Prayer  by  the  Rev   Mr   BENSON. 

Mr.  TOWNSEND  presented  a  memorial  from 
Brown,  Brothers  &,  Co.,  of  New  York,  lor  an 
equalization  of  taxes,  and  a  state  board  ot  asses- 
sors Referred 

Mr.  BRAYTON,  by  instruction  of  the  commit- 
tee on  revision,  &c.  moved  that  that  commit- 
ee  be  excused  from  attending  the  sittings  of  the 
Convention.  Agreed  lo. 

Mr.  BAKER  called  for  the  question  upon  the 
reconsideration  of  the  vote  upon  the  4th  section 
>f  Mr.  CAMBRELENG'S  report.  (The  individual 
iability  clause.)  He  withdrew  his  motion  tem- 
porarily. 

CLOSING  BUSINESS  OF  THE  CONVENTION. 

Mr.  JONES  said  that  as  they  would  have  to  ad» 
journ  next  Tuesday,  t.e  would  lav  the  following 
un  the  table  till  half  oast  3  P  M.,"  tins  dny  : 

Resolved,  That  after  Saturday  next  the  Convention  will 
not  take  up  and  consider  any  of  the  reports  ol  tiie  standing 
committees  ot  this  body  then  unacted" on,  but  will  on  the 
ensuing  Monday  proceed  to  consider  the  report  of  the  se- 
lect committee  appointed  to  revise  the  several  amendments 
adopted  by  the  Convention. 

CURRENCY  AND  BANKING. 
Mr.  BAKER  moved  to  take  up  the  motion  to  re- 
consider  vaiious  sections  ot  the  article  on  curren- 
cy and   banking.     The   first  question    was  on  the 
adoption  of  the  4th  section. 

Mr.  KIRKLAND'S  amendment  to  the  section 
was  then  read.  (I'  has  been  already  given.) 

Mr.  TOWNSEND  hoped  the  report  would  not 
>e  disturbed.  He  called  (or  the  yeas  and  navs 
hereon,  and  'hey  were  ordered. 

Mr.  BAKER  said  that  perhaps  the  report  ot  the 
l>ecial  committee  would  have  an  effect  to  accom- 
plish the  settlement  of  the  questions  involved  in 
hese  matters,  and  he  therefore  withdrew  his 
notion 

Mr.  CAMBRELING  had  hoped  that  this  ques- 
ion  was  settled      He  wished  to  make   the  whole 
tanking  system  of  this  state   stronger  than  it  is.in 
any  other  state,  as  it  ought  to  be.     It  wa*    lor  tiie 
good  of  the  strong  batiks  that  there  should  be  this 
bility    clause;    so  as  to    strengthen    the  weak 
>anks.     The  strong  banks    did  riot  care  a  feather 
bout  this   iability.     He  (Mr.  C.)    had  surrender- 
ed his  own,  views  of    more  stringent   liability,   to 
ircom  nodate  the  gentleman   from  Columbia  (Mr. 
(ORDAN)  ,<nd  otheis  in  the  Convention,  to  ensure 
•ouciliation,  and  the  passageotthe  liability  clause 
n  as  strong  a  shape  as  he  could  get  it.     He  (rust- 
ed the  good  sense  of  the  Convention    would  pre. 


1011 


Tent  ttitjin  trom  re-considei  ing  this  section.  He 
was  called  awav  from  the  city  lor  a  few  days,  and 
should  leave  this  evening,  and  he  desired  a  dispo 
sifion  nf  this  matter  now  as  he  was  anxious  to  he 
present  when  it  wns  acted  upon.  His  desire  was 
to  strengthen  (he  banks,  and  that  was  the  interest 
of  the  twenty  or  thirt>  gentlemen  on  thisfloorwho 
were  either  banker*  or  holders  of  stocks  in  banks; 
and  the  section  would  not  accomplish  that  pur 
pose.  But  he  was  opposed  to  a  reconsideration, 
for  the  question  had  been  decided  satisfactorily  by 
the  compromise  on  the  amendment  of  Mr.  JOR- 
DAN. 

Mr.  KIRKLAND  followed  briefly. 

Mr  RUSSELL  said  that  it  was  best  that  the 
subject  should  be  postponed  until  Monday  at  10 
o'clock,  A.  M.,  at  which  time  the  gentleman  from 
Suffolk  would  be  present  ;  and  at  that  lime  gentle- 
men might  subnvt  the  amendment  they  desired  to 
«ee  adopted.  On  that  day  a  full  attendance  might 
be  expected,  and  then  the  final  vote  would  be 
more  sat.stnotory. 

Mr.  BAKER  consented  to  postpone  the  consid. 
eration  of  thi*  matter  till  Monday  next,  at  lu 
o'clock. 

RIGHTS  AND  PRIVILEGES. 

Mr.  SWACKHAMER  moved  fo  discharge  the 
committee  of  the  whole  from  the  consideration  ol 
report  No.  II,  on  rights  arid  privileges,  and  that  ii 
be  taken  up  next  after  that  on  the  elective  Iran- 
chise. 

Mr.  LOOMIS  said  that  in  a  very  short  time  we 
should  h  «ve  M  take  up  the  report  or.  the  commit- 
tee on  the  revis. -in  of  the  Constitution.  We  could 
better  spen-1  two  or  three  days  in  considering  the 
whole  body  of  the  Constitution,  than  separate  ar- 
ticles. He  had  supposed  that  this  report  would 
be  placed  in  the  report  of  th"  revising  committee, 
and  when  the  Conversion  came  to  the  considera- 
tion of  that  report,  this  would  necessarily  have  t< 
be  decided  upon  and  amended.  He  thought  it 
would  be  well  to  make  no  more  special  orders 
but  spend  a  few  days  in  discussing  the  general 
report. 

Mr.  AYRAULT  moved  to  lay  the  resolution  on 
the  table.  Agreed  to. 

Mr.  STRONG  moved  to  lay  all  the  other  orders 
of  business  on  the  table,  and  that  the  unfini>hcv 
business  be  taken  up.  Agreed  to. 

UNFINISHED  BUSINESS.— LOCAL   OFFICES. 

The  question  was  on  the  4th  section  of  the  re 
port  of  standing  committee  No.  7. 

Mr.  ALLtN  withdrew  his  amendment  to  the 
section 

Mr.  BASCOM  and  Mr.  MARVIN  moved  to 
strike  out  the  section. 

The  previous  question  was  called  by  Mr.  Rus- 
SELL,  seconded,  ihe  main  question  ordered,  arid  tin 
section  «as  stricken  out. 

The  5th  section  was  read  : — 

(j  5.  Mayors  of  cities  in  the  several  cities  in  this  state, 
shall  be  onosen  annually,  by  the  electors  entitled  to  vote 
for  membei s  of  the  Common  councils  of  such  cities,  re- 
spectively. 

Mr.  CORNKLT.  moved  to  strike  out  the  won* 
''annually."  I  e  wished  Ne»v  York  to  elect  its 
mayor  biennially. 

Mr.  HARRIS  wanted  the  section  stricken  out. 


All  he  wanted  was  to  be   found  in    the  next  sec- 
tion. 

Mr  MORRIS  explained. 

The  amendment  was  withdrawn. 

The  5th  section  was  then  stricken  out. 

The  6th  section  was  then  read  : 

§  6.  All  officers  now  elective  by  the  people  shall  con» 
tinueto  be  elected  All  county  officers  whos"  election  ot 
appointment  is  not  provided  lor  by  this  constitution,  shall 
be  elected  by  the  electors  of  the  i^esjiective  ounties,  or 
appointed  by  the  boards  of  supervisors,  as  the  legislature 
shall  direct.  All  city,  town  andvillige  officers,  whose 
election  or  appointment  is  not  provided  for  by  this  consti 
tution  shall  he  elected  by  the  electors  of  suc.hcities,  towns 
and  villages,  or  appointed  by  such  authorities  thereof,  as 
the  legislature  shall  designate  lor  that  purpose.  All  other 
offic  rs,  whose  election  or  appointment  is  i  ot  provided  lor 
in  this  constitution,  and  all  officers  wnoFe  offices  may 
hereafter  be  created  by  law.  shall  be  elected  by  thepeople> 
or  appointed,  as  the  legislature  may  by  law  direct. 

Mr.  KIRKLAND  moved  to  amend,  by  striking 
out  the  second  sentence  from  "  elected"  to  and 
including  "  direct."  This  was  for  the  purpose  of 
obviating  all  question  as  to  who  were  or  were  not 
county  officers  ;  the  office  of  loan  commissioner 
and  canal  commissioner  having  been  brought  in 
question  heretofore. 

Mr.  ANGEL  said  this  would  derange  the  whole 
design  of  the  section.  Some  question  had  arisen 
whether  loan  commissioners  were  county  officers. 
To  obviate  all  difficulty,  he  moved  to  strike  out 
the  second  sentence  as  follows : 

"  All  county  officers  whose  election  or  appointment  is 
not  provided  for  by  this  constitution,  shall  be  ehctidby 
the  rl  c'ors  of  the  respective  counties,  or  appointed  by  the 
boards  of  supervisors,  as  the  legislature  shall  direct." 

Mr.  ANGEL  thought  this  would  produce  a  de- 
rangement of  the  design  of  the  section, 

Mr.  KIRKLAND  explained. 

Mr.  BASCOM  said  it  would  leave  a  fragment 
of  central  appointing  power,  by  striking  out  the 
sentence;  and  he  was  in  favor  of  retaining  it. 

Mr.  JONES  said  if  the  amendment  prevailed, 
the  power  might  be  given  by  the  legislature  to 
the  central  appointing  power — the  Governor — 
which  it  was  the  desire  of  the  committee  to  a- 
void. 

Mr.  PATTERSON  said  it  would  not  do  to  take 
out  this  provision,  for  it  was  the  best  in  the  sec- 
tion. St-  ike  it  out,  and  the  Governor  might  be 
given  power  to  appoint  county  treasurers. 

Mr.  KIRKLAND  withdrew  his  amendment. 

Mr.  DANA  moved  to  strike  out  all  after  the 
word  "  elected,"  in  the  second  line,  and  down  to 
and  including  the  word  "  purpose"  in  the  ninth 
line. 

Mr.  CROOKER  :  That  is  more  objectionable 
than  the  other. 

Mr.  HARRIS  opposed  the  amendment  of  Mr, 
DANA.  The  section  was  most  admirably  drawn  ; 
fhe  best  drawn  in  the  whole  constitution. 

Mr.  PATTERSON  said  the  amendment  pro- 
posed was  most  ridiculous;  if  carried,  it  would 
give  the  legislature  the  power  to  allow  the  Gov- 
ernor to  appoint  all  these  local  officers. 

Mr.  DANA  explained. 

Mr.  KIRKLAND  said  if  gentlemen  were  will- 
ing  to  run  the  risk  of  the  construction  of  the  lan- 
guage of  the  section,  he  would  withdraw  his  a» 
mendment. 

Mr.  DANA  moved  to  amend   by  striking  out 


1012 


the  second   and  third  clauses,  and  inserting  the 
word  "  and,"  before  "  all,"  in  the  ninth  line. 

Messrs.  HARRIS,  PATTERSON  and  DANA, 
debated  this  amendment. 

Mr.  BAKER  moved  to  amend  the  matter  pro- 
posed to  be  stricken  out,  by  inserting  after  the 
word  "constitution,"  in  the  third  line,  the  words 
"  including  commissioners  of  loans,  and  the  com- 
missioners for  loaning  certain  moneys  of  the  U. 
States,  deposited  with  the  state  of  New-York  for 
safe  keeping." 

Mr.  RUSSELL  said  the  loan  commissioners  of 
the  various  counties  were  really  county  officers. 
This  was  a  very  important  reformation.  Il  eleva- 
ted the  board  of  supervisors,  and  the  article  is 
right  as  it  stands. 

The  commissioners  for  loaning  the  U.  S.  depo- 
site  fund  are  the  trustees  of  the  state,  the  state 
being  responsible  to  the  U.  S.  for  the  reimburse- 
ment of  this  fund,  ought  to  have  the  control  of  it, 
and  should  not  be  tied  up  by  the  constitution. 
The  appointment  of  the  commissioners  ought  to 
be  subject  to  the  direction  of  the  legislature.  If 
the  legislature  should  see  fit,  they  might  give  the 
election  of  the  commissioners  to  the  counties. 
The  counties  are  the  borrowers  and  the  state  is 
the  lender.  If  the  constitution  should  put  it  out 
of  the  power  of  the  legislature  to  designate  and 
appoint  its  trustees  to  manage  the  fund,  and  give 
their  election  to  the  counties,  it  would  be  virtu- 
ally giving  the  exclusive  control  of  the  fund  to 
the  borrowers,  a  principle  that  no  reasonable  man 
would  cherish  or  encourage.  He  could  well  fore- 
see a  state  of  things  that  might  arise  which  would 
jeopardize  the  fund  in  given  counties,  if  the  legis- 
lature should  be  deprived  of  the  control  of  it;  foi 
these  reasons  he  considered  it  highly  improper  to 
adopt  the  proposed  amendment. 

Mr.  ANGEL  said  that  these  loan  commission- 
ers'were  trustees  of  the  state.  He  would  regre 
to  see  the  amendment  adopted.  The  section  was 
left  in  such  a  shape,  that  the  legislature  migh/ 
direct  the  election  or  appointment  of  the  loan 
commissioners  as  they  might  see  fit,  and  this  was 
obviously  proper. 

Mr.  BERGEN  moved  the  previous  question 
and  there  was  a  second,  &c. 

Mr.  BAKER'S  amendment  was  negatived — 
ayes  29,  noes  63. 

Mr.  DANA'S  motion  to  strike  out  the   seconc 
and  third  sections  was  negatived — ayes  6,  noes  85 
Mr.  O'CONOR  moved  to  insert  after  "  villages1 
the  words  "  or  subdivisions  thereof."     In  the  cit 
of  New -York  it  was  necessary  to  elect  officers  in 
large  districts,  which  were  not  wards.  Agreed  to 
The  section  was  then  agreed  to. 
Mr.  LOOMIS  gave   notice  of  a  motion  to   re 
consider  this  last  vote. 
The  7th  section  was  read : 

{j7.  The  several  officers  in  this  article  alluded  to,  sha! 
possess  the  Bowers  and  perform  the  duties  now  provide 
by  law,  and  such  as  the  legislature  shall,  hereafter,  Iron 
time  to  time,  fey  law,  direct. 

Mr.  HARRIS  said  there  was  no  necessity  to 
the  section. 

Mr.  ARCHER  rose  to  obviate  the  same  objec 
tion. 

Mr.  MARVIN  was  of  the  same  opinion. 

Mr.  ANGEL  said  he  had  no  objection  to  hav 
ing  the  section  stricken  out.  It  was  stricken  ou 


The  8th  section  was  then  read : 

^8.  The  legislature  shall  regulate  by  law,  the  fees  or 
ompensation  of  all  county,  town  or  other  officers,  for 
ariose  compensation  no  other  provision  is  made  in  this 
onstitution. 

Mr.  S WACKHAMER  moved  the  following  as 
substitute : 

$  8.  The  legislature  shall  establish  by  law  the  fees  to 
e  paid  to  and  received  by  the  county  clerks  and  district 
ttorneys  ol  the  several  counties  of  this  statefj  and  such 
lerks  and  district  attorneys  shall  account  for  all  fees  re- 
eived  by  them,  to  the  treasurers  of  their  respectize  coun- 
es.  And  the  county  clerk,  district  attorney  and  county 
reasurer  in  the  several  counties,  shall  be  compensated 
or  their  official  services  by  annual  salaries  to  be  fixed  by 
le  boards  of  supervisors  of  such  counties,  and  paid  out  of 
he  treasury  thereof,  which  shall  not  be  increased  or  di- 
linished  during  the  official  term  of  such  county  clerk^ 
istrict  attorney  or  treasurer. 

Mr.  LOOMIS  had  prepared  a  somewhat  simi- 
ar  section  as  a  substitute.  The  mind  of  the  gen- 
leman  from  Kings  had  been  running  in  a  direc- 
ion  with  his  own.  He  had  prepared  a  section 
vhich  he  should  have  offered  if  the  gentleman 
rom  Kings  had  not  made  this  motion. 
Mr.  ST  .  JOHN  moved  to  amend  the  substitute 
y  striking  out  all  after  the  words  "  thereof,"  and 
nsertirig  "  which  shall  not  exceed  the  amount  of 
ees  paid  into  the  treasury  by  such  officers respec- 
ively." 

Mr.  RICHMOND  thought  that  some  alteration 
,vas  required  here. 

Mr  SIMMONS  said  that  a  great  principle  was 
nvolvedrhere,  which  had  been  fully  discussed  for 
ieveral  days  on  the  judiciary  question. 

Mr.  PERKINS  said  that  the  clerk  ought  to  be 
aaid  according  to  the  number  of  folios  he  record- 
ed annually. 

Mr.  SWACKHAMER  said  it  was  a  very  un- 
pleasant thing  to  have  to  differ  with  those  whose 
judgment  he  respected;  but  his  proposition  in- 
volved many  important  matters. 

Mr.  RUGGLES  was  in  favor  of  reducing  the 
fees. 

Mr.  RICHMOND  asked  a  question  that  was 
inaudible. 

Mr.  TOWNSEND  hoped  some  principle  anal- 
agous  to  that  of  Mr.  SWACKHAMER'S,  would  be 
adopted  here. 

Messrs.  RUSSELL,  SWACKHAMER,  PAT- 
TERSON, LOOMIS,  TOWNSEND,  STOW, 
SIMMONS,  RUGGLES,  PERKINS,  and  others 
explained  and  debated  this  proposition. 

The  debate  was  terminated  by  the  previous 
question. 

Mr.  ST.  JOHN'S  amendment  was  negatived. 

Mr.  SWACKHAMER'S  section  was  also^nega- 
tived. 

The  question  being  taken  on  the  amendment  of 
Mr.  ST.  JOHN  to  the  amendment  of  Mr.  SWACK- 
HAMER, it  was  rejected. 

The  question  was  then  taken  on  the  amend- 
ment of  Mr.  S.  and  it  was  rejected. 

The  eighth  section  was  then  read  as  follows : 

&  8.  The  legislature  shall  regulate  by  Taw,  the  fees  or 
compensation  of  all  county,  toun  or  other  officers,  for 
whose  compensation  ao  other  provision  is  made  in  this 
constitution. 

It  was  rejected. 

The  ninth  section  was  then  read,  as  follows : 

&9  The  board  of  supei  visors,  in  each  county,  shall  fix 
the  annual  compensation  of  the  district  attorney,  which 
shall  not  be  changed,  after  his  election,  during  the  term  for 
which  he  shall  have  been  chosen. 


1013 


Mr.  SHAVER  moved  to  amend  by  striking -out 
all  after  the  word  "  attorney,"  in  the  second  line 
of  the  section. 

•  Mr.  MARVIN  thought  the  section  had  better 
be  stricken  out.  He  thought  no  such  rule  should 
be  put  in  the  constitution;  it  was  better  that  the 
matter  should  be  left  to  legislation. 

Mr.  SHAVER  withdrew  his  amendment. 

Mr.  RICHMOND  urged  that  the  section  should 
be  striken  out. 

Mr.  CROOKER  sustained  the  motion  to  strike 
out  as  did  Mr.  SIMMONS  and  Mr.  HARRIS. 

Mr.  BOWDISH  asked  for  the  previous  question, 
and  there  was  a  second,  and  the  main  question 
ordered. 

The  ninth  section  was  striken  out,  ayes  53, 
nays  3^. 

The  tenth  section  was  then  read,  as  follows : 

§  10.  When  the  duration  of  any  office,  is  not  provided 
by  this  constitution,  it  may  be  declared  by  law,  and  if  net 
BO  declared,  such  office  shall  be  Ivid,  during  the  pleasure 
of  the  authority  making  the  appointment. 

Mr.  BASCOM  moved  to  strike  out  all  after  the 
words  "  by  law." 

Mr.  SIMMONS  thought  it  would  be  better  to 
leave  the  section  as  it  stood. 

Mr.  BASCOM  said  that  in  case  the  people 
should  elect  one  of  these  officers  his  term  would 
be  for  life  under  this  section. 

The  amendment  was  rejected  ayes  33,  nays  39. 

The  section  was  then  adopted. 

Mr.  SWACKHAMER  proposed  the  following 
additional  section : 

§  —  The  legislature  shall  not  fix  the  fees  or  compensa- 
tion of  attorney  d  or  counsellors  at  law,  and  the  fees  and 
compen»at.on  now  established  are  abolished;  but  provi- 
sion may  be  made  by  law  for  allowing  to  the  prevailing 
sarty  in  any  suit  as  a  part  of  the  recovery,  an  equitable 
pompensationfor  the  expenses  of  prosecuting  or  defending 
cuch  suit  or  proceeding. 

Mr.  RUSSELL  said  there  was  no  constitution- 
al provision  required  on  this  subject  and  if  there 
was,  this  amendment  belonged  to  the  article  on 
the  judiciary. 

Mr.  BASCOM  sustained  the  proposition. 

Mr.  PATTERSON  said  the  last  clause  allow- 
ed the  legislature  to  fix  an  equitable  compensa- 
tion, and  that  was  but  a  regulation  of  the  fees. — 
This  would  be  doing  for  the  lawyers  what  they 
would  not  dare  do  for  themselves. 

Mr.  HARRIS  also  urged  that  this  would  be 
solely  for  the  benefit  of  the  legal  profession. 

After  some  further  conversation. 

Me.  SWACKHAMER  advocated  his  amend- 
ment as  tending  to  break  down  what  he  now  con- 
sidered to  be  a  monopoly  in  the  legal  profession. 
It  was  very  easy  for  gent^men  to  sneer  down  a 
provision  which  was  to  efte^c  their  pecuniary  in- 
terests. But  he  was  not  to  be  driven  from  his 
position,  in  opposition  to  legal  monopoly,  by  any 
such  attempts.  He  did  not  wish  to  make  war 
upon  the  legal  profession — his  proposition  ^did 
not  effect  their  character  and  dignity  ;  but  in  all 
his  actions  here  he  endeavored  to  follow  the  wish- 
es of  the  people. 

tor,  FORSYTH  asked  for  the  previous  ques- 
tion, and  there  was  a  second  and  the  main  ques- 
tion ordered. 

The  question  was  then  taken  on  the  amend- 
ment of  Mr.  SWACKHAMER  and  there  were  ayes 
29  nays  50. 


Mr.  LOO. MIS  moved  to  amend  the  sixth  sect- 
tion  by  inserting  the  words  "  or  other  county  au- 
thorities," after  the  word  "supervisors,"  in  the 
fifth  line.  He  explained  that,  as  the  section 
stood,  it  prevented  the  sheriff  appointing  his  own 
deputies. 

Messrs.  LOOMIS,  RICHMOND,  SIMMONS 
and  RUSSELL  made  brief  explanations,  and  the 
motion  was  agreed  to. 

Mr.  WORDEN  said  some  provision  should  be 
made,  or  the  sheriffs  to  be  elected  under  the  pre- 
sent constitution,  but  who  would  not  come  into 
office  before  the  first  of  January,  would  be  ousted 
by  the  operation  of  the  new  constitution.  He 
moved  the  reference  of  a  section  to  the  standing 
committee,  from  which  the  article  was  reported, 
as  follows,  with  instructions,  &c. : 

§  — .  All  officers  mentioned  in  this  article  eUcted  by  the 
people  of  the  several  counties  and  hi  office  on  the  1st  day 
of  January  ,1847,  shall  hold  their  respective  oilices  until 
the  1st  day  of  January,  1850,  and  the  terms  of  ail  officers 
mentioned  in  this  article,  and  not  elected  by  the  people, 
in  office  when  this  constitution  takes  effect,  or  appointed 
to  fill  any  vacancy  in  such  office,  shall  expire  on  the  1st  of 
January,  1848,  and  the  legislature  shall  provide  by  law  for 
supplying  any  vacancies  occurring  in  any  office  created 
in  this  article  until  they  shall  be  supplied  by  election  or 
otherwise,  and  all  elections  to  fill  vacancies  shall  be  for 
the  residue  of  the  current  term. 

Mr.  DODD  moved  that  the  article  be  laid  aside 
and  printed.  Carried. 

CORPORATIONS. 

Mr.  TILDEN  from  the  select  committee  to 
whom  was  referred  the  report  on  the  subject  of 
corporations  made  the  following  report: 

§  1.  Corporations  may  be  formed  under  general  laws;  but 
shall  not  be  created  by  special  act,  except  for  municipal 
purposes,  and  in  cases  where,  in  the  judgment  of  the  le- 
gislature, the  objects  of  the  corporation  cannot  be  attained 
under  general  laws.  All  general  laws  and  special  acts 
passed  pursuant  to  this  section,  may  be  altered  from  time 
to  time  or  repealed. 

§  2.  Dues  from  corporations  shall  be  secured  by  such 
individual  liability  of  the  corporators  and  other  means  as 
may  be  prescribed  by  law. 

§'3.  The  term  corporations  as  used  in  this  article  shall 
be  construed  to  include  all  associations  and  joint  stock 
companies  having  any  of  the  powers  of  corporations  not 
possessed  by  individuals  or  partnerships.  And  all  corpo- 
rations shall  have  the  right  10  sue  and  shall  be  subject  to 
be  sued  in  all  the  courts  in  like  causes  as  natural  persons. 

Mr.  TILDEN  said  that  the  following  v^as  a  sub- 
stitute for  the  second  section  proposed  by  the  mi- 
nority  of  the  committee: 

§  2.  Afier  the  1st  of  January,  1860,  every  stockholder  in 
any  corporation  for  pecuniary  gain  or  benefit  to  the  stock- 
holders, except  in  insurance  companies,  shall  in  case  such 
corporation  become  insolvent,  be  liable  for  the  unsatisfied 
liabilities  of  such  corporation,  contracted  whilst  he  was  a 
stockholder,  to  an  amount  in  addition  to  his  stock  equal  to 
the  nominal  amount  of  such  stock.  But  such  liability  shall 
continue  as  to  persons  who  shall  cease  to  be  stockholders 
for  such  time  and  under  such  restrictions  as  shall  be  es- 
tablished by  law. 

Mr.  T.  moved  that  the  report  be  printed  and 
inaue  a  special  order  for  3£  o'clock,  P.  M. 

Mr.  VAN  SCHOONHOVEN  said  that  there 
was  already  a  special  order  for  that  hour. 

Mr.  TILDEN  moved  to  amend  by  taking  it  up 
after  that  special  order. 

This  was  agreed   to. 

THE  ELECTIVE  FRANCHISE,  &c. 

The  Convention  then  took  up  the  icport  on  the 
elective  franchise, 

The  article  having  been  read  through, 


1014 


Trie  first  section  was  then  read  for  amendment, 
as  follows  : 

§  1.  Every  white  male  citizen  of  the  age  of  twenty-one 
years,  who  shall  have  been  a  citizen  for  sixty  days,  and 
an  inhabitant  of  this  sta;e  one  y  ar  next  preceding  any 
election.  and  lor  the  last  six  months  a  residt  nt  of  the  oun- 
ty  where  he  may  otter  his  vae,  shall  be  entitle  i  to  vote  at 
such  election,  in  the  election  district  of  which  he  shall 
hive  been  an  actual  resident  during  the  last  preceding 
sixty  ciays,  and  not  elsewhere,  for  all  officers  that  now  are, 
or  hereafter  rnay  be,  elective  by  the  people. 

Mr.  BRUCE  moved  to  strike  out  the  word 
•«  white." 

Mr.  BURR  said  he  rose  to  make  a  little  speech 
which  wa»  n  it  intended  altogether  for  Buncombe, 
for  he  knew  it  would  be  unpopular  with  his  con- 
stituents.    The  amendment  proposed  by  the  gen- 
tleman from  Madisoi  appealed  Ifke  one   of  small 
amount  ;  but    it  v\as  in  fact  of  vast  magnitude  — 
The  standing  coinmili.ee,  whose  report  we  had  un- 
der consideration,  intended,  it  seems,  that   theco 
lor  of  a    man's  skin  should    be  i  he  lesi  of  his    fit 
nes«  to  approach   tile  btlio  -box.     He   dissented 
from  this  altogether.     Ttie    canymg   out    of  this 
principle  was  i>eset  wi>h  difficulties.     He  did    not 
see  how  a  board  of  inspectors  could,  in  all    cases, 
determine  who  -\ere"wti!le    male   cifzens."     It 
Was  true,  thai  if  an  An^lo  Saxon,   especially    one 
who  did  not  labor  in  I  tie  sun,  should  offer  his  vote, 
he  would  at  once  be  recognized  as  a    white    man. 
and  if  he  had  the  other    necessary    qualifications. 
his  vote  would  at  once  t>e    received      If  the  fnll- 
blooded  Amcan'shoiud  approach  the  poll — what 
ever  his  other  qualifications  were — he  would  rea- 
dily be   known  as    a  man    of  color,   and    his  Vote 
would    be    promptly  rejected      But    suppose    the 
next  man  A- ho  off',.- red  tns  vote  should    be   a   free 
native    bom  cit;z  jn,   whose    father  was   a   white 
man  and  his  mother  a  black  uoman,  and   possess 
ing  all  other  qualifications  of  a  voter;  was  not  he 
entitled  to  voie?     He  should  probably  be  answer 
ed  that"  he  was  not  a  while  man,  his  *  ote  must  b 
rt-j-eted  ;  and*uch  he  supposed  would  be  the  case, 
judging  troin  the  practice  under  our  ptesent    con 
siiiution,  with  a  man  who  had    but    one-sixteenth 
Ot   African  Mood,  and  such  there  \\vie  among    us, 
some  of  whom  had  skins  as  fair  as  many  who  bad  no 
t  i  nt  of  the  African.   iSuppose  one  ot  these  pei  sons 
should    ofter  hi.-:  vote — <  ornmon  fame  said  he  «as 
tainted    with    African   blood — he  denied    it:    ho^ 
stiould  the  inspectors  determine  the  question  ?  were 
they  tod-oa.4  wasdoue  in  Missouri  a  lew  years  since, 
in  the  case  of  a  young  man  who  was  arrested  for  the 
crime  of  having  African  blood  in  his  veins,   and 
dragged  before  a  legal  tribunal,  and  who  plead  not 
guilty;  when   in   the  absence   of  witnessts   the 
court   ordered    that    several    skilful    physicians 
should   be   summoned  to  examine   the   accused, 
and  to  determine  by  their  knowledge  of  physiol- 
ogy* whether  he  had  African  blood  in  his  veins, 
or  not?     They  pronounced   him   a    white    man. 
He  consequently  escaped  being  sold   as  a  slave 
to    pay    the    expense    of   the  prosecution.     Or 
should  the    inspectors  themselves  be   permitted 
to  determine  the  question   on  the  spot?     If  so, 
he  feared   that  sometimes   the  color  of  a  man's 
political  coat  might  be  taken   into  consideratior 
as  well  as  the   color  of  his  skin.     But,    it    was 
proposed   not   only  to   continue  to  withhold  the 
right  of   suffrage   from   a  large   class  oi  native 
born  citizens,  who  did  not  now  enjoy  it,  but  to 


disfranchise  a  numerous  class  who  did — and  for 
no  other  crime  than  that  of  being  "  guilty  of  a 
skin  not  colored  like  our  own."  The  constitu- 
ion  of  1777,  made  no  distinction  in  the  qualifi- 
cation of  voters,  founded  upon  color.  It  wag 
eft  to  the  distinguished  gentlemen  who  framed 
he  constitution  of  1821,  to  introduce  this  objec- 
ionable  feature  into  our  organic  law.  And  with 
due  deference  to  those  gentlemen,  he  must  say 
that  he  then  believed,  and  still  believed,  that 
hey  made  a  retrograde  movement — that  they 
ook  a  step  toward  the  dark  ages.  And  should 
his  Convention  in  1846,  take  still  another  step 
n  that  direction  by  continuing  this  odious  pro- 
'ision,  and  by  disfranchising  another  portion  of 
)ur  tax-paying  native  born  citizens  ?  He  trust- 
ed that  a  majority  of  this  honorable  body  were 
not  prepared  to  perpetrate  such  an  act  of  injus- 
ice ;  and  that  no  such  anti-republican  pro- 
vision as  this  would  appear  as  a  blot  upon 
the  fair  face  of  the  constitution.  But  we  were 
old  of  an  inferior  race,  dwelling  in  our  midst. 
We  talked  about  "  people  ot  color."  What  did 
we  mean  by  that  ?  Those  whose  ancestors  were 
Africans,  ?  He  could  not  concede  that  su  h  a 
distinct  race  existed  among  us.  There  were  in 
dividuals  of  pure  African  bloodj  but  their  num- 
ber was  constantly  diminishing,  and  the  process 
of  amalgamation  which  was  going  on,  in  a  few 
generations  more  would  whiten  them  out  of  ex- 
istence. It  was  his  opinion  that  a  majority  of 
;hose  who  had  African  blood  in  their  veins,  could 
Doast  that  they  had  also  a  portion  of  European 
blood.  And  of  what  parentage  were  these  per- 
sons ?  Not  more  than  one  of  a  thousand  was  the 
child  of  a  white  woman.  They  were  the  chil- 
dren of  our  "  free  white  male  citizens  ;"  and  by 
our  laws  the  child  followed  the  condition  of  the 
father  ;  and  bore  his  name,  regardless  of  the  con- 
dition or  color  of  the  mother.  And  should  we 
undertake  to  deny  the  right  of  suffrage  to  the  sons 
of  our  qualified  electors?  Mr.  B.  was  acquaint- 
ed with  an  individual  of  the  class  we  proposed 
to  disfranchise.  He  was  years  a  neighbor.  Mr. 
B.  knew  him  to  be  a  man  of  intelligence,  re- 
spectability and  moral  worth.  He  owned  a  good 
farm,  and  few  men  managed  farming  better  than 
he.  He  paid  taxes  promptly,  and  performed  all 
the  duties  of  a  good  citizen  ;  but  the  fact  was  (and 
the  man  was  too  honest  to  attempt  to  conceal  it) 
that  one  sixteenth,  or  may  be  one-eighth,  of  the 
blood  that  coursed  his  veins  was  of  the  prescrib- 
ed kind.  This  fact  might  not  be  established  by 
his  color,  his  skin  to  be  sure  was  not  white^-nor 
darker  than  that  of  many  a  sun-burt  farmer,  who 
claimed  to  be  Anglo-Saxon;  but  his  hair  had 
something  of  the  African  curl.  This  man  had 
always  enjoyed  the  right  of  suffrage,  and  had  ex- 
ercised it  much  more  discreetly  than  many  of  his 
neighbors ;  but  he  had  exercised  it  under  that 
ari-tocratic  feature  in  our  constitution— a  proper- 
ty qualification.  Now,  if  we  incorporated  this 
section  into  our  constitution,  unamended — we 
disfranchised  this  worthy  man,  and  for  no  other 
reason  than  that  his  hair  was  a  little  curly  ;  and 
Mr.  B.  was  almost  tempted  to  say— not  more  so 
than  the  hair  of  some  of  us  here.  It  would  be 
no  more  unjust — no  more  an  act  of  tyranny— to  dis- 
franchise a  port. on  of  us  who  occupied  seats  on 
this  floor,  because  our  heads  were  silvered  with 


1015 


age.     Against  such  monstrous  injustice  he  enter- 
ed his  protest  and  recorded  his  name. 

Mi.  bllUCti  said:  In  using  10  address  (he  Con- 
vention in  support  of  the  in  >tion  I  M.iVt'  h<<d  the 
honor  to  submit,  I  ti  .ii  myself  noi  a  In  I  It-  embar 
:  fiom  I  lit'  f.K't  ihai  1  am  smiounded  by  gen- 
tlemen  of  acknowledged  talent  and  ability,  who, 
I  h.tve  reason  to  believe,  will  oppose  tbe  prim  i 
pies  I  bave  risen  t<>  advocate.  Jiut,  convinced,  -a* 
I  am,  ot  ihe  truih  and  justice  of  the  proposition, 
I  am  constraint  d  to  offer  a  n»w  rerriai Us  on  this 
q'ie>tior.,  which  I  consider  one  ol  themos-t  impoi- 
tant  ihat  has  been  under  consideration  during  the 
protracted  session  of  ihis  Convention.  Sir,  the 
natural  and  -acquired  right  ol  man  has  long  since 
been  theoretically  settled  in  this  government,  but 
practically,  a  well  settled  and  established  theory 
lias  been  to  so  great  an  extent  repudiated,  that  a' 
this  period  in  our  history,  there  are  not  a  lew 
among  us  that  seem  disposed  to  contest  the  theo 
ry  that  was  established  by  our  fathers  at  the  very 
commencement  ot  our  National  existence.  Now. 
sir,  let  us  no  back  in  the  history  ot  t-he  world  to 
the  eventful  period  when  "  ihe  morning  star* 
sans  together,"  and  whenDeiry,by  His  Almighty 
power  said  "  let  there  be  light."  At  this  time, 
we  are  informed  "God  created  man  in  His  own 
image,  and  bieathed  into  his  nostrils  the  breath  ol 
lile,"  and  then  it  •>>  as.  that  man's  rights  and  privi- 
leges were  clearly  d.  fined,  arid  from  that  time  t<- 
the  present,  they  have  remained  unchanged,  an') 
man  entitled  to  ihe  lull  possession  ot  them 
all,  except  what  he  forfeited  to  his  creator 
by  disobedience  of  divine  commands. 

And,  sir,  in  the  plan  of  redemption,  Infinite 
wisiiuin  ha-,  ma  Je  no  distinction,  but  on  the  con 
trary  has  -aid  "  whoever  will,  let  him  come  and 
take  of  the  waters  ot  life  freely."  That  "  of  one 
blood  all  the  nations  of  the  Eanh"  aie  treated,  is 
the  declaration  of  holy  writ,  and  the  Declaialion 
of  our  Nation's  Independence  boldly  and  unequivo- 
cally pioclauns  the  same  sentiment,  (haf-  *'  ail  men 
are  created  equal,  and  endowed  by  their  Creatoi 
with  certain  inalienable  right-;,  among  which  is 
life,  liberty,  and  the  pursuit  of  happiness/'  Sir, 
theie  is  no  distinction:  and  whether  a  man  be 
born  in  the  cold  and  banen  regions  of  theNmth 
or  the  warm  and  fruitful  fields  of  the  South,  he  is 
entitled  to  the  same  protection,  and  should  t>e  en- 
dowed with  the  s.nne  rights,  and  have  secured  t 
him  the  same  privilege  as  any  other  ciiizen  ir 
this  land  ot  "  equal  rights  and  equal  privileges. 
Sn,  distinction  in  the  exercise  ot  the  elective 
franchise,  on  account  of  color  or  complexion,  is 
invidious  and  a;iii-iepublican  But  such  a  dis- 
tinction has  existed  in  this  state  since  1820,  in  t 
great  degree,  and  if  the  report  <>'  'he  honoiabh 
gentleman  from  Schor  arie  (Mr.  BOUCK)  is  adopt, 
ed,  will  exist  in  a  still  greater  decree  irian  ha: 
ever  before  been  known.  And  in  this  conviction 
sir,  I  propose  toi-x.iunne  this  report  j  for  wha'evei 
O'her  gt-ntlemen  may  think  of  its  ineiits,  1  confess 
there  is  at  least  one  strange  aiid  unheard  of  posi 
tion,  and  whether  it  is  by  design  or  accident, 
can. lot  sty.  It  is  sutiicieii!  lor  the  argument  tha 
tin  provsion  is  there.  The  fiisi  s-ction  provide 
that  ,ili  white  male  citizens  who  have  attained  '!< 
age  ot  2\  years  and  been  one  yeat  a  resident  ot  thi 
state,  &,c  ,  shall  have  the  right  ol  the  elective 
franchise.  In  the  last  section,  he  ostensibly  pro 


oses  to  give   the  same  light  to    persons    of  color; 
>ui  mark  the  language,  which   1  wi1!  read — "per- 
dns  of  color,  possessing  the  qualifications  nam- 
•d  in  the  first  section  «  f  'his  article,"  shall  have, 
&.C.    Now  ,sir,  what  are  the  qualifications  to  which 
i-tion  of  his  report   reters?     Why.  the  first 
•ne  is  to  be  a  white  male  citizen.     So  the  persons 
f  color  must  become,  by  Some  singular  transforina- 
ion,  (I  will  not  pretend  to  say  what)  white  persons 
f  color,  to  entitle  them  to  the  rights  ot'cmzens  — 
if  we  give  a  "strict  construction"  to  this  article, 
and  especially  if  every  man  is  permitted  to  "con- 
strue the    Constitution  as  he  understands  it"  and 
or  which  he  most  certainly  has  high  authority.) 
3ut  I  am  not  disposed  to  cavil  on  this  point,  and 
will  allow  the  speech  and  not  compel  the  letter 
o be  the  experiment  of  the  honorable  chairman's 
ntention.     To  return   then  to  the  principles  of 
the  Declaration  of  Independence,  that  "all  men 
are  created  equal."     Sir,  what  is  the  plain  import 
>f  this  language  ?  Does  it  mean  anything?  or  is 
t  thrown  in  merely  for  form,   or  ornament?    Sir, 
[   believe   that  the    men   who   "  pledged   their 
fortunes  and  their  sacred  honors"  in  support  of  the 
principles  they  promulgated   in  that  instrument 
meant  what  they  said.     We,  sir,   their  descend- 
ants,  profess   to   adhere   to   the  principles  they 
adopted.     But  I  ask,  if  this  great  principle  is  not 
most  shamefully  violated  in  reference  to  the  col- 
ored men  in   this   state?    How  can  he  be   said  to 
be   equal,  and  at  the  same  time  deprived   of  the 
first  right  that   a   freeman   possesses?  If  he  was 
created  equal"  then  I  maintain  that  no  circum- 
stances whatever  has  destroyed,  or  in  the  least  im- 
paired that  equality,  and  if  equal  in  his  creation, 
equal  by  birth,  equal  in  his  attachment  to  the  go- 
vernment under  which  he  lives,  equal  in  his  rea- 
diness to  defend  that  government,  equal  in  his  ob- 
ligation to  yield  .obedience  to  our  laws,  and  above 
all  equal  as  a  moral   agent    to  his  Creator,   then 
I  ask,  in  the  name   of  common   sense,   common 
honor,  and  common  justice,  if  he   should  not  be 
equal  in  the  exercise  of  the  elective  franchise  ? — 
By  depriving  him  of  his  right  you  not  only  tram- 
ple in   the    dust  your   boasted  motto  of   "  equal 
rights  and  equal  privileges,"   but  you  adopt  the 
very  principle  about  which  our  fathers  complain- 
ed, and  which  was  one  of  the  chief  and  promi- 
nent causes  of  the  American  revolution:  "taxation 
without  representation."  Yes,  sir,  at  this  period  in 
history,  it   is  proposed  to  exclude  from  the  ballot 
box  several  thousand    men,  freemen,  of  like  pas- 
sions with  ourselves,  who  were  born  on  our  soil, 
have  grown  with  the  growth    and  strengthened 
with    the  strength    of  this   prosperous   republic. 
Men  who  fought  for  the  liberties  that  we  now  en- 
joy, and  volunteered   in  the  defence  of  our  com- 
mon country.     Yes,  sir,  in  the  times  that  "  tried 
men's  souls,"   these   very  people  who   are  to  be 
disfranchised,  volunteered,  and  you  need  but  re- 
fer to  the  history  of  the  last  war'to  find  that  they 
acted   a   conspicuous  part    in  that  contest.     Sir, 
the  lakes  of  Erie  and  Champlain  were  crimsoned 
with  thfir  blood  and  they  manned  the  engines  of 
dentil  in  common  with  the  white  man  and  essen- 
tially aided  to  secure  \oiir  ulorious  victories.   But, 
sir,    this  is   not  all.     In  the  very  /uca/ity  where 
the  demon  of  slavery  has  a  dwelling,  we  lind  this 
class  of  American  citizens  repelling  an  invading 
foe.     In  this  connection,  sir,  I  will  read  an  au- 


1016 


thority  on  this  point  (which   I   have  no  doubt 
gentlemen   on   the  other  side  of  this    question 
will   consider   orthodox)   which  will  abundant- 
ly sustain  the  assertion  I   have  made.     I  hold 
in   my  hand  Niles'  Weekly  Register,  volume  7, 
and  read  from   page  205.     "  Proclamation  to  the 
free  colored  inhabitants  of  Louisiana :     Head 
Quarters,  Mobile,  Sept.  21,  1814.     Through  a 
mistaken  policy  you   have  heretofore  been  de- 
prived of  a  participation  in  the  glorious  strug- 
gle for  natural  rights  in   which  our  country 
is   engaged.     This   no  longer  shall  exist.     As 
sons  of  Freedom  you  are  now  called  upon  to  de- 
fend our  most  inestimable  blessing.     As  Ame- 
rica, your  country,  looks  with  confidence  to  her 
adopted  children  for  a  valorous  support.     As 
Fathers,  Husbands  and  Brothers  you  are  sum- 
moned to  rally  round  the  standard  of  the  Ame- 
rican Eagle,  to  defend  all  which  is  dear  in  ex- 

•  istence."°  This,  sir,  is  an  extract  from  the  Pro- 
clamation of  General  Andrew  Jackson,  and  if  I 
had  time  I  would  read  more  but  I  must  pass  on. 
To   this  call  these  people  responded   and  I  will 
now  read  another  extract  from  a  Proclamation  by 
theGeneral  made  in  December  following,  in  which 
he  informs  us  that  his  expectations  in  reference 
to  them  were  "  more  than  realized."    On  page 
356  of  the  same  book  I   find  in  his  address  to  the 
soldiery  this  recognition  of  theiV  efficiency  and 
patriotism  :     "  Soldiers  !     When  on  the  banks  of 

the  Mobile  I  called  on  you  to  take  up  arms  in- 
viting you  to  partake  of  the  perils  and  glory  of 
your  white  fellow  citizens,  I  expected  much  of 
vou,  for  I  was  not  ignorant  that  you  possessed 
qualities  most  formidable  to  an  invading  enemy. 
I  knew  with  what  fortitude  you  could  endure 
hunger  and  thirst  and  the  fatigues  of  a  cam- 
paign. 1  know  well  how  you  loved  your  na- 
tive country  and  that  you  had  as  well  as  our- 
«elves  to  defend  what  man  holds  most  dear,  his 
parents,  relations,  wife,  children  and  property. 
You  have  done  more  than  I  expected.  In  ad- 
dition to  the  previous  qualties  I  before  knew 
you  to  possess,!  found  moreover  a  noble  enthu- 
siasm which  leads  to  the  performance  of  noble 

•  deeds."     Such,  sir,  is  the  language  of  General 
Jackson  and  such  is  his  certificate  of  the  patriot- 
ism and  willingness  and  ability  of  these  "  sons  of 
freedom"  to  defend  the  dearest  rights  of  our  com- 
mon country.     And,  sir,  shall  it  be  said  that  our 
own   native  born  American  citizens,  who  fought 
and  bled  for" their  country's  freedom  shall  be  de- 
nied the  common  rights  of  freemen  ?     Tell  it  not 
from  this  hall,  publish  it  not  in  the  streets  of  our 
cities  lest  the  daughters  of  tyranny  rejoice  and 
the   enemies   of  republicanism    triumph.      Sir, 
there  is  another  consideration   to  which  I  desire 
to  call  the  attention  of  this  Convention.     While 
governments  continue  to  "  derive  their  just  pow- 
ers from  the  consent  of  the  governed,"  it  becomes 
the  duty  and  the  policy  of  the  government  to  enact 
such  laws  as  will  not  only  promote  the  prosperity 
and  happiness  of  its  subjects  but  to  adopt  such  prin- 
ciples as  shall  induce  all  who  live  under  its  influ- 
ence to  become  so   identified  with  it  that  they 
shall  not  and  cannot  be  induced  to  forsake  it  and 
attach  themselves  to  a  different  one  from  disaffec- 
tion and  hostility.     We  should,  if  we  would  en- 
sure the  perpetuity  of  our  institutions,  strive  to 
attach'  rather  than  alienate  our  people  from  the 


government  under  which  they  live.  But,  sir, 
has  this  been  the  course  of  policy  of  this  govern- 
ment towards  our  colored  population  ?  Does  our 
government  as  a  whole  grant  to  this  people  any 
inducements  whatever  to  risk  their  property  ? 
Do  we  offer  any  incentives  to  them  again  to  "  pe- 
ril their  lives  in  defence  of  our  country"  if  neces- 
sity should  exist  ?  No,  sir,  not  one.  On  the 
contrary  in  a  majority  of  the  states  in  this  Union, 
in  this  land  of  so-called  "  civil  and  religious  lib- 
erty," they  are  not  only  deprived  of  the  privilege 
of  participating  in  the  choice  of  their  officers,  but 
more  than  two  and  a-half  millions  of  these 
"  sons  of  freedom"  (as  Gen.  Jackson  denominated  • 
them)  are  robbed  of  every  right,  both  of  citizens 
and  freemen,  ground  down  by  the  "  iron  heel"  of 
oppression  and  bought  and  sold  "  like  cattle  in 
the  shambles."  Well,  indeed,  did  Thomas  Jef- 
ferson exclaim  "I  tremble  for  my  country  when  I 
remember  that  God  is  just."  I  would  pursue  this 
part  of  the  subject  further  if  time  permitted,  but 
must  pass  on ;  and  with  one  remark  in  reference 
to  '*  the  expediency"  of  this  proposition  I  will  re- 
turn from  this  digression.  It  is  said  that  it  is 
"  not  expedient"  to  give  the  "  people  of  color" 
the  right  of  suffrage  because  they  are  not  all  ca- 
pable of  exercising  it.  Sir,  my  only  wonder  is 
that  they  are  what  they  are  and  I  ask  the  op- 
posers  of  the  proposition  under  consideration 
whether  all  who  now  enjoy  the  elective  franchise 
are  capable  at  all  times  and  do  under  all  cir- 
cumstances exercise  that  right  as  freemen  should 
do? 

England  has  repudiated  and  wiped  out  the  in- 
stitution of  slavery.  We  retain  it  in  its  most 
odious  forms.  '  In  the  event  of  a  war  between  the 
two  most  powerful  nations  of  the  civilised  world, 
I  ask  if  it  would  be  unreasonable  to  expect  that 
this  class  of  our  citizens  might  be  induced  (from 
motives  of  self-defence,  which  is  the  first  law  of 
our  nature)  to  yield  to  the  temptation  of  the  em- 
isaries  of  a  foreign  power  as  they  hold  out  to 
them  the  palm  of  emancipation  ?  Sir,  that  "  gov- 
ernment derives  their  just  power  from  the  consent 
of  the  governed"  is  the  plain,  simple  but  positive 
language  of  our  Declaration  of  Independence.  But 
I  ask  where  and  how  did  these  people  give  their 
"  consent"?  Sir  it  is  all  a  mockery  for  you  to  boast 
of"  equal  rights  and  equal  privileges"  and  deny 
the  exercise  of  elective  franchise  to  them,  while 
you  extend  it  to  those  who  come  to  this  from  a 
foreign  country,  after  a  nominal  or  real  residence 
of  a  single  year,  and  in  many  cases  a  less  period. 
I  am  one  of  those  sir,  who  hold  the  truth  to  be 
self  evident  that  "  all  men  are  created  equal"  and 
would  reduce  to  practice  what  we  all  hold  most 
tenaciously  in  theory.  Now  if"  colored  persons" 
are  men  then  give  them  the  rights  and  privileges  of 
men,  if  they  are  not  men,  then  make  them  slaves, 
chatties  and  things,  and  let  us  have  no  more  of 
this  "  opposition  to  slavery'^  and  desire  "  to  be- 
nefit the  colored  man"  that  is  so  much  talked  in 
favor  of  and  voted  against. 

I  venture  the  assertion,  there  is  not  a  delegate 
on  this  floor,  and  scarcely  a  man  in  the  state,  who 
will  not  be  very  ready  to  say,  "  I  am  as  much  op- 
posed to  slavery  in  all  its  forms  as  any  body,  and 
wish  it.  was  not  in  existence,"  and  yet  when  a 
proposition  of  this  kind  is  placed  before  them, 
when  we  can  give  the  southern  states  a  practical 


1017 


and  occular  demonstration  of  our  opposition  to 
that"  peculiar  institution,"  instead  of  acting  anc 
deciding  like  men,  we  are  ready  to  yield  our  opi- 
nions to  southern  dictation,  and  be  as  submissive 
as  the  devotees  of  eastern  superstition,  who  bow 
their  heads  to  the  ponderous  wheels  of  Jugger- 
naut's car,  and  while  it  is  crushing  them  to  death 
sing  hallelujahs  to  the  god  of  their  idolatry. — 
It  is  sometimes  urged  as  an  argument  against  this 
proposition,  that  if  the  right  of  suffrage  is  extend- 
ed, all  the  black  population  will  flock  to  this 
state,  and  the  government  be  in  danger.  But,  sir 
a  moment's  observation  will  teach  us  that  the  sup- 
position is  founded  in  error.  In  several,  of  the 
states,  this  right  has  been  enj oyed  by  colored  peo- 

fle  to  the  same  extent  as  by  white  citizens,  anc 
need  only  refer  to  the  "  Old  Bay  State"  as  an 
example  of  the  workings  of  this  principle,  a  state 
whose  laws  are  as  good,  whose  government  as 
perfect,  and  whose  people  as  pure,  patriotic  and 
public  spirited,  as  thit  of  any  state  in  this  Union, 
I  apprehend  no  danger  in  allowing  all  to  vote. — 
No,  sir ;  there  is  not  a  case  that  can  be  instanced 
in  the  history  of  any  republic,  where  the  poor  ol 
that  government  endangered  its  prosperity.  It  is 
the  rich  and  affluent  that  sow  the  seeds  of  mis- 
chief and  most  endanger  the  country,  as  they  be 
come  corrupt  and  exercise  the  power  that  money 
too  often  commands. 

I  have,  Mr.  President,  given  some  of  the  rea- 
sons that  will  govern  my  vote  on  this  question. 
Entertained  honestly,  they  may  be  erroneously, 
I  know  they  are,  and  I  hope  and  trust  that  gen- 
tlemen who  differ  with  me  will  assign  some  good 
and  different  reason  for  entertaining  an  opposite 
opinion.  Our  votes  are  soon  to  be  put  on  record, 
and  will  stand  as  monuments  of  our  decision  on 
this  important  question  when  we  shall  have  been 
forgotten.  Yes,  sir,  we  shall  soon  be  on  an 
equality,  when  no  distinction  on  account  of  color 
can  exist,  but  when  the  rich  and  the  poor,  the 
bound  and  the  free,  shall  appear  at  the  same  tri- 
bunal, be  judged  by  the  same  righteous  laws, 
saved  by  the  same  great  sacrifice,  and  partici- 
pate in  the  same  heavenly  inheritance.  One 
word,  sir,  and  I  have  done.  It  is  said  this  is  an 
"  unpopular  side  of  the  question."  Well,  be  it 
so.  For  myself,  I  envy  not  the  man  who  will 
oppose  it  from  such  a  motive.  In  advocating  this 

E reposition,  I  am  governed  by  what  I  conceive  to 
e  the  truth  ;  and  I  stand  upon  the  firm  founda- 
tion of  justice,  and  if  I  fail  from  that  position,  I 
will  be  buried  in  the  broad  folds  of  the  banner  of 
freedom  and  "  equal  rights."  Yet,  sir,  I  have  a 
proud  consciousness  that  I  have  discharged  my 
duty,  and  have  contended  for  the  cause  of  truth, 
and  content  myself  that  although  it  may  be  un- 
successful for  a  time,  yet  I  know  that 

"  Truth  crushed  to  the  earth  will  rise  again— 

The  eternal  years  ol  God  arehei'sj 
But  error,  wounded,  writhes  in  pain, 

And  dies  amid  her  worshippers." 

Messrs.  BASCOM,  WATER  BURY  and  PEN- 
NIMAN  addressed  the  Convention  in  favor  of  hu- 
man rights  and  in  opposition  to  distinctions  based 
on  shades  of  complexion. 

Mr.  W  TAYLOR  understood  the  gentleman 
from  Seneca  (Mr.  BASCOM)  to  say  that  tie  was  in 
favor  of  submitting  to  the  people,  as  a  separate 
proposition,  the  question  of  extending  the  elective 

102 


franchise  to  the   colored  man,  and  that  he  would 
not  give    any  vote  which    should  go    to  deprive 
those  of  the  right  to  vote  who,  by  the   provisions 
of  the  present    constitution,  are   entitled   to  that 
privilege.     In  these  respects  he  fully  agreed  with 
that  genileman,  and  at  the  proper  time,  he  should 
propose  to  amend  the  section,    by  adding  the  pro- 
vision'of  the  present  constitution,  which  admitted 
colored  men  to    vote  on  a  property   qualification. 
In  doing  this  he  wished  it   to  be  distinctly  under- 
stood, that    he  repudiated   the  doctrine  that  pro- 
perty constituted,  in  any  sense,  a  just  criterion  of 
qualification  for  the  exercise  of  the  elective  fran- 
chise; but  he  was  unwilling  to  leave  the  section, 
as  reported  by  the  committee,  without  this  provi- 
sion, for  the  reason,  that  if  the  ninth  section  should 
be  submitted  to  the  people  as  a  separate  proposi- 
tion and  should  by  them  be   rejected,  then  all  the 
colored  population  now  entitled  to  vote  would  be 
disfranchised,  a  result  he  did  not  wish   to  see. — 
As  to  the    property    qualification  of    the  present 
constitution,  he    would  say,  that  he  presumed  the 
tramers  of    the  Constitution  did  not    regard    it  as 
constituting  a  just  criterion   of  qualification,   for 
the  doctrine  was  at  that  time  repudiated  as  to  all 
others      He    therefore  presumed   that    it  was  re- 
tained as  to  the  colored  man  for  the   reason,  that 
color  constituted  a  physical   characteristic  which 
distinguished  a  class  of  persons  who  for  many  rea- 
sons were  not  supposed  to  be  well  qualified  for  the 
exercise  6f  this  right,  and    that  the  Acquisition  of 
property  would  be  regarded  as  exhibiting  that  de- 
gree of  improvement,   and  those  habits  of    indus- 
try, prudence,  and  good  morals  that  indicate  a  bet. 
ter  state  of   qualification,  and    that  the    provision 
would  offer  an  inducement  to  them  to  adopt  those 
habits  by  which  they  might  acquire  the  requisite 
qualification.     It  was  fair    to  presume  that   some 
such  reasons  influenced  the   convention  in  making 
the  distiction  which    was  adopted  ;    but   whether 
the  reasons,  whatever   they  may  have  been,  were 
well    founded  or   not,  or  if    well  founded  at  the 
time,  whether  the   period  had  not  arrived  for  the 
removal  of  the  distinction,   were  vquesf ions  upon 
which  the  public  mind  was  divided;    and  he  was 
in  favor  of  submitting   the  question  to  the  people, 
that  they  might  have  an    opportunity  of  deciding 
it  themselves.     If  the  people  adopted  i',  all  would 
acquiesce;    if  they  rejected  it,   then  the   question 
would  be  settled  for  a  long  tiir.e  to  come,  and  agi- 
ation  upon  the  subject  would  cease.     He  thought 
t  would  be  best  for  all  concerned,   that  the  ques- 
ion  should  be  settled    in  the  manner  proposed.— 
Eie  could  not,  however,  vote  to  strike  out  the  word 
'white"  in  this  section,  for  if  that  motion  should 
revail,  then  we  incorporate  in  the  constitution  to 
je  submitted  to  the    people,  a  proposition  which 
would  jeopard  the  whole   instrument,  or  if  sub- 
mitted in  a  separate  article,  it  must  be  in  connec- 
ion  with  other  important  amendments,  all  which 
vould  be  in  danger  of  rejection  by  being  thus  com- 
>ined.  He  would  add  that  the  committee  to  which 
lad   been  submitted    the   subject  of  revising  the 
•onstitution  and  proposing  the  manner  of  submis- 
ion,  had  bestowed  some  consideration  upon  this 
question,  and  although  they  desired,  if  practicable, 
o  submit    the    constitution,   or  the   amendments 
idopted,  in  separate  articles,  yet  it  was  apprehen- 
.eu  mat    tins  would  be  attended  with   difficulty, 
rom  the  reason,  that  the  rejection  of  any  one  ar- 


1018 


ticle  might  disjoint  and  derange  the  whole ;  still 
as  no  action  had  yet  been  had  upon  it,  it  might  be 
found  practicable  thus  to  submit  it.  It  the  propo- 
sition relative  to  the  extension  of  the  elective 
franchise  to  the  colored  population,  be  submitted 
as  a  separate  proposition,  it  would  stand  upon  its 
own  merits  in  the  estimation  of  the  people,  and  its 
fate  would  not  involve  any  other  proposition.  He 
hoped,  therefore,  the  convention  would  adopt  the 
9th  section  as  reported  by  the  committee,  and  the 
amendment  he  had  su^tje^ed. 

Mr.  RUSSELL  said  the  Convention  had  listened 
to  much  declamation,  about  natural  rights  of 
man.  "All  men  are  by  nature  equal,  endowed 
with  certain  inalienable  rights,  among  which  are 
life,  liberty  and  the  pursuit  of  happiness,"  has 
been  the  text  of  all  the  preachers  to  the  Conven- 
tion, and  they  have  all  urged  the  very  erroneous 
conclusion,  that  this  Convention,  in  determining 
who  should  compose  the  electoral  body — the 
only  sovereign  power  and  real  governors  of  the 
state — are  bound  to  admit  negroes  and  Indians  to 
an  equal  participation  in  this  sovereign  power 
and  privilege. 

Mr.  R.  denied  that  any  such  conclusion  could 
wisely  be  drawn  from  the  text.  Gentlemen  have 
not  correctly  stated  the  question,  which  the  elec- 
tors, our  constituents,  have  sent  us  here  to  deter- 
mine. The  present  electors  demand  of  their 
servants  on  this  floor,  that  the  members  of  the 
governing  body  shall  be  safely  and  wisely  defined 
— not  according  to  visionary  philosophical  theo- 
ries concerning  the  best  natural  state  of  society, 
but  according  to  the  judgment  and  will  of  that 
governing  body,  whose  exponents  we  are,  or 
ought  to  be. 

The  true  question  is  this.  What  class  of  our 
entire  population  shall  exercise  the  actual  politi- 
cal power  for  the  whole  ?  By  whose  "votes" 
shall  government  be  conducted,  modified,  or 
abolished  ? 

This  is  a  a;veat  political  question,  and,  upon  a 
wise  practicable  solution,  depends  in  a  high  de- 
gree, the  permanency  of  republican  government. 
There  is  no  one  question,  upon  which  represen- 
tatives should  be  more  strictly  bound  by  the 
judgment  of  our  present  electoral  body,  regard- 
less of  all  theories,  which  individuals  may  deem 
possibly  practicable.  For  one,  Mr.  R.  should  be 
governed  by  this  strict  representative  responsi- 
bility, and  he  was  happy  that  his  individual 
judgment  coincided  fully  with  the  opinions  of  his 
own  immediate  constituents. 

Gentlemen  much  mistake  their  premises,  when 
they  contend  that  "life,  liberty,  right  of  proper- 
ty, and  free  pursuit  of  happiness,"  are  political 
privilege*.  These  are  mere  natural  social  rights, 
for  the  protection  of  which,  political  government 
is  instituted.  What  the  form  of  that  political 
government  should  be,  has  been  the  mooted 
point  for  ages.  By  nature,  all  have  the  same 
equal  social  rights,  and  for  the  common  protec- 
tion of  these  natural  rights,  all  must  yield  to 
some  subjection — to  some  restrictions — for  the 
necessary  maintenance  of  civil  government. — 
All  must  yield  something,  but  the  sacrifice  should 
be  equitably  apportioned  upon  all. 

In  this  country  the  republican  form  of  govern 
ment  is  wisely  adopted,  as  the  best  for  any  people 
who  have  the  capabilities  necessary  to  maintain  it. 


That  form  of  governing,  requires  that  the  sover- 
ign  power  should  be  lodged  in  a  portion — not, 
the  whole  number  of  individuals,  whose  social 
rights  are  protected  by  it.  All  must  be  subjects, 
but  a  part  only  can  be  governing  rulers.  The 
governing  class  act,  through  their  representatives, 
in  all  the  administration  of  civil  power.  The 
remainder  are  as  truly  subjects,  as  in  any  other 
form  of  government.  The  votes  of  the  govern- 
ing class  rule  all,  and  no  one  contends  that  all 
should  vote.  Females,  the  entire  half  of  society 
paying  a  large  portion  of  the  taxation  to  support 
society,  cannot  have  any  voice — nor  can  male 
persons  under  21  years,  although  they  arc  called 
upon  to  risk  life  and  liberty  for  common  defence 
f  all.  There  are  also  classes,  besides  negroes, 
lo  whom  equal  political  privileges  are  necessari- 
ly denied. 

The  white  foreigner,  of  our  own  race  and  kin- 
dred, who  comes  among  us  with  his  property,  to 
live  and  die  in  our  land — pays  taxes  for  common 
protection  ;  and  risks  all  upon  the  stability  of  our 
institutions,  cannot  vote  until  after  five  years 
residence,  and  not  then,  unless  he  will  take  an 
oath  to  support  our  form  of  government,  and  to 
objure  all  allegiance  to  every  other.  What  natu- 
ral justice  is  there,  in  compelling  any  man  to 
swear  to  support  any  particular  form  of  govern- 
ment, before  he  can  ballftie  a  member  of  the  elec- 
toral body,  when  that  body  has  full  power  to 
change  that  government  ?  Simply,  because  the 
white  race,  who  have  here  subdued  nature's  sav- 
age wilderness  to  the  use  of  civilized  man,  and  to 
his  civil  power,  have  for  self  preservation,  the 
right  to  declare  and  fix  the  governing  body,  and 
to  admit  new  members  of  it,  on  such  conditions 
only,  as  they  may  deem  safe  and  wise,  for  the 
good  of  all.  For  this  governing  body,  they  have 
ordained  as  governors,  a  certain  class,  which  ex- 
cludes at  least  four-fifths  of  all  individuals  gov- 
erned by  it.  The  persons  actually  voting,  at  any 
election  in  this  state,  have  never  exceeded 
one  sixth  of  the  entire  population. 

With  this  governing  class,  as  a  close  corpora- 
tion, is  deposited  the  sole  pow.  r  of  extending,  or 
limiting  its  numbers.  No  one  on  this  floor  pro- 
poses to  extend  its  numbers,  except  in  a  single 
direction — and  that,  in  favor  of  a  class,  who,  for 
401)0  years  have  never  yet  been  found  capable  of 
sustaining  our  political  institutions,  under  any 
circumstances,  or  in  any  country.  The  gentle- 
man fr<>m  Madison  tells  us,  and  probably  truly, 
that  in  the  progress  of  slave  emancipation,  we 
shall  soon  have  large  annual  accessions  of  this 
class  of  people,  to  the  population  of  our  state, 
and  contends  that  we  should  yield  them  equal 
political  privileges,  as  well  as  social  rights,  with 
the  one-fifth  of  our  population  now  governing 
us  all. 

New-Jersey,  Pennsylvania,  and  Ohio,  the  only 
states  between  us  and  the  slave  population  of  the 
South,  will  not  yield  these  privileges,  because  it 
would  invite  among  them  a  dangerous  proportion 
of  another  race  of  men.  But  we  are  told,  that 
New  York  should  extend  such  invitation,  by  an 
offer  of  equal  participation  in  the  government  of 
five-sixths  of  our  own  citizens,  who  cannot  ex- 
ercise the  same  privilege,  and  some  gentlemen 
are  pleased  to  take  into  their  own  hands,  the 
thunderbolts  of  Almighty  Power,  and  to  wield  its 


1019 


<-ance  upon  all  who  doubt  the  justice,  or  pro- 
priety, i't'  extending  the  numbers  of  the  electo- 
ral body,  by  an  i illusion  of  this  new  class  with 
it.  Mr.  II."  doubted,  whether  gentlemen  had  been 
legitimately  ordained  as  ministers  of  Divine  ret- 
ribution. Many  suspected  that  their  motives,  as 
well  as  their  mission  in  this  cause,  were  of  the 
earth,  earthly— and  not  of  any  Divine  source, 
express  or  implied. 

If  we  invite  ail  the  blacks,  who  are  to  come 
from  the  south,  by  giving  them  this  political  pow- 
er, which  they  cannot  have  till  they  reach  this 
state,  the  next  ten  years  will  bring  thousands  of 
them  among  us,  if  they  have  in  fact  the  ambition 
of  ruling  with  our  race,  which  has  been  ascribed 
to  them  by  their  special  friends  on  this  floor. 

Is  such  an  accession  to  our  population  desi- 
rable ?  In  the  name  of  the  people  of  St.  Law- 
rence county,  I  answer,  no  !  "  Our  own  free 
race"  have  there  cleared  the  face  of.  mother  earth 
of  its  primeval  forests,  and  have  rendered  it  hab- 
itable for  civilized  man.  They  have  there  found- 
ed social  institutions  adapted  to  their  wants,  and 
have  contributed  their  part  in  giving  wise  direc- 
tion to  civil  government.  They  want  no  co-part- 
ners to  share  with  their  electors,  the  civil  power 
of  governing,  who  come  fresh  from  an  inferior 
race  of  men,  for  ages  debased  \>y  the  chains  of 
servitude.  St.  Lawrence  county  has  no  blacks, 
and  never  had  a  slave.  Her  citizens  abhor  slave- 
ry, and  are  in  no  wise  responsible  for  its  existence 
elsewhere.  But  they  consider  it  a  mock  philan- 
thropy, which  requires  them  to  share  their 
own  dear-bought  political  privileges  with  any 
class  of  intju,  who  are  not  intellectually  andmor- 
rally  competent  to  appreciate  our  intitutions,  and 
faithfully  sustain  them.  They  believe  the  ne- 
gro race  are  not  so  competent — that  centuries 
must  elapse  before  that  race  of  men  can  success- 
fully maintain  free  institutions.  Gentlemen  may 
denounce  such  opinions,  as  prejudice — as  resist- 
ance to  the  moral  law  of  the  Almighty,  but  they 
do  not  reflect  that  the  same  Creator  of  both  races 
has  himself  ordained  the  mental  and  moral  dif- 
ferences which  characterize  b  >th. 

The  proposition,  that  the  intellectual  power  of 
the  white  race  is  vastly  superior  to  that  of  the 
Mack,  is  a  "fixed  fact" — not  the  mere  conclusion 
of  piejudice. 

There  is  now  no  existing  constitutional  law, 
which  deprives  the  negro  of  any  social  right, 
more  than  the  alien  foreigner  residing  with  us. — 
If  the  negro  does  not  stand  as  high  in  relations 
of  social  intercourse,  it  is  not  the  fault  of  our 
constitution  or  laws,  but  the  result  of  free  action, 
of  all  the  members  of  society,  unrestrainred  by 
any  written  law.  Some  of  the  whites  do  practi- 
cally carry  out  equality,  by  mixing  with  the 
blacks  in  all  the  reiuti  ns  of  life,  marriage  not 
excepted.  Yet  such  is  not  the  taste  of  a  vast  ma- 
jority, and  probab  y  never  will  be. 

Suppose  the  thousands  of  emancipated  blacks 
of  the  south,  are,  by  an  offer  of  all  the  privilege* 
of  citizenship,  invited  to  settle  in  this  state, 
must  they  not  labor  for  their  support  ?  Will  not 
their  labor  be  brought  in  direct  competition  with 
that  of  our  white  laboring  classes  ?  It  must  of 
necessity,  and  one  of  two  things  must  result. — 
Either,  this  competition  must  reduce  the  price  of 
abor,  or  our  white  laborers  must  make  room  for 


our  new  black  citizens,  by  emigrating  to  other 
states.  In  either  view,  this  would  be  a  political 
evil,  and  would  work  great  injustice  to  the  white 
laboring  class— at  least  to  nine-tenths  of  all  our 
present  voters.  The  few  who  live  upon  the  pro- 
fits of  their  capital,  might  not  be  seriously  affect- 
ed, except  by  the  gradual  degeneracy  of  the  elec- 
toral body,  and  consequent  insecurity  of  pro- 
perty. 

Mr.  R.  hoped,  there  was  no  class  of  men,  in 
this  body,  or  in  the  state,  who  advocated  negro 
suffrage,  for  the  intended  object  of  degrading  our 
white  laboring  classes  to  the  same  servile  condi- 
tion of  that  class  in  other  countries. 

Past  experience  shows  that  mixed  races,  where 
black  and  white  commingle  without  prejudice,in- 
variably  deteriorate.  Who  believes  that  the 
bronze  mixture,  now  existing  in  the  Mexican 
and  South  American  republics,  is  in  any  way 
competent  to  sustain  pure  republican  govern- 
ment ?  Whilst  the  intellect,  and  determined  en- 
ergy of  the  old  Castillian  race,  is  theie  lost  or 
but  weakly  developed,  by  its  mixture  with  the 
blacks,  the  savage  himself  has  also  l>st  his  own 
native  excellence  in  the  union.  If  Providence 
had  intended  such  unions  for  good,  the  results 
now  exhibited  would  have  been  far  different. 

The  present  voting  electors  of  tins  si  alt-,  in  Mr. 
R.'s  opinion,  were  opposed  to  admitting  (he  black 
race  to  an  equality  of  political  privileges.  If  all 
blacks,  who  come  among  us,  be  permitted  fo  vote, 
the  right  of  eligibility  to  office  could  not  be  denied 
to  them.  They  must  freely  compete  for  labor 
with  all  white  citizens,  who  support  their  (ami- 
lies  by  the  work  of  their  own  hands.  They  must 
have  the  right  to  sii  in  our  jury  boxes,  and  in  our 
courts  as  judges.  The  great  body  of  our  white 
voters  feel  that  self-preservation  itself,  forbids 
such  an  extension  of  the  governing  power  of 
this  state.  And  call  it  what  you  please,  they  are 
righi, 

There  are  men, of  soundest  injellect,  who  have, 
even  now,  strong  doubts,  whether  our  own  wbite 
race  will  be  able  to  hand  down  to  remote  posteri- 
ty, the  blessings  of  republican  government,  un- 
contaminated  by  the  growing  corruptions  ever  at- 
tending grea-  national  wealth,  and  high  civiliza- 
tjon.  It  certainly  would  be  dangerous  to  deterior- 
ate our  own  race,  in  view  of  these  elements  of 
decay. 

Mr.  R.  fell  that  the  members  of  this  Convention 
should,  upon  this  question,  .simply  reflect  the  po. 
pular  will.  All  are  sent  to  thi-s  floor  by  the  exist- 
ing body  of  voters.  The  composition  of  that  body 
should  not  be  changed  without  its  own  lu<l  assent. 

It  the  majoritv  of  the  Convention  doubted 
whether  the  present  electors  ot  the"  state  desired 
to  extend  their  franchise  to  the  negro  race,  with- 
oufjestrictiori,  Mr  R.  would  not  object  to  have 
that  question  tested  by  a  distinct,  separate  sub- 
mission of  the  proposition  ;  but  he  could  go  no 
further,  to  carry  out  the  theories  of  any  man,  how- 
ever philanthropic  he  may  be. 

Mr.  STRONU  continued  the  debate  in  favor  of 
the  motion  to  amend. 

Mr.  KIRKLAND  offered  a  proposition  which  he 
believed  would  enable  the  Convention  to  decide 
upron  this  question  with  a  great  deal  of  unanimity. 
There  were  few  gentlemen,  he  believed,  who  de- 
sired to  deprive  the  colored  population  of  their 


1020 


natural  rights,  while  there  were  many  who  doubt- 
ed the  propriety  of  ar  once  admitting  them  to 
share  with  white  citizens  the  benefits  or  the  elec- 
tive franchise.  His  proposition  was  to  save  to 
the  colored  people  the  same  privileges  which  they 
now  possess,  and  also  to  submit  to  the  people  the 
question  of  allowing  them  to  enjoy  the  elective 
franchise.  He  said  he  would  present  them  in 
form  in  due  season. 

The  Convention  here  took  a  recess. 

AFTERNOON  SESSION. 

Mr.  JONES'  resolution  was  taken  up,  providing 
that  after  Saturday  next,  the  Convention  will  not 
take  up  or  consider  any  article  not  then  acted  up- 
on, &c.  (a«f  above). 

Mr.  F.  F.  BACKUS  proposed  to  strike  out  Sat- 
urday, and  insert  Friday. 

Mr.  JONES,  though  in  favor  of  commencing 
the  work  of  revision  at  the  earliest  day,  preferred 
to  leave  the  question  on  the  amendment  to  the 
decision  of  the  question. 

Mr.  BASCOM  thought  we  had  better  not  tie 
ourselves  up  to  this — as  delegates  might  leave  for 
home  on  Saturday,  in  the  expectation  that  noth- 
ing new  was  coming  up;  and  yet  something  might 
occur  making  that  necessary. 

Mr.  LOOiMIS  moved  a  substitute,  as  follows: 

Resolved,  That  this  Convention  will,  on  Friday  morn- 
ing  next,  at  nin^  o'clock,  proceed  to  the  consideration  and 
revision  of  the  articles  ot  the  <  onstitution  which  have 
been  acted  upon,  and  also  so  much  of  the  existing  consti- 
tution as  shall  not  have  been  considered  beiore  then. 

Mr  TALLMADGE  opposed  the  resolution — 
saying  that  whenever  the  committee  on  the  en- 
grossment of  the  articles  should  make  their  re- 
port, we  could  then  take  up  the  articles  for  revi- 
sion, and  keep  the  matter  within  our  control. 

Mr.  STRONG  said  we  should  not  have  to  wait 
for  that  committee  to  report.  They  would  be 
ready  as  soon  as  we  should.  Again,  if  we  were 
to  prolong  the  session  a  month,  we  should  be  just 
where  we  were  now,  with  articles  before  us  that 
we  could  not  act  upon,  except  in  a  hurry,  and  we 
had  better  not  touch  them  unless  we  could  have 
time  for  it.  We  could  not  pass  on  all  these  re- 
ports, and  do  our  work  well ;  and  hence  we  had 
better  leave  the  old  constitution  to  stand  in  such 
cases,  than  to  kick  over  what  we  had  done  well, 
by  something  badly  done. 

Mr.  A.  W.  YOUNG  was  opposed  to  any  reso- 
lution which  would  preclude  taking  up  any  of 
these  reports  that  were  behind — saying  that  it 
might  compel  us  to  adjourn,  leaving  our  work 
half  done. 

Mr.  JONES  said  his  object  was  to  secure  time 
enough  for  a  revision  of  what  had  been  done,  that 
it  might  be  well  done.  He  did  not  believe  we 
should  sit  beyond  Tuesday ;  and  that  would  leave 
the  people  little  time  enough  to  consider  the  ar- 
ticles we  should  submit.  The  Convention  of 
1821  gave  the  people  some  seventy  days  to  over- 
look their  work.  We  should  give  them  but 
twenty-seven,  if  we  adjourned  on  Tuesday.  He 
had  thought  that  we  might  revise  our  work  on 
Monday  and  Tuesday  ;  but  the  gentleman  from 
Herkimer  thought  otherwise.  He  was  inclined 
to  think  we  Bright  want  more  time,  and  perhaps 
it  would  be  well  tu  begin  the  work  on  Saturtiay. 
But  he  disliked  so  much  of  that  gentleman's  pro- 


position as  contemplated  taking  up  other  and  new 
articles,  after  we  had  gone  on  with  the  revision. 

Mr.  VAN  SCHOONHOVEN  opposed  the  reso- 
lution, and  ran  over  several  articles  which  were 
yet  behind,  and  which  it  was  all  important  to  act 
upon — among  them  the  article  concerning  estates 
in  land. 

Mr.  RUSSELL  had  no  doubt  a  resolution  would 
pass  unanimously  to  instruct  the  engrossing  com- 
mittee to  bring  in  that  article  precisely  as  it  stood. 

Mr.  VAN  SCHOONHOVEN  said  he  had  no 
assurance  of  that.  He  went  on  to  urge  that  if  we 
proceeded  to  dispose  of  these  articles  as  they 
came  up,  we  could  dispose  of  them  by  Tuesday, 
and  if  the  session  was  extended  until  Wednesday 
evening,  that  would  be  better  than  to  break  off 
abruptly,  and  leave  these  important  subjects  un- 
touched. 

Mr.  WORDEN  remarked  that  as  we  had  so 
little  time,  we  had  better  do  something.  He  sug- 
gested Saturday  as  the  day  when  we  should  pro- 
ceed to  the  revision. 

Mr.  SWACKHAMER  moved  to  lay  the  whole 
subject  on  the  table — which  was  done. 

CORPORATIONS. 

The  Convention  took  up  the  report  of  Mr. 
TILDEN,  in  relation  to  corporations,  other  than 
municipal,  &c. 

The  first  section  wag  then  read    (Given  above.) 

Mr.  TILDEN  briefly  explained  the  section  and 
urged  its  adoption  as  a  compromise,  although  it 
did  not  entirely  meet  his  views. 

The- section  was  adopted  nem.  con. 

The  second  section  was  then  read. 

Mr.  TILDEN  said  that  on  this  section,*  the 
committee  did  not  agree.  The  minority  (himself 
and  Mr.  LOOMIS)  had  proposed  a  substitute 
(given  above)  for  it.  Mr.  T.  explained  that  this 
was  in  effect  the  same  proposition,  adopted  in  the 
banking  report,  on  this  subject. 

Mr.  O'COISOR  replied  in  opposition  to  the  mo- 
tion of  Mr.  TILDEN.  Mr.  O'C.  referred  to  the 
intense  difficulties  which  attended  an  attempt  to 
lay  down  a  fixed  rule  on  this  subject  from  rhe  va- 
riety of  subjects  involved,  and  the  diversity  of  the 
character  ot  the  corporations.  He  thought  the 
section  brought  forward  by  the  committee  recom- 
mended the  latter  course  to  be  pursued.  There 
were  corporations  for  instance,  which  required  un- 
limited  liability,  while  there  would  be  others  to 
whom  it  would  be  unjust  if  attached  to  them. — 
He  would  allow,  therefore,  the  legislature  to  look 
at  the  various  classes  of  corporations  in  imposing 
this  liability. 

Mr.  SIJVliVlONS  enquired  if  the  gentleman  sup- 
posed this  liability  could  attach  to  the  corporations 
already  existing; 

Mr.  O'CONOR  said  that  it  would  operate  on 
no  corporation  heretofore  or  hereafter  created. — 
It  applied  only  to  the  legislature. 

Mr.  SIMMONS  referred  to  the  section  of  Mr. 
TIL.DEN. 

Mr.  O'CONOR  had  nothing  to  do  with  that— 
Mr.  O'C.  further  explained  his  section. 

The  debate  was  continued  by  Messrs.  MORRIS, 
LOOM1S,  SIMMONS,  AYRAULT,  MARVIN 
and  TOWNSEND..  when 

Mr.  MANN  moved  the  previous  question,  and 
there  was  a  second. 


1021 


The  amendment  of  Mr.  AYRAULT  was  agreed 
to — ayes  58,  noes  27. 

The  substitute  for  the  second  section  was  re- 
jected, as  follows : 

AYKS— Messrs.  Bowdish,  Brundage,  Burr,  R..  Campbell, 
jr.,  Chamberlain,  Clyde,  Coftely,  Cornell,  Cuddeback,  Da- 
na, Danl'orth,  Greene,  Hart,  Hoffman,  Hotchkiss,  Hunt,  A. 
Huntington,  Jones,  Kornun,  Kingsley,  Loomis,  Mann,  Me 
Neil,  McNiU,  Miixwell,  Morris,  Nellis,  Powers,  President, 
St.  John.  Sanford,  Sheldon,  Stephens,  Swackhamer,  Tai't, 
W.  Taylor,  Tilden,  Townsend,  Tuthill,  Waterbury,  Yaw- 
ger.  Youngs — 4-2 

NAYS— Messrs  Angel,  Archer,  Ayrault,  F.  F.  Backus, 
H.  Backus,  Baker,  Bascom,  Bergen  Bray  ton,  Bruce,  Bull, 
Candee.  Cook,  Dodd,  Dorlon,  Dubois.Graham.  Harris,  Har- 
rison, Hawley,  Jordan,  Kcnible,  Kirkland,  Marvin,  Miller, 
Nicholas,  Ni'coll,  (('Conor,  Parish,  Patterson,  Penniman, 
Perkins,  Rhoades,  Shaver,  Simmons  E.  Spencer,  W  H. 
Spencer.  Stanton,  Stow,  Strong,  Tallmadge,  J.J.Taylor, 
Van  Schoonhoven,  Ward,  Warren,  Willard,  Wood,  Wor- 
den,  A.  Wright,  W.  B.  Wright,  Young— 51. 

The  section  as  reported  was  then  adopted,  ayes 
70,  noes  25. 

Mr.  VAN  SCHOONHOVEN  moved  the  follow- 
ing as  the  third  section  : — 

(j  3.  All  special  laws  passed  by  virtue  of  the  provisions 
of  the  first  section  of  this  article,  and  granting  a  power  to 
take  private  property  lor  public  use,  without  the  consent 
of  the  owner  thereof,  or  gra;  ting  a  franchise  or  right  ot 
•way  over  the  public  highways  or  public  streams  of  this 
state,  shall  be  passed  by  a  vote  of  at  least  two-thirds  of  the 
members  elected  to  each  branch  of  the  legislature. 

Mr.  SIMMONS  said  that  it  would  never  do  to 
pass  this  in  that  way.  There  might  be  other  rea- 
sons that  would  arise  to  render  it  necessary  to 
take  property,  besides  taking  it  for  a  ditch  or  a 
railroad.  In  time  of  war,  for  instance,  and  in 
other  cases.  There  had  never  been  so  restrictive 
a  provision  as  this  in  the  constitution,  and  he 
trusted  that  it  wo.'.ld  not  be  adopted  now. 

Mr.  RICHMOND  moved  an  amendment  but 
finally  withdrew  it. 

Mr.  VAN  SCHOONHOVEN  thought  there 
would  be  no  difficulty  in  getting  a  two-third  vote 
in  cases  where  there  was  an  evident  public  neces- 
sity for  any  measure 

Cries  of  "question — question." 

Mr  PATTERSON  rose  to  speak,  but  said  there 
was  so  much  confusion  in  the  House  that  it  was 
best  to  take  the  vote  on  Mr.  S.'s  section. 

Mr.  MORRIS  moved  to  amend  by  inserting,  "a 
majority  of  all  elected  instead  of  two-thirds."  He 
was  convinced  that  the  two-third  vote  enabled 
crafty  men  to  force  through  more  improper  laws 
than  any  other  system. 

Mr.  DANA  could  not  see  how  86  men  could  be 
more  easily  corrupted  than  65. 

Mr.  SIMMONS  said,  very  easily. 

Mr.  CLYDE  moved  the  previous  question.  It 
was  seconded. 

Mr.  MORRIS'S  amendment  was  agreed  to: — 
Ayes  54,  noes  27, — 81. 

The  section  as  amended  was  then  passed.  Ayes 
49,  no. 

The  3d  (now  the  4th)  section  was  then  read. 

^3  The  term  corporations  as  used  in  this  article  shall 
be  construed  to  include  all  associations  and  joint-stock 
compHnies  hereafter  formed  having  any  of  the  powers  or 
privileges :  of  corporations  not  possesse  I  by  individuals  or 
partnecfchipt.  And  all  corporations  shall  have  the  right 
to  »ue  and  shfill  be  subject  to  be  sued  in  all  courts  in  like 
cases  as  natural  persons 

Mr.  KIRKLAND  moved  to  amend  by  insert- 
ing in  the  5th  line,  after  the  word  *'  corporations" 
the  words  "  now  existing  or  hereafter  to  be  crea- 


ted." He  did  this  at  the  request  of  several  gen- 
tlemen who  had  doubts  as  to  the  effect  of  the  pre- 
sent language  of  the  section. 

This  was  objected  to  as  unnecessary  The  term 
"  all  corporations"  covered  the  whole  ground. 

Mr.  SIMMONS  hoped  it  would  not  pass ;  the 
section  now  says  that  it  includes  all  corporations, 
and  it's  no  use  to  encumber  it  with  unnecessary 
verbiage. 

Mr.  TILDEN  said  there  was  a  misprint  in  the 
section.  The  word  "  hereafter  "  ought  not  to  be 
inserted. 

Mr.  PATTERSON  objected  to  this  section,  be- 
cause it  took  away  the  right  heretofore  enjoyed 
of  sueing  a  corporation  or  bank  in  any  part  of  the 
state.  As  for  instance,  if  the  Chautauque  co. 
Bank  failed  to  provide  for  the  redemption  of  their 
notes  in  this,  the  company  might  be  sued  in  the 
couniy  court  here. 

With  this  opinion,  there  was  some  question 
raised,  upon  the  legal  point,  by  several  gentle- 
men. 

The  amendment  of  Mr.  KIRKLAND  was  nega- 
tived 

Mr.  PATTERSON  objected  to  the  latter  clause, 
saying  that  if  gentlemen  supposed  it  placed  indi- 
viduals and  corporations  on  the  same  footing, 
they  were  mistaken.  It,  in  fact,  took  away  the 
right  heretofore  enjoyed  of  sueing  a  corporation 
or  bank  in  any  part  of  the  state. 

This  position  was  questioned  by  Mr.  KIRK- 
LAND and  others. 

The  amendment  of  Mr.  KIRKLAND  was  nega- 
tived. 

Mr.  WORDEN  opposed  the  adoption  of  the 
section  as  unnecessary.  It  amounted  to  this,  that 
a  corporation  was  a  corporation.  He  moved  to 
strike  out  the  section. 

Mr.  STRONG  said  if  they  could  make  the  wa- 
ter of  Patroon's  creek  run  up  hill  to  Rochester, 
he  would  move  to  give  corporations  extraordina- 
ry powers. 

Mr.  KIRKLAND'S  amendment  was  lost.  Ayes 
20,  noes  not  counted. 

Mr.  WORDEN:  There  could  not  be  a  corpora- 
tion enjoying  powers  thaf  could  not  be  enjoyed  by 
individuals.  He  opposed  the  adoption  ot  the  sec- 
tion as  unnecessary  in  the  constitution.  Never, 
before  the  arguing  ot  the  General  Banking  Law 
question,  was  there  an  idea  entertained  that  a  cor- 
poration  could  be  created  with  powers  which 
could  riot  be  enjoyed  by  individuals.  He  moved 
to  strike  out  the  section. 

Mr.  RICHMOND:  On  the  abuses  of  these  com 
panies — barfiig  fences.  He  hoped  the  motion 
would  not  prevail.  He  knew  of  many  instances 
in  which  the  agents  of  railroad  companies  had 
set  fire  to  fences  and  woodlands  by  their  careless, 
ness,  and  the  owners  of  the  property  failed  of  ob- 
taining redress.  There  should  be  a  provision  by 
which  these  corporations  might  be  sued  lor  dama- 
ges. 

Mr.  WORDEN  said  he  had  known  instances  in 
which  some  miserable  fellow  had  a  just  claim 
against  a. corporation  for  sixpence,  who  extolled 
filly  dollars,  upon  tin-  threat  of  suing  in  a  Court 
of  Recotd,  and  then  throwing  lhat  or  a  giealer 
amount  of  costs  upon  them.  He  was  not  opposed 
to  a  provision  in  a  law  by  which  these  corpora- 
tions should  be  made  sueable  in  all  cases  like  in- 


1022 


dividuals,  but  he  did  not  regard  it  as  necessary  to 
the  conshtu'ion. 

Mr.  BASCOM  said  there  was  a  difficulty  about 
this  section. 

Messrs.  TILDEN,  O'CONOR,  STOW  and 
WATERBTJRY  continued  the  desultory  conver- 
sation. 

Mr.  \SWACKHAMER  moved  the  previous 
question. 

It  was  seconded. 

Mr.  WORDEN  withdrew  his  motion  to  strike 
out. 

The  ayes  nays  were  ordered  on  the  first  part 
of  the  4th  section  down  to  "partnerships,"  and 
resulted,  ayes  56,  noes  10. 

The  question  was  now  taken  on  the.  last  para- 
graph, and  it  was  carried.  Ayes  57,  noes  9. 

The  entire  section  was  then  agreed  to,  in  form. 

Mr.  JONES  *hen  gave  notice  of  a  motion  to  re- 
consider the  2d  section. 

Mr.  SWACKHAMERgave  notice  to  reconsider 
the  vote,  with  the  section  he  offered  this  morn- 
ing relative  to  attorney's  fees,  and  it  was  ordered 
to  be  printed. 

Mr.  FORSYTH  offered  the  following  as  an  ad- 
ditional section : 

The  legislature  may  grant  to  corporations  the  right  to 
take  private  property  for  purposes  beneficial  to  the  pub- 
lic, upon  making  just  compensation  therefor.  But  such 
compensation  shall  not  be  reduced  by  any  allowance  for 
prospective  benefits. 

Lost,  without  a  division. 

Mr.  WARD  moved  that  the  report  be  laid  aside 
and  printed.     Agreed  to. 
The  Convention  then  adjourned. 

THURSDAY,  (103d  day,)  Oct.  1. 

No  clergyman  present. 

EQUALIZATION  OF  TAXATION. 

Mr.  TOWNSEND  from  the  select  committee 
on  the  subject  of  the  equalization  of  state  taxa- 
tion, reported  the  following  section  : — 

^  1.  The  legislature  shall  at  its  next  session  after  the 
adoption  of  tins  constitution,  provide  by  law  lor  t>quali- 
zing  the  valua'iun  of  property  for  the  purpose  of  taxation 
as  made  by  the  assessors  and  supervisors  in  the  respective 
counties  of  ihis  state:  so  that  each  county  shall  con- 
triuute  its  proportionate  share  to  the  support  of  govern- 
ment. 

Laid  on  the  table,  and  ordered  to  be  printed. 
VACANCIES  IN  OFFICE. 

Mr.  ANGEL  from  the  7th  standing  committee, 
to  whom  was  referred  the  section  yesterday  offer- 
ed by  Mr.  WORDEN,  reported  the  following  : — 

§  — .  The  legislature  shall  provide  by  law  for  filling  va- 
cancies in  office,  and  in  case  of  elective  officers,  no  per- 
sons appointed  to  fill  a  vacancy  shall  hold  his  office  by 
vinue  of  such  appoimment  longer  than  until  the  com- 
mencement ot  the  political  year  next  succeeding  the  first 
annual  election  after  th^  happening  of  the  vacancy. 

Referred  to  the  committee  of  revision. 

EDUCATION  AND  COMMON  SCHOOLS. 
Mr.  BOWDISH  offered  the  following  :— 
Resolved,  That  the  Convention  will  proceed  to  the  con- 

sideiation  of  the  icport  of  committee  No.  12,  on  education, 

to-moriow  morning  at  ten  o'clock. 

Mr.  BOWDISH  said  he  was  well  aware  of  the 
impatience  of  the  Convention — but  as  he  had  not. 
before  trespassed  upon  their  time,  he  had  a  claim 
to  their  indulgence  while  he  offered  some  of  the 
reasons  that  had  influenced  him  in  presenting 


this  resolution.  He  however,  deemed  it  due  to 
himself  to  say  that  he  was  unaccustomed  to  pub- 
lic speaking.  For  the  first  time  in  his  life  he 
now  attempted  to  address  a  public  body — nor 
when  he  came  here,  did  he  intend  to  take  any 
part  in  the  debates — but  had  determined  rather, 
to  profit  by  the  wisdom  of  others,  than  to  under- 
take to  enlighten  them  with  any  views  of  his 
own.  He  should  not  now  depart  from  that  de- 
termination, but  from  the  conviction  that  he 
owed  a  duty  to  mankind,  to  posterity  and  his 
country.  He  availed  himself  therefore,  of  this 
opportunity  to  urge  the  establishment,  by  consti- 
tutional provision,  of  some  principle  which 
should  be  the  basis  of  a  system  of  free  schools, 
similar  to  that  proposed  by  the  committee  on  ed- 
ucation, which  he  proposed  to  make  a  special 
order.  He  trusted  he  need  not  impress  upon  the 
Convention  the  importance  of  the  subject  mat- 
ter of  his  resolution — relating  as  it  did,  to  the 
fundamental  principle  upon  which  yested  our 
only  hope  for  the  perpetuity  of  free  irtlfttutions 
— to  our  system  of  popular  education — the  sys- 
tem which  was  to  mould  our  laws  through  the 
influence  it  would  exert  upon  the  morals,  habits 
and  intelligence  of  the  masses. 

The  formation  of  those  opinions  which  create 
our  laws,  is  dependent  on  a  judicious  education  ; 
and  as  those  laws  form  the  morals  and  habits  of 
the  people,  is  it  not  proper  that  all  questions 
touching  so  important  a  matter  should  be  pub- 
licly discussed,  maturely  deliberated  on,  and 
only  settled  when  the  public  mind  has  fully  sat- 
isfied itself  of  the  intrinsic  merits  of  the  system 
that  may  be  proposed  ?  I  utterly  repudiate,  as 
unworthy  of  an  American  freeman,  the  idea  that 
we  should  not  open  wide  the  field  for  the  encour- 
agement of  science  and  literature,  by  establish- 
ing such  a  system  of  schools  as  will  afford  an  op- 
portunity for  all  classes  to  become  educated,  em- 
bracing the  high  and  low,  the  rich  and  poor.  It 
is  true  sir,  our  present  system  has  done  much 
towards  the  consummation  of  this  noble  object, 
yet  the  system  is  very  imperfect,  and  in  my  judg- 
ment, will  never  be  complete  until  this  most  de- 
sirable end  is  attained.  I  hold  that  the  welfare 
of  a  free  government  depends  upon  the  virtue 
and  intelligence  of  its  subjects,  the  character 
and  habits  of  its  members.  If  this  be  true,  we 
should  make  no  distinctions,  but  the  banner  of 
education  should  be  proudly  unfurled, 

«'  Like  the  wild  winds  free," — 

allowing  all  alike  to  enjoy  its  advantages.  The 
child  of  the  woodland  cottage,  and  that  of  the 
princely  mansion,  should,  if  possible,  be  educat- 
ed together,  that  all  might  have  an  equal  oppor- 
tunity of  rising  to  eminence  and  fame.  It  is  a 
cardinal  principle  of  republicanism  that  there  is 
no  royal  road  to  distinction  :  it  is  held  to  be  ac- 
cessible to  all.  None  are  born  to  command  or  to 
obey.  In  the  order  of  nature,  God  has  made  no 
distinctions,  he  has  not  provided  for  the  poor  a 
coarser  earth,  a  thinner  air,  or  a  paler  sky.  The 
same  glorious  sun  pours  down  its  golden  flood  as 
cheerily  upon  the  poor  man's  home  as  upon  the 
rich  man's  palace.  The  cottager's  children  have 
as  keen  a  sense  of  all  the  freshness,  verdure,  fra- 
grance, melody  and  beauty  of  luxuriant  nature, 
as  the  pale  sons  of  the  wealthy.  Neither  has  he 


1023 


stamped  the  imprint  of  a  baser  birth  upon  the 
man's  child,  than  that  of  the  rich,  by  which 
it  knows  with  a  certainty  that  its  lot  is  to  crawl, 
not  climb.  Mind  is  immortal.  It  is  imperial. — 
It  bears  no  mark  of  high  or  low,  of  rich  or  poor; 
it  heeds  no  bounds  of  time  or  place,  of  rank  or 
circumstances.  It  requires  but  light.  It  only 
needs  that  liberty  to  glide  along  in  its  undisturb- 
ed course,  that  the  rill  does  to  now  into  the  rivu- 
let, and  the  rivulet  into  the  sea.  Should  every 
little  streamlet  tarry  at  its  fountain  head,  where 
would  be  the  river  and  the  ocean  which  is  now 
bearing  commerce  and  wealth  upon  its  never 
ending  tide  ?  So  will  it  be  with  the  human  mind, 
If  properly  cultivated,  it  will  march  on  undis. 
turbed  until  it  reaches  the  summit  of  intellectu- 
al glory.  But  how  many  a  youth  of  the  finest  in- 
tellect, has  lived  and  died  useless  and  unnknow- 
merely  because  scanty  poverty  invaded  the 
threshhold  of  early  life,  preventing  the  "bud" 
from  bursting  into  an  open  flower.  Poverty  ob- 
scured it  from  public  gaze,  and  the  youth  when 
thus  abandoned  becomes  a  victim  to  a  licentious 
world,  left  to  live  and  die  unknown,  unhonored, 
and  unsung,  as  though  man  were  decreed  by  the 
fiat  of  nature  and  her  God,  to  be  a  slave  to  igno- 
rance from  his  cradle  to  his  tomb. 

Once  establish  the  free  school  system,  and 
knowledge,  which  may  well  be  termed  the  "in- 
clined plane"  of  power,  and  "lever  of  liberty/' 
will  no  longer  be  monopolized  by  the  wealthy 
and  favored  few.  Those  who  have  heretofore 
been  unable  to  struggle  along,  can  then  enter  the 
arena  of  learning,  bold  aspirants  to  reach  the 
temple  of  Pytho,  and  finally  arrive  at  the  goal  of 
intellectual  glory,  acquiring  an  education  that 
will  add  other  nobler  and  more  essential  elements 
to  the  happiness,  prosperity  and  welfare  of  our 
common  country,  than  the  renown  consequent  on 
military.achievments  and  territorial  acquisition, 
though  it  is  true  that  such  renown  may  add  new 
splendor  to  the  name  of  the  republic  if  justly 
and  equitably  won.  But  intelligence,  which  is 
the  consequent  result  of  a  good  education,  is  that 
which  alone  will  be  found  to  be  the  true  constit- 
uent of  that  auspicious  power  that  will  preserve 
and  perpetuate  the  liberties  which  were  solemnly 
declared  to  be  ours  by  the  declaration  of  freedom, 
to  which  is  appended  the  names  of  the  immortal 
Jufterson,  Franklin,  Hancock,  and  others,  who 
formed  a  bright  constellation  of  true  hearted 
Americans,  of  a  character  almost  beyond  human 
perfection.  Like  these  men,  let  us  likewise 
make  our  vows  at  freedom's  altar,  and  weigh  well 
our  relative  duties  to  the  millions  of  freemen 
who  are  to  follow  us.  For  one  moment  let  us 
visit  the  sage  of  Monticello,  the  immortal  author 
of  that  sacred  instrument,  the  philosopher  Ben- 
jamin Franklin,  and  John  Hancock,  whose  bold 
signature,  as  yonder  exhibited,  [pointing  to  the 
painting  of  the  signers  of  the  .Declaration  of  In- 
dependence,] was  characteristic  of  his  gigantic 
and  dauntless  mind.  Although  these  worthies 
have  gone  to  their  tombs,  let  us  not  ask  the  ques- 
tion— 

"  Has  earth  no  more  such  seed  within  her  breast," 

but  be  it  ours  to  cultivate  it  to  the  same  ripe 
maturity,  in  fancy  let  us  visit  those  honored 
graves  whose  flowery  turf  is  still  humid  with  a 


nation's  tears,  and  there  behold  the  stupenduous 
purchase-price  of  liberty, — then  turning  our 
gaze  upon  our  country's  triumphant  banner, 
swear, — 

"  With  her  to  live,  lor  her  to  die," 
loudly  protesting  against  ignorance  in  every  form, 
»s  it  is  the  parent  of  anaichy,  contusion  and  un- 
justifiable revolutions.  Literature,  apparently,  is 
yet  in  the  bud,  as  many  of  the  piesent  generation 
scarcely  urideistand  the  alphabet,  by  which  lo 
give  an  expression  to  tfce  thoughts  of  their  differ- 
ent order  ->t  genius.  Their  best  conceptions  are 
lost  in  the  obscurities  of  their  native  rubbish.  To 
remedy  as  far  as  possible  this  startling  evil,  let  us 
establish  free  schools,  making  them  liberal  tem- 
ples of  learning  crucibles,  in  which  the  edifices 
of  the  mind  may  be  formed.  As  the  sculptor 
forms  the  marble,  giving  it  form  and  beauty,  so 
may  the  intellect,  be  burnished  and  brought  forth 
to  astonish,  to  d  zzle,  and  to  improve. 

I  hold,  sir,  that  I  he  diffusion  of  intelligence  and 
the  principles  of  liberty,  should  be  co.extensive, 
as  one  will  be  very  likely  to  perish  without  the 
other.  They  are  twin  stars  in  a  firmament  of 
their  own,  and  in  case  either  should  be  extinguish- 
ed, or  partially  eclipsed,  that  firmament  would 
exhibit  but  a  dim  and  sickly  light.  Then  should 
we  not  provide  ample  means  for  ihe  education  of 
all  our  children  ?  If  we  should  not,  might  we  not 
as  well  trust  the  lamb  to  the  safe-keeping  of  the 
wolf,  or  powder  to  the  devouring  flames,  or  the 
salvation  of  the  human  soul  to  the  Sun  of  the  Mor- 
ning? If  we  desire  to  perpetuate  our  freedom  that 
it  may  not  be  buried  amid  the'ruins  of  its  own  in- 
stitutions, let  us  guard  our  liberties  by  establish- 
ing a  s>stem  of  schools,  whose  altar  fires  can  ne- 
ver be  extinguished,  thereby  preventing  the  mid- 
night darkness  of  ignorance  from  spreading  over 
"the  land  of  the  brave  and  the  home  of  the  free," 
whose  only  abode  is  beneath  the  concave  ot  Co- 
lumbia's heaven. 

Like  religion,  free  schools  will  send  forth  their 
apostles,  who  will  render  your  constitution  and 
your  country  a  greater  service  than  all  the  more 
splendid  deeds  of  man  could  confer.  You  will 
give  her  I  he  living  elements  of  durable  and  future 
glory,  a  wall  of  pure  hearts  around  her,  the  Imht 
of  great  souls  to  direct  her  at  freedom's  alt,.r, 
where  all  will  be  able  to  judge  correctly  of  their 
relative  duties  to  the  constitution  and  their  coun- 
try. 

It  has  been  well  said,  sir,  by  an  eminent  indi- 
vidual, that  education  and  intelligence  are  the 
surest  guarantees  for  the  prosperity  of  nations  as 
well  as  individuals.  It  this  be  true,  sir,  then  let 
me  ask  every  memoer  of  this  Convention  to  make 
the  inquiry  of  himself  whether  we  should  not,  at 
ihis  advanced  period  of  time,  establish  such  a  sys- 
tem of  schools  as  shall  afford  such  advantages  to 
the  poor  man's  children,  as  shall  elevate  them  to 
the  same  common  level  with  those  of  ihe  rich,  so 
far  as  education,  adapted  to  the  wants  of  a  tree 
people  shall  tend  to  make  them  so,  that  our  pos- 
terity may  not  have  it  lo  say  that  the  brilliant  sun 
of  the  19th  century  has  dawned  upon  the  world 
in  vain,  and  that  at  this  era  every  individual  ap- 
peared to  have  lived  for  himself,  regardless  of  the 
mental  or  moral  improvement  of  his  fellow  men  ? 

Here  I  cannot  help  hut  dweil  upon  the  enor- 
mous evils  of  ignorance— the  deep  reproach  with 


1024 


which  it  covers  us — the  dangers  that  it  threatens, 
and  the  burdens  thnt  it  entails.  It  is  not  neces- 
sary to  speak  of  the  appalling  amount  or  pauper- 
ism and  crime  that  it  has  caused,  of  prisons  peo- 
pled, and  lands  impoverished.  I  pause  not,  sir, 
to  describe  the  numberless  evils  and  nameless 
sufferings  it  has  produced,  I  would  only  say  that 
it  has  been  estimated  that  there  are  over  2,000,000 
of  free  white  chilnren  in  the  United  States  who 
are  growing  up  apparently  perfectly  ignorant  of 
all  that  ennobles,  refines,  arid  exalts  the  human 
mind;  and  it  is  a  lamentable  fact,  that  there  are 
over  half  a  million  of  free  white  citizens  in  the 
United  States,  above  the  age  of  twenty  years,  who 
can  neither  read  nor  write.  With  a  knowledge 
of  these  facts  before  me,  for  one,  I  cannot  but  re. 
gard  our  school  system  as  being  very  defective 
and  imperfect,  un»uited  to  the  age,  very  far  be- 
hind the  spirit  of  the  times,  and  in  a  great  mea- 
sure opposed  to  the  genius  of  our  republican  in- 
stitutions. Then  shall  we  waste  our  time  in  fra- 
ming apologies  for  our  ignorance,  instead  of  adop 
ting  means  to  remove  the  evil  at  once  and  for- 
ever? 

It  is  said,  sir,  that  JEolus  locked  up  the  winds 
in  the  mountain  caverns,  and  that  the  sun  stood 
sull  at  the  bidding  of  Joshua.  But  I  cannot  be- 
lieve that  we  have  any  of  their  legal  representa- 
tives in  this  Convention,  as  I  believe  that  a  large 
majority  of  the  members  of  this  body  are  in  favor 
of  this  very  important  measure  of  reform,  which  if 
adopted  by  us  and  submitted  to  the  people  for 
their  approval  and  ratification,  will  I  apprehend, 
meet  with  feeble  opposition,  and  indeed  all  at- 
tempts to  obstruct  it,  will  only  be  like  an  attempt 
to  chain  the  lion  to  his  lair  by  throwing  cobwebs 
about  his  mane.  For  one  I  desire  to  see  the  means 
of  acquiring  an  education  made  free  to  all  as  the 
air  that  surrounds  us  and  of  which  we  breathe — 
so  extended  and  expanded  as  to  afford  an  opportu- 
nity tor  the  poor  man's  child,  without  restriction, 
to  inhale  its  purifying  and  salutary  influence. 

In  a  republican  form  of  government  like  ours, 
I  doubt  not  that  all  are  in  lavor  of  extending  ihe 
blessings  of  education  without  limit,  from  the 
pines  of  our  northern  highlands  to  the  palm  trees 
of  our  southern  frontier,  believing  as  I  do,  that 
the  true  glory  of  a  nation  does  not  consist  in  the 
extent  of  iis  territory,  but  in  the  majesty  of  its  in- 
tellect, not  in  the  sound  of  populous  cities  spring- 
lug  up  in  the  wilderness,  but  in  the  virtue  and  in 
teiligenceof  tbe  people,  which  are  the  surest 
gnaranty  of  their  purity  and  good  morals. 

I  am  well  aware,  sir,  it  may  be  urged  by  many 
that  the  legislature  have  full  power  to  pass  laws 
that  would  carry  out  all  that  ha*  been  proposed  by 
the  committee.  ThisViay  all  be  very  true.  But 
from  the  experience  of  past  legislation,  it  is  quite 
evident  that  the  fluctuating  and  vascillatmg  no- 
tions of  men  are  such,  that  those  who  fill  our  leg- 
islative halls  are  continually  repealing,  modifying 
and  altering  all  our  laws.  Scarcely  a  legislature 
convenes  but  what  our  school  law  undergoes  some 
sort  of  modification  or  revision  ;  it  has  no  kind  ol 
permanence  or  stability,  consequently  it  will  be 
continually  liable  to  change.  We  may  have  free 
schools  to-day,  but  to-morrow's  sun  may  usher  in 
some  new  s\stem,  or  new  theory.  These  contin- 
ual changes  are  nearly  as  hostile  to  the  spiiit 
enius  and  management  of  our  school  institutions, 


as  the  deadly  simoons  that  sweep  over  the  desert 
sands  of  Arabi.i  are  to  those  who  traverse  the  re- 
gions of  that  country. 

Again,  under  the  present  system,  the  law  has 
become  so  voluminous  and  so  complex  that  it  is 
a  source  of  trouble  and  confusion,  frequently  end- 
ing in  serious  litigation  and  expense.  It  is  instru- 
mental of  much  mischief  in  almost  every  district 
in  the  state,  growing  out  of  the  fact  that  the  strict 
letter  of  the  law  has  not  been  clearly  understood 
or  closely  obeyed,  from  a  want  of  knowledge  or  a 
clear  understanding  of  its  effects  and  operation  by 
those  who  are  called  upon  to  execute  or  adminis- 
ter it.  Sir,  since  my  recollection,  the  school  law, 
and  the  rules  for  its  regulation,  have  swelled  up 
from  a  small  pamphlet  to  a  large  volume,  and 
have  now  become  so  voluminous  and  so  complex 
that  it  requires  a  good  lawyer  to  understand  them, 
and  about  as  much  reading  as  is  necessary  to  ad- 
mit an  individual  to  practice  at  the  bar  in  the 
higher  courts.  But  if  you  would  establish  a  well 
digested  system  of  free  schools  upon  some  firm 
and  inflexible  basis,  under  suitable  legislative  reg- 
ulation, stripped  of  many  of  the  forms  and  much 
of  the  required  paraphernalia  that  is  necessary  in 
carrying  out  our  present  system,  much  of  which, 
in  my  judgment,  is  entirely  superfluous,  and  in- 
stead thereof,  establish  a  permanent  system,  so 
organized  and  so  arranged,  that  its  existence  may 
not  be  as  liable  to  change  as  the  winds  of  heaven 
or  the  notions  of  men,  you  would  obviate  and  re- 
move many  of  the  difficulties  that  now  seem  to 
exist,  and  the  great  object  of  education  would  not 
be  so  much  misunderstood  or  be  so  grossly  neg- 
lected. The  great  fundamental  principles  of 
American  liberty,  of  equal  laws  and  equal  rights, 
should  be  discussed  and  taught  every  child  in  our 
land.  The  first  great  principles  imbibed  by  the 
youth  of  our  country  should  be  those  of  liberty 
and  equality.  All  our  literature  should  partake 
of  a  republican  tone,  instead  of  that  of  the  ene- 
mies of  freedom.  Here  might  I  not  say  that  Eng- 
land performs  the  mighty  labor,  to  a  very  great 
extent,  of  thinking  and  writing  for  this  vast  na- 
tion of  freemen.  To  remedy,  as  far  as  possible,  this 
startling  defect,  I  deem  it  of  vital  importance  to 
the  rising  generation  that  we  establish  a  system 
of  schools  upon  some  firm,  fixed  and  irrevocable 
basis,  to  be  so  regulated  in  their  organization  by 
legislative  enactment  as  to  make  them  good 
schools,  because  it  is  in  these,  our  primary  schools, 
that  the  child  obtains  first  impressions,  there  lay- 
ing the  foundation  for  its  future  usefulness.  In 
all  good  works  the  beginning  is  one  half;  then 
should  riot  the  fountain  at  which  the  mind  first 
drinks  and  becomes  refreshed  and  strengthened 
for  its  onward  career  of  usefulness  and  glory,  be 
pure  and  abundant  ?  Knowledge  should  be  im- 
parted to  every  child;  we  should  spread  wide  the 
ample  field  to  those  young  buds  of  being  in  whom 
our  country's  hope  soon  must  rest.  It  must  be 
conceded  by  all  that  the  blessings  of  education, 
the  equality  of  companionship  and  benevolence 
extended  towards  the  youth  of  our  country,  will 
infuse  the  principles  of  permanence  into  our  na- 
tional existence. 

With  us,  in  part,  the  responsibility  rests.  Shall 
we  neglect  to  mature  a  plan  to  be  submitted  to  the 
people  for  the/r  approval  that  is  to  determine  in 
a  great  measure,  whether  virtue  and  intelligence 


/025 


shall  illume  every  dwelling,  or  whether  the  clouds 
mrance  shall  enshroud  the  glory  of  our  land, 
scattering  from  its  wings  destruction  and  desola- 
tion. The  issue  seems  fail  ly  made  up.  It  is  wheth- 
er we  are  willing  that  ignorance  should  fill  our 
dwellings  with  violence  and  crime,  or  patriotism 
and  peace  shall  become  the  stability  of  our  times, 
and  continue  through  all  after  generations.  Let 
us  not  be  blinded  by  our  love  of  dollars  and  cents 
so  far  as  to  neglect  the  young  and  rising  genera- 
tion ;  leaving  the  bright  intellect  of  many  of  those 
who  are  to  come  after  us,  and  who  must  necessa- 
rily rise  up  and  fill  our  places,  to  grope  their  way 
in  darkness,  without  the  means  of  education  being 
afforded  them. 

Man  is  born  to  die,  and  so  are  nations ;  and  do 
we  expect  to  escape  its  universal  doom  in  a  world 
strewed  with  the  mouldering  wreck  of  empires  ? 
If  we  do,  sir,  we  must  enlighten  and  elevate  man, 
which  can  only  be  done  by  well  -educating  the 
youth  of  our  country,  thereby  enabling  them  to 
soar  above  the  obsolete  forms,  hoary  prejudices, 
political  abominations,  and  national  absurdities 
derived  from  past  ages.  Sir,  it  is  ignorance,  the 
lack  of  education,  that  seems  to  bind  man's  freest 
thoughts  and  palsy  his  boldest  exertions.  It  is  ig- 
norance that  forms  the  fatal  virus,  that  rules  man 
as  it  were  with  a  rod  of  iron.  It  is  ignorance  that 
forms  the  most  stupendous  obstacles  in  the  way 
of  our  national  progress.  It  is  ignorance  upon 
which  is  based  our  blind  veneration  for  ancient 
usages  and  long  established  customs.  Man  wor- 
ships at  this  pernicious  shrine,  paying  homage 
and  adoration  to  all  those  antiquated  notions  that 
have  been  handed  down  from  one  generation  to 
another,  rushing  rapidly  onward,  pursuing  the 
phantoms  of  the  past,  because  they  are  crimsoned 
o'er  with  the  hoar  of  ages,  thereby  sealing  the  lips 
of  millions,  and  consigning  the  laboi  ing  classes 
to  inferiority,  and  defying  the  mediations  of  rea- 
son and  common  sense ;  and  which  will  continue 
in  a  great  measure  to  be  so  through  countless 
ages,  unless  the  people  spurn  these  ignoble  fet- 
ters, and  rise  up  in  the  majesty  of  their  omnipo- 
tence and  lay  the  foundation  or  crowning  stone  of 
glory  and  joy. 

If  we  should  withhold  the  means  of  education 
from  our  children,  what  stability  could  we  hope 
for  in  our  present  form  of  government?  Our 
legislature  might  revise,  enlarge  and  amend  our 
penal  code,  but  would  it  not  be  cruel  mockery 
for  us  to  place  these  statutes  beyond  the  reach  of 
our  childien,  that  they  inigtu  nui  be  able  lo  read 
them,  by  withholding  a  knowledge  of  the  charac- 
ters which  compose  them?  It'  so,  then  let  us  af- 
lord  every  child  the  means  of  acquiring  a  good 
common  education ,  which  alone  will  prevent  inure 
crime  than  the  election  of  a  fallows  as  high  as 
Human's.  For  one,  sir,  I  hope  that  the  resolution 
may  be  adopted  with  a  view  ol  considering  the  re- 
port, that  we  may  propose  some  system  to  be  sub- 
mitted to  the  people  lor  their  approval — the  final 
adoption  of  which  will  be  the  carrying  out  of  one 
of  the  great  fundamental  principles  lor  which  our 
patriotic  tat  hers  so  strongly  contended,  viz : — "Me 
pursuit  of  Happines  and  Virtue"  They  by 
their  unwearied  exertions  laid  the  foundations 
broad  and  deep.  With  Herculean  vi^ot  they  rais- 
ed those  ponderous  columns  of  Freedom,  that 
seem  to  tower  so  sublimely  in  their  unparalleled 

103 


grandeur.  They  completed  enough  to  demonstrate 
the  possibility  of  the  task,  and  ensure  the  perfec- 
tion of  the  design,  when  death  overtook  them, 
leaving  it  for  us,  or  some  more  patriotic  genera- 
tion to  finish.  Then  shall  we  neglect  this  golden 
opportunity  of  establishing  upon  some  firm,  fixed 
and  irrevocable  basis,  such  a  system  of  schools  as 
shall  afford  an  opportunity  for  every  child  to  be- 
come educated,  or  shall  we  continue  our  reverence 
for  all  those  old  systems  under  which  man  has  li- 
ved for  ages,  and  which  are  nearly  ready  to  tum- 
ble to  pieces  from  the  weight  of  their  own  rotten- 
ness, many  of  which  deserve  long  since  to  have 
been  consigned  to  merited  oblivion  ?  Or  shall  we 
enlist  all  our  energies  to  perfect  the  glorious  woik 
our  fathers  began,  thereby  rendering  out  emanci- 
pation perfect  and  complete? 

When  that  happy  day  shall  come,  who  will  not 
be  proud  to  exclaim  in  the  fullness  of  his  soul, — 
"I  too  am  a  citizen  ot  the  Empire  State!— the  land 
of  Intelligence,  of  Virtue,  of  Freedom,  and  good 
morals."  Sir,  should  we  propose  to  submit  the 
Free  School  question  to  the  people,  and  should 
they  adopt  it,  I  would  ask  what  member  of  this 
Convention  would  not  be  proud  that  he  had  aided 
in  perfecting  this  glorious  design?  When  popu- 
lar sentiment  shall  have  climbed  the  dizzy  heights, 
making  melody  in  the  mountain  air,  and  proudly 
reverberating  throughout  the  rich  and  fertile  val- 
lies,  the  towns  and  cities  of  this  great  and  flourish- 
ing state,  and  when  all  the  other  bright  constel- 
lations in  this  proud  confederacy  shall  have  caught 
the  glad  tidings,  borne  upon  every  breeze,  freight- 
ed with  rich  lessons  emanating  from  this  glorious 
system,  thereby  influencing  them  to  strive  to  emu. 
late  our  glorious  example.  Will  not  the  free 
school  system  then  hare  become  like  some 
mighty  cataract.  Nay,  sir,  will  it  not  be  the  "po- 
pular Niagara  of  America,"  and  like  that  noble 
work  of  Nature  and  of  Nature's  God — stand 
through  all  after  time,  a  proud  and  enduring 
monument  of  the  wisdom  end  liberality  of  the  age 
in  which  it  had  its  origin  ? 

The  free  school  system  once  established  through- 
out the  new  world,  the  story  of  its  virtuous  lame 
will  be  written  in  the  highest  vault  of  popular  ex- 
pression, its  eulogy  will  be  heard  in  the  deep 
t«ned  voice  of  posterity,  whose  loud  accents  of 
approval  will  go  rolling  along  the  shores  of  time, 
until  it  is  engulphed  in  the  mighty  vortex  of 
eternity. 

Mr.  BAKER  stated  that  he  was  as  anxious  as 
any  man  to  consider  deliberately  all  the  matters 
that  had  been  brought  before  the  Convention ;  but 
believing  that  we  could  much  better  consider  by 
continuing  at  work,  he  moved  to  lay  the  resolu- 
tion on  the  table. 

Mr.  KENNEDY.  I  would  suggest  that  the 
article  on  education  should  be  placed  after  the 
report  of  committee  No.  14. 

Mr.  NICOLL  hoped  Mr.  BOWDISH'S  motion 
would  pass. 

Mr.  VAN  SCHOONHOVEN.  Then  we  shall 
never  reach  it. 

Mr.  KENNEDY.  Then  place  it  after  the  re- 
port of  committee  No.  4. 

Mr.  BOWDISH.  I  am  willing  to  assent  to 
that. 

Mr.  NICOLL.  Mr.  President,  I  call  for  the 
ayes  and  noes  on  laying  this  motion  on  the  table. 


1026 


The  ayes  and  noes  were  ordered,  and  resulted, 
Ayes  34.  Noes  60. 

Mr.  WORDEN  said  if  this  subject  were  taken 
up  there  would  not  be  time  to  dispose  of  it. — 
Upon  the  first  great  principle  that  every  child  in 
this  state  should  receive  an  education  in  our  com- 
mon schools,  all  were  agreed.  It  was  necessa- 
ry, however  at  this  point  that  we  should  leave 
the  details  unsettled.  For  the  purpose  of  dispo- 
sing of  this  section,  he  moved  to  amend  by  strik- 
ing out  the  resolution  and  inserting  as  follows  : 

Resolved,  That  the  committee  on  revision  be  instructed 
to  incorporate  the  following  section  in  the  Constitution, 
in  such  form  that  it  may  be  submitted  separately  to  the 


bt).  vine  legislature  shall,  at  its  first  session,  after  the 
adoption  of  this  Constitution,  and  from  time  to  time  there- 
after, as  shall  be  necessary,  provide  by  law  for  the  free 
education  and  instruction  of  every  child  between  the  ages 
ot  faur  and  sixteen  years,  whose  parents,  guardians  or 
employers  shall  be  residents  of  the  state,  in  the  common 
schools,  now  established,  or  which  shall  hereafter  be  es- 
tablished therein  -,  the  expense  ol  such  education  and  in- 
struction,  after  applying  the  public  funds  as  provided  by 
law  shall  be  defrayed  by  taxation,  at  the  same  time,  and 
in  the  same  manner,  as  may  be  provided  by  law  for  the 
liquidation  of  tow  n  and  county  charges. 

Mr.  PATTERSON  said  if  this  was  to  be  a  res- 
olution of  instruction  it  required  some  amend- 
ment. He  saw  no  reason  to  educate  children 
from  the  ages  of  four  to  sixteen  free,  and  to  limit 
it  to  that  age.  He  thought  the  period  should  be 
extended  so  that  all  who  had  not  had  the  oppor- 
tunity to  obtain  an  education  early  in  life,  might 
be  able  to  obtain  it. 

Mr.  KENNEDY  objected  that  the  provision  of 
Mr.  WORDEN  was  not  a  proper  amendment  to  the 
resolution  of  Mr.  BOWDISH. 

Mr.  NICOLL  did  not  want  to  see  one  section 
adopted  without  the  others  being  considered.— 
He  did  not  wish  the  U.  S."  Deposite  Fund  to  be 
left  for  legislative  scrambling. 

Mr.  HARRIS  thought  the  means  of  bearing 
the  expense  of  the  education  ot  these  children, 
should  be  left  to  the  legislature. 

Mr.  VAN  SCHOONHOVEN  said  there  was  no 
subject  before  the  Convention  of  equal  importance 
with  this.  If  it  were  to  be  taken  up,  he  hoped  it 
would  be  in  the  regular  form,  as  the  report  of  a 
committee,  and  discussed  in  its  order.  We  could 
take  it  up  to-morrow,  and  dispose  of  it,  and  he 
hoped  that  course  would  be  pursued. 

Mr.  HARRIS  moved  to  amend  the  proposition 
of  Mr.  WORDEN  by  striking  out  all  after  the  word 
"  therein." 

Mr.  WORDEN  assented. 

Mr  RUSSELL  said  that  children  were  as  nu. 
merous  in  log  houses  as  they  were  in  marble  pa- 
laces. He  prererredia'general  state  tax  to  defray 
the  expenses  of  education. 

Mr.  WORDEN  would  not  have  offered  the  sec. 
tion  if  he  had  thought  there  was  a  disposition  se- 
riously to  consider  this  report  in  Convention. 

Mr-  RUSSELL  contended  that  the  poor  should 
be  educated,  not  at  the  expense  of  their  localities, 
but  of  the  entire  state,  every  part  of  which  was 
interested  in  their  culture. 

Mr.  BRUCE  moved  the  previous  question,  but 
he  was  induced  to  withdraw  it,  that 

Mr  WORDEN  might  make  some  explanations. 
On  concluding  he  renewed  the  motion  for  the 
previous  question,  and  there  was  a  second,  &c. 

Mr.  O'CONOR  remarked  that  it  was  desirable 


to  strike  out  the  limitation  to  those  children 
'*  whose  parents,  guardians,  or  employer  shall  be 
residents  of  the  state." 

Mr.  HARRIS  asked  if  any  provision  was  made 
for  children  who  had  no  parents  or  guardian  ? 

Wr.  WORDEN' s  amendment  was  rejected — 39 
to  46 — and  the  resolution  of  Mr.  BOWDISH  agreed 
to,  64  to  29. 

FEUDAL  TENURES.  &C. 

Mr.  CLYDE  offered  the  following,  to  lay  on 
the  table  until  to-morrow  :— « 

Resolved,  That  the  select  committee  to  whom  is  refer- 
red the  revision  of  the  several  articles  adopted  by  the  Con- 
vention, be  instructed  to  report  the  following  as  an  addi- 
tional article  :/— 

^  1.  All  feudal  tenures  of  every  description,  with  all  their 
ncidents,  are  abolished. 

^  2.  No  lease  or  grant  of  agricultural  land  for  a  longer 
period  than  ten  years,  hereafter  made,  in  which  shall  be 
reserved  any  rent  or  service  of  any  kind,  shall  be  valid. 

§3.  All  covenants  or  conditions  in  any  grant  of  land 
whereby  the  right  of  the  grantee  to  alien  is  in  any  manner 
restrained,  and  all  lines,  quarter  sales  and  other  charges 
upon  alienation  reserved,  in  every  grant  of  land  hereafter 
to  be  made,  shall  be  void. 

LEGISLATIVE    SALARIES. 

Mr.  MANN  ottered  a  resolution  ot  instruction 
to  the  committee  ot  revision,  to  report  an  arti- 
cle requiring  the  legislature  to  fix  by  law,  the  per 
diem  allowance  or  compensation  of  all  cificers  of 
the  legislature.  He  wished  to  prevent  the  dis- 
graceful provisions  which  the  supply  bills  had  for 
some  years  exhibited. 

Mr.  WORDEN  regarded  this  as  small  business, 
and  not  at  all  belonging  to  the  Convention.  He 
also  defended  the  legislature  and  its  finance  com- 
mittees, against  the  imputations  of  the  gentleman 
from  New  York. 

Mr.  TALLMADGE  wished  to  express  his  dis- 
sent to  all  these  motions,  to  refer  articles  and  sec- 
tions to  the  engrossing  committee.  He  moved  to 
lay  the  resolution  on  the  table.  Agreed  to. 

Mr.  WORDEN  threw  back  any  imputations 
that  might  have  been  thrown  upon  the  Legisla- 
ture in  relation  to  these  supply  bills. 

Mr.  TALLMADGE  wished  to  enter  his  protest 
against  the  principle  of  allowing  this  engrossing 
committee  to  be  instructed  to  repoit  any  aitieles 
that  have  not  been  discussed  in  the  Convention. — 
Gentlemen  under  the  previous  question  were  con- 
stantly in  a  lalse  position,  and  voting  against  their 
own  wishes. 

EXPIRATION  OF  OFFICE. 

Mr.  RUSSELL  moved  that  the  committee  of 
revision  be  instructed  to  insert  some  provision  in 
the  new  constitution  by  which  the  expiration  of 
the  term  of  those  offices  which  are  by  it  abolish- 
ed, should  be  designated. 

Mr.  PERKINS  moved  to  amend  so  as  to  direct 
the  committee  to  report  a  suitable  provision  on 
Monday  morning  at  9  o'clock.  [Oh  no,  say  Sat- 
urday.] He  would  yield  to  the  wishes  of  those 
around  him  and  say  Saturday  morning  at  9  o'clock. 

The  amendment  was  agreed  to,  and  the  resolu- 
tion as  amended,  adapted. 

ELECTIVE  FRANCHISE. 

On  motion  of  Mr.  KENNEDY,  the  Convention 
resumed  the  report  of  the  committee  on  the  elec- 
tive franchise — the  pending  amendment  being  to 
strike  out  in  the  first  section,  the  word  "white." 

Mr.  KENNEDY  said,  the  absence  of  the  chair- 
man of  committee  No.  4,  (Mr.  BOUCK,)  and  two 


1027 


others  of  its  most  intelligent  members,  had  de- 
volved on  him,  in  part,  the  duty  of  explaining  the 
views  which  influenced  them  in  presenting  the 
portion  of  the  section  under  debate.  This  ques- 
tion had  been  very  fully  examined  by  the  commit- 
tee. Opportunity  had  been  afforded  to  those  who 
felt  an  interest  in  the  subject,to  lay  their  views  and 
wishes  before  it.  Among  others  a  delegation  from 
the  colored  population  had  appeared,  and  the  same 
privilege  was  extended  to  them.  After  many 
meetings,  and  laborious  application,  the  opinion 
prevailed  in  the  committee,  nearly  unanimously, 
adverse  to  property  qualification  for  an  elector,  in 
any  case.  The  mere  possession  of  property  was 
deemed  to  be  no  test  of  political  merit ;  that  the 
colored  man,  whether  possessed  of  property  or 
not  of  a  certain  kind,  and  to  a  certain  extent,  was 
entitled  to  natural  rights  ;  and  that  if  political 
privileges  were  extended  to  his  race,  they  should 
not  depend  on  his  possessions,  but  on  his  man- 
hood. The  possession  of  property  by  the  white 
man  was  no  infallible  evidence  of  either  intelli- 
gence or  patriotism.  One  dependent  for1  his  daily 
bread  on  his  daily  toil,  might  surpass  him  in  both. 
And  there  was  no  good  reason  for  believing  that 
color  would  make  an  essential  difference  in  these 
particulars.  This  article,  therefore,  was  design- 
edly put  in  the  form  in  which  it  was,  for  the  pur- 
pose of  excluding  from  our  fundamental  compact, 
the  last  vestige  of  an  odious,  cruel  and  unjust  con 
dition  for  holding  office,  and  exercising  suffrage. 
If  the  colored  man  was  worthy  of  being  admitted 
to  these  privileges,  it  should  be  on  a  principle  of 
perfect  equality.  He  should  be  either  excluded 
altogether  from  a  participation  in  government,  on 
account  of  his  race ;  or  admitted  into  full  connex- 
ion for  th-  sake  of  his  humanity.  The  honorable 
and  learned  gentleman  who  occupied  the  floor 
yesterday,  seemed  determined  to  confound  rights 
with  privileges,  in  discussing  this  question  ;  and 
boldly  claimed  the  elective  franchise  as  a  right. 
In  these  views  he  couid  not  concur.  Rights  were 
emanations  from  nature ;  born  with  him  to  whom 
they  belonged,  and  alienable  only  for  offences  a- 
gainst  society — and  this  under  all  forms  of  govern- 
ment. But  on  the  contrary,  privileges  were  ac- 
quired,— conventionally,  or  by  grant  of  the  gov- 
erning power.  When  long  possessed,  they  were 
sometimes  denominated  civil  rights,  but  they  ne- 
ver became  naturalized.  In  considering  a  ques- 
tion of  this  kind,  full  of  abstractions,  it  was,  to 
say  the  least,  disingenuous  to  endeavor  to  confound 
natural  rights  with  civil  franchises.  It  would  not 
be  disputed  that  civil  rights  or  privileges  were 
the  constant  subject  of  mutation,  while  natural, 
rights  were  inalienable.  Should  it  be  conceded 
that  the  elective  suffrage  is  not  a  franchise,  but  a 
natural  right,  to  whom  would  it  belong?  and  who 
would  be  entitled  to  its  exercise  ?  Not  male  citi- 
zens of  natural  age  and  diverse  colors  only.  No, 
sir  ;  natural  rights  recognized  no  more  distinctions 
in  age.  or  sex,  than  in  color  or  condition.  Nor  did 
they  stop  with  our  women  and  children  :  but  fairly 
and  honestly  carried  out,  would  extend  the  exer- 
cise to  every  human  being  who  might  happen  to 
be  on  our  soil  on  an  election  day,  in  the  same 
manner  in  which  they  would  be  entitled  to  their 
personal  liberty  or  the  enjoyment  of  life.  Gen- 
tlemen had  made  themselves  merry  in  ridiculing 
the  result  to  which  their  own  arguments  natu- 


rally conducted  them  ;  but  declaim  as  they  might 
against  the  results  of  their  own  reasoning,  and 
ridicule  as  they  must  the  extreme  to  which  they 
were  led  by  such  perversion,  if  suffrage  was  a  na- 
tural right,  women  and  children  were  among  your 
electors.  But  let  gentlemen  speculate  as  they 
might  on  false  premises,  their  ingenuous  fallacies 
were  transparent  even  to  themselves.  The  elec- 
tive suffrage  was  a  privilege,  a  franchise,  a  civil 
right,  and  not  a  natural  right ;  and  the  governing 
power  might  limit,  restrict  or  extend  the  exer- 
ise  of  it  in  such  manner  as  to  it  might  seem  wise 
and  proper ;  and  was  in  duty  bound  to  confer  it 
only  on  such  as  could  in  the  exercise  of  it,  best 
subserve  the  objects  of  good  government.  Those 
persons  having  the  control  and  responsibilities  of 
government  resting  upon  them,  had  the  sole  right 
to  determine,  in  their  discretion,  who  should  par- 
ticipate with  them  in  its  exercise.  Any  deviation 
from  this  rule  was  revolutionary.  Civilized  soci- 
ety throughout  the  world  had,  with  a  few  excep- 
ted  cases,  connected  with  the  right  of  descent, 
limited  political  privilege,  to  mature  age  and  the 
male  sex.  By  this  restriction,  the  governing 
power  in  this  state  was  in  the  possession  of  about 
one-fifth  of  the  population.  If  this  sovereignty 
was  too  much  concentrated  for  the  general  wel- 
fare— if  a  necessity  had  arisen  for  its  enlargement, 
let  it  not  be  by  amalgamating  with  us  a  people 
who  were  foreigners  in  our  midst.  The  females 
of  mature  age,  of  our  own  race,  were  entitled  to 
a  preference,  when  we  were  prepared  to  make 
such  an  extension.  The  gentleman  from  Orleans, 
(Mr.  PENNIMAN,)  in  derogation  of  his  own  argu- 
ment in  favor  of  the  natural  right  of  suffrage,  re- 
marked that  delicacy  should  prevent  females  from 
uniting  in  the  exercise  cf  political  power.  But 
what  sort  of  delicacy  was  that  which,  refusing 
political  privilege  to- the  mothers  of  our  being, 
the  wives  of  our  bosoms,  the  children  of  our  love, 
and  the  sisters  of  our  blood,  would  squander  it 
upon  those  whom  nature  had  marked  as  a  distinct 
race  ;  and  who  were  merely  an  excrescence  upon 
our  society  !  In  supporting  this  preference  he 
did  not  design  to  be  understood  as  advocating  any 
farther  extension  of  the  elective  franchise;  but, 
in  case  an  extension  were  made,  he  would  con- 
sider it  matter  for  gratulation,  should  it  still  re- 
main in  the  possession  of  our  own  flesh  and  blood. 
But  what  was  the  gross  proposal  submitted  by  the 
gentleman  from  Madison  (Mr.  BRUCE)ror  our  con- 
sideration ?  Nothing  less  than  to  permit  all  who 
bore  the  name  and  likeness  of  man  to  participate 
in  our  inestimable  privileges  !  To  permit  the 
Ethiopian  race  to  become  an  important  portion  of 
the  governing  power  of  the  state  !  To  allow  that 
race,  the  farthest  removed  from  us  in  sympathy 
and  relationship  of  all  into  which  the  human  fam- 
ily was  divided,  to  become  a  participant  in  gov- 
erning, not  themselves,  but  us  !  Nature  revolted 
at  the  proposal. 

We  v\ere  informed  by  physiologists,  that  the  hu- 
man family  was  divided  inlo  five  races,  all  of 
which  had  distinctive  characteristics.  Those  two 
which  had  the  fewes:  points  of  resemblance  were 
the  Caucasian  and  Ethiopian.  Indeed  in  their  pu- 
rirv,  they  were  almost  antipodes  to  each  other,  as 
we'll  in  habits  and  manners,  as  in  complexion  and 
physical  organization.  These  rariations  were  not 
made  by  man,  nor  by  human  government.  It  was 


1028 


the  work  of   nature,   and  was  not  without  its  ob- 
ject.    Let  not  government  dare  to  counteract  and 
overthrow  the    distinctions  and  divisions  that  na 
ture  designed  should  exist ;    as  was  evident  from 
the  strong  manner  in  which  they  had  been  mark- 
ed.    In   supporting  these    views  (said  Mr.  K.)    I 
disclaim  all  hostility  of  feeling  towards  the  Afri- 
can race.     My  earliest  sympathies  were  awakened 
in  their  behalf,  and  my  young  blood  prompted  me 
to  indiscretion    for  their  sake.     True,    they    had 
evidently  been    much  improved  in   transportation 
from  the'ir  native  wilds,  where  they  were  but    lit- 
tle superior  to  the   mimic  man,  their    co-inhabi- 
tant.    But,  sir,    they  surrounded   me  in  bondage, 
and  slavery  seemed  to  me  as   too  severe  a  penalty 
for  ignorance  and  degradation.     At  a  period  when 
the  real  friends  of  these  unfortunate  people    could 
fearlessly  and   effectively  act    in  their  behalf,    al- 
though yet  young,  I    was  industriously  employed 
in  promoting,  by    my  i'eeble  efforts,  their  success. 
In  a  slave  state,"  with  slave  owners,  and  slave  dri- 
Ters,  and  slaves    surrounding  us,    year  alter  >ear, 
we  brought  forward  our  candidate — for  the  legis- 
lature— on  the  hustings  and  in  the  maiket   place. 
There  was  no  concealment  in  our  movements — no 
underground  railroad     operation — but  openly  and 
frankly  avowed  our    purpose  to  be,  ihat  no  more 
slaves  should  be  born  in  the  slate.     Sir,  we  went 
on  prosperously;    all  classes  listened  to  us  atten- 
tively; and  our  vote    annually  increased — but  sir, 
at  the  very  moment  when  the  hearts  of  the  slave, 
holders  were  melting  down  in  feelings  of  good  will 
to  the  cause,  and  they  were    counselling  one  with 
another  on  the  best  means  ol    ridding  therrseives 
ot    that  which  they  were  convinced    was  a  blight 
to  their  land—a  pitiless  ruffian  torced  his  way  into 
our  midst,  ur^ed  on  by  fanaticism   that  was  blind 
to   all  the  means  by  which  alone  he  could  obtain 
success;    and  ruthlessly  endeavored  to  compel  the 
slaveholder    to  do  that  which  he  was  about  to  do 
of  his  own  fiee  will.     The  menacing  attitude,  and 
boisterous  tongue  of  this  intruder  into  a  domestic 
circle,  had  its  usual  effect.     The  slaveholder  pla- 
ced himself  in  a  position  for  defence.     Sir,  the  se- 
quel is  soon  told— on  that  day  anti-slavery  was  left 
dead  upon    the  field;    and  the  loosened    fetters  ot 
the  slave  were  replaced  with  double  rivets.     The 
scenes  which  soon  after  occurred  at  Southampton, 
tell  the  rest.     Allow  me  now  to  add,  that  the  de- 
struction of  the  active  efforts  of  anti  slavery  in  the 
south,  is  the  only  victory  I  have  ever  known  abo 
litionism  to  gain.    But,  the  spirit  of    anti-slavery 
is  immortal,  and  awaits  only  the  prostration  of  its 
adversary  to    arise  in  majesty    and  power.     Anti- 
slavery  efforts,  by  a  gradual  process,  will  yet  suc- 
ceed ;  while  abolitionism  can  only  incite  the  own- 
er to  increased  vigilance,  and  compel  a  more  vig- 
orous discipline  over  the  slave.    To  say  that  I  am 
free  from  prejudice,  would  be  to  conceal  my  feel- 
ings.    1  confess  myself  under  its  operation  ;    pos- 
sibly equally  as  much    as  gentlemen  appear  to  be 
under   the  domination  of    a  fanaticism  that  would 
reverse     the    order     of    natural    sympathies;— 
that    would  take    to    their    bed    and  board,   the 
extreme    link  of  humanity,  simply  because  it  is 
the   extreme   link  of  humanity.     He  would   also 
confess  that  his  feelings  prompted  him,  when  ma- 
king concession  of  privilege,  to  begin    by  confer- 
ring it  on  those  of  his  own  race  who  had  been  ex- 
empt ;  and  then  to  the  next  akin.    On  that  princi- 


ple the  Ethiopian  is  the  one  which  would  receive 
his  favor  last,  while  providing  for  the  mixture  of 
races.  The  circumstance  of  thet-e  people  having 
been  born  on  our  land,  did  not  give  them  claims  of 
country.  They  were  brought  here  under  compul- 
sion ;  and  remained  from  ar  necessity  that  is  al- 
most paramount ;— uncontrolled  either  by  them- 
selves or  others.  But  he  did  not  feel  inclined  to 
oin  with  those  who  took  special  pride  in  under- 
rating their  mental  capacity.  Observation  had 
convinced  him,  as  it  convinced  Mr.  Jefferson 
that  they  were  capable  of  being  improved, 
ar  above  their  ordinary  standard.  He  could  in- 
stance  cases  of  great  industry  and  close  applica- 
tion, on  the  part  of  pure  specimens  of  the  race,  in 
obtaining  such  literary  improvement  as  accidental- 
ly catne  within  their  reach,  and  which  would  have 
been  creditable  to  men  of  any  color.  Their  ag- 
gregate moral  character  was  a  more  ftt  subject  for 
the  painful  consideration  of  the  philanthropist. — 
He  said  it  grieved  him,  when  on  coming  to  reside 
at  the  north,  he  found  how  much  deeper  in  degra- 
da'ion  the  free  colored  man  of  New  York  stood, 
than  the  same  class  did  any  where  in  the  south  ; 
that  they  had  higher  aspirations  than  their  breth- 
ren in  the  south,  with  less  merit  to  sustain  them. 
He  would  not  now  allude  to  this  point  had  not 
the  colored  delegation,  in  their  ignorance  of  sta- 
tistics, invited  investigation  and  comparison. 

It  had  been  an  ordinary  observation  that  there 
was  more  vice  among  colored  people  than  whites, 
in  proportion  to  the  population  ot  each  respective- 
ly. And  this  was  disputed  by  the  delegation;  ad- 
mitting at  the  same  time,  that  convictions  for  mi- 
nor offences  might  be  proportionably  greater  than 
with  the  whites.  Which  was  accounted  for  thus: 
"When  a  colored  man  commits  an  offence,  there 
are  a  thousand  chances  to  one  he  is  taken  up,  be. 
cause  he  has  not  the  opportunity  of  exercising  po- 
litical retaliation."  He  would  lay  before  the  Con- 
vention, statements  obtained  entirely  from  sources 
that  might  be  deemed  official,  and  on  which  reli. 
ance  might  be  placed.  First  of  Blackwell's  Is- 
land, where  minor  offences  only  are  punished,  but 
are  of  two  classes.  By  the  report  of  the  prison 
association  of  May,  1846.  p.  86,  it  would  be  seen 
that  the  visifing  committee  on  Nov.  8th,  1845, 
found  the  following  inmates:— 
Court  Convicts,  whites  348 

colored  96 

Police  convicts,  whites        838 

colored  &8 

1186        154 

No  persons  were  imprisoned  at  this  penitentiary 
except  for  offences  committed  in  the  city  of  New 
York.  The  population  of  which,  by  the  census 
taken  the  preceding  August,  was  as  follows: — 

Whites,  358,310 

Colored,  12,913 

Or  one  person  colored  to  twenty-seven  and  three- 
quarters  white,  [1  to  27,755.]  From  which  the 
following  deductions  resulted:  White  peniten- 
tiary convicts  were  about  as  one  to  three  hundred 
and  two  of  the  white  population,  [1  to  302,112.]— 
Colored  penitentiary  convicts  were  about  one  to 
eighty-three  and  three  quarters  of  the  colored  po- 
pulation, [1  to  83,827.]  Or,  the  relative  piopor- 
tion  of  penitentiary  convictions,  was  more  than 
three  and  a  half  times  greater  in  the  colored  than 


1029 


the  white  population  of  the  county  of  New  York 
[3,603  to  I.]  So  that  even  in  the  class  of  minor 
offences,  the  summary  convictions  of  the  colored 
people  were  much  less  in  por  portion)  than  those 
by  a  court  and  jury,  which  were  for  offences  of  a 
higher  degree.  But  the  returns  he  had  obtained 
from  the  several  state  pi isotis  would  show  that 
these  people  had  attained  a  greater  eminence  ir 
the  higher  crimes,  for  which  alone  they  were 
punishable  in  these  institutions.  He  directed  his 
enquiries  to  the  condition  of  each  prison,  at  the 
nearest  possible  period  to  the  1st  August  1845,  the 
date  ot  the  last  census: — 
SIHG-SING  PRISON  : 

White.    Colored.    Indian 

Sept.  30th,  1845— Convicts,        630  228 

AUBURN  PRISON  : 

Jan.  1st,  1S46— Convicts,  603  80 

CLINTON  PRISON  : 

Aug.  1st,  1S46— Convicts,         175  21  2 

1408  329  2 

The  census  of  1845  gave  the  following  popula- 
tion of  each  race  in  the  state:  — 

Total  white  persons,  2,660,149 

Do.    colored  persons,  44,446 

Do.    Indian  (including  Schoolcrafts 

enumeration,)  6,179 

These  results,  when  retiuced  to  an  unit,  produce 
the  following  pVoportions: — 

There  is  one  white  state  prison  convict  to  about 
one  thousand  eight  hundred  and  eighteen  ot  the 
white  population  [1  to  1,818,287  ] 

There  is  one  colored  slate  prison  convict  to 
about  one  hundred  and  thirty-four  and  three-quar- 
ters of  the  colored  population,  [1  to  134,759  ] 

Or,  the  relative  proportion  ot  infamous  crime  is 
nearlv  thirteen  and  a  half  times  as  great  in  the  co- 
lored population  as  in  the  white,  [13,489  to  1  ] 

This  result  far  exceeded  any  thing  he  had  anti- 
cipated when  he  entered  on  the  ex  minafion  of  it; 
and  contained  evidence  of  a  criminal  disposition 
in  the  race  that  he  had  never  before  rightly  ap. 
preciated.  And  there  was  nothing  to  sustain  the 
slightest  suspicion  that  injustice  had  been  done  to 
any  one  of  those  incarcerated,  notwithstanding  the 
bold  insinuation  contained  in  the  high  reaching 
.aspirations  of  one  of  the  colored  delegates  before 
the  committee,  when'he  asked  whether  any  co- 
lored man  had  ever  been  tried  in  this  country  by 
a  colored  jury  ?  And  answered,  "No!  they  are 
tried  by  white  jurors,  and  sentenced  by  white 
judges.'*  He  would  say  but  a  word  or  two  more 
relative  to  those  whom  he  desired  to  treat  with 
all  kindness.  It  had  been  denied  on  the  part  of 
those  who  were  the  special  advocates  for  extend, 
ing  to  them  our  political  privileges,  that  it  was 
not  intended  to  take  them  into  social  union. 
The  delegates  who  appeared  before  the  committee, 
did  not  so  understand  the  matter.  They  freely 
discussed  the  means  whereby  existing  prejudices 
could  be  overcome;  and  avowed  that,  should  you 
"enfranchise  the  man  of  color,  you  will  have  no 
more  prejudices  against  him  ;"  and  in  the  strongest 
terms  denounced  their  "exclusion  from  proper 
places  in  churches,  in  colleges,"  &c.  And  not  to 
be  misunderstood  on  this  point,  one  of  them,  a 
pure  specimen  of  the  race,  asserted  in  the  most 
emphatic  manner,  that"  God'*  design  is  to  anni- 
hilate the  distinctions  of  caste, by  bringing  them 
together  in  this  country."  Their  views  oil  this 
subject  could  not  be  mistaken. 


He  would  return  to  the  motion  under  conside- 
ration, to  strike  out  the  word  "  white"  in  the  first 
line,  and  protest  against  its  adoption.  The  form 
in  which  the  committee  propose  to  submit  the 
question  to  the  people  is  plain  and  simple  :  one 
section  providing  for  the  continuance  of  the  fran- 
chise to  the  "  white  male  citizen,"  &c.  and  a  sep- 
arate one,  to  be  voted  on  separately,  for  extend- 
ing to  "  colored  male  citizens"  the  same  privile- 
ges on  the  same  conditions,  and  with  the  same 
advantage  of  eligibility  for  office,  with  the  white 
citizen.  If  the  judgment  of  the  people  of  New 
York  on  this  momentous  subject,  was  in  reality 
desired,  why  such  objection  from  gentlemen  to 
this  plain  manner  of  putting  the  question  ?  Did 
they  fear  that  the  people  were  not  yet  prepared 
for  their  visionary  schemes  I — or,  after  all  their 
professions  ot  love  for  the  people — of  confidence 
in  the  dear  people — which  we  had  heard  so  much 
of  within  the  last  four  months  ;  were  they  not  to 
be  trusted  with  the  decision  of  this  question? 

Mr.  DANA  replied  to  Mr.  KENNEDY.  In  re- 
lation to  the  convictions  for  crime,  he  said  it  was 
not  surprising  that  they  were  so  numerous.  The 
wonder  was  that  all  the  colored  people  were  not 
degraded  so  low  by  the  treatment  they  met  with, 
as  to  make  the  number  of  criminals  greater.  He 
contended  that  his  colored  brother  was  entitled  to 
be  placed  on  an  elevation  which  would  give  him 
the  privileges  of  citizenship. 

Mr  BRUCE  explained,  and  replied  to  Mr. 
RUSSELL,  and  made  an  impassioned  appeal  in  be- 
half of  equal  rights.  He  called  upon  the  Conven- 
tion to  decide  whether  the  colored  people  were 
men  or  not.  If  they  were  men,  he  claimed  for 
them  the  enjoyment  of  the  common  rights  of  men ; 
otherwise  make  them  slaves  to  yourselves  and 
your  children  and  trample  them  in  the  dust  for- 
ever. 

Mr.  DANA  said  he  was  glad  to  hear,  that  his 
colored  brother  ever  had  a  friend  at  the  South. — 
He  was  glad  to  learn  that  the  sympathies  of  the 
honorable  gentleman  from  New  York,  who  had 
just  taken  his  seat,  had  once,  though  long  ago, 
been  awakened  in  behalf  of  this  injured  people. 
He  too,  has  once  been  industriously  employed,  in 
procuring  their  success.  He  has  been  an  anti- 
slavery  man.  Although  in  a  slave  state,  sur- 
rounded with  slaves  and  their  owners  and  drivers, 
he  belonged  to  an  anti- slavery  party.  And  with  its 
candidates  for  office,  his  party  publicly  avowed 
in  the  hustings  of  the  market  place,  that  their 
purpose  was  the  overthrow  of  this  Heaven  ac- 
cursed system.  In  the  midst  of  their  prosperity, 
when  all  things  went  on  swimmingly  ;  when  all 
classes  listened  attentively  to  their  appeals  in  be- 
half of  his  dear  colored  brother;  when  their 
•inti-slavery  vote  was  rapidly  increasing  ;  when 
the  hard  hearts  of  even  the  wicked  slave  holders 
were  melting  down  with  godly  sorrow  for  their 
past  transgressions,  and  with  feelings  of  good 
will  for  the  cause  of  emancipation  ;  when  all 
hearts  were  full  of  hope  that  the  day  of  their  de- 
iverance  from  the  blighting  curse  of  this  Heaven- 
daring  and  soul-crushing  system  ;  just  then,  the 
gentleman  informs  us,  a  blind,  pitiless,  menacing, 
anatical  ruffian  forced  his  way  into  their  midst, 
and  boisterously  demanded,  that  they  should  do — 
.vhat  ?  Why,  just  what  they  were  then  about  to 
do  of  their,  own  free  will.  And  the  sequel,  says 


1030 


my  honorable  friend,  is  soon  told.  On  that  day, 
anti-slavery  was  left  dead  upon  the  field  5  and  the 
loosened  fetters  of  the  slave  were  hastily  replac- 
ed and  doubly  riveted.  But  it  is  cheering  to 
hear  from  the  honorable  gentleman,  that  notwith- 
standing this  universal  abandonment  of  our  poor 
colored  brother,  he  remained  his  unwavering 
friend.  He  has  told  us  of  his  grief,  at  their  de- 
graded condition  here  at  the  north.  The  out-go- 
ings  of  his  philanthropic  soul  are  still  toward 
them  ;  and  with  painful  anxiety,  he  desires  their 
elevation.  And  what  great  measures  for  the  re- 
lief and  elevation  of  the  colored  native  citizens 
of  this  state  does  the  honorable  gentleman  pro- 
pose ?  Having  farther  examined  the  subject,  he 
has  ascertained,  that  the  Caucassian  and  Ethio- 
pian races  are,  in  their  physical  organization,  an- 
tipodes to  each  other  ;  and  that  it  would  be  ex- 
tremely dangerous  for  government  to  venture  on 
the  attempt  to  allow  our  colored  people  the  rights 
of  men.  He  has  likewise  ascertained,  in  the 
progress. of  his  labors  in  their  behalf,  and  re- 
searches for  their  benefit,  that  they  are  naturally 
vicious  :  and  that  a  criminal  disposition  in  their 
nature  clearly  distinguishes  them  from  the  whites, 
and  he  seems  to  have  been  frightened  out  of  his 
propriety,  because  a  colored  gentleman  asserted 
in  his  presence,  "  that  it  is  God's  design  to  anni- 
hilate the  distinctions  of  caste  in  this  country." — 
From  such  f-iends,  well  may  my  colored  brother 
exclaim,  said  Mr.  D.  "Good  Lord  deliver  us." 

In  regard  to  the  statistics,  which  the  honorable 
gentleman  has  produced,  to  show  that  a  larger 
proportion  of  our  colored  people  are  imprisoned 
for  crime,  Mr.  D.  had  a  word  to  say.  In  the  first 
place,  it  is  hardly  possible,  that  persons  in  their 
condition  should  have  an  impartial  trial.  Hated, 
trodden  down,  and  despised,  they  had  not  the 
means  to  procure  counsel  to  defend  themselves 
against  false  and  malicious  charges,  and  false 
witnesses  ;  and  too  often,  an  accusation  against 
them  was  equivalent  to  conviction.  But  on  the 
other  hand,  said  Mr.  D.  the  wonder  should  not 
be,  that  a  larger  proportion  of  them  than  of  the 
whites,  compared  with  their  relative  numbers, 
should  be  guilty  of  offences  against  the  laws  of 
the  white  man,  in  the  enactment  of  which,  they 
have  had  no  agency,  either  directly  or  indirectly, 
and  the  duty  of  obedience  to  which  has  been  in- 
culcated on  them  by  brute  force  only ;  but  the 
wonder  should  be  that  any  of  them  have  escaped. 
The  wonder  is  not  that  one  in  eighty-four  of  them 
are  convicted  of  offences  against  the  laws,  but 
that  one  in  a  hundred  should  not,  under  the  cir- 
cumstances of  the  case,  be  guilty  of  the  most  of 
crimes.  He  asked  for  his  oppressed  colored  bro- 
ther the  restoration  to  him  of  his  equal  political 
rights,  so  long  and  so  wickedly  denied  him. — 
Whatever  else  we  may  afford  to  do,  we  cannot 
afford  to  violate  the  principles  of  eternal  recti- 
tude. We  cannot  afford  to  do  wrong. 

Mr.  BERGEN  moved  the  previous  question. 

There  was  considerable  excitement  and  much 
confusion,  during  which  it  was  impossible  to  hear 
distinctly  what  transpired. 

The  motion  for  the  previous  question  was  vo- 
ted down. 

Mr.  TOWNSEND— I  renew  it. 

Mr.  BAKER.  On  that  I  call  the  ayes  and  noes. 
There  was  not  a  second,  ayes  31,  noes  £2. 


Mr.  HUNT  went  into  the  subject  of  negro  suf- 
frage at  some  length.  His  doctrine,  and  that  of 
bis  constituents,  in  relation  to  the  right  of  suf- 
'rage,  was  briefly  this.  We  (said  he)  want  no 
masters,  and  least  of  all  no  negro  masters,  to  reign 
over  us  .  We  contend  for  self-government.  We 
hold  that  no  man  who  is  not  a  partizan  of  the  re- 
public's self — who  is  not  a  bona  fide  citizen,  shall 
have  any  voice  in  the  state.  We  also  concede  to 
all  other  persons,  and  all  other  nations,  in  their 
respective  spheres,  the  same  rights  we  claim  for 
ourselves.  The  fact  that  all  men  had  a  right  to 
form  themselves,  or  rather  are  formed  by  the  op- 
eration of  circumstances  and  the  law  of  necessity, 
into  distinct  nations  or  states — that  every  nation 
had  the  right  of  self-government  without  the  in- 
terference of  aliens  or  of  other  states,  so  long  as  it 
will  take  the  trouble  to  exercise  that  right  with 
any  tolerable  degree  of  wisdom  and  justice:  we 
are  entirely  left  out  of  sight  by  the  advocates  of 
negro  suffrage.  They  forget  that  negroes  were 
aliens — aliens,  not  by  mere  accident  of  foreign 
birth — not  because  they  spoke  a  different  lan- 
guage— not  from  any  petty  distinction  that  a  few 
years  association  might  obliterate,  but  by  the 
broad  distinction  of  race — a  distinction  f  hat  neith- 
er education,  nor  intercourse,  nor  time  could  re- 
move— a  distinction  that  must  separate  our  chil- 
dren from  their  children  for  ever.  He  regretted, 
as  much  as  any  one,  that  this  class  of  irreclaima- 
ble aliens  was  fastened  upon  us.  If  any  good 
could  come  of  wishing,  he  could  wish  as  heartily 
as  any  one,  that  the  Ethiopian  might  change  his 
skin,  and  become  a  part  of  our  body  politic.  But 
all  such  wishes  and  all  efforts  to  realize  them, 
were  idle.  They  might  indicate  a  very  good  dis- 
position, but  they  did  not  indicate  a  very  good 
head.  We  might  close  our  eyes  in  a  fit  ot  amiable 
enthusiasm,  and  try  to  dream  their  wool  out  of 
curl ;  but  our  dream  did  them  no  good.  They 
knew  and  felt  all  the  while,  (that  is,  all  sane  ne- 
groes,) that  they  were  negroes  and  aliens  by  the 
act  of  God,  and  there  was  no  remedy.  The  great- 
est injury  that  any  man  could  inflict  upon  his 
fellow,  was  to  place  him  in  a  false  and  un- 
natural position — lo  tempt  him  into  a  path  which 
he  could  not  travel,  a  sphere  not  his  own  ;  to  se- 
duce him  into  a  war  against  his  inevitable  desti- 
ny, and  thus  destroy  his  powers  of  usefulness  and 
his  chances  of  happiness 'together.  In  his  judg- 
ment, our  negroes  had  thus  been  injured  by  their 
mends.  They  had  been  deluded  with  unreal 
hopes,  and  blinded  to  their  true  destiny,  as  he 
read  it,  far  ignoble.  For  as  they  progressed  m 
knowledge,  their  piide  would  incite  them  to  re- 
turn to  the  home  of  their  race,  where  they  could 
hold  the  position  of  superiors  and  teachers.  They 
had  gained  much  by  their  intercourse  with  civil- 
ized men.  They  were  no  longer  idolaters— no 
longer  naked  savages.  They  had  made  much  pro- 
gress in  the  arts  and  the  learning  of  a  superior 
race.  They  yet  n.ight— he  believed  they  yet 
would— convey  these  arts  and  this  lean. ing  lo 
their  uncivilized  brethren.  Such  was  the  path 
he  would  point  out  to  them — the  destiny  he  would 
aid  them  to  accomplish.  As  lo  the  practical  ef- 
fect of  negro  suffrage  in  New  Yoik  city,  he  pre- 
dicted that  it  would  be  the  exclusion  ( f  the  race 
from  Manhattan  Island.  Another  consideration  : 
The  Jews  were  forbidden  to  yoke  animals  of  dii- 


1031 


ferent  kinds  together;  and  if  it  were  wrong  to 
unite  the  cow  and  the  ass  in  the  same  yoke,  would 
it  be  right  to  unite  the  Caucasian  and"  the  negro 
race  in  the  same  government?  To  conclude: 
The  reason  why  his  constituents  refused  to  enter 
partnership  with  negroes  in  the  business  of  go- 
vernment were,  that  they  could  perform  all  then 
political  duties  better  without  their  help  than 
with  it.  They  did  not  wish  to  debase  themselves 
by  any  hypocritic.il  professions  of  fellowship. — 
They  could  not  acknowledge  as  co-citizens  a  class 
of  men  more  widely  separated  from  them  than 
any  other  race  upon  the  globe,  and  who  cannot  be 
naturalized  bj  any  fiat  of  law  or  lapse  of  time. — 
We  know  (said  he)  that  we  put  ourselves  upon  a 
par  with  negroes  whenever  we  put  negroes  upon 
a  par  with  us.  We  cannot  enter  into  any  politi. 
cal  amalgamation  with  blacks.  We  will  not  med- 
dle with  their  government  in  St.  Domingo  nor  in 
Africa,  and,  if  we  can  prevent  it,  they  shall  not 
meddle  with  ours. 

Mr.  A.  W-  YOUNG  in  reply  to  Mr.  HUNT, 
quoted  from  the  Declaration  of  Independence,  in 
which  the  word  color  does  not  occur.  A  docu. 
ment  which  was  written  by  a  man  whose  follow- 
ers many  here  profess  to  be— but  he  was  satisfied 
that  if  Thomas  Jetferson  could  only  witness  their 
conduct  and  hear  their  language,  he  would  dis- 
own all  such  democrats.  He  proceeded  to  con- 
tend that  colored  people  were  as  intelligent  as 
etnmigrants  from  foreign  countries,  and  was  as 
much  entitled  to  the  elective  franchise.  He  al- 
luded to  the  statistics)  furnished  by  Mr.  KENNEDY, 
and  regretted  that  the  statistics  of  the  good  por- 
tion of  that  race  had  not  been  furnished  also. — 
He  denied  that  the  bad  were  more  criminal  than 
other  races  in  like  condition.  He  also  denied  that 
the  slave  owners  were  ever  about  to  do  what  abo- 
litionists required  them  to  do-  All  they  ever 
contemplated  was  expatriation. 

Mr.  NICOLL :  I  think,  Mr.  President,  this  sub- 
ject has  been  sufficiently  discussed,  [cries  of  oh, 
no,  no  !]  I  move  the  previous  question,  for  I'm 
satisfied  the  debate  will  not  change  a  single  vote. 

Mr.  SIMMONS  (vehemently.)  Then  vote  the 
previous  question  down. 

Mr.  BRUCE:  I  call  for  the  ayes  and  nays  on  se- 
conding the  call  for  the  previons  question.  Or- 
dered, and  they  resulted,  ayes  41  nays  49,  no  se- 
cond. 

Mr.  RHOADES  said  that  he  could  but  regret 
that  a  delegate  from  the  great  city  of  New  York 
— the  commercial  emporium  of  this  country — a 
city  which  professed  to  have  a  purer  democracy 
than  that  in  any  other  part  of  the  world — should 
advocate  the  deprivation  of  rights,  simply  on  the 
ground  of  a  difference  in  the  complexion  of  the 
skin,  or  the  curl  of  the  hair.  He  also  felt  great- 
ly disappointed  when  he  heard  the  argument  of 
the  representative  and  mouth-piece  of  the  com- 
mittee (Mr.  KENNEDY).  Why,  sir,  so  great  is 
the  democracy  of  the  New-York  progressives, 
that  a  negro  is  not  permitted  even  to  drive  a  cart 
there.  They  are  degraded  to  the  lowest  point  ol 
moral  and  social  position  there^ — as  well  as  polit- 
ical. And  yet  one  of  the  representatives  of  thai 
city  has  based  his  argument  on  the  statistics  oj 
crime  committed  by  a  class  of  men  whom  the 
democrats  of  that  city  have  degraded  so  low. 

Mr.  MANN  :  That  is  not  so. 


Mr.  WATERBURY  said  the  Convention  was 
about  to  vote  upon  a  proposition  which,  if  adop- 
'.i:d,  would  place  us  upon  the  same  looting  as  Ver- 
mont, Massachusetts  and  Rhode  Island.  He 
thought  we  might  with  safely  assume  the  position 
which,  they  occupy.  The  gentleman  from  New 
York  (Mr.  KENNEDY)  had  brought  in  the  women 
and  children  to  sustain  his  argument.  But  the 
wives  and  children  of  all  white  citizens  were 
protected  in  their  rights  and  privileges  by  hus- 
bands and  brothers.  Where  do  you  find  any  one 
to  stand  up  for  the  colored  man  ?  Not  one.  The 
argument  that  because  a  race  of  men  are  marked 
by  a  peculiarity  of  color  and  crooked  hair,  they 
were  not  endowed  with  a  mind  equal  to  another 
class  who  had  other  peculiarities,  was  unworthy 
of  men  of  sense.  The  negro  race  must  always 
make  a  part  of  our  population.  Colonization 
would  never  transfer  them  all  to  their  original 
country.  As  well  might  we  attempt  to  drain  out 
all  the'water  of  the  ocean  with  a  dipper.  What 
position  they  would  occupy,  he  was  not  prepared 
to  say;  but  he  would  remind  gentlemen  that  those 
who  were  once  slaves  in  Rome  became  freemen. 
The  argument  of  the  gentleman  from  St.  Lawrence 
(Mr.  RUSSELL,,)  reminded  him  of  the  Pharisee 
who  went  into  the  temple  to  pray,  and  forgetting 
his  errand,  went  on  to  brag  how  much  better  he 
was  than  other  people.  [Laughter.] 

Mr.  STOW  said  in  one  single  lespect,  he  was 
entitled  on  this  occasion  to  be  heard  over  some 
other  gentlemen  who  had  addressed  the  Conven. 
lion — he  might  say  over  almost  all — tor  almost  all 
who  had  spoken  had  said  that  they  came  here  un- 
der pledges,  and  that  they  were  bound  to  vote  in 
a  particular  manner,  and  that  in  fact  they  had  no 
sort  of  right  to  listen  to  any  argument  on  the  sub- 
ject. Now  in  all  these  respects  he  stood  impar- 
tial. He  was  asked  to  express  his  convictions 
when  he  became  a  candidate  for  this  Convention, 
but  his  answer  was,  that  on  no  subject  would  he 
go  pledged.  His  mind  should  be  left  open  to  the 
convictions  of  reason  and  good  counsel,  and  on  no 
other  terms  would  he  consent  to  stand  on  this 
floor.  He  claimed  to  be  a  free  man,  free  to  do 
what  his  undeistanding  and  his  conscience  dic- 
tated to  be  right.  On  this  subject  now  before  the 
Convention,  he  should  perhapsdiffei  from  some  of 
his  political  tnends.  It  was  one  on  which  there 
was  a  diversity  of  opinion  ;  indeed  with  him,  the 
first  enquiry  was  now,  to  settle  this  question, — 
whether  this  was  a  question  of  absolute,  abstract 
moral  right  ?  If  it  were  true  that  there  was  no 
discretion — that  they  we^  bound  by  the  rule  of 
moral  duly  and  religious  obugation  to  pursue  a  par- 
ticular course,  there  was  an  end  of  the  argument — 
not  only  with  respect  to  the  amendment,  but  to 
the  entire  section  and  article.  Because,  if  they 
were  really  to  adjudge  what  was  a  question  of  ab- 
stract right,  and  not  to  settle  political  relations 
and  the  true  policy  of  the  people  of  this  state,  it 
was  their  business  to  strike  out  the  entire  section. 
I!  that  were  true,  why  have  any  qualifications? 
Wherefore  the  qualification  of  21  years  of  age? 
Wherefore  the  qualification  of  male  citizenship? 
Wherefore  a  residence  of  one  year?  Why  not  al. 
low  it  to  all  of  both  s>  xes,  and  all  conditions  and 
ages,  whether  alien  or  citizen,  if  it  was  a  matter  of 
absolute  right?  The  great,  fundamental  error  was 
that  it  was  not  a  right—it  was  a  franchise.  And 


1032 


what  did    franchise   mean?     A  privilege,  as  the 
had  heard   argued,     to   be    conceded  by  all    th 
citizens  of  a  country  to  those  who  will  exercise  i 
best,  for  the  common  interest  of  all.     It  wa 
therefore  a  matter  of  policy  and  expediency  an< 
not  of  abstract  right,   by  any- manner  of  means 
But  some   gentlemen  had  said  in  answer  to  sucl 
positions,   m  the   language  of  the  Declaration  o 
Independence,   "  that  all  men  are  created  equal 
that  they  are  endowed  by  their  Creator  with  cer 
tain  inalienable  rights,  that  among  these  are  life 
liberty,  arid  the  pursuit  of  happiness" — and  who 
was   going  to  deny  such  an  obvious  proposition 
Not  he.     But  that  did  not   help  us.     The  ques 
tion  was  how  are  these  great  right! — life,  liber- 
ty and  the  pursuit  of  happiness — to  be  best  pro- 
tected ?    Not  whether  the  rights  now  claimed 
are  abstract  rights,  but  whether  we  shall  better 
protect  our  rights,  by  limiting  the  franchise  to  a 
peculiar  class  of  persons.     If  it  should  be  shown 
that  a  portion  would  exercise   the  elective  fran- 
chise best,  and  best  secure  life,  liberty,  and  the 
pursuit  of  happiness,  then  he  submitted  that  it 
was  their  solemn  duty  to  make  restrictions.    The 
question  was  one  of  policy.     Ought  we  then  un- 
der the  circumstances  in  which  we  are  placed, 
to  make  this  restriction  ?     He  was    of  opinion 
that  some    restriction  should    be   made ;  but  he 
would  here  remark,  that  sound  policy,  prudence, 
and  a  species  of  justice,  too,  required  that  they 
should  restore  the  old  clause  of  the  constitution 
and  allow  colored  persons  to  vote  who  had  here- 
tofore   had    that    privilege ;    and    hereafter    he 
should  submit  an  amendment  to  effect  that  ob- 
ject— but  they  ought  not    to  go   further.     And 
why  not  ?    Because   we  had   prejudices,  as  the 
gentleman  from  Onondaga  had  said  ;  and  if  pre- 
judices led  to  evil  results,  they  must  take  some 
notice  of  them  in  this  country.     It  was  difficult 
to  say  how  far  this  prejudice  arose  from  our   nat- 
ural constitution ;  but  arise  as  it  might,   we  had 
got  to  take  notice  of  prejudices,  so   far   as  they 
would  influence  the  true  organization  of  society. 
And  here  was  a  conclusive  objection  against  this 
extension  of  the  elective  franchise.     Why  ?    Be- 
cause when  the  franchise  was  given  to  all  white 
citizens,  they  gave  it  to  a  class  of  men  who  were 
reached  by  the  same   common   sympathies,  who 
felt  the  same  general  influences,  who   participa- 
ted in  the  same  private,  public  and  political  rela- 
tions, and  who  had  all  the  same  general  object. — 
Policy  then  must  govern.     For  that  reason  they 
could  permit  aliens  to  become  naturalized   and 
electors.     Why?      Befause  when  they  become 
citizens  their  interests  were  the  same  in   all   the 
relations  of  life.     The  great  error  to  the  prevent- 
ing foreigners  to  become  voters  was  that  it  pre- 
served amongst  them  a  distinctive  character,  and 
so  long  as  that  was  the  case  they  stood  towards 
us  in  a   false   relation;  it  therefore,  became,  our 
duty  to  break  down  the   barrier   and  remove   all 
prejudices  that  would  serve  to  perpetuate  clans. 
He  was,  therefore,  in  favor   of  giving  the  utmost 
liberty  to  foreigners,  that  we  might  act  with  com- 
mon sympathies,  for  a  common  end  and  object. — 
But  was  this  so  with  regard  to  the  colored    man  ? 
Unfortunately  it  was  not.     He   must  always  be 
governed  by  his  social  and  not  his  political  con- 
dition.    When  a  measure  of  this  character  was 
proposed,  we  must  ask  ourselves  whether  it  would 


tend  to  elevate  him  from  his  degraded  condition. 
Great  difficulties  surround  this  question. 

Mr.  S.  here  made  a  statement  of  a  case  which 
occurred  in  the  city  from  which  he  came,  to  show 
the  influence  of  this  question  on  the  public  mind. 
A  question  arose  whether  colored  children  were 
entitled  to  be  received  into  the  public  schools  on 
an  equality  with  the  whites,  a  question  on  which 
he  should  now  say  nothing.     Afterwards  the  elec- 
tion of  a  Mayor  occurred,   and  that  question  af- 
fected that  election  ;   for  there  were   those  who 
would  give  the  right  to  the  colored  children,  in 
opposition  to  those  who  would  not;  and  he  asked  if 
it  was  not  evident  that  the  vote  of  the  colored  man 
would  be  influenced  by  his  social  condition,  and 
given  to  that  man  who  was  in  favor  of  their  social 
equality?  By  giving  way,  on  this  subject,  to  those 
who  desired  to  extend  the  franchise  to  the  blacks, 
we  should  raise  a  large  number  of  electors  amongst 
us  who  were  not  governed  by  the  same  common 
influences  that  govern  others,  and  who  would 
hold  the   balance  of  power  between  the  parties 
in  the   State.     That  was   one  great,   and  to  his 
mind,  conclusive  argument  on  this  subject.     But 
;here  were  other  reasons  which  must  govern  us. 
We  must  take   notice  both   of  our  political   and 
geographical    relations.      Slavery    prevailed   in 
this  Union.     We  could   not  overlook  that  fact  if 
we  would.     However  desirous  we  might  be  to 
relieve  ourselves  of  that  curse  and  awful  scourge 
of  man — and  no  man  would  be  more  willing  to 
render  his   aid   to   overthrow  it,  than  himself — 
we  must  acknowledge  that  it   existed — we   could 
not   avoid   noticing  it.      Yet   suppose   Kentucky 
should  abolish  slavery,  and  should  pass   the  same 
stringent  law  as  had  been  passed  in  Ohio,  forbid- 
ding a  residence  within  the  limits  of  that  state  to 
he  tree  colored  man,  what  would  be    the   conse- 
quence to  this  state,  particularly  to  that  part  from 
.vhich  he  came  ?     They  would  have  an  avalanche 
jf  men   educated  in   slavery   corning  here  to  tell 
as  how  to  govern.     And  would  it  be  wise  to   in- 
cite the  accession  of  such  a  population — altogeth- 
er the   worst   that   could   come   amongst  us?    It 
/vould  be  dangerous  to   the   best  interests  of  the 
people  to  do  so.     In  his  neighborhood,   they   had 
n    impressive  example  of  the  danger  of  such  a 
ourse.     The  British  government  had  invited  the 
ccession  of  such  a  population  to  its  colony,   and 
t  had  thus  brought  into  Canada  a  worthless  pop- 
htion — a  degraded  class  of  men;  and  the  inba- 
i rants  of  that  country  suffered   morally  and    so- 
ially  from  that  circumstance.     Would  it  then  be 
rudent  to  adopt  that  system   amongst   ourselves, 
f  which  our   neighbors   under   another   govern- 
nent,  so  much  complained  ?    New   England  had 
eeri  referred  to  as  an  example  of  the  absence   of 
anger    in  such    circumstances;    but    to   this    he 
eplied    that    there    was    a    difference    in    geo- 
raphical  position.     Extend   this  right,  and   we 
ecome    the    reservoir    for    this    population    of 
outhern  states  to  be  poured  into.     They  would 
ass  over  us  from  the   south  and  the  west.     We 
must  be  the  recipients  of  men  raised  in  bondage, 
who  would  become  our  Governors  in  freedom. — 
'o  this   we  should   carefully   look,   before   we 
hanu'ed  the   existing  relations  between  us.     As 
o  the  right  or  wrong  of  this  matter,   he  was  not 
rguing ;  but  feeling,  as  our  people  do,  that  the 
African  was  a  degraded  race,  they  would  not  con- 


1033 


sent  to  social  equality,  and  it  would  be  dangerous 
to  our  institutions  to  create  political  «.'<|u;»lity 
where  no  social  equality  existed.  If  we  would 
not  give  them  social  relations,  it  was  dangerous 
to  give  them  political,  and  thereby  put  them  in 
our  jury  boxes  and  our  public  offices.  But  it  was 
said  that  this  would  tend  to  eleva'e  the  cha- 
racter of  the  colored  population.  He  hoped  it 
would  ;  but  yet  he  was  satified  it  must  be  by  slow 
degrees.  If  the  feeling  entertained  against  the 
colored  people  was  mere  prejudice,  it  was  the 
growth  of  centuries,  and  it  had  become  deeply 
fixed  in  our  habits  and  constitutions  ;  and  we  could 
only  eradicate  it  by  degrees.  We  must  go  step 
by  step,  it' we  would  elevate  this  down-trodden 
people,  and  not  by<shocking  even  the  prejudices 
of  our  own  people.  And  again,  who  was  to  be 
affected  by  this  ?  Men  of  high  condition  ?  The 
men  of  wealth,  who  were  removed  far  from  ordi- 
nary connection  with  labor,  would  feel  it  very 
little.  It  would  extend  mainly  to  those  who  la- 
bor day  by  day ;  it  would  reach  that  class  of  citi- 
zens and  draw  them  down  to  give  a  doubtful 
elevation  to  another  class.  On  this  subject  he 
should  not  be  accused  of  d.emagogueism  for 
he  had  too  frequently  shown  his  independence  ; 
he  therefore  with  propriety  could  appeal  to  this 
Convention  and  ask  them  if  they  would  pull  down 
the  working  class  of  men  by  bringing  them  in 
contact  with  a  degraded  race  ?  They  might  in 
their  attempt  to  raise  up  mortals,  draw  down  an- 
gels. He  begged  the  Convention  to  remember 
existing  social  relations,  the  proximity  oi  other 
states,  the  condition  of  slavery  there — and  the 
long  established  habits  of  our  people,  before  they 
attempted  to  make  this  sudden  change.  For 
These  reasons,  succinctly  given,  and  not  at  length, 
as  he  could  wish  to  give  them,  he  should  vote 
against  striking  out.  He  should  however  vote  to 

Eut  them  on  the  footing  on  which  they  had  been 
eretofore,  which  experience  had  shown  to  be 
beneficial.  It  connected  them  with  the  soil,  and 
this  tended  to  the  elevation  of  their  condition. — 
No  danger  had  or  was  likely  to  ensue,  for  their 
number  was  at  best  but  small,  and  would  not 
therefore  be  felt  injuriously  to  affect  society.  He 
thought  we  ought  not  to  take  from  these  men  the 
privileges  we  had  heretofore  given  them,  unless 
some  public  policy  imperiously  demanded  it — 
and  public  policy  must  govern  in  this  case.  He 
should  also  vote  in  the  end  to  allow  the  people  to 
determine  this  matter  for  themselves,  and  if  they 
were  satisfied  that  this  relation  shall  exist  between 
them  and  the  colored  population,  they  had  an  un- 
doubted right  to  decide,  and  he  should  acquiesce 
in  the  settled  sentiment  of  society — but  it  must 
be  remembered  that  social  and  political  equality 
could  not  long  be  kept  distinct. 

Mr.  W.  TAYLOR  stated  that  he  had  been  en- 
tirely misunderstood  by  his  colleague  (Mr. 
RHOADES)  in  regard  to  the  inferences  deduced 
from  his  remarks  of  yesterday. 

Mr.  R.  CAMPBELL  jr.  moved  the  previous 
question  on  the  amendment,  and  there  was  a  se- 
cond— 45  to  33. 

On  the  amendment  of  the  gentleman  from  Ma- 
dison (Mr.  BRUCE),  to  strike  out  the  word 
"white,"  the  result  was,  ayes  37,  noes  63  : — 

AYES-Messrs.  Archer,  Ayrault,  F.  F.  Backus,  H. 
Backus,  Baker,  Bascom,  Bruce,  Burr,  Candee,  (Jiooker, 

104 


Dana,Dodd,Dorlon,  Hawley,  Hotchkiss,  Kirkland,  McNeil, 
Marvin;  Miller.  I'arish,  Patterson,  Penniman,  Rhoades, 
Richmond,  Shaver,  Simmons.  E  Spencer,  W.  11.  Spencer, 
Stanton,  Strong,  Taggart,  Tallmadge,  Van  Schoouhoven, 
Warren,  Waterbury.  Worden,  Young— 37. 

NOfcLS— -Messrs  Allen,  Angel, Bergen.  Bowdish, Brown, 
Brundage,  Bull.D  D.  Compbeil,  R.  Cwnanbell,  jr.,  Clark. 
Clyde,  (Joneiy,  Cook,  Cornell,  Cuddeback,  Danlorlh,  Du/ 
liojs  Graham,  Greene,  Harrison,  Hoffman,  Hunt,  A.  Hunt- 
ington,  Hutchinsori,  Jones,  Kemblo,  Kennedy,  Kernan, 
Kmgsley,  Loomis,  Mann,  McNitt.  Maxwell,  Morns,  Muii- 
ro,  Nellis,  Nicholas,  Nicoll.  O'Conor,  Perkins,  Porter, 
Powers,  President,  Riker,  Russell,  St.  John,  Sanford 
Shaw,  Sheldon,  Stephens,  Stow,  Swackhamer,  Taft,  J.  J. 
Taylor,  W.  Taylor,  Tilden,  Townsend,  Tuthill,  Willard, 
Wood,  A.  Wright,  Yawger,  Youngs— 63. 

Mr.  VAN  SCHOONHOVEN  then  moved  to 
amend,  so  as  to  secure  to  the  colored  citizen  who 
now  has  the  right  to  vote,  the  same  right — as  that 
appeared  to  be  the  settled  sentiment  of  the  Con- 
vention— by  inserting  after  the  word  **  vote"  in 
the  fifth  line,  the  following : 

1 '  And  every  colored  male  citi/en  so  qualified,  who,  un- 
der the  provisions  of  the  existing  Constitution  of  this  state, 
would  be,  entitled  to  vote  for  ail  officers  heretolo re  elec- 
tive by  the  people  thereof." 

Mr.  BRUCE  said  the  amendment  would  not  an- 
swer the  purpose  of  the  gentleman,  for  every  per- 
son "  so  qualified,"  would  have  reference  to  the 
word  "white,"  and  a  negro  could  not  be  a  "white 
colored  citizen." 

Mr.  DODD  contended  that  the  word  white  was 
descriptive  of  the  person  only;  and  formed  no 
part  of  the  qualification. 

Mr.  KIRKLAND,  for  the  purpose  of  obviating 
all  question  as  to  the  intention  of  the  article,  mo 
ved  to  amend  the  section  as  follows  : 

"  But  no  man  of  color,  unless  he  shall  have  been  for 
three  years  a  citizen  of  this  state,  and  tor  one  year  next 
preceding  any  election  shall  be  seized  and  possessed  of  a 
freehold  estate  ol  the  value  of  two  hundred  and  fity  dol- 
lars over  and  above  all  debts  and  incumbrances  charged 
thereon,  and  shall  have  been  actually  rated  and  paid  a  tax 
thereon,  shall  be  entitled  to  a  vote  at  any  such  election 
and  no  person  of  color  shall  be  subject  to  direct  taxa- 
tion \mlessheshallbeseizedand  possessed  of  such  real 
estate  as  aforesaid." 

This  was  an  exact  transcript  of  the  provision 
in  the  present  constitution.  He  proposed  also 
the  following,  as  the  last  section,  in  lieu  of  that 
reported  from  the  committee,}  to  |be  submitted 
separately : 

*}  — .  After  the  year  1S43,  no  property  qualification  shall 
be  require  1  to  entitle  any  citizen  of  this  slate  to  the  exer 
cise  of  the  right  ofsuflrage. 

Mr.  W.  H.  SPBNCBR  moved  to  reduce  the 
qualification  of  colored  freeholders  ttotn  $350  to 
$100. 

On  this  amendment  a  brief  discussion  was  con- 
tinued by  Messrs.  KENNEDY,  W.  H,  SPENCER, 
E.  SPENCER,  A.  VV.  YOUNG,  STOW,  and 
KIRKLAND,  until  2  o'clock,  when  the  Conven- 
tion took  a  recess. 

AFTERNOON  SESSION. 

Mr.  PERKINS,  after  some  remarks  in  opposi- 
tion to  the  property  qualification,  as  a  test  of  ca- 
pacity to  vote,  went  on  to  say  that  this  amend- 
ment provided  in  effect,  that  these  persons  should 
not  be  only  entitled  to  vote,  but  should  also  be 
entitled  to  sit  on  juries,  on  the  bench,  in  the  As- 
sembly, to  do  militia  duty,  &c.  &c.  Were  the 
people  of  the  state  in  favor  of  such  a  thing  as 
that?  Was  there  anything  in  the  Christian  reli- 
gion, or  in  humanity,  that  required  it?  As  to 


1034 


the  argument  that  had  been  adduced  here,  that 
we  were  all  of  one  flesh  and  blood,  Mr.  P.  said 
he  would  not  enter  into  that  controversy  further 
than  to  say,  that  if  there  was  any  veracity  in  scrip- 
ture, mankind  were  at  Babel  divided  into  separate 
classes — that  it  was  the  fiat  of  the  Almighty  that 
they  should  remain  separate  nations — that  he  put 
his  mark  on  these  creatures,  that  it  might  be 
known  that  it  was  a  violation  of  the  law  of  God 
to  commingle  our  blood  with  them  in  marriage. 
That,  he  undertook  to  say — 

Mr.  DANA — Does  the  gentleman  find  that  in 
the  Bible  ? 

Mr.  PERKINS— Yes,  not  in  those  words,  how- 
ever. He  did  separate  them,  for  purposes  of  his 
own,  into  distinct  nations.  These  colored  per- 
sons existed  as  early  as  we  had  any  history  of 
mankind,  as  a  distinct  and  separate  people,  with 
every  distinctive  mark  exhibited  by  the  African 
to  this  day.  Within  a  century  of  the  confusion 
at  Babel,  history  proved  the  direct  fact  that  they 
existed  separately,  with  all  the  physical  marks 
that  we  saw  about  them  now. 

Mr.  WATERBURY— If  they  were  thus  sepa- 
rated at  Babel,  how  came  they  to  go  through  the 
Ark  with  the  rest  ?  [Laughter.] 

Mr.  PERKINS  said  the  gentleman  was  about 
as  correct  in  his  chronology  as  in  some  other 
things.  The  building  of  Babel  was  three  or  four 
centuries  after  the  flood.  His  query  was  of  a 
piece,  in  point  of  accuracy,  with  all  that  had  been 
said  in  favor  of  negro  suffrage.  History  showed 
that  every  attempt  to  amalgamate  these  races, 
had  been  attended  with  the  curse  of  God.  He 
denied  the  position  of  the  gentleman  from  Essex, 
that  the  commingling  of  blood  and  breeds,  impro- 
ved a  race,  as  it  did  cattle.  He  would  not  say 
that  it  was  not  better  for  a  man  to  improve  his 
breed  by  commingling  his  blood  with  theirs,  than 
not  to  improve  his  breed  at  all.  The  gentleman 
had  better  try  it,  legitimately  or  illegitimately. 
[Laughter.]  Better  try  the  experiment  on  that 
race,  than  not  at  all.  [Renewed  laughter.] 
There  was  no  such  thing  as  their  mingling  with 
us  on  terms  of  equality,  unless  their  blood  was 
mingled  with  ours  in  marriage — and  if  there  was 
any  obstacle  to  that,  in  the  prejudices,  (if  they 
were  such,)  of  society,  that  would  be  a  fatal  ob- 
stacle to  any  peace.  We  should  have  nothing 
but  the  perpetual  turmoil  which  always  existed 
when  there  were  two  races  in  the  same  country, 
antagonist  to  each  other.  One  or  the  other  must 
govern,  and  the  struggle  for  superiority  had  kept 
all  countries,  vrhere  two  such  races  existed,  in 
constant  turmoil  and  revolution.  Mr.  P.  was 
going  on  to  allude  to  the  history  of  the  Jewish 
nation  when  his  time  expired.  [Cries  of  "goon."] 

The  PRESIDENT  asked  if  there  were  any  ob- 
jections to  the  gentleman's  proceeding  ? 

Mr.  BRUCE  objected. 

Mr.  DANA,  in  allusion  to  the  bible  argument 
of  the  gentleman  from  St.  Lawrence,  said  he  was 
not  aware  that  any  thing  was  to  be  found  in  the 
account  of  the  building  of  Babel  against  the  right 
of  the  colored  man  to  vote.  And  before  he  could 
be  convinced  of  that,  he  must  have  chapter  and 
verse. 

Mr.  HARRISON  said  he  could  refer  the  gen- 
tleman to  a  passage  which  had  a  strong  bearing 
on  this  subject.  He  referred  him  and  the  gentle- 


man from  Delaware  particularly,  to  Noah  and  his 
aon  Ham,  and  his  grandson  Canaan,  and  asked  to 
whom,  if  not  t^«  that  race,  did  the  denunciation 
so  emphatically  made,  apply,  "  cursed  be  Ca- 
nsan ;  a  servant  of  servants  shall  he  be  to  his 
brethren."  Had  there  ever  been  any  revocation  of 
that  sentence  ? 

Mr.  DANA  said  it  was  true,  that  after  Noah 
came  out  of  the  Ark,he  planted  a  vineyard  anc  got 
drunk  and  cursed  Canaan.  But  he  found  nothing 
about  voting  there— nothing  that  should  prevent 
our  colored  brethren,  born  and  brought  up  among 
us,  from  voting.  Well  might  the  colored  man 
say,  in  this  day  of  boasted  reform,  that  all  change 
was  not  reform. 

Mr.  PERKINS  asked  how  often  those  who  were 
advocating  this  measure  were  entitled  to  speak, 
and  others  denied  the  privilege  of  speaking  at  all? 

Mr.  DANA  had  not  spoken  on  this  amendment, 
nor  should  he  trouble  the  committee  much  lon- 
ger. [Cries  of  "  go  ahead,"  "  go  on."]  Mr.  D. 
went  on  to  say  that  in  '77,  during  the  revolution- 
ary struggle,  the  constitution  made  no  distinction 
between  the  colored  and  the  white  man  in  regard 
to  the  right  of  suffrage  ;  but  in '21,  a  three  years' 
residence  and  the  possession  of  a  freehold  to  the 
value  of  $250  was  required  of  the  colored  man, 
by  which  almost  the  entire  population  were  de- 
prived of  that  precious  right.  Only  1000  of  them 
voted  in  1845,  when  some  3000  of  them  were  tax- 
ed. But  now  the  proposition  was  to  exclude  them 
altogether.  This  was  reforming  backwards  into 
the  dark  ages. 

Mr.  SWACKHAMER  hoped  we  should  have 
no  more  long  speeches,  but  come  directly  to  a  vote. 
He  would  have  the  section  stand  as  we  had  adopt-* 
ed  it  thus  far,  and  that  we  should  retain  the  pro- 
visions of  the  old  constitution,  striking  out  the 
sixty  days'  citizenship,  and  leaving  out  the  pro- 
perty qualification ;  for  he  trusted  the  day  had 
gone  by  when  property  was  to  be  made  a  test  of 
qualification.  The  colored  race  were  either  en- 
titled to  vote  on  the  same  terms  with  the  whites, 
ur  not  at  all.  His  constituents  were  of  opinion 
that  the  colored  man  was  not  capable,  and  should 
not  have  the  right  to  vote  ;  and  howeter  strong 
his  sympathies  might  be  for  the  African  race,  he 
did  not  hesitate  to  express  that  opinion.  He 
should,  at  the  proper  lime,  move  to  strike  out  the 
sixty  days'  citizenship,  and  otherwise  to  amend  so 
as  to  restore  the  old  constitution. 

Mr.  STRONG  remarked  that  those  who  came 
here  highly  charged  with  abolition  speeches,  had 
had  an  opportunity  to  express  their  views,  and 
the  gentlemen  from  St.  Lawrence,  charged  with 
anti-abolition  speeches,  had  had  a  chance  to  ex- 
press themselves.  He  hoped  the  good  sense  of 
the  Convention  would  now  induce  them  to  take  a 
vote  at  once. 

Mr.  BURR  hoped,  in  the  position  in  which 
matters  stood,  that  the  question  would  be  submit- 
ted nakedly  to  the  people,  whether  colored  men 
should  have  the  right  of  suffrage  on  the  same 
terms  as  white  persons.  He  was  opposed  to  all 
property  qualification  whatever,  as  anti-republi- 
can and  preposterous.  He  should  therefore  vote 
against  it,  in  the  hope  that  the  distinct  question 
whether  the  colored  man  should  vote  on  the  same 
ertms  with  others,  would  be  submitted  to  the 
people. 


1035 


Mr.  TAGGART  moved  the  previous  question, 
on  the  section,  hut  there  was  no  second. 

Mr.  KENNEDY  moved  the  previous  question 
on  Mr.  SPENCER'S  motion  to  insert  $100,  instead 
of  $r250,  and  there  \vas  a  second,  &c. 

The  amendment  was  negatived,  as  follows: 

AYES— Messrs.  Archer,  Ayrault,  F.  F.  Backus,  H. 
Backus,  Baker,  Bruce,  Bull,  Candee,  Crooker,  Dana,  Dan- 
forth,  D odd,  Greene,  Hsrt,  Hawley,  Hoffman,  Hotchkiss, 
Hutchinson,  Kirkland,  L,oomis,  McNeil,  Marvin,  Maxwell, 
Nicholas,  Parish,  Patterson.  Penniman  Khoades,  Rich- 
mond, Shaver,  Simmons,  W.  H  Spencer,  Stow,  Strong, 
Taggart,  Tallmadge,  Van  Schoonhoven,  Warren,  Water- 
bury,  Willard,  Worden,  W.  B.  Wright— 4-2. 

NOES— Messrs.  Allen,  Bergen,  Bowdish,  Brown,  Brun- 
dage,  Burr,  D.  D.  Campbell,  Clark,  Coiiely,  Cook,  Cornell, 
Cuddeback,  Dorlon,  Dubois,  Harrison,  Hunt,  A.  Hunting- 
ton,  Jones,  Kembie,  Kennedy,  Kernan,  Kingsley,  Mann, 
Morris,  Munro,  Nellis,  Nicoll,  O'Conor,  Perkins,  Porter, 
President,  Riker,  Ruggles.  St.  John,  Santbrd,  Shaw,  Shel- 
don, E.  Sprncer,  Stancon,  Stephens,  Swackhamer,  Taft,  J. 
J.Taylor,  Tilden,  Townsend,  Tuthill,  Wood,  A.  Wright, 
Yawger,  Youngs— 50. 

Mr.  KENNEDY  moved  to  amend  the  amend- 
ment of  Mr.  KIRKLA.ND  by  striking  out  the  words 
*'  of  color, ''  where  it  last  occurs,  and  insert  "  not 
entitled  to  the  elective  franchise  ;"  and  to  strike 
out  all  after  "taxation." 

Mr  KIRKLAND  remarked  that  this,  in  effect, 
would  exempt  from  taxation  all  not  entitled  to 
vote — including  all  females,  aliens,  &c.,  no  mat- 
ter how  much  property  they  might  have.  His 
own  amendment  was  an  exact  transcript  of  the 
existing  constitution. 

Mr.  KENNEDY  wished  to  show  the  injustice 
of  giving  special  privileges  to  one  class  which 
were  not  enjoyed  by  another. 

Mr.  PATTERSON  said  there  were  certain  cor. 
porations  \vh<ch  were  called  "persons,"  that  would 
be  exen.pted  from  taxation  by  this  amendment — 
as  would  also  the  property  of  deceased  persons, 
whose  heirs  were  minors. 

Mr.  KENNEDY  modified  his  motion,  by  insert- 
ing the  word  "  natural"  before  "  persons  " 

Mr.  SIMMONS  spoke  of  the  proposition  of  Mr. 
KIRKLAND  as  a  test  of  the  question  whether  we 
would  politically  enslave  a  portion  of  our  citi. 
zens,  by  depriving  them  of  the  little  shadow  of 
political  power  they  now  had,  or  leave  them  with 
that  small  voice  in  the  government.  Political  sla- 
very was  but  one  remove  from  civil  slavery.  He 
should  regard  all  those  who  voted  to  deprive  the 
colored  man  of  the  political  rights  he  now  had, as 
a  friend  of  slavery;  and  if  gentlemen  were  dis- 
posed to  go  that  length,  and  this  course  should  ul- 
timately  result  in  insunection,  he  hoped  they 
would  not  call  on  him  or  his  county  for  aid — for 
they  might  find  us  (said  he)  on  the  wrong  side  of 
the  question. 

Mr.  NICHOLAS  said  this  great  work  of  revis 
ion  had  been,  in  his  opinion,  in  the  main,  well 
done,  and  he  was  desirous  to  bring  it  to  a  close 
under  such  circumstances  as  would  not  jeopardize 
its  adoption  by  the  people.  It  was  well  known 
fhat  there  existed  much  diversity  of  opinion  and 
great  sensitiveness  on  the  question  of  general  suf- 
trage  as  applied  to  the  colored  people.  Knowing 
this  to  be  the  case  in  his  section  of  the  state,  he 
deemed  it  his  duty,  whatever  might  be  his  indi- 
vidual views,  to  make  a  spcial  submission  of  this 
question  to  the  people,  and  at  the  same  time  he 
would  reserve  for  this  unfortunate  class  of  people, 
who  were  certainly  entitled  to  our  commisseration, 


the  qualified  right  of  suffrage  which  they  now  pos- 
sessed. It  had  been  said  here  that  the  colored  peo- 
ple themselves  did  not  desire  a  continuance  of  this 
freehold  qualification.  He  had  reason  to  believe 
that  those  of  them  who  enjoyed  the  right,  fully 
appreciated  its  value,  and  although  they  wished 
it  to  be  extended  to  their  brethren,  they  would 
abhor  the  idea  of  their  own  disfranchisement. — 
The  aversion  to  extending  this  right  of  suffrage, 
arose  from  a  common,  and,  as  he  believed,  an  er- 
roneous impression,  that  these  depressed  people 
were  not  generally  competent  to  become  intelli- 
gent voters.  He  supposed  this  must  have  been 
a  prevailing  opinion  in  the  Convention  of  1821, 
and  that  the  freehold  qualification  was  adopted, 
so  that  the  colored  man  who  by  his  industry,  fru- 
gality and  good  conduct  became  the  owner  of  a 
comfortable  tenement,  might  give  evidence  of  his 
ability  to  become  an  intelligent  judge  of  the  wants 
of  the  country  and  of  the  qualifications  of  candi- 
dates for  his  suffrages.  He  trusted  the  Conven- 
tion would  continue  this  small  privilege  to  these 
unfortunate  fellow  creatures.  It  was  true  it  had 
been  enjoyed  by  a  very  small  proportion  of  the 
aggregate  number  of  colored  people  in  the  state, 
but  it  might  hereafter,  should  the  people  decide 
against  a  general  suffrage,  be  an  incentive  to 
their  young  men,  by  their  good  conduct  and  in- 
dustrious habits,  to  emerge  from  their  present  ab- 
ject condition,  and  become  proprietors  and  voters, 
and  their  example  might  influence  others  to 
struggle  with  adversity  and  acquire  all  the  rights 
of  citizens. 

Mr.  WATERBURY  thought  the  views  of  the 
colored  people  were  misunderstood — as  it  seemed 
to  be  supposed  that  they  desired  to  have  the  right 
of  voting  on  the  same  footing  as  others,  or  not  at 
all.  Such  was  not  the  case,  as  he  was  advised ; 
they  preferred  to  vote  under  the  property  qualifi- 
cation rather  than  not  at  all;  and  hence,  though  op- 
posed to  this  property  qualification,  altogether,  he 
should  vote  to  retain  it,  believing  it  to  be  the  wish 
of  the  colored  people. 

Mr.  E.  SPENCER  said  he  had  misunderstood 
the  agents  of  the  colored  people  who  appeared 
before  the  standing  committee,  if  it  was  their 
wish  that  the  property  qualification  should  be  re- 
tained ;  and  from  information  he  had  obtained 
since,  he  was  inclined  to  think  he  had  misunder- 
stood them.  On  further  reflection,  therefore,  he 
felt  disposed  to  vote  for  the  amendment. 

Mr.  WORDEN  hoped  the  latter  part  of^  the 
proposition  proposed  to  be  amended  by  Mi*.  KEN- 
NEDY, would  be  withdrawn,  as  it  recognized  a 
wrong  principle ;  and  it  was  a  poor  salve  for  the 
wrong  you  did  to  this  race,  to  exempt  a  portion 
of  them  from  taxation  who  were  not,  benefited  by 
the  very  limited  franchise  you  accorded  to  an- 
other portion.  The  withdrawal  would  obviate 
the  lately  discovered  objections  to  the  clause  on 
the  ground  of  principle,  and  we  should  then  see 
who  was  for  extending  the  ««  area  of  freedom." 

Mr.  KIRKLAND  had  rather  the  gentleman 
would  move  to  strike  out. 

Mr.  WORDEN  could  not  do  it,  as  there  were 
two  amendments  pending. 

Mr.  CROOKER:  Stop  talking,  vote  down  the 
amendment  of  Mr.  KENNEDY,  and  then  you  can 
move  it. 

Mr.  KENNEDY'S  amendment  was  negatived,—* 


1036 


ayes  2,  noes  85.    (Ayes,  Messrs.  HUNT  and  KEN- 
NEDY.) 

The  question  recurring  on  Mr.  KIRKLAND'S 
amendment — 

Mr.  BURR  said  he  had  made  up  his  mind  to 
vote  against  this  ;  but  learning  that  the  colored 
people  would  regard  even  this  as  a  boon,  he 
sh6uld  vote  for  it. 

Mr.  HARRISON  sustained  it  at  some  length.— 
He  urged  that  the  exemptions  we  allowed  to  the 
blacks  were  a  full  equivalent  for  the  deprivation 
of  the  free  right  of  suffrage — that  all  attempts  by 
legislation  to  raise  them  to  a  social  equality 
with  us,  would  be  utterly  nugatory — that  they 
were  an  inferior  race  to  the  whites,  and  would 
always  remain  so — that  the  experiment  in  St. 
Domingo  had  proved  this  beyond  cavil — that  the 
African  in  his  original  home  had  never  improved, 
that  they  were  under  the  curse  to  which  he  had 
referred  before :  and  would  never  recover  from 
it.  He  believed  that  if  we  retained  the  present 
provisions  of  the  constitution,  we  should  do  all 
that  justice  or  policy  required  of  us  towards  the 
black  race. 

Mr.  JONES  moved  the  previous  question,  and 
there  was  a  second. 

The  amendment  was  agreed  to,  as  follows: — 

AYES— Messrs.  Allen,  Archer,  Ayrault,  F.  F.  Backus, 
H.  Backus,  Baker,  Bascoin,  Bergen,  Bowdish,  Bruce,  Bull, 
Burr,  R. Campbell  jr .,  Candee,  Cook,  (looker,  Dana,Dodd, 
Graham,  Greene,  Harrison. Hart,  HawJey,  Hcflman.Hotch- 
kiss,  E.  Huiumgton,  Hutchinson,  Kembie,  Reman,  Kings 
ley,  Kirkland,  Marvin.  Maxweil,  Miller,  Munro,  Nellis, 
Nicholas,  Parish,  Parterson,  Penniman,  Porter,  Hhoades, 
Kichmond,  Ruggles,  St.  John,  Shaver,  Simmons,  E.  Spen- 
cer, W-  H.  Spencer,  Stanton,  Stow.  Strong,  Taggart,  Tall- 
madge,  Tuthill,  Ward,  Warren,  Waterbury,  \Vorden,  A. 
Wright,  W.  B.  Wright,  Young— 63. 

NOES— Messrs.  Brown,  Brundage,  Clark,  Conely,  Cor- 
nell, Cuddeback,  Danforth,  Dor'on,  Dubois,  Hunt,  A. 
Huntington,  Jones,  Kennedy,  Mann,  McNiel,  Morris,  Ni- 
coll,  O'Conor,  Perkins,  President,  Hiker,  Russell,  Sanford, 
Sheldon,  Stephens,  SwackliQmer,  J.  J.  Tajlor,  Tilden, 
Townsend,  Wood,  Yawger,  Youngs— 32. 

Mr.  CLARK  moved  to  amend  the  section  by 
striking  out  the  requirement  for  a  six  months  re- 
sidence in  the  county,  and  limiting  the  sixty  days 
residence  in  the  district,  to  thirty  days. 

Both  these  amendments  were  separately  nega- 
tived. 

Mr.  CROOKER  moved  to  strike  out  "  six 
months"  and  insert  "  two  months"  residence  in 
the  county.  He  illustrated  the  harsh  operation 
of  this  requisition  by  the  case  of  his  own  county, 
where  the  county  line  run  through  a  village,  and 
where  a  removal  from  one  side  of  a  street  to  the 
other  would  disqualify  a  voter. 

The  amendment  was  negatived. 

Mr.  SWACKHAMER  moved  to  amend  by  stri- 
king out  the  sixty  days  citizenship,  and  altering 
the  phraseology  of  the  section  as  follows : 

"  Shall  be  entitled  to  vote  at  such  election  in  the  elec- 
tion district  in  which  he  shall  actually  reside.and  not  else- 
where," &c. 

Mr.  JONES  said  this  would  make  the  section 
read  exactly  like  the  present  constitution,  and  he 
hoped  the  amendment  would  prevail.  He  could 
see  no  reason  why  a  person  who  had  become  a 
citizen,  after  five  years'  probation,  should  be 
compelled  to  wait  60  days  longer  before  he  could 
vote.  The  clause  was  aimed  at  naturalized  citi- 
zens, and  them  only,  and  he  confessed  to  his 
surprise  to  see  it  there. 


Mr.  PERKINS  also  opposed  the  60  days'  re- 
sidence in  the  district — saying  that  it  would  op- 
erate to  disfranchise  thousands  of  laboring  men, 
who  were  compelled  often  tp  change  their  resi- 
dence. 

Mr.  KENNEDY  explained  that  he  opposed 
this  60  day's  citizenship  in  committee,  as  aimed 
at  recently  made  citizens — and  he  hoped  it  would 
be  struck  out. 

Mr.  STRONG  thought  that  this  clause,  one  of 
the  most  wholesome  provisions  in  the  whole  sec- 
lion,  and  he  dwelt  at  some  length  on  the  struggle 
by  both  parties  to  get  foreigners  naturalized  on 
the  eve  of  an  election,  and  on  the  bad  effect  which 
this  struggle  had  upon  the  foreigner  himself,  in 
improperly  influencing  his  first  vote. 

Mr.  SHAVER  said  the  attention  of  the  com- 
mittee on  the  Elective  Franchise  had  been  brought 
to  this  subject  by  a  resolution  which  he  had  him- 
self  offered  at  an  early  stage  of  the  session.  And 
gentlemen  were  right  when  they  supposed  it  was 
aimed  against  foreigners,  and  for  the  purpose  of 
preventing  such  scenes  as  were  witnessed  just  be- 
fore every  exciting  election.  Men  who  were  poor, 
were  taken  by  partizans  on  the  day  before  the 
election,  or  even  the  same  day,  up  to"  the  courts, 
where  their  papers  were  made  out  free  of  ex- 
pense, and  they  hurried  to  the  polls  to  deposite 
their  votes.  He  had  no  objection  that  these  per- 
sons should  become  citizens  and  should  enjoy  the 
right  to  vote ;  but  there  was  abundant  opportuni- 
ty for  them  to  become  naturalized  at  other  times 
than  just  at  the  eve  of  an  election.  It  gave  rise 
now  to  the  charge  which  we  hear  so  often  itera- 
ted and  reiterated,  of  corruption  and  bargaining. 
These  charges  were  by  no  means  flattering  to  the 
foreigner  himself,  and  he  wished  to  relieve  them 
from  it.  They  should  not  desire  to  become  citi- 
zens merely  for  the  purpose  of  voting,  and  that  as 
a  reward  to  those  who  from  partizan  motives,  ob- 
tained their  papers  for  them  and  then  led  them 
to  the  polls.  He  hoped  the  section  would  be  al- 
lowed to  remain. 

Mr.  STRONG  followed  in  opposition  to  so  much 
of  the  amendmen  t  as  dispensed  with  the  sixty 
days'  residence  in  the  district — urging  that  that 
was  the  only  effectual  mode  of  breaking  up  colo- 
nization. 

Mr.  VAN  SCHOONHOVEN  supported  the  a- 
mendment.  He  did  not  see  why  the  legislature 
could  not  protect  the  ballot-boxes  from  the  colo- 
nization frauds  which  were  so  loudly  complained 
of.  He  believed  they  could  do  so ;  and  with  the 
co-operation  of  the  guardians  of  the  franchise, 
could  do  so  effectually. 

Mr.  BROWN  opposed  the  sixty  days'  citizen- 
ship, or  one  moment  longer  citizenship  than  the 
law  of  Congress  required  for  naturalization.  It 
was  in  restraint  of  the  exercise  of  the  franchise, 
and  as  such  he  protested  against  it.  He  opposed 
also  the  sixty  days'  residence  in  the  district,  as  a 
provision  which  must  result  in  disfranchising 
thousands  of  laboring  men,  who  were  obliged  to 
change  their  residence  often,  to  obtain  employ- 
ment. He  trusted  the  provision  of  the  old  con- 
stitution in  regard  to  residence  in  the  county,  and 
actual  residence  in  the  district,  at  the  time  of  the 
election,  would  remain  as  it  was. 

Mr.  PERKINS  opposed  the  sixty  days'  resi- 
dence in  the  district,  on  the  grounds  taken  by 


1037 


Mr.  BROWN,  that  it  would  deprive  a  large  class 
of  voters,  laboring  men,  of  their  right  to  vote. 

Mr.  NICOLL  said  there  were  at  least  15,000 
removals  in  the  city  of.  New- York,  in  a  single 
year,  exclusive  of  those  whose  names  were  not  in 
the  directory — and  a  large  portion  of  the  laboring 
masses  must  necessarily  lose  their  votes  under 
this  sixty  day  rule  of  residence.  He  hoped  the 
proposition  of  Mr.  SWACKHAMER  would  be  a- 
dopted. 

Mr.  STOW  took  the  ground  that  we  could  not, 
in  framing  a  constitution,  regard  isolated  cases  of 
hardship.  All  we  could  do  was  to  lay  down  such 
general  rules  as  public  policy  and  general  good 
sense  seemed  to  require.  General  rules  must  be 
adopted,  however  stringently  they  might  ope- 
rate in  individual  cases  that  might  be  imagined. 
Even  the  rule  requiring  a  voter  to  be  21,  some- 
times operates  to  exclude  a  man  from  the  polls 
for  nearly  the  whole  year  after  he  attains  his  ma- 
jority. And  yet,  all  acquiesced  in  the  rule.  So 
with  the  requisition  of  sixty  days  citizenship. — 
If  it  was  believed  to  be  necessary  to  secure  the 
purity  of  the  franchise,  and  to  protect  the  for- 
eigner himself  from  the  undue  influences  which 
otherwise  would  be  brought  to  bear  upon  him,  in 
giving  his  first  vote,  we  ought  not  to  hesitate  in 
fixing  the  rule,  though  it  might  exclude  a  few 
persons  from  the  immediate  exercise  of  the  right 
of  voting.  He  also  urged  the  other  provision  of 
a  sixty  or  thirty  days'  residence  in  the  district,  as 
absolutely  necessary  to  the  protection  of  resident 
voters  from  being  overborne  by  importations  from 
abroad,  and  thus  making  the  purity  of  our  elec- 
tions a  by-word  and  reproach.  Better  deprive 
one  legal  wer  i.-f  his  right,  than  have  twenty  or 
thirty  others  deprived  of  theirs  by  imported 
votes. 

Mr.  BROWN  urged  in  reply  that  it  would  be 
unjust  to  visit  upon  a  voter,  whose  necessities, 
not  his  wishes,  compelled  him  to  change  his  resi- 
dence, the  penalty  which  we  sought  to  impose 
on  those  who  practiced  frauds. 

Mr.  NICOLL  remarked  that  the  greater  num- 
ber of  removals  in  New  York  took  place  in  May. 
In  June  following,  there  was  a  school  election, 
at  which,  under  this  provision,  thousands  might 
be  disfranchised. 

Mr.  STOW  said  it  would  be  an  easy  matter 
to  obviate  that  by  changing  the  time  of  the  elec- 
tion. 

Mr.  NICOLL  rejoined  that  it  was  as  easy  a 
matter  to  change  the  general  election  from  No- 
vember to  June. 

Mr.  BAKER  followed  in  support  of  the  sixty 
days  citizenship  and  residence. 

Mr.  MORRIS  remarked  that  the  wards  in  New 
York  were  divided  into  rive  or  six  election  dis- 
tricts, in  each  of  which,  in  the  same  ward,  the 
electors  voted  for  precisely  the  same  persons,  ex- 
cept inspectors  ;  now  und'er  this  sixty  day  lule, 
a  man  who  moved  from  one  district  to  another  in 
the  same  ward,  within  these  sixty  days  of  an 
election  would  be  disfranchised  !  Was  that  in- 
tended ?  Could  there  be  any  fraudulent  design 
reached  by  >uch  a  prohibition,  where  the  voter, 
after  removal,  actually  voted  for  the  same  persons 
that  he  would  have  voted  for,  had  he  remained 
where  he  was  before  ? 

Mr.   RUGGLES   moved   to  amend  the   latter 


clause  of  the   original  section  so   that   it  would 
read  thus  : — 

11  Shall  be  entitled  to  vote  at  such  election  in  tho  town 
or  ward  in  which  lie  shall  have  been  a  resident  during  the 
last  sixty  days,  and  in  the  election  «tistnct  where  IK-  shall 
reside  at  the  time  of  the  election,  and  not  eisewhere."  &c. 

Mr.  BROWN  said  this  was  an  improvement  on 
the  section,  as  it  required  the  sixty  days  residence 
to  be  in  the  town  or  ward,  instead  of  the  district. 
Still  he  preferred  the  old  rule,  one  year  in  the 
state,  six  months  in  the  county,  and  actual  resi- 
dence in  the  district  at  the  time  of  the  election 

Mr.  SWACKHAMER  urged  his  amendment, 
and  an  adherence  to  the  provisions  of  the  present 
constitution  in  regard  to  suffrage — insisting  that 
the  public  would  frown  down  any  attempt  to  re- 
strict or  hamper  the  exercise  of  that  sacred  right. 
He  repelled  also  the  idea  that  these  restrictions 
were  necessary  in  regard  to  naturalization,  for  he 
had  no  faith  in  the  allegations,  so  frequently 
made,  of  fraud  in  the  granting  of  naturalization 
papers. 

Mr.  RICHMOND  had  as  much  faith  as  the  gen- 
tleman from  Kings  had  in  the  honesty  of  these 
naturalized  foreigners.  But  he  regarded  this 
sixty  day's  citizenship  as  aimed  not  at  them,  but 
at  the  political  rogues  and  rascals  that  deceived 
them,  and  often  got  them  into  difficulty. 

Mr.  RUGGLES  said  his  impressions  were  in 
favor  of  retaining  this  sixty  days'  citizenship. — 
He  supposed  it  would  exclude  very  few  natural- 
ized persons  ;  and  it  would  put  an  end  to  the 
frauds,  if  any,  of  which  we  always  heard  so  much 
after  a  contested  election,  in  the  presses  of 
both  parties  in  the  city  of  New- York  and  else- 
where. But  he  was  not  so  tenacious  of  that 
provision  as  of  the  sixty  days'  residence  in  the 
town  or  ward.  If  the  half  that  was  charged  on 
one  side,  and  not  denied  on  the  other,  in  regard 
to  colonization  frauds  in  the  great  cities,  was 
true,  some  such  provision  as  this  was  absolutely 
necessary  to  secure  the  purity  of  our  elections. — 
And  if  its  eflect  would  be  to  exclude  one  legal 
vote,  it  would  for  every  such  vote,  exclude  per- 
haps ten  illegal  votes.  Still,  if  gentlemen  from 
the  cities  would  say  that  there  was  no  foundation 
for  these  charges  of  colonization  and  fraud,  so  of- 
ten reiterated  after  an  election,  then  certainly  we 
ought  to  hesitate  before  we  adopt  it. 

Mr.  MARVIN  followed  in  support  of  the  sixty 
days'  citizenship,  at  some  length. 

Mr.  T1LDEN  then  obtained  the  floor,  but  gave 
way  for  a  motion  to  adjourn. 

Adjourned  to  half-past  eight  to-morrow  morn- 
ing. 

FRIDAY,  (104th  day,)  Oct.  2. 

Prayer  by  Rev.  Dr.  CAMPBKLL. 

The  PRESIDENT  presented  the  remonstrance 
of  the  Canajoharie  Academy  against  the  proposed 
diversion  of  (he  literature  fund.  ReU-rred. 

Also,  of  the  Kingston  Academy.     Referred. 
THE  LATERAL   CANALS. 

Mr.  MAXWELL  ottered  the  following  section, 
and  moved  its  reference  to  the  committee  on  revi- 
sion, with  instructions  to  incorporate  it  in  the  ar- 
ticle on  the  debts  of  the  State  : — 

§4.  Whenever  the  North  Branch  Canal  of  the  State  of 
Pennsylvania  shall  be  completed  to  the  N.  Y  State  line, 
then  a  portion  of  the  said  remainder  of  the  revenues  of  the 


1038 


said  canals  may,  in  each  fiscal  year,  be  applied  in  such 
manner  as  the  Legislature  shall  direct,  to  the  extension 
of  the  Chemung  canals  to  the  Pennsylvania  State  line,  at 
the  termination  of  said  North  Branch  Canal. 

Messrs.  J.  J.  TAYLOR  and  MARVIN  advoca- 
ted the  motion. 

Messrs.  MORRIS,  RICHMOND  and  BURR  op- 
posed it. 

Mr.  COOK  moved  to  amend  by  including  the 
Sacandaga  canal  and  the  Slack  Water  navigation 
connected  therewith.  If  there  was  to  be  a^ene- 
ral  scramble,  he  did  not  know  why  Saratoga  coun- 
ty should  noi  come  in  for  a  share. 

Mr.  BERGEN  moved  the  previous  question,  and 
there  was  a  second. 

The  amendment  of  Mr.  COOK  was  lost. 

The  original  motion  was  also   negatived — ayes, 
23,  noes  66. 
FUTURE  AMENDMENTS  TO  THE  CONSTITUTION. 

Mr.  MARVIN  moved  that  the  committee  on  re- 
vision be  instructed  to  incorporate  in  the  Consti- 
tution his  article  upon  future  amendments  and  re- 
visions of  the  Constitution. 

Mr.  O'CONOR  moved  to  amend  by  striking  out 
"two-thirds,"  and  inserting  "a  majority,"  so  that 
when  an  amendment  received  the  assent  of  a  ma- 
jority of  the  second  Legislature  acting  upon  it,  it 
should  be  adopted.  If  the  two-third  principle  was 
preserved  in  this  relation,  it  should  be  in  the  Le- 
gislature which  originated  the  amendment.  In 
the  second  case,  the  members  came  especially  in- 
structed from  the  people. 

Mr.  BASCOM  hoped  we  should  adopt  the 
amendment,  and  thus  avoid  placing  ourselves 
again  in  the  power  of  a  factious  and  interested 
minority. 

Mr.  PATTERSON  moved  to  strike  out  the  pro- 
vision  which  made  it  necessary  that  the  question 
of  '«  Convention,  or  No  Convention,"  should  be 
submitted  to  the  people  once  in  every  20  years. — 
He  thought  the  Legislature  should  have  discre- 
tion in  this  respect.  He  would  he  soriy  to  see 
this  question  agitated  every  20  years. 

Mr.  MARVIN  opposed  both  the  proposed 
amendments.  The  second  proposition  in  the  ar- 
ticle was  intended  to  give  the  people  an  opportu- 
nity to  endorse  their  Constitution  once  in  every 
20  years,  if  they  were  satisfied  with  it;  and  if 
they  were  not,  they  might  have  it  revised  and 
amended,  by  calling  a  Convention. 

Mr.  HOFFMAN  opposed  the  amendment  of 
Mr.  O'CONOR,  which,  he  said,  would  only  make 
it  more  easy  for  the  legislature  to  increase  its  own 
powers.  He  approved  the  second  clause  ot  the 
article. 

Mr.  MORRIS  sustained  the  amendment  of  Mr. 

O'CONOR. 

Mr.  KIRKLAND  supported  the  view  taken  by 
Mr.  HOFFMAN.  The  great  evil  in  our  govern- 
ment was  excessive  legislation  and  excessive  con- 
stitution making.  He  had  confidence  in  the  le- 
gislature, and  believed  that  two-thirds  would 
obey  the  wishes  of  the  people. 

Mr.  PERKINS  advocated,  both  of  the  amend- 
ments proposed. 

Messrs.  LOOMIS,  SIMMONS  and  MARVIN 
continued  the  debate. 

Mr.  LOOMIS  moved  to  lay  the  whole  question 
on  the  table.  He  desired  to  amend  so  as  to  pro- 
vide against  having  an  amendment  go  through 
by  chance  one  year  and  by  rule  the  next. 


Mr.  ST.  JOHN  moved  the  previous  question, 
and  it  was  seconded. 

The  amendment  of  Mr.  O'CONOR  prevailed— 
ayes  50,  noes  43. 

Mr.  LOOMIS  moved  tq  amend  so  that  the 
amendment  passed  by  one  legislature  should  be 
submitted  to  that  chosen  at  the  next  general  elec- 
tion for  Senators. 

Mr.  LOOMIS  supported  his  motion,  and  Mr. 
WORDEN  opposed  it. 

Mr.  SIMMONS  was  so  sick  of  fifteen  minute 
discussions,  and  the  screws  of  the  previous  ques- 
tion, that  he  was  quite  in  favor  of  the  proposition 
to  have  amendments  considered  two  years.  — 
There  should  be  some  mode  of  giving  vent  to  the 
prevailing  mania  for  Constitution  making. 

The  amendment  of  Mr.  LOOMIS  was  agreed  to, 
75  to  25. 

Mr.  MARVIN  was  permitted  to  amend  the  2d 
section  verbally. 

Mr.  CROCKER  moved  to  strike  out  the  whole 
of  the  2d  section,  providing  for  calling  future 
Conventions. 

Mr.  PATTERSON'S  amendment  was  first  in  or- 
der, and  upon  taking  the  question,  it  was  nega- 
tived, without  a  division. 

Mr.  CROCKER  advocated  his  motion  to  strike 
out  the  whole. 

Mr.  MARVIN  opposed  it. 

Mr.  RUSSELL  moved  to  amend  by  striking  out 
the  permission  to  the  legislature  to  call  a  Conven- 
tion within  the  20  years,  if  they  deemed  it  prop- 
er. Lost,  22  to  68. 

Mr.  BERGEN  moved  the  P.Q.  upon  Mr.CRooit- 
ER'S  section  and  it  was  seconded. 

The  Convention  refused  to  strike  out,  5  to  89. 

Mr.  RUGGLES  proposed  an  additional  section 
providing  that  the  next  Convention  should  be 
composed  of  two  distinct  and  separate  bodies  of 
men,  sitting  in  different  chambers,  without  whose 
concurrent  assent  no  amendment  should  be  valid. 
Their  organization  to  be  provided  for  by  law.  — 
Negatived  29  to  65. 

Mr.  J.  YOUNGS  moved  the  previous  question 
on  the  original  resolution,  and  it  was  agreed  to 
without  a  division. 

RIGHTS  OF  MARRIED  WOMEN. 

Mr.  HARRIS  moved  instructions  to  the  com- 
mittee No.  7  to  report  the  following  section  of 
Mr.  TALLMADGE'S  report  :  — 

§  14.  All  property  of  the  wife,  owned  by  her  at  the  time 

her  marriage,  and  that  acquired  by  her  afterwards,  by 
ft,  devise  or  descent,  or  otherwise  than  from  her  hus- 


of her  marriage,  and  that  acquired  by  her  afterwards,  by 
gift,  devise  or  descent,  or  otherwise  than  from  her  hus- 
band, shall  be  her  separate  property.  Laws  shall  be  pass- 


ed providing  for  the  registry  of  the  wife's  separate  proper- 
ty, and  more  clearly  denning  the  rights  of  the  wife  thereto; 
as  well  as  to  property  held  by  her  with  her  husband. 

Mr.  O'CONOR  hoped,  little  time  as  they  had 
left  —  that  the  Convention  would  not  adjourn 
without  acting  on  the  very  important  report  of 
Mr.  TALLMADGE,  relative  to  the  rights  of  man. 
The  section  now  proposed  by  the  gentleman  from 
Albany  was  contained  in  that  report,  and  could 
be  more  fully  discussed  when  the  whole  report 
was  under  consideration  than  at  present.  His 
opinions  on  this  subject  was  widely  different  from 
that  expressed  by  the  gentleman  from  Albany.  — 
He  believed  such  a  law  as  that  proposed  would 
tend  greatly  to  impair  domestic  harmony.  He 
moved  to  lay  the  resolution  upon  the  table. 

Mr.  HUTCHINSON  moved  the  previous  ques- 


1039 


tion  on  the  resolution,  but  the  Convention  refused 
to  second  :  ayes  21,  noes  59. 

Mr.  BASCOM  moved  to  substitute  the  follow- 
ing section  for  that  proposed  by  Mr.  HARRIS  : — 

^  4.  The  contract  of  marriage  shall  not  be  held  to  vest  in 
cither  of  the  contracting  parties  the  property  of  the  other, 
or  to  create  a  liability  upon  either  to  discharge  the  debts 
or  obligations  ol  the  other. 

Mr  BASCOM  said  that  the  wrongs  which  the 
proposition  of  the  gentleman  from  Albany  sought 
to  cure,  arose  from  a  violent  construction  that  the 
law  put  upon  the  marriage  contract,  making  it  en- 
tirely different  and  more  comprehensive  than  the 
contract  itself.  The  laws,  not  the  marriage  con- 
tract, vested  the  property  of  the  wife  in  the  hus- 
band, and  all  that  was  required  was  that  the  mar- 
riage contract  should  be  what  the  parties  agree 
that  it  should  be.  If  a  man  now  wants  a  wife,  he 
has  to  bargain  for  her;  adopt  this  amend.nent,  and 
if  he  wants  her  property,  he  will  have  to  bargain 
for  that  too.  The  reason  for  the  violent  construc- 
tion that  the  law  puts  upon  the  marriage  contract, 
by  which  the  property  of  the  wife  is  vested  in  the 
husband,  is  founded  upon  the  liability  of  the  hus- 
band to  pay  her  debts  contracted  before  marriage, 
because  in  one  case  in  a  thousand  a  man  incurs 
liability  to  pay  debts  of  his  wife.  Nine  hundred 
and  ninety-nine  men,  more  fortunate  in  their  mar- 
riage, shall  have  the  whole  property  of  their 
wives.  The  amendment  aims  to  secure  the  rights 
of  men,  too,  by  relieving  them  from  this  con- 
structive liability. 

Mr.  SWACKHAMER  said  that  a  sense  of  duty 
had  induced  him  to  bring  to  the  notice  of  the 
Convention,  the  important  question  under  discus- 
sion, atanearb  stage  of  their  deliberation.  That 
the  proposition  vvould  be  resisted,  was  anticipat- 
ed by  him  It  had  always  been  the  case  from  the 
earliest  ages  to  the  present  day,  and  unless  the 
nature  of  man  should  be  changed,  it  would  con- 
tinue so  until  the  end  of  time.  In  every  period 
of  the  world  in  which  the  light  of  science  had 
appeared,  it  was  resisted  because  it  came  in  con- 
tact with  the  selfishnes  and  established  habits  of 
man.  Truth  is  immutable  as  the  laws  of  Heav- 
en, and  clothed  with  the  robe  of  Divine  law,  had 
found  a  most  formidable  enemy  in  ignorance,  su- 
perstition and  selfishness.  When  the  star  of 
hope  appeared  in  the  east,  and  "peace  and  good 
•will"  was  proclaimed  to  man,  it  was  rejected  by  a 
foolish  'King  and  his  selfish  counsellors,  who  ig- 
norantly  supposed  that  they  could  extinguish 
light  and  retard  the  progress  of  truth,  by  causing 
the  mothers  of  Judea  to  rnourn  over  the  loss  of 
their  infant  children.  If  the  sordid  disposition 
of  man  had  impelled  him  to  resist  a  cause,  upon 
the  success  of  which  depended  the  destiny  of  the 
human  race,  how  much  more  reason  was  there 
to  expect  that  he  would  reject  reforms  like  that 
before  the  Convention.  He  knew  the  objections 
urged  against  the  protection  of  the  rights  and 
property  of  married  women,  and  he  thought  it 
would  be  as  well  to  meet  them  then  and  there, 
for  fear  another  opportunity  might  not  occur  du- 
ring the  session.  He  felt  confident  that  a  glance 
at  the  history  of  man,  would  satisfy  every  gentle- 
man, that  the  neglect  and  oppression  of  females 
was  a  sure  evidence  of  an  absence  of  civilization 
and  Christianity.  Thus  it  was,  that  amongst  sav- 
ages, women  were  treated  as  mere  animals  with- 


out souls,  created  only  to  be  used  and  abused  by 
man,  and  when  his  foul  spirit  left  the  body,her's 
was  buried  alive  with  his.  But  perhaps  this  cus- 
tom would  find  an  apology  in  the  same  reasons 
used  to  justify  the  generous  practice  of  depriving 
the  wife  of  her  property  and  other  rights,  which 
was  that  the  "two  were  one."  Polygamy,  and 
the  desertion  of  the  wife  at  the  option  of  the 
master,  were  but  one  state  further  from  the  low- 
est state  of  barbarity.  Corporeal  punishment  of 
the  wife  evinced  a  very  low  state  of  society  also, 
and  he  apprehended  that  the  ladies  would  be  sur- 
prised to  learn  that  their  "lords"  still  possessed 
the  right,  under  the  "common  law,"  to  chastise 
them  occasionally,  if  they  did  not  behave  pretty 
well,  and  obey  with  becoming  servility.  True 
the  courts  "no  longer  recognized  this  power  and' 
ancient  privilege  of  whipping,"  but  they  did  not 
deny  its  existence.  The  fact  was,  we  were  just 
emerging  from  a  system  of  feudalism,  oppressive 
to  woman  and  degrading  to  man.  It  could  not 
be  denied,  however  sad  the  commentary  on  the 
character  of  man,  that  he  had  yielded  more  readi- 
ly to  the  blandishments  and  vices  of  the  mistress, 

than  to  the  purity  and  tenderness  of  the   wife. 

The  matrons  of  Rome,  although  honored  for 
their  virtues  and  patriotism,  possessed  but  little 
in  the  republic,  until  the  introduction  of  voluptu- 
ousness and  corruption  at  the  termination  of  the 
punic  wars.  It  was  then  that  the  women  of  Rome 
took  a  position  in  society  before  unknown  to 
their  sex.  It  was  during  this  period  that  their 
oppressors  seemed  to  have  discovered  that  they 
had  souls,  and  that  they  possessed  intelligence 
and  power  ;  for  then  they  began  to  consult  them 
respecting,  matters  of  state,  and  admit  them  to 
the  councils  of  the  nation.  It  was  during  the 
polite  but  licentious  reign  of  Charles  the  Second 
too,  that  a  relaxation  of  severity  to  women  was 
effected.  Christianity  had  struggled  for  ages, 
and  philanthropy  plead  almost  in  vain  for  the 
melioration  of  the  condition  of  females  ;  and  his 
face  burned  with  shame  for  his  sex  at  the  thought 
that  so  little  had  been  accomplished,  and  that  from 
other  motives  and  considerations  than  a  sense  of 
moral  justice  or  a  desire  to  do  right. 

But  he  would  be  told  that  the  question  was  not 
what  had  been  the  past  condition  of  woman,  but 
what  was  their  present  situation.  To  this  he 
wouid  reply,  that  it  was  unfortunate  and  cruel. 
It  was  true  that  women  were  not  buried  alive  in 
this  free  country,  yet  when  they  entered  into 
what  is  usually  called  the  holy  bonds  of  matrimo- 
ny, they  become  dead  to  every  thing  but  the  hus- 
band, as  he  would  presently  show.  The  church 
too,  (or  some  branch  of  it,)  had  so  far  departed 
from  its  divine  prerogative  of  justice  and  mercy 
as  to  become  accessary  to  a  mercenary  and  un- 
christian practice.  He  did  not  remember  the 
ceremony  of  his  own  wedding,  except  that  each 
promised  to  be  true,  faithful  and  kind  to  the  oth- 
er ;  but  he  knew  that  the  conditions  were  recip- 
rocal, for  nothing  degrading  or  unjust  towards 
one  party,  would  have  met  the  approval  of  the 
other.  He  had,  however,  witnessed  the  adminis- 
tration of  that  solemn  ordinance,  where  the  bride 
was  required  to  say,  "  I  promise  to  love,  cherish 
and  obey  thee."  And  again,  "with  this  ring  I 
thee  wed,  and  with  all  my  worldly  goods  I  thee 
endow."  Love  and  benevolence  were  character- 


1040 


istic  of  woman,  and  breathed  the  lofty,  gentle  and 
confiding  spirit  of  her  sex.  But  to  make  servili- 
ty and  a  sacrifice  of  property,  a  condition  of  vir- 
tuous attachment  and  affectionate  regard,  was  in 
keeping  with  the  character  of  those  who  required 
it.  But  what  part  did  the  bridegroom  take  in  the 
performance  ?  Was  it  that  of  the  magnanimous 
and  brave  ?  Or  of  the  knavish  fortune  hunter  ? 
«c  I  take  thee  to  be  my  wedded  wife,  to  have  and 
to  hold  from  this  day  forward  "  was  the  modest 
promise,  and  generous  consideration  for  the  name, 
the  property  and  the  obedience  of  a  priceless 
bride.  It  was  not  necessary  to  say  who  wrote 
this  ceremony,  nor  on  what  authority  it  was  bas- 
ed, for  its  authorship  was  indicated  by  the  condi- 
tions imposed  on  one  of  the  parties  interested 
therein. 

It  was  not  customary  at  the  present  day  to  buy 
and  sell  wives  (on  this  side  of  the  water  at  least) 
in  the  public  markets,  with  halters  round  their 
necks,  but  they  were  sometimes  placed  in  a  situ- 
ation almost  as  unfortunate  by  what  was  termed 
the  "  marriage  contract,"  but  which  should  be 
called  woman's  transfer  of  property  and  sacrifice 
of  liberty — or  woman's  loss  and  man's  gain.  The 
moment  the  nuptials  are  tied,  her  bondage  was  as 
complete  as  that  of  the  southern  slave.  By  the 
marriage  the  man  became  entitled  to  the  rents,  in- 
come and  profits  of  his  wife's  land ;  and  if  he  sur- 
vive her,  paving  had  issue,  he  has  a  freehold  es- 
tate in  the  whole  during  life.  These  interests 
could  be  taken  for  his  debts,  or  disposed  of  in  any 
way  he  chose.  Her  household  estate  arid  personal 
property  became  absolutely  his,  and  her  chases  in 
action  he  acquired  a  right  to  assign  or  collect,  and 
if  recovered  during  marriage  the  avails  were  his. 
All  property  accruing  to  her  during  marriage  be- 
came his  also,  and  she  had  no  voice  in  adminis- 
tering it.  And  what  did  she  receive  in  return  for 
this  great  sacrifice  ?  If  she  happened  to  get  a 
good  husband,  she  might  secure  a  degree  ef  com- 
fort and  domestic'  happiness  to  be  found  only  in 
that  condition  of  life  so  peculiarly  favored  by  di- 
vine providence — if  not,  she  was  undone  forever ; 
there  was  no  retracing  her  steps ;  the  fiat  had 
gone  forth — "  What  God  hath  joined  together  let 
not  man  put  asunder."  She  and  her's  was  hence- 
forth the  property  of  the  husband;  and  if  by  his 
harsh  and  unkind  treatment  she  should  be  driven 
from  a  home  provided  by  her  own  money — there 
was  no  resting  place  on  earth  for  her,  like  the 
dove  which  went  from  the  window  of  the  ark,  her 
only  defence  was  in  the  air.  When  and  wherev- 
er found,  she  was  the  prisoner  of  her  master,  and 
bound  to  obey  his  command.  It  would  be  said 
that  the  law  protected  the  wife  from  the  inhuman 
treatment  of  the  husband.  So  did  it  also  protect 
animals,  in  the  same  manner  and  to  about  the 
same  extent.  The  idea  that  the  wife  would  ob- 
tain a  divorce,  was  a  very  silly  one  in  connection 
with  the  fact  that  she  was  deprived  of  every  dol- 
lar's worth  of  property,  and  perhaps  the  public 
cautioned  not  to  trust  her  by  an  advertisement  in 
some  public  newspaper.  Without  money,  justice 
was  not  easily  obtained,  and  law  suits  were  scarce. 
The  wife  could  not  be  a  witness  against  her  hus- 
band, and  if  he  wished  to  exercise  his  authority  as 
the  "  head  of  the  family,"  all  he  had  to  do  was  to 
use  the  "  rod  of  correction"  in  some  secluded 
place,  and  he  was  safe  from  any  interference  of 


the  law,  even  though  the  "  whip  was  larger  than 
the  judge's  finger."  The  laws  of  marriage  were 
not  only  unjust,  but  public  sentiment  was  equally 
so  towards  females.  If  from  inhuman  treatment 
and  the  faithlessness  of  her  husband,  the  wife  was 
driven  from  home,  she  and  her  children  were  en- 
titled to  "  food  and  clothing,"  if  any  one  would 
trust  them  and  take  chance  for  pay.  But  if  in  her 
extreme  destitution,  with  her  tender  offspring 
suffering  from  penury  and  disease,  she  should  in 
a  single  instance  violate  principles  of  morality, 
constantly  disregarded  by  the  husband,  she  was 
no  more  the  wife,  but  the  outcast  and  condemned 
— her  claim  to  protection  was  forever  forfeited 
and  her  restoration  to  society  denied.  Not  so  with 
the  husband  ;  he  could  spend  his  days  and  nights 
at  the  pot-house,  or  gambling  table — he  could  re- 
vel in  debauchery  and  infamy— perhaps  his  iusst 
were  fed  and  his  passions  gratified  by  the  poorly 
rewarded  toil  of  a  heart-broken  wife  and  despond- 
ing mother ;  yet  he  had  th«  right  to  command 
and  it  was  her  part  to  obey — his  right  to  her  was 
not  alienated,  nor  his  authority  denied.  How  re- 
peatedly did  it  occur  that  during  this  desertion  of 
the  husband,  the  mother  would  by  prudence, 
industry  and  constant  labor,  earn  and  collect  to- 
gether a  little  property  for  the  comfort  of  her  and 
his  children,  which  on  his  return  would  be  squan- 
dered by  him,  and  the  mother  and  children  again 
turned  out  doors  to  search  shelter  when  it  was 
not  to  be  found  ?  Nor  could  the  children  nor  their 
earnings  be  claimed  by  the  mother.  The  infant 
could  be  torn  from  her  bosom  by  the  authority  of 
the  husband.  How  cruel  and  unfeeling  was  man  ! 
It  was  not  enough  thai  this  portion  of  the  commu- 
nity should  be  excluded  from  the  halls  of  legisla- 
tion,—taxed  without  representation— despoiled 
of  iheir  property — deprived  of  an  equal  share  of 
education,  and  confined  to  the  menial  drudgery  of 
the  domestic — but  ties  stronger  than  life  must  be 
broken,  the  child  must  be  forced  from  its  mother's 
arms.  She  who  had  spent  the  flower  of  her  life 
in  watching  over  and  protecting  the  children  of 
her  love— who  by  the  bedside  had  lonely  guarded 
the  innocent  babe  while  its  tender  life  seemed  to 
ae  flickering  away  from  disease — who  knelt  at  the 
family  altar,  with  her  little  ones  by  her  side,  and 
then  first  taught  them  to  lisp  th.3  name  and  im- 
plore the  blessings  of  a  just  and  holy  Father — 
must  be  deprived  of  all  control  of  those  who  so 
much  need  the  maternal  tenderness  and  care,  to 
be  found  only  in  the  heavenly  purity  and  never- 
dying  love  of  a  virtuous  wife  and  an  affectionate 
mother. 

What  he  had  said  was  not  fiction,  it  was  truth 
and  reality — tor  the  wife  there  was  no  law  but 
that  of  injustice.  When  abused  or  ill  treated,  her 
only  defence  was  her  imploring  look,  her  flowing 
tears,  and  her  penetrating  sigh.  These  would  be 
sufficient  to  protect  her  against  wrong  from  a  luan 
who  possessed  a  heart  to  feel;  but  from  the  lor- 
tune-huntmg  villain,  who  married  the  money  and 
not  the  woman,  and  who  estimated  domestic  hap- 
piness and  female  virtue  by  the  amount  of  proper- 
ty secured  through  the  business  transaction,  there 
was  no  shield,  it  was  to  guard  against  cases  of 
ihat  kind,  that  tho  proposition  before  the  Conven- 
tion had  been  submitted,  and  not  to  build  up  se- 
parate interests  between  n?an  and  wile,  as  was 
falsely  charged.  The  man  who  would  not  show 


1041 


the  same  respect  and  affection  for  his  wife  with- 
out property,  as  he  would  with,  was  unworthy  the 
name  of  husband,  and  should  have  continued  in 
the  condition  of  life  occupied  by  some  members 
of  that  body,  who  were  so  strongly  opposed  to  the 
reform  sought  to  be  effected  by  constitutional  pro- 
vision. 

The  matrimonial  condition  in  this  country  was 
more  elevated,  refined  and  happy  than  that  of  any 
other  country;  but  this  was  owing  to  the  hallowed 
influence  of  religion,  morality  and  intelligence, 
and  was  attained  in  despite  of  a  false  and  barbar- 
ous system  transported  from  other  countries.  He 
wished  to  know  how  the  protection  of  the  wife  and 
mother,  to  the  property  justly  hers,  and  required 
to  sustain  herself  and  children,  could  operate  to 
the  injury  of  the  family  ?  If  the  husband  was  what 
he  should  be,  no  difficulty  could  occur;  but  if  not, 
much  evil  would  be  prevented.  The  husband 
that  would  spend  his  wife's  money  and  then  abuse 
her  because  she  refused  to  give  him  more,  was  but 
a  brute  in  man's  guise,  and  would,  it  he  had  the 
power,  deprive  her  ol  the  last  farthing,  and  then 
cast  her  off  for  not  finding  him  more. 

He  thought  that  the  argument  that  the  protec- 
tion  of  the  wife's  property,  would  stimulate  the 
husband  constantly  to  quarrel  with  her  in  order  to 
get  possession  of  it,  was  very  unfavorable  to  his 
sex.  Why  was  it  that  the  wife  never  quarrelled 
lor  the  property  of  her  husband,  or  rather  to  re- 
cover that  of  which  he  had  robbed  her  ?  There 
seemed  to  be  no  rear  of  this — no  interference  with 
the  solemn  rights  of  marriage  then.  No  disturb- 
ing domestic  happiness — no  wrangling — no  mis- 
chief flowing  from  such  a  state  of  things.  It  ap- 
peared to  him.  that  every  step  taken  in  opposition 
to  the  proposed  reform  involved  additional  absur- 
dity, and  detracted  from  the  character  of  the  male 
sex,  while  it  demonstrated  the  disinterested  kind- 
ness, and  inherent  tenderness  of  the  female  char- 
acter. In  regard  to  the  safety  of  the  property  and 
its  judicious  dispensation,  it  was  as  secure  in  the 
hands  of  the  wife,  as  it  was  in  the  husband's. — 
She  was  not  exposed  [o  the  same  temptations — was 
not  as  ambitious  of  worldly  distinction,  and  would 
not  be  likely  to  hazard  her  property  to  as  great 
an  extent  as  he  would.  Her  affection  (or  her  off- 
spring was  more  ardent,  and  her  attachment  to, 
and  inducements  for  remaining  at  home,  much 
stronger  than  his.  Indeed,  the  wile,  the  mother, 
was  a  safe  depository  for  the  comforts,  the  educa- 
tion and  the  happiness  ot  those  with  whose  destiny 
hers  was  so  interwoven  that  nothing  but  death 
could  separate  it. 

Nineteen  cases  out  of  every  twenty,  when  want 
has- found  its  way  in  families,  especially  those  who 
commenced  with  property,  it  was  through  the  mis- 
fortune or  the  bad  character  of  the  husband  ;  anc 
it  would  seem  but  just  that,  in  either  event 
protection  should  be  afforded  to  the  defenceless 
mother  and  children.  The  subterfuge  resorted  to 
by  the  enemies  of  this  measure,  reminded  him  o 
what  was  said  of  the  spirit  of  darkness,  who  when 
unsuccessful  in  seducing  the  good  from  the  path 
.  of  duty,  would  assume  the  garb  of  light,  and 
by  concealment  effect  through  deceit  what  he 
has  failed  to  do  under  his  recognized  character 
It  was  the  same  in  regard  to  the  attempt  to  excite 
prejudice  againet  this  proposition,  under  the  pre 
tence  that  it  would  interfere  with  the  institution 

105 


)f  marriage.  This  ordinance  originated  in  Divine 
aw,  and  was  as  far  above  human  laws  as  heaven 
,vas  above  the  earth.  When  the  Creator  pronoun- 
ced the  "twain  one  flesh,"  he  established  a  prin. 
ciple  of  equality  and  justice,  found  alone  in  the 
3urity  of  His  own  character.  There  were  no  hu- 
miliating conditions — no  oppression — no  injustice 
—no  selfishness — no  inequality  there.  But  man, 
or  sordid  and  mercenary  motives,  had  supplanted 
he  ordinance  of  God  by  substituting  conditions  sa 
derogatory  lo  the  character  of  woman,  as  it  was 
degrading  to  his  own. 

The  remarks  he  had  submitted  were  not  alone 
applicable  to  married  women — much  that  lie  had 
said  would  equally  apply  to  the  unmarried.  It 
was  not  his  intention  to  allude  to  the  civil  rights 
or  condition  of  single  females.  That  they  were 
taxed  without  representation,  all  knew.  That  the 
reward  for  their  labor  was  much  below  what  was 
received  by  males,  none  would  deny.  That  they 
were  spurned  from  society,  if  entangled  in  but  one 
of  the  thousand  snares  which  were  thiown  in  their 
rugged  and  unprotected  path  of  life,  was  too  pain, 
fully  true.  It  was  a  cruel  state  of  society  which 
looked  with  complacency  on  the  immorality  of 
males — permitting  them  to  associate  in  families 
that  were  called  the  first  class — when  it  would 
consign  to  endless  infamy  the  other  sex  for  the 
first  violation  of  that  standard  of  moral  rectitude 
which  should  govern  all.  The  education  and  re- 
finement of  females  had  been  neglected  by  those 
having  control  of  government,  who  appeared  to 
have  acted  under  the  belief  that  to  spell,  read  and 
write,  was  the  height  of  female  ambition  in  litera- 
ture. While  vast  sums  of  money  had  been  appro- 
priated for  the  higher  institutions  of  learning,  for 
the  education  and  refinement  of  young  men,  com- 
paratively nothing  had  been  done  for  the  instruc- 
tion and  embellishment  of  the  female  mind.  The 
whole  system  of  laws  relating  to  females,  so  com- 
pletely developed  the  selfishness  of  man,  that  it 
occasioned  unpleasant  emotions  when  reflecting 
upon  the  subject. 

That  females  were  mentally  and  morally  equal 
to  males,  he  hoped  would  not  be  denied  by  any 
one.  The  high  intellectual  attainments  and  bril- 
liant acquirements  offernale  authors,  were  kfiown 
to  all.  That  they  were  deprived  of  rights  and  pri- 
vileges to  which  they  were  justly  entitled,  he  had 
humbly  endeavored  to  show.  That  they  were  re- 
fused these  from  mercenary  considerations,  must 
be  manifest  to  every  mind.  But  he  sincerely  hoped 
that  those  who  resisted  the  salutary  reform  con- 
templated, would  soon  yield  to  the  light  of  truth, 
and  a  sense  of  justice. 

Mr.  BRUNDAGE  moved  to  substitute  the  fol- 
lowing in  place  of  Mr.  BASCOM'S  : 

"  The  property  of  married  women,  real  or  personal, 
which  bel  onged  to  her  before  marriage,  or  acquired  after- 
wards by  gift  or  devise  other  than  from  her  husband,  and 
the  avails  thereof,  shall  not  be  liable  in  any  wise  lor  the 
debts  of  the  husband." 

Mr.  TOWNSEND  wished  to  amend  by  striking 
out  the  last  clause  of  Mr.  HARRIS'  section  and 
inserting  the  following : 

$— .  No  ex  post  facto  laws,  either  civil  or  criminal,  shall 
be  passed;  nor  any  law  impairing  the  obligation  of  con- 
tract, or  the  statutory  remedy  existing  at  the  time  such  con- 
tract shall  be  made. 

Mr.  SIMMONS  read  the  following  substitute 
for  the  information  of  the  House : 


1042 


"  The  legislature  shall  provide  by  law  for  a  competent 
livelihood  to  be  secured  to  married  women  and  to  her  in- 
fant children  out  of  the  property  owned  by  her,  and  out  of 
the  use  of  one-third  other  husband's  real  property,  owned 
during  coverture." 

Mr.  PATTERSON  said  this  subject  had  been 
before  the  Legislature  for  many  years,  and  if  there 
was  any  desire  among  the  people  for  such  a  pro- 
vision, they  should  have  known  it.  He  also  con- 
tended that  this  separation  of  interest  and  division 
of  propeity  between  man  and  wife,  would  produce 
domeslic  trouble.  They  should  jointly  own  all, 
instead  of  having  separate  possessions;  but  if  a 
young  woman,  when  about  to  be  married,  was  ap- 
prehensive that  her  property  would  not  be  safe  in 
the  keeping  of  her  hu.sband,  she  might  vest,  it  in 
trustees  for  her  own  use.  This  however  should 
be  left  to  the  le^islalure. 

Mr.  SIMMONS  desired  to  have  some  provision 
which  should  secure  the  interesis  of  the  wife 
where  the  husband  wss  civilly  dead,  as  well  as  in 
case  of  his  physical  death.  It  was  however  better 
tole?ve  it  to  the  Legislature. 

Mr.  KIRKLAND  was  in  favor  of  Mr,  HARRIS' 
proposition.  He  enumerated  many  enormities 
which  had  been  inflicted  on  females  by  worthless 
husbands,  and  appealed  to  the  Convention  to  se- 
cure their  safety. 

Mr.  LOOMIS  said  this  was  a  subject  of  too  much 
difficulty  and  delicacy  to  be  put  in  so  permanent  a 
form  as  a  constitutional  provision. 

Mr.  HARRISON  appealed  to  the  good  sense 
and  intelligence  of  the  Convention  whether  at 
this  late  hour,  they  could  dispose  of  this  subject 
properly.  He  moved  to  postpone  it  to  the  1st  of 
December  next. 

Mr.  STOW  begged  of  gentlemen  not  to  dispose 
of  this  important  queston  with  so  much  haste, 
especially  not  to  make  it  a  constitutional  provi- 
sion, with  less  consideration  than  a  village  corpo- 
ration would  give  to  a  by-law.  He  moved  to  lay 
the  whole  subject  on  the  table. 

Mr.  MORRIS  called  for  the  yeas  and  nays,  and 
there  were  ayes  44,  noes  48. 

Mr.  DODD  moved  the  previous  question,  and 
there  was  a  second. 

Mr.  VAN  SCHOONHOVEN  called  for  the  yeas 
and  noes  on  the  question,  "shall  the  main  ques- 
tion be  now  put?"  and  there  were  ayes  51,  noes 
40. 

The  question  recurred  on  the  amendment  of 
Mr.  BRUNDAGE,  which  was  agreed  to,  ayes  50, 
woes  48. 

Mr.  BASCOM  gave  notice  of  a  motion  to  re- 
consider. 

The  question  then  recurred  on  striking  out 
and  inserting  the  amendment  of  Mr.  BASCOM,  as 
amended,  which  was  negatived,  ayes  37,  noes  59. 

The  question  was  then  taken  on  the  original 
provision,  which  was  carried,  ayes  58,  noes  44, 
as  follows  : — - 

AYES— Messrs.  Allen,  Archer,  F.  F.  Backus,  H.Backus, 
Baker,  Bascom,  Bowdish,  Burr,  R.  Campbell,  jr  ,  Candee, 
Chamberlain,  Clark,  Clyde,  Conely,Cook,  Crooker,  Dana, 
Dodd,  Dubois.  Greene,  Han  is,  Hart,  llotchkiss,  Hutchin- 
son  Kernan,  Kirklaud,  Mann,  McNitt,  Maxwell,  Miller, 
Morris,  Nellis,  Nicoll,  Parish,  Perkins,  Porte.r,  President, 
Hiker,  St.  John,  Salisbury,  Sranton,  Stephens,  Swackha- 
mer  Talimadge,  Tilden,  Townsend,  Van  Schoonhoven, 
Ward  Warren,  Waterbury,  White,  Willard,  Wood,  Wor- 
den,  A.Wright,  W.  B.  Wright,  Yawger,  Young— 68. 

NOES— Messrs.  Angel,  Ayrault.Bergen,  Brown.Bruce, 
Brtmdage,  Bull,  Cornell,  Cuddeback,  Danforth,  Dorlon, 


Graham,  Harrison,  Hawley,  Hunt,  A.  Huntington,  E. 
Huntington,  Jones,  Kemble,  Kennedy,  Kingsley,  Loomis, 
McNeil,  Marvin,  Munro,  Nicholas,  O'Conor,  Patterson, 
Penniman,  Rhoades,  Richmond,  Russell,  Shaver,  Shaw, 
Simmons,  E.  Spencer.  Stow,  Strong,  Tait  Taeeart,  J  J. 
Taylor,  Tuthill,  Witbeck,  Youngs— 44. 

Mr.  KENNEDY  moved  a  reconsideration  of  the 
vote  of  yesterday  on  the  amendment  of  the  first 
section  of  the  report  of  the  4th  standing  commit- 
tee, which  lies  over. 

Mr.  RHOADES  moved  the  reference  of  the  ar- 
ticle on  oaths  and  affirmations  to  the  committee 
on  revision,  to  be  incorporated  in  the  constitution. 
Agreed  to. 

Mr.  ST.  JOHN  made  a  like  motion  on  a  section 
providing  against  payments  to  public  officers  for 
services  not  rendered,  constructive  travelling, 
and  payments  for  two  offices  held  at  the  same 
time. 

Mr.  RICHMOND  called  for  the  ayes  and  nays. 

Mr.  HUNT  moved  to  strike  out  the  word  "con- 
structive." 

Mr.  MARVIN  said  if  the  people  thought  pro- 
per to  make  a  constable  a  deputy  sheriff,  they 
would  not  be  at  liberty  to  do  so  under  this 
provision.  He  moved  to  lay  this  order  of  busi- 
ness on  the  table.  Carried. 

Mr.  ANGEL  gave  notice  of  a  motion  to  recon- 
sider the  last  vote  taken  by  yeas  and  nays,  [on 
Mr.  HARRIS'  proposition.]  Table. 

FLECT1VE  FRANCHISE. 

The  Convention  proceeded  to  the  consideration 
of  the  report  of  committee  number  four. 

The  pending  amendment  was  on  Mr.  SWACK- 
HAMER'S  motion  to  strike  out  "a  citizen  for  six- 
ty days  and" — being  the  clause  in  the  18th  sec- 
tion requiring  sixty  days'  citizenship,  as  one  of 
the  qualifications  of  the  naturalized  elector. 

Messrs.  O'CONOR,  TILDEN,  RHOADES, 
HARRIS,  WATERBURY,  and  JONES,  discuss- 
ed the  amendment. 

Mr.  BERGEN  moved  the  previous  question, 
and  it  was  seconded. 

The  motion  to  strike  out  the  words  "  a  citizen 
for  sixty  days  and,"  was  lost*  ayes  48  noes  48,  as 
follows : — 

AYES-  Messrs.  Allen,  Bergen,  Bowdish,  Brown,  R. 
Campbell,  jr.,  Clark,  Clyde,  Conely,  Cornell,  Cuddebf  ck, 
Danforth,  Hart,  Hotchkiss,  Hunt,  A.  Hurrtington,  Hwtch- 
inson,  Jones,  Kennedy,  .Kingsley,  Mann,  McNeil,  Max- 
well, Morris,  Munro,  Nellis,  Nicoll,  O'Conor,  Perkins, 
President,  Riker,  Russell,  St.  John,  Sanford,  Shaw,  Ste- 
phens, Swackhamer,  Taft,  J.  J.  Taylor,  W.  Taylor,  Til- 
den,  Townsend,  Tmhill.Van  Schoonhoven,  Ward,  White, 
Willard,  Wood,  Youngs— 48. 

NOES— Messrs.  Archer,  Ayrault,  F.  F.  Backus,H.Back- 
us,  Baker,  Bascom,  Bull,  Burr,  Candee,  Coek,  Crooker, 
Dana,  Dodd,  Dorlon,  Dubois,  Forsyth,-  Graham,  Greene, 
Harris,  Harrison,  Hawley,  E.  Huntington,  Kirkland,  Mc- 
Nitt, Marvin,  Miller,  Nicholas,  Parish,  Patterson,  Penni- 
man, Rhoades,  Richmond.  Salisbury,  Shaver,  Simmons, 
E.  Spencer,  Stanton,  Stow,  Strong,  Taggart,  Talimadge, 
Warren,  Waterbury,  Worden,  A.  Wright,  W.  B.  Wright, 
Yawger,  Young— 48. 

The  Convention  then  took  a  recess. 


AFTERNOON  SESSION. 

Mr.  PERKINS  resumed  his  speech  of  yester- 
day on  the  extension  of  the  right  of  suffrage  to 
blacks.  He  ridiculed  what  he  called  the  extreme 
apprehension  in  certain  quarters  lest  a  class  of 
white  voters,  who  were  obliged  often  to  change 
their  residence*  should  commit  fraud*  upon  the 


1043 


ballot  boxes,  and  might  be  bought  and  sold — and 
the  great  anxiety  in  the  same  quarter  to  let  in  a 
class  of  colored  persons  whose  degradation  and 
vices  decreased  their  numbers  annually,  notwith- 
standing the  large  accession  from  other  states. — 
It  was  the  destiny  of  the  black  race  ever  to  occu- 
py an  inferior  social  position  to  the  white.  It 
was  the  latent  decree  of  the  Almighty,  and  noth- 
ing could  change  it.  Mr.  P.  laid  it  down  as  the 
economy  of  Providence  that  there  should  be  sep- 
arate races  and  grades  of  beings  on  the  earth. — 
He  asserted  that  the  great  offence  which  brought 
the  flood  on  the  earth  was  the  intercourse  be- 
tween the  sons  of  God  and  the  daughters  of  men, 
the  intercourse  of  one  race  with  another  that 
God  had  separated.  When  they  commmingled, 
he  separated  them  again.  A  century  after  the 
dispersion  at  Babel  profane  history  showed  that 
this  black  race  existed,  with  all  the  characteris- 
tics that  now  marked  them.  That  climate  should 
have  done  this  was  impossible.  This  mark 
was  on  them  as  a  warning  that  other  nations 
should  not  commingle  with  them.  Subsequent- 
ly, when  the  Jews  intermingled  with  other  nations 
it  was  called  whoredom,  and  was  denounced  by 
God.  You  could  not  admit  the  blacks  to  a  parti- 
cipation in  the  government  of  the  country,  unless 
you  put  them  on  terms  .of  social  equality  with  us 
• — and  that  could  only  be  done,  by  degrading  our 
own  race  to  a  level  with  them.  He  adverted  to 
Asia  Minor,  the  garden  of  the  world,  and  the 
three  nations  that  were  attempting  to  live  there — 
the  Jew,  the  Mahomedan  and  the  Christian — to 
the  constant  warfare  going  on  between  these  na- 
tions, to  the  decrease  in  population  which  was 
the  consequence.  He  adverted  also  to  Mexico, 
where  there  were  three  races  ;  with  something 
like  an  ec  aality  of  right,  and  yet  nothing  but  a 
standing  army  could  govern  them.  So  in  Eng- 
land, where  there  were  distinct  races,  nothing 
but  the  bayonet  kept  the  peace.  He  predicted 
that  in  the  city  ot  New  York,  negroes  would  ne- 
ver be  permitted  to  come  up  to  the  ballot  boxes, 
or  if  they  did  come,  it  would  be  only  to  be  bought 
and  sold  like  cattle  in  the  market.  Riots  and 
violence  would  be  the  order  of  the  day.  Mr.  P. 
closed  by  warning  the  Convention  against  adopt- 
ing a  provision  which  must  disfranchise  a  large 
class  of  white  voters — saying  that  they  would 
hear  from  it  at  the  polls  of  the  election,  as  well 
as  from  the  proposition  to  bring  in  the  whole  ne- 
gro race  at  the  polls. 

Mr.  DANA  replied,  remarking  that  he  should 
hardly  expect  to  successfully  oppose  the  learned 
and  Biblical  orator  who  had  preceded  him.  He 
could  not  however,  see  the  bearing  of  the  gentle- 
man's arguments  on  the  question,  as  to  the  right 
of  the  colored  man  to  vote.  The  question  was 
raised  during  his  speech,  whether  the  mark 
placed  upon  Cain  was  the  same  now  found  upon 
the  African  race.  And  whether  that  mark  was 
intended  for  protection  or  destruction.  Also 
whether  the  flood  was  not  brought  upon  the  earth 
by  reason  of  the  violence  of  men — of  one  man 
upon  his  fellow. 

Mr.  SIMMONS  understood  Madison  was  a  Bi- 
ble county.  If  the  black  skins  came  from  the 
mark  on  Cain,  he  asked  the  gentleman  whether 
it  was  put  on  for  their  protection  or  to  make 
slaves  of  them. 


Mr.  DANA  said  God  put  a  mark  on  him,  lest 
any  man  finding  him*  should  do  him  any  injury. 
3ut  it  seemed  now,  the  same  mark  on  a  man  ten- 
ded to  his  destruction. 

Mr.  CROOKER:  How  does  the  gentleman 
enow  it  is  the  same  mark  ? 

Mr.  DANA  replied  that  he  said  it  was  a  mark, 
tie  was  following  the  position  of  the  gentleman 
"rom  St.  Lawrence  who  called  it  the  mark. 

Mr.  PERKINS  said  his  remark  was  this,  that 
when  God  separated  Cain  from  the  rest,  and 
drove  him  out,  it  became  offensive  in  his  sight 
that  the  other  children  of  Adam  should  intermar- 
ry with  the  descendants  of  Cain.  He  supposed 
the  female  descendants  of  Cain  were  the  "daugh- 
ters of  men,"  spoken  of  in  the  chapter  preced- 
ing the  account  of  the  flood — which  was  brought 
on  the  earth  because  the  sons  of  God  inteunar- 
ried  with  them. 

Mr.  DANA  said  we  had  no  account  of  Cain's 
descendants  marrying  the  sons  of  God.  There 
was  no  account  of  any  other  son  or  daughter  of 
Adam,  at  the  time  when  Cain  received  the  mark. 
[A  voice — "You're  wrong  there."]  Mr.  D.  said 
he  was  not  wrong.  [Laughter.] 

Mr.  SIMMONS  :— What  was  the  cause  of  the 
flood  ?  Was  it  not  slavery  ? 

Mr.  DANA  : — The  wickedness  of  man. 

Mr.  SIMMONS:— The  violence  of  man.— 
[Laughter.]  My  bible  says  so. 

Mr.  DANA  said  the  subject  was  not  pursued  in 
a  manner  that  was  profitable,  and  he  would  de- 
sist from  any  further  remarks  now. 

Mr.  SHAVER  understood  the  gentleman  from 
Dutchess  was  willing  to  modify  his  amendment 
so  as  to  change  the  60  to  30  days. 

Mr.  RUGGLES  was  willing  to  put  it  at  that. 

Mr.  SHAVER  said  it  was  understood  that  the 
formation  of  this  Constitution  was  to  be  the  re- 
sult of  compromise — individual,  personal  and 
party  preferences  were  to  be  given  up.  Upoa 
this  principle  the  friends  of  the  provision  in  the 
section  were  willing  to  accede  some  portion  of 
their  first  position  . 

Mr.  TILDEN  said  that  those  who  opposed  the 
first  proposition  would  be  quite  as  unwilling  to 
vote  for  a  thirty  days'  residence. 

Mr.  SHAVER  proceeded  to  describe  the  opera- 
tion of  the  provision.  Gentlemen  object  to  this 
term  of  residence  in  a  town  or  ward,  while  they 
forget  that  a  much  larger  term  is  required  in  the 
county,  the  lines  of  which  are  much  longer.  He 
could  not  believe  that  removals  from  one  ward  to 
another  in  the  city  would  be  likely  to  deprive 
many  citizens  of  their  votes.  The  usual  time  of 
removals  aid  not  occur  within  sixty  days  of  any 
election.  His  only  desire  was  to  prevent  the 
great  amount  of  colonizing,  which  was  known 
to  be  carried  on  at  every  election,  and  the  bribery 
and  corruption  which  was  practised  openly  to  a 
great  extent.  It  was  a  principle  which  the  safe- 
ty of  the  several  counties  call  for,  and  he  hoped 
it  would  be  adopted. 

Mr.  11LDEN  insisted  that  the  remedy  was 
much  more  than  co-extensive  with  the  evil  in- 
tended to  be  reached — that  colonization  could  not 
be  the  object  of  a  removal  In.rn  one  dij-trict  to  an- 
other where  the  same  class  of  officers  were  to  be 
voted  for — and  that  in  the  cases  where  coloniza- 
tion might  be  the  object  ol  a  removal,  the  remedy 


1044 


went  to  the  length  of  disfranchisement  for  local 
or  state  officers. 

Mr.  BROWN  replied  that  the  six  months'  resi. 
dencein  the  county  had  been  heretofore  required, 
because  counties  were  the  smallest  subdivisions 
within  which  the  important  class  of  officers  were 
elected — such  as  sheriffs,  clerks,  &c.  By  the  same 
rule  now,  residence  in  the  assembly  district  should 
be  required  rather  than  in  the  towns  or  wards, 
and  then  the  elector  should  not  be  disfranchised 
from  voting  for  county,  or  district,  or  state  officers. 
And  after  all,  what  object  was  to  be  gained  by 
tiiis  that  might  not  be  attained  by  legislation  ? — 
Why  make  an  inflexible  rule  here  which  might  be 
found  to  work  harshly  ?  He  trusted  the  friends  of 
an  unrestricted  suffrage,  as  it  was  now  enjoyed, 
woyld  not  yield  an  inch  of  the  present  constitution; 
but  stand  by  it  firmly.  If  there  were  evils  to  be 
remedied  in  the  large  cities,  he  begged  gentlemen 
not  to  adopt  a  rule  which  would  afiect  injuriously 
the  rights  of  the  country. 

Mr.  RICHMOND  remarked  that  formerly  when 
town  meetings  were  held  on  different  days,  colo- 
nization was  as  rife  in  the  country  as  it  was  said 
to  be  in  the  city. 

Mr.  TILDEN  replied  that  it  was  no  reason  be- 
cause a  bad  man  moved  from  town  to  town  t&  help 
carry  it,  that  one  honest  man  moving  from  town 
to  town  from  necessity,  should  be  deprived  of  the 
right  of  voting  for  governor. 

Mr.  RICHMOND,  continued,  saying  that  colo- 
nization had  by  no  means  ceased  in  the  country 
since  town  meetings  were  held  on  the  same  day. 
And  if  it  was  necessary  to  have  a  six  months'  re- 
sidence for  a  county,  thirty  days'  residence  in  a 
town  ought  also  to  be  required. 

Mr.  STOW  moved  to  amend  Mr.  RtrGGLEs'  a- 
mendment  by  inserting  "  in  the  Assembly  dis- 
tricts." It  had  been  provided  that  in  the  city  of 
New  York  wards  might  be  divided  in  the  forma- 
tion of  Assembly  districts,  and  this  would  meet, 
that  case.  He  earnestly  beseeched  gentlemen  to 
forget  partizan  considerations  in  deciding  upon 
this  matter.  All  had  a  deep  and  holy  interest  in 
the  preservation  of  the  purity  of  elections.  Peo- 
ple of  all  parties  in  the  city  from  which  he  came, 
and,. he  believed,  in  all  parts  of  the  State,  were 
convinced  of  the  necessity  for  some  remedy  for 
the  evils  which  all  knew  to  exist,  and  which 
made  our  elections  almost  mockeries. 

Mr.  LOOMIS  was  in  favor  of  the  section  as  it 
was  reported,  with  the  exception  of  the  provision 
which  would  be  likely  to  deprive  of  a  vote  those 
who  should  by  necessity  remove  before  the  elec- 
tion. He  would  provide  against  this  by  amend- 
ing the  section  so  that  all  who  had  resided  in  the 
locality  for  which  the  officer  is  to  be  elected,  for 
sixty  days  previous  to  the  election,  should  be  en- 
titled to  vote  for  such  officers. 

Mr.  MORRIS  said  it  was  his  honest  convic- 
tion that  the  provision  desired  to  be  retained  here 
would  disfranchise  many  thousand  upright,  hon- 
est citizens,  every  fall,  in  the  city  of  New- York. 
For  the  purpose  of  preventing  frauds,  he  would 
have  a  provision  which  would  disfranchise  every 
person  who  should  be  convicted  of  either  com- 
mitting or  procuring  them. 

Mr.  RUGGLES  could  see  no  good  reasons  for 
the  objection  made  to  the  amendment  of  the  sec- 
tion, which  many  gentlemen  admitted  was  an  im- 


provement upon  the  original  section.  Unless  gen- 
tlemen desired  to  have  the  section  remain  as  bad 
as  possible,  in  order  to  vote  against  it,  they  would 
allow  it  to  be  improved.  He  desired,  as  the  gen- 
tleman from  New- York  also  professed  to  wish,  to 
provide  some  means  by  which  the  frauds  of  colo- 
nization and  double  voting  might  be  prevented. 
If  it  could  be  done,  without  producing  the  con- 
tingent evils  which  the  members  of  the  N.  York 
delegation  seemed  to  fear,  but  which  he  believed 
were  imaginary,  he  certainly  believed  it  ought  to 
be  acquiesced  in  by  all.  He  proposed  to  modify 
his  previous  amendment,  so  that  it  would  read : 

"  Shall  be  entitled  to  vote  at  such  election  in  the  town  or 
ward,  or  in  the  Assembly  district  in  which  he  shall  have 
been  an  actual  resident  daring  the  last  preceding  THIRTT 
days,  and  not  elsewhere,"  &c. 

Mr.  LOOMIS  urged  a  shorter  period  of  resi- 
dence also — say  ten  or  twenty  days. 

Mr.  TILDEN  read  an  amendment  which  he 
should  like  to  offer,  requiring  a  six  months'  resi- 
dence in  the  **  official"  district  for  which  the  offi- 
cer was  to  be  chosen. 

Mr.  HARRIS  offered  the  following  as  a  substi- 
tute for  Mr.  RUGGLES'. 

"  Shall  be  entitled  to  vote  at  such  election  in  the  election 
district  where  he  shall  reside  at  the  time  of  the  election, 
providing  he  shall  for  the  last  preceding  thirty  days  have 
been  an  actual  resident  of  the  town  or  ward  or  Assembly 
district,  in  which  he  offers  his  vote,  for  all  officers  which 
now  are  or  hereafter  may  be  elective  by  the  people." 

Mr.  RUGGLES  accepted  this  substitute,  upon 
the  condition  that  he  should  be  allowed  to  add  to 
it  as  follows  : — 

"  An  elector  who  by  reason  of  the  removal  of  his  resi- 
dence from  one  town,  ward  or  Assembly  district  to  anoth- 
er, in  the  same  county,  is  not  entitled  to  vote  in  the  town 
or  ward  in  which  he  shall  reside  at  the  time  of  the  elec- 
tion, may  vote  in  the  town  or  ward  from  which  he  shall 
have  last  removed,  provided  such  elector  shall  have  been 
a  duly  qualified  voter  in  the  place  from  which  he  shall  have 
removed,  at  the  time  of  his  removal." 

Mr.  LOOMIS  called  for  a  division  of  the  ques- 
tion, so  that  it  should  be  first  taken  upon  the 
clause  first  offered. 

Mr.  SWACKHAMER  said  an  inspector  must 
be  a  judge  forty  years  to  understand  the  section. 
Not  a  man  here,  he  ventured  to  say,  understood 
these  amendments  fully. 

Mr.  O'CONOR  hoped  all  friends  of  the  exten- 
sion of  the  elective  franchise  would  vote  against 
every  motion  which  amended  the  section  as  it 
stood  in  i he  original  constitution.  This  was  an 
attempt  to  complicate  the  matter  and  make  it  a 
more  intricate  question  than  128  of  the  wisest 
men  in  the  state  would  be  able  to  unravel  in  the 
time  which  was  left  for  the  sitting  of  this  Con- 
vention. 

The  CHAIR  (Mr.  PATTERSON)  now  decided  the 
amendment  originally  proposed  by  Mr.  SWACK- 
HAMER to  be  first  in  order. 

After  some  conversation  between  Messrs, 
BROWN  and  HARRIS,  as  to  the  effect  of  the 
proposition  of  the  latter, 

Mr.  WORDEN  moved  the  previous  question, 
and  it  was  seconded. 

The  amendment  of  Mr.  SWACKHAMER,  which 
restored  the  section  to  the  form  of  the  old  consti- 
tution, was  negatived,  as  follows : — 

AYES— Messrs.  Allen,  Bergen,  Bowdish,  Brown,  Brun- 
dage,  R,  Campbell,  jr.,  Clark,  Clyde,  Cornell, Hart,  Hunt, 
A.  Huntington,  Hutchinson,  Jones,  Kernan,  Kingsley, 
Mann,  Maxwell,  Morris,  Muuro,  Nicoll,  0 'Conor,  Perkins 


1045 


Powers,  Hiker,  Russell,  St.  John,  Sanfonl,  Shaw, Stephens, 
Taft,  W.Taylor,  Tilden,  Tuthill,  Vache,  Ward,  White, 
Willard,  Wood,  Yawger,  Youngs— 42. 

i-ssrs.  Archer,  Ayrault,  F.  F.  Backus,  H.  Back- 
us, Baker,  Bascom.  Brayton,  Bruce,  Bull,  Burr,  D.  D 
Campbell,  Candee,  Conely,  Cook,  Dana,  Danforth,  Dodd, 
Dorlon,  Dubois,  Forsyth,  Gebhard,  Graham.  Greene,  Har- 
ris, Harrison,  Hawley.Hotchkiss,  Jordan,  Kemlile,  Kirk- 
land,  Loomis,  McNeil,  Marvin,  Ifliller,  Ncllis,  Nicholas, 
Parish,  Patterson,  Penniman,  Porter,  fRhoades,  Richmond, 
Ruggles,  Salisbury,  Shaver,  Simmons,  E.  Spencer,  Stan- 
ton,  Stow,  Strong,  Taggart,  Tallmadge,  J.  J.  Taylor, 
Townsend,  Van  Schoonhoven,  Wan  en,  Waterbury,  Wit- 
beck,  Worden,  A.  Wright,  "W.  li.  Wright,  Young— €2. 

Mr,  TILDEN  here  raised  the  point  that  the 
amendment  of  Mr.  RUGGLES  was  not  now  in  or- 
der — it  not  being  in  order  at  the  time  when  the 
previous  question  was  moved — and  appealed  from 
the  decision  of  the  CHAIR  to  the  contrary  ;  but 
subsequently  withdrew  it. 

The  first  part  ot  Mr.  RUGGLES'  amendment, 
(that  proposed  by  Mr.  HARRIS)  was  agreed  to  as 
follows: 

AYES— Messrs.  AUkn,  Angel,  Archer,  Ayrault,  F.  F. 
Backus,  H.  Backus,  Baker,  Bascom,  Brayton,  Bruce, Bull, 
Burr,  D.  D.  Campbell,  Caudee,  Conely,  Cook,  Dana,  Dodd, 
Doiion,  Dubois,  Forsyth,  Gebhard,  Graham,  Greene,  Har. 
ris,  Harrison,  Hawley,  Jordan,  Kemble,  Kirkland,  Loomis, 
McNitt,  Marvin,  Maxwell,  Miller,  Nellis,  Nicholas,  Par. 
ish,  Patterson,  Penniman,  Porter,  Powers,  President, 
Rhoades,  Richmond,  Ruggles,  St.  John,  Salisbury,  Shaver, 
Simmons,  E.  Spencer,  Stow,  -Strong,  Taggart,  Tallmadge, 
Townsend,  Van  Schoonhoven,  Warren,  Waterbury,  Wit- 
beck,  Worden,  A.  Wright,  W.  B.  Wright,  Young— 64. 

NAYS— Messrs.  Bergen,  Brown,  Brundage,  R.Campbell, 
jr.,  Clyde,  Cornell,  Cuddeback,  Danlorth.Hart,  Hotchkiss, 
A.  Huntington,  Hutchinson,  Jones,  Kennedy,  Kernan, 
Kingsley,  Mann,  McNeil,  Morris,  Munro,  Murphy,  Nicoll, 
O'Conor,  Perkins,  Riker,  Russell,  Sandford,  fehaw,  Ste 
phens,  Swackhamer,  Taft,  W.  Taylor,  Tilden,  Tuthill, 
Vache,  Ward,  White,  Willard,  Wood— 39. 

The  latter  clause  was  adopted — 58  to  43. 

Mr.  KENNEDY  moved  a  reconsideration  of  the 
vote  upon  the  first  clause.  He  did  not  think  that 
a  thirty  days  residence  would  effect  the  object  de- 
flired. 

Mr.  STOW  made  the  same  motion  with  regard 
to  the  last  vote. 

Mr.  JONES  moved  the  section  of  the  old  consti- 
tution as  a  substitute  for  the  amended  section  of 
the  report,  omitting  the  clause  in  regard  to  per- 
sons of  color. 

Propositions  to  amend  the  matter  proposed  to  be 
struck  out  being  first  in  order 

Mr.  DANA  moved  to  amend  so  as  to  lequire 
six  months  residence  in  the  judicial  district,  in- 
stead of  the  county — but  withdrew  it  under  a  call 
for  the  previous  question. 

Mr.  BROWN  moved  to  amend  so  as  to  require 
ten  instead  ot  sixty  days' citizenship,  and  three  in- 
stead ot  six  weeks'  residence  in  the  county. 

Both  these  propositions  were  adopted— 49  to  45, 
and  65  to  35. 

Mr.  J  ONES'  substitute  was  next  in  order. 

Mr.  HARRIS  moved  to  amend  the  substitute, 
so  that  it  would  read  as  follows : 

«' Every  male  citizen  of  the  age  of  21  years,  who  shall 
have  been  an  inhabitant  ol  this  state  one  year  next  pre- 
ceding any  election,  and  for  the  last  three  months  a  resi- 
dent of  the  county  where  he  m;iy  offer  his  vote,  and  shall 
have  been  a  citizen  lor  20  days,  shall  be  entitled  to  vote  in 
the  election  district  in  which  he  shall  actually  reside,  for 
all  officers  that  now  are,  or  hereafter  may  be  elected  by  the 
people,  provided  he  shall  loi  30  days  next  preceding,  have 
])«•«!»  an  actual  resident  of  the  town  or  ward  and  assembly 
district  in  which  he  offers  to  vote." 

Mr.  JONES  withdrew  his  proposed  substitute. 


Mr.  CORNELL  moved  to  amend  by  adding  at 
the  end  of  the  section : 

"But  the  privilege  of  the  elective  franchise  herein  con- 
ferred, shall  not  be  construed  to  apply  to  any  person  of  co- 
lor except  such  as  shall  be  siezed  and  possessed  of  a  free- 
hold estate  as  required  in  this  section,  on  the  day  when 
this  Constitution  shall  go  into  effect.  And  no  person  of 
color  shall  be  subject  to  direct  taxation  unless  he  shall 
possess  the  privilege  of  the  elective  franchise." 

At  an  earlier  period  of  the  session  Mr\  C.  had 
intended  to  have  examined  some  of  the  proposi- 
tions reported  to  the  Convention  by  committee 
number  four,  especially  those  which  related  to 
negro  suffrage,  somewhat  at  length.  But  the 
subject  not  having  been  reached  until  after  the 
Convention,  from  the  press  of  business  upon  its 
hands,  had  found  it  necessary  to  adopt  a  fifteen 
minute  rule,  under  the  operation  of  which  it 
was  of  course  impossible  to  examine  a  question 
of  this  nature;  indeed  there  could  be  no  greater 
folly  than  to  suppose  that  any  thing  at  all 
worthy  the.  name  of  a  discussion  of  the  merits  of 
a  question,  so  grave  and  intricate  as  this,  could 
be  had  under  it.  He  should  therefore  merely  al- 
lude to  some  of  the  principal  points  of  argument, 
and  to  some  of  the  facts  and  circumstances  upon 
which  the  question  must  turn  and  be  decided 

He  differed  with  the  gentleman  from  Erie  (Mr. 
STOW)  who  if  he  understood  him,  held  it  to  be 
purely  a  question  of  expediency  and  public  policy 
who  we  would  entrust  with  the  possession  and 
exercise  of  the  power  of  voting  in  the  state,  while 
he  agreed  with  the  gentleman  from  Seneca  (Mr. 
BASCOM,  and  the  gentleman  from  Wyoming  (Mr. 
YOTJNG)  that  it  was  one  of  natural  and  inalienable 
right.  How  then,  it  might  be  asked,  could  we 
exclude  the  negroes,  or  as  gentlemen  call  them, 
our  colored  fellow  citizens,  without  a  gross  vio- 
lation of  right  and  justice,  by  which  we  should 
forfeit  all  just  claim  to  democracy  or  republican- 
ism, and  give  to  the  negroes  just  cause  and  right 
revolution  ?  If  time  permitted  him  to  give  this 
subject  the  examination  which  it  merited,  he 
should  think  it  proper  to  go  into  a  critical  analy- 
sis of  the  supposed  difficulties  which  beset  the 
practical  operation  of  this  natural  and  inaliena- 
ble right  of  all  men  to  political  equality,  not 
doubting  that  they  would  be  found  to  have  no 
real  existence. 

The  doctrine  promulgated  in  the  Declaration  of 
Independence,  *'  that  all  men  are  created  equal — 
that  they  are  endowed  by  their  Creator  with  cer- 
tain unalienable  rights — that  among  these  are 
life,  liberty,  and  the  pursuit  of  happiness:  That 
to  secure"  (the  practical  enjoyment  of)  "  these 
rights,"  that  "  governments  are  instituted  among 
men,  deriving  their  just  powers  from  the  consent 
of  the  governed ;"  or,  in  other  words,  "  That  any 
and  every  government  instituted  or  existing,  de- 
rives all  its  just  powers  of  judgment  and  action,  in 
which  it  has  its  entire  entity,  as  a'n  organised  in- 
stitution or  being  in  the  state,  from  the  consent 
of  the  people,  governed  by  means  of  its  operation, 
as  their  agency  for  that  purpose."  This  was  to 
him  no  mere  idle  abstraction,  destitute  of  practi- 
cability ;  but  on  the  contrary,  he  held  it  to  be  a 
part  of  the  fundamental  basis  of  the  true  science 
of  government,  and  civil  society,  and  of  Ameri- 
can constitutional  law. 

In  perusing  the  pages  of  history,  he  found  that 
the  capacity  and  necessities  of  mankind  had  rear- 


1046 


ed  the  civil  state  in  several  different  forms, 
with  many  differences  of  detail — but  upon  a  close 
examination,  it  would  be  found  that  there  was  but 
one  power  in  operation,  and  that  there  were  but 
two  principles  upon  which  it  did  or  could  ope- 
rate. The  attributes  of  God  were  proportionate 
one  to  another.  Man  was  created  in  his  image, 
with  the  privilege  toward  God,  but  toward  his 
fellow,  the  rights  of  life,  liberty,  and  the  pur- 
suit of  happiness,  to  be  held  by  the  race  in 
perpetuity,  necessarily  bringing  with  them 
the  power  of  providing  for  their  security — and  as 
no  power  was  adequate  to  that  end,  but  that 
which  was  supreme,  absolute,  sovereign,  it  fol- 
lowed of  necessity  that  sovereignty,  except  as  to- 
ward God,  existed  in  man,  coextensive  with 
his  rights — and  as  sovereignty  was  in  its  nature  a 
unit,  indivisible,  it  coul'd  be  vested  in  and  opera- 
ted by  man,  but  upon  two  distinct  principles — 
first,  upon  the  American  principle  of  the  sove- 
reignty of  the  people,  or  all  men,  upon  which 
the  individuals,  as  held  by  Justice  'WILSON,  and 
other  eminent  writers  upon  government  and  con- 
stitutional law,  were  joint  tenents  in  the  sove- 
reignty of  the  state,  and  of  right  co-participants 
in  its  exercise. 

This  was  the  elementary  principle — the  funda- 
mental basis  of  democracy. 

The  second  and  only  other  principle  upon 
which  it  could  exist  and  operate,  was  that  com- 
monly known  as  the  divine  right  of  kings,  or  ab- 
soluteism,  which  differed  from  the  first,  only  in 
that  it  assumed  a  divinely  conferred  sovereign- 
ty, exclusively  in  one  person,  or  in  a  number  of 
persons,  in  perpetuity.  Although  this  doctrine 
had  been  exploded,  principally  because  it  involv- 
ed the  necessity  of  man's  existing  without  rights 
or  of  his  rightful  existence  without  a  rightful  or 
legitimate  title  to  the  power  of  existence  in  per- 
petuity, which  was  the  same  thing ;  yet  he  was 
aware  that  it  was  still  held  to  be  true,  and  practi- 
ced upon  in  many  nations.  He  believed  that  all 
the  various  forms  of  government  would,  upon 
careful  examination  resolve  themselves  into  one 
or  the  other  of  these  two  principles,  and  that  the 
estates,  technically  so  called,  which  enter  form- 
ally into  the  composition  of  what  is  called  mixed 
government,  would  be  found  to  be  held  of  grace 
irom  the  sovereign,  he  permitting  their  existence 
and  exercise  or  not,  at  pleasure.  The  estates,  or 
orders  in  the  English  nation  were  so  permitted  to 
exist;  the  functions  of  sovereignty  which  thev 
exercised  were  not  original  in  them,  but  the  ex- 
ercise of  those  functions  was  merely  vested  in 
them  by  the  sovereign. 

It  was  not  necessary  to  his  present  purpose  to 
allude  to  the  various  conditions  incident  to  special 
absoluteism,  such  as  abdication,  regency,  &c.; 
sufficient  was  it  to  say,  that  it  differed  essentially 
from  the  true  theory,  only  in  that  it  necessarily 
held  all  human  rights  and  power  to  be  alienable. 

If  the  people  were  sovereign,  if  all  the  persons 
composing  the  people  were  joint  tenants  in  the 
sovereignty,  wherefore,  it  was  asked,  do  we  ex- 
clude females  and  children  of  a  certain  age,  &c., 
from  voting  ?  or  from  participating  in  the  action 
by  which  the  sovereign  speaks  ? 

Time  would  not  permit  him  to  reply  to  this 
objection  at  length,  to  examine  in  detail  the  ele- 
mental condition,  or  if  he  might  be  permitted 


the  expression,  the  physiology  of  the  State,  or 
what  constitutes  its  perfection  or  imperfection, 
in  what  condition  it  is  complete  or  incomplete, 
its  positive  or  male  side,  its  passive  or  female 
side,  their  embrionic  condition,  &c.  He  would 
merely  remark,  that  the  conditions  and  limita- 
tions to  the  practice  of  conventional  rights  and 
powers,  must  be  conventional.  To  the  practice  of 
those  rights  and  powers  which  were  natural,  the 
conditions  and  limitations  must  be  natural.  The 
peculiar  mode  of  exercise  of  the  sovereign  power 
to  which  the  several  natural  elements  of  the 
State  were  entitled  or  confined,  the  positive  and 
direct,  or  the  passive  and  indirect,  were  indi- 
cated and  determined  with  great  precision  and 
certainty,  by  their  capacity  to  its  full  and  con- 
tinuous exercise  ;  but  of  this  there  was  no  time 
to  speak,  or  of  those  conditional  and  subsidiary 
elements,  which  were  necessitated  to  non  user, 
the  limitations  of  which'  were  found  by  the  natu- 
ral rule  of  general  average. 

He  believed  that  the  great  points  of  this  doc- 
trine should  be  declared  in  the  Constitution.  At 
an  early  period  of  the  session  a  resolution  had, 
upon  his  motion,  been  adopted  asking  committee 
number  eleven  "  to  enquire  into  the  expediency 
of  embodying  in  the  Constitution  a  clear  and  suc- 
cinct statement  or  declaration  of  principles,  as  to 
the  origin  and  ground  of  government  in  this 
State."  But  the  famous  debate  upon  the  qualifi- 
cations of  the  Governor  had  cured  him  of  all  ex- 
pectations which  he  might  have  entertained  that 
it  would  be  practicable  for  this  Convention  te  do 
so.  But  this  was  not  the  only  great  truth  con- 
tained in  the  Declaration  of  Independence.  To- 
ward the  end  of  that  immortal  document  we  read 
the  further  declaration  "  that  these  colonies  are, 
and  of  right  ought  to  be  "  not  only  separate,  but 
"  free  and  independent  states,"  &c.  Now  what 
was  the  condition  of  a  free,  sovereign  and  inde- 
pendent state — a  separate,  distinct  and  indepen- 
dent nationality  ?  It  was  a  condition  of  complete 
and  unlimited  power,  to  admit  individuals,  of  the 
people  of  other  nations,  to  enter  and  sojourn  with- 
in its  territory  as  aliens,  and  to  privilege  them  as 
it  chose,  so  far  and  so  long  as  it  thought  proper, 
or  not  at  all ;  and  also  to  naturalize  or  consolidate 
into  itself  all  such  alien  sojourners  as  may  con- 
sent thereto ;  or  such  races  and  national  descrip- 
tions of  them,  and  such  only,  as  it  chose,  or  none 
at  all. 

The  right  of  nations  to  do  that,  and  the  entire 
destitution  of  right  in  other  nations  or  the  indi- 
viduals thereof  to  do  any  thing  inconsistent  there- 
with, cannot  be  denied  without  opposing  the 
clearest  conclusions  of  reason  and  common  sense, 
and  the  best  authorities  upon  natural  and  inter- 
national law.  That  being  the  case  how  were  we 
to  understand  the  democratic  principle  of  the  po- 
litical equality  of  mankind,  in  connection  with 
nationality,  and  in  that  connection  alone.  All  men 
who  are  of  the  people  of  New  York,  were  of  right 
equal  one  to  another,  all  men  who  were  of  the 
people  of  Spain  were  of  right  equal  one  to  ano- 
ther, as  to  their  nationality.  There  was  no  other 
political  equality. 

Who  were  the  people  of  a  state  ?  Who  were 
the  people  of  New  York  ?  The  true  answer  to 
this  question  is  given  by  the  publacist,  "  since 
every  state  is  constituted  by  men's  submitting 


1047 


their  wills  to  a  single  person  or  to  an  assembly, 
they  principally  have  a  title  to  the  name  of  mem- 
bers, by  whose  covenants  the  society  were  first 
incorporated,  and  they  who  regularly  succeed  in 
to  the  place  of  those  primitive  founders,"  and 
such  others  as  they  admit  to  consolidation  witn 
themselves.  Now  who  were  the  founders  of  this 
state ;  who  were  "  the  good  people  of  this  colony" 
by  whose  authority  it  was  founded  ?  They  were 
a  portion  of  the  British  people  ;  they  were  British 
subjects  up  to  the  day  of  its  foundation  ;  not  quasi 
subjects  merely,  subject  to  obey  the  laws  by  rea- 
son of  their  inhabitancy  by  permission  within  the 
territorial  jurisdiction  of  the  crown,  but  full  and 
free  subjects,  in  the  so  to  speak,  technically  na- 
tional or  political  sense  of  the  term. 

To  this  condition,  the  negroes,  whether  of  trans 
or  cis-atlantic  birth,  were  never  admitted  by  the 
British  nation  prior  to  the  revolution— they  were 
an  alien  people'  on  the  day  New  York  assumed 
existence  as  a  sovereign  state,  and  he  denied  that 
it  could  be  shown  that  the  state  of  New  York  had 
ever  naturalized  or  consolidated  into  itself  a  sin- 
gle negro,  while  the  power  to  naturalize  was  con- 
tinued to  be  exercised  by  separate  state  action, — 
nor  had  it  been  done  by  any  other  state. 

It  was  well  known  that  Congress,  in  accord 
ance  with  the  spirit  of  the  federal  constitution 
and  the  universal  understanding  and  well  known 
intention  of  the  people  of  the  States,  at  the  time 
of  its  adoption,  had  expressly  provided  against 
their  naturalization.  Nothing  could  be  claimed 
on  account  of  their  having  been  soldiers  in  our 
revolutionary  and  other  wars,  beyond  what  migh 
be  done  for  any  other  aliens,  if  so  much — seeing 
they  were  in  modt  cases  governed  by  their  mas- 
ters, whether  for  oo  against  us,  and  could  not  have 
been  deemed  capable  of  treason  in  any  event. 

No  one  pretended  that  an  alien  of  exlra-territo- 
rial  birth  could  be  naturalized  without  some  ex- 
press act  in  his  favor,  declaring  or  recognizing 
some  rule  as  to  its  effect  upon  his  descendants  o 
heritable  blood  ;  yet  it  seemed  lobe  supposed  tha 
the  son  of  an  alien,  even  though  he  might  be  ex 
trageneous,  would  be  a  citizen,  it  born  within  ou 
territory,  in  the  absence  of  any  express  provision  or 
our  part  in  relation  to  the  case,  even  in  the  lac< 
of  an  express  exclusion  of  the  father.  But  thi 
he  apprehended  was  not  the  rule. 

He  was  willing  to  admit  that  the  negro,  like 
any  other  alien,  might  be  privileged  beyond  true 
alien  ritthts ;  and  that  such  privileges  might  be 
identical  in  form  with  the  rights  of  the  citizen 
but  these  privileges  were  subject  to  revocation 
Massachusetts  had  prnileged  the  negroes  in  ilia 
form ;  and  some  supposed  she  had  naturalizec 
them  into  herself,  and  constituted  them  citizen 
of  the  United  States,  in  the  proper  technical  sens 
of  that  term.  Nothing  was  larthertrom  the  tiuth 
Those  privileges  did  not  reach  beyond  the  bound 
of  that  state. 

The  subject  of  the  political  grade  of  the  fre 
negro  population  of  the  United  States,  had  bee 
supposed  to  be  full  of  difficulties.  For  himseli 
he  could  see  none  of  an  insurmountable  charac 
ter.  He  could  indeed  see  many  anomalies  in  ou 
legislation  upon  the  subject  ;  but  he  believed  tha 
upon  a  careful  examination  ot  the  matter,  the 
would  prove  to  have  arisen  more  from  a  misur 
derstanding  of  the  elementary  principles  of  ou 


olitical  institutions,  and  from  a  strange  disposi* 
on  to  overlook  the  existence  of  the  conditions  of 
xtrageneous  alienage  and  the  various  stages  of 
uasi  citizenship  intermediate  between  the  con- 
ition  of  chattel  slavery,  and  that  of  complete 

chnical  citizenship,  than  from  the  intrinsic  na- 
ure  of  the  case  itself. 

He  regarded  the  privilege  of  voting  granted  to 
ic  negroes  in  this  State,  by  the  constitution  of 
wenty-one — on  condition  of  their  owning  a  free- 
old  estate,  to  be  of  that  special  character,  sub- 
;ct  to  revocation.  It  was  conferred  upon  them  as 
n  experiment  for  their  improvement ;  but  it  had 
ailed  to  produce  any  other  effect  than  to  mislead 
Republic  mind  as  to  their  citizenship,  and  create 
n  odious  and  aristocratic  distinction  among  them- 
elves,  at  war  with  the  theory  of  our  institutions, 
nd  of  evil  example  and  tendency.  For  these, 
mong  other  reasons,  he  had  voted  for  its  entire 
bolition.  But  the  Convention  by  a  strong  vote 
lad  decided  to  retain  it,  not,  as  he  understood, 
hat  it  was  right  and  proper  in  itself,  but  express- 
y  upon  the  ground  that  these  negroes  who  had 
ecome  voters  under  the  encouragement  held  out 
o  them  by  the  provisions  of  the  old  constitution, 
lad  an  equitable  claim  upon  us  to  continue  the 
peration  of  these  provisions  in  their  favor.  He 
ould  not  concur  in  that  opinion,  but  he  had  been 
iverruled  upon  that  point. 

It  had  also  been  decided,  that  no  attempt  should 
>e  made  to  naturalize  them,  or  to  privilege  them 
A'ith  what,  to  them,  would  be  really  and  truly  the 
mvilege  of  the  elective  franchise,  or  suffrage, 
ipon  the  condition  of  their  humanity  alone,  or 
upon  any  other  terms  or  conditions  than  the  pos- 
session of  a  freehold  estate.  The  Convention 
had  also  seemed  to  consider  that  direct  taxation 
without  representation,  should  not  apply  even  to 
the  individual  resident  though  an  alien.  In  ac- 
cordance with  these  decisions  of  the  Convention 
lis  amendment  had  been  drawn.  If  adopted,  it 
would  work  the  gradual  abolition  of  the  require- 
ment of  property  as  a  qualification  for  voting,  to 
which  principle  we  all  professed  to  be  opposed, 
saving  at  the  same  time  the  privileges  of  the  pre- 
sent negro  voters,  and  leaving  all  other  negroes, 
who  could  not  hereafter  acquire  that  privilege, 
from  direct  taxation  even  though  they  should  ac- 
quire property  far  beyond  the  value  of  two 
hundred  and  fifty  dollars,  on  the  same  principle 
which  the  old  constitution  applied  to  those  who 
acquire  an  amount  of  property  less  than  two  hun- 
dred and  fifty  dollars.  This  provision,  based  as 
it  was  upon  the  decisions  already  made  by  the 
Convention,  was,  it  appeared  to  him,  eminently 
wise  and  beneficent,  and  could  not  fail  to  meet 
the  hearty  approval  of  the  people  of  this  state. — 
To  the  decision  of  the  Convention,  that  it  would 
make  no  attempt  to  consolidate  the  negro  into 
the  people  of  this  state,  he  heartily  agreed,  be- 
lieving that  the  people  of  this  state  had  no  right 
to  attempt  it  under  the  Federal  Constitution,  if 
indeed  it  were  possible  to  do  so  successfully  un- 
der any  circumstances.  He  believed  it  would  be 
impossible  by  reason  of  the  antipathy  which  na- 
ture had  interposed  between  the  races,  as  an 
impassable  barrier  to  social  amalgamation  into 
consanguinity ;  he  believed  that  it  would  be 
against  the  manifest  spirit  of  the  Federal  Con- 
stitution, to  privilege  the  negro  with  any  direct 


1048 


voice  in  our  political  affairs,  and  that  it  would  be 
dangerous  to  our  welfare,  and  to  the  union  of  the 
States. 

If  the  principles  involved  in  the  case  were  such 
as  he  had  indicated,  it  would  be  seen  at  once, 
that  there  was  no  question  of  democracy  and 
equal  rights,  or  of  aristocracy,  embraced  in  its 
consideration  or  connected  with  it,  any  more  than 
there  was  in  the  question  of  consolidating  the  abo- 
riginees  of  our  country  with  ourselves,  or  of  the 
naturalization  of  Europeans,  otherwise  than  that 
an  attempt  to  consolidate  the  negro  with  our  own 
race,  must,  so  far  as  it  was  successful,  operate  to 
deteriorate,  corrupt  and  wither  our  democratic  in- 
stitutions, while  on  the  other  hand,  as  from  the  na- 
ture of  the  case  might  have  been  expected,  the  ad- 
mission of  Europeans  had  operated  to  sustain  and 
strengthen  them.  But  if  the  negroes  were  to  be 
admitted,  or  the  principle  contended  for  by  the 
gentleman  from  Madison  (Mr.  BRUCE)  and  oth- 
ers upon  this  floor,  upon  their  humanity  alone, 
irrespective  of  nationality  and  race,  operating 
throughout  the  world  of  mankind  at  large,  estab- 
lishing one  great  cosmos,  it  would  in  the  present 
condition  of  the  world,  instead  of  carrying  out 
and  establishing  the  principle  of  democracy, 
work  its  entire  and  complete  overthrow,  and  of 
nationality  along  with  it. 

But  the  Convention  he  was  sure  would  not 
sanction  a  principle  like  that,  were  we,  in  antici- 
pation of  the  long  looked  for  millenium,  about  to 
proclaim  ourselves  citizens  of  the  world,  cos- 
mopolites, destitute  of  patriotism,  and  all  the 
world  and  his  wife  promiscuously  citizens  of  our 
own  state,  he  trusted  not,  he  trusted  the  decision 
of  the  convention  in  that  respect  would  be  adher- 
ed to. 

If  the  state  retained  the  power  to  natu- 
ralize them,  or  even  the  clear  right  to  privilege 
them  as  proposed,  it  would,  he  could  not  doubt, 
be  highly  inexpedient  to  do  so,  but  he  should  not 
discuss  that  branch  of  the  subject,  not  doubting 
that  chattel  slavery  was  destined  to  cease,  leaving 
some  three  millions  of  those  people  to  be  dispos- 
ed of  in  some  way ;  he  could  not  deem  it  wise  to 
tie  them  to  us  in  any  manner  whatever. 

He  believed  that  slavery  had  been  permited  in 
the  providence  of  God,  as  a  means  of  preparing 
a  portion  of  the  Ethiopian  race  for  the  great  mis- 
sion of  civilizing  the  tribes  of  Africa,a  work  which 
had  failed  in  the  hands  of  every  other  race  ;  he 
would  do  every  thing  to  prepare  them  for  that 
great  work  but  nothing  to  retard  their  entrance 
upon  it  at  the  earliest  possible  day. 

Mr.  A.W.  YOUNG  opposed  the  amendment,  and 
was  lost — ayes  15,  noes  74, 

Mr.  WORDEN  moved  to  substitute  the  section 
proposed  by  Mr.  JONES  as  modified  by  Mr.  HAR- 
RIS, with  the  exception  that  he  changed  the  30 
days  in  the  last  place  mentioned  to  20  dajs. 

Explanations  passed  between  Messrs.  RUG- 
GLES,  STOW,  WORDEN  and  TILDEN,  who 
moved  to  amend  the  amendment  of  Mr.  WORDEN, 
by  adding  as  follows  : 

"But  the  removal  of  any  citizen  from  one  election  dis- 
trict to  another  within  twenty  days  next  preceding  an  elec- 
tion, shall  not  prevent  such  citizen  from  voting  in  the  dis- 
trict from  which  he  removed,  if  he  had  been  a  resident 
thereof  ior  twenty  days  next  preceding  his  removal." 

Mr.  O'CONOR  was  allowed  to  read  a  resolution 


referring  the  first  section  to  a  select  committee, 
with  instructions  to  report  it  in  a  certain  form; 
but  the  previous  question  was  insisted  upon. 

Mr.  JONES  moved  to  adjourn. 

He  gave  way  to  allow  Mr.  BAKER  to  give  no- 
tice of  a  motion  to  reconsider  the  resolution  fixing 
the  day  of  final  adjournment. 

The  motion  to  adjourn  was  negatived. 

The  previous  question  was  then  seconded. 

The  amendment  of  Mr.  TILDEN  was  lost— 46 
to  46. 

The  amendment  of  Mr.  WORDEN  was  negati- 
ved— ayes  43,  nays  50- 

Mr.  MARVIN  gave  notice  of  a  motion  to  recon- 
sider this  vote. 

Mr.  BRAYTON  had  leave  to  record  his  vote  in 
the  affirmative  on  the  question  of  striking  out  the 
word  white  in  the  1st  section. 

The  Convention  then  adjourned  to  8  1.2  o'clock 
to-morrow  morning. 


SATURDAY,  (105th  day,)  Oct.  3. 

Prayer  by  the  Rev.  Mr.  A.  CAMPBELL. 

Mr.  KIRKLAND  presented  a  petition  from  Al- 
van  Stewart  and  others  of  Oneida,  for  an  exten- 
sion of  the  elective  franchise.  Laid  on  the  table. 

Messrs.  JORDAN  and  W.  C.  WRIGHT  sever- 
ally presented  petitions  Irotn  the  city  of  New 
York,  for  the  abolition  of  the  superior  court  of 
that  city,  and  an  increase  of  the  number  of  su- 
preme court  judges.  Referred  to  the  committee 
of  revision,  &c, 

THE  NEW  CONSTITUTION. 
Mr.  JORDAN,  from  the  select  committee  on 
the  revision  of  the  Constitution,  submitted  a  re- 
port. The  articles,  as  far  as  acted  upon,  the  com- 
mittee  had  arranged;  some  of  the  phraseology 
they  had  changed,  and  subjects  not  touched  by  the 
Convention  they  had  provided  for  by  adopting  the 
provisions  of  the  present  constitution.  The  order 
in  which  the  committee  had  placed  the  articles 
was  as  follows  : 

1.  The  Bill  of  Rights. 

2.  The  Elective  Franchise. 

3.  The  Powers  and  Duties  of  the  Legislature. 

4.  The  Executive  Department. 

5.  The  Administrative  Department. 

6.  The  Judiciary. 

7.  Finances — both  articles. 

8.  Corporations— Messrs.  LOOMH  and  CAMBRELENQ'S 

report. 

9.  Education. 

10.  Local  Officers. 

11.  The  Militia  (old  constitution.) 
12    Oaths  and  Affirmations. 

13.  Future  Amendments. 

14.  A  Schedule    which  provides  the   time  when  the 

term  of  offices  abolished  shall  expire,  and  the 
new  Government  go  into  full  effect. 

To  these  the  committee  had  prefixed  the  fol- 
lowing preamble : 

We,  the  People  of  the  State  of  New  York,  grateful  to 
Almighty  God  for  our  freedom  :  in  order  to  secure  its 
blessings,  do  establish  this  Constitution." 

There  were  various  provisions  which  the  com- 
mittee had  introduced,  under  instruction  of  the 
Convention.  Mr.  J.  went  into  a  minute  explana- 
tion of  the  efiect  of  the  changes  and  modifications 
made  by  the  committee,  and  concluded  by  moving 
that  the  report  be  laid  on  the  table  and  printed. 

Mr.  RUSSELL  moved  to  amend  so  as  to  have 
the  printing  done  under  the  supervision  of  the 


1049 


gentleman  who  had  made  Ihe  report,  who  had 
given  his  best  attention  to  the  subject  day  and 
night  for  some  time. 

Mr.  KIRKLAND  offered  a  substitute  providing 
that  the  leport  be  laid  on  the  table  and  printed  by 
84  o'clock  on  Monday  morning,  and  made  the  spe- 
cial order  for  that  day.     Agreed  to. 
THE  MILITIA. 

Mr.  WARD  moved  that  the  report  of  committee 
No.  8  on  the  militia,  be  referred  to  the  committee 
on  revision,  with  instructions  to  incorporate  it  in 
the  constitution.  The  only  difference  he  said  in 
the  article  as  reported  by  the  select  committee, 
and  that  of  the  standing  committee,  was  in  rela- 
tion to  the  appointment  ot  the  Commissary  Gener- 
al, and  the  provision  changing  the  mode  of  ap- 
pointment of  the  Brigade  Inspectors. 

Mr.  JONES  thought  this  to  be  but  matter  for 
legislation,  and  as  there  was  no  time,  in  his  opin- 
ion, to  consider  the  subject,  he  moved  it  to  be  laid 
on  the  table.  Mr.  J.  subsequently  withdrew  his 
motion. 

Mr.  WARD  replied,  urged  the  importance  of 
action  on  this  report.  No  provision  had  yet  be«n 
made  for  the  appointment  of  the  Commissary  Ge- 
neral. 

The  first  section  was  then   read  and  agreed  to. 

Mr.  BASCOM  urged  that  there  was  not  time  to 
go  through  with  this  article,  and  suggested  that 
the  chairman  of  the  committee  draft  an  article 
vesting  the  whole  arrangement  of  the  matter  in 
the  legislature. 

Mr.  WARD  said  the  whole  article  had  been  re- 
ported on  this  matter  by  the  committee  on  revi- 
sion, except  that  in  relation  to  Brigade  Inspectors 

The  question  being  taken,  the  first  section  was 
adopted. 

The  second  section  was  then  read. 

Mr.  JONES  moved  to  amend  by  striking  out  all 
that  related  to  the  Commissary  General,  and  on 
that  question  asked  for  the  ayes  -and  nays. 

Mr  WARD  said  this  section  was  adopted  on 
the  recommendation  of  the  committee  on  elections. 
For  himself  he  could  see  no  reason  why  the  Com- 
missary General  should  be  elected. 

Mr.  NICHOLAS  moved  to  add  to  the  end  of  the 
second  section  the  words — "He  (the  Commissary 
General)  shall  give  security  for  the  faithful  execu- 
tion of  the  doty  of  his  office,  in  such  manner  and 
amount  as  shall  be  prescribed  by  law." 

Mr.  WARD  thought  it  unnecessary  to  make 
such  a  provision  here.  It  was  matter  of  legisla- 
tion. 

The  amendment  was  agreed  to. 

Mr.  JONES  then  modified  his  motion  so  as  to 
provide  for  the  election  of  this  office  by  the  peo- 
ple. 

Mr.  RUGGLES  said  this  was  a  military  officer, 
especially,  and  in  time  of  war,  there  should  be  an 
entire  confidence  between  this  officer  and  the 
C  >mmander-in-Chief.  If  as  in  the  last  war,  there 
should  be  high  party  conflicts,  and  they  should 
participate  in  those  feelings,  it  might  lead  to  great 
evils. 

Mr.  TALLMADGE  was  opposed  to   the  inser 
tion  of  the  proposition  in  the  constitution  at  all — 
it  was  a  matter   of  legislation,  and  should  be  left 
there. 

Mr.  SIMMONS  concurred  in  the  vievvsexptess- 
ed  by  Mr.  RUGGLES. 

106 


Mr.  BRUCE  followed  on  the  same  side. 

Mr.  NICHOLAS  replied   to  Mr.  TALLMADGE. 

The  debate  was  then  continued  by  Messrs. 
PERKINS  and  JONES,  when  Mr.  ST.  JOHN  ask. 
ed  for  the  previous  question. 

There  was  a  second  and  main  question  or- 
dered. 

Mr.  JONES'  amendment  was  rejected — ayes  23, 
nays  73. 

The  question  was  then  taken  on  the  section,  and 
there  were — ayes  12,  nays  89C 

The  third,  fourth  arid  fifth  sections  were  then 
agreed  to,  and  the  resolution  referring  the  article, 
adopted. 

Mr.  MARVIN  desired  to  send  to  the  printer, 
with  the  other  articles  of  the  constitution,  a  cor- 
rect copy  of  his  article  on  future  amendments  of 
the  constitution,  into  which,  by  some  means  the 
error  had  occurred.  Agreed  to. 

Mr.  KENNEDY  moved  to  lay  this  order  of 
business  on  the  table.  This  motion  was  negati- 
ved. 

THE  OSWEGO  CANAL. 

Mr,  HART  offered  the  following  resolution  : 

Resolved,  That  the  committee  on  the  revision  of  the 

articles  of  the  constitution  be  instructed  to  amend  article 

5,  section  3,  by  inserting  after  the  words  "  Black  River 

canal,"  the  words  "and  the  improvement  of  the  other  state 

canals." 

Mr.  HART  said  :— I  have  prepared  this  amend- 
ment in  the  full  conviction  that  it  ought  not  to 
meet  with  opposition  from  any  quarter.  This 
Convention  have  already  made  ample  provision 
for  the  completion  of  the  Erie  canal  enlarge- 
ment and  for  finishing  the  Black  river  and  Gene- 
see  Valley  canals  ;  but  it  must  necessarily  re- 
quire for  the  completion  of  these  works  a  period 
of  perhaps  twelve  or  fifteen  years,  more  or  less  ; 
and  it  appears  to  me  unwise  to  place  in  this  con- 
stitution a  provision  which  seems  little  less  than 
an  absolute  veto  upon  air  improvements  upon  the 
other  canals  of  the  state  during  that  period,  how- 
ever important  or  necessary  for  the  interests  of 
the  state  such  improvements  may  be,  and  which 
improvements  may  require  no  very  large  sums  of 
money  for  their  accomplishment ;  and  it  will  be 
contended  that  in  such  cases  no  power  should  re- 
side in  the  legislature,  to  direct  such  improve- 
ments, without  resorting  to  extraordinary  means 
to  procure  the  necessary  funds  I  confess  my- 
self unable  to  see  either  the  justice  or  good  poli- 
cy of  such  a  course.  While  we  provide  with  a 
liberal  hand  for  part  of  the  public  works,  we 
will  not  allow  the  merest  pittance  for  others. — 
Such  action  as  this  does  not  commend  itself  to 
my  judgment  as  in  any  sense  that  even-handed 
justice  should  be  dispensed  to  all.  I  have  no  ex- 
pectation that  by  the  adoption  of  this  amend- 
ment any  essential  interference  with  the  progress 
or  completion  of  the  works  already  authorized  by 
this  Convention  \\ould  result;  and  such  interfer- 
ence is  no  part  of  my  design ;  but  I  deem  it  wise 
and  proper  that  some  discretion  should  be  left  to 
the  legislature  that  will  permit  them  to  provide 
for  cases  which  may  and  must  arise  in  the  lapse  of 
ten  or  fifteen  years,  which  no  human  wisdom  can 
now  foresee ;  and  also  to  provide  for  cases  which  it 
is  easy  to  foresee  must  and  will  arise.  These  ca- 
ses I  desire  to  place  it  in  the  power  of  the  legisla- 
ture to  provide  for,  without  compelling  them  to 


1050 


resort  to  extraordinary  means  to  secure  the  re- 
quisite funds,  tor  instance,  (lor  1  wish  to  state  my 
objec's  frankly,)  whenever  it  may  be  necessary  to 
rebuild  lock/,  aqueducts,  or  other  structures  on 
the  canals,  during  the  progress  of  the  woiks  for 
which  appropriations  have  been  made,  I  wish  to 
put  it  in  the  power  of  the  k-gislatuie,  if  in  their 
judgment  the  interests  of  the  state  and  the  neces- 
sities ot 'commerce  require  if,  to  order  such  works 
to  be  enlarged  Such  a  course  would  be  mani- 
festly required  by  true  ec  nomy,  if  I  am  right  in 
the  belief  that  several  of  the  canals  not  named  in 
this  Article,  will  eventually  be  enlarged.  I  men- 
tion the  Oswego  canal,  the  Cayuga  and  Seneca, 
and  perhaps  others.  I  have  not  the  remotest  idea 
that  these  canals  will  remain  tor  any  considerable 
time  after  the  enlargemeut  ot  the  Erie  canal  of 
their  present'  capacity  only,  this  would  involve 
the  necessity  ot  a'  trans-shipment  of  all  property 
on  arriving  at  or  leaving  the  Erie  canal,  or  what 
would  proirably  be  still  worse,  that  canal  must  be 
navigated  by  a  class  of  boats  having  only  one-ihird 
or  one-half  the  tonnage  which  that  canal  would 
permit.  It  is  well  known  that  the  Oswego  canal 
is  one  of  the  greatest  channels  of  western  com- 
merce, and  that  its  existence  creates  an  active 
competition  highly  beneficial  to  commerce,  in  foi- 
wardi>'g  property  to  and  from  New  York  to  the 
great  West.  It  enjoys  also  a  large  trade  with  Ca- 
nada West.  About  twenty-five  millions  of  lum- 
ber has  this  season  already  arrived  at  Oswego  ;  a 
large  proportion  coming  Irom  Canada,  the  tolls  at 
the  Oswego  office  amounting  annually  to  about  one 
hundred  and  seventy  thousand  dollars.  But  per- 
haps it  may  not  l>e  exactly  in  order  on  this  amend- 
ment to  discuss  the  question  of  enlargement  of 
that  work,  or  die  extent  to  which  it  should  be 
cairied  ;  permit  me,  however,  to  say  that  1  have 
no  shadow  ot  doubt,  that  its  enlargement  is  a  mere 
question  of  tune,  and  although  that  time  may  be 
somewhat  dela\ed  by  unjust  and  partial  legislation, 
the  event  is  crrtain.  All  I  expect  or  ask  to  ac- 
complish 'by  this  amendment,  is  to  leave  the  dis- 
cretion of  which  I  have  spoken  in  tne  hands  ul 
the  legislature,  where,  in  my  judgment,  it  most 
properly  belongs,  to  make  such  improvements  on 
any  of  me  state  canals,  as  in  their  wisdom  may  be 
deemed  advisable.  Under  this  amendment,  pro- 
vision might  a. so  be  made  for  completing  the  un- 
finished improvement  on  the  Oneidd  River,  and  1 
apptal  to  the  inends  of  the  cabals,  who  have  so 
strongly  and  so  successively  claimed  the  plighted 
laith  of  the  state,  to  complete  their  lavorite  works; 
and  who  refused  to  do  justice  to  this  work  on  the 
Oneida  River,  to  tell  me  whether  it  the  laith  ot 
the  state  was  solemnly  pledged  to  (hem,  it  was 
less  so  in  regard  to  this  mile  work.  1  have  only 
to  add  that  in  my  judgment  a  fair  and  consistent 
course  on  the  part  oi  me  Convention,  requires  the 
adoption  of  this  amendment ;  by  doing  which,  we 
would  at  least  recognize  the  principle  that  it  is 
not  hereafter  to  be  held  unconstitutional  to  make 
necessary  improvements  upon  :he  canals,  not  pio- 
vided  for  in  this  constitution. 

Mi.  WHITE  thought  ample  provision  had  al- 
ready been  made  tor  the  canals,  and  moved  to  lay 
the  resolution  on  the  table. 

This  was  rejected — *yes  45,  nays  48. 

Mr.  SMITH,  moved  U>  amend  by  adding  the 
words  "and  extension"  after  "improvement," 


as  to  provide   for  the  extension  of   the   Chenango 
nd  Chemnrig  canals  to  the  state  line. 

Mr  PATTERSON  urged  that  the  article  al- 
ready adopted  made  ample  provision  for  all  the 
canals 

M«*.  LOOMIS  thought  this  an  eminently  just 
and  wise  proposition.  He  would  not  tie  down  the 
surplus  revenues  specially  to  the  three  canals 
mentioned  in  the  anicle,  inasmuch  as  the  Oswego 
canal  might  in  a  few  years  become  an  important 
channel  ot  communication  with  the  Western  states. 
Certainly  he  did  not  desire  to  see  the  legislature 
prohibited  from  it  as  its  increase  of  business  might 
require. 

Mr.  CHAMBERLAIN  expressed  his  surprise 
o  see  such  a  sudden  turn  on  the  part  of  gentle- 
men  on  thi«  floor.  Such  he  regarded  to  be  the 
course  of  Mr.  L.  Mr.  C.  urged  that  nothingshould 

adopted  to  disturb  the  arrangement  which  had 
:>een  entered  into  in  regard  to  these  canals. 

Mr.  ANGEL  regretted  to  see  the  motion  made. 
This  question  had  heretofore  undergone  a  long 
discussion,  and  as  he  hoped  had  been  satisfactoral- 
ly  settled. 

Mr.  COOK  moved  to  add  to  the  amendment  of 
Mr.  SMITH,  "and  for  the  construction  of  such  ca- 
nals whose  routes  have  been  absolutely  surveyed 
t)y  the  authority  and  at  the  expense  of  the  state." 

Mr.  MARVIN  expressed  his  hope  that  this 
question  would  not  be  re-opened. 

Mr.  RUGGLES  moved  to  substitute  for  Mr. 
HART'S  amendment  as  follows — which  Mr.  HAKT 
accepted — add  after  the  word  "  completed,"  "  or 
may  in  the  discretion  of  the  legislature,  be  applied 
to  the  improvement  or  enlargement  of  the  other 
state  canals;" 

Mr.  HART  accepted  the  substitute. 

Mr.  CONELY  moved  to  add  as  follows  to  Mr. 
RUGGLES'  amendment : 

Provided  such  enlargement  and  improvement  of  any 
public  work  shall  be  in  proportion  to  the  amount  of  its 
nett  income." 

-Mr.  JONES  moved  the  previous  question. 

Mr.  MARVIN  moved  to  lay  .the  whole  subject 
on  the  table. 

Mr.  SMITH  called  for  the  yeas  and  nays,  and 
there  were  yeas  69,  nays  26. 

BILL  OF  RIGHTS. 

Mr.  AYRAULT  moved  instructions  to  the  com- 
mittee on  revision  to  incorporate  the  9th,  llth, 
12th,  15th  and  16th  sections  in  the  bill  of  rights, 
as  reported  by  Mr.  TALLMADGE,  which  provides, 
1st,  that  a  presentment  by  the  grand  jury  shall  be 
necessary  to  place  a  criminal  upon  trial.  No  per- 
son shall  be  subjected  to  a  penalty  or  loss  of  life 
without  trial,  nor  twice  put  in  jeopardy.  2d.  Pri- 
vate property  shall  not  be  taken  for  public  use 
without  compensation.  3d.  Witnesses  shall  not 
be  imprisoned  for  want  of  bail.  4th.  No  divorce 
shall  be  granted  by  the  legislature.  5th.  No  lot- 
teries shall  be  authorized  in  this-state. 

Messrs.  TALLMADGE  PERKINS,  BROWN 
and  O'CONOR  debated  this  proposition. 

Mr.  BROWN  moved  to  amend  the  motion  of 
Mr.  AYRATTLT,  by  inserting  in  one  of  the  sections 
a  provision  by  which  persons  might  be  put  upon 
trial  for  petit  larceny  without  the  intervention  of 
the  grand  jury. 

i\jr.  O'CONOR  presented  a  set  of  sections,  a- 
mended  in  several  respects  from  those  first  pro- 


1051 


posed,  and  providing  that  the  party  accusec 
crime  should  have  the  right  of  last  appeal  to 


accused  of 
the 

jury,  in  reply  to  the  counsellor  prosecution.  He 
moved  a  reference  to  a  select  committee  with  in- 
structions to  insert,  by  way  of  amending  the  reso- 
lution of  Mr.  AYRAUL.T. 

Mr.  KINGSLEY  moved  to  amend  Mr.  AY- 
RAULT'S  motion  by  adding  a  section  providing 
that  no  person  should  be  hindered  from  pursuing 
any  lawful  business. 

Mr.  AYRAULT  appealed  to  gentlemen  who 
had  proposed  amendments  to  allow  the  simple 
prepositions  which  were  contained  in  the  sections 
which  he  had  offered  to  be  referred  and  disposed 
of,  without  embarrassment.  We  had  not  time  to 
discuss  the  matters  embraced  in  the  abstract  pro- 
positions which  were  presented  in  the  motions  to 
amend. 

Mr.  STOW  moved  to  amend  the  ninth  section 
so  as  to  provide  that  no  person  shall  be  tried  with- 
out benefit  of  counsel.  In  military  trials  espe- 
cially should  the  accused  have  the  benefit  of  coun- 
sel, and  in  such  cases  he  never  had  it. 

Mr.  KIRKLAND  moved  to  refer  the  original 
proposition  and  the  amendments  to  a  select  com- 
mittee, to  report  complete  on  Monday  morning 
next.  Agreed  to. 

Mr.  CLYDE  called  up  his  resolution  offered 
yesterday,  referring  the  report  of  the  committee 
on  the  division  of  estates  in  land  to  the  select 
committee  with  instructions. 

Mr.  NICOLL  demanded  the  ayes  and  noes,  and 
the  Convention  agreed  to  consider, — ayes  66, 
noes  15. 

Mr.  CLYDE  took  the  floor,  but  gave  wav  to 

Mr  JORL  \N,  who  reported  from  the  select 
committee  resolutions  declaring  that  in  the  opin- 
ion of  the  Convention,  the  amendments  of  the 
Constitution  could  not  be  prepared  so  as  to  be 
submitted  separately.  Also  prescribing  the  form 
of  the  ballots  to  be  "No,"  and  "  Yes."  Providing 
for  the  distribution  of  20,000  copies  of  the  amend- 
ments by  the  county  clerks  ;  and  also  for  their 
publication  weekly  in  the  State  paper  until  the 
day  of  election. 

Laid  on  the  table  and  ordered  printed. 

Mr.  RUSSELL  offered  a  resolution  for  the  bind- 
ing and  distribution  of  the  journals.  Agreed  to. 

Mr.  CHATFIELD  had  leave  of  absence  for  the 
remainder  of  the  session. 

The  Convention  then  took  a  recess. 

AFTERNOON   SESSION. 

Mr.  CLYDE  addressed  the  Convention  at 
length  in  favor  of  his  motion  to  refer  the  follow- 
ing article,  reported  by  the  committee  on  the 
"  creation  and  division  of  estates  :" — 

§  I.  All  feudal  tenures  of  every  description,  with  all 
their  incidents  are  a'*>lisbed. 

^  -2.  No  lease  or  grant  oi  agricultural  land  for  a  longer 
period  tban  tenyears,  hereafter  made,  in  which  shall  be 
reserved  any  rect  or  service  of  any  kind,  shall  be  valid. 

^  3.  All  covenants  or  conditions  in  any  grant  of  land 
•whereby  the  right  ot  the  grantee  to  alien  is  in  any 
manner  restrained,  and  alt  rims  quarter  sales,  and  othj  r 
charges  upon  alienation  r.  serve  1,  in  every  grant  of  land 
hereafter  to  be  made,  shall  be  void. 

Mr.  SIMMONS  moved  to  add  to  the  first  sec- 
tion as  follows,  taken  from  the  Revised  Statutes  : 

"  Saving,  however,  all  rents  and  services  certain  which 
at  any  time  heretofore  have  been  lawfully  created  or  re- 
8  erveil." 


For  the  2d  section,  he  proposed  the  following: 

'«  All  lands  witiiin  this  State  are  declared  to  be  allodial, 

so  that,  subject  only  to  the  liability  to  escheat,  theentiie 

and   absolute  property  is  vested  in  the  owners  according 

to  the  nature  of  their  respective  estates  " 

Mr.  S.  proceeded  to  give  his  views  upon  the 
subject. 

Mr.  HARRIS  had  no  objection  to  the  amend- 
ments proposed  by  Mr.  S. 

The  first  amendment  was  agreed  to. 

Mr.  RUGGLES  wished  to  hear  from  some  gen- 
tleman, what  possible  benefit  the  provisions  of 
this  section  could  be  to  the  persons  who  dem^n- 
ded  relief.  He  believed  the  legislature  had  I  ull 
power  in  the  case,  and  there  was  no  desire  on  t  he 
part  of  any  one  to  extend  the  privileges  of  land- 
lords. He  did  not  see  that  this  section  had  any 
effect  upon  the  question  which  it  was  supposed 
to  influence  ;  and  if  it  did  change  the  relations  of 
landlords  and  tenant,  it  was  important  that  we 
should  know  what  that  change  was,  which  we 
had  not  time  to  examine  into  at  this  period  of  the 
session. 

Mr.  SIMMONS  desired  to  take  away  the  stig- 
ma of  the  name  "  feudal."  We  had  high  poei  ic 
authority  that  there  was  nothing  in  a  name ;  but 
he  thought  there  was  a  propriety  in  declaring  th  at 
"  feudal  tenures  are  abolished."  It  would  give 
a  different  character  to  the  terms  upon  which  te- 
nants occupied  their  farms  upon  the  large  manors. 

Mr.  JORDAN  thought  there  was  a  manifest 
propriety  in  the  declaration  that  "  all  feudal  te- 
nures are  abolished"  in  this  state.  It  was  true 
that  this  was  now  the  provision  of  the  statute,  but 
a  repeal  of  the  statute  would  establish  them  again. 
Put  it  in  the  constitution,  and  it  would  be  unal- 
terable. This  was  all  that  need  be  said  on  the 
first  section ;  when  the  others  came  up,  the  fri  nds 
of  the  measure  would  be  ready  to  defend  them. 

Mr.  RUGGLES  objected  only  because  the  legis- 
lature had  full  power  to  regulate  the  matter,  and 
it  was  emphatically  their  duty  to  attend  to  it. — 
There  was  no  danger  that  any  body  of  m^n  as- 
sembled as  a  legislature,  would  assume  to  take 
the  retrograde  step  of  again  establishing  feudal 
tenures.  If  this  provision  could  operate  in  any 
respect,  to  reconcile  the  tenantry,  to  the  existing 
sta.e  •  f  things,  he  would  vote  for  it  with  plea- 
suie  But  unless  they  were  led  into  some  delu- 
sion as  to  the  real  effect  of  this,  it  would  not  have 
su  h  an  influence.  And  for  the  reason  that  it 
\\ ;  s  absolutely  and  entirely  useless,  he  should 
v<  te  against  it. 

Mr.  VAN  SCHOONHOVEN  wished  to  have 
tl  is  question  fixed  beyond  the  power  of  the  legis- 
lature to  alter  it.  It  was  a  principle  which  should 
I >e  as  distinctly  asserted  in  our  fundamental  law 
.is  any  other  which  had  been  placed  there.  It 
was  one  which  had  caused  great  difficulties  in 
this  section  of  the  state,  and  he  was  desirous  that 
this:  convention,  to  which  the  people  interested 
looked  for  some  relief  in  regard  to  the  unjust  te- 
nures which  existed,  would  give  a  hearty  if  not  a 
unanimous  vote  in  favor  of  this  measure. 

Mr.  NK'OLL  thought  it  would  be  more  seem- 
ly that  this  proposition  should  be  in  a  negative 
form.  To  say  that  "  all  feudal  tenures  are  abo- 
lished," when  it  was  known  that  they  had  been 
abolished  for  fifteen  years,  appeared  to  him  but 


1052 


a  little  short  of  stultification.  Better  say  "  no 
feudal  tenures  shall  hereafter  be  established." 

Mr.  HARRIS  replied  to  Mr.  RUGGLES,  saying 
that  this  provision  would  not  deprive  any  man  of 
his  rights,  but  it  would  declare  our  absolute  de- 
termination to  uproot  all  vestiges  of  the  unright- 
eous tenures  which  have  existed  in  this  part  of 
the  state. 

Mr.  SIMMONS  moved  to  insert  "  hereby  de- 
clared to  be"  before  "  abolished."  Agreed  to. 

Mr.  JORDAN  said  there  was  a  just  feeling 
against  the  occupancy  of  farms  belonging  to  a 
lord  who  exercises  the  same  rights  over  his  te- 
nants as  a  lord  in  England,  and  holds  on  to  his 
lands  merely  from  the  pride  of  being  the  lord 
over  the  manor.  These  were  rights  reserved  to 
the  owners  after  the  revolution  because  it  was 
private  property.  But  they  were  inconsistent 
with  the  spirit  of  our  republican  institutions,  and 
should  be  abolished.  It  was  not  proper  to  give 
the  cold  shoulder  to  these  tenants  and  tell  them 
to  go  about  their  business,  because  their  requests 
were  mere  folly  ;  they  had  these  feudal  tenures 
already  abolished,  and  we  had  no  fear  that  the 
legislature  would  ever  revive  them.  '  He  wished 
it  to  be  placed  in  the  constitution  beyond  the 
power  of  the  legislature  to  touch  it.  It  would 
nave  some  effect  to  allay  that  natural  spirit  of  op- 
pugnation  to  the  idea  of  living  upon  a  farm  held 
under  these  tenures,  whose  owner  has  a  right  to 
say  "  you  owe  me  a  day's  riding,  and  you  must 
pay  it,"  not  because  he  has  any  need  of  the  ser- 
vice, but  because  he  has  some  pride  in  displaying 
his  authority,  and  some  pride  in  having  it  to  say 
"  I  am  the  lord  of  this  broad  domain  !"  We  wish 
to  have  these  tenures  and  their  incidents  abolish- 
ed, and  constitutionally  abolished.  He  would 
not  have  a  man  released  from  paying  his  rent 
when  he  legally  owed  it,  unless  he  could  get  re- 
leased from  it  in  a  lawful  way.  The  payment  of 
rent  was  not  what  was  complained  of.  He  gave 
some  instances  of  the  terms  of  leases  in  which 
the  tenant  was  obliged  to  get  permission  in  writ- 
ing if  he  entertained  a  stranger  in  his  house  for 
twenty-four  hours ;  that  he  should  trade  in  no- 
thing else  than  the  produce  of  the  manor  ;  that  he 
should  trade  at  the  store  and  grind  his  flour  at 
the  mill  of  the  proprietor,  &c.,  &c.  It  was  from 
such  things  that  relief  was  asked;  which,  al- 
though the  moral  sense  of  the  community  will 
not  admit  to  be  enforced,  are  still  actually  in  ex- 
istence. 

Mr.  BERGEN  moved  the  previous  question, 
and  there  was  a  second. 

The  first  section  as  amended  was  agreed  to,  as 
follows  :— ayes  83,  nays  12. 

The  proposition  of  Mr.  SIMMONS  for  the  2d 
section  was  agreed  to,  without  a  division,  after 
debate  by  Messrs.  SIMMONS  and  RUGGLES. 

The  3d  section  was  read,  and  Mr.  WHITE  mov- 
ed to  strike  out  "for  a  longer  period  than  ten 
years."  Lost. 

Mr.  NICHOLAS  moved  to  strike  out  the  sec- 
tion. 

Mr.  STOW  moved  to  amend  it  by  striking  out 
"ten"  and  insetting  "twenty-one,"  so  that  infants' 
estates  may  be  leased  during  their  entire  minority. 
Agreed  to. 

Mr.  VAN  SCHOONHOVEN  moved  a  recon- 
sideration. 


Mr.  HARRIS  said  he  should  feel  obliged  to  vote 
against  the  section,  because  of  the  amendment 
adopted  with  so  much  haste  upon  the  motion  of 
the  gentleman  from  Erie.  If  the  proprietors  of 
the  lands,  whose  leases  are  about  falling  in,  should 
be  allowed  to  release  for  the  term  of  twenty-one 
years,  it  would  answer  their  purpose  about  as 
well  as  the  present  system. 

Mr.  RUSSELL  voted  against  the  amendment, 
but  he  should  vote  for  the  section,  hoping,  upon 
a  reconsideration  on  Monday,  to  restore  it  to  its 
original  form. 

Mr.  HARRIS  thought  the  argument  from  the 
gentleman  from  Erie  should  have  no  influence 
upon  this  question,  which  affected  the  interests 
of  thousands  of  the  people  in  this  vicinity,  while 
there  would  be  few  instances  where  infants  would 
be  injured  by  the  provision. 

Mr.  BRUNDAGE  moved  to  insert  after  "years" 
the  words  "or  natural  life  of  the  grantee."  There 
might  be  many  instances  in  which  indigent  per- 
sons migh  obtain  a  comfortable  home  for  the  term 
of  his  natural  life  through  the  benevolence  of 
some  friend.  He  should  not  be  deprived  of  such 
a  benefit. 

Mr.  BROWN  had  voted  against  the  first  section 
not  because  he  was  unfriendly  to  the.  principle, 
but  because  he  regarded  it  as  a  humbug  to  incor- 
porate in  the  constitution  a  provision  for  which 
there  was  not  the  least  necessity.  But  we  were 
now  called  upon  to  abridge  an  important  right,  to 
deprive  him  (Mr.  B.)  from  leasing  his  property 
for  21  years,  if  he  had  an  opportunity.  It  was  in 
direct  opposition  to  the  great  principle  which 
had  animated  all  the  people  of  this  country,  that 
of  the  free  right  of  alienation'  of  property.  It  was 
a  wild  project  which  no  man  in  his  senses  out  of 
an  Anti-rent  district,  would  for  a  moment  think 
of.  It  could  do  no  benefit  to  any  person,  and 
might  work  the  greatest  injury  to  every  part  of 
the  state.  No  such  provision  could  get  his  vote. 

Mr.  CLYDE  thought  the  term "  humbug," 
which  the  gentleman  applied  to  the  proposition 
which  had  been  adopted,  would  belong  to  him- 
self when  he  asserted,  after  his  remarks  upon  this 
proposition,  that  he  was  in  favor  of  granting  any 
kind  of  relief  to  the  tenants  on  these  manors,  and 
that  he  was  strongly  enlisted  in  their  favor.  He 
went  on  to  show  that  these  21  year  leases  were 
much  worse  than  leases  for  life  ;  for  after  the  te- 
nant had  spent  years  in  its  improvement,  he  would 
be  subject  to  an  ejectment. 

Mr.  WATERBURY  continued  the  debate,  in 
opposition  to  any  law  which  recognised  two  clas- 
ses in  society. 

Mr.  NICOLL  said  there  were  lands  in  the  vi- 
cinity of  New  York  and  other  large  cities  which 
were  rented  for  agricultural  purposes,  for  a  long 
term  ;  and  if  the  terms  of  the  lease  were  short- 
ened they  would  be  used  for  building  lots,  thus 
throwing  out  of  any  occupation  those  who  tilled 
them.  He  would  amend  the  section  as  it  stood, 
by  limiting  its  provisions  to  a  certain  quantity, 
say  25  acres,  to  meet  these  particular  cases. 

Mr.  WORDEN  followed,  saying  that  it  had  al- 
most become  a  recognised  principle  in  Western 
New  York  that  agricultural  lands  should  not  be 
leased  for  a  longer  term  than  5  years. 

Mr.  LOOMIS  continued  the  debate,  stating  his 
purpose  to  move  to  strike  out  the  word  "  agricul- 


1053 


tural."  He  knew  no  reason  why  this  provision 
should  applv  to  the  country  more  than  to  cities 
Mr.  HARRIS  replied  to  Mr.  BROWN  and  Mr, 
LOOMIS.  He  contended  that  it  was  a  principle 
of  political  economy  that  there  should  be  no  more 
restrictions  placed  upon  the  alienation  of  real  es- 
tate than  upon  personal  estate.  Property  was  im- 
proved by  passing  from  hand  to  hand.  When  a 
man  owned  the  land  he  cultivated  he  would  fine 
it  to  his  interest  to  add  to  its  wealth.  This 
inducement  was  not  found  where  these  long  leas- 
es existed,  and  the  lands  were  consequently  in- 
differently improved. 

Mr.  KIRKLAND  followed  on  the  same  side  of 
the  question.  He  believed  that  these  tenures 
were  disastrous  to  agriculture  and  .the  best  inte- 
rests of  the  state.  They  also  tended  to  degrade 
the  character  of  the  tenants.  This  was  an  opinion 
which  he  had  formed  long  before  anti-rentism 
was  thought  of.  He  would  not  for  any  human 
inducement  violate  the  right  of  a  single  individu- 
al ;  but  he  believed  that  the  interests  of  the  state 
would  be  advanced,  and  the  character  of  humani- 
ty elevated  in  the  instance  of  hundreds,  without 
the  slightest  injury  to  any  one,  by  the  adoption 
of  some  principle  whicxh  should  induce  the  land- 
lords to  part  with  their  lands  to  those  who  occu- 
pied and  tilled  them.  He  proposed  to  amend  by 
inserting  "  ten"  in  place  of  "  twenty-one,"  and 
inserting  a  clause  providing  for  the"  case  of  in- 
fants' estates. 

Mr.  HOFFMAN  submitted  that  nothing  could 
be  a  more  flagrant  violation  of  sound  policy  than 
to  adopt  the  principle  as  its  friends  desired  to 
have  it  put*.  The  limitation  would  not  affect 
the  few  who  owned  the  land,  so  much  as  it  would 
the  millions  who  are  yet  to  be  born,  and  born 
poor  as  they  must  be.  They  must  either  remain 
day  laborers  from  the  cradle  to  the  grave,  or  be- 
come the  miserable  tenants  of  land  for  seven  or 
ten  years — when  property  becomes  as  dear  in  all 
parts  of  the  state  as  it  is  now  in  some. 

Mr.  BROWN  said  there  was  no  people  in  any 
portion  of  the  state  who  felt  more  acutely  the 
hardships  of  these  tenants  upon  the  manors  than 
his  constituents;  and  if  there  was  any  mode, 
short  of  the  abrogation  of  the  great  principles  up- 
on which  the  government  was  founded,  by  which 
they  might  be  relieved,  they  would  be  ready  to 
be  adopted.  But  in  his  opinion,  there  was  no 
such  mode. 

Mr.  BASCOM  moved  to  adjourn.     Lost,  28  to 

Mr.  SWACKHAMER  moved  the  previous 
question,  and  there  was  a  second. 

The  amendment  of  Mr.  BRUJVDAGE  was  nega- 
tived. 

AYES— Messrs.  Brundage,  Hoflman,  W.  H.  Spencer 
Taggart  NOES-76. 

Mr.  HARRIS  moved  to  strike  out  "  twenty- 
one"  and  insert  "  twelve."  Agreed  to — ayes  46, 
nays  35. 

The  section,  as  amended,  was  agreed  to,  as  fol- 
lows :  Ayes  46,  nays  33. 

Mr.  SWACKHAMER  moved  to  adjourn.— 
Agreed  to,  41  to  30. 


MONDAY,  (IQQth  day,)  Oct.  5. 
Prayer  by  the  Rev.  Mr.  CLAPP. 
Mr.  PERKINS  moved  that  the  special  order  of 


the  day  be  laid  on  the  table  until  half  past  nine. 
Agreed  to. 

Mr.  ARAULT,  from  the  select  committee  ap- 
pointed on  Saturday,  reported  the  following  sec- 
tions and  moved  their  reference  to  the  committee 
on  revision,  with  instructions : 

§  1.  No  member  of  this  state,  shaiJ  be  disfranchised,  or 
deprived  of  any  of  the  rights  or  privileges  secured  to  any 
citizen  thereof,  unless  by  the  law  of  the  land. 

§  2.  The  trial  by  jury,  in  all  cases  in  which  it  has  been 
heretofore  used,  shall  remain  inviolate  forever,  and  shall 
be  secured  in  like  cases  arising,  in  any  new  court  or  pro 
ceeding  hereafter  instituted  or  authorized.  Eut  a  jury 
may  be  waived  by  the  parties  in  all  civil  cases,  in  the  man. 
nef  to  be  prescribed  by  law. 

$)  3.  The  privilege  of  the  writ  of  habeas  corpus,  shall 
not  be  suspended,  unless  when  in  cases  of  rebellion,  or 
invasion,  th«  public  safety  may  require  its  suspension. 

§  4.  No  person  shall  be  held  to  answer  for  a  capital  or 
otherwise  infamous  crime,  unless  on  presentment  or  in- 
dictment of  a  grand  jury,  except  in  cases  of  impeachment, 
and  in  cases  arising  in  the  militia  when  in  actual  service, 
and  in  the  land  and  naval  forces,  in  time  of  war,  or  which 
this  state  may  keep,  with  the  consent  of  Congress,  in  time 
of  peace;  and  in  cases  of  petit  larceny  under  the  direction 
of  the  legislature. 

§  5.  No  person  shall  be  subject,  to  be  twice  put  in  jeo- 
pardy for  the  same  offence;  nor  shall  any  person  be  com- 
pelled to  be  a  witness  against  himself,  in  any  case,  to  sub- 
ject himself  to  any  criminal  punishment,  or  to  any  penalty 
or  forfeiture,  or  any  loss  or  deprivation,  in  the  nature  of  a 
penalty  or  forfeiture,  or  be  deprived  of  life,  liberty,  or  pro- 
perty without  process  of  law. 

Jo.  In  any  trial  in  any  court  whatever,  the  party  accu- 
shall  be  allowed  to  appear  and  defend  in  person,  and 
with  counsel. 

§  7.  Excessive  bail  shall  not  be  required,  nor  excessive 
fines  imposed,  nor  shall  cruel  and  unusual  punishments  be 
inflicted. 

§  8.  No  law  shall  be  passed  abridging  the  right  of  the 
people  peaceably  to  assemble,  and  to  petition  the  govern- 
ment, or  any  part  thereof;  nor  shall  any  divorce  be  grant- 
ed, otherwise  than  by  due  judicial  proceedings;  nor  shall 
any  lottery  hereafter  be  authorised,  or  any  sale  of  lottery 
tickets  allowed,  within  this  state. 

^  9.  No  law  shall  be  passed  requiring  the  inspection, 
measuring,  guaging,  weighing  or  culling,  of  any  commo- 
dity as  a  condition  of  individual  dealing  therein;  nor  shall 
any  office  be  created  or  continued  tor  that  purpose. 

10.  No  private  property  shall  be  taken  lor  public  use 
without  just  compensation;  when  private  property  shall 
t>e  taken  for  public  use,  other  than  that  of  the  whole  state, 
:he  compensation  to  be  made  therefore  shall  be  determined 
by  a  jury,  or  by  not  less  than  three  commissionersj  ap- 
pointed by  a  court  of  record,  as  shall  be  prescribed  by 
law.  Private  roads  may  be  opened  in  a  manner  to  be  pre- 
scribed by  law;  but  in  every  case  the  necessity  of  the  road 
and  the  amount  of  all  damage  to  be  sustained  by  the  open- 
ing  thereof,  shall  be  first  determined  by  a  jury  of  free-hold- 
ers, and  such  amount,  together  with  the  expenses  of  the 
iroceedings,  paid  by  the  person  to  be  benefited. 

§  11.  The  free  exercise  and  enjoyment  of  religious  pro- 
"esdon  and  worship,  without  discrimination  or  preference, 
shall  forever  be  allowed  in  this  state,  to  all  mankind;  and 
no  man  shall  be  deprived  of  any  right,  or  rendered  incom- 
>etent  to  be  a  witness  on  account  of  his  opinions  on  mat- 
ers  of  religious  belief.  But  the  liberty  of  conscience 
icreby  secured,  shall  not  be  so  construed  as  to  excuse 
acts  of  licentiousness,  or  justify  practices  inconsistent 
with  the  peace  or  safety  of  this  state. 

Mr.  MURPHY  moved  to  postpone  the  conside- 
ration of  this  report  until  that  of  the  committee 
on  revision  was  taken  up.  Agreed  to. 

Mr.  MURPHY  moved  that  the  committee  on 
evision  be  instructed  to  incorporate  in  the  consti- 
tution the  report  of  the  majority  on  municipal 
corporations 

Mr.  STOW  moved  to  lay  the  resolution  on  the 
table,  and  that  the  Convention  proceed  lo  take  up 
the  report  on  the  Elective  Franchise, 

On  this  motion  Mr.  MURPHY  demanded  the 
ayes  and  noes,  and  it  was  negatived,  42  to  54.  » 


1054 


The  report  on  MUNICIPAL  CORPORATIONS 
was  then  taken  up. 
The  first  section  was  read,  as  follows: 

§  1.  Private  property  shall  not  be  taken  for  improvements 
in  cities  and  villages,  unless  the  compensation  therefor 
shallt  e  first  determined  before  a  judicial  tribunal  by  a  jury 
of  twelve  freeholders  of  the  city  or  village  where  the 
same  shall  be  situated,  who  shall  be  chosen  and  qualified 
as  jurors  in  civil  cases. 

Messrs.  STOW,  MURPHY,  KIRKLAND,  SIM- 
MONS  and  VAN  SCHOONHOVEN  debated  the 
proposition. 

Mr.  VAN  SCHOONHOVEN  moved  to  strike 
out  "cities  and  villages,"  so  as  to  make  the  pro- 
vision general.  Agreed  to. 

And  the  section  as  amended  was  adopted. 

The  hour  of  half  past  nine  was  here  announced 
by  the  PRESIDENT. 

Mr.  NICOLL  moved  that  the  amended  Consti- 
tution be  engrossed  upon  parchment,  for  the  sig- 
nal ires  of  members,  under  the  direction  of  a  se- 
lect committee  of  two.  Agreed  to. 

Mr.  S WACKHAMER  moved  that  the  commit- 
tee of  revision  be  instructed  to  engrafr  a  provision 
against  the  disinterment  of  the  dead.  Objected  to. 

Several  members  were  allowed  to  record  their 
votes  upon  the  question  last  taken  on  Saturday 
evening. 

REVISED  CONSTITUTION. 

The  report  of  the  committee  on  revision  was 
taken  up,  pursuant  to  order. 

Mr.  O'CONOR  moved  that  the  report  of  Mr. 
AYRATJLT  made  this  morning,  be  first  considered. 

Mr.  PATTERSON  objected.  The  latter  re- 
port had  been  thrown  upon  us  this  morning,  and 
we  had  no  opportunity  to  examine  it.  The  re- 
port of  the  committee  on  revision  had  been  before 
us  for  several  days. 

Mr.  HOFFMAN  agreed  with  Mr.  P.  The  on- 
ly safety  was  in  adhering  to  what  had  been  done, 
and  not  attempt  to  substitute  galvanized  matter 
at  the  close  of  the  session. 

Mr.  O'CONOR  said  the  report  of  the  select 
committee  embraced  in  it  several  propositions 
which  had  been  passed  upon  by  the  deliberate 
action  of  the  Convention.  As  regarded  some 
new  matters  which  it  contained,  he  probably 
should  agree  with  the  gentleman  from  Herkimer 
in  striking  it  out.  The  article  brought  in  by  the 
committee  on  revision  contained  only  the  provi- 
sions of  the  old  Constitution,  together  with  the 
married  women  matter,  in  regard  to  which  they 
were  instructed. 

Mr.  WORDEN  thought  it  unwise  now  to  cut 
loose  from  the  settled  order  of  the  day.  We 
should  be  at  sea  again,  under  such  a  course,  and 
no  one  could  tell  where  we  would  land. 

Mr.  SIMMONS  concurred  in  this  opinion. 

The  PRESIDENT  decided  that  the  subjects 
upon  which  the  Convention  had  heretofore  finally 
acted  upon,  were  not  now  open  to  amendment, 
in  considering  the  report  of  the  committee  of  re- 
vision, without  a  reconsideration  of  the  several 
votes.  The  amendments  proposed  by  the  select 
committee  on  rights  and  privileges  were  in  order, 
but  none  other. 

After  some  discussion  upon  this  point,  the  re- 
vised Constitution  was  taken  up,  and  the  PRE- 
AMBLE thereto  was  read  as  follows  : 

"  WE  THE  PEOPLE  of  the  State  of  New- York,  grateful  to 


Almighty  GOD  for  our  Freedom,  in  order  to  secure  its  bles- 
sings, Do  ESTABLISH  this  Constitution." 

Mr.  SIMMONS  thought  it  too  narrow.  We 
established  the  Constitution  for  something  besides 
FREEDOM.  If  that  term  was  to  be  enlarged  to 
mean  all  other  rights  which  fell  within  the  pro- 
tection of  government,  it  was  all  right ;  but  that 
was  something  new. 

Mr  TALLMADGE  moved  to  strike  put  this 
preamble,  and  insert  that  of  the  old  Constitution, 
as  follows : — 

"  We.  the  People  of  the  Stateof  New  York,  acknowledge 
with  gratitude  the  grace  and  beneficence  of  (JOD,  in  per- 
mitting us  to  make  choice  oi  our  form  of  government,  do 
establish  this  Constitution." 

Messrs.  SWACKHAMER,  HOFFMAN,  DA- 
NA and  CROOKER  discussed  this  proposition. 

Mr.  KIRKLAND  moved  the  previous  question  ; 
we  had  no  time  to  waste  upon  this  unimportant 
matter.  There  was  a  second. 

The  amendment  was  negatived. 

Mr.  MURPHY  demanded  the  ayes  and  noes 
upon  agreeing  to  the  preamble  as  reported,  and 
it  was  adopted  unanimously — ayes  111. 

The  first  section  was  read  as  follows  : 

5j  1  No  member  of  this  State  shall  be  disfranchised,  or 
deprived  of  any  of  the  rights  or  privileges  secured  to  any 
citizen  thereof,  unless  by  the  law  of  the  land,  or  the  judg- 
ment of  his  peers. 

The  section  was  agreed  to  nearly  unanimously. 

The  second  section  of  the  report  was  read,  as 
follows : — 

§  2.  The  right  of  trial  bv  jury  in  all  cases  in  which  it  has 
been  heretofore  used,  shall  remain  inviolate  forever. 

Mr.  O'CONOR  moved  to  strike  it  out  and  in- 
sert the  second  section  of  the  select  committee. 
[Report  of  Mr.  AYRAULT.] 

This  was  debated  by  Messrs.  O'CONOR,  MUR- 
PHY, HOFFMAN,  RUSSELL,  SIMMONS, 
STOW  and  PATTERSON. 

Mr.  PATTERSON  moved  to  amend  by  striking 
out  the  section  and  inserting  as  follows  : 

'  The  right  of  trial  by  jury  shall  remain  inviolate." 

Mr.  HAWLEY  moved  the  previous  question. 
Seconded. 

Mr.  MURPHY  called  for  a  division  of  the  ques- 
tion, and  the  words  following  are  rejected  :  "And 
shall  be  recovered  in  like  cases  in  any  new  court 
or  proceeding  hereafter  instituted  or  auth.or.ized." 

The  following  words  were  agreed  to  :  "  But  a 
jury  trial  may  be  waived  by  the  parties  in  all  civil 
cases  in  the  manner  to  be  prescribed  by  la\\." 

Mr.  O'CONOR  asked  unanimous  consent  to 
strike  out  "in  which  it  has  been  heretofore  used." 
Oojecled  to. 

The  ayes  and  noes  were  called  upon  agreeing  to 
the  sec' ion  as  amended,  and  it  was  agreed  to,  107 
to  2 — Messrs  CORNELL  ai  d  FORSYTH. 

The  third  section  was  read,  as  ioilows  : 

§  3.  The  free  exercise  and  enjoyment  of  religious  profes- 
sion and  worship,  without  discrimination  or  preference, 
shall  forever  be  allowed  in  this  state  to  all  mankind;  but 
thr-  liberty  of  conscience  hereby  secured  shall  not  be  so 
construed  as  to  excuse  acts  of  licentiousness,  or  ju-tify 
practices  inconsistent  with  the  peace  or  salety  of  this  state. 

Mr.  HARRIS  moved  to  amend  by  inserting  alter 
"  mankind,"  as  follows: 

"And  the  Legislature  shall  provide  by  law  for  the  effec- 
tual protection  ot  the  rights  of  conscience,  so  that  in  the 
exercise  thereof,  no  person  shall  sailer  in  person  or  estate." 

Mr.  STOW  thought  it  unsafe  to  attempt  to  reach 


1055 


in  the  Constitution  such  isolated  and  particular 
cases.  By  this  provision,  seels  might  he  given 
the  same  right*  which  are  here  sought  to  be  ex- 
tended to  seventh  Day  Bdptiets,  so  that  the  gov. 
ernnient  might  be  prevented  from  being  carried 
forvuird.  Every  day  of  the  week  might  be  made 
sacred  by  the  tenets  of  different  creeds. 

Messrs.  SIMMONS  and  PERKINS  continued 
the  debate. 

Mr.  HARRIS  paid  that  there  was  rnt  much  use 
in  declaring  in  the  constitution  that  the  liberty 
of  conscience  should  be  secured,  unless  it  was 
provided  that  the  laws  should  not  affect  the  rights 
of  conscience  to  persons  like  the  Seventh  Day 
Baptists,  who  are  persecuted  by  those  who  are 
opposed  to  their  belief,  by  making  their  process  of 
law  returnable  on  the  day  which  they  consider 
sacred. 

Mr.  ANGEL  thought  they  could  not  do  any- 
thing more  mischievous  than  to  give  power  to  the 
legislature  to  legislate  on  the  subject  of  religion. 
All  should  be  protected  and  contribute  alike,  and 
he  thought  the  article  as  it  stood  would  answer 
every  purpose. 

Mr.  VAN  SCHOONHOVEN  thought  there 
was  no  danger  to  be  apprehended  if  they  should 
pass  this  amendment.  The  conscience  of  all 
should  be  protected  alike.  He  alluded  to  the 
sacrifices  which  quakers  make,  suffering  their 
property  to  be  taken  to  preserve  their  conscien- 
ces, and  this  afforded  evidence  of  their  sincerity, 
and  entitled  them  to  consideration. 

Mr.  TAGGART  moved  the  previous  question, 
and  there  was  a  second,  &c.,  and  the  amendment 
of  Mr.  HARRIS  was  negatived — ayes  32,  noes  68. 
Mr.  T.-vGG.-.RT  proposed  to  add  the  following 
Words — ''and  no  pt-rsou  shall  he  rendered  incoii 
petent  to  be  a  witness  on  account  of  his  opinions 
in  matters  of  religious  belief."  Mr.  T.  buefly 
sustained  his  amendment. 

Mr  SIMMONS  considered  this  to  be  a  most  dan- 
gerous proposition.  The  only  individuals  now  ex- 
cluded from  giving  testimony,  were  those  who  de- 
nied ihe  existence  ot  a  supreme  being,  and  the 
moral  power  of  the  government  to  punish  false 
swearing. 

Mr.  LOOM  IS  regarded  the  usages  of  the  courts 
in  excluding  witnesses  for  ifligious  opinions  as 
entirely  contrary  to  the  freeoom  oi  con>cience — 
He  considered  it  also  as  doing  injustice  to  the 
ritiht-  of  parlies  in  suits.  He  considered  it  an;ila. 
g  us  to  the  principle  of  excluding  slaves  i'iorn  tes- 
t  Iving,  no  matter  whether  the  crime  woscommil- 
t-d  HI  his  presence.  He  desired  to  see  man  only 
accountable  to  G  id  for  his  religious  opinions. 
Mr.  SIMMONS:  Why  no«  abolish  official  <vUhs 
Mr.  LOOMIS :  I  would  do  it.  He  did  not  ap- 
prehend that  this  Convention  would  do  it  howev- 
er— they  perhaps  had  not  given  sufficient  atten- 
tion to  it.  They  were  doing  it  in  England. 

Mr.  STOW  did  not  acknowledge  the  capacity 
of  any  earthly  tribunal  to  determine  the  question 
as  to  what  constituted  a  man's  accountability  to 
this  duty.  It  was  not  left  for  human  beings  to  de- 
cide. 

Mr.  SIMMONS  :  Has  any  ereat  danger  result- 
ed from  it  heretofore. 

Mr.  STOW  had  seen  great  conflicts  in  the  courts 
on  the  subject.  This  he  desired  to  avoid  hereaf- 
ter. The  general  moral  deportment  of  the  man 


might  be  a  better  evidence  of  his  belief  in  the 
existence  of  the  Deity,  than  in  the  mere  expres- 
sion of  his  religious  expeiience,  These  qualifi- 
cations were  not  required  in  the  case  of  a  man 
assuming  an  official  station.  Again  he  did  not 
vish  to  let  the  laws  recognize  that  there  might 
)e  even  a  doubt  as  to  the  existence  of  a  Deity. — 
The  asking  of  such  a  question  implied  such  a 
doubt. 

Mr.  TAGGART  further  sustained  this  amend- 
ment. 

Mr.  MURPHY  moved  to  add  at  the  end  of  the 
ection  "  but  evidence  may  be  given  as  to  the  be- 
ief  and  disbelief  of  a  witness  in  the  obligations  of 
an  oath,  and  the  grounds  for  such  belief  and  dis- 
Delief  in  order  to  enable  the  jury  to  judge  of  his 
credulity." 

Mr.  JONES  asked  for  the  previous  question. 
There  was  a  second  and  the  previous  question  or- 
dered. 

Mr.  MURPHY'S  amendment  was  rejected.— 
Ayes  12,  nays  92. 

Mr.  TAGGART'S  amendment  was  adopted.— 
Ayes  53,  nays  46. 

The  section  as  amended  was  then  adopted  : 

The  fourth  .section  was  then  read  as  follows : — 

)  4.  And  whereas,  the  ministers  of  the  Gospel  are  by 
their  profession,  dedicated  to  th«  service  ol"  God,  and  the 
care  of  souls,  and  ought  not  to  be  diverted  from  the  great 
duties  of  their  functions;  therefore,  no  minister  of  the 
Gospel,  or  priest  of  any  denomination  whatsoever,  shall 
at  any  time  hereafter,  under  any  pretence  or  description 
whatever,  be  eligible  to,  or  capable  of,  holdiiig  any  civil 
or  military  office  or  place  within  this  State. 

Mr.  RUSSELL  moved  to  strike  out  the  section. 

Mr.  RUSSELL  asked  for  ihe  previous  question. 
There  was  a  second  and  the  main  question  ordered. 

The  section  was  stricken  out — ayes  77,  nays 
33— as  follows  : 

AYES-  Messrs.  Archer,  Ayrault,  F.  F.  Backus,  H.  Back- 
us, Baker,  Bascom,  Bergen,  Bowdish,  Bray  ton,  Brown, 
Bruce,  Bull,  Burr,  Cambieleng,  Candee,  Clark,  Conely, 
Cook.  Dana,  Flanders,  Forsyth,  Greene,  Harris,  Hart, 
Hoft'man  ,  Hotchkiss,  Hunt,  A  Huntington,  E.  Huntington, 
Hyde,  Jones,  Kernan,  Kingsley,  Loomis,  Mann,  McNitt, 
M'arvin,  Maxwell,  Mum  o,  Murphy,  Nellis,  Nicholas,  Ni- 
coll,  O'Conor,  Parish,  Patterson,  Perkins,  Rhoades,  Rich- 
mond, Ruggles,  Russell,  Salisbury,  SaiJord,  Seats,  Shaver, 
Simmons,  Smiih,  E.  Spencer,  Stephens,  Stetson,  Swack- 
hamer,  Talt,  Taggart,  J.  J  Tayl  >T,  Townsend,  Tuthill, 
Van  Schoonhoven.  Waterbury,  White,  \\  illard.  \Vorden, 
A.  Wright,  W.  B.Wright,  Yawger,  Young,  Youngs — 77. 

NOES— Messrs.  Allen,  Angel,  Brundage,  Clyde,  Cornell, 
Crooker,  Cuddeback.  Danfortb,  Dorlon,  Dubois,  Giaham, 
Harrison,  Hutchmson,  Kenible,  Kennedy.  Kirkland,  Mc- 
Niel,  Miller,  Morris,  Penniman,  Powers,  President,  Riker, 
St  John,  Shaw,  W.  H  Spencer,  Stanton,  Stow,  Tallmadge, 
W*rd,  Warren,  Wood,  Chamberlain-33. 

Mr.  STOW  moved  a  reconsideration,  and  de- 
sired to  have  it  taken  up  now.  He  wished  to  say 
that  he  would  give  this  privilege  to  the  clergy  if 
they  desired  it,  but  in  his  neighborhood  they  did 
not. 

After  a  brief  conversation,  he  withdrew  the 
motion. 

Mr.  RICHMOND  offered  the  following  as  an 
additional  section.  He  wished  to  put  all  citizens 
on  the  same  footing : 

"  No  laws  shall  ever  be  passed  exempting  ministers  of 
the  gospel  from  taxation." 

After  a  conversation,  and  the  previous  ques- 
tion had  been  moved, 
Mr.  RICHMOND  withdrew  his  motion. 


1056 


Mr.    SWACKHAMER  offered  the    following!  opened,  the  public  shall' have  the   right  of  wav  " 
as  a  separate  section :  Lost. 

Every  qualified  elector,  not  excluded  by  virtue  of  hold-        Mr.    JONES    moved    the    previous   Question 
ing  any  other  office,  shall  be  eligible  to  any  elective  office   There  was    a  second   and  the  main  question   or- 
dered 

JJr.  BAKER  moved  the  previous  question.  Mr.  COOK'S  amendment  was  rejected. 

Mr.  MURPHY  insisted  that  the   motion  to  lay       Mr.  FORSYTH   moved  to   add  as  follows-— 
on  the  table  was  not  m  order,  the  previous  ques-   «  But  such  compensation  shall  in  no  case  be  re- 

t10™ haS1*ni-Snen  a?     KA        ^       11  f    ^  duced  b>'  an^  all°wance  or  prospective  benefits." 

Mr.  BAKER;     I  withdraw  the  call  for  the  pre-       Mr.  MURPHY  sustained  the  amendment 

V1™S  SSSSSfcrrtr  /  •      i*  INT  Mr>  RH°ADES  opposed  the  amendment. 

Mr.  KENNEDY  (simultaneously :)    I  move  to       Mr.  NICHOLAS  called  for  the  previous  ques- 

lay ?n  ^^fewun  *•  tion"     There  was  a  second  and  the  main  question 

The  PRESIDENT  put  the  question  on  the  mo-   ordered,  and  the   amendment  was  negatived- 

tion  of  Mr.  KENNEDY,  and  it  was  carried.  ayes  37,  noes  82. 

The  5th   (now  4th)   section  was  then  read,  as       Mr.  LOOMIs' moved  to  insert  after  the  words 

follows  :                                                                          »  private  roads"   the  following—"  with   right  of 
-    The  privilege  of  the  writ  of  habeas  corpus  shall    way  to  the  public  over    the   same" and  also   to 

to  be  benefited"  and  insert 
It  was  adopted  nem.  con.  e(j  bv  jaw  » 

The  6th  section  was  then  read  as  follows  :  The  first  amendment  was  rejected-ayes   16, 

^6.  No  person  shall  be  held  to  answer  for  a  capital  or    noes  84. 

otherwise  infamous  crime,  (except  in  cases  of  impeach-       Mr.  LOOMIS  withdrew  the  remaining  amend- 
ment, and  in  cases  arising  m  the  militia  when  in  actual  ser-    ment 
vice,  and  in  the  Innd  and  naval  forces,  in  time  of  war,  or        ,  ,  '  i\,rr»-DT>Tc< 

which  this  state  may  keep,  with  the  consent  of  Congress  in        Mr.  MUKKlb  moved  to    strike    out  the    words 
time  of  peace;  and  in  cases  of  petit  larceny  under  the  dis-    "  other  than  that  of  the  whole  state." 
cretion  of  the  legislnture;)  unless  on  presentment  or  in-  Mr.     CHAMBERLAIN     moved 

dictmentofagiand  jury,  and  in   every  trial  on  impeach-     A0-rPPrl  tn 
ment  or  indictment,  the  party  accused  shall  be  allowed  to    ^6iet 
appear  and  defend  in  person,  and  with  counsel.    No  per- 
son shall  be  subject  to  be  twice  put  in  jeopardy  for  the  AFTERNOON  SESSION, 
same  offence;  nor  shall  he  be  compelled  in  a  criminal  case         -php  arnpnrlmpni-  r>f  Mr 
to  be  a  witness  against  himself,  in  any   case,   nor   be  de-  L ,   L  *  M,r'   , 
pnved  of  life,  liberty  or  property,  without  due  process  of   tne  words      other  than  thlt    of  the    state,"   after 
law;  nor  shall  private  property  be  taken  for  public  use,    some  conversation,  was  lost, 
without  just  compensation.                                                  Mr.  STOW  proposed  to  amend  so  that  the  se- 

Mr.  KIRKLAND  proposed  the  following  sub-  cond  clause  would  read  "  when  private  property 
stitute :  shall  be  taken  for  any  public  use,  the  compensa- 

When  private  property  shall  be  taken  for  any  public  tion  therefor,  if  not  to  be  made  by  the  state,  shall 
use,  other  than  that  ol  the  state,  the  compensation  to  be  be  ascertained  by  a  jury,"  &c.  Agreed  to. 
made  therefore,  shall  be  ascertained  by  a  jury,  or  by  not  ]yjr>  BERGEN  movect  to  amend  by  striking  out 
cord,  as^ha^l  be°prescribed  by  tew™  Private  roads °may  "  bv  a  court  of  record,"  so  that  the  appointment 
be  opened  in  the  manner  to  be  prescribed  by  law;  but  in  of  the  three  commisioners  would  be  left  to  the 
every  case  the  necessity  of  the  road,  and  the  amount  of  all  legislature.  Lost. 

damage  to  be  sustained  by  the  opening  thereof,  shall  be        \*r    T4.GGART  moved  tn  strikp  mit   "nffrPP 
first  determined  by  a  jury  of  free-holders,  and  such  amount    ,    TV '     ,,     «?     • 

together  with  the  expenses  of  the  proceeding,  shall  be    holders,     alter  jurors.      He  Wished  no    quallfica- 
paid  by  the  person  to  be  benefited.  tions  of  jurors  in  the  constitution. 

Mr*.  MURPHY  moved  to  amend  the  amend-       Mr.  JONES  moved  the  previous  question  on  the 

ment  bv  striking  out  all   after  the   words  "  by  a   section  and  the  amendment,  and  it  was  seconded. 

jury,"  and  adding  instead—  By  unanimous  consent,  Mr.  STOW  offered  an 

of 'twelve  freeholders  where  the  same  shall  be  situated,   amendment  striking  out  the  words  "unless  on  pre- 

who  shall  be  chosen  and  qualified  as  jurors  in  civil  cases,   sentinent  ol  the   grand  jury,"   and  altering  the 

This  was  discussed  by  Messrs.  HOFFMAN,  Phraseology  so  that  it  would  read:  "In  any  trial, 
STETSON,  BROWN,  SIMMONS,  KIRKLAND,  m  a,n/  court  whatsoever,  the  party  accused  shall 
COOK,  RUSSELL,  MURPHY  and  LOOMIS,  be. allowed  to  appear  and  defend  in  person  and 


a   recess. — 


fr, 
to 


when 

Mr.  FORSYTH  moved  the  previous  question  on 
the  amendments.  There  was  a  second,  and  the 
main  question  ordered. 

The  question  was  then  taken  on  the  amendment 
of  Mr.  MURPHY,  and  it  was  rejected— ayes  20, 


with  counsel  as  in  civil  actions."    Agreed  to. 

The  amendment  of  Mr.  TAGGART  was  lost. 

The  6th  section,  as  amended,  was  agreed  to,  86 
to  20. 

RIGHTS  OF  MARRIED  WOMEN. 

The  7th  section  was  read  as  follows : — 
§  7.  All  property  of  the  wife,  owned  by  her  at  the  time 
was  then  taken  on  the  amendment 
of  Mr.  KIRKLAND.    A  division  being  ordered  it  I  stailTe^er  seiTaVate^^ 

was    first  taken  on  the  first  clause  of  ihe    amend-    viding  for  the  registry  of  the  wife's  separate  property,  and 
ment,  and  it  was  adopted.  The  second  clause  was  I  mo*e  ^F1/  defining  her  rights  thereto,  as  well  as  to  pro- 
also  adopted  ayes  89,  nays  21.     The   amendment 
was  therefore  adopted.  Mr.  OrCONOR  called  up  the   question  on  re- 

Mr.    COOK  moved    to    insert  after   the  word   considering  this  section.     He  remarked  that  the 
"  law"  the  following—"  but  iu  such  roads,  when   sudden  manner  m  which  it  had  been  first  brought 

up  had  prevented  full  discussion,  had  allowed  no 


1057 


time  for  deliberate  reflection,  and  led  the  Con- 
vention to  form  a  hasty  judgment.  He  had  not 
d  the  point  then, "but  rather  than  permit  so 
important  a  resolution  to  be  brought  sub  silentio, 
he  would  endeavor  to  compress  within  the,  allot- 
ted fifteen  minutes  argument,  enough  to  induce 
reflection.  And  he  was  sure  that  due  reflection 
would  induce  a  majority  to  reverse  the  former 
vote.  He  regarded  this  section  as  more  important 
than  any  which  had  been  adopted — perhaps  than 
all  the  rest  of  the  constitution.  If  there  was  any 
thing  in  our  institutions  that  ought  not  to  be 
touched  by  the  stern  hand  of  the  reformer,  it  was 
the  sacred  ordinance  of  marriage  and  the  relations 
arising  out  of  it.  The  difference,  he  said,  between 
the  law  of  England  and  that  of  most  other  nations, 
was  that  it  established"  the  most  entire  and  abso- 
lute union  and  identity  of  interests  and  of  persons 
in  the  matrimonial  state ;  it  recognized  the  hus- 
band as  the  head  of  the  household,  merged  in  him 
the  legal  being  of  the  wife  so  thoroughly,  that  in 
contemplation  of  law  she  could  scarcely  be  said 
to  exist.  The  common  law  of  England  was  the 
law  of  this  country,  and  both  were  based  upon  the 
gospel  precept,  "  they  twain  shall  be  one  flesh." 
Pure  as  its  origin— the  fountain  of  holy  writ — this 
common  law  rule  upon  this  subject  had  endured 
for  centuries  ;  it  had  parsed  the  ocean  with  our 
ancestors,  and  cheered  their  first  rude  cabins  in 
the  wilderness ;  it  still  continued  in  all  its  origi- 
nal vigor  and  purity,  and  with  all  its  originally  be- 
nign tendency  and  influences;  unimpaired  by 
time,  undimiiiished  in  its  capacity  to  bless  by  any 
change  of  climate  or  external  circumstances. — 
Revolution  after  revolution  had  swept  over  the 
home  of  married  love  here  and  in  the  mother 
country  ;  forms  of  government  had  changed  with 
Proteus-like  versatility ;  but  the  domestic  fire- 
side had  remained  untouched.  Woman,  as  wife, 
eras  mother,  had  known  no  change  of  the  law 
which  fixed  her  domestic  character,  and  guided 
her  devoted  love.  She  had  as  yet  known  no  de- 
basing pecuniary  interest  apart  from  the  prospe- 
rity of  her  husband.  His  wealth  had  been  her 
wealth ;  his  prosperity  her  pride,  her  only  source 
of  power  or  distinction.  Thus  had  society  exist- 
ed hitherto — did  it  need  a  change  ?  Must  the 
busy  and  impatient  besom  of  reform  obtrude,  with- 
out invitation,  its  unwelcome  officiousness  within 
the  charmed  and  charming  circle  of  domestic  life, 
and  there  too  change  the  laws  and  habits  of  our 
people  ?  He  trusted  not.  He  called  upon  not 
only  husbands,  but  brothers,  sons — all  who  held 
the  married  state  in  respect,  to  pause  and  delibe- 
rate before  they  fixed  permanently  in  the  funda- 
mental law,  this  new  and  dangerous  principle.  No 
change  should  be  made  in  the  rules  affecting  the 
relation  of  husband  and  wife.  The  habits  and 
manners  built  upon  those  rules  and  arising  out  of 
them  could  not  be  improved  and  ought  to  be  per- 
petuated. The  firm  union  of  interests  in  married 
life,  as  established  by  the  common  law,  occa- 
sionally, in  special  cases,  produced  *  deplorable 
evils,  but  its  general  influence  upon  the  manners 
of  society  was  most  benign.  This  was  exhibited 
in  the  past  history  of  England  and  our  own  coun- 
try ;  it  was  visible  in  the  existing  condition  of  our 
people.  Why  change  the  law,  and  by  a  rash  ex- 
periment, put  at  risk  the  choicest  blessings  we 
enjoy? 

107 


Husbands  in  America,  are  generally  faithful, 
and  true  protector-*  of  their  vaves  ;  wives  in 
America,  are  generally  Tcui/O.els  for  imitation. — 
The  least  reflection  must  convince,  that  this  state 
of  manners  amongst  us,  results  from  the  purity 
of  our  laws  for  domestic  government.  These 
laws  ought  not  then  to  be  changed,  lest  manners 
should  change  with  them.  The  proposition  came 
in  an  insidious  and  deceitful  form  ;  it  came  with 
professions  of  regard  for  woman,  and  thus  won 
a  ready  access  to  the  favor  of  all  good  men  ;  but 
like  the  serpent's  tale  to  the  first  woman,  it  tended 
— if  it  did  not  seek — to  degrade  her.  He  thought 
the  law  which  united  in  one  common  bond,  the 
pecuniary  interests  of  husband  and  wife,  should 
remain.  He  was  no  true  American  who  desired 
to  see  it  changed.  If  it  were  changed  and  man, 
and  wife  converted  as  it  were  into  mere  partners, 
he  believed,  a  most  essential  injury  would  result 
to  the  endearing  relations  of  married  life.  A 
wife  with  a  separate  estate  secured  to  her  inde- 
pendent disposal  and  management,  might  be  a 
sole  trader  ;  she  might  rival  her  husband  in  trade 
or  become  the  partner  of  his  rival.  Diverse  and 
opposing  interests  would  be  likely  to  grow  out  of 
such  relations  ;  controversies  would  arise,  hus- 
band and  wife  would  become  armed  against  each 
other  to  the  utter  destruction  of  the  sentiments 
which  they  should  entertain  towards  each  other, 
and  to  the  utter  subversion  of  true  felicity  in 
married  life.  Did  time  allow,  he  might  illustrate 
by  exhibiting  the  thousand  shapes  and  forms  in 
which  those  conflicting  interests  would  operate 
mischievously.  And  though  each  might  seem 
trifling  in  itself — in  the  aggregate  they  would 
form  a  mighty  force  in  their  oft  recurring  pre- 
sentment, they  would  form  a  fatal  means  of  irri- 
tation and  dissention.  It  might  be  said  that  the 
utterance  of  this  thought  was  an  unmerited  re- 
proach upon  American  wives  and  husbands. — 
Nothing  was  further  from  his  purpose  ;  it  was 
the  perfection  and  purity  of  their  relations,  as 
now  actually  existing,  that  commanded  his  admi- 
ration. His  object  was  to  defend  those  relations 
against  the  imputation  that  they  would  be  im- 
proved or  reformed.  Married  life,  as  it  WAS,  he 
wished  to  protect.  It  was  governed  by  laws  of 
divine  origin  ;  it  was,  in  this  country,  as  perfect, 
as  human  institutions,  or  human  nature  could 
be  made  ;  and  he  wished  it  to  be  left  untouched, 
in  all  its  sacredness  and  simplicity.  The  state  of 
society  in  this  respect,  under  the  existing  law  wa? 
no  proof  that  it  would  continue  the  same  under  a 
law  precisely  the  reverse.  On  the  contrary  it  wa? 
evidence  in  favor  of  the  existing  law.  None  could 
deny  that  the  great  fundamental  laws  of  a  communi- 
ty in  respect  to  property, have  an  esential  influence 
even  upon  the  workings  of  human  affection,  with- 
in the  domestic  circle.  In  England  the  unnatu- 
ral law  of  primogeniture  prevailed  ;  but  there, 
as  with  us,  the  parent  having  property,  might 
dispose  of  it  as  he  pleased  ;  yet  an  English  father 
though  loving  his  children  with  a  equal  affection, 
almost  invariably  gave  the  bulk  of  his  estate  to 
the  eldest  son.  In  conformity  with  the  law,  ac- 
customed and  approved,  he  confers  wealth  upon 
one  child,  and  in  violation  of  the  dictates  of  nat- 
ural affection,  puts,  off  his  younger  sons  with 
places  rn  the  army  or  the  navy — his  daughters 
with  a  sorry  pittance. 


1058 


In  this  country,  the  opposite  law  produced  ex- 
actly the  opposite  result.  A  father  here  would 
consider  himself  violating  a  moral  duty  if  he 
made  any  discriminations  or  preference  in  the  di- 
vision of  his  property,  unless  indeed,  some  spe- 
cial cause  should  give  one  an  equitable  claim  to 
a  better  provision  than  the  others. 

[Here  the  hammer  fell,  but  by  unanimous  con- 
sent Mr.  O'C.  had  leave  to  proceed.] 

Mr.  O'C.  said  that  he  would  not  unduly  tres 
pass  upon  this  indulgence.  A  law  like  that  pro- 
posed was  unnecessary.  Whenever  the  particu- 
lar circumstances  of  the  family  rendered  it  pro- 
per, special  settlements  could  now  be  made  to 
secure  the  separate  estates  of  married  women, 
and  that  was  sufficient  for  every  useful  purpose. 
Indeed,  the  utility  of  that  power  was  very  doubt- 
ful, for  although  it  secured  married  women  from 
being  dependant  upon  the  affection  of  their  hus- 
bands, it  was  to  be  feared  that  it  too  frequently 
secured  them  from  the  enjoyment  of  any  such 
sentiment.  It  grew  up  in  the  hot-bed  of  wealth 
and  luxury  ;  and  it  had  never  emigrated ;  it 
flourished  there  only.  It  affected  not  the  humble 
cottage,  nor  any  great  portion  of  society.  Many 
doubted  the  wisdom  of  allowing  separate  settle- 
ments in  any  case  ;  but  he  would  not  enter  into 
that  question.  The  theatre  of  their  action  was 
limited — and  lay  among  those  who  had  many 
sources  of  enjoyment ;  and  he  would  not.  change 
the  rule  on  that  subject.  He  would  leave  sepa- 
rate settlements  to  take  effect  only  by  the  special 
act  of  the  party.  Then  they  would  have  no 
effect  upon  society  at  large.  It  was  the  general 
law  of  the  state — the  laws  operating  alike  upon 
all  classes— and  that  law  only  which  worked  its 
way  into  the  very  frame  of  society,  became  a 
part  of  the  mental  constitution  of  the  people, 
and  permanently  influenced  for  good  or  for  evil, 
the  habits,  manners,  and  morals  of  a  country. — 
The  occasional  acts  of  individuals  have  no  gen- 
eral influence,  but  the  general  law  of  society  if  it 
was  not  the  offspring,  would  always  become  the 
parent  of  a  general  morality  conforming  to  it. — 
He  asked  the  convention  to  look,  at  the  state  of 
society  in  the  nations  of  continental  Europe,  gov- 
erned by  the  civil  law,  where  the  estate  of  the 
wife  was  kept  separate,  and  to  compare  it  with 
the  beautiful  and  divine  simplicity  of  the  mar- 
riage relation  in  England  and  this  state — to  con- 
template high  life,  with  its  separate  settlements 
for  the  wife,  its  thousand  luxuries  and  few  real 
joys,  and  to  compare  it  with  the  domestic  rela- 
tions as  they  existed  in  the  ordinary  walks  of  life, 
where  this  device  of  man's  enemy  was  unknown. 
After  such  a  comparison  would  any  man  say,  that 
a  change  from  these  to  those  was  desirable  ? 

In  reference  to  the  system  of  marriage  settle- 
ments by  which  in  special  cases,  that  relation  is 
established  between  man  and  wife  which  this  sec- 
tion seeks  to  make  universal.  Mr.  Justice  PLATT 
says: — "It  tends  to  sever,  in  some  degree,  the 
marriage  union;  because  it  not  only  renders  the 
wife  independent  of  her  husband,  as  to  her  for- 
tune, but  bars  him  of  a  participation  in  it,  by  new 
and  increased  impediments,  ;>-i  if  he  were  pre- 
sumed to  be  her  worst  enemy."  If  matrimony  is 
not  desirable  without  these  trammels,  and  fences, 
and  reservations,  I  say  marry  not  at  all  I  The  an. 
cient  rule  of  the  English  common  law*  was  adapt- 


ed to  the  state  of  English  manners  in  early  times,, 
and  accords  best  with  the  general  simplicity  of 
society  among  us  at  this  day.  I  know  that  parti- 
cular cases  often  occur  when  such  restraints  would 
be  salutary,  but  as  a  general  rule  their  operation 
would  be  unfavorable  to  connubial  happiness.  A 
benign 'policy  would  not  admit  a  rule  which  im- 
pairs the  union,  and  lessens  the  attributes  of  holy 
matrimony.  It  is  better  that  confidence  between 
husband  and  wife  should  sometimes  be  abused, 
than  that  it  should  not  exist  in  that  relation.  We 
often  see  acts  of  tyranny  and  cruelty  exercised  by 
the  husband  toward  the  wife,  of  which  the  law 
takes  no  cognizance; and  yet  no  man  of  wisdom  or 
reflection  can  doubt  the  propriety  of  the  rule 
which  gives  the  husband  the  contro'l  and  custody 
of  the  wife.  It  is  the  price  which  female  wants 
and  weakness  must  pay  for  their  protection. — 
That  a  woman  should  contemplate  feer  intended 
husband,  as  likely  to  become  her  enemy  and  de- 
spoiler,  and  should  guard  herself  against  him  as  a 
swindler  and  a  robber,  and  then  admit  him  to  her 
embraces,  presents  a  sombre  and  disgusting  pic- 
ture of  matrimony.  Marriage  justly  implies  a  re- 
union of  hearts  and  interests;  and  the  modifica- 
tions of  that  relation  which  excessive  refinement 
have  introduced  form  an  excrescence  which  should 
be  extirpated." 

Mr.  O'C.  continued  :  the  same  ideas  in  still 
stronger  terms,  are  enforced  in  the  same  case  by 
Mr.  Chief  Justice  SPENCER.  This  was  the  opin- 
ion of  the  pure-minded  JONAS  PL.ATT — ot  the  ve- 
nerable, wise,  and  profoundly  learned  AMBROSE 
SPENCER.  If  this  Convention  should  change  the 
laws — invade  the  sanctuary  of  domestic  love,  and 
entrench  within  it  the  fiend  pecuniary  self-inter- 
est, he  believed  it  would  ultimately  change  the 
whole  character  of  the  married  relation  in  our 
country.  He  spoke  for  posterity,  not  tor  the  pre- 
sent geneiation.  If  the  members  of  this  Conven- 
tion and  the  people  acted  unwisely  in  this  matter 
they  would  go  down  to  the  grave  unpunished;  for 
the  evil  would  not  come  in  their  day.  Laws  might 
be  changed  in  an  instant,  but  manners  could  nei- 
ther be  formed  nor  subverted  suddenly.  The  pre- 
sent tone  of  society  in  this  respect  was  too  well 
fixed  to  be  soon  changed.  It  was  the  result  of 
centuries,  of  human  existence,  under  a  wise  law. 
The  wives  and  husbands  ot"  the  present  day  would 
retftin  the  manners  that  law  had  created  long  after 
the  law  itself  was  abolished.  But  if  this  new  rule 
should  be  adopted,  the  student  of  history  in  after 
times  would  condemn  the  act.  From  amid  the 
less  pure  and  incorrupt  habits  and  manners  of  do. 
mesticlifeas  then  existing  around  him,  he  would 
look  back  to  the  present  day  with  emotions  akin 
to  those  which  affect  our  minds  when  contempla- 
ting the  first  family,  in  happy  Eden,  before  the 
empter  came. 

Mr.  MORRIS  said  he  was  not  surprised  that 
this  doctrine  of  the  identity  of  man  and  wife  to  be 
sustained  only  by  the  laws  of  England — laws  un- 
der which  men  once  sold  their  wives — under 
which  a  husband  could  flog  his  wife  with  a  stick 
as  large  as  the  judge's  thumb — a  law  which  was 
well  said  to  unite  men  and  women  for  better  or 
for  worse — which  literally  construed,  gave  the 
men  all  the  benefit  and  the  women  all  the  evil — •• 
or  rather  which  proceeded  on  the  assumption  that 
the  harmony  of  a  family  consisted  in  the  man's 


1059 


pocketing  all  the  cash.  Mr.  M.  adverted  to  the 
fact  that  by  our  law,  property  could  be  settled  on 
the  wife  and  her  children  beyond  the  reach  of  the 
husband  and  his  creditors — and  that  this  precau- 
tion against  the  profligacy  of  the  husband  had  not 
only  been  acquiesced  in  by  the  public,  but  that 
it  had  been  found  to  be  a  most  wise  provision. — 
Thousands  and  thousands  of  cases  probably  exist- 
ed now,  where  it  had  been  the  means  of  keeping 
a  family  together  in  comfort,  the  wife  enabled  to 
live  as  she  was  reared,  and  the  children  properly 
educated,  and  where,  but  for  such  a  eprovision, 
she  and  they  would  have  been  neglected.  Why 
could  not  this  provision  which  every  prudent 
man  made  for  his  children,  be  made  general — so 
that  the  children  of  the  ignorant  or  the  careless 
may  have  the  benefit  of  it?  Mr.  M.  related  some 
cases  that  had  come  to  his  knowledge  officially 
and  otherwise  during  his  service  as  mayor  and  re- 
corder of  New- York — where  females  who  had 
brought  property  to  their  husbands,  had  been 
made  beggars  by  the  profligacy  of  the  men  whose 
duty  it  was  to  have  sustained  and  comforted 
them — of  wives  who  had  worked  night  and  day 
with  the  needle,  and  had  not  only  supported  hus- 
band and  family,  but  had  laid  up  something 
against  a  wet  day— but  whose  earnings  had  been 
seized  and  squandered  by  a  dissolute  husband — 
where  friends  and  relatives,  under  his  promi- 
ses of  reformation  had  come  forward  and  fur- 
nished a  house  for  the  family ;  but  when 
promises  were  broken,  and  the  house  stripped 
of  every  thing  by  the  creditors  of  the  debau- 
chee of  a  husband,  and  his  family,  turned 
inio  the  street.  This  was  the  sort  of  domestic 
harmony  that  resulted  from  this  delectable  rule  of 
the  unity  of  husband  and  wife  in  matters  of  pro- 
perly. He  alluded  also  to  facts  that. were  known 
to  many  connected  with  the  police  of  the  city, 
that  pmved  the  existence  of  an  organized  system 
of  fortune  hunting  in  Europe,  under  which  heir- 
esses here  were  made  the  victims  of  a  partition 
among  "  nice  young  men"  having  in  view  solely 
the  property  to  be  acquired  by  marriage  under  our 
law — and  he  related  a  case,  as  a  sample  of  this 
kind  of  matrimonial  speculation,  which  was  car- 
ried on  under  the  sanction  ot  our  laws,  and  which 
he  vouched  for  as  fact,  and  not  fancy.  There 
were  cases  no  doubt  within  the  knowledge  of  every 
man  who  heard  him— cases  which  we  did  not  love 
1o  talk  of,  and  the  knowledge  of  which,  therefore, 
had  not  become  general,  which,  he  ventured  to 
say  had  determined  every  one  of  us  that  had  pro. 
perry  to  leave  to  female  children,  to  see  to  it,  that 
by  will,  it  should  be  secured  beyond  contingency, 
from  the  grasp  of  a  dissolute  husband.  This  was 
a  precaution  which  as  none  of  us  would  omit,  he 
urged  we  should  not  hi  silate  to  take  for  the  benefit 
of  the  thousands,  for  whom  no  such  special  pro- 
vision had  been  made,  either  because  there  was 
not  property  enough  to  make  this  machinery  o! 
trusts  advisable,  or  because  the  parent  had  been 
struck  down  suddenly  by  death,  and  without  the 
opportunity  to  make  a  will.  He  insisted  that  such 
a  provision  as  this  engrafted  in  our  constitution, 
instead  of  disturbing  the  married  relations,  or  in- 
troducing dissatisfaction  and  heart-burning  in  fa- 
milies, would  do  more  to  alleviate  human  suffer- 
ing, and  bind  families  together  in  the  bond  of' 
peace,  than  any  provision  it  was  in  our  power  to 


adopt.     He  urged  that  the  proud  vote  by  which  it 
had  been  adopted,  would  not    be  reversed. 
Mr.  R.  CAMPBELL  jr.  moved  (he  previous  ques- 
tion, but  there  was  no  second. 

Mr.  MURPHY  hoped  that  after  having  been  so 
long  in  the  clouds,  we  should  now  view  this  sub- 
ject in  a  common  sense  light.  So  far  as  the  real 
estate  of  the  wife  was  concerned,  this  proposition 
would  make  no  essential  change  in  the  law  as  it 
stood.  It  would  only  affect  the  personal  property, 
and  that  if  the  wife  had  confidence  in  her  hus- 
band, would  be  just  as  much  within  the  reach  of 
the  husband,  under  this  provision,  as  now.  But 
his  main  objection  to  it  was  that  we  should  be 
under  the  curse  of  the  married  relation  as  it  ex- 
isted under  the  civil  law.  He  should  therefore 
vote  to  reconsider,  and  reject  the  section. 

Mr.  BROWN  trusted  there  would  be  no  hasty 
action  on  a  question  which  involved  such  vital 
consequences  as  the  one  under  consideration. — 
When  it  was  adopted,  it  could  have  had  no  such 
examination  as  was  due  to  it.  It  was  the  most 
radical  and  important  principle  that  had  been  in- 
troduced during  the  entire  session,  and  although 
he  had  been  an  early  reformer,  he  had  no  hesita- 
tion in  saying  that  if  this  proposition  in  the  Ian. 
guage  in  which  it  now  stands,  was  inserted  in  the 
constitution,  it  would  and  ought  to  be  rejected. — 
Mr.  B.  went  on  to  argue  that  it  was  not  to  be  to- 
lerated that  the  social  relations  of  the  whole  peo- 
ple should  be  changed,  and  for  the  worse — tb*t 
the  married  state  should  be  disturbed  as  it  existed 
under  the  benign  principles  of  the  common  law — 
in  order  to  reach  the  individual  cases  that  have 
been  mentioned — such  as  those  foreign  fortune 
hunters,  or  any  of  those  isolated  cases.  It  was 
impolitic,  he  urged,  thus  to  tie  up,  not  merely  the 
real,  but  the  personal  property  of  the  wife,  with 
all  its  accumulations  during  coverture.  It  might 
well  perhaps  be  an  experiment  for  the  legisla- 
ture to  adopt,  but  he  would  ever  object  to  its  be- 
ing made  the  inflexible  constitutional  law  of  the 
land. 

Mr.  HARRIS  said  that  he  made  no  pretensions 
to  any  great  share  of  chivalry,  nor  did  he  propose 
to  stand  there  as  the  champion  of  the  gentler  sex, 
he  intended  to  speak  with  becoming  gravity,  and 
with  a  deep  impression  of  the  importance  of  the 
subject.  The  condition  of  the  female  sex  was  one 
which  might  well  command  the  consideration  of 
every  statesman,  patriot  and  philanthropist.  In 
savage  life,  the  woman  is  but  a  menial  slave — in 
half  civilized  life,  she  is  but  a  voluptuous  toy ; 
and  it  is  only  where  Christianity  exerts  its  holy  in- 
fluence, that  she  becomes  the  companion  and  as- 
sociate of  man,  and  assumes  her  proper  rank,  and 
is  permitted  to  win  her  way  to  that  equality  in 
intellectual  rank  and  social  condition,  which  her 
God  designed  she  should  occupy.  And  it  was 
because  for  6000  years  she  has  been  deprived  of 
that  equality,  that  the  world  had  made  such  slow 
progress  in  elevation,  improvement,  refinement, 
and  every  thing  that  blesses  mankind.  Much 
had  been  said  by  way  of  comparison  between  the 
civil  and  common  law,  with  reference  to  this 
question,  and  gentlemen  had  alluded  to  the  con- 
dition of  the  married  state  in  the  counties  where 
the  civil  law  is  in  operation,  and  where  the  com- 
mon law  prevailed.  But  gentleman  should. re- 
fer to  a  greater  principle,  and  seek  there  the  dif- 


1060 


ference.  It  was  because  that  in  England  and  the 
United  States  Christianity  prevailed,  that  the  fe- 
male condition  was  elevated,  and  not  because  the 
common  law  was  preferable  to  the  civil.  It  was 
under  the  benign  and  holy  influence  of  Chris- 
tianity, that  women  in  these  two  countries  had 
attained  her  proper  rank  in  the  social  scale,  in 
despite  of  the  principles  of  the  common  law, — 
which  originated  in  a  dark  and  barbarous  age. 
The  proposition  pending,  he  urged,  contemplated 
only  doing  that  directly  which  by  our  laws  could 
now  be  done  indirectly,  and  which  was  always 
done  when  there  was  any  considerable  amount  of 
property  belonging  to  the  woman  before  marriage. 
The  proposition  made  that  a  general  rule,  and 
gave  to  the  poor  also,  where  the  greatest  amount 
of  suffering  was  under  the  present  state  of  things, 
the  benefit  of  the  same  provision.  He  urged  it, 
al&o,  as  a  father,  anxious  to  secure  to  his  own  the 
benefit  of  the  little  that  he  might  have  then. 

Mr.  WORDEN  had  voted  originally  against 
this  section,  and  was  not  sure  that  it  did  not  go 
too  far,  and  that  a  middle  course  between  the  ex- 
tremes of  opinions  here  might  be  most  safe  and 
advisable.  He  read  the  following  substitute, — 
which  he.should  propose  for  the  section,  if  it 
were  reconsidered : 

"  Every  married  woman  shall  be  entitled  to  an  equita- 
ble support  out  of  the  property,  real  or  personal,  owned 
by  her  at  her  marriage  or  acquired  by  her  at  any  time  af- 
terwards. Such  property  shall  be  held  in  her  owii  name, 
and  provisions  shall  be  made  by  law  for  carrying  this  sec- 
tion into  efiect." 

Mr.  STETSON  denounced  the  section  as  a 
phantasy  and  as  the  offspring  of  delusion — saying 
that  it  was  urged  and  was  calculated  only  to  reach 
foreign  adventurers  and  fortune  hunters,  and  to 
protect  the  daughters  of  the  millionaires  rather 
than  those  of  the  million.  Its  effect,  he  urged, 
would  be  pernicious  in  the  extreme  on  the  social 
condition  of  the  state,  being  at  war  with  the  very 
essence  of  the  marriage  relation  as  it  existed  in 
this  country.  He  concurred  with  the  view  taken 
by  Mr.  O'CoNOR  of  this  question — and  in  the 
course  of  his  remarks  read  from  the  constitution 
of  Texas  to  show  its  origin,  and  the  sinister  con- 
nection in  which  it  stood  in  that  constitution. 

Mr.  SIMMONS  said  the  section  would  not 
bear  a  breath  of  discussion — and  after  a  remark 
on  the  propensity  of  gentlemen  to  make  them- 
•  elves  merry  over  his  "  solitary  and  alone"  con- 
dition, whenever  he  undertook  to  talk  about  the 
domestic  relations — went  on  to  quote  from  vari- 
ous authors  in  commendation  of  the  institution 
of  marriage,  as  it  existed  under  the  common  law ; 
and  to  say  that  to  distrust  the  relations  as  pro- 
posed by  this  strumpet  provision  would  justly 
alarm  the  country.  He  quoted  Mr.  Jefferson  also 
in  opposition  to  the  principle  of  the  section,  and 
dwelt  upon  that  great  man's  declaration,  that  il 
was  owing  to  the  separate  interest  of  wife  and 
husband  in  France  that  about  half  the  annual  in- 
crease of  the  population  of  Paris  was  illegitimate. 
He  trusted,  if  we  did  any  thing,  we  should  go  no 
further  than  adopt  Mr.  WORDEN'S  proposition 

Mr  MARVIN  moved  the  previous  question 
and  the  motion  to  reconsider  prevailed — ayes  59 
noes  43. 

Mr.  HARRIS  moved  to  amend  by  striking  out 
all  after  the  word  "  husband,"  in  the  third  line 
and  inserting : — 


Shall  not  be  liable  for  the  debts  of  the  husband,  and  the 
legislature  shall  provide  by  law  for  more  effectually  se- 
curing to  married  women  the  benefit  of  such  property. 

Mr.  RUSSELL  moved  the  previous  question  on 
the  amendment,  and  it  was  seconded. 

The  amendment  of  Mr.  HARRIS  was  negatived, 
ayes  48,  noes  61.  - 

The  whole  section  was  then  rejected,  ayes  50, 
noes  59,  as  follows  : — 

AYES— Messrs.  Allen.  F.  F.  Backus,  H.  Backus,  Bascom 
Bowdish,  Burr.  Cambreleng,  R.  Campbell,  jr  ,  Candee, 
Conely,  Cook,  Dasa,  Dodd.  Flanders,  Forsyth,  Gebhard, 
:jlyde,Harris,  Hotchkiss,  Hutcliinson,Hyde,Kernan,iV]ann, 
McNitt,  Maxwell,  Morris,  Nellis,  Parish,  Perkins  Hiker, 
StJohn,  Salisbury,  Smith,  Stanton.Stephens.Swackhamer, 
Tallmadge,  Tilden,  Townsend,  Van  Scboonhoven,  Ward, 
Warren,  Waterbury,  White,  Willard,  Wood,  A.  Wright, 
W.  B.  Wright,  Yawger,  Young— 50. 

NOES— Messrs.Angel.Ayrault,  Bergen.Brayton.Brown, 
Bruce.  Brundage,  Bull,  D.  D.  Campbell,  Cornell,  Cudde- 
back,  Danforth,  Dorlon.  Dubois,  Graham,  Harrison,  Hart, 
Hoffman,  Hunt,  A.  Huntington,  E.  Huntington,  Jones, 
Kemble,  Kennedy,  Kingsley,  Loomis,  McNeil,  Marvin, 
Miller,  Munro,  Murphy,  Nicholas,  Nicoll,  O'Conor.  Pat- 
terson. Penniman,  Powers,  Rhoades.  Richmond,  Ruggies, 
Russell,  Sanford,  Shaver,  Shaw,  Simmons,  E.  Spencer, 
W.  H  Spencer,  Stetson,  Stow,  Strong,  Taft,  Taggart  J.  J. 
Taylor,  Tuthill,  Vache,  Witbeck,  Worden,  Youngs.— 59. 

Mr.  BASCOM  offered  the  following  as  a  new 
section  : — 

— .  The  contract  of  marriage  shall  not  be  held  to  vest 
in  either  of  the  contracting  parties  the  property  of  the  oth- 
er, or  to  create  a  liability  upon  either  to  discharge  the 
debts  or  the  obligations  of  the  other,  unless  by  virtue  of 
special  legal  enactment. 

Mr.  BASCOM  urged  that  the  country  was  full 
of  wrongs  growing  out  of  the  constructions  put 
upon  the  marriage  contract  by  the  English  courts. 
He  desired,  if  the  husband  was  to  have  the  sole 
control  of  his  wife's  property,  if  he  was  to  be  mas- 
ter and  she  the  slave,  that  the  legislature  should 
be  obliged  to  frame  the  law  accordingly,  and  let 
the  people  look  at  it  and  pronounce  their  judg- 
ment on  it.' 

Mr.  MARVIN  moved  the  previous  question, 
and  the  section  was  rejected,  ayes  5,  noes  88. 

Mr.  NELLIS  offered  the,  following  section: — 

^  — .  All  property,  real  and  personal,  owned  by  a  female 
at  the  time  of  her  marriage  or  acquired  by  her  afterwards, 
by  gift  from  any  person  or  persons  other  than  her  husband, 
or  by  devise,  bequest  or  descent,  shall  be  her  separate 
property  and  under  her  control,  subject  however,  to  such 
restrictions,  limitations  and  regulations  as  may  from  time 
to  time  be  prescribed  by  law. 

Mr.  LOOMIS  offered  the  following  substitute 
for  this  section  : — 

"  Provision  shall  be  made  by  law  for  securing  to  every 
married  woman  an  equitable  support  out  of  the  real  or  per- 
sonal property  owned  by  her  at  her  marriage,  or  acquired 
by  her  at  any  time  afterwards,  but  the  power  ot  alienation, 
by  consent  of  the  wife,  shall  not  be  destroyed  by  any  such 
laws  '•• 

Mr.  BRUNDAGE  opposed  the  original  section, 
as  one  that  would  produce  incalculable  mischief, 
in  its  disturbing  effects  upon  the  domestic  circle 
— at  the  same  time  avowing  himself  in  favor  of 
exempting  the  property  of  the  wife 'from  liabi- 
lity for  the  debts  of  the  husband.  He  concurred 
with  Mr.  BROWN,  that  if  this  section  was  incor- 
porated into  the  constitution,  the  whole  thing 
ought  to  be  rejected. 

iVir.  LOOMIS  urged  that  this  was  a  subject 
that  should  be  approached  with  great  caution, 
and  went  on  to  say  that  some  of  the  propositions 
offered  here  would  change  the  whole  face  of  so- 
ciety, independent  of  their  moral  effect  directly 


1061 


on  the  parties — for  it  would  result  in  all  real 
property  descending  in  the  female  line,  and  being 
tied  up  in  families,  secure  from  the  reach  of  cre- 
ditors, and  from  alienation. 

After  some  further  debate,  in  which  Messrs. 
SW  AC  KRAMER  and  HARRIS  took  part, 

Mr.  SANFORD  moved  to  lay  the  section  and 
amendment  on  the  table:  Carried,  52  to  49. 

The  8th  section  was  read,  as  follows : 
&§  8.  Every  citi/en  may  freely  speak,  write  and  publish 
his  sentiments  on  all  subjects,  being  responsible  lor  the 
abuse  of  that  right  ;  and  no  law  shall  be  passed  to  restrain 
or  abridge  the  liberty  of  speech  or  of  the  press.  In  all 
criminal  prosecutions  or  indictments,  and  in  civil  actions 
for  libels,  the  truth  may  be  given  in  evidence  to  the  jury  ; 
and  if  it  shall  appear  to  the  jury  that  the  matter  charged 
as  libellous  is  true,  and  was  published  with  good  motives 
and  for  justifiable  ends,  the  party  shall  be  acquitted,  and 
the  jury  shall  have  the  right  to  determine  the  law  und  the 
fact. 

Mr.  BROWN  moved  to  strike  out  the  words 
"  and  in  civil  actions."  He  would  leave  the  con- 
stitution as  it  always  had  stood. 

Mr.  HOFFMAN  hoped  the  motion  would  pre- 
vail. 

Mr.  SIMMONS  thought  there  would  be  no  ob- 
jection to  this.  The  words  had  evidently  got  in 
by  mistake. 

Mr.  TALLMADGE  explained  that  this  was 
one  of  the  sections  reported  by  the  committee  on 
rights  and  privileges — whose  report  had  been 
most  unceremoniously  taken  out  of  their  hands 
and  turned  over  to  another  committee,  who  had 
reported  it  precisely  in  its  original  shape.  He 
had  objected  strenuously  to  the  insertion  of  these 
words  in  committee,  but  was  over-ruled  by  a 
majority  of  the  committee.  The  words  should 
be  struck  out — for  they  were  clearly  out  of  place 
there — and  would  be  found  to  be  most  mischie- 
vous in  tendency.  He  explain^  d  their  effect  at 
some  length,  and  commented  with  much  severity 
upon  the  course  which  had  been  taken  with  the 
article  reported  by  the  committee  of  which  he 
was  chairman — particularly  upon  its  postpone- 
ment to  this  late  day  of  the  session,  and  until 
matters  of  comparatively  trivial  importance  had 
been  discussed  for  weeks  together. 

Mr.  WORDEN  said  if  these  words  should  be 
retained,  it  would  make  the  law  of  libel  still  more 
stringent  than  it  was  at  present. 

Mr.  BERGEN  moved  the  previous  question, 
and  it  was  seconded. 

The  words  were  stricken  out  and  the  section 
adopted. 

Mr.  WORDEN,  after  a  few  explanatory  re- 
marks, offered  the  following  additional  section  : 

§  — .  No  person  shall  be  prejudiced  in  any  civil  or  cri- 
minal prosecutiou  lor  libel,  by  reason  of  any  false  plead, 
ing. 

Laid  on  the  table. 

Mr.  BROWN  moved  to  adjourn:   Lost. 

The  9th  section  was  then  read  as  follows  : 

^  9.  The  assent  of  two-thirds  of  the  members  elected-.to 

each  branch  of  the  legislature,   shall  be  requisite  to  evwy 

bill  appropriating  the  public  moneys  or  property  for  local 

or  private  purposes. 

Mr.  CORNELL  moved  to  add  «*  or  creating, 
renewing,  altering  or  Continuing  any  municipal 
corporation  or  body  politic." 

This  was  debated  by  Messrs.  PATTERSON, 
CORNELL,  SWACKHAMER,  TALLMADGE, 
HOFFMAN  and  SIMMONS,  and  rejected. 


The  section  was  adopted. 
The  10th  section  was  then  read  : — 
§  10.  No  lottery   shall  hereafter  be  authorized  in  this 

state,   and  the  legislature   shall  pass  laws  to  prevent  the 

sale  of  all  lottery  tickets  within  this  state. 

Mr.  STOW  moved  to  substitute  for  this  the  fol- 
lowing: 

^  10.  No  law  shall  be  passed  abridging  the  right  of  the 
people  peaceably  to  assemble,  and  to  petition  the  govern- 
ment, or  any  department  thereof;  nor  shall  arfy  divorce 
be  granted,  otherwise  than  by  due  judicial  proceedings  j 
nor  shall  any  lottery  hereafter  be  authorized,  or  any  sale 
of  lottery  tickets  allowed,  within  this  state. 

The  motion  was  agreed  to. 

Mr.  BROWN  moved  also  to  add  the  9th  sec- 
tion of  the  report  of  the  select  committee,  in  re- 
lation to  the  inspectors,  &c.  as  follows  : 

§  10.  No  law  shall  be  passed  requiring  the  inspection, 
measuring,  guaging,  weighing  or  culling  of  any  commo- 
dity as  a  condition  of  individual  dealings  therein  ;  nor 
shall  any  office  be  created  or  continued  for  any  such  pur- 
pose. 

Several  gentlemen  suggested  that  section  8,  of 
article  5,  provided  for  all  this. 

Mr.  BROWN  thought  not,  and  insisted  upon 
his  motion. 

Mr.  STOW  explained  the  section. 

Mr.  F.  F.  BACKUS  moved  to  lay  the  section 
on  the  table.  This  was  not  the  proper  place  to 
offer  it. 

The  motion  was  lost. 

The  section  was  debated  by  Mr.  MORRIS. 

Mr.  O'CONOR  moved  to  strike  out  the  word 
"  requiring"  and  insert  "  for." 

Mr.  BROWN  accepted  the  amendment. 

The  debate  was  continued  by  Messrs.  TOWN- 
SEND  and  RUSSELL. 

Mr.  BERGEN  moved  to  adjourn.     Agreed  to. 

Adj.  to  8i  o'clock  to-morrow  morning. 


TUESDAY,  (101th  day.)  October  6. 

No  Clergyman  present 

Mr.  TUTH1LL  proposed  a  resolution  instruct- 
ing the  select  committee  on  revision  to  incorpo- 
rate in  the  Constitution  the  article  reported  by  the 
committee  on  education 

Mr.  BRUCE  moved  to  lay  the  resolution  on  the 
table.  This  vas  agieed  to. 

Mr.  HARRISON  ottered  a  resolution  instructing 
the  select  committee  on  revision  to  unite  Rich- 
mond with  Rockland  in  the  apportionment  arti- 
cle. 

After  some  conversation  Mr  H.  assented  to  the 
resolution  being  laid  on  the  table. 

THE  ADJOURNMENT. 

Mr.  RUSSELL  moved  that  the  resolution  fixing 
the  final  adjournment  at  12  o'clock  to-day  be  re- 
considered. This  was  agreed  to  and  the  resolu- 
tion laid  on  the  table. 

THE  REVISED   CONSTITUTION. 

The  Convention  then  resumed  the  report  of  the 
committee  on  revision. 

The  (lending  question  was  on  the  section  offered 
last  evening  by  Mr.  BROWN  in  relation  to  the  in- 
spection of  merchandize. 

Mr.  GREENE  moved  to  strike  out  the  words, 
"  as  a  condition  ot  individuals  dealing  therein." 

After  some  debate  in  which  Messrs.  O'CONOR 
and  TOWNSEND  participated,  Mr.  GREENE 
withdrew  his  mocion. 


1062 


Mr.  J.  J.  TAYLOR  moved  to  insert  the  words, 
*«  and  ail  existing  laws  for  such  purposes  are  abol- 
ished." 

Mr.  MORRIS  moved  to  lay  the  section  on  the 
table.  Atrreed  to. 

Mr.  SWACKHAMER  offered  the  following  as 
an  additional  section  : 

<5  1-2.  Witnesses  in  criminal  cases  shall  not  be  imprison- 
ed for  the  want  of  bail  to  secure  their  attendance  at  the 
trial  of  the  cause;  but  laws  shall  be  passed  to  secure,  if  ne- 
cessary, the  temporary  detention  of  witnesses  in  criminal 
cases;  and  for  their  prompt  examination  de  bene  esse; 
which  examination  shall  be  evidence  in  all  subsequent 
proceedings  upon  the  subject  matters;  and  shall  have  the 
same  efl'ect  as  the  oral  testimony  of  the  witness  would 
have,  were  he  pivsent,  and  examined  in  person. 

Mr.  KIRKLAND  objected  to  the  section  on  the 
ground  that  this  was  purely  a  legislative  matter, 
and  that  its  adoption  might  lead  to.  very  serious 
inconveniences. 

Mr.  RICHMOND  enquired  what  the  gentleman 
from  Kings  meant  by  de  bene  esse. 

Mr.  SWACKHAMER  explained  that  he  trans- 
lated it  to  be  "  conditionally." 

Mr.  TILDEN  opposed  the  amendment,  and 
Mr.  MORRIS  supported  it,  when 

Mr.  N1COLL  moved  to  lay  this  matter  on  the 
table. 

Mr.  JONES  called  for  the  ayes  and  noes  on 
this  motion,  and  it  was  carried,  ayes  59,  noes  43, 
as  follows  :  — 

AYES—  Messrs.  Allen,  Angel,  Archer,  Bascom,  Bergen, 
Brayton,  Brown,  Bruce,  Brundage,  Cambreleng,  D.  D. 
Campbell,  R.  Campbell,  jr.,  Cook,  Crooker,  Cuddeback, 
Danforth,  Dodd,  Dorlon,  Dubois,  Gebhard,  Graham, 
Greene,  Hawley,  Hofl'man,  A,  Huntington,  Hutchinson, 
Hyde,  Kemble,  Kingsley,  Kirkland,  Loomis,  McNitt,  Max- 
well, Miller,  Munro,  Nellis,  Nicholas,  Nicoll,  O'Conor, 
Patterson,  Penniman,  Perkins,  Porter,  President,  Rhoades, 
Riker,  Russell,  St.  John,  Sanford,  Sears,  Shaw,  Sheldon, 
W.  H.  Spencer,  Stow,  J  J.  Taylor,  W.  Taylor,  Tilden, 
Tuthill,  VV.  B.  Wright  -59. 

NOKS—  Messrs.  Ayrault,  F.  F.  Backus,  Baker,  Bowdish, 
Bull,  Burr,  Candee,  Chamberlain,  Clark,  Conely,  Dana, 
Harrison,  Hotchkiss,  Hunt,  Jones,  Kennedy,  Kernan,  Mann, 
McNeil,  Morris,  Murphy,  Parish,  Richmond,  Salisbury, 
Shaver,  Shepard,  Smith,  E.  Spencer,  Stephens,  bwack- 
hamer,  Taft,  Tallmadge,  Townsend,  Vache,  Van  Schoon- 
hoven,  Warren,  White,  Willard,  Witbeck,  Wood,  Yaw- 
ger,  Young,  Youngs—  43. 

Mr.  PERKINS  moved  to  insert  as  a  separate 
section  the  seventh  section  of  the  report  of  the 
select  committee  made  yesterday  by  Mr.  AY- 


fj —Excessive  bail  shall  not  be  required,  nor  excessive 
fines  imposed,  nor  shall  cruel  and  unusual  punishments 
be  inflicted. 

Mr.  MURPHY  moved  to  add  "  nor  shall  wit- 
nesses be  unreasonably  detained." 

Mr.  PATTERSON  asked  how  long  unreasona- 
bly was? 

Mr.  MURPHY  inquired  in  reply  —  how  much 
excessive  was  ?  What  he  desired  was  to  as- 
sert a  liberal  principle  in  regard  to  the  imprison- 
ment of  witnesses,  similar  to  that  in  regard  to 
bail. 

Mr.  TALLMADGE  adverted  to  the  evil  prac- 
tices that  arose  from  this  system  of  imprisoning 
witnesses  and  urged  the  necessity  of  providing 
a  remedy. 

Mr.  JONES  moved  the  previous  question  on 
the  section  and  the  amendments.  There  was  a 
second  and  the  main  question  ordered. 

Mr.  MURPHY'S  amendment  was  then  adopted, 
Ayes  103. 


The  section  as  amended  was  then  adopted. 

The  section  on  motion  of  Mr.  HOFFMAN  was 
then  divided  so  as  to  form  two  sections. 

Mr.  HARRIS  then  moved  to  insert  the  four 
sections  in  relation  to  the  feudal  tenures  in  this  ar- 
ticle as  follows : 

§1.  All  feudal  tenures,  of  every  description,  with  all 
their  incidents,  are  declared  to  be  abolished;  saving,  how- 
ever, all  rents  and  services  certain  which  at  any  time 
heretofore  have  been  lawfully  created  or  reserved. 

(j2.  All  lands  within  this  state  are  declared  to  be  allodial, 
so  that,  subject  only  to  the  liability  to  escheat,  the  entire 
and  absolute  property  is  vested  in  the  owners  according  to 
the  nature  of  their  respective  estates. 

§3.  No  lease  or  grant  of  agricultural  land  for  a  longer 
peiiod  than  seven  years,  hereafter  made,  in  which  shall 
be  reserved  any  rent  or  service  of  any  kind,  shall  be  valid* 

(5  4.  All  fines,  quarter  sales,  or  other  charges  upon  alien- 
ation reserved,  in  any  grant  of  land  hereafter  to  be  made, 
shall  be  void- 

Mr.  NICHOLAS  said  that  if  these  sections  ap- 
plied also  to  city  property,  we  should  see  a  great 
war  against  it  here.  He  objected  to  making  these 
restrictions  solely  for  country  property.  He  con- 
sidered it  unjust. 

Mr.  RUGGLES  asked  if  it  was  not  better  to 
adopt  the  provisions  of  the  revised  statutes  on  the 
subject  entire.  The  sections  adopted  the  other 
day  declares  that  feudal  tenures  were  abolished, 
and  that  all  lands  are  allodial,  subject  only  to 
escheat,  but  they  do  not  declare  the  grounds  on 
which  that  liability  shall  exist.  Mr.  R.  read  the 
provisions  of  the  revised  statutes  alluded  to,  as 
showing  the  grounds  on  which  an  escheat  should 
be  enforced.  He  urged  that  it  was  equally  im- 
portant that  these  provisions  should  be  inserted 
in  the  Constitution,  in  order  that  the  rights  of  the 
state  should  be  declared  at  the  same  time  as  were 
those  of  individuals. 

Mr.  NICHOLAS  remarked  that  the  adoption  of 
the  course  suggested  by  Mr.  R.,  would  remove 
his  objections  to  the  subject. 

Mr.  PATTERSON  briefly  sustained  the  propo- 
sition as  introduced  by  Mr.  HARRIS. 

Mr.  SIMMONS  concurred  in  the  views  sugges- 
ted by  Mr.  RUGGLES.  Mr  S.  objected  to  the 
proposition  for  shortening  the  term  of  leases  as  in- 
terfering with  the  rights  of  the  citizen.  He 
would  not  go  for  any  such  pretence  as  this,  of  a 
general  law,  which  in  reality  was  intended  only 
as  a  stab  at  the  patroon.  He  desired  to  get  rid  of 
these  evils  as  much  as  any  man,  and  would  go  for 
a  proposition  to  authorise  the  legislature  to  as- 
sume the  exercise  of  eminent  domain,  and  take 
possession  of  these  estates  for  the  protection  of 
the  public  peace,  suitably  indemnifying  the  own- 
er therefore.  The  only  object  he  could  see  in 
this  proposition  was  to  influence  votes  for  Gover- 
nor, and  he  was  not  willing  to  lend  himself  to 
any  such  object. 

Mr.  BROWN  asked  the  gentleman  from  Alba- 
ny what  was  to  be  the  effect  of  the  proposition 
1$  the  case  where  a  tract  of  land  was  to  be  leased 
for  agricultural  and  manufacturing  purposes  ? 

The  CHAIR  said  the  section  in  relation  to 
leases  was  not  under  consideration. 

Mr.  BROWN  said  the  gentleman  could  answer 
him  when  the  question  was  under  consideration. 

Mr.  BERGEN  asked  for  the  previous  question, 
and  there  was  a  second,  and  the  main  question 
ordered. 

The  second  section  was  adopted. 


1063 


The  third  section  was  then  read. 

Mr.  PERKINS  urged  that  the  adoption  of  a 
provision  of  this  kind  in  the  Constitution  would 
be  dangerous,  although  it  might  be  very  well  as 
a  mere  matter  of  legislation.  He  desired  to  see 
manorial  estates  brought  to  a  close,  and  broken 
up,  and  was  willing  to  aid  in  any  effort  to  attain 
that  end  which  did  not  interfere  with  the  rights 
of  the  owner.  He  thought  this  could  be  attained 
best  by  some  provision  in  relation  to  bequests  of 
these  lands. 

Mr.  N1COLL  moved  to  amend  by  inserting 
*'  twelve"  instead  of  "  seven,"  as  the  term  of  the 
lease.  He  asked  for  the  previous  question. 

There  was  a  second,  and  the  main  question  or- 
dered. The  amendment  of  Mr.  NICOLL  was 
adopted — ayes  71,  nays  31. 

The  section  was  then  adopted.  Ayes  58,  nays  49. 

The  fourth  section  was  then  read. 

Mr.  NICOLL  moved  to  strike  out  the  words 
«*  other  charges,"  as  tending  to  impede  the  aliena- 
tion of  property.  The  word  ««  charge"  was  very 
vague  and  indefinite,  and  indeed  might  conflict 
with  the  provisions  of  the  preceding  sections. 

Mr.  HARRIS  did  not  think  the  section  liable 
to  the  criticism  of  Mr.  N.  It  had  been  the  poli- 
cy in  reference  to  these  large  estates  to  prevent 
alienation.  This  section  was  intended  to  destroy 
this  policy.  Mr,  H.  further  explained  and  advo. 
cated  his  proposition.  There  was  no  earthly  rea- 
son why  land  shouW  not  be  as  freely  transl'ened 
as  personal  property. 

Mr.  SIMMONS  and  WATERBURY  continued 
the  debate. 

Mr.  RUGGLES  had  long  been  if  the  opinion 
that  these  quarter  sales  and  other  restraints  upon 
alienation,  in  these  long  leases,  were  not  only  un- 
favoiable  to  the  interest  of  the  tenant  but  also  ol 
the  landlord.  Whether  that  was  so  or  not,  he 
was  ot  the  opinion  that  they  should  be  abolished> 
and  he  had  been  surprised  that  some  law  had  not 
long  since  been  parsed  doing  them  away.  But  he 
objected  to  this  section  as  extending  too  far  and 
reaching  conditions  in  short  leases,  for  village  lots 
&c.,  necessary  for  the  protection  of  the  owner  of 
the  land.  He  should  offer  for  the  section  the  fol- 
lowing substitute : 

"  All  fines,  quarter  sales,  or  other  like  restraints  upon 
alienation  reserved  in  any  lease  of  agricultural  lands  for 
lile  or  for  a  longer  term  than  five  years  hereafter  ta  be 
made  shall  be  void. 

Mr.  NICHOLAS  thought  this  section  would 
operate  unfavorably  upon  the  owners  of  small 
farms  throughout  the  state,  and  he  referred  to  the 
case  of  a  lease  of  lands  by  a  widow  for  the  bene- 
fit of  her  infant  children.  It  was  all  wrong  in 
principle. 

Mr.  MANN  wanted  the  word  "  agricultural" 
added  before  '*  land,"  if  the  section  was  to  be 
adopted. 

Mr.  MORRIS  hoped  this  section  would  not  be 
adopted.  We  had  gone  as  far  as  we  should  when 
we  had  limited  these  leases,  whether  in  city  or 
country,  to  12  years. 

The  debate  was  farther  continued,  by  Messrs. 
WORDEN  and  HARRIS. 

Mr.  BERGEN  moved  the  previous  question 
and  it  was  seconded. 

The  amendment  of  Mr.  NICOLL  was  agreed 
to,  ayes  49,  noes  48. 


The  question  then  came  up  on  the  substitute  of 
Mr.  RUGGLES. 

Mr.  HARRIS  moved  to  add  the  words  "  or 
grant"  after  "  lease."  Ruled  out  of  order,  the 
previous  question  having  been  ordered. 

The  substitute  was  rejected,  ayes  34,  noes  61. 

Mr.  HARRIS  asked  unanimous  consent  to  in- 
sert in  the  original  section  the  words  "  or  1: ke 
restraints"  in  lieu  of  those  stricken  out. 

Objection  was  made. 

Mr.  HARRIS.  Then  I  must  vote  gainst  the 
section.  It  is  perfectly  useless  as  it  stands. 

The  section  was  rejected,  ayes  37,  noes  66. 

Mr.  RUGGLES  now  offered  the  following, 
which  is  the  first  section  of  the  Revised  Statutes  : 

\  — .  The  people  of  this  state,  in  their  right  of  sovereign- 
ty, are  deemed  to  possess  the  original  and  ultimate  pro- 
perty in  and  to  all  lands  within  the  jurisdiction  of  the  state; 
and  all  lands,  the  title  to  which  shall  fail,  from  a  delect  of 
heirs,  shall  revert  or  escheat  to  the  people. 

Mr.  R.  said  if  this  should  prevail,  he  should 
move  a  reconsideration  of  the  first  two  sections 
just  adopted. 

Mr.  HARRIS  could  see  no  objection  to  the 
adoption  of  this  section.  It  should  precede  those 
already  adopted.  But  he  was  entirely  opposed 
to  the  reconsideration  of  what  had  been  adopted. 

The  section  was  adopted  nem  con. 

Mr.  RUGGLES  laid  on  the  table  a  notice  to 
reconsider  the  first  two  just  adopted. 

Mr.  HARRIS  offered   the  following  section  :— 

§  — .  All  lines,  quarter  sales,  or  other  like  restraints  up- 
on alienation  reserved  in  any  grant  of  land,  hereafter  to  be 
made,  shall  be  void. 

Mr.  NICOLL  raised  the  question  of  order  that 
this  being  in  effect  what  had  j  ust  been  voted  down, 
could  not  be  received. 

The  CHAIR  could  not  thus  rule  it  out. 

Mr.VAN  SCHOONHOVEN  supported  the  sec- 
tion. 

Mr.  BAKER  moved  the  previous  question,  and 
it  was  seconded. 

The  section  was  adopted,  ayes  62,  nays  39. 
RIGHTS.  PRIVILEGES,  &c. 

The  llth  section  was  then  read,  as  follows,  and 
adopted  : 

§11,  No  purchase  or  contract  for  the  sale  of  lands  in 
this  state,  made  since  the  fourteenth  day  of  October,  one 
thousand  seven  hundred  and  seventy-five;  or  which  may 
hereatter  be  m&de,  ol,  or  with  the  Indians,  shall  be  valid, 
unless  made  under  the  authority,  and  with  the  consent  of 
the  Legislature. 

Tht?  12th  section  was  then  read  : 

§  12.  Such  parts  of  the  common  law,  and  of  the  acts  of 
the  Legislature  of  the  Colony  ot  New  York,  as  together 
did  form  th«  law  of  the  said  colony,  on  the  nineteenth  day 
of  April,  one  thousand  seven  hundred  and  seventy-five 
and  the  resolutions  of  the  Congress  ol  the  said  Colony,  and 
of  the  Convention  of  the  State  of  New  Yoik,  in  force  on 
the  twentieth  day  of  April,  one  thousand  seven  hundred 
and  sev  euty-seven,  which  have  not  since  expired,  or  been 
repealed  or  altered;  and  su^-h  acts  ot  the  Legislature  of 
this  State  as  are  now  in  force,  shall  be  and  continue  the 
law  of  this  State,  subject  to  such  alterations  as  the  Legis- 
lature shall  make  concerning  the  same.  But  all  such 
parts  ol  tlie  common  Jaw,  and  such  of  the  said  acts,  or 
parts  thereof,  as  are  repugnant  to  this  Constitution,  are 
hereby  abrogated. 

Mr.  NICOLL  moved  to  amend  by  adding  as  fol- 
lows: 

And  the  Legislature,  at  its  first,  session  after  the  adoption 
of  this  Constitution,  sliail  appoint  five  cormni>&ioners, 
whose  duty  it  shall  he  to  reduce  into  a  written  and  system- 
atic code  the  whole  body  of  the  law  of  this  State,  or  so 
much  aid  such  parts  thereof  ts  to  the  said  commissioners 


1064 


shall  seem  practicable  and  expedient.  And  the  said  com- 
missioners shall  specify  such  alterations  and  amendments 
therein  as  they  shall  deem  proper,  and  they  shall  at  all 
times  mak«  reports  of  their  proceedings  to  the  Legislature, 
•when  called  upon  to  do  so;  and 

I,  The  Legislature  shall  pass  laws  regulating  the  tenure  of 
office,  the  filling  of  vacancies  therein,  and  the  compensa- 
tion of  the  said  commissioners;  and  shall  also  provide  for 
the  publication  of  the  said  code',  prier  to  its  being  present- 
ed to  the  Legislature  for  adoption. 

Mr.  RICHMOND  moved  to  strike  out  «  five," 
and  to  insert  "  three,"  as  the  number  of  the  com- 
mittee. 

Mr.  JONES  asked  for  the  previous  question, 
and  there  was  a  second,  and  the  main  question 
ordered. 

Mr.  RICHMOND'S  amendment  was  adopted— 
51  to  42. 

The  proposition  of  Mr.  NICOLL,  as  amended, 
was  then  adopted— ayes  65,  nays  37. 

The  question  was  then  taken  on  the  section  as 
amended,  and  it  was  adopted*— ayes  60,  noes  45. 

Mr.  VAN  SCHOONHOVEN  laid  on  the  table 
a  motion  to  reconsider  the  vote  just  taken. 

Mr.  TOWNSEND  offered  a  substitute  for  the 
seventh  section. 

The  Chair  said  the  motion  was  not  now  in  or- 
der. 

The  seventh  section  was  then,  read  : 

^13'  All  grants  of  land  within  this  State,  made  by  the 
King  of  Great  Britain,  or  persons  acting  under  his  au- 
thority, alter  the  fourteenth  day  of  October,  one  thousand 
seven  hundred  and  seventy-five, .  shall  be  null  and  void; 
but  nothing  contained  in  this  Constitution  shall  effect  any 
grants  of lind  within  this  State,  made  by  the  authority  of 
the  said  king  or  his  predecessors,  or  shall  annul  any  char- 
ters to  bodies  politic  and  corporate,  by  him  or  them  made, 
before  that  day;  or  shall  afl'ect  any  such  grants  or  char- 
ters since  made  by  this  State,  or  by  persons  acting  vinder 
its  authority  or  shall  impair  the  obligation  of  any  debts 
contracted  by  the  State,  or  individuals,  or  bodies  coipo- 
rate,  or  any  other  right  of  property,  or  any  suits,  action, 
or  oiher  proceedings  in  courts  of  justice. 

Mr.  DODD  asked  for  the  previous  question, 
but  it  was  not  seconded. 

Mr.  MURPHY  proposed  the  following  amend- 
ment : 

"  But  such  charters  to  bodies  politic  or  corporate,  made 
by  the  King  of  England,  shall  have  no  other  or  greater 
eft'ect  by  virtue  of  this  section,  than  similar  charters  gran- 
ted by  law  in  this  State." 

Mr.  ALLEN  opposed  the  amendment. 

Mr.  BASCOM  moved  to  strike  out  the  last  two 
lines  of  the  section  as  being  entirely  unnecessary. 
Lost. 

The  debate  was  continued  by  Messrs. SIMMONS, 
O'CoNOR,  STETSON,  WORDEN  and  RUSSELL. 

Mr.  WORDEN  moved  the  previous  question 
and  it  was  seconded,  49.  to  40. 

The  amendment  of  Mr.  MURPHY  was  nega 
tived,  68  to  30. 

The  section  was  agreed  to,  69  to  23. 

The  Convention  then  adjourned. 


AFTERNOON  SESSION. 

Mr.  ST.  JOHN  ottered  the  following  additional 
section  to  the  first  article: 

^ .  The  rents  and  profits  of  all  real  estate  owned  by 

the  wife  at  the  time  of  her  marriage,  and  the  rents  and  pro- 
fits of  all  real  estate  acquired  by  her  afterwards,  by  gift 
devise  descent  or  otherwise,  than  from  her  husband,  shall 
be  her  separate  property,  and  such  property  shall  in  no 
case  be  taken,  without  the  consent  of  the  wife,  to  pay  the 
debts  of  the  hu<band. 

Mr.  NICHOLAS  moved  to  lay  it  on   the   table. 
Agreed  to,  53  to  39. 


Mr.  TOWNSEND  offejed  the  following  sec- 
tion : — 

^  — .  The  home  of  every  family  shall  be  held  sacred 
rom  civil  process — taan  amount  not  exceeding  $600 — for 
debts  created  after  tire  adoption  of  this  constitution  ;  and 
fhe  legislature  shall  provide  for  an  appraisement  by  a  jury 
if  the  value  ol  any  real  or  personal  estate-so  held. 

Mr.  T.  said  that  as  every  proposition  tending  to 
favor  the  principle  of  allowing  the  property  of 
women  to  rest  undisturbed  by  the  pecuniary  mis- 
fortunes of  their  husbands,  had  been  eventually 
annulled  by  the  Convention,  he  hoped  the  prin- 
ciple shadowed  forth  in  the  section  now  present- 
ed would  at  least  meet  with  favor. 

If  he  understood  the  views  of  the  large  busi- 
ness and  creditor  interest  of  the  state  on  this  ques- 
tion, it  was  not  as  to  the  amount  of  exemption 
that  might  be  recognized,  but  that  the  sum  should 

fixed  permanently,  and  not  held  subject  to  the 
caprice  of  legislators,  from  year  to  year,  as  they 
might  be  influenced  by  the  clamor  of  local  and 
temporary  excitements.  On  these  grounds  he 
had  deemed  some  provision  of  this  nature  of  high 
importance  in  the  Constitution,  if  the  principle 
of  allowing  any  property  to  be  held  privileged 
from  the  operation  of  our  collection  laws,  was 
deemed  advisable.  To  show  that  there  was  no 
startling  novelty  in  this,  he  would  but  for  a  mo- 
ment glance  at  what  had  been  the  action  of  the 
Legislature  from  time  to  time  in  the  matter.  In 
the  "supply  bill,"  laws  of  181$  page  193,  twenty 
sheep,  one  cow,  two  swine,  and  all  necessary 
wearing  apparel,  of  a  house  holder,  were  made 
exempt  for  five  years.  Chapter  227,  of  laws  of 
1815,  reduced  the  number  of  sheep,  but  extended 
the  principle  to  a  greater  number  of  articles. — 
By  a  law  of  1824,  chap.  238,  the  principle  was 
made  permanent,  and  again  extended,  and  includ- 
ed pews,  prayer-books,  &c.,  &c.  The  Revised 
Statutes  adopted  the  idea,  to  the  full  extent  of 
existing  laws,  including  library,  family  pictures, 
&c.  Thus  the  question  stood,  until  the  year 
1842,  when  the  privilege  was  further  extended, 
in  the  sum  of  $150,  leaving  the  matter  in  such  a 
position  that  a  debtor  with  but  a  moderate  elasti- 
city of  conscience,  can  find  legal  justification  for 
holding  certainly  over  a  thousand  dollars  in  value 
of  property,  exempt  from  his  debts — particularly 
if  he  happens  to  worship  in  one  of  the  fashiona- 
ble and  splendid  structures  that  now  adorn  many 
of  our  cities. 

How  much  preferable  would  it  appear,  to  name 
some  specific  sum,  beyond  which  the  privilege 
could  not  apply,  and  require  the  legislature  by 
appropriate  laws,  to  provide  an  appraisement  by 
an  inquest  of  the  debtor's  own  neighbors,  of  the 
value  of  the  property,  real  and  personal,  sought 
to  be  made  sacred,  and  the  propriety  of  their  res- 
ervation in  view  of  the  number,  locality,  and  cir- 
cumstances of  the  family.  It  would  be  conceded 
he  thought,  by  many  legal  gentlemen,  in  his 
hearing,  that  some  provision  of  this  nature  would 
work  great  good,  in  allaying  many  of  the  painful 
vicissitudes  that  the  circle  of  the  domestic  fire- 
side now  endures,  from  results  over  which,  in 
many  cases,  they  have  not  but  remote,  if  any 
control. 

His  personal  views  upon  this  subject,  would 
probably  at  the  present  era,  meet  with  but  few 
supporters  in  a  body  peculiarly  constituted,  as 
this  was.  They  extended  to  the  degree  of  leav- 


1065 


ing  all  debts,  where  no  fraud  had  existed  in  their 
inception,  a  matter  of  HONOR.  The  doctrine,  he 
would  remark,  so  startling  here,  was  extensively 
held  by  many  of  the  most  responsible  men  of  the 
community.  A  few  lines  from  a  recent  editorial 
in  the  first  commercial  paper  iff  the  Union,  (the 
Journal  of  Commerce,)  would  not  be  inappro- 
priate here,  and  he  would  ask  the  attention  of 
gentlemen  to  them  : 

"  These  reforms,  for  which  we  should  think  public  sen- 
timent might  be  speedily  prepared,  would  strike  oli  half 
the  labor  of  the  legislature,  and  half  the  patronage,  at  a 
stroke.  It  would  be  a  most  glorious  restoration  to  the 
people  ot  their  unalienable  rights. 

"  The  public  have  determined  that  they  will  not  com- 
mit cititens  to  jail  for  debt,  nor  tor  militia  fines,  in  time  of 
peace.  It  must  come  up  for  grave  consideiation  at  no  dis- 
tant day,  whether  the  state  is  responsible  for  the  collection 
of  debts  at  all.  Whether  if  a  citizen  parts  with  bis  prop- 
erty without  an  equivalent,  that  is,  delivering  it  on  credit, 
he  shall  have  a  right  to  call  on  government  to  reinstate 
him  in  the  possession.  There  are  a  multitude  of  details 
connected  with  this  thought,  which  it  is  not  necessary 
now  to  pursue.  The  questions  of  government  superin- 
tendence of  education  and  of  alms,  are  great  questions, 
and  will  ere  long  come  up  for  discussion.  There  are  many 
men  already,  who  think  that  education  would  be  as  much 
benefited  as  religion  has  been  by  the  withdrawal  of  gov- 
ernment interference." 

We  need  not  fear  but  that  the  commercial 
classes,  who  under  our  collection  and  banking 
laws  of  the  past  half  century,  have  in  the  pro- 
portion of  95  out  of  every  100,  at  least  in  our  cit- 
ies, sunk  under  insolvency,  are  fully  prepared 
from  sad  experience  for  this  change,  from  a  sys- 
tem that  has  worked  for  them  so  much  of  evil 
and  sorrow.  It  was  proper  here  to  say,  that  of 
our  course  where  pledges  of  property  existed, 
and  no  credit  was  given,  every  proper  remedy 
should  maintain  the  lien  thus  created.  And  in 
cases  of  fraudulent  representation  as  an  induce- 
ment for  credit,  effectual  and  summary  justice 
should  follow  the  delinquent.  He  had  originally 
in  the  resolution,  named  $1000  ;  he  would  at  the 
request  of  some  gentlemen  name  $600  instead 
and  in  addition  at  their  request  that  a  direct  vote 
(however  small,)  might  be  obtained,  move  the 
previous  question. 
There  was  a  second. 
The  proposition  was  negaiived,  11  to  76. 
Mr.  SIMMONS  moved  a  reconsideration  of  the 
vote  taken  yesterday  upon  the  amendment  of  Mr 
TAGGART,  relating  to  the  qualification  of  witnes 
ses. 

Mr.  BRUCE  advocated  a  reconsideration. 
Mr.  WORDEN  moved   the  previous  question 
and  there  was  a  second. 

The  motion  to  reconsider  was  lost. — Ayes  4S 
nays  64. 

Mr.  WORDEN  moved  that  the  1st  article  b< 
adopted  and  ordered  to  be  engrossed.  Agreed  to 
68  to  38. 

ARTICLE  II-ELECTIVE  FRANCHISE. 
Mr.  O'CONOR  proposed  the  following  as  the  Is 
section  of  the  2d  article: 

^  1.  Every  male  citizen  of  the  age  of  21  years,  who  shall 
have  been  an  inhabitant  ot  this  State  for  one  year  nextpre 
ceding  any  election,  and  for  the  last  three  months  a  re  si 
dent  of  the  county  where  he  may  offer  his  vote,  shall  b 
entitled  to  vote  in  the  town  or  ward  where  he  actually  re 
sides,  and  not  elsewhere,  for  all  officers  that  now  are  01 
hereafter  may  be  elective  by  the  people.  But  no  man  o 
color,  unless  he  shall  have  been  for  three  years  a  residen 
•f  this  State,  and  for  »ne  year  next  preceding  any  elec 
tion  shall  be  seized  and  possessed  of  a  freehold  estate  of  thi 
value  of  two  hundred  and  fifty  dollars,  over  and  above  al 

108 


lebts  and  ineumbrances  charged  thereon,  and  shall  have 
t>en  actually  rated  and  paid  a  tax  thereon,  shall  be  enti- 
led to  vote  at  such  election.  And  no  person  of  color  shall 
>e  subject  to  direct  taxation,  unless  he  shall  be  seized  and 
>ossesied  of  such  real  estate  as"  aforesaid. 

Mr.  STOW  moved  the  following  as  a  substitute : 

}  1.  Every  male  citizen  of  the  age  of  21  years,  who  shall 

lave  bOfto  a  citizen  for  ten  days,  and  an  inhabitant  ot  this 

itate  one  year  next  preceding  any  election,  and  for  the  last 
oui  months  a  resident  of  the  county  where  he  may  offer 

is  vote,  shall  be  entitled  to  vote  at  such  election  in  the 
election  district  of  which  he  shall  at  the  time  be  a  resident, 
and  not  elsewhere,  for  all  officers  that  now  are  or  hereafter 
may  be  elective  by  the  people;  but  such  citizen  shall  have 
been  for  thirty  days  next  preceding  the  election,  a  resident 
of  the  district  from  which  the  officer  is  to  be  chosen  for 
whom  he  offers  his  vote.  But  no  man  of  color,  &c.,  (as 
above.) 

Mr.  STOW  and  Mr.  KIRKLAND  debated  the 
amendment. 

Mr.  JONES  moved  to  strike  out  "  a  citizen  for 
10  days,"  and  Mr.  STOW  moved  the  previous 
question,  and  it  was  seconded.  The  amendment 
of  Mr.  JONES  was  lost,  51  to  59. 

Mr.  RUSSELL  moved  to  strike  out  30  days  and 
insert  10. 

Mr.  HOFFMAN  opposed  the  amendment 

Mr.  O'CONOR  supported  it,  and  Mr.  HUNT 
and  Mr.  MURPHY  followed  on  the  other  side, 
when  the  amendment  was  negatived,  ayes  27, 
noes  80. 

Mr.  DANA  moved  to  strike  out  "four  months" 
and  insert  "  three  months."  Lost. 

The  amendment  of  Mr.  STOW  was  agreed  to, 
ayes  79,  noes  29. 

Mr.  FLANDERS  moved  to  strike  out  all  that 
relates  to  qualifications  of  colored  persons. 

Mr.  BRUCE  advocated  this  motion  with  great 
earnestness. 

The  previous  question  was  moved  and  second- 
ed, and  the  motion  of  Mr.  F.  was  negatived,  ayes 
28,  noes  75. 

The  section  as  amended  on  motion  of  Mr.  STOW, 
was  agreed  to — ayes  72,  noes  30. 

Mr.  SIMMONS  moved  the  following  tariff  law 
to  promote  education,  as  section  two  of  this  arti- 
cle : — 

^  -2.  No  person  born  after  the  adoption  of  this  Constitu- 
tion, shall  be  entitled  to  vote  unless  he  shall  be  able,  at 
the  time  he  oft'ers  his  vote,  to  read  and  write  the  English 
language. 

Mr.  MURPHY  moved  to  add  the  word  "  well." 
(Laughter.) 

Mr.  BERGEN  moved  to  insert  "  and  Dutch," 
after  "  English."  He  said  there  were  a  great 
many  Dutch  families  still  in  this  country,  who 
ought  not  to  be  deprived  of  the  right  to  vote. — 
[Laughter.] 

Mr.  N1COLL  did  not  lik«  fc>  see  this  matter, 
which  was  exceedingly  well  meant,  and  if  It 
were  practicable  would  be  very  desirable,  treat- 
ed with  levity,  and  he  hoped  the  gentleman  from 
Essex  would  withdraw  his  proposition. 

Mr.  SIMMONS  advocated  his  motion. 

Mr.  MURPHY  was  one  of  those  who  believed 
"  a  little  learning  to  be  a  dangerous  thing." 

Mr.  JONES  moved  to  lay  the  section  on  the  ta- 
ble. Agreed  to. 

The  section  of  Mr.  BOUCK'S  report  was  then 
read,  as  follows : 

§  -2.  Laws  may  be  passed  excluding  from  the  right  of 
suit'rage  all  persons  who  have  been,  or  may  be  convicted 
of  bribery,  of  larceny,  or  of  any  infamous  crime:— and  lor 
depriving  every  person  who  shall  have  a  b£t  or  wager  de  • 


1066 


pending  upon  the  direct  or  indirect  result  of  any  election, 
from  the  right  to  vote  at  such  election. 

Mr.  RHOADES  moved  to  amend  by  substitu- 
ting tor  the  last  clause  as  follows : — 

'<  And  for  depriving  every  person  who  shall  make,  or  be- 
come directly  or  indirectly  interested  in,  any  bet  or  wager 
depending  upon  the  result  of  any  election  from  the  right 
to  vote  at  such  election." 

Messrs.  RHOADES,  NICOLL,  BASCOM, 
RICHMOND  and  E.  HUNT1NGTON  debated 
this  proposition. 

Mr.  CROOKER  offered  the  following  amend- 
ment to  the  amendment : — 

Add — "  Laws  shall  be  passed  to  define  the  meaning  of 
the  term  '  man  of  color,'  as  used  in  the  preceding  section, 
und  rules  snail  be  established  for  determining  questions  re- 
lating thereto,  that  may  arise  under  it.  But  no  person  shall 
be  considered  a  man  of  color  in  whom  the  white  blood  pre- 
dominates." 

Mr.  ANGEL  moved  the  previous  question,and 
it  was  seconded. 

Mr.  CROOKER'S  amendment  was  lost. 

The  amendment  of  Mr.  RHOADES  was  agreed 
to. 

The  section  was  adopted. 

The  3d  section  was  read  as  follows  : — 

§  3.  Laws  may  be  passed  providing  that  alter  the  year 
one  thousand  eight  hundred  and  titty  five,  no  person  shall 
have  the  right  of  suffrage  under  this  Constitution  unless 
he  can  read  the  English  language. 

Mr.  DORLON  advocated  the  section. 

Mr.  RUUGLES  thought  this  mutter  ought  to  be 
treated  seriously,  and  he  proposed  to  amend  so 
that  it  should  not  affect  those  who  are  now  elec- 
tors,  by  inserting  after  ''person"  ihe  words  "not 
now  an  elector,"  and  striking  out  55  and  inserting 
60. 

Mr.  W.  TAYLOR  thought  we  should  place  no 
sucii  restriction  in  the  constitution.  All  that 
could  be  done  for  the  instruction  of  the  people, 
should  be  done;  but  the  unfortunate  should  not 
be  excluded  by  a  provision  like  this. 

Mr.  PATTERSON  concurred  with  Mr.  T.  A 
person  might  become  blind,  and  would  thus  be 
incapacitated  and  excluded  from  the  franchise. 

Air.  BERGEN  moved  to  add  the  words  "and 
Dutch"  (as  before.) 

Mr  GREENE  moved  to  strike  out  and  insert,  so 
that  the  section  would  read  as  follows  : 

"After  the  year  1S55,  r.o  person  shall  acquire  the  right 
to  Vi-te  under  this  constitution,  unless  he  can  read  and 
write,  except  in  cases  of  physical  inability." 

Mr.  MORRIS  opposed  all  provisions  of  the  kind. 
Give  the  ignorant  a  right  to  vote,  and  fheri  the 
wealthy,  who  would  be  effected  by  those  votes, 
would  iind  it  to  their  interest  to  extend  the  bene- 
fits of  education. 

Mr.  NICOLL  moved  the  previous  question  on 
the  amendment  of  Mr,  RUGGLES,  and  there  was 
a  second,  when  the  amendment  was  lost. 

Mr.  GREENE  advocated  his  amendment. 

Mr.  HUlCHlNSON  moved  the  previous  ques- 
tion on  the  whole  maMet,  and  it  was  seconded. 

The  amendment  of  Mr.  GREENE  was  lost. 

The   section  was  also  negatived — a\es  G,   nays 

75. 

i'he  4th  section  was  read  as  follows,  and  agreed 

to: — 

§  4.  For  the  purpose  of  voting,  no  person  shall  be  deemed 
to  have  gained  or  lose  a  residence,  by  reason  of  his  pres- 
«.  nee  or  absence,  while  employed  in  the  service  of  the  Uni- 
Jed  States;  nor  while  engaged  in  the  navigation  of  the  wa- 


ters of  this  State,  or  of  the  United  States,  or  of  the  high 
seas;  nor  while  a  student  of  any  seminary  of  learning;  nor 
while  kept  at  any  elms  house,  or  other  asylum,  at  public 
expense;  nor  while  confined  in  any  public  prison. 

Mr,  MORRIS  njpved  the  following  additional 
section — to  lie  on  Tne  table  : 

— .  Laws  shall  be  passed  compelling  parents  and  guar- 
dians to  afford  their  children  an  opportunity  to  acquire  a 
good  English  education. 

The  fifth  section  was  read  as  follows,  and  agreed 
to:— 

5.  Laws  shall  be  made  for  ascertaining  by  proper 
proofs  the  citizens  who  shall  be  entitled  to  the  right  of 
suffrage  hereby  established. 

The  sixth  section  was  then  read,  as  follows: 
§  6.  All  elections  by  the  citizens   shall  be  by  ballot,  ex- 

cept  for  such  town  officers  as  may  by  law  be  directed  to  be 

otherwise  chosen. 

Mr.  TAGGART  moved  to  insert  "and  village," 
after  "town."  Lost. 

The  section  was  agreed  to. 

The  seventh  section  was  read,  as  follows  : 

§7.  Every  elector  of  this  State  shall  be  eligible  to  any 
orhce  under  this  Constitution,  except  as  herein  otuerwUe 
provided.  But  no  person  shall  be  elected  or  appointed  to 
local  office,  who  is  not  an  elector  in  the  district,  county, 
city,  town  or  ward,  for  which  he  may  be  elected  or  ap- 
pointed. 

Mr.  BASCOM  moved  to  strike  it  out.  Agreed 
to. 

The  eighth  section  was  read,  as  follows: 
5}  8.  No  person  holding  an  office  or  place  of  public  trust, 
in  or  under  the  government  of  the  United  S'ates,  shall  be 
eligible  to,  or  hold  any  office  or  place  of  public  trust,  un- 
der the  constitution  or  laws  of  this  State. 

Mr.  MARVIN  said  that  in  every  town  there 
was  a  postmaster;  and  there  were  also  many  little 
offices  which  were  a  burden  upon  the  citizens, 
such  as  school  inspector,  &c.,  which  the  post- 
master should  be  allowed  to  help  bear.  The  pro- 
vision here-was  sufficiently  made  in  another  ar- 
ticle. He  moved  to  strike  out  the  section. — 
Agreed  to. 

The  9th  section  was  read  as  follows : 
§  9.  Colored  male  citizens  possessing  the  qualifications 
required  by  the  first  section  of  this  article,  shall  also  have 
the  right  to  vote  for  all  officers  that  now  are,  or  hereafter 
may  be,  elective  by  the  people. 

This  was  recommended  to  be  submitted  sepa- 
rately. 

Mr.  RHOADES  moved  the  following  as  a  sub- 
stitute :— 

"  After  the  year  1848,  no  property  qualification  shall  be 
required  to  entitle  any  citizen  of  this  state  to  the  exercise 
of  the  right  of  suffrage."  ^ 

Mr.  MURPHY  moved  to  add— "  except  as  in 
this  article  provided."  Lost. 

Mr.  CAMBRELENG  thought  we  had  made  but 
little  progress  within  the  last  few  days.  This  sub- 
ject had  been  fully  discussed,  and  if  he  could  un- 
derstand the  sense  of  the  House,  it  was  willing  to 
allow  the  Constitution  to  stand  as  it  was.  He 
moved  the  previous  question. 

The  substitute  proposed  by  Mr.  RHOADES 
was  rejected,  ayes  30,  noes  53. 

Mr.  W.  TAYLOR  moved  to  amend  the  9th 
section  by  adding  after  "  article"  the  words  "  oth- 
er than  the  property  qualification,"  and  to  add  to 
the  section  "  after  the  first  day  of  Jan.,  1S47." 

Mr.  T.  moved  as  a  preamble  to  this  section, 
that  it  be  referred  to  the  select  committee,  with 
instructions  to  report  the  manner  of,  and  the  form 


1067 


of  the  ballot  for,  its  separate  submission  to  the 
people. 

Mr.  WARD  and  Mr.  WORDEN  supported  the 
motion  of  Mr.  T.  and  it  was  agreed  to — ayes  73, 
noes  26. 

Mr.  KENNEDY  moved  a  reconsideration. — 
Laid  on  the  table. 

Mr.  STOW  offered  the  following  additional 
sections,  and  proceeded  to  advocate  their  adop- 
tion : — 

^  — .  An  elector  owning  a  freehold,  or  having  an  unexpired 
term  of  not  l>ss  than  twenty-one  years  in  a  leasehold,  (now 
existing,)  may  by  an  instrument  executed  by  him  declare 
thai  he  intends  to  exempt  from  incumbrances  for  debt  the 
propeity  described  in  such  instrument  j  the  value  of  such 
property  shall  not  be  l-ss  than  one  hundred,  nor  more 
than  one  thousand  dollars. 

§  — .  The  value  of  the  property  mentioned  in  the  last 
section,  shall  be  ascertained  by  the  assessors  of  the  town 
or  ward  in  which  it  shall  be  situated,  who  shall  make  a 
certificate  of  their  appraisal.  Such  instrument,  and  such 
certificate  shall  be  acknowledged,  or  proved  in  the  manner 
entitling  a  deed  to  be  recorded,  and  shall  be  recorded  in 
the  clerk's  office  of  the  county  in  which  the  property  is 
situated,  and  notice  of  such  record  shall  be  published  in 
such  manner,  and  for  such  time  as  shall  be  prescribed  by 
law. 

After  such  record  and  notice  thereof  shall  have  been  du- 
ly published,  such  property  shall  not  be  incumbered  by 
or  for  any  debt  created  or  contracted  by  such  elector.— 
This  privilege  shall  not  enable  an  elector  to  hold  more 
than  one  piece  of  property  thus  exempt  at  the  same  time  ; 
and  such  exemption  shall  cease  whenever  he  shall  cease 
to  be  a  resident  of  this  state. 

Mr.  PERKINS  moved  to  lay  the  proposition 
on  the  table. 

Mr.  BASCOM  demanded  the  ayes  and  noes, 
and  the  motion  was  agreed  to,  ayes  47,  noes  41. 

Mr.  WARD  now  moved  that  the  article  be  a- 
greed  to  and  ordered  engrossed. 

Mr.  PATTERSON  called  for  the  ayes  and  noes 
on  this  motion,  and  it  was  agreed  to,  ayes  74 — 
noes  Messrs.  Bergen,  Cornell,  Flanders,  Jones, 
.Mann,  Murphy,  Nicoli,  Shepard,  Stephens 
Swackhamer,  White,  Youngs — 13. 

Mr.  MARVIN  moved  to  adjourn. 

Mr.  JONES  called  for  the  ayes  and  noes.  The 
motion  was  agreed  to,  52  to  31. 


WEDNESDAY,  (108th  day,)  Oct.  7. 

No  Clergyman  present. 

After  the  reading  of  the  Journal,  Mr.  MORRIS 
moved  to  lay  all  intervening  orders  on  the  table, 
and  tnat  the  Convention  proceed  to  the  unfinish- 
ed business.  Agreed  to. 

ARTICLL   III— THE   LEGISLATURE. 
The    first  and  second  sections  of  the  report  of 
Mr.  W.  TAYLOR,  as  amended,  was  read  and  pass- 
ed without  objection. 

The  third  section  was  read,  (the  apportion- 
ment of  Senate  districts,)  and  Mr.  HARRISON 
moved  a  reconsideration  of  the  vote  which  an- 
nexed Richmond  county  to  the  first  district,  with 
Suffolk  and  Queens. 

The  ayes  and  noes  were  ordered,  and  there 
were  Ayes  44,  Noes  53. 

Mr.  SMITH  made  the  like  motion  upon  the 
vote  changing  the  position  of  Delaware  and  Otse- 
go  counties  in  the  17th  and  18th  districts. 

Mr.  BURR  and  Mr.  DANA  opposed  the  motion 
to  reconsider. 

The  ayes  and  noes  were  demanded,  and  the 
Convention  agreed  to  reconsider.  Ayes  52,  noes 
39. 


Mr.  HARRIS  moved  to  amend  by  including 
Schenectady  in  the  17th  district.  Ruled  out  of 
order. 

Mr.  SMITH  moved  to  transpose  Otsego  to  the 
18th,  and  Delaware  to  the  17th  district. 

Mr.  PATTERSON  should  vote  against  the  mo- 
tion because  it  would  make  the  inequality  in  the 
two  districts  more  than  20,000  greater  than  at 
present. 

Mr.  JONES  moved  the  previous  qnestion,  and 
Mr.  HARRIS  demanded  the  ayes  and  noes  on  se- 
conding that  motion. 

The  House  ordered  the  main  question  to  be  put. 

The  motion  of  Mr.  SMITH  was  agreed  to,  Ayes 
49,  Noes  48. 

So  Schoharie  and  Delaware  are  to  constitute 
the  37th  district,  and  Otsego  and  Chenango  the 
18th. 

Mr.  O'CONOR  moved  to  reconsider  the  section 
for  the  purpose  of  changing  the  words  "contigu- 
ous territory  and  of  compact  form,"  in  the  para- 
graph relating  to  the  districts  in  the  city  of  New 
York,  to  the  following  : — "convenient  and  con- 
tiguous territory."  This  is  the  language  used  in 
the  section  relative  to  the  formation  of  Assembly 
districts. 

This  motion  was  debated  by  Messrs.  O'CONOR, 
PATTERSON  and  MORRIS. 

Mr.  TAGGART  moved  the  previous  question 
and  there  was  a  second. 

The  motion  to  reconsider  was  agreed  to,  70  to 
31. 

Mr.  O'CONOR  then  moved  his  amendment, 
(see  above)  and  also  adding  the  words  "excluding 
aliens  and  persons  of  color  not  taxed  ;  "  also, 
that  no  Assembly  district  (in  that  city)  should  be 
divided  in  the  formation  of  a  Senate  district. — 
Agreed  to. 

The  whole  section  was  then  agreed  to. 

The  5th  section  relating  to  the  formation  of 
Assembly  districts,  having  been  read, 

Mr.  PERKINS  moved  to  reconsider  the  same, 
for  the  purpose  of  striking  out  all  that  provides 
for  single  districts,  except  in  the  city  of  N»ew 
York,  which  he  proposed  to  divide  into  four  dis- 
tricts. 

It  being  found  by  reference  to  the  Journal  that 
no  motion  to  reconsider  this  section  had  been 
heretofore  made,  the  motion  of  Mr.  P.  was  ruled 
out  of  order. 

The  6th  section,  relates  to  the  pay  of  members 
of  Assembly. 

Mr.  MARVIN  moved  to  reconsider  for  the  pur- 
pose of  striking  out  all  that  limits  the  aggregate 
pay  for  a  session  to  $300. 

No  record  of  this  motion  being  found,  it  was 
ruled  out  of  order. 

The  Secretary  continued  to  read  the  sections, 
which  were  adopted  up  to  the  IGth,  which  is  as 
follows  : 

§  16.  No  bill  shall  be  passed  unless  by  the  assent  o!  » 
majoritj  of  all  the  members  elected  to  each  bianch  ol  the 
legislature,  and  the  question  on  the  h'nai  passage  sh.U  be 
taken  immediately  ui>on  us  last  reading,  and  the  yeas  and 
nty-g  entered  on  the  journal. 

Mr.  STETSON  opposed  this  as  going  much  too 
far. 

Mr.  S.  concluded  by  moving  to  strike  out  all 
after  the  word  "passed,"  in  the  first  line,  and  in- 
sert "unless  two-thirds  of  all  the  members  elect- 


1068 


ed  to  each  house  be  present  during  the  last  read- 
ing, and  the  question  upon  the  final  passage  shall 
be  taken  immediately  upon  its  last  reading,  and 
the  yeas  and  nays  entered  on  the  journal." 

Mr.  MARVIN  opposed  the  section  as  being  en- 
tirely unnecessary,  unsafe  and  unwise. 

Mr.  RICHMOND  sustained  the  original  section 
as  did  Mr.  RUSSELL. 

Mr.  MURPHY  further  opposed  it. 

Messrs.  HARRIS  and  MORRIS  further  support- 
ed it. 

The  debate  was  continued  by  Messrs.  JONES  in 
opposition,  and  Mr.  VAN  SCHOONHOVEN  in  fa- 
vor of  the  section,  when, 

Mr.  STRONG  moved  the  previous  question. 

There  was  a  second,  and  the  main  question  01- 
dered. 

The  question  was  then  taken  on  the  proposi- 
tion of  Mr.  STETSON,  and  it  was  rejected.  Ayes 
35,  Noes  62. 

The  question  was  then  taken  on  the  section 
and  it  was  adopted.  Ayes  78,  Nays  30. 

The  question  then  recurred  on  tne  15th  section 
as  follows  : — 

"The  enacting claase  of  all  bills  shall  be,  The  People 
of  the  state  ot  New  York  represented  in  Senate  and  As- 
sembly, do  enact  aa  follows  :  and  no  law  shall  be  enacted 
but  by  bill." 

Mr.  CROOKER  moved  to  strike  out  "  repre- 
sented in  Senate  and  Assembly." 

This  was  rejected. 

The  l"7th  section  was  then  read,  as  follows- : — 
"No  private  or  local  bill,  which  may  be  passed  by  the 
legislature,  shall  embrace  more  them  one  smbjeet.  and  that 
shall  be  expressed  in  the  title." 

Mr.  TAGGART  moved  to  strike  out  the  words 
"private  or  local."  Lost. 

Mr.  MARVIN  moved  to  strike  out  the  words 
"by  the  legislature,"  as  unnecessary.  Lost. 

Mr.  TALLMADGE  moved  to  insert  after  the 
word  "bill,"  the  words  "  and  no  act."  Lost. 

The  section  was  then  adopted. 

The  18th  section  was  then  read  as  follows  : — 

"  Provision  shall  be  made  by  law  for  bringing  suits  a- 
gainst  the  state,  in  the  courts  thereof,  and  for  regulating 
their  jurisdiction  and  proceedings  in  such  suits  " 

Mr.  HOFFMAN  hoped  the  section  would  be 
stricken  out.  It  might  be  sale  to  allow  the  State 
to  be  sued  on  written  contracts,  but  as  this  sec- 
tion stood,  it  would  open  the  door  to  innumera- 
ble suits  against  the  State  upon  every  variety  and 
description  of  claims.  (Instead  of  one  Attorney 
General  it  would  require  twenty.)  He  moved  to 
strike  it  out. 

Mr.  MARVIN  fully  concurred  in  the  views 
expressed  by  the  gentleman  from  Herkimer. 

iVJr.  STETSON  thought  this  would  be  a  safe- 
guard against  the  loose  legislation  which  hereto-^ 
fore  characterized  the  action  on  claims.  Howev- 
er, there  was  no  objection  on  his  part  to  its  being 
stricken  out,  it  being  one  of  much  doubt. 

The  previous  question  was  then  asked.  There 
was  a  second  and  the  main  question  ordered. 

The  section  was  rejected. 

IV) r.  TOWNSEND  moved  the  following  as  an 
additional  section,  being  the  unanimous  report  of 
the  committee  of  five  on  the  subject: — 

«}  — .  The  Legislature  shall,  at  its  next  session  after  the 
adoption  of  this  Constitution,  provide  by  law  for  equaliz- 
ing the  valuation  ol  property  lor  the  purpose  of  taxation, 
as  made  by  the  assessors  and  supervisors  in  the  respective 


counties  of  this  State,  so  that  each  county  shall  contribute 
its  proportionate  share  to  the  support  of  government. 

Mr,  T.  in  view  of  the  fact  that  this  measure  had 
received  the  unanimous  approval  of  a  committee 
selected  from  every  section  of  the  State,  would 
not  occupy  but  a  brief  period  in  his  remarks  up- 
on the  subject.  From  the  investigations  that  he 
had  made  into  the  nature  of  the  returns  to  the 
State,  exhibiting  the  amount  of  the  State  tax  in 
the  various  counties,  he  felt  authorized  to  assert., 
that  whilst  in  most  of  the  western  counties  real 
estate  was  computed  nearly  at  its  cash  valuation, 
and  the  counties  of  Kings  and  New- York  often  a- 
bove  its  cash  value  by  the  assessors,  intermediate 
counties,  and  others  in  the  northern  and  southern 
sections  of  our  State,  escaped  with  the  payment 
of  sums  less  than  one  quarter  of  what  should  be 
their  proportionate  contribution  to  the  State  tax. 
This  was  effected  by  an  open  and  understood 
fraud  (he  would  almost  say)  in  the  valuation  of 
both  real  and  personal  property — 

(Mr.  GRAHAM  here  made  some  observation 
not  understood.) 

Mr.  T.  continued  and  said  the  restlessness  of 
the  gentleman  might  be  explained  from  the  fact 
that  his  county  (Ulster)  happened  to  be  one  which 
on  the  face  of  the  returns,  appeared  as  obnoxious 
to  the  censure  that  he  had  just  uttered.  He  did 
not  know  but  if  the  system  of  assessing  personal 
property  was  continued,  that  in  the  salutary  ope- 
ration of  some  provision  of  the  character  now 
moved,  a  large  amount  of  personal  property  might 
find  its  way  to  the  tax  books  in  his  own  city.  He 
cared  not  how  this  might  be  so  long  as  a  fair  and 
equitable  estimate  was  secured  throughout  the 
State.  As  at  present  computed  we  had  about  one 
hundred  and  fifteen  millions  of  personal  property 
reported  in  the  whole  State,  including  all  our  in- 
corporated and  public  associated  capital — which 
two  items  alone  should  nearly  cover  that  sum. — 
At  an  early  period  of  the  session  he  had  noticed 
this  evasion  of  personal  and  unfair  valuation  of 
real  property.,  and  had  then  stated  his  concurrence 
in  the  views  of  a  distinguished  gentleman,  (S.  B. 
RUGGL.ES,)  who,  in  an  official  report,  had  several 
years  recommended  real  estate  alone  as  the  best 
basis  for  equal  and  effectual  taxation.  Those  who 
would  answer  that  thus  personal  property  would 
entirely  escape,  forget  that  personal  property  is 
represented  by  articles  either  living  or  inanimate, 
and  as  all  such  must  rest  or  abide  in  some  locali- 
ty of  land,  by  storage,  rents,  &c.,  they  would  be 
called  upon  to  bear  their  share  of  the  burthen  at 
first  for  convenience  enforced  upon  fast  property. 
We  have  provided  for  a  term  of  years  a  continu- 
ance of  a  small  State  tax.  Under  the  heavy  ex- 
penditures of  the  general  government,  the  reve- 
nues from  customs,  even  with  duties  upon  the 
present  free  articles,  will  render  a  large  national 
debt  or  direct  taxation  for  the  national  exchequer 
unavoidable.  Preferring  that  the  government 
should  pay  as  they  go,  and  believing  that  the  peo- 
ple would  require  this  mode  of  proceeding,  he 
had  felt  it  peculiarly  the  duty  of  this  Convention 
— seeing  that  legislative,  efforts  to  effect  this  ob- 
ject h?.ve  heretofore  been  defeated  by  the  repre- 
sentatives of  delinquent  localities,  to  provide 
means  for  an  equitable  imposition  of  the  national 
tax,  which  will  soon  by  its  large  addition  to  our 
present  half  mill  State  tux,  make  the  present  un- 


1069 


equal  mode  of  valuation  a  still  greater  enormil 
upon  his  own  county,  (New-York,)  which  ft 
some  years  had  borne  nearly  two-thirds  of  th 
State  tax.  Mr.  T.  would  leave  to  other  gentle 
men,  whose  counties  suffered  as  his  own,  the  far 
ther  advocacy  of  the  measure,  and  hoped  that  un 
der  the  favor  with  which  the  Convention  appa 
rently  received  the  suggestion,  it  would  be  speed 
ily  adopted.  He  would  only  state  in  additio 
that  numerous  memorials  had  been  presented  t 
us  on  the  subject— from  some  of  the  most  intell" 
gent  and  respectable  citizens  of  the  State. 

Mr.  GRAHAM  considered  this  to  be  mere  mat 
ter  of  legislation— and  therefore  moved  to  lay  th 
proposition  on  the  table. 

The  motion  was  rejected,  ayes  37,  nays  55. 

Mr.  R.  CAMPBELL,  jr.,  hoped  the  sectio 
would  be  adopted,  or  some  other,  by  which  th 
Legislature  should  be  directed  to  revise  our  ta: 
laws. 

Mr.  BASCOM  moved  to  strike  out  "  at  its  nex 
session  after  the  adoption  of  this  Constitution, 
and  to  strike  out  "proportionate"  and  inser 
"  equitable." 

Mr.  TOWNSEND  assented. 

Mr.  LOOM1S  moved  to  add  as  follows:— 
44  And  also  to  s««ure  the  equalization  of  taxation  accord 
ing  to  propei  ty,  without  regard  to  the  distinction  betweei 
real  and  personal  estate." 

Mr.  PERKINS  said  the  effect  would  be  to  com 
pel  the  assessment  of  personal  property  withou 
regard  to  its  indebtedness.  He  was  not  prepared 
to  assent  to 

Mr.  MURPHY  moved  to  add  "  and  such  prop- 
erty shall  le  taxed  at  the  place  of  domicil  of  the 
owner." 

Mr.  T9WNSEND  suggested  to  Mr.  L.  that  h 
should  withdraw  his  amendment,  and  offer  it  as  a 
distinct  section. 

Mr.  LOO  MIS  assented  and  withdrew  his  a- 
mendment,  (carrying  with  it  Mr.  Mr.  MURPHY'S.) 

Mr.  PERKINS  opposed  the  proposition  as 
vague  and  indefinite. 

Mr.  HARRIS  urged  the  importance  of  equali 
zing  taxation,  so  that  all  should  be  burdened  a- 
like.  This  all  conceded  did  not  exist  now.  He 
therefore  proposed  the  following  substitute  for  the 
proposition : 

^  — .  All  property  subject  to  taxation  shall  be  taxed  ac 
cording  to  its  actual  value,  to  be  ascertained  in  such  man- 
ner as  the  Legislature  shall  direct,  making  the  same  equal 
and  uniform  throughout  the  State.  No  one  species  of  pro- 
perty from  which  a  tax  may  be  collected,  shall  be  taxed 
higher  than  another  specie  *  of  property  of  equal  value. 

Mr.  WHITE  moved  to  lay  the  whole  subject 
on  the  table.  * 

Carried,  ayes  62,  nays  44. 

Mr.  R.  CAMPBELL,  Jr.  offered  the  following 
as  an  additional  section  : — 

§— .  The  Legislature  shall  provide  bylaw  for  there- 
organization  of  the  boards  of  supervisors  of  the  several 
counties  of  the  State,  so  as  to  create  a  more  equal  repre- 
sentation in  said  boards,  and  may  confer  upon  the  same 
•uch  further  powers  of  local  legislation  and  administra- 
tion, as  shall  from  time  to  time,  be  prescribed  by  law. 

Mr.  R.  CAMPBELL,  Jr.  said  he  wouldaskthe 
attention  of  the  Convention  for  a  few  moments, 
(a  request  he  had  seldom  made  during  the  sitting 
of  the  Convention,)  while  he  briefly  stated  some 
of  the  reasons  that  induced  him  to  offer  the  sec-1 
tion  under  consideration.  He  said  that  such  sec- , 


tion  was  the  unanimous  report  of  standing  com- 
mittee No.  15,  of  which  he  was  a  member,  and 
that  it  was  to  be  found  in  document  No.  12  of  the 
reports,  &c.  of  this  Convention.  Sir,  the  labors 
of  this  Convention,  from  its  commencement,  have 
have  been  to  perfect  a  Constitution  for  regulating 
the  powers  and  duties  of  the  agents  of  the  State 
government,  and  I  propose  now  to  invite  the  mem- 
bers of  this  Convention  to  approach  a  little  nearer 
to  the  great  principle  of  all  republican  govern- 
ments, viz.,  that  of  self-government — and  to  pro- 
vide for  the  organization  of  a  republican  govern- 
ment in  each  county,  founded  upon  a  principle  of 
equal  representation.  Sir,  I  am  one  of  those  who 
believe  that  the  true  moral  influence  of  our  gov- 
ernment can  only  be  preserved  by  a  proper  divi- 
sion of  the  subjects  of  legislation  and  administra- 
tion— between  the  State  and  the  local  authorities 
— by  conferring  upon  the  State  Legislature  and 
the  State  authorities,  those  subjects  of  legislation 
and  administration  which  are  strictly  theirs — up- 
on counties  those  matters  of  legislation  and  ad- 
ministration which  are  theirs — upon  towns  theirs 
— and  by  securing  to  individuals  the  right  to  at- 
tend to  their  business  without  restrictions  orlimi- 
:ations. 

Sir,  I  am  willing  to  admit    that  our   town  and 
county   governments  have   done   more  to   protect 
he  citizens  of  ihis  state — to  preserve  their  rights, 
and    promote  their  happiness,  than  any    other  of 
;he  aids  which  the   state  have   brought  to   its  re- 
ief — but   I  hold  that  our  county  governments  are 
established  upon  a  system  utterly  at  variance  with 
he  representative  principle  of  republican  govern- 
ments ;  and  subversive  of  the  rights  and   best  in- 
'erests  of  the  people.     Sir,  almost  every  county  in 
he  state  is  governed  by  a  minority  of  its  popula- 
ion  in    all  matters  which  affect  local   legislation 
and  taxation  ;  in  regard  to  nineteen-twentieths  of 
all  the    taxes  imposed  upon   the  citizens  of  (his 
tate.  Yes,  sir,  nearly  one-third  of  the  entire  po- 
lulation  of  this  state,  are    entirely  unrepresented 
n  all  matters  committed  to  the  board  of  supervi- 
ors  of  the  several  counties  of  the  state.     A  town 
hat  has  10,000  inhabitants,    and  its  citizens  mil. 
ions  of  property,  has  no  greater  representation  in 
hese  local  legislatures  than  a  town  of  200  inhabi- 
ants,  with  a  few  thousand  dollars  of  taxable  pro- 
erty.     I  regard  this    inequality  in  representation 
s  grossly  wrong  and  unjust,  and  as    an  evil    that 
ught  to  be  at  once  corrected.     But,  sir,  it  maybe 
aid  that  our  supervisors  now  represent  a  territory 
r  property    interest,  and   not  the   inhabitants  of 
le  towns — and  that  the  effect  ot  a  re-organization 
f  the  different  boards  of  supervisors  upon  the  re- 
resentative  principle,  would    give  the  towns  ha- 
ing  a  large  population  an  undue  representation  in 
hose  boards.     I  answer,  that  the  principle   of  re- 
resenting  towns  or   corporations,  instead  of   the 
opulation  in  them,  is  a  part  of  the  old  rotten  bo- 
-ugh   system  of  England — aristocratic  in  all    its 
atures  and  tendencies — at  war  with  governmental 
nicy  of  a  republican  government — and  that  nei- 
ier  the  agricultural  or  any   other  interest  can  be 
ijured    by  a    just   representative   government — 
'  by  equal  laws  and  equal   rights.     That  no  hon- 
t  man  who  properly  respects  the  rights  of  others, 
ibuld  be  disposed  to   withhold  from  any   citizen 
s  due   and   equal  representation    in  the    boards 
here  laws  are  to  be   made  and  taxes  imposed. — 


1070 


Sir,  the  people  of  this  state  may  consent  to  the 
acts  of  the  boards  of  supervisors  so  long  as  those 
acts  are  only  administrative;  but  if  powers  of  le- 
gislation are  conferred  up.on  those  boards,  the  ne- 
cessity of  their  re-organization  upon  a  principle 
of  more  equal  representation  is  absolute.  Without 
such  a  re-organization,  the  people  will  never  obey 
the  laws  enacted  in  siid  boards. 

Mr.  President,  this  town  or  borough  system  of 
representation  in  these  boards,  by  which  one-third 
of  the  people  of  this  state  are  disfranchised  as  to 
their  just  influence  in  assessing  the  burthens  of 
government,  cannot,  and  will  not  long  be  endured. 
This  imposing  of  taxes  without  the  consent  of  the 
governed,  is  a  teature  of  governmental  policy  that 
was  resisted  by  our  forefathers,  and  should  be  re- 
pudiated by  all  men  who  know  their  rights. 

Sir,  the  section  under  consideration  proposes 
that  the  state  legislature  may  re-organize  the 
b  >ards  of  supervisors  in  the  several  counlies  of  the 
state,  upon  a  principle  of  more  equal  representa- 
tion— that  clause  is  not  mandatory  and  can  be 
complied  with — either  by  decreasing  the  number 
of  supervisors  in  each  county,  so  that  each  super- 
visor  or  member  of  the  local  legislature  shall  re- 
present several  towns,  and  be  elected  as  members 
of  assembly,  are  to  be  elected  under  the  constitu- 
tion we  are  about  to  submit  to  the  people  of  this 
stale  for  their  approval  or  rejection;  or  by  increas- 
ing the  representation  of  the  towns  having  a  large 
population  by  uniting  some  of  the  assessors  of 
such  towns  with  their  supervisors  as  representa- 
tives in  the  local  legislature — providing  if  deemed 
necessary,  that  no  town  shall  have  over  three  re- 
presentatives or  votes  in  said  boards — indeed  any 
provision  tor  a  more  equal  representation  will 
be  in  compliance  with  the  terms  of  this  section. 

Sir,  the  section  also  proposes  that  the  legisla- 
ture may  confer  upon  such  boards  of  supervisors, 
such  further  powers  of  local  legislation  and  ad- 
ministration as  shall  from  time  to  time  be  prescrib- 
ed by  law.  Surely  there  is  nothing  wrong  in  this 
portion  ot  the  section.  At  all  events,  nothing 
more  than  a  compliance  with  the  instructions  gi- 
ven the  members  of  this  Convention  in  the  resolu- 
tions of  the  different  county  conventions,  at  which 
they  were  severally  nominated. 

Mr.  President,  I  believe  that  the  people  of  this 
state  have  demanded  at  our  hands  the  refonn  in- 
dicated by  the  section  under  consideration — that 
they  will  not  longer  submit  to  the  wrong  and  op- 
pression of  the  rotten  borough  system  of  repre- 
sentation— a  system  that  ought  to  be  discarded  by 
every  true  democrat,  "who  asks  for  nothing  hut 
what  is  right,  and  intends  to  submit  to  nothing 
that  is  wrong." 

Sir,  the  first  section  of  the  article  to  which  this 
is  offered  as  an  amendment,  provides  that  the  en- 
tire legislative  power  ot  the  state  shall  be  vested 
in  the~Senate  and  Assembly.  It  is  therefore  my 
opinion  that  powers  of  local  legislation  cannot  be 
conferred  upon  the  several  boards  of  supervisors, 
without  a  constitutional  section  permitting  the 
state  legislature  to  delegate  such  power. 

Mr.  President,  the  people  of  this  state  have  call- 
ed for  a  division  of  the  legislative  and  administra- 
tive duties  of  government  between  the  state  and 
local  authorities.  And  the  question  now  to  be 
determined,  is  whether  the  people  shall  have  a 
local  government  founded  upon  a  principle  of  re 


presentation  according  to  population — or  a  local 
government  formed  upon  the  rotten  borough  sys- 
tem, ot  representing  by  towns  or  corporations. — 
Sir,  the  people  are  renresented  in  these  halls, 
where  millions  of  taxes,  direct  and  indirect  are 
imposed  upon  the  true  democratic  system  of  re- 
presentation. No  other  representation  would  be 
tolerated  for  a  moment  by  the  people.  Shall  we 
then  form  our  local  governments  by  recognizing 
the  federal  doctrine  of  property  representation,  or 
shall  we  adopt  the  true  democratic  principle, 
that  of  representation  according  to  population  ? — 
Let  the  members  answer  this  question  by  their 
votes.  Having  been  instructed  by  the  committee 
that  reported  this  section,  to  offer  it  for  the  con- 
sideration of  the  Convention, I  avail  myself  of  this, 
the  first  opportunity  I  have  had  for  that  purpose, 
since  the  section  was  reported. 

Mr.  CROOKER  moved  to  strike  out  "shall," 
and  insert  "may."'  Agreed  to. 

Mr.  RICHMOND  moved  to  lay  the  subject  on 
the  table. 

Mr.  FORSYTH  asked  for  the  previous  question. 
There  was  a  second  arid  main  question  ordered. 

Mr.  FORSYTH  then  withdrew  his  amendment. 

The  question  was  then  taken  on  Mr.  CAMP- 
BELL'S proposition,  and  it  was  adopted — ayes  67, 
noes  37. 

Mr.  HOFFMAN  moved  that  the  whole  of  arti- 
cle three  now  be  adopted  and  be  ordered  engross- 
ed. 

Mr.  ANGEL  moved  the  previous  question,  and 
it  was  seconded. 

The  article  was  adopted — ayes  68,  noes  31. 

Several  motions  were  laid  on  the  table  to  re- 
consider. 

The  Convention  then  adjourned. 


AFTERNOON  SESSION. 

The  Convention  took  up,  on  motion  of  Mr. 
HOFFMAN, 

ARTICLE  IV.— ON  THE  EXECUTIVE. 
Passed  through  the  same  without  amendment, 
and  it  was  adopted  by  a  unanimous  vote,   (with 
the  exception  of  Mr.  TAGGART,  who  voted  in  the 
negative,)  and  ordered  to  be  engrossed. 

ARTICLE  V— ADMINISTRATIVE  OFFICERS. 

The  fifth  article,  on  the  election  and  appoint- 
ment of  state  officers,  was  next  taken  up,  read 
through  to  the  last  section,  (that  relating  to  the 
abolition  of  inspection  laws,)  when 

Mr.  SHEPARD  moved  a  reconsideration  for 
the  purpose  of  offering  the  following  substitute  : 

§  S.  No  law  shall  be  passed  compelling  the  inspection, 
weighing  or  measuring  of  any  article  of  merchandise,  pro- 
duce or  manufacture,  (except  salt  manufactured  withiu 
this  state,)  or  prohibiting  any  person  from  acting  as  in. 
spector  or  measurer  of  any  such  article. 

There  appearing  no  motion  for  a  reconsidera- 
tion upon  the  journals,  at  the  time  of  the  a- 
doption  of  the  section,  the  motion  was  ruled  out 
of  order. 

Mr.  MORRIS  asked  unanimous  consent  to  a- 
mend  by  adding  "the  public  health  or"  after 
"protecting." 

Mr.  SHEPARD  objected. 

Mr.  MORRIS  moved  to  recommit  the  section 
with  instructions  to  report  it  amended  as  he  had 
indicated. 


1071 


Mr.  O'CONOR  moved  to  amend  the  instruc- 
tions by  directing  the  substitution  of  a  section 
heretofore  proposed  by  him.  Lost. 

Mr.  SHEPARD  moved  to  substitute  his  section 
in  the  instructions.  Lost.  Mr.  S.  then  with- 
drew his  objections,  his  purpose  having  been 
gained  by  the  last  vote.  Other  objections  being 
made, 

Mr.  MORRIS'  motion  was  put  and  carried,  and 
Mr.  M.  being  appointed  the  committee,  reported 
as  instructed.  His  report  was  agreed  to,  and  the 
section  adopted  as  amended. 

The  entire  article  was  then  adopted  and  order- 
ed to  be  engrossed — 

AVKS— 89. 

NOES — Messrs.  Cornell,  Hoffman,  Hunt,  Jones,  Kenne- 
dy, Loomis,  Mann,  McNeil,  Murphy,  O'Conor,  Shepard, 
Stetson,  Stow,  Tallmadge,  Waterbury— 15. 

ARTICLE  VI.— ON  THE  JUDICIARY. 

This  article  was  read  through  to  the  8th  sec- 
tion, when 

Mr.  TAGGART  moved  to  recommit  with  in- 
structions to  strike  out  the  clause  relating  tb  the 
qualifications  for  admission  as  attorneys. 

Mr.  SWACKHAMER  moved  to  amend  by  in- 
structing the  committee  to  insert  the  following  in 
place  of  the  present  clause  : — 

"  Every  citizen  of  the  state,  of  good  moral  character, 
(except  judicial  officer.,  excluded  by  this  Constitution) 
shall  be  admitted  to  practice  as  counsellor,  solicitor  or  at. 
torney  in  any  court  of  law  in  this  state." 

Mr  BASCOM  thoughtthat  by  striking  out  "and 
who  possesses  the  requisite  qualificationsoflearn- 
ing  and  abiliiy,"  and  the  words  "to  admission," 
all  objections  against  this  article  would  be  obvia- 
ted. He  -vouki  vote  for  such  a  motion  if  made- 

Mr.  KENNEDY  moved  to  lay  on  the  table  the 
motion  to  recommit.  Agieed  to,  56  to  48. 

Mr.  RUGGLES  asked  unanimous  consent  to 
amend  the  llth  section  by  excepting  from  re- 
moval by  the  Legislature,  together  with  justices 
of  rhe  peace,  justices  of  inferior  courts  not  of  re- 
cord.  Agreed  to. 

Mr.  SANFORD  moved  to  recommit  the  14th 
section  with  instructions  to  amend  the  section  so 
that  the  third  sentence  of  the  first  clause  should 
read  as  follows: — 

"  The  county  court  shall  have  such  jurisdiction  in  cases 
ari=ing  in  justices  courts,  and  in  such  special  cases  as  the 
Legislature  may  prescribe,  and  shall  have  such  original 
civil  jurisdiction  as  may  be  prescribed  by  law." 

Mr.  S  advocated  his  motion. 

Mr.  PATTERSON  moved  to  lay  the  motion  on 
the  table.  This  question  had  been  fully  discuss- 
ed and  decided  by  several  strong  votes.  Agreed 
to— 60  to  42. 

Mr.  RICHMOND  moved  to  recommit  the  same 
section,  with  instructions  to  amend  the  third 
clause,  so  that  it  would  read:  "The  justices  to 
sit  in  courts  of  session  shall  be  selected  by  the 
Board  of  Supervisors."  Lost. 

Mr.  HOFFMAN  asked  consent  to  amend  so 
that  the  two  justices  to  sit  with  the  county  judge 
should  be  designated  by  law.  Agreed  to. 

Mr.  LOOMIS  moved  to  amend  by  inserting  "on 
questions  of  law,"  after  "  appeals."  Objected  to. 

Mr.  MARVIN  moved  to  recommit,  with  in- 
structions tostike  out  of  the  5th  clause  the  follow- 
ing words :  "  Appeals  shall  lie  from  the  county 
court  and  court  of  sessions  to  the  supreme  court," 
(the  same  sentence  alluded  to  above.)  Carried 


under  the  previous  question,  and  the  amendment 
was  made  in  pursuance  of  instructions. 

Mr.  STOW  moved  to  amend  so  that  Buffalo 
should  be  excepted  from  the  provision  of  the  last 
clause,  prescribing  an  uniform  organization  for 
inferior  local  courts.  Agreed  to. 

Mr.  LOOMIS  moved  to  restore  the  15th  sec- 
tion to  its  original  form,  by  striking  out  the  alter- 
ations made  by  the  committee  of  revision. 

Mr.  RUSSELL  explained  the  object  of  the  re- 
vising committee  in  making  the  alterations. 

Mr.  RUGGLES  asked  consent  to  add  to  the 
17th  section  the  following: — 

"Justices  of  the  peace  and  judges  or  justices  of  inferior 
courts,  not  of  record,  and  their  clerto,  may  be  removed, 
(after  due  notice  ana  an  opportunity  of  being  heard  in  their 
defence.)  by  such  county,  city  or  State  courts  as  may  be 
prescribed  by  law,ior  causes  to  be  assigned  in  the  order  of 
removal." 

No  objection  being  made,  this  amendment  wag 
agreed  to. 

Mr.  LOOMIS  offered  the  following  farther  a- 
mendment,  which  was  adopted  : — 

"  In  case  of  an  election  to  fill  a  vacancy  occurrin?  before 
the  expiration  of  a  full  term,  they  shall  hold  for  the  residue 
of  the  unexpired  term." 

Mr.  KIRKLAND  moved  to  add  the  word  "coun- 
ties" in  the  18th  section,  as  to  the  election  of  lo- 
cal judicial  officers.  Objected  to. 

The  22d  section  provides  for  the  speedy  publi- 
cation of  statute  laws  and  judicial  decisions,  and 
declares  that  such  publication  shall  be  free  to  any 
person. 

This  was  debated  by  Messrs.  LOOMIS,  NICOLL, 
RUSSELL  and  STOW,  and  adopted. 

Mr.  SWACKHAMER  asked  consent  to  offer 
his  section,  abolishing  the  fees  of  attorneys  and 
counsellors. 

Mr.  NICOLL  objected. 

Mr.  HARRIS  moved  to  recommit,  with  instruc- 
tions to  add  the  following  section  : — 

§  — .  In  civil  actions  for  libel  or  slander  the  defendant 
shall  be  allowed  to  give  in  evidence,  upon  reasonable  no- 
tice, any  facts  tending  to  show  that  the  alleged  slander  or 
libel  is  true,  or  that  he  uttered  or  published  the  &ame  be- 
lieving it  to  be  true  ;  %nd  the  jury  shall  have  the  right  of 
deciding  upon  the  effect  to  be  given  to  such  evidence,  ei- 
ther in  justification  or  in  mitigation  of  damages. 

The  CHAIR  ruled  this  out  of  order. 

Mr.  LOO.VJIS  moved  to  reconsider  the  18th  sec. 
tion,  with  instructions  to  strike  out  the  words 
"and  villages."  Out  of  order. 

The  whole  article  was  then  adopted  by  the  fol- 
lowing vote- 

AYES— Messrs.  Allen,  Angel,  V.  F.  Backus,  Baker 
Bascom,  Bruce,  Brundage,  Cambreleng,  R.  Campbell,  jr.' 
Clyde,  Conely.Cook,  Dani,  Danforth,  Dodd,  Dorlon  Du-' 
bois,  Flanders,  Graham,  Harris,  Harrison,  Hart  Hoffman 
Hotchkiss.  A.  Huritington,  Hyde,  Kernan,  Kingsley' 
Loomis,  Morris,  Iviunio,  Nellis,  Paterson,  Powers,  Presi- 
dent, Rhoades,  Ruggles,  Russell,  Shaw,  Swack'hamer 
Taft,  J.  J.  Taylor,  W.  Taylor,  Townscnd,  Tuthill  Ward' 
Warren.  Witbeck,  Wood,  A.  Wright,  TV.  B.  Wrieht  Yaw-' 
ger,  Young— 58. 

NOES— Messrs.  Archer,  Ayrault,  H.  Backus,  Bergen 
Bow.lish,  Brayton,  Bull,  Candee,  Chamberla  n,  Cornell 
<  Uddeback,  Forsyth.  Greene,  Hunt,  E.  Hun-in^ton' 
Hutchmson,  Jones.  Kennedy,  Kirklaiul,  .Mann,  McNeil! 
\1aivin,  Murphy,  Nicholas,  NkoJl,  O'Conor,  PaiMi,  Pen- 
niman,  Perkins,  Richmond,  Riker,  St.  John,  Salis'uuy 
Shaver,  Shenard,  Smith,  V7.  H.  Spencer,  Stetson  Stow' 
Taggart,  Tallmadge,  lilden,  Waterbury,  White,  Willard 
Worden-46. 

Mr.  FORSYTH  moved  to  adjourn. 
Lost-,  40  to  49. 


1072 


ON  THE  FINANCES. 

One  or  two  verbal  amendments  were  made  t 
the  first  two  sections,  on  motion  of  Mr.  HOFF 
MAN. 

Mr.  W.  TAYLOR  moved  to  amend  the  third 
section,  by  adding  after  words  ''Black  River  ca 
nals,'"  the  following;,  "and  for  the  Oneida  River 
improvement." 

This  was  rejected  after  a  short  debate. 

Mr.  STOW  inquired  of  Mr.  HOFFMAN,  if  he  so 
construed  this  section  as  that  any  surplus  in  the 
treasury  on  the  1st  of  October,  1846,  would  be 
available  for  the  use  of  the  canals? 

Mr.  HOFFMAN  had  not  a  doubt  of  this.     The 


legislature  would    have  the  entire  control  of   any 
surpluss  there  might  be  on  that  day. 

The  third  section  was  then  adopted. 

Mr.  HOTCHKISS  moved  to  adjourn.     Lost. 

The  article  was  then  gone  through  with,  with 
only  some  slight  verbal  amendments. 

Some  conversation  took  place  between  Messrs. 
WORDEN,  HOFFMAN  and  MARVIN  upon  the 
last  section,  which  requires  a  quorum  of  three-fiflhs 
to  be  present  on  the  passage  of  any  bill  appropria- 
ting public  money,  &c.  No  motion  was  made  to 
amend. 

Mr.  WHITE  moved  that  the  article  be  agreed 
to,  and  ordered  to  be  engrossed. 

Mr.  MARVIN.  This  article  had  originally  con- 
sisted or  two  parts.  He  would  have  been  glad  to 
have  voted  for  the  first  part,  which  secured  the 
payment  of  the  State  debt,  and  the  completion  of 
the  unfinished  works,  but  the  second  contained 
principles  which  he  could  not  sanction,  He  gave 
this  as  his  reason  for  voting  in  the  negative. 

The  article  was  adopted  by  the  following  vote 
AYES— Messrs.  Allen.  Angel,  Ayrault,  F.  F.  Backus 
H.  Backus,  Baker,  Bergen,  Bruce,  Bascom,  Bowdish 
Brayton,  Bull,  Cambreleng,  R.  Campbell,  jr.,  Candee 
Chamberlain,  Conely,  Cook,  Cornell,  Cuddeback,  Dana 
Danforth,  Dodd,  Dubois,  Forsyth,  Graham,  Harrison,  Hott 
man,  Hotchkiss,  Hunt,  A.  Huntington,  Hyde,  Kemble 
Kennedy,  Kernan,  Kingsley,  Kirkland,  Loomis,  Mann 
McNeil,"  Max  well,  Munrp,  Morris,  Nellis.Nicoll,  O'Conor 
Parish,  Patterson,  Perkins,  President,  Richmond,  Riker 
Ruggles,  Russell.  Salisbury,  Santord,  Shaver,  Smith,  W 
H.  Spencer,  Stanton,  Stephens,  Stetson,  Strong,  Swack 
hamer,  Taft,  Taggart,  W.  Taylor^  Tilden,  Townsend 
Tuthill,  Warren,  White,  Willard,  Witbeck,  Worden,  A 
Wright,  W.  B.  Wright,— 77. 

NAYS — Messrs.  Flanders,  E.  Huntington,  Hutchinson 
Marvin,  St.  John,  Shepard,  Stow  Young,  Youngs — 9. 

The  Convention  then  adjourned. 

THURSDAY,  (WQth  day,)  Oct.  8. 

No  Clergyman  present. 

Messrs.  BRUNDAGE,  CLYDE,  GREENE,  GEB- 
HARD,  and  YAWGER  were  permitted  by  unani- 
mous consent  to  record  their  votes  in  the  affirma- 
tive on  the  Financial  article. 

Messrs.  CROOKER  and  E.  SPENCER  made  a  like 
request,  and  Mr.  SHEPARD  objected. 

Mr.  MANN,  from  the  committee  to  whom  was 
referred  the  several  returns  from  the  court  of 
Chancery  in  relation  to  the  funds  in  its  charge, 
reported  the  following  resolutions  : — 

Resolved,  That  this  Convention  recommend  to  the  next 
Legislature  to  provide  by  law  for  transferring,  securing 
and  depositing  all  funds  and  securities,  now  held,  or  which 
may  hereafter  be  held,  or  under  the  control  of  the  court 
of  chancery,  register,  assistant  register  and  clerk  thereof, 
in  the  state  or  county  treasuries,  or  make  such  other  pro- 
visions as  shall  be  deemed  expedient  to  effect  the  invest- 
ment, safety  and  security  of  said  funds  and  property,  and 
the  convenience  of  the  persons  interested  therein. 
Resolved,  That  the  several  returns  and  statements  now 


in  the  possession  of  the  Convention,  made  in  pursuance 
of  a  resolution  passed  Aug.  13th,  and  directed  to  the  chan- 
cellor, with  the  return  and  statements  yet  to  be  received 
from  the  first  district,  (New-York)  in  compliance  with  said 
resolution,  be  transmitted  to  the  Legislature,  with  a  re- 
quest to  that  body  to  have  them  printed  complete,  and  one 
or  more  copies  thereof  lorwarded  to  each  of  the  county 
clerks  in  this  State  for  public  use  and  inspection:  That  the 
Secretary  ol  this  Convention  transmit  a  copy  of  these  re- 
solutions, with  the  documents  and  statements  relating 
thereto,  to,  the  next  Legislature. 

Laid  on  the  table  and  ordered  printed. 
Mr.  STRONG  moved  that  the  engrossing  com- 
mittee be  instructed   to  engross  the  section  rela- 
ting to  the  equalization  of  the  Boards  of  Supervi- 
sors, adopted  yesterday,   in  the  following  words  : 
§  — .  The  Legislature  may  provide  by  law  for  conferring 
upon  the  several  boards  of  Supervisors  in  this  State  such 
powers  of  local  legislation  and  administration  as  shall  from 
time  to  time  be  prescribed  by  law. 

Mr.  STOW  said  as  a  representative  of  a  city, 
tie  regarded  it  as  highly  injudicious  that  the  re- 
aresentation  of  the  country  towns  should  be  taken 
irom  them. 

Mr.  STRONG  proceeded  to  say  that  this  would 
)e  found  to  be  the  general  feeling  against  thi» 
section. 

Mr.  BERGEN  withdrew  his  objection,  but 
Mr.  TOWNSEND  renewed  it. 

Mr.  STRONG  then  moved  to  lay  the  pending 
order  of  business  on  the  table.  Carried. 

Mr.  S.  then  moved  to  lay  all  other  orders  of 
msiness,  prior  to  resolutions,  on  the  table.  Car- 
ied. 

Mr.  S.  then  offered  his  resolution  (see  above) 
and  moved  the  previous  question. 

There  was  a  secund,  and  the  resolution  of  Mr. 
STRONG  was  adopted,  ayes  80,  noes  24. 

Mr.  MURPHY  moved  instructions  to  the  com- 
mittee on  revision  to  report  the  following  sec- 
tion : 

§ — .  It  shall  be  the  duty  of  the  Legislature  to  provide 
for  the  organization  of  cities  and  incorporated  villages, 
and  especially  to  restrict  their  power  of  taxation,  assess- 
ment, borrowing^  money,  contracting  debts,  and  loaning 
their  credit,  so  as  to  prevent  abuses  in  assessments,  and 
in  contracting  debts  by  such  municipal  corporations. 

Mr.  VAN  SCHOONHOVEN  moved  to  add  at 
the  end  of  the  section  the  following : 

"  But  shall  not  affect  any  existing  legislative  provisions 
respecting  liabilities  heretofore  incurred  by  any  city  or 
village  corporation." 

Mr.  V.  S.  advocated  his  amendment. 

Mr.  NICHOLAS  moved  the  previous  question 
on  the  amendment,  and  it  was  rejected,  37  to  39. 

Mr.  HARRIS  was  in  favor  of  the  principle  of 
the  section,  but  thought  it  would  be  improved 
by  striking  out  the  last  three  lines,  and  he  moved 
accordingly. 

Mr.  MURPHY  opposed  the  amendment. 

Mr.  NICOLL  moved  the  previous  question  on 
;he  whole  section. 

The  amendment  of  Mr.  HARRIS  was  rejected, 
and  the  section  offered  by  Mr.  MURPHY  adopted, 
ayes  94,  noes  Messrs.  DODD  and  TOWNSEND — 2. 

Mr.  DANFORTH  moved  the  members  be  al- 
owed  to  change  their  votes  upon  the  3d  article, 
;he  character  of  that  article   having  been  essen- 
tially changed  by  the  adoption   of  the  resolution 
offered  this  morning  by  Mr.  STRONG. 

Mr.  PATTERSON  moved  to   lay  the  pending 
order  of  business  on  the  table,  and  proceed  with 
;he  unfinished  business.    Agreed  to. 
Mr.  HARRIS,  from  the  coixynittee  en  revisions 


1073 


reported  back  the  section  presented  by  Mr.  MUR- 
PHY, and  it  was  agreed  to. 

ARTICLE  VIII-ON  CORPORATIONS. 

Mr.  RICHMOND  moved  a  reconsideration  of 
the  2d  section,  which  requires  a  majority  vote  to 
pass  general  corporation  laws,  &c. 

Mr.  PATTERSON  and  Mr.  RUSSELL  remark- 
ed that  this  section  was  now  unnecessary,  as  by  a 
previous  section,  a  majority  vote  had  been  re- 
quired for  all  laws. 

Mr.  VAN  SCHOONHOVEN  wanted  the  recon- 
sideration, that  the  vote  on  laws  of  this  kind 
might  be  increased  to  two-thirds. 

Mr.  ST.  JOHN  moved  the  previous  question, 
and  the  motion  to  reconsider  was  lost— 43  to  54. 

The  section  was  rejected — ayes  17,  noes  79. 

Mr.  TAGGART  moved  to  amend  the  5th  sec- 
tion, by  inserting  the  words  "  corporations  or," 
before  "  associations,"  so  that  it  would  read — 
"  but  corporations  or  associations  may  be  formed 
for  such  purposes  under  general  laws,"  Agreed 
to. 

The  7th  section  is  as  follows : 

^7.  The  legislature  shall  provide  by  law  for  the  regis- 
tering of  all  bills  or  notes,  issued  or  put  in  circulation  as 
money,  and  shall  require  ample  security  for  the  redemp- 
tion of  the  same  in  specie. 

Mr.  CAMBRELENG  moved  to  add  at  the  end 
of  the  section  as  follows : 

"  But  no  deposit  of  securities  shall  be  required  from 
banks  now  existing  and  incorporated  by  special  acts." 

Mr.  HOFFMAN  had  no  doubt  this  was  now 
the  construction  of  this  section,  and  he  objected 
to  the  amendment. 

Mr.  CAMBRELENG  appealed  to  him  to  with- 
draw the  objection,  but  Mr.  H.  refused. 

Mr.  HARRIS  hoped  the  amendment  would 
be  passed,  as  it  would  satisfy  all  parties,  and  al- 
lay the  feeling  which  now  prevailed  among  those 
interested  in  Safety  Fund  Banks.  He  moved  to 
recommit,  with  instructions  to  add  the  amend- 
ment moved  by  Mr.  CAMBREL-ENS. 

Mr.  TOWNSEND  remarked,  that  before  the 
convention  voted  affirmatively  upon  this  proposi- 
tion, he  felt  it  to  be  again  his  duty  to  call  their 
attention  to  the  fact,  that  in  reality  there  was  no 
security  to  the  public  now  in  the  so  called  Safety 
Fund  system ;  from  the  fact  that  its  ability  to 
meet  losses  that  might  henceforward  occur,  was 
annihilated  by  the  pledges  that  the  bank  failures 
for  the  last  six  years  had  entailed  upon  the  fund. 
It  was  idle  for  gentlemen  to  rise  here  and  talk  of 
th£  present  security  of  the  system,  when  in  doc- 
uments, from  the  most  responsible  sources,  we 
had  been  told  that  all  such  reliance  was  utterly 
baseless.  Mr.  T.  here  read  from  Convention 
Doc.  34,  page  3,  to  show  that  all  the  circulations 
for  the  remainder  of  the  period  of  the  charters  of 
these  banks,  were  effectually  "  used  up."  To 
prove  this,  the  bills  of  an  institution  that  had 
suspended  payment  the  past  summer,  had  until 
very  recently  been  floating  in  Wall  street  at  20  to 
30  per  cent  under  par— and  they  had  only  just 
been  taken  up  by  a  new  subscription  from  the 
stockholders,  under  the  operation  of  which  the 
bank  (the  Lewis  Co.)  had  been  again  put  on  its 
feet.  A  constitutional  provision,  authorising  the 
legislature  to  call  for  other  securities  than  is  now 
required  from  such  banks,  was  proper — if  we 
meant  to  say  to  the  people  that  the  state  would 

109 


look  closely  to  the  security  of  the  paper  money  of 
which  they  sanctioned  the  issue.  He  had  dis- 
charged his  duty  when  he  had  stated  these  sim- 
ple facts:  and  gentleman  would  not  now  vote  for 
the  motion  of  the  gentleman  from  Albany  unad- 
visedly. He  had  in  substance  given  this  admoni- 
tion when  the  question  was  up  a  week  ago.  It 
was  proper  to  say  before  he  took  his  seat,  thaj 
he  believed  that  under  the  beneficial  operation  of 
the  provisions  we  had  secured  by  the  article  on 
Banking,  the  great  majority  of  the  chartered 
banks  would  always  meet  their  engagements 
punctually ;  for  these  provisions  would  tend  to 
insure  a  continuance  of  their  present  solvent  con- 
dition ;  and  one  in  which  they  contrasted  most 
favorably  with  similar  institutions  in  many 
other  states ;  a  soundness,  however,  dependent 
upon  their  own  particular  resources,  and  wholly 
disconnected  with  the  "  Safety  Fund  System," 
under  which  name  they  were  known,  and  by 
which  the  honest  and  well  conducted  banks  had 
been  great  losers  themselves. 

Mr.  HOFFMAN  said  this  was  an  attempt  to 
disturb  the  compromise  which  had  been  agreed 
upon.  As  this  matter  now  stood,  the  Legislature 
would  or  would  not  require  additional  security 
from  the  Safety  Fund  Banks.  But  adopt  this 
amendment  and  you  make  these  banks  constitu- 
tional libertines,  free  to  act  as  they  pleased,  with 
no  power  of  control  by  the  legislature. 

Mr.  STOW  concurred  with  Mr.  HOFFMAN,  that 
this  would  be  a  dangerous  provision.  The  sec- 
tion was  abundantly  guarded  as  it  stood,  but  if 
this  clause  should  be  inserted,  it  might  give  a 
very  unsafe  construction  to  the  remainder  of  the 
section. 

SfcThe  motion  of  Mr.  HARRIS  was  negatived, 
ayes  22,  noes  71. 

Mr.  MUNRO  moved  to  strike  out  the  word 
"  shall"  where  it  occurs  the  second  time  and  in- 
sert **  may." 

Mr  HOFFMAN  objected. 

The  Sth  section  is  as  follows  :— 

^8  The  stockholders  in  every  corporation  and  joint 
stock  association  for  banking  purposes,  isfiuingbank  note* 
or  any  kind  of  paper  credits  to  circulate  as  money,  after 
the  first  day  of  January,  1850,  shall  be  individually  respon- 
sible to  the  amount  of  their  respective  share  or  shares  of 
stock  in  any  such  corporation  or  association,  for  all  its 
debts  and  liabilities  of  every  kind,  contracted  after  the 
said  first  day  of  January,  1850. 

Mr.  KIRKLAND  for  the  purpose  of  inserting 
the  words  "  hereafter  formed"  after  the  words 
"  banking  purposes,"  moved  a  reconsideration  of 
the  section. 

Mr.  BAKER  hoped  the  reconsideration  would 
prevail  for  another  reason.  There  had  been  a 
motion  made  to  amend  the  last  line,  by  striking 
out  the  words  *'  debts  and  liabilities  of  every  kind 
contracted"  and  insert  "  notes  or  bills  issued  for 
circulation."  Mr.  B.  showed  the  necessity  for 
this  restriction. 

Mi.  CAMBKELENG  contended  that  all  these 
apprehensions  were  ill  founded,  and  hoped  this 
section  would  not  be  disturbed. 

Mr.  MURPHY  should  vote  for  the  section,  al- 
though he  proiesied  against  the  inconsistencies  of 
this  article. 

Mr.  JONES  moved  the  previous  question,  and 
the  motion  to  reconsider  was  negatived ;  ayes  39, 
noes  56. 


1074 


The  last  section  was  then  read. 

On  the  question  of  agreeing  to  the  article  and 
ordering  it  engrossed, 

Mr.  MARVIN  railed  for  a  division,  so  that  the 
question  should  first  be  taken  upon  that  part  of  it 
which  consisted  of  the  report  on  corporations 
other  than  banking.  That  portion  he  was  in  favor 
of;  hut  the  remainder  he  was  opposed  to. 

Mr.  CAMBRELENG  did  nor  know  why  there 
should  be  a  distinction  made  between  different 
kinds  of  corporations. 

Mr.  MARVIN  again  opposed  the  adoption  of  the 
latter  part  of  the  article,  relating  to  banking  cor- 
porations. 

Mr.  BRUCE  asked  consent  to  offer  the  following 
additional  section,  but  it  was  objected  to: 

All  special  laws  granting  the  power  to  take  private  pro- 
perty lor  public  use  by  any  corporation  or  association 
(without  the  assent  of  the  owners  thereof)  or  granting  a 
franchise  or  right  of  way  on  the  public  highways  or 
streams  oi  this  state,  shall  be  passed  by  the  votes  of  two- 
thirds  of  all  the  members  elected  to  each  branch  of  the 
Legislature. 

Mr.  CAMBRELENG  moved  the  previous  ques. 
lion  on  the  whole  article,  and  it  was  seconded. 

Mr.  MARVIN  called  for  a  division,  but  it  was 
ruled  out  of  order. 

Mr.  M.  then  asked  unanimous  consent  for  such 
a  division, 

Mr.  CAMBRELENG  objected. 

Some  conversation  here  ensued  as  to  whether 
Mr.  BRUCE'S  section  was  in  order. 

The  CHAIR  finally  put  the  question  to  the  Con. 
vention,  whether  it  should  be  considered,  and  the 
House  refused,  ayes  43,  noes  51. 

The  whole  ariicle  was  then  adopted,  ayes  65, 
noes  33. 

ARTICLE  IX.— ON  EDUCATION. 

The  only  section  reported  on  this  subject  by 
the  committee  on  revision,  is  as  follows: 

§  1.  The  proceeds  of  all  lands  belonging  to  this  State.ex- 
cept  such  parts  thereof  as  maybe  reserved  or  appropria- 
ted to  public  use,  or  ceded  to  the  United  States,  and  such 
as  are  contiguous  to  the  salt  springs,  which  shall  hereaf- 
ter be  sold  or  disposed  of,  together  with  the  fund  denom- 
inated the  Common  School  Fund,  shall  be  and  remain  a 
perpetual  fund;  the  interest  of  which  shall  be  inviolably 
appropriated  and  applied  to  the  support  of  common  schools 
throughout  this  State. 

Mr.  NICOLL  moved  to  recommit  with  instruc- 
tions to  substitute  tor  this,  the  report  of  commit- 
tee No.  12.  Mr.  N.  explained  and  advocated  these 
sections. 

Mr.  TALLMADGE  agreed  heartily  with  his 
friend  in  one-halt  ot  his  speech,  and  differed  in 
tr>to  with  the  rest.  In  all  that  he  said  about  ed- 
ucation, he  fully  concurred,  but  in  thfse  two-pen- 
ny provisions  about  the  Appropriations  of  these 
funds,  he  hoped  we  should  have  nothing  to  do 
with  therm  He  would  leave  the  Legislature  free 
to  act  on  the  subject  of  schools,  and  there  was  no 
necessity  for  a  single  additional  provision  in  this 
constitution 

Mr.  PATTERSON  said  if  the  Convention  went 
beyond  the  provisions  ot  the  section  reported  by 
the  committee  ot  tevision,  and  made  provision  for 
the  permanent  application  of  I  he  U.  S.  Deposite 
Fund — which  he  was  glad  to  see  the  gentleman 
from  New  York  (Mr.  NICOLL)  recognize  as  the 
property  of  the  State— he  (Mr.  P.)  thought  some 
provision  should  be  made  for  it  in  the  Constitution. 
While  he  could  agree  to  make  all  necessary  pro- 


vision  for  our  present  good  system  of  .common 
schools,  he  should  be  opposed  to  so  doing  at  the 
expense  of  the  academies. 

Mr.  TUTHILL  moved  to  substitute  for  the  en- 
tire report  his  minority  article  on  the  same  sub- 
ject. 

Mr.  WILLARD  moved  to  amend  this  substi- 
tute by  striking  out  and  inserting  the  first  section 
of  his  own  report : 

^  1.  The  proceeds  of  all  lands  belonging  to  this  State  ex- 
cept such  parts  thereof  as  may  be  reserved  or  appropria- 
ted to  public  use  or  ceded  to  the  United  States,  which 
shall  hereafter  be  sold  or  disposed  of,  together  with  the 
fund  denominated  the  Common  School  Fund,  and  all  mo- 
neys heretofore  appropriated  by  law  to  the  use  of  said 
fund,  and  which  may  be  added  thereto,  shall  be  and  re- 
main a  perpetual  fund,  the  interest  of  which  shall  be  invi- 
olably appropriated  and  applied  to  the  support  of  common 
schools  throughout  this  State. 

Mr.  PERKINS  opposed  any  action  that  would 
injure  or  break  down  academies.  He  believed 
the  present  appropriation  from  the  State  Treasu- 
ry was  abundant  to  secure  the  education  of  every 
child  in  the  state. 

Mr.  RICHMOND  desired  to  call  especial  at- 
tention to  the  last  clause  of  the  article,  which  pro- 
vided that  the  amount  ofexpen.se  remaining  af- 
ter the  application  of  the  public  fund,  shall  be 
defrayed  by  taxation  upon  the  town.  He  believ- 
ed that  under  such  a  provision,  the  expenses 
would  be  greatly  enhanced.  Competition  be- 
tween different  districts  to  obtain  the  best  teach- 
ers would  lead  to  the  payment  of  large  salaries, 
and  while  one  district  would  pay  but  $20  per 
month,  another  would  give  $60.  The  people 
would  never  agree  to  such  an  inequality,  and  the 
whole  system  would  fail  under  it.  Make  the  dis- 
tricts themselves  responsible  for  the  expense, 
and  then  the  people  would  be  likely  to  have  some 
interest  in  the  condition  of  their  school,  which 
was  the  life  and  support  of  them  in  all  cases. 

In  many  instances,  he  believed  that  the  teach- 
ers in  the  common  schools,  and  the  best  teachers 
too,  carne  from  the  district  schools  themselves  ; 
but  he  would  not  raise  the  question  between  a- 
cademies  and  common  schools.  He  was  willing 
to  adopt  any  measure  which  was  not  really  wrong 
to  give  a  common  school  education  to  every  child 
in  the  state. 

Mr.  NICOLL  said  he  proposed  to  strike  out 
the  first  clause  of  the  6th  section,  and  leave  to 
the  legislature  to  determine  in  which  way  the  ex- 
penses of  free  education  should  be  defrayed. — 
He  wished  merely  to  obtain  an  expression  by  the 
Convention  upon  this  great  subject. 

Mr.  A.  W.  YOUNG  followed  in  general  re- 
marks upon  the  whole  subject. 

Mr.  HOFFMAN  did  not  rise  to  say  any  thing 
upen  the  subject  of  education,  or  the  best  system 
of  education.  Any  attempt  to  discuss  that  sub- 
ject he  aprehended  would  bring  the  Convention 
to  its  certain  death  ;  for  although  the  Convention 
might  not  adjourn,  the  members  would.  All 
that  we  could  hope  to  do,  might  be  done  in  a 
short  section,  securing  the  principal  of  the  school 
fund,  the  literature  fund,  and  the  U.  S.  deposite 
fund,  and  render  them  inviolate.  He  hoped  leave 
might  be  granted  him  to  offer  an  amendment, 
which  would  cover  all  the  Convention  could  hope 
to  do  upon  this  matter.  His  proposition  was  as 
follows : — 


1075 


§  1.  The  capital  of  the  common  school  fund,  the  capital 
of  the  literature  fund,  and  the  capital  of  the  U.  S.  deposits 
ftfnd,  shall  be -respectively  preserved  inviolate.  The  rev- 
enue of  the  said  common  school  fund  shall  be  applied  to 
the  support  of  commun  schools;  the  revenues  of  the  saic 
literature  fund  shall  be  applied  to  the  support  of  academies 
and  the  sum  of  $25,000  of  the  revenues  of  the  U.  S.  depos 
ite  fund  shall  each  year  be  appropriated  to  and  made  a  pan 
of  the  capital  of  the  said  common  school  fund. 

Mr.  PATTERSON  thought  this  the  best  pro- 
position which  had  been  offered  on  the  subject. 
He  commented  upon  its  various  provisions  and 
though  the  only  question  in  it  which  should  claim 
the  attention  of  the  Convention  was,  whether  the 
sum  named  by  him  ($25,000)  was  too  large  or  too 
small.  Was  it  not  a  little  too  large  to  preserve 
inviolate  the  present  appropriations  ?  That  was 
the  only  question. 

Mr.  HOFFMAN  (his  motion  being  objected  to) 
moved  to  lay  the  motion  to  recommit  on  the  table. 

Mr.  MURPHY  inquired  if  this  motion  to  lay 
on  the  table  would  carry  the  section  in  relation 
to  free  schools? 

The  CHAIR  replied  in  the  affirmative. 

Mr.  TOWNSEND  inquired  if  Mr.  HOFFMAN'S 
secti  on  would  then  be  susceptible  of  amendment? 

The  CHAIR  replied  in  the  affirmative. 

The  motion  to  lay  on  the  table  prevailed,  ayes 
78,  noes  22. 

Mr.  HOFFMAN  then  offered  his  substitute. 
(See  above.) 

Mr.  O'CONOR  moved  to  amend  by  striking  out 
«'  $25,000"  and  insert  "$20,000." 

Mr.  KIRKLAND  hoped  this  would  be  acceded 
to,  as  this  YUM  just  about  the  amount  of  surplus  of 
that  fund.  With  that  modification,  he  hoped  the 
section  offered  by  Mr.  HOFFMAN  would  be  adop- 
ted. 

Mr.  RUSSELL  moved  the  previous  question, 
and  it  was  seconded. 

The  amendment  of  Mr.  O'CONOR  was  negativ- 
ed, ayes  35,  noes  66. 

The  section  itself  was  then  adopted,  ayes  104, 
noes  3. 

Mr.  NICOLL  offered  as  an  additional  section  the 
proposition  to  submit  to  the  people  separately 
rhe  proposition  to  establish  Free  Schools,  which 
is  as  follows  : — 

^  6.  The  Legislature  shall  provide  for  the  free  education 
and  instruction  of  every  child  of  the  State,  in  the  common 
schools  now  established,  or  which  shall  hereafter  be  es- 
tablished therein. 

Mr.  NICOLL  moved  the  previous  question,  and 
it  was  seconded. 

The  section  was  adopted  by  the  following  vote: 
ayes  57,  nays  53. 

Mr  DANFORTH  laid  on  the  table  a  motion  to 
reconsider. 

The  section  was  then  referred  to  the  committee 
for  the  purpose  of  preparing  the  form  of  the  bal- 
lot. 

Mr.  RUGGLES  moved  the  following  additional 
section: 

§  — .  The  Legislature  shall  at  the  same  time  provide  for 
raising  the  necessary  taxes  to  carry  into  effect  the  provi- 
sions contained  in  the  preceding  section. 

Mr.  RICHMOND  moved  1o  amend  by  inserting 
"  in  each  school  district,"  after  the  word  «« taxes." 

Mr  WARD  advocated  the  amendment  of  Mr. 
RUGGLES,  and  was  followed  on  the  same  side  by, 
Air.  RUSSELL. 


Mr.  JONES  moved  the  previous  question  and  it 
was  seconded. 
The  amendment  of  Mr.  RICHMOND  was  agreed 

to. 

The  section  was  also  adopted,  ayes  82,  noes  26. 

Mr.  RUGGLES  moved  that  this  be  submitted 
separately  in  connection  with  the  preceding. — 
Agreed  to. 

Mr.  LOOMIS  moved  to  adjourn.    Lost. 

Mr  NICHOLAS  moved  that  the  9th  article  be 
agreed  to  and  ordered  engrossed. 

Mr.  CROOKER  moved  to  lay  that  question  on 
the  table  until  to-morrow  morning.  Lost. 

Mr.  CROOKER  moved  to  adjourn.    Agreed  to. 

AFTERNOON  SESSION. 

Mr.  LOOMIS  moved  to  recommit  the  9th  article 
(on  education)  with  instructions  to  strike  out  the 
two  last  sections,  which  were  ordered  to  be  sub- 
mitted separately. 

Mr.  TOWNSEND  regretted  that  his  friend  from 
Herkimer  (Mr.  LOOMIS)  should  feel  called  upon 
to  change  the  position  in  which  the  Convention 
had  this  morning  left  the  subject-  He  regretted 
it  the  more,  as  he  did  not  see  at  the  moment  any 
of  the  committee  charged  with  the  subject  of  edu- 
cation, in  their  seats  This  principle  of  entire 
freedom  from  charge  for  the  instruction  of  the 
children  who  attend  the  public  schools,  was  not 
by  any  means  a  new  idea  in  his  own  part  of  the 
state,  and  it  had  been  found  to  work  with  eminent 
success.  When,  in  1841,  important  modifications 
were  made  in  the  general  school  law  of  the  state, 
it  was  conceded  by  most  of  the  gentlemen  from 
the  country,  that  with  respect  to  t  he  entire  equality 
with  which  the  children  availed  themselves  of 
public  education,  in  the  city  ot  New  York — met 
upon  the  benches  of  their  schools — the  system  of 
the  city  was  far  preferable  to  the  mode  of'  rating, 
(as  it  was  called)  pursued  in  the  interior  of  the 
state;  thus  discriminating  between  the  parents  of 
scholars,  in  the  matter  of  contribution,  in  place 
of  sustaining  the  school  by  a  general  tax  upon  the 
property  of  the  district.  It  was  urged  with  force 
then  that  the  children  were  unavoidably  made 
sensible  of  the  fact  that  there  was  an  inequality 
in  their  position,  and  that  this  feeling  was  detri- 
mental to  that  buoyancy  and  happiness  in  their 
associations  with  their  schoolmates,  so  essential 
to  their  progress  in  the  acquisition  of  useful  in- 
struction. Every  incentive  should  exist  to  make 
he  school  attractive  to  the  scholar,  and  nothing 
n  the  system  should  compel  them,  to  feel  that 
others  were  there  by  any  better  right  than  them- 
selves 

There  was  no  time  then  to  show,  what  was  per- 
"ectly  apparent  to  all  but  the  contracted  and  pre- 
udiced,  that,  the  benefits  of  a  well  educated  com- 
munity reacted  directly  upon  the  property  of  the 
neighborhood,  by  rendeiing  that  more  secure  from 
depredations,  and  more  desirable  from  the  better 
society  and  morality  that  followed  as  the  attend- 
nts  upon  knowledge.  The  far-seeing  man  of 
wealth  paid  no  taxes  more  cheerfully  than  such 
as  went  to  promote  knowledge  in  his  neighbor- 
hood, and  with  it  a  capacity  for  self-support  and 
good  government. 

The  city  of  New  Yoik  now  paid  near  a  halt  a 
million  of  dollars,  annually,  for  the  free  instruc- 
ion  of  all  children  between  live  arid  sixteen  years 


1076 


of  age,  that  presented  themselves  to  the  city 
schools.  This  included  all  books,  stationery,  &c  ; 
so  that  the  whole  expense  of  education  was  borne 
by  the  city  treasury.  Notwithstanding  this  heavy 
charge  upon  property,  it  was  met  with  more 
cheerfulness  than  almost  any  other,  as  its  living 
benefits  were  constantly  before  us.  There  were 
many  who  deemed  the  matter  of  instruction  not  a 
government  concern — saying  that  when  you  have 
once  commenced,  you  might,  upon  the  same  prin- 
ciple, give  every  child  a  trade  or  profession,  as  a 
matter  of  public  care.  However  well  sustained 
these  views  may  be,  upon  full  investigation — and 
there  was  undoubtedly  great  difficulty  in  refuting 
them — when  government  undertakes  to  effect  an 
object,  it  should  be  thoroughly  and  completely 
done.  For  years,  the  question  of  public  instruc- 
tion has  occupied  the  solicitude  of  the  leading 
statesmen  of  this  state,  and  it  has  been  deemed 
proper  to  vest  large  funds  permanently  for  the 
benefit  of  education.  We  had  this  day  constitu 
tionalized  a  progressive  increase  to  our  already 
large  fund  for  that  purpose,  and  we  ought  to  feel 
disposed  to  give  the  system  the  greatest  efficiency, 
even  in  the  most  sequestered  and  remote  regions 
of  our  state.  From  the  habit  of  thus  viewing  and 
reflecting  upon  the  subject,  he  had  seen  with  sur- 
prise the  opposition  exhibited  this  morning  to  the 
section  establishing,  after  a  popular  vote,  the  prin- 
ciple of  universal  and  gratuitous  instruction  ;  and 
he  earnestly  hoped  that  the  Convention  were  not 
about  to  imitate  their  conduct  on  the  question  ot 
the  "rights  of  women,"  by  a  sudden  change  of 
opinion  from  a  previously,  and,  in  his  belief,  a 
properly  formed  one.  He  now  observed  the  mem- 
bers of  the  committee  charged  v\ith  this  matter, 
in  their  places,  and  he  would  leave  in  their  hands 
any  further  opposition  to  the  motion  now  pending 
of  reconsideration — upon  which,  however,  he 
asked  the  ayes  and  nays. 

Mr.  WHITE  demanded  the  previous  question. 
There  was  a  second,  and  the  main  question  ordered. 

The  question  was  then  taken  on  the  motion  of 
Mr.  LOOMIS,  and  it  was  carried,  ayes  61,  nays  27. 

The  committee  reported  back  the  article  thus 
amended,  and  the  report  was  agreed  to. 

The  ninth    article  was  then  agreed  to,  and  or- 
dered to  be  engrossed  without  a  division. 
ON  LOCAL  OFFICERS. 

The  tenth  article  was  then  taken  up. 

The  first  section  was  then  read 

Mr.  COOKER  moved  a  reconsideration  of  the 
vote  adopting  this  section,  in  order  to  strike  out 
*'  three"  years  as  the  term  of  office  of  the  Sheriff, 
and  insert "  two." 

The  motion  was  negatived.     Ayes  17,  nays  81. 

The  2d  section  was  then  read. 

Mr.  ANGEL  said  it  had  been  suggested  to  him 
that  the  first  line  of  the  2d  section  might  tend  to 
make  all  officers  which  were  now  elective,  per- 
manent, preventing  the  legislature  from  abolish- 
ing them.  It  was  "  All  officers  now  elective  by 
the  people,  shall  continue  to  be  elected."  He 
saw  no  necessity  for  it,  and  moved  to  strike  it  out. 
Agreed  to. 

Mr.  ANGEL  moved  an  additional  section  as 
follows  : 

The  political  year  and  legislative  term  shall  begin  on 
the  first  of  January,  and  the  legislature  shall  assemble  on 
the  first  Tuesday  ol  January,  unless  a  different  day  may 
be  provided  by  law. 


Some  verbal  amendments  were  permitted,  and 
the  article  was  adopted  and  ordered  to  be  engross- 
ed, ayes  101,  noes  1,  Mr.  E.  HUNTINGTON. 
THE  MILITIA. 

The  eleventh  article  was  then  considered. 

The  first  section  was  read,  as  follows : 

§  1.  The  militia  of  this  State  shall  at  all  times  hereafter 
be  armed  and  disciplined  and  in  readiness  for  service;  but 
all  such  inhabitants  of  this  State  of  any  religious  denomi- 
nation whatever,  as  from  scruples  of  conscience  may  be 
averse  to  bearing  arms,  shall  be  excused  therefrom  by  pay- 
ing to  the  State  an  equivalent  in  money,  and  the  Legisla- 
ture shall  provide  by  law  for  the  collection  of  such  equiv- 
alent to  be  estimated  according  to  the  expense  in  time  and 
money  of  an  ordinary  and  able  bodied  militia  man. 

Mr.  BASCOM  moved  to  strike  out  all  of  the 
section  after  the  word  "  therefrom"  and  insert  in 
lieu  the  words  "  upon  such  conditions  as  shall 
be  prescribed  by  law."  Mr.  B.  said  as  the  section 
now  stood  it  would  require  those  who  were  averse 
to  performing  military  duty  from  conscientious 
scruples  to  pay  the  old  commutation  instead  of 
the  new  as  established  last  winter. 

The  amendment  was  agreed  to. 

Mr.  RICHMOND  moved  to  strike  out  the 
words  "  and  disciplined." 

This  was  rejected. 

The  section  was  then  read  and  adopted. 

The  third  section  was  then  read. 

Mr.  FORSYTH  moved  to  refer  the  article  to  a 
committee  of  one  with  instructions  to  amend  by 
striking  out  the  words — '*  The  governor  shall  no- 
minate, and  with  the  consent  of  the  senate,  ap- 
point all  major  generals,  and  the  commissary 
Eneral,"  and  to  insert  "  all  major  generals  shall 
chosen  by  the  generals  and  field  officers  of 
eir  respective  brigades." 

Mr.  WARD  opposed  the  motion,  and  Mr.  FOR- 
SYTH sustained  it,  when 

Mr.  BERGEN  asked  for  the  previous  question, 
and  there  was  a  second,  and  the  main  question 
ordered. 

The  amendment  was  rejected. 

The  fourth,  fifth  and  sixth  sections  were  then 
read  and  agreed  to. 

The  article  was  then  adopted  and  ordered  to 
be  engrossed,  ayes  95,  nays  3. 

Mr.  PERKINS  suggested  that  there  were  seve- 
ral officers  to  be  elected  by  the  people,  as  to 
whom  no  provision  for  their  removal  was  to  be 
made.  To  obviate  this  difficulty,  he*would  pro- 
pose the  following  : 

§  1.  The  Governor,  Lieutenant-Governor  and  Chief  Jus- 
tice of  the  Court  of  Appeals,  shall  constitute  a  commission 
for  hearing  and  investigating  all  suspicious  and  charges  of 
embezzlement,  fraud,  oppression,  gross  neglect,  or  other 
malversation  in  office,  of  the  officers,  (except  judicial) 
whose  powers  and  duties  are  not  local,  and  who  shall  be 
elected  at  general  elections.  They  shall  have  power,  at 
all  times,  to  compel  the  attendance  of  witnesses  and  th« 
production  ot  papers.  They  may,  under  such  regulations 
as  shall  be  prescribed  by  law,  remove  such  officers,  and 
appoint  others  in  their  place,  but  before  any  such  officers 
shall  be  removed,  he  shall  be  furnished  with  a  copy  of  the 
charges  made  against  him,  and  be  heard,  in  his  defence. — 
Upon  the  removal  of  any  such  officer,  a  copy  of  the  char- 
ges  and  the  evidence  taken  in  support  of  the  same,  shall 
be  filed  in  the  office  of  the  Secretary  of  State.  Officers  ap- 
pointed by  any  body,  or  board  of  public  officers,  may  ex- 
cept as  otherwise  provided  in  this  Constitution  be  remov- 
ed under  such  regulations  as  may  be  prescribed  by  law. 

Mr.  MARVIN  moved   to  strike  out  the  words 

"  suspicions  and,"  in  the  third  line.    Agreed  to. 

Mr.   VAN  SCHOONHOVEN  moved  to  insert 


1077 


"  official"  before  "books,"  in  the  8th  line. — 
Agreed  to. 

Mr.  PORTER  moved  to  insert  "  legislative 
and"  before  "judicial,"  in  the  parenthesis.  He 
feared  giving  this  inquisitorial  power  to  the  court 
here  provided  for  removal  of  officers,  which  in 
high  partizan  times  might  be  used  to  remove  of- 
ficers merely  for  the  purpose  of  substituting 
agents  of  the  appointing  or  removing  power. 

Mr.  KIRKLAND  moved  the  following  substi- 
tute for  the  section : 

§  1.  Provision  shall  be  made  by  law  for  the  removal  for 
Misconduct  or  malversation  in  office  of  all  officers  (except 
judicial)  whose  powers  and  duties  are  not  local  and  legis- 
lative, and  who  shall  be  elected  at  general  elections,  and 
also  for  suj  plying  vacancies  created  by  such  removals 

Mr.  PORTER  advocated  his  motion  to  amend, 
and  insisted  upon  a  vote  being  taken. 

Mr.  JONES  moved  the  previous  question  upon 
all  the  questions  before  the  House,  and  there  was 
a  second. 

Mr.  PORTER'S  amendment  was  agreed  to. 

The  substitute  of  Mr.  KIRKLAND  was  adopted. 

Mr.  STOW  offered  the  following  additional 
section : 

J  2.  The  legislature  may  declare  the  cases  in  which  any 
office  shall  be  deemed  vacant,  where  no  provision  is  made 
lor  that  purpose  in  this  constitution, 

This  was  agreed  to. 

Mr.  JONES  moved  that  these  two  sections  be 
adopted  and  ordered  engrossed  as  a  part  of  arti- 
cle X.  Agreed  to. 

OFFICIAL  OATHS. 

The  Twelfth  Article  was  then  read  as  follows: 
§  1.  Members  of  the  legislature  and  all  officers,  execu- 
tive and  jud-cial,  except  such  inferior  officers  as  may  be 
by  law  exempted,  shall,  before  they  enter  on  the  duties  of 
their  respective  offices,  take  and  subscribe  the  following 
oath  or  affirmation: — 

"  I  do  solemnly  swear  (or  affirm,  as  the  case  may  be) 
that  I  will  support  the  Constitution  of  the  United  States, 
and  the  Constitution  of  the  State  of  New-York;  and  that  I 
•will  faithfully  discharge  the  duties  of 
according  to  the  best  of  my  ability." 

And  no  other  oath,  declaration  or  test  shall  be  required 
as  a  qualification  for  any  office  or  public  trust. 

Mr.  CROOKER  moved  to  add  after  the  words 
"  duties  of,"  the  words  ««  the  office  of." 

This  was  adopted. 

The  Article  was  then  adopted  and  ordered  to 
be  engrossed. 

FUTURE  AMENDMENTS, 

The  Thirteenth  Article  was  then  considered. 

The  first  section  was  then  read  and  adopted. 

The  second  section  was  then  read. 

Mr.  CROOKER  moved  to  refer  the  Article  to 
a  committee  of  one,  with  instructions  to  strike  out 
the  second  section  (providing  lor  future  Conven- 
tions.) Lost. 

The  Article  was  then  adopted  and  ordered  to 
be  engrossed. 

MISCELLANEOUS. 

This  Article  provides  for  the  expiration  of  the 
terms  of  offices  abolished,  and  the  commencement 
of  the  rerun  of  all  oihers,  and  the  organization  of 
the  new  Government  in  general. 

Mr.  RUGGLES  moved  the  following  addition  to 
the  fifth  section  : — 

"  The  courts  of  oyer  and  terminer  hereby  established 
shall,  in  their  respective  counties,  have  jurisdiction,  on 
and  after  the  day  las.  mentioned,  of  all  indictments  and 
proceedings  then  pending  in  the  present  courts  of  oyer 
and  terminer;  and  also  of  all  indictments  and  proceedings 


then  pending  in  the  present  courts  of  general  sessions  of 
the  peace,  except  in  the  city  of  New-York,  and  in  cases  of 
which  the  courts  ol  sessions  hereby  established  may  law- 
fully  take  cognizance;  and  of  such  judgments  and  proceed, 
ings  the  courts  of  session  hereby  established  shall  have 
jurisdiction  on  and  after  the  day  mentioned." 

Mr.  LOOMIS  moved  to  add  between  the  priat 
ed  section  and  the  amendment  of  Mr.  RUGGLES, 
the  following : — 

"  Proceedings  pending  in  courts  of  common  pleas  in 
writs  originally  commenced  in  justices'  courts  shall  be 
transferred  to  the  county  courts  provided  for  in  this  Con- 
stitution, in  such  manner  and  form,  and  under  such  regula- 
tions as  shall  be  provided  by  law." 

Both  amendments  were  agreed  to,  and  the  sec- 
tion adopted. 

Mr.  SWACKHAMER  enquired  by  what  au- 
thority the  select  committee  had  left  out  the  sec- 
tion abolishing  the  offices  of  masters  and  exami- 
ners  in  chancery  ? 

Mr.  BAKER  said  that  was  provided  for  in  the 
8th  section. 

Mr.  SWACKHAMER  said  that  it  was  not  the 
same.  He  moved  to  recommit  the  6th  section 
with  instructions  to  add  to  it,  the  following  : 

The  offices  of  master  and  examiner  in  chancery  are 
abolished. 

After  some  conversation  the  previous  question 
being  demanded  and  seconded,  the  motion  of  Mr. 
S.  was  negatived — and  the  section  agreed  to. 

The  8th  section  was  then  read  as  follows  : 

§8.  The  officers  of  Chancellor,  justices  of  the  Supreme 
Court,  master  in  Chancery  (except  as  herein  otherwise 
provided) ,  circuit  and  county  judges,  vice-chancellors,  as- 
sistant vice  chancellor,  supreme  court  commissioners,  ex- 
aminers in  chancery,  and  surrogates,  as  now  existing,  shaJJ 
expire  on  the  first  Monday  of  July,  1847. 

Mr.  BASCOM  offered  the  following  substitute  : 
§  8.  The  offices  of  chancellor,  justice  of  the  existing  su- 
preme court,  circuit  judge,  vice  chancellor,  assistant  vice 
chancellor,  judges  of  the  existing  county  courts  of  each 
county,  supreme  court  commissioner,  master  in  chancery^ 
examiner  in  chancery,  and  surrogate,  (except  as  herein 
otherwise  provided)  are  abolished  from  and  after  the  first 
day  of  July,  1847. 

After  some  debate,  Mr.  LOOMIS  moved  to 
amend  the  original  section,  by  making  the  last 
clause  read  as  follows  :  "  as  they  now  exist  are 
abolished  and  shall  expire  on  the  first  Monday  of 
July,  1847." 

Mr.  HARRIS  moved  to  strike  out  the  words 
"  as  they  now  exist."  Agreed  to. 

The  amendment  of  Mr.  LOOMIS  was  also  agreed 
to. 

The  substitute  of  Mr.  BASCOM  was  further  de- 
bated, when 

Mr.  NICOLL  called  for  the  previous  question, 
and  it  was  seconded,  and  the  substitute  of  Mr. 
B.  agreed  to. 

Mr.  BAKER  asked  unanimous  consent  to  add 
after  the  words  "  supreme  court  commissioner," 
"  commissioners  to  take  affidavits  to  be  read  in 
the  supreme  court."  Objected  to. 

Mr.  HARRIS  moved  to  insert  "justices  of  the 
peace"  after  "  New  York,"  in  the  10th  section. 
This  was  agreed  to. 

Mr.  W.  TAYLOR  then  offered  the  following  as 
an  additional  section : 

11.  The  9th  section  of  the  5th  article  so  far  as  it  relates 
to  the  officers  thereby  abolished,  shall  take  effect  on  the 
first  day  of  July,  next  after  the  adoption  of  this  Constitu- 
tion." 

After  some  conversation,  Mr.  T.  added    the 


1078 


words  "  except  in  cases  where  the  offices  shall 
sooner  expire,"  when  the  previous  question  be- 
ing moved  and  seconded,  the  section  was  reject- 
ed, ayes  18,  nays  76. 

Mr.  MORRIS  offered  the  following  additional 
section : — 

^  12.  All  courts  established  in  any  county  or  city,  and  all 
judicial  officers  of  such  courts  in  office  on  "the  first  day  of 
January,  1847,  shall  continue,  with  all  their  respective 
powers,  and  compensation  until  the  first  Monday  of  July, 
1847,  (unless  sooner  discontinued  by  the  Legislature,)  on 
which  day  the  terra  of  office  of  all  such  judicial  officers 
shall  expire.  And  the  courts  in  cities  shall  remain  with 
their  present  powers  and  jurisdiction  until  otherwise  di- 
rected by  law." 

Mr.  TAGGART  moved  to  strike  out  the  words 
"  on  which  day  the  term  of  all  such  judicial  offi- 
cers shall  expire." 

Mr.  MURPHY  moved  to  add  at  the  end  of  the 
section  as  follows : 

"  And  the  judicial  officers  of  such  courts  shall  continue 
in  office  until  the  expiration  of  their  respective  terms  as 
now  established,  unless  such  courts  be  discontinued  by  the 
legislature." 

Mr.  WHITE  moved  the  previous  question  on 
Mr.  TAGGART'S  amendment,  and  it  was  sustain- 
ed, and  the  amendment  adopted. 

Mr.  NICOLL  moved  the  previous  question  on 
Mr.  MURPHY'S  amendment  and  the  section.  It 
was  sustained,  the  amendment  rejected,  and  the 
section  adopted. 

Mr.  RUGGLES  laid  on  the  table  a  motion  to 
reconsider  this  vote. 

Mr.  ST.  JOHN  offered  an  additional  section,  as 
follows : 

^  — .  No  public  officer  shall  receive  pay  from  the  public 
treasury  for  services  rendered  in  two  capacities  during  the 
same  period  of  time;  nor  shall  any  such  officers  receive 
pay  for  constructive  services  or  lor  services  which  have 
not  actually  been  performed. 

Laid  on  the  table — ayes  52,  noes  35  :  on  the 
motion  of  Mr.  NICOLL. 

Mr.  KENNEDY  offered  an  additional  section,  as 
follows  : 

§  — .  All  appointments  by  any  legislative  body,  or  offi- 
cial board,  on  whom  appointments  to  office  may  devolve, 
shall  be  made  viva  voce;  and  a  record  of  the  vote  of  each 
member  shall  be  entered  on  their  respective  journals. 

Laid  on  the  table  for  the  present,  at  the  sug- 
gestion of  Mr.  TALLMADGE. 

Mr.  TALLMADGE  offered  a  resolution  in- 
structing the  committee  on  revision  to  inquire 
into  the  expediency  of  providing  for  a  separate 
submission  of  the  articles  as  far  as  practicable. 

Mr  RUGGLES  moved  to  amend  so  as  to  in- 
struct the  committee  to  report  the  judiciary  arti- 
cle for  separate  submission. 

Pending  a  debate  which  arose  on  these  propo- 
sitions, the  Convention,  on  motion  of  Mr.  NICH- 
OLAS, adjourned. 

FRIDAY,  (HOthday,)  October  9. 

No  Clergyman  present. 

FUNDS  IN  CHANCERY. 

Mr.  MANN  called  for  his  resolutions  reported 
yesterday  from  the  select  committee  on  the  funds 
in  Chancery. 

Mr.  LOOMIS  opposed  the  resolutions.  These 
matters  might  well  be  left  to  the  legislature, — 
which  must  make  some  provision  for  the  disposi- 
tion of  these  funds,  the  Court  of  Chancery  being 
abolished. 


Mr.  MANN  spoke  in  defence  of  his  resolu- 
tions, the  passage  of  which  he  thought  neces- 
sary 

Mr.  TAGGART  trusted  that  the  Convention, 
after  imposing  upon  the  officers  in  Chancery  such 
onerous  duties  as  they  had  been  required  to  per- 
form, would  make  some  use  of  the  information 
furnished. 

Mr.  MILLER  moved  to  lay  the  first  resolu- 
tion on  the  table.  Carried — i2  to  32. 

The  second  resolution  was  adopted. 
CITY  COURTS. 

Mr.  RUGGLES  moved  to  reconsider  the  sec- 
tion adopted  last  night,  on  the,  motion  of  Mr. 
MORRIS,  relating  to  courts  in  cities,  for  the  pur- 
pose of  adopting  the  following  in  its  place : 

§ — .  All  local  courts,  established  in  any  city  or  vil- 
lage, including  the  superior  court,  Common  Pleas  and 
Surrogates  courts  of  the  city  and  county  of  New  York, 
shall  remain  with  their  present  powers  and  jurisdiction 
until  otherwise  directed  by  the  legislature;  and  the 
judges  ot  such  courts  and  any  clerks  thereof  in  office  on 
the  first  day  of  January,  1849,  shall  continue  in  office 
until  the  expiration  of  their  terms  of  office  or  until  the 
legislature  shall  otherwise  direct. 

The  motion  to  reconsider  was  agreed  to,  after  a 
brief  explanation  by  Mr.  O'CoNOR.  « 

The  substitute  of  Mr.  RUGGLES  being  before 
the  Convention, 

Mr.  PATTERSON  moved  to  amend  by  striking 
out  "  and  any  clerks  thereof,"  and  also  all  after 
"  office,"  near  the  end  ot  the  section,  and  insert- 
ing "  until  the  first  Monday  of  July,  1847,  and  no 
longer." 

Messrs  O'CONOR,  PATTERSON,  LOOMIS, 
and  WORDEN  discussed  this  proposition. 

Mr.  BERGEN  moved  the  previous  question, 
which  was  seconded. 

Mr.  PATTERSON'S  amendment  was  lost,  ayes 
35,  noes  61,  and 

The  substitute  of  Mr.  RUGGLES  was  adopted. 

Mr.  MORRIS  asked  unanimous  consent  to  trans- 
fer the  words  "  until  otherwise  directed  by  the  Le- 
gislature." 

The  section  as  amended  was  agreed  to. 

Mr.  KENNEDY  called  for  the"  consideration  of 
the  section  offered  by  him  yesterday,  declaring  that 
the  votes  for  all  appointments  to  office  by  any 
board  upon  whom  it  should  be  devolved  to  make 
them  should  be  given  viva  voce,  and  entered  on 
the  journals  of  such  bodies. 

The  Convention  refused  !o  consider,  34to43. 
THE  REVISED  CONSTITUTION. 

On  motion  of  Mr.  WARD,  the  Conrention  pro- 
ceeded to  the  unfinished  business. 

The  question  was  on  the  14th  article. 

Mr.  RUSSELL  moved  the  previous  question, 
and  the  article  was  agreed  to,  and  ordered  to  be 
engrossed. 

COLORED  SUFFRAGE. 

The  Convention  next  proceeded  to  the  consid- 
eration of  the  report  of  the  committee  on  revision 
submitting  separately  the  proposition  to  extend 
the  right  of  suffrage  to  colored  citizens.' 

Mr.  LOOMIS  moved  to  recommit  with  instruc- 
tions to  strike  out  all  to  the  fourth  paragraph  and 
insert  a  provision  that  the  last  clau.se  of  the  first 
section  of  the  article  on  suffrage  shall  be  submit- 
ted to  the  people  for  their  approval  or  rejection  ; 
and  to  amend  the  remainder  of  the  report  in  ac- 
cordance. He  desired  to  avoid  the  absurdity  of 


1079 


having  two  parts  of  the  same  article  in  direct  con- 
tradiction with  each  other. 

Mr.  NICHOLAS  said  this  would  unsettle  the 
freehold  suffrage  of  the  colored  people.  The 
"ntion  had  decided,  by  a  strong  vote,  not  to 
deprive  them  of  this  right,  and  that  it  should  not 
be  involved  by  this  special  submission  of  the  ques- 
tion of  equal  suffrage.  If  the  people  decided  in 
favor  of  equal  suffrage,  the  present  right  would  of 
course  become  a  nullity,  but  should  the  special 
submission  fail,  he  wished,  and  he  believed  the 
Convention  intended,  that  the  present  freehold 
suffrage  should  be  continued  in  full  force. 

Mr.  JONES  moved  to  lay  the  motion  to  recom- 
mit on  the  table.  Agreed  to. 

Mr.  RUSSELL  moved  the  previous  question 
on  the  first  resolution,  and  there  was  a  second, 
and  it  was  adopted — ayes  84,  noes  25  : 

NOES— Messrs.  Allen,  Cambreleng,  Conely,  Cornell, 
Cuddeback,  Brundage,  Harrison,  Hunt,  A.  Huntingdon, 
Jones,  Kennedy,  Mann,  Morris,  O'Conor,  Perkins,  Riker, 
Santbrd,  Shepard,  Stephens,  Tilden,  Vaclie,  Ward,  White, 
Wood,  Yawger— 25. 

Mr.  O'CONOR  moved  to  lay  the  second  motion 
on  the  table  until  the  supplemental  report  was 
taken  up.  Lost — ayes  20,  noes  84. 

The  resolution  was  agreed  to  and  both  ordered 
to  be  engrossed. 

Mr.  W.  TAYLOR  offered  the  following,  and  it 
was  agreed  to  :  , 

Resolved,  That  it  shall  be  the  duty  of  the  Secretary  of 
State,  to  cause  the  Constitution,  as  proposed  to  be  amend- 
ed, together  with  the  forms  of  the  ballots,  to  be  published 
at  least  twice  prior  to  the  election  in  each  of  the  public 
newspapers  published  in  this  state,  Provided,  the  same 
shall  be  published  for  such  reasonable  compensation  as 
shall  be  fixeu  by  the  Secretary  of  State  and  Comptroller: 
but  m->  neglect  to  publish  ttie  same  in  any  of  the  papers  of 
this  state  shall  impair  the  validity  of  the  notice 

The  Convention  then  took  up  the  supplemental 
report  of  the  committee  on  revision,  the  first  re- 
solution, as  follows,  being  under  consideration  : 

Resolved,  That  in  the  judgment  of  this  Convention  the 
several  amendments  lo  this  Constitution,  agreed  to  by 
this  Convention,  cannot  be  prepared  so  as  to  be  voted  up- 
on separately. 

Mr.  KIRKLAND  rose  to  protest  against  this 
resolution.  The  act  under  which  this  Conven- 
tion had  acted,  required  them  to  submit  to  the 
people  each  article  separately,  if  in  the  judgment 
of  the  Convention  it  should  be  practicable. — 
Deeming  it  practicable,  he  could  not  vote  for  the 
resolution.  « 

Mr.  BASCOM  said  the  act  required  another 
thing.  It  required  them  to  submit  the  amended 
Constitution  to  the  people  at  the  coining  election, 
which  they  should  not  do,  if  they  spent  a  week 
or  two  in  arranging  it.  He  moved  the  previous 
question,  and 


The  first  resolution  was  adopted,  ayes  70,  noes 
40. 

Mr.  O'CONOR  offered  the  following  : 

Resolved,  That  it  be  referred  to  a  select  committee  of 
three  to  arrange  the  amendments  to  the  Constitution 
agreed  to  by  thi-  Convention  in  such  manner  that  the 
aiuendmen's  relating  to  the  judiciary ,  and  also  the  amend- 
ment rela-m^  to  future  amendments,  may  be  separately 
submitted;  and  that  the  said  committee  report  the  manner 
of  bo  sui.mittuig  all  said  amendments,  together  with  the 
iorm  of  the  ballot,  within  two  hours. 

Mr.  COOK  enquired  if  it  was  in  order. 

The  PRESIDENT  (Mr.  WARD  pro.  tern.)  de- 


cided  that  it  was  not,   without  a  reconsideration 
of  the  vote  just  taken. 

Mr.  O'CONOR  appealed,  and  proceeded  to  ex- 
plain. He  said  the  Convention  had  decided  the 
several  amendments  could  not  all  be  voted  upon 
separately;  but  it  did  not  follow  that  some  partic- 
ular articles  might  not  be  separately  submitted. 

Mr.  SWACKHAMER  contended  that  the  de- 
cision of  the  chair  was  right. 

Mr.  HARRIS  sustained  the  chair,  and  looked 
upon  the  appeal  as  the  last  struggle  against  a  con- 
stitution  which  was  the  best  that  ever  was  framed. 
He  had  never  moved  the  previous  question,  but 
he  thought  this  was  the  proper  place  to  begin. — 
He  moved  the  previous  question. 

Mr.  O'CONOR  called  for  the  yeas  and  nays  on 
seconding,  and  there  were  yeas  70,  nays  26. 

The  decision  of  the  CHAIR  was  affirmed,  ayes 
70,  noes  17. 

The  2d,  3d  and  4th  resolutions  were  adopted. 
Mr.  HOFFMAN  here  rose  and  said—"  I  sup- 
pose, Mr.  President,  that  we  have  now  got  nearly 
through  with  our  labors.  We  have  made  a  Con- 
stitution which  I  admit  contains  some  palpable 
defects  and  errors ;  but  I  affirm  that  it  contains 
more  excellent  matter,  got  together  by  this  Con- 
vention, than  any  constitution  in  the  whole  earth. 
[  suppose  that  the  resolutions  just  adopted,  to- 
gether with  that  adopted  on  the  motion  of  the 
gentleman  from  Onondaga,  (Mr.  W.  TAYLOR,) 
should  be  ordered  to  be  engrossed  with  the  Con- 
stitution as  one  of  the  Convention's  public  acts. 
[  therefore  make  you  that  motion." 

Mr.  NICOLL  said  this  would  be  done — the  res- 
olutions being  engrossed  on  a  separate  piece  ot 
parchment. 

Mr.  HOFFMAN  varied  his  motion  accordingly, 
and  it  was  agreed  to  nem  con. 

Mr.  HOFFMAN  then  suggested  that  some 
member  who  could  write — he  could  not,  and, 
therefore,  he  hoped  he  should  not  be  on  the  com- 
mittee— should  move  the  appointment  of  a  com- 
mittee to  prepare  a  short  address  to  the  people 
to  accompany  the  Constitution. 

Mr.  VAN  SCHOONHOVEN  hoped  the  gentle- 
man from  Herkimer  would  make  the  motion,  and 
he  be  appointed  on  the  committee  ;  and  if  writ- 
ing was  inconvenient  to  him,  he  could  obtain  an 
amanuensis. 

Mr.  NICOLL  moved  that  a  committee  of  three 
be  appointed,  of  which  Mr.  HOFFMAN  should  be 
the  Chairman,  to  prepare  the  address  suggested. 

Mr.  VAN  SCHOONHOVEN  suggested  that  the 
number  of  the  committee  be  five. 
Mr.  NICOLL  assented. 

Mr.  HOFFMAN  moved  to  strike  out  his  own 
name. 

Mr.  BASCOM  said,  we  have  excused  the  gen- 
tleman from  Herkimer  a  number  of  times,  but  I 
cannot  vote  to  excuse  him  now. 

The  motion  to  excuse  Mr.  HOFFMAN  was 
negatived.  The  resolution  was  then  adopted. 

The  CHAIR  designated  Mr.  HOFFMAN,  POR- 
TER, STOW  and ,  as  said  committee. 

Messrs.  SMITH  and  WHITE  both  called  for 
the  consideration  of  a  resolution  some  time  since 
offered  Ijy  Mr.  CHATFIELD,  to  designate  the  Sec- 
retaries and  Door-keepers,  in  order  to  secure 
them  the  compensation  formerly  paid  to  such  of- 
ficers iri  the  Legislature. 


1080 


The  resolution  was  discussed  by  various  gen 
tlemen. 

Mr.  NICHOLAS  said  that  ours  was  a  govern 
ment  of  laws,  and  the  very  being  of  that  govern- 
ment depended  upon  the  supremacy  of  the  laws. 
As  constitution-makers,  we  should  not  practice 
or  countenance  such  an  evasion  of  the  law  as 
was  now  proposed.  He  would  be  liberal  in  the 
allowance  to  the  attendants  on  the  Convention  so 
far  as  the  law  would  permit,  and  if  the  law  was 
defective  and  would  not  remunerate  them  for  their 
services,  he  would  unite  with  other  gentlemen  in 
a  representation  to  that  effect  to  the  Legislature, 
and  he  had  no  doubt  ample  justice  would  be  done 
them ;  but  he  would  not  evade  the  existing  law. 
He  would  not  attempt  to  do  by  indirect  means 
what  could  not  be  done  under  a  fair  construction 
of  the  existing  law. 

Mr.  MORRIS  offered  a  substitute  to  the  effect 
that  each  member  of  this  Convention  would  con- 
tribute his  equal  quota  from  his  private  means,  to 
make  up  the  pay  of  these  officers  to  $3  per  day. 

Mr.  JONES  offered  a  substitute  requesting  the 
next  Legislature  to  make  up  the  pay  of  these  of- 
ficers to  $3  per  day. 

Mr.  MORRIS  withdrew  his  amendment,  and 
that  of  Mr.  JONES  was  adopted. 

Mr.  CAMBRELENG  remarked  that  there  was 
a  class  of  hard  working  gentlemen,  who  had 
served  us  faithfully,  and  who  were  entitled  to  our 
thanks,  which  were  all  that  we  had  the  power  to 
give  them.  He  offered  the  following  resolution, 
which  was  unanimously  adopted  : 

Resolved,  That  the  six  gentlemen  connected  with  the 
Albany  Argus,  Albany  Atlas  and  Albany  Evening  Journal, 
as  Reporters,  viz  :  Sherman  Croswell,  Richard  Sutton, 
Wm.  G.  Bishop,  Won.  H.  Attree.  Wm.  H.  Hill  and  Francis 
S.  Rew,  be  entitled  to  the  thanks  of  this  Convention  for 
the  industry  and  ability  with  which  they  have  discharged 
their  duty  as  Reporters  for  the  papers  to  which  they  have 
been  respectively  attached. 

Mr.  STOW  being  compelled  to  leave  the  city 
to-day,  asked  to  be  excused  from  serving  on  the 
committee  to  prepare  an  address.  Agreed  to. 

Mr.  MILLER  offered  a  resolution  recommend- 
ing the  next  legislature  to  provide  for  the  pay- 
ment of  the  clergymen  officiating  at  this  Conven- 
tion. Adopted. 

Mr.  WORDEN  offered  a  resolution  returning 
the  thanks  of  this  Convention  to  the  clergy. — 
Adopted. 

Mr.  NICOLL  (for  himself  and  Mr.  BAKER) 
the  engrossing  committee,  reported  the  Constitu- 
tion as  correctly  engrossed  upon  parchment,  which 
the  Secretaries  proceeded  to  read. 

At  two  o'clock,  six  articles  having  been  read, 
the  reading  was  suspended,  and  the  Convention 
took  a  recess. 

AFTERNOON  SESSION. 

Mr.  W.  TAYLOR  offered  a  resolution  directing 
the  Secretary  of  State  to  compare  the  printed  co- 
pies of  the  constitution  with  the  engrossed  copy 
to  be  deposited  in  his  office,  &c.,  &c.,  which  was 
agreed  to. 

The  reading  of  the  engrossed  constitution  was 
then  concluded. 

Mr.  TAGGART  moved  that  the  constitution, 
as  read,  be  adopted  and  signed;  adding  that 
though  there  were  many  things  in  it  that  he  dis- 
approved, as  a  whole  it  was  a  better  constitution 


than  we  had  ever  had,  and  he  was  disposed  to 
take  it  as  it  was. 

Mr.  PATTERSON  seconded  the  motion,  and 
hoped  it  would  receive  a  unanimous  aye.  That 
the  instrument  had  defects  could  not  be  denied  ; 
but  on  the  whole  there  was  so  much  more  in  it 
that  he  approved,  than  that  he  did  not  approve, 
that  he  should  give  it  his  hearty  approval.  He 
adverted  to  some  of  its  leading  features  which 
gave  it  a  great  superiority  over  the  old  constitu- 
tion— glancing  at  the  provisions  in  regard  to  the 
legislative,  the  judicial,  executive  and  adminis- 
trative departments— the  abolition  of  hundreds 
of  useless  offices — the  election  of  the  necessary 
officers  by  the  people  directly — the  ample  provi- 
sion made  for  the  payment  of  the  state  debt  and 
the  completion  of  the  unfinished  works — saying 
that  as  a  whole  no  State  in  the  Union  could  boast 
of  a  better  constitution.  In  the  judiciary  de- 
partment particularly,  the  improvement  upon  the 
present  system  was,  in  his  judgment,  greater  than 
in  any  other  department.  He  had  no  doubt  the 
instrument  would  be  adopted  by  the  people  by  a 
large  majority,  and  it  deserved  to  be. 

Mr.  MURPHY  said  that  he  felt  bound,  in  con- 
sequence of  the  remarks  of  the  gentleman  from 
Chautauque,  who  had  just  taken  his  seat,  to  trou- 
ble the  Convention  with  one  word.  With  that 
gentleman  he  should  vote  for  the  Constitution, be- 
cause he  believed  that  the  good  exceeds  the  evil 
which  it  contains;  but  that  gentleman  had  point- 
ed out  what  he  considered  to  be  its  merits,  and 
compelled  him  to  speak  of  one  of  ils  most  unfor- 
tunate features — and  now  solemnly  to  protest 
against  it — and  that  is,  the  provision  which  au- 
thorizes private  property  to  be  laken  for  certain 
private  purposes — a  stretch  of  power,  in  his  opin- 
ion, beyond  any  exercised  by  any  other  country 
where  the  fruits  of  a  man's  labor  are  respected. 

Mr.  RICHMOND  also  protested  against  that 
part  of  it. 

Mr.  -JONES  sent  up  the  following  resolution, 
which  was  adopted  : — 

Resolved,  That  the  engrossed  Constitution  be  now  signed 
by  the  members  of  the  Convention,  as  an  attestation  there- 
of ;  and  that  those  members  not  now  in  attendance  be  at 
liberty  to  sign  at  any  time  previous  to  the  3d  day  of  No- 
vember next,  in  tne  office  of  Secretary  of  State. 

Mr.  O'CONOR  gave  briefly  the  reasons  why  he 
could  not  record  a  vote  in  favor  of  this  constitu- 
tion— premising  that  he  should  not  have  done  so, 
had  not  the  gentleman  fro«n  Chauiauque  given  at 
large  the  reasons  why  he  should  vote  tor  it.  He 
went  on  to  say  in  regard  to  the  single  part  of  it  to 
which  he  had  given  most  attention,  and  which 
had  received  from  the  gentleman  the  highest  com- 
mendation— he  meant  the  judicial  department — 
that  he  thought  the  Convention  had  altogether  fail- 
ed  to  present  to  the  people  a  constitution  which 
would  meet  the  exigencies  ot  the  times,  or  in 
any  degree  remedy  the  difficulties  in  this  respect, 
which  led  to  the  calling  of  this  Convention— that 
it  did  not  in  any  moderate  degree  meet  his  approv- 
al and  was  a  most  signal  failure.  It  would  there- 
fore be  his  duty  to  vole  against  the  constitution, 
and  to  induce  his  fellow  citizens  to  take  the  same 
course  when  they  came  to  vote  upon  it. 

Mr.  VAN  SCHOONHOVEN  said,  though  a 
vote  for  this  constitution  did  not  imply  an  ap- 
proval of  every  item  of  it,  yet  he  was  prepared  to 


1081 


vote  for  every  article  in  it  as  a  whole — not  how- 
ever without  protesting  against  the  principle  al- 
luded to  by  Mr.  MURPHY,  and  qualifiedly  against 
the  judiciary  article.  As  a  whole,  however,  he 
approved  of  it,  and  should  vote  for  it,  and  do  what 
he  could  to  sustain  it  at  the  polls,  believing  it  to 
be  a  great  improvement  on  the  present  constitu- 
tion. 

Mr.  WORDEN  did  not  believe  that  this  con- 
stitution was  to  be  adopted  on  any  such  narrow 
ground  as  that,  by  the  enlightened  constituency 
represented  here",  but  because  it  commended  it- 
self to  their  judgment.  He  regarded  this  consti- 
tution, as  a  whole,  as  an  improvement  on  the  sci- 
ence of  government— throwing,  as  it  did,  upon 
the  people  the  responsible  duty  of  keeping  their 
o\vn  government  under  their  own  control,  and  of 
preserving  and  perpetuating  their  own  rights  and 
liberties.  "  There  were  provisions  in  it  that  he 
should*  have  preferred  to  have  had  changed  ;  but 
in  the  fundamental  principle  to  which  he  had  al- 
luded, it  was  \vhat  he  desired  to  see  it.  He  was 
willing  to  leave  this  great  experiment  of  republi- 
can government  in  the  hands  of  the  people,  with 
the  least  possible  trammels  upon  their  free  ac- 
tion. And  this  the  instrument  intended  to  do — 
and  having  framed  it,  after  much  labor,  and  in  a 
spirit  of  compromise  and  concession,  he  hoped  we 
should  submit  it  to  the  people  without  attempting 
to  influence  their  action  for  or  against  it,  by 
pointing  to  this  or  that  provision  as  objectionable 
but  that  the  whole  instrument  would  be  left  to 
their  calm  and  deliberate  judgment. 

Mr.  CAMJi  IELENG  had  hoped  the  vote  on 
this  Constitution  would  have  been  unanimous,  at 
least  for  submission.  He  held  up  for  the  imita- 
tion of  those  who  based  their  objection  to  the  in- 
strument upon  a  single  article — the  example  of 
one  of  the  most  distinguished  statesmen  of  the 
Convention  of  '21  from  Oneida,  who  separated 
from  the  few  friends  with  whom  he  had  acted 
against  the  details  of  the  constitution,  when  the 
question  came  up  on  voting  for  it,  and  its  submis- 
sion—and this,  on  the  ground  that  it  contained 
in  itself  a  provision  for  its  own  amendment.  Mr. 
C.  went  on  to  say  that  this  was  the  the  first  con- 
stitution ever  formed  that  rested,  not  nominally, 
but  in  fact,  on  a  popular  foundation — which  made 
your  legislative,  judicial  and  executive  depart- 
ments, distinct  in  reality  as  well  as  in  name,  and 
all  of  them  springing  directly  from  the  people. — 
He  went  heartily  for  every  article  in  this  consti- 
tution. With  all  its  defects,  it  was  sound  in  prin- 
ciple, from  beginning  to  end.  Its  defects  con- 
sisted in  its  extent,  and  in  some  respects  in  its 
language;  but  in  principle  it  was  sound  from  the 
first  syllable  to  the  lust.  He  should  give  it  his 
hearty  approbation,  and  he  had  hoped  every  mem- 
ber would. 

Mi.  Sl'OVV  felt  embarrassed  under  the  form  of 
proceeding  ordered  by  the  Convention.  An  at- 
testation might  be  regarded  as  a  solemn  sanction 
nf  the  instrument  l>y  every  member  signing  it  in 
that  lorrn.  For  one,  he  would  not  give  his  un- 
qualified assent  to  the  instrument.  It  might — for 
the  people  would  have  very  little  time  to  examine 
and  discuss  it.  It  adopted,  he  trusted  it  might 
prove  to  be  tor  the  best  interests  of  our  common 
country,  and  he  should  then  give  it  his  sincere 
support,  and  endeavor  to  carry  it  out.  But  now, 

110 


he  was  called  upon  to  decide  tor  himself — and  his 
oninion  was  that  this  constitution  would  not  meet 
ihe  first  expeciations  of  the  state  orlhe  couniry. 
Il  was  not  such  a  constitution  as  he  approved  ;  and 
lest  his  silence  might  be  regarded  as  a  tacit  ap. 
prov al  of  it,  be  felt  called  upon  to  express  this 
hi<»  dissent. 

Mr.  MORRIS  said  he  should  not  have  said  a 
\vord  but  for  the  remarks  of  his  friend,  (Mr.  0'- 
CoifOK.)  and  his  not  less  esteemed  friend  from 
Erie,  (Mr.  STOAV)  which  would  go  forth  among 
thousands  who  had  not  perhaps  time  to  consider 
this  instrument  fully,  and  who  might  thus  imbibe 
a  prejudice  against  it.  There  were  many  things 
in  it  that  he  and  others  voted  against,  not  because 
it  was  not  an  improvement  upon  the  present  con- 
stitution, but  because  he  desired  to  set  some'hing 
better — for  there  was  not  a  provision  in  this  in- 
strument that  he  did  not  regard  as  an  improve- 
ment upon  the  old  constitution.  Every  part  and 
parcel  of  it  was  founded  on  the  principle  on  which 
our  government  was  based — the  intelligence  and 
capacity  of  the  people  for  self-government — he 
could  with  pleasure  vote  for  each  and  every  part 
of  it — believing  that  it  was  designed  and  calcula- 
ted to  promote  the  best  interests  of  the  people  of 
the  state,  individually  and  collectively. 

Mi.  DANA  concurred  with  Mr.  MORRIS,  pro- 
testing, however,  against  the  principle  of  making 
constitutional  distinctions  between  citizens  on  ac- 
count of  color. 

Mr.  MARVIN  said  he  would  vote  for  the  con- 
stitution here,  int  ndmg,  however,  by  that,  to  sub- 
mit it.  to  the  people,  for  their  deliberate  conside- 
ration. It  contained  provisions  which  he  had 
combatfed  from  the  beginning  to  the  end — provi- 
sions which  he  believed  would  be  changed  in  a 
tew  years,  and  through  the  power  of  amendment 
which  was  contained  in  it.  He  would  not  advert 
to  the  particular  provisions  to  which  he  had  oiten 
expressed  his  objections,  and  which  were  not,  in 
his  judgment,  such  as  the  people  had  a  right  to 
expect  from  ns.  But  there  was  running  through 
it  a  popular  principle  of  which  he  approved  most 
heartily  ;  and  in  giving  his  vote  for  it,  he  intend, 
ed  to  approve  of  its  general  tenor,  and  not  to 
sanction  the  particular  articles  in  regard  to  which 
his  opinions  were  well  known — particularly  that 
feature  of  it  which  placed  trammels  on  the  action 
ot  the  people  through  the  legislature.  These  and 
!  (fther  defects,  he  h;id  no  doubt  would  be  changed 
'  under  the  power  to  amend. 

Mr.  RICHMOND  expressed  his  approval  of  the 
popular  principle  which  ran  through  the  whole 
instrument,  and  particularly  of  the  provision  ob- 
jected to  by  Mr.  MARVIN,  which  he  thought  one 
of  the  best  provisions  in  it. 

Mr.  CHAMBERLAIN  said  he  was  one  of  those 
who  in  one  branch  of  the  legislature  voted  against 
the  bill  calling  this  Convention  together.  He 
voted  against  it  at  the  polls,  and  did  everything 
he  could  fairly  and  honorably  to  defeat  it.  Not 
because  he  did  not  think  some  amendments  to 
the  constitution  necessary  and  proper ;  but  be- 
cause he  believed  the  instrument  itself  pointed 
out  a  way  in  which  it  could  be  amended  in  such 
manner^as  the  people  might  desire.  But  the  peo- 
ple thought  otherwise.  This  Convention  was 
authorised  by  the  people,  and  they  had  sent 
their  representatives  here  to  revise  the  constitu- 


1082 


tion.  He  was  sent  here,  not  expecting  however 
to  do  much  towards  perfecting  a  constitution; 
but  intending  rather  to  guard  the  interests  of  his 
constituents,  so  far  as  he  could  do  so  fairly  and 
honorably.  In  that  respect  he  was  fully  satisfied. 
He  had  voted  against  several  articles  of  the  Con- 
stitution when  presented  separately.  He  prefer, 
red  that  the  people  should  have  the  same  oppor- 
tunity to  express  their  judgment  upon  each  arti- 
cle. But  the  Convention  had  willed  otherwise, 
and  he  submitted  to  their  decision.  He  dissented 
from  a  portion  of  the  instrument;  but  there  were 
many  bright  spots  about  it;  and  he  should  sus- 
tain it  as  a  whole  with  great  pleasure. 

Mr.  BRUCE  regarded  the  instrument  as  far 
better  than  the  present  Constitution  ;  and  though 
opposed  to  some  things  in  it,  he  should  sustain  it 
as  a  whole,  here  and  elsewhere. 

The  Convention  then  proceeded  to  vote,  and 
the  Amended  Constitution  was  AGREED  to  by 
the  following  vote : 

AYES— Messrs.  Allen,  Angei,  Archer,  Ayrault,  F.  F. 
Backus,  H.  Backus,  Baker,  Bascom,  BowdisU,  lirayton, 
Bruce,  Brundage,  Bull,  Burr.  Cambreleng,  =K.  Campbell, 
jr.  Candee,  Chamberlain,  Clyde,  Conely,  Cook,  Cornell, 
Crocker,  Cuddeback,  Dana,  Danfoith,  Dodd,  Dubois, 
Flanders,  Forsyth,  Gebhard,  Graham,  Greene,  Harris, 
Harrison,  Hawley,  Hoffman,  Hotchkiss,  A.  Huntington, 
Hutchinson,  Hyde,  Jones,  Kemble,  Kernan,  Kingsley, 
Kirkland,  Loomis,  Mann,  McNeil,  Marvin,  Maxwell,  Mil- 
ler, Morns,  Munro,  Murphy  Nellis,  Nicholas,  Nicoll, 
Parish,  Patterson,  Penniman,  Perkins,  Porter,  Powers,  Pre- 
sident. Rhoades,  Richmond,  Riker,  Ruggles,  Rus>ell,  St. 
John,  Salisbury,  Sanford,  Sears,  Shaver,  Hhaw,  Sheldon. 
E.  Spencer,  Stanton,  Stephens,  Stetson,  Strong,  Swack- 
hamer,  Taft,  Taggart,  J.  J.  Tayloi,  W.  Taylor,  Tilden, 
Townsend  Tufhill,  Van  Schoorihover,  Ward,  Warren, 
Waterbury,  Willard  Witb*ck.  Worden,  A.  Wright,  W. 
B.  Wright,  Yawger,  Young,  Younjs— 104. 

NOES— Messrs.  K.  Huntington.O'Conor,  W.  H.  Spencer, 
Stow,  Tallmaoge,  White— 6. 

The  remaining  18  members,  were  absent. 

[Gov.  BOUCK,  Mr.  BROWN,  Mr.  D.  D.  CAMP- 
BELL, Mr.  CHATFIELD,  Mr.  CLARK,  Mr.  GARD- 
NER, Mr.  HUNTER,  Mr  JORDAN,  Mr.  McNrrr, 
Mr.  NELSON,  Mr.  SIMMONS,  and  Mr.  SMITH 
were  absent  from  the  city  when  the  vote  was  ta- 
ken.] 

Mr.  HOFFMAN  from  the  committee  appoint- 
ed for  that  purpose  submitted  an  Address  to  the 
People. 

Mr.  KENNEDY  here  said  that  he  should  be 
o-lad  to  vote  for  the  constitution  if  allowed  to 
have  recorded  on  the  journal  a  brief  explanation, 
which  he  sent  up. 

Objections  being  made,  it  could   not  be   ve- 

•'  Mr.  WORDEN  moved  that  the  address  be 
signed  by  the  President  and  Secretaries,  and  be 
printed  with  the  official  copies  of  the  constitu- 
tion ordered  to  be  printed  for  distribution.  He 
took  the  occasion  to  say  that  the  address  was  in 
the  cold,  rigid,  truthful  language  of  the  gentle- 
man from  Herkimer,  and  the  gentleman  would 
pardon  him  for  saying,  it  was  in  the  eloquent  and 
forcible  manner  which  that  gentleman  at  alt  times 
could  command.  It  presented  the  naked  facts- 
leaving  the  people,  without  any  attempt  to  in- 
fluence their  decisions,  to  form  their  own  conclu- 
sions. 

The  motion  was  agreed  to. 

Mr.  LOOMIS  offered  the  following  resolution, 
which  was  agreed  to  : — 


Resolved,  That  the  President  do,  in  Convention,  deliver 
to  the  Secretary  of  State  the  engrossed  amended  Constitu- 
toin,  to  be  deposited  on  record  in  his  office. 

Mr.  SWACKHAMER  offered  the  following  re- 
solution, which  was  unanimously  adopted  : 

Resolved,  That  JAMES  E.STARBUCK,  FRANCIS  SEGER  and 
HENRY  W.  STRONG,  are  entitled  to  the  thanks  of  this  Con- 
vention for  the  faithful  and  efficient  manner  in  which  they 
have  discharged  their  duties  as  Secretaries. 

Mr.  PATTERSON  [Mr.  CAMBRELENcin  the 
chair  pro  tern,]  said  he  had  a  resolution  to  offer, 
which  he  trusted  would  receive  the  unanimous 
vote  of  the  Convention.  It  was  a  resolution  of 
thanks  to  our  presiding  officer,  and  which  he  took 
great  pleasure  in  offering.  He  knew  full  well  the 
arduous  and  delicate  duties  of  the  chair,  and  he 
could  appreciate  the  courteous  and  impartial  man- 
ner in  which  they  had  been  discharged.  He  trust- 
ed the  Convention  would  adopt  the  resolution 
with  a  hearty  and  unanimous  aye  : 

Resolved,  That  the  thanks  of  this  Convention  be  pre- 
sented to  the  Hon  JOHN  TRACY,  for  the  able,  dignified 
and  impartial  manner  in  which  he  has  discharged  the  ar- 
duous and  responsible  duties  of  the  Chair  ;  and  that  in  re- 
tiring therefrom  he  carries  with  him  the  best  wishes  of 
every  member  of  this  Convention. 

The  resolution  was  unanimously  adopted. 

Mr.  E.  HUNTINGTON  said  he  gave  a  very  re- 
luctant vote  against  the  Constitution.  There  were 
many  things  in  it  to  which  he  could  give  his  un- 
qualified approval.  Indeed,  with  the  exception 
of  the  article  on  the  judiciary  anil  that,  on  corpora- 
tions, he  liked  the  constitution  very  well.  But 
his  objections  to  these  articles  prevented  his  giv- 
ing a  vote  for  it. 

I\3r.  BAKER,  from  the  engrossing  committee, 
presented  the  resolutions  of  submission,  &c.,  and 
thev  were  adopted. 

The  SECRETARY  of  STATE  being  present, 
and  the  engrossed  Constitution  having  been  signed 
by  the  members  present, 

The  PRESIDENT  delivered  it  into  the  hands 
of  the  Secretary  of  State,  to  be  deposited  in  his 
office  of  record. 

The  PRESIDENT  then  addressed  the  Conven- 
tion, as  follows: — 

Gentlemen : — It  is  highly  gratifying  to  me,  to 
receive  at  the  close  of  our  labors,  the  approbation 
contained  in  the  resolution  you  have  adopted 
unanimously.  With  a  grateful  heart,  I  return  you 
my  sincere  thanks. 

"To  form  a  constitution  of  civil  government, 
which  will  best  secure  the  political  rights  [and 
permanent  welfare  of  a  free  people,  is  a  work  of 
great  magnitude  and  importance.  You  have  de- 
voted yourselves  to  this  momentous  work,  and 
have  discharged  the  high  trust  committed  to  you, 
with  great  zeal  and  fidelity.  I  confidently  hope, 
that  the  constitution  now  "to  be  submitted  to  our 
constituents,  will  be  ratified  by  them,  and  that 
,the  people  of  this  State  will  realize  from  it  the 
most  auspicious  results. 

It  gives  me  great  pleasure,  gentlemen,  to  ac- 
knowledge rny  obligations  to  you  for  the  courtesv 
and  kindness  you  have  at  all  times  extended  to 
me,  and  to  assure  you  of  my  best  wishes  for  your 
prosperity  and  happiness. 

On  motion  of  Mr.  WARD,  the  Convention  then 

Adjourned  sine  die. 


APPENDIX 


REMARKS  of  Mr.  HOFFMAN,  on  the  Finan- 
ces, in  Convention,  Friday  Sept*  11,  1846. 

Mr.  HOFFMAN  said,  commanded  by  the  order 
of  the  Convention  to  make  a  parol  report  without 
writing,  upon  complicated  finances,  I  am  obliged 
to  solicit  the  indulgent  attention  of  the  com- 
mittee. After  so  long  a  stiuggle  tor  public  debt 
and  with  finances  carried  for  long  years  through 
that  struggle,  to  write  such  a  report  would  be 
sufficiently  laborious  and  difficult— but  to  speak 
it,  seems  to  be  a  duty  never  before  imposed  on  any 
one.  I  do  not  advert  to  these  circumstances  to 
complain,  bu'_  to  show  some  ground  lor  an  indul- 
gent hearing,  while  I  endeavor  to  treat,  not  the  first 
section  only,  but  the  whole  subject  of  our  debts 
and  the  means  of  their  extinction. 

In  the  Legislature,  and  again  in  this  Conven- 
tion, complaint  has  been  repeatedly  made  that  the 
public  accounts  are  complicated  and  obscure.  The 
real  complaint  should  be  that  our  debts  and  deal- 
ings are  great  and  multifarious.  The  public  ac- 
counts of  these  are  kept  with  the  greatest  simpli- 
city that  can  possibly  state  them  with  fairness.  No 
merchant,  mechanic,  or  farmer,  can  keep  his  own 
with  more  simplicity.  To  make  them  useful,  he 
must  make  them  show  his  income  and  expenses 
with  each  of  his  adventures,  jobs,  fields  and  crops, 
and  the  united  results  of  all  his  operations.  So 
the  State  must  keep  an  account  of  its  revenue 
and  expenses  in  each  department  of  the  public 
service,  and  with  each  of  its  canals — and  show  the 
yearly  result  of  all  its  operations,  including  its 
large  and  multifarious  debt,  absolute  and  contin- 
gent. In  the  introduction  of  the  Finance  Report 
of  1842,  is  a  brief  and  explicit  explanation  of  the 
manner  in  which  the  public  accounts  are  kepi, 
yearly  closed,  and  reported — which  it  will  be 
found  difficult  to  misunderstand.  In  truth,  the  pub- 
lic accounts  are  admirably  kept  to  answer  the  de. 
signaled  specific  purposes  of  the  government.  If 
a  call  be  made  for  information  pjj  principles  con- 
formable to  the  arrangement  of  the  accounts  in  the 
public  offices,  the  answer  can  be  made  speedily, 
arid  in  the  most  satisfactory  manner.  But  when 
the  call  of  either  house  or  of  the  Convention  re- 
quires a  new  account  to  be  made  and  stated, —  the 
accounts  and  vouchers  must  be  reviewed  perhaps 
for  a  long  series  of  years — the  labor  must  be  great, 
there  is  danger  of  error,  and  delay  is  inevitable. — 


The  committee,  therefore,  endeavored  to  shape 
the  call  ordered  by  the  Convention,  so  as  to  make 
the  answer  easy  and  correct,  and  to  afford  the  Con- 
vention the  largest  practicable  results  of  past  ex- 
perience in  the  branches  of  the  public  service  to 
be  considered,  and  as  free  as  possible  from  all 
mere  estimates  and  opinions.  They  desired  to  give 
the  practical  facts  of  the  past  as  the  best  means  to 
judge  of  the  future.  These  are  fully,  correctly 
and  clearly  stated  in  Convention  document  No. 
47  and  its  tables.  Painful  as  it  may  be  to  attend 
to  these  dry,  cold  details,  I  must  ask  it  while  I  at- 
tempt — what  no  one  was  ever  before  required  to 
do — to  make  a  parol  report,  without  writing,  on  a 
vast  debt,accurnulated  in'long  years,  under  systems 
of  complicated  and  varied  finance.  By  following 
me  through  the  tables  and  reports,  members  will 
find  it  possible  to  understand  me  correctly.  With- 
out that  labor  on  their  part,  I  must  despair  of  ma- 
king myself  intelligible  to  them. 

Before  we  proceed  to  consider  what  our  present 

debt  is,  it  may  be  well  to  ascertain  what  it  was  in 

April,    1842,   that   we  may   see  how  much  it  has 

been  reduced  by  the   system  of  payment   adopted 

in  that  year.     A  full   explanation   on  this  part  of 

our  inquiry  will  be  found  in   Convention  doc.  No. 

47,  p.  4  and  5 — a  part  of  which  I  will  read — p.  5. 

Below  is  shown  in  the  first  column   the   several 

items  of  debt  as  given  on  the  7th  of  Feb.,  1842, 

in  table  F — and  in  the  second  column  as  it  has 

since   been  ascertained  to  have  existed  at  that 

period,  say  on  the  1st  of  April,  1842,  viz: 

As  shown  in  Ascertained 

table  F.  Feb.  debt  as  ot  April 

7,  1342.  1, 1842. 

"Canal  debt,                  $18,65601172  $21,179,01981 

"  Contingent  debt,              5,235,70000  1,720,00000 

"Treasury  debt,                 1,872,87892  6,383,57892 

$25,764,590  64  $23,287,598  73'' 
The  causes  of  these  changes  is  in  part  explained 
on  pages  3  and  4  and  c  mpletely  in  the  paragraph 
which  follows  the  one  1  have  just  read.  The  Re- 
port then  proceeds,  p.  5: — "The  whole  debt  at 
•«  the  time  the  suspension  law  passed,  instead  ofbe- 
;t  ing  $25,764,590  64,  as  was  then  supposed,  actu- 
ally amounted  at  that  time,  as  since  ascertained, 
<:  to  $28, 237,598  73— without  including  the  sum 
"  which  has  since  been  paid  to  canal  contractor*, 
"growing  out  of  the  suspension  law."  These  un- 
earned profits  paid  to  contractors  amount  to  $409,. 


1084 


641  95 — including  large  sums  allowed  to  contrac- 
t  >r.s  under  the  act  of  1839,  lor  changing  some  struc- 
tures on  the  Genesee  valley  can^l,  a$  appears  from 
the  Com.Uroller's  report,  Assembly  doc.  Is46 — 
N>  25,  p.  17. 

What  was  our  present  debt  on  the  first  day  oi 


June,  18-ld,  when  the  Convention 


Beyond 


our  passive  debt  the  answer  to  this  inquiry  will  be 
round  in  the  Convention  doc.  No.  47.  The  pas- 
sive debt  consists  of  the  U.  S.  deposite  fund'  oi  $4,- 
014,520  71.  In  the  act  of  congress  which  author- 
ized the  deposite,  the  Sfate  was  required  to  pledge 
its  faith  lor  its  return.  In  the  act  of  the  legisla- 
ture which  accepted  the  deposile,  thid  pledge  was 
made  in  the  most  explicit  manner,  and  your  pub- 
lic officer,  in  the  receipt  he  gave  for  the  money  in 
pursuance  of  law,  in  express  terms  pledged  the 
public  faith  of  the  Slate  lor  its  safe  keeping  and 
return.  It  is  therefore  a  most  sacred  debt,  made 
doubly  sacred  because  our  pledge  is  to  the  govern, 
ment  of  o  a  own  choice.  The  net  revenue  fiom 
this  money  is  by  law  devoted  to  the  purposes  ol 
education — that  most  absolute  necessary  of  life — 
and  the  money  has  been  loaned  on  bond  and  mort- 
gage, according  to  a  law  that  requires  all  losses  of 
the  fund  to  be  immediately  supplied  out  of  the  re- 
venue. So  far  this  act  has  been  carefully  observed 
and  the  fund  kept  good,  and  I  suppose  it  always 
will  be,  so  long  as  men  have  any  regard  to  honor, 
honesty  or  good  faith.  The  securities  being  thus 
made  perfectly  good,  the  bonds  and  mortgages  may 
be  justly  deemed  sufficient  to  satisfy  any  possible 
claim  the  federal  government  can  make  for  these 
moneys;  and  I  shall  therefore  take  no  further  no- 
tice of  this  passive  debt. 

The  active  debt  of  the  State,  direct  and  contin- 
gent, on  the  1st  of  June,  1S46,  will  be  found  at.  p. 
8  of  the  doc.  No.  47.  The  interest  computed  is 
according  to  the  rates  fixed  on  the  stocks  and 
brought  down  to  the  time  the  stocks  are  respec. 
lively  payable;  and  on  that  small  part  of  the  gen- 
eral tund  debt  for  which  there  are  no  stocks — the 
interest  is  calculated  at  the  rates  usual  for  these 
moneys  and  down  to  the  period  indicated  in  the 
report.  The  report  and  the  tables  ail  s'ate  the 
debt  as  it  stood  on  the  first  day  of  June.  For  this 
there  are  several  conclusive  reasons.  The  Ccn- 
vention  met  on  that  day— the  call  for  the  report 
was  made  in  June,  and  though  the  first  of  June  is 
not  as  good  a  season  to  ascertain  the  money  on 
hand  as  a  quarter  day  or  the  close  of  the  fiscal 
year,  yet  the  day  had  gone  by  and  an  examination 
of  the  books  would  show  with  reasonable  certainly 
what  these  funds  were,  and  their  worth.  The  com- 
missioners of  the  canal  fund  have  a  heavy  debt  to 
manage — with  large  sums  to  be  paid  for  principal 
and  interest;  as  well  as  the  duty  of  preserving  the 
public  works  in  the  most,  useful  condition,  the 
yearly  expenditure  on  which  is  some  $  GOO  000, 
and  where  from  accidents  or  disasters,  large 
expenditures  may  suddenly  become  ine/ilable. — 
It  was  seen  that  the  funds  on  hand  on  the  first 
of  June  would  leave  in  their  hands  the  means 
necessary  to  make  these  operations  safe — say  some 
quarter  of  a  million.  A  portion  of  the  canal  debt 
became  payable  on  the  first  of  July,  amounting  in 
interest  and  principal  to  some  $800,000.  To  call 
for  the  account  at  that  time  was  not  only  to  ask  it 
before  it  could  be  in  fact  taken — but  to  ask  it  for  a 
time  when  nothing  available  would  be  left  in  the 


hands  of  the  commissioneis  for  either  the  safe  ma- 
nagement of  the  canal  debt  or  the  secure  operation 
and  maintenance  of  the  canals.  The  first  of  June 
WM  therefore  the  only  safe  or  proper  time  to  fix  on 
for  the  ascertainment  of  the  State  debt  or  the  funds 
on  hand.  No  greater  available  funds  were  then  on 
hand  than  the  interest  of  the  canals  and  the  secu- 
rity of  the  State  credit  required.  All  the  estimates- 
of  interest  have  been  made,  therefore,  with  a  refe- 
rence to  that  date — and  the  debt  ascertained  as  at 
that  time.  In  all  the  tables  the  debt  is  supposed 
to  be  paid  as  soon  as  it  becomes  payable — without 
any  extension  beyond  that  period.  If  in  the  actual 
progress  of  the  debt  it  should  become  necessary  to 
extend  the  period  for  the  payment  of  any  pait  of 
it,  new  interest,  which  I  will  call  extra  interest  on 
such  extension,  must  be  calculated.  Almost  any 
yearly  sum  that  our  revenues  will  permit  us  to  de- 
vote to  the  payment  of  this  debt,  will  leave  some 
portions  of  it  to  be  extended  and  delayed  with 
consequent  additional  or  extra  interest  for  the 
extension. 

On  these  principles  the  State  debt  on  the  first  of 
June,  184b', should  be  thus  stated: 


Canal  debt,  tableB— 2. 
Insolvent  Rail  Roads,  table  C.— 1, 
Solvent.  Bail  Roads,  table  C.— 2. 
General  Fund  debt,  table  D. 


Principal. 
$17516,119  57 
3.515,70'  00 
1,713  000  00 
2,369,849  24 


$•25,114,668  81 
Contract  Interest. 

Canal  debt,  table  B.— 2.  $8  379  838  33 

Insolvent  Rail  Roads,  table  C.— 1.        2,933, 165  37 
Solvent  Bail  Reads,  table  C — 2.  1,001707  50 

General  Fund  debt,  table  D.  b70,292  87 

$13,185,004  07 
Will  re  quirt  for  prompt 

payment. 

Canal  debt,  table  B— 2,  $•25,895  957  90 

Insolvent  Rail  Kosds,  table  C.— 1.         6.448,865  37 
Solvent  Rail  Roads,  table  C.— 2.  2,714  707  50 

General  Fund  debt,  table  I).  i  3  240,142  11 

Total,  principal  and  interest  $38,299672  88 

From  this  statement,  it  is  seen  that  the  princi- 
pal of  this  active  debt,  which  in  April,  1842,  was 
in  fact,  as  since  ascertained,  $25,287,598  73;  has 
by  payment  been  reduced  to  $'25,1 14,668. 81,  show- 
ing payments  for  principal,  exclusive  ot  interest, 
of  $3,173,929.92.  Although  this  reduction  has 
been  made,  yet  it  appears  that  the  contract  inter- 
st  up  to  the  time  the  money  becomes  payable, 
v\\\  be £'13, 185,004,07,  and  that  th\s  reduced  dfbt 
cannot  be  paid  short  of  $ 33,299,672.88.  It  to  this 
we  add  interest  for  extensions  almost  inevitable, 
we  may  deem  ourselves  fortunate  if  this  debt  shall 
be  eventually  paid,  principal  and  interest,  for  for- 
ty millions  of  dollars,  to  which  it  was  at  one  time 
supposed  the  principal  of  our  debt  miyht  safely 
be  extended,  and  its  payment  secured  without  di. 
rect  taxes,  in  ]863. 

Whether  we  regard  thi*  debt  as  it  should  have 
been  stated  in  1842,  at  $28,287,598.73,  or  as  we 
find  it  on  the  first  of  June  last  at  #25, 114,661.81, 
requiring  in  addition  to  that  principal  the  pay- 
ment of  $13,185,004,07  of  interest  before  the  debt 
can  be  extinguished,  and  some  addition  for  inter- 
est on  inevitable  extensions — it  must  be  regarded 
as  a  British  debt,  to  be  paid  by  British  taxation, 
direct  or  indirect,  with  the  misery  inseparable 
from  that  taxation.  It  is  a  solid,  broad  founda- 


1085 


lion  on  which  to  build  perpetual,  endless  debt  and 
taxation — to  wither,  blight  and  blast  every  branch 
of  human  industry.  I  do  not  make  these  remarks 
to  censure  those  who  contracted  the  debt.  They 
may  have  been  mistaken.  We  have,  if  we  will 
apply  them,  the  means  of  payment,  and  if  we  will 
not  apply  them,  because  we  desire  rather  to  spend 
the  money  and  employ  these  means  for  our  own 
wants,  ours  will  not  be  an  error,  but  a  deliberate 
crime,  committed  against  faith  and  obvious  duty. 
In  ]S41,  when  I  came  by  the  sheerest  accident 
into  the  legislature,  it  was  strongly  denied  that 
any  part  of  the  Railroad  debt  ever  could  become  a 
charge  upon  the  treasury.  Charging  these  slocks 
to  the  State  as  part  of  her  debt,  was  denounced  as 
panic  making  and  treasonable.  While  the  con- 
test on  this  point  was  waging,  these  debts  amount- 
ing to  $3,515,700  became  a  charge  on  the  treasu- 
ry, and  settled  the  contest,  that  to  that  amount  at 
least  they  were  to  be  paid  by  the  State.  There  was 
still  left  $1,720,000  of  this  debt  hanging  as  a  con- 
tingent debt  on  the  State,  which  by  a  payment  of 
$7,000  made  by  the  Delaware  and  Hudson  canal 
company,  has  been  reduced  to  $1,713,000,  as  now 
stated  by  the  Comptroller.  In  truth  the  liability 
of  the  State  for  these  stocks,  in  aid  of  incorporated 
companies,  was  always  absolute.  The  only  thing 
contingent  about  these  stocks  was  whether  the 
companies  to  which  the  credit  of  the  State  was 
loaned,  would  redeem  them,  and  thus  save  the 
treasury  from  the  payment  of  them.  Of  the  com- 
panies which  have  as  yet  paid  interest,  two  have 
applied  and  obtained,  one  by  joint  resolution,  and 
the  other  by  law,  some  exemption  from  paying 
in  the  two  per  cent  sinking  fund  required  to  be 
paid  for  the  eventual  redemption  of  the  debt. — 
Others  may  need  the  like  or  greater  relief;  and  as 
such  relief  has  been  given  to  some,  and  the  hea- 
viest of  these  companies  have  become  bankrupt, 
and  left  the  treasury  to  pay  these  debts,  it  seems 
reasonable  to  suppose  that  more  of  this  debt  will 
eventually  fall  upon  the  treasury.  Without  de- 
scending to  invidious  particulars,  I  think  it  prob- 
able that  the  Slate  will  be  obliged  to  pay  some 
$420,000  of  the  principal  of  this  contingent  debt, 
with  interest  for  a  greater  or  less  number  of  years. 
Ifthe  State  shall  escape  from  this  contingent  debt, 
by  the  payment  of  one  million  of  dollars  for  prin- 
cipal and  interest  on  this  part  of  the  deb',  I  shall 
regard  it  as  fortunate.  We  may  do  better — we 
may  do  worse.  Still  as  the  public  officers  do  not 
desire  to  encourage  these  incorporated  companies 
to  becorre  defaulters,  they  treat  the  debt  as  con- 
tingent, and  therefore  usually  omit  this  portion  of 
the  State  debt  ;  but  in  making  a  final  provision  for 
the  State  debt,  it  cannot  be  safely  disregarded. — 
The  provision  to  extinguish  the  general  fund  and 
insolvent  railroad  debt,  should  be  such  as  will  also 
extinguish  any  portion  of  the  contingent  debt  that 
will  probably  become  a  charge  on  the  treasury, 
though  we  cannot  now  fix  with  certainty  the 
amount.  If  this  contingent  debt  to  $874,433  for 
principal  and  interest  shall  become  a  charge  on 


the  treasury,    as  I  think  it  will,   it  will  cost  you 
about  $45,000  for  each  of  the  ensuing  19  years. 

Omitting  then  this  contingent  debt,  the  abso- 
lute debt  of  the  State  will  be  found  in  the  Con- 
vention document  No.  47.  The  Canal  debt  is 
stated  at  page  36,  in  the  table  marked  (B2),  which 
I  will  read: 

(B2) 

CANAL  DEBT. 

Statement  showing  the  amount  of  principal  and 
interest  actually  payable  in  each  year,  as  it  be- 
comes due,  on  the  State  stock  issued  for  the  se- 
veral canals. 


OOGDODODalcCCOCC    I 


.*? 


gg§ 


>fe*  rO 


§S§§ 


o.  Principal 
_—  I  actually 
~g  |  payable. 

§1 


1 8  S!  £  5 


'  SpSSS  2  83gjS  Interest 
~- Seals  «o  I  actually 
*o(a< — i  I  payable. 


i  M  ^-  en  H- 

-(.-»*;, 
'XCCOJr 


Total  Prin- 
cipal and 
Interest. 


The  General  Fund  and  Insolvent  Railroad  debt 
united,  is  stated  at  page  42,  in  table  E,  which  I 
beg  leave  to  read: 


GENERAL  FUND  AND  RAILROAD  DEBT. 
Statement  showing  the  amount  of  principal  and  in- 
terest  payable  in  each  year  on  the  General  Fund 
State  debt,  as  it  becomes  due,  assuming  that  the 
Astor  Stock,  ($561,500,)  and  the  Comptroller's 
bonds  for  loans  from  the  School  Fund  and  the 
Railroad  Sinking  Funds  ($36,395.59,)  will  be 
paid  in  ten  ye^rs;  and  the  principal  of  Indian 
Annuities,  ($122,694.87.)  and  the  balance  due 
the  Specific  Funds,  ($740,151.78,)  will  be  paid 
in  five  years. 


1086 


YEAR. 

Principal  ac- 
tually payable 
in  each  year. 

Interest  actu- 
ally payable 
in  each  year. 

TOTAL. 

1846,  1st  June  to 
Sept.  30th, 
1847,  Sept.  30. 
1848, 
1849         < 

$11,000  00 
13,000  00 
368,107  00 

$131,159  02 
324,479  24 
314,919  06 

$142,159  02 
337,479  24 
633,026  06 

1850         ' 

304  816  39 

1851,        ' 
1852,        « 
1853,        ' 

862,846  65 
467,000  05 

304  816  39 
253,045  60 
225  025  60 

1,167,663  04 
720,045  60 
225  025  60 

1854          ' 

225  025  60 

1855         « 

1856, 

647,895  59 

225,025  60 

872,921  19 

1858,       " 
1859,       « 
1860,      <« 
1861,       «' 
1862,       •• 
1863        '< 

100,000  00 
250,000  00 
350  000  00 
1,500,000  00 
1,000,000  00 

191,936  50 
184,736  50 
172,111  50 
133,476  50 
66,986  50 
14'  486  50 

291,986  50 
434,736  50 
522,111  50 
1,633,476  50 
1,066,986  50 
14  486  60 

1864,       « 
1865,      « 

287,700  00 
28,000  00 

$5,885,549  24 

7,993  25 
1,540  00 

$3,803^458  24 

295,693  25 
29,540  00 

$9,689,007  43 

These  two  debts  united  are  stated  at  page  43,  in 
table  F,  which  I  feel  it  my  duty  to  read  to  the 
Committee: 

(F.  ) 

The  following  statement  embraces  the  debts  of  all 
the  canals,  the  debts  of  the  railroads  which  have 
failed  to  pay  interest,  and  the  debt  of  the  Gene- 
ral Fund,  being  the  aggregate  of  the  direct  debt 
on  which  the  State  is  now  paying  interest.  The 
first  column  shows  the  amount  of  principal  pay- 
able in  each  year ;  second,  the  interest  payable 
in  each  year  on  the  whole  debt;  third,  the  a- 
mount  of  principal  and  interest  payable  in  each 
year,  from  1st  June,  1846,  to  the  maturity  of  the 
stock  or  debt.  This  table  is  a  consolidation  of 
tables  B.  2,  C.  1,  and  D. 


W         "•» 

2*00 


§§ 


; 

>  So 


§: 


J""1  .^  .J"* -^ 


£  8  -  §8    3  3  25  S  S  8  3  £ 


|OO>3 

to  «  w  — 
" 


O~*OO*» 

—  o  —  SB  5» 

~ 


III 

Us 


From  the  table  B  2,  it  is  seen  that  ihe  Canal 
debt  of  $17,516,119,57  will  cost  you  in  interest 
before  it  can  be  paid,  $8,379,838.33,  making  a 
charge  on  your  revenues  of  $25,895,957,90.  The 
table  E  shows  you  that  your  general  fund  debt  is 


$5,885,549,24,  and  that  the  interest  on  it  will  in 
the  period  fixed  for  it»  redemption,  cost  you  $3,- 
803,458,24,  creating  a  charge  on  your  reve- 
nues ot  $9,689,007,48.  The  burthens  of  this  di- 
rect  absolute  debt  united,  are  stated  in  the  table  F, 
principal  $23,401,668,81— contract  interest  $12,- 
183,296,57,  making  a  total  of  $35,584,965,38, 
which  must  be  paid  to  extinguish  the  debt.  This 
calculation  does  not  include  any  portion  of  the 
contingent  debt,  stated  in  table  C  ,1 — C,  2;  nor 
any  thing  for  interest  that  must  be  paid  for  anyex- 
tension  of  time  for  paying  the  absolute  debt. 

In  fixing  a  contribution  to  your  sinking  fund,  if 
you  fix  it  too  small,  and  pay  loo  slow,  you  may 
disgrace  your  sinking  fund  and  the  Stale.  The 
disgrace  will  be  ours,  but  the  injury  will  fall 
mostly  on  our  creditors.  They  expect  not  only 
payment,  but  that  your  credit  in  their  hands  will 
be  maintained.  Their  necessities  frequently  oblige 
them  to  sell,  and  every  reduction  in  the  price 
from  proper  and  adequate  means  to  sustain  your 
credit,  is  a  robbery  on  them. 

It  may  be  said  that  there  were  funds  on  hand  on 
the  first  day  of  June,  (hat  might  be  applied  towards 
the  reduction  of  this  debt.  A  statement  of  these 
and  their  character,  will  be  found  in  the  Conven- 
tion  document  No.  47  :  p.  6. 

•'Available  deposites  in  banks,  $392,854,46  "- 
These  funds  are  good,  and  to  a  small  extent  ex- 
ceed what  is  necessary  to  be  kept  on  hand  at  all 
times  for  the  proper  care  of  the  public  debts  and 
public  works.  The  payments  in  July  consumed 
them  entirely.  The  remainder  of  the  funds  on 
hand  promise  but  little 

Unavailable  deposites  in  banks,  viz: 

Bank  of  Brockport,  •              $3,715  50 

Bank  of  Lyons,  19.11386 

Clinton  County  Bank,  86,200  00 

Lockport  Bank,  29,700  00 

Lockport  Bank  &  Trust  conjp'y.  32,072  31 

Lewis  County  Bank,  20,000  00 

Watervliet  Bank,  42,430  00 

Wayne  County  Bank,  20,912  02 

254,211  69 

The  Canal  Fund  has  also  in 
stocks  issued  for  the  payment 
of  balances  due  on  account  of 
Canal  fund,  money  s  deposited  in 
the  Bank  of  Buffalo,  Commer- 
cial Bank  of  Buffalo,  and  Com- 
mercial Bank  ot  Oswego,  $314,448  0-2 

Total  unavailable  loans  to 

Banks,  $563,659  71 

Loan  to  the  city  of  Albany,  30,000  00 

To  be  raised  under  chap.  326  of 

the  laws  of  1346,  300,000  00 


$1,291,514  17 

Now  looking  at  the  character  of  these  funds, 
they  appear  to  me  to  be  really  "unavailable."  It 
cannot  be  expected  that  the  enumerated  bank- 
rupt banks  will  soon,  if  ever,  pay  the  deposites  en- 
trusted ro  them.  Nor  do  I  regard  as  available  Ihe 
stocks  of  the  Bank  safety  fund,  though  that  fund 
may  redeem  them  at  some  indefinite  but  remote 
period.  The  claim  against  the  city  of  Albany  is 
under  protest,  though  the^city  must  ultimately  pay 
it.  The  $300,000  about  to  be  borrowed  is  destin- 
ed to  pay  arrearages  to  contractors  and  for  land 
damages,  and  can  be  regarded  as  available  for  no 
other  purpose.  These  remarks  dispose  of  all  these 
funds,  and  show  that  the  available  portion  of  them 
are  fairly  needed  as  funds  on  hand.  If  other  por- 
tions shall  prove  available,  then,  and  not  before, 


1087 


they  may  be  employed  to  improve  the  canals.— 
When  available,  the  legisfature  may  appropriate 
them  to  any  canal  purpose.  They  are  certainly 
noi  now  applicable  to  the  payment  of  the  debt, 
nor  should  dependence  be  placed  upon  them  for 
that  purpose. 

Having  thus  briefly  stated  our  debt,  I  will  now 
call  the  attention  of  the  committee  to  the  charges 
against  the  State.  The  first  in  order  is  the  Canal 
current  expenses.  These  are  large  and  will  in- 
crease with  the  increase  of  business  on  the  canals. 
We  shall  hereafter  have  occasion  to  consider  what 
they  probably  will  be  for  a  short  series  of  years. — 
The  charge  next  in  order  is  for  the  payment  of 
the  interest  and  principal  of  the  Canal  debt-  We 
must  also  prepare  to  meet  the  interest  and  redeem 
the  principal  ot  the  General  lund,  and  Insolvent 
Railroad  debt,  with  such  portion  of  the  contingent 
debt  as  may  tall  on  the  treasury.  In  addition  to 
these  three  charges,  we  must  meet  the  State  cur- 
rent expenses,  which  have  increased  rapidly  for 
many  years,  arid  which  it  will  be  difficult  essen- 
tially to  reduce. 

Then  what  are  our  ways  and  means — our  re- 
venues to  meet  these  charges  ? 

Some  effort  has  been  made  to  tax  the  railroads 
on  their  transpoitation,  as  if  the  company  paid 
this  class  of  taxes,  and  not  the  persons  who  con- 
sume the  articles  transported.  The  legislature 
have  made  some  progress  in  this  Spanish  Bourbon 
legislation  of  pensioning  the  government  on  trade 
and  travel.  We  would  make  internal  improve- 
ments to  cheapen  transportation,  and  tax  the  trans- 
portation to  make  it  dear.  Supporting  a  govern 
ment  by  tax  or,  trade  and  travel  appears  to  me 
worse  than  the  old  repudiated  practice  of  asking 
a  bonus  fof  a  bank  charter.  If  we  attempt  to  ex- 
tend and  fix  this  system  of  taxes  on  transportation 
— if  we  pursue  the  course  of  taxing  transuortation 
on  roads  not  made  at  the  expense  of  the  State,  we 
shall  make  the  government  a  real  highwayman — 
odious,  and  an  oppressor.  Such  acourse  may, like 
any  other  abuse,  answer  for  a  time — but  it  must 
soon  fail  from  surrounding  circumstances.  Trade, 
travel  and  transportation  will  be  driven  from  us, 
and  our  industry  must;  languish  for  want  of  the  re~ 
wards  which  untaxed  transportation  and  trade  can 
alone  secure  to  labor.  We  can  do  ouiselves  an  in- 
jury by  this  sort  of  taxation  ;  but  there  are  so  many 
rival  routes,  and  there  soon  will  be  so  many  more 
which  will  not  be  taxed,  that  to  secure  trade  and 
travel  we  shall  be  obliged  to  act  in  this  whole 
matter  with  liberality  and  justice. 

I  might,  dismiss  this  branch  of  the  subject,  but 
I  never  can  consent  that  the  current  expenses  of 
the  Strite,  and  all  its  great  expenditures,  should  be 
charged  on  the  right  of  way,  which  the  sovereign 
should  hold,  not  as  property  for  revenue,  but  in 
trust  tor  the  million — to  promote  travel,  transpor- 
tation ancl  commerce.  To  thn  extent  that  the  Slate 
makes  advances  and  incurs  a  reasonable  risk  in 
nuking  a  road  or  canal,  the  State  from  the  tolls 
shouldjully  indemnify  iisi.-lf  for  those  expenses 
and  that  risk.  But  when  the  cifizen,  at  his  own 
expense,  makes  the  road  or  canal,  I  can  think  of 
no  worse  or  more  oppressive  course  than  the 
Bourbon  one,  which  we  have  commenced,  of  tax- 
ing the  transportation  on  it  for  the  benefit  of  the 
State.  The  revenues  will  be  collected  in  small 
sums  from  every  body  in  every  quarter,  and  no 


one  can  afford  to  resist  or  make  effectual  com- 
plaint. But  the  monies  when  they  go  out  of  the 
treasury,  will  go  in  large  sums  for  families,  inter- 
ests or  localities — to  reward  followers,  and  pur- 
chase supporters.  Such  a  course  must  engender 
the  worst  oppression  and  the  worst  corruptions, 
and  soon  realize  the  worst  vices  of  the  worst  go- 
vernments—Taxation on  all  we  consume — whit  h 
will  allow  nothing  to  move  to  or  from  the  market 
without  tribute  to  the  State. 

The  salt  and  auction  taxes  resemble  in  charac- 
ter and  impolicy  the  tax  on  transportation;  and  I 
think  you  will  not  long  be  able  to  maintain  either. 
Of  the  two  last,  I  have  given  my  views  somewhat 
at  large  on  former  occasions.  They  are  both 
strictly  local  taxes,  and  it  is  as  unjust  to  defray  a 
general  expense  by  such  a  local  tax,  as  it  is  impo- 
litic and  dangerous  to  make  expenditures  for  local 
improvements  out  of  a  general  revenue.  To  he 
safe,  local  expenditures  must  be  met  by  locil 
taxes.  To  be  just,  general  expenses  should  be 
paid  from  general  revenues.  If  a  peculiar  tax  CED 
be  collected  in  a  locality,  the  peculiar  circum- 
stances which  enable  it  to  be  raised  will  expose 
that  locality  to  peculiar  charges,  which  render 
such  a  tax  necessary  to  be  expended  where  it  is 
collected.  This  is  certainly  true  of  the  auction 
tax. 

The  salt  tax  has  already  been  reduced  to  one 
cent  a  bushel.  If  then  4,000,000  of  bushels  shall 
be  manufactured  yearly,  the  gross  revenue  will  be 
$40,000;  and  the  yearly  expense  has  been  about 
$130,000 — leaving  a  nett  revenue  of  only  about 
$10,000.  These  expenses  may  perhaps  be  some- 
what  reduced,  but  there  is  quite  as  much  danger 
of  their  increase  as  hope  of  their  reduction ;  and  I 
can  scarcely  expect  to  see  them  brought  below 
$26,000.  For  the  great  State  of  New  York  to 
cling  to  such  a  tax,  looks  as  if  it  were  driven  to 
the  last  extremity  ;  and  were  acting  like  a  broken 
down  merchant,  endeavoring  to  live  out  of  his  old 
book  accounts  trumped  up  against.old  customers, 
with  whom  he  had  long  before  fully  settled.  But 
sir,  if  we  will  cling  to  this  tax,  we  cannot  in. 
crease  it,  and  it  will  soon  escape  our  grasp.  By 
the  St.  Lawrence,  salt  has  reached  Lake  Cham- 
plain,  and  the  federal  tax  on  it  once  reduced,  it 
will  come  freely,  to  supply  not  only  that  lake,  but 
the  countries  bordering  on  the  whole  extent  of 
the  great  lakes  ;  and  by  the  Hudson,  will  reach 
Troy,  and  the  interior  connected  with  the  Lakes, 
and  the  Hudson.  Our  salt  tax  therefore  is  sub- 
stantially gone  forever. 

Then  comes  the  auction  tax  almost  exclusively 
collected  in  the  city  of  New  York.  It  is  equally 
unjust  and  unwise.  It  comes  in  direct  opposition 
to  trade.  It  is  a  tax  against  trade.  It  declares 
that  you  must  not  sell  in  the  manner  in  which 
trade  finds  it  best  to  make  its  sales.  Hitherto 
about  $32,000  of  this  tax  has  gone  for  the  support 
of  some  charities  located  in  that  city.  At  the 
last  session  this  tax  was  reduced  ;  and  you  cannot 
long  continue  it.  If  other  rival  cities  have  no 
such  tax,  it  can  and  will  be  evaded.  In  truth 
your  tax  is  a  bounty  to  invite  evasion.  If  the  tax 
presses  on  the  business,  instead  of  carrying  his 
whole  stock  to  the  auction,  the  seller  may  send 
there  fair  samples  of  the  whole— a  fifth  or  a  tenth 
— and  sell  them  ;  thus  fix  the  price,  and  then  say 
to  buyers,  you  can  take  Btocks  from  my  store  at 


1088 


auction  price,  less  the  tax.  It  your  tax  is  oppies 
give,  auctions  may  be  opened  in  other  states  where 
your  tax  cannot  reach  the  goods.  You  may  em 
barrass  or  drive  off  trade  by  this  tax,  but  circum 
stances  will  not  long  permit  you  to  sustain  it  as 
available  revenue.  I  do  not  regret  that  you  wil 
soon  be  obliged  to  abandon  these  two  impolitic 
taxes  ;  and  to  my  mind,  I  must  confess  that  the 
salt  and  auction  taxes  look  somewhat  disreputa- 
ble. Reduced  as  they  are,  we  cannot  safely  esti- 
mate their  proceeds  at  more  than  some  $100,000 
a  year  ;  and  disgraceful  as  they  are,  they  mus 
soon  go  down  to  the  tomb  and  shrivel  into  no. 
thing. 

Here  then  our  state  ways  and  means  are  reduc 
ed  to  canal  tolls  on  the  one  hand,  and  direct  tax- 
es on  the  other.  What  we  do  not  take  from  ca- 
nal tolls,  we  must  obtain  by  direct  taxes.  Our  si- 
lence as  to  direct  taxes  is  of  no  avail.  We  can- 
not always  continue  to  borrow  and  not  pay  ;  we 
cannot  adopt  the  infamous  course  of  repudiation 
by  neglecting  to  pay.  We  must  meet  our  state 
expenses  and  debts,  by  canal  tolls  or  direct  taxes, 
or  both  ;  and  what  we  do  not  realize  from  tolls, 
must,  whether  we  say  it  or  not,  be  wrung  from 
our  people  by  direct  taxes.  We  cannot  deny,  we 
ought  not  to  conceal  the  fact. 

These  charges  divide  themselves  into  four  kinds. 
First  our  canal  expenses,  already  very  large,  and 
to  increase  with  time  and  the  increase  of  business 
on  the  canals.  Second,  our  large  canal  debt  to 
which  I  shall  have  further  occasion  to  call  the 
attention  of  the  committe,  and  on  which  every 
delay  of  payment  must  occasion  additional  inter- 
est.  Third,  our  general  fund  debts,  including  that 
for  aid  given  to  companies  already  insolvent  as 
well  as  any  part  of  the  contingent  debt  before 
spoken  of.  which  may  fall  upon  the  treasury. — 
On  these  perhaps  I  have  said  enough  to  show 
their  character  and  probable  amount  ;  but  I  must 
add  that  every  delay  to  meet  them  early,  must 
add  proportionably  for  extra  interest.  Fourth, 
the  state  current  expenses,  already  large  and  to  in- 
crease with  our  population.  To  these  I  shall  have 
occasion  hereafter  to  call  special  attention. 

To  pay  your  debts  and  to  meet  your  canal  and 
state  current  expenses  will  require  about  $3,200,- 
000  a  year,  nor  can  you  in  my  opinion  reduce 
these  charges  as  low  as  three  millions  a  year. — 
Whatever  you  do  not  take  from  canal  tolls  to 
meet  these  charges,  you  must  take  from  direct 
taxes.  You  may  to  some  extent  delay  the  pay- 
ment of  your  debt  by  a  guilty  breach  of  the 
public  faith — or  by  the  British  system  of  funding 
the  debt,  paying  interest  and  maidngthe  debt  and 
drain  for  interest,  perpetual — a  system,  if  less  base 
yet  more  cruel  than  repudiation.  Repudiation 
would  be  a  bold  stand  in  infamy,  but  this  funding 
system  would  fasten  on  the  limbs  of  your  children 
the  withering,  blasting  effects  of  British  eternal 
debt  and  taxation.  Payment,  prompt  payment — 
payment  with  the  least  interest  is  your  only  course, 
and  what  we  do  not  pay  with  canal  tolls  we  must 
pay  by  direct  taxes.  You  cannot  well  live  on  the 
luture  as  the  past  has  foraged  on  you. 

It  therefore,  becomes  proper  for  us  to  consider 
briefly,  the  general  circumstances  applicable  to 
our  future  canal  revenues.  If  some  of  these  look 
to  a  probable  large  increase,  others  may  incline  us 


to  believe  that  sooner  <*r  later  we  must  adopt  con- 
siderable reductions  on  the  rates  of  toll. 

Our  canals  have  been  in  operation  since  the 
spring  of  1826,  and  the  competition  of  carrier 
against  carrier,  shows  what  competition  can  do. 
Without  going  into  detail,  it  seems  to  me  right  to 
say  that  taking  the  up  and  down  freights  together, 
competition  has  reduced  the  share  which  the  car- 
rier retains  for  himself,  from  what  was  two  dol- 
lars, to  one,  or  less  than  one.  What  was  $3,  for 
him,  is  certainly  now  less  than  $2,  and  I  believe 
it  does  not  exceed  $1,50;  and  yet  the  full  force 
of  competition  has  not  probably  been  felt.  For- 
merly the  up  freights  made  a  fair  yield  to  ths 
carrier  ;  now  they  are  much  reduced,  and  yield 
him  little  over  tolls.  Will  not  competition  on 
all  other  routes  have  a  like  effect  in  reducing 
freights  ?  On  the  rivers  of  the  south  west,  on 
their  main  streams,  the  competition  has  been  re- 
spectable,  but  by  no  means  equal  to  the  competi- 
tion on  our  canals  and  the  Hudson  ;  while  on  all 
the  upper  portions  of  those  rivers,  the  competi- 
tion has  been  new.  imperfect  and  feeble,  and  will 
long  and  rapidiy  increase.  In  5, 10,  or  ISyeaas  the 
increase  of  competition  in  that  quarter  will  proba- 
bly do  as  much  to  reduce  freights  there,  as  it  has 
done  here,  in  the  like  past  period  of  years.  The 
same  thing  is  true  with  regard  to  the  Pennsylva- 
nia route.  The  competition  has  been  feeble — 
time  will  make  it  active,  strong  and  vigorous,  and 
it  will  force  down  the  freights  there,  as  it  has 
done  with  us.  Competition, hitherto  feeble  on  the 
Ohio  routes,  will  in  due  time  become  active  and 
efficient  ;  and  it  will  play  for  us,  or  against  us, 
accerding  as  the  season  and  our  rates  of  toll  shall 
affect  the  choice  of  the  merchants  between  our 
route  and  the  great  south  western  rivers,where  we 
must  expect  large  reductions  in  charges.  The 
new  works  at  the  west,  too,  will  come  in  to  play 
a  part  in  thi&  competition  and  reduce  prices  still 
"urther. 

I  must  not  in  this  enumeration  omit  the  great 
works  from  the  tide  waters  of  the  St.  Lawrene 
o  the  extreme  west  of  the  great  lakes,  some  1300 
miles  of  ship  navigation.  Of  the  full  size  of  the 
vessels  that  can  pass  this  inland  navigation,  I  can 
not  speak  with  certainty,  but  I  find  in  the  report 
of  the  officer  in  charge  of  these  public  works  that 
here  were  three  propellers  on  lake  Erie,  the  ag- 
gregate tonnage  oi  which  is  1900,  which  would 
be  able  to  reach  the  tide,  on  completing  certain 
of  the  new  locks  on  the  Welland  Canal.  The 
works  are  now,  I  believe,  completed,  or  soon  will 

;  and  it  appears  from  this  fact,  that  vessels  of 
600  tons  can  pass  from  Mon'treal  to  Chicago. — 
This  route  is  so  entirely  new,  that  competition 
las  there  yet  to  do  its  whole  work  in  reducing 
freights.  When,  or  how  far  it  will  reduce  them, 
cannot  now  well  be  foreseen  ;  but  that  it  will  do 
so  largely,  can  scarcely  be  doubted.  Indeed  this 
route  appears  to  have  drawn  an  unusual  quantity 
of  produce  this  season  to  Montreal  and  Quebec, 
^or,  without  any  unusual  deficiency  in  the  ship- 
ing  at  these  ports,  the  price  of  freights  has  risen 
o  much  as  to  be  the  subject  of  complaint.  From 
his,  I  infer  that  the  Canada  route  has  not  been 
die.  Another  year  may  send  more  shipping  to 
hese  ports,  and  thus  reduce  their  charges.  Be- 
ides  the  reductions  which  a  growing  competition 
an  effect  on  that  route,  it  is  evident,  that  the 


1089 


rates  ot  toll  there,  are  such  as  will  well  bear  large 
redactions. 

It  .-eern-i  to  me,  therefore,  entirely  probable, 
thar  a  great  reduction  will  sooner  01  later  be  ef 
lect<  station  on  all  these  rival  routes, 

not  only  by  the  competition  between  carrier  and 
carrier  on  the  same  route,  but  also  by  the  reduc- 
tion of  tolls  on  these  several  routes."  We  have 
several  times  set  the  example^f  reducing  tolls — 
and  it  will  be  earnestly  followed  by  all  our  com- 
petitors for  the  trade  to  and  from  the  great  west. 
The  prize  is  great  and  the  struggle  will  be  earnest 
as  well  on  the  part  of  the  routes  reducing  tolls  as 
on  the  part  of  the  carriers  leducing  their  charges; 
and  in  these  reductions,  the  newest  and  least  im- 
proved routes  on  which  the  least  reductions  have 
as  yet  been  made,  can  go  farthest.  This  com- 
petitio'n  of  rival  routes  and  of  the  carriers  on 
them,  will  yet  effect  enormous  reductions  in  the 
cost  of  transpoitation. 

The  great  west  will  enrich  us  it  is  true,  ir  we 
do  not  forbi'i  it  by  our  rates  of  toll.  From  the 
vast  extent  of  tha?  new  country,  fioin  the  fertility 
of  its  unexhausted  soil,  and  the  rapid  increase  ot 
its  population,  well  may  we  jusily  expect  a  great 
increase  in  the  products  to  be  brought  and  the 
pav  to  be  returned;  but  it  vse  keep  up  our  high 
rates  of  toll,  or  inctease  our  debt  and  makethere- 
duction  ot  our  rates  of  toll  impracticable,  we 
shall  drive  those  products  to  other  less  taxed 
routes,  more  eflvctually  than  by  any  other  means 
in  our  power.  The  high  rates  of  toll  is  our  great- 
est enemy  in  this  competition  for  revenues  and 
transportation.  The  debt  which  forces  us  to  im- 
pose tnese  rates  rf  toll  is  our  greatest  misfortune 
— worse  than  if  the  waters  of  our  canals  were 
solidified  info  rock — because  then  less  than  this 
canal  debt  ot  #17,000,000,  to  say  nothing  of  our 
other  debts  and  expenses,  would  remove  the  rock 
and  clear  the  passage. 

But,  sir,  this  competition  does  not  end  with 
rival  canals.  Hitherto  railroads  have  been  con- 
structed almost  exclusively  for  the  accommodation 
of  travel  upon  the  principle  of  flying — and  we 
c.-tnnot  sately  determine  how  tar  they  can  be  made 
useful  insuuments  for  the  transportation  of  pro- 
perty. By  a  proper  location  and  use,  they  mav, 
and  doubtless  will  be  largely  improved  for  this 
purpose,  and  existing  circumstances  show  us, 
that  they  vv  II  be  constructed  and  fully  tiied. 

Finished  gouds  for  the  spring  consumption, 
reach  the  great  Atlantic  cities,  in  Januaty, Febru- 
ary and  March,  fiom  abroad — the  return  pay  for 
our  exports.  Our  own  manufacturers  must  bring 
i  his  into  the  market  at  the  same  time,  or  wait  for 
/  a  purchaser  for  consumption  until  the  fall  sales, 
i  M  line  to  Carolina,  a  country,  made  some 
100  or  150  miles  wide  by  short  railroads  to  the 
water,  can  reach  the  great  cities  every  week  of 
the  winter,  to  purchase  and  sell  ;  that  district  in- 
cludes the  great  cities, a  vast  popul  Uiori.and  a  laage 
part  of  our  manufactuiers  These  therefore  have 
a  free  and  full  use  of  the  markets  in  winter,  to 
buy  what  they  need,  and  sell  what  they  make.  But 
in  our  vast  interior,  whatever  other  advantages 
may  be  enjoyed,  the  manufacturer  must  purchase 
in  autumn — risk  the  changes  of  the  market  during 
that  long  period,  and  it  dependant  on  a  canal, 
frozen  up  five  months  in  the  winter,  he  cannot  get 
his  goods  into  the  market,  until  after  the  traders 

111 


have  made  their  purchases  for  thespnng  business. 
He  must  in  effect,  buy  in  autumn,  and  sell  for  the 
next  autumn  business,  or  all  his  VA heels,  spindles, 
and  machirmy  nns'  ies!  from  October  uutii  May. 
This  is  a  great,  and  he  regards  it  as  ao  iasuppc  rtu- 
ble  misfortune,  and  will  theretore,  join  with  all 
others  who  desire  a  railroad  to  open  (he  way  iu 
winter,  10  and  from  the  markets.  As  some  of  the 
cities  have  railroads,  which  open  far  into  the 
country,  and  enable  their  merchants  in  winter,  to 
supply  their  country  customers,  other  cities  must 
secure  the  like  communications  with  the  country, 
or  their  merchants  will  feel,  and  fiud  that  trade 
leaves  them,  and  goes  to  those  favored  with  rail 
roads  operating  through  the  winter.  The  mer- 
chant will  therefore  be  obliged  to  join  in  the  ef- 
fort to  multiply  and  extend  the  transpoitation  by 
railroads.  Since  large  agricultuial  districts  ac- 
c  immodated  by  these  roads,  made  and  making, 
will  possess  a  monopoly  of  the  market  in  winter  ; 
all  other  agricultural  districts  must  seek  the  like 
facilities  to  reach  that  market.  At  the  southwest 
the  great  rivers  are  open  in  the  winter,  to  a  certain 
point.  At  that  point,  a  railroad  may  be  used  ia 
winter,  extending  into  the  country,  and  thus  in 
effect  extending  the  unfrozen  rivers  in  winter, 
when  it  is  safe  to  transport  bread  stuffs  and  butch- 
ers meat,  through  the  Mississippi  and  the  Guiph, 
to  the  Atlantic  cities,  the  West  indies,  Brazil  or 
Europe. 

From  all  these  causes,  I  infer,  that  it  is  quite 
certain  that  railroads  will  be  stretched  from  tiie 
Atlantic  to  the  Lakes,  as  well  for  the  transporta- 
tion of  freight,  as  of  passengers.  The  change  has 
in  part  taken  place,  and  soon  these  works  will  be 
constructed,  and  their  power  of  competition  will 
be  tried. 

One  further  view  of  the  subject.  Suppose  all 
these  desires  do  make  these  railroads,  can  they 
compete  with  the  canals,  for  transportation  ?  I 
have  stated  belore,  that  since  they  have  all  been 
made  heretofore  for  FLYING,  i'  is  very  uncertain 
how  useful  tney  may  be  made  for  the  transporta- 
tion of  property.  But  there  are  some  examples 
which  may  serve  to  show  us  what  they  can  do, 
and  I  may  add,  what  they  must  do,  if  they  once 
get  made.  The  railroad  from  hereto  Boston,  over 
as  ungainly  a  route  as  could  well  be  selected, 
either  for  its  grade  or  its  operation,  and  wnich  has 
fo  war  against  the  open  Hudson,  and  against  the 
open  coast — what  does  it  do  ?  It  is  made,  and  like 
all  things  which  have  a  being,  it  must  stru^yie 
for  existence.  On  that  hilly  route  of  200  miles, 
it  picks  up  its  barrel  of flour  at  the  dock  here  across 
the  river,  and  drags  it  over  the  mountains  at,d 
through  the  country,  and  delivers  it  at  the  mer- 
chants store  in  B'>s'on  lor  25  cents.  The  Hudson 
— than  which  a  better  canal  does  not  exist  on  the 
whole  earth — if  put  under  such  tolls  as  are  put 
on  the  Erie  canal,  could  not  carry  is  cheap  tor 
130  miles,  as  can  the  Boston  rail  road  for  2lO 
miles-  I  mention  this  to  show  you  what  is  meai  t 
by  tolls.  Applying  to  the  Hudson  such  a  rate  tf 
toll  as  you  must  necessarily  apply  to  the  Erie  ca- 
nal, you  would  drive  traffic  and  trade  to  Boston. 
In  less  than  twenty  years,  the  same  question  may 
arise  in  respect  to  the  Erie  eanal  ;  for  it  cannot  te 
denied  that  owing  to  the  smallness  of  the  grades 
of  the  railroads  Irom  Buffalo  to  this  city,  if  the 
road  were'  as  good  as  the  one  from  here  to  Boston 


1090 


they  could  transport  flour  cheaper  tor  360  miles 
than  it  can  be  done  for  the  200  miles  from  here  to 
Boston.  It  would  be  one  almost  continuous  level 
grade,  with  scarcely  even  a  sharp  curve.  The 
rail  road  from  Ogderisburgh  to  Lake  Champlain, 
occupies  at  leasi  as  favorable  a  position  as  the 
road  from  here  to  Boston.  I  say  then,  that  from 
the  examples  of  the  Boston  road,  these  roads,  if 
they  existed,  could  strongly  compete  with  the 
Erie  canal,  loaded  and  burdened  as  it  is,  with  its 
debts  and  tolls.  We  may  through  the  power  of 
legislation,  maintain  our  monopoly,  may  prevent 
the  Ojfdensburgh  rail  road,  and  the  Erie  rail  road 
from  carrying  freight.  Legislation  may  block  up 
the  passage  from  here  to  Butialo — it  has  the  power 
to  do  so.  But  that  power  is  the  immoral  power 
of  self-destruction — a  horrible,  impossible  power. 
You  could  only  turn  the  trade  by  all  the  varied 
channels  to  winch  I  have  alluded,  to  the  south- 
west in  winter,  and  to  the  north  and  south  in 
summer.  That  is  all  you  could  do.  You  can 
destroy  commerce,  and  with  that,  destroy  the  re 
wards  of  industry,  but  you  cannot  by  that  destruc- 
tion secure  your  revenues.  You  must  be  just  and 
wise — you  must  deal  with  your  neighbors  as  you 
desire  to  be  dealt  with — you  must  afford  for  them 
a  better  and  cheaper  way,  and  must  act  towards 
them  in  kindness  and  conciliation. 

Viewing  this  matter  altogether,  how  does  it 
'  stand  in  the  range  of  probabilities  ?  Why  fairly 
and  rightfully  thus  :  That  for  some  period 
to  [come,  say  every  eight  or  ten  years,  your 
tolls  on  the  canals,  in.iy  be  sustained  at  about 
their  present  rales,  and  your  revenues  in- 
creased as  they  have  been,  and  that  in  ten  or  fif- 
teen years,  you  will  find  them  beginning  to  cul- 
minate, unless  you  reduce  your  rates  of  toll.  In 
ten  or  fifteen  years,  with  the  competition  and  the 
reduction  of  tolls  on  other  routes — the  introduc- 
tion of  new  rail  roads,  with  the  present,  compet- 
ing for  bread,  and  each  well  knowing  that  five 
per  cent,  is  better  than  four,  that  four  is  belter 
than  three,three  better  than  two.and  two  a  hundred 
per  cent,  better  than  one;  knowing  this,  and  look- 
ing back  and  seeing  how  much  ten  years  experi- 
ence have  aided  to  improve  rail  roads,  who  can 
doubt  that  the  competition  will  be  severely  ielt- 
These  roads  when  they  once  exist,  must  like  all 
other  things,  struggle  to  obtain  a  living  ;  for  these 
roads  have  living  representatives,  men  wanting 
bread,  clothing  and  lodging  ;  and  they  will  com- 
pete with  industry,  economy  and  iron  perseve- 
rance for  the  means  of  existence.  I  may  be  mis- 
taken in  i he  period  when  the  competition  will  be 
felt,  but  I  cannot  disguise  the  conviction  of  my 
own  mind,  that  it  certainly  will  be  fell  in  twenty 
years,  I  believe  it  will  strongly  in  filteen,  and  that 
we  shall  not  be  without  some  experience  of  it  in 
ten  years.  And  1  wish  to  say,  that  in  my  own 
mind,  whatever  it  may  be  in  others,  this  view  of 
the  subject  is  not  entirely  new.  The  past  has  not 
pushed  on  in  this  competition,  as  last  as  it  would 
if  it  had  not  been  for  the  wretched  public  bank- 
ruptcy, and  social  insolvency  of  the  West,  and  if 
the  evils  of  bad  financiering  in  the  Southwest,  and 
from  civil  dissensions  in  the  Canadas.  From 
these  cai^es  you  feel  no  injury  from  competition 
now.  They  may  be  unwise,  again,  they  may 
not,  and  1  think  they  will  not— but  if  they  are, 
you  may  be  saved  again.  But  is  it  wise  thus  to 


calculate  on  the  folly  of  your  neighbors  ?  Per- 
haps the  burnt  child  will  dread  the  fire  too  much 
to  repeat  his  tolly. 

During  the  present  year  too,  the  road  to  the 
Southwest  by  the  Gulph  <  i  Mexico,  has  bee.i  to 
some  extent,  avoided,  because  of  apprehended- 
danger  of  war  with  Great  Britiau  ;  for  I  do  riot 
believe  any  thing  was  apprehended  from  misera- 
ble Mexico,  and  tha  road  through  the  Canadas- 
was  probably,  to  some  extent  avoided  lor  the  same 
reason.  I  believe  that  all  these  things  had  some 
small  effect  upon  the  progress  of  the  last  year. 

These  remarks  enable  me  to  say  that  I  do  not 
believe  that  this  Convention  here,  is  in  a  situation 
10  fix  rules  against  the  reduction  of  canal  tolls. — 
All  such  attempts  are,  in  my  opinion,  gone  past 
their  time.  You  cannot  do  it  with  salety,  you 
must  leave  the  question  open.  You  must  take 
he  consequences  of  this  discretionary  power  for 
good  or  evil.  If  yon  can  make  the  revenues  large 
either  by  high  or  low  tolls,  and  thus  get  rid  of 
he  debr,  you  will  be  fortunate, — if  you  cannot  do 
t,  the  debt  must  be  met  by  direct  taxes.  It  can- 
not hang  around  the  energies  of  the  people  of  the 
state,  it  will  not.  You  have  not  even  a  corpoaal's 
guard  to  enforce  your  laws,  and  if  we  who  have 
contracted  the  debt,  who  have  looked  somewhat 
to  its  reduction — have  not  the  moral  courage  and 
foresight  to  end  it  by  payment,  and  instead  of  pay- 
ing, will  take  the  money  to  spend,  who  believes 
that  the  conduct  of  our  successors,  when  the 
debt  comes  to  them  with  the  weight  of  years,  will 
be  in  anywise  moie  reputable  or  honest  ?  The 
result  will  be  non-payment  and  repudiatio.  If 
we  who  have  been  active  in  getting  up  debts,  are 
not  prepared  for  payment,  but  will  use  the  means 
of  payment  for  our  own  expenses,  believe  you, 
that  those  who  come  after  us  will  pay  them  ?  You 
may  believe  it  if  you  can,  but  it  will  not  be  true. 
You  must  take  these  tolls  when  you  can  get  them, 
and  you  must  pay  with  them  as  well  as  you  can. 
When  they  will  not  answer,  you  must  meet  the 
deficit  by  taxes,  direct  or  indirect,  and  expunge 
the  debt.  I  wish  to  know  whether  any  other 
course  is  open  to  a  free  people  ?  What  is  the 
worst  vice  of  the  worst  government  ?  It  is  the 
fact,  that  it  dof-s  not  pay — will  not  pay  its 
current  debts.  This  vice  generally  goes  on  and 
ends  as  it  would  here— in  cruel  and  oppressive 
taxation  for  a  period — the  wronging  of  the  credi- 
tor, and  despoiling  of  the  citizen.  Such  is  the 
way  in  which  debt  works  in  every  country.  I 
wish  to  know  whether  these  representative  gov- 
ernments are  to  be  marked  by  this  woist  of  vices, 
or  whether  they  will  as  becomes  a  free  and  res- 
ponsible people,  by  canal  tolls,  and  if  these  are 
insufficient,  by  taxation,  meet  this  debt.  For  one, 
I  answer,  that  it  must  be  paid  speedily,  and  with 
interest,  by  canal  means,  if  it  can  ;  but  be  paid  by 
taxes  if  necessary.  And  in  saying  this,  I  believe 
I  express  nothing  but  the  opinion  of  every  mem- 
ber of  thestanding  committee.  While  I  say  this 
for  the  committee,  I  will  conclude  this  pan  of  the 
subject  by  expressing  as  my  own  opinion  the  con- 
viction, that  in  all  probability  our  revenues  for 
some  S  or  10  years  to  come,  will  increase,  as  has 
been  usual,  and  we  shall  be  able  to  maintain  most- 
ly our  tolls  at  present  rates.  After  8  or  10  years, 
competition  will  be  sensibly  felt,  and  compel  us 
to  reduce  our  rates  of  toll  to  secure  transpoitation 


1091 


and  sustain  our  aggregate  levenue.  In  15  or  20 
years  that  competition  will  become  so  strong  as 
to  force  down  these  rates  of  toll  so  strongly  and 
rapidly  as  to  reduce  that  aggregate  of  revenue. — 
While  yet  we  .can,  we  should  pay  our  debts,  and 
prepare  for  this  great  and  distinctly  foreseen  com- 
petition. 

Wivh  these  general  observations,  applicable  to 
the  whole  subject,  I  now  proceed  to  examine  the 
projet  intioduced  by  the  committee,  for  the  dis- 
position of  this  debt. 

Mr.  HOFFMAN  then  read  the  following: 
SKC.  1.  Alter  paying  the  expenses  of  collection,  super- 
intendence and  ordinary  repairs,  [$1,500,000]  one  million 
and  fire  hundred  thousand  dollars  ot  the  revenues  of  the 
State  canals  shall,  in  each  fiscal  year,  and  at  that  rate  lor 
a  shorter  period,  commencing  on  the  first  day  of  June, 
one  thousand  eight  hundred  and  forty-six,  be  set  apart 
as  a  sinking  fund,  to  pay  the  interest  and  redeem  the  prin- 
cipal of  that  part  of  tne  S'.ate  debt  called  the  canal  debt, 
as  it  existed  at  the  time  aforesaid,  and  including  three 
hundred  thousand  dollars  then  to  be  borrowed,  until  the 
same  shall  be  wholly  paid;  and  the  principal  and  income 
of  the  said  sinking  fund  shall  be  sacredly  applied  to  that 
purpose. 

The  first  matter  provided  for  in  the  section,  is 
the  ordinary  expenses  of  the  canals. 

The  committee  thought  themselves  bound  to 
apply  for  these  repairs  of  the  canal  the  funds,  so 
far  as  they  are  necessary  for  that  purpose.  Good 
faith  to  the  creditors  require  il — good  faith  to  the 
State,  and  sound  policy  in  every  respect.  Then 
what  will  be  the  ordinary  repairs  of  the  canal? — 
On  this  subject  there  is  undoubtedly  room  for  some 
degree  of  speculation.  But  I  believe  from  the  ta- 
bles presented,  it  will  not  be  very  difficult  for  the 
Convention  to  come  to  a  safe  conclusion.  Table 
9,  page  48  of  the  Convention  Document  No.  47, 
shows  the  charges  for  repairs  upon  all  the  canals 
as  a  system  and  the  aggregate  amount  of  expendi- 
ture upon  them  Looking  at  page  49  and  taking 
their  whole  course,  gentlemen  will  find  that  the 
whole  payment  upon  all  the  canals,  for  all  sorts 
of  expenses  paid  upon  them,  has  been  over  $10, 
098,370,  and  the  difference  between  their  income 
and  payment  is  $18,603,155.  A  general  inference 
from  this  comparison  tolerably  safe,  would  be  thai 
the  ordinary  expenses  upon  a  system  of  canals  of 
the  kind,  would  about  equal  one-third  of  their  en- 
tire revenues.  In  the  case  alluded  to,  ot  all  the 
canals  as  a  system,  the  rate  would  be  a  little  high- 
er. Taking  the  Erie  and  Charnplain  canals  from 
1826,  when  they  were  first  brought  into  operation 
down  to  the  end  of  1845,  as  it  appears  by  table  H 
p.  47  of  the  same  document,  the  total  paymen 
for  expenses  were  $8,630,921 — and  revenues  over 
these  payments  were  $18,964,796 — the  expenses 
being  between  a  third  and  a  fourth  of  the  whol 
income  from  these  canals.  In  the  table,  som 
extraordinary  expenses  are  included,  but  even  af- 
ter all  past  improvements,  such  must  be  expectec 
hereafter.  In  these  tables  the  Convention  hav< 
our  large  practical  results.  Taking  the  expense 
ot  these  canals  as  a  system  for  the  last  ten  years 
and  I  find  that  they  have  paid  in  all  $5,841,609 
and  that  their  annual  cost  might  be  put  at  $584, 
160.  I  refer  the  Convention  to  these  tables,  as  ai 
fording  the  best  information  in  our  power  to  ob 
tain  on  the  subject  of  these  expenses.  They  spea! 
truly  as  to  ihe  past,  and  furnish  the  best  ground 
for  judging  of  the  future.  [Note  A.,  foot  of  nex 
column.] 


I  do  not  like  to  hazard  a  calculation  on  a  matter 
f  this  sort,  at  best  a  mere  matter  of  conjecture. — 
When  the  canal  commissioners  who  managed  the 
anals  in  1825-'26  estimated  the  expense  ot  the 
anals  for  a  series  of  years  to  come,  they  supposed 
hat  about  $100,000  per  annum  would  be  ample  for 
ine  years  then  to  came,  but  when  it  came  to  be 
ried,  it  was  found  that  the  expenses  in  some  nine 
ears  came  to  $3 ,000,000.  I  prefer,  uncertain  as  es- 
inaates  must  be,  to  be  guided  in  this  matter,  some- 
vhat  by  certain  results.  The  repairs  last  year  werea 

ttle  larger  in  amount  than  usual.  In  future  years 
re  may  not  be  so  unlortunate,  and  we  may  be 
more  so.  And  when  we  come  to  examine  the 
uestiori  as  to  the  capacity  of  the  canals,  I  believe 
t  will  be  found  that  not  too  much  has  been  set 
part  for  these  ordinary  repairs.  Under  these 
ircumstances,  allowing  for  every  thing,  consider- 
ng  all  things  that  have  passed  in  relation  to  it, 
^collecting  that  some  items  which  ought  to  have 
.een  put  in  here  as  repairs,  have  actually  got  into 
he  funded  debt,  the  committee  were  not  able  to;say, 
hat  probably  the  ordinary  expenses  of  the  canal 
is  a  svstem,  can  be  less  than  $600,000  lor  each  of 
he  ten  ensuing  years.  In  some  years  it  would  be 
more,  in  some  less;  but  tor  the  general  average 
his  is  as  small  a  sum  as  we  ought  to  estimate. 

Mr.  WORDEN:  I  wish  to  ask  the  gentleman 
f  that  includes  all  the  expenses  on  the  canals? 

Mr.  HOFFMAN:  No  sir.  The  heading  of 
he  table  shows  that  it  includes  only  what  you 
uust  pay  to  keep  the  canals  in  operation,  and  in- 
cludes nothing  for  debt,  or  interest  on  stocks. — 
The  necessary  amount  for  expenses  might  be  put 
perhaps  at  $584,000,  if  we  continue  to  do  for  the 
iext  ten  years  as  we  have  for  the  past.  But  $600,- 
JOO  yearly  is  more  probable.  The  average  of 
$600,000  to  which  I  allude  then,  is  by  the  plan  of 
inance  of  the  committee  entitled  to  priority  over 
others,  and  I  believe  that  it  is  rightfully.  We 
supposed  that  sum  to  be  about  sufficient  to  cover 
ordinary  expenses.  This  is  not  the  tune  or  place 
:o  discuss  the  question,  whether  the  canals,  in 
their  present  condition,  can  perform  their  duty  to 
;he  public..  I  will  only  say  here  that  before  1  set 
down,  I  hope  to  be  able  to  satisfy  every  member 
who  will  attend  to  the  question,  that  they  are 
abundantly  able  to  do  all  the  business,  and  better 
than  they  did  in  LS34-'35,  in  the  condition  in 
which  they  then  were;  and  that  by  a  proper  ex- 
penditure upon  thAn,  they  may  be  made  equal  to 
any  duty  which  can  in  all  human  probability  over  - 
take  them  in  the  next  ten  or  twenty  years. 

I  now  proceed  to  consider  whether  the  $1,500,000 
of  tolis  proposed  to  be  taken  to  pay  the  canal  debt, 


[A-] 


Erie  and  Charnplain  Canals— table  H:  pages  46-47. 

$27,695,71825 
8,630,921  72 


From  1826to  1846— total  Revenue, 
«•         •<       total  Expenses, 

Difference  in  20  years, 
All  the  Canals  as  a  system — table  1 
Total  Revenues, 
Total  Expenses, 

Difference, 
All  the  Canals  as  a  system  for  the 

Total  Expenses  for  10  year?, 
Or  average  of 
—Vide  Con.  Doc.  No.  47. 


$18,964,796  53 

:  pages  48 — 9. 
$28,701 ,627  64 
10,098,370  34| 

$18,603,155  69£ 
last   10  years, 

$5,841,609  88 
634,160  98 


1092 


is  a  fit  and  proper  sum.  The  debt,  as  I  showed 
the  Convention  from  ihe  table  B — 2,  Con.  Doc. 
No.  47  :  p.  36,  on  the  first  day  of  June  1846,  was 
$17,516,119,57,  the  interest  up  to  the  lime  of  pay- 
ment  is  $8,379,833,  making  in  the  aggregate  to 
the  day  ot"  payment  without  any  extension,  $25,. 
895,957,90,  or  in  round  numbers,  $26,000,000. 

Tiiis  annual  sum  of  a  million  and  a  half  propo- 
sed to  be  set  off'  as  a  sinking  fund,  will  pay  the 
debt  at  about  1864;  but  it  will  add  to  the  debt 
about  a  million  and  a  half,  from  its  necessary  ex- 
tension beyond  the  time  when  it  falls  due.  In  no 
scheme  of  paying  this  debt  yet  brought  forward  do 
we  get  tid  of  the  necessity  lor  this  extra  interest. 
The  scheme  adopted  by  the  committee  comes  near- 
est to  doing  this — so  near,  that  although  it  can- 
not at  all  times  pay  the  debt  as  portions  of  it  tall 
due,  it  does  pay  the  whole  within  the  time  at 
which  the  lategr  portion  of  it  does  actually  fall 
due.  It  becomes  then  a  question  for  consideration 
if  the  debt  must  be  deferred,  how  long  it  can  safe- 
ly be  deferred,  and  what  will  probably  be  the  ex- 
pense of  deferring  it,  and  the  interest  upon  it-  On 
the  long  loans  of  the  State,  when  its  credit  was 
best,  money  could  be  obtained  at  5  1-2  per  cent. 
quarterly,  and  1  urge  attention  to  this  distinction. 
The  Stale  has  no  yearly  loan,  and  you  cannot  tell 
precisely  what  tin:  yecirly  rales  ot  interest  are, 
the  rates  are  quarterly,  except  in  the  single  in- 
stance of  temporary  loans  tor  the  general  fund, 
which  have  been  six  percent  half  yearly.  Look- 
ing at  the  table  in  general  use  among  the  dealers 
in  stocks,  1  find  that 5  1  2  percent  quarterly, comes 
witMn  ine  very  smallest  possible  traction  of  being 
.six  percent  per  annum,  taking  the  short  time  ot 
'one  year,  and  cannot  differ  a  "very  litile  from  it, 
taking  another  year  or  two.  The  ternpoiary  loans 
have  generally  been  six  percent  half  yearly,  that 
is  something  over  six  per  cent  yearly.  Five  and 
a  half  per  cent  quarterly,  lias  been  about  your 
lowest  rate,  and  that  is  about  six  per  cent  per  an- 
num. Endeavoring  to  come  at  some  rate  which 
might  be  practical  in  its  operation,  I  have  sup- 
posed six  per  cent  yearly  to  be  about  that  rate. — 
Oiher  estimates  are  here,  as  I  presume  Irom  the 
printed  papers  before  us,  calculating  interest  al 
lower  rates.  1  believe  such  a  mode  to  be  enurel} 
deceptive,  and  that  six  per  cent  yearly  will  be  the 
lowest  rate  at  which  the  matter  can  be  managed. 
In  paying  lai  ge  sums  you  must  have  a  sum  on  hand 
accumulating  to  meet  the  payment  while  ihe  in. 
teresr  is  running,  both  on  the  payment  to  be  madet 
and  the  money  you  have  porvided  to  make  the  pay- 
rneut.  If  you  are  obliged  to  extend  the  old  debt 
and  your  sums  are  large  as  they  are  here,  you  will 
be  obliged  to  obtain  money  somewhat  before- 
hand to  pay  the  interest  or  principal,  and  if  in  thu- 
movement  of  this  matter,  your  fiscal  officers  shall 
be  able  to  keep  within  Ihe  limit  of  six  per  cent  per 
annum,  they  will  do  well.  They  will  try  to  obviate 
the  difficulty  by  purchasing  stock  at  a  pietnium. 
Your  creditor  has  aright  to  hold  till  the  last  hour. 
For  he  is  dealing  with  these  stocks  as  a  trade,  and 
rightfully.  We  blame  him  sometimes  tor  this,  as 
it  the  money-lender  had  not  the  same  right  to  pur- 
sue his  trade  as  others  have.  You  are  bound  to 
meet  him  at  the  time  and  pluce  appointed,  and  to 
do  so  you  may  have  to  lose  inteiest  on  your  mo- 
ney— he  will  not  on  his.  I  object  to  the  low  rates 
at  which  the  estimates  alluded  to  are  computed, 


oecause  they  make  no  provision  tor  this  loss  in  the 
movement, and  the  quarterly  rates.  They  are  made 
in  direct  disregaid  of  what  has  taken  place  since 
we  have  been  here.  You  have  advertised  for  $300,- 
000,  and  looking  at  the  table  here,  it  may  be  sup- 
posed that  you  get  it  at  five  per  "cent.  Not  one 
offer  was  made  at  that  rate,  and  the  State  in  1846, 
cannot  get  $300,000  at  five  per  cent,  quarterly. — 
You  offered  six,  and  it  was  taken  af  a  small  pre- 
mium of  five  or  six  per  cent,  on  eighteen  years. 
In  a  long  period  ot  eighteen  or  twenty  years,  which 
this  debt  has  to  run,  the  rate  of  interest  may  be 
reduced — so  it  may  be  increased.  Suppose  you 
had  to  attempt  loans  now,  in  the  face  ot  those 
sought  by  the  Federal  government.  In  some  of 
the  plans  submitted  here,  it  is  proposed  to  get 
$12,000,000  or  $16,000,000,  but  suppose  you  had 
to  get  half  of  that  sum  in  the  face  ot  the  Federal 
government  in  the  market,  believe  you  that  you 
would  get  it  at  5  1-2  per  cent,  quarterly  ?  No  sir  I 
You  may  not  always  be  at  peace.  You  may  be 
compelled  to  make  these  pa\  merits.  Not  when 
struggling  with  weak,  insignificant  Mexico.  No 
sir;  but  when  in  conflict  with  France  or  with 
Great  Britain,  it  is  not  safe  to  suppose  that  be- 
cause you  choose  to  run  in  debt,  that  the  world 
therefore  will  choose  to  be  at  peace  with  you. — 
True,  you  may  be  at  peace  if  you  will  yield  in  ev- 
ery controversy,  but  it  may  not  be  honoiable,  pro- 
fitable, or  in  your  temper  to  yield.  But  gentlemen 
seem  to  suppose,  out  of  doors,  that  it  would  ba 
John  Bull  that  would  hold  our  stocks,  and  that  if 
he  goes  to  war,  you  would  be  under  no  obligation 
to  pay  them.  Such  vile  logic,  such  villanous  im- 
morality, does  not  exist  in  fact.  If  John  Bull  did 
hold  your  stocks,  he  is  not  compelled  to  do  it.  He 
c,<n  put  them  in  the  hand  of  a  neutral,  your  triend, 
perhaps  the  very  country  where  you  go  to  borrow 
the  sinews  of  war,  and  who  will  say  to  you,  pay 
us  this  money.  The  demand  would  not  come  Irom 
the  public  enemy,  but  from  your  friend,  a  neutral, 
and  he  the  very  one  from  whom  you  desire  to  bor- 
row to  arrn  and  defend  your  country.  It  is  not 
very  agreeable  to  have  such  a  debt;  it  is  rather 
unpleasant.  But  we  must  try  some  mode  of  pay- 
ing this  debt,  besides  repudiation.  Now,  I  have 
staled  the  reasons  why  the  committee  have  adopt- 
ed no  other  mode  of  calculation  than  six  per  cent., 
and  I  now  wish  to  state  the  result  of  that  calcula- 
tion. 1  want  to  show  its  mevement  and  how  the 
thing  will  practically  work  at  the  end  of  each 
year— -beginning  with  June,  1846.  I  have  in  my 
hand  tables  to  show  the  opeiations  of  all  or  most 
of  the  various  sinking  funds  proposed,  calculated 
in  the  same  manner,  as  well  for  the  canal  debt,  as 
for  the  general  fund  debt,  (always  including  the 
insolvent  rail-road  debt  as  now  fixed  on  the  1-reas- 
ury,)  and  of  the  canal  and  such  general  fund  d<  bt 
united.  The  sum  due  as  ascertained  Irom  the  ta- 
bles estimated  by  the  comptroller,  as  I  have  read 
them,  for  interest  and  principal  due  at  the  end  of 
each  fiscal  year,  is  taken  as  the  debt  due  that  year 
— and  from  it  is  deducted  the  sinking  fund  of  that 
year,  showing,  as  an  actual  settlement  would  do, 
the  deficiency  of  the  fund,  or  its  surplus,  for  that 
year.  If  there  be  a  deficiency,  interest  on  it  at  six 
per  cent,  for  the  coming  year  is  charged  and  added 
lo  what  falls  due  for  pi  incipal  and  interest  that 
vear,  as  slated  in  the  table;  and  then  the  sinking 
fund  for  that  year  is  applied  in  payment  arid  the 


1093 


new  balance  is  struck.  But  if  the  sinking  lurid 
over  pays  the  demands  of  the  year,  then  interesi 
a1  six  per  cent,  is  calculated  on  thaf  surplus  and 
added  to  the  income  of  the  sinking  fund  lor  the 
next  year.  In  this  manner  the  process  is  contin- 
ued each  year  until  the  sum  set  apart  as  a  sinking 
fun' I  fully  pays  the  whole  debt,  principal  and  in- 
terest in  the  table,  and  any  balance  of  extra  inter- 
est which  may  be  caused  by  the  extension  of  pay- 
ment. The  estimate  makes  in  fact  a  statement  of 
the  balance  at  the  end  of  each  year,  showing  at 
once  the  principal  and  contract  interest  united, 
and  the  extra  interest  received  or  paid  each  year, 
until  the  debt  is  wholly  extinguished  by  the  fund 
— the  sum  over  due  or  in  arrear,  the  surplus  on 
hand,  and  the  extra  interest  each  year.  Here  they 
are,  sir,  and  any  gentleman  can  examine  them. — 
Since  the  committee  made  some  of  these  state- 
ments, they  have  been  recalculated  by  able,  faith- 
ful clerks  in  the  public  offices,  and  are  undoubted- 
ly correct.  They  show  the  practical  working  of 
the  several  propositions,  and  as  I  may  not  be  able 
to  print  them  at  full  length,  I  must  state  to  you 
some  of  the  results. 

Take  the  canal  debt — if  we  pay  at  the  rate  of 
$1,500,000  a  year,  as  proposed  by  the  committee, 
then  for  the  years  1847  and  1855  there  will  be  a 
surplus  in  the  fund  and  interest  in  its  favor.  For 
every  other  year  there  will  be  a  deficiency  in  the 
fund,  and  of  course  extra  interest  again«t  it.  These 
deficiencies  in  the  fund  will  in  general  not  be  lartje 
—but  will  in  1856  be  $2,249.396— in  1S58,  $3,. 
238,229,  and  in  1862,  $2,444,486— the  balance  of 
interest  on  the^e  deficiencies  over  the  interests  on 
the  two  snrplu.-es  will  be  $1.587,817  49— and  the 
debt  will  be  paid  in  18  1-3  years,  in  1864.  In  this 
mode  of  paying  the  canal  debt, — it  will  cost — (ta- 
ble B.  2—) 

For  principal, 

For  interest  per  contract, 

!•  or  extra  interest  for  extension, 


$17  516,119  57 
8,379  838  33 
1,587,817  49 

$27,483,776  89 


Total  for  canal  debt, 

I  must  here  anticipate  and  state  the  results  of  pay- 
in?  $500,000  a  year  towards  the  General  fund  debt, 
as  proposed  by  the  committee.*  The  fund  would 
in  general  be  able  to  meet  that  debt,  interest  and 

*  NOTE-— The  part  of  the  report  of  the  standing  commit- 
tee  which  contains  the  provisions  for  the   General  Fund 
-    debt  is  as  follows  :— 

(j  4.  Ot  the  sum  of  six  hundred  and  seventy-two  thou- 
sand and  five  hundred  dollars,  required  by  ti  e  second 
section  ol  this  article  to  be  paid  into  the  Treasury,  [$600,- 
000]  five  hundred  thousand  dollars  shall,  in  each  fiscal 
ye.ir,  and  at  that  rate  for  a  shorter  period,  commencing  on 
the  first  day  of  June,  one  thousand  eight  hundred  and 
forty-six,  be  set  apart  as  a  sinking  fund  to  pay  the  inteerst 
and  redeem  th<-  principal  of  that  pait  of  the  S  at^  debt, 
called  the  General  Fund  debt — including  the.  debt  foi 
loans  of  ;ho  State  credit  to  rail  road  companies  which 
have  (iiiled  to  p.iy  the  interest  thereon,  and  .  Iso  the  con- 
tingent .debt  on  State  s'oek1-  loaned  to  incorporated  com- 
panies which  have  hitherto  p;«id  the  interest  thereon  when- 
evi'i-,  and  as  far  as  any  part  thereof  may  become  a  charge 
on  the  Treasury  o1  General  Fund,— until  the  same  shall 
be  ^holly  paid  ;  and  the  principal  and  income  ot  th«  said 
last  mentioned  sinking  fund  shall  be  sacredly  appJi--d  to 
the  purpose  aforesaid  ;  and  if  the  payment  of  ;.ny  art  of 
the  said  fivr  huudred  thousand  doll:  rs  shall  at  any  time 
be  deferred,  by  r«*anm  of  the  priority  recognized  in  the 
second  section  ot  this  article,  the  sum  so  deierr.d,  with 

gumt'Tly  inteiest  thereon,  at  the  then  current  rate,  shall 
e  paid  to  the  last  mentioned  sinking  fund,  as  soon  as  the 
sum  so  deferred  shall  be  received  into  the  Treasury. 


principal,  as  it  is  proposed  to  be  paid  in  the  Comp- 
troller's fable  E.  befoie  m;»de 

The  interest  on  deficiencies  of  the  fund  would 

be  $214,2-14  23 

And  in  favor  of  the  fund  on  its  surplus,  197,167  89 

Leaving  a  balance  of  interest  on  deficiencies, 
of  only  $  17,036  34 

showing  that  there  would  be  some  balaces  in  favor 
of  this  fund  in  the  hands  of  Ihe  public  officers, 
with  which  they  could  aid  the  canal  sinking  tund 
— and  the  general  fund  debt  would  be  paid  in 
19  1-3  years,  at  the  cost  of — 

For  principal $5,885,549  24 

For  interest  as  per  table  £ 3,803,458  24 

Foi  balance  of  extra  interest,  ...  17,086  34 


Makingtogether, 


),7<J6,093  82 


But  this  supposes  that  no  part  of  the  contin- 
gent debt  will  tall  on  the  Treasury.  If  the  sum 
which  I  have  before  stated,  as  iht?  probable  one, 
shall  become  a  charge  on  the  Treasury,  then  this 
sum  of  $'500,000  a  year  would  pay  the  debt  about 
as  soon  without  that  charge  as  it  would  be  paid, 
by  applying  $450,000  a  year  towards  the  debt. — 
The  latter  sum  without  any  increase  of  the  debt, 
would  subject  the  fund  to  pay  : 

Interest  on  deficiencies,  ..  < $1,118,577  84 

And  receive  interest  on  surplus,.  20,626  76 

Making  a  balance  of  extra  inter- 
est ot, $1,097,951  08 

Add  interest  and  principal  as  in 
table  E,.,  9,689,00748 


Requiring  to  pay  the  debt  in  about 

24  years,  or  by  May,  1870, $10,786,958  56 

If  the  sinking  fund  for  this  debt  be  reduced  to 
$400,000  a  year,  it  would  without  any  increase 
from  the  contingent  debt  extinguish  it  in  1878,  at 
a  cost  for  the  balance  of  extra  interest  of  $3,191,- 
442  83— requiring  $12.880,450  31  to  extinguish 
the  debt,  the  principal  ot  which  is  now  only  $5,- 
835,549  24,  and  which  if  promptly  paid,  will 
cost  onh  £9,689,007  48  to  pay  it. 

Your  committee  could  tut,  therefore,  recom- 
mend these  slow,  expensive  modes  of  paying  this 
part  of  the  public  debt  I  musi,  therefore,  call 
attention  to  the  slower  and  si  ill  more  expensive 
projects  to  pay  these  debts,  or  rather  of  non-pay- 
ment. 

The  gentleman  from  Schoharie,  proposes  to  pay 
the  canal  debi  by  a  sinking  fund  ot  $1,275,000  a 
year.  To  make  his  sinking  fund,  he  appears  to 
have  taken  the  one  third  of  the  interest  when  the 
debt  was  largest,  and  to  have  added  it  to  the  in- 
terest when  the  debt  was  least,  and  reduced  by 
'he  1  «te  July  payments,  instead  of  doing  as  the 
acts  of  1842  and  1S44  reqmie,  that  is,  adding  that 
third  ot  the  interest  of  the  debt  when  it  was 
largest,  and  applying  the  aggregate  in  a  constant 
sum  every  year.  Oa  his  plan  of  paying  the  canal 
debt,  there  would  be  no  surplus  or  interest  in  fa- 
vor of  the  fund.  There  would  be  a  deficiency  in 
each  year,  and  extra  interest  on  it.  These  defi- 
ciencies would  be  large;  (or  example  in  the  year 
1849,  $3,116.089  j  iri'1851,  $3,540,321  ;  in  1858, 
87.184.8Sl  ;  in  1861,  $3,246.539,  and  in  1862 
$8,411,832.  And  the  aggregate  of  interest  on 


1094 


these  deficiencies,    from    January,    1846  to    1872, 
to  which  the  debt  would  extend, 

Would  he, $6,455,295  37 

Principal  of  debt,  $17,516,119  57 
Interest  from  the 

table, 8,379,838  33 

25,895,295  37 


Making  the  debt  cost  tor  its  ul- 


timate payment $32,351,253  27 


He  proposes  to  pay  the  General  Fund  and  Insol- 
vent Rail  Road  debt,  fable  F.,  by  a  sinking  fund  of 
$420,000  a  year.  On  this  plan  the  deficiencies  of 
the  fund  would  be  almost  constant,  and  in  some 
years  quite  large,  as  for  example,  in  1852,  $1,050,- 

The  aggregate  interest  on  these  deficien- 
cies would  be  $  2,154,166  58 
And  the  interest  on  surplusses,  only  7,051,  39 

Causing  extra  interest  to  $  2,147,114  65 

If  we  add  the  principal  of 

this  debt,  table  E.,  $5,885,549  24 

Interest  by  the  table,  3,803,458  24 

9,689,007  48 

Requiring  to  pay  this  debt  in  1874.  $11,836,1:22  13 

All  the  other  schemes  of  payment  are,  I  believe 
slower,  more  expensive,  and  are  subject  to  the  ob- 
jection that  they  wholly  disregard  the  prior  equi- 
ties of  the  canal  creditors  over  all  others  and  over 
the  State.  These  canal  creditors  have  special 
pledges  that  can  not  be  violated  without  great  in. 
justice  to  them  and  severe  reproach  to  those  who 
may  violate  them.  As  fiscal  means  to  pay  the  whole 
canal  and  general  fund  debt  united,  as  calculated 
in  the  table  F.,  which  I  have  read — they  may  be 
considered  and  compared  with  the  plan  of  the  com- 
mittee.. 

The  plan  of  the  committee,  if  united,  would  es- 
tablish a  sinking  fund  of  $2,000,000  a  year  for  the 
whole  absolute  debt  which,  according  to  table  F., 
would  be, 

For  principal, $23,401,668  81 

Interest  as  computed  in  the  ta- 
ble according  to  contract, $12,183,296  57 


Will  be  together, $35,584,965  38 

which,  for  brevity,  I  will  now  call  the  whole  debt. 
On  this  plan  the  largest  deficiency  would  be  felt 
in  1S61,  of  $3,302,335  18,  and  in  1862,  of  $3,512,- 
461  80.  It  would  pay  the  debt  in  Dec.,  1864,  with 
an  addition  for  interest  on  defici- 
encies, of $  1,583,014  32 


Whole  debt,  as  above, ,     35,584,965  38 

Interest  on  deficiencies, 1,583,014  32 


Necessary  to  pay  the  debt  on  the 
committee's  plan, $37,167,979  70 

Mr.    Bouck's   plan    united    proposes  to  pay  the 

whole  debt  as  above, $35,584,965  38 

by  a  sinking  fund  of  $1,695,000  a 
year,  will  leave  very  large  defi- 
ciencies for  many  years,  and  in 
1862  of  $11.600  851  91— redeem 
the  debt  in  July,  1872,  and  the  ag- 
gregate of  interest  for  deficiencies 
will  be 8,528,708  47 


Requiring  lo  pay  the  debt,..,.  $44,113,673  85 


Mr.  AYRAULT,  of  Livingston,  proposes    to  pay 
the  debt  of, '$35,584,965' 38 

By  a  sinking  fund  of  $1  ;500,UOO, 
for  ten  aed  a  half  years,  and  after 
that  of  $2,000,000  which  will 
leave  still  larger  deficiencies  and 
in  1862,  amounts  to  $13,200,953.- 
85,  will  extend  the  debt  down  to 
January,  1872,  at  an  aggregate  for 
extra  interest  of 10,366,479  01 


Requiring  to  extinguish  this  debt,  $45,951,444  39 

And  extending  the  debt  down  to  January, 
1872. 

Among  the  other  schemes  for  not  paying  this 
lebt,  is  one  which  proposes  a  sinking  fund  of 
$1,500,000,  very  little  exceeding  the  interest.— 
The  deficiencies  on  this  plan  will  fur  three  years 
exceed  $15,000,000,  and  in  1862  will  amount  to 
$16,772,117  73.  The  debt  will  extend  to  May, 
1883,  and  the  aggregate  of  interest  will  be, 

$19,441,113  87 
Adding  the  debt, 35,584,965  38 


And  it  will  require, $55.026,078  87 

To  extinguish  it  one  hundred  years  after  the  treaty 
of  peace  with  Great  Britian,  at  the  close  ot  the 
Revolution. 

My  friend  from  Allegany,  Mr.  ANGEL,  has  pro- 
posed a  sinking  fund,  I  believe,  of  $1,600,000  a 
year.  This  is  worse  than  that  of  Mr.  BOUCK, 
and  only  some  better  than  the  last,  and^could 
scarcely  fail  to  require  the  payment  of  ten  mill- 
ions or  more  to  the  debt  for  extra  interest. 

Such,  sir,  are  the  comparative  results  of  the 
several  sinking  funds  proposed  for  payment,  when 
calculated  by  the  same  rule  and  rate  of  interest 
which  I  believe  to  be  the  true  one,  and  most  con- 
formable to  what  will  be  found  correct  in  practice. 
Although  our  means  are  great,  yf  t  the  payment  of 
our  debt  will  be  most  expensive. 

You  will  scarcely  get  rid  of  it  short  of  $40,000,  - 
000.  I  have  the  detailed  results  of  the  plans  of 
others,  to  show  this  committee  how  much  worse 
can  be  done,  than  by  the  prompt  payment  recom- 
mended by  the  standing  committee.  It  is  seen 
that  even  paying  one  and  a  half  millions  a  year 
towards  the  canal  debt,  there  will  continue  to  be 
deficits,  in  some  instances,  of  two  and  a  quarter 
millions,  and  in  one  instance  of  more  than  three 
millions.  How  are  your  public  officers  to  meet 
these  temporary  deficits  at  the  end  of  the  year  ? 
So  long  as  they  can  secure  the  creditor  by  tempo- 
rary advances  from  the  School  Fund,  the  Litera- 
ture Fund,  or  any  other,  with  the  tolls  of  the  next 
month,  or  of  the  next  quarter,  so  long  as  the  bor- 
rowing power  of  the  State  is  maintained,  so  long 
will  your  financial  officer  be  able  to  get  along.— 
But  whenever  these  deficits  are  larger,  you  must 
not  only  pay  the  large  interests,  but  you  will  have 
to  commence  a  British  funding  system.  If  I  had 
time,  and  temper,  and  the  committee  had  time  to 
bear'with  me,  I  could  show  what  a  curiosity  the 
action  of  your  financial  officer  would  be  in  the 
nursing  of  this  debt  through  eight  or  ten  years  of 
suspension.  But  I  wish  to  show  how  much  worse 
this  thing  can  be  done.  As  these  deficits  are  ar- 
ranged in  the  plan  of  the  committee,  and  compa- 
ratively email  as  they  will  be,  they  will  be  con- 


1095 


trolable  by  the  public  officers,  and  the  management 
of  them  will  be  perfectly  easy  anil  safe.     But  when 
they  come  up  to  four  or  five,  or  six,  eight,  twelve 
or  sixteen  millions,  it  appears  to  me  that  it  will 
not  be  entirely  safe.     By  looking  at  the  dates,  the 
committee  will  see,  that  bringing  these  entirely 
within  the  limit  of  the  time  for  the  payment  of  the 
debt,  the  last  sum  becomes  due  in  1864.    I  believe 
that  the  plan  of  the  committee  will  comprise  the 
whole  ground  by  that  time  and  be  entirely  satis- 
factory.   But  if  it  will  not  do  so,  there  is  yet  ano- 
ther part  of  the  report  which  defends  the  faith  of 
the  State  against  the  reproach   of  repudiation. — 
The  sixth  section  provides  that  if  the  sinking  fund 
will  not  respectively  preserve  the  credit  of  the 
State,  the  Legislature  shall  make  them  sufficient 
to  do  so  perfectly  by  taxes — not  to  be  direct,  be- 
cause that  might  not  be  just— but  by  any  other 
mode  which  necessity  may  make  just  and  proper. 
There  is  another  part  of  the  subject  to  which  I 
wish  to  call  attention.     The  plan  of  the  committee 
proposes  to  pay  this  debt  within  the  time  the  law 
of  1842  promises  to  pay  it.    The  act  of  1842,  it 
seems  to  me.  never  could  be  misunderstood.    In 
drawing  that  act  if  I  had  had  a  doubt,  it  would 
have  been  removed'by  clauses  however  tautologi- 
cal.   All  the  acts  prior  to  that  time,  fixed  a  day 
when  Ihis  money  is  to  be  paid.    I  do  not  ask  the 
rigid  exaction  of  the  time,  or  ask  the  payment  as 
early  as  some  of  the  acts  required.    They  pledged 
your  faith,  you  must  keep  it  inviolate.    It  became 
endangered,  and  your  credit  sunk  in  1842,  and  you 
called  again  upon  those  who  loaned  you  before  to 
aid  you  in  your  difficulty.    That  act  was  under- 
stood here,  by  the  people  of  this   state,  by  the 
creditor,  that  you  would  pay  them  in  twenty-two 
and  a  half  years.    Nn  one  doubted  it,  and  it  was 
in  the  faith  of  that  promise  that  you  obtained  ored 
it  for  four  <  *r   five  millions  of  dollars,  and    were 
secured  from  a  social  bankruptcy,  and  your  cred 
it  was  restored.     And  if  you  do  not  pay  when  you 
promised,  your  course  is  as  unjustifiable,  as  if  you 
obtained  money  by  false  pretences.     Again,  if  tha 
act  was  in  itself  in  any  degree  doubtful,  it  was  no 
long  left  so.    The  finance  act  of  1844,  approve 
by  the  then    Governor,  and  passed  by    the    two 
branches  of  the  Legislature,  receiving  a  decidei 
majority,  gave  a  construction  to  the  act  of  1842 
and  expresses  in  strong,  plain  terms,  that  the  ac 
of  1842  engages  to  pay  in  twenty-two  and  a  hal 
years.    On  that  act  you  obtained  $900,000— it  wa 
renewing  your  engagements  to  your  creditors. — 
You  said  to  them,  the  former  act  intends  that  thos 
who  loaned  us  money  should  be   paid  in  twenty 
two  and  a  half  years  from  the  passage  of  the  act  o 
1842 — and  we  will  pay  you  the  amount  borrowe 
under  this  act  in  eighteen  years.     This  was  th 
act  of  1844,  approved  by  the  then  administration 
and  by  the  country.    In  the  report  of  the  Commis 
sionersof  the  canal  fund  for  1846,  will  be  found 
computation  upon   the  sinking  fund  on  the  act  o 
1842.    It  supposes  the  funded  sum  every  year  t 
be  made  equal  to  the  production  of  six  per  ceni 
It  carries  out  the  scheme   of  a  sinking  fund,  an 
pays  the  debt  in  twenty-two  and  a  half  years,  an 
is  made  out  precisely  in  accordance  with  the  act 
of  '42  and  -'44.    In  the  same  report,  page  9,  is 
sinking  fund  constructed  under  she  act  of  '44,  fo 

the  payment  of  tl.e  $900,000  in  eighteen  years 

The  same  period  for  payment  is  taken  by  the  stand 
ing  committee,  and  these  two  funds  are  supplie 
as  nearly  as  can  be.     It  pays  the  debt  with  the  leas 
possible   extra  interest,  and  therefore  makes  th 
least  burthen  upon  the  finances  of  the  State, 
does  another  thing;  the  act  of  '44  imposes  a  tax 
one-tenth  of  a  mill  or  $56,000  a  year,  and  pledge 
so  far  the  payment  of  the  interest  on  the  $900,00 


>an,  and  declares  that  it  shall  continue  to  operate 
i  favor  of  that  class  of  creditors,  until  the  surplus 
f  the  tolls  shall  make  the  requisite  sinking  fund 
>r  its  discharge  in  the  18  years  specified  in  the 
ct.  If  we  take  the  sinking  fund  as  proposed  by 
le  standing  committee,  in  connexion  with  the 
:h  section,  it  will  liberate  in  effect  the  $56,000  of 
irect  taxes  that  are  now  paid  towards  the  canals, 
ut  if  you  make  the  sum  less,  you  must  either  vi- 
late  this  sacred,  direct  and  specific  pledge,  or  else 
ou  must  leave  this  tax  to  operate  in  favor  of  the 
anal  debt.  You  will  not  say,  we  approve  of  the 
romises,  we  have  got  the  money,  and  we  turn 
ou  over  such  security  as  we  think  right.  The 
reditor  must  have  what  you  agreed  to  give  him — 
e  must  have  the  canal  tolls,  or  direct  taxes  to  the 
mount  agreed  on,  and  these  tolls  when  they  come 

'Mr.  ANGEL  ;  What  was  this  $900,000  for  ? 

Mr.  HOFFMAN  ;  To  pay  arrearages  and  un- 
arned  profits  to  canal  contractors,  and  land  dama- 
es.    Instead  of  being  $900,000  I  believe  it  should 
lave  been  more,    $1,200,000,  because  during  the 
ast  session,  the  legislature  authorized  a  new  loan 
f  $300,000,  paying  6  per  cent,  interest  for  it,  and 
ot  5  as  is  supposed  in  the  table.    Now  I  appeal  to 
gentlemen  here  when  they  recollect  the  condition 
)f  the  State  credit  in  1842,  and  the  relief  obtained 
nder  the  act  of  that  year,  the  sense  in  which  it 
was  known  to  be  received  and  understood  here  by 
he  creditor  and  all  who  supported  and  opposed  it. 
The  construction  given  to  it  by  the  act  of  '44,  the 
cans  obtained  under  that  act,  the  direct  tax  under 
t,  operating  now  in  favor  of  the  canal  debt,  and  the 
pecific  loans  for  the  canals,  with  the  approbation 
)f  the  then  government  and  those  who  represent- 
ed the  State  sovereignty,  whether  the  standing 
committee  could  with  any  propriety  have  recom- 
mended a  less  sum  to  be  applied  to  the  payment  of 
he  canal  debt. 

I  have  no  desire  to  make  a  stalking  horse  of  the 
public  faith,  but  I  wish  to  bring  before  the  com- 
nittee,  what  is  meant  by  a  breach  of  public  faith. 
In  a  moral  point  of  view,  and  in  its  numerous  con- 
sequences, it  is  in  relation  to  the  sovereign  body 
precisely  what  wilful  and  corrupt  perjury  is  to  the 
ndividual  man.  It  is  the  maximum  of  human  guilt. 
[t  may  be  committed  by  contracting  debt,  for 
which  the  sovereign  makes  no  adequate  provis- 
ion. In  other  states,  it  has  been  so  committed,  and 
perhaps  we  came  too  near  it  to  leave  us  any  great 
cause  lor  exultation  in  this  State.  But  it  may  be 
committed  in  a  worse,  and  if  possible  in  a  more 
lisreputable  and  guilty  manner.  When  the  sov- 
ereign has  contracted  a  debt,  wise  or  foolish,  if  \ve 
have  the  means  to  pay  it,  if  instead  of  paying  it, 
we  will  take  those  means  for  our  own  convenience 
or  in  any  other  way,  it  is  the  worst  and  most  cor- 
rupt manner  of  producing  a  breach  of  the  public 
faith.  I  believe  this  has  been  the  usual  mode 
among  sovereigns,  personal  or  social,  because  I 
apprehend  that  not  a  single  one  of  the  embarrass- 
ed states  of  the  Union  could  have  reached  their 
situation  of  debt  and  difficulty,  without  foreseeing 
their  danger,  being  warned  of  it,  and  that  the  day 
must  come  when  the  debt  would  exist,  and  there 
would  be  no  means  for  its  payment:  Nor  one 
which  by  an  application  of  the  means  in  its  pow- 
er, might  not  have  wholly  provided  for  its  debt.— 
We  were  on  the  very  verge  of  this  condition.  If 
you  will  take  your  revenues  and  apply  them  in 
payment,  make  it  as  rapidly  as  you  engaged  to  do, 
and  keep  your  promises  fully,  you  will  do  some- 
thing to  redeem  representative  government  from 
the  reproach  of  repudiation.  But  if  you  will  lag 
behind,  if  to  pension  this  locality  or  that,  to  re- 
ward followers,  or  to  get  a  numerical  majority 


1096 


here  or  there — you  will  apply  these  revenues  to 
new  or  old  works,  you  will  designedly  destroy,  by 
disregarding  the  rights  of  your  creditors.  Their 
just  claims  must  first  be  provided  for.  If  under  any 
pretences  for  better  or  for  worse,  you  will  take 
these  revenues  to  answer  any  of  your  own  purpo- 
ses, instead  of  giving  them  to  the  creditor,  then  I 
submit  that  in  the  eye  of  heaven,  and  in  the  judg- 
ment of  the  whole  earth,  you  have  repudiated  anil 
incurred  a  breach  of  faith  in  the  most  deliberate, 
most  corrupt,  and  in  the  worst  manner.  The  stand- 
ing committee  have  asked  you  only  to  pay  accord- 
ing to  the  lightest  rule  of  your  own  engagement. 
Not  only  did  the  government  in  ?42  and  '44  make 
these  promises,  but  I  submit  that  the  government 
in  '38  did  the  same.  It  was  then  supposed  that 
these  debts  would  reach  the  large  sum  of  $40,000,- 
000— they  did  reach  $28/>00,OOU.  The  revenues 
have  been  as  great  as  they  were  then  calculated  or 
expected.  You  have  no  apology  for  non  payment 
on  that  score,  and  you  have  put  forth  to  the  whole 
country,  to  the  creditors,  to  the  people  of  the  State 
and  to  the  world,  that  these  revenues  would  pay 
the  debt,  in  the  very  period,  in  which  the  stand- 
ing committee  have  required  it  to  be  done.  Here 
is  the  sinking  fund  table  as  found  in  the  Assembly 
document  No.  242.  of  1838. 

Mr.  HOFFMAN  exhibited  and  read  from  that 
table,  calculated  by  Mr.  Ruggles  for  the  purpose 
of  showing  the  progress  of  the  sinking  fund  form- 
ed from  the  surplus  revenues  of  the  canals,  com- 
mencing in  1838,  and  amounting  in  1865  to  more 
than  $40,000,000  ;  and  extinguishing  the  debt  of 
that  amount  which  he  alledged  might  be  safely 
created  for  internal  improvements,  on  the  assu- 
rance of  its  being  paid  in  that  manner. 

It  was  then  said  that  these  revenues  would  pay 
the  debt  without  a  resort  to  taxation.  The  debt 
has  not  been  so  large  as  was  expected,  by  many 
millions,  and  yet  they  have  not  done  it.  It  may 
be  said  that  the  gentlemen  who  then  administered 
the  government  here  were  not  cur  political  friends, 
that  we  were  not  bound  by  those  engagements, 
and  I  am  afraid  that  even  political  friends  have  re- 
pudiated the  engagements  of  their  predecessors  in 
office.  Whoever  occupies  these  places  as  the  rep- 
resentatives of  the  government  of  the  State,  speaks 
for  the  people  as  the  sovereignty  of  the  State.  If 
they  hold  out  promises  of  this  kind,  they  are  the 
promises  of  the  sovereignty,  and  it  is  in  vain  to 
say  that  they  are  political  friends  or  opponents — 
If  they  act  within  their  constitutional  limits, 
they  are  the  sacred  inviolable  word  of  the  sover- 
eign ;  and  accursed  be  that  person,  who  finding 
himself  under  an  obligation  of  this  kind,  should 
renounce  it,  or  hesitate  to  the  extent  of  the  means 
in  his  power,  to  meet  the  sacred  engagements  of 
the  sovereign  body.  They  did  make  these  prom- 
ises in  1838,  to  redeem  the  dent  in  the  time,  and  al- 
most the  total  of  our  debt  was  contracted  on  the 
faith  of  those  promises — the  revenues  have  been 
as  ample  as  was  expected — the  debt  upon  us  is 
some  17^  millions  of  dollars,  and  the  standing  com- 
mittee ask  yo«  to  pay  it  within  the  time  you  pledg- 
ed and  engaged  yourselves  it  should  be  paid.  Will 
you  hesitate,  will  you  doubt  ?  You  said  in  1842, 
you  would  pay  it— you  said  it,  because  whoever 


stood  here  then  spoke  for  you, — you  said  it  again 
in  '44 — you  had  said  it  in  '38,  and  you  said  it  with 
more  distinctness  and  emphasis,  in  the  progress  of 
this  debt  each  time  you  borrowed.  Do  I  say  too 
much  then,  when  I  say,  that  not  to  secure  these 
funds,  and  pay  as  far  as  you  are  able,  is  to  commit 
a  wilful  and  deliberate  breach  of  trust  ?  I  will  say 
that  if  this  convention  should  do  it,  I  may  be  obli- 
ged to  keep  silent  while  I  remain  here,  but  not 
even  this  convention  or  any  other  on  earth  with- 
out these  walls  shall  hinder  me  from  expressing 
my  utter  detestation  of  such  a  course.  I  will  hold 
it  to  be  a  breach  of  public  faith,  to  be  the  perjury 
of  the  State,  and  I  will  apply  it  to  the  conscience 
of  every  individual  man.  I  will  not  be  deterred 
from  doing  it,  for  I  know  what  has  been  the  con- 
sequence of  speaking  and  acting  lightly  in  matters 
of  this  kind.  It  has  brought  social  bankruptcy  on 
other  States. 

While  in  this  convention,  I  will  submit  to  its  ac- 
tion, but  I  will  hold  to  my  right  as  a  citizen  of  the 
State,  to  express  freely  my  convictions  upon  this  or  any 
other  subject,  in  or  out  of  this  body.  I  can  look 
around  here  on  some  gentlemen  who  I  supposed 
would,  under  any  circumstances,  have  stood  by  me, 
and  perhaps  they  will  stand  by  me  yet.  I  was  about 
to  address  an  argument  tq  them  on  the  subject,  but  I 
will  wait  until  the  issue  is  made. 

The  committee  have  proposed  that  you  keep  your 
faith — that  you  be  not  guilty  of  a  breach  of  public 
trust — that  you  do  not  engage  in  a  course  which  shall 
protract  ihis  debt,  endanger  Us  eventual  payment,  and 
encumber  the  people  with  interest  and  taxes.  Do  we 
desire  in  order  to  pay  this  sum  to  take  the  most  expen- 
sive scheme  ?  Are  we  so  greedy  to  get  a  dollar  to  spend 
to-morrow — is  it  so  necessary  to  pension  dependents, 
reward  followers,  and  purchase  numerical  major- 
ities, that  we  will  allow  this  extra  interest  of  ten  mill- 
io  >s  to  become  a  burthen  upon  I  e  public  works?  I 
believe  there  are  some  other  schemes — one  to  pay  this 
debt  by  applying  to  the  joint  debt  $1,500,000  per  an- 
num. This  is  a  joint  stock  concern,  and  its  deficits 
are  abundantly  large.  I  shall  content  myself  with 
saying,  that  they  setup  to  15,  16,  13  and  12  millions. 
These  are  the  deficits  to  be  from  time  to  time  provi- 
ded, and  the  extra  interest  on  them  amounts  to  $19,- 
451,113,49.  This  enormous  s-um  is  to  be  paid  to  get 
money  to  spend,  because  in  all  these  calculations  the 
same  debt  is  eventually  to  be  paid,  and  the  revenue 
for  the  same  time  would  be  the  same.  By  paying 
these  large  deficits  you  get  a  few  six-pencesto  spend, 
instead  of  getting  the  debt  out  of  the  way  and  having 
large  dollars  to  spend.  That  is  the  effect  of  it.  I 
have  compared  some  of  these  schemes  with  one 
another,  and  intended,  although  I  am  not  very  able 
to  do  it,  to  read  them  now,  and  to  bring  them  in  con- 
trast more  fully  than  I  have  done.  Gentlemen  at  their 
leisure  can  compare  for  themse  ves.  They  will  pur- 
chase a  delay  by  these  several  propositions;  and  if 
they  think  the  people  of  the  State  ought  to  make  such 
a  purchase  let  them  say  so.  I  believe  they  ought  not 
and  that  we  ought  to  resist  any  attempt  at  such  a  pur- 
chase. 

Painful  as  it  must  be,  I  must  read  you  an  abstract 
of  the  statements  showing  the  practical  workings  of 
these  various  schemes  of  payment : 


1097 


In  each  year. 

Sinking  Fund. 
$1.500,000 
36years  and  9  months 

Sinking  Fund. 
10  1-12  yrs  1.500,  01  K) 
15.12,000,000 

Sinking  Fund. 
$1,  695,  000 

Sinking  Fund. 
$2,000,000 

36  years  9  months. 

Ayrault. 
25  years  &  7  months. 

Bouck  united. 
26  years  &  1  month. 

Committee  united. 
18  years  &  7  months. 

1846  

Deficiencies 
526,260  56 

Deficiencies 

526,260  56 

Deficiencies 
461,260  50 

Deficiencies 
359,593,90 

1847       .... 

330,316  75 

330,316  75 

66,416  75 

*346,349,90 

1848  

]:-!'.»    

2,025,166  25 
3,887,782  92 

2,025,166  25 
3,887,7H2  92 

1,  550,  432  26 
3,189,564  89 

807,899,61 
2,097,480  28 

ISf.O    

1851   

4,033,584  75 
5,434,064  68 

4,033,584  75 
5,434,661  G8 

3,098,473  64 
4,248,446  90 

1,635,863  95 
2,393,080  63 

1852  

5,590,641  96 

5,590,641  96 

4,138,251   11 

1,866,562  87 


1854       .... 

5,260,957  88 
5,423,242  75 

5,260,957  88 
5,423,242  ~5 

3,526,423  58 
3,389,636  40 

813,434  04 
208,867  47 

1855  

5,052,514  72 

5,052,514  72 

2,701,891  98 

*974,723  08 

185(3  

9,  157,438  59 

9,098,500  63 

6,470,778  49 

2,268,566  53 

1857   

8,777,723  21 

8,215,248  97 

5,734,863  50 

975,518  82 

1858  

11,495,597  67 

10,399,374  98 

8,075,166  38 

2,725,261  02 

1859  ...... 

11,345,991  56 

9,683,995  51 

7,525,334  39 

1,549,434  71 

I860   

12,203,737  58 

9,942,021  77 

7,958,840  98 

1,319,387  33 

1861   

15,339,746  44 

12,442,327  69 

10,645,156  05 

3,302,335  18 

1862   
1863       .... 

16,772,117  73 
16  307,931  29 

13,200,953  85 
12,022,  -197  58 

11,600,851  91 
10,631,389  52 

3,512,461  80 
1,752,696  01 

1864  

16,393,350  42 

11,350,790  08 

10,181,216  14 

464,801  02) 

1865  

15,906,491  45 

10,061,378  J2 

9,126,629  11 

1,313  01  -f 

1866  
1867  
1868  

15,360,880  94 
14,782,533  80 
14,169,485  83 

8,665,060  81 
7,  184,964  46 
5,616,062  33 

7,979,226  85 
6,762,980  40 
5,473,759  28 

on  31  Dec.  1864  ) 

1869       .... 

13,519,654  98 

3,953,026  07 

4,107,184  84 

• 

1870   

12,830,834  28 

2,190,207  63 

2,658,615  92 

1871  .. 

12,100,681  34 

321,620  0!) 

1,123,132  88 

1872  

11,326,725  40 

on  1  Jan.  1872  > 

Surp.  97,  576  15  ? 

1873  

10,506,328  92 

Surp.   173,555  61  $ 

on  1  July  1872  \ 

1874  

9,636,708  66 

1875  

8  714  911   18 

1876  

7,737,805  85 

1877  

6  702  074  20 

1878  

5,604,  198  65 

"Surplus. 

1879  

4,440,450  57 

3  206  877  60 

1881         ... 

1  899  290  26 

1882  
1  Mar.  1883 

513,247  68 
Surp.  98,921  13 

35,  584  965  3t 

4            35,  584,  965  36 

35,  584,  965  38 

35  5y4  965  38 

Int.  on  deiicicnc 

19,441,113  4J 

>            10,366,479  01 

8,528,708  47 

1,583,014  32 

$55,026,078  8r 

= 

'          $15,951,444  39 

$44,113,673  85 

$37,167,979  70 

Worse  than  the  plan  of  the  committee  to  the  amount  of 
I         $17,858,099  17     |          $8,783,464  69 


$6,945,694  15 


NOTE.— $1,400,000  and  400,000  is  worse  thau  the  committee  by  $4,876,687.99. 
Vide  B2,  Con.  Doc.  No.  47—1,400,000  for  time  and  particulars. 

[The  amount  of  debt  to  be  paid  is  $35,584,965.38.  The  1st  column  in  the  preceding  tahle  shows  the  de- 
ficiencies there  would  be  in  each  year,  in  paying  the  debt  as  it.  falls  due,  if  a  sinking  fund  of  only  $1,500,000 
was  annually  set  apart  for  the  payment  of  principal  and  intcrtst.  The  2d  column  shows  the  deficiencies  on  a 
sinking  fund  of  a  million  and  a  half  for  ten  years,  and  two  millions  thereafter,  as  proposed  by  Mr.  Ayrault. 
The  3d  column  shows  the  annual  deficiencies  on  a  sinking  fund  of  $1,695,000,  as  proposed  by  Gov.  Bouck. 
The  4th  column  shows  the  operation  of  the  plan  of  the  committee.  In  paying  the  debt  whh  a  sinking  fund  of 
$1,500,000,  the  interest  on  the  deficiencies  would  be,  as  shown  at  the  foot  of  the  h'rst  column,  $19,441,113  49 
Interest  on  deficiencies  in  Mr.  Ayrault's  plan, 10,366,479  01 


Gov.  Eouck'splan, 8,528', 708  47 

plan  of  committee 1,583.014  32] 


\\ill  the  Convention,  could  they  ask  this  stand- 
ing committee  with  any  regard  to  the  duty  of  the 
State,  to  adopt  any  less  sum  than  the  one  they 
have  recommended'?  It  pays  the  debt  within  the 
period  for  which  its  faith  was  pledged,  and  reduces 
the  delicits  to  a  sum  so  small,  that  they  can  be 
managed  with  safety..  It  observes  good  faith  to  the 
creditor  and  saves  the  citizens  from  the  expenses 

112 


01  millions.  And  if  the  standing  committee  could 
not  in  the  sight  of  man  bo  justified  in  recommend- 
ing a  less  sum,  how  will  you,  who  are  here  as  a 
committee  of  the  Convention,  desire  to  make  your- 
selves equal  to  what  the  standing  committee  were 
morally  forbidden  to  do.  I  hope  1  have  sufficiently 
vindicated  the  position  of  the  committee  in  saying 
that  $1,500,000  of  the  canal  fund  revenues  should 


1098 


be  taken  in  each  year  to  pay  the  debt  until  it  is 
paid.  I  do  not  pretend  that  the  argument  on  the 
subject  is  finished.  It  is  not  difficult  to  turn  to 
other  passages  in  history  that  would  come  as  the 
scourge  of  Nemesis  to  the  hands  of  any  one  who 
wished  to  inflict  it.  Perhaps  in  the  progres  of  the 
debate  this  matter  may  be  more  distinctly  brought 
to  the  view  of  the  Convention  and  the  country.  I 
believe  I  have  explained  the  only  clause  in  the  sec- 
tion that  could  need  it. 

The  next  question  in  order,  is  what  is  justly  and 
fairly  due  from  the  canals  as  a  system,  to  the  State'? 
For  in  my  opinion  the  State  has  a  right  to  a  return 
of  what  advances  it  has  made,  with  the  fair  and 
usual  mercantile  profit  upon  them  for  the  risk  fairly 
estimated  for  engaging  in  the  work.  Beyond  that 
it  has  no  right,  in  my  judgment,  and  if  it  had,  it  has 
lost  it  by  the  unhappy  manner  in  which  the  account 
for  the  advances  of  the  State  to  these  canals  has 
been  kept.  To  that  extent  I  go  ;  and  I  leave  it  to 
gentlemen  when  they  come  to  view  the  subject,  to 
say  whether  they  can  with  propriety  resist  the 
claims  of  the  State  against  the  canals  to  that  extent. 
It  will  be  seen  that  the  standing  committee  do  not 
intend  that  the  canals  must  pay  the  rail-road 
debt,  the  general  fund  debt,  or  any  thing  of  the 
kind.  They  put  the  question  distinctly  to  the 
Convention,  what  is  the  fair  sum  which  is  due 
to  the  State  for  advances  to  the  canals  as  a  sys- 
tem, and  for  the  risk  of  the  State  for  engag- 
ing in  their  construction.  How  shall  that  account 
be  taken,  and  when  ascertained  1  What  annuity 
shall  the  canals  settle  upon  the  State  in  liquidation 
of  those  claims'?  Neither  in  form  or!in  substance  do 
I  accede  to  the  doctrine  that  the  canal  tolls  shall  be 
taken  for  general  purposes.  I  deny  it.  The  right 
of  way,  I  insist,  is  the  right  of  the  million;  the  sove- 
reign holds  it  in  trust,  and  can  exercise  it  only  for 
their  benefit,  and  has  no  right  to  make  a  revenue 
out  of  it.  This  is  my  opinion.  What  are  the  fair 
actual  advances  made  by  the  State  1  Now  I  say  that 
any  sum  of  money  which  has  gone  into  the  Canal 
fund,  and  which  does  not  proceed  directly  from  the 
canal  revenues,  tolls  or  water  rents,  is  an  advance 
by  the  trustee  having  them  in  charge,  and  should 
justly  be  repaid,  and  with  the  proper  interest.  This 
is  the  position  I  assume,  and  1  beg  leave  to  call  the 
attention  of  the  Convention  to  the  sum,  and  to  ex- 
plain the  manner  in  which  the  result  is  obtained. 
The  first  item  of  these  advances,  as  stated  in  table 
C,  page  44,  Con.  Doc.  No.  47,  is  the  Salt  duty. 
The  Salt  Springs  were  the  property  of  the  State, 
and  the  duties  from  salt  were  devoted  to  the  Canal 
System  in  1817;  and  before  their  restoration  to  the 
Treasury,  amounted  to  $2,055,458.08.  A  question 
has  arisen  whether  this  is  a  fair  charge,  and  I  admit 
that  sophistry  has  exercised  its  ingenuity  to  show 
that  it  is  not.  It  is  said  that  the  canals  have  largely 
increased  the  salt  tax.  Be  that  so.  The  salt 
transportation  has  largely  increased  the  canal  tolls  ; 
but  because  it  has,  is  that  any  reason  why  the  salt 
boiler  should  claim  that  part  of  the  canal  tolls'?  No 
sir.  And  on  the  other  hand,  because  the  canals 
may  have  increased  the  salt  tax,  by  extending  the 
trade,  that  is  no  reason  why  the  salt  tax  should 
belong  to  the  canals.  I  submit  that  this  infinit- 
esimal mode  of  financiering,  by  which  these  two  re- 
rsouces  assert  claims  on  each  other,  which  are  ca- 
epabl  neither  of  computation  xor  of  collection,  is 
absurd,  and  practically  impossible.  The  State  was 


entitled  to  the  salt  tax,  for  it  was  the  tax  of  the 
State.  The  canals  may  have  increased  it,  so  the 
salt  manufacturer  may  have  increased  the  canal 
tolls,  but  neither  has  a  just  claim  against  the  other. 
However  much  the  transportation  of  salt  has  in- 
creased the  tolls,  those  belong  to  the  canals.  And 
however  much  the  sale  of  salt  has  been  extended  by 
the  canals,  the  salt  tax  belongs  to  the  State.  Sir, 
good  faith  is  a  jewel,  and  I  advise  the  canals  not  to 
act  like  a  fraudulent  bankrupt  and  repudiate  the 
debt.  Good  faith  is  a  jewel, — at  any  rate  bad  faith 
is  vile  any  where.  In  1817,  when  about  to  enter 
upon  the  construction  of  the  canals,  the  committee 
of  ways  and  means  of  the  Assembly  addressed  them- 
selves directly  to  Mr.  Clinton,  then  chairman  or 
president  of  the  Board  of  Internal  Improvements  or 
Navigation,  on  the  subject  of  a  finance  system  for 
the  canals.  That  gentleman  gave  them  advice  on 
this  subject, — that  this  salt  tax,  this  auction  tax  and 
the  like,  should  be  taken  from  the  State,  and  given 
to  the  Canal  fund,  and  that  advice  was  adopted.  He 
promised  that  in  due  season,  and  in  a  short  period, 
the  salt  and  auction  tax  should  be  restored  to  the 
State  by  the  canal  tolls.  Sir,  that  great  man  is  no 
more  among  us,  but  did  he  believe,  when  he  made 
this  engagement,  that  after  all  he  predicted  has  ta- 
ken place,  there  would  be  a  human  being  on  earth 
who  would  come  forward  and  say  that  what  he  pro- 
mised, should  not  be  performed'?  No  sir.  Let  no  such 
thing  be  believed.  You  did  promise  to  the  people 
who  assented  to  that  law,  the  restitution  of  those 
funds,  and  this  was  distinctly  one  of  the  reasons 
why  they  went  for  that  bill.  Good  faith  is  a  jewel, — 
let  us  abide  by  our  word :  We  said  that  these  taxes 
should  be  restored — let  it  be  done.  In  1S25,  when 
the  canals  were  completed,  the  gentleman  from 
Dutchess  (Mr.  TALLMADGE)  was  one  of  the  Fund 
Commissioners,  as  Lieut.  Governor  of  the  State' 
and  so  was  the  present  Secretary  of  War.  These 
commissioners  took  up  this  very  subject,  discussed 
it,  and  then  renewed  in  the  strongest  and  most  di- 
rect terms,  the  engagements  of  1817.  They  pro- 
mised the  restoration  of  these  taxes.  In  1830,  this 
subject  came  before  the  Canal  Board,  a  computa- 
tion was  then  made  of  these  arrearages,  the  claim 
of  the  State  was  distinctly  asserted  and  maintained, 
that  in  fairness  and  fact  the  salt  tax  should  he  re- 
stored— and  that  the  interest  on  it  be  compounded. 
They  estimated  the  very  items  down  to  that  time 
and  compounded  the  interest  on  them  at  the  rates 
now  charged.  In  1838,  the  ground  was  maintained 
in  full  force,  and  it  was  asserted  that  the)  general 
fund  existed  in  the  canal  revenues, — it  was  the  doc- 
trine upon  which  the  then  administration  continued 
to  act.  I  wish  then  to  know  whether,  while  the 
people  look  to  this  as  a  source  of  income  to  free  them 
from  direct  taxes,  it  is  honorable  or  honest  to  con- 
tend that  the  salt  tax  or  the  auction  tax  ought  not 
to  be  restored  1  I  deny  the  moral  right  of  this  Con- 
vention to  repudiate  these  promises  upon  which  all 
men  have  relied.  In  my  judgment,  therefore,  the 
Salt  tax  and  the  Auction  tax,  with  the  interest  on 
them  fairly  compounded,  is  a  just  charge  against 
the  Canal.  So  with  the  land  sales.  I  know  that 
some  of  these  lands  were  given  by  private  donation 
to  the  canals,  and  to  the  amount  of  $32,240,  they 
ought  to  have  been  allowed  in  this  account.  But 
even  this  had  been  more  than  made  up  to  the  ca- 
nals. The  preliminary  surveys  of  them  were  paid 
by  the  State— to  the  amount  'of  $42,957,— that  is 


1099 


10,717  more  than  the  donations  to  the  Canal  fund 
Lands  have  also  been  given  by  the  State  from  tin 
general  fund  to  the  Oswcgo  canal,  the  sales  o 
which  brought  $2 1*1,087.  So  that  the  land  sales  art 
in  fact  charged  at  $223.804  less  than  they  ought  tc 
have  been.  As  to  the  other  items  in  this  account 
no  honest  man  who  is  willing  to  pay  for  money  bor 
rowed  in  an  emergency  can  hesitate  about  them 
Credit  for  all  the  canals  has  paid  has  been  given 
The  items  charged  will  be  found  in  Con.  Doc.  No 
•17.  p.  44,  tablcG  . 

For  the  salt  tax $2,055,458  06 

the  auction  tax 3,592,039  05 

the  land  sales 103,755  18 

the    steam-boat  tax 73,509  99 

money  paid  for  lateral  canals      1,386,498  88 
£  mill  tax 280,563  58 


$7,491,824  7 

If  simple  interest  at  5  per  cent  be 
calculated,  deducting  from  time  to 
time  the  sums  refunded  by  the  ca- 
nals, there  will  be  added  for  interest  3,796,973  9, 


Making— due  the  Stale $11, 278,798  7^ 

But  if  the  same  deductions  be  made 
and  the  interest  be  compounded  at  5 
cent  yearly — there  will  be  due  to  the 

State $13,451,167  7 

as  the  proper  basis  of  the  State  annuity — and  at  5 
per  cent  on  this  sum  the  annuity  would  be — $672, 
558  38 — or  in  round  numbers  $672,500. 
The  argument  used  by  the  Canal  board  in  1830,  in 
favor  of  the  items  and  the  mode  of  computing  inte 
rest,  appears  to  uie  conclusive.  If  these  taxes  had  not 
gone  to  the  Canal  fund,  money  must  have  been  bor 
rowed  instead  of  them,  and  the  rates  of  interest 
would  have  been  calculated  at  5£  or  6  percent  quar- 
terly, and  that  compounded  quarterly  in  effect,  and 
not  as  has  been  done  here,  compounded  yearly  at 
5  per  cent  only.  As  the  State  paid  quarterly  inte- 
rest to  supply  the  deficit  caused  by  the  diversion  of 
those  revenues,  it  is  right  to  compute  the  interest 
compounded  yearly.  It  could  not  force  a  settlement; 
it  could  only  compound  interest  for  delay.  I  insist 
that  the  account  made  out  is  fair  and  ought  to  be 
allowed.  The  same  principle  has  been  recognized 
in  this  matter  from  the  beginning—in  1817,  in  1SLT), 
in  1830,  in  1835,  and  in  183H."  Therefore  in  cal- 
culating the  annuity  due  to  the  General  Fund,  the 
committee  have  concluded  that  in  round  numbers 
$672,500,  is  about  the  just  annuity  against  the  ca- 
nals.* Not  that  the  canals  should  pay  the  State 
debt  or  the  rail-road  debt,  but  that  they  should  pay 


*  The  section  of  the  report  of  the  standing  commit- 
tee which  proposed   this  settlement  is  as  follows: 

§  2.  In  liquidation  of  the  State  claims  for  advances 
to,  and  payments  for,  the  canals,  [$673,5tiQJ. six  hun- 
dred and  seventy  two  thousand  and  live  huinirer] 
dollars  of  the  revenues  of  the  said  canal- 
forever,  in  each  fiscal  year,  and  at  that  rate  for  a 
shorter  period,  commencing  on  the  fim  day  of  June, 
one  thousand  eight  hundred  and  forty-six,  be  paid  in- 
to the  Treasury  for  the  use  of  the  State  ;  and  if  the 
payment  of  that  sum,  or  any  pan  thereof,  shall  be  de- 
layed by  reason  of  the  priority  established  in  the  pre- 
ceding section,  the  amount  so  delayed,  with  quarterly 
interest  thereon,  at  the  then  current  rate,  shall  he 
so  paid  out  of  the  said  revenues  as  soon  as  can  be 
done  consistently  with  such  priority. 


their  legitimate  debt  to  the  State.  Pay  that,  and  so 
far  as  the  committee  is  concerned,  all  that  is  asked 
is  done. 

There  is  no  reason  why  the  claim  should  be  re- 
duced, but  several  why  it  might  very  justly  be  in- 
creased, both  as  to  the  items  and  the  rate  ofinterest 
on  them.  On  long  loans  the  State  usually  paid  5£ 
per  cent  quarterly,  which  is  nearly  equal  to  6  per 
cent  yearly — and  on  short  loans  it  usually  paid  6 
per  cont  half  yearly.  The  diversion  of  these  reve- 
nues to  the  canals,  obliged  the  State  to  borrow  equi- 
valent sums  at  6  per  cent  half  yearly— and  in  no 
way  could  these  monies  have  been  borrowed  for  the 
canals  at  less  than  5|  per  cent  quarterly — in  effect 
by  new  loans  compounding  the  interest.  These 
revenues  too  gave  its  best  credit  to  the  canal  fund 
and  enabled  it  to  obtain  credit  on  the  most  favora- 
ble terms.  In  many  cases  too,  items  fairly  charge- 
able to  the  canals  have  been  omitted.  And  I  de- 
sire to  call  the  attention  of  the  committee  to  the  fact 
that  in  the  legislative  efforts  to  increase  the  canal 
revenues  by  bounty,  the  General  fund  has  been  de- 
prived, up  to  the  30th  of  September  last,  of  $377,- 
180,  collected  for  that  fund  by  direct  taxation  ;  and 
that  from  time  to  time  special  appropriations  for  ca- 
nal purposes,  in  the  whole  amounting  to  about 
$130,281,  have  been  paid  by  the  General  fund  for 
the  canals  which  have  never  been  charged  against 
them. 

A  few  days  since  the  gentleman  from  Ontario,  (Mr. 
Worden,)  supposed  that  the  Legislature  had  always 
acted  ve  y  properly,  and  I  ask  him  whether,  in  the  par- 
ticular instance  to  which  I  am  about  to  allude,  there 
was  any  propriety  in  their  conduct.  Direct  taxes 
were  provided  by  act  of  1812,  for  the  General  Fund, 
and  the.  Legislature  in  1843  found  it  more  convenient 
to  fornjre  on  the  act  of  18-12,  and  eet  $300,000  to  pay 
canal  eonirictors,  lhan  to  levy  it  in  any  other  way. 
While  the  General  Fund  was  increasing,  although  it 
had  direct  taxes:  to  aid  it,  the  Legislature  passed  an 
act  with  one  of  those  exquisiiely  moral  titles,  which  so 
clearly  express  the  intention  of  the  act.  It  was  de- 
scribed as  ;t  proposition  ''for  improving  the  revenues 
of  the  Srai.e."  Now  as  to  the  manner  of  improvement. 
While  the  General  Fund  debt  was  aecumulating,while 
the  treasury  was  being  replenished  by  direct  taxes,  the 
Legislature  directed  n  bounty  to  be  paid  on  salt,  coal, 
gypsum,  and  I  believe  empty  barrels  transported  on  the 
;aiial,  nut  of  the  Gene. ml  Fund, Ho  contribute  to  which 
he  people,  were  every  day  paying  direct  t^xes,  and  un- 
I'T  that  law  the  ,§377,281  which  the  people  had  paid 
nto  the  treasury  by  direct  taxes,  ha«  gone  as  a  bounty 
<>  ihe  general  transportation  on  the  canal.  If  this  did 
mprove  'ho  revenues  of  the  fjtnte,  then  1  submit  that 
Jus  money  ought  to  be  charged  to  the  canals,  asaidgiv- 
MI  by  direct  taxation  to  them.  The  purport  of  the  act 
was  to  ta.ko  it  out  of  tlio  salt,  tax,  but  in  effect,  in  sub- 
;i:uiff,  it.  was  taken  out  of  direct  taxes.  If  all  that 
VHS  fair  arid  honest,  {  say  nothing  against  it  except  that 
t  is  fair  to  charge  it  ntrainst.  the  Canal  Fund,  and  just 
is  fair  as  any  of  the  other  canal  charges,  for  it  did  in- 
•iras.-  the  canal  revenues.  The  State  lost  nothing  if 
t  troes  to  pay  thedebl,  perhaps  it  makes  now  part  of  the 
•  upposed  .surplus,  hut  J  have  not  been  able,  with  the 
riost  iiheral  views,  to  believe  such  a  course  to  be  coti- 
istent  with  good  morals,  either  public  or  private. 

Mr.  Worden — When  was  that  law  passed? 

Mr.  Hoffmsui — In  1843.  I  believe  the  gentleman hrul 
10  part  in  that  law.  1  do  not  know  that  he  ever  voted 
;>r  any  act  "  to  improve  the  revenues  of  the  State."  I 
elieve  he  has  for  several  to  increase  the  debt.  But  [ 
ave,  on  this  occasion,  hoped  that  he  would  vote  with 
ie  to  try  and  get  the  debt  paid. 

f  have  no  doubt  that  certainly  half  a  million  and  more 
light  be  justly  charged,  If  these  items  were  taken 


1100 


into  the  account,  and  the  same  rate  of  interest  which 
the  State  has  paid,  and  the  canals  must  have  paid,  if 
the  money  had  been  borrowed  directly  from  them  were 
calculated,  the  basis  of  the  annuity  would  have  been 
enlarged  a  million  or  more.  I  do  not  desire  to  increase 
the  amount  ;  but  there  are  strong  reasons  why  it  should 
not  be  diminished. 

1  do  not  stop  to  inquire  whether  the  canals  can  pay 
these  sums  or  not ;  they  are  just  debts,  and  should  be 
paid  if  possible.  If  they  are  deferred,  then,  it  is  pro- 
vided in  the  second  section  that  the  canals  shall  pay 
quarterly  interests  at  the  then  current  rates.  I  sup- 
pose that  it  will  be  said  that  the  canals  will  not  be  able 
to  pay  these  sums  of  money.  Does  any  gentleman 
•suppose  that  any  larger  expenditure  upon  them  will 
be  required  than  what  the  committee  have  authorized 
if  they  cannot  pay  ?  If  they  will  not  pay  what  is  al- 
ready chargeable  upon  them,  then  I  apprehend  no  fur- 
ther expenditure  will  be  made  upon  them  than  is  ne- 
cessary to  keep  them  in  a  useful  condition.  But  if 
they  can  pay,  I  wish  to  know  whether  you  will  leave 
them  not  to  pay  the  State,  and  say  to  the  Legislature, 
you  shall  tax  the  constituent  body  to  pay  the  debt  and 
State  expenses,  because  we  will  not  take  from  the  ca- 
nals what  is  due  from  them  to  the  State?  For  in  one 
way  or  the  other  the  State  debts  and  the  State  current 
t  xpenses  must  be  met.  If  the  canals  should  unfortu- 
nately prove  insufficient  to  meet  these  charges,  they 
will  be  deferred,  and  when  the  tolls  are  sufficient  to 
pay  them  they  will  be  paid  to  the  State.  That  is  the 
provision  of  the  second  section,  and  if  either  of  those 
sinking  funds  prove  insufficient,  then  the  taxing  power 
of  the  State  is  to  be  brought  into  requisition  to  make 
them  sufficient,  and  any  such  sum  so  advanced  is  to  be 
reimbursed  out  of  the  canal  tolls,  if  ever  these  are  ade- 
quate. 

It  will  be  seen  that  so  far  I  have  not  argued  the  ques- 
tion upon  the  ground  that  the  canals  can  do  this,  but 
solely  on  the  ground  that  it  is  their  duty  to  pay.  This 
enables  me  to  close  all  the  observations  I  have  felt  it 
my  duty  to  make  on  this  part  of  the  subject. 

I  now  come  to  the  consideration  of  the  3d  section  of 
this  plan,  and  it  involves  very  serious  questions,  and 
on  which  perhaps  I  shall  be  obliged  to  occupy  conside- 
rable time. 

Mr.  Hoffman  here  read  the  following  : 

SEC.  3.  The  surplus  of  the  revenues  of  the  canals, 
after  paying  the  said  expenses  of  the  canals  and  the 
sums  appropriated  by  the  two  preceding  sections,  shall 
in  each  fiscal  year  be  applied  to  the  improvement  of  the 
Erie  canal,  in  such  uianner  as  may  be  directed  by  law, 
until  such  surplus  shall  amount  in  the  aggregate  to  the 
sum  of  [$2,500,000]  two  millions  and  five  hundred 
thousanddollars. 

The  charges  now  proposed  to  be  fixed  on  the  canal 
revenues,  say, 

For  ordinary  expenses, $600,000 

For  the  canal  debt, 1,500,000 

For  the  State  annuity  in  liquidation  of  past 

advances, G72,500 


Making  together  a  yearly  charge  of $2.772.500 

Will  there  be  any  surplus  of  canal  revenues ''.  This 
raises  the  question  as  to  what  are  and  what  have  been 
the  canal  revenues,  and  what  will  they  probably  be  for 
a  course  of  years  to  come — what  capacity  has  the  ca- 
nals, and  how  far  this  sum  of  $2,500,000  may  be  ren- 
dered necessary  to  add  to  the  capacity  of  the  canals.  I 
could  write  a  book  upon  such  a  subject,  and  find  a  dif- 
ficulty to  compress  my  remarks  upon  it.  I  ought,  be- 


fore I  proceed,  to  call  attention  to  the  difficulty  which 
lies  in  the  matter,  and  which  to  some  seems  not  to 
have  occurred  with  reference  to  the  several  laws  autho- 
rizing the  State  debt.  I  find  that  in  general  the  canal 
creditors  have  had  both  general  and  specific  liens  upon 
the  canal  fund.  All  of  them,  so  far  as  1  can  recollect, 
and  I  believe  every  one  of  them,  unless  it  may  be  for 
the  last  $300,000  debt,  are  entitled  to  a  priority  in  this 
fund  over  the  State  or  any  other  creditor.  This  is  a 
reason  why  none  of  these  joint  stock  projects  for  pay- 
ing off  this  debt  can  be  carried  into  effect.  You  must 
cteate  two  sinking  funds,  and  give  the  canal  debt  pri- 
ority, and  take  the  residue  to  pay  the  State  the  claim 
of  which  must  be  regarded  as  subordinate.  In  draw- 
ing up  estimates  of  the  joint  operation  of  any  one  of 
these  propositions,  the  committee  did  not  mean  to  have 
it  supposed  that  any  such  proposition  could  be  adopted, 
and  when  I  come  to  that  part  of  the  report  relating  to 
the  State  General  Fund  debt,  I  shall  have  something 
more  to  say  in  relation  to  the  several  and  joint  opera- 
tion of  the  different  sums  proposed  as  a  means  of  pay- 
ment. This  question  as  to  the  future  revenues  of  the 
canals,  like  all  others  that  lay  in  conjer-ture,  must  be 
determined  upon  principles  of  rational  probability. 
Different  minds  will  come  to  different  results  in  rela- 
tion to  it.  I  have  said  in  view  of  all  surrounding  cir- 
cumstances, that  1  believe  that  the  canal  tolls  will  con- 
tinue their  usual  increase  for  the  next  eight  or  ten 
years,  and  that  in  that  period  they  will  probably  begin 
to  culminate,  and  require  reduction  in  the  rates  to 
compete  for  business,  and  the  largest  aggregate  reve- 
nue. The  question  then  arises,  will  there  be  any  sur- 
plus ?  The  revenue  of  1846,  ascertained  to  the  22d  of 
July,  is  $ 2,550,000  and  a  fraction,  and  estimating  the 
remainder  of  the  year  according  to  what  was  received 
in  1845,  the  accruingjrevenues  should  be  $2,757,178.08. 
According  to  the  scheme  of  the  committee,  there  will 
be  wanted  for  expenses  on  the  canals,  $600,000  ;  for 
the  canal  debt,  $1,500,000,  and  for  the  State  annuity, 
$672,500.  This  will  make  an  aggregate  of  $2,772,500, 
and  it  would  be  $14,000  more  than  the  income  for  the 
present  year  by  estimate.  But  it  is  now  ascertained 
that  these  revenues  for  this  fiscal  year  will  exceed  $2,- 
775,000.  They  will  exceed  the  proposed  charges  on 
the  canals  by  some  2,000  dollars.  I  shall  therefore 
view  them  as  coming  to  one  and  the  same  result.  The 
wants  as  proposed  by  the  committee,  and  the  actual  re- 
venue would  be  about  the  same,  or  at  any  rate  would 
not  differ  to  an  amount  worth  naming,  the  tolls,  per- 
haps, being  a  li  tie  in  excess.  I  have  tables  of  the  past 
increase  of  the  canal  revenues.  The  actual  tolls  in 
each  year  are  given  in  Con.  Doc.  No.  47,  p. '48,  table  I. 
down  to  1845.  The  tolls  in  1836  were  unusually  high, 
insomuch  that  they  fell  off  considerably  in  succeeding 
years,  yet  comparing  a  series  of  ten  years  with  the  year 
1S36,  and  taking  the  actual  tolls  as  they  came  in,  to 
1845  inclusive,  and  averaging  them  so  as  to  suppose 
an  equal  sum  of  increase  for  each  year  over  that  of 
1836,  and  the  common  difference  in  an  arithmetical 
series,  would  be  $48,274  81-100  over  the  tolls  of  1836. 
It  is  a  very  low.and  the  lowest  mode  of  estimating  these 
future  sin plusses.  There  is  another  mode  of  estimating 
them,  and  that  is  as  the  tolls  have  for  the  last  ten  years 
Increased  3.02-100ths  per  cent  on  those  of  1836  ;  to  as- 
sume that  they  will  in  the  ten  years  to  come,  increase 
nt  the  same  rate  on  those  of  1846.  The  basis  of  these 
modes  is  exhibited  in  the  table  of  the  actual  canal  re- 
venues from  1836  to  1845,  both  inclusive,  which  I  now 
read  : 


1101 


ACTUAL  CANAL  REVENUES. 


1836 

1H37 

1840 
1S11 
1H4-J 
1843 
l»44 
1845 


Tolls,  &c. 


,598, 
,325, 
,465, 
,655, 
,606, 
,989, 
,797, 
,953, 

2,375, 


455  48 
609  77 
27$  Hi 
783  56 
827  28 
(Mi  71 
•163  80 
829  08 
457  34 
533  43 


18,156,921  61 


Actual  differences. 


Increase. 


139,665  39 
190,508  40 


382,859  43 


156,365  28 
434,628  26 


1,304,026  76 


Decrease. 


272,845  71 


48,956  28 
1 9^2:22  *9i 


12,923  91 


520,948  81 


CONTINUATION  OF  TABLE. 


Year. 


1836 

]  837 
1838 

1840 
1841 
1842 

1813 
1JM4 


Common  Piff. 


48,274,818 


Arithmetical  se- 
ries of  tolls. 


1,598,455, 

1,04(5,730, 

,695,005, 

,743,279, 


,791,554 
, 839, 829 
,888,104 
,936,379 
i  084,654 
,032,928 


48-0 

29-y 

11-6 
93-4 
75-2 
57-0 

38-8 
20-6 
02-4 

84-2 


18,156,9:21.01-0 


In  the  series  &f  fen  years  the  increase  is  equal  to 
3  02-lOOths  per  cent  lor  each  year  on  the  tolls  of  Ifc30, 
the  lir.st  year  of  the  series. 

Un  tolls  of  1836  to  1845,  10  years,  common  differ- 
ence $48,274,81 8.  Rate  per  cent  3  02-iO()ths. 

I  give  you  now  the  result  of  these  two  modes  of 
computation,  and  of  another  beginning  with  the 
lowest.  Commencing  a  series  of  ten  years  imme- 
diately after  the  present  fiscal  year,  and  the  com- 
mon difference  would  be  $48,271  81  cents  at  that 
rate.  Coniinuing  it  for  five  years,  the  total  reve- 
nue from  1847  to  1851  inclusive,  would  be  $14,510,- 
012.67.  Deduct  from  this  the  amounts  the  commit- 
tee have  stated  as  the  charges  on  the  canals,  that  is 
five  times  $2,772,500,  equal  to  $13.862,500,  and  it 
would  leave  for  these  five  years  the  small  surplus  of 
$647,512.67.  If  the  same  mode  of  computation  be 
continued  until  1856,  that  is,  for  ten  years,  the  sur- 
plus would  amount  in  these  ten  years  to  $2,501,895 
and  76  cents.  Or  more  accurately,  taking  (he  canal 
revenues  of  1846  as  equal  to  the  charges  on  them, 
and  they  will  to  some  small  amount  exceed  the 
charges,  and  converting  the  common  difference, 
,sK 271.81,  into  a  series  in  arithmetical  progres- 
sion for  ten  terms  or  years,  the  first  term  would  be 

$48,271  81 
The  last  in  10th  term,  ten  times  that  sum,  482,718  10 

The  sum  of  the  two  extremes $530,989  91 

Multiplied  by  half  the  number  of  terms,. .  5 


Surplus  in  ten  years, $2,654,949  55 


Mr.  Worden — Are  these  results  the  same  as  given 
by  the  Comptroller  ? 

Mr.  HolTman— I  believe  not.  The  call  on  the 
Comptroller  prescribed  the  rule  by  which  he  should 
estimate.  He  computes  by  the  same  common  dif- 
ference, but  he  was  directed  to  commence  with  and 


include  1846,  which  I  exclude.  In  the  two 
first  results  I  have  given,  I  estimate  on  the  reve- 
nues of  1846,  as  ascertained  in  part  by  estimate, 
making  them  only  $2,757,178.08,  when  in  fact  they 
will  amount  to  $2,775,000;  and  instead  of  falling 
short,  will  a  little  exceed  the  proposed  charges  on 
them.  In  the.  mode  I  last  gave,  estimating  merely 
by  the  common  difference,  I  avoid  this  error,  be- 
cause this  mode  assumes  that  the  tolls  of  1846  were 
equal  to  the  proposed  charges. 

If  we  assume  the  second  mode  of  estimating  these 
surpluses,  that  is,  that  the  Revenues  will  for  a  series  of 
10  years,  commencing  with  those  of  1846 — increase 
3  02-100  per  cent — then  the  common  difference  taking 
the  tolls  of  184G  as  above  stated,  in  part  from  esti- 
mate $2,757,178.08,  would  be  $83,266.78— but  on  the 
actual  tolls  as  now  ascertained,  it  would  be  somewhat 
higher.  Disregarding  this  error  as  immaterial,  and 
the  surpluses  would  lie — 

For  5  years  from  1847  to  1851, $1,248,401 

For  10  years  from  1847  to  1856, 5,579,672 

This  mode  of  estimating  the  future  surpluses  ap- 
pears to  me  the  most  probable,  and  produces  rssults 
most  in  accordance  with  past  experience-^  It  suppo- 
ses the  revenues  of  1846  equal  to  the  proposed  charges 
on  the  canals,  when  in  fact  they  exceed  these  char- 
ges, and  takes  a  common  difference  from  the  tolls  of 
1846,  ascertained  to  June  and  estimated  from  that 
time,  which  it  is  now  ascertained,  gives  less  than  they 
actually  are  as  above  staled.  But  this  mode  of  esti- 
mate supposes  that  we  can  for  ten  years  keep  up  our 
present  rates  of  toll,  and  yet  secure  our  usual  increase 
of  business.  In  the  estimate  of  the  committee  of  Ways 
and  Means  in  the  Assembly  of  1838,  of  which  Mr. 
RUGGLES  was  chairman.  Assembly  Doc.  No.  242 — it 
is -assumed  that  these  revenues  would  become  station- 
ary, and  not  increase  after  1849,  when  they  would 
reach  $3,000,000  after  deducting  expenses.  The 
bankruptcy  at  the  south-west,  the  civil  dissetitions  in 
the  Canadas  to  which  I  have  alluded,  the  general 
embarrassment  which  lias  injuriously  affected  the  con- 
struction of  Railroads,  have  delayed  to  a  considerable 
extent  the  then  expected  competition  with  our  canals, 
and  I  incline  to  the  opinion,  that  we  shall  not  reach 
this  culminating  point  in  some  8  or  10  years,  though  I 
think  the  rate  of'increase  was  taken  onsomewhat  too 
high  an  expenditure.  If  we  take  from  the  commit- 
tees proposed  charges  on  the  canals  the  $000,000 
for  ordinary  repairs,  we  may  adopt  as  a  third  mode 
of  estimating  our  probable  surpluses,  the  nett  reve^i- 
ues  siated  by  the  committee  of  1838,  and  they  would 
give — 

For  5  years  from  1847  to  1851, $3,237,500 

And  tor  10  years  from  1847  to  1856,  ....     7,375,000 

By  a  rough  general  average  of  these  various  modes 
of  estimate,  it.  seerns  entirely  probable  that  these  sur- 
pluses in  G  or  7  years  will  exceed  the  $2.500,000  pro- 
posed in  the  3d  section  to  be  exclusively  appropriated 
to  the  improvement  of  the  Erie  Canal,' and  that  it  is 
reasonable  to  suppose  that  they  will  exceed  five  mill- 
ions in  the  next  ten  years.  Beyond  that  period,  1  am 
not  disposed  to  indulge  in  the  luxury  of  estimating 
surpluses. 

In  any  event  it  see  ins  right  to  say  that  there  will  be 
cancl  surpluses  in  5,6  or  7  years,  equal  to  the  $2,500,- 
000,  contained  in  the  3rd  section.  From  past  experi- 
ence and  under  existing  and  probable  circumstances 
if  can  scarcely  be  doubted  and  cannot  be  disputed. — 
Well  suppose  there  is  not,  then  there  can  be  no  in- 
crease of  canal  business,  because  the  present  revenue 
runs  a  little  beyond  the  wants  of  the  canals  as  the 
committee  have  fixed  them,  in  the  sums  for  ordinary 
repairs,  and  to  pay  the  canal  debt,  and  the  annuity  to 
the  State.  They  have  fixed  the  sum  a  little  below  the 
canal  revenues,  and  if  there  is  any  increase  in  the 
canal  transportation  or  business,  it  must  bring  with  it 
a  surplus  of  tolls.  Either  there  will  be  no  increase  of 


1102 


business  and  no  occasion  for  canal  improvements,  or 
the  increase  of  canal  transportation  must  bring  these 
surpluses  as  fast  and  as  early  as  they  can  possibly  be 
needed.  It  is  not  possible  to  escape  from  this  conclu- 
sion. The  canals  now  perform  their  whole  duty  and 
carry  all  that  is  presented,  and  could  well  transport 
much  more.  If  there  be  no  increase  in  business  all 
will  be  done  in  the  best  manner,  and  if  the  transpor- 
tation shall  increase  as  I  believe  it  will  for  some  years 
to  come — that  increase  must  bring  with  it  all  the  sur- 
pluses that  can  be  required. 

Here  Mr.  HOFFMAN  gave  way  to  a  motion  to  rise  and 
report  progress — 

Afternoon  Session — Mr.  HOFFMAN  resumed — 
The  question  to  which  I  will  now  call  the  attention 
of  the  committee  is,  has  the  canal  in  its  present  con- 
dition capacity  to  perform  its  duties  well  in  carrying 
on  the  navigation  ?  If  the  surplus,  1  mentioned  this 
morning  of  $2,500,000  shall  accrue  from  the  business 
of  the  canals,  will  it  so  improve  the  canals  that  they 
may  perform  their  whole  duties  to  the  public?  I  will 
endeavor  to  answer  these  questions,  for  1  have  state- 
ments here  which  I  cannot  very  well  read,  yet  I  shall 
be  obliged,to  ask  the  attention  of  the  committee  \vhile 
I  attempt  in  some  way  or  other  to  read  or  explain  them. 
In  1834  and  1835,  there  was  a  very  large  crowd  on  the 
canal,  the  lockages  rose  to  a  considerable  number, 
and  the  navigators  were  forced  to  increase  the  ton- 
nage of  the  boats,  then  small,  and  averaging  some  35 
or  36  tons.  Perhaps  now  and  then  there  was  a  boat 
carrying  40  tons.  The  appearances  then  were  that 
there  was  to  be  a  very  large  and  rapid  increase  of 
this  trade.  I  am  not  certain  what  the  depth  of  wa- 
ter in  the  canal  at  that  time  was,  but  from  circum- 
stances which  then  came  to  my  knowledge,  and  from 
facts  since  ascertained  and  attested  upon  oath,  I  have 
been  inclined  to  believe  that  perhaps  at  that  time  the 
water  in  the  canal  was  scarcely  over  three  feet,  it 
may  have  been  more,  but  I  am  rather  inclined  to  the 
opinion  that  it  was  a  very  little  over  that.  I  do  not 
know  that  1  can  state  with  perfect  precision  what 
was  the  swiftest  lockage  performed, but  from  recol- 
lection, I  can  state  that  7,  8  and  10  minutes,  prior  to 
the  spring  of  1835,  was  the  ordinary  working  time  of 
the  locks.  I  believe  there  were  some  locks  that  could 
not  operate  with  the  same  facility,  and  the  commia 
sioners  appear  to  have  been  of  the  same  opinion,  and 
in  the  spring  of  1835,  ordered  new  paddle  twites  to 
the  locks  where  the  crowd  was  the  greatest,  in  or- 
der to  increase  the  facility  of  discharging  and  receiv- 
ing. How  that  worked  I  am  not  able  to  say,  but  I 
believe  it  increased  most  materially  the  capacity  of  the 
canal ;  and  if  the  commissioners  in  1834,  and  1835, 
had  known  the  shallow  state  of  the  water,  they  would 
hardly  have  come  to  the  conclusion  which  they  did 
that  double  locks  were  indispensable. 

But  they  did  come  to  the  conclusion,  and  in 
their  report  recommend  as  the  probable  extent  oi 
the  enlargement,  5  feet  by  50  and  6  feet  by  60 
The  enlargement — of  7  feet  by  70 — was  then  a 
thing  unheard  of.  It  owed  its  birth  to  a  conven 
tion  at  Rochester,  got  up  I  believe  the  succeeding 
year,  and  where  we  have  lately  had  a  conventioi 
on  enlarging  and  improving  navigation.  In  al" 
this  matter  there  was  a  vast  deal  of  theory  am 
something  of  fact,  and  I  have  done  the  utmost  in 
my  power,  since  I  have  been  here,  and  before,  U 
try  and  get  for  this  convention  the  facts  so  tha 
gentlemen  might  judge  in  some  degree  for  them 
selves.  I  have  a  table  here  of  the  boats  whict 
navigate  the  canals,  and  I  find  that  a  well  buil 
boat  carrying  80  tons  or  more,  in  point  of  fac 
draws  but  3  feet  4  inches  of  water.  An  ill  form 
ed  boat  of  the  same  burden  draws  a  little  more 
and  the  heaviest  of  all  these  boats  I  find  is  on 


o  which  has  been  given  the  name  of  "  Bull- 
ead."  This  comes  up  to  3  feet  8  or  9  inches, 
"hese  boats  make  their  trips  with  such  cargoes, 
liey  come  to  the  weigh-locks.  they  are  weighed 
here,  and  therefore  the  fact  that  they  carry  such 
argoes  is  unquestionable.  It  may  be  said  that 
hese  boats  are  ill-formed,  and  I  do  not  know  but 
hey  are.  The  doctrine  of  easiest  traction  in  na- 
igation  has  been  in  practice  disregarded  ;  and  I 
ieiieve  I  may  say  that  the  boatmen  and  the  car- 
ier  hold  it  in  sovereign  contempt.  I  am  not  sure 
iut  they  are  right,  because  in  any  effort  to  get  at 
t,  the  boat  will  be  so  far  from  the  towing  path 
s  to  render  the  traction  indirect  and  inconveni- 
nt.  At  any  rate,  they  hold  in  sovereign  contempt 
11  these  theories,  and  continue  to  make  their  80 
on  boats  and  carry  their  8u  ton  cargoes.  I  must 
efer  to  one  of  these  tables,  bringing;  into  discus- 
ion  at  this  point  what  ought  to  have  been  thrown 
n  somewhere  else,  that  is  the  moderate  increase 
>f  the  lockages,  the  increase  in  the  tonnage  of  the 
)oats,  and  the  vast  increase  of  the  tonnage  trans- 
orted. 

Mr.  Hoffman  here  referred  to  and  commented 
upon  the  following  table. 

Navigation  year  or  season  on  the  Erie  Canal. 


Total  of 

Lockages 

Tonnage 

Average 

lockages 

at  Alexan 

arriving  at 

down 

at  Alex- 

cler's leek 

ide  water 

cargoes 

Year. 

ander's 

being  as- 

from the 

of  the 

lock. 

sumed   as 

Erie  ca- 

boats. 

one  half 

nal. 

(the  Whole. 

1835 

25,798 

J2,899 

497,839 

38.6 

1836 

25,516 

12,758 

419,125 

32.8 

1837 

21,055 

10,527 

387,506 

36,8 

1838 
18:J9 

25,  962 
21,234 

12,981 
12,117 

419,249 
386,267 

32.3 
31.8 

1840 

26,  987 

13,493 

467,315 

34.6 

J841 

30,320 

15,  160 

532,520 

35 

1842 

22,869 

11,434 

480,  149 

42 

1843 

23,  184 

11,592 

635,345 

54.8 

1844 

28,219 

14,109 

799,816 

56.6 

1845 

30,452 

15,226 

959,590 

63 

From  this  table  it  is  seen  that  while  the  lock- 
ages have  increased  from  26,798  in  1835,  to  30,- 
452  in  1845,  the  tonnage  arriving  at  tidewater  has 
increased  from  497,839  tons,  in  1835  to  959,590 
tons  in  1845-  It  is  also  seen  that  the  average 
cargoes  of  the  boats  in  1835  was  38  6-10  tons — in 
1839  that  average  was  reduced  to  31  8-10  tons, 
and  had  risen  in  1843  to  63  tons,  or  more  than 
doubled.  The  average  cargoes  of  the  boats  for 
1846  will  probably  be  ftill  greater,  as  almost  all 
the  new  boats  exceed  ihe  highest  average  stated 
in  this  table. 

The  canal  commissioners  in  1841.  and  again  in 
1842,  stated  as  a  matter  of  demonstration,  that  if 
225,000  tons  should  be  added  to  the  down  ton- 
nage of  1840— which  was  467.315  tons,  the  Erie 
canal  would  then  have  reached  its  maximum  ca- 
pacity—they were  confident  that  its  greatest  ca- 
pacity would  not  eiceed  692,315  tons. 

They  supposed  and  said  that  when  the  canals  were 
doino-  this  amount  of  transportation,  thev  would  have 
reached  their  maximum.  They  were  fated  to  expe- 
rience the  same  overthrow  in  this  matter  of  conject- 
ure which  their  predecessors,  of  whom  I  was  one, 
had  experienced  on  the  subject.  In  1845  the.  tonage 
wus  959,590.  It  had  passed  the  maximum  winch  the 


1103 


canal  commissioners  had  fixed,  not  once,  but  more 
than  twice.  This  is  the  way  in  which  the  canal  per- 
formed in  point  of  fact.  It  seems  to  have  had  a  sort 
of  flexibility  to  overthrow  calculations.  It  realizes  its 
own  results  and  brings  out,  as  time  always  does, 
truths  on  which  it  is  safest  to  rely.  The  boatman, 
acting  in  defiance  of  the  rule  of  easiest  traction,  con- 
trived greatly  to  increase  his  cargo,  as  appears  by  the 
return  from  the  Weigh  locks. 

The  table  which  I  hold  in  my  hand,  shows  the  num- 
ber of  cargoes,  exceeding  70  tons,  weighed  at  Roch- 
ester and  Syracuse,  and  exceeding  65  tons  weighed 
at  Utica,  in  several  months  of  the  present  year.  It 
may  be  assumed  that  these  are  down  cargoes,  for 
nearly  all  the  cargoes  weighed  at  these  locks  are  such. 

Cargoes  weighed  in  1846,  at  the  several    Weigh 
Locks : — 

Over  70  tons.  Over  70  tons.  Over  60  tons. 


ROCHESTER 
Weigh-lock. 
April,  (2  weeks)  28 
May,        "  97 

June,  "  169 
July,  "  136 
August,  "  .129 


SYRACUSE 

Weigh-lock. 

59 

138 

147 

135 

122 


UTICA 

Weigh-lock , 
40 
120 
91 
66 
93 


559  601  410 

I  now  beg  leave  fo  call  the  attention  of  the 
Convention  to  another  statement  illustrating  the 
increase  of  these  cargoes,  by  showing  the  contin 
ued  increase  ot  the  tonnage  of  the  boats.  For- 
merly, all  boats  were  entered  in  the  register,  but 
what  hecame  of  them  afterwards  was  never  known. 
In  1844,  an  order  was  made  to  have  the  officers 
go  along  the  line  of  the  canal,  and  take  down  the 
name  of  the  boats,  and  of  the  tonnage  of  each 
and  transmit  them  to  the  office  here.  As  all  the 
boats  were  then  lied  up  by  the  winter,  the  truth 
as  to  the  number  of  boats  and  their  tonnage  was 
obtained.  The  number  of  boats  according  to  that 
account,  in  1843,  was  2126,  and  their  tonnage  and 
the  tonnage  ot  the  boats  built  in  each  year  since 
is  given  in  the  table  which  I  will  now  read. 

Mr.  HOFFMAN  here  read  and  commented  on  the 
following  table  : 

TONNAGE  OF  NEW  BOATS,— F. 


1 

£ 

-S3 

S.S 

ii 

sir 

o 

1* 

^    0  CO 

111 

t3r3     - 

a  «  '-0 

ri  t-«  "^ 

«|S 

H 

«*n 

II 

1" 

l'^3 

180 

1* 

100 

i 

90 

2 

1 

4 

1 

86 

1 

1 

3 

80 

3 

9 

13 

33 

75 

13 

33 

60 

118 

70 

162 

124 

107 

97 

IS 

264 

94 

64 

20 

60 

444 

71 

33 

7 

60 

325 

15 

4 

1 

50 

464 

14 

6 

3 

45 

166 

1 

2 

40 

158 

35 

53 

1 

1 

30 

40 

11 

25 

16 

3 

2 

20 

8 

3 

2 

15 

3 

1 

10 

4 

1 

5 

4 

3 

3 

Av.Tonnag 

2,126 

378 

297 

288 

3        50 

64 

67 

72 

With  this  increase  in  the  tonnage  and  cargoes 
t  the  boats,  has  come  a  corresponding  reduction 
i  the  prices  of  freights  exclusive  of  tolls.  The 
p  freights  in  1830,  '31  and  '32,  gave  to  the  car- 
ier  after  he  had  paid  the  tolls,  some  45  cents  on 
he  hundred  weight  ;  and  in  1845  and  '46  only  9 
ents.  I  do  not  know  it  that  result  is  possible, 
ut  it  is  actual— it  cannot  be  helped,  for  the  thing 
a  done.  The  down  freight  is  nuw  so  heavy  and 
i  bulky,  and  the  up  freight  so  light,  being  scarce- 
y  sufficient  for  useful  ballast,  and  most  easy  navi- 
;ation  of  the  boat,  that  the  carrier  gets  very  little 
icyond  the  tolls,  for  the  up  freight.  In  1830,  '31 
nd  '32,  the  carrier  after  paying  the  rolls  on  a  bai- 
el  of  flour,  reserved  to  himself,  37  cents  ;  in 
846,  but  22  cents.  So  that  while  this  controversy 
.bout  reducing  the  cost  of  transportation  by  the 
mlargement  of  the  canal  has  been  going  on,  a  re- 
hictiun  of  much  more  than  fifty  pet  cent,  on  the 
carrier's  share  of  the  charge  for  transportation  has, 
aking  the  up  and  down  business  together,  been 
;i  general,  actually  effected.  The  cafrier  has, 
with  such  a  canal  as  you  have  given  him,  reduced 
lis  compensation  more  than  one  half. 

The  facts  now  brought  to  the  a  tention  of  the 
committee,  prove  strongly,  that  in  the  increase  in 
he  tonnage  of  the  boat  and  the  reduction  in  the 
rcight.  which  the  carrier  after  paying  tolls,  can 
etam  for  his  use,  we  have  without  the  enlarge- 
ment, realized  about  all  the  benefits  promised  by 
that  enlargement.  It  may  be  supposed  that  the 
;anal  has  been  deepened  or  enlaiged  by  repairs, 
jut  there  is  no  foundation  for  this  supposition. — 
Since  the  Convention  has  been  in  session,  by  or- 
der of  the  Canal  Board,  the  water  in  the  canal  on 
the  upper  and  lower  mitre-sill  of  every  lock,  and 
at  about  every  four  rods  of  the  space  intermediate 
he  locks,  and  on  both  sides  ot  the  boat,  has  been 
measured— the  measurement  sworn  to,  and  return- 
ed to  the  Canal  Department,  with  the  ascertained 
ime  to  fill  and  discharge  the  lock  and  pass  the 
boat, — where  any  gentleman  may  examine  them. 
From  these  returns,  it  appears  that  at  points  ot  con- 
siderable extent,  there  is  not  full  four  feet  of  water 
either  from  Albany  to  Utica,  or  from  Syracuse  to 
Buffalo.  Some  of  the  boats,  however,  draw  3  ft. 
8  inches,  and  one  3  feet  9  inches — and  I  infer  from 
this,  that  the  canal  when  very  full  of  water,  af- 
fords this  draft  at  all  points — but  the  admeasure- 
ment of  the  water  shows  that  it  does  not  afford 
the  full  four  feet  promised  in  the  construction  — 
On  the  mitre  sills  there  is  usually  an  exces  sof 
five  or  seven  inches  over  the  four  feet,  and  I  sup. 
pose  these  mitre  sills,  especially  at  the  heads  of 
the  locks,  indicate  more  truly  than  any  thing  else, 
the  true  original  bottom  watei  line  of  the  canal. 
The  admeasurements,  however,  show  that  in  the 
distance  between  locks,  the  bottom  of  the  canal 
is  frequently,  and  for  long  spaces,  some  inches 
above  the  mitre  sills'. 

[Here  Mr.  1JOUCK  interrupted  Mr.  HOFFMAN- 
by  saying,  that  these  sills  were  usually  depressed 
some  six  or  eight  inches  below  the  bottom  water 
line  of  the  canal.] 

Mr.    HOFFMAN    proceeded.      I   have   often 

*  NOTE—  The  boat  pf  180  tons,  built  in  1846,  is  95  feet 
long,  16  fe*t  "2  inches  in  width,  draws  3V  loot  water  when 
freighted  with  1'20  tons,  but  would  require  4|  feet  to  carry 
180  tons— runs  from  liultaio  to  Rochester,  aud  moves  Irom 
2^  to  three  miles  an  hour. 


1104 


doubted  whether,  although  the  state  paid  for  a 
four  foot  canal — the  contractors  ever  excavated  i 
to  that  depth.  The  returns  to  which  I  have  al- 
luded, create  doubts  on  the.  point — and  if  these 
sills  were  depressed  five  or  seven  inches,  I  shoulc 
conclude  that  the  canal  was  not  originally  exca- 
vated to  much  more  than  three  feet.  Aside  iron 
this  question,  however,  these  returns  prove  that 
the  water  for  navigation  does  not  exceed,  if  it 
equals,  lour  feet  in  depth.  1'he  increase  of  the 
tonnage  of  the  boat,  and  the  carrier's  reduction  of 
his  share  ot  the  freight,  has  been  effected  with  a 
canal  of  not  exceeding  four  feet ;  at  points,  it  is  less 

These  returns  also  show  that  with  the  best  pad- 
dle gates  and  apparatus,  a  lock  may  be  filled  in 
40  seconds,  and  discharged  in  the  like  short  time. 
With  such  a  lock,  a  boat  may  pass  in  ihree  min 
utes  with  practical  ease.  Yet  some  of  the  locks 
operate  much  slower.  In  truth,  if  at  the  most 
crowded  points  on  the  canal,  (tor  which  as  is  seen 
by  the  lockages,  there  is  and  can  be  no  difficulty,) 
there  should  be  given  to  every  lock  the  same  pow- 
er and  facility  now  possessed  by  some,  the  capa- 
city of  the  canal  would  be  largely  increased,  say 
one-third,  to  pass  boats,  to  say  nothing  of  the 
great  increase  of  its  capacity  that  must  result  from 
fairly  cleaning  it  out,  and  affording  4  ft.  5  inches 
of  water  through  the  whole  distance,  being  less 
than  the  average  on  the  mitre  sills.  These  two 
changes  alone,  which  can  cost  almost  nothing, 
would  increase  the  capacity  of  the  canal  with 
only  its  old  locks  one-half,  and  make  it  answer 
all  our  purposes  until  surpluses  can  be  earned, 
as  I  have  endeavored  to  show  they  will  be,  to 
improve  it. 

What  then  can  these  surpluses  do  when  obtain- 
ed to  improve  the  Erie  canal?  They  will  be  suf- 
ficient to  secure  double  locks,  and  one  of  them,  a 
line  of  enlarged  locks  to  Syracuse.  From  Syra- 
cuse to  Lockport,  they  will  either  extend  the  old 
locks,  to  make  them  100  feet  in  the  chamber,  or 
erect  enlarged  locks.  They  will  complete  the  double 
enlarged  locks  at  Lockport,  and  extend  them  to 
Buffalo.  In  addition  to  all  this,  they  will  raise 
and  strengthen  the  banks  ironi  Albany  to  Buffalo, 
so  as  to  secure  by  reasonable  cleaning,  full  five 
feet  of  water — and  thus  with  the  improved  facility 
of  the  locks,  enlarge  the  boats  to  120  tons,  and 
triple  the  capacity  of  the  Erie  canal.  The  ex. 
pense  of  this  work  to  Syracuse,  has  been  closely 
estimated.  For  the  residue  ot  the  distance  expe- 
rience furnishes  a  safe  guide.  To  obtain  five  feet 
of  water  and  locks  of  100  feet  in  the  chamber,  the 
engineer's  estimate  would  reach  about  $1,600,000, 
— my  own  about  $1,900,000,  and  certain  it  is  that 
the  $2,500,000  proposed  would  complete  it  in  the 
best  manner.  The  $300,000  to  reach  Syracuse 
will  soon  be  realized.  To  my  mind,  it  is  entirely 
certain,  that  we  can,  in  this  manner,  svithout  de- 
ferring the  payment  ot  our  debt  in  due  season,  and 
before  it  can  be  needed — give  the  Erie  canal  ca- 
pacity at  once,  to  reduce  its  tolls  if  need  shall  be, 
and  yet  earn  the  surpluses  to  complete  its  con- 
struction, and  that  of  any  work  the  State  may  de- 
sire. 

Sir,  pain  obliges  me  to  desire  to  bring  these  re- 
marks to  a  close.  But  in  the  schemes  proposed 
for  the  arrangement  of  our  debts,  I  cannot  fail  to 
perceive  a  strong  wish  to  preserve  the  old  debt- 
or system,  under  the  new  and  milder  pretence  of 


delaying  payment,  in  otdur  to  get  money  to  spend. 
I  must  therefore  call  attention  to  the  great  injuries 
we  have  sustained  from  this  debtor  system.  We 
cannot  now  very  well  estimate  the  cost  of  comple- 
ting the  works  begun.  Judging  from  the  estimates 
and  the  reports  of  those  who  had  them  in  charge 
in  1842,  the  cost  would  equal  $15,000,000.  That 
was  the  sum  asked  by  the  commissioners  of  the 
canal  fund,  and  canal  commissioners,  and  recom- 
mended by  the  Governor.  The  estimate  then  for 
the  Black  River  called  for  some  $800,000,  which 
with  land  damages,  extras  and  contingences, 
would  probably  swell  to  one  million.  About  $1,- 
800,000  appeared  then  to  be  required  for  the  Ge- 
nesee  Valley,  which  with  the  usual  additions, 
would  probably  reach  $2,000,000,  unless  the  worfc 
should  be  executed  bad  enough,  as  on  theChe- 
mung,  to  reduce  the  cost  ;  and  yet  these  canals 
would  not  probably  pay  their  own  expenses  in 
many  years.  The  Erie  enlargement  seemed  then 
to  require  some  $12,000,000  to  complete  it,  al- 
though at  some  expensive  points,  the  plan  to  be 
pursued  was  not  settled — might  be  changed,  and 
made  more  expensive.  Lower  estimates  may  have 
since  been  made,  to  get  them  again  under  way, 
but  I  rely  more  on  the  estimates  of  those  who 
supposed  they  might  be  required  to  complete  them, 
than  on  those  who  seek  their  resumption.  When 
we  engaged  in  these  works  we  had  only  a  small 
debt;,  some  four  or  four  and  a  half  millions  beyond 
funds  on  hand;  yet  in  five  years,  from  1838  to 
1842,  we  exhausted  and  depressed  our  credit, 
brought  on  numerous  and  extensive  bank  failures, 
and  rolled  up  a  debt  of  more  than  $28,000,000,  and 
sunk  ourselves  exhausted,  and  suspended  these 
works.  We  have  by  four  years'  effort,  somewhat 
reduced  our  debt — but  that  debt  is  still  some  $24,- 
000,000,  quarterly  demanding  the  payment  of  in- 
terest, and  rapidly  becoming  due  in  its  millions  of 
principal.  Under  the  most  favorable  circumstan- 
ces the  debtor  system  was  fully  tried  and  failed 
us.  The  failure  drove  from  power  its  most  ar- 
dent friends — and  I  ask  does  any  Whig  desire  to 
repeat  it? — does  any  Democrat  concerned  in  the 
effort  to  pay  it,  desire  to  repeat  it  ? — does  any  of 
the  new  parties,  Natives  or  Abolitionists,  desire  to 
repeat  a  system  so  destructive  to  its  friends  and 
the  country  ?  Is  there  no  other  road  to  defeat, 
ruin  and  political  disgrace  ? 

We  have  had  very  bitter  experience  of  the  evils 
of  this  poor,  impoverishing  debtor  system.  Let 
us  see  the  great  advantages  we  might  have  secured 
by  a  cash  system.  The  Erie  and  Champlain  canals 
cost  us.  including  the  care  of  them,  to  completion 
$8,401 :394,12,  and  were  eight  years  in  construc- 
lon,  from  1817  to  1825.  When  we  began  them 
we  had  a  general  fund,  which  is  now  entirely  ex- 
sended,  and  while  they  were  in  construction,  the 
3alt  tax,  the  auction  tax,  the  land  sales,  and  some 
canal  tolls  were  poured  into  the  canal  fund  now  so 
deeply  indebted.  During  those  eight  yearg  the 
canal  fund  received : 

From  the  salt  tax,  $557,409  09 

»     Auction  tax,  1,351,349  57 

"     Steamboat  tax,  73,409  99 

«     Canal  tolls,  977,339  32 

«     Land  sales,  2,371  30 

Add  the  general  fund  now  gone,  2,740,001  51 


Making  together, 


$5,601,880  78 


1105 


which  it' deducted  IVotn  the  cost  of  the  canals,  as 
stated  before,  would  leave  to  be  supplied  by  taxes 
$2,799,513.34.  So  that  aduect  tax  of  about  $350, 
UOO  lor  each  of  the  eight  years,  these  canals  were 
in  construction,  would  have  enabled  the  State,  to 
construct  them  without  one  dollar  of  debt.  Since 
these  two  canals  were  completed,  Jailer  paying 
their  own  expenses,  their  nett  revenues, as  is  seen 
by  Convention  document  No.  47 — H,  has  been 
down  to  15-15,  $18,964,790  53 

The  whole  cost  ol  constructing 

all  the  finished    lateral   canals, 

was  only  3,496,839  66 


Leaving  without  interest 


$15,567,850  87 


is  their  least  cost.  The  gieat  expense  is  lo  inain- 
ain  them— and  this  class,  called  extraordinary  ex- 
,.<-nses,  will  increase  with  our  population.  Under 
all  ciicumstances,  it  is  not  probable  that  our  State 
current  expenses,  for  each  of  the  ten  years  to 
come,  will  be  less  than  $603,000— and  after  that 
period  it  is  probable  they  will  largely  exceed  that 


The  State  expenses  then  will  be 

To  meet  them  we  have  residue 

of  State  annuity  as  before, $172,500 

Auction  and  salt  tax,  say 100,000 


$600,000 


272.500 


for  the  construction  of  the  Black  River  canal,  the 
Genesee  Valley,  and  the  Erie  enlargement  without 
a  canal  debt;  and  yet  in  the  receipt  ot  our  full  and 
growing  canal  revenues  To  this  we  should  add 
§3,749, 954'.42  cents  for  the  salt  and  auction  tax, 
and  land  salex.  that  have  been  sunk  in  the  canal 
fund  since  1525.  With  the  experience  of  all  we 
have  suffered  from,  and  the  great  advantages  we 
have  lost,  will  we  still,  if  not  in  an  open,  yet  dis- 
guised form,  cling  to  this  fatal  debtor  system  ? — 
Will  we  permit  our  debts  to  hang  about  us — in- 
crease by  accident,  and  by  interest,  and  make  our 
debt,  and  the  taxes,  direct  or  indirect,  to  meet  it, 
eternal?  The  action,  not  the  words  of  this  Conven- 
tion, sh.>ll  answer.  Be  that  what  it  may,  your  peo- 
ple will  answer  no  !  Eternal  debt  and  taxes  are 
nor  ours — and  cannot  be  fastened  on  us.  The  go. 
vernment  have  not  the  power  to  doit. 

The  annui'y  in  liquidation  of  the  State  claim 
foi  advances  to  the  canals,  is  fixed  by  the  commit- 
tee at  $67-;  ,500.  Of  this  sum  $500,000  a  year  is 
proposed  to  be  taken  as  a  sinking  fund  to  pay  the 
General  fund  and  insolvent  Rail-road  debt,  and 
such  part  of  the  contingent  debt  as  may  fall  on  the 
treasury.  It  will  do  it  in  some  nineteen  or  twenty 
years,  as  1  have  before  showed.  I  had  designed  to 
say  something  more  of  the  origin  ot  this  debt,  and 
the  character  of  the  legislation  that  caused  it,  but 
I  must  forbear.  It  we  deduct  this  last  sinking  fund 
from  the  State  annuitv,  we  shall  have  remaining 
$172,500  a  year  to  apply  to  State  current  expenses. 
All  beyond  this  small  income  for  some  twenty- 
years,  must  be  supplied  by  taxes,  direct  or  indi- 
rect. 

What  then  will  these  current  State  expenses  be, 
and  what  taxation  will  be  necessary?  As  to  the 
first,  the  past  is  our  safest  guide.  These  expenses, 
exclusive  of  interest  on  the  General  fund  debt,  will 
be  found  in  Convention  doc.  No.  47,  p.  18,  in  each 
year  from  1817  to  1845  Looking  at  the  table,  it 
will  be  seen  that  they  have  maintained  a  steady 
increase  and  most  rapidly  for  the  lust  ten  years. — 
From  1830  to  1845  they  amount  to  more  than  $7,- 
000,000  in  the  aggregate,  making  an  average  ot 
more  than  $700,000  a  \ear.  A  part  of  these  ex- 
penses are  lor  matters  which  bring  into  the  treas- 
ury  or  as  it  is  called  the  General  fund,  as  much  as 
they  take  out — such  as  advances  for  non  resident 
taxes  replaced  ro  the  treasury  by  tax  sales.  Items 
of  this  ki'td  may  reduce  these  expenses  some  $50,- 
000  or  $100,000  a  year.  Beyond  this  I  see  no  rta- 
son  to  look  for  reduction  in  our  State  expenses. — 
We  will  have  geological  surveys  or  something 
quite  as  expensive.  We  have  asylums  and  state 
Their  construction 

113 


Unprovided  for, $327.600 

To  meet  these  expenses  unprovided  for,  we  must 
retain  in  force — 

The  half-mill  direct  tax $280,000 

The  one-tenth  mill  direct  tax 56,000. 


prisons,  and  must  build  more. 


$336,000 

and  any  increase  of  our  current  expenses  will  im- 
pose new  taxes  until  1865,  when  the  extinguish- 
ment ot  the  General  fund  debt  willleave  the  whole 
annuity  to  the  State,  $672.500,  for  current  expen- 
ses. But  in  that  long  period  it  is  leasonable  to 
suppose  that  these  expenses  will  pass  some  $300,- 
000  or  $400,000  beyond  that  annuity,  and  make 
direct  taxes  to  that  amount  necessaiy.  Such,  sir, 
it  is  probable,  will  be  the  result  of  our  debtor  svs- 
tetn  for  internal  improvements.  It  promised  ex- 
emption from  taxes  and  with  it  the  endowment  of 
schools  and  charities.  It  has  already  made  us  feel 
these  taxes,  and  will  leave  us  long  to  their  mercy. 
In  this  view  of  the  subject,  it  is  scarcely  necessary 
for  me  here  to  repeat  that  what  we  do  not  take 
from  the  canal  revenues  to  pay  these,  must  be  sup- 
plied by  taxes.  Although  this  is  no  reason  for  en- 
larging the  State  claims  for  advances  for  the  canals 
be\ond  their  just  amount,  and  a  fair  rate  and  mode 
of  estimating  the  interest — it  is  a  strong  ground  for 
asserting  and  maintaining  this  claim  to  its  full  and 
fair  extent. 

Sir,  other  matters  in  the  report  of  the  commit- 
tee deserve  some  explanation,  and  I  had  designed 
now  to  make  them,  but  I  arn  not  able.  I  will  en- 
deavor, however,  to  do  so  when  the  several  sec- 
tions shall  be  considered.  In  the  main,  however, 
they  will  sufficiently  explain  themselves. 


REMARKS  of  Mr.  WORDEN,  on 

CES,    Wednesday  y  Sept.  16th,  1846. 

The  first  section  of  Mr.  HOFFMAN'S  leport,  ap- 
propriate! one  million  five  hundred  thousand  dol- 
lars of  the  nett  revenues  of  the  Canals  as  a  sink- 
ing fund,  to  pay  the  interest  and  the  principal  of 
the  canal  debts  of  the  slate. 

The  second  section  provides,  that  ''in  liquida- 
tion of  I  he  state  claims  for  advances  to,  and  pay- 
ments for  the  canals,  $672,500  of  the  nett  canal 
revenues  forever,  in  each  y*  ar,  shall  be  paid  out 
of  the  Treasury  tor  the  use  ot  the  btate,"  being  th« 
same  as  an  annual  tax  on  the  canals  to  that 
amount. 

The  third  section  provides,  that  after  paying  the 
sums  appropriated  by  the  two  preceding  sections, 
the  surplus  nett.  revenues  of  the  canals  "shall  in 
each  year  be  applied  to  the  improvement  of  the 
Krie  canal,  in  such  manner  as  may  be  directed  by 
law,  uiuil  such  surplus  shall  amount  in  the  ag- 
giegate  to  two  million  five  hundred  thousand  dol- 
lars." 


1106 


Tne  other  sections  of  the  report  contains  pro- 
visions for  a  sinking  fund  to  be  created  out  of  the 
$672,500  to  be  paid  under  the  second  section  into 
the  state  treasury,  and  for  making  good  by  taxa- 
tion, any  deficiencies  to  supply  the  sinking  funds. 

The  last  section  of  the  report,  provides  that  the 
legislature  shall  not  sell,  lease  or  otherwise  dis- 
pose of  any  of  the  canals  of  the  state,  now  finished 
and  navigable,  leaving  the  legislature  at  liberty  to 
sell  the  unfinished  portion  of  the  Genesee  Valley 
and  the  Black  River  canals. 

iVIr.  WORDEN  said  the  question  for  the  Con- 
tion  to  meet  and  decide  was,  whether,  by  the 
adoption  of  the  provisions  reported  by  the  gen- 
tleman  from  Herkimer(Mr.  HOFFMAN,)  the  prose- 
cution of  the  public  works  as  now  ;-uihorized, 
should  be  abandoned;  such  would  be  the  inevita- 
ble result  should  these  provisions  become  incor- 
porated info  the  constitution.  Before  a  question 
of  this  magnitude  was  decided,  it  would  be  wise 
to  ascertain  what  we  were  to  abandon. 

First,  the  gentleman  (Mr.  HOFFMAN)  proposes 
to  abandon  entirely,  as  a  state  work,  the  Black 
River  and  the  Genesee  Valley  canals.  It  appears 
from  tho  report  of  the  canal  commissioners  to  the 
last  legislature,  that  prior  to  the  1st  of  April,  1842, 
the  amount  of  work  done  on  c-.ntracls,  and  not 
brought  into  use  on  the  Black  River  canal,  amount, 
ed  to  $1,676^111.31,  and  that,  the  sum  necessary  to 
finish  ihese  works,  under  the  contracts  when  they 
were  put  an  end  to  by  the  state,  was  $80,447.46. 
The  total  cost  of  all  the  work  done  on  that  canal, 
as  appeared  by  the  same  report,  was  $1,750', 593. 77. 
We  are  not  now  to  determine  upon  the  correct- 
ness or  propriety  of  the  act  authorizing  the  con- 
struction of  this  work  ;  but  in  what  way  we  can 
best  secure  the  benefit  of  the  money  already  ex- 
pended. A  little  over  $80.000  would  have  com- 
pleted all  the  work  under  contract  on  the  Black 
River  canal,  when  the  suspension  act  of  Ib42  took 
effect,  and  about  $400,000  would  have  completed 
the  entire  canal.  The  question  then  was,  whether 
we  should  go  on  and  make  this  expenditure  and 
thereby  secure  to  the  state  the  benefits  ut  the 
$1,750,000  already  expended  ? 

It  appeared  from  the  same  report  ol  the  Canal 
Commissioners,  that  the  completed  portion  of  the 
Genesee  Valley  canal,  in  use,  co*t  $1,400,365  25, 
and  that  the  cost  of  ihe  work  done  on  the  aban- 
doned contracts  previous  to  the  1st  of  April,  1842, 
and  not  in  use  was  $1,807,525  29,  and  that  an  ex- 
oenditure  of  $922,392.82  would  have  completed 
the  contracts.  About  $1,500,000  is  now  required 
to  finish  this  canal.  Will  you  throw  away  ,ul  this 
money  expended  on  the  unfinished  portion  of  >hese 
canals,  or  go  on  in  a  reasonable  manner  and  cum- 
plete  them,  and  thereby  secure  the  advantage  of 
all  you  expended  ? 

By  the  same  report  of  the  commissioners,  it  ap- 
pears that  when  the  contracts  for  the  enlargement 
of  the  Erie  canal  were  suspended  by  the  act  of 
1842,  the  work  done  under  those  contracts,  but 
not  completed,  amounted  to  $1,245,035  46,  and 
that.  $1,533,31820  was  all  thai  was  required  to 
complete  the  work  under  the  abandoned  conn-nets. 
The  same  report  also  shows  that  the  work  done  on 
the  Oneida  River  Improvement,  on  the  abandoned 
contracts,  amounted  to  $14,574.91,  and  that  the 
sum  to  be  expended  to  complete  the  contracts  was 
$13,038.50. 


The  following  table  brings  into  one  view  the  op- 
eration of  the  suspension  act  ot  1842  upon  the  then 
existing  contracts: 

Amount  of  work  Amount  to  be  paid 
done  on  contracts  to  complete  the 
which  were  aban-  abandoned   con- 
doned liy  the  poll-  tracts, 
cy  of  1842. 

Genesee  Valley  canal,     $1,807,525  29  $922,392  82 

Black  River  canal,               1,652,039  95  80,48746 

Erie  canal,                              1,245,03546  1,533,31835 

Oneida  River  Improvement,    14,57491  13,08850 

$4,719,17571  $2,549,28703 

It  appears,  then,  (said  Mr.  W.)  that  $2,549,- 
287.03  would  have  completed  the  entire  contracts. 
And  tendered  available  to  the  state  an  actual  ex- 
penditure of  $4,719,175.61  on  the  suspended  or 
unfinished  works. 

It  was  not  his  purpose,  said  (Mr.  W.)  to  contro- 
vert at  this  time  the  policy  of  1842,  or  to  quarrel 
with  that  policy.  There  was  little  more  in  it 
that  wiis  substantial  than  he  labored  to  secure, 
with  the  gentleman  from  Herkimer,  (Mr.  HOFF- 
MAN) in  the  legislature  of  1841.  'At  that  time 
stocks  had  been  issued  by  many  of  the  stales  of 
the  Union  to  a  large  amount,  and  thrown  upon  the 
money  markets  of  this  country  and  of  Europe. — 
This  large  issue  of  these  stocks  depressed  the  va- 
lue of  all  American  securities  and  brought  discredit 
upon  the  solvent  as  well  as  the  insolvent  Slates. 
A  large  debt  also  existed  against  the  United 
States;  Congress  authorized  a  loan  to  pay  oif  this 
debt,  but  the  Secretary  of  the  Treasury  during  a 
portion  ot  the  years  1841  and  1842,  was  unable  to 
obtain  such  a  loan  on  the  stocks  of  the  United 
States  at  the  rale  of  six  per  cent  per  annum.  The 
legislature  in  1841,  found  the  whole  country  em- 
barrassed in  its  financial  affairs,  and  as  the  law 
then  stood  the  State  officers  were  authorized  to 
make  contracts  for  the  completion  ot  the  Eiie  ca- 
nal enlargement  and  the  Genesee  and  Black  River 
canals.  A  large  proportion  of  work  was  then  un- 
der contract.  These  contracts  had  been  made  by 
the  political  friends  of  the  gentleman  from  Herki. 
mer,  (Mr.  H.)  It  was  then  the  policy  of  that 
gentleman  to  break  these  contracts  and  pay  to  the 
contractors  the  damages  therefor;  had  that  policy 
prevailed  in  1841  it  would  now  be  impossible  to 
estimate  the  amount  of  those  damages.  Another 
course  ardently  insisted  on  by  some  gentlemen, 
was  to  proceed  with  the  public  vsorks  at  all  haz- 
ards, and  loan  money  at  any  rate  of  interest  at 
which  it  could  be  obiained  toccmplete  the  canals. 
Any  amount  of  money  could  then  have  been  ob- 
tained on  a  seven  per  cent  stock.  The  mercantile 
interests  of  the  State  represented  to  the  legisla- 
ture I  hat  it  would  be  most  destructive  to  the  pub- 
lic interests,  if  the  State  should  come  into  the 
money  market  as  a  borrower  at  seven  per  cent. — 
Under  all  these  circumstances  the  legislature  of 
1841  was  called  upon  to  act.  The  idea  that  the 
State  should  repudiate  its  own  contracts,  was  then 
entertained  by  lew.  If  the  gentleman  from  Her- 
kimer  \vas  then  willing  to  go  that  length,  he  stood 
alone  or  nearly  so.  Mr.  W.  said  he  was  among 
those  who  deemed  it  wise  to  prevent  the  making 
of  new  contracis,  and  to  limit  the  loans  to  pay  for 
v\orkdone,  and  to  be  done  under  existing  contracts 
to  the  smallest  possible  amount,  and  that  such 
leans  should  not  be  made  as  permanent  stockloaris. 
i  at  a  rate  of  interest  above  six  per  cent.,  giving, 


1107 


however,  to  the  commissioners  of  the  canal  fund, 
power  to  make  temporary  loans  at  rates  of  interest 
not  exceeding  seven  per  cent.,  should  they  be  un- 
able to  procure  money  on  stocks  at  six  per  cent. 
A  vast  majority  of  the  Assembly  so  thought,  and 
a  bill  with  such  provisions  passed  both  bodies, and 
the  Assembly  by  a  very  great  majority.  No  po- 
litical considerations  then  influenced"  the  action  of 
the  legislature.  The  bill,  said  Mr.  W.,  to  provide 
funds  for  carrying  on  the  public  work*,  originated  in 
the  Senate,  and  appropriated  $4,000,000.  if  he  re- 
membered rightly,  to  that  purpose.  The  Assem- 
bly reduced  the  amount  more  than  a  million  ol 
dollars,  but  the  Senate  refused  to  concur  with  the 
amendments  of  the  Assembly.  The  bill  came 
back  to  that  body,  and  a  gentleman  then  belong- 
i  ig  to  the  same  political  party  as  the  gentleman 
fiom  Herkimer  (Mr.  HOFFMAN)  moved  (and  Mr. 
W.  said  he  believed  in  good  faith,)  that  the  house 
recede  from  its  amendment.  That  motion,  Mr. 
W.  said,  he  moved  to  amend,  by  inserting  the  word 
"not"  before  the  word  "recede,"  and  his  motion 
prevailed.  The  amendments  of  the  Assembly 
were  finally  concurred  in.  The  commissioners  ol 
the  canal  fund  under  the  law  were  enabled  to  pro- 
vide the  means  to  pay  the  contractors  on  the  pub- 
lic works ;  true,  they  were  enabled  to  obtain  such 
means  on  a  six  per  cent  stock,  and  were  obliged 
to  resort  to  the  provision  authorizing  temporary 
loans  at  7  per  cent.;  but  there  was  not  a  moment 
from  the  termination  of  the  session  o(  the  legisla. 
ture  in  1841  to  the  commencement  of  the  session 
in  1842,  when  such  loans  could  not  have  been  ob- 
tained on  a  7  per  cent  siock,  or  on  as  good  terms 
as  were  ob^.ineo!  under  the  law  of  1842.  .Now, 
said  Mr.  W.,  we  are  in  a  position  to  examine  a 
little  more  critically  the  policy  of  1842.  Means 
were  then  to  be  provided  to  pay  these  temporary 
loans,  and  to  pay  the  contractors.  It  was  antici- 
pated in  1841,  that  it  would  be  so,  but  it  was 
thought  unwise  to  rush  into  market  as  a  borrower 
on  State  stocks  at  7  per  cent  for  lonn  periods,  un- 
til it  should  be  found  necessary.  To  avoid  this, 
these  temporary  loans  were  authorized  and  made. 
They  might  have  been  without  difficulty  contin- 
ued for  one  year  by  the  legislature  of  1842  at  the 
same  rate  ;  but  it  was  decided  otherwise.  The 
law  of  1842  authorized  loans  to  be  made  on  stocks 
at  7  per  cent,  and  they  were  made  at  thar  rate, 
hastily,  ill-advisedly,  and  at  great  cost  to  the  State. 
A  year  or  a  little  more  afterwards,  the  same  loans 
could  have  been  made  at  six  per  cent.  The  loans 
of  1842  were  made  at  the  high  rate  of  7  per  cent., 
and  if  at  any  time  they  could  not  be  made  at  less 
rates,  it  was  owing  to  the  most  pertinacious  efforts 
in  certain  quarters,  to  depreciate  the  value  of  our 
public  securities,  and  to  represent  the  canals  as 
having  impoverished  the  State.  Instead  of  carry- 
ing out  the  contracts  of  the  Stale,  they  weie  bro. 
ken  by  the  law  of  1842,  the  public  engagements 
were  violated,  and  the  contractors  with  their  bro- 
ken contracts  turned  over  to  the  canal  board  for 
the  adjustment  and  payment  of  their  damages. — 
The  sum  of  two  million  five  hundred  and  forty- 
nine  thousand  dollars  would  have  completed  all 
these  contracts  ;  but  the  policy  of  those  in  power, 
chose  to  violate  them.  Now  let  us  see,  (said  Mr. 
"W.)  at  what  cost.  By  the  Comptroller's  report 
to  the  last  legislature,  page  17,  Mr.  W.  said,  he 
found  the  following  statements. 


"  The  sums  actually  awarded  and  paid  for  breach. 

es  of  contracts  growing  out  ot  the  suspension,  are 

as  ft'llows,  viz  : 

On  the  Erie  canal  enlargement,  $248,290  83 

Black  River,  2,671  22 

Genesee  Valley,  167,543  19 

Oneida  River  improvement,  3,944  66 


$422,449  90 

Of  this  amount,  however,  there  was  paid  on  ac- 
count of  the  Genesee  Valley  canal,  $55,000  under 
the  law  of  1839,  leaving  the  amount  paid  under 
I  he  act  of  1842,  $367,449  90,  (same  report, )smce 
which  time,  as  appeals  from  a  memorandum  made 
by  the  Comptroller  himself,  $28,000  have  been 
paid,  making  the  total  paid  under  the  law  of  1842, 
$395,449  90.  While  from  Convention  Doc.  No. 
59,  il  appears  the  claims  allowed,  amount  to 
$425,434  19.  In  addition,  it  appears  from  the 
canal  commissioners  report,  before  ciied,  that  the 
cost  of  the  work  done  since  April  1, 1842,  on  the 
enlargement  to  bring  the  work  into  use,  amounts 
to  $296,459  8G.  This  latter  sum  does  not  include 
work  done,  bv  contractors  since  the  suspension, 
and  paid  for  by  the  .state.  The  precise  amount 
thus  paid,  Mr.  W.  said  he  could  not  find  from 
public  documents.  Laws  have  been  passed,  au- 
thorizing payment  for  this  work,  and  the  amount 
will  not  probably  be  less  than  $50,000.  The 
amount  of  damages  paid  for  breaches  of  contracts 
and  the  amount  since  expended  on  these  contracts 
has  not  been  less  than  from  $700,000  to  $800,000. 
Besides,  these  contractors  have  claims  which  they 
insist  or  have  insisted  on  for  breaches  of  these 
contracts  to  about  $700,000  more.  Would  it  not 
then,  (said  Mr.  W.)  have  been  wiser  and  more  for 
the  dignity  and  honor  of  our  state  in  1841  to  have 
kept  faith  with  these  contractors  and  observed 
your  own  engagements',  when  doing  so  would  have 
coat  only  $1,700,000  more  than  you  have  already 
paid,  and  .secured  to  you  the  benefit  of  the  com- 
pleted contracts,  and  especially  when  it  is  certain 
that  these  very  works  you  have  abandoned  must 
and  will  be  shortly  resumed. 

Mr.  TILDEN  wanted  to  know  if  the  State  had 
not  made  more  money  in  breaking  contracts  than 
if  it  had  allowed  them  to  be  completed  : 

Mr.  VVORDEN  8md  that  was  a  mere  specula- 
tive question,  which  no  one  could  answer.  He 
only  knew  that  these  contracts  had  been  made  by 
the  state,  arid  the  faith  ot  the  state  was  pledged 
for  their  fulfilment.  The  gentleman  from  New 
York,  (Mr.  TILDEN,)  may  have  calculated  with 
accuracy  how  much  money  the  slate  has  made  "in 
breaking  contracts,"  it.  was  not  an  investigation 
he  (Mr.  W.)  had  gone  into.  So  much  for  the 
policy  of  1842. 

The  idea  ot  abandoning  the  public  works  at 
this  time,  had  the  sathe  origin  as  the  law  of  1842. 
The  gentleman  from  Herkimer,  had  endeavored 
to  sustain  his  proposition  on  several  grounds. — 
One  was  the  overshadowing  amount  of  the  state 
debt,  positive  and  contiegent,  as  the  gentleman 
termed  them.  Another  the  impolicy  of  com- 
mencing the  works  in  progress  ;  another,  that  no 
necessity  existed  for  the  enlargement,  and  that 
all  that  was  required  was  the  improvement  of  the 
present  canal,  as  he  now  proposes  ;  and  another, 
the  deferred  claims  of  the  General  Fund  on  the 
canals.  Mr.  W.  said  he  proposed  examining  these 


1108 


several  positions  in  Connection  wuh  the  tacts  pro- 
perly connected  with  them. 

In  the  outset,  Mr.  W.  said  he  admitted  the  state 
owed  a  large  debt.  This  debt  has  not  been  faiily 
or  truly  stated  on  this  floor,  and  it  is  very  difficult 
to  ascertain  Us  (rue  amount  from  documenls  fur- 
nished to  this  Convention.  Mr.  W.  said  he  hlam 
ed  no  one  tor  this,  nor  should  he  have  adverted  to 
this  contusion  in  stating  the  debts  in  the  public 
documents  had  not  the  gentleman  from  Herkirner 
(Mr.  H.)  done  so  by  way  of  explanation.  He 
might  again  refer  to  this  subject. 

The  debts  due  by  the  state,  said  Mr.  W.  are 
called  the  canal  debt,  and  the  General  Fund  debt. 
The  first  consists  of  debts  contracted  foi  the  con- 
struction of  the  canals.  The  latter  includes  all 
other  debts  of  the  state.  Mr.  W.  said  he  had  en- 
deavored to  arrange  these  debts,  and  to  state  them 
truly  ;  he  believed  he  had  been  able  to  do  so  from 
the  public  documents. 

The  canal  debt  said  Mr.  W.  grows  out  of  our 
canal  system.  He  had  prepared  a  table  showing 
the  cost  of  all  the  canals  of  the  state.  The  amount 
paid  and  the  amount  of  outstanding  stocks  for  the 
construction  of  each  canal,  and  the  rates  ot  inter- 
ests on  I  he  stocks  constituting  the  canal  debt, 
which  he  read,  as  follows  : — 

Name  of  canals.         Cost.          Am't  paid.      Am't  due  on 

outst'd'g  stocks. 

Erie  and  Cham.,  $8,401394  12  $8,059.919  60  $341,474  52 
Erie  Enlargem't  12,800,851  76  2,867,851  76  9,933,000  00 
Oswego.  665,439  35 

Cayusja  &  Sen'a  237,000  00 
Crooked  Lake,  156,776  00 
Chemung,  684,603  58 

Chenango,  2,4*0,000  00 

Black  River,  1,544,000  00 
Genesee  Valley,  3,794,000  00 
Oneida  Lake,  50,000  00 

Oneidalmp't,  69,276  13 


665,487  35 

150,000  00 

36,776  00 

36,000  00 

2,362,535  66 


87,000  00 

120,000  00 

648,600  58 

67,464  34 

1,544,100  00 

3,794,000  00 

50,000  00 

69,276  13 


(R  pott  of  Commissioners  of  Canal  Fund,  1846, 
p.  17) 

Mr.  WORDEN  said  although  the  aggregate  a- 
mount  of  I  he  general  fund  debt  or  all  Other  debts 
ot  the  stale  was  $5,762,854  37,  yet  it  miaht  be 
satisfactory  lo  the  committee  to  slate  the  items  of 
that  debt  which  were  taken  from  the  Comptrol- 
ler's report  to'  the  last  legislature  j  see  pages  7 
and  12  of  that  report.  They  were  as  follows, ex- 
cluding the  principal  of  the  Indian  Annuities  : — 
Stock  issued  to  John  Jacob  Astor,  $561,500  00 
Stock  issued  for  loans  from  the  bank 

Fund,  348,107  00 

Slock  issued  to  the  Ithaca  and    Os- 
wego R.  R.  Co  ,  315,700  00 
Stock  issued  to  the  Canajoharie  and 

Catskill  R.  R   Co,  200,00000 

Stock  issued  to  the  N.  Y.  and  Erie 

R.  R.  Co.,  3,000,000  00 

Temporary  loans  to  the  Treasury,          597,395  59 
Balance  due  specific  funds,  740,151  78 

The  latter  item  consists  of  moneys 
used  by  the  state  belonging  to  the 
following  specific  funds  : — $407,- 
183  07,  due  to  the  school  fund  ; 
$20,232  58,  due  to  the  Literature 
Fund  ;  $371.899  73,  due  to  the 
United  States  Deposite  Fund,  for 
capital  of  that  fund  ;  $38,853  05, 
due  to  the  Bank  Fund  ;  $57,517- 
47,  due  to  the  Mariners'  Fund  ; 
$181  25,  due  to  the  Long  Island 
Railroad  Co.'s  Sinking  Fund  ; 
making  the  above  am't  of  $740,- 
151  78,  after  deducting  $158,844- 
61,  in  the  Treasury,  total  General 


$30,723,335  94  $14,078,520  37  $16,647,815  57 
Stocks  have  been 
issued  under  the 
law  of   1846  to 
pay  land  dama- 
ges, &c.,  which 
are    not  yet  ap- 
portioned among 
the  several  canals, 
amount,  300,000  00  300,000  00 

$31,023  335  94  $14,078,520  37  $16  947,815  57 

See  Comptroller's  report  to  the  legislature  ot 
1846,  page  6.  Also  report  of  the  Commissioners 
of  the  Canal  Fund  to  the  same  legislature,  page 
17.  Also  Comptroller's  report  to  the  Convention. 
(Statement  B,  1,  continued.) 

The  slocks  outstanding  and  unpaid  after  the  1st 
July,  1846,  and  which  constitute  the  entire 
outstanding  canal  debt,  bear  interest,  as  follows, 
Tiz  :— 

Principal.  Interest. 

Stocks  at  7  per  cent.  $3,647,136  00     $255,299  52 
6       "  1,481,782  00         S8.906  92 

«  ft       «  11515,89757       575,79488 


$16,644,815  57     $920,001  32 
Add  the  stock  issued 
under  the   law  of 
1846,  at  6  per  cent, 
interest,  300,000  00         18,000  00 


$16,944,815  57     $938,001  32 


Fund  Debt, 


$5,762,854  34 


This  statement  of  the  amount  of  canal  debt, 
said  Mr.  W.  shows  it  as  it  existed  on  the  1st  July, 
1846,  and  agrees  with  the  Comptroller's  report  to 
the  Convention.  Doc.  47,  p.  35.  By  the  same 
document,  it  appears  that  the  funds  in  the  hands 
of  the  Commissioners  of  the  Canal  Fund,  on  the 
Isi  of  July  last,  were  as  follows  :  — 
Debls  due  from  broken  banks  and 

secured  by  the  Safety  Fund,  $568,659  71 

Amount  of  canal  funds  loaned  to  the 

city  of  Albany,  30,000  00 

One-half  of  the  canal  tolls  for  June, 

iay,  175,000  00 


Making  in  all, 


$773,659  71 


In  addition  to  this,  the  law  of  1846,  appropria- 
ted the  tolls  collected  on  railroads  as  a  sinking 
fund  to  pay  the  interest  and  principal  of  the 
stocks  issued  under  the  law  of  the  same  session, 
and  which  are  included  in  the  above  statement  of 
canal  debts.  These  tolls,  as  appears, said  Mr.  W. 
from  a  note  he  held  in  his  hand  from  the  chief 
clerk  in  the  Canal  Department,  were  about  $32,- 
000  and  he  also  understood  that  the  stocks  sold 
under  the  la'v  of  1846,  had  produced  a  premium 
of  about  $10,000,  all  of  which  funds,  as  they  were 
applicable  to  the  payment  of  the  canal  debt, 
should,  in  ascertaining  the  amount  of  that  debt,  be 
taken  into  the  account  and  deducted  from  the  out- 


1109 


standing  stocks,  which  would  leave  that   debt,  to 
be  provided  lor,  about.  $16,150,000  00 

The  other  debts,  being  the  General 
Fund  Debt,  as  staled  by  the  Comp- 
troller to  the  last  legislature  and 
the  Convention,  excluding  the 
principal  of  Indian  Annuities,  as 
stated  before,  amounted  to,  5,762,854  00 


Total  debts  of  the  state, 


$21,912,654  00 


The  annual  interest  on  this  debt  to  be  provided 
for  is  as  follows  : — 
Total  interest  on  canal  debt,  $938,001  32 

Deduct  interest  from  funds  on  hand 

say,  25,001  32 


Annual  interest  to  be   provided  for, 

on  canal  debt,  $913,000  00 

Total    interest    on    General    Fund 

Debt,  317,936  63 

Total  annual  interest  on  State  Debt  $1,236,936  63 

This  amount  of  debt,  Mr.  W.  .said  was  great  in- 
deed, and  when  presented  alone,  and  by  those 
seeking  to  mislead  the  public  judgment,  it  might 
appear  alarming,  but  this  debt  had  not  been  con- 
tracted in  th«  prosecution  of  wars,  of  conquest  or 
ambition.  It  had  not  been  created  to  pension  pub. 
lie  officers,  or  reward  political  profligates.  It  had 
nof.  arisen  like  those  British  debts,  to  which  the 
gentleman  from  Herkimer  had  so  oftenalluded,  to 
subsidise  foreign  princes,  and  enable  the  British 
crown  to  encircle  the  earth  with  its  power.  Every 
dollar  of  this  canal  debt  had  been  paid  to  labor,  to 
our  own  citizens  ;  it  had  made  happy  and  content- 
ed the  hearts  and  homes  of  thousands  who  had  toil- 
ed in  the  construction  ol  these  canals.  The  debt 
was  the  means  by  which  the  state  was  ever  the 
owner  of  canals  worth  more  than  forly  million  of 
dollars,  charged  with  only  about  sixteen  millions 
for  the  cost  of  consi ruction.  The  net  revenues  of 
these  canals,  over  the  cost  of  superintendence 
and  repairs,  for  the  current  year,  were  now  ascer- 
tained, and  amounted,  as  the  gentleman  from  Her- 
kimer stated  the  other  day,  to  over  $2,100,000,  be- 
ing nearly  a  million  of  dollars  more  than  the  in- 
terest on  the  entire  debt  ot  the  State,  and  afford- 
ing you  from  your  canals  alone  a  net  revenue  of 
over  $L,200,00(J.  Was  there  any  thing  alarming 
in  such  a  state  of  things?  Yoq  have  expended  on 
your  unfinished  canals  more  than  your  entiie  ca- 
nal debt.  On  the  Erie  enlargement  alone  you  have 
paid  over  $12,000,000,  and  yet  you  have  received 
liltle  advantage  from  this  enlargement,  and  can 
not  until  you  complete  it  or  expend  much  more. 
From  your  finished  works  your  revenues  exceed 
as  before  stated,  $1,200,000  over  the  canal  debt  of 
the  State.  And  every  dollar  of  debt  you  have  in- 
curred or  are  now  under  for  the  construction  of 
your  canals,  has  resulted  in  the  creation  of  a  State 
property  double  in  value  to  the  debt.  Some  other 
reason,  then,  should  be  assigned  for  the  abandon- 
ment of  the  public  woiks  besides  the  existence  of 
such  debt. 

The  gentleman  from  Heikimer  has  insisted  up- 
on another  debt  as  existing  against  the  canals, 
which  he  now  claims  should  be  paid  off' before  any 
further  amount  of  tolls  or  revenues  from  them  are 


applied  to  their  completion.  This  is  the  amount 
claimed  to  be  due  to  the  general  fund  from  the  ca- 
nals. And  one  of  the  provisions  in  the  article  un- 
der consideration,  reported  by  the  gentleman  from 
Herkimer,  requires  "$672,500  of  the  revenues  of 
the  canals  to  be  annually,  on  each  fiscal  year,  paid 
into  the  treasury  "in  liquidation  of  the  State 
claims  for  advances  to,  and  payments  for,  the  ca- 
nals." This  provision  on  its  face  assumes  that  the 
canals  are  indebted  to  the  State  for  a  principal 
sum  of  money,  the  interest  of  which,  at  some  given 
rate,  will  be  equal  to  the  proposed  yearly  payment. 
The  nature  of  this  claim  and  the  items  compo- 
sing it  will  be  found  in  schedule  G  annexed  to 
the  report  of  the  Comptroller.  Convention  Doc. 
No.  47.  It.  consists  of  moneys  specially  appropri- 
ated to  the  construction  of  the  Erie  and  Cham- 
plain  canals,  and  derived  from  the  following  sour- 
ces, viz : — 

Salt  duty  from  1817  to  1836,  $1,055,458  06 

Vendue'duty,  3,592,039  05 

Steamboat  lax,  73,509  99 

Paid  by  the  general  fund  for  defi- 
ciencies of  the  revenues  of  the 
lateral  canals  to  pay  these  ex- 
penses, and  the  interest  on  the 
moneys  borrowed  for  their  con- 
struction, 1,386,498 
Proceeds  of  the  sales  of  land,  103,754 
Direct  tax, 


$7,491,824  74 

In  the  above  table  the  Cumptrol. 
ler  allows  a  credit  to  the  canals 
for  moneys  drawn  (rom  the  tolls 
received  upon  them  and  paid  in- 
to the  State  Treasury  for  the 
uses  of  the  general  fund  of  2,137,602  73 


Total  amount  received  as  collate- 
ral  aid  in  the  construction  of  the 
canals,  $6,354,222  01 

The  Comptroller,  by  compounding  the  interest 
on  the  several  sums  as  they  were  annually  receiv- 
ed and  applied  to  the  consiruction  of  the  canals, 
at  the  rale  of  5  per  cent  ,  makes  the  amount  due 
to  the  general  fund  from  the  canals  on  the  30th  of 
Sept.,  1844,  $13,451,167  74;  and  on  the  pretence 
that  this  amount  is  an  actual  debt  or  claim  in  fa- 
vor of  the  State  againsl  the  canals,  the  chairman 
of  the  committee,  on  the  statement  of  the  Comp- 
troller, proposes  to  make  the  constitutional  provi- 
sion reported  by  him,  in  order  that  such  claim  may 
be  liquidated  and  paid. 
A  preliminary  inquiry,  said  Mr.  W. ,  arises  as  to 

he  rmht  or  authority  of  any  member*of  this  Con- 
vention or  of  the  Convention  itself,  to  set  up  any 
such  claim,  or  to  insist  on  any  provision  for  its 

iquirlation.  The  State  undertookjhe  construction 
of  the  Erie  and  Champlain  canalsupon  considera- 

ions  ot  public  policy  in  reference  to  the  interests 
of  the  whole  State.  The  canals  as  they  now  exist 
are  the  property  of  the  State,  whatever  their  value 
may  be.  The  means  appropriated  by  law  for  their 
construction  were  also  the  property  of  the  State, 
and  were  so  appropriated,  not  as  loans  to  the  ca- 
nals, but  as  permanent  applications  in  the  way, 
which  in  its  judgment  was  best  calculated  to  ad- 

ance  its  own  interests.  It  would  be  about  as  sen- 
sible for  an  individual  who  has  built  a  house  or 


1110 


bought  a  farm  to  say  his  house  or  farm  is  indebted  ' 
to  him  for  the  amount  paid  for  such  house  or  farm, 
as  it  would  be  to  say  the  State  of  New- York  owes 
itself  so  much  money  as  it  can  be  shown  its  canals 
have  cost. 

This  assumption  that  the  State  has  a  claim  on 
the  canals  is  without  warrant  in  the  laws  of  the 
State,  and  only  serves  to  confuse  and  mystify  the 
condition  of  our  State  finances.  The  act  of  1817 
specifically  appropriated  the  auction  and  salt  du- 
ties  and  the  steamboat  tax  and  other  revenues,  to 
the  payment  ot  the  debt  and  the  interest  thereon, 
to  be  incurred  in  the  construction  of  the  Erie  and 
Champlain  canals,  and  by  this  act  the  duties  ou 
salt  were  raised  from  three  cents  to  a  shilling  on 
the  bushel.  By  the  Constitution  of  1821,  these 
duties  and  revenues  were  appropriated  and  pledged 
to  the  payment  of  the  Erie  and  Champlain  canal 
debt.  They  were  set  apart  by  law  and  Constiiu. 
tion  to  the  aid  of  these  public  works,  and  no  where 
in  the  statutes  of  the  Slate  is  there  any  provision 
authorizing  any  State  officer  or  any  body  else  to 
consider  or  to  pretend  that  by  such  appropriation 
any  claim  whatever  is  created  against  the  canals 
to  be  repaid.  They  have  gone  towards  the  con- 
struction of  these  canals  which  are  the  property 
of  the  State,  to  be  dealt  with  as  any  other  State 
property,  and  the  assumption  contained  in  the 
proposition  of  the  chairman  of  this  committee  No 
3,  is  without  any  warrant  whatever.  No  such 
thing  in  la  v,  or  in  the  fair  construction  of  the  laws 
of  the  State,  as  a  claim  by  the  State  on  the  pro- 
perty of  the  State,  exists.  The  idea  is  an  absurd- 
ity. It  is  impossible. 

It  is  true,  said  Mr.  W.,  as  stated  by  the  Comn- 
troller,  that  the  auction  and  salt  duties  from  1817 
to  1837,  and  other  incidental  revenues,  have  been 
appropriated  to  the  construction  of  the  Erie  and 
Champlain  canals,  and  that  these  appropriations 
over  and  above  the  amount  taken  from  the  canal 
revenues  and  applied  to  the  use  of  the  State  gov- 
ernment is,  as  contained  in  the  Comptroller's  ta- 
ble, $5,354,222  01.  Mr.  W.  said  he  wished  it  un- 
derstood that  this  amount  included  all  that  had 
ever  been  raised  under  the  tax  law  of  1842,  and 
from  every  other  source,  except  from  the  tolls  and 
revenues  of  the  canals,  for  their  construction  and 
the  payment  of  principal  and  interesi  borrowed 
for  their  construction.  This  whole  claim  against 
the  canals,  therefore,  arises  from  the  items  before 
stated. 

Mr.  W.  said  he  also  desired  it  to  be  remembered 
that  when  the  canals  weie  commenced  in  1S17, the 
duties  on  salt  manufactured  in  the  western  di«- 
trict,  were  increased  from  three  to  twelve  and  a 
half  cents  per  bushel.  That  this  was  done  for  the 
express  and  avowed  purpose  of  imposing  a  local 
tax  upon  the  people  of  the  western  -part  of  the 
State  using  the  aajt,  and  who  were  supposed  to  be 
benefited  by  the  construction  of  the  canal.  It  is 
admitted  in  one  of  the  reports  read  by  the  gentle 
man  from  Herkimer,  in  support  of  his  claims  a 
gainst  the  canals,  that  the  salt  and  auction  duties 
have  been  greatly  increased,  above  what  they  oth- 
erwise would  have  been,  by  the  construction  of 
the  canal.  This  pretence  of  claim  against  theca 
nals  has  ever  been  urged  by  the  enemies  of  the 
system  of  internal  improvement,  for  the  purpose 
of  awakening  local  and  sectional  prejudices,  on  the 
pretence  that  the  canals  have  swallowed  up  the 


general  fund  of  the  State.  It  has  never,  however, 
Deen  carried  as  far  as  is  now  insisted  on.  What- 
ever of  right  or  justice  there  may  have  been  in  this 
claim,  said  Mr.  W  ,  it  is  special  and  direct  against 
:he  Erie  and  Champlain  canals,  and  has  already 
seen  arranged  on  most  just  and  equitable  terms  to. 
wards  the  whole  State. 

By  the  Constitution  of  1821,  the  tolls  of  the  Erie 
and  Champlain  canals  were  pledged  and  appropri- 
ated to  their  completion,  and  to  the  payment  of  the 
interest  and  the  redemption  of  the  debt  contract- 
ed in  their  construction,  and  it  was  declared  that 
the  tolls  should  not  be  diverted  or  reduced,  until 
he  payment  of  such  principal  and  interest.  They 
could  not,  therefore,  be  pledged  or  appropriated, 
hile  the  Erie  and  Champlain  canal  debt  remain- 
ed unprovided  for,  to  any  other  purpose.  They 
had,  however,  accumulated  in  1837  to  a  sum  suffi- 
cient to  pay  off  the  Erie  and  Champlain  canal 
debt,  after  which  period  the  salt  and  auction  du- 
ties were  restored  to  the  general  fund,  and  a  yearly 
appropriation  made  out  of  the  canal  toils  to  the 
support  of  the  State  government.  Prior  to  the  pe- 
riod when  these  tolls  had  accumulated  sufficiency 
to  pay  the  Erie  and  Champlain  canal  debt,  the 
State  had  authorised  the  construction  of  all  the  la- 
teral canals.  The  money  borrowed  for  their  con- 
struction, and  the  interest  thereon,  was  a  charge 
on  the  general  lund,  and  the  interest  paid  out  of 
such  fund — the  Constitution  prohibiting  any  ap- 
plication of  the  canal  lolls  for  that  purpose.  All 
these  lateral  canals  were  authorized  by  acts  passed 
in  1836,  and  prior  thereto.  In  1836  acts  tvere 
passed  for  the  construction  of  the  Genesee  Valley 
and  Black  River  canals,  and  a  loan  or  $2,000,000 
authorized  for  the  first,  and  $800,000  for  the  latter. 
In  1841  your  treasury,  or  general  fund,  stood 
charged  with  debts  and  liabilities,  contracted  for 
the  following  canals,  viz.  : — 

Oswego  canal,  $565.43735 

Cayuga  and  Seneca  canal  237,000  00 

Crooked  Lake  canal,  156,776  00 

Chemung  canal,  684.600  00 

ehenangb  canal,  2,420  000  00 

Black  River  canal,  (whole  cost,)    1,544000  00 
Genesee  Valley  canal,  3,794,000  00 

$9,401,813  35 

You  had  no  means  in  the  treasury  to  pay  this 
debt,  or  the  interest,  and  it  became  necessary  to 
provide  means  for  paying  such  interest.  Upon  the 
principle  the  gentleman  from  Heikimer  now  goes, 
and  to  that  extent,  Mr  W.  said  he  went  with  him. 
Not hin»  could  be  more  unjust  than  to  tax  the  pro- 
perty coming  from  western  New- York,  to  pay  the 
debt  cieatod  for  the  construction  of  the  Chenango 
canal,  or  any  of  the  lateral  canals;  but  it  was  then 
consideied  that  the  Erie  canal  had  received  aid 
from  the  general  fut.d,  as  before  slated,  that  the 
tolls  on  that  canal  were  rapidly  increasing,  and 
probably  would  be  sufficient  to  pay  the  debt  and 
interest  on  the  cost  of  the  lateral  canals.  A  law 
was  therefore  passed  reducing  ail  the  canals  into 
one  system,  and  providing  for  the  entire  payment 
of  principal  and  interest  on  the  debts  contracted 
for  the  construction  of  the  lateral  canals,  out  of  the 
tolls  of  the  Erie  canal,  (such  is  the  effect  of  that 
law,  as  the  lateral  canals  do  not  pay  the  interest 
on  their  cost  and  repairs.)  Thus,  in  1841,  the 
Erie  canal  became,  in  effect,  charged  with  the 


1111 


debis  of  the  lateral  canals,  and  ihe  general  fund 
was  relieved  to  that  amount,  in  addition  to  which 
it  was  provided  lhat  $200,000  annually,  should  be 
paid  nut  of  the  canal  lolls  into  the  treasury  lor  the 
support  of  the  State  government.  This  was  sup- 
posed to  be  a  lair  and  just  arrangement  ot  the 
claims  set  up  against  the  canals  in  favor  of  the  gen- 
eral  fund.  It  was  recognized  in  the  act  of  1842, 
and  in  the  act  of  1844  explanatory  of  that  act. 

Prior  to  1841  there  had  been  paid  from  the  ca- 
nal  tolls  into  ihe  treasury  for  State  expenditure, 

$1,137,602 
Principal  of  the  annuity  of  $200,000, 

charged  on  the  canals,  under  the 

act  oi  1841,  at  5  per  cent,  equal  to        4,000,000 
Debts  ol  the  Literal  canals,  charged 

to  the  Erie  canal,  under  the  act  of 

1841,  9,401,813 


Total  am't.  in  1841  and  prior  thereto,  $14,539,415 
cnaiged  on  the  Erie  and  Champlam  canals 

In  addition  to  the  amount  noA  actually  charged 
on  the  tolls  of  the  Erie  canal,  the  gentleman  from 
Heikimer  proposes  to  fasten  an  additional  charge 
on  that  canal  of  a  yearly  annuity   or  lax  ol  $67 
500,  equ^l   to  a  gross  charge,  at  five  per  ceiil,  ol 
$13,450,000,  which  he  assumes  to  be  "in  liquida 
tion  ol  ihe  Slate  claims  lor  advances  to  and  pay- 
ments for  the   canals."      Making  in  all  that  the 
Erie  canal  is  to  pay,   under  the  law  of  1841,  and 
under  the  proposition  now  insisted  on,  to  ihe  gen 
eral  fund,  &c.,  in  relief  of  the  debts  of  the  general 
fund,    the   sum  of  $27,989,415.     And  we  are  told 
that  this  is  jus',  that  good  faith  to  all  parts  of  the 
State  require  the  canals  now  to  be  charged  with 
this  additioj.al  debt-  Mr.  W.  said  he  could  not  re- 
gard it  in  any  such  lignt,  but  in  an  entirely  differ- 
ent one.     It  was  an  attempt  to  tax  the  west   with 
the  payment  of  the  State  debt,  incurred  for  IO.IMS 
to  the  New- York  and  Erie  rail-road,  and  other  in 
solvent  rail  roads,  to  about  three  millions  and  a  hal 
of  dollars,  and  all  the  other  debts  of  the  Stale  in 
curred  for  the  support  of  the  government,  and  then 
to  throw  the  whole  expenses  of  the  State  on  the 
Erie   canal,  to  be  paid  by  the  west.     The  gentle 
man  from  Chautauque  (Mr.  PATTERSON)  the  othei 
day  asked  the  gentleman  from  Herkimer  what  par 
of  those  tolls  would  be  collected  between  the  Hud 
son  river  and  Utica  ?     The  enquiry  was  pertinent 
but  the  gentleman  could  not  or  would  not  answer 
There  was  no  difficulty  in  giving  the  answer,  am 
the  fact  enquired   about  is   material,  to  show  on 
what  part  of  the  State  these  burthens  will  fall. — 
The   whole   amount  of  tolls   collected  in  1845  on 
the  Erie  canal  between  the  Hudson  river  and  Uti 
f       ca,  was  $30,586  less  than   half  of  the  amount  col 
lected  in  the   county  of  Wayne   alone.     L-irge  a 
mounts  of  tolls  are  collected  at  Albany  and  West 
Troy,  on  ascending  freight ;  but  a  very  inconside 
rable  portion  of  this  amount  is  on  property   stop 
ping  east  of  Utica.     The   whole   amount   of  toll 
paid  on  the  Erie  canal  for  ascending  and  descend 
in?  freight,  east  of  Syracuse,  is  probably  less  tha 
$200,000  per  annum,  and  probably  not  more  tha 
enough  to  pay  the   expenses  of  the  canals,  east  c 
that  place;  the  residue  is  on  property  coming  from 
and  goins  to  and  west  of  Syracuse.     That  proper 
ty  it  is  now   proposed  to  tax,   (with  the  taxes  an 
burthens  already  imposed  and  for  other    purpose 
than  to  pay  lor  the  construction  of  the  Erie  canal, 


127,000,000.  The  injustice  of  doing  so  is  appa- 
ent.  No  claim  tor  auction  or  salt  duties, 'that 
ave  gone  into  the  construction  of  the  Erie  and 
/hamplain  canals,  can  justify  the  measure. 
It  has  been  claimed  that  the  canals  have  bene- 
ited  western  New-York,  to  the  prejudice  of  the 
iver  counties,  and  therefore  western  New-York 
hould  submit  to  the  imposition  of  these  burthens. 
Vlr.  W.  said  this  was  mere  assumption;  since  the 
ommencement  of  the  Ene  canal,  the  taxable  real 
nd  personal  property  of  the  State  had  about  dou- 
»led.  It  now  exceeded  six  hundred  millions  of 
lollars;  of  the  three  hundred  millions  increase, 
bout  one  hundred  and  ninety-seven  millions  was 
he  increase  of  fifteen  counties,  including  Rich- 
uond  and  Long  Island,  Albany  a;id  Rensseiaer.and 
he  counties  below,  on  each  side  of  the  North  river. 
The  city  of  New- York  had  increased  since  the 
rnmencement  of  the  Erie  canal,  from  about  87,- 
)00  inhabuants  to  300,000-  The  city  of  Brooklyn 
»vas  a  new  city,  the  creation  of  the  canal.  Other 
cities  had  vastly  increased  on  the  North  river  in 
copulation.  The  pietence  that  the  Erie  canal  had 
njured  the  eastern  part  ol  the  State  was  an  a-sump- 
ion.  It  was  useless  to  throw  arguments  away  on 
:hose  who  made  it. 

One  word  more,  said  Mr.  W.,  on  this  claim  on 
he  canals  by  reason  of  salt  and  auction  dunes,  to 
ihow  its  injustice. 

The  salt  and  auction  duties  received  into  the 
:reasury  since  1817  may  more  properly  be  consid- 
ered to  aiise  from  the  construction  ot  the  canals. 
We  are  in  one  sense  indebted  to  the  canals  for  the 
auction  and  salt  duties,  and  not  to  the  auction  and 
salt  duties  for  the  canals. 

No  salt  duties  were  received  by  the  State  prior 
to  1803.     The  amount  received  from  1803  to  1817, 
a  period  of  14  years,   was   $45  082  52.     For   the 
same    number  of  years,   from  1818  to  1831,  inclu- 
sive, a  like  period  of  14  years,  the  salt  duties  a- 
rnounted  to   $1,301,663  91,  being  an  excess   over 
the  14  preceding  years  of  $1,256~581  39. 
The  nett  proceeds  of  auction  du- 
ties received  into  the  treasury 
from  1784  to  1816,  being  a  peri- 
od oi  32  years,  is  $971,461  14 
The  whole  amount  of  auction  du- 
ties received  into  the  treasury 
from  1817  to  1836,  inclusive,  be- 
ing the  period  they  were  appro- 
pi  lated    to   the   canals,  in 'the 
whole  20  years,  are                           3,592,039  05 


Excess  of  auction  duties  for  20  yrs. 
after  the  commencement  of  the 
construction  of  the  canals,  over 
32  years  before  such  commence- 
ment, '  $2,620,577  91 

Since  1836  the  auction  and  salt  du- 
ties have  been  restored  to  the 
general  fund  and  applied  to  the 
ordinary  expenditures  of  the 
State.  The  amount  of  salt  du- 
ties received  into  the  State  trea- 
sury since  1836,  and  thus  ap- 
plied, amounts  to  $1,081,674  81 

The  amount  of  auction  duties  re- 
ceived since  1836,  is  1,725,476  43 


1112 


Total  auction  and  salt  duties  re- 
ceived since  1836,  being  10  yrs.    $2,807,151 

Total  salt  duties  re- 
ceived before  the 
commencement  of 
the  canals,  during 
14  years,  $45,082  52 

Total  of  nett  auction 
duties  from  1784  to 
1816,  being  3b'  yrs. 
prior  lo  commence- 
ment  of  the  canals,  971,46114  1,016,5436 


Excess  of  auction  and  salt  duties 
lor  10  years,  since  1836,  applied 
to  the  ordinary  expenses  of  the 
government,  over  the  total  a- 
mount  received  prior  to  the 
commencement  of  the  canals  in 
1817, 


$1,780,607  5 


In  addition  to  the  total  amount  of 
auction  and  salt  duties  received 
into  the  State  freasuiy  since 

1836,  and  applied  to  the  ordina- 
ry expenditures  of  the  State  go- 
vernment, being  in  all  $2,807,151  2 

The  State  has  also  taken  from 
the  canal  tolb  and  applied  since 

1837,  to  the  ordinary  expendi- 
tures of  the  State  government, 
and  paying  deficiencies  on  the 
lateral  canals,  as  stated  in  the 
comptroller's  report  before  re- 
ferred to,  2,137,602  73 


Making  in  all  $4,944,753  97 

That   the   account  may  be  fairly 

stated   with    all    the  canals,  on 

the  above  view  ot  the  case,  the 

amount  paid  out  of  the  general 
g"  fund  tor  the  deficiencies  of  lal'ral 

canals,  as  before  stated,  should 

be  deducted,  being  1,386,498  8b 


Balance  received  into  the  general 

fund  since  1836  for  the  support 

of  the  government  from  canals 

and  auction  and  salt  duties,  $3,558,255  09 

Those  who  claim  that  on  principles  of  equity 
and  fairness,  the  State,  as  against  the  canals,  has  a 
right  to  abstract  over  $600,000  annually  from  the 
canal  revenues,  must  prove  from  the  data  here  giv- 
en, that  the  auction  and  salt  duties,  which  prior  to 
1817,  amounted  to  only  $1,016,543  6G,  would  with- 
out the  aid  of  the  canals  since  their  commence- 
ment in  1817,  have  amounted  to  the  sum,  derived 
from  the  auction  and  salt  duties  and  canal  tolls,  of 
$3,558,255  09.  Indeed  there  is  about  as  much 
justice  in  a  claim  against  the  State  at  large,  for 
this  increase  of  revenue  for  the  support  of  the  go- 
vernment, as  there  is  in  that  now  and  heretofore 
set  up  against  the  canals  on  account  of  the  auction 
and  salt  duties. 

Mr.  VV.  said  he  would  next  proceed  to  consider 
what  had  been  called  the  contingent  Railroad  debt. 
The  State  has  issued  and  loaned  its  stock  to  cer- 
tain corporations  for  which  it  is  contingently  lia- 
ble, and  for  which  our  stocks  are  now  outstanding. 
These  loans  are  as  follows,  viz  : 


To  the  Delaware  and  Hudson  Ca- 
nal company, 

"         Auburn  and  Syracuse  Rail, 
road  company, 

"         Auburn  and  Roch.  Rail- 
road company, 

"        Hudson   and  Berk.  Rail- 
road company, 

"         Tonawanda  Railroad  com- 
pany, 

Long  Island  Railroad  com- 
pany, 

'*    .     Schenectady     and     Troy 
Railroad  company, 

«*         Tioga  Coal  and  Iron  Man- 
ufacturing company, 


There  has  been  paid  into  the 
reasury  for  the  final  extinction  of 
hese  contingent  debts,  as  follows, 
viz.: 

3y  the  Auburn  and  Ro- 
chester Railroad  co.  $23,157  31 
Jy  the  Tonawanda  R. 

road  company,  7,733  59 

By  the  Hud.  and  Berk. 

Railroad  company,      17.359  20 
By  the  Tioga  Coal  and 

Iron  Manufac  co.,          944  74 
By  the  Long  Island  R. 
road  company,  3,181  25 


$793,000  00 

200,000  00 

200,000  00 

150,000  00 

100,000  00 

100,000  00 

100,000  00 

70,000  00 

$1,713,000  00 


52,376  09 


'otal  contingent  debt  over  funds 
in  the  treasury,  see  Comptrol- 
ler's report  to  last  sess.  p.  34, 35,     $1,660,623  91 
These   companies  regularly  pay  the  interest  on 
le  stocks  loaned  to  them,  and  there  is  no  reason- 
ble   apprehension    that    they  will  fail  to  pay  the 
)rincipal.     These  loans  are  secured  by  liens  prior 
o  all  others  upon  the  property  of  the  respective 
orporations,  which  in  point  of  value  isabundanty 
ufilcient  to  pay  the  debt  tor  which  they  are  liable, 
has  been  said  by  the  gentleman  from  Herkimer, 
iat  it  is  very  certain  that  a  portion  of  these  loans 
ill  fall  upon  the  State  to  pay,  and  he  was  under- 
ood  to  say  the  amount  thus  to  be  paid  will  ex- 
eed  $400,000.     He  did  not   designate   which  ot 
iese  corporations  will  prove  bankrupt.     Leaving 
e  subject  as  he  did,  throws  discredit  upon  them 
1,  whether  justly  or  unjustly, 'those  interested  in 
ern  will  be  able  to  appreciate. 
The  remaining  alleged    debt,  viz:    the  United 
ates  deposit  fund,  Mr.  W.  said  he  would  now  ex- 
mine.  It  must,  said  he,  be  manifest  to  every  gen- 
eman  that  will  examine    this  subject,  that    this 
eposite  can  never  be  classed    among  the  debts  of 
le  state.     It  is  a  portion  ot   the  surplus  revenues 
the  federal  government,  which  by  a  law  of  Con. 
ess  was  deposited  with  the  several  states  of  the 
Jnion:  no  one  ever  supposed  ii  would  be  recalled, 
d  no  administration,  under  any  conceivable  cir- 
rnstances,  will  ever  attempt  to  do  so.     The  se- 
rai states  will  never    consent  to  its   repayment, 
lould  the   demand  however  be  made,    this  state 
las  every  dollar  so  safely  invested  as  to  be  able  to 
ake    repayment  without  taxation  or  increase  of 
3t.     It  was  therefore  with  surprise  that  lie  had 
leard  the  gentleman  from  lierkimer  advert  to  this 
posite  fund  as  "constituting  a  debt  the  most  sa- 


1113 


cred  that  can  be  imposed  uu  a  goveinment  to  pay." 
And  Ihen  proceed  to  class  it  among  the  debts  of 
the  state  to  be  provided  for.  Although  the  depo- 
sile  fund  has  never  been  considered  a  debt,  on  the 
other  hand  it  has  never  been  regarded  as  proper 
to  use  it  in  any  way  so  as  to  extinguish  or  impair 
the  principal.  It  has  therefore  been  kept  invio- 
late and  separate  from  all  other  funds  of  tht 
eminent,  and  the  greater  portion  of  it  is  loaned 
out  on  bond  and  mortgage,  and  the  residue  in  the 

:iv;fj'iry  is  only  regarded  as  a  debt,  and  is 
classed  am.uvj;  the  debts  of  the  general  fund,  in 
.•nt  of  the  debts  of  the  s'.tte,  as  he,  Mr. 
W.,  hail  stated  them.  Heretofore  those  disposed 
to  swell  the  stale  debt  in  the  public  estimation, 
have  been  able  to  do  so  by  keeping  out  of  view 
large  sums  in  the  hands  of  the  commissioners  of 

tiral  tund  applicable  to  the  payment  of  the 
canal  debt.  These  sums  from  1841  to  1845  have 
r, m^.'d  horn  two  to  three  millions  of  dollars.  Be- 
tween tin:  close  of  the  fiscal  year  1844,  and  this 
nt-riod,  si,Uti9,U90.0l  of  canal  stocks  have  been 
paid  and  cancelled,  and  now  the  actual  debt  can 
only  be  given,  it  therefore  seems  convenient,  in 
order  to  keep  up  the  idea  of  a  vast  outstanding 
debt,  th.it  the  United  States  deposite  fund  should 
be  clashed  among  the  debts  of  the  state,  which  is 
f  >r  the  first  time  done  by  the  Comptroller  in  Con- 
vention document  No.  72,  page  18,  where  he  says 
that  this  deposite  fund  is  more  properly  classed 
among  the  debts  of  the  state,  and  he  then  re- 
marks: 

''They"  meaning  the  canals*  "may  be  regarded 
as  mortgaged  ior  the  following  sums : 

Principal  o:' canal  debt, $16,944,815  57 

Insolvent  railroad  debts, 3,515,700  00 


Contingent 


do. 


1,713,000  00 


General  fund  debt,. . 2,369,849  24 

Due.  United  Stales  tor  moneys  de- 
posited for  safe  keeping, 4,014,520  71 


Total 


$28,557,885  52 


The  gentleman  from  Herkimer,  (said  Mr.  W.) 
has  also  spoken  of  the  em  ire  debts  of  the  State  as 
amounting  to  the  above  sum,  and  neither  he  nor 
the  Comptroller,  on  the  assumption  that  this  is 
tne  amount  o!  debt,  states  what  is  most  material 
to  be  known  in  connection,  viz:  that  the  entire 
canal  df-:bt  is  stated  without  reference  to  funds  on 
,lhat  the  entire  amount  loaned  to  paying 
railroads,  without  deducting  the  sums  they  have 
paid  into  the  treasury  as  a  sinking  fund,  is  also 
s'ated.  The  amount  of  the  United  States' deposite 
fund  is  nl<o  stated  ut  its  lull  amount,  although 
;  1,020.9s1  of  that  fund  is  loaned  on  bond  and 
mortgage.  Eleven  bundled  dollars  is  invested 
in  our  State  stocks,  and  $37 1, 809.73  is  in  the  trea- 
sury of  the  State,  and  is  included  in  the  general 
fund  debt,  as  would  IK?  se;en  by  referring  to  the 
items  of  that  debt,  as  he  (Mr.  W  )  had  stated 
rhein.  The  Co.«ipt roller  has  therefore  included 
the  la'tpr  named  sum-*  twice  in  the  estimate  of  his 
debt.  First  a>  a  debt  to  the  United  States  ;  second 
as  a  debt  due  by  the  general  fund  to  the  United 


oi    the  -'.:,in.il  fund,    the  same 
amount  being  included  in  the  U . 
depo^iU' .  luml  debt, $372,999  73 

Omission  to  creditor  reter  tosini<ing 

fund  of  paying  railroads, 52,570  09 

Omission  to  state  the  amount  of  ca- 
nal funds, 773,059  71 


States  deposite  fund.      1'hus,  even    on  the  ground 


assumed,  the  debt  is  exaggerated  in  the  following 
amounts 


rs  in  the  foregoing  statement  of 
debt  by  the  gentleman  from  Her- 
kimer  and  the  Comptroller,. ...  $1,199,035  53 


But  really,  after  all  the  parade  that  has  been 
made  by  the  gentleman  from  lieikimer  about  the 
U.  S.  deposite  fund,  and  the  contingent  railroad 
debts,  he  tacitly  admitted ,  and  Mr.  VY.  said  he  be. 
lieved,  in  direct  terms  that  there  was  no  reasona- 
ble apprehension  that  the  securities  in  which  the 
United  States  deposite  fund  is  invested  are  insuffi- 
cient,  and  that  at  the  most  the  contingent  debt  of 
the  railroads,  the  State  would  be  obliged  to  pay, 
would  not  exceed  some  $400,01)0.  What  object 
has  there  been  then  in  parading  these  debts  in  the 
reports  to  this  body,  and  in  the  gentleman's  speech 
as  has  been  done?  Is  it  to  influence  the  Conven. 
tion  or  the  public,  or  to  raise  a  fictitious  or  imagin- 
ary state  of  things  in  regard  to  our  State  debts,  m 
order  to  prevent  the  public  from  taking  a  cairn 
and  considerate  view  of  the  actual  condition  of  the 
State  finances  ?  and  to  secure  the  adoption  of  pro- 
visions in  the  constitution  that  will  arrest  the  pro- 
secution of  the  unfinished  canals  r  Mr.  W.  said 
he  had  no  design  to  be  understood  as  conveying 
the  idea  that  the  Comptroller  or  the  other  State 
officers  intentionally  mis-stated  the  debt  of  the 
State.  He  did  not  think  so.  It  was  not  for  any 
such  reason  that  the  difficulty  so  frequently  ex- 
pressed in  understanding  the  reports  arose.  All 
the  facts  stated,  so  far  as  he  had  been  able  to  dis- 
cover, were  substantially  true,  but  there  were  fre- 
quently manj  facts  connected  with  those  staled, 
materially  qualify  ing  or  altering  their  effect,  which 
were  withheld.  Thus  Jhe  Comptroller  in  his  re- 
port to  the  Convention,  Doc.  Wo.  47,  p.  5,  ^i.it.'s 
that  the  ascertained  canal  debt  on  the  1st  April, 
1842,  was  $21,179,019^1.  The  gentleman  from 
Herkimer  has  reierred  to  this  statement  as  con- 
taining the  truth.  It  he  intended  to  use  this  truth 
for  any  fair  ground  of  argument,  he  should  also 
have  stated,  what  he  and  the  Comptroller  entirely 
omitted  to  do,  viz:  that  although  the  ascertained 
canal  debt  on  the  1st  April,  1842,  was  as  stated, 
yet  that  there  was  a  large  fund  tnen  in  the  hands 
of  the  commissioners  of  the  canal  fund  to  pay  this 
canal  d>jbt.  The  precise  amount  of  this  fund  on 
the  1st  April,  1842,  Mr.  W.  said,  he  could  not 
without  reference  to  the  documents,  state.  At 
the  close  of  the  fiscal  year  1841,  the  funds  in  the 
hands  of  the  commissioners  of  the  canal  fund,  were 
1,037.25,  and  at  the  close  of  the  fiscal  year 
Ib42,  they  amounted  to  ^2,1 7'J,5G9.3i.  These 
facts,  for  the  purpose  of  fairly  and  accurately  un- 
derstanding tiie  amount  of  the  canal  debt,  should 
be  known  and  stated,  as  they  reduced  by  that 
amount  for  all  practical  or  financial  purposes  the 
debt  of  1842,  as  staled  by  the  Comptroller  and  the 
iioni  Ili-ikimer.  From  1842  to  the 


presi.  nt,  especially  in  the  Comptroller's  reports, 
these  funds  applicable  to  the  payment  of  the 
canal  debt,  have  either  been  kept  out  of  view, 

114 


1114 


or  not  prominently  stated,  and  it  is  only  by  refer 
ring  to  the  report  of  the  commissioners  of  the  ca 
nal  fund,  that  the  amount  of  funds  in  their  hand: 
applicable  to  the  payment  of  the  canal  debt  is  as 
certained.  The  Comptroller  in  his  annual  repor 
of  1846,  pages  7  and  9,  accurately  states  th< 
amount  of  the  canal  debt  at  $19,690",020.77,  and 
the  debt  of  the  general  fund  (improperly  including 
the  principal  of  Indian  annuities)  at  $5,885,549.24 
making  in  all  $25,576,670.01 ;  yet  there  was  in 
the  hands  of  the  commissioners  of  the  canal  fund 
as  appears  by  their  report,  page  1,  $2,712,730  06 
applicable  to  the  payment  of  the  canal  debt.  Hac 
this  latter  tact  been  stated  by  the  Comptroller,  al 
who  read  his  report  would  have  at  once  perceivec 
the  real  debt  unprovided  for,  was  but  $22,862,- 
839-95.  The  actual  canal  debt,  as  reported  by  the 
Comptroller,  has  since  been  reduced  by  the  pay- 
ment of  $2,362;535  60  of  Chenango  stocks  falling 
due  the  1st  January,  1846,  and  $571,304  of  Oswe. 
go  and  Cayuga  and  Seneca  stocks  falling  due  Is 
July  last,  and  increased  $300,000  by  the  issue  of 
stocks  under  the  law  of  last  winter,  making  the 
actual  canal  debt  on  the  1st  July,  1846,  $16,944,- 
815.57,  as  accuiately  stated  in  the  Comptroller's 
rep.  Con,  Doc.  No.  47,  p.  35,  statement  B,and  re- 
port of  the  commissioners  of  the  canal  fund,  1846, 
pages  16  and  17.  Although  the  canal  debt  was  on 
the  1st  July,  1846,  as  stated,  yet  the  funds  on  that 
day  in  the  hands  of  the  commissioners  of  the  ca- 
nal fund  had  also  been  kept  out  of  view,  which  re- 
duced the  actual  debts  of  the  State  as  before  stated, 
to  $21,912,854,  embracing  canal  debts  and  all 
other  debts  of  the  State  to  be  paid  or  provided 
for. 

Mr.  W.  said  he  would  next  proceed  to  consider 
the  other  ground  of  argument  of  the  gentleman 
from  Herkimer  (Mr.  H.)  viz:  the  impolicy  of 
commencing  the  present  unfinished  works.  If 
there  was  any  such  impolicy,  Mr.  W.  said,  he  de 
sired  those  chargeable  with  it,  should  alone  be 
censurable;  and  he  would  now  undertake  to  show 
that  the  gentleman  from  Herkimer  had  as  much  to 
do  with  the  origin  of  that  measure  as  anyone  else. 
That  he,  not  only  as  to  yie  necessity  and  policy  of 
commencing  and  prosecuting  the  enlargement,  had 
at  one  time  occupied  an  entirely  different  ground 
from  that  assumed  by  him  at  this  time;  but  that 
in  his  own  reports  while  canal  commissioner,"lhe 
very  plan  he  now  advocates  for  "the  improvement" 
of  the  Erie  canal  was  unequivocally  condemned 
under  his  own  signature. 

In  1834,  an  act  was  passed  to  improve  the  ca- 
nals of  this  State,  which  authorized  the  canal 
commissioners  to  construct  double  locks  of  such 
dimensions  as  they  should  deem  proper  from  Al- 
bany to  Syracuse,  and  make  all  proper  works  to 
adapt  the  canal  to  the  use  of  the  double  locks. — 
The  Canal  Commissioners,  of  whom  the  honorable 
gentleman  from  Herkimer,  Mr.  HOFFMAN,  was 
one,  after  the  passage  of  this  act,  directed  the  en- 
gineers of  the  State  to  make  the  necessary  surveys 
and  estimates  for  complying  with  its  piovisions. 
No  work,  however,  was  done  under  it.  At  the 
session  of  the  legislature  of  1835,  the  Canal  Com- 
missioners, thea  being  Messrs.  S.  VANRENSSE- 
LAER,  MICHAEL  HOFFMAN,  SAMUEL  YOUNG, 
WM.  C.  BOUCK  and  JONAS  EARLE,  JR.,  made  a 
special  report,  relative  to  the  improvement  of  the 
Erie  canal,"  (see  Assembly  Doc.  of  1835,  No.  143,) 


in  which  they  gave  a  detailed  account  of  what  had 
been  done  under  the  act,  and  in  which  the  assign- 
ed reasons  why  some  other  mode  of  improving  the 
canal  should  be  adopted.  Throughout  the  whole 
report  the  gentleman  from  Herkimer  and  his  col- 
leagues assumed  that  doubling  the  locks  without 
widening  and  deepening  the  canal  would  not  give 
to  it  adequate  capacity  to  accommodate  the  in- 
creased trade  upon  it.  That  for  this  puipose  and 
to  secure  such  trade,  the  future  improvements  of 
the  canal  "must  be  designed  to  make  the  tianspor- 
tat  ion  as  cheap  and  secuie  as  possible;"  "but  if  to 
secure  these  reduced  expenditures  and  tolls,  im- 
provements and  enlargement  of  the  capacity  of  the 
canal  be  neglected  or  long  delayed,  the  business 
of  the  oountiy  so  enlarged  and  rapidly  increasing? 
would  exceed  the  capacity  of  the  canal,  and,  seek- 
ing new  and  rival  channels,  would  with  the  lolls* 
thereon,  be  lost  to  this  State."  The  report  then 
goes  on  to  speak  of  the  increased  business  on  the 
canal,  and  states  it  to  have  been  about  12  per  cer>t 
in  each  year  since  1826,  and  of  a  much  higher  rate- 
on  the  business  of  1831  and  1832. 

During  the  same  session  of  the  legislature,  the 
proceedings  of  a  public  meeting,  held  in  Utica,  to 
take  measures  to  affect  the  construction  ot  a  ship 
canal  between  Lake  Ontario  and  the  Hudson  river, 
and  also  a  resolution  of  the  Common  Council  of 
the  city  ot  New  York,  in  favor  of  tht  construction 
of  said  canal,  were  referred  to  the  Canal  Board, 
which  Board  on  the  30th  March,  1835,  made  a  re- 
port thereon  to  the  legislature, '(Assembly  Docu- 
ments, 1S35,  No.  334.)  This  report  is  signed  by 
Wm.  C.  Bouok,  S.  Van  Rensselaer,  A.  C.  Flagg, 
John  A.Dix,  Greene  C.  Bronson,  William  Camp- 
bell and  Michael  Hoffman,  and  it  concurs  in  the 
opinion  expressed  in  the  proceedings  referred  to, 
that  the  facilities  for  transportation  through  the 
state  should  be  commensurate  with  the  wants  of 
the  fertile  regions  of  Ohio,  Illinois,  Indiana,  Mis- 
souri and  the  territories  north  and  west  of  these 
states,  but  the  board  did  not  deem  the  proposed 
ship  canal  the  best  channel  for  affording  such  fa- 
cilities. They  arrived  at  and  expressed  afar  safer 
and  wiser  conclusion,  viz  :  to  use  their  own  lan- 
guage, "That  an  enlargement  of  the  Erie  eanal 
would  be  in  all  respects  the  best  plan  to  accom- 
modate the  transportation  between  the  Hudson 
river  and  the  western  lakes." 

The  Canal  Board  also  advert  to  the  act  of  1834, 
authorizing  the  doubling  of  the  locks,  which  they 
admit  will  increase  the  capacity  of  the  canal  for 
a  short  period,  without  essentially  lessening  the 
expense  of  transportation.  They  then  say,  "It  is 
lowever,  quite  certain  that  the  time  is  not  very 
listanl  when  additional  facilities  will  be  necessa- 
•y,  and  the  Canal  Board  take  this  occasion  to  ex- 
press the  opinion  that  the  enlargement  of  the 
2rie  canal  should  be  directed  at  the  present  ses- 
uon  of  the  legislature."  Speaking  of  the  mode  of 
>rosecuting  this  enlargement,  the  Canal  Board 
ilso  say,  "As  the  work  must  be  eifected  without 
nterruption  to  the  navigation,  its  progress  must 
)e  necessarily  slow  and  cannot  reach  Lake  Erie 
)o  soon  to  accommodate  the  western  trade  which 
will  naturally  seek  this  channel." 

Such  were  the  clear  and  emphatic  opinions  ex- 
ressed  by  the  gentleman  from  Herkimer  in  1835, 
n  favor  of  the  immediate  enlargement  of  the  Erie 
^anal.  That  gentleman's  opinions  as  expressed 


1115 


at  this  time  on  this  floor,  are  of  a  very  differen 
character.  He  now  seeks  to  discredit  the  under 
taking  by  charging  its  origin  upon  a  Rocheste 
meeting.  Whether  the  huelligent  citizens  of  tha 
place  are  entitled  to  the  honor,  Mr.  W.  said  hi 
had  no  other  evideace  than  the  gentleman's  dec- 
larations. Whatever  might  have  been  the  early 
action  of  the  citizens  of  Rochester,  the  gentleman 
from  Herkimer  was  among  the  first  public  officers 
of  the  state,  and  Mr.  W.  said,  he  believed  the  firs 
public  officer  that,  in  direct  and  explicit  terms 
advised  the  legislature  to  authorize  the  enlarge- 
ment of  the  Erie  canal.  Mr.  W.  said  the  gen 
lleman  perhaps  might  reconcile  his  opinions 
on  this  subject  in  1S35,  with  those  he  now  ex- 
pressed. 

The  gentleman  from    Herkimer,  the  other  day 
bitterly  complained  of  the  gentleman  from  Wayne 
(Mr.  ARCHER,)  that  he  had  not  done  him  (Mr  H.) 
justice  by  neglecting  to  read    that   portion  of  the 
report  of  the  canal  board  in  1835,  which  suggest- 
ed the  manner  of   obtaining  means  to    prosecute 
the  enlargement.     Mr.  W.  said  he  intended  to  do 
the  gentleman  from  Herkimer  no  such  injustice 
Among  the  objects  the   gentleman   now   seeks  to 
secure  by  a  constitutional   provision,  is  the  repay- 
ment by  the  canals  to  the  general  fund  of  what  he 
claims  the  canals  owe  to  that  fund  ;  and  he  insists 
ihat  no  considerations  connected  with  the  enlarge- 
ment of  the  Erie   canal   should    prevent   for    any 
time  such   repayment.      It   is   now  a  question  or' 
strict  obligation  to  make  this  repayment,  involving 
*uch  high  moral  and  political  considerations,  that 
he  has  framed  and  reported  a  provision  to  be  in- 
corporated in  the  instrument  we  are  about  passing 
so  that  this  duty  shall  not  be  dependent  upon  any 
legislative  sense  ol  morality.     The  salt  arid  auc- 
tion duties  constituting  this  now   pretended   debt 
against  the  canals  were  mainly  appropriated  prior 
to  1835,  when  the  report  last  mentioned  was  writ- 
ten.    Such  application   ceased   after    1836.     The 
whole  ground  of  claim  on    account  of  these   auc- 
tion and  salt  duties  existed  against  the   canals    in 
1835,  with  the  same  lorce  and  on  the  same  prin- 
ciple of  justice  as  at  this  time,  and  it'  it  would  tit- 
unjust  now  to  appropriate  the  entire  revenues  of 
the  Erie  canal  to  its   enlargement  it  was  equally 
unjust  to  do  so  in  1835.     At  that  time  I  he  gentle- 
man from  Herkimer  was  silent  upon  this  claim  of 
the  general  fund.     No  mention  whatever  was  then 
made  by  him  of  this  debt  owing  by  the  state  to  The 
state,  or  about  th«  plundering  of  the  genual  fund 
by  the  canals.     If  the  position    now    assumed   by 
him  was  sound,  there  was  then  a  debt  due  to  the 
general  tund  from  the 'canals  of  about  $'9,000,000, 
which  the  canal  tolls  should  have  been  appropriat- 
ed to  pay.     If  this  debt  u  owing  now,  ii  was  then 
due.     Where  then  was  the  zeal  of  the  gentleman 


when  in  1835,    he 
to  which  he  (Mr. 


penned    the    recommendation 
W.)    alluded  ?     Why   was    he 


then  silent  on  a  subject  on  which  he  is  now  so 
zealous  ? 

Mr.  HOFFMAN.  I  was  then  a  Canal  Commis- 
sioner, and  had  nothing  to  do  with  that  question. 
Had  I  been  a  member  of  the  legislature,  I  should 
probably  done  as  I  now  propose. 

Mr.  WORDEN.  Probably  you  would,  but  being 
Canal  Commissioner,  you  did  entirely  different.— 
Mr.  W.  said  he  conceded  the  gentleman  did  not 
thea  recommend  that  the  enlargement  should  be 


prosecuted  by  moneys  raised  on  loans  ;  but  that 
there  could  be  no  mistake  as  to  what  he  did  re- 
commend, he  would  read  the  language  of  the  gen- 
tleman  from  his  own  report. 

Mr.  WORDEN  then  read  from  the  report  of  the 
Canal  Board  in  1835,  as  follows : — 

"  In  urging  upon  the  consideration  of  the  legis- 
lature the  importance  of  authoiizing,  at  the  pres- 
ent session  such  an  enlargement  of  the  Erie  canal 
as  is  conceived  to  be  necessary  to  adapt  it  to  the 
increasing  trade  ot  the  country,  the  Canal  Board 
desire  to  have  it  distinctly  understood  that  they 
do  not  recommend  such  an  expenditure  of  money 
upon  this  work  as  will  interfere  with  the  arrange- 
ments now  in  progress  for  accumulating  a  sum 
sufficient  to  pay  the  Erie  and  Champlain  canal 
debt,  and  for  restoring  the  auction  and  salt  duties 
to  the  general  fund.  The  nett  proceeds  of  the 
canal  fund  for  1835,  '36  and  '37,  will  probably  be 
sufficient  to  pay  the  balance  of  the  canal  debt, 
and  meet  the  disbursements  on  the  contracts  for 
doubling  the  locks.  At  ihe  close  of  1837,  the 
auction  and  salt  duties  will  be  restored  to  the  gen- 
eral fund  if  the  proposed  amendment  to  the  Con- 
stitution should  meet  the  sanction  of  the  people. 
After  the  period  alluded  to,  the  nett  proceeds  of 
the  canal  tolls  will  be  sufficient  to  meet  the  dis- 
bursements necessaiy  for  improving  aad  enlarging 
the  canal  without  having  recourse  to  new  loans 
for  that  purpose." 

If,  said  Mr.  W.  there  is  any  force  in  language, 
the  above  extract  conveys  a  clear,  unequivocal  re- 
commendation to  apply  the  nett  proceeds  of  the 
canal  tolls,  after  providing  for  the  payment  of  the 
old  Erie  arid  Champlain  canal  debt,  to  the  en- 
argement  of  the  Erie  canal  ;  and  no  one  enter- 
aining  the  opinion  now  expressed  by  the  gentle- 
nan  from  Herkimer,  that  these  canal  tolls  should 
>e  applied  to  the  payment  of  a  just  debt  to  the 
tate  treasury  in  preference  to  the  enlargement, 
could  consistently  have  used  the  language  tu 
?vhich  the  gentleman  from  Herkimer  appended 
signature  in  1835.  Not  a  word  was  then  said 
tbout  arrearages  to  the  general  fund  or  in  support 
'f  the  claim  now  brought  forward.  Mr.  W.  could 
nly  account  for  this  on  the  ground  that  no  such 
laim  was  then  considered  as  founded  in  justice 
and  equity. 

The  gentleman  from  Herkimer  (said  Mr."  W.) 
now  takes  credit  to  himself  because  he  was  in 
Ib35,  opposed  to  prosecuting  tho  enlargement  by 
means  of  loans.  His  language  as  just  stated  ex- 
presses no  such  opposition.  He  merely  said  that 
the  appropriation  of  the  entire  nett  revenues  of 
the  canals  would  be  sufficient  to  prosecute  the 
enlargement  without  recourse  to  loans,  but  the 
gentleman  wa»  for  prosecuting  the  enlargement 
at  all  events  ;  and  if  the  tolls  were  diverted  to 
any  other  purpose,  or  if  at  that  time,  as  a  mem- 
ber of  the  legislature  lie  would  have  done  as  he 
now  proposes  :  divert  over  $500,000  of  the  toils 
of  the  canals  to  support  the  government,  where 
would  the  gentleman  have  obtained  the  means  to 
carry  on  the  enlargements  ?  But  Mr.  W.  said  he 
never  believed  the  idea  was  seriously  entertained 
in  any  quarter,  that  the  enlargement  could  be 
prosecuted  with  the  surplus  tolls  alone.  The  act 
uf  1835,  authorizing  the  enlargement,  directed 
generally  that  the  cost  should  be  paid  "out  of  any 
moneys  which  may  be  on  hand  belonging  to  the 


1116 


Erie  and  Champlain  canal  fund."  And  that  after 
1837,  the  expenditures  should  be  so  limited  as  to 
leave  from  the  canal  revenues  without  reference 
to  auction  and  salt  duties,  an  annual  income  to  the 
state  of  $300,001).  Gov.  Marcy  in  his  message  to 
the  legislature  of  183t>,  said  in  reference  to  the 
prosecution  of  the  works  then  authorized,  "No 
new  work  can  be  executed  without  using  the 
public  credit."  In  1837  the  Senate  addressed  a 
series  of  enquiries  to  the  canal  board,  to  ascertain 
whether  in  their  opinion,  it  was  for  the  interests 
of  the  state  to  proceed  more  rapidly  with  the  en- 
largement of  the  Erie  canal,  than  was  contem- 
plated by  the  act  of  1835  ;  and  whether  the  cost 
of  the  work  would  exceed  their  former  estimate, 
(that  being  about  twelve  and  a  half -millions  of 
dollars.)  JVfr.  W.  read  the  answer  to  this  enquiry 
which  was  signed  by  the  present  Comptroller, 
Jonas  Earl,  jr.,  John  A.  Dix,  and  Samuel  Beards- 
ley.  The  answer  was  distinct  and  decisive,  that 
it  was  expedient  to  proceed  faster  with  the  en- 
largement than  had  been  provided  for  in  1835.— 
How  otherwise  proceed  faster,  said  Mr.  W.,  than 
by  loans  ?  The  whole  point  of  the  enquiry  was 
to  ascertain  whether  it  was  proper  and  necessary 
to  complete  the  enlargement  by  loans,  and  the 
answer  was  most  emphatic  in  its  meaning  that  it 
was. 

Nothing  further  was  done  on  the  subject  of  the 
enlargement  until  1838.  At  the  opening  of  the 
session  of  the  legislature  in  that  year,  Gov.  Mar- 
cy brought  to  its  attention  the  importance  of  pro- 
gressing more  speedily  in  the  enlargement  of  the 
canal.  He  said,  "The  best  interests  of  the  state 
appeal  to  you  with  great  earnestness  to  provide 
for  the  early  completion  of  this  important  im- 
provement. I  am  persuaded  that  a  larger  sum 
jhan  the  present  appropriation  (the  surplus  .tolls) 
might  be  advantageously  expended  without  caus- 
ing interruption  and  delays  to  the  transportation 
on  the  canals."  Again  he  says,  in  the  same  mes- 
sage, "both  duty  and  interest  indicate  not  only 
the  propriety  of  making  it  (the  enlarged  canal) 
adequate  to  the  public  wants,  but  of  making  it  so 
at  the  earliest  practicable  period." 

Mr.  W.  said  this  was  the  language  of  a  wi.sc 
statesman,  whose  recommendations  had  always 
been  received  with  favor  by  the  people  of  this  state. 
He  then  referred  to  Gov.  Marcy's  special  message 
in  that  year  when  the  finances  were  deranged. — 
He  then  recommended  the  issue  of  $7,500, 
state  stocks  to  be  loaned  to  the  banks,  the  proceeds 
to  be  used  in  the  prosecution  of  the  public  works, 
as  fast  as  could  wisely  be  done.  Mr.  W.  com- 
mented upon  this  recommendation,  referring  to 
what  he  doubted  not  would  be  the  verdict  of  pos- 
terity upon  its  patriotism.  Pursuant  to  the  re- 
commendations of  Gov.  Marcy  an  act  was  passed 
in  1838,  authorizing  the  first  loan  for  the  enlarge- 
ment of  the  Erie  canal. 

Mr.  VV.  said  the  gentleman  from  Herkimer  had 
Undertaken  to  prove  that  the  Erie  canal  did  run 
need  to  be  enlarged,  at  all  events,  nut  to  the  ex- 
tent it  had  been  declared  necessary  by  tbe  canal 
board,  under  the  law  of  1S35.  On  the  3d  July, 
1835,  the  canal  board  decided  that  the  public  in- 
terests required  the  enlargement,  and  persuant.  to 
the  law  tiipy  fixed  the  dimensions  of  the  enlarged 
canal  at  70  feet  by  7.  The  gentleman  from  Her- 
kimer condemns  this  decision  as  unwise  and  un- 


called tor.  Indeed  every  recommendation  ot  the 
Executive  of  the  Slate — of  all  its  officers  charged 
wittr  the  duty  of  looking  after  the  canal  inteit  s's 
of  the  State — 'he  acts  of  the  legislature  on  that 
subject  from  1835  to  1S3S,  now  fall  under  the  de- 
nu'K'i'itioo,  and  condemnation  of  that  gentleman. 
Mr.  W.  said  he  had  purposely  come  down  to  no 
Liter  period  in  the  history  of  the  Erie  canal  en- 
la  gement  than  1838.  He  had  referred  to  the  ar- 
guments and  opinions  of  distinguished  men  during 
the  period  Iroin  1835  to  1838,  and  had  used  their 
names  as  connected  vviih  these  arguments  and 
opiiiions;|h.e  hoped  he  should  not  be  understood  as 
having  dune  so  for  any  improper  purpose.  The 
names  and  opinions  of  those  gentlemen  were  iden- 
tified vviih  the  history  of  the  State,  and  he  had  ie- 
ferred  to  no  act  or  opinion  which  he  condemned, 
or  fel-  disposed  to  condemn  ;  on  the  contrary,  the 
views  they  so  often  expressed  in  favor  ot  the  pro- 
secution and  early  completion  of  that  great  work, 
the  enlargement  of  the  canal,  were  those  of  wi^e 
arid  enlightened  statesmanship,  and  would  render 
their  namesconspicuousin  the  history  of  the  State. 
Mr.  VV.  said  he  had  also  used  the  name,  and  ad- 
verted to  the  opinions  of  a  distinguished  individual, 
a  member  of  this  Convention,  the  gentleman  from 
Schoharie,  (Gov.  BOUCK.)  Although  it  had  been 
his  fortune  to  differ  with  that  gentleman  political- 
ly, vet  he  felt  it  his  duty  to  say,  in  reference  to 
this  great  question  of  internal  improvement  that 
he  had  always  considered  that  gentleman  as  a  firm 
supporter  of  that  policy.  He  trusted  he  should 
rind  him  so  throughout  this  Convention.  High  as 
that  gentleman  had  been  elevated  in  office,  and 
sure  as  he  was  to  fill  a  conspicuous  place  in  the 
history  of  the  State,  his  devotion  to  the  cause  of 
internal  improvement,  would  add  lustre  to  his  re- 
putation, and  cause  his  memory  to  be  regarded 
with  veneration  by  posterity. 

Mr.  WORDEN  said  he  had,  he  believed,  very 
fully  stated  all  the  arguments  from  1835  to  183S, 
in  favor  of  the  enlargement  of  the  Erie  canal;  and 
he  was  glad  to  know  that  some  of  the  most  power- 
ful and  conclusive  ones  in  favor  of  the  measure 
wore  advanced  by  the  gentleman  from  Heikimer. 

The  argument  in  favor  of  the  enlargement,  from 
1838,  was  based  upon  conjecture  as  to 
the  amount  and  increase  of  the  western  trade. — 
Every  anticipation  at  that  time  entertained  has 
been  more  than  realised.  Every  argument  which 
could  justify  the  canal  board  in  1835,  in  advising 
the  legislature  to  commence  the  enlargement,  has 
increased  force  in  favor  of  the  measure  at  this  mo- 
ment. The  arguments  of  1835  werebase.l  on  the 
anticipated  increase  of  trade  ;  at  present  they  rest 
upon  the  actual  increase  since  that  period,  and 
the  probable  future  increase. 

The  following  facts,  taken  from  tables  of  the 
trade  and  tonnage  of  the  canals,  as  reported  to  the 
legislature  at  its  last  session,  are  of  the  utmost 
importance  to  exhibit  the  past  and  probable  fu- 
ture trade  of  the  canals. 

In  1834,  the  property  of  all  descriptions  coming 
on  the  canals  to  tide-waters  was  553,596  tons. — 
Value  $13,405,022.  In  1845  the  tons  of  property 
arriving  at  tide-waters  on  the  canals,  were  1,204,- 
«)  L'J.  Value  $45,452.321,  being  an  increase  of 
tonnage  of  over  two  hundred  per  cent.,  and  in 
value  over  three  hundred  per  cent. 

In  1834  the  whole  quantity  of  wheat  and  flour 


1117 


arriving  at  the  Hudson  river  from  the  canals,  was 
130,452  tons,  value  $5,719,795.  In  1845  the 
quantity  of  wheat  and  flour  arriving  at  the  Hud- 
son was  :!-j(>,  103  tons,  value  $15,962,950, 

In  1»35  the  wheat  and  flour  from  other  States, 
shipped  at  Buffalo,  Black- Rock  and  Oswego.  was 
;iu,^>23  tons.  In  1S45  it  was  J>o,;2lO  tons,  being 
an  increase  of  about  six  hundred  per  cent,  in  ten 
years. 

In  1830  the  tons  of  property  from  the  Western 
States  arriving  at  tide-waters,  by  way  of  the  Erie 
canal,  were  54,219  tons. 

In  1845  the  tons  of  property  from  the  Western 
States  arriving  at  tide-waters  by  the  way  of  the 
Erie  canal,  were  304,551  tons,  being  an  increase 
of  about  six  hundred  per  cent,  in  the  Western 
trade  in  the  preceding  ten  years,  while  the  amount 
of  tonnage  from  our  own  State  arriving  at  tide- 
waters, has  only  about  doubled  in  the  same  pe- 
riod, and  that  going  from  tide  waters  within  the 
same  period,  has  increased  about  fifty  per  cent. 
Should  the  trade  on  the  Erie  canal  increase  for 
the  next  ten  years  in  the  same  ratio  as  during  the 
past  ten  years,  it  would  exceed  that  of  the  year 
1845,  three  hundred  per  cent.  The  gentleman 
from  Herkimer  only  anticipates  that  his  present 
plan  of  "improvement"  of  the  Erie  canal  will 
treble  its  capacity. 

A  few  other  facts  Mr.  WORDEN  said  he  desir- 
ed to  state.  They  addressed  themselves  to  the 
representatives  from  the  city  of  New  York,  and 
he  trusted  they  would  have  their  proper  influence. 
That  city  enjoyed  a  large  proportion  of  the  for- 
eign export  and  trade  of  the  United  States.  Mr. 
W.  said  the  value  of  property  in  1845  arriving  at 
tide- water  from  the  canals,  was  #45,452,321, 
about  equal  to  one-half,  of  the  value  of  the  entire 
exports  of  the  whole  of  the  United  States-.  Du- 
ring the  year  1845  the  value  of  all  the  property 
ascending  and  descending  on  the  canals,  was 
$1110,953,245,  exceeding  the  value  of  all  exports 
from  the  United  States  for  the  same  year. 

Is  this  immense  trade  to  increase  ?  (asked  Mr. 
W.)  He  believed  it  would,  experience  justified 
that  belief,  to  think  otherwise,  would  be  to  dis- 
trust the  munificence  of  Providence.  Mr.  W. 
said  he  regretted  to  be  obliged  to  resort  to  statis- 
tics to  sustain  and  illustrate  his  position,  but  they 
often  contained  in  themselves  potent  and  convin- 
cing arguments.  If  any  gentleman  would  take 
the  trouble  to  look  over  the  map  of  the  Western 
States,  and  ascertain  the  character  of  their  popu- 
lation, their  climate,  soil  and  productions,  or  ob- 
tain even  a  tolerable  knowledge  on  those  subjects 
/  and  then  would  say  he  doubted  the  future  increase 
of  the  trade  and  business  of  the  Western  States, 
he  should  consider  that  man  as  one  deprived  oJ 
ordinary  intelligence  and  reason.  And  yet  gen- 
tlemen possessed  of  these  high  qualities,  in  an 
eminent  degree,  from  inattention  to  facts  easily 
ascertained,  are  continually  expressing  doubts  as 
to  the  progress  and  advance  of  the  Western  trade 
arid  the  business  of  the  canals.  Mr.  W.  said  he 
could  in  tracing  through  the  public  documents  of 
this  State,  find  estimates  ol  the  probable  increase 
ot  tolls  and  trade,  made  by  very  respectable  anc 
intelligent  gentlemen,  that  their  authors  would 
now  blush  to  look  upon,  they  fell  so  far  short  of 
actual  results.  They  appear  to  be  the  production 
of  men  of  the  past  age,  and  of  by-gone  times,  be- 


'ore  education  elevated,  and  enterprise  stimulated 
:o  exertions,  the  free  and  imtrameled  intellects 
of  the  noble  race  of  men  that  now  people  the 
ri-cat  West.  But  said  Mr.  W.,  I  will  return  to 
ny  statistics. 

In  1800,  the  territory  now  com  prising  the  States 

of  Ohio,  Illinois,  Indiana,  Michigan    and  the  ter- 

itory  of  Wisconsin,   contained  a   population   of 

about  50,000.     In  1840  the  population  of  the  same 

territory  was  as  follows  : 

Ohio,  1,519,408 

Indiana,  6S5,sf,«; 

Illinois,  407,183 

Michigan,  212,207 

Wisconsin  Territory,  30,945 

The  population  of  these  States  and  Territory, 
;annot  at  this  time  be  less  than  three  million  and 
a  half  of  people,  and  the  country  bordering  on  the 
great  Western  Lakes  is  capable  of  sustaining  a 
vast  increase  of  population,  which  in  no  very  re- 
mote period  will  amount  to  ten  millions.  They 
are  rapidly  increasing  in  wealth  and  production, 
and  their  trade  will  increase  in  a  ratio  beyond 
that  of  the  population.  They  are  also  construct- 
ing extensive  works  of  internal  improvement, 
having  reference  to  an  outlet  to  tide  waters 
through  our  canals. 

The  extent  of  the  Wes'ern  trade,  said  Mr.  W., 
may  be  more  accurately  estimated  by  the  im- 
mense extent  of  inland  communication,  natural 
arid  artificial,  connected  with  and  leading  through 
the  Erie  canal  from  the  city  of  New  York. 

The  city  of  Chicago  is  distant  from 
New  York,  1,478  miles. 

The  following  canals  leading  into 
Lake  Erie  are  completed: 
The  Erie  extension  from  Beaver  to 

Erie,  136     " 

Cross   Cut   Canal    from   Beaver    to 

Cleaveland  Canal,  143     " 

Ohio    Canal    from     Portsmouth    to 

Cleaveland,  309     " 

Miami  Extension  from  Cincinnati  to 

Toledo,  247     « 

Total,  2,313     " 

The  W  abash  and  Erie  canal  is  now  in  the  pro- 
gress of  completion,  and  is  designed  to  connect 
the  waters  of  the  Ohio  by  way  of  Maumee  Bay 
with  Laka  Erie.  Its  entire  length  is  about  450 
miles,  traversing  the  richest  agricultural  portion 
of  the  globe.  Four  millions  of  dollars  are  already 
expended  on  this  canal,  and  about  one  million 
and  a  quarter  ol  dollars  is  required  to  complete 
the  entire  work,  for  which  Congress  has  appro- 
priated 800,000  acres  of  public  lands. 

The  Illinois  canal  when  completed,  will  open 
a  channel  of  communication  between  Lake  Michi- 
gan and  the  Mississippi,  through  the  Illinois  ri- 
ver, of  more  than  300  miles  in  extent.  The  final 
construction  of  this  work  within  no  remote  pe- 
riod, may  be  regarded  as  certain.  The  rich  min- 
eral district  bordering  on  '  Lake  Superior,  must 
furnish  an  immense  tonnage  to  our  canals,  and  en- 
sure the  construction  of  a  Ship  canal  around  the 
rapids,  in  the  strait  separating  it  from  Lake  Hu- 
ron. 

Will  the  world  believe  it  possible,  said  Mr.  W 
that  the  State  of  New  York  can  be  so  lost  to  her 
interests,  as  to  incorporate  into  her  Cons. itui ion 


1118 


provisions  that  shall  prevent  her  legislature  from 
employing  the  abundant  resources  at  her  com- 
mand, in  the  way  best  calculated  to  secure  this 
immense  trade  ?  Wars  have  been  prosecuted  fo 
commercial  objects  of  far  less  importance.  Th< 
whole  foreign  trade  of  the  city  of  New  York,  is 
almost  insignificant  when  compared  with  the  mag- 
nitude of  the  trade  of  the  Western  States,  being 
an  interior  coast  trade  of  more  than  3000  miles  al 
ready,  and  rapidly  extending — the  trade  also  o 
three  millions  and  a  half  of  people,  that  must  soon 
increase  to  ten  millions.  Great  Britain  under- 
took an  expensive  war  to  extend  her  trade  with 
China.  She  expended  more  in  that  war  than  the 
entire  cost  of  enlarging  the  Erie  canal,  and  yet, 
said  Mr.  W.,  it  may  be  doubted  whether  the  trade 
of  China  is  worth  to  the  British  Empire  what  the 
trade  of  the  Western  States  is  to  the  State  of  New 
York  or  even  the  city  of  New  York,  and  yet  no 
representative  of  that  city  has  as  yet  on  this  floor, 
done  aught  to  secure  that  trade,  or  to  advocate  the 
policy  of  doing  so.  Mr.  W.  said  he  saw  among 
that  representation,  gentlemen  of  high  character 
and  intelligence,  and  sincerely  trusted  they  would 
aid  with  all  the  force  of  their  exertions,  to  secure 
to  the  city  they  represent,  by  suitable  provisions 
in  the  Constitution,  the  completion  of  the  en- 
largement of  the  Erie  canal,  and  thereby  secure 
those  great  commercial  advantages,  of  which, 
without  such  aid,  she  might  be  entirely  deprived. 
'  8PMr.  W.  said  he  had  said  all  that  he  intended  in 
vindication  of  the  policy  of  enlarging  the  Erie  ca- 
nal, and  of  the  necessity  for  such  enlargement. — 
He  now  proposed  to  examine  the  policy  of  the 
proposed  improvement  of  the  canal  as  stated  and 
advocated  by  the  gentleman  from  Herkimer, 
(Mr.  H.)  Mr.  W.  said  he  understood  that  gentle- 
man to  say  he  was  in  favor  of  completing  the  enlar- 
ged locks  from  Albany  to  Syracuse.  In  that  Mr.  W. 
said  he  concurred.  He  believed  most  of  these  locks 
were  under  contract  when  the  work  was  arrested 
in  1842 .  The  cost  of  completing  them  as  estima- 
ted by  the  Canal  Commissioners  was  $395,000, 
and  under  any  circumstances  their  completion 
was  necessary.  The  gentleman  from  Herkimer 
had  stated  very  distinctly,  that  from  Syracuse  to 
Buffalo  he  would  not  construct  new  locks  on  the 
plan  of  the  enlargement,  but  merely  lengthen  the 
chamber  of  the  old  locks,  so  that  a  longer  boat 
could  pass  through  them.  The  gentleman  propo- 
ses to  deepen  the  bed  of  the  canal  and  raise  the 
banks  so  as  to  give  a  depth  of  five  feet  water  in 
the  channel,  without  increasing  the  width  of  the 
water  or  widening  the  water  way  of  the  canal  for 
the  passage  of  boats.  This  is  the  extent  of  the 
improvement  of  the  Erie  canal  as  now  proposed 
by  the  gentleman  from  Herkimer. 

Mr.  W.  said  he  was  obliged  again  to  avail  him- 
self of  the  arguments  of  the  gentleman  from  Her- 
kimer in  1835,  in  condemnation  of  his  present 
plan  of  improvement  of  the  Erie  canal,  as  he  had 
done  before  in  support  of  the  policy  of  enlarging 
the  canals.  The  gentleman  from  Herkimer  now 
says  all  that  is  required  is  to  add  one  foot  to  the 
depth  of  water  in  the  canal  and  lengthen  the 
locks.  How  is  he  to  add  this  one  foot  ?  Is  it  by 
excavating  the  bed  of  the  canal  ?  If  so,  then  said 
Mr.  W.  I  refer  to  his  argument  in  1835,  signed, 
if  not  written  by  him.  (See  Assembly  Doc.  1S35, 


No.  148.)  The  gentleman  there  says,  "Depress- 
ing the  bottom  line  of  the  canal  will  in  general  be 
expensive.  It  will  displace  any  lining  which  may 
have  been  placed  in  it.  It  will  by  the  slopes  of 
the  banks  contract  the  width  of  the  canal  and 
make  large  excavations  necessary  to  afford  the  re- 
quisite width,  and  especially  at  the  foot  of  high 
banks  and  hills  used  to  slide.  It  will  make  ex- 
pensive excavations  necessary  in  the  beds  of 
streams  through  which  the  canal  passes,  or  over 
which  it  is  crossed,  in  many  cases  on  aqueducts 
and  culverts.  It  will  require  that  these  be  rebuilt 
at  the  depressed  levels,  and  the  heads  and  foun- 
dations of  the  locks  must  be  accommodated  to  the 
new  bottom  line,  which  will  require  that  the 
guard  locks  on  the  line  and  the  locks  which  lift 
from  it  be  rebuilt."  Nothing  more  need  be  said 
against  the  present  proposition  to  deepen  the  bed 
of  the  old  canal  with  the  present  locks  remaining 
as  they  are.  Any  one  at  all  acquainted  with  me- 
chanical structures,  knows  the  thing  to  be  of  no 
practical  utility. 

If  the  depth  of  water  in  the  old  canal  is  to  be 
increased  to  the  depth  of  five  feet  without  widen- 
ing the  canal,  then  again  the  gentleman  from  Her- 
kimer in  1835,  shows  in  the  report  last  referred 
to,  that  it  is  impolitic,  if  not  impracticable,  to  do 
so  without  widening  the  canal.  On  this  point, 
Mr.  W.  said  he  would  again  quote  from  the  re- 
port of  the  gentleman  in  1835,  page  14,  where  he 
says,  "  In  order  to  procure  the  materials  necessa- 
ry to  raise  and  strengthen  the  banks  of  the  canals, 
so  as  to  render  them  sufficient  to  sustain  six  or 
even  five  feet  of  water,  it  will  in  the  earth  exca- 
vations be  necessary  to  excavate  the  canal  in  gen- 
eral 20,  and  in  some  parts  30  feet  wider  than  it 
now  is,  which  will  afford  a  water  line  of  60  to  70 
feet."  The  gentleman  frem  Herkimer  has  advert- 
ed to  the  yearly  expenditures  on  the  canals  for 
repairs  and  their  increase,  and  says  they  must  con- 
tinue to  increase.  The  cost  of  repairs  done  for 
ihe  last  year  on  the  Erie  and  Champlain  canals, 
is  said  to  be  over  $500,000.  This  great  expendi- 
;ure  arises  from  the  fact  that  the  water  in  the  ca- 
nal is  now  greater  than  the  capacity  of  the  banks 
to  sustain.  They  were  made  for  a  four  feet  canal, 
and  are  not  too  strong  to  sustain  that  depth  of  wa- 
er.  If  the  water  is  raised  in  the  present  banks 
.o  five  feet,  you  will  have  continued  breaches, 
and  your  expenses  will  be  enormous.  The  very 
fact  that  your  expenses  for  repairs  run  up  to 
$500,000  a  year,  shows  that  you  overtax  the  ca- 
nal. You  pay  in  repairs  the  interest  on  $10,000,- 
000,  which,  if  applied  to  the  enlargement  and  ma- 
king the  canal  as  it  ought  to  be,  would  avoid  these 
arge  expenditures.  Your  present  insufficient  ca- 
nal requires  a  yearly  expenditure  to  keep  it  in 
repair  nearly  sufficient  to  pay  the  interest  on  the 
mtire  cost  of  the  enlargement.  The  best  con- 
itructed  canals  of  the  present  day  require  very 
ittle  expenditures  for  repairs,  and  if  the  canal  is 
properly  enlarged  and  the  structures  as  they 
should  be,  the  entire  expense  of  repairs  from  Al- 
bany to  Buffalo  would  be  less  than  one-fourth  of 
he  present  amount.  A  saving  to  this  amount 
•vould  be  equal  to  the  gross  sum  of  $8,000,000. 
The  gentleman  from  Herkimer  forgets  all  these 
considerations,  and  fails  to  consider  that  by  rais- 
ng  the  volume  of  water  in  the  present  canal,  the 
banks  must  be  greatly  strengthened,  and  the  requi- 


1119 


site  strength  cannot  be  given  them,  probably,  with- 
out an  additional  quantity  of  earth,  equal,  as  the 
gentleman  supposed  in  1835,  to  an  excavation  of 
the  canal  20  to  30  feet  wider  than  it  now  is. 

In  1835,  the  gentleman  from  Herkimer,  in  the 
report  before  alluded  to,  asked  "  What  capacity 
shall  be  given  to  the  canal  and  locks  east  of  Syra- 
cuse, and  in  what  manner  shall  the  desired  capa- 
city be  afforded  ?"  Several  modes  (he  says)  are 
suggested.  These  he  immediately  considered : — 
the  first  was  almost  precisely  the  one  now  sug- 
gested by  him  in  regard  to  the  present  width  of 
the  canal,  aided  by  "  raising  and  strengthening 
the  banks,"  so  that  the  depth  of  the  water  in  the 
canal  and  the  tonnage  of  boats  should  be  increased . 
This  plan  left  the  canal  at  its  present  width,  but 
deepened  the  water.  What  did  he  say  to  this  pro- 
ject then?  It  was  in  these  emphatic  words, — 
««  But  this  course  is  subject  to  great  and  insupera- 
ble objections."  Are  they  less  so  now  than  in 
1835  ?  In  1835,  the  gentleman  in  the  report  al- 
luded to  used  this  language,  after  considering  the 
plans,  substantially  the  same  as  he  now  proposes, 
and  after  giving  reasons  conclusive  against  them, 
he  said,  «« It  therefore  appears  indispensable  that 
the  water  of  the  canal  should  be  deepened  and 
widened."  See  same  rep.  p.  11. 

The  gentleman  from  Herkimer  now  says  by 
doubling  the'locks  and  deepening  tbe  water  to  five 
feet,  without  widening  the  canal,  it  would  treble 
its  present  capacity.  He  estimates  that  the  boats 
would  on  such  a  canal  carry  .50  per  cent  more  ton- 
nage than  at  present.  Give  the  boats  then  50  per 
cent  more  thtin  the  present  capacity,  and  you  dou- 
ble the  number  navigating  the  canal  whenever  the 
business  on  it  is  trebled.  Mr.  W.  said  he  had  en- 
deavored to  show  that  the  business  on  the  canal 
would  treble  in  ten  years,  should  it  increase  in 
the  same  ratio  as  during  the  past  ten  years.  To 
accommodate  this  increase,  with  boats  carrying 
50  per  cent  more  than  the  present  boats,  would 
require  double  the  number ;  the  Erie  canal  cannot 
accommodate  twice  the  present  number  of  boats 
now  navigating  it.  It  has  not  the  necessary  width 
to  do  so,  and  the  difficulty  is  the  same  with  the 
depth  of  water  increased  without  increasing  its 
width;  the  press  of  boats  would  be  so  great  as  to 
interrupt  and  hinder  each  other  and  retard  the 
business  on  the  canal. 

The  gentleman  from  Herkimer  probably  in  jus- 
tification of  his  present  policy  as  distinguished 
from  that  of  1S35,  has  indulged  in  various  con- 
jectures as  to  the  future  extent  of  this  western 
trade  through  the  canals.  He  had  supposed  the 
northern  railroad  from  the  bt.  Lawrence  to  Lake 
Champlain,  would  be  continued  to  Boston,  and 
considerable  trade  diverted  that  way.  That  much 
of  it  would  find  its  way  down  the  St.  Laurence 
and  the  Mississippi,  by  means  of  new  and  impro- 
ved routes  across  the  country  from  Lake  Erie  to 
Philadelphia  and  Baltimore,  and  that  eventually 
some  great  improvement  might  take  place  in  rail- 
roads, which  would  take  oil'  the  trade  almost  en- 
tirely from  the  canals.  Js  this  so  ?  What  say  the 
delegates  from  New- York  to  this  ?  Is  there  to  be 
a  northern  railroad  to  take  the  trade  to  Boston  ? 
Shall  the  southern  road  take  it  to  Pennsylvania? 
Shall  Mr.  Calhoun's  western  canal  divert  it  to  N. 
Orleans  ?  And  shall  this  State  slumber  on  its  re- 
sources, when  by  the  completion  of  the  Erie  en- 


largement, the  world  may  be  defied  to  compete 
with  us  ?  Complete  this  enlarged  canal  and  you 
will  never  hear  of  these  rival  routes  again.  As  to 
the  competition  of  railroads,  Mr.  W.  said,  he  was 
astonished  that  any  gentleman  at  this  day  would 
indulge  in  the  conjecture  that  a  railroad  could 
compete  in  the  business  of  transportation  with  a 
canal  of  the  capacity  of  the  enlarged  Erie  canal. 
Railroads  as  against  canals  would  always  carry 
some  freight.  Light  and  valuable  articles  would 
be  carried  on  railroads,  but  for  the  great  business 
of  a  country,  it  was  preposterous  to  suppose  rail- 
roads were  to  supercede  canals.  Mr.  W.  said  he 
regretted  the  gentleman  from  Herkimer  had 
brought  forward  no  theory  now  that  he  had  not  at 
a  prior  time  controverted  and  denied.  In  Assem- 
bly documents  for  1835,  No.  296,  there  will  be 
found  a  report  bearing  the  signature  of  the  gen- 
tleman from  Herkimer,  with  valuable  statistical 
documents  as  well  as  the  opinion  of  scientific  en- 
gineers attached,  on  the  average  cost  of  transpor- 
tation on  railroads  and  canals.  The  whole  sub- 
ject is  fully  and  critically  examined  by  the  engi- 
neers, Messrs.  Jervis,  Hutchinson  andMilis,  who 
state  that  from  all  the  facts  they  have  obtained, 
the  relative  cost  of  conveyance  is  (as  4,375  to  1) 
"  a  little  over  four  and  one-third  to  one  in  favor 
of  the  canals."  The  gentleman  from  Herkimer, 
in  the  document  referred  to,  says,  "  The  commis- 
sioners have  examined  this  report  and  believe  the 
general  results  to  be  correctly  stated." 

The  gentleman  has  stated  on  this  floor  to  sus- 
tain his  position,  that  the  cost  of  transporting 
flour  from  Albany  to  Boston  on  the  railroad  was 
21  cents  per  barrel.  Has  the  gentleman  ascer- 
tained whether  this  was  less  than  the  expense  of 
the  motive  power — less  than  the  actual  cost.  Mr. 
W.  said,  he  had  understood  that  the  railroad  from 
here  to  Boston  carried  the  article  of  flour  at  a  loss. 

Mr.  W.  said,  he  had  before  him  a  statement  of 
the  comparative  cost  of  transportation  on  every 
railroad  and  canal  in  Scotland  and  England,  show- 
ing conclusively  that  in  the  transportation  of 
freight,  railroadsc could  not  compete  with  canals. 
As  the  result  of  the  comparison  between  railroads 
and  canals  in  the  business  of  carrying  freight,  the 
statement  last  alluded  to,  assumed  two  cents  per 
ton  per  mile  as  the  minimum  expense  of  trans- 
portation on  a  railroad,  and  half  a  cent  per  ton  per 
mile  as  the  cost  of  transporting  on  a  canal  with 
horse  power :  at  these  rates  the  expense  of  trans- 
porting a  ton  of  flour  on  a  railroad  from  Buffalo  to 
Albany  would  be  $7  24,  and  by  canal  .<•?!  81.  Un- 
der such  circumstances  the  heavy  freight  of  the 
country  would  never  leave  the  canals  and  seek 
transportation  upon  the  railroads. 

Mr.  W.  then  adverted  to  .the  immense  trade  of 
the  west,  which  was  seeking — yes,  asking  an  ave- 
nue through  our  canals.  He  showed  that  the  ca- 
nal as  proposed  to  be  improved  by  the  gentleman 
from  Herkimer,  could  never  accommodate  this 
vastly  increased  trade  of  the  west.  That  gentle- 
man said  that  boats  now  navigated  the  canal  of 
double  the  tonnage  of  those  in  1S3G.  This  was 
so  owing  to  the  improvements  and  enlargement 
of  the  canal  since  1835,  and  the  tonnage  on  the 
canals  was  also  double  in  amount.  The  tonnage 
then  had  only  increased  in  the  same  ratio  as  the 
trade.  Where  then  was  the  proposition  to  accom- 
modate .the  future  increase  ?  The  trade  of  the  last 


1120 


twenty  years  had  increased  more  than  000  pe 
cent,  and  he  had  shown  that  there  would  be  a 
least  that  increase  for  the  next  twenty  years.  Th 
canal  proposed  by  the  gentleman  from  Herkime 
would  not  accommodate  that  trade.  To  show  tha 
the  tonnage  has  increased  as  stated,  Mr.  W.  ad 
verted  to  the  tolls  in  1820,  and  in  1S4G.  In  th 
former  year  he  said  they  were  $'087,986,  in  th 
latter  about  $2,800,000,  notwithstanding  betweei 
the  two  periods  the  tolls  had  been  reduced  nearly 
50  per  cent.  If  then  the  amount  named  by  th< 
gentleman  ($2,500,000)  should,  as  he  alleged,  tri 
pie  the  capacity  of  the  canal,  he  (Mr.  W.)  hac 
proved  that  on  that  basis  the  capacity  of  the  cana 
would  only  be  sufficient  for  the  next  ten  years 
That  section  of  the  report  was  intended  to  prohi 
bit  the  expenditure  of  any  further  sum  upon  the 
enlargement. 

Mr.  HOFFMAN  hereupon  rose,  and  deniec 
that  any  such  thing  was  intended.  This  pro- 
vision was  affirmative  that  the  legislature  should 
spend  $2,500,000..  Beyond  that,  the  legislature 
might  do  what  it  pleased  with  the  surpluses. 

Mr.  WORDEN  used  the  word  intended  in  its 
good  sense.  He  referred  not  to  the  quo  ammo*  01 
the  gentleman,  but  to  the  effect  of  the  proposi- 
tion. It  might  not  be  the  intention  of  the  gentle- 
man himself  to  prohibit  the  legislature  from  ex- 
pending any  further  sum  than  $2,500,000  on  the 
enlargement;  but  he  had  used  language,  the  in- 
tent of  which  limited  the  expenditures  for  impro- 
ving the  Erie  canal  to  $2,500,000.  Mr.  W.  read 
the  3d  section  of  the  report  of  Mr.  HOFFMAN,  re- 
lative to  the  expenditures  on  the  Erie  canal.  It 
is  as  follows : — "  The  surplus  revenues  of  the  ca- 
'  rials  ,  ;  fter  paying  the  said  expenses  of  the  ca- 
'  nals,  and  the  sums  appropriated  by  the  two  pre- 
'  ceding  sections,  shall  in  each  fiscal  year  be  ap- 
'  plied  to  the  improvement  of  the  Erie  canal,  in 
'  such  manner  as  may  be  directed  by  law,  until 
'  such  surplus  shall  amount  in  the  aggregate 
1  to  the  sum  of  ($2,500,000,)  two  million  five 
'  hundred  thousand  dollars."  It  would  not  be 
a  forced  construction  of  the  article,  arid  Mr.  W. 
said  he  doubted  if  it  was  not  the  true  construc- 
tion, to  consider  it  as  prohibiting  the  legislature 
from  appropriating  over  the  two  and  a  half  mill- 
ions of  dollars.  It  professed  to  confer  an  authority 
or  perhaps  more  properly  speaking,  it  limited  the 
exercise  of  an  admitted  authority,  to  an  appropri- 
ation of  a  certain  amount  to  a  specific  purpose 
which  always  implied  an  inhibition  against  appro- 
priating any  greater  amount.  But,  said  Mr.  W. 
the  gentleman  has  repeatedly  assured  us  that  this 
expenditure  of  two  and  a  half  million  of  dollars 
will  make  the  canal  all  that  is  requisite  for  the 
trade  upon  it,  he  has  given  us  details  and  statis- 
tics and  prophecy  to  show  that  is  so,  and  he  is 
now  indignant  at  the  suggestion,  that  he  intends 
to  prohibit  any  further  expenditure  upon  the  en- 
largement. He  has  assured  us  repeatedly,  that 
this  expenditure  of  $2,500,000,  was  to  lengthen 
the  locks  west  of  Utica,  complete  the  enlarged 
locks  to  Syracuse,  and  deepen  the  water  five  i'eet 
in  the  canal ;  but  now  he  seems  unwilling  to  give 
up  the  enlargement.  If  the  gentleman  really  con- 
templates the  completion  of  the  enlargement,  he 
has  been  peculiarly  fortunate  in  concealing  any 
such  design.  Why  has  he  been  attempting  to 
show  us  that  the  trade  would  be  diverted,  be 


drawn  off  by  railroads  and  other  routes,  that  there 
was  a  period  not  far   advanced,   when,  to  use  his 
own   expression,  "  it  would  culminate  ?"     Whv 
does  he  propose  to  go  on  for  ten  years  tinkering 
up  the  canal  at  a  cost  of  $2,500,000,  if  after  that 
period  you  are  to  undo  all  you  have  done  and  go 
to  work  upon  the  enlargement.     He  will  double 
the  locks— one  set  being  on  the  enlarged  plan  and 
the  other  on  the  present  size,  merely  lengthening 
the  chamber.    That  was  his  great  panacea.    Now 
if  he  will  go  to  the   most  scientific   engineers  of 
the  country,  they  will  tell  him  that  to  double  the 
locks  on  the  present  size  of  the  canal,  would  onlv 
double  the   mischief.     Attempt  to  feed  a  double 
set  of  locks  from  a  canal   of  the   dimensions   he 
proposes,  and  let  there  be  a  crowd  of  boats  above 
a  lock,  and  before  you  can  pass   them,  you  draw 
off' the  water  on  the  lock  above,  and  the  canal  is 
powerless.     Such  would  be  the  practical   opera- 
tion of  the  gentleman's   plan — such   the  way  in 
which   he   proposes   to  triple  the  capacity  of  the 
canal.     But,  Mr.  W.  said,  he  was  not  mistaken  in 
supposing  that  the  gentleman  proposed  the  aban- 
donment of  the  Black  River  and  Genesee  Valley 
canals,  for  he  said  yesterday  he  was  willing  to  sell 
them  out.     Would  this  be  keeping  the  State  faith 
with  the  inhabitants  of  those  regions   interested 
n  the  construction  of  those  canals  ?     Would  it  be 
compatible   with   the  honor   and   dignity  of  the 
State,  now  to  abandon   these  works  ?     To  do  so, 
said  Mr.  W.,  would  be  repudiation   of  the   most 
shameless  and  treacherous  character.     The  gen- 
leman  from  Herkimer  has  spoken  of  repudiation 
njust  terms  of  reproach:  but  said  Mr.  W.,  there 
ire  other  modes  of  repudiation  than  the  refusal  to 
pay  State  debts.     This  State  is  solemnly  pledged 
o  complete  the  enlargement  of  the  Erie   canal. 
Vtr.  W.  said  he  recollected  among  the  reasons  as- 
igned  by  the  public  officers  from  1835  to  1838  for 
mdertaking  the  enlargement,  was  the  importance 
>f  giving  assurance  to  the  people  of  the   western 
states,  that  we  would  construct  and  maintain  a 
;hannel  of  transportation  from  Lake  Erie  to  the 
ludson  that  would   accommodate  their  trade,  so 
hat  they  might  construct  their  own  works  of  in- 
ernal  improvement,  in  reference  to  our  enlarged 
anals.     They  have  done  so,  and  on  such  assuran- 
es  have   constructed  railroads   and   canals  with 
pecial  reference  to  trade  and  travel  through  our 
state,  and  to  trade  not  on  the  present  canals,  nor 
n  one  of  the  dimensions   now   proposed  by  the 
entleman  from  Herkimer,  but  on  a  canal  having 
he  capacity,  and  which  will  afford  the  cheapness 
f  transportation  of  the  enlarged  canal.     Are  we 
eady  to  repudiate  these  pledges  and  assurances, 
r  to  acknowledge  ourselves  incapable  of  redeem  - 
ig  them  ?     To  do  either,  would   bring  dishonor 
n  the  State.     Not  unly  did  we  pledge   our  faith 
o  the  citizens  of  our  own  State  and  of  the  west- 
rn  States,  that  we  would  complete  these  canals, 
ut  we  sent  our  circulars  abroad  in  Europe,  invi- 
^rig  thousands  of  the  oppressed   citizens  of  that 
ountry  to  come  here,  promising  them   employ- 
lent.     In  proof  of  this,  Mr   W.  would   read  one 
f  these  circulars,  which   received   the   endorse- 
ent  of  the  Hon.  gentleman  from  Schoharie  (Mr. 
OUCK.) 
AiiOllKRS  WANTED  IN  THE  STATE  OF  N.  YORK. 

We,  the  undersigned,  together  with  others,  are 
ontractors  on  the   enlargement  of  the  Erie  canal 


J121 


between  the  cities  of  Albany  and  Utica.  Our  work 
consists  of  jobs  of  excavations,  construction  of 
locks,  aqueducts,  culverts,  bridges,  &c.  in  which 
we  expect  to  be  engaged  until  the  spring  of  1842. 
A  large  number  of  common  laborers  and  me- 
chanics, in  addition  to  those  which  now  appear 
to  be  in  the  country,  will  find  ready  employment, 
in  summer  and  winter,  at  liberal  wages.  The 
work  is  constructed  by  the  authority  of  the  State 
of  New-York,  whose  funds  are  ample,  and  en- 
sures prompt  payment ;  and  is  located  in  a  very 
healthy  country. 

John  Stewart  &  Co.  Jas.  Hutchins,  Best  &  Co. 

Sage,  Gustier  &  Co.  Yates  &  Vandebogert. 

Beach.  Chapman  &  M'Omber.  George  Strover. 
Timothy  N.  Ferrell  &  Co 
Yates,  Badgely  &,  Co. 
John  Ellis. 
H.  &  S.  i'armelee. 
Hai^ht,  Blood  &  Cady. 
Andw.  Jos.  Yates. 
Yate.>  &  Burnham. 


Biven  &  Veeder. 

Bigham  8t  Stewart. 

James  Stewart. 

Wilson  Van  Vrankenfc  Co. 

Davis  &  Curtiss. 

John  Sandford. 

Hart  &  Candee. 


Learned,  Goodull  &Hubbard.  John  N.  Vrooman. 
F.  Hitching  &  to.  John  M.  Ferrell. 

Barney  Becker 

I  certify,  that  I  am  personally  acquainted  with 
the  contractors  who  have  signed  the  above  notice; 
that  I  consider  them  honorable  and  responsible 


men  ;  and  that  the  facts  stated  are  correct. 
I  take  this  occasion  to  state   farther,  that 


the 


State  of  New- York  is  now  engaged  in  enlarging 
the  Erie  canal,  363  miles  in  length :  in  construct- 
ing the  Genesee  Valley  canal,  97  miles  in  length  ; 
and  the  Black  River  canal,  80  miles  in  length  ; 
involving  an  expenditure  of  about  $20,000,000, 
and  live  or  six  years  in  execution. — Dec.  4, 1838. 

WM  C.  BOUCK,  Canal  Commissioner. 
Such  were  the  promises — such  the  pledges 
which  you  made  not  only  to  the  people  of  your 
own  State,  but  which  you  sent  abroad  and  pub- 
lished in  Europe.  How  have  you  enabled  these 
contractors,  or  the  honorable  gentleman  from 
Schoharie,  to  redeem  their  pledges  to  the  thou- 
sands who  came  here  for  employment  on  their  as- 
surances ?  You  violated  the  contracts  and  laws 
of  the  State  on  which  these  assurances  were  in 
good  faith  made,  you  dealt  in  bad  faith  with  your 
own  State  engagements — and  the  consequence 
was  that  many  a  poor  man  was  sent  adrift  in  a 
strange  land  to  seek  labor  and  employment  as  he 
best  could  rind  it,  after  he  had  come  here  upon 
your  assurance  of  "  ready  employment  and  liberal 
wages."  The  injustice  to  the  laborers  on  the  ca- 
nals is  not  among  the  least  disgraceful  features  of 
that  policy  which  arrested  the  prosecution  of  the 
public  works. 

We  have,  said  Mr.  W.,  one  plain  and  practical 
question  before  us,  shall  we  go  on  with  the  public 
works,  or  acknowledge  ourselves  unwilling  or  in- 
capable to  do  so?  Notwithstanding  all  that  has  been 
said  in  respect  to  our  finances,  there  is  no  dilliculty 
in  that  quarter.  Your  entire  State  debt  to  be  pro- 
vided for  is  less  than  $22,<)00,0(.)(J.  Your  annual 
interest  on  that  debt  is  $1,230,936.  Your  canals 
an;  intrinsically  worth  inure  than  double  your 
debt,  and  now  yield  a  nett  revenue  of  $2,200,- 
These  tolls  are  annually  increasing.  The 
Comptroller,  in  Doc.  No.  73,  p.  14,  has  given  a  ta- 
ble of  the  nett  amount  of  tolls  that  will  be  received 
at  au  annual  increase  of  3  02- 100  per  ct.  from  184G 
to  1^.35  inclusive,  showing  the  amount  to  be  $2"),- 
318,785  HO,  In  this  estimate  the  nett  tolls  in  no 

115 


/ear  amount  to  three  million  pf  dollars.  The  pro- 
)osition  of  the  gentleman  from  Herkimer  takes 
"or  the  next  ten  years  to  supply  the  sinking  fund, 
nd  the  payments  to  the  treasury,  $2,172,700  an- 
lually,  being  in  the  ten  years  $21,725,000,  leav- 
about  three  millions  and  a  half  undisposed  of. 
it  will  be   seen  in  a  moment,  that  under  this  ar- 
rangement all  idea  of  prosecuting  the  enlarge- 
ment, to  the  dimensions  now  directed  and  estab- 
lished by  law,  must  be   given  up.     It  has  been 
proposed  by  some  to  allow  the  debt  to  remain  as 
it  is  for  ten  years,  and  merely  to  pay  the  interest 
and  supply  the  annuity  of  $200,000  to  the  general 
fund.     This  would  relieve  the  general  fund  from 
the  payment  of  the  interest  on  its  debt,  which  is 
$317,000,   and  be  more  than  the  amount  of  the 
State  tax,  and  leave  eleven  millions  to  be  expen- 
ded on  the  canals  in  the   next  ten  years.     This 
sum  thus   expended,  would  probably  be   the  best 
appropriation  of  the  revenues  for  the  public  in- 
terests.    It  would  very  nearly  complete  the  ca- 
nals, and  after  that  period  leave  the  revenues  to 
the  payment  of  the  debt,  so  that  a  million  of  dol- 
lars, after  paying  the  interest,  could  be  yearly  ap- 
plied  to   the  extinction  of  the  principal  of  the 
debt,  which  would  accomplish  that  object  in 
about  twenty-five  years  from  this  time  through  a 
properly  arranged  sinking  fund.     Another  pro- 
position brought  forward  by  the  gentleman  from 
Livingston  (Mr.  AYRATJLT)  authorizes    the  legis- 
lature^ increase  the  debt  to  $25,000,000  to  com- 
plete the  unfinished  works,  and  apply  the  sums 


borrowed  to  that  purpose,  and  creates  a  sinking 
fund  for  10  years  of  $1,500,000,  and  after  that 
period  $2,000,000,  annually  out  of  the  canal 
tolls,  to  pay  the  principal  and  interest  of  the 
State  debt,  leaving  the  surplus  tolls  togeth- 
er with  the  auction  and  fsalt  duties,  and  all  other 
receipts  into  the  treasury,  to  be  applied  by  the 
Legislature  to  defray  the  expenses  of  the  govern- 
ment, the  completion  of  the  unfinished  works, 
and  the  payment  of  the  State  debt.  This  propo- 
sition would  enable  the'  legislature  to  expend  in 
the  next  ten  years  some  twelve  millions  of  dol- 
lars on  the  public  works,  and  after  paying  the  in- 
terest on  the  entire  debt,  appropriate  annually 
$200,000  to  the  support  of  the  State  government. 
It  provides  for  the  payment  of  the  entire  debt'in 
about  28  years.  Other  propositions  have  also 
been  submitted,  having  in  view  the  payment 
of  the  public  debt  and  the  completion  of  the  un- 
finished works.  They  also  come  from  gentlemen 
whose  opinions  were  entitled  to  great  considera- 
tion. The  gentlemen  from  Allegany  (Messrs. 
ANGEL,  and  CHAMBERLAIN,)  and  from  Schoha- 
rie (Gov.  BOUCK,)  have  submitted  others.  The 
prominent  features  and  general  objects  of  all  these 
several  plans  were  similar,  viz  :  to  provide  for 
and  secure  the  payment  of  the  public  debt,  and 
the  completion  of  the  unfinished  works.  It  was 
a  matter  of  regret  that  the  only  one  brought  for- 
ward which  did  not  secure  the  completion  of  the 
unfinished  works,  was  by  the  standing  commit- 
tee. That  seemed  to  discriminate  between  the 
two  great  leading  measures  that  were  so  intimate- 
ly connected  with,  and  dependent  on  each  other, 
and  while  it  made  ample  provisions  for  the  paj- 
ment  of  the  debts,  it  puts,  to  say  the  least  of  it, 
the  prosecution  of  the  public  works  in  jeopardy! 
Whatever  might  be  the  intention  of  the  authors 


1122 


of  it,  if  adopted,  Mr ,  W.  said,  he  believed  it  would 
have  the  effect  to  arrest  those  works.  He  desir- 
ed to  see  the  debt  paid,  and  that  ample  provisions 
for  its  payment  should  be  made  ;  about  this  there 
was  but  one  objection.  There  never  had  been 
but  one,  and  if  the  whole  subject  should  remain 
as  it  was,  open  to  the  action  of  the  legislature,  no 
one  had  the  right  to  doubt,  but  the  most  ample 
provision  for  the  payment  of  the  debt  would  be 
made.  Any  doubt  or  suspicion  to  the  contrary, 
would  imply  a  distrust  of  the  integrity  of  the 
people.  Should  the  people  of  this  State  ever  be- 
come so  lost  to  a  just  sense  of  all  moral  obliga- 
tion as  to  be  indifferent  to  the  payment  of  the 
public  debt,  or  to  sanction  any  evasion  or  repudia- 
tion of  the  obligations  of  the  State,  it  would  be  in 
vain  to  hope  they  would  be  restrained  by  any  con- 
stitutional provisions.  He  was  not  in  favor  of  a 
constitutional  provision  for  the  payment  of  a  debt 
out  of  any  distrust  of  the  people  or  their  represen- 
tatives hereafter.  He  was  in  favor  of  it  as  a  great 
measure  of  State  policy,  and  under  the  circum- 
stances, deemed  it  wise  that  we  should  arrange  a 
system  of  finance  embracing  the  payment  of  the 
debt,  so  that  the  State  might  act  hereafter  on  the 
ground  that  the  debt  was  provided  for.  The 
people,  he  believed,  desired  that  this  arrange- 
ment, should  be  made  permanently  and  efficient- 
ly. They  have  not  settled  down  upon  a  day  or 
hour  when  this  'debt  shall  be  paid.  They  know 
full  well,  notwithstanding  all  that  has  been  said 
to  the  contrary,  that  the  State  possesses  ample 
means  to  pay  the  debt,  and  proceed  with  the  pro- 
secution of  the  unfinished  works.  They  desire 
also  that  both  these  objects  should  be  accom- 
plished— and  you  will  fail  to  satisfy  them  if  you 
neglect  to  do  so.  You  cannot  expect  the  public 
will  believe  the  State  unable  to  prosecute  the  un- 
finished works,  and  any  measure  that  tends  to 
that  result,  cannot  be  made  acceptable  by  any  in- 
temperate zeal  for  the  payment  of  the  debt.  Nor 
can  the  interests  of  the  State  be  evaded  by  an  ex- 
travagant exhibition  of  such  zeal.  The  people 
at  large  are  as  anxious  to  pay  this  debt  as  any  one 
here  is  to  secure  its  payment.  They  will  discri- 
minate between  a  plain  straight  forward  provis- 
ion to  pay  the  debt  consistent  with  a  reasonable 
purpose  to  complete  the  unfinished  canals  and  an 
over  zealous,  clamorous  tirade  against  the  State 
debt,  cloaking  a  hostility  to  the  whole  system  of 
internal  improvement.  Mr.W.  asked  what  course 
patriotism  and  an  enlightened  policy  dictated  >— 
The  answer  was  plain — secure  both  these  great 
objects — pay  your  debts  and  finish  your  canals— 
you  have  the  means  of  doing  both.  Gentlemen 
had  spoken  of  a  fixed  period  of  paying  the  exist- 
ing debt — of  some  pledge  to  that  effect  in  the  law 
of  1842 — so  far  as  there  was  any  thing  in  the  po- 
licy of  that  law  for  pajing  the  debts  of  the  State, 
he  would  not  wage  war  upon  it.  Whatever  there 
was  in  it  hostile  to  the  system  of  internal  im- 
provement, would  be  by  him  disregarded  and 
condemned;  we  were  not  acting  under  the  law  of 
1842,  nor  are  we  to  frame  our  constitution  upon 
it,  in  respect  to  our  finances  or  otherwise.  He 
was  as  anxious  to  pay  the  debt  as  the  most  strenu- 
ous supporter  of  that  law,  which  added  not  one 
substantial  pledge  or  guarantee  not  embraced  in 
other  and  prior  Jaws  to  the  security  of  the  public 
creditor.  The  day  would  probably  never  come 


when  all  should  be  agreed  on  the  construction  of 
that  law.  It  is  admitted  on  this  floor,  that  in  '44 
a  new  law  was  passed  to  explain  it.  He  threw  it 
out  of  view  in  seeking  to  frame  constitutional 
pledges  for  the  payment  of  our  debt.  He  believ- 
ed it  to  be  more  important  to  do  so  in  reference 
to  our  own  legislation  hereafter,  than  any  consid- 
erations connected  with  the  public  creditors;  they 
were  protected  by  the  laws  and  faith  of  the  State", 
and  he  would  never  admit  that  either  would  be 
violated,  or  that  constitutional  provisions  preserve 
the  laws  of  the  State,  or  its  faith  were  necessary; 
but  the  other  considerations  he  had  stated,  influ- 
enced him  in  favor  of  some  provisions  in  respect 
to  the  debt.  He  desired  not  to  leave  the  halls  of  this 
capitol  until  with  the  gentleman  from  Herkimer, 
he  could  say  to  the  people,  a  rule  had  been  fixed 
in  the  constitution  which  would  certainly  pay  the 
debt  beyond  contingency.  But  while  doing  this, 
he  did  not  want  to  lay  an  axe  at  the  root  of  our 
prosperity.  He  would  not  say  to  the  people  in 
the  Genesee  Valley  and  Black  River  countries, 
that  their  canals  were  not  to  be  completed,  nor 
would  he  say  to  the  city  of  New  York,  that  a  limit 
had  been  placed  on  the  capacity  of  that  great 
avenue  which  was  pouring  untold  millions  of 
trade  into  that  commercial  metropolis ;  and  there- 
fore while  securing  beyond  contingency  the  pay- 
ment of  every  dollar  of  the  State  debt,  he  would 
also  in  a  reasonable  and  safe  way  secure  the  com- 
pletion of  the  unfinished  canals.  This  done,  and 
we  shall  have  satisfied  the  people.  We  shall  have 
done  what  we  were  sent  here  to  do — secure  the 
payment  of  the  State  debt,  and  yet  at  the  same 
time  fulfil  the  equally  pledged  faith  of  the  State 
to  complete  its  unfinished  works.  The  ingenuity 
of  man  could  not  devise  a  plan  that  would  pay  the 
debt  more  surely  than  the  annual  appropriation 
of  $1,500,000  for  ten  years,  and  $2,000,000  there- 
after. If  you  had  the  whole  amount  of  your  State 
debt  now  in  the  Treasury,  you  could  not  consider 
its  final  payment  as  certain  as  it  will  be  under 
the  operation  of  a  sinking  fund  with  these  yearly 
appropriations.  No  one  believed,  or  for  a  mo- 
ment had  doubted  but  that  after  the  expiration  of 
ten  years  the  nett  revenues  of  the  canals  would 
be  at  least  f  2,000,000.  Every  calculation  of  the 
probable  increase  of  these  revenues,  had  fallen 
far  short  of  the  actual  results.  Even  the  far 
grasping  mind  of  Mr.  RUGGLES  had  failed  to  an- 
ticipate the  actual  revenues  of  the  canals. 

Mr.  W.  said  he  had  spoken  on  this  qnestion 
without  any  political  feelings  or  influence,  he  had 
purposely  avoided  any  allusion  to  the  acts  or 
opinions  of  his  political  friends  or  associates. — 
He  found  enough  in  the  views  and  opinions  of 
those  he  differed  with  in  politics,  to  sustain  him 
in  the  grounds  he  took  on  these  great  questions. 
He  hoped  party  considerations  would  not  be 
brought  in  to  influence  our  action.  He  came 
here  not  to  carry  out  his  own  views  or  the  views 
of  any  party  ;  but  to  compromise  and  arrange  all 
these  great  questions  satisfactorily  if  possible  to 
the  whole  State,  and  beneficially  to  the  interests 
of  all  her  citizens.  He  hoped  to  be  able  to  com- 
promise this  great  question — even  with  the  gen- 
tleman from  Herkimer.  He  was  not  strenuous 
as  to  the  precise  sum  that  should  be  set  apart  as  a 
sinking  fund.  He  had  named  $1,500,000  for  ten 
years,  and  $2,000,000  thereafter,  because  he  be- 


1123 


lieved  these  sums  would  not  leave  too  much  o- 
the  revenues  for  the  completion  of  the  canals,  anc 
in  naming  them  he  had  also  reference  to  a  further 
provision,  equal  to  the  appropriation  of  the  law 
of  1841,  ($200'000,)  for  the  support  of  the  State 
government  out  of  the  tolls ;  the  residue  of  the 
tolls  he  desired  to  see  secured  to  the  construction 
of  the  canals.  This  plan  would  pay  your  entire 
debt  in  1869,  more  certainly  than  if  this  Con- 
vention had  the  power  to  place  the  whole  amoun 
of  it  in  the  hands  of  the  Comptroller,  who,  he 
(Mr.  W.)  would  implicitly  trust  to  keep  the 
money,  whatever  he  might  be  disposed  to  do  in 
regard  to  the  best  interests  of  the  State  in  other 
respects.  Mr.  W.  appealed  to  gentlemen  to  go 
for  this,  or  some  similar  policy,  as  wise,  liberal 
and  j  ust.  He  would  remind  them  that  in  forming 
constitutions,  we  should  proceed  on  principles  oJ 
compromise  and  conciliation.  You  mi^ht  force 
a  measure  of  government  on  the  people  by  the 
force  of  party  power,  but  you  could  not  by  any 
such  appliances  force  them  to  submit  to  unjust 
constitutional  provisions.  It  was  the  great  con 
servative  feature  of  compromise  and  conciliation 
exemplified  in  our  history — that  more  than  any 
thing  else  gave  assurance  of  the  permanency  ol 
our  republican  institutions.  All  our  constitutions 
had  been  formed  on  principles  of  concession  and 
compromise.  He  pointed  gentlemen  to  that  body 
of  patriots  who  framed  the  instrument  which 
bind  these  States  together.  The  very  strength 
and  power  of  that  instrument  rests  in  the  fact  that 
it  was  framed  through  concession  and  compro- 
mise ;  and  shall  we  not  profit  by  that  illustrious 
example  ?  The  constitution  we  are  framing  af- 
fects the  interests  and  destinies  of  more  people 
than  was  then  embraced  in  the  Union.  If  in  this 
spirit  we  frarpe  this  instrument,  generations  yet 
to  come  will  live  prosperously,  happy  and  con- 
tented, under  its  safeguards  and  protection,  and 
we  may  have  the  consolation  of  knowing  in  after 
years,  when  the  excitements  and  bitterness  of 
party  strife  is  lost  in  the  feebleness  of  age,  that 
we  have  done  something  to  secure  to  the  people 
of  this  State,  with  the  blessings  of  God,  advanta- 
ges no  finite  mind  can  estimate. 

REMARKS  of  Mr.  0'CONOR,onMe  Judiciary, 
Thursday,  Sept.  3,  1846. 

The  question  being  on  the  amendment  of  Mr. 
MORRIS,  proposed  yesterday,  providing  for  addi- 
tional associate  judges  of  the  Supreme  Court  in 
the  city  of  New  York. 

Mr.  O'CONOR  said  that  simple  justice  to  the 
city  of  New  York,  required  the  adoption  of  this 
amendment.  There  was  a  great  excess  of  litiga- 
tion in  New  York,  beyond  the  ratio  of  her  popu- 
lation, and  to  allow  her  state  judges  only  in  pro- 
portion to  population,  was  unequal  and  unfair. — 
It  had  been  shown,  that  that  city  contributed  in 
taxes,  to  the  support  of  the  government  in  a  pro- 
portion fully  equal  to  the  cost  of  the  required 
excess  of  judicial  force.  And  even  if  this  were 
not  so,  the  city  would  still  be  entitled  to  this  ad- 
ditional force.  It  was  not  the  perverseness  of  her 


agents  for  the  people  of  the  interior — they  were 
obliged,  as  defendants  or  otherwise  to  sustain  the 
burthen  of  other   men's   controversies.     The  ju- 
dicial system  before  the  Convention,  contemplat- 
ed that  all  the  judicial  business  of  the  state  was 
to  be  performed  by  judges  of  equal  grade.     For 
this  purpose,  our  whole  judiciary  had  been  re- 
modeled, the  court  of  chancery  and  county  courts 
were  to  be  abolished — all  rivals  were  to  be  swept 
away,   and  a  monopoly  secured  to  the  new,   so 
called  Supreme  Court.     Was  not  the  city  of  New 
York  to  be  admitted   to  a  participation   in   these 
alledged  advantages  of  this  new  system  ?     Was  a 
mere  local  judge,  of  low  grade,  to  try  the  causes 
of  the  citizens  of  New  York,  whilst  in  all   other 
parts  of  the  state,   every  man's   suit  from  $100, 
upwards,  was  to  be  tried  by  a  state  judge  of  the 
first  grade,  paid  from   the   public  treasury,  and 
dignified  by  the  high  sounding  title  of  "Justice  of 
the  Supreme  court."      Surely  this  would,  not  be 
dealing  with  the  city  on  principles  of  even  hand- 
ed justice.      Gentlemen  have   said   they  would 
make  no  distinctions  between   the   city  and  the 
country.     This  was  all   New   York   asked.     No 
distinctions  had  been  made  heretofore,  and  if  the 
amendment  should  not  be  adopted,  a  distinction 
will  now  be  made  for  the  first  time.     Heretofore 
New  York  had  occupied   the  time   of  the   high 
judicial  officers  of  the  state  in  the  precise  ratio  of 
her  business      It   was    estimated,   that  business 
coming  from  that  cjty,  had  usually  occupied  about 
one  half  of  the  Chancellor's  time,  one  quarter  of 
the  time  of  the  Court  of  Errors,  and  a  very  large 
proportion  of  the  time  of  the  Supreme    Court. — 
But  the  new  scheme  of  three  judges  in  eight  dis- 
tricts, limited  New  York  to  the  one-eighth  part 
of  the  judicial  force  of  the   state.     This  clearly, 
will  be  insufficient.      Then  why  not  allow  to  the 
city  district  a  larger  number  ?      It  had  been  said 
that  this  would  give  the  city  a  larger  representa- 
tion in  the  Supreme   Court,  than  her   population 
entitled  her  to  claim.     This  objection  is  founded 
in  many  falacies.      In  the  first  place,  what  have 
the  judges  to  do  with  representing   the   people  ? 
^L  judge  represents    the   majesty    of   justice — 
he  speaks  the  voice   of   the  la.v  —  he    is  not 
the  exponent  or  executioner   of   the     popular 
will.    In  the   next   place,  the  supreme  court  of 
thirty-two  judges  was  an  ideal  fiction.      The  su- 
preme court  exists  only  in  name,  it  is  a  mere  ab- 
straction.    It  is   "invisible  and    intangible,  and 
exists  only  in  contemplation  of  law."     One  of  the 
supporters  of  this  plan — one  of  the   committee, 
had  compared  it  to  the  trinity.     That  gentleman 
"nsisted  that   we  ought  to   see  it  with  the   eye  of 
aith,  and  believe  in  its  existence,   although  we 
could  not  perceive  it  with  our  physical  senses. — 
lie  (Mr.  O'C.)  would  not  step  aside  from  his  ar- 
ument  to   observe  upon   this  comparison.     He 
would  merely  remark  that  its  eye   conceded  the 
supreme  court  of  the  new  judicial  plan  to  be  un- 
iiscoverable  to   mortal  ken — a  matter  of  faith. — 
And   this  was  clearly  so.     Certainly   these   32 
udges  were  never  to  meet  and  hear,  or  decide  a 
He  admitted  that  there  was  nothing  in  the 


citizens,  or  their  tendency  to  disputation,   that  I  plan  which  in  terms  forbid  their  so  meeting;   but 
created  the  necessity  for   the  addition,  as  had  j  the  whole  scope— the  whole  design  of  that  plan 


been  illiberally  and  unfairly  insinuated.  The 
commerce  of  the  whole  state  was  concentrated  in 
that  city.  Her  merchants,  were  the  trustees  and 


was  against  such  an  idea.  They  were  to  hold 
their  law  terms  in  districts,  three  judges  were  to 
be  sufficient  to  hold  such  term,  and  from  every 


1124 


judgment  rendered,  an  appeal  lay  to  the  eight 
judges  of  the  court  of  appeals.  'Of  these  eight 
judges,  five  would  form  a  quorum,  and  three  could 
decide.  Four  judges  of  the  supreme  court  were 
to  sit  in  the  court  of  appeals,  and  they  alone  were 
sufficient  to  prevent  the  reversal  of  any  judgment. 
They  could  produce  a  tie,  and  an  affirmance. — 
Will  any  friend  of  this  scheme  arguing  with  per- 
verse ingenuity  against  light  and  against  reason, 
to  sustain  it  right  or  wrong — assert  that  the  32 
judges  may  rightfully  sit  together  and  decide  a 
supreme  court  case?  If  so,  what  was  the  proprie- 
ty of  allowing  an  appeal  from  their  decision  to  the 
court  of  appeals?  Was  the  judgment  perhaps 
unanimous — it  32  judges  to  be  gravely  received 
into  the  court  of  appeals — there  solemnly  heard 
before  four  of  the  same  judges  and  four  others, 
the  farce  ending  with  an  affirmance  by  the  votes 
of  the  first  four  ?  To  make  this  incongruity  more 
apparent,  it  had  been  said  by  prominent  members 
of  the  judiciary  committee  that  the  eight  members 
will  not  generally  attend  the  court  of  appeals — 
that  the  quorum  of  five  will  be  the  common  num- 
ber in  attendance.  This  shows  it  to  be  plainly 
inconsistent  with  the  plan  that  any  considerable 
number  of  the  32  judges  should  ever  decide  a  case 
in  the  supreme  court.  An  appeal  from  three 
judges  to  five  judges,  all  of  equal  grade,  was  suffi- 
ciently frivolous,  without  descending  to  the  folly 
of  allowing  an  appeal  from  a  greater  number  to  a 
less.  It  was  clear  that  the  plan  contemplated  no 
supreme  court.  It  contemplated  a  local  district 
court  of  4  judges,  with  an.  appeal  to  a  central 
State  court  of  eight  judges.  If  the  supreme  court 
of  32  judges  was  a  reality,  the  court  of  appeals 
would  be  an  absurdity.  But  however  contradic- 
tory the  arguments  in  support  of  the  plan  may  be, 
there  is  no  contradiction  in  the  plan  itself.  It  is 
a  distinct  system,  and  allows  an  appeal  from 
three  or  four  judges,  to  five  or  eight,  as  the 
case  may  be. 

From  this  view  of  the  matter  it  would  be  seen 
that  the  notion  of  the  city  obtaining  an  undue  re- 
presentation in  the  supreme  court,  was  a  fallacy. 
The  judges  of  that  court  are  never  to  meet  in  joint 
session,  and  consequently  an  increase  of  judges  in 
the  district  court  of  the  district  of  New- York, 
could  not  countervail  the  due  influence  of  other 
districts  in  the  ideal  tribunal  called  the  supreme 
court.  We  had  been  told  that  judges  will  be  sent 
from  other  districts  to  supply  the  deficiency  in 
New- York.  To  this  he  objected  most  solemnly. 
It  was  one  of  the  faults  of  the  bad  system  offered 
to  the  Convention,  that  an  equal  number  of  judg- 
es were  assigned  to  each  district.  This  rigid  rule 
presented  one  of  the  phases  of  the  radical  error 
pervading  the  whole  report.  In  the  second  judi- 
cial circuit,  which  would  form  a  district,  one 
judge  has  for  many  years  done  all  the  circuit  busi- 
ness. Little  business  had  been  done  in  its  county 
courts,  and  few  cases  had  gone  up  for  review.  In 
this  district,  then,  two  judges  would  afford  a  su- 
perabundance of  judicial  force.  The  same  was 
no  doubt  true  of  other  districts.  But  in  the  first 
district,  formed  of  the  city  of  New- York,  nine  or 
ten  juderes  would  be  required.  This  deficiency, 
it  was  said,  migftt  be  supplied  from  the  judges 
elected  in  the  second  and  other  districts.  Again 


he  protested  against  this.  He  had  been  charged 
with  entertaining  a  great  repugnance  to  permit- 
ting country  judges  to  sit  in  New-York,  and  terms 
of  disrespect  for  the  country  judiciary  had  been 
imputed  to  him  which  he  never  used.  One  phrase 
imputed  by  the  gentleman  from  Herkimer,  (Mr. 
LOOMIS,)  he  had  never  even  heard  in  his  life  be- 
fore, and  he  knew  not  what  it  meant.  It  was  no  ' 
sentiment  of  disrespect  for  country  judges,  that 
induced  him  to  object — it  was  a  reverence  for  de- 
mocratic principles.  He  had  been  taught  to  be- 
Lieve  that  no  man  had  a  right  to  exercise  power 
over  the  citizen  unless,  directly  or  indirectly,  that 
citizen  had  a  voice  in  his  appointment.  He  had 
supposed  this  rule  applied  equally  to  the  judicial 
as  to  the  executive  and  legislative  departments, 
[n  practice  that  rule  had  not  yet  been  departed 
from.  Though  a  circuit  judge  might  be  transfer- 
red from  one  circuit  to  another,  he  was  the  ap- 
pointee of  the  governor  and  senators,  who  repre- 
sented the  whole  people  in  making  the  appoint- 
ment. Though  the  senators  elected  in  distinct 
districts  voted  in  the  court  of  errors,  yet  the  judg- 
ment pronounced  was  the  result  of  an  union  of 
voices  from  every  district  of  the  State.  But  when 
we  come  to  the  holding  of  a  district  court  in  the 
county  of  Erie,  by  judges  elected  in  the  district 
of  New-York,  and  vice  versa,  all  principle  is  lost 
sight  of. 

The  electors  of  a  district  do  not  represent  the 
electors  of  any  other  district ;  they  hold  no  fidu- 
ciary trust  from,  and  do  not  act  for,  their  fellow 
citizens  in  other  districts.  They  act  in  their  own 
ight,  according  to  their  own  taste  or  fancy,  and 
without  responsibility.  If  the  people  of  New- 
ark must  take  their  judges  from  the  electors  of 
Erie,  they  will  be  reduced  to  the  same  condition 
in  which  the  people  of  these  colonies  were  when 
judges  were  sent  from  Britain  to  rule  over  them. 
They  will  be  governed  by  those  in  whose  appoint- 
ment they  have  no  voice,  directly  or  indirectly. 
One  gentleman  had  said  that  if  bad  judges  were 
sent  to  them,  they  might  retort  the  evil.  This 
was  not  said  in  soberness,  but  he  would  give  it  a 
sober  answer — retort  is  no  remedy  for  evils  suf- 
fered. It  was  true  that  the  electors  of  Erie  were 
their  fellow  citizens,  and  it  may  be  supposed 
would  act  from  a  sense  of  justice  and  select  for 
them  good  judges.  No  doubt  they  would  act  with 
good  intentions.  But  this  was  no  answer  to  the 
objection.  The  same  might  be  said  in  support  of 
a  proposition  to  constitute  the  electors  of  Dutchess 
or  Clinton  the  electoral  body  for  the  whole  State. 
It  was  quite  probable  that  our  officers  would  be  as 
well  selected ;  but  ought  the  rest  of  the  State  to 
submit  to  such  a  deviation  from  principle  ?  Per- 
haps if  it  were  enacted  that  Massachusetts  should 
send  us  all  our  judges,  we  would  fare  better  than 
under  any  arrangement  likely  to  be  made.  But 
no  man  here  would  propose  that  mode  of  appoint- 
ment. He  deemed  it  indispensable  to  the  main- 
tenance of  sound  principles,  that  these  elective 
judges  should  be  confined  to  the  districts  in  which 
they  were  elected,  and  consequently  hoped  that 
the  Convention  would  allow  the  district  of  New- 
York  to  elect  within  its  own  borders  so  many  as 
were  required  to  transact  its  judicial  business. 


INDEX 


ALLEN,  Mr.  a  delegate  from  New  York. 
Remarks  on  the  Judiciary,  818,  827 

on  the  Canals  and  Finances,  878 

on  Bank  ing  and  Currency,  996 

on  Local  Officers,  1010,  1011,  1012 

ANGEL,  Mr.  a  delegate  from  Allegany. 
Remarks  on  the  Arrangement  of  Business,  47, 48 
on  the  Executive  Department,  190.  339, 340 
and  presentation  of  his  report  relative 

to  Local  Officers,  310 

on  the  discussion  of  the  Report, 

100G,  1007,  1009,  1011 
on  the  apportionment,  election  and  te- 
nure of  Office  of  the  Legislature, 

427,  434,  438 

on  the  Judiciary  Article,        581,  818,  827 
on  the  Canals  and  Finances,  843,  857, 

879,  911,  913,  933,  954 
on  the  proposition  of  Mr.  J.  J.  TAY- 
LOR, relative  to  the  Chenango  Ca- 
nal, 961 
on  the  .Rights  of  Married  Women,         1042 
on  the  resolution  of  Mr.  HART  on  the 

0  Avego  Canal,  1050 

on  the  Rights  and   Privileges  of  the 

Citizen,  1053 

ARCHER,  Mr.  a  delegate  from  Wayne. 

Remarks  on  the  Executive  Department,  47, 48 
on  the  Canals  and  Finances,  843 

on  Local  Officers,  1012 

AYRAULT,  Mr.  a  delegate  from  Livingston. 
Remarks  on  the  Rights  and  Privileges  of 

the  Citizen,  548,1050,1051,  1053 

on  the  Canals  and  Finances,  917 

on  Corporations,  other  than  Banking 

and  Municipal,  9.74,  970  980 

on  Currency  and  Banking,  985,  991, 

992,  993,  994,  996,  997 
ARRANGMENT  OF  BUSINESS.      - 

Discussion  thereon,  37 

ASSESSMENTS  OF    PERSONAL    PRO- 
PERTY. 

Resolution  of  Mr.  RUGGLES,  95 

ABOLITION    OF     CAPITAL    PUNISH- 
MENT. 

Resolution  of  Mr.  CONELEY,  105 

ARREST  OF  NEGRO  RUNAWAYS. 

Resolution  of  Mr.  RHOADES,  109 

APPRAISAL  OF  PRIVATE  PROPERTY 
TAKEN  FOR  PUBLIC  PURPOSES. 
Resolution  of  Mr.  STOW,  118 

ARRANGEMENT  OF  THE  NEW  CON- 
STITUTION. 
Resolution  of  Mr.  BRAYTON,  118,  842 


ASSESSMENTS  AND  TAXES. 

Resolution  of  Mr.  HARRIS,  140 

ABOLITION  OF  BOARDS  SUPERVISORS,   208 

APPROPRIATIONS  FOR  LITERARY 
PURPOSES. 
Resolution  of  Mr.  LOOMIS,  268 

ACCOUNTANT  GENERAL. 

Resolution  of  Mr.  WORDEN,  634 

ADJOURNMENT  FINAL. 

Resolution  of  Mr.  STEPHENS,  776 

Reconsidered,  1061 

Discussion  thereon,  781 

Resolution  of  Mr.  CHATFIELD,  395 

ADDRESS  TO  THE  PEOPLE,  1082 


BACKUS,  F.  F.  Mr.  a  delegate  from  Monroe. 
Remarks  on  the  Executive  Department,  307, 308 
on   the  Article  relative  to  the  State 

Officers,  519 

on  the  Judiciary  Article,         847,  856,  868 
BAKER,  Mr.  a  delegate  from  Washington. 
Remarks  on  the  Arrangement  of  Commit- 
tees, and  order  of  Business,    ,       79,  530 
on  the  Executive  Department,  308 

on  the   apportionment,   election   and 
tenure  of  Office,  of  the  Legislature, 

389,  395,  396,  401 
on  the  Article  relative  to  the  State 

Officers,  510,  520 

on  the  Rights  and  Privileges  of  the 

Citizen,  539 

on  the   Judiciary  Department,   682, 

769, 771, 777, 801, 803, 808, 835,  836, 838 
on  Canals  and  Finances,945, 950, 957, 

1011,  1012 

on  Currency  and  Banking,  998 

on  Mr.  BOWDISH'S  resolution  relative  . 

to  Education,  1025 

on  the  Elective  Franchise,  1037 

BANKING  SYSTEM. 

Resolution  of  Mr.  POWERS,  107 

BANKS  AND  BANKING. 

Report  of  the  Standing  Committee  there- 
on through  Mr.  CAMBRELENG,  371 
discussion  thereon,               985,  1000, 1010 
BANKS — CAPITAL  STOCK  PAID  IN,  &c. 

Res  lution  of  Enquiry  of  Mr  MURPHY,         289 
Exhibit    of  AfFairs-^-Resolution    of   Mr. 

RUGGLES,  117 

BASCOM,  Mr.  a  delegate  from  Seneca. 
Remarks  on  the  Arrangement  of  Commit- 
tees, and  the  order  of  Business,  42, 57,  78 
on  the  resolution  for  Door-keeper  to 
the  Ladies'  Gallery,  67 


1126 


manner  of  Committees  reporting,          143 
on  the  Executive  Department,   175, 

186,  220,  287,  290,  297,  317,  342,  360 
on  the  apportionment,  election  and  te- 
nure of  Office,  of  the  Legislature, 
375,  391,  406,  426,  427,  435,  458, 

467,  468,  469,  477 
on  the  Rights  and  Privileges  of  the 

Citizen,        453,  537,  538,  541,  542,  545 
on  the  presentation  of  his  Minority 

Report  on  the  Judiciary,  489 

on   the  Article   relative  to  the  State 

Officers,        500,  501,  516,  519,  534,  535 
on  the  correction  of  a  Reporter's  Er- 
ror, 535 
on  the  Salt  Duties,                              .    535 
on  the  Judiciary  Article,  556,  558, 
582,  589,  654,  657,  658,  684,  724, 
754,  755,  761,  764,  765,-  766,  770, 
772,  776,  778,  783,  784,  785,  788, 
794,  797,  798,  799,  801,  804,  805, 

806,  1071 
on  the  Canals  and  Finances,  868, 877, 

906,  932,  944 

on  the  proposition  of  Mr.  J.  J.  TAY- 
LOR relative  to  the  Chenango  Ca- 
nal, 961 
on  Incorporations   other  than  Bank- 
ing and  Municipal,              967,  970,  981 
on  Banking  and  Currency,              994,  995 
on  Local  Officers,      1007,  1008,  1011,  1013 
on  future  Amendments,                        1038 
on  the  Rights  of  Married  Women, 

1039, 1060 

on  the  Militia,  1049,  1076 

on  the  Equalization  of  Taxation,         1069 
on  Separate  Submission,  1079 

BERGEN,  Mr.  a  delegate  from  Kings. 
Remarks  on  the  Arrangement  of  Commit- 
tees, and  the  order  of  Business,  70 
on  the  apportionment,  election  and 
tenure    of  Office    of  the   Legisla- 
ture,   383,  388,  421,  425,  427,  447, 

450,  467,  797 

on  Local  Officers,  1009,  1010 

on  the   Rights   and  Privileges  of  the 

Citizen,  1056 

BETTING  ON  ELECTIONS. 

Resolution  of  Mr.  ANGEL,  97 

BIENNIAL  SESSIONS  OF  THE  LEGIS- 
LATURE. 

Resolution  of  Mr.  CORNELL,       .  104 

BOUCK,  Mr.  a  delegate  from  Schoharie. 
Remarks  on  the  apportionment,   election 
and  tenure  of  Office,  of  the  Legisla- 
ture, 466 
on  the  Canals  and  Finances,  848,849, 

909,  912,  917,  920,  931,  932 
BOARDS    OF    SUPERVISORS.— POWERS 

THEREOF. 

Resolutions  of  Mr.  WHITE,  150 

"  of  Mr.  FORSYTH,  116 

Report  thereon  by  Mr.  R.  CAMPBELL,         946 

Discussion  thereof,  1069,  1072 

BOARDS  OF  APPRAISERS. 

Resolution  of  Mr.  TOWNSEND,  969 

BOWDISH,  Mr.  a  delegate  from  Montgomery. 

Remarks    on  his   resolution   relative   to 

Education,  1022 

BROWN,  Mr.  a  delegate  from  Orange. 


Remarks  on  the  Arrangement  of  Commit- 
tees, and  the  order  of  Business,  24, 

25,  40,  43,  53,  56,  530 
on  the  resolution  of  Mr.  CROOKER  for 

the  appointment  of  Stenographers,      61 
on  the  manner  of  Committees  Report- 
ing, 98,  131,  133 
on  the  Arrangement  of  the  Amend- 
ments, 128 
on  the  Executive  Department,   168, 
191,  229,  253,  292,  296,  297,  304,    " 

308,  311,  329,  339,  349 
on  the  apportionment,  election  and  te- 
nure of  Office,  of  the  Legislature, 

415,  469,  470,  472,  478 
on  the  presentation  of  his  Report  on 

the  Judiciary,  493 

on  the  Rights  and  Privileges  of  the 

Citizen,  544,  547,  530 

on  the  Judiciary  Article,  554,  559, 
589,  615,  641,  642,  714,  734,  759, 
761,  762,  763,  768,  769,  771,  772, 
773,  776.  778,  779,  780,  781,  782. 
785,  786,  787,  789,  794,  798,  801, 

804,  805,  807,  808 

on  the  Canals  and  finances,  932,  943 

on  the  Elective  Franchise,  1036, 1037, 

1044,  1045 
on  the  resolution  relative  to  the  Os- 

wego  Canal,  1050 

on  Feudal  Tenures,  1052,  1053 

on  the  Rights  of  Married  Women,       1059 
on  the  Law  of  Libel,  1061 

BRUCE,  Mr.  a  delegate  from  Madison. 
Remarks  on  the  resolution  for  the  appoint- 
ment of  a  Door-keeper  in   the  La- 
dies' Gallery,  67 
on  the  manner  of  Reports  from  Com- 
mittees,                                                135 
on  the  Executive  Department,    177, 

264,  287,  288,  339,  345 
on  the   apportionment,  election  and 
tenure  of  Office  of  the  Legislature, 

406,  446,  458,  468,  469,  471 
on  the  Article  relative  to  the   State 

Officers.  509 

on  the  Rights   and   Privileges  of  the 

Citizen,  540,  543 

on  the  Judiciary,  771,  784,  706,  797, 

798,  799,  804 

on  the  Canals  and  Finances,  851,  915,  929 
on  Incorporations  other  than  Bank- 
ing and  Municipal,  969,  981 
on  the  Elective  Franchise,  1014, 1029, 1033 
on  the  final  vote  on  the  Constitution,  1082 
BRUNDAGE,  Mr.  a  delegate  from  Steuben. 
Remarks  on  the  Executive  Department, 

242,  345,  346 
on  the   Rights  and  Privileges  of  the 

Citizen,  550 

on  the  Judiciary,  740,  808 

on  the  Canals  and  Finances,  926 

on  Feudal  Tenures,  1052 

on  Incorporations  other  than  Bank- 
ing and  Municipal,  981 
on  the  Rights  of  Married  Women, 

1041,  1060 

BURR,  Mr.  a  delegate  from  Delaware. 
Remarks  on  the  manner  of  Committees 

Reporting,  142 


1127 


on  his  resolution  to  restrict  State  In- 
debtedness, 347 
on  the  apportionment,     election  and 
tenure  of  Office  of  the  Legislature, 

374,  466 
on   the  Article  relative  to  the  State 

Officers,  507 

on  the  Rights  and  Privileges  of  the 

Citizen,  539,  552,  714,  759 

on  the  Judiciary,  833,  834 

on  the  Canals  and  Finances,  896,  940 

on  the  Elective  Franchise,  1014, 1034, 1036 

BUSINESS  OF  THE  COURTS. 

Resolution  of  Inquiry  of  Mr.  NICOLL,  51 

of  the  Convention— report  on'the  or- 
der thereof  by  Mr.  LOOMIS,  523 
Resolution  in  relation   thereto,  by  Mr.  A. 

B.  WRIGHT,  985 


CANALS  AND  DEBT. 

Resolution  of  Mr.  TILDEN, 
CANALS. 
Resolution  of  Mr.  AYRAULT, 

of  Mr.  HART,  relative  to  Osweeo  Ca- 
nal, 1049 
of  Mr.  CHAMBERLAIN,  94 
of  Mr.  F.  F  BACKUS,                             159 
CANALS  AND  FINANCES. 
.Report  of  Mr.  HOFFMAN,                                461 
Plan  of  Mr.  ANGEL, 

Mr.  AYRAULT'S  Proposition,  776 

Mr.  BOTJCK'S  Minority  Report,  66( 

Mr.  LOOMIS'  Substitute,  895 

Mr.  CHAMBERLAIN'S  Proposition,  802 

Mr.  MAXWELL'S  Proposition,  103 

Discussion  thereon,   843,  867,  878,  880, 
894,  896,  909,  913,  934,  939,  940, 

946,  958,  107 
CAMPBELL,  R.  Mr.  a  delegate  from  Steu- 

ben. 
Remarks  on  the  Executive  Department, 

344,  359 

on  the  Apportionment,  Election  and 
Tenure   of  Office  of  the   Legisla- 
ture, 380,  382,  405,  419,  420,  422,  451 
on  the  Article  relative  to  the   State 

537 


Officers, 
on  the  Rights  and  Privileges  of  the 

Citizen,  543 

on  the  Canals  and  Finances,  921 

on  the  Powers  of  Boards  of   Supervi- 
sors, 1069 
CAMBRELENG,  Mr.  a  delegate  from  Suf- 
folk. 

Remarks  on  the  Arrangement  of  Commit- 
tees, and  the  Order  of  Business,  32, 

52,  528 

on  the  manner   of  Committees'  Re- 
porting, 130 
on  the  presentation  of  his  Report  on 

Banks  and  Banking,  184,  372 

on  the  Personal  Liability  Question,      226 
on  the  Executive   Department,  303, 

306,  308,  363 

on  the  Apportionment,  Election   and 
Tenure  of  Office  of  the  Legislature, 

401,  402,  407,  420,  449,  458.  469 
on  the  Article  in  relation  to  the  State 
Officers,  516 


on   the  Judiciary  Article,  792,  795, 

810,  819,  833 
on  the  Canals  and  Finances,  910, 912, 

936,  948 

on  Incorporations,  other  than  Bank- 
ing and  Municipal,  969,  974,  980, 

982,  983,  984 

on  Banking,  &c.,  985,  986,  992,  993, 
994,  995,  996,  997,  998,  999,  1000, 

1001,1004,  1006,  1010,  1073 
on  the  Final  Vote  on  the  Constitu- 
tion, 1081 
CHATFIELD,  Mr.  a  delegate  from  Otsego. 
Remarks  on  the  Arrangement  of  Commit- 
tees, and  the  order  of  Business,  33, 

34,  39,  43,  47,  71,  78,  79,  530,  532 
on  Mr.  CROCKER'S  Resolution  for  the 

appointment  of  Stenographers,  61 

on  the  locality  of  Taxation,  122 

on  the   manner  of  Committees'  Re- 
porting, 132,  147 
on  the  Presentation  of  his  Report  in 

relation  to  the  State  Officers,  &c.       150 
on  Mr.  PERKINS' Resolution,  relative 
to  the  Salaries  of  Civil  Officers,  151, 

158,  159 

on  the  Executive  Department,  273, 
277,  339,  343,  344,  345,  350,  351, 

352,  354,  356,  358,  360,  370 
on  the  Apportionment,  Election  and 
Tenure   of  Office   of  the   Legisla- 
ture, 374,  382,  383,  385,  388,  394, 
396,  400,  402,  419,  422,  423,  424, 
425,429,  430,  431,436,  446,  450, 
452,  453,  455,  456,  466,  469,  477,  480 
on  the  Article  in  relation  to  the  State 
Officers,    498,  499,  500,  503,  504, 
506,  507,  509,  512,  520,  523,  534, 

535,  536 

on  the  Rights  of  the  Citizen,  539,542,  543 
on  the  Judiciary,  560,  655,  656,  657, 
659,  683,  684,  715,  725,  729,  732, 
751,  756,  758,  759,  760,  762,  763, 
764,  769,  813,  816,  821,  826,  827, 

831,  832,  833,  834,  835,  837 
on  Incorporations,  other  than  Bank- 
ing and  Municipal,  967 


CHAMBERLAIN,  Mr.  a  delegate  from  Al- 

legany. 

Remarks  on  the  Apportionment,  Election 
and  Tenure  of  Office  of  the  Legisla- 
ture, 448,  458 
on  the  Article  relative  to  the  State 

Officers,  &c.,  522 

on  the  Canals  and  Finances,  848, 849, 

857,  902,  927,  932 

on  the  Oswego  Canal,  1050 

on  the  Final  Vote  on  the  Constitu- 
tion, 1082 
CHANCERY— INFANT  SALES  THEREIN. 

Resolution  of  Mr.  TAGGART,  114 

Discussion  thereon,  125 

FUNDS  OF  SAID  COURT. 

Resolution  of  Mr.  RHOADES,  126,166 

Mr.  MANN'S  Resolution,  443,496,615 

Report  of  Mr.  RUGGLES,  565 

Report  of  Mr.  MANN,  669 

2  "  "         «*  1072 

Minority  Report  of  Mr.  TAYLOR,  682 

CHENANGO  CANAL. 


1128 


Resolution  of  Mr.  J  J.  TAYLOR,  960 

CLASS  LEGISLATION. 

Resolution  of  Mr.  WHITE,  81 

CLERGYMEN. 

Resolution  of  Mr.  BOWDISH,  95 

CLARK,  Mr.  a  delegate  from  Oswego. 

Remarks  on  the  Elective  Franchise,  1036 

CLYDE,  Mr.  a  delegate  from  Columbia. 

Remarks  on  the  Executive  Department,      353 
on  the  Apportionment,  Election  and 

Tenure  of  Office  of  the  Legislature,    419 
on  the  Rights  and  Privileges  of  the 

Citizen,  1051 

on  the  Judiciary  Article,  793 

on  Feudal  Tenures,  1026,  1052 

CODIFICATION  OF  THE  LAWS. 
Resolutions  of  Mr.  WHITE,  109 

Discussion  thereon,  117,  838 

Report  of  Mr.  WHITE  thereon,  588 

COLLECTION  AND  DISBURSMENT  OF 

THE  PUBLIC  REVENUES. 
Resolution  of  Mr.  SHEPARD,  86 

COMMON  SCHOOL  FUND. 

Resolution  of  Mr.  NICOLL,  113 

COMMON  SCHOOLS. 

Report  of  Mr.  TUTHILL,  709 

Minority  Report  of  Mr.  WILLARD,  709 

Letter  from  Common"School  Convention,     112 
Resolution  of  Mr.  PENNIMAN,  99 

COMPENSATION    OF    LEGISLATIVE 

CLERKS. 

Resolution  of  Mr.  MANN,  959 

Report  of  Mr.  CHATFIELD  on  the  same,       968 
COMPENSATION  OF  CIVIL  OFFICERS. 

Resolution  of  Mr.  PERKINS,  150 

COMMITTEES. 

Manner  of  Reporting,  129 

Duties  of,  Resolution  of  Mr.  BAKER,     97 
On  Rules,  18 

Appointment  of  Standing,  91 

on  County  Court  Expenses,  24 

on  Judiciary  Returns,  106 

on  the  Funds  in  Chancery,  337 

of  17,  on  the  Order  of  Business,  41 

to  Arrange  Business,  310 

on  the  Resolution  of  Mr.  MANN,         128 
on  the  Resolution  of  Mr.  SHAW,         104 
on  the  Revision  of  the  Constitution,    985 
COMMISSARY  GENERAL. 

Resolution  of  Mr.  BRUCE,  503 

CONELEY,  Mr.  a  delegate  from  New  York. 
Remarks  on  the  Executive  Department,      330 
on  the  Apportionment,  Election  and 
Tenure  of  Office  of  the  Legislature, 

419,426,477 
on  the  Rights   and  Privileges  of  the 

Citizen,         .-  544,  548 

on  the  Judiciary  Article,  556,  760,j768,  794 
on  the  Oswego  Canal,  1050 

CONTRACTS  WITH  THE  STATE. 

Resolution  of  Mr.  CHATFIELD,  97 

CONSIDERATION  OF  RESOLUTIONS. 

Resolution  of  Mr.  BROWN,  349 

CONTRACTS— LAWS  IN  RELATION 

THERETO. 

Report  of  Mr.  TALLMADGE,  833 

COURTS— OF    APPEAL    FROM    JUSTICES' 
COURTS. 

Resolution  of  Mr.  WATERBURY,     150 
OF  EQUITY. 


Resolution  of  Mr.  BASCOM,  764 

FOR  THE  CORRECTION  OF  ERRORS, 
AND  OF  CHANCERY. 
Resolution  of  Mr.  SWACKHAMER,     86 
CITY. 

Resolution  of  Mr.  RUGGLES,         1078 
COUNTY,  MAYORS  AND  RECORDERS'. 

Resolutions  of  Mr.  KIRKLAND,        35 
OF  ARBITRATION. 

Resolution  of  Mr.  STEPHENS,         128 
OF  CONCILIATION. 

Plan  of  Mr.  KIRKLAND,  588 

COUNTY. 

Plan   of  Messrs.  J.   J.   TAYLOR 

and  BRUCE,  803 

Plan  of  Mr.  CROOKER,  698 

FUNDS  OF. 

Resolution  of  Mr.  WHITE,  443 

EXPENSES  OF.  115 

JUSTICES',  &c. 

Resolution  of  Mr.  RICHMOND,          99 
COUNTY  OFFICERS. 

Resolution  of  Mr.  GARDINER,  100 

COOK,  Mr.  a  delegate  from  Saratoga. 
Remarks  and  Resolution  on  the  Personal 

Liability  Question,  226 

on  the  Apportionment,  Election  and 
Tenure  of  Office  of  the  Legislature, 

422,  424,  428,  469 
on  the  Judiciary  Article,    778,  779, 

794,  798,  820 

Correcting  an  Error  of  a  Reporter,        825 
on  the  Rights  of  Married  Women,         1056 
on  Incorporations,  other  than  Bank- 
ing and  Municipal,  982 
on  Banking,  &c.,                     996,  998,  999 
on  Mr.  MAXWELL'S  Proposition  rela- 
tive to  the  Lateral  Canals,                1038 
on  the  Proposition  relative  to  the  Os- 
wego Canal,                                        1050 
CORNELL,  Mr.  a  delegate  from  New  York. 
Remarks  on  the  Executive  Department,'      174 
on  the  Rights  and  Privileges  of  the 

Citizen,  550 

on  Local  Officers,  1011 

on  the  Elective  Franchise,  1045 

CROOKER,  a  delegate  from  Cattaraugus. 
Remarks  on  the   Appointment  of  Steno- 
graphers. 60,  62,  63,  65 
on  the  Appointment  of  a  Door-keeper 

to  the  Ladies'  Gallery,  66 

on  the  Duties  of  Committees,  99 

on  the  Executive  Department,   187, 
296,  297,  320,  322,  323,  327,  337, 

339,  343,,  350,  354 
on  the  Apportionment,  Election  and 
Tenure  of  Office  of  the  Legislature, 
.  401,  410,  417,  423,  425,  428,  429, 
430,  435,  436,  446,  447,  448,  452,       ft 
468,  469,  476,  478,  1068 
on   the  Rights  and  Privileges  of  the 

Citizen,  539,  540,  542,  551,  721 

on  the  Judiciary  Department,   698, 
765,  769,  776,  779,  780,  785,  786, 

797,  798,  799,  821,  828,  836,  838,  839 
on  the  Canals  and  Finances,  933 

Correcting  a  Reporter's  Error,  843 

on  Local  Officers,  1008,  1010,  1013 

-on  the  Elective  Franchise,        1036,  1066 


1129 


on  Future  Amendments  to  the  Con- 
stitution, 

D 


1038 


DANA,  Mr.  a  delegate  from  Madison. 
Remarks  on   the  manner  of  Committees  i. 

Reporting,  133 

on  the  Executive  Department,    166, 
167,  16S,  170,  284,  303,  307,  320, 

340,  343,  353 

on  the  Apportionment,  Election  and 
Tenure  of  Office  of  the  Legislature, 

381,  467 

on  the  Article  relative  to  State  Offi- 
cers, 501 
on  the  Judiciary  System, '555,  767, 804,  837 
on  the  Canals  and  Finances,                  937 
on  Incorporations,  other  than  Bank- 
ing and  Municipal,             973,  979,  980 
on  Local  Officers,                          1008,  1011 
on  Incorporations,  other  than  Bank- 
ing and  Municipal,                             1021 
on    the    Elective    Franchise,    1029, 

1034, 1043,  1045, 1065 
on  Future  Amendments  to  .the  Con- 
stitution, 1038 
on  the  Final  Vote  on  the  Constitution,  10S1 
DANFORTH,  Mr.  a  delegate  from  Jefferson. 
Remarks  on  the  Arrangement  of  Commit- 
tees, and  the  Order  of  Business,  37 
on  the  Executive  Department,        288,  320 
on  the  Apportionment,  Election  and 
Tenure  of  Office  of  the  Legislature, 

435,  436,  473 
on  the  Article  relative  to  the  State    » 

Officers,  503,  520 

on  the  Rights  and  Privileges  of  the 

Citizen,  551, 552 

on  the  Canals  and  Finances,  848 

on  Local  Officers,  1010 

DODD,  Mr.  a  delegate  from  Washington. 
Remarks  on  the  Executive  Department, 

171,  476 

on  the  Elective  Franchise,  1033 

DORLON,  Mr.  a  delegate  from  Greene. 
Presents  a  Substitute  for  the  first  Section 
of  Mr.  BOUCK'S  Report  on  the  Elec- 
tive Franchise,  309 
DOCUMENTS    FOR  THE  NEW  YORK 

CITY  CONVENTION. 

Resolution  of  Mr.  SHEPARD,  289 

DEBT  CREATING  POWER  OF  THE  LE- 
GISLATURE. 

Resolution  of  Mr.  WATERBURY,  128 

DISTRICT  ATTORNIES. 

Resolution  of  Mr.  HAWLEY,  100 

THEIR  FEES. 

Resolution  or  Mr.  BRUCE,  86 

E 
EDUCATION. 

Report  thereon  by  Mr.  NICOLL,  388 

Resolution  of  Mr.  BOWDISH,  1022.  1074 

EDUCATIONAL  FUNDS. 

Resolution  of  Mr.  R.  CAMPBELL,  104 

ELECTIVE  FRANCHISE. 

Resolution  of  Mr.  STOW,  95 

Report  of  Mr.  BOUCK,  901 

Report  of  Mr.  DORLON,  309 

Discussion  thereon,         1013,  1026, 1042,  1065 
Resolution.of  Mr.  BRUCE,  934 

116 


ELECTION  DISTRICTS. 

Resolution  of  Mr.  BAKER,  97 

Resolution  of  Mr.  MORRIS,  si 

ELECTION  OF  JUDGES  BY  THE  PEO- 
PLE. 

Resolution  of  Mr.  W.  TAYLOR,      125 
COUNTY  OFFICERS  BY  THE  PEOPLE. 

Resolution  of  Mr.  CLYDE,  163 

OF  U.  S.  SENATORS. 

Resolution  of  Mr.  RUGGLES,  267 

EMISSION  OF  BILLS  OF  CREDIT. 

Resolution  of  Mr.  KENNEDY,  109 

ERECTION  AND  DIVISION  OF  COUN- 
TIES. 

Resolution  of  Mr.  STOW,  117 

ESPECIAL  PRIVILEGES. 

Resolution  of  Mr.  ST.  JOHN,  117 

EXECUTIVE  DEPARTMENT. 

Report  thereon,  1Q7 

Discussion  thereon,  152,  163, 
167,  177,  186,  197,  209,  227, 
248,  268,  284,  290,  298,  310, 

323,  338,  349,  354,  372,  1073 
ARTICLE. 

As  first  adopted,  371 

PATRONAGE. 

Resolution  of  Mr.  KIRKLAND,    51,  52 
EXEMPTION    OF    PROPERTY    FROM 
DEBT. 

Resolution  of  Mr.  STOW,  935 

EXECUTION. 

Resolution  of  Mr.  TOWNSEND,        128 
OF  NON- VOTERS    FROM  MILITIA 
DUTY. 

Resolution  of  Mr.  DANFORTH,       107 
EXPENSES  OF  GOVERNMENT. 

Resolution  of  Mr.  STOW,  735 

EXPIRATION  OF  OFFICE. 
Resolution  of  Mr.  RUSSELL,  1Q26 

F 

FEUDAL  TENURES. 

Resolution  of  Mr.  CLYDE,  1026 

Discussion  of  Question,  1Q51    1Q62 

FLANDERS,  Mr.  a  delegate  from  Franklin. 
Remarks  on  the  Executive  Department, 

290,  349 
on  the  Apportionment,  Election  and 

Tenure  of  Office  of  the  Legislature,  449 
on  the  Judiciary  Article,  557,  630,  785 
on  Banking,  &c.,  994 

on  Elective  Franchise,  10Q& 

FORSYTH,  Mr.  a  delegate  from  Ulster. 
Remarks  on  the  Executive  Department, 

290,  349 
on  the  Apportionment,  Election  and 

Tenure  of  Office  of  the  Legislature,  449 
on  the  Judiciary  Article,  557,  630,  785 
on  Banking,  &c.,  994 

on  Local  Officers,  1007,  1008 

on  Incorporations,   other  than  Bank- 
ing and  Municipal,  1022 
on  the  Militia, 
FOREIGN  WITNESSES— RIGHTS  OF. 

Resolution  of  Mr.  KENNEDY,  gi 

FREE  SCHOOLS. 

Resolution  of  Mr.  MURPHY,  40 

FREEDOM  OF  CONSCIENCE. 

Resolution  of  Mr.  CORNELL,  104 

FUTURE  AMENDMENTS  TO  THE 
CONSTITUTION. 


1130 


115 
"772 

103S,  1077 
833 


056 
16GO 


Resolution  of  Mr.  MANN, 

Report  of  Mr.  MARVIN, 

Discussion  thereof, 

Resolution  of  Mr.  CHATTIER, 

G 
GRAHAM,  Mr.  a  delegate  from  Ulster. 

Remarks  on  the  Canals  and  Finances, 
GREENE.  Mr.  a  delegate  from  Jefferson 

Remarks  on  the  Elective  Franchise, 

H 
HARRIS,  Mr.  a  delegate  from  Albany. 

Remarks  on  the  Executive 

on  the  Apportionment,  Election  and 
Tenure  of  Office  of  the  Legislature, 
377  392,  422,  427,  428,  434,  435, 
444  446,  451,  453,  455,  466,  475,476 

on  the  Article  relative  to  State  Offi- 
cers,  '  ^ 

on  the  Rights  and  Privileges  of  the 
Citizen,  542,  543,  550,  1054,  1055 

on  the  Judiciary  Article,  639,  643, 
752,758,757,760,  761,  767,  768, 
780,  783,  784,  785,  796,  797,  802, 
805,806,813,  814,  815,  817,  828 

834, 84C 

on  the  Canals  and  Finances,          927,  952 

on  Incorporations  other  than  Banking    ^ 
and  Municipal, 

on  Local  Officers,  10 


on  Mv.  BOWDHH'S   Resolution   rela- 

tive to  Education, 
„„  the  Right,  of  Warned 


on  the  Elective  Franchise,         1044,  1045 
2  Feudal  Tenures,  1051,  1052,  1053, 


1062, 

on  the  Equalization  of  Taxation ,          1069 
HARRISON,  Mr.  adelegatefrom  Richmond. 
Remarks  on  his  Resolution  relative  to  the 

Naturalization  Laws, 
on  the  Executive   Department,  177, 

296,  305,339,340,342,346 
on  the  Apportionment,  Election  and 
Tenure  of  Office  of  the  Legislature, 
415,  421,  422,  443,449,450,458, 

467, 1067 

on  the  Article  relative  to  the  State 
Officers, 

the  Rights  and  Privileges  oi  the 
T  itLn*  ^42,  547,  548,  549 


on 


Citizen, 
on  the  Judiciary  Article,  759,  752, 


on  the  Canals  and  Finances, 

on  Local  Officers, 

on  the  Elective  Franchise, 


769, 1071 
879 
1008 

1034, 103( 

,  Mr.  a  delegate  from  Oswego. 
Remarks  on  the  Executive  Department, 
on  the  Article  in  relation  to  the  State 

Officers, 
on  the  Rights  and  Privileges  of  the 

Citizen,  ;>4b>  7o 

on  his  proposition  relative  to  the  Os- 

\vego  Canal, 

H  AWLEY  Mr.  a  delegate  from  Cattaraugus. 
Remarks  on  the  Arrangement  of  Commit- 
tees and  the  Order  of  Business, 
on  the  Executive  Department, 


35; 


49! 


104 


on  the  Apportionment,  Election  and 
Tenure  of  Office  of  the  Legislature, 

.   408,458- 
on  the  Article  in  relation  to  the  State 

Officers,  533 

on  the  Judiciary  Article,  764,  767, 

71,>V>,  SOO,  822,  825,  826,  836 
on  the  Canals  and  Finances,  848, 854, 

874,  918 
on  Incorporations  other  than  Banking 

and  Municipal,  957 

on  Local  Officers,  1009,  1010 

HOFFMAN,  Mr.  a  delegate  from  Herkimer. 
Remarks  on  the  Arrangement  of  L  ommit- 
tees  and  the  Order  of  Business,  32, 

33,  41,  45,  46,  53,  54,  57,  68,  74r  532 
on  the  Executive  Department,  313, 
318,  324,  325,  350,  351,  353,  354, 

365,  370 
on  the  presentation  of  his  Report  on 

the  Canals  and  Finances,  461 

on  the  Article  relative  to  the  State 

Officers,  497,  499,  500,  505,  527 

on  the  Rights  and  Privileges  of  the 

Citizen,  529 

on  the  Judiciary  Article,  556,  557, 
670,  755,  759,  763,  777,  778,  780, 
,794,  803,  807,  809,  817,  825,  828, 

831, 1071 

on  the  Canals  and  Finances,  843,  849, 
850,  851,  854,  857,  867,  873,  874, 
876,  877,  878,  880,  893,909,911, 
912,  936,  939,  940,  941,  942,  943, 

946,  947,  950,  957,  1083 
on  Future  Amendments  to  the  Con- 
stitution, 1038 
on  Feudal  Tenures,                               1053 
on  the  Election,  Apportionment,  &c. 

of  the  Legislature,  106S 

on  Education,  1074 

on  Ordering   Constitution   to  be  En- 
grossed, 1079 
HUNT,  Mr.  a  delegate  from  New- York. 
Remarks  on  Mr.  HARRISON'S  Resolution 

on  the  Naturalization  Laws,  81 

Resolution  and  Remarks  on  a  Jury  System,    111 
on  the  Executive   Department,  169, 

170,  186,  227,  300,  339 
on  the   Apportionment,  Election  and 
Tenure  of  Office  of  the  Legislature, 

419,  443,  445,  455,  468 
on  the  Article  in  relation  to  the  State 

Officers,  541 

on  the  Judiciary  Article,   559,  751, 

762,  773,  779,  794,  796,  804,  813,  814 
on  the  Canals  and  Finances,  920 

on  Incorporations  other  than  Banking 

and  Municipal,  971,  983 

on  Banks  and  Banking, 
on  the  Elective  Franchise, 
on  the  Rights  of  Married  Women,        1042 
HUNTINGTON,  E.   Mr.   a  delegate  from 

Oneida. 
Remarks  on  the  Article  in  relation  to  the 

State  Officers,  507,  524 

on  the  Canals  and  Finances,          945,  946 
on  Final  Vote  on  Constitution,  1082 

HUNTINGTON,  A.  Mr.  a  delegate  from 

Suffolk.  . 
Remarks  on  the  Executive  Department,      328 


1131 


HUTCHINSON,  Mr.  a  delegate  from  Fulton 

and  Hamilton. 

Remarks  on  the  Apportionment  Election 
and  Tenure  of  Office  of  the  Legisla- 
ture, 428 

INCORPORATIONS— MUNICIPAL. 

He-solution  of  Mr.  MURPHY,  41 

Discussion  of  Question,       1054,  1072 
Minority  Report  of  Mr.  ALLEN,     734 
OTHER  THAN  BANKING  AND  MU- 
NICIPAL. 

Report  of  Mr.  LQOMIS,  221 

Discussion    thereon,    061,    981, 

960,  1005,  1013 
RAILWAY. 

Plan  presented  by  Mr.  LOOMIS,       104 
Mr.  MURPHY'S  Resolution,  735 

INVITATION. 

For  Celebration  of  Fourth  of  July,  151,  106,  221 
INDIAN  SUFFRAGE. 

Resolution  of  Mr.  RICHMOND,  94 

INSPECTION  LAWS. 

Discussion  thereon,  1061 


JONES,  Mr.  a  delegate  from  New- York, 
Remarks  on  the  Arrangement  of  Commit- 
tees and  the  Order  of  Business,  27, 

28,40 

and  Report  from  the  Committee  of  17 
on  the  Order  of  Business,  42,  53, 

69,  71,  78,  79 
on  the  Executive  Department,  305, 

324,  343 

on  the  Apportionment,  Election  and 
Tenuro  of  Office  of  the  Legislature, 

401,  413,  426,  429,  441,  478 
on  the  Article  relative  to  State  Offi- 
cers, 516 
on  the  Militia,  1049 
on  Banking,  &c.,  992 
on  Local  Officers,  1011 
on  Incorporations  other  than  Banking 

and  Municipal,  1022 

on  the  Elective  Franchise,  1036, 1045, 

1065 

on  Final  Vote  on  Constitution,  1080 

JORDAN,  Mr.  a  delegate  from  Columbia. 

Remarks  on  Codifying  the  Laws,  110 

on  Royal  Grants,  &c.,  118 

on  the  Manner  of  Committees  Report- 
ing, 135 
on  the  Executive  Department,  177, 
.   301,  300,  307,  312,  314,  315, 

317,  343,  345,  354,  358 
on  the  Apportionment,  Election  and 
Tenure  of  Office  of  the  Legislature, 

3M»,  391,  393,  419,  428,  430,  431 
on  the  Article  Relative  to  State  Offi- 
cers, 504,  510,  521 
on  the  Order  of  Business,  527,  531 
on  the  Rights  and  Privileges  of  the 

Citizen,  543,  547,  54<J,  550,  1051,  1052 
on  the  Judiciary  Article,  557,  .V>^, 
fxio,  :>;u,  5VJ,  619,  641,  652,  655, 
684,  |-,«>>5,  703,  734,  752,  764,  765, 
766,  767,  768,  772,  820,  821,  824, 
825,  827,  828,  830,  832,  834,  835, 

836,  837,  838,  839,  840 


on  the  Canals  and  Finances,  851,  865,  874 
on  Incorporations  other  than  Banking 
and  Municipal,  966,  967,  974,  980, 

981,  983,  1005 

on  Banking,  &c.,  995,  999 

JUDICIARY. 

Resolution  of  Mr.  BASCOM,  114 

EXPENSES  THEREOF. 

Report  of  Mr.  RHOADES.  106 

Resolution  of  Mr.  PERKINS,  776 

PLAN  or  A  SYSTEM — 

Presented  by  Mr.  TALLMADGE»  102 

SHEPARD,  106 

HARRISON,  117 

SHAW,  139 

WITBECK,  139 

O' CONOR,  100 

TAGGART,  150,  569 

BOUCK,  309 

WORDEN,  529 

MARVIN,  590 

ST.  JOHN,  614 

Report  thereon  by  Mr.  RUGGLES,  481 

O'CONOR,  485 

KlRKLAND,  487 

BASCOM,  489 

Discussion  of  Reports,  534,  567,  582,  615, 
<.>:}">,  646,  660,  670,  682,  686,  709, 
729,  735,  749,  759,  763,  766,  772, 

782,  834,  840,  1071 
JUDICIAL  DISTRICTS. 

Resolution  of  Mr.  GARDINER,  100 

of  Mr.  TALLMADGE,  103 

JUDICIAL  OFFICERS-- 
AppoiNTMENT  AND  FEES. 

Resolution  of  Mr.  KIRKLAND,          85 
JUDGMENTS  AND  APPEALS. 

Proposition  of  Mr.  KEMBLE,  749 

JUDGES — APPOINTMENT  THEREOF* 

Resolution  of  Mr.  STOW,  140 

JURORS— DUTIES  OF. 

Resolution  of  Mr.  BERGEN,  85 

PETIT. 
Resolution  of  Mr.  HART,  85 


KEMBLE,  Mr.  a  delegate  from  Putnam, 
Remarks  on  the  Apportionment,  Election 
and  Tenure  of  Office  of  the  Legisla- 
ture, 424 
on  the  Article  relative  to  State  Of- 
ficers,                                          525,  526 
on  the  Judiciary  Article,                801,  820 
KENNEDY,  Mr.  a  delegate  from  N.  York. 
Remarks  on  the  Executive   Department, 
408,  412,  415,  434,  445,  447,  449, 

459,  464,  465,  467,  468,  480 
on  the  Rights   and  Privileges  of  the 

Citizen,  453 

Correction  of  an  Error  of  Reporter,       453 
on  the  Article  in  relation  to  the  State 

Officers,  509 

on  Local  Officers,  1009 

on  the  Elective  Franchise,  1026, 1035, 

1036,  1045 

on  the  Rights  of  Married  Women,        1042 
on  Viva  Voce  Voting,  1078 

KINGSLEY,  Mr.  a  delegate  from  Onondaga. 
Remarks  on  the  Article  relative  to  the 

State  Officers,  £3» 


1132 


on  the  Judiciary  Article,  793 

KIRKLAND,  Mr.  a  delegate  from  Oneida. 
Remarks  on  the  Arrangement  of  Commit- 
tees and  the  Order  of  Business,  70, 

348,  528 

on  Mr.  HARRISON'S  Resolution  rela- 
tive to  the  Naturalization  Laws,          82 
on  the  Arrangement  of  the  Amend- 
ments, 126,  127 
on  the  Executive  Department,  153, 

155,  163,  235,  321.  351,  358 

on  the  Apportionment,  Election  and 

Tenure  ot  Office  of  the  Legislature, 

388,    397,  411,  424,425,428,429, 

430,  465,  444,  446,  454,  461,  463, 

466,  472 
on  the  presentation  of  his  Minority 

Report  on  the  Judiciary,  487 

on  the  Article  relative  to  the   State 

Officers,  518,  526,  527,  536,  537 
on  the   Rights  and   Privileges  of  the 

Citizen,  542,  547,  550,  1051, 1056 

on  the   Judiciary  Article,  557,  558, 

575,  588,  619,  642,  683,  740,  759, 

762,  765,  770,  771,  772,  773,  777, 

779,  780,  782,  788,  789,  790,  799, 

800,  826,  827,  835 
on  the  Canals  and  Finances,  872,  876, 

881,  925,  928,  932,  941,  942,  945 
on  the.  Proposition  of  Mr.  J.  J.  TAY- 
LOR relative  to  the  Chenango  Canal,    961 
on  Incorporations  other  than  Bank- 
ing and  Municipal,  966,  970,  981, 

983,  1021 

on  Banking,  &c.,  997,  998,  999 

on  Local  Officers,  1007,1008,101] 

on  the  Elective  Franchise,  1019, 1033, 

1035 

on  Future  Amendments  to  the  Con- 
stitution, 1038 
on  the  Rights  of  Married  Women,        1042 
on  Feudal  Tenures,  1053 
on  the  Removal  of  Officials,                  1077 
on  the  Question  of  Separate  Submis- 
sion,      -                                               1079 


LAND  TENURES. 

Report  of  Committee  by  Mr.  HARRIS,          879 
LAW  OF  LIBEL. 

Resolution  oi  Mr.  O'CoNOR,  94 

Discussion  of  Question,  1061 

LEGISLATURE-APPORTIONMENT,  ELEC- 
TION AND  TENURE  OF  OFFICE. 
Report  thereon  through  Mr.  W. 

W.  TAYLOR,  265 

Discussion  on  the  Report,   373, 
388,  395,  401,  4:24,  4:2!.),  443, 

463,  470,  479,  1067 
ORGANIZATION  THEREOF. 

Report  of  Mr.  STETSON,  935 

PASSAGE  OF  BILLS  THEREIN. 
Resolution  of  Mr.  W.  TAYLOR, 

267,  283 

PAY  OF  THE  MEMBERS  THEREOF. 
Resolution  of  Mr.  WHITE,  232 

Resolution  of  Mr.  TOWNSEND,        lOu 
PAY  OF  THE  OFFICERS  THEREOF. 

Resolution  of  Mr.  MARVIN,          1026 
DURATION  OF  THE  SESSION. 


Resolution  of  Mr.  J.  J.  TAYLOR,    100 
of  Mr.  WHITE,  227 

of  Mr.  CANDEE,  ng 

LEGISLATION  MAJORITY. 

Resolution  of  Mr.  MANN,  372 

LEGISLATION  RETROSPECTIVE. 

Resolution  of  Mr.  RHOADES,  100 

LITERATURE  FUND. 

Resolution  of  Mr.  NICOLL,  267 

LIMITATION—OF  THE  POWERS  OF  JUDGES. 

Resolution  of  Mr.  MURPHY,        107 
OF  LANDED  PROPERTY. 

Resolution  of  Mr.  WILLARD,      185 
LOANS — OF  THE  CREDIT  OF  THE  STATE. 

Resolution  of  Mr.  RICHMOND,       54 
To  COLLEGES,  &c. 

Resolution  of  Mr.  SWACKHAMER.     372 
LOCAL  OFFICERS. 

Report,  thereon  by  Mr.  ANGEL,  310 

Discussion  thereon,  1006,  1010,  1020,  1076 
Resolution  of  Mr.  ANGEL,  95 

LOOMIS,  Mr.  a  delegate  from  Herkimer. 
Remarks  on  the  Arrangement  of  Commit- 
tees and  the  Order  of  Business,  24, 
27,  28,  29,  38,  39,43,  73,  74,  75,  76, 

79,  531 

on  the  Resolution  for  the   Appoint- 
ment of  Stenographers,  64 
on  the  Locality  of  Taxation,                   120 
on  Chancery  Sales,                                  125 
on  the  Manner  of  Committees' Report- 
ing,                                                130,  147 
on  the  Executive   Department,  167, 

284,  293,  327,  329,  344,  345 
on  the  Presentation  of  his  Report  on 
Incorporations  other  than  Banking 
and  Municipal,  221 

on  Presenting  his  Report  on  the  Or- 
der of  Business,  323,  347 
on  the  Apportionment,  Election  and 
Tenure  of  Office  of  the  Legislature, 
386,  401,  402,  420,  429,  433,  444, 

465,  473 
on  the  Presentation  of  the  Judiciary 

Reports,  491 

on  the   Report  relative  to  the  State 
Officers,   507,  508,  517,  523,  525, 

535, 537 
on  the  Rights  and  Privileges  of  the 

Citizen,  539,  541,  542,  548,  1055,  1056 
on  the  Judiciary  Article,  557,  559, 
590,  637,  639,  654,  684,  710,  734, 
752,  761,  767,  768,  770,  773,  782, 
783,  785,  786,  794,  796,  798,  801, 
808,811,812,  813,  819,  820,  821, 
822,  823,  824,  825,  fe2r,,  829,  830, 

'831,  S34,  835,  836,  1071 
on  the  Canals  and  Finances,  649,  895, 

909,  910,  928,  933,  944,  952 
on  Incorporations  other  than  Banking 
and  Municipal,  962,  90S,  969,  973, 
974,  977,  979,  981,  982,  983,  984, 

1005,  1006, 1012,  1013 
on  Future  Amendments  to  the  Con- 
stitution, 1038 
on  the   Rights   of  Married   Women, 

1042,  1060 

on  the  Elective  Franchise,  1044 

on  the  Equalization  of  Taxation,          1069 
on  Feudal  Tenures.  1052 


1133 


on  Mr.  HART'S  Resolution  relative  to 
Oswego  Canal,  1050 

M 

MANN,  Mr.  a  delegate  from  New- York. 
Remarks  on  the  Arrangement  of  Commit- 
tees and  the  Order  of  Business,  37, 

528,  530 
on  the  Executive  Department,  265, 

:{i  is,  317,  3-2-2,  336,  342,  360,  371 
on  the  Apportionment,  Election  and 
Tenure  of  Office   of  the  Legisla- 
ture, 425,  430 
on  the  Article  relative  to  the   State 

Officers,  51 

on  the  Rights  and   Privileges  of  the 

Citizen,  541 

on  the  Judiciary  Article,  619,  738, 
752,  762,  763,  766,  772,  773,  781, 
784,  792,  793,  794,  797,  799,  800, 

820,  826,  834 

on  the  Canals  and  Finances,  935 

on  the   Compensation  of  Legislative 

Clerks,  959 

on  Incorporations  other  than  Banking 

and  Municipal,  975 

on  Banking,  &c.  993 

on  Local  Officers,  1008 

MARVIN,  Mr.  a  delegate  from  Chautauque. 
Remarks  on  the  Arrangement  of  Commit- 
tees and  the  Order  of  Business,  51, 

72,73 

on  the   Manner  of  Committees  Re- 
porting, 136 
on  the  Executive  Department,       168,  203 
on  the  Taxation  of  Mortgages,  176 
on  the  Apportionment,  Election  and 
Tenure  of  Office  of  the  Legislature, 
391,  297,  427,  432,  437,  457,  458, 

461,  463,  464,  474,  1067 
on  th  >  Article  in  Relation  to  the  State 
Officers,   497,  508,  509,  517,  518, 

519,  534,  536 
on  the  Rights  and  Privileges  of  the 

Citizen,  548 

on  the   Judiciary  Article,   590,  619,       ' 
639,  682,  683,  703,  725,  734,  759, 
766,  770,  783,  786,  797,  798,  837, 

867,  868,  1071 

on  the  Canals  and  Finances,  878,  909, 
910,  911,  929,  937,  938,  939,  942, 

952,  1072 
on  Incorporations  other  than  Banking 

and  Municipal,  976,  977,  981,  982,  1006 
on  Banking,  &c.  999,  iQOO 

on  Local  Officers,  1007,  1008,  1013 

on  the  Elective  Franchise,          1037,  1066 
on  Mr  MAXWELL'S  Proposition  rela- 
tive to  the  lateral  Canals,  1038 
on  Future  Amendments  to  the  Con- 
stitution, 1038 
on  the  Rights  of  Married  Women,*      1042 
on  the  Final  Vote  on  the  Constitution,  1081 
MAXWELL,  Mr.  a  delegate  from  Chemung. 
Remarks  on  the  Apportionment,  Election 
and  Tenure  of  Office  of  the  Legisla- 
ture, 4Gi 
on  his  Proposition  relative  to  the  lat- 
eral Canals,                                          1037 
MAYOR  OF  NEW- YORK— TERM  OF  OF- 
FICE. 


Resolution  of  Mr.  CORNELL,  109 

MILLER,  Mr.  a  delegate  from  Cortland. 

Remarks  on  the  Executive  Department,      343 
on  the  Apportionment,  Election  and 
Tenure  of  Office  of  the  Legislature, 

425,  469 

on  Tribunals  of  Conciliation,  833,  836 
MISCELLANEOUS  ARTICLE,  1077,  1078 
MILITIA. 

Resolution  of  Mr.  BASCOM,  114 

Report  thereon  by  Mr.  WARD,  443 

Discussion  thereof,  1049 

MORRIS,  Mr.  a  delegate  from  New- York. 
Remarks  on  the  Arrangement  of  Commit- 
tees and  the  Order  of  Business,  50, 

73,  78,  533 
on  his  Resolution  as  to  the  Locality 

of  Taxation,  119,  122 

on  his  Resolution  as  to  the  Arrange- 
ment of  the  Amendments,  126 
on  the  Executive   Department,  152, 
169,  171,  181,  271,  284,  286,  288, 
290,  295,  298,  300,  308,  311,  320, 
321,  322,  323,  325,  337,  350,  352,  356 
on  Royal  Grants,  &c.,  163 
on  the  Apportionment,  Election  and 
Tenure  of  Office  of  the  Legislature, 

389,  411,  413,  461,  476 
on  the  Article  relative  to  the  State 

Officers,  499,  535 

on  the   Judiciary  Article,   646,  756, 
760,  783,  786,  787,  796,  817,  818, 

819,  828,  949 
on  Incorporations  other  than  Banking 

and  Municipal,  973,  974,  1021 

on  Banking,  974,  995 

on  the  Elective  Franchise,  1037, 1044, 

1066 

f        on  Mr.  MAXWELL'S  Resolution  rela- 
tive to  the  lateral  Canals,  1038 
on  the  Rights  of  Married  Women,        1058 
on  Feudal  Tenures,  1063 
on  the  Final  Vote  on  the  Constitution,  1061 
MUNICIPAL  CORPORATIONS. 

Reports  in  relation  thereto  by  Mr.  MUR- 
PHY, 463 
MURPHY,  Mr.  a  delegate  from  Kings. 
Remarks  on  Municipal  Corporations,  41, 

463,  467,  469,  473,  961,  1072 
on  the  Arrangement  of  Committees 

and  the  Order  of  Business,  71 

on  Mr.  HARRISON'S  Resolution  in  re- 

tion  to  the  Naturalization  Laws,    83,  84 
on  his  own  Resolution  in  relation  to 

Royal  Grants,  &c.,       117,  139,  160,  161 
on  the  Locality  of  Taxation,  119,  123 

on  the  Executive   Department,    172, 

209,  291,  318,  326,  340,  358 
on  his  Resolution  relative   to  Bank 

Stocks,  289 

on  the  Apportionment,  Election  and 
Tenure  of  Office  of  the  Legislature, 

386,  401,  417,  419,  4J6,  449,  450,  458 
on  the  Article  in  relation  to  the  State 

Officers,         509,' 510,  511,  514,  515,  614 
on  the   Judiciary   Article,    77.'J,  77i>, 
777,  780,  784,  785,  7U2,  T'.Ki,  7<J-'>, 

801,  806,  819,  820,  822,  823,  828 
on  the  Canals  and  Finances,  913,  952, 

953,  954,  955 


1134 


on  Incorporations  other  than  Banking 

and  Municipal,  984,  1005,  1006 

on  Banking,  &c.,  994,  995 

on  the  Rights  and   Privileges  of  the 

Citizen,  1054,  1055,  1056,  1052,  1064 
on  the  Rights  of  Married  Women,  1059 
on  Feudal  Tenures,  1053 

on  the  Equalization  of  Taxation,          1069 
on  the  Final  Vote  on  the  Constitution,  1080 

N 

NATURALIZATION  LAWS. 

Resolution  of  Mr.  HARRISON,  81 

of  Mr.  WORDEN,  105 

NELLIS,  Mr.  a  delegate  from  Montgomery. 
Remarks  on  the  Executive  Department,      311 
on  the  Rights  of  Married  Women,        1060 
NEW  COUNTIES— FORMATION  THEREOF. 

Resolution  of  Mr.  BRUNDAGE,  984,  1000 

NEGRO  SUFFRAGE. 

Resolution  oi  Mr.  YOUNG,  96 

NICHOLAS,  Mr.  a  delegate  from  Ontario. 
Remarks  on  the  Arrangement  of  Commit- 
tees and  the  Order  of  Business,      60,  70 
on  the  Manner  of  Committees  Report- 
ing, 137 
on  the  Executive  Department,  179, 
186,  263,  294,  295,  306,  308,  317, 

319,  322,  355,  360,  368 
on  the  Apportionment,  Election  and 
Tenure  of  Office  of  the  Legislature, 
382,  391,  401,  404,  422,  429,  436, 

457,  473 
on  the  Article  relative  to  the  State 

Officers,  497,  505,  506,  507,  509,  526 
on  the  Rights  and  Privileges  of  the 

Citizen,  542 

on  the  Judiciary  Article,  536,   684, 

734,  755,  758,  763,  799,  800,  823 
on  the  Canals  and  Finances,  930 

on  Feudal  Tenures,  1052,  1060 

on  Incorporations  other  than  Banking 

and  Municipal,  983 

on  the  Militia,  1049 

on  Banking,  &c.,  997,  999,  100( 

on  Local  Officers,  1007,  1009 

on  the  Elective  Franchise,  1035 

NICOLL,  Mr.  a  delegate  from  New- York. 
Remarks  on  the  Arrangement  of  Commit- 
tees and  the  Order  of  Business,      73,78 
on  Codifying  the  Laws,  109,  11 

on  the  Titles  of  Acts,  177 

on  the  Executive  Department,  199, 

324,  325,  327,  353,  36( 
on  the  Apportionment,  Election  and 
Tenure  of  Office  of  the  Legislature. 
377,  407,  415,  428,  431,  443,  466, 

474,  48( 
on  the  Presentation  of  his  Report  on 

Education,  38 

on  the  Rights  and  Privileges  of  the 

Citizen,  453,  1051,  106 

on  the  Article  relative  to  the  State  Of- 
ficers, 51 
on  the  Judiciary  Article,   600,   656, 
752,  760,  761",  762,  768,  770,  775, 
779,  7bJ,  7VJ,  7M,  793,  794,  795, 

798,799,800,838,83 
on  the  Canals  and  Finances,  932,  942,  94 
on  Incorporations  other  than  Banking 


and  Municipal,  962,  979 

on  Mr,   BOWDISH'S    Resolution  rela- 
tive to  Education,  1026 
on  the  Elective  Franchise,  1039 
on  Feudal  Tenures,            1051,  1052,  1063 
on  Education,                                1074,  1075 
ON  IMPRISONMENT  FOR  DEBT. 
Resolution  of  Mr.  MORRIS,  96 
of  Mr.  TALLMADGE,.                               102 
STON  RESIDENT  LANDS. 
Resolution  of  Mr.  HYDE,                                 109 

O 

)ATHS  AND  AFFIRMATIONS. 
Report  of  the  Committee  thereon.       894,  1077 
'CONOR,  Mr.  a  delegate  from  New  York. 
Remarks  on  the  Arrangement  of  Commit- 
tees, and  the  Order  of  Business,  31, 

56,  57,  60,  74 

on  Mr.  HARRISON'S  Resolution,  rela- 
tive to  the  Naturalization  Laws,          81 
on  the   Ex?cutive  Department,  200, 

268,  297,  300,  337,  340,  350,  358,  359 
on  the  Apportionment,  Election  and 
Tenure  of  Office  of  the  Legislature, 

384, 441,  455, 458,  461,  466,  467,  477 
on  the   Presentation  of  the  Minority 

Report  on  the  Judiciary,  485 

on  the  Article  in  relation  to  the  State 

Officers,  314,515 

on  the  Rights  and  Privileges  of  the 
Citizen,    540,  542,  543,  545,  546, 

548,  550,  1050,  1054 
on  the  Judiciary  Article,  555,  556, 
557,  558,  560,  642,  652,  682,  684, 
692,  753,  762,  763,  765,  779,  782, 
783,  784,  785,  804,  805,  813,  814, 
818,  825,  828,  831,  832,  834,  835, 

836,837,839,840 

on  the  Canals  and  Finances,  932,  943 

on  Incorporations,   other  than  Bank- 

and  Municipal,        971,  973,  1006,  1020 
on  Local  Officers,  1012 

on   Mr.  BOWDISH'S  Resolution  rela- 
tive to  Education,  1026 
on  Future  Amendments  to  the  Con- 
stitution, 1038 
on  the  Rights  of  Married  Women, 

1038,  1056 

on  Education,  1075 

on    the    Elective    Franchise,    1044, 

1048,  1065, 1067 

on  Separate  Submission,  1074 

on  the  Final  Vote  on  the  Constitu- 
tion, 1080 
ORIGIN  OF  GOVERNMENT. 
Resolution  of  Mr.  CORNELL,  111 
Resolution  of  Mr.  JONES,  24 
ORDER  OF  BUSINESS. 

Resolution  of  Mr.  LOOMIS,  347 

Report  of  Mr.  LOOMIS, 

Which  Report  first  to  be  considered,     527,  530 
Resolution  of  Mr.  JONES,  1010,  1040 

ORGANIZATION    OF    THE    CONVEN- 
TION, &c.,  17,  18 
OFFICERS  THEREOF  APPOINTED,  18 


PARDONING  POWER. 

Resolution  of  Mr.  SHEPARD, 
Resolution  of  Mr.  CONELY, 


118 
105 


1135 


PATTERSON,  Mr.  a  delegate   from  Chau- 

tauque. 

Remarks  on  the  Arrangement  of  Commit- 
tees, and  the  Order  of  Business,  It',, 

49,  53,  72 
on  the  Appointment  of  a  Door-keeper, 

for  the  Ladies'  Gallery,  65,  GO 

on   Mr.    HARRISON'S   Resolution   on 

Naturalization  haws,  82,  85 

on  the  Separation  of  Banks  and  State,    125 
on  the  Election  of  Judges,  141 

on  the  Executive  Department,  172, 
175,  213,  260,  286,  296,  297,  318, 

324,  325,  336,  349,  353,  358,  364 
on  the  Presentation  of  the  Report  re- 
lative to  Banks  and  Banking,  185 
on  the  Apportionment,  Election  and 
Tenure  of  Office  of  the  Legislature, 

401,  409,  430,  466,  468,  469 
on  the  Article  relative  to  the  State 
Officers,   49S,  500,  504,  508,  511, 

514,  515,  534,  535,  537 
on"'  the  Rights  and  Privileges  of  the 

Citizen,  551,  1054 

on  the  Judiciary  Article,  558,  642, 
652,  §82,  8fii5,  r>s<i,  75s,  770,  771, 
779,  7.sO,  7s4,  7.s5,  786,  787,  794, 
800,  801,803,  810,  813,817,  820, 

,V21,  826,  828,  833,  839 
on  the  Canals  and  Finances,  866,  875. 

.  ^77,  |78,  911,  931,  940,  945,  946 
on.  Incorporations,  other  than  Bank- 
ing and  Municipal,     974,  979,  980,  1021 
on  Banks  and  Banking,  996,  997,  99£ 

on  Local  Officers,    1007,  1008,  1010, 

1011,  1011 
on  Mr.  BOWDISH'S  Resolution  relative 

to  Education,  102i 

on  the  Elective  Franchise,  103 

'on  Future  Amendments  to  the  Con- 

stJf.utio  i,  103* 

on  the  Rights  of  Married  Women,        104 
on  the  Resolution  relative  to  the  Os- 

wego  Canal.  105( 

on  Education,  107 

on  the  Final  Vote  on  the  Constitution,  108 

Complimentary  of  the  President,          10S 

PARISH,  Mr.  a  delegate  from  Lewis. 

Remarks  on  the  Canals  and  Finances,          86 
PENNLMAX,  Mr.  a  delegate  from  Orleans. 
Remarks   on  the  Executive  Department, 

179,240,273,  303,  33 
on  the  Apportionment,  Election  and 
Tenure  of  Office  of  the  Legislature, 

375,  419, 74 
PEOPLE'S  RESOLUTION. 

Resolution  of  Mr.  SHAW,  14 

PERSONAL  LIABILITY. 
Resolution  of  Mr.  SHELDON, 
Resolution  of  Mr.  COOK,  22 

PERKINS,  Mr.   a  delegate  from   St.  Law- 
rence. 

Remarks  on  the  Arrangement  of  Commit- 
tees, and  the  Order  of  Business,  43, 44,  8 
on  the  Duties  of  Committees, 
on  the  Locality  of  Taxation,  12 

requesting    to  be    Excused    from   a 

Committee,  13 

on  his  Resolution  in  relation  to  the 
Salaries  of  Civil  Officers,  15 


on  his  Resolution  on  the  Removal  of 

Officials,  150 

on  the  Executive  Department,       173,  239 
on  the   Apportionment,  Election  and 
Tenure  of  Office  of  the  Legislature, 
375,  392,  .'JIM,  40D,  40->,  405,  420, 

123,  424,  428,  469;  476,  1067 
on  his  Minority   Report  on  the  Elec- 
tion of  State  Officers,  480 
on  the  Article  relative  to  the  Elec- 
tion  of   State   Officers,    497,    199, 
501,502,500,  508,  509,  510,  511-, 

517,  522,  5.11,  536,  537 
on  the  Judiciary   Article,  556,  635, 
652,  759,  794,  795,  801,  802,  809, 

839,  840 
on  the  Canals  and  Finances,  851,  936, 

941,  951 

on  Incorporations,  other  than  Bank- 
ing and  Municipal,   962,  969,  973, 

975,  981,  984,  1005 

on  Local  Officers,   -  1012 

on  the  Elective  Franchise,          1033,  1036 
on  Future  Amendments  to  the  Con- 
stitution, 1038,  1042 
on  the  Rights  and  Privileges  of  the 

Citizen,  ioe>2 

on  the  Feudal  Tenures,  1003 

on  Education,  1074 

on  the  Militia,  1075 

PETITIONS— of  the  Society  of  Friends,  112 
of  the  Trustees  of  Yates  Academy,  842 
for  Free  Schools,  526,  802 

of  the  Tuscarora  Indians,  128 

in  relation  to  Judicial  Practice,  166 

of  Wm.  H.  Remsen,  175 

relative  to  Negro  Suffrage,  220,  424 

relative  to  the  Canal  Policy  of  the 

State,  248 

relative  to  State  Indebtedness,  309 

for  the   Extension  of   the  Elective 

Franchise  to  Women,  2S4,  646 

of  the  National  Reform  Association, 

265,  981 

of  Burtis  Skidmore,  265 

for  the  Abolition  of  Capital  Punish- 
ment, 284 
for  the  Enlargement  of  the  Erie  Canal,   359 
relative   to  the   Rendition  Clause   in 

Constitution,  •  37} 

relative  to  the  Unfinished  Canals,  387 
relative  to  Right  of  Railroad  Corpora- 
tions to  take  Private  Property,  400 
relative  to  the  Elective  Franchise,  515 
for  a  State  Board  of  Assessors,  1000 
relative  to  the  Canals,  "  4913 
relative  to  the  Common  Pleas  of 

Cayuga,  443 

for  the  Completion  of  the  Canals,          685 
relative  to  the  Literature  Fund,  660 

of  the  Seneca  Indians,  454 

relative  to  the  Canals,  553 

relative  to  the  Literature  Fund,  521, 

553,  750 
of  Union  Academy,  (Queen's  co.)  946, 

1000,  588 
against  the  Election  of  Judges  by  the 

People,  565,766 

of  Clinton  Grammar  School,  734 

for  County  Courts,  734 


1136 


of  Cayuga  Academy,  7 

for  Elective  Judiciary,  7 

relative  to  Sabbath,  7 

of  George  Lawson,  89- 

of  Teachers  of  the  Moravian' Institute,  77 
of  the  Genesee  Wesleyan  Seminary,  77 
Against  Personal  Liability,  968,  776.  91 
of  Teachers'  Association  of  Utica,  76 
relative  to  Woman's  Rights,  76 

Against  Free  Schools,  76 

'  to  allow  Clergymen  to  Hold  Office,       91 
relative  to  Assessments,  98 

for  the  Abolition  of  the  New  York- 
Superior  Court,  100 
for  a  State  Board  of  Assessors,  101 
relative  to  the  Elective  Franchise,  104 
for  the  Abolition  of  the  New  York 

Superior  Court,  104 

PORTER,  Mr.  a  delegate  from  Saratoga. 

Remarks  on  the  Executive  Department,       24 
PRACTICE  OF   LAW. 

Resolution  of  Mr.  STRONG, 
OF  COURTS. 

Resolution  of  Mr.  STOW,  10 

PRIVATE  ROADS  AND  BRIDGES. 

Resolution,  10 

PRIVATE    PROPERTY— THE    TAKING 

THEREOF  FOR  PUBLIC  USE. 
Resolution  of  Mr.  JONES,  12 

PRESENTATION  OF  PETITIONS. 

New  Rule  proposed  by  Mr.  MARVIN,  86 

PRESIDENT— Mr.  JOHN  TRACY,  a  dele- 
gate from  Chenango. 

Remarks  on  taking  the  Chair.  17 

on  the  Adjournment  of  the  Conven- 
tion, 1082 
PRINTING  for  the  Convention,  18 
PRIVATE  PROPERTY— SECURITY  THERE- 
OF. 

Resolution  of  Mr.  RICHMOND,  118 

PURSUITS  OF  BUSINESS. 

Resolution  of  Mr.  SWACKHAMER,  913 

PUBLICATION  OF  THE  ARTICLES. 

Resolution  of  Mr.  JORDAN,  913 


QUALIFICATION  FOR  VOTERS. 

Resolution  of  Mr.  GREENE,  9] 

Resolution  of  Mr.  SHAVER,  125 

FOR  HOLDING  OFFICE. 
Resolution  of  Mr.  STOW,  167 

R 

RATE  OF  INTEREST. 

Resolution  of  Mr.  DANA,  96 

RETURN  OF  VOTES  CAST  IN  N.  YORK,  112 
RE.V1EDIES  ON  CONTRACTS. 

Resolution,  830 

RECESS. 

Discussion  thereon,  225 

REMOVA.L  OF  OFFICIALS. 

Resolution  of  Mr.  PERKINS,  156 

Discussion  of  Question,  1077 

REPORTS— FORM  OF. 

Resolution  of  Mr.  RHOADES,  156 

REGISTRATION— EXPENSE  OF. 

Resolution  of  Mr.  KENNEDY,  97 

RENT  CHARGES. 

Resolution  of  Mr.  JORDAN,  100 

REPORT  OF  THE  COMPTROLLER  IN 

RELATION   TO   THE  BANKS,  137 


to  the  Compensation  of  Judges,  781 

to  the  Value  of  the  Canals,  495 
to  the  Laws,  paid  to  the  Commissary 

General,  553 
tp  the  amount  paid  for  Canal  Damages,  248 

to  the  Expenses  of  the  Legislature,  284 

to  the  Debts  and  Revenues  of  the  State,  226 

to  the  School  Fund,  153 

to  the  Salt  Duties,  533 

to  the  amount  of  State  Stocks,  838 
REPORT  from  the  Clerk  of  the  1st  Circuit, 


2d  128, 226 

3d  128 

4th  175 

5th  182 

6ih  175 

7th  763 

8th  221 

the    Chancellor,   as   to    the 
Funds  in  his  Court,  337, 

633,  984 

the  Register  in  Chancery,  118,  196 
the    Assistant    Register    in 

Chancery,  155 

the  Clerk  in  Chancery,  843 

from  County  Clerks,  102 

on  the  Returns  from  the  Law 
Courts,  by  Mr.  J.  J.  TAY- 
LOR, 224,  795 
the  Secretary  of  State,  166 
on  Local  Officers,  163 
the  Regents  of  the  University,  372 
of  Jas.    Conner,  New   York 

County  Clerk,  226 

from  the  Executive  on  Par- 
dons, 224 

"     to  the  dura- 
tion of  the  Legislative  Ses- 
sions, 248 
from    Surrogates,    County 

Clerks,  &c.,  469 

of  the  Judiciary  Committee 

on  the  Funds  in  Chancery,    553 
of  Committee  No.  17  on  the 
Arrangement  of  Commit- 
tees, 43 
on  the  Printing  of  the  Consti- 
tutions of  the  other  States, 
by  Mr.  RUSSELL,                      50 
Address  to  the  People,              1082 
of  Committee  <  f  Revision,      1054 
ESOLUTION  of  Mr.   RHOADES,   on   the 

Preservation  of  Documents,  52 

of  Mr.    CHATFIELD,  on  the   hour  of 

Meeting,  52 

of  Mr.  RUSSELL,  for  a  Door-keeper  in 

Ladies'  Gallery,  65 

of  Mr.  HAWLEY,  on  the  Arrangement 

of  the  Journal,  103 

of  Mr.  A.  B.  WRIGHT,  Aon  the  Print- 
ing of  Documents,  105 
of  Mr.  STRONG,  on  a  Recess,  123 
of  Mr.  CHATFIELD,   to   provide  the 

Officers  with  Newspapers,  123 

of  Mr.    RHOADES,   on  the  Form   of 

Reports,  156 

of  Mr.  RUSSELL,  relative  to  a  Recess,    177 
of  Mr.  TALLMADGE,  on  the  Attend- 
ance of  Members,  185 
of  Mr.  STRONG,  relative  to  a  Recess,      185 


1137 


of  Mr.  ANGEL,  Change  of  Hour  of 
Meeting,  196 

of  Mr.  BAKER,  relative  to  the  Hour 
of  Meeting,  197 

of  Mr.  CHATFIELD,  relative  to  After- 
noon Sessions,  267 

of  Mr.  CHATFIELD,  relative  to  Hour 
of  Meeting,  288 

of  Mr.  SWACKHAMER,  on  the  Limi- 
tation of  Debate,  275,284 

of  Mr.  BURR,  on  the  Restriction  of 
Debate,  347 

of  Mr.  MANN,  on  the  same,  338 

of  Mr.  BROWN,  on  Afternoon  Ses- 
sions, 323 

of  Mr.  HAWLEY,  on  the  Arrangement 
of  the  Amendments,  372 

of  Mr.  MURPHY  on  the  Order  of 
Speaking,  395 

of  the  N.  Y.  City  Convention,  454 

of  Mr.  NICOLL,  on  Evening  Sessions,    934 

of  Mr.  ST.  JOHN,  on  the  Restriction 
of  Debate,  527 

of  Mr.  BROWN,  on  the  Hour  of  Meet- 
ing, 734 

of  Mr.  PATTERSON,  on  Evening  Ses- 
sions, 728 

of  Mr.  WHITE,  on  the  Order  of  Busi- 
ness, 782 

of  Mr.  STETSON,  to  terminate  De- 
bate on  the  Canals  and  Finances,  908 

of  Mr.  W.  TAYLOR,  to  Limit  Debate,    933 

of  Mr.  BAKER,  on  Evening  Sessions,    908 

of  Mr.  BRUCE,  relative  to  Discussion 
on  Rights  and  Privileges  of  the 
Citizen,  895 

of  iVlr.  BRUCE,  on  the  termination  of 
Deba'e  on  the  Canals  and  Finances,  913 

of  Mr.  BAKER,  to  terminate  Debate 
on  the  Judiciary,  715 

of  Mr.  BASCOM,  relative  to  Pay  of 
Messengers,  842 

of  Mr.  A.  W.  YOUNG,  to  terminate 
Debate  on  the  Article  in  relation  to 
the  State  Officers,  503 

of  Mr.  SWACKHAMER,  relative  to  the 
Report  on  the  Rights  and  Privi- 
leges of  the  Citizen,  1011 

of  Mr.  KIRKLAND,  on  the  Fees,  &c., 
of  Officers  of  County  Courts,  20 

of  Mr.  RHOADES,  relative  to  Officers 
holding  from  the  Governor  and  Ca- 
nal Board,  20 

Complimentary  to  Reporters,  1080 

relative  to  Signing  the  Constitution,    1080 

relative  to  Disposition  of  Constitu- 
tion, 1082 

Complimentary  to  President,  1082 

Relative  to  Clergymen,  1080 

Complimentary  to  Secretaries,  1082 

REVISION  OF  THE  ARTICLES— Report 

of  the  Committee  thereon,  1048 

RICHMOND,  Mr.  a  delegate  from  Genesee. 
Remarks  on  the  Arrangement  of  Commit- 
tees, and  the  Order  of  Business,  54, 

56,  57,  59,  68,  69,  528 

on  the  Locality  of  Taxation,  119 

on  the  manner  of  Committees  Re- 

130 
177 


.     porting, 

on  the  Title  of  Acts, 


117 


on  the  Executive  Department,  259, 
-     294,  297,  309,  311,  313,  318,  319, 

358,  359 

on  the  Apportionment,  Election  and 
Tenure  of  Office  of  the  Legislature, 
374,  378,  3bl,  400,  408,  414,  420, 

425,  435,  444,  467,  476,  480 
on  the  Article  in  relation  to  the  State 

Officers,  502,  505,  508,  518,  526 
on  the  Rights  and  Privileges  of  the 

Citizen,  542,  544,  550, 1055,  1064 

on  the  Judiciary  Article,  560,  652, 
653,  685,  758,  766,  768,  769,  770, 
778,  782,  789,  794,  797,  799,  801, 
802,  803,  815,  816,  821,  827,  831, 

835, 1071 
on  the  Canals  and  Finances,  850,  851, 

867,  879,  910,  929,  932,  942 
on  Incorporations,  other  than  Bank- 
ing and  Municipal,  964, 972,  975, 

979,  981,  982,  1005,  1073 
on  Local  Officers,  1007,  1012,  1013,  1021 
on  the  Elective  Franchise,  1037,  1044 
on  Education,  1074 

on  the  Militia,  1076 

RIKER,  Mr.  a  delegate  from  Queens. 

Remarks  on  the  Executive  Department. 
RHOADES,  Mr.  a  delegate  from  Onondaga. 
Remarks  on  the  Arrangement  of  Commit- 
tees, and  the  Order  of  Business,  47, 

60,  528 
on  the  Appointment  of  a  Door-keeper 

for  the  Ladies'  Gallery,  56,  67,  75 

on  the  Locality  of  Taxation,          122,  123 
on   the   manner  of   Committees  Re- 
porting, 144 
on  the   Executive  Department,  167, 
285,  293,  294,  298,  309,  319,  327, 

343, 353,  354 
on  the  Personal  Liability  Question, 

227,  25S 

on  the  Apportionment,  Election  and 
Tenure  of  Office  of  the  Legislature, 
378,  389,  391,  416,  426,  445,  446, 

447,  448,  449,  455,  461 
on  t) >e  Article  relative  to  the  State 
Officers,    505,  507,  508,  509,  511,  ' 

513,  514,  516,  520,  526 
on  the  Judiciary  Article,  653,  654, 
659,  711,  787,  815,  816,  817,  819, 

820,  834,  840 
on  the  Canals  and  Finances,  929,  940, 

942,  948 

on  Incorporations,  other  than  Bank- 
ing and  Municipal,  974 
on  Banking,  &c.,                                    994 
on  Local  Officers,                                  1010 
on  the  Elective  Franchise,          1031,  1066 
on  the  Rights  of  Married  Women,        1042 
RIGHTS  OF  MARRIED  WOMEN. 

Resolution  of  Mr.  WARD,  155 

of  Mr.  NELLIS,  80 

Discussion  of  question,  1038,  1056,  1064 

RIGHTS  OF  WIDOWS  AND  ORPHANS. 

Resolution  of  Mr.  WATERBURY,  96 

RIGHTS  AND    PRIVILEGES  OF   THE 

CITIZEN. 

Report  thereon  by  Mr.  TALLMADGE,  19G 

Discussion  thereon,  453,  959,  1050 

RIGHTS  OF  EQUITY,  &c. 


138 


Resolution  of  Mr.  O'CONOR,  94 

ROYAL   CHARTERS    AND    FRANCHI- 
SES. 

Resolution  of  Mr.  MURPHY,  117 

Discussion  thereon,  139 

RULES. 
Report  of  Committee  thereon  and  adoption 

thereof,  20,  21,  23 

Relative   to  Previous  Question,  by  Mr. 

WARD,  429 

Amendment  thereto  of  Mr.  CHATFIELD,     208 
of  Mr.  TAGGART,         278 
Enquiry  relative  thereto  of  Mr.  STRONG,       51 
RUGGLES,  Mr.  a  delegate  from  Dutchess. 
Remarks  on  the  Arrangement  of  Commit- 
tees and  the  Order  of-  Business,  49,  527 
on  the  Codification  of  the  Laws,  1 10 

on  the  Executive  Department,  215,     . 

293,  306,  315,316,319 

on  the  Apportionment,  Election  and 

Tenure  of  Office  of  the  Legislature, 

402,  418,  420,  428,  429,  432,  437, 

438,  440,  443,  444,  449,  450,  451, 

452,  453,  454 
on  the  Presentation  of  his  Report  on 

the  Judiciary,  481 

on  the  Rights  and  Privileges-  of  the 

Citizen,  547, 550 

on  hi&  Report  relative  to  the  Funds  in 

Chancery,  553 

on  the  Judiciary  Article,  555,  556, 
557,  558,  560,  587,  619,  760,  762, 

763,  771,  772,  777,  836,  1071 
on  Local  Officers,  1012 

on  the  Elective  Franchise,  1037, 1043, 

1044,  1066 
on  Future  Amendments  to  the  Co-n- 

stitution,  1038 

on  the  Resolution  relative  to  the  Os- 

wego  Canal,  1050 

on  Feudal  Tenures,  1049, 1051,  1062,  1063 
on  Education,  1075 

on  City  Courts,  1078 

KUSSELL,  Mr.  a  delegate  from  St.  Law- 
rence- 
Remarks  on  the  Arrangement  of  Commit- 
tees and  the  Order  of  Business,  57,  79,  80 
on  Resolution  for    Appointment  of 
Doorkeeper  to  Ladies'  Gallery ,  65, 

66,67 

on  the  Manner  of  Committees  report- 
ing, 129,  144 
on  the  Executive  Department,  175, 
177,  185>,  247,  290,  302,  303,  304, 

339,  343,  356,  357 

on  the  Presentation  of  the  Report  re- 
lative to  Banks  and  Banking,  183 
on  the  Personal  Liability  Question,      226 
on  the  Apportionment,  Election  and 
Tenure  of  Office  of  the  Legislature,    ' 

374,  377,  391,  392,  400,  414,  424 
on  the  Judiciary   Article,  804,  806, 

807,  812,  813,  815,  825,  837 
en  the  Canals  and  Finances,  871, 920, 

932,  933,  934,  943,  945,  954 
on  Incorporations  other  than  Banking 

and  Municipal,    974y  975,  979,  980,  982 
on  Banking,  &c.,  994,  995,  996,  997, 

999,  1010,  1012,  1013 
on  Local  Officers,  1010 


on  Future  Amendments  to  the  Consti- 
tution, 1038 

on  the  Elective  Franchise,          1018,  1065 

on  Mr.  BOWDISH'S  Resolution  relative 
to  Education,  1026 

on  Feudal  Tenures,  1052 

S 

SALT  SPRINGS. 

Resolution  of  Mr  RHOADES,  95 

DUTY — Resolution  of  Mr.  TAYIX>R,         96 
Mr  ST.  JOHN,      97 
SALARIES  OF  STATE  OFFICERS. 

Resolution  of  Mr.  SALISBURY,  140 

SALISBURY,  Mr.  a  delegate  from  Erie. 
Remarks  on  the  Executive  Department, 

285,  287,  288- 

on  the  Apportionment,  Election,  and 
Tenure  of  Office  of  the  Legislature, 

414,  473 
on  the  Article  in  relation  to  the  State 

Officers,  501,  507,  508 

on   the  Rights  and  Privileges  of  the 

Citizen,  551 

on  the  Judiciary  Article,        760,  779, 

806,  825,  S26 

SAFE  KEEPING  OF  THE  PUBLIC  MO- 
NIES. 

Resolution  of  Mr.  FLANDERS,  116 

SCHOOL  MONIES. 

Resolution  of  Mr.  A.  HUNTINGTOW,  128 

SECRETARIES—APPOINTMENT  OF,  18 

ASSJS-TANT— Discussion  of   Appoint- 
ment, 87,91,208,454,634 
SECURITY  FOR  COSTS. 

Resolution  of  Mr.  NELMS,  118- 

Separate  submission  of  Amendments, 

1078,  1079- 

SEPARATION  OF  BANKS  AND  STATE. 
•     Resolution  of  Mr.  Conely,  123 

SINGLE  SENATE  DISTRICTS. 

Resolution  of  Mr.  Chatfield,  95- 

SANFORD,  Mr,  a  Del.  from  St.  Lawrence. 

Remarks  on  the  Judiciary,  1071 

SHEPARD,  Mr.  a  delegate  from  New-York. 
Remarks  on  the  Appointment  of  a  Door- 
keeper for  the  Ladjes'  Gallery,  67,  77 
on  the  Resolution  of  Mr.  HARRISON, 

relative  to  the  Naturalization  Laws,      8t 
on  the  Locality  of  Taxation,  121 

on  Royal  Grants,  &c.  140,  161,  162: 

on  the  Executive  Department,      169, 

)75,  192,  297,  298,  340,  344,  350,  356- 
oa  the  Apportionment,  Election  arid 
Tenure  of  Office  of  the  Legislature, 
390,  409,   422,  436,  444,  449,  450, 

452,  454,  459,  460,  468,  478» 
en  the  Inspection  Laws,  1070» 

correction  ot  a  Reporter,  555- 

on  the   article   relative   to   the   State 

Officers,         509,  513,  514,  515,  516,  568- 
on  the  Judiciary  Article,       620,  752, 
762,   767.,    768,  794,  817,  818,  85>7, 

914,  94 •&,  949* 
on  Incorporations  other  th&n  Banking 

and  Municipal,  962.  968 

on  Backing,  &c.  992,  994,  995 

SHAFER,  Mr.  a  delegate  from  Albany, 
Remarks  o»  the  Executive  Department,        178- 


1139 


on  the  Apportionment,  Election  and 

Tenure  of  Office  of  the  Legislature,    42( 
on  local  officers,  101C 

on  the  Elective  Franchise,  1036,  1043 

SIMMONS,  Mr.  a  delegate  from  Essex. 
Remarks  on  the  Arrangement  of  Commit- 
tees and  the  Order  of  Business,  55,  68 
on  the  Resolution  for  Appointing  Ste- 
nographers, 63 
on  Mr.  HARRISON'S  Resolution  rela- 
tive to  the  Naturalization  Laws,  82 
on  the  manner  of  Committees  Keport- 

ing,  131,  148 

on  the  Removal  of  Officials,  159 

on  the  Executive  Department,  169, 
171,  178,  215,  230,  288,  293,  204 
305,  30(5,  311,  314,  316,  319,  322, 
344,  340,  349,  352,  353,  355,  358, 

360,  363 

on  the  Personal  LiabilityjQuestion,  226,  277 
on  the  Apportionment,  Election  and 
Tenure  of  Office  of  the  Legislature, 
393,  416,  419,   432,  433,435,436, 

443,  456,  477,  480 
on  the  Presentation  of  the  Reports  on 

the  Judiciary,  490 

on  the  Article  in  relation  to  the  State 

Officers,  478,  501,  502 

on  the  Judiciary  Article,  643,  661, 
681,  725,  763,  764,  765,  768,  772, 
777,  778,  812,  813,  821,  822,  824, 
825,  826,  823,  829,830,  831,  832, 

836,  837,  838,  947 
on  Incorporations,  other  than  Banking 

and  Municipal,  962,  967,  974,  981,  982 
on  Banking,  &c.  994,  995,  1005,  1020,  1021 
on  Local  Officers,  100S,  1009,  1010, 

1012,  1013 

on  thp  Elective  Franchise,  1035,  1065 

OB  Future  Amendments  to  the  Con- 
stitution, 1038 
on  the  Rights  of  Married  Women, 

1041,  1042,  1060 

on  Feudal  Tenures,  1051,  1052,  1062 

on  the  Preamble  to  Constitution,  1054 

on  the    Rights  and  Privileges  of  the 

Citizen,  1055 

on  the  Law  of  Libel,  1061 

SIMPLIFICATION  OF  PLEADINGS. 

Resolution  of  Mr.  SHEPARD,  735 

J.  J.  TAYLOR,  735 

W.  W,  TAYLOR,  735 

SMITH,  Mr.  a  delegate  from  Chenango. 
Remarks  on  the  Apportionment,  Election 
and  Tenure  of  Office  of  the  Legisla- 
ture, 414,  466, 1067 
on  the  Canals  and  Finances,  956 
on  the   Resofuiion  relative  to    the  Os- 

wego  canal,  1050 

SPENCER,  Wm.  11.  Mr.  a  delegate  from  Li- 
vingston. 

Remarks  on  the  Apportionment,  Election 
and  tenure  of  Office  ot  the  Legisla- 
ture, 444,  449,  778,  779 
on  the  Judiciary  Article,  794,  837 
on  the  Elective  Franchise,  1033 
SPENCER,  E.  B.  Mr.  a  delegate  from  ^ates. 

Remarks  on  the  Elective  Franchise,  1035 

STATE  OFFICERS— MODE   or  ELECTION, 
&c. 


Report  of  the  Standing  Committee  thereon,  1^9 
Minority  Report  thereon,  by  Mr.  PERKINS,  480 
Discussion  thereon,  480,  495,  504,  515, 

527,  533,  1070 
STATE  PRISON  COMMISSIONERS. 

Resolution  of  Mr.  RHOADES,  150 

STATE  STOCKS  OUTSTANDING. 

Resolution  of  Mr.  CHAMBERLAIN,  763 

STATE  LOANS. 

Resolution  of  Mr.  HAWLET,  323 

STATE  BOARD  OF  ASSESSORS. 

Resolution  of  Mr.  TOWNSEND,  298 

STATE  LIBRARIES. 
Resolution  in  relation  to  the  opening  there- 
of, 142 
STENOGRAPHERS— Mr.   CROOKER'S    Re- 
solution for  the  appointment  thereof,       51 
STEPHENS,  Mr.  a  delegate  horn  N.  York. 

Remarks  on  codifying  the  laws,  110 

on  the  manner  of  committees  report- 
ing, 135 
on  the  Executive  Department,     290, 

294,  295,  353,  359,  457 
on  the  Order  of  Business,  &c.  528,  532 
on  the  Judiciary  Article,  556, 659, 734, 

750,  799,  821,  836 
on  Incorporations,  other  than  Bank. 

ing  and  Municipal,  973 

STETSON,  Mr,  a  delegate  from  Clinton. 
Remarks  on  the  arrangement  of  Commit- 
tees and  the  order  of  business,  48,  58,  528 
on  the  Locality  of  Taxation,  120 

on  the  Separation  of  Bank  and  State,     124 
on  the  manner  ot"  Committees  Report- 
ing, 133 
on   the   Executive  Department,  153, 
286,  288,   293,  301,   303,  306,  307, 
316,322,   327,  333,  339,343,344, 

346,  350,  351,  352,  355,  359 

on  ihe  Apportionment,   Election  and 

Tenure  of  Office  of  the  Legislature, 

378,398,  414,  415,   417,427,428, 

433,  445,  447,   449,  453,  464,  465, 

46,9,  477,  478,  1067 
on  the  Canals  and  Finances,  864,  866, 

874,  911,912,  928,  938,  952,  955 
on  Incorporations  other  than  Banking 

and  Municipal,  973,  983 

on  Banking,  &c.,  992,  996,  998 

on  Local  Officers,  1008,  1009 

on  the  Rights  of  Married  Women,       1060 
Sr    JOHN,   Mr.  a  delegate  from  Otsego. 
Remarks  on  the  Apportionment,  Election 
and  Tenure  of  Office  of  the  Legis- 
lature, 428,  458 
on  the  Article   in   relation  to  the  State 

Officers,  509 

on  the  Judiciary,  614,  761,  836 

on  the  Canals  and  Finances,  954 

on  Local  Officers,  1012 

on  the  Rights  of  Married  Women, 

1042, 1064 

on  the  pay  of  Officials,  1078 

STOW,  Mr.  a  delegate  from  Erie. 
Remarks  on  the  Arrangement  of  Commit- 
tees, Order  of  Business,  &c.  75 
on  Codifying  the  Laws,                            110 
on  his  Resolution  in  relation  to  the  ta- 
king of  Private  Property  for  Public 
Purposes,                                              118 


1140 


on  the  Request  of  Mr.  PERKINS  to  be 
excused  from  serving  on  a  Com'tee,  138 

on  his  Resolution  relative  to  the  Ap- 
pointment of  Judges,  141 

on  the  Executive  Department,  170,  • 
171,  197,  290,  292,  294,  295,  296, 
304,  306,  307,  336,  343,  346,  353, 

357,  358,  360,  371 

on  the  Titles  of  Acts,  177 

^on  the  Apportionment,  Election  and 
Tenure  of  Office  of  the  Legislature, 
387,  408,  410,  414,  419,  438,  444, 

445,  461 

on  the  Article  in  relation  to  the  State 
Officers,  514 

on  the  Rights  and  Privileges  of  the 
Citizen,  546,  1054,  1055,  1056,  1061 

on  the  Judiciary  Article,  725,  759, 
760,  769,  780,  783,  786,  787,  792, 
795,  801,  804,  806,  812,  814,  817, 

819,  820,  1071 

on  the  Canal&  and  Finances,  879,  892, 

895,  928,  938,  951,  952 

on  Incorporations  other  than  Banking 
and  Municipal,  966,  967 

on  Banking,  &c.,  992,  996,  998 

on  Local  Officers,  1007,  1008,  1009 

on  the  Elective  Franchise,  1031, 1037, 

1044,  1045,  1065,  1066 

on  the  Rights  of  Married  Women,        1042 

on  the  Resolution  relative  to  the  Os- 
wego  Canal,  1050 

on  Feudal  Tenures,  1052 

on  the  Final  Vote  on  the  Constitution,  1081 
STRONG,  Mr.  a  delegate  from  Monroe. 
Remarks  on  Arrangement  of  Committees 

and  the  Order  of  Business,  40 

on  the  Appointment  of  a  Doorkeeper 
for  the  Ladies'  Gallery,  67 

on  the  Resolution  relative  to  the  Tax- 
ation of  Mortgages,  128,175,176 

on  the  Reque-t  of  Mr.  PERKINS  to  be 
excused  from  serving  on  a  Commit- 
tee, 138 

on  the  Manner  of  Committees  report- 
ing, 143 

on  the  Removal  of  Officials,  157 

on  the  Executive  Department,  164, 

232,  262 

on  his  Resolution  for  the  taking  of  a 
Recess,  185 

on  the  Apportionment,  Election  and 
Tenure  of  Office,  376,  405,  423, 

434,  456,  463, 466 

on  the  Article  in  relation  to  the  State 
Officers,  497,  508,  509,  516,  523,  525 

on  the  Rights  and  Privileges  of  the 
Citizen,  541 

on  the  Judiciary  Article,  603,  735, 
759,  768,  779,  780,  787,  789,  794, 

795,  796,  814,  816,  817,  830,  838 

on  the  Canals  and  Finances,  896 

on  the  Equalization  of  Boards  of  Su- 
pervisors, 1072 

on  the  Final  Vote  on  the  Constitu- 
tion, 1081 

on  the  Proposition  relative  to  the 
Chenango  Canal,  961 

on  Incorporations  other  than  Bank- 
ing and  Municipal,  967,  968,  981,  1021 


on  Local  Officers,  1009 

on  the  Elective  Franchise,          1034,  1036 
SUITS  AGAINST  THE  STATE. 

Resolution  of  Mr.  SWACKHAMKR,  166 

SUBDIVISION  OF  TOWNS  INTO  TITH- 

INGS,  &c. 

Resolution  of  Mr.  HUNT,  111 

SURROGATES. 

Resolution  of  Mr.  J.  J.  TAYLOR,  95 

of  Mr.  CLYDE,  37 

SUPREME  COURT  JUDGES. 

Resolution  of  Mr.  WATERBURY,  735 

SUFFRAGE— COLORED,  1078 

SWACKHAMER,  Mr.  a  delegate  from  Kings. 
Remarks  on  the  Arrangement  of  Commit- 
tees and  the  Order  of  Business,  31, 

37,  45,  54,  75 
on  the  Appointment  of  a  Doorkeeper 

for  the  Ladies'  Gallery,  66 

on  the  Executive   Department,  167, 

182,  286,  312,  316r  317,  318,  357,  359 
on  his  Resolution  respecting. Loans  to 

Colleges,  372 

on  the  Apportionment,  Election  and 
Tenure  of  Office  of  the  Legislature, 
393,  422,  423,  428,  429,  432.  448, 

455,  472,  474,  477 
on  the  Rights  and  Privileges  of  the 

Citizen,  544,  549,  550,  1056,  1062 

on  the  Judiciary  Article,  558,  590, 
607,  654,  656,  683,  684,  762,  766, 
787,  790,  797,  799,  802,  806,.  812, 

813,  814,  818,  1071 

on  the  Canals  and  Finances,  934,  942,  945 
on  Incorporations  other  than  Banking 
and  Municipal,  966,  971,  980,  983, 

1005,  1006 

on  Banking,  &c.,  993,  997,  1000 

on  Local  Officers,   1007,  1008,  1009, 

1012,  1013 
on  the  Elective  Franchise,  1034, 1036, 

1037, 1044 
on  the  Rights  of  Married  Women,        1039 

T 

TAGGART,  Mr.  a  delegate  from  Genesee, 
Remarks   on  the  Executive   Department, 

284,  286,  299,  302,  304,  308,  351,  353 
on  the  apportionment,  election  and  te- 
nure of  Office  of  the  Legislature, 
374,  396,  414,  419,  420,  423,  428, 

429,  448,  458,  1068 
on  the  Article  in  relation  to  the  State 

Officers,  502,  504,  509,  518,-  534 
on  the  Rights  and   Privileges  of  the 

Citizen,  551,  1055,  1056 

on  the  Judiciary  Article,  556,  559, 
567,  751,  761,  7S2,  70S,  SCO,  801, 

814,  822,  836,  837,  1071 
on  Banking,  &c  ,  994, 1073 

on  the  Elective  Franchise,  1066 

TALLMADGE,  Mr.  a  delegate  from 

Dutchess. 

Remarks  on  the  Arrangement  of  Commit- 
tees, and  the  order  of  Business,  41, 

47,  348 

on  Mr.  HARRISON'S  Resolution,  rela- 
tive to  the  Naturalization  Laws,    82,  84 
on  the  Duties  of  Committees,  97 

on  the  Locality  of  Taxation,  121 


1141 


on  the  Resolution  relative  to  the  At- 
tendance of  Members,  186 
on  the  Executive  Department,  193, 
219,  286,  290,  294,  295,  296,  300, 

301,  3U4>  yi«>,  3-21,  324,  326,  327,  337 
on  presenting    the    Report    on    the 
Rights  and   Privileges  of  the  Citi- 
zen, 196,  345,  346,  353,  357 
on  the   apportionment,   election   and 
tenure  of  Office  of  the  Legislature, 
374,  382,  397,  401,  402,  407,  414, 

415,  427,  435,  444,  445,  458,  464 
on  the  Article  in  relation  to   State 

Officers,  504,  514,  515,  516,  533 
on  the  Rights  and  Privileges  of  the 

Citizen,  537, 542> 

on  the  Judiciary  Article,  710,  751, 
755,  769,  779,  780,  781,  786,  791, 
797,  803,  810,  822,  829,  833,  835, 

836,  909,  952 

on  the  Militia,  1049 

on  the  Preamble  to  the  Constitution,   1054 
on  the  Law  of  Libel,  1061 

on  Education,  1074 

on  Separate  Submission,  ,         1078 

TAYLOR,  J.  J.  Mr.  a  delegate -from  Tioga. 
Remarks  on  the  Apportionment,  Election 
and  Tenure  of  Office  of  the  Legisla- 
ture, '419,443 
on  the  Judiciary  Article,    626,  732, 
776,  777,  800,  802,  806,  813,  824, 

&S25,  826,  940,  946 
on   his   Proposition    relative  to  the 

Chenango  Canal,  960,  961 

on  Banking,  &c.,  997 

on  Mr,  MAXWELL'S  Proposition  rela- 
tive to  the  Lateral  Canals,  1038 
TAYLOR,  W.  Mr.  a  delegate  from  Onondaga. 
Remark?  on  the  Arrangement  of  Commit- 
tees, and  the  Order  of  Business,  31, 

44,  51,  74 

on  the  manner  of  Committees    Re- 
porting, 134 
on  the  Executive   Department,   189, 
208,  247,  295,  305,  306,  308,  311, 

313,  315,  325,  328,  345,  357,  359,  363 
on  Presenting  his  Report  relative  to 
the  Apportionment,  Election  and 
Tenure  of  Office  of  the  Legislature,    266 
on  the  Discussion  thereof,   373,  376, 
381,  383,  385,  391,  398,  433,  436, 
443,  444,  454,  456,  461,  464,  466, 

468,  473 
on  the  Rights  and  Privileges  of  the 

Citizen,  453 

on  the  Judiciary  Article,  652,  655, 
656,  735,  758,  759,  763,  769,  781, 

797,  807,  808,  813,  818,  827,  912,  922 
on  the  Canals  and  Finances,  937,  938, 

939,  944,  948,  949,  951 ,  953,  1072 
on  the  Elective  Franchise,  1017, 1038, 1066 
TAXATION — EQUALIZATION  THEREOF. 

Resolution  of  Mr.  LOOMIS,  86 

Resolution  of  Mr.  MORRIS,  118 

Report  of  MI-.TOWNSEND,  1022, 1068 
OF  FOREIGNERS. 

Resolution  of  Mr.  MORRIS,  96 

LOCALITY  OF. 

Resolution  of  Mr.  MORRIS,         118 
OF  MORTGAGES. 


Mr.  STRONG'S  Resolution,    128,175 
UNIFORM. 

Resolution  of  Mr.  RTJGGLES,        289 
Resolution  of  Mr.R.  CAMPBELL,  104 
TILDEN,  Mr.  a  delegate  from  New  York. 
Remarks  on  the  Arrangement  of  Commit- 
tees, and  order  of  Business,  29,  34, 
40,  47, 58, 68,  71,  72,  73, 74,  75,  78, 

80,  531,  533 

on  the  Executive  Department,    167, 
284,  286,  302,  303,  309,  326,  346, 

350,  351 

on  the  apportionment,  election  and 
tenure  of  Office,  of  the  Legislature, 

376,  392,  407,  413,  454,  455 
on  the  Article   relative  to  the  State 

Officers,  514,  524,  526 

on  the  Judiciary  Article,  685,  751, 

763,  766,  767,  768,  773,  785 
on  the  Canals  and  Finances,  877,  894, 

912,  928,  933,  934,  938,  939 
on  Incorporations,  other  than  Bank- 

and  Municipal,        974,  1006, 1013,  1020 
on  Banking,  997,  999, 1000,  1001 

on  the  Elective  Franchise,  1043, 1044, 

1045,  1048 

TOWNSEND,  Mr.  a  delegate  from  New  York. 
Remarks  on  the  Arrangement  of  Commit- 
tees and  the  Order  of  Business,  40, 

75,77,  79 

on  Royal  Grants,  &c.,  140 

on  the  Taxation  of  Mortgages,  176 

on  the  Executive  Department,    303,  306 
on  the  Apportionment,  Election  and 
Tenure  of  Office  of  the  Legislature, 

389,  414,  429,  432,  458 
on   the  Article   relative  to  the  State 

Officers,  514 

on  the  Judiciary   Article,  818,  823, 

828,  836, 837 

on  the  Canals  and  Finances,  857,  923 

en  Incorporations,  other  than  Bank- 
ing and  Municipal,    962,  966,  975,  1073 
on  Banking,  &c.,          992,  998,  1Q01, 1010 
on  Local  Officers,  1012 

on  the  Rights  of  Married  Women,        1041 
on  the  Exemption  of  the  Homestead 

from  Execution,  1064 

on  the  Equalization  of  Taxation,          1068 
on  Education,  1075 

TITLE  OF  ACTS. 

Resolution  ot  Mr.  TAGGART,  176 

TREASON — DEFINITION  THEREOF. 

Resolution  of  Mr.  HARRISON,  310 

TRIAL  BY  JURY. 

Resolution  of  Mr.  MILLER,  163 

TUTHILL,  Mr.  a  delegate  from  Orange. 
Remarks   on  Incorporations,  other  than 

Banking  and  Municipal,  975 

on  Education,  1074 

TWO-THIRD  CLAUSE. 

Resolution  of  Mr.  ALLEN,  95 

u 

UNFINISHED  BQSI NESS,  OFTHE  COURTS.    812 
USURY  LAWS— Resolution  ut  Mr.  CONELY,      97 


VACHE,  Mr.  a  delegate  from  New-York. 
Remarks  on  ihe  Executive  Department, 


254 


1142 


VAN    SCHOONHOVEN,    Mr.  a  delegate 

from  Rensselaer. 

Remarks  on  the  locality  of  taxation,  120 

on  the  manner  of  Committees  report- 
ing, 136,243 
on  the  Executive  Department,  301, 

308,  350,  351,  353,  357 
on   the  Apportionment,  Election  and 
Tenure  of  Office  of  the  Legislature, 

392,  443,  446,  458,  467 
on  the  Article  in  relation  to  the  State 

Officers,  500,  519,  520,  537,  548 

on  the  Judiciary  Article,        753,  764, 
763,   78%  785,  805,  806,  807,  817, 

818,  819,  820,  823,  826,  828 
on  the  Canals  and  Finances,   849, 853 

908,  909,  927,  937,  942,  954 
on  Incorporations,  other  than   Bank- 
ing and  Municipal,     962,  967,  968, 

969,  977,  980 

VACANCIES  IN  OFFICE— How  FILLED. 
Report  of  Mr.  ANGEL,      1005,  1006,  1021  1022 
on  Local  Officers,  1007,  1008 

on  Mr.  BOWDISH'S  resolution  relative 

to  Education,  1026 

on  the  Elective  Franchise,  1033,  1036 

on  Feudal  Tenures,  >  1051 

on  Municipal  Incorporations.       1054,  1072 
on  the  Rights  and   Privileges  of  the 

Citizen,  1055 

on  the  final  vote  on  the  Constitution,   1080 
VIVA  VOCE  VOTING. 

Resolution  of  Mr.  KENNEDY,  243,  1078 

W 

WARD,  Mr.  a  delegate  from  Westchester. 
Remarks  on  the  Arrangement  of  Commit- 
tees and  the  Order  of  Business,  26, 

37,  43,  46 

on  his  Report  on  the  same,          61,  71,  80 
ofl  the  resolution  for  the  Appointment 

of  Stenographers,  ,62 

on  Mr.   HARRISON'S   Resolution  rela- 
tive to  the  Naturalization  Laws,  81 
on  Mr.  KIRKLAND'S  Resolution  rela- 
tive to  the  Court  of  Errors,                  106 
on  the  Arrangement  of  the  Amend- 
ments,                                                    127 
on  the  manner  of  Committees  Report- 
ing,                                                      146 
on  the  Executive  Department,      154, 

199,287,  292,  314,  320,  349 
on  the   Apportionment,  Election  and 
Tenure  of  Office  of  the  Legislature, 

392,430,  433,448,  452,  460 
on  the  presentation  of  his  Report  on 

the  Militia,  443 

on  the  Judiciary  Article,  746 

on  the  Canals  and  Finances,  898,  937 

on  the  Militia,  1049 

WATERBURY,  Mr.  a  delegate  from  Dela- 
ware. 

Remarks  on  the  Locality  of  Taxation,  123 

on  the  Manner  of  Committees  Report- 


ing, 


137 


on  the  Executive  Department,       154, 

292,  294,  297,  317,  322 
on  the  Article  relative  to  the  State  Of- 
ficers, 507,  508,  728,  755,  759 
on  the  Judiciary  Article,       780,  795, 

799, 801,  807,  812,  813,  826,  828,  840 


on  the  CJanals  and  Finances,  946 

on  Feudal  Tenures,  1052 

on  Incorporations  other  than  Banking 

and  Municipal,  977 

on  the  Elective  Franchise,          1031,  1035 
WHITE,  Mr.  a  delegate  from  New-York. 
Remarks  on  the  arrangement  of  Commit- 

tees  and  the  Order  of  Business,  29 

on  the  Apportionment,  Election  and 
Tenure  of  Office  of  the  Legislature, 

401 ,  408, 409,  440,  461,  465,  477 
on  the  Judiciary  Article,  495,  753, 

756,  779 
on  the  Article  in  relation  to  the  State 

Officers,  507, 513 

on  the  Canals  and  Finances,  924, 932, 

934,  951 

on  Feudal  Tenures,  1052 

on  Incorporations  other  than  Banking 

and  Municipal,  974,  977,  978 

on  Banking,  &c.,  994,  998 

on  the  Resolution  relative  to  the  Os- 

wego  Canal,  1050 

WILLARD,  Mr.  a  delegate  from  Albany. 
Remar-ks  on  the  Arrangement  of  Commit- 
tees and  the  Order  of  Business,  29 
on  the  Judiciary  Article,                         806 
on  Education,                                          1074 
WORDEN,  Mr.  a  delegate  from  Ontario. 
Remarks  on  the  Arrangement  of  Commit- 
tees and  the  Order  of  Business,  77, 

78,  80,  533 

on  the  Duties  of  Committees,  98 

on  the  Naturalization  of  Citizens,          105 
on  the  Funds  iu  Chancery,  '    126 

on  the  Executive  Department,  178, 
200,  205,  260,  296,  298,  301,  305, 
306,  307,  308,  322,  343,  344,  357, 

358,  368 

on  the  Apportionment,  Election  and 
Tenure  of  Office  of  the  Legislature, 
382,  385,  399,  402,  435,  439,  456, 

475,  476,  477,  478 

on  presenting  a  Plan  for  a  Judiciary,    528 
on  the  Article  in  relation  to  the  State 

Officers,  509,  514,  536 

on  the  Rights  and  Privileges  of  the 

Citizen,  540,  541,  542,  544,  548 

on  the  Judiciary  Article,  556,  557, 
563,  589,  641,  642,  657,  771,  777, 
794,  795,796,  816,  831,  832,  849, 
850,  878,  895,  909,  912,  931,  932, 
934,  941,  942,  945,  946,  955,  957, 

1105 

on  Banking,  &c.,  997 

on  Incorporations  other  than  Banking 

and  Municipal,  1006,  1021,  1022 

on  Local  Officers,     1008,  1009,  1010,  1013 
on  Mr.  BOWDISH'S  Resolution  relative 

to  Education, 

on  the  Elective  Franchise,          1035,  1048 
on  Feudal  Tenures, 

on  the  Rights  of  Married  Women,        1060 
on  the  Law  of  Libel,  1061 

on  the  Final  Vote  on  the  Constitution,  1081 
WRIGHT,  W.  B.  Mr.  a  delegate  from  Scho- 

harie. 

Remarks  on  the  Executive  Department,       531 
on  the  Apportionment,  Election  and 
Tenure  of  Office  of  the  Legislature,    379 


1143 


on  the  Judiciary,  648 

WRIGHT,  A.  B.  Mr.  a  delegate  from  Erie. 
Remarks  on  the  Judiciary  Article,  794 

Y 

YOUNG,  Mr.  a  delegate  from  Wyoming. 
Remarks  on  the  Executive  Department 

198,  210,  338,  354,  358,  359 
on  the  Apportionment,  Election  and 
Tenure  of  Office  of  the  Legislature, 


374,  379,  401,  417,  419,  423,  429, 

432,447,418,  441),  408,473 
on  the  Article  in  relation  to  the  State 

Officers,  498 

on  the   Rights  and  Privileges  of  the 

Citizen,  552 

on  the  Judiciary  Article,  780 

on  Local  Officers,  JQ08 

on  the  Elective  Franchise,          1031,  1048 


ERRATA. 


On  page  187 — 1st  column,  lines  8  and  9  from  the  bottom,  for  "to  confine  themselves 
to  the  amending  of,"  read  "to  destroy  the  whole — for 
one,  he  was  disposed  to  confine  himself  to  amending." 
2d  column,  line  35  from  bottom,  strike  out  "But  even." 

"          line  10,  strike  out  "that." 

page  188 — 1st  column,  line  5  from  top,  for  "devise,"  read  "revise." 
line  39,  for  "un,"  read  "on  " 
line  42,  strike  out  "one." 
line  43,  for  "several,"  read  "seven." 
line  44,  for  "all,"  read  "had.:> 

2d  c    umn,  line  5  from  the  top,  for  "under,"  read  "upon." 
line  8,  for  "in  the  union,"  read  "to  the  contract." 
line  31,  strike  out  "Because." 
line  36,  for  "prevented  for,"  read  "effected." 
line  44,  for  "that,"  read  "the." 
line  54,  strike  out  "not." 
line  56,  for  "so,"  read  "otherwise." 
last  line,  for  "committee,"  read  "constitution." 

page  189— 1st  column,  line  6  from  bottom,  for  "or  any,"  read  "or  in  any." 
page  635 — 1st  column,  lines  33d  and  34th  from  top  of  page,  Mr.  RICHMOND  is  attri- 
buted as  saying  "three  dollars  a  day  for  one  small  pray- 
er?" which  should  be  credited  to  some  other  person,  who 
spoke  in  his  vicinity. 

page  876 2d  column,  line  31  from  the  top,  instead  of  "costs,"  read  "interest." 

"          line  38  from  top,  instead  of  "part  of  the  canal  fund,"  read 
"part  of  the  general  fund." 


d  /  ^ 


36116 


f 


